Section 21H:4 - Discovery and assessment of solid waste pollution, liability for costsThe 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.
Mass. Gen. Laws ch. 21H, § 4