Tag: MCP

Is There a Liability Exemption for Emerging Contaminants Under G.L. c. 21E; and Oh, Gosh, Do I Need to Notify the DEP If I Find Them?

As you are surely by now aware, the federal and most state governments have recently begun to regulate several new classes of chemicals, including Per- and Poly-Fluoroalkyl Substances (“PFAS”). Regulators have also lowered the concentrations at which certain chemicals historically listed as hazardous materials/substances are considered to pose a risk, such as 1, 4 dioxane and TCE. Last spring, I authored MassDEP’s TCE Closed Site Review: The Legalities which concluded that a landowner of a permanently closed TCE site revisited by the MassDEP should be entitled to the liability exemption under G.L. c. 21E, §5C even though the MCP purports to require further response actions.

What my article did not discuss is whether the liability exemption under Section 5C of G.L. c. 21E would protect such an “eligible” owner from liability for an emerging contaminant that is first discovered and first considered to be a hazardous material like PFAS after the site achieved a permanent solution. Likewise, my article did not address whether such an owner would have to report its knowledge of the presence of such contaminants to the MassDEP. I conclude that because of the narrow language of Section 5C those owners should be prepared to address emerging contaminants under the MCP and c. 21E or risk liability to the MassDEP and they must notify the MassDEP if the concentrations pose or could pose an imminent hazard.

Liability Exemption?
Section 5C of c. 21E states that “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 . . .” For the liability exemption to apply, the “permanent solution or remedy operation status” and the “waste site cleanup activity opinion” must exist and be maintained for “any release of oil or hazardous material at the site.” The statute does not appear to exempt the owner from liability from the entire site but only exempts the owner from liability “for any release of oil or hazardous material” for which a permanent solution or remedy operation status exists and is maintained. Whether the Legislature’s reference to “any release of oil or hazardous material at the site” is broad enough to exempt the owner from liability for releases of hazardous materials that were not actionable at the time the permanent solution or remedy operation status were filed or only those that were actually assessed is unclear. Heavy emphasis on “any” hazardous material would support the application of the exemption. A more narrow reading (which is ordinarily applied by the courts in reviewing public health and safety legislation) would only exempt the owner from liability for releases of oil and those hazardous materials that were actually assessed as part of a waste site cleanup activity opinion in support of the permanent solution or remedy operation status. This differs from the case of a reopened TCE site because a permanent solution or remedy operation status “exists and is maintained” for “the release of oil or hazardous material [i.e. TCE] at the site” in accordance with the waste site cleanup activity opinion. The same legal framework and analysis for the lowered action levels for TCE should apply equally to contaminants such as 1,4 dioxane, that have historically been listed by the MassDEP as hazardous materials but have recently been assigned much lower action levels. Both must be properly addressed as part of the LSP Opinion.

Notification Required?
Chapter 21E, § 2 defines “hazardous material”

material including but not limited to, any material, in whatever form, which, because of its quantity, concentration, chemical, corrosive, flammable, reactive, toxic, infectious or radioactive characteristics, either separately or in combination with any substance or substances, constitutes a present or potential threat to human health, safety, welfare, or to the environment, when improperly stored, treated, transported, disposed of, used, or otherwise managed. The term shall not include oil. The term shall also include all those substances which are included under 42 USC Sec. 9601(14), but it is not limited to those substances.

Under this broad definition, PFAS are hazardous material because of their toxicity.

Chapter 21E, § 7 requires notice to the MassDEP of releases of hazardous materials:

Any owner or operator of a site or vessel, and any person otherwise described in paragraph (a) of section 5, . . ., as soon as he has knowledge of a release or threat of release of oil or hazardous material, shall immediately notify the department thereof.
However, under that same section the MassDEP has published in the MCP “regulations establishing thresholds below which notification shall not be required by this section.”

Without diving into the numerous and complex exceptions to notification, generally under 310 CMR 40.0311, notification is only required for a release or threat of release of a hazardous material for which MassDEP has promulgated either a Reportable Quantity or Reportable Concentration or if the hazardous material exhibits one or more of the characteristics of hazardousness at 310 CMR 40.0347 (ignitability, corrosively, reactivity, toxicity, or infectiousness). Because MassDEP has not promulgated Reportable Quantities or Concentrations for PFAS (and they are not characteristically hazardous), mere detection of PFAS does not require notification. However, two hour notification is required if the PFAS “poses or could pose an imminent hazard.” 310 CMR 40.0311(7). An “imminent hazard” is defined in relevant part as “a release to the environment of oil and/or hazardous material which poses a significant risk to human health when present for even a short period of time, as specified in 310 CMR 40.0950.” 310 CMR 40.0321 (1)(d). 310 CMR 40.0950 requires that a Method 3 risk assessment method shall be performed to determine if an imminent hazard to human health exists. A Method 3 risk assessment includes use of Reference Doses and Reference Concentrations for toxicity and Carcinogenic Slope Factors and Unit Risk Values for cancer risk. According to MassDEP’s Draft Fact Sheet Guidance on Sampling for PFCs, the USEPA has established a Reference Dose of 0.00002 mg/kg/day, documented in the Drinking Water Health Advisory, which would serve as the basis of a MCP Risk Characterization.

In conclusion, eligible persons who own sites where emerging contaminants are discovered are not exempt from liability or notification of the detection of such contaminants. If there are no promulgated RCs or RQs for the contaminant, a Method 3 risk assessment will be required to determine if an imminent hazard exists and notification is required. In that case, 2 hour notice is required. If an imminent hazard exists, the responsible party will need to notify and perform an immediate response action and follow on MCP assessment and possible remediation. Even if no notification is required, the responsible party is required under the MCP to carry out response actions and is not exempt from liability to the MassDEP for failure to take such actions.

Afterward
When I first started to dive into this dense analysis (apologies to the reader), I experienced cognitive dissonance. I simply could not get my mind around the concept that decades old closed sites could present a whole new set of engineering, legal and financial problems. I felt like Marty McFly in Back to the Future. Although CERCLA has statutory “reopeners,” that concept seems foreign to the Massachusetts site clean up arena under the MCP and c. 21E. Not until I read the EPA’s Health Advisory on PFOA, did the potential public health risks start to sink in and my head clear.

I am not sure that the liability framework under CERCLA and c. 21E is the best means to address emerging contaminants. Aside from creating cognitive dissonance, I wonder if it is fair (as if CERCLA and 21E were ever fair) at this time, to require somewhat remote parties (i.e. people other than manufacturers who released these chemicals to the environment) to be legally responsible for exceedingly low concentrations of ubiquitous chemicals that were in the stream of commerce as products, and had nothing to do with waste disposal decisions. Regardless, for now, LSPs, responsible parties and their non-environmental counsel need to clear the mental fog and take their reporting and response obligations for emerging contaminants seriously – – at least until we invent a better mouse trap. For if this is just the beginning of a much bigger long-term trend, I fear that the existing “polluter pays” approach will not be workable.

By Tom Mackie

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Environmental Law Update – Fall 2017

On October 19, 2017, NH DES released a letter to Responsible Parties, Owners and Permittees of certain classes of properties to conduct testing for Per- and Poly-flouroalkyl substances (PFAS).  “Landfills (lined, unlined, active, and/or closed) that are subject to groundwater monitoring requirements” are identified as sites where NH DES will require the initial screening.  As noted in the letter, NH DES “strongly encourages stakeholders to sample and analyze, at a minimum, for the expanded list of nine PFAS analytes outline in the Guidance” provided by NH DES.

On October 18, 2017, the Rhode Island DEM established a 70 parts per trillion Groundwater Quality Standard for PFOA, PFOS or any combination of these compounds in groundwater classified as GAA or GA (groundwater suitable for drinking water use without treatment). Read More → “Environmental Law Update – Fall 2017”

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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Firm Successes – Spring 2017

Tom Mackie and Peter Durning secured final victories over the Conservation Law Foundation and other opponents to our client’s proposed Springfield, MA biomass energy facility by defeating an air plan appeal in the Superior Court and a noisome trade site assignment petition before the Springfield Public Health Commission.

John Shea assisted Jacqueline Nuñez of the WonderGroup in securing a MassDEP Superseding Determination of Applicability that allows this first-of-its-kind green housing development within the City of Boston to move forward.

Through their adjudicatory appeal of a MassDEP air plan approval, John Shea and Peter Durning secured protection for the neighbors to a new industrial facility in the form of additional air emission controls; compliance testing; noise mitigation and monitoring; and limited hours of operation.

Peter Durning and John Shea provided due diligence support and compliance advice under the Massachusetts Contingency Plan for structuring the acquisition and cleanup of a contaminated property to a national developer who is building a mixed-use residential and commercial project in Belmont.

John Shea assisted in achieving a Temporary Solution in compliance with a Consent Judgment deadline for the cleanup of a metal finishing site in Taunton, and conducted public hearings on site assignment modifications for landfill operations as the Hearing Officer to the Taunton and Westminster Boards of Health.

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