If MassDEP Calls…

Foley Hoag LLP
Kathleen M. Brill

February 8, 2016

At a recent meeting of the Massachusetts Department of Environmental Protection’s Waste Site Cleanup Advisory Committee, MassDEP announced that it will soon begin the process of contacting owners of previously closed sites where the available data suggest that trichloroethylene (TCE) levels may be problematic. Back in June of 2014, MassDEP promulgated rules updating its standards to reflect the most recent USEPA toxicity values. MassDEP updated its imminent hazard standards for TCE exposure in indoor air and simultaneously updated its MCP Method 1 soil and groundwater standards and reportable concentrations to reflect the new values.

MassDEP has now screened approximately 1,000 sites that had previously been closed under the MCP, where groundwater concentrations measured at the time of closure would exceed the new standard of 5 μg/L. Of these, MassDEP identified approximately 200 as priority sites — those where it seems likely that an imminent hazard may exist under the new standards. The majority of these sites are in the Northeast region. Although MassDEP does not intend to pursue investigation of the remaining 800 sites, it may later decide to do so if it finds more hazardous conditions than anticipated on the priority list.

MassDEP intends to begin contacting site owners this week and will work its way through the list in the coming months.

What to expect from MassDEP:

  • MassDEP staff will initiate contact with site owners through a phone call, followed by a letter.
  • MassDEP will request new testing tailored to the specifics of the site – initial testing might be of soil gas and/or groundwater, though in more severe cases MassDEP may request immediate indoor air sampling.
  • Site owners will have the option of retaining their own LSP to conduct the sampling or MassDEP may conduct the sampling.
  • At the time MassDEP notifies site owners, it will also notify the relevant municipal boards of health. MassDEP has not yet decided whether it will notify the LSPs of record, many of whom may no longer have a relationship with the current owner.
  • If MassDEP finds concentrations of concern, it may require mitigation measures to address the hazards. Note that MassDEP is approaching this from a public health perspective and is not treating it as an enforcement initiative. For previously closed sites, the closing documents will not be invalidated and a Notice of Non-Compliance will not be issued. Instead, if hazardous conditions are found, a new Release Tracking Number will be assigned.

What to do if you are concerned:

  • If you are concerned that your site (or a site in which you are considering acquiring an interest) may be on MassDEP’s priority list, you can review the documentation available on MassDEP’s Waste Site / Reportable Release database. If you see concentrations that exceed current standards, your site may wind up on MassDEP’s list.
  • You do not have to wait for a phone call; you can contact MassDEP to ask whether your site has been added to DEP’s priority list.
  • If you’re considering acquiring a previously closed site impacted by TCE, you can conduct proactive testing to measure soil and groundwater concentrations to see if current levels exceed current limits

This article is being provided for informational purposes only and not for the purposes of providing legal advice or creating an attorney-client relationship. You should contact an attorney to obtain advice with respect to any particular issue or problem you may have. In addition, the opinions expressed herein are the opinions of Ms. Brill and may not reflect the opinions of Synergy Environmental, Inc., Foley Hoag LLP or either of those firms’ clients.

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