By Greg D. Peterson, Esq.
It’s hard to beat the ancient Greeks at turning a
phase. Hippocrates, the Father of Medicine, once said “Man is an
obligate aerobe.” In modern terms, no breath, no life. So the
Massachusetts Department of Environmental Protection should care, and
care deeply, about the quality of the air we all must breathe to live.
At the same time good health, economic as well as physical and
psychological, depends on balance. And sad to say the 21E program at
MassDEP now appears to be profoundly out of balance.
Over the course of the last 18 months the 21E program
at MassDEP has re-opened hundreds of closed 21E cases across the
Commonwealth, many involving projects long since sold and redeveloped,
in an attempt to address what the agency believes to be possible indoor
air quality issues. Long-filed Permanent Solution Response Action
Outcomes which met applicable standards at the time of filing and were
supposed to perfect owners’ liability shields under the 1998
Brownfields Act are being invalidated. MassDEP has changed standards
after the fact, and is applying new standards retroactively. In the
process, owners are facing audits and notices of non-compliance.
Well-respected Licensed Site Professionals (LSPs), who fill a role
under the 21E cleanup program equivalent to that of auditors and tax
preparers under accounting standards and the tax code, have referred to
the new MassDEP approach as the “indoor air jihad.” Some have even
speculated that the effort amounts to an attempt to de-facto repeal the
award-winning, privatized 21E cleanup program.
At the demand of MassDEP property owners are being told
they must now conduct perpetual indoor air testing in a wide range of
offices, retail stores, restaurants and residential space, often at a
cost of tens of thousands of dollars per sampling round – even if one or
more rounds of test results do not reveal indoor air contaminants.
Owners are being required to sample in occupied spaces, and to take
“soil gas” samples through building slabs, including in occupied
spaces. Owners are being required to post notice of such testing at
entrances and other conspicuous public places in their buildings.
Owners are being instructed to demand that their tenants warn the
tenants’ employees of such testing and test results. Such notices are
sometimes worded in a manner that delivers more upset than information
to laypeople. MassDEP has ordered Owners to put notice of such
long-term testing obligation at the Registry of Deeds, in the form of
“activity and use limitations” (aka deed restrictions) on property.
MassDEP has ordered owners to gain access to and test neighboring
commercial and residential properties (and to provide all of the
notices mentioned above to their neighbors, and neighbors’ tenants and
neighbor’s tenants’ employees).
MassDEP has compounded the potential harm of its
approach by requiring that indoor air samples be analyzed for a long
list of potential air contaminants even if only a handful of such
compounds were ever present in soil or groundwater. It is well known in
the scientific and consulting community that the volatile organic
compounds (VOCs for short) at the heart of the MassDEP campaign are
literally “in the fabric” of modern, urban society. They occur in the
building materials, petroleum products, degreasing and cleaning
products, and even mattresses we all use on a daily basis in our homes
and workplaces. They are present in clothes brought home from the dry
cleaners. They are, as real-world data clearly show, released to the
atmosphere by dry cleaners and others through unregulated processes,
often at levels many times the thresholds under the new MassDEP
standards. It is impossible to tell the difference between VOCs from
these sources and VOCs coming into indoor air from soil or groundwater
(which is all DEP gets to regulate under the 21E program). Having
required property owners to prove a negative, MassDEP then requires
“multiples lines of evidence” (i.e., soil and groundwater results as
well as indoor air and outdoor air control results) to sort out the
confounding problem of what part of VOCs in indoor air is coming from
soil or groundwater versus other sources.
The new MassDEP approach then goes on to require
emergency-response timing to address the presence of very low levels of
dry cleaning solvent in indoor air, in multi-family as well as
single-family residences (even where there are only a few millionths of a gram per cubic meter
of air). Until recently MassDEP agreed that background levels of VOCs
in indoor air from unregulated sources was greater than these levels.
Based on this approach one might conclude there is an
enormous threat to public health. In fact, the situation is more akin
to the self-generated weather of television anchors anticipating the
first snow of the season. For example, in the case of the dry
cleaning solvent that has generated the most attention from MassDEP,
the approach is founded on very conservative assumptions about how to
extrapolate to humans the results of toxicology studies on species that
have very different metabolism, and on unreasonably conservative
assumptions about the length of time people occupy a space. How many
people really spend 24 hours a day, seven days a week, for 30 straight
years, in their basements? In fact even within MassDEP there is
disagreement about how far the approach should be taken, with the
predictable result of different treatment of similar cases, depending
on the luck of the draw of location, regional office and case officer.
For the most part property owners and MassDEP had been
on the same page. If there’s a scientifically unacceptable level of a
contaminant in indoor air, the vast majority of property owners want to
do the right thing and clean it up. At some point we need to draw a
rationally-based line concerning the grounds for continued testing and
the frequency with which testing should occur. There are important
reasons to value certainty in legal standards, property transactions,
financing and economic life, and to value the adaptive re-use of smart
growth, urban and suburban properties, as well.
Without much fanfare, MassDEP and representatives of
the LSP community have been meeting as part of an Indoor Air Workgroup
to review and discuss evolving MassDEP guidance concerning indoor air
impacts from releases of oil and hazardous materials to soil and
groundwater. A revised, draft guidance is in the works now.
Reportedly MassDEP will issue a draft guidance for public comment in
December. Perhaps if senior Administration officials hear from
property owners and the lending and business communities about the
enormous damage being done to the 21E program and the resulting
regulatory, legal and economic uncertainty, at precisely the time more
certainty is called for, MassDEP may yet act in a more balanced way.
Otherwise, don’t hold your breath.
Greg D. Peterson
is an environmental and real estate partner at Tarlow, Breed, Hart
& Rodgers, P.C. in Boston, a Past President of the Real Estate Bar
Association for Massachusetts, and a principal drafter of Chapters 40R
and 40S and the Expedited Permitting Act.
A version of this article appeared in Banker & Tradesman Commercial Real Estate Monthly on November 30, 2009. Please click here to view the published article (PDF).