Code of Massachusetts Regulations
310 CMR - DEPARTMENT OF ENVIRONMENTAL PROTECTION
Title 310 CMR 40.0000 - Massachusetts Contingency Plan
Subpart M - ADMINISTRATIVE RECORD
Section 40.1305 - Content of the Administrative Record

Universal Citation: 310 CMR 40.0000 MA Code of Regs 40.1305

Current through Register 1531, September 27, 2024

(1) The administrative record shall include those documents that form the basis for the Department's selection of a response action.

(2) The administrative record shall contain the following types of documents when such documents are material to the Department's selection of a response action:

(a) documents containing factual information and data, including documents containing analyses of such information and data;

(b) guidance documents, technical literature, and site-specific policy memoranda;

(c) documents received, published or made available to the public pursuant to 310 CMR 40.1400;

(d) documents setting forth and/or supporting determinations by the Department, including scopes of work, plans and reports; and

(e) copies of enforcement orders including, but not limited to, consent orders, and Notices of Noncompliance, Notices of Responsibility and Notices of Response Action.

(3) If the Department issues an administrative order pursuant to M.G.L. c. 21E, § 10(b)(1)(B), with respect to a disposal site for which the Department has elected to establish an administrative record in accordance with 310 CMR 40.1300, the Department shall include in the administrative record evidence of the following:

(a) that the disposal site has been listed in accordance with M.G.L. c. 21E, § 3A(b), and 310 CMR 40.0168;

(b) that the Department has given the person in question the opportunity to apply voluntarily for a permit or to carry out response actions at the disposal site; and

(c) that the Department has determined that it would be contrary to the public interest to defer necessary response actions, or to publicly fund response actions to avoid any such deferral, with respect to the disposal site.

(4) Documents Not Included in the Administrative Record. The Department is not required to include in the administrative record documents which do not form the basis for the selection of the response action.

(5) Information Protected from Disclosure.

(a) Any document, information or other thing which the Department determines to be a trade secret in accordance with 310 CMR 3.00: Access to and Confidentiality of Department Records and Files shall be maintained in the Confidential File of the administrative record and shall not be made available for public inspection, except as provided by 310 CMR 3.21: When Trade Secrets May Be Disclosed by the Department.

(b) Any document protected from disclosure under the Massachusetts Public Records Law, M.G.L. c. 66, § 10, or other applicable federal or state law may be maintained in the Confidential File of the administrative record and shall not be made available for public inspection, except as provided by 310 CMR 40.1305(6).

(c) Any document, or part thereof, containing privileged information, including documents subject to the attorney-client privilege, attorney work product and any other document to which a privilege attaches under applicable law, may be maintained in the Confidential File of the administrative record and shall not be made available for public inspection, except as provided by 310 CMR 40.1305(6).

(6) Confidential File. Except as provided by 310 CMR 40.1305(5)(a), if any document, or part thereof, that forms the basis for the selection of a response action is protected from disclosure pursuant to 310 CMR 40.1305(5), such document, to the extent practicable, shall be summarized in such a way as to render the document, or the material information included therein, available to the public. The summary document shall be placed in the publicly available portion of the administrative record. If the Department determines that it is not practicable to summarize the information protected from disclosure, and any other information in such a document forms the basis or a portion of the basis for the Department's selection of a response action, the information protected from disclosure shall be deleted therefrom, and the remaining portions of the document shall be included in the publicly available portion of the administrative record. Those parts of the document determined by the Department to be impracticable to summarize shall be placed in the Confidential File of the administrative record. Information in the Confidential File shall not be disclosed to any RP, PRP or the public, unless the Department expressly waives an applicable privilege or disclosure is otherwise authorized or required by applicable law or court order.

(7) General Index. The administrative record shall contain an index describing the various files included within the administrative record including, but not limited to, the Confidential File. The Department shall list separately each file included in the administrative record and shall include in such list a description of the documents within each file. Such files may include, without limitation, an Environmental Analyses File containing copies of the results of environmental sampling and analyses; a Correspondence File containing copies of pertinent letters and other correspondence; a Public Involvement File documenting Public Involvement Activities undertaken with respect to the disposal site; a Response Action File containing scopes of work, plans and reports regarding response actions at the disposal site; and a Contractor File containing copies of pertinent contracts, invoices and payments.

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