If the Commonwealth is truly committed to redeveloping its Gateway Cities and other challenged urban areas, NAIOP urges the Department to seriously consider both the comments of the many qualified scientists, attorneys, and members of the business community who have been participating in the workgroup process, and the ultimate real world consequences of these policies.
Thank you for your letter of June 16, 2009 on behalf of the National Organization of Industrial and Office Properties (NAIOP), regarding NAIOP comments relating to Massachusetts Department of Environmental Protection’s (MassDEP’s) development of Indoor Air Guidance. Your letter expresses concerns regarding the legitimate differences in opinion between MassDEP and NAIOP on a variety of technical and policy matters related to vapor intrusion that have been raised and are being discussed as part of the guidance development process.
MassDEP convened the Indoor Air workgroup in December, 2008 to seek input from LSPs and the regulated community on the development of an up-to-date, comprehensive guidance document with the intent of clarifying the current MCP regulatory framework and identifying appropriate practices relative to the assessment and mitigation of vapor intrusion impacts that ensure the protection of public health. This guidance is intended to help the regulated community understand how to meet regulatory requirements, thereby reducing some of the uncertainty that this complex exposure pathway presents. Our goal is to complete this guidance by the end of 2009.
Our decision to develop this guidance through an external workgroup, in a public and transparent way, was made because we recognize that this process allows for constructive dialogue between MassDEP and external workgroup members, and that such dialogue can only improve our mutual understanding of the issues and enhance the relevance and quality of the final product. An open and fully informed process should result in a guidance document that is clear, consistent to the extent possible with practices recommended by other regulatory entities, and protective of human health.
The workgroup now stands at over sixty Licensed Site Professionals (LSPs), environmental attorneys, laboratory managers, risk assessors, engineers, geologists and MassDEP staff. Seventeen workgroup and sub-group meetings have been held since December, giving everyone multiple opportunities to discuss their opinions on the topics to be covered by the guidance document. The draft guidance has benefited enormously from the active engagement and perspective provided by workgroup members. Many of the most substantive revisions have come as a result of external comments.
We are now at the midpoint of the guidance development process. Many of the specific issues you cite, such as Critical Exposure Pathway, MCP closure for the operation of sub-slab depressurization systems, and the role of modeling in assessing potential vapor intrusion are under active consideration. MassDEP will take your comments into account as we assemble a draft document this summer. We remain open to continued discussion of these issues with NAIOP and other program stakeholders when the workgroup reconvenes this fall.
However, I would like to briefly comment on one statement made in your letter regarding No Significant Risk and Permanent Solutions, an issue that appears to be central to some of your concerns. Your letter states that “Chapter 21E, § 3A establishes No Significant Risk as the defining endpoint for a Permanent Solution. That is the applicable legal standard. It is the lowest measure of risk that is recognized, quantified, or required under either the statute or the regulations.”
MassDEP believes that a full reading of relevant section directly supports remediation beyond No Significant Risk. Chapter 21E § 3A(g) states “For purposes of this chapter, a “permanent solution” shall mean a measure or combination of measures that, at a minimum (emphasis added), shall ensure the attainment of “no significant risk.”” Further on, that section also states “Where feasible, a permanent solution shall include a measure or measures designed to reduce to the extent possible the level of oil or hazardous materials in the environment to the level that would exist in the absence of the site of concern.”
This is not a new issue. Over the years, MassDEP has addressed the issue of feasibility of achieving or approaching background by providing guidance for several specific scenarios including cleanup of petroleum and VOCs in soil. We intend to address this issue as part of the indoor air guidance document, and welcome your continued engagement.
Thank you for your interest in this complex issue. MassDEP looks forward to working with you and all members of the workgroup in finalizing this guidance document. If you have any questions, or would like to discuss this with me further, please call me at 508-946-2799.
Gerard M. R. Martin, Chief
Site Management and Enforcement Section
Please be aware that -- unless stated otherwise -- the material posted on this blog is DRAFT, being made available ONLY as part of the policy development process to inform and direct discussion. Draft material is not final and is very likely to be significantly revised before it becomes final. Therefore, the draft material here cannot be quoted or cited as MassDEP guidance at this time.