§ 5 — Persons liable

Massachusetts § 5

• Jurisdiction: Massachusetts
• Part I: ADMINISTRATION OF THE GOVERNMENT
• Title II: EXECUTIVE AND ADMINISTRATIVE OFFICERS OF THE COMMONWEALTH
• Ch. 21E: MASSACHUSETTS OIL AND HAZARDOUS MATERIAL RELEASE PREVENTION AND RESPONSE ACT

Text

Section 5. (a) Except as otherwise provided in this section, (1) the owner or operator of a vessel or a site from or at which there is or has been a release or threat of release of oil or hazardous material; (2) any person who at the time of storage or disposal of any hazardous material owned or operated any site at or upon which such hazardous material was stored or disposed of and from which there is or has been a release or threat of release of hazardous material; (3) any person who by contract, agreement, or otherwise, directly or indirectly, arranged for the transport, disposal, storage or treatment of hazardous material to or in a site or vessel from or at which there is or has been a release or threat of release of hazardous material; (4) any person who, directly, or indirectly, transported any hazardous material to transport, disposal, storage or treatment vessels or sites from or at which there is or has been a release or threat of release of such material; and (5) any person who otherwise caused or is legally responsible for a release or threat of release of oil or hazardous material from a vessel or site, shall be liable, without regard to fault, (i) to the commonwealth for all costs of assessment, containment and removal incurred pursuant to sections three A, four, five A, five B, and eight to fourteen, inclusive relative to such release or threat of release, (ii) to the commonwealth for all damages for injury to and for destruction or loss of natural resources, including the costs of assessing and evaluating such injury, destruction or loss, incurred or suffered as a result of such release or threat of release, (iii) to any person for damage to his real or personal property incurred or suffered as a result of such release or threat of release, and (iv) to any person for any liability that another person is relieved of pursuant to the fourth paragraph of section four. Except as provided in paragraphs (b) and (k), such liability shall be joint and several.(b) Any person otherwise liable for any costs or damages set forth in subclauses (i), (ii), (iii) and (iv) of paragraph (a) who establishes by a preponderance of the evidence that only a portion of such costs or damages is attributable to a release or threat of release of such oil or hazardous material for which he is included as a party under clauses (1), (2), (3), (4) or (5) of said paragraph (a) shall be required to pay only for such portion.No person who is liable solely pursuant to clause (1) of paragraph (a) and who did not own or operate the site at the time of the release or threat of release in question and did not cause or contribute to such release or threat of release shall be liable to any person who is liable pursuant to clauses (2), (3), (4), or (5) of said paragraph, except that any such person liable solely pursuant to clause (1) of paragraph (a) shall be liable to the commonwealth as set forth in paragraph (d).(c) Subject to the limitation provided in paragraph (d), there shall be no liability under paragraph (a) for a person otherwise liable who can establish by a preponderance of the evidence, (A) that the release or threat of release of oil or hazardous material and the damages resulting therefrom were caused by:(1) an act of God;(2) an act of war;(3) an act or omission of a third party other than an employee or agent of the person, or than one whose act or omission occurs in connection with a contractual relationship existing directly or indirectly, with the person, except where the sole contractual arrangement arises from a published tariff and acceptance for carriage by a common carrier by rail, if the person establishes by a preponderance of the evidence that he exercised due care with respect to the oil or hazardous material, that he took precautions against forseeable acts or omissions of any third party and the consequences that could forseeably result from such acts or omissions, and that he complied with all notification requirements of section seven; or(4) any combination of the foregoing paragraphs, or (B) with respect to liabilities under subclauses (i) and (ii) of paragraph (a), that the substance or amount thereof released or threatened to be released does not represent a long or short term danger to the public health, safety, welfare or the environment.(d) Any person whose property has been the site of a release of hazardous material for which the department has incurred costs for assessment, containment or removal pursuant to sections three A, four, five A, five B, eight, nine, ten, eleven, twelve, thirteen or fourteen, and who can establish by a preponderance of the evidence that he is otherwise eligible for the defenses set forth in paragraph (c) shall be liable to the commonwealth only to the extent of the value of the property following the department's assessment, containment and response actions, less the total amount of costs reasonably paid by said person for carrying out assessment, containment and response actions in compliance with the Massachusetts Contingency Plan and all other applicable requirements of this chapter.(e) All persons liable pursuant to this section who are liable for a release or threat of release for which the commonwealth incurs costs for assessment, containment and removal shall be liable, jointly and severally, to the commonwealth for their liability as set forth in this section.In an action for recovery by the commonwealth of the costs it incurs for assessment, containment and removal, for the purpose of inducing the party in question and others to voluntarily and without delay participate in carrying out and paying for response actions, and not for the purpose of imposing a penalty, the commonwealth shall have the right to seek and recover more than the actual costs it incurs for assessment, containment and removal, subject to the following provisions.In cases where the department has issued an order pursuant to sections nine and ten to a person liable pursuant to this chapter and such person has unreasonably or in bad faith failed or refused to comply with such order, the court shall award the commonwealth not less than two times nor more than three times the full amount of its response costs, plus litigation costs and reasonable attorneys' fees, against such liable person. In such an action, the burden of proof shall be on such person to persuade the court by a preponderance of the evidence that it acted reasonably and in good faith in failing or refusing to comply with the department's order. If such person so persuades the court, such person's liability to the commonwealth for response action costs in that action shall be only the department's actual recoverable response costs, plus litigation costs and reasonable attorneys' fees.In all cases not provided for in the preceding paragraph, the court may award the commonwealth up to three times the full amount of its response costs, plus litigation costs and reasonable attorneys' fees, against a person liable pursuant to this chapter. In such an action, the burden of proof shall be on the commonwealth to persuade the court by a preponderance of the evidence that such person acted unreasonably or in bad faith in not carrying out a response action or actions for which the commonwealth is seeking recovery of more than its actual response costs, aside from litigation costs and reasonable attorneys' fees. If the commonwealth so persuades the court, the court shall use its equitable discretion to determine the appropriate multiple of response costs, not to exceed three times the response costs, which shall be awarded to the commonwealth against such liable person, plus litigation costs and reasonable attorneys' fees. If the commonwealth does not so persuade the court, such person's liability to the commonwealth for response costs in that action shall be only the department's actual recoverable response costs, plus litigation costs and reasonable attorneys' fees.Without limiting the generality of the foregoing, solely for the purpose of determining whether the commonwealth's recovery may exceed its actual response costs, plus litigation costs and reasonable attorneys' fees, and not for any other purpose, the court shall find that a person against whom the commonwealth seeks such recovery has reasonable grounds and a good faith basis for failing or refusing to perform or pay for a response action for which the commonwealth is seeking such recovery if, within a reasonable time after first being notified by the department that the department wants said person to perform or pay for such response action or actions, said person asserts and demonstrates that performing or paying for such response action or actions was beyond his technical, financial or legal abilities, or that he was not given adequate notice and reasonable opportunity to perform or pay for such response action or actions.(f) No indemnification, hold harmless, or similar agreement or conveyance shall be effective to transfer from the owner or operator of any vessel or site or from any person who may be liable for a release or threat of release of oil or hazardous material under this section, to any other person the liability imposed under this section. Nothing in this paragraph shall bar any agreement to insure, hold harmless, or indemnify a party to such agreement for any liability under this section.(g) If a person is not otherwise liable for a release or threat of release of oil or hazardous material pursuant to this chapter, such person shall not become liable solely by the mere act of either retaining or paying for the retention of a waste site cleanup professional licensed pursuant to sections nineteen through nineteen J of chapter twenty-one A to conduct a response action or portion of a response action at or for a site or vessel; provided, the response action or portion of a response action is conducted in compliance with this chapter and the Massachusetts Contingency Plan.(h) Any person who owns a one- to four-family residence that is a site at which the department has incurred costs for response actions shall not be liable to the department for those costs if he can establish by a preponderance of the evidence that:—(1) he is not a person described in clauses (2), (3), (4), or (5) of paragraph five (a); and(2) the site was being used exclusively as a one- to four-family residence throughout his ownership and he claimed permanent residency at the site; and(3) he immediately notified the department of the release of the oil or hazardous material upon the site as soon as he had knowledge of it.The defense established by this subsection shall not apply (1) if the department can establish by a preponderance of the evidence that said owner knew or had reason to know of the release when he became the owner of the residence or (2) to the cost of any response action necessitated by the leakage of oil from leaking underground storage tanks used to contain oil and underground pipes ancillary thereto or ancillary to above ground storage tanks at the site unless the owner can establish by a preponderance of the evidence that such tanks and pipes were not located on the site at the time of, or installed after the acquisition of the site, and he did not know or have reason to know of the release at the time he acquired ownership or possession of the site. In no event shall said owner be deemed to have had reason to know of the release of oil or hazardous material on the site unless a reasonable inquiry would have disclosed such presence at the time when the site was acquired by said owner, so long as the purchase price paid by said owner bore a reasonable relationship to the value of the site in the absence of oil or hazardous material. For the purposes of this paragraph, a reasonable inquiry shall mean visually inspecting the site for obvious signs of the release of oil or hazardous material. Should such visual inspection indicate that oil or hazardous material had been released at the site, a reasonable inquiry shall also include a further assessment to be performed by or under the supervision of a registered professional engineer, hydrogeologist or other qualified scientist with expertise in such matters. The defense established by this paragraph shall apply to all outstanding claims for costs by the department for response actions conducted or maintained since March twenty-fourth, nineteen hundred and eighty-three.(i) Notwithstanding any other provision of this chapter, no person who is otherwise liable for a release or threat of release of oil or hazardous material pursuant to this chapter shall avoid, reduce or postpone such liability or such person's ability to pay for such liability, or be allowed to avoid, reduce or postpone such liability or such person's ability to pay for such liability, by (1) establishing any form of estate or trust if such estate or trust is intended to be a device to avoid, reduce or postpone such liability or such person's ability to pay for such liability, or (2) by establishing indicia of ownership to protect what purports to be a bona fide security interest but what is intended to be a device to avoid, reduce or postpone such liability or such person's ability to pay for such liability, or (3) by any conveyance or transfer of ownership or control of property or assets of any kind that purports to be bona fide transaction but that is intended to avoid, reduce or postpone such liability or such person's ability to pay for such liability, or (4) by any other means that purport to be bona fide but that are intended to avoid, reduce, or postpone such liability or such person's ability to pay for such liability.(j) An agency of the commonwealth and a public utility company that owns a right of way that is a site at which the department has incurred costs for response actions shall not be liable to the commonwealth for those costs if the agency or public utility company, respectively, can establish by a preponderance of the evidence that:(1) it is not the owner or operator of any building, structure, installation, equipment, pipe or pipeline, including any pipe into a sewer or publicly-owned treatment works, well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock or aircraft from which the release or threat of release has occurred;(2) it is not a person or the successor to a person described in clauses (2), (3), (4) or (5) of paragraph (a);(3) no act of the agency or public utility company, or of the agency's or public utility company's employee or agent, caused or contributed to the release or threat of release or caused the release or threat of release to become worse than it otherwise would have been;(4) it notified the department immediately upon obtaining knowledge of a release or threat of release for which notification is required pursuant to, and in compliance with, section seven or regulations promulgated pursuant thereto;(5) it provided reasonable access, including moving utilities or disrupting service, to the site or vessel to employees, agents and contractors of the department to conduct response actions, and to other persons intending to conduct necessary response actions;(6) if it has undertaken a response action or portion of a response action at the site, the public utility company conducted such response action or portion of a response action in compliance with the requirements of this chapter and the Massachusetts Contingency Plan; and(7) it did not know or have reason to know of the presence of oil or hazardous material on the site when it came into possession of the right of way.For purposes of this subsection, the phrase ''public utility company'' means the Massachusetts Municipal Wholesale Electric Company established pursuant to chapter seven hundred and seventy-five of the acts of nineteen hundred and seventy-five, or any successor thereto, Massachusetts municipal light departments organized under chapter one hundred and sixty-four or any other special law, and Massachusetts gas and electric companies made subject to the jurisdiction of the department of telecommunications and energy by any provision of law except chapter one hundred and ten A of the General Laws and chapter six hundred and fifty-one of the acts of nineteen hundred and ten, as amended.(k) In any action under this chapter, the liability of a municipality when sponsoring and conducting a household hazardous waste collection for injury or loss of property or personal injury or death shall be limited to acts or omissions of the municipality or its agents or employees, during the course of the household hazardous waste collection which are shown to have been the result of negligence or reckless, wanton or intentional conduct; provided, however, that persons conducting a household hazardous waste collection for a municipality on a volunteer basis shall not incur any personal liability except for acts or omissions which are shown to have been the result of reckless, wanton or intentional conduct.(l) Any governmental body or charitable corporation or trust which holds a conservation restriction, agricultural preservation restriction, watershed preservation restriction or affordable housing restriction pursuant to section 32 of chapter 184 shall not be deemed to be an owner or operator if all of the following requirements are met:(1) no act or failure of duty of the governmental body or charitable corporation or trust, or of its employee or agent, caused or contributed to the release or threat of release or caused the release or threat of release to become worse than it otherwise would have been;(2) it did not control activities at the site except to the extent that it implemented and enforced its rights under the restriction;(3) it is not the owner or operator of any building, structure, equipment, storage container, motor vehicle, rolling stock or aircraft from or at which the release or threat of release occurred;(4) it notified the department, in compliance with this chapter and regulations promulgated thereto, upon obtaining knowledge of a release or threat of release for which notification is required pursuant to this chapter and regulations promulgated thereto; and(5) if it undertakes a response action at the site, it conducts such response action in compliance with the requirements of this chapter and regulations promulgated thereto.(m) Notwithstanding any other provision of this chapter, the commonwealth shall not be liable under this chapter for response actions taken or arranged by the department to implement or enforce the commonwealth's rights or responsibilities pursuant to this chapter.