2013 Election Results: Marilyn Wade Joins LSPA Board

The following candidates have been voted onto the LSPA Board for three-year terms ending in 2016:

• Marilyn Wade, LSP, Group Leader, Senior Project Manager and Professional Engineer for URS Corporation, Salem, NH.  Ms. Wade has served as a co-chair of the LSPA Regulations Committee for the past three years. This will be her first term on the LSPA Board.

• Matthew Hackman, LSP, President, Matthew E. Hackman, P.E., CHMM, Inc., Warwick, RI. Mr. Hackman won election to the LSPA Board for a first term in 2010; this will be his second term.

• Paul McKinlay, LSP, PG, Director of the Oil and Hazardous Materials group, Vanasse Hangen Brustlin, Inc. (VHB), Watertown, MA.   Mr. McKinlay won election to the LSPA Board for a first term in 2010; this will be his second term.

• Kevin Beaulieu, LSP, Senior Project Manager and Environmental Practice Lead at Civil and Environmental Consultants, Inc., Raynham, MA.  Mr. Beaulieu was appointed to the LSPA Board in 2011 to fill the remaining two years of the term of a Board member who resigned.  This will be his first elected three-year term.

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In April 2011, MassDEP Commissioner Ken Kimmell announced his plan to implement regulatory reform across the Department.  His guiding principles were driven by multiple years of staff reductions and economic conditions at both the state and local level which hindered the agency in fulfilling its missions.  He sought to reform regulations following these guiding principles:

• Reforms should not weaken or undermine environmental protection.  
• Recommended changes should be aimed at helping MassDEP manage its responsibilities and maintain needed service with the existing staffing levels.
• Reforms should focus on changes within the agency's control, but long-term statutory changes could be considered.  
• Reforms should not transfer responsibilities to municipalities.  

Now, over two years and many meetings, drafts and informational sessions later, MassDEP is poised to finalize a significant reform of the Massachusetts Contingency Plan (MCP).  The draft MCP amendments were made available for public comment beginning February 28, 2013, and the comment period closed on May 17, 2013.  The proposed amendments for the most part fell into these major topics:   

• Permit/Tier Classification and Numerical Ranking System,  
• Activity and Use Limitations,  
• Vapor Intrusion and Closure,  
• Risk Assessment and MCP Standards, and
• Non-Aqueous Phase Liquid and Source Control.  

More than 50 LSPA members contributed at the brainstorming sessions and assisted with final LSPA comments.According to MassDEP, a record number of comments were received on the proposed changes. You can view all 40 of the comments, including those submitted by the LSPA, here at this blog. The LSPA comments were prepared by a dedicated core group of approximately 25 LSPA members participating on eight topic teams.   

Time will tell whether Commissioner Kimmell's guiding principles will be realized with the "new" MCP, but the overall consensus thus far is that many improvements are being made with this redraft and the changes, once finalized, should be worth the effort.  However, the LSPA has expressed one overriding concern with the proposed MCP amendments, which is that collectively the changes, if approved as presented, could take away some professional judgment and discretion that was previously available to LSPs, making parts of the program overly prescriptive and limiting the potential for creativity and innovation.  

In keeping with a longstanding Regulations Committee tradition, here are the "Top Ten" takeaways about the proposed new MCP:

10. The proposed MCP amendments will require corresponding changes to the fee schedule and to BWSC forms.  These changes will take place over the summer and fall, so MassDEP says we should expect the final new MCP to be in place at the end of 2013 or early 2014.  Another set of MCP amendments will be out for review this summer.  You can look forward to some fun beach reading!

9. The AUL process will be streamlined, eliminating the need for a separate LSP opinion and clarifying signatory language. Concerns remain, however, about proposed language that indicates MassDEP shall (rather than may) void RAOs for AUL violations and about how notice to future deed holders is documented.

8. Some MCP standards have been updated, but one noteworthy standard, PCE, was not changed,despite multiple requests to do so from LSPA and others.  The proposed new lead standard actually has two new Method 1, S-1 standards (200 and 300 mg/kg), which could lead to confusion.  Concerns were raised over the proposed new standards for vanadium and 1,4 dioxane, as well as the hardness-based criteria for GW-3 standards.  The LSPA believes these should also be reconsidered.

7. As promised, the proposed new MCP amendments do provide a pathway for closing sites with vapor intrusion pathway issues. However the LSPA feels that the proposed language is too prescriptive, particularly regarding the installation and operation of active, and to some extent passive, vapor mitigation systems. The revisions to Substantial Release Migration (SRM) language will require additional resources to address SRM issues without a commensurate benefit in protection of public health and safety.

6. The proposed amendments essentially eliminate the use of modeling as a technically justified approach to assessment of vapor intrusion issues The LSPA would rather MassDEP keep current guidance, which acknowledges that modeling can be used as part of a "lines of evidence" approach.

5. The proposed amendments would require operating permits for long-term active systems installed at sites in addition to AULs.  The LSPA feels the revised regulations should allow a permit without an AUL where appropriate.

4. The concepts of Anthropogenic Background and Historic Fill are developed and defined.  However, the LSPA feels that the definitions of these terms in the proposed new MCP and the criteria for their applicability need additional clarification.

3. The Tier 1 Permit, Numerical Ranking System and score-based Tier Classification are all gone completely.  The proposed alternative approach, a limited set of Tier 1 inclusionary criteria and a more fluid process to go between Tier 1 and Tier 2, is a positive step but the language in the proposed regulations may need some "tweaking."

2. Big, mostly positive changes have been made in addressing NAPL. The ½ inch UCL language has been eliminated altogether.  However, the LSPA recommends that definitions of non-stable NAPL, transmissivity, and source control be revised, or removed and included in guidance.  LSPs should be aware that the proposed new MCP language relative to NAPL also will require an AUL at all NAPL sites, will include removal of NAPL to the extent feasible as a condition of source control and a requirement for closure, and, perhaps most problematically, will make it impossible to obtain any type of outcome, permanent or temporary solution, for sites with any DNAPL constituent concentration above 1% of its corresponding solubility limit.

1. And finally, we are not done.  MassDEP will be hosting a number of topic-specific focus groups as they work to finalize the language for each of these topics and address the comments they received.  It is not too late to participate and to influence the final course of these reforms.  Check the MassDEP reg. reform blog, as well as the MassDEP and LSPA web pages, for announcements about these meetings and for publication of the next steps, including fee schedule reform and final language.

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As the MassDEP is currently focusing on energy use as one metric for Green Remediation, it is appropriate to note that EPA-OSWER (http://www.epa.gov/superfund/greenremediation/) has, in addition to energy, also identified four other core elements of Green Remediation. These include:

Air and Atmosphere: Many cleanups involve onsite and offsite emissions of greenhouse gases (GHGs) and air pollutants from activities such as treatment processes, the operation of heavy machinery, and the transportation of routine vehicles and cargo trucks. These emissions may be reduced by applying the most appropriate advanced technologies and sound field practices.

Water: Cleanups may also involve the consumption of significant amounts of water for treatment processes, and typically require the management of surface water. Green remediation strategies focus on reducing water consumption, reusing treated water, and using efficient techniques to manage and protect surface water and groundwater.

Land and Ecosystems: Disposal sites often involve degraded onsite and offsite ecosystems and may have conditions that make the site unsafe for human or other use. Green remediation strategies focus on remedial actions that minimize further harm to the area, protect land resources and ecosystems at or near the site, and foster the return of sites to ecological, economic, social, or other uses.

Materials and Waste: Site remediation may consume significant amounts of raw materials, and sometimes generates its own hazardous and non-hazardous wastes, including materials and debris that must be shipped offsite. Green remediation strategies offer opportunities to reduce materials consumption and waste generation, use recycled and local materials and spent products, and purchase environmentally preferred products.

A number of guidance documents and implementation tools already exist for addressing the five core elements of Green Remediation.  In addition, the American Society for Testing and Materials (ASTM) is currently working on producing a Standard Guide for Greener Cleanups (expected to be finalized in 2013) that further expands upon approaches to the five core elements.   The guide contains a feasibility review process that includes examples of Best Management Practices (BMP) for Green Cleanup, and encourages additional BMP ideas. 

But, one might ask, doesn't the MCP Phase III remedy selection review process already require consideration of these Green Remediation components, either explicitly or implicitly? 

One of the strengths of the MCP and the privatized program is the flexibility afforded LSPs to consider innovative technologies and to conduct evaluations and trials of cutting-edge technology without long bureaucratic delays.  This platform encourages innovation and offers responsible parties the potential for achieving major cost savings while achieving risk reduction goals.  

In my opinion, Green Remediation should not be driven by having to implement more expensive remedial options because they may have  brand acceptance as "green"; rather, Green Remediation should be driven by LSPs selecting cost-effective technologies and methods in order to achieve risk reduction with reduced impact on the local and larger environment at an equivalent or lesser cost.  The proposed approach by MassDEP, which currently concentrates on energy consumption with MCP cleanups, is focused on the process of evaluating potential technologies rather than dictating specific technologies.  

I think that is an appropriate approach.  It is my understanding that, under the currently proposed regulations, LSPs will be expected to better document their evaluations and decision making relative to energy when selecting response actions.  The other core elements of Green Remediation would be voluntary considerations.  For anyone who has ever struggled with what to cover in the discussion of "non-pecuniary interests" required in Phase III remedy evaluations, this might be one place for LSPs to give more thought to how the various remedies under consideration address each of the five core elements of Green Remediation. 

However, there is the more fundamental consideration of what technologies and methods are considered in the Phase III screening process and, for that matter, in selecting Immediate Response Actions and developing Release Abatement Measure Plans.  Rather than choosing the one "right" remedial technology, LSPs should consider how combinations of approaches for different areas of the site (e.g., source area vs. dispersed impact), or for different stages of the remedy over periods of time, might achieve a more cost-effective and "greener" remedy.  

There are many resources on developing technologies, including the EPA Clu-In website http://www.clu-in.org/greenremediation/. The LSPA On-Line Journal encourages submission of case studies for innovative technologies to share with the membership.

The existing framework of the MCP gives substantial flexibility to LSPs to provide sound technical and economic remedies for disposal sites.  The process of evaluating alternatives is already laid out and there are choices that can benefit PRPs with cost savings when planning and implementing response actions; making good choices can also reduce the energy and environmental impacts on the Commonwealth both during remedy implementation and following site closure. 

This article provides a very brief summary of the revisions proposed in MassDEP's 2013 Public Hearing Draft - Proposed Amendments to the Massachusetts Contingency Plan, 310 CMR 40.0000 that may change how releases into historic fill soils are addressed.  The proposed MCP amendments continue to acknowledge that historic fill and the chemical constituents associated with it are not "releases"; however, the proposed changes do indirectly address risks associated with historic fill, primarily through the "Permanent Solution with Conditions " category of site closure.

Also provided, following each summary, is the LSPA's position as communicated to MassDEP in our comments on the proposed amendments.   

LSPA Position:  The LSPA had many suggestions for refining and clarifying the definition of Historic Fill. Click here to read them.  The LSPA agreed with the proposed definition of Anthropogenic Background.

Reporting and Reporting Exceptions (40.0315,40.0317 (8), (9), and (12)).  

Since the 120-day reporting requirements and related reporting exceptions have not changed, it is still worthwhile to examine soil samples to identify bits of coal, cinders, asphalt binder, etc. to assess whether these common components of historic fill could be the cause of an apparently reportable condition.    

LSPA Position:  The LSPA had no comment.   

Background and "No Significant Risk" (40.0902 and 40.1020).  

The revisions eliminate equality between background conditions and no significant risk. Instead, when background conditions are achieved, no further response actions are necessary, while a significant risk may still be present, which is sometimes the case at a site with historic fill.

LSPA Position:  The LSPA supported the revision to 40.0902.  

For 310 CMR 40.0902(3), the LSPA is concerned that the use of the word "all" indicates that if all OHM regardless of source or relationship to the identified disposal site is reduced to background, then a   

Permanent Solution has been achieved.  We suggested changing the language to "Disposal sites at which OHM associated with the disposal site have been reduced to background levels ..."

For 40.1020(1), the LSPA felt that requiring response actions to achieve background at any site where a Permanent Solution exists or has been achieved is impractical in certain circumstances.  Sites for which a Permanent Solution  exists and no response actions have been conducted (i.e., former Class B-1 RAO sites) should not be required to achieve background.  We suggested that MassDEP clarify whether the intent is to now require feasibility of achieving background for all sites, not just those for which response actions are undertaken.  The LSPA suggested maintaining the current language which indicates that this requirement need be met only in the event that one or more remedial actions are undertaken to achieve a Permanent Solution. 

Permanent Solution with Conditions (40.0923(3)(c),40.1012(3)(c)2, 40.1041 (2)(b)2, and 40.1056(1)(b) and (f)).

These revisions, as described in MassDEP's "notes to reviewers," carve out several categories of sites than can achieve a Permanent Solution with Conditions without implementing an AUL. One of these categories is anthropogenic background/historic fill. The Risk Assessment may evaluate these exposures qualitatively (rather than quantitatively). The Permanent Solution Statement must indicate that the Permanent Solution is based on assumptions about current or future site activities, uses or conditions on the site.  

Remedial Actions after a Permanent Solution with Conditions (40.1067(5)).  

Requirements for remedial actions conducted at a site with anthropogenic background/historic fill after the submittal of a Permanent Solution with Conditions Statement would be similar for those for a site with an AUL. Limited soil excavation activities (100 cy/20 cy for Oil/Hazmat) could be conducted without notice, but more extensive activities would be conducted as a RAM or Phase IV.  

LSPA Position:  The LSPA supported this revision.

Risk Assessment Criteria (40.0975(6(a) Soil Tables).    

Method 1 Risk Assessment Criteria for S-1 soils have been revised to drop 1) the assumption of consumption of produce and 2) conformance with MWRA sludge criteria. These changes affect common historic fill constituents: "acceptable" levels of cadmium, hex/total chromium, and nickel criteria go up, whereas those for lead, zinc, and PCBs criteria go down. Two criteria are provided for lead (200 or 300 mg/kg), with the lower criterion used to demonstrate that a Permanent Solution (with no conditions) has been achieved.  Method 1 Risk Assessment Criteria for S-2 and S-3 soils have been revised to reflect anthropogenic rather than natural background concentrations.

LSPA Position:  In its comments to MassDEP on the proposed amendments, the LSPA recommended that the RCS-1 standard for lead should be changed to 200 mg/kg to be consistent with the revised background concentration and proposed Method 1 S-1 soil standard of 200 mg/kg.

* See the LSPA "HUF" Newsletter (November 2011) for ideas on characterizing historic fill.

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