Environmental and Land Use Law

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Demystifying DEP’S New Cleanup Regulations

Just when real estate owners, operators, buyers, sellers and developers got comfortable, MassDEP unveiled new MCP amendments.
(Above: an image from a DEP remediated site visit.)

The Massachusetts Department of Environmental Protection (“DEP”) has issued significant amendments to the Massachusetts Contingency Plan (“MCP”), the massive set of regulations governing the cleanup of oil and hazardous materials (“OHM”) in the Commonwealth. Just when owners, operators, buyers, sellers and developers of real estate had grown accustomed to classifying the seriousness of a site based on a well-understood Numerical Ranking System, reporting to DEP and cleaning up a site based on established concentrations of contaminants detected in soil or groundwater, closing out a site based on a time-tested Response Action Outcome Statement, and controlling the future use of a site based on a predictable form of Activity and Use Limitation, DEP has again changed the rules of the road in important and at times confusing ways.

Most of the amendments take effect on June 20, 2014.  However, the new Reportable Concentrations, the elimination of a Tier I Permit, and the use new Tier Classification criteria took effect on April 25, 2014.

This article demystifies some important elements of the new MCP amendments such as the new closure requirements (Permanent and Temporary solutions instead of Response Action Outcome Statements); new solutions to old issues (free product, vapor intrusion and historic fill); new tools for addressing risks (Exposure Pathway Mitigation Measures); modified reporting and cleanup standards; and whether the end is really the end (Audits and Transitions).

In the process, we use a lot of capitalized terms (they are defined in the MCP) and acronyms (DEP can’t get along without them).  For more information on the MCP amendments – including DEP’s redlined version showing the changes to the prior version – click here.

Spoiler Alert – No More Response Action Outcome Statements

The summer of 2014 brings an end to the use of a Response Action Outcome (“RAO”) statement to conclude the ordeal of navigating through the MCP to a safe harbor.  In its place, Potentially Responsible Parties (“PRPs”) must now expressly achieve a permanent solution or, failing that, a suitable temporary solution, to escape or gain a measure of relief from the MCP.  Moreover, DEP has changed not only the name of the destination but also the means to achieve and document it.

For those familiar with the existing system of alpha-numeric RAOs, here’s the decoder ring:  The new gold medal is a “Permanent Solutions with No Conditions” that generally corresponds to the previous Class A-1, A-2 and B-1 Response Action Outcomes.  The new silver medal is a “Permanent Solutions with Conditions” that generally corresponds to the previous Class A-3, A-4, B-2 and B-3 Response Action Outcomes.  And the new bronze medal is a “Temporary Solution” that generally corresponds to the previous Class C-1 and C-2 Response Action Outcomes.  In each case, a Licensed Site Professional (“LSP”) must submit either a “Permanent Solution Statement” or a Temporary Solution Statement” to DEP in the form of an LSP Opinion to document the achievement of the solution in accordance with the MCP.  Properly documented, the solution can apply to an entire disposal site or to parts of a disposal site.

Permanent Solutions – When Silver is as Good as Gold

A “Permanent Solution with No Conditions” and a “Permanent Solution with Conditions” have a lot in common.  The PRP must:

  • achieve a level of No Significant Risk;
  • eliminate or control all Sources of OHM Contamination;
  • achieve control of plumes of dissolved OHM in groundwater and vapor-phase OHM in the Vadose Zone;
  • address non-aqueous phase liquid (“NAPL” – sometimes referred to as “free product”), if present;
  • eliminate all threats of OHM release; and
  • reduce the OHM concentrations in the environment as close to Background levels as feasible,

all in accordance with specific provisions of the MCP.  In either case, a Permanent Solution does not apply to any disposal site or part of a disposal site where groundwater concentrations exceed an applicable (or suitably analogous) standard in certain situations where the groundwater is categorized as GW-1 (the most highly protected classification of groundwater).

There are some important differences between the two types of Permanent Solutions, however, beyond the obvious observation that one has no conditions and the other is subject to conditions.  For a Permanent Solution with No Conditions to apply, OHM concentrations cannot exceed an applicable Upper Concentration Limit (“UCL”) in soil or groundwater, unless that level is consistent with Natural Background (e.g., naturally occurring arsenic in certain areas of the Commonwealth).  By contrast, a Permanent Solution with Conditions can apply if OHM concentrations exceed an applicable UCL in two situations: either the UCL exceedance in soil or groundwater is consistent with certain apparently acceptable man-made contamination (“Anthropogenic Background”) or the UCL exceedance in soil is out of harm’s way (located more than 15 feet below the ground surface or beneath an engineered barrier) and an LSP evaluation indicates that it is not feasible to reduce those OHM concentrations to less than or equal to the applicable UCL in soil.  Similarly, a Permanent Solution with No Conditions achieves and maintains a level of No Significant Risk for all current and foreseeable future use of the site without the need to rely upon an Activity and Use Limitation (“AUL”), whereas a Permanent Solution with Conditions maintains a level of No Significant Risk in part by relying on an AUL or on assumptions about future conditions.

DEP’s fancy term Anthropogenic Background essentially refers to OHM levels that would exist in the absence of the disposal site of concern because of factors such as fallout (atmospheric deposition of industrial process or engine emissions which are ubiquitous and consistently present in the environment at and in the vicinity of the disposal site of concern), Historic Fill, exempt sources, releases to groundwater from a public water supply system, or petroleum residues incidental to the normal operation of motor vehicles.  Since it is possible to achieve a Permanent Solution with Conditions where Anthropogenic Background accounts for a UCL exceedance, this rule provides an important MCP escape hatch, particularly in urban areas.

While an AUL is ordinarily an essential element of a Permanent Solution with Conditions, an AUL may be used – but is not required – where the Permanent Solution is based solely on one or more of the following four situations: where Best Management Practices are used for non-commercial gardening in a residential setting; where OHM concentrations are consistent with Anthropogenic Background levels; where residual contamination exists within a public way or a rail right-of-way; or where there is no occupied building or structure in an area in which the groundwater would otherwise be classified as GW-2 and the residual OHM concentrations in groundwater exceed the applicable GW-2 standards.  These AUL exceptions have important implications for property that is changing hands or being developed.  There may be conditions applicable to the Permanent Solution that are not memorialized in an AUL recorded in the Registry of Deeds.  Instead, the buyer’s or developer’s due diligence must now extend to the DEP website files applicable to the property to uncover the universe of applicable conditions.  In addition, where a Permanent Solution at a site with GW-2 exceedances is premised on the absence of an occupied building or structure, the solution may be not so permanent after all if the buyer or developer intends to construct an occupied building or structure in the affected area.  So don’t be fooled by the labels – investigate the nature and extent of the problem, the solution, and the conditions imposed to maintain the solution; otherwise, it may come back to bite in unfortunate (and expensive) ways.

Environmentally and legally speaking, achieving a Permanent Solutions with No Conditions is considered the best and hardest outcome to achieve.  As a practical matter, however, a Permanent Solution with Conditions is ordinarily a perfectly acceptable outcome.  Think of it this way: achieving a Permanent Solution with Conditions will probably be faster and more cost-effective than achieving a Permanent Solutions with No Conditions.  As long as the Permanent Solution with Conditions is consistent with the interested party’s (e.g., the owner’s buyer’s, seller’s or developer’s) current and foreseeable future use of the site, that party may be willing to compromise on the purity of the site and to abide by reasonable conditions to save time and money in the transaction, particularly if any remaining legal and environmental risk can be mitigated by such tools as price adjustments, covenants not to sue, brownfields subsidies, environmental insurance and indemnification agreements.

Permanent Versus Temporary Solutions – the NAPL Conundrum

Under the MCP, a Permanent Solution or a Temporary Solution must be achieved within applicable regulatory deadlines.  The basic idea is that a Temporary Solution is a suitable outcome while a Permanent Solution remains infeasible.  However, after a Temporary Solution is achieved, a Permanent Solution must eventually be achieved when it becomes feasible.  So a Temporary Solution is a kind of rest area, not a destination in itself.

Both Permanent and Temporary Solutions must adequately identify and address all unpermitted OHM releases to the environment, including subsurface migration of OHM (such as NAPL) remaining at the disposal site.  However, there are some important differences between Permanent Solutions and Temporary Solutions, which generally focus on the feasibility of achieving the desired result.  For example, a Permanent Solution must eliminate all Sources of OHM Contamination to the extent feasible and must control them to the extent they cannot be eliminated, whereas a Temporary Solution must eliminate or control all Sources of OHM Contamination to the extent feasible.  A Permanent Solution must ensure that plumes of dissolved OHM in groundwater and vapor-phase OHM in the Vadose Zone are stable or contracting, whereas a Temporary Solution must ensure that plumes of dissolved OHM in groundwater and vapor-phase OHM in the Vadose Zone are stable or contracting or otherwise controlled or mitigated to the extent feasible.

One of the main differences between a Permanent Solution and a Temporary Solution relates to the challenging problem of NAPL contamination – non-aqueous phase liquid that is either denser or lighter than water and therefore sinks below or floats on groundwater.  Replacing the much-criticized and arbitrary “half-inch” NAPL threshold, DEP has added two new definitions to characterize and new standards for the acceptable remediation of NAPL contamination.  “Non-Stable NAPL” means NAPL with a footprint that is expanding laterally or vertically.  It can migrate along a preferred flow path; discharge to a building, utility, drinking water supply well, or surface water body; or spread as a bulk fluid through or from subsurface strata.  “NAPL with Micro-Scale Mobility” means NAPL with a footprint that is not expanding, but which is visibly present in the subsurface in sufficient quantities to migrate or potentially migrate as a separate phase over a short distance and visibly affect an excavation, boring or monitoring well.  A Permanent Solution must now ensure that Non-Stable NAPL is not present (a classic regulatory double negative) under current site conditions and for the foreseeable future, and that all NAPL with “Micro-Scale Mobility” is removed to the extent feasible based upon consideration of Conceptual Site Model (“CSM”) principles (described below).  A Temporary Solution must remove and/or control –to the extent feasible – all Non-Stable NAPL and NAPL with Micro-Scale Mobility.  An AUL is required at a disposal site for which a Permanent Solution is achieved and NAPL with Micro-Scale Mobility is present.

By introducing CSM principles as a determining factor in establishing the difference between a permanent or temporary NAPL solution based on Micro-Scale Mobility, DEP has essentially authorized LSPs at NAPL sites to base the solution on the “body of fundamental scientific principles describing the behavior of fluid flow in porous media necessary to assess NAPL in subsurface strata.”  CSM allows the LSP to prepare a site-specific description of how contaminants entered the environment, how they have been and may be transported within the environment, and routes of exposure to human and environmental receptors.  CSM provides a dynamic framework for assessing site characteristics and risk, identifying and addressing data gaps and managing uncertainty, eliminating or controlling contaminant sources, developing and conducting response action strategies, and evaluating whether those strategies have been effective in achieving desired endpoints.

Exposure Pathway Mitigation Measures – The Gift that Keeps on Giving

In the new MCP amendments, DEP has introduced the concept of the “Exposure Pathway Mitigation Measure,” a remedial action specifically directed at an Exposure Pathway.  It eliminates exposure to human or ecological receptors or reduces that exposure to meet applicable performance standards.  There are two types of Exposure Pathway Mitigation Measures: active and passive.  An Active Exposure Pathway Mitigation Measure relies on the continual or periodic use of an on-site or in-situ mechanical or electro-mechanical device (think an active sub-slab ventilation system).  A Passive Exposure Pathway Mitigation Measure does not rely upon such use.  An Exposure Pathway Mitigation Measure can be implemented as part of a Permanent Solution with Conditions or a Temporary Solution.  If it is used as part of a Permanent Solution with Conditions, an AUL is required.

Use with a Permanent Solution with Conditions

Where an Active Exposure Pathway Mitigation Measure is implemented as part of a Permanent Solution with Conditions, it must be designed and shown (based on representative measurements of Exposure Point Concentrations during operation) to eliminate exposure to OHM to the extent feasible and to ensure that a condition of No Significant Risk is achieved and maintained for the Receptors of concern.  The operating regimen must be specified in a recorded AUL which addresses the Receptors of concern, normal operating conditions and parameters, the methods and frequency for monitoring, and the longest duration of a shutdown consistent with a level of No Significant Risk and no Imminent Hazard.  The active measure must “employ remote monitoring technology that will alert the owner and operator of the building protected by the Active Exposure Pathway Mitigation Measure and the Department immediately upon failure of the system, such as loss of power, mechanical failure or other significant disruption of the effectiveness of the system.”  The active measure must be consistently operated and maintained at a level of effectiveness that ensures a level of No Significant Risk is maintained for the Receptors of concern.

An Active Exposure Pathway Mitigation Measure cannot be used if its suspension or failure lasting 60 consecutive days would pose an Imminent Hazard or if the owner of the subject property lacks the financial resources for the immediate repair and/or replacement of components of the active measure in the event of its failure.

Imposing many ongoing burdens on the property owner, an Active Exposure Pathway Mitigation Measure should not be undertaken lightly.  If the active measure is suspended or fails, the owner must undertake immediate steps to return it to full operating condition.  If the suspension or failure lasts 30 days, the owner must immediately notify “both the Department and any non-transient occupants of the building protected by such Measure” who may have experienced exposure to OHM as the result of the suspension or failure.  The owner must annually certify that that s/he is aware of the obligation to operate and maintain the system, to repair or replace components, to resume operation in the event of suspension or failure, and to allow DEP upon reasonable notice to inspect the active measure.  The owner must also certify annually that financial resources are available for the immediate repair and/or replacement of components of the active measure in the event of a failure and that the active measure is properly operating.  Once a Permanent Solution with Conditions is based upon the operation of an Active Exposure Pathway Mitigation Measure, the operation of the active measure may only be terminated following a revised Permanent Solution Statement concluding that the active measure is no longer necessary and supported by an adequate Risk Characterization to support the conclusion that No Significant Risk would exist without the active measure.

Use with a Temporary Solution

Similar but not identical considerations apply to an Active Exposure Pathway Mitigation Measure implemented as part of a Temporary Solution (or Remedy Operation Status).  If a PRP anticipates implementing an active measure in such a case, the PRP must consult the MCP to confirm that it can and will be properly designed, operated, maintained consistently within design parameters to achieve its objective.

Vapor Intrusion – Tighter Standards but Simpler Solutions

The MCP amendments reflect DEP’s increasing concern about vapor intrusion, the volatilization of contaminants from groundwater or soil beneath a building into the indoor air.  The MCP now requires that certain vapor intrusion risks are addressed immediately and that the potential for vapor intrusion is fully evaluated at all contaminated sites.  DEP has also tightened cleanup standards for certain volatile organic compounds (“VOCs”) associated with vapor intrusion.  The net result of these changes is likely to increase costs for assessment and remediation at sites with VOCs in soil or groundwater.  Accompanying MCP changes are intended to make it easier to achieve closure at these sites, but they too have some downsides.

  • Increased Vapor Intrusion Concerns

The MCP amendments expand and clarify the scope of potential vapor intrusion risks that must be reported to DEP within 72 hours.  Under previous MCP provisions, if a person discovered a release that had resulted or was “likely to result” in vapor intrusion at a school or occupied residential dwelling, that release had be reported to DEP within 72 hours of its discovery.  The new MCP amendments broaden the 72-hour reporting requirement to include releases that “have the potential to result in” vapor intrusion into a school, daycare center or occupied residential dwelling.  DEP has defined each of those facilities in the MCP, and has listed conditions that indicate “potential” vapor intrusion (e.g., a VOC present above the relevant groundwater standard within 30 feet of the structure, if the depth to groundwater is 15 feet or less).  A 72-hour reporting condition triggers the requirement to conduct an Immediate Response Action (“IRA”), so the MCP amendments now require more vapor intrusion risks to be addressed by IRAs.

The requirements for assessing vapor intrusion risks in all phases of the site assessment process are now more prescriptive.  Notably, indoor air concentrations of VOCs must be measured rather than modeled, except at sites where disposal-site-related contamination cannot be distinguished from interior sources resulting from current commercial or industrial operations. The revised regulations explicitly prohibit the use of modeling to evaluate potential vapor intrusion risks in a hypothetical future building on a currently vacant site.  (See below for a discussion of how such sites must now be addressed.)

DEP has tightened eleven GW-2 groundwater standards based on vapor intrusion potential, and has loosened only three.  These changes will likely increase the number of sites at which vapor intrusion is considered a potential risk.  For example, the GW-2 standard for trichloroethylene (“TCE”), a solvent often found at manufacturing sites, has been tightened from 30 to 5 µg/L, and DEP has released detailed guidance on assessing TCE risks in indoor air.  DEP has not (yet) announced whether it plans to audit closed sites where TCE was a contaminant of concern, as it did after the perchloroethylene (PCE) standard was tightened in 2006.

See below for a discussion of changes to the clean-up and reporting standards for certain vapor intrusion contaminants.

  • New Vapor Intrusion Solutions

Along with the increased focus on vapor intrusion risks, DEP has included two provisions that facilitate closure of sites with vapor intrusion risks.  As these solutions do not necessarily eliminate the source of the problem, it is important to “read the fine print” on the vapor intrusion remedy.

First, the MCP amendments allow the closure (by a “Permanent Solution with Conditions”) of a site with an active sub-slab ventilation system to eliminate vapor intrusion risks.  Previously, a “Permanent Solution” could not be achieved if such a system was needed.  (An active sub-slab ventilation system typically uses a fan to remove vapors from below a building’s foundation; passive measures generally rely on barriers to prevent vapors from entering a building.)  However, as noted above, closure with an active system has cumbersome requirements, including remote system monitoring, public notification, certification of the property owner’s financial ability to maintain the system, and annual reporting.  Given these burdens, it is not clear whether property owners or buyers will view this as a viable option.

Second, the MCP addresses closure of sites with VOCs present in shallow groundwater above GW-2 standards, where no building currently exists but one could be built in the future.  While modeling can no longer be used to demonstrate a condition of No Significant Risk for that future use scenario, the MCP now allows the closure of such sites without an AUL.  Instead, a “Permanent Solution with Conditions” can be used, which requires conditions to be posted to DEP’s website rather than by means of a recorded notice at the Registry of Deeds.  This option makes it easier to achieve closure in this scenario and leaves future use options open, but to avoid the red flag of “conditions,” the responsible party must clean shallow groundwater to GW-2 standards.

In short, owners and developers of sites contaminated with VOCs should be prepared for more vapor intrusion headaches; time will tell whether DEP has also provided workable remedies.

Historic Fill – Defining a Way Around a Widespread Problem

The MCP now includes a new approach to “historic fill,” the material underlying much of Massachusetts’ built environment, particularly in urban areas.  Up to now, site owners and LSPs have been left to wonder what to do when remediation has cleaned up a site’s contamination to the level in surrounding materials but those materials are themselves contaminated.  In the past, the solution has often been to cap the site or to impose an AUL on it.  Consistent with the DEP’s shift toward more flexible avenues for site closure, the MCP amendments allow the newly defined (but long-encountered) category of “historic fill” to be left in place, untreated, even where it contains hazardous materials above natural background concentrations.  Although this new route to site closure comes with a number of caveats and conditions, it is anticipated to be a welcome development for PRPs, especially in urban areas slated for re-development.

To understand how the new “leave in place” provisions will work, it is important to understand what historic fill is (and what it is not).  The new definition specifies that historic fill is “fill material” that “based on the weight of evidence” and consistent with a site’s Conceptual Site Model (a) was placed on the site before January 1, 1983 (the advent of the MCP); (b) contains, but is not primarily composed of, construction and demolition debris, reworked soils, dredge spoils, coal ash or other solid waste materials; and (c) was contaminated with metals, hydrocarbons, or PAHs prior to its placement as fill in a manner consistent with the use and release of these materials prior to 1983. Put another way, historic fill is generally material that was brought onto a site before 1983 to help, well, fill it in an era of assumed blissful ignorance of hazardous waste risks associated with such fill.  It is not material that was generated at the site or moved around as waste or material containing especially toxic wastes.

Establishing that OHM concentrations are the result of historic fill will thus require PRPs and their LSPs to investigate the history of the site, analyze potential sources for information on fill materials placed at a site well before DEP kept records of such activities, and exercise judgment as to whether the material in question contains, but is not primarily composed of, the acceptable forms of fill.  Due diligence will now include a resurgence of research at the local public library, City Hall, or historical society to pore over yellowing permits, newspaper articles, and other primary sources of historic development trends.

Once the age and likely source of fill is identified, it will be important to determine whether the fill contains materials that cause it to fall outside of the new definition of “historic fill,” namely:  (a) oil or hazardous materials from operations at the site where the material is now located; (b) a generated hazardous waste other than oil or waste oil; (c) chemical production, manufacturing or metal or mineral waste; or (d) waste material disposed in a municipal solid waste dump, burning dump, landfill waste lagoon or waste disposal location.

Assuming a PRP has the “right” kind of historic fill on-Site, the definition of “historic fill” dovetails with the definition of “anthropogenic background” discussed above.  Anthropogenic background is the level of oil and hazardous materials that would exist in the absence of a disposal site of concern attributable to various non-natural factors including historic fill.  Under the revised MCP, an AUL may be used, but is not required, where oil and hazardous material concentrations are at or below anthropogenic background for soil or groundwater.  A Permanent Solution with Conditions may also be reached where concentrations are at or below the anthropogenic background, provided other conditions to maintain a status of “no significant risk” are in place.  See above.

In short, the presence of historic fill will no longer stand in the way of site closure.  However, the closure would be “with conditions,” and must include sufficient documentation to alert future users, owners or developers of the Site that it is closed with historic fill in place and may not suitable for certain forms of development in the future.  For instance, a site closed with conditions due to the presence of contaminated historic fill may require further risk analysis before redevelopment for residential use that would cause certain potential exposures.  However, even with these limitations, DEP’s attempt to define and more flexibly regulate historic fill provides practical opportunities for PRPs to be reuse historically contaminated properties.

See below for a discussion of some contaminants often found in historic fill.

MCP Reporting and Cleanup Standards – Good News and Bad News

The new MCP reporting and cleanup standards deliver both good news and bad news for owners and developers of contaminated sites.  Incorporating updated toxicity information, DEP has revised the numeric cleanup standards and notification thresholds for a number of chemicals and metals.  Of the numerical standards in the previous version of the MCP, DEP tightened 192 (10%); loosened 408 (21%); and left 1328 (69%) the same.  To illustrate the effect of the new standards, we examine a number of hazardous materials commonly encountered at contaminated sites in the Commonwealth.

Note:  While most of the MCP amendments take effect June 20, 2014, the Reportable Concentrations for Oil and Hazardous Material in groundwater or soil listed in the Massachusetts Oil and Hazardous Material List took effect on April 25, 2014.  The new 2014 thresholds for hazardous materials discussed below are therefore currently in effect.

  • Affected Numerical Standards

The 2014 MCP amendments affected the following four sets of numerical standards:

(1) Reportable Concentrations (“RCs”); (2) Method 1 Standards; (3) Direct Contact Soil Standards; and (4) Upper Concentration Limits (“UCLs”) in Groundwater & Soil.

Reportable concentrations define notification requirements for contamination discovered in soil and groundwater.  Property owners and others must notify DEP if a site contains OHM above the applicable RC level.  Method 1 Standards generally represent levels at which hazardous materials pose “no significant risk” to public health, welfare or the environment.  These generic Method 1 Standards can be supplemented or modified with site- and chemical-specific information under the Method 2 risk characterization approach or Method 3 site-specific risk assessment.  Any modifications to Method 1 Soil Standards may not exceed levels established in the Direct Contact Soil Standards.  At the other extreme, UCLs represent levels above which contaminants may pose a significant risk of harm to public health, welfare and the environment.

  • Illustrative Soil Standards

DEP has long classified soil into three categories generally depending on the accessibility of the soil (measured by depth) and the human activities that occur or may occur at the surface.  The strictest (S-1) soil standards apply to properties associated with high potential exposure to soil or frequent use by children, such as residential use, parks, playgrounds and schoolyards.  Therefore, S-1 standards consider the likelihood of incidental ingestion of soil, dermal contact with the soil, and ingestion of produce grown in the soil.  In the 2014 MCP updates, DEP has moved to a new regulatory approach for non-commercial gardening in residential settings which relies on best management practices to limit potential human exposure from urban gardening.  In part as a result of this change and the accompanying decreased health risk from ingesting produce grown in S-1 soil, DEP has dramatically loosened (increased) the S-1 soil standards for two metals – nickel and cadmium.  These contaminants will now pose less of an obstacle to a permanent solution for owners and developers closing sites contaminated with these metals.

By contrast, DEP tightened (lowered) the S-1 soil standard for lead, vanadium and polychlorinated biphenyls (“PCBs”) (a class of compounds historically used in industrial and commercial applications like electrical, heat transfer and hydraulic equipment; plasticizers in paint, plastics and rubber products; and other applications).  The lower value for PCBs in the S-1 soil category now mirrors the cleanup level for PCBs established by the federal Toxic Substance Control Act (“TSCA”).

Table 1.

Illustrative Method 1 Changes for S-1 Soil Standards

OHM

2008

2014

Cadmium

2 mg/kg

70 mg/kg

Nickel

20 mg/kg

600 mg/kg

Lead

300 mg/kg

200 mg/kg

PCBs

2 mg/kg

1 mg/kg

Vanadium

600 mg/kg

400 mg/kg

At the same time, DEP loosened the standards for lead and PCBs for properties associated with moderate exposure to soil or infrequent/light use by children, such as retail use and landscaped areas (S-2 soil category), and for properties associated with low exposure to soil or unlikely use by children (S-3 soil category).  According to DEP, the stricter cleanup level for lead takes into account levels typically found in the soil, while that for PCBs responds to updated toxicity studies.

Table 2.

Illustrative Method 1 Changes for S-2 and S-3 Soil Standards

Hazard

2008

2014

Cadmium

30 mg/kg

100 mg/kg

Lead

300 mg/kg

600 mg/kg

Nickel

700 mg/kg

1000 mg/kg

PCBs

3 mg/kg

4 mg/kg

Vanadium

1000 mg/kg

700 mg/kg

DEP also notably loosened groundwater and S-3 soil standards for arsenic from 20 mg/kg to 50 mg/kg.

While DEP’s approach to regulating some these compounds in soil may seem contradictory – significantly tightening the allowed limit of lead and PCBs in S-1 soils while simultaneously loosening the acceptable concentration in S-2 and S-3 soils – this approach is consistent with the exposure-based philosophy of the MCP.

Similarly, DEP tightened reportable concentrations for both lead and PCBs in S-1 soil but loosened reportable concentrations for them in S-2 soil.  Vanadium, however, continues to have a lower reportable concentration threshold in both S-1 and S-2 soils.

Table 3.

Illustrative Reportable Concentrations for S-1 Soil

Hazard

2008 Concentrations

2014 Concentrations

Cadmium

2 µg/g

70 µg/g

Nickel

20 µg/g

600 µg/g

Lead

300 µg/g

200 µg/g

PCBs

2 µg/g

1 µg/g

Vanadium

600 µg/g

400 µg/g

 * 1 microgram/gram (µg/g) = 1 milligram/kilogram (mg/kg)

Table 4.

Illustrative Reportable Concentrations for S-2 Soil

Hazard

2008 thresholds

2014 thresholds

Cadmium

30 µg/g

100 µg/g

Nickel

700 µg/g

1000 µg/g

Lead

300 µg/g

600 µg/g

PCBs

3 µg/g

4 µg/g

Vanadium

1000 µg/g

700 µg/g

 * 1 microgram/gram (µg/g) = 1 milligram/kilogram (mg/kg)

Removing an impediment to closure for property owners and other PRPs, DEP similarly increased UCLs for arsenic, cadmium, lead and nickel, common hazardous compounds that used to be a limiting factor.  DEP tightened the UCL only for vanadium.

Table 5.

Illustrative Changes for UCLs in Soil

Hazard

2008 thresholds

2014 thresholds

Arsenic

200 µg/g*

500 µg/g

Cadmium

300 µg/g

1000 µg/g

Lead

3000 µg/g

6000 µg/g

Nickel

7000 µg/g

10000 µg/g

Vanadium

10000 µg/g

7000 µg/g

 * 1 microgram/gram (µg/g) = 1 milligram/kilogram (mg/kg)

 

  • Illustrative Groundwater Standards

In addition to updating soil standards, DEP has revised cleanup standards that apply to groundwater that is either a current or future source of drinking water (GW-1); groundwater that is shallow where a structure is currently built above it (GW-2); and all other groundwater (GW-3).

Of particular concern to owners, developers and other PRPs, DEP significantly tightened the standard for trichloroethylene (“TCE”) and the “cis” form of dichloroethylene (“cis-1,2-DCE”) for GW-2 groundwater to address the potential for vapor intrusion into the indoor air.  DEP is still reviewing toxicity levels for tetrachloroethylene (“PCE” or “perc”) in GW-2 groundwater and may lower those levels in a subsequent revision of the MCP.  All three compounds – TCE, PCE and cis-1,2-DCE – are colorless organic liquids often used in industrial degreasing, dry cleaning, and the manufacture of plastic wrap, adhesives and synthetic fibers, respectively.

Table 6.

Illustrative Method 1 Changes for GW-2 Standards

Hazard

2008 thresholds

2014 thresholds

TCE*

30 µg/L

5 µg/L

cis-1,2-DCE

100 µg/L

20 µg/L

PCE

50 µg/L

50 µg/L**

*GW-1 groundwater standards for TCE were similarly changed

** DEP may reduce this PCE threshold to 20 µg/liter in the future

DEP’s significant reduction of acceptable levels of TCE and cis-1,2-DCE in the MCP will affect property owners, developers and others dealing with contaminated sites formerly used in industrial processes like machining, manufacturing of computer chips and metal finishing.

  • Summary for TCE

While the UCL for TCE in groundwater stayed constant, the UCL for TCE in soil was significantly tightened.  Similarly, the reportable concentrations for TCE remained constant for GW-1 groundwater and S-1 soil but were dramatically tightened for GW-2 groundwater and S-2 soil standards.

Table 7.

Summary of Changes for TCE

Standard

2008 thresholds

2014 thresholds

UCL for GW

50000 µg/L

50000 µg/L

UCL for Soil

10000 µg/g

600 µg/g

RC for GW-1

0.005 mg/L

0.005 mg/L

RC for GW-2

0.03 mg/L

0.005 mg/L

RC for S-1

0.3 µg/g

0.3 µg/g

RC for S-2

2 µg/g

0.3 µg/g

  • Historic Fill

As noted above, the MCP amendments significantly change the definition of and approach to “historic fill” emplaced before January 1, 1983.  While DEP has made it much easier to leave contaminated historic fill in place, DEP has revised – and in some cases tightened – the clean-up and reporting standards applicable to chemical constituents that may be associated with historic fill.  In addition to the metals and hazardous compounds discussed above, property owners and others dealing with historic fill sites should take note of the revised standards for certain potential carcinogenic polycyclic aromatic hydrocarbons (“PAHs”) like benzo(a)pyrene and naphthalene.

DEP has loosened the standards for benzo(a)pyrene in groundwater and S-2 soil but tightened the standards for naphthalene in soil and GW-1 and GW-2 groundwater.  The reportable concentrations for benzo(a)pyrene has remained constant in all groundwater standards but increased for S-2 soil, while reportable concentrations for naphthalene remained constant for GW-1 groundwater and S-1 soil but decreased in GW-2 groundwater and S-2 soil.

Table 8.

Method 1 Changes for Illustrative PAHs

Hazard

2008 thresholds

2014 thresholds

Standard

Benzo(a)pyrene

4 µg/g

7 µg/g

GW-1

GW-2

GW-3

S-2

Napthalene

1000 µg/L

700 µg/L

GW-1

40 µg/g

20 µg/g

GW-2

S-1

S-2

S-3

Table 9.

Reportable Concentrations for Illustrative PAHs

Hazard 2008 thresholds 2014 thresholds Standard
Benzo(a)pyrene 4 µg/g 7 µg/g S-2
Napthalene 1 mg/L 0.7 mg/L GW-2
40 µg/g 20 µg/g S-2
  • Gasoline Contaminated Properties

Property owners and others dealing with sites potentially contaminated with gasoline should be aware of the changed cleanup standards for typical gasoline contaminants benzene and xylene (two of the four contaminants collectively referred to as “BTEX”).  Benzene is a human carcinogen and a constituent of gasoline, while xylenes are found in crude oil, gasoline and airplane fuels.

DEP tightened the reportable concentrations for benzene in GW-2 groundwater and xylenes (mixed isomers) in soil and groundwater.  While Method 1 risk assessment standards were generally tightened for xylenes, only S-3 and GW-2 standards were tightened for benzene.  At the same time, DEP loosened the UCL for benzene, which should remove an obstacle to closure for certain sites burdened by high levels of benzene.

Table 10.

Illustrative Method 1 Changes for Gasoline Constituents

Hazard 2008 thresholds 2014 thresholds Standard
Benzene 2 mg/L 1 mg/L RC for GW-2
30 µg/g 40 µg/g

S-1 & GW-3

S-1 & GW-2

700 µg/g 400 µg/g S-3 & GW-2
900 µg/g 1000 µg/g S-3 & GW-3
2000 µg/L 1000 µg/L GW-2
9000 µg/g 10000 µg/g UCL in soil

Xylenes

(mixed isomers)

5 mg/L 3 mg/L RC for GW
300 µg/g 100 µg/g RC for soil
300 µg/g 100 µg/g

S-1 & GW-2

S-2 & GW-2

S-3 & GW-2

9000 µg/L 3000 µg/L GW-2

For newer gasoline releases, the limiting factor for reporting and clean-up is often benzene.  However, for older historic releases (where the more volatile benzene has dissipated), the tightened xylene levels will further burden owners and other PRPs.

  • Pesticide Contaminated Properties

Owners, developers, and other PRPs for sites likely contaminated with pesticides should take note of revised pesticide standards, such as for aldrin, dieldrin, endrin, endosulfan, hexachlorobenzene (“HCB”) and 2, 3, 7, 8-tetrachlorodibenzodioxin (“2, 3, 7, 8-TCDD”). Before being banned in most countries, aldrin was used as a pesticide to treat seed and soil, dieldrin was used as an alternative to DDT, endrin was primarily used to control cotton insect pests, endosulfan has been used for crops, hexachlorobenzene was used as a fungicide to treat wheat, and 2, 3, 7, 8-TCDD is a known contaminant in Agent Orange.  Aldrin, dieldrin, endrin, endosulfan, and hexachlorobenzene are also known as persistent organic pollutants (“POPs”) that resist environmental degradation, can be transported long distances through the atmosphere, and bioaccumulate in food chains and human/animal tissue.  Hexachlorobenzene is particularly harmful to the aquatic environment in the long term.

In the MCP amendments, DEP has loosened the standards for a majority of these compounds commonly found in pesticides with the notable exception of hexachlorobenzene and 2, 3, 7, 8-TCDD, which were significantly tightened.

Table 11.

Illustrative Method 1 Changes for Pesticide Compounds

Hazard 2008 thresholds 2014 thresholds Standard
Aldrin 0.04 µg/g

0.08 µg/g

S-1 & GW-1

S-1 & GW-2

S-1 & GW-3

0.4 µg/g 0.5 µg/g

S-2 & GW-1

S-2 & GW-2

S-2 & GW-3

1 µg/g

3 µg/g

S-3 & GW-1

S-3 & GW-2

S-3 & GW-3

20 µg/L 30 µg/L GW-3
Dieldrin 0.05 µg/g

0.08 µg/g

S-1 & GW-1

S-1 & GW-2

S-1 & GW-3

0.4 µg/g

0.5 µg/g

S-2 & GW-1

S-2 & GW-2

S-2 & GW-3

2 µg/g 3 µg/g

S-3 & GW-1

S-3 & GW-2

S-3 & GW-3

Endosulfan 200 µg/g 300 µg/g S-1 & GW-2
300 µg/g

500 µg/g

S-2 & GW-2

S-3 & GW-2

Endrin 8 µg/g 10 µg/g

S-1 & GW-1

S-1 & GW-2

S-1 & GW-3

10 µg/g 20 µg/g

S-2, S-3 & GW-1

S-2, S-3 & GW-2

S-2, S-3 & GW-3

Hexachlorobenzene 5 µg/g

0.8 µg/g

S-2 & GW-1

S-2 & GW-2

S-2 & GW-3

30 µg/g 0.8 µg/g

S-3 & GW-1

S-3 & GW-2

S-3 & GW-3

2, 3, 7, 8-TCDD 0.0003 µg/g 0.00005 µg/g

S-3 & GW-1

S-3 & GW-2

S-3 & GW-3

Of the pesticide compounds noted, DEP loosened the UCL in groundwater only for aldrin.  PRPs dealing with military bases should be aware of dramatically tightened UCLs for hexachlorobenzene and 2, 3, 7, 8-TCDD in soil but not groundwater.

Table 12.

Illustrative Changes of Pesticide UCLs in Groundwater

Hazard 2008 thresholds 2014 thresholds
Aldrin 200 µg/L 300 µg/L
Dieldrin 80 µg/L 80 µg/L
Endosulfan 100 µg/L 100 µg/L
Endrin 50 µg/L 50 µg/L
Hexachlorobenzene 60000 µg/L 60000 µg/L
2, 3, 7, 8-TCDD 0.4 µg/L 0.4 µg/L


Table 13.

Illustrative Changes of Pesticide UCLs in Soil

Hazard 2008 thresholds 2014 thresholds
Aldrin 10 µg/g 30 µg/g
Dieldrin 20 µg/g 30 µg/g
Endosulfan 3000 µg/g 5000 µg/g
Endrin 100 µg/g 200 µg/g
Hexachlorobenzene 300 µg/g 8 µg/g
2, 3, 7, 8-TCDD 0.003 µg/g 0.0005 µg/g

DEP generally loosened the reportable concentrations of pesticide compounds in soil but significantly tightened the reportable concentration of hexachlorobenzene in S-2 soil.

Table 14.

Illustrative Changes in Reportable Concentrations in S-1 soil

Hazard 2008 thresholds 2014 thresholds Standard
Aldrin 0.04 µg/g 0.08 µg/g S-1
0.4 µg/g 0.5 µg/g S-2
Dieldrin 0.05 µg/g 0.08 µg/g S-1
0.4 µg/g 0.5 µg/g S-2
Endrin 8 µg/g 10 µg/g S-1
10 µg/g 20 µg/g S-2
Hexachlorobenzene 0.7 µg/g 0.7 µg/g S-1
5 µg/g 0.8 µg/g S-2

Audits and Transitions

DEP can and will audit a sufficient number of sites to ensure that response actions are performed in compliance with the MCP.  DEP will generally initiate random audits within two years of a Permanent Solution, and targeted audits within five years of a Permanent Solution.  However, DEP has reserved 11 broad exceptions allowing it to initiate a Targeted Audit well beyond the five-year mark.  For example, it may initiate a Targeted Audit after five years of site closure if it “has reason to believe” that “a significant risk of harm to health, safety, public welfare or the environment may exist at a site, or in the vicinity of a site, for which a Permanent Solution Statement has been submitted to DEP.”  So a Permanent Solution is only as permanent as the auditing luck of the draw or, in the event of an audit, as the audit results and compliance.

In any audit, DEP should base its finding of violations or assessment of penalties on the MCP and Response Action Performance Standard in effect at the time of its receipt of the submittal.  If a site is audited, the property owner or other PRP can expect DEP to issue one of three possible remedial outcomes (in addition to various technical corrections that it may require):

(1)   no additional remedial work is required at the site based on compliance with the applicable cleanup standards and acceptable site conditions;

(2)   additional remedial work is required due to noncompliance with applicable cleanup standards; or

(3)   additional remedial work is required because, despite compliance with cleanup standards in effect at the time, unacceptable site conditions now exist based on the revised cleanup standards.

Given the breadth of the third outcome, a party faced with an audit should seek the advice of both an LSP and qualified legal counsel, particularly if DEP seeks to apply the revised MCP cleanup standards to a previously closed site.

Under the MCP Transition Provisions, Response Action Outcomes submitted before the effective date of the new MCP amendments automatically correspond to the analogous Permanent or Temporary Solution (a Class A-1 RAO becomes a Permanent Solution with No Conditions, etc.).  While the RAO should be measured by the MCP in effect at the time it was submitted, DEP may be tempted to evaluate a recent RAO that is still within the audit period through the lens of the current MCP where its stricter requirements are viewed as essential to maintaining a permanent condition of No Significant Risk.

Conclusion

Just as it took many years for the regulated community to fully understand and apply DEP’s prior versions of the MCP, so too it will take a learning curve for the regulated community to incorporate the new MCP amendments not only into site clean-ups but also into the purchase, sale, development and financing of real estate in Massachusetts.

 

About the Author

Jessica A. Wall – Associate

Jessica helps clients with environmental, municipal, and litigation matters.


About the Author

Mina S. Makarious – Partner

Mina represents clients on municipal, environmental, land use, and airport matters.

Please contact him at (617) 621-6525 or mmakarious@andersonkreiger.com.


About the Author

Stephen D. Anderson – Partner

Steve represents clients with complex governmental, permitting, land use and environmental matters.

Please contact Steve with any questions at 617.621.6510 or sanderson@andersonkreiger.com.


Posted In: DEP, Real Estate

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