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

by Foley Hoag LLP - Environmental Law

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.


Written by:

Foley Hoag LLP - Environmental Law

Foley Hoag LLP - Environmental Law on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.