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The MassDEP has proposed changes to the Massachusetts Contingency Plan (21E/MCP) that will impact the real estate community and the practice as LSPs. Changes include new notification and clean-up requirements for asbestos in soil. You may find the proposed changes on the MassDEP’s web page at http://www.mass.gov/dep/public/publiche.htm (6th listing). A public comment draft of the proposed changes was published by MassDEP in March and public hearings are scheduled for May. These changes are expected to become effective in late 2007.
The proposed rules are designed to:
Clarify asbestos in soil reporting under the MCP
Consolidate jurisdiction under the MassDEP’s Bureau of Waste Site Clean up (BWSC), rather than the Bureau of Waste Prevention (BWP)
Draw a distinction between asbestos abatement and asbestos remediation
Clarify assessment and clean up of subsurface asbestos issues
Implement a “Special Waste” exemption for disposal of soil containing asbestos debris and fibers
Establish better awareness of Regulatory Rules and Best Management Practices at asbestos disposal in soil
Reallocate DEP resources under the privatized Licensed Site Professional (LSP) Program
 Several new MCP definitions have been proposed, MassDEP notification has been expanded, new risk based clean-up requirements for asbestos have been introduced and new disposal options have been created. These changes will also indirectly impact the ASTM property transaction site assessment process conducted at Massachusetts sites because asbestos in soil will now be reportable under the MCP and should be considered to be a recognized environmental condition of concern.
New Definitions:
The MassDEP’s objective under the new rules is to manage the potential release of asbestos to ambient air from sites where the uncontrolled disposal of asbestos containing debris may have occurred. MassDEP is not proposing to manage individual fibers of asbestos or intact asbestos containing structures such as pipes, boilers or duct banks. MassDEP is focused on debris containing releasable asbestos, which has been defined as any material greater than 3 inches or more in diameter that contains 1 % or more of asbestos and can be or can be crumbled, pulverized or reduced to a powder by hand pressure or has become crumbled, broken or crushed. The releasable asbestos term follows the NESHAP’s existing definitions for friable and nonfriable asbestos and does not include glue, mastic or adhesives.
New DEP Notifications:
Notification under the MCP is triggered by 2-hour and 120-day criteria. Two-hour notification would be triggered by conditions that pose or could pose an “Imminent Hazard” by a sudden release of more than 1-pound of asbestos or the presence of 5-cubic feet or 5-pounds debris containing releasable asbestos at the ground surface within 500-feet of an occupied building, playground, recreation area or park. 120-day criteria includes the presence of either 1 pound or 1 cubic foot of debris containing releasable asbestos in the ground at any depth
21E/MCP Exemptions:
A couple of exemptions from 21E & the MCP have been proposed. Releases of asbestos from abandoned and substantially intact structures such as pipes, boilers and duct banks will still require proper management under BWP and notification to the BWSC will not be required. If these structures are intact, they may be left in place. If damaged, standard 10-day notification to BWP and closure is required if not an already an MCP disposal site.. Also, unconsolidated fibers of asbestos in soil, provided the source of the fibers is not known, will not require notification to either BWP or BWSC.
Site Assessment Changes:
The proposed asbestos in soil changes will impact on the conventional due diligence environmental site assessment process conducted during real estate transactions. Assessors following ASTM standards of practice will continue to pursue the same four components of:
Records review
Site reconnaissance
Interviews
Reporting
However, analysis of historical facts and site features will need to be expanded. Asbestos in soil will be considered a recognized environmental condition of concern, if historical information suggests that older buildings once existed at the site or that buildings were demolished without record of pre-demolition asbestos abatement or proper disposal of debris, along with the presence of fill areas or other indications of possible on-site disposal.
Appendix X1.6.4.5 of ASTM E1527 states that asbestos that is part of a structure is excluded from CERCLA and therefore is considered to be a “non scope consideration” under the ASTM practice. However, if asbestos is disposed of in the ground and is no longer a part of the structure of a building, the clean up of the disposed asbestos can be subject to Superfund. As a result, the presence of any type of refuse dump or historic land use that suggests a fill area potentially containing asbestos or construction debris will be considered a recognized environmental condition of concern and will warrant additional investigation, and possibly Phase II (subsurface) investigations. The EPA’s
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new “All Appropriate Inquiry” regulation also introduces new considerations for the assessor’s credentials, as well as the limits of inquiry required to protect against CERCLA liability. The newer version of the ASTM assessment standards, ASTM Standard 1527-05, addresses many, but not all items, and some organizations have developed new compliance requirements, while others have not.
but not all items, and some clients have developed new compliance requirements, while others have not.
Subsurface investigations need to be planned a bit differently. A standard split spoon sampler and the smaller GeoProbe samplers will not capture the minimum 3 –inch diameter debris that notification is to be based upon. This means that large diameter augers or test pitting will be required to adequately assess the subsurface for possible exceedance of the 120 day notification trigger. While historical records will be important indicators of the need to conduct subsurface investigations, the only conclusive way to evaluate notification requirements will be to collect samples and conduct appropriate inspections by a person qualified to identify asbestos containing material in the ground, along with lab confirmation.
Off-Site Soil Management:
The MassDEP currently defines soil containing any quantity of asbestos (a few exemptions such as VAT, shingles and siding etc. do apply) as a “Special Waste” under the Solid Waste Regulations. However, additional provisions have been proposed which would allow soil with asbestos containing materials present, at a concentration of less than 150 mg(acm)/kg(soil) of asbestos containing materials. and/or soil containing unconsolidated fibers of asbestos, to be accepted at in-state Massachusetts landfills as solid waste or reused under the MCP antidegradation provisions. A new test method, refered to as the MassDEP Sieve Method, is being proposed to determine the concentration, but the test method has not been made available for public comment. Soil containing 150 to 1,000 mg(acm)/kg(soil) is proposed for use at landfills for alternative daily cover and soil containing 1,000 to 8,000 mg(acm)/kg(soil) is proposed for use for grading and shaping. Soil with more that 8,000 mg(acm)/kg(soil) will continue to require management as a Special Waste.
 MassDEP Policy # Comm 97-001 – Reuse and Disposal of Contaminated Soil at Massachusetts Landfills is to be revised to enable this reuse of soil impacted by asbestos containing material as daily cover and grading or shaping materials. As a result, asbestos is likely to be added to pre-disposal soil characterization procedures currently followed at sites where soil is going to be removed from the site for off site disposal.
Site Closure and RAOs:
Notification under the MCP is proposed to be triggered by the presence of debris containing asbestos in soil that could be released to the air causing an inhalation exposure and unacceptable risk. Debris containing releasable asbestos has been defined in the proposed rule changes as a “source of asbestos to ambient air”. In order to demonstrate a ”Permanent Solution” under the MCP, it will be necessary to eliminate or control this source. Control may be accomplished by removing the material from the site or by installing a barrier along with application of an “Activity and Use Limitation”. No Method 1 or 2 standards have been proposed, therefore, it will be necessary to use a Method 3 Risk Characterization to establish a “how clean is clean enough” decisions. The presence of unreportable amounts of asbestos containing debris in soil at disposal sites with releases of other oil and hazardous could also require a Method 3 Risk characterization. EPA has developed an Elutriator or Tumbler Method and it has been suggested as a proposed method for developing analytical data to support a risk based site closure and to demonstrate that a permanent solution exists at a site. Additionally, if 1 pound or 1 cubic foot of Debris Containing Releasable Asbestos is present in accessible soil (top 3 feet, without paving) within 1 foot of the surface will be considered to be a source of asbestos to ambient air under 310 CMR 40.1003(5) and a Class A or B RAO can not be achieved.
What to Look For:
MassDEP is working with a diverse group of stakeholders to refine the proposed program so that it may be implemented in a consistent and practical fashion. Changes are expected to occur as the program is implemented, so keep a watchful eye for:
June 21, 2007 monthly LSPA membership meeting will cover the new regulations, the proposed training program and asbestos related business considerations
Promulgation - Summer 2007
Implementation may be delayed to late 2007 or early 2008
LSPA sponsored training - Fall of 2007
LSPA White Paper – Fall 2007
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