Massachusetts Department of Environmental Protection (“MassDEP”) Proposes Site Cleanup Program Regulatory Changes under Regulatory Reform Initiative
Friday, April 5, 2013

The Massachusetts Department of Environmental Protection (“MassDEP”) issued proposed changes to its site cleanup program pursuant to M.G.L. c. 21E on February 28, 2013. These proposed regulatory changes are part of an extensive review by MassDEP of its regulations and programs in an effort to improve its efficiency, which have also included proposed changes to asbestos abatement and solid waste, which are covered in other e-alert articles in this issue. The proposed revised regulations at 310 CMR 40.0000 are available at http://www.mass.gov/dep/service/regulations/newregs.htm#proposed. The public comment period runs May 17, 2013. Public hearings have been scheduled throughout the state during early April 2013. 

The Massachusetts site cleanup program is a privatized program, which means that private consultants, known as Licensed Site Professionals, make site cleanup decisions under the timelines and criteria identified in the regulations, subject to MassDEP audit and enforcement authority.  Highlights of the changes to these proposed regulations are detailed below.

Vapor Intrusion and Site Closure changes

Vapor intrusion occurs when soil or groundwater contaminants migrate into indoor air of an overlying building.  Over the last several years, MassDEP has conducted an extensive evaluation of assessment, remediation, and site closure issues at vapor intrusion sites.  MassDEP has expressed concern regarding exposures to humans in such buildings, and in December 2011 issued “interim final” guidance explaining its views on how to approach assessment and remediation of such sites.  Many questions have arisen over how to achieve closure at these sites.  This regulatory proposal is intended to address these issues.

The proposal would eliminate one type of temporary site closure, now known as a Class C-2 RAO.  In addition, the terminology for all site closures has changed from Response Action Outcomes of various classes to Permanent Solutions with No Conditions, Permanent Solutions with Conditions, and Temporary Solutions. 

A Permanent Solution with Conditions would include closures where a deed restriction is necessary, known in Massachusetts as Activity and Use Limitations (AUL).  This will enable vapor intrusion sites to be closed with an AUL if they meet the existing requirements for site closure except that an active exposure pathway elimination measure must continue to be operated after closure.  For these vapor intrusion sites, in addition to the AUL, a permit will be required so that MassDEP will continue to have oversight of the continued operation of the active exposure pathway elimination measure.

In addition, a Permanent Solution with Conditions would be used when information in the closure report must be taken into account to ensure future uses are protective.  MassDEP stated that it expects this will be used in four circumstances:  (i) elevated contamination under a roadway; (ii) anthropogenic background/historic fill; (iii) residential gardens; and (iv) residual contamination in groundwater at undeveloped sites remains that may pose a risk of vapor intrusion into future buildings.

Non-aqueous Phase Liquid

Many sites in Massachusetts that are impacted by non-aqueous phase liquid (NAPL) cannot reach site closure because the upper concentration limit is exceeded at those sites.  Based on an updated scientific understanding, MassDEP is proposing to reform its approach by removing the upper concentration limit for NAPL of one-half inch, simplifying the reporting requirements but also reducing the threshold for reporting from one-half to one-eighth inch and adding specific requirements for assessing sites with NAPL.   In addition, the proposal would allow for closure of sites with “stable” NAPL with an AUL, but would not allow closure of sites with “non-stable” NAPL.

Sustainability

The proposal would require all response actions to reduce, “to the extent practicable, non-renewable energy use, air pollutants, greenhouse gas emissions, and ecosystem and water resources impacts … through materials management, waste reduction, land management, ecosystem protection, and renewable energy use.”  This would be a new, substantive requirement applicable to all response actions.

Deed Restrictions (AULs)

Deed restrictions known as AULs are real estate documents that limit the types of activities that can occur on a property into the future and can be used to limit the amount of cleanup necessary to reach site closure.  The proposed changes would simplify the AUL submittal and eliminate duplication.  In addition, the changes would require submittal of information to MassDEP upon a future transfer of the real estate confirming that the AUL was incorporated into the deed. 

Deadline Changes

In recognition of the fact that some sites require multiple sampling rounds to evaluate temporal variability, the proposed changes would increase the time to complete the comprehensive site assessment (Phase II Report) from two years to three years.  In addition, the time to complete the remedial action plan (Phase III Report) would increase from two years to four years. 

Reporting and Risk Assessment

MassDEP is proposing to clarify which sources (e.g., EPA) of toxicity information are preferred in determining risk at a site.  In addition, MassDEP is proposing changes to several reporting and cleanup standards.

Permit Tier Classification and Numerical Ranking System Changes

Under the current program, sites that are not fully remediated within one year are ranked to identify the sites that pose a higher level of potential risk to receptors and warrant additional MassDEP attention.  The highest ranked sites are considered Tier I and require a permit.  MassDEP proposes to simply the ranking criteria by replacing it with a “Tier I Criteria” worksheet and eliminating the permit requirement.  Under the revision, sites that have an immediate response action in process at the time of tier classification will be more likely to be classified as Tier I.

 

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