Current through Register 1531, September 27, 2024
(1)
General. Any person who meets the requirements of, and
complies with the procedures in, 310 CMR 40.0183 and
40.0185 shall have
Downgradient Property Status for purposes of
310
CMR 40.0184, unless and until such Status is
terminated in accordance with
310
CMR 40.0186.
(2)
Criteria. Any
present or past owner or operator of a downgradient or downstream property
where a release of oil and/or hazardous material has come to be located may
provide a Downgradient Property Status Submittal to the Department if all of
the following are met:
(a) such person has
notified the Department of the release if notification is required by
310
CMR 40.0300;
(b) the source of the release of oil and/or
hazardous material at the downgradient or downstream property is or was located
on one or more upgradient or upstream location(s) and oil and/or hazardous
material from that location(s) has come to be located at the downgradient or
downstream property as a result of migration of the oil and/or hazardous
material in or on groundwater or surface water, regardless of whether the
upgradient or upstream location(s) which is the source has been identified as
the source of the release(s);
(c)
no act of such person has contributed to the release described in 310 CMR
40.0183(2)(b), or caused such release to become worse than it otherwise would
have been;
(d) such person is not,
and was not at any time, affiliated with any other person:
1. who owned or operated the property from
which the release described in 310 CMR 40.0183(2)(b) originated, or caused such
release; and
2. who is potentially
liable under M.G.L. c. 21E for the disposal site through any direct or indirect
contractual, corporate or financial relationship other than:
a. that established by any instrument
creating such person's interest in the downgradient property; or
b. that established by an instrument wholly
unrelated to the disposal site and which would not otherwise render such person
potentially liable as a result of the relationship; and
(e) to the extent such person has
performed response actions at the disposal site, those response actions have
been performed in compliance with the requirements and procedures in M.G.L. c.
21E and
310
CMR 40.0000.
(3)
Content of
Submittal. A Downgradient Property Status Submittal shall consist
of the following:
(a) a completed transmittal
form established by the Department for such purposes;
(b) a Downgradient Property Status Opinion
prepared in accordance with
310
CMR 40.0015 and 310 CMR 40.0183(4);
(c) the certification required by
310
CMR 40.0009; and
(d) the fee, if applicable, required by
310
CMR 4.03: Annual Compliance Assurance
Fee.
(4)
Performance Standard for a Downgradient Property Status
Opinion. A Downgradient Property Status Opinion shall be based on
investigative and assessment actions of sufficient scope and level of effort to
conclude that the criteria in 310 CMR 40.0183(2)(b) have been met. The Opinion
shall include an explanation and documentation of the technical basis for the
conclusions stated therein, and be based on the following:
(a) an evaluation of the boundaries of the
property which is the subject of the Opinion;
(b) an evaluation of the disposal site
boundaries, to the extent they have been defined by assessments conducted to
date;
(c) an evaluation of the
releases of oil and/or hazardous material at the disposal site, to the extent
that such releases have been identified;
(d) an evaluation of the relevant
hydrogeologic conditions, including, at a minimum, groundwater flow direction
and local transport characteristics based on field data, when migration of oil
and/or hazardous material has occurred via groundwater;
(e) a plan showing the downgradient or
downstream property and the disposal site boundaries (to the extent known), the
locations of any known or suspected source(s) of oil and/or hazardous
material(s) release(s) that have come to be located at the downgradient or
downstream property, the direction of groundwater flow and/or surface water
flow (as appropriate), the locations where samples were collected for analysis,
and the results of the analyses; and
(f) an evaluation of the need to conduct an
Immediate Response Action, as defined in
310
CMR 40.0412.
(5)
Notice to Abutters and
PRPs. Prior to, or concurrent with, providing the Downgradient
Property Status Submittal to the Department, the person providing such
Submittal shall provide a copy of the Downgradient Property Status Opinion to
each of the following persons:
(a) the owners
and operators of abutting property upgradient and downgradient from the
property which is the subject of the Submittal and, where the abutting
upgradient and/or downgradient property is a public way, the owners and
operators of the next upgradient and/or downgradient property; and
(b) the owners and operators of any property
which is a known or suspected source of the release.
(6)
Public
Involvement. Public Involvement Activities shall be conducted in
accordance with
310
CMR 40.1400. Public Involvement Activities
required for Downgradient Property Status specifically include
310
CMR 40.1403(3)(g).
