310 CMR, § 40.0570 - Requirements for Eligible Persons, Eligible Tenants or Other Persons Seeking to Re-establish Response Action Deadlines

(1) Notwithstanding 310 CMR 40.0560, Eligible Persons, Eligible Tenants or Other Persons who are required or intend to conduct response actions at a Tier Classified disposal site and who have not previously submitted a Tier Classification Submittal for the disposal site may seek to reestablish the deadlines for response actions by submitting a Tier Classification Submittal; provided however, that for the purpose of reestablishing deadlines pursuant to 310 CMR 40.0570:

(a) Eligible Persons who became an owner or operator of a site or portion thereof prior to December 14, 2007 shall make such submittal within 120 days of December 14, 2007, unless the Department agrees to a later date;

(b) Eligible Persons who become an owner or operator of a site or portion thereof after December 14, 2007 shall make such submittal within 120 days of becoming such an owner or operator, unless the Department agrees to a later date;

(c) Eligible Tenants who acquire occupancy, possession or control of a site or portion thereof prior to December 14, 2007 shall make such submittal within 120 days of December 14, 2007, unless the Department agrees to a later date;

(d) Eligible Tenants who acquire occupancy, possession or control of a site or portion thereof after December 14, 2007 shall make such submittal within 120 days of acquiring such occupancy, possession or control, unless the Department agrees to a later date;

(e) Persons who became Other Persons prior to December 14, 2007 shall make such submittal within 120 days of December 14, 2007, unless the Department agrees to a later date; and

(f) Persons who became Other Persons after December 14, 2007 shall make such submittal within 120 days of becoming an Other Person, unless the Department agrees to a later date.

(2) Unless otherwise specified by the Department in writing, deadlines reestablished pursuant to 310 CMR 40.0570 shall be calculated from the effective date of the Tier Classification submitted to the Department pursuant to 310 CMR 40.0570(1), and the Tier Classification shall expire five years from the effective date. An RP, PRP or Other Person shall not conduct Comprehensive Response Actions pursuant to 310 CMR 40.0800 at a disposal site for which a Tier Classification has expired, unless a Tier Classification Extension is obtained pursuant to 310 CMR 40.0560(7).

(3) An Eligible Person, Eligible Tenant, or Other Person seeking to reestablish response action deadlines pursuant to 310 CMR 40.0570 must provide with the Tier Classification Submittal a written certification pursuant to 310 CMR 40.0009 stating that:

(a) such person, in the case of a person asserting to be an Eligible Person, is an owner or operator of the disposal site or a portion thereof who would be liable under M.G.L. c. 21E, § 5(a)(1) solely, did not cause or contribute to the release, and did not own or operate the site at the time of the release;

(b) such person, in the case of a person asserting to be an Eligible Tenant, is a person who acquired occupancy, possession or control of the disposal site, or a portion thereof, after the release of oil or hazardous material has been reported to the department, did not cause or contribute to the release, and would not otherwise be liable pursuant to M.G.L. c. 21E, § 5(a)(2) through (5);

(c) such person, in the case of a person asserting to be an Other Person, is not an RP or PRP, with specific facts sufficient to support this statement;

(d) such person is not, and was not at any time, affiliated with any other person

1. who owned or operated the property from which the release originated, or caused such release, and

2. who is potentially liable under M.G.L. c. 21E for the disposal site through any direct or indirect contractual, corporate or financial relationship other than:

a. that established by any instrument creating such person's interest in property within the disposal site boundaries; or

b. that established by an instrument wholly unrelated to the disposal site and which would not otherwise render such person potentially liable as a result of the relationship; and

(e) such person, if a trust, consists of trustees, members and/or beneficiaries, all of whom satisfy 310 CMR 40.0570(3)(a) through (d).

Nothing in 310 CMR 40.0570 shall preclude the Department from considering any other information relative to whether such person is an Eligible Person, Eligible Tenant or Other Person.

(4) Notwithstanding 310 CMR 40.0510(2), any person seeking to reestablish response action deadlines pursuant to 310 CMR 40.0570 by submitting a Tier Classification Submittal may elect to rely upon a Phase I Report, conceptual Phase II Scope of Work, and Tier I or Tier II Classification of the disposal site contained in a Tier Classification Submittal previously submitted to the Department, provided that such previous Tier Classification is consistent with the criteria at 310 CMR 40.0520(2). The new Tier Classification Submittal in such case shall include an LSP Opinion stating that such Submittal relies on such previously provided information.

(5) Provided that 310 CMR 40.0570(1) through (4) are satisfied, and unless at any time following the Department's receipt of a Tier Classification Submittal pursuant to this section the Department establishes an Interim Deadline(s) as described in 310 CMR 40.0167 for conducting response actions, the response action submittal deadlines for Eligible Persons, Eligible Tenants or Other Persons undertaking response actions pursuant to 310 CMR 40.0570 shall be reestablished as follows:

(a) a scope of work for a Phase II - Comprehensive Site Assessment pursuant to 310 CMR 40.0834 prior to the implementation of Phase II field work, unless the Phase II field work had been implemented prior to Tier Classification;

(b) a Phase II Report within three years of the effective date of the Tier Classification;

(c) if applicable, a Phase III Remedial Action Plan and a Phase IV Remedy Implementation Plan within four years of the effective date of Tier Classification; and

(d) a Permanent or Temporary Solution Statement pursuant to 310 CMR 40.1000, or a Remedy Operation Status Submittal pursuant to 310 CMR 40.0893, within five years of the effective date of Tier Classification.

(6) If the person filing the certification pursuant to 310 CMR 40.0570(3) is subsequently determined not to be an Eligible Person, Eligible Tenant or Other Person, or if such certification is determined at any time to be inaccurate or untrue, the original response action deadlines for the site shall supersede the deadlines established pursuant to 310 CMR 40.0570.

(7) In establishing Interim Deadlines for response actions pursuant to 310 CMR 40.0570 and 310 CMR 40.0167, the Department may consider, without limitation, the complexity of the disposal site and the extent to which response actions have already been completed for the disposal site.

(8) Nothing in 310 CMR 40.0570 shall limit a person's ability to seek a transfer of a Tier Classification; provided however, that any response action deadline reestablished pursuant to 310 CMR 40.0570 shall apply only to the Eligible Person, Eligible Tenant or Other Person making the submittals set forth in 310 CMR 40.0570, or to any subsequent Eligible Person, Eligible Tenant or Other Person to whom the Tier Classification is transferred who also files the certification described in 310 CMR 40.0570(3) within the applicable deadline specified in 310 CMR 40.0570(1).

Notes

310 CMR, § 40.0570

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