a) Except as otherwise provided in this section,

i) the owner or operator of a vessel or a site from or at which there is or has been a release or threat of release of oil or hazardous material;

ii) any person who at the time of storage or disposal of any hazardous material owned or operated any site at or upon which such hazardous material was stored or disposed of and from which there is or has been a release or threat of release of hazardous material;

iii) any person who by contract, agreement, or otherwise, directly or indirectly, arranged for the transport, disposal, storage or treatment of hazardous material to or in a site or vessel from or at which there is or has been a release or threat of release of hazardous material;

iv) any person who, directly, or indirectly, transported any hazardous material to transport, disposal, storage or treatment vessels or sites from or at which there is or has been a release or threat of release of such material; and

v) any person who otherwise caused or is legally responsible for a release or threat of release of oil or hazardous material from a vessel or site, shall be liable, without regard to fault,

1) to the state and any subdivisions (such as counties, other appropriate localities) for all costs of assessment, containment, removal and remediation incurred by the state or subdivision

2) to the state and any subdivisions for all damages for injury to and for destruction or loss of natural resources, including the costs of assessing and evaluating such injury, destruction or loss, incurred or suffered as a result of such release or threat of release,

3) to any person for damage to his real or personal property incurred or suffered as a result of such release or threat of release, 

4) to a person who meets the requirements set forth in section b) for medical monitoring, and,

5) Except as provided in paragraphs c) and l), such liability shall be joint and several.

b) Medical Monitoring 

i) A person without a present injury or disease shall have a cause of action for the remedy of medical monitoring against a person who meets the requirements set forth in section a)  from which a toxic substance was released if all of the following are demonstrated by a preponderance of the evidence:

1) exposure at a rate significantly greater than the general population;

2) to a proven toxic substance;

3) as a result of tortious conduct of the defendant;

4) as a proximate result of the exposure, plaintiffs have suffered an increased risk of contracting a serious disease;

5) the increased risk makes it medically necessary for the plaintiffs to undergo periodic medical examination different from that prescribed for the general population in the absence of exposure; and

6) monitoring procedures exist that are reasonable in cost and safe for use.

ii) If the cost of medical monitoring is awarded, a court shall order the defendant found liable to pay the award to a court-supervised medical monitoring program administered by one or more appropriate health professionals, including professionals with expertise in exposure to toxic substances or expertise with treating or monitoring the relevant latent disease or diseases.

iii) Upon an award of medical monitoring under subsection b) of this section, the court shall award to the plaintiff reasonable attorney’s fees and other litigation costs reasonably incurred.

iv) This chapter shall be the exclusive remedy for a person without a present injury to bring a cause of action to seek medical monitoring due to exposure to a proven toxic substance.

1) Except as provided under subdivision i) of this subsection, nothing in this chapter shall be deemed to preclude the pursuit of any other civil or injunctive remedy or defense available under statute or common law, including the right of any person to seek to recover for damages related to the manifestation of a latent disease. The remedies and defenses in this chapter are in addition to those provided by existing statutory or common law.

v) This section shall not increase the rights and remedies available under state law to an employee who suffers a personal injury by accident arising out of and in the course of employment, provided that state law shall not limit the right of a person who has not suffered a personal injury by accident arising out of and in the course of employment to bring a cause of action for medical monitoring.

vi) Definitions

1) “Person” means any individual; partnership; company; corporation; association; unincorporated association; joint venture; trust; municipality; the State or any agency, department, or subdivision of the State; federal agency; or any other legal or commercial entity.

2) “Disease” means any disease, illness, ailment, or adverse physiological or chemical change linked to exposure to a proven toxic substance. A disease is serious if it has the potential to cause death, disability, or chronic pain.

3) “Proven toxic substance” means any substance, mixture, or compound that may cause personal injury or disease to humans and that satisfies one or more of the following:

(a) The substance, mixture, or compound is listed on the U.S. Environmental Protection Agency Consolidated List of Chemicals Subject to the  Emergency Planning and Community Right-To-Know Act, Comprehensive Environmental Response, Compensation and Liability Act, and Section 112(r) of the Clean Air Act;

(b) The substance, mixture, or compound is defined as a “hazardous material” under rules adopted in [STATE STATUTES];

(c) Testing has produced evidence, recognized by the National Institute for Occupational Safety and Health or the U.S. Environmental Protection Agency, that the substance, mixture, or compound poses acute or chronic health hazards; 

(d) The Department of Health has issued a public health advisory.

4) “Release” means any act or omission that allows a proven hazardous or toxic substance to enter the air, land, surface water, groundwater.

c) Any person otherwise liable for any costs or damages under section a) above who establishes by a preponderance of the evidence that only a portion of such costs or damages is attributable to a release or threat of release of such oil or hazardous material for which he is included as a party shall be required to pay only for such portion. No person who is liable solely pursuant to clause i) of paragraph a) and who did not own or operate the site at the time of the release or threat of release in question and did not cause or contribute to such release or threat of release shall be liable to any person who is liable pursuant to clauses ii), iii), iv), and v) .

d) Subject to the limitation provided in paragraph e), there shall be no liability under section a) for a person otherwise liable who can establish by a preponderance of the evidence,

i) that the release or threat of release of oil or hazardous material and the damages resulting therefrom were caused by:

1) an act of God;

2) an act of war;

3) an act or omission of a third party other than an employee or agent of the person, or than one whose act or omission occurs in connection with a contractual relationship existing directly or indirectly, with the person, except where the sole contractual arrangement arises from a published tariff and acceptance for carriage by a common carrier by rail, if the person establishes by a preponderance of the evidence that he exercised due care with respect to the oil or hazardous material, that he took precautions against foreseeable acts or omissions of any third party and the consequences that could foreseeably result from such acts or omissions, and that he complied with all notification requirements of section seven; or

4) any combination of the foregoing paragraphs, or

ii) with respect to liabilities under section a) v) 1) and 2) , that the substance or amount thereof released or threatened to be released does not represent a long or short term danger to the public health, safety, welfare or the environment.

e) Any person whose property has been the site of a release of hazardous material for which the department has incurred costs for assessment, containment or removal pursuant to state law, and who can establish by a preponderance of the evidence that he is otherwise eligible for the defenses set forth in paragraph d) shall be liable to the state and subdivisions only to the extent of the value of the property following state or subdivisions’ assessment, containment, response and remediation actions, less the total amount of costs reasonably paid by said person for carrying out assessment, containment, response and remediation actions in compliance with regulations promulgated under this section.

f) All persons liable pursuant to this section who are liable for a release or threat of release for which the state or subdivisions incur costs for assessment, containment, removal and remediation shall be liable, jointly and severally, to the state and/or subdivision for their liability as set forth in this section.

g) In an action for recovery by the state and/or subdivisions of the costs it incurs for assessment, containment and removal, for the purpose of inducing the party in question and others to voluntarily and without delay participate in carrying out and paying for response actions, and not for the purpose of imposing a penalty, the commonwealth shall have the right to seek and recover more than the actual costs it incurs for assessment, containment and removal, subject to the following provisions.

h) In cases where a person liable pursuant to this chapter has unreasonably or in bad faith failed or refused to comply with an assessment, containment, removal or remediation order, the court shall award the state or subdivisions not less than two times nor more than three times the full amount of its response costs, plus litigation costs and reasonable attorneys’ fees, against such liable person. In such an action, the burden of proof shall be on such person to persuade the court by a preponderance of the evidence that it acted reasonably and in good faith in failing or refusing to comply with the order. If such person so persuades the court, such person’s liability to the state for response action costs in that action shall be only the state and/or subdivisions’ actual recoverable response costs, plus litigation costs and reasonable attorneys’ fees.

i) In all cases not provided for in the preceding paragraph, the court may award the state and/or subdivision up to three times the full amount of its response costs, plus litigation costs and reasonable attorneys’ fees, against a person liable pursuant to this chapter. In such an action, the burden of proof shall be on the state and/or subdivision to persuade the court by a preponderance of the evidence that such person acted unreasonably or in bad faith in not carrying out a response action or actions for which the state and/or subdivision is seeking recovery of more than its actual response costs, aside from litigation costs and reasonable attorneys’ fees. If the state and/or subdivision so persuades the court, the court shall use its equitable discretion to determine the appropriate multiple of response costs, not to exceed three times the response costs, which shall be awarded to the state and/or subdivision against such liable person, plus litigation costs and reasonable attorneys’ fees. If the state and/or subdivision does not so persuade the court, such person’s liability to the commonwealth for response costs in that action shall be only the department’s actual recoverable response costs, plus litigation costs and reasonable attorneys’ fees.

j) No indemnification, hold harmless, or similar agreement or conveyance shall be effective to transfer from the owner or operator of any vessel or site or from any person who may be liable for a release or threat of release of oil or hazardous material under this section, to any other person the liability imposed under this section. 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.

k) If a person is not otherwise liable for a release or threat of release of oil or hazardous material pursuant to this chapter, such person shall not become liable solely by the mere act of either retaining or paying for the retention of a waste site cleanup professional licensed pursuant to state law to conduct a response action or portion of a response action at or for a site or vessel; provided, the response action or portion of a response action is conducted in compliance with this section and state law.

l) Any person who owns a one- to four-family residence that is a site at which the state and/or subdivision has incurred costs for response actions shall not be liable to the state and/or subdivision for those costs, if:

i) they are not a person described in clauses ii), iii), iv), or v) of section a);

ii) the site was being used exclusively as a one- to four-family residence throughout his ownership and he claimed permanent residency at the site; and

iii) they immediately notified the state or other relevant agency of the release of the oil or hazardous material upon the site as soon as he had knowledge of it.

m) Notwithstanding any other provision of this chapter, no person who is otherwise liable for a release or threat of release of oil or hazardous material pursuant to this chapter shall avoid, reduce or postpone such liability or such person’s ability to pay for such liability, or be allowed to avoid, reduce or postpone such liability or such person’s ability to pay for such liability, by:

i) establishing any form of estate or trust;

ii) by establishing indicia of ownership to protect what purports to be a bona fide security interest;

iii) by any conveyance or transfer of ownership or control of property or assets of any kind that purports to be bona fide transaction but that is intended to avoid, reduce or postpone such liability or such person’s ability to pay for such liability; or

iv) by any other means that purport to be bona fide but that are intended to avoid, reduce, or postpone such liability or such person’s ability to pay for such liability.

n) An agency of STATE or a public utility company that owns a right of way that is a site at which the department has incurred costs for response actions shall not be liable to STATE for those costs if the agency or public utility company, respectively, can establish by a preponderance of the evidence that

i) it is not a person described in paragraph a);

ii) no act of the agency or public utility company, or of the agency’s or public utility company’s employee or agent, caused or contributed to the release or threat of release or caused the release or threat of release to become worse than it otherwise would have been;

iii) it notified the department immediately upon obtaining knowledge of a release or threat of release for which notification is required pursuant to, and in compliance with STATE LAW AND REGULATIONS;

iv) it provided reasonable access to conduct response actions, and to other persons intending to conduct necessary response actions;

v) it has undertaken a response action or portion of a response action at the site in compliance with STATE LAW AND REGULATIONS; and

vi) it did not know or have reason to know of the presence of oil or hazardous material on the site when it came into possession of the right of way.

o) In any action under this chapter, the liability of a locality when sponsoring and conducting a household hazardous waste collection for injury or loss of property or personal injury or death shall be limited to acts or omissions of the municipality or its agents or employees, during the course of the household hazardous waste collection which are shown to have been the result of negligence or of reckless, wanton or intentional conduct; provided, however, that persons conducting a household hazardous waste collection for a municipality on a volunteer basis shall not incur any personal liability except for acts or omissions which are shown to have been the result of reckless, wanton or intentional conduct.

p) DEPARTMENT shall be responsible, as provided in this section, for hazardous material remedial programs. The department shall have the authority to require the development and implementation of a DEPARTMENT-approved hazardous material remedial program.

q) DEPARTMENT shall have the authority to delegate such responsibility for a specific site to the subdivision in which such site is located and to contract with any other person to perform necessary work in connection with such sites. A subdivision also has the authority to impose orders and conduct assessment, containment, and removal and remediation under this section, to be undertaken in accordance with the DEPARTMENT-approved remedial program.

r) Whenever the DEPARTMENT or a subdivision finds that hazardous material constitutes a significant threat to the environment, it may order any responsible party under section a) above to develop a hazardous material remedial program providing for assessment, containment, removal and remediation, subject to the approval of the department or subdivision, at such site, and to implement such program within reasonable time limits specified in the order.

s) Whenever the DEPARTMENT, after investigation, finds:

i) that hazardous wastes at an inactive hazardous waste disposal site constitutes a significant threat to the environment; and

ii) that such threat is causing or presents an imminent danger of causing irreversible or irreparable damage to the environment;  and

iii) the threat makes it prejudicial to the public interest to delay action until a hearing can be held pursuant to this law, the department maywithin the funds available to the department, develop and implement an inactive hazardous waste disposal site remedial program for such site. Findings required pursuant to this paragraph shall be in writing and may be made by the commissioner on an ex parte basis subject to judicial review.

t) Any order issued pursuant to subsection o) of this section shall be issued only after notice and the opportunity for a hearing is provided to persons who may be the subject of such order.

u) Whenever a person ordered to undertake assessment, containment, removal and/or remediation pursuant to paragraph o) has failed to do so within the time limits specified in the order, the DEPARTMENT or subdivision may develop and implement a hazardous material remedial program providing for assessment, containment, removal and/or remediation of such site. The reasonable expenses of developing and implementing such remedial program by the department shall be paid by the person to whom the order was issued.

v) In the event that the DEPARTMENT or subdivision has found that hazardous material at a site constitute a significant threat to the environment, but after a reasonable attempt to determine who may be responsible is either unable to determine who may be responsible, or is unable to locate a person who may be responsible, it may develop and implement an hazardous material remedial program for such site. It shall make every effort, in accordance with the requirements for notice, hearing and review provided for in this title, to secure appropriate relief from any person subsequently identified or located who is responsible for the disposal of hazardous waste at such site.

w) Notwithstanding the above, the DEPARTMENT or state subdivision shall be authorized to develop and implement a hazardous material remedial program if, in its discretion, it is cost-effective to do so.

x) Whenever STATE HEALTH OFFICIAL makes a declaration and finding pursuant to STATE PUBLIC HEALTH LAW, the department may implement a hazardous material remedial program in the same manner as above.

y) When a subdivision develops and implements pursuant to an agreement with the DEPARTMENT a hazardous material remedial program as approved by the DEPARTMENT for a site which is owned or has been operated by such subdivision or when the DEPARTMENT, pursuant to an agreement with a subdivision, develops and implements such a remedial program, the DEPARTMENT HEAD shall, in the name of the state, agree in such agreement to provide seventy-five percent of the eligible costs of such remedial program for which such subdivision is liable solely because of its ownership and/or operation of such site and which are not recoverable from or reimbursed or paid by a responsible party or the federal government.

z) Nothing contained within this section shall be construed as impairing or in any manner affecting the right or jurisdiction of the attorney general to seek appropriate relief pursuant to statutory or common law authority.

aa) Any duly designated officer or employee of the DEPARTMENT or subdivision or any other state agency, and any agent, consultant, contractor, or other person, including an employee, agent, consultant, or contractor of a responsible person acting at the direction of the DEPARTMENT or subdivision, so authorized in writing by the DEPARTMENT HEAD or subdivision, may enter any hazardous material site and areas near such site to implement a remedial program for such site, provided the commissioner has sent a written notice to the owners of record or any known occupants of such site or nearby areas of the intended entry and work at least three days prior to such initial entry.

bb) The provisions of this act are severable. If any provision of this act or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.