State Senator James Eldridge became aware of the inadequacies in current Massachusetts underground storage tank (UST) law after a 2012 UST oil spill in Marlborough, Massachusetts, where over 2,000 gallons of gasoline was released from a Citgo gas station. The gasoline spread to the properties of four neighboring residents (third parties). One of the homeowners, the Chavezs, were selling their home before the spill occurred. As of 2015, they still are unable to sell their home due to the gasoline contamination. The Buckley family was also affected by the spill. Because of the spill, the Buckleys were forced to remove their pool, outdoor bar, and outdoor restroom (Senator Eldridge, personal communication, September 18, 2015). As of 2015, three years after the occurrence, the spill is still being cleaned up, and the third parties affected have not received compensation for property damages (Karen Buckley, personal communication, November 3, 2015).
Massachusetts policy and gasoline spill cleanups
In the Marlborough case and other occurrences involving gasoline spills, the Massachusetts Department of Environmental Protection (MADEP) is the first responder. The MADEP performs initial and final contamination testing, and determines if the site must undergo remediation. If it has to go through remediation, the potentially responsible party (PRP) is accountable for the cleanup. The PRP, usually the gas station owner, hires a Licensed Site Professional (LSP) to perform the actual cleanup. The LSP is licensed by the state to perform hazardous waste remediation, and works for an environmental consulting company. The actual site remediation process is often expensive and a financial burden on the PRP. For this reason, Massachusetts has a fund set aside specifically for UST spills, the 21J fund. The fund ii is created through M.G.L c. 21J, and is funded by an annual $250 tank ownership fee and gasoline tax of $0.24 per gallon. The PRP can be reimbursed for the cost of a tank spill from the 21J fund for up to $1.5 million per occurrence, leaving an additional $1 million aside for third party property damages. The PRP is responsible for the cleanup of abutting properties affected, but not for restoration of property value. Third parties must bring an action in court to receive financial compensation for property damages. If granted financial compensation, the PRP must pay for third party restoration, but then files to the 21J fund for reimbursement. The process for third parties to receive property loss damages is time consuming and expensive (Senator J.Eldridge, personal communication, Sept. 18, 2015).
Goal and objectives of our project
Our project aimed to provide Senator Eldridge with important components for a comprehensive new Massachusetts UST spill cleanup policy, specifically addressing funding and outreach for third parties affected. We completed five objectives in order to develop a robust UST policy; (1) We became well-versed on the current UST policies, M.G.L c. 21J and 21E; (2) We spoke with environmental consulting companies who gave us insight into states with comprehensive UST policies; (3) We conducted online content analysis of the laws in the states identified in the previous objective; (4) After becoming well-versed on UST policies from other states, we explored how these states implemented their policies; and (5) Finally, we comparatively analyzed states to define a comprehensive UST policy and recommend particular practices for Massachusetts to incorporate. We developed several findings from our research.
Finding 1: The funding available to the responsible and affected third parties varies between states based on several factors including: number of active USTs, population density, typical cost iii of cleanup, and state budget. Within the states we researched, the common funding cap was at least $1.5 million dollars for the PRP, with additional amounts of funding for third party restoration. New York and New Jersey have the highest available compensation for third parties, and allow the affected families to have direct access to the funds.
Finding 2: Although state agencies are responsible for overseeing UST spills and distributing funds, LSPs are responsible for the physical cleanup process. The regulation of LSPs varies between states and severity of cases. Increased LSP proactive approaches may occur in cases where human health or natural resources are at risk.
Finding 3: State agency involvement in the cleanup process varies based on staffing, number of open cases, the contamination of natural resources, and the severity of the spill. The states with the highest environmental agency involvement are those that heavily rely on groundwater as their primary drinking water resource, such as Florida and New Hampshire. MADEP has limited involvement in the cleanup process, because they utilize a semi-privatized system to clean up spills. The Massachusetts UST cleanup system relies heavily on LSPs to clean up the contamination, with the MADEP involved only at the beginning and end of the process.
Finding 4: Public outreach about a spill is necessary to ensure the public’s safety. The New Jersey Department of Environmental Protection (NJDEP) offers a detailed plan to notify the public of the spill. The responsible party and hired LSP must send a fact sheet containing information on the spill and cleanup process to the surrounding public within two weeks, and publicize the sheet in the local newspaper within 30 days. Massachusetts lacks a comprehensive outreach system, leaving the third parties confused about whom to go to for information.
Finding 5: We conducted case studies on the Marlborough, MA and Charlton, MA oil spills. The key findings from the 2012 Marlborough spill were a lack of communication to the Buckley family on the progress of the cleanup, and limited regulation of fund spending. Within three years of the spill, the 21J money was completely spent, with no funds left for restoration of the Buckley property. In the case of the Charlton spill of the early 1980s, the key finding was an overall lack of preventive measures taken. The spill represents the previously accepted belief that oil would disintegrate over time, and demonstrates how this practice can lead to further damages to human health and natural resources (Mark Baldi, personal communication, November 18, 2015). Without further regulation, two other spills occurred leaving widespread water contamination in Charlton with an estimated 50-70 private properties and wells compromised (Mark Baldi, personal communication, November 18, 2015).
Findings Conclusion: Based on the data collected, we defined a “comprehensive” UST policy as: (1) a policy that provides the necessary funds for both the remediation and restoration of all affected properties, (2) provides easy access to this fund for third parties, (3) lists necessary outreach to the community about the spill and cleanup process, and (4) assures an effective cleanup process with both the timeline and available finances taken into consideration. The states identified as having a partially or completely comprehensive policy include Florida, New Hampshire, New Jersey, and New York. We have provided several recommendations to move Massachusetts to a robust and comprehensive UST cleanup policy.
Recommendation 1: We recommend more efficient access to the 21J fund to cover third parties. Currently, there is no alternative method to taking legal action against the PRP for compensation or restoration. The third party should be able to work with the LSP to file directly to the v MADOR, and then only in the case of being denied, or partially accepted, should the third parties need to take legal action.
Recommendation 2: To help affected third parties, such as the Buckleys and Chavezs, learn about the oil spill cleanup process, we recommend a short and long term community outreach program. The short-term solution consists of an updated MADEP website where third parties, LSPs, and tank owners can look to find the proper contacts to answer their questions and report emergencies. The long-term solution consists of a third party communication program, similar to New Jersey’s as discussed in finding 3. This program will satisfy third parties, and not require further manpower from the MADEP.
Recommendations 3 and 4: A future WPI student group should further research MADEPs involvement in specific cases where natural resources or drinking water is affected. From finding 3, increased MADEP involvement is needed in these cases; however increased manpower is not currently available. A case must be made for increased manpower of the MADEP, or an alternative solution found. Finally, in recommendation 4, we suggest further research be undertaken to identify potential challenges when passing a new bill, and to seek potential solutions.
We hope that these recommendations help the Office of State Senator James Eldridge propose a comprehensive UST cleanup policy that will aid families such as the Buckleys and Chavezs. A comprehensive policy will not only benefit families currently enduring the remediation process of their properties, but future families who will be unfairly impacted by UST spills.