Section 40.0170 - The Role of RPs, PRPs and Other Persons in Response Actions(1) RPs, PRPs, and secured lenders and fiduciaries who hold title to or possession of a site or vessel, shall notify the Department of a release or threat of release of oil and/or hazardous material and of any Imminent Hazards in accordance with 310 CMR 40.0300.(2) RPs, PRPs and Other Persons shall obtain all necessary permits and approvals before undertaking a response action.(3) No person shall undertake any response action for which a permit or approval has been issued by the Department in any manner not in conformance with the terms and conditions thereof.(4) RPs, PRPs and Other Persons shall perform response actions in accordance with the following: (a) except as expressly provided by 310 CMR 40.0000, each and every response action shall be properly and promptly performed within deadlines prescribed by, or pursuant to, M.G.L. c. 21E and/or 310 CMR 40.0000, including any Interim Deadlines;(b) each RP, PRP or Other Person, or group of RPs, PRPs or Other Persons, who is undertaking or intends to undertake one or more response actions shall participate in and/or conduct, whichever is applicable, Public Involvement Activities in accordance with M.G.L. c. 21E, § 14, 310 CMR 40.1400 and any other applicable requirements; and(c) each RP, PRP or Other Person, or group of RPs, PRPs or Other Persons, performing a response action shall identify all permits, licenses or other approvals which may be required by any local, state or federal agency, and any agreements necessary to conduct a response action, and shall proceed to obtain the necessary permits, licenses, approvals, and agreements sufficiently far in advance of deadlines imposed by M.G.L. c. 21E, 310 CMR 40.0000 or any other applicable requirements to enable him or her to complete response actions by such deadlines.(5) Where necessary to ensure the timely and proper performance and completion or response actions, the Department may require that a RP, PRP or Other Person undertaking response actions provide assurance to the Department that the RP, PRP or Other Person has sufficient financial resources to perform the response action or a specific portion thereof. The Department may require such persons to provide such financial assurance at any time during the performance of a response action. Examples of the financial assurance mechanisms which may be required by the Department include, but are not limited to, trust funds, stand-by trust funds, letters of credit, escrow deposits and surety bonds.(6) In the event that a RP or PRP requests an opportunity to perform a response action at any time after the Department has commenced a response action, the Department may require that the RP or PRP either pay, or provide a financial assurance mechanism for the payment of, all Costs the Department has incurred in connection with the disposal site prior to allowing the RP or PRP to conduct the remainder of the response action.(7) The Department may refuse to allow a RP, PRP or Other Person to perform a response action, unless the Department is persuaded that:(a) the RP, PRP or Other Person will comply with the deadlines and time periods for taking such actions imposed by M.G.L. c. 21E, 310 CMR 40.0000 and/or any order, permit or approval issued by the Department;(b) the RP's, PRP's or Other Person's performance of the response action will not result in or cause a hazard, or exacerbate an existing hazard, to health, safety, public welfare or the environment;(c) the RP, PRP or Other Person will otherwise conduct the response action in accordance with M.G.L. c. 21E, 310 CMR 40.0000 and other applicable laws; and(d) the RP, PRP or Other Person has a satisfactory record of compliance with the statutes, regulations and other requirements administered or enforced by the Department.(8) The Department may enter into a consent order with a RP, PRP or Other Person which sets forth necessary response actions, time periods and deadlines for the performance thereof and requirements for submittals to the Department. Each such consent order may include provisions regarding contribution protection, site access, cost recovery, processes for resolving disputes arising under such consent order, and any other matter.(9) Other Persons undertaking response actions at sites may discontinue such response actions without being deemed by the Department to have acquired liability under M.G.L. c. 21E solely on the basis of having voluntarily conducted such response actions, and without being deemed in noncompliance with future deadlines, provided such persons:(a) notify the Department in writing of their intent to discontinue response actions at the site prior to the running of an applicable deadline;(b) submit a Status Report to the Department informing the Department of the status of the work conducted at the site at the time of providing the notice required by 310 CMR 40.0170(9); and(c) do not cause or contribute to the release at the disposal site or cause the release, or the disposal site, to become worse than it otherwise would have been had such response actions not been performed. In the event an Other Person is conducting response actions at a disposal site pursuant to a Tier I or Tier II Classification, the Department will stop assessing such Other Person annual compliance assurance fees upon the Department's receipt of the notice and Status Report required by 310 CMR 40.0170(9)(a) and (b); provided however, that payment of such fees shall be required for the billable year in which such notice and Status Report is received.
(10) No provision of 310 CMR 40.0000 shall be construed to imply that only one person may undertake response actions at a disposal site.Amended by Mass Register Issue 1503, eff. 3/1/2024.Amended by Mass Register Issue S1516, eff. 3/1/2024.