Changes to the Massachusetts Contingency Plan Could Affect Your Cleanup

After a long rulemaking with many hundreds of comments, the Massachusetts Department of Environmental Protection (MassDEP) has just adopted major updates to the state’s cleanup program, known as the Massachusetts Contingency Plan (MCP).  While most changes are effective June 20, 2014, several changes, including reporting  obligations, are effective immediately.

Immediate changes.  Among the more significant changes effective immediately are:

  • Changes in some reportable concentrations for oil and hazardous material in groundwater (most new concentrations were lowered),
  • Elimination of the Tier I permits and streamlining of the disposal site classification system, and
  • Permissive use of new Method 1 cleanup standards in a Method 2 risk characterization to reduce the burden of risk characterization.

Streamlining cleanup and closure.  Other amendments streamline cleanup and closure.  Those changes include:

  • “Activity and Use Limitation” (AUL) requirements for deed notices where residual contamination remains, but removal of the AUL Opinion requirement,
  • Clarification of adequate source control measures, and addressing active exposure pathway mitigation measures,
  • An additional year to complete the comprehensive site assessment, and
  • Documenting conditions for maintaining closure or allowing redevelopment.

Non-aqueous phase liquids and vapor intrusion.  One long-standing environmental issue, now addressed with more clarity and scientific rigor, relates to contamination that does not mix with groundwater (non-aqueous phase liquids).  New definitions allow environmental approaches that are more precisely tailored to real-world environmental conditions, focusing remediation where it is likely to be effective.  And vapor intrusion -- a hot topic -- is the subject of new approaches, including additional notification obligations and closure with active treatment systems, particularly where “historic fill” (a precisely defined term) is present.

Simplified language and fewer AULs.   In order to give the public a better understanding of the type of closure that has been achieved, the MCP replaces the term “response action outcome” (RAO).  Instead, MCP endpoints will now be known as “temporary solutions,” “permanent solutions with no conditions,” or “permanent solutions with conditions.”  A permanent solution with conditions refers to two different types of site closures: (1) a site closure with AULs and (2) a new type of closure where conditions are imposed but no AUL is required.  Among the examples of situations where the second type of site closure might come into play are instances where elevated contaminants remain under roadways, or where there is potential for future buildings in areas that are potentially susceptible to indoor air concerns (but conditions address the concern).  This approach will likely reduce the number of AULs.

Some of these changes will promote cleanup and ease administrative burdens, but other changes may not have the same beneficial effect.  If you have questions about the new MCP changes or how they may apply to your property or project, please contact our lawyers admitted in Massachusetts, including Ken Gray (207-791-1212) and Matt Manahan (207-791-1189).