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Changes to the ASTM Standard for Phase I ESA’s in 2021
There is a big change on the horizon that will significantly impact commercial real estate transactions. ASTM E1527-13, entitled Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process, is the nationally recognized standard for evaluating environmental risk at a commercial property during acquisition or financing. The ASTM standards expire every eight years, and ASTM E1527-13 is scheduled to sunset on December 31, 2021. Therefore, the new standard, ASTM E1527-21, must be finalized and published sometime in 2021.
The ASTM subcommittee in charge of this process is considering updating certain key components to the standard. These changes are sure to have an impact on future commercial real estate transactions. While numerous changes are being proposed, most are relatively minor, aimed at reinforcing the current standard. A few, however, will have a significant impact on the standard.
The following provides an overview of those proposed changes and how they will affect the Phase I Environmental Site Assessment (ESA) process, and what our clients can expect out of the new standard.
Just what defines a REC?
If you have been involved in the procurement, preparation, review, or use of a Phase I ESA Report, you know the biggest concern many environmental professionals, buyers/sellers of commercial property, and lending institutions struggle with is “Are there one or more Recognized Environmental Conditions [RECs] at the subject property?”. Just what defines a REC has progressed through revisions to ASTM E1527 in an effort to clarify this most critical concern. At present, a REC is divided into three tiers of risk: 1) REC; 2) Controlled REC [CREC]; and Historical REC [HREC]. A de minimis condition is not a REC. Similarly, Business Environmental Risk is not a REC but may still have a significant bearing on the current or planned future use of a commercial property. Unfortunately, these terms often remain misconstrued and are not applied appropriately.
To address these issues, the forthcoming ASTM E1527-21 standard will likely update the definition of a REC, providing a logic diagram (if this, then that) and numerous theoretical instances to aid environmental professionals and end-users in the understanding and application of these terms under a Phase I ESA.
When is a release “likely?”
The current ASTM E1527-13 standard defines a REC as “the presence or likely presence of any hazardous substances or petroleum products…”. Environmental professionals have diverging opinions on how the word “likely” should be construed regarding determining a REC, with interpretations ranging from very broad to conclusive and strict. The forthcoming ASTM E1527-21 standard is anticipated to include a definition of the word “likely” to improve consistency in determining RECs under a Phase I ESA.
Why must we understand the history of Adjoining Properties?
The ASTM subcommittee has been evaluating potential changes under E1527-21 regarding the level of effort to fulfill historical research requirements for adjoining properties. While the ASTM E1527-13 standard directs historical use evaluation of adjoining properties through information obtained for the subject property, it does not require environmental professionals to address potential gaps in the historical uses of adjoining properties.
The historical use of adjoining properties can be a critical piece of environmental due diligence research in quantifying the potential for oil and/or hazardous material migration (e.g., groundwater, vapor intrusion) onto a subject property.
While not finalized, the proposed changes may require historical research for the adjoining properties to be commensurate with the level needed for the subject property and/or require environmental professionals to address potential gaps in the historical uses of certain adjoining properties. Such revisions could raise the level of effort, thereby increasing the budget and timeframe necessary to complete a Phase I ESA Report (especially for urban, highly developed locations).
Why do we need heightened awareness for Emerging Contaminants?
Per- and polyfluoroalkyl substances [PFAS] are considered emerging contaminants that have been viewed with increasing concern within the environmental consulting profession. Studies have linked adverse human health impacts to PFAS exposures. Notwithstanding, the Environmental Protection Agency (EPA) has yet to classify PFAS as a hazardous substance under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
While all indications are that the EPA is advancing toward this designation, potential contamination from PFAS does not rise to the level of a REC under the current ASTM Phase I ESA standard. This has left environmental professionals grappling with how to address the risk of PFAS contamination in a Phase I ESA report.
To heighten awareness, E1527-21 proposes to include PFAS and other emerging contaminants in Non-Scope Considerations that some environmental professionals and end-users may want to evaluate as part of a Phase I ESA report.
When is a Data Gap significant?
A data gap may be encountered through a lack of or inability to obtain information required under the standard despite good faith efforts by the environmental professional to gather it. The current standard requires the Phase I ESA report to identify such data gaps.
E1527-21 proposes emphasizing whether significant data gaps impact the environmental professional’s ability to identify RECs. Specifically, the proposed changes would require an opinion about whether significant data gaps warrant additional investigation and discussion of these data gaps in the executive summary for increased transparency.
When does the viability of a Phase I report expire?
EPAs All Appropriate Inquiries [AAI] Rule mandates specific components to be conducted within 180 days of the date of the property purchase or intended transaction. These components are 1) interviews with owners, operators, and occupants; 2) environmental cleanup lien research; 3) visual inspection of the property and adjoining properties; 4) review of government records; and 5) declaration by an environmental professional. After one year, the entire Phase I ESA report must be updated to meet the AAI Rule. A common error of those relying on a Phase I ESA report is to assume the date of the report starts the 180-day timeframe of viability.
E1527-21 will require the date of completion for each element of the Phase I ESA report, allowing end-users to readily identify when one or more updates are needed according to the AAI Rule. Additionally, the updated standard will note that a Phase I ESA report represents a snapshot in time and is not intended to forecast beyond the date it was produced.
When does this new standard go into effect?
Over the next few months, the ASTM subcommittee will consider input from the environmental due diligence industry and stakeholders, then finalize and subsequently vote on proposed changes under E1527-21. The EPA will then review to verify that the new standard meets the intent and requirements of the AAI Rule. The new ASTM E1527-21 standard is expected to be finalized and published before December 31, 2021.
Have questions, concerns, or suggestions to share?
If you are a prospective buyer or seller of commercial real estate or an investor, lender, attorney, or environmental professional and have questions, concerns, or suggestions about the new ASTM E1517-21 standard drafting process, we encourage you to reach out to the ASTM Committee E50 on Environmental Assessment, Risk Management, and Corrective Action. Information on this committee can be found at https://www.astm.org/COMMITTEE/E50.htm
Is it Time to Update Your Stormwater Pollution Prevention Plan (SWPP) to Conform to New MSGP Requirements?
On January 15, 2021, the EPA finalized the 2021 Multi-Sector General Permit (MSGP) for discharges of industrial stormwater. This 2021 MSGP supersedes the 2015 permit. Existing and new facilities with industrial stormwater discharges need to apply for coverage under the new permit by submitting a Notice of Intent (NOI) to the EPA or a state-mandated program. In addition, all subject facilities must update their stormwater pollution prevention plan (SWPP) to conform with the 2021 MSGP requirement.
What are the new deadlines under the 2021 MSGP?
What changes under the 2021 MSGP?
Details regarding new or modified requirements to the 2021 MSGP can be found here. The most salient changes to the 2021 MSGP are noted below:
- Public signage containing EPA contact information at publicly accessible locations proximate to the facility.
- Quarterly “Report Only” Monitoring for pH, TSS, and COD for certain operators. These parameters do not have an action level unless other water quality standards apply.
- “Report Only” Monitoring for Polycyclic Aromatic Hydrocarbons for certain operators twice per year during their first and fourth years of coverage. These parameters do not have an action level unless other water quality standards apply.
- Updated benchmark thresholds for Aluminum, Copper, Selenium, and Cadmium. Facilities that exceed the revised thresholds for aluminum and copper may utilize the national recommended water quality criteria multi-variable models to demonstrate to the EPA they have not resulted in calculated exceedances of facility-specific values.
- Suspended benchmark thresholds for Magnesium and Iron, based on a lack of acute toxicity.
- New benchmark monitoring schedule allowing an operator that does not exceed the four-quarter annual average for one or more parameter(s) in the first four to discontinue benchmark monitoring for the subsequent eight quarters. Monitoring shall resume for all parameters for the next four quarters, allowing the operator to terminate benchmark monitoring for the remainder of MSGP coverage if there are no four-quarter annual average exceedances for a given parameter. There are similar monitoring schedule flexibility provisions for discharges to impaired waters without required total daily maximum load thresholds.
- Consideration of heightened control measures for facilities that can be impacted by major storms to reduce pollutants during such events. While such controls are not mandated, the 2021 MSGP requires facilities to provide documented evaluation of employing such controls.
Omni Environmental Group is here to support you!
Please contact us at info@omnieg.com if you need help with the 2021 MSGP, have questions about your facility’s compliance, or are uncertain if your facility is subject to the 2021 MSGP. We can assist you in determining applicability, applying for stormwater coverage, preparing facility-specific SWPPP documents, and maintaining stormwater compliance.
Important EPA Changes to Lead and Copper Rule to Improve Drinking Water Quality
The Environmental Protection Agency (EPA) has made significant changes to its Lead and Copper Rule (LCR) in an effort to better protect humans from the risks of lead exposure in the nation’s drinking water.
Changes under the LCR include:
- science-based testing to identify sources of lead in drinking water;
- establishing a benchmark level for earlier mitigation;
- requiring testing in schools and child care facilities;
- more comprehensive lead line replacements; and
- providing communities with information on the locations of lead service lines.
If you suspect that lead, copper, arsenic, per- and polyfluoroalkyl substances (PFAS), or other contaminants could be in your municipal or private drinking water supply, the trained professionals at Omni Environmental Group are ready to help. We will discuss your concerns and collect representative raw (untreated) water samples from the drinking water supply serving your residence, municipal building, or business, then submit them to a certified laboratory for analysis. We will review and interpret the analytical data compared to applicable Drinking Water Standards and provide you with a summary of the results. Based on the findings, we can recommend treatment or mitigation measures protective of human health and be your advocate for improving the quality of your drinking water.
More information about the recent EPA revisions can be found at https://www.epa.gov/ground-water-and-drinking-water/final-revisions-lead-and-copper-rule
Have concerns about your water supply? Don’t hesitate to contact us: 978-256-6766 or info@omnieg.com.
Are PFAS In Your Private or Public Drinking Water Supply?
What are PFAS?
Per- and polyfluoroalkyl substances (PFAS) are man-made chemicals, consisting of 4,000+ fluorinated organic compounds in use since the 1940s. They are colorless, odorless, and resistant to heat, oil, and water. Due to their strong bonds, these persistent fluorinated chemicals have been dubbed “forever” chemicals, with long-chain PFAS compound half-lives of over 40 years. Through their wide use over the last +/-80 years, PFAS compounds are ubiquitous across the globe, including having been identified in mammals in remote regions of the artic.
PFAS are found in many common products. They include but are not limited to, non-stick cookware, stain/water-repellant fabrics, and other textiles, wire coating, leather and paper goods, plastics, rubber, carpet, packaging, electronics, plating, and firefighting foams. As of 2015, PFAS are no longer manufactured in the U.S. but they are still produced internationally and imported in the previously mentioned consumer goods.
How do PFAS affect the environment and your health?
PFAS contaminants are released into the air, deposited in soils, and mobilized to groundwater and surface water, causing impacts to plants, wildlife, and humans. Exposure to PFAS has become an emerging issue across the country due to the toxicity of select PFAS compounds, their solubility, and mobility in water; their persistence in the environment from their lack of ability to degrade via natural processes; and their ability to bioaccumulate in living things.
PFAS contamination that enters surface water and groundwater can further migrate and impact private and public water supplies.
Image by Pennsylvania Department of Environmental Protection via www.dep.pa.gov/pfas.
According to the MassDEP, health effects associated with exposure to PFAS may be:
- accumulation in blood, liver, and kidneys of fish, wildlife, and humans;
- effects on the thyroid, liver, kidneys, hormone levels, and the immune system;
- cancer risk following long-term exposures to elevated levels of some PFASs; and
- developmental effects in fetuses during pregnancy and in breastfed infants.
Localized elevated concentrations of PFAS compounds can be associated with manufacturing facilities producing goods containing PFAS, landfills, sludge fields from wastewater treatment plants, septic systems, airports, military facilities, firefighting training facilities, and firefighting foam application sites.
In May 2016, EPA issued a lifetime Health Advisory (HA) of 70 ppt or 70 ng/L for PFAS in drinking water. In October 2020, MassDEP published its PFAS public drinking water standard of 20 parts per trillion (ppt) or 20 nanograms per liter (ng/L) individually or for the sum of the concentrations of the following six (6) specific PFAS compounds:
- perfluorooctane sulfonic acid (PFOS);
- perfluorooctanoic acid (PFOA);
- perfluorohexane sulfonic acid (PFHxS);
- perfluorononanoic acid (PFNA);
- perfluoroheptanoic acid (PFHpA); and
- perfluorodecanoic acid (PFDA).
Omni Environmental Group can Help You with PFAS Concerns, Sampling, and Risk Mitigation
Omni Environmental Group is aware of the present challenges and current limitations associated with assessment, remediation, and management of PFAS contaminated sites. Investigation, sampling, and remediation efforts require pioneering, flexible, and skilled consultants; actively engaged in the emerging policies, apprised of current research, and able to respond to regulatory changes and advancing technologies to achieve successful risk mitigation at PFAS sites.
We are ready to aid homeowners, property owners, and municipalities with PFAS concerns by:
- Assessing and sampling of drinking water private and public water supplies;
- Locating the source(s) of the PFAS contamination;
- Aiding in the management of PFAS-contaminated waste streams
- Setting up of water treatment systems and alternative water supply;
- Forming site-specific best management practices;
- Providing regulatory guidance;
- Conducting due diligence assessment for property transactions; and
- Complying with emerging and evolving regulations.
The trained professionals at Omni Environmental Group are available to answer any questions, provide for sampling, mitigation, and/or assessment activities regarding PFAS or other environmental issues you may have by phone at 978-256-6766 or email at info@omnieg.com.
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3 Things Spill Response Professionals Should Know About LSPs
If you’re managing a spill of oil or hazardous materials in Massachusetts that exceeds a Reportable Concentration, you will need a Licensed Site Professional (LSP) to oversee the assessment and remediation. Below are 3 facts about LSPs anyone involved in spill response should know.
- What is an LSP? An LSP is a person authorized by the Commonwealth of Massachusetts to manage spills and releases of oil and hazardous materials that are regulated under the Massachusetts Contingency Plan (MCP; 310 CMR 40.0000). LSPs work on behalf of property owners, operators, and other parties who are considered “responsible parties” under the MCP. LSPs are scientists with significant knowledge and expertise in oil and hazardous material contamination.
- Who Licenses LSPs? LSPs are licensed by an independent state board known as the Massachusetts Board of Registration of Hazardous Waste Site Cleanup Professionals, or the LSP Board for short. To be an LSP, you must meet specific criteria for both education and experience and pass an exam demonstrating technical and regulatory knowledge. LSPs are also required take 48 hours of continuing education courses every three years in order to maintain their licenses.
- What Does an LSP Do? According to the LSP Board, “The LSP collects data on conditions at the site, interprets this data, assesses the risks posed by the site to health, safety, public welfare, and the environment, and recommends and oversees necessary cleanup activities. In providing these services, the LSP is responsible for making sure that the formal, written opinions that he or she provides about response actions at a disposal site, and the activities that lead up to these opinions, are consistent with the requirements of the MCP.”
Learn more about Omni Environmental Group’s LSP services on our LSP services web page or contact us at 978-256-6766.
Phase I Environmental Site Assessment FAQs
Do you have questions about Phase I Environmental Site Assessments? You’re not alone. Omni Environmental Group gets a lot of questions about Phase I’s from property owners, property buyers and sellers, as well as from lenders whose primary job is not necessarily environmental due diligence. Below are the most frequent of the Frequently Asked Questions we receive about Phase I Environmental Site Assessments.
What is a Phase I Environmental Site Assessment? A Phase I is a standardized method to evaluate the potential for contamination at a property resulting from a release of petroleum or hazardous materials. Phase I Environmental Site Assessments are usually performed in accordance with the Phase I standard developed and published by ASTM International. The goal of a Phase I is to identify whether “Recognized Environmental Conditions,” as defined in the ASTM standard, are present at a property.
What is a 21E? In Massachusetts, the expression “21E” is used to mean a Phase I Environmental Site Assessment. It’s a reference to Chapter 21E which is the Massachusetts law governing the assessment and remediation of contaminated property.
Why do I want a Phase I? For property buyers and lenders, the Phase I helps to evaluate potential environmental problems and manage risk during the purchase or financing of real estate. This is important because a property owner can be responsible for contamination on their property, regardless of when the contamination happened or whether the contamination was their fault. For property sellers, a Phase I can help reduce a potential buyer’s risk, making a property more marketable.
What is included in a Phase I? A Phase I Environmental Site Assessment generally includes the following elements:
- reviewing state and federal environmental databases, municipal records, historic maps, street directories and aerial photos;
- visiting the property to observe the nature of current activities;
- interviewing parties associated with the property; and
- preparing a Phase I Environmental Site Assessment Report.
What factors affect the cost of a Phase I? The most common factors include the location, size, and complexity of the property, and whether there are environmental reports for the property or abutting properties which need to be reviewed and incorporated into the Phase I report.
What factors affect the turnaround time of a Phase I? The most common factors include the size and complexity of the property, and the availability of government and historic records.
What are the possible outcomes of a Phase I? There are two outcomes of a Phase I:
- If no Recognized Environmental Conditions are identified during the Phase I, additional work to further evaluate potential contamination is generally not necessary.
- If one or more Recognized Environmental Conditions are identified during the Phase I, then additional work is recommended to further evaluate the potential for contamination. The scope of the additional work will depend on the specific characteristics of the Recognized Environmental Condition and may include things like reviewing additional records or collecting and analyzing soil or water samples.
What are the limitations of a Phase I? The Phase I evaluates the potential for contamination solely based on visual evidence, interviews, and available records. The Phase I does not include soil or water testing. The findings of the Phase I should not be considered scientific certainties, but rather probabilities based on the professional judgment of the environmental professional preparing the Phase I.
We’ve kept the answers to these FAQs brief, only touching on the primary points. If you would like more information, or if you have other Phase I Environmental Site Assessment questions, please don’t hesitate to contact Omni Environmental Group at 978-256-6766 or Info@OmniEG.com.
72-Hour Reportable Conditions under the Massachusetts Contingency Plan
In order to protect human health, safety, public welfare and the environment, the Massachusetts Department of Environmental Protection (MassDEP) must be notified not more than 72 hours after obtaining knowledge of a release of oil and/or hazardous materials (OHM), which meet the 72-Hour Reportable Condition criteria which are described in the Massachusetts Contingency Plan (MCP; 310 CMR 40.0000).
Some of the most common 72-Hour Reportable Conditions include the following:
- Nonaqueous phase liquid (OHM that is present in the environment as a separate phase liquid) is identified at a thickness equal to or greater than ½ – inch in a groundwater monitoring well, excavation, or subsurface structure, which is situated more than 30 feet from an occupied residence, school, daycare, or child care center.
- OHM which is detected in soil or groundwater during an underground storage tank (UST) removal or closure, at concentrations equal to or greater than 100 parts per million by volume, referenced to benzene, using a headspace screening methodology, and the sample was obtained within ten feet of the UST and more than two feet below the ground surface.
- The detection of OHM in groundwater which is located within the Zone I protection area for a public water supply well (generally within 400 feet) or within 500 feet of a private water supply well, at concentrations equal to or greater than Reportable Concentrations for groundwater category RCGW-1. Groundwater category RCGW-1 has the most stringent groundwater standards since groundwater from these areas are used, or have the potential to be used, as a drinking water source.
- UST tightness testing results, from either a single wall UST or the inner or outer wall of a double wall UST, which indicate that a leak may be occurring from the UST at a rate equal to or greater than 0.05 gallons per hour.
- A Condition of Substantial Release Migration exists. The following scenarios are considered a Condition of Substantial Release Migration:
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- Releases of NAPL to surface water, buildings, or underground utilities;
- Releases of OHM to the ground surface or vadose zone (subsurface soil where groundwater is not present), that is likely to impact groundwater if actions are not taken quickly to contain or remove the OHM;
- Releases of OHM to groundwater that will migrate, or have the potential to migrate, more than 200 feet per year;
- Releases of OHM to groundwater that have been detected, or are likely to be detected, within one year in water supply wells, surface water bodies, or a public water supply reservoir;
- Releases of OHM to groundwater or the vadose zone, that have affected, or have the potential to affect, indoor air quality of a occupied residence, school, daycare or child care center.
The MassDEP must be notified by telephone not more than 72 hours after obtaining knowledge of the 72-Hour Release Condition. The following information must be provided to the MassDEP during the telephone conversation:
- The name and telephone number of the caller
- Location of the spill
- Date and time that the spill occurred
- Type of Reportable Condition (i.e. 72-hour)
- Type of OHM (i.e. gasoline, chlorinated solvents, etc.)
- Source of OHM (i.e. where did the OHM come from?)
- Description of the release
- Contact information of the owner/operator of the source of OHM
- A description of the initial actions taken in response to the release (referred to as Immediate Response Actions in the MCP)
- Names of the involved parties (federal, state or local government agencies that have been notified and have responded to the spill)
Following notification by telephone, a Release Notification Form must be submitted to the MassDEP within 60 days. The information required for the Release Notification Form is similar to the information provided to the MassDEP during the initial notification.
If a 72-Hour Reportable Condition exists, actions must be taken immediately to assess, cleanup and/or contain the release. These actions are referred to in the MCP as Immediate Response Actions and are required in the event of a 72-Hour Reporting Condition in order to reduce the risk of harm to health, safety, public welfare and the environment. Immediate Response Actions will be discussed in future blog posts.
If you need more information regarding 72-Hour Reportable Conditions, or if think you may have a Reportable Condition, please contact Omni Environmental Group’s Licensed Site Professionals (LSPs) at 978-256-6766 or Info@OmniEG.com.
Two-Hour Reportable Conditions under the Massachusetts Contingency Plan
As discussed in the previous blog post titled “Reportable Conditions under the Massachusetts Contingency Plan”, a Two-Hour Reportable Condition is the most time critical Reportable Condition described in the Massachusetts Contingency Plan (MCP; 310 CMR 40.0000). The Massachusetts Department of Environmental Protection (MassDEP) must be notified of Two-Hour Reportable Conditions in order to protect human health, safety, public welfare and the environment.
Some examples of Two-Hour Reportable Conditions include the following:
- A sudden spill, or a threat of a sudden spill, of oil and/or hazardous materials (OHM) to the environment, which is greater than, or is likely greater than, a specified quantity (referred to in the MCP as a Reportable Quantity; such as more than 10 gallons of gasoline, transmission oil, and/or waste oil; more than 55 gallons of vegetable oil; or more than 1 pound of polychlorinated biphenyls (PCBs)) and the spill likely occurred within 24 consecutive hours or less;
- A spill of any amount of oil which results in a sheen on a surface water body;
- The detection of OHM which exceeds a specified concentration (called a Reportable Concentration) in a private drinking water supply well;
- A spill of any amount of OHM, even if present for a short amount of time, which poses, or could pose, a significant risk of harm to health, safety, public welfare and/or the environment (referred to in the MCP as an Imminent Hazard);
- A spill of OHM that is greater than, or likely is greater than, the respective Reportable Quantity and has occurred, or is likely to have occurred, within 24 consecutive hours or less, that is indirectly released to the environment by entering a stormwater drainage system; and
- A spill of any amount of OHM that is indirectly released to the environment by entering a sanitary sewer system.
If a Two-Hour Reportable Condition exists, the MassDEP must be notified by telephone as soon as possible and within two hours of when the person accountable for the spill (referred as the Responsible Party in the MCP) obtains knowledge of the condition. The following information must be provided to the MassDEP during the telephone conversation:
- The name and telephone number of the caller
- Location of the spill
- Date and time that the spill occurred
- Type of Reportable Condition (i.e. two-hour)
- Type of OHM (i.e. gasoline, vegetable oil, or PCBs)
- Source of OHM (i.e. where did the OHM come from?)
- Description of the release
- Contact information of the owner/operator of the source of OHM
- A description of the initial actions taken in response to the spill (referred to as Immediate Response Actions in the MCP)
- Names of the involved parties (federal, state or local government agencies that have been notified and have responded to the spill)
Following notification by telephone, a Release Notification Form must be submitted within 60 days to the MassDEP. The Release Notification Form is available on MassDEP’s website. The information required to fill out the Release Notification Form is very similar to the information provided to the MassDEP during the initial notification.
If a Two-Hour Reportable Condition exists, actions must be taken immediately to assess, cleanup and/or contain the spill. These actions are referred to in the MCP as Immediate Response Actions. Immediate Response Actions are required in the event of a Two-Hour Reporting Condition to reduce the potential risk of harm to health, safety, public welfare or the environment. The concept of Immediate Response Actions will be discussed in future blog posts.
If you need more information about Two-Hour Reportable Conditions, or if think you may have a Reportable Condition, please contact Omni Environmental Group’s Licensed Site Professionals (LSPs) at 978-256-6766 or Info@OmniEG.com.
Reportable Conditions under the Massachusetts Contingency Plan
The Massachusetts Contingency Plan (MCP; 310 CMR 40.0000) is the Massachusetts Department of Environmental Protection’s (MassDEP’s) regulation regarding the assessment and cleanup of oil and/or hazardous materials (OHM) spills and releases to the environment. One of the most fundamental elements of the MCP is the concept of Reportable Conditions. Reportable Conditions are those conditions which, if met, require notification to the MassDEP within specified timeframes. There are three types or levels of Reportable Conditions; Two-Hour Reportable Conditions, 72-Hour Reportable Conditions, and 120-Day Reportable Conditions. We’ll briefly discuss each of these three conditions below.
Two-Hour Reportable Conditions are the most time critical Reportable Conditions. Some examples include:
- A sudden spill of OHM which exceeds a specified quantity (called a Reportable Quantity; such as more than 10 gallons of oil);
- A spill of any amount of oil which results in a sheen on a surface water; and
- The detection of OHM which exceeds a specified concentration (called a Reportable Concentration) in a private drinking water supply well.
72-Hour Reportable Conditions are also time critical, but considered less time critical than Two-Hour Reportable Conditions. Some examples include:
- A measurement of 100 parts per million or greater of total volatile organic compounds, as measured with a photoionization detector, in soil around an underground storage tank that has been removed;
- An OHM release to the soil or groundwater that has resulted or has the potential to result in the discharge of vapors into a school, daycare, or a residence; and
- The detection of OHM which exceeds a Reportable Concentration within 500 feet of a private drinking water supply well or within the Zone I protective radius of a public drinking water supply well.
120-Day Reportable Conditions are the least time critical of the three categories of Reportable Conditions. Some examples include:
- The detection of a hazardous material in soil or groundwater at a level which exceeds its Reportable Concentration;
- The detection of oil in groundwater at a level which exceeds its Reportable Concentration; and
- The detection of oil in soil at a level which exceeds its Reportable Concentration where the volume of contaminated soil equals two cubic yards or more.
If a Reportable Condition exists, the MassDEP must be notified of the condition within the specified timeframe.
- For a Two-Hour Reportable Condition, the MassDEP must be notified by telephone within two hours of when the Responsible Party obtains knowledge of the condition.
- For a 72-Hour Reportable Condition, the MassDEP must be notified by telephone within 72 hours of when the Responsible Party obtains knowledge of the condition.
- For a 120-Day Reportable Condition, the MassDEP must be notified through the submission of a Release Notification Form within 120 days of when the Responsible Party obtains knowledge of the condition.
The Responsible Party is the person or entity who is required to notify the MassDEP. The Responsible Party is often the party responsible for the spill, or the owner of the property where the spill occurred or where the contamination was detected. If notification to the MassDEP is required, the Responsible Party is also required under the MCP to conduct additional assessment activities and, if necessary, remedial or cleanup activities until the risk to human health and the environment are below acceptable standards.
This blog post is a brief summary of the three types of Reportable Conditions and a few examples of spills or releases which meet the criteria of each type of Reportable Condition. There are additional criteria for each of the three Reportable Conditions. Omni Environmental Group will provide further information about Two-Hour Reportable Conditions, 72-Hour Reportable Conditions and 120-Day Reportable Condition, along with required MCP response actions, in future blog posts.
If you need more information about Reportable Conditions, or if think you may have a Reportable Condition, please contact Omni Environmental Group’s Licensed Site Professionals (LSPs) at 978-256-6766 or Info@OmniEG.com.
Do Your Due Diligence – The Importance of a Phase I Environmental Site Assessment
We recently came across a blog post on EDR’s commonground web site illustrating the importance of conducting a Phase I Environmental Site Assessment (Phase I ESA) as part of the due diligence process during a real estate transaction. The post describes a property owner that found out, long after purchase, their property was a potential source of a chlorinated solvent plume.
The blog post was written by Bill Wagner, an attorney at Taft Stettinius & Hollister LLP whose practice area includes environmental law. We’ve excerpted a portion of his blog post below.
“…Before purchasing the property in 1995, the buyers reviewed three reports (all prepared four years prior), including a Preliminary Site Assessment, a Subsurface Investigation Report, and a Preliminary Structural Evaluation. They also physically inspected the property, walked the streets, spoke with local business owners, and consulted with a financial consultant regarding the past use and history of the property. But, what they did not do was retain their own environmental professional to perform a Phase I ESA.
(EPA Photo/Kasia Broussalian)
A dry cleaning business called Miller’s Dry Cleaning had operated at the site from 1959 until 1971, but had a street address of 110 North Willis Street. During the construction of the commercial building at 520 North Main, the area known as 110 North Willis became part of the northern portion of 520 North Main. The plaintiffs’ expert said this fact was discernable by reviewing old Sanborn insurance maps. However, there was no evidence that M&M [the buyer] had ever looked at the Sanborn maps or otherwise knew of the presence of the dry cleaning business at 110 North Willis.
Dry cleaning businesses, like Miller’s Dry Cleaning, commonly used tetrachloroethylene (also referred to as perchloroethylene, perc, or PCE) in their operations. Old dry cleaning businesses are notorious for releases of PCE into the environment, often through no fault or intent of the business owners. Solvents like PCE are known to travel quickly to groundwater and migrate offsite…” Read More
In this case, PCE in ground water was discovered in the surrounding area by a state agency. One thing lead to another and our hapless property owner was identified as one of the sources of the PCE and was sued to help pay for the cleanup. Because they failed to perform their own Phase I ESA and instead relied upon four year old reports that they weren’t entitled to rely upon, the property owner, at best, had to defend themselves against a lawsuit, and, at worst, would be responsible for a potentially costly cleanup. Both outcomes could have been avoided with proper due diligence.
All too often we see property buyers who don’t want to perform a Phase I ESA. Or we see property buyers (and sometimes even lenders) perform the Phase I ESA merely to “check off a box” on the due diligence checklist and proceed with the purchase or loan in spite of potential issues identified during the Phase I process. The common reasons are that the due diligence process costs too much or it takes too much time. But as you can see from Bill Wagner’s blog post, the lack of adequate due diligence can be far more costly with the liability reaching back many years.
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