310 CMR, § 40.0015 - Content of Waste Site Cleanup Activity Opinions

(1) Each and every LSP Opinion submitted to the Department pursuant to M.G.L. c. 21E or 310 CMR 40.0000 shall bear the signature and seal of the LSP who rendered the LSP Opinion and the date on which the LSP Opinion was rendered.

(2) An LSP rendering an LSP Opinion for submittal to the Department shall:

(a) identify in the LSP Opinion the material facts, data and other information known by him or her about the disposal site that is pertinent to the LSP Opinion; and

(b) disclose and explain in the LSP Opinion the material facts, data, other information, and qualifications and limitations known by him or her which may tend to support or lead to an LSP Opinion contrary to, or significantly different from, the one expressed.

(3) The submittals required by 310 CMR 40.0000, which are LSP Opinions, include, but are not limited to, the following:

(a) any Status Report submitted in accordance with 310 CMR 40.0000, including, but not limited to:

1. any Immediate Response Action Status and Remedial Monitoring Report submitted pursuant to 310 CMR 40.0425;

2. any Release Abatement Measure Status and Remedial Monitoring Report submitted pursuant to 310 CMR 40.0445;

3. any Utility-related Abatement Measure Status and Remedial Monitoring Report submitted pursuant to 310 CMR 40.0465;

(b) any Completion Statement submitted pursuant to 310 CMR 40.0000, including, but not limited to:

1. any Immediate Response Action Completion Statement submitted pursuant to 310 CMR 40.0427, except as otherwise provided pursuant to 310 CMR 40.0411(3);

2. any Release Abatement Measure Completion Statement submitted pursuant to 310 CMR 40.0446;

3. any Utility-related Abatement Measure Completion Statement submitted pursuant to 310 CMR 40.0466;

4. any Phase I Completion Statement submitted pursuant to 310 CMR 40.0484;

5. any Phase II Completion Statement submitted pursuant to 310 CMR 40.0836;

6. any Phase III Completion Statement submitted pursuant to 310 CMR 40.0862;

7. any Phase IV Completion Statement submitted pursuant to 310 CMR 40.0879; and

8. any Phase V Completion Statement submitted pursuant to 310 CMR 40.0893;

(c) any Phase Report submitted pursuant to 310 CMR 40.0000, including, but not limited to:

1. any Scope of Work submitted pursuant to 310 CMR 40.0510(2)(f) or 310 CMR 40.0834;

2. any Phase II Report submitted pursuant to 310 CMR 40.0835;

3. any Remedial Action Plan submitted pursuant to 310 CMR 40.0861;

4. any Notice of Commencement of Work submitted pursuant to 310 CMR 40.0870;

5. any Remedy Implementation Plan submitted pursuant to 310 CMR 40.0874;

6. any Final Inspection Report submitted pursuant to 310 CMR 40.0878;

7. any Phase IV Status and Remedial Monitoring Report submitted pursuant to 310 CMR 40.0877;

8. any Phase V Status and Remedial Monitoring Reports submitted pursuant to 310 CMR 40.0892; and

9. any As-built Construction Report submitted pursuant to 310 CMR 40.0875;

(d) any Immediate Response Action Plan submitted pursuant to 310 CMR 40.0424, except as otherwise provided pursuant to 310 CMR 40.0411(2);

(e) any Release Abatement Measure Plan submitted pursuant to 310 CMR 40.0444;

(f) any Permanent Solution Statement or Temporary Solution Statement submitted pursuant to 310 CMR 40.1000, except as otherwise provided pursuant to 310 CMR 40.1056(1)(g);

(g) any LSP Tier Classification Opinion submitted pursuant to 310 CMR 40.0500;

(h) any Periodic Review Opinion submitted pursuant to 310 CMR 40.1050;

(i) any Activity and Use Limitation Opinion submitted pursuant to 310 CMR 40.1000;

(j) any Audit Follow-up Plan submitted pursuant to 310 CMR 40.1160;

(k) any Post-Audit Completion Statement submitted pursuant to 310 CMR 40.1170;

(l) any Downgradient Property Status Opinion submitted pursuant to 310 CMR 40.0180; and

(m) any Remedy Operation Status Opinion submitted pursuant to 310 CMR 40.0893.

(4) No provision in the MCP is intended to render an LSP Opinion a warranty or guaranty; provided, however, that an Opinion shall be considered a representation:

(a) that the Professional Services associated therewith were provided in accordance with the applicable standards of care;

(b) that the response action(s) which is (are) the subject of the Opinion was (were) performed in accordance with the applicable provisions of M.G.L. c. 21E, 310 CMR 40.0000, and any DEP order(s), permit(s) or approval(s); and

(c) that the conclusion(s) expressed therein is (are) based upon the rendering LSP's professional judgment and reflect his or her knowledge, information and belief.

(5) Any rider annexed to an LSP Opinion concerning professional liability exposure shall be deemed void by the Department for enforcement purposes to the extent that it is inconsistent with 310 CMR 40.0009(5) or otherwise serves to compromise or diminish the content or meaning of the Opinion for the Department's purposes under M.G.L. c. 21E and/or the MCP. The Department's receipt, acceptance or approval of any document which contains such a rider, shall not be construed to imply Department approval or endorsement of the liability management mechanism or practice contained therein or the content thereof.

(6) No provision in 310 CMR 40.0000 shall be construed to require that an LSP render a conclusion as to whether a person performing a response action has complied with a deadline or time period for the rendering of an LSP Opinion established by, or pursuant to, 310 CMR 40.0000.

(7) Electronic Submittal of Waste Site Cleanup Activity Opinions.

(a) On or after January 1, 2009, all LSP Opinions shall be submitted to the Department electronically on a form established by the Department for such purposes.

(b) The date of receipt of LSP Opinions by the Department shall be determined as specified in 310 CMR 40.0008(4).

(c) For LSP Opinions submitted electronically, submission of a printed copy to the Department shall not be required.

Notes

310 CMR, § 40.0015

Amended by Mass Register Issue 1503, eff. 3/1/2024. Amended by Mass Register Issue S1516, eff. 3/1/2024.