General Requirements and Procedures for Asserting Downgradient Property Status

(1) General. Any person who meets the requirements of, and complies with the procedures in, 310 CMR 40.0183 and 40.0185 shall have Downgradient Property Status for purposes of 310 CMR 40.0184, unless and until such Status is terminated in accordance with 310 CMR 40.0186. (2) Criteria. Any present or past owner or operator of a downgradient or downstream property where a release of oil and/or hazardous material has come to be located may provide a Downgradient Property Status Submittal to the Department if all of the following are met: (a) such person has notified the Department of the release if notification is required by 310 CMR 40.0300; (b) the source of the release of oil and/or hazardous material at the downgradient or downstream property is or was located on one or more upgradient or upstream location(s) and oil and/or hazardous material from that location(s) has come to be located at the downgradient or downstream property as a result of migration of the oil and/or hazardous material in or on groundwater or surface water, regardless of whether the upgradient or upstream location(s) which is the source has been identified as the source of the release(s); (c) no act of such person has contributed to the release described in 310 CMR 40.0183(2)(b), or caused such release to become worse than it otherwise would have been; 40.0183: continued (d) such person is not, and was not at any time, affiliated with any other person: 1. who owned or operated the property from which the release described in 310 CMR 40.0183(2)(b) originated, or caused such release; and 2. who is potentially liable under M.G.L. c. 21E for the disposal site through any direct or indirect contractual, corporate or financial relationship other than: a. that established by any instrument creating such person's interest in the downgradient property; or b. that established by an instrument wholly unrelated to the disposal site and which would not otherwise render such person potentially liable as a result of the relationship; and (e) to the extent such person has performed response actions at the disposal site, those response actions have been performed in compliance with the requirements and procedures in M.G.L. c. 21E and 310 CMR 40.0000. (3) Content of Submittal. A Downgradient Property Status Submittal shall consist of the following: (a) a completed transmittal form established by the Department for such purposes; (b) a Downgradient PropertyStatus Opinion prepared in accordance with 310 CMR 40.0015 and 310 CMR 40.0183(4); (c) the certification required by 310 CMR 40.0009; and (d) the fee, if applicable, required by 310 CMR 4.03: Annual Compliance Assurance Fee. (4) Performance Standard for a Downgradient Property Status Opinion. A Downgradient Property Status Opinion shall be based on investigative and assessment actions of sufficient scope and level of effort to conclude that the criteria in 310 CMR 40.0183(2)(b) have been met. The Opinion shall include an explanation and documentation of the technical basis for the conclusions stated therein, and be based on the following: (a) an evaluation of the boundaries of the property which is the subject of the Opinion; (b) an evaluation of the disposal site boundaries, to the extent they have been defined by assessments conducted to date; (c) an evaluation of the releases of oil and/or hazardous material at the disposal site, to the extent that such releases have been identified; (d) an evaluation of the relevant hydrogeologic conditions, including, at a minimum, groundwater flow direction and local transport characteristics based on field data, when migration of oil and/or hazardous material has occurred via groundwater; (e) a plan showing the downgradient or downstream property and the disposal site boundaries (to the extent known), the locations of any known or suspected source(s) of oil and/or hazardous material(s) release(s) that have come to be located at the downgradient or downstream property, the direction of groundwater flow and/or surface water flow (as appropriate), the locations where samples were collected for analysis, and the results of the analyses; and (f) an evaluation of the need to conduct an Immediate Response Action, as defined in 310 CMR 40.0412. (5) Notice to Abutters and PRPs. Prior to, or concurrent with, providing the Downgradient Property Status Submittal to the Department, the person providing such Submittal shall provide a copy of the Downgradient Property Status Opinion to each of the following persons: (a) the owners and operators of abutting property upgradient and downgradient from the property which is the subject of the Submittal and, where the abutting upgradient and/or downgradient property is a public way, the owners and operators of the next upgradient and/or downgradient property; and (b) the owners and operators of any property which is a known or suspected source of the release. (6) Public Involvement. Public Involvement Activities shall be conducted in accordance with 310 CMR 40.1400. Public Involvement Activities required for Downgradient Property Status specifically include 310 CMR 40.1403(3)(g).