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40.1200:   Cost Recovery

(1)   The regulations published at 310 CMR 40.1201 through 310 CMR 40.1249, cited collectively herein as 310 CMR 40.1200, set forth procedures for recovery of Response Action Costs by or on behalf of the Commonwealth.

40.1201:   Purpose, Scope and Applicability

(1)   310 CMR 40.1200 does not apply to any other compensation, recovery or reimbursement to which the Commonwealth may be entitled, or to any compensation, recovery or reimbursement to which any person other than the Commonwealth may be entitled, except as provided by M.G.L. c. 21E, s. 3A(j)(2) or M.G.L. c. 21E, s. 3B.

(2)   The provisions of 310 CMR 40.1200 shall apply to Response Action Costs incurred on or after October 1, 1993.  Nothing herein shall prevent the Commonwealth from recovering Response Action Costs incurred prior to October 1, 1993.

(3)   Neither 310 CMR 40.1200 nor any other provision of this Contingency Plan is intended to provide procedures for the recovery of costs or damages by private persons.

(4)   These provisions shall not apply to a RP, PRP or Other Person who:

(a)   has paid in full annual compliance assurance fees, including interest if and when applicable, in accordance with 310 CMR 4.00, if the Response Action Costs were incurred during the period for which such annual compliance assurance fees were required to be paid for the response action(s) at or for the site; and

(b)   is performing response actions at the site.

40.1202:   General Provisions

The Department shall collect and maintain documentation of response actions and Response Action Costs.  The documentation shall form the basis for recovery of Response Action Costs.  The circumstances of every release or threat of release of oil and/or hazardous material which is the subject of a response action shall be compiled and maintained in records.  Such records shall contain a description of response actions taken, any RPs or PRPs identified, and an accounting of costs incurred by the Department.

40.1220:   Recovery of Response Action Costs Incurred in Response Actions

The provisions set forth in 310 CMR 40.1220 and 310 CMR  40.1221 shall govern the Commonwealth's recovery of Response Action Costs incurred pursuant to this Contingency Plan.

(1)   Response Action Costs.  Response Action Costs with regard to a specific site shall be calculated so as to reflect the actual cost of the Department's response actions.  Such Costs shall be calculated as follows:

(a)   The total number of Direct Hours expended by each employee of the Department with regard to a specific site shall be multiplied by the employee's hourly rate, and then the figures derived for each Department employee shall be added together;

(b)   To the figure derived in 310 CMR 40.1220(1)(a) shall be added a figure derived by multiplying the total number of Direct Hours expended by all employees of the Department with regard to a specific site by the current Indirect Rate, which shall be calculated in accordance with 310 CMR 40.1221; and 

(c)   All payments made by the Department to its Contractors, grantees or agents to plan, manage, direct or perform response actions with regard to a specific site shall be added to the figure derived pursuant to 310 CMR 40.1220(1)(a) and (b). 

(2)   Recovery and Demand.

(a)   The Department may seek to recover Response Action Costs calculated pursuant to 310 CMR 40.1220(1), using any of the means described in M.G.L. c. 21E, 310 CMR 40.0000, or other applicable law.  Any recovery of Costs by the Department shall not prevent the Department from incurring and recovering additional Response Action Costs.

(b)   The Department may make written demand for Response Action Costs with regard to a specific site to all RPs, PRPs and Other Persons after such costs have been calculated pursuant to 310 CMR 40.1220(1), and periodically thereafter.

(3)   Administrative Review.

(a)   The Department may, in its sole discretion, provide an opportunity for an informal conference to any person to whom the Department has made a demand for payment of Response Action Costs and who disputes the calculation or reasonableness of those Costs.  Such review may provide an opportunity to present, at a minimum, written information regarding a disputed demand to the Department for its consideration.

(b)   The Department may impose reasonable time limits within which any person to whom the Department has made a demand for payment may request such administrative review.

(c)   An administrative review pursuant to 310 CMR 40.1220(3) shall not be construed to be an "adjudicatory proceeding" as defined by M.G.L. c. 21E or M.G.L. c. 30A and shall not be subject to 310 CMR 1.00.  Any conclusions reached by the Department as part of such review shall not be construed to be an order pursuant to M.G.L. c. 21E, s.s. 9 or 10, unless the Department specifically and in writing states otherwise.

(4)   Interest Calculation.  The Department shall seek to recover interest accrued on uncollected Response Action Costs at a rate of one percent per month, or 12% per year, commencing forty five days after the Department has made written request for payment of Costs.  The Department shall compound the interest annually until the debt is paid or otherwise resolved.  The Department may elect not to seek interest that accrues during an administrative review pursuant to 310 CMR 40.1220(3).

(5)   Treble Costs.

(a)   The Department may seek to recover from RPs and/or PRPs up to three times the Response Action Costs calculated pursuant to 310 CMR 40.1220(1), in accordance with M.G.L. c. 21E, s. 5(e).

(b)   The Department, in its sole discretion, may elect not to seek treble costs from RPs and/or PRPs who pay Response Action Costs after demand is made pursuant to 310 CMR 40.1220(2)(b).

(6)   Using Consent Orders to Set a Maximum for Response Action Costs to be Recovered.  The Department may enter into an administrative consent order with RPs, PRPs or Other Persons governing response actions at a site pursuant to M.G.L. c. 21E, s.s. 9 or 10.  If the Department is able to estimate future Response Action Costs at a disposal site with a reasonable degree of certainty, the Department may, in its sole discretion and subject to terms and conditions, agree as a part of such consent order upon an amount which shall be the maximum Response Action Cost the Department will seek to recover from such RPs, PRPs or Other Persons for work to be performed pursuant to the provisions of that consent order.

40.1221:   Calculation of Indirect Rate

(1)   The Indirect Rate shall be recalculated in conformance with and on the same schedule as that utilized by 310 CMR 4.00. 

(2)   Commencing October 1, 1993, and continuing until the Indirect Rate is changed pursuant to 310 CMR 40.1221(1), the Indirect Rate shall be $27.31 per Direct Hour.

40.1250:   Procedures for Liens

The regulations published at 310 CMR 40.1250 through 310 CMR 40.1259, cited collectively herein as 310 CMR 40.1250, set forth procedures for recording, registering and filing liens authorized by M.G.L. c. 21E, s. 13.

40.1251:   Notice of Intent to Perfect a Lien

Whenever the Department intends to record, register or file a lien on real or personal property pursuant to M.G.L. c. 21E, s.13, the Department shall provide a notice of such intent to any owner of the property whose name and address is known to the Department as of 21 days prior to the date the Department provides such notice of intent, and also to the following persons who have a Property Interest in the property over which the Department's lien will have priority pursuant to M.G.L. c. 21E, s.13:

(1)   persons having a recorded or registered Property Interest in the property whose name and address is known to the Department as of 21 days prior to the date the Department provides such notice of intent; 

(2)   persons having an unrecorded or unregistered Property Interest in the property whose interest, name and address is known to the Department as of 21 days prior to the date the Department provides such notice of intent; and

(3)   persons having an unrecorded or unregistered Property Interest in the property whose interest, name and/or address is unknown to the Department.

40.1252:   Content of Notice of Intent to Perfect a Lien

Each Lien Notice shall include all of the following:

(1)   a statement of the Department's statutory and regulatory authority to record, register or file the lien;

(2)   a concise statement of the alleged factual and legal basis for the lien, including a description of the property and any debt to the Commonwealth;

(3)   a statement that any owner of the property and any person having a Property Interest in the property over which the lien will have priority pursuant to M.G.L. c. 21E, s.13 has a right to an adjudicatory hearing on such perfection;

(4)   a statement of the requirements that must be complied with by a person having a right to an adjudicatory proceeding pursuant to 310 CMR 40.1254 in order to avoid being deemed to have waived his or her right to such adjudicatory hearing; and

(5)   a statement of how and when the debt owed must be paid to avoid perfection of the lien.

40.1253:   Service of Notice of Intent to Perfect a Lien

Each Lien Notice shall be served by one or more of the following methods:

(1)   Service in hand at the person's last known address or at the last known address of any officer, employee, or agent of the person authorized by appointment of the person or by law to accept service.

(2)   Service in hand personally to the person, or to any officer, employee, or agent of the person authorized by appointment of the person or by law to accept service.

(3)   By certified mail, return receipt requested, addressed to the person's last known address, or to the last known address of any officer, employee, or agent of the person authorized by appointment of the person or by law to accept service.

(4)   With respect to any person having an unrecorded or unregistered Property Interest in the property whose name and/or address is unknown to the Department, by publication in a newspaper of general circulation serving the community where the property is located.

40.1254:   Right to Adjudicatory Hearing

Subject to the provisions of 310 CMR 40.1255, whenever the Department seeks to perfect a lien on any real or personal property, the following persons shall have the right to an adjudicatory hearing:

(1)   any owner of the property;

(2)   any other person having a recorded or registered Property Interest in the property over which the lien will have priority pursuant to M.G.L. c. 21E, s. 13; and/or

(3)   any person having an unrecorded or unregistered Property Interest in the property over which the lien will have priority pursuant to M.G.L. c. 21E, s.13.

40.1255:   Waiver of Right to Adjudicatory Hearing

Any person who has a right to an adjudicatory hearing pursuant to 310 CMR 40.1254 shall be deemed to have waived the right to an adjudicatory hearing unless the Department receives from such person a written statement that denies that the Department has a basis to perfect the lien, and does so subject to and in compliance with applicable provisions of the Department's Rules for Adjudicatory Proceedings, 310 CMR 1.00, within 21 days of the following:

(a)   with respect to the notice required by 310 CMR 40.1251(1) or (2), the date of issuance of the notice in accordance with 310 CMR 40.1253(1), (2) or (3); or

(b)   with respect to the notice required by 310 CMR 40.1251(3), the date of publication of the notice in accordance with 310 CMR 40.1253(4).

40.1256:   Conducting the Adjudicatory Hearing

(1)   Every adjudicatory hearing conducted pursuant to M.G.L. c. 21E and 310 CMR 40.1250 shall be conducted in accordance with all applicable provisions of M.G.L. c. 30A and 310 CMR 1.00, provided, however, that to the extent such provisions are inconsistent with M.G.L. c. 21E and 310 CMR 40.1250, the provisions of M.G.L. c. 21E and 310 CMR 40.1250 shall apply.

(2)   The Department shall not be required to prove any facts alleged by the Department in the Lien Notice unless such facts are expressly denied in the statement filed pursuant to 310 CMR 40.1255.

(3)   If, in the statement filed pursuant to 310 CMR 40.1255, the person filing such statement denies one or more facts, the Department shall demonstrate a reasonable likelihood that such fact or facts is true or exists.

(4)   Damage to the environment, as defined in M.G.L. c. 214A, s. 7, will not be at issue during the conduct of hearings pursuant to 310 CMR 40.1250..

40.1257:   Reservation of Rights

No provision of 310 CMR 40.1250 shall be construed to limit or waive the Department's rights to commence a civil action for the purposes of obtaining an order or decree authorizing the recording, registering or filing of a lien pursuant to M.G.L. c. 21E, s. 13, including, but not limited to, the commencement of an ex parte proceeding in the event of exigent or other circumstance that would render real or personal property unavailable to satisfy an eventual judgment.

40.1260:   Petitions for Reimbursement of Incurred Costs

The regulations published at 310 CMR 40.1260 through 310 CMR 40.1269, cited collectively herein as 310 CMR 40.1260, set forth procedures for petitioning the Department for reimbursement for the reasonable costs of compliance with an order issued pursuant to M.G.L. c. 21E, s. 10(b).

40.1261:   Right to Petition for Reimbursement

Any person to whom the Department has issued an order pursuant to M.G.L. c. 21E, s. 10(b), who either (1) disputes his or her liability under M.G.L. c. 21E, s. 5, or (2) claims he or she was entitled to the benefits of an affirmative defense or limitation on liability set forth in M.G.L. c. 21E or in any other applicable law may petition the Department for reimbursement for the reasonable costs of compliance with such order.  No order or determination issued by the Department shall be construed to be an order issued pursuant to M.G.L. c. 21E, s. 10(b), unless the Department specifically and in writing provides to that effect.

40.1262:   Content of Petition

Each petition for reimbursement pursuant to M.G.L. c. 21E, s. 10(b)(2), and 310 CMR 40.1261 shall be in writing and shall state clearly and concisely the facts upon which the petitioner claims are grounds for reimbursement, the costs for which reimbursement is sought, the location and Release Tracking Number(s) of the disposal site, and the file number as it appears in the caption on such order.

40.1263:   Timing of Petition

Each petition for reimbursement pursuant to M.G.L. c. 21E, s. 10(b)(2) and 310 CMR 40.1261 shall be submitted to the Department within 90 days of the date of completion of compliance with such order.

40.1264:   Grounds for Reimbursement

The Department may grant the petition, or a portion thereof, if the Department is persuaded that the person to whom the Department has issued such order has complied with the terms thereof, and:

(1)   either was not liable under M.G.L. c. 21E or was entitled to the benefits of an affirmative defense or limitation on liability set forth in M.G.L. c. 21E or in any other applicable law; and

(2)   the costs for which reimbursement are sought are for compliance with the order and were incurred reasonably and in good faith.

40.1265:   Petitions not Subject to M.G.L. c. 30A

The refusal by the Department to grant all or part of a petition for reimbursement filed pursuant to M.G.L. c. 21E, s. 10(b)(2), and 310 CMR 40.1261 shall not be an adjudicatory proceeding and shall not be subject to those provisions of M.G.L. c. 30A, 310 CMR 1.00 or any other law governing adjudicatory proceedings.