This column focuses on noteworthy enforcement actions taken by MassDEP’s Bureau of Waste Site Cleanup from October through December 2005.  The statements of fact below are MassDEP allegations and have not necessarily been admitted to by the parties subject to enforcement.  Additional information about enforcement actions is available on MassDEP’s web page: www.mass.gov/dep/public/press/enforce.htm

Failure to Notify

• MassDEP entered into an agreement for a $15,180 penalty with a national package delivery company for failure to notify within the required 2-hour timeframe and for failure to perform appropriate response actions to contain and cleanup a fuel release. The release occurred when the delivery truck’s gasoline tank ruptured while backing into a snow and ice bank during a package delivery at a residence.  $9,000 of the penalty will be suspended as long as the company conducts a mock spill incident in the town where the spill occurred as a Supplemental Environmental Project (SEP). The SEP is an effort to heighten awareness of the need to properly manage releases of oil and/or hazardous materials and will be used as a practice incident for local emergency responders.  Following the mock incident, an evaluation will be conducted with local emergency responders to evaluate the response.  The company must pay $3,000 of the assessed penalty.  The remaining $3,180 will be suspended after one year as long as the SEP is completed and there is compliance with all terms of the agreement. ACOP-CE-05-3E020-SEP
  
  
• MassDEP entered into an agreement for a $8,630 penalty with a municipality for failing to immediately notify MassDEP of a release of 50 gallons of ferric chloride that occurred at a water pollution control facility. Although immediate steps were taken to clean up the release, MassDEP was not notified of the release until the following morning.  $7,630 of the penalty were suspended provided the City implements an Environmental Management System. The City has agreed to review and enhance its environmental compliance and workplace safety systems, provide routine training to employees on response to hazardous spills and other types of emergencies, and take additional steps to ensure the City’s compliance with environmental regulations for its water pollution control operations, including the water pollution control facility and twenty sewage pump stations located throughout the City.  ACOP-WE-05-3013-EMS

Enforcement from Audits

• MassDEP entered into an agreement for a $12,500 penalty with a municipality and a financial institution relative to the failure to timely address and document the potential for on-site releases in a Downgradient Property Status submittal and for failure to comply with the deadlines contained in a Notice of Audit Findings (NOAF)/Notice of Noncompliance (NON).  The agreement calls for the payment of a portion of the penalty and establishes a schedule to complete necessary response actions in order to come back into compliance.   MassDEP agreed to suspend $7,500 of the penalty provided all terms of the agreement are met.  ACOP-NE-05-3A030
  
  
• MassDEP entered into an agreement for a $1,500 penalty with a municipality for not investigating the possible intrusion of gasoline vapors into its middle and high school facility building.  During an audit of response actions performed to address a release caused from an underground storage tank that was removed from the site, MassDEP found that gasoline contamination in groundwater within 35 feet from the building exceeded standards intended to be protective of indoor air.  Monitoring wells were not installed close enough to the building to find the extent of the contamination or to assess the possibility that vapors could be seeping into the building.  Additional monitoring wells and a treatment system have since been installed and the release has been abated to levels below those posing a risk from vapor intrusion.  ACOP-CE-05-3A008

Deadline Enforcement

• Following non-compliance with a unilateral penalty and order (SPAN/UAO-SE-00-3T006) previously issued by MassDEP to the owner and operator (defendant) of a truck that caused a release of diesel oil to the environment, MassDEP referred the case to the Attorney General’s (AG’s) office.  The penalty and order were issued for failure to comply with the first year Tier Classification deadline. The defendants had not paid the penalty or appealed the assessment of the penalty or order and had failed to perform response actions or make the required submittals.  The case was brought to Superior Court.  In their Final Judgment dated November 16, 2005, the Court agreed that the defendants had violated MGL c 21E and the MCP and ordered the defendants to pay the Commonwealth a total of $71,000 within seven days. SUPERIOR COURT CIVIL ACTION NO. 04-088-A
  
  
• MassDEP entered into an agreement for a $20,000 penalty with a religious organization for violations discovered following an audit of a Response Action Outcome (RAO) and Activity and Use Limitation (AUL) filed for a release in one of its schools.  The organization failed to take the actions required by the NOAF/NON issued at the conclusion of the audit.  In addition to paying the penalty, the organization has agreed to a compliance schedule to terminate the AUL and implement required response actions.  MassDEP agreed to suspend $15,000 of the penalty pending compliance with the agreement.  ACOP-NE-05-3A029
  
  
• MassDEP issued a $30,000 unilateral penalty and order to the owner of a service and towing facility for failure to comply with a NON relative to the cleanup of an oil release.   The NON had been issued for failing to conduct response actions at the site in a timely manner. PAN-SE-3T006 and UAO-SE-3T006
  
  
• MassDEP entered into an agreement for a $43,984 penalty with a major fuel oil corporation for failure to perform response actions in compliance with requirements at one of its former service stations.   Despite the issuance of three prior NONs by MassDEP, the corporation failed to undertake appropriate removal actions, containment of gasoline vapors, and control of dissolved gasoline in the groundwater at the site in an expeditious manner. Although the release was identified in 1990, an active remedial system was not installed until 1999. The system that was installed in 1999 was ineffective, prone to frequent breakdowns, and required major modifications before it ran consistently. In addition, the system appears to have been improperly designed.  MassDEP believes that the failure to aggressively address the release resulted in the lack of a permanent solution and the uncontrolled migration of vapors and groundwater contamination downgradient from the property. On September 2, 2003, occupants of an adjacent building were evacuated by the local fire department due to the presence of gasoline vapors in the indoor air.  MassDEP agreed to suspend $10,000 of the penalty if the corporation complies with the terms and conditions of the agreement.   In addition to paying the penalty, the corporation has agreed to complete all needed response actions at the site by September 15, 2006.  ACOP-WE-05-3010

Consultant Enforcement

• MassDEP entered into an agreement for a $5,928 penalty with a waste site cleanup consulting firm for violations of the MCP.  The company had applied remedial additives near a drinking water supply without MassDEP's approval and without the required groundwater monitoring.  MassDEP discovered the violations during an audit of response actions for a gasoline release at a gas station where the company was providing consulting services.  ACOP-CE-05-3A019

Stipulated Penalties

• MassDEP issued a Demand for Payment of $30,000 stipulated penalties to a construction company for noncompliance with a previous agreement.  The agreement had called for the company to submit schedules and documentation to demonstrate cleanup of its yard.  ACOP-NE-05-4008-4STP