§ 5 — Release or threat of release of hazardous materials; liability; itemized bills; failure to reimburse; penalty

Section 5. (a) Except as otherwise provided in this section: (1) the owner or operator of a vessel or a site from which there is or has been a release or threat of release of hazardous materials; (2) any person who at the time of storage or disposal owned or operated any vessel or site from which said hazardous materials were stored or disposed and from which there has been a release or threat of release; (3) any person who by contract, agreement or otherwise directly or indirectly arranged for or engaged in the transport, disposal, storage or treatment of hazardous materials in a site or from a vessel from which there is or has been a release or threat of release of hazardous materials; or (4) any person who otherwise caused or is legally responsible for a release or threat of release of hazardous materials from a vessel or a site, shall be liable, without regard to fault, to the commonwealth for the reimbursement of all associated costs, as determined by the department, for an emergency mitigation response action.(b) The department shall provide an owner, operator or other party whom it reasonably believes to be responsible with an itemized bill of all costs incurred for which the department is seeking reimbursement. Such bill shall be so provided within 60 days from the department ascertaining the identity of the owner, operator or other responsible party reasonably believed to be liable and such bill shall: (1) identify the vessel or the site and date where the response occurred; (2) identify and describe the response action taken; and (3) describe the legal and factual basis for the department's claim to the noticed party for liability pursuant to this section.(c) Reimbursement for emergency mitigation response costs pursuant to this chapter shall be in addition to any other remedy otherwise available and shall not be construed in any manner to limit or abridge the right of a person, including the commonwealth, to recover all other reasonable costs, damages, penalties or fines pursuant to chapter 21E, or any other applicable law, statute, rule or regulation.(d) No person, except a person liable pursuant to this chapter, who without charge provides assistance at the request of a duly authorized representative of the department in mitigating a hazardous materials release, shall be held liable for civil damages as the result of an act or omission by him in mitigating a hazardous materials release, except for acts or omissions of gross negligence or willful misconduct.(e) There shall be no liability under subsection (a) for a person otherwise liable who can establish by a preponderance of the evidence that the release of hazardous material and the costs incurred as a result of an emergency mitigation response by the department resulting therefrom were caused by: (1) an act of God; (2) an act of war; or (3) an act or omission of a third party other than an employee or agent of the person, or of one whose act or omission occurs in connection with a contractual relationship directly or indirectly with the person, if such person establishes that he exercised due care with respect to the hazardous material and that he took precautions against foreseeable acts or omissions of a third party and the consequences that could foreseeably result from such act or omission.(f) A person who owns or rents and occupies a private residence that is an emergency response site at which the department has incurred emergency mitigation responses costs for the release or threat of release of oil or hazardous materials shall not be liable to the department for those costs if the owner or occupant establishes the following, on a form to be provided by the department: (1) the owner or occupant is not a person described in clause (3) or (4) of subsection (a); (2) the site was being used exclusively by the owner or occupant as a private residence at the time of the release or threat of release; (3) the owner or occupant of the private residence did not unlawfully possess, store or use oil or hazardous materials in violation of law; (4) the conduct of the owner or occupant was not grossly negligent in causing the release or threat of release of oil or hazardous materials; and (5) the owner or occupant immediately notified the local fire department of the release or threat of release of oil or hazardous materials as soon as the owner or occupant had knowledge of it.(g) All persons liable pursuant to this section for costs incurred as the result of an emergency mitigation response shall be liable jointly and severally.(h) No indemnification, hold harmless or similar agreement or conveyance shall be effective to transfer from the owner or operator of a site or from any other responsible person who may be liable for a release of hazardous material under this section to any other person the liability imposed under this section. Nothing in this subsection shall bar any agreement to insure, hold harmless or indemnify a party to such agreement for any liability under this section.(i) Notwithstanding any other provision of this chapter, no person who is otherwise liable for a hazardous material release for which the department has incurred costs from an emergency mitigation response 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: (1) by 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 such liability; (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; (3) by a conveyance or transfer of ownership or control of property or assets of any kind that purports to be a bona fide transaction but which 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 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 or a public utility company that owns a right of way that is a site at which the department has incurred costs for an emergency mitigation response shall not be liable to the commonwealth for such costs if the agency or public utility 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 has occurred; (2) it is not a person or successor to a person described in clause (2), (3), or (4) of paragraph (a); (3) no act of the agency or public utility company, or of the agency or public utility company's employee or agent, caused or contributed to the release of hazardous materials or caused the release of hazardous materials to become worse than it otherwise would have been; (4) it notified the local fire department and the department of environmental protection immediately upon knowledge of a release in accordance with the provisions of chapter 21E; (5) it provided reasonable access, including moving utilities or disrupting service to the site, to the department to conduct emergency mitigation response; or (6) it did not know or have reason to know of the presence of hazardous material on the site when it came into possession of the right of way.(k) In an action for recovery by the department of the costs of an emergency mitigation response under this chapter, liability to the commonwealth shall be only for the department's actual recoverable response costs, plus litigation costs and reasonable attorney's fees. However, if the court finds by a preponderance of the evidence that any person who is liable has failed to act reasonably or in good faith by refusing to reimburse the department for emergency mitigation response costs as provided by this chapter, it may in its own equitable discretion award the commonwealth up to three times the total actual recoverable response costs, litigation costs, and attorney's fees.(l) Notwithstanding the provisions of any general or special law to the contrary, all monies collected by the commonwealth under this chapter by reimbursement, settlement, judgment or otherwise shall be deposited into the Department of Fire Services Hazardous Materials Emergency Mitigation Response Recovery Trust Fund.(m) The commonwealth shall, subject to appropriation, reimburse a municipality for costs incurred for the emergency mitigation response of its members of a hazardous materials mitigation emergency response team and shall pay an annual stipend of $5,000 to each member of that team.