WHEREAS, public concern has been expressed over potential health risks associated with exposure to airborne asbestos fibers as a result of grading, excavation and construction activities located on property where asbestos is present in the soil;
WHEREAS, abatement of asbestos-containing material within buildings is currently regulated and enforced by the Bureau of Waste Prevention, Division of Air Quality, at the Massachusetts Department of Environmental Protection;
WHEREAS, the Massachusetts Department of Environmental Protection is obligated to enforce the Massachusetts Contingency Plan to address hazardous chemical and asbestos releases, but does not establish minimum handling and removal standards for properties known to have reportable levels of asbestos in the soil;
WHEREAS, the U.S. Environmental Protection Agency separately enforces federal environmental statutes when asbestos is found in large amounts and is associated with large-scale asbestos manufacturing or disposal;
WHEREAS, potential health threats from asbestos exposure which are not addressed by the U.S. Environmental Protection Agency can be addressed by reasonable mitigation and monitoring of construction and excavation on property where asbestos may be present in the soil;
WHEREAS, the Massachusetts State Building Code (at 780 CMR 3307.1, 3307.2 and 3313.1) requires that dust control measures be successfully employed on all construction and excavation sites, whether or not asbestos-containing soil is present; and further, pursuant to 780 CMR 101.4 and 780 CMR 3304.0, requires that all construction, reconstruction, alteration, repair, demolition, removal, use or occupancy of buildings, structures or premises be conducted to ensure public safety, health and welfare or in a safe manner and suitable protection for the general public be provided;and
WHEREAS, the City of Cambridge desires to adopt certain regulations to protect the health and welfare of the residents of the City by requiring minimum mitigation and monitoring practices on those properties which exceed the threshold for asbestos in soil established herein:
NOW THEREFORE, THE CAMBRIDGE CITY COUNCIL DOES ORDAIN AS FOLLOWS:
"Adequately Wet" means sufficiently mixed or penetrated with water to completely prevent the release of particulate material into the ambient air.
"Asbestos-contaminated soil" means soil which has been shown by certified laboratory analysis to contain at least one percent (1%) (normalized area) asbestos, using the Protocol for Screening Soil and Sediment Samples for Asbestos Content, most currently used by the U.S. EPA Region I laboratory and soil within thirty-five (35) feet of a sampling location in which asbestos has been detected on property shown to contain soil with at least one percent (1%) asbestos as defined above and soil the Commissioner reasonably expects may contain at least one percent (1%) asbestos based on data from an approved Asbestos Soil Sampling Plan.
"Asbestos" or "Asbestiform" means the following hydrated minerals: chrysotile (fibrous serpentine), crocidolite (fibrous riebeckite), amosite (fibrous cummingtonite-grunerite), fibrous tremolite, fibrous actinolite, and fibrous anthophyllite.
"City" means the City of Cambridge.
"Commissioner" means the City of Cambridge Commissioner of Health or his/her designee.
"Responsible party" means the owner of the property in question or an agent assigned by the owner.
"Soil-disturbing activities" means excavation, grading, tilling, or any other such activity that may cause release of fugitive dust. Disturbance shall not include direct-push or vibratory installation or extraction of piles, sheet pile, or wells, but shall include any excavation in the vicinity of such direct-push or vibratory installations, e.g. for the construction of pile caps. Disturbance also shall not include drilling of boreholes twelve (12) inches in diameter or less by hollow stem auger or similar method for the purpose of environmental evaluation or remediation.
Any property found by the Commissioner to contain asbestos-contaminated soil or documented to the Commissionerís satisfaction to have been the site of past industrialasbestoson-site handling, disposal, processing or manufacturing, shall be subject to the provisions of this ordinance.
3. Asbestos Soil Sampling Plan
Such a property, once determined to be subject to the provisions of this ordinance and prior to any soil disturbing activity, will require an Asbestos Soil Sampling Plan to be submitted for approval to the Commissioner at the Cambridge Public Health Department.
If no soil-disturbing activity is anticipated in asbestos-contaminated soil, the property will not be required to submit an Asbestos Soil Sampling Plan. However, all properties with asbestos-contaminated soil will receive a Notice of Asbestos-Contaminated Soil which will be maintained as a public record by the Cityís Inspectional Services Department and Public Health Department. For such properties on which no soil-disturbing activity is anticipated, no further action will then be required. Any subsequent soil-disturbing activity contemplated by the responsible party will make that property subject to the provisions detailed in this ordinance and will require the responsible party to submit an Asbestos Soil Sampling Plan as described herein. Each property where it is proven to the satisfaction of the Commissioner that asbestos- contaminatedsoil no longer exists shall have its Notice of Asbestos-Contaminated Soil rescinded.
The minimum requirement for an Asbestos Soil Sampling Plan is composite sampling to a depth of at least three (3) feet, or to the maximum depth of proposed soil-disturbing activities, using thirty-five (35)foot on-center sample locations distributed across the site in all areas where soil disturbing activities are proposed or anticipated. The Commissioner must approve the Asbestos Soil Sampling Plan before sampling at the site begins. Once completed, the data generated under the sampling plan will be submitted to the Commissioner and maintained by the Commissioner as a public record. Areas of asbestos-contaminated soil which are to be subject to soil-disturbing activities may require further characterization as determined by the Commissioner.
4. Asbestos Soil Management Plan
Upon completion of all required asbestos analysis provisions, the responsible party shall undertake precautions to prevent fugitive dust from being generated and/or escaping during any soil-disturbing activities. These measures must be detailed in an Asbestos Soil Management Plan.
This plan shall be submitted to the Commissioner for prior approval and shall include one or more of the following particulate dust mitigation and assurance measures:
assuring that the soil is adequately wet during soil disturbing activities;
erecting wind fences around the area containing asbestos-contaminated soil during the entire time that it is being disturbed;
conducting hourly air monitoring for particulate dust and continuous air monitoring for airborne asbestos around the perimeter of the soil-disturbing activity;
covering the site with a layer of clean fill, which must be of sufficient depth such that the proposed disturbance of the soil would occur in and affect only that clean fill layer;
erecting a permanent or temporary structure maintained at partial vacuum sufficient to contain all fugitive dust, with off gas from the evacuation system treated with HEPA filtration;
Each Asbestos Soil Management Plan will include a contingency plan for immediate work stoppage in the event that dust standards established in the Asbestos Soil Management Plan are exceeded in any two hourly field tests over a 24-hour period. Each Asbestos Soil Management Plan will also include a contingency plan for work stoppage in the event that the airborne asbestos standard established in the Asbestos Soil Management Plan is exceeded after continuous daily testing has been completed, no later than 24 hours after the cumulative daily samples have been collected. Work may recommence when containment measures deemed sufficient by the Commissioner to prevent further exceedences have been implemented. Any further exceedences will result in immediate work stoppage.
Prior to the final decision on the Asbestos Soil Management Plan, the Commissioner shall make available for public review for a period of 20 calendar days all data resulting from the Asbestos Soil Sampling Plan, the proposed Asbestos Soil Management Plan, and the Commissionerís draft decision. The applicant shall provide written notice of the availability of the documents to abutters and to any person who otherwise requests notice and shall provide copies of the soil sampling results, proposed Asbestos Soil Management Plan, and Commissionerís draft decision upon request. A copy of the documents shall be available for public viewing at the Commissionerís office and the main branch of the Cambridge Public Library. Public comments shall be submitted in writing to the Commissioner and must be received by the Commissioner prior to the end of the 20-calendar day period in order to be considered.
5. Access to Property
The Commissioner or his/her independent consultants shall have reasonable access to the property subject to this ordinance in order to assure that provisions of this ordinance and the Asbestos Soil Management Plan are being followed to the Commissionerís satisfaction. Affected parties, abutters, and interested residents or their designees (hereafter "observers") may have access to the property to observe testing and soil management activities and to conduct independent testing and analysis provided the following conditions are met:
the observer has obtained consent from the property owner in writing;
the observer shall comply with the property ownerís health and safety plan
and all operational protocols established for the property;
the observer shall possess appropriate OSHA certification; and
the observer shall not interfere with the efficient, expeditious, and safe
conduct of work on the property.
The following activities may be granted exemptions by the Commissioner from the requirements of this ordinance:
emergency repair of underground utilities;
maintenance of underground utilities;
soil-disturbing activity on residential property with no documented history of on-site industrial asbestos handling, disposal, processing or manufacturing..
A fee may be imposed on each responsible party by the Commissioner to offset the Cityís costs associated with the review of the Asbestos Soil Sampling Plan and the Asbestos Soil Management Plan, as well as the cost of the on-site compliance checks.
8. Coordination with City Departments
It is the intent of this ordinance that the Inspectional Services Department and the Community Development Department collaborate with the Commissioner and each other to ensure that the public health and safety is protected. To that end the Departments shall cooperate, share information and develop a coordinated protocol for implementing this ordinance.In addition, no building permit shall be issued for a site without prior approval of the Asbestos Soil Management Plan by the Commissioner.
9. Enforcement and Penalties
Any violation of this ordinance is punishable by a fine of up to $300. Each day that a violation continues may constitute a separate violation, and each one thousand square feet of total lot size at which a violation occurs may constitute a separate violation. This penalty may be enforced through criminal proceedings or non-criminally, by ticketing, as provided in G.L.c.40, s.21D. The Commissioner shall be the enforcing officer.
Activities in violation of this ordinance may be declared a nuisance. The Commissioner may, in order to remedy a violation of this ordinance, issue an immediate cease-work order as appropriate. In addition, the Commissioner may commence an action in court for the immediate abatement of any nuisance arising under this ordinance.
Any ten citizens may seek injunctive relief in the Superior Court pursuant to M.G.L.; Chapter 214, Section 7A to require action by the responsible party in accordance with the provisions of that statute.
The Commissioner may promulgate regulations to implement the provisions of this ordinance.