The Massachusetts Superfund law, G.L.c.21E, imposes responsibility and liability for releases of hazardous materials as well as oil and other petroleum products into the environment, and for suspected or confirmed disposal sites. DEP’s comprehensive regulations, known as the Massachusetts Contingency Plan (MCP) govern cities and towns like anyone else who is a present or former site owner or operator who generated, stored, transported, or disposed of oil or hazardous materials (OHM).
The MCP sets forth what responsible parties need to know about reporting of releases and sites, response actions and reports, cleanup standards, liabilities and fees, legal defenses, and presenting and pursuing claims that cities or towns may have for cost recovery and property damages for which others are liable. We handle all the above.
The state Superfund statute makes “owners and operators” liable to the Commonwealth for all site cleanup costs. All site “owners and operators” are subject to joint and several liability, meaning the Commonwealth can seek reimbursement for site cleanup costs from one, some, or all potential defendants. Persons responsible for releases or threats of release of OHM, for which Massachusetts incurs cleanup costs, are strictly liable for up to three times the actual costs. DEP can record a “Superlien” against contaminated property, taking priority over all other recorded instruments as to the property, and can record ordinary liens on other Massachusetts property of responsible parties.
In this modern field of environmental law, with its new “strict, joint and several, and retroactive liability,” we work for clients needing clear understanding, workable strategy, tactical advice, claims evaluation, corrective actions, settlement agreements, contract clauses, litigation representation, and natural resource damages. These business clients typically are present or past waste generators, transporters, storage facilities, recyclers, or disposal operations. They might be public or private, businesses or individuals, large or small.
We also work for clients who have rights to enforce these strong laws, get reimbursed for cleanups, seek money damages for property damage or personal injuries, or acquire a kind of immunity from liability. These clients usually are property owners who came to own the contaminated real estate, were the victims of midnight dumping, or are located downwind, downstream or downgradient.
Whether to prosecute or defend lawsuits from contamination of air, water, soil, or groundwater, we utilize our experience in handling hazardous waste matters, and knowledge of the science and good consultants, to obtain practical results for our clients.
DEP is authorized to take necessary response actions to contend with releases and threats of release, including assessment, containment and removal and go after the responsible parties. The MCP establishes reportable quantities and concentrations of certain substances, as well as release notification content and follow up. Following release and initial notification to DEP, parties must undertake preliminary response actions (often resulting in Phase I Initial Site Investigation Reports) and submit them to DEP.
DEP under 21E relies on the private sector – especially licensed site professionals (LSPs) – to coordinate response actions and to guide private party actions. In this sense, response actions are ‘privatized.” No disposal site shall be deemed to have all necessary response actions taken until a level of No Significant Risk (NSR) exists or has been achieved as reported by the LSP in a Response Action Opinion (RAO). In addition, all response actions must employ the “Best Response Action Management Approach.”
21 E contains rights of action for private parties, public agencies and others to sue for cleanup cost-recovery and contribution as well as for property damage. Court actions must be preceded by 45-day notice plus 60-day good faith negotiations.
Our business clients and other landowners find themselves as parties in Superfund litigation under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the state counterpart, G.L. c.21E. The state law has stricter standards, requires more response actions, and covers more pollutants than the federal. It also includes for private rights-of-action and access to attorney fees and expert expenses.
These cases may arise out of waste disposal practices, property ownership, or parent or subsidiary activities long ago. Often these are about cost recovery from conducting hazardous waste cleanups for which others are legally responsible under these laws. Sometimes they are about property damage and related real estate claims, compliance with the Massachusetts Contingency Plan (MCP), or declaratory judgment about corporate legal responsibilities for government cleanups or costs. Almost all of our cases involve complex issues of causation, contribution and allocation. For this reason we are known for working with outside technical consultants, clients’ in-house technical staff, and teams of persuasive expert witnesses.
Comprehensive federal and state laws and regulations govern the location and operation of hazardous waste facilities. Like federal RCRA program, MA requires permits for treatment, storage, and disposal facilities (TSDF) and mandates a manifest system to track waste from “cradle to grave.” DEP’s Division of Hazardous Waste implements the federal RCRA Subtitle C program regulating generation, transportation, treatment, storage, and disposal of hazardous wastes, as well as similar state statutes and regulations. G.L. c.21C; G.L. c.175G. In addition, local boards of health have authority under G.L.c. 111, s.150B) to approve and regulate sites for faculties which store, treat, or dispose of hazardous waste.
Beyond the federal RCRA program, Massachusetts expands the universe of “hazardous” chemicals to include waste oil and petroleum products, reduces thresholds of Small Quantity Generators (SQG) to reach Very Small QGs (VSQG), requires licenses for transporters (not just registrations), tightens release reporting requirements, and adds procedures and siting criteria for TSDFs.
We are adept at dealing with the laws on hazardous waste handling, management, and liabilities attaching to operation of present and past facilities, even those of owners long ago, in this legal field imposing responsibilities that can be “strict, joint and several, and retroactive” when there are or have been releases of oil or hazardous materials to the environment.