Environmental and Land Use Law

Updates on Environmental and Land Use Law in New England and the US from Anderson & Kreiger LLP

Article

How Green is Clean? DEP’s New Guidance on Greener Cleanups

greener cleanups

How green is clean?

How much do cleanups pollute? The Massachusetts Department of Environmental Protection (DEP) recently issued a draft guidance that focuses on the often-overlooked reality that cleanups themselves use energy and natural resources. The guidance requires those performing environmental cleanups to consider “how green is clean?” DEP’s proposal could be improved by providing examples of how to apply these new standards for “greener cleanups” and how these standards will affect cleanup costs.

“Greener cleanups” consider “all environmental effects” of a cleanup of pollutants at a site and incorporate “options to minimize the environmental footprint” of those cleanups. In its guidance, DEP joins the U.S. Environmental Protection Agency and other institutions in identifying this important consideration.

In its 2014 Massachusetts Contingency Plan (“MCP”) amendments, DEP added greener cleanup considerations to its regulations on Response Action Performance Standards (“RAPS”), 310 CMR 40.0191(3)(e), and Detailed Evaluation Criteria, 310 CMR 40.0858(4)(c). Consistent with the MCP amendments, the new guidance supports ways to eliminate or reduce a cleanup’s footprint “to the maximum extent possible”. The approach focuses on five key factors: (1) minimizing total energy use and maximizing renewable energy use; (2) minimizing air pollutants and greenhouse gas emissions; (3) minimizing water use and impacts to water resources; (4) reducing, reusing and recycling material and waste; and (5) protecting land and ecosystems.

DEP encourages the use of ASTM’s (the American Society for Testing and Materials) Standard Guide for Greener Cleanups. That guide provides protocols for evaluating a cleanup’s footprint. DEP’s approach applies to all cleanups, with the exception of situations in which the risk to human health or the environment is so high that urgent action is required to alleviate the risk. The LSP Association generally supports DEP’s greener cleanup approach, but has requested examples of the approach and its applicability to emergency situations. The LSPA has also expressed concern that the ASTM Guide is not freely available to the public.

DEP’s guidance integrates cleanup efforts with DEP’s goal of environmental remediation and protection. In effect, greener cleanups avoid a “two steps forward, one step backward” approach to environmental interests. However, DEP could improve its draft guidance by including more concrete examples of to weigh greener cleanup approaches against other more traditional ones and by further explaining how greener cleanup considerations will affect cleanup costs. Because LSPs must consider greener approaches “to the maximum extent possible,” it remains to be seen how the final guidance may force LSPs to balance greener cleanup measures against increased costs to the responsible party. Simply put, must an LSP utilize greener cleanup measures if those measures cost more than a traditional approach for the same degree of remediation?

DEP’s comment period on this draft guidance closed on July 1, 2014. When DEP issues a further guidance on greener cleanups, it may resolve these concerns.

Image Credit: Jo Naylor

About the Author

Jessica A. Wall – Associate

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


Posted In: DEP

Find an Attorney