310 CMR, § 30.099 - Interim Status Facilities

(1) Qualifying for Interim Status.

(a) Any person who owns or operates an "existing hazardous waste management facility" or a facility in existence on the effective date of statutory or regulatory amendments under M.G.L. c. 21C that render the facility subject to the requirement to have a license pursuant to 310 CMR 30.800 shall have interim status to the extent the owner or operator has:

1. complied with the requirements of 310 CMR 30.060 pertaining to notification of hazardous waste activity; and

2. complied with the requirements of 310 CMR 30.099(2) governing submission of Part A applications.

(b) If the EPA has granted interim status prior to September 15, 1989, then such status shall continue until terminated pursuant to 310 CMR 30.099(12) or a determination or order of the Department.

(c) Failure to qualify for interim status. If the Department has reason to believe upon examination of a part A application that it fails to meet the requirements of 40 CFR § 270.13 as adopted and amended at 310 CMR 30.099(3), it shall notify the owner or operator in writing of the apparent deficiency. Such notice shall specify the grounds for the Department's belief that the application is deficient. The owner or operator shall have 30 days from receipt to respond to such a notification and to explain or cure the alleged deficiency in the part A application. If, after such notification and opportunity for response, the Department determines that the application is deficient it may take appropriate enforcement action.

(d)310 CMR 30.099 shall not apply to any facility which has been previously denied a RCRA permit or license or if authority to operate the facility under RCRA or M.G.L. c. 21C has been previously terminated.

(2) Submittal of Part A Applications.

(a) Owners and operators of an existing hazardous waste management facility or of a facility in existence on the effective date of statutory or regulatory amendments under M.G.L. c. 21C that render the facility subject to the requirement to have a license pursuant to 310 CMR 30.800 shall submit Part A of their license application no later than:

1. six months after the date of publication of regulations which first require them to comply with the standards set forth in 310 CMR 30.500 through 30.900, or

2. 30 days after the date they first become subject to the standards set forth in 310 CMR 30.500 through 900, whichever first occurs.

(b) Any person submitting a Part A application shall:

1. provide the Department with the information set forth in 40 CFR 270.13, as adopted at 310 CMR 30.099(3);

2. use the form prescribed by the Department; and

3. complete, sign and submit the application to the Department in compliance with 310 CMR 30.807.

(3) Content of a Part A Application. 40 CFR 270.13 is hereby incorporated by reference subject to the following additions, modifications, and exceptions:

(a) In 40 CFR 270.13(a), "permit, " is substituted with "license";

(b) In 40 CFR 270.13(j), the phrase "under 40 CFR part 261 " is hereby replaced with "in 310 CMR 30.100 "; and

(c) In 40 CFR 270.13(k)(9), the references to "permits" are hereby modified to reference "permits or licenses".

(4) Operation During Interim Status.

(a) Unless allowed under 310 CMR 30.099(5), during the interim status period the facility shall not:

1. treat, store, or dispose of hazardous waste not specified in the Part A license application;

2. employ processes not specified in Part A of the license application; or

3. exceed the design capacities specified in the Part A license application.

(b) During interim status, owners or operators shall comply with the interim status standards at 310 CMR 30.099, including the standards of 40 CFR part 265, as adopted and amended at 310 CMR 30.099(6).

(5) Changes During Interim Status.

(a) Except as provided in 310 CMR 30.099(5)(b), the owner or operator of an interim status facility may make the following changes at the facility:

1. Treatment, storage, or disposal of newly listed or identified hazardous wastes not previously identified in Part A of these license application (and addition of the units being used to treat, store, or dispose of these hazardous wastes on the effective date of the listing or identification) if the owner or operator submits a revised part A license application prior to such treatment, storage, or disposal;

2. Increases in the design capacity of processes used at the facility if the owner or operator submits a revised Part A license application prior to such a change (along with a justification explaining the need for the change) and the Department approves the changes because:

a. There is a lack of available treatment, storage, or disposal capacity at other hazardous waste management facilities, or

b. The change is necessary to comply with a Federal, State, or local requirement.

3. Changes in the processes for the treatment, storage, or disposal of hazardous waste or addition of processes if the owner or operator submits a revised Part A license application prior to such change (along with a justification explaining the need for the change) and the Department approves the change because:

a. The change is necessary to prevent a threat to public health, safety, welfare or the environment because of an emergency situation, or

b. The change is necessary to comply with a Federal, State, or local requirement.

4. Changes in the ownership or operational control of a facility if the new owner or operator submits a revised part A license application no later than 90 days prior to the scheduled change. When a transfer of operational control of a facility occurs, the old owner or operator shall comply with the requirements of 310 CMR 30.099(6)(c) (Financial Requirements for interim status facilities), until the new owner or operator has demonstrated to the Department that he is complying with the requirements of that subpart. The new owner or operator must demonstrate compliance with 310 CMR 30.099(6)(c) within six months of the date of the change in ownership or operational control of the facility. Upon demonstration to the Department by the new owner or operator of compliance with subpart H, the Department shall notify the old owner or operator in writing that he no longer needs to comply with subpart H as of the date of demonstration. All other interim status duties are transferred effective immediately upon the date of the change in ownership or operational control of the facility.

5. Changes made in accordance with an interim status corrective action order issued by EPA under section 3008(h) or other Federal authority, by an authorized State under comparable State authority, or by a court in a judicial action brought by EPA or by an authorized State. Changes pursuant to 310 CMR 30.099(5) are limited to the treatment, storage, or disposal of hazardous waste or constituents of hazardous waste from releases that originate within the boundary of the facility.

6. Addition of newly regulated units for the treatment, storage, or disposal of hazardous waste if the owner or operator submits a revised part A license application on or before the date on which the unit becomes subject to the new requirements.

(b) Except as specifically allowed pursuant to 310 CMR 30.099(5)(b), changes listed pursuant to 310 CMR 30.099(5)(a) may not be made if they amount to reconstruction of the hazardous waste management facility. Reconstruction occurs when the capital investment in the changes to the facility exceeds 50% of the capital cost of a comparable entirely new hazardous waste management facility. If all other requirements are met, the following changes may be made even if they amount to a reconstruction:

1. Changes made solely for the purposes of complying with the requirements of 310 CMR 30.694 for tanks and ancillary equipment.

2. If necessary to comply with Federal, State, or local requirements, changes to an existing unit, changes solely involving tanks or containers, or addition of replacement surface impoundments that satisfy the standards of RCRA § 3004(o).

3. Changes that are necessary to allow owners or operators to continue handling newly listed or identified hazardous wastes that have been treated, stored, or disposed of at the facility prior to the effective date of the rule establishing the new listing or identification.

4. Changes during closure of a facility or of a unit within a facility made in accordance with an approved closure plan.

5. Changes necessary to comply with an interim status corrective action order issued by EPA under § 3008(h) or other Federal authority, by corrective action undertaken pursuant to M.G.L. c. 21C or M.G.L. c. 21E, or by a court in a judicial proceeding brought by EPA or an authorized State, provided that such changes are limited to the treatment, storage, or disposal of hazardous waste or constituents of hazardous waste from releases that originate within the boundary of the facility.

6. Changes to treat or store, in tanks, containers or containment buildings, hazardous wastes subject to land disposal restrictions imposed by 310 CMR 30.750 or RCRA § 3004, provided that such changes are made solely for the purpose of complying with 310 CMR 30.750 or RCRA § 3004.

7. Addition of newly regulated units described in 310 CMR 30.099(5)(a)6.

8. Changes necessary to comply with standards under 40 CFR part 63, Subpart EEE-National Emission Standards for Hazardous Air Pollutants From Hazardous Waste Combustors.

(6) Until a final license decision takes effect pursuant to 310 CMR 30.838, an interim status facility shall at all times comply with each of the following:

(a) 310 CMR 30.502 through 310 CMR 30.579 subject to the following modifications:

1. In lieu of the specific licensed facility documentation requirements of 310 CMR 30.513(2)(a)5., the owner or operator of an interim status facility shall comply with the applicable Waste Analysis Plan requirements established pursuant to 310 CMR 30.099(6)(f) through (p) and 310 CMR 30.750.

2. In lieu of 310 CMR 30.542(2)(g), the following information shall be recorded, as it becomes available, and maintained in the operating record until closure of the facility, or for at least three years after the information is recorded in the operating record of the facility, whichever period is longer: Records and results of waste analysis, waste determinations, and trial tests performed as specified in 310 CMR 30.099(6)(f) through (p), and 310 CMR 30.750.

(b)40 CFR Part 265 Subpart G [Closure and Post-closure] subject to the following provisions:

1. The Department shall approve, modify, or disapprove a proposed closure plan within a reasonable time after its receipt by the Department. If the Department does not approve the plan, the Department shall provide the owner or operator with a detailed written statement of reasons for the Department's not approving the plan. Not later than 30 days after receiving said statement, the owner or operator shall submit a new or modified closure plan to the Department. Within a reasonable time after receiving said new or modified closure plan, the Department shall approve, modify, or disapprove it. If the Department modifies the plan, this modified plan (i.e. as modified by the Department) shall be the approved closure plan.

2. Such facility's closure plan shall describe how and when each hazardous waste management unit at the facility shall be closed during the facility's intended operating life, and how the facility as a whole shall be closed at the end of its intended operating life. The plan shall identify how the requirements of 40 CFR Subpart G, as adopted and amended at 310 CMR 30.099(6)(b), shall be complied with. The facility's closure plan need not describe when the facility as a whole shall be closed, except that the facility's closure plan shall describe when the facility as a whole shall be closed if:

a. the facility's closure plan has not been approved by the Department, or

b. the facility's remaining operating life is less than 20 years, and the facility is using a trust fund to demonstrate financial assurance for closure pursuant to 310 CMR 30.904.

3. An owner or operator who does not have an approved closure plan shall submit a closure plan to the Department and an owner or operator who is subject to post-closure requirements and who does not have an approved post-closure plan shall submit a post-closure plan to the Department, as follows:

a. at least 180 days prior to the date on which he or she expects to begin closure of the first surface impoundment, waste pile, land treatment unit, or landfill, or final closure of the facility if it involves such a unit, whichever is earlier; or

b. at least 45 days prior to the date on which he or she expects to begin final closure of a facility with only tanks, container storage, or incinerator units.

4. The date on which the owner or operator "expects to begin . . . closure" shall be no later than 30 days after the date on which any hazardous waste management unit receives the known final volume of hazardous waste.

5. An owner or operator with an approved closure plan shall notify the Department in writing:

a. at least 60 days prior to the date on which he or she expects to begin closure of a surface impoundment, waste pile, landfill, or land treatment unit, or final closure of a facility involving such a unit; or

b. at least 45 days prior to the date on which he or she expects to begin final closure of a facility with only tanks, container storage, or incinerator units.

6. The Department shall approve, modify, or disapprove a proposed post-closure plan within a reasonable time after its receipt by the Department. If the Department does not approve the plan, the Department shall provide the owner operator with a detailed written statement of reasons for the Department's not approving the plan. Not later than 30 days after receiving said statement, the owner or operator shall submit a new or modified post-closure plan to the Department. Within a reasonable time after receiving said new or modified post-closure plan, the Department shall approve, modify, or disapprove it. If the Department modifies the plan, this modified plan (i.e. as modified by the Department) shall be the approved post-closure plan.

7. For the purposes of groundwater monitoring during closure and post closure, the owner or operator of an interim status facility shall comply with all applicable provisions of 310 CMR 30.099(6)(d).

8. In lieu of 40 CFR 265.111, 265.114, 265.115, and 265.120, the requirements of 310 CMR 30.582: Closure Performance Standards, 30.585: Disposal or Decontamination of Equipment, 30.587(2) and (3): Completion and Certification of Closure, and 30.596(2) and (3): Completion and Certification of Post-closure Care shall apply.

(c) 310 CMR 30.900, provided that:

1. a surety bond guaranteeing performance of closure shall not be acceptable for the purpose of complying with 310 CMR 30.904, and

2. a surety bond guaranteeing performance of post-closure care shall not be acceptable for the purpose of complying with 310 CMR 30.906.

(d)40 CFR Part 265, Subpart F: Groundwater Monitoring, as in effect on July 1, 2005, excluding 40 CFR §§ 265.90(c) and 265.90(e) unless written approval for a waiver pursuant to said provisions is granted by the Department. The owner or operator or a stand-by surface impoundment which is designed and operated solely for the containment of hazardous waste in the event of an emergency at the facility (e.g., equipment failure or overflows) may apply to the Department, in writing, for a waiver from all or part of the groundwater monitoring requirements of 40 CFR Part 265, Subpart F. Notwithstanding any provision of 310 CMR 30.099(6) or 310 CMR 30.660: Groundwater Protection, the Department may require the owner or operator of any facility subject to the requirements of 310 CMR 30.099(6) to comply with, and such owner or operator shall comply with, all or part of 310 CMR 30.660: Groundwater Protection if the Department determines that such action is appropriate to protect public health, safety or welfare or the environment;

(e)40 CFR Part 265, Subpart I: Use and Management of Containers, as in effect on July 1, 2005, provided that the owner or operator shall also comply with 310 CMR 30.682: Labeling and Marking of Containers.

(f)310 CMR 30.690, provided that the owner or operator shall do the following, in addition to complying with 310 CMR 30.513, whenever a tank system is used to treat chemically or to store a hazardous waste that is substantially different from waste previously stored or treated in that tank system, or whenever a tank system is used to treat chemically a hazardous waste with a substantially different process than any previously used in that tank system:

1. Conduct waste analyses and trial treatment or storage tests (e.g. bench-scale or pilot-plant scale tests); or

2. Obtain written, documented information on similar waste under similar operating conditions to show that the proposed treatment or storage will the meet the requirements of 310 CMR 30.695: General Operating Requirements.

(g)40 CFR Part 265, Subpart K: Surface Impoundments, provided that the owner or operator shall remove all hazardous waste from each impoundment in compliance with 40 CFR § 265.228 unless the Department, in writing, directs otherwise;

(h)40 CFR Part 265, Subpart L: Waste Piles;

(i)40 CFR Part 265, Subpart M: Land Treatment;

(j)40 CFR Part 265, Subpart N: Landfills however, in lieu of compliance with 40 CFR 265.120, as well as 40 CFR 265.312 through 265.316, an owner/operator shall comply with 310 CMR 30.596 as well as 310 CMR 30.628 through 30.632;

(k)40 CFR Part 265, Subpart O: Incinerators;

(l)40 CFR Part 265, Subpart P: Thermal Treatment;

(m)40 CFR Part 265, Subpart Q: Chemical, Physical and Biological Treatment;

(n)40 CFR Part 265, Subpart W: Drip Pads;

(o)40 CFR Part 265, Subpart AA: Air Emission Standards for Process Vents;

(p)40 CFR Part 265, Subpart BB: Air Emission Standards for Equipment Leaks;

(q)40 CFR Part 265, Subpart DD: Containment Buildings;

(r) All provisions of 310 CMR 30.000 regulating mixed waste as hazardous waste;

(s) 310 CMR 30.602(12): Corrective Action Management Units, 30.602(13): Temporary Units and 30.602(14): Staging Piles;

(t) 310 CMR 30.750: Land Disposal Restrictions; and

(u)40 CFR Part 265, Subpart CC: Air Emission Standards for Tanks, Surface Impoundments, and Containers.

(7) A facility having interim status pursuant to RCRA at which there is stored waste oil (MA01) generated at that facility shall be considered by the Department to have interim status for such storage of waste oil, and the owner or operator shall at all times comply with 310 CMR 30.510 through 30.579 and 30.900 and all applicable requirements set forth in 40 CFR Part 265 as adopted and amended at 310 CMR 30.099.

(8) Ownership or operational control of a facility having interim status pursuant to RCRA shall not be transferred from one person to another until at least 90 days after a revised Part A permit application is submitted to the EPA and the Department. If the facility is licensed pursuant to 310 CMR 30.800, the provisions of 310 CMR 30.828 shall apply.

(9) The owner or operator of a facility having interim status pursuant to RCRA shall notify the Department's hazardous waste program by certified mail of the commencement of a voluntary or involuntary proceeding pursuant to Title 11 (Bankruptcy) of the United States Code in which the owner or operator is named as a debtor within ten days after commencement of the proceeding.

(10) An owner or operator of a facility having interim status pursuant to RCRA is prohibited from placing any hazardous waste, or any container or tank holding hazardous waste, in any salt dome, salt bed formation, underground mine or cave. In addition, an owner or operator of a facility having interim status pursuant to RCRA is prohibited from injecting hazardous waste into or through any well, as provided in 310 CMR 30.604(1).

(11) The owner or operator of a facility having interim status pursuant to RCRA is prohibited from storing, treating, disposing of, or otherwise managing any hazardous waste containing any polyhalogenated aromatic hydrocarbons.

(12) Notwithstanding any provision of 310 CMR 30.099(6) or any other provision of 310 CMR 30.000, a facility having interim status pursuant to RCRA shall cease to be a facility having interim status pursuant to RCRA in accordance with the following provisions:

(a) A land disposal facility which, on or any time before September 15, 1989, was a facility having interim status pursuant to RCRA shall not be a facility having interim status pursuant to RCRA on and after September 15, 1989 unless, by no later than November 8, 1985, the owner or operator of such facility had submitted to the Department:

1. a Part B hazardous waste facility license application for the facility, and

2. certification that, as of the date of the certification, the facility was in compliance with all applicable groundwater monitoring and financial responsibility requirements in effect on the date of the certification.

(b) A land disposal facility which is in existence on the effective date of statutory or regulatory amendments under M.G.L. c. 21C that render the facility subject to the requirement to have a license pursuant to 310 CMR 30.800, and which is granted interim status, shall not be a facility having interim status pursuant to RCRA on and after the date 12 months after the facility first becomes subject to such license requirement, unless by that date the owner or operator of such facility has submitted to the Department:

1. a Part B hazardous waste facility license application for the facility, and

2. certification that the facility is in compliance with all applicable ground water monitoring and financial responsibility requirements.

(c) A land disposal facility that is granted authority to operate in interim status pursuant to 310 CMR 30.099(5)(a)1., 2. or 3. shall not be a unit having interim status pursuant to RCRA on and after the date 12 months after the unit is granted authority to operate, unless by that date the owner or operator of the unit certifies that the unit is in compliance with all applicable ground water monitoring and financial responsibility requirements.

(d) A hazardous waste incinerator which, on or any time before November 8, 1989, was a facility having interim status pursuant to RCRA shall not be a facility having interim status pursuant to RCRA on and after November 8, 1989 unless, by no later than November 8, 1986, the owner or operator of such facility had submitted to the Department a Part B hazardous waste facility license application for the facility.

(e) A facility other than a landfill or a hazardous waste incinerator which on or any time before November 8, 1992, was a facility having interim status pursuant to RCRA shall not be a facility having interim status pursuant to RCRA on and after November 8, 1992 unless, by no later than November 8, 1988, the owner or operator of such facility had submitted to the Department a Part B hazardous waste facility license application for the facility.

(f) The Department may require an owner or operator of an existing hazardous waste management facility or of a facility in existence on the effective date of statutory or regulatory amendments under M.G.L. c. 21C that render the facility subject to the requirement to have a license to submit Part B of their license application. Any owner or operator shall be allowed at least six months from the date of request to submit Part B of the application. Any owner or operator of an existing hazardous waste management facility or of a facility in existence on the effective date of statutory or regulatory amendments under M.G.L. c. 21C that render the facility subject to the requirement to have a license may voluntarily submit Part B of the application at any time. Any owner or operator of such a hazardous waste management facility shall submit either a Part B license application in compliance with 310 CMR 30.800 or a closure plan in compliance with 40 CFR 265, Subpart G as adopted and amended at 310 CMR 30.099(6)(b), prior to the date on which interim status terminates pursuant to 310 CMR 30.099(12)(a) through (c).

(g) Failure to furnish a requested Part B application on time, or to furnish in full the information required by the Part B application, is grounds for termination of interim status pursuant to 310 CMR 30.850.

(13) Corrective Action at Interim Status Disposal Facilities.

(a) For purposes of 310 CMR 30.099(13) only, all terms shall be defined as defined in 310 CMR 30.010, except that the following terms shall be defined as follows:

1. Hazardous Material means material, including, but not limited to, any material in whatever form which, because of its quantity, concentration, chemical, corrosive, flammable, reactive, toxic, infectious or radioactive characteristics, either separately or in combination with any substance or substances, constitutes a present or potential threat to human health, safety, welfare, or to the environment, when improperly stored, treated, transported, disposed of, used, or otherwise managed. The term shall not include oil, but shall include waste oil and all those substances that are included under 42 U.S.C. § 9601(14), but it is not limited to those substances. The term shall also include, but is not limited to, material regulated as hazardous waste or recyclable material under 310 CMR 30.000 and 310 CMR 40.0000.

2. Interim Status Disposal Facility Implementing Corrective Action means a facility that has not been issued a hazardous waste permit/license pursuant to 310 CMR 30.602(9) or a post closure order pursuant to 310 CMR 30.602(10), at which:

a. Hazardous waste was disposed of in a surface impoundment, waste pile, land treatment unit, or landfill, after July 26, 1982; or

b. An owner or operator either certified closure of or applied for a closure by removal determination regarding the closure of a surface impoundment, waste pile, land treatment unit, or landfill, after January 26, 1983.

3. Licensed Site Professional and LSP each means a hazardous waste site professional, as defined in M.G.L. c. 21A, § 19, holding a valid license issued by the Board of Registration of Hazardous waste Site Professionals pursuant to M.G.L. c. 21A, §§ 19 through 19J.

4. OHM means oil and/or hazardous material.

5. Oil means insoluble or partially soluble oils of any kind or origin or in any form, including, without limitation, crude or fuel oils, lube oil or sludge, asphalt, insoluble or partially insoluble derivatives of mineral, animal or vegetable oils and white oil. The term shall not include waste oil, and shall not include those substances that are included in 42 U.S.C. § 9601(14).

(b) The requirements of 310 CMR 30.099(13) shall apply to the owner and/or operator of an Interim Status Disposal Facility Implementing Corrective Action. The owner and/or operator of an Interim Status Disposal Facility Implementing Corrective Action shall investigate and remediate all releases and potential releases of OHM at or from the facility in accordance with the requirements of 310 CMR 30.099(13).

(c) The owner and/or operator of an Interim Status Disposal Facility Implementing Corrective Action shall be regulated under M.G.L. c. 21E and 310 CMR 40.0000 (the Massachusetts Contingency Plan or MCP) and shall carry out all response actions in accordance with the requirements of those provisions. In order to be considered as adequately regulated pursuant to M.G.L. c. 21C, the owner and/or operator of an Interim Status Disposal Facility also shall comply with the additional requirements specified in 310 CMR 30.099(13).

1. An owner or operator of an Interim Status Disposal Facility Implementing Corrective Action who at the time of the effective date of 310 CMR 30.099(13) already is performing response actions addressing all releases and potential releases of OHM at or from the facility in accordance with M.G.L. c. 21E and 310 CMR 40.0000 shall continue to comply with those provisions, and shall also comply with the additional requirements specified in 310 CMR 30.099(13). 310 CMR 30.099 applies only to owners or operators who already have submitted to the Department an LSP Tier Classification Opinion and Release Notification Form(s), covering all solid waste management units at a facility, in full conformance with all applicable provisions of the MCP.

2. On or before 90 days from the effective date of 310 CMR 30.099(13), an owner or operator of an Interim Status Disposal Facility Implementing Corrective Action who is not covered by 310 CMR 30.099(13)(c)(1), or anyone else notified by the Department to comply with this provision, shall submit to the Department an LSP Tier Classification Opinion and Release Notification Form(s), addressing all releases and potential releases of OHM at or from the facility, from all solid waste management units, in full conformance with all applicable provisions of the MCP. The owner or operator shall perform response actions at the facility in accordance with M.G.L. c. 21E and 310 CMR 40.0000, and also shall comply with the additional requirements specified in 310 CMR 30.099(13).

(d) The response actions required under 310 CMR 30.099(13) shall, at a minimum, be equivalent to that specified for corrective action in 40 CFR 264.101 as adopted at 310 CMR 30.602. Utilizing the oversight and public participation procedures specified in 310 CMR 30.099(13)(e)1. through 6., the Department will ensure that any such response actions:

1. Protect health, safety, public welfare and the environment for all releases and potential releases of OHM at or from a facility, and

2. Meet all applicable requirements of the MCP, including the Response Action Performance Standards set forth at 310 CMR 40.0191 and the Performance Standards for Response Action Outcomes at 310 CMR 40.1004 and/or the Performance Standards for Remedy Operation Status at 310 CMR 40.0893(2), whichever are applicable.

(e) Department Oversight and Public Participation.

1. While a response action is being carried out, the Department and the owner or operator of an Interim Status Disposal Facility Implementing Corrective Action shall comply with all required Public Involvement activities in full conformance with the applicable provisions of 310 CMR 40.1400. In addition, at a minimum, prior to submitting a final Phase III report regarding remedy selection under the MCP to the Department in conformance with 310 CMR 40.0850, the owner or operator of an Interim Status Disposal Facility Implementing Corrective Action shall:

a. Provide an opportunity for public comment on the Phase III by holding a minimum 30 day comment period, which may include the holding of a public meeting. The owner or operator shall give notice of the opportunity to submit comments, and of the public meeting if any, by causing the notice to be published (at its expense) in a newspaper having a substantial circulation in the affected area and by providing the notice to the Department and to all persons on the facility mailing list maintained pursuant to 310 CMR 40.1400.

b. Provide the Department with a copy of all public comments received.

c. Summarize and respond to the comments, and provide the Department and all persons who submit comments with a copy of the summary and response, noting which comments were incorporated, and explaining why other comments were not incorporated.

2. If at any time during the carrying out of a response action, for any reason including in response to public comments received pursuant to 40 CMR 40.1400 or 310 CMR 30.099(13), the Department determines that the response action is not being carried out in accordance with the MCP or 310 CMR 30.099(13), the Department may take any appropriate action, including issuing an order pursuant to M.G.L. c. 21E, §§ 9 and 10, and 310 CMR 40.0010. In particular, notwithstanding 310 CMR 40.0550(4)(a) and 40.0560(4)(a), the Department may at any time require the owner or operator of an Interim Status Facility Implementing Corrective Action to obtain prior Departmental approval of one or more of the submittals specified by 310 CMR 40.0550(2) or 40.0560(2), whichever is applicable, or the response actions or submittals required pursuant to 310 CMR 40.0800. The Department may require such prior approval for submittals or response actions as they relate to the entire facility or some portion thereof.

3. The Department shall audit in accordance with the MCP the response actions at all facilities at which corrective actions are undertaken pursuant to 310 CMR 30.099(13). If the Department determines that response action(s) at an Interim Status Disposal Facility Implementing Corrective Action has not been completed so as to meet all of the requirements of the MCP and 310 CMR 30.099(13), then the owner and/or operator of the facility shall perform any additional response actions required by the Department in accordance with the MCP and 310 CMR 30.099(13). The Department will notify the owner or operator in writing if it determines that further response action at a facility is required and shall include the basis for any such determination in any such notification.

4. Upon a tentative determination by the Department that response action(s) undertaken by the owner or operator of an Interim Status Disposal Facility Implementing Corrective Action were performed in compliance with M.G.L. c. 21E, the MCP, 310 CMR 30.099(13) and any other requirements applicable to such response actions, and that all other requirements for the termination of interim status have been met, the Department shall publish, or cause to be published, a public notice reflecting the Department's tentative determination to terminate the facility's interim status. Any such notice shall:

a. Be published, at the Department's expense, in a newspaper having a substantial circulation in the affected area;

b. Be provided to the owner or operator of the facility and to all persons on the facility mailing list maintained pursuant to 310 CMR 40.1400; and

c. Indicate the basis for the Department's tentative determination and that the Department will accept public comments on the tentative determination for at least 30 days from the date of publication.

5. After the public comment period, which may include holding a public meeting, the Department shall make a final determination. The Department will make a final determination to terminate a facility's interim status only if it finds that the facility has completed corrective action in full compliance with M.G.L. c. 21E, the MCP, 310 CMR 30.099(13) and any other requirements applicable to such response action(s), and that all other requirements for the termination of interim status have been met. Notice of the Department's final determination shall be provided to the owner or operator of the Interim Status Disposal Facility Implementing Corrective Action and to all persons who commented on the Department's tentative determination.

6. The Department may, when the Department deems it appropriate, make an earlier determination that all or a designated portion of the response actions undertaken by an owner or operator of an Interim Status Disposal Facility Implementing Corrective Action were performed in compliance with M.G.L. c. 21E, the MCP, 310 CMR 30.099(13) and any other requirements applicable to such response actions, even if the Interim Status Disposal Facility Implementing Corrective Action does not yet meet all requirements for the termination of interim status. The process for making any such determinations shall be the same as that set forth in 310 CMR 30.099(13)(e)4. Any such determination, however, shall not terminate interim status for the Interim Status Disposal Facility Implementing Corrective Action.

(f) Nothing in 310 CMR 30.099(13) shall relieve an owner or operator of an Interim Status Disposal Facility Implementing Corrective Action from any other obligation imposed by law, including but not limited to any closure or post closure obligation of 310 CMR 30.580 and 310 CMR 30.590, respectively, or any financial responsibility requirement imposed under 310 CMR 30.900. With respect to closure and post closure requirements for regulated units, Interim Status Disposal Facilities Implementing Corrective Action will remain regulated under M.G.L. c. 21C, notwithstanding that they will carry out response actions for facility-wide corrective action under M.G.L. c. 21E.

(g) Nothing in 310 CMR 30.099(13) shall limit the authority of the Department under any statute or other regulation, including but not limited to the authority to issue any order to prevent or abate the release of OHM or potential sources of OHM.

(h) The owner or operator of an Interim Status Disposal Facility Implementing Corrective Action subject to 310 CMR 30.099(13) is responsible for payment of all Annual Compliance Fees for which it can be assessed pursuant to the provisions of 310 CMR 5.00, M.G.L. c. 21E and the MCP, and is responsible for payment of all applicable fee(s) required to accompany any submissions(s) pursuant to the provisions of 310 CMR 5.00, M.G.L. c. 21E and the MCP.

Notes

310 CMR, § 30.099