Environmental Consulting is a growing industry in the United States, with companies operating under the guidance of Federal, State, and Local laws to carry out environmental assessment and restoration projects. These laws carry an expectation to protect the health and safety of citizens, yet weaknesses exist that allow for some to exploit gaps in protection for their own financial gains. One such example is the Massachusetts Contingency Plan (MCP) which created Licensed Site Professionals (LSPs) in Massachusetts; private professionals who are tasked with overseeing soil reclamation projects (soil importation from one area to another) in the state. A case in Uxbridge, MA demonstrates that this process of allowing a property owner to select their own LSP to oversee their reclamation project can compromise compliance to prioritize profits. Thanks to the hard work of local officials, Uxbridge was able to identify such conflicts of interest.
First, some history on how soil reclamation oversight was transferred from the authority of the State’s Massachusetts Department of Environmental Protection (MassDEP) to LSPs. Historically, soil reclamation projects were regulated by Massachusetts General Law Chapter 21E, which established a need for environmental assessment services, performed by MassDEP staff1. In 1986, a popular state ballot initiative passed that required MassDEP to search for sites in Massachusetts where oil or hazardous materials have been disposed of, and to take all steps necessary to clean up those sites within specified time limits.2 In 1993, the MCP was enacted, seeking to improve the problems that had been identified under 21E and was the new guiding legislation for environmental assessment in the state.3 During this time, the state was simultaneously undergoing “The Massachusetts Miracle”, a period where the middle class rapidly expanded during an economic boom, and as a result more properties were being purchased in the state.4 As Environmental Assessment was now required for property transfer, the state quickly became gridlocked, unable to keep pace with the burgeoning real estate market. Increasing numbers of real estate transactions and environmental site assessments resulted in the discovery of increased numbers of hazardous waste sites. It became apparent that MassDEP did not have the resources to move these thousands of hazardous waste disposal sites through the regulatory process at an expeditious pace. Thus, 21E was substantially amended to privatize environmental assessment and cleanup, requiring parties responsible for cleaning up contamination to hire Licensed Site Professionals (LSPs) to oversee cleanups to ensure compliance with the MCP. Thus, oversight and authority were privatized to LSPs, and removed from the state.1
To preserve environmental due diligence, the state created the Administrative Consent Order (ACO) to serve as a permitting tool for soil reclamation projects in the state. The purpose of ACOs is to create an agreement between the Responsible Party (land owner) and MassDEP, to ensure that the reuse of large volumes of soil for reclamation poses no significant risk of harm to health, safety, public welfare or the environment.5 ACO’s are utilized as a permitting tool, which create the conditions that must be met prior to the commencement of soil reclamation, and a majority of ACO compliance is dependent upon the LSP, who can be chosen by the Responsible Party, to ensure ACO compliance.3 Non-compliance of ACOs can result in financial penalties issued by MassDEP as well as termination of reclamation projects.
Herein lies the problem; a Responsible Party, for whom soil reclamation is a very profitable endeavor, can select their own LSP to oversee reclamation activities. The LSP organization will and has taken disciplinary action against LSPs who fail to meet their organization standards.6 However, persistent, negligent soil reclamation practices have been identified at several sites in Massachusetts. One such reclamation project in Uxbridge, MA continued accepting soil despite non-compliance with an ACO, before diligent town officials prompted MassDEP to force a suspension to all reclamation operations. An LSP in Uxbridge, who was selected by the Responsible Party, was cited with the following deficiencies identified by Town Officials as violations of the ACO7:
· Failure to meet sampling frequency requirements, the most egregious being no samples analyzed at all during second quarter of 2017.
· Imported loads frequently failed acceptance criteria.
· When a load failed acceptance criterion, no analysis was performed on previously deposited loads from the same site.
· Some failed loads were not removed from the site.
· The laboratory utilized by the LSP failed to meet detection limits for certain volatile organic compounds (VOCs), semi volatile organic compounds (SVOCs) and pesticides as required by the ACO.
Once these deficiencies were shared with MassDEP, again through the work of local health officials, soil reclamation operations eventually ceased, and penalties were issued.8 Given the profitability of soil reclamation combined with the length of time of the importation, it is believed that the profits from these few years of soil reclamation far exceeded the penalty issued by MassDEP. It is now incumbent upon the town to monitor surrounding properties for environmental contamination, as it is still unknown what contaminants, and at what concentrations, were in the imported soil. The problems with ACO compliance are not unique to Uxbridge in Massachusetts. At the time this study was conducted in 2018, 4 out of the 7 ongoing soil reclamation projects in the State of Massachusetts were found to be in violation of their ACOs9.
A review of reports submitted by LSPs to MassDEP database identified that there is a significant degree of variation in the structure and content. These range from environmental professionals and companies exercising exemplary due diligence, to simple documents which contain the bare requirements for approval from MassDEP. As LSPs have been granted the authority to oversee compliance of reclamation activities, they are free to use their own discretion once approved by MassDEP. The LSP Organization requires LSPs to attend Board-approved continuing education courses and to maintain a code of professional conduct to maintain licensure. The organization describes that “A licensed site professional shall hold paramount public health, safety, welfare, and the environment in the performance of professional services." 6 When an LSP is found to be in violation of these responsibilities, MassDEP issues disciplinary action, ranging from license suspension to revocation.
There is an appeal to the utility of an LSP, which streamlines soil reclamation processes, creates jobs, and transfers liabilities to the LSP from the State. However, this case in Uxbridge, MA suggests that LSP oversight creates opportunities for abuse and gaps in coverage, counterproductive to the goal of ensuring a clean environment and the protection of human health. To address these problems, I suggest the following actions be taken by the different stakeholders involved:
• Local Citizens – Participate in community environmental groups that are cognizant of reclamation activities, proposed or ongoing, and inform local officials of any concerning reclamation practices.
• Town Governments – Utilize local legal authority to protect the public health and environment of a town, as Uxbridge was able to accomplish within the state’s judicial system. Monitor reclamation activities and identify when ACOs are not in compliance and notify state authorities.
• MassDEP – Create regulatory structure to verify the information presented by LSP reporting. Deficiencies identified with an ACO must be addressed by MassDEP staff, not LSPs or third-party inspectors. Failure of ACO provisions should have harsher penalties and must be penalized once an ACO is found to be noncompliant.
• LSP Organization – Create an independent selection process, where a Responsible Party’s LSP is selected through an independent panel created by the organization. Standardize formatting of LSP submissions to ensure due diligence of ACO oversight. Stricter penalties should be enacted for repeated violations of LSP authority.
References
1. LSPA. “Chronology of MGL c. 21E, the MCP, and the LSPA.” LSP Association, 26 Sept. 2013, www.lspa.org/history-of-mcp-program-and-practice.
2. Massachusetts Secretary of State, "Statewide Ballot Questions — Statistics by Year: 1919 – 2012," http://www.sec.state.ma.us/ele/elebalm/balmresults.html#year1919 accessed March 17, 2019
3. 310 CMR 40.00: Massachusetts Contingency Plan 1995 M.G.L. c. 21E, §§ 3(c), 3(d), 3(e), 3A(d), 3A(f), 3A(g), 3A(m), 3B, 5A, 6, 7 and 14, and M.G.L. c. 21A, § 2(28), M.G.L. c. 21C and M.G.L. c. 111, § 160.
4. Lentz, Philip. “Dukakis Had Help with Massachusetts Miracle.” Chicago Tribune, 23 May. 1988, www.chicagotribune.com/news/ct-xpm-1988-05-23-8801010472-story.html.
5. Policy # Comm-15-01: Interim Policy on the Re-Use of Soil for Large Reclamation Projects. 08/28/2015. Section 277 of Chapter 165 of the Acts of 2014, M.G.L. c. 21E, Section 6, and M.G.L. c. 111, Section 150A.
6. “What Is an LSP?” LSP Association, www.lspa.org/what-is-an-lsp. Accessed 03/20/2019.
7. Black, Kristin to Board of Health, 07/03/2018, Town of Uxbridge Board of Health. RE: Updated Summary and Concerns, 145/175 South Street
8. RE: Notice of Project Termination Green Acres Soil Reclamation Facility 145-175 South Street Uxbridge, MA RTN 2-0019862. 11/01/2018. http://eeaonline.eea.state.ma.us/DEP/wsc_viewer/Default.aspx?formdataid=0&documentid=471830 Accessed 03/20/2019
9. “‘Reclamation Soils’ Policy and Facilities.” Mass.gov, www.mass.gov/service-details/reclamation-soils-policy-and-facilities. Accessed 03/20/2019