Current through Register 1531, September 27, 2024
(1) The criteria
described in 310 CMR 40.0860 apply to:
(a)
evaluating the feasibility of implementing a Permanent Solution;
(b) evaluating the feasibility of reducing
the concentrations of oil and hazardous material in the environment to levels
that achieve or approach Background;
(c) evaluating the feasibility of reducing
the concentrations of oil and hazardous material in soil at a disposal site to
levels at or below applicable soil Method 3 Ceiling Limits;
(d) evaluating the feasibility of
eliminating, preventing or mitigating Critical Exposure Pathway(s);
and
(e) evaluating the feasibility
of eliminating or controlling each Source of OHM Contamination, controlling
migration of OHM, and removing NAPL at a disposal site in support of a
Permanent or Temporary Solution pursuant to
310
CMR 40.1003(5) through (7),
respectively.
(2) An
evaluation of the feasibility of implementing a Permanent Solution shall be
performed in all cases where the selected Comprehensive Remedial Alternative
will achieve a Temporary Solution.
(3) An evaluation of the feasibility of
reducing the concentrations of oil and hazardous material in the environment at
the disposal site or a portion of the disposal site to levels that achieve or
approach Background shall be conducted in all cases where the Comprehensive
Remedial Alternative is selected to achieve a Permanent Solution unless the
Permanent Solution selected is designed to achieve and achieves
Background.
(4) An evaluation of
the feasibility of reducing the concentrations of oil and hazardous material in
soil at the disposal site to levels at or below the applicable soil Method 3
Ceiling Limits shall be conducted before a Comprehensive Remedial Alternative
is selected as a Permanent Solution that would leave oil and/or hazardous
material in soil at concentrations above the soil Method 3 Ceiling Limits at a
depth greater than 15 feet below the ground surface or beneath an Engineered
Barrier pursuant to
310
CMR 40.0998.
(5) A Comprehensive Remedial Alternative that
would achieve a Permanent Solution and other response actions listed in 310 CMR
40.0860(1) shall be considered feasible, unless:
(a) the alternative is not technologically
feasible, as specified in 310 CMR 40.0860(6);
(b) the costs of conducting, or the risks
resulting from the alternative would not be justified by the benefits,
considering such factors as potential damage to human health or the
environment, cost of environmental restoration, long term operation and
maintenance costs, and non-pecuniary values as determined by the benefit-cost
analysis in 310 CMR 40.0860(7);
(c)
individuals with the expertise needed to effectively implement the alternative
would not be available, regardless of arrangements for securing their
services;
(d) the alternative would
necessitate land disposal other than at the site itself and no off-site
facility is available in the Commonwealth or in other states that is in full
compliance with all applicable federal and state regulatory requirements;
or
(e) an alternative is selected
for a portion of a disposal site for which the source of the oil and/or
hazardous material is not located thereon, and the elimination or control of
such source cannot currently be achieved by the party conducting the response
actions at that portion of the disposal site. In such instances, a Temporary
Solution shall be implemented for that portion of the disposal site to which
the selected alternative applies.
(6)
Technological
Feasibility. A Comprehensive Remedial Alternative and other
response actions listed in 310 CMR 40.0860(1) shall be considered
technologically feasible, unless:
(a)
existing technology or reasonable modifications of existing technology cannot
remediate the oil and hazardous material present at the disposal site to the
extent necessary to attain a level of No Significant Risk or, when required to
be considered, to levels that approach or achieve Background;
(b) the reliability of the identified
alternative has not been sufficiently proven at other sites or through pilot
tests and a substantial uncertainty exists as to whether it will effectively
reduce risk; or
(c) the identified
alternative cannot comply with or be modified to comply with applicable
regulatory requirements.
(7)
Benefit-cost
Analysis. The benefits of implementing Comprehensive Remedial
Alternatives to achieve a Permanent Solution or Temporary Solution or of
implementing other response actions listed in 310 CMR 40.0860(1) shall justify
the related costs unless:
(a) the incremental
cost of conducting the Comprehensive Remedial Alternative or other response
action is substantial and disproportionate to the incremental benefit of risk
reduction, environmental restoration, and monetary and non-pecuniary
values;
(b) the risk of harm to
health, safety, public welfare or the environment posed by the implementation
of the alternative cannot be adequately controlled; or
(c) the alternative would destroy more than
5000 square feet of wetlands or wildlife habitat, or would otherwise result in
a substantial deleterious impact to the environment and:
1. other feasible Temporary or Permanent
Solutions exist;
2. the oil and/or
hazardous materials, if any, that have come to be located in such resources do
not bio-accumulate and are not likely to migrate; and
3. the damage to such resources resulting
from the implementation of the alternative would be permanent and
irreparable.
