Authority, Mandate, and Funding for Audits

The Massachusetts Department of Environmental Protection (MassDEP) is required to audit response actions at disposal sites by M.G.L. Chapter 21E s. 3A(o).  This law mandates that MassDEP audit a minimum of 20 percent of all the sites that are required to pay annual compliance assurance fees.  Regulations that govern the audit process are contained in the Massachusetts Contingency Plan (MCP) (310 CMR 40.1100).  M.G.L. c. 21E and the MCP also give MassDEP the authority to inspect sites, collect environmental samples, and require that pertinent site information be submitted. 

What is the Goal of an Audit?

Audits ensure compliance with M.G.L. c. 21E and the MCP by verifying that response actions have been conducted according to applicable MCP requirements.  The audit focuses on determining whether human health, safety, public welfare, and the environment have been adequately protected by response actions conducted at the site.  Overall, the MassDEP audit program has been designed to ensure:

• Compliance with M.G.L. c. 21E, the MCP, and other applicable requirements.
• Consistency of audits within and across MassDEP regions.
• Credibility to maintain public confidence that response actions that have little or no direct MassDEP oversight are being performed in a proper and timely manner.  
• Commitment to achieving the 20 percent audit target in M.G.L. c. 21E.

How does MassDEP Conduct an Audit?

MassDEP conducts three different types of audits, which are referred to as a Level 1 Audit, Level 2 Audit, and Level 3 Audit, described below.  Each audit type provides varying degrees of review.  In general, MassDEP auditing activities include:

• Auditing sites, specific response actions, Responsible Parties (RPs), Potentially Responsible Parties (PRPs), or Other Persons (OPs). 
• Selecting sites for audit at random, or on a targeted basis. 
• Bringing sites back into the system whenever invalid Response Action Statements are identified. 
• Taking enforcement actions for violations at any time in the process.

What is a Level 1 Audit?

Level 1 (L1) Audits provide a screening review of documentation submitted to MassDEP (and located in MassDEP files) using standardized technical screening forms.  The technical screening helps MassDEP identify potential time-critical conditions, Immediate Response Action (IRA) conditions, or Imminent Hazards (IH) that may require immediate attention.  L1 Audits also:

• Identify sites or response actions for a targeted L2 or L3 audit and/or further MassDEP involvement. 
• Usually do not require specific follow-up. 
• Typically focus on the specific response action submittal, although supplemental information may or may not be reviewed. 
• When completed, are placed in MassDEP site files. 

L1 audit technical screening forms are response-action specific. The standard forms, in checklist format, are available at www.mass.gov/dep/cleanup/compliance/screen.htm

What is a Level 2 Audit?

Level 2 (L2) Audits evaluate specific on-going assessment and remedial response actions at active or conditionally closed sites, e.g., Remedy Operation Status (ROS) or an Activity & Use Limitation (AUL).  L2 Audits include: 

• A focused examination of pertinent documents in MassDEP site files. 
• An inspection of the site, collection of samples, or other actions as required. 
• Reasonable notice before the inspection, which is generally oral, but may consist of a written Notice of Audit (NOA) in some cases.  The NOA may include a request for information or a request to meet with MassDEP. 
• A written Notice of Audit Finding (NOAF), issued at the conclusion of the L2 Audit. 

What is a Level 3 Audit?

Level 3 (L3) Audits include a comprehensive evaluation of site response actions to ensure compliance with the MCP.  L3 Audits include: 

• An examination of documents in MassDEP site files. 
• A written NOA that may also include: (1) a request for information, (2) a request to meet with MassDEP, (3) a site inspection, (4) collection of samples, or (5) other actions as required. 
• A NOAF at the conclusion of the L3 Audit. 

When May a Site be Audited?

MassDEP selects sites for audit both randomly (Random Audit) and by criteria-specific methods (Targeted Audit) within the following timeframes:

• From the point of the initial release notification to 2 years after a Class A or B Response Action Outcome (RAO) Statement has been filed, MassDEP may select a site for a Random Audit. 
• From the point of the initial release notification to 5 years after a Class A or Class B RAO has been filed, MassDEP may select a site for a Targeted Audit. 
• MassDEP may, at any time, initiate/conduct a Random or Targeted Audit of any site subject to an AUL. 
• After 5 years MassDEP shall not initiate a Targeted Audit unless it has reason to believe that a significant risk may be present at the site and/or that it is noncompliant. 

What are My Responsibilities in an Audit?

Whether you are a RP, PRP, or OP you have two principal obligations during an audit:

• You must respond to any "Requests For Information" (RFI) from MassDEP pursuant to M.G.L. Chapter 21E s.s.  2, 4, and 8 and the MCP [(310 CMR 40.0165(1-5) and 40.1120(1)(b & c)]. 
• You must allow entry to the site by MassDEP staff, agents, and contractors so they can sample or inspect any records, conditions, equipment, practices, or property pursuant to M.G.L. Chapter 21E s.  8 and the MCP (310 CMR 40.0166).  MassDEP, however, must arrange such entry at reasonable times and give you reasonable notice (at least 24 hour prior notice). 

Am I Required to Engage the Expertise of Others?

You are responsible for responding to the audit and complying with any requests made by MassDEP.  However, you may engage or may be required to engage the expertise of a Licensed Site Professional (LSP) when responding to the audit.  If the audit requests additional follow-up information and/or directs you to submit a Post-Audit Completion Statement (P-ACS) to accompany the information requested, an LSP must be hired.  Additional information on the LSP profession and hiring LSPs can be found at the Board of Registration of Hazardous Waste Site Cleanup Professional's web site at http://www.mass.gov/lsp/lsphome.htm. 

How long will the Audit take?

Depending on the type of audit, it may take a single day or up to several months or more to complete.  The length of time will depend on audit findings and any necessary actions.  For example: 

• An audit could end quickly if a file review raises no questions and/or reveals no deficiencies or violations. 
• An audit could take several weeks to months to complete if information is unavailable, and/or deficiencies or violations are discovered. 

What May Happen if Violations or Deficiencies are Found?

If the audit uncovers violations or deficiencies, at the conclusion of the audit MassDEP will issue a NOAF, which may include a Notice of Noncompliance (NON) that may:

• Require you to correct those violations within a specified Deadline.
• Require you to correct those deficiencies within a specified Interim Deadline. 
• Require you to submit an Audit Follow-up Plan, which will require MassDEP approval before it is implemented. 
• Invalidate the submittal and require additional response actions to be conducted to return the site to compliance. 

Once these activities are completed, a P-ACS must be submitted to MassDEP together with the required documentation.  Bureau of Waste Site Cleanup (BWSC) Transmittal Form 111 must also be submitted for both the Audit Follow-up Plan and the Post-Audit Completion Statement, and can be found at http://www.mass.gov/dep/cleanup/approvals/trforms.htm. The audit is considered closed after the P-ACS, with the signatures of the RP, PRP, or OP and the LSP-of-Record, is submitted.  These response actions may also be selected for a random or targeted audit. 

Will MassDEP Take any Other Actions if Violations are Discovered?

MassDEP may also initiate enforcement actions for violations found at any time during or after an audit.  Enforcement actions may include issuance of a: NON, Notice of Intent to Assess a Civil Penalty, Notice of Enforcement Conference, Notice of Responsibility, Notice of Response Action, MassDEP Order, and/or referrals to the Attorney General's Office or Licensed Site Professionals Board.  MassDEP is not required to issue a Notice of Audit Finding if doing so might jeopardize enforcement actions at a site.  Additional information on MassDEP's enforcement procedures, policies, and cases can be found at http://www.mass.gov/dep/cleanup/enforcem.htm.

Who Should I Talk to if I Have Questions About an Audit Finding?

You may call or write the auditor or the contact person listed in the NOAF.  If you disagree with the findings of the NOAF, you may submit the matter to the BWSC Deputy Regional Director for investigation/resolution, and ultimately to BWSC's ombudspersons.  BWSC's Ombuds Program contact can be found at http://www.mass.gov/dep/about/organization/bwsctel.htm