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

40.0700:   Tier I Permits

The regulations published at 310 CMR 40.0700 through 40.0799, cited collectively as 310 CMR 40.0700, establish the requirements, standards and procedures for obtaining, modifying, transferring, extending, suspending and revoking Tier I Permits.  The regulations published at 310 CMR 4.00, which govern permit application fees, annual compliance assurance fees and schedules for timely action, also apply to Tier I Permits and shall be consulted as necessary.

40.0702:   Applicability

(1)   Except as provided in 310 CMR 40.0000, including, but not limited to, 310 CMR 40.0702(4), a Tier I Permit is required to conduct Comprehensive  Response Actions pursuant to 310 CMR 40.0870 for any disposal site classified as Tier IA, Tier 1B or Tier 1C pursuant to 310 CMR 40.0500 or 40.0600.

(2)   No person shall continue to perform Comprehensive Response Actions under 310 CMR 40.0870 at a disposal site classified as Tier II after he or she obtains reason to believe that, as a result of new or additional information obtained and/or as a result of re-scoring pursuant to 310 CMR 40.0530(2), such disposal site requires reclassification as a Tier I disposal site, unless and until such person submits a Tier I Permit Application.

(3)   A Tier I Permit is not required to perform Comprehensive Response Actions at disposal sites where the Department is conducting response actions.

(4)   A person who does not have a Tier I Permit for a disposal site for which a Tier I Permit is required shall not perform any Comprehensive Response Actions at such disposal site.

(5)   Except as provided in 310 CMR 40.0703(2), 310 CMR 40.0893, or 310 CMR 40.1067(6)(a), no person shall initiate or continue to perform Comprehensive Response Actions at a Tier I disposal site after the Tier I Permit obtained by such person for the Tier I disposal site has expired, unless and until such person obtains a Permit Extension in accordance with 310 CMR 40.0706 and 40.0720.

(6)   An application for a Tier I Permit may be submitted to perform Comprehensive Response Actions at a portion of a disposal site that comprises a single parcel of land or multiple parcels of land.

40.0703:   Requirements for All Tier I Permit Applications

All applicants for all Tier I Permits shall comply with the following  requirements:

(1)   Content of Application.  Except as expressly provided by 310 CMR 40.0704 through 40.0707, each Tier I Permit application filed with the Department shall include, at a minimum, the following:

(a)   a completed Transmittal Form for Permit Application and Payment using the form established by the Department for such purposes;

(b)   the applicable, completed Permit Application form using the form established by the Department for such purposes;

(c)   the certifications required  by 310 CMR 40.0009 and 40.0703(9)(a) and (10);

(d)    the applicable permit application fee payable under 310 CMR 4.00 (to be sent to DEP's Lockbox for payments);

(e)  a certification by the applicant that the application fee has been mailed, or hand-delivered to the Department, concurrent with submittal of the application.

(f)   the compliance history required by 310 CMR 40.0703(9)(b);

(g)   the tearsheet(s) from the newspaper(s) containing the public notice required by 310 CMR 40.0703(8)(a)1., with the date of the publication and name of the newspaper;

  (h)   a copy of the cover letter and notices submitted to the Chief Municipal Officer(s) and Board(s) of Health required by 310 CMR 40.0703(8)(a)2.;

(i)   the certification of the Primary Representative, if applicable, required by 310 CMR 40.0703(7); and

(j)   a list of all Status Reports, Phase Reports, or Completion Statements for any of the following response actions that are in progress or have been completed at the disposal site at the time of the Permit application that provides the dates on which such Reports or Statements were submitted to the Department or, for those response actions in progress, a description of the current status and projected schedule for completion of such response actions:

1.   any Immediate Response Action under 310 CMR 40.0410;

2.   any Release Abatement Measure under 310 CMR 40.0440;

3.   any Utility-related Abatement Measure under 310 CMR 40.0460; and

4.   notwithstanding 310 CMR 40.0702(2) and (3), any Comprehensive Response Actions in progress or which have been completed pursuant to 310 CMR 40.0800 at the time of the Permit Application.

(2)   Conducting Response Actions after Submission and Prior to Approval of a Permit Application.  An applicant may initiate or continue Preliminary Response Actions pursuant to 310 CMR 40.0400 or Phase II and/or Phase III Comprehensive Response Actions pursuant to 310 CMR 40.0830 and 310 CMR 40.0850, respectively, at a disposal site during the period after a Tier I Permit Application has been submitted and prior to its approval pursuant to 310 CMR 40.0720.

(3)   Filing.   The applicant shall file an original application with the Department.

(4)   Presentation.  All data, facts and other information provided in any document submitted with a Tier I Permit application shall be current and presented clearly and concisely.  Any supporting material and/or data upon which a Tier I Permit application relies, in whole or in part, shall be included in the Tier I Permit application.

(5)   Multiple Applicants.  In the event that more than one person is applying for a Tier I Permit, each applicant shall submit:

(a)   the certification required at 310 CMR 40.0009;

(b)   the certification required at 310 CMR 40.0703(9)(a);

(c)   the compliance history required by 310 CMR 40.0703(9)(b).

(6)   LSP Opinions.  All Tier I Permit applications shall include an LSP Opinion that such application has been prepared pursuant to the provisions of 310 CMR 40.0000, and shall include the signature and seal of the LSP-of-Record.

(7)   Primary Representative.

(a)   In the event that more than one person is applying for a Tier I Permit, the applicants shall designate and maintain a Primary Representative authorized to act on their behalf for the following purposes:

1.   to receive oral and written correspondence from the Department with respect to the application, as needed;

2.   to receive oral and written correspondence from the Department with respect to the performance of response actions conducted pursuant to the Tier I Permit; and

3.   to receive any statement of fee required by 310 CMR 4.03(3) associated with the Tier I Permit.

(b)   The Primary Representative shall certify in writing to the Department that he or she is fully authorized to act on behalf of the applicants for the purposes stated in 310 CMR 40.0703(7)(a).

(c)   Upon submittal of a permit application, receipt of material issued by the Department to the Primary Representative under 310 CMR 40.0703(7)(a) shall be deemed to be received by all permittees.

(d)   The Department shall be notified of any change in the designation of the Primary Representative no later than ten days after the effective date of such change through the filing of a Minor Permit Modification by the permittees in accordance with 310 CMR 40.0725.

(8)   Public Notice Requirements.

(a)   Prior to the submission of a Tier I Permit Application, each applicant or group of applicants shall take the following actions to provide notice to the public of the availability of a Tier I Permit Application for review and comment:

1.   publish a public notice pursuant to 310 CMR 40.0703(8)(b) and 310 CMR 40.1403(2)(b); and

2.   provide  a written  notice pursuant to 310 CMR 40.1403(2)(a)  to the Chief Municipal Officer(s) and Board(s) of Health in the community(ies) in which the disposal site is located and in any other community(ies) that is, or is likely to be, affected by the disposal site at least three days prior to the publication of the public notice; such written notice shall include:

a.   a copy of the public notice; and

b.   for an initial Tier I Permit Application, a copy of the disposal site map included in the Phase I Report pursuant to 310 CMR 40.0483(1)(b).

3.   if the Tier I Permit Application is for a site that meets the requirements specified at 310 CMR 40.0520(2)(a)1. or a site with groundwater contamination within the Zone A of  a Class A surface drinking water source that exceeds GW-1 standards, then provide the owner(s) of the Public Water Supply with a written notice pursuant to 310 CMR 40.1403(2)(a):

a.   at least three days prior to publication of the public notice, that includes:

i.   a copy of the public notice; and

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

b.   concurrently with submitting a Response Action Outcome for the disposal site to the Department that includes:

i.   a copy of the conclusions prepared pursuant to 310 CMR 40.1056; and

ii   a statement explaining how to obtain additional documentation that supports the conclusions.

(b)   The public notice required by 310 CMR 40.0703(8)(a) shall be in a form established by the Department for such purposes and shall include, but not be limited to, the following information:

1.   the name and address of the disposal site;

2.   the DEP Release Tracking Number(s), and the permit number, if one has been assigned;

3.   the name, address, and telephone number of the permit applicant(s);

4.   the proposed Tier I Permit category of the disposal site, as determined in accordance with 310 CMR 40.0500;

5.   the date on or about which the applicant(s) intends to file the application with the Department;

6.   a description of the procedures by which interested persons may review and comment on the permit application; and

7.   a statement that public involvement opportunities are available under 310 CMR 40.1403(9) and under 310 CMR 40.1404.

(c)   Interested persons may submit written comments related to a Permit Application within 20 days of the publication of the public notice required by 310 CMR 40.0703(8)(a)1. Such written comments shall be submitted to the Department by mail or by hand delivery during normal Department business hours and to the Permit applicant. 

(d)   The Department shall consider and respond as it deems appropriate to public comments submitted in accordance with 310 CMR 40.0703(8)(c).

(e)   On its own initiative, the Department may extend the period for submission of public comments.

(9)   Demonstration of Ability and Willingness.

(a)   Each applicant shall include the following written declaration with a Tier I Permit application:

"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 permit application 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."

(b)   Each applicant shall include a statement as part of the Tier I Permit application detailing such applicant's history of compliance with the Department's requirements, 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 and other federal, state and local government agencies, that are material to the disposal site.

(10)   Certification of Remittance of Permit Application Fee.  Each applicant shall include the following written declaration with a Tier I Permit application:

"I attest under the pains and penalties of perjury that, on or before the date of submittal of this permit application to the Department, I remitted, or caused to be remitted, the applicable permit fee payable in accordance with 310 CMR 4.00."

(11)   Information Requests.  Each applicant shall submit all additional information requested by the Department subsequent to filing an application, within the time specified by the Department in the Department's request.

40.0704:   Additional Application Submittal Requirements for Initial Tier I Permit Applications.

(1)   Content of Application.  In addition to the requirements in 310 CMR 40.0703, each Initial Tier I Permit application filed with the Department shall include the following:

(a)   the Tier Classification Submittal required by 310 CMR 40.0500, including, without limitation, an LSP Tier Classification Opinion; and

(b)   the Phase II Scope of Work or conceptual scope of work required by 310 CMR 40.0500.

40.0705:   Additional Application Submittal Requirements for Tier I Permit Transfers

(1)   General.  No Tier I Permit shall be transferred unless and until the permittee(s) has transferred such Permit pursuant to 310 CMR 40.0720.

(2)   Content of Application.  In addition to the requirements in 310 CMR 40.0703, an application for permit transfer shall include the following:

(a)   the certification required by 310 CMR 40.0009 from the permittee;

(b)   written consent by the transferee to the terms and conditions of the Tier I Permit;

(c)   the certification required in 310 CMR 40.0703(9)(a) by the transferee;

(d)   the transferee's compliance history, as required by 310 CMR 40.0703(9)(b); and

(e)   a statement as to why the transfer is sought.

40.0706:   Additional Application Submittal Requirements for Tier I Permit Extensions

(1)   General.

(a)   A Tier I Permit Extension Application shall be submitted to the Department at least 45 days before the date of expiration of the Tier I Permit.

(b)   No Tier I Permit expiration date shall be extended unless and until the permittee(s) has obtained a Permit Extension in accordance with 310 CMR 40.0720.

(c)   Except as provided by 310 CMR 40.0703(2), 310 CMR 40.0893 or 310 CMR 40.1067(6)(a), no person shall initiate or continue to perform Comprehensive Response Actions at a Tier I disposal site after a Tier I Permit obtained by such person has expired, unless and until such person obtains a Permit Extension in accordance with 310 CMR 40.0720.

(d)   A Tier I Permit Extension does not forgive an RP's, PRP's or Other Person's non-compliance with any provisions of 310 CMR 40.0000.  A Tier I Permit 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.

(2)   Content of Application.  In addition to the requirements in 310 CMR 40.0703, an application for a Permit Extension shall include the following:

(a)   a statement as to why the extension is sought; and

(b)   each applicant's compliance history, as required by 310 CMR 40.0703(9)(b), since the effective date of his or her permit only.

40.0707:   Additional Application Submittal Requirement for Tier 1 Permit Major Modifications

(1)   General.  An application for a Major Permit Modification shall be filed to:

(a)   upgrade a Tier IC disposal site to Tier IA or Tier IB;

(b)   upgrade a Tier IB disposal site to Tier IA;

(c)   downgrade a Tier IC disposal site to a Tier II;

(d)   downgrade a Tier IB disposal site to a Tier IC or Tier II;

(e)   downgrade a Tier IA disposal site to a Tier IB, Tier IC or Tier II; or

(f)   request a modification of any terms or conditions in a Tier I Permit, except as provided by 310 CMR 40.0720.

(2)   No Tier I Permit shall be deemed modified unless and until the permittee(s) has filed an application for a Major Permit Modification and such Modification has been approved pursuant to 310 CMR 40.0720.

(3)   Content of Application.  In addition to the requirements in 310 CMR 40.0703, an application for a Major Permit Modification shall include the following:

(a)   a description of the modification sought;

(b)   if the application is made to modify a Permit category or to reclassify a disposal site as Tier II, an LSP Tier Classification Opinion prepared in accordance with 310 CMR 40.0510(3);

(c)   if the application is made to modify permit terms or conditions, an LSP Opinion as to why the permit terms or conditions are no longer necessary or appropriate, including a report detailing any new or additional information to justify the modification(s) sought if the application is to modify the terms or conditions in a permit; and

(d)   each applicant's compliance history, as required by 310 CMR 40.0703(9)(b), since the effective date of his or her permit only.

40.0710:   Incomplete Permit Applications

An application for a Tier I Permit shall not be deemed complete if the RP, PRP or Other Person who submitted the application (the applicant):

(1)   fails to include all required information, as listed in 310 CMR 40.0703 through 40.0709, and all further information requested by the Department pursuant to 310 CMR 40.0703(11);

(2)   fails to demonstrate completion of the public notice requirements described in 310 CMR 40.0703(8);

(3)   fails to include all information required by 310 CMR 40.0000;

(4)   fails to include the applicable fee established by 310 CMR 4.00; or

(5)   fails to fill out the application correctly.

40.0720:   Approval Process for Tier I Permit Applications, Major Modifications, Transfers or Extensions and Special Project Designation Permits

( 1)   General.  310 CMR 40.0720 through 40.0729, cited collectively as 310 CMR 40.0720, together with 310 CMR 4.04, define the approval process for Tier I Permit Applications or a Modification, Transfer or Extension of a Tier I Permit.  The provisions of 310 CMR 40.0720 also define the review and approval process for a Special Project Designation Permit Application or a Special Project Designation Permit Modification, Transfer or Extension.  The Department shall consider the requirements and criteria at 310 CMR 40.0060, when making a decision to grant or deny a Special Project Designation Permit or a Modification, Transfer or Extension of a Special Project Designation Permit.

(2)   The Department shall consider the criteria in 310 CMR 40.0730(1) and 40.0731(1) and all other available information when reviewing a Tier I Permit Application or a Modification, Transfer or Extension submitted pursuant to 310 CMR 40.0700, and when making the following decisions:

(a)   to grant a Permit, Modification, Transfer or Extension;

(b)   to grant a Permit, Modification, Transfer or Extension with conditions pursuant to 310 CMR 40.0740(3)(n); or

(c)   to deny a Permit, Modification, Transfer or Extension.

(3)   Commencement of Schedule.  For purposes of 310 CMR 40.0720 and 310 CMR 4.04(2)(a), the computation of time periods shall commence on the day following the day a complete Tier I Permit Application, Major Modification, Transfer or Extension or Special Project Designation Permit Application, Modification, Transfer or Extension  is received at the appropriate regional office of the Department or on the day following the day the applicable permit application fee is received, as described in 310 CMR 40.0008, whichever occurs later.

(4)   A Tier I Permit or a Major Modification, Transfer or Extension of a Tier I Permit or Special Project Designation Permit, or Modification, Transfer or Extension of a Special Project Designation Permit shall be presumed approved without conditions 36 days from the date the complete Application was received by the Department pursuant to 310 CMR 40.0720(3), unless prior to the end of the 36 day period, the Department provides to the applicant(s) one of the following:

(a)   a decision to deny the applicant a Tier I Permit or a Major Modification, Transfer or Extension of a Tier I Permit, based upon the criteria in 310 CMR 40.0730 and 40.0731or deny the applicant a Special Project Designation Permit, or Modification, Transfer or Extension of a Special Project Designation Permit, based on the criteria in 310 CMR 40.0063(3) and (4);

(b)   a decision to grant the applicant a Tier I Permit or a Major Modification, Transfer or Extension of a Tier I Permit with conditions pursuant to 310 CMR 40.0740(3)(n), based upon the criteria in 310 CMR 40.0730, or to grant the applicant a Special Project Designation Permit, or Modification, Transfer or Extension of a Special Project Designation Permit with conditions, based on the criteria in 310 CMR 40.0063(3) and (4); or

(c)   a Notice of Extended Review indicating that because of the nature and complexity of the review, based on the criteria set forth in 310 CMR 40.0730(1) or 310 CMR 40.0063(3) and (4), whichever is applicable, the Department requires an additional 36 days from the date the Notice of Extended Review is issued by the Department to complete its review.

(5)   If the Department issues the applicant(s) a Notice of Extended Review in accordance with 310 CMR 40.0720(4)(c), the Tier I Permit or a Major Modification, Transfer or Extension of a Tier I Permit or the Special Project Designation Permit or Modification, Transfer or Extension shall be presumed approved without conditions 72 days from the date the complete Application was received by the Department pursuant to 310 CMR 40.0720(3), unless the Department provides the applicant(s) with one of the following prior to 72 days from the date the complete Application was received by the Department:

(a)   a decision to deny the applicant a Tier I Permit or a Major Modification, Transfer or Extension of a Tier I Permit, based upon the criteria in 310 CMR 40.0730 and 40.0731,or deny the applicant a Special Project Designation Permit, or Modification, Transfer or Extension of a Special Project Designation Permit, based on the criteria in 310 CMR 40.0063(3) and (4); or

(b)   a decision to grant the applicant a Tier I Permit or a Major Modification, Transfer or Extension of a Tier I Permit with conditions pursuant to 310 CMR 40.0740(3)(n), based upon the criteria in 310 CMR 40.0730, or to grant the applicant a Special Project Designation Permit, or Modification, Transfer or Extension of a Special Project Designation Permit with conditions, based on the criteria in 310 CMR 40.0063(3) and (4).

(6)   Presumptive approval of a Tier I Permit, Major Modification, Transfer or Extension or a Special Project Designation Permit, Modification, Transfer or Extension pursuant to 310 CMR 40.0720 means the RP, PRP or Other Person has approval to proceed with  Response Actions in compliance with all applicable provisions of 310 CMR 40.0000.  Such presumptive approval shall not be construed as approval by the Department of the scope or adequacy of plans or of the response actions as actually conducted, or as forgiveness of non-compliance with any provision of 310 CMR 40.0000.

(7)   Extensions of Review Schedule by Agreement. The applicant and the Department may, by written agreement, extend any schedule for timely action or individual portion thereof for a Tier I Permit application pursuant to 310 CMR 40.0720 or 310 CMR 4.00.

(8)   Tier I Permit, Transfer, Extension or Major Modification Applications Pending as of June 27, 2003.  Unless otherwise specified by the Department, Tier I Permit, Transfer, Extension or Major Modification applications pending approval as of June 27, 2003 shall be presumed approved without conditions 45 days from June 27, 2003 or 75 days from the date such application was submitted, whichever date is sooner..

40.0725:   Minor Permit Modifications

(1)   General.  An RP, PRP or Other Person  shall notify the Department in writing of any of the following changes after a Permit application has been submitted and prior to submitting a Class A or B Response Action Outcome or Downgradient Property Status for the disposal site where response actions are being conducted under the Permit:

(a)   change(s) in permittee’s name or address;

(b)   change in the LSP-of-Record;

(c)   change in the Primary Representative;

(d)   any omissions that do not materially affect the nature or complexity of the permitted response action;

(e)   the addition of one or more  RPs, PRPs, or Other Persons as permittees; and

(f)   changes of similar scope to the permit.

(2)   Notification of a Minor Permit Modification shall include the following:

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

(b)   a description of the modification sought;

(c)   an Opinion of a Licensed Site Professional stating the reasons for the modification if the modification is related to any information for which such LSP has submitted an Opinion;

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

(e)   if the application is to add one or more permittees, the following shall be included:

1.   the certification required by 310 CMR 40.0009 from the new applicant(s);

2.   written consent by the new applicant(s) to the terms and conditions of the Tier I Permit;

3.   the certification required by 310 CMR  40.0703(9)(a) by the new applicant(s);

4.   the compliance history of the new applicant, as required by 310 CMR 40.0703(9)(b); and

5.   written consent from the existing permittee(s) or the Primary Representative, whichever is applicable, to the new applicant(s) joining the Tier I Permit.

(3)   Minor permit modifications shall not be subject to processing requirements under 310 CMR 40.0720 or 310 CMR 4.00.

40.0730:   Department Review of Tier I Permit Applications, Major Modifications, Transfers, or Extensions

(1)   In reviewing a Tier I Permit Application or a Modification, Transfer, or Extension of a Tier I Permit, the Department shall consider the following:

(a)   the existence, source, nature, and extent of a  disposal site;

(b)   the nature and extent of danger to health, safety, public welfare and the environment posed by the disposal site;

(c)   the magnitude and complexity of the actions necessary to assess, contain, or remove the oil and/or hazardous material in question;

(d)   the extent to which there are legally enforceable standardized methods and criteria available for response actions;

(e)   the extent to which the Department is persuaded that the applicant has the ability and willingness to perform necessary response actions;

(f)   the applicant's compliance history with Departmental and other applicable regulations that is material to the disposal site;

(g)   the extent to which Departmental oversight is necessary to ensure compliance with M.G.L. c. 21E and 310 CMR 40.0000;

(h)   any permit conditions developed pursuant to 310 CMR 40.0740(3)(n) to which the applicant has consented; and

(i)   any other factor the Department deems relevant to the decision.

(2)   The Department shall consider the criteria in 310 CMR 40.0730(1) when reclassifying a Tier Classified disposal site pursuant to 310 CMR 40.0583.

40.0731:   Criteria For Denials of Tier I Permits, Major Modifications, Transfers or Extensions

(1)   The Department may deny a Tier I Permit, Modification, Transfer or Extension if it determines that:

(a)   the applicant has submitted information in the application for a Tier I Permit, Modification, Transfer or Extension that he or she knew or reasonably should have known was false or misleading;

(b)   the application is not completed by an applicable deadline;

(c)   the Department is not persuaded that the applicant is able or willing to perform necessary response actions in accordance with M.G.L. c. 21E, 310 CMR 40.0000 and other applicable laws;

(d)   the Department is not persuaded that the applicant can properly conduct response actions pursuant to the criteria in 310 CMR 40.0730, after evaluation of information in the Tier Classification Submittal, the  application for a Tier I Permit, Modification, Transfer or Extension, and other information material to the disposal site which is available to the Department;

(e)   a valid Tier I Permit is in effect for such disposal site or for a portion of such disposal site; or

(f)   the Department intends to undertake or arrange for the performance of necessary response actions at the disposal site.

40.0740:   Conditions Applicable to all Tier I Permits

(1)   A permittee performing a response action pursuant to a Tier I Permit, Modification, Transfer or Extension shall comply at all times with M.G.L. c. 21E, 310 CMR 40.0000, the terms and conditions of the permit and any other applicable federal, state or local laws.

(2)   In every proceeding, the burden shall be on the permittee to demonstrate compliance with the terms and conditions of a Tier I Permit, Transfer, Modification or Extension at all times.

(3)   All Tier I Permits, Modifications, Transfers or Extensions shall be conditioned on at least the following:

(a)   compliance by the RP, PRP, or Other Person undertaking response actions at a disposal site under a Tier I Permit, Modification, Transfer or Extension with the applicable submittal and response action deadlines set forth at 310 CMR 40.0000;

(b)   notification in writing to the Department:

1.   as required in 310 CMR 40.0500;

2.   upon gaining knowledge of any technical, financial or legal inability to perform any necessary response action, in accordance with 310 CMR 40.0172;

3.   upon a decision by a permittee who is performing response actions as an Other Person to not proceed as required by the permit pursuant to 310 CMR 40.0170(10); and

4.   of any change in the LSP-of-Record for the disposal site no later than ten days after the effective date of such change through the filing of a Minor Permit Modification by the permittee in accordance with 310 CMR 40.0725;

(c)   compliance with:

1.   all applicable submittal requirements, including but not limited to, scopes of work, Status Reports, Completion Statements, Phase Reports, and RAOs;

2.   all requirements for record keeping and document retention including, but not limited to, 310 CMR 40.0014, 310 CMR 40.0022 and 310 CMR 40.0023;

3.   the Notification Regulations, 310 CMR 40.0300, in the event of discovery of a new release located at the disposal site, threat of release or Imminent Hazard;

4.   the management procedures for excavated soils and wastes and requirements for remedial air emissions set forth in 310 CMR 40.0030 and 310 CMR 40.0040; and

5.   all public involvement activities required by 310 CMR 40.1400 through 40.1406;

(d)   inclusion of the Release Tracking Number(s) and the permit number on documents submitted to the Department with respect to the disposal site;

(e)   certification of documents submitted to the Department as required by 310 CMR 40.0009;

(f)   evaluation of the need to perform Immediate Response Actions in accordance with 310 CMR 40.0400 as new or additional information about the disposal site is obtained;

(g)   modification or cessation of any response action as necessary to maintain compliance with any permit condition or to prevent an actual or potential threat to health, safety, public welfare, or the environment;

(h)   notification, orally or in writing, to the Department within 72 hours of obtaining knowledge of the need to modify or cease any response actions for the reasons in 310 CMR 40.0740(3)(g); provided that any such oral notification shall be confirmed by the permittee in writing within 60 days of such oral notice and any written notice shall include a Status Report prepared by an LSP; and timely remediation of any adverse impacts to health, safety, public welfare or the environment that result from the performance of response actions;

(i)   at disposal sites where groundwater investigation is necessary, delineation of the vertical and horizontal extent of contamination, identification and confirmation of groundwater flow directions, identification of groundwater migration pathways including, but not limited to, the identification of possible partitioning of dissolved volatile organic compounds at the water table interface which may lead to vapor transport into subsurface structures, homes or other occupied or unoccupied buildings, and monitoring of groundwater wells, discharges and/or other monitoring points in a manner which provides for the timely development of representative information about conditions and changes in conditions at the disposal site;

(j)   acquisition of all required federal, state and local permits;

(k)   proper operation and maintenance of all treatment, storage, abatement or control systems and of all equipment required to continue or complete response actions;

(l)   authorization for personnel and authorized agents of the Department to enter, at reasonable times and  upon the presentation of credentials, any premises owned or controlled by the permittee for the purpose of investigating, sampling, or inspecting any records, conditions, equipment, practice or property relating to response actions at the disposal site, or protecting health, safety, public welfare, or the environment;

(m)   notification upon a change of the Primary Representative as required by 310 CMR 40.0703(7); and

(n)   any other conditions necessary to ensure the appropriate level of Departmental oversight of response actions.

(4)   A Tier I Permit does not grant any property rights or exclusive privileges, nor does it authorize any injury to private property or invasion of property rights.

(5)   A Tier I Permit Extension obtained under 310 CMR 40.0706 and 310 CMR 40.0720 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 I Permit 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.

40.0750:   Tier I Permit Effective Date

(1)   A Tier I Permit shall become effective:

(a)   45 days from the date the complete Tier I Permit application is received by the Department, if the Permit is presumptively approved without conditions pursuant to 310 CMR 40.0720(4);

(b)   on the date the Department issues its written approval of the Tier I Permit, if approved with conditions;

(c)   45 days from the date the Department issues a Notice of Extended Review, if the Department issues the applicant(s) a Notice of Extended Review in accordance with 310 CMR 40.0720(4)(c) and the Permit is presumptively approved without conditions pursuant to 310 CMR 40.0720(5); or

(d)   on the date the Department issues its written approval of the Permit, if the applicant and the Department by written agreement extend any schedule for timely action or individual portion thereof for the review of a Tier I Permit application pursuant to 310 CMR 40.0720(7) or 310 CMR 4.00.

40.0751:   Duration of Tier I Permits

(1)   A Tier I Permit shall be effective for five years from the effective date of the initial Permit, unless otherwise established by the Department.

(2)   Any modification or transfer of a permit shall be effective for the remaining duration of the permit being transferred or modified.

(3)   Unless otherwise specified by the Department, a Tier I Permit Extension shall be effective for a period of two years beyond the effective date of the Tier I Permit Extension or two years from the expiration date of the initial Tier I Permit or most recent Tier I Permit Extension, whichever date is later.

40.0760:   Tier I Permit Suspension and Revocation

(1)   The Department may suspend or revoke any permit for cause including, but not limited to, the following:

(a)   any violation of M.G.L. c. 21E, 310 CMR 40.0000, or permit condition, or other applicable law or regulation;

(b)   the submittal of false or misleading information by the permittee; or

(c)   for nonpayment of annual compliance assurance fees required pursuant to 310 CMR 4.00.

(2)   Prior to the suspension or revocation of a Tier I permit for cause, the Department shall issue a notice of intent to suspend or revoke a permit which describes the basis for the proposed suspension or revocation and informs the person to whom it is issued of his or her right to request an adjudicatory hearing pursuant to M.G.L. c. 30A.

(3)   Notwithstanding 310 CMR 40.0760(2), suspension or revocation of a permit because of  nonpayment of annual compliance assurance fees shall be processed in accordance with 310 CMR 4.03(7).

40.0770:   Right to Request An Adjudicatory Hearing

(1)   Any person who is aggrieved by a decision of the Department with respect to any Tier I Permit application may request an adjudicatory hearing before the Department in accordance with 310 CMR 40.0050 and 40.0770(3) if:

(a)   the Department issues a permit for a  category higher than that stated in the LSP Tier Classification Opinion; or

(b)   the Department denies the applicant a permit, unless the Department notifies the applicant in the permit decision that the Department intends to undertake or arrange for the performance of necessary response actions at the disposal site; or

(c)   the Department imposes conditions pursuant to 310 CMR 40.0740(3)(n) without the applicant's consent.

(2)   A person shall be deemed to have waived his or her right to an adjudicatory hearing if he or she failed to raise the matter of his or her complaint at the appropriate point during the processing of the application in accordance with 310 CMR 40.0720, provided that a matter may be raised upon a showing that it is material and that it was not reasonably possible with due diligence to have been raised during the processing of the application.

(3)   A request for an adjudicatory hearing pursuant to 310 CMR 40.0770 shall:

(a)   comply with 310 CMR 40.0050 and 310 CMR 1.00;

(b)   include a copy of the permit decision; and

(c)   state the reason(s) the permit decision does not comply with 310 CMR 40.0000;

(4)   The adjudicatory hearing shall be limited to the issue of whether the Department's permit decision is in accordance with the criteria set forth in 310 CMR 40.0730 or 310 CMR 40.0731.

(5)   When a request for an adjudicatory hearing is made following receipt of a notice of intent to suspend or revoke a Tier I Permit for cause, allegations made at the adjudicatory hearing shall be limited to whether the Department has cause to suspend or revoke the permit.