Technical, Financial and Legal Inabilities

(1) General Requirements. Each RP and PRP, and any Other Person when such person is performing response actions under 310 CMR 40.0000, who has reason to believe that one or more necessary response actions are beyond his or her technical, financial or legal ability to perform shall promptly notify the Department in writing upon gaining knowledge of such inability. Each RP and PRP shall complete those response actions and portions of response actions which are within his or her technical, financial and legal ability to perform. Each RP and PRP shall make reasonable efforts to pursue civil and administrative procedures available to remedy each such technical, financial or legal inability. (2) No person may claim that any necessary response action is beyond his or her technical ability to perform unless he or she submits with such notice a Phase III Report prepared in accordance with 310 CMR 40.0850 which indicates that neither feasible Temporary Solutions, nor feasible Permanent Solutions, exist for the disposal site. (3) Upon obtaining reason to believe that one or more response actions are beyond his or her financial ability to perform, an RP or PRP shall undertake, to the extent that he or she has sufficient assets available, reasonable steps to: (a) implement one or more Temporary Solutions on all or portions of the site that will, at a minimum, prevent the exposure of persons to oil and/or hazardous materials and otherwise reduce the risks of harm posed by the disposal site to health, safety, public welfare and the environment; (b) implement one or more Temporary Solutions that will contain the further release or threat of release of oil and/or hazardous material from a structure or container; and (c) implement Immediate Response Actions to abate or prevent Imminent Hazards and/or to address a Condition of Substantial Release Migration. (4) Content of Notice. The notice required by 310 CMR 40.0172(1) shall include all of the following: (a) the name, location and Release Tracking Number(s) assigned by the Department to the site; (b) the name, address and telephone number of the RP, PRP or Other Person providing the notice; (c) a clear and concise statement of the facts which demonstrate such person's technical, financial or legal inability; (d) a plan prepared by an LSP for implementing the measures required by 310 CMR 40.0172(3) to the extent such person has sufficient assets available; and (e) a description, including but not limited to an implementation schedule, of the measures such person is taking, or intends to take, to remedy such inability. (5) Effect of Providing Notice. If the Department determines that: (a) a response action is beyond a RP's or PRP's technical, financial or legal ability to perform; and (b) such person has provided the notice required by 310 CMR 40.0172(4) in good faith, such inability shall be a defense to any civil administrative penalty that the Department seeks to assess for noncompliance arising out of such inability with any deadline or time period established pursuant to M.G.L. c. 21E, 310 CMR 40.0000 and/or any order, permit or approval issued thereunder, except a violation of any Notification Requirement, that commences after the date of the Department's receipt of such notice; provided, however, that this defense shall not be available for any violations that occur or continue after such inability ceases. The RP or PRP claiming anysuch inabilityshall have the burden of establishing such inability by a preponderance of the evidence in any such proceeding. (6) Submittal of the notice required by 310 CMR 40.0172(4) shall not relieve any person from any obligation for the cost of response actions related to the site for which that person is legally responsible or in any way affect any legal or equitable right of the Department to issue any future order with respect to the site that is the subject of the notice or any other claim, action, suit, cause of action or demand which the Department may have with respect to the site, except as provided by 310 CMR 40.0172(5). 40.0172: continued (7) Effect of Failure to Provide Notice. M.G.L. c. 21E, § 5(e) provides a defense to an action by the Commonwealth for recovery of two to three times the full amount of the Department's Response Action Costs against a Responsible Party. A person who fails to provide the notice required by 310 CMR 40.0172, or provides such notice without a good faith basis, may be held liable under M.G.L. c. 21E, § 5(e), for up to three times the full amount of the Department's Response Action Costs incurred with respect to the site at issue, plus litigation costs and attorneys' fees, in an action for recovery of those Costs by the Commonwealth.