355-373 HIGHLAND AVENUE NOR 5-24-23
Maura T. Healey
Governor
Kimberly Driscoll
Lieutenant Governor
Rebecca L. Tepper
Secretary
Bonnie Heiple
Commissioner
This information is available in alternate format. Please contact Melixza Esenyie at 617-626-1282.
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URGENT LEGAL MATTER: PROMPT ACTION NECESSARY
May 24, 2023
Berman Properties, LLC RE: SALEM
220 Highland Avenue Construction Site
Salem, MA 01970 355-373 Highland Avenue
RTN 3-38120
Attention: Edward Berman, Manager
Issued via electronic email: eberman@tropicalproducts.com
NOTICE OF RESPONSIBILITY;
MGL c. 21E & 310 CMR 40.0000
Dear Edward Berman:
On May 8, 2023, at 3:44 p.m., the Massachusetts Department of Environmental Protection
(MassDEP) received oral notification of a release/threat of release of Oil/Hazardous Material at the
subject location, which requires one or more Response Actions. Based on this information, MassDEP
has reason to believe that the subject property or portion(s) thereof is a disposal site as defined in the
Massachusetts Oil and Hazardous Material Release Prevention and Response Act, M.G.L. c. 21E and
the Massachusetts Contingency Plan (MCP), 310 CMR 40.0000. M.G.L. c.21E and the MCP govern
the assessment and cleanup of Disposal Sites.
The purpose of this notice is to inform you (as used in this letter "you" refers to Berman
Properties, LLC) of your legal responsibilities under state law for assessing and/or remediating the
subject release. For purposes of this notice, the terms and phrases used herein shall have the meaning
ascribed to them by the MCP unless the text clearly indicates otherwise.
Berman Properties, LLC
Notice of Responsibility
Page 2 of 6
STATUTORY LIABILITIES
MassDEP also has reason to believe that you are a Potentially Responsible Party (PRP) with
liability under M.G.L. c. 21E, Section 5, for Response Action Costs. Section 5 makes the following
parties liable to the Commonwealth of Massachusetts: current owners or operators of a site from or
at which there is or has been a release/threat of release of oil or hazardous material; any person who
owned or operated a site at the time hazardous material was stored or disposed of; any person who
arranged for the transport, disposal, storage or treatment of hazardous material to or at a site; any
person who transported hazardous material to a transport, disposal, storage or treatment site from
which there is or has been a release/threat of release of such material; and any person who otherwise
caused or is legally responsible for a release/threat of release of oil or hazardous material at a site.
This liability is "strict" meaning that it is not based on fault but solely on your status as owner,
operator, generator, transporter or disposer. It is also "joint and several", meaning that you may be
liable for all response action costs incurred at the site, regardless of the existence of any other liable
parties.
The MCP requires responsible parties to take necessary Response Actions at properties where
there is or has been a release or threat of release of oil and/or hazardous material. If you do not take
the necessary Response Actions or fail to perform them in an appropriate and timely manner,
MassDEP is authorized by M.G.L. c. 21E to have the work performed by its contractors. By taking
such actions, you can avoid liability for Response Action Costs incurred by MassDEP and its
contractors in performing these actions, and any sanctions, which may be imposed, for failure to
perform Response Actions under the MCP.
You may be liable for up to three (3) times all Response Action Costs incurred by MassDEP.
Response Action Costs include, without limitation, the cost of direct hours spent by MassDEP
employees arranging for response actions or overseeing work performed by persons other than
MassDEP or its contractors, expenses incurred by MassDEP in support of those direct hours, and
payments to MassDEP's contractors. (For more detail on cost liability, see 310 CMR 40.1200.)
MassDEP may also assess interest on costs incurred at the rate of twelve percent (12%), compounded
annually. To secure payment of this debt, the Commonwealth may place liens on all of your property
in the Commonwealth. To recover the debt, the Commonwealth may foreclose on these liens or the
Attorney General may bring legal action against you. In addition to your liability for up to three (3)
times all response action costs incurred by MassDEP, you may also be liable to the Commonwealth
for damages to natural resources caused by the release. Civil and criminal liability may also be
imposed under M.G.L. c. 21E, § 11, and civil administrative penalties may be imposed under M.G.L.
c. 21A, § 16 for each violation of M.G.L. c. 21E, the MCP, or any order, permit or approval issued
hereunder.
Berman Properties, LLC
Notice of Responsibility
Page 3 of 6
NECESSARY RESPONSE ACTIONS
The subject site shall not be deemed to have all the necessary and required Response Actions
taken unless and until all Substantial Hazards presented by the site have been eliminated and a level
of No Significant Risk exists or has been achieved in compliance with M.G.L. c. 21E and the MCP.
In addition, the MCP requires persons undertaking Response Actions at Disposal Sites perform
Immediate Response Actions (IRAs) in response to "sudden releases", Imminent Hazards and
Substantial Release Migration. Such persons must continue to evaluate the need for IRAs and notify
MassDEP immediately if such a need exists.
MassDEP has determined that an IRA is necessary to respond to a release of Asbestos
that poses an Imminent Hazard condition at the subject site.
You are authorized to conduct only the specific response actions for which you received
oral approval from MassDEP. All additional Immediate Response Actions require MassDEP
approval in accordance with 310 CMR 40.0420.
MassDEP reminds you that IRAs must include site assessment activities necessary to
evaluate potential Imminent Hazard (IH), Substantial Release Migration (SRM), and
Critical Exposure Pathway (CEP) conditions. Additional Immediate Response Actions will
be required in the event that one or more of these conditions are observed.
You must employ or engage a Licensed Site Professional (LSP) to manage, supervise or
actually perform the necessary response actions at the subject site. In addition, the MCP requires
persons undertaking response actions at a disposal site submit to MassDEP a Permanent Solution
Statement prepared by an LSP in accordance with 310 CMR 40.1000 upon determining that a level
of No Significant Risk already exists or has been achieved at a disposal site or portion thereof. You
may obtain a list of the names and addresses of these licensed professionals from the Board of
Registration of Hazardous Waste Site Cleanup Professionals at (617) 556-1091 or
http://www.mass.gov/eea/agencies/lsp/.
There are several other submittals required by the MCP which are related to release
notification and/or Response Actions that may be conducted at the subject site in addition to a
Permanent Solution Statement that, unless otherwise specified by MassDEP, must be provided to
MassDEP within specific regulatory timeframes. The submittals are as follows:
(1) If information is obtained after making an oral or written notification to indicate that the
release or threat of release didn't occur, failed to meet the reporting criteria at 310 CMR
40.0311 through 40.0315, or is exempt from notification pursuant to 310 CMR 40.0317, a
Notification Retraction may be submitted within 60 days of initial notification pursuant to 310
CMR 40.0335;
Berman Properties, LLC
Notice of Responsibility
Page 4 of 6
(2) If a Notification Retraction has not been submitted, a Release Notification Form (RNF) must
be submitted to MassDEP pursuant to section 310 CMR 40.0333 within 60 calendar days of
the initial date of oral notification to MassDEP of a release pursuant to 310 CMR 40.0300 or
from the date MassDEP issues a Notice of Responsibility (NOR), whichever occurs earlier.
The RNF can either be submitted electronically or using the PDF Form at
http://www.mass.gov/eea/docs/dep/cleanup/approvals/bwsc-103.pdf ;
(3) Unless a Permanent Solution Statement or Downgradient Property Status Submittal is
provided to MassDEP earlier, an Immediate Response Action (IRA) Plan prepared in
accordance with 310 CMR 40.0420, or an IRA Completion Statement (310 CMR 40.0427)
must be submitted to MassDEP within 60 calendar days of the initial date of oral notification
to MassDEP of a release pursuant to 310 CMR 40.0300 or from the date MassDEP issues an
NOR, whichever occurs earlier; and
(4) Unless a Permanent Solution Statement or Downgradient Property Status Submittal is
provided to MassDEP earlier, a completed Tier Classification Submittal pursuant to 310 CMR
40.0510 must be submitted within one year of the initial date of notification of a release
pursuant to 310 CMR 40.0300 or from the date MassDEP issues an NOR, whichever occurs
earlier or as otherwise specified by the Department in an Interim Deadline or order issued
pursuant to 310 CMR 40.0501 (2).
(5) Pursuant to MassDEP's "Timely Action Schedule and Fee Provisions", 310 CMR 4.00, the
appropriate fee must be included with a Permanent Solution Statement that is submitted to
MassDEP more than 120 calendar days after the initial date of oral notification to MassDEP
of a release pursuant to 310 CMR 40.0300, or more than 120 calendar days after the date
MassDEP issues an NOR, whichever occurs earlier, and before Tier Classification. A fee is
not required for a Permanent Solution Statement submitted to MassDEP within 120 days of
the date of oral notification to MassDEP, or within 120 days of the date MassDEP issues an
NOR, whichever date occurs earlier, or after Tier Classification.
It is important to note that you must dispose of any Remediation Waste generated at the
subject location in accordance with 310 CMR 40.0030 including, without limitation, contaminated
soil and/or debris. Any Bill of Lading accompanying such waste must bear the seal and signature of
an LSP or, if the response action is performed under the direct supervision of MassDEP, the signature
of an authorized representative of MassDEP.
It should also be noted that this release notification involves the identification of asbestos
containing material (ACM). Any management of ACM and/or asbestos in soil must comply with
MassDEP’s Asbestos Regulations at 310 CMR 7.15, in addition to M.G.L. c. 21E and the MCP.
MassDEP encourages parties with liability under M.G.L. c. 21E to take prompt action in
response to releases and threats of release of oil and/or hazardous material. By taking prompt action,
you may significantly lower your assessment and cleanup costs and avoid the imposition of, or reduce
the amount of, certain annual compliance fees for response actions payable under 310 CMR 4.00.
Berman Properties, LLC
Notice of Responsibility
Page 5 of 6
If you have any questions relative to this notice, you should contact Erik Johnson by email at
erik.johnson@mass.gov, at the letterhead address or by calling (781) 400-4378. All future
communications regarding this release should reference the Release Tracking Number contained in
the subject block of this letter.
Sincerely,
Joanne Fagan
Section Chief, Brownfields/Risk Reduction
Bureau of Waste Site Cleanup MassDEP,
Northeast Regional Office
eCC:
Mr. David Greenbaum, RS., Public Health Agent, Board of Health, City of Salem,
dgreenbaum@Salem.com
Elizabeth Rennard, City Solicitor, City of Salem, brennard@salem.com
Michael Murphy, Esq., Regnante Sterio LLP, mmurphy@regnante.com
Robert Bird, LSP of Record, EnviroTrac Ltd, robertb@envirotrac.com
MassDEP data entry/file (NOR / Issued)
Berman Properties, LLC
Notice of Responsibility
Page 6 of 6