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40.0400:   Preliminary Response Actions and Risk Reduction Measures

 

      310 CMR 40.0401 through 40.0499, cited collectively as 310 CMR 40.0400, set forth requirements and procedures for Preliminary Response Actions and risk reduction measures.

 

40.0401:   Purpose and Scope

 

      The purpose of 310 CMR 40.0400 is to describe the nature and extent of Preliminary Response Actions that are undertaken at a site or vessel following a release or the discovery of a release or a threat of release of oil and/or hazardous material, and to prescribe standards and procedures for conducting Immediate Response Actions, Release Abatement Measures, and Utility-related Abatement Measures, whether they are conducted as part of a Preliminary Response Action or at any other time.

 

40.0402:   Applicability

 

      The provisions of 310 CMR 40.0400 apply to releases and threats of release of oil and/or hazardous material that require reporting to the Department under the provisions of 310 CMR 40.0300.  No provision of 310 CMR 40.0400 shall limit the authority 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.

 

40.0403:   Responses to Releases and Threats of Release

 

(1)   Response actions shall be taken by RPs, and may be taken by PRPs and Other Persons, to assess and, where necessary, remediate all releases and threats of release of oil and/or hazardous material to the environment.

 

 

(2)   The nature, extent and timing of response actions shall be dependent upon the type(s) and amount(s) of oil and/or hazardous material released or threatening to be released, site conditions, and the proximity and sensitivity of human and environmental receptors.

 

(3)   Preliminary Response Actions, as described in 310 CMR 40.0405, shall be conducted within the one year period following the earliest date specified in 310 CMR 40.0404(3).  Preliminary Response Actions may be sufficient for complete evaluation and/or remediation of localized or uncomplicated releases and threats of release at some sites, and shall consist of:

(a)   Initial Site Investigation Activities, as described in 310 CMR 40.0405(1), up to and including those activities required  for preparation of a Phase I Report, if necessary, as described in 310 CMR 40.0480; and

(b)   where required, one or more Immediate Response Actions, as described in 310 CMR 40.0410, or, where appropriate, one or more Release Abatement Measures, as described in 310 CMR 40.0440.

 

(4)   Comprehensive Response Actions, as described in 310 CMR 40.0800, shall be undertaken whenever a Permanent Solution, as described in 310 CMR 40.1000, is not achieved at a site based upon Preliminary Response Actions.

 

(5)   A Permanent Solution Statement, as described in 310 CMR 40.1000, shall be submitted to the Department at the conclusion of response actions conducted at a site pursuant to 310 CMR 40.0000.  A Permanent Solution Statement may be submitted for one or more releases or threats of release at a site, disposal site, or portion of a disposal site.

 

40.0404:   Timing of Response Actions

 

(1)   RPs and any other persons conducting response actions shall initiate, implement, and complete those response actions described in 310 CMR 40.0400 within the time frames specified in 310 CMR 40.0400 and/or any Interim Deadlines specified by the Department pursuant to 310 CMR 40.0167.

 

(2)   RPs and any other persons conducting response actions shall submit all required plans, status reports, completion reports, and other required response action documentation described in 310 CMR 40.0400 within the time frames specified in 310 CMR 40.0400 and/or any Interim Deadline specified by the Department pursuant to 310 CMR 40.0167.

 

(3)   Except for notifications retracted pursuant to the provisions of 310 CMR 40.0335, a Permanent Solution  Statement or Tier Classification Submittal shall be received by the Department within one year of the earliest following dates:

(a)   the date that oral notification is received by the Department from any person listed at 310 CMR 40.0331 of a release or threat of release that requires notification pursuant to the "two Hour" or "72 Hour" notification provisions of 310 CMR 40.0311 through 40.0314;

(b)   the date that written notification is received by the Department from any person listed at 310 CMR 40.0331 of a release that requires notification pursuant to the "120 Day" notification provisions of 310 CMR 40.0315; or

(c)   the date that the Department issues a Notice of Responsibility to any person listed at 310 CMR 40.0331 specifying that they are an RP or PRP for a release or threat of release that requires a response action pursuant to 310 CMR 40.0400.

 

(4)   Remedial actions shall not be undertaken or continued at any site by any person until that person provides notification to the Department of their knowledge of any releases or threats of release that meet one or more sets of notification criteria specified in 310 CMR 40.0300, except for:

(a)   Limited Removal Actions undertaken in compliance with the provisions of 310 CMR 40.0318;

(b)   time-critical Immediate Response Actions undertaken to address a release or threat of release of oil and/or hazardous material pursuant to the provisions of 310 CMR 40.0332 and 310 CMR 40.0421;

(c)   the limited excavation of contaminated soil associated with the closure of an Underground Storage Tank system, as specified at 310 CMR 40.0421(3); or

(d)   time-critical Utility-related Abatement Measures undertaken to prevent or abate an immediate and substantial danger to public safety, as specified in 310 CMR 40.0462(3).

 

(5)   Releases and/or threats of release that occur at a disposal site after Tier Classification of that disposal site shall not be subject to the one year time frames specified in 310 CMR 40.0404(3), provided that response actions are being conducted at the disposal site in compliance with the provisions of 310 CMR 40.0000, including, where appropriate, the submission of all necessary Immediate Response Action Plans, Status Reports, and Completion Statements.

 

40.0405:   Overview of Preliminary Response Actions

 

(1)   Initial Site Investigation Activities.

(a)   Initial Site Investigation Activities shall consist of limited investigative and assessment actions of sufficient scope and level of effort to make and/or guide determinations on required and appropriate response actions at a site.  Initial Site Investigation Activities may include, without limitation:

1.   evaluation of records relating to the release, threat of release or impacted site;

2.   evaluation of underground storage tank testing results;

3.   testing and/or retesting of underground storage tanks;

4.   evaluation of environmental monitoring data;

5.   limited sampling and analysis of soil, sediment, groundwater, surface water, soil gas, indoor air or ambient air; and

6.   any other limited investigations, monitoring, surveys, testing or information gathering activities necessary to evaluate releases and threats of release of oil and/or hazardous material, excluding removal and containment actions.

(b)   The objective of Initial Site Investigation Activities is to obtain preliminary information and data on a release, a threat of release and/or site in order to:

1.   determine the existence, source, nature and approximate extent of the release or threat of release;

2.   determine if the release or threat of release poses or could pose an Imminent Hazard, as described in 310 CMR 40.0321;

3.   determine if an Immediate Response Action is necessary, as described in 310 CMR 40.0412;

4.   determine if a Limited Removal Action is appropriate at the site, as described in 310 CMR 40.0318;

5.   determine if a Release Abatement Measure is appropriate at the site, as described in 310 CMR 40.0440;

6.   identify persons who are responsible or potentially responsible for the release or threat of release;

7.   obtain, assemble and record information and data needed to evaluate the release or threat of release; and

8.   determine if a demonstration can readily be made that a condition of No Significant Risk exists or has been achieved at the site, before or after the completion of a Limited Removal Action, Immediate Response Action, or Release Abatement Measure.

(c)   The results of Initial Site Investigation Activities shall:

1.   be used to support a Permanent Solution Statement at the conclusion of Preliminary Response Actions; or

2.   be used as the basis for a Phase I Report, as described in 310 CMR 40.0480, whenever a Permanent Solution Statement is not filed for a site within one year of the initial notification to the Department of a release or threat of release at the site by any person listed at 310 CMR 40.0331.

(d)   When used to support a Permanent Solution Statement, the results of Initial Site Investigation Activities shall be reported in a response action report or in a Phase I Report, pursuant to 310 CMR 40.0481, and shall contain all information, data, records and documents necessary for that purpose.

(e)   Assessment activities conducted at a site prior to Tier Classification, as described in 310 CMR 40.0500, shall not require approval from the Department. 

 

(2)   Immediate Response Actions

(a)   Immediate Response Actions are assessment and/or remedial actions that shall be undertaken in an expeditious manner to address sudden releases, Imminent Hazards and other time-critical release or site conditions.  Immediate Response Actions shall be taken whenever and wherever timely actions are required to assess, eliminate, abate or mitigate adverse or unacceptable release, threat of release and/or site conditions, as set forth in 310 CMR 40.0412.

(b)   Except as provided in 310 CMR 40.0420(12), remedial actions conducted as part of an Immediate Response Action require prior approval from the Department.

 

(3)   Release Abatement Measures. Release Abatement Measures are remedial actions that may be voluntarily undertaken by persons conducting response actions at disposal sites.  The purposes of Release Abatement Measures are to remediate limited or localized releases, and/or to mitigate the impacts of larger releases until such time as more comprehensive remedial actions can be instituted at the disposal site, in accordance with 310 CMR 40.0800.

 

40.0406:   Possible Outcomes of Preliminary Response Actions

 

(1)   Within the one year time period specified in 310 CMR 40.0404(3), one of the following actions shall be taken by RPs, and may be taken by PRPs or Other Persons:

(a)   a Permanent Solution Statement shall be submitted to the Department, as described in 310 CMR 40.1000, indicating that assessment and/or remedial actions taken at the site have resulted in a Permanent Solution; or

(b)    a Phase I Report and Tier Classification Submittal shall be submitted to the Department, in accordance with the provisions of 310 CMR 40.0500, indicating that a Comprehensive Response Action will be undertaken at the site.

 

(2)   Permanent Solution Statements submitted to the Department at the conclusion of Preliminary Response Actions, and prior to Tier Classification, shall be accompanied by the Permanent Solution fee specified in 310 CMR 4.00:  Timely Action Schedule and Fee Pro-visions, unless the Permanent Solution Statement is received by the Department within 120 days following the earliest date computed pursuant to 310 CMR 40.0404(3).

 

40.0410:   Immediate Response Actions

 

      310 CMR 40.0411 through 40.0429, cited collectively as 310 CMR 40.0410, set forth requirements and procedures for conducting Immediate Response Actions.

 

40.0411:   General Provisions for Immediate Response Actions

 

(1)   Immediate Response Actions shall assess release, threat of release and/or site conditions and, where appropriate, contain, isolate, remove or secure a release or threat of release of oil and/or hazardous material in order to:

(a)   abate, prevent or eliminate an Imminent Hazard to health, safety, public welfare or the environment; and/or

(b)   respond to other time-critical release, threat of release and/or site conditions.

 

(2)   Any person who performs an Immediate Response Action shall do so in accordance with all applicable requirements and specifications prescribed in 310 CMR 40.0000.  Except when specifically exempted by the Department due to the Department's level of involvement in the oversight of the Immediate Response Action, RPs, PRPs and Other Persons conducting Immediate Response Actions shall engage or employ the services of a Licensed Site Professional.

 

(3)   The Department may make a determination that an Immediate Response Action involving assessment, containment and/or removal actions is needed at any site, consistent with the provisions of 310 CMR 40.0412.  In such cases, the Department shall inform the RP or PRP of the need for, and scope of, response actions.  When informing the RP or PRP would unacceptably delay the conduct of the Immediate Response Action, or when the RP or PRP is unable or unwilling to conduct the required actions, or otherwise fails to act in a timely manner, the Department may undertake the Immediate Response Action. 

 

(4)   Immediate Response Actions shall not, to the extent practicable, prevent or impede the implementation of future response actions.

 

(5)   Immediate Response Actions shall be conducted in compliance with all applicable local, state and federal permitting and approval requirements.

 

(6)   Health and safety procedures consistent with the provisions of 310 CMR 40.0018 shall be implemented at sites where an Immediate Response Action is being conducted.

 

(7)   RPs, PRPs and Other Persons undertaking response actions under the provisions of 310 CMR 40.0000 shall continually assess and evaluate release and site conditions in order to determine if an Immediate Response Action is required. 

 

(8)   RPs, PRPs or Other Persons conducting an Immediate Response Action that involves a remedial action(s) to prevent, control, or eliminate an Imminent Hazard or address a Critical Exposure Pathway shall comply with the provisions of 310 CMR 40.1403(11) for notifying Affected Individuals.

 

40.0412:   Sites Where an Immediate Response Action is Required

 

      Immediate Response Actions shall be conducted at the following sites:

 

(1)   sites or vessels where a release or threat of release of oil and/or hazardous material has occurred which requires notification to the Department under the "Two Hour" notification provisions of 310 CMR 40.0311 or 40.0312;

 

(2)   sites where a release or threat of release of oil and/or hazardous material has occurred which requires notification to the Department under the "72 Hour" notification provisions of 310 CMR 40.0313 or 40.0314;

 

(3)   sites where a release of oil and/or hazardous material has resulted in conditions which have been determined to pose an Imminent Hazard pursuant to 310 CMR 40.0950; and

 

(4)   any other site or vessel where the Department determines that immediate or accelerated response actions are necessary to prevent, eliminate, or minimize damage to health, safety, public welfare or the environment.

 

40.0414:   Scope and Types of Immediate Response Actions

 

(1)   At a minimum, Immediate Response Actions shall involve the assessment of the release or threat of release and/or site conditions described in 310 CMR 40.0412.  The nature and extent of assessment actions taken as an Immediate Response Action shall be commensurate with the type and amount of oil and/or hazardous material released or threatening to be released, site complexity, and the sensitivity of site and surrounding human and environmental receptors, and shall be adequate and sufficient for determining:

(a)   the degree of hazard posed by the release, threat of release and/or site conditions;

(b)   whether remedial actions are required at the site prior to the completion of a Phase IV Remedy Implementation Plan, as described in 310 CMR 40.0870; and

(c)   where appropriate, the nature, extent, and timing of any required removal or containment actions.

 

(2)   Immediate Response Actions shall be presumed to require the initiation of one or more containment or removal actions.  Except as provided in 310 CMR 40.0414(3) through  40.0414(5), the presumption for containment and/or removal actions may be rebutted, however, by the RP, PRP or Other Person conducting response actions, based upon a showing by a preponderance of the evidence that:

(a)   the release, threat of release and/or site conditions do not present an Imminent Hazard, either at the present time or for the time period that is likely to be required for the implementation and/or completion of Comprehensive Response Actions; and

(b)   the unmitigated migration of oil and/or hazardous material at the site, at present and for the time period that is likely to be required for the implementation and/or completion of Comprehensive Response Actions, is not likely to:

1.   substantially increase the extent, area, or magnitude of environmental contamination;

2.   substantially increase the degree or complexity of future remedial actions;

3.   substantially increase cleanup costs; or

4.   otherwise result in a substantial hazard to health, safety, public welfare or the environment.

 

(3)   Immediate Response Actions shall be presumed to require the elimination and/or mitigation of Critical Exposure Pathways, which are defined in 310 CMR 40.0006.  This presumption may be rebutted, however, by the RP, PRP or Other Person conducting response actions, based upon a showing by a preponderance of the evidence that:

(a)   the Critical Exposure Pathway(s) does not present an Imminent Hazard, either at present or for the time period that is likely to be required for the implementation and/or completion of Comprehensive Response Actions;

(b)   it is not feasible to eliminate the Critical Exposure Pathway(s); and

(c)   in cases where it is not feasible to eliminate the Critical Exposure Pathway(s), it is not feasible to mitigate the Critical Exposure Pathway(s).

 

(4)   Immediate Response Actions shall be presumed to require the prevention and/or mitigation of Critical Exposure Pathways, which are defined in 310 CMR 40.0006.  This presumption may be rebutted, however, by the RP, PRP or Other Person conducting response actions, based upon a showing by a preponderance of the evidence, that: 

(a)   the Critical Exposure Pathway(s) does not present an Imminent Hazard, either at present or for the time period that is likely to be required for the implementation and/or completion of Comprehensive Response Actions;

(b)   it is not feasible to prevent the Critical Exposure Pathway(s); and

(c)   in cases where prevention is not feasible, it is not feasible to mitigate the Critical Exposure Pathway(s).

 

(5)   Immediate Response Actions shall be presumed to require the prevention of impact(s) to public water supplies at sites where such impact is likely to occur within the time period that is likely to be required for the implementation and/or completion of Comprehensive Response Actions.  This presumption may be rebutted, however, by the RP, PRP or Other Person conducting response actions, based upon a showing by a preponderance of the evidence that:

(a)   it is unlikely that the site will present impact(s) to the public water supply, for the time period that is likely to be required for the implementation and/or completion of Comprehensive Response Actions;

(b)   it is not feasible to prevent the impact(s) to the public water supply; and

(c)   in cases where prevention is not feasible, it is not feasible to mitigate the impact(s) to the public water supply.

 

(6)   Immediate Response Actions may include:

(a)   preparation of technical reports or memoranda documenting why accelerated removal or containment actions are or are not required;

(b)   an assessment of whether an Imminent Hazard to health, safety, public welfare or the environment exists at the site;

(c)   collection and assessment of soil, sediment, surface water, groundwater, soil gas, or atmospheric or indoor air samples;

(d)   assessment of the validity of underground storage tank testing results;

(e)   assessment of the need to take timely actions to prevent releases from occurring at a site where a threat of release has been identified;

(f)   installation of fences, warning signs, including, where appropriate, multilingual and symbolic signs, and/or the institution of other security or site control measures;

(g)   installation of drainage controls;

(h)   construction or stabilization of berms, dikes or impoundments;

(i)   temporary covering or capping of contaminated soils or sludges;

(j)   installation of waste or product recovery and groundwater treatment systems or soil vapor extraction systems;

(k)   removal of contaminated soils;

(l)   removal of the contents of, or removal of, drums, barrels, tanks or other bulk containers which contain or may contain oil and/or hazardous material;

(m)   temporary evacuation or relocation of residents from the site and/or surrounding area;

(n)     provision of temporary alternative water supplies;

(o)   installation of a sub-slab soil gas depressurization system beneath an occupied structure; or

(p)   any other assessment, containment or removal action consistent with the purpose and scope of an Immediate Response Action or otherwise deemed necessary by the Department.

 

(7)   A cap or engineered barrier that is constructed in accordance with the performance standards contained in 310 CMR 40.0996(5) as an Immediate Response Action will not be considered part of a Permanent Solution at a disposal site, unless and until a Phase III is performed pursuant to the provisions of 310 CMR 40.0850 demonstrating the lack of a feasible alternative.

 

40.0420:   Requirements, Approvals, and Time Lines for Conducting Immediate Response Actions

 

(1)   Immediate Response Actions shall be taken by RPs, and may be taken by PRPs or Other Persons, in response to all releases and threats of release described in 310 CMR 40.0412.

 

(2)   Immediate Response Actions shall be conducted in compliance with all applicable provisions and time lines specified in 310 CMR 40.0400, and in compliance with any response action requirements deemed necessary by the Department and/or specified by the Department in its approval of Immediate Response Action Plans.

 

(3)   RPs, PRPs and Other Persons shall communicate to the Department their intentions to conduct Immediate Response Actions which are required pursuant to 310 CMR 40.0412. Such communication shall be provided orally to the Department on the earliest of the following dates:

(a)   at the time an RP, PRP, or Other Person is providing oral notification to the Department of a "Two Hour" or "72 Hour" release or threat of release described in 310 CMR 40.0311 through 40.0314;

(b)   at the time a person is orally informed by the Department that they are an RP or PRP for a site at which an Immediate Response Action is required pursuant to 310 CMR 40.0412;

(c)   within 72 hours of the time a person receives a Notice of Responsibility from the Department indicating that they are an RP or PRP for a site at which an Immediate Response Action is required pursuant to 310 CMR 40.0412; or

(d)   within an Interim Deadline specified by the Department pursuant to 310 CMR 40.0167.

 

(4)   When orally communicating to the Department their intentions to conduct an Immediate Response Action, RPs, PRPs or Other Persons shall inform the Department:

(a)    whether or not the RP, PRP or Other Person intends to conduct an Immediate Response Action in the time period and manner warranted by the release, threat of release and/or site conditions,  in compliance with all applicable provisions of 310 CMR 40.0400, and in compliance with any specific response action requirements which have been communicated to them by the Department;

(b)   whether the Immediate Response Action will involve the implementation of remedial actions; and

(c)   if remedial actions are proposed, details on the nature and extent of such actions.

 

(5)   Upon review and consideration of the oral communication provided by the RP, PRP or Other Person, DEP shall orally approve, deny, or conditionally approve:

(a)   the details of remedial actions proposed at the time of such communication, in cases where the Immediate Response Action will involve removal or containment actions; or

(b)   a recommendation that remedial actions are not required at the time of such communication, in cases where the Immediate Response Action will involve assessment actions only. 

 

(6)   Except as provided in 310 CMR 40.0421, approval from the Department shall be required prior to the implementation of an Immediate Response Action, or significant modification of a previously approved Immediate Response Action that involves remedial actions.  Such approval may be granted orally by the Department in situations where there has been a sudden release of oil and/or hazardous material, where there exists a threat of release of oil and/or hazardous material, and in other cases where written approval would delay the timely implementation of an Immediate Response Action.  Where time permits, and in situations where the Department declines to provide oral approval, RPs, PRPs, and Other Persons shall seek approval to conduct Immediate Response Actions by submittal to the Department of an Immediate Response Action Plan pursuant to the provisions of 310 CMR 40.0420(7) and 40.0424.

 

(7)   Except as provided at 310 CMR 40.0420(8), and without regard to whether oral approval was given by the Department to conduct or initiate Immediate Response Actions, RPs and other persons conducting response actions shall submit to the Department an Immediate Response Action Plan, within the earliest of the following time periods:

(a)   within 60 days of providing oral notification to the Department of those "Two Hour" or "72 Hour" releases or threats of release specified in 310 CMR 40.0311 through 40.0314;

(b)   within 60 days of orally communicating to the Department knowledge of a Condition of Substantial Release Migration at a disposal site;

(c)   within 60 days of the date that the Department issues a Notice of Responsibility indicating that they are an RP or PRP for a site at which an Immediate Response Action is required pursuant to 310 CMR 40.0412; or

(d)   within a time period established by the Department as an Interim Deadline in accordance with 310 CMR 40.0167.

 

(8)   Submission to the Department of an Immediate Response Action Plan is not required  if an Immediate Response Action Completion Report, as described in 310 CMR 40.0427, or a Permanent Solution Statement, as described in 310 CMR 40.1000, is received by the Department by the due date of the Immediate Response Action Plan.

 

(9)   All written Immediate Response Action Plans submitted to the Department  shall be approved, conditionally approved, or denied by the Department in writing within 21 days of receipt.  Approval of such plan shall be presumed if the Department does not issue a written approval or denial of said plan within 21 days of receipt.  Immediate Response Actions that had previously been orally approved by the Department shall continue during this review period.

 

(10)   In approving an Immediate Response Action Plan, the Department may specify conditions of approval, including, but not limited to:

(a)   the role of the Department in overseeing or conducting various elements of the Immediate Response Action;

(b)   Interim Deadlines for one or more elements of the Immediate Response Action; or

(c)   submittal requirements for one or more elements of the Immediate Response Action.

 

(11)   RPs, PRPs and Other Persons conducting Immediate Response Actions shall do so in conformance with all conditions and deadlines of any oral or written approval granted by the Department pursuant to 310 CMR 40.0420.

 

(12)   Approval from the Department shall not be required to conduct or initiate Immediate Response Actions that consist solely of the construction of a fence and/or the posting of signs, provided the Department is informed of such actions in the next required response action submittal.

 

(13)   Presumptive approval of an Immediate Response Action Plan pursuant to 310 CMR 40.0420(9) means the RP, PRP or Other Person has approval to proceed with Immediate Response Actions in compliance with all applicable provisions of 310 CMR 40.0000.  Such presumptive approval shall not be construed as approval by the Department of the scope or adequacy of plans or of the response actions as actually conducted, or as forgiveness of non-compliance with any provision of 310 CMR 40.0000.

 

40.0421:   Immediate Response Actions That Do Not Require Prior Approval From the Department

 

(1)   Except where specifically prohibited in writing by the Department, assessment activities may be conducted at any site without prior notice to or approval from the Department to conduct such activities.

 

(2)   Prior notice to and approval from the Department shall not be required to conduct or initiate remedial actions in those cases where the delay involved in notifying and obtaining approval from the Department would substantially exacerbate release or site conditions or endanger health, safety, public welfare or the environment.  Immediate Response Actions conducted or initiated under such circumstances may include, without limitation, containment and/or removal actions that are undertaken:

(a)   immediately after a sudden release of oil and/or hazardous material;

(b)   immediately after the discovery of a release to prevent, abate or eliminate an Imminent Hazard; or

(c)   immediately after the discovery of a threat of release, in order to prevent a release from occurring.

      Persons conducting or initiating remedial actions under the provisions of 310 CMR 40.0421(2) shall notify the Department of those remedial actions undertaken and needed to be taken at the site as soon as possible, and not later than 24 hours after commencement thereof.

 

(3)   Prior notice to and approval from the Department shall not be required to excavate and stockpile up to 100 cubic yards (cumulative for the disposal site of concern) of soils contaminated by a release of oil or waste oil at concentrations or quantities that meet one or more of the sets of criteria specified in 310 CMR 40.0313, and resulting from the closure of an Underground Storage Tank, provided:

(a)   site conditions do not pose an Imminent Hazard to human health, safety, public welfare, or the environment;

(b)   contaminated soils are managed in conformance with the provisions of 310 CMR 40.0030;

(c)   notification is provided to the Department within the time frames required by 310 CMR 40.0332, specifying the nature and extent of soil removal activities; and

(e)   appropriate Immediate Response Actions are initiated subsequent to notification, in conformance with all provisions of 310 CMR 40.0420.

 

40.0424:   Immediate Response Action Plans

 

(1)   An Immediate Response Action Plan shall contain the following:

(a)   the name, address, telephone number and relationship to the site of the person assuming responsibility for conducting the Immediate Response Action;

(b)   a description of the release or threat of release, site conditions and surrounding receptors;

(c)   a description of any Immediate Response Actions undertaken to date at the site;

(d)   the reason why an Immediate Response Action is required;

(e)   the objective(s), specific plan(s) and proposed schedule for the Immediate Response Action, including, as appropriate, plans and/or sketches of the site and any proposed investigative and/or remedial installations;

(f)   a statement as to whether Remediation Waste will be excavated, collected, stored, treated or re-used at the site;

(g)   where appropriate, a proposed environmental monitoring plan, for implementation during and/or after the Immediate Response Action;

(h)   a listing of federal, state or local permits that will likely be needed to conduct the Immediate Response Action;

(i)   except as exempted pursuant to 310 CMR 40.0411(2), the seal and signature of the Licensed Site Professional who prepared the Immediate Response Action Plan; and

(j)   such other information as the Department may deem appropriate and necessary, based on site specific conditions, in order to review and evaluate the Immediate Response Action Plan in question.

 

(2)   An Immediate Response Action Plan shall be updated and modified, if necessary, based upon the acquisition and evaluation of significant new information and data on release, threat of release and/or site conditions.  Each significant modification of an Immediate Response Action Plan shall be resubmitted to the Department for review and approval.

 

(3)   Immediate Response Action Plans shall be submitted to the Department using a transmittal form established by the Department for such purposes.

 

40.0425:   Immediate Response Action Status and Remedial Monitoring Reports

 

(1)   Unless otherwise specified in writing by the Department, a person conducting Immediate Response Actions shall submit a written Status Report to the Department 120 days after the date on which that person first communicated to the Department his or her intention to conduct that Immediate Response Action.

 

(2)   Except as provided in 310 CMR 40.0425(5), following submission of the first such Status Report, additional Status Reports shall be submitted to the Department every six months thereafter, until such time as an Immediate Response Action Completion Report is submitted to the Department, as described in 310 CMR 40.0427.  Each Status Report shall document Immediate Response Action activities occurring over the period of time since the previously submitted Status Report.

 

(3)   Immediate Response Action Status Reports shall contain, at a minimum, the following information:

(a)   the status of assessment and/or remedial actions;

(b)   any significant new site information or data;

(c)   details of and/or plans for the management of Remediation Waste, Remedial Waste-water and/or Remedial Additives;

(d)   any other information required by the Department in its approval of the Immediate Response Action Plan; and

(e)   an LSP Opinion as to whether the Immediate Response Action is being conducted in conformance with the Immediate Response Action Plan and any conditions of approval established by the Department.

 

(4)   Status Reports shall not be required for sites where an Immediate Response Action Completion Report or a Permanent Solution Statement is received by the Department prior to the date on which the first Status Report is required pursuant to 310 CMR 40.0425(1).

 

(5)   Where Immediate Response Actions are being undertaken solely to eliminate, mitigate, or prevent a Critical Exposure Pathway that does not pose an Imminent Hazard with the use of an Active Exposure Pathway Mitigation Measure, Status Reports shall be submitted to the Department as follows:

(a)   Status Reports shall be submitted  at the frequency specified in 310 CMR 40.0425(2) unless and until a Status Report containing the following information is submitted:

1.   Results of sampling demonstrating the Active Exposure Pathway Mitigation Measure is effectively maintaining, at a minimum, a condition of No Significant Risk for the Receptors of Concern;

2.   A listing of the specific system conditions, operating parameters, and/or maintenance necessary for ensuring the ongoing effectiveness of the Active Exposure Pathway Mitigation Measure in maintaining a condition of No Significant Risk for the Receptors of Concern;

3.   A description of a monitoring program designed to ensure the ongoing effectiveness of the Active Exposure Pathway Mitigation Measure in maintaining a condition of No Significant Risk for the Receptors of Concern; and

4.   An LSP Opinion supporting a reduced reporting schedule pursuant to 310 CMR 40.0425(5)(b) as being adequate to document the ongoing Immediate Response Actions.

(b)   Once the IRA Status Report outlined in 310 CMR 40.0425(5)(a) has been submitted, the frequency at which IRA Status Reports shall be submitted to the Department may be reduced to annually thereafter, until such time as an IRA Completion Report is submitted to the Department, as outlined in 310 CMR 40.0427.

(c)   Notwithstanding the provisions of 310 CMR 40.0425(5), any person conducting response actions pursuant to this section that rely on an Active Exposure Pathway Mitigation Measure, who has knowledge of the failure of the Measure to effectively maintain a condition of No Significant Risk and/or the need to substantially modify such Measure, shall provide a modified IRA Plan to the Department pursuant to 310 CMR 40.0424(2) within 30 days of obtaining such knowledge.  Such IRA Plan shall include plans and a timetable to correct failures and/or to implement modifications.   

(d)   Notwithstanding any provision to the contrary, the Department may establish Interim Deadlines and alternate schedules for the submission of Status Reports for IRAs addressing Critical Exposure Pathways.

 

(6)   Immediate Response Action Status Reports shall be submitted to the Department using a transmittal form established by the Department for such purposes.

 

(7)   For a disposal site where Active Operation and Maintenance of a remedial action is being conducted as part of an Immediate Response Action, in addition to and/or in conjunction with the submittal of IRA Status Reports, 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)   except as provided in 310 CMR 40.0425(7)(c), when an Immediate Response Action includes Active Operation and Maintenance of a remedial action to address an Imminent Hazard or Condition of Substantial Release Migration, with the first IRA Status Report and monthly thereafter.  In such cases where Active Operation and Maintenance of a remedial action is initiated after the submittal of the first IRA Status Report, the initial Remedial Monitoring Report shall be submitted on the monthly anniversary of the submittal of the first IRA Status Report;

(b)   except as provided in 310 CMR 40.0425(7)(c), when an Immediate Response Action includes Active Operation and Maintenance of a remedial action to address conditions that do not pose an Imminent Hazard or Condition of Substantial Release Migration, with the first IRA Status Report and every six months thereafter.  In such cases where Active Operation and Maintenance of a remedial action is initiated after the submittal of the first IRA Status Report, the initial Remedial Monitoring Report shall be submitted on the next six-month anniversary of the submittal of the first IRA Status Report.

(c)   where IRA Status Reports are submitted annually pursuant to 310 CMR 40.0425(5)(b),  Remedial Monitoring Reports shall be submitted with the annual IRA Status Reports. 

(d)   Notwithstanding any provision to the contrary, the Department may establish Interim Deadlines and alternate schedules for the submission of Remedial Monitoring Reports.

 

40.0426:   Imminent Hazard Evaluations

 

(1)   An Imminent Hazard Evaluation shall be performed as part of an Immediate Response Action at sites where a release or threat of release could pose an Imminent Hazard to human health, safety, public welfare, or the environment, as described in 310 CMR 40.0321(2), and may be performed at sites where a release or threat of release is deemed to pose an Imminent Hazard, as described in 310 CMR 40.0321(1).

 

(2)   Unless otherwise specified in writing by the Department, RPs, PRPs and Other Persons conducting Immediate Response Actions at a site where a release or threat of release could pose an Imminent Hazard to human health, as described in 310 CMR 40.0321(2), shall initiate an Imminent Hazard Evaluation within 14 days of obtaining knowledge of such a condition, and shall submit to the Department, within 60 days of obtaining knowledge of such a condition:

(a)   an LSP Opinion as to whether an Imminent Hazard to human health actually exists at the site, as described in 310 CMR 40.0950; or 

(b)   when such an Opinion cannot yet be made, an LSP Opinion:

1.   describing the investigative efforts that have been made and remain to be taken in order to determine whether an Imminent Hazard to human health actually exists at the site, as well as a timetable for the remaining activities; or

2.   proposing a plan to undertake removal and/or containment actions at the site to address those conditions that could pose an Imminent Hazard to human health.

 

 

(3)   Unless otherwise specified in writing by the Department, RPs, PRPs, or Other Persons conducting response actions at sites where a release or threat of release could pose an Imminent Hazard to safety, public welfare, or the environment shall initiate an Imminent Hazard Evaluation within 14 days of obtaining knowledge of such a condition, and shall submit to the Department, within 60 days of obtaining knowledge of such a condition:

(a)   an LSP Opinion as to whether an Imminent Hazard to safety, public welfare, or the environment actually exists at the site; or 

(b)   when such an Opinion cannot yet be made, an LSP Opinion:

1.   describing the investigative efforts that have been made and remain to be taken in order to determine whether an Imminent Hazard to safety, public welfare, or the environment actually exists at the site, as well as a timetable for the remaining activities; or

2.   proposing a plan to undertake removal and/or containment actions at the site to address those conditions that could pose an Imminent Hazard to safety, public welfare, or the environment.

 

(4)   RPs, PRPs and Other Persons conducting Immediate Response Actions at a site where a release or threat of release poses or could pose an Imminent Hazard, as specified in 310 CMR 40.0321 and 40.0950, shall keep the Department informed as to the progress being made in addressing and/or abating the Imminent Hazard, in report submittals made as part of the Immediate Response Action Status Reports, or in accordance with a reporting frequency and procedure established by the Department as part of its approval of the Immediate Response Action Plan.

 

(5)   Imminent Hazard Evaluations shall be submitted to the Department using a transmittal form established by the Department for such purposes.

 

(6)   Active remedial systems and/or continuing response actions required and/or approved by the Department to address an Imminent Hazard condition at a site shall not be terminated by the RP, PRP, or Other Person conducting Immediate Response Actions until such time as response objectives and/or approval conditions have been met, and until approval to do so has been obtained from the Department.  All requests to terminate such actions shall be submitted to the Department using a transmittal form established by the Department for such purposes, and shall contain data, documentation, and technical information sufficient to justify cessation of such actions.  Approval to terminate such actions shall be presumed if the Department does not issue a written approval or denial of such a request within 21 days of receipt of the same.

 

40.0427:   Immediate Response Action Completion Reports

 

(1)   An Immediate Response Action shall be considered complete when the release, threat of release and/or site conditions which give rise to the need for that Immediate Response Action, as described in 310 CMR 40.0412, have been assessed and, where necessary, remediated in a manner and to a degree that will ensure, at a minimum:

(a)   the accomplishment of any necessary stabilization of site conditions;

(b)   the elimination or control of any Imminent Hazards to health, safety, public welfare and the environment, without the continued operation and maintenance of Active Remedial Systems or Active Exposure Pathway Mitigation Measures or the incorporation of ongoing response actions to eliminate or control the Imminent Hazard into the Phase IV Remedy Implementation Plan for the disposal site; and

(c)   the completion of time-critical measures addressing the elimination, prevention or mitigation of Critical Exposure Pathway(s)  as documented with an LSP Opinion concluding that:

1.   the Critical Exposure Pathway(s) have been eliminated using passive measures;

2.   a feasibility study, as specified at 310 CMR 40.0414(3) and (4), supports the conclusion that it is not feasible to eliminate, prevent, or mitigate the Critical Exposure Pathway(s);

3.   a  feasibility study, conducted as part of a Phase III evaluation of Comprehensive Remedial Alternatives as specified in 310 CMR 40.0860, supports the conclusion that it is not feasible to eliminate, prevent, or mitigate the Critical Exposure Pathway(s) as part of the Comprehensive Remedial Alternative; or

4.   mitigation of Critical Exposure Pathway(s) is continuing by incorporation of ongoing response actions to address the Critical Exposure Pathway(s) into the Phase IV Remedy Implementation Plan for the disposal site.

 

(2)   Except as specified in 310 CMR 40.0427(3), an Immediate Response Action Completion Report shall be submitted to the Department within 60 days of completion of all assessment, containment and/or removal actions conducted as part of the Immediate Response Action.

 

(3)   An Immediate Response Action Completion Report shall not be required for sites where a Permanent Solution Statement, as described in 310 CMR 40.1000, is submitted to the Department by an RP, PRP, or Other Person within 120 days of first informing the Department of the need to conduct an Immediate Response Action at the site, as specified in 310 CMR 40.0420(3).

 

(4)   Immediate Response Action Completion Reports shall contain, at a minimum, the following:

(a)   a description of the release or threat of release, site conditions and surrounding receptors;

(b)   a description of the work completed, including work undertaken in response to any conditions of approval imposed by the Department, and any work undertaken at the site that was not included in the scope of the Immediate Response Action Plan, where submitted;

(c)   all investigatory and monitoring data obtained during the implementation of the Immediate Response Action;

(d)   a succinct statement on the findings and conclusions of the Immediate Response Action;

(e)   details and documentation on the management of any Remediation Waste, Remedial Wastewater and/or Remedial Additives managed at the site as part of the Immediate Response Action;

(f)   a description of any ongoing activities related to the Immediate Response Action that will be conducted at the site, including monitoring activities, security measures and the maintenance of fences, caps and other passive systems; and

(g)   a description of any ongoing activities related to the Immediate Response Action that will be conducted at the site as part of Comprehensive Response Actions.

 

(5)   Immediate Response Action Completion Reports shall be submitted to the Department appended to a Completion Statement form established by the Department for such purposes.  The Completion Statement form shall contain:

(a)   except as exempted pursuant to 310 CMR 40.0411(2), an LSP Opinion on whether the Immediate Response Action was conducted in accordance with 310 CMR 40.0410, any approval conditions specified by the Department, and, where submitted, the Immediate Response Action Plan(s); and

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

 

(6)   Except as provided in 310 CMR 40.0427(7), an Immediate Response Action shall not be considered complete until all stockpiled/stored Remediation Waste generated as a result of the Immediate Response Action is removed from the site pursuant to the provisions of 310 CMR 40.0030.

 

(7)   Remediation Waste may be stored, treated, managed, disposed, recycled or reused at a site following the submission to the Department of an Immediate Response Action Completion Report and Completion Statement only if:

(a)   such actions are conducted in conformance with the provisions of 310 CMR 40.0030; and

(b)   a Release Abatement Measure Plan pursuant to the provisions of 310 CMR 40.0440 or a Remedy Implementation Plan pursuant to the provisions of 310 CMR 40.0870 is submitted to the Department as an attachment to the Immediate Response Action Completion Statement.

 

(8)   Unless otherwise directed by the Department, Immediate Response Action Completion Reports shall not require approval from the Department.

 

40.0428:   Public Involvement

 

(1)   Public Involvement Activities shall be conducted in accordance with 310 CMR 40.1400 through 40.1406.  Public Involvement Activities relevant to Immediate Response Actions may include, without limitation, those activities set forth at 310 CMR 40.1403(3)(b), (c), (f),  (5) and (9).

 

(2)   If the disposal site where the Immediate Response Action is conducted is a Public Involvement Plan Site, a Public Involvement Plan that is consistent with 310 CMR 40.1405 shall be implemented by the RP, PRP or Other Person conducting response actions at that site.

 

40.0429:   Possible Outcomes of an Immediate Response Action

 

      One or more of the following actions shall be taken by an RP, PRP or Other Person following the completion of an Immediate Response Action:

 

(1)   the filing of a Permanent Solution Statement, in accordance with the provisions of 310 CMR 40.1000;

 

(2)   the initiation of a Release Abatement Measure, in accordance with the provisions of 310 CMR 40.0440; or

 

(3)   the continuation of further Preliminary or Comprehensive Response Actions, in accordance with the provisions of 310 CMR 40.0400 or 40.0800.

 

40.0440:   Release Abatement Measures

 

      310 CMR 40.0441 through 40.0449, cited collectively as 310 CMR 40.0440, set forth requirements and procedures for conducting Release Abatement Measures.

 

40.0441:   General Provisions for Release Abatement Measures

 

(1)   Release Abatement Measures are intended to reduce risks at a disposal site and/or increase the cost effectiveness of response actions by allowing the implementation of certain accelerated remedial actions to stabilize, treat, control, minimize or eliminate releases until such time as a Permanent or Temporary Solution is achieved, as described in 310 CMR 40.1000, or until Comprehensive Remedial Actions can be implemented, as described in 310 CMR 40.0800.  Release Abatement Measures may also be used to perform an additional remedial action(s) at a site for which a Permanent or Temporary Solution Statement has been submitted, in accordance with 310 CMR 40.1067.

 

(2)   Release Abatement Measures shall be limited in scope and complexity, as described in 310 CMR 40.0442, in order to prevent adverse impacts to health, safety, public welfare or the environment that could result from the implementation of complicated or large-scale remedial actions at disposal sites where there has not been adequate assessment, evaluation, planning and/or public involvement.

 

(3)   An RP, PRP or Other Person may propose to the Department to conduct a Release Abatement Measure at a disposal site at any time following notification to the Department of a release or threat of release pursuant to 310 CMR 40.0300.

 

(4)   Any person who conducts a Release Abatement Measure shall do so in accordance with all applicable requirements and specifications prescribed in 310 CMR 40.0000.  RPs, PRPs, and Other Persons conducting Release Abatement Measures shall employ or engage a Licensed Site Professional as required by these regulations.

 

(5)   Release Abatement Measures shall comply with all local, state and federal permitting and approval requirements.

 

(6)   Health and safety procedures consistent with the provisions of 310 CMR 40.0018 shall be implemented at all sites where a Release Abatement Measure is being conducted.

40.0442:   Scope and Types of Release Abatement Measures

 

(1)   The scope and complexity of Release Abatement Measures shall be commensurate with the amount of information known about, and the degree of risk associated with, release and disposal site conditions.  A Release Abatement Measure shall not:

(a)   be implemented without a level of understanding of disposal site conditions and surrounding receptors sufficient to support the actions taken;

(b)   be continued at a disposal site where encountered oil and/or hazardous material, migration pathways, or exposure routes are substantially different from those anticipated;

(c)   be conducted in a manner that is likely to result in the exposure of surrounding human or ecological receptors to levels of oil and/or hazardous material that could pose a significant risk of harm to health, safety, public welfare or the environment, as described in 310 CMR 40.0950;

(d)   prevent or impede the implementation of likely future response actions; or

(e)   be conducted in a manner inconsistent with the Response Action Performance Standard  described in 310 CMR 40.0191.

 

(2)   Release Abatement Measures conducted in accordance with the provisions of 310 CMR 40.0442(1) may include, without limitation:

(a)   the excavation and off-site disposal of up to 500 cubic yards (cumulative, for the disposal site in question) of soil contaminated by oil and/or hazardous material at concentrations equal to or greater than applicable Reportable Concentrations, in conformance with 310 CMR 40.0030;

(b)   the excavation and on or off-site treatment, recycling or reuse of up to 1500 cubic yards (cumulative, for the disposal site in question) of soil contaminated by oil and/or hazardous material at concentrations equal to or greater than applicable Reportable Concentrations, in conformance with 310 CMR 40.0030; 

(c)   the initiation of passive or active  NAPL recovery systems that discharge to a closed container, or groundwater recovery or treatment systems that discharge Remedial Wastewater and/or Remedial Additives in accordance with 310 CMR 40.0040 to a  sewer system, POTW, Non-publicly Owned Treatment Works, surface water body, or to the ground surface or subsurface and/or groundwater; or

(d)   the implementation of a soil vapor extraction system and/or groundwater sparging system, with appropriate off-gas treatment and controls, as described in 310 CMR 40.0049.

 

(3)   Notwithstanding 310 CMR 40.0442(1)(d), Release Abatement Measures may include construction of a structure that could prevent or impede the implementation of likely response actions in the future, provided that prior to or concurrent with conducting such activities, the following are completed for the area within and adjacent to the footprint of the proposed structure in a manner that achieves the substantive technical standards set forth in 310 CMR 40.0800 and 40.0900:

(a)   a site assessment;

(b)   a risk characterization;

(c)   a feasibility evaluation;

(d)   if the Exposure Point Concentrations of contaminants under such structure exceed applicable soil Upper Concentration Limits (UCLs) specified in 310 CMR 40.0996(6), the reduction of concentrations to levels at or below UCLs to the extent feasible pursuant to 310 CMR 40.0860(4);

(e)   the elimination or control of any Source of OHM Contamination as specified in 310 CMR 40.1003(5);

(f)   the management of NAPL as specified in 310 CMR 40.1003(7)(a); and

(g)   any other remedial actions deemed necessary to ensure the eventual achievement of a level of No Significant Risk for the entire disposal site.

 

(4)   A cap or engineered barrier, as defined in 310 CMR 40.0996(5), that is constructed as a Release Abatement Measure will not be considered part of a Permanent Solution at a disposal site, unless and until a Phase III performed pursuant to the provisions of 310 CMR 40.0850 demonstrates the lack of a feasible alternative. 

 

(5)   Release Abatement Measures shall not involve the excavation of greater than 1500 cubic yards (cumulative, for the disposal site in question) of soil contaminated by oil and/or hazardous material at concentrations equal to or greater than applicable Reportable Concentrations, unless a statement is provided in the Release Abatement Measure Plan by the RP, PRP, or Other Person conducting response actions certifying that, based upon information and opinions provided by an LSP, such persons have sufficient financial resources to manage excavated materials in the manner and time frames specified at 310 CMR 40.0030.

 

40.0443:   Approvals Required to Conduct Release Abatement Measures

 

(1)   A Release Abatement Measure shall not be conducted at any disposal site until a complete Release Abatement Measure Plan, as described in 310 CMR 40.0444, has been received by  the Department.  A Release Abatement Measure Plan shall not be considered complete until all information described in 310 CMR 40.0444 is received in the appropriate DEP regional office, accompanied by a certification of payment, in cases where a fee is specified pursuant to 310 CMR 4.00:  Timely Action Schedule and Fee Provisions.

 

(2)   Subsequent to the receipt by the Department of a complete RAM Plan, unless otherwise specified by the Department in writing, approval shall not be required from the Department to conduct the  Release Abatement Measure.  Exemption from the need to obtain approval from the Department in these cases shall not relieve RPs, PRPs, or Other Persons of their obligation to submit to the Department all required Release Abatement Measure Plans, Status Reports and Completion Reports.

 

(3)   Any person implementing a Release Abatement Measure shall conform to all proposals and specifications contained in the Release Abatement Measure Plan, and any conditions specified by the Department.

 

(4)   A modified Release Abatement Measure Plan shall be submitted to the Department prior to implementing a modification of a Release Abatement Measure if:

(a)   contaminants or conditions are discovered that significantly increase the degree or change the type of exposure to nearby receptors; or

(b)   a significant change is proposed to on-site treatment processes.

      All other modifications may be implemented immediately and shall be documented with the next required response action submittal pursuant to 310 CMR 40.0440.

 

(5)   Remedial actions specified in a Release Abatement Measure Plan shall be initiated by the RP, PRP, or Other Person conducting response actions at a disposal site within one year from the date of the Department’s receipt of a complete Release Abatement Measure Plan.  Release Abatement Measure Plans not initiated in this manner shall be considered invalid and unapproved.

 

40.0444:   Release Abatement Measure Plans

 

(1)   A Release Abatement Measure Plan shall not be considered complete unless it contains, at a minimum, the following:

(a)   the name, address, telephone number and relationship to the site of the person assuming responsibility for conducting the Release Abatement Measure;

(b)   a description of the release or threat of release, site conditions and surrounding receptors;

(c)   the objective(s), specific plan(s) and proposed implementation schedule for the Release Abatement Measure, including, as appropriate, descriptions, plans and/or sketches of the site, any proposed  structures to be constructed or installed in the project area, and any proposed investigative and/or remedial installations;

(d)   a statement as to whether Remediation Waste, Remedial Wastewater and/or Remedial Additives will be excavated, collected, stored, treated, discharged, applied, reused, or  otherwise managed at the site;

(e)   where appropriate, a proposed environmental monitoring plan, for implementation during and/or after the Release Abatement Measure; 

(f)   a listing of federal, state and/or local permits likely to be needed to conduct the Release Abatement Measure;

(g)   the seal and signature of the Licensed Site Professional who prepared the Release Abatement Measure Plan;

(h)   the certification required at 310 CMR 40.0442(5), if greater than 1500 cubic yards of Remediation Wastes are to be generated and managed at the disposal site; and

(i)   any other information that the Department, during its review and evaluation of the Release Abatement Measure Plan, determines to be necessary to complete said plan, in view of site specific circumstances and conditions.

 

(2)   All Release Abatement Measure Plans submitted to the Department prior to Tier Classification of the disposal site shall be accompanied by the appropriate fee established in 310 CMR 4.00:  Timely Action Schedule and Fee Provisions.  No fee is required for Release Abatement Measure Plans submitted to the Department after Tier Classification of the disposal site or after submittal of a Permanent Solution Statement for the disposal site.

 

(3)   Release Abatement Measure Plans shall be submitted to the Department using a transmittal form established by the Department for such purposes.

 

40.0445:   Release Abatement Measure Status and Remedial Monitoring Reports

 

(1)   Persons conducting Release Abatement Measures shall submit a Status Report 120 days following receipt by the Department of the initial Release Abatement Measure Plan, and every six months thereafter, until a Release Abatement Measure Completion Report, in accordance with the provisions of 310 CMR 40.0446, has been submitted to the Department.  Each Status Report shall document Release Abatement Measure activities occurring over the period of time since the previously submitted Status Report.

 

(2)   Release Abatement Measure Status Reports shall contain, at a minimum, the following information:

(a)   the status of response operations;

(b)   any significant new site information or data;

(c)   details of and/or plans for the management of Remediation Waste, Remedial Waste-water and/or Remedial Additives;

(d)   any other information that the Department during its review and evaluation of a Status Report determines to be necessary to complete said Status Report, in view of site specific circumstances and conditions; and

(e)   an LSP Opinion as to whether the Release Abatement Measure is being conducted in conformance with the Release Abatement Measure Plan and any conditions of approval established by the Department.

 

(3)   Status Reports shall not be required for sites where a Release Abatement Measure Completion Report or a Permanent Solution Statement is received by the Department prior to the date on which the first Status Report is required pursuant to 310 CMR 40.0445(1).  In the case of a Release Abatement Measure conducted at a site already subject to a Permanent Solution Statement in accordance with 310 CMR 40.1067, a Release Abatement Measure Status Report shall be required unless a Release Abatement Measure Completion Report or a revised Permanent Solution Statement is received by the Department prior to the date on which the first Status Report is required pursuant to 310 CMR 40.0445(1).

 

(4)   Release Abatement Measure Status Reports shall be submitted to the Department using a transmittal form established by the Department for such purposes.

 

(5)   For a disposal site where Active Operation and Maintenance of a remedial action is being conducted as part of a RAM, a Remedial Monitoring Report shall be submitted to the Department on a form established by the Department for such purposes at a frequency of every six months and concurrently with the submittal of the RAM Status Report.  In such cases when the Active Operation and Maintenance of a remedial action is initiated after the submittal of the first RAM Status Report, the Remedial Monitoring Report shall be submitted concurrently with the next RAM Status Report.

 

40.0446:   Release Abatement Measure Completion Report

 

(1)   A Release Abatement Measure Completion Report shall be submitted to the Department no later than 60 days following the completion of those remedial actions proposed in the Release Abatement Measure Plan and/or approved by the Department pursuant to 310 CMR 40.0443.

 

(2)   A Release Abatement Measure shall be considered complete when the objectives of the Release Abatement Measure Plan have been met, and when all active and ongoing remedial actions related to the Release Abatement Measure have been terminated.

 

(3)   Unless otherwise specified in writing by the Department, a Release Abatement Measure Completion Report shall not be required for sites where a Permanent Solution Statement, as described in 310 CMR 40.1000, is submitted to the Department within 120 days following receipt by the Department of the complete initial Release Abatement Measure Plan to conduct the Release Abatement Measure or in the case of a Release Abatement Measure conducted at a site already subject to a Permanent or Temporary Solution Statement in accordance with 310 CMR 40.1067,  a revised Permanent or Temporary Solution Statement is submitted.

 

(4)   A Release Abatement Measure Completion Report shall contain, at a minimum, the following:

(a)   a description of the release or threat of release, site conditions, and surrounding receptors;

(b)   a description of the Release Abatement Measure completed at the disposal site, including work undertaken in response to any conditions of approval imposed by the Department;

(c)   all investigatory and monitoring data obtained during the implementation of the Release Abatement Measure;

(d)   a succinct statement of findings and conclusions resulting from implementation of the Release Abatement Measure, including a statement as to whether the objectives of the Release Abatement Measure have been met;

(e)   details and documentation on the management of any Remediation Waste, Remedial Wastewater and/or Remedial Additives  managed at the site as part of the Release Abatement Measure; and

(f)   a description of any ongoing activities related to the Release Abatement Measure that will be conducted at the disposal site, including monitoring activities, and the maintenance of fences, caps, and other passive systems.

 

(5)   Release Abatement Measure Completion Reports shall be submitted to the Department appended to a Completion Statement form established by the Department for such purposes.  The Completion Statement form shall contain:

(a)   an LSP Opinion on whether the Release Abatement Measure was conducted in accordance with 310 CMR 40.0440, any approval conditions specified by the Department, and, where submitted, the Release Abatement Measure Plan; and

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

 

(6)   Except as provided in 310 CMR 40.0446(7), a Release Abatement Measure shall not be considered complete until all stockpiled/stored Remediation Waste generated as a result of the Release Abatement Measure is removed from the site pursuant to the provisions of 310 CMR 40.0030.

 

(7)   Remediation Waste may be stored, treated, managed, disposed, recycled or reused at a site following the submission to the Department of a Release Abatement Measure Completion Report and Completion Statement only if:

(a)   such actions are conducted in conformance with the provisions of 310 CMR 40.0030; and

(b)   a Remedy Implementation Plan pursuant to the provisions of 310 CMR 40.0870 is submitted to the Department as an attachment to the Release Abatement Measure Completion Statement.

 

(8)   Unless otherwise directed by the Department, Release Abatement Measure Completion Reports are not subject to approval by the Department.

 

40.0447:   Public Involvement

 

(1)   Public Involvement Activities shall be conducted in accordance with 310 CMR 40.1400 through 40.1406.  Public Involvement Activities required for Release Abatement Measures specifically include 310 CMR 40.1403(3)(d), and may include, without limitation, those activities set forth at 40.1403(3)(f).

 

(2)   If the disposal site where the Release Abatement Measure was conducted is a designated Public Involvement Priority site, then a Public Involvement Plan consistent with 310 CMR 40.1405 shall be implemented by the RP, PRP or Other Person conducting response actions at that site.

 

40.0448:   Possible Outcomes of a Release Abatement Measure

 

      One of the following actions shall be taken by an RP, PRP, or Other person following the completion of a Release Abatement Measure:

 

(1)   the filing of a Permanent Solution Statement, in accordance with the provisions of 310 CMR 40.1000; or

 

(2)   the continuation of further Preliminary or Comprehensive Response Actions, in accordance with the provisions of 310 CMR 40.0400 or 40.0800.

 

40.0460:   Utility-related Abatement Measures

 

      310 CMR 40.0461 through 40.0469, cited collectively as 310 CMR 40.0460, set forth requirements and procedures to conduct Utility-related Abatement Measures.

 

40.0461:   General Provisions for Utility-related Abatement Measures

 

(1)   Except as provided in 310 CMR 40.0461(3), Utility-related Abatement Measures may be taken at sites where oil and/or hazardous material is present in the soil or groundwater at levels equal to or greater than an applicable Reportable Concentration value listed at 310 CMR 40.0360 and 40.1600, by:

(a)   persons overseeing or directly responsible for utility construction activities; or

(b)   persons overseeing or directly responsible for site preparation work requested or required by a Public or Private Utility company or Public Authority prior to any utility construction activity.

 

(2)   Except as provided in 310 CMR 40.0461(7), Utility-related Abatement Measures may be taken on public rights of way, utility easements and private property, to respond to and properly manage contamination encountered during the installation, repair, replacement or decommissioning of: 

(a)   sanitary sewerage, water, or drainage systems and related appurtenances;

(b)   steam lines;

(c)   natural gas pipelines and related appurtenances; and

(d)   above ground or underground electric,  telephone, telecommunication cables or other conduits, and related appurtenances.

 

(3)   Utility-related Abatement Measures shall neither be initiated nor continued at any site where a "Two Hour" or "72 Hour" release or threat of release has been identified, as described in 310 CMR 40.0311 through 40.0314, until such time as an Immediate Response Action Completion Report has been submitted to the Department.

 

(4)   Except as provided in 310 CMR 40.0462(4), persons conducting Utility-related Abatement Measures shall engage or employ a Licensed Site Professional as required by 310 CMR 40.0000.

 

(5)   Utility-related Abatement Measures:

(a)   shall be limited to only those assessment, containment or removal actions that are necessary for the completion of construction activities;

(b)   shall not prevent or impede the implementation of likely future response actions; and

(c)   shall not include the construction of residential, commercial, or industrial buildings.

 

(6)   Utility-related Abatement Measures shall be undertaken in conformance with all applicable procedures and requirements specified in 310 CMR 40.0460.

 

(7)   Utility-related Abatement Measures shall not be initiated at sites where the installation of new public utilities are proposed until sufficient evaluation has been made of the nature and extent of encountered and suspected contamination, the scope and expense of necessary mitigative actions, and benefits and limitations of project alternatives.

 

(8)   The Department may, at its discretion, require, undertake or order the initiation of any assessment or remedial actions deemed necessary at any construction site to prevent, abate or eliminate damage or the likelihood of damage to health, safety, public welfare or the environment.

 

40.0462:   Conducting Utility-related Abatement Measures

 

(1)   Except as provided in 310 CMR 40.0462(3), Utility-related Abatement Measures shall not be undertaken by a person performing construction activities until after that person has notified the Department orally or in writing of:

(a)   any release or threat of release of oil and/or hazardous material at the construction site for which  notification to the Department by any person is required under the provisions of 310 CMR 40.0315;

(b)   their intentions to conduct a Utility-related Abatement Measure in compliance with all applicable requirements of 310 CMR 40.0460; and

(c)   the name and license number of the Licensed Site Professional who has been engaged or employed by the person conducting the Utility-related Abatement Measure.

 

(2)   Persons providing oral notification to the Department pursuant to 310 CMR 40.0462(1) shall submit written confirmation of such notice to the Department within seven days, using a transmittal form established by the Department for such purposes.  Such confirmation shall include submittal of a Release Notification Form as described in 310 CMR 40.0371, in cases where the person conducting the Utility-related Abatement Measure is also a person required to notify pursuant to the provisions of 310 CMR 40.0331.

 

(3)   Notwithstanding the provisions of 310 CMR 40.0462(1), notification to the Department of releases that require notification pursuant to 310 CMR 40.0315 shall not be required prior to the initiation of Utility-related Abatement Measures in cases where emergency actions are being undertaken to repair a damaged or defective utility installation.  In such cases, notification shall be provided to the Department as soon as possible thereafter, and within 72 hours of conducting the Utility-related Abatement Measure.

 

(4)   Notwithstanding any other provisions of 310 CMR 40.0460 or 310 CMR 40.0030, persons conducting Utility-related Abatement Measures shall not be required to engage or employ a Licensed Site Professional for conducting Utility-related Abatement Measures that are limited to the excavation and/or handling of:

(a)   not more than 100 cubic yards (cumulative, for any site) of soil contaminated solely by a release of oil or waste oil at concentrations equal to or greater than an applicable Reportable Concentration; or

(b)   not more than 20 cubic yards (cumulative, for any site) of soil contaminated by a release of hazardous material or a mixture of hazardous material and oil or waste oil at concentrations equal to or greater than an applicable Reportable Concentration.

 

(5)   Contaminated soil removed from a construction site under the provisions of 310 CMR 40.0462(4) shall be managed in compliance with all applicable provisions of 310 CMR 40.0030, excluding 310 CMR 40.0034(4)(a).

 

(6)   If the on-site temporary storage of Remediation Waste is precluded due to public safety or traffic concerns, such Remediation Waste may be temporarily stored at another location owned or operated by the RP, PRP or Other Person conducting the Utility-related Abatement Measure, or at a facility permitted, licensed or approved to accept such materials, provided such Remediation Waste is returned to the original site of generation for backfilling or on-site treatment within 14 days of its removal from the site, and is otherwise managed in accordance with the applicable provisions of 310 CMR 40.0460 and 40.0030.

 

(7)   Except for those emergency repairs that occur during non-business hours, Utility-related Abatement Measures shall not be undertaken on any property until a reasonable attempt is made to notify the owner of the property  of the discovery of contamination and of the scope and detail of the proposed response action.  In the event of emergency repairs, the owner of the property in question shall be notified as soon as possible thereafter.  Notwithstanding the foregoing, no rights to undertake any actions beyond those rights otherwise possessed by persons undertaking such actions are created by this provision.

 

40.0463:   Approvals Required to Conduct Utility-related  Abatement Measures

 

(1)   Utility-related Abatement Measures conducted in conformance with all applicable provisions of 310 CMR 40.0460 shall not require approval from the Department under the provisions of 310 CMR 40.0400.  Persons conducting Utility-related Abatement Measures shall comply with all other applicable federal, state and local laws, ordinances, regulations, rules and bylaws.

 

(2)   Notwithstanding 310 CMR 40.0463(1), the Department shall have the right to prohibit any person from undertaking any Utility-related Abatement Measure, or to approve such measures subject to such conditions as the Department deems necessary, in order to protect and preserve health, safety, public welfare and/or the environment, based upon site specific circumstances and conditions.

 

40.0464:   Performance Standards for Utility-related Abatement Measures

 

      The following performance standards shall be met for all Utility-related Abatement Measures:

 

(1)   contamination at the disposal site shall not be exacerbated as a result of Utility-related Abatement Measures or as a result of structures placed within an area of identified contamination;

 

(2)   construction workers, surrounding human populations, and environmental receptors shall be reasonably protected from exposure to oil and/or hazardous material during and following construction activities; and

 

(3)   contaminated soil, contaminated groundwater, and other Remediation Wastes removed from the disposal site and construction area shall be managed in compliance with the provisions of 310 CMR 40.0030 and all applicable federal, state and local laws.

 

40.0465:   Utility-related Abatement Measures Status and Remedial Monitoring Reports

 

(1)   Persons conducting Utility-related Abatement Measures shall submit a Status Report to the Department 120 days following notification to the Department of their intentions to conduct a Utility-related Abatement Measure pursuant to 310 CMR 40.0462(1)(b), and every six months thereafter, until a Utility-related Abatement Measure Completion Report is submitted to the Department in accordance with 310 CMR 40.0466.  Each Status Report shall document Utility-related Abatement Measure activities occurring over the period of time since the previously submitted Status Report.

 

(2)   Utility-related Abatement Measure Status Reports shall contain, at a minimum, the following information:

(a)   the status of response operations;

(b)   any significant new site information or data;

(c)   details of and/or plans for the management of Remediation Waste, Remedial Waste-water and/or Remedial Additives;

(d)   any other information required by the Department pursuant to any condition that the Department imposes on the right to conduct Utility-related Abatement Measures, pursuant to 310 CMR 40.0463(2); and

(e)   an LSP Opinion as to whether the Utility-related Abatement Measure is being conducted in conformance with the provisions of 310 CMR 40.0000 and any conditions established by the Department.

 

(3)   Status Reports shall not be required for any Utility-related Abatement Measure completed within 120 days following notification to the Department of the intention to conduct the same, pursuant to 310 CMR 40.0462(1)(b).

 

(4)   Utility-related Abatement Measure Status Reports shall be submitted to the Department using a transmittal form established by the Department for such purposes.

 

(5)   For a disposal site where Active Operation and Maintenance of a remedial action is being conducted as part of a URAM, a Remedial Monitoring Report shall be submitted to the Department on a form established by the Department for such purposes at a frequency of every six months and concurrently with the submittal of the URAM Status Report. In such cases when the Active Operation and Maintenance of a remedial action is initiated after the submittal of the first URAM Status Report, the Remedial Monitoring Report shall be submitted concurrently with the next URAM Status Report.

 

40.0466:   Utility-related Abatement Measure Completion Reports

 

(1)    A Utility-related Abatement Measure Completion Report shall be submitted to the Department within 60 days of the completion of all response actions associated with a Utility-related Abatement Measure.

 

(2)   A Utility-related Abatement Measure Completion Report shall contain, at a minimum, the following:

(a)   a succinct summary of information and data pertaining to the discovery, location and evaluation of encountered contamination, and of all response actions undertaken and/or completed;

(b)   documentation on the management of Remediation Waste,  Remedial Additives and/or Remedial Wastewater  managed at the site; and

(c)   details on any proposed or ongoing active or passive remedial systems that will remain in place at the site.

 

(3)   Except as provided in 310 CMR 40.0466(4), a Utility-related Abatement Measure shall not be considered complete until all stockpiled/stored Remediation Waste generated as a result of the Utility-related Abatement Measure is removed from the site pursuant to the provisions of 310 CMR 40.0030.

 

(4)   Remediation Waste may be stored, treated, managed, disposed, recycled or reused  at a site following the submission to the Department of a Utility-related Abatement Measure Completion Report and Completion Statement only if:

(a)   such actions are conducted in conformance with the provisions of 310 CMR 40.0030; and

(b)   a Release Abatement Measure Plan pursuant to the provisions of 310 CMR 40.0440 or a Remedy Implementation Plan pursuant to the provisions of 310 CMR 40.0870 is submitted to the Department as an attachment to the Utility-related Abatement Measure Completion Statement.

 

(5)   Except as provided in 310 CMR 40.0466(6), Utility-related Abatement Measure Completion Reports shall be submitted to the Department appended to a Completion Statement form established by the Department for such purposes.  The Completion Statement form shall contain:

(a)   an LSP Opinion on whether the Utility-related Abatement Measure was conducted in accordance with 310 CMR 40.0460 and any approval conditions specified by the Department; and

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

 

(6)   Notwithstanding the provisions of 310 CMR 40.0466(5), an LSP Opinion shall not be required for Utility-related Abatement Measure Completion Reports documenting response actions at those Utility-related Abatement Measures described at 310 CMR 40.0462(4).

 

40.0467:   Possible Outcomes of Utility-related Abatement Measures

 

      The following actions are possible following the initiation and/or completion of Utility-related Abatement Measures:

 

(1)   Utility-related Abatement Measures are terminated due to the discovery of a "Two Hour" or "72 Hour" release or threat of release described in 310 CMR 40.0311 through 40.0314, and continued work on the construction project requires the implementation of an Immediate Response Action by an RP, PRP, or Other Person;

 

(2)   Utility-related Abatement Measures have adequately remediated the release or threat of release encountered at the site, allowing for the filing of a Permanent Solution Statement, as described in 310 CMR 40.1000; or

 

(3)   additional response actions are necessary at the site following the completion of Utility-related Abatement Measures, to be conducted by persons identified as Responsible Parties under M.G.L. c. 21E, § 5(a), or electively by PRPs or Other Persons.

 

40.0480:   Phase I - Initial Site Investigation Report

 

      310 CMR 40.0481 through 40.0489, cited collectively as 310 CMR 40.0480, set forth requirements and procedures for preparing a Phase I - Initial Site Investigation Report.

 

40.0481:   General Provisions for Phase I Initial Site Investigation Report

 

(1)   A Phase I Initial Site Investigation Report (hereinafter referred to as the "Phase I Report") is a document which contains the results of Preliminary Response Actions undertaken at a disposal site pursuant to 310 CMR 40.0400.  The purpose of a Phase I Report is to record information in a standardized format in order to:

(a)   facilitate the evaluation and Tier Classification of a disposal site in those cases where Comprehensive Response Actions may need to be undertaken; or

(b)   where appropriate, support a Permanent or Temporary Solution Statement filed prior to Tier Classification of a disposal site.

 

(2)   A Phase I Report shall be submitted to the Department for any disposal site undergoing Tier Classification under the provisions of 310 CMR 40.0500.

 

(3)   The preliminary description of hydrogeologic conditions at a disposal site required in a Phase I Report pursuant to 310 CMR 40.0483(d) shall be based upon the installation of a minimum of three groundwater monitoring wells, in locations near known or likely release or source areas.  This requirement may be modified or eliminated based upon the exercise of Technical Justification by a Licensed Site Professional, as described in 310 CMR 40.0193.

 

40.0482:   Performance Standards

 

      A Phase I Report shall provide sufficient information to meet the requirements of the Tier Classification process described in 310 CMR 40.0500 or, where appropriate, support a Permanent or Temporary Solution Statement filed for a site prior to Tier Classification.

 

40.0483:   Content of Phase I Report

 

(1)   Except as provided in 310 CMR 40.0483(2) and 40.0193, the following information shall be contained in all Phase I Reports submitted to the Department, in the format established below:

(a)   General Disposal Site Information.  The Phase I Report shall provide general information which defines and describes the disposal site and surrounding area, including:

1.   the DEP Release Tracking Number(s) applicable to the disposal site under investigation;

2.   the address(es) and geographical location coordinates of the disposal site and/or properties comprising the disposal site;

3.   a Disposal Site Locus Map, based upon a U.S.G.S. topographic or equivalent map, depicting 500 foot and ½ mile radii from the boundaries of the disposal site;

4.   an estimate of the number of on-site workers at the disposal site;

5.   an estimate of the residential population  within a ½ mile radius of the disposal site;

6.   a general description of land uses surrounding the disposal site;

7.   the number of Institutions within 500 feet of the disposal site; and

8.   a listing and description of any of the following natural resource areas located within 500 feet of the disposal site:

a.   all surface waters, including wetlands, vernal pools, ponds, lakes, streams, rivers, and reservoirs;

b.   drinking water supplies consisting of  Zone II areas, Interim Wellhead Protection Areas, Zone A areas, Potentially Productive Aquifers, and private wells; and

c.   Areas of Critical Environmental Concern, Sole Source Aquifers, local, state and/or federal protected open space, fish habitats, and habitats of Species of Special Concern or Threatened or Endangered Species.

(b)   Disposal Site Map.   Phase I Reports shall include one or more maps or plans depicting the location of the following:

1.   disposal site boundaries, to the extent they have been defined by assessments conducted to date;

2.   boundaries of properties located within the disposal site; and

3.   the following structures, areas and monitoring points, as appropriate:

a.   on-site buildings;

b.   floor and storm drains;

c.   subsurface utilities serving or transecting the disposal site;

d.   oil and/or hazardous material storage and disposal structures and/or areas;

e.   the location of any known oil and/or hazardous material releases and/or threats of release; and

f.   monitoring wells, borings, test pits and other relevant sampling and screening points.

(c)   Disposal Site History.  The disposal site history shall be presented in the Phase I Report in reverse chronological order, beginning with the current use of the disposal site, and shall include the following:

1.   Owner/Operator and Operations History.

a.   a list of current and relevant previous owners and operators of the properties comprising the disposal site, including dates of ownership and operation; and

b.   a description of current and historical uses of the disposal site, including residential, commercial and industrial activities and manufacturing processes, and the location of buildings and structures currently or previously located on the disposal site.

2.   Release History.  A description of any known and relevant releases of oil and/or hazardous material at the disposal site shall be provided.  For each relevant release, the description shall include:

a.   the source and location of the release;

b.   the known or suspected cause of the release;

c.   the known or approximate date and duration of the release;

d.   the type of oil and/or hazardous material released;

e.   the known or approximate volume of the release; and

f.   any measures taken to assess, contain or mitigate the release.

3.   Oil and/or Hazardous Material Use and Storage History.  The Phase I Report shall describe all relevant current and past use and storage of oil and/or hazardous material at the disposal site, and shall include a description of the following:

a.   types of oil and/or hazardous material, including generic names, chemical names and trade names, if available;

b.   uses or oil and/or hazardous material;

c.   quantities used;

d.   periods of use;

e.   on-site storage locations, underground storage tanks, above-ground tanks, drums, lagoons, pits and piles; and

f.   age and volume of tanks and other storage containers.

4.   Waste Management History.  The Phase I Report shall include a general description of all known relevant waste management practices, excluding the off-site disposal of solid waste.  This description shall address the types of wastes or waste streams, and the locations of points of discharge or on-site disposal or treatment with respect to the following:

a.   land disposal, including landfills and lagoons;

b.   subsurface disposal including drains, dry wells, septic systems and leach fields;

c.   surface water discharges to natural and  man-made water bodies;

d.   discharges to wastewater treatment plants; and

e.   any other relevant means of disposal or treatment.

5.   Environmental Permits and Compliance History.  The Phase I Report shall include a history of all relevant local, state and federal environmental permits and oil and/or hazardous material storage permits issued for the disposal site or on-site facilities, including without limitation information on any permit violations.  Relevant permits may include but are not limited to:

a.   permits for M.G.L. c. 21E response actions;

b.   oil and/or hazardous material storage permits;

c.   wastewater discharge permits;

d.   groundwater discharges permits;

e.   air quality discharges permits;

f.   wetlands alteration permits;

g.   Resource Conservation and Recovery Act (RCRA) permits; and

h.   National Pollution Discharge Elimination System (NPDES) permits.

6.   Potentially Responsible Parties.  The Phase I Report may include a list of the names and addresses of all Potentially Responsible Parties identified for the disposal site.

(d)   Site Hydrogeological Characteristics.  The Phase I Report shall include details of subsurface investigations conducted at the disposal site, together with a preliminary or generalized description and depiction of site hydrogeologic conditions, including, without limitation:

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

2.   documentation on boring advancement, well construction and well development, including copies of well drilling logs, within or appended to the Phase I Report;

3.   a characterization of general site topography, including slope, presence of bedrock outcrops and surface drainage features;

4.   a characterization of geologic and stratigraphic conditions, including:

a.   soil type(s), stratigraphy and evidence of filling or waste disposal;

b.   where appropriate, the known or estimated depths to, and description of, bedrock; and

5.   a description and graphical depiction of groundwater flow direction or potentiometric surface elevations, indicating the location of monitoring wells. 

(e)   Nature and Extent of Contamination.  The Phase I Report shall provide information on the nature and extent of contamination, as determined by Initial Site Investigation Activities and Preliminary Response Actions undertaken to date at the disposal site, including:

1.   evidence of releases of oil and/or hazardous material to the environment including visual and olfactory evidence, results of field screening and laboratory analysis, and historical knowledge;

2.   the names, concentrations, and volumes (if applicable) of all released oil and hazardous material detected to date at the disposal site:

a.   volumes shall be reported in gallons, pounds, tons or cubic feet, as appropriate;

b.   analytical results for each media sampled shall be summarized in the text and in tables in the body of the Phase I Report;

c.   for the purpose of disposal site classification, maximum and minimum concentrations for each contaminant detected shall be identified in a summary table in the body of the Phase I Report;

3.   laboratory data sheets, included in an appendix to the Phase I Report;

4.   information and details on the approximate horizontal and vertical extent of contamination based on best available information, as obtained from site investigations of scope and detail commensurate with release and site conditions; and

5.   information and details on NAPL, if present or suspected, including NAPL stability and the approximate horizontal and vertical extent of NAPL contamination, as obtained from site investigations of scope and detail commensurate with release and site conditions.

(f)   Migration Pathways and Exposure Potential.  The Phase I Report shall describe and evaluate known and potential contaminant migration pathways and exposure points, to the extent that such information is known, including:

1.   evidence of and the potential for oil and/or hazardous material migration by one or more of the following pathways:

a.   air;

b.   soil;

c.   groundwater;

d.   soil gas;

e.   preferential flow pathways such as subsurface utility lines and void spaces; and/or

f.   surface water, including sediments;

2.   a discussion of known and potential human exposure to oil and hazardous material present at the disposal site, by inhalation, dermal contact or ingestion of contaminants; and

3.   a discussion of known and potential impacts of oil and hazardous material present at the disposal site to environmental receptors, with special attention given to the natural resource areas referenced in 310 CMR 40.0483(1)(a)8.c.

(g)   Evaluation for Immediate Response Actions.  The Phase I Report shall include an evaluation of the need to conduct an Immediate Response Action, as described in 310 CMR 40.0412.

(h)   Conclusions.  The Phase I Report shall include a Conclusions section containing a summary of findings and statement of conclusions with respect to the site,  a preliminary Conceptual Site Model for the disposal site  and the outcome of Initial Site Investigation Activities, as documented in the Phase I Report, and as described in 310 CMR 40.0486.

 

(2)   In addition to the Phase I Report requirements set forth in 310 CMR 40.0483(1), such additional information as may be necessary to adequately and completely characterize a disposal site in accordance with the Response Action Performance Standard described in 310 CMR 40.0191, and/or as required by unique release, threat of release and/or site conditions, shall be provided in the Phase I Report.  It may also be appropriate to eliminate certain information categories, or investigation or assessment elements from the Phase I Report, as may be consistent with unique release, threat of release and/or site conditions, by application of the Technical Justification standard set forth in 310 CMR 40.0193.

 

40.0484:   Phase I Report Completion Statement

 

(1)   All Phase I Reports submitted to the Department in support of a Permanent or Temporary Solution Statement, or as part of Tier Classification of a disposal site pursuant to 310 CMR 40.0500, shall be appended to the appropriate transmittal  form established by the Department for such purposes.

 

(2)   The Completion Statement form submitted with a Phase I Report shall include the following:

(a)   an LSP Opinion as to whether the Phase I Report conforms with applicable requirements specified in 310 CMR 40.0480;

(b)   the outcome of the Phase I Report, as described in 310 CMR 40.0486; and

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

 

40.0485:   Public Involvement

 

      Public Involvement Activities shall be conducted in accordance with 310 CMR 40.1400 through 40.1406.  Public Involvement Activities relevant to Initial Site Investigation Activities specifically include those activities set forth in 310 CMR 40.1403(3)(e), and may include, but are not limited to, those activities set forth in 310 CMR 40.1403(3)(a) and (4)(f).

 

40.0486:   Possible Outcomes of a Phase I Report

 

      The following outcomes are possible upon completion of a Phase I Report:

 

(1)   Comprehensive Response Actions are necessary at the disposal site.  Tier Classification of the site pursuant to the provisions of 310 CMR 40.0500 shall be undertaken by RPs, PRPs, or Other Persons, if necessary, and prior to the initiation of Comprehensive Remedial Actions; or

 

(2)   the requirements of a Permanent Solution have been met, pursuant to the provisions of 310 CMR 40.1000, and a Permanent or Temporary Solution Statement shall be submitted to the Department by the RP, PRP, or Other Person conducting response actions.