Massachusetts Contigency Plan Faces Significant Proposed Amendments
 
September 6, 2002
 

The Massachusetts Department of Environmental Protection (the DEP) on December 20, 2001, issued a PrePublic Hearing Draft of its proposed revisions to the Massachusetts Contingency Plan (the MCP).  The MCP regulates the reporting and cleanup of oil and hazardous material releases in Massachusetts.  These proposed revisions, if promulgated, will have a significant impact on when certain contaminants must be reported to the DEP as releases and the extent to which the public may participate in the cleanup process.  Here is a summary of some of the more significant proposed revisions.

The reportable concentrations of several oil constituents and several hazardous materials would decrease under the proposed revisions to 310 C.M.R. § 40.1600, resulting in increased reporting obligations.  For example, the reportable concentrations applicable to soil for benzene, ethylbeneze, toluene, xylene, methyl tertiary butyl ether, fuel oil, chlorinated solvents and metals, not including lead, would decrease in most circumstances.  The reportable concentrations applicable to groundwater for ethylbeneze, toluene, xylene, methyl tertiary butyl ether, chlorinated solvents, lead and other metals in groundwater would decrease as well.  Consequently, under the proposed regulations, responsible parties would have to report to the DEP concentrations of certain oil constituents and hazardous materials, which they would not have to report under the current regulations, resulting in additional cleanup responsibilities.

Public awareness of, and involvement in, contaminated sites and the cleanup processes also would increase dramatically under the proposed revisions to 310 C.M.R. §40.1403 and 310 C.M.R. §40.1406.  For example, responsible parties would no longer be able to publish notices about contaminated sites in the legal notice sections of major newspapers circulated in the communities where the sites are located, but would have to place advertisements in the local news sections of local newspapers.  In addition, when obtaining soil samples, groundwater samples, etc., on land owned or operated by others, responsible parties would now have an obligation to advise these people of their rights to obtain the test results and to provide said results on request.  Responsible parties also would have to provide written notice to any owners or occupants of properties affected by any immediate response action being conducted to abate an imminent hazard or to address a critical exposure pathway and the owners of any properties deemed to be located within the boundaries of the responsible party’s disposal site, as determined by the MCP. 

It is likely that many of the proposed revisions to the public involvement provisions of the MCP will result in increased litigation associated with contaminated sites.  In fact, with respect to the proposed revision requiring notification to owners of properties deemed to be located within a disposal site, the DEP is specifically seeking comments on whether the notice should include a suggestion that the property owner consult with an attorney.

The DEP plans to issue its Public Hearing Draft on the proposed revisions in early fall 2002.  It reportedly will be the same as the DEP’s Pre-Public Hearing Draft with some relatively minor modifications intended to respond to comments already received and to simplify the proposed amendments.  The DEP expects to conduct the public hearing on its Public Hearing Draft in late fall 2002 and hopes to promulgate the revised regulations in early 2003.

Anyone interested in reviewing the proposed revisions to the MCP can find them at http://www.state.ma.us/dep/bwsc/regs.htm.   Any questions regarding the proposed revisions, or the anticipated commencement date for the public comment period for the Public Hearing Draft, should be directed to John A. Carrigan, Department of Environmental Protection/Bureau of Waste Site Cleanup, One Winter Street, 7th Floor, Boston, Massachusetts 02108.  He also may be reached at 617-292-5500 and at John.Carrigan@State.ma.us. 

For more information, contact Brendan M. Clifford, toll free at 888-688-8500, or  via e-mail at bcliffor@hklaw.com.