The Massachusetts Department of Environmental Protection (DEP) recently released for public comment a draft of its proposed Guidance on Activity and Use Limitations (“AULs”) (pdf).  Recognizing that in almost every waste site cleanup there is some residual contamination that is either impractical or impossible to remove, AULs provide a way of ensuring that human health is adequately protected over time and through future changes in land use.  

DEP’s proposed new AUL Guidance revises guidance that’s been in place since 1999.  This proposed Guidance reflects lessons DEP has learned through the implementation of almost 2,000 AULs statewide since the Massachusetts waste site cleanup regulations were enacted.  Among other things, the proposed Guidance:  incorporates DEP’s 1999 and 2006 regulation changes; clarifies certain AUL requirements based on the most common AUL violations; de-emphasizes Grants of Environmental Restrictions while focusing on the much more commonly used AUL mechanism; incorporates certain 2008 Registry of Deeds formatting requirements for recorded plans, deeds and other documents; and makes the guidance more user-friendly by providing tables and expanded checklists. 

An issue already raised by public commenters centers on the proposed Guidance’s definition of a “reasonably foreseeable” land use.  The concern is that the proposed Guidance suggests that future residential use is “reasonably foreseeable” at almost all properties – even industrial sites.  Such an expanded definition would add greatly to the cost of many site cleanups.

An important cleanup issue not adequately dealt with in the proposed AUL Guidance is DEP’s recent, controversial change in its approach to vapor intrusion issues.  DEP’s proposed Vapor Intrusion Guidance (pdf) is being hotly contested (especially the perception that it will make it very difficult to achieve closure for cleanups), and it remains to be seen whether – and how – the two guidances can be harmonized.  Some commenters believe DEP would be better served by delaying the proposed AUL Guidance until after its proposed Vapor Intrusion Guidance is finalized.  Comments on the proposed AUL Guidance will be accepted until April 1, 2011, though it’s likely DEP will extend that deadline to more fully integrate its current thinking on vapor intrusion.

The proposed AUL Guidance demontrates that, while AULs are an integral part of DEP’s waste site cleanup program, the AUL process can involve highly technical real estate issues.  As DEP warns, “property owners are advised to consult an experienced real estate attorney when implementing an AUL.”