Massachusetts Hazardous Waste Cleanup Regulations Amended
March 1, 2000
Recent amendments to Massachusetts' regulations governing the cleanup of
hazardous waste sites, known as the Massachusetts Contingency Plan (MCP),
clarify the requirements for owners of contaminated sites that wish to
demonstrate that their sites have been contaminated by upgradient or upstream
sources. Under the amendments, owners seeking to demonstrate "downgradient
property status" (DPS) must now provide to the Massachusetts Department of
Environmental Protection more extensive sampling results, more extensive
analysis of potential and actual sources of contamination, and more detailed
plans and data. For those persons who can meet this burden, DPS means that
certain cleanup requirements and other response actions are suspended, even
though such persons may be held statutorily liable for such cleanup
requirements.
Other recent MCP amendments generally provide relief for persons liable for
cleanup obligations. For example, under the MCP, levels of contamination that
are determined to be 'background' are generally not subject to the same response
action requirements that would apply in the absence of such determination. The
recent MCP amendments amend the definition of 'background' to include those
levels of oil or hazardous material that would exist in the absence of the
disposal site of concern which are, in part, "attributable to coal ash or
wood ash associated with fill material." Such clarification is welcome, in
light of the ubiquitous presence of fill material in urban areas such as Boston
and the elevated levels of contamination that may result from such fill
material.
The amendments also provide needed clarification to the process by which an
Activity and Use Limitation (AUL) may be released or partially released. AULs
are deed restrictions that may be used at contaminated properties in order to
conclude applicable cleanup obligations under the MCP. For example, an AUL might
restrict a contaminated site to industrial use, thus allowing such site to
contain levels of contamination that are unacceptable for residential use. Prior
to the recent amendments, owners of sites with AULs had been frustrated by their
inability to have such AULs released on all or a portion of a contaminated
property if the AULs were no longer required either because conditions had
changed or because additional remediation had been performed.
The new MCP amendments generally represent welcome efforts to better define
cleanup obligations in what is likely the most detailed hazardous waste cleanup
program in the United States.
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