The recently enacted Brownfields legislation has resulted in a lot of discussion and analysis regarding redevelopment of underutilized, contaminated urban properties. Not mentioned in the context of the recent Brownfields activity are the similar obligations and opportunities relating to proper closure and post-closure use of solid waste landfills. With over 100 unlined landfills in the state, there are many sites that lend themselves to positive reuse opportunities.
According to the Department of Environmental Protection's ("DEP") Massachusetts Solid Waste Master Plan (1997), the Commonwealth is "close to ending its dependence on potentially polluting unlined landfills." DEP reports that, in the early 1990s, most municipal solid waste was dumped into 185 privately or municipally owned unlined landfills. In 1993, pursuant to a legislative mandate, DEP ranked 105 unlined landfills that were actively accepting solid waste as posing either a "significant threat," a "potential threat," or "little or no threat (or where too little information was known)" to the environment. Since then, DEP reports that 67 of these landfills either have closed or have agreed to close by the year 2000. DEP continues to work with the owners of the remaining active unlined landfills, as well as with the owners of inactive landfills, to ensure that all landfills posing a threat to the environment are properly closed and capped.
With a little bit of attention and some remediation, this subset of Brownfields-like sites presents unique opportunities for redevelopment. Although the sites may contain oil and/or hazardous material, the "adequately regulated" provision of the Massachusetts Contingency Plan ("MCP") allows landfills to be closed under the jurisdiction of DEP's Division of Solid Waste, instead of its Bureau of Waste Site Cleanup. However, in order for owners and/or operators of landfills to achieve this status, they must work their way through a complex analysis of the landfill assessment and closure regulations. Complying with these regulations often presents an undue burden for many owners and operators of landfills, especially for municipal owners. Once closed, however, landfill sites can be used for a variety of purposes, including active or passive recreation areas, municipal facilities, or commercial and office space. Land-poor cities and towns, therefore, should view landfill closure activities as a benefit that can turn large tracts of land into useable open space or profit centers.
The post-closure use of a site often drives portions of the assessment and closure process. For instance, using a site for passive recreation often presents fewer problems than constructing foundations for commercial buildings on the site. However, if the post-closure use of the site will involve extensive recreation activities, such as soccer fields, the assessment process will require a detailed risk assessment to evaluate human health and environmental risks associated with that use. Therefore, it is important for a municipality to plan ahead for its post closure intended use.
The following discussion will summarize the steps involved with the Massachusetts landfill assessment and closure regulations and explain how three Massachusetts communities are turning their burden of closing their landfills into exceptional opportunities.
Landfill Assessment And Closure
The first step in preparing for the redevelopment of a landfill is to assess properly its impact on groundwater, surface water and air quality. This is done by a process similar to that required in the MCP for contaminated sites, however, it does not necessarily require a Licensed Site Professional. The environmental consultant overseeing the assessment must characterize adequately the nature and extent of the contamination in the landfill and assess the risks associated with it to the public health and the environment. Overall, the landfill assessment process involves examining the site history, characterizing the waste beneath the ground surface, determining potential pathways of contaminant migration, identifying all potential sensitive receptors and examining surface water and air quality. The DEP has adopted a three-pronged approach for conducting environmental assessments of landfills. Each phase of the assessment builds on the data collected from the previous phase.
The first phase, called the Initial Site Assessment ("ISA"), consists of conducting an historical and literature review (often found in a variety of municipal departments), preparing a hydrogeological description, conducting a site visit, preparing a regional map, evaluating any existing data, identifying potential sensitive receptors and developing a Scope of Work for the next phase, the Comprehensive Site Assessment ("CSA").
The CSA is a more extensive analysis of the extent of the environmental impact caused by the landfill. The CSA consists of summarizing the ISA, mapping (including any updates or adding site topography), developing a drilling program, determining hydraulic conductivity, developing a sampling and analysis plan and a health and safety plan, identifying a project schedule, and preparing a CSA report.
The third phase in the process is the Corrective Action Alternative Analysis ("CAAA"), which evaluates all the actions necessary to remediate any adverse impacts of the landfill to the environment. The CAAA must include an analysis of options for corrective actions to eliminate or reduce any potential adverse impacts that might be caused by landfill conditions, and a complete final closure plan. The ultimate goal of the CAAA is to establish a permanent solution for the landfill closure and its post-closure redevelopment. Once the preferred option is selected, the next step is to design and implement the corrective action.
The final closure plan report, which requires DEP approval, must address final cover design (such as grading, gas venting, permeability, drainage, filtering, vegetative support and vegetative cover), a leachate collection system, final landfill contours, landscaping, construction plans for on-site structures, if applicable, stormwater control, methane gas venting or gas collection and recovery systems, groundwater, surface water and gas monitoring system, and site security.
Since landfills typically settle from approximately 10%-30% of their original thickness, and landfill leachate and methane gas will continue to be generated by a closed landfill for several years, the post-closure regulatory requirements include monitoring and maintaining the landfill for a period of at least 30 years. This period can be shortened by a demonstration that the landfill will not present a threat to the public health safety or the environment.
The next part of this article will describe how three Massachusetts municipalities have turned the burden of assessing and closing their old landfills into benefits for their respective communities.
Community No. 1
One town, located north of Boston, is the owner of a former municipal landfill. The town has negotiated a long-term lease for development of the site as a business park containing a hotel, two office buildings and a sports/country club complex. The town previously negotiated an Administrative Consent Order ("ACO") with DEP, the terms of which require the town to cap the former landfill site by the end of 2000.
With respect to the landfill closure, the town's consultant is in the process of completing the CSA, which will identify any environmental conditions at the site and define the risks that must be addressed by the landfill closure. If environmental conditions are found at the site that normally would trigger responsibilities and liabilities under Chapter 21E, the landfill closure activities likely would be deemed "adequately regulated" under the MCP, since the closure activities are being conducted pursuant to the terms of an ACO.
The former landfill was located in the town's industrial zoning district. However, to maximize development options and its control of development on the site, the town adopted an overlay district as an alternative to the industrial district. Thereafter, the town solicited proposals pursuant to the public procurement laws for a developer to acquire and develop the site. The town considered many proposals for post-closure use, almost all of which combined differing mixes of office, hotel, restaurant, retail, movie theater and residential uses. The proposals also differed as to whether the developer or the town was responsible for capping the landfill. The town also considered whether it should sell the site only after completing the closure activities. Although the town had anticipated selling the site, it ultimately agreed to a long-term 99-year lease of the site with the developer/ground lessee assuming the cost and responsibility for closure and long-term monitoring.
Many questions needed to be resolved. For instance, who would be responsible for complying with the terms of the ACO? Who would be liable for potential fines if the milestones in the ACO were not met? How would the town ensure that the developer appropriately complied with the ACO? How would the town monitor the developer's activities? What protection mechanisms would the town have in the event that the developer defaulted on its obligations? How would the developer "take over" the closure process from the town? Should the developer be required to use the same closure consultant that had been working with the town? A lengthy lease was required between the town and the developer to deal with these issues and more.
One of the threshold issues was whether the developer could assume and perform the closure and post-closure obligations arising under the ACO in accordance with direct regulatory review by the DEP, where the ACO was executed only by the town and DEP. Because the regulations contemplate that lessees may be both owners and operators of a site, DEP agreed to acknowledge that closure and post-closure activities performed by the developer's consultant would satisfy the obligations under the ACO.
DEP's regulations require that the owner or operator establish or obtain, and continuously maintain, financial assurance satisfactory to DEP, that it is at all times financially capable of complying with the closure requirement. The ACO required that the town appropriate necessary funds for performing the milestones in the ACO, including final closure and remediation of the landfill. Therefore, a key issue addressed under the terms of the lease concerned the town's obligation under the ACO to provide a financial assurance mechanism to ensure that financial resources are available to meet the type of closure and post-closure requirements set out in the ACO.
Community No. 2
The second community, located approximately 10 miles west of Boston, found itself in need of open space and recreational fields. In this community, prior efforts by private parties to redevelop a 20-acre, inactive, privately owned and operated municipal solid waste landfill had failed. The town purchased the landfill from a mortgagee with the goal of developing both passive (wetlands) and active (soccer fields, tennis courts) post-closure uses on the site.
Landfill closure activities began almost immediately, with the town soliciting bids under the appropriate public procurement laws for a consultant to oversee the closure activities. Currently, the town has completed its CAAA and is waiting DEP's approval of the final Corrective Action Design. In conjunction with closure activities, the town has begun to address some of the issues associated with redevelopment of the site. The first phase of redevelopment includes rehabilitation of the existing drainage system within the site. The proposed work involves constructing new drainage mains around the landfill property, abandoning those main pipes that now pass through the site, constructing a lined detention pond on the property and performing appurtenant work. To complete this phase of redevelopment, the town must obtain an Order of Conditions from the local conservation commission under both the state Wetlands Protection Act and the local wetlands protection bylaw. Subsequent phases of the redevelopment likely will require further approvals from the conservation commission. The conservation commission also has jurisdiction over potential stormwater impacts to wetland resource areas. Some isolated areas of hazardous materials likely will require removal.
Since the town plans to retain ownership of the site once it has been redeveloped, it will not have to deal with the issue of ensuring that ongoing monitoring responsibilities are complied with by a future owner or lessee.
Community No. 3
The third community, located approximately 3 miles from Boston and densely populated, found itself in need of open space in locations where municipal operations, such as composting, could continue. Thus, it began the assessment and closure process for its two adjacent inactive landfill sites. Because of the close proximity of residential abutters to the landfills, the town included community participation at the onset.
Currently, the town has completed ISAs for both landfills and is conducting CSA activities. During its assessment process, the town discovered refuse deposited on land outside of the footprint of the municipally owned landfills. As a result, issues regarding access for off-site sampling and ultimate closure designs will need to be addressed, possibly in the form of access agreements, releases and indemnifications. Because one option for post-closure use will involve on-site municipal composting operations, the consulting team included a composting and odor control expert.
Other Related Laws
When assisting a client with the landfill assessment and closure regulations, it is important to have a thorough knowledge of a whole host of other laws. The landfill regulations cross-reference and are interwoven with many environmental laws and regulations, all designed to provide equal environmental protection. For instance, wetland issues often arise during landfill assessment and closure activities. Typically, resources protected under the state Wetlands Protection Act and local wetlands bylaws and ordinances are located on landfills, and all potential alterations and mitigation plans must be addressed. In addition, addressing stormwater issues is exceptionally important during the design phase of the closure, since runoff can become a problem once the landfill is capped.
Chapter 21E almost always comes into play when assessing and closing landfills. As previously mentioned, the "adequately regulated" provision of the MCP was designed to reduce a regulatory overlap and duplication within DEP. Although an "adequately regulated" landfill closure can proceed under the solid waste regulations, certain MCP requirements may be required depending on the intensity of the proposed post-closure use.
Land use laws also come into play when assessing and closing landfills. The extent of municipal solid waste often is discovered on private land beyond the primary landfill footprint. Therefore, possible encroachment issues arise, and access agreements may be required for sampling and implementation of closure design. Eminent domain can be considered as an option. Moreover, depending on the corrective alternatives selected in the CAAA, possible future property restrictions may be required.
Other legal issues associated with the landfill assessment and closure requirements relate to the intended post-closure use. For instance, if the post-closure use will involve commercial and/or retail buildings, the owner must decide whether and when to sell or lease the property. Carefully crafted lease and purchase and sale agreements must be drafted to address such issues as who will maintain the obligations and responsibilities for closure and the post-closure monitoring.
Finally, when a municipality engages consultants and engineers to assess and close the landfill, it must comply with public procurement laws. This issue should be addressed at the onset with municipal officials, prior to the development of the request for proposals.
In conclusion, the formula for success involves compiling a competent team at the onset of the landfill assessment to help weave through the complex maze of solid waste management regulations and policies. The team should consist of key municipal officials (such as an engineer, board of health, town counsel or city solicitor, and municipal administrator), environmental consultants, and environmental and (possibly) real estate attorneys.
A municipality should plan ahead for its intended post-closure use and involve a community group to rally support behind the concept. This is crucial, especially for residents and business owners located near the landfill, who often will be the best supporters for raising funds at the municipal level.
With careful planning, landfill owners and operators can turn the significant burden of landfill closure requirements into a unique community benefit by redeveloping unusable land.
Nancy Kaplan, who chairs the Boston Bar Association's Environmental Law Section, focuses her practice on special environmental issues. Cheryl A. Blaine's practice focuses on land use and municipal issues. Attorneys Kaplan and Blaine are members of the environmental and municipal practice group at Keegan, Werlin & Pabian. They, along with Barry P. Fogel and H Theodore Cohen, advise a variety of private and municipal clients on environmental issues in land redevelopment and property transactions.