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 40.1072 - Process for Applying for a Grant of Environmental Restriction

Universal Citation: 310 CMR 40.0000 MA Code of Regs 40.1072

Current through Register 1531, September 27, 2024

(1) The Department shall review each application for a Grant of Environmental Restriction to ensure that it conforms to all requirements established herein for such instrument.

(2) An application for a Grant of Environmental Restriction shall consist of:

(a) a completed Form 1072A and, if applicable, Form 1072B, set forth in 310 CMR 40.1099;

(b) all other applicable documents set forth in 310 CMR 40.1071; and

(c) a certification of title issued to the Department by an insured title examiner certifying title in the Grantor, and including all encumbrances of record.

(3) An application for a Grant of Environmental Restriction shall not be deemed complete if the Department determines that a Grant of Environmental Restriction application:

(a) fails to contain all required information listed in 310 CMR 40.1071;

(b) fails to include the applicable fee established by 310 CMR 4.10(10)(g)4.; or

(c) is incorrectly filled out.

(4) The Department has no obligation to accept or review an incomplete Grant of Environmental Restriction application.

(5) Processing a Grant of Environmental Restriction Application. For purposes of 310 CMR 4.10(10)(g), the computation of time periods shall commence on the day following the day a Grant of Environmental Restriction application is received at the appropriate Department office or on the day following the day the Grant of Environmental Restriction application fee is received, whichever occurs later.

(a) The applicant and the Department may, by written agreement, extend any schedule for timely action or individual portion thereof for a Grant of Environmental Restriction application pursuant to 310 CMR 4.00: Timely Action Schedule and Fee Provisions and 310 CMR 40.1072.

(b) Administrative Completeness Review. The Department shall conduct an Administrative Completeness Review of a Grant of Environmental Restriction Application in accordance with 310 CMR 4.00: Timely Action Schedule and Fee Provisions and 310 CMR 40.1072. The Administrative Completeness Review shall determine whether all required elements of the application have been submitted by the applicant.
1. Initial Administrative Completeness Review (AC-1). The initial AC-1 review shall comply with the following requirements:
a. The AC-1 Review shall result in a written determination of administrative completeness or a statement of administrative deficiencies.

b. A determination of administrative completeness shall mean that the permit application may proceed to Technical Review.

c. A statement of administrative deficiencies shall end the AC-1 review period.

d. The Department shall send a determination of administrative completeness or a statement of administrative deficiencies to the applicant in writing within 24 days of the date a Grant of Environmental Restriction application is received at the appropriate Department office or on the day following the day the Grant of Environmental Restriction application fee is received, whichever occurs later. If the application is not complete, the Department shall identify the information necessary to complete the application in the statement of administrative deficiencies.

2. Second Administrative Completeness Review (AC-2). If the Department issues a statement of administrative deficiencies, a second Administrative Completeness Review, AC-2, shall be conducted upon submittal of additional information by the applicant. Such AC-2 review shall be conducted in accordance with the following requirements:
a. If the Department issues a statement of administrative deficiencies, the Department shall have an additional 24 days for a second Administrative Completeness Review, AC-2, beginning the day after receipt of material submitted by the applicant in response to the statement of administrative deficiencies issued in AC-1.

b. The Department may request additional information during the course of AC-2 review.

c. The AC-2 review shall result in a determination of administrative completeness or a denial of the permit application.

d. A denial of the permit application shall be subject to appeal in accordance with 310 CMR 40.0050, provided that in any adjudicatory hearing the issues shall be limited to the question of whether or not the application submitted was administratively complete. If the applicant prevails in such proceeding, the Department shall begin the next step of its review pursuant to the schedule for timely action.

3. Effect of Determination. A determination of administrative completeness shall not constitute any finding with respect to the technical suitability, adequacy or accuracy of the materials submitted, and shall be no bar to a request to amend, revise, replace, or supplement such materials based on technical suitability, adequacy or accuracy.

(c) Technical Review of Grant of Environmental Restriction Applications. The Department shall conduct a Technical Review of each Grant of Environmental Restriction application to ensure that it conforms to the requirements established herein for such instruments. This review shall ensure that:
1. the instrument provides adequate and appropriate identification of property subject to the Grant of Environmental Restriction;

2. the person granting the Grant of Environmental Restriction is the owner of record;

3. all prior interests in the Restricted Area have been subordinated; and

4. the activities to be restricted, permitted, performed, and conditioned are clearly specified.

(d) Procedures for Initial Technical Review (T-1).
1. An Initial Technical Review shall result in a decision to approve the Grant of Environmental Restriction, or in a statement of technical deficiencies in the application and supporting materials. The Department's decision to issue a statement of deficiencies shall not be deemed to give rise to any right to an adjudicatory hearing.

2. An initial T-1 review shall be conducted in accordance with the following requirements:
a. The Department may request additional information during the course of T-1 review.

b. A statement of technical deficiencies shall end the T-1 review period.

c. An applicant shall respond within 30 days of the date of issuance of a statement of technical deficiencies by submitting any additional material to support the application and address deficiencies.

3. If the applicant fails to respond to a statement of technical deficiencies, the application shall be reviewed on the record.

4. As established in 310 CMR 4.10(10)(g), and except as agreed pursuant to 310 CMR 40.1072(5)(a), the Department shall have 48 days to complete its T-1 review from the date of the Department's determination of administrative completeness.

(e) Supplemental Technical Review (T-2).
1. The purpose of a supplemental technical review (T-2) is to allow the Department to review technical information submitted by the applicant in response to a statement of technical deficiencies issued in T-1.

2. A T-2 review shall result in a decision to approve or disapprove a Grant of Environmental Restriction.

3. Except as agreed pursuant to 310 CMR 40.1072(5)(a), the Department shall have an additional 36 days for a T-2 review from the day after the receipt of material submitted by the applicant in response to a statement of technical deficiency.

4. The Department may request more information at any time during the T-2 review.

(6) Approvals of Grants of Environmental Restrictions.

(a) For each application for a Grant of Environmental Restriction, the Department shall prepare a statement specifying that the application is approvable, or, as appropriate, a statement describing the basis for disapproving the application.

(b) The Department's review shall be limited to determining whether the proposed Grant of Environmental Restriction meets the requirements of 310 CMR 40.1071.

(c) The Department's review shall not encompass issues concerning the adequacy of response actions at the subject disposal site (including whether the release and any associated risks have been adequately characterized, and whether the Activity and Use Limitation Opinion provides an adequate basis for a finding that a level of No Significant Risk exists or has been achieved) or that substantial hazards have been eliminated.

(d) The Department may disapprove an application for a Grant of Environmental Restriction if it determines that:
1. the application does not provide adequate and appropriate identification of the property to be subject to the Grant of Environmental Restriction;

2. the person granting the Grant of Environmental Restriction is not the owner of record;

3. all prior interests in the Restricted Area have not been subordinated;

4. the activities to be restricted, permitted, performed, and conditioned are not clearly specified; or

5. the application is not completed by an applicable deadline, or contains information which the applicant reasonably knew or should have known was false or misleading.

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