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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.
MassDEP has streamlined requirements for response actions, providing greater certainty and a more flexible process:
Other incentives for private parties to undertake response actions were also included in the amendments to M.G.L. c. 21E:
The Massachusetts Contingency Plan (the MCP, 310 CMR 40.0000) lays out a detailed process on when and how contaminated sites must be assessed and cleaned up:
With a few exceptions, parties conducting an assessment are free to choose any of these risk assessment methods.
If contamination that originated from a neighboring or nearby property migrates onto your (downgradient) property, you may be able to file for a Downgradient Property Status under the provisions of 310 CMR 40.0180. If you successfully obtain this status, you will not be required to cleanup this problem, at least for the time being, though you may be responsible to address any immediate concerns on your property (e.g., explosive vapors seeping into a building) if the party responsible for the contamination refuses to do so.
Sites that are not actively overseen by MassDEP are subject to audit by the agency. In general, MassDEP may conduct a random audit of a Permanent or Temporary Solution Statement within 2 years of filing, or, where evidence exists indicating a potential problem with a site or filing, a targeted audit of a Permanent or Temporary Solution Statement within 5 years of filing. Unless and until a site/submittal is audited by the agency, the opinions/findings of the Licensed Site Professional are considered to be valid and complete.
At any point in the process, if the party responsible for the assessment and cleanup of a contaminated site is either unable or unwilling to take needed actions, MassDEP can draw money from the state "superfund" to hire contractors to start and/or finish the job. MassDEP also has state contractors on standby 24 hours a day to respond to emergency and spill conditions, if necessary. If state money is spent in this manner, the law allows the agency to recover up to 3 times its expenses from responsible parties - which provides a strong incentive for those parties that are financially capable to undertake the work themselves!
Since October 1, 1993, the cleanup of contaminated sites in Massachusetts has been largely "privatized". This approach was adopted to enable (and compel) the private sector to take more responsibility for remedial obligations, and to free up agency staff to address the most pressing public health and environmental threats facing the Commonwealth. Under this system, most sites are investigated and cleaned up with little or no up-front MassDEP involvement.
The idea behind this approach is to use limited government resources in a manner which achieves the greatest environmental benefit. Three important elements constitute the underpinnings of this program:
Detailed procedures and requirements on how to clean up sites in the privatized system are contained in the Massachusetts Contingency Plan (MCP). These rules specify the process that should be followed to evaluate and document site conditions and needed remedial activities. Because MassDEP is not overseeing response actions at most sites, a number of documentation and submittal "check in" points have been stipulated, so that all will be aware of the progress that is being made (or not being made) at every site. There are also extensive requirements on when and how to notify local officials and the public on conditions and actions of particular concern, including opportunities and mechanisms for the public to become more involved in any site by requesting a Public Involvement Plan. It is important to note, however, that while the regulations specify how clean a site needs to be for a particular use, they do not specify how to demonstrate or achieve this level of cleanliness - this is something that must be decided on a case-by-case basis by Licensed Site Professionals, in conformance with the performance standards specified in the MCP, and subject to possible future audit by MassDEP.
Just as most building codes require the use of a Registered Professional Engineer to interpret, apply, and document compliance with structural design standards, the Massachusetts Contingency Plan requires the use of Licensed Site Professionals (LSPs) to evaluate and oversee the remediation of contaminated sites. Similar to Professional Engineers, LSPs are licensed and policed by a state board (independent from MassDEP). To qualify and practice as an LSP, a person must possess a minimum number of years experience and/or specialized training and education in environmental assessment and/or cleanup, and must abide by specified standards of practice. The required use of LSPs attempts to ensure a minimum level of competence, ethical conduct, and professional accountability in a privatized process. A list of LSPs and other relevant information can be obtained from the Board of Registration of Hazardous Waste Cleanup Professionals.
While the agency has delegated considerable authority to the private sector to oversee the cleanup of contaminated sites, it has by no means removed itself from the process, nor absolved itself from the responsibility of ensuring that all contaminated sites in Massachusetts are adequately assessed and cleaned up. To meet its obligations in this regard, MassDEP performs four important oversight functions:
This diagram illustrates the path a site may take through notification, assessment, cleanup and closure. Some actions - like the identification of an Imminent Hazard - may occur at any point in the process. A site may be closed when there is sufficient evidence to document a condition of No Significant Risk has been achieved and other requirements for closure are met.
(click on image to enlarge)