Section 40.1220 - Recovery of Response Action Costs Incurred in Response ActionsThe provisions set forth in 310 CMR 40.1220 and 310 CMR 40.1221 shall govern the Commonwealth's recovery of Response Action Costs incurred pursuant to this Contingency Plan.
(1)Response Action Costs. Response Action Costs with regard to a specific site shall be calculated so as to reflect the actual cost of the Department's response actions. Such Costs shall be calculated as follows: (a) The total number of Direct Hours expended by each employee of the Department with regard to a specific site shall be multiplied by the employee's hourly rate, and then the figures derived for each Department employee shall be added together;(b) To the figure derived in 310 CMR 40.1220(1)(a) shall be added a figure derived by multiplying the total number of Direct Hours expended by all employees of the Department with regard to a specific site by the current Indirect Rate, which shall be calculated in accordance with 310 CMR 40.1221; and(c) All payments made by the Department to its Contractors, grantees or agents to plan, manage, direct or perform response actions with regard to a specific site shall be added to the figure derived pursuant to 310 CMR 40.1220(1)(a) and (b).(2)Recovery and Demand.(a) The Department may seek to recover Response Action Costs calculated pursuant to 310 CMR 40.1220(1), using any of the means described in M.G.L. c. 21E, 310 CMR 40.0000, or other applicable law. Any recovery of Costs by the Department shall not prevent the Department from incurring and recovering additional Response Action Costs.(b) The Department may make written demand for Response Action Costs with regard to a specific site to all RPs, PRPs and Other Persons after such costs have been calculated pursuant to 310 CMR 40.1220(1), and periodically thereafter.(3)Administrative Review.(a) The Department may, in its sole discretion, provide an opportunity for an informal conference to any person to whom the Department has made a demand for payment of Response Action Costs and who disputes the calculation or reasonableness of those Costs. Such review may provide an opportunity to present, at a minimum, written information regarding a disputed demand to the Department for its consideration.(b) The Department may impose reasonable time limits within which any person to whom the Department has made a demand for payment may request such administrative review.(c) An administrative review pursuant to 310 CMR 40.1220(3) shall not be construed to be an "adjudicatory proceeding" as defined by M.G.L. c. 21E or M.G.L. c. 30A and shall not be subject to 310 CMR 1.00: Adjudicatory Proceedings. Any conclusions reached by the Department as part of such review shall not be construed to be an order pursuant to M.G.L. c. 21E, §§ 9 or 10, unless the Department specifically and in writing states otherwise.(4)Interest Calculation. The Department shall seek to recover interest accrued on uncollected Response Action Costs at a rate of 1% per month, or 12% per year, commencing 45 days after the Department has made written request for payment of Costs. The Department shall compound the interest annually until the debt is paid or otherwise resolved. The Department may elect not to seek interest that accrues during an administrative review pursuant to 310 CMR 40.1220(3).(5)Treble Costs.(a) The Department may seek to recover from RPs and/or PRPs up to three times the Response Action Costs calculated pursuant to 310 CMR 40.1220(1), in accordance with M.G.L. c. 21E, § 5(e).(b) The Department, in its sole discretion, may elect not to seek treble costs from RPs and/or PRPs who pay Response Action Costs after demand is made pursuant to 310 CMR 40.1220(2)(b).(6)Using Consent Orders to Set a Maximum for Response Action Costs to Be Recovered. The Department may enter into an administrative consent order with RPs, PRPs or Other Persons governing response actions at a site pursuant to M.G.L. c. 21E, §§ 9 or 10. If the Department is able to estimate future Response Action Costs at a disposal site with a reasonable degree of certainty, the Department may, in its sole discretion and subject to terms and conditions, agree as a part of such consent order upon an amount which shall be the maximum Response Action Cost the Department will seek to recover from such RPs, PRPs or Other Persons for work to be performed pursuant to the provisions of that consent order.Amended by Mass Register Issue 1503, eff. 3/1/2024.Amended by Mass Register Issue S1516, eff. 3/1/2024.