By: Matt Young, Senior Project Manager Environmental Affairs, Cumberland Gulf Group of Companies  and Dave Leone, LSP, Senior Project Manager, GZA GeoEnvironmental, Inc.

LSPA Regulations Committee members were in attendance at the July 31, 2014 MassDEP Bureau of Waste Site Cleanup pre-comment meeting on the public review draft Activity and Use Limitation (AUL) Guidance. The meeting was an informative and productive start to the draft guidance review process. The meeting was moderated by Liz Callahan, Acting Director Div. of Policy and Program Development, and included a presentation by Peggy Shaw, Esq.,

Environmental Analyst, concerning major changes/additions to the guidance since the 2011 draft. The following are the "top takeaways" from that meeting, presented below in no particular order. 

The current set of guidance review meetings are intended as a pre-comment review. The comment period for the AUL guidance has been extended to September 22, 2014. MassDEP hopes to finalize the AUL guidance, and other revised MCP guidance as well, in the fall 2014. 

The VI Guidance will be out "soon," and will contain additional guidance regarding the use of AULs at VI sites. MassDEP wants feedback on what additional details/specifics concerning AULs for VI and LNAPL sites should be included in the AUL guidance. 

MassDEP does not intend to produce a guidance document for the four non-AUL "Conditions" for Permanent Solutions with Conditions but no AUL. 

The following AUL Guidance-specific topics were discussed:

  • There was discussion about the apparent discrepancy between the AUL guidance reference to a sheen on the groundwater surface as NAPL and prior comments by MassDEP that a sheen is not NAPL. MassDEP reiterated that a sheen is not considered NAPL. The guidance as written only requires an AUL as part of a Permanent Solution when stable NAPL with micro-scale mobility is present at a thickness of greater than or equal to ½" in the subsurface. Further, MassDEP indicated that the ½" threshold applies to DNAPL as well.
  • MassDEP was asked to clarify if an AUL is required to restrict use of groundwater as drinking water at a property where a private water supply well has been decommissioned, and the building has been connected to the public supply system.  MassDEP confirmed that an AUL is not required to restrict use of groundwater as drinking water in that situation.
  • There was discussion regarding the guidance requirement that the LSP signature not predate the owner's signature on an AUL. Meeting participants outlined potential logistical difficulties with this requirement, and questioned the apparent lack of statutory or regulatory source for this requirement. MassDEP will reconsider this requirement.
  • MassDEP discussed the need for survey plans showing multiple barriers, and is considering easing the survey plan requirement in favor of a detailed sketch plan; however, the draft guidance does not clearly convey this. Meeting participants stressed that features not part of a barrier should not be required as part of the survey or sketch plan, as future alterations to those features could necessitate the need for an AUL amendment. MassDEP will revise the guidance to clarify this issue.
  • Participants requested that, to avoid discrepancies that have led to many NONs, the guidance be revised to clarify that the AUL Narrative (formerly the AUL Opinion) should not contain the list of consistent uses, inconsistent uses, obligations and condition required as part of Form 1075.
  • The  requirement  to  notify  MassDEP  of  AUL  property   transactions   was discussed. MassDEP intends to reach out to real estate attorneys and professionals to publicize this requirement.
  • AULs now require a one-time submittal fee. MassDEP intends to add additional language clarifying how these fees should be applied. 

MassDEP has requested that comments on the draft guidance be as specific as possible, and provide examples of requested language, where applicable. In addition, MassDEP has requested input into what, if any, additional information regarding AULs at NAPL and VI sites should be included in the AUL guidance. 

Finally, MassDEP will be holding a pre-comment  meeting on the public review draft LNAPL Guidance on August 12, 2014, 9:30am to 11:30am, MassDEP's Boston Office, One Winter Street 2nd floor conference rooms A & B. 

Thank you,

Matt Young, Senior Project Manager Environmental Affairs, Cumberland Gulf Group of Companies Dave Leone, LSP, Senior Project Manager, GZA GeoEnvironmental, Inc.

LSPA Regulations Committee Co-Chairs