SECTION 1 (TITLE):
This act shall be known as the Hold Big Polluters Accountable Act.

SECTION 2 (PURPOSE):
This act gives states and localities the tools they need to support environmental cleanup, thereby creating jobs and protecting communities.

SECTION 3 (PROVISIONS):

(a) Except as otherwise provided in this section,

(b) 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 (1) 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 (2), (3), (4), or (5) .

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

(d) 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 (c) 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.

(e) 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.

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.

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.

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 stae 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.

(f) 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.

(g) 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.

(h) 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) 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:

(j) 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

(k) 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.

(l) 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.

(m) 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.

(n)

(o) Any order issued pursuant to subsection (n) 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.

(p)

(q) 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.

(r) 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.