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40.0800:   Comprehensive Response Actions

 

      310 CMR 40.0801 through 40.0899, cited collectively as 310 CMR 40.0800, contain the requirements and procedures for conducting Comprehensive Response Actions at disposal sites.

 

40.0801:   Applicability 

      The procedures, requirements, and standards set forth in 310 CMR 40.0800 apply to  all disposal sites for which a Phase I Initial Site Investigation Report has been prepared in accordance with the provisions of 310 CMR 40.0480, and where additional response actions are necessary to assess the disposal site and/or evaluate and implement Comprehensive Remedial Actions to achieve a Permanent or Temporary Solution under 310 CMR 40.1000.

 

40.0810:   General Provisions for Comprehensive Response Actions

 

(1)   Comprehensive Response Actions shall be performed in sequential phases.  The phases of Comprehensive Response Actions  consist of:

(a)   Phase II -  Comprehensive Site Assessment;

(b)   Phase III - Identification and Selection of Comprehensive Remedial Action Alternatives;

(c)   Phase IV - Implementation of the Selected Remedial Action Alternative; and

(d)   Phase V - Operation, Maintenance and/or Monitoring

 

(2)   The results of each phase of Comprehensive Response Actions shall be documented in one or more reports, and submitted to the Department in a manner specified in 310 CMR 40.0800 and within the applicable deadlines specified in 310 CMR 40.0550 and 40.0560.  Where appropriate, Comprehensive Response Action reports may be combined and submitted to the Department simultaneously.

 

(3)   Each phase of Comprehensive Response Actions shall build upon the results of previous work, continuing until a Permanent or Temporary Solution as described in 310 CMR 40.1000 is reached for the disposal site.  The Department shall not recognize receipt of a Completion Statement for a Phase unless the Completion Statement for the previous Phase has been submitted.

 

(4)   RPs, PRPs and Other Persons conducting Comprehensive Response Actions at disposal sites shall comply with all applicable provisions of 310 CMR 40.0800 and this Contingency Plan.

 

(5)   RPs, PRPs and Other Persons conducting Comprehensive Response Actions shall engage or employ the services of a Licensed Site Professional.

 

(6)   The scope and level of detail of response actions taken under 310 CMR 40.0800 shall be commensurate with the nature and complexity of the specific disposal site.  The investigation process described in 310 CMR 40.0800 is intended to allow for varying levels of effort from disposal site to disposal site to avoid the collection of unnecessary information and unwarranted steps that could delay remedial actions.  In all cases, the scope and level of detail of response actions taken under 310 CMR 40.0800 shall be sufficient to ensure that the applicable requirements and performance standards of these regulations are met, and that the response actions are conducted in a manner consistent with the Response Action Performance Standard as described in 310 CMR 40.0191.

 

(7)   Technical justification, as described in 310 CMR 40.0193, may be provided to limit or forego one or more of the assessment or evaluation elements of 310 CMR 40.0800.  Technical justification may not be used to forgo procedural requirements, such as the submission of reports, notices or documents required as part of Comprehensive Response Actions under 310 CMR 40.0800.  When technical justification is used to forgo or limit an assessment or evaluation element, a description of the site-specific conditions and characteristics that make the requirement unwarranted and any documentation necessary to support any such justification shall be provided in the applicable submittal to the Department.

 

(8)   If at any time during the conduct of response actions under 310 CMR 40.0800 an Imminent Hazard, sudden release, or other time-critical release or site condition is identified at a disposal site, as described in 310 CMR 40.0412, Immediate Response Actions shall be performed as set forth in 310 CMR 40.0400.

 

(9)   Comprehensive Response Actions shall be conducted in a manner protective of health, safety, public welfare, and the environment, and in accordance with the Health and Safety provisions of 310 CMR 40.0018.

 

(10)   Nothing in 310 CMR 40.0800 shall limit the ability of the Department to initiate, oversee, or order the performance of any response action deemed necessary by the Department to protect health, safety, public welfare, or the environment or impose additional requirements which are consistent with the purposes on M.G.L. c. 21E or 310 CMR 40.0000.

 

(11)   Notwithstanding any provision to the contrary, the Department may at any time require an RP, PRP or Other Person undertaking Comprehensive Response Actions pursuant to 310 CMR 40.0800 to obtain prior Departmental approval of one or more of 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.

 

40.0830:   Phase II - Comprehensive Site Assessment

 

      310 CMR 40.0831 through 40.0849, cited collectively as 310 CMR 40.0830, contain the requirements and procedures for conducting Phase II - Comprehensive Site Assessments at disposal sites.

 

40.0832:   General Provisions

 

(1)   A Scope of Work, as described in 310 CMR 40.0834, shall be developed and submitted to the Department in accordance with 310 CMR 40.0510 prior to the initiation of Comprehensive Site Assessment activities at any disposal site that has been classified as Tier I or Tier II under the provisions of 310 CMR 40.0500, unless the Phase II fieldwork has been implemented prior to Tier Classification.

 

(2)   A Phase II Report, as described in 310 CMR 40.0835, shall be prepared to document information obtained as a result of Comprehensive Site Assessment activities and support conclusions and Opinions based upon the findings of the assessment.  The Phase II Report shall reference or incorporate elements of the Phase I Report, as appropriate, and may be combined with the Phase III Report described in 310 CMR 40.0850.

 

40.0833:   Performance Standards

 

(1)   A Phase II - Comprehensive Site Assessment shall collect, develop and evaluate sufficient information to support conclusions and Opinions regarding:

(a)   the source, nature, extent, and potential impacts of releases of oil and/or hazardous material;

(b)   the risk of harm posed by the disposal site to health, safety, public welfare and the environment; and

(c)   the need to conduct remedial actions at the disposal site.

 

(2)   The Phase II Report shall thoroughly document, evaluate and discuss the findings and conclusions of the Phase II Comprehensive Site Assessment, and where applicable, provide the basis for identifying and evaluating remedial action alternatives.

 

40.0834:   Conceptual Phase II Scope of Work

 

(1)   Except as otherwise specified by the Department, Department approval of the conceptual Phase II Scope of Work shall not be required.

 

(2)   Except as otherwise specified by the Department, the conceptual Phase II Scope of Work shall provide:

(a)   the general scope and nature of investigative and sampling programs that will be undertaken to characterize the source, extent, and migration pathways of oil and/or hazardous material, and the risk of harm posed to health, safety, public welfare or the environment, based upon the initial Conceptual Site Model developed in Phase I;

(b)   the name and license number of the LSP engaged or employed by the person conducting the Comprehensive Response Action; and

(c)   a projected schedule for implementation of the Phase II - Comprehensive Site Assessment.

 

40.0835:   Phase II Report

 

(1)   A Phase II Report shall be submitted to the Department at the conclusion of Comprehensive Site Assessment activities pursuant to the applicable deadlines set forth in 310 CMR 40.0550 or 40.0560 or at Interim Deadlines specified by the Department.

 

(2)   A Phase II Report shall present, contain, or append relevant information, data, findings, and Opinions related to the Comprehensive Site Assessment of the disposal site.

 

(3)   A Phase II Report shall set forth in narrative and, to the extent possible, in maps, graphs, and tables, the disposal site Conceptual Site Model, approach, methods and results of the Phase II - Comprehensive Site Assessment.

 

(4)   The information and assessment findings outlined in 310 CMR 40.0835(4) shall be provided in the Phase II Report.  Depending upon specific site and release conditions, it may be necessary to provide additional information to adequately characterize the disposal site, consistent with the Response Action Performance Standard described in 310 CMR 40.0191, or it may be appropriate to forgo particular assessment or information gathering elements and provide Technical Justification as described in 310 CMR 40.0193.

(a)   Disposal Site Name, Location and Locus Map, updated, if necessary, from what was provided in the Phase I Report;

(b)   Detailed Disposal Site Map(s), updated, as necessary, from the base map(s) provided in the Phase I Report, and depicting all investigatory and sampling points relevant to the Comprehensive Site Assessment, the boundaries of the disposal site in plan view, and, as appropriate, the vertical extent of contamination at the disposal site;

(c)   Disposal Site History, updated, supplemented, or modified if necessary from information provided in the Phase I Report;

(d)   Site Hydrogeological Characteristics, including details of subsurface investigations conducted at the disposal site, together with a comprehensive description and depiction of site hydrogeologic conditions, including, without limitation:

1.   a description of all relevant geologic, hydrologic, geophysical, and other subsurface investigations and assessments conducted at the disposal site;

2.   documentation related to borings, well construction, and well development, including copies of well drilling logs, within or appended to the Phase II Report; and

3.   a detailed characterization of geologic and hydrogeologic conditions at the disposal site, including:

a.   groundwater potentiometric surface(s), gradients, flow rates, and flow direction(s);

b.   soil type(s), stratigraphy, and permeability;

c.   where appropriate, bedrock type and

characteristics, depths and contours; and

d.   an evaluation and description of the potential for flooding;

(e)   Environmental Fate and Transport of Oil and/or Hazardous Material, including, as appropriate:

1.   an evaluation of the environmental fate and transport characteristics of the oil and/or hazardous material identified at the disposal site, including, without limitation, mobility, stability, volatility, persistence and bioaccumulative potential of the oil and/or hazardous material;

2.   identification and characterization of existing and potential migration pathways of the oil and/or hazardous material at and from the disposal site, including, as appropriate, air, soil, groundwater, soil gas, preferential migration pathways such as subsurface utility lines and other subsurface void spaces, surface water, sediment, and food chain pathways; and

3.   an evaluation of the potential for soil, groundwater, or NAPL  to be a source of vapors of oil and/or hazardous material to indoor air of occupied structures as described in 310 CMR 40.0900;

(f)   Nature and Extent of Contamination, including a characterization of the nature, and vertical and horizontal extent of oil and/or hazardous material in the environment, including any and all source(s), the presence, distribution, and stability of any NAPL, tabulation of analytical testing results, and, where appropriate, a characterization of background concentrations of oil and/or hazardous material at the disposal site;

(g)   Exposure Assessment, including the identification and characterization of all potential human and environmental receptors that could be impacted by oil and/or hazardous material at or migrating from the disposal site, and, as appropriate, the quantification of exposure of oil and/or hazardous material to these receptors, under current and reasonably foreseeable site conditions, as described in 310 CMR 40.0900;

(h)   Risk Characterization, as set forth in 310 CMR 40.0900, for all appropriate human and environmental receptors identified at and near the disposal site; and

(i)   Conclusions, including a summary of the Phase II Comprehensive Site Assessment findings.  The Conclusions section shall provide the disposal site Conceptual Site Model, the reasoning and results used to support the findings, and indicate and support the outcome of the Phase II Investigation as described in 310 CMR 40.0840.

 

40.0836:   Phase II Completion Statement

 

(1)   A Phase II Completion Statement form, established by the Department for such purposes, shall be appended to and submitted with the final Phase II Report to the Department.

 

(2)   In cases where the Phase II Report is combined with other Comprehensive Response Action Reports, a Completion Statement form for the combined Reports shall be appended to the documents and submitted to the Department.

 

(3)   A Completion Statement submitted with a Phase II Report shall include the following:

(a)   an Opinion from a Licensed Site Professional which states that the Phase II Comprehensive Site Assessment:

1.   conforms with applicable Phase II requirements and any approval conditions specified by the Department;

2.   meets the Phase II performance standards;

3.   does not disclose new or additional information which may affect the site’s Tier Classification or permit category without the concurrent filing of an application for a Major Permit Modification; and

4.   specifies the Phase II outcome under 310 CMR 40.0840.

(b)   the certification of the submittal required by 310 CMR 40.0009.

 

40.0839:   Public Involvement

 

(1)   Public Involvement Activities shall be conducted in accordance with 310 CMR 40.1400 through 40.1406.  Public Involvement Activities relevant to Phase II specifically include 310 CMR 40.1403(3)(e), and may include, but are not limited to those activities set forth at 40.1403(3)(a) and (f) and 310 CMR 40.1406.

 

(2)   If the disposal site where the Phase II is conducted is a Public Involvement Plan site, then a Public Involvement Plan that is consistent with 310 CMR 40.1405 shall be implemented.

 

40.0840:   Possible Outcomes

 

(1)   The following outcomes are possible upon completion of a Phase II Comprehensive Site Assessment:

(a)   Comprehensive Remedial Actions are necessary at the site to achieve a Permanent or Temporary Solution as described in 310 CMR 40.1000.  A Phase III study for the identification, evaluation and selection of Comprehensive Remedial Action Alternatives as described in 310 CMR 40.0850 is necessary to select a remedial action alternative; or

(b)   the requirements of a Permanent Solution under 310 CMR 40.1000 have been met, and a Permanent Solution Statement supported by information provided in the Phase II report shall be submitted to the Department.

 

40.0850:   Phase III - Identification, Evaluation and Selection of Comprehensive Remedial Action

                Alternatives

 

      310 CMR 40.0851 through 40.0869, cited collectively as 310 CMR 40.0850, contain the requirements and procedures for conducting Phase III Comprehensive Response Actions at disposal sites.

 

40.0852:   General Provisions

 

(1)   A Phase III evaluation shall be conducted for any disposal site for which a Phase II Comprehensive Site Assessment has been completed and a Permanent Solution in accordance with 310 CMR 40.1000 has not yet been achieved.

 

(2)   A Phase III evaluation shall result in the selection of a remedial action alternative which is a likely Permanent Solution, except where it is demonstrated pursuant to 310 CMR 40.0850 that a Permanent Solution is not feasible or that the implementation of a Temporary Solution would be more cost-effective and timely than the implementation of a feasible Permanent Solution.

 

(3)   Except for any Temporary Solution achieved after providing a Downgradient Property Status Submittal to the Department in accordance with 310 CMR 40.0180, a Phase III evaluation shall be conducted  before any Temporary Solution pursuant to 310 CMR 40.1000 may be achieved at a disposal site. 

 

(4)   The feasibility of achieving or approaching background levels of oil and hazardous material shall be evaluated in accordance with 310 CMR 40.0860 for all disposal sites where remedial actions are or have been taken to achieve a Permanent Solution and background levels are not achieved.

 

(5)   The results and conclusions of the Phase III evaluation shall be documented in a Remedial Action Plan, as described in 310 CMR 40.0861.  Where appropriate, the Remedial Action Plan may be provided in or appended to the Phase II Comprehensive Site Assessment Report described in 310 CMR 40.0835.

 

40.0853:   Performance Standards

 

(1)   A Phase III evaluation shall result in:

(a)   the identification and evaluation of remedial action alternatives which are reasonably likely to achieve a level of No Significant Risk considering the oil and hazardous material present, media contaminated, and site characteristics; and

(b)   the recommendation of a remedial action alternative that is a Permanent or Temporary Solution, where a Permanent Solution includes measures that reduce, to the extent feasible, the concentrations of oil and hazardous material in the environment to levels that achieve or approach background. 

 

(2)   A Phase III Remedial Action Plan shall describe and document the information, reasoning and results used to identify and evaluate remedial action alternatives in sufficient detail to support the selection of the proposed remedial action alternative.

 

40.0855:   Identification and Evaluation of Remedial Action Alternatives

 

(1)   An identification and evaluation of remedial action alternatives shall be undertaken for all disposal sites where a Phase III evaluation is required.

 

(2)   The identification and evaluation of remedial action alternatives shall include:

(a)   an initial screening to identify those remedial action alternatives that are reasonably likely to be feasible and achieve a level of No Significant Risk; and, where necessary

(b)   a detailed evaluation of the remedial action alternatives identified by the initial screening to ascertain which alternatives will meet the performance standards and requirements set forth in 310 CMR 40.0850, 40.0900 and 40.1000, and whether these alternatives constitute Permanent or Temporary Solutions.

 

(3)   The identification and evaluation of remedial action alternatives:

(a)   shall be based on information gathered and analyzed as part of previous assessment and remedial actions, and during the Phase III evaluation;

(b)   may involve bench-scale tests or pilot studies as part of an evaluation of the effectiveness of an alternative; and

(c)   may incorporate innovative technologies where appropriate.

 

40.0856:   Initial Screening of Likely Remedial Action Alternatives

 

(1)   An initial screening of remedial technologies shall be conducted to identify remedial action alternatives for further evaluation which are reasonably likely to be feasible, based on the oil and hazardous material present, media contaminated, and site characteristics.  For the purposes of 310 CMR 40.0856, remedial action alternatives are reasonably likely to be feasible if:

(a)   the technologies to be employed by the alternative are reasonably likely to achieve a Permanent or Temporary Solution; and

(b)   individuals with the expertise needed to effectively implement available solutions would be available, regardless of arrangements for securing their services.

 

40.0857:   Detailed Evaluation of Remedial Action Alternatives

 

(1)   Except as provided in 310 CMR 40.0857(2), a detailed evaluation of the remedial action alternatives identified by the initial screening described in 310 CMR 40.0856 shall be conducted to provide the basis for the selection of the remedial action alternative.  The detailed evaluation shall evaluate and compare different remedial alternatives using the criteria described in 310 CMR 40.0858.

 

(2)   A detailed evaluation is not required in those cases where a remedial action alternative identified during the initial screening:

(a)   is proven to be effective in remediating the types of oil and hazardous material present at the disposal site, based upon experience gained at other disposal sites with similar site and contaminant conditions;

(b)   results in the reuse, recycling, destruction, detoxification, treatment or any combination thereof of the oil and hazardous material present at the disposal site;

(c)   can be implemented in a manner that will not pose a significant risk of harm to health, safety, public welfare or the environment, as described in 310 CMR 40.0900; and

(d)   is likely to result in the reduction and/or control of oil and/or hazardous material at the disposal site to a degree and in a manner such that the requirements of a Permanent Solution as set forth in 310 CMR 40.1000 will be met.

 

40.0858:   Detailed Evaluation Criteria

 

      Except as provided in 310 CMR 40.0857(2), the remedial action alternatives identified by the initial screening shall be evaluated using the following criteria: 

 

(1)   The comparative effectiveness of the alternatives in terms of:

(a)   achieving a Permanent or Temporary Solution under 310 CMR 40.1000;

(b)   reusing, recycling, destroying, detoxifying, or treating oil and hazardous material at the disposal site; and

(c)   reducing levels of untreated oil and hazardous material at the site to concentrations that achieve or approach background.

 

(2)   The comparative short-term and long-term reliability of the alternatives, including:

(a)   the degree of certainty that the alternative will be successful; and

(b)   the effectiveness of any measures required to manage residues or remaining wastes or control emissions or discharges to the environment.

 

(3)   The comparative difficulty in implementing each alternative in terms of:

(a)   technical complexity of the alternative;

(b)   where applicable, the integration of the alternative with existing facility operations and other current or potential remedial actions;

(c)   any necessary monitoring, operations, maintenance or site access requirements or limitations;

(d)   the availability of necessary services, materials, equipment, or specialists;

(e)   the availability, capacity and location of necessary off-site treatment, storage and disposal facilities; and

(f)   whether the alternative meets regulatory requirements for any likely approvals, permits or licenses required by the Department, or other state, federal or local agencies.

 

(4)   The comparative costs of the alternatives, including:

(a)   costs of implementing the alternative, including without limitation: design, construction, equipment, site preparation, labor, permits, disposal, operation, maintenance and monitoring costs;

(b)   costs of environmental restoration, potential damages to natural resources, including consideration of impacts to surface waters, wetlands, wildlife, fish and shellfish habitat; and

(c)   the relative total consumption of energy resources in the implementation and operation of the alternatives, and externalities associated with the use of those resources, including greenhouse gases and other air pollutants.   

 

(5)   The comparative risks of the alternatives including without limitation:

(a)   the short-term on-site and off-site risks posed during implementation of the alternative associated with any excavation, transport, disposal, containment, construction, operation or maintenance activities, or discharges to the environment from remedial systems;

(b)   on-site and off-site risks posed over the period of time required for the alternative to attain applicable remedial standards, including risks associated with ongoing transport, disposal, containment, operation or maintenance activities, or discharges from remedial systems; and

(c)   the potential risk of harm to health, safety, public welfare or the environment posed to human or environmental receptors by any oil and/or hazardous material remaining at the disposal site after the completion of the remedial action.

 

(6)   The comparative benefits of the alternatives including without limitation:

(a)   the benefit of restoring natural resources;

(b)   providing for the productive reuse of the site;

(c)   the avoided costs of relocating people,

businesses, or providing alternative water supplies; and

(d)   the avoided lost value of the site.

 

(7)   The comparative timeliness of the alternatives in terms of eliminating any uncontrolled sources of oil and/or hazardous material and achieving of a level of No Significant Risk as described in 310 CMR 40.0900.

 

(8)   The relative effect of the alternatives upon non-pecuniary interests, such as aesthetic values.

 

40.0859:   Selection of Remedial Action Alternative

 

(1)   Except as provided in 310 CMR 40.0857(2), remedial action alternatives shall be selected based on the detailed evaluation criteria contained in 310 CMR 40.0858 and in compliance with the provisions set forth in 310 CMR 40.0850, 40.0900 and 40.1000.

 

(2)   A remedial action alternative which is a Permanent Solution shall be selected if a feasible Permanent Solution has been identified and its implementation is found to be more cost-effective and timely than would be the implementation of a Temporary Solution.  If there is no such feasible Permanent Solution, a Temporary Solution for the elimination of substantial hazard shall be selected and implemented and a plan shall be prepared pursuant to 310 40.0861(2)(h) for the identification and development of a Permanent Solution.

 

(3)   Any selected Permanent Solution shall, to the extent feasible, reduce the concentrations of oil and hazardous material in the environment to levels that achieve or approach background.

 

(4)   An Engineered Barrier, cap or other remedial action alternative that relies upon on-site disposal, isolation, or containment of oil and/or hazardous material shall not be selected unless and until a Phase III evaluation performed pursuant to the provisions of 310 CMR 40.0850 demonstrates the lack of a feasible alternative.

 

40.0860:   Feasibility Evaluations

 

(1)   The criteria described in 310 CMR 40.0860 apply to:

(a)   evaluating the feasibility of implementing a Permanent Solution;

(b)   evaluating the feasibility of reducing the concentrations of oil and hazardous material in the environment to levels that achieve or approach Background;

(c)   evaluating the feasibility of reducing the concentrations of oil and hazardous material in soil at a disposal site to levels at or below applicable soil Upper Concentrations Limits;

(d)   evaluating the feasibility of eliminating, preventing or mitigating Critical Exposure Pathway(s); and

(e)   evaluating the feasibility of eliminating or controlling each Source of OHM Contamination, controlling migration of OHM, and removing NAPL at a disposal site in support of a Permanent or Temporary Solution pursuant to 310 CMR 40.1003(5) through (7), respectively.

 

(2)   An evaluation of the feasibility of implementing a Permanent Solution shall be performed in all cases where the selected Comprehensive Remedial Alternative will achieve a Temporary Solution.

 

(3)   An evaluation of the feasibility of reducing the concentrations of oil and hazardous material in the environment at the disposal site or a portion of the disposal site to levels that achieve or approach Background shall be conducted in all cases where the Comprehensive Remedial Alternative is selected to achieve a Permanent Solution, unless the Permanent Solution selected is designed to achieve and achieves Background.

 

(4)   An evaluation of the feasibility of reducing the concentrations of oil and hazardous material in soil at the disposal site to levels at or below the applicable soil Upper Concentration Limits shall be conducted before a Comprehensive Remedial Alternative is selected as a Permanent Solution that would leave oil and/or hazardous material in soil at concentrations above the soil Upper Concentration Limits at a depth greater than 15 feet below the ground surface or beneath an engineered barrier, as that term is defined in 310 CMR 40.0996.

 

(5)   A Comprehensive Remedial Alternative that would achieve a Permanent Solution and other response actions listed in 310 CMR 40.0860(1) shall be considered feasible unless:

(a)   the alternative is not technologically feasible, as specified in 310 CMR 40.0860(6);

(b)   the costs of conducting, or the risks resulting from the alternative would not be justified by the benefits, considering such factors as potential damage to human health or the environment, cost of environmental restoration, long term operation and maintenance costs, and non-pecuniary values as determined by the benefit-cost analysis in 310 CMR 40.0860(7);

(c)   individuals with the expertise needed to effectively implement the alternative would not be available, regardless of arrangements for securing their services; 

(d)   the alternative would necessitate land disposal other than at the site itself and no off-site facility is available in the Commonwealth or in other states that is in full compliance with all applicable federal and state regulatory requirements; or

(e)   an alternative is selected for a portion of a disposal site for which the source of the oil and/or hazardous material is not located thereon, and the elimination or control of such source cannot currently be achieved by the party conducting the response actions at that portion of the disposal site.  In such instances, a Temporary Solution shall be implemented for that portion of the disposal site to which the selected alternative applies.

 

(6)   Technological Feasibility.  A Comprehensive Remedial Alternative and other response actions listed in 310 CMR 40.0860(1) shall be considered technologically feasible unless:

(a)   existing technology or reasonable modifications of existing technology cannot remediate the oil and hazardous material present at the disposal site to the extent necessary to attain a level of No Significant Risk or, when required to be considered, to levels that approach or achieve Background;

(b)   the reliability of the identified alternative has not been sufficiently proven at other sites or through pilot tests and a substantial uncertainty exists as to whether it will effectively reduce risk; or

(c)   the identified alternative cannot comply with or be modified to comply with applicable regulatory requirements.

 

(7)   Benefit-cost Analysis.  The benefits of implementing Comprehensive Remedial Alternatives to achieve a Permanent Solution or Temporary Solution or of implementing other response actions listed in 310 CMR 40.0860(1) shall justify the related costs unless:

(a)   the incremental cost of conducting the Comprehensive Remedial Alternative or other response action is substantial and disproportionate to the incremental benefit of risk reduction, environmental restoration, and monetary and non-pecuniary values;

(b)   the risk of harm to health, safety, public welfare or the environment posed by the implementation of the alternative cannot be adequately controlled; or

(c)   the alternative would destroy more than 5000 square feet of wetlands or wildlife habitat, or would otherwise result in a substantial deleterious impact to the environment and:

1.   other feasible Temporary or Permanent Solutions exist;

2.   the oil and/or hazardous materials, if any, that have come to be located in such resources do not bio-accumulate and are not likely to migrate; and

3.   the damage to such resources resulting from the implementation of the alternative would be permanent and irreparable.

 

40.0861:   Remedial Action Plan

 

(1)   The results of a Phase III evaluation shall be documented in a Remedial Action Plan.  The Remedial Action Plan shall support the selection of the Comprehensive Remedial Alternative by providing information of sufficient detail on the process by which the recommended Comprehensive Remedial  Alternative was developed and evaluated.

 

(2)   A Remedial Action Plan shall contain:

(a)   a description of all remedial  alternatives initially identified and the results of the initial screening;

(b)   where a detailed evaluation is required, a discussion of how the remedial alternatives remaining after initial screening compared with respect to each of the detailed criteria described in 310 CMR 40.0858, and how the criteria were weighted in the evaluation;

(c)   justification for the selection of the proposed Comprehensive Remedial Alternative with respect to its anticipated effectiveness and relative to all other evaluated alternatives, including a discussion of the results of any bench-scale tests or pilot studies performed as part of an evaluation of the effectiveness of an alternative;

(d)   where required, the results of the evaluation under 310 CMR 40.0860 of whether the implementation of a Permanent or Temporary Solution is feasible;

(e)   if a Permanent Solution is selected as the Comprehensive Remedial  Alternative, a discussion of how the alternative is likely to achieve a level of No Significant Risk and the projected timeframe, based on available information, for meeting the requirements for a Permanent Solution as specified in 310 CMR 40.1000;

(f)   if a Temporary Solution is selected as the Comprehensive Remedial  Alternative, a discussion of how the alternative is likely to eliminate any substantial hazards posed by the disposal site until a Permanent Solution is implemented and a plan and projected timeframe, based on available information, for meeting and maintaining the requirements for a Temporary Solution as specified in 310 CMR 40.1000;

(g)   if a Permanent Solution is selected, the results of the evaluation under 310 CMR 40.0860 of the feasibility of reducing the concentrations of oil and hazardous material in the environment at the disposal site to levels that achieve or approach background, unless the Remedial Action Plan otherwise includes a demonstration that the selected alternative is designed to achieve background;

(h)   if the selected Comprehensive Remedial Alternative is a Temporary Solution and a Permanent Solution is not currently feasible, except for those Temporary Solutions achieved after a Downgradient Property Status Submittal has been provided to the Department in accordance with 310 CMR 40.0180, a detailed description of definitive and enterprising steps pursuant to 310 CMR 40.1051 to identify and develop an alternative that is a likely Permanent Solution and a schedule for the implementation of such steps.  Such steps may include, but are not limited to:

1.   performing pilot tests or bench-scale studies;

2.   investigating innovative ways to reduce the costs or the risks of implementing a specific alternative; and

3.   developing new technologies; and

(i)   a projected schedule for implementation of Phase IV activities, if applicable, pursuant to 310 CMR 40.0870 consistent with the projected timeframe for achievement of a Permanent or Temporary Solution pursuant to 310 CMR 40.0861(2)(e) or (f), as applicable.

 

 40.0862:   Phase III Completion Statement

 

(1)   A Phase III Completion Statement form, established by the Department for such purposes, shall be appended to and submitted with the Remedial Action Plan to the Department.  

 

(2)   In cases where the Phase III Remedial Action Plan is combined with other Comprehensive Response Action Reports, a Completion Statement form for the combined Reports shall be appended to the documents and submitted to the Department.

 

(3)   A Completion Statement submitted with a Phase III Report shall include the following:

(a)   an Opinion from a Licensed Site Professional indicating whether the selected Comprehensive Remedial  Alternative is likely to achieve a Permanent or Temporary Solution, and stating that the Phase III conforms with applicable Phase III performance standards and requirements and any approval conditions specified by the Department; and

(b)   a certification of the submittal required by 310 CMR 40.0009.

 

40.0863:   Public Involvement

 

(1)   Public Involvement Activities shall be conducted in accordance with 310 CMR 40.1400 through 40.1406.  Public Involvement Activities relevant to Phase III specifically include, but are not limited to, those activities set forth in 310 CMR 40.1403(3)(e).

 

(2)   If the disposal site where the Phase III is conducted is a Public Involvement Plan site, then a Public Involvement Plan that is consistent with 310 CMR 40.1405 shall be implemented.

 

40.0864:   Possible Outcome

 

      Upon completion of Phase III, the selected feasible Comprehensive Remedial Alternative shall be developed and implemented pursuant to Phase IV requirements under 310 CMR 40.0870.

 

40.0870:   Phase IV Implementation of the Selected Comprehensive Remedial Alternative

 

      310 CMR 40.0871 through 40.0889, cited collectively as 310 CMR 40.0870, contain the requirements and procedures for conducting Phase IV Comprehensive Remedial Response Actions at disposal sites.

 

40.0871:   General Provisions

 

(1)   Phase IV contains requirements for the design, construction, and implementation of the Comprehensive Remedial Action Alternative selected as a result of the Phase III evaluation under 310 CMR 40.0850.

 

(2)   Phase IV activities shall include, without limitation, the following:

(a)   preparation of a Remedy Implementation Plan (RIP) as set forth in 310 CMR 40.0874;

(b)   documentation of the construction of the Comprehensive Remedial Alternative as described in 310 CMR 40.0875; and

(c)   implementation and final inspection of the Comprehensive Remedial Alternative.

 

(3)   Where appropriate, reports and plans prepared required in Phase IV may be combined.

 

(4)   RPs, PRPs and Other Persons conducting Phase IV activities shall ensure that persons with the appropriate level of training, supervision and applicable licenses or certifications are engaged in the design, construction, operation and maintenance of the Comprehensive Remedial Alternative.

 

(5)   All federal, state and local permits, licenses or approvals and any agreements necessary for construction and operation of the Comprehensive Remedial  Alternative shall be secured as early in Phase IV as possible in order to avoid delays in implementing the remedial action.

 

(6)   The Comprehensive Remedial Alternative shall not be implemented until a complete RIP, as described in 310 CMR 40.0874, has been received by the Department.  Unless otherwise specified by the Department in writing, approval from the Department shall not be required to implement the Comprehensive Remedial Alternative.  Any person implementing the Comprehensive Remedial Alternative shall conform with the proposals and specifications contained in the RIP and any conditions specified by the Department.  Significant modifications to the RIP shall be submitted to the Department prior to implementation of the modifications.

 

40.0872:   Performance Standards

 

(1)   The Phase IV Implementation of the Comprehensive Remedial Alternative selected in Phase III and documented in the Phase III RAP shall:

(a)   ensure that the information, plans and reports related to the design, construction, and implementation of the selected remedial alternative are sufficiently developed and documented to support the implementation of the Comprehensive Remedial Alternative;

(b)   ensure that following initial implementation, the Comprehensive Remedial Alternative meets design and performance specifications;

(c)   meet the  Response Action Performance Standard for the design, construction, and implementation of the Comprehensive Remedial Action, as described in 310 CMR 40.0191; and

(d)   conform with all applicable requirements and deadlines set forth in 310 CMR 40.0000.

 

40.0874:   Remedy Implementation Plan (RIP)

 

(1)   A Remedy Implementation Plan shall be developed for the selected Comprehensive Remedial  Alternative.

 

(2)   Technical justification, as specified in 310 CMR 40.0193, may be used to limit or forgo assessment or evaluation elements of the RIP.  When technical justification is used, a description of the site-specific conditions and characteristics which make a requirement unwarranted shall be provided in the applicable section of the RIP. 

 

(3)   A RIP shall include, without limitation, the following elements:

(a)   a list of relevant contacts, including:

1.   names, addresses, and telephone numbers of the RP, PRP or Other Persons responsible for submittal of the RIP;

2.   name, address, and telephone number of the LSP; and

3.   identification of those persons who will own, operate and/or maintain the selected Comprehensive Remedial Alternative during and following construction;

(b)   Engineering Design.  The RIP shall document engineering concepts and design criteria to be used for the design and construction of the Comprehensive Remedial Alternative including as appropriate and without limitation:

1.   goals of the remedial action, including performance requirements of the remedial systems,  the requirements for achieving a Permanent or Temporary Solution (whichever is applicable) under 310 CMR 40.1000 and the projected timeframe, based on available information, for achieving such Permanent or Temporary Solution;

2.   any significant changes in or new information related to disposal site conditions which were not included in previous submittals;

3.   disposal site maps showing existing disposal site features and proposed locations of activities associated with the remedial action;

4.   a description of the characteristics, quantity, and location of environmental media or materials to be treated or otherwise managed;

5.   a description and conceptual plan of the  activities, treatment units, facilities, and processes to be used to implement the selected remedial action alternative including flow diagrams;

6.   relevant design and operation parameters, including:

a.   design criteria, assumptions and calculations;

b.   expected treatment, destruction, immobilization, or containment efficiencies and documentation of how that degree of effectiveness was determined; and

c.   demonstration that the selected Comprehensive Remedial Alternative will achieve the identified remedial goals (may include information from pilot or treatability tests, similar operations, or scientific literature);

7.   design features for control of oil and hazardous material spills and accidental discharge or system malfunction, including without limitation: containment structures, leak detection devices, run-off controls, pressure valves, bypass systems, or safety cutoffs;

8.   a description of the methods for management or disposal of any treatment residual, contaminated soils, and other waste materials containing oil and/or hazardous material generated as a result of the selected Comprehensive Remedial Alternative;

9.   identification of site-specific characteristics which may affect or be affected by the design, construction, or operation of the selected Comprehensive Remedial Alternative, including, but not limited to:

a.   relationship of the selected Comprehensive Remedial Alternative to existing disposal site activities or operations;

b.    drainage features;

c.   natural resource areas, local planning and development issues; and

d.   soil characteristics and groundwater  characteristics;

10.   a discussion of measures to be incorporated into the design, construction and operation of the selected Comprehensive Remedial Alternative to avoid any deleterious impact on environmental receptors and natural resource areas (including any surface water or wetland), or where it is infeasible to avoid any such impact, a discussion of measures to minimize or mitigate any impact; and

11.   a general description of inspections and monitoring which will be performed to ensure adequate construction and performance of the selected Comprehensive Remedial Alternative;

(c)   Construction Plans and Specifications.  Construction plans shall be prepared in conformance with appropriate engineering and construction standards and practices and regulations applicable to construction plans and activities.  Information on the proposed plans for the construction of the selected Comprehensive Remedial Alternative shall be provided in the RIP and include, without limitation, the following:

1.   as appropriate, plans, material specifications, and procedures related to the construction of the selected Comprehensive Remedial Alternative; and

2.   a schedule for the design and construction of the Comprehensive Remedial Alternative;

(d)   Operation, Maintenance and/or Monitoring (OMM).  In cases where the Comprehensive Remedial Alternative for the disposal site requires operation, maintenance and/or monitoring activities to ensure the effective performance and integrity of the Comprehensive Remedial Alternative and/or the achievement of remedial goals identified pursuant to 310 CMR 40.0874(3)(b)1., an Operation, Maintenance and/or Monitoring plan shall be developed and included in the RIP.  The OMM plan shall include measures necessary to assure effective operations of the Comprehensive Remedial Action under both normal and emergency conditions.  The OMM plan shall include, as appropriate and without limitation, the following:

1.   name and telephone number of the person(s) conducting operation, maintenance and/or monitoring activities;

2.   general operating procedures, including start-up, testing, maintenance, shutdown, and emergency or contingency procedures; and

3.   specification of the type, frequency and duration of monitoring, and testing or inspections to ensure and confirm that the remedial action is performing as designed.  The frequency of monitoring and/or inspections shall be consistent with the Response Action Performance Standard, as described in 310 CMR 40.0191, and in conformance with applicable provisions of 310 CMR 40.0000, including 310 CMR 40.0040 through 40.0049, and the terms of applicable permits, approvals or licenses;

(e)   a health and safety plan, to be followed during the construction and implementation of the selected Comprehensive Remedial Alternative, that adheres to the procedures described in 310 CMR 40.0018;

(f)   a list of any necessary federal, state or local permits, licenses and/or approvals required for the design, construction and/or operation of the selected remedial action alternative and a description of any additional information needed to meet the requirements thereof; and

(g)   a discussion of any property access issues which are relevant to the implementation of the selected Comprehensive Remedial Alternative, and a plan and timetable for resolving property access problems.

 

40.0875:   As-built Construction Report

 

(1)   As-built Construction plans shall be prepared and submitted to the Department in an As-built Construction Report for:

(a)   any disposal site where an Engineered Barrier, cap or other on-site system for the containment and/or physical immobilization of oil and/or hazardous material is constructed as part of the Remedial Action Alternative; or

(b)   any disposal site where the Comprehensive Remedial Alternative as actually constructed varies significantly from the description of the alternative provided in the RIP under 310 CMR 40.0874.

 

(2)   The As-built Construction Report shall include, without limitation, the following information:

(a)   construction activities conducted, and techniques and materials used;

(b)   tests and measurements performed;

(c)   any significant modifications of the design or construction of the selected Comprehensive Remedial Alternative as described under 310 CMR 40.0874(3)(c) of the RIP; and

(d)   as built drawings.

 

(3)   As-built plans for the Comprehensive Remedial Action shall be prepared in conformance with appropriate engineering and construction standards and practices, and regulations applicable to construction plans and activities.

 

40.0877:   Phase IV Status Report and Remedial Monitoring Report

 

(1)   For a disposal site where Active Operation and Maintenance of a remedial action is conducted prior to the submittal of a Final Inspection Report and Phase IV Completion Statement to test and monitor the initial implementation and operation of the Comprehensive Remedial Alternative, a Remedial Monitoring Report shall be submitted to the Department on a form established by the Department for such purposes at the following frequency:

(a)   when the selected Comprehensive Remedial Alternative involves Active Operation and Maintenance to address an Imminent Hazard or Condition of Substantial Release Migration, monthly; or

(b)    when the selected Comprehensive Remedial Alternative involves Active Operation and Maintenance to address conditions that do not pose an Imminent Hazard or Condition of Substantial Release Migration, every six months.

 

(2)   For a disposal site where Active Operation and Maintenance of the selected Comprehensive Remedial Alternative is conducted prior to the submittal of a Final Inspection Report and Phase IV Completion Statement to test and monitor the initial implementation and operation of the Comprehensive Remedial Alternative, a Phase IV Status Report, as described in 310 CMR 40.0877(4) shall be submitted with the initial Remedial Monitoring Report and every six months thereafter.

 

(3)   Unless otherwise specified by the Department, for a disposal site where Active Operation and Maintenance of the selected Comprehensive Remedial Alternative is not conducted prior to the submittal of a Final Inspection Report and Phase IV Completion Statement, a Phase IV Status Report shall not be required but may be submitted at the discretion of the person(s) conducting response actions.

 

(4)   A Phase IV Status Report shall include, as appropriate, the following:

(a)   a description of the type and frequency of operation, maintenance  and/or monitoring activities conducted;

(b)   a description of any significant modifications of the operation, maintenance and/or monitoring program made since the RIP or any preceding Phase IV Status Report;

(c)   an evaluation of the performance of the Comprehensive Remedial Alternative during the reporting period, including whether the initial implementation and operation of the Comprehensive Remedial Action indicates that the remedy is performing as designed to achieve the remedial goals of the Phase IV Remedy Implementation Plan described in 310 CMR 40.0874(3);

(d)   a description of any conditions or problems noted during the period that are or may be affecting the performance of the Comprehensive Remedial Action;

(e)   a description of any measures taken to correct conditions which are affecting the performance of the Comprehensive Remedial Action; and

(f)   the name, license number, signature and seal of the LSP.

 

(5)   After the submittal of a Phase IV Completion Statement, the person(s) conducting the Comprehensive Remedial Action shall submit Status and Remedial Monitoring Reports for the continued Active Operation and Maintenance of a remedial action initiated during Phase IV pursuant to the requirements of 310 CMR 40.0892 or 40.0897 and 40.0898, as applicable. 

 

40.0878:   Final Inspection Report

 

(1)   Upon completion of construction activities and initial implementation of the selected Comprehensive Remedial Alternative, a final inspection of the Comprehensive Remedial Action shall be conducted by the Licensed Site Professional providing the Opinion under 310 CMR 40.0879(2) regarding the construction and implementation of the selected Comprehensive Remedial Alternative.

 

(2)   The final inspection shall be performed to ensure that:

(a)   the selected Comprehensive Remedial Alternative has been constructed in accordance with construction plans under 310 CMR 40.0874(3)(c) or appropriate modifications to such plans; and

(b)   following initial implementation and operation and any modifications or adjustments necessary to optimize the performance of remedial systems, the selected Comprehensive Remedial Alternative is meeting projected design standards.

 

(3)   A description of the final inspection activities and findings shall be provided in a Final Inspection Report and submitted to the Department along with the Phase IV Completion Statement described under 310 CMR 40.0879 and any other Phase IV documents that have not been submitted to the Department by the time the Phase IV Completion Statement is filed.  A list of any federal, state or local permits, licenses and/or approvals obtained related to the design, construction and/or operation of the selected remedial action alternative shall be included in the Final Inspection Report.

 

40.0879:   Phase IV Completion Statement

 

(1)   A Phase IV Completion Statement form, established by the Department for such purposes, shall be appended to and submitted with the Final Inspection Report to the Department.

 

(2)   A Completion Statement form submitted with a Final Inspection Report shall include the following:

(a)   an Opinion from a Licensed Site Professional as to whether the construction and implementation of the selected Comprehensive Remedial Alternative has been completed in accordance with applicable requirements of 310 CMR 40.0870, and the Phase IV performance standards as described in 310 CMR 40.0872 have been met;

(b)   a certification of the submittal required by 310 CMR 40.0009; and

(c)   an indication as to whether any activities under Phase V will be conducted as part of the implementation of the selected Comprehensive Remedial Alternative.

 

(3)   Upon receipt of a Phase IV Completion Statement in accordance with 310 CMR 40.0879 which indicates that any Phase V activities pursuant to 310 CMR 40.0890 are required at a disposal site, the Department shall suspend the further assessment of Tier I or Tier II Annual Compliance Assurance Fees, whichever are applicable, and shall assess a Phase V - Operation Maintenance and/or Monitoring Compliance Assurance Fee pursuant to 310 CMR 4.00:  Timely Action Schedule and Fee Provisions.

 

40.0880:   Public Involvement

 

(1)   Public Involvement Activities shall be conducted in accordance with 310 CMR 40.1400 through 40.1406.  Public Involvement Activities relevant to Phase IV specifically include 310 CMR 40.1403(3)(a) and (e).

 

(2)   If the disposal site where the Phase IV is conducted is a Public Involvement Plan site, then a Public Involvement Plan that is consistent with 310 CMR 40.1405 shall be implemented.

 

40.0881:   Possible Outcomes

 

   Upon completion of Phase IV activities the following outcomes are possible:

(a)   the requirements of a Permanent or Temporary Solution under 310 CMR 40.1000 have been met.  A Permanent or Temporary Solution Statement shall be submitted to the Department;

(b)   a Permanent or Temporary Solution has not yet been achieved, and operation, maintenance and/or monitoring of the Comprehensive Remedial Action (including Remedy Operation Status) is necessary to achieve a Permanent or Temporary Solution under 310 CMR 40.1000; or

(c)   the requirements of a Temporary Solution under 310 CMR 40.1000 have been met, and Post-temporary Solution operation, maintenance and/or monitoring of the remedial action under 310 CMR 40.0897 and 40.0898 is necessary to ensure that the conditions upon which the Temporary Solution is based are maintained and/or that further progress toward a Permanent Solution is made.

 

40.0890:   Operation, Maintenance and/or Monitoring of Comprehensive Response Actions

 

      310 CMR 40.0891 through 40.0899, cited collectively as 310 CMR 40.0890, contain the requirements and procedures for conducting Phase V and Post-temporary Solution Operation, Maintenance and/or Monitoring activities at disposal sites.

 

40.0891:   Phase V General Provisions

 

(1)   The provisions of Phase V shall apply to disposal sites where Phase IV response actions have been completed and operation, maintenance and/or monitoring of the Comprehensive Remedial Action is necessary to achieve a Permanent or Temporary Solution under 310 CMR 40.1000.

 

(2)   Phase V activities may include the following:

(a)   operation and maintenance of the Comprehensive Remedial Action;

(b)   monitoring to evaluate the performance of the remedial systems and whether the Comprehensive Remedial Action is meeting its design specifications;

(c)   monitoring of conditions at the disposal site to evaluate the effectiveness of the Comprehensive Remedial Action in reducing, treating and/or containing oil and/or hazardous material;

(d)   efforts to correct problems if performance monitoring indicates that the Comprehensive Remedial Action is not performing as designed;

and/or

(e)   documentation and submission of the results of operation, maintenance and monitoring activities to the Department, as described in 310 CMR 40.0892.

 

(3)   Operation, maintenance and/or monitoring activities shall follow the OMM plan developed as part of the Remedy Implementation Plan in Phase IV under 310 CMR 40.0874(3)(d).  The OMM plan shall be revised and updated as warranted in response to changes in site conditions, modifications to remedial systems or programs, or as otherwise necessary to ensure that the Comprehensive Remedial Action achieves design standards and remedial goals identified in the RIP pursuant to 310 CMR 40.0874(3)(b)1.

 

(4)   Operation, maintenance and/or monitoring activities shall be documented and submitted to the Department as described in 310 CMR 40.0892.

 

(5)   Operation, maintenance and/or monitoring activities shall be performed at a frequency which is sufficient to ensure the effective performance and the integrity of the remedial action, consistent with the  Response Action Performance Standard as described in 310 CMR 40.0191, and in conformance with the terms of applicable permits, approvals, licenses or provisions in 310 CMR 40.0000.

 

(6)   Phase V operation, maintenance and/or monitoring activities shall be documented and submitted to the Department in Phase V Status Reports, and when required, Remedial Monitoring Reports in accordance with the requirements in 310 CMR 40.0892.

 

40.0892:   Phase V Status and Remedial Monitoring Reports

 

(1)    At a minimum, at a disposal site where Phase V operation, maintenance and/or monitoring of Comprehensive Response Actions is being conducted, a Phase V Status Report as described in 310 CMR 40.0892(2) shall be submitted to the Department six months from the receipt by the Department of the Phase IV Completion Statement and every six months thereafter for the duration of the operation of the remedy. Each Status Report shall document activities occurring over the period of time since the previously submitted Status Report.

 

(2)   Phase V Status Reports shall include, without limitation, the following:

(a)   a description of the type and frequency of operation, maintenance  and/or monitoring activities conducted;

(b)   a description of any significant modifications of the operation, maintenance and/or monitoring program made since the submission of the preceding Phase V Status Report;

(c)   an evaluation of the performance of the remedial action during the period of time since the last Status Report, including whether the remedial action is achieving remedial goals specified in the Phase IV Remedy Implementation Plan as described in 310 CMR 40.0874(3), and a description of any conditions or problems noted during the period that are or may be affecting the performance of the remedial action;

(d)   a description of any measures taken to correct conditions which are affecting the performance of the remedial action; and

(e)   the name, license number, signature and seal of the LSP.

 

(3)   For a disposal site where Active Operation and Maintenance of a Comprehensive Remedial Action is being conducted, in addition to and/or in conjunction with the submittal of a Phase V Status Report, a Remedial Monitoring Report shall be submitted to the Department on a form established by the Department for such purposes at the following frequency:

(a)   when Phase V activities include the Active Operation and Maintenance of a Comprehensive Remedial Action to address an Imminent Hazard or Condition of Substantial Release Migration, with the first Phase V Status Report and monthly  thereafter.  In such cases where the Active Operation and Maintenance of a Comprehensive Remedial Action is not initiated until after the submittal of the first Phase V Status Report, the Remedial Monitoring Report shall be submitted on the  monthly anniversary of the submittal of the first Phase V Status Report;

(b)   when Phase V activities include Active Operation and Maintenance of a Comprehensive Remedial Action to address conditions that do not pose an Imminent Hazard or Condition of Substantial Release Migration, with the first Phase V Status Report and every six months thereafter.  In such cases where the Active Operation and Maintenance of the Comprehensive Remedial Action is initiated after the submittal of the first Phase V Status Report, the Remedial Monitoring Report shall be submitted concurrently with the submittal of the next Phase V Status Report;

(c)   Nothwithstanding 310 CMR 40.0892(3)(a) and (b), when activities that include the Active Operation and Maintenance of a Comprehensive Remedial Action are continued in Phase V after being initiated in a previous phase of work (i.e., as an Immediate Response Action, Release Abatement Measure, or during the initial implementation and operation of a remedy in Phase IV), the Status Report submittal schedule established under the previous phase of work shall be continued into Phase V.

 

40.0893:   Remedy Operation Status

 

(1)   Applicability.  Remedy Operation Status applies to disposal sites in Phase V where a Comprehensive Remedial Action that relies upon Active Operation and Maintenance of a remedial system or program and meets the requirements of 310 CMR 40.0893 is being conducted for the purpose of achieving a Permanent Solution.

 

(2)   Performance Standard for Remedy Operation Status.  To achieve and maintain Remedy Operation Status for a disposal site:

(a)   Phase III and Phase IV Comprehensive Response Actions as described in 310 CMR 40.0850 and 40.0870, respectively, shall be completed;

(b)   the remedial system or program shall be adequately designed in accordance with 310 CMR 40.0870 to achieve a Permanent Solution;

(c)      the remedial system or program shall be operated and maintained in accordance with the requirements of 310 CMR 40.0890 and 40.0000 and any applicable permits, approvals, or licenses;

(d)   each Source of OHM Contamination shall be eliminated or controlled in accordance with 310 CMR 40.1003(5);

(e)   any Substantial Hazard shall be eliminated;

(f)   where the remedy includes one or more Active Exposure Pathway Mitigation Measure(s), the requirements at 310 CMR 40.1026 are met; and

(g)   at a minimum, information and data on operation and maintenance or monitoring shall be documented and submitted to the Department in Status and Remedial Monitoring Reports at the frequency  described in 310 CMR 40.0892. 

 

(3)   Content of Submittal.  Unless otherwise specified by the Department, Remedy Operation Status shall be effective upon submission of a completed Remedy Operation Status Submittal.  A complete Submittal shall include:

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

(b)   a Remedy Operation Status Opinion prepared in accordance with 310 CMR 40.0015 that finds that each of the performance standards described in  310 CMR 40.0893(2) are met; and

(c)   the certification required by 310 CMR 40.0009.

 

(4)   Effect of Remedy Operation Status.  At any site with Remedy Operation Status, the deadline to achieve a Permanent or Temporary Solution within five years of the effective date of a Tier Classification as described in 310 CMR 40.0560 shall not apply and a Tier Classification Extension as described in 310 CMR 40.0560(7) shall not be required provided that the Remedy Operation Status is not terminated pursuant to 310 CMR 40.0893(6).

 

(5)   Transfer or Modification of Remedy Operation Status.  Remedy Operation Status may be transferred to one or more person(s) who will assume responsibility for the ongoing operation of the Comprehensive Remedial Action under Remedy Operation Status or modified to add one or more persons to those persons conducting response actions under Remedy Operation Status.  Unless otherwise specified by the Department, such transfer or modification shall take effect upon the submittal of the following to the Department:

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

(b)   the written consent of the RP, PRP or Other Person(s) that submitted the Remedy Operation Status submittal;

(c)   for each transferee or each person to be added to those persons conducting response actions, a statement detailing that person’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 or other federal, state or local government agencies that are material to the disposal site;

(d)   in the case of a modification to add a person(s) to those persons conducting response actions or of more than one transferee, designation of a primary representative and a certification that he or she is fully authorized to act on behalf of the persons conducting response actions under Remedy Operation Status;

(e)   a statement as to why the transfer or modification is being sought; and

(f)   the certification required by 310 CMR 40.0009 for each person to be added to those conducting response actions.

 

(6)   Termination of Remedy Operation Status.

(a)   Remedy Operation Status shall terminate if:

1.   the person providing the Remedy Operation Status Opinion fails to meet the requirements of 310 CMR 40.0893(2).  Mechanical failure of the system and/or the need to undertake substantial system modifications shall not terminate Remedy Operation Status if written notice is provided to the Department and the operation of the remedy is resumed in accordance with 310 CMR 40.0893(6)(b); or

2.   the person providing the Remedy Operation Status Opinion notifies the Department in accordance with 310 CMR 40.0893(6)(c) that such person intends to terminate Remedy Operation Status;

(b)   Any person conducting response actions at a disposal site with Remedy Operation Status who obtains knowledge that the criteria in 310 CMR 40.0893(2) are no longer being met, including knowledge of a mechanical failure and/or need to substantially modify the remedial system or program, shall provide written notice to the Department in the form of a Status Report within 30 days of obtaining such knowledge.  Notice shall include plans and a timetable to correct failures and/or to implement modifications of the remedial system or program.  Remedy Operation Status shall terminate unless the remedial system or program is operating in accordance with 310 CMR 40.0893(2) within 120 days of providing such written notice or within  an Interim Deadline established by the Department and a Status Report is submitted to the Department that documents the resumed operation of the remedy within 120 days of the notice or the Interim Deadline, whichever is applicable;

(c)   Any person who intends to discontinue operation of the remedial system or program or, where applicable, an Active Exposure Pathway Mitigation Measure,  on which the Remedy Operation Status is based and/or otherwise terminate Remedy Operation Status, shall provide written notice to the Department.  Remedy Operation Status shall terminate upon the Department's receipt of such notice;

(d)   Notwithstanding 310 CMR 40.0893(6)(c), any person who intends to discontinue operation of the remedial system, program or Active Exposure Pathway Mitigation Measure on which the Remedy Operation Status is based in order to assess whether the remedial goals have been achieved and conditions remain stable over time may maintain Remedy Operation Status provided that he or she:

1.   notifies the Department of the system shut down for the purpose of such evaluation and the plans for monitoring site conditions in the next required Status Report following system shut down;

2.   continues to submit Status Reports at the frequency required in 310 CMR 40.0892; and

3.   notifies the Department if operation of the system is resumed in the next required Status Report following resumed operation;

(e)   Any person conducting response actions at a disposal site where Remedy Operation Status has been terminated pursuant to 310 CMR 40.0893(6)(a) shall have two years from the date of the termination to achieve a Permanent or Temporary Solution. Response actions after the termination of Remedy Operation Status shall not be conducted without a valid Tier  Classification or Extension thereof.

 

40.0894:   Phase V Completion Statement

 

(1)   Upon achievement of a Permanent or Temporary Solution after conducting Phase V operation, maintenance and/or monitoring activities, a Phase V Completion Statement form, established by the Department for such purposes, shall be submitted with the final Phase V inspection and monitoring report to the Department.

 

(2)   The Phase V Completion Statement form shall include:

(a)   an Opinion from a Licensed Site Professional:

that:

1.   specifies the Phase V outcome achieved as described in 310 CMR 40.0896;

2.   except where operation, maintenance and/or monitoring are continuing under 310 CMR 40.0897 and 40.0898, provides a description of residual oil and/hazardous material at the disposal site and any measures in place, including physical barriers and/or Activity and Use Limitation for preventing or limiting the exposure of human and/or environmental receptors to residual oil and hazardous material; and

3.   except where operation, maintenance and/or monitoring are continuing under 310 CMR 40.0897 and 40.0898, provides justification for terminating operation, maintenance and/or monitoring activities; and

(b)   a certification of the submittal required by 310 CMR 40.0009.

 

40.0895:   Public Involvement

 

(1)   Public Involvement Activities shall be conducted in accordance with 310 CMR 40.1400 through 40.1406.  Public Involvement Activities relevant to Phase V specifically include, but are not limited to, those activities set forth in 310 CMR 40.1403(3)(e) and (f).

 

(2)   If the disposal site where the Phase V is conducted is a Public Involvement Plan site, then a Public Involvement Plan that is consistent with 310 CMR 40.1405 shall be implemented.

 

40.0896:   Possible Outcomes

 

      Upon completion of operation, maintenance and monitoring activities under Phase V the following outcomes are possible: 

 

(1)   the requirements of a Permanent Solution under 310 CMR 40.1000 have been met and no additional operation, maintenance and/or monitoring of the remedial action alternative is necessary to ensure the integrity of the Permanent Solution.  A Permanent Solution Statement shall be submitted to the Department;

 

(2)   the requirements of a Permanent Solution under 310 CMR 40.1000 have been met but conditions apply to maintaining the Permanent Solution.  A Permanent Solution with Conditions Statement shall be submitted to the Department;

 

(3)   the requirements of a Temporary Solution under 310 CMR 40.1000 have been met and no additional operation, maintenance and/or monitoring of the remedial action alternative is necessary to ensure the integrity of the Temporary Solution.  A Temporary Solution Statement shall be submitted to the Department; or

 

(4)   the requirements of a Temporary Solution under 310 CMR 40.1000 have been met, a Temporary Solution Statement has been submitted to the Department, and additional Post-temporary Solution Operation, Maintenance, and/or Monitoring of the remedial action alternative under 310 CMR 40.0897 and 40.0898 is necessary to ensure that the conditions upon which the Temporary Solution is based are maintained and/or that further progress toward a Permanent Solution is made.

 

40.0897:   Post-temporary Solution Operation, Maintenance and/or Monitoring

 

(1)   310 CMR 40.0897 shall apply to any disposal site where:

(a)   a Temporary Solution Statement for a Temporary Solution under 310 CMR 40.1000 has been submitted to the Department; and

(b)   the operation, maintenance and/or monitoring of the Comprehensive Remedial Action is necessary to ensure that the conditions upon which the Temporary Solution is based are maintained.

 

(2)   Post-temporary Solution operation, maintenance and/or monitoring activities may include the following:

(a)   operation and maintenance of the Comprehensive Remedial Action;

(b)   monitoring to evaluate the performance of the remedial systems and whether the remedial action is meeting its design specifications;

(c)   monitoring of conditions at the disposal site to evaluate the effectiveness of the remedial action in reducing, treating and/or containing oil and/or hazardous material;

(d)   efforts to correct problems if performance monitoring indicates that the remedial action is not performing as designed;

(e)   monitoring to confirm the long-term effectiveness of the remedial action in maintaining the Temporary Solution pursuant to 310 CMR 40.1000; and

(f)   documentation and submission of the results of operation, maintenance and monitoring activities to the Department, as described in 310 CMR 40.0898.

 

(3)   Post-temporary Solution operation, maintenance and/or monitoring activities shall be conducted at a frequency which is sufficient to ensure the effective performance and the integrity of the remedial action, consistent with the Response Action Performance Standard as described in 310 CMR 40.0191, and in conformance with the terms of applicable permits, approvals, licenses and  remedial action plan.  Such plan shall be revised and updated as warranted in response to changes in site conditions, modifications to remedial systems, or as otherwise necessary to ensure that the remedial action achieves design standards and remedial goals.

 

(4)   Post-temporary Solution operation, maintenance and/or monitoring activities shall be documented and submitted to the Department in a Post-temporary Solution Status Report, and when required, Remedial Monitoring Reports in accordance with the requirements in 310 CMR 40.0898.

 

40.0898:   Post-temporary Solution Status and Remedial Monitoring Reports

 

(1)   At a minimum, a Post-temporary Solution Status Report as described in 310 CMR 40.0898(2) shall be submitted to the Department six months from the receipt by the Department of the original plan for Post-temporary Solution operation, maintenance and/or monitoring and every six months thereafter for the duration of the operation of the remedy.  Each Status Report shall document activities occurring over the period of time since the previously submitted Status Report.

 

(2)   Post-temporary Solution Status Reports shall include, without limitation, the following:

(a)   a description of the type and frequency of operation, maintenance and/or monitoring activities conducted;

(b)   a description of any significant modifications of the operation, maintenance and/or monitoring program made since the submission of the preceding Status Report;

(c)   an evaluation of the performance of the remedial action during the period of time since the last Status Report, including whether the remedial action is achieving remedial goals specified in the applicable remedial action plan and a description of any conditions or problems noted during the period that are or may be affecting the performance of the remedial action;

(d)   a description of any measures taken to correct conditions which are affecting the performance of the remedial action; and

(e)   the name, license number, signature and seal of the LSP.

 

(3)   For a disposal site where Active Operation and Maintenance of a remedial action is being conducted, in addition to and/or in conjunction with the submittal of Post-temporary Solution Status Reports, a Remedial Monitoring Report shall be submitted to the Department on a form established by the Department for such purposes with the first Post-temporary Solution Status Report and every six months thereafter.  In such cases where the Active Operation and Maintenance of a remedial action is not initiated until after the submittal of the first Post-temporary Solution Status Report, the Remedial Monitoring Report shall be submitted concurrently with the next Post-temporary Solution Status Report.