MassDEP Formally Proposes MCP Reforms: It’s About Time? Job Well Done? Definitely Both.

by Foley Hoag LLP - Environmental Law
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On Friday, MassDEP issued the formal public comment draft of its package of regulatory reforms under the Massachusetts Contingency Plan.  Overall, it’s certainly a good package, which will facilitate getting to an endpoint with reduced transaction costs, but no decrease in environmental protection.  It’s not perfect (and you have until May 17, 2013 to provide comments to help make it more perfect), and it took far too long, but congratulations are still due to MassDEP.

MassDEP’s summary organizes the proposed changes into five broad categories.  Highlights in each area include the following:

  • Permit, Tier Classification, and Numerical Ranking System
  1. Elimination of the Numerical Ranking System
  2. Simplification of the Tier classification process, by relying on some simple criteria, rather than the NRS
  3. Elimination of the Tier 1 Permit system
  • Activity and Use Limitations
  1. Elimination of the AUL Opinion requirement
  2. Allowing use of Notices of AULs at federal Superfund sites
  • Vapor Intrusion / Site Closure
  1. Allow closure at sites with active sub-slab depressurization (SSD) systems in place
  2. Revision of the site closure terminology
  •  Nonaqueous Phase Liquid / Source Control
  1. Elimination of the ½ inch upper concentration limit for NAPL, thus allowing PRPs to achieve site closure, even if NAPL is present.
  • Risk Assessment / MCP Standards
  1. MassDEP has revised a number of Method 1 cleanup standards to reflect changes in risk assessments for certain hazardous substances.

My personal favorite among these changes is the elimination of the NRS, if only because I suggested it at the original regulatory reform work group meetings.  It certainly helps focus PRP energy on the real risk-reduction provisions of the MCP; the NRS bore no particular relation to any MCP response actions that happened after scoring took place.

The elimination of the NRS highlights one failure of the reform package – MassDEP’s continued emphasis on critical exposure pathways, or CEPs.  I don’t think that that CEP concept has any place in the risk-based MCP.  It really adds nothing substantively to the risk-reduction focus.  Sites present a risk or they don’t.  The present an imminent hazard or they don’t.  The CEP provisions are nothing more than MassDEP saying that, even apart from risk, sites subject to the CEP provisions are sites that MassDEP really, really, cares about.  Do PRPs really need to be told that, or to be subject to additional requirements as a result?

Back on the plus side, allowing closure for sites with SSD systems in place and for sites containing NAPL that otherwise meet closure criteria will have potentially very significant impacts, allowing more closures, easing financing, and encouraging brownfields redevelopment, all without any impact on cleanup standards.

One final note.  By the time this package is effective, it will have been more than two, and possibly closer to three, years since the regulatory reform work group convened.  MassDEP’s original goal was to have changes in place in less than a year.  I don’t mean any criticism of MassDEP by noting the time.  It’s fact of life.  However, it’s an important fact of life.  Regulations, once in place, are hard to change or undo – something it would behoove regulatory agencies to keep in mind when considering new regulations.  Inertia matters.

 

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Foley Hoag LLP - Environmental Law
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