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 40.1081 - Amendment of Activity and Use Limitations

Universal Citation: 310 CMR 40.0000 MA Code of Regs 40.1081

Current through Register 1531, September 27, 2024

(1) An Activity and Use Limitation shall be amended where pursuant to the LSP Opinion required by 310 CMR 40.1080 such amendment of an Activity and Use Limitation is deemed necessary to meet the objectives of the Activity and Use Limitation (e.g., either to maintain a level of No Significant Risk, or No Substantial Hazard for the new or altered Site Activities and Uses).

(2) An Activity and Use Limitation may also be amended to expand or reduce the list(s) of restricted and/or permitted Site Activities and Uses, and obligations and/or conditions listed therein based on changed circumstances or other grounds.

(3) Amending a Grant of Environmental Restriction. Grant of Environmental Restriction shall be amended in accordance with the following:

(a) an Amendment to Grant of Environmental Restriction shall be prepared using Form 1082A set forth in 310 CMR 40.1099;

(b) if a person(s) signing the Amendment to 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 of the person(s) signatory authority, as described in 310 CMR 40.1071(2)(c), shall be submitted as an exhibit to the Amendment to Grant of Environmental Restriction;

(c) the Amendment to Grant of Environmental Restriction shall be submitted to the Department for the Commissioner's signature, with a certification of title issued to the Department certifying title in the Grantor and including all encumbrances of record, any necessary subordination agreements, the Activity and Use Limitation Opinion required by 310 CMR 40.1081(1) and the applicable fee pursuant to 310 CMR 4.00;

(d) the Amendment to Grant of Environmental Restriction shall be recorded and/or registered by the property owner at the appropriate Registry(ies) of Deeds and/or Land Registration Office(s) within 30 days of the property owner's receipt from the Department of the amendment as approved by the Commissioner;

(e) local officials and the public shall be informed of the Amendment to Grant of Environmental Restriction pursuant to 310 CMR 40.1403(7); and

(f) within 30 days of recording and/or registering any Amendment to Grant of Environmental Restriction, the property owner shall submit to the Department:
1. a certified Registry copy of the Amendment to Grant of Environmental Restriction bearing the book and page/instrument number and/or document number; and

2. If the property subject to the Grant of Environmental Restriction is unregistered land, a Registry copy of the Grant of Environmental Restriction being amended.

(4) Amending a Notice of Activity and Use Limitation. A Notice of Activity and Use Limitation shall be amended in accordance with the following:

(a) an Amendment to Notice of Activity and Use Limitation shall be prepared using the Form 1082B set forth in 310 CMR 40.1099;

(b) if a person(s) signing the Amendment to 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 of the person(s) signatory authority, as described in 310 CMR 40.1074(2)(c), shall be submitted as an exhibit to the Amendment to Notice of Activity and Use Limitation;

(c) prior to the recording and/or registration of an Amendment to Notice of Activity and U se Limitation pursuant to 310 CMR 40.1081(4) (d), current holders of any record interest(s) in the area subject to the proposed Amendment to Notice of Activity and Use Limitation (including without limitation, owners, lessees, tenants, mortgagees, and holders of easements or licenses) shall be notified by the property owner 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 Amendment to Notice of Activity and Use Limitation. Such proposed Amendment to 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;

(d) the property owner shall record and/or register any Amendment to Notice of Activity and Use Limitation in the appropriate Registry of Deeds and/or Land Registration Office;

(e) a Registry copy of the Amendment to Notice of Activity and Use Limitation shall be submitted to the Department with the LSP Opinion described in 310 CMR 40.1081(1);

(f) the person(s) signing the Amendment to 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 Amendment to Notice of Activity and Use Limitation owned the property at the time the Amendment to Notice of Activity and Use Limitation was recorded and/or registered pursuant to 310 CMR 40.1081(4)(d); and

2. record interest-holders were notified of the proposed Amendment to Notice of Activity and Use Limitation pursuant to 310 CMR 40.1081(4)(c);

(g) local officials and the public shall be informed of the Amendment to Notice of Activity and Use Limitation pursuant to 310 CMR 40.1403(7); and

(h) no later than 30 days after the recording and/or registration of the Amendment to Notice of Activity and Use Limitation, the following shall be submitted to the Department:
1. a Registry copy of the Amendment to Notice of Activity and U se Limitation bearing the book and page/instrument number and/or document number;

2. a Registry copy of the required survey plan(s) referenced in the Amendment to Notice of Activity and Use Limitation bearing the plan book/plan number(s); and

3. if the property subject to the Activity and Use Limitation is unregistered land, a Registry copy of the Notice of Activity and Use Limitation being amended.

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