Code of Massachusetts Regulations
310 CMR - DEPARTMENT OF ENVIRONMENTAL PROTECTION
Title 310 CMR 40.0000 - Massachusetts Contingency Plan
Subpart D - PRELIMINARY RESPONSE ACTIONS AND RISK REDUCTION MEASURES
Section 40.0420 - Requirements, Approvals, and Time Lines for Conducting Immediate Response Actions

Universal Citation: 310 CMR 40.0000 MA Code of Regs 40.0420

Current through Register 1531, September 27, 2024

(1) Immediate Response Actions shall be taken by RPs, and may be taken by PRPs or Other Persons, in response to all releases and threats of release described in 310 CMR 40.0412.

(2) Immediate Response Actions shall be conducted in compliance with all applicable provisions and time lines specified in 310 CMR 40.0400, and in compliance with any response action requirements deemed necessary by the Department and/or specified by the Department in its approval of Immediate Response Action Plans.

(3) RPs, PRPs and Other Persons shall communicate to the Department their intentions to conduct Immediate Response Actions which are required pursuant to 310 CMR 40.0412. Such communication shall be provided orally to the Department on the earliest of the following dates:

(a) at the time an RP, PRP, or Other Person is providing oral notification to the Department of a "Two Hour" or "72 Hour" release or threat of release described in 310 CMR 40.0311 through 40.0314;

(b) at the time a person is orally informed by the Department that they are an RP or PRP for a site at which an Immediate Response Action is required pursuant to 310 CMR 40.0412;

(c) within 72 hours of the time a person receives a Notice of Responsibility from the Department indicating that they are an RP or PRP for a site at which an Immediate Response Action is required pursuant to 310 CMR 40.0412; or

(d) within an Interim Deadline specified by the Department pursuant to 310 CMR 40.0167.

(4) When orally communicating to the Department their intentions to conduct an Immediate Response Action, RPs, PRPs or Other Persons shall inform the Department:

(a) whether or not the RP, PRP or Other Person intends to conduct an Immediate Response Action in the time period and manner warranted by the release, threat of release and/or site conditions, in compliance with all applicable provisions of 310 CMR 40.0400, and in compliance with any specific response action requirements which have been communicated to them by the Department;

(b) whether the Immediate Response Action will involve the implementation of remedial actions; and

(c) if remedial actions are proposed, details on the nature and extent of such actions.

(5) Upon review and consideration of the oral communication provided by the RP, PRP or Other Person, DEP shall orally approve, deny, or conditionally approve:

(a) the details of remedial actions proposed at the time of such communication, in cases where the Immediate Response Action will involve removal or containment actions; or

(b) a recommendation that remedial actions are not required at the time of such communication, in cases where the Immediate Response Action will involve assessment actions only.

(6) Except as provided in 310 CMR 40.0421, approval from the Department shall be required prior to the implementation of an Immediate Response Action, or significant modification of a previously approved Immediate Response Action that involves remedial actions. Such approval may be granted orally by the Department in situations where there has been a sudden release of oil and/or hazardous material, where there exists a threat of release of oil and/or hazardous material, and in other cases where written approval would delay the timely implementation of an Immediate Response Action. Where time permits, and in situations where the Department declines to provide oral approval, RPs, PRPs, and Other Persons shall seek approval to conduct Immediate Response Actions by submittal to the Department of an Immediate Response Action Plan pursuant to the provisions of 310 CMR 40.0420(7) and 40.0424.

(7) Except as provided at 310 CMR 40.0420(8), and without regard to whether oral approval was given by the Department to conduct or initiate Immediate Response Actions, RPs and other persons conducting response actions shall submit to the Department an Immediate Response Action Plan, within the earliest of the following time periods:

(a) within 60 days of providing oral notification to the Department of those "Two Hour" or "72 Hour" releases or threats of release specified in 310 CMR 40.0311 through 40.0314;

(b) within 60 days of orally communicating to the Department knowledge of a Condition of Substantial Release Migration at a disposal site;

(c) within 60 days of the date that the Department issues a Notice of Responsibility indicating that they are an RP or PRP for a site at which an Immediate Response Action is required pursuant to 310 CMR 40.0412; or

(d) within a time period established by the Department as an Interim Deadline in accordance with 310 CMR 40.0167.

(8) Submission to the Department of an Immediate Response Action Plan is not required if an Immediate Response Action Completion Report, as described in 310 CMR 40.0427, or a Permanent Solution Statement, as described in 310 CMR 40.1000, is received by the Department by the due date of the Immediate Response Action Plan.

(9) All written Immediate Response Action Plans submitted to the Department shall be approved, conditionally approved, or denied by the Department in writing within 21 days of receipt. Approval of such plan shall be presumed if the Department does not issue a written approval or denial of said plan within 21 days of receipt. Immediate Response Actions that had previously been orally approved by the Department shall continue during this review period.

(10) In approving an Immediate Response Action Plan, the Department may specify conditions of approval, including, but not limited to:

(a) the role of the Department in overseeing or conducting various elements of the Immediate Response Action;

(b) Interim Deadlines for one or more elements of the Immediate Response Action; or

(c) submittal requirements for one or more elements of the Immediate Response Action.

(11) RPs, PRPs and Other Persons conducting Immediate Response Actions shall do so in conformance with all conditions and deadlines of any oral or written approval granted by the Department pursuant to 310 CMR 40.0420.

(12) Approval from the Department shall not be required to conduct or initiate Immediate Response Actions that consist solely of the construction of a fence and/or the posting of signs, provided the Department is informed of such actions in the next required response action submittal.

(13) Presumptive approval of an Immediate Response Action Plan pursuant to 310 CMR 40.0420(9) means the RP, PRP or Other Person has approval to proceed with Immediate Response Actions in compliance with all applicable provisions of 310 CMR 40.0000. Such presumptive approval shall not be construed as approval by the Department of the scope or adequacy of plans or of the response actions as actually conducted, or as forgiveness of noncompliance with any provision of 310 CMR 40.0000.

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