Code of Massachusetts Regulations
310 CMR - DEPARTMENT OF ENVIRONMENTAL PROTECTION
Title 310 CMR 40.0000 - Massachusetts Contingency Plan
Subpart N - PUBLIC INVOLVEMENT AND TECHNICAL ASSISTANCE GRANTS
Section 40.1403 - Minimum Public Involvement Activities in Response Actions

Universal Citation: 310 CMR 40.0000 MA Code of Regs 40.1403

Current through Register 1531, September 27, 2024

(1) Public Involvement Activities undertaken at all disposal sites are those designed primarily to provide the public with information regarding the risks posed by the disposal site, status of response actions, availability of technical assistance grants, and opportunities for public involvement.

(2) At a minimum, the following procedures shall be followed for written and public notices required under 310 CMR 40.1400:

(a) written notices shall be made either by hand-delivery, first-class mail, or upon agreement by the intended recipient of such notice, by electronic mail, and the date of notification shall be:
1. if served by hand, the date when delivered:
a. personally to the intended recipient;

b. personally to any officer, employee, or agent of the intended recipient authorized by appointment of the intended recipient or by law to accept service; or

c. to an adult member of the intended recipient's household.

2. if served by mail, the date of the postmark; and

3. if made by electronic mail, the date of receipt shall be the date that such electronic mail message was sent and successfully delivered;

(b) public notices shall be made in a newspaper of general circulation in the community(ies) in which the disposal site is located and in newspapers of general circulation in other communities which are, or are likely to be, affected by the disposal sites by:
1. publishing an advertisement in the local news section; or

2. publishing a legal notice, if the cost of an advertisement of comparable size in the local news section exceeds the cost of a legal notice by 20% or more, or if the newspaper refuses to publish the notices as an advertisement;

(c) except as otherwise provided in 310 CMR 40.1400, a copy of each written notice made shall be concurrently submitted to the Department; and

(d) except as provided in 310 CMR 40.0062(5) or 310 CMR 40.1403(7)(b)2., a copy of each public notice as published in each newspaper containing the date of publication and name of the newspaper shall be submitted to the Department within 30 days of the date of publication.

(3) At any time after the Department has been notified of a release or threat of release pursuant to 310 CMR 40.0300, the Chief Municipal Officer and Board of Health in the community(ies) in which the disposal site is located and in any other communities which are, or are likely to be, affected by the disposal site shall be provided written notice by the person conducting response actions of:

(a) the purpose, nature and expected duration of any field work related to the response action involving the implementation of Phase IV remedial actions pursuant to 310 CMR 40.0870; the use of respirators and other protective clothing (Level A, B or C as defined by "Standard Operating Safety Guides" published by the U.S. Environmental Protection Agency); or any sampling involving private drinking water supply wells, indoor air or surficial soils at any residential property at, adjacent to, or down-gradient from any contamination or suspected contamination from a release or threat of release.
1. Notification shall be made at least three days prior to the commencement of such field work.

2. Notification shall be based on plans for the field work, including the expected level of protection for site workers. If the level of protection for site workers is upgraded during the course of the work to Level C or above, the Chief Municipal Officer and Board of Health shall be notified of the upgrade as soon as is practicable.

3. Notification of field work is not required for Immediate Response Actions undertaken to address releases of oil and/or hazardous material as defined in 310 CMR 40.0311(1) through (9), or when advance notice for these actions is provided pursuant to 310 CMR 40.1403(3)(b) and (d);

(b) the implementation of any Immediate Response Action taken to prevent, control, abate or eliminate an Imminent Hazard as required in 310 CMR 40.0322 and 310 CMR 40.0426 or to address a Critical Exposure Pathway as defined in 310 CMR 40.0006.
1. Notification shall include information about the purpose, nature and expected duration of the Immediate Response Action.

2. Notification shall be made as soon as feasible, but in all cases notification shall be made no later than 48 hours following implementation of the Immediate Response Action;

(c) the availability of all Completion Statements required for Immediate Response Actions taken to prevent, control, abate or eliminate Imminent Hazards pursuant to 310 CMR 40.0427.
1. Notification may take the form of copies of correspondence which contain or summarize the Completion Statement, or a notice of the availability of the Completion Statement.

2. Notification shall include information about how local officials may obtain a copy of the Completion Statement from the person(s) conducting response actions.

(d) the implementation of any Release Abatement Measure.
1. Notification shall include information about the purpose, nature and expected duration of the Release Abatement Measure.

2. Except as provided at 310 CMR 40.1403(3)(d)3., notification shall be made within the 20 days prior to the implementation of the Release Abatement Measure Plan.

3. In the event that a removal action initiated as a Limited Removal Action is continued as a Release Abatement Measure pursuant to 310 CMR 40.0318(9)(b), notification shall be made on the same date that the complete RAM Plan is submitted to the Department pursuant to 310 CMR 40.0443.

(e) the availability of the Phase I Initial Site Investigation Report required pursuant to 310 CMR 40.0480, and each subsequent Phase Report required pursuant to 310 CMR 40.0800. Notification shall take the form of a copy of the summary of findings and statement of conclusions, as provided in 310 CMR 40.0483(h), 40.0835(4)(i), 40.0852(5), or for Phase IV, a copy of the description of the Comprehensive Remedial Action provided in the Remedy Implementation Plan pursuant to 310 CMR 40.0874(3)(b)5. and 310 CMR 40.0874(3)(b)10., or for Phase V, a copy of the Phase V Completion Statement Form, and shall include information about how local officials may obtain a copy of the Report from the person(s) conducting response actions.

(f) the availability of any Permanent or Temporary Solution Statements filed pursuant to 310 CMR 40.1000.
1. Notification may take the form of copies of correspondence which contain or summarize decisions regarding the Statement or a notice of the availability of the Statement.

2. Notification shall include information about how local officials may obtain a copy of the Statement from the person(s) conducting response actions.

(g) the availability of any Downgradient Property Status Submittal and/or modification of Downgradient Property Status Submittal provided to the Department pursuant to 310 CMR 40.0180. Notification shall include information about how local officials may obtain a full copy of the Downgradient Property Status Submittal and/or Modification of Downgradient Property Status Submittal from the person(s) conducting response actions.

(h) the submittal of a Release Notification Form to the Department pursuant to 310 CMR 40.0371.
1. Notification shall consist of a written notice pursuant to 310 CMR 40.1403(2)(a) that includes:
a. a copy of the Release Notification Form; and

b. a statement of the local officials' right to request additional Public Involvement Activities under 310 CMR 40.1403(9) and upon tier classification under 310 CMR 40.1404.

2. Notification shall be provided no later than seven days after sending the Release Notification Form to the Department pursuant to 310 CMR 40.0371.

(i) additional remedial actions conducted as part of an Audit Follow-up Plan pursuant to 310 CMR 40.1160.

(4) Notifications required by 310 CMR 40.1403(3)(a), (b), and (d) may be made orally or in writing. Notifications required by 310 CMR 40.1403(3)(c), (e), (f) and (g) shall be made in writing.

(a) Oral notifications shall be followed by written notice within seven days of the oral notification.

(b) A copy of each written notice shall be submitted to the Department concurrently with its filing with the Chief Municipal Officer and Board of Health.

(5) When issues of public safety are involved at a disposal site, the Fire and Police Chief in the community(ies) in which the disposal site is located and in any other communities which are, or are likely to be, affected by the disposal site shall be notified about any threat to public safety prior to the implementation of remedial actions, unless prior notification is impracticable.

(6) Following Tier Classification or reclassification pursuant to 310 CMR 40.0510 or 310 CMR 40.0530, respectively, the person(s) conducting response actions shall undertake the following actions to inform the public about the status of the disposal site's classification:

(a) within seven days of filing a Tier Classification Submittal, a public notice pursuant to 310 CMR 40.1403(2)(b) which indicates the classification or reclassification of the disposal site shall be published in a form established by the Department for such purpose and shall include:
1. a statement of the Public Involvement Activities available under 310 CMR 40.1403(9) and 310 CMR 40.1404; and

2. contact information for the person(s) conducting response actions, including the person's name, address, and telephone number;

(b) at least three days prior to publication of the public notice specified in 310 CMR 40.1403(6)(a), a written notice pursuant to 310 CMR 40.1403(2)(a) shall be sent to the Chief Municipal Officer(s) and the Board(s) of Health in the community(ies) in which the disposal site is located and in any other communities which are, or are likely to be, affected by the disposal site, and shall include:
1. a copy of the public notice;

2. a copy of the disposal site map included in the Phase I Report pursuant to 310 CMR 40.0483(1)(b) or as updated, where applicable, upon reclassification; and

3. information regarding the availability of:
a. for an initial Tier Classification, the Phase I Report pursuant to 310 CMR 40.1403(3)(e); and

b. for an initial Tier Classification or reclassification, documentation in support of the LSP Opinion classifying the disposal site as Tier I or Tier II; and

(c) the requirements of 310 CMR 40.1403(6) do not apply to Tier Classification Extension or Tier Classification Transfer Submittals pursuant to 310 CMR 40.0560(7) and (8), respectively.

(7) Within 30 days after recording and/or registering any original, amended, released or terminated Activity and Use Limitation pursuant to 310 CMR 40.1070 through 310 CMR 40.1080, the following requirements shall be met to inform local officials and the public of the limitations which apply to activities and/or uses of the property subject to the Activity and Use Limitation:

(a) a copy of the recorded and/or registered Activity and Use Limitation shall be provided to:
1. the Chief Municipal Officer;

2. the Board of Health;

3. the Zoning Official; and

4. the Building Code Enforcement Official in the community(ies) in which the property subject to such Activity and Use Restriction is located.

(b) a public notice pursuant to 310 CMR 40.1403(2)(b) which indicates the recording and/or registering of the original, amended, released or terminated Activity and Use Limitation shall be published in a newspaper that circulates in the community(ies) in which the property subject to the Activity and Use Limitation is located.
1. This notice shall be in a form established by the Department for such purpose and shall include, but not be limited to:
a. the name, address, and Release Tracking Number(s) of the disposal site associated with the Activity and Use Limitation;

b. the type of Activity and Use Limitation;

c. information about where the Activity and Use Limitation instrument and disposal site file can be reviewed; and

d. the name, address and telephone number of the person recording and/or registering the Activity and Use Limitation from whom the public can obtain additional information.

2. A copy of this public notice shall be submitted to the Department within seven days of its publication.

(8) For any disposal site where the Permanent Solution relies on the exception provided by 310 CMR 40.1013(1)(c) from requirements for an Activity and Use Limitation, a copy of the Permanent Solution Statement shall be filed with the following offices:

(a) where a public way is part of the disposal site, the public agency(ies) owning and operating that public way;

(b) where a Rail Right-of-way is part of the disposal site, the owner and operator of the rail line. For Rail Rights-of-way subject to the requirements of M.G.L. c. 161C, a copy of the Permanent Solution Statement shall also be filed with the Massachusetts Department of Transportation; and

(c) the notifications required by 310 CMR 40.1403(8)(a) and (b) shall be made concurrently with the notification to local officials of the availability of Permanent Solution Statements pursuant to 310 CMR 40.1403(3)(f).

(9) Local officials or ten or more residents of a community(ies) in which a disposal site is located or in any other communities which are, or are likely to be, affected by a disposal site may request an opportunity for Public Involvement Activities related to any Immediate Response Action conducted pursuant to 310 CMR 40.0410 or Release Abatement Measure conducted pursuant to 310 CMR 40.0440. Such request shall be made in writing to the person(s) conducting the response actions and copied concurrently to the Department.

(a) Following the receipt of such written request, the person(s) conducting response actions shall, at a minimum:
1. contact the people making the request and appropriate local officials to identify their concerns about the response action;

2. provide information to those making the request about the nature and extent of contamination (to the extent known at the time) and about implemented and planned response actions;

3. provide appropriate opportunities for public comment which may include, but are not limited to, holding a public meeting or providing an opportunity for the public to submit written comments to the person(s) conducting response actions; and

4. establish a public information repository in the community(ies) in which the disposal site is located or in any other community(ies) that is, or is likely to be, affected by the disposal site;

(b) when holding a public meeting in response to a request for Public Involvement Activities, the person(s) conducting response actions shall hold such meeting at a time and place convenient to the people requesting the opportunity for comment, and shall publicize the meeting in advance in such community and by providing written notice pursuant to 310 CMR 40.1403(2)(a) to the persons requesting the Public Involvement Activities and appropriate local officials.

(c) when providing the opportunity to the public to submit written comments, the person(s) conducting response actions shall:
1. notify the persons requesting the Public Involvement Activities and appropriate local officials using a written notice pursuant to 310 CMR 40.1403(2)(a);

2. provide a public comment period of a minimum of 20 days from the date of notification of the Immediate Response Actions or Release Abatement Measures;

3. consider and, where relevant and appropriate, incorporate comments into plans for response actions;

4. prepare a written summary of and response to relevant comments within 30 days of the last day of the public comment period, unless an alternative procedure for summarizing comments is agreed to by the person(s) conducting response action(s) and the persons requesting Public Involvement Activities; and

5. include the written summary of and response to comments in the next related response action submittal to the Department and place it in the public information repository;

(d) Notwithstanding the provisions of 310 CMR 40.1403(9), nothing shall prohibit:
1. person(s) conducting response actions and the persons who requested Public Involvement Activities from agreeing to Public Involvement Activities or procedures for providing public comment on response action submittals in addition to or in lieu of those specified in 310 CMR 40.1403(9)(b) or (c); or

2. persons from petitioning for the designation of the disposal site where Public Involvement Activities are being conducted pursuant to 310 CMR 40.1403(9) as a Public Involvement Plan Site pursuant to 310 CMR 40.1404;

(e) The public involvement opportunities provided pursuant to 310 CMR 40.1400 shall not unreasonably delay implementation of response actions at the disposal site;

(f) Assessment may proceed during the public comment period;

(g) Except as provided in 310 CMR 40.1403(9)(h), remedial actions that are the subject of the public comment period shall not proceed until the close of the public comment period;

(h) Time critical elements of an Immediate Response Action Plan may be conducted prior to the close of the public comment period if delaying the remedial actions would exacerbate release or site conditions or endanger health, safety, public welfare or the environment; and

(i) Unless otherwise specified by the Department, the public involvement provisions of 310 CMR 40.1403(9) shall not apply to Release Abatement Measures conducted pursuant to 310 CMR 40.1067 after a valid Permanent Solution Statement has been submitted to the Department.

(10) Any time environmental samples are taken at a property in the course of investigating a release for which a notification to the Department pursuant to 310 CMR 40.0300 has been made on behalf of someone other than the owner of the property, the person(s) conducting the response actions shall:

(a) provide the property owner with a written notice pursuant to 310 CMR 40.1403(2)(a) on a form established by the Department for such purpose which explains that the property owner will be provided the results of the sample analyses; such written notice shall be provided to the property owner:
1. as soon as possible, but no more than seven days after the date of sampling, when conducted as part of an Immediate Response Action to address releases defined at 310 CMR 40.0311; or

2. prior to the date of sampling when conducted as part of any other response action;

(b) within 30 days of the date the sample results are issued by the laboratory, provide the property owner with:
1. the results of the sample analyses of samples from the property owner's property and a written notice that additional documentation associated with the samples, such as that listed at 310 CMR 40.0017(3), will be provided to the property owner within 30 days of receipt of a request for such documentation. The person providing written notice shall provide such additional documentation to the property owner within 30 days of receipt of a request;

2. a statement that public involvement opportunities are available under 310 CMR 40.1403(9) and, if the site is tier classified, under 310 CMR 40.1404;

(c) provide to the Department with the next required MCP submittal the results of and additional documentation associated with any sampling subject to the notice requirements of 310 CMR 40.1403(10), a copy of the written notice required by 310 CMR 40.1403(10)(a), and a copy of any alternative schedule for providing sampling results established pursuant to 310 CMR 40.1403(10)(d); and

(d) Notwithstanding the provisions at 310 CMR 40.1403(10)(b), when sampling at a property will occur on an ongoing basis, an alternative schedule may be established for providing the results of multiple sampling events to a property owner, provided that such schedule is established in writing and agreed to by the property owner. The person(s) conducting the response actions shall include with the results of the sample analyses a written notice that additional documentation associated with the samples, such as that listed at 310 CMR 40.0017(3), will be provided to the property owner within 30 days of receipt of a request for such documentation. The person providing written notice shall provide such additional documentation to the property owner within 30 days of receipt of a request.

(11) Any person conducting an Immediate Response Action to prevent, control, or eliminate an Imminent Hazard pursuant to 310 CMR 40.0322 and 310 CMR 40.0426 or to address a Critical Exposure Pathway pursuant to 310 CMR 40.0414(3) through (4) shall provide notice as specified below of such response actions to owners and/or operators, where such owners and/or operators are not the party conducting the Immediate Response Action, and to persons who may experience significant health or safety impacts from the disposal site that is being addressed by the Immediate Response Action (i.e., Affected Individuals as defined in 310 CMR 40.0006).

(a) Unless otherwise specified by the Department, notification shall be made orally or in writing as soon as possible but not later than 3 business days after confirmation that an Imminent Hazard or Critical Exposure Pathway exists;

(b) Where initial notification is provided orally, it shall be followed by a written notice pursuant to 310 CMR 40.1403(2)(a) within seven days of the oral notification;

(c) Written notice shall be provided on a form established by the Department for such purpose that includes information about the purpose, nature and expected schedule for the commencement and duration of the Immediate Response Action, and a statement of the Public Involvement Activities available under 310 CMR 40.1403(9) and, if applicable, 310 CMR 40.1404;

(d) Where the Immediate Response Action involves assessment or remedial actions at a multi-unit or industrial or commercial building, in addition to notifying Affected Individuals, the owner and operator of the building shall ensure that the notice provided to them by the person conducting the Immediate Response Action is posted in a location(s) proximate to the area where the potential for exposure to OHM is most likely and where it will be visible to individuals who are routinely present in such location(s) for the duration of the Immediate Response Action;

(e) Upon completion of the Immediate Response Action conducted to prevent, control, or eliminate an Imminent Hazard or to address a Critical Exposure Pathway, the person conducting the Immediate Response Action shall, concurrently with submitting the Immediate Response Action Completion Statement to the Department, provide those same owners and/or operators and Affected Individuals for whom notification pursuant to 310 CMR 40.1403(11)(a) through (d) was required with a written notice on a form established by the Department for such purpose pursuant to 310 CMR 40.1403(2)(a) that includes a copy of the Immediate Response Action Completion Statement; and

(f) A copy of the written notice required by:
1.310 CMR 40.1403(11)(c) shall be submitted to the Department with the Immediate Response Action Status Report that follows the commencement of the Immediate Response Action, unless an Immediate Response Action Completion Statement is submitted prior to the date such Status Report is due, in which case the notice shall be submitted with the Immediate Response Action Completion Statement;

2.310 CMR 40.1403(11)(e) shall be submitted to the Department with the Immediate Response Action Completion Statement.

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