The following LSPA practice tip was introduced at the September 2024 Membership Meeting, which was held in-person on September 12, 2024 at the Doubletree Hotel in Westborough, MA.  

Practice Tip of the Month

Northeast Sustainable Communities Workshop

Join us at the 2023 Northeast Sustainable Communities Workshop (NSCW) in Worcester, MA, on September 19-20. The theme, “Reimagining Brownfields: Strategies for Successful Redevelopment,” brings together environmental experts, consultants, developers, attorneys, academics, and real estate professionals for impactful sessions.

Discover innovative strategies for successful brownfield redevelopment, connect with industry leaders, and explore commercial real estate incentives throughout the Northeast. NSCW breaks away from traditional PowerPoint-heavy presentations to provide ample opportunities for sharing experiences and success stories and connecting with colleagues.

New Legislative Session Begins

The General Court of the Commonwealth of Massachusetts, aka the Massachusetts State Legislature, began a new two-year session in early 2023. Committee leadership has been appointed, and hearings have begun. The LSPA recently submitted two letters of written testimony.

We wrote a letter of support for S. 1765 and H. 2913 “An Act to extend the Brownfields tax credit” to the Joint Committee on Revenue.  These two identical bills propose to extend the Massachusetts Brownfields Tax Credit program for five years, thereby ensuring liability relief and financial incentives to clean up and redevelop contaminated properties. 

Notes from BWSC Advisory Committee

MassDEP’s Bureau of Waste Site Cleanup Advisory Committee met on October 27, 2022 for several hours. Typically, MassDEP posts the slides and recordings of Advisory Committee meetings here. At this time, these have not yet been posted.

A brief summary of meeting highlights is provided below.

• Scope of Review on Appeal – For partial appeals, DOR will review only the denied portion of an application; the approved portion of an application will only be reviewed if there was a material misrepresentation or omission.
• Denial Explanation – DOR will provide an explanation for each credit denial.
• Asbestos Eligibility – DOR will deem asbestos removal costs to be generally eligible as long as the soil immediately under the building is contaminated and the building’s demolition was required in order to achieve a permanent solution.
• Multiple Releases – For purposes of determining whether an applicant’s costs equal or exceed 15% of the assessed value of the property (as is required to become eligible for the credit), an applicant may aggregate net response and removal costs over a 3-year period when there are multiple contaminated sites on one property.
• Effective Date of Regulation – By its terms, the regulation will go into effect when it is made public on July 9, 2021.

• Intake Timeline – When an application is submitted, DOR will contact the applicant within 30 days to notify them of which examiner has been assigned to the case and to outline the application review process.
• Intake Narrative – To accelerate DOR’s initial review, applicants will be directed to provide a narrative explaining why submitted costs are eligible.
• Review Process Updates – Applicants will receive a status update from the examiner assigned to their case every 60 days.
• Expedited Timeline – An expedited process will be established for lower-dollar, less complex BTC projects¾those worth $250K or less. Such applicants will be contacted within 7 days and will receive updates every 30 days.
• Appeals Timeline – DOR has established a timeframe for the processing of appeals. The stages of the process are as follows:
1. Appeal is initiated. This occurs when the Office of Appeals receives the appeal.
2. Initial Scheduling Letter sent. Within 30 days of Stage 1.
3. Complete Appeal filed by Applicant. Within 60 days of Stage 1.
4. Opening Conference held. Within 90 days of Stage 1.
5. Information and Document Requests (IDRs) issued and answered. These are to be issued by the Appeals Officer within 60 days of the Opening Conference (Stage 4) and are to be answered by the Applicant within 30 days after they were issued.
6. Formal Scheduling Letter sent (if no settlement has been reached). Within 60 days after all IDRs have been answered.
7. Formal Hearing held. No later than 60 days after the Formal Scheduling Letter has been issued.
8. Formal Letter of Determination issued. 60 days after the Formal Hearing. If the appeal is complex, this stage may be extended by an additional 90 days.

• Staffing – DOR will hire a dedicated environmental engineer and is also hiring and training 3 additional audit staff members.

• Revisit Regulation in 2 Years – DOR will solicit stakeholder feedback on the regulation two years from the date of final promulgation.

Members of the LSPA Regulations Committee sat in on this meeting (see the recording here) and present the following takeaways, in no particular order.

• 2019 MCP Revisions. The MCP amendments continue to be edited and revised in response to comments. Once finalized, which is expected to be “later this spring,” they will go into effect (with a grace period), and MassDEP will provide training and updated risk guidance.

• PFAS Testing of Public Water Supplies. MassDEP is providing funding to public water supplies for their first round of required PFAS testing. Testing is underway, and data are updated weekly on the MassDEP PFAS page at https://eeaonline.eea.state.ma.us/portal#!/search/drinking-water.

• Private Well Sampling and IH Level of 90 ppt.  MassDEP is communicating with local Boards of Health and private well owners in ~80 towns that rely primarily on private water sources. MassDEP is aiming to collect data from both private wells near potential (known) PFAS sources and wells randomly located, as an approach to gaining a better understanding of background levels of PFAS in groundwater. If PFAS is detected in a residential well, a homeowner will not be required to notify MassDEP; in the absence of an identified on-site source, MassDEP will assume that homeowners have Downgradient Property Status, and MassDEP will hold in abeyance the issuance a Notice of Responsibility (NOR). MassDEP will work with homeowners to reduce risk; a drinking water Imminent Hazard PFAS6 concentration of 90 ppt has been established by MassDEP.
  

• Multi-Lab Audit Findings.  Ken Marra and Liz Callahan summarized the results of the audit, which was initiated in 2016 and evaluated data packages for VPH/EPH/APH/TO-15. The Multi-Lab Data Audit Report (March 2021) has been posted here. Generally, laboratories did well with the TO-15 and APH analyses. There were potential low bias issues with VPH & EPH analyses in approximately one-half of the data packages, resulting in MassDEP issuing revisions to the VPH methods (February 2018) and EPH methods (December 2019) to clarify the issues. MassDEP does not anticipate doing a systematic review of past submittals relative to the low bias issues identified, but is considering measures for more routine checking of laboratory quality.
  
  If you are interested in participating in subgroup meetings regarding laboratory data quality, please send an email to [email protected].

• MassDEP Focus on Environmental Justice.  Deneen Simpson, MassDEP’s Director of Environmental Justice, summarized MassDEP’s work since June 2020 to evaluate the agency’s internal and external culture, practices, and policies related to environmental justice and equity. This work involves regional offices as well as a focus by the Commissioner. MassDEP is working to diversify advisory and stakeholder groups, and has developed and is implementing Environmental Justice Public Involvement Plan Guidance (currently an internal document only) on approaches to  engage diverse communities. MassDEP’s EJ Team meets quarterly. Rishi Reddi is the Director of Environmental Justice at the Executive Office of Energy and Environmental Affairs (EEOA), and the EJ Team also includes Liz Callahan and Peggy Shaw of BWSC. 

• Refreshing the Waste Site Cleanup Advisory Committee (WSCAC).  MassDEP is evaluating the composition of its stakeholder groups. The WSCAC is not created by statute and therefore MassDEP has flexibility regarding its composition, meeting format, etc. MassDEP would like to expand representation to ensure the full range of program stakeholders and would like to seek additional representation from EJ communities, PIP group members, student representatives, environmental advocacy groups, and/or subject matter experts. The Department is considering establishing term limits, establishing a set meeting schedule (likely quarterly), and varying meeting times and locations. The WSCAC members discussed their thoughts on the various proposals. If you have ideas of how MassDEP might conduct outreach to expand the representation of the advisory committee, please email [email protected].

• Office Hours and WSCAC Meetings.  MassDEP expects to continue holding virtual meetings, but anticipates switching from the Zoom platform to another platform for its Thursday morning “office hours” and WSCAC meetings.  The frequency of weekly office hours will probably be reduced, and WSCAC meetings will likely be held quarterly.

• Brownfields Tax Credits. The Massachusetts Department of Revenue is considering comments on its proposed new brownfields tax credit regulations.  An interagency workgroup has recently conducted listening sessions about the brownfields tax credit program.  They expect to have workgroup findings within a couple of months.

• Searching for COCs on Waste Site/Spills Look Up.  Paul Locke confirmed that it is not possible for the public or MassDEP to search the site lookup database by COCs.

• BWSC Grant Programs update.  Liz Callahan provided an update on various grant programs, including:
  • Natural Resource Damages – grant opportunity related to Former National Fireworks Site in Hanover
  • Technical Assistance
  • Marine Oil Spill Prevention & Response

1. Finalize outstanding guidance/policies: AULs, Engineered Barriers, Historic Fill, etc. (MassDEP)
2. Soil Management: Assist with needed capacity, beneficial uses, PFAS disposal (MassDEP and others)
3. PFAS: Address background conditions and MCP release exemptions (MassDEP)

4. Asbestos in Soil: Streamline and clarify regulations (MassDEP) – 29%
5. PFAS Private Well Sampling Program: Address MCP responsibility and liability issues (MassDEP) – 26%
6. LSP Board of Registration: Update regulations, improve operations (EOEEA) – 23%
7. 21J Fund: Reconcile LSP decision making and allowed reimbursements (MA Department of Revenue) – 18%
8. Brownfields Tax Credits: Reconcile LSP decision making and allowed reimbursements (MA Department of Revenue) – 17%
9. Public Involvement: Update guidance documents (MassDEP) – 8%%

Register Now!