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 .

 

40.0100:   Overview of Roles and Responsibilities in Response Actions

 

(1)   The Department is authorized to take or arrange for such response actions as it reasonably deems necessary to respond to releases or threats of release of oil and/or hazardous material.  The Department has final administrative authority and discretion to determine any and all of the following:

(a)   whether a release of oil and/or hazardous material has occurred and/or whether a threat of release or Imminent Hazard exists;

(b)   whether a release or threat of release of oil and/or hazardous material requires a response action;

(c)   the appropriate extent and nature of a response action consistent with M.G.L. c. 21E and 310 CMR 40.0000;

(d)   the appropriate level of Department oversight of response actions undertaken by RPs, PRPs and Other Persons; and

(e)    whether a response action, application, Opinion or other submittal is in compliance with M.G.L. c. 21E, 310 CMR 40.0000 and other applicable requirements.

 

(2)   The Department, PRPs and Other Persons may undertake necessary response actions, provided such response actions are performed in compliance with M.G.L. c. 21E, 310 CMR 40.0000 and other applicable laws. 

 

(3)   RPs shall undertake necessary response actions in compliance with M.G.L. c. 21E, 310 CMR 40.0000 and other applicable laws.

 

(4)   RPs, PRPs and Other Persons shall involve local, state, and federal agencies and organizations in decisions regarding response actions to the extent required by M.G.L. c. 21E, 310 CMR 40.0000 and other applicable laws.

 

(5)   RPs, PRPs and Other Persons shall involve the public in decisions regarding response actions to the extent required by M.G.L. c. 21E, 310 CMR 40.0000 and other applicable laws.

 

(6)   No LSP Opinion shall be required for any response action performed by the Department under 310 CMR 40.0000.

 

40.0101:   Role of the Department in Response Actions

 

(1)   The Department may, without limitation:

(a)   review and evaluate reports of releases or threats of release of oil and/or hazardous material and Imminent Hazards and, when reasonably necessary, perform or arrange for the performance of one or more response actions;

(b)   collect or oversee the collection of pertinent facts regarding releases or threats of release of oil and/or hazardous material;

(c)   require persons undertaking response actions to collect pertinent facts regarding releases or threats of release of oil and/or hazardous material;

(d)   perform or arrange for performance of response actions by the Department, and/or RPs, PRPs or Other Persons;

(e)   establish Interim Deadlines for the completion of response actions;

(f)   issue permits, including, but not limited, to approvals and conditional approvals, to persons seeking to carry out response actions at those sites for which a permit is required by M.G.L. c. 21E and 310 CMR 40.0000;

(g)   coordinate and oversee response actions conducted by RPs, PRPs or Other Persons to assure the consistency of the response actions with M.G.L. c. 21E and 310 CMR 40.0000;

(h)   audit response actions not overseen or conducted by the Department;

(i)   establish an administrative record upon which the selection of a response action is based;

(j)   conduct or oversee, and/or require persons carrying out one or more response actions to conduct, Public Involvement Activities;

(k)   conduct enforcement and seek reimbursement and compensation to which the Commonwealth is entitled pursuant to M.G.L. c. 21E;

(l)   provide Technical Assistance Grants to eligible applicants in accordance with 310 CMR 40.1400;

(m)   seek the resources of federal or other state agencies or local governments to respond to releases or threats of release of oil and/or hazardous material;

(n)   authorize persons to enter any site, or other location to be investigated as a possible disposal site, not owned or operated by him or her for the purpose of performing one or more response actions upon the consent of the owner or operator thereof, in accordance with 310 CMR 40.0173;

(o)   request persons to provide information to the Department with respect to a release or threat of release or any site or other location where oil and/or hazardous material is or might be located;

(p)   acquire real property, or any interest therein, by purchase, gift or lease, or by eminent domain under the provisions of M.G.L. c. 79, if necessary to carry out the purposes of M.G.L. c. 21E;

(q)   restrict the use of property that is or was a site, and modify or release such restrictions, if necessary to carry out the purposes of M.G.L. c. 21E;

(r)   record, or cause, allow or require the owner of property that is or was a site to record, notice of the restrictions of the use of the property, or of the modification or release of the restrictions, in accordance with M.G.L. c. 21E, § 6;

(s)   publish and maintain lists of Location to be Investigated and disposal sites;

(t)   conduct compliance assistance to provide guidance to persons undertaking response actions to assist such persons in achieving compliance with M.G.L. c. 21E, 310 CMR 40.0000 and other applicable requirements;

(u)   specify requirements to prevent and control, and to counter the effects of, releases or threats of release of oil and/or hazardous material, in accordance with M.G.L. c. 21E, § 6.  Such requirements may include, without limitation, but without duplication of requirements prescribed in other programs of the Department, the preparation of contingency plans, the acquisition, construction, maintenance and operation of equipment, facilities and resources for the monitoring, prevention and control of releases, and the staffing and training of personnel regarding the prevention and control of releases of oil or hazardous material; and

(v)   take any other action authorized by M.G.L. c. 21E and/or 310 CMR 40.0000 as it deems reasonably necessary.

 

(40.0102 through 40.0104:   Roles of Other State Agencies and Organizations:  Reserved)

 

(40.0105 through 40.0109:   Role of Local Government:   Reserved)

 

40.0110:   Adequately Regulated Sites

 

(1)   Purpose.  The regulations published at 310 CMR 40.0110 through 310 CMR 40.0114, cited collectively as 310 CMR 40.0110, establish requirements and procedures in accordance with M.G.L. c. 21E, § 3(c), for limiting the applicability of M.G.L. c. 21E and 310 CMR 40.0000 to response actions at disposal sites deemed adequately regulated by the Department under another program or by another government agency.

 

(2)   No provision of 310 CMR 40.0110 shall be construed to relieve any person from any liability for Response Action Costs or damages under M.G.L. c. 21E or from any obligation for any administrative, civil or criminal penalty, fine, settlement, or other damages.

 

(3)   No provision of 310 CMR 40.0110 shall be construed to limit the rights of private parties to seek contribution, reimbursement or equitable share from any other person under M.G.L. c. 21E.

 

40.0111:   Federal Superfund Program

 

(1)   The Department shall deem response actions at a disposal site subject to CERCLA adequately regulated for purposes of compliance with 310 CMR 40.0000, provided:

(a)   for sites at which a ROD has not been issued,

1.   the response actions are conducted in compliance with the National Contingency Plan and any applicable EPA approvals or orders; and

2.   subsequent site assessment, cleanup and/or closure activities are addressed pursuant to CERCLA; or

(b)   the Department concurs with the ROD and/or other EPA decisions for remedial actions at such site in accordance with 40 CFR 300.515(e); or

(c)   if the Department requests that EPA change or expand the EPA-selected remedial action, EPA agrees to integrate the Department's proposed changes or expansions into the planned CERCLA remedial action in accordance with 40 CFR 300.515(f); or

(d)   if the Department does not concur with the ROD and/or other EPA decisions for remedial actions at such site, the EPA-selected remedial action is thereafter modified so as to integrate the Department's proposed changes or expansions into the planned CERCLA remedial work in accordance with CERCLA section 121(f)(2); or

(e)   if the Department reviewed the ROD and/or other EPA decision for remedial actions at such site and has no comment with respect thereto.

 

(2)   310 CMR 40.0000 shall apply to any release or threat of release of oil and/or hazardous material and to any response action that is not subject to CERCLA. 

 

(3)   The Department shall take appropriate actions to obtain any federal monies available to fund response actions.

 

(4)   The Department shall seek to incorporate the requirements, standards and procedures established by M.G.L. c. 21E and/or 310 CMR 40.0000, to the extent practicable as follows:

(a)   in each site-specific cooperative agreement;

(b)   in each Superfund state contract under CERCLA; and

(c)   during the processes set forth in 40 CFR 300.515(d) and (e).

 

(5)   No provision in 310 CMR 40.0111 shall be construed to limit or waive the Department's authority to concur with the ROD for remedial actions at any NPL site.

 

(6)   No provision in 310 CMR 40.0111 shall be construed to limit or waive the application of any state law or regulation other than M.G.L. c. 21E and 310 CMR 40.0000, or any authority delegated to any agency of the Commonwealth pursuant to federal law.

 

(7)   No provision in 310 CMR 40.0111 shall be construed to limit or waive the Commonwealth's authority under CERCLA, including, but not limited to, the right to:

(a)   be substantially and meaningfully involved in the initiation, development and selection of response actions at NPL Sites; and

(b)   bring or maintain an action under CERCLA or any other law for purposes of attaining state standards, requirements, criteria or limitations with respect to CERCLA remedial work.

 

(8)   At disposal sites deemed by the Department to be Adequately Regulated pursuant to 310 CMR 40.0111 where the selected remedy relies, in whole or in part, on the imposition of land use controls to minimize the potential for human or ecological exposure to contamination or to protect the integrity of a remedy, such controls may be implemented through a Notice of Activity and Use Limitation, in accordance with 310 CMR 40.1070(1)(c) and subject to the written approval of EPA and the Department.  Notices of Activity and Use Limitation shall be implemented on a form developed by the Department for such purpose, and shall be subject to the following:

(a)   the provisions of 310 CMR 40.1074, except as otherwise provided in 310 CMR 40.1070(4);

(b)   the obligation to incorporate into the Notice of Activity and Use Limitation, in full or by reference, the land use control requirements set forth in and/or developed pursuant to the ROD and/or the land use control plan approved by EPA;

(c)   the obligation to notify and seek approval of EPA and the Department  of any proposed change in land use that is not provided for in the Notice of Activity and Use Limitation; and

(d)   EPA and Department approval of any Amendment of a Notice of Activity and Use Limitation or Termination of a Notice of Activity and Use Limitation.

 

(9)   Compliance with the terms and conditions of a Notice of Activity and Use Limitation implemented at an adequately regulated disposal site pursuant to 310 CMR 40.0111(8) is subject to audit and enforcement pursuant to M.G.L. c. 21E and 310 CMR 40.0000 and M.G.L. c. 21A, § 16 and 310 CMR 5.00:  Administrative Penalty.

 

(10)   Adequately regulated disposal sites at which remedial actions have been completed in accordance with the ROD for that site, and subsequent design, construction, and other pertinent plans have been approved by EPA, and EPA has certified completion of the remedial action, will be considered to have achieved a Permanent Solution for purposes of M.G.L. c. 21E and 310 CMR 40.0000 for those hazardous substances subject to such remedial actions.

 

40.0112:   Federal Corrective Action Pursuant to HSWA

 

(1)   General.  HSWA Corrective Actions performed by persons other than the Department shall be deemed adequately regulated for purposes of 310 CMR 40.0000, provided the person undertaking such response actions does so in compliance with the terms and conditions of the applicable license, permit, approval or order issued pursuant to 42 U.S.C. §§ 6928(a), 6928(h), 6924(u) or 6924(v) and the following:

(a)   the general provisions in 310 CMR 40.0001 through 40.0099, except:

1.   the requirements for LSP Opinions set forth in 310 CMR 40.0015;

2.   the requirements for force majeure set forth in 310 CMR 40.0025;

3.   the provisions of 310 CMR 40.0050 with respect to permit decisions only;

(b)   the requirements and provisions in 310 CMR 40.0101 through 40.0199, except:

1.   the general requirements for conducting response actions set forth in 310 CMR 40.0190;

2.   the provisions of 310 CMR 40.0193 applicable to technical justification;

(c)   the requirements and procedures in 310 CMR 40.0300 for notifying the Department of a release, threat of release and/or Imminent Hazard, except those releases for which 120 day notification is required by 310 CMR 40.0315;

(d)   the requirements and procedures in 310 CMR 40.0405 through 40.0429 applicable to Immediate Response Actions, except:

1.   for the following Conditions of Substantial Release Migration:

a   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;

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

c   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;

2.   requirements for approval of the Department set forth in 310 CMR 40.0420, if EPA has approved the response actions;

(e)   the requirements and procedures in 310 CMR 40.0900 and 40.1000 applicable to Risk Characterization; provided, however:

1.   such requirements shall apply only to locations:

a.   outside the boundary of a landfill either licensed pursuant to 310 CMR 30.800 or having an interim license pursuant to 310 CMR 30.099(6); and

b.   outside the boundary of a landfill which has been closed pursuant to 310 CMR 30.633; and

2.   the requirements therein applicable to Permanent or Temporary Solution Statements shall not apply; and

3.   the requirements therein shall not be deemed to preempt more stringent applicable federal and state standards; and

(f)   the requirements and procedures for Public Involvement Activities and Technical Assistance Grants in 310 CMR 40.1400 shall apply to the extent applicable and practicable as determined by the Department.

 

(2)   Adequate Regulation During Pendency of Appeal.  Unless otherwise provided by the Department, HSWA Corrective Actions performed by persons other than the Department shall be deemed adequately regulated for purposes of 310 CMR 40.0000 while an appeal from the applicable license, permit, approval or order is pending, provided the person undertaking such response actions complies with the following:

(a)   the general provisions in 310 CMR 40.0001 through 40.0099, except:

1.   the requirements for force majeure set forth in 310 CMR 40.0025;

2.   the provisions of 310 CMR 40.0050 with respect to permit decisions only;

(b)   the requirements and provisions in 310 CMR 40.0101 through 40.0199, except:

1.   the general requirements for conducting response actions set forth in 310 CMR 40.0190;

2.   the provisions of 310 CMR 40.0193 applicable to technical justification;

(c)   the requirements and procedures in 310 CMR 40.0300 for notifying the Department of a release, threat of release and/or Imminent Hazard, except those releases for which 120 day notification is required by 310 CMR 40.0315;

(d)   the requirements and procedures in 310 CMR 40.0405 through 40.0467 applicable to Immediate Response Actions, Release Abatement Measures and Utility-related Abatement Measures;

(e)   the requirements and procedures in 310 CMR 40.0900 and 40.1000 applicable to Risk Characterization; provided, however:

1.   such requirements shall apply only to locations:

a.   outside the boundary of a landfill either licensed pursuant to 310 CMR 30.800:  Licensing Requirements and Procedures or having an interim license pursuant to 310 CMR 30.099(6); and

b.   outside the boundary of a landfill which has been closed pursuant to 310 CMR 30.633:  Closure and Post-closure Care; and

2.   the requirements therein applicable to Permanent or Temporary Solution Statements shall not apply; and

3.    the requirements therein shall not be deemed to preempt more stringent applicable federal and state standards; and

(f)   the requirements and procedures for Public Involvement Activities and Technical Assistance Grants in 310 CMR 40.1400 shall apply to the extent applicable and practicable as determined by the Department.

 

(3)   Any person who is performing a HSWA Corrective Action at a disposal site deemed adequately regulated pursuant to 310 CMR 40.0112 shall concurrently submit to the Department a copy of any document submitted to EPA for approval.

 

(4)   In order to ensure compliance with those requirements and procedures in 310 CMR 40.0000 which are applicable to HSWA Facilities deemed adequately regulated pursuant to 310 CMR 40.0112, the Department may conduct an audit of any RP, PRP or Other Person, or any response action, including, but not limited to, any HSWA Corrective Action, or any HSWA Facility that is a site in accordance with 310 CMR 40.1100.

 

(5)   No provision of 310 CMR 40.0112 shall be construed to limit or waive any of the Commonwealth's authority or rights under RCRA, including, but not limited to, the authority or right to:

(a)   provide comment or to appeal any license, permit approval or order proposed by EPA;

(b)   seek and obtain authorization to administer and enforce a hazardous waste program, including, but not limited to, authority over HSWA Corrective Actions; and

(c)   enter into agreements to establish a federal-state partnership to carry out the purposes of RCRA. 

 

(6)   Notwithstanding any provision of 310 CMR 40.0000 to the contrary, except 310 CMR 40.0112(2), no person undertaking response actions at a HSWA Facility which the Department deems adequately regulated pursuant to a license, permit, approval or order issued pursuant to 42 U.S.C. §§ 6928(a), 6928(h), 6924(u) or 6924(v) shall be required to engage or employ a Licensed Site Professional for purposes of having such professional render one or more LSP Opinions with respect to such HSWA Corrective Action; provided, however, that such person shall employ or engage an LSP for purposes of 310 CMR 40.0035(1)(h), unless otherwise approved by the Department.

 

40.0113:   RCRA Authorized State Hazardous Waste Program (M.G.L. c. 21C and 310 CMR

                 30.000:  Hazardous Waste)

 

(1)   General.  Response actions at 21C Facilities performed by persons other than the Department and permitted, approved or ordered by the Department pursuant to M.G.L. c. 21C and/or 310 CMR 30.000:  Hazardous Waste shall be deemed adequately regulated for purposes of 310 CMR 40.0000, provided the person undertaking such response actions does so in compliance with the terms and conditions of any such permit, order or approval and the following:

(a)   the general provisions in 310 CMR 40.0001 through 310 CMR 40.0099, except:

1.   the requirements for LSP Opinions set forth in 310 CMR 40.0015;

2.   the requirements for force majeure set forth in 310 CMR 40.0025; and

3.   the provisions of 310 CMR 40.0050 with respect to permit decisions only;

(b)   the requirements and provisions in 310 CMR 40.0101 through 310 CMR 40.0199, except:

1.   the general requirements for conducting response actions set forth in 310 CMR 40.0190;

2.   the provisions of 310 CMR 40.0193 applicable to technical justification;

(c)   the requirements and procedures in 310 CMR 40.0300 for notifying the Department of a release, threat of release and/or Imminent Hazard, except those releases for which 120 day notification is required by 310 CMR 40.0315;

(d)   the requirements and procedures in 310 CMR 40.0405 through 40.0429 applicable to Immediate Response Actions, except for the following Conditions of Substantial Release Migration:

1.   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;

2.   releases to the groundwater that have migrated or are expected to migrate more than 200 feet per year; or

3.   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;

(e)   the requirements and procedures in 310 CMR 40.0900 and 40.1000 applicable to Risk Characterization; provided, however:

1.   such requirements shall apply only to locations:

a.   outside the boundary of a landfill either licensed pursuant to 310 CMR 30.800:  Licensing Requirements and Procedures or having an interim license pursuant to 310 CMR 30.099(6); and

b.   outside the boundary of a landfill which has been closed in accordance with 310 CMR 30.633:  Closure and Post-closure Care;

2.   the requirements therein applicable to Permanent or Temporary Solution Statements shall not apply; and

3.   the requirements therein shall not be deemed to preempt more stringent applicable federal or state standards; and

(f)   the requirements and procedures for Public Involvement Activities and Technical Assistance Grants in 310 CMR 40.1400 shall apply to the extent applicable and practicable as determined by the Department.

 

(2)   Notwithstanding any provision of 310 CMR 40.0000 to the contrary, no person undertaking response actions at a 21C Facility which the Department deems adequately regulated by M.G.L. c. 21C and 310 CMR 30.000:  Hazardous Waste shall be required to engage or employ a Licensed Site Professional for purposes of having such professional render one or more LSP Opinions; provided, however, that such person shall employ or engage an LSP for purposes of 310 CMR 40.0035(1)(h), unless otherwise approved by the Department.

 

40.0114:   Solid Waste Management Facilities

 

(1)   General.  Response actions performed by persons other than the Department at Solid Waste Management Facilities permitted, approved or ordered by the Department pursuant to M.G.L. c. 21H, M.G.L. c. 111, § 150A and/or 310 CMR 19.000 shall be deemed adequately regulated for purposes of 310 CMR 40.0000, provided the person undertaking such response actions does so in compliance with the terms and conditions of any such permit, order or approval and the following:

(a)   the general provisions in 310 CMR 40.0001 through 40.0099, except:

1.   the requirements for LSP Opinions set forth in 310 CMR 40.0015;

2.   the requirements for force majeure set forth in 310 CMR 40.0025; and

3.   the provisions of 310 CMR 40.0050 with respect to permit decisions only;

(b)   the requirements and provisions in 310 CMR 40.0101 through 40.0199, except:

1.   the general requirements for conducting response actions set forth in 310 CMR 40.0190;

2.   the provisions of 310 CMR 40.0193 applicable to technical justification;

(c)   the requirements and procedures in 310 CMR 40.0300 for notifying the Department of a release, threat of release and/or Imminent Hazard, except those releases for which 120 day notification is required by 310 CMR 40.0315;

(d)   the requirements and procedures in 310 CMR 40.0405 through 40.0429 applicable to Immediate Response Actions, except: for the following Conditions of Substantial Release Migration:

1.   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;

2.   releases to the groundwater that have migrated or are expected to migrate more than 200 feet per year; or

3.   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;

(e)   the requirements and procedures in 310 CMR 40.0900 and 40.1000 applicable to Risk Characterization; provided, however:

1.   such requirements shall apply only to locations outside the boundary of a landfill permitted pursuant to 310 CMR 19.020 or outside the boundary of a landfill which has been closed in accordance with 310 CMR 19.140:  Landfill Closure Requirements;

2.   the requirements therein applicable to Permanent or Temporary Solution Statements shall not apply; and

3.   the requirements therein shall not be deemed to preempt more stringent applicable federal or state standards; and

(f)   the requirements and procedures for Public Involvement Activities and Technical Assistance Grants in 310 CMR 40.1400 shall apply to the extent applicable and practicable as determined by the Department.

 

(2)   Notwithstanding any provision of 310 CMR 40.0000 to the contrary, no person undertaking response actions at a Solid Waste Management Facility which the Department deems adequately regulated by M.G.L. c. 21H, M.G.L. c. 111, § 150A and 310 CMR 19.000:  Solid Waste Management shall be required to engage or employ a Licensed Site Professional for purposes of having such professional render one or more LSP Opinions; provided, however, that such person shall employ or engage an LSP for purposes of 310 CMR 40.0035(1)(h), unless otherwise approved by the Department.

 

40.0120:   Coordination with Responses by the United States Coast Guard to Discharges of Oil

 

(1)   Except as provided by 310 CMR 40.0120(2) and (3), response actions performed by the U.S. Coast Guard, including, but not limited to, response actions performed by its contractors under its supervision and control, pursuant to the Federal Water Pollution Control Act, 33 U.S.C. 1321(c), in response to a release of oil into navigable waters shall be exempt from the following requirements:

(a)   any requirement to obtain a permit, approval or other authorization from the Department issued pursuant to M.G.L. c. 21E or the MCP for such response actions;

(b)   any requirement to employ or engage a Licensed Site Professional for purposes of performing such response actions;

(c)   any requirement to submit a plan or report to the Department for such response actions under M.G.L. c. 21E or the MCP, provided that the U.S. Coast Guard, upon request by the Department, provides the Department with a copy of any and all plans and reports prepared pursuant to the Federal Water Pollution Control Act, 33 U.S.C. 1321(c); and

(d)   any requirement to submit a Permanent or Temporary Solution Statement to the Department for such a release.

 

(2)   The exemption in 310 CMR 40.0120(1) shall not apply to any release of oil into navigable waters for which the U.S. Coast Guard is an RP or PRP.

 

(3)   Notwithstanding 310 CMR 40.0120(1)(b), the U.S. Coast Guard shall employ or engage a Licensed Site Professional for purposes of complying with the requirements set forth in 310 CMR 40.0035(1)(h).

 

(4)   No provision in 310 CMR 40.0120 shall be construed to relieve any RP or PRP of his or her responsibility for complying with M.G.L. c. 21E and the MCP.

 

(5)   No provision in 310 CMR 40.0120 shall be construed to relieve the U.S. Coast Guard or any other party of its responsibility under M.G.L. c. 21E, the MCP or any other applicable law for notifying the Department of a release or threat of release of oil or hazardous material.

  

(6)   No provision in 310 CMR 40.0120 shall be construed to relieve the U.S. Coast Guard or any other party of the necessity of complying with all other applicable federal, state and local laws.

 

40.0150:   Role of Other Persons

 

(1)   Any person threatened or damaged by a release or threat of release of oil and/or hazardous material, and any Other Person, may undertake response actions, provided such response actions are performed in compliance with M.G.L. c. 21E, 310 CMR 40.0000 and any other applicable laws.

 

(2)   As provided in M.G.L. c. 21E, § 4, any person who without charge renders assistance in a response action at the request of a duly authorized representative of the Department shall not be held liable, notwithstanding any other provision of law, for civil damages as a result of any act or omission by such person in removing oil and/or hazardous material, except for acts or omissions of gross negligence or willful misconduct.

 

(3)   As provided in M.G.L. c. 21E, § 4, any person, except a person who is liable pursuant to M.G.L. c. 21E, § (5)(a)(1), who provides care, assistance or advice in response to a release or threat of release of oil into or onto the tidal waters of the United States, including, without limitation, the territorial sea, or to any tidal shorelines adjoining any waters of the United States, or to the Zone established by Presidential Proclamation No. 5030, dated March 10, 1983, including, without limitation, the ocean waters of the areas referred to as "eastern special areas" in Article 3(1) of the Agreement between the United States of America and the Union of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990, which is consistent with applicable state law, or the NCP or as otherwise directed by the federal on-scene coordinator predesignated by EPA or the United States Coast Guard to coordinate and direct a federal response for oil removal under subpart D of the NCP, or by the state official with responsibility for oil spill response, shall not be liable for removal costs or damages which result from actions taken or omitted in the course of providing such care, assistance or advice, except with respect to personal injury, wrongful death, gross negligence or willful misconduct, notwithstanding any other law to the contrary.  

 

40.0160:   Departmental Notice to Responsible Parties and Potentially Responsible Parties

 

(1)   Notices of Responsibility.

(a)   The Department shall attempt to identify and notify RPs and PRPs of their potential liability under M.G.L. c. 21E through the issuance of a Notice of Responsibility (NOR) prior to taking or arranging a response action.  The determination of whom to notify of their potential liability under M.G.L. c. 21E rests in the sole discretion of the Department.  The Department's failure to notify any particular RP or PRP shall not preclude recovery by the Commonwealth or any other person against that RP or PRP for any reimbursement or compensation to which the Commonwealth or that person is entitled, nor shall it preclude the Department or any other person from taking any other action authorized or required by M.G.L. c. 21E, 310 CMR 40.0000, any order or determination issued by the Department or any other law.

(b)   The Department may notify RPs and PRPs, orally or in writing, of their potential liability under M.G.L. c. 21E.  If the Department provides such oral notice, the Department shall follow up such notice with a written NOR.  Written NORs shall include a summary of actions undertaken to date at the site by the Department, RPs, PRPs and Other Persons and a description of the following:

1.   the  actions which the Department currently determines are necessary to respond to the release or threat of release;

2.   the procedure by which, and extent to which, the RP or PRP can become involved in the response action; and

3.   the liability which the RP or PRP may incur as a result of the release or threat of release.

 

 

(2)   Notice of Intent To Take a Response Action.

(a)   The Department shall attempt to notify the owner or operator of a site, or a fiduciary or secured lender that has title to or possession of a site, from or at which there is or has been a release or threat of release of oil and/or hazardous material of the Department's intent to perform a response action at the site.

(b)   Such notice may be made orally or in writing.  The Department shall provide written notice of its intent to perform a response action whenever time allows.

(c)   Such notice will not be given if the Department is unable to identify or locate the owner or operator, or fiduciary or secured lender that has title to or possession of the site, or when providing such notice would be impractical because of an emergency or other circumstances.  In cases where the notice is impractical in view of the emergency or other circumstances, the Department shall promptly thereafter notify the owner or operator, or the fiduciary or secured lender that has title to or possession of the site, in writing that the Department has undertaken a response action at the site.

(d)   Failure by the Department to give notice to an owner or operator of the Department's intention to perform a response action shall not limit or preclude any RP's or PRP's liability pursuant to M.G.L. c. 21E, 310 CMR 40.0000 or any other law.

 

40.0165:   Departmental Requests for Information (RFI)

 

(1)   Upon reasonable request, any person shall furnish information, and provide the Department access to any and all documents, material to a release or threat of release of oil and/or hazardous material or any site or other location where oil and/or hazardous material is or might be located.  The Department may request any person to furnish such information through the issuance of a Request for Information.

 

(2)   The Department may require any person to whom a Request for Information is directed to promptly amend or supplement any response thereto upon such person's obtaining new information which is material to the RFI or to correct any errors or omissions in any response thereto later discovered by such person.  Such a requirement may be imposed in the RFI itself.

 

(3)   A person to whom a Request for Information is directed shall separate those parts of each and every document responsive to such request which such person claims are protected from disclosure from those parts of the documents to which such person makes no such claim; provided, however, that if such person claims that a document sought, or any part thereof, is a trade secret protected from disclosure, such person shall submit the entire document to the Department together with a request for confidentiality in accordance with 310 CMR 3.00.  If a person to whom an RFI is directed claims a document sought, or any part thereof, is protected from disclosure, such person shall submit to the Department those parts which he or she does not claim are entitled to protection with a statement as to the nature of the protected information and the basis for the claim that the information is protected from disclosure.

 

(4)   For each and every document requested that a person to whom a RFI is directed claims is not in his or her possession, custody or control, such person shall submit a statement in response thereto to the effect that he or she does not have the information requested and, if he or she has such knowledge, identify the person or persons from whom the information may be obtained.   

 

(5)   RFIs may be made orally or in writing.  If the Department issues an oral RFI, the Department shall follow up that request with a written RFI.  Each written RFI shall include, without limitation, the following:

(a)   a description of the information requested and/or documents to which the Department is seeking access;

(b)   a reasonable deadline for providing the information requested or access sought;

(c)   the name, address and telephone number of the Department's employee(s), agent(s), representative(s) or contractor(s) to whom the information requested or access sought shall be provided; and

(d)   notice to the person to whom the RFI is directed of his or her obligations under M.G.L. c. 21E, §§ 2, 4 and 8, and 310 CMR 40.0165(1) through (4).

 

40.0166:   Department Right of Entry

 

      For the purpose of administration and enforcement of M.G.L. c. 21E and 310 CMR 40.0000 and for the protection of human health, safety, public welfare or the environment, employees, agents and contractors of the Department may enter any site, vessel or any other location to be investigated as a possible site at reasonable times and upon reasonable notice to investigate, sample or inspect any documents, conditions, equipment, practice or property.  In the event that the Department reasonably determines as a result of an investigation, sampling or inspection that there has been a release or that there exists a threat of release of oil or hazardous material, the Department may enter a site, vessel or location, and areas proximate thereto, and perform or arrange for the performance of such response actions as it reasonably deems necessary.

 

40.0167:   Interim Deadlines

 

(1)   The Department may establish and enforce reasonable Interim Deadlines consistent with M.G.L. c. 21E and 310 CMR 40.0000 for the performance of response actions, and the furnishing of information and provision of access to documents and other information to DEP, including, but not limited to, deadlines for compliance with Requests for Information, applicable orders, permits and other requirements, and deadlines for the termination of settlement discussions. 

 

(2)   Any person who is required to comply with an Interim Deadline may request, in writing, an extension thereof prior to the running of any such deadline.  Each such request shall state clearly and concisely the facts which are grounds for the extension and the relief sought.  The Department may modify an Interim Deadline if it deems such action appropriate.  Any such modification shall be made in writing.

 

(3)   The Department shall establish Interim Deadlines in writing by means of, but not limited to, the following:

(a)   an approval of an application or work schedule;

(b)   the issuance of a permit, Request for Information, Notice of Responsibility or Notice of Response Action; or

(c)   the issuance of an order pursuant to M.G.L. c. 21E, § 9 or 10.

 

(4)   The Department's decision to establish, modify or refuse to modify one or more Interim Deadlines in accordance with 310 CMR 40.0167 shall not be subject to M.G.L. c. 30A, or any other law, governing adjudicatory proceedings.

 

(5)   If the person required to comply with an Interim Deadline does not make a timely application for an extension thereof in accordance with 310 CMR 40.0167(2), the Interim Deadline shall be presumed to constitute a reasonable Interim Deadline consistent with M.G.L. c. 21E and 310 CMR 40.0000.  Such presumption may be rebutted by a preponderance of the evidence.

 

40.0168:   List of Locations and Disposal Sites

 

(1)   Commencing on or about August 1, 1993, the Department shall publish and maintain a Transition List of Sites and Locations (the "1993 Transition List").  The Department shall identify in the 1993 Transition List, and any addendum thereto, the status of disposal sites and Locations to Be Investigated ("LTBIs") to enable RPs, PRPs and Other Persons to ascertain the actions they are required by 310 CMR 40.0600 (the "Transition Provisions") to undertake to achieve or demonstrate compliance with M.G.L. c. 21E and 310 CMR 40.0000.

 

(2)   Commencing on or about January 1, 1994, the Department shall maintain a list of Locations to be Investigated and disposal sites. 

 

(3)   Commencing on or about January 1, 1994, the Department shall publish  on at least an annual basis a list of disposal sites that have been classified as Tier I in accordance with 310 CMR 40.0500, including addenda thereto.  The published lists may also include, without limitation, the following:

(a)   any disposal site for which the Department has not received:

1.   a Permanent or Temporary Solution Statement; or

2.   a Tier Classification Submittal.

(b)   any disposal site for which the Department has reason to believe that response actions have not been performed in accordance with M.G.L. c. 21E, 310 CMR 40.0000 and/or any other applicable requirement;

(c)   any disposal site classified as Tier I for which the Department has received a Permanent or Temporary Solution Statement in compliance with the applicable deadline; and

(d)   any confirmed disposal site included on any list published by the Department in accordance with 310 CMR 40.520(1), as effective prior to October 1, 1993, or on the 1993 Transition List, unless a No Further Action Letter is received by the Department with respect to such disposal site prior to October 1, 1993.

 

(4)   Any list published in accordance with 310 CMR 40.0168(3) shall not include any of the following:

(a)   any disposal site at which there has been a release of oil and/or hazardous material and for which the Department has received a Permanent or Temporary Solution Statement, except as otherwise provided by 310 CMR 40.0168(3)(b) or (c);

(b)   any disposal site at which an RP, PRP or Other Person, excluding the Department, is performing one or more response actions in compliance with M.G.L. c. 21E, 310 CMR 40.0000 and other applicable requirements, and less than one year has passed since the earliest date computed in accordance with 310 CMR 40.0404(3);

(c)   any disposal site:

1.   that has been classified as a Tier II disposal site in accordance with 310 CMR 40.0500; and

2.   at which an RP, PRP or Other Person, excluding authorized personnel, agents and Contractors of the Department, is performing one or more response actions in compliance with M.G.L. c. 21E, 310 CMR 40.0000 and other applicable requirements;

(d)   any disposal site deemed adequately regulated by another program or government agency pursuant to M.G.L. c. 21E, § 3(c), and 310 CMR 40.0110, except disposal sites subject to CERCLA.

 

(5)   The fact that a location, site, or disposal site has not been placed on the list published pursuant to 310 CMR 40.0168(1) or 40.0168(2), shall not prevent the Department from taking or arranging for response actions at such locations, sites or disposal sites which are consistent with M.G.L. c. 21E, 310 CMR 40.0000 and any other applicable requirement; or from taking any enforcement action pursuant to M.G.L. c. 21E, 310 CMR 40.0000 or any other law which the department has the authority to enforce.

 

(6)   The inclusion of a site on any list published or maintained by the Department in accordance with 310 CMR 40.0168(3) shall be sufficient for purposes of M.G.L. c. 21E, § 10(b)(1)(B)(i).

 

(7)   The Department shall make appropriate notations to its databases and the lists published and maintained in accordance with 310 CMR 40.0168 to reflect the Department's receipt of LSP Evaluation Opinions and Permanent or Temporary Solution Statements for disposal sites and LTBIs identified therein.   

 

(8)   Any person who has reason to believe that the Department has listed a disposal site or LTBI, or the status thereof, in error may request, in writing, that the Department make appropriate changes to the pertinent list.

 

(9)   The Department's listing of any disposal site or LTBI in accordance with 310 CMR 40.0168, shall not be subject to M.G.L. c. 30A, or any other law, governing adjudicatory proceedings.

 

40.0169:   The Role of Licensed Site Professionals

 

(1)   RPs, PRPs and Other Persons shall engage or employ the services of one or more LSPs as necessary to meet the requirements of 310 CMR 40.0000.

 

 

(2)   The Department will designate as an LSP-of-Record for a site any LSP whose signature and seal appears on any document received by the Department with respect to a site.  An LSP whose engagement or employment terminates in connection with a site at which he or she is designated as an LSP-of-Record shall notify the Department in writing within 21 days of  such termination.

 

(3)   LSPs shall render Opinions only in accordance with M.G.L. c. 21A, §§ 19 through 19J, 309 CMR 4.00:  Rules of Professional Conduct and 6.00:  Design and Use of Licensed Site Professional's Seal, M.G.L. c. 21E, 310 CMR 40.0000 and other applicable laws.

 

40.0170:   The Role of RPs, PRPs and Other Persons in Response Actions

 

(1)   RPs, PRPs, and secured lenders and fiduciaries who hold title to or possession of a site or vessel, shall notify the Department of a release or threat of release of oil and/or hazardous material and of any  Imminent Hazards in accordance with 310 CMR 40.0300.

 

(2)   RPs, PRPs and Other Persons shall obtain all necessary permits and approvals before undertaking a response action.

 

(3)   No person shall undertake any response action for which a permit or approval has been issued by the Department in any manner not in conformance with the terms and conditions thereof.

 

(4)   RPs, PRPs and Other Persons shall perform response actions in accordance with the following:

(a)   except as expressly provided by 310 CMR 40.0000, each and every response action shall be properly and promptly performed within deadlines prescribed by, or pursuant to, M.G.L. c. 21E and/or 310 CMR 40.0000, including any Interim Deadlines;

(b)   each RP, PRP or Other Person, or group of RPs, PRPs or Other Persons, who is undertaking or intends to undertake one or more response actions shall participate in and/or conduct, whichever is applicable, Public Involvement Activities in accordance with M.G.L. c. 21E, § 14, 310 CMR 40.1400 and any other applicable requirements; and

(c)   each RP, PRP or Other Person, or group of RPs, PRPs or Other Persons, performing a response action shall identify all permits, licenses or other approvals which may be required by any local, state or federal agency, and any agreements necessary to conduct a response action, and shall proceed to obtain the necessary permits, licenses, approvals, and agreements sufficiently far in advance of deadlines imposed by M.G.L. c. 21E, 310 CMR 40.0000 or any other applicable requirements to enable him or her to complete response actions by such deadlines.

 

(5)   Where necessary to ensure the timely and proper performance and completion or response actions, the Department may require that a RP, PRP or Other Person undertaking response actions provide assurance to the Department that the RP, PRP or Other Person has sufficient financial resources to perform the response action or a specific portion thereof.  The Department may require such persons to provide such financial assurance at any time during the performance of a response action.  Examples of the financial assurance mechanisms which may be required by the Department include, but are not limited to, trust funds, stand-by trust funds, letters of credit, escrow deposits and surety bonds.

 

(6)   In the event that a RP or PRP requests an opportunity to perform a response action at any time after the Department has commenced a response action, the Department may require that the RP or PRP either pay, or provide a financial assurance mechanism for the payment of, all Costs the Department has incurred in connection with the disposal site prior to allowing the RP or PRP to conduct the remainder of the response action.

 

(7)   The Department may refuse to allow a RP, PRP or Other Person to perform a response action, unless the Department is persuaded that:

(a)   the RP, PRP or Other Person will comply with the deadlines and time periods for taking such actions imposed by M.G.L. c. 21E, 310 CMR 40.0000 and/or any order, permit or approval issued by the Department;

(b)   the RP's, PRP's or Other Person's performance of the response action will not result in or cause a hazard, or exacerbate an existing hazard, to health, safety, public welfare or the environment;

(c)   the RP, PRP or Other Person will otherwise conduct the response action in accordance with M.G.L. c. 21E, 310 CMR 40.0000 and other applicable laws; and

(d)   the RP, PRP or Other Person has a satisfactory record of compliance with the statutes, regulations and other requirements administered or enforced by the Department.

 

(8)   The Department may enter into a consent order with a RP, PRP or Other Person which sets forth necessary response actions, time periods and deadlines for the performance thereof and requirements for submittals to the Department.  Each such consent order may include provisions regarding contribution protection, site access, cost recovery, processes for resolving disputes arising under such consent order, and any other matter.

 

(9)   Other Persons undertaking response actions at sites may discontinue such response actions without being deemed by the Department to have acquired liability under M.G.L. c. 21E solely on the basis of having voluntarily conducted such response actions and without being deemed in noncompliance with future deadlines, provided, such persons:

(a)   notify the Department in writing of their intent to discontinue response actions at the site prior to the running of an applicable deadline and surrender or transfer the Tier I Permit they possess, if any, for the site;

(b)   submit a Status Report to the Department informing the Department of the status of the work conducted at the site at the time of providing the notice required by 310 CMR 40.0170(9); and

(c)   do not cause or contribute to the release at the disposal site or cause the release, or the disposal site, to become worse than it otherwise would have been had such response actions not been performed.

      In the event an Other Person is conducting response actions at a disposal site pursuant to a Tier I or Tier II Classification, the Department will stop assessing such Other Person annual compliance assurance fees upon the Department's receipt of the notice and Status Report required by 310 CMR 40.0170(9)(a) and (b); provided, however, that payment of such fees shall be required for the billable year in which such notice and Status Report is received.

 

(10)   No provision of 310 CMR 40.0000 shall be construed to imply that only one person may undertake response actions at a disposal site. 

 

40.0171:   Failure to Perform a Response Action

 

      In the event that a RP, PRP or Other Person initiates a response action that is determined by the Department to be in noncompliance with M.G.L. c. 21E, 310 CMR 40.0000 or any other applicable requirement, or in the event that no person undertakes a necessary response action, the Department may take any or all of the following actions:

 

(1)   proceed to perform or arrange for the performance of the response action;

 

(2)   negotiate a consent order with the RP, PRP or Other Person for the completion of the response action;

 

(3)   issue an order under M.G.L. c. 21E, §§ 9 or 10, to the RP, PRP or Other Person to perform the response action; and

 

(4)   take any other action and seek any other relief authorized by M.G.L. c. 21E, 310 CMR 40.0000 or any other law.

 

40.0172:   Technical, Financial and Legal Inabilities

 

(1)   General Requirements.  Each RP and PRP, and any Other Person when such person is performing response actions under 310 CMR 40.0000, who has reason to believe that one or more necessary response actions are beyond his or her technical, financial or legal ability to perform shall promptly notify the Department in writing upon gaining knowledge of such inability.  Each RP and PRP shall complete those response actions and portions of response actions which are within his or her technical, financial and legal ability to perform.  Each RP and PRP shall make reasonable efforts to pursue civil and administrative procedures available to remedy each such technical, financial or legal inability.

 

(2)   No person may claim that any necessary response action is beyond his or her technical ability to perform unless he or she submits with such notice a Phase III Report prepared in accordance with 310 CMR 40.0850 which indicates that neither feasible Temporary Solutions, nor feasible Permanent Solutions, exist for the disposal site.  

 

(3)   Upon obtaining reason to believe that one or more response actions are beyond his or her financial ability to perform, an RP or PRP shall undertake, to the extent that he or she has sufficient assets available, reasonable steps to:

(a)   implement one or more Temporary Solutions on all or portions of the site that will, at a minimum, prevent the exposure of persons to oil and/or hazardous materials and otherwise reduce the risks of harm posed by the disposal site to health, safety, public welfare and the environment;

(b)   implement one or more Temporary Solutions that will contain the further release or threat of release of oil and/or hazardous material from a structure or container; and

(c)   implement Immediate Response Actions to abate or prevent Imminent Hazards and/or to address a Condition of Substantial Release Migration.

 

(4)   Content of Notice.  The notice required by 310 CMR 40.0172(1) shall include all of the following:

(a)   the name, location and Release Tracking Number(s) assigned by the Department to the site;

(b)   the name, address and telephone number of the RP, PRP or Other Person providing the notice;

(c)   a clear and concise statement of the facts which demonstrate such person's technical, financial or legal inability;

(d)   a plan prepared by an LSP for implementing the measures required by 310 CMR 40.0172(3) to the extent such person has sufficient assets available; and

(e)   a description, including but not limited to an implementation schedule, of the measures such person is taking, or intends to take, to remedy such inability.

 

(5)   Effect of Providing Notice.  If the Department determines that:

(a)   a response action is beyond a RP's or PRP's technical, financial or legal ability to perform; and

(b)   such person has provided the notice required by 310 CMR 40.0172(4) in good faith, such inability shall be a defense to any civil administrative penalty that the Department seeks to assess for noncompliance arising out of such inability with any deadline or time period established pursuant to M.G.L. c. 21E, 310 CMR 40.0000 and/or any order, permit or approval issued thereunder, except a violation of any Notification Requirement, that commences after the date of the Department's receipt of such notice; provided, however, that this defense shall not be available for any violations that occur or continue after such inability ceases.  The RP or PRP claiming any such inability shall have the burden of establishing such inability by a preponderance of the evidence in any such proceeding.

 

(6)   Submittal of the notice required by 310 CMR 40.0172(4) shall not relieve any person from any obligation for the cost of response actions related to the site for which that person is legally responsible or in any way affect any legal or equitable right of the Department to issue any future order with respect to the site that is the subject of the notice or any other claim, action, suit, cause of action or demand which the Department may have with respect to the site, except as provided by 310 CMR 40.0172(5).

 

 

(7)   Effect of Failure to Provide Notice.  M.G.L. c. 21E, § 5(e) provides a defense to an action by the Commonwealth for recovery of two to three times the full amount of the Department's Response Action Costs against a Responsible Party.  A person who fails to provide the notice required by 310 CMR 40.0172, or provides such notice without a good faith basis, may be held liable under M.G.L. c. 21E, § 5(e), for up to three times the full amount of the Department's Response Action Costs incurred with respect to the site at issue, plus litigation costs and attorneys' fees, in an action for recovery of those Costs by the Commonwealth.

 

40.0173:   Site Access Authorization

 

(1)   After making reasonable efforts to obtain reasonable access to any site or other location to be investigated as a possible site not owned by him or her, a RP, PRP or Other Person who is unable to obtain such access may request, in writing, that the Department authorize him or her, or his or her employees, agents, representatives or contractors, to enter such site or location for the purpose of performing one or more necessary response actions.  Each such request for authorization shall include all of the following information:

(a)   the identity of the person making the request and his or her relationship to the site or location;

(b)   the nature and location of the response action(s) that he or she intends to undertake, the anticipated duration of the response action(s) and the reason(s) such access is necessary to perform the response action(s);

(c)   the identity of the person or persons who own or operate the site or location to which the Department's authorization for access is sought;

(d)   the results of any and all attempts to obtain such access; and

(e)   certification that a copy of the request has been sent to each person or persons who own or operate such  sites or locations.

 

(2)   Any person who intends to submit such a request for authorization to the Department shall send a copy thereof to each person who owns and operates the site or location to which access is sought by certified mail, return receipt requested, and a statement informing such person that he or she may file a response thereto with the Department in accordance with 310 CMR 40.0173, prior to submitting the request to the Department.  Each person to whom a copy of the request is sent may submit a response to the request, in writing, to the Department.

 

(3)   The Department may take any of the following actions in response to a request for such authorization:

(a)   the Department may authorize any person, in writing, pursuant to its authority under M.G.L. c. 21E, § 8, to enter any site, vessel or location upon consent of the owner or operator thereof for the purpose of performing one or more response actions in accordance with any terms, conditions or requirements established by the Department;

(b)   the Department may issue to any person a Request for Information;

(c)   the Department may issue an order under M.G.L. c. 21E, §§ 9 or 10, requiring any person to perform one or more response actions;

(d)   the Department may seek and execute an administrative inspection warrant or criminal search warrant in accordance with applicable law;

(e)   the Department may take or arrange the performance of any necessary response action in accordance with M.G.L. c. 21E and 310 CMR 40.0000;

(f)   the Department may issue a Notice of Responsibility to any person who is a PRP; and

(g)   the Department may deny the request or take any other action authorized by M.G.L. c. 21E, 310 CMR 40.0000 or any other law.

 

(4)   In addition to the actions set forth in 310 CMR 40.0173(3), the Department may designate as its authorized representative for the purpose of access one or more RPs, PRPs or Other Persons, including employees, agents and contractors of such parties.  The Department may exercise the authority contained in M.G.L. c. 21E, § 8, to obtain access for its designated representative.  An RP, PRP or Other Person may only be designated as the Department's authorized representative if such person has agreed to serve as the Department's designated representative and to indemnify the Department to the Department's satisfaction for any injuries or damages that occur as a result of the activities undertaken by such person pursuant to such designation. 

 

(5)   The Department's decision in response to a request for Site Access Authorization under 310 CMR 40.0173 shall not be subject to M.G.L. c. 30A, or any other law, governing adjudicatory proceedings.

 

(6)  The authority in 310 CMR 40.0173 is intended to be exercised at the Department's discretion.  No provision in 310 CMR 40.0173 shall be construed to create in any person a right to the Department's authorization for access or to create any duty of the Department to obtain access to any site or other location for any person.

 

40.0180:   Downgradient Property Status

 

      310 CMR 40.0181 through 40.0189, cited collectively as 310 CMR 40.0180, sets forth the requirements and procedures for asserting and maintaining a Downgradient Property Status.

 

40.0181:   Purpose

 

      The purposes for enabling an owner or operator of property which comprises a portion of a disposal site and which is located downgradient of a property which is the source of the release of oil and/or hazardous material located thereon to establish Downgradient Property Status are:

 

(1)   to establish requirements, procedures and deadlines applicable to properties downgradient from a release of oil and/or hazardous material which comprise a portion of a disposal site;

 

(2)   to limit the assessment of annual compliance assurance fees under 310 CMR 4.00 while the activities required by 310 CMR 40.0185 are on-going; and

 

(3)   to facilitate access to properties which comprise a portion of a disposal site by persons undertaking response actions.

 

40.0182:   Applicability

 

      Any person who is liable or potentially liable under M.G.L. c. 21E, § 5(a)(1) or (2) for certain releases of oil and/or hazardous material on Downgradient Property, and who satisfies the requirements and procedures set forth in 310 CMR 40.0183 or 40.0187, may submit to the Department a Downgradient Property Status Submittal in accordance with 310 CMR 40.0183(3), or a Modification of a Downgradient Property Status Submittal in accordance with 310 CMR 40.0187(2).

 

40.0183:   General Requirements and Procedures for Asserting Downgradient Property Status

 

(1)   General.  Any person who meets  the requirements of, and complies with the procedures in, 310 CMR 40.0183 and 40.0185 shall have Downgradient Property Status for purposes of 310 CMR 40.0184, unless and until such Status is terminated in accordance with 310 CMR 40.0186.

 

(2)   Criteria.  Any present or past owner or operator of a downgradient or downstream property where a release of oil and/or hazardous material has come to be located may provide a Downgradient Property Status Submittal to the Department if all of the following are met:

(a)   such person has notified the Department of the release if notification is required by 310 CMR 40.0300;

(b)   the source of the release of oil and/or hazardous material at the downgradient or downstream property is or was located on one or more upgradient or upstream location(s) and oil and/or hazardous material from that location(s) has come to be located at the downgradient or downstream property as a result of migration of the oil and/or hazardous material in or on groundwater or surface water, regardless of whether the upgradient or upstream location(s)  which is the source has been identified as the source of the release(s);

(c)   no act of such person has contributed to the release described in 310 CMR 40.0183(2)(b), or caused such release to become worse than it otherwise would have been;

(d)   such person is not, and was not at any time, affiliated with any other person:

1.   who owned or operated the property from which the release described in 310 CMR 40.0183(2)(b) originated, or caused such release; and

2.   who is potentially liable under M.G.L. c. 21E for the disposal site through any direct or indirect contractual, corporate or financial relationship other than:

a.   that established by any instrument creating such person's interest in the downgradient property; or

b.   that established by an instrument wholly unrelated to the disposal site and which would not otherwise render such person potentially liable as a result of the relationship; and

(e)   to the extent such person has performed response actions at the disposal site, those response actions have been performed in compliance with the requirements and procedures in M.G.L. c. 21E and 310 CMR 40.0000.

 

(3)   Content of Submittal.  A Downgradient Property Status Submittal shall consist of the following:

(a)   a completed transmittal form established by the Department for such purposes;

(b)  a Downgradient Property Status Opinion prepared in accordance with 310 CMR 40.0015 and 310 CMR 40.0183(4);

(c)   the certification required by 310 CMR 40.0009; and

(d)   the fee, if applicable, required by 310 CMR 4.03:  Annual Compliance Assurance Fee.

 

(4)   Performance Standard for a Downgradient Property Status Opinion.  A Downgradient Property Status Opinion shall be based on investigative and assessment actions of sufficient scope and level of effort to conclude that the criteria in 310 CMR 40.0183(2)(b) have been met.  The Opinion shall include an explanation and documentation of the technical basis for the conclusions stated therein, and be based on the following:

(a)   an evaluation of the boundaries of the property which is the subject of the Opinion;

(b)   an evaluation of the disposal site boundaries, to the extent they have been defined by assessments conducted to date;

(c)   an evaluation of the releases of oil and/or hazardous material at the disposal site, to the extent that such releases have been identified;

(d)    an evaluation of the relevant hydrogeologic conditions, including, at a minimum, groundwater flow direction and local transport characteristics based on field data, when migration of oil and/or hazardous material has occurred via groundwater;

(e)   a plan showing the downgradient or downstream property and the disposal site boundaries (to the extent known), the locations of any known or suspected source(s) of oil and/or hazardous material(s) release(s) that have come to be located at the downgradient or downstream property, the direction of groundwater flow and/or surface water flow (as appropriate), the locations where samples were collected for analysis, and the results of the analyses; and

(f)   an evaluation of the need to conduct an Immediate Response Action, as defined in 310 CMR 40.0412.

 

(5)   Notice to Abutters and PRPs.  Prior to, or concurrent with, providing the Downgradient Property Status Submittal to the Department, the person providing such Submittal shall provide a copy of the Downgradient Property Status Opinion to each of the following persons:

(a)   the owners and operators of abutting property upgradient and downgradient from the property which is the subject of the Submittal and, where the abutting upgradient and/or downgradient property is a public way, the owners and operators of the next upgradient and/or downgradient property; and

(b)   the owners and operators of any  property  which is a known or suspected source of the release.  

 

(6)   Public Involvement.  Public Involvement Activities shall be conducted in accordance with 310 CMR 40.1400.  Public Involvement Activities required for Downgradient Property Status  specifically include 310 CMR 40.1403(3)(g).

 

40.0184:   Effect of Providing a Downgradient Property Status Submittal or a Modification of a Downgradient Property Status Submittal

 

(1)   Any person who establishes and maintains Downgradient Property Status in accordance with the requirements and procedures in 310 CMR 40.0180 shall not be subject to the subsequent deadlines for Tier Classification and Comprehensive Response Actions in 310 CMR 40.0500, unless and until such Status is terminated in accordance with 310 CMR 40.0186.

 

(2)   Upon receipt of a Downgradient Property Status Submittal or a Modification of a Down-gradient Property Status Submittal filed in accordance with 310 CMR 40.0183 or 40.0187, respectively, the Department shall suspend the assessment of Tier I or Tier II annual compliance assurance fees, if applicable, on the person making such Submittal; provided, however, that payment of such fees shall be required for the billable year in which the Submittal is provided to the Department, except as provided in 310 CMR 4.03:  Annual Compliance Assurance Fee.

 

(3)   The provision of a Downgradient Property Status Submittal, or a Modification of a Down-gradient Property Status Submittal, to the Department shall not relieve any person from any prospective obligation to provide notification in accordance with 310 CMR 40.0300 or to perform Immediate Response Actions required by 310 CMR 40.0410.  Any person providing a Downgradient Property Status Submittal, or a Modification of a Downgradient Property Status Submittal, to the Department may perform Release Abatement Measures in accordance with 310 CMR 40.0440, Utility-related Abatement Measures in accordance with 310 CMR 40.0460, and/or a Phase I - Initial Site Investigation Activities in accordance with 310 CMR 40.0480. 

 

(4)   The provision of a Downgradient Property Status Submittal, or a Modification of a Down-gradient Property Status Submittal, to the Department shall not relieve any person from any obligation for the cost of response actions related to the disposal site for which that person is legally responsible or in any way affect any legal or equitable right of the Department to issue any future order with respect to the disposal site that is the subject of the Submittal or any other claim, action, suit, cause of action or demand which the Department may have with respect to the disposal site, except as provided by 310 CMR 40.0184(1).

 

(5)   No provision in 310 CMR 40.0180 shall be construed to relieve any person from any obligation to conduct response actions in response to any release of oil and/or hazardous material which does not meet the criteria in 310 CMR 40.0183(2)(b).

 

(6)   The provision of a Downgradient Property Status Submittal, or a Modification of a Down-gradient Property Status Submittal, to the Department pursuant to  310 CMR 40.0183 or 310 CMR 40.0187, respectively, shall not be construed as, or operate as, barring, diminishing, or in any way affecting any legal or equitable right, defense, claim, demand or cause of action that the person providing such Submittal may have under applicable law.

 

40.0185:   Maintenance of Downgradient Property Status

 

(1)   Each person providing a Downgradient Property Status Submittal, or a Modification of a Downgradient Property Status Submittal, to the Department shall meet the following requirements to maintain such Downgradient Property Status:

(a)   no act of such person causes  the release, contributes to  the release,  or causes such release to become worse than it otherwise would be;

(b)   to the extent that such person has ownership or possession of the downgradient property, such person provides reasonable access to the downgradient property which is the subject of the Downgradient Property Status Submittal to employees, agents, and contractors of the Department and to other persons conducting response actions;

(c)   such person undertakes reasonable steps to prevent the exposure of human and environ-mental receptors to oil and/or hazardous material at the downgradient property which is the subject of the Submittal;

(d)   if such person elects to undertake response actions after providing the Submittal to the Department, conducts such response actions in compliance with M.G.L. c. 21E and 310 CMR 40.0000;

(e)   such person makes reasonable efforts to identify persons who may be responsible or potentially responsible for the release and provides the notice required by 310 CMR 40.0183(5) to such persons; and

(f)   such person avoids engaging in any activity which could prevent or impede the implementation of reasonably likely response actions in the future.

 

(2)   Based upon site-specific circumstances, the Department may  require a person who provides a Downgradient Property Status Submittal, or a Modification of a Downgradient Property Status Submittal, to the Department to develop and implement a management plan for the property in order to prevent, eliminate, or minimize danger to health, safety, public welfare and/or the environment.

 

40.0186:   Termination of Downgradient Property Status

 

(1)   Downgradient Property Status  shall terminate if:

(a)    information  indicates that the criteria in 310 CMR 40.0183(2) are no longer being met;

(b)   the person providing the Downgradient Property Status Submittal fails to meet the requirements in 310 CMR 40.0185 for maintaining such Status;

(c)   the person providing the Downgradient Property Status Submittal notifies the Department in writing that such person intends to perform Comprehensive Response Actions in accordance with 310 CMR 40.0800;

(d)   the Department establishes Interim Deadlines in accordance with 310 CMR 40.0167 for the person providing the Downgradient Property Status Submittal; or

(e)   the Downgradient Property Status Submittal or Modification of a Downgradient Property Status Submittal is modified to terminate Downgradient Property Status.

 

(2)  Any person having Downgradient Property Status who gains knowledge of information which indicates that the criteria in 310 CMR 40.0183(2) are no longer being met shall provide written notice thereof to the Department within 60 days of gaining such knowledge.

 

(3)   Any person having Downgradient Property Status may terminate such Status by providing the Department with written notice of his or her intent to terminate such Status.  The termination shall become effective upon the Department's receipt of such notice.

 

40.0187:   Modification of a Downgradient Property Status Submittal

 

(1)  General.  Any present or past owner or operator of a downgradient property with Downgradient Property Status may provide a Modification of a Downgradient Property Status Submittal to the Department if all of the following are met:

(a)   the criteria specified in 310 CMR 40.0183(2);

(b)   if a Modification of a Downgradient Property Status Submittal has not previously been submitted to the Department, the person seeking such Status obtains the written consent thereto of the person who previously submitted the Downgradient Property Status Submittal for the subject property; and

(c)   if a Modification of a Downgradient Property Status Submittal has previously been submitted to the Department, the person seeking such Status obtains the written consent thereto of the person who most recently submitted a Modification of a Downgradient Property Status Submittal for the subject property.

 

(2)   Content of Submittal.  A Modification of a Downgradient Property Status Submittal shall consist of the following:

(a)   a completed transmittal form established by the Department for such purposes;

(b)   the certification required by 310 CMR 40.0009 by the person making such Submittal;

(c)  the written consent required by 310 CMR 40.0187(1)(b) or (c);

(d)   certification by the person whose consent is required by 310 CMR 40.0187(1)(b) or (c) that the Downgradient Property Status has been maintained in accordance with 310 CMR 40.0185;

(e)   certification by the person making such Submittal that he or she meets the criteria in 310 CMR 40.0183(2)(a),(c),(d), and (e); and

(f)   certification by the person making such Submittal that he or she has no information contrary to the conclusion stated in 310 CMR 40.0183(2)(b).

 

(3)   Effect of Providing a Modification of a Downgradient Property Status Submittal.  Any person who submits a Modification of a Downgradient Property Status Submittal to the Department in accordance with 310 CMR 40.0187 shall have Downgradient Property Status in accordance with 310 CMR 40.0184 unless and until such Status is terminated in accordance with 310 CMR 40.0186.

 

(4)   Notice to Abutters and PRPs.  Each person submitting a Modification of a Downgradient Property Status Submittal to the Department shall concurrently provide a copy of such Submittal to the persons described in 310 CMR 40.0183(5).

 

(5)   Public Involvement.   Each person submitting a Modification of a Downgradient Property Status Submittal to the Department shall conduct Public Involvement Activities in accordance with 310 CMR 40.1400.  Public Involvement Activities required for a Modification of a Downgradient Property Status Submittal specifically include 310 CMR 40.1403(3)(g).

 

40.0190:   General Requirements for Conducting Response Actions

 

(1)   For each release or threat of release of oil and/or hazardous materials at a disposal site, one or more Permanent Solutions to the extent feasible shall be implemented by the applicable deadline to achieve a level of No Significant Risk. No disposal site shall be deemed to have had all the necessary and required response actions taken for such site unless and until a level of No Significant Risk exists or has been achieved in compliance with M.G.L. c. 21E and 310 CMR 40.0000.

 

(2)   Permanent Solutions shall be implemented if:

(a)   a level of No Significant Risk does not yet exist at the disposal site;

(b)   Permanent Solutions are feasible; and

(c)   immediate implementation of one or more Permanent Solutions would be more cost-effective than phased implementation of Temporary Solutions and Permanent Solutions.

 

(3)   At each disposal site, unless a level of No Significant Risk already exists or one or more Permanent Solutions is feasible and immediate implementation of such Permanent Solutions would be more cost-effective than phased implementation of Temporary Solutions and Permanent Solutions, one or more Temporary Solutions shall be implemented to the extent feasible by the applicable deadline.  Such solutions shall eliminate any substantial hazard to health, safety, public welfare or the environment which is presented by the disposal site or by any oil and/or hazardous materials at or from the disposal site in the environment.

 

(4)   If appropriate, Permanent Solutions or Temporary Solutions may be implemented on portions of a disposal site.

 

(5)   Where feasible, implementation of a Permanent Solution shall include a measure or measures designed to reduce to the extent possible the level of oil and/or hazardous materials in the environment to background.

 

(6)   In determining whether a Permanent Solution will achieve a level of No Significant Risk during any foreseeable period of time, the criteria and standards set forth in 310 CMR 40.0900 and any current or reasonably foreseeable uses of the site and the surrounding environment that may be affected by oil and/or hazardous materials at the site or in the surrounding environment shall be considered.

 

 

(7)   RPs, PRPs and Other Persons shall employ or engage persons having the appropriate training, and as required, currently valid licenses or certifications to conduct a response action at a disposal site.

 

40.0191:    Response Action Performance Standard (RAPS)

 

(1)   The Response Action Performance Standard (RAPS) is the level of diligence reasonably necessary to obtain the quantity and quality of information adequate to assess a site and evaluate remedial action alternatives, and to design and implement specific remedial actions  at a disposal site to achieve a level of No Significant Risk for any foreseeable period of time and, where feasible, to reduce to the extent possible the level of oil and/or hazardous materials in the environment to background levels.

 

(2)    RAPS shall be employed during the performance of all response actions conducted pursuant to 310 CMR 40.0000, and shall include, without limitation, the following:

(a)   consideration of relevant policies and guidelines issued by the Department and EPA;

(b)   use of accurate and up-to-date methods, standards and practices, equipment and technologies which are appropriate, available and generally accepted by the professional and trade communities conducting response actions in accordance with M.G.L. c. 21E and 310 CMR 40.0000 under similar circumstances; and

(c)   investigative practices which are scientifically defensible, and of a level of precision and accuracy commensurate with the intended use of the results of such investigations.

 

(3)   The application of RAPS shall be protective of health, safety, public welfare and the environment and shall include, without limitation, in the context of meeting the requirements of this Contingency Plan, consideration of the following:

(a)   technologies which reuse, recycle, destroy, detoxify or treat oil and/or hazardous materials, where feasible, to minimize the need for long-term management of contamination at or from a disposal site;

(b)   containment measures as feasible Permanent Solutions only where reuse, recycling, destruction, detoxification and treatment are not feasible;

(c)   remedial actions to reduce the overall mass and volume of oil and/or hazardous material at a disposal site to the extent feasible, regardless of whether it is feasible to achieve one or more Temporary Solutions and/or Permanent Solutions or whether it is feasible to achieve background for the entire disposal site and not include the dilution of contaminated media with uncontaminated media;

(d)   response actions to restore groundwater, where feasible, to the applicable standards of quality within a reasonable period of time to protect the existing and potential uses of such resources; and

(e)   eliminating or reducing, to the extent practicable and consistent with response action requirements and objectives, total  energy use, air pollutant emissions, greenhouse gases, water use, materials consumption, and ecosystem and water resources impacts, resulting from the performance of response actions through energy efficiency, renewable energy use, materials management, waste reduction,  land management, and ecosystem protection.

 

40.0193:   Technical Justification

 

(1)    A Licensed Site Professional may provide technical justification for forgoing any specific activity required by 310 CMR 40.0000, related to Initial Site Investigation Activities performed in accordance with 310 CMR 40.0405(1), Phase I Initial Site Investigation Activities performed in accordance with 310 CMR 40.0480 through 40.0483, Phase II Comprehensive Site Investigation Activities performed in accordance with 310 CMR 40.0830, and Phase III Identification and Evaluation of Response Action Alternatives performed in accordance with 310 CMR 40.0850 through 40.0860, if in his or her professional judgment any particular requirement is unnecessary or inappropriate based upon the conditions and characteristics of a disposal site.  The LSP shall employ  RAPS in determining whether any such activity is unnecessary or inappropriate.

 

(2)   When forgoing any particular activity in accordance with 310 CMR 40.0193(1), the LSP shall identify such activity, and shall set forth the basis for such technical justification, in the pertinent submittal.