August 2, 2021

Volume XI, Number 214

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July 30, 2021

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MassDEP Finalizes Important Revisions to Contaminated Site Cleanup Regulations

The Massachusetts Department of Environmental Protection (MassDEP) recently finalized a substantial overhaul of its contaminated site cleanup regulations, the Massachusetts Contingency Plan (MCP), 310 CMR 40.0000.  These revisions significantly modify the regulatory process for reporting and remediating contaminated properties in Massachusetts.

Initially promulgated in 1988, the MCP has evolved considerably in the intervening 25 years.  Earlier amendments to the MCP incorporated ground-breaking regulatory approaches such as the use of Licensed Site Professionals (LSPs) to oversee response actions and risk-based closure standards.  While not without its faults, the MCP has been generally viewed as a successful regulatory program that facilitated Brownfields redevelopment in Massachusetts.

To its credit, MassDEP recognized that there was still room for improvement.  Based on public input first solicited in March, 2012, MassDEP targeted five reform objectives:  (i) eliminate unnecessary permits; (ii) streamline the site classification and deed restriction procedures; (iii) facilitate site closure; (iv) improve disclosure of site closure conditions; and (v) update reporting and remediation standards.  The resulting revisions to the MCP including the following points, (which roughly follow the order a site proceeds through the MCP – reporting, remediation, and closure):

  1. Changes to Standards.  Both the Reportable Concentrations (which trigger the obligation to report a release) and the Method 1 Standards (which are the non-site-specific closure standards) have been updated.  For some contaminants (e.g., TCE, lead and PCBs), these standards have become more stringent, and for others (e.g., other heavy metals), these standards have become less stringent.
  2. Tier Classification.  MassDEP has simplified the ranking system used to indicate the risks posed by a reported release.  Previously, higher risk sites (designated as Tier I) were required to obtain a permit from the Bureau of Waste Site Cleanup – that requirement has been dropped.  In addition, the numerical scoring system used to rank sites has been replaced with a list of four criteria – sites that meet any one of those four criteria trigger a Tier I ranking.
  3. Timelines.  Except in the case of an Imminent Hazard condition or other releases triggering Immediate Response Actions, the MCP provides a fair degree of flexibility for responding to releases and moving a site through the MCP “system.”  However, the MCP does impose timelines for completing various phases of the cleanup.  The revisions extend several of the MCP’s interim timelines, but sites must still achieve a Permanent or Temporary Solution within six years after reporting of the release.
  4. Historic Fill.   The revised MCP further clarifies when contamination associated with fill does not require remediation – an important issue for many urban Brownfield sites.  To qualify as Historic Fill, the fill must have been placed before 1983 (when M.G.L. c. 21E was enacted), and must meet six other criteria regarding its origin.  If the fill meets the definition of Historic Fill, it will now be considered a “background” condition that does not require remediation.
  5. Activity and Use Limitations (AULs).  These deed restrictions allow for a risk-based site closure, by eliminating uses or activities inconsistent with the remediation outcome (e.g., no residential use at sites remediated to industrial use standards).  The good news is that MassDEP has eliminated unnecessary paperwork associated with AULs (the so-called AUL Opinions prepared by LSPs, which were previously recorded with an AUL).  The bad news is that MassDEP must now be notified whenever a property subject to an AUL is sold.
  6. Non-Aqueous Phase Liquids (NAPL).  NAPL is a condition associated with petroleum releases and results from the presence of petroleum as a separate phase liquid.  Previously, the presence of more than 0.5 inches of NAPL constituted an exceedance of an Upper Concentration Limit, which categorically precluded a Permanent Solution closure.  The revised MCP removes this NAPL Upper Concentration Limit to allow for a Permanent Solution closure for NAPL sites, assuming certain performance standards concerning contaminant mobility and source control/elimination are met.
  7. Source Control.  Eliminating or controlling contaminant sources is one of the key performance standards for site closure under the MCP.  MassDEP has added additional details to that performance standard, primarily directed to sites with releases of volatile organic compounds (VOCs) that can contribute to indoor air impacts.
  8. Site Closure.  Under the MCP, releases that achieve a Condition of No Significant Risk to current and future foreseeable uses qualify for a Permanent Solution, while releases that present a Condition of No Significant Risk to current uses only qualify for a Temporary Solution (and remain subject to several continuing obligations).  Previously, Permanent Solutions were classified as one of six Class A or Class B Response Action Outcomes, and Temporary Solutions were classified as one of two Class C Response Action Outcomes.  The revised MCP has replaced the eight classes of Class A, B and C Response Action Outcomes with three regulatory endpoints: Permanent Solutions with No Conditions, Permanent Solutions with Conditions and Temporary Solutions.  Permanent Solutions with Conditions apply to sites relying on AULs to eliminate future risks, undeveloped sites where residual groundwater contamination may present indoor air risks to future buildings, sites contaminated with Historic Fill, sites with elevated contamination under roadways or railroads, and sites with residual contamination where best management practices are required to minimize risks from gardening.  Temporary Solutions remain subject to certain continuing obligations (e.g., five-year reviews) until the release achieves a Condition of No Significant Risk for current and future foreseeable uses.
  9. Vapor Intrusion (VI).  The MCP’s approach to controlling the migration of VOC contaminants from soil or groundwater into indoor air continues to evolve.  MassDEP has revised the MCP to acknowledge the role that sub-slab depressurization systems (SSDS) can play in mitigating VOC impacts to indoor air.  Site where SSDS have been employed to eliminate a VOC exposure pathway to indoor air now qualify for a Permanent Solution with Conditions – Permanent Solutions for such sites were not previously allowed.  Of course, there is a catch: the Permanent Solution conditions will include obtaining a separate permit, addressing financial assurance requirements, using remote telemetry to monitor the SSDS, and complying with notification and certification requirements.

These revisions went into effect on June 20, 2014.  MassDEP is in the process of preparing guidance documents to address various aspects of these revisions, which it will publish in the coming months.

How these regulatory revisions may affect particular contaminated properties in Massachusetts varies significantly, depending on that site’s regulatory status and current or future uses.  Parties currently engaged in site remediation, Brownfield redevelopment, or looking to buy or sell contaminated property in Massachusetts should confer with their environmental advisors to evaluate how the revised MCP may affect their projects and transactions.

©2021 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume IV, Number 177
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About this Author

Greenberg Traurig’s Environmental Practice assists clients across industries with issues surrounding the environmental and natural resource laws that impact their businesses. We assist in transactions, enforcement actions, litigation, regulatory compliance, crisis management, legacy cleanups, market access, and environmental policy challenges. Our team’s expansive geographic footprint and depth of experience provides effective solutions for clients facing environmental challenges.

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