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 40.1073 - Environmental Restrictions for Disposal Sites Where the Department Conducts Response Actions

Universal Citation: 310 CMR 40.0000 MA Code of Regs 40.1073

Current through Register 1531, September 27, 2024

(1) The Department may impose Environmental Restrictions upon any disposal site for which the Department conducts a response action. Any Environmental Restriction imposed by the Department shall be recorded and/or registered in the appropriate Registry of Deeds and/or Land Registration Office.

(2) The Department may impose and record and/or register an Environmental Restriction if the property owner fails to record or register an Environmental Restriction in accordance with 310 CMR 40.1071, and may seek to recover the Costs thereof.

(3) In the event that the Department establishes an administrative record pursuant to 310 CMR 40.1300 for a response action that consists, in whole or in part, of the imposition of an Environmental Restriction by the Department, the Department shall include the Environmental Restriction in the administrative record.

(4) In the event that the Department does not establish an administrative record pursuant to 310 CMR 40.1300 for a response action that consists, in whole or in part, of the imposition of an Environmental Restriction by the Department, the Department shall provide to the following persons notice of such intent to impose an Environmental Restriction:

(a) any owner of the property whose name and address is known to the Department;

(b) any other person having a recorded or registered ownership interest in the property whose name and/or address is known to the Department;

(c) any person having an unrecorded or unregistered ownership interest in the property whose interest, name and address is known to the Department; and

(d) any person having an unrecorded or unregistered ownership interest in the property whose interest, name, and address is unknown to the Department.

(5) The notice required by 310 CMR 40.1073(4) shall include all of the following:

(a) a statement of the Department's statutory and regulatory authority to record, register or file the Environmental Restriction;

(b) a concise statement of the alleged factual and legal basis for the Environmental Restriction;

(c) a statement that a person having an ownership interest in the property has a right to an adjudicatory hearing on such Environmental Restriction; and

(d) a statement of the requirements that must be complied with by a person having an ownership interest in the property in order to avoid being deemed to have waived his or her right to an adjudicatory hearing.

(6) Each notice required by 310 CMR 40.1073(4)(a) shall be served by one or more of the following methods:

(a) service in hand at the person's last known address or at the last known address of any officer, employee, or agent of the person authorized by appointment of the person or by law to accept service;

(b) service in hand personally to the person, or to any officer, employee, or agent of the person authorized by appointment of the person or by law to accept service;

(c) by certified mail, return receipt requested, addressed to the person's last known address, or to the last known address of any officer, employee, or agent of the person authorized by appointment of the person or by law to accept service; or

(d) with respect to any person having an unrecorded or unregistered ownership interest in the property whose interest, name, or address is unknown to the Department, by publication in a newspaper of general circulation serving the community where the property is located.

(7) Subject to the provisions of 310 CMR 40.1073(8), in the event that the Department does not establish an administrative record pursuant to 310 CMR 40.1300, the following persons shall have the right to an adjudicatory hearing whenever the Department seeks to record and/or register an Environmental Restriction:

(a) any owner of the property;

(b) any other person having a recorded or registered ownership interest in the property; and

(c) any person having an unrecorded or unregistered ownership interest in the property.

(8) Any person who has a right to an adjudicatory hearing pursuant to 310 CMR 40.1073(7) shall be deemed to have waived the right to an adjudicatory hearing, unless the Department receives from such person a written statement that denies that the Department has a basis to record and/or register the Environmental Restriction, and does so subject to and in compliance with applicable provisions of 310 CMR 1.00: Adjudicatory Proceedings, within 21 days of the following:

(a) with respect to the notice required by 310 CMR 40.1073(4)(a), (b) or (c), the date of issuance of the notice in accordance with 310 CMR 40.1073(6)(a), (b) or (c); or

(b) with respect to the notice required by 310 CMR 40.1073(4)(d), the date of publication of the notice in accordance with 310 CMR 40.1073(6)(d).

(9) The Department shall not be required to prove any facts alleged by the Department in the notice required by 310 CMR 40.1073(4), unless such facts are expressly denied in the statement filed pursuant to 310 CMR 40.1073(8).

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