Massachusetts-Disciplinary Trends Facing Hazardous Waste Site Cleanup Professionals
May 1, 2002
Any person responsible for the cleanup of a release of oil or hazardous material in Massachusetts must retain a Hazardous Waste Site Cleanup Professional, commonly referred to as a Licensed Site Professional (LSP), to oversee cleanup activities and ensure compliance with the Massachusetts Contingency Plan. 310 C.M.R. § 40.0169(1). The Board of Registration of Hazardous Waste Site Cleanup Professionals (the Board) is the governmental agency responsible for licensing and regulating LSPs. Mass. Gen. L. ch. 21A, §§ 19-19J; 309 C.M.R. §§ 1.00-9.00. In this capacity, the Board has the authority to discipline an LSP in response to complaints filed by any person, including the Massachusetts Department of Environmental Protection (the DEP), claiming misconduct on the part of the LSP. (Mass. Gen. L. ch. 21A, § 19C; 309 C.M.R. §§ 7.01-7.14.)
There appears to be a trend over the past three years with respect to the number of complaints filed against LSPs based on public information available on the Board's Web site at www.state.ma.us/lsp. On this site, the Board has published information concerning the number of complaints filed with the Board per year since 1995. In 1999, 20 complaints were filed, which was more than double the number of complaints that had been filed in any previous year. Nine of these complaints were filed by the DEP, which was more than double the number of complaints that had been filed by the DEP in any previous year. In 2000, the total number of complaints filed reduced to 16, but the total number of complaints filed by the DEP actually increased to 11.
These numbers appear to reflect a trend that concerned parties, the DEP in particular, are starting to take more concrete steps than previously to ensure that LSPs are complying with the standards of professional responsibility and competency set forth in the LSP regulations. (309 C.M.R. §§ 4.01-4.05.) It also seems to reflect a trend showing that the DEP may no longer be as hesitant as it may have been in the past, when the LSP program was fairly new, to file complaints against LSPs when it determines that complaints are warranted.
The total filing numbers for 2001 are not yet available on the Board's Web site. However, based on conversations with Board personnel, the total number of complaints filed in 2001 decreased to 10, which is still higher than the total number of complaints filed in any given year from 1995 to 1998, and the total number of complaints filed by the DEP decreased to seven, which similarly, is higher than the total number of complaints filed by the DEP in any given year from 1995 to 1998.
It is unclear from the 2001 statistics whether the apparent trend reflected in the statistics for 1999 and 2000 has subsided, reached a plateau or continued. A Board member at the most recent meeting of the Licensed Site Professional Association on March 7, 2002, stated that he felt that the apparent trend has continued and will continue in the future. He further felt that the reason for the reduction in the number of complaints filed by the DEP in 2001 reflected a conscious decision on the part of the DEP to refrain from filing too many complaints due to the fact that the Board currently has a backlog of complaints that it needs to investigate and resolve. Regardless, LSPs are likely to have to wait for the year-end numbers for 2002 and perhaps 2003 to confirm whether this apparent trend has, in fact, continued and, if so, to what degree.
For more information, contact Brendan M. Clifford.
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