Current through Register 1531, September 27, 2024
(1) At a minimum, Immediate Response Actions
shall involve the assessment of the release or threat of release and/or site
conditions described in
310
CMR 40.0412. The nature and extent of
assessment actions taken as an Immediate Response Action shall be commensurate
with the type and amount of oil and/or hazardous material released or
threatening to be released, site complexity, and the sensitivity of site and
surrounding human and environmental receptors, and shall be adequate and
sufficient for determining:
(a) the degree of
hazard posed by the release, threat of release and/or site
conditions;
(b) whether remedial
actions are required at the site prior to the completion of a Phase IV Remedy
Implementation Plan, as described in
310
CMR 40.0870; and
(c) where appropriate, the nature, extent,
and timing of any required removal or containment actions.
(2) Immediate Response Actions shall be
presumed to require the initiation of one or more containment or removal
actions. Except as provided in 310 CMR 40.0414(3) through 40.0414(5), the
presumption for containment and/or removal actions may be rebutted, however, by
the RP, PRP or Other Person conducting response actions, based upon a showing
by a preponderance of the evidence that:
(a)
the release, threat of release and/or site conditions do not present an
Imminent Hazard, either at the present time or for the time period that is
likely to be required for the implementation and/or completion of Comprehensive
Response Actions; and
(b) the
unmitigated migration of oil and/or hazardous material at the site, at present
and for the time period that is likely to be required for the implementation
and/or completion of Comprehensive Response Actions, is not likely to:
1. substantially increase the extent, area,
or magnitude of environmental contamination;
2. substantially increase the degree or
complexity of future remedial actions;
3. substantially increase cleanup costs;
or
4. otherwise result in a
substantial hazard to health, safety, public welfare or the
environment.
(3) Immediate Response Actions shall be
presumed to require the elimination and/or mitigation of Critical Exposure
Pathways, which are defined in
310
CMR 40.0006. This presumption may be
rebutted, however, by the RP, PRP or Other Person conducting response actions,
based upon a showing by a preponderance of the evidence that:
(a) the Critical Exposure Pathway(s) does not
present an Imminent Hazard, either at present or for the time period that is
likely to be required for the implementation and/or completion of Comprehensive
Response Actions;
(b) it is not
feasible to eliminate the Critical Exposure Pathway(s); and
(c) in cases where it is not feasible to
eliminate the Critical Exposure Pathway(s), it is not feasible to mitigate the
Critical Exposure Pathway(s).
(4) Immediate Response Actions shall be
presumed to require the prevention and/or mitigation of Critical Exposure
Pathways, which are defined in
310
CMR 40.0006. This presumption may be
rebutted, however, by the RP, PRP or Other Person conducting response actions,
based upon a showing by a preponderance of the evidence, that:
(a) the Critical Exposure Pathway(s) does not
present an Imminent Hazard, either at present or for the time period that is
likely to be required for the implementation and/or completion of Comprehensive
Response Actions;
(b) it is not
feasible to prevent the Critical Exposure Pathway(s); and
(c) in cases where prevention is not
feasible, it is not feasible to mitigate the Critical Exposure
Pathway(s).
(5) Immediate
Response Actions shall be presumed to require the prevention of impact(s) to
public water supplies at sites where such impact is likely to occur within the
time period that is likely to be required for the implementation and/or
completion of Comprehensive Response Actions. This presumption may be rebutted,
however, by the RP, PRP or Other Person conducting response actions, based upon
a showing by a preponderance of the evidence that:
(a) it is unlikely that the site will present
impact(s) to the public water supply, for the time period that is likely to be
required for the implementation and/or completion of Comprehensive Response
Actions;
(b) it is not feasible to
prevent the impact(s) to the public water supply; and
(c) in cases where prevention is not
feasible, it is not feasible to mitigate the impact(s) to the public water
supply.
(6) Immediate
Response Actions may include:
(a) preparation
of technical reports or memoranda documenting why accelerated removal or
containment actions are or are not required;
(b) an assessment of whether an Imminent
Hazard to health, safety, public welfare or the environment exists at the
site;
(c) collection and assessment
of soil, sediment, surface water, groundwater, soil gas, or atmospheric or
indoor air samples;
(d) assessment
of the validity of underground storage tank testing results;
(e) assessment of the need to take timely
actions to prevent releases from occurring at a site where a threat of release
has been identified;
(f)
installation of fences, warning signs, including, where appropriate,
multilingual and symbolic signs, and/or the institution of other security or
site control measures;
(g)
installation of drainage controls;
(h) construction or stabilization of berms,
dikes or impoundments;
(i)
temporary covering or capping of contaminated soils or sludges;
(j) installation of waste or product recovery
and groundwater treatment systems or soil vapor extraction systems;
(k) removal of contaminated soils;
(l) removal of the contents of, or removal
of, drums, barrels, tanks or other bulk containers which contain or may contain
oil and/or hazardous material;
(m)
temporary evacuation or relocation of residents from the site and/or
surrounding area;
(n) provision of
temporary alternative water supplies;
(o) installation of a sub-slab soil gas
depressurization system beneath an occupied structure; or
(p) any other assessment, containment or
removal action consistent with the purpose and scope of an Immediate Response
Action or otherwise deemed necessary by the Department.
(7) A permanent cap or Engineered Barrier
that is constructed in accordance with the performance standards contained in
310
CMR 40.0998 as an Immediate Response Action
will not be considered part of a Permanent Solution at a disposal site, unless
and until a Phase III is performed pursuant to the provisions of
310
CMR 40.0850 demonstrating the lack of a
feasible alternative.
