 Volume 19/Issue 4 December 2013
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| Thank you to our 2013/2014 Platinum Corporate Sponsor |
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The President's Message
The LSPA at 20:
Looking Back - and Looking Forward
By: Matthew Hackman, LSP, President, LSPA
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Like many parents sending their children off to college this fall, we look back over the past two decades of the LSPA to marvel at how far we have come, and look forward to where we will go from here.
The LSPA had its beginnings in the sea change in the way Massachusetts addressed hazardous waste disposal sites. The substantial amendments to MGL c. 21E in 1992, and the "new" Massachusetts Contingency Plan (MCP) promulgated in 1993, shifted the management of response actions at almost all contaminated sites from MassDEP to "licensed site professionals" in the private sector. In 1992, as the discussions around these changes progressed, a small group of environmental professionals foresaw the need for the practitioners in this brand new profession to have a professional organization to provide training and advance and promote their practice. In early 1993, even before the first LSPs had been licensed by the newly-created LSP Board of Registration, the LSPA was formally incorporated.
Over the past two decades, the LSPA has grown into a vital and established 800+ member organization. Just a few of the many benefits the LSPA provides to its members are its monthly member meetings, now averaging well over 100 attendees; providing timely and topical information through the presentation of over 20 continuing education courses per year, including on-line courses; an active and effective group of committees providing critical information to LSPA members on the ever-evolving state of the practice, statutes and regulations; and advocating for the profession before MassDEP and the LSP Board.
Throughout its history, some things have remained constant. The LSPA partners with MassDEP and the LSP Board as the three foundational elements upon which the effective MCP privatized waste site cleanup program is based. The LSPA remains the primary means of communication and feedback between LSPs as a group and MassDEP, and the LSPA works with MassDEP to provide outreach and education to help LSPs and the regulated community stay knowledgeable about the latest regulations, policies and guidance from MassDEP. LSPA members have taken an active role on the LSP Board as well, both as Board members and as advocates before the Board.
But other aspects of our organization have evolved or developed over time. In 1993, we established the LSPA Newsletter, now transitioned to electronic format. Other changes over the years included hiring an executive director, developing an annual strategic planning process, developing and implementing a peer review program, taking a major role in the initiative that led to the homeowner's heating oil bill, and proactively engaging with the LSP Board regarding the Board's disciplinary process. In 2006, the LSPA Scholarship Fund was established as an independent 501(c)(3) corporation.
All of what I view to be the LSPA's major accomplishments came as the result of a champion or champions who had the vision for a change, and worked tirelessly with other LSPA members to accomplish that change. In addition to the accomplishments mentioned above, the LSPA has done much more: changing LSPA's bylaws to expand the possibilities for involvement of Associate Members; creating and re-creating the LSPA website and newsletter; and creating the LSPA scholarship program. All of these changes were championed by an LSPA member, just like you, who saw how LSPA could be better and/or make an important difference to the community and the practice.
But this 20th anniversary is not only a time to look back; it is also a time to look forward. As the next generation of LSPs becomes licensed and joins the profession, we have to consider where the LSPA will be 20 years from now. Here are some questions to whet your appetite; we will ponder these as we continue our ongoing strategic planning:
- Can the LSP program become a national model for environmental professionals, similar to the model of professional engineers?
- Is it time for the LSP Board to take its leave of EOEEA and move into the Division of Licensure with the other professional licensing Boards in the Commonwealth?
- Should the LSPA retain distinctions in membership between LSPs and non-LSP Associate members if all members are working for the same purpose?
- What other roles in the environmental realm might LSPs fill?
These are just a few of the questions in my mind as I look forward to the next 20 years, and I hope to discuss each of these ideas further in future LSPA News columns. I am sure there are as many other scenarios and possibilities as there are members who think about them.
I challenge all LSPA members to spend this 20th anniversary year, and the years to follow, actively thinking about what new directions LSPA should take, what initiatives we can strive to achieve, and where LSPA could or should be in five, ten, or twenty years - and to start working now on getting there. Join a committee, offer yourself as committee chair or as a nominee to the Board of Directors, participate in your LSPA. I believe LSPs, and the LSPA, have a bright future, limited only by our imagination.
Happy 20th birthday, LSPA!
Matthew Hackman, P.E., CHMM, LSP, LEP
LSPA President
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LSP Board to Revise Its Regulations - LSPA Needs Your Suggestions
By: Wendy Rundle, LSPA Executive Director
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As you may know, the LSP Board of Registration ("LSP Board") is soliciting comments and suggestions for amendments to its regulations at 309 CMR 1.00-9.00. Click here to download the current regulations.
The LSPA Loss Prevention, Technical Practices, and Regulations Committees are spearheading a review of these regulations and soliciting comments from the entire LSPA membership.
We urge you to review the current regulations and consider any revisions, additions, improvements you would make. These regulations are integral to our successful practice as LSPs and include rules for:
- Qualifications for Eligibility to Take Licensing Examination
- Application for Licensure
- License Renewal
- Continuing Education Requirements
- Types of Discipline
- The Preliminary Investigation Process
- Initiation of Formal Adjudicatory Proceedings
- Discipline or Other Disposition By Agreement
- Procedures for Assessing and Paying Penalties
Once comments are compiled, the LSPA Board will review and submit a package of the association's comments to the LSP Board.
The LSP Board is also accepting written comments through December 31, 2013; see their website at
http://www.mass.gov/lsp/.
The LSPA encourages you to participate in reviewing these regulations and we look forward to sharing our input with the LSP Board of Registration over the next few months.
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Top Takeaways from the FY2012 NOAF Review
By: Jane Parkin Kullmann, Haley & Aldrich, and Jeanine Grachuk, Esq., Beveridge & Diamond, P.C.; Loss Prevention Committee
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The Loss Prevention Committee's (LPC) annual review of Notices of Audit Findings (NOAFs) issued by MassDEP has once again indicated interesting trends and "food for thought." The LPC reviewed NOAFs issued in 2011-2012 (FY2012) relating to specific topics pertinent to the LSP professional practice: Class C RAOs, Downgradient Property Status (DPS), nature and extent of contamination, Activity and Use Limitations (AULs), Remedy Operation Status (ROS), and remedial actions. In this review, the Committee identified the following themes and practice tips.
Takeaway #1: "Danger, Will Robinson!" Employ DPS cautiously and with particular attention to the DPS lines of evidence. MassDEP terminated or required retraction of all five DPS submittals reviewed during fiscal year 2012. In each case, MassDEP determined that potential on-site sources had not been adequately addressed, with the result that the information presented did not provide sufficient evidence to show that the release was solely from an off-property source.
Takeaway #2: Confusion persists with respect to what types of boundaries must be shown on the sketch or survey plan submitted as Exhibit B to an AUL. Identified non-compliances included failure to show on the survey or sketch plan the limits of all barriers to exposure identified in the AUL text as AUL Conditions. For more information, including whether the use of a licensed surveyor is required for a particular barrier, please see MassDEP's MCP Q&A on "How Do I Delineate Barriers within the Area Subject to the AUL?"
Takeaway #3: Nature and Extent. We continue to see Notices of Noncompliance (NON) for failure to adequately determine the nature (the 'what') and extent (the 'where,' both horizontally and vertically) of contamination. In two cases, both of which were RAOs, the site boundary is not shown on a plan and, in one of these, the source of the release was not identified in the narrative. In several instances, the vertical extent was not adequately assessed. Moreover, in cases of chlorinated solvent contamination, deep wells were: 1) not installed at all, 2) installed only in limited locations, or 3) not installed in downgradient locations.
Takeaway #4: Don't be surprised if your Phase II Comprehensive Site Assessment (CSA) is audited.We continue to see many audits occurring at the Phase II stage, as MassDEP is not waiting until the filing of an RAO before auditing sites. This is consistent with statements made by MassDEP last year that they intend to focus more on Phase II audits within the general audit program because of the benefits of early identification of possible nature-and-extent and other assessment issues.
Takeaway #5: When is a Release Abatement Measure (RAM) not enough? In one case, which involved an A-3 RAO, a condition of the AUL prohibited soil disturbance activities without first submitting an LSP Evaluation Opinion. However, USTs located within the AUL area were subsequently removed under a RAM. MassDEP determined that the RAM Plan that was submitted to address the UST removal was not sufficient because an "LSP Evaluation Opinion" had not also been submitted prior to excavation activities, as required by the AUL.
Takeaway #6: Follow the Operation, Maintenance, and Monitoring (OMM) Plan! We noted several examples where MassDEP issued NONs for failure to follow an OMM plan. For example, one OMM plan called for quarterly groundwater sampling, but no groundwater sampling was conducted for ten months after the application of remedial additives. In that case, MassDEP also identified a concern that sampling at the site was occurring infrequently and irregularly, making evaluation of the data and the effectiveness of the remedy difficult. In other cases, MassDEP indicated that the OMM Plan should have been updated when a particular well was no longer in service.
Takeaway #7: Is your remedial strategy working? In several instances, MassDEP determined that the chosen remedial strategy was no longer appropriate and required re-evaluation. In one case, MassDEP stated that the remedial action was "not making progress towards a Permanent Solution," and noted that the groundwater pump-and-treat system had been in operation for over 12 years but concentrations of nickel and hexavalent chromium continued to exceed UCLs. In another case, the remedial strategy for addressing a petroleum release was excavation followed by chemical oxidation and monitored natural attenuation. Based on monitoring data, MassDEP determined that no significant reduction in the concentrations of site contaminants in groundwater was occurring, possibly because the data showed that the subsurface environment was anaerobic.
Takeaway #8: No Standing or Parking in Remedy Operation Status (ROS). In several audits of sites in ROS, MassDEP determined that the remedial action was not making adequate progress and required termination of ROS. In one instance, after eight years of monitored natural attenuation, the ROS Status report indicated that concentrations of contaminants of concern (COCs) were increasing without any explanation for the trend. MassDEP required either the submittal of a revised status report explaining how the conditions for ROS continued to be met, or termination of ROS.
Takeaway #9: "Adminis-trivia" remains a critical challenge in filing AULs. MassDEP continues to issue NONs for cases where the proper signatory authority is not attached to the AUL, where MassDEP is not provided copies of the AUL and/or plans, or where the AUL is not referenced in a future deed.
Takeaway #10: Monitoring well maintenance is not a trivial matter. On several occasions, NOAFs identified the failure to properly maintain wells. In one instance, MassDEP stated that the bolts for securing the well caps were missing and road boxes were in disrepair, with cracked or missing concrete.
Takeaway #11: Requests for Information (RFI). MassDEP occasionally uses its authority under M.G.L. c. 21E to issue RFIs to support its audit of a particular site, especially in the context of determining compliance with AULs. For example, MassDEP issued an RFI when it could not determine whether changes had been made to the AUL area (e.g., planting of ornamental trees) and, if so, whether these changes had been performed in compliance with the AUL. In the instances we noticed, MassDEP issued the RFI after attempting to obtain the needed information by phone. MassDEP indicates that it has authority to issue RFIs under M.G.L. c. 21E, s 2, 4 & 8, and under 310 CMR 40.0165. While the LSP may be copied on the RFI, these are typically issued to the PRP or current landowner.
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Update on Proposed MCP Revisions
By: Charles A. Lindberg, LSP, GZA Geoenvironmental, and LSPA Regulations Committee
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As you may recall, the June 2013 LSPA newsletter was dedicated to the theme of Technical Issues Related to the 2013 Proposed MCP Amendments. Approximately 40 sets of comments were submitted to the MassDEP Bureau of Waste Site Cleanup (BWSC) on the draft revisions in May 2013 (including a comprehensive set of comments from the LSPA). BWSC staff have been reviewing these comments and evaluating changes to the proposed MCP revisions. This process has included several forums on specific, key aspects of the proposed amendments. LSPA Regulations Committee members attended these forums and have developed summaries of the primary technical issues discussed at each one.
June 27, 2013 Waste Site Cleanup Advisory Committee Meeting
Active Exposure Pathway Elimination Measures (AEPEMs)
The AEPEM concept is a pivotal aspect of the Proposed MCP revisions and, not surprisingly, generated a substantial amount of commentary. Animated discussions during the June 27th forum, moderated by MassDEP's Liz Callahan, demonstrated the continuing issues with several aspects of the AEPEM paradigm and the challenges associated with reaching consensus. Several key themes emerged, however, indicating BWSC's predilection for the revised amendments, including:
a.) Substitution of the term "mitigation" for "elimination" seemed to have broad support from both the Department and audience members. The proposed AEPEM would then become an AEPMM
b.) There appeared to be a strong consensus among commenters that requiring both an AUL and a permit for AEPMMs was overly burdensome. Despite some vocal advocacy for the permit concept, the majority of the audience and BWSC representatives supported an AUL over the permit process. The familiarity with an existing MCP tool versus an entirely new process was frequently cited by supporters of the AUL route. Look for the revised amendments to eliminate the permit process in favor of an AUL.
c.) Under the assumption that the AUL route would be selected for AEPMMs, standardized language would be developed for these scenarios.
d.) BWSC agreed with several commenters that establishing the generation of waste as the distinguishing feature of active remedial systems versus AEPMMs was not appropriate and would be modified. Thus, the voluntary use of granular activated carbon for treating AEPMM emissions would not jeopardize this closure route.
e.) There was a great deal of discussion regarding the required annual certification for AEPMMs, with no clear consensus. BWSC staff suggested that this requirement would remain.
f.) BWSC appears to be holding firm on the requirements for remote telemetry and immediate notification for system shutdown. The Department believes that it needs to know about shutdowns immediately, and that it can handle the anticipated notification traffic. It was also suggested that the requirement for immediate notification to building owners and system operators would be retained, but that this would not be required for other parties (such as building occupants).
g.) The restrictions on the use of AEPMMs for possible imminent hazard conditions were discussed without a clear resolution. Trichloroethene (TCE) sites present the greatest challenge in this area. BWSC promised additional evaluation of this issue.
July 30, 2013 Waste Site Cleanup Advisory Committee Meeting
NAPL and OHM Source Control
MassDEP received considerable commentary on the proposed revisions to the NAPL and source control provisions of the MCP. The technical discussion of the comments and possible changes to the draft amendments was led by Ken Marra of BWSC. Some specific highlights from the discussions follow:
a) BWSC is planning to include both �-inch and 1/8-inch notification triggers for NAPL, with the former still a 72-hour condition and the latter a 120-day notification, consistent with the current regulations. There will also be a new Substantial Release Migration (SRM) condition for volatile LNAPL within 30 feet of a school, daycare or residence requiring a 72-hour notification.
b) The mandatory requirement for an AUL for all sites with NAPL is being reconsidered.
c) Active remediation of NAPL will not necessarily be required in all cases. A feasibility evaluation will be required to evaluate the need for active remediation.
d) BWSC will reinstate the exemption associated with the leading edge of a dissolved plume under the source of OHM definition.
e) The proposed 1% solubility rule for DNAPL constituents as a "bright line" requirement to demonstrate source control will likely be deleted from the revisions. However, BWSC emphasized that this should still be a trigger for further assessment of "stable NAPL."
September 17, 2013 LSPA Monthly Meeting
Update on MCP Revisions
Liz Callahan of BWSC provided a global update on the status of the MCP revisions at the LSPA's September monthly membership meeting. The new regulations are expected to be promulgated in November with a projected effective date of January 2014 (as we go to press these dates have been delayed). While not set in stone yet, Liz confirmed the key highlights of the likely MCP revisions outlined above and outlined several other salient issues:
a.) Tier II sites where response actions are ongoing for conditions that would fall under the new Tier I criteria will be "grandfathered" (i.e., reclassification will not be required).
b.) The proposed SRM trigger for groundwater concentrations greater than 10 times the GW-2 standard within 100 feet of a residence, school or daycare has been deleted. Other proposed SRM criteria have been revised to be more narrowly focused.
c.) The AEPMM concept can apply to point-of-delivery water supply treatment systems, in addition to sub-slab systems.
d.) The LSP AUL Opinion will be eliminated, with the relevant information incorporated into an exhibit to the AUL (Exhibit C) rather than within the 1075 form itself.
e.) The proposed revisions to sections 40.0019 and 40.0020 regarding the invalidation of RAOs for AUL violations has been deleted.
f.) A definition has been added for a gardening Best Management Practice (BPM), one of the non-AUL conditions associated with the "Permanent Solution with Conditions" closure category.
g.) The proposed revisions to the Method 1 standards and Reportable Concentrations (RCs) from the public comment draft will be incorporated as planned with several exceptions. The new S-1 soil RC and Method 1 standard for lead will be 200 mg/Kg. The S-1 standard and RC for vanadium has been adjusted from 30 mg/Kg to 400 mg/Kg.
h.) BWSC is still working on transition issues for current C-2 RAO sites.
Click here to see the slides from MassDEP's presentation, slides 19 - 32 specifically address proposed MCP revisions.
Stay tuned to this newsletter for continuing developments on the MCP revisions.
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Technical Practices Corner: Critical Exposure Cares about Daycare
By: J. Andrew Irwin, IRWIN Engineers, Inc., and Technical Practices Committee Member
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When conducting Immediate Response Actions (IRAs) one must consider whether Critical Exposure Pathways are present, since IRAs "shall be presumed to require the elimination and/or mitigation of Critical Exposure Pathways" (40.0414(3)). As defined in the MCP (40.00006):
"Critical Exposure Pathways mean those routes by which oil and/or hazardous material(s) released at a disposal site are transported, or are likely to be transported, to human receptors via:
(a) vapor-phase emissions of measurable concentrations of oil and/or hazardous materials into the living or working space of a pre-school, daycare, school or occupied residential dwelling; or
(b) ingestion, dermal absorption or inhalation of measurable concentrations of oil and/or hazardous materials from drinking water supply wells located at and servicing a pre-school, daycare, school or occupied residential dwelling."
Deciding whether one of the specified facilities is impacted is not always as easy as you might think, particularly in the case of daycare operations. Thanks to Pat Donahue, Section Chief for Audits in MassDEP's Northeast Regional Office, for sharing the following link to the list of active daycare providers on the official website of the Executive Office of Education (EDU).
Registered daycare providers do not always have signage on the building to indicate their presence. This is not a significant issue if the daycare operation is located within a residential building, since the residence itself would serve as the CEP trigger. On the other hand, a daycare operation without identifying exterior signage in a non-residential building could easily escape an unwary LSP's notice. I have found that many of the daycare operations listed on the EDU website do not show up even when I do a web search for "daycare in XTown."
The EDU listing is provided in Excel spreadsheets organized by region. While it is easy to sort or filter by the City/Town, the address field is not easily sorted because the street number is entered in the cell with the street name. Searching for street names with the "Find" function seems to be the fastest way to search the database. Mapping by Google, or similar services, one can locate the operation with respect to the disposal Site in question.
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And Then There Were None (RAOs)
By: Lisa Alexander, BWSC Audits & Enforcement Coordinator, MassDEP
(The LSP Association does not edit any articles submitted on behalf of any government agency or the LSP Board, other than for formatting purposes.)
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In the late 1980s and early 1990s, BWSC received reports about oil and hazardous material found "in the environment" from EPA, consultants, oil company personnel, homeowners, citizens and virtually anyone that could pick up a phone or write a letter indicating that they thought there was something for us to be concerned about. The reports varied based on odors, appearances of disturbed soil or soil piles, abandoned drums, stained soils, dead fish or visible sheens on surface waters. At the time, some had ERB (Emergency Response Branch) numbers, some were simply "Locations to Be Investigated" (LTBIs) and some were "confirmed" sites or spills, based on first-hand involvement or investigation by a BWSC staff person. For property owners who wanted to proactively move forward with their site assessments and cleanups, there was an option to get a Waiver of Approvals once BWSC could confirm certain criteria were met with regard to assessing and eliminating certain risks or site conditions. But sites were accumulating and the list (and backlog of possible sites) was growing.
In October 1993, the "new" MCP was published and the Licensed Site Professional program was instituted. And as BWSC prepares for another MCP overhaul, it is also looking back at the accomplishments over the last twenty years and analyzing what they mean. This month's article is going to provide some of the figures and data we're looking at with minimal commentary. Figure 1 shows the accumulated new notifications and Response Action Outcomes (RAOs) since 1993.
Figure 1. Total Releases in the BWSC database and Total RAOs, FY 1993- FY 2013.
It should be noted that the total number of releases in Figure 1did not start a "0" in 1993, but rather, incorporated confirmed spills, sites and Waivered sites. Additional LTBIs and ERB sites were evaluated later and either added to the database as active sites or determined to need No Further Action based on information in the files or gained through Requests for Information.
There was originally a statutory requirement to audit 20% of all fee paying sites within five years of RAO and, periodically, all AUL sites. Additionally, a portion of non-RAO sites were randomized and assigned for Level 3 audits (without initial Level 1 review). In order to address the growing universe of sites, a screening process used in the regions was standardized as the Level 1 Audit checklist. (You remember the checklist from its use in past Audit Case Study trainings.) The Level 1 form has certain risk based conditions designated as flags to determine sites that might be candidates for either a Level 2 Site Inspection Audit or a Level 3 Comprehensive Audit with site inspection. There are also non-audit Inspections of Preliminary Response Actions such as IRAs and RAMs, as well as treatment system inspections. Figure 2 shows the fiscal year counts of new Notifications, New RAOs, Level 1, 2, and 3 audits, non-audit Inspections and the resulting Low Level Enforcement and High Level Enforcement.
 Figure 2. Notifications, New RAOs, audits by type, Inspections and resulting enforcement. The spider web above shows that the number of Level 1 Audits annually exceed new notifications and new RAOs. In addition to RAO'd sites, BWSC periodically audits (or re-audits) AUL sites, DPS and non-RAO sites. Because it is easier to provide compliance assistance earlier in the process, current practice also includes Level 1 audits of preliminary response actions and Phase II submittals. In the twenty years since 1993, nearly 36,000 new notifications had been made by the close of FY 2013. There have also been 31,944 RAOs of all types submitted. |
RAOs as of FY2013
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A-1
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A-2
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A-3
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A-4
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B-1
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B-2
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C
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Total
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Totals
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9948
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15923
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1788
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26
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2759
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435
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1065
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31944
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Looking forward into the soon-to-be revised MCP, "RAOs" will be no more. However, from Figure 3, a pie chart of RAO types, one can see that the vast majority of current RAOs (89.6%) are suitable for unrestricted use (Class A-1, A-2 and B-1). These will soon become "Permanent Solutions." Just over 7% (Class A-3, A-4 and B-2 RAOs) have been closed with conditions, able to be used with specified activity and use limitations. Finally, there are sites in the process of finding a solution or working toward a solution that aren't there, yet. These Class C sites (3% of sites) may be further divided since the Class C-1 and C-2 were more fully defined (583 and 228 of each type, respectively). Depending on their specific circumstances, Class C sites will either find a way to become Permanent Solutions with conditions, or Temporary Solutions. The different RAO types are shown in the pie chart in Figure 3. The twenty years of BWSC and LSP experience with the 1993 MCP will be reflected in many of the proposed regulation changes. Through initiatives in the last few years, BWSC learned that audits conducted earlier in the process (at preliminary response actions or Phase IIs) were found to lead to short term compliance assistance at a point where both LSPs and PRPs were more amenable to making changes in their plans and could also result in a better outcomes at closure. AULs will become the "conditions" to be maintained at sites that are otherwise Permanent Solutions at closure. Such "conditions" have long been accepted by the public, developers and investors and by the regulated community and are well understood by most. Overall, the regulatory changes due in Fiscal Year 2014 are a reflection of the way the program has evolved over the past two decades. RAOs will go away, but the program will continue.  Figure 3. RAOs by Type at the end of FY 2013 For additional information on historic site notifications and closures, see: http://www.mass.gov/eea/agencies/massdep/cleanup/reports/21e-program-notification-statistics.html http://www.mass.gov/eea/agencies/massdep/cleanup/reports/response-action-outcomes-table.html
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New Developments: Siting Renewable Energy on Contaminated Land in Massachusetts
By: Thomas M. Potter, Clean Energy Development Coordinator, MassDEP BWSC
(The LSP Association does not edit any articles submitted on behalf of any government agency or the LSP Board, other than for formatting purposes.) |
Since its announcement in November 2011, the Bureau of Waste Site Cleanup (BWSC) has been focused on achieving 50 megawatts of solar photovoltaic (PV) development activity on underutilized contaminated land, including Brownfield and Superfund sites through its Clean Energy Results Program (CERP). There are many former commercial and industrial properties across Massachusetts that are abandoned and/or underutilized out of concern about contamination and associated liability. In addition, some contaminated properties may not be well-suited for redevelopment as residential properties or for commercial use.
However, contaminated land may present tremendous opportunities for redevelopment as renewable energy resource facilities due to the many potential advantages they have. These advantages likely include access to nearby existing infrastructure, including roadways and utility connections that may substantially reduce construction and connections costs respectively; the potential to realize reduced land acquisition/leasing costs, as well as the protection of open space or "Greenfields" by keeping development from encroaching on rural agricultural.
In an effort to aid renewable energy developers with available opportunities on contaminated land, MassDEP finalized and published (online) the first edition of its "Contaminated Land Profile List" that provides information on more than 700 properties with favorable renewable energy redevelopment characteristics. The list (available here: CERP) represents a subset of the thousands of sites in MassDEP's waste site cleanup program. The listed sites were identified through our Brownfield efforts as having certain distinguishing characteristics. These characteristics include but are not limited to interest by communities and the state for redevelopment, an initial expenditure of funds for either assessment and/or remediation by various federal/state programs and are either abandoned and/or underutilized blights on communities.
In addition, MassDEP also finalized and published a fact sheet (available here: CERP) titled "
Addressing Renewable Energy Development at Contaminated Properties in Massachusetts - Managing Chapter 21E Liability." Liability is a central concern for developers of contaminated property and can oftentimes dramatically increase development costs of this type of property. In addressing liability, MassDEP focused the liability protections and options available to renewable energy developers dealing with contaminated land in Massachusetts.
"SREC II" and NEW DEVELOPMENTS FOR SOLAR PV ON CONTAMINATED LAND
In May 2013, the Patrick Administration announced that it had reached its goal of 400 megawatts (MW) of qualified solar capacity within its solar carve-out program and announced a new goal of 1,600 MW by 2020. The additional 1,200 MW increase will enable an already robust solar development market to continue to grow within the state. Since 2007, the amount of solar PV installed has increased 80 times from its initial 3.5 MWs. To achieve the 1200 MWs, the Massachusetts Department of Energy Resources (DOER) has issued a package of emergency regulations to keep the program operational and to absorb the approximately 150 MWs worth of project applications in the pipeline that currently exceed the 400 MW goal. Those projects are likely to remain eligible for Solar Renewable Energy Certificates (SRECs) available under the current 400 MW program. However, certain new restrictions apply. The emergency regulations require that solar photovoltaic (PV) projects larger than 100 kW must have administratively complete project applications, certain interconnection authorizations, and meet construction deadlines to qualify for the SRECs.
In addition, DOER plans to create a new class of SRECS for the additional 1,200 MWs of solar PV capacity currently referred to as the Solar Carve-Out II program or "SREC-II." Although many of the details of the program are under development, there are certain financial incentives under consideration that would be favorable for development of solar PV on contaminated land/Brownfield and landfill-type properties.
In the new SREC II Program, solar PV carve-out projects will be eligible for SREC-IIs for a fixed term (10 years) and then moved over to Class 1 Renewable Energy Credits (RECs). The financial incentive for solar projects will decline over time, which will help transition the program to a time where cost parity with other renewable sources is anticipated. Importantly, the financial incentive will now also differentiate between market sectors. DOER has identified market sectors, such as solar parking canopies and roof-mounted projects receiving the highest incentive levels. Projects on Landfills and Brownfields are proposed to receive the second highest incentive levels, since DOER wants to encourage PV development on these sites. Greenfield and open space-type solar PV development will not automatically get pre-determined incentive levels, but instead will have to bid competitively for incentives, referred to as "managed growth."DOER is expected to issue draft regulations for SREC II in the fall of 2013.
Additional information on DOER's SREC II program can be found here: SREC2
CLEAN ENERGY RESULTS PROGRAM SUCCESSES
Since the Clean Energy Results Program was launched in November 2011, MassDEP has assisted more than 100 clean energy projects, with the potential for more than 80 megawatts of clean energy across Massachusetts. Learn more about the tremendous progress made in our CERP efforts through quarterly reports submitted by MassDEP to DOER at: Reports
CLEAN ENERGY DEVELOPMENT COMPLIANCE ASSISTANCE
As a reminder, if you are currently involved in a renewable energy project on contaminated land or have been approached by a prospective project developer with such interest and need additional help or support or just want additional information on the CERP, please let me know. I would be happy to provide additional compliance assistance.
Thomas M. Potter
Clean Energy Development Coordinator
Bureau of Waste Site Cleanup
MassDEP, One Winter Street, 6th Fl, Boston, MA 02108
617-292-5628, [email protected]
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Potential False Positives in the Volatile Petroleum Hydrocarbon (VPH) Analytical Method: The Effect of Non-Target Compounds on MCP Decision-Making
By: Richard J. Rago, Haley & Aldrich; James Occhialini, Alpha Analytical Labs; and Jane Parkin Kullman, Haley & Aldrich
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Releases of petroleum products comprise a major source of environmental contamination. Although these petroleum products may contain complex and variable mixtures of hundreds of individual hydrocarbon compounds, some states still rely on traditional and inexact analytical approaches for petroleum identification and quantitation. Such approaches include measurement of specific indicator compounds, like benzene, toluene, ethylbenzene, and xylenes (BTEX) and/or the quantitation of a single "Total Petroleum Hydrocarbon" (TPH) concentration. However, analyses of BTEX and TPH provide little or no information on the specific hydrocarbon composition or its toxicity for various petroleum products that may be present in environmental media.
Recognizing the limitations of "indicator only" approaches, several regulatory entities have promulgated draft and final testing methodologies that attempt to better characterize the risks posed by all hydrocarbons present. The Massachusetts Department of Environmental Protection (MassDEP) published its Interim Final Petroleum Report: Development of Health-Based Alternative to the Total Petroleum Hydrocarbon (TPH) Parameterin 1994, which presented a toxicological-based approach to characterize and evaluate risks posed by petroleum-contaminated sites. The method developed to characterize "Volatile Petroleum Hydrocarbons" (VPH) was issued in draft form in August 1995 and as final procedures in January 1998. This paper focuses on VPH, characterized as the target compounds BTEX, methyl tert-butyl ether, and naphthalene plus three ranges of hydrocarbons, including the C5-C8 aliphatic hydrocarbons, C9-C12 aliphatic hydrocarbons, and the C9-C10 aromatic hydrocarbons.
Two separate limited, blind studies of the VPH method were conducted in 2000 and again in 2011. The studies included the analysis of aqueous samples which were spiked with only halogenated ethanes (or only aromatic hydrocarbons) which elute in the VPH hydrocarbon ranges of interest. The results of the studies are discussed, which confirm that the presence of halogenated ethanes and aromatic hydrocarbons could result in false positive VPH results. This paper also presents field case study data and provides strategies that will improve representativeness when bias is demonstrated in VPH data.
Click here to read the full paper in the LSPA's On-Line Journal.
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ASTM Standard Guide for Greener Cleanups
By: Susan Fessenden, Clean Energy Outreach Training Coordinator, MassDEP
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MassDEP Updates - LSPA September 2013 Member Meeting
By: Susan D. Chapnick, New Environmental Horizons, Inc., and MSP Committee
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Following our tradition of many years, the September 17, 2013 Monthly Member Meeting featured a panel presentation to update members on the activities of the Bureau of Waste Site Cleanup. The first speaker was Ben Ericson, BWSC Assistant Commissioner, who presented an overview entitled "Bureau of Waste Site Cleanup: Update and Plan for FY14." Following Ben was Paul Locke, BWSC Director of Response and Remediation, who discussed MassDEP's planned data systems upgrades and its "Similar Soils Policy." Elizabeth Callahan, BWSC's Acting Director of Policy and Program Development, concluded the panel presentation by updating attendees on the status of the pending MCP Amendments; click here for link to all presentations.
Ben noted that 91% of sites entering the MCP process are being closed out within 6 years notification, and that the use of AULs to achieve a Permanent Solution is trending downward. He also listed the following as BWSC's priorities for FY14:
1) The promulgation and implementation of the MCP Amendments,
2) The development of new guidance and policies for soil management,
3) Soliciting stakeholder input for DEP website content,
4) Developing an approach for managing imminent hazards related to TCE, and
5) Developing guidance and policies for the assessment of NRD (Natural Resource Damages) related to oil spills into surface water bodies.
Paul Locke gave a brief update on the MassDEP data system upgrades being made to achieve consistency with EPA's CROMERR (Cross-Media Electronic Reporting Regulation), and in support of EIPAS (Energy & Environmental Information & Public Access). These updates would also be coincident with amendments to eDEP forms to make them consistent with the pending amendments to the MCP.
Paul then presented the "Similar Soils Provision Guidance" (formerly known as the "Anti-Degradation" Policy), which can be found at http://www.mass.gov/eea/docs/dep/cleanup/laws/13-500.pdf. This new policy defines when/how certain soils can be managed (and re-used) without prior notice to or approval from MassDEP. This policy is intended to be the first piece of a comprehensive soil management strategy that the Department plans to develop in FY14; the next step will be to define and describe the re-use of "Reclamation Soil."
Liz Callahan concluded the program with a presentation on the status and schedule of the MCP Amendments, which at that time were expected to be published in November 2013. (We now understand that the current plan is for these amendments to be published in January 2014 and take effect early next spring.) Several significant changes had been made to the amendments based on comments submitted by the LSPA and others during the public comment period in the areas of 1) Tier classification criteria, 2) Conditions of SRM for Vapor Intrusion, 3) Active Exposure Pathway mitigation as part of a Permanent Solution with Conditions, 4) addressing LNAPL/NAPL (including source and performance standards), 5) AULs (including clarifications for background and historic fill), and 5) Numeric Standards.
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The author, as promised last year, is providing a personal Clean Energy Results Program (CERP) update. A solar PV system (see photo) was installed on her home roof in February 2013 through "Solarize Mass,"- a program run jointly by the MA Clean Energy Center and the Green Communities Division of the DOER. These solar panels have generated 7,300 Kwh to-date with a resulting negative electric bill, plus Solar Renewable Energy Credits (SREC) rebates!
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