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40.1101:   Purpose, Scope and Applicability

(1)   The regulations published at 310 CMR 40.1101 through 310 CMR 40.1199, collectively referred to as 310 CMR 40.1100, establish procedures for the Department to audit a sufficient number of response actions not overseen or conducted by the Department to ensure that those response actions are performed in compliance with M.G.L. c. 21E, 310 CMR 40.0000, 310 CMR 40.000 and any other requirement applicable to such response actions. 

(2)   During each fiscal year, the Department shall audit at least 20% of all sites for which annual compliance assurance fees are required to be paid pursuant to M.G.L. c. 21E, s. 3B. The Department may establish additional audit targets for categories of persons, response actions or sites based on the level of Department oversight provided to each category.

(3)   In its audit of any response action submittal, the Department shall base its finding of any violation or assessment of a penalty on the Massachusetts Contingency Plan and Response Action Performance Standard in effect at the time of its receipt of the submittal.

40.1110:  Selection of Persons, Response Actions and Sites for Audit

(1)   The Department may conduct an audit of any RP, PRP, Other Person, response action or site in accordance with 310 CMR 40.1100. The Department selects persons, response actions and sites for audit randomly (Random Audits) and by criteria-specific methods (Targeted Audits).

(2)   Except as provided in 310 CMR 40.1110(3) and 310 CMR 40.1110(4), the Department may initiate an audit of any specific RP, PRP, Other Person, response action or site without any limitation as to time.

(3)   Except as provided in 310 CMR 40.1110(5), the Department shall not initiate a Random Audit with respect to any specific person, response action or site after two years has passed since the date of the Department's receipt of:

(a)   a Class A or Class B Response Action Outcome Statement; or

(b)   an LSP Evaluation Opinion stating that the requirements for a Class A or B Response Action Outcome have been achieved from such person and/or pertinent to such response action and/or site. Except as expressly provided by 310 CMR 40.1110(4), 310 CMR 40.1110(3) shall not be construed to limit the Department's authority to initiate a Targeted Audit of any person, response action or site.

(4)   Except as provided in 310 CMR 40.1110(5), the Department shall not initiate a Targeted Audit of any RP, PRP, Other Person, response action or site after five years has passed since the date of the Department's receipt of a Class A or Class B Response Action Outcome Statement from such person and/or pertinent to such response action and/or site, unless the Department has reason to believe that:

(a)   response actions taken at a site may have failed to achieve or maintain a level of No Significant Risk; or

(b)   a significant risk of harm to health, safety, public welfare or the environment may exist at a site, or in the vicinity of a site, for which a Response Action Outcome Statement has been submitted to the Department; or

(c)   a response action has been taken at a site in noncompliance with M.G.L. c. 21E, 310 CMR 40.0000 or any other applicable requirement; or

(d)   the Response Action Outcome Statement has failed to identify material facts, data, or other information known by the LSP who rendered the Response Action Outcome Statement or by the person who undertook response actions at a site; or

(e)   the person responsible for undertaking response actions at a site has failed to fully respond to a Request for Information; or

(f)   the activities, uses and/or exposures upon which a Response Action Outcome Statement is based have changed to cause human or ecological exposure, or cause an increased potential for human or environmental exposure, to oil and/or hazardous material; or

(g)   any person required by 310 CMR 40.0014 to retain documents pertinent to the Response Action Outcome Statement has failed to do so; or

(h)   any person required by 310 CMR 40.0800 to perform operation and maintenance and monitoring activities at the site has failed to do so; or

(i)   any person undertaking, performing, managing, supervising or overseeing response actions at the site has engaged in a pattern of noncompliance, considering the criteria set forth in 310 CMR 5.13;

(j)   any person responsible for undertaking response actions at a disposal site has violated, suffered, allowed or caused any person to violate an Environmental Restriction; or

(k)   any change in activity, use and/or exposure upon which a Response Action Outcome Statement is based occurred at a disposal site without an evaluation by an LSP in accordance with 310 CMR 40.1080 and without additional response actions, if necessary.

(5)   Notwithstanding any provision in 310 CMR 40.1110(3) or 310 CMR 40.1110(4), the Department may initiate, at any time, a Random or Targeted Audit of any site subject to an Activity and Use Limitation.

40.1120   Audit Activities

(1)   During an audit, the Department may do the following:

(a)   examine documents within the Department's records;

(b)   request that the person who has performed the response action provide a written explanation, or other supporting evidence, to demonstrate compliance with M.G.L. c. 21E, 310 CMR 40.0000, and other applicable requirements;

(c)   request that the person who has performed the response action that is the subject of the audit appear at one of the Department's offices to discuss response actions and provide supporting evidence to demonstrate compliance with M.G.L. c. 21E, 310 CMR 40.0000, and other applicable requirements;

(d)   enter and inspect a site or other location to determine whether an RP, PRP, Other Person, response action or site is in compliance with M.G.L. c. 21E, 310 CMR 40.0000, and other applicable requirements;

(e)   investigate, take samples at a site and inspect records, conditions, equipment or practices material to the response action or property related to the site; and

(f)   take any other actions the Department deems necessary to determine whether response actions have been performed in compliance with M.G.L. c. 21E, 310 CMR 40.0000, and other applicable requirements.

(2)   Any person requested to appear for an interview may be represented by an attorney, Licensed Site Professional or other representative.

40.1130:   Initiation of Audit

Prior to undertaking an audit activity other than an examination of documents within the Department's records, or within other public records, the Department shall provide reasonable Notice of Audit to the person who has performed response actions at the site that the site has been selected for audit. Such notice shall include the following information:

(1)   the name and location of the site;

(2)   the Release Tracking Number(s);

(3)   the scope of the audit and the type of audit activities to be performed;

(4)   the location at which the audit will be conducted; and

(5)   any other notice, information or request the Department deems appropriate.

40.1131:   Response Actions During Audits

Persons who have been notified of the initiation of an audit may continue to conduct response actions during the course of an audit unless otherwise ordered by the Department.

40.1140:   Notice of Audit Findings

(1)   Except with respect to an audit that consists solely of an examination of documents within the Department's records or in other public records, the Department shall issue a Notice of Audit Findings at the conclusion of an audit. Such notice shall include the following information:

(a)   the name and location of the site;

(b)   the Release Tracking Number(s);

(c)   a statement as to the type of audit performed;

(d)   a statement as to whether the Department, on the basis of the information reviewed during the audit and in reliance upon the accuracy of that information, identified any violations or deficiencies;

(e)   an Interim Deadline by which violations and/or deficiencies shall be corrected;

(f)   an Interim Deadline by which an Audit Follow-up Plan, if such a plan is required, shall be submitted; and

(g)   any other information or request the Department deems appropriate.

(2)   In the event the Department identifies violations of M.G.L. c. 21E, 310 CMR 40.0000 or any other applicable requirement during an audit, the Department may issue any of the following with a Notice of Audit Findings:

(a)   a Notice of Noncompliance;

(b)   a Notice of Intent to Assess a Civil Administrative Penalty;

(c)   a Notice of Responsibility;

(d)   a Notice of Response Action; and/or

(e)   an order.

(3)   The Department shall not be required to issue a Notice of Audit Findings to any person if the Department determines that such notice could jeopardize an enforcement action.

40.1160:   Audit Follow-up Plans

(1)   At or prior to the issuance of a Notice of Audit Findings, the Department may require that a RP, PRP or Other Person submit for its approval a written Audit Follow-up Plan setting forth how and when such person proposes to confirm, demonstrate or achieve compliance with M.G.L. c. 21E, 310 CMR 40.0000 and/or any applicable requirements.

(2)   Each Audit Follow-up Plan shall be submitted to the Department using a form established by the Department for such purpose, and shall include, at a minimum, the following information:

(a)   a description of the activities that will be taken;

(b)   the objective of, and proposed schedule for, each element of the plan;

(c)   the name, registration number, signature and seal of the Licensed Site Professional who prepared the Audit Follow-up Plan; and

(d)   the certification set forth in 310 CMR 40.0009.

(3)   In approving an Audit Follow-up Plan, the Department may do the following:

(a)   establish conditions, including, but not limited to, conditions setting forth the Department's role in overseeing elements of the plan;

(b)   establish Interim Deadlines;

(c)   establish requirements for documentation and/or submittal of information; and

(d)   take any other action authorized by M.G.L. c. 21E, 310 CMR 40.0000 or any other applicable law.

(4)   If the Department does not approve or disapprove of an Audit Follow-up Plan within 90 days of its receipt of such plan, an RP, PRP or Other Person shall proceed to implement such plan.

(5)   Any person who is required to comply with an Audit Follow-up Plan may request, in writing, a modification thereof prior to the running of any applicable deadline.  Modifications shall be approved, conditionally approved, or denied by the Department in writing within 21 days of receipt.  Approval of such modification shall be presumed if the Department does not issue a written approval or denial of said modification within 21 days of receipt.

(6)   Public Involvement Activities required for Audit Follow-up Plans shall be conducted in accordance with 310 CMR 40.1400.  If the disposal site where an Audit Follow-up Plan is being implemented is a designated Public Involvement Plan site, then a Public Involvement Plan shall be implemented by the person conducting response actions at that site pursuant to 310 CMR 40.1405.

40.1170:   Post-Audit  Completion Statements

(1)   Upon completion of the activities required by the Department in a Notice of Audit Findings  or any approved Audit Follow-up Plan, the RP, PRP or Other Person undertaking such activities shall submit a Post-Audit Completion Statement to the Department using a form established by the Department for such purpose.

(2)   Each Post-Audit  Completion Statement shall include the following information:

(a)   an LSP Opinion as to whether the response actions required by the Notice of Audit Findings and any approved Audit Follow-up Plan have been completed in accordance with M.G.L. c. 21E, 310 CMR 40.0000, the terms of any Department approval, and any other applicable laws and requirements;

(b)   a description of the response actions completed pursuant to the Notice of Audit Findings and any approved Audit Follow-up Plan;

(c)   the investigatory and monitoring data obtained, if any, during the implementation of such response actions;

(d)   any other information required by the Department in the Notice of Audit Findings or any approved Audit Follow-up Plan; and

(e)   a description of  additional response activities, if any, necessary to confirm, demonstrate or achieve compliance with the requirements stated in the Notice of Audit Findings or any approved Audit Follow-up Plan.

40.1190:   Reservation of Rights

(1)   No provision of 310 CMR 40.1100 shall be construed to relieve any person from any obligation for Response Action Costs or damages related to a site or disposal site for which that person is liable under M.G.L. c. 21E or from any obligation for any administrative, civil or criminal penalty, fine, settlement, or other damages.

(2)   No provision of 310 CMR 40.1100 shall be construed to limit the Department's authority to take or arrange, or to require any RP or PRP to perform, any response action authorized by M.G.L. c. 21E which the Department deems necessary to protect health, safety, public welfare or the environment.