An Update on the “New” Site Cleanup Regulations in Massachusetts
Wednesday, October 16, 2013

As we identified in our March 2013 Massachusetts Environmental and Land Use Alert, the Massachusetts Department of Environmental Protection (MassDEP) proposed major changes to its site cleanup program under M.G.L. c. 21E and its regulations at 310 CMR 40 on February 28, 2013.  The comment period ended May 17, 2013, and the waiting began.  During a recent public event, representatives of MassDEP provided some insight on what the final regulations will include, when they will be finalized, and when they will become effective. 

Timing. MassDEP is estimating that the regulations will be promulgated during November or December 2013 and will become effective two months after promulgation.

Changes to the Proposed Rules. MassDEP received dozens of letters commenting on the proposed regulations, including from individuals, interested non-profit organizations, and the regulated community. MassDEP has indicated that the following changes from the original draft are likely to be made:

  • For potential vapor intrusion sites, the regulations will provide additional clarity on when a condition of substantial release migration exists as a result of vapor intrusion.

  • For vapor intrusion sites that will be closed with an active exposure pathway mitigation measure in place, the regulations will require a deed restriction known as an Activity and Use Limitation (AUL), but not a permit. In addition, requirements for notifying affected parties when the system is shut down will be limited to shutdowns of more than 30 days.

  • For sites with nonaqueous phase liquid (NAPL), changes to notification requirements will not be made and requirements for closure will be clarified.

  • For sites with dense-NAPL, the regulations will not require as a condition of closure that concentrations in groundwater of dense-NAPL constituents be less than 1 percent of the solubility limit.

  • For sites that require a deed restriction or AUL, the requirements for AULs will be streamlined by eliminating the AUL Opinion.

  • Proposed language regarding the effect of a violation of an AUL or other failure to maintain the requirements of a closure statement will not be included.

Finally, MassDEP announced that it will be developing additional guidance to assist the regulated community in understanding and meeting these new requirements in the areas of NAPL, vapor intrusion, and AULs as well as updating the existing Questions and Answers. 

 

NLR Logo

We collaborate with the world's leading lawyers to deliver news tailored for you. Sign Up to receive our free e-Newsbulletins

 

Sign Up for e-NewsBulletins