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Mass. is easing rules for some pollutants

Environmentalists bridle; developers call it overdue

Developers will be allowed to leave substantially more arsenic and lead in the soil deep below contaminated construction sites under new state rules, leading environmental advocates to accuse the Patrick administration of rolling back key public health protections.

The regulations, slated to take effect this spring, would double the amount of lead and increase by 150 percent the amount of arsenic allowed to remain in dirt 15 feet or more below the surface. Pollutants at those depths rarely present a public safety hazard unless they are dug up during construction, and the state Department of Environmental Protection says the changes are supported by recent scientific studies.

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Critics worry the rules will spur developers to build on contaminated land, known as brownfields, potentially creating plumes of toxic dust and sludge that can leach into waterways or disperse over a wide area if the soil is excavated and trucked elsewhere.

“These changes are deeply, deeply troubling,” said Sue Reid, director of the Conservation Law Foundation in Boston.

The regulatory shift — combined with other new rules, and the deep staff and budget cuts at the agency since the recession — threaten the environment in Massachusetts, she said.

“They’re gutting core environmental protections and selling it to the business community as cutting red tape,” she said.

State officials, however, said that the revised standards for a range of toxic substances reflect better data about what amounts are hazardous.

‘The reality is the standards we had before were overdoing it.’

Kenneth Kimmell, DEP commissioner, referring to the arsenic and lead limits 
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“The reality is the standards we had before were overdoing it,” said Kenneth Kimmell, commissioner of the Department of Environmental Protection, referring to the arsenic and lead limits. “You can always say that if you’re raising the standard with any chemical, you’re raising the risk. But that’s not how the science of risk assessment works.”

Kimmell said the current limits on lead in deeper soil are “not science-based,” and are “much lower than necessary for people who have exposure to soil that deep,” such as construction workers. The new levels approximate amounts of lead found in areas not designated as brownfields, he said.

For arsenic, he cited a 2008 California study that he said provided more precise toxicity values than previous research.

“Our data shows the level we are proposing fully protects public health, and this conclusion was peer-reviewed by independent scientists,” Kimmell said.

But environmental advocates say they are concerned that developers influenced the process, especially with representatives of the real estate industry sitting on a board that advised the Department of Environmental Protection on the proposed regulations.

“There’s always pressure from the development community to lessen the regulations,” said Jack Clarke, director of public policy and government relations at Mass Audubon. “That’s something that never lets up, and it’s something we guard against.”

He called it “baffling” that any rigorous study could conclude that lead or arsenic levels would be safe in greater concentrations. “I’m seriously concerned about this apparent step backwards,” he said.

In a letter sent to the environmental agency last May, Joseph Dorant, president of the Massachusetts Organization of State Engineers and Scientists, wrote of his “grave concerns relative to the direction the administration is taking in what appears a full-scale abandonment of [its] legally mandated responsibilities.”

Dorant, whose union represents state government scientists and engineers, said staff cuts have made it difficult for the agency to oversee compliance with many regulations and called recent rule changes “a huge step backwards in environmental protection.”

The possibility that more of the state’s estimated 925 brownfields will be developed, he and others said, raises concerns about what will become of the excavated soil.

As an example of the potential problems, Wendy Heiger-Bernays, an associate professor of environmental health at the Boston University School of Public Health, pointed to a recent uproar in Dartmouth, where residents have been protesting a proposal by a Brockton-based company to ship tons of contaminated soil to cap an old landfill on a working farm.

She noted the increasing challenge the state has in finding a place to deposit contaminated construction debris, harbor dredgings, and other detritus, and worried these materials could end up in communities or in other states where neighbors may be oblivious to the shipment of toxic substances.

“I worry about where those soils are going to go,” said Heiger-Bernays, who serves on the environmental agency’s technical advisory committees for toxicological and environmental health issues. “We should be concerned about this stuff being trucked around, the potential for dust particles getting spread around, and protecting communities from accepting this stuff and not knowing what it is.”

Kimmell responded by noting that the state has strict rules about how toxic substances are transported and where they can be buried. He also said that while developers may have to clean up less arsenic and lead, the new rules would require them to remove more of other toxic substances, including petroleum hydrocarbons; trichloroethene, a solvent used by dry cleaners; and vanadium, which is often found in urban fill.

The department has also proposed reducing allowable levels of some pollutants in topsoil — lead, cut by a third, and polychlorinated biphenyls, which became ubiquitous as coolants and insulating fluids, cut by half.

Kimmell acknowledged that the state has sought to reduce regulatory hurdles to development and would like to see more brownfields developed.

“There’s no question that we have tried to find ways to speed up our permitting, but we do that without weakening any of our environmental standards,” he said. “I categorically reject the idea that in finding ways to be productive, efficient, and decisive, that we have weakened environmental protections.”

Representatives of the real estate industry have applauded some of the regulatory changes, pointing to the state’s need for more housing and noting that much of the vacant land in urban areas requires environmental remediation.

“Environmental regulations usually get more stringent and complicated. It takes great courage for the department to actually lessen a standard,” said Greg Vasil, CEO of the Greater Boston Real Estate Board, a trade association that represents real estate brokers, owners, and developers. “These changes could make some projects more economically feasible.”

He added: “Environmental advocates have the arguments of the angels on their side, but they don’t help make stuff happen.”

Among the potential beneficiaries of the new regulations is Wynn Resorts, which has proposed building a casino on 34 acres of industrial wasteland in Everett that over the past century had become a repository for vast amounts of arsenic, lead, and other toxic substances that remain buried in a broad, empty field that borders the Mystic River.

On some parts of the contaminated land formerly owned by Monsanto Chemical Co., arsenic levels are more than 1,000 times the current limits and lead levels are more than 50 times current limits.

Officials representing Wynn Resorts, which has promised to spend as much as $30 million over about six months to clean the property, said the proposed regulations would have little impact on their plans.

“Any cost differential of the new regulations is marginal,” said Larry Feldman, a senior principal at GZA GeoEnvironmental, an environmental consulting firm in Norwood, who helped draft Wynn’s remediation plan and who sits on the environmental agency’s waste site cleanup advisory committee. “It’s not a big issue.”

But for many of those who live near the proposed casino, the potential development is disturbing.

In a letter to state environmental officials, members of the Charlestown Mothers Association urged them to nix the plan.

The group questioned whether Wynn Resorts’ cleanup would adequately remove the contaminants and worried that construction activity would produce dangerous dust particles of arsenic and lead that could be sent airborne and settle in the neighborhood, leach into the Mystic River, and get spread by trucks moving the dirt elsewhere.

“We have grave concerns about the public health impact on our community,” said Rebecca Love, a nurse practitioner and copresident of the association. “It would be negligent if they allow this to go through.”

David Abel can be reached at dabel@globe.com. Follow him on Twitter @davabel.
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