Massachusetts Information

1. How much of a difference has the presence of an Office of Brownfields Revitalization in the Governor's Office made in how the VCP is managed and perceived?

Answer: There are pros and cons.  This office has developed expertise and relationships.  Its impacts are based on "cajoling" and cooperation.  It helps keep everyone focused.  MassDEP is a very substantive, well-informed agency.  An entire Division with more than 350 employees is devoted to Waste Site Cleanup.  This staffing level has not been diminished as a result either of creating OBR or of privatizing the VCP through the use of Licensed Site Professionals (LSPs).

2. Is the extent of a cleanup conducted under the Attorney General's Covenant-Not-to-Sue program, where even a PRP may participate, normally greater than for a cleanup conducted by a non-contributory party under the normal VCP?

Answer: The extent of cleanup is the same under both.  The same tiered cleanup standards apply across the board. [Editor's note: The "Brownfields Covenant Not To Sue" applies to parties who are redeveloping contaminated properties and do not qualify for the statutory liability relief provided to eligible parties.  Priority for these covenants is given to projects in the 15 municipalities with the highest poverty rates, second to projects in other Economically Distressed Areas (EDA), and finally to sites in any other municipalities.  The project must contribute to economic or physical revitalization of the community in which it is located.]

3. What is Massachusetts' approach to liability reopeners?

Answer:  The Legislature has set a 20% audit target on response actions carried out by LSPs.  A response action can always be audited "for cause." "Outcome statements" must be provided within a 2-year window.  A response action can be reopened for any technical or substantive reason.  For example, a key basis for reopening is for a failure to comply with the standard of care for the industry at the time the cleanup was carried out.

4. How have Massachusetts' brownfields financial incentives and insurance programs been working?  What have been the most effective features?

Answer: Through December 2001 (after about 2 years of program operation), there have been about 430 new redevelopment projects under the VCP.  The Loan Fund ($30 million) has paid for 250 site assessments and about 30 cleanup loans.  The insurance program has assisted 45 projects (77 policies).  It has leveraged $608 million of private investment and $12 million in cleanups.  The secured creditor provision, which provides policies for the exact amount of private loans, has helped generate about $280 million in loans.  It has not been possible to quantify how many have taken advantage of the Tax Credit program.

5. Has the use of Licensed Site Professionals (LSPs) dramatically reduced the workload or increased the productivity of DEP staff?  Have there been any notable problems with this approach?

Answer: DEP still has 350 people in the waste site cleanup program.  (It's not clear how manpower freed up by the LSP program is being used.)  DEP has still not managed to meet their 20% audit goal.  (In addition to DEP audits, the LSP program is overseen by a private LSP Board.)  Although the total percentage of audits that have detected some issue with an LSP-supervised response plan is higher, those that have required "more work" (i.e., additional response action) represent "only 1%" of all audits carried out.

[Editor's note:  LSPs are technical experts licensed by the Commonwealth, overseen by The Licensed Site Professional Board, and with specific rules governing their conduct.  They are retained directly by project proponents to conduct the analysis of the environmental condition of a property, determine the appropriate approach to cleanup, oversee and implement the cleanup, and ensure compliance, on behalf of the proponent, with environmental laws.]

6. Does Massachusetts law require a comprehensive statewide inventory of brownfield sites?

Answer: There is no formal inventory requirement.  DEP does maintain a list of "release sites."  The Commonwealth is currently engaged in a joint effort with Harvard University to develop an inventory protocol that works with a GIS system to "layer" data sets.  This is known as the U-CIP Inventory (Underutilized Commercial and Industrial Properties.)  Massachusetts will contend that the combination of these two programs meets the intent of the inventory provision of the federal Brownfields Revitalization Act.

[Editor's note: The Governor's Brownfields office also administers "BF-Jump Start," an on-line real estate listing service for sellers of brownfields to market, and buyers of brownfield properties.  http://www.state.ma.us/massbrownfields/BF_Jump_Start.asp .]

7. What other special features of the existing program would you like to highlight?

Answer: Our Site Assessment Program.  Both municipalities and private parties participate.  Municipalities are exempt from liability, but must act diligently to divest themselves of contaminated properties they have acquired by foreclosure.  They may also have a duty to respond to imminent hazards during their time of ownership.

8. Are there additional desirable reforms you believe are coming or would like to see?

Answer:  None coming.  I would like to see money become available for aboveground asbestos removal and building demolition and to increase the incentives for historic building reuse.  Also to bring older buildings up to ADA and Code compliance (e.g., fire sprinklers).

9. Do you envision any problems in your State as a result of the new federal Brownfields Revitalization Act?

Answer:  The "windfall lien" provision is a disaster (because it destroys a lot of the incentive by private developers to reclaim and revitalize brownfield sites), but its impacts are limited by the fact that it will only affect sites that are already subject to CERCLA. [Editor's note: Under the BRA, to impose a windfall lien, EPA must establish that it has performed a response action, has not recovered its response costs, and that the response action increased the fair market value of the property over what it was before.  The windfall lien is measured by the increase in fair market value attributable to the response action at the time of a sale or other disposition of the property.  The lien continues until EPA has recovered all of its response costs.]

10. What cleanup standards apply under the VCP?   [Based on information on the MassDEP website: http://www.state.ma.us/dep/bwsc/files/bfhdout2.htm ]

Answer: Once a permanent cleanup or remedy operation status is achieved, an "eligible person" (an owner or operator who did not own or operate the site at the time of the release and who did not cause or contribute to the contamination of the site) is protected from Commonwealth claims for response action costs and natural resource damages and from claims by third parties for contribution, response action costs and property damage under Chapter 21E and property damage under common law.

The owner must clean up soil contamination within his property boundaries to DEP standards.  If the property includes the source of groundwater or surface water contamination, the owner must clean up the water-borne contamination to DEP standards.

The liability protection extends to subsequent property owners who maintain the site's clean status or the ongoing cleanup remedy.

An eligible person who starts a cleanup but transfers the property before the cleanup is completed, is protected from liability once a subsequent eligible person achieves a permanent solution or remedy operation status, as long as the initial eligible person complied fully with c. 21E and its regulations while he owned or operated the site.

To be cleaned up permanently, 21E sites need to attain a condition that poses no significant risk to health, safety, the environment, and public welfare.  Decisions about risks from the site must consider both current and future uses of the property and affected groundwater.  The Massachusetts Contingency Plan establishes rules for ensuring that groundwater cleanups meet this standard.  For example, in Potentially Productive Aquifers (PPAs), high and medium yield aquifers that are reasonably foreseeable sources of public drinking water, cleanups must restore groundwater to drinking water quality.  Certain areas, such as "heavily urbanized" land uses, are excluded from the PPA definition.

11. What cancer risk target level is reflected in Massachusetts cleanup standards? [Based on reference materials provided 6/10/02.]

Answer: When "Method 3" is used to characterize risks (case-by-case risk assessment), Massachusetts DEP uses a calculated Cumulative Receptor Cancer Risk limit of one-in-one hundred thousand (10^-4).  Anything above this is considered to be a significant risk.  Source: The 1993 Massachusetts Contingency Plan--Risk Characterization and Evaluation, How Clean is Clean Enough?, July 1995, p. 9.  The brochure goes on to explain: "This limit is very strict, especially since in the U.S. today the risk of an individual developing cancer is 1 in 4." (p. 9).

There are currently changes being proposed to the MCP Cleanup Standards, but it does not appear that any of these changes would alter this cancer risk limit.