A February 23 article in The Boston Globe gives the impression that the development community encouraged the Massachusetts Department of Environmental Protection (MassDEP) to reduce standards for site cleanups to allow for faster approvals for developers. On the contrary, no part of the commercial real estate community either initiated or encouraged a review of the lengthy list of cleanup standards. The regulatory changes that are about to be released are a part of an agency-wide review, made all the more important by the need for this agency to be more efficient, given its limited resources.
In 1983, the legislature established an oil and hazardous waste cleanup program, Chapter 21E, formalizing the process for MassDEP to manage disposal sites. But with too few cleanups, unclear rules, delays in Department approvals, and insufficient resources, the cleanup process for contaminated sites quickly bogged down. In response to this situation, the legislature overhauled Chapter 21E and the promulgation of regulations under the Massachusetts Contingency Plan (MCP) in 1993 created a new privatized, risk-based program. It eliminated the MassDEP backlog and allowed the Department to focus on the most complex sites. Within the first two years of the program’s implementation, there were more than 3,200 permanent site cleanups. The success of this program made it a national model.
The MCP requires contamination to be cleaned up to a level that protects people and the environment, taking into account both the present and future use of the site. MassDEP developed conservative, detailed, contaminant-specific lists of both reportable concentrations and cleanup standards, based on the toxicity and mobility of the contaminants involved. Risk characterizations are used to determine whether detected contaminants pose a threat to human health or the environment and whether further comprehensive response actions are required.
The recent changes to these standards include some values that were increased, but also others that were decreased. Each change was based on the latest scientific literature. If MassDEP establishes a value based on science, does it not have the responsibility to adjust it either up or down, as the availability of new data dictates?
Massachusetts residents and businesses can and should continue to rely on a proven and protective program based on legitimate technical considerations. Emotional criticisms of every change in these standards are not conducive to the objective, science-based decision-making that has allowed Massachusetts to achieve a stellar track record in the successful transformation of blighted, contaminated sites into safe and productive community assets.
NAIOP Policy and Trends Watch 