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

40.1000:   Response Action Outcomes

310 CMR 40.1001 through 40.1099 shall be cited collectively as 310 CMR 40.1000.

40.1001:   Purpose

(1)   310 CMR 40.1000 establishes requirements and procedures for:

(a)   determining when the response actions taken at a site where there has been a release or threat of release of oil and/or hazardous material to the environment are sufficient to meet the requirements of a Response Action Outcome (RAO);

(b)   implementing Activity and Use Limitations;

(c)   determining the class of RAO achieved as the result of response actions taken at a site or disposal site; and

(d)   documenting and supporting the RAO in a Response Action Outcome Statement.

40.1002:   Applicability

The requirements contained in 310 CMR 40.1000 are applicable to all releases and threats of release of oil and/or hazardous material which require notification to the Department under the provisions of 310 CMR 40.0300 or are required to comply with these regulations pursuant to 310 CMR 40.0600, except where a site or disposal site is adequately regulated pursuant to 310 CMR 40.0110.

40.1003:   General Provisions for Response Action Outcomes

(1)   All necessary and required response actions under 310 CMR 40.0000 shall not have been conducted at a site or disposal site unless and until a level of No Significant Risk exists or has been achieved and a Class A or Class B Response Action Outcome has been achieved in accordance with 310 CMR 40.1000.

(2)   RPs, PRPs and Other Persons conducting response actions at any site for which a release or threat of release of oil and/or hazardous material has been reported pursuant to 310 CMR 40.0300 shall achieve a Response Action Outcome and submit a Response Action Outcome Statement to the Department in accordance with the requirements of 310 CMR 40.1000 within the deadlines established in 310 CMR 40.0500, or any other deadline established under 310 CMR 40.0000 or any determination or order issued by the Department.

(3)   A Response Action Outcome may be achieved and a Response Action Outcome Statement may be submitted for an entire site, disposal site, or a portion of a disposal site.

(4)   The location of a site for which a Response Action Outcome applies shall be clearly and accurately identified in the Response Action Outcome Statement.  The boundaries of a disposal site or portion of a disposal site for which a Response Action Outcome applies shall be clearly and accurately delineated and provided in documentation submitted with the Response Action Outcome Statement.

(5)   A Response Action Outcome shall not be achieved unless and until each source of oil and/or hazardous material which is resulting or is likely to result in an increase in concentrations of oil and/or hazardous material in an environmental medium, either as a consequence of a direct discharge or through intermedia transfer of oil and/or hazardous material,

(a)   for a Class A or B Response Action Outcome, is eliminated or controlled;

(b)   For a Class C Response Action Outcome, is, to the extent feasible, eliminated, controlled or mitigated;

(c)   For the purposes of 310 CMR 40.1003(5),  sources may include, without limitation:

1.   leaking storage tanks, vessels, drums and other containers;

2.   dry wells or wastewater disposal systems that are not in compliance with regulations governing discharges from those systems;

3.   contaminated fill, soil, sediment and waste deposits; and

4.   non-aqueous phase liquids.

(d)   For the purposes of 310 CMR 40.1003(5), the downgradient leading edge of a plume of oil and/or hazardous material dissolved in and migrating with groundwater shall not, in and of itself, be considered a source of oil and/or hazardous material.

40.1004:   Performance Standards for Response Action Outcomes

(1)   A Response Action Outcome shall be supported by assessments and evaluations conducted pursuant to 310 CMR 40.0000 which:

(a)   are of sufficient scope, detail, and level of effort to characterize the risk of harm to health, safety, public welfare and the environment posed by the site or disposal site pursuant to 310 CMR 40.0900;

(b)   are consistent with the  Response Action Performance Standard described in 310 CMR 40.0191;

(c)   are commensurate with the nature and extent of the release or threat of release and complexity of site conditions;

(d)   demonstrate that all requirements of the applicable class of Response Action Outcome pursuant to 310 CMR 40.1000 have been met; and

(e)   conform with applicable requirements and procedures for conducting response actions specified in 310 CMR 40.0000.

40.1005:   Defining "Foreseeable Period of Time" for Purposes of a Response Action Outcome

(1)   Each Class A and Class B Response Action Outcome shall ensure a level of control of each identified substance of concern at a site or in the surrounding environment such that no such substance of concern shall present a significant risk of harm to health, safety, public welfare or the environment during any foreseeable period of time.

(2)   "Any foreseeable period of time" shall mean the period of time during which the conditions for achieving and maintaining a level of No Significant Risk upon which a Class A or Class B RAO is based will remain in effect.  Any foreseeable period of time:

(a)   for Class A-1, A-2 or B-1 RAOs shall be an unlimited period of time;

(b)   for Class B-2 and B-3 RAOs shall be that period of time that Activity and Use Limitations will remain in effect; and

(c)   for Class A-3 and A-4 RAOs shall be that period of time that Activity and Use Limitations will remain in effect or the design life of any remedial systems necessary to maintain a condition of No Significant Risk, whichever is shorter.

40.1012:   Application of Activity and Use Limitations

(1)   The purpose of an Activity and Use Limitation is to narrow the scope of exposure assumptions used to characterize risks to human health from a release pursuant to 310 CMR 40.0900, by specifying activities and uses that are prohibited and allowed at the disposal site in the future.  310 CMR 40.1012 establishes rules for determining when an Activity and Use Limitation must be used, when one cannot be used, and when one may be a factor to be considered in appropriately characterizing soil and groundwater at a disposal site, pursuant to 310 CMR 40.0923(3).

(2)   Except as provided in 310 CMR 40.1012(3), Activity and Use Limitations shall be required:

(a)   at all disposal sites or portions of disposal sites for which a Response Action Outcome and the risk characterization pursuant to 310 CMR 40.0900 used to support the RAO are based upon the restriction or limitation of Site Activities and Uses to achieve or maintain a level of No Significant Risk including:

1.   any disposal site or portion of a disposal site for which a Response Action Outcome is based on MCP Method 1 or 2 Soil Standards and the Exposure Point Concentrations of oil and/or hazardous material exceed the S-1 standards but meet applicable S-2 or S-3 standards;

2.   any disposal site or portion of a disposal site where a Method 3 Risk Characterization performed pursuant to 310 CMR 40.0990 relies on reduced exposure potential due to the assumption of limited site use; and

3.   any disposal site or portion of a disposal site at which the oil and/or hazardous material in soil located at a depth greater than fifteen feet from the ground surface exceeds an applicable Upper Concentration Limit in Soil listed at 310 CMR 40.0996(7) or determined at 310 CMR 40.0996(8).

(b)   at all disposal sites for which a Response Action Outcome relies upon Exposure Pathway elimination measures to prevent exposure to levels of oil and/or hazardous material that would otherwise pose a significant risk of harm to health, safety, public welfare or the environment; and

(c)   at all sites where an existing private water supply well(s) is removed from service as a source of drinking water and maintained for uses other than as a private water supply in accordance with the provisions of 310 CMR 40.0932(5)(d).

(3)   Activity and Use Limitations shall not be required but may be used to provide notice of the existence of residual contamination to future holders of an interest(s) in property that is located within:

(a)   disposal sites or portions of disposal sites where the concentrations of oil and/or hazardous material have been reduced to background or where the requirements described in 310 CMR 40.0923(3)(b) have been met;

(b)   disposal sites or portions of disposal sites at which residual contamination at levels at or below the applicable Upper Concentration Limits for Soil listed or determined in 310 CMR 40.0996 is located at a depth greater than 15 feet from the ground surface;

(c)   any portion of a disposal site where residual contamination is located within a public way or within a rail right-of-way;

(d)   disposal sites or portions of a disposal site for which potential risks are characterized using Method 1 (310 CMR 40.0970) if the levels of oil and/or hazardous material in soil are at or below the applicable Method 1 category S-1 soil standards listed in 310 CMR 40.0975(6);

(e)   at disposal sites or portions of a disposal site for which potential risks are characterized using Method 2 (310 CMR 40.0980) if the levels of oil and/or hazardous material are at or below the applicable category S-1 soil standards identified in 310 CMR 40.0984 and 40.0985;

(f)   disposal sites or portions of a disposal site for which potential risks are characterized using Method 3 (310 CMR 40.0990) if the levels of oil and/or hazardous material pose No Significant Risk pursuant to 310 CMR 40.0990, including comparison to any applicable or suitably analogous standards, and no limitations on site use were assumed or implied in the Risk Characterization;

(g)   any disposal site or portion of a disposal site where all substantial hazards have been eliminated and where all applicable requirements for a Class C Response Action Outcome have been met pursuant to 310 CMR 40.1050; and

(h)    any other disposal site or portion of a disposal site where an Activity and Use Limitation is not expressly prohibited by 310 CMR 40.1012.

(4)   Activity and Use Limitations shall not be used:

(a)   to change the groundwater category of groundwater categorized as GW-1 or GW-2 pursuant to 310 CMR 40.0932; or

(b)   to justify a conclusion that a condition of No Significant Risk exists or has been achieved at sites characterized using Method 1 or Method 2 if an identified Exposure Point Concentration exceeds an applicable Method 1 or Method 2 standard.

(5)   Activity and Use Limitations:

(a)   shall provide notice to holders of any interest(s) in a property or a portion thereof (including without limitation, owners, lessees, tenants, mortgagees, and holders of easement rights) of the existence and location of oil and/or hazardous material at such property and the Activity and Use Limitations that have been implemented in response thereto; and

(b)   establish a duty to evaluate risks associated with proposed changes in Site Activities and Uses on the subject property that could increase the risk of harm to health, safety, public welfare or the environment and to perform additional response actions prior to any such change in Site Activities and Uses, as required by 310 CMR 40.0000.

(6)   Any Activity and Use Limitations applied at a disposal site pursuant to 310 CMR 40.0000 shall be instituted and maintained in accordance with 310 CMR 40.1070 through 310 CMR 40.1099.

40.1020:   Background Levels of Oil and Hazardous Material

(1)   At any disposal site or portion of a disposal site where one or more remedial actions are undertaken to achieve a Permanent Solution, those remedial actions shall include, where feasible, one or more measures designed to reduce to the extent possible the concentrations of oil and hazardous material to levels that would exist in the absence of the disposal site of concern.  Such measures shall, to the extent feasible, achieve or approach background levels of oil and hazardous material in the environment as defined under 310 CMR 40.0006.

(2)   A level of No Significant Risk shall be deemed to exist or to have been achieved at all disposal sites where the concentrations of oil and hazardous material in the environment have been reduced to background levels.

(3)   The feasibility of reducing the concentrations of oil and hazardous material in the environment at a disposal site or portion of a disposal site to levels that achieve or approach background shall be evaluated using the criteria described in 310 CMR 40.0860 in each case where one or more remedial actions have been taken to achieve a Permanent Solution, except where it can be demonstrated that the requirements of a Class A-1 Response Action Outcome have been met.

40.1030:   Categories of Response Action Outcomes

(1)   Response Action Outcomes are categorized under 310 CMR 40.1030 through 40.1051 as A-1, A-2, A-3, A-4, B-1, B-2, B-3, or C-1 or C-2.

(2)   The specific category of Response Action Outcome applicable to a site or disposal site shall be established based upon the following factors:

(a)   whether the site or disposal site poses No Significant Risk;

(b)   whether all Substantial Hazards posed by the disposal site have been eliminated;

(c)   whether remedial actions have been taken to achieve a level of No Significant Risk;

(d)   whether one or more Activity and Use Limitations are required under the provisions of 310 CMR 40.1012 to maintain a level of No Significant Risk;

(e)   whether concentrations of oil and/or hazardous material at a site exceed Upper Concentration Limits in Soil and Groundwater listed at 310 CMR 40.0996(7); and

(f)   whether remedial actions have achieved background, as described in 310 CMR 40.0900 and 310 CMR 40.1020.

40.1035:   Class A Response Action Outcomes:  Permanent Solutions

(1)   Class A Response Action Outcomes shall apply to sites or disposal sites where a Permanent Solution has been achieved.

(2)   A Class A Response Action Outcome shall apply where response actions have been conducted to:

(a)   achieve a level of No Significant Risk, as specified in 310 CMR 40.0900;

(b)   eliminate or control any source of oil and/or hazardous material, as specified in 310 CMR 40.1003(5); and

(c)   where feasible, reduce to the extent possible, the level of oil and/or hazardous material concentrations in the environment to background.

(3)   Class A Response Action Outcomes shall not apply to:

(a)   any disposal site where one or more remedial actions have not been conducted; or

(b)   any disposal site where Active Operation and Maintenance of a remedial action is required.

40.1036:   Categories of Class A Response Action Outcomes

(1)   Class A-1 Response Action Outcomes shall apply to:

(a)   disposal sites where a Permanent Solution has been  achieved and the level of oil and hazardous material in the environment has been reduced to background; or

(b)   sites where response actions have eliminated all threats of release and no release of oil and/or hazardous material to the environment has occurred.

(2)   Class A-2 Response Action Outcomes shall apply to disposal sites where:

(a)   a Permanent Solution has been achieved;

(b)   the level of oil and hazardous material in the environment has not been reduced to background; and

(c)   one or more Activity and Use Limitations are not required to maintain a level of No Significant Risk.

(3)   Class A-3 Response Action Outcomes shall apply to disposal sites where:

(a)   a Permanent Solution has been achieved;

(b)   the level of oil and hazardous material in the environment has not been reduced to background;

(c)   one or more Activity and Use Limitations have been implemented pursuant to 310 CMR 40.1012 to maintain a level of No Significant Risk; and

(d)   oil or hazardous material at the disposal site do not exceed an applicable Upper Concentration Limit in Soil or Groundwater listed at 310 CMR 40.0996(7).

(4)   Class A-4 Response Action Outcomes shall apply to disposal sites where:

(a)   a Permanent Solution has been achieved;

(b)   the level of oil and hazardous material in the environment has not been reduced to background;

(c)   one or more Activity and Use Limitations have been implemented pursuant to 310 CMR 40.1012 to maintain a level of No Significant Risk;

(d)   oil and/or hazardous material in soil located at a depth greater than 15 feet from the ground surface or beneath an engineered barrier exceed one or more applicable Upper Concentration Limits in Soil listed at 310 CMR 40.0996(7); and

(e)   an evaluation conducted pursuant to 310 CMR 40.0860 indicates that it is not feasible to reduce the concentrations of oil and hazardous material in soil located at a depth greater than 15 feet from the ground surface or in the area beneath the engineered barrier to less than or equal to the applicable Upper Concentration Limits in Soil listed at 310 CMR 40.0996(7).  As required by 310 CMR 40.0859(4), a Permanent Solution which relies upon an Engineered Barrier shall not be selected unless and until, a Phase III evaluation performed pursuant to the provisions of 310 CMR 40.0850 demonstrates the lack of a feasible alternative.. 

(5)   A Class A-1, A-2, A-3, or A-4 Response Action Outcome shall not apply to any disposal site where:

(a)   groundwater or soil concentrations of oil and/or hazardous material exceed Upper Concentration Limits specified in 310 CMR 40.0996, except in those cases where the concentrations are shown to be consistent with background, or the soil is located at a depth greater than 15 feet from the ground surface or beneath an engineered barrier and it is not feasible pursuant to the criteria listed at 310 CMR 40.0860 to reduce such soil concentrations to less than or equal to the applicable Upper Concentration Limits in Soil listed in 310 CMR 40.0996(7); or

(b)   groundwater concentrations exceed an applicable or suitably analogous standard listed in 310 CMR 40.0993(3) where the groundwater is categorized as GW-1 pursuant to 310 CMR 40.0932.

(6)   Class A-1, A-2, A-3 and A-4 Response Action Outcomes may be achieved:

(a)   after completion of Immediate Response Actions and/or Release Abatement Measures pursuant to 310 40.0400;

(b)   after completion of a Phase IV remedial action pursuant to 310 CMR 40.0870;

(c)   after completion of Phase V operation, maintenance and/or monitoring pursuant to 310 CMR 40.0890; or

(d)   after completion of Post-RAO operation, maintenance and/or monitoring pursuant to 310 CMR 40.0897 and 310 CMR 40.0898.

40.1045:   Class B Response Action Outcomes:  No Remedial Action Required

(1)   Class B Response Action Outcomes shall apply to disposal sites where it is determined as a result of assessment actions that a level of No Significant Risk exists under 310 CMR 40.0900 and, therefore, no remedial actions are necessary.

(2)   A Class B Response Action Outcome shall not apply to a disposal site where one or more remedial actions have been conducted.  Any action involving the containment or removal of Remediation Waste or any containment or removal actions taken to abate a threat of release shall for the purposes of 310 CMR 40.1045(2) be considered a remedial action.

40:1046:   Categories of Class B Response Action Outcomes

(1)   Class B-1 Response Action Outcomes shall apply to disposal sites where remedial actions have not been conducted because a level of No Significant Risk exists and no Activity and Use Limitation is necessary to ensure the existence or maintenance of a level of No Significant Risk.

(2)   Class B-2 Response Action Outcomes shall apply to disposal sites where:

(a)   remedial actions have not been conducted because a level of No Significant Risk exists, but such a level of No Significant Risk is contingent upon one or more Activity and Use Limitations that have been implemented at the disposal site pursuant to 310 CMR 40.1012 to restrict exposures to oil and/or hazardous material; and

(b)   no concentration of oil or hazardous material at the disposal site exceeds an applicable Upper Concentration Limit in Soil or Groundwater listed at 310 CMR 40.0996(7).

(3)   Class B-3 Response Action Outcomes shall apply to disposal sites where:

(a)   remedial actions have not been conducted because a level of No Significant Risk exists, but such level of No Significant Risk is contingent upon one or more Activity and Use Limitations that have been implemented at the disposal site pursuant to 310 CMR 40.1012 to restrict exposures to oil and/or hazardous material; and

(b)   oil and/or hazardous material in soil located at a depth greater than 15 feet from the ground surface exceed one or more applicable Upper Concentration Limits in Soil listed at 310 CMR 40.0996(7); and

(c)   an evaluation conducted pursuant to 310 CMR 40.0860 indicates that it is not feasible to reduce the concentrations of oil and hazardous material in soil located at a depth greater than 15 feet from the ground surface to less than or equal to applicable Upper Concentration Limits in Soil listed at 310 CMR 40.0996(7).

(4)   For the purposes of 310 CMR 40.1000 only, the filing or recording and/or registration of one or more Activity and Use Limitations shall not be deemed a remedial action.

(5)   A Class B-1, B-2 or B-3 Response Action Outcome shall not apply to any disposal site where:

(a)   groundwater or soil concentrations of oil and/or hazardous material exceed Upper Concentration Limits specified in 310 CMR 40.0996, except in those cases where the concentrations are shown to be consistent with background or where the soil is located at a depth greater than 15 feet from the ground surface and it is not feasible pursuant to the criteria listed at 310 CMR 40.0860 to reduce such soil concentrations to less than or equal to the applicable Upper Concentration Limits in Soil listed in 310 CMR 40.0996(7); or

(b)   groundwater concentrations exceed an applicable or suitably analogous standard listed in 310 CMR 40.0993(3) where the groundwater is categorized as GW-1 pursuant to 310 CMR 40.0932.

(6)   Class B Response Action Outcomes may be achieved:

(a)   after completion of Initial Assessment Activities pursuant to 310 CMR 40.0405(1);

(b)   after completion of a Phase I Initial Site Investigation Report pursuant to 310 40.0480; or

(c)   after completion of a Phase II Comprehensive Site Assessment pursuant to 310 40.0830;

40.1050:   Class C Response Action Outcomes:  Temporary Solutions

(1)   Class C Response Action Outcomes shall apply to disposal sites where a Temporary Solution has been achieved.  A Temporary Solution shall ensure:

(a)   the elimination of any Substantial Hazard at the disposal site; and

(b)   the identification, characterization, and to the extent feasible, elimination, control or mitigation of any source of oil and/or hazardous material as that term is described in 310 CMR 40.1003(5)

(2)   Class C Response Action Outcomes shall apply, without limitation, to the following types of disposal sites:

(a)   disposal sites where Upper Concentration Limits as applicable pursuant to 310 CMR 40.0996 are exceeded in soil and/or groundwater, but all Substantial Hazards have been eliminated; and/or

(b)   disposal sites where oil and/or hazardous material concentrations exceed any applicable or suitably analogous standard identified pursuant to 310 CMR 40.0993(3), but such concentrations of oil and/or hazardous material do not pose a Substantial Hazard.

(3)   Class C Response Action Outcomes may be achieved regardless of whether one or more remedial actions have been taken at a disposal site, but only after a Downgradient Property Status Submittal has been provided to the Department in accordance with 310 CMR 40.0180 or a Phase II Comprehensive Site Assessment and a Phase III Identification, Evaluation and Selection of Comprehensive Remedial Action Alternatives, as specified in 310 CMR 40.0830 and 310 CMR 40.0850, respectively, have been completed.

(4)   A Class C Response Action Outcome may be reached:

(a)   after completion of a Phase III evaluation pursuant to 310 CMR 40.0850;

(b)   after implementation of a Phase IV comprehensive remedial action pursuant to 310 CMR 40.0870; or

(c)   after implementation of Phase V operation, maintenance and/or monitoring pursuant to 310 CMR 40.0890;

40.1051:   Categories of Class C Response Action Outcomes

(1)   Class C-1.  Response Action Outcomes shall apply to disposal sites where, after completion of a Phase III evaluation pursuant to 310 CMR 40.0850, a condition of No Substantial Hazard exists, and it is concluded that response actions to achieve a Permanent Solution are not currently feasible.

(2)   Class C-2.  Response Action Outcomes shall apply to disposal sites where, after completion of a Phase III evaluation pursuant to 310 CMR 40.0850, a condition of No Substantial Hazard exists, response actions to achieve a Permanent Solution are feasible and are to be conducted.

(3)   For all Class C-1 Response Action Outcomes where a Permanent Solution is not currently feasible, except those achieved after a Downgradient Property Status Submittal has been provided to the Department in accordance with 310 CMR 40.0180:

(a)   a copy of the plan as specified in 310 CMR 40.0861(2)(h) that presents definitive and enterprising steps to be taken toward achieving a Permanent Solution at the disposal site or portion of a disposal site shall be submitted with the Class C Response Action Outcome Statement; and

(b)      a Periodic Review of the Temporary Solution shall be conducted every fifth year after the date of filing the Class C RAO, until such time that a Class A, Class B or Class C-2 Response Action Outcome Statement is submitted.  Such Periodic Review Opinion shall address the following:

1.   the feasibility of implementing one or more Permanent Solutions for the disposal site pursuant to 310 CMR 40.0861(2)(h) at the time of the Periodic Review; where one or more Permanent Solutions are determined to be feasible, a Class C-2 Response Action Outcome pursuant to 310 CMR 40.1051(4) shall be submitted in lieu of a Periodic Evaluation;

2.   the effectiveness of the Temporary Solution(s);

3.   the definitive and/or enterprising steps taken to identify, develop and implement a feasible permanent solution at the site;

4.   any changes in activities, uses and/or exposures that may cause an actual or potential increase in exposure for human or environmental receptors to oil and/or hazardous material;

5.   if applicable, an evaluation of any Activity and Use Limitation implemented as part of the Temporary Solution;

6.   any necessary and required response actions to maintain the Temporary Solution and, if applicable, any Activity and Use Limitation, in the event that the Temporary Solution and/or the Activity and Use Limitation is no longer effective in maintaining a condition of No Substantial Hazard at the disposal site; such response actions shall be conducted in accordance with 310 CMR 40.1067; and

7.   the certification required in 310 CMR 40.0009.

(4)   For all Class C-2 Response Action Outcomes where a Permanent Solution is feasible, but a Temporary Solution has been implemented because it is more cost-effective or timely:

(a)   a copy of the plan as specified in 310 CMR 40.0861(2)(h) that presents definitive and enterprising steps to be taken toward achieving a Permanent Solution at the disposal site or portion of a disposal site shall be submitted with the Class C Response Action Outcome Statement; and

(b)   a valid Tier I Permit or Tier II Classification, whichever is applicable, or an Extension thereof shall be in effect at the time the Class C-2 Response Action Outcome is submitted to the Department and further response actions shall be conducted under such Tier I Permit, Tier II Classification or Extension and in accordance with 310 CMR 40.1067.

(5)   Transition Provision.  As of April 3, 2006, all Class C Response Action Outcomes submitted to the Department prior to such effective date shall be Class C-1 Response Action Outcomes until the person conducting response actions subsequently submits a Response Action Outcome of a different class (i.e., Class C-2, Class A or Class B) to change the Response Action Outcome class for the disposal site or portion thereof.

40.1056:   Content of Response Action Outcome Statements

(1)   A Response Action Outcome Statement shall be submitted by a RP, PRP or Other Person on a form established by the Department for such purposes, and shall include, at a minimum, the following:

(a)   the site or disposal site name, address and DEP Release Tracking Number(s);

(b)   the class of Response Action Outcome;

(c)   for all RAOs other than  RAOs where the concentrations of oil and hazardous material are consistent with or have been reduced to background or where a threat of release has been abated, the Method(s) (Methods 1, 2 or 3) used to characterize the risk of harm posed by the disposal site to health, public welfare and the environment, pursuant to 310 CMR 40.0900;

(d)   the relationship of the Response Action Outcome Statement to any other Response Action Outcome Statements that have been filed for the disposal site, if applicable, together with a statement as to whether any additional response actions are needed for any other portions of the disposal site;

(e)   where the RAO Statement applies to a Class C RAO, indication as to whether a feasible Permanent Solution exists for the disposal site and whether any Post-Class C RAO Operation, Maintenance and/or Monitoring of the remedial action under 310 CMR 40.0897 and 310 CMR 40.0898 will be conducted;

(f)   indication as to whether the RAO is based upon the implementation of an Activity and Use Limitation, and if so, the type of Activity and Use Limitation implemented at the disposal site.  In such cases, an Activity and Use Limitation Opinion accompanied by an Activity and Use Limitation Opinion form prescribed by the Department shall be appended to the RAO Statement pursuant to 310 CMR 40.1056(2)(g);

(g)   except where specifically exempted by the Department based upon the Department's level of involvement in the oversight of response actions at the site or disposal site, an Opinion from a Licensed Site Professional as to whether the requirements of the applicable class of Response Action Outcome specified in 310 CMR 40.1000 have been met;

(h)   a certification of the Response Action Outcome Statement and all documents submitted with the RAO Statement as required by 310 CMR 40.0009;

(i)   indication as to whether oil and/or hazardous material exceed one or more applicable Upper Concentration Limits in Soil or Groundwater, as described at 310 CMR 40.0996; and

(j)   indication as to whether the analytical data used to support the RAO was generated pursuant to the Department's Compendium of Analytical Methods.

(2)   Except where previously submitted, all documentation, plans and/or reports necessary to support the Response Action Outcome shall be submitted to the Department, including, without limitation, the following:

(a)   as specified in 310 CMR 40.1003(4), a clear and accurate description of the location of the site or the location and boundaries of the disposal site or portion of disposal site to which the RAO applies.  Such description shall reference, to the extent practicable, the location of the site, and location and boundaries of the disposal site or portion thereof relative to permanent or semi-permanent landmarks, and/or surveyed boundaries;

(b)   for all Class A Response Action Outcomes and, to the extent feasible, for Class C Response Action Outcomes, a demonstration that all uncontrolled sources, as specified in 310 CMR 40.1003(5) have been eliminated or controlled;

(c)   for all Class A and B Response Action Outcomes, information supporting the conclusion that a level of No Significant Risk has been achieved or exists;

(d)   for all Class C Response Action Outcomes, information supporting the conclusion that no substantial hazards remain at the disposal site;

(e)   for all Class A Response Action Outcomes, information documenting the extent to which levels of oil and/or hazardous material in the environment have been reduced to background, and for all Class A-2 and A-3 RAOs, the results of the feasibility evaluation conducted pursuant to 310 CMR 40.0860 demonstrating that the achievement of background is not feasible;

(f)   for all Class A-4 and B-3 Response Action Outcomes, the results of the evaluation conducted pursuant to 310 CMR 40.0860 demonstrating that the achievement of Upper Concentration Limits in Soil located at a depth greater than fifteen feet from the ground surface or in the area beneath an engineered barrier is not feasible;

(g)   a copy of any and all Activity and Use Limitations certified by the appropriate registry of deeds or land registration office which have been implemented under 310 CMR 40.1070;

(h)   where the RAO is based upon the implementation of an Activity and Use Limitation, an Activity and Use Limitation Opinion accompanied by an Activity and Use Limitation Opinion form prescribed by the Department as specified in 310 CMR 40.1071 or 310 CMR 40.1074, whichever is applicable;

(i)   a description of any operation, maintenance, and/or monitoring that will be required to confirm and/or maintain those conditions at the disposal site upon which the RAO is based;

(j)   for all Class C Response Action Outcomes, a copy of the plan, as specified in 310 CMR 40.0861(2)(h), which presents definitive and enterprising steps to be taken toward achieving a Permanent Solution at the disposal site; and

(k)   for all Class A, B, or C Response Action Outcomes, a Data Usability Assessment documenting that the data relied upon is scientifically valid and defensible, and of a sufficient level of precision, accuracy, and completeness to support the RAO, and a Data Representativeness Evaluation, documenting the adequacy of the spatial and temporal data sets to support the RAO.

(3)   The Response Action Outcome shall not be considered complete until the Response Action Outcome fee, if applicable, has been paid in accordance with 310 CMR 4.00.

40.1066:   Effect of Response Action Outcomes on Fees

(1)   Upon receipt of a Class C-1 Response Action Outcome Statement filed in accordance with 310 CMR 40.1000 , the Department shall suspend the further assessment of Tier I or Tier II Annual Compliance Assurance Fees, whichever are applicable, and shall assess a Post-RAO Class C  Annual Compliance Assurance Fee pursuant to 310 CMR 4.03.

(2)   Upon receipt of a Class A  Response Action Outcome Statement filed in accordance with 310 CMR 40.1000 which indicates that Active Operation and Maintenance of a remedial action is not necessary or no longer necessary to ensure the integrity of the RAO, the Department shall suspend the further assessment of Tier I or Tier II Annual Compliance Assurance Fees, or Phase V  Operation,  Maintenance and/or Monitoring Annual Compliance Assurance Fees whichever is  applicable; provided, however, that payment of such fees shall be required for the billable year in which the Response Action Outcome is provided to the Department.

(3)   Upon receipt of a Class B Response Action Outcome Statement filed in accordance with 310 CMR 40.1000, the Department shall suspend the further assessment of Tier I or Tier II Annual Compliance Assurance Fees, whichever is applicable.

40.1067:   Remedial Actions After a Response Action Outcome has been Submitted to the Department

(1)   310 CMR 40.1067 applies to remedial actions conducted at a disposal site  after a Response Action Outcome Statement or a Waiver Completion Statement has been submitted to the Department.

(2)   Nothing in 310 CMR 40.1067 shall affect any person's duty to notify the Department of a release(s) or threat of release(s) in accordance with M.G.L. c. 21E and 310 CMR 40.0000 or limit the Department's authority to establish site-specific requirements for response actions, including response actions to address a violation(s) or deficiency(ies).

(3)   For remedial actions conducted after the submittal of a Class A-1, Class A-2 or Class B-1 Response Action Outcome Statement (i.e., classes of Response Action Outcomes that do not require the implementation of an Activity and Use Limitation) the following requirements shall apply:

(a)   a Tier I Permit, Tier II Classification or Extension thereof is not required;

(b)   unless otherwise specified by the Department, no documentation, including a revised Response Action Outcome Statement, is  required to be maintained by the person conducting response actions or submitted to the Department, but may be maintained or submitted voluntarily; and

(c)   unless otherwise specified by the Department, public involvement activities pursuant to 310 CMR 40.1400 are not required.

(4)   For remedial actions conducted within an area subject to an Activity and Use Limitation after the submittal of a Class A-3 or B-2 Response Action Outcome Statement to the Department, the following requirements shall apply:

(a)   Limited soil excavation  may be undertaken without the need to notify the Department and public involvement activities pursuant to 310 CMR 40.1400 are not required, provided:

1.   such soil excavation is not prohibited by the Activity and Use Limitation;

2.   except as provided in 310 CMR 40.1067(4)(b), such soil excavation  does not result in the excavation of more than 100 cubic yards of Remediation Waste contaminated solely by oil or waste oil, or 20 cubic yards of Remediation Waste contaminated by hazardous material or mixture of oil or waste oil and hazardous material; and

3.   all excavated Remediation Waste is managed in accordance with the provisions of 310 CMR 40.0030;

(b)   Remedial actions that exceed the scope of the limited soil excavation activities outlined in 310 CMR 40.1067(4)(a), or are being conducted to allow a change in Site Activities and Uses pursuant to 310 CMR 40.1080, shall be conducted as Release Abatement Measures, and shall not require a Tier I Permit, Tier II Classification or Extension thereof, provided:

1.   such remedial actions are conducted in accordance with the requirements set forth in 310 CMR 40.0440, including requirements at 40.0442 that limit the scope of Release Abatement Measures, all requirements for submittal of Plans, Status Reports, and Completion Statements;

2.   notice to local officials is provided as specified in 310 CMR 40.1403(3); and

3.   if such remedial actions are being conducted to allow a change in Site Use and/or Activities, the requirements in 310 CMR 40.1080 are met;

(c)   Remedial actions that exceed the scope of a Release Abatement Measure as described in 310 CMR 40.0442 shall be conducted as a Phase IV Comprehensive Remedial Response Action, as specified at 310 CMR 40.0870, provided:

1.   such remedial actions are conducted under a valid Tier I Permit or Tier II Classification or Extension thereof;

2.   public involvement applicable to Phase IV Comprehensive Remedial Response Action is conducted; and

3.   if such remedial actions are being conducted to allow a change in Site Use and Activities, the requirements in 310 CMR 40.1080 are met;

(d)   A revised Response Action Outcome Statement shall be submitted upon completion of remedial actions when the terms and conditions of an Activity and Use Limitation are changed through an amendment, termination, or partial termination in accordance with 310 CMR 40.1080 and 40.1081.  A revised Response Action Outcome Statement, whenever submitted, may be limited to the area in which the response actions were conducted.

(5)   Remedial actions conducted after a Class A-4 or B-3 Response Action Outcome Statement has been submitted to the Department that are in or affect the area where an Engineered Barrier is located shall be conducted as a Phase IV Comprehensive Remedial Response Action, as specified at 310 CMR 40.0870 and shall include public involvement applicable to Phase IV Comprehensive Remedial Response Actions.  In such cases, the person conducting response actions shall have a valid Tier I Permit or Tier II Classification, or an Extension thereof.  Where such remedial actions are outside of and do not affect the integrity of the Engineered Barrier or the area where an Engineered Barrier is located, the procedures at 310 CMR 40.1067(4) shall apply.

(6)   Remedial actions conducted after a Class C Response Action Outcome Statement has been submitted to the Department shall be conducted in accordance with 310 CMR 40.1051, shall include applicable public involvement and are subject to the following:

(a)   persons conducting remedial actions after a Class C-1 Response Action Outcome Statement has been submitted to the Department to maintain the Temporary Solution:

1.   shall conduct such actions in accordance with the applicable remedial action plan, and when the operation, maintenance and/or monitoring of the remedial action is necessary to ensure that the conditions upon which the Class C RAO are based are maintained, in accordance with 310 CMR 40.0897 and 40.0898; and

2.   may conduct a Release Abatement Measure in accordance with 310 CMR 40.0440;

(b)   persons conducting remedial actions after a Class C-2 Response Action Outcome Statement has been submitted to the Department to maintain the Temporary Solution and make further progress toward a Permanent Solution:

1.   shall conduct such actions under a valid Tier I Permit or Tier II Classification or an Extension thereof;

2.   may conduct a Release Abatement Measure in accordance with 310 CMR 40.0440 provided that, for a Class C-2 Response Action Outcome, such person has a valid Tier I Permit, Tier II Classification or Extension thereof; and

3.   if such remedial actions result in the achievement of a Class A Response Action Outcome, shall submit a revised Response Outcome Statement pursuant to 310 CMR 40.1000  to the Department.

(7)   The Department may specify in a Notice of Audit Findings that remedial actions are necessary at a disposal site after a Class A or B Response Action Outcome Statement has been submitted to the Department pursuant to 310 CMR 40.1067.  Notwithstanding the provisions of 310 CMR 40.1067 to the contrary, all remedial actions conducted in response to a Notice of Audit Findings pursuant to 310 CMR 40.1067 shall be documented in the Post-Audit Completion Statement as described at 310 CMR 40.1170.

40.1070:   Implementation of Activity and Use Limitations

(1)   One or more of the following Activity and Use Limitations shall be implemented at each disposal site or portion of a disposal site where the Activity and Use Limitation is necessary and appropriate to meet the requirements of 310 CMR 40.1012:

(a)   a Grant of Environmental Restriction, implemented in accordance with 310 CMR 40.1071;

(b)   an Environmental Restriction implemented by the Department, in accordance with 310 CMR 40.1073; or

(c)   a Notice of Activity and Use Limitation, implemented in accordance with 310 CMR 40.1074.

(2)   Activity and Use Limitations imposed pursuant to 310 CMR 40.1012 shall be implemented and adhered to by the owner and holders of interest(s) in the property and/or a license to use the property subject to the Activity and Use Limitation, and/or the RP, PRP or Other Person conducting response actions at the disposal site or portion of a disposal site in accordance with the procedures established in 310 CMR 40.1070 through 310 CMR 40.1099.

(3)   An Activity and Use Limitation shall be deemed implemented and shall be in effect upon its being duly recorded and/or registered with the appropriate registry of deeds and/or land registration office.

40.1071:   Grants of Environmental Restrictions for Disposal Sites Where a RP, PRP or Other Person Conducts Response Actions

(1)   General Requirements  At any disposal site or portion of a disposal site where a RP, PRP or Other Person is conducting a response action(s) for which a Grant of Environmental Restriction has been selected as a form of Activity and Use Limitation pursuant to 310 CMR 40.1070, the following requirements shall be met:

(a)   the Grant of Environmental Restriction shall be prepared using Form 1072A set forth in 310 CMR 40.1099;

(b)   an Activity and Use Limitation Opinion from a Licensed Site Professional shall be submitted on a form prescribed by the Department with each Grant of Environmental Restriction as an exhibit of the Restriction and shall specify:

1.   why the Grant of Environmental Restriction is appropriate to:

a.   achieve and/or maintain a level of No Significant Risk for a Class A or B Response Action Outcome; or

b.   eliminate a Substantial Hazard for a Class C Response Action Outcome.

2.   Site Activities and Uses to be prohibited and/or restricted;

3.   Site Activities and Uses to be permitted; and

4.   obligations and conditions necessary to meet the objectives of the Grant of Environmental Restriction;

(c)   the Grant of Environmental Restriction shall be submitted to the Department for the Commissioner's signature with the applicable fee pursuant to 310 CMR 4.00; and

(d)   the Grant of Environmental Restriction, signed by the Commissioner, shall be recorded and/or registered as specified in 310 CMR 40.1071(3).  Acceptance of any such Restriction shall not be construed or deemed to imply Department approval of the adequacy of any response actions performed at the disposal site.

(2)   Contents of a Grant of Environmental Restriction  A Grant of Environmental Restriction shall contain the following information:

(a)   a description of the property and disposal site, including:

1.   the location of the property and its street address;

2.   a metes and bounds description of the parcel(s) of land which contain(s) the area that is subject to the Grant of Environmental Restriction;

3.   a reference to a survey plan of such parcel(s) of land, prepared by a Massachusetts Registered Land Surveyor, that has been recorded as a plan with the appropriate registry of deeds and/or to a Land Court Plan;

4.   if the area subject to the Grant of Environmental Restriction (i.e. "the Restricted Area") comprises only a portion of the property described in 310 CMR 40.1071(2)(a)2, a metes and bounds description of the Restricted Area; and:

a.   (for registered land only) an 8 1/2" x 11" survey plan, prepared by a Massachusetts Registered Land Surveyor, which shows the metes and bounds of the Restricted Area, attached as an exhibit to the Grant of Environmental Restriction; or

b.   (for unregistered land only) a reference to a survey plan of the Restricted Area, prepared by a Massachusetts Registered Land Surveyor, that has been recorded as a plan with the appropriate registry of deeds;

5.   an 8 1/2" x 11" sketch plan showing the location of the Restricted Area in relation to the boundaries of the disposal site to the extent that the boundaries of the disposal site have been established.

(b)   name(s) of the property owner(s);

(c)   if a person(s) signing the Grant of Environmental Restriction is not an individual signing on his/her own behalf, but rather on behalf of an entity (LLC, LLP, limited partnership, etc.), or as trustee, executor, or attorney in fact, documentation shall be submitted as an exhibit to the Grant of Environmental Restriction verifying that the person(s) signing the grant is authorized to do so.  If the property owner is a corporation, such documentation shall consist of:

1.   a certified Registry copy of a Clerk's Certificate of Incumbency from the clerk of the corporation certifying that the officer(s) signing the Grant of Environmental Restriction on behalf of the corporation held his or her office as of the date of the Grant of Environmental Restriction; and

2.   unless the corporate officer(s) signing the Grant of Environmental Restriction holds the office of both president or vice president and treasurer or assistant treasurer, a certified Registry copy of a Clerk's Certificate from the clerk or secretary of the corporation certifying a corporate vote, resolution, or by-law authorizing the officer(s) to do so;

(d)   the disposal site name and DEP Release Tracking Number(s);

(e)   a statement that the Grant of Environmental Restriction is a gift to the Department pursuant to M.G.L. c. 21E, s. 6;

(f)   a statement that the Grant of Environmental Restriction shall be binding upon the property owner and any parties claiming by, through, or under said owner, and shall inure to the benefit of all parties claiming by, through or under the Department;

(g)   an Activity and Use Limitation Opinion that meets the requirements of 310 CMR 40.1071(1)(b);

(h)   a statement that the Grant of Environmental Restriction shall run in perpetuity or for a specified number of years, and that the Environmental Restriction conforms to M.G.L. c. 184, s. 26;

(i)   a precise description of the Site Activities  and Uses which in accordance with the Activity and Use Limitation Opinion are restricted on the property such as:

1.   construction or placement of buildings, utilities, roadways, parking lots or other structures;

2.   excavating, dredging or otherwise removing sediments, soils, loam, peat, sand, gravel, rock or other mineral substance;

3.   planting, removal or destruction of trees, shrubs, or other vegetation;

4.   using a private well to supply groundwater for human consumption; or

5.   other Site Activities and Uses which would likely result in significant risk or a substantial hazard from exposures to oil and/or hazardous material if the Site  Activity and Use were to take place on the property;

(j)   a precise description of the obligations and conditions which, in accordance with the Activity and Use Limitation Opinion, are necessary to meet the objectives of the Grant of Environmental Restriction.  Such obligations may include the continued proper operation of remedial actions, specific procedures governing excavation activities to protect workers and disposal site neighbors, and the erection and maintenance of fences to prohibit access of unauthorized persons to the disposal site;

(k)   a precise description of Site Activities and Uses, which, in accordance with the Activity and Use Limitation Opinion, may be permitted on the subject property, including without limitation specific provisions for purposes of maintenance, alteration, or repair of utilities, or specific types of land uses;

(l)   except where the property to be restricted is not part of a disposal site, procedures to be followed when an emergency requires immediate excavation of contaminated soil to repair utility lines or other infrastructure on the disposal site, or to respond to other types of emergencies (e.g., fire or floods) that may result in a significant risk of harm from exposure to oil and/or hazardous material at the disposal site, including:

1.   notifying the Department within two hours of obtaining knowledge of such emergency condition;

2.   limiting disturbance of contaminated media to the minimum reasonably necessary to adequately respond to the emergency; and

3.   undertaking specified precautions to minimize exposure of workers and neighbors of the disposal site to contaminated media (e.g., the need for specific types of protective clothing for workers conducting the excavation, and procedures for minimizing the liberation of contaminated dust); and

4.   engaging the services of an LSP to prepare or supervise preparation and implementation of a written plan for restoring the site to a condition consistent with the Grant of Environmental Restriction, and to review and evaluate response actions to ensure minimal disturbance of contaminated media.  A copy of such plan shall be submitted to the Department within ten days of its execution, with an Opinion that establishes whether the property subject to the Grant of Environmental Restriction has been restored to a condition consistent with the Grant of Environmental Restriction.

(m)   easements for the term of the Grant of Environmental Restriction to the Department, its agents, contractors, subcontractors, and employees for purposes of providing access to the subject property to inspect the area subject to the Grant of Environmental Restriction to ensure compliance with its terms, and to conduct response actions consistent with M.G.L. c. 21E and the 310 CMR 40.0000;

(n)   a provision that the Grant of Environmental Restriction shall run with the land;

(o)   an agreement to incorporate either in full or by reference the Grant of Environmental Restriction into all future deeds, easements, mortgages, leases, licenses, occupancy agreements, or any other instruments conveying an interest in and/or a right to use the property;

(p)   the procedures for amending and releasing the Grant of Environmental Restriction as described in 310 CMR 40.1080 and 40.1083;

(q)   title reference by which the property owner(s) acquired title to the property; and

(r)   the notarized signature(s) of the property owner(s), the notarized signature and seal of the LSP who signed the Activity and Use Limitation Opinion, and the signature of the Commissioner.

(3)   Recording/Registering Grants of Environmental Restriction.  The Grant of Environmental Restriction shall be recorded and/or registered in accordance with the following:

(a)   the Grant of Environmental Restriction shall be duly recorded and/or registered by the property owner in the appropriate Registry of Deeds and/or Land Registration Office within 30 days of the property owner's receipt from the Department of the Grant of Environmental Restriction as approved; and

(b)   within 30 days of recording and/or registering any Grant of Environmental Restriction, the property owner shall submit to the Department:

1. a certified Registry copy of the Grant of Environmental Restriction bearing the book and page/instrument number and/or document number; and

2.   a Registry copy of the required survey plan(s) referenced in the Grant of Environmental Restriction, bearing the plan book/plan number(s);

(4)   Subordination Agreement  The property owner shall obtain and record one or more Subordination Agreements, using Form 1072B set forth in 310 CMR 40.1099, to ensure that the respective interests in the property are subordinated to the Grant of Environmental Restriction.  Any Subordination Agreement(s) shall be recorded and/or registered in the appropriate Registry of Deeds and/or Land Registration Office immediately after the recording and/or registration of the Grant of Environmental Restriction.  Subordination Agreements shall be obtained from:

(a)   any and all holders of a prior interest in the Restricted Area, and

(b)   from any and all holders of a prior interest in the Property insofar as such interest affects those interests created under the Grant of Environmental Restriction.

40.1072:   Process for Applying for a Grant of Environmental Restriction

(1)   The Department shall review each application for a Grant of Environmental Restriction to ensure that it conforms to all requirements established herein for such instrument.

(2)   An application for a Grant of Environmental Restriction shall consist of:

(a)   a completed Form 1072A and, if applicable, Form 1072B, set forth in 310 CMR 40.1099,

(b)   all other applicable documents set forth in 310 CMR 40.1071; and

(c)   a certification of title issued to the Department by an insured title examiner certifying title in the Grantor, and including all encumbrances of record.

(3)   An application for a Grant of Environmental Restriction shall not be deemed complete if the Department determines that a Grant of Environmental Restriction application:

(a)   fails to contain all required information listed in 310 CMR 40.1071;

(b)   fails to include the applicable fee established by 310 CMR 4.10(10)(g)(4); or

(c)   is incorrectly filled out.

(4)   The Department has no obligation to accept or review an incomplete Grant of Environ-mental Restriction application.

(5)   Processing a Grant of Environmental Restriction Application.  For purposes of 310 CMR 4.10(10)(g), the computation of time periods shall commence on the day following the day a Grant of Environmental Restriction application is received at the appropriate Department office or on the day following the day the Grant of Environmental Restriction application fee is received, whichever occurs later.

(a)   The applicant and the Department may, by written agreement, extend any schedule for timely action or individual portion thereof for a Grant of Environmental Restriction application pursuant to 310 CMR 4.00 and 310 CMR 40.1072.

(b)   Administrative Completeness Review.  The Department shall conduct an Administrative Completeness Review of a Grant of Environmental Restriction Application in accordance with 310 CMR 4.00 and 310 CMR 40.1072.  The Administrative Completeness Review shall determine whether all required elements of the application have been submitted by the applicant.

1.   Initial Administrative Completeness Review (AC-1).  The initial AC-1 review shall comply with the following requirements:

a.   The  AC-1 Review shall result in a written determination of administrative completeness or a statement of administrative deficiencies.

b.   A determination of administrative completeness shall mean that the permit application may proceed to Technical Review.

c.   A statement of administrative deficiencies shall end the AC-1 review period.

d.   The Department shall send a determination of administrative completeness or a statement of administrative deficiencies to the applicant in writing within 31 days of  the date a Grant of Environmental Restriction application is received at the appropriate Department office or on the day following the day the Grant of Environmental Restriction application fee is received, whichever occurs later. If the application is not complete, the Department shall identify the information necessary to complete the application in the statement of administrative deficiencies.

2.   Second Administrative Completeness Review (AC-2).  If the Department issues a statement of administrative deficiencies, a second Administrative Completeness Review, AC-2, shall be conducted upon submittal of additional information by the applicant.  Such AC-2 review shall be conducted in accordance with the following requirements:

a.   If the Department issues a statement of administrative deficiencies, the Department shall have an additional 30 days for a second Administrative Completeness Review, AC-2, beginning the day after receipt of material submitted by the applicant in response to the statement of administrative deficiencies issued in AC-1

b.   The Department may request additional information during the course of AC-2 review.

c.   The AC-2 review shall result in a determination of administrative completeness or a denial of the permit application.

d.   A denial of the permit application shall be subject to appeal in accordance with 310 CMR 40.0050, provided that in any adjudicatory hearing the issues shall be limited to the question of whether or not the application submitted was administratively complete.  If the applicant prevails in such proceeding, the Department shall begin the next step of its review pursuant to the schedule for timely action.

3.   Effect of Determination.  A determination of administrative completeness shall not constitute any finding with respect to the technical suitability, adequacy or accuracy of the materials submitted, and shall be no bar to a request to amend, revise, replace, or supplement such materials based on technical suitability, adequacy or accuracy.

(c)   Technical Review of Grant of Environmental Restriction Applications.   The Department shall conduct a Technical Review of each Grant of Environmental Restriction application to ensure that it conforms to the requirements established herein for such instruments.  This review shall ensure that:

1.   the instrument provides adequate and appropriate identification of property subject to the Grant of Environmental Restriction;

2.   the person granting the Grant of Environmental Restriction is the owner of record;

3.   all prior interests in the Restricted Area have been subordinated; and

4.   the activities to be restricted, permitted, performed, and conditioned are clearly specified.

(d)   Procedures for Initial Technical Review (T-1).

1.   An Initial Technical Review shall result in a decision to approve the Grant of Environmental Restriction, or in a statement of technical deficiencies in the application and supporting materials.  The Department's decision to issue a statement of deficiencies shall not be deemed to give rise to any right to an adjudicatory hearing.

2.   An initial T-1 review shall be conducted in accordance with the following requirements:

a.   The Department may request additional information during the course of T-1 review.

b.   A statement of technical deficiencies shall end the T-1 review period.

c.   An applicant shall respond within 30 days of the date of issuance of a statement of technical deficiencies by submitting any additional material to support the application and address deficiencies.

3.   If the applicant fails to respond to a statement of technical deficiencies, the application shall be reviewed on the record.

4.   As established in 310 CMR 4.10(10)(g), and except as agreed pursuant to 310 CMR 40.1072(5)(a), the Department shall have 60 days to complete its T-1 review from the date of the Department's determination of administrative completeness.

(e)   Supplemental Technical Review (T-2).  

1.   The purpose of a supplemental technical review (T-2) is to allow the Department to review technical information submitted by the applicant in response to a statement of technical deficiencies issued in T-1.

2.   A T-2 review shall result in a decision to approve or disapprove a Grant of Environmental Restriction.

3.   Except as agreed pursuant to 310 CMR 40.1072(5)(a), the Department shall have an additional 45 days for a T-2 review from the day after the receipt of material submitted by the applicant in response to a statement of technical deficiency.

4.   The Department may request more information at any time during the T-2 review.

(6)   Approvals of Grants of Environmental Restrictions.

(a)   For each application for a Grant of Environmental Restriction, the Department shall prepare a statement specifying that the application is approvable, or, as appropriate, a statement describing the basis for disapproving the application.

(b)   The Department's review shall be limited to determining whether the proposed Grant of Environmental Restriction meets the requirements of 310 CMR 40.1071.

(c)   The Department's review shall not encompass issues concerning the adequacy of response actions at the subject disposal site (including whether the release and any associated risks have been adequately characterized, and whether the Activity and Use Limitation Opinion provides an adequate basis for a finding that a level of No Significant Risk exists or has been achieved) or that substantial hazards have been eliminated.

(d)   The Department may disapprove an application for a Grant of Environmental Restriction if it determines that:

1.   the application does not provide adequate and appropriate identification of the property to be subject to the Grant of Environmental Restriction;

2.   the person granting the Grant of Environmental Restriction is not the owner of record;

3.   all prior interests in the Restricted Area have not been subordinated;

4.   the activities to be restricted, permitted, performed, and conditioned are not clearly specified; or

5.   the application is not completed by an applicable deadline, or contains information which the applicant reasonably knew or should have known was false or misleading.

40.1073:   Environmental Restrictions for Disposal Sites Where the Department Conducts Response Actions

(1)   The Department may impose Environmental Restrictions upon any disposal site for which the Department conducts a response action.  Any Environmental Restriction imposed by the Department shall be recorded and/or registered in the appropriate Registry of Deeds and/or Land Registration Office.

(2)   The Department may impose and record and/or register an Environmental Restriction if the property owner fails to record or register an Environmental Restriction in accordance with 310 CMR 40.1071, and may seek to recover the Costs thereof.

(3)   In the event that the Department establishes an administrative record pursuant to 310 CMR 40.1300 for a response action that consists, in whole or in part, of the imposition of an Environmental Restriction by the Department, the Department shall include the Environmental Restriction in the administrative record.

(4)   In the event that the Department does not establish an administrative record pursuant to 310 CMR 40.1300 for a response action that consists, in whole or in part, of the imposition of an Environmental Restriction by the Department, the Department shall provide to the following persons  notice of such intent to impose an Environmental Restriction:

(a)   any owner of the property whose name and address is known to the Department;

(b)   any other person having a recorded or registered ownership interest in the property whose name and/or address is known to the Department;

(c)   any person having an unrecorded or unregistered ownership interest in the property whose interest, name and address is known to the Department; and

(d)  any person having an unrecorded or unregistered ownership interest in the property whose interest, name, and address is unknown to the Department.

(5)   The notice required by 310 CMR 40.1073(4) shall include all of the following:

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

(b)   a concise statement of the alleged factual and legal basis for the Environmental Restriction;

(c)   a statement that a person having an ownership interest in the property has a right to an adjudicatory hearing on such Environmental Restriction; and

(d)   a statement of the requirements that must be complied with by a person having an ownership interest in the property in order to avoid being deemed to have waived his or her right to an adjudicatory hearing.

(6)   Each notice required by 310 CMR 40.1073(4)(a) shall be served by one or more of the following methods:

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

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

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

(d)   with respect to any person having an unrecorded or unregistered ownership interest in the property whose interest, name, or address is unknown to the Department, by publication in a newspaper of general circulation serving the community where the property is located.

(7)   Subject to the provisions of 310 CMR 40.1073(8), in the event that the Department does not establish an administrative record pursuant to 310 CMR 40.1300, the following person's shall have the right to an adjudicatory hearing whenever the Department seeks to record and/or register an Environmental Restriction:

(a)   any owner of the property;

(b)   any other person having a recorded or registered ownership interest in the property; and

(c)   any person having an unrecorded or unregistered ownership interest in the property.

(8)   Any person who has a right to an adjudicatory hearing pursuant to 310 CMR 40.1073(7) shall be deemed to have waived the right to an adjudicatory hearing unless the Department receives from such person a written statement that denies that the Department has a basis to record and/or register the Environmental Restriction, and does so subject to and in compliance with applicable provisions of the Department's Rules for Adjudicatory Proceedings, 310 CMR 1.00, within 21 days of the following:

(a)   with respect to the notice required by 310 CMR 40.1073(4)(a), (b) or (c), the date of issuance of the notice in accordance with 310 CMR 40.1073(6)(a), (b) or (c); or

(b)   with respect to the notice required by 310 CMR 40.1073(4)(d), the date of publication of the notice in accordance with 310 CMR 40.1073(6)(d).

(9)   The Department shall not be required to prove any facts alleged by the Department in the notice required by 310 CMR 40.1073(4) unless such facts are expressly denied in the statement filed pursuant to 310 CMR 40.1073(8).

40.1074:   Notice of Activity and Use Limitation

(1)   General Requirements.  At any disposal site or portion of a disposal site where a RP, PRP or Other Person is conducting a response action(s) for which a Notice of Activity and Use Limitation has been selected as a form of Activity and Use Limitation pursuant to 310 CMR 40.1070, the following requirements shall be met:

(a)   the Notice of Activity and Use Limitation shall be prepared using Form 1075 set forth in 310 CMR 40.1099;

(b)   an Activity and Use Limitation Opinion shall be submitted on a form prescribed by the Department to the Department with a Response Action Outcome Statement pursuant to 310 CMR 40.1056(2)(h) and shall specify:

1.   why the Notice of Activity and Use Limitation is appropriate to:

a.   achieve and/or maintain a level of No Significant Risk for a Class A or B Response Action Outcome; or

b.   eliminate a substantial hazard for a Class C Response Action Outcome.

2.   Site Activities and Uses which are inconsistent with maintaining a condition of No Significant Risk or eliminating a Substantial Hazard;

3.   Site Activities and Uses to be permitted; and

4.   obligations and conditions necessary to meet the objectives of the Notice of Activity and Use Limitation;

(c)   a Notice of Activity and Use Limitation shall be recorded and/or registered as specified in 310 CMR 40.1074(3);

(d)   except as provided in 310 CMR 40.0932(5)(d)c., a Notice of Activity and Use Limitation shall not be used to limit access to and/or use of groundwater for a Class A or B RAO pursuant to 310 CMR 40.1035 and 310 CMR 40.1045; and

(e)   Prior to the recording and/or registration of a Notice of Activity and Use Limitation pursuant to 310 CMR 40.1074(3), current holders of any record interest(s) in the area subject to the proposed Notice (including without limitation, owners, lessees, tenants, mortgagees, and holders of easements or licenses) shall be notified by certified mail, return receipt requested, of the existence and location of oil and/or hazardous material within such area and the terms of such proposed Notice.  Such proposed Notice of Activity and Use Limitation shall not be recorded and/or registered until at least 30 days after such notification of current record interest holders has occurred, unless all parties receiving such notification provide a written waiver of the 30-day waiting period to the property owner;

(f)   the person(s) signing the Notice of Activity and Use Limitation shall submit a statement, on a form prescribed by the Department, certifying that:

1.   the person(s) or entity identified as the property owner(s) on the Notice owned the property at the time the Notice was recorded and/or registered pursuant to 310 CMR 40.1074(3); and

2.   record interest-holders were notified of the proposed Notice pursuant to 310 CMR 40.1074(1)(e).

(2)   Contents of a Notice of Activity and Use Limitation.  A Notice of Activity and Use Limitation shall contain the following information:

(a)   the location of the property, including:

1.   the property's street address;

2.   a metes and bounds description of the parcel(s) of land which contain(s) the area that is subject to the Notice of Activity and Use Limitation;

3.   a reference to a survey plan of such parcel(s) of land, prepared by a Massachusetts Registered Land Surveyor, that has been recorded as a plan with the appropriate registry of deeds and/or a Land Court Plan;

4.   if the area subject to the Notice of Activity and Use Limitation comprises only a portion of the property described in 310 CMR 40.1074(2)(a)2., a metes and bounds description of the portion subject to the Notice of Activity and Use Limitation; and

a.   (for registered land only) an 8 1/2" x 11" survey plan, prepared by a Massachusetts Registered Land Surveyor, which shows the metes and bounds of the portion subject to the Notice of Activity and Use Limitation, attached as an exhibit to the Notice of Activity and Use Limitation; or

b.   (for unregistered land only) a reference to a survey plan of the portion subject to the Notice of Activity and Use Limitation, prepared by a Massachusetts Registered Land Surveyor, that has been recorded as a plan with the appropriate registry of deeds; and

5.   an 8 1/2" x 11"  sketch plan, attached as an exhibit to the Notice of Activity and use Limitation, showing the location of the portion subject to the Notice of Activity and Use Limitation in relation to the boundaries of the disposal site to the extent that the boundaries of the disposal site have been established;

(b)   name(s) of the property owner(s);

(c)   if a person(s) signing the Notice of Activity and Use Limitation is not an individual signing on his/her own behalf, but rather on behalf of an entity (LLC, LLP, limited partnership, etc.), or as trustee, executor, or attorney in fact, documentation of the person(s)' signatory authority as described in 310 CMR 40.1071(2)(c), attached as an exhibit to the Notice of Activity and Use Limitation;

(d)   the disposal site name and DEP Release Tracking Number(s);

(e)   a description of the Site Activities and Uses permitted on the subject property, including but not limited to specific provisions for purposes of maintenance or repair of utilities, and specific types of land uses;

(f)   a description of any obligations and/or conditions for conducting the permitted Site Activities to meet the objectives of the Notice of Activity and Use Limitation;

(g)   a description of any Site Activities and Uses that are inconsistent with the Response Action Outcome;

(h)   an agreement to reference this Notice in all future deeds, easements, mortgages, leases, licenses, occupancy agreements, or any other instruments which convey an interest in and/or a right to use the property subject to the Activity and Use Limitation pursuant to the Response Action Outcome;

(i)   reference to procedures to be followed to ensure that changes in the permitted activities and/or uses meet the objectives of the Notice of Activity and Use Limitation; and

(j)   the notarized signature(s) of the property owner(s), and the notarized signature and seal of the LSP who signed the Activity and Use Limitation Opinion.

(3)   Recording/Registering Notices  The property owner shall record and/or register any Notice of Activity and Use Limitation in the appropriate Registry of Deeds and/or Land Registration Office.

(4)   Filing with the Department:  Within 30 days of recording and/or registering any Notice of Activity and Use Limitation, the property owner shall submit the following to the Department:

(a)   a certified Registry copy of the Notice bearing the book and page/instrument number and/or document number; and

(b)   a Registry copy of the required survey plan(s) referenced in the Notice, bearing the plan book/plan number(s);

(5)   Upon transfer of any interest in and/or a right to use the property or a portion thereof that is subject to a Notice of Activity and Use Limitation, the Notice of Activity and Use Limitation shall be incorporated either in full or by reference into all future deeds, easements, mortgages, leases, licenses, occupancy agreements or any other instrument of transfer.

40.1075:   Form of Notice of Activity and Use Limitation

Any person who intends to limit the Site Activities and Uses of property through a Notice of Activity and Use Limitation shall complete Form 1075 set forth in 310 CMR 40.1099 in accordance with 310 CMR 40.1074.

40.1080:   Changes in Site Activities and/or Uses or Other Site Conditions After a Response Action Outcome with an Activity and Use Limitation Has Been Filed

(1)   Evaluation of Contemplated Site Activity and/or Use Changes.  Where a Response Action Outcome is based upon certain restrictions, limitations and/or conditions on Site Activities and/or Uses, any contemplated Site Activity and/or Use that is not specifically permitted by an Activity and Use Limitation and that may invalidate the condition of No Significant Risk or No Substantial Hazards, whichever is applicable to the Response Action Outcome, were it to occur, shall be evaluated by an LSP before such  Site Activity and/or Use is implemented.  Such evaluation shall be submitted to the Department using a transmittal form provided for such purpose and shall include:

(a)   an LSP Opinion on a form prescribed by the Department as to whether, based on an evaluation of the contemplated Site Activity and/or Use pursuant to the risk characterization process in 310 CMR 40.0900, a condition of No Significant Risk or a condition of No Substantial Hazard, whichever is applicable, will continue to exist if the contemplated changes in Site Activity and/or Use were to occur;

(b)   the risk characterization conducted pursuant to 310 CMR 40.0900 evaluating the contemplated Site Activity and/or Use on which the LSP Opinion in 310 CMR 40.1080(1)(a) is based; and

(c)   a response action plan in accordance with 310 CMR 40.1067 and 310 CMR 40.0000 that specifies any additional response actions necessary to maintain or achieve a condition of No Significant Risk or No Substantial Hazard for the contemplated Site Activity and/or Use and the objectives of the Activity and Use Limitation, if any such LSP Opinion  indicates that a condition of No Significant Risk or a condition of No Substantial Hazard would no longer be met as a result of the contemplated changes in Site Activity and/or Use.

(2)   Procedures for Additional Response Actions.  Additional response actions required to maintain a level of No Significant Risk or No Substantial Hazard, for the contemplated changes in Site Activities or Uses shall be completed before the new or altered activities commence in accordance with the following:

(a)   any additional response actions shall be conducted pursuant to  310 CMR 40.0000 and specifically 310 CMR 40.1067;

(b)   such response actions shall achieve a level of No Significant Risk or No Substantial Hazard, for the new/altered Site Activities or  Uses contemplated for the disposal site;

(c)   the Activity and Use Limitation shall be amended or released as appropriate pursuant to 310 CMR 40.1081 to include the new or altered Site Activities or Uses identified in the LSP Opinion under 310 CMR 40.1080(1); and

(d)   a revised Response Action Outcome Statement shall be submitted to the Department to reflect any changes from the previous Response Action Outcome Statement.

(3)   At any disposal site which relies, in whole or in part, upon a Grant of Environmental Restriction to maintain a level of No Significant Risk or No Substantial Hazard and where such Environmental Restriction is not granted in perpetuity, the RPs, PRPs and Other Persons liable and/or responsible for such site shall upon expiration of the Grant of Environmental Restriction either comply with the procedures set forth in 310 CMR 40.1080(1) and (2), or take any response actions required by 310 CMR 40.0000 to meet the objectives of the Grant of Environmental Restriction.

40.1081:  Amendment of Activity and Use Limitations

(1)   An Activity and Use Limitation shall be amended where pursuant to an LSP Opinion required by 310 CMR 40.1080 such amendment of an Activity and Use Limitation is deemed necessary to meet the objectives of the Activity and Use Limitation (e.g., either to maintain a level of No Significant Risk, or to eliminate a substantial hazard for the new or altered Site Activities and Uses).

(2)   An Activity and Use Limitation may also be amended to expand or reduce the list(s) of restricted and/or permitted Site Activities and Uses, and obligations and/or conditions listed therein based on changed circumstances or other grounds.

(3)   Amending a Grant of Environmental Restriction.   Grant of Environmental Restriction shall be amended in accordance with the following:

(a)   an Amendment to Grant of Environmental Restriction shall be prepared using Form 1082A set forth in 310 CMR 40.1099;

(b)   if a person(s) signing the Amendment to Grant of Environmental Restriction is not an individual signing on his/her own behalf, but rather on behalf of an entity (LLC, LLP, limited partnership, etc.), or as trustee, executor, or attorney in fact, documentation of the person(s) signatory authority, as described in 310 CMR 40.1071(2)(c), shall be submitted as an exhibit to the Amendment to Grant of Environmental Restriction;

(c)   the Amendment to Grant of Environmental Restriction shall be submitted to the Department for the Commissioner's signature, with a certification of title issued to the Department certifying title in the Grantor and including all encumbrances of record, any necessary subordination agreements, the Activity and Use Limitation Opinion required by 310 CMR 40.1081(1) and the applicable fee pursuant to 310 CMR 4.00;

(d)   the Amendment to Grant of Environmental Restriction shall be recorded and/or registered by the property owner at the appropriate Registry(ies) of Deeds and/or Land Registration Office(s) within 30 days of the property owner's receipt from the Department of the amendment as approved by the Commissioner;

(e)   local officials and the public shall be informed of the Amendment to Grant of Environmental Restriction pursuant to 310 CMR 40.1403(7); and

(f)   within 30 days of recording and/or registering any Amendment to Grant of Environmental Restriction, the property owner shall submit to the Department:

1.   a certified Registry copy of the Amendment to Grant of Environmental Restriction bearing the book and page/instrument number and/or document number; and

2.   If the property subject to the Grant of Environmental Restriction is unregistered land, a Registry copy of the Grant of Environmental Restriction being amended.

(4)   Amending a Notice of Activity and Use Limitation.  A Notice of Activity and Use Limitation shall be amended in accordance with the following:

(a)   an Amendment to Notice of Activity and Use Limitation shall be prepared using the Form 1082B set forth in 310 CMR 40.1099;

(b)   if a person(s) signing the Amendment to Notice of Activity and Use Limitation is not an individual signing on his/her own behalf, but rather on behalf of an entity (LLC, LLP, limited partnership, etc.), or as trustee, executor, or attorney in fact, documentation of the person(s) signatory authority, as described in 310 CMR 40.1071(2)(c), shall be submitted as an exhibit to the Amendment to Notice of Activity and Use Limitation;

(c)    prior to the recording and/or registration of an Amendment to Notice of Activity and Use Limitation pursuant to 310 CMR 40.1081(4)(d), current holders of any record interest(s) in the area subject to the proposed Amendment to Notice of Activity and Use Limitation (including without limitation, owners, lessees, tenants, mortgagees, and holders of easements or licenses) shall be notified by the property owner by certified mail, return receipt requested, of the existence and location of oil and/or hazardous material within such area and the terms of such proposed Amendment to Notice of Activity and Use Limitation.  Such proposed Amendment to Notice of Activity and Use Limitation shall not be recorded and/or registered until at least 45 days after such notification of current record interest holders has occurred, unless all parties receiving such notification provide a written waiver of the 45-day waiting period to the property owner;

(d)   the property owner shall record and/or register any Amendment to Notice of Activity and Use Limitation in the appropriate Registry of Deeds and/or Land Registration Office;

(e)   a certified Registry copy of the Amendment to Notice of Activity and Use Limitation shall be submitted to the Department with the LSP Opinion described in 310 CMR 40.1081(1) within 30 days of recording and/or registering the Amendment to Notice of Activity and Use Limitation;

(f)   the person(s) signing the Amendment to Notice of Activity and Use Limitation shall submit a statement, on a form prescribed by the Department, certifying that:

1.   the person(s) or entity identified as the property owner(s) on the Amendment to Notice of Activity and Use Limitation owned the property at the time the Amendment to Notice of Activity and Use Limitation was recorded and/or registered pursuant to 310 CMR 40.1081(4)(d); and

2.   record interest-holders were notified of the proposed Amendment to Notice of Activity and Use Limitation pursuant to 310 CMR 40.1081(4)(c);

(g)   local officials and the public shall be informed of the Amendment to Notice of Activity and Use Limitation pursuant to 310 CMR 40.1403(7); and

(h)   no later than 30 days after the recording and/or registration of the Amendment to Notice of Activity and Use Limitation, the following shall be submitted to the Department:

1.   a certified Registry copy of the Amendment to Notice of Activity and Use Limitation bearing the book and page/instrument number and/or document number;

2.   a Registry copy of the required survey plan(s) referenced in the Amendment to Notice of Activity and Use Limitation, bearing the plan book/plan number(s); and

3.   if the property subject to the Activity and Use Limitation is unregistered land, a Registry copy of the Notice of Activity and Use Limitation being amended.

40.1082:   Process for Amending Grant of Environmental Restriction

(1)   The Department shall review each application for an Amendment to a Grant of Environ-mental Restriction to ensure that it conforms to all requirements established herein for such instruments.

(2)   An application for an Amendment to Grant of Environmental Restriction shall consist of:

(a)   a completed Form 1082A, set forth in 310 CMR 40.1099; 

(b)   all other applicable documents set forth in 310 CMR 40.1081: and

(c)   a certification of title that meets the requirements of 310 CMR 40.1072(2).

(3)   An application for an Amendment to Grant of Environmental Restriction shall not be deemed complete if the Department determines that the application:

(a)   fails to contain all required information listed in 310 CMR 40.1081;

(b)   fails to include the applicable fee established by 310 CMR 4.10(10)(h)(4); or

(c)   is incorrectly filled out.

(4)   The Department has no obligation to accept or review an incomplete Amendment to a Grant of Environmental Restriction application.

(5)   Processing an Application for an Amendment to Grant of Environmental Restriction.  For purposes of 310 CMR 4.10(10)(h), the provisions of 310 CMR 40.1072 for computing time for reviews, conducting Administrative Completeness (AC-1 and AC-2) and Technical Reviews (T-1 and T-2), and for approving or disapproving an application shall apply to the Department's review of a proposed Amendment to Grant of Environmental Restriction.

(6)   An Amendment to Grant of Environmental Restriction shall become effective upon recording and/or registering with the appropriate Registry of Deeds and/or Land Registration Office.

40.1083:   Release or Termination of Activity and Use Limitations

(1)   Release of Activity and Use Limitation.

(a)   In cases where, as a result of additional response actions pursuant to 310 CMR 40.0000 conducted at a disposal site or a portion of a disposal site, a recorded and/or registered Activity and Use Limitation is no longer necessary to maintain a level of No Significant Risk, or No Substantial Hazard, such Activity and Use Limitation shall be released as follows:

1.   an LSP Opinion shall be provided on a form prescribed by the Department which explains why the Activity and Use Limitation is no longer necessary to maintain a level of No Significant Risk or No Substantial Hazard;

2.   the Activity and  Use Limitation shall be released in accordance with 310 CMR 40.1083(1)(d) or 310 CMR 40.1083(1)(e), whichever is appropriate; and

3.   a revised Response Action Outcome Statement and supporting documentation pursuant to 310 CMR 40.1056 reflecting any changes in the class of response Action Outcome as the result of additional response actions and the release or termination shall be submitted to the Department.

(b)   In cases where the termination of a Notice of Activity and Use Limitation is required pursuant to 310 CMR 40.1085, the Notice of Activity and Use Limitation shall be terminated in accordance with 310 CMR 40.1083(1)(e).  No LSP Opinion shall be required to terminate the Notice of Activity and Use Limitation, provided that the provisions of 310 CMR 40.1085 are satisfied.

(c)   In cases where the Activity and Use Limitation is being released because additional response actions are necessary to support the conclusion that a condition of No Significant Risk has been achieved  or that all Substantial Hazards have been eliminated at the property, the Activity and Use Limitation shall be released in accordance with 310 CMR 40.1083(1)(d) or 310 CMR 40.1083(1)(e), whichever is applicable.

(d)   Releasing a Grant of Environmental Restriction.  A Grant of Environmental Restriction shall be released in accordance with the following procedures:

1.   a Release of Grant of Environmental Restriction shall be prepared using Form 1084A or form 1084E set forth in 310 CMR 40.1099, whichever is applicable, and submitted to the Department for the Commissioner's signature and accompanied by the appropriate fee as established in 310 CMR 4.00;

2.   within 30 days of the date of the property owner's receipt from the Department of the approved Release of Grant of Environmental Restriction, the Release of Grant of Environmental Restriction shall be recorded and/or registered at the appropriate Registry of Deeds and/or Land Registration Office;

3.   local officials and the public shall be informed of the Release of Grant of Environmental Restriction pursuant to 310 CMR 40.1403(7); and

4.   within 30 days of recording and/or registering any Release of Grant of Environmental Restriction, the property owner shall submit to the Department: and

a.   a certified Registry copy of the Release of Grant of Environmental Restriction bearing the book and page/instrument number and/or document number;

b.   if the property subject to the Grant of Environmental Restriction is unregistered land, a Registry copy of the Grant of Environmental Restriction being released.

(e)   A Notice of Activity and Use Limitation shall be terminated in accordance with the following procedures:

1.   a Termination of Notice of Activity and Use Limitation shall be prepared using the appropriate form set forth in 310 CMR 40.1099;

2.   if a person(s) signing the Termination of Notice of Activity and Use Limitation is not an individual signing on his/her own behalf, but rather on behalf of an entity (LLC, LLP, limited partnership, etc.), or as trustee, executor, or attorney in fact, documentation of the person(s) signatory authority, as described in 310 CMR 40.1071(2)(c), shall be submitted as an exhibit to the Termination of Notice of Activity and Use Limitation;

3.   the Termination of Notice of Activity and Use Limitation shall be recorded and/or registered at the appropriate Registry of Deeds and/or Land Registration Office;

4.   the person(s) signing the Termination of Notice of Activity and Use Limitation shall submit a statement, on a form prescribed by the Department, certifying that the person(s) or entity identified as the property owner(s) on the termination owned the property at the time the termination was recorded and/or registered pursuant to 310 CMR 40.1083(1)(e)3.;

5.   local officials and the public shall be informed of the Termination of Notice of Activity and Use Limitation pursuant to 310 CMR 40.1403(7); and

6.   within 30 days of recording and/or registering any Termination of Notice of Activity and Use Limitation, the property owner shall submit to the Department a certified Registry copy of the Termination of Notice of Activity and Use Limitation bearing the book and page/instrument number and/or document number.

(2)   Partial Release of Grant of Environmental Restriction.  In cases where, as a result of additional response actions pursuant to 310 CMR 40.0000 conducted at a disposal site or a portion of a disposal site, a recorded and/or registered Grant of Environmental Restriction is no longer necessary to maintain a level of No Significant Risk or to eliminate a substantial hazard at a portion of the property subject to the Grant of Environmental Restriction, such Grant of Environmental Restriction shall be partially released as to such portion of the property pursuant to the following procedures:

(a)   an LSP Opinion shall be provided on a form prescribed by the Department which explains why the Grant of Environmental Restriction is no longer necessary to maintain a level of No Significant Risk or to eliminate a substantial hazard at the portion of the property;

(b)   a Partial Release of Grant of Environmental Restriction shall be prepared using Form 1083A set forth in 310 CMR 40.1099 and submitted to the Department for the Commissioner's signature, accompanied by the LSP Opinion described in 310 CMR 40.1083(2)(a) and the appropriate fee established in 310 CMR 4.00;

(c)   a Partial Release of Grant of Environmental Restriction shall include a metes and bounds description of the portion of the property being released from the Grant of Environmental Restriction, and:

1.   (registered land only) an 8 1/2" x 11" survey plan, attached as an exhibit to the Partial Release of Grant of Environmental Restriction, prepared by a Massachusetts Registered Land Surveyor, which shows the metes and bounds of the portion of the property being released; or

2.   (registered land only) a reference to the Land Court Plan which shows the boundaries of the portion of the property being released; or

3.   (unregistered land only) reference to a survey plan of the portion of the property being released, prepared by a Massachusetts Registered Land Surveyor, meeting registry plan recording requirements, and recorded as a plan with the appropriate registry of deeds.

(d)   within 30 days of the date of the property owner's receipt from the Department of the approved Partial Release of Grant of Environmental Restriction, the Partial Release of Grant of Environmental Restriction shall be recorded and/or registered at the appropriate Registry of Deeds and/or Land Registration Office.

(e)   local officials and the public shall be informed of the Partial Release of Grant of Environmental Restriction pursuant to 310 CMR 40.1403(7);

(f)   a revised Response Action Outcome Statement and supporting documentation pursuant to 310 CMR 40.1056 reflecting any changes in the class of Response Action Outcome as the result of additional response actions and the Partial Release of Grant of Environmental Restriction shall be submitted to the Department; and

(g)   within 30 days of recording and/or registering any Partial Release of Grant of Environmental Restriction, the property owner shall submit to the Department:

1.   a certified Registry copy of the Partial Release of Grant of Environmental Restriction bearing the book and page/instrument number and/or document number;

2.   if the property subject to the Grant of Environmental Restriction is unregistered land, a Registry copy of the Grant of Environmental Restriction being partially released; and

3.   a Registry copy of the required survey plan(s) referenced in the Partial Release of Grant of Environmental Restriction bearing the plan book/plan number(s).

(3)   Partial Termination of a Notice of Activity and Use Limitation.  In cases where, as a result of additional response actions pursuant to 310 CMR 40.0000 conducted at a disposal site or a portion of a disposal site, a recorded and/or registered Notice of Activity and Use Limitation is no longer necessary to maintain a level of No Significant Risk or to eliminate a substantial hazard at a portion of the property subject to the Notice of Activity and Use Limitation, such Notice of Activity and Use Limitation shall be partially terminated as to such portion of the property pursuant to the following procedures:

(a)   an LSP Opinion shall be provided on a form prescribed by the Department which explains why the Notice of Activity and Use Limitation is no longer necessary to maintain a level of No Significant Risk or to eliminate a substantial hazard at the portion of the property;

(b)   a Partial Termination of Notice of Activity and Use Limitation shall be prepared using Form 1083B set forth at 310 CMR 40.1099;

(c)   if a person(s) signing the Partial Termination of Notice of Activity and Use Limitation is not an individual signing on his/her own behalf, but rather on behalf of an entity (LLC, LLP, limited partnership, etc.), or as trustee, executor, or attorney in fact, documentation of the person(s) signatory authority, as described in 310 CMR 40.1071(2)(c), shall be submitted as an exhibit to the Partial Termination of Notice of Activity and Use Limitation;

(d)   the Partial Termination of Notice of Activity and Use Limitation shall include a metes and bounds description of the portion of the property for which the Notice of Activity and Use Limitation is no longer required, and:

1.   (registered land only) an 8 1/2" x 11" survey plan, prepared by a Massachusetts Registered Land Surveyor, which shows the metes and bounds of the portion of the property; or

2.   (registered land only) a reference to the Land Court Plan which shows the boundaries of the portion of the property; or

3.   (unregistered land only) reference to a survey plan of the portion of the property, prepared by a Massachusetts Registered Land Surveyor, meeting registry plan recording requirements, and recorded as a plan with the appropriate registry of deeds.

(e)   the Partial Termination of Notice of Activity and Use Limitation shall be recorded and/or registered by the property owner at the appropriate Registry of Deeds and/or Land Registration Office;

(f)   the person(s) signing the Partial Termination of Notice of Activity and Use Limitation shall submit a statement, on a form prescribed by the Department, certifying that the person(s) or entity identified as the property owner(s) on the Partial Termination of Notice of Activity and Use Limitation owned the property at the time the Partial Termination of Notice of Activity and Use Limitation was recorded and/or registered pursuant to 310 CMR 40.1083(3)(e);

(g)   local officials and the public shall be informed of the Partial Termination of Notice of Activity and Use Limitation pursuant to 310 CMR 40.1403(7);

(h)   a revised Response Action Outcome Statement and supporting documentation pursuant to 310 CMR 40.1056 reflecting any changes in the class of Response Action Outcome as the result of additional response actions and the Partial Termination of Notice of Activity and Use Limitation shall be submitted to the Department; and

(i)   within 30 days of recording and/or registering any Partial Termination of Notice of Activity and Use Limitation, the property owner shall submit to the Department:

1.   a certified Registry copy of the Partial Termination of Notice of Activity and Use Limitation bearing the book and page/instrument number and/or document number;

2.   if the property subject to the Notice of Activity and Use Limitation is unregistered land, a Registry copy of the Notice of Activity and Use Limitation being partially terminated;

3.   a Registry copy of the required survey plan(s) referenced in the Partial Termination of Notice of Activity and Use Limitation bearing the plan book/plan number(s).

40.1084:   Process for Implementing a Release of Grant of Environmental Restriction or Partial Release of Grant of Environmental Restriction

(1)   The Department shall conduct a review of each application for a Release of Grant of Environmental Restriction or Partial Release of Grant of Environmental Restriction to ensure that it conforms to all legal requirements for such instruments.

(2)   An application for a Release of Grant of Environmental Restriction shall consist of a completed Form 1084A, set forth in 310 CMR 40.1099, in addition to all other applicable documents set forth in 310 CMR 40.1083.

(3)   An application for a Partial Release of Grant of Environmental Restriction shall consist of a completed Form 1083A, set forth in 310 CMR 40.1099, in addition to all other applicable documents set forth in 310 CMR 40.1083.

(4)   An application for a Release of Grant of Environmental Restriction or Partial Release of Grant of Environmental Restriction shall not be deemed complete if the Department determines that the application:

(a)   fails to contain all required information listed in 310 CMR 40.1083;

(b)   fails to include the applicable fee established by 310 CMR 4.10(10)(i)4.; or

(c)   is incorrectly filled out.

(5)   The Department has no obligation to accept or review an incomplete application for a Release of Grant of Environmental Restriction or Partial Release of Grant of Environmental Restriction.

(6)   Processing a Release of Grant of Environmental Restriction Application or Partial Release of Grant of Environmental Restriction Application.  For purposes of 310 CMR 4.10(10)(i), the provisions of 310 CMR 40.1072 for computing time for reviews, conducting Administrative Completeness (AC-1 and AC-2) and Technical Reviews (T-1 and T-2), and approving or disapproving of an application shall apply to the Department's review of a proposed Release of Grant of Environmental Restriction or Partial Release of Grant of Environmental Restriction.

(7)   A Release of Grant of Environmental Restriction or Partial Release of Grant of Environmental Restriction shall become effective upon recordation and/or registration with the appropriate Registry of Deeds and/or Land Registration Office.

40.1085:   Correction of Notices of Activity and Use Limitation

(1)   Except as provided by 310 CMR 40.1085(2), scriveners' errors and other non-substantive errors or omissions in a recorded Notice of Activity and Use Limitation, or in any Amendment, Partial Termination or Termination thereof, may be corrected by implementing a Confirmatory Activity and Use Limitation in accordance with this section;

(2)   A Confirmatory Activity and Use Limitation may not be used if the property subject to the Notice of Activity and Use Limitation is registered land.  In such cases, the errors must be corrected by either:

(a)   terminating the Notice of Activity and Use Limitation in accordance with 310 CMR 40.1083(1)(b) and immediately implementing a new Notice of Activity and Use Limitation in substitution thereof, in accordance with 310 CMR 40.1074; or

(b)   if the instrument being corrected is an Amendment to Notice of Activity and Use Limitation, implementing a new amendment in accordance with 310 CMR 40.1081.

(3)   Confirmatory Activity and Use Limitations may include any of the following:

(a)   Confirmatory Notice of Activity and Use Limitation;

(b)   Confirmatory Amendment to Notice of Activity and Use Limitation;

(c)   Confirmatory Partial Termination of Notice of Activity and Use Limitation; and

(d)   Confirmatory Termination of Notice of Activity and Use Limitation.

(4)   Confirmatory Activity and Use Limitations shall be implemented in accordance with the following:

(a)   a Confirmatory Activity and Use Limitation shall be prepared using the appropriate form set forth in 310 CMR 40.1099;

(b)   if a person(s) signing the Confirmatory Activity and Use Limitation is not an individual signing on his/her own behalf, but rather on behalf of an entity (LLC, LLP, limited partnership, etc.), or as trustee, executor, or attorney in fact, documentation of the person(s) signatory authority, as described in 310 CMR 40.1071(2)(c), shall be submitted as an exhibit to the Confirmatory Activity and Use Limitation;

(c)   the Confirmatory Activity and Use Limitation shall be recorded in the appropriate Registry of Deeds;

(d)   the person(s) signing the Confirmatory Activity and Use Limitation shall submit a statement, on a form prescribed by the Department, certifying that the person(s) or entity identified as the property owner(s) on the Confirmatory Activity and Use Limitation owned the property at the time the Confirmatory Activity and Use Limitation was recorded and/or registered pursuant to 310 CMR 40.1085(4)(c);

(e)   local officials and the public shall be informed of the Confirmatory Activity and Use Limitation pursuant to 310 CMR 40.1403(7);

(f)   no later than 30 days after the recording of the Confirmatory Activity and Use Limitation, the following shall be submitted to the Department:

1.   a certified Registry copy of the Confirmatory Activity and Use Limitation; and

2.   a Registry copy of any required survey plan(s) referenced in the Confirmatory Activity and Use Limitation bearing the plan book/plan number(s).

40.1090:   Public Involvement Requirements

(1)   Public Involvement Activities shall be conducted in accordance with 310 CMR 40.1400 through 40.1406.  Public Involvement Activities relevant to Response Action Outcome Opinions specifically include 310 CMR 40.1403(3)(f) and may include, but are not limited to, those activities set forth at 310 CMR 40.1403(7) and (8) and 310 CMR 40.1406.

(2)   If the disposal site for which a Response Action Outcome Opinion is rendered is a Public Involvement Plan Site, then a Public Involvement Plan that is consistent with 310 CMR 40.1405 shall be implemented.

40.1099:   Forms for Activity and Use Limitations

Form 1072A: Grant of Environmental Restriction

Form 1072B: Subordination Agreement

Form 1075: Notice of Activity and Use Limitation

Form 1082A: Amendment to Grant of Environmental Restriction

Form 1082B: Amendment to Notice of Activity and Use Limitation

Form 1083A: Partial Release of Grant of Environmental Restriction

Form 1083B: Partial Termination of Notice of Activity and Use Limitation

Form 1084A: Release of Grant of Environmental Restriction (pursuant to 310 CMR 40.1083(1)(a))

Form 1084B: Termination of Notice of Activity and Use Limitation (pursuant to 310 CMR 40.1083(1)(a))

Form 1084C: Termination of Notice of Activity and Use Limitation (pursuant to 310 CMR 40.1083(1)(b))

Form 1084D: Termination of Notice of Activity and Use Limitation (pursuant to 310 CMR 40.1083(1)(c))

Form 1084E: Release of Grant of Environmental Restriction (pursuant to 310 CMR 40.1083(1)(c))


The BWSC Forms for Activity and Use Limitations pdf format of    310 CMR 40.1099 Forms for Activity and Use Limitations  doc format of 310 CMR 40.1099 Forms for Activity and Use Limitations (listed above) are available in a single Microsoft Word file so that they can be prepared on your computer, as well as in Adobe Acrobat. Please be aware that the forms are part of the regulation and cannot be modified except where indicated.