Section 40.1071 - Grants of Environmental Restrictions for Disposal Sites Where a RP, PRP or Other Person Conducts Response Actions(1)General Requirements At any disposal site or portion of a disposal site where a RP, PRP or Other Person is conducting a response action(s) for which a Grant of Environmental Restriction has been selected as a form of Activity and Use Limitation pursuant to 310 CMR 40.1070, the following requirements shall be met:(a) the Grant of Environmental Restriction shall be prepared using Form 1072A set forth in 310 CMR 40.1099;(b) an Activity and Use Limitation Opinion from a Licensed Site Professional shall be submitted on a form prescribed by the Department with each Grant of Environmental Restriction as an exhibit of the Restriction and shall specify:1. why the Grant of Environmental Restriction is appropriate to: a. achieve and/or maintain a level of No Significant Risk for a Permanent Solution; orb. achieve a condition of No Substantial Hazard for a Temporary Solution;2. Site Activities and Uses to be prohibited and/or restricted;3. Site Activities and Uses to be permitted; and4. obligations and conditions necessary to meet the objectives of the Grant of Environmental Restriction;(c) the Grant of Environmental Restriction shall be submitted to the Department for the Commissioner's signature with the applicable fee pursuant to 310 CMR 4.00; and(d) the Grant of Environmental Restriction, signed by the Commissioner, shall be recorded and/or registered as specified in 310 CMR 40.1071(3). Acceptance of any such Restriction shall not be construed or deemed to imply Department approval of the adequacy of any response actions performed at the disposal site.(2)Contents of a Grant of Environmental Restriction A Grant of Environmental Restriction shall contain the following information:(a) a description of the property and disposal site, including: 1. the location of the property and its street address;2. a metes and bounds description of the parcel(s) of land which contain(s) the area that is subject to the Grant of Environmental Restriction;3. a reference to a survey plan of such parcel(s) of land, prepared by a Massachusetts Registered Land Surveyor, that has been recorded as a plan with the appropriate registry of deeds and/or to a Land Court Plan;4. if the area subject to the Grant of Environmental Restriction (i.e. "the Restricted Area") comprises only a portion of the property described in 310 CMR 40.1071(2)(a)2, a metes and bounds description of the Restricted Area; and: a. (for registered land only) an 81/2" x 11" survey plan, prepared by a Massachusetts Registered Land Surveyor, which shows the metes and bounds of the Restricted Area, attached as an exhibit to the Grant of Environmental Restriction; orb. (for unregistered land only) a reference to a survey plan of the Restricted Area, prepared by a Massachusetts Registered Land Surveyor, that has been recorded as a plan with the appropriate registry of deeds;5. an 81/2" x 11" sketch plan showing the location of the Restricted Area in relation to the boundaries of the disposal site to the extent that the boundaries of the disposal site have been established.(b) name(s) of the property owner(s);(c) if a person(s) signing the Grant of Environmental Restriction is not an individual signing on his or her own behalf, but rather on behalf of an entity (LLC, LLP, limited partnership, etc.), or as trustee, executor, or attorney in fact, documentation consistent with conveyancing standards and practices verifying that the person(s) signing the Grant of Environmental Restriction has the authority to sign such document shall be submitted as an exhibit to the Grant of Environmental Restriction verifying that the person(s) signing the grant is authorized to do so. If the property owner is a corporation, such documentation shall consist of:1. a Clerk's Certificate of Incumbency from the clerk of the corporation certifying that the person(s) signing the Grant of Environmental Restriction on behalf of the corporation held his or her position as of the date of the Grant of Environmental Restriction; and2. unless the corporate person(s) signing the Grant of Environmental Restriction holds the position of both president or vice president and treasurer or assistant treasurer, a Clerk's Certificate from the clerk or secretary of the corporation certifying a corporate vote, resolution, or by-law authorizing the person(s) to do so;(d) the disposal site name and DEP Release Tracking Number(s);(e) a statement that the Grant of Environmental Restriction is a gift to the Department pursuant to M.G.L. c. 21E, § 6;(f) a statement that the Grant of Environmental Restriction shall be binding upon the property owner and any parties claiming by, through, or under said owner, and shall inure to the benefit of all parties claiming by, through or under the Department;(g) an Activity and Use Limitation Opinion that meets the requirements of 310 CMR 40.1071(1)(b);(h) a statement that the Grant of Environmental Restriction shall run in perpetuity or for a specified number of years, and that the Environmental Restriction conforms to M.G.L. c. 184, § 26;(i) a precise description of the Site Activities and Uses which in accordance with the Activity and Use Limitation Opinion are restricted on the property such as: 1. construction or placement of buildings, utilities, roadways, parking lots or other structures;2. excavating, dredging or otherwise removing sediments, soils, loam, peat, sand, gravel, rock or other mineral substance;3. planting, removal or destruction of trees, shrubs, or other vegetation;4. using a private well to supply groundwater for human consumption; or5. other Site Activities and Uses which would likely result in significant risk or a substantial hazard from exposures to oil and/or hazardous material if the Site Activity and Use were to take place on the property;(j) a precise description of the obligations and conditions which, in accordance with the Activity and Use Limitation Opinion, are necessary to meet the objectives of the Grant of Environmental Restriction. Such obligations may include the continued proper operation of remedial actions, specific procedures governing excavation activities to protect workers and disposal site neighbors, and the erection and maintenance of fences to prohibit access of unauthorized persons to the disposal site;(k) a precise description of Site Activities and Uses, which, in accordance with the Activity and Use Limitation Opinion, may be permitted on the subject property including, without limitation, specific provisions for purposes of maintenance, alteration, or repair of utilities, or specific types of land uses;(l) except where the property to be restricted is not part of a disposal site, procedures to be followed when an emergency requires immediate excavation of contaminated soil to repair utility lines or other infrastructure on the disposal site, or to respond to other types of emergencies (e.g., fire or floods) that may result in a significant risk of harm from exposure to oil and/or hazardous material at the disposal site, including: 1. notifying the Department within two hours of obtaining knowledge of such emergency condition;2. limiting disturbance of contaminated media to the minimum reasonably necessary to adequately respond to the emergency; and3. undertaking specified precautions to minimize exposure of workers and neighbors of the disposal site to contaminated media (e.g., the need for specific types of protective clothing for workers conducting the excavation, and procedures for minimizing the liberation of contaminated dust); and4. engaging the services of an LSP to prepare or supervise preparation and implementation of a written plan for restoring the site to a condition consistent with the Grant of Environmental Restriction, and to review and evaluate response actions to ensure minimal disturbance of contaminated media. A copy of such plan shall be submitted to the Department within ten days of its execution, with an Opinion that establishes whether the property subject to the Grant of Environmental Restriction has been restored to a condition consistent with the Grant of Environmental Restriction.(m) easements for the term of the Grant of Environmental Restriction to the Department, its agents, contractors, subcontractors, and employees for purposes of providing access to the subject property to inspect the area subject to the Grant of Environmental Restriction to ensure compliance with its terms, and to conduct response actions consistent with M.G.L. c. 21E, and 310 CMR 40.0000;(n) a provision that the Grant of Environmental Restriction shall run with the land;(o) an agreement to incorporate either in full or by reference the Grant of Environmental Restriction into all future deeds, easements, mortgages, leases, licenses, occupancy agreements, or any other instruments conveying an interest in and/or a right to use the property;(p) the procedures for amending and releasing the Grant of Environmental Restriction as described in 310 CMR 40.1080 and 310 CMR 40.1083;(q) title reference by which the property owner(s) acquired title to the property; and(r) the notarized signature(s) of the property owner(s), the notarized signature and seal of the LSP who signed the Activity and Use Limitation Opinion, and the signature of the Commissioner.(3)Recording/Registering Grants of Environmental Restriction. The Grant of Environmental Restriction shall be recorded and/or registered in accordance with the following: (a) the Grant of Environmental Restriction shall be duly recorded and/or registered by the property owner in the appropriate Registry of Deeds and/or Land Registration Office within 30 days of the property owner's receipt from the Department of the Grant of Environmental Restriction as approved; and(b) within 30 days of recording and/or registering any Grant of Environmental Restriction, the property owner shall submit to the Department: 1. a certified Registry copy of the Grant of Environmental Restriction bearing the book and page/instrument number and/or document number; and2. a Registry copy of the required survey plan(s) referenced in the Grant of Environmental Restriction, bearing the plan book/plan number(s);(4)Subordination Agreement The property owner shall obtain and record one or more Subordination Agreements, using Form 1072B set forth in 310 CMR 40.1099, to ensure that the respective interests in the property are subordinated to the Grant of Environmental Restriction. Any Subordination Agreement(s) shall be recorded and/or registered in the appropriate Registry of Deeds and/or Land Registration Office immediately after the recording and/or registration of the Grant of Environmental Restriction. Subordination Agreements shall be obtained from: (a) any and all holders of a prior interest in the Restricted Area, and(b) from any and all holders of a prior interest in the Property insofar as such interest affects those interests created under the Grant of Environmental Restriction.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.