The Bureau of Waste Site Cleanup is responsible for ensuring timely and effective responses to over 1,500 environmental emergencies (e.g. oil spills, chemical fires) per year, as well as timely assessment and cleanup of the more than 44,000 confirmed and suspected hazardous waste sites across Massachusetts by the private parties responsible for them.
In 1990, seven years after the "Massachusetts Superfund Law" (M.G.L. c. 21E) was enacted, less than one quarter of the over 4,200 confirmed and suspected hazardous waste sites were being assessed or cleaned up, and the backlog of sites requiring attention by the Department of Environmental Protection (DEP) was growing rapidly. Concerns about the cleanup program were being raised by a wide variety of interests, including MassDEP itself: regulatory barriers were preventing sites from being assessed and cleaned up; MassDEP was not able to devote its resources to finding and cleaning up the most serious waste sites; and there was a lack of clear standards and guidelines defining when and how sites should be cleaned up.
Based on amendments to Chapter 21E signed into law by Governor Weld in July 1992, MassDEP redesigned the Waste Site Cleanup Program to provide new opportunities and incentives for private parties to respond to contamination, and to allow the State to focus its limited resources on the tasks that require government attention. New rules for reporting, assessing, and cleaning up releases of oil and hazardous material were promulgated in July 1993. These rules (the Massachusetts Contingency Plan, or "MCP") became effective October 1, 1993.
Key features of the program have been designed specifically to encourage private sector cleanups:
- reliance on Licensed Site Professionals (LSPs), experts in assessment and cleanup who are licensed by the Commonwealth and can be hired by the private sector to manage/oversee cleanups, allowing assessments and cleanups to proceed at most sites without delays due to the need to get MassDEP approvals.
- opportunities and incentives for cleaning up small problems quickly, and avoiding more structured and expensive response action requirements. In some cases, "Limited Removal Actions" performed before a notification deadline can keep a site out of the system entirely. Cleanups finished within 120 days of their notification to MassDEP are not required to pay fees. "Release Abatement Measures" can be conducted to reduce risks, limit the spread of contamination at sites that have been reported to MassDEP, and in some cases remove the need for additional response actions.
- a level of MassDEP oversight of response actions that fits the nature of the problem. MassDEP oversees cleanup of spills and situations presenting "imminent hazards" when appropriate. If cleanup is not completed within one year, sites must be classified as Tier I or Tier II before proceeding with comprehensive response actions.
- MassDEP audits of response actions at a statistically significant number of all the sites that are required to pay annual compliance assurance fees to ensure that private sector cleanups are done properly.
The Waste Site Cleanup Program has streamlined requirements for response actions, providing greater certainty and a more flexible process:
- clear notification thresholds for historical contamination that screen out problems that are not likely to cause a significant risk to public health and the environment;
- no upfront MassDEP approvals for most sites; and one for many others, reducing processing time and costs for the private sector;
- performance standards that allow the level of investigation to be set by the nature of the problem (MassDEP sets standards but does not specify a rigid approach for meeting them);
- numerical standards for deciding "how clean is clean enough" for 107 of the most common contaminants, and the ability to factor in site-specific information (e.g., site-specific risk assessments) where appropriate;
- ability to tailor cleanup decisions to fit activities that are likely to occur at the site and likely exposures to oil/hazardous materials that remain at the site, and to use "Activity and Use Limitations" (deed restrictions and deed notices) that lock in the assumptions that were used to select "less clean" cleanup standards, and to provide critical information to future property owners about the status of response actions; and
- documenting "Permanent Solutions”, “Permanent Solutions with Conditions” and “Temporary Solutions", which are clear endpoints to the process, so that lenders, future owners and tenants (etc.) can find out what has been done, what type of solution (permanent/temporary) was reached, and whether the cleanup includes continuing obligations or conditions – with the documentation available on-line upon submittal to DEP.
Other incentives for private parties to undertake response actions were also included in the amendments to M.G.L. c. 21E:
- the liability of secured lenders and fiduciaries was clarified to ensure that, as long as they meet certain requirements, they will not be held responsible for cleanup costs. These clarifications should encourage lending and trust management of contaminated properties.
- the rights of liable parties and others who respond to releases were clarified to make it easier to get other liability parties to contribute to response actions.
- a dispute resolution mechanism has been provided that private parties must use to obtain participation from other possibly liable parties.
- private parties conducting response actions have the right to gain access to contaminated property for assessment and cleanup work.
Overview of the Cleanup Process
The following pages provide a broad overview of the regulatory process by which contaminated sites are assessed and cleaned up in Massachusetts. It is being provided to acquaint homeowners, small businesses, out-of-state consultants and researchers, and others with key concepts, terms, and procedures embodied in the Massachusetts Contingency Plan (MCP), codified as state regulation 310 CMR 40.0000.
There are two important subject areas that should be understood: (1) the regulatory process and standards that dictate how and to what degree sites get cleaned up, and (2) the "privatized" nature of the program, in which the regulatory rules and standards are largely applied by the private sector without direct oversight by MassDEP staff: