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 40.1074 - Notice of Activity and Use Limitation
Universal Citation: 310 CMR 40.0000 MA Code of Regs 40.1074
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 Notice of Activity and Use Limitation has been selected as a form of Activity and Use Limitation pursuant to 310 CMR 40.1070, the following requirements shall be met:
(a) a Notice of Activity and Use
Limitation shall include all of the information specified in 310 CMR 40.1074(2)
and be fully documented using Form 1075 set forth in
310
CMR 40.1099;
(b) the Activities and Uses, and obligations
and conditions specified in a Notice of Activity and U se Limitation to
maintain a level of No Significant Risk or No Substantial Hazard, shall be
established in accordance with
310
CMR 40.0900 and
310
CMR 40.1012;
(c) a Notice of Activity and Use Limitation
shall be recorded and/or registered as specified in 310 CMR
40.1074(3);
(d) Prior to the
recording and/or registration of a Notice of Activity and Use Limitation
pursuant to 310 CMR 40.1074(3), current holders of any record interest(s) in
the area subject to the proposed Notice (including without limitation, owners,
lessees, tenants, mortgagees, and holders of easements or licenses) shall be
notified by certified mail, return receipt requested, of the existence and
location of oil and/or hazardous material within such area and the terms of
such proposed Notice. Such proposed Notice of Activity and Use Limitation shall
not be recorded and/or registered until at least 30 days after such
notification of current record interest holders has occurred, unless all
parties receiving such notification provide a written waiver of the 30-day
waiting period to the property owner;
(e) the person(s) signing the Notice of
Activity and Use Limitation shall submit a statement, on a form prescribed by
the Department, certifying that:
1. the
person(s) or entity identified as the property owner(s) on the Notice owned the
property at the time the Notice was recorded and/or registered pursuant to 310
CMR 40.1074(3); and
2. record
interest-holders were notified of the proposed Notice pursuant to 310 CMR
40.1074(1)(d);
(2) Contents of a Notice of Activity and Use Limitation. A Notice of Activity and Use Limitation shall be documented on Form 1075 or, in the case of CERCLA sites, on a form developed and approved by the Department, and shall contain the following information:
(a) the location of the
property, including:
1. the property's street
address;
2. a metes and bounds
description of the parcel(s) of land which contain(s) the area that is subject
to the Notice of Activity and Use Limitation;
3. a reference to a survey plan of the
parcel(s) of land which contain(s) the area that is subject to the Notice of
Activity and Use Limitation, prepared by a Massachusetts Registered Land
Surveyor, that has been recorded as a plan with the appropriate registry of
deeds and/or a Land Court Plan;
4.
if the area subject to the Notice of Activity and Use Limitation comprises only
a portion of the property described in 310 CMR 40.1074(2)(a)2., a metes and
bounds description of the portion subject to the Notice of Activity and Use
Limitation; 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 portion subject to the Notice
of Activity and Use Limitation, attached as an exhibit to the Notice of
Activity and Use Limitation; or
b.
(for unregistered land only) a reference to a survey plan of the portion
subject to the Notice of Activity and Use Limitation, prepared by a
Massachusetts Registered Land Surveyor, that has been recorded as a plan with
the appropriate registry of deeds; and
5. an 81/2" x 11" sketch plan, attached
as an exhibit to the Notice of Activity and Use Limitation, showing the
location of the portion subject to the Notice of Activity and Use Limitation in
relation to the boundaries of the disposal site to the extent that the
boundaries of the disposal site have been established, the property boundaries,
and the location of any Engineered Barriers, permanent caps, Active Exposure
Pathway Mitigation Measures or other barriers or systems that are subject to
the Obligations and Conditions and other provisions of the Notice of Activity
and Use Limitation;
(b)
name(s) of the property owner(s);
(c) if a person(s) signing the Notice of
Activity and Use Limitation 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 Notice of Activity and Use Limitation has the
authority to sign such document shall be attached as an exhibit to the Notice
of Activity and Use Limitation. 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 Notice of Activity and Use Limitation on behalf of the
corporation held his or her position as of the date of the Notice of Activity
and Use Limitation; or
2. unless
the person(s) signing the Notice of Activity and Use Limitation 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 bylaw authorizing the person(s) to
do so;
(d) the disposal
site name and DEP Release Tracking Number(s);
(e) a statement that specifies why the Notice
of Activity and Use Limitation is appropriate to maintain a Permanent Solution
and condition of No Significant Risk or maintain a Temporary Solution and
condition of No Substantial Hazard;
(f) a concise summary of the oil and/or
hazardous material release event(s) or site history (i.e.,
date of the release(s), to the extent known, release volumes(s), and response
actions taken to address the release(s)) that resulted in the contaminated
media subject to the Notice of Activity and Use Limitation;
(g) a description of the contaminated media
(i.e., media type(s), contaminant type(s), approximate
vertical and horizontal extent)) subject to the Notice of Activity and Use
Limitation;
(h) a description of
the Site Activities and Uses that are consistent with maintaining a Permanent
Solution and condition of No Significant Risk or maintaining a Temporary
Solution and condition of No Substantial Hazard with respect to exposures to
oil and/or hazardous material including, but not limited to, emergency
excavation and repair of existing subsurface utilities, specific provisions for
non-emergency excavation, and specific types of land uses and
activities;
(i) a description of
the Site Activities and Uses that are inconsistent with maintaining a Permanent
Solution and condition of No Significant Risk or maintaining a Temporary
Solution and condition of No Substantial Hazard with respect to exposures to
oil and/or hazardous material;
(j)
a description of the obligations and/or conditions that are necessary to meet
the objectives of the Notice of Activity and Use Limitation including, but not
limited to, the type and frequency of activities for the inspection and
maintenance of, as applicable, barriers, Engineered Barriers, and Exposure
Pathway Mitigation Measures, and, pursuant to
310
CMR 40.1025, the type and frequency of
activities for the inspection, operation, maintenance of an Active Exposure
Pathway Mitigation Measure and the requirements for remote monitoring and
notification;
(k) an agreement to
reference this Notice in all future deeds, easements, mortgages, leases,
licenses, occupancy agreements, or any other instruments which convey an
interest in and/or a right to use the property subject to the Notice of
Activity and Use Limitation;
(l)
reference to procedures to be followed to ensure that changes in the
inconsistent and/or consistent activities and/or uses meet the objectives of
the Notice of Activity and Use Limitation; and
(m) the notarized signature(s) of the
property owner(s), and the notarized signature and seal of the LSP of Record
who certifies that in [his] [her] Opinion the Notice of Activity and Use
Limitation is consistent with a Permanent Solution or a Temporary
Solution.
(3) Recording/Registering Notices. The property owner shall record and/or register any Notice of Activity and Use Limitation in the appropriate Registry of Deeds and/or Land Registration Office.
(4) Filing with the Department. Within 30 days of recording and/or registering any Notice of Activity and Use Limitation, the property owner shall submit the following to the Department:
(a) a Registry
copy of the Notice bearing the book and page/instrument number and/or document
number; and
(b) a Registry copy of
the required survey plan(s) referenced in the Notice, bearing the plan
book/plan number(s).
(5) Incorporation into Instruments of Transfer. Upon transfer of any interest in and/or a right to use the property or a portion thereof that is subject to a Notice of Activity and Use Limitation, the Notice of Activity and Use Limitation shall be incorporated either in full or by reference into all future deeds, easements, mortgages, leases, licenses, occupancy agreements or any other instrument of transfer. Within 30 days of recording or registering a deed conveying record title for a property which is subject in whole or in part to a Notice of Activity and Use Limitation, a copy of such deed containing said reference shall be submitted to the Department. This obligation shall attach both to the grantor and the grantee on such deed, provided that submission of such copy to the Department by either the grantor or the grantee shall satisfy this obligation for both of them.
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