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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 the rendering of LSP Tier Classification Opinions, and deadlines for completing response actions at disposal sites.  LSP Tier Classification Opinions 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 disposal sites, including, but not limited to, requirements for re-scoring such disposal sites and submittal requirements.  For Tier I disposal sites, the specific deadlines for RPs, PRPs and Other Persons to achieve a Response Action Outcome pursuant to 310 CMR 40.1000 are determined in accordance with 310 CMR 40.0550 and any other applicable deadlines established in a Tier I Permit issued pursuant to 310 CMR 40.0700.

(2)   310 CMR 40.0500 also establishes requirements and procedures for the performance of response actions at Tier II disposal sites, including, but not limited to, requirements for re-scoring such disposal sites and submittal requirements.  For Tier II disposal sites, the specific deadlines for RPs, PRPs and Other Persons to achieve a Response Action Outcome are determined in accordance with 310 CMR 40.0560.

(3)   Except as provided in 310 CMR 40.0501(4), 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 and, if applicable, a Tier I Permit application 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(3) with respect to any specific disposal site, the earliest of the applicable deadlines shall apply for the purposes of Tier Classification.

(4)   Notwithstanding any provision of 310 CMR 40.0501(3)  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, and, if applicable, a Tier I Permit Application, if such RP, PRP or Other Person submits either a Response Action Outcome 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).

(5)   Any person undertaking response actions at a Location To Be Investigated,  unclassified disposal site, or non-priority disposal site without a Waiver listed in the 1993 Transition List, or any addendum thereto, shall submit to the Department a Tier Classification Submittal by the applicable deadline established by the Transition Provisions, 310 CMR 40.0600.

(6)   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.

(7)   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 prohibited 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 Response Action Outcome Statement; or

2.   a Tier Classification Submittal and, if applicable, a Tier I Permit  Application;

(b)   such disposal site had been categorically classified as Tier IB  before June 27, 2003 pursuant to 310 CMR 40.0600 or as a result of the failure of an RP, PRP, or Other Person to submit one of the following by the applicable deadline:

1.   a Response Action Outcome Statement;

2.   a Tier Classification Submittal, and, if applicable, a Tier I Permit Application; or

(c)   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 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)(a) or (b) shall Tier Classify such disposal site pursuant to the requirements at 310 CMR 40.0510.

(4)   Any disposal site deemed Tier ID by the Department pursuant to 310 CMR 40.0502(1)(c) 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, then the RP, PRP, or Other Person shall classify the disposal site pursuant to 310 CMR 40.0510 when the Department determines that the RP, PRP, or Other Person has addressed the non-compliance.

(5)   Notwithstanding 310 CMR 40.0502(1)(b), for the purpose of assessing annual compliance assurance fees in accordance with 310 CMR 4.00 for billable years prior to June 27, 2003, each disposal site for which the Department does not receive a Response Action Outcome Statement, or a Tier Classification Submittal, and, if applicable, an application for a Tier I Permit by the applicable deadline for Tier Classification shall be categorically classified as a Tier IB disposal site on the date of the applicable deadline if such deadline is prior to June 27, 2003.

40.0510:   Tier Classification Process

(1)   The Tier Classification process consists of:

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

(b)   the completion of a Numerical Ranking System Scoresheet in accordance with 310 CMR 40.1500;

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

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

(e)   the public involvement activities relevant to Tier Classification, including, but not limited to, those activities set forth in 310 CMR 40.1403(3) and 40.1403(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;

(c)   the certification required by 310 CMR 40.0009;

(d)   the certification required by 310 CMR 40.0540(1) for a Tier II disposal site; such certification shall be provided in a Permit Application pursuant to 310 CMR 40.0703(9) for a Tier I disposal site;

(e)   the compliance history required by 310 CMR 40.0540(2) for a Tier II disposal site; such compliance history shall be provided in a Permit Application pursuant to 310 CMR 40.0703(9) for a Tier I disposal site; and

(f)   one of the following:

1.   a Phase II Scope of Work completed in accordance with 310 CMR 40.0834; or

2.   a Conceptual Scope of Work that, at a minimum, includes:

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

b.   a projected schedule that includes interim milestones; and

c.   an estimate of the cost.

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

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

(b)   a Numerical Ranking System (NRS) Scoresheet completed in accordance with 310 CMR 40.1500;

(c)   on the basis of the Tier I Inclusionary Criteria or the score a disposal site receives using the Numerical Ranking System, an LSP Opinion as to whether a disposal site should be classified by the Department as Tier I or Tier II; and if such LSP Opinion indicates that a disposal site should be classified by the Department as Tier I, an LSP Opinion as to whether such disposal site should be categorized as Tier IA, Tier IB or Tier IC for the purposes of permitting pursuant to 310 CMR 40.0700; and

(d)   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.

(4)   In the event that an LSP Tier Classification Opinion indicates that, on the basis of the Tier I Inclusionary Criteria or the disposal site's NRS score, a disposal site should be classified as Tier I, the person submitting the Tier Classification Submittal shall include therein a completed application for a Tier I Permit in accordance with 310 CMR 40.0700.

(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 shall apply unless and until the RP, PRP or Other Person submits a revised NRS Scoresheet and 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 Scoring.

(a)   Any person performing Tier Classification for a disposal site shall score such disposal site using the Numerical Ranking System described in 310 CMR 40.1500. The disposal site score 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 Inclusionary Criteria.

(a)   Any disposal site which meets any of the following criteria shall be  categorically classified as Tier I, regardless of the score such disposal site receives using the Numerical Ranking System:

1.   any disposal site at which:

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 at the time of Tier Classification, and

b.   such groundwater is located within an Interim Wellhead Protection Area or Zone II; or

2.   any disposal site at which an Imminent Hazard is present at the time of Tier Classification.

(b)   Any disposal site that is classified as Tier I only because such disposal site meets the criteria set forth in 310 CMR 40.0520(2)(a)2. may be reclassified as Tier II pursuant to 310 CMR 40.0530 once the Imminent Hazard is no longer present at the disposal site.

(c)   For the purpose of assessing annual compliance assurance fees in accordance with 310 CMR 4.00 for billable years prior to June 27, 2003, each disposal site for which the Department does not receive one of the following by  the applicable deadline for Tier Classification shall be categorically classified as a Tier IB disposal site on the date of the applicable deadline if such deadline is prior to June 27, 2003.

1.   a Response Action Outcome Statement, or

2.   a Tier Classification Submittal, and, if applicable, an application for a Tier I Permit.

(d)   Each disposal site for which the deadline for Tier Classification pursuant to 310 CMR 40.0501(3) is prior to February 1, 1995, and for which the Department has not received a Tier Classification Submittal or a Response Action Outcome Statement by February 24, 1995, shall be categorically classified as Tier IB, effective February 24, 1995.

(3)   NRS Cut-off Scores.  The score a disposal site receives using the Numerical Ranking System shall serve as the basis for the LSP Tier Classification Opinion as follows:

(a)   any disposal site receiving a total score equal to or greater than 550 shall be considered Tier IA;

(b)   any disposal site receiving a total score less than 550 and equal to or greater than 450 shall be considered Tier IB;

(c)   any disposal site receiving a total score less than 450 and equal to or greater than 350 shall be considered Tier IC; and

(d)   any disposal site receiving a total score of less than 350 shall be considered Tier II, unless such disposal site meets any of the Tier I Inclusionary Criteria specified in 310 CMR 40.0520(2)(a), in which case the disposal site shall be considered Tier IC.

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

(1)   An RP, PRP or Other Person  performing response actions at a disposal site following Tier Classification shall re-evaluate such disposal site using the Numerical Ranking System and the Tier I Inclusionary Criteria specified in 310 CMR 40.0520(2)(a)1. if he or she obtains new or additional data, facts or other information which is reasonably likely to result in a finding that would cause reclassification of the disposal site from Tier II to Tier I, from Tier IC to Tier IA or Tier IB, or, from Tier IB to Tier IA.

(2)   An RP, PRP or Other Person performing response actions at a Tier II disposal site that receives a total score equal to or greater than 350 or meets the Tier I Inclusionary Criteria upon re-evaluating the disposal site  shall submit to the Department a Tier Classification Submittal and an application for a Tier I Permit in accordance with 310 CMR 40.0700 within 60 days of obtaining knowledge of such score.

(3)   An RP, PRP or Other Person performing response actions at a Tier IC disposal site that receives a total score equal to or greater than 450  upon re-evaluating the disposal site shall submit an application to the Department for a Major Modification of a Tier I Permit in accordance with 310 CMR 40.0707 to upgrade the permit category to Tier IB or Tier IA within 60 days of obtaining knowledge of such score.

(4)   An RP, PRP or Other Person performing response actions at a Tier IB disposal site that receives a total score equal to or greater than 550  upon re-evaluating the disposal site shall submit an application to the Department for a Major Modification of a Tier I Permit in accordance with 310 CMR 40.0707 to upgrade the permit category to Tier IA within 60 days of obtaining knowledge of such score.

(5)   An RP, PRP or Other Person may downgrade the Tier Classification category of a disposal site after re-evaluating the disposal site pursuant to 310 CMR 40.0530. To do so, an RP, PRP or Other Person for a Tier IA, Tier IB or Tier IC disposal site shall submit a revised Tier Classification Submittal and an application for a Major Permit Modification to the Department in accordance with 310 CMR 40.0707.

(6)   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 original deadlines applicable to such disposal site as detailed in 310 CMR 40.0550(1) and (2) or 310 CMR 40.0560(1) and (2), as they originally applied.

40.0540:   Demonstration of Ability and Willingness

(1)   Each person filing a Tier Classification Submittal for a Tier II disposal site 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 II 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.

(3)   Each person filing a Tier Classification Submittal for a Tier I disposal site shall provide the certifications required with a Tier I Permit Application in accordance with 310 CMR 40.0703(9).

40.0550:   Response Action Deadlines and Requirements for Tier I Disposal Sites

(1)   Deadlines for Response Action Outcomes.  Except as expressly provided by 310 CMR 40.0530(6) or 310 CMR 40.0000 or as otherwise ordered or agreed to in writing by the Department, any person undertaking response actions at a Tier I disposal site pursuant to a Tier I Permit, as described in 310 CMR 40.0700, shall achieve a Response Action Outcome pursuant to 310 CMR 40.1000 within five years of the effective date of such permit.

(2)   Deadlines for Submittals.  Except as expressly provided by  310 CMR 40.0530(6), 310 CMR 40.0550(3), or  310 CMR 40.0000, or as otherwise ordered or agreed to in writing by the Department, any person undertaking response actions at a Tier I disposal site pursuant to a Tier I Permit shall submit the following documents to the Department by the following deadlines:

(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)   Phase II Report, and, if applicable, a Phase III Remedial Action Plan within two years of the effective date of such permit;

(c)   a Phase IV Remedy Implementation Plan within three years of the effective date of such permit;

(d)   a Response Action Outcome Statement pursuant to 310 CMR 40.1000 within five years of the effective date of such permit; and

(e)   any other submittal as required by the terms and conditions of a Tier I Permit pursuant to 310 CMR 40.0740.

(3)   Notwithstanding any provision of 310 CMR 40.0550(2) to the contrary, submittal to the Department of those documents described in 310 CMR 40.0550(2)(a) through (c) shall not be required at any disposal site for which a Response Action Outcome Statement is submitted to the Department prior to an applicable document submittal deadline.

(4)   Approvals for Tier I Disposal Sites.

(a)   Except as provided in 310 CMR 40.0550(4)(b), an RP, PRP or Other Person undertaking response actions at a Tier I disposal site pursuant to a Tier I Permit may perform the response actions which are the subject of the submittals required by 310 CMR 40.0550(2) without the Department's prior approval thereof.

(b)   Notwithstanding 310 CMR 40.0550(4)(a), the Department may at any time require an RP, PRP or Other Person undertaking response actions at a Tier I disposal site to obtain prior Departmental approval of one or more of the submittals specified by 310 CMR 40.0550(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.

(5)   Notification of Delay in Compliance with Deadlines for Tier IA, Tier IB and Tier IC Disposal Sites.  Except as provided by 310 CMR 40.0025 and 40.0167, 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 of the  deadlines or time periods specified in 310 CMR 40.0550(2), in conditions in a Permit issued pursuant to 310 CMR 40.0700, or any other determination or deadline for response actions set forth in writing by the Department 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 the 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)   Notifications.  After permitting pursuant to 310 CMR 40.0700, an RP, PRP or Other Person for a Tier IA, Tier IB or Tier IC disposal site shall make the following notifications to the Department within the following timeframes:

(a)   notification of the commencement of initial field activities related to the implementation of Comprehensive Response Actions at least seven days prior to their initiation. 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; and

(b)   any other notifications specified in a Tier I Permit within the required timeframes.

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

(1)   Deadlines for Response Action Outcomes.  Except as expressly provided by 310 CMR 40.0530(6) or 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 Tier II disposal site shall achieve a Response Action Outcome within five years of the effective date of initial Tier Classification.

(a)   A Tier II Classification for a disposal site 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 II Classification has expired unless a Tier II Classification Extension is obtained pursuant to 310 CMR 40.0560(7).

(2)   Deadlines for Submittals. Except as provided by 310 CMR 40.0530(6), 310 CMR 40.0560(3), or  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 Tier II disposal site shall submit the following documents to the Department by the following deadlines:

(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, and, if applicable, a Phase III  Remedial Action Plan, within two years of the effective date of Tier Classification;

(c)    a Phase IV Remedy Implementation Plan within three years of the effective date of Tier Classification; and

(d)   a Response Action Outcome Statement pursuant to 310 CMR 40.1000 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 (c) shall not be required at any disposal site for which a Response Action Outcome Statement is submitted to the Department prior to an applicable document submittal deadline.

(4)   Approvals and Notice.

(a)   Except as provided in 310 CMR 40.0560(4)(b), an RP, PRP or Other Person undertaking response actions at a Tier II disposal site 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 II 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 the disposal site or to some portion thereof.

(c)   No person shall perform Phase IV response actions at a Tier II disposal site unless and until 20 days have passed from the date of publication of the notice required by 310 CMR 40.1403(6).

(5)   Notification of Delay in Compliance with Deadlines for Tier II 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 classified as Tier II, 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)   Notifications.  RPs, PRPs or Other Persons conducting response actions at Tier II disposal sites shall make the following notifications to the Department within the following timeframes.  Notification of the commencement of initial field activities related to the implementation of Comprehensive Response Actions at least seven days prior to their initiation. 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 II Classification Extensions.

(a)   If a Response Action Outcome Statement indicating that a Temporary or Permanent Solution has been achieved has not been submitted to the Department for a Tier II disposal site prior to the expiration of the Tier II Classification, the person undertaking response actions at  such site  shall extend  the Tier II Classification  by submitting a Tier II Classification Extension Submittal to the Department.

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

(c)   The Tier II 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 Temporary or Permanent Solution 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 Class C Response Action Outcome at the disposal site pursuant to 310 CMR 40.1000 within one year of the effective date of the Tier II 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 II 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)   A Tier II Classification Extension shall take effect 45 days after submission of a complete Tier II Classification Extension Submittal to the Department unless the Department issues a written denial for such Extension prior to the termination of such 45 day time period.  Unless otherwise specified by the Department, the Extension shall be effective for a period of one year beyond the effective date of the Tier II Classification Extension or one year from the expiration date of the Tier II Classification in effect prior to the submission of the most recent Extension, whichever date is later.  An RP, PRP or Other Person shall notify the Department pursuant to 310 CMR 40.0560(7) if additional extensions are required on an annual basis thereafter; and

(e)   The Department reserves the right to reconsider the need for Departmental oversight or to initiate enforcement actions related to any Tier II Classification Extension Submittal  or when any timeline for achieving an RAO pursuant to 310 CMR 40.0560 is exceeded; and

(f)   A Tier II 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 Response Action Outcome.  A Tier II 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 II Disposal Sites.

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

(b)   A Tier II 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 II Classification or Waiver of Approvals;

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 these regulations.

(c)   A change in persons conducting response actions at a Tier II disposal site shall take  effect 45 days after submission of a complete Tier II Transfer Submittal to the Department unless the Department issues a written denial of such transfer prior to the termination of such 45 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 II Transfer Submittal or when any timeline for achieving an RAO pursuant to 310 CMR 40.0560 at a Tier II 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 40.0550 and 40.0560, Eligible Persons, Eligible Tenants or Other Persons who are required or intend to conduct response actions at a Tier IA, IB, IC, ID or Tier II disposal site and who have not previously submitted a Tier I Permit Application or Tier II Classification Submittal for the disposal site may seek to re-establish the deadlines for response actions by submitting a Tier I Permit Application or Tier II Classification Submittal, whichever is applicable; 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 12/14/07 shall make such submittal within 120 days of 12/14/07, unless the Department agrees to a later date;

(b)   Eligible Persons who become an owner or operator of a site or portion thereof after 12/14/07  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 12/14/07 shall make such submittal within 120 days of 12/14/07, unless the Department agrees to a later date;

(d)   Eligible Tenants who acquire occupancy, possession or control of a site or portion thereof after 12/14/07 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 12/14/07  shall make such submittal within 120 days of 12/14/07, unless the Department agrees to a later date; and

(f)   Persons who became Other Persons after 12/14/07 shall make such submittal within 120 days of becoming an Other Person, unless the Department agrees to a later date.

(2)   Deadlines re-established pursuant to 310 CMR 40.0570 shall be calculated from the effective date of the Tier I Permit or Tier II 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 and NRS Scoresheet previously provided to the Department, provided that the Tier I Permit Application or Tier II Classification Submittal includes an LSP Opinion stating that such Application or Submittal relies on such previous Phase I Report and NRS Scoresheet.

(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, and, if applicable, a Phase III  Remedial Action Plan, within two years of the effective date of the Tier I Permit or Tier II Classification;

(c)   a Phase IV Remedy Implementation Plan within three years of the effective date of Tier I Permit or Tier II Classification; and

(d)   a Response Action Outcome Statement pursuant to 310 CMR 40.1000 within five years of the effective date of Tier I Permit or Tier II 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 I Permit or Tier II 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 I Permit or Tier II 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 IA, Tier IB, Tier IC, 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 criteria in 310 CMR 40.0730(1) 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.   if applicable, is the permittee of a Tier Classified 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), and the permit number;

(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 310 CMR 1.00; 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).