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40.0300:   Notification of Releases and Threats of Release of Oil and Hazardous Material; Identification and Listing of Oil and Hazardous Material

 

      310 CMR 40.0301 through 40.0399, cited collectively as 310 CMR 40.0300, contain requirements and procedures for notifying the Department of releases and threats of release of oil and/or hazardous material.

 

40.0301:   Purpose and Scope

 

(1)   The purpose of 310 CMR 40.0300 is to identify oil and hazardous material which are subject to the provisions of this Contingency Plan, to identify those releases and threats of release of such oil and hazardous material that require notification to the Department, to set forth the time periods and procedures for notification, and to set forth provisions to allow limited removal of such oil and hazardous material under certain circumstances.

 

(2)   Nothing in 310 CMR 40.0300 shall relieve any person described in M.G.L. c. 21E, § 5(a)(1) through (5) from any liability which that person would otherwise possess in connection with a release or threat of release of any oil or hazardous material that is listed at 310 CMR 40.1600, identified by characteristic in 310 CMR 40.0347 or  otherwise meets either the definition of oil or the definition of hazardous material, which are set forth in 310 CMR 40.0006.

 

(3)   The Department may take response actions, seek any reimbursement or compensation to which the Commonwealth is entitled, and/or pursue enforcement actions in connection with any release or threat of release of oil and/or hazardous material, provided, however, that the Department shall not seek penalties for failure to provide notification to the Department of any release or threat of release:

(a)   unless notification is required pursuant to the provisions of 310 CMR 40.0300, or

(b)   for which notification is exempted pursuant to  the provisions of 310 CMR 40.0317.

 

40.0302:   Applicability

 

(1)   The provisions of 310 CMR 40.0300 shall apply to all releases and threats of release of oil and/or hazardous material to the environment, except as set forth in 310 CMR 40.0302(2).

 

(2)   The notification requirements set forth in 310 CMR 40.0300 shall only apply to:

(a)   releases and threats of release that commence on or after October 1, 1993; and

(b)   releases and threats of release of which knowledge is possessed or obtained on or after October 1, 1993, by any person listed at 310 CMR 40.0331.

      Notwithstanding any other provision hereof, the applicable "2 Hour", "72 Hour" and "120 Day" notification time periods  which arise solely as a result of 310 CMR 40.0300 shall commence no earlier than October 1, 1993.

 

40.0303:   Role of Licensed Site Professional

 

      Persons required to provide oral and/or written notification to the Department of releases and threats of release of oil and/or hazardous material to the environment pursuant to the provisions of 310 CMR 40.0300 may wish to retain the services of competent individuals, time permitting, or as circumstances require, to investigate, evaluate, and/or otherwise facilitate the fulfillment of that requirement, but shall not be obligated to use a Licensed Site Professional for that purpose.

40.0310:   Releases and Threats of Release Which Require Notification

 

40.0311:   Releases Which Require Notification Within Two Hours

 

      Except as provided in 310 CMR 40.0317 or 40.0332(1) or (7), persons required to notify under 310 CMR 40.0331 shall notify the Department as soon as possible but not more than two hours after obtaining knowledge that a release meets one or more of the following sets of criteria: 

 

(1)   a sudden, continuous or intermittent release to the environment of any hazardous material that is listed at 310 CMR 40.1600 or that exhibits one or more of the characteristics described in 310 CMR 40.0347, when:

(a)   the quantity of the release is equal to or greater than the applicable Reportable Quantity specified at 310 CMR 40.0352 or 40.1600; and

(b)   it is likely that the release occurred within any period of 24 consecutive hours or less;

 

(2)   a sudden, continuous or intermittent release to the environment of any hazardous material that is listed at 310 CMR 40.1600 or that exhibits one or more of the characteristics described in 310 CMR 40.0347, when:

(a)   the quantity of the release is unknown;

(b)   it is likely that the quantity of the release is equal to or greater than the applicable Reportable Quantity specified at 310 CMR 40.0352 or 40.1600; and

(c)   it is likely that the release occurred within any period of 24 consecutive hours or less;

 

(3)   a sudden, continuous or intermittent release to the environment of oil that is listed at 310 CMR 40.1600 when:

(a)   the quantity of the release is equal to or greater than the applicable Reportable Quantity specified at 310 CMR 40.0351 or 40.1600; and

(b)   it is likely that the release occurred within any period of 24 consecutive hours or less;

 

(4)   a sudden, continuous or intermittent release to the environment of oil that is listed at 310 CMR 40.1600, when:

(a)   the quantity of the release is unknown;

(b)   it is likely that the quantity of the release is equal to or greater than the applicable Reportable Quantity specified at 310 CMR 40.1600; and

(c)   it is likely that the release occurred within any period of 24 consecutive hours or less;

 

(5)   a sudden, continuous or intermittent release to the environment of any quantity of oil or waste oil that is listed at 310 CMR 40.1600 that results in the appearance of a sheen on surface water;

 

(6)   a release to the environment indicated by the measurement of oil and/or hazardous material in a private drinking water supply well at concentrations equal to or greater than a Category RCGW-1 Reportable Concentration, as described in 310 CMR 40.0360 through 40.0369 and listed at 310 CMR 40.1600;

 

(7)   any release of any oil and/or hazardous material, in any quantity or concentration, that poses or could pose an Imminent Hazard, as described in 310 CMR 40.0321 and 40.0950;

 

(8)   any release of oil and/or hazardous material described in 310 CMR 40.0311(1) through (4) or 40.0311(7) that is indirectly discharged to the environment by means of discharge to a stormwater drainage system;

 

(9)   any release of oil and/or hazardous material described in 310 CMR 40.0311(7) that is indirectly discharged into the environment by means of discharge to a sanitary sewerage system.

 

40.0312:   Threats of Release Which Require Notification Within Two Hours

 

      Except as provided in 310 CMR 40.0317 or 40.0332(1) or (7), persons required to notify under 310 CMR 40.0331 shall notify the Department as soon as possible but not more than two hours after obtaining knowledge that a threat of release meets one or more of the following sets of criteria:

 

(1)   a threat of release to the environment of oil and/or hazardous material that is listed at 310 CMR 40.1600 or that exhibits one or more of the characteristics described in 310 CMR 40.0347, when:

(a)   it is likely that the release threatened is about to occur; and

(b)   it is likely that the quantity of the release, if it occurred, would be equal to or greater than the applicable Reportable Quantity specified at 310 CMR 40.0351, 40.0352 or 40.1600; or

 

(2)   a threat of release to the environment of oil and/or hazardous material that is listed at 310 CMR 40.1600 or that exhibits one or more of the characteristics described in 310 CMR 40.0347, which poses or could pose an Imminent Hazard, as described in 310 CMR 40.0321, irrespective of the quantity likely to be released.

 

40.0313:   Releases Which Require Notification Within 72 Hours

 

      Except as provided in 310 CMR 40.0317 or 40.0332(7), persons required to notify under 310 CMR 40.0331 shall notify the Department not more than 72 hours after obtaining knowledge that a release of oil and/or hazardous material(s) meets one or more of the following sets of criteria:

 

(1)   a release to the environment indicated by the presence of  Nonaqueous Phase Liquid (NAPL) in a groundwater monitoring well, excavation, or subsurface structure in which NAPL has come to be located at a measured thickness equal to or greater than ½ inch (0.04 feet) at a location greater than 30 feet from School, Daycare or Child Care Center or occupied Residential Dwelling;

 

(2)   a release to the environment indicated by the presence of oil and/or hazardous material within ten feet of the exterior wall of an underground storage tank, as established by measurement of equal to or greater than 100 parts-per-million (ppm) by volume of total organic vapors "as benzene" in the headspace of a soil or groundwater sample  using a headspace screening method, and where such sample was obtained:

(a)   greater than two feet below the ground surface; and

(b)   as part of a closure assessment required pursuant to 527 CMR 9.00:  Tanks and Containers and 40 CFR Parts 280 and 281, or in connection with the removal or closure of an underground storage tank otherwise regulated by M.G.L. c. 148 or 527 CMR 9.00:  Tanks and Containers;

 

(3)   a release to the environment indicated by the measurement of oil and/or hazardous material in the groundwater at concentrations equal to or greater than a Category RCGW-1 Reportable Concentration, as described in 310 CMR 40.0360 through 40.0369 and listed at 310 CMR 40.1600, within:

(a)   the Zone I of a public water supply well; or

(b)   500 feet of a private water supply well; or

 

(4)   a Condition of Substantial Release Migration, where such condition is associated with a release for which notification otherwise is or has at any time in the past been required in accordance with 310 CMR 40.0300.  A Condition of Substantial Release Migration means a condition at a disposal site that includes any of the following:

(a)   releases that have resulted in the discharge of separate-phase oil and/or separate-phase hazardous material to surface waters, buildings, or underground utilities or conduits;

(b)   releases to the ground surface or to the vadose zone that, if not promptly removed or contained, are likely to significantly impact the underlying groundwater, or significantly exacerbate an existing condition of groundwater pollution;

(c)   releases to the groundwater that have migrated or are expected to migrate more than 200 feet per year;

(d)   releases to the groundwater that have been or are within one year likely to be detected in a public or private water supply well;

(e)   releases to the groundwater that have been or are within one year likely to be detected in a surface water body, wetland, or public water supply reservoir; or

(f)   releases to the groundwater or to the vadose zone that have resulted or have the potential to result in the discharge of vapors into a School, Daycare or Child Care Center or occupied Residential Dwelling. Conditions that indicate a potential discharge of vapors into a School, Daycare or Child Care Center or occupied Residential Dwelling include, but are not limited to:

1.   soil or soil gas impacted with one or more volatile organic compounds within six feet, measured horizontally from the wall of the structure, and within ten feet measured vertically from the basement floor or foundation at concentrations that are likely to discharge vapors into the structure;

2.   one or more volatile organic compound in the groundwater exceed the applicable Groundwater Category GW-2 Standard within 30 feet of the structure, and the average annual depth to groundwater in that area is 15 feet or less;

3.   volatile light non-aqueous phase liquid (LNAPL) is present in a groundwater monitoring well, excavation, or subsurface depression within 30 feet of the structure at a measured thickness  equal to or greater than 1/8 inch (0.01 feet); or

4.   evidence of vapor migration along preferential pathways at a location that is likely to result in the discharge of vapors into the structure. 

 

40.0314:   Threats of Release Which Require Notification Within 72 Hours

 

      Except as provided in 310 CMR 40.0317, persons required to notify under 310 CMR 40.0331 shall notify the Department not more than 72 hours after obtaining knowledge of a threat of release of oil and/or hazardous material to the environment from an Underground Storage Tank, as established by a test conducted in conformance with the methodology prescribed for that test which indicates there is a substantial likelihood of a leak equal to or greater than 0.05 gallons per hour:

 

(1)   in a single walled Underground Storage Tank;

 

(2)   in the inner wall of a double-walled Underground Storage Tank; or

 

(3)   in the outer wall of a double-walled Underground Storage Tank.

 

40.0315:   Releases Which Require Notification Within 120 Days

 

      Except as provided in 310 CMR 40.0317 or 40.0318, persons required to notify under 310 CMR 40.0331 shall notify the Department not more than 120 days after obtaining knowledge that a release meets one or more of the following sets of criteria:

 

(1)   a release to the environment indicated by the measurement of one or more hazardous materials in soil or groundwater in an amount equal to or greater than the applicable Reportable Concentration described in 310 CMR 40.0360 through 40.0369 and listed at 310 CMR 40.1600;

 

(2)   a release to the environment indicated by the measurement of oil and/or waste oil in soil in an amount equal to or greater than the applicable Reportable Concentration described in 310 CMR 40.0360 through 40.0369 and listed at 40.1600, where the total contiguous volume of the oil and/or waste oil contaminated soil is equal to or greater than two cubic yards;

 

(3)   a release to the environment indicated by the measurement of oil in groundwater in an amount equal to or greater than the applicable Reportable Concentration described in 310 CMR 40.0360 through 40.0369 and listed at 310 CMR 40.01600; or

 

(4)   a release to the environment indicated by the presence of a subsurface Nonaqueous Phase Liquid (NAPL) in a groundwater monitoring well, excavation, or other subsurface structure in which NAPL has come to be located at a measured thickness equal to or greater than c inch (0.01 feet) and less than ½ inch (0.04 feet).

 

40.0317:   Releases and Threats of Release Which Do Not Require Notification

 

      Notwithstanding the provisions of 310 CMR 40.0311 through 40.0315, the following releases and threats of release of oil and/or hazardous material are exempt from the notification requirements set forth in 310 CMR 40.0300:

 

(1)   releases of oil that occur during normal handling and transfer operations at an oil facility, if the releases are completely captured by a properly functioning oil/water separator; provided, however, that releases of oil which exceed the capacity of the oil/water separator, and that releases of oil from the oil/water separator, itself, in excess of its discharge permit limits, shall be subject to the notification requirements set forth in 310 CMR 40.0300;

 

(2)   releases or threats of release of gasoline or diesel fuel that result from the rupture of the fuel tank of a passenger vehicle as a result of an accident involving that  vehicle;

 

(3)   releases of oil and/or hazardous material that are discharged or emitted from an outfall, stack or other point source, or as fugitive emissions, any of which are regulated under and have received a valid permit, license, or approval, or which are operating under a valid registration, order or guideline issued under a federal or state statute or regulation, unless the release:

(a)   exceeds the amount allowed by the permit, license, approval, registration, order or guideline; and

(b)   represents an Imminent Hazard to  health, safety, public welfare or the environment.  This provision shall not relieve any person from any other duty to notify which may exist under any other statute or regulation, nor shall it in any way limit the authority of any other agency, political subdivision or authority of the federal or state government or of any office or division of the Department to enforce or otherwise carry out the duties assigned to it by law;

 

(4)   releases of radionuclides regulated by EPA under 42 USC § 9602, 33 USC §§ 1321 and 1361, and 40 CFR Part 302 et seq.;

 

(5)   releases of forbidden, Class A or Class B explosives, as defined in 49 CFR §§ 173.50, 173.53 and 173.88 respectively, if the explosives are under military transport or supervision and the U.S. Army Explosive Ordnance responds to the release;

 

(6)   releases of methane, propane, and other component compounds associated with a release of natural gas, natural gas liquids and liquified natural gas;

 

(7)   sheens:

(a)   resulting from emissions or discharges from outboard motors in recreational use; or

(b)   associated with normal surface water runoff from roadways, driveways, and parking lots;

 

(8)   releases of hazardous material indicated by residues in the environment:

(a)   emanating from a point of original application of lead-based paint;

(b)   resulting from emissions from the exhaust of an engine; or

(c)   resulting from the application of pesticides in a manner consistent with their labelling;

 

(9)   releases of oil and/or hazardous material related to coal, coal ash, or wood ash, excluding wood ash resulting from the combustion of lumber or wood products that have been treated with chemical preservatives; 

 

(10)   releases of oil and/or hazardous material resulting from the land application, reuse, or disposal of wastewater residuals and/or dredged spoils conducted in accordance with an approval, permit or certification issued by the Department under the authority of 310 CMR 32.00:  Land Application of Sludge and Septage, 314 CMR 9.00:  401 Water Quality Certification for Discharge of Dredged or Fill Material, Dredging, and Dredged Material Disposal in Waters of the United States Within the Commonwealth, M.G.L. c. 21, §§ 26 through 53, M.G.L. c. 111, § 17, M.G.L. c. 83, § 6 and 7 and c. 21A, § 14 and any regulations promulgated thereunder;

 

(11)   releases of oil and/or hazardous material in groundwater detected by sampling conducted by Public Water Supply owners or operators under 310 CMR 22.00:  Drinking Water as indicated by the presence of oil and/or hazardous material in a public water supply  source; 

 

(12)   releases of oil and/or hazardous material resulting or emanating from:

(a)   the asphalt binder in bituminous pavement;

(b)   piers, pilings and building foundation structures;

(c)   landscaping timbers in use;

(d)   utility poles in use; or

(e)   building materials that are in good repair and still serving their original intended use;

 

(13)   releases indicated solely by the presence of oil and/or hazardous material in soils that are treated, recycled, reused or disposed of at a facility licensed, permitted or approved by the Department, provided that:

(a)   the soil has been excavated and transported from a disposal site in compliance with 310 CMR 40.0000; and

(b)   the facility is operated in a manner consistent with the terms and conditions of its license, permit or approval;

 

(14)   releases of oil and/or hazardous material that require notification solely because an RP, PRP or Other Person obtains knowledge of media concentrations and/or site conditions that meet one or more of the sets of criteria set forth in 310 CMR 40.0311 through 40.0315, when such  media concentration value(s) and/or knowledge of site conditions resulted from a sampling, analytical or observational error, as established by a preponderance of the evidence and/or as verified by additional sampling, analyses, and/or observation, within the applicable time period for notification;

 

(15)   releases of oil and/or hazardous material that require notification solely because an RP, PRP or Other Person obtains knowledge of soil concentrations equal to or greater than one or more applicable Reportable Concentrations, as specified in 310 CMR 40.0315, where a Limited Removal Action conducted under the provisions of 310 CMR 40.0318 has reduced soil concentrations of oil and/or hazardous material at the disposal site to an amount less than the Reportable Concentration(s), within the allowable time period for notification;

 

(16)   releases indicated by the presence of oil and/or hazardous material in concentrations or quantities which would otherwise meet one or more of the sets of criteria set forth in 310 CMR 40.0313 through 310 CMR 40.0315 at a disposal site where:

(a)   a response action is being undertaken in compliance with the provisions of 310 CMR 40.0000 to address such release;

(b)   a release notification was previously provided to the Department for the disposal site on which the release has been observed or documented; and

(c)   such presence of oil and/or hazardous material is consistent with the types, nature, exposure potential and quantities of oil and/or hazardous material for which that notification was provided to the Department;

 

(17)   releases indicated by the presence of oil and/or hazardous material at disposal sites for which a determination or statement as specified in 310 CMR 40.0317(17)(a) through (f) has been provided, in concentrations that would otherwise meet one or more of the sets of criteria set forth in 310 CMR 40.0313 or 40.0315, unless the presence of such oil and/or hazardous material would negate or change such determinations or statements were that presence taken into account in the preparation thereof, or changes in activities, uses, and/or exposures at the disposal site require notification to the Department pursuant to the provisions of 310 CMR 40.0020.  In this context, determinations or statements include:

(a)   a disposal site where a Permanent Solution Statement has been submitted to the Department in compliance with the provisions of 310 CMR 40.1000;

(b)   a disposal site where a Class A or Class B Response Action Outcome Statement has been submitted to the Department in compliance with the provisions of 310 CMR 40.1000;

(c)   a disposal site where a No Further Action Letter has been submitted to the Department in compliance with the provisions of 310 CMR 40.0600;

(d)   a disposal site where the Department has made a written determination that no further actions are required;

 

 

(e)   a disposal site where an LSP Evaluation Opinion has been submitted to the Department in compliance with 310 CMR 40.0600 stating either that the site is not a disposal site for which notification is required pursuant to 310 CMR 40.0300 and no further response actions are required or that completed response actions meet the requirements of a Response Action Outcome; or

(f)   a disposal site where a Waiver Completion Statement has been submitted to the Department in compliance with the provisions of 310 CMR 40.537 and/or 40.0630.

 

(18)   threats of release indicated by the outcome of tank tests specified in 310 CMR 40.0314, where a tank test outcome has resulted from a testing error, as documented within the allowable time period for notification by an additional test conducted on identical and unrepaired underground storage tank system elements;

 

(19)   releases of oil and/or hazardous material to:

(a)   an underground utility vault if such releases are completely contained within the vault; or

(b)   the interior of a building, provided such releases are completely contained within the building;  

 

(20)    releases of chloroform in groundwater attributable to naturally-occurring ecological processes and/or leakage or discharges from a public water supply system;

 

(21)   releases of oil or waste oil of less than a Reportable Quantity that result in a sheen on a surface water, provided that:

(a)   federal officials receive notice of such release pursuant to the Federal Water Pollution Control Act as amended;

(b)   a response occurs as directed by those federal officials and according to other federal, state or local requirements applicable to such a release and response;

(c)   the sheen does not persist for more than 24 consecutive hours; and

(d)   the sheen does not recur at the same location within any 30 day period; and

 

(22)   arsenic, beryllium or nickel in Boston Blue Clay or arsenic in an area documented by the U.S. Geological Survey or in other scientific literature as an area of elevated arsenic measured in soil or groundwater that

(a)   is consistently present in the environment at and in the vicinity of the sampling location;

(b)   is solely attributable to natural geologic or ecologic conditions; and

(c)   has not been mobilized or transferred to another environmental medium or increased in concentration in an environmental medium as a result of anthropogenic activities.

 

(23)   releases of propane, provided that such releases are managed according to the Massachusetts Division of Fire Services gas leak Emergency and Reporting Procedure in 527 CMR 6.00:  Liquefied Petroleum Gas Containers and Systems.

 

40.0318:   Limited Removal Actions

 

(1)   Limited Removal Actions may be undertaken by RPs, PRPs or Other Persons prior to notification to the Department of those "120 Day Notification" releases described in 310 CMR 40.0315.

 

(2)   Limited Removal Actions shall not be initiated or continued:

(a)   after obtaining knowledge that a release or threat of release requires notification under the "2 Hour" or "72 Hour" notification provisions of 310 CMR 40.0311 through 40.0314, whether or not notification has been made to the Department; or

(b)   following notification to the Department by any person listed at 310 CMR 40.0331 of any release or threat of release of oil and/or hazardous material at the disposal site which requires notification under 310 CMR 40.0315. 

 

(3)   RPs, PRPs or Other Persons who undertake Limited Removal Actions shall conform to the Response Action Performance Standard  specified in 310 CMR 40.0191.

 

(4)   Limited Removal Actions shall be restricted to the excavation and off-site recycling, reuse, treatment, and/or disposal of not more than the following cumulative volumes  of soil removed from a disposal site with measured concentrations of oil or hazardous material equal to or greater than an applicable Reportable Concentration:

(a)   not more than 100 cubic yards of soil contaminated solely by a release of oil, oil blends containing fuel oil additives registered in accordance with the regulations at 40 CFR 79, or waste oil; and

(b)   not more than 20 cubic yards of soil contaminated by a release of hazardous material or a mixture of oil or waste oil and hazardous material.

 

(5)   All excavation activities conducted by an RP, PRP or Other Person as a Limited Removal Action shall occur within 120 days of obtaining knowledge of a release described in 310 CMR 40.0315. 

 

(6)   All contaminated soil generated as a result of a Limited Removal Action shall be stockpiled, stored, characterized, transported, and recycled, reused, treated, or disposed of as set forth in 310 CMR 40.0030. 

 

(7)   Records documenting:

(a)   the concentrations of oil and/or hazardous material in soil at the disposal site following a Limited Removal Action; and

(b)   the chemical characterization and volume of soil removed from a disposal site as part of a Limited Removal Action, shall be maintained by the RP, PRP or Other Person undertaking the Limited Removal Action for a minimum of five years or for so long as is required under 310 CMR 40.0014, whichever is longer.

 

(8)   Limited Removal Actions conducted in compliance with the provisions of 310 CMR 40.0318 shall not require oversight by a Licensed Site Professional, except for Limited Removal Actions that involve the use of the Bill of Lading soil management process described in 310 CMR 40.0030.

 

(9)   In those cases where volumes of contaminated soil encountered unexpectedly exceed initial estimates and the volumetric excavation limits specified in 310 CMR 40.0318(4), persons required to notify under 310 CMR 30.0331 shall notify the Department of the release at the disposal site within the allowable time period for notification, and the person conducting the Limited Removal Action shall either:

(a)   cease remedial actions; or

(b)  continue removal actions at the disposal site as a Release Abatement Measure, as specified in 310 CMR 40.0443.

 

40.0320:   Releases and Threats of Release that Pose Imminent Hazards

 

40.0321:   Reporting of Releases and Threats of Release that Pose or Could Pose an Imminent Hazard

 

(1)   For the purpose of fulfilling the "Two Hour" release notification obligations of 310 CMR 40.0311(7), the following releases shall be deemed to pose an Imminent Hazard to health, safety, public welfare and/or the environment:

(a)   a release to the environment which  results in the presence of oil and/or hazardous material vapors within buildings, structures, or underground utility conduits at a concentration equal to or greater than 10% of the Lower Explosive Limit;

(b)   a release to the environment of reactive or explosive hazardous material, as described in 310 CMR 40.0347, which  threatens human health or safety;

(c)   a release to a roadway that endangers public safety; 

(d)   a release to the environment of oil and/or hazardous material which  poses a significant risk to human health when present for even a short period of time, as specified in 310 CMR 40.0950;

(e)   a release to the environment of oil and/or hazardous material which  produces immediate or acute adverse impacts to freshwater or saltwater fish populations; or

(f)   a release to the environment which produces readily apparent effects to human health, including respiratory distress or dermal irritation.

 

(2)   For the purpose of fulfilling the "Two Hour" release notification obligations of 310 CMR 40.0311(7), the following releases could pose an Imminent Hazard to human health:

(a)   a release to the environment indicated by the measurement of oil and/or hazardous material in a private drinking water supply well at a concentration equal to or greater than ten times the Category RCGW-1 Reportable Concentration, as described in 310 CMR 40.0360 through 40.0369 and listed at 310 CMR 40.1600; or

(b)   a release to the environment indicated by the measurement of concentrations of hazardous material, equal to or greater than any of the following concentrations at the ground surface or within a depth of twelve inches below the ground surface, at any location within 500 feet of a residential dwelling, school, playground, recreation area or park, unless access by children is controlled or prevented by means of bituminous pavement, concrete, fence, or other physical barrier

Hazardous Material                                                                              CAS number             Concentration

            (ug/g dry wt)

                                    Arsenic (total)                                                       7440382                           40

                                    Cadmium (total)                                                    7440439                           60

                                    Chromium (VI) (or Total Chromium

                                        in the absence of CrVI data)                            18540299                         200

                                    Cyanide (available)                                                    57125                         100

                                    Mercury (total)                                                      7439976                         300

                                    Methyl Mercury                                                  22967926                           10

                                    PCB (total)                                                           1336363                           10

                    or

(c)   a release to the environment for which estimated long-term risk levels associated with current exposures are greater than ten times the Cumulative Receptor Risk Limits in 310 CMR 40.0993(6).  Past exposures may be included in such evaluations to the extent that it is reasonable to quantify those exposures.

 

(3)   For the purpose of fulfilling the notification obligations of 310 CMR 40.0312(2), threats of release which pose or could pose an Imminent Hazard to health, safety, public welfare and/or the environment shall consist of any threat of release where, if the release were to occur, it is likely that that release would meet any of the criteria described in 310 CMR 40.0321(1) or (2).

 

(4)   Notwithstanding the provisions of 310 CMR 40.0321(2) and 40.0321(3), a person required to notify under 310 CMR 40.0331 may demonstrate to the Department by a preponderance of the evidence that release or site conditions specified in 310 CMR 40.0321(2) and/or (3) do not constitute an actual Imminent Hazard to human health, in conformance with the Imminent Hazard Evaluation process described in 310 CMR 40.0426, and in consideration of the  site-specific factors and the risk assessment and risk management criteria contained in 310 CMR 40.0950. No such demonstration, however, shall relieve any person of the obligation to notify the Department of a release or threat of release under the provisions of 310 CMR 40.0311 or 40.0312.

 

(5)   No provision contained in 310 CMR 40.0321 shall limit the Department's authority to determine that an Imminent Hazard exists at any site, consistent with the provisions of 310 CMR 40.0950, nor shall any such provision limit the Department's authority to undertake response actions, seek any reimbursement or compensation due to the Commonwealth, or pursue enforcement actions in accordance with any such determination.

 

40.0322:   Response Actions to Prevent or Abate Imminent Hazards

 

(1)   An Immediate Response Action, as described in 310 CMR 40.0400, shall be taken to prevent, eliminate, or abate all Imminent Hazards.

 

 (2)   Immediate Response Actions shall not be delayed or deferred at sites where continued inaction would likely result in the development of an Imminent Hazard condition.

 

40.0330:   Notification Requirements and Procedures

 

40.0331:   Who Shall Notify

 

(1)   The following persons shall notify the Department in accordance with 310 CMR 40.0300 of a release or threat of release of oil or hazardous material:

(a)   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 and/or hazardous material;

(b)   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;

(c)   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;

(d)   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;

(e)   any person who otherwise caused or is legally responsible for a release or threat of release of oil and/or hazardous material from a site or vessel;

(f)   any fiduciary who holds title to or possession of a site or vessel from or at which there is or has been a release or threat of release of oil and/or hazardous material;

(g)   any secured lender who holds title to or possession of a site or vessel from or at which there is or has been a release or threat of release of oil and/or hazardous material;

(h)   any agency of the Commonwealth or any public utility company that owns a right of way that is a site from or at which there is or has been a release or threat of release of oil and/or hazardous material; and

(i)   any  person otherwise required to notify the Department of a release or threat of release pursuant to M.G.L. c. 21E.

 

(2)   If a release to the environment has occurred or a threat of release to the environment exists at any site or vessel and there is a substantial likelihood that such release or threat of release includes or would include oil and/or hazardous material which appears at 310 CMR 40.1600 or exhibits any of the characteristics described in 310 CMR 40.0347, then any owner, operator, or fiduciary or secured lender who holds title to or possession of such site or vessel, shall determine whether such is the case, and whether any such release or threat of release requires notification to the Department under 310 CMR 40.0300.

 

40.0332:   Timing of Notifications

 

(1)   Two Hour Notifications.  Notification to the Department of any release or threat of release specified in  310 CMR 40.0311 and 40.0312 shall be made as soon as possible but not more than two hours after obtaining knowledge that the release or threat of release meets one or more of the sets of notification criteria, unless the person responsible for notifying establishes, by a preponderance of the evidence, that extenuating circumstances prevented  notification within said two hour time period.  In that event, notification to the Department shall be made as soon as possible thereafter, taking into account the extenuating circumstances.  Extenuating circumstances shall include, without limitation, the following:

(a)   a lack of reasonably available communication equipment at the site of the release or threat of release;

(b)   a need to take actions prior to notification in order to mitigate or prevent an Imminent Hazard and/or threat to public safety; and/or

(c)   a physical injury to the person responsible for notifying caused by or associated with the release or threat of release, when the injury reasonably prevents that person from notifying. 

 

(2)   72 Hour Notifications.  Notification to the Department of any release or threat of release specified in 310 CMR 40.0313 and 40.0314 shall be made not more than 72 hours after obtaining knowledge that the release or threat of release meets one or more of the sets of notification  criteria. 

 

(3)   120 Day Notifications.  Notification to the Department of any release specified in 310 CMR 40.0315 shall be made not more than 120 days after obtaining knowledge that the release meets one or more of the sets of notification  criteria, and prior to the commencement of any remedial actions at the site, with the exception of Limited Removal Actions, as set forth in 310 CMR 40.0318.

 

(4)   If a release or threat of release is subject to more than one notification time period, the shorter time period  shall apply.

 

(5)   No provision of 310 CMR 40.0332 shall be construed to prevent a person responsible for notifying from implementing a response action necessary to mitigate or prevent an Imminent Hazard.

 

(6)   No provision of 310 CMR 40.0332 shall be construed to allow an unreasonable delay in notification of the Department after obtaining knowledge of a release or threat of release that meets one or more of the sets of notification criteria specified in 310 CMR 40.0311 or 40.0312.

 

(7)   The notification timelines specified in 310 CMR 40.0332 shall commence at the time that the person required to notify obtains knowledge, or at the time that a person who has knowledge obtains the status of a person required to notify, whichever is later.

 

40.0333:   How to Notify

 

(1)   Two Hour and Seventy-Two Hour Notifications.  Persons described in 310 CMR 40.0331(l) shall:

(a)   notify the Department of a release or threat of release specified in 310 CMR 40.0311 through 40.0314, by calling a telephone number published by the Department and designated for that purpose and orally providing to the Department the information specified in 310 CMR 40.0334; and

(b)   within 60 days thereafter, submit a completed Release Notification Form, as described in 310 CMR 40.0371, to the Department office located in the DEP region in which the release or threat of release occurred.  Where appropriate, the Release Notification Form may be accompanied by a Permanent or Temporary Solution Statement, as described in 310 CMR 40.1000.

 

(2)   120 Day Notifications.  Persons described in 310 CMR 40.0331(1) shall notify the Department of a release specified in 310 CMR 40.0315 by submitting a completed Release Notification Form, as described in 310 CMR 40.0371, to the Department office located in the DEP region in which the release occurred.  Where appropriate, the Release Notification Form may be accompanied by a Permanent or Temporary Solution Statement, as described in 310 CMR 40.1000.

 

40.0334:   Content of the Notification

 

      Oral notification to the Department pursuant to 310 CMR 40.0333(1)(a) shall consist of the following information to the extent known to the person responsible for providing the notification:

(a)   the name and telephone number of the caller;

(b)   the location of the release or threat of release, including, where applicable:

1.   the address [street name and number, city or town, and zip code]; and

2.   a narrative description of the location (e.g., location aid such as mile marker, business type/name);

(c)   the date and time the release occurred;

(d)   the set(s) of notification criteria that is the basis for notification;

(e)   the name of the oil and/or hazardous material(s) released or of which there is a threat of release;

(f)   the approximate quantity of the oil and/or hazardous material(s) which has been released or of which there is a threat of release;

(g)   the source of the release or threat of release;

(h)   a brief description of the release or threat of release;

(i)   the name and telephone number of the owner/operator of the site or vessel where the release has occurred or at which there is a threat of release;

(j)   the name and telephone number of a contact person at the site or vessel where the release has occurred or at which there is a threat of release;

(k)   a description of Immediate Response Actions taken or proposed to be taken in response to the release or threat of release, as specified in 310 CMR 40.0420;

(l)   the names of other federal, state or local government agencies that have been notified of and/or have responded to the release or threat of release; and

(m)   any other information, including without limitation, potential environmental impacts, that is relevant to assessing the degree of hazard posed by the release or threat of release.

 

40.0335:   Retracting a Notification

 

(1)   A notification of a release or threat of release of oil and/or hazardous material made by a person described in 310 CMR 40.0331(1) may be retracted in those cases where additional information obtained subsequent to such notification substantiates that:

(a)   in the case of a reported release, no release actually occurred;

(b)   in the case of a reported threat of release, conditions posing a threat of release did not actually exist; or

(c)   the subject release or threat of release did not meet one or more of the sets of notification criteria specified in 310 CMR 40.0300.  Retractions of this nature shall only be made by the person described at 310 CMR 40.0331(1) who originally provided notification to the Department of such release or threat of release, or, in cases where notification was made on behalf of a corporate entity, by another authorized employee or agent of that corporation.

 

(2)   All retractions pursuant to 310 CMR 40.0335 shall be in writing and shall include, at a minimum, the following:

(a)   the address of the location at which the release or threat of release was initially reported;

(b)   the Release Tracking Number assigned by the Department for the reported release or threat of release;

(c)   an explanation of the events and site conditions that resulted in the original notification;

(d)   a summation of facts, data, and/or other relevant information that demonstrates that the release did not actually occur or the conditions posing the threat of release did not actually exist, or that the release or threat of release did not meet one or more sets or reporting criteria; and

(e)   the signature of the person retracting the notification, attesting to the accuracy and completeness of the information contained in the retraction submittal, as specified at 310 CMR 40.0009.

 

(3)   Except as provided in 310 CMR 40.0335(7), all  retractions pursuant to 310 CMR 40.0335 must be received by the Department no later than 60 days after the person providing the retraction first notified the Department of the subject release or threat of release.

 

(4)   All retractions pursuant to 310 CMR 40.0335 shall be submitted to the Department using a transmittal form established by the Department for such purposes.

 

(5)   Submission of a notification retraction in conformance with the provisions of 310 CMR 40.0335 shall terminate all future response action requirements and submittals that would otherwise be necessitated by the reporting of said release or threat of release, unless written notice to the contrary is provided by the Department within 21 days of the Department's receipt of such retraction. 

 

(6)   Nothing in 310 CMR 40.0335 shall limit the Department's authority to initiate, oversee, or order the performance of any response action deemed necessary by the Department to protect health, safety, public welfare, or the environment.

 

(7)   The deadline for retracting notifications established by 310 CMR 40.0335(3) shall be extended to the date that is 90 days after the effective date of the first revision to the definition of the term "Potentially Productive Aquifer" in 310 CMR 40.0006 and to 310 CMR 40.0932(5)(b) promulgated after December 15, 1995, provided that the following conditions are met:

(a)   the groundwater at such disposal site at the time of notification is defined as Category RCGW-1 solely pursuant to 310 CMR 40.0362(1)(a)3. (i.e., such groundwater is defined as RCGW-1 solely because the groundwater is within a Potentially Productive Aquifer); and/or

(b)   the soil is defined as Category RCS-1 solely pursuant to 310 CMR 40.0361(1)(a)2. (i.e., the soil is defined as RCS-1 solely due to its location above groundwater that meets the requirements of 310 CMR 40.0362(1)(a), and such groundwater is defined as Category RCGW-1 solely pursuant to the requirements of 310 CMR 40.0362(1)(a)3.).

 

40.0336:   Notification Requirements for Persons that Receive a Notice of Responsibility

 

(1)   Except as provided in 310 CMR 40.0336(2), persons who have not previously notified the Department of a release or threat of release in accordance with 310 CMR 40.0300, and who receive a Notice of Responsibility from the Department requiring submittal of a Release Notification Form for a release or threat of release, shall submit such Release Notification Form to the appropriate Department Regional Office within 60 days of receipt of such Notice of Responsibility.

 

(2)   Persons who received a Notice of Responsibility pursuant to 310 CMR 40.0336(1) who believe:

(a)   they are not a person described at 310 CMR 40.0331(1);

(b)   a release of oil or hazardous material did not actually occur;

(c)   conditions posing a threat or release did not actually exist; or

(d)   a release or threat of release which did occur did not meet one or more sets of notification criteria set forth in 310 CMR 40.0300, shall submit notice of the same to the Department within 60 days of receipt of such Notice of Responsibility.

 

40.0340:   Identification of Oil and Hazardous Material

 

40.0341:   Purpose and Scope

 

      310 CMR 40.0340 through 40.0347, cited collectively as 40.0340:

 

(1)   identify and otherwise describe those oils and hazardous materials which are subject to 310 CMR 40.0000;

 

(2)   set forth the criteria used by the Department to list certain oils and hazardous materials at 310 CMR 40.1600 and to identify the characteristics of unlisted hazardous materials as set forth in 310 CMR 40.0347; and

 

(3)   set forth the procedures for adding and deleting oil or hazardous material to or from 310 CMR 40.1600.

 

40.0342:   Methods of Identification of Oil and Hazardous Material

 

(1)   The Department employs three methods to identify or otherwise describe those oils and hazardous materials which are subject to M.G.L. c. 21E and 310 CMR 40.0000.  These methods are:

(a)   identification of those substances which meet the definitions of oil or hazardous material set forth in  310 CMR 40.0006;

(b)   listing of specific oils and hazardous materials; and

(c)   identification of the characteristics of a material which make it hazardous.

 

(2)   Accordingly, a substance is an oil or hazardous material if:

(a)   the substance meets any of the definitions of oil or hazardous material set forth in 310 CMR 40.0006;

(b)   the substance is listed at 310 CMR 40.1600; or

(c)   the substance exhibits any of the characteristics of a hazardous material identified in 310 CMR 40.0347(1) through (5).

 

40.0343:   Criteria for Listing Oil and Hazardous Material

 

      In determining whether to list a substance as an oil or hazardous material, the Department shall consider whether or not the substance meets the statutory definition of oil or hazardous material.  This determination by the Department shall include, but not be limited to, a consideration of the following factors:

 

(1)   whether or not other state or federal agencies with expertise in the regulation and management of such substances have identified or characterized that substance as hazardous to health, safety, public welfare, or to the environment;

 

(2)   the extent to which the substance exhibits the characteristics of acute toxicity, chronic toxicity, carcinogenicity, mutagenicity, ignitability, corrosivity, reactivity, infectivity or radioactivity; and

 

(3)   any substantial and relevant scientific data submitted by any person in support of adding any substance to or deleting any substance from 310 CMR 40.1600.

 

40.0344:   Adding and Deleting Substances to or from the Massachusetts Oil and Hazardous Material List

 

(1)   The Department shall review the Massachusetts Oil and Hazardous Material List, which appears at 310 CMR 40.1600, at least once every five years for the purposes of adding or deleting oil and/or hazardous material.

 

(2)   Substances may be added to or deleted from 310 CMR 40.1600 at any time in accordance with the following procedures:

(a)   The Department may, in accordance with the procedures set forth in M.G.L. c. 30A and other applicable laws for adopting, amending or repealing regulations:

1.   add substances to 310 CMR 40.1600 that meet any of the criteria set forth in 310 CMR 40.0343; or

2.   delete substances from 310 CMR 40.1600 that do not meet the criteria set forth in 310 CMR 40.0343.

(b)   Any person may petition the Commissioner to add a substance to or delete a substance from 310 CMR 40.1600.  Any such petition shall include scientific evidence that a material does or does not meet the criteria set forth in 310 CMR 40.0343.

 

(3)   Any substance that is added to or deleted from either the CERCLA List of Hazardous Substances set out at 40 CFR Part 302.4 or the List of Extremely Hazardous Substances set out at 40 CFR Part 355, Appendix A after the date of promulgation of 310 CMR 40.0300 shall be evaluated by the Department pursuant to the criteria set forth in 310 CMR 40.0343 to determine if that substance should be added to or deleted from 310 CMR 40.1600.

 

40.0345:   The Massachusetts Oil and Hazardous Material List

 

      The oils and hazardous materials listed at 310 CMR 40.1600 are subject to the requirements of 310 CMR 40.0000 unless specifically excluded from regulation thereunder.  The Reportable Quantities and Reportable Concentrations which appear beside listed oils and hazardous materials  represent those levels which, upon their release or threat of release, invoke the notification requirements of 310 CMR 40.0300.

40.0346:   Criteria for Determining the Characteristics of Hazardous Material

 

      In determining whether a substance should be identified as a hazardous material by characteristic, the Department shall first determine that the characteristic can be either:

 

(1)   measured by an available standardized test method that is within the capability of independent laboratories that are available to the public; or

 

(2)   reasonably detected by persons handling hazardous material through their knowledge of those materials.

 

40.0347:   Characteristics of Hazardous Material

 

      310 CMR 40.0347 describes the characteristics of materials that are hazardous materials but that may not be listed at 310 CMR 40.1600.  Any material that exhibits one or more of the following characteristics is subject to 310 CMR 40.0000, unless it is specifically excluded from regulation thereunder.

 

(1)   Ignitability:

(a)   A substance is a hazardous material if a representative sample exhibits any of the following properties:

1.   it is a liquid and has a flash point of less than 60EC [approximately 140EF].  However, an aqueous solution of ethyl alcohol which contains less than 24% alcohol by volume is not considered ignitable under 310 CMR 40.0000;

2.   it is not a liquid and is capable under standard temperature and pressure of catching fire through friction, absorption of moisture or spontaneous chemical changes and, when ignited, burns so vigorously and persistently that it creates a hazard;

3.   it is a compressed gas and ignitable; or

4.   it is an oxidizer;

(b)   The flash point of liquids shall be determined by any of the following methods:

1.   a Pensky-Martens Closed Cup Tester, using the test method specified in "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods";

2.   a Setaflash Closed Cup Tester, using the test method specified in  310 CMR 30.152(1)(a); or

3.   an equivalent test method approved by the Department;

(c)   Compressed gas shall be characterized as ignitable if any of the following occurs when the gas is subjected to any of the following tests:

1.   either a mixture of 13% or less (by volume) with air forms a flammable mixture or the flammable range is wider than 12% regardless of the lower limit.  These limits shall be determined at atmospheric temperature and pressure using sampling methods and test procedures acceptable to the U.S. Bureau of Explosives;

2.   using the Flame Projection Apparatus of the U.S. Bureau of Explosives, the flame projects more than 18 inches beyond the ignition source with the valve opened fully, or the flame flashes back and burns at the valve with any degree of valve opening;

3.   using the Open Drum Apparatus of the U.S. Bureau of Explosives, there is any significant propagation of flame away from the ignition source; or

4.   using the Closed Drum Apparatus of the U.S. Bureau of Explosives, there is any explosion of the vapor-air mixture in the drum.

 

(2)   Corrosivity:

(a)   A material is a hazardous material if a representative sample exhibits any of the following properties:

1.   it is aqueous and has a pH equal to or less than 2.0 or equal to or greater than 12.5;

2.   it is a liquid and corrodes steel (Type SAE 1020) at a rate greater than 6.35 mm per year at a test temperature of 55EC; or

3.   it is a liquid or solid that causes visible destruction or irreversible alterations in mammalian skin tissue at the site of contact.

(b)   pH shall be determined by a pH meter using either method 5.2 in the "Test Methods for the Evaluation of Solid Waste, Physical/Chemical Methods" or by an equivalent test method approved by the Department.

(c)   The rate of corrosion of steel shall be determined by the test method specified by the National Association of Corrosion Engineers, standard TM-01-60, as standardized in "Test Methods for the Evaluation of Solid Waste, Physical/Chemical Methods" or by an equivalent test method approved by the Administrator of EPA or by the Department.

 

(3)   Reactivity.  A material is a hazardous material if a representative sample exhibits any of the following properties:

(a)   it is normally unstable and readily undergoes violent changes without detonating;

(b)   it reacts violently with water;

(c)   it forms potentially explosive mixtures with water;

(d)   when mixed with water, it generates toxic gases, vapors or fumes in a quantity sufficient to present a danger to health, safety, public welfare, or the environment;

(e)   it is a cyanide or sulfide-bearing material which, when exposed to a pH of between 2.0 and 12.5, can generate toxic gases, vapors or fumes in a quantity sufficient to present a danger to health, safety, public welfare, or the environment;

(f)   it is capable of detonation or explosive reaction if it is subjected to a strong initiating source or if heated under confinement;

(g)   it is readily capable of detonation or explosive decomposition or reaction at a standard temperature and pressure; or

(h)   it is a forbidden explosive, a Class A or Class B explosive, as defined in 49 CFR §§ 173.50, 173.53 and 173.88, respectively.

 

(4)   Toxicity.  A material is a hazardous material if it exhibits the characteristic of toxicity described at 310 CMR 30.125B, unless specifically excluded.

 

(5)   Infectious Material.  Infectious materials are those materials, that, because of their infectious characteristics may:

(a)   cause, or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness; or

(b)   pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, disposed of or otherwise managed.  Infectious materials include but are not limited to those infectious wastes described in 105 CMR 130.360:  Medical Waste Disposal.  Infectious materials are hazardous materials subject to 310 CMR 40.0000, unless specifically excluded from regulation thereunder.

 

40.0350:   Reportable Quantities for Oil and Hazardous Material

 

(1)   The Reportable Quantities for the following substances are established in 310 CMR 40.0351 and 40.0352:

(a)   oils and hazardous materials that are listed at 310 CMR 40.1600; and

(b)   hazardous materials that exhibit one or more of the characteristics set forth in 310 CMR 40.0347(1) through (5).

 

(2)   All releases into the environment of the same oil or hazardous material from a single facility in a 24 hour period shall be aggregated to determine if a Reportable Quantity for the respective oil or hazardous material has been reached or exceeded.

 

40.0351:   Reportable Quantities for Oil

 

      Reportable Quantities for oils appear at 310 CMR 40.1600.

 

40.0352:   Reportable Quantities for Hazardous Material

 

(1)   Listed Hazardous Material:

(a)   Reportable Quantities for listed hazardous material appear at 310 CMR 40.1600; and

(b)   the applicable Reportable Quantity for a hazardous material that is listed at 310 CMR 40.1600 and that also exhibits one or more of the characteristics described at 310 CMR 40.0347(1) through (5) shall be the Reportable Quantity listed at 310 CMR 40.1600 for that particular hazardous material. 

 

(2)   Unlisted Hazardous Materials Identified by Characteristic.  The Reportable Quantity for hazardous materials that are not listed at 310 CMR 40.1600 but that exhibit one or more of the characteristics of ignitability, corrosivity or reactivity described at 310 CMR 40.0347(1) through 40.0347(3) or that are infectious materials as described in 310 CMR 40.0347(5) is ten pounds.

 

(3)   Unlisted Hazardous Materials which are Hazardous Material Because They Exhibit the Characteristic of Toxicity:

(a)   The Reportable Quantity for unlisted hazardous materials that exhibit the characteristic of toxicity under the provisions of 310 CMR 30.125B shall be the Reportable Quantity listed at 310 CMR 40.1600 for the hazardous material on which the characteristic of toxicity is based.  The Reportable Quantity applies to the entire amount of the unlisted hazardous material and not merely to the listed component hazardous material.  If an unlisted hazardous material exhibits the characteristic of toxicity on the basis of more than one of its component hazardous materials, the Reportable Quantity for the entire amount of the unlisted hazardous material shall be the Reportable Quantity for that component hazardous material which has the lowest Reportable Quantity in 310 CMR 40.1600.

(b)   If an unlisted hazardous material exhibits the characteristic of toxicity, as described in 310 CMR 30.125B, and one or more of the other characteristics described in 310 CMR 40.0347(1) through (3), or in 310 CMR 40.0347(5), the Reportable Quantity for the entire amount of the unlisted hazardous material shall be the lowest of the applicable Reportable Quantities.

 

(4)   Mixtures or solutions:

(a)   When a mixture or solution contains one or more component materials that are hazardous materials which appear at 310 CMR 40.1600 or that exhibit one or more of the characteristics of ignitability, corrosivity, or reactivity described at 310 40.0347(1) through (3), releases or threats of release to the environment of the mixture shall be reported to the Department under  310 CMR 40.0311 through 40.0312, when any of the following conditions exist:

1.   the concentrations of the component hazardous materials are known and the quantity of any of the component hazardous materials released or threatening to be released is equal to or greater than the Reportable Quantities for those component hazardous materials;

2.   the mixture or solution contains at least two component hazardous materials, the concentrations of the component hazardous materials are known and the quantity of any of the component hazardous materials released or threatened to be released does not exceed their respective Reportable Quantity but the total quantity of the hazardous material in the mixture or solution released or threatened to be released is equal to or greater than 50 pounds; or

3.   the concentrations of the component hazardous materials are not known, and the total quantity of the mixture or solution released or threatened to be released is equal to or greater than the Reportable Quantity for that component hazardous material which has the lowest Reportable Quantity in 310 CMR 40.1600.

(b)   The Reportable Quantity for mixtures which are hazardous material because they exhibit the characteristic of toxicity, as described in 310 CMR 30.125B, shall be determined according to 310 CMR 40.0352(3).

(c)   The Reportable Quantity provisions of 310 CMR 40.0352(4) do not apply to soils, sediments, residuals, surface waters and groundwaters that are being managed otherwise in compliance with all federal, state and local laws, regulations, and ordinances.

 

(5)   Materials Containing Polychlorinated Biphenyls:

(a)   Releases or threats of release to the environment of materials that contain polychlorinated biphenyls shall be reported to the Department pursuant to 310 CMR 40.0300, if:

1.   the concentration of polychlorinated biphenyls in a material is either unknown or known to be less than 500 ppm, and the release or threat of release of such material is equal to or greater than ten gallons; or

2.   the concentration of polychlorinated biphenyls in a material  is known or likely to be  equal to or greater than 500 ppm, and the release or threat of release of such material is equal to or greater than one gallon.

(b)   The Reportable Quantity provisions of 310 CMR 40.0352(5) do not apply to soils, sediments, residuals, surface waters and groundwaters that are being managed otherwise in compliance with all federal, state and local laws, regulations, and ordinances.

 

40.0360:   Reportable Concentrations for Oil and Hazardous Material

 

(1)   A release indicated by the measurement of oil and/or hazardous material in soil and/or groundwater requires notification to the Department under the provisions of 310 CMR 40.0315 if the measured concentration of one or more listed substance in 310 CMR 40.1600 in any soil or groundwater sample is equal to or greater than the media and category-specific Reportable Concentration value listed at 310 CMR 40.1600 in effect on the date of the sample analysis.

 

(2)   Except for gasoline, kerosene, and aviation fuel, the Reportable Concentration for the oils listed at 310 CMR 40.1600 shall be the Reportable Concentration established in 310 CMR 40.1600 for Total Petroleum Hydrocarbons (TPH) or the Reportable Concentrations established in 310 CMR 40.1600 for the Aliphatic Hydrocarbon Fractions and/or Aromatic Hydrocarbon Fractions which comprise these products.  Notification shall not be required for sites solely on the basis of a measurement of TPH equal to or greater than an applicable Reportable Concentration if data exists demonstrating that concentrations of the Aliphatic and Aromatic Hydrocarbon Fractions comprising the TPH are less than the applicable Reportable Concentrations established in 310 CMR 40.1600.

 

(3)   The Reportable Concentration for gasoline, kerosene, and aviation fuel shall be the Reportable Concentrations established in 310 CMR 40.1600 for the Aliphatic and Aromatic Hydrocarbon Fractions which comprise these products. 

 

(4)   The Reportable Concentration for Chromium shall be the Reportable Concentration established in 310 CMR 40.1600 for Total Chromium or the Reportable Concentrations established in 310 CMR 40.1600 for the specific species of chromium.  Notification shall not be required for sites solely on the basis of a measurement of Total (unspeciated) Chromium equal to or greater than the Reportable Concentration for Total Chromium if data exists demonstrating that the concentrations of Hexavalent Chromium (Cr VI) and Trivalent Chromium (Cr III) are both less than their applicable Reportable Concentrations established in 310 CMR 40.1600.

 

(5)   The Reportable Concentration values for the hazardous materials listed at 310 CMR 40.1600, including hazardous materials that may be components of oil or waste oil, shall be compared to concentrations of hazardous material in soil or groundwater that have been measured by the analytical procedures detailed in EPA Publication SW-846, Test Methods for Evaluating Solid Waste, the Department's Compendium of Analytical Methods or any other appropriate analytical procedure, as described in 310 CMR 40.0017.

 

(6)   The techniques utilized for obtaining soil and groundwater samples for comparison to the Reportable Concentration values listed at 310 CMR 40.1600 shall be in conformance with generally accepted practices and procedures, consistent with the Response Action Performance Standard described in 310 CMR 40.0191, and shall not involve measures or steps that are undertaken to cause or promote the dilution of analyte values for the sole purpose of avoiding reporting obligations imposed in 310 CMR 40.0315.

 

(7)   Persons notifying the Department of a release under the provisions of 310 CMR 40.0315 and 40.0360 through 40.0369 shall specify whether the measured concentration of one or more of the listed substances in 310 CMR 40.1600 constitutes a release of oil, hazardous material, or both oil and hazardous material.  Such a determination shall be based upon:

(a)   factual evidence relating to the source and mechanism of the release;

(b)   factual evidence relating to the storage, use and disposal of oil and hazardous material at the site of the release; and/or

(c)   analytical characterization of the release.

 

40.0361:   Reportable Concentrations of Oil and Hazardous Material in Soil

 

(1)   For the purpose of determining whether a notification  obligation exists under 310 CMR 40.0315, measured concentrations of any oil or hazardous material listed at 310 CMR 40.1600 shall be compared to the Reportable Concentration value in the reporting category that best characterizes the current use of the site under evaluation, as described below:

(a)   Reporting Category RCS-1.  Reporting category RCS-1 shall be applied to all soil samples obtained:

1.   at or within 500 feet of a residential dwelling, a residentially-zoned property, school, playground, recreational area or park; or

2.   within the geographic boundaries of a groundwater resource area categorized as RCGW-1 in 310 CMR 40.0362(1)(a).

(b)   Reporting Category RCS-2.  Reporting category RCS-2 shall be applied to all soil samples that are not obtained from category RCS-1 areas.

 

(2)   Reporting category RCS-1 shall be selected whenever and wherever reasonable doubts exist over the selection of the appropriate soil Reportable Concentration category.

 

40.0362:   Reportable Concentrations of Oil and Hazardous Material in Groundwater

 

(1)   For the purpose of determining whether a notification  obligation exists under 310 CMR 40.0315, measured dissolved concentrations of any oil or hazardous material listed at 310 CMR 40.1600 shall be compared to the Reportable Concentration value in the reporting category that best characterizes the site under evaluation, as described below:

(a)   Reporting Category RCGW-1.  Reporting category RCGW-1 shall be applied to all groundwater samples obtained:

1.   within a Current Drinking Water Source Area; or

2.   within a Potential Drinking Water Source Area.

(b)   Reporting Category RCGW-2.  Reporting category RCGW-2 shall be applied to all groundwater samples that are not obtained from category RCGW-1 areas.

 

(2)   Reporting category RCGW-1 shall be selected whenever and wherever reasonable doubts exist over the selection of the appropriate groundwater Reportable Concentration category.

 

40.0370:   Requirements for Releases of Oil and/or Hazardous Material That Do Not Require Notification

 

(1)   Response actions shall be undertaken for releases or threats of release of oil and/or hazardous material that do not require notification under 310 CMR 40.0300 if the releases or threats of release pose a significant risk to health, safety, public welfare, or the environment, as described in 310 CMR 40.0900.

 

(2)  Persons undertaking response actions for releases or threats of release of oil and/or hazardous material that do not require notification under 310 CMR 40.0300, unless otherwise notified by the Department, are not subject to the submittal requirements, approvals, or fees specified in 310 CMR 40.0000.  All such response actions shall conform to all applicable federal, state or local laws, regulations, or ordinances.

 

40.0371:   Release Notification Form

 

(1)   Written notification of releases and threats of release required under 310 CMR 40.0333 shall be submitted to the Department on a form established by the Department for such purposes and shall include, without limitation, the following:

(a)   the location and address where the release or threat of release occurred;

1.   the street number, city or town, and zip code, where applicable; and

2.   the location coordinates;

(b)   the time and date when the release or threat of release occurred;

(c)   the time(s) and date(s) when the person(s) required to provide the notification to the Department pursuant to 310 CMR 40.0331 obtained knowledge that the release or threat of release met one or more sets of notification criteria established in 310 CMR 40.0311 through 40.0315;

(d)   the time(s) and date(s) when oral notification of the release or threat of release was made to the Department, if applicable;

(e)   the set(s) of notification criteria met, as specified at 310 CMR 40.0311 through 40.0315;

(f)   the names and amounts of oil and/or hazardous material released or threatened to be released;

(g)   the names and mailing addresses of the owners of all properties impacted by the release or threat of release;

(h)   the name(s) and address(es) of the person(s) providing the notification of the release or threat of release;

(i)   the affiliation of the person(s) making the notification to the site of the release or threat of release, as described in 310 CMR 40.0331;

(j)   a signed and dated certification statement from the person(s) reporting the release or threat of release attesting to the truth and accuracy of the information provided, as specified at 310 CMR 40.0009; and

(k)   such other information as the Department may from time to time determine is necessary and useful in the fulfillment of its statutory obligations under M.G.L. c. 21E and 310 CMR 40.0300.

 

(2)   Persons required to notify of releases or threats of release to the Department under 310 CMR 40.0300 shall make reasonable efforts to obtain and preserve the information required in the Release Notification Form described in 310 CMR 40.0371(1), in order to furnish same to the Department.

 

(3)   Persons providing notification of a release(s) or threat(s) of release(s) shall also provide a copy of the Release Notification Form to the Chief Municipal Officer and the Board of Health in accordance with 310 CMR 40.1403(3)(h).