MassDEP’s New Cleanup Regulations Are Now Effective

Sudbury Reservoir in SouthboroughAs we reported earlier in guest posts from Adam Last of Corporate Environmental Advisors, Inc. here and here, the Massachusetts Department of Environmental Protection (MassDEP) has long been working on significant revisions to the Massachusetts Contingency Plan (MCP).  The MCP governs the assessment and remediation of oil and hazardous material releases.  As of June 20, 2014, the new regulations are now effective. 

While we won’t endeavor to provide a comprehensive review of the revisions (the revised MCP is over 600 pages), here’s a thumbnail sketch of the changes: 

  • Non-Aqueous Phase Liquids (NAPLs):  NAPLs come in two forms.  Light NAPLs (LNAPLs), such as gasoline, are less dense than water.  Dense NAPLs (DNAPLs), such as the common solvent trichloroethylene, are more dense than water.  The MCP amendments revise the definitions, notification requirements, assessment and closure requirements related to NAPLs.  Under the old MCP, any site with more than a ½ inch of LNAPL could not achieve a Permanent Solution, which prevented the closure of those sites.  Risk is now evaluated based on the mobility, stability and recoverability of LNAPL at the site.  Some sites with Non-Stable LNAPL can now be closed out with an Activity and Use Limitation (AUL). 
  • Vapor Intrusion: Under the old MCP, any sub-slab depressurization system was considered a Temporary Solution.  Recognizing the longstanding reliability of fan-driven radon remediation systems, MassDEP revised the MCP to allow sub-slab depressurization systems as part of a Permanent Solution, provided sensors are in place to monitor system performance, and remote monitoring technology is installed to alert the owner, tenant (or operator) and MassDEP in the event of system failure.
  • Historic Fill:  The MCP amendments revise the definition of Background to consider both natural and man-made (anthropogenic) conditions.  Historic Fill is a type of Anthropogenic Background that does not require remediation.  The definition of Historic Fill is narrowly written and fact specific.  Among other requirements, Historic Fill is pre-1983 fill that:  (1) is not primarily composed of construction and demolition debris, reworked soils, dredge spoils, coal ash, wood ash or other solid waste material; (2) does not contain chemical production waste or manufacturing waste; and (3) does not contain waste material disposed in a municipal solid waste dump, burning dump, landfill, waste lagoon or other waste disposal location.  Site closure is achieved with a Permanent Solution With Conditions. 
  • Site Classification:  The tier classification system has been simplified.  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.  Tier IA, Tier IB and Tier IC subclasses are eliminated.
  • Revised Deadlines:  Tier Classification is still required within one year after the Release Notification Form is submitted to MassDEP.  The Phase II report is now due within three years of Tier Classification (was two years); the Phase III and IV reports are now due within four years of Tier Classification (was two and three years, respectively).  The deadline for Permanent Solution, Temporary Solution or Remedy Operation Status is still five years.
  • Response Action Outcomes (RAOs):  RAOs are now called Solutions.  A Solution is either Permanent or Temporary, with or without Conditions. 
  • Activity and Use Limitations (AULs):  The forms for have been streamlined.  The AUL Opinion by a Licensed Site Professional is no longer necessary.  Deeds for a property subject to an AUL must be submitted to MassDEP within 30 days of recording or registering the deed. 

Additional information on the MCP revisions is available at MassDEP’s website.  For questions, please contact David McCay, a Massachusetts environmental attorney at Mirick O’Connell at (508) 791-8500 or by email at

Note:  Special thanks to my colleagues, Adam Last, PE, LSP at CEA, and Joel Loitherstein, PE, and Jonathan O’Brien, LEP, LSP at Tata & Howard, Inc.,  for their assistance in navigating MassDEP’s revisions to the MCP. 

About David McCay

Dave is a partner in the firm’s litigation and land use groups where he assists clients in the resolution of complex real estate, environmental and business disputes. He also represents property owners, developers and municipalities in local land use permitting matters. Dave is active in the Boroughs+ region serving recently as the Chair of the Southborough Economic Development Committee and of the Marlborough Regional Chamber of Commerce. He is also a member of the Board of Directors of the 495/MetroWest Partnership and the Marlborough Economic Development Corporation. Outside of the office, Dave is an avid cyclist competing in road races and criteriums across New England. He lives in Southborough with his wife and two sons.
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