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40.1000:   Permanent and Temporary Solutions

 

      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 Permanent or Temporary Solution;

(b)   implementing Activity and Use Limitations;

(c)   identifying any conditions that apply to maintaining the Permanent or Temporary Solution; and

(d)   documenting and supporting the Permanent or Temporary Solution in a Permanent Solution Statement or Temporary Solution 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, except as specifically provided in 310 CMR 40.0110 for a site or disposal site that is adequately regulated.

 

40.1003:   General Provisions for Permanent and Temporary Solutions

 

(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 Permanent Solution has been achieved in accordance with 310 CMR 40.1000.

 

(2)   RPs, PRPs and Other Persons conducting response actions at any site for which notification of a release or threat of release of oil and/or hazardous material is required pursuant to 310 CMR 40.0300 shall achieve a Permanent or Temporary Solution and submit a Permanent or Temporary Solution 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.  In such cases where a Temporary Solution is achieved, a Permanent Solution must eventually be achieved when such Permanent Solution becomes feasible.

 

(3)   A Permanent or Temporary Solution may be achieved, and a Permanent or Temporary Solution 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 Permanent or Temporary Solution applies shall be clearly and accurately identified in the  Permanent or Temporary Solution Statement.  The boundaries of a disposal site or portion of a disposal site for which a Permanent or Temporary Solution applies shall be clearly and accurately delineated and provided in documentation submitted with the Permanent or Temporary Solution Statement.

 

(5)   Source Elimination or Control.  A Permanent or Temporary Solution shall not be achieved unless and until response actions are taken to adequately identify and address Sources of OHM Contamination at the disposal site.  Such response actions shall ensure:

(a)   for a Permanent or Temporary Solution, all unpermitted releases of OHM to the environment are eliminated;

(b)   for a Permanent Solution, all Sources of OHM Contamination are eliminated, or if they are not eliminated, they are eliminated to the extent feasible and they are controlled; 

(c)   for a Temporary Solution, all Sources of OHM Contamination are eliminated or controlled, to the extent feasible.

 

(6)   Migration Control.  A Permanent or Temporary Solution shall not be achieved unless and until response actions are taken to adequately assess and control the subsurface migration of OHM remaining at a disposal site. Such response actions shall ensure:

(a)   for a Permanent Solution, plumes of dissolved OHM in groundwater and vapor-phase OHM in the Vadose Zone are stable or contracting; 

(b)   for a Temporary Solution, plumes of dissolved OHM in groundwater and vapor-phase OHM in the Vadose Zone are stable or contracting or otherwise controlled or mitigated to the extent feasible.

 

(7)   NAPL.  A Permanent or Temporary Solution shall not be achieved at a disposal site where NAPL is or was visibly present at levels requiring notification under the provisions of 310 CMR 40.0300 unless and until response actions are taken to adequately assess the nature, extent, and mobility of the NAPL, and, where necessary, remedial actions are taken to adequately contain or remove such NAPL.  Such response actions shall ensure:

(a)   for a Permanent Solution:

1.   Non-stable NAPL is not present under current site conditions and for the foreseeable future; and

2.   all NAPL with Micro-scale Mobility is removed if and to the extent feasible based upon consideration of CSM principles;

(b)   for a Temporary Solution, all Non-Stable NAPL and NAPL with Micro-scale Mobility is removed and/or controlled if and to the extent feasible.

 

(8)   The evaluation of feasibility referenced in 310 CMR 40.1003(5) through (7) shall be conducted using the criteria described in 310 CMR 40.0860.

 

40.1004:   Performance Standards for Permanent and Temporary Solutions

 

(1)   A Permanent or Temporary Solution 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 Permanent or Temporary Solution 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  Permanent Solution

 

(1)   A Permanent Solution 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 Permanent Solution is based will remain in effect. 

(a)   For Permanent Solutions with No Conditions, "any foreseeable period of time" shall be an unlimited period of time;

(b)   For Permanent Solutions with Conditions, "any foreseeable period of time" shall be the shortest period of time, as applicable, that:

1.   Activity and Use Limitations, where required to maintain a Permanent Solution, remain in effect;

2.   Exposure Pathway Mitigation Measures, where required to maintain a Permanent Solution, remain in effect; or

3.   other conditions on which the Permanent Solution with Conditions is based for which an Activity and Use Limitation is not required, as specified at 310 CMR 40.1013, remain in effect.

 

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) and 40.1013, Activity and Use Limitations shall be required:

(a)   at all disposal sites or portions of disposal sites for which a Permanent Solution and the risk characterization pursuant to 310 CMR 40.0900 used to support the Permanent Solution 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 Permanent Solution 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(6) or determined at 310 CMR 40.0996(7).

(b)   at all disposal sites for which a Permanent Solution relies upon an Exposure Pathway Mitigation Measure 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, including:

1.   one or more Passive Exposure Pathway Mitigation Measures; or

2.   one or more Active Exposure Pathway Mitigation Measures implemented pursuant to the requirements at 310 CMR 40.1025;

(c)   at all disposal 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); and

(d)   at disposal sites for which a Permanent Solution is achieved and NAPL with Micro-scale Mobility is present.

 

(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 disposal site or portion of a disposal site for which all applicable requirements of a Permanent Solution have been met based upon one or more of the limitations, assumptions or conditions specified at 310 CMR 40.1013;

(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 Temporary Solution have been met pursuant to 310 CMR 40.1050;

(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 shall:

(a)   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 pursuant to the requirements of 310 CMR 40.1080, to perform additional response actions prior to any such change in Site Activities and Uses, as required by 310 CMR 40.0000, and to notify the Department of any reportable condition created by a change in Site Activity and Use.

 

(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 40.1099.

 

40.1013:   Limitations, Assumptions and Conditions on Site Activities and Uses That Do Not Require an AUL

 

(1)   An Activity and Use Limitation may be used but shall not be required if the Permanent Solution is based solely upon one or more of the following limitations, assumptions or conditions on Site Activities and Uses:

(a)   the recommendation of Best Management Practices for non-commercial gardening in a residential setting to minimize and control potential risk qualitatively evaluated pursuant to 310 CMR 40.0923(3)(c);

(b)   the concentrations of OHM at the disposal site are consistent with Anthropogenic Background levels;

(c)    the location of residual contamination within a public way or within a rail right-of-way; or

(d)   the absence of an occupied building or structure in an area in which the groundwater would otherwise be classified as GW-2 pursuant to 310 CMR 40.0932(6), and where the residual concentrations of OHM in the groundwater exceed the GW-2 standards published in 310 CMR 40.0974(2).

 

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 Background is defined in 310 CMR 40.0006.

 

(2)   No further response actions are required at any disposal site 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 levels shall be evaluated using the criteria described in 310 CMR 40.0860, except where it can be demonstrated that Background levels have been met.

 

40.1025:   Requirements for Active Exposure Pathway Mitigation Measures Implemented as a Permanent

                 Solution with Conditions

 

(1)   Purpose and Scope.  310 CMR 40.1025 specifies requirements for an Active Exposure Pathway Mitigation Measure Implemented as part of a Permanent Solution with Conditions.

 

(2)   Demonstration of Effectiveness.  An Active Exposure Pathway Mitigation Measure implemented as part of a Permanent Solution with Conditions shall be designed and demonstrated to eliminate exposure to OHM to the extent feasible and ensure, at a minimum, that a condition of No Significant Risk is achieved and maintained for the Receptor(s) of concern.  Demonstration of the effectiveness of Active Exposure Pathway Mitigation Measure shall be made prior to the achievement of a Permanent Solution with Conditions and shall be based on the measurement of Exposure Point Concentrations representative of exposures for the Receptor(s) of concern during operation of the Active Exposure Pathway Mitigation Measure under normal operating conditions and over a period of time sufficient to account for temporal variability. 

 

(3)   Operation of an Active Exposure Pathway Mitigation Measure Implemented as part of a Permanent Solution with Conditions. 

(a)   The necessity of operating and maintaining the Active Exposure Pathway Mitigation Measure according to the operating regimen documented in the Permanent Solution Statement shall be specified in an Activity and Use Limitation that is recorded on the deed of the property where the Active Exposure Pathway Mitigation Measure is located that includes the requirements of 310 CMR 40.1025 as terms and conditions for maintaining a Permanent Solution;

(b)   The operating regimen for the Active Exposure Pathway Mitigation Measure documented in the Permanent Solution Statement shall be designed to ensure a level of No Significant Risk is maintained for the Receptor(s) of concern under normal operating conditions;

(c)   The operating regimen shall document the parameters for operating the Active Exposure Pathway Mitigation Measure and the methods and frequency for monitoring such Measure to ensure that it is operating consistently within such parameters;

(d)   An Active Exposure Pathway Mitigation Measure implemented as part of a Permanent Solution with Conditions shall employ remote monitoring technology that will alert the owner and operator of the building protected by the Active Exposure Pathway Mitigation Measure and the Department immediately upon failure of the system, such as loss of power, mechanical failure or other significant disruption of the effectiveness of the system;

(e)   The operating regimen shall document the longest duration of a shutdown that would be consistent with:

1.   a level of exposure that does not pose an Imminent Hazard; and

2.   a level of exposure that poses No Significant Risk; and

(f)   Following submittal of a Permanent Solution Statement, the Active Exposure Pathway Mitigation Measure shall be consistently operated and maintained at a level of effectiveness that ensures a level of No Significant Risk is maintained for the Receptor(s) of concern and in accordance with the provisions of 310 CMR 40.1025.

 

(4)   An Active Exposure Pathway Mitigation Measure shall not be used to support a Permanent Solution with Conditions if suspension or failure of such measure lasting 60 consecutive days would result in a Receptor exposure to OHM that would pose an Imminent Hazard.

 

(5)   An Active Exposure Pathway Mitigation Measure shall not be used to support a Permanent Solution with Conditions unless the owner of the property where the Active Exposure Pathway Mitigation Measure is located certifies at the time that the Permanent Solution with Conditions is implemented that financial resources have been made available for the immediate repair and/or replacement of components of the Active Exposure Pathway Mitigation Measure in the event that the Measure experiences failure. 

 

(6)   In the event of any suspension or failure of an Active Exposure Pathway Mitigation Measure implemented as part of a Permanent Solution with Conditions, the owner of the property where the Active Exposure Pathway Mitigation Measure is located shall undertake immediate steps to return the Active Exposure Pathway Mitigation Measure to full operating condition.  If such suspension or failure of the system lasts 30 consecutive days, the owner of the property where such Measure is located shall notify both the Department and any non-transient occupants of the building protected by such Measure who may have experienced exposure to oil and/or hazardous material as the result of the system suspension or failure on the 30th day from the start of the suspension or failure period.  This notice shall document the reason for the suspension or failure of the Active Exposure Pathway Mitigation Measure, any efforts made or steps to be taken to resume operation of such Measure, and the expected timeframe for resuming operation of such Measure.

 

(7)   The owner of the property where an Active Exposure Pathway Mitigation Measure is implemented as part of a Permanent Solution with Conditions shall annually certify in response to receipt of a form provided by the Department that:

(a)   the property owner is aware of his or her obligation to operate and maintain the Active Exposure Pathway Mitigation Measure, including repairing or replacing components of the Measure to resume operation in the event the Measure experiences suspension or failure;

(b)   the property owner is aware that the Department may upon reasonable notice inspect the Active Exposure Pathway Mitigation Measure to ensure that it is operating pursuant to the regimen established at 310 CMR 40.1025;

(c)   financial resources are available to the property owner for the immediate repair and/or replacement of components of the Active Exposure Pathway Mitigation Measure in the event that the Measure experiences failure; and

(d)   the Active Exposure Pathway Mitigation Measure is operating pursuant to the regimen established at 310 CMR 40.1025. 

 

(8)   Where a Permanent Solution with Conditions is based upon the operation of an Active Exposure Pathway Mitigation Measure, the operation of such a measure may be terminated following documentation provided in a revised Permanent Solution Statement pursuant to 310 CMR 40.1000 that the measure is no longer necessary to maintain a Permanent Solution. Such documentation shall include a Risk Characterization conducted pursuant to 310 CMR 40.0900 that evaluates and documents exposure to OHM for Receptor(s) of concern in the absence of the Active Exposure Pathway Mitigation Measure over a period of time sufficient to account for temporal variability and supports a conclusion that a condition of No Significant Risk exists in the absence of such Measure.

 

40.1026:   Requirements for Active Exposure Pathway Mitigation Measures Implemented as Part of a Temporary Solution or Remedy Operation Status

 

(1)   Purpose and Scope.  310 CMR 40.1026 specifies requirements for an Active Exposure Pathway Mitigation Measure implemented as part of a Temporary Solution or Remedy Operation Status.

 

(2)   Demonstration of Effectiveness.  An Active Exposure Pathway Mitigation Measure implemented as part of a Temporary Solution or Remedy Operation Status shall be designed and demonstrated to eliminate exposure to OHM to the extent feasible and ensure, at a minimum, that a condition of No Significant Risk is achieved and maintained for the Receptor(s) of concern.  Demonstration of the effectiveness of Active Exposure Pathway Mitigation Measure shall be based on the measurement of Exposure Point Concentrations representative of exposures for the Receptor(s) of concern during operation of the Active Exposure Pathway Mitigation Measure under normal operating conditions and over a period of time sufficient to account for temporal variability. 

 

(3)   Operation of an Active Exposure Pathway Mitigation Measure implemented as part of a Temporary Solution or Remedy Operation Status. 

(a)   The operating regimen for the Active Exposure Pathway Mitigation Measure implemented as part of a Temporary Solution or Remedy Operation Status shall be specified in Temporary Solution Statement or Phase IV Operation, Maintenance and Monitoring Plan developed as part of the Remedy Implementation Plan, respectively;

(b)   The operating regimen for the Active Exposure Pathway Mitigation Measure shall be designed to ensure a level of No Significant Risk is maintained for the Receptor(s) of concern under normal operating conditions;

(c)   The operating regimen shall document the parameters for operating the Active Exposure Pathway Mitigation Measure and the methods and frequency for monitoring such Measure to ensure that it is operating consistently within such parameters;

(d)   An Active Exposure Pathway Mitigation Measure implemented as part of a Temporary Solution or Remedy Operation Status shall employ remote monitoring technology that will alert the owner and operator of the building protected by the Active Exposure Pathway Mitigation Measure and the Department immediately upon failure of the system, such as loss of power, mechanical failure or other significant disruption of the effectiveness of the system;

(e)   The operating regimen shall document the longest duration of a shutdown that would be consistent with:

1.   a level of exposure that does not pose an Imminent Hazard; and

2.   a level of exposure that poses No Significant Risk; and

(f)   Following submittal of a Temporary Solution Statement or Remedy Operation Status, the Active Exposure Pathway Mitigation Measure shall be consistently operated and maintained at a level of effectiveness that ensures a level of No Significant Risk is maintained for the Receptors of concern and in accordance with the provisions of 310 CMR 40.1026.

 

(4)   In the event of any suspension or failure of an Active Exposure Pathway Mitigation Measure implemented as part of a Temporary Solution or Remedy Operation Status, the owner of the property where the Active Exposure Pathway Mitigation Measure is located shall undertake immediate steps to return the Active Exposure Pathway Mitigation Measure to full operating condition.  If such suspension or failure of the system lasts 30 consecutive days, the owner of the property where such Measure is located shall notify both the Department and any non-transient occupants of the building protected by such Measure who may have experienced exposure to oil and/or hazardous material as the result of the system suspension or failure on the 30th day from the start of the suspension or failure period.  This notice shall document the reason for the suspension or failure of the Active Exposure Pathway Mitigation Measure, any efforts made or steps to be taken to resume operation of such Measure, and the expected timeframe for resuming operation of such Measure.

 

40.1030:   Categories of Permanent and Temporary Solutions

 

(1)   Permanent or Temporary Solutions are categorized under 310 CMR 40.1030 through 40.1051 as Permanent Solutions with No Conditions, Permanent Solutions with Conditions and Temporary Solutions.

 

(2)   The specific category of Permanent or Temporary Solution applicable to a site, disposal site or portion of a 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 the risk characterization depends upon assumed limitations on current or future conditions, activities or uses, including the implementation of Active or Passive Exposure Pathway Mitigation Measures;

(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(6); and

(f)   whether site conditions are consistent with Natural Background or Anthropogenic Background.

 

40.1040:   Permanent Solutions

 

(1)   Permanent Solutions shall apply where:

(a)   a level of No Significant Risk, as specified in 310 CMR 40.0900, exists or has been achieved;

(b)   all Sources of OHM Contamination have been eliminated or controlled, as specified in 310 CMR 40.1003(5)(a) and (b);

(c)   control of plumes of dissolved OHM in groundwater and vapor-phase OHM in the Vadose Zone  has been achieved as specified in 310 CMR 40.1003(6)(a);

(d)   NAPL, if present, has been addressed as specified in 310 CMR 40.1003(6)(a);

(e)   all threats of release have been eliminated; and

(f)   the level of oil and/or hazardous material concentrations in the environment have been reduced to as close to Background levels as feasible as specified at 310 CMR 40.1020.

 

(2)   Permanent Solutions shall not apply to:

(a)   except as provided at 310 CMR 40.1025, any disposal site or portion of a disposal site where Active Operation and Maintenance of a remedial action is required; or

(b)   any disposal site or portion of a disposal site where 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(6); or

(c)   any disposal site or portion of a disposal site where 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.

 

(3)   Permanent Solutions may be achieved at any point in the response action process where the requirements of a Permanent Solution have been achieved and documented.

 

40.1041:   Categories of Permanent Solutions

 

      There are two categories of Permanent Solution:  Permanent Solution with No Conditions and Permanent Solution with Conditions.

 

(1)   Permanent Solution with No Conditions shall apply to:

(a)   disposal sites or portions of a disposal site where the requirements of 310 CMR 40.1040(1) have been achieved;

(b)   disposal sites or portions of a disposal site where oil and/or hazardous material concentrations do not exceed an applicable Upper Concentration Limit in Soil or Groundwater listed at 310 CMR 40.0996(6), unless such levels are consistent with Natural Background;

(c)   disposal sites or portions of a disposal site where a level of No Significant Risk exists and will be maintained for all current and foreseeable future use of the site without relying upon:

1.   assumed limitations on current or future site activities, uses or conditions, that require an Activity and Use Limitation, as specified in 310 CMR 40.1012(2); or

2.   assumed limitations on current or future site activities, uses or conditions, that do not require an Activity and Use Limitations pursuant to 310 CMR 40.1013; and

(d)   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)   Permanent Solution with Conditions shall apply to disposal sites or portions of a disposal site where:

(a)   the requirements of 310 CMR 40.1040(1) have been achieved;

(b)   oil or hazardous material concentrations do not exceed an applicable Upper Concentration Limit in soil or groundwater listed at 310 CMR 40.0996(6), unless such levels are consistent with Anthropogenic Background or  oil and/or hazardous material in soil is located at a depth greater than 15 feet from the ground surface or beneath an Engineered Barrier and an evaluation conducted pursuant to 310 CMR 40.0860 indicates that it is not feasible to reduce the concentrations of oil and/or 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; and

(c)   a level of No Significant Risk exists and will be maintained for all current and foreseeable future use of the site, relying on one or more of the following:

1.   assumed limitations on future site activities or uses that require Activity and Use Limitations, as specified in 310 CMR 40.1012; or

2.   assumed limitations on current or future site activities, uses or conditions that do not require an Activity and Use Limitations pursuant to 310 CMR 40.1013.

 

40.1050:   Temporary Solutions

 

(1)   Temporary Solutions shall apply to disposal sites or portions of a disposal site where:

(a)   a condition of No Substantial Hazard exists and has been documented pursuant to 310 CMR 40.0956;

(b)   all Sources of OHM Contamination have been identified, characterized, and to the extent feasible, eliminated or controlled as specified in 310 CMR 40.1003(5)(a) and (c); 

(c)   control of plumes of dissolved OHM in groundwater and vapor-phase OHM in the Vadose Zone has been achieved to the extent feasible as specified in 310 CMR 40.1003(6)(b);

(d)   NAPL, if present, has been addressed as specified in 310 CMR 40.1003(7)(b); and

(e)   it is concluded, after completion of a Phase III evaluation pursuant to 310 CMR 40.0850, that:

1.   response actions to achieve a Permanent Solution are not currently feasible; or

2.   response actions to achieve a Permanent Solution are feasible and shall be continued toward a Permanent Solution.

 

(2)   Temporary Solutions may be achieved regardless of whether one or more remedial actions have been taken at a disposal site, but only after:

(a)   a Phase II Comprehensive Site Assessment and a Phase III Identification, Evaluation and Selection of Comprehensive Remedial Alternatives, as specified in 310 CMR 40.0830 and 310 CMR 40.0850, respectively, have been completed; or

(b)   a Downgradient Property Status Submittal has been provided to the Department in accordance with 310 CMR 40.0180.

 

(3)   A Temporary Solution 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 Alternative pursuant to 310 CMR 40.0870; or

(c)   after implementation of Phase V or Post-temporary Solution operation, maintenance and/or monitoring pursuant to 310 CMR 40.0890 or 310 CMR 40.0897, respectively.

 

(4)   For all Temporary Solutions where achievement of a Permanent Solution is not currently feasible as described at 310 CMR 40.1050(1)(e)1., 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 Temporary Solution Statement; and

(b)   a Periodic Review of the Temporary Solution shall be conducted every fifth year after the date of filing the Temporary Solution Statement, until such time that a Permanent Solution 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;

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, including compliance with the terms of the Activity and Use Limitation, its effectiveness in maintaining a condition of No Substantial Hazard, and identification of any response actions pursuant to 310 CMR 40.1067 necessary to maintain a condition of No Substantial Hazard;

6.   any necessary and required response actions to maintain the Temporary Solution, including a description of the type and frequency of monitoring to be conducting during the period prior to the next Periodic Review; and

7.   the certification required in 310 CMR 40.0009.

 

(5)   For all Temporary Solutions where achievement of a Permanent Solution is feasible and response actions toward a Permanent Solution are continuing as described in 310 CMR 40.1050(1)(e)2.:

(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 Temporary Solution Statement; and

(b)   a valid Tier Classification shall be in effect at the time the Temporary Solution Statement is submitted to the Department and further response actions shall be conducted in accordance with 310 CMR40.0800.

 

40.1055:   Transition Provisions

 

(1)   As of June 20, 2014, all Class A-1, A-2 and B-1 Response Action Outcomes submitted to the Department prior to June 20, 2014 shall be Permanent Solutions with No Conditions.

 

(2)   As of June 20, 2014, all Class A-3, A-4, B-2 and B-3 Response Action Outcomes submitted to the Department prior to June 20, 2014 shall be Permanent Solutions with Conditions.

 

(3)   As of June 20, 2014, all Class C-1 Response Action Outcomes submitted to the Department prior to June 20, 2014 shall be Temporary Solutions as described in 310 CMR 40.1050(1)(e)1.

 

(4)   As of June 20, 2014, all Class C-2 Response Action Outcomes submitted to the Department prior to June 20, 2014 shall be Temporary Solution as described in 310 CMR 40.1050(1)(e)2.

 

40.1056:   Content of Permanent Solution Statements

 

(1)   A Permanent Solution 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)   whether it is a Permanent Solution with No Conditions or a Permanent Solution with Conditions;

(c)   except where the concentrations of oil and/or 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, safety, public welfare and the environment, pursuant to 310 CMR 40.0900;

(d)   the relationship of the Permanent Solution Statement to any other Permanent or Temporary Solution 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)   indication as to whether the Permanent Solution includes the implementation of an Activity and Use Limitation, and if so, the type of Activity and Use Limitation implemented at the disposal site;

(f)   indication as to whether the Permanent Solution is based upon assumptions about the current or future site activities, uses or conditions that do not require an Activity and Use Limitation pursuant to 310 CMR 40.1013 and a description of those assumptions;

(g)   indication as to whether the Permanent Solution is based upon the effective operation of one or more Active Exposure Pathway Mitigation Measures pursuant to 310 CMR 40.1025;

(h)   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 category of Permanent Solution specified in 310 CMR 40.1000 have been met;

(i)   a certification of the Permanent Solution Statement and all documents submitted with the Permanent Solution Statement as required by 310 CMR 40.0009;

(j)   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

(k)   indication as to whether the analytical data used to support the Permanent Solution 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 Permanent Solution 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, in the case of a threat of release, or the location and boundaries of the disposal site or portion of disposal site to which the Permanent Solution applies that includes the location of areas characterized as Background relative to the disposal site boundaries.  Such description shall reference, to the extent practicable, the location of the site, or location and boundaries of the disposal site or portion thereof relative to permanent or semi-permanent landmarks, location coordinates, and/or surveyed boundaries;

(b)   a succinct summary of the Conceptual Site Model;

(c)   a demonstration that all Sources of OHM Contamination have been eliminated or controlled as specified in 310 CMR 40.1003(5)(a) and (b);

(d)   a demonstration that response actions have been taken to adequately assess and, if necessary, control the subsurface migration of OHM remaining at the disposal site as specified in 310 CMR 40.1003(6)(a);

(e)   where NAPL is or has been present, a demonstration that response actions have been taken to adequately assess and if necessary control NAPL mobility and meet the requirements of 310 CMR 40.1003(7)(a);

(f)   information supporting the conclusion that a level of No Significant Risk has been achieved or exists;

(g)   information documenting the extent to which levels of oil and/or hazardous material in the environment have been reduced to Background, and/or the results of the feasibility evaluation conducted pursuant to 310 CMR 40.0860 demonstrating that the achievement of Background is not feasible;

(h)   a copy of any and all Activity and Use Limitations which have been implemented under 310 CMR 40.1070;

(i)   for Permanent Solutions with Conditions where concentrations in Soil exceed Upper Concentration Limits in Soil at a depth greater than 15 feet from the ground surface or in an area beneath an engineered barrier, 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 15 feet from the ground surface or in the area beneath an engineered barrier is not feasible;

(j)   for a Permanent Solution with Conditions based upon assumptions about the current or future site activities, uses or conditions that do not require an Activity and Use Limitation pursuant to 310 CMR 40.1013, documentation related to such assumptions and conditions, including, as applicable:

1.   the recommendation and description of Best Management Practices for Non- commercial Gardening in a residential setting to minimize and control potential risk qualitatively evaluated pursuant to 310 CMR 40.0923(3)(c);

2.   the location of OHM that are consistent with Anthropogenic Background levels;

3.   the location of residual contamination within a public way or within a rail right-of- way; or

4.   where the residual concentrations of OHM in the groundwater exceed the GW-2 standards published in 310 CMR 40.0974(2) at a disposal site or portion thereof where no occupied building or structure is present, information related to the presence of groundwater contamination and the obligation to ensure any future construction at the disposal site does not result in OHM impacts to indoor air in newly constructed buildings or structures;

(k)   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 Permanent Solution, and a Data Representativeness Evaluation, documenting the adequacy of the spatial and temporal data sets to support the Permanent Solution; and

(l)    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 Permanent Solution is based.

 

(3)   The Permanent Solution shall not be considered complete until all applicable fees are paid in accordance with 310 CMR 4.00:  Timely Action Schedule and Fee Provisions.

 

40.1057:   Content of Temporary Solution Statements

 

(1)   A Temporary Solution 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 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;

(c)   the relationship of the Temporary Solution Statement to any other Permanent or Temporary Solution 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;

(d)   indication as to whether achievement of a Permanent Solution is feasible at the disposal site or portion of the disposal site and whether response actions toward a Permanent Solution are continuing;

(e)   indication as to whether the Temporary Solution includes the implementation of an Activity and Use Limitation, and if so, the type of Activity and Use Limitation implemented at the disposal site;

(f)   indication as to whether the Temporary Solution includes the operation of one or more Active Exposure Pathway Mitigation Measures pursuant to 310 CMR 40.1026;

(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 Temporary Solution specified in 310 CMR 40.1000 have been met;

(h)   a certification of the Temporary Solution Statement and all documents submitted with the Temporary Solution 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 Temporary Solution 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 Temporary Solution 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 Temporary Solution applies that includes the location of areas characterized as Background relative to the disposal site boundaries. 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, location coordinates, and/or surveyed boundaries;

(b)   a succinct summary of the Conceptual Site Model;

(c)   a demonstration that all Sources of OHM Contamination have been eliminated or controlled, to the extent feasible as specified in 310 CMR 40.1003(5)(a) and (c);

(d)   a demonstration that response actions have been taken to adequately assess and control the subsurface migration of OHM remaining at the disposal site as specified in 310 CMR 40.1003(6)(b);

(e)   where NAPL is or has been present, a demonstration that response actions have been taken to adequately assess NAPL mobility and meet the requirements of 310 CMR 40.1003(7)(b);

(f)   a copy of the plan as specified in 310 CMR 40.0861(2)(h);

(g)   information supporting the conclusion that no substantial hazards remain at the disposal site;

(h)   a copy of any and all Activity and Use Limitations which have been implemented under 310 CMR 40.1070;

(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 Temporary Solution is based;

(j)   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)   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 Temporary Solution, and a Data Representativeness Evaluation, documenting the adequacy of the spatial and temporal data sets to support the Temporary Solution.

 

40.1066:   Effect of Permanent or Temporary Solutions on Fees

 

(1)   Upon receipt of a Permanent Solution Statement, the Department shall suspend the further assessment of Annual Compliance Assurance Fees; provided, however, that payment of such fees shall be required for the billable year in which the Permanent Solution is provided to the Department.

 

(2)   Upon receipt of a Temporary Solution 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 Temporary Solution Annual Compliance Assurance Fee pursuant to 310 CMR 4.03:  Annual Compliance Assurance Fee.

 

40.1067:   Remedial Actions After a Permanent or Temporary Solution Statement has been Submitted to the Department

 

(1)   310 CMR 40.1067 applies to remedial actions conducted at a disposal site after a Permanent or Temporary Solution 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 Permanent Solution with No Conditions the following requirements shall apply:

(a)   a Tier Classification or Extension thereof is not required;

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

(c)   all excavated Remediation Waste is managed in accordance with the provisions of 310 CMR 40.0030; and

(d)   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 Permanent Solution with Conditions 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, provided such remedial actions do not exceed the scope of a Release Abatement Measure as described in 310 CMR 40.0442. Such remedial actions shall not require a Tier 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  Action, as specified at 310 CMR 40.0870, provided:

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

2.   public involvement applicable to Phase IV Comprehensive Remedial  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 Permanent Solution 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 Permanent Solution Statement, whenever submitted, may be limited to the area in which the response actions were conducted.

 

(5)   For remedial actions conducted after a Permanent Solution with Conditions Statement has been submitted to the Department where an Activity and Use Limitation is not required pursuant to 310 CMR 40.1013, the following requirements shall apply:

(a)   Limited soil excavation may be undertaken without the need to notify the Department or conduct public involvement activities pursuant to 310 CMR 40.1400, provided:

1.   except as provided in 310 CMR 40.1067(5)(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

2.   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(5)(a) shall be conducted as Release Abatement Measures  and shall not require a Tier 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; and

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

(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  Action, as specified at 310 CMR 40.0870, provided:

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

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

(d)   A revised Permanent Solution Statement shall be submitted upon completion of remedial actions where such remedial actions result in the elimination of one or more of the conditions associated with the Permanent Solution with Conditions specified in 310 CMR 40.1013.  A revised Permanent Solution Statement, whenever submitted, may be limited to the area in which the response actions were conducted;

(e)   Notwithstanding the provisions of 310 CMR 40.1067(5), where a Permanent Solution with Conditions Statement has been submitted based upon assumptions pursuant to 310 CMR 40.1013(1)(d), future construction of a building that results in exposure to OHM from the disposal site in indoor air in the new building shall be subject to notification requirements of 310 CMR 40.0300 and, if necessary, the performance of response actions to ensure that the requirements of a Permanent Solution are met for the change in conditions and exposure that resulted from the building construction. 

 

(6)   Remedial actions conducted after a Permanent Solution with Conditions 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  Action, as specified at 310 CMR 40.0870 and shall include public involvement applicable to Phase IV Comprehensive Remedial  Actions.  In such cases, the person conducting response actions shall have a valid Tier 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.

 

(7)   Remedial actions conducted after a Temporary Solution Statement has been submitted to the Department shall be conducted as a Phase IV Comprehensive Remedial  Action, as specified at 310 CMR 40.0870 or Release Abatement Measure as specified in 310 CMR 40.0440, provided:

(a)   such remedial actions are conducted under a valid Tier Classification or Extension thereof; and

(b)   public involvement applicable to Phase IV Comprehensive Remedial  Action or Release Abatement Measure is conducted.

 

(8)   The Department may specify in a Notice of Audit Findings that remedial actions are necessary at a disposal site after a Permanent Solution 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 or 310 CMR 40.0111(8):

(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.

 

(4)   Notice of Activity and Use Limitations implemented at disposal sites subject to CERCLA pursuant to 310 CMR 40.0111(8), shall be subject to the general requirements of 310 CMR 40.1074, except for the following:

(a)   the requirement to prepare a Notice of Activity and Use Limitation, Amendment of a Notice of Activity and Use Limitation, or Termination of a Notice of Activity and Use Limitation, on the specific forms set forth in 310 CMR 40.1099, and as required in 310 CMR 40.1074(1)(a), 40.1075, 40.1081(4)(a), and 40.1083(1)(e), and (3)(b);

(b)   the requirement of 310 CMR 40.1074(1)(b);

(c)   the requirement of 310 CMR 40.1074(2)(m) for a notarized signature of a Licensed Site Professional on a Notice of Activity and Use Limitation, Amendment of a Notice of Activity and Use Limitation, or Termination of a Notice of Activity and Use Limitation;

(d)   the requirements of 310 CMR 40.1080; and

(e)   the Public Involvement Activities set forth in 310 CMR 40.1400 through 40.1406, including those requirements specific to Activity and Use Limitations pursuant to 310 CMR 40.1403(7).

 

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 Permanent Solution; or

b.   achieve a condition of No Substantial Hazard for a Temporary Solution;

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 8½" 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 8½" 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 or her own behalf, but rather on behalf of an entity (LLC, LLP, limited partnership, etc.), or as trustee, executor, or attorney in fact, documentation consistent with conveyancing standards and practices verifying that the person(s) signing the Grant of Environmental Restriction has the authority to sign such document 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  Clerk's Certificate of Incumbency from the clerk of the corporation certifying that the person(s) signing the Grant of Environmental Restriction on behalf of the corporation held his or her position as of the date of the Grant of Environmental Restriction; and

2.   unless the corporate person(s) signing the Grant of Environmental Restriction holds the position of both president or vice president and treasurer or assistant treasurer, a Clerk's Certificate from the clerk or secretary of the corporation certifying a corporate vote, resolution, or by-law authorizing the person(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, § 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, § 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 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:  Timely Action Schedule and Fee Provisions and  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:  Timely Action Schedule and Fee Provisions 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 310 CMR 1.00:  Adjudicatory Proceedings, 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)   a Notice of Activity and Use Limitation shall include all of the information specified in 310 CMR 40.1074(2) and be fully documented using Form 1075 set forth in 310 CMR 40.1099;

(b)   the Activities and Uses, and obligations and conditions specified in a Notice of Activity and Use Limitation to maintain a level of No Significant Risk or No Substantial Hazard, shall be established in accordance with 310 CMR 40.0900 and 40.1012;

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

(d)   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;

(e)   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)(d);

 

(2)   Contents of a Notice of Activity and Use Limitation.  A Notice of Activity and Use Limitation shall be documented on Form 1075 or, in the case of CERCLA sites, on a form developed and approved by the Department, and 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 the parcel(s) of land which contain(s) the area that is 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/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 8½" 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 8½" 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 consistent with conveyancing standards and practices verifying that  the person(s) signing the Notice of Activity and Use Limitation has the authority to sign such document  shall be attached as an exhibit to the Notice of Activity and Use Limitation.  If the property owner is a corporation, such documentation shall consist of:

1.   a Clerk's Certificate of Incumbency from the clerk of the corporation certifying that the person(s) signing the Notice of Activity and Use Limitation on behalf of the corporation held his or her position as of the date of the Notice of Activity and Use Limitation; or

2.   unless the person(s) signing the Notice of Activity and Use Limitation holds the position of both president or vice president and treasurer or assistant treasurer, a Clerk's Certificate from the clerk or secretary of the corporation certifying a corporate vote, resolution, or by-law authorizing the person(s) to do so;

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

(e)   a statement that specifies why the Notice of Activity and Use Limitation is appropriate to  maintain a Permanent Solution and condition of No Significant Risk or  maintain a Temporary Solution and condition of No Substantial Hazard;

(f)   a concise summary of the oil and/or hazardous material release event(s) or site history (i.e., date of the release(s), to the extent known, release volumes(s), and response actions taken to address the release(s)) that resulted in the contaminated media subject to the Notice of Activity and Use Limitation;

(g)   a description of the contaminated media (i.e., media type(s), contaminant type(s), approximate vertical and horizontal extent) subject to the Notice of Activity and Use Limitation;

(h)   a description of the Site Activities and Uses that are consistent with maintaining a Permanent Solution and condition of No Significant Risk or maintaining a Temporary Solution and condition of No Substantial Hazard with respect to exposures to oil and/or hazardous material, including but not limited to emergency excavation and repair of existing subsurface utilities, specific provisions for non-emergency excavation, and specific types of land uses and activities; 

(i)   a description of the Site Activities and Uses that are inconsistent with maintaining a Permanent Solution and condition of No Significant Risk or maintaining a Temporary Solution and condition of No Substantial Hazard with respect to exposures to oil and/or hazardous material;

(j)   a description of the obligations and/or conditions that are necessary to meet the objectives of the Notice of Activity and Use Limitation, including, but not limited to the type and frequency of activities for the inspection and maintenance of, as applicable, barriers, Engineered Barriers, and  Exposure Pathway Mitigation Measures, and, pursuant to 310 CMR 40.1025, the type and frequency of activities for the inspection, operation, maintenance of an Active Exposure Pathway Mitigation Measure and the requirements for remote monitoring and notification;

(k)   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 Notice of Activity and Use Limitation;

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

(m)   the notarized signature(s) of the property owner(s), and the notarized signature and seal of the LSP of Record who certifies that in [his][her] Opinion the Notice of Activity and Use Limitation is consistent with a Permanent Solution or a Temporary Solution.

 

(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 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)   Incorporation into Instruments of Transfer.  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.  Within 30 days of recording or registering a deed conveying record title for a property which is subject in whole or in part to a Notice of Activity and Use Limitation, a copy of such deed containing said reference shall be submitted to the Department.  This obligation shall attach both to the grantor and the grantee on such deed, provided that submission of such copy to the Department by either the grantor or the grantee shall satisfy this obligation for both of them.

 

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, or, in the case of CERCLA sites, a form developed and approved by the Department.

 

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

 

(1)   Evaluation of Contemplated Site Activity and/or Use Changes.  Where a Permanent or Temporary Solution 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 Hazard, whichever is applicable 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 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 No Substantial Hazard, whichever is applicable, 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 or uses 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) before the new or altered Site Activities or Uses commence; and

(d)   a revised Permanent or Temporary Solution Statement, where applicable, shall be submitted to the Department to reflect any changes in conditions from the previous Permanent or Temporary Solution Statement within 60 days from completion of response actions.

 

(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 the 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 No 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 or 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 40.1074(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 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;

(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 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);

(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 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 (e), whichever is appropriate; and

3.   a revised Permanent or Temporary Solution  Statement and supporting documentation pursuant to 310 CMR 40.1056 reflecting any changes in the category of Permanent or Temporary Solution 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 or a condition of No Substantial Hazard has been achieved, the Activity and Use Limitation shall be released in accordance with 310 CMR 40.1083(1)(d) or (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:  Timely Action Schedule and Fee Provisions;

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:

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

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 or 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 40.1074(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:  Timely Action Schedule and Fee Provisions;

(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 8½" 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 No 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 No 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 or 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 40.1074(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 8½" 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 Permanent or Temporary Solution Statement and supporting documentation pursuant to 310 CMR 40.1056 reflecting any changes in the category of Permanent or Temporary Solution 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 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; and

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 40.1074(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); and

(e)   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 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 Permanent or Temporary Solution 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 40.1406.

 

(2)   If the disposal site for which a Permanent or Temporary Solution 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)(d))


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.