Section 40.0860 - Feasibility Evaluations(1) The criteria described in 310 CMR 40.0860 apply to: (a) evaluating the feasibility of implementing a Permanent Solution;(b) evaluating the feasibility of reducing the concentrations of oil and hazardous material in the environment to levels that achieve or approach Background;(c) evaluating the feasibility of reducing the concentrations of oil and hazardous material in soil at a disposal site to levels at or below applicable soil Method 3 Ceiling Limits;(d) evaluating the feasibility of eliminating, preventing or mitigating Critical Exposure Pathway(s); and(e) evaluating the feasibility of eliminating or controlling each Source of OHM Contamination, controlling migration of OHM, and removing NAPL at a disposal site in support of a Permanent or Temporary Solution pursuant to 310 CMR 40.1003(5) through (7), respectively.(2) An evaluation of the feasibility of implementing a Permanent Solution shall be performed in all cases where the selected Comprehensive Remedial Alternative will achieve a Temporary Solution.(3) An evaluation of the feasibility of reducing the concentrations of oil and hazardous material in the environment at the disposal site or a portion of the disposal site to levels that achieve or approach Background shall be conducted in all cases where the Comprehensive Remedial Alternative is selected to achieve a Permanent Solution unless the Permanent Solution selected is designed to achieve and achieves Background.(4) An evaluation of the feasibility of reducing the concentrations of oil and hazardous material in soil at the disposal site to levels at or below the applicable soil Method 3 Ceiling Limits shall be conducted before a Comprehensive Remedial Alternative is selected as a Permanent Solution that would leave oil and/or hazardous material in soil at concentrations above the soil Method 3 Ceiling Limits at a depth greater than 15 feet below the ground surface or beneath an Engineered Barrier pursuant to 310 CMR 40.0998.(5) A Comprehensive Remedial Alternative that would achieve a Permanent Solution and other response actions listed in 310 CMR 40.0860(1) shall be considered feasible, unless: (a) the alternative is not technologically feasible, as specified in 310 CMR 40.0860(6);(b) the costs of conducting, or the risks resulting from the alternative would not be justified by the benefits, considering such factors as potential damage to human health or the environment, cost of environmental restoration, long term operation and maintenance costs, and non-pecuniary values as determined by the benefit-cost analysis in 310 CMR 40.0860(7);(c) individuals with the expertise needed to effectively implement the alternative would not be available, regardless of arrangements for securing their services;(d) the alternative would necessitate land disposal other than at the site itself and no off-site facility is available in the Commonwealth or in other states that is in full compliance with all applicable federal and state regulatory requirements; or(e) an alternative is selected for a portion of a disposal site for which the source of the oil and/or hazardous material is not located thereon, and the elimination or control of such source cannot currently be achieved by the party conducting the response actions at that portion of the disposal site. In such instances, a Temporary Solution shall be implemented for that portion of the disposal site to which the selected alternative applies.(6)Technological Feasibility. A Comprehensive Remedial Alternative and other response actions listed in 310 CMR 40.0860(1) shall be considered technologically feasible, unless: (a) existing technology or reasonable modifications of existing technology cannot remediate the oil and hazardous material present at the disposal site to the extent necessary to attain a level of No Significant Risk or, when required to be considered, to levels that approach or achieve Background;(b) the reliability of the identified alternative has not been sufficiently proven at other sites or through pilot tests and a substantial uncertainty exists as to whether it will effectively reduce risk; or(c) the identified alternative cannot comply with or be modified to comply with applicable regulatory requirements.(7)Benefit-cost Analysis. The benefits of implementing Comprehensive Remedial Alternatives to achieve a Permanent Solution or Temporary Solution or of implementing other response actions listed in 310 CMR 40.0860(1) shall justify the related costs unless: (a) the incremental cost of conducting the Comprehensive Remedial Alternative or other response action is substantial and disproportionate to the incremental benefit of risk reduction, environmental restoration, and monetary and non-pecuniary values;(b) the risk of harm to health, safety, public welfare or the environment posed by the implementation of the alternative cannot be adequately controlled; or(c) the alternative would destroy more than 5000 square feet of wetlands or wildlife habitat, or would otherwise result in a substantial deleterious impact to the environment and: 1. other feasible Temporary or Permanent Solutions exist;2. the oil and/or hazardous materials, if any, that have come to be located in such resources do not bio-accumulate and are not likely to migrate; and3. the damage to such resources resulting from the implementation of the alternative would be permanent and irreparable.Amended by Mass Register Issue 1503, eff. 3/1/2024.Amended by Mass Register Issue S1516, eff. 3/1/2024.