Recent Comments Received on Reg Reform, PCE Toxicity

MassDEP has received comments on the proposed Regulatory Reform initiatives and on the recently released EPA IRIS toxicity values for tetrachloroethylene.  These comments are available on the blog, as comments to the PCE Toxicity Review post and the March SAC Meeting post.

The Department appreciates the thought and effort that went into the comments and strongly encourages all stakeholders to review the material posted on these issues and contribute your thoughts, suggestions, comments and reactions as well.

STRAWMAN PROPOSAL: MCP Closures – Temporary & Permanent Solutions

The proposal below (MS Word or PDF download) outlines possible changes to the MCP that are being considered. This is a “strawman” proposal, intended to stimulate discussion and generate creative ideas – as discussed at the March 22, 2012 Advisory Committee meeting (audio, PowerPoint). The proposal is not a commitment to any specific concept. MassDEP is currently developing draft regulations loosely based on the concepts described below. Any comments – the earlier the better – are welcome.  Please post them to the MassDEP Reg Reform blog below (“Leave a Comment”) or email to Paul.Locke@state.ma.us.  There will be a formal public comment period where additional comments will be solicited.

Download:

• STRAWMAN-VI-2012-03-27-v5.2 (MS Word, 53KB)
• STRAWMAN-VI-2012-03-27-v5.2 (PDF, 432 KB)

March 22, 2012 Advisory Committee Meeting

The presentations and audio from the March 22, 2012 MassDEP Waste Site Cleanup Advisory Committee meeting are now available.

Presentations:

• PowerPoint version: 3_22_12SAC_reg_reform
• PDF version:  3_22_12SAC_reg_reform

Audio:

• Link to Archive.org - http://www.archive.org/details/MassdepWasteSiteCleanupAdvisoryCommitteeMeeting-March222012

Comments on the Reg Reform Proposals are welcome, preferably through the “Leave a Comment” link below so everyone benefits from your insights.

NRS/Tier Classification/Permit “Strawman” Proposal

A CONCEPTUAL overview of possible changes to the NRS, Tier Classification and Permits, based on the discussions to date. Please keep in mind that this is for discussion purposes ONLY and does not represent a final regulatory proposal. This material will be discussed at the March 22, 2012 Waste Site Cleanup Advisory Committee meeting.

• 2012-03-20_Conceptual-Changes_NRS-TC-P (MS Word, 29 KB)
• 2012-03-20_Conceptual-Changes_NRS-TC-P (PDF, 321 KB)

PCE Toxicity Value Review

On February 10, 2012, U.S. EPA published a final Health Assessment for Tetrachloroethylene (Perchloroethylene, or “Perc” or PCE) on the IRIS database (http://cfpub.epa.gov/ncea/iris/index.cfm?fuseaction=iris.showQuickView&substance_nmbr=0106). In the new Health Assessment, EPA provides revised toxicity values for oral exposures (a reference dose [RfD] for non-cancer and a cancer slope factor [CSF] for cancer risk) and for inhalation exposures (a reference concentration [RfC]for non-cancer and an inhalation unit risk factor [URF] for cancer).

Several years ago, while EPA’s Health Assessment was still in progress, assessment of tetracholorethylene in indoor air arose as a critical issue for a number of MCP sites.  The Bureau of Waste Site Cleanup (BWSC) requested that the Office of Research and Standards (ORS) review the inhalation unit risk factor (URF, for evaluating cancer risk from exposure to air contaminants) in use at the time.  ORS toxicologists conducted the review of the scientific literature available at the time, obtained a peer-review of the ORS assessment, and published a revised inhalation unit risk value in 2008 (http://www.mass.gov/dep/toxics/chemrs.htm).

In addition to the URF published in 2008, ORS has recently reviewed and updated the RfC used to calculate MassDEP’s Threshold Effects Limits (non-cancer) for tetrachloroethylene (http://www.mass.gov/dep/toxics/stypes/telaal.htm).  This review considered all of the toxicological data currently available.

Some of the toxicity values published in EPA’s Health Assessment differ significantly from those developed by MassDEP.  ORS plans to review the basis for the values provided by EPA before adopting final values.  MassDEP expects to complete the review by the end of March. Until then, MassDEP recommends the continued use of the MassDEP cancer slope factor of 5 x 10^-2 (mg/kg/day)^-1 and the inhalation unit risk of 1 x 10^-5 (µg/m³)^-1 for site-specific risk assessments conducted under the Massachusetts Contingency Plan (310 CMR 40.0000).

Any questions may be directed to BWSC.Information@state.ma.us.

AUL Discussion Summary

A summary of the February 9, 2012 discussion about revisions related to Activity and Use Limitations (AULs) is now available. These are notes from the discussion and not MassDEP’s interpretation. For those who participated in the conversation, please read the notes and comment on anything we may have missed or misinterpreted. For those who missed the meeting, this is a great chance to add your voice to the discussion! Either way, please use the comment block below so that the wider community can benefit from your thoughts & observations.

MS Word version: AUL_Discussion_Notes_2011-02-09 (26 KB)

Adobe PDF version: AUL_Discussion_Notes_2011-02-09 (283 KB)

Vapor Intrusion Discussion Summary

A summary of the February 9, 2012 discussion about revisions related to the Vapor Intrusion pathway is now available. These are notes from the discussion and not MassDEP’s interpretation. For those who participated in the conversation, please read the notes and comment on anything we may have missed or misinterpreted. For those who missed the meeting, this is a great chance to add your voice to the discussion! Either way, please use the comment block below so that the wider community can benefit from your thoughts & observations.

MS Word version: VI-Discussion-2012-02-09-notes (63 KB)

Adobe PDF version: VI-Discussion-2012-02-09-notes (373 KB)

LNAPL Meeting Agenda

LNAPL Reg Reform Discussion
February 16, 2012
1:00  – 3:00 am
MassDEP, One Winter Street, Boston, 2^nd Floor

AGENDA

 1:00        Welcome and Introductions
1:10        Background on LNAPL MCP issues and regulatory/policy discussions to date
1:30        The definition, meaning and purpose of an Upper Concentration Limit (UCL)
2:00        Discussion of Regulatory provisions which better address LNAPL UCL concerns?

 Background

Under the provisions of 310 CMR 40.0996, “the presence of non-aqueous phase liquids (NAPL) having a thickness equal to or greater than ½ inch in any environmental medium is considered to be a level which exceeds Upper Concentration Limits (UCLs)” and hence which prohibits the attainment of a Permanent Solution.  In addition, 310 CMR 40.0006 states this thickness is “as a continuous separate phase as measured in a groundwater monitoring well or otherwise observed in the environment.”

As articulated in earlier MassDEP guidance, (Characterizing Risks Posed by Petroleum Contaminated Sites: Implementation of the MADEP VPH/EPH Approach; 2002):

The occurrence, detection and migration of non-aqueous phase liquids in the subsurface are a complex phenomenon.  Many investigators have attempted to develop theoretical and/or empirical methods to correlate the apparent thickness of NAPL, as measured in a monitoring well, to the actual thickness of that NAPL in the surrounding formation……..Unfortunately, none of the methods or approaches presented to date appears to be sufficiently reliable or reproducible at field sites, especially when significant fluctuations occur in the elevation of the groundwater table

Since 2002, improved LNAPL assessment techniques based on the fundamental principles of multi-phase fluid flow in porous media (FFPM, used for decades in the oil industry) have been developed and applied over the last several years to environmental applications.  A number of states and regulatory authorities, including MassDEP, have formed workgroups and are developing guidelines based on FFPM concepts to more accurately describe the nature, extent and behavior of LNAPL in the subsurface formation.  These efforts have considered similar works from Texas, Alaska, British Columbia, API, ITRC, U.S.EPA, and ASTM, among others.

Integrating these improved LNAPL assessment techniques into the overall MCP regulatory framework has proven to be a challenging task involving disparate and often conflicting opinions and approaches from among MassDEP’s LNAPL Workgroup.  However, consensus has emerged around the following:

• The current MCP criterion of ½ inch of LNAPL is not an ideal metric for assessing compliance with a UCL and, in some cases, may be a barrier for sites’ otherwise meeting the requirements for a Permanent Solution.
• The application of the fundamental principles of multi-phase fluid flow in porous media (FFPM) has been overwhelmingly accepted by the scientific and regulatory communities throughout north America, and it is clearly consistent with the Response Action Performance Standard 310 CMR 40.0191(2)(b) “use of accurate and up-to-date methods, standards and practices, equipment and technologies which are appropriate, available and generally accepted by the professional and trade communities conducting response actions…”

---

Questions?:  Ken Marra, kendall.marra@state.ma.us, (617) 292-5966

Permits/TC/NRS Discussion Summary

A summary of the February 8, 2012 discussion about revisions to the Permits, Tier Classification and Numerical Ranking System sections of the MCP is now available. These are notes from the discussion and not MassDEP’s interpretation. For those who participated in the conversation, please read the notes and comment on anything we may have missed or misinterpreted. For those who missed the meeting, this is a great chance to add your voice to the discussion! Either way, please use the comment block below so that the wider community can benefit from your thoughts & observations.

MS Word version: February 8 2012 TC Discussion

Adobe PDF version: February 8 2012 TC discussion

AUL Proposal Discussion

Here is a general guide for the Thursday, February 9th discussion of AUL Regulatory Reform topics. MassDEP is eager for your feedback on these topics – for each of the MassDEP proposals listed we ask that you think about… whether you agree or disagree with the proposal and whether you have any particular concerns or additional considerations that we should be aware of/do more thinking about as work on moving forward with developing the proposal.

In addition, we hope you will bring your AUL-regulatory related proposals to the meeting and/or consider providing comments on the MCP Regulatory Reform Blog (in the comment/reply section below) that we have set up to facilitate comments and discussion during this process.

Hope to see you Thursday!  Liz

---

AGENDA

 

9:30     Welcome and Introductions

9:40     Discussion of AUL Streamlining proposals:

                        Proposals MassDEP has identified to date -

-          Eliminate AUL Opinion  

MassDEP is considering eliminating the AUL Opinion because it is largely redundant of the information provided in Form 1075.  Eliminating the Opinion would also eliminate the need for the BWSC113A transmittal form.  In eliminating the AUL Opinion, we anticipate providing an additional bracket in the Form 1075 for some limited site-specific narrative about the nature of the release/contamination, the affected media and need for the AUL.  This regulatory proposal would include adding a provision that specifies the information to be included in this limited narrative.

-          Provide documentation to MassDEP confirming that the requirement to incorporate the AUL into future deeds (in full or by reference) has been completed.

Failure to meet this requirement is a common AUL violation and consumes auditing resources to identify the violation and then confirm its correction.  In addition, reliable compliance with this requirement would provide MassDEP with current property ownership information (BWSC’s recent AUL Compliance Letter project required tracking down almost ¼ of the current property owner’s contact information).

 -          Create on‐line form to update current owner contact information (related to the issue above).   This would not be a regulatory proposal, necessarily; could be a voluntary eDEP form.

-          Eliminate Exhibit A – legal description of property boundary

This legal description is already available on the deed.  Do you foresee any issues with this proposal?

-          Revise Amendment form (1082B)

The current amendment form does not address all possible amendments to the AUL, so it needs to be modified to provide for other common amendments (adding an RTN, adding or correcting an exhibit, getting the AUL back into the chain of title if it wasn’t referenced on the new deed). MassDEP would also like the amendment to restate the consistent/inconsistent uses that remain in effect (along with those being amended); currently one has to refer to both the original AUL and the amendment for the full list of consistent/inconsistent uses.  This is confusing and cumbersome.

-          Other form-related revisions

1. Provide drop down list of common consistent/inconsistent uses – we are considering developing standardized descriptions of common inconsistent and consistent uses and obligations and conditions (while retaining an “other” option for parties to use their own descriptions)
2. Use transmittal form information to create web abstract of information – to improve public AUL accessibility and understanding of AUL information.  We would use inputs into eDEP transmittal form to create such an abstract that would describe why the AUL is needed and consistent/inconsistent uses, etc.; the abstract would appear when one held the cursor over the map of locations with AULs.

Proposals identified in Public Comments to MassDEP

 -          Involve real estate conveyance professionals in the development of revised forms – It has been suggested that the AULs could be made more similar to other real estate instruments and we should involve outside professionals in review of the forms.  We invite suggestions on how to get this type of review.

 -          Requirement to notify record interest holders 30 days prior to recording – While this notice period has been previously amended from 45 – 30 days, MassDEP continues to get comments that it presents difficulties.  We would like to hear examples of the problems encountered with this notice.

10:30/10:45     New/Other Proposals?

We would like to use this portion of the meeting to hear any other AUL Streamlining suggestions.  What aspect(s) of AULs regulations or filing process do you find difficult, unnecessarily complicated, etc.?  Is it an aspect that is under MassDEP’s control (i.e., related to an MCP requirement and not related to a Registry requirement)?  Do you have a suggestion on how we might address this issue?