310 CMR, § 40.1080 - Changes in Site Activities and/or Uses or Other Site Conditions after an Activity and Use Limitation Has Been Filed

(1) Evaluation of Contemplated Site Activity and/or Use Changes. Where a Permanent or Temporary Solution is based upon certain restrictions, limitations and/or conditions on Site Activities and/or Uses, any contemplated Site Activity and/or Use that is not specifically permitted by an Activity and Use Limitation and that may invalidate the condition of No Significant Risk or No Substantial Hazard, whichever is applicable were it to occur, shall be evaluated by an LSP before such Site Activity and/or Use is implemented. Such evaluation shall be submitted to the Department using a transmittal form provided for such purpose and shall include:

(a) an LSP Opinion on a form prescribed by the Department as to whether, based on an evaluation of the contemplated Site Activity and/or Use pursuant to the risk characterization process in 310 CMR 40.0900, a condition of No Significant Risk or No Substantial Hazard, whichever is applicable, will continue to exist if the contemplated changes in Site Activity and/or Use were to occur;

(b) the risk characterization conducted pursuant to 310 CMR 40.0900 evaluating the contemplated Site Activity and/or Use on which the LSP Opinion in 310 CMR 40.1080(1)(a) is based; and

(c) a response action plan in accordance with 310 CMR 40.1067 and 310 CMR 40.0000 that specifies any additional response actions necessary to maintain or achieve a condition of No Significant Risk or No Substantial Hazard for the contemplated Site Activity and/or Use and the objectives of the Activity and Use Limitation, if any such LSP Opinion indicates that a condition of No Significant Risk or No Substantial Hazard, whichever is applicable, would no longer be met as a result of the contemplated changes in Site Activity and/or Use.

(2) Procedures for Additional Response Actions. Additional response actions required to maintain a level of No Significant Risk or No Substantial Hazard, for the contemplated changes in Site Activities or Uses, shall be completed before the new or altered activities or uses commence in accordance with the following:

(a) any additional response actions shall be conducted pursuant to 310 CMR 40.0000 and specifically 310 CMR 40.1067;

(b) such response actions shall achieve a level of No Significant Risk or No Substantial Hazard, for the new/altered Site Activities or Uses contemplated for the disposal site;

(c) the Activity and Use Limitation shall be amended or released as appropriate pursuant to 310 CMR 40.1081 to include the new or altered Site Activities or Uses identified in the LSP Opinion under 310 CMR 40.1080(1) before the new or altered Site Activities or Uses commence; and

(d) a revised Permanent or Temporary Solution Statement, where applicable, shall be submitted to the Department to reflect any changes in conditions from the previous Permanent or Temporary Solution Statement within 60 days from completion of response actions.

(3) At any disposal site which relies, in whole or in part, upon a Grant of Environmental Restriction to maintain a level of No Significant Risk or No Substantial Hazard and where such Environmental Restriction is not granted in perpetuity, the RPs, PRPs and Other Persons liable and/or responsible for such site shall upon expiration of the Grant of Environmental Restriction either comply with the procedures set forth in 310 CMR 40.1080(1) and (2), or take any response actions required by 310 CMR 40.0000 to meet the objectives of the Grant of Environmental Restriction.

(4) Changes in Site Activities or Uses at an Adequately Regulated Disposal Site Subject to CERCLA where a Notice of Activity and Use Limitation Has Been Implemented. Where the selected remedy at an adequately regulated disposal site subject to CERCLA relies in whole or in part on land use controls implemented through a Notice of Activity and Use Limitation pursuant to 310 CMR 40.0111(8), any contemplated Site Activity and/or Use at such disposal site that is not identified by the Notice of Activity and Use Limitation as being consistent with the remedy selected under CERCLA for such disposal site shall be evaluated by a qualified hazardous waste site professional before such Site Activity and/or Use may occur. Such evaluation shall be submitted to EPA and the Department for their approval. Such evaluation shall include a risk characterization evaluating whether the contemplated Site Activity and/or Use is consistent with the maintenance of the remedy selected under CERCLA at such disposal site and with any Permanent Solution or Remedy Operation Status achieved at such disposal site under 310 CMR 40.0111(10) or 310 CMR 40.0111(11). Such evaluation shall also include a response action plan that specifies any additional response actions necessary to maintain the remedy selected under CERCLA at such disposal site and any Permanent Solution or Remedy Operation Status achieved under 310 CMR 40.0111(10) or 310 CMR 40.0111(11) at such disposal site. The new or altered Site Activities and/or Uses may commence only after:

(a) EPA and the Department approve the evaluation submitted by the qualified hazardous waste site professional, including any required response action plan;

(b) the additional response actions identified in the response action plan have been completed to EPA's and MassDEP's satisfaction; and

(c) the Notice of Activity and Use Limitation is amended or released as appropriate pursuant to 310 CMR 40.1081 to include the new or altered Site Activities or Uses identified by the qualified hazardous waste site professional.

Notes

310 CMR, § 40.1080

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