Guest post by Adam J. Last, PE, LSP of Corporate Environmental Advisors, Inc.

The Massachusetts Department of Environmental Protection (MassDEP) has proposed significant amendments to the Massachusetts Contingency Plan (MCP), the regulations governing the assessment and remediation of oil and hazardous material releases. The proposed changes are part of Governor Deval Patrick’s Regulatory Reform Initiative intended to streamline small business regulations and improve government efficiencies.

The proposed amendments cover a wide range of topics. In this two-part series, we highlight the more significant proposed amendments. In this Part I, we summarize the proposed amendments for streamlining site classification, simplifying site closure options, and streamlining Notice of Activity and Use Limitation (AUL) requirements. Part II will provide an overview of the proposed amendments updating the assessment and closure requirements for sites where non-aqueous phase liquid (NAPL) is present, presenting a new definition of “Background,” and creating a new regulatory endpoint for sites where vapor intrusion is being mitigated.

Site Classification

The current practice of scoring a disposal site using the Numerical Ranking System Scoresheet to determine its classification will be a thing of the past and replaced by a comparison of site conditions to a short list of Tier I Criteria. Sites that meet one or more Tier I Criteria would be classified as a Tier I site, and those that do not would be classified as a Tier II site. Under the proposed system the Tier IA, Tier IB and Tier IC subclasses would be eliminated.

Site Closure Categories

Under the proposed amendments the nine current Response Action Outcome (RAO) subcategories would be simplified to three types of outcomes: Permanent Solution with No Conditions, Permanent Solution with Conditions, and Temporary Solution. The Permanent Solution with Conditions endpoint is applicable to disposal sites where: (1) an Activity and Use Limitation is required and in effect to maintain a condition of No Significant Risk, and/or (2) Exposure Pathway Elimination Measures are required and in effect to maintain a condition of No Significant Risk.

Notice of Activity and Use Limitation (AUL) Requirements

A Notice of Activity and Use Limitation (AUL) is a deed notice recorded at the Registry of Deeds to document limitations on site activities and uses necessary to maintain a Permanent or Temporary Solution at a disposal site where there is residual contamination. Proposed revisions to the AUL provisions include a requirement to provide details of disposal site conditions and the location and type of residual contamination in the AUL Form, the elimination of a separate AUL Opinion, and a requirement that property owners submit documentation to MassDEP to confirm the incorporation of an AUL into future deeds. By including information that is provided in the AUL Opinion within the AUL Form, the AUL Opinion would become redundant.

MassDEP recognizes that when properties with AULs are transferred, occasionally reference to the Notice of AUL is inadvertently omitted from the deed. To improve notice of AUL conditions to future property owners, MassDEP would require that a copy of the deed referencing the Notice of AUL be submitted to MassDEP within 30 days of its recording or registering.

The proposed MCP changes, when made effective, are intended to reduce regulatory compliance costs and provide some sites that have been in regulatory limbo with options to help meet a regulatory endpoint. MassDEP is seeking comments to the proposed regulatory changes through May 17, 2013 when the comment period closes. Additional information and the proposed amendments are available for review at MassDEP’s website here. Stay tuned to On Solid Ground for Part II of this two-part series on the MCP amendments, which will be published next week.

For questions regarding MCP compliance and the proposed amendments to the MCP, please contact Adam Last, a Professional Engineer and Licensed Site Professional in the environmental engineering group of Corporate Environmental Advisors, at (508) 835-8822 or via email at alast@cea-inc.com. For questions regarding environmental liability concerns or disputes, contact David McCay, a Massachusetts environmental attorney at Mirick O’Connell at (508) 791-8500 or via email at dmccay@mirickoconnell.com.