In anticipation of March 1, 2024, when the MCP Amendments go into effect, the LSPA’s Regulations Committee has been working on summarizing key changes to the MCP regulations. 

Provided below is a summary of the new regulations on the topic of Active Exposure Pathway Mitigation Measures (AEPMMS). This information was developed and is provided on behalf of the LSPA only; it does not represent MassDEP guidance or other input. MassDEP training is expected to take place in January 2024.

The LSPA was pleased to have Acting Assistant Bureau of Waste Site Cleanup (BWSC) Commissioner Elizabeth Callahan and Acting Director of BWSC’s Policy and Program Development Division Ken Marra speak at our September 21, 2023 meeting at the Newton Marriott. 

This event, always very popular, was attended by nearly 200 guests this year – we expect because of the highly-anticipated, recent promulgation of the 2024 MCP Amendments.

MassDEP leadership has recently shared that they expect the next set of Amendments to the Massachusetts Contingency Plan (MCP), proposed in 2019, to be promulgated soon. In an effort to refresh our collective memories, the LSPA Regulations Committee has prepared this brief, high-level summary of eight key aspects of the proposed MCP regulations. The summary provided below is based on the draft revisions provided in 2019. The LSPA has not seen a more recent draft. The actual contents of the forthcoming MCP revisions are not known.

Hot Spot and MGP Waste Definitions 
The 2019 proposed amendments include the addition of Manufactured Gas Plant (MGP) Waste as a defined term. Additionally, the amendments propose modifying the definition of a hot spot to include areas of waste disposal including MGP waste. These proposed changes effectively create a new class of oil and hazardous material (OHM), with concomitant requirements for sampling and risk assessment.

MassDEP announced that the application for the FY2024-25 Technical Assistance Grant (TAG) is now available. This grant opportunity provides $200,000 in funding, with up to $20,000 per community or municipal applicant-group selected for an award, to enhance public involvement and promote better understanding of the cleanup of contaminated sites in their communities. 

The application deadline is Friday, October 13, 2023.

The following LSPA practice tip was introduced at the June 2023 Membership Meeting, which was held in-person at the Westborough Doubletree hotel on June 20, 2023.  

Per 310 CMR 40.0006, Historic Fill cannot contain contaminants that are present as a result of on-site activities. If contaminants at a disposal site could potentially have originated from known historical operations or activities at the site, an LSP needs to first determine that contaminants are not from on-site activities before the contaminants can be attributed to Historic Fill.

The following LSPA compliance tip was introduced at the May 2023 Membership Meeting, which was held virtually via Zoom on May 18, 2023.  

When completing an AUL package, be sure to check Appendix D of the AUL Guidance to confirm that you have the right documentation for signature authority. This varies by the type of legal entity (corporation, trust, LLC, Limited Partnership, condominium or Limited Liability Partnership) submitting the AUL, with additional requirements for registered land. 310 CMR 40.1074(2)(c).

The following LSPA practice tip was introduced at the February 2023 Membership Meeting, which was held virtually on February 15,  2023.  

Practice Tip of the Month: 
Administrative issues with Activity and Use Limitations (AULs) commonly result in the issuance of Notices of Noncompliance. One helpful tool for reviewing an AUL and its exhibits and assessing whether all requirements for submitting an AUL have been met, is the AUL Compliance Assistance Checklist available in Appendix I of MassDEP’s 2014 Draft Guidance on Implementing AULs.

The following LSPA practice tip was presented at the January 2023 Membership Meeting, which was held virtually through the Zoom webinar platform, on January 26, 2023.  

Compliance Tip of the Month: 
Pursuant to 310 CMR 40.1403(3)(a), notification to the Chief Municipal Officer and Board of Health of a community in which a Disposal Site is located is required when respirators or other protective clothing (Level A, B, or C Personal Protective Equipment) is used at a Disposal Site. This notification is required at least three days prior to the commencement of such field work or, if the level of protection is upgraded to Level C or above during the course of the work, as soon as practicable.

The following LSPA practice tip was presented at the December 2022 Membership Meeting, which was held virtually through the Zoom webinar platform, on December 14, 2022.  

Compliance Tip of the Month: 
Consistent with 310 CMR 40.1003(7), if all other MCP closure requirements are met, a site with NAPL may be closed with a Permanent Solution With Conditions (PSWC) following complete evaluation of the nature and extent of the NAPL, including demonstration of the following consistent with Policy #WSC-16-450:

The following LSPA practice tip was presented at the November 2022 Membership Meeting, which was held virtually through the Zoom webinar platform, on November 15, 2022.  

Practice Tip of the Month: 
The LSPA has developed a Climate Change MCP Toolkit to assist practitioners as they consider the potential effects of climate change on site assessment and response actions. This is anticipated to be required by the pending amendments to the MCP.  The toolkit includes a flowchart, checklist, two case studies, glossary, and list of resources.

Notes from BWSC Advisory Committee

MassDEP’s Bureau of Waste Site Cleanup Advisory Committee met on October 27, 2022 for several hours. Typically, MassDEP posts the slides and recordings of Advisory Committee meetings here. At this time, these have not yet been posted.

A brief summary of meeting highlights is provided below.

The following LSPA practice tip was presented at the October 2022 Membership Meeting, which was held virtually through the Zoom webinar platform, on October 27, 2022.  

Practice Tip of the Month: 
Did you know MassDEP's position is that discarded carbon canisters, as a generated waste, are a sludge and subject to 310 CMR 30.302: Determination of Whether a Waste is Hazardous? Accordingly, per policy HW94‐007, a spent carbon canister that contains hazardous waste constituents from a listed hazardous waste source must be managed as a hazardous waste, regardless of whether the carbon canisters were used to treat groundwater or vapors from groundwater or soils.

The following LSPA compliance tip was presented at the April 2022 Membership Meeting, which was held virtually through the Zoom webinar platform, on April 14, 2022.  

Compliance Tip of the Month: 
Any time environmental samples are taken at a listed disposal site on behalf of someone other than the owner of the property, the person(s) conducting the response action shall provide the owner of the property with a written notice using BWSC-123 prior to the sampling, or no more than seven days after the sampling if it was conducted as part of an IRA to address a 2-hour notification. 

The following LSPA compliance tip was presented at the December 2021 Membership Meeting, which was held virtually through the Zoom webinar platform, on December 14, 2021.  

Compliance Tip:
When using a Method 2 or Method 3 risk characterization to establish a condition of NSR, you must consider reasonably foreseeable, as well as current, site activities and uses. In particular, future vapor intrusion exposures could result from changes in building use or altered building conditions. Potentially problematic activities and uses can be eliminated from consideration in the risk characterization through an appropriate AUL, per 310 CMR 40.0923(3)(b).

The Department of Environmental Protection (MassDEP) is holding a listening session on disposal capacity issues for contaminated soil coming from Massachusetts disposal sites (“contaminated” soil meaning concentrations > RCS-2).  This session will help MassDEP better understand the scope and impact of contaminated soil disposal issues and identify possible avenues for addressing them. 

The listening session is planned for December 16 from 10:00 am to 12:00 pm, to be held via Zoom, and hosted by MassDEP’s Liz Callahan (Acting Assistant Commissioner, Bureau of Waste Site Cleanup), Greg Cooper (Division Director, Business Compliance & Recycling), and Paul Locke (Acting Deputy Commissioner, Policy & Planning).  

• Regional Personnel Updates  
• MCP Amendments
• Internal MassDEP approvals expected to be completed this summer with final regulations published in the fall
• Training for LSP credit, and Q & As specific to the amendments to follow
• MassDEP also expects to finalize guidance documents related to final amendments including risk characterization
• Subscribe to MassDEP Notifications 
• Compendium of Analytical Methods (CAM) Update
• Revised CAM protocols for 8260 (Volatile Organic Compounds) and 8270 (Semivolatiles)
• Revised protocols posted on July 22, 2021 and take effect November 5, 2021 
• Technical Assistance Grants and MOSPRA Grant Program Premier  
• Assessing Climate Vulnerability at 21E Sites 
• PFAS in Massachusetts
• An excellent comprehensive review of the status of PFAS related efforts over the years and currently underway, including links to databases on MassDEP website
• Office Hours and WSCAC Meetings
• MassDEP plans to continue holding virtual meetings - Thursday morning “office hours” and Thursday morning WSCAC meetings both on the 4^th Thursday of the month.  
• Next Advisory Committee meeting is Thursday, September 23, 2021 at 9:00 am

Members of the LSPA Regulations Committee sat in on this meeting (see the recording here) and present the following takeaways, in no particular order.

• 2019 MCP Revisions. The MCP amendments continue to be edited and revised in response to comments. Once finalized, which is expected to be “later this spring,” they will go into effect (with a grace period), and MassDEP will provide training and updated risk guidance.

• PFAS Testing of Public Water Supplies. MassDEP is providing funding to public water supplies for their first round of required PFAS testing. Testing is underway, and data are updated weekly on the MassDEP PFAS page at https://eeaonline.eea.state.ma.us/portal#!/search/drinking-water.

• Private Well Sampling and IH Level of 90 ppt.  MassDEP is communicating with local Boards of Health and private well owners in ~80 towns that rely primarily on private water sources. MassDEP is aiming to collect data from both private wells near potential (known) PFAS sources and wells randomly located, as an approach to gaining a better understanding of background levels of PFAS in groundwater. If PFAS is detected in a residential well, a homeowner will not be required to notify MassDEP; in the absence of an identified on-site source, MassDEP will assume that homeowners have Downgradient Property Status, and MassDEP will hold in abeyance the issuance a Notice of Responsibility (NOR). MassDEP will work with homeowners to reduce risk; a drinking water Imminent Hazard PFAS6 concentration of 90 ppt has been established by MassDEP.
  

• Multi-Lab Audit Findings.  Ken Marra and Liz Callahan summarized the results of the audit, which was initiated in 2016 and evaluated data packages for VPH/EPH/APH/TO-15. The Multi-Lab Data Audit Report (March 2021) has been posted here. Generally, laboratories did well with the TO-15 and APH analyses. There were potential low bias issues with VPH & EPH analyses in approximately one-half of the data packages, resulting in MassDEP issuing revisions to the VPH methods (February 2018) and EPH methods (December 2019) to clarify the issues. MassDEP does not anticipate doing a systematic review of past submittals relative to the low bias issues identified, but is considering measures for more routine checking of laboratory quality.
  
  If you are interested in participating in subgroup meetings regarding laboratory data quality, please send an email to [email protected].

• MassDEP Focus on Environmental Justice.  Deneen Simpson, MassDEP’s Director of Environmental Justice, summarized MassDEP’s work since June 2020 to evaluate the agency’s internal and external culture, practices, and policies related to environmental justice and equity. This work involves regional offices as well as a focus by the Commissioner. MassDEP is working to diversify advisory and stakeholder groups, and has developed and is implementing Environmental Justice Public Involvement Plan Guidance (currently an internal document only) on approaches to  engage diverse communities. MassDEP’s EJ Team meets quarterly. Rishi Reddi is the Director of Environmental Justice at the Executive Office of Energy and Environmental Affairs (EEOA), and the EJ Team also includes Liz Callahan and Peggy Shaw of BWSC. 

• Refreshing the Waste Site Cleanup Advisory Committee (WSCAC).  MassDEP is evaluating the composition of its stakeholder groups. The WSCAC is not created by statute and therefore MassDEP has flexibility regarding its composition, meeting format, etc. MassDEP would like to expand representation to ensure the full range of program stakeholders and would like to seek additional representation from EJ communities, PIP group members, student representatives, environmental advocacy groups, and/or subject matter experts. The Department is considering establishing term limits, establishing a set meeting schedule (likely quarterly), and varying meeting times and locations. The WSCAC members discussed their thoughts on the various proposals. If you have ideas of how MassDEP might conduct outreach to expand the representation of the advisory committee, please email [email protected].

• Office Hours and WSCAC Meetings.  MassDEP expects to continue holding virtual meetings, but anticipates switching from the Zoom platform to another platform for its Thursday morning “office hours” and WSCAC meetings.  The frequency of weekly office hours will probably be reduced, and WSCAC meetings will likely be held quarterly.

• Brownfields Tax Credits. The Massachusetts Department of Revenue is considering comments on its proposed new brownfields tax credit regulations.  An interagency workgroup has recently conducted listening sessions about the brownfields tax credit program.  They expect to have workgroup findings within a couple of months.

• Searching for COCs on Waste Site/Spills Look Up.  Paul Locke confirmed that it is not possible for the public or MassDEP to search the site lookup database by COCs.

• BWSC Grant Programs update.  Liz Callahan provided an update on various grant programs, including:
  • Natural Resource Damages – grant opportunity related to Former National Fireworks Site in Hanover
  • Technical Assistance
  • Marine Oil Spill Prevention & Response