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.