Tag Archives: Chapter 21E

It’s Better to Be the Plaintiff Than the Defendant in Massachusetts Superfund Cases

In the early days of Superfund, defense lawyers used to joke that all government lawyers had the same oral argument script.  It was three sentences long.

Good afternoon, your honor.  My name is _____ and I represent the government in this case.  We win.

Lawyers in Massachusetts rightly feel that that pretty much remains the state of affairs in Massachusetts, at least for private cost recovery or property damage claims. … More

One Final Word on Peterborough Oil: Yes, MTBE Is An Additive

The final answer to the critical issue raised by the recent Peterborough Oil Company decision is that MTBE is an additive and is not, in MassDEP’s view, subject to the “oil exemption” under the Massachusetts Contingency Plan.

I have to say that I’ve done few posts in recent years that have prompted more immediate responses than those on this case.  After yesterday’s little birdie suggesting that MassDEP might be taking the position that MTBE is subject to the oil exemption,… More

When Is Gasoline Not Oil (At Least In Massachusetts)? When It’s Leaded, Of Course.

Unlike CERCLA, the Massachusetts Superfund law, Chapter 21E, does include oil within its ambit.  However, oil is not treated exactly the same as hazardous materials.  One difference is that, in 2007, MassDEP revised the Massachusetts Contingency Plan to provide that, in certain circumstances, where “Contamination is limited to oil,” the exposure point concentration is measured at the Public Water Supply well, rather than in each of the monitoring wells, as is otherwise the case.… More

I Thought Redeveloping Brownfields Was a Good Idea: Apparently the Boston Globe Hasn’t Gotten the Message

In an article earlier this week, the Boston Globe reported on concerns that the Massachusetts Department of Environmental Protection is planning to weaken cleanup standards for hazardous waste sites in Massachusetts, seemingly in response to pressure from developers.  The article is so wrong and the concerns are so misplaced that some response is necessary.

First, we expect MassDEP to regulate in the face of uncertainty. … More

Indemnification Agreements Under CERCLA Do Not Affect Liability to Entities That Are Not Parties to the Agreement

Section 107(e) of CERCLA provides that

No indemnification, hold harmless, or similar agreement or conveyance shall be effective to transfer from the owner or operator of any vessel or facility or from any person who may be liable for a release or threat of release under this section, to any other person the liability imposed under this section. Nothing in this subsection shall bar any agreement to insure,… More

The Wheels of Regulatory Reform May Grind Slowly, But In Massachusetts, At Least They Are Grinding

In April 2011, MassDEP launched a regulatory reform initiative. Yours truly participated in the original stakeholder group working with MassDEP to develop a list of potential reforms. Last week, MassDEP provided an update on the status of the reform package. While it has probably taken longer than Commissioner Kimmell had hoped, I am pleased to say that there is a lot of good stuff at this point, including some items that have been added since the original Action Plan was finalized in March 2012.… More

MassDEP Issues Vapor Intrusion Guidance: Don’t Worry; It’s Only Guidance

Last week, MassDEP finally issued its long-awaited vapor intrusion guidance. Including appendices, it is 148 pages. There is a separate 52-page response to comments on the draft guidance. MassDEP has certainly learned that guidance must at least be described as guidance. The disclaimer runs a full page, and includes the following text:

MassDEP generally does not intend the guidance to be overly prescriptive.… More

Democracy In Action: Environmental Legislation Edition

What follows is the full text of Bill S.325, introduced in the Massachusetts legislature this term. 

SECTION 1. LIABILITY RELIEF In the event an individual or group of individuals unknowingly purchase contaminated residential land that does not qualify for Brownsfield funding and are not the polluter, they must be relieved of liability and fines in connection with said pollution. The Department of Environmental Protection(DEP) must be proactive in balancing public safety with feasibility.… More

MassDEP Issues Its Regulatory Reform Proposal

Earlier this week, the Massachusetts DEP issued a package of regulatory reforms. While the focus of the package was on finding ways for MassDEP to implement its mission with fewer resources, a number of the reforms are specifically targeted at facilitating the development of renewable energy. If you want to see more about that angle, you can take a look at our client alert about the reforms.… More