Violations of a Permanent Solution or Temporary Solution

(1) If the activities, uses, and/or exposures upon which a Permanent Solution or Temporary Solution Statement is based change at any time to cause human or environmental exposure, or an increased potential for human or environmental exposure, to oil and/or hazardous material, without an evaluation by an LSP in accordance with 310 CMR 40.1080, where applicable, and without additional response actions, if necessary, to achieve or maintain a condition of No Significant Risk or No Substantial Hazard, then the owner and operator of the property or properties subject to the Permanent Solution or Temporary Solution Statement at the time that the activities, uses, and/or exposures change, and any person liable under M.G.L. c. 21E for the disposal site who has knowledge of such, shall: 40.0020: continued (a) notify the Department, in accordance with the procedures set forth in 310 CMR 40.0300, immediately upon gaining knowledge of any of the following: 1. any such change in activity, use and/or exposure; 2. any level of oil and/or hazardous material above an applicable Reportable Concentration; 3. any release and/or threat of release of oil and/or hazardous material that results from any such change in activity or use; or 4. any Imminent Hazard that results from such activities, uses, and/or exposures; and (b) undertake any and all response actions required by M.G.L. c. 21E, and 310 CMR 40.0000. (2) For purposes of identifying and holding persons responsible for Response Action Costs and damages arising out of the violation of 310 CMR 40.0020(1), the Department shall consider taking action only against those persons who violated, suffered, allowed or caused such persons to violate, such provision. In determining whether to initiate enforcement action against any other person who may be liable for such costs or damages under M.G.L. c. 21E, the Department shall consider the factors set forth in 310 CMR 40.0019(2). (3) No provision of 310 CMR 40.0000 shall be construed to limit the Department's authority to take or arrange, or to require any RP or PRP to perform, any response action authorized by M.G.L. c. 21E which the Department deems necessary to protect health, safety, public welfare or the environment. (4) No provision of 310 CMR 40.0000 shall be construed to relieve any person from any obligation for Response Action Costs or damages related to a site or disposal site for which that person is liable under M.G.L. c. 21E or from any obligation for any administrative, civil or criminal penalty, fine, settlement, or other damages. (5) If the activities, uses, and/or exposures upon which the selected remedy is based at any adequately regulated disposal site subject to CERCLA at which a Notice of Activity and Use Limitation has been implemented change at anytime to cause human or environmental exposure, or an increased potential for human or environmental exposure, to oil and/or hazardous material, without an evaluation by a qualified hazardous waste site cleanup professional, or without additional response actions, in each case as required by 310 CMR 40.1080(4), then the owner and operator of the property or properties at which the Notice of Activity and Use Limitation has been implemented, and any person liable under M.G.L. c. 21E for the disposal site who has knowledge of such change in activity, use and/or exposure, shall: (a) notify the Department in accordance with the procedures set forth in 310 CMR 40.0300 and EPA Region 1 in writing immediately upon gaining knowledge of any such change in activity, use and/or potential exposure; and (b) undertake any and all necessary response actions, including any response actions necessary to restore the remedy selected under CERCLA and any Permanent Solution or Remedy Operation Status that may have existed at such disposal site pursuant to 310 CMR 40.0111(10) or 310 CMR 40.0111(11) prior to such change in activities, uses and/or exposures.