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An MCP Change Spotlight: Historic Urban Fill

By Steve Iorio, Project Manager

Significant changes to the Massachusetts Contingency Plan (310 CMR 40.0000), the MassDEP’s governing regulatory framework regarding the assessment and remediation of spills and releases of oil and/or hazardous materials, were promulgated on April 24, 2014 for the first time in nearly 8 years.  Among these changes include amendments related to the Tier Classification process, site closure Vapor Intrusion, NAPL, AULs, etc.  Amendments to the MCP also include changes in how the MassDEP governs one of the most common characteristics of historic industrial sites, ‘Urban Fill Materials’.

Since its promulgation in 1993, the MCP has recognized that concentrations of contaminants in soil that are consistent with ‘Background’ conditions should not require notification or remediation.  Background was then defined to pertain to “levels of oil and hazardous material that would exist in the absence of the disposal site of concern which are either (a) ubiquitous and consistently present in the environment at and in the vicinity of the disposal site in concern: and attributable to geologic or ecological conditions, or atmospheric deposition of industrial process or engine emissions; (b) attributable to coal ash or wood ash associated with fill material; (c) releases to groundwater from a public water supply system; or (d) petroleum residues that are incidental to the normal operation of motor vehicles.”  However, previously, there was no specific definition provided for ‘urban fill’ or ‘fill materials’.  Fill Material was oftentimes not governed under the definition of ‘Background’ and thus required considerable assessment and remediation to achieve a Permanent Solution.  Even if levels of PAHs or Metals present in soils were proven to be attributable to historic fill materials, significant assessment was required to prove that concentrations of these contaminants did not represent a substantial risk to humans or to the environment.

An MCP Change Spotlight:The recent Amendments to the MCP have provided a very specific definition for Historic Fill Materials.  According to the MCP, “Fill Materials” (that) “based on the weight of evidence and consistent with the Conceptual Site Model (a) was emplaced before January 1, 1983; (b) may contain, but is not primarily composed of, construction and demolition debris, reworked soils, dredged spoils, coal ash, wood ash or other solid waste material; (c) was contaminated with metals, hydrocarbons, and/or polycyclic aromatic hydrocarbons prior to emplacement, at concentrations consistent with the pervasive use and release of such materials prior to 1983; (d) does not contain oil or hazardous materials originating from operations or activities at the location of emplacement; (e) is not and does not contain a generated hazardous waste, other than Oil or Waste Oil; (f) does not contain chemical production waste, manufacturing waste, or waste from processing of metal or mineral ores, residues, slag or tailings; and (g) does not contain waste material disposed in a municipal solid waste dump, burning dump, landfill, waste lagoon or other waste disposal location.”  Effectively, the MCP changes allow for sites with Historic Fill Materials that were previously identified as Disposal Sites to not necessarily require reporting or remediation moving forward if they meet the aforementioned criteria.  However, this definition appears to place a burden upon the consultant to prove the presence of these fill materials based upon site historic information, which is oftentimes difficult to find or not available at all.

The recent MCP Amendments clearly walk a fine line between recognizing that cleanup of properties contaminated with ‘Historic Fill Materials’ should not necessarily be required, and yet at the same time, may pose a current or future risk to future or current residents of a given property.  Therefore, properties with certain levels of contaminants in Historic Fill Materials may be closed out with a condition that provides notice of their presence to current and future Site inhabitants.

MassDEP (Massachusetts Department of Environmental Protection) May 2002. “Technical Update-Background Levels of Polycyclic Aromatic Hydrocarbons and Metals in Soil.”

MassDEP (Massachusetts Department of Environmental Protection) April 2006. “Massachusetts Contingency Plan, 310 CMR 40.0000, (and related Guidance Documents).”

MassDEP (Massachusetts Department of Environmental Protection) April 2014. “Final Amendments to the Massachusetts Contingency Plan, 310 CMR 40.0000.”

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