Current through Register 1531, September 27, 2024
The provisions set forth in 310 CMR 40.1220 and
310
CMR 40.1221 shall govern the Commonwealth's
recovery of Response Action Costs incurred pursuant to this Contingency
Plan.
(1)
Response Action
Costs. Response Action Costs with regard to a specific site shall
be calculated so as to reflect the actual cost of the Department's response
actions. Such Costs shall be calculated as follows:
(a) The total number of Direct Hours expended
by each employee of the Department with regard to a specific site shall be
multiplied by the employee's hourly rate, and then the figures derived for each
Department employee shall be added together;
(b) To the figure derived in 310 CMR
40.1220(1)(a) shall be added a figure derived by multiplying the total number
of Direct Hours expended by all employees of the Department with regard to a
specific site by the current Indirect Rate, which shall be calculated in
accordance with
310
CMR 40.1221; and
(c) All payments made by the Department to
its Contractors, grantees or agents to plan, manage, direct or perform response
actions with regard to a specific site shall be added to the figure derived
pursuant to 310 CMR 40.1220(1)(a) and (b).
(2)
Recovery and
Demand.
(a) The Department may
seek to recover Response Action Costs calculated pursuant to 310 CMR
40.1220(1), using any of the means described in M.G.L. c. 21E,
310
CMR 40.0000, or other applicable law. Any
recovery of Costs by the Department shall not prevent the Department from
incurring and recovering additional Response Action Costs.
(b) The Department may make written demand
for Response Action Costs with regard to a specific site to all RPs, PRPs and
Other Persons after such costs have been calculated pursuant to 310 CMR
40.1220(1), and periodically thereafter.
(3)
Administrative
Review.
(a) The Department may,
in its sole discretion, provide an opportunity for an informal conference to
any person to whom the Department has made a demand for payment of Response
Action Costs and who disputes the calculation or reasonableness of those Costs.
Such review may provide an opportunity to present, at a minimum, written
information regarding a disputed demand to the Department for its
consideration.
(b) The Department
may impose reasonable time limits within which any person to whom the
Department has made a demand for payment may request such administrative
review.
(c) An administrative
review pursuant to 310 CMR 40.1220(3) shall not be construed to be an
"adjudicatory proceeding" as defined by M.G.L. c. 21E or M.G.L. c. 30A and
shall not be subject to
310 CMR
1.00: Adjudicatory Proceedings. Any
conclusions reached by the Department as part of such review shall not be
construed to be an order pursuant to M.G.L. c. 21E, §§ 9 or 10,
unless the Department specifically and in writing states otherwise.
(4)
Interest
Calculation. The Department shall seek to recover interest accrued
on uncollected Response Action Costs at a rate of 1% per month, or 12% per
year, commencing 45 days after the Department has made written request for
payment of Costs. The Department shall compound the interest annually until the
debt is paid or otherwise resolved. The Department may elect not to seek
interest that accrues during an administrative review pursuant to 310 CMR
40.1220(3).
(5)
Treble
Costs.
(a) The Department may
seek to recover from RPs and/or PRPs up to three times the Response Action
Costs calculated pursuant to 310 CMR 40.1220(1), in accordance with M.G.L. c.
21E, § 5(e).
(b) The
Department, in its sole discretion, may elect not to seek treble costs from RPs
and/or PRPs who pay Response Action Costs after demand is made pursuant to 310
CMR 40.1220(2)(b).
(6)
Using Consent Orders to Set a Maximum for Response Action Costs to
Be Recovered. The Department may enter into an administrative
consent order with RPs, PRPs or Other Persons governing response actions at a
site pursuant to M.G.L. c. 21E, §§ 9 or 10. If the Department is able
to estimate future Response Action Costs at a disposal site with a reasonable
degree of certainty, the Department may, in its sole discretion and subject to
terms and conditions, agree as a part of such consent order upon an amount
which shall be the maximum Response Action Cost the Department will seek to
recover from such RPs, PRPs or Other Persons for work to be performed pursuant
to the provisions of that consent order.
