MassDEP’s TCE Closed Site Review: The Legalities

MASSDEP’S TCE CLOSED SITES REVIEW: THE LEGALITIESIn April 2016, the MassDEP initiated an effort to evaluate closed TCE sites. The Department is “screening nearly 1,000 closed sites with known trichloroethylene contamination to determine at which sites TCE has the potential to pose an Imminent Hazard based on the current understanding of health risks, even if a site was previously closed properly under earlier standards.”  Its strategy is to “systematically review past closures and, where necessary, work with site stakeholders to identify and eliminate any ongoing Imminent Hazards.”

It certainly stands to reason that the MassDEP’s duty to protect public health, welfare, and the environment, encompasses the authority to require responsible parties to take necessary and appropriate response actions at sites where newly understood hazards exist, even though former science might have justified regulatory closure.  But how can that basic principle be reconciled with our general understanding that a permanent solution provides a “liability endpoint” for a responsible party?

The 2006 brownfields amendments, codified in Section 5C of chapter 21E, provide a liability endpoint for persons who properly perform MCP response actions to completion.  Specifically, under Section 5C (a) “an eligible person shall be exempt from liability . . . pursuant to this chapter . . . for any release of oil or hazardous material at the site or portion of a site owned or operated by said eligible person, as delineated in a waste site cleanup activity opinion, for which a permanent solution or remedy operation status exists and is maintained or has been achieved and maintained in accordance with such opinion . . .”  Permanent solutions are achieved under Section 3A of the statute by achieving a level of no significant risk at a site. The import of these sections taken together is that a person’s liability ends if his or her site poses “no significant risk” such that a “permanent solution” has been achieved and maintained.

So if an eligible party reaches a condition of no significant risk, achieves such a permanent solution and is statutorily “exempt from liability,” how can the MassDEP require that same person to later take further response actions (absent an audit finding or other violation of the MCP)?  Is there something in the statute or Massachusetts Contingency Plan that provides the MassDEP with a reopener if science reveals that the level of TCE once considered no significant risk, is later determined to pose a significant risk?

The MassDEP’s definition of “no significant risk” appears to support a conclusion that later adopted standards cannot be the justification for MassDEP enforcement against a site owner who properly achieved a permanent solution. “No significant risk” requires that no “identified substance of concern” shall present a “significant risk of damage to health, safety, public welfare, or the environment during any foreseeable period of time.”  Critically, in making such a determination, the MassDEP “shall consider existing public health or environmental standards where applicable or suitably analogous . . .”

Since the definition of “permanent solution” depends upon a determination of whether or not a significant risk exists based upon “existing public health or environmental standards,” it seems quite clear that the legislature intended to provide an exemption from liability under c. 21E to persons if they properly rely upon “existing” standards, and to protect them against reopening of liability based upon new standards that may be adopted by later regulatory changes.

Does the MCP contain a backdoor mechanism whereby closed sites must be reopened by responsible parties who would otherwise be exempt from liability because they properly achieved a permanent solution?  40.0137 of the MCP requires a new release notification for an already closed site (and therefore, reopening of a site) under the following circumstances: (1) changes in activities, uses or exposures at the disposal site; or (2) the presence of such oil and/or hazardous material would negate or change prior risk determinations or statements were that presence taken into account in the preparation of the permanent solution.  Neither of these two provisions for new notification appears to apply based merely upon promulgation of a new standard.  The first only requires notification at a closed site if the exposure scenario changes. Under the second, the promulgation of a later lower risk based standard would not “negate or change the determinations or statements” in the permanent solution because the known concentrations met the existing risk based standard when the permanent solution (or RAO) was filed.  There is no other MCP provision that expressly requires a responsible party to give notice or take response actions merely as a result of a later published risk threshold.

Unfortunately, the MassDEP takes the position that even though notification and compliance with the MCP may not be required for some sites, “under 310 CMR 40.0370 appropriate steps must be taken at these sites to eliminate or mitigate risks, if necessary, though these actions do not usually require notification to or approval by the Department.”  40.0370 provides that “(1) response actions shall be undertaken for releases or threats of release of oil and/or hazardous material that do not require notification under 310 CMR 40.0300 if the releases or threats of release pose a significant risk to health, safety, public welfare, or the environment, as described in 310 CMR 40.0900.” There is no time limit on this provision, i.e. it appears to be what my law professor called a “springing” provision, waiting to spring up when least expected.

Thus, read literally, the MCP is a Möbius loop. Despite the statute’s liability endpoint, under the MCP “once a disposal site, always a disposal site.” Like the tar baby, under the MCP a site owner will never be able to shake off the label and attendant potential exposure.

Let’s review the bidding, at the outset, if notification is required, the responsible party must perform response actions in accordance with the MCP until he or she achieves and properly documents that a condition of no significant risk has been achieved.  To do this, the responsible party would compare site contamination levels to existing standards to demonstrate the level of risk.  By necessity, the responsible party would rely on the standards then in existence.  If the responsible party demonstrates a condition of no significant risk, he or she may close out the site under a permanent solution and becomes exempt from liability under the statute.  At least theoretically, if at a later time there is a change in the relevant standard which the site does not meet, under Section 40.0370 the responsible party would be required to perform a new risk assessment using the newly existing standards, and if the site posed a significant risk, perform additional response actions to eliminate that risk.  Thus, the MCP appears to leave responsible parties permanently exposed to the requirement to take further response actions under 40.0370, and appears to require a continuous reassessment of risk posed by the site conditions, regardless of prior closure.  How the MassDEP would actually enforce such a requirement remains subject to significant question, especially since, under the statute, the responsible party is “exempt from liability.”

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Delegation of NPDES Program

In this space in the August 2016 Newsletter, we heralded Governor Baker and MassDEP’s efforts to secure from EPA delegation to administer the National Pollution Discharge Elimination System (NPDES). Proposed legislation was sent to die in study at the end of 2016 legislative season by the Joint Committee on Environment, Natural Resources and Agriculture. On March 8, 2017, Governor Baker filed An Act to Enable the Commonwealth’s Administration of the Massachusetts Pollutant Discharge Elimination System that will allow MassDEP to administer the NPDES program as in 46 other states. The legislation will make changes to the Massachusetts Clean Waters Act, which are required for MassDEP to apply to EPA. The Fiscal Year 2018 budget proposal includes a $1.4 million “seed” investment to support the NPDES program. The appropriation will increase to $4.7 million in FY 2019. The initial funding will allow MassDEP to hire 12 new staffers to phase-in NPDES program development and conduct water quality analyses.
In addition to this legislation (if passed), MassDEP must demonstrate to EPA it has an effective plan for managing the NPDES program, the Clean Waters Act will meet federal requirements, and a funding plan is in place. EPA personnel and budget cuts proposed by the POTUS support the delegation plan. It is hoped that MassDEP will engage more closely with municipalities and other permittees, and be more flexible and collaborative in an interactive process that will consider what is technically and economically feasible to attain water quality standards. Delegation may also put MassDEP squarely in the litigation crosshairs of environmental groups which are unhappy with the manner or speed with which MassDEP implements the NPDES program

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Waterways

The Waterways regulations (310 CMR 9.00) protect public trust lands, including waterways and filled former tidelands. Recent amendments effective on March 10, 2017 explain the requirements for Facilities of Public Accommodations (“FPA”) to protect public rights and benefits of the transient public along the waterfront and water-dependent marine uses (fishing, boat repair, commercial passenger and shipping) in Designated Port Areas (“DPA”) from displacement by non-water dependent commercial, residential and recreation uses. Difficulties in securing long-term FPA uses (restaurants, retail stores, hotels, museums) on the ground floor of buildings on filled public and private tidelines, prompted amendments that now allow the substitution of Facilities of Limited Accommodation (“FLA”) (310 CMR 9.56). There are strict qualifying and design criteria, and payment of 20% of net operating income to fund waterfront activities. Future review is required to determine if a FPA can be supported.
EOEEA has promulgated amendments to two sets of waterfront-related regulations implemented by the Massachusetts Coastal Zone Management Program (“Mass CZM”). First is a voluntary procedure for municipalities to secure approval of Municipal Harbor Plans by Mass CZM to guide MassDEP in making decisions under Chapter 91 (301 CMR 23.00). Second are revisions to the procedures for setting and modifying the boundaries of Designated Port Areas by Mass CZM in order to increase flexibility for allowing new and expanded economic development opportunities while still protecting current and future marine and industrial uses. (301 CMR 25.00)

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Greenhouse Gas Initiative After Kain v. DEP

Following the SJC’s ruling in Kain v. DEP that MassDEP had failed to properly implement the Global Warming Solutions Act which required regulations that “establish volumetric limits on multiple sources of greenhouse gas emissions sources (that) decline on an annual basis,” Governor Baker issued Executive Order No. 569 that required inter alia MassDEP to promulgate regulations to satisfy the 2020 state-wide carbon reduction targets. MassDEP has issued draft regulations designed to obtain greenhouse gas reductions in the natural gas, transportation and electricity generation sectors. The final regulations are expected by August 2017. The proposed GHG regulations require reductions:
• in CO2 emissions by Mass DOT and the MBTA and from state fleet vehicles;
• in sulfur hexafluoride emissions from leaking gas-insulated switchgears by National Grid and Eversource;
• in methane emissions from gas mains and service lines; and
• GHG emissions from large power plants (23 existing and all new facilities).
The regulations would increase “clean energy” (renewables and hydropower) from 16% in 2018 to 80% in 2050 provided by retail electricity providers, distributors, competitive suppliers and municipal light plants through the use of clean energy credits.

Proposed Air Regulations

MassDEP has proposed an omnibus package of air pollution control regulations at 310 CMR 7.00 that should be promulgated this Spring. The amendments cover applicability of Plan Approvals for GHG and CO2 at new and existing facilities; establish exemptions; and include updates to match EPA requirements for lead emissions, VOC RACT, NOx RACT, and a NOx Ozone Season budget.
The proposed air regulations provide much needed timelines and procedures for requesting adjudicatory appeals of air decisions. Who has standing to appeal, and when and how to appeal air permits was the subject of several MassDEP adjudicatory hearing and Superior Court decisions. The regulations now define “aggrieved person.” The “date of issuance” is the date the decision is sent to the applicant. Importantly, a copy of the decision must be posted on the MassDEP’s website in order to notify people when the 21-day appeal period begins. Ten person groups have a right to request an adjudicatory hearing, provided they have submitted comments during the public comment period on a pending permit application for air emission sources that emit 10 tons or greater of regulated pollutants, and only on issues relating to damage of the environment.

Title 5 On-Site Wastewater Systems

MassDEP is reviewing on-site wastewater systems regulated under 310 CMR 15.00.  There has not been a change in design flows since 1978 (except for one bedroom elderly housing units).  There have not been major revisions since 1995 when certain Title 5 innovative/alternative systems were approved (RSF, FAST, BIOCLERE, ORENCO, RUCK).  Additional pilot, provisional and remedial systems can be viewed on the MassDEP website.

Septic systems are the largest source of nitrogen pollution in Cape Cod embayments.  Traditional Title 5 systems do not remove nitrogen.  Falmouth and the Buzzards Bay Coalition are conducting a pilot program to reduce nitrogen from homes on West Falmouth Harbor.  Using grant money, 20 homeowners will upgrade their old systems with “layer cake” systems which have multi-layer leach fields to remove nitrogen.  Septic tank effluent passes through a layer for nitrification (18 inches of sand), for denitrification (mixed sand and sawdust, which causes nitrogen gas to dissipate into the air), and then discharge through gravel layer to groundwater.  Testing in Florida showed 85% removal of nitrogen.  Early results in Falmouth show 88% removal.  The systems will be monitored for three years.

The regulatory review should dovetail with the groundwater discharge permit regulations at 310 CMR 5.00 to potentially change the requirement for private wastewater treatment facilities and to allow innovative treatment under Title 5 for flows greater than 10,000 gpd to 15,000 gpd.  The costs for hydrogeo investigations, permitting, purchase, and O&M for wastewater treatment plants is prohibitive.  Conventional, innovative and alternative systems can treat effluent at significantly lower costs than treatment plants.

The Northeast Ocean Plan

The Northeast Ocean Plan (the “Plan”) was developed pursuant to Executive Order 13547 “Stewardship of the Ocean, Our Coasts, and the Great Lakes” (July 19, 2010), which adopted the White House Council on Environmental Quality  “Final Recommendations of the Interagency Ocean Policy Task Force,” and established the National Ocean Policy.  On December 1, 2016, the National Ocean Council (whose Director is Massachusetts’ own Deerin Babb-Brott) certified that the Plan is consistent with the National Ocean Policy.  The Plan is advisory and for use with the companion Northeast Ocean Data Portal, which contains thousands of maps of the components of the marine ecosystem and human activities.  It is hoped the Plan and Data Portal will enhance agency decision-making, encourage the compatibility of ocean uses, and promote healthy ocean ecosystems.

All six New England States (even landlocked Vermont) are signatories.  State and federal agencies will consider the relevant data and information in the Plan to inform decision-making regarding activities such as:

  • Offshore wind energy leasing and development
  • Wave and ocean current energy facilities
  • Offshore oil and gas planning, leasing and development
  • Offshore sand extraction
  • LNG facilities
  • Disposal of dredged material
  • Navigational impacts (aquaculture, cables, pipelines)

The States pledge to use the Plan “which may depend in part on federal agencies’ commitment to the Plan and timely update of its data and information.”  Given the Trump administration’s anti-science mindset, the order to approve the Dakota Access shale oil and Keystone XL natural gas pipelines without full environmental reviews, the promise to cut federal agencies’ budgets, and to repeal, replace or modify environmental regulations (including those related to the ocean), the Plan and Portal may be useful to applicants and state agencies, but may gather dust until the Presidential pendulum swings back toward environmental protection.

The Fate of the Environment in the Age of Trump

Since Trump’s inauguration, friends and colleagues have been asking, “what impact will President Trump have on environmental law?” Along with the rest of the nation (and world), we are waiting to see just how far Trump will push his anti-environment agenda.

Here are a few observations from the dizzying first 90 days:
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…Oh, Boston you’re my home.

Since 1997, Red Sox Nation has celebrated home victories with the post-game anthem “Dirty Water,” the 1966 cynical paean to the Charles River and Boston Harbor.  “Well, I love that dirty water; Oh, Boston you’re my home.”

Beginning in the 1800’s, the Charles River and Boston Harbor were polluted by domestic, municipal and industrial wastes.  Raw sewage, chemical discharges, and leaching riverbank landfills turned the river into a toxic sluiceway flowing into the nastiest harbor in the world.
Read More → “…Oh, Boston you’re my home.”

If the Fat Lady is off the stage, why is the band still playing?

Earlier this year, MassDEP quietly let it be known in an advisory committee meeting that it would be re-visiting old MCP sites with trichloroethylene (TCE) releases to determine if the level of TCE on the property complied with the evolving standards that have lowered the threshold values for TCE.  In particular, MassDEP is concerned with the possibility that vapor intrusion of TCE into indoor air could have an impact on human health, particularly with vulnerable populations.  While the ripple from this announcement caused an initial shock that MassDEP’s actions would undermine investment backed expectations on achieving lasting solutions to hazardous contaminants, MassDEP has always retained the ability to act to protect human health.  Thus far, we have not seen a torrent of activity from MassDEP on this front, but more time will tell how extensive its review will be.  It is a good reminder to be mindful of the long-tail complications that can arise from contaminated properties – even after extensive remedial activities and achieving an RAO and Permanent Solution under the MCP.

While the initial focus of MassDEP’s recent comments was on TCE, we are also witnessing emerging “contaminants of concern,” like Perfluorooctanesulfonic acid (“PFOS”), Perfluorooctanoic acid (“PFOA”) and 1, 4 Dioxane, that may result in re-opening sites that were closed after addressing the initial releases that brought the properties under the MCP.  PFOS and PFOA do not have federal regulatory detection limits, but there are health-related studies showing that they are toxic and carcinogenic.  MassDEP has set a regulatory guideline for 1, 4 Dioxane in drinking water, as well as groundwater and soil cleanup standards in the MCP.  As more information is developed about all three of these contaminants, the regulatory requirements are likely to increase, which may result in returning to sites that were previously closed under the MCP and M.G.L. c. 21E. Read More → “If the Fat Lady is off the stage, why is the band still playing?”