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New Maine Remedial Action Guidelines (RAGs) Are Rich with Guidance

Mainers interested in the question “how clean is clean?” – not to mention the Maine Department of Environmental Protection (DEP) – heavily rely on the Maine Remedial Action Guidelines (RAGs) for Sites Contaminated with Hazardous Substances when determining whether soils and groundwater require cleanup. The answer is important because human and environmental risks are at stake, and because cleanup can be costly and time-consuming. The RAGs are used under the Maine Uncontrolled Hazardous Substance Sites Law, the Voluntary Response Action Program (VRAP), Brownfields, Superfund/CERCLA, and RCRA/hazardous waste/corrective action programs.

In a change effective October 19, 2018, the revised risk-based RAGs for soil, sediment, indoor air, groundwater, and fish tissue now generally are based on the U.S. Environmental Protection Agency’s (EPA’s) approaches, including the agency’s detailed Risk Assessment Guidance for Superfund. These 2018 RAGs include numerical standards for ingestion, skin contact, and inhalation for soils, groundwater, and sediment exposures. They also provide numerical levels and indoor air exposures for residents and commercial workers. In a first, the 2018 RAGs also cover fish tissue ingestion by recreational anglers.

The RAGs have three main parts:

  • The risk-based tables & narrative provide an alternative approach to undertaking a full risk assessment for common scenarios and routes of exposure. The tables are an efficient way to determine whether a site poses risk to public health, establish contaminant specific clean-up goals, and determine when sites are clear for reuse.

  • The Technical Support Document describes how the RAG tables were developed using the EPA’s Regional Screening Levels (RSLs) calculator and provides the inputs that were used to derive the Maine RAG tables.

  • The Supplemental Guidance for Conducting Site-Specific Risk Assessments contains the Maine-specific factors and protocols that should be used when developing a full risk assessment for a Maine site using EPA’s Risk Assessment Guidance for Superfund.

This switch to using EPA’s RSLs is a major change from working primarily with the Maine State Toxicologist to develop standards, and instead takes advantage of national, unified science efforts of EPA. It abandons the Maine “Maximum Exposure Guidelines” for drinking water and groundwater. For these reasons, many new RAGs are different from DEP’s recent standards. In addition, DEP adopted unique approaches for lead and per- and polyfluoroalkyl substances (PFAS). Importantly, the RAGs do not address “petroleum-only” contamination, ecological risk assessment, or radionuclides.

Beyond simply addressing numerical standards, the RAGs go into some detail on cleanup policies, including when exposure pathways (e.g., exposure to groundwater) may be excluded, what role environmental covenants can play, and when groundwater cleanup may be technically impracticable.

It is important to remember that the RAGs are guidance – not regulations – and are therefore not binding on DEP or the public. Further, the RAGs are intended to be conservative and used to simplify derivation of cleanup goals for sites and speed-up the decision-making process. Depending on the site, the contaminants, and potential exposures, it may be wise and cost-effective in the long run to develop a site-specific risk assessment, and forego using the numeric RAGs standards.

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About this Author

Kenneth Gray, Pierce Atwood, Environmental lawyer
Partner

Ken Gray joined Pierce Atwood's Environmental Group in 1987 after practicing with the U.S. Environmental Protection Agency's Office of General Counsel in Washington, D.C. Ken has practiced environmental law since his graduation from law school in 1979.

Ken concentrates on counseling and enforcement issues related to hazardous substance and hazardous waste management, cleanup, and liability, including toxic tort matters; chemical safety requirements under a variety of laws including the Occupational Safety and Health Act; product regulation including toxic...

(207) 791-1212
Tom Doyle, Environmental Attorney, Land Use Lawyer, Northeast, Pierce Atwood Law Firm
Partner

Tom Doyle is a partner in Pierce Atwood's Environmental & Land Use Practice Group with 30 years of experience in all areas of environmental and land use law, including adjudicatory proceedings, transactions, permitting, client counseling, enforcement defense, brownfield redevelopment, and legislation. Tom's practice has frequently involved the successful permitting of major development projects that face opposition or complex environmental and land use issues. His transactional experience has included serving as lead environmental counsel in public offerings, mergers, acquisitions, divestitures, site divisions, and project financings. He also has long advised the forest products industry on a variety of strategic environmental, natural resource, land use, and policy issues.

Honors & Distinctions

  • Recognized as a leading environmental attorney by Chambers USA
  • Included since 1995 in The Best Lawyers in America® in Environmental Law
  • Named The Best Lawyers in America® 2014 “Lawyer of the Year” in Environmental Law in Portland, Maine
  • Received James River Corporation's Bronze Key Award for Environmental Achievement
  • Achieved the highest professional rating, AV® Preeminent™ awarded by Martindale-Hubbell

Professional Activities

  • Vice-chair, American Bar Association's Environmental Transactions and Brownfields Committee, 2004-present
  • Member, Maine State Bar Association, 1982-present (Chair, Natural Resources and Environmental Law Section, 2013)
  • Twice served on Governor or legislatively appointed committees to study revisions to Maine's Site Location of Development Law
  • Served on Maine Department of Environmental Protection and State Planning Office-appointed committees to review Maine's solid waste laws

Publications

  • Doyle, Thomas. Maine's Site Location, Storm Water, and Traffic Permitting Laws. Environmental Law in Maine seminar, 2017.
  • Doyle, Thomas. Solid Waste Regulations and Recent Developments. Environmental Law in Maine seminar, 2017.
  • Doyle, Thomas. Co-author of A Practical Guide to Land Use in Maine, MCLE New England (2016-2018).
  • Day, Avery T.; Doyle, Thomas R.; Manahan, Matthew D.  About face: How a mine moved toward opening in Maine, Mining Engineering (2012).

Civic Activities

  • Treasurer, Yale Club of Western Maine, 2007-present
  • Treasurer and Board member, Falmouth Little League, 1998-2003
(207) 791-1214
Lisa Gilbreath, Pierce Atwood, Environmental lawyer
Associate

Lisa Gilbreath is an associate in the Environmental & Land Use and Energy Infrastructure Development, Acquisition & Financing practice groups. Lisa works on a wide variety of environmental and energy matters, offering clients strategic advice in regulatory, legislative, and judicial proceedings.

In her environmental practice, Lisa assists clients with numerous issues including energy project development permitting, energy and environmental litigation, air quality legislative and regulatory activities, air quality enforcement, hazardous substances and...

(207) 791-1397