310 CMR, § 40.0923 - Identification of Site Activities and Uses

The documentation of the Risk Characterization shall identify and describe the Site Activities and Uses associated with the disposal site and the surrounding environment. These activities shall be used in combination with the criteria described in 310 CMR 40.0930 through 310 CMR 40.0939 to identify applicable groundwater and soil categories and to estimate the nature and, where appropriate, quantify the magnitude of exposure pursuant to 310 CMR 40.0990.

(1) The Site Activities and Uses shall include all current and reasonably foreseeable uses and activities occurring at the disposal site or in the surrounding environment which could result in exposure to oil and/or hazardous material by Human or Environmental Receptors.

(a) The identification of Site Activities and Uses of the groundwater shall be determined independent of the activities and uses of the land itself.

(b) The Site Activities and Uses of the land shall be identified without regard to whether the land is currently developed or undeveloped.

(c) The selection of site-specific exposure frequency and exposure duration should be representative of the full extent of site activities consistent with the identified Site Use.

(2) The current Site Activities and Uses associated with the land itself, with structures in and on the land, and with the groundwater, surface water, soil, sediment or other medium which could result in exposure of Human or Environmental Receptors to oil and/or hazardous material shall be identified and described. This evaluation shall include consideration of activities which actually may not be occurring at the time of the evaluation, but which are consistent with the current use of the disposal site and surrounding environment and may reasonably be expected to occur including, but not limited to, emergency excavation and repair of existing subsurface utilities by workers without personal protective equipment.

(3) The reasonably foreseeable Site Activities and Uses shall include any possible activity or use that could occur in the future to the extent that such activity or use could result in exposures to Human or Environmental Receptors that are greater than the exposures associated with current Site Activities and Uses, except that:

(a) the groundwater shall not be considered a reasonably foreseeable source of drinking water, unless it is considered to be in category GW-1 pursuant to the criteria listed in 310 CMR 40.0932(4);

(b) specific Site Activities and Uses which would be reasonably foreseeable pursuant to 310 CMR 40.0923(3) may be eliminated from further consideration through the use of Activity and Use Limitations in accordance with 310 CMR 40.1012 and 310 CMR 40.1070 through 40.1089; and

(c) specific Site Activities and Uses which would be reasonably foreseeable pursuant to 310 CMR 40.0923(3) may be eliminated from further consideration if they are consistent with the limitations, assumptions and/or conditions at 310 CMR 40.1013 and are documented in support of a Permanent Solution with Conditions pursuant to 310 CMR 40.1056(2)0).

(4) If the Site Activities and Uses considered in the Risk Characterization will be limited in any way as described in 310 CMR 40.0923(3)(b) or (c) or by a restriction imposed by a government agency which is or will be in place, then the documentation of the Risk Characterization must clearly and concisely state the nature of any and all explicit or implied exposure limitations and describe the Site Activities and Uses which must be controlled or prohibited.

(a) The assessment of current Site Activities and Uses shall not be limited by Activity and Use Limitations and/or government restrictions that are not in place or not effective, nor by any assumed future practices, controls or conditions; and

(b) The results of the Risk Characterization shall not be considered valid unless and until all necessary government restrictions are in place and/or all Activity and Use Limitations have been recorded, registered or filed in accordance with 310 CMR 40.1070 through 40.1089.

(5) If the Site Activities and Uses considered in the Risk Characterization have been limited in any way by temporary risk reduction measures (e.g., fences which restrict access) employed at the disposal site, or by presumed future response actions, the documentation of the Risk Characterization shall describe clearly and concisely the nature of all such limitations. The documentation of the Risk Characterization shall clearly and concisely state that:

(a) the conclusions presented are based upon the described temporary measures and/or the implementation of described future response actions; and

(b) the conclusions are valid only if, and as long as, the site conditions or the temporary measures are maintained and/or the presumed response actions have been implemented as described.

(6) Examples of Site Activities and Uses associated with Human Receptors include, without limitation:

(a) the use of a building as an office, store or residence;

(b) the use of water as drinking water, for washing floors or watering lawns;

(c) the cultivation of fruits and vegetables destined for human consumption (e.g., gardening or farming) and the cultivation of ornamental plants;

(d) the excavation of soil;

(e) recreational activities, such as playing baseball, swimming, fishing and hiking; and

(f) leisure activities, such as picnicking, sunbathing and entertaining.

(7) Examples of Site Activities and Uses associated with Environmental Receptors include, without limitation:

(a) foraging by wildlife;

(b) the support of plant or wildlife populations; and

(c) the seasonal use of a location for nesting or mating.

Notes

310 CMR, § 40.0923

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