RE79R13: 21E for Residential Real Estate

A Description of 21E for Residential Real Estate


  1. What is a release of heating oil? Who, what, when, where, how, why
  2. Immediate steps to take after an oil release
  3. Oil Release Cleanup, a step by step process
  4. Hiring and managing an LSP and cleanup contractor
  5. Overview of the privatized MCP state cleanup process
  6. Understanding assessment
  7. Cleanup options
  8. Helpful hints and shortcuts
  9. Overview of property owner legal responsibilities
  10. Financial assistance, what are the alternatives
  11. Mass DEP fees, what you need to know
  12. Typical home heating oil system and how they can leak
  13. Tips for maintaining a home heating oil system
  14. Information to retain in a heating oil cleanup notebook
  15. Suggested Emergency procedures for home heating oil spills


A. 21E - M.G.L. c. 21E Massachusetts Oil and Hazardous Material Release Prevention Act also known as the State Superfund Law is the statute encompassing issues related to the identification and cleanup of property contaminated by releases of oil and/or hazardous material to the environment. Widely referenced as merely “21E”.

B. BROWNFIELDS - Industrial sites with presence or potential presence of hazardous substances or pollutants. U.S. Environmental Protection Agency (EPA) defines a Brownfield site as "real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant."

C. DEP - Massachusetts Department of Environmental Protection

D. HAZARDOUS SUBSTANCE - "Any Material that poses threat to the environment or to public health. Under Superfund, the Environmental Protection Agency lists hundreds of hazardous substances that are either toxic (leads to death), corrosive (acidic), ignitable (danger from heat or smoke), or reactive (can lead to explosions)." - Language of Real Estate (Reilly)

E. LSP or Licensed Site Professional - Licensing designation for consultants issued by Massachusetts Department of Environmental Protection (DEP).

F. CERCLA - Federal Superfund known as the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) - 42 U.S.C. § 9601-9675, enacted by Congress on December 11, 1980.

G. MCP - Massachusetts Contingency Plan - 310 CMR 40 - governs the clean-up process in Massachusetts.

H. RAO - Response Action Outcome Statement - An RAO Statement states response actions were sufficient to achieve a level of no significant risk or at least ensure that all substantial hazards were eliminated.

I. SUPERFUND - Common reference for United States environmental policy officially known as Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

J. SUPERLIEN - Statutory lien for environmental cleanup expenses senior to all existing or future liens on the same property.

III. 21E – M.G.L. c. 21E

A. State Superfund Law.

B. The statute encompassing issues related to the identification and cleanup of property possibly contaminated by releases of oil and/or hazardous material to the environment.

C. History of M.G.L. c. 21E

i. M.G.L. c. 21E first passed by legislature in March 1983

ii. Modeled after federal law

iii. Provided for assessing and remediating hazardous sites

D. Massachusetts Contingency Plan (MCP) (310 CMR 40).

i. Regulatory framework for cleaning up hazardous waste sites.

ii. Fluid plan that continues to receive periodic updates and amendments. iii. Similar to federal Superfund known as the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).

iv. When contaminated property is discovered, it must be investigated and cleaned up according to state approved plan.

v. Created in 1988 to provide for implementation of 21E under jurisdiction of Massachusetts Department of Environmental Protection (DEP)

vi. Provides criteria for which hazardous material contaminations must be reported to DEP, who has reporting responsibility and how soon this notification must occur.

vii. Provides for a series of phase reports culminating in a Response Action Outcome Statement (RAO) closing out the issue and provide protection of health, safety, public welfare and the environment.

viii. Most contaminated property in Massachusetts is cleaned up under 21E and the MCP rather than CERCLA.

E. Licensed Site Professional (LSP) –

i. Licensing procedure for consultants developed by DEP.

ii. Consultant provides assistance to property owners to assure site is cleaned up following the MCP process.

iii. The licensed site professional minimizes DEP involvement in site activities by overseeing actions conducted at the site.

iv. DEP maintains a list of licensed site professionals and audits their activities.

F. 21E Environmental Site Assessment (“ESA”)

i. 21E report or ESA is the results of site investigation conducted by a qualified environmental professional, generally an LSP.

ii. Lending institutions may require environmental assessments where there is potential for contamination before considering financing.

iii. Part of due diligence process

iv. Result of site investigation, collecting samples of soil, groundwater and relevant items. Analysis driven by property’s historic use. Buildings and land are part of site investigation. Samples laboratory analyzed.

v. Property owners and other legally responsible parties , required to notify DEP of any chemical contamination exceeding regulatory thresholds.

vi. If site investigation identifies a level of contamination requiring notification to DEP, LSP must oversee further assessment or cleanup actions.  

IV. BROWNFIELDS ACT - M.G.L. c. 206 of the Acts of 1998

A. 1998 Massachusetts law entitled An Act Relative to Environmental Cleanup and Promoting the Redevelopment of Contaminated Property commonly known as the Brownfields Act.

i. Established new incentives to encourage parties to clean up and redevelop contaminated property.

ii. Provides liability relief and financial incentives to attract new resources for these contaminated and under-utilized properties.

iii. Original funding of $50,000,000 increased in 1990 funding by $30,000,000 was provided.

iv. Covenant not to sue

V. ENVIRONMENTAL ISSUES - In-ground hazardous contamination

  1. The Dangers of Hazardous Waste: Definition and Examples
  2. Cost to owner or developer could be prohibitive
  3. Joint and several liability
  4. Reportable vs. Minimum thresholds in Massachusetts
  5. Illegal Disposal of Materials
  6. Difference between "Superlien" and the "Superfund" Act
  7. Impact to Massachusetts Owner, Lender and Title Insurance
  8. Secured Creditors Environmental Insurance vs. Environmental Warranty Insurance: Massachusetts Impact
  9. Massachusetts Resources available on an area's environmental condition
  10. Environmental Assessment in Massachusetts:
    1. Site Inspection
    2. Site History
    3. Subsurface Investigation
  11. Clean-Up Mitigation Measures
  12. Who pays for the 21E Report in Massachusetts?
  13. When must the 21E report be completed and the impact on sales negotiations?
  14. Massachusetts real estate licensee liability
  15. Brownfields: Federal Legislative credit, September 1996
  16. Return of underutilized land to the municipal tax roll
  17. Land will be used for development and employ people in new workplace.
  18. Use of private vs. public capital



  • M.G.L. c. 21E
  • 310 CMR 40
  • M.G.L. c. 206 of Acts of 1998 (Brownfields Act)

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