Applicability

The guidance contained in this policy is applicable to a Dispensing Facility with an UST System which has not submitted an Application for Certificate of Compliance to the Board by April 1, 1995, which submitted an Application for Certificate of Compliance by April 1, 1995 which was rejected or will not apply for a Certificate of Compliance pursuant to 503 CMR 2.07(2) (f). These Dispensing Facilities must: (1) submit an Application for Certificate of Compliance and (2) submit a Board Acceptable Site Assessment ("BASA") before an "Occurrence" (defined in 503 CMR 2.02 as " an event which results in a Release regardless of the date of discovery" ).

If a future Claimant has not submitted an Application for Certificate of Compliance by April 1, 1995, or the Claimant submitted an Application for Certificate of Compliance by April 1, 1995 which was rejected, but has completed a BASA and has concluded that there are levels of Petroleum Product which require notification to the Department of Environmental Protection (DEP) and which require Response Actions, excluding Limited Removal Actions (310 CMR 40.0318) (LRAs), then the eligibility requirements of 503 CMR 2.08 are not met and the Claimant would be ineligible under the Fund pursuant to 503 CMR 2.02 and 2.07(2)(b) for any costs incurred as a result of a release of Petroleum Products.

Definitions found in 503 CMR 2.02 have the same meaning when used in this policy. In addition, the term Operated means the Dispensing Facility dispensed gasoline or other fractions of Petroleum Products as described and defined in 503 CMR 5.02, Dispensing Facility. Petroleum Product is defined in 503 CMR 2.02 as a product that is obtained from distilling and processing crude oil and that is capable of being used as a motor fuel for the propulsion of a motor vehicle, boat or aircraft and was delivered to the Facility for such purpose. The term does not include naphtha-type jet fuel, kerosene-type jet fuel, a Petroleum Product destined for use in chemical manufacturing or feedstock of that manufacturing, waste oil, fuel oil or any fuel used for heating purposes.

Contaminant levels as used in the definition of Board Acceptable Site Assessment as defined in 503 CMR 2.02 shall have the same meaning as Petroleum Product.

Approach

The approach taken in this policy is to provide guidance to:

  1. reasonably assess whether levels of Petroleum Products are present at a Dispensing Facility due to a release of Petroleum Product which require notification to the Department of Environmental Protection (DEP) and which require a Response Action, excluding Limited Removal Actions (LRAs), at a Dispensing Facility; and

  2. identify site investigatory requirements based upon historical usage of Petroleum Products and evidence of OHM and Petroleum Products release(s) due to a release of Petroleum Product.

The BASA is intended to provide information obtained from limited investigative and assessment actions of sufficient scope and level of effort to make and/or guide determinations to assess for the presence or absence of Petroleum Products including the area of the former, existing, and/or proposed UST System. The outcome of this investigation will arrive at one of two conclusions:

  • Based upon records review, interviews, site reconnaissance, and site sampling activities, there are no levels of Petroleum Products, oil and/or hazardous materials or conditions at the Dispensing Facility related to a release of Petroleum Product which require notification to DEP and which require one or more Response Actions, excluding LRAs; or

  • Based upon the records review, interviews, site reconnaissance, and site sampling activities, there are levels of Petroleum Products, oil and/or hazardous materials or conditions at the Dispensing Facility related to a release of Petroleum Product which require notification to DEP and which require one or more Response Actions, excluding LRAs.

Additional guidance for conducting site assessments at Dispensing Facilities where a release has occurred is provided in the various references listed in Appendix 3 of the 21J regulations. Soil and groundwater sample collection and analysis should meet the requirements of 310 CMR 40.0017.

Timing of Board Acceptable Site Assessment

The following are scenarios under which a future Claimant may submit a BASA:

  1. The Claimant did not submit an Application for Certificate of Compliance by April 1, 1995, or the Claimant submitted an Application for Certificate of Compliance by April 1, 1995 which was rejected, but has completed a BASA and has concluded that there are no levels of Petroleum Products, related to the release of Petroleum Products at the Dispensing Facility which require notification to DEP and which require a Response Action, excluding LRAs.

  1. When submitting an Application for Certificate of Compliance, two original copies of the BASA documenting that there are no levels of Petroleum Products related to the release of Petroleum Products at the Dispensing Facility must be completed and submitted to the Board no more than 90 days after the date that the soil and groundwater samples were collected, except under 1.B below.

  2. When submitting an Application for Certificate of Compliance for a Dispensing Facility which first Operated before the effective date of this policy, the Claimant shall submit to the Board two original copies of the BASA within 180 days of the effective date of this policy. The laboratory reports shall be for soil and groundwater samples collected not more than 180 days prior to the effective date of this policy.

In each situation above, the Application for Certificate of Compliance shall have an original Board approved BASA attached to the submittal.

  1. The Claimant did not submit an Application for Certificate of Compliance by April 1, 1995, or the Claimant submitted an Application for Certificate of Compliance by April 1, 1995 which was rejected, but has submitted a Response Action Outcome (RAO) Statement, Waiver Completion Statement or Downgradient Property Status to the DEP in accordance with 310 CMR 40.0000.

  1. When submitting an Application for Certificate of Compliance For a Dispensing Facility which commenced Operations on or before April 1, 1995 for which an RAO Statement, Waiver Completion Statement or Downgradient Property Status was submitted to the DEP not more than 180 days before the effective date of this policy, a copy of the RAO Statement, Waiver Completion Statement or Downgradient Property Status shall be submitted with the Application for Certificate of Compliance to the Board within 180 days of the effective date of this policy. In addition, the Phase I and, if applicable, Phase II Reports, and the most recent DEP Response Action submittal of site assessment, containment, and removal activities must be provided to the Board with the Application for Certificate of Compliance. If the Claimant fails to submit an Application for Certificate of Compliance with the RAO Statement, Waiver Completion Statement or Downgradient Property Status within 180 days of the effective date of this policy, the Claimant shall submit two original copies of an updated BASA pursuant to Paragraph 1.A above.

  2. When submitting an Application for Certificate of Compliance for a Dispensing Facility which commenced Operations after April 1, 1995 for which an RAO Statement, Waiver Completion Statement or Downgradient Property Status was submitted to the DEP not more than 365 days before the effective date of the policy, a copy of the RAO Statement, Waiver Completion Statement or Downgradient Property Status shall be submitted with the Application for Certificate of Compliance to the Board within 180 days of the effective date of this policy. In addition, the Phase I and, if applicable, Phase II Reports, and the most recent DEP Response Action submittal of site assessment, containment and removal activities must be submitted with the Application for Certificate of Compliance. If the RAO Statement, Waiver Completion Statement or Downgradient Property Status was submitted to DEP more than 365 days prior to the effective date of this policy, then the Claimant shall submit two original copies of a BASA pursuant to Paragraph 1.A above.

  3. When submitting an Application for Certificate of Compliance for a Dispensing Facility which commenced Operations after April 1, 1995 for which an RAO Statement, Waiver Completion Statement or Downgradient Property Status was submitted to DEP after the effective date of this policy, a copy of the RAO Statement, Waiver Completion Statement or Downgradient Property Status shall be submitted with the Application for Certificate of Compliance to the Board within 90 days of submission of the RAO Statement, Waiver Completion Statement or Downgradient Property Status to the DEP. In addition, the Phase I and, if applicable, Phase II Reports, and the most recent DEP Response Action submittal of site assessment, containment and removal activities must be submitted with the Application for Certificate of Compliance. If the Claimant fails to submit an Application for Certificate of Compliance within 90 days of submitting an RAO Statement, Waiver Completion Statement or Downgradient Property Status to DEP, the Claimant shall submit two original copies of the BASA pursuant to Paragraph 1.A above.

  1. In each situation above, the Claimant shall submit two original copies of the BASA and RAO Statement, Waiver Completion Statement, Downgradient Property Status, Phase I and/or Phase II Reports, and the most recent DEP Response Action submittal of site assessment, containment and removal activities to the Board.

  1. Those Claimants required to perform a BASA must attach a copy of the Board approved BASA when submitting an Application for Eligibility.