An LSP’s Opinion: Changes to Activity and Use Limitations Under the New MCP

In late June, the Massachusetts Department of Environmental Protection issued a revised Massachusetts Contingency Plan (MCP: 310 CMR 40.0000).  The revisions included a number of changes about how Notices of Activity and Use Limitations (AULs) are prepared, recorded and applied.  Omni Environmental Group has summarized a few of the more significant changes below.

1. Exhibit C to the AUL (formerly called the Activity and Use Limitation Opinion) no longer needs to repeat verbatim the prohibited uses, allowed uses and limitations which are included in the main body of the AUL text.  Exhibit C is now intended to be strictly a narrative explaining the AUL and discussing, in relatively plain English, what the contamination is, where the contamination is and why the AUL is needed.  In addition, Exhibit C no longer needs to be signed by a Licensed Site Professional.
2. With the elimination of the Activity and Use Limitation Opinion in the AUL, transmittal form BWSC-113A is no longer required to be part of the AUL.
3. Both the newly revised version of the MCP and the older version of the MCP require that AULs be incorporated in full or by reference into future deeds, leases, mortgages. etc.  The new MCP revisions require that each time a deed conveying record title for a property is recorded, a copy of the new deed is submittted to the MassDEP within 30 days by either the grantor and grantee.  The main AUL form which gets recorded at the Registry of Deeds (Form 1075) now includes language to this effect at the top of the first page of the form.
4. The revised AUL form also has standardized language that must be included if the AUL is used to support the use of an Active Exposure Pathway Mitigation Measure (such as a subslab depressurization system) as part of a Permanent Solution with Conditions.  The new standardized language includes a number of requirements to ensure the system is operating and that notification and corrective action is taken if the system is not operating.
5. The  use of AULs is now allowed on Federal Superfund sites.  Any existing land use controls in the Superfund Record of Decision must be incorporated into the AUL. However, a number of typical AUL components are not required to be used at Superfund sites under the new MCP revisions, including the use of the main AUL form (Form 1075).  The components which are not required are described at 310 CMR 40.1070(4).

This is a brief summary of the key revisions about how AULs are prepared, recorded and applied under the MCP.  Omni Environmental Group will get into some of the details of revisions to other key areas of the MCP in future blog postings.

In the meantime, if you need more information about how the MCP revisions might affect you, please contact Omni Environmental Group’s Licensed Site Professional (LSP) at 978-256-6766 or Info@OmniEG.com.

“An LSP’s Opinion” is an occasional feature here in the Omni Environmental Group blog where we talk about the Massachusetts Contingency Plan along with the roles and responsibilities of Licensed Site Professionals.