Response Actions: Costs, Expenses, and Obligations Allowable for Reimbursement

503 CMR 2.11 governs Reimbursements to Eligible Claimants for reasonable and appropriate costs, expenses, and obligations for Response Actions pursuant to M.G.L. c. 21J, § 4(a)(1). (2) To be eligible for Reimbursement, all costs, expenses or obligations must be: (a) Incurred by or on behalf of an Eligible Claimant; (b) In excess of the Deductible Limit; (c) In compliance with 503 CMR 2.16; (d) Incurred for Response Actions performed after April 1, 1991; (e) Reasonable and appropriate as described in 503 CMR 2.11(3); and (f) Incurred as a part of a Response Action to an Eligible Release. (3) Allowable Costs. (a) The costs of the following activities are allowable for Reimbursement from the Fund as a part of a Response Action: 1. Rental, lease or purchase of any remediation equipment in accordance with Reimbursement Fee Schedule in the amount of $5,000 or more, subject to the following conditions: a. The Claimant shall determine whether purchase is more cost-effective than a lease and the Claimant shall, upon request of the Board, furnish supporting documentation to the Board of its determination; b. The Claimant shall maintain adequate property casualty insurance equal to the full replacement value of the remediation equipment, not including deductibles or it must provide notice to and demonstrate to the Board its capacity to self-insure the remediation equipment. Upon request, the Claimant shall furnish a copy of the insurance declarations page or other acceptable documentation to the Board attesting to insurance coverage. Title to the equipment remains with Claimant and Claimant agrees that upon conclusion of its use the Claimant shall notify the Board of its intention for final disposition of the equipment. If the equipment is sold or exchanged for services or other products or materials, the proceeds of the sale or the equivalent value of the exchange shall be reimbursed to the Fund. c. If directed by the Board, Claimant agrees to convey and dispose of the equipment as directed by the Board at the conclusion of its use. The Claimant shall possess and/or operate any rented, leased or purchased equipment solely at its own risk. Installation of test borings, monitoring wells, recovery wells and/or injection or extraction wells. 3. Removal, treatment, transport, reuse, recycling and/or disposal of Petroleum Products and Petroleum Product contaminated media and debris, including sludge, outside the UST System. 4. Provide for a temporary, permanent, or alternative potable drinking water supply to replace a potable drinking water supply that was contaminated by Petroleum Products. Development of assessment and remediation plans, including pilot testing and treatability tests. Treatment, transport, reuse, recycling and/or disposal of Petroleum Product contaminated ground water and/or soil. 7. Sampling and analysis of air, groundwater, and/or soil. Replacement or repair of bituminous pavement or concrete directly related to the Response Action, but not arising from tank removal or repair. 9. Hydrogeologic/aquifer tests. (4) Costs that are not allowable for Reimbursement include, without limitation, the following: (a) Retrofitting, relining or replacing UST Systems. (b) Loss of revenue because of shutdown due to a Release or the Response Action. (c) Rental of temporary virgin Petroleum Product storage tanks; (d) Expenses incurred initially to confirm a Release before receiving a MassDEP release tracking number (e.g., UST tightness tests, UST Closure and Limited Removal Actions (LRA)). 2. 1 1 : Response Actions: Costs, Expenses, and Obligations Allowable for Reimbursement ( 1 ) 503 CMR 2. 1 1 governs Reimbursements to Eligible Claimants for reasonable and appropriate costs, expenses, and obligations for Response Actions pursuant to M.G.L. c. 21J, § 4(a)(l ). (2) To be eligible for Reimbursement, all costs, expenses or obligations must be: (a) Incurred by or on behalf of an Eligible Claimant; (b) In excess of the Deductible Limit; (c) In compliance with 503 CMR 2. 16; (d) Incurred for Response Actions performed after April 1, 1991; (e) Reasonable and appropriate as described in 503 CMR 2. 1 1(3); and (f) Incurred as a part of a Response Action to an Eligible Release. (3) Allowable Costs. (a) The costs of the following activities are allowable for Reimbursement from the Fund as a part of a Response Action: 1 . Rental, lease or purchase of any remediation equipment in accordance with Reimbursement Fee Schedule in the amount of$5,000 or more, subject to the following conditions: a. The Claimant shall determine whether purchase is more cost-effective than a lease and the Claimant shall, upon request of the Board, furnish supporting documentation to the Board of its determination; b. The Claimant shall maintain adequate property casualty insurance equal to the full replacement value of the remediation equipment, not including deductibles or it must provide notice to and demonstrate to the Board its capacity to self-insure the remediation equipment. Upon request, the Claimant shall furnish a copy of the insurance declarations page or other acceptable documentation to the Board attesting to insurance coverage. Title to the equipment remains with Claimant and Claimant agrees that upon conclusion of its use the Claimant shall notify the Board of its intention for final disposition of the equipment. If the equipment is sold or exchanged for services or other products or materials, the proceeds of the sale or the equivalent value of the exchange shall be reimbursed to the Fund. c. If directed by the Board, Claimant agrees to convey and dispose of the equipment as directed by the Board at the conclusion of its use. The Claimant shall possess and/or operate any rented, leased or purchased equipment solely at its own risk. 2. Installation of test borings, monitoring wells, recovery wells and/or injection or extraction wells. 3. Removal, treatment, transport, reuse, recycling and/or disposal of Petroleum Products and Petroleum Product contaminated media and debris, including sludge, outside the UST System. 4. Provide for a temporary, permanent, or alternative potable drinking water supply to replace a potable drinking water supply that was contaminated by Petroleum Products. Development of assessment and remediation plans, including pilot testing and treatability tests. Treatment, transport, reuse, recycling and/or disposal of Petroleum Product contaminated ground water and/or soil. 7. Sampling and analysis of air, groundwater, and/or soil. 8. Replacement or repair of bituminous pavement or concrete directly related to the Response Action, but not arising from tank removal or repair. 9. Hydrogeologic/aquifer tests. (4) Costs that are not allowable for Reimbursement include, without limitation, the following: (a) Retrofitting, relining or replacing UST Systems. (b) Loss of revenue because of shutdown due to a Release or the Response Action. (c) Rental of temporary virgin Petroleum Product storage tanks; (d) Expenses incurred initially to confirm a Release before receiving a MassDEP release tracking number (e.g., UST tightness tests, UST Closure and Limited Removal Actions (LRA)). (e) Landscaping expenses, including loss and replacement of trees, shrubs, or signs. (f) Cost of lost Petroleum Product. (g) All governmental, Federal, State and local oversight fees, permit fees, charges, cost of paid police details and necessary and required security details, compliance and permit fees. [503 CMR 2.11(4)(g) does not apply to necessary transportation costs incurred using the Massachusetts Steamship Authority in order to access Nantucket, Martha's Vineyard, and neighboring islands]. (h) Attorneys' fees, expert witness fees, court costs and other legal or litigation costs. (i) Interest payments or any finance charges. (j) Soil density tests not conducted as a part of the Response Action. (k) Environmental audits or pre-purchase site assessments unless performed as part of the Response Action. (l) Non-petroleum Product hydrocarbon contamination testing not associated with the Response Action. (m) Expenses related to replace or treat a water supply system or well that are not directly caused or related to the Release or the Response Action. (n) Closure or removal of components of the UST System pursuant to 310 CMR 80.00: Underground Storage Tank (UST) Systems. (o) Replacement or repair of bituminous pavement or concrete not directly related to the Response Action. (p) Demolition or repair of buildings, unless it can be demonstrated to the Board that the demolition or repair was more cost effective than performing the cleanup without the demolition or repair. (q) Small tools except as required for the Response Action and listed in the Reimbursement Fee Schedule. (r) Preparation and/or filing of Claims and appeals. (s) Replacement, closure and/or abandonment of water supply systems or wells not directly affected by the Release. (t) Costs incurred prior to the receipt of a MassDEP release tracking number. (u) Ordinary business expenses or expenses for capital improvements, including expenses that would have been incurred in the course of ordinary tank management and replacement. (v) Punitive damages, civil or administrative penalties, or criminal fines. (w) Any other costs (including any UST compliance costs) not directly related to the Response Action. (x) Costs incurred in connection with conveyance of real and personal property, unless it is demonstrated to the Board that such conveyance was more cost effective than another clean-up approach and pre-approved by the Board. (y) Costs attributable to the time and expense of an Owner, Operator, or principal or employee of the Owner or Operator in connections with the Response Action. The Board shall determine whether any costs not listed in 503 CMR 2.11(4) shall be reimbursed. (6) Reasonable and appropriate Reimbursements shall be determined by the following: (a) The Reimbursement Fee Schedule that sets forth the Reimbursements that the Board has determined to be reasonable and appropriate for certain costs, expenses or obligations of Response Actions. (b) For response activities not covered by the Reimbursement Fee Schedule, reasonable and appropriate Reimbursements shall be determined as provided in 503 CMR 2.11(6). 1. Before undertaking activities, the Claimant shall obtain bids in accordance with the requirements set forth in the Reimbursement Fee Schedule or in another manner approved by the Board. 2. If emergency response actions are required and the time required to obtain bids would endanger the environment, the health and safety of the public, a Claimant may proceed with activities not covered by the Reimbursement Fee Schedule without obtaining bids. 2. 1 1 : continued (e) Landscaping expenses, including loss and replacement of trees, shrubs, or signs. (f) Cost oflost Petroleum Product. (g) All governmental, Federal, State and local oversight fees, permit fees, charges, cost of paid police details and necessary and required security details, compliance and permit fees. [503 CMR 2. 1 1(4)(g) does not apply to necessary transportation costs incurred using the Massachusetts Steamship Authority in order to access Nantucket, Martha's Vineyard, and neighboring islands] . (h) Attorneys' fees, expert witness fees, court costs and other legal or litigation costs. (i) Interest payments or any finance charges. (j) Soil density tests not conducted as a part of the Response Action. (k) Environmental audits or pre-purchase site assessments unless performed as part of the Response Action. (1) Non-petroleum Product hydrocarbon contamination testing not associated with the Response Action. (m) Expenses related to replace or treat a water supply system or well that are not directly caused or related to the Release or the Response Action. (n) Closure or removal of components of the UST System pursuant to 310 CMR 80.00: Underground Storage Tank (UST) Systems. (o) Replacement or repair of bituminous pavement or concrete not directly related to the Response Action. (p) Demolition or repair of buildings, unless it can be demonstrated to the Board that the demolition or repair was more cost effective than performing the cleanup without the demolition or repair. (q) Small tools except as required for the Response Action and listed in the Reimbursement Fee Schedule. (r) Preparation and/or filing of Claims and appeals. (s) Replacement, closure and/or abandonment of water supply systems or wells not directly affected by the Release. (t) Costs incurred prior to the receipt of a MassDEP release tracking number. (u) Ordinary business expenses or expenses for capital improvements, including expenses that would have been incurred in the course of ordinary tank management and replacement. (v) Punitive damages, civil or administrative penalties, or criminal fines. (w) Any other costs (including any UST compliance costs) not directly related to the Response Action. (x) Costs incurred in connection with conveyance of real and personal property, unless it is demonstrated to the Board that such conveyance was more cost effective than another clean-up approach and pre-approved by the Board. (y) Costs attributable to the time and expense of an Owner, Operator, or principal or employee of the Owner or Operator in connections with the Response Action. The Board shall determine whether any costs not listed in 503 CMR 2.1 1(4) shall be reimbursed. (6) Reasonable and appropriate Reimbursements shall be determined by the following: (a) The Reimbursement Fee Schedule that sets forth the Reimbursements that the Board has determined to be reasonable and appropriate for certain costs, expenses or obligations of Response Actions. (b) For response activities not covered by the Reimbursement Fee Schedule, reasonable and appropriate Reimbursements shall be determined as provided in 503 CMR 2. 1 1(6). 1 . Before undertaking activities, the Claimant shall obtain bids in accordance with the requirements set forth in the Reimbursement Fee Schedule or in another manner approved by the Board. 2. If emergency response actions are required and the time required to obtain bids would endanger the environment, the health and safety of the public, a Claimant may proceed with activities not covered by the Reimbursement Fee Schedule without obtaining bids. 503 CMR - 1 8 3. In the case of bidding, the Board shall reimburse at the rate of the lowest bid and all bids shall be obtained and reported to the Board on a competitive Bidding form or in a format specified by the Board, unless the Claimant can satisfactorily demonstrate to the Board that there is a more cost-effective activity or activities. (c) The Board reserves the right to determine allowable Reimbursements for reasonable and appropriate costs, expenses and obligations.