Toxic chemicals, including pesticides are highly regulated at the federal level and those who manufacture, distribute and sell them in commerce enjoy significant protection from conflicting or more demanding state laws, at least for chemicals that are legal in commercial and consumer use. The federal preemption principles leave open to state regulation many aspects of toxic chemicals generally. Massachusetts has utilized its state authority to deal with chemicals in a host of ways.
For example, toxics are regulated through the Massachusetts Right to Know law, G.L. c. 111F. Concerned that residents understand the health and safety risks involved in the town's industries, this law requires cities and towns to respond to citizens' requests for information on hazardous substances used by local employers in the course of their routine work, and makes sure town emergency response personnel are aware of potential hazards. Each town has responsibility for enforcing this law, and also is subject to its terms as an employer. The selectmen designate the municipal coordinator, who is usually the fire chief, fire commissioner, public health commissioner, or public health officer. In small towns, the selectmen may designate one of the board's members to be municipal coordinator.
The agency known as the Pesticide Board within the Department of Agricultural Resources(DAR) promulgates and administers state requirements similar to those imposed by the federal Insecticide, Fungicide, and Rodentcide Act (FIFRA), 40 C.F.R. 152. These require state registration of pesticides, broadly defined, registration and proper training of applicators, and pesticides programs of public utilities. G.L. c.132B; 333 C.M.R. §§2.00, 11.00.
The Pesticide Board has promulgated comprehensive regulations dealing generally with pesticides, herbicides, fungicides, and rodenticides. They include specific rules on pesticide use for right-of-way management. These are critical to consult for maintenance of roads, railroads, and utility lines or pipes.
Legislation enacted in 2000 bans the use of certain pesticides inside grade schools and child care centers and requires parental notification before outside application of pesticides. Treated areas must be posted for at least seventy-two hours after the applications. The schools and the child care facilities also must implement integrated pest management plans (IPM).
Substantial state preemption of local regulations of pesticide use is dealt within the case of Town of Wendell v. Attorney General, 394 Mass. 5189 (1985). There is room, however, for some municipal requirements for warning signage and education, and perhaps a few other specifications.
The Lead Poisoning Prevention and Control Act and rules thereunder require identification and removal of lead paint, as well as detection and screening programs. G. L. c.111, §§190-199. The law applies with every change of ownership of residential property that contains lead paint. Failure of a residential property owner to comply with the Act may result in liability for all damages caused thereby.
The Clean Indoor Air Act restricts smoking in many public settings, including municipal buildings, nursing homes, supermarkets, mass transit facilities, airports, public elevators, open meetings of government bodies, health and daycare facilities, and student dormitories. G. L. c.270, §§21-22. Signs to restrict smoking in these areas are to be posted conspicuously.
Asbestos is defined as an air pollutant by the Department of Environmental Protection (DEP) and regulated by DEP and the Department of Public Health if it is in a “friable” condition, meaning capable of being blown around or otherwise dispersed. Provisions of the State Sanitary Code promulgated by DPH regulate the repair and removal of asbestos in residential settings. Asbestos removers must be licensed and meet specifications imposed by the Department of Labor and Industries (DLI).
DPH regulates persons who generate, transport, store, treat or dispose of low-level radioactive waste within the state, and regulates other radioactive hazards. G. L. c.111H; c.111, §4F.
In 1979 Urea Formaldehyde Foam Insulation (UFFI) was banned for use in the state by the DPH under its authority to ban hazardous substances. G. L. c.94B, §2(a). There is a trust fund, funded by industries involved with UFFI (manufacturing, distribution, and installation), which landowners may utilize to pay for the removal of UFFI. Landlords or sellers of residential property must determine whether a dwelling contains UFFI and, if so, disclose this and the formaldehyde air levels to tenants, prospective tenants and buyers. Air testing is available at no cost from DPH.
Underground tanks storing chemicals or petroleum products are regulated through the state's Underground Storage Tank Program, G.L. c.21 J. DEP has issued regulations governing the design, installation, maintenance, monitoring, and removal of tanks, and administers some reimbursement programs to assist in meeting the costs associated with cleanup and removal or replacement of tanks.
Cities and towns may adopt tougher tank standards than state and federal regulations through adoption of ordinances and bylaws. Typically, these bylaws authorize a local board or agency, such as the board of health or the fire department, to conduct an inventory of tanks in the municipality, and require local registration of underground tanks. Several communities have required outright the replacement of older tanks after a specified period of years.
This brief survey touches only a few of the ways in which toxic chemicals are regulated. Their use and especially their misuse can cause adverse environmental impacts, damage to real property, and personal injury. We serve clients in this field whether they seek information, prevention, compliance, abatement, enforcement, money penalties, money damages, or other relief from the agencies or the courts.