Code of Massachusetts Regulations
310 CMR - DEPARTMENT OF ENVIRONMENTAL PROTECTION
Title 310 CMR 40.0000 - Massachusetts Contingency Plan
Subpart E - TIER CLASSIFICATION AND RESPONSE ACTION DEADLINES
Section 40.0560 - Response Action Deadlines and Requirements for Tier Classified Disposal Sites

Universal Citation: 310 CMR 40.0000 MA Code of Regs 40.0560

Current through Register 1531, September 27, 2024

(1) Deadlines for Achieving a Permanent Solution, Temporary Solution or Remedy Operation Status. Except as expressly provided by 310 CMR 40.0000 or as otherwise ordered or agreed to in writing by the Department, an RP, PRP or Other Person undertaking response actions at a disposal site shall achieve a Permanent Solution, Temporary Solution, or Remedy Operation Status within five years of the effective date of initial Tier Classification. The eventual achievement of a Permanent Solution is required at all disposal sites where a Temporary Solution or Remedy Operation Status is achieved.

(a) The Tier Classification for a disposal site pursuant to 310 CMR 40.0510 shall expire five years from the effective date of the initial Tier Classification of such disposal site; and

(b) An RP, PRP or Other Person shall not conduct Comprehensive Response Actions pursuant to 310 CMR 40.0800 at a disposal site for which a Tier Classification has expired, unless a Tier Classification Extension is obtained pursuant to 310 CMR 40.0560(7).

(2) Deadlines for Submittals. Except as provided by 310 CMR 40.0530(4), 40.0560(3), or 40.0000 or as otherwise ordered or agreed to in writing by the Department, an RP, PRP or Other Person undertaking response actions at a Tier Classified disposal site shall submit the following documents to the Department by the following deadlines:

(a) a conceptual scope of work for a Phase II - Comprehensive Site Assessment pursuant to 310 CMR 40.0834 prior to the implementation of Phase II field work, updated as necessary to reflect material modifications from the conceptual scope of work submitted pursuant to 310 CMR 40.0510(2)(f) at the time of initial Tier Classification, unless the Phase II field work had been implemented prior to Tier Classification;

(b) a Phase II Report within three years of the effective date of Tier Classification;

(c) if applicable, a Phase III Remedial Action Plan within four years of the effective date of Tier Classification;

(d) if applicable, a Phase IV Remedy Implementation Plan within four years of the effective date of Tier Classification; and

(e) a Permanent Solution Statement, or Temporary Solution Statement pursuant to 310 CMR 40.1000, or a Remedy Operation Status Submittal pursuant to 310 CMR 40.0893, within five years of the effective date of Tier Classification.

(3) Submittal to the Department of those documents described in 310 CMR 40.0560 shall not be required at any disposal site for which a Permanent Solution Statement is submitted to the Department prior to an applicable document submittal deadline.

(4) Approvals.

(a) Except as provided in 310 CMR 40.0560(4)(b), an RP, PRP or Other Person undertaking response actions at a disposal site classified as Tier I or Tier II pursuant to 310 CMR 40.0510 may perform the response actions which are the subject of the submittals required by 310 CMR 40.0560(2) without the Department's prior approval thereof.

(b) Notwithstanding 310 CMR 40.0560(4)(a), the Department may at any time require an RP, PRP or Other Person undertaking response actions at a Tier Classified disposal site to obtain prior Departmental approval of one or more of the submittals specified by 310 CMR 40.0560(2) or the response actions or submittals required pursuant to 310 CMR 40.0800. The Department may require such prior approval for submittals or response actions as they relate to the entire disposal site or to some portion thereof.

(c) No person shall perform Phase IV response actions at a disposal site classified as Tier I or Tier II pursuant to 310 CMR 40.0510, unless and until 20 days have passed from the date of publication of the notice required by 310 CMR 40.0510(3).

(d) No person shall perform Comprehensive Response Actions at Tier ID disposal sites, unless and until the disposal site is classified as Tier I or Tier II pursuant to 310 CMR 40.0510.

(5) Notification of Delay in Compliance with Deadlines for Tier Classified Disposal Sites. Except as provided by 310 CMR 40.0025 or 40.0167 or where a Tier Classification Extension is submitted when the deadline at 310 CMR 40.0560(2)(e) is not met, if any delay in compliance with any deadline or time period required by 310 CMR 40.0560(2) occurs after a disposal site is Tier Classified, the RP, PRP or Other Person performing response action shall notify the Department in writing using a transmittal form provided by the Department for such purposes prior to missing any such deadline or time period, and shall take appropriate measures to minimize such delay in compliance with any deadline or time period. Such notification of delay:

(a) shall state the reason for such delay, the measure or measures to be taken to minimize the delay and a proposed schedule for implementing those measures;

(b) does not forgive an RP's, PRP's or Other Person's noncompliance with deadlines for response actions in 310 CMR 40.0000.

(6) Notification of Initial Field Activities. RPs, PRPs or Other Persons conducting response actions at Tier Classified disposal sites shall notify the Department at least seven days prior to the commencement of initial field activities related to the implementation of Comprehensive Response Actions. Upon such notification, the Department may impose conditions on and/or arrange to observe the conduct of field work including, but not limited to, the installation of monitoring wells, the excavation of test pits, field sampling of environmental media, soil removal, installation of groundwater recovery systems, the start of Phase IV construction activities, and observation of Phase V monitoring activities.

(7) Tier Classification Extensions.

(a) Except as otherwise provided at 310 CMR 40.0560(7)(g) through (i), if a Permanent Solution Statement or Remedy Operation Status Submittal has not been submitted to the Department for a Tier Classified disposal site prior to the expiration of the Tier Classification, the person undertaking response actions at such site shall extend the Tier Classification by submitting a Tier Classification Extension Submittal to the Department.

(b) The Tier Classification Extension Submittal shall be provided to the Department prior to the date of expiration of the Tier Classification as specified at 310 CMR 40.0560(1)(a).

(c) Contents of a Tier Classification Extension Submittal. The Tier Classification Extension Submittal shall consist of the following:
1. a completed transmittal form using a form provided by the Department for such purposes and required supporting documentation, which shall include a statement explaining why a Permanent Solution or Remedy Operation Status has not been achieved at the site;

2. a description of the status of response actions, including a plan and a proposed schedule for implementing such plan, which details the steps that will be taken in order to achieve, at a minimum, a Temporary Solution, if not already achieved, at the disposal site pursuant to 310 CMR 40.1000 within one year of the effective date of the Tier Classification Extension, and a schedule for achieving a Permanent Solution, if feasible;

3. the certification required by 310 CMR 40.0009;

4. the certification required by 310 CMR 40.0540(1);

5. an updated compliance history required by 310 CMR 40.0540(2) since the effective date of the initial Tier Classification; and

6. an LSP Opinion indicating that the plans and proposed schedule for implementing such plans submitted with the Tier Classification Extension are in conformance with the requirements of 310 CMR 40.0000.

(d) Tier Classification Extension Effective Date and Period.
1. Except as otherwise provided at 310 CMR 40.0560(7)(g) and 310 CMR 40.0560(7)(h) or specified by the Department, where a complete Tier Classification Extension Submittal is submitted to the Department, the Tier Classification Extension shall take effect on the expiration date of the previous Tier Classification unless the Department issues a written denial for such Extension.

2. Except as provided at 310 CMR 40.0560(7)(i) or 310 CMR 40.0898(1)(e), or as otherwise specified by the Department, the Extension shall be effective for a period of two years beyond the effective date of the Tier Classification Extension.

3. Except as provided at 310 CMR 40.0560(7)(i), an RP, PRP or Other Person shall submit additional Tier Classification Extensions to the Department pursuant to 310 CMR 40.0560(7) if required thereafter.

(e) The Department reserves the right to reconsider the need for Departmental oversight or to initiate enforcement actions related to any Tier Classification Extension Submittal or when any timeline for conducting response actions pursuant to 310 CMR 40.0560 is exceeded.

(f) A Tier Classification Extension obtained under 310 CMR 40.0560(7) means the RP, PRP or Other Person has approval to continue with response actions in compliance with all applicable provisions of 310 CMR 40.0000. Such Extension does not forgive an RP's, PRP's or Other Person's noncompliance with any provisions of 310 CMR 40.0000, including the failure to meet applicable response action deadlines and shall not be construed as approval by the Department of the scope or adequacy of plans or of the response actions as actually conducted.

(g) Tier Classification Extension after Termination of Remedy Operation Status. A Tier Classification Extension Submittal shall be submitted to the Department upon termination of Remedy Operation Status pursuant to 310 CMR 40.0893(6), unless a Permanent Solution Statement is submitted prior to that date. Notwithstanding 310 CMR 40.0560(7)(d), the Tier Classification Extension in such case shall take effect on the date the Tier Classification Extension is received by the Department and, unless otherwise specified by the Department, shall be effective for a period of two years. An RP, PRP or Other Person shall notify the Department pursuant to 310 CMR 40.0560(7) if additional extensions are required thereafter.

(h) Tier Classification Extension for Remedial Actions after a Permanent Solution Statement has been Submitted. A Tier Classification Extension Submittal submitted to the Department as required pursuant to 310 CMR 40.1067(5)(c), 310 CMR 40.1067(6)(c) or 310 CMR 40.1067(7)(a) shall take effect on the date the Tier Classification Extension is received by the Department and unless otherwise specified by the Department, shall be effective for a period of two years. An RP, PRP or Other Person shall notify the Department pursuant to 310 CMR 40.0560(7) if additional extensions are required thereafter.

(i) Tier Classification Extensions for Post-Temporary Solution Response Actions.
1. If a Temporary Solution Statement for a disposal site is submitted to the Department after March 1, 2024 and by the deadline at 310 CMR 40.0560(2)(e), the Tier Classification for such disposal site shall be deemed to remain in effect and no Tier Classification Extension Submittal shall be required provided that Status Reports and, as applicable, the Periodic Review of the Temporary Solution, are submitted at the frequency specified pursuant to 310 CMR 40.0898 and 310 CMR 40.1050(4).

2. If a Temporary Solution Statement for a disposal site was submitted to the Department prior to March 1, 2024, and the Tier Classification is not expired as of March 1, 2024, the Tier Classification for such disposal site shall be deemed to remain in effect and no Tier Classification Extension Submittal shall be required provided that Status Reports and, as applicable, the Periodic Review of the Temporary Solution, are submitted at the frequency specified pursuant to 310 CMR 40.0898 and 310 CMR 40.1050(4).

3. If a Temporary Solution Statement for a disposal site was submitted to the Department prior to March 1,2024 and the Tier Classification had expired prior to March 1, 2024, the Tier Classification for such disposal site shall be deemed to remain in effect and no Tier Classification Extension Submittal shall be required provided that Status Reports and, as applicable, the Periodic Review of the Temporary Solution had been submitted at the frequency specified pursuant to 310 CMR 40.0898 and 310 CMR 40.1050(4) prior to March 1, 2024.

4. If a Temporary Solution Statement for a disposal site was submitted to the Department prior to March 1, 2024, the Tier Classification had expired prior to March 1, 2024, and Status Reports and, as applicable, the Periodic Review of the Temporary Solution had not been submitted at the frequency specified pursuant to 310 CMR 40.0898 and 310 CMR 40.1050(4) prior to March 1, 2024, then:
a. where Active O&M is occurring, such Status Report shall be submitted with a Tier Classification Extension within six months of March 1, 2024;

b. where Active O&M is not occurring, the Periodic Review of the Temporary Solution shall be submitted with a Tier Classification Extension within one year of March 1, 2024; and

c. following the resumption of the submittal of Status Reports and, as applicable, the Periodic Review of the Temporary Solution at the frequency specified pursuant to 310 CMR 40.0898 and 310 CMR 40.1050(4), no additional Tier Classification Extension Submittal shall be required and the Tier Classification shall be deemed to remain in effect.

(8) Changes in Persons Undertaking Response Actions at Tier Classified Disposal Sites.

(a) No person other than a person who has filed a Tier Classification Submittal for a disposal site with the Department may perform Comprehensive Response Actions at such disposal site unless that person submits a Tier Classification Transfer Submittal to the Department.

(b) Contents of a Tier Classification Transfer Submittal. A Tier Classification Transfer Submittal shall consist of the following:
1. a completed transmittal form using a form provided by the Department for such purposes, which shall include a statement and/or report explaining the reasons for the change in persons undertaking response actions and a proposed effective date for such change;

2. a listing of all Status and Phase Reports for response actions completed since the effective date of the Tier Classification;

3. the certification required by 310 CMR 40.0009 by the current RP, PRP or Other Person for such disposal site and by the transferee;

4. the certification required by 310 CMR 40.0540(1) by the transferee;

5. the compliance history required by 310 CMR 40.0540(2) for the transferee; and

6. an LSP Opinion indicating that the plans and/or reports submitted are in conformance with the requirements of 310 CMR 40.0000.

(c) A change in persons conducting response actions at a Tier Classified disposal site shall take effect 30 days after submission of a complete Tier Classification Transfer Submittal to the Department unless the Department issues a written denial of such transfer prior to the termination of such 30 day time period.

(d) The Department reserves the right to reconsider the need for Departmental oversight or to initiate enforcement actions related to any Tier Classification Transfer Submittal or when any timeline for achieving a Permanent or Temporary Solution pursuant to 310 CMR 40.0560 at a Tier Classified disposal site is not met.

(e) A change in the person conducting response actions at a Tier Classified disposal site does not change the existing response action deadlines unless the new person seeks new deadlines in accordance with 310 CMR 40.0570.

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