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GEC Newsletter—Summer 2004


In this Issue...

 

Streamlining Asbestos Policies

Recently the Massachusetts Department of Environmental Protection (MADEP) published the Draft Asbestos in Soil, Streamlining Regulation and Management Policy. The policy focuses on asbestos and material containing asbestos found on the ground surface or buried at depth, as opposed to in-use building material. The intent of this policy is to coordinate the approach and requirements of numerous regulations, including the MADEP’s Air Quality Regulations (310 CMR 7.00), Solid Waste Regulations (310 CMR 19.000), the Massachusetts Contingency Plan (310 CMR 40.0000), and proposed guidance on “Best Management Practices”. The policy’s goal is to continue to protect public health and the environment from exposure to released asbestos, and allow for flexibility and certainty for people required to deal with asbestos in soil during the development of property and/or cleaning up releases.

Currently, significant procedural redundancy among State regulations lead to unnecessary costs and delays in construction and remediation. Proposed changes will streamline demolition and reconstruction projects as well as site cleanup where asbestos is encountered. It will also clarify regulatory notification, soil handling and disposal requirements, and routine asbestos containing materials (ACM) maintenance activities on building materials.

Soil containing unconsolidated asbestos where no ACM source is present will no longer be considered “Special Waste” under the draft policy, and notifying MADEP Bureau of Waste Prevention (BWP) and Bureau of Waste Site Cleanup (BWSC) will no longer be required. The policy refers to a new BWP Best Management Practice (BMP) guidance document for the excavation and loading of such soils. In addition, responsible parties will no longer be required to notify the BWP for activities associated with active response actions under the MCP. Property owners and/or developers must still notify the BWP prior to conducting active management of ACM not under the MCP.

Finally, additional proposed MCP and BWSC notification requirement changes include the exemption for intact structures such as pipes, boilers, concrete panels, and floor tile, and the requirement to notify the BWSC upon construction and demolition of debris containing asbestos.

In GEC’s opinion, these changes, if finalized, should save developers, property owners, and property managers time and money by eliminating redundancies in the state regulations. In addition, it will minimize other potentially conflicting elements of the MCP, asbestos, and solid waste regulations that may be site-specific. GEC believes these changes are changes for the better.


To Remediate or Not Remediate: Feasibility Evaluations Draft

The Massachusetts Department of Environmental Protection (MADEP) has prepared a Public Comment Draft of a policy entitled Conducting Feasibility Evaluations Under the MCP. Though still in draft form, this document provides some insight as to where the MADEP is going with feasibility evaluations.

There are six types of feasibility evaluations required as part of the MCP process:

The draft policy discusses only the feasibility of approaching background, as found in 310 CMR 40.1020 – the Response Action Outcome (RAO) section of the MCP – which requires that the feasibility of achieving background be evaluated at all sites where a remedial action is taken to achieve a Class A RAO. The five other feasibility evaluations are “reserved” for incorporation at a later date.

In GEC’s opinion, one of the more interesting pieces of the draft policy is the section describing Conditions of Categorical Infeasibility wherein the policy recognizes for certain types of contaminants in certain environments, remedial actions would be categorically infeasible. The incremental cost of conducting the remedial action would almost never be justified when compared to the incremental benefit or risk reduction. In these cases, it would be unnecessary to conduct a site-specific feasibility evaluation. Examples include excavation under permanent structure, remedial actions that would substantially interrupt public service, or specific instances with degradable /nonpersistent contaminants, like the BTEX compound found in most petroleum products.

The policy extends the MADEPs development of guidance to achieve “presumptive certainty” with respect to response actions. As stated in the draft policy, presumptive certainty is implicit in the characterization of risk using the Method 1 approach and has recently been incorporated into sample collection and analysis methodologies. Further, this document should clarify regulations and aid persons conducting these evaluations, taking some of the guesswork out of the process.

Changes in Wetlands Protection

The Massachusetts Department of Environmental Protection (MADEP) is proposing changes to the Wetlands Protection Act Regulations (310 CMR 10.00). Some changes are brief and clarify existing sections of the regulations; others are more substantial and may change how MADEP does business.

MADEP proposes deregulating selected “minor activities” [310 CMR 10.02(2)] that occur within buffer zones. The list of minor deregulated activities include:

Other buffer zone activities will be deregulated provided there is a valid Order of Resource Area Delineation and a written certification from the applicant stipulating:

Activities not meeting these criteria will be subject to a wetland filing. In GEC’s opinion, this “deregulation” may significantly increase the possibility of diminishing wetland values due to increased activity proximate to resource areas.

MADEP proposes modifying section 10.05(4), spelling out the abutter notification process and stating that conservation commissions will be the final determinant whether applicants have substantially complied with the abutter notification requirements.

MADEP proposes defining aggrieved persons as “any ten residents” who have either participated in proceedings through submission in writing to the conservation commission prior to the close of public hearings, or those who have submitted in writing to the MADEP as a result of a site visit prior to the issuance of a superseding order. GEC believes this new requirement may make it more difficult for residents not involved in the hearing process to appeal Conservation Commission decisions. Those concerned about a possible appeal by residents might be advised to document which residents are attending and participating in meetings.

Another topic covered by MADEP is coastal rivers. Due to ongoing debate concerning the mouth of rivers entering coastal waters (Section 10.58(2)), DEP has issued a map delineating the mouth of coastal rivers and has issued a coastal river policy outlining the method of determining river mouths.

GEC will be following the progress of these and other changes to the wetland regulations.

Hot Topic for Homeowners: Insurance and Heating Oil Spills

Each year, hundreds of unsuspecting Massachusetts homeowners are affected by home heating oil (fuel oil) releases. Such spills can result in dangerous health and environmental conditions, and in addition, the financial burden suffered by homeowners is often more than they can afford. The average cost for assessment and remediation activities associated with a heating oil release is estimated at $50,000; worst-case scenario remediation costs can reach $250,000. Much to many homeowners’ dismay, these costs are often not covered by homeowners insurance policies.

In light of this problem, new legislation has been proposed, and is strongly supported by the Licensed Site Professional Association (LSPA), that would provide relief to homeowners and ensure that the proper remediation measures take place after a release. The proposed legislation, H. 1961: An Act to Prevent Residential Liquid Fuel Spills into the Environment, would make affordable insurance coverage available to all compliant homeowners. The legislation would require insurers to charge reasonable premiums, provide coverage for response action costs and protect homeowners against third party liability claims.

In return, homeowners would be required to comply with new safety standards, such as placing fuel tanks above ground, enclosing supply lines with a protective sleeve or installing a safety valve at the end of the tank supply line. These requirements would not apply to systems installed or upgraded after January 1, 1996. Residents with systems installed before this date would have until January 1, 2008 to upgrade their systems. In failing to do so, residents may be denied applicable coverage as of January 1, 2008.

More information on H.1961 is available on the Massachusetts LSPA Website, which provides an informative fact sheet, a copy of the proposed legislation, written testimony in support of the bill, as well as a list of LSPs willing to accept homeowner accounts (http://www.lspa.org/). Included on this list are two GEC staff members, Samuel Butcher, LSP and Brian Butler, LSP.

Staying on Track with Compliance Updates

TUR Plan Updates
Companies using listed chemicals above threshold quantities should be preparing Toxic Use Reduction Plan Updates. GEC has a certified TUR General Planner ready to assist. TUR Plan Update Summaries are due to the MADEP by July 1st. The eDEP electronic filing system has been improved! You will need your DEP Facility ID #, Tax ID #, and TRI #, then go to https://edep.dep.mass.gov/DEPHome.aspx to register (both planner and company need to register online BEFORE filing).

Semi-Annual Wastewater Samples
Companies should check their permit requirements for semi-annual sampling and reporting of wastewater discharges. The June 30th report is right around the corner! GEC can assist by collecting grab or 24-hour composite samples, arranging analysis, and completing compliance reports.

OSHA Updates
OSHA has identified the companies with the highest work-related injury and illness rates across the country and intends on contacting them to urge them to get assistance to improve their performance. Our EHS professionals can assist your company develop and implement safety programs that lower workers compensation claims and insurance costs while improving employee morale.

DOT Hazmat Security Plans
Legislation, effective in 2003 via the U.S. Department of Transportation and the Office of Homeland Security regarding hazardous materials transportation, requires shippers of hazardous materials to develop and implement security plans by September 25, 2003. If you ship materials requiring placards and need help developing a plan, contact GEC for assistance.

SPCC Plans
Spill Pollution Prevention Control and Countermeasure (SPCC) Plans for companies storing greater than 1320 gallons of oil need to be revised and implemented with a Professional Engineer (PE) certification by August 17, 2004. Don’t wait until the last minute!

EPCRA Tier II Reports
For companies storing > 10,000 lbs. of hazardous materials or >500 lbs. of extremely hazardous materials, March 1, 2004 is the annual deadline for filing EPCRA (Emergency Preparedness and Community Right-to-Know) Tier II reports. The fines for non-compliance can be up to $27,500 per day, per chemical.

MADEP Revises Hazardous Waste Regulations
The MADEP has revised the hazardous waste rules in Massachusetts (310 CMR 30). To review the details and see how these changes affect your business click on: http://www.state.ma.us/dep/bwp/dhm/dhmpubs.htm

Please contact Neil Inglis, Environmental, Health and Safety Manager at GEC, if you have any questions or would like additional assistance with any of these required submittals or deadlines.

[June 2004]