===== Wednesday, 12 August 2020 13:14

MassDEP and EPA Guidance on Waste Site Cleanups and Compliance during COVID-19 Emergency: Some Flexibility but Important Deadlines and On-Site Obligations Still Apply Featured

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During the COVID-19 declared State of Emergency in Massachusetts, the state’s reporting, testing, cleanup, compliance, enforcement and other matters under the Massachusetts Oil and Hazardous Material Release Prevention and Response Act (G.L. c.21E) have been the subject of MassDEP Bureau of Waste Site Cleanup (BWSC) guidance documents. These guidelines are said to prioritize the health and safety of the public, agency staff, and cleanup parties.

Earlier Executive Orders of Governor Baker set deadlines tied to the end of the State of Emergency. However, with the release of Governor Baker’s July 22, 2020 Executive Order, response actions must continue before there is a formal end to the State of Emergency.

On April 7, 2020, the MassDEP released a Fact Sheet on how to continue waste site cleanup operations and comply with the Massachusetts Contingency Plan (MCP). It was entitled “Guidance on Continuity of MassDEP Waste Site Cleanup Operations and MCP Compliance during COVID-19 State of Emergency.” It addressed IRAs, MCP Response Action deadlines, enforcement actions, AEPMMs, and securing disposal sites among other topics.

More recently, on July 22, 2020 MassDEP updated this guidance after the release of Governor Baker’s most recent Executive Order.

The BWSC Advisory Committee within MassDEP hosted meetings to address the Fact Sheet and updated guidance. BWSC Assistant Commissioner Paul Locke discussed how MassDEP is handling the situation and hopes the Potentially Responsible Parties (PRPs) and Licensed Site Professionals (LSPs) will handle it.

Several primary points emphasized during the Advisory Committee meetings included:

  • The primary focus should be on balancing risks at emergency and imminent hazard situations with COVID-19 risks.
  • MassDEP will “be compassionate” regarding slipped deadlines and other delays in routine work.
  • Written notices of delay should be submitted to MassDEP through eDEP using transmittal form BWSC121: Notification of Delay.
  • As of the July 22, 2020 update, BWSC expects that Routine Submittals will be made on or before the deadline.
  • BWSC now expects persons who submitted a Notification of Delay to resume work necessary to meet the missed deadlines.
  • If response actions cannot be conducted safely because of the COVID-19 State of Emergency, persons conducting response actions are encouraged to consult with MassDEP regional offices to discuss and develop an appropriate approach.

BWSC continues to maintain field deployment of emergency response staff. Non-emergency staff are teleworking and responding to email and voicemail. MassDEP expects that persons required to notify if a release occurs to continue to make all 2-hour, 72-hour, and 120-day release notifications during the State of Emergency.

Emergency Response staff of MassDEP will continue to respond to verbal notifications for IRAs and review written IRA plans. Verbal reporting and oral approvals allow LSPs and MassDEP staff to discuss the IRAs and any potential COVID-19 related concerns for response staff or other individuals. This includes any concerns that may affect the nature and/or timing of necessary activities.

As to written IRA plans submitted while the State of Emergency is in effect, if the BWSC elects not to issue an approval, conditional approval or denial within 21 days, an IRA plan is considered approved as submitted. MassDEP recommends following-up via email with the Regional Emergency Response Section Chief or staff lead for the IRA to notify them the IRA plan has been submitted.

Those conducting response actions under the MCP should “to the extent practical” continue to make response action submittals that are not otherwise addressed in the April 7, 2020 guidance. The electronic document service, eDEP, should be utilized when making response action submittals.

MassDEP understands that delays are inevitable due to postponed field work, reduced staffing, and other interruptions. However, parties who expect delays should notify MassDEP of same in writing, and should include the deadline(s) that will be missed and any measures taken to secure the disposal site during the period of work stoppage, if applicable.

Written notices of delay should be submitted through eDEP using transmittal form BWSC121: Notification of Delay. Included with the notification should be a list of deadlines expected to be missed, and a schedule as to when these deadlines will be met.

As of the July 22, 2020, order BWSC expects persons who submitted Notices of Delay to resume work necessary to meet the missed deadlines. MassDEP will be contacting those who submitted a Notice of Delay in writing to affirm the schedule of returning to compliance.

Please note that the BWSC intends to exercise enforcement discretion for failure to meet deadlines for Routine Submittals during the State of Emergency.

Other questions relating to operations subject to the MCP may be answered here: https://www.mass.gov/info-details/mcp-qa-covid-19-edition

In addition to the guidance discussed above, the BWSC issued guidance on the primary focus at cleanup sites. The BWSC Advisory Committee suggests the primary focus at cleanup sites should be balancing the risk of emergency and imminent hazard situations with the risks of COVID-19.

For instance, Active Remedial Systems with air or surface water discharges should be monitored in compliance with permitting or regulatory requirements, to the extent circumstances allow. However, consideration should be given to the suspension of operations if circumstances do not allow for adequate monitoring ensuring that any discharge does not result in adverse impacts – unless such termination would cause an imminent hazard.

All Active Exposure Pathway Mitigation Measures (AEPMMs), addressing vapor intrusion into buildings or a private drinking water supplies, are expected to be operated. AEPMMs addressing Imminent Hazards (IH) conditions should continue to be monitored for effectiveness. Again, consideration needs to be made in minimalizing COVID-19 exposure for response staff or building occupants. Monitoring that entails home or business entry when there is an absence of a potential IH condition should be suspended during the State of Emergency.

Speaking of on-site safety and health considerations, on April 10, 2020, the U.S EPA issued its own “Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19.” That guidance dictates that decision-making as to continuing on-site cleanup activities shall continue case-by-case with the following taking precedence:

  • Protecting the health and safety of the public, and maintaining health and safety of EPA staff and cleanup partners as the highest priority. Integral is adherence to any federal, state, tribal, or local health declarations and restrictions, to the extent possible.
  • Maintaining EPA’s ability to prevent and respond to environmental emergencies or in any situation necessary to protect the public health and welfare and the environment.

The Massachusetts State of Emergency is still in effect as of this writing. It is vital to check in with MassDEP and the EPA for any changes or updates to these guidelines. Further, it is important for improvements to be made in standardized practices and communication systems so they do reflect these temporary measures and any revisions to them if the State of Emergency is extended.

Last modified on Wednesday, 12 August 2020 13:23
Benjamin J. Hyland

Contributing author Benjamin J. Hyland is currently a law intern at McGregor & Legere PC and is a J.D. Candidate 2022 at Suffolk University Law School.