The Massachusetts Department of Environmental Protection (“MassDEP”) has recently promulgated the first set of significant changes to the Massachusetts Contingency Plan (“MCP”) in eight years, these changes cover a wide variety of environmental issues. The purpose of the MCP is to establish standards and procedures for cleaning up oil or hazardous materials (“OHM”) at contaminated sites. The recent changes to the MCP are all designed to make the MassDEP more efficient and to simplify language and classification. The vast majority of the changes to the MCP went into effect on June 20, 2014.
Simplification of Tier Classification
One of the more important changes to the MCP is the simplification of the numerical ranking system classifying a contaminated disposal site. Previously, disposal sites that remained open beyond one year after initial reporting to the MassDEP were classified by a numerical ranking system. This ranking system was complicated and difficult to administer. The revised MCP provides a simpler and more straightforward approach to site classification.
Whereas sites have been classified as Tier 1A, 1B, etc., going forward they will be classified as Tier I or Tier II. This new classification system will provide responsible parties with a much clearer understanding of how the site will be treated and what steps need to be taken to remediate the contamination.
Sites will be classified as Tier I if (1) there is contamination of groundwater close to actual or potential drinking water supply, (2) there is an imminent hazard to health, safety, public welfare or the environment, or (3) immediate remedial action is required. Sites not meeting these criteria will be classified as Tier II. The new tier system also provides for reclassification of Tier I sites as Tier II sites once the conditions requiring Tier I classification are no longer present.
The revised MCP also adds an additional year to the previous two-year requirement to complete an assessment of a contaminated site. The three year window for site assessment will enable a more thorough assessment, taking into account conditions during different seasons of the year. Additionally, the requirement of obtaining a permit for any response action at a Tier I site has been eliminated. The MassDEP eliminated the permit requirement as the agency determined that permits did not sufficiently improve compliance to justify use of both the MassDEP and private parties’ resources, and did not diminish its ability to maintain adequate oversight.
Site Closures & Deed Restrictions
The revised MCP also changes the terminology for site outcomes and the information that must be recorded on property instruments so that the public is better informed about the condition of the property.
Previously, the MCP used the term “Response Action Outcomes” to set forth the potential outcome for a site after cleanup of the hazardous material. There were three categories of Response Action Outcome: A, B, and Creech with sub-categories.
Under the revised MCP, sites will instead be classified as (1) Permanent Solution with No Conditions, (2) Permanent Solution with Conditions, and (3) Temporary Solution. These revised titles more meaningfully communicate the nature of the site closure and enable the public, future property owners, or property developers to easily identify conditions on the property which may affect the safe use or development of the property. Although the terminology has changed, to be classified as a Permanent Solution (with or without conditions), a site must still pose “no significant risk.” To be classified as a Temporary Solution, “no substantial hazard” must be shown.
The revised MCP also requires that all Activity and Use Limitations (AULs) be included in the language of property instruments, such as deeds, leases, and easements. AULs document the presence of residual contamination and limit, or place conditions on the uses of property to prevent human exposure to the residual contamination. Under the prior version of the MCP, a Licensed Site Professional (LSP) was required to prepare an AUL Opinion, which was recorded at the Registry of Deeds. The requirement of an AUL Opinion provided by an LSP has been eliminated. The new requirement that the language be in the recorded property instrument itself should serve to reduce duplicate paperwork while at the same time provide sufficient notice to the public of the limitations or conditions on a property.
Another major change to the MCP concerns vapor intrusion, which occurs when volatile organic compounds (VOCs) such as benzene or gasoline contaminate groundwater or soil and the vapors migrate into nearby buildings. The revised MCP will require a party responsible for releasing a hazardous material which will result in indoor air contamination at a school, day care, child care center, or occupied residence to notify MassDEP within 72 hours of learning of the release. The revised MCP now allows the use of active mitigation systems called “active pathway elimination systems” to achieve a permanent solution for sites affected by vapor intrusion. These systems are relatively affordable and provide a system to draw air contaminated by VOCs away from the building. Active pathway elimination systems include sub-slab depressurization systems (SSD), the same type of system used to mitigate radon, which exhaust air from underneath buildings affected by vapor intrusions.
Under the prior version of the MCP it was unclear whether parties who undertook measures to mitigate or eliminate the vapor intrusion could achieve site closure. The old MCP also prohibited site closure when a mitigation system, like an SSD system fan, was in place. Under the revised MCP, a site can be closed with MassDEP if there is an active pathway elimination system in place, as long as the source of the contamination has been effectively eliminated or controlled, and the mitigation system is maintained under an operating permit. MassDEP suggested these changes, which have been implemented, to remove the disincentive for SSD systems and support site closure.