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40.1301:   Purpose, Scope and Applicability

 

(1)   The regulations published at 310 CMR 40.1301 through 310 CMR 40.1399, collectively referred to as 310 CMR 40.1300, set forth procedures for the establishment of an administrative record pursuant to M.G.L. c. 21E, § 5A. 

 

(2)   The regulations published at 310 CMR 40.1300 shall apply when the Department elects to establish an administrative record pursuant to M.G.L. c. 21E, § 5A, for any Release Abatement Measure under 310 CMR 40.0440, Comprehensive Response Action under 310 CMR 40.0800 or any other response action.

 

(3)   310 CMR 40.1300 does not apply to response actions selected prior to April 25, 2014 or to Immediate Response Actions under 310 CMR 40.0410.

 

(4)   With respect to those response actions for which the Department does not elect to establish an administrative record in accordance with 310 CMR 40.1300, the administrative record shall consist of all items  developed, relied upon, and received pursuant to procedures used by the Department for the selection of the response action, including procedures for the participation of interested parties and the public.

 

(5)   310 CMR 40.1300 describes when the Department may establish an administrative record pursuant to M.G.L. c. 21E, § 5A; the standards for the content of  such an administrative record;  the procedures by which the public, RPs and PRPs may participate in the establishment of such an administrative record; and where the Department shall locate such an administrative record.

 

(6)   The Department's decision to establish or certify an administrative record in accordance with 310 CMR 40.1300,   and the Department's selection of a response action pursuant to M.G.L. c. 21E and 310 CMR 40.0000, shall not be an adjudicatory proceeding and shall not be subject to those provisions of M.G.L. c. 30A, or any other law, governing adjudicatory proceedings.

 

40.1302:   When the Department May Establish an Administrative Record

 

      The Department may establish an administrative record in accordance with M.G.L. c. 21E, § 5A, and 310 CMR 40.1300, upon which the Department shall base its selection of a response action, with respect to any site at which:

 

(1)   the Department itself, or acting through its agents or contractors, carries out a response action; or

 

(2)   the Department issues an order pursuant to M.G.L. c. 21E, § 10(b).

 

40.1303:   Participation by the Public, RPs and PRPs

 

(1)   After the Department decides to establish an administrative record pursuant to 310 CMR 40.1300, and prior to the selection of a response action, the Department shall give notice and afford interested persons a reasonable opportunity to comment.  Unless response actions must be taken earlier to control the potential for health damage, human exposure, safety hazards or environmental harm through appropriate short term measures, the Department shall give notice at least 21 days prior to its selection of a response action as follows:

(a)   by publication thereof in a newspaper(s) of general circulation in the community(ies) that the Department reasonably believes are affected by the disposal site;

(b)   by certified mail, return receipt requested, to any person who the Department reasonably believes:

1.   is an RP or a PRP; or

2.   holds title to, or an ownership interest in, any real property which comprises the disposal site or which may be affected by the response action and whose name and address is known by the Department at the time the Department elects to establish such an administrative record;

(c)   if the disposal site is a Public Involvement Plan (PIP) Site, by first-class mail or hand-delivery to each person whose name and address appears on the PIP mailing list established in accordance with 310 CMR 40.1400; and

(d)   by first-class mail or hand delivery to the Chief Municipal Official and local board of health of each community in which the disposal site is known to be located.

 

(2)   Content of Notice.  The notice required by 310 CMR 40.1303(1) shall include the following information:

(a)   a description of the location of the disposal site and activities proposed for such site;

(b)   the Department's authority to establish an administrative record for the disposal site upon which the Department will base its selection of a response action;

(c)   the times when, and location where, interested persons may inspect the administrative record, including, without limitation, remedial action alternatives under consideration;

(d)   a description of the procedure by which persons interested in commenting may submit data, views and arguments to the Department;

(e)   the deadline established by the Department for receipt of public comments; and

(f)   any additional  information determined by the Department to be pertinent.

 

(3)   Procedure.

(a)   Within 21 days, or within such other time period determined by the Department in accordance with 310 CMR 40.1303(1), after providing notice as required by 310 CMR 40.1303(1)(c), (d), and (e), any interested person may submit written comments in the form of a signed letter, brief or other memorandum stating his or her views or arguments, including data in support thereof, concerning the remedial action alternatives proposed for the disposal site.   Such written comments shall be submitted to the Department by first-class mail or hand-delivery during normal business hours.  If the Department has expedited response actions in accordance with 310 CMR 40.1303(1) to control the potential for health damage, human exposure, safety hazards or environmental harm through appropriate short term measures, the Department may request written comments to be submitted after providing notice as required by 310 CMR 40.1303(1)(c) through (e).  If such response actions have not been taken, the Department may request written comments to be submitted to the Department within 21 days of the later date of publication or notice required by 310 CMR 40.1303(1).

(b)   The Department may, at its sole discretion, afford any interested person or his or her duly appointed representative an opportunity to present data, views or arguments orally before the Department during a meeting at which the remedial action alternatives will be presented.

(c)   The Department shall consider and respond as it deems appropriate to significant public comments.  The Department shall place a written response to any significant comments submitted in the administrative record.

(d)   Upon reasonable request or on its own initiative, the Department may extend the period for  submission of public comments.

(e)   After the comment period, and any extension thereof, has terminated, the Department shall  place written documentation in the administrative record of the basis for the Department's selection of a response action and provide written notice thereof to all persons  who have submitted significant comments pursuant to 310 CMR 40.1303(1)(c) and any other persons submitting comments during the period established for public comment.

 

(4)   The Department shall certify that the administrative record is complete:

(a)   after the termination of the public comment period;

(b)   after the Department's response to significant comments has been placed in the administrative record; and

(c)  after the Department has issued a report documenting the basis for the Department's selection of a response action for the disposal site.

 

40.1304:   Administrative Record Requirements After Certification

 

(1)   The Department may reopen the administrative record after the administrative record has been certified complete  in accordance with 310 CMR 40.1303(4) if:

(a)   the Department intends to carry out or arrange a response action in addition to those response actions selected at the time the Department certified the administrative record complete; or

(b)   the Department carries out or arranges a response action significantly different from the response action selected in the report required by 310 CMR 40.1303(3)(e).

 

(2)   If the Department reopens the administrative record pursuant to 310 CMR 40.1304(1), the Department shall give notice thereof and afford interested persons an opportunity to present data, views or arguments, in accordance with 310 CMR 40.1303(1) through (4).

 

40.1305:   Content of the Administrative Record

 

(1)   The administrative record shall include those documents that form the basis for the Department's selection of a response action.

 

(2)   The administrative record shall contain the following types of documents when such documents are material to the Department's selection of a response action:

(a)   documents containing factual information and data, including documents containing analyses of such information and data;

(b)   guidance documents, technical literature, and site-specific policy memoranda;

(c)   documents received, published or made available to the public pursuant to 310 CMR 40.1400;

(d)   documents setting forth and/or supporting determinations by the Department, including scopes of work, plans and reports; and

(e)   copies of enforcement orders, including, but not limited to, consent orders, and Notices of Noncompliance, Notices of Responsibility and Notices of Response Action.

 

(3)   If the Department issues an administrative order pursuant to M.G.L. c. 21E, § 10(b)(1)(B), with respect to a disposal site for which the Department has elected to establish an administrative record in accordance with 310 CMR 40.1300, the Department shall include in the administrative record evidence of the following:

(a)   that the disposal site has been listed in accordance with M.G.L. c. 21E, § 3A(b), and 310 CMR 40.0168;

(b)   that the Department has given the person in question the opportunity to apply voluntarily for a permit or to carry out response actions at the disposal site; and

(c)   that the Department has determined that it would be contrary to the public interest to defer necessary response actions, or to publicly fund response actions to avoid any such deferral, with respect to the disposal site.

 

(4)   Documents not included in the administrative record.  The Department is not required to include in the administrative record documents which do not form the basis for the selection of the response action.

 

(5)   Information protected from disclosure.

(a)   Any document, information or other thing which the Department determines to be a trade secret in accordance with 310 CMR 3.00:  Access to and Confidentiality of Department Records and Files shall be maintained in the Confidential File of the administrative record and shall not be made available for public inspection, except as provided by 310 CMR 3.21:  When Trade Secrets May Be Disclosed By the Department.

(b)   Any document protected from disclosure under the Massachusetts Public Records Law, M.G.L. c. 66, § 10, or other applicable federal or state law may be maintained in the Confidential File of the administrative record and shall not be made available for public inspection, except as provided by 310 CMR 40.1305(6).

(c)   Any document, or part thereof, containing privileged information, including documents subject to the attorney-client privilege, attorney work product and any other document to which a privilege attaches under applicable law, may be maintained in the Confidential File of the administrative record and shall not be made available for public inspection, except as provided by 310 CMR 40.1305(6).

 

(6)   Confidential File.  Except as provided by 310 CMR 40.1305(5)(a), if any document, or part thereof, that forms the basis for the selection of a response action is protected from disclosure pursuant to 310 CMR 40.1305(5), such document, to the extent  practicable, shall be summarized in such a way as to render the document, or the material information included therein, available to the public.  The summary document shall be placed in the publicly available portion of the administrative record.  If the Department determines that it is not  practicable to summarize the information protected from disclosure, and any other information in such a document forms the basis or a portion of the basis for the Department's selection of a response action, the information protected from disclosure shall be deleted therefrom, and the remaining portions of the document shall be included in the publicly available portion of the administrative record.  Those parts of the document  determined by the Department to be impracticable to summarize shall be placed in the Confidential File of the administrative record.  Information in the Confidential File shall not be disclosed to any RP, PRP or the public, unless the Department expressly waives an applicable privilege or disclosure is otherwise authorized or required by applicable law or court order.

 

(7)   General Index.  The administrative record shall contain an index describing the various files included within the administrative record, including, but not limited to, the Confidential File.  The Department shall list separately each file included in the administrative record and shall include in such list a description of the documents within each file.  Such files may include, without limitation, an Environmental Analyses File containing copies of the results of environmental sampling and analyses; a Correspondence File containing copies of pertinent letters and other correspondence; a Public Involvement File documenting Public Involvement Activities undertaken with respect to the disposal site; a Response Action File containing scopes of work, plans and reports regarding response actions at the disposal site; and a Contractor File containing copies of pertinent contracts, invoices and payments.

 

40.1306:   Location of the Administrative Record

 

(1)   Except as provided by 310 CMR 40.1306(2) and (3), the Department shall make the administrative record, and the index for the administrative record, reasonably available to RPs, PRPs and the public at the Department regional office that serves the area where the disposal site is located.  The Department may keep additional copies of the administrative record and the index for the administrative record at other locations.

 

(2)   The Department shall not be required to keep the following documents in the office of the Department to which the site is assigned, provided that the index to the administrative record indicates the locations where such documents are kept:

(a)   sampling and testing data, quality control and quality assurance documentation and chain of custody forms;

(b)   guidance and policy documents not generated specifically for the disposal site at issue;

(c)   publicly available technical literature not generated for the disposal site at issue, such as engineering textbooks, articles from technical journals and toxicological profiles; and

(d)   documents included in the Confidential File of the administrative record.

 

(3)    If any document, or part thereof, listed in the index to the administrative record is not kept in the Department office  described in 310 CMR 40.1306(1), the Department shall make such documents, or photocopies thereof, excluding  documents from the Confidential File, reasonably available for public review at the location described in 310 CMR 40.1305(1), upon request.

 

(4)   The Department may make any document included in the administrative record available in microform, microfilm or any other suitable form.