MITIGATION OF HAZARDOUS MATERIALS

M.G.L. pt. Part I, tit. Title II, ch. c. 21K

in effect

M.G.L. c. 21K, § 1 Definitions

c. 21K, § 1. Definitions Section 1. As used in this chapter the following words shall have the following meanings, unless the context clearly requires otherwise:- ''Act of God'', an unanticipated grave natural disaster or other natural phenomenon of an exceptional, inevitable and irresistible character, the effects of which could not have been prevented or avoided by the exercise of due care or foresight. A natural disaster is unanticipated when it is of a type unexpected given the area, the season and the past history of conditions. ''Advisory board'', the hazardous materials mitigation emergency response advisory board established in section 2. ''Department'', the department of fire services. ''Division'', the division of hazardous materials response within the department of fire services. ''Emergency mitigation response'', those actions taken by the hazardous materials mitigation emergency response team due to the release or threatened release of hazardous materials which the department reasonably believes poses an imminent threat to the life, health or safety of the public. ''Fiduciary'', a person (a) who is acting in any of the following capacities: as an executor or administrator as described in section 1 of chapter 197, including a voluntary executor or a voluntary administrator; a guardian; a conservator; a trustee under a will or inter vivos instrument creating a trust under which the trustee takes title to, or otherwise controls or manages, property for the purpose of protecting or conserving such property under the ordinary rules applied in the courts of the commonwealth; a court-appointed receiver; a trustee appointed in proceedings under federal bankruptcy laws; an assignee or a trustee acting under an assignment made for the benefit of creditors pursuant to sections 40 to 42, inclusive, of chapter 203; or a trustee, pursuant to an indenture agreement or similar financing agreement for debt securities, certificates of interest of participation in any such debt securities or any successor thereto; and, (b) who holds legal title to, controls or manages, directly or indirectly, any site or vessel as a fiduciary for purposes of administering an estate or trust of which such site or vessel is a part. ''Hazardous material'', material including, but not limited to, material, in whatever form which, because of its quantity, concentration, chemical, corrosive, flammable, reactive, toxic, infectious or radioactive characteristics, either separately or in combination with a substance, constitutes a present or potential threat to human health, safety or welfare or to the environment when improperly stored, treated, transported, disposed of, used or otherwise managed. Hazardous materials shall include, but not be limited to, oil and all substances which are included under 42 USC § 9601(14). ''Hazardous materials mitigation emergency response plan'', a contingency plan developed by the hazardous materials mitigation emergency advisory board to be followed by the hazardous materials mitigation emergency response team when responding to a release or threat of release of hazardous materials which pose an imminent threat to the life, health or safety of the public. ''Imminent threat'', a threat which poses a significant risk of harm to the life, health or safety of the public if it were present or left unabated for even a short period of time. ''Incident commander'', the local fire chief of the jurisdiction in which there has been a release or threat of release which requires a hazardous materials mitigation emergency response. ''Indicia of ownership primarily to protect a security interest'', only those interests in real or personal property typically acquired and held as security or collateral for payment or performance of an obligation. Such interests shall include, but not be limited to, a mortgage, deed of trust, lien, security interest, assignment, pledge or other right or encumbrance against real or personal property, including those security interests which have a contingent interest component, which are furnished by the owner thereof to assure repayment of a financial obligation, and contractual participation rights in such interests; provided, however, that the contract conferring such rights shall confer no other interest in the site or vessel. ''Marshal'', the state fire marshal. ''Oil'', insoluble or partially soluble oil of any kind or origin or in any form including, but not limited to, crude or fuel oil, lube oil or sludge, asphalt and soluble or partially soluble derivatives of mineral, animal or vegetable oil. ''Owner'' or ''operator'', ''Owner'' or ''operator'' as defined in section 2 of chapter 21E. ''Person'', an agency or political subdivision of the federal government or the commonwealth, a state, public or private corporation or authority, an interstate body, foreign nation, individual, trust, firm, joint stock company, partnership, association or other entity and any officer, employee or agent of such person and any group of persons. ''Public utility company'', a public utility as defined in clause (7) of paragraph (j) of section 5 of chapter 21E. ''Release'', a spilling, leaking, pumping, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into the environment, but excluding: (a) emissions from the exhaust of an engine; (b) release of source, byproduct or special nuclear material from a nuclear incident, as such terms are defined in 42 USC § 2014, if such release is subject to requirements with respect to financial protection established by the Nuclear Regulatory Commission under 42 USC § 2210; (c) the normal application of fertilizer; and (d) the application of pesticides consistent with their labeling. ''Secured lender'', (a) a person who holds indicia of ownership in a site or vessel primarily to protect that person's security interest in such site or vessel; (b) two persons when one holds indicia of ownership in a site or vessel primarily to protect the other person's security interest in such site or vessel if the person holding the indicia of ownership is: (1) wholly-owned by the person holding the security interest; or (2) an affiliate of the person holding the security interest and both are wholly-owned, directly or indirectly, by the same person; and (c) persons who hold contractual participation rights in a security interest and any of the following which hold indicia of ownership in a site or vessel primarily to protect that security interest: (1) a wholly-owned subsidiary of any such person; (2) an affiliate of any such person if both are wholly-owned, directly or indirectly, by the same person; and (3) any entity formed among such persons, subsidiaries or affiliates. ''Site'', a building, structure, installation, equipment, pipe or pipeline, including a pipe into a sewer or publicly-owned treatment works, well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock or aircraft, or any other place or area where oil or hazardous material has been deposited, stored, disposed of, or placed or otherwise come to be located and which requires an emergency mitigation response. Site shall not include a consumer product in consumer use or a vessel. ''Team leader'', an individual vested with the authority to oversee and command the operation of the hazardous materials mitigation emergency response team during an emergency mitigation response action. ''Threat of release'', a substantial likelihood of a release which requires action to prevent or mitigate an imminent threat to the life, health or safety of the public which may result from such release. ''Trade secret'', anything tangible which constitutes, represents, evidences or records a secret scientific, technical, merchandising, production or management information, design, process, procedure, formula, invention or improvement. ''Vessel'', every description of watercraft or other artificial contrivance used or capable of being used as a means of transportation on water.

M.G.L. c. 21K, § 2 Hazardous materials mitigation emergency response advisory board

c. 21K, § 2. Hazardous materials mitigation emergency response advisory board Section 2. There is hereby established within the department a hazardous materials mitigation emergency response advisory board. Said board shall review the development of standards, rules, procedures and regulations for hazardous materials mitigation emergency response and cost recovery. The board shall consist of the state fire marshal or his designee, the commissioner of environmental protection or his designee and four members to be appointed by the governor, two of whom shall be representatives of the Fire Chiefs Association of Massachusetts, neither of whom shall be a hazardous materials technician, and two of whom shall be representatives of the Professional Fire Fighters of Massachusetts, of whom one shall be a hazardous materials technician. The commissioner of environmental protection or his designee shall be a nonvoting member. No member shall receive compensation for service as a member of the board but shall receive from the commonwealth reimbursement for all expenses necessarily incurred in connection with his official duties. The governor shall appoint each member for a term of three years. Any member shall be eligible for reappointment.

M.G.L. c. 21K, § 3 Hazardous materials mitigation emergency response plan

c. 21K, § 3. Hazardous materials mitigation emergency response plan Section 3. The department, acting through the division, administered by the state fire marshal or his designee, shall prepare and from time to time update a hazardous materials mitigation emergency response plan. The department, in consultation with the board, shall promulgate such regulations, procedures and standards as it deems necessary for the implementation, administration and enforcement of this chapter. Such regulations, procedures and standards shall be developed by the department with input and review of the board and may include provisions waiving or limiting the applicability of this chapter as to any matter which the department determines to be adequately regulated by another program or government agency. The department shall integrate its implementation and enforcement of this chapter in conjunction with other programs established for the protection of the public health, safety, welfare and the environment, including the National Contingency Plan and the Massachusetts Contingency Plan.

M.G.L. c. 21K, § 4 Emergency mitigation response actions

c. 21K, § 4. Emergency mitigation response actions Section 4. The department may, at the request of the local fire department or on its own authority, dispatch member departments of the hazardous materials mitigation emergency response plan to a site in the commonwealth for the purpose of conducting an emergency mitigation response for a hazardous material release or threat of release. During a declared emergency mitigation response action, the team leader shall have complete operational authority for hazardous materials team operations at all times. Once the team leader has determined that the imminent threat of harm from the hazardous materials release has been satisfactorily mitigated, the team leader shall thereafter notify the incident commander. The incident commander shall have authority over the emergency mitigation response site during a declared emergency mitigation response. Any emergency mitigation response action taken by a member department under the hazardous materials mitigation emergency response plan shall be deemed to have been taken on behalf of the department and for the benefit of the commonwealth for the purpose of implementing the provisions of this chapter. Nothing in this chapter shall be construed in any manner to limit or abridge the right of the department of environmental protection to respond to a release or threat of release pursuant to chapter 21E.

M.G.L. c. 21K, § 5 Release or threat of release of hazardous materials; liability; itemized bills; failure to reimburse; penalty

c. 21K, § 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.

M.G.L. c. 21K, § 6 Jurisdiction of court; review of adequacy of emergency mitigation responses

c. 21K, § 6. Jurisdiction of court; review of adequacy of emergency mitigation responses Section 6. No court shall have jurisdiction to review any issue concerning the adequacy of any emergency mitigation response conducted by the department unless the proceeding in court is an action under section 5 to recover costs of an emergency mitigation response action.

M.G.L. c. 21K, § 7 Administrative review; civil actions; actions to recover costs; limitation of actions

c. 21K, § 7. Administrative review; civil actions; actions to recover costs; limitation of actions Section 7. (a) Any owner, operator or other responsible party reasonably believed to be liable who is aggrieved by any action of the department may petition the department for administrative review of its actions within ten days of receipt of notice as provided in section 5. The department's review and the procedures for reviewing responses made by the department shall not be adjudicatory proceedings and shall not be subject to the provisions of chapter 30A or any other law governing adjudicatory proceedings. Any owner, operator or other responsible party aggrieved by the decision of the department may bring a civil action in the nature of certiorari pursuant to section 4 of chapter 249; provided, however, that such action shall be commenced within 30 days of the date of determination on review made by the department. (b) Upon request of the department, the attorney general may bring an action to recover all costs incurred by the commonwealth for an emergency mitigation response as the result of a hazardous material release. (c) Actions brought by the attorney general pursuant to this chapter to recover emergency mitigation response costs and actions brought by the attorney general to enforce or foreclose liens recorded or filed pursuant to this chapter shall be commenced within five years from the date the commonwealth incurs all such costs or five years from the date the commonwealth discovers that the person against whom the action is being brought is a person liable pursuant to this chapter for a hazardous material release for which the commonwealth has incurred emergency mitigation response costs, whichever is later.

M.G.L. c. 21K, § 8 Debts; interest; liens; priority

c. 21K, § 8. Debts; interest; liens; priority Section 8. Any liability to the commonwealth under this chapter shall constitute a debt to the commonwealth. Any such debt, together with interest thereon at the rate of 12 per cent per annum from the date such debt becomes due, shall constitute a lien on all property owned by persons liable under this chapter when a statement of claim naming such persons is recorded, registered or filed. If a fiduciary or secured lender has title to or possession of the property and is not a person liable under this chapter when a statement of claim is recorded, registered or filed, such debt and interest thereon at the rate of 12 per cent per annum from the date the debt becomes due, shall constitute a lien on the property in question when a statement of claim describing the property is duly recorded, registered or filed. Any lien on real property shall be effective when duly recorded at the registry of deeds or registered in the registry district of the land court in the county or district wherein the land lies. Any lien for personal property, tangible or intangible, shall require a statement to be filed in accordance with the provisions of chapter 106. Any such statement shall be approved by the department. A lien recorded, registered or filed pursuant to this section shall have priority over any encumbrance theretofore recorded, registered or filed with respect to any site, other than real property principally used as residential housing, described in such statement of claim. All other personal property shall be subject to the priority rules of said chapter 106. Such lien shall continue in force with respect to any real or personal property until a release signed by the department is recorded, registered or filed in the place where the statement of claim as to such property affected by the lien was recorded, registered or filed. The department shall forthwith issue such a release in any case where the debt for which such lien attached, together with interests and costs thereon, has been paid or legally abated. If no action to enforce or foreclose the lien is brought by the deadline prescribed in subsection (b) of section 7, the lien shall be discharged after such deadline. This section shall not apply in any manner to a public utility.

M.G.L. c. 21K, § 9 Confidentiality; trade secrets

c. 21K, § 9. Confidentiality; trade secrets Section 9. Notwithstanding the provisions of any general or special law to the contrary, any information, record or particular part thereof obtained by the department, its personnel or contractors pursuant to the provisions of this chapter, upon request shall be confidential and shall not be considered to be a public record when it is determined by the state fire marshal that such information, record or report relates to secret processes, methods of manufacture or production or that such information, record or report, if made public, would divulge a trade secret.

Source: Massachusetts General Court (malegislature.gov)URL: https://malegislature.gov/Laws/GeneralLaws/PartI/TitleII/Chapter21KFetched: 10/20/2026