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.

All these opportunities to reopen sites are impacting the sale of land, corporate transactions, and indemnifications in agreements to address hazardous waste clean-ups.  We can work with you and your team to address these emerging environmental issues.