Commonwealth of MassachusettsExecutive Office of Environmental Affu.isDepartment ofEnvironmental Protection

Daniel S. Greenbaum

May 9, 1991

Mr. kichard Cavagnero, ChiefMA I Superfund SectionWaste Management DivisionEnvironmental Protection AgencyMRS CANTJFK Federal BuildingBoston, MA 02203-2211

RE: NEW BEDFORD, Sullivan'sLedge — OU IIARAR IdentificationDEP Case No. 4-0128

Dear Mr. Cavagnero:

This letter is in response to your correspondence of April 10,1991 requesting the identification of state applicable orrelevant and appropriate requirements (ARARs) which pertain tothe Sullivan's Ledge Superfund Site — Middle Marsh OperableUnit.

All of the ARARs cited in this letter are of generalapplicability and are legally enforceable. None of therequirements are applicable solely to CERCLA sites. Enforccrcntprovisions are contained within each requirement.

Documentation of promulgation for each requirement is provided bythe following citations: statutory authority; regulatoryauthority; and effective date of the cited regulation.

Each ARAR identified in this letter is potentially more stringentthan its federal counterpart or has no federal counterpart.

The Department generally identifies M.G.L. c. 21E and theMassachusetts Contingency Plan (MCP) as applicable requirementsfor sites in Massachusetts, while reserving the right to nsscrtthat they are not merely ARARs but are additional staterequirements that cannot be waived or preempted pursuant to theprovision of Section 121 (d)(4) of CERCLA. The Departmentidentifies the MCP and Chapter 21E as applicable requirements,within the meaning of CERCLA, for the entire SuJlivan's lodgedisposal site. As such, we are also deferring our evaluation of

One Winter Street Boston, MnssschufOtti 02108 FAX (617) 556-1019 {'.I'l ?«? 5500

the entire site under the MCP and Chapter 21E until completion ofche Proposed Plan for the last operable unit on the site. Atthat time, total site risk, taking into account all remedies,will be evaluated for consistency with the MCP and Chapter 21E.

The Department recently signed a Memorandum of Understanding(Muu) with the Executive Office of Environmental Affairsregarding the Massachusetts Environmental Protection Act. NoEnvironmental Notification Form or Environmental Impact Report isrequired for a remedial action which complies with the followingprovisions of the MCP: 310 CMR 40.204, 310 CMR 40.543(4)(c) and310 CMR 40.546(7)(c). A copy of the MOU is enclosed.

In addition to the cited ARARs, a list of non-promulgatedpolicies and guidance documents are being identified as To BeConsidereds (TBCs). The TBCs are used in clarifying thereq'jlaments and application of certain ARARs. Both the ARARs andTBCs are contained in the attachment to this letter.

If you have any questions regarding this letter please contactCharla Reir.ganum or Helen Waldorf (292-5851) of my staff. Thankyou for the opportunity to provide input into the remediationeffort.

Sincerely,

Maueline SnowDivision DirectorResponse and RemediationBureau of Waste Site Cleanup

Enclosure/Attachmentcc: Charla Reinganum, BWSC RR

Roxanne Mayer, OGCJane Downing, EPA<—Margery Adams, EPA

ARARs IDENTIFICATIONSULLIVAN'S LEDGE - MIDDLE MARSH OU

MA WETLANDS PROTECTION ACT REGULATIONS

M.G.L. C. 131, §40310 CMR 10.00, effective date: April 1, 1983

These regulations are an applicable location-specific ARAR whichregulate dredging, filling, altering, or polluting inlandwetlands. Each remedial alternative involving work in or within100 feet of a wetland will be evaluated for its ability to attainregulatory performance standards, including mitigation ofimpacted wetlands. Per 310 CMR 10.59 Rare Species habitats willbe identified and each remedial alternative will be evaluated forits ability to minimize adverse effects on such habitats.

ENDANGERED WILDLIFE AND WILD PLANTS REGULATIONS

M.G.L. C. 131, §4 Clause 13A321 CMR 8.00, effective date: March 2, 1990

These regulations are an applicable location-specific ARAR whichestablish Massachusetts' list of threatened and endangeredspecies. The State List of Endangered Wildlife and Wild Plantsis more extensive than the U.S. List of Endangered and ThreatenedWildlife and Wild Plants. The habitat of any species listedunder this requirement is protected by the regulationspromulgated under the MA Wetlands Protection Act.

SITE ASSIGNMENT REGULATIONS FOR SOLID WASTE FACILITIES

M.G.L. C. 21A, §§2,8 and C. Ill, §§150A,150Al/2310 CMR 16.40, effective date: May 11, 1990

These regulations are an applicable location-specific ARAR whichcontain the criteria to determine whether a parcel of land issuitable to serve as the site for a solid waste facility. Wastesexcavated as part of the Middle Marsh Operable Unit which are notcharacteristic or listed hazardous wastes pursuant to 310 CMR30.00, including wastes with concentrations of PCBs less than 50ppm, are classified as solid wastes. No portion of the facility

Page 2ARARs Identification (Cont'd)May 9, 3991

may be located within a wetland or bordering a vegetated wetlandor within a 100 year floodplain. No site shall be determinedsuitable where such siting would have an adverse impact on MAEndangered, Threatened, or Special Concern species.

SOLID WASTE MANAGEMENT REGULATIONS — PART II

M.G.L. c. 21A,SS2,8 and c. 111,S150A310 CMR 19.100, effective date: October 26, 1990

These regulations are an applicable action-specific ARAR. Part IIestablishes minimum performance and design standards; operationand maintenance standards; and closure/post-closure requirementsfor solid waste landfills. Wastes excavated as part of theMiddle Marsh Operable Unit which are not characteristic or listedhazardous wastes pursuant to 310 CMR 30.00, including waste? withconcentrations of PCBs less than 50 ppm, are classified as ^olidwastes. Construction of an onsite disposal facility for suchexcavated wastes will need to meet these requirements unless itcan be affirmatively demonstrated that an alternative design canachieve the performance standards specified for each component ofthe design and operation standards.

Specific sections of 310 CMR 19.100 that are relevant andappropriate to the Middle Marsh OU are:

310 CMR 19.104 - Landfill Facility Plan310 CMR 19.106 - Construction Certification310 CMR 19.110 - Groundwater Protection Systems310 CMR 19.112 - Landfill Final Cover Systems310 CMR 19.114 - Groundwater Protection System and Final Cover

Waivers310 CMR 19.115 - Storm Water Controls310 CMR 19.116 - Surface and Groundwater Protection310 CMR 19.117 - Air Quality Protection310 CMR 19.118 - Ground Water, Surface Water, and Air Monitoring

Systems310 CMR 19.130 - Operation and Maintenance Requirements310 CMR 19.140-143 - Landfill Closure, Post-Closure Requirements

Page 3ARARs Identification (Cont'd)May 9, 1991

HAZARDOUS WASTE REGULATIONS

M.G.L. c. 21C,SS4,6 and c. 21E,S and by $7 of c. 584 of the Actsof 1987310 CMR 30.00, effective date: December 12, 1990

These regulations include relevant and appropriate action-specific and applicable chemical-specific ARARs. Massachusettshas state authorization for the RCRA program so theserequirements are at least as stringent as those promulgated underRCRA. These regulations comprehensively regulate the generation,storage, transportation, treatment, disposal, use, reuse, andrecycling of hazardous wastes in Massachusetts.

Specific portions of these regulations which pertain to the siteare identified below.

• Determination that materials are hazardous wastes (applicable).310 CMR 30.131 lists hazardous wastes from non-specific sources.Wastes which contain PCBs in concentration greater than or equalto 50 ppm are hazardous wastes. Any hazardous waste excavated orgenerated as part of the remedial action must meet the relevantand appropriate portions of 310 CMR 30.00.

• Disposal of material in Sullivan's Ledge disposal area. Thefollowing requirements were identified as relevant andappropriate in the Operable Unit I ROD. Although wastes disposedof under the current OU may be classified as solid waste, thesame requirements established for the disposal area landfillduring the first operable unit apply to any materials placedunder the disposal area cap during the current operable unit.These requirements include:

310 CMR 30.580 and 590 - Closure and Post-Closure Requirements310 CMR 30.660 - Groundwater Protection Requirements310 CMR 30.620 - Landfill Requirements310 CMR 30.700 - Facility Location Standards and Land

Disposal Restrictions

• Offsite disposal of hazardous wastes. The following regulationsare not an ARAR because they apply to offsite actions but nust becomplied with:

310 CMR 30.300 - Requirements for generators of hazardous waste310 CMR 30.400 - Requirements for transporters of hazardous waste

Page f>^ARARs Identification (Cont'd)May 9, 1991

AIR POLLUTION CONTROL REGULATIONS

M.G.L. C. 111,§142A-142E310 CMR 7.00, effective date: May, 1990

These regulations are an applicable action-specific ARAR. Allconstruction and treatment activities will utilize Best AvailableControl Technology in order to prevent contaminant transferbetween other media and air. MA AALs and TELs are used indetermining compliance with these regulations.

SURFACE WATER QUALITY STANDARDS

M.G.L. C. ?1,§27314 CMR 4.00, effective date: July 20, 1990

These regulations are an applicable action-specific ARAR. Theseregulations designate th«» most sensitive uses for which surfacewaters shall be enhanced, naintainpd. and protected; andprescribe the minimum water quality criteria required to sustainthe designated uses. Federal AWQC are incorporated in determiningeffluent discharge limits. Where recommended limits are notavailable, site-specific limits shall be developed. Any onsitewater treatment and discharge is subject to those requirerents.

SUPPLEMENTAL REQUIREMENTS FOR HAZARDOUS WASTE MANAGEMENTFACILITIES

M.G.L. C. 21,§43314 CMR 8.00, effective date: December 31, 1986

These regulations are a relevant and appropriate action-specificARAR. "RCRA facility" subject to surface water dischargerequirements must also comply with requirements regardinglocation, technical standards for landfills, closure and post-closure, and management standards.

Page tfARA'Rs Identification (Cont 'd)May 9, 1991

RIGHT TO KNOW REQUIREMENTS

M.G.L. C. 111F

The following three sets of regulations are applicable action-specific ARARs. They pertain to all remedial activities.

105 CMR 670.00, effective date: May 26, 1989

These regulations establish the MA Substance List for which theprovisions of M.G.L. c. 111F apply and establish trade secretexemptions for MSDSs.

310 CMR 33.00, effective date: December 31, 1986

These regulations specify the requirements for employers to fileXSDSs with the DEP and the method by which community residentscan obtain access to this information.

454 CMR 21.00, effective date: December 31, 1986

These regulations establish requirements to protect the healthand safety of employees through the communication of informationregarding toxic and hazardous substances.

MASSACHUSETTS CONTINGENCY PLAN

K.G.L. C. 21E310 CMR 40.00, effective date: November 3, 1988

These regulations are an applicable ARAR to all remedial actionsinvolving releases of oil or hazardous materials. The Departmentmaintains that M.G.L. c. 21E and the MCP are not merely ARARs butare additional state requirementw which cannot be waived orpreempted pursuant to the provisions of Section 121 (d)(4) ofCERCLA. In order to determine that the entire Sullivan's Ledgesite will not pose a significant risk of harm to health, safety,public welfare, and the environment during any foreseeable periodof time the Total Site Cancer Risk cannot exceed 1 x 10"5 and theTotal site Noncancer Risk cannot exceed 1.0.

Page 7kARARs Identification (Cont'd)Kay 9, 1991

CERTIFICATION FOR DREDGING, DREDGED MATERIAL DISPOSAL AND FILLINGIN WATERS

M.G.L. c. 21,§§26-53314 CMR 9.00, effective date: December 31, 1986

These requirements are an applicable action-specific ARAR. Theseregulations establish criteria and standards for the uniform andcoordinated administration of water quality certification ofdredging and dredged material disposal and filling projects inwaters of the Commonwealth. Disposal of any dredged materialmust comply with the general practices established in 314 CMR9.03. Any project also must be designed to ensure themaintenance or attainment of the MA Water Quality Standards inthe affected waters and to minimize the impact on the environmentper 314 CMR 9.04.

MASSACHUSETTS ENVIRONMENTAL PROTECTION ACT

M.G.L. C. 30,§§61-62H301 CMR 11.00, effective date: January 9, 1987

These regulations are an applicable action-specific ARAR. Theregulations require review and evaluation of any proposed remedycosting over $1 million so as to describe its environmentalimpact. Additionally the regulations require such rer.edies touse all feasible means and measures to avoid or minimize damageto the environment.

TBCs

Guidance for Disposal Site Risk Characterization and RelatedPhase II Activities In Support of THe Massachusetts Contingency

This document provides guidance for conducting health riskcharacterizations in accordance with the MCP.

Wetlands^Protection Program Policy 90-2; Standards and Proceduresfor Determining Adverse Impacts To Rare Species^Habitat

This policy clarifies the rules regarding rare species habitatcontained at 310 CMR 10.59.

MA ALLOWABLE AMBIENT LIMITS - ANNUAL fAALsl AND 24 HOUR (TELsI

Page &•ARARs Identification (Cont'd)May 9, 1991

These guidances, developed by the Office of Research andStandards, are action-specific TBCs in evaluating whether acondition of air pollution exists.

..—}

Daniel S GreenbaumCommissioner

G&astau/ of Waste <Si

One> Winter- <Strtc6, O2fO$

James C ColmanAuiitanr Comm/tiioner

***** ANNOUNCEMENT *****

The Massachusetts Contingency Plan (MCP), which waspromulgated in 1988, includes requirements for ensuring thatremedial response actions at disposal sites comply with theMassachusetts Environmental Policy Act (MEPA). The Secretary ofEnvironmental Affairs and the Department of EnvironmentalProtection (DEP) have entered into a Memorandum of Understanding(MOU) which formalizes the relationship between the MCP and theMEPA regulations. A copy of the MOU is enclosed.

The MOU allows DEP to ensure that response actions atpriority disposal sites meet MEPA requirements for public notice,review and comment, as established in the MCP [310 CMR 40.204,310 CMR 40.543(4)(c) and 310 CMR 40.546(7}(c)]. Briefly, the MCPrequires DEP to publish a notice in the Environmental Monitorwhen a site is classified as a priority disposal site. Forpriority disposal sites for which the proposed remedy is expectedto cost one million dollars or which will need a permit from theCommonwealth, the MCP requires that public comment periods ondraft Final Remedial Response Plans (FRRPs) and Remedial ResponseImplementation Plans (RRIPs) be advertised in the Monitor aswell. These notices provide the public with information abouthow to review and comment on these documents, and replace theEnvironmental Notification Form which must be filed with the MEPAUnit for other types of projects which the Commonwealth reviews.

There are no MEPA compliance requirements for non-prioritydisposal sites. Also, projects which include the assessment andcleanup of priority disposal sites, but which are otherwisesubject to MEPA must continue to follow the process outlined inthe MEPA regulations.

DEP submits the required notices to the MEPA Office. If youare working on a priority disposal site which meets theregulatory threshold, please consult the DEP Project Managerassigned to your site for details on developing the notices forthe FRRP and RRIP. DEP automatically places the noticeannouncing site classification.

For more information, please call Glenn Keith, BWSC PublicParticipation Branch, 617/292-5818.

1/23/91

Oflglnil Printed on Recycled Paper

MEMORANDUM OF UNDERSTANDING

WHEREAS, the regulations promulgated pui^unnt to th->Massachusetts Environmental Policy Act, G.L. c. 30, ss. 61 - C2K(M£PA), require the filing of an Environmental Notification For-(ENF) for projects that require the licensing or approval of plansfor permanent on site containment, on site treatment, and/or off-site disposal of hazardous naterials where the total project cost(including design and engineering, excluding initial remedialmeasures), is $1 million or more, 301 CMR 11.26(7)(g)2;

WHEREAS, since the promulgation of 301 CMR 11.26 (7) (g)2, theDepartment of Environmental Protection has promulgated regulations,known as the Massachusetts Contingency Plan (MCP), 310 CMR 4C.OOOthat became effective on June 30, 1988, governing remedial actionsat disposal sites;

WHEREAS, the MC? provides for development of remedial plans inaccordance with c procedure that includes publication of notice inthe Environmental Monitor of specified portions of the plans and anopportunity for public comment;

WHEREAS, the Department of Environmental Protection hastcquooLed th« Secretary of Environmental Affairs to amend th^ MEFAregulations so that the filing of an ENF will not be required forprojects that meet the regulatory threshold conL^ir.r^ in 301 CM?.11. 2P (7) (g)2 because of the regulatory procedures established bythe MCP;

WHEREAS, remedial actions subject to t:.-~- XC? arc ^u'cr' '•.rt. v. "ybetter suited to review through the MCP prcc^:.n rather thin mv:^wthrough the MEPA process;

WHEREAS, the Secretary has determined that the KEPAregulations should be amended to eliminate the threshold containedin 301 CMR 11.26(7)(g)2; and

WHEREAS, notice of the Secretary's intention to ontT intcthis Memorandum of Understanding (MCU) has benn published in th"Environmental Monitor for a thirty day public comment period;

NOW, THEREFORE, until such time as the KEPA regulations, 30:CMR 11.00 et seq., are amended, the undersigned enter into thefollowing MEMORANDUM OF UNDERSTANDING:

1. Subject to the provisions of parnqv-Tph 3 b«^]cw, no TNF orKIR shall be required for a project th.Tt r^^tr. only th«- i-'v;^wthreshold established in 301 CMR 11.26(7)(g)2 [p-r-^r-o;-,- 0-, -]••-containment, on site treatment, or off sitf disposal nr ha.-«ir']-v.:.-

FEB - i ""

-where the total project cost ( inc] ,jd : p'j do^nn andengineering, excluding initial remedial .neacurc',) 1-3 Si nil'iop ormorej, provided that the provisions • et forth at 310 CMR 40. PCX,310 CMR 40.543 (4) (c) and 310 CMR 40 . i>4 6 (7) (c) ar<, followed.

2. Subject to the provisions of paragraph .5 below, r:shall be required to be filed for pemts UwL die required ~"lciyas a condition of performing a response action pursuant to G.L. c.21E and 310 CMR 40.000, provided that the provisions set forth at310 CMR 40.204, 310 CMR 40. 543(4) (c) and 310 CMR 40. 546(7) (c) arefollowed.

3. Notwithstanding paragraphs 1 and 2 above, this MCU doernot relieve a proponent from the obligation to file an ENF or EIRif required by any provision of '301 CMR 11.00 et seer, other than11 . 26 (7) (g) 2 , or by other state law or regulation.

4. Nothing in this MOU is intended to affecr or preclude thefiling of a request for environmental review purroant to 301 CMR11.03(6) .

-•ATE

DATE

John SecretarAf f a ir s

el Greer.baui?, , Ccrrair-- '. oneDepartment of Environriental

Protection