This copy of the Massachusetts Contingency Plan, 310 CMR 40, is not an "Official Version" of the regulations. In particular, it lacks page numbers and the effective dates at the bottom of each page. Other unexpected differences may also be present. This HTML version is offered as a convenience to our users and DEP believes that the body of the text is a faithful copy of the regulations. If you REALLY, ABSOLUTELY, MUST know that the version you have is correct and up-to-date, then you must purchase the document through the State Bookstore. The official versions of all state statutes and regulations are only available through the  Massachusetts State Bookstore .

 

40.0001:   Authority

      310 CMR 40.0001 through 40.9999, cited collectively as 310 CMR 40.0000, are promulgated by the Commissioner of the Department of Environmental Protection under M.G.L. c. 21E, §§ 3(c), 3(d), 3(e), 3A(d), 3A(f), 3A(g), 3A(m), 3B, 5A, 6, 7 and 14, and M.G.L. c. 21A, § 2(28), M.G.L. c. 21C and M.G.L. c. 111, § 160.  310 CMR 40.0000 collectively comprises the Massachusetts Contingency Plan (the "MCP").

 

40.0002:  Purpose

 

(1)   The purposes of the Massachusetts Contingency Plan are, without limitation, to:

(a)   provide for the protection of health, safety, public welfare and the environment by establishing requirements and procedures for the following:

1.   the prevention and control of activities which may cause, contribute to, or exacerbate a release or threat of release of oil and/or hazardous material;

2.   notification of the Department in the event of certain  releases or threats of release of oil and/or hazardous material;

3.   assessment of the nature and extent of contamination and any threat to health, safety, public welfare or the environment caused by a release or threat of release of oil and/or hazardous material; 

4.   the evaluation of alternatives for remedial actions to abate, prevent, remedy or otherwise respond to a release or threat of release of oil and/or hazardous material;

5.   the implementation of appropriate remedial actions to abate, prevent, remedy or otherwise respond to a release or threat of release of oil and/or hazardous material;

6.   public involvement in decisions regarding response actions at disposal sites; and

7.   the recovery of Costs incurred by the Commonwealth in responding to releases or threats of release of oil and/or hazardous material.

(b)   encourage persons responsible for releases and threats of release of oil and/or hazardous material to undertake necessary and appropriate response actions in a timely way;

(c)   focus government resources on those sites at which the person(s) responsible can not or will not undertake necessary response actions;

(d) focus government resources on those sites at which Department oversight is necessary to ensure that response actions are protective of health, safety, public welfare and the environment;

(e)   establish a program for the Department to issue Tier I Permits to persons seeking to carry out response actions at Tier I disposal sites; and

(f)   establish a program for the Department to audit a sufficient number of response actions not overseen or conducted by the Department to ensure that those response actions are performed in compliance with M.G.L. c. 21E, 310 CMR 40.0000 and other applicable laws.

 

(2)   The MCP identifies those oils and hazardous materials which are subject to the requirements and procedures set forth in 310 CMR 40.0000.

 

(3)   The MCP prescribes the respective roles and responsibilities of the Department, other governmental agencies, Responsible Parties, Potentially Responsible Parties, Licensed Site Professionals, Other Persons, and the public in response actions.


(4)   The MCP is intended to comport with and complement the National Contingency Plan promulgated by the United States Environmental Protection Agency under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980.

 

(5)   Except with respect to 310 CMR 40.1200, the MCP does not address the Commonwealth's recovery of damages associated with injury to, destruction of, or loss of use of natural resources or the costs of assessing those damages.

 

40.0003:   Applicability

 

(1)   The MCP applies to any person required by M.G.L. c. 21E to notify the Department of a release or threat of release of oil and/or hazardous material and/or to perform one or more response actions at any site in Massachusetts without regard to the level of Department oversight, if any, of response actions at the site. 

 

(2)   The MCP also applies to any other person who takes one or more response actions with respect to a site from or at which a release of oil and/or hazardous material has occurred or where a threat of release of oil and/or hazardous material exists.

 

40.0005:   Effective Dates

 

(1)   310 CMR 40.0000, as published on January 13, 1995, shall take effect on February 1, 1995, except for 310 CMR 40.0180 which shall take effect on February 24, 1995.  310 CMR 40.0000, as effective prior to February 1, 1995,  became effective on October 1, 1993, except for 310 CMR 40.0168 and 310 CMR 40.0600, which  became effective on August 2, 1993.

 

(2)   Except as provided by 310 CMR 40.0600, response actions which were approved by the Department:

(a)   prior to July 20, 1992, and on or after October 3, 1988, shall be completed in a manner consistent with such approval and in accordance with 310 CMR 40.000, as effective prior to October 1, 1993, and M.G.L. c. 21E, as amended prior to July 20, 1992, and

(b)   prior to October 1, 1993, and on or after July 20, 1992, shall be completed in a manner consistent with such approval and in accordance with 310 CMR 40.000, as effective prior to October 1, 1993, and M.G.L. c. 21E, as amended on July 20, 1992.  310 CMR 40.000 became effective on October 3, 1988, with the exception of 310 CMR 40.300 through 310 CMR 40.379 which became effective on August 31, 1988.

Copies of 310 CMR 40.000, as effective prior to October 1, 1993 (i.e. the 1988 Massachusetts Contingency Plan), may be obtained upon request from the Department for a nominal fee.

 

(3)   Except as provided by 310 CMR 40.0600, response actions which were approved by the Department prior to October 3, 1988, shall be completed in a manner consistent with such approval and M.G.L. c. 21E, as amended prior to July 20, 1992.

 

(4)   310 CMR 40.0000 as published May 30, 1997, shall take effect May 30, 1997.

 

(5)   310 CMR 40.0000 as published March 24, 2006 shall take effect April 3, 2006, except as provided in 310 CMR 40.0027 regarding the electronic submittal of Remedial Monitoring Reports.

 

(6)   310 CMR 40.0000 as published December 14, 2007 shall take effect February 14, 2008, except for 310 CMR 40.0570 which shall take effect on December 14, 2007.

 

(7)   Except as provided by 310 CMR 40.0005(8) through (10), 310 CMR 40.0000 as published  April 25, 2014 shall take effect on June 20, 2014.

 

(8)   The Reportable Concentrations for Oil and Hazardous Material in groundwater or soil listed in the Massachusetts Oil and Hazardous Material List at 310 CMR 40.1600 as published April 25, 2014, shall take effect on April 25, 2014.

 

(9)   The elimination of the requirement to submit an initial Tier I Permit Application, formerly 310 CMR 40.0704, from 310 CMR 40.0000, as published on April 25, 2014, shall take effect on April 25, 2014.

 

(10)   RPs, PRPs or Other Persons may conduct an initial Tier Classification of a disposal site in accordance with the Tier Classification Process and Basis for Tier Classification in 310 CMR 40.0510 and 40.0520, respectively, as published April 25, 2014.

 

40.0006:   Terminology, Definitions and Acronyms

 

(1)   The definitions of the terms "site," "disposal site," "vessel," "release" and "threat of release" contained in M.G.L. 21E and this Contingency Plan display subtle differences.  These terms are used in this Contingency Plan as follows:

(a)   the terms "site" and "vessel" are used to refer to a place or area from or at which a release of oil and/or hazardous material has occurred or where a threat of release exists;

(b)   the term "disposal site" is used to refer to a place or area where an uncontrolled release of oil and/or hazardous material from or at a site or vessel has come to be located.

 

(2)   The definitions of the terms "response action," "remedial action," "Comprehensive Response Action," "Comprehensive Remedial Action," and "Preliminary Response Action" contained in this Contingency Plan have specific meanings.  These terms are used in this Contingency Plan as follows:

(a)   the term "response action" is a broad term used to refer to assessments, containments and/or removals;

(b)   the term "remedial action" is a subset of "response actions" and is used to refer to containments and/or removals only, and excludes assessments;

(c)   the term "Comprehensive Response Action" is a subset of "response actions" and is used to refer to response actions performed in accordance with 310 CMR 40.0800;

(d)   the term "Comprehensive Remedial Action" is a subset of "Comprehensive Response Actions" and is used to refer to only remedial actions performed in accordance with 310 CMR 40.0800, and excludes assessments; and

      (e)   the term "Preliminary Response Action" is a subset of "response actions" and is used to refer to Initial Site Investigation Activities performed in accordance with 310 CMR 40.0405(1), and to Immediate Response Actions performed in accordance with 310 CMR 40.0410, and Release Abatement Measures performed in accordance with 310 CMR 40.0440 when such actions are performed prior to the initiation of Comprehensive Response Actions.

The terms "Comprehensive Response Action," "Comprehensive Remedial Action," and "Preliminary Response Action" are more specific terms than the terms "response action" and "remedial action," respectively, and shall not be construed to limit any application of the latter terms.

 

(3)   For purposes of 310 CMR 40.0000, the terms "priority disposal site,"  "Location To Be Investigated," and "non-priority disposal site" shall have the meaning ascribed to them by 310 CMR 40.020, prior to October 1, 1993.

 

(4)   For purposes of 310 CMR 40.0000, the terms "undertaking," "conducting" and "performing" are used to refer to the undertaking, conducting and performing of response actions by RPs, PRPs or Other Persons, as applicable.  Such persons may be required to engage or employ an LSP to provide Professional Services with respect to such response actions.

 

(5)   For purposes of 310 CMR 40.0000, the following words and phrases shall have the meaning ascribed to them by M.G.L. c. 21E, § 2, unless the context clearly indicates otherwise:  fiduciary, owner, operator and secured lender.

 

(6)   For purposes of 310 CMR 40.0000, the term "Solid Waste Management Facility" shall have the meaning ascribed to such term by 310 CMR 19.006:  Solid Waste Management Facility.

 

(7)   For purposes of 310 CMR 40.0000, the term "21C Facility" shall mean a hazardous waste management facility:

(a)   for which a currently valid license has been issued pursuant to 310 CMR 30.800:  Licensing Requirements and Procedures; or

(b)   that is a "facility having interim status pursuant to RCRA," as defined in 310 CMR 30.010:  Definitions, and is in compliance with 310 CMR 30.099(6).

 

(8)   For purposes of 310 CMR 40.0000, the term "21C Corrective Action" shall mean the closure of a 21C Facility pursuant to 310 CMR 30.580:  Closure  through 310 CMR 30.589, the post-closure care of a RCRA Facility pursuant to 310 CMR 30.590:  Post-closure through 310 CMR 30.599, and any other response action at a RCRA Facility required by M.G.L. c. 21C and/or 310 CMR 30.000:  Hazardous Waste.

 

(9)   For purposes of 310 CMR 40.0000, the term "HSWA Facility" shall mean:

(a)   a 21C Facility, and

(b)   a landfill, surface impoundment or waste pile unit, as such terms are defined in 40 Code of Federal Regulations § 260.10; provided such 21C Facility or landfill, surface impoundment or waste pile unit for which there exists a currently valid license, permit, approval or order issued pursuant to 42 U.S.C. §§ 6928(a), 6928(h), 6924(u) or 6924(v).

 

(10)   For purposes of 310 CMR 40.0000 the term "HSWA Corrective Action" shall mean corrective actions for a HSWA Facility required by a license, permit, approval or order issued pursuant to 42 U.S.C. §§ 6928(a), 6928(h), 6924(u) or 6924(v).

 

(11)   For purposes of 310 CMR 40.0000, the terms "sewer system", "NPDES", "Publicly Owned Treatment Works", "POTW", "outlet", and "effluent" shall have the meaning ascribed to such terms by 314 CMR 3.00, the Massachusetts Surface Water Discharge Permit Program.

 

(12)   For purposes of 310 CMR 40.0000, the following words and phrases shall have the following meanings unless the context clearly indicates otherwise:

 

Active Exposure Pathway Mitigation Measure means a type of Exposure Pathway Mitigation Measure that relies upon the continual or periodic use of a mechanical or electro-mechanical device.

 

Active Operation and Maintenance means activities related to:

(a)   operating and maintaining an Active Remedial System;

(b)   operating and maintaining an Active Exposure Pathway Mitigation Measure; or

(c)   conducting an Active Remedial Monitoring Program.

 

Active Remedial Monitoring Program means a remedial action that employs a systematically designed and monitored program of sampling and analyzing environmental media (e.g., application of Remedial Additives, Monitored Natural Attenuation, reactive walls); an Active Remedial Monitoring Program does not employ an Active Remedial System.

 

Active Remedial System  means a type of Remedial System that relies upon the continual or periodic use of an on-site or in-situ mechanical or electro-mechanical device to contain, treat and/or remove oil or hazardous material in the environment. The term does not include Active Exposure Pathway Mitigation Measures.

 

Act of God means an unanticipated grave natural disaster or other natural phenomenon of an exceptional, inevitable, and irresistible character, the effects of which could not have been prevented or avoided by the exercise of due care or foresight.  A natural disaster is unanticipated when it is of a type unexpected given the area, the season, and the past history of conditions.

 

Activity and Use Limitation means  a Grant of Environmental Restriction or Notice of Activity and Use Limitation recorded, registered or filed in accordance with 310 CMR 40.1070 through 310 CMR 40.1099.

 

Adjudicatory Hearing means a hearing conducted in accordance with M.G.L. c. 30A, § 10, and 310 CMR 1.00:  Adjudicatory Proceedings.

 

Affected Individual means any individual who experiences or may experience significant health, safety, welfare or environmental impacts from a disposal site.

 

Affected Person means any group of two or more individuals, or any community or agency thereof, or a district or body politic which operates a public water system that might be affected by a disposal site.

 

Agency means any agency, authority, board, commission, department, office, or political subdivision of the federal, state or local government.

 

Aliphatic Hydrocarbon Fraction means C5 through C8 Aliphatic Hydrocarbons, C9 through C12 Aliphatic Hydrocarbons, C9 through C18 Aliphatic Hydrocarbons, and C19 through C36 Aliphatic Hydrocarbons.

 

Anthropogenic Background means those levels of oil and hazardous material that would exist in the absence of the disposal site of concern and which are:

(a)   attributable to atmospheric deposition of industrial process or engine emissions and are ubiquitous and consistently present in the environment at and in the vicinity of the disposal site of concern;

(b)   attributable to Historic Fill;

(c)   associated with sources specifically exempt from the definitions of disposal site or release as those terms are defined in MGL c. 21E and 310 CMR 40.0006;

(d)   releases to groundwater from a public water supply system; or

(e)   petroleum residues that are incidental to the normal operation of motor vehicles.

 

Applicant means any person who applies for, or who is required to apply for, a permit, or who applies for a TAG or on whose behalf an application for a permit or TAG is made.

 

Application means any application, filing, notification, or other submittal of documents in the required form to the Department to initiate a permit or TAG.

 

Aquifer means a geologic formation, group of formations or part of a formation that is capable of yielding a significant amount of groundwater to wells or springs.

 

Area of Critical Environmental Concern and ACEC each means an area which has been so designated by the Secretary of Environmental Affairs pursuant to 301 CMR 12.00:  Areas of Critical Environmental Concern.

 

Aromatic Hydrocarbon Fraction means C9 through C10 Aromatic Hydrocarbons and C11 through C22 Aromatic Hydrocarbons.

 

As-built Construction Report means the document that is prepared in compliance with 310 CMR 40.0875.

 

Assess and Assessment each means investigations, monitoring, surveys, testing, and other information-gathering activities to identify:

(a)   the existence, source, nature and extent of a release or threat of release of oil and/or hazardous material;

(b)   the extent of risk or danger to the public health, safety, welfare and the environment; or

(c)   those persons liable under M.G.L. c. 21E, § 5.  Assess and Assessment shall also include, without limitation, studies, services and investigations to plan, manage and direct assessments, containments and removals, to determine and recover the costs thereof and to otherwise accomplish the purposes of M.G.L. c. 21E and/or 310 CMR 40.0000.  Assess and Assessment shall not include removals, containments or remedial actions.


Assessment Endpoint means a specific effect on a specific group of organisms that is evaluated in a quantitative environmental risk characterization.

 

Audit means any activity conducted by the Department pursuant to 310 CMR 40.1100 with respect to a site to determine whether response actions which the Department has not directly overseen or performed have been conducted in accordance with M.G.L. c. 21E, 310 CMR 40.000, 310 CMR 40.0000 and any other laws, regulations, orders, permits and approvals applicable to such response actions.  An audit may be conducted for all or any portion of a response action or site. 

 

Audit Follow-up Plan means a plan prepared by an LSP or the Consultant-of-Record pursuant to 310 CMR 40.1100  to confirm, demonstrate or achieve compliance with M.G.L. c. 21E and/or the MCP.

 

Background means those levels of oil and hazardous material that would exist in the absence of the disposal site of concern, including both Natural Background and Anthropogenic Background.

 

Best Management Practices for Non-commercial Gardening means current practices generally accepted by practitioners of safe gardening methods that limit potential human exposure to OHM during gardening activities and as the result of consumption of fruits and vegetables grown in a non-commercial garden.  Such practices include, but are not limited to: locating garden beds outside of areas affected by releases of OHM; gardening in raised beds above a barrier layer; use of soil and soil amendments unaffected by releases of OHM in garden beds; and covering adjacent areas to limit the transfer of OHM from windborne material into garden beds.

 

Biota means plant or animal life.

 

C5 through C8 Aliphatic Hydrocarbons means the cumulative concentration of all aliphatic hydrocarbon compounds with boiling points greater than 36EC and less than 150EC, as measured by chromatographic methods approved by the Department or equivalent procedures, excluding the individual compounds listed at 310 CMR 40.0974(2). 

 

C9 through C12 Aliphatic Hydrocarbons means the cumulative concentration of all aliphatic hydrocarbon compounds with boiling points equal to or greater than 150EC and less than 217EC, as measured by chromatographic methods approved by the Department or equivalent procedures, excluding the individual compounds listed at 310 CMR 40.0974(2).

 

C9 through C18 Aliphatic Hydrocarbons means the cumulative concentration of all aliphatic hydrocarbon compounds with boiling points equal to or greater than 150EC and less than 330EC, as measured by chromatographic methods approved by the Department or equivalent procedures, excluding the individual compounds listed at 310 CMR 40.0974(2).

 

C19 through C36 Aliphatic Hydrocarbons means the cumulative concentration of all aliphatic hydrocarbon compounds with boiling points equal to or greater than 330EC and less than 500EC, as measured by chromatographic methods approved by the Department or equivalent procedures, excluding the individual compounds listed at 310 CMR 40.0974(2).

 

C9 through C10 Aromatic Hydrocarbons means the cumulative concentration of all aromatic hydrocarbon compounds with boiling points greater than 169EC and equal to or less than 218EC, as measured by chromatographic methods approved by the Department or equivalent procedures, excluding the individual compounds listed at 310 CMR 40.0974(2).

 

C11 through C22 Aromatic Hydrocarbons means the cumulative concentration of all aromatic hydrocarbon compounds with boiling points greater than 218EC and equal to or less than 525EC, as measured by chromatographic methods approved by the Department or equivalent procedures, excluding the individual compounds listed at 310 CMR 40.0974(2).

 

CAS means Chemical Abstract Service.

 

Carcinogenic Slope Factor (CSF, also Cancer Slope Factor) means an estimate of the increased cancer risk from exposure to an oil or hazardous material (OHM), expressed as risk per unit dose of (mg OHM/kg-day).


CERCLA means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§ 960l et seq.

 

Chief Municipal Officer means the city manager in any city having a city manager, or the mayor in any other city; the town manager in any town having a town manager, or the chairman of the board of selectmen in any other town.

 

Class A Surface Water Body means any segment of an inland or coastal surface water body so assigned "Class A" pursuant to 314 CMR 4.00:  Massachusetts Surface Water Quality Standards.

 

Coastal Waters means the Atlantic Ocean and all contiguous saline bays, inlets and harbors within the jurisdiction of the Commonwealth including areas where fresh and salt waters mix and tidal effects are evident or any partially enclosed coastal body of water where the tide meets the current of a stream or river.

 

Commissioner means the Commissioner of the Department of Environmental Protection.

 

Community means any city or town of the Commonwealth.

 

Completion Statement means the LSP Opinion, including, but not limited to, applicable scopes of work, plans and reports, required by:

(a)   310 CMR 40.0427 upon completion of an Immediate Response Action;

(b)   310 CMR 40.0446 upon completion of a Release Abatement Measure;

(c)   310 CMR 40.0466 upon completion of a Utility-related Abatement Measure;

(d)   310 CMR 40.1140 upon completion of response actions required by an Audit Follow-up Plan;

(e)   310 CMR 40.0484 upon completion of Phase I;

(f)   310 CMR 40.0836 upon completion of Phase II;

(g)   310 CMR 40.0862 upon completion of Phase III;

(h)   310 CMR 40.0879 upon completion of Phase IV;

(i)   310 CMR 40.0893 upon completion of Phase V; and

(j)  any other permit, approval or order issued by the Department.

 

Compliance Assistance means any service rendered by the Department to assist any person performing a response action to confirm, demonstrate or achieve compliance with M.G.L. c. 21E, 310 CMR 40.0000 and other laws, regulations, orders, permits and approvals applicable to such response actions.

 

Comprehensive Remedial Action means any remedial action performed in accordance with 310 CMR 40.0800.

 

Comprehensive Remedial Alternative means a measure or combination of measures identified and evaluated in accordance with 310 CMR 40.0850 for its effectiveness in reducing, mitigating or eliminating risk posed by a disposal site.

 

Comprehensive Response Action means any response action performed in accordance with 310 CMR 40.0800.

 

Compressed gas means any material or mixture that is in a container and that, while in the container, has an absolute pressure exceeding 40 pounds per square inch at 70EF or, regardless of the pressure at 70EF, has an absolute pressure exceeding 104 pounds per square inch at 130EF.

 

Conceptual Site Model or CSM means a site-specific description of how contaminants entered the environment, how contaminants have been and may be transported within the environment, and routes of exposure to human and environmental receptors that provides a dynamic framework for assessing site characteristics and risk, identifying and addressing data gaps and managing uncertainty, eliminating or controlling contaminant sources, developing and conducting response action strategies, and evaluating whether those strategies have been effective in achieving desired endpoints. At sites at which NAPL is or may be present, this includes the body of fundamental scientific principles describing the behavior of fluid flow in porous media necessary to assess NAPL in subsurface strata.

 

Condition of Substantial Release Migration (SRM) means a 72-hour notification condition at a disposal site that is further defined at 310 CMR 40.0313(4) and 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 means those requirements set forth in a written determination issued by the Department for the purpose of permitting, regulating or prohibiting any activity pursuant to M.G.L. c. 21E and/or 310 CMR 40.0000.

 

Construction Plans and Specifications means any document that is prepared in accordance with 310 CMR 40.0870.

 

Consultant-of-record means  each consultant, other then a Licensed Site Professional, who  provides professional services with respect to a specific site, unless and until such person notifies the Department in writing that he or she is no longer engaged or employed to provide such services with respect to such site.

 

Contain and Containment each means actions taken in response to a release or threat of release of oil or hazardous material to prevent or minimize such release so that it does not migrate or otherwise cause or threaten substantial danger to present or future health, safety, public welfare or the environment.  The term shall also include security measures, including, without limitation, the building of fences for the purpose of limiting and restricting access to a site or vessel where there has been a release or there is a threat of a release of oil or hazardous material.

 

Containerized Waste means discarded oil and/or hazardous material at a site in drums, tanks, engineered impoundments, or other fabricated containers, including, without limitation,

(a)   discarded oil and/or hazardous material that was generated at a site as a result of manufacturing industrial, commercial, or other process-related activities, and

(b)   discarded oil and/or hazardous material discovered, managed, generated, or accumulated as part of a response action.

 

Contaminated Debris - means any debris that contains oil and/or hazardous material associated with a release for which notification is required by 310 CMR 40.0300 and 40.1600.

 

Contaminated Groundwater - means groundwater containing oil and/or hazardous material at concentrations equal to or greater than a release notification threshold established by 310 CMR 40.0300 and 40.1600.

 

Contaminated Media - means Contaminated Groundwater, Contaminated Sediment, Contaminated Soil, and/or Contaminated Surface Water.

 

Contaminated Sediments - means sediments containing oil and/or hazardous material associated with a release for which notification is required by 310 CMR 40.0300 and 40.1600.

 

Contaminated Soil - means soil containing oil and/or hazardous material at concentrations equal to or greater than a release notification threshold established by 310 CMR 40.0300 and 40.1600.


Contaminated Surface Water - means surface water containing oil and/or hazardous material associated with a release for which notification is required under 310 CMR 40.0300 and 40.1600.

 

Critical Exposure Pathways mean those routes by which oil and/or hazardous material(s) released at a disposal site are transported, or are likely to be transported, to human receptors via:

(a)   vapor-phase emissions of measurable concentrations of oil and/or hazardous materials into the living or working space of a pre-school, daycare, school or occupied residential dwelling; or

(b)   ingestion, dermal absorption or inhalation of measurable concentrations of oil and/or hazardous materials from drinking water supply wells located at and servicing a pre-school, daycare, school or occupied residential dwelling.

 

Cumulative Receptor Cancer Risk means the sum of the estimated excess lifetime cancer risks associated with exposure to all oil and/or hazardous material at or from a disposal site at all exposure points for a given receptor.

 

Cumulative Receptor Non-cancer Risk means a calculation of the possibility of non-cancer health effects associated with exposure to all oil and/or hazardous material at or from a disposal site at all exposure points identified for a given receptor.  The Hazard Index is a measure of the Cumulative Receptor Non-cancer Risk.

 

Current Drinking Water Source Area means groundwater located:

(a)   within the Zone II for a public water supply;

(b)   within the Interim Wellhead Protection Area for a public water supply;

(c)   within the Zone A of a Class A surface water body used as a public water supply; or

(d)   within 500 feet of a private water supply well.

 

Daycare or Child Care Center means a facility operated on a regular basis whether known as a daycare, child nursery, nursery school, kindergarten, child play school, progressive school, child development center, pre-school, or known under any other name, which receives children under seven years of age, or under 16 years of age if these children have special needs, for non-residential custody and care during part or all of the day separate from the parents or other persons responsible for the children. Daycare or Child Care Center shall not include: any part of a public school system; any part of a private organized educational system, unless the services of such a system are primarily limited to kindergarten, nursery or related pre-school services; a facility operated by a religious organization where children are cared for during short periods of time while parents or other persons responsible for the children are attending religious services; a facility within or attached to a commercial facility where children are cared for during short periods of time while parents or other persons responsible for the children are engaged in work or other activities; an informal cooperative arrangement among neighbors or relatives; or the occasional care of children with or without compensation.

 

Debris means solid material that is a manufactured object, plant or animal matter that is intended for disposal or is otherwise no longer serving its intended use.  The term shall include demolition and construction waste, hay, vegetation, and other organic and inorganic absorbent materials used to contain or absorb releases of oil and/or hazardous material.  The term shall not include:

(a)   any material for which a specific treatment standard is provided in subpart D of part 268 of the Code of Federal Regulations; or

(b)   process residuals such as smelter slag and residues from the treatment of waste, wastewater, sludges or air emission residues.

 

Demolition and Construction Waste means any waste materials and rubble resulting from the construction, remodeling, repair or demolition of buildings, pavement, roads or other structures.  Demolition and construction waste includes, but is not limited to, concrete, bricks, lumber, masonry, road paving materials, rebar and plaster.

 

Dense Nonaqueous Phase Liquid and DNAPL each means NAPL that has a specific gravity greater than one.

 

Department and DEP each means the Department of Environmental Protection.

 

Determination means any decision, oral or written, that is made by the Department in accordance with M.G.L. c. 21E and/or 310 CMR 40.0000 with regard to response actions and that is not an order issued pursuant to M.G.L. c. 21E, §§ 9 or 10, or a permit.

 

DDD means 2,2-bis(p-chlorophenyl)-1,1-dichloroethane.

 

DDE means dichlorodiphenyldichloroethylene.

 

DDT means 1,1,1-trichloro-2,2-bis(p-chlorophenyl)ethane.

 

Direct Hours means time expended by employees of the Department in planning, managing, directing or performing response actions, or otherwise ensuring compliance with the requirements of M.G.L. c. 21E and/or 310 CMR 40.0000, with respect to a specific site.

 

Discharge - means any addition, direct or indirect, of oil and/or hazardous material at or from a disposal site to any waters of the Commonwealth, POTW, sewer system, or Non-Publicly Owned Treatment Works, or to the ground surface or subsurface, that results from the management of Remedial Wastewater, Remedial Additives, and/or groundwater pursuant to 310 CMR 40.0000.

 

Disposal Site means any structure, well, pit, pond, lagoon, impoundment, ditch, landfill or other place or area, excluding ambient air or surface water, where uncontrolled oil and/or hazardous material has come to be located as a result of any spilling, leaking, pouring, abandoning, emitting, emptying, discharging, injecting, escaping, leaching, dumping, discarding or otherwise disposing of such oil and/or hazardous material.  The term shall not include any site containing only oil or hazardous materials which:  are lead-based paint residues emanating from a point of original application of such paint; resulted from emissions from the exhaust of an engine; are building materials still serving their original intended use or emanating from such use; or resulted from release of source, byproduct or special nuclear material from a nuclear incident, as those terms are defined in 42 U.S.C. § 2014, if such release was subject to requirements with respect to financial protection established by the Nuclear Regulatory Commission under 42 U.S.C. § 2210.

 

District means a fire, water, sewer, water pollution abatement, refuse disposal, light, school, economic development or improvement district, conservation or any other district, howsoever named, formed for the purpose of carrying out any of the aforementioned functions, whether established under general law or special act.

 

Document means writings or recordings of any nature, including, but not limited to, waste site cleanup activity opinions, applications, contracts, agreements, notices, communications, correspondence, memoranda, records, reports, petitions, plans, specifications, registers, books, logs, summaries, data, statistical statements, work papers, drafts, copies, graphs, charts, analytical records, journals, financial statements, and all other written, printed, recorded, electronic, magnetic or photographic matter, however produced or reproduced. 

 

                     Downgradient means:

(a)   in reference to surface water, the direction perpendicular to lines of equal elevation over a distance in which elevation continuously decreases, measured from the point or area in question; or

      (b)   in reference to groundwater, the direction perpendicular to lines of equipotential over a distance in which total head continuously decreases, measured from the point or area in question.

 

Downgradient Property means a parcel of land which is located downgradient of the parcel of land which is the source of a release which has come to be located thereon. 

 

Eligible Person means an owner or operator of a site or a portion thereof from or at which there is or has been a release of oil or hazardous material who:


(a)   would be liable under M.G.L. c. 21E, § 5(a)(1) solely; and

(b)   did not cause or contribute to the release of oil or hazardous material from or at the site and did not own or operate the site at the time of the release.

 

Eligible Tenant means a person who acquires occupancy, possession or control of a site, or a portion thereof, after a release of oil or hazardous material from or at such site has been reported to the department, who did not cause or contribute to the release and who would not otherwise be liable pursuant to M.G.L. c. 21E, § 5(a)(2) through (5).

 

Endangered Species means those vertebrate and invertebrate animal species officially listed as endangered by the Massachusetts Division of Fisheries and Wildlife under 321 CMR 10.00:  Massachusetts Endangered Species Act Regulations.

 

Engineered Barrier means a permanent cap with or without a liner that is designed, constructed and maintained in accordance with the requirements of 310 CMR 40.0996 and 310 CMR 40.0000.

 

Environment means waters, land, surface or subsurface strata, or ambient air of the Commonwealth.

 

Environmental Monitor means the publication of that name issued by the Executive Office of Environmental Affairs pursuant to 301 CMR 11.19.

 

Environmental Receptor means any living organism, other than humans, and/or any habitat which supports such organisms, and/or any other natural resource which comes into contact with oil and/or hazardous material as a result of a release to the environment.

 

Environmental Restriction means a restriction or other covenant concerning the use of property that is held or imposed by the Department pursuant to M.G.L. c. 21E, § 6.

 

EOEA means the Massachusetts Executive Office of Environmental Affairs.

 

EPA means the U.S. Environmental Protection Agency.

 

Excess Lifetime Cancer Risk means the estimated probability that an individual's exposure during a lifetime to an oil or hazardous material could result in cancer.

 

Exposure means any contact with or ingestion, inhalation or assimilation of oil and/or hazardous material, including, without limitation, irradiation.

 

Exposure Pathway means the mechanism by which human or environmental receptors inhale, consume, absorb, or otherwise take in oil and/or hazardous material at an Exposure Point.

 

Exposure Pathway Mitigation Measure means a remedial action directed at an Exposure Pathway that eliminates exposure to human or ecological receptors or reduces such exposures to meet applicable performance standards.

 

Exposure Point means a location of potential contact between a human or environmental receptor and a release of oil and/or hazardous material.  An Exposure Point may describe an area or zone of potential exposure, as well as a single discrete point.

 

Exposure Point Concentration means the concentration of oil or hazardous material in a specific medium which a human or environmental receptor may contact at an Exposure Point.

 

Fee means a permit application fee for a Bureau of Waste Site Cleanup permit or an annual compliance assurance fee payable in accordance with M.G.L. c. 21E, § 3B, 310 CMR 4.00:  Timely Action Schedule and Fee Provisions and 310 CMR 40.0000.

 

Final Inspection Report means the document that is required by 310 CMR 40.0870.


Fish Habitat means any surface water body that serves as a habitat for fresh or marine fauna, including, but not limited to, crustacean, fin fish and shellfish.

 

Fill Material means soil, sediments, rock and/or stone obtained off-site that is used to fill holes or depressions, create mounds, or otherwise artificially change the grade or elevation of real property.

 

Flammable Range means the difference between the minimum and maximum volume percentages of the material in air that forms a flammable ignitable compressed gas.

 

Freshwater Environment (Reserved)

 

Force Majeure means any act or occurrence, beyond the reasonable control of a RP, PRP or Other Person, and without the fault of such person, directly affecting the ability of the RP, PRP or Other Person to comply with any deadline or time period imposed by M.G.L. c. 21E, 310 CMR 40.0000 or any order or determination issued by the Department pursuant to M.G.L. c. 21E or 310 CMR 40.0000, which event could not have been prevented, avoided or overcome by the exercise of due care, foresight or due diligence on the part of such person.  Such force majeure events may include, but are not limited to, acts of God, fires, floods, strikes, labor actions, an order of court, a prohibition or inability arising under a federal, state or local statute, regulation, code, ordinance or by-law, acts of a public enemy, war embargo, insurrection, riot, the condemnation, taking, seizure or involuntary conversion of a site or any part thereof by the action of any federal, state or local governmental body, or any delay which results from inability to secure access to the site if the cause of the inability is not within the person's reasonable control.  Legal, technical and financial inability, or increased costs or expenses associated with performance of any action called for by 310 CMR 40.0000 or an order issued by the Department, shall not be considered a force majeure.

 

Grant Agreement means the document which, upon signature by the Commissioner and the TAG Applicant or the authorized representative of the applicant, constitutes a binding agreement containing the terms and conditions of a Technical Assistance Grant and the obligations of the Department and the Grantee.

 

Grantee means a person or group of persons who has been awarded a Technical Assistance Grant in accordance with 310 CMR 40.1400.

 

Groundwater means any water below the earth's surface in the zone of saturation.

 

Habitat means the area or type of environment in which an organism or biological population normally lives or occurs, including, without limitation, wetland habitat, woodland habitat, grassland habitat and mountain habitat.

 

Hazard Index means a calculation of the possibility of non-cancer health effects as the result of exposure to one or more oil or hazardous materials with the same or similar modes of toxic action or toxic endpoints.  The Hazard Index (HI) is defined as: HI = D1 /AD1 + D2 /AD2 + ... + Di/ADi where D is the daily dose (or daily concentration) for a particular oil or hazardous material, and AD is the allowable daily dose (or allowable daily concentration) for a particular oil or hazardous material specified by the Department.  The allowable daily concentration is the Reference Concentration or other allowable daily concentration specified by the Department.

 

Hazard Quotient means a calculation of the possibility of non-cancer health effects as the result of exposure to an oil or hazardous material.  The Hazard Quotient (HQ) is defined as: HQ = D/AD where D is the daily dose (or daily concentration) for the oil or hazardous material and AD is the allowable daily dose (or allowable daily concentration) for the oil or hazardous material specified by the Department.  The allowable daily concentration is the Reference Concentration or other allowable daily concentration specified by the Department. 


Hazardous Material means material, including, but not limited to, any material in whatever form which, because of its quantity, concentration, chemical, corrosive, flammable, reactive, toxic, infectious or radioactive characteristics, either separately or in combination with any substance or substances, constitutes a present or potential threat to human health, safety, welfare, or to the environment, when improperly stored, treated, transported, disposed of, used, or otherwise managed.  The term shall not include oil, but shall include waste oil and all those substances which are included under 42 U.S.C. § 9601(14), but it is not limited to those substances.  The term shall also include, but is not limited to, material regulated as hazardous waste or recyclable material under 310 CMR 30.000:  Hazardous Waste.

 

Hazardous Waste means a waste, or combination of wastes, which because of its quantity, concentration, or physical, chemical or infectious characteristics may cause, or significantly contribute to an increase in serious irreversible, or incapacitating reversible illness or pose a substantial present or potential hazard to human health, safety, public welfare or the environment when improperly treated, stored, transported, used or disposed of, or otherwise managed, however, not to include solid or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to permits under section 402 of the Federal Water Pollution Control Act of 1967, or source, special nuclear, or by product material as defined by the Atomic Energy Act of 1954, as further described in 310 CMR 30.000:  Hazardous Waste.

 

Headspace Screening Method means an analytical screening procedure which relies upon the mass transfer of volatile oil and/or hazardous material from a solid or liquid test sample to an overlying confined space.

 

Historic Fill means Fill Material that based on the weight of evidence and consistent with the Conceptual Site Model:

(a)   was emplaced before January 1, 1983;

(b)   may contain, but is not primarily composed of, construction and demolition debris, reworked soils, dredge spoils, coal ash, wood ash or other solid waste material;

(c)   was contaminated with metals, hydrocarbons, and/or polycyclic aromatic hydrocarbons prior to emplacement, at concentrations consistent with the pervasive use and release of such materials prior to 1983;

(d)   does not contain oil or hazardous materials originating from operations or activities at the location of emplacement;

(e)   is not and does not contain a generated hazardous waste, other than Oil or Waste Oil;

(f)   does not contain chemical production waste, manufacturing waste, or waste from processing of metal or mineral ores, residues, slag or tailings; and

(g)   does not contain waste material disposed in a municipal solid waste dump, burning dump, landfill, waste lagoon or other waste disposal location.   

 

Hot Spot means a discrete area where the concentrations of oil or hazardous material are substantially higher than those present in the surrounding area.  A hot spot shall be identified based on consideration of both the concentration of an oil or hazardous material within a contaminated area and the spatial pattern of that contamination.  The areal extent and spatial pattern of a hot spot may be determined through the analytical results from multiple samples taken within the area, or the results of limited sampling in combination with other knowledge about the release, such as the presence of discoloration, odors or a defined source area. Discrete areas where the average concentration within the area is greater than ten but less than one hundred times the average concentration in the immediate surrounding area is a Hot Spot unless  there is no evidence that the discrete area would be associated with greater exposure potential than the surrounding area. In all cases, a discrete area where the concentration of an oil or hazardous material is greater than one hundred times the concentration in the surrounding area shall be considered a Hot Spot.  In no case shall concentrations of oil or hazardous material equal to or less than an applicable Method 1 standard be considered indicative of a Hot Spot. 

 

Hourly Rate of Compensation and Hourly Rate each means the total compensation per hour provided to an employee or contractor of the Department.  With respect to employees of the Department, it is calculated by dividing the weekly pay rate of an employee by the authorized number of weekly hours of the employee, excluding over-time hours, and multiplying the resulting figure by a factor which reflects the average cost of paid leave, health insurance and pension benefits.  With respect to contractors employed by the Department, it is the hourly rate for the employee established by the contract between the Department and the contractor or the employer of the contractor. 

 

Human Receptor means a person who is likely to be affected by a site, as further described in 310 CMR 40.0900.

 

Immediate Response Action and IRA each means any response action performed in accordance with 310 CMR 40.0410.

 

Imminent Hazard means a hazard which would pose a significant risk of harm to health, safety, public welfare or the environment if it were present for even a short period of time, as further described in 310 CMR 40.0950.

 

Imminent Hazard Evaluation means an evaluation performed in accordance with 310 CMR  40.0951 through 310 CMR  40.0955.

 

Indirect Rate means a rate which reflects the average cost per hour of services provided by Department employees, and expenses incurred by the Department, in support of Direct Hours.  The Indirect Rate includes, but is not limited to,  time spent by Department employees performing management, administrative, clerical, training, fiscal management, information management, laboratory certification, quality assurance and quality control duties, and non-labor overhead expenses, including office space and equipment rentals, office supplies, telephone bills, field and laboratory equipment, training expenses, utility service, maintenance and repairs, printing and travel, medicare, unemployment insurance and workers' compensation payments.

 

Influent means any flow of Remedial Wastewater or groundwater into treatment works.

 

Informal conference means a conference not subject to those provisions of M.G.L. c. 30A, § 10, governing adjudicatory proceedings.

 

Initial Site Investigation Activities means any activity performed in accordance with 310 CMR 40.0405(1).

 

Innovative technology means technology which is state-of-the-art and/or experimental.

 

Institution means any publicly or privately owned hospital, health care facility, orphanage, nursing home, convalescent home, educational facility, or correctional facility, where such facility in whole or in part provides overnight housing.

 

Interim Deadline means a deadline established by the Department pursuant to M.G.L. c. 21E, § 3A(j), and 310 CMR 40.0167, other than a deadline that is either expressly set forth in 310 CMR 40.0000 or determined by reference to a specific provision in 310 CMR 40.0000.

 

Interim Wellhead Protection Area ("IWPA") means:

(a)   with respect to public water supply wells and wellfields whose pumping rate is 100,000 gallons per day or greater and for which the Department has not approved a hydrologically delineated Zone II, the ½ mile radius surrounding such well or wellfield; and

(b)   with respect to public water supply wells and wellfields whose pumping rate is less than 100,000 gallons per day and for which the Department has not approved a hydrologically delineated Zone II, the radius calculated by multiplying the maximum pumping rate in gallons per minute for such well or wellfield by 32 and adding 400 feet thereto (i.e. IWPA =  32y + 400; where y = pumping rate in gallons per minute).


Knowledge means:

(a)   actual knowledge; or

(b)   knowledge a person acting in a reasonably prudent and intelligent manner would have, but for that person's willful, knowing or negligent avoidance of learning about the fact or facts in question.  In determining whether a person has acted in a reasonably prudent and intelligent manner, any specialized knowledge or training possessed by that person and the circumstances surrounding the fact or facts in question shall be taken into account.

 

Known Source means, for the purposes of the Downgradient Property Status provisions at 310 CMR 40.0189, the original location of a release that has migrated in or on groundwater or surface water to a downgradient or downstream property, as established by a preponderance of credible scientific and technical evidence.

 

Lake means any open body of fresh water with a surface area of ten acres or more, including, without limitation, Great Ponds.

 

Leaching means the percolation or draining of liquid through oil and/or hazardous material.

 

Licensed Site Professional and LSP each means a hazardous waste site cleanup professional, as defined in M.G.L. c. 21A, § 19, holding a valid license issued by the Board of Registration of Hazardous Waste Site Cleanup Professionals pursuant to M.G.L. c. 21A, §§ 19 through 19J.

 

Lien Notice means a written notice that the Department intends to perfect a lien pursuant to M.G.L. c. 21E, § 13.

 

Light Nonaqueous Phase Liquid and LNAPL each means NAPL that has a specific gravity equal to or less than one.

 

Limited Removal Action and LRA each means a response action performed in accordance with 310 CMR 40.0318.

 

Living or Working Space means finished and unfinished space within a Daycare or Child Care Center, School or Residential Dwelling, where there is evidence of the potential for more than incidental use (use for more than one hour at a time).  Crawl spaces and basements with only incidental use, such as storage or periodic laundry, are not  considered Living or Working Space.

 

Lower Explosive Limit and LEL each means the concentration of oil and/or hazardous material in air below which a flame will not propagate if the mixture is ignited.

 

LSP Evaluation Opinion means an LSP Opinion submitted to the Department in accordance with 310 CMR 40.0600.

 

LSP-of-record means each Licensed Site Professional who has rendered an LSP Opinion submitted to the Department with respect to a specific site, unless and until such person notifies the Department in writing that he or she is no longer engaged or employed in his or her capacity as a Licensed Site Professional with respect to such site.

 

LSP Opinion and Opinion each means a "waste site cleanup activity opinion," as that phrase is defined in M.G.L. c. 21A, § 19, that has been submitted to the Department.

 

LSP Tier Classification Opinion means the LSP Opinion rendered in accordance with 310 CMR 40.0500.

 

Manage -   means any direction or control over the management of Remediation Waste, Remedial Wastewater, Remedial Additives, or Containerized Waste at or from a disposal site.

 


Management - means the act, manner or practice of managing, handling or controlling Remediation Waste, Remedial Wastewater, Remedial Additives, Remedial Additive By-products, and/or Containerized Waste at or from a disposal site, including, but not limited to, any excavation, pumping, pouring, emission, containment, dumping, emptying, discarding, injection, discharge, displacement, collection, transportation, withdrawal, storage, treatment, detoxification, reuse, immobilization, solidification, incineration, encapsulation, removal, recycling, or disposal of such additives, waste, or wastewater.

 

Marine Environment (Reserved)

 

Massachusetts Contingency Plan and MCP each means 310 CMR 40.0000.

 

Measurement Endpoint means the result of a measurement that is used to evaluate an assessment endpoint.

 

MEPA means the Massachusetts Environmental Policy Act, M.G.L. c. 30, §§ 61 through 62H, and 301 CMR 11.00:  MEPA Regulations.

 

Migration pathway means a pathway by which oil and/or hazardous material is transported at or from a disposal site.

 

Modifying Factor (MF) means a factor greater than zero and less than or equal to ten by which a no-observed-adverse-effect level is divided to estimate a Reference Dose.  The MF reflects qualitative professional judgments regarding scientific uncertainties not covered under the standard Uncertainty Factors, such as the completeness of the overall data base and the number of animals in the experimental study.

 

Monitored Natural Attenuation means a systematically designed and monitored Comprehensive Remedial Action that employs physical, chemical, and/or biological processes under favorable conditions to act without human intervention and primarily through degradation mechanisms to reduce the mass, toxicity, mobility, volume, or concentration of contaminants in soil or groundwater, as described in publications by EPA, the Department and other sources that are generally accepted by professionals conducting response actions.

 

Monitoring Well means a well designed to facilitate the down-hole measurement of groundwater and/or gas levels and the collection of groundwater and/or gas samples.

 

NAPL with Micro-scale Mobility means a NAPL with a footprint that is not expanding, but which is visibly present in the subsurface in sufficient quantities to migrate or potentially migrate as a separate phase over a short distance and visibly impact an excavation, boring or monitoring well.

 

National Contingency Plan and NCP each means 40 CFR Part 300, as amended.

 

National Priorities List and NPL each means the National Priorities List published by the U.S. Environmental Protection Agency pursuant to CERCLA.

 

Natural Background means those levels of oil and hazardous material that would exist in the absence of the disposal site of concern, are ubiquitous and consistently present in the environment at and in the vicinity of the disposal site of concern, and are attributable to geologic or ecological conditions.

 

Nonaqueous Phase Liquid and NAPL each means oil and/or hazardous material that is present in the environment as a separate phase liquid. 

 

Non-potential Drinking Water Source Area means:

(a)   any Potentially Productive Aquifer or portion thereof which underlies land which has been developed for one or more of the following uses as of January 1, 1996:

1.   Industry, including: 

a.   heavy industry with facilities that manufacture, store and assemble raw or partially processed products;

b.   light industry with facilities that manufacture or assemble smaller, partially processed products); and

c.   warehouses and transportation facilities for bulk products;

2.   Commerce, including stores, hotels, offices, shopping centers, restaurants, theaters, parking garages/lots and buildings used to distribute and sell goods and services;

3.   Dense residential development and associated uses, including:

a.   garden apartments (and attached recreational facilities);

b.   tenements, town or row houses and apartment buildings with associated retail uses; 

c.   high density urban residential development with one to four families housed on lots less than ¼ acre in size;

d.    mobile home parks.

4.   Transportation and associated liquid storage facilities, including:

a.   airports with paved landing strips, hangars, parking areas and related facilities (excluding small airfields without paved landing strips, hangars or other specialized facilities);

b.   docks, warehouses and related land-based storage facilities for water transportation and commercial fishing;

c.   rail yards, terminal freight and storage facilities, and rail stations for passengers;

d.   terminal freight and storage facilities for truck freight;

e.   bus terminals; and

f.   divided highways with a right-of-way wider than 200 feet;

5.   Urban open space, including: 

a.   open undeveloped land in the midst of urban areas or adjacent to them, including land that has been cleared for urban development;

b.   buildings with grounds and green space which are used by Institutions to serve  large numbers of people (e.g., schools, hospitals, prisons); and

c.   cemeteries.

(b)   such developed land described in 310 CMR 40.0006:  Non-potential Drinking Water Source Area(a) shall encompass an area at least 100 acres in size, but may include areas that have not been developed for the above -listed uses, provided that the land that has not been developed for the above-listed uses is:

1.   less than 100 acres in size, and

2.   completely surrounded by areas that have been developed for one or more of the above-listed uses.

(c)   those portions of Potentially Productive Aquifers that underlie block groups (defined by the U.S. Census Bureau) identified by the most recent U.S. Census as having a population density equal to or greater than 4,400 persons per square mile; or

(d)   any aquifer or portion of an aquifer categorized as a Non-potential Drinking Water Source Area pursuant to 310 CMR 40.0932(5)(c);

 

Non-publicly Owned Treatment Works - means any device or system used in the treatment (including recycling and reclamation) of sewage or industrial wastes of a liquid nature which is not publicly owned. A Non-publicly Owned Treatment Works includes any sewers, pipes, or other conveyances only if they convey wastewater to a Non-publicly Owned Treatment Works providing treatment.

 

Non-stable NAPL means a NAPL with a footprint that is expanding laterally or vertically by:

(a)   migrating along or within a preferred flow path;

(b)   discharging or periodically discharging to a building, utility, drinking water supply well, or surface water body; or

(c)   spreading as a bulk fluid through or from subsurface strata.

 

No Further Action Letter means a document submitted to the Department upon the completion of all response actions required by 310 CMR 40.000, as effective prior to October 1, 1993.


No Significant Risk means a level of control of each identified substance of concern at a site or in the surrounding environment such that no such substance of concern shall present a significant risk of harm to health, safety, public welfare or the environment during any foreseeable period of time.

 

No Substantial Hazard means a level of control of each identified substance of concern at a site or in the surrounding environment such that no such substance of concern shall present a Substantial Hazard to health, safety, public welfare, or the environment.

 

Notice of Activity and Use Limitation means a written notice of the activities, uses and/or exposures that provide the basis for a Permanent Solution or Temporary Solution Statement, as further described in 310 CMR 40.1074 through 40.1099.

 

Notice of Audit means a written or verbal notice given to a person by the Department that communicates that the Department intends to audit that person or a response action or site.

 

Notice of Intent to Assess a Civil Administrative Penalty and PAN each means a written notice given to a person that states that the Department is seeking to assess a civil administrative penalty pursuant to M.G.L. c. 21A, § 16, and 310 CMR 5.00:  Administrative Penalty.

 

Notice of Noncompliance and NON each means a written notice given to a person by the Department that states that said person has failed to comply on any specified occasion with any described requirement, as further described in 310 CMR 5.12:  Notice of Noncompliance.

 

Notice of Response Action and NORA each means a notice from the Department to a person informing the person of the Department's intent to undertake one or more response actions.

 

Notice of Responsibility and NOR each means a notice from the Department to a person informing such person of his or her potential liability pursuant to M.G.L. c. 21E, § 5.

 

Notification Requirements means the requirements for providing notification to the Department:

(a)   of releases, and threats of release, of oil and/or hazardous material and Imminent Hazards set forth in 310 CMR 40.0300; and/or

(b)   of changes in activities, uses and/or exposures set forth in 310 CMR 40.0020.

 

NPL Site means a disposal site published on the National Priorities List by EPA.

 

OHM means oil and/or hazardous material.

 

Oil means insoluble or partially soluble oils of any kind or origin or in any form, including, without limitation, crude or fuel oils, lube oil or sludge, asphalt, insoluble or partially insoluble derivatives of mineral, animal or vegetable oils and white oil.  The term shall not include waste oil, and shall not include those substances which are included in 42 U.S.C. § 9601(14).

 

Oil facility means a structure, group of structures, equipment, or device, including a public vessel but not including any other type of vessel, that is used for one or more of the following purposes:  exploring for, drilling for, producing, storing, handling, transferring, processing, or transporting oil.  This definition shall include, without limitation, any motor vehicle, rolling stock, or pipeline used for one or more of the purposes set forth in the preceding sentence.

 

On-site Worker means a person employed full- or part-time at a property or properties at which a disposal site is located.  On-site worker does not refer to workers engaged specifically in disposal site remediation activities.

 

Operations, Maintenance and/or Monitoring Plans means the document that is prepared in accordance with 310 CMR 40.0870.

 

Other Person means a person who undertakes a response action who is not a RP or PRP.

 

Outstanding Resource Waters means waters in the Commonwealth given a protected status due to their ecological, socioeconomic, recreational, and/or aesthetic value pursuant to 314 CMR 4.04(3).

 

Overhead means non-labor overhead expenses.  It includes, but is not limited to, space and equipment rentals, office supplies, telephones, field and lab equipment, utilities, maintenance and printing.  The hourly rate used in these provisions will be that calculated for the Department's fees set forth in 310 CMR 4.00:  Timely Action Schedule and Fee Provisions.

 

Oxidizer means a material that yields oxygen readily to stimulate the combustion of organic matter; e.g., chlorate, permanganate, peroxide, nitrocarbonitrate, or inorganic nitrate.

 

Park, Playground and Recreation Area each means land set aside for use by the public for athletic, recreational or leisure activities.

 

Passenger Vehicle means a two-, three-, or four-wheeled conveyance used solely for non-commercial purposes.

 

Passive Exposure Pathway Mitigation Measure means a type of Exposure Pathway Mitigation Measure that does not rely upon the continual or periodic use of an on-site or in-situ mechanical or electro-mechanical device.

 

Periodic Review Opinion means an LSP Opinion that is prepared in accordance with 310 CMR 40.1050.

 

Permanent Solution means a measure or combination of measures which will, when implemented, ensure attainment of a level of control of each identified substance of concern at a disposal site or in the surrounding environment such that no substance of concern will present a significant  risk of damage to health, safety, public welfare, or the environment during any foreseeable period of time.

 

Permanent Solution Statement means an LSP Opinion submitted to the Department to document the achievement of a Permanent Solution in accordance with 310 CMR 40.1000.

 

PCBs means polychlorinated biphenyls.

 

Permit means any permit, license, certificate, registration, plan approval, variance or other approval issued, or required, by the Department pursuant to M.G.L. c. 21E and 310 CMR 40.0000.

 

Permittee means a person authorized to perform response actions required by M.G.L. c. 21E and/or 310 CMR 40.0000 pursuant to a valid permit issued by or filed with the Department.

 

Person means any agency or political subdivision of the federal government or state; any state, public or private corporation or authority; any interstate body, foreign nation, individual, trust, firm, joint stock company, partnership, association or other entity; any officer, employee, or agent of such person; and any group of persons.

 

Phase Report means a Phase I Report prepared in accordance with 310 CMR 40.0483, Phase II Report prepared in accordance with 310 CMR 40.0835, Phase III Remedial Action Plan prepared in accordance with 310 CMR 40.0861, Phase IV Remedy Implementation Plan prepared in accordance with 310 CMR 40.0874, Phase IV As-Built Construction Report prepared in accordance with 310 CMR 40.0875, Phase IV Operation, Maintenance and Monitoring Plan prepared in accordance with 310 CMR 40.0874(3)(d), Final Inspection Report prepared in accordance with 310 CMR 40.0878, Phase IV Status and Remedial Monitoring Report prepared in accordance with 310 CMR 40.0877, and Phase V Status and Remedial Monitoring Report prepared in accordance with 310 CMR 40.0892.

 

Pilot Test means a test designed to acquire information on the anticipated performance of a remedial system.  A Pilot Test shall be considered assessment if it is conducted and completed within 21 consecutive days, excluding time required for sample analyses, and involves only soil vapor, Nonaqueous Phase Liquid and/or groundwater extraction, otherwise it shall be considered remediation.

 

Playground (see Park)

 

Point Source means a discernible, confined and discrete conveyance, including, but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock or vessel from which oil and/or hazardous material is or may be discharged.

 

Pond means any coastal or inland pond, as defined in 310 CMR 10.04:  Pond.

 

Potential Drinking Water Source Area means groundwater located:

(a)   500 feet or more from a public water supply distribution pipeline, unless the groundwater is located under a parcel of land or a facility where any portion of that parcel of land or facility is located less than 500 feet from a public water supply distribution pipeline.

(b)   within an area designated by a municipality specifically for the protection of groundwater quality to ensure its availability for use as a source of potable water supply.  Such designation shall be in the form of:

1.   a local ordinance or bylaw adopted by the municipality (e.g., an Aquifer Protection District or Zone);

2.   an intermunicipal agreement approved by the municipal legislative body; or

3.   an executed inter-governmental contract for the purchase or sale of drinking water (e.g., a contract between a public authority supplying water and a municipality); or

(c)   within a Potentially Productive Aquifer that has not been excluded as a Non-Potential Drinking Water Source Area.

 

Potentially Productive Aquifer means:

(a)   all aquifers delineated by the U.S. Geological Survey (USGS) as a high or medium yield aquifer; and

(b)   all aquifers located east of the Cape Cod Canal (Cape Cod), on the Elizabeth Islands, on Martha's Vineyard, or on Nantucket.

 

Potentially Responsible Party and PRP each means a person who is potentially liable pursuant to M.G.L. c. 21E.

 

ppm means parts per million.

 

Private Water Supply Well means a well which is utilized by a private water system.  For purposes of 310 CMR 40.0000, the phrase "private water system" is used to refer to a system for the provision of piped water for human consumption which has fewer than 15 service connections or does not regularly serve an average of at least 25 individuals daily at least 60 days of the year.


Professional Services means the rendering of LSP Opinions, and services associated with the rendering of LSP Opinions, by a Licensed Site Professional who has either:

(a)   in the case of an LSP Opinion related to an assessment:

1.   managed, supervised or actually performed such assessment, or

2.   periodically observed the performance by others of such assessment; or

(b)   in the case of an LSP Opinion related to a containment or removal:

1.   managed, supervised or actually performed such action, or

2.   periodically reviewed and evaluated the performance by others of such action.

 

Property Interest means, for purposes of 310 CMR 40.1250, an interest in property held by an owner, mortgagee or holder of a leasehold interest, holder of rights under an easement or other recorded instrument affecting title to property, or holder of a security interest or lien.

 

Protected Open Space means

(a)   any federal, state or local government-protected open space, including, but not limited to, parks, forests and watershed lands;

(b)   any land used for conservation purposes by a non-profit corporation, such as the Massachusetts Audubon Society, the Trustees of Reservation (excluding land held for its historic value only) and the Nature Conservancy; and

(c)   excluding any privately held land associated with a conservation restriction or easement or controlled by a person other than a non-profit corporation or Agency.

 

Public Involvement Activities means those activities which a person undertaking one or more response actions is required to perform by M.G.L. c. 21E and 310 CMR 40.1400 to inform the public of, and/or involve the public in, decisions regarding response actions at disposal sites, including, without limitation, the designation of a disposal site as a PIP Site, the provision of notice of response actions to local officials, the publication of notices of public meetings and/or of response actions in newspapers of general circulation in a community, the development of a Public Involvement Plan and the provision of relevant information to the public.

 

Public Involvement Plan Site and PIP Site each means a disposal site for which additional public involvement activities are required beyond those required for every disposal site and which has been designated as a PIP site pursuant to 310 CMR 40.1404.

 

Public Water Supply means a source of water supply, including, but not limited to, primary, backup and emergency sources, utilized by a public water system.  For purposes of 310 CMR 40.0000, the terms "public water system," "primary source," "backup source," and "emergency source" shall have the meaning in 310 CMR 22.02:  Public Water System, Primary Source, Backup Source, and Emergency Source.

 

Public Water Supply Distribution Pipeline means any piping used for the conveyance of potable water in a public water system.

 

Public Way means land in use as a public street or highway.

 

Rail Right-of-way means lands or interests in lands which are in use as rights-of-way for rail purposes.  Rail Right-of-way includes rights-of-way which are in use for rail transportation as regulated by M.G.L. c. 161C, and rail rights-of-way which are in use by the Massachusetts Bay Transportation Authority.  Rail Right-of-way does not include related facilities, such as rail yards and rail maintenance facilities.

 

Random Audit means an audit where the subject of the audit was selected using a methodology in which each member of a class has an equal probability of being selected for audit.

 

RCRA means the Federal Solid Waste Disposal Act as revised by the Resource Conservation and Recovery Act of 1976, P.L. 94 - 580, 42 U.S.C. §§ 6901 et seq.


Receptor means a Human Receptor or Environmental Receptor.

 

Record of Decision and ROD each mean the document prepared pursuant to 40 CFR 300.430(f) for a final remedy selection decision under CERCLA.

 

Recreation area (See Park)

 

Reference Concentration (RfC) means the daily concentration in air of an oil or hazardous material which would not be expected to result in any adverse non-cancer health effects.

 

Reference Dose (RfD) means the daily dose of an oil or hazardous material which would not be expected to result in any adverse non-cancer health effects.

 

Release means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into the environment, but excludes:

(a)   emissions from the exhaust of an engine;

(b)   release of source, byproduct, or special nuclear material from a nuclear incident, as those terms are defined in 42 U.S.C. § 2014, if such release is subject to requirements with respect to financial protection established by the Nuclear Regulatory Commission under 42 U.S.C. § 2210;

(c)   the normal application of fertilizer;

(d)   the application of pesticides in a manner consistent with their labelling; and

(e)   the application of residuals in accordance with 310 CMR 32.00:  Land Application of Sludge and Septage.

 

Release Abatement Measure and RAM each means any response actions undertaken in accordance with 310 CMR 40.0440.

 

Release Notification Form means the form required by 310 CMR 40.0333(1)(b) and 310 CMR 40.0371 for purposes of providing written notification of a release or threat of release to the Department.

 

Release Tracking Number means the file number assigned by the Department to a release or threat of release reported in accordance with 310 CMR 40.0300.

 

Remedial Additives - means any aqueous, gaseous, or solid phase agent that is designed to treat or enhance the treatment of, or assessment of, soil and/or groundwater.  The term shall include oxidizing agents, encapsulants, sequestering agents, non-pathogenic microbes, enzymes, nutrients, surfactants, and anti-fouling agents used to inhibit microbial growth in remedial treatment systems and monitoring wells.

 

Remedial Additive By-product  - means any physical, chemical, or biological reaction by-product that results from the application or discharge of Remedial Additives to soil and/or groundwater.

 

Remedial Action means any containment or removal.

 

Remedial Action Plan  each means the document that is prepared in accordance with 310 CMR 40.0861 to justify the selection of a remedial action.

 

Remedial Monitoring Report means a report that documents monitoring data collected on and observations made of the operation and maintenance of an Active Remedial System or Active Remedial Monitoring Program during the applicable reporting period.

 

Remedial Site means a site at which remedial actions have been completed and for which no further remedial actions are planned.


Remedial System means one or more remedial components, Treatment Works, and/or conveyances used to contain, treat and/or remove oil or hazardous material in the environment. Remedial System does not include Exposure Pathway Mitigation Measures.

 

Remedial Technology means a design, measure or engineering practice which comprises, in whole or on part, a remedial action.

 

Remedial Wastewater - means any Contaminated Groundwater and/or Contaminated Surface Water, that is managed, including treatment pursuant to 310 CMR 40.0040.

 

Remediation Waste - means any Uncontainerized Waste, Contaminated Media, and/or Contaminated Debris that is managed pursuant to 310 CMR 40.0030.  Remediation Waste does not include Containerized Waste.

 

Remedy Implementation Plan and RIP each means the document that is prepared in accordance with 310 CMR 40.0874 for implementation of a remedial action.

 

Remove and removal each means the cleanup or removal of released oil or hazardous materials from the environment, such actions as may be necessarily taken in the event of the threat of release of oil or hazardous material into the environment, the disposal of removed oil or hazardous material, or the taking of such other actions as may be necessary to prevent, minimize, or mitigate damage to the health, safety, public welfare or the environment, which may result from a release or threat of release.  Such term includes, without limitation, treatment.

 

Reportable Concentration and RC each means the concentration of oil or hazardous material in soil or groundwater which requires notification to the Department under M.G.L. c. 21E, § 7, and/or 310 CMR 40.0360 through 310 CMR 40.0362.

 

Reportable Quantity and RQ each means the quantity of oil or hazardous material the release of which, or threat of release of which, requires notification to the Department under M.G.L. c. 21E, § 7, and/or 310 CMR 40.0350 through 310 CMR 40.0352.

 

Request for Information and RFI each means a request issued by the Department to any person for documents or other information relevant or material to a release, threat of release, site, vessel, oil or hazardous material, pursuant to M.G.L. c. 21E, §§ 2, 4 and 8, and 310 CMR 40.0165.

 

Requirement means a regulation, order, license, or approval issued or adopted by the Department, or any law which the Department has the authority or responsibility to enforce.

 

Residential Dwelling means a structure used or occupied, or intended to be used or occupied, in whole or in part, as the home or residence of one or more persons, including, but not limited, to single or multi-unit  housing, a dormitory, or a retirement or continuing care facility.  Residential Dwelling does not mean a structure with transient use, such as a hotel or hospital.

 

Residual Contamination means the concentrations of oil and/or hazardous material remaining at a site at which further remedial actions are not required by 310 CMR 40.0000.

 

Respond, Response and Response Action each means assess, assessment, contain, containment, remove or removal.

 

Response Action Contractor and Contractor each means a contractor or subcontractor who provides services associated with response actions to the Department.

 

Response Action Cost and Cost each means any cost incurred by the Department in the course of carrying out or overseeing directly or indirectly a response action, including, but not limited to, costs associated with the conduct of Public Involvement Activities, that is one or more of the following:

(a)   cost of direct hours;

(b)   services provided by Department employees and any related expenses incurred by the Department in support of those direct hours;

(c)   payments made to the Department's contractors, grantees or agents for performing or overseeing response actions at a specific site; and

(d)   any fees or other costs reasonably incurred in connection with a response action, including, but not limited to, fees and other costs associated with requisite federal, state and local permits and litigation costs.

 

Response Action Outcome and RAO each means the classification of Permanent and Temporary Solutions as further defined in 310 CMR 40.1000 in effect prior to June 20, 2014.

 

Response Action Outcome Statement means an LSP Opinion submitted to the Department to document achievement of the requirements of a Response Action Outcome prior to June 20, 2014.

 

Response Action Performance Standard and RAPS each means the level of diligence reasonably necessary to obtain the quantity and quality of information adequate to assess a site, to evaluate remedial action alternatives and to design and implement appropriate remedial actions, as further defined by 310 CMR 40.0191.

 

Responsible Party and RP each means a person who is liable under M.G.L. c. 21E to the Commonwealth, or to any other person, for any costs or damages.

 

Risk Characterization means the requirements and procedures for characterizing risks of harm to health, safety, public welfare and the environment set forth in 310 CMR 40.0900.

 

River means a waterbody contained within a channel, naturally or artificially created, which periodically or continuously contains flowing water or forms a connecting link between two bodies of standing water. 

 

Route of Exposure means a mechanism by which an oil or hazardous material comes into contact with a receptor, including, but not limited to, ingestion, inhalation, dermal absorption and transpiration.

 

School means any public or private elementary or secondary school, other than a Daycare or Child Care Center. 

 

Sediments means all detrital and inorganic or organic matter   situated on the bottom of lakes, ponds, streams, rivers, the ocean, or other surface water bodies.  Sediments are found:

(a)   in tidal waters below the mean high water line as defined in 310 CMR 10.23:  Additional Definitions for 310 CMR 10.21 through 10.37; and

(b)   below the upper boundary of a bank, as defined in 310 CMR 10.54(2), which abuts and confines a water body.

 

Sheen means an iridescent appearance of any oil or waste oil on the surface of any river, stream, lake, pond, spring, impoundment, estuary,  coastal water or groundwater.  The term "sheen" shall not include detrital, inorganic or organic matter located in a terrestrial environment.

 

Significant Public Comment means comment which would appear, on its face, to constitute grounds for the Department to deny a permit or significantly modify a proposed permit decision.

 

Site means any building, structure, installation, equipment, pipe or pipeline, including any pipe discharging into a sewer or publicly-owned treatment works, well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, or any other place or area where oil or hazardous material has been deposited, stored, disposed of or placed, or otherwise come to be located.  The term shall not include any consumer product in consumer use or any vessel.

 

Site Activities and Uses means the uses and activities associated with a disposal site and the surrounding environment, as further defined by 310 CMR 40.0923.


Sludge means the accumulated solids and/or semisolids deposited or removed by the processing and/or treatment of gasses, water or other fluids. 

 

Soil means any unconsolidated mineral and organic matter overlying bedrock that has been subjected to and influenced by geologic and other environmental factors, excluding sediment.

 

Sole Source Aquifer means an aquifer designated by EPA as the sole or principal source of drinking water for an area pursuant to § 1424(e) of the federal Safe Drinking Water Act.

 

Source of OHM Contamination means:

(a)   a point of discharge of OHM into the environment that may include, without limitation:

1.   leaking storage tanks, vessels, drums and other containers;

2.   dry wells or wastewater disposal systems that are not in compliance with regulations governing discharges from those systems; or

(b)   waste deposits, sludges, or impacted soil, sediment, or bedrock at or near a point of discharge or deposit of OHM into the environment containing sorbed OHM or NAPL that is contaminating surrounding environmental media via dissolution or volatilization processes;

except that the downgradient leading edge of a plume of oil and/or hazardous material dissolved in and migrating with groundwater or as vapor-phase shall not, in and of itself, be considered a Source of OHM Contamination.

 

Species of Special Concern means those vertebrate and invertebrate animal species officially listed as species of special concern by the Massachusetts Division of Fisheries and Wildlife under 321 CMR 10.00:  Massachusetts Endangered Species Act Regulations.

 

Statement of Claim and Statement each means an instrument signed by the Commissioner, describing a particular site or sites and naming the person or persons then deemed by the Commissioner to be liable under M.G.L. c. 21E with respect to each such site and their residential addresses, to the extent known to the Commissioner, and declaring a lien upon the property of such person or persons for the payment of amounts due or to become due from such person or persons to the Commonwealth under M.G.L. c. 21E; provided, however, that neither failure to state any such address nor the designation of an incorrect address shall invalidate such statement; and provided, further, that successive statements, naming other persons so deemed to be liable, may be issued.

 

Status Report means an LSP Opinion, including, but not limited to, any plans and reports, required by these regulations or any determination or order to inform the Department as to the status of work in progress at a disposal site.

 

Stream means a body of running water, including brooks and creeks, which moves in a definite channel in the ground due to a hydraulic gradient, and which flows within, into or out of an, as defined in 310 CMR 10.04:  Area Subject to Protection Under the Act.

 

Submittal means a document which any person sends, files, or otherwise delivers to the Department, or is required to send, file or otherwise deliver to the Department, pursuant to M.G.L. c. 21E, 310 CMR 40.0000 or any permit, order or determination issued thereunder.

 

Substantial Hazard means a hazard as further defined in 310 CMR 40.0956 that would pose a significant risk of harm to health, safety, public welfare, or the environment if it continued to be present for several years.

 

Substantial Release Migration and SRM.  (See Condition of Substantial Release Migration)

 

Supplemental Technical Review means a review on the merits of a permit application and supporting materials, as supplemented, modified, or amended by the applicant in response to a statement identifying deficiencies in the application and supporting materials, as further described in 310 CMR 4.04(2)(b)3. and/or 40.1072.


Surface Water means all waters other than groundwater within the jurisdiction of the Commonwealth, including, without limitation, rivers, streams, lakes, ponds, springs, impoundments, estuaries, wetlands, coastal waters and vernal pools.

 

Targeted Audit means an audit where the method used to identify the subject of the audit is any method other than that employed for a random audit and based upon specific criteria established by the Department.

 

Technical Assistance Grant and TAG each means a grant awarded by the Department pursuant to M.G.L. c. 21E, § 14(b), and 310 CMR 40.1400.

 

Technical Review means an initial review on the merits of the permit application and supporting materials, as further described in 310 CMR 4.04(2)(b)2. and 40.1072.

 

Temporary Solution means any measure or combination of measures which will, when implemented, eliminate any substantial hazard which is presented by a disposal site or by any oil and/or hazardous material at or from such site in the environment until a Permanent Solution is achieved.

 

Temporary Solution Statement means an LSP Opinion submitted to the Department to document the achievement of a Temporary Solution in accordance with 310 CMR 40.1000.

 

Threatened Species means those vertebrate and invertebrate animal species officially listed as threatened species by the Massachusetts Division of Fisheries and Wildlife under 321 CMR 10.00:  Massachusetts Endangered Species Act Regulations.

 

Threat of Release means a substantial likelihood of a release of oil and/or hazardous material which requires action to prevent or mitigate damage to health, safety, public welfare or the environment which may result from the release.  Circumstances which represent a threat of release include, but are not limited to, sites containing or conducting an amount of oil and/or hazardous material in excess of the Reportable Quantity for that oil and/or hazardous material, or of an unknown quantity, where no reportable release has occurred but where a person required by 310 CMR 40.0331 to report the threat of release has knowledge of any corrosion, damage, malfunction or other condition that is likely to result in a release.

 

Tier Classification means the requirements, standards and procedures set forth in 310 CMR 40.0500 for classifying a disposal site as either Tier I or Tier II.

 

Tier Classification Submittal means those documents which are required by 310 CMR 40.0510(2) to be submitted to the Department for purposes of Tier Classification.

 

Tier I Permit means any permit, and the terms and conditions stated therein, issued or required by the Department pursuant to M.G.L. c. 21E and 310 CMR 40.0700 prior to June 20, 2014.

 

Total Organic Vapors means the collective concentration of all volatile organic compounds measured by a flame ionization or photoionization detector.

 

Total Petroleum Hydrocarbons and TPH each means the total or cumulative concentration of hydrocarbons with boiling points equal to or greater than 150EC (C9) and associated with a petroleum product, as measured by standard analytical techniques and/or by procedures approved by the Department, excluding the individual compounds listed at 310 CMR 40.0974(2).

 

Trade Secret means anything tangible which constitutes, represents, evidences or records a secret scientific, technical, merchandising, manufacturing, production, or management information, design, process, procedure, formula, invention or improvement.

 


Treatment means any method, technique or process designed to change the physical, chemical or biological character or composition of any oil or hazardous material so as to neutralize the oil or hazardous material or render it less hazardous, non-hazardous, or reduced in volume, including, without limitation, neutralization, incineration, stabilization or solidification.

 

Treatment Works - means any and all devices, processes and properties, real or personal, used to manage Remedial Wastewater, Remedial Additives, and/or Remediation Waste at or from a disposal site.

 

Uncertainty Factor means one or more factors, each generally an order of magnitude, by which a no-observed-adverse-effect level is divided in accordance with EPA-approved methodology to reflect uncertainty in the various types of data used to estimate a Reference Dose.

 

Unclassified Disposal Site means a location confirmed by the Department to be a disposal site prior to October 1, 1993, and which has not been classified in accordance with the Interim Disposal Site Classification System set forth in 310 CMR 40.544, prior to October 1, 1993.

 

Uncontainerized Hazardous Waste means uncontainerized waste that meets the criteria defining a listed or characteristic hazardous waste in 310 CMR 40.0300.

 

Uncontainerized Waste means any discarded oil and/or hazardous material at a disposal site, including, but not limited to, NAPL, that is not contained in drums, tanks, engineered impoundments, or other fabricated containers.

 

Underground Storage Tank means a structure of any size or capacity, including, but not limited to, ancillary piping, that is used or designed to be used for the storage of oil and/or hazardous material where 10% or more of the volume of such structure and piping is below the ground surface, excluding any structure that is  a free standing container in a building.

 

Unit Risk means the Excess Lifetime Cancer Risk (ELCR) estimated to result from continuous exposure to an oil or hazardous material per concentration unit of 1:g/m3 in air or 1 :g/liter in water.

 

Unknown Source means, for the purposes of the Downgradient Property Status provisions at 310 CMR 40.0189, the original location of a release that has migrated in or on groundwater or surface water to a downgradient or downstream property, where the original location has not been established by a preponderance of credible scientific and technical evidence.

 

Upgradient means

(a)   in reference to surface water, the direction perpendicular to lines of equal elevation over a distance in which elevation continuously increases, measured from the point or area in question; or

(b)   in reference to groundwater, the direction perpendicular to lines of equipotential over a distance in which total head continuously increases, measured from the point or area in question.

 

Upgradient Property means a parcel of land which is the source of a release which has come to be located on a parcel of land which is located downgradient thereof.

 

Utility-related Abatement Measure and URAM each means a response action performed in accordance with 310 CMR 40.0460.

 

Vadose Zone means the unsaturated zone below the ground surface and above the water table.

 

Vernal Pool means a water body that has been certified by the Massachusetts Division of Fisheries & Wildlife as a vernal pool.


 

Vernal Pool Habitat means any confined basin depression which, at least in most years, holds water for a minimum of two continuous months during the spring and/or summer, and which are free of adult fish populations, as well as the area within 100 feet of the mean annual boundaries of the depressions, to the extent that the habitat is within an Area Subject to Protection Under the Wetlands Protection Act, as specified in 310 CMR 10.02(1).

 

Vessel means every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.

 

Volatilization means the conversion of all or part of a liquid or solid into vapor.

 

Volatile Organic Compounds and VOCs each mean an organic compound with a boiling point equal to or less than 218EC that are targeted analytes in EPA Method 8260B and other purgeable organic methods specified in the Department's Compendium of Analytical Methods.

 

Waiver of Approvals and Waiver each mean a waiver granted by the Department in accordance with 310 CMR 40.537, prior to October 1, 1993.

 

Waiver Site means any non-priority disposal site for which the Department has approved an application for a Waiver of Approvals that has been counter-signed in accordance with 310 CMR 40.537, as effective prior to October 1, 1993, unless such approval has been withdrawn.

 

Waste Oil means used and/or reprocessed, but not subsequently re-refined, oil that has served its original intended purpose.  Waste oil includes, but is not limited to, used and/or reprocessed fuel oil, engine oil, gear oil, cutting oil, and transmission fluid and dielectric fluid.

 

Water Quality Criteria and Ambient Water Quality Criteria each means the concentrations of oil and/or hazardous material in water developed by EPA pursuant to § 304(a)(1) of the federal Water Pollution Control Act.

 

Water Quality Standards means 314 CMR 4.00:  Massachusetts Surface Water Quality Standards and 314 CMR 6.00:  Ground Water Quality Standards.

 

Waters of the Commonwealth means all waters within the jurisdiction of the Commonwealth, including, without limitation, rivers, streams, lakes, ponds, springs, impoundments, estuaries, wetlands, coastal waters, vernal pools and groundwater.  The term shall not include impoundments of chemical wastes.

 

Watershed means the region or area measured in a horizontal topographic divide which directs surface runoff from precipitation, normally by gravity, into a stream or body of impounded surface water.

 

Water Table means the upper elevation of the surface of the saturated zone.

 

Well means a bored, drilled or driven shaft, or a dig hole, whose depth is greater than its largest surface dimension.

 

Wetland means any area subject to protection under the Wetlands Protection Act, M.G.L. c. 131, § 40, 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 or Section 401 of the federal Water Pollution Control Act, 33 U.S.C. 1341.

 

White Oil means petroleum based oil which contains no aromatic hydrocarbons and is transparent, colorless, odorless and tasteless when cold. Synonyms for white oil include liquid paraffin, liquid petrolatum, USP mineral oil, and vaseline oil.

 

Wildlife means any mammal, bird, reptile, amphibian, fish, or other vertebrate or invertebrate animal species.


 

Zone A means the area adjacent to the bank of a Class A surface drinking water source and its tributaries, as defined in 310 CMR 22.02:  Zone A.

 

Zone B means an area either ½ mile from the bank of a Class A surface drinking water source, or the watershed boundary, whichever is less.

 

Zone I means the area within the protective radius surrounding a public water supply well or wellfield required by 310 CMR 22.00:  Drinking Water.

 

Zone II means that area of an aquifer which contributes water to a well under the most severe pumping and recharge conditions that can be realistically anticipated, as approved by the Department's Division of Water Supply pursuant to 310 CMR 22.00:  Drinking Water.

 

Zone III means that land area beyond the area of Zone II from which surface water and groundwater drain into Zone II.  The surface drainage area, as determined by topography, is commonly coincident with the groundwater drainage area and is used to delineate Zone III.  In some locations, where surface and groundwater drainage are not coincident, Zone III shall consist of both the surface drainage and the groundwater drainage areas.

 

Zone of Saturation means any part of the earth's crust in which all voids are filled with water.

 

40.0007:   Rules of Construction

 

(1)   310 CMR 40.0000 shall be construed to effectuate the purposes of M.G.L. c. 21E.

 

(2)   As used in 310 CMR 40.0000, words in the singular also include the plural.

 

(3)   No provision of 310 CMR 40.0000 shall be construed to relieve any person from any obligation for Response Action Costs or damages related to a site or disposal site for which that person is liable under M.G.L. c. 21E or from any obligation for any administrative, civil or criminal penalty, fine, settlement, or other damages.

 

(4)   No provision of 310 CMR 40.0000 shall be construed to limit the Department's authority to take or arrange for, or to require any person to perform, any response action authorized by M.G.L. c. 21E which the Department deems necessary to protect health, safety, public welfare or the environment.

 

(5)   No provision of 310 CMR 40.0000 shall be construed to limit the Department’s authority to reject or require modification of any submittal required by M.G.L. c. 21E, 310 CMR 40.0000, or any other permit, order, or determination issued thereunder if it determines that the submittal does not meet the requirements of the same.

 

(6)   No provision of 310 CMR 40.0000 shall be construed to imply authorization by the Department to any person other than the Department, or the Department's employees, agents or contractors, to enter any real or personal property not owned by him or her to carry out a response action, or otherwise injure or interfere with any other person's rights or interests in real or personal property, without that person's consent.

 

(7)   The provisions of 310 CMR 40.0000 are severable and if any provision or its application to any person or circumstance is held invalid, its invalidity shall not affect other provisions or applications which can be given effect without the invalid provision or application.

 

(8)   No provision of 310 CMR 40.0000 shall be construed to relieve any person of the necessity of complying with all other applicable federal, state or local laws.

 

(9)   No provision of 310 CMR 40.0000 shall be construed to create in any private party a right to publicly funded response or enforcement action or to create any duty of the Department to perform any response action at any particular time


 

40.0008:   Computation of Time Periods and Deadlines

 

(1)   General.  Unless otherwise specifically provided by law, 310 CMR 40.0000 or any order or determination issued pursuant to M.G.L. c. 21E or 310 CMR 40.0000, any time period or deadline prescribed or referred to in 310 CMR 40.0000 or in any order or determination issued pursuant to M.G.L. c. 21E or 310 CMR 40.0000 shall begin with the first day following the act which initiates the running of the time period, and shall include every calendar day, including the last day of the time period so computed.  If the last day is a Saturday, Sunday, legal holiday, or any other day on which the offices of the Department are closed, the time period shall run to the end of the next business day.

 

(2)   Determining Date of Issuance of Document.  Except as provided by 310 CMR 40.0008(5), each  document given by the Department to a person pursuant to M.G.L. c. 21E and/or 310 CMR 40.0000 shall be deemed to be issued by the Department as follows:

(a)   if served in hand, the  document shall be deemed to be issued on the date when delivered:

1.   personally to the person; or

2.   personally to any officer, employee, or agent of the person authorized by appointment of the person or by law to accept service; or

3.   at the person's last known address in the Commonwealth; or

4.   at the last known address of any officer, employee, or agent of the person authorized by appointment of the person or by law to accept service; or

(b)   if given by mail (either regular mail or certified mail, return receipt requested), the  document shall be deemed to be issued  on the date of mailing.

 

(3)   Determining Date of Receipt of Document Issued by the Department.  Each  document given by the Department to a person pursuant to M.G.L. c. 21E and/or 310 CMR 40.0000 shall be deemed to be received by said person as follows:

(a)   if served in hand, the  document shall be deemed to be received when delivered:

1.   personally to the person; or

2.   personally to any officer, employee, or agent of the person authorized by appointment of the person or by law to accept service; or

3.   at the person's last known address in the Commonwealth; or

4.   at the last known address of any officer, employee, or agent of the person authorized by appointment of the person or by law to accept service; or

(b)   if given by certified mail, return receipt requested, the document shall be deemed to be received either:

1.   when signed for by:

a.   the person; or

b.   the person's officer, employee, or agent, including, without limitation, any officer, employee, or agent, authorized by appointment of the person or by law to accept service;

2.   when returned by the U.S. Postal Service to the Department as unclaimed, unless the Department is persuaded that the  document was not claimed for reasons beyond the control of the person to whom the  document was sent;

(c)   if given by regular mail, the  document shall be deemed to be received no later than the third business day after it is mailed to the person, unless the Department is persuaded otherwise by the person to whom the  document was mailed.

 

(4)   Determining Date of Receipt of Document Submitted to the Department.  Except as provided by 310 CMR 40.0008(5), each document required by, or submitted pursuant to, 310 CMR 40.0000 shall be deemed received by the Department as follows:

(a)   if served in hand, the document shall be deemed to be received on the date when delivered to the appropriate regional office of the Department (i.e. the date stamped received), unless the date stamped is rebutted by production of a receipt from the Department; provided, however, that if the date stamped reflects a date within seven days of the date the submittal is due, the submittal shall be deemed to have been received by the due date;

(b)   if given by regular mail, the document shall be deemed to be received when delivered to the appropriate office of the Department (i.e. the date stamped received); provided, however, that if the date stamped reflects a date within seven days of the date the submittal is due, the submittal shall be deemed to have been received by the due date;

(c)   if given by certified mail, return receipt requested, the document shall be deemed to be received when delivered to the appropriate office of the Department (i.e. the date stamped received), unless the date stamped is rebutted by production of the return receipt; provided, however, that if the date stamped reflects a date within seven days of the date the submittal is due, the submittal shall be deemed to have been received by the due date; or

(d)   if given by electronic transmission, where the Department provides for submitting the document by such means, the document shall be deemed to be received on the date the transmission is delivered to the Department, except as provided in 310 CMR 40.0008(4)(d)1.:

1.   if the date the transmission is delivered to the Department is within seven days of the date the submittal is due, the submittal shall be deemed to have been received by the due date;

2.   for documents submitted electronically, submission of a printed copy to the Department shall not be required.

 

(5)  Exceptions.

(a)   Adjudicatory Proceedings.  Documents required or permitted to be filed under 310 CMR 1.00: Adjudicatory Proceedings, and 310 CMR 5.00: Administrative Penalty, shall be filed in accordance with 310 CMR 4.00:  Timely Action Schedule and Fee Provisions.

(b)   Interim Deadlines and Notices of Noncompliance.  For purposes of determining whether a person has complied with an Interim Deadline or come into compliance with a requirement by the date specified in a Notice of Noncompliance, each document required to be submitted shall be deemed received by the Department as follows:

1.   if served in hand, the document shall be deemed to be received on the date when delivered to the appropriate office of the Department (i.e. the date stamped received), unless the date stamped is rebutted by production of a receipt from the Department;

2.   if given by regular mail, the document shall be deemed to be received on the date when delivered to the appropriate office of the Department (i.e. the date stamped received);

3.   if given by certified mail, return receipt requested, the document shall be deemed to be received when delivered to the appropriate office of the Department (i.e. the date stamped received), unless the date stamped is rebutted by production of the return receipt; or

4.   if given by electronic transmission, the document shall be deemed to be received on the date the transmission is delivered to the Department.

(c)   Presumptive Approval of IRAs.  Each written request for approval of an IRA shall be given to the Department by electronic transmittal, certified mail, return receipt requested, or served in hand.  Each such submittal shall be deemed received by the Department as follows:

1.   if served in hand, the document shall be deemed to be received on the date when delivered to the appropriate office of the Department (i.e. the date stamped received), unless the date stamped is rebutted by production of a receipt from the Department;

2.   if given by certified mail, return receipt requested, the document shall be deemed to be received when delivered to the appropriate office of the Department (i.e. the date stamped received), unless the date stamped is rebutted by production of the return receipt; or

3.   if given by electronic transmission, the document shall be deemed to be received on the date the transmission is delivered to the Department.

(d)   Notification of Releases, Threats of Release and Imminent Hazards.  Each notification required by 310 CMR 40.0300 shall be given to the Department (i.e. received) as follows:

1.   if given orally, the notification shall be deemed to be received on the date and at the time when communicated in person or by telephone;

2.   if given in writing and served in hand, the notification shall be deemed to be received on the date when delivered to the appropriate office of the Department (i.e. the date stamped received), unless the date stamped is rebutted by production of a receipt from the Department;


3.   if given in writing by regular mail, the notification shall be deemed to be received on the date when delivered to the appropriate office of the Department (i.e. the date stamped received);

4.   if given in writing by certified mail, return receipt requested, the notification shall be deemed to be received on the date when delivered to the appropriate office of the Department (i.e. the date stamped received), unless the date stamped is rebutted by production of the return receipt; or

5.   if given by electronic transmission, the notification shall be deemed to be received on the date the transmission is delivered to the Department.

 

40.0009:   Certification of Submittals

 

(1)   Any person undertaking a response action shall include the following written declaration when expressly required by 310 CMR 40.0000, including, but not limited to, with any Release Notification Form, Status Report, Completion Statement, Phase V Report, Permanent or Temporary Solution Statement, Tier Classification Submittal, LSP Evaluation Opinion, Tier Classification Extension Submittal, Tier Classification Transfer Submittal, Periodic Review Opinion, Final Inspection Report, Construction Plan and Specifications, Operation, Maintenance and/or Monitoring Plan, Bill of Lading, Downgradient Property Status Submittal, Modification of  Downgradient Property Status Submittal, or other LSP Opinion submitted to the Department pursuant to the MCP:

 

"I, _______________,  attest under the pains and penalties of perjury (i) that I have personally examined and am familiar with the information contained in this submittal, including any and all documents accompanying this submittal, (ii) that, based on my inquiry of those individuals immediately responsible for obtaining the information, the material information contained in this submittal is, to the best of my knowledge and belief, true, accurate and complete, and (iii) that I am fully authorized to make this attestation on behalf of the person or entity legally responsible for this submittal.  I/the person or entity on whose behalf this submittal is made am/is aware that there are significant penalties, including, but not limited to, possible fines and imprisonment, for willfully submitting false, inaccurate or incomplete information."

By: ________________________

                                Signature      Date

 

    ________________________

Title

 

For:_________________________

Name of person or entity

 

(2)   The written declaration in 310 CMR 40.0009(1) required of a person undertaking a response action shall be made by the highest ranking individual(s) having day-to-day responsibility for the performance of the response action which is the subject of the submittal.  The written declaration shall not be made by the Licensed Site Professional engaged or employed by the RP, PRP or Other Person to render Professional Services with respect to the site, unless the Licensed Site Professional's client or employer has authorized him or her in writing to act as his or her agent for the purpose of making the written declaration.

 

(3)   The written declaration required by 310 CMR 40.0009(1) shall include the signature of each person making the submittal, the date on which each such person makes his or her attestation and the position or office of each such person.

 

(4)   Each submittal filed with the Department pursuant to 310 CMR 40.0000 shall be accompanied by a completed transmittal form established by the Department for such purposes.

 

(5)  No person filing a submittal required by M.G.L. c. 21E or 310 CMR 40.0000 with the Department shall alter, modify or nullify the contents of the transmittal form established by the Department for such purposes without the express approval of the Department.

 

(6)  The Department may require any person providing information required to be submitted to the Department pursuant to M.G.L. c. 21E, 310 CMR 40.0000, or any order issued or determination made by the Department pursuant to M.G.L. c. 21E and 310 CMR 40.0000, to include the written declaration set forth in 310 CMR 40.0009(1).

 

40.0010:   Effect of Orders and Appeals

 

(1)   The issuance of an order under M.G.L. c. 21E, §§ 9 or 10, or any appeal of an order issued under M.G.L. c. 21E, § 9, shall not prevent the Department from issuing any future order(s) or from taking any other action authorized by law, including, but not limited to, taking or arranging for one or more response actions at the disposal site which is the subject of the order on appeal.

 

(2)   While an appeal from an order issued under M.G.L. c. 21E, § 9, is pending, the Department may provide, pursuant to M.G.L. c. 21E, § 10(b), for the order or any part thereof to become provisionally effective and enforceable immediately if the Department finds that an Imminent Hazard exists or could result pending avoidable delay in compliance.

 

(3)   If the event described in 310 CMR 40.0010(2) occurs, those parts of the order which become provisionally effective and enforceable immediately shall not be subject to the provisions of M.G.L. c. 30A, or any other law, governing adjudicatory proceedings.  Any person who receives and complies with the terms of such an order may petition the Department for reimbursement for the reasonable costs of such compliance in accordance with M.G.L. c. 21E, § 10(b)(2), and 310 CMR 40.1200.

 

(4)   While an appeal from a permit decision or order is pending, the Department may undertake such response actions as it deems reasonably necessary to protect health, safety, public welfare or the environment.

 

40.0011:   Confidentiality of Information

 

(1)   Any information, document, or particular part thereof, obtained by the Department or its Contractors pursuant to M.G.L. c. 21E, upon request shall be confidential, and shall not be considered to be a public record, when it is determined by the Commissioner in accordance with 310 CMR 3.00:  Access to and Confidentiality of Department Records and Files that such information, record, or particular part thereof, relates to secret processes, methods of manufacture or production, or that such information, record, or particular part thereof, if made public, would divulge a trade secret.

 

(2)   The Department shall be under no obligation to act upon any such request for confidentiality that is not made and substantiated in accordance with 310 CMR 3.24:  Requests for Protecting the Confidentiality of Trade Secrets.

 

(3)   310 CMR 40.0011 shall not prevent disclosure of any information necessary for an enforcement or cost recovery action or to comply with CERCLA or FWPCA or as otherwise provided by 310 CMR 3.00:  Access to and Confidentiality of Department Records and Files.

 

40.0013:   Presumption of Irreparable Harm

 

      Any violation of M.G.L. c. 21E, 310 CMR 40.0000, or any order or determination issued thereunder, shall be presumed to constitute irreparable harm to health, safety, public welfare, and the environment.  Such presumption may be rebutted by a preponderance of the evidence.

 

40.0014:   Document Retention

 

(1)   General Requirements.  Each person who submits one or more LSP Opinions to the Department shall preserve and maintain, or arrange for the preservation and maintenance of, all documents in his or her possession, custody or control, and shall arrange for the preservation and maintenance of all documents prepared or received by the Licensed Site Professional who rendered the LSP Opinion in the course of providing Professional Services pertaining to the site, that are material to the LSP Opinion, including, but not limited to, documents of sufficient detail to substantiate the facts, data, conclusions and other information set forth in the LSP Opinion and any other documents material to the qualifications and limitations set forth therein.  Such documents shall be kept at one or more locations reasonably accessible to the Department and in such form as to enable the Department to ascertain whether the response actions which are the subject of the LSP Opinion have been performed in compliance with the provisions of M.G.L. c. 21E, 310 CMR 40.0000 and any permit or order issued thereunder.  Each such person shall make those documents available to the Department for inspection upon request.  For purposes of 310 CMR 40.0014(1), the "person who submits one or more LSP Opinions to the Department" refers to the RP, PRP or Other Person who employed or engaged the LSP whose LSP Opinion is the subject of the submittal.

 

(2)   Period of Retention.  Any person required by 310 CMR 40.0014(1) to preserve and maintain any document shall preserve and maintain those documents until at least five years has passed since the date of the Department's receipt of either a Permanent Solution Statement or No Further Action Letter for the disposal site that is the subject of the submittal, or for the duration of the design life of the Permanent Solution, whichever is later.  For purposes of 310 CMR 40.0014(2), the term "design life" means the period of time during which any physical structures are intended to maintain a level of No Significant Risk at a disposal site, as stated in a Permanent Solution Statement or No Further Action Letter. 

 

40.0015:   Content of Waste Site Cleanup Activity Opinions

 

(1)   Each and every LSP Opinion submitted to the Department pursuant to M.G.L. c. 21E or 310 CMR 40.0000 shall bear the signature and seal of the LSP who rendered the LSP Opinion and the date on which the LSP Opinion was rendered.

 

(2)   An LSP rendering an LSP Opinion for submittal to the Department shall:

(a)   identify in the LSP Opinion the material facts, data and other information known by him or her about the disposal site that is pertinent to the LSP Opinion; and

(b)   disclose and explain in the LSP Opinion the material facts, data, other information, and qualifications and limitations known by him or her which may tend to support or lead to an LSP Opinion contrary to, or significantly different from, the one expressed.

 

(3)   The submittals required by 310 CMR 40.0000, which are LSP Opinions, include, but are not limited to, the following:

(a)   any Status Report submitted in accordance with 310 CMR 40.0000, including, but not limited to:

1.   any Immediate Response Action Status Report submitted pursuant to 310 CMR 40.0425;

2.   any Release Abatement Measure Status Report submitted pursuant to 310 CMR 40.0445;

3.   any Utility-related Abatement Measure Status Report submitted pursuant to 310 CMR 40.0465;

(b)   any Completion Statement submitted pursuant to 310 CMR 40.0000, including, but not limited to:

1.   any Immediate Response Action Completion Statement submitted pursuant to 310 CMR 40.0427, except as otherwise provided pursuant to 310 CMR 40.0411(3);

2.   any Release Abatement Measure Completion Statement submitted pursuant to 310 CMR 40.0446;

3.   any Utility-related Abatement Measure Completion Statement submitted pursuant to 310 CMR 40.0466;

4.   any Phase I Completion Statement submitted pursuant to 310 CMR 40.0484;

5.   any Phase II Completion Statement submitted pursuant to 310 CMR 40.0836;

6.   any Phase III Completion Statement submitted pursuant to 310 CMR 40.0862;

7.   any Phase IV Completion Statement submitted pursuant to 310 CMR 40.0879; and

8.   any Phase V Completion Statement submitted pursuant to 310 CMR 40.0893;

(c)   any Phase Report submitted pursuant to 310 CMR 40.0000, including, but not limited to:

1.   any Scope of Work submitted pursuant to 310 CMR 40.0510(2)(f) or 310 CMR 40.0834;

2.   any Phase II Report submitted pursuant to 310 CMR 40.0835;

3.   any Remedial Action Plan submitted pursuant to 310 CMR 40.0861;

4.   any Notice of Commencement of Work submitted pursuant to 310 CMR 40.0870;

5.   any Remedy Implementation Plan submitted pursuant to 310 CMR 40.0874;

6.   any Final Inspection Report submitted pursuant to 310 CMR 40.0878;

7.   any Phase IV Status and Remedial Monitoring Report submitted pursuant to 310 CMR 40.0877;

8.   any Phase V Status and Remedial Monitoring Reports submitted pursuant to 310 CMR 40.0892; and

9.   any As-built Construction Report submitted pursuant to 310 CMR 40.0875;

(d)   any Immediate Response Action Plan submitted pursuant to 310 CMR 40.0424, except as otherwise provided pursuant to 310 CMR 40.0411(2);

(e)   any Release Abatement Measure Plan submitted pursuant to 310 CMR 40.0444;

(f)   any Permanent Solution Statement or Temporary Solution Statement submitted pursuant to 310 CMR 40.1000, except as otherwise provided pursuant to 310 CMR 40.1056(1)(g);

(g)   any LSP Tier Classification Opinion submitted pursuant to 310 CMR 40.0500;

(h)   any Periodic Review Opinion submitted pursuant to 310 CMR 40.1050;

(i)   any Activity and Use Limitation Opinion submitted pursuant to 310 CMR 40.1000;

(j)   any Audit Follow-up Plan submitted pursuant to 310 CMR 40.1160;

(k)   any Post-Audit Completion Statement submitted pursuant to 310 CMR 40.1170;

(l)   any Downgradient Property Status Opinion submitted pursuant to 310 CMR 40.0180; and

(m)   any Remedy Operation Status Opinion submitted pursuant to 310 CMR 40.0893.

 

(4)   No provision in the MCP is intended to render an LSP Opinion a warranty or guaranty; provided, however, that an Opinion shall be considered a representation:

(a)   that the  Professional Services associated therewith were provided in accordance with the applicable standards of care;

(b)   that the response action(s) which is (are) the subject of the Opinion was (were) performed in accordance with the applicable provisions of M.G.L. c. 21E, 310 CMR 40.0000, and any DEP order(s), permit(s) or approval(s); and

(c)   that the conclusion(s) expressed therein is (are) based upon the rendering LSP's professional judgment and reflect his or her knowledge, information and belief.

 

(5)   Any rider annexed to an LSP Opinion concerning professional liability exposure shall be deemed void by the Department for enforcement purposes to the extent that it is inconsistent with 310 CMR 40.0009(4) or otherwise serves to compromise or diminish the content or meaning of the Opinion for the Department's purposes under M.G.L. c. 21E and/or the MCP.  The Department's receipt, acceptance or approval of any document which contains such a rider, shall not be construed to imply Department approval or endorsement of the liability management mechanism or practice contained therein or the content thereof.

 

(6)   No provision in 310 CMR 40.0000 shall be construed to require that an LSP render a conclusion as to whether a person performing a response action has complied with a deadline or time period for the rendering of an LSP Opinion established by, or pursuant to, 310 CMR 40.0000.

 

(7)   Electronic Submittal of Waste Site Cleanup Activity Opinions.

(a)   On or after January 1, 2009, all LSP Opinions shall be submitted to the Department electronically on a form established by the Department for such purposes.

(b)   The date of receipt of LSP Opinions by the Department shall be determined as specified in 310 CMR 40.0008(4).

(c)   For LSP Opinions submitted electronically, submission of a printed copy to the Department shall not be required.

 

(40.0016:   Laboratory Certification:   Reserved)


 

40.0017:   Environmental Sample Collection and Analyses

 

(1)   Any person undertaking response actions under the provisions of this Contingency Plan shall ensure that analytical and environmental monitoring data used in support of recommendations, conclusions, or LSP Opinions with respect to assessment, removal, or containment actions is scientifically valid and defensible, and of a level of precision and accuracy commensurate with its stated or intended use.

 

(2)   Procedures and methodologies employed for the collection and analysis of soil, sediment, water, vapor, air, and/or waste samples shall consist of:

(a)   methods published by the Department, EPA, the American Society for Testing and Materials (ASTM), the American Public Health Association (APHA), the National Institute for Occupational Safety and Health (NIOSH), the American Water Works Association (AWWA), and other organizations with expertise in the development of standardized analytical testing methods;

(b)   modification of published methods, provided that all modifications are completely documented; or

(c)   unpublished methods, including analytical screening methods, provided that such methods are scientifically valid, are of a known and demonstrated level of precision and accuracy, and are completely described and documented in response action submittals.

 

(3)   All response action submittals to the Department under these regulations that contain the results of sample collection and analyses shall include the following information:

(a)  the date, location, and time of sampling, and the name of the individual who collected the sample;

(b)   specifications on any sample filtration or preservation procedures;

(c)   the date of receipt of the sample at the laboratory, and the date(s) the sample was extracted and/or analyzed;

(d)   the name and address of the laboratory, and the certification identification number and status of the laboratory, if certified;

(e)   the sample matrix description and identification number(s);

(f)   the sample preparation and/or analytical method(s) employed;

(g)   the results of the analysis, in clearly expressed concentration units;

(h)   the detection limit of each reported analyte based upon actual analytical conditions;

(i)   details on any known conditions or findings which may effect the validity of analytical data, including unsatisfactory results obtained on quality assurance/ quality control blank, duplicate, surrogate or spiked samples; and

(j)   any other information or data which may be required to explain or document provided data, including chain of custody forms, where appropriate, or other information requested by the Department based upon its review and evaluation of submitted documents.

 

(4)   Laboratory and other reports of sampling analyses of aqueous samples shall be reported as mass per unit volume and solid samples shall be reported as mass per unit mass, on a dry weight basis, unless other reporting units are more appropriate.

 

(5)   Any person undertaking response actions shall ensure that sample collection and analyses is performed by persons who are qualified by education, training and experience.

 

(6)   Any time environmental samples are taken at a property by a person(s) conducting response action(s), other than on behalf of the owner of the property, the person(s) conducting  response actions shall comply with the notification provisions of 310 CMR 40.1403(10).

 

40.0018:   Health and Safety Procedures

 

(1)   Any person undertaking response actions shall implement health and safety procedures designed to protect health, safety, public welfare and the environment during the performance of response actions.  Such procedures shall include, without limitation, the following:

(a)   measures to protect sensitive human populations from exposure to oil and/or hazardous material;

(b)   the institution of air monitoring activities, if necessary, to protect the public from exposure to gases and air-borne particulates;

(c)   measures that may be necessary to contain oil and/or hazardous material during the performance of response actions, including:

1.   measures to control dust and other environmental media (e.g. wetting soils);

2.   measures to decontaminate vehicles and equipment to minimize the spread of contaminated soil from the disposal site;

3.   measures to secure on-site excavations and stockpiles of contaminated materials; and

4.   discontinuance of response actions where necessary to protect public health and safety.

 

(2)   The scope and detail of health and safety procedures shall be commensurate with the degree and nature of the risks posed to human and ecological populations by the disposal site and/or response actions.  Standardized health and safety plans may be appropriate for routine activities conducted during response actions.

 

(3)   Any person undertaking a response action shall ensure that a worker health and safety plan is implemented to the extent required by the federal Occupational Safety and Health Administration (OSHA) under the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., and any other applicable federal, state or local law.

 

40.0019:   Violations of Environmental Restrictions

 

(1)   No person shall violate, suffer, allow or cause any person to violate, an Environmental Restriction or other covenant held by the Department pursuant to M.G.L. c. 21E, § 6.

 

(2)   For purposes of identifying and holding persons responsible for Response Action Costs and damages arising out of the violation of an Environmental Restriction or other covenant held by the Department pursuant to M.G.L. c. 21E, § 6, the Department shall consider taking action against only those persons who have violated, suffered, allowed or caused such persons to violate, the Environmental Restriction or other restrictive covenant.  In determining whether to initiate enforcement action against any other person who may be liable for such costs or damages under M.G.L. c. 21E, the Department shall consider each of the following:

(a)   whether the Environmental Restriction or other restrictive covenant has been recorded and/or registered with the appropriate registry of deeds and/or land registration office in accordance with 310 CMR 40.1070 through 40.1099;

(b)   whether a level of No Significant Risk that relies on the Environmental Restriction or other Covenant has existed or has been achieved at the disposal site as set forth in the Permanent or Temporary Solution Statement;

(c)   whether such person has taken appropriate steps to prevent the violation; and

(d)   any other factor the Department deems relevant.  

 

(3)   No provision of 310 CMR 40.0000 shall be construed to limit the Department's authority to take or arrange, or to require any person to perform, any response action authorized by M.G.L. c. 21E which the Department deems necessary to protect health, safety, public welfare or the environment.

 

(4)   No provision of 310 CMR 40.0000 shall be construed to relieve any person from any obligation for Response Action Costs or damages related to a site or disposal site for which that person is liable under M.G.L. c. 21E or from any obligation for any administrative, civil or criminal penalty, fine, settlement, or other damages.

 

40.0020:   Violations of a Permanent Solution or Temporary Solution

 

(1)   If the activities, uses, and/or exposures upon which a Permanent Solution or Temporary Solution  Statement is based change at any time to cause human or environmental exposure, or an increased potential for human or environmental exposure, to oil and/or hazardous material, without an evaluation by an LSP in accordance with 310 CMR 40.1080, where applicable, and without additional response actions, if necessary, to achieve or maintain a condition of No Significant Risk or No Substantial Hazard, then the owner and operator of the property or properties subject to the Permanent Solution or Temporary Solution Statement at the time that the activities, uses, and/or exposures change, and any person liable under M.G.L. c. 21E for the disposal site who has knowledge of such, shall:

(a)   notify the Department, in accordance with the procedures set forth in 310 CMR 40.0300, immediately upon gaining knowledge of any of the following:

1.   any such change in activity, use and/or exposure;

2.   any level of oil and/or hazardous material above an applicable Reportable Concentration;

3.   any release and/or threat of release of oil and/or hazardous material that results from any such change in activity or use; or

4.   any Imminent Hazard that results from such activities, uses, and/or exposures; and

(b)   undertake any and all response actions required by M.G.L. c. 21E and 310 CMR 40.0000.

 

(2)   For purposes of identifying and holding persons responsible for Response Action Costs and damages arising out of the violation of 310 CMR 40.0020(1), the Department shall consider taking action only against those persons who violated, suffered, allowed or caused such persons to violate, such provision. In determining whether to initiate enforcement action against any other person who may be liable for such costs or damages under M.G.L. c. 21E, the Department shall consider the factors set forth in 310 CMR 40.0019(2).

 

(3)   No provision of 310 CMR 40.0000 shall be construed to limit the Department's authority to take or arrange, or to require any RP or PRP to perform, any response action authorized by M.G.L. c. 21E which the Department deems necessary to protect health, safety, public welfare or the environment.

 

(4)   No provision of 310 CMR 40.0000 shall be construed to relieve any person from any obligation for Response Action Costs or damages related to a site or disposal site for which that person is liable under M.G.L. c. 21E or from any obligation for any administrative, civil or criminal penalty, fine, settlement, or other damages.

 

40.0021:   Unlawful Interference with Response Actions

 

      No person shall falsify, tamper with, alter, destroy, disturb or otherwise unlawfully interfere with any response action, including, but not limited to, any recovery or control mechanism or system, or any monitoring device or method, which any person has undertaken, is undertaking or intends to undertake, or which any person is required to perform or maintain, pursuant to M.G.L. c. 21E, 310 CMR 40.0000 or any order or determination issued by the Department.

 

40.0022:   Accurate and Timely Submittal of Documents

 

(1)   Except as provided by 310 CMR 40.0025, each person who is required by M.G.L. c. 21E, 310 CMR 40.0000 or any order or determination of the Department, to make one or more submittals to the Department shall make each submittal by the deadline or within the time period imposed therein. 

 

(2)   No person shall make, or cause any person to make, any false, inaccurate, incomplete or misleading statement in any  document which that person submits, or causes any person to  submit, to the Department pursuant to M.G.L. c. 21E, 310 CMR 40.0000 or any order or determination issued by the Department.

 

40.0023:   Accurate and Complete Record-keeping

 

(1)   No person shall make, or cause any person to make, any false, inaccurate, incomplete or misleading statement in any  document which that person keeps or is required to keep pursuant to M.G.L. c. 21E, 310 CMR 40.0000 or any permit or order issued by the Department.

 

(2)   No person shall knowingly fail to fully complete any document that such person is required to submit to the Department pursuant to M.G.L. c. 21E, 310 CMR 40.0000 or any permit or order issued by the Department.


 

40.0024:   Timely Action and Anticipatory Noncompliance

 

(1)   Except as provided by 310 CMR 40.0025 and 40.0172, each person undertaking one or more response actions shall perform each such response action, or portion of a response action, by the deadline for taking the action imposed by M.G.L. c. 21E, 310 CMR 40.0000 or any order or determination issued by the Department.

 

(2)   In the event that the Department finds that a person who is undertaking a response action will likely fail to comply with any deadline for taking such action imposed by 310 CMR 40.0000 or any order or determination issued by the Department, the Department may require that person to provide the Department with reasonable assurance of his or her ability to perform the action in a timely manner, including, a compliance schedule, financial assurance and such other assurances as the Department reasonably deems necessary.

 

(3)   310 CMR 40.0024(2) shall not be construed to limit the Department's authority to establish Interim Deadlines in accordance with 310 CMR 40.0167.

 

40.0025:   Extensions of Deadlines and Time Periods for Force Majeure

 

(1)   Except as provided by 310 CMR 40.0025(2), if any force majeure occurs which causes or contributes to any delay in compliance with any deadline or time period specified in M.G.L. c. 21E, 310 CMR 40.0000 or any order or determination issued by the Department, except a deadline or time period for providing notification of a release or threat of release of oil and/or hazardous material, or an Imminent Hazard, as required by 310 CMR 40.0300, the person(s) who is responsible for performing the response action shall notify the Department in writing promptly upon learning of the delay, and prior to the running of any such deadline or time period, and state the anticipated length and cause of the delay, the measure or measures to be taken to minimize the delay and a timetable for implementing those measures, and shall take appropriate measures to avoid or minimize any delay.

 

(2)   Notwithstanding 310 CMR 40.0025(1), in the event of any delay in compliance with a deadline established by 310 CMR 40.0560, the person undertaking response actions shall comply with the requirements and procedures set forth in 310 CMR 40.0560.

 

40.0027:   Remedial Monitoring Report

 

(1)   For a disposal site for which the requirement to submit Remedial Monitoring Reports applies as of April 3, 2006, the first Remedial Monitoring Report shall be submitted:

(a)   on the monthly anniversary of the submittal of the first Status Report for the  remedial action when the remedial action is addressing an Imminent Hazard or Condition of Substantial Release Migration; or

(b)   concurrently with the submittal of the next Status Report for the remedial action when the remedial action is addressing conditions that do not pose an Imminent Hazard or Condition of Substantial Release Migration.

 

(2)   Except as provided at 310 CMR 40.0027(3), a Remedial Monitoring Report shall document all monitoring and operational information relevant to the Active Operation and Maintenance of an Active Remedial System or Active Remedial Monitoring Program during the reporting period and since the submittal of any previous Remedial Monitoring Report.  Such information includes, as applicable:

(a)   operating status of Active Remedial Systems, including any system shutdown and the date/duration of shutdown;

(b)   date(s) and number of monitoring events;

(c)    effluent concentrations;

(d)   identification of any discharges above permissible discharge concentrations;

(e)   recovery rates and/or volumes;

(f)   discharge volumes;

(g)   date, location, type, and volume of Remedial Additives applications;

(h)   groundwater data; and/or

(i)   related maps, graphs or diagrams;

 

(3)   Remedial Monitoring Reports shall not be required for Active Operation and Maintenance of an Active Remedial System or Active Remedial Monitoring Program that is limited to window fans deployed to vent vapors within a building.  Information related to the operation of such window fans shall be included in the next applicable Status Report.

 

(4)   Prior to April 3, 2007, Remedial Monitoring Reports may be submitted to the Department either electronically or as a printed copy.

 

(5)   The date of receipt of a Remedial Monitoring Report by the Department shall be determined as specified in 310 CMR 40.0008(4).

 

(6)   For Remedial Monitoring Reports submitted electronically, submission of a printed copy to the Department shall not be required.

 

(7)   Effective Date on and after which All Remedial Monitoring Reports Must Be Submitted Electronically.  On or after April 3, 2007, all Remedial Monitoring Reports must be submitted to the Department electronically on a form established by the Department for such purposes.

 

40.0028:   Well Maintenance and Security

 

      Any well installed or constructed for the purposes of sampling, monitoring or remediating environmental media or environmental conditions as part of response actions conducted under the MCP shall be maintained and secured throughout its period of service to prevent the introduction of contaminants to the subsurface environment or the exacerbation of groundwater contamination by the vertical movement of water within the borehole or annular space.

 

 

40.0030:   Management Procedures for Remediation Waste

 

      The provisions of 310 CMR 40.0031 through 40.0039, cited collectively as 310 CMR 40.0030, establish requirements and procedures for the management of Remediation Waste.

 

40.0031:   General Provisions for the Management of Remediation Waste

 

(1)   RPs, PRPs, and Other Persons undertaking response actions shall manage Remediation Waste in a manner that ensures the protection of health, safety, public welfare and the environment, and shall handle, store, transport, treat, recycle, reuse, dispose, or discharge Remediation Waste in compliance with the provisions of 310 CMR 40.0030 and all other applicable federal, state, and local laws, regulations, and bylaws.

 

(2)   RPs, PRPs, and Other Persons conducting response actions shall consign, convey and/or transport Remediation Waste only to facilities and locations licensed, permitted, or approved to accept such materials by appropriate federal, state or local authorities.

 

(3)   Response actions involving Remediation Waste which are conducted within the boundaries of a disposal site in compliance with the provisions of 310 CMR 40.0000 shall be considered, for the purposes of 310 CMR 30.801(11), remedial actions initiated by the Department under the provisions of M.G.L. c. 21E, except for those response actions involving Uncontainerized Hazardous Waste for which the Department has made a determination, pursuant to 310 CMR 40.0033(5), to require compliance with all or part of 310 CMR 30.000:  Hazardous Waste.  Otherwise, a valid license issued pursuant to M.G.L. c. 21C and 310 CMR 30.000:  Hazardous Waste shall not be required to manage Remediation Waste within the boundaries of a disposal site, provided such Remediation Waste is managed in compliance with M.G.L. c. 21E and 310 CMR 40.0000.

 

(4)   Response actions involving soil, groundwater, and Remediation Waste which are conducted in compliance with the provisions of 310 CMR 40.0032(3), 40.0034, and 40.0045(6) are deemed to be response actions conducted in compliance with the approval provisions of M.G.L. c. 21E for the purposes of 310 CMR 30.252(2).

 

(5)   Remediation Waste which meet the criteria defining a listed hazardous waste or which are themselves a characteristic hazardous waste shall be accumulated, treated, and stored or otherwise managed at a disposal site in a manner that achieves a level of control and protection equivalent to that provided by the technical and management requirements of 310 CMR 30.000:  Hazardous Waste.

 

(6)   Remediation Waste, Containerized Waste, and Uncontainerized Waste which meet the criteria defining a listed or characteristic hazardous waste shall, when transported from a disposal site, comply with the requirements of 310 CMR 30.000:  Hazardous Waste.

 

(7)   All Remediation Waste shall be removed from a disposal site as soon as possible, and in all cases:

(a)   within 120 days of its initial excavation or collection, unless it is managed in accordance with an Immediate Response Action Plan, Release Abatement Measure Plan, or Remedy Implementation Plan submitted to the Department within this 120 day timeframe that provides specific actions, schedule and procedures for on-site storage, treatment, reuse, or recycling of such Remediation Waste ; or

(b)   within 90 days of its initial excavation or collection if such Remediation Waste meets the criteria defining a listed or characteristic hazardous waste.

 

40.0032:   Contaminated Media and Contaminated Debris

 

(1)   Contaminated Media and Contaminated Debris containing oil and/or waste oil at levels equal to or greater than an applicable Reportable Concentration specified in 310 CMR 40.0300 and 40.1600, and that are not otherwise a hazardous waste, shall be managed in compliance with the provisions of 310 CMR 30.252(1) or, in accordance with the provisions of 310 CMR 30.252(2), shall be managed under the Bill of Lading process described in 310 CMR 40.0034 or under a Hazardous Waste Manifest in accordance with 310 CMR 30.000, when they are transported from a disposal site.

 

(2)   Contaminated Media and Contaminated Debris containing one or more hazardous materials at levels equal to or greater than an applicable Reportable Concentration  specified in 310 CMR 40.0300 and 40.1600, and which are not a hazardous waste, shall be managed under the Bill of Lading process described in 310 CMR 40.0034 or under a Hazardous Waste Manifest in accordance with 310 CMR 30.000 when they are transported from a disposal site.

 

(3)   Soils containing oil or waste oil at concentrations less than an otherwise applicable Reportable Concentration and that are not otherwise a hazardous waste, and soils that contain one or more hazardous materials at concentrations less than an otherwise applicable Reportable Concentration and that are not a hazardous waste, may be transported from a disposal site without notice to or approval from the Department under the provisions of this Contingency Plan, provided that such soils:

(a)   are not disposed or reused at locations where the concentrations of oil or hazardous materials in the soil would be in excess of a release notification threshold applicable at the receiving site, as delineated in 310 CMR 40.0300 and 40.1600; and

(b)   are not disposed or reused at locations where existing concentrations of oil and/or hazardous material at the receiving site are significantly lower than the levels of those oil and/or hazardous materials present in the soil being disposed or reused.

 

(4)   Contaminated Groundwater and Contaminated Surface Water that is collected, treated,  conveyed, withdrawn, contained or discharged at or from a disposal site as part of a response action shall be managed in compliance with applicable provisions of  310 CMR 40.0030 and 40.0040.

 

(5)   Contaminated Media and Contaminated Debris managed under the Bill of Lading process described in 310 CMR 40.0034 shall not be disposed of at a land disposal facility if a feasible alternative exists that involves the reuse, recycling, destruction, and/or detoxification of such materials.  An evaluation of whether such an alternative is feasible shall consider:

(a)   the volume and physical characteristics of the Contaminated Media and Debris;

(b)   the levels of oil and/or hazardous materials present within the Contaminated Media and Debris; and

(c)   the relative costs of management options. 

 

40.0033:   Uncontainerized Waste

 

(1)   Remedial actions involving the storage, collection, treatment, disposal, containment, recycling or reuse of uncontainerized oil or waste oil within the boundaries of a disposal site shall be conducted in compliance with 310 CMR 40.0000.

 

(2)   RPs, PRPs and Other Persons who store Uncontainerized Hazardous Waste at a site, excluding oil or waste oil, shall do so in accordance with the management requirements of 310 CMR 30.000:  Hazardous Waste.  When storing such waste at a site for a period greater than 90 days the RP, PRP, or Other Person shall provide, for the purposes of 310 CMR 30.801(11), written documentation to the Department in the next response action submittal that:

(a)   the storage complies with the management requirements of 310 CMR 30.000:  Hazardous Waste;

(b)   provides a description of the type, quantity, and generation rate of any Uncontainerized Hazardous Waste being stored or accumulated;

(c)   provides justification for storage longer than 90 days; and

(d)   includes a projected timeline for storage of such wastes. 

 

(3)   RPs, PRPs and Other Persons conducting remedial actions  that involve the  treatment, disposal, recycling or reuse of Uncontainerized Hazardous Waste, excluding oil or waste oil, within the boundaries of a disposal site shall submit a written notice to the Department a minimum of 60 days prior to the initiation of such activities, except for response actions conducted as part of an Immediate Response Action. 

 

(4)   The notice required by 310 CMR 40.0033(3) shall include, without limitation, the following:

(a)   the address and Release Tracking Number(s) for the site;

(b)   the type of activity and why the activity may be subject to permitting requirements of 310 CMR 30.000:  Hazardous Waste;

(c)   the type and quantity of Uncontainerized Hazardous Waste;

(d)   a schedule; and

(e)   a discussion of the reason for and goal of the activity.

 

(5)   The Department shall review notices made pursuant to 310 CMR 40.0033(3) and determine whether the remedial action shall comply with all or part of the permitting requirements of 310 CMR 30.000.  In determining whether or not compliance with all or only portions of the permitting requirements of 310 CMR 30.000:  Hazardous Waste is required, the Department shall consider, without limitation:

(a)   the volume and toxicity of the uncontainerized hazardous waste;

(b)   the nature of the proposed remedial action; and

(c)   the potential for the proposed remedial action to impact health, safety, public welfare, and the environment.  If the Department does not issue a written notification that such remedial action requires compliance with all or part of the permitting requirements of 310 CMR 30.000:  Hazardous Waste within 45 days of receiving such notice, the remedial action shall be considered, for the purposes of 310 CMR 30.801(11), a remedial action initiated by the Department under the provisions of M.G.L. c. 21E.

 

40.0034:   Bill of Lading Process

 

(1)   Remediation Waste transported from a site under a Bill of Lading process, as described in 310 CMR 40.0030, shall be transported under a Bill of Lading in a form established by the Department for such purposes, which shall contain, without limitation, the information, Opinions, and certifications listed at 310 CMR 40.0035.

 

(2)   Remediation Waste managed under a Bill of Lading process shall not be transported from a site until all information, opinions, and certifications required in 310 CMR 40.0035(1)(a) through (i) are obtained by the RP, PRP, or Other Person conducting response actions.

 

(3)   Except as provided in 310 CMR 40.0034(4), Remediation Waste which is managed under the Bill of Lading process:

(a)   shall only be stored at the site of excavation or collection; 

(b)   shall be stored in a secure manner protective of health, safety, public welfare and the environment in accordance with 40.0036; and

(c)   shall be removed from the site of excavation or collection as soon as possible, and in all cases within 120 days of its initial excavation or collection, unless an Immediate Response Action Plan, Release Abatement Measure Plan, or Remedy Implementation Plan is submitted to the Department within this 120 day timeframe, and in accordance with all applicable provisions of 310 CMR 40.0000, proposing specific actions and procedures for on-site storage, treatment, reuse, or recycling of such Remediation Waste.

 

(4)   Remediation Waste containing oil or waste oil, but which is not otherwise a hazardous waste, and Remediation Waste containing hazardous material which is not a hazardous waste, may be removed from a site for temporary storage at another location owned or operated by the same RP, PRP, or Other Person conducting response actions, or to a facility permitted, licensed or approved to accept such materials provided:

(a)   the transportation and storage of the Remediation Waste is supervised, managed, or overseen by a Licensed Site Professional in accordance with 310 CMR 40.0035;

(b)   transportation and storage activities are conducted in a manner that is protective of health, safety, public welfare and the environment in accordance with 310 CMR 40.0036;

(c)   all Remediation Waste is ultimately transported to an approved treatment, recycling, reuse, or disposal facility within 120 days of its initial excavation or recovery from a disposal site or within a time period specifically approved by the Department as part of its oversight of response actions at such site; and

(d)   all Remediation Waste removed from an off-site temporary storage location  is trans-ported from the temporary storage location in accordance with the Bill of Lading provisions in 310 CMR 40.0035.

 

(5)   A completed Bill of Lading containing a signature of a representative of the receiving facility or receiving location shall be submitted to the Department within 30 days of the date of final shipment from the disposal site or storage/consolidation area, except for shipments of soils resulting from a Limited Removal Action conducted in accordance with 310 CMR 40.0318.

 

(6)   A completed Bill of Lading and supporting documentation for shipments of soil resulting from a Limited Removal Action conducted in accordance with 310 CMR 40.0318 shall be retained by the person conducting response actions for a minimum of five years or for as long as required by 310 CMR 40.0014, whichever is later.

 

(7)   The Department reserves the right to impose additional requirements on the management of Remediation Waste under the Bill of Lading process if the Department determines that such materials represent a hazard to health, safety, public welfare or the environment.

 

(8)   Remediation Waste generated during the performance of a Utility-related Abatement Measure in accordance with 310 CMR 40.0460 which is temporarily stored at another location owned or operated by the person undertaking such response action, or at a facility licensed, permitted, or approved to accept such materials, may be transported back to the site of generation for backfilling or treatment only if:

(a)   such Remediation Waste containing oil or waste oil is not otherwise a hazardous waste;

(b)   such Remediation Waste containing hazardous material is not a hazardous waste;

(c)   such Remediation Waste is returned at or near the original point of excavation for backfilling or treatment within 14 days from the initial date of excavation;

(d)   such Remediation Waste is stored in a secure manner protective of health, safety, public welfare and the environment, in accordance with 40.0036; and

(e)   any Remediation Waste not returned at or near the original point of generation for backfilling or treatment within 14 days is transported in  accordance with 310 CMR 40.0030 to an approved treatment, recycling, reuse, or disposal facility within 120 days of the initial date of generation.

 

40.0035:   Bill of Lading Form

 

(1)   The Bill of Lading shall contain, at a minimum, the following information, opinions, and certifications:

(a)   the address of the disposal site where the Remediation Waste was originally excavated or collected, and the address of any interim stockpiling, storage, and/or consolidation location;

(b)   the name, address, and telephone number of the RP, PRP, or Other Person conducting the response action;

(c)   the name and address of the transporter;

(d)   the name and address of the receiving facility or location;

(e)   except for Bills of Lading completed for Limited Removal Actions, as described in 310 CMR 40.0318, the Release Tracking Number for the disposal site where the Remediation Waste originated;

(f)   the estimated volume of Remediation Waste that will be shipped to the receiving facility;

(g)   the nature and composition of Remediation Waste that will be shipped to the receiving facility or storage location and the applicable Reportable Concentration reporting category for soil and/or groundwater described at 310 CMR 40.0360 associated with such Remediation Waste;

(h)   the  signature and seal of a Licensed Site Professional related to the rendering of an Opinion on the adequacy of testing and assessment actions undertaken to characterize the Remediation Waste, and on whether the Remediation Waste, as characterized, conforms with permitting and regulatory requirements for acceptance at the receiving facility or location, or the dated signature of an authorized representative of the Department, certifying the adequacy of testing and assessment actions undertaken to characterize the Remediation Waste, and approving of its shipment to the listed receiving facility or location;

(i)   the  dated signature of the RP, PRP, or Other Person conducting the response action, certifying the accuracy and completeness of the Bill of Lading, as specified in 310 CMR 40.0009; and

(j)   upon completion of all shipping activities, the  dated signature of a representative of the receiving facility or location, attesting to the total volume or weight of Remediation Waste received by the facility or location.

 

(2)   The Bill of Lading, or reproduction of the Bill of Lading, containing all information described in 310 CMR 40.0035(a) through (i), shall accompany each shipment of Remediation Waste transported from a disposal site.

 

40.0036:   Management Requirements for Storing Remediation Waste

 

(1)   All Remediation Waste shall be stored in a secure manner to prevent exposure  to humans and the environment .

 

(2)   Where practicable, the stockpiling or consolidating of Remediation Waste near sensitive human health receptors such as public and private water supply wells or sensitive environmental receptors such as wetlands, surface water bodies, or marine environments shall be avoided.

 

(3)   All Remediation Waste stored at the site of generation or at a temporary storage location shall be placed entirely on a base composed of an impermeable material, and shall be immediately covered with the same material or other suitable material so as to minimize the infiltration of precipitation, volatilization of contaminants, and erosion of the stockpile. Any cover material used shall be properly secured and possess the necessary physical strength to resist tearing by the wind.

 

(4)   Any failure of materials or procedures used in employing the base layer or cover layer as described in 310 CMR 40.0036(3) shall be immediately repaired, replaced, or re-secured so as to minimize precipitation infiltration, volatilization, and erosion/runoff of the Remediation Waste.

 

(5)   All soils when transported upon public roadways shall be covered to minimize fugitive dust, and where necessary truck tire and undercarriage washing  shall be employed to minimize tracking of soils onto public roadways.

 

(6)   Movement and/or aeration of Remediation Waste stockpiles shall be limited to those activities that are necessary to manage such stockpiles in accordance with 310 CMR 40.0000.  Landfarming of soil stockpiles is prohibited unless appropriate steps have been taken to minimize and treat potential air emissions pursuant to 310 CMR 40.0049.

 

40.0040:   Management Procedures for Remedial Wastewater and Remedial Additives

 

      The provisions of 310 CMR 40.0041 through 40.0047, cited collectively as 310 CMR 40.0040, establish requirements and procedures for the management of Remedial Wastewater and/or Remedial Additives, and for the construction, installation, modification, operation and maintenance of treatment works for the management of Remedial Wastewater and/or Remedial Additives.

 

40.0041:   General Provisions for the Management of Remedial Wastewater and/or Remedial Additives

 

(1)   In General.  RPs, PRPs, and Other Persons performing response actions at a disposal site pursuant to M.G.L. c. 21E and 310 CMR 40.0000 shall manage Remedial Wastewater and/or Remedial Additives in a manner adequate to protect health, safety, public welfare, and the environment, and in compliance with the applicable provisions of M.G.L. c. 21E, 310 CMR 40.0000, and all other laws, regulations, orders, permits, and approvals applicable to such response actions.

 

(2)   Discharges to Surface Water.  No person performing response actions at a disposal site shall discharge Remedial Wastewater and/or Remedial Additives into any Surface Water, or construct, install, modify, operate or maintain an outlet or treatment works for such a discharge, except as provided by M.G.L. c. 21E and 310 CMR 40.0000.

 

(3)   Discharges to the Ground Surface or Subsurface and/or Groundwater.  No person performing response actions at a disposal site shall discharge Remedial Wastewater and/or Remedial Additives to the ground surface or subsurface and/or groundwater, or construct, install, modify, operate or maintain an outlet or treatment works for such a discharge, except as provided by M.G.L. c. 21E and 310 CMR 40.0000.

 

(4)   Licensure under M.G.L. c. 21C. Response actions involving Remedial Wastewater and/or Remedial Additives which are conducted within the boundaries of a disposal site in compliance with the provisions of 310 CMR 40.0000 shall be considered, for the purposes of 310 CMR 30.801(11), remedial actions initiated by the Department under the provisions of M.G.L. c. 21E.  A valid license issued pursuant to M.G.L. c. 21C and 310 CMR 30.000:  Hazardous Waste shall not be required to manage Remedial Wastewater and/or Remedial Additives within the boundaries of a disposal site, provided such Remedial Wastewater and/or Remedial Additives are managed in compliance with M.G.L. c. 21E and 310 CMR 40.0000.

 

(5)   Construction, Installation or Modification of Treatment Works.  RPs, PRPs, and Other Persons performing response actions that involve the construction, installation or modification of treatment works for the management of Remedial Wastewater and/or Remedial Additives shall construct, install and modify such works in a manner adequate to protect health, safety, public welfare, and the environment, and in compliance with M.G.L. c. 21E and 310 CMR 40.0000.

 

(6)   Operation and Maintenance of Treatment Works.  RPs, PRPs, and Other Persons operating or maintaining treatment works for the management of Remedial Wastewater and/or Remedial Additives shall:

(a)   Operate and maintain such works in a manner adequate to protect health, safety, public welfare, and the environment, and in compliance with M.G.L. c. 21E and 310 CMR 40.0000.

(b)   Inspect such treatment works upon initial operation and at regular intervals thereafter.  The frequency of such inspections shall be conducted in conformance with the requirements specified in 310 CMR 40.0040 and any Department, USEPA, POTW, or Non-Publicly Owned Treatment Works permit or approval.  In addition, such persons shall inspect such treatment works upon any modification of the treatment works.  At a minimum, such inspection shall determine:

1.   the total volume of remedial wastewater treated since the previous inspection;

2.   the average flow rate of the system at the time of the inspection;

3.   the total volume of any non-aqueous phase oil or hazardous material recovered since the previous inspection; and

4.   whether any maintenance activities are necessary to ensure that continued operation of the treatment works shall comply with the applicable requirements.

(c)   Keep and maintain a log for such treatment works.  At a minimum, the RP, PRP, or Other Person shall record the following in the log:

1.   the name and affiliation of the person performing such inspection;

2.   the date and time of such inspection;

3.   the total volume of remedial wastewater treated since the previous inspection;

4.   the average flow rate of the system at the time of the inspection;

5.   the total volume of any non-aqueous phase oil or hazardous material recovered since the previous inspection;

6.   a description of any maintenance activities performed during the inspection, or to be scheduled as a result of the inspection; and

7.   a description of any problems or potential problems observed during the inspection.

(d)   Keep maintenance and inspection log books and records in a secure on-site building.  If a secure on-site building is not available, then such records shall be kept by the operator of the treatment works at an off-site location.

 

(7)   Prevention of Unlawful Discharges.  RPs, PRPs, and Other Persons shall take adequate measures to protect the treatment works from vandalism, and to prevent system failure, contaminant pass through, interference, by-pass, upset, and other events likely to result in a discharge of oil and/or hazardous materials to the environment, or to a POTW or Non-publicly Owned Treatment Works, which exceed or violate applicable standards and requirements.  At a minimum, these measures include:

(a)   where applicable, an automatic high water/product shutoff switch to prevent overflow of the treatment works;

(b)   where applicable, an automatic pressure shutoff switch;

(c)   data collection devices including flow rate and flow total meters;

(d)   maintenance of a process and instrumentation diagram of the treatment works in the log book or on the treatment works indicating the location of controls, sampling ports, switches, gauges and other system components;

(e)   proper sealing of the treatment works to prevent any unlawful discharge of vapors;

(f)   proper precautions to prevent damage to the system by freezing or extreme heat, vehicles, or vandalism;

(g)   procedures or equipment for identifying system malfunction and communicating such malfunction to the system operator;  and

(h)   posting the name and telephone number of the person to contact in the event of a malfunction in an accessible readily visible location.

 

(8)   Prohibition on Discharge of Uncontainerized Waste.  No person conducting response actions at a disposal site shall discharge Uncontainerized Waste to the environment or to a POTW or Non-publicly Owned Treatment Works.

 

(9)   Inspection of Treatment Works.  Except for discharges of Remedial Additives, and discharges of Remedial Wastewater  that are discharged without treatment in accordance with 310 CMR 40.0040, RPs, PRPs, and Other Persons treating Remedial Wastewater at a disposal site pursuant to M.G.L. c. 21E and 310 CMR 40.0040 shall engage or employ a Wastewater Treatment Plant Operator having, at a minimum, a currently valid certification of Grade 2, as defined in 257 CMR 2.12:  Grades of Wastewater Treatment Facility Operators (or higher if required by 257 CMR 2.13:  Classification of Wastewater Treatment Facilities) to ensure the proper operation and maintenance of the treatment works.  Such certified operator shall at a minimum inspect the treatment works at regular intervals of 30 days for the first three months following commencement of the discharge, or any modification of the treatment works associated with the discharge, and at regular intervals of three months thereafter for the duration of the discharge.

 

(10)   Discharges in the Vicinity of Outstanding Resource Waters.  Except as provided for in 310 CMR 40.0045(4), no person performing response actions at a disposal site pursuant to M.G.L. c. 21E and 310 CMR 40.0000 shall discharge Remedial Wastewater to the ground surface or subsurface, or to groundwater, at a point within 200 feet of a surface water body designated as an Outstanding Resource Water pursuant to 314 CMR 4.03(4), unless the concentrations of oil and/or hazardous material in the Remedial Wastewater discharged are below the applicable groundwater quality standards set forth in 314 CMR 6.00:  Ground Water Quality Standards and the applicable Reportable Concentrations set forth in 310 CMR 40.0300 and 40.1600.

 

(11)   Sampling and Analyses of Remedial Wastewater.  RPs, PRPs, and Other Persons operating or maintaining treatment works for the management of Remedial Wastewater and/or Remedial Additives shall collect and analyze a sufficient number of soil and/or groundwater samples in accordance with 40.0017 to demonstrate that the discharge and treatment works are in compliance with the requirements of M.G.L. c. 21E and 310 CMR 40.0000.

 

(12)   Sampling and Analyses of Remedial Additives and Remedial Additive By-products.  RPs, PRPs, and Other Persons performing response actions involving Remedial Wastewater and/or Remedial Additives shall collect and analyze a sufficient number of samples of the affected soil and groundwater in accordance with 310 CMR 40.0017 to demonstrate that the response action meets the requirements of M.G.L. c. 21E and 310 CMR 40.0000.

 

(13)   Transition Provision.  Unless otherwise directed by the Department, RPs, PRPs, and Other Persons managing Remedial Wastewater and/or Remedial Additives at a disposal site pursuant to a Groundwater Discharge Permit, Surface Water Discharge Permit, or Sewer System Extension and Connection Permit, issued by the Department pursuant to 314 CMR 3.00:  Surface Water Discharge Permit Program, 5.00:  Ground Water Discharge Permit Program or 7.00:  Sewer System Extension and Connection Permit Program, respectively, on or before August 25, 1995, may either:

(a)   manage such Remedial Wastewater and/or Remedial Additives in accordance with the terms and conditions of such permit, or

(b)   surrender such permit to the Department and manage the Remedial Wastewater and/or Remedial Additives in accordance with the requirements and procedures of M.G.L. c. 21E and 310 CMR 40.0000.

 

(14)   Alternative Monitoring Plans.  Notwithstanding any other provision of 310 CMR 40.0045 or 40.0046, a Licensed Site Professional may develop and submit an alternative plan for monitoring discharges for Remedial Wastewater and/or Remedial Additives, provided:

(a)   site-specific monitoring requirements have not been established by the Department in an order, permit or approval;

(b)   the plan is developed to demonstrate that the applicable standards and requirements for the discharge and treatment works have been met, and takes into consideration an evaluation of the following:

1.   monitoring data collected over a 12 month period for the discharge and treatment works;

2.   the potential risks to, and sensitivity of, human and ecological populations at, and in the vicinity of, the disposal site;

3.   the permeability of the soils at the disposal site;

4.   the presence of any natural groundwater divides  or barriers at the disposal site;

5.   the presence of geologic formations and deposits which could act as preferred groundwater migration pathways;

6.   any subsurface utilities and conduits, and other subsurface structures;

7.   the direction and rate of groundwater movement and flow;

8.   the type of treatment works and management procedures employed at the disposal site;

9.   the fate and transport characteristics of the oil and/or hazardous material present at the disposal site; and

10.   any other relevant information; and

(c)    the alternative plan, in his or her professional judgment, is adequate to demonstrate whether the applicable standards and requirements for the discharge have been met.

 

(15)   Reservation of Rights.  No provision of 310 CMR 40.0040 shall be construed to limit the Department's authority to impose on any person requirements for the management of Remedial Wastewater and/or Remedial Additives in addition to those requirements set forth in 310 CMR 40.0040 as the Department deems necessary to protect health, safety, public welfare, or the environment.

 

(16)   No Implied Authority.  No provision of 310 CMR 40.0040 shall be construed to imply authorization by the Department to any person to discharge Remedial Wastewater and/or Remedial Additives to any real or personal property not owned by him or her, or to otherwise injure or interfere with any other person's rights or interests, without that person's consent.

 

(17)   Selection of Discharge Authorization.  RPs, PRPs, and Other Persons may discharge Remedial Wastewater, Remedial Additives and/or groundwater at or from a disposal site either:

(a)   in accordance with the requirements set forth in M.G.L. c. 21E, and 310 CMR 40.0000; or

(b)   in accordance with the terms and conditions of a permit issued pursuant to M.G.L. c. 21, § 43, 314 CMR 3.00:  Surface Water Discharge Permit Program, 5.00:  Ground Water Discharge Permit Program, or 7.00:  Sewer System Extension and Connection Permit Program, whichever is applicable.

 

40.0042:   Remedial Wastewater Discharges to Surface Water

 

(1)   Any person performing response actions at a disposal site in accordance with M.G.L. c. 21E and 310 CMR 40.0000 may discharge Remedial Wastewater to surface water, provided such discharge occurs in compliance with the terms and conditions of a NPDES permit or emergency exclusion granted by EPA pursuant to 33 U.S.C. 1251 et seq., if applicable, and M.G.L. c. 21E and 310 CMR 40.0000.

 

(2)   Any person performing response actions at a disposal site in accordance with M.G.L. c. 21E and 310 CMR 40.0000 may discharge Remedial Wastewater to surface water without a permit from the Department pursuant to M.G.L. c. 21, § 43, and 314 CMR 3.00, the Massachusetts' Surface Water Discharge Permit Program, provided the discharge is exempt from such permitting requirements under 314 CMR 3.05.

 

(3)   Any person discharging Remedial Wastewater to surface water in accordance with an emergency exclusion granted by EPA pursuant to 33 U.S.C. 1251 et seq. shall cease such discharge on or before 120 days from the effective date of the emergency exclusion initially authorizing such discharge, unless:

(a)   EPA grants such person an extension of the emergency exclusion initially authorizing the discharge;

(b)   a permit application for the discharge has been submitted to EPA in accordance with the NPDES program established pursuant to 33 U.S.C. 1251 et seq; or

(c)   such person has a NPDES permit from EPA authorizing the discharge.

 

(4)   Any person performing response actions at a disposal site pursuant to M.G.L. c. 21E and 310 CMR 40.0000 may discharge Remedial Wastewater to surface water that has been designated for protection as an Outstanding Resource Water under 314 CMR 4.04(3), only if:

(a)   such person has a currently valid variance for the discharge from the Department pursuant to 314 CMR 4.04(4); or

(b)   such discharge has been approved by the Department as an Immediate Response Action pursuant to 310 CMR 40.0420 to abate, prevent, or eliminate an Imminent Hazard for which there is no alternative discharge outlet reasonably available or feasible.

 

40.0043:   Remedial Wastewater Discharges to Publicly Owned Treatment Works (POTW)

 

(1)   Any person performing response actions at a disposal site in accordance with M.G.L. c. 21E and 310 CMR 40.0000 may discharge Remedial Wastewater to a sewer system without a permit from the Department pursuant to M.G.L. c. 21, § 43, and 314 CMR 7.00:  Sewer System Extension and Connection Permit Program, provided the discharge is exempt from such permitting requirements under 314 CMR 7.05:  Activities not Requiring a Permit.

 

(2)   Any person performing response actions at a disposal site in accordance with M.G.L. c. 21E and 310 CMR 40.0000 may discharge Remedial Wastewater to a sewer system and/or POTW, provided:

(a)   if such discharge is to a sewer system, such discharge complies with the terms and conditions of any permit, license or approval from the public entity controlling the sewer system, and M.G.L. c. 21E and 310 CMR 40.0000; and

(b)   if such discharge is to a POTW, such discharge complies with the terms and conditions of any permit, license or approval from the public entity controlling the POTW, and M.G.L. c. 21E and 310 CMR 40.0000.

 

(3)   No provision of 310 CMR 40.0040 shall be construed to require any public entity controlling a sewer system or POTW to receive any discharge of Remedial Wastewater, or to limit the authority of any public entity controlling a sewer system or POTW, including, but not limited to, any authority to impose connection, user or permit fees, or to impose requirements for the management of Remedial Wastewater, including, but not limited to, any authority to impose monitoring and reporting requirements, to establish volume restrictions, or to impose pretreatment requirements.

 

40.0044:   Remedial Wastewater Discharges to Non-publicly Owned Treatment Works

 

(1)   Any person performing response actions at a disposal site in accordance with M.G.L. c. 21E and 310 CMR 40.0000 may discharge Remedial Wastewater to a Non-publicly Owned Treatment Works, provided:

(a)   the person controlling the Non-publicly Owned Treatment Works has a permit for such works issued by the Department pursuant to 314 CMR 3.00:  Surface Water Discharge Permit Program, 5.00:  Ground Water Discharge Permit Program, and/or 8.00:  Supplemental Requirements for Hazardous Waste Management Facilities, whichever is applicable, that includes specific effluent limitations for the particular oils and hazardous materials in the Remedial Wastewater;

(b)   the Non-Publicly Owned Treatment Works has been designed or modified to provide a level of treatment adequate to comply with the applicable effluent limitations, as established by 314 CMR 3.00:  Surface Water Discharge Permit Program, 5.00:   Ground Water Discharge Permit Program, and/or 8.00:  Supplemental Requirements for Hazardous Waste Management Facilities; and

(c)   such discharge complies with the terms and conditions of any permit, license or approval from the person controlling the Non-publicly Owned Treatment Works, and M.G.L. c. 21E and 310 CMR 40.0000.

 

(2)   No provision of 310 CMR 40.0040 shall be construed to require any person controlling a Non-publicly Owned Treatment Works to receive any discharge of Remedial Wastewater, or to limit the authority of any such person, including, but not limited to, any authority to impose connection, user or permit fees, or to impose requirements for the management of Remedial Wastewater, including, but not limited to, any authority to impose monitoring and reporting requirements, to establish volume restrictions, or to impose pretreatment requirements.


 

40.0045:   Remedial Wastewater Discharges to the Ground Surface or Subsurface and/or Groundwater

 

(1)   Requirement for All Discharges to the Ground Surface or Subsurface and/or Groundwater.  Any person performing response actions at a disposal site in accordance with M.G.L. c. 21E and 310 CMR 40.0000 may discharge Remedial Wastewater to the ground surface or subsurface and/or groundwater, provided such discharge:

(a)   does not erode or otherwise impair the functioning of the surficial and subsurface soils, infiltrate underground utilities, building interiors or subsurface structures, result in groundwater mounding within two feet of the ground surface, or result in flooding of, or breakout to the ground surface; and

(b)   otherwise complies with M.G.L. c. 21E and 310 CMR 40.0000.

 

(2)   Any person performing response actions at a disposal site in accordance with M.G.L. c. 21E and 310 CMR 40.0000 may discharge Remedial Wastewater to the ground surface or subsurface and/or groundwater without a permit from the Department pursuant to M.G.L. c. 21, § 43, and 314 CMR 5.00, the Massachusetts Ground Water Discharge Permit Program, provided the discharge is exempt from such permitting requirements under 314 CMR 5.05.

 

(3)   Requirements for Downgradient and Off-Site Discharges.

(a)   Except as provided for in 310 CMR 40.0045(5) through (7), any person performing response actions at a disposal site in accordance with M.G.L. c. 21E and 310 CMR 40.0000 may discharge Remedial Wastewater to the ground surface or subsurface and/or groundwater, at a location either downgradient of the point of withdrawal or outside of the boundaries of the disposal site, provided:

1.   the OHM concentrations discharged are below the applicable Reportable Concentrations established by 310 CMR 40.0300 and 40.1600, or, for OHM for which there is no applicable Reportable Concentration, the concentration discharged is below background or a concentration determined by a site-specific evaluation not to exacerbate existing conditions;

2.   groundwater downgradient of the point of discharge is monitored at regular intervals of three months to detect any migration of oil and/or hazardous material at or from the disposal site;

3.   the discharge from the treatment works is monitored after initial operation and any modification (e.g., on the 1st, 3rd, 6th day, and weekly thereafter for the rest of the first month of operation), and at regular intervals of 30 days thereafter;

4.   the discharge is not made to a location at which the concentrations of oil and/or hazardous material in the groundwater are significantly lower than the concentrations of oil and/or hazardous material in the discharge; and

5.   the discharge does not exacerbate existing conditions, or prevent or impair the performance of remedial actions, at the disposal site. 

(b)   The discharge of Remedial Wastewater containing hazardous waste at a point outside of the boundaries of the disposal site is prohibited, except as provided by 310 CMR 30.000:  Hazardous Waste.

 

(4)   Requirements for Upgradient Discharges.  Except as provided for in 310 CMR 40.0045(5) through (7), any person performing response actions at a disposal site in accordance with M.G.L. c. 21E and 310 CMR 40.0000 may discharge Remedial Wastewater to the ground surface or subsurface and/or groundwater, at a location upgradient of the point of withdrawal, provided:

(a)   hydraulic containment of the groundwater at the disposal site is maintained so that the Remedial Wastewater discharged upgradient of the point of withdrawal is contained or recaptured within the boundaries of the disposal site;

(b)   the area of hydraulic containment of the groundwater at the disposal site is monitored at regular intervals of 30 days for the first 12 months following commencement of the discharge, or any modification of the treatment works associated with the discharge, to demonstrate compliance with 310 CMR 40.0045(4)(a), and at regular intervals of three months thereafter for the duration of the discharge, unless additional and/or more frequent monitoring is necessary to demonstrate compliance with 310 CMR 40.0045(4)(a);

(c)   the discharge is not made to a location at which the concentrations of oil and/or hazardous material in the groundwater at such location is significantly lower than the concentrations of oil and/or hazardous material in the discharge; and

(d)   the discharge does not exacerbate existing conditions, or prevent or impair the performance of remedial actions, at the disposal site.

 

(5)   Requirements for Utility-related Abatement Measures.

(a)   Any person performing a Utility-related Abatement Measure at a disposal site in accordance with M.G.L. c. 21E and 310 CMR 40.0000 may discharge Remedial Wastewater to the ground surface or subsurface and/or groundwater, provided:

1.   the Remedial Wastewater is returned to the ground surface or subsurface at a point within 100 feet of the point of withdrawal;

2.   the discharge does not exacerbate existing conditions, or prevent or impair the performance of remedial actions, at the disposal site; and

(b)   Any person performing a Utility-related Abatement Measure pursuant to M.G.L. c. 21E and 310 CMR 40.0000 that includes the discharge of Remedial Wastewater to the ground surface or subsurface and/or groundwater, shall include a description of the discharge, including the concentration of the oils and/or hazardous materials encountered, the pumping rate and volume of the discharge, and a description of any treatment works employed, in the status reports and/or completion reports submitted to the Department pursuant to 310 CMR 40.0465 and 40.0466.

 

(6)   Requirements for Discharges Containing Non-Reportable Concentrations of Oil and/or Hazardous Material.

(a)   Any person performing response actions at a disposal site in accordance with M.G.L. c. 21E and 310 CMR 40.0000 may discharge groundwater containing oil and/or hazardous material in concentrations less than the applicable release notification threshold established by 310 CMR 40.0300 and 40.1600, to the ground subsurface and/or groundwater provided:

1.   the discharge is not made to a location where the concentrations of any oil and/or hazardous material in discharge exceeds an applicable notification threshold established by 310 CMR 40.0300 and 40.1600 at such a location;

2.   the discharge is not made to a location at which the concentrations of oil and/or hazardous material in the groundwater at such location are significantly lower than the concentrations of oil and/or hazardous material in the groundwater being discharged; and

3.   the discharge does not otherwise exacerbate existing conditions, or prevent or impair the performance of remedial actions, at a disposal site.

(b)   The discharge of groundwater containing hazardous waste at a point outside of the boundaries of the disposal site is prohibited, except as provided by 310 CMR 30.000:  Hazardous Waste.

 

(7)   Requirements for Discharges That Occur During Well Development or Sampling.

(a)   Any person performing response actions at a disposal site in accordance with M.G.L. c. 21E and 310 CMR 40.0000 may discharge Remedial Wastewater or groundwater collected during development, purging, or sampling of groundwater monitoring wells to the ground subsurface, provided the Remedial Wastewater or groundwater is discharged as follows:

1.   at the point of withdrawal; or

2.   at a point upgradient of the point of withdrawal if the concentrations of any oil and/or hazardous material in the groundwater at the point of discharge are equal to or greater than the concentrations of the oil and/or hazardous material in the Remedial Wastewater.

(b)   The discharge of Remedial Wastewater containing hazardous waste at a point outside of the boundaries of the disposal site is prohibited, except as provided by 310 CMR 30.000:  Hazardous Waste.

 

40.0046:   Application of Remedial Additives

 

(1)   In General.  Any person performing response actions at a disposal site may apply Remedial Additives to the ground surface or subsurface and/or groundwater provided such application, and any Remedial Additive By-product:

(a)   does not erode or otherwise impair the functioning of the surficial and subsurface soils, infiltrate underground utilities, building interiors or subsurface structures;

(b)   in cases where the application is to the subsurface, does not result in groundwater mounding within two feet of the ground surface, or result in flooding of or breakout to the ground surface;

(c)   in cases where the Remedial Additives and/or Remedial Additive By-products contain OHM, does not result in the presence of such OHM in the soil or groundwater at any point measured 50 feet or more downgradient from the furthest downgradient point of application at concentrations equal to or greater than an applicable Reportable Concentration set forth in 310 CMR 40.0000;

(d)   in cases where the Remedial Additives or Remedial Additive By-products do not contain OHM, does not result in the presence of such Remedial Additives or Remedial Additive By-products in soil or groundwater at any point measured 50 feet or more downgradient from the furthest downgradient point of application above a background concentration or above a level that will exacerbate existing conditions, or prevent or impair the performance of remedial actions at the disposal site; and

(e)   is otherwise performed in compliance M.G.L. c. 21E and 310 CMR 40.0000.

 

(2)   Relationship to Massachusetts Ground Water Discharge Permit Program.  Any person performing response actions at a disposal site in accordance with M.G.L. c. 21E and 310 CMR 40.0000 may apply Remedial Additives to ground surface or subsurface and/or groundwater, without a permit from the Department pursuant to M.G.L. c. 21, § 43, and 314 CMR 5.00:  Groundwater Discharge Permitting Program, the Massachusetts Ground Water Discharge Permit Program, provided the discharge is exempt from such permitting requirements under 314 CMR 5.05:  Activities Not Requiring a Permit.

 

(3)   Additional Requirements for the Application of Remedial Additives Near Sensitive Receptors.

(a)   Prior approval by the Department pursuant to 310 CMR 40.0046(3)(b) is required for the application of Remedial Additives:

1.   within 100 feet of any private water supply well;

2.   within 800 feet of any public water supply well or well field;

3.   within 800 feet of any surface water supply used in a public water system or any tributary of such surface water supply;

4.   within 50 feet of any other surface water body or any tributary of such surface water; or

5.   within 100 feet of a School, Daycare or Child Care Center or occupied Residential Dwelling;

(b)   Except as provided at 310 CMR 40.0045(3)(c), a written plan for the application of Remedial Additives shall be submitted to the Department using a form provided by the Department for such purpose prior to its implementation.  Such plan shall be approved, conditionally approved, or denied by the Department in writing within 30 days of its receipt by the Department. Approval of such plan shall be presumed if the Department does not issue a written approval or denial of said plan within 30 days of receipt;

(c)   Oral approval may be granted by the Department in situations where there has been a sudden release of oil and/or hazardous material and in other cases where written approval would delay the timely implementation of an Immediate Response Action.  In such case where the Department grants oral approval for the application of Remedial Additives as part of an IRA, a written IRA Plan that documents such application of Remedial Additives shall be provided in accordance with the timeframes at 310 CMR 40.0420(7).

 

(4)   Requirements for Treatment of Soil and Groundwater.  Each person performing response actions at a disposal site pursuant to M.G.L. c. 21E and 310 CMR 40.0000 that include the application of Remedial Additives shall:

(a)   prior to the initial application of Remedial Additives, collect soil and/or groundwater samples at the disposal site for analysis in accordance with 310 CMR 40.0017 to document the concentration of oil and hazardous material;

(b)   prior to any subsequent application of Remedial Additives, collect and analyze soil and/or groundwater samples at the disposal site in accordance with 310 CMR 40.0017 to document the concentration of oil and hazardous material and/or Remedial Additive By-products, which may be present in soil and/or groundwater from previous application of Remedial Additives; and

(c)   after each  application of Remedial Additives, monitor the groundwater hydraulically upgradient and downgradient, and where practicable underlying the point of application of the Remedial Additives at regular intervals not to exceed every three months thereafter to detect any migration of oil and/or hazardous material, Remedial Additives and/or Remedial Additive By-products from the disposal site.

 

(5)   Notwithstanding the requirements of 310 CMR 40.0046(4)(b), where the application of Remedial Additives is occurring more than once within a calendar month, sampling prior to any subsequent application may be limited to once monthly.

 

(6)   Each person performing response actions at a disposal site pursuant to M.G.L. c. 21E and 310 CMR 40.0000 that include the application of Remedial Additives, shall after the final application of Remedial Additives at a disposal site, monitor the groundwater at regular intervals for a reasonable period of time to demonstrate compliance with 310 CMR 40.0046(1)(b), unless the concentrations of Remedial Additives applied were below applicable standards set forth in 40.0046(1)(b).  For determining a reasonable time period, each person shall consider the types, concentrations, and application methodology of Remedial Additives applied, the presence of Remedial Additive By-products, rate and direction of groundwater movement and flow, and the permeability of the soils at the disposal site.

 

40.0047:   Reporting Requirements for Discharges of Remedial Wastewater and Remedial Additives

 

(1)   Reporting Requirements for Remedial Wastewater Discharges to Surface Water, Sewer Systems, POTWs, or Non-publicly Owned Treatment Works.  Each person performing response actions at a disposal site in accordance with M.G.L. c. 21E and 310 CMR 40.0000 that includes the discharge of Remedial Wastewater to a surface water body, sewer system, POTW, or Non-Publicly Owned Treatment Works, shall include a description of the results of the inspections and monitoring required by 310 CMR 40.0040 in the pertinent status reports and/or completion reports submitted to the Department pursuant to 310 CMR 40.0000.  In addition to the monitoring data required pursuant to 40.0040, RPs, PRPs, and Other Persons shall also include in pertinent status reports and/or completion reports all other relevant data for the discharge and/or treatment works, collected as a result of their own undertaking or to demonstrate compliance with requirements imposed by other entities.  Such additional data includes, but is not limited to, the results of any monitoring required by EPA or the person controlling the sewer system, POTW or Non-publicly Owned Treatment Works receiving the discharge, and any influent monitoring results.

 

(2)   Reporting Requirements for Discharges of Remedial Wastewater to the Ground Surface or Subsurface and/or Groundwater.  Each person performing response actions at a disposal site in accordance with M.G.L. c. 21E and 310 CMR 40.0000 that includes the discharge of Remedial Wastewater to the ground surface or subsurface and/or groundwater, shall include a description of the results of the inspections and monitoring required by 310 CMR 40.0040 in the pertinent status reports and/or completion reports submitted to the Department pursuant to 310 CMR 40.0000.  In addition to the monitoring data required pursuant to 310 CMR 40.0040, RPs, PRPs, and Other Persons shall also include in pertinent status reports and/or completion reports all other relevant data for the discharge and/or treatment works, collected either as a result of their own undertaking or to demonstrate compliance with 310 CMR 40.0000.  Such additional monitoring data includes but is not limited to influent monitoring data, or other information concerning the performance of the treatment works.

 

(3)   Reporting Requirements for Discharges of Remedial Additives.  Each person performing response actions at a disposal site in accordance with M.G.L. c. 21E and 310 CMR 40.0000 that includes the application of Remedial Additives to the ground surface or subsurface and/or groundwater, shall include a description of the composition, volume, and concentration of the Remedial Additives applied, the methodology employed, and the results of the monitoring required by 310 CMR 40.0040 in the pertinent status reports and/or completion reports submitted to the Department pursuant to 310 CMR 40.0000.  In addition to the monitoring data required pursuant to 40.0040, RPs, PRPs, and Other Persons shall also include in pertinent status reports and/or completion reports all other relevant data for the application of and discharge of Remedial Additives, collected as a result of their own undertaking, or to demonstrate compliance with 310 CMR 40.0000. Such additional monitoring data includes but is not limited to soil or groundwater analyses obtained from areas where Remedial Additives have been applied, or any other information concerning the performance of the Remedial Additives.

 

(4)   Except as provided for in 310 CMR 40.0045(5) through (7), each status report and completion report submitted in accordance with 310 CMR 40.0047(1) through (3), shall include the following:

(a)   the time and date of any inspections and/or monitoring for the period covered by the report;

(b)   graphical and tabular presentation of any monitoring results for the period covered by the report;

(c)   a description of any operation and maintenance activities, including, but not limited to, a description of any modification to the treatment works or shut-down; and

(d)   if applicable, the name and license number of the Wastewater Treatment Plant Operator employed or engaged at the disposal site, and a copy of his or her inspection report.

 

(5)   Except as provided by 310 CMR 40.0311, each person performing response actions at a disposal site in accordance with M.G.L. c. 21E and 310 CMR 40.0000 that includes the discharge of Remedial Wastewater to a surface water body, sewer system, POTW, or Non-Publicly Owned Treatment Works, or the ground surface or subsurface and/or groundwater, shall report any non-compliance with discharge or concentration limits in  310 CMR 40.0040 through 40.0049 within 72 hours after obtaining knowledge of the circumstances.  If the person performing response actions has not corrected the non-compliance, such person shall immediately take appropriate steps to reduce, eliminate and prevent reoccurrence of the noncompliance.  Such person shall submit to the Department a written description of the non-compliance, including exact dates and times, and a description of the steps taken, or to be taken, to assess, reduce, eliminate and prevent reoccurrence of the noncompliance in the next applicable response action Status Report.

 

40.0049:   Remedial Air Emissions

 

(1)   Remedial actions that involve the emission or discharge of oil and/or hazardous material to the atmosphere shall be conducted in a manner that ensures the protection of health, safety, public welfare and the environment, in conformance with 310 CMR 40.0000, 310 CMR 7.00:  Air Pollution Control, and any other applicable permits, approvals, laws or regulations.

 

(2)   Except as provided in 310 CMR 40.0049(3), point-source atmospheric emissions of oil and hazardous material from remedial systems and operations, including, without limitation, packed-tower or diffused aeration air strippers, bioreactors, and soil vapor extraction systems, shall be treated by control devices prior to their discharge to the ambient air.

 

(3)   Notwithstanding the provisions of 310 CMR 40.0049(2),  except where specifically required in writing by the Department based upon its review of proposed or ongoing response actions, treatment of point-source remedial air emissions is not required at a disposal site if the untreated emissions:

(a)   are from an Active Exposure Pathway Mitigation Measure installed to prevent the migration of subsurface vapors into living/working spaces of a building, provided the total air emission rate of all volatile contaminants is less than 100 pounds/year; or

(b)   would be at or below a level of no significant risk to health, safety, public welfare, and the environment; provided, however, that the person undertaking the response action submits an LSP Opinion to the Department prior to commencement of the remedial action stating that such untreated emissions will present no significant risk to health, safety, public welfare and the environment, considering:

1.   the mass flux and toxicities of the oil and hazardous material being emitted;

2.   the types and proximity of human and ecological populations;

3.   background concentrations of oil and hazardous material in the ambient atmosphere;

4.   relevant policies issued by the Department; and

5.   any other relevant factors.

 

(4)   Treatment of point-source remedial air emissions may be waived by the Department at sites where timely actions are needed to prevent or abate an imminent hazard to health, safety, public welfare, or the environment.  In such cases, control devices shall be installed as needed as soon as possible.

 

(5)   Except as provided in 310 CMR 40.0049(7), air-emission control devices shall be designed, constructed, and operated in a manner that will ensure removal of at least 95% of the emitted oil and hazardous materials, on a weight basis.

 

(6)   Monitoring Requirements for Remedial Actions that Require the Use of an Off-gas Control System.  To ensure compliance with the 95% VOCs reduction performance standard, each person performing response actions at a disposal site pursuant to M.G.L. c. 21E and 310 CMR 40.0000 that require the use of off-gas control systems to reduce the emission or discharge amounts of oil and/or hazardous material to the atmosphere shall:

(a)   collect and analyze influent and effluent vapor samples from the off-gas control system one, seven, 14 and 28 days after system start-up, and monthly thereafter; and

(b)   document the results of the monitoring in the appropriate status report or Remedial Monitoring Report.

 

(7)   Notwithstanding the provisions of 310 CMR 40.0049(5), except where treatment standards are specified in writing by the Department based upon its review of proposed or ongoing response actions, a Licensed Site Professional may submit an Opinion to the Department that achievement of a 95% level of emission reduction is not feasible or necessary at a disposal site, based upon an evaluation of conventional treatment technologies and risks to surrounding human or ecological populations.  This Opinion shall be accompanied by an alternative treatment control plan that will be implemented at the disposal site. 

 

(8)   No provision of 310 CMR 40.0049(3) or (7) shall relieve any person conducting response actions of their obligations to comply with all applicable permitting requirements and treatment standards specified in 310 CMR 7.00:  Air Pollution Control.

 

40.0050:   Appeals of Orders and Permits

 

(1)   Wherever expressly provided by 310 CMR 40.0000, any person who is aggrieved by a permit decision of the Department, or order issued pursuant to M.G.L. c. 21E, § 9, may request an adjudicatory hearing before the Department.  

 

(2)   Each request for a hearing must be sent to the Docket Clerk of the Department by certified mail or hand-delivered within 21 days of the date of issuance of the decision being appealed.  A copy of the request shall be sent by certified mail or hand delivered simultaneously to:

(a)   the Chief Municipal Officer for the municipality where the disposal site is located;

(b)   the regional office of the Department that issued the decision or order; and

(c)   where the person aggrieved by a decision is a Permit Applicant who is appealing a permit decision, pursuant to 310 CMR 40.0770, such person shall also simultaneously send, by certified mail or hand delivery, a copy of the request for an adjudicatory hearing to each person who provided public comment.

 

(3)   Any person who appeals a decision or order who is neither the applicant nor the person to whom such an order was issued is required to simultaneously send a copy of the hearing request by certified mail or by hand to the applicant.  For purposes of 310 CMR 40.0000, an aggrieved person is any person who is entitled to become a party or intervene in the proceeding under 310 CMR 1.00:  Air Pollution Control.


 (4)   Each request for a hearing submitted pursuant to 310 CMR 40.0050 shall state clearly and concisely the facts which are grounds for the proceeding, in what manner the person, in whose name the request is made, is aggrieved and the remedy that is being sought.  The appropriate filing fee required under 310 CMR 4.00:  Timely Action Schedule and Fee Provisions shall be sent to the Department in the manner required therein.

 

(5)   Where an applicant is seeking a decision from the Department, the applicant has the burden of establishing, on the basis of credible evidence from a competent source, such facts as are necessary to meet the conditions and criteria set forth in the applicable provisions of 310 CMR 40.0000.

 

(6)   Where an aggrieved person is someone other than the applicant, the aggrieved person has the burden of establishing on the basis of credible evidence from a competent source, such facts as are necessary to meet the conditions and criteria set forth in applicable provisions of 310 CMR 40.0000.

 

(7)   The filing of an appeal shall not prevent the Department from issuing any future orders or taking any other action the Department reasonably deems necessary to respond to a release or threat of release of oil or hazardous material, including, but not limited to, taking or arranging one or more response actions at the site or location which is the subject of the appeal.

 

(8)   The following determinations shall not be subject to an adjudicatory hearing:

(a)   a decision whether to issue an order pursuant to M.G.L. c. 21E, § 10;

(b)   a decision whether to issue a Notice of Responsibility to any person pursuant to 310 CMR 40.0160(1);

(c)   a decision whether to issue a Notice of Intent to Take a Response Action pursuant to 310 CMR 40.0160(2);

(d)   a decision whether to issue a Request for Information pursuant to 310 CMR 40.0165;

(e)   a decision whether to establish Interim Deadlines pursuant to M.G.L. c. 21E, § 3A(j) and 310 CMR 40.0167;

(f)   a decision whether to authorize site access pursuant to M.G.L. c. 21E, § 8, and 310 CMR 40.0173;

(g)   a decision whether to develop an administrative record in accordance with 310 CMR 40.1300;

(h)   a decision whether to audit a specific site to determine whether such site is in compliance with M.G.L. c. 21E, 310 CMR 40.0000, and any other law administered or enforced by the Department;

(i)   a decision whether to initiate enforcement action against any person under M.G.L. c. 21E and/or 310 CMR 40.0000;

(j)   a decision regarding a petition for reimbursement of costs under 310 CMR 40.1260;

(k)   a decision whether to initiate Compliance Assistance under 310 CMR 40.1100;

(l)   a decision whether to issue a Technical Assistance Grant;

(m)   a decision upon administrative review of a demand for payment of Response Action Costs in accordance with 310 CMR 40.1220(3);

(n)   any decision to suspend, revoke or refuse to renew any permit, authorization, approval, including, but not limited to, any Waiver of Approvals, or similar form of permission required by M.G.L. c. 21E and/or the MCP, where:

1.   DEP is expressly not required by the General Laws to grant a hearing; or

2.   DEP is required by law to take such action without exercising any discretion in the matter on the basis of a court conviction or judgment; or

3.   such action is based solely upon failure to file timely reports, schedules or applications, or to pay lawfully prescribed fees;

(o)   any decision contained in a Notice of Audit Findings at the conclusion of an audit, provided, however, that any Notice of Intent to Assess a Civil Administrative Penalty or order accompanying such notice or issued following issuance of a Notice of Audit Finding shall be subject to an adjudicatory hearing;

(p)   any decision to designate one or more disposal sites or response actions as a Special Project in accordance with 310 CMR 40.0026;

(q)   any Reclassification of a Tier IA disposal site made in accordance with 310 CMR 40.0583; and

(r)   any other determination, decision, authorization or approval under M.G.L. c. 21E and/or 310 CMR 40.0000 for which an adjudicatory hearing is not required by M.G.L. c. 30A, unless expressly required by 310 CMR 40.0000.

 

40.0051:   Appeals Relative to Administrative Penalties

 

      Whenever the Department seeks to assess a civil administrative penalty pursuant to M.G.L. c. 21A, § 16, M.G.L. c. 21E and 310 CMR 40.0000, the person who would be assessed the penalty shall have the right to an adjudicatory hearing.  Any request for an adjudicatory hearing thereon shall be made in accordance with M.G.L. c. 21A, § 16, and 310 CMR 5.00:  Administrative Penalty.

 

40.0060:   Special Project Designation Permits

 

      310 CMR 40.0061 through 40.0070, cited collectively as 310 CMR 40.0060, set forth the requirements and procedures for Special Project Designation Permits.

 

40.0061:   Purpose and Eligibility

 

(1)   The Department may designate certain projects as "Special Projects" through its approval of a Special Project Designation Permit.  For disposal site(s) designated as Special Projects, Special Project Designation shall have the effect of:

(a)   extending the deadline for submitting a Tier Classification Submittal as required by 310 CMR 40.0500; or

(b)   extending specific deadline(s) for completing Comprehensive Response Actions (Phases II, III, IV or V) as required by 310 CMR 40.0560(2); and

(c)   establishing an annual compliance assurance fee schedule for the Special Project as described in 310 CMR 4.00:  Timely Action Schedule and Fee Provisions.

 

(2)   Eligible Applicants.  The following entities may apply to the Department for Special Project Designation:

(a)   Any public body politic, including but not limited to any federal, state or municipal governmental entity; or

(b)   Any person who:

1.   is an Eligible Person or Eligible Tenant as  defined in M.G.L. c. 21E and 310 CMR 40.0006 with respect to the proposed Special Project Designation area; and

2.   provides a letter of community support as described in 310 CMR 40.0061(3)(e) from the Chief Municipal Officer(s) of the community(ies) in which the proposed Special Project Designation area is located.

 

(3)   Eligible Projects.   Projects eligible for Special Project Designation Permits may include but are not limited to infrastructure improvement projects (e.g., construction or expansion of rail lines or roadways), redevelopment of one or more properties, or the performance of coordinated response actions addressing multiple disposal sites or a single site with multiple owners.  Eligible projects shall meet each of the following criteria:

(a)   one or more disposal sites are, or are likely to be, located within the boundaries of the project;

(b)   proposed response actions will be managed in a coordinated fashion;

(c)   the applicant has secured adequate financing for the project and

(d)   compliance with the response action deadline(s) for which an extension is sought under the Special Project Designation as described in 310 CMR 40.0061(1)(a) or (b) would unreasonably decrease the cost-effectiveness or feasibility of project implementation;

(e)   for Special Project Designation Permit Applications to extend a specific deadline(s) for Comprehensive Response Actions as described in 310 CMR 40.0061(1)(b), submittal of a Tier Classification for the disposal site(s) included in the Special Project Designation prior to or concurrent with the submittal of the Special Project Designation Permit Application; and

(f)   when the applicant is an Eligible Person or Eligible Tenant as described in 310 CMR 40.0061(2)(b), compliance with the following additional criteria for determining the eligibility of the project:

1.   demonstration of community support for the project by providing a letter of community support in the Special Project Designation Permit Application from each municipality(ies) in which the property(ies)  in the proposed Special Project Designation is located that describes the public benefit(s) of the project including economic development, infrastructure improvement, public housing, recreation or access;

2.    except as provided in 310 CMR 40.0061(3)(f)3., each municipality may submit support for no more than two Special Project Designation Permit applications per annum for applications made by an Eligible Person or Eligible Tenant as described in 310 CMR 40.0061(2)(b), except where the population of the municipality exceeds 50,000, in which case the municipality may submit support for two Special Project Designation Permit Applications plus one additional Special Project Designation Permit Application per 50,000 residents provided the total number per annum does not exceed six;

3.   notwithstanding 310 CMR 40.0061(3)(f)2., when the annual municipal limit has been reached, the Department may consider a Special Project Permit Application made by an Eligible Person or Eligible Tenant as an eligible project upon receiving a written request from the Chief Municipal Officer(s) of each municipality(ies) in which the property(ies) included in the proposed Special Project Designation is located;

 

(4)   No annual limit shall apply to the number of Special Project Designation Permit Applications that may be made by a body politic as described in 310 CMR 40.0061(2)(a).  Special Project Designation Permit Applications made by a body politic in a particular municipality shall not affect the limit on the number of Special Project Permit Applications that may be made by Eligible Person or Eligible Tenant applicants for projects in that municipality.

 

40.0062:   Procedures for Applying for a Special Project Designation Permit

 

(1)   Contents of Application.  Each application filed with the Department shall include, at a minimum, the following:

(a)   a completed Transmittal Form for Permit Application and Payment using the form established by the Department for such purposes;

(b)   the applicable completed Permit Application using the form established by the Department for such purposes;

(c)   the applicable permit application fee payable pursuant to 310 CMR 4.00;

(d)   certification by the applicant that the application fee has been mailed, or hand-delivered to the Department, concurrent with submittal of the application;

(e) an indication of the specific deadline(s) to be extended under the Special Project Determination pursuant to either 310 CMR 40.0061(1)(a) or (b);

(f)   a description of the project that includes:

1.   its expected duration;

2.   an explanation of why a Special Project Designation Permit is necessary to successfully implement the project,

3.   a map of the parcels within and the boundaries of the area for which the Special Project Designation Permit is sought;

4.   a description of any planned redevelopment of the parcels within the boundaries of the Special Project Designation area, that includes the location, size and use of buildings and infrastructure and open space, to the extent known;

5.   the Release Tracking Numbers for any known releases of oil and/or hazardous material at or from the subject properties that have been reported to the Department,  a  description of  the source(s), nature and extent of such releases, to the extent identified and characterized, including any known or probable Exposure Pathways;  and

6.   a description of how the project meets the criteria in 310 CMR 40.0061(3);

(g)   a list of any Status Reports, Phase Reports, or Completion Statements for any response actions that are in progress or have been completed at the time of Special Project Designation Permit Application is made that provides a description of the current status and projected schedule for completion of response actions in progress and the dates on which any completed Reports or Statements were submitted to the Department;

(h)   a description of response actions to be conducted under the Special Project Designation Permit, including a proposed schedule, to the extent such actions have been planned;

(i)   the name, business address, and telephone number of the person who will be conducting response actions under the Special Project Designation Permit;

(j)   when the application is made pursuant to 310 CMR 40.0061(1)(b) and a Tier Classification submittal has not been previously submitted to the Department, a Tier Classification submittal pursuant to 310 CMR 40.0500; notwithstanding 310 CMR 40.0501(6), a single Tier Classification may be provided for multiple parcels and multiple disposal sites within the boundaries of  the Special Project Designation area;

(k)   justification that an extension of the specific deadline(s) sought under the Special Project Designation Permit will not compromise the protection of health, safety, public welfare, or the environment, based on known and potential risks from releases at or from the property(ies) proposed for inclusion in the Special Project Designation and the ability to  manage known and potential risks throughout the duration of the Special Project Designation Permit;

(l)   when the applicant is an Eligible Person or Eligible Tenant as described in 310 CMR 40.0061(2)(b), a letter of community support that describes the public benefit(s) of the project pursuant to 310 CMR 40.0061(3)(f);

(m)   when the applicant is a person as described in 310 CMR 40.0061(2)(b), a certification that he or she is an Eligible Person or Eligible Tenant as defined in M.G.L. c. 21E and 310 CMR 40.0006;

(n)   a copy of the public notice as published pursuant to 310 CMR 40.1403(2)(b) and 310 CMR 40.0062(5) containing the date of publication and name of the newspaper;

(o)   when the applicant is not the Chief Municipal Officer of the community(ies) where the proposed project is located, a copy of the written notices sent to the Chief Municipal Officer(s) and Board(s) of Health as required by 310 CMR 40.0062(5);

(p)   a certification by the applicant and the person described in 310 CMR 40.0062(1)(i) (if different from the applicant) that, except as fully disclosed in the application, he or she is not subject to any outstanding administrative or judicial environmental enforcement action under any federal, state or local law;

(q)   a copy of an access agreement obtained by the applicant from each of the persons who own or control the properties included in the boundaries of the Special Project Designation area, if different from the applicant; and

(r)   the certification of the submittal required by 310 CMR 40.0009 by the applicant and the person described in 310 CMR 40.0062(1)(i) (if different from the applicant).

 

(2)   An application for Special Project Designation Permit shall not be deemed complete if the Department determines that such application:

(a)   fails to contain all information and certifications required by 310 CMR 40.0062(1);

(b)   fails to include the applicable fee established by 310 CMR 4.00:  Timely Action Schedule and Fee Provisions; or

(c)   is incorrectly filled out.

 

(3)   An application for a Special Project Designation Permit, or Special Project Designation Permit Modification, Transfer or Extension shall be reviewed in accordance with the procedures described in 310 CMR 40.0060 and 40.0070.

 

(4)   A Special Project Designation Permit Application to extend a specific deadline(s) pursuant to 310 CMR 40.0061(1)(b) may be submitted concurrently with a Tier Classification submittal.

 

(5)   Public Review of Application.

(a)   Prior to the submission of a Special Project Designation Permit Application or Special Project Designation Permit Modification, Transfer or Extension, each applicant shall take the following actions to provide notice to the public and local officials that the Special Project Designation Permit Application is available at DEP for review and comment:

1.   a public notice pursuant to 310 CMR 40.1403(2)(b) shall be published in a newspaper that circulates in the community(ies) in which the property(ies) included in the proposed Special Project Designation is located and in any newspapers that circulate in any other community(ies) which is, or is likely to be, affected by the disposal site; and

 

2.   when the applicant is not the Chief Municipal Officer of the community(ies) where the project is located, at least three days prior to publication of the public notice, a copy of the written notice shall be delivered by mail or hand to the Chief Municipal Officer(s) and Board(s) of Health in the community(ies) in which the disposal site is located and in any other community(ies) that is, or is likely to be, affected by the disposal site.

(b)   The public notice required by 310 CMR 40.0062(5)(a) shall include, but not be limited to, the following information:

1.   the address(s) of the properties proposed for inclusion in the Special Project Designation;

2.   the DEP Release Tracking Number(s);

3.   the name, address, and telephone number of the applicant(s);

4.   the date on or about which the applicant(s) intends to file the application with the Department;

5.   for an initial Special Project Designation Permit, a brief description of the deadline extension sought;

6.   for Special Project Designation Permit Modifications, Transfers or Extensions, a brief description of proposed modification, transfer or deadline extension sought; and

7.   a description of the procedures by which interested persons may review and comment on the Special Project Designation Permit Application.

(c)   Interested persons may submit written comments related to the Special Project Designation Permit Application within 20 days of the date that such Application is available at DEP for review and comment. Such written comments shall be submitted to the Department by mail or by hand delivery during normal Department business hours and to the Special Project Designation Permit applicant.

(d)   The Department shall consider and respond as it deems appropriate to public comments submitted in accordance with 310 CMR 40.0062(5).

(e)   On its own initiative, the Department may extend the period for submission of public comments.

 

(6)   Response Action Deadlines During Special Project Designation Permit Application Review.  Notwithstanding 310 CMR 40.0501(2):

(a)   the deadline for Tier Classification for a disposal site proposed for inclusion within a Special Project Designation pursuant to 310 CMR 40.0061(1) shall be stayed while the Department is reviewing the Special Project Designation Permit Application;

(b)   the next applicable Comprehensive Response Action deadline for a disposal site proposed for inclusion within a Special Project Designation pursuant to 310 CMR 40.0061(1)(b) shall be stayed while the Department is reviewing the Special Project Designation Permit Application.

 

(7)   Response Action Deadlines if the Special Project Designation is Denied.  If the Special Project Designation is denied by the Department pursuant to 310 CMR 40.0060, then for applications submitted:

(a)   pursuant to 310 CMR 40.0061(1)(a), the deadline for Tier Classification shall be the original deadline for Tier Classification (provided such deadline has not passed) or 90 days from the date of the Department’s denial, whichever is later;

(b)   pursuant to 310 CMR 40.0061(1)(b), the deadline for the next applicable Comprehensive Response Action submittal shall be the original deadline for the submittal (provided such deadline has not passed) or 90 days from the date of the Department’s denial, whichever is later.

 

40.0063:   Approval of Applications for Special Project Designation Permits, and Special Project Designation Permit Modifications, Transfers or Extensions

 

(1)   Special Project Designation Permits and Special Project Designation Permit Modifications, Transfers or Extensions shall be approved in accordance with the process and schedule in 310 CMR 40.0070.

 

(2)   The Department shall consider the criteria in 310 CMR 40.0063(3) and (4) and all other available information when reviewing a Special Project Designation Permit Application or a Modification, Transfer or Extension submitted pursuant to 310 CMR 40.0060, and when making the following decisions:

(a)   to grant a Special Project Designation Permit, or Special Project Designation Permit Modification, Transfer or Extension;

(b)   to grant a Special Project Designation Permit, or Special Project Designation Permit Modification, Transfer or Extension with conditions; or

(c)   to deny a Special Project Designation, or Special Project Designation Permit, Modification, Transfer or Extension.

 

(3)   Department Decision Concerning Special Project Designation Permit and Special Project Designation Permit Modification, Transfer or Extension.  In considering whether to grant or deny an application, the Department shall consider the following:

(a)   the extent to which risks posed by releases at or from property proposed for inclusion in the Special Project Designation have been identified and characterized and whether known or potential risks can likely be managed in a manner that protects health, safety, public welfare, and the environment;

(b)   whether the project meets the eligibility criteria in 310 CMR 40.0061(3);

(c)   whether compliance with the applicable response action deadline(s) described in 310 CMR 40.0500 that would be extended under the Special Project Designation would unreasonably decrease the cost-effectiveness of project implementation;

(d)   the extent to which the implementation and coordination of proposed response actions at the disposal site(s) in the project area is feasible and likely, and whether the applicant and other participants (e.g., property owners, if different from applicant) have agreed to such implementation and coordination;

(e)   the ability and willingness of the applicant to perform necessary response actions;

(f)   the environmental compliance history of the applicant and the party who will implement proposed response actions (if different from the applicant);

(g)   whether significant public comments can be addressed in the decision;

(h)   whether Department oversight of response actions is necessary; and

(i)   any other factor the Department deems relevant to the decision.

 

(4)   The Department may deny a Special Project Designation Permit and Special Project Designation Permit Modification, Transfer or Extension if it determines that:

(a)   the applicant has submitted information in the application that he or she knew or reasonably should have known was false or misleading;

(b)   the application was not completed by an applicable deadline;

(c)   risks posed by releases at or from the property(ies) proposed for inclusion in the Special Project Designation have not been sufficiently identified, and characterized and/or cannot be managed to ensure that the deadline extension(s) sought under the Special Project Designation will not compromise the protection of health, safety, public welfare, and the environment;

(d)   compliance with the response action deadline(s) the applicant is seeking to extend under the Special Project Designation would not unreasonably decrease the cost-effectiveness of project implementation;

(e)   implementation of the proposed response actions is not feasible or likely, or property owners included in the Special Project Designation, if different from the applicant, have not agreed to such implementation;

(f)   there is significant public opposition to granting the Special Project Designation with respect to performance of response actions;

(g)   the applicant is not able or willing to oversee and coordinate implementation of the Special Project; or

(h)   the Department intends to oversee, undertake or arrange for the performance of necessary response actions at the disposal site.

 

(5)   Effect of Special Project Designation.  The Department's decision to grant a Special Project Designation shall have the following effect on response action deadlines of 310 CMR 40.0000.

(a)   For Special Project Designations sought to extend the deadline for Tier Classification pursuant to 310 CMR 40.0061(1)(a), the deadline for Tier Classification shall be extended two years from the deadline specified at 310 CMR 40.0501(2);

(b)   For Special Project Designations sought pursuant to extend a specific deadline(s) for Comprehensive Response Actions pursuant to 310 CMR 40.0061(1)(b), the specified Comprehensive Response Action deadline(s) shall be extended for a period of two years from the applicable deadline(s) in 310 CMR 40.0560;

(c)   Additional deadline extensions may be sought upon the expiration of the Special Project Designation. pursuant to 310 CMR 40.0067.

 

(6)   A Special Project Designation Permit or Special Project Designation Permit Modification, Transfer or Extension shall become effective:

(a)   36 days from the date the complete application is received by the Department, if the Permit is presumptively approved without conditions pursuant to 310 CMR 40.0070(3);

(b)   on the date the Department issues its written approval of the Permit, if approved with conditions;

(c)   36 days from the date the Department issues a Notice of Extended Review, if the Department issues the applicant(s) a Notice of Extended Review in accordance with 310 CMR 40.0070(3)(c) and the Permit is presumptively approved without conditions pursuant to 310 CMR 40.0070(4); or

(d)   on the date the Department issues its written approval of the Permit, if the applicant and the Department by written agreement extend any schedule for timely action or individual portion thereof for the review of a Permit application pursuant to 310 CMR 40.0070(6) or 310 CMR 4.00:  Timely Action Schedule and Fee Provisions.

 

(7)   A Special Project Designation Permit or Special Project Designation Permit Extension shall be effective for two years, unless otherwise established by the Department; any modification or transfer of a permit shall be effective for the remaining duration of the permit being transferred or modified.

 

40.0064:   Special Project Designation Conditions

 

(1)   Any person performing response actions to address a disposal site subject to a Special Project Designation shall comply with M.G.L. c. 21E, 310 CMR 40.0000, the terms and conditions of the Special Project Designation Permit and any other applicable federal, state or local laws.

 

(2)   All Special Project Designation Permits shall have as conditions of Designation the requirement that the Permittee shall:

(a)   oversee and coordinate the Special Project;

(b)   comply with the terms and conditions of response actions established or approved by the Department during the course of the Special Project;

(c)   comply with the notification regulations at 310 CMR 40.0300 for any release or threat of release of oil and/or hazardous material;

(d)   comply with the requirements for conducting Immediate Response Actions to address two- or 72-hour releases or threats of release or Conditions of Substantial Release Migration in accordance with 310 CMR 40.0400;

(e)   provide reasonable access to the parcel owned or controlled by the Permittee to employees, agents and contractors of the Department for all purposes authorized by M.G.L. c. 21E and to other persons performing response actions;

(f)   avoid engaging in activities that could prevent or impede the implementation of reasonably likely response actions in the future;

(g)   for Special Project Designations pursuant to 310 CMR 40.0061(1)(a), file a Tier Classification Submittal for any disposal site that requires further response actions by the date the Special Project Designation Permit expires, unless such Permit is extended pursuant to 310 CMR 40.0067 and 40.0070;

(h) for Special Project Designations pursuant to 310 CMR 40.0061(1)(b), file the next applicable Comprehensive Response Action Submittal for any disposal site that requires further response actions by the date the Special Project Designation Permit expires, unless such Permit is extended pursuant to 310 CMR 40.0067 and 40.0070;

(i)   provide the Department with a report describing the status of response actions on an annual basis, unless an alternative schedule is established in the Special Project Designation Permit; and

(j)   comply with any other conditions necessary to ensure the appropriate implementation of response actions.

 

(3)   A Special Project Designation Permit shall not grant any property rights or exclusive privileges, nor shall it authorize any injury to private property or taking of property rights.

 

40.0065:   Modification of Special Project Designation Permit

 

(1)   The permittee may apply for a modification to a Special Project Designation Permit to add or remove property subject to the Special Project Designation.

 

(2)   A request for a Special Project Designation Permit Modification shall include the following:

(a)   a completed transmittal form using the form established by the Department for such purposes;

(b)   a description of and rationale for the modification sought; and

(c)   the certification required by 310 CMR 40.0009.

 

40.0066:   Transfer of Special Project Designation Permit

 

(1)   A permittee may apply for a transfer of Special Project Designation.  An application for transfer of Special Project Designation shall include the following:

(a)   a completed transmittal form using the form established by the Department for such purposes;

(b)   a statement as to why the transfer is sought;

(c)   a certification required by 310 CMR 40.0009 from the current permittee;

(d)   written consent by the transferee to the terms and conditions of the Special Project Designation Permit;

(e)   a certification required by 310 CMR 40.0009 from the transferee and the person described in 310 CMR 40.0062(1)(i) (if different from the transferee);

(f)   a certification that the transferee is an Eligible Applicant pursuant to 310 CMR 40.0061(2); and

(g)   the compliance history(ies) and certification(s) of the transferee and the person described in 310 CMR 40.0062(1)(i) (if different from the transferee) that, except as fully disclosed in the application, he or she is not subject to any outstanding administrative or judicial environmental enforcement action under any federal, state or local law.

 

40.0067:   Extension of Special Project Designation Permit

 

(1)   A permittee may apply for an extension of Special Project Designation.  An application for an extension of Special Project Designation shall include the following:

(a)   a completed transmittal form using the form established by the Department for such purposes;

(b)   a statement as to why the extension is sought;

(c)   a report describing the status of response actions and any known instances of noncompliance with 310 CMR 40.0000 associated with the Special Project Designation Permit, and a plan and schedule for proposed or continuing response actions;

(d)   an LSP Opinion indicating that the plans and/or reports submitted are in conformance with the requirements of 310 CMR 40.0000;

(e)   a certification by the applicant and the person described in 310 CMR 40.0062(1)(i) (if different from the applicant) that, except as fully disclosed in the request for extension, he or she is not subject to any outstanding administrative or judicial environmental enforcement action under any federal, state or local law; and

(f)   the certification required by 310 CMR 40.0009 by the permittee and the person described in 310 CMR 40.0062(1)(i) (if different from the applicant).

 

(2)   A Special Project Designation Permit Extension does not forgive any noncompliance of the permittee that resulted from the late submittal or failure to submit any response action submittal due during the duration of the Special Project Designation Permit.

 

40.0068:   Termination of Special Project Designation Permit

 

(1)   A Permittee may voluntarily surrender a Special Project Designation Permit provided that such Permittee notifies the Department in writing of such surrender using the transmittal form established by the Department for such purpose and submits a report to the Department describing the status of response actions.  If applicable, the Permittee shall also comply with 310 CMR 40.0170(10).

 

(2)   Special Project Designation Permit shall terminate if:

(a)   the Permittee voluntarily surrenders the Special Project Designation Permit as described in 310 CMR 40.0068(1);

(b)   the Permittee submits a Permanent Solution Statement pursuant to 310 CMR 40.1000 for the disposal site(s) covered by the Special Project Designation Permit;

(c)   an assessment is completed that demonstrates that no releases or threats of release have occurred at or from the properties subject to Special Project Designation Permit; or

(d)   the Special Project Designation Permit expires.

 

40.0069:   Suspension and Revocation of Special Project Designation Permit

 

(1)   The Department may suspend or revoke a Special Project Designation Permit for cause including, but not limited to, the following:

(a)   any violation of M.G.L. c. 21E, 310 CMR 40.0000, or Special Project Designation Permit condition, or other applicable law or regulation;

(b)   the submittal of false or misleading information by the Permittee; or

(c)   for nonpayment of annual compliance assurance fees required pursuant to 310 CMR 4.00:  Tmely Action Schedule and Fee Provisions.

 

(2)   Prior to the suspension or revocation of a Special Project Designation Permit for cause, the Department shall issue a notice of intent to suspend or revoke the Special Project Designation Permit which describes the basis for the proposed suspension or revocation and informs the person to whom it is issued of his or her right to request an adjudicatory hearing pursuant to M.G.L. c. 30A.

 

(3)   Upon suspension or revocation of a Special Project Designation Permit, the Department shall establish new deadlines for the Tier Classification or Comprehensive Response Action deadline(s) extended under the Special Project Designation Permit for any disposal site that requires further response actions.

 

40.0070:   Approval Process for Special Project Designation Permits

 

(1)   General.  310 CMR 40.0070, together with 310 CMR 4.04:  Permit Applications Schedules and Fee, define the review and approval process for a Special Project Designation Permit Application or a Special Project Designation Permit Modification, Transfer or Extension.  The Department shall consider the requirements and criteria at 310 CMR 40.0060, when making a decision to grant or deny a Special Project Designation Permit or a Modification, Transfer or Extension of a Special Project Designation Permit.

 

(2)   Commencement of Schedule.  For purposes of 310 CMR 40.0070 and 310 CMR 4.04(2)(a), the computation of time periods shall commence on the day following the day a complete Special Project Designation Permit Application, Modification, Transfer or Extension  is received at the appropriate regional office of the Department or on the day following the day the applicable permit application fee is received, as described in 310 CMR 40.0008, whichever occurs later.


(3)   A Special Project Designation Permit, or Modification, Transfer or Extension of a Special Project Designation Permit, shall be presumed approved without conditions 36 days from the date of the commencement of the Application time period pursuant to 310 CMR 40.0070(2), unless prior to the end of the 36 day period, the Department provides to the applicant(s) one of the following:

(a)   a decision to deny the applicant a Special Project Designation Permit, or Modification, Transfer or Extension of a Special Project Designation Permit, based on the criteria in 310 CMR 40.0063(3) and (4);

(b)   a decision to grant the applicant a Special Project Designation Permit, or Modification, Transfer or Extension of a Special Project Designation Permit with conditions, based on the criteria in 310 CMR 40.0063(3) and (4); or

(c)   a Notice of Extended Review indicating that, because of the nature and complexity of the review, based on the criteria set forth in 310 CMR 40.0063(3) and (4), the Department requires an additional 36 days from the date the Notice of Extended Review is issued by the Department to complete its review.

 

(4)   If the Department issues the applicant(s) a Notice of Extended Review in accordance with 310 CMR 40.0070(3)(c), the Special Project Designation Permit or Modification, Transfer or Extension shall be presumed approved without conditions 72 days from the date of the commencement of the Application time period, pursuant to 310 CMR 40.0070(2), unless the Department provides the applicant(s) with one of the following prior to 72 days from the date of the commencement of the Application time period:

(a)   a decision to deny the applicant Special Project Designation Permit, or Modification, Transfer or Extension of a Special Project Designation Permit, based on the criteria in 310 CMR 40.0063(3) and (4); or

(b)   a decision to grant the applicant a Special Project Designation Permit, or Modification, Transfer or Extension of a Special Project Designation Permit with conditions, based on the criteria in 310 CMR 40.0063(3) and (4).

 

(5)   Presumptive approval of a Special Project Designation Permit, Modification, Transfer or Extension, pursuant to 310 CMR 40.0070 means the RP, PRP or Other Person has approval to proceed with  Response Actions in compliance with all applicable provisions of 310 CMR 40.0000.  Such presumptive approval shall not be construed as approval by the Department of the scope or adequacy of plans or of the response actions as actually conducted, or as forgiveness of non-compliance with any provision of 310 CMR 40.0000.