Section 40.0317 - Releases and Threats of Release Which Do Not Require NotificationNotwithstanding the provisions of 310 CMR 40.0311 through 310 CMR 40.0315, the following releases and threats of release of oil and/or hazardous material are exempt from the notification requirements set forth in 310 CMR 40.0300:
(1) releases of oil that occur during normal handling and transfer operations at an oil facility captured by a properly functioning oil/water separator; provided however, that releases of oil that exceed the capacity of the oil/water separator and releases of oil from the oil/water separator itself which are in excess of its discharge permit limits or in a quantity equal to or greater than the Reportable Quantity shall be subject to the notification requirements set forth in 310 CMR 40.0300;(2) releases or threats of release of gasoline or diesel fuel that result from the rupture of the fuel tank of a passenger vehicle as a result of an accident involving that vehicle;(3) releases of oil and/or hazardous material that are discharged or emitted from an outfall, stack or other point source, or as fugitive emissions, any of which are regulated under and have received a valid permit, license, or approval, or which are operating under a valid registration, order or guideline issued under a federal or state statute or regulation, unless the release:(a) exceeds the amount allowed by the permit, license, approval, registration, order or guideline; and(b) represents an Imminent Hazard to health, safety, public welfare or the environment. This provision shall not relieve any person from any other duty to notify which may exist under any other statute or regulation, nor shall it in any way limit the authority of any other agency, political subdivision or authority of the federal or state government or of any office or division of the Department to enforce or otherwise carry out the duties assigned to it by law;(4) releases of radionuclides regulated by EPA under 42 USC § 9602, 33 USC §§ 1321 and 1361, and 40 CFR Part 302 et seq.;(5) releases of forbidden Class A or Class B explosives as defined in 49 CFR §§ 173.50, 173.53 and 173.88 respectively, if the explosives are under military transport or supervision and the U.S. Army Explosive Ordnance responds to the release;(6) releases of methane, propane and other component compounds associated with a release of natural gas, natural gas liquids and liquified natural gas;(7) sheens: (a) resulting from emissions or discharges from outboard motors in recreational use; or(b) associated with normal surface water runoff from roadways, driveways and parking lots;(8) releases of hazardous material indicated by residues in the environment:(a) emanating from a point of original application of lead-based paint;(b) resulting from emissions from the exhaust of an engine; or(c) resulting from the application of pesticides in a manner consistent with their labelling;(9) releases of oil and/or hazardous material related to coal, coal ash, or wood ash, excluding wood ash resulting from the combustion of lumber or wood products that have been treated with chemical preservatives;(10) releases of oil and/or hazardous material resulting from the land application, reuse, or disposal of wastewater residuals and/or dredged spoils conducted in accordance with an approval, permit or certification issued by the Department under the authority of 310 CMR 32.00: Land Application of Sludge and Septage, 314 CMR 9.00: 401 Water Quality Certification for Discharge of Dredged or Fill Material, Dredging, and Dredged Material Disposal in Waters of the United States within the Commonwealth, M.G.L. c. 21, §§ 26 through 53, M.G.L. c. 21A, § 14, M.G.L. c. 83, §§ 6 and 7 and M.G.L. c. 111, § 17;(11) releases of oil and/or hazardous material in groundwater detected by sampling conducted by Public Water Supply owners or operators under 310 CMR 22.00: Drinking Water as indicated by the presence of oil and/or hazardous material in a public water supply source;(12) releases of oil and/or hazardous material resulting or emanating from: (a) the asphalt binder in bituminous pavement;(b) piers, pilings and building foundation structures;(c) landscaping timbers in use;(d) utility poles in use; or(e) building materials that are in good repair and still serving their original intended use;(13) releases indicated solely by the presence of oil and/or hazardous material in soils that are treated, recycled, reused or disposed of at a facility licensed, permitted or approved by the Department, provided that: (a) the soil has been excavated and transported either from a disposal site in compliance with 310 CMR 40.0000, or from a location that is not a disposal site, in compliance with all applicable laws, regulations and license, permit or approval requirements; and(b) the facility is operated in a manner consistent with the terms and conditions of its license, permit or approval;(14) releases of oil and/or hazardous material that require notification solely because an RP, PRP or Other Person obtains knowledge of media concentrations and/or site conditions that meet one or more of the sets of criteria set forth in 310 CMR 40.0311 through 310 CMR 40.0315, when such media concentration value(s) and/or knowledge of site conditions resulted from a sampling, analytical or observational error, as established by a preponderance of the evidence and/or as verified by additional sampling, analyses, and/or observation, within the applicable time period for notification;(15) releases of oil and/or hazardous material that require notification solely because an RP, PRP or Other Person obtains knowledge of soil concentrations equal to or greater than one or more applicable Reportable Concentrations, as specified in 310 CMR 40.0315, where a Limited Removal Action conducted under the provisions of 310 CMR 40.0318 has reduced soil concentrations of oil and/or hazardous material at the disposal site to an amount less than the Reportable Concentration(s), within the allowable time period for notification;(16) releases indicated by the presence of oil and/or hazardous material in concentrations or quantities which would otherwise meet one or more of the sets of criteria set forth in 310 CMR 40.0313 through 310 CMR 40.0315 at a disposal site where: (a) a response action is being undertaken in compliance with the provisions of 310 CMR 40.0000 to address such release;(b) a release notification was previously provided to the Department for the disposal site on which the release has been observed or documented; and(c) such presence of oil and/or hazardous material is consistent with the types, nature, exposure potential and quantities of oil and/or hazardous material for which that notification was provided to the Department;(17) releases indicated by the presence of oil and/or hazardous material at disposal sites for which a determination or statement as specified in 310 CMR 40.0317(17)(a) through (f) has been provided, in concentrations that would otherwise meet one or more of the sets of criteria set forth in 310 CMR 40.0313 or 310 CMR 40.0315, unless the presence of such oil and/or hazardous material would negate or change such determinations or statements were that presence taken into account in the preparation thereof, or changes in activities, uses, and/or exposures at the disposal site require notification to the Department pursuant to the provisions of 310 CMR 40.0020. In this context, determinations or statements include: (a) a disposal site where a Permanent Solution Statement has been submitted to the Department, in compliance with the provisions of 310 CMR 40.1000;(b) a disposal site where a Class A or Class B Response Action Outcome Statement has been submitted to the Department in compliance with the provisions of 310 CMR 40.1000;(c) a disposal site where a No Further Action Letter has been submitted to the Department, in compliance with the provisions of 310 CMR 40.0600;(d) a disposal site where the Department has made a written determination that no further actions are required;(e) a disposal site where an LSP Evaluation Opinion has been submitted to the Department in compliance with 310 CMR 40.0600 stating either that the site is not a disposal site for which notification is required pursuant to 310 CMR 40.0300 and no further response actions are required or that completed response actions meet the requirements of a Response Action Outcome; or(f) a disposal site where a Waiver Completion Statement has been submitted to the Department, in compliance with the provisions of 310 CMR 40.537 and/or 310 CMR 40.0630.(18) threats of release indicated by the outcome of tank tests specified in 310 CMR 40.0314, where a tank test outcome has resulted from a testing error, as documented within the allowable time period for notification by an additional test conducted on identical and unrepaired underground storage tank system elements;(19) releases of oil and/or hazardous material to:(a) an underground utility vault if such releases are completely contained within the vault; or(b) the interior of a building, provided such releases are completely contained within the building;(20) releases of trihalomethanes (chloroform, bromodichloromethane, dibromochloromethane or bromoform) in groundwater attributable to naturally-occurring ecological processes or leakage or discharges from a public water supply system based on appropriate lines of evidence;(21) releases of oil or waste oil of less than a Reportable Quantity that result in a sheen on a surface water, provided that: (a) federal officials receive notice of such release pursuant to the Federal Water Pollution Control Act as amended;(b) a response occurs as directed by those federal officials and according to other federal, state or local requirements applicable to such a release and response;(c) the sheen does not persist for more than 24 consecutive hours; and(d) the sheen does not recur at the same location within any 30-day period; and(22) arsenic, beryllium or nickel in Boston Blue Clay or arsenic in an area documented by the U.S. Geological Survey or in other scientific literature as an area of elevated arsenic measured in soil or groundwater that (a) is consistently present in the environment at and in the vicinity of the sampling location;(b) is solely attributable to natural geologic or ecologic conditions; and(c) has not been mobilized or transferred to another environmental medium or increased in concentration in an environmental medium as a result of anthropogenic activities.(23) releases of propane, provided that such releases are managed according to the Massachusetts Division of Fire Services gas leak Emergency and Reporting Procedure in 527 CMR 6.00: Liquefied Petroleum Gas Containers and Systems.(24) releases of liquid nitrogen or liquid oxygen, provided that such releases are managed according to requirements specified by local public safety officials overseeing the response to such releases.Amended by Mass Register Issue 1503, eff. 3/1/2024.Amended by Mass Register Issue S1516, eff. 3/1/2024.