Current through Register 1531, September 27, 2024
(1) The Department
shall deem response actions at a disposal site subject to CERCLA adequately
regulated for purposes of compliance with
310
CMR 40.0000, provided:
(a) for sites at which a ROD has not been
issued,
1. the response actions are conducted
in compliance with the National Contingency Plan and any applicable EPA
approvals or orders; and
2.
subsequent site assessment, cleanup and/or closure activities are addressed
pursuant to CERCLA; or
(b) the Department concurs with the ROD
and/or other EPA decisions for remedial actions at such site in accordance with
40 CFR
300.515(e); or
(c) if the Department requests that EPA
change or expand the EPA-selected remedial action, EPA agrees to integrate the
Department's proposed changes or expansions into the planned CERCLA remedial
action in accordance with 40
CFR 300.515(f); or
(d) if the Department does not concur with
the ROD and/or other EPA decisions for remedial actions at such site, the
EPA-selected remedial action is thereafter modified so as to integrate the
Department's proposed changes or expansions into the planned CERCLA remedial
work in accordance with CERCLA section 121(f)(2); or
(e) if the Department reviewed the ROD and/or
other EPA decision for remedial actions at such site and has no comment with
respect thereto.
(2)310
CMR 40.0000 shall apply to any release or
threat of release of oil and/or hazardous material and to any response action
that is not subject to CERCLA.
(3)
The Department shall take appropriate actions to obtain any federal monies
available to fund response actions.
(4) The Department shall seek to incorporate
the requirements, standards and procedures established by M.G.L. c. 21E, and/or
310
CMR 40.0000, to the extent practicable as
follows:
(a) in each site-specific
cooperative agreement;
(b) in each
Superfund state contract under CERCLA; and
(c) during the processes set forth in
40 CFR
300.515(d) and
(e).
(5) No provision in 310 CMR 40.0111 shall be
construed to limit or waive the Department's authority to concur with the ROD
for remedial actions at any NPL site.
(6) No provision in 310 CMR 40.0111 shall be
construed to limit or waive the application of any state law or regulation
other than M.G.L. c. 21E, and
310
CMR 40.0000, or any authority delegated to
any agency of the Commonwealth pursuant to federal law.
(7) No provision in 310 CMR 40.0111 shall be
construed to limit or waive the Commonwealth's authority under CERCLA
including, but not limited to, the right to:
(a) be substantially and meaningfully
involved in the initiation, development and selection of response actions at
NPL Sites; and
(b) bring or
maintain an action under CERCLA or any other law for purposes of attaining
state standards, requirements, criteria or limitations with respect to CERCLA
remedial work.
(8) At
disposal sites deemed by the Department to be Adequately Regulated pursuant to
310 CMR 40.0111 where the selected remedy relies, in whole or in part, on the
imposition of land use controls to minimize the potential for human or
ecological exposure to contamination or to protect the integrity of a remedy,
such land use controls may be implemented through a Notice of Activity and Use
Limitation subject to the written approval of EPA and the Department. Such
Notices of Activity and Use Limitation shall be implemented on a form or forms
developed by the Department for such purpose, and shall include such additional
terms as EPA and the Department may in writing approve to achieve the
objectives of the selected remedy, and shall:
(a) be subject to
310
CMR 40.0020(5),
310
CMR 40.1080(4), and those
provisions of M.G.L. c. 21E, and
310
CMR 40.0000 that otherwise apply to Notices
of Activity and Use Limitations, except for any such provisions that require
the use of the forms contained in
310
CMR 40.1099, any such provisions that require
such Notices of Activity and Use Limitation or any Amendment or Termination
thereof to be signed by a Licensed Site Professional, and any such provisions
applicable to Notices of Activity and Use Limitations contained in:
1.
310
CMR 40.0020(1);
2.
310
CMR 40.0900;
3.
310
CMR 40.1005 through
310
CMR 40.1067;
4.
310
CMR 40.1080(1) and (2);
and
5.
310
CMR 40.1400.
(b) incorporate the land use control
requirements set forth in an institutional control design statement approved by
EPA; and
(c) be amended or
terminated only by means of an Amendment of a Notice of Activity and Use
Limitation or Termination of a Notice of Activity and Use Limitation, as
applicable, approved in writing by EPA and the Department.
(9) Compliance with the terms and conditions
of a Notice of Activity and Use Limitation implemented at an adequately
regulated disposal site pursuant to 310 CMR 40.0111(8) is subject to audit and
enforcement pursuant to M.G.L. c. 21E and
310
CMR 40.0000 and M.G.L. c. 21A, § 16 and
310 CMR
5.00: Administrative
Penalty.
(10) Adequately
regulated disposal sites subject to CERCLA, or portions of such disposal sites,
will be considered to have reached a Permanent Solution for the purposes of
M.G.L. 21E and
310
CMR 40.0000 under the following conditions:
(a) Adequately regulated disposal sites that
have reached site completion status pursuant to a Final Close-out Report
approved by EPA pursuant to CERCLA and the NCP, or pursuant to an equivalent
report approved by EPA and identified by the Department in writing, will be
considered to have achieved a Permanent Solution.
(b) Portions of adequately regulated disposal
sites will be considered to have achieved a Permanent Solution for the purposes
of M.G.L. c. 21E and
310
CMR 40.0000 when they:
1. are addressed pursuant to one or more
Remedial Actions conducted under CERCLA and the NCP;
2. have reached Remedial Action Completion
status pursuant to a Remedial Action Report approved by EPA pursuant to CERCLA
and the NCP, or pursuant to an equivalent report approved by EPA and identified
by the Department in writing; and
3. have reached all remedial action
objectives and associated cleanup levels specified in the applicable
ROD(s).
(c) Portions of
adequately regulated disposal sites that have reached a Permanent Solution
pursuant to this 310 CMR 40.0111(10) may constitute a portion or the entirety
of one or more Operable Units of the applicable disposal site under CERCLA and
the NCP.
(11) Adequately
regulated disposal sites subject to CERCLA, or portions of such disposal sites,
will be considered to have reached a Remedy Operation Status for the purposes
of M.G.L. c. 21E and
310
CMR 40.0000 under the following conditions:
(a) Adequately regulated disposal sites that
have reached construction complete status pursuant to a Preliminary Close-out
Report approved by EPA pursuant to CERCLA and the NCP, or pursuant to an
equivalent report approved by EPA and identified by the Department in writing,
and that have not yet reached a Permanent Solution pursuant to 310 CMR
40.0111(10) will be considered to have achieved Remedy Operation Status for the
purposes of M.G.L. 21E, and
310
CMR 40.0000.
(b) Portions of adequately regulated disposal
sites will be considered to have achieved Remedy Operation Status for the
purposes of M.G.L. 21E and
310
CMR 40.0000 when they:
1. are addressed pursuant to one or more
Remedial Actions conducted under CERCLA and the NCP;
2. have reached Remedial Action Completion
status pursuant to a Remedial Action Report approved by EPA pursuant to CERCLA
and the NCP, or pursuant to a similar report approved by EPA and identified by
the Department in writing; and
3.
have not reached a Permanent Solution pursuant to 310 CMR
40.0111(10).
(c) Portions
of adequately regulated disposal sites that have reached Remedy Operation
Status pursuant to this 310 CMR 40.0111(11) may constitute a portion or the
entirety of one or more Operable Units of the applicable site under CERCLA and
the NCP.
