SOLID WASTE FACILITIES

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

in effect

M.G.L. c. 21H, § 1 Legislative determination and declaration of purpose

c. 21H, § 1. Legislative determination and declaration of purpose Section 1. (a) It is hereby determined that: (1) There is a critical need to eliminate, mitigate and prevent the nuisances and adverse public health effects associated with the collection, processing and disposal of solid waste from whatever source derived, including municipal, industrial, domestic, commercial and other sources or activities. (2) There is pending throughout the commonwealth a severe shortage in environmentally safe and financially sound capacity for the storage, disposal and processing of solid waste. (3) The provision of such capacity is an essential public purpose, will constitute the performance of an essential public function and is necessary to the preservation and improvement of the health, welfare and living conditions of the people of the commonwealth, the promotion of industry and employment and all aspects of commerce, the maintenance, protection, conservation and development of safe water supplies, and the protection of the environment overall. (4) The financial requirements for the provision of environmentally safe solid waste facilities are substantial and require the use of both public and private sources of financing and of facility development and operation experience, the ability to collect user fees to recover costs of providing such capacity, and the ability to finance capital expenditures without undue reliance on the general obligation credit of the commonwealth or of individual cities and towns. (b) It is hereby declared to be an essential public purpose to achieve the following: (1) provide a means whereby new and improved capacity for handling solid waste is established in a manner which takes full advantage of current municipal experience in the collection, disposal and storage of such waste; (2) encourage cities and towns to act together effectively to operate solid waste facilities; (3) establish a means whereby the commonwealth can act effectively to provide planning, technical, development, financial and other support for solid waste facilities; (4) establish a framework which encourages and permits private enterprise to participate appropriately in the development and operation of solid waste facilities; (5) encourage cities and towns to act together effectively to develop and operate household hazardous waste collection programs and related activities. (c) It is declared to be in the best interests of the citizens of the commonwealth to enact legislation authorizing the department of environmental protection to provide financial assistance to public bodies for the closure of landfills or other solid waste facilities and for the expansion of landfill capacity or other solid waste facilities.

M.G.L. c. 21H, § 2 Definitions

c. 21H, § 2. Definitions Section 2. As used in this chapter, the following words shall, unless the context clearly requires otherwise, have the following meanings: ''Assessment'', a project to investigate, monitor, survey, test and gather information to identify the existence, source, nature and extent of pollution or a threat of pollution and the extent of danger to the public health, safety or welfare, or to the environment. The term shall also include without limitation studies, services and investigations to plan, manage and direct assessment, containment, closure and clean up. ''Automobile manufacturer'', any person, firm, association, partnership, corporation, governmental entity, organization, combination or joint venture which is last in the production or assembly process of a new vehicle that uses mercury-added components, or in the case of an imported vehicle, the importer or domestic distributor of the vehicle; however, if a company from whom an importer or domestic distributor purchases the merchandise has a U.S. presence or assets, that company shall be considered to be the manufacturer and the distributor as defined in chapter 93B shall not be considered to be the manufacturer. ''Capture rate'', the annual removal, collection, and recovery of mercury-added vehicle switches as a percentage of that total number of mercury-added vehicle switches available for the removal from end-of-life motor vehicles as determined by the department. This term shall not include mercury-added vehicle switches that are inaccessible due to significant damage to the motor vehicle in the area where the mercury-added vehicle switch is located. ''Clean up'', a project for the removal of pollution which restores potability to a drinking water supply or which prevents the contamination of said supply, including without limitation the planning, design, and implementation of appropriate means of assessment and public solution of the contamination problem. ''Closure'', a project for the deactivation and completion of a solid waste facility, including without limitation planning, design and implementation of capping, containment, completion and any other activity necessary or incidental to minimize or prevent damage, or threats of damage, to the public health, safety or welfare, or to the environment. ''Construction'', a project for the provision of additional solid waste facility capacity, or for closure or containment at existing solid waste facilities, in accordance with all applicable technical and legal requirements, including without limitation planning, design and implementation of facility development, siting, alteration, expansion, improvement or equipping, and all activities necessary or incidental thereto, including acquisition of real or personal property or interests therein. ''Containment'', a project for the prevention of leachate generation and migration from a solid waste facility, including without limitation planning, design and implementation of surface sealing, grading, drainage control, lining, slurry trenching, grout curtain sheeting, and other activities necessary or incidental to leachate control. ''Department'', the department of environmental protection. ''Drinking water supply'', any water within the jurisdiction of the commonwealth, including without limitation rivers, streams, lakes, ponds, springs, impoundments and groundwater, which is used as a source of drinking water. ''Electric lamp'', the bulb or tube portion of a lighting device specifically designed to produce radiant energy, most often in the ultraviolet, visible and infrared regions of the electromagnetic spectrum. Examples of common electric lamps include, but are not limited to, incandescent, fluorescent, high intensity discharge and neon lamps. ''End-of-life motor vehicles'', any motor vehicle which is sold, given or otherwise conveyed to a vehicle recycler or scrap recycling facility for the purpose of dismantling, recycling or disposal. ''Facility'', any place or site where solid waste has been or will be deposited, dumped, stored, transferred or treated, including any landfill, refuse transfer station, refuse incinerator rated by the department at more than one ton of refuse per hour, refuse composting plant, or other work for treating or disposing of solid waste. ''Healthcare facility'', any hospital, nursing home, extended care facility, long-term care facility, clinical or medical laboratory, state health or mental institution, institution for the mentally ill or retarded, clinic, physician's office or health maintenance organization. ''IMERC'', the Interstate Mercury Education and Reduction Clearinghouse. ''Landfill'', any area, site or works for the disposal of solid waste into or on land. ''Manufacturer'', any person, firm, association, partnership, corporation, governmental entity, organization, combination or joint venture which produces a product containing mercury or an importer or domestic distributor of a product containing mercury produced in a foreign country. In the case of a mercury-added multi-component product where the only mercury is contained in a mercury-added component manufactured by a different manufacturer which is intended to be readily removable and replaceable by the consumer or user, the manufacturer is the manufacturer who produced the mercury-added component. If the product or component is produced in a foreign country, the manufacturer is the importer or domestic distributor; provided, however, that if a company from whom an importer purchases the merchandise has a United States presence or assets, that company shall be considered to be the manufacturer. This definition shall not apply to a ''distributor'' as defined in section 1 of chapter 93B. ''Mercury relay'', a mercury-added product that opens or closes electrical contacts to affect the operation of other devices in the same or another electrical circuit. ''Mercury switch'', a mercury-added product that opens or closes an electrical circuit or gas valve. ''Mercury-added component'', a component that contains mercury. ''Mercury-added formulated product'', a chemical product to which mercury has been added, intentionally or unintentionally, including, but not limited to, laboratory chemicals, cleaning products, cosmetics, pharmaceuticals and coating materials that are sold as consistent mixtures of chemicals. ''Mercury-added lamp'', an electric lamp to which the manufacturer intentionally introduces mercury for the operation of the lamp, including, but not limited to, fluorescent, compact fluorescent, black lights, high intensity discharge lamps, ultraviolet lamps and neon lamps. ''Mercury-added product'', a product to which the manufacturer intentionally introduces mercury, including, but not limited to, electric lamps, thermostats, automotive devices, electric switches, medical or scientific instruments, electric relays or other electrical devices, but not including products made with coal ash or other products that are incorporated into equipment used to manufacture semiconductor devices, elemental mercury in pre-capsulated form that is sold, distributed or provided to a dental practitioner for use in compliance with the department's regulations concerning amalgam wastewater and recycling for dental facilities, or mercury-added formulated products. ''Mercury-added vehicle switch'', a switch installed in a motor vehicle containing mercury, including, but not limited to, light switches and antilock braking systems. ''Mercury-added thermostat'', a product or device that uses a mercury switch to sense and control room temperature through communication with heating, ventilation or air conditioning equipment, including thermostats used to sense and control room temperature in residential, commercial, industrial and other buildings, but shall not include a thermostat used to sense and control temperature as part of a manufacturing process. ''Motor vehicle'', a vehicle propelled by an internal combustion engine or an electric motor, such as an automobile, van, truck, motorized construction equipment, motorized recreational vehicle, motorcycle or forklift. ''Person'', any natural or corporate person, whether public or private, including corporations, societies, associations and partnerships and bodies politic and corporate, public agencies, authorities, departments, offices and political subdivisions of the commonwealth. ''Pollution'', any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing of any material which, because of its quantity, concentration or other characteristics, is or may be injurious to human, plant or animal life or to property, or may unreasonably interfere with the comfortable enjoyment of life or property. ''Public body'', any city, town, district, commission, council, financing authority or other political subdivision of the commonwealth, and any agency, authority, board, bureau, commission, council, department or other entity or instrumentality of government. ''Qualified lamp recycler'', a person who engages in the manual or mechanical separation of spent household mercury-added lamps to recover components and mercury contained therein, and meets the requirements of the commonwealth for handling, transporting and disposal of mercury-added lamps. ''Scrap recycling facility'', a facility, location, device or unit where machinery and equipment are used for processing and manufacturing scrap metal into prepared grades and whose principal product is scrap iron, scrap steel or nonferrous metallic scrap for sale for remelting purposes. ''Solid waste'' or ''waste'', garbage, refuse, trash, rubbish, sludge, residue or by-products of processing or treatment of discarded material, and any other solid, semi-solid or liquid discarded material resulting from domestic, commercial, mining, industrial, agricultural, municipal, or other sources or activities, but shall not include solid or dissolved material in domestic sewage. ''Tipping fee'', the fee or other cost charged by the operator of a solid waste disposal facility for the disposal of solid waste in the facility. ''Vehicle in commerce'', any vehicle offered for sale by a dealer, or registered in the commonwealth or in the United States to be operated on public roads and highways. ''Vehicle recycler'', any individual or entity engaged in the business of acquiring, dismantling or destroying 6 or more vehicles in a calendar year for the primary purpose of reselling their parts.

M.G.L. c. 21H, § 3 Financial assistance to public bodies

c. 21H, § 3. Financial assistance to public bodies Section 3. (a) The department may provide financial assistance to public bodies for up to one hundred per cent of the costs of the clean up of existing and potential, as determined by the department, drinking water supplies that have been contaminated by leachate from landfills or for the costs of containment projects at landfills when leachate contamination exists or poses an imminent threat to an existing or a potential, as determined by the department, source of drinking water. Said costs may include study and assessment of the extent and nature of the actual or potential water supply contamination caused by the landfill and the costs of assessments to plan, manage, and direct containment and clean up of such contamination. Ninety per cent of the financial assistance provided to any one recipient pursuant to this subsection shall be in the form of a grant; ten per cent of such assistance shall be in the form of a no interest loan. In establishing priorities for making financial assistance available for the assessment and clean up of contaminated drinking water supplies or containment projects pursuant to this section, the department shall consider the extent to which such contamination poses a threat to a public resource or to the public health and safety. For the limited purposes of awarding financial assistance for the clean up of contaminated water supplies, such clean up shall be declared a public purpose. (b)(1) The department may provide financial assistance to public bodies for up to ninety per cent of the costs of closure of an existing landfill or other solid waste facility; provided, however, that such closure project is related to an applicant's subsequent disposal of solid waste in a landfill, resource recovery facility or recycling facility involved in the general disposal of solid waste on a regional basis. Eighty per cent of the financial assistance provided to any one recipient pursuant to this subsection shall be in the form of a no interest loan; twenty per cent of such assistance shall be in the form of a grant. (2) The department may provide loans with interest to public bodies for up to ninety per cent of the costs associated with containment or closure of any landfill or other solid waste facility. (3) The secretary of the executive office of environmental affairs, in consultation with the division of conservation services and the department, shall establish and implement a landfill closure and conversion grant program. Eligible applicants shall include any municipality which owns and operates a solid waste landfill which is scheduled to close, cease operation, and be capped pursuant to the fifteenth paragraph of section one hundred and fifty A of chapter one hundred and eleven; provided, however, that in order to be eligible to receive assistance pursuant to this section the municipality shall, at the time of applying, recycle at least thirty-five percent of their solid waste. Eligible expenses of any such project shall include ordinary and necessary costs associated with eligible projects, including, but not limited to, site design planning, surveys, construction, reconstruction, alteration, and improvement of the property relative to the creation of a recreational facility upon the site. Grants provided by said secretary pursuant to this section shall be made in accordance with procedures and a priority system established by said secretary, in consultation with said division of conservation services and the department, pursuant to rules and regulations adopted pursuant to chapter thirty A after public hearing. (c)(1) The department may provide financial assistance to public bodies for up to ninety per cent of the costs of construction of landfills or other solid waste facilities which serve as regional facilities and which accept both residential and commercial waste. Said costs may include the costs of any necessary containment done in conjunction with the construction. Sixty per cent of the financial assistance provided to any one recipient pursuant to this subsection shall be in the form of a no interest loan; forty per cent of such assistance shall be in the form of a grant. (2) The department may provide financial assistance to public bodies for up to ninety per cent of the costs of construction of landfills or other solid waste facilities which serve as regional facilities but which accept only residential waste. Said costs may include the costs of any necessary containment done in conjunction with the construction. Seventy per cent of the financial assistance provided to any one recipient pursuant to this subsection shall be in the form of a no interest loan; thirty per cent of such assistance shall be in the form of a grant. (d) The department shall reimburse public bodies that own and operate refuse burning facilities for the cost of emissions testing required by clause (c) of section five. (e) Loans and grants provided by the department pursuant to this section shall be made in accordance with procedures and a priority system established by the department pursuant to rules and regulations adopted pursuant to chapter thirty A after public hearing. In establishing priorities for making financial assistance available pursuant to this chapter, the department shall consider the following: (1) the extent to which the applicant's plan involves construction of new landfill or other waste disposal facility capacity which permits the closure of existing landfills or facilities determined by the department to constitute a significant, present or foreseeable threat to the environment; (2) the extent to which such construction project will provide landfill or other waste disposal facility capacity for the general disposal of solid waste on a regional basis or for regional use in connection with resource recovery or recycling facilities or programs as determined in each such case by the department to be in conformance with its statewide plan prepared under section twenty-one of chapter sixteen; (3) the extent to which the applicant's plan involves the closure or containment of an existing landfill or other waste disposal facility determined by the department to constitute a significant, present or foreseeable threat to the environment; (4) the extent to which such a closure project is related to the applicant's subsequent disposal of solid waste in a landfill, resource recovery or recycling facility involved in the general disposal of solid waste on a regional basis or for regional use as determined in each such case by the department to be in conformance with its statewide plan proposed under section twenty-one of chapter sixteen; (5) whether the landfill or other waste disposal facility construction, containment or closure project as proposed by the applicant is found to be environmentally safe by the department; (6) the extent to which the applicant or any person whom the applicant proposes to construct or operate the proposed project has complied with existing rules and regulations of the department in relation to the construction or operation of other waste disposal facility landfills, including without limitation rules and regulations related to air and water quality and to the siting of landfills under section one hundred and fifty A of chapter one hundred and eleven. Without limitation of the foregoing, nothing in this section shall be construed to prevent the department from conditioning the provision of financial assistance under this chapter upon the compliance of the applicant or of any other person to be responsible for operation of the facility with existing or amended laws, rules and regulations or policies or procedures of any public body charged with the implementation and enforcement of laws for the protection of the environment; (7) the extent to which private industry is willing and able to provide facilities or services to municipalities at a total cost less than or equal to the size of the requested financial assistance considering the entire life of the proposed project as defined in section eight of chapter forty-four; (8) the extent to which the applicant has adopted user fees for municipal solid waste disposal services designed to cover construction and operation costs, prevention of pollution, clean up, repairs, improvements, and closure of disposal facilities; (9) the extent to which a municipality has planned or implemented a department approved recycling program; (10) the extent to which a community has planned or implemented a department approved composting program; (11) the extent to which a municipality has planned or implemented a department approved household hazardous waste separation program; and (12) the extent to which any owner or operator of a landfill facility refuses to allow a small business interest engaged in collecting solid waste to unload or dispose of solid waste generated within the city, town or district in a landfill or other solid waste facility. (f) Eligible projects for which money may be distributed pursuant to this section shall be those approved by the department on or after January first, nineteen hundred and eighty-six. (g) Every public body shall, as a condition of receiving financial assistance under this chapter, except assistance under subsection (a) of section three, have implemented a plan providing for the periodic collection of household hazardous wastes and a plan for the recycling or composting of not less than twenty per cent of the solid waste generated within the area served by such public body. The department may modify the requirements of this subsection upon a determination that it would not be feasible for a public body to meet those requirements. (h) Public bodies which apply for financial assistance under this chapter shall submit an application and comply with such other requirements as the department shall prescribe. Such applications shall, to the extent considered necessary by the department: (1) describe how the applicant's project relates to the statewide plan adopted by the department pursuant to section twenty-one of chapter sixteen; (2) set forth plans and designs for the applicant's project and describe the specific steps which the applicant will take to prevent or minimize damage to the environment which may otherwise be associated with the construction or closure of a landfill or other solid waste facility; (3) describe the means by which the applicant proposes to finance costs of construction of facilities which will not be funded with financial assistance provided hereunder, and how the applicant proposes to finance operating expenses over the projected useful life of the facility. (i) No application for financial assistance under this chapter shall be approved by the department unless (1) such applicant has provided such information as is reasonably available to the applicant in connection with the preparation or revision, as the case may be, of the statewide plan by the department pursuant to section twenty-one of chapter sixteen, and (2) the applicant's proposed construction or closure project is in conformance with such statewide plan. (j) Without limitation of the foregoing, the department may, in furtherance of the purposes of this chapter enter into contracts or agreements with any person including without limitation federal, state or local bodies, and private persons, with respect to any and all matters and on terms and conditions which the department determines to be necessary or convenient to the exercise and performance of its powers and responsibilities under this chapter. (k) For the purposes of this section, the terms ''regional'' and ''regional basis'' shall be deemed to include facilities servicing a county, a municipality which has a population in excess of three hundred thousand or two or more municipalities. (l) Any loan authorized pursuant to this section shall be repaid under such terms as the secretary of administration shall establish; provided, however, that, unless such loans are specifically designated as interest free, interest shall be charged at a rate on such loans which is no less than the rate at which the commonwealth sold the bonds or notes which have been authorized to provide the monies for such loan; provided, further, that in the event that no notes or bonds are sold prior to the execution of such loans, said secretary shall make an estimate of the likely interest rate based on prevailing bond market conditions; and provided, further, that the term of years of any such loan shall be established such that it does not exceed the term of years for the general obligation bonds the proceeds of which are utilized to fund such loan program. In the event that any city, town, or district defaults on any such loan, said secretary is hereby authorized and directed to recover the amounts owed under the terms of such loan by reducing the amounts of any distribution by the commonwealth of financial assistance for any fiscal year or fiscal years as appearing on the notification to the assessors required by section twenty-five A of chapter fifty-eight which would otherwise be distributed to such city, town, or district; provided, however, that in the event that a district is found to be in default, said secretary is authorized to proportionately reduce such financial assistance to the member cities and towns in such district. All monies paid to the commonwealth in repayment of such loans shall be deposited into the Local Aid Fund.

M.G.L. c. 21H, § 4 Discovery and assessment of solid waste pollution; liability for costs; adjudicatory hearings; judicial review

c. 21H, § 4. Discovery and assessment of solid waste pollution; liability for costs; adjudicatory hearings; judicial review Section 4. The department is hereby authorized and directed to establish a program for (i) the discovery and assessment of pollution, or threats of pollution, caused by existing or closed solid waste facilities, (ii) the containment and clean up of such pollution, and (iii) the closure of existing solid waste facilities causing such pollution. (a) In implementing assessment under said program, the department either may take or arrange for such assessments or may award grants to public bodies, in accordance with rules and regulations adopted by the department pursuant to chapter thirty A after public hearing, for up to one hundred per cent of the costs for such assessments. Such assessments may include without limitation studies, surveys, monitoring, testing and other investigations to identify the existence, source, nature and extent of such pollution and to assess the extent to which such pollution presents an existing or potential danger to the public health, safety or welfare, or the environment, and studies, services and investigations to plan, manage and direct necessary containment, clean up or closure activities. (b) After the discovery and assessment under subsection (a) of pollution, or a threat of pollution, caused by an existing or closed solid waste facility, the department, in accordance with enforcement authority set forth in applicable statutes and regulations, shall notify the owner of the facility of (i) any requirements to correct such pollution, or threat of pollution, and to bring the facility into conformance with applicable statutes and regulations, and of steps which must be taken to do so; (ii) the need for any further assessment, or if adequate assessment has been made, the need for containment, closure or clean up projects to eliminate, minimize or prevent such pollution or threat of pollution; (iii) any funding available for such assessment, containment, closure or clean up projects under section three; (iv) the department's authority to take or arrange for any such projects under subsection (c); and (v) the liability provisions of subsections (e) to (h), inclusive, for the costs incurred by the department in taking or arranging for such projects. (c) Subject to the provisions of subsections (b) and (d), the department is authorized (i) to take or arrange for further assessment of such pollution or threats of pollution, (ii) to take or arrange for containment actions in response to such pollution, or threats of pollution, which will prevent or minimize such pollution so that it does not migrate or otherwise cause or threaten substantial present or future danger to the public health, safety or welfare, or the environment, and (iii) to take or arrange for such closure or clean up activities as may be necessary to prevent, minimize or mitigate damage to the public health, safety or welfare, or the environment, which may result from such pollution, or threats of pollution. (d) Prior to taking or arranging for any further assessment or any containment, closure or clean up activities under subsection (c), an assessment under subsection (a) shall have been completed, the department shall have informed the owner of the facility as set forth in subsection (b) and the department shall have notified said owner of its intent to take or arrange for such projects. (e) Except as otherwise provided in this section, the owner of an existing or closed solid waste facility which causes pollution or threat of pollution, and any person who is otherwise legally responsible for such pollution or threat of pollution, shall be liable to the commonwealth for all costs of any further assessment and any containment, closure and clean up incurred by the department relative to such pollution pursuant to subsection (c). Except as provided in subsection (f), such liability shall be joint and several. (f) Any person otherwise liable for any costs as set forth in subsection (e) who establishes by a preponderance of the evidence that only a portion of such costs is attributable to pollution or threat of pollution for which he is included in said subsection (e) shall be required to pay only such portion. (g) All persons liable under this section who are liable for pollution or a threat of pollution, caused by an existing or closed solid waste facility, for which the department has incurred costs for assessment, containment, closure or clean up under subsection (c), shall be liable, jointly and severally, to the commonwealth in an amount up to three times their liability as set forth in this section; provided, however, that if any person establishes by a preponderance of the evidence that only a portion of such costs is attributable to pollution or threat of pollution for which he is included in said subsection (c), in which case they shall be required to pay up to three times such portion. (h) Where the person liable for such pollution or threat of pollution is a city or town, there shall be no liability for the costs of assessment taken or arranged by the department, and the provision of subsection (g) relating to treble liability for costs incurred by the department for containment, closure or clean up shall not apply to such public body, and any liability to the commonwealth under this section, in the case of a city or town shall not be included in the debt of such city or town for the purpose of ascertaining its legal borrowing capacity, if after receiving notice under subsection (b), and prior to any action by the department under subsection (c), such city or town has taken action to obtain financial resources to support any necessary containment, closure or clean up projects, including without limitation issuing revenue bonds under section twenty-eight C of chapter forty-four or applying in good faith for financial assistance pursuant to section three. (i) No indemnification, hold harmless or similar agreement or conveyance shall be effective to transfer the liability imposed under this section from the owner of any existing or closed solid waste facility or from any other person who may be liable for pollution or threat of pollution under this section to any other person. 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. (j) The department, as necessary to carry out the provisions of subsections (a) and (c) may enter into contracts for consultant services, including but not limited to engineering, technical, legal, administrative, accounting, community information, financial, management and investigatory function, and may acquire personal property and interests in real estate by leases, purchases or eminent domain under the provisions of chapter seventy-nine and may pay any relocation benefits required by law. (k) Nothing in this section shall preclude the department from acting to address pollution or threats of pollution caused by existing or closed solid waste facilities under the authority of section four of chapter twenty-one E. (l) Any person aggrieved by a determination by the department under subsections (b) to (j), inclusive, may request an adjudicatory hearing before the department under the provisions of chapter thirty A. Any such determination shall contain a notice of the right to request a hearing and may specify a reasonable time limit, not to exceed twenty-one days, within which said person shall request said hearing. If no such request is timely made, the determination shall be deemed assented to. If a timely request is received, the department within a reasonable time shall act upon such request in accordance with the provisions of said chapter thirty A. A person aggrieved by a final decision in an adjudicatory hearing held under the provisions of this section may obtain judicial review thereof pursuant to the provisions of chapter thirty A.

M.G.L. c. 21H, § 6 Acid gas scrubbers

c. 21H, § 6. Acid gas scrubbers Section 6. All resource recovery facilities and other solid waste incinerators shall operate with acid gas scrubbers, or such other technology providing equal or greater protection to the public health and environment, as determined by the department in manner and time.

M.G.L. c. 21H, § 6A Implementation of IMERC standards by department

c. 21H, § 6A. Implementation of IMERC standards by department Section 6A. The department shall participate in the implementation of IMERC standards established at the Northeast Waste Management Officials Association to assist in carrying out the requirements of sections 6A to 6M, inclusive, and to help coordinate reviews of the manufacturers' applications for phase out exemptions and collection system plans.

M.G.L. c. 21H, § 6B Notification of mercury-added products offered for final sale, use or distribution in commonwealth

c. 21H, § 6B. Notification of mercury-added products offered for final sale, use or distribution in commonwealth Section 6B. (a) No mercury-added product shall be offered for final sale or use or distributed in the commonwealth without notification in writing by the manufacturer of the product to the department through IMERC within 30 days of the product's release in accordance with this section. (b) Notification that complies with the notification forms of IMERC shall satisfy the requirements of this section. The department may require that it be notified directly in addition to reporting through IMERC. The manufacturer or trade group shall update and revise the notification information whenever there are significant changes in the product category. (c) Any mercury-added product for which federal law governs notice in a manner that preempts state authority shall be exempt from this section. (d) Public disclosure of confidential business information submitted to the department pursuant to this section shall be governed by the requirements of section 10 of chapter 66. The department and IMERC may compile or publish analyses or summaries of such information provided that the analyses or summaries do not identify any manufacturer's confidential information. (e) The department shall protect trade secrets.

M.G.L. c. 21H, § 6C Restrictions on use and sale of mercury-added vehicle switches; plan for removal and recycling of mercury-added components in end-of-life vehicles

c. 21H, § 6C. Restrictions on use and sale of mercury-added vehicle switches; plan for removal and recycling of mercury-added components in end-of-life vehicles Section 6C. (a) No person shall sell or offer to sell or distribute a motor vehicle manufactured on or after January 1, 2007, containing 1 or more mercury-added vehicle switches. (b) No person shall sell or offer to sell or distribute a mercury-added vehicle switch for new installation in a motor vehicle. (c) If a mercury-added vehicle switch in a motor vehicle in commerce requires replacement, it shall be replaced with a non-mercury alternative. If a non-mercury alternative is not commercially available, replacement with a non-mercury alternative shall not be required. If the mercury-added vehicle switch requiring replacement is a component of an anti-lock braking system or an airbag, replacement with a non-mercury alternative shall not be required. (d) No person shall crush, cause to be crushed or otherwise arrange for an end-of-life motor vehicle to be crushed without first having removed any mercury-added components, including, but not limited to, mercury-added vehicle switches. A scrap recycling facility may agree to accept an end-of-life motor vehicle that has not been flattened, crushed or baled containing mercury-added components. If accepted, the scrap recycling facility is responsible for proper removal, recycling, transporting, storage and general containment of all mercury-added components in accordance with chapter 21C and the department's regulations concerning hazardous waste. (e) Any person or facility removing a mercury-added component from a vehicle in commerce or from an end-of-life vehicle shall manage the mercury-added component in accordance with chapter 21C and the department's regulations concerning hazardous waste. (f) No later than August 1, 2007, every automobile manufacturer shall, individually or as a group, develop and file with the department and implement a plan that describes the proper removal, recycling, transportation, storage and general containment of mercury-added switches from end-of-life vehicles in accordance with chapter 21C and the department's regulations concerning hazardous waste. (g) The plan shall include, at a minimum:- (1) a method of collecting mercury-added vehicle switches after removal from motor vehicles; (2) provisions for identifying or establishing and using facilities where mercury-added vehicle switches may be received and accepted from vehicle recyclers, scrap recyclers and all other persons removing mercury-added vehicle switches from vehicles; (3) provisions for transporting mercury-added vehicle switches collected pursuant to clause (1) of subsection (g) to facilities pursuant to clause (2) of said subsection (g); (4) a program to provide information, training and technical assistance to vehicle recyclers, scrap recyclers and all other persons removing mercury-added vehicle switches from motor vehicles; (5) a program which is designed to achieve a mercury-added vehicle switch capture rate of at least 90 per cent, consistent with the principle that mercury-added vehicle switches shall be recovered unless the mercury-added vehicle switch is inaccessible due to significant damage to the motor vehicle in the area surrounding where the mercury-added vehicle switch is located; (6) a financing system for the total cost of removal, collection, record keeping and recovery of mercury-added vehicle switches that shall be borne by the automobile manufacturers and that shall include, but not be limited to, $3 for every mercury-added vehicle switch removed by a vehicle recycler or scrap recycling facility as partial compensation for labor and other costs incurred by a vehicle recycler or scrap recycling facility in the removal of the mercury-added vehicle switch. (h) In developing a removal, collection, record keeping and recovery system, automobile manufacturers shall, to the extent practicable, use the existing end-of-life vehicle recycling infrastructure. If an automobile manufacturer does not use such infrastructure, the automobile manufacturer shall include in its plan reasons for establishing a separate removal, collection and recovery system. (i) After the plan is filed with the department, each automobile manufacturer shall certify to the department, in writing on an annual basis, that it is implementing the plan in accordance with this section. (j) The department shall evaluate the compliance of all persons subject to this section by conducting audits, inspections or implementing other compliance measures it considers appropriate. (k) Automobile manufacturers shall report annually to the department and joint committee on environment, natural resources and agriculture. The report shall, at a minimum, include the following: (1) The number of mercury-added vehicle switches removed during the previous year; and (2) Where and how the mercury-added vehicle switches are stored, recycled or otherwise disposed of. (l) Not later than January 1, 2007, automobile manufacturers and vehicle recyclers shall provide the department with the number of end-of-life vehicles with mercury-added vehicle switches in the commonwealth in calendar year 2005 and the projected numbers for end-of-life vehicles in the commonwealth for each calendar year thereafter until 2030. (m) Automobile manufacturers who have never installed mercury-added vehicle switches in their motor vehicles shall be exempt from this section. (n) (1) An automobile manufacturer may create an alternative plan, organized, managed and financed by the automobile manufacturer, that will be exempt from clauses (5) and (6) of subsection (g) if:- (i) the automobile manufacturer submits a plan, in writing to the department that describes the proper removal, recycling, transportation, storage and general containment of mercury-added switches from end-of-life vehicles in accordance with chapter 21C and the department's regulations concerning hazardous waste, that meets the requirements of clauses(1) to (4), inclusive, of subsection (g); (ii) the alternate plan is implemented no later than January 1, 2007; (iii) the automobile manufacturer demonstrates that the plan's capture rate is equal to or greater than 50 per cent by December 31, 2007, as determined by the department; and (iv) the automobile manufacturer demonstrates that the plan's capture rate is equal to or greater than 90 per cent by December 31, 2008, as determined by the department. (2) Nothing in this section shall prohibit an automobile manufacturer from substituting a new plan in accordance with, and subject to the requirements of, subsection (o). (3) If no alternative plan is in effect by January 1, 2007, pursuant to this section, the automobile manufacturer shall comply with subsection (g). (4) If the department determines that an automobile manufacturer is not in compliance with this subsection, the automobile manufacturer shall comply with subsection (g) within 30 days of the determination by the department. (o) If an automobile manufacturer's plan under subsection (g) has been in effect for at least 1 year, the automobile manufacturer may submit an alternate plan to the department for approval. The alternate plan shall meet the following criteria: (1) The alternate plan has been in effect for at least 1 year in another state and can be implemented statewide; (2) The alternate plan has achieved at least a 90 per cent capture rate in that state; and (3) The alternate plan, to the extent practicable, uses the existing end-of-life vehicle recycling infrastructure in the commonwealth. (p) When considering whether to approve an alternate plan pursuant to subsections (n) and (o), the department shall take into consideration the environmental impact in the commonwealth and the economic impact on Massachusetts businesses. (q) Approval of the alternate plan pursuant to subsections (n) and (o) by the department shall release the automobile manufacturer from its obligations under its original plan, starting on the effective date of the alternate plan. (r) An alternate plan may include an agreement between automobile manufacturers and automobile dealers to remove switches before the vehicle reaches its end-of-life. (s) Vehicle recyclers shall, before delivering or selling automobile bodies to scrap recycling facilities, certify in writing, in a form approved by the department, that all mercury-added vehicle switches have been removed.

M.G.L. c. 21H, § 6D Sale of mercury-added thermostats and other mercury-added products

c. 21H, § 6D. Sale of mercury-added thermostats and other mercury-added products Section 6D. (a) No person shall sell or offer to sell or distribute a mercury-added thermostat in the commonwealth. (b) No person shall sell or offer to sell or distribute in the commonwealth the following mercury-added products: (1) barometers; (2) esophageal dilators, bourgie tubes or gastrointestinal tubes; (3) flow meters; (4) hydrometers; (5) hygrometers or psychrometers; (6) manometers; (7) pyrometers; (8) sphygmomanometers; or (9) basal thermometers. (c) Subsections (a) and (b) shall not apply: (i) to the sale of mercury-added products if the use of the product is a federal requirement; (ii) to the sale of thermometers if they are determined to be medically necessary by a licensed physician or are ordered by prescription, or (iii) to the sale of mercury-added antique barometers, including antique barometers with attached mercury thermometers, if the barometer was manufactured prior to 1955.

M.G.L. c. 21H, § 6E Sale or distribution of mercury switch or mercury relay; exceptions

c. 21H, § 6E. Sale or distribution of mercury switch or mercury relay; exceptions Section 6E. (a) No person shall sell or offer to sell or distribute a mercury switch or mercury relay, individually or as a product component. This prohibition shall not apply if the mercury switch or mercury relay is a component in a larger product in use before May 1, 2009, there is no mercury-free alternative available for the component and 1 of the following applies: (1) the larger product is used in manufacturing; or (2) the switch or relay is integrated and not physically separate from other components of the larger product. (b) This section shall not apply to the sale of a mercury switch or a mercury relay if the use of the switch or relay is a federal requirement. (c) This section shall not apply to the sale of a mercury switch or a mercury relay which is integrated as a component of a larger product that has been refurbished for resale and which was originally manufactured before the effective date of this act.

M.G.L. c. 21H, § 6F Exemptions from prohibitions in Secs. 6D and 6E; applications; fees

c. 21H, § 6F. Exemptions from prohibitions in Secs. 6D and 6E; applications; fees Section 6F. (a) The department, at its discretion and in consultation with the executive office of economic development and the department of public health, may allow for exemptions to the prohibitions in sections 6D and 6E. (b) Applications for exemptions shall demonstrate that: (1) the use of the product is beneficial to the environment or protective of the public health or public safety; (2) there is no technically feasible alternative to the use of mercury in the product; (3) there is no comparable non-mercury-added product available at reasonable cost; and (4) an effective system exists for the collection, transportation and processing of the mercury-added product. Such a system may include direct return of a waste product to the manufacturer, an industry or trade group-supported collection and recycling system or other similar private and public section efforts. (c) The department shall establish application fees and a timeline for reviewing applications for exemptions that does not exceed 90 days. (d) Before issuing an exemption, the department shall consult with neighboring states and regional organizations to promote consistency. The department shall avoid, to the extent feasible, inconsistencies in the implementation of this section. (e) An exemption shall be valid for not more than 3 years and may be extended upon request of the applicant, at the discretion of the department.

M.G.L. c. 21H, § 6G Purchase of elemental mercury, mercury compounds and mercury-added equipment and materials by schools

c. 21H, § 6G. Purchase of elemental mercury, mercury compounds and mercury-added equipment and materials by schools Section 6G. No school in the commonwealth shall purchase for use in a primary or secondary classroom elemental mercury, mercury compounds or mercury-added instructional equipment and materials, except measuring devices and thermometers for which no adequate nonmercury substitute exists that are used in school laboratories. This section shall not apply to the sale of mercury-added lamps or those products whose only mercury-added component is a mercury-added lamp or lamps.

M.G.L. c. 21H, § 6H Disclosure requirements for mercury-added formulated product manufacturers

c. 21H, § 6H. Disclosure requirements for mercury-added formulated product manufacturers Section 6H. Every manufacturer of a mercury-added formulated product shall, upon a written request from a health care facility, disclose in writing the mercury content of any product used in its facility that contains more than 1 part per billion of mercury. The manufacturer shall also disclose to the health care facility information needed to determine the mercury content of a component manufactured by another manufacturer which is part of the final product. This disclosure shall further provide the method used in developing the analysis performed for total mercury content. These products shall include, but are not limited to: acids, alkalis, bleach, materials used for cleaning or maintenance or disinfection, stains, reagents, preservatives, fixatives, buffers and dyes.

M.G.L. c. 21H, § 6I Disposal of mercury-added products; education program; discharge of mercury into water; scrap recycling of multi-component products containing mercury

c. 21H, § 6I. Disposal of mercury-added products; education program; discharge of mercury into water; scrap recycling of multi-component products containing mercury Section 6I. (a) No person, household, business, school, healthcare facility or state or municipal government shall knowingly dispose of a mercury-added product in any manner other than by recycling, disposing as hazardous waste or using a method approved by the department. (b) The department shall implement an education program. This program shall include, but not be limited to, working with municipalities and waste haulers to educate the citizens of the commonwealth about mercury-added products and their proper disposal, including creating signs to post at transfer stations, landfills, recycling centers and municipal buildings. (c) Mercury from mercury-added products shall not knowingly be discharged into water, wastewater treatment or wastewater disposal systems unless it is done in compliance with applicable local, state and federal requirements. (d) No person shall knowingly send a multi-component product that contains mercury to a scrap recycling facility for recycling without first removing the mercury-added product or products. Notwithstanding the forgoing, a scrap recycling facility may agree to accept a multi-component product that has not been intentionally flattened, crushed or baled knowing it contains mercury-added product or products. If accepted, the scrap recycling facility shall be responsible for removing such product or products and recycling them or disposing of them as hazardous waste. (e) Mercury-added formulated products that are cosmetic or pharmaceutical products subject to the regulatory requirements of the Federal Food and Drug Administration relating to mercury are exempt from this section.

M.G.L. c. 21H, § 6J Sale of mercury-added products; collection plan; mercury-added lamps

c. 21H, § 6J. Sale of mercury-added products; collection plan; mercury-added lamps Section 6J. (a) No person shall sell or offer to sell or distribute a mercury-added product in the commonwealth unless the manufacturer has created and filed with the department a convenient and accessible collection plan for mercury-added products at the end-of-life, including a system for the direct return of the mercury-added product to the manufacturer or a collection and recycling plan, in accordance with chapter 21C and the department's regulations concerning hazardous waste, using new or existing collection systems. The plan shall be approved or certified, as determined by the department, and shall be implemented by the manufacturers. (b) Where a mercury-added component is part of another product, the collection system must provide for collection of the mercury-added component or collection of both the mercury-added component and the product containing it. (c) Every manufacturer of mercury-added products sold or distributed in the commonwealth shall be financially responsible for such collection and recycling systems. (d)(1) A manufacturer of mercury-added lamps shall satisfy the requirements of this section if such manufacturer who sells mercury-added lamps in the commonwealth individually pays, until June 30, 2024, an annual registration fee, not to exceed $10,000 per year, into an expendable trust, under section 6 of chapter 6A and any applicable regulations, for the limited purpose of department and municipal administration, access, communication, enforcement and education costs for proper mercury-added lamp recycling or disposal. For the purposes of this subsection, the aggregate annual registration fees paid by such manufacturers shall be equal to $300,000 per year; provided, however, that if the aggregate annual registration fees do not equal $300,000, the department, pursuant to section 18 of chapter 21A, shall adjust the annual registration fee in excess of $10,000 per year, for the sole purpose of reaching annual aggregate registration fees of $300,000. (2) A person who sells fluorescent lamps at retail for residential or commercial customers may post the following notice in 24–point type or larger and in a manner clearly visible to a consumer examining fluorescent lamps offered for sale: ''Fluorescent bulbs save energy and reduce environmental pollution. Note: Fluorescent bulbs contain a small amount of mercury and must be properly recycled at the end of their use. Contact your municipality or www.lamprecycle.org for bulb recycling options.'' A retailer may include additional language in the notice in order to promote the sale or in-store recycling of fluorescent lamps, provided that the notice language set forth in this subsection is present. A manufacturer, individually or collectively, shall provide a printed copy of that notice, free of charge, at the request of any retailer of mercury-added lamps for its retail establishment in the commonwealth. (e)(1) An inspector, as defined by section 1 of chapter 143, may enforce subsection (a) of section 6I. A municipality may, under its authority in section 94 of said chapter 143, institute additional fines and penalties for violations of said subsection (a) of said section 6I. Any municipal employee enforcing this section shall refer cases to and cooperate with district attorneys, the attorney general and other state law enforcement officials to enforce said subsection (a) of said section 6I. (2)(a) A qualified mercury-added lamp recycler engaged in the collection and recycling of mercury-added lamps shall issue a certificate of mercury lamp recycling to all customers upon collection. Customers shall keep these certificates on file for not less than 36 months and provide access to the department upon request. (b) A qualified mercury-added lamp recycler shall, provide annually, information regarding the recycling of lamps by any person in the commonwealth as requested by the department. The department may establish by rule the information that qualified mercury-added lamp recyclers shall provide. (f) Nothing in this section shall prohibit retailers, distributors, wholesalers or any other group from creating and implementing a collection plan for mercury-added lamps or any other mercury-added product. (g) This section shall not apply to mercury-added button cell batteries, motor vehicles or motor vehicle components. (h) Mercury-added formulated products intended to be totally consumed in use, such as reagents, cosmetics, pharmaceuticals and other laboratory chemicals, shall be exempt from this section. (i) This section shall not apply to refurbished medical equipment or products where the only mercury contained in the product comes from a removable mercury-added button cell battery or a mercury-added lamp. (j) This section shall not apply to mercury-added antique barometers, antique thermometers, and antique clocks if the antique barometer, thermometer or clock was manufactured prior to 1955.

M.G.L. c. 21H, § 6K Labeling requirements for mercury-added products

c. 21H, § 6K. Labeling requirements for mercury-added products Section 6K. (a) No person shall sell a mercury-added product unless the product is labeled by the manufacturer pursuant to this section. The label, constructed of materials that are sufficiently durable to remain legible for the useful life of the product, shall clearly inform the purchaser that mercury is present in the product and that the product shall be reused, recycled or properly disposed of as hazardous waste. Manufacturers of products that contain an irremovable mercury-containing lamp used for backlighting shall meet the product labeling requirements of this section by placing the label on the product or its care and use manual. (b) Mercury product labeling plans approved by another state that is a member of IMERC shall be considered to be in compliance with this section if they are effectively implemented in the commonwealth. The manufacturer shall provide a copy of the labeling plan to the department upon request and shall notify the department if the approval is modified. (c) A person who sells mercury-added lamps to the owner or manager of an industrial, commercial or office building or to any person who replaces or removes from service outdoor lamps that contain mercury shall clearly inform the purchaser, in writing on the invoice for the lamps or in a separate document, that the lamps contain mercury, that mercury is a hazardous substance that is regulated by federal and state law and that the lamps may not be placed in solid waste destined for disposal. Retail establishments that incidentally sell mercury-added lamps to the specified purchasers are exempt from this subsection. (d) This section shall not apply to refurbished medical equipment. (e) This section shall not apply to the labeling of those products whose only mercury component is a removable mercury-added lamp or button cell battery. (f) This section shall not apply to mercury-added antique barometers, antique thermometers, and antique clocks if the antique barometer, thermometer or clock was manufactured prior to 1955. A person who sells a mercury-added antique barometer, thermometer or clock manufactured prior to 1955 shall clearly inform the purchaser, in writing, at the time of sale: (1) that the antique contains mercury; (2) that mercury is a hazardous substance; (3) that mercury is regulated by federal and state law; (4) the proper and commercially available methods for disposal and recycling of the antique; and (5) the proper procedures for cleaning up mercury spills if the antique is broken while in the purchaser's possession.

M.G.L. c. 21H, § 6L Collection of mercury-added products by solid waste collectors

c. 21H, § 6L. Collection of mercury-added products by solid waste collectors Section 6L. A solid waste collector shall refuse to collect the contents of a solid waste container that the collector knows or reasonable should know contains 1 or more mercury-added products unless such solid waste is collected for the purpose of being reused, recycled or properly disposed of as hazardous waste or otherwise managed to ensure that the mercury does not become mixed with other solid waste or wastewater.

M.G.L. c. 21H, § 6M Preference for purchase of products not containing mercury by state procurement officer, university system and agencies

c. 21H, § 6M. Preference for purchase of products not containing mercury by state procurement officer, university system and agencies Section 6M. The state procurement officer, the state university system and state agencies shall give preference to the purchase of equipment, supplies and other products that do not contain mercury unless there is no economically feasible non-mercury alternative that performs a similar function or unless the non-mercury product is sufficiently less energy efficient so as to result in a greater overall environmental impact. In circumstances where a non-mercury-added product is not available, preference shall be given to the purchase of products which have the least overall environmental impact in their development, manufacturing and use. This section shall not apply to the purchase of vaccines by the department of public health, its affiliates and facilities or to the purchase of refurbished medical equipment in which a mercury switch or relay is a fully integrated component.

M.G.L. c. 21H, § 6N Rules and regulations

c. 21H, § 6N. Rules and regulations Section 6N. The department shall adopt rules and regulations as may be necessary for the implementation of this chapter.

M.G.L. c. 21H, § 7 Composting programs

c. 21H, § 7. Composting programs Section 7. The department, in consultation with the department of food and agriculture, shall establish a program to provide for recycling through composting of leaves and other organic matter. (a) The department shall be authorized to implement regional yard waste and leaf composting projects and shall utilize state-owned land where feasible. The department shall also be authorized to accept applications from municipalities for grants and to award grants to assist in the development of local and regional composting projects. The department shall promulgate rules and regulations for the operation of a state and local yard waste and leaf composting program. (b) The department of food and agriculture shall establish an agricultural composting program. Said department of food and agriculture is hereby authorized to establish state and local composting projects, to establish a demonstration agricultural composting program, and to accept applications for grants from municipalities for the purposes of creating agricultural composting projects. Said department of food and agriculture shall promulgate rules and regulations for the operation of state, local, and demonstration agricultural composting programs.

M.G.L. c. 21H, § 8 Penalties

c. 21H, § 8. Penalties Section 8. Any person who violates any provision of this chapter, or any rule or regulation, order, permit, or approval issued or adopted under the provisions of this chapter: (a) shall be punished by a fine of not more than twenty-five thousand dollars, or by imprisonment for not more than two years or both, for each such violation; or (b) shall be subject to a civil penalty not to exceed twenty-five thousand dollars for each such violation. Each day each such violation occurs or continues shall be deemed a separate offense.

Source: Massachusetts General Court (malegislature.gov)URL: https://malegislature.gov/Laws/GeneralLaws/PartI/TitleII/Chapter21HFetched: 10/20/2026