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40.0500:   Tier Classification and Response Action Deadlines

 

      The regulations published at 310 CMR 40.0500 through 40.0599, cited collectively as 310 CMR 40.0500, establish requirements and procedures for Tier Classification, and deadlines for completing response actions at disposal sites.  Tier Classification results are considered by the Department in determining the appropriate level of Departmental oversight for response actions conducted by RPs, PRPs and Other Persons at disposal sites.

 

40.0501:   Scope and Applicability

 

(1)   310 CMR 40.0500 establishes requirements and procedures for the performance of response actions at Tier I and Tier II disposal sites, including, but not limited to, requirements for re-evaluating such disposal sites and requirements for submittals.  For Tier Classified disposal sites, the specific deadlines for RPs, PRPs and Other Persons to achieve a  Permanent or Temporary Solution pursuant to 310 CMR 40.1000 are determined in accordance with 310 CMR 40.0560.

 

(2)   Except as provided in 310 CMR 40.0501(3), all sites for which the Department receives notification of a release or threat of release of oil and/or hazardous material pursuant to 310 CMR 40.0300 on or after October 1, 1993, or has discovered or discovers that a release or threat  of release of oil and/or hazardous material  has occurred, shall be classified by RPs, PRPs or Other Persons as either a Tier I or Tier II disposal site in accordance with 310 CMR 40.0500.  An RP, PRP or Other Person shall submit a Tier Classification Submittal to the Department by the following deadlines:

(a)   within one year of the earliest date computed in accordance with 310 CMR 40.0404(3); or

(b)   as otherwise specified by the Department in  an Interim Deadline pursuant to 310 CMR 40.0167 or order pertaining to such release or threat of release.  In the event that multiple deadlines for Tier Classification would be established by 310 CMR 40.0501(2) with respect to any specific disposal site, the earliest of the applicable deadlines shall apply for the purposes of Tier Classification. 

 

(3)   Notwithstanding any provision of 310 CMR 40.0501(2) to the contrary, an RP, PRP or Other Person conducting response actions at a disposal site shall not be required to submit a Tier Classification Submittal if such RP, PRP or Other Person submits either a Permanent Solution Statement pursuant to 310 CMR 40.1000 or a Downgradient Property Status Submittal pursuant to 310 CMR 40.0180 to the Department within one year of the earliest date computed in accordance with 310 CMR 40.0404(3).

 

(4)   Except as provided at 310 CMR 40.0062(1)(j) for Special Project Designations, an individual Tier Classification Submittal may be for a single discrete disposal site located on one or more parcels of land or to address multiple discrete disposal sites located on a single parcel of land.

 

(5)   An RP, PRP or Other Person may undertake Phase II and Phase III Comprehensive Response Actions pursuant to 310 CMR 40.0800 prior to Tier Classification without the Department's prior approval, unless otherwise specified in writing by the Department.

 

40.0502:   Tier ID Disposal Sites

 

(1)   A disposal site shall be deemed a Tier ID ("default") disposal site if any of the following apply:

(a)   an RP, PRP or Other Person for such disposal site fails to submit to the Department one of the following by the applicable deadline in 310 CMR 40.0501:

1.   a Permanent Solution Statement; or

2.   a Tier Classification Submittal; or

(b)   the person undertaking response actions is in noncompliance with M.G.L. c. 21E, 310 CMR 40.0000 or any other applicable requirement, and the Department reclassifies the disposal site as a Tier ID disposal site pursuant to 310 CMR 40.0583.

 

(2)   An RP, PRP or Other Person shall not conduct Comprehensive Response Actions pursuant to 310 CMR 40.0800 at a Tier ID disposal site. 

 

(3)   An RP, PRP or Other Person for any disposal site that was not previously classified and is deemed a Tier ID disposal site pursuant to 310 CMR 40.0502(1) shall Tier Classify such disposal site pursuant to the requirements at 310 CMR 40.0510.

 

(4)   Any disposal site deemed a Tier ID disposal site pursuant to 310 CMR 40.0502(1)(b) shall be reclassified as follows:

(a)   if the disposal site was previously classified pursuant to 310 CMR 40.0510, then the previous classification shall be effective when the Department determines that the RP, PRP, or Other Person has addressed the non-compliance, provided such classification has not expired;

(b)   if the disposal site was not previously classified pursuant to 310 CMR 40.0510, then the RP, PRP, or Other Person shall classify the disposal site pursuant to 310 CMR 40.0510.

 

40.0510:   Tier Classification Process

 

(1)   The Tier Classification process consists of:

(a)   the completion of a Phase I - Initial Site Investigation Report in accordance with 310 CMR 40.0480;

(b)   a comparison of conditions at a disposal site with the Tier I Criteria set forth in 310 CMR 40.0520(2);

(c)   the preparation and filing with the Department of a Tier Classification Submittal in accordance with 310 CMR 40.0510(2); and

(d)   the public involvement activities relevant to Tier Classification, including, but not limited to, those activities set forth in 310 CMR 40.1403(3) and (6).  Response actions may be initiated or continued at the disposal site during the comment period described in 310 CMR 40.1403(6)(a), unless otherwise prohibited by the Department.

 

 

(2)   A Tier I or Tier II Classification Submittal shall consist of the following:

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

(b)   an LSP Tier Classification Opinion pursuant to 310 CMR 40.0510(4);

(c)   the certification required by 310 CMR 40.0009;

(d)   the certification required by 310 CMR 40.0540(1);

(e)   the compliance history required by 310 CMR 40.0540(2); and

(f)   a conceptual Phase II Scope of Work that, at a minimum, includes:

1.   a general plan for assessing contaminants of concern, potential receptors and potential exposure pathways, identifying the likely technical approach(es) to be used; and

2.   a projected schedule that includes interim milestones.

 

(3)   Tier Classification Public and Written Notice Requirements.

(a)   The following actions must be taken to provide notice to the public and local officials of the Tier Classification:

1.   within seven days of filing a Tier Classification Submittal, publish a public notice pursuant to 310 CMR 40.1403(2)(b) as specified at 310 CMR 40.1403(6)(a);

2.   at least three days prior to publication of the public notice, provide a written notice pursuant to 310 CMR 40.1403(2)(a) 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 as specified at 310 CMR 40.1403(6)(b); and

3.   in the case of a Tier I Classification for a disposal site where there is evidence of groundwater contamination with oil and/or hazardous material at concentrations equal to or exceeding the applicable RCGW-1 Reportable Concentration set forth in 310 CMR 40.0360, and such groundwater is located within an Interim Wellhead Protection Area, Zone II, or Zone A of a Class A surface drinking water source, provide the owner(s) of the Public Water Supply with a written notice pursuant to 310 CMR 40.1403(2)(a) at least three days prior to publication of the public notice, that includes:

a.   a copy of the public notice; and

b.   a copy of the disposal site map included in the Phase I Report pursuant to 310 CMR 40.0483(1)(b).

(b)   Publication of the public notice shall be documented to the Department as specified at 310 CMR 40.1403(2)(c)2.

(c)   A copy of each written notice sent to local officials and, where applicable, Public Water Supply owner(s), pursuant to 310 CMR 40.0510(3)(a)2. and 3. respectively, shall be concurrently submitted to the Department as specified at 310 CMR 40.1403(2)(c)1.

 

(4)   An LSP Tier Classification Opinion shall consist of:

(a)   a completed Phase I Report, as described in 310 CMR 40.0480;

(b)   on the basis of the Tier I Criteria, an LSP Opinion as to whether a disposal site should be classified as Tier I or Tier II; and

(c)   any other information required by 310 CMR 40.0520 or 40.0530, including, but not limited to, any other Phase Reports, Status Reports and Completion Statements material to the LSP Tier Classification Opinion.

 

(5)   Unless otherwise specified by the Department, the Tier Classification effective date shall be the date a complete Tier Classification Submittal is received by the Department.   Such Tier Classification (either Tier I or Tier II) shall apply unless and until the RP, PRP or Other Person submits a subsequent Tier Classification to the Department pursuant to 310 CMR 40.0530 that reclassifies the disposal site or the Department reclassifies the disposal site pursuant to 310 CMR 40.0583.

 

(6)   Reclassification of a disposal site does not change the effective date of the Tier Classification.

 

40.0520:   Basis for Tier Classification

 

(1)   Disposal Site Information.

(a)   Any person performing Tier Classification for a disposal site shall evaluate such disposal site using the Tier Classification Criteria described in 310 CMR 40.0520(2). The evaluation shall be based upon data, facts and other information obtained during Phase I, and any other relevant data, facts or information known by the person performing Tier Classification, including, but not limited to, any data, facts or information obtained during a Phase II - Comprehensive Site  Assessment, if Phase II work has been performed at such disposal site.

(b)   All relevant data, facts and other information considered during Tier Classification shall be documented in the applicable Phase Report(s) and the LSP Tier Classification Opinion.  LSPs shall use the  Response Action Performance Standard in 310 CMR 40.0191 to develop an LSP Tier Classification Opinion.

(c)   Any person performing Tier Classification may account for risk reduction measures, if any, that have been completed at the disposal site pursuant to 310 CMR 40.0400 prior to performing such Tier Classification, including Immediate Response Actions, Release Abatement Measures and Utility-related Abatement Measures.

 

(2)   Tier I Criteria.  Any disposal site which meets the following criteria at the time of Tier Classification shall be classified as Tier I:

(a)   there is evidence of groundwater contamination with oil and/or hazardous material at concentrations equal to or exceeding the applicable RCGW-1 Reportable Concentration set forth in 310 CMR 40.0360, and such groundwater is located within an Interim Wellhead Protection Area, Zone II, or within 500 feet of a Private Water Supply Well;

(b)   an Imminent Hazard is present;

(c)   one or more remedial actions are required as part of an Immediate Response Action pursuant to 310 CMR 40.0414(2); or

(d)   one or more response actions are required as part of an Immediate Response Action to eliminate or mitigate a Critical Exposure Pathway pursuant to 310 CMR 40.0414(3). 

 

(3)   Any disposal site that meets one or more of the Tier I Criteria set forth in 310 CMR 40.0520(2) and is classified as Tier I may be reclassified as Tier II pursuant to 310 CMR 40.0530 once the Tier I Criteria no longer apply at the disposal site.

 

(4)   Tier II Classification.  Any disposal site that is not Tier ID pursuant to 310 CMR 40.0502 or 40.0520(5) and does not meet the Tier I Criteria described at 310 CMR 40.0520(2) shall be classified as Tier II.

 

(5)   Transition Provisions.  Effective June 20, 2014:

(a)   previously tier classified disposal sites shall have the following tier classification:

1.   disposal sites with a classification of Tier IA, Tier IB, or Tier IC shall be classified as Tier I;

2.   disposal sites with a classification of Tier II shall be classified as Tier II; and

3.   disposal sites with a classification of Tier ID shall be classified as Tier ID; and

(b)   any prior conditions of approval related to the schedule and/or manner for conducting response actions at the disposal site shall remain in effect.

 

40.0530:   Reclassification by RPs, PRPs, or Other Persons During Response Actions

 

(1)   Except as provided at 310 CMR 40.0530(5), an RP, PRP or Other Person performing response actions at a disposal site following Tier Classification shall re-evaluate such disposal site using the Tier I Criteria specified in 310 CMR 40.0520(2) if he or she obtains new or additional data, facts or other information which result in a finding that would cause reclassification of the disposal site from Tier II to Tier I.

 

(2)   An RP, PRP or Other Person performing response actions at a Tier II disposal site who obtains knowledge that the disposal site meets the Tier I Criteria shall submit to the Department a Tier Classification Submittal within 60 days of obtaining such knowledge. 

 

(3)   An RP, PRP or Other Person may downgrade a Tier I disposal site classification if upon re-evaluation of the disposal site pursuant to the Tier I Criteria at 310 CMR 40.0520(2)  the disposal site is determined to no longer meet one or more of the Tier I Criteria. In such case,  an RP, PRP or Other Person for a Tier I disposal site shall submit a revised Tier Classification Submittal to document the reclassification from Tier I to Tier II that includes the information specified at 310 CMR 40.0510(2)(a) through (c).

 

(4)   Except as otherwise specified by the Department, reclassification of a disposal site by an RP, PRP or Other Person who has been performing and is continuing to perform response actions at such disposal site shall not change the  response action deadlines based upon the initial Tier Classification effective date of such disposal site, as detailed in 310 CMR 40.0560(1) and (2).

 

(5)   Reclassification pursuant to 310 CMR 40.0530 shall not be required for disposal sites classified as Tier II prior to June 20, 2014 for conditions that meet the Tier I Criteria specified in 310 CMR 40.0520(2)(c) and (d) where the RP, PRP, or Other Person had knowledge of and was conducting response actions to address such conditions prior to June 20, 2014.

 

40.0540:   Demonstration of Ability and Willingness

 

(1)   Each person filing a Tier Classification Submittal with the Department shall include the certification required by 310 CMR 40.0009 and the following written declaration:

"I attest under the pains and penalties of perjury that (i) I/the person(s) or entity(ies) on whose behalf this submittal is made has/have personally examined and am/is familiar with the requirements of M.G.L. c. 21E and 310 CMR 40.0000; (ii) based upon my inquiry of the/those Licensed Site Professional(s) employed or engaged to render Professional Services  for the disposal site which is the subject of this Transmittal Form and of the person(s) or entity(ies) on whose behalf this submittal is made, and my/that person's(s') or entity's(ies') understanding as to the estimated costs of necessary response actions, that/those person(s) or entity(ies) has/have the technical, financial and legal ability to proceed with response actions for such site in accordance with M.G.L. c. 21E, 310 CMR 40.0000 and other applicable requirements; and (iii) that I am fully authorized to make this attestation on behalf of the person(s) or entity(ies) legally responsible for this submittal.  I/the person(s) or entity(ies) on whose behalf this submittal is made is aware of the requirements in 310 CMR 40.0172 for notifying the Department in the event that I/the person(s) or entity(ies) on whose behalf this submittal is made am/is(are) unable to proceed with the necessary response actions."

 

(2)   Each person filing a Tier Classification Submittal with the Department shall include therein a statement detailing such person's history of compliance with the Department's regulations, including, but not limited to, M.G.L. c. 21E, 310 CMR 40.0000, and other laws for the protection of health, safety, public welfare and the environment administered or enforced by the Department or other federal, state and local government agencies, that are relevant to conditions at the disposal site.

 

40.0560:   Response Action Deadlines and Requirements for Tier Classified Disposal Sites

 

(1)   Deadlines for Achieving a Permanent Solution, Temporary Solution or Remedy Operation Status.  Except as expressly provided by 310 CMR 40.0000 or as otherwise ordered or agreed to in writing by the Department, an RP, PRP or Other Person undertaking response actions at a disposal site shall achieve a Permanent Solution,  Temporary Solution, or Remedy Operation Status within five years of the effective date of initial Tier Classification. The eventual achievement of a Permanent Solution is required at all disposal sites where a Temporary Solution or Remedy Operation Status is achieved.

(a)   The Tier Classification for a disposal site pursuant to 310 CMR 40.0510 shall expire five years from the effective date of the initial Tier Classification of such disposal site; and

(b)   An RP, PRP or Other Person shall not conduct Comprehensive Response Actions pursuant to 310 CMR 40.0800 at a disposal site for which a Tier Classification has expired unless a Tier Classification Extension is obtained pursuant to 310 CMR 40.0560(7).

 

(2)   Deadlines for Submittals.  Except as provided by 310 CMR 40.0530(4), 40.0560(3), or 40.0000 or as otherwise ordered or agreed to in writing by the Department, an RP, PRP or Other Person undertaking response actions at a Tier Classified disposal site shall submit the following documents to the Department by the following deadlines:

(a)   a conceptual scope of work for a Phase II - Comprehensive Site Assessment pursuant to 310 CMR 40.0834 prior to the implementation of Phase II field work, updated as necessary to reflect material modifications from the conceptual scope of work submitted pursuant to 310 CMR 40.0510(2)(f) at the time of initial Tier Classification, unless the Phase II field work had been implemented prior to Tier Classification;

(b)   a Phase II Report  within three years of the effective date of Tier Classification;

(c)    if applicable, a Phase III Remedial Action Plan within four years of the effective date of Tier Classification;

(d)   if applicable, a Phase IV Remedy Implementation Plan within four years of the effective date of Tier Classification; and

(e)   a Permanent Solution Statement, or Temporary Solution Statement pursuant to 310 CMR 40.1000, or a Remedy Operation Status Submittal pursuant to 310 CMR 40.0893, within five years of the effective date of Tier Classification.

 

(3)   Notwithstanding any provision of 310 CMR 40.0560(2) to the contrary, submittal to the Department of those documents described in 310 CMR 40.0560(2)(a) through (d) shall not be required at any disposal site for which a Permanent Solution Statement is submitted to the Department prior to an applicable document submittal deadline.

 

(4)   Approvals.

(a)   Except as provided in 310 CMR 40.0560(4)(b), an RP, PRP or Other Person undertaking response actions at a disposal site classified as Tier I or Tier II pursuant to 310 CMR 40.0510 may perform the response actions which are the subject of the submittals required by 310 CMR 40.0560(2) without the Department's prior approval thereof.

(b)   Notwithstanding 310 CMR 40.0560(4)(a), the Department may at any time require an RP, PRP or Other Person undertaking response actions at a Tier Classified disposal site to obtain prior Departmental approval of one or more of the submittals specified by 310 CMR 40.0560(2) or the response actions or submittals required pursuant to 310 CMR 40.0800.  The Department may require such prior approval for submittals or response actions as they relate to the entire  disposal site or to some portion thereof.

(c)   No person shall perform Phase IV response actions at a disposal site classified as Tier I or Tier II pursuant to 310 CMR 40.0510 unless and until 20 days have passed from the date of publication of the notice required by 310 CMR 40.0510(3).

(d)   No person shall perform Comprehensive Response Actions at Tier ID disposal sites unless and until the disposal site is classified as Tier I or Tier II pursuant to 310 CMR 40.0510.

 

(5)   Notification of Delay in Compliance with Deadlines for Tier Classified Disposal Sites.  Except as provided by 310 CMR 40.0025 or 40.0167, if any delay in compliance with any deadline or time period required by 310 CMR 40.0560(2) occurs after a disposal site is Tier Classified, the RP, PRP or Other Person  performing  response action shall notify the Department in writing using a transmittal form provided by the Department for such purposes prior to missing any such deadline or time period, and shall take appropriate measures to minimize such delay in compliance with any deadline or time period.  Such notification of delay:

 

 

(a)   shall state the reason for such delay, the measure or measures to be taken to minimize the delay and a proposed schedule for implementing those measures;

(b)   does not forgive an RP's, PRP's or Other Person's noncompliance with deadlines for response actions in 310 CMR 40.0000.

 

(6)   Notification of Initial Field Activities.  RPs, PRPs or Other Persons conducting response actions at Tier Classified disposal sites shall notify the Department at least seven days prior to the commencement of initial field activities related to the implementation of Comprehensive Response Actions. Upon such notification, the Department may impose conditions on and/or arrange to observe the conduct of field work including, but not limited to, the installation of monitoring wells, the excavation of test pits, field sampling of environmental media, soil removal, installation of groundwater recovery systems, the start of Phase IV construction activities, and observation of Phase V monitoring activities.

 

(7)   Tier Classification Extensions

(a)   If a  Permanent Solution Statement, Temporary Solution Statement  or Remedy Operation Status Submittal has not been submitted to the Department for a Tier Classified disposal site prior to the expiration of the Tier Classification, the person undertaking response actions at such site shall extend the Tier Classification by submitting a Tier Classification Extension Submittal to the Department.

(b)   The Tier Classification Extension Submittal shall be provided to the Department at least 45 days before the date of expiration of the Tier Classification.

(c)   The Tier Classification Extension Submittal shall consist of the following:

1.   a completed transmittal form using a form provided by the Department for such purposes, which shall include a statement explaining why a Permanent Solution,  Temporary Solution, or Remedy Operation Status has not been achieved at the site.

2.   a description of the status of response actions, including a plan and a proposed schedule for implementing such plan, which details the steps that will be taken in order to achieve, at a minimum, a Temporary Solution at the disposal site pursuant to 310 CMR 40.1000 within one year of the effective date of the Tier Classification Extension, and a schedule for achieving a Permanent Solution, if feasible;

3.   the certification required by 310 CMR 40.0009;

4.   the certification required by 310 CMR 40.0540(1);

5.   an updated compliance history required by 310 CMR 40.0540(2) since the effective date of the Tier Classification; and

6.   an LSP Opinion indicating that the plans and/or reports submitted are in conformance with the requirements of 310 CMR 40.0000.

(d)   Where a complete Tier Classification Extension Submittal is submitted to  the Department at least 45 days before the date of expiration of the Tier Classification, the Tier Classification Extension shall take effect on the expiration date of the previous Tier Classification  unless the Department issues a written denial for such Extension prior to the expiration date of the previous Tier Classification.  Unless otherwise specified by the Department, the Extension shall be effective for a period of two years beyond the effective date of the Tier Classification.  An RP, PRP or Other Person shall notify the Department pursuant to 310 CMR 40.0560(7) if additional extensions are required thereafter; and

(e)   The Department reserves the right to reconsider the need for Departmental oversight or to initiate enforcement actions related to any Tier Classification Extension Submittal  or when any timeline for achieving a Permanent Solution,  Temporary Solution, or Remedy Operation Status pursuant to 310 CMR 40.0560 is exceeded; and

(f)   A Tier Classification Extension obtained under 310 CMR 40.0560(7) does not forgive an RP's, PRP's or Other Person's noncompliance with any provisions of 310 CMR 40.0000, including but not limited to, noncompliance that resulted from the late submittal or failure to submit an IRA Plan, Status Report, Phase I Report, Tier Classification, Phase II Report, Phase III Remedial Action Plan, Phase IV Remedy Implementation Plan, and/or failure to achieve a Permanent Solution,  Temporary Solution, or Remedy Operation Status.  A Tier Classification Extension means the RP, PRP or Other Person has approval to continue with response actions in compliance with all applicable provisions of 310 CMR 40.0000.  Such Extension shall not be construed as approval by the Department of the scope or adequacy of plans or of the response actions as actually conducted. 

 

(8)   Changes in Persons Undertaking Response Actions at Tier Classified Disposal Sites.

(a)   No person other than a person who has filed a Tier Classification Submittal for a disposal site with the Department may perform Comprehensive Response Actions at such disposal site, unless that person submits a Tier Classification Transfer Submittal to the Department.

(b)   A Tier Classification Transfer Submittal shall consist of the following:

1.   a completed transmittal form using a form provided by the Department for such purposes, which shall include a statement and/or report explaining the reasons for the change in persons undertaking response actions and a proposed effective date for such change;

2.   a listing of all Status and Phase Reports for response actions completed since the effective date of the Tier Classification;

3.   the certification required by 310 CMR 40.0009 by the current RP, PRP or Other Person for such disposal site and by the transferee;

4.   the certification required by 310 CMR 40.0540(1) by the transferee;

5.   the compliance history required by 310 CMR 40.0540(2) for the transferee; and

6.   an LSP Opinion indicating that the plans and/or reports submitted are in conformance with the requirements of 310 CMR 40.0000.

(c)   A change in persons conducting response actions at a Tier Classified disposal site shall take  effect 30 days after submission of a complete Tier Classification Transfer Submittal to the Department unless the Department issues a written denial of such transfer prior to the termination of such 30 day time period.

(d)   The Department reserves the right to reconsider the need for Departmental oversight or to initiate enforcement actions related to any Tier Classification Transfer Submittal or when any timeline for achieving a Permanent or Temporary Solution pursuant to 310 CMR 40.0560 at a Tier Classified disposal site is not met.

 

40.0570:   Requirements for Eligible Persons, Eligible Tenants or Other Persons Seeking to Re-establish Response Action Deadlines

 

(1)   Notwithstanding 310 CMR 40.0560, Eligible Persons, Eligible Tenants or Other Persons who are required or intend to conduct response actions at a Tier Classified disposal site and who have not previously submitted a Tier Classification Submittal for the disposal site may seek to re-establish the deadlines for response actions by submitting a Tier Classification Submittal; provided, however, that for the purpose of re-establishing deadlines pursuant to 310 CMR 40.0570:

(a)   Eligible Persons who became an owner or operator of a site or portion thereof prior to December 14, 2007 shall make such submittal within 120 days of December 14, 2007, unless the Department agrees to a later date;

(b)   Eligible Persons who become an owner or operator of a site or portion thereof after December 14, 2007  shall make such submittal within 120 days of becoming such an owner or operator, unless the Department agrees to a later date;

(c)   Eligible Tenants who acquire occupancy, possession or control of a site or portion thereof prior to December 14, 2007 shall make such submittal within 120 days of December 14, 2007, unless the Department agrees to a later date;

(d)   Eligible Tenants who acquire occupancy, possession or control of a site or portion thereof after December 14, 2007 shall make such submittal within 120 days of acquiring such occupancy, possession or control, unless the Department agrees to a later date;

(e)    Persons who became Other Persons prior to December 14, 2007  shall make such submittal within 120 days of December 14, 2007, unless the Department agrees to a later date; and

(f)   Persons who became Other Persons after December 14, 2007 shall make such submittal within 120 days of becoming an Other Person, unless the Department agrees to a later date.

 

(2)   Unless otherwise specified by the Department in writing, deadlines re-established pursuant to 310 CMR 40.0570 shall be calculated from the effective date of the Tier Classification submitted to the Department pursuant to 310 CMR 40.0570(1). 

 

(3)   An Eligible Person, Eligible Tenant, or Other Person seeking to re-establish response action deadlines pursuant to 310 CMR 40.0570 must provide with the Tier I Permit Application or Tier II Classification Submittal a written certification pursuant to 310 CMR 40.0009 stating that:

(a)   such person, in the case of a person asserting to be an Eligible Person, is an owner or operator of the disposal site or a portion thereof who would be liable under M.G.L. c. 21E, § 5(a)(1) solely, did not cause or contribute to the release, and did not own or operate the site at the time of the release;

(b)   such person, in the case of a person asserting to be an Eligible Tenant, is a person who acquired occupancy, possession or control of the disposal site, or a portion thereof, after the release of oil or hazardous material has been reported to the department, did not cause or contribute to the release, and would not otherwise be liable pursuant to M.G.L. c. 21E, § 5(a)(2) through (5);

(c)   such person, in the case of a person asserting to be an Other Person, is not an RP or PRP, with specific facts sufficient to support this statement;

(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 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 property within the disposal site boundaries; 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)   such person, if a trust, consists of trustees, members and/or beneficiaries, all of whom satisfy 310 CMR 40.0570(3)(a) through (d).

      Nothing in 310 CMR 40.0570 shall preclude the Department from considering any other information relative to whether such person is an Eligible Person, Eligible Tenant or Other Person.

 

(4)   Any person seeking to re-establish response action deadlines pursuant to 310 CMR 40.0570 may elect to rely upon a Phase I Report, conceptual Phase II Scope of Work, and Tier Classification contained in a Tier Classification Submittal previously provided to the Department, provided that the new Tier Classification Submittal includes an LSP Opinion stating that such Application or Submittal relies on such previously provided information.

 

(5)   Provided that 310 CMR 40.0570(1) through (4) are satisfied, and unless at any time following the Department’s receipt of a Tier I Permit Application or Tier II Classification Submittal pursuant to this section the Department establishes an Interim Deadline(s) as described in 310 CMR 40.0167 for conducting response actions, the response action submittal deadlines for Eligible Persons, Eligible Tenants or Other Persons undertaking response actions pursuant to 310 CMR 40.0570 shall be re-established as follows:

(a)   a scope of work for a Phase II - Comprehensive Site Assessment pursuant to 310 CMR 40.0834 prior to the implementation of Phase II field work, unless the Phase II field work had been implemented prior to Tier Classification;

(b)   a Phase II Report within three years of the effective date of the Tier Classification;

(c)   if applicable, a Phase III Remedial Action Plan and a Phase IV Remedy Implementation Plan within four years of the effective date of Tier  Classification; and

(d)   a Permanent or Temporary Solution Statement pursuant to 310 CMR 40.1000, or a Remedy Operation Status Submittal pursuant to 310 CMR 40.0893, within five years of the effective date of Tier Classification.

 

(6)   If the person filing the certification pursuant to 310 CMR 40.0570(3) is subsequently determined not to be an Eligible Person, Eligible Tenant or Other Person, or if such certification is determined at any time to be inaccurate or untrue, the original response action deadlines for the site shall supersede the deadlines established pursuant to 310 CMR 40.0570.

 

(7)   In establishing Interim Deadlines for response actions pursuant to 310 CMR 40.0570 and 310 CMR 40.0167, the Department may consider, without limitation, the complexity of the disposal site and the extent to which response actions have already been completed for the disposal site. 

 

(8)   Nothing in 310 CMR 40.0570 shall limit a person's ability to seek a transfer of a Tier Classification; provided, however, that any response action deadline re-established pursuant to 310 CMR 40.0570 shall apply only to the Eligible Person, Eligible Tenant or Other Person making the submittals set forth in 310 CMR 40.0570, or to any subsequent Eligible Person, Eligible Tenant or Other Person to whom the Tier Classification is transferred who also files the certification described in 310 CMR 40.0570(3) within the applicable deadline specified in 310 CMR 40.0570(1).

 

40.0583:   Department Reclassification of a Tier Classified Disposal Site

 

(1)   General.  The Department may, on its own initiative, reclassify a Tier I, Tier ID  or Tier II disposal site to a different Tier Classification pursuant to 310 CMR 40.0583.

 

(2)   Effect of Reclassification.  A Reclassification made in accordance with 310 CMR 40.0583 shall have the effect of superseding the existing site classification.

 

(3)   Criteria.  The Department shall consider the Tier Classification Criteria at 310 CMR 40.0520 when reclassifying a Tier Classified disposal site.

 

40.0584:   Participation by the Public, RPs, PRPs, and Other Persons in Department Reclassification

 

(1)   Within seven days of reclassifying a Tier Classified disposal site pursuant to 310 CMR 40.0583, the Department shall provide notice to the public of the Reclassification as follows:

(a)   by publishing a public notice pursuant to 310 CMR 40.1403(2)(b);

(b)   by mail or hand delivery of a copy of the public notice to the Chief Municipal Officer and Board of Health in the community(ies) in which the disposal site is located and in any other community(ies) which the Department believes are likely to be affected by the disposal site;

(c)   by mail or hand delivery of a copy of the public notice to any person the Department reasonably believes:

1.   is an RP or a PRP for the disposal site;

2.   is an Other Person conducting response actions for the disposal site;

3.   holds title to, or an ownership interest in any real property comprising the disposal site of portion thereof or which may be affected by the disposal site and whose name and address is known to the Department at the time the Department decides to re-classify the disposal site; and

4.   is the operator of the disposal site, if different from the owner;

(d)   if the disposal site is a Public Involvement Plan (PIP) site, by mail to each person whose name and address appears on the PIP mailing list established pursuant to 310 CMR 40.1400; 

(2)   Content of Notice.  The notice required by 310 CMR 40.0584(1) shall include, but not be limited to, the following information:

(a)   the name and address of the disposal site;

(b)   the DEP Release Tracking Number(s);

(c)   the intended Reclassification category of the disposal site; and

(d)   a statement of the basis for the Reclassification.

 

40.0585:   Right to Request an Adjudicatory Hearing

 

(1)   Any person who is aggrieved by a decision of the Department to reclassify a disposal site pursuant to 310 CMR 40.0583 to a Tier Classification category that is higher than the previous classification may request an adjudicatory hearing before the Department in accordance with 310 CMR 40.0050.

(2)   A request for adjudicatory hearing pursuant to 310 CMR 40.0585 shall:

(a)   comply with 310 CMR 40.0050 and 1.00:  Adjudicatory Proceedings; and

(b)   state the reason(s) the decision to reclassify does not comply with 310 CMR 40.0000.

(3)   The adjudicatory hearing shall be limited to the issue of whether the Department’s decision to reclassify is in accordance with the criteria set forth in 310 CMR 40.0583(3).

 

40.0590:   Public Involvement

      Public involvement activities shall be conducted in accordance with 310 CMR 40.1400 through 40.1406. Public involvement requirements relevant to Tier Classification include, but are not limited to, those activities set forth at 310 CMR 40.1403(6).