Section 40.0111 - Federal Superfund Program(1) The Department shall deem response actions at a disposal site subject to CERCLA adequately regulated for purposes of compliance with 310 CMR 40.0000, provided: (a) for sites at which a ROD has not been issued,1. the response actions are conducted in compliance with the National Contingency Plan and any applicable EPA approvals or orders; and2. subsequent site assessment, cleanup and/or closure activities are addressed pursuant to CERCLA; or(b) the Department concurs with the ROD and/or other EPA decisions for remedial actions at such site in accordance with 40 CFR 300.515(e); or(c) if the Department requests that EPA change or expand the EPA-selected remedial action, EPA agrees to integrate the Department's proposed changes or expansions into the planned CERCLA remedial action in accordance with 40 CFR 300.515(f); or(d) if the Department does not concur with the ROD and/or other EPA decisions for remedial actions at such site, the EPA-selected remedial action is thereafter modified so as to integrate the Department's proposed changes or expansions into the planned CERCLA remedial work in accordance with CERCLA section 121(f)(2); or(e) if the Department reviewed the ROD and/or other EPA decision for remedial actions at such site and has no comment with respect thereto.(2)310 CMR 40.0000 shall apply to any release or threat of release of oil and/or hazardous material and to any response action that is not subject to CERCLA.(3) The Department shall take appropriate actions to obtain any federal monies available to fund response actions.(4) The Department shall seek to incorporate the requirements, standards and procedures established by M.G.L. c. 21E, and/or 310 CMR 40.0000, to the extent practicable as follows: (a) in each site-specific cooperative agreement;(b) in each Superfund state contract under CERCLA; and(c) during the processes set forth in 40 CFR 300.515(d) and (e).(5) No provision in 310 CMR 40.0111 shall be construed to limit or waive the Department's authority to concur with the ROD for remedial actions at any NPL site.(6) No provision in 310 CMR 40.0111 shall be construed to limit or waive the application of any state law or regulation other than M.G.L. c. 21E, and 310 CMR 40.0000, or any authority delegated to any agency of the Commonwealth pursuant to federal law.(7) No provision in 310 CMR 40.0111 shall be construed to limit or waive the Commonwealth's authority under CERCLA including, but not limited to, the right to: (a) be substantially and meaningfully involved in the initiation, development and selection of response actions at NPL Sites; and(b) bring or maintain an action under CERCLA or any other law for purposes of attaining state standards, requirements, criteria or limitations with respect to CERCLA remedial work.(8) At disposal sites deemed by the Department to be Adequately Regulated pursuant to 310 CMR 40.0111 where the selected remedy relies, in whole or in part, on the imposition of land use controls to minimize the potential for human or ecological exposure to contamination or to protect the integrity of a remedy, such land use controls may be implemented through a Notice of Activity and Use Limitation subject to the written approval of EPA and the Department. Such Notices of Activity and Use Limitation shall be implemented on a form or forms developed by the Department for such purpose, and shall include such additional terms as EPA and the Department may in writing approve to achieve the objectives of the selected remedy, and shall: (a) be subject to 310 CMR 40.0020(5), 310 CMR 40.1080(4), and those provisions of M.G.L. c. 21E, and 310 CMR 40.0000 that otherwise apply to Notices of Activity and Use Limitations, except for any such provisions that require the use of the forms contained in 310 CMR 40.1099, any such provisions that require such Notices of Activity and Use Limitation or any Amendment or Termination thereof to be signed by a Licensed Site Professional, and any such provisions applicable to Notices of Activity and Use Limitations contained in: 3.310 CMR 40.1005 through 310 CMR 40.1067;4.310 CMR 40.1080(1) and (2); and(b) incorporate the land use control requirements set forth in an institutional control design statement approved by EPA; and(c) be amended or terminated only by means of an Amendment of a Notice of Activity and Use Limitation or Termination of a Notice of Activity and Use Limitation, as applicable, approved in writing by EPA and the Department.(9) Compliance with the terms and conditions of a Notice of Activity and Use Limitation implemented at an adequately regulated disposal site pursuant to 310 CMR 40.0111(8) is subject to audit and enforcement pursuant to M.G.L. c. 21E and 310 CMR 40.0000 and M.G.L. c. 21A, § 16 and 310 CMR 5.00: Administrative Penalty.(10) Adequately regulated disposal sites subject to CERCLA, or portions of such disposal sites, will be considered to have reached a Permanent Solution for the purposes of M.G.L. 21E and 310 CMR 40.0000 under the following conditions: (a) Adequately regulated disposal sites that have reached site completion status pursuant to a Final Close-out Report approved by EPA pursuant to CERCLA and the NCP, or pursuant to an equivalent report approved by EPA and identified by the Department in writing, will be considered to have achieved a Permanent Solution.(b) Portions of adequately regulated disposal sites will be considered to have achieved a Permanent Solution for the purposes of M.G.L. c. 21E and 310 CMR 40.0000 when they: 1. are addressed pursuant to one or more Remedial Actions conducted under CERCLA and the NCP;2. have reached Remedial Action Completion status pursuant to a Remedial Action Report approved by EPA pursuant to CERCLA and the NCP, or pursuant to an equivalent report approved by EPA and identified by the Department in writing; and3. have reached all remedial action objectives and associated cleanup levels specified in the applicable ROD(s).(c) Portions of adequately regulated disposal sites that have reached a Permanent Solution pursuant to this 310 CMR 40.0111(10) may constitute a portion or the entirety of one or more Operable Units of the applicable disposal site under CERCLA and the NCP.(11) Adequately regulated disposal sites subject to CERCLA, or portions of such disposal sites, will be considered to have reached a Remedy Operation Status for the purposes of M.G.L. c. 21E and 310 CMR 40.0000 under the following conditions: (a) Adequately regulated disposal sites that have reached construction complete status pursuant to a Preliminary Close-out Report approved by EPA pursuant to CERCLA and the NCP, or pursuant to an equivalent report approved by EPA and identified by the Department in writing, and that have not yet reached a Permanent Solution pursuant to 310 CMR 40.0111(10) will be considered to have achieved Remedy Operation Status for the purposes of M.G.L. 21E, and 310 CMR 40.0000.(b) Portions of adequately regulated disposal sites will be considered to have achieved Remedy Operation Status for the purposes of M.G.L. 21E and 310 CMR 40.0000 when they: 1. are addressed pursuant to one or more Remedial Actions conducted under CERCLA and the NCP;2. have reached Remedial Action Completion status pursuant to a Remedial Action Report approved by EPA pursuant to CERCLA and the NCP, or pursuant to a similar report approved by EPA and identified by the Department in writing; and3. have not reached a Permanent Solution pursuant to 310 CMR 40.0111(10).(c) Portions of adequately regulated disposal sites that have reached Remedy Operation Status pursuant to this 310 CMR 40.0111(11) may constitute a portion or the entirety of one or more Operable Units of the applicable site under CERCLA and the NCP.Amended by Mass Register Issue 1503, eff. 3/1/2024.Amended by Mass Register Issue S1516, eff. 3/1/2024.Amended by Mass Register Issue 1519, eff. 4/12/2024.