310 CMR, § 40.0173 - Site Access Authorization
(1) After making
reasonable efforts to obtain reasonable access to any site or other location to
be investigated as a possible site not owned by him or her, a RP, PRP or Other
Person who is unable to obtain such access may request, in writing, that the
Department authorize him or her, or his or her employees, agents,
representatives or contractors, to enter such site or location for the purpose
of performing one or more necessary response actions. Each such request for
authorization shall include all of the following information:
(a) the identity of the person making the
request and his or her relationship to the site or location;
(b) the nature and location of the response
action(s) that he or she intends to undertake, the anticipated duration of the
response action(s) and the reason(s) such access is necessary to perform the
response action(s);
(c) the
identity of the person or persons who own or operate the site or location to
which the Department's authorization for access is sought;
(d) the results of any and all attempts to
obtain such access; and
(e)
certification that a copy of the request has been sent to each person or
persons who own or operate such sites or locations.
(2) Any person who intends to submit such a
request for authorization to the Department shall send a copy thereof to each
person who owns and operates the site or location to which access is sought by
certified mail, return receipt requested, and a statement informing such person
that he or she may file a response thereto with the Department in accordance
with 310 CMR 40.0173, prior to submitting the request to the Department. Each
person to whom a copy of the request is sent may submit a response to the
request, in writing, to the Department.
(3) The Department may take any of the
following actions in response to a request for such authorization:
(a) the Department may authorize any person,
in writing, pursuant to its authority under M.G.L. c. 21E, § 8, to enter
any site, vessel or location upon consent of the owner or operator thereof for
the purpose of performing one or more response actions in accordance with any
terms, conditions or requirements established by the Department;
(b) the Department may issue to any person a
Request for Information;
(c) the
Department may issue an order under M.G.L. c. 21E, §§ 9 or 10,
requiring any person to perform one or more response actions;
(d) the Department may seek and execute an
administrative inspection warrant or criminal search warrant in accordance with
applicable law;
(e) the Department
may take or arrange the performance of any necessary response action in
accordance with M.G.L. c. 21E and 310 CMR 40.0000;
(f) the Department may issue a Notice of
Responsibility to any person who is a PRP; and
(g) the Department may deny the request or
take any other action authorized by M.G.L. c. 21E, 310 CMR 40.0000 or any other
law.
(4) In addition to
the actions set forth in 310 CMR 40.0173(3), the Department may designate as
its authorized representative for the purpose of access one or more RPs, PRPs
or Other Persons, including employees, agents and contractors of such parties.
The Department may exercise the authority contained in M.G.L. c. 21E, § 8,
to obtain access for its designated representative. An RP, PRP or Other Person
may only be designated as the Department's authorized representative if such
person has agreed to serve as the Department's designated representative and to
indemnify the Department to the Department's satisfaction for any injuries or
damages that occur as a result of the activities undertaken by such person
pursuant to such designation.
(5)
The Department's decision in response to a request for Site Access
Authorization under 310 CMR 40.0173 shall not be subject to M.G.L. c. 30A, or
any other law, governing adjudicatory proceedings.
(6) The authority in 310 CMR 40.0173 is
intended to be exercised at the Department's discretion. No provision in 310
CMR 40.0173 shall be construed to create in any person a right to the
Department's authorization for access or to create any duty of the Department
to obtain access to any site or other location for any person.
Notes
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