Current through Register 1531, September 27, 2024
(1) The purpose of an Activity and Use
Limitation is to narrow the scope of exposure assumptions used to characterize
risks to human health from a release pursuant to
310
CMR 40.0900, by specifying activities and
uses that are prohibited and allowed at the disposal site in the future. 310
CMR 40.1012 establishes rules for determining when an Activity and Use
Limitation must be used, when one cannot be used, and when one may be a factor
to be considered in appropriately characterizing soil and groundwater at a
disposal site, pursuant to
310
CMR 40.0923(3).
(2) Except as provided in 310 CMR 40.1012(3)
and 310 CMR 40.1013, Activity and
Use Limitations shall be required:
(a) at all
disposal sites or portions of disposal sites for which a Permanent Solution and
the risk characterization pursuant to
310
CMR 40.0900 used to support the Permanent
Solution are based upon the restriction or limitation of Site Activities and
Uses to achieve or maintain a level of No Significant Risk including:
1. any disposal site or portion of a disposal
site for which a Permanent Solution is based on MCP Method 1 or 2 Soil
Standards and the Exposure Point Concentrations of oil and/or hazardous
material exceed the S-1 standards but meet applicable S-2 or S-3
standards;
2. any disposal site or
portion of a disposal site where a Method 3 Risk Characterization performed
pursuant to 310 CMR 40.0990 relies on reduced exposure potential due to the
assumption of limited site use; and
3. any disposal site or portion of a disposal
site at which the oil and/or hazardous material in soil located at a depth
greater than 15 feet from the ground surface exceeds an applicable Method 3
Ceiling Limit in Soil listed at
310
CMR 40.0996(7) or
determined at
310
CMR 40.0996(8);
and
4. any disposal site or portion
of a disposal site where visible coal tar waste deposits are located at a depth
greater than 15 feet from the ground surface pursuant to
310
CMR 40.0997(3).
(b) at all disposal sites for
which a Permanent Solution relies upon an Exposure Pathway Mitigation Measure
to prevent exposure to levels of oil and/or hazardous material that would
otherwise pose a significant risk of harm to health, safety, public welfare or
the environment, including:
1. one or more
Passive Exposure Pathway Mitigation Measures; or
2. one or more Active Exposure Pathway
Mitigation Measures implemented pursuant to the requirements at
310
CMR 40.1025;
(c) at all disposal sites where an existing
private water supply well(s) is removed from service as a source of drinking
water and maintained for uses other than as a private water supply in
accordance with the provisions of
310
CMR 40.0932(5)(d);
(d) at all disposal sites for which a
Permanent Solution is achieved and the thickness of visible NAPL in an
excavation, boring or monitoring well remaining at a disposal site is or is
anticipated to be greater than 1/2 inch; and
(e) at all disposal sites at Non-licensed
Sites pursuant to
310
CMR 40.0115 where a Permanent Solution or
Temporary Solution is achieved and Radioactive Material emitting Radiation
above background level is present.
(3) Activity and Use Limitations shall not be
required, but may be used to provide notice of the existence of residual
contamination to future holders of an interest(s) in property that is located
within:
(a) disposal sites or portions of
disposal sites where the concentrations of oil and/or hazardous material have
been reduced to background or where the requirements described in
310
CMR 40.0923(3)(b) have been
met;
(b) disposal sites or portions
of disposal sites at which residual contamination at levels at or below the
applicable Method 3 Ceiling Limits for Soil listed or determined in
310
CMR 40.0996 is located at a depth greater
than 15 feet from the ground surface;
(c) any disposal site or portion of a
disposal site for which the Permanent Solution is based upon one or more of the
limitations, assumptions or conditions on Site Activities and Uses specified at
310
CMR 40.1013;
(d) disposal sites or portions of a disposal
site for which potential risks are characterized using Method 1 (310 CMR
40.0970) if the levels of oil and/or
hazardous material in soil are at or below the applicable Method 1 category S-1
soil standards listed in
310
CMR 40.0975(6);
(e) at disposal sites or portions of a
disposal site for which potential risks are characterized using Method 2
(310
CMR 40.0980) if the levels of oil and/or
hazardous material are at or below the applicable category S-1 soil standards
identified in
310
CMR 40.0984 and
40.0985;
(f) disposal sites or portions of a disposal
site for which potential risks are characterized using Method 3 (310 CMR
40.0990) if the levels of oil and/or
hazardous material pose No Significant Risk pursuant to
310
CMR 40.0990, including comparison to any
applicable or suitably analogous standards, and no limitations on-site use were
assumed or implied in the Risk Characterization;
(g) except where an Activity and Use
Limitation is required pursuant to 310 CMR 40.1012(2)(e), any disposal site or
portion of a disposal site where all substantial hazards have been eliminated
and where all applicable requirements for a Temporary Solution have been met
pursuant to
310
CMR 40.1050;
(h) any disposal site or portion of a
disposal site where all substantial hazards have been eliminated and where all
applicable requirements for Remedy Operation Status have been met pursuant to
310
CMR 40.0893; and
(i) any other disposal site or portion of a
disposal site where an Activity and U se Limitation is not expressly prohibited
by 310 CMR 40.1012.
(4)
Activity and Use Limitations shall not be used:
(a) to change the groundwater category of
groundwater categorized as GW-1 or GW-2 pursuant to
310
CMR 40.0932; or
(b) to justify a conclusion that a condition
of No Significant Risk exists or has been achieved at sites characterized using
Method 1 or Method 2 if an identified Exposure Point Concentration exceeds an
applicable Method 1 or Method 2 standard.
(5) Activity and Use Limitations shall:
(a) provide notice to holders of any
interest(s) in a property or a portion thereof (including without limitation,
owners, lessees, tenants, mortgagees, and holders of easement rights) of the
existence and location of oil and/or hazardous material at such property and
the Activity and Use Limitations that have been implemented in response
thereto; and
(b) establish a duty
to evaluate risks associated with proposed changes in Site Activities and Uses
on the subject property that could increase the risk of harm to health, safety,
public welfare or the environment pursuant to the requirements of
310
CMR 40.1080, to perform additional response
actions prior to any such change in Site Activities and Uses, as required by
310
CMR 40.0000, and to notify the Department of
any reportable condition created by a change in Site Activity and
Use.
(6) Any Activity and
Use Limitations applied at a disposal site pursuant to
310
CMR 40.0000 shall be instituted and
maintained in accordance with
310
CMR 40.1070 through
310
CMR 40.1099.
(7) The implementation of an Activity and Use
Limitation that supports a Permanent or Temporary Solution shall be documented
in the Permanent Solution Statement as required pursuant to
310
CMR 40.1056(1)(e) and (2)(h)
or in the Temporary Solution Statement as
required pursuant to
310
CMR 40.1057(1)(e) and
(2)(h).
(8) A Permanent Solution that relies on the
implementation of an Activity and Use Limitation is a Permanent Solution with
Conditions pursuant to
310
CMR 40.1041(2).