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40.0600:   Transition Provisions

310 CMR 40.0601 through 40.0699, cited collectively as 310 CMR 40.0600, sets forth the requirements for RPs, PRPs and Other Persons with disposal sites and Locations To Be Investigated (LTBIs) identified on the Transition List of Confirmed Disposal Sites and Locations To Be Investigated (the 1993 Transition List) and any addendum thereto, published by the Department in accordance with M.G.L. c. 21E, s. 3A(a) and 310 CMR 40.0168(1).

40.0601:   Scope and General Provisions

(1)   The 1993 Transition List and 310 CMR 40.0600 shall be referenced by RPs, PRPs and Other Persons to determine the status of listed disposal sites and LTBIs and the deadlines for undertaking response actions at such disposal sites and locations pursuant to 310 CMR 40.0000. The applicable deadline for an RP, PRP or Other Person to submit an LSP Evaluation Opinion or statement in accordance with 310 CMR 40.0610, 40.0620, and 40.0636 shall be based upon the date such site was first listed on any Department "List of Confirmed Disposal Sites and Locations To Be Investigated" in the same category in which it is listed on the 1993 Transition List.

(2)   Notwithstanding the deadlines set forth in 310 CMR 40.0600, the Department may establish Interim Deadlines for RPs, PRPs and Other Persons to submit LSP Evaluation Opinions pursuant to 310 CMR 40.0600 and/or to conduct response actions at LTBIs or disposal sites. The Department may require RPs, PRPs and Other Persons to submit LSP Evaluation Opinions and/or conduct response actions for specific disposal sites or LTBIs on a case-by-case basis earlier than the deadline applicable  pursuant to 310 CMR 40.0610, 40.0620, or 40.0636.

(3)   An RP, PRP or Other Person who is conducting or continues to conduct response actions at a disposal site or Location To Be Investigated subject to the Transition Provisions on or after October 1, 1993, shall conduct such response actions in accordance with the applicable requirements of 310 CMR 40.0600.

(4)   Notwithstanding the deadlines set forth in 310 CMR 40.0610(3), 40.0620(3), and 40.0636(3), releases and threats of release of oil and/or hazardous material which require a "2 Hour" or "72 Hour" notification pursuant to 310 CMR 40.0311 through 40.0314 shall be made to the Department within the applicable timeframes specified in 310 CMR 40.0311 through 40.0314.

(5)   Any LSP Evaluation Opinion submitted to the Department pursuant to 310 CMR 40.0600 shall be submitted on a form established by the Department for such purposes.

(6)   Additional Transition Provision for Certain LTBIs, Unclassified Sites and Non-priority Disposal Sites without Waivers.  Except as provided by 310 CMR 40.0601(2), the deadline of August 2, 1995, and the deadline of August 2, 1996, specified in 310 CMR 40.0610(3), 40.0620(3), and 40.0636(3), for submittal of a Tier Classification Submittal, an LSP Evaluation Opinion, a Response Action Outcome Statement or a statement affirming the conclusions in a previously filed Phase I Report, whichever is applicable, shall be extended to the date that is 90 days after the effective date of the first revision to the definition of the term "Potentially Productive Aquifer" in 310 CMR 40.0006 and to 310 CMR 40.0932(5)(b) promulgated after December 15, 1995, provided that the following conditions are met:

(a)   Such applicable deadline shall be extended where:

1.   The groundwater at such location or disposal site is defined as Category GW-1 solely because it is within a Potentially Productive Aquifer pursuant to 310 CMR 40.0932(4)(b); and/or

2.   The soil at such location or disposal site lies above groundwater which is defined as GW-1 solely because the groundwater is within a Potentially Productive Aquifer pursuant to 310 CMR 40.0932(4)(b).

(b)   To extend a deadline based on the conditions of 310 CMR 40.0601(6), the RP, PRP or Other Person subject to the deadline shall submit a written statement to the Department on or before such deadline, indicating his or her intention to submit a Tier Classification Submittal, an LSP Evaluation Opinion, a Response Action Outcome Statement, or a statement affirming the conclusions in a previously filed Phase I Report (as appropriate) by the extended deadline.

40.0602:   Incorporation of 310 CMR 40.000 by Reference in the Transition Provisions.

310 CMR 40.000, the Massachusetts Contingency Plan, as promulgated in 1988, is incorporated by reference throughout 310 CMR 40.0600. The following sections, when cited in 310 CMR 40.0600, refer to the 1988 MCP: 310 CMR 40.300, 40.537, 40.541, 40.542, 40.543, and 40.544.

40.0610:   Locations To Be Investigated

(1)   Except as provided in 310 CMR 40.0610(4), the RP, PRP or Other Person for an LTBI identified on the 1993 Transition List shall assess such location in accordance with 310 CMR 40.0000 to determine whether one or more releases of oil and/or hazardous material has occurred that requires notification pursuant to 310 CMR 40.0300 and, whether additional response actions are required at such site pursuant to 310 CMR 40.0000. Except as provided by 310 CMR 40.0601(2) or (6), such assessments shall be conducted by the applicable deadline established by 310 CMR 40.0610(3).

(2)   After completing the assessment required by 310 CMR 40.0610(1), the RP, PRP or Other Person for an LTBI identified on the 1993 Transition List shall submit to the Department one of the following LSP Evaluation Opinions:

(a)   the location is not a  site where a release of oil and/or hazardous material has occurred which is subject to the notification requirements of 310 CMR 40.0300 and no further response actions are required;

(b)   a release of oil and/or hazardous material subject to the notification requirements of 310 CMR 40.0300 has occurred or may have occurred at the location but response actions completed prior to the date of the LSP Evaluation Opinion meet the requirements of a Class A or Class B Response Action Outcome pursuant to 310 CMR 40.1000;

(c)   a release of oil and/or hazardous material subject to the notification requirements of 310 CMR 40.0300 has occurred or may have occurred at the location and further response actions under 310 CMR 40.0000 are necessary; or

(d)   the location is a disposal site which is adequately regulated pursuant to 310 CMR 40.0110.

(3)   Except as provided by 310 CMR 40.0601(2) or (6), the RP, PRP or Other Person for an LTBI listed by the Department on the Transition List shall submit an LSP Evaluation Opinion to the Department in accordance with 310 CMR 40.0610(2), pursuant to the following schedule:

(a)   for a site listed by the Department as an LTBI between January 15, 1987, and January 15, 1989: on or before August 2, 1995;

(b)   for a site listed by the Department as an LTBI between April 15, 1989, and January 15, 1991: on or before August 2, 1996; and

(c)   for a site listed by the Department as an LTBI between April 15, 1991, and October 1, 1993: on or before August 2, 1997.

(4)   The RP, PRP or Other Person for an LTBI on the 1993 Transition List who has submitted to the Department, prior to October 3, 1988, a "no further action" recommendation, or, prior to October 1, 1993, a Preliminary Assessment (PA) Form in accordance with 310 CMR 40.541, or a Phase I Report in accordance with 310 CMR 40.543, which concluded that such location is not a disposal site or is a disposal site for which no further remedial  actions are necessary, shall not be required to undertake the assessment required in 310 CMR 40.0610(1) pending the Department's review and approval of the "no further action" recommendation, PA Form or Phase I Report, except as otherwise provided in 310 CMR 40.0600 or unless ordered by the Department pursuant to M.G.L. c. 21E,  s.s. 9 or 10.  An RP, PRP or Other Person who has submitted such "no further action" recommendation , PA Form or Phase I Report to the Department shall:

(a)   submit an LSP Evaluation Opinion to the Department in accordance with 310 CMR 40.0610(2), pursuant to the schedule in 310 CMR 40.0610(3), if the PA Form or Phase I Report:

1.   does not specifically include a statement in accordance with 310 CMR 40.541(4)(a) or (4)(b), or 310 CMR 40.543(3)(a) or (3)(b), either that such location:

a.   is not a disposal site or;

b.   is a disposal site for which no further remedial  actions are necessary; or

2.   does not support such conclusions in accordance with 310 CMR 40.541(4)(a) or (4)(b), or 310 CMR 40.543(3)(a) or (3)(b); or

(b)   submit a statement  in accordance with the schedule in 310 CMR 40.0610(3), affirming that such PA Form or Phase I Report does support such conclusions in accordance with 310 CMR 40.541(4)(a) or (4)(b), or 310 CMR 40.543(3)(a) or (3)(b), or, in the case of a "no further action" recommendation, affirming that the conclusions of such recommendation are valid.  A statement submitted pursuant to 310 CMR 40.0610(4)(b) shall include the certification required by 310 CMR 40.0009.  The "no further action" recommendation, PA Form or Phase I Report affirmed by such statement shall not be deemed approved unless and until it is approved in writing by the Department.

(5)   An LSP Evaluation Opinion shall be submitted prior to conducting any remedial actions at an LTBI identified on the 1993 Transition List.  Unless one of the submittals listed below is submitted by the applicable deadline for the LSP Evaluation Opinion established in 310 CMR 40.0610(3), a Tier Classification Submittal pursuant to 310 CMR 40.0500, and, if applicable, an application for a Tier I Permit pursuant to 310 CMR 40.0700, shall be submitted by such deadline:

(a)   one of the LSP Evaluation Opinions specified in 310 CMR 40.0610(2)(a), 40.0610(2)(b), or 40.0610(2)(d);

(b)   a statement pursuant to 310 CMR 40.0610(4)(b); or

(c)   a Response Action Outcome Statement pursuant to 310 CMR 40.1000.

(6)   Should an  RP,  PRP or Other Person  for an LTBI on the 1993 Transition List  fail to submit to the Department by the applicable deadline established in 310 CMR 40.0610(3)  either one of the submittals listed in 310 CMR 40.0610(5)(a) through (c) or a Tier Classification Submittal pursuant to 310 CMR 40.0500, and, if applicable, an application for a Tier I Permit pursuant to 310 CMR 40.0700, the LTBI shall be categorically classified as a Tier IB disposal site on the date of the applicable deadline and the Department shall assess Tier IB annual compliance assurance fees pursuant to 310 CMR 4.00.

(7)   the Department may at any time classify an LTBI on the 1993 Transition List as Tier IA, IB, IC, or Tier II pursuant to 310 CMR 40.0500 based on available information.  RPs,  PRPs or Other Persons shall be assessed applicable annual compliance assurance fees pursuant to 310 CMR 4.00 for disposal sites classified in accordance with 310 CMR 40.0610(7).

40.0620:   Unclassified Disposal Sites

(1)   Except as provided in 310 CMR 40.0620(4), the RP, PRP or Other Person for a location listed as an unclassified disposal site on the 1993 Transition List shall assess such location in accordance with 310 CMR 40.0000 to determine whether one or more releases of oil and/or hazardous material has occurred that requires notification pursuant to 310 CMR 40.0300 and, whether additional response actions are required at the site pursuant to 310 CMR 40.0000.  Except as provided by 310 CMR 40.0601(2) or (6), such assessments shall be conducted by the applicable deadline established in 310 CMR 40.0620(3).

(2)   After completing the assessment required by 310 CMR 40.0620(1), the RP, PRP or Other Person for an unclassified disposal site identified in the 1993 Transition List shall submit to the Department one of the following LSP Evaluation Opinions:

(a)   the location is not a  site where a release of oil and/or hazardous material has occurred which is subject to the notification requirements of 310 CMR 40.0300, and no further response actions are required;

(b)   a release of oil and/or hazardous material subject to the notification requirements of 310 CMR 40.0300 has occurred or may have occurred at the location but response actions completed prior to the date of the LSP Evaluation Opinion meet the requirements of a Class A or Class B Response Action Outcome pursuant to 310 CMR 40.1000;

(c)   a release of oil and/or hazardous material subject to the notification requirements of 310 CMR 40.0300 has occurred or may have occurred at the location and further response actions  pursuant to 310 CMR 40.0000 are necessary.  An LSP Evaluation Opinion shall be submitted prior to conducting any additional response actions at the disposal site; or

(d)   the location is a disposal site which is adequately regulated pursuant to 310 CMR 40.0110.

(3)   Except as provided by 310 CMR 40.0601(2) or (6), the RP, PRP or Other Person for an unclassified disposal site on the 1993 Transition List shall submit to the Department an LSP Evaluation Opinion in accordance with 310 CMR 40.0620(2), pursuant to the following schedule:

(a)   for a site listed by the Department as a confirmed disposal site between January 15, 1987, and January 15, 1989: on or before August 2, 1995;

(b)   for a site listed by the Department as a confirmed disposal site between April 15, 1989, and January 15, 1991: on or before August 2, 1996; and

(c)   for a site listed by the Department as a confirmed disposal site between April 15, 1991, and October 1, 1993: on or before August 2, 1997.

(4)   The RP, PRP or Other Person for an unclassified disposal site on the 1993 Transition List who has submitted to the Department prior to October 1, 1993, a Phase I Report  in accordance with 310 CMR 40.543, which concluded that such location is not a disposal site or is a disposal site for which no further remedial actions are necessary, shall not be required to undertake the assessment required in 310 CMR 40.0620(1) pending the Department's review and approval of the Phase I Report, except as otherwise provided by 310 CMR 40.0600 or unless ordered by the Department pursuant to M.G.L. c. 21E, s.s. 9 or 10. An RP, PRP or Other Person who has submitted such Phase I Report to the Department shall:

(a)   submit an LSP Evaluation Opinion to the Department in accordance with 310 CMR 40.0620(2), pursuant to the schedule in 310 CMR 40.0620(3), if the Phase I Report:

1.   does not specifically include a statement in accordance with 310 CMR 40.543(3)(a) or (3)(b), which concluded either that such location:

a.   is not a disposal site; or

b.   is a disposal site for which no further remedial  actions are necessary; or

2.   does not support a conclusion in 310 CMR 40.543(3)(a) or (3)(b); or

(b)   submit a statement  in accordance with the schedule in 310 CMR 40.0620(3), affirming that such Phase I Report does support such conclusions in accordance with 310 CMR 40.543(3)(a) or (3)(b).  A statement submitted pursuant to 310 CMR 40.0620(4)(b) shall include the certification required by 310 CMR 40.0009.  The Phase I Report affirmed by such statement shall not be deemed approved unless and until it is approved in writing by the Department.

(5)   An RP, PRP or Other Person for an unclassified disposal site who submitted a Phase I Report to the Department prior to October 1, 1993, which concluded that such site may be classified as a nonpriority disposal site in accordance with 310 CMR 40.544, shall comply with the provisions of 310 CMR 40.0636 in order to conduct response actions at such disposal site on or after October 1, 1993, if such person is not issued a valid Waiver for such disposal site in accordance with 310 CMR 40.0630.

(6)   An LSP Evaluation Opinion shall be submitted prior to conducting any remedial actions at an unclassified disposal site on the 1993 Transition List.  Unless one of submittals listed below is submitted by the applicable deadline for the LSP Evaluation Opinion established in 310 CMR 40.0620(3), a Tier Classification Submittal pursuant to 310 CMR 40.0500, and, if applicable, an application for a Tier I Permit pursuant to 310 CMR 40.0700, shall be submitted by such deadline:

(a)   one of the LSP Evaluation Opinions specified in 310 CMR 40.0620(2)(a), 40.0620 (2)(b), or 40.0620(2)(d);

(b)   a statement pursuant to 310 CMR 40.0620(4)(b); or

(c)   a Response Action Outcome Statement pursuant to 310 CMR 40.1000.

(7)   Should an  RP,  PRP or Other Person  for an unclassified disposal site on the 1993 Transition List  fail to submit to the Department by the applicable deadline in 310 CMR 40.0620(3)  either one of the submittals listed in 310 CMR 40.0620(6)(a) through (c) or a Tier Classification Submittal pursuant to 310 CMR 40.0500, and, if applicable, an application for a Tier I Permit pursuant to 310 CMR 40.0700, the unclassified disposal site shall be categorically classified as a Tier IB disposal site on the date of the applicable deadline and the Department shall assess Tier IB annual compliance assurance fees pursuant to 310 CMR 4.00.

(8)   the Department may at any time classify an unclassified disposal site on the 1993 Transition List as Tier IA, IB, IC, or Tier II pursuant to 310 CMR 40.0500 based on available information. RPs,  PRPs or Other Persons shall be assessed applicable annual compliance assurance fees pursuant to 310 CMR 4.00 for disposal sites classified in accordance with 310 CMR 40.0620(8).

40.0630:   Nonpriority Disposal Sites with Waivers

(1)   Purpose and Scope:

(a)   310 CMR 40.0630 through 40.0639, cited collectively as 310 CMR 40.0630, describes the requirements for processing Waiver applications received by the Department before October 1, 1993, and the requirements for conducting response actions at  Waiver sites on or after October 1, 1993.

(b)   An RP, PRP or Other Person may apply to the Department for a Waiver of Approvals in accordance with 310 CMR 40.537 on or after August 2, 1993, and on or before September 30, 1993; provided, however, that the provisions of 310 CMR 40.0630 shall also apply to any such application which is approved by the Department.  Waiver applications shall not be accepted by the Department if they are postmarked or hand delivered to the Department after September 30, 1993.

(c)   Except as provided in 310 CMR 40.0630(7), a disposal site with a valid Waiver in effect on or after October 1, 1993, shall be categorically classified as a Tier II disposal site.

(d)   Notwithstanding any provision of 310 CMR 40.0560(1)(a) to the contrary, a Tier II Classification for a disposal site with a valid Waiver in effect on or after October 1, 1993, shall expire on the date the Waiver is scheduled to expire.

(2)   Requirements for Waivers approved by the Department which were applied for by July 30, 1993.   Notwithstanding any provision of 310 CMR 40.000 to the contrary, the following requirements, in addition to all other applicable requirements imposed pursuant to 310 CMR 40.000, and any other conditions imposed by a Waiver of Approvals, shall apply to each person who is conducting response actions at a Waiver site on or after October 1, 1993, pursuant to a valid Waiver obtained upon approval of a complete Waiver application which was postmarked or hand delivered to the Department on or before July 30, 1993:

(a)   Notwithstanding any provision of 310 CMR 4.00 to the contrary, Waiver recipients shall be exempt from the requirement to pay Tier II annual compliance assurance fees for the Waiver site pursuant to 310 CMR 4.00 as long as the Waiver remains in effect.

(b)   The Waiver Completion Statement, when submitted, shall indicate whether, in the opinion of the  Waiver recipient's consultant, a Permanent Solution has been achieved in accordance with 310 CMR 40.1000.  A Licensed Site Professional shall not be required to render an LSP Opinion regarding such Completion Statement.

(c)   Nothing herein shall be construed to preclude the Waiver recipient from engaging or employing an LSP for the purposes of providing Professional Services and rendering LSP Opinions with respect to a Waiver site.

(d)   Public Involvement Activities shall be conducted in accordance with 310 CMR 40.1400 through 310 CMR 40.1406.

(e)   The Waiver Site shall be exempt from 310 CMR 40.0520(2)(a)1., Categorical Tier I Designation.

(f)   The methods and standards for risk characterization  set forth in 310 CMR 40.0900 may be used to develop a Waiver Completion Statement pursuant to 310 CMR 40.0630(2)(b).

(g)   Waiver Completion Statements developed pursuant to 310 CMR 40.0630(2)(b) shall not include Activity and Use Limitations pursuant to 310 CMR 40.1000. RPs, PRPs  and Other Persons have the option to submit LSP Opinions and a Response Action Outcome Statement  pursuant to 310 CMR 40.1000 for a Waiver site in lieu of a Waiver Completion Statement under 310 CMR 40.537, in which case Activity and Use Limitations may be utilized as part of an RAO.

(h)   Response actions which have not been completed before expiration of the Waiver shall be performed in accordance with the requirements set forth in 310 CMR 40.0630(4).

(i)   The Waiver recipient shall notify the Department upon obtaining knowledge of any material information or data which indicates that the disposal site would not be classified as a nonpriority disposal site were such disposal site to be reclassified using the criteria set forth in 310 CMR 40.544, when such knowledge is obtained prior to October 1, 1993. When such knowledge is obtained on or after October 1, 1993, such reclassification shall be conducted pursuant to 310 CMR 40.0530.

(j)   The Waiver recipient shall notify the Department of any release or threat of release of oil and/or hazardous material, or Imminent Hazard, at the disposal site as follows:

1.   prior to October 1, 1993, notification shall be submitted pursuant to 310 CMR 40.542 of the 1988 regulations.

2.   on or after October 1, 1993, and for the duration of the Waiver, notification shall be submitted pursuant to 310 CMR 40.0300.

(3)   Requirements for Waivers approved by DEP and which were received by DEP between August 2, 1993, and September 30, 1993.   Notwithstanding any provision of 310 CMR 40.000 to the contrary, the following requirements, in addition to all other applicable requirements imposed pursuant to 310 CMR 40.000, and any other conditions imposed by a Waiver of Approvals, shall apply to each person conducting response actions at a  Waiver site on or after October 1, 1993, pursuant to a valid Waiver obtained upon approval of a complete Waiver application which was postmarked or hand delivered to DEP on or after August 2, 1993, and on or before September 30, 1993:

(a)   RPs, PRPs and Other Persons shall conduct response actions in accordance with the provisions of 310 CMR 40.0630(2)(b) through 40.0630(2)(j); and

(b)   RPs, PRPs and Other Persons conducting response actions pursuant to a Waiver issued in accordance with 310 CMR 40.0630(3) shall be assessed Tier II annual compliance assurance fees pursuant to 310 CMR 4.00, commencing one year from the date such Waiver is approved by the Department.

(4)   Continuation of Response Actions after the Expiration of a Waiver.  No Waiver issued pursuant to 310 CMR 40.537 and 310 CMR 40.0630 shall be extended by the Department beyond the expiration date of such Waiver. RPs, PRPs, or Other Persons shall continue response actions after the expiration of a Waiver as follows:

(a)    All response actions at the disposal site shall be conducted in accordance with 310 CMR 40.0560, Response Action Deadlines and Requirements for Tier II Disposal Sites; and

(b)    No later than 60 days prior to the expiration date of the Waiver, the Waiver recipient shall submit to the Department a  Tier II Extension Submittal in accordance with the requirements of 310 CMR 40.0560(7).

(5)   The Department may withdraw its approval of a Waiver issued pursuant to 310 CMR 40.537  and 310 CMR 40.0630 if it determines that the Waiver recipient is in noncompliance with any of the conditions set forth in such Waiver, or with applicable provisions of 310 CMR 40.000, 310 CMR 40.0630, and any other applicable requirements, or the Department has reason to believe that conditions at the disposal site have changed such that the disposal site is no longer a Tier II disposal site.

(6)   An approved Waiver in effect on or after October 1, 1993, shall not be transferred or reassigned.  Response actions may be continued at a Waiver site by an RP, PRP or Other Person who is not the Waiver recipient as follows:

(a)    All response actions at the disposal site shall be conducted in accordance with 310 CMR 40.0560, Response Action Deadlines and Requirements for Tier II Disposal Sites; and

(b)   The RP, PRP or Other Person proposing to continue response actions at the disposal site in  place of the Waiver recipient shall submit to the Department a  Tier II Transfer Submittal pursuant to 310 CMR 40.0560(8), Changes in Persons Undertaking Response Actions at Tier II Disposal Sites.

(c)   Notwithstanding any provision of 310 CMR 40.000 or 310 CMR 40.0000, a Waiver of Approvals shall expire upon the effective date of the Tier II Transfer Submittal required by 310 CMR 40.0630(6)(b) and 40.0560(8).

(7)   Each Waiver site for which the Department does not receive any of the following by the date the Waiver is scheduled to expire shall be categorically classified as a Tier IB disposal site on the day following such date:

(a)   a Waiver Completion Statement indicating that a Temporary or Permanent Solution has been achieved;

(b)   a Response Action Outcome Statement; or

(c)   the Tier II Extension Submittal required by 310 CMR 40.0630(4)(b).

(8)    The Department may at any time classify a Waiver site subject to 310 CMR 40.0630 as Tier IA, IB, IC, or Tier II pursuant to 310 CMR 40.0500 based upon available information. RPs,  PRPs or Other Persons shall be assessed applicable annual compliance assurance fees pursuant to 310 CMR 4.00 for disposal sites classified in accordance with 310 CMR 40.0636(8).

40.0636:   Nonpriority Disposal Sites without Waivers

(1)   Except as provided in 310 CMR 40.0636( 4), the RP, PRP or Other Person for a location listed on the 1993 Transition List as a nonpriority disposal site who does not have a valid Waiver from the Department shall assess such location pursuant to 310 CMR 40.0000 to determine whether one or more releases of oil and/or hazardous material has occurred that requires notification pursuant to 310 CMR 40.0300, and whether additional response actions are required pursuant to 310 CMR 40.0000.  Except as provided by 310 CMR 40.0601(2) or (6), such assessments shall be conducted by the applicable deadline established by 310 CMR 40.0636(3).

(2)   After completing the assessment required by 310 CMR 40.0636(1), the RP, PRP or Other Person for such nonpriority disposal site shall submit to the Department one of the following LSP Evaluation Opinions:

(a)   the location is not a  site where a release of oil and/or hazardous material has occurred which is subject to the notification requirements of 310 CMR 40.0300, and no further response actions are required;

(b)   a release or threat of release of oil and/or hazardous material subject to the notification requirements of 310 CMR 40.0300 has occurred or may have occurred at the location but response actions completed prior to the date of the LSP Evaluation Opinion meet the requirements for a Class A or Class B Response Action Outcome pursuant to 310 CMR 40.1000;

(c)   a release of oil and/or hazardous material subject to the notification requirements of 310 CMR 40.0300 has occurred or may have occurred at the location and further response actions under 310 CMR 40.0000 are necessary; or

(d)   the location is a disposal site which is adequately regulated pursuant to 310 CMR 40.0110.

(3)   Except as provided by 310 CMR 40.0601(2) or (6), the RP, PRP or Other Person for a nonpriority disposal site  on the 1993 Transition List shall submit an LSP Evaluation Opinion to the Department in accordance with 310 CMR 40.0636(2), pursuant to the following schedule:

(a)   for a site listed by the Department as a confirmed disposal site between January 15, 1987, and January 15, 1989: on or before August 2, 1995;

(b)   for a site listed by the Department as a confirmed disposal site between April 15, 1989, and January 15, 1991: on or before August 2, 1996; and

(c)   for a site listed by the Department as a confirmed disposal site between April 15, 1991, and October 1, 1993: on or before August 2, 1997.

(4)   The RP, PRP or Other Person for a nonpriority disposal site on the 1993 Transition List who has submitted to the Department prior to October 1, 1993, a Phase I Report for approval in accordance with 310 CMR 40.543, which concluded either that such a location (a) is not a disposal site or, (b) is a disposal site for which no further remedial actions are necessary, shall not be required to undertake the assessment required in 310 CMR 40.0636(1) pending the Department's review and approval of the Phase I Report, unless as otherwise provided in this section or unless otherwise ordered by the Department pursuant to M.G.L. c. 21E, s.s. 9 or 10. An RP, PRP or Other Person who has submitted such Phase I report to the Department shall:

(a)   submit an LSP Evaluation Opinion to the Department in accordance with 310 CMR 40.0636(2), pursuant to the schedule in 310 CMR 40.0636(3), if the Phase I Report:

1.   does not specifically include a statement in accordance with 310 CMR 40.543(3)(a) or (3)(b), which concluded either that such location (a) is not a disposal site or (b) is a disposal site for which no further remedial  actions are necessary; or

2.   does not support a conclusion in 310 CMR 40.543(3)(a) or (3)(b); or

(b)   shall submit a statement  in accordance with the schedule in 310 CMR 40.0636(3), affirming that such Phase I Report does support a conclusion in accordance with 310 CMR 40.543(3)(a) or (3)(b).  A statement  submitted pursuant to 310 CMR 40.0636(4)(b) shall include the certification required by 310 CMR 40.0009.  The Phase I Report affirmed by such statement shall not be deemed approved unless and until it is approved in writing by the Department.

(5)   Release Abatement Measures shall not be undertaken by any person at a nonpriority disposal site which is found to be a disposal site where further response actions are required before an LSP Evaluation Opinion has been submitted in accordance with 310 CMR 40.0636(2)(c) or 40.0636(2)(d).

(6)   An LSP Evaluation Opinion shall be submitted prior to conducting any remedial actions at a nonpriority disposal site on the 1993 Transition List.  Unless one of submittals listed below is submitted by the applicable deadline for the LSP Evaluation Opinion established in 310 CMR 40.0636(3), a Tier Classification Submittal pursuant to 310 CMR 40.0500, and, if applicable, an application for a Tier I Permit pursuant to 310 CMR 40.0700, shall be submitted by such deadline:

(a)   one of the LSP Evaluation Opinions specified in 310 CMR 40.0636(2)(a), 40.0636(2)(b), or 40.0636(2)(d);

(b)   a statement pursuant to 310 CMR 40.0636(4)(b); or

(c)   a Response Action Outcome Statement pursuant to 310 CMR 40.1000.

(7)   Should the  RP,  PRP or Other Person  for a nonpriority disposal site on the 1993 Transition List fail to submit to the Department by the applicable deadline established in 310 CMR 40.0636(3) either one of the submittals listed in 310 CMR 40.0636(6)(a) through (c) or a Tier Classification Submittal pursuant to 310 CMR 40.0500, and, if applicable, an application for a Tier I Permit pursuant to 310 CMR 40.0700, the nonpriority disposal site shall be categorically classified as a Tier IB disposal site on the date of the applicable deadline and the Department shall assess Tier IB annual compliance assurance fees pursuant to 310 CMR 4.00.

(8)   the Department may at any time classify a nonpriority disposal site subject to 310 CMR 40.0636 as Tier IA, IB, IC, or Tier II pursuant to 310 CMR 40.0500 based upon available information.  RPs, PRPs or Other Persons  shall be assessed applicable annual compliance assurance fees pursuant to 310 CMR 4.00 for disposal sites classified in accordance with 310 CMR 40.0636(8).

40.0637:   Exemption from Transition Requirements

310 CMR 40.0637 establishes the requirements and criteria for determining that a Location to Be Investigated, Unclassified Disposal Site, or Non-Priority Disposal Site Without Waiver is exempt from the requirements of 310 CMR 40.0600, and describes the effect of the exemption.

(1)   Applicability.  The requirements and criteria set forth in 310 CMR 40.0637 apply to all Locations to Be Investigated ("LTBIs"), Unclassified Disposal Sites, and Non-Priority Disposal Sites Without Waivers published on the 1993 Transition List and Addenda and reviewed by the Department on or before August 9, 1996 pursuant to 310 CMR 40.0637.

(2)   Effect.  Any LTBI, Unclassified Disposal Site, or Non-Priority Disposal Site Without Waiver determined by the Department to meet the requirements of 310 CMR 40.0637 shall be exempt from the requirements of 310 CMR 40.0600.  The exemption shall not eliminate any requirement to notify the Department pursuant to 310 CMR 40.0300 or to undertake response actions pursuant to 310 CMR 40.0370, if warranted.

(3)   Criteria for Exempting LTBIs. In determining that an LTBI is exempt from the requirements of 310 CMR 40.0600, the Department shall consider the following criteria:

(a)   past and current uses of the property;

(b)   any information indicating that a release of oil or hazardous material has occurred or is occurring that would require notification to the Department pursuant to 310 CMR 40.0300;

(c)   response actions taken; and

(d)   any other information the Department deems relevant to its determination.

(4)   Criteria for Exempting Unclassified Disposal Sites and Non-Priority Disposal Sites Without Waivers.  In determining that an Unclassified Disposal Site or  a Non-Priority Disposal Site Without Waiver is exempt from the requirements of 310 CMR 40.0600, the Department shall consider the following criteria:

(a)   past and current uses of the Site;

(b)   conditions at the Site, including but not limited to:

1.   type of location;

2.   type of release;

3.   concentration and/or quantity of the release; and

4.   effects upon soil and/or groundwater;

(c)   response actions taken at the Site such that concentrations/quantities of oil or hazardous material that may remain would not require notification to the Department pursuant to 310 CMR 40.0300; and

(d)   any other information the Department deems relevant to its determination.

40.0640:   Priority Disposal Sites

(1)   Applicability:

(a)   310 CMR 40.0640 is applicable to RPs, PRPs or Other Persons for priority disposal sites on the 1993 Transition List.  Priority disposal sites for which an administrative consent order or judicial consent decree is in effect are subject to the requirements of 310 CMR 40.0670.

(b)   Except as provided by 310 CMR 40.0640(2), all priority disposal sites shall be categorically classified as Tier IA disposal sites and shall be assessed Tier IA annual compliance assurance fees pursuant to 310 CMR 4.00.

(c)   On or after October 1, 1993, an RP, PRP or Other Person shall continue to conduct  response actions approved by the Department as of October 1, 1993, at priority disposal sites pursuant to the terms and conditions of such approval, and shall conduct all future response actions not subject to such approval in accordance with the provisions of 310 CMR 40.0640.

(2)   The Department shall consider the criteria in 310 CMR 40.0730 when determining the nature and extent of Departmental oversight required for priority disposal sites.  Notwithstanding  any provision of 310 CMR 40.0640(1)(b) to the contrary, the Department may classify a priority disposal site as Tier IB pursuant to such criteria and the provisions of this section.  Such Tier IB classification shall not become effective until the Department receives a signed and dated Transition Statement in accordance with 310 CMR 40.0640(3)(b)1.  Until the Department's receipt of such Transition Statement, the Department shall assess Tier IA annual compliance assurance fees pursuant to 310 CMR 4.00.

(3)   Transition of Priority Disposal Sites for Tier IA and Tier IB Classification and Permitting:

(a)   The Department shall issue to an RP, PRP or Other Person for a priority disposal site subject to 310 CMR 40.0640, and may issue to an RP, PRP, or Other Person for a disposal site subject to 310 CMR 40.0670, a Tier IA or Tier IB Transition Classification and Permit Statement (a "Transition Statement").  Such statement shall be provided on a form established by the Department for such purposes.

(b)   Within 120 days of receipt of such statement, an RP, PRP or Other Person shall sign, date and submit the Transition Statement to the Department and indicate thereon either of the following:

1.   the RP, PRP or Other Person agrees to conduct all response actions pursuant to the terms and conditions of any and all Departmental approvals that are in effect on October 1, 1993; and the RP, PRP or Other Person agrees to conduct all future response actions at the disposal site which are not subject to an existing Departmental approval in accordance with a Tier IA or Tier IB Transition Permit, whichever is applicable, and in accordance with the provisions of 310 CMR 40.0000.

a.   A Tier IA or Tier IB Transition Permit for such disposal site shall become effective upon the Department's receipt of the signed and dated Transition Statement from an RP, PRP or Other Person;

b.   RPs, PRPs and Other Persons conducting response actions pursuant to 310 CMR 40.0640(3)(b)1. shall be exempt from applicable Tier I Permit application fees;

c.   RPs, PRPs and Other Persons conducting response actions pursuant to 310 CMR 40.0640(3)(b)1. shall be assessed applicable annual compliance assurance fees pursuant to 310 CMR 4.00, commencing October 1, 1993;

d.   RPs, PRPs and Other Persons shall not be required to engage or employ a Licensed Site Professional to render an LSP Opinion upon completion of a response action that was approved by the Department prior to October 1, 1993. In such case, the Consultant-of-Record, or another qualified consultant in his or her absence, shall state that the applicable requirements of 310 CMR 40.000, the 1988 regulations, and any approved conditions specified by the Department have been achieved. On or after October 1, 1993, an RP, PRP or Other Person may utilize the methods and standards for Risk Characterization as set forth in 310 CMR 40.0900 when conducting response actions approved by DEP prior to October 1, 1993; and

e.   RPs, PRPs and Other Persons have the option to engage or employ an LSP and to submit LSP Opinions pursuant to 310 CMR 40.0000 for response actions that were approved prior to October 1, 1993. If an LSP is so engaged or employed, an RP, PRP or Other Person shall include in a Transition Statement the name and license number of such LSP;

2.   the RP, PRP or Other Person does not accept the Tier IA or Tier IB Transition Permit, whichever is applicable, since, such disposal site may, in the Opinion of an LSP, be reclassified as Tier IB, Tier IC or Tier II. In this case, the Transition Statement shall include a Major Permit Modification application pursuant to 310 CMR 40.0707. Notwithstanding any provision of 310 CMR 40.0707 to the contrary, submittal of such application shall be allowed during any phase of response actions pursuant to 310 CMR 40.0800;

3.   the RP, PRP or Other Person does not accept the Tier IA or Tier IB Transition Permit, whichever is applicable, since, in the Opinion of an LSP, a Class A or Class B Response Action Outcome pursuant to 310 CMR 40.1000 has been achieved at the disposal site.  In this case, the Transition Statement shall include a Response Action Outcome Statement pursuant to 310 CMR 40.1000.   Such RAO Statement shall not become effective until Departmental approval is obtained pursuant to 310 CMR 40.0550(4)(a);

4.   the RP, PRP or Other Person does not accept  the Tier IA or Tier IB Transition Permit, whichever is applicable.

a.   Such Transition Statement shall indicate whether the RP, PRP or Other Person intends to undertake response actions approved prior to October 1, 1993. If such person will not, the statement shall include an explanation of why the RP, PRP or Other Person will not undertake such response actions at the disposal site pursuant to 310 CMR 40.0172, or other applicable provisions of 310 CMR 40.0000;

b.   If work approved prior to October 1, 1993, will be completed, the Transition Statement shall include a schedule for its completion;

c.   Either statement in 310 CMR 40.0640(3)(b)4. shall include a Status Report indicating whether one or more Temporary and/or Permanent Solutions have been achieved or will be achieved at the disposal site.  Such Status Report shall include an LSP Opinion regarding the completion of response actions to date and the response actions remaining in order to achieve a Permanent or Temporary solution at such disposal site.

(c)   Notwithstanding any provision of 310 CMR 40.0640(2) to the contrary, if an RP, PRP or Other Person for a priority disposal site fails to return an applicable Transition Statement as required pursuant to 310 CMR 40.0640(3)(b)1. through (b)4., or submits a Transition Statement pursuant to 310 CMR 40.0640(3)(b)4., on the day after the day such Transition Statement is due, such disposal site shall be categorically classified as a Tier IB disposal site, and  the RP, PRP or Other Person for such disposal site shall be assessed Tier IB annual compliance assurance fees.  Such RP, PRP or Other Person shall not conduct any unapproved response actions at a priority disposal site unless and until a Tier I Permit is obtained in accordance with 310 CMR 40.0640 and/or 40.0700.

(4)   Priority Disposal Sites with Approvals Pending as of October 1, 1993.  The following provisions are applicable to an RP, PRP or Other Person who submitted a Phase II, III, or IV Report, or portion thereof, to the Department prior to October 1, 1993, for which Departmental approval has not been given as of October 1, 1993.  The Department may notify an RP, PRP or Other Person that response actions at priority disposal sites with approvals pending as of October 1, 1993, may be conducted pursuant to a Tier IA or Tier IB Tier Classification. The process for Departmental notification and for an RP, PRP or Other Person to respond shall be as provided in 310 CMR 40.0640(3), except as follows:

(a)   RPs, PRPs or Other Persons shall comply with the provisions of 310 CMR 40.0000, including the requirement to engage or employ an LSP, in order to conduct further response actions at a priority disposal site pursuant to 310 CMR 40.0640(4);

(b)   An RP, PRP or Other Person shall be assessed Tier IA annual compliance assurance fees for any Departmental review of reports for such disposal sites which occurs on or after October 1, 1993, and prior to the  Department's receipt of a signed and dated Tier IB Transition Statement pursuant to 310 CMR 40.0640(3), if applicable; and

(c)   RPs, PRPs or Other Persons shall not be assessed Tier I Permit application fees in order for the Department to review reports or to issue Transition Statements for disposal sites subject to 310 CMR 40.0640(4).

40.0641:   Short Term Measures and Interim Measures

(1)   Short Term Measures (STMs) conducted pursuant to 310 CMR 40.542 and Interim Measures (IMs) conducted pursuant to a Departmental approval which are ongoing on or after October 1, 1993, shall be conducted pursuant to the provisions of the approval for the duration of the STM or IM unless otherwise specified by the Department.

(2)   RPs, PRPs or Other Persons have the option to engage or employ an LSP and to submit LSP Opinions pursuant to 310 CMR 40.0000 for an STM or IM conducted pursuant to 310 CMR 40.0641(1).  If an LSP is engaged or employed for such purposes, an RP, PRP or Other Person shall notify the Department and include in the notification the name and license number of the LSP who will be providing Opinions regarding future response actions.

(3)   Upon completion of an approved STM or IM being conducted pursuant to 310 CMR 40.0641(1), all future response actions at the disposal site shall be conducted pursuant to the provisions of 310 CMR 40.0000.

40.0642:   Requirements for Notifications Received between August 2, 1993 and September 30, 1993, Which are Not Listed on the Transition List or  Addenda

(1)   A No Further Action Letter pursuant to 310 CMR 40.541(4) or 40.543(3) submitted to the Department by an RP, PRP or Other Person for a  release or threat of release of oil and/or hazardous material  reported to the Department pursuant to 310 CMR 40.300 on or after August 2, 1993,  but before October 1, 1993, shall not become effective unless and until it is approved by the Department, unless as otherwise provided in 310 CMR 40.0642.

(2)   On or after October 1, 1993, an LSP Evaluation Opinion or a Response Action Outcome Statement pursuant to 310 CMR 40.1000 may be submitted to the Department in  place of a No Further Action Letter submitted pursuant to 310 CMR 40.0642(1).  Such Opinion or RAO Statement shall be based upon the provisions of 310 CMR 40.0000 and shall not be subject to Departmental approval.

(3)   Should an RP, PRP or Other Person not submit to the Department a No Further Action Letter pursuant to 310 CMR 40.000, the 1988 regulations,  before October 1, 1993, all future response actions  for such disposal site shall be conducted  in accordance with the requirements of 310 CMR 40.0000. Any applicable time periods for compliance with achieving a Response Action Outcome and for assessment of annual compliance assurance fees pursuant to 310 CMR 4.00 shall commence to run on October 1, 1993.

(4)   Should the Department learn or conclude on or after October 1, 1993, that locations subject to 310 CMR 40.0642 are disposal sites for which additional response actions are required, the Department may classify such disposal sites as Tier IA, IB, IC, or Tier II pursuant to 310 CMR 40.0500 based upon available information. RPs, PRPs or Other Persons for such disposal sites shall be assessed applicable annual compliance assurance fees pursuant to 310 CMR 4.00.

40.0650:   Remedial Sites

(1)   For the purposes of 310 CMR 40.0000, remedial sites listed on the 1993 Transition List as having Permanent Solutions shall be deemed to have achieved a Response Action Outcome  pursuant to 310 CMR 40.1000.

(2)   For the purposes of 310 CMR 40.0000, remedial sites listed on the 1993 Transition List as having Temporary Solutions shall be considered as having achieved a Response Action Outcome  pursuant to 310 CMR 40.1000.

(3)   All other remedial sites listed on the 1993 Transition List shall not require further response actions unless new information becomes available to an RP, PRP, Other Person or the Department that indicates that a site condition requires notification pursuant to 310 CMR 40.0300, or that a Temporary or Permanent Solution is no longer effective in protecting health, safety, public welfare and the environment pursuant to 310 CMR 40.0000.  RPs, PRPs or Other Persons may re-evaluate such sites in order to determine their applicable Response Action Outcome status pursuant to the provisions of 310 CMR 40.1000.

40.0660:   Deleted Sites

(1)   Deleted sites listed on the 1993 Transition List as being "Deleted-Not a Site" shall not be considered sites subject to further response actions pursuant to 310 CMR 40.0000 unless an RP, PRP, Other Person or the Department has knowledge or obtains knowledge that site conditions have changed since the site's deletion such that concentrations of oil and/or hazardous material constitute a release of oil and/or hazardous material which requires notification in accordance with 310 CMR 40.0300.

(2)   Deleted sites listed on the 1993 Transition List as "Deleted-No Further Action" shall not require further response actions unless an RP, PRP, Other Person or the Department has knowledge or obtains knowledge that site conditions have changed since the site's deletion such that concentrations of oil and/or hazardous material constitute a release of oil and/or hazardous material which requires notification in accordance with 310 CMR 40.0300.

40.0670:   Effect on a Consent Order, Decree, or Departmental Memorandum of Understanding

(1)   An administrative consent order issued pursuant to M.G.L. c. 21E, s. 9, a judicial consent decree or Departmental Memorandum of Understanding (MOU) signed, filed and/or effective before October 1, 1993 for a disposal site, shall remain in effect until their terms are fulfilled unless otherwise specified in such orders, decrees, or MOUs, or as agreed to in writing by the Department. All such disposal sites shall be categorically classified as Tier IA disposal sites for the purposes of oversight by the Department in accordance with 310 CMR 40.0000 and shall be assessed Tier IA annual compliance assurance fees  pursuant to 310 CMR 4.00 unless:

(a)   with respect to an administrative consent order, as otherwise ordered by the Department;

(b)   with respect to a consent decree, as otherwise ordered by the appropriate court; or

(c)   with respect to an MOU, as otherwise stipulated in such MOU.

(2)   The Department will review whether the parties to consent orders  are in compliance with such orders.  If the Department determines that such parties are not in compliance with such orders, the Department may take appropriate enforcement action including, but not limited to, the following:

(a)   requiring the parties to submit a Tier Classification Submittal and Permit Application, and incorporating the consent order  in a Tier I Permit;

(b)   requiring the parties to submit a Tier Classification Submittal and Permit Application, and negating the consent order; or

(c)   enforcing the terms of the consent order or decree.

(3)   For disposal sites where parties are in compliance with the terms of consent orders or decrees, the terms of such orders or decrees shall remain in effect unless and until otherwise modified by an order or decree.  Such parties shall not be required to  obtain a Tier I Permit  pursuant to 310 CMR 40.0700 in order to conduct any work approved pursuant to such consent order or decree.

(4)   The parties to consent orders, decrees or MOUs may request that such orders, decrees or MOUs be amended to allow response actions to be conducted pursuant to 310 CMR 40.0000.