Omni Environmental Group gets this question frequently. A client, or more often a potential client, usually asks something like…”if contamination is discovered on my property, is the Licensed Site Professional required to notify the Massachusetts Department of Environmental Protection?”
In most cases, the answer is no.
The regulation which governs Licensed Site Professionals addresses this issue at 309 CMR 4.03(4):
“If a licensed site professional identifies a release or threat of release that in the LSP’s professional judgment poses or could pose an Imminent Hazard as described in 310 CMR 40.0321 at a particular site at which he or she is providing Professional Services, he or she shall:
(a) immediately advise his or her client of the need to notify the Department of the Imminent Hazard; and
(b) notify the Department of the imminent hazard no later than 24 hours after identifying such, unless the client has provided such notice.”
Based on this, an LSP is only required to notify the MassDEP of a condition which poses an Imminent Hazard and only if the LSP’s client doesn’t notify or authorize the LSP to notify the MassDEP first.
So the question is – what’s an Imminent Hazard? The Massachusetts Contingency Plan defines it as “a hazard which would pose a significant risk of harm to health, safety, public welfare or the environment if it were present for even a short period of time, as further described in 310 CMR 40.0950.”
The Massachusetts Contingency Plan (at 310 CMR 40.0321) identifies the following specific circumstances as Imminent Hazards:
“(a) a release to the environment which results in the presence of oil and/or hazardous material vapors within buildings, structures, or underground utility conduits at a concentration equal to or greater than 10% of the Lower Explosive Limit;
(b) a release to the environment of reactive or explosive hazardous material, as described in 310 CMR 40.0347, which threatens human health or safety;
(c) a release to a roadway that endangers public safety;
(d) 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;
(e) a release to the environment of oil and/or hazardous material which produces immediate or acute adverse impacts to freshwater or saltwater fish populations; or
(f) a release to the environment which produces readily apparent effects to human health, including respiratory distress or dermal irritation.”
The Massachusetts Contingency Plan (also at 310 CMR 40.0321) also states that the following could pose an Imminent Hazard:
“(a) a release to the environment indicated by the measurement of oil and/or hazardous material in a private drinking water supply well at a concentration equal to or greater than ten times the Category RCGW-1 Reportable Concentration, as described in 310 CMR 40.0360 through 40.0369 and listed at 310 CMR 40.1600; or
(b) a release to the environment indicated by the measurement of concentrations of hazardous material, equal to or greater than any of the following concentrations at the ground surface or within a depth of twelve inches below the ground surface, at any location within 500 feet of a residential dwelling, school, playground, recreation area or park, unless access by children is controlled or prevented by means of bituminous pavement, concrete, fence, or other physical barrier:
Arsenic – 40 mg/kg
Cadmium – 60 mg/kg
Chromium (VI) (or Total Chromium in the absence of Chromium VI data) – 200 mg/kg
Cyanide (available) – 100 mg/kg
Mercury (total) – 300 mg/kg
Methyl Mercury – 10 mg/kg
PCB (total) – 10 mg/kg
(c) a release to the environment for which estimated long-term risk levels associated with current exposures are greater than ten times the Cumulative Receptor Risk Limits in 310 CMR 40.0993(6).”
The above are specific examples where the LSP would need to notify the MassDEP of contamination at a property. It’s a pretty limited number of situations and in a lot of the cases, the severity of the situation is obvious (think a spill on a roadway or oil in a surface water body). In these cases, the LSP would need to notify the MassDEP even if the the client didn’t want the notification to be made.
And don’t think that firing the Licensed Site Professional will prevent them from notifying the MassDEP. An LSP is still obligated to notify the MassDEP of an Imminent Hazard even if they are fired before doing so.
There are many other situations where a Responsible Party is required to notify the MassDEP of contamination. These conditions are less severe and there is no obligation for the LSP to notify the MassDEP. Omni Environmental Group will explore other notification requirements in future posts.