Code of Massachusetts Regulations
310 CMR - DEPARTMENT OF ENVIRONMENTAL PROTECTION
Title 310 CMR 40.0000 - Massachusetts Contingency Plan
Subpart J - PERMANENT AND TEMPORARY SOLUTIONS
Section 40.1071 - Grants of Environmental Restrictions for Disposal Sites Where a RP, PRP or Other Person Conducts Response Actions
Universal Citation: 310 CMR 40.0000 MA Code of Regs 40.1071
Current through Register 1531, September 27, 2024
(1) General Requirements At any disposal site or portion of a disposal site where a RP, PRP or Other Person is conducting a response action(s) for which a Grant of Environmental Restriction has been selected as a form of Activity and Use Limitation pursuant to 310 CMR 40.1070, the following requirements shall be met:
(a) the Grant of Environmental
Restriction shall be prepared using Form 1072A set forth in
310
CMR 40.1099;
(b) an Activity and Use Limitation Opinion
from a Licensed Site Professional shall be submitted on a form prescribed by
the Department with each Grant of Environmental Restriction as an exhibit of
the Restriction and shall specify:
1. why the
Grant of Environmental Restriction is appropriate to:
a. achieve and/or maintain a level of No
Significant Risk for a Permanent Solution; or
b. achieve a condition of No Substantial
Hazard for a Temporary Solution;
2. Site Activities and Uses to be prohibited
and/or restricted;
3. Site
Activities and Uses to be permitted; and
4. obligations and conditions necessary to
meet the objectives of the Grant of Environmental
Restriction;
(c) the
Grant of Environmental Restriction shall be submitted to the Department for the
Commissioner's signature with the applicable fee pursuant to
310 CMR
4.00; and
(d) the Grant of Environmental Restriction,
signed by the Commissioner, shall be recorded and/or registered as specified in
310 CMR 40.1071(3). Acceptance of any such Restriction shall not be construed
or deemed to imply Department approval of the adequacy of any response actions
performed at the disposal site.
(2) Contents of a Grant of Environmental Restriction A Grant of Environmental Restriction shall contain the following information:
(a) a
description of the property and disposal site, including:
1. the location of the property and its
street address;
2. a metes and
bounds description of the parcel(s) of land which contain(s) the area that is
subject to the Grant of Environmental Restriction;
3. a reference to a survey plan of such
parcel(s) of land, prepared by a Massachusetts Registered Land Surveyor, that
has been recorded as a plan with the appropriate registry of deeds and/or to a
Land Court Plan;
4. if the area
subject to the Grant of Environmental Restriction (i.e. "the
Restricted Area") comprises only a portion of the property described in 310 CMR
40.1071(2)(a)2, a metes and bounds description of the Restricted Area; and:
a. (for registered land only) an 81/2" x
11" survey plan, prepared by a Massachusetts Registered Land Surveyor, which
shows the metes and bounds of the Restricted Area, attached as an exhibit to
the Grant of Environmental Restriction; or
b. (for unregistered land only) a reference
to a survey plan of the Restricted Area, prepared by a Massachusetts Registered
Land Surveyor, that has been recorded as a plan with the appropriate registry
of deeds;
5. an
81/2" x 11" sketch plan showing the location of the Restricted Area in
relation to the boundaries of the disposal site to the extent that the
boundaries of the disposal site have been established.
(b) name(s) of the property
owner(s);
(c) if a person(s)
signing the Grant of Environmental Restriction is not an individual signing on
his or her own behalf, but rather on behalf of an entity (LLC, LLP, limited
partnership, etc.), or as trustee, executor, or attorney in
fact, documentation consistent with conveyancing standards and practices
verifying that the person(s) signing the Grant of Environmental Restriction has
the authority to sign such document shall be submitted as an exhibit to the
Grant of Environmental Restriction verifying that the person(s) signing the
grant is authorized to do so. If the property owner is a corporation, such
documentation shall consist of:
1. a Clerk's
Certificate of Incumbency from the clerk of the corporation certifying that the
person(s) signing the Grant of Environmental Restriction on behalf of the
corporation held his or her position as of the date of the Grant of
Environmental Restriction; and
2.
unless the corporate person(s) signing the Grant of Environmental Restriction
holds the position of both president or vice president and treasurer or
assistant treasurer, a Clerk's Certificate from the clerk or secretary of the
corporation certifying a corporate vote, resolution, or by-law authorizing the
person(s) to do so;
(d)
the disposal site name and DEP Release Tracking Number(s);
(e) a statement that the Grant of
Environmental Restriction is a gift to the Department pursuant to M.G.L. c.
21E, § 6;
(f) a statement that
the Grant of Environmental Restriction shall be binding upon the property owner
and any parties claiming by, through, or under said owner, and shall inure to
the benefit of all parties claiming by, through or under the
Department;
(g) an Activity and Use
Limitation Opinion that meets the requirements of 310 CMR
40.1071(1)(b);
(h) a statement that
the Grant of Environmental Restriction shall run in perpetuity or for a
specified number of years, and that the Environmental Restriction conforms to
M.G.L. c. 184, § 26;
(i) a
precise description of the Site Activities and Uses which in accordance with
the Activity and Use Limitation Opinion are restricted on the property such as:
1. construction or placement of buildings,
utilities, roadways, parking lots or other structures;
2. excavating, dredging or otherwise removing
sediments, soils, loam, peat, sand, gravel, rock or other mineral
substance;
3. planting, removal or
destruction of trees, shrubs, or other vegetation;
4. using a private well to supply groundwater
for human consumption; or
5. other
Site Activities and Uses which would likely result in significant risk or a
substantial hazard from exposures to oil and/or hazardous material if the Site
Activity and Use were to take place on the property;
(j) a precise description of the obligations
and conditions which, in accordance with the Activity and Use Limitation
Opinion, are necessary to meet the objectives of the Grant of Environmental
Restriction. Such obligations may include the continued proper operation of
remedial actions, specific procedures governing excavation activities to
protect workers and disposal site neighbors, and the erection and maintenance
of fences to prohibit access of unauthorized persons to the disposal
site;
(k) a precise description of
Site Activities and Uses, which, in accordance with the Activity and Use
Limitation Opinion, may be permitted on the subject property including, without
limitation, specific provisions for purposes of maintenance, alteration, or
repair of utilities, or specific types of land uses;
(l) except where the property to be
restricted is not part of a disposal site, procedures to be followed when an
emergency requires immediate excavation of contaminated soil to repair utility
lines or other infrastructure on the disposal site, or to respond to other
types of emergencies (e.g., fire or floods) that may result in
a significant risk of harm from exposure to oil and/or hazardous material at
the disposal site, including:
1. notifying
the Department within two hours of obtaining knowledge of such emergency
condition;
2. limiting disturbance
of contaminated media to the minimum reasonably necessary to adequately respond
to the emergency; and
3.
undertaking specified precautions to minimize exposure of workers and neighbors
of the disposal site to contaminated media (e.g., the need for
specific types of protective clothing for workers conducting the excavation,
and procedures for minimizing the liberation of contaminated dust);
and
4. engaging the services of an
LSP to prepare or supervise preparation and implementation of a written plan
for restoring the site to a condition consistent with the Grant of
Environmental Restriction, and to review and evaluate response actions to
ensure minimal disturbance of contaminated media. A copy of such plan shall be
submitted to the Department within ten days of its execution, with an Opinion
that establishes whether the property subject to the Grant of Environmental
Restriction has been restored to a condition consistent with the Grant of
Environmental Restriction.
(m) easements for the term of the Grant of
Environmental Restriction to the Department, its agents, contractors,
subcontractors, and employees for purposes of providing access to the subject
property to inspect the area subject to the Grant of Environmental Restriction
to ensure compliance with its terms, and to conduct response actions consistent
with M.G.L. c. 21E, and
310
CMR 40.0000;
(n) a provision that the Grant of
Environmental Restriction shall run with the land;
(o) an agreement to incorporate either in
full or by reference the Grant of Environmental Restriction into all future
deeds, easements, mortgages, leases, licenses, occupancy agreements, or any
other instruments conveying an interest in and/or a right to use the
property;
(p) the procedures for
amending and releasing the Grant of Environmental Restriction as described in
310
CMR 40.1080 and
310
CMR 40.1083;
(q) title reference by which the property
owner(s) acquired title to the property; and
(r) the notarized signature(s) of the
property owner(s), the notarized signature and seal of the LSP who signed the
Activity and Use Limitation Opinion, and the signature of the
Commissioner.
(3) Recording/Registering Grants of Environmental Restriction. The Grant of Environmental Restriction shall be recorded and/or registered in accordance with the following:
(a) the Grant of Environmental Restriction
shall be duly recorded and/or registered by the property owner in the
appropriate Registry of Deeds and/or Land Registration Office within 30 days of
the property owner's receipt from the Department of the Grant of Environmental
Restriction as approved; and
(b)
within 30 days of recording and/or registering any Grant of Environmental
Restriction, the property owner shall submit to the Department:
1. a certified Registry copy of the Grant of
Environmental Restriction bearing the book and page/instrument number and/or
document number; and
2. a Registry
copy of the required survey plan(s) referenced in the Grant of Environmental
Restriction, bearing the plan book/plan number(s);
(4) Subordination Agreement The property owner shall obtain and record one or more Subordination Agreements, using Form 1072B set forth in 310 CMR 40.1099, to ensure that the respective interests in the property are subordinated to the Grant of Environmental Restriction. Any Subordination Agreement(s) shall be recorded and/or registered in the appropriate Registry of Deeds and/or Land Registration Office immediately after the recording and/or registration of the Grant of Environmental Restriction. Subordination Agreements shall be obtained from:
(a) any and all holders of a prior interest
in the Restricted Area, and
(b)
from any and all holders of a prior interest in the Property insofar as such
interest affects those interests created under the Grant of Environmental
Restriction.
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