Code of Massachusetts Regulations
310 CMR - DEPARTMENT OF ENVIRONMENTAL PROTECTION
Title 310 CMR 40.0000 - Massachusetts Contingency Plan
Subpart B - ORGANIZATION AND RESPONSIBILITIES
Section 40.0173 - Site Access Authorization

Universal Citation: 310 CMR 40.0000 MA Code of Regs 40.0173

Current through Register 1531, September 27, 2024

(1) After making reasonable efforts to obtain reasonable access to any site or other location to be investigated as a possible site not owned by him or her, a RP, PRP or Other Person who is unable to obtain such access may request, in writing, that the Department authorize him or her, or his or her employees, agents, representatives or contractors, to enter such site or location for the purpose of performing one or more necessary response actions. Each such request for authorization shall include all of the following information:

(a) the identity of the person making the request and his or her relationship to the site or location;

(b) the nature and location of the response action(s) that he or she intends to undertake, the anticipated duration of the response action(s) and the reason(s) such access is necessary to perform the response action(s);

(c) the identity of the person or persons who own or operate the site or location to which the Department's authorization for access is sought;

(d) the results of any and all attempts to obtain such access; and

(e) certification that a copy of the request has been sent to each person or persons who own or operate such sites or locations.

(2) Any person who intends to submit such a request for authorization to the Department shall send a copy thereof to each person who owns and operates the site or location to which access is sought by certified mail, return receipt requested, and a statement informing such person that he or she may file a response thereto with the Department in accordance with 310 CMR 40.0173, prior to submitting the request to the Department. Each person to whom a copy of the request is sent may submit a response to the request, in writing, to the Department.

(3) The Department may take any of the following actions in response to a request for such authorization:

(a) the Department may authorize any person, in writing, pursuant to its authority under M.G.L. c. 21E, § 8, to enter any site, vessel or location upon consent of the owner or operator thereof for the purpose of performing one or more response actions in accordance with any terms, conditions or requirements established by the Department;

(b) the Department may issue to any person a Request for Information;

(c) the Department may issue an order under M.G.L. c. 21E, §§ 9 or 10, requiring any person to perform one or more response actions;

(d) the Department may seek and execute an administrative inspection warrant or criminal search warrant in accordance with applicable law;

(e) the Department may take or arrange the performance of any necessary response action in accordance with M.G.L. c. 21E and 310 CMR 40.0000;

(f) the Department may issue a Notice of Responsibility to any person who is a PRP; and

(g) the Department may deny the request or take any other action authorized by M.G.L. c. 21E, 310 CMR 40.0000 or any other law.

(4) In addition to the actions set forth in 310 CMR 40.0173(3), the Department may designate as its authorized representative for the purpose of access one or more RPs, PRPs or Other Persons, including employees, agents and contractors of such parties. The Department may exercise the authority contained in M.G.L. c. 21E, § 8, to obtain access for its designated representative. An RP, PRP or Other Person may only be designated as the Department's authorized representative if such person has agreed to serve as the Department's designated representative and to indemnify the Department to the Department's satisfaction for any injuries or damages that occur as a result of the activities undertaken by such person pursuant to such designation.

(5) The Department's decision in response to a request for Site Access Authorization under 310 CMR 40.0173 shall not be subject to M.G.L. c. 30A, or any other law, governing adjudicatory proceedings.

(6) The authority in 310 CMR 40.0173 is intended to be exercised at the Department's discretion. No provision in 310 CMR 40.0173 shall be construed to create in any person a right to the Department's authorization for access or to create any duty of the Department to obtain access to any site or other location for any person.

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