This column focuses on noteworthy enforcement actions taken by MassDEP's Bureau of Waste Site Cleanup from October 2007 through December 2007.  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/curren03.htm.   

Non-Responder Compliance Initiative For Default 1D sites

MassDEP has launched a compliance initiative for sites that defaulted to tier 1D status as of December 31, 2007.  These sites, also known as non-responders, have not complied with required submittals at the one-year anniversary from notification. The compliance initiative is a one-time alternative to the traditional enforcement and penalty process. Non-responder potentially responsible parties (PRPs) have been notified that they have until June 30, 2008 to come into compliance with submittal requirements to demonstrate that required response actions are occurring in compliance with MCP requirements.  In essence, this approach represents a re-establishment of the compliance deadline with no associated penalties or traditional enforcement action.

Approximately 400 non-responder PRPs, representing 320 sites, are included in the initiative. The sites are a mix of residential/homeowner, municipal, small business and commercial/industrial properties. MassDEP launched this initiative because of the relatively large number of sites being targeted for compliance, and because the sites in question need to be assessed and closed out to ensure that potential unknown risks are addressed as expeditiously as possible. The Department has determined that a targeted effort that provides assistance and incentives will be more efficient and timely than traditional site-by-site enforcement for this large group of sites.

Furthermore, Chapter 21E now requires payment of annual compliance fees (ACFs) by all parties with potential cleanup liability, not just those actually performing response actions.  Fee regulations are pending for implementation of this statute change.  MassDEP is encouraging these tier 1D PRPs to take advantage of this one-time offer in order to avoid penalties and default ACF fees in the future.

The annual compliance fee for a site that has not been tier classified is $4,000 (or $2,000 for an owner-occupied 1 - 4 family residence). This initiative is an opportunity for non-responders to avoid these $4,000 fees and qualify for the standard $2,000 annual compliance fee (or $1,000 for an owner-occupied 1 - 4 family residence).  Entities against whom MassDEP is currently pursuing higher-level enforcement or sites that default to tier 1D status after January 1, 2008 are not included in the compliance initiative.

Non-responder PRPs who fail to come into compliance by June 30, 2008 will be prioritized for enforcement including penalties, and they will be subject to the $4,000 Annual Compliance Fees (or $2,000 for owner-occupied 1 - 4 family residences).

MassDEP has committed resources to provide targeted compliance assistance during the period of the initiative to those who may lack resources such as homeowners and municipalities. Each regional office has one staff person who will be the point of contact to answer calls and inquiries, as follows: http://www.mass.gov/dep/about/region/findyour.htm

Central Regional Office:  Denise Child at 508-767-2846

Northeast Regional Office:  Karen Stromberg at 978-694-3322 or Pegan Deering at 978-694-3382

Southeast Regional Office: John Handrahan at 508-946-2883

Western Regional Office: Michael Scherer at 413-755-2278

For questions about annual compliance fees, please contact the Fee Inquiry Center at 617-292-5545.  For general questions about this initiative, you may contact Kristin LaCroix at 617-348-4062.

Failure to Notify

MassDEP entered into an agreement for a $3,500 penalty with a transportation company for failure to notify of a 50-gallon diesel fuel spill at a warehouse following a motor vehicle accident.  Diesel fuel impacted paved surfaces in the loading dock area and a nearby stormwater drain.  In addition to paying the penalty, the company will complete the cleanup of the diesel fuel spill, will prepare an emergency response and oil spill plan for the five facilities it operates in the Commonwealth, and will retrain its employees on appropriate response to releases of oil and hazardous materials.  ACOP-WE-07-3009

MassDEP entered into an agreement for a $8,000 penalty with a transporter for waste site cleanup violations. The company failed to notify MassDEP of a sudden release of diesel fuel within 2 hours and failed to perform a timely Immediate Response Action. The release occurred at the company's facility and resulted from a leaking diesel saddle tank. Diesel fuel flowed onto the pavement and into a storm drain and traveled to a retention pond and a second pond. In addition to the penalty, the company has agreed to complete response actions, train its drivers and dispatchers on release notification and install spill response kits in its vehicles and at its facilities in the Commonwealth.  ACOP-CE-07-3E017

The Massachusetts Attorney General's Office, with assistance from MassDEP, entered into an agreement with a hydroelectric power generating plant for a $125,000 penalty.  The agreement resolves allegations that the company failed to notify of an oil spill that subsequently leaked into a nearby river.  One of two turbine units at the plant malfunctioned and leaked hydraulic oil into the river. The local fire department and MassDEP responded to reports of the oil sheen on the surface of the river and conducted an investigation, finding that the plant was the source of the oil sheen.  The complaint lodged by the AG's Office asserts that the plant violated Chapter 21E (of Massachusetts General Laws) and the MCP (Waste Site Cleanup regulations) by failing to notify MassDEP within two hours of the release of the oil from its plant.  The plant was also cited for submitting certain reports containing inaccurate and inconsistent statements concerning the time of notification to MassDEP and the amount of oil released or threatened to be released.  In addition to paying the $125,000 penalty, the company has agreed to develop and implement an environmental management system (EMS) for its plant.  The EMS must address organizational responsibilities and accountability of the company's staff and management, the tracking of compliance activities, and the scheduling of regular inspections at the plant.

Enforcement from Audits

MassDEP entered into an agreement for a $33,000 penalty with the owner of a gasoline station and abutting residential property.  The owner has agreed to complete required response actions under a compliance schedule. Petroleum products were first reported in the soil in 1992, and again in 1999, when additional product was found in the groundwater during the removal of four underground storage tanks. The current owner purchased the property in 2000, but failed to complete the cleanup and failed to respond to MassDEP's issuance of a notice of noncompliance in December 2006. MassDEP has agreed to suspend a portion of the penalty pending compliance with the agreement.  In addition, the agreement has a provision for stipulated penalties should any deadlines not be met.   ACOP-NE-07-3A033

MassDEP entered into an agreement for a $2,000 penalty with a metal finishing company for waste site cleanup violations found at the conclusion of a MassDEP audit of a Class C RAO and an Activity and Use Limitation (AUL).  Some of the violations include failure to demonstrate that a condition of No Substantial Risk has been achieved at the site, failure to perform an adequate site and risk characterization and reliance on an AUL that requires pavement to be maintained to manage risks when the pavement has not been installed.  As part of the agreement, the company has agreed to pay the penalty and conduct all required response actions under a compliance schedule.  ACOP-SE-07-3A005

Natural Resource Damages (NRD)

The Attorney General's Office and the Environmental Affairs Secretariat announced a settlement with a defense systems contractor who has agreed to pay $1 million to the Commonwealth over groundwater contamination allegedly caused by military munitions testing. The state claimed the contractor is responsible for contaminating groundwater that serves as a public drinking water resource, through decades of munitions testing conducted under Pentagon contracts on a military reservation located in the Commonwealth. The settlement resolves the state's NRD claims against the contractor, and is the largest state-only recovery for groundwater NRD ever obtained by Massachusetts.  NRD is a category of legal damages defined by the Commonwealth's and federal statutes as compensation for injury to, destruction of, or loss of natural resources, including the reasonable costs of a damage assessment.  This settlement covers the contractor's share of the cost of restoring injured resources to their baseline condition, compensation for the interim loss of damaged resources, and the reasonable cost of conducting damage assessment.

Final Decision

MassDEP's Commissioner issued a final decision relative to an appeal to a Unilateral Order previously issued to a family trust as a result of its continued failure to comply with cleanup requirements. Under the terms of the decision, the trust is required to file submittals that document response actions are taking place.  In addition, quarterly status reports will be submitted by the trust through the completion of response actions.   UAO-CE-07-3A001