Compliance Advice at Default Tier 1D Sites

Most LSPs are probably aware that MassDEP continues to expend significant effort to bring default Tier 1D sites into compliance.  Many sites have been in the MCP system for years, and the level of information available in MassDEP files varies from barely any information beyond the oral notification to a significant amount of data, field work and site characterization.  MassDEP recognizes that the work required to bring a default 1D site to closure will vary: some may require little, if any, additional fieldwork while others may not even have begun field activities.  Therefore, in the event that you are contracted to provide LSP professional services to bring these sites back to compliance, MassDEP would like to remind you that MassDEP's position regarding response actions and associated submittals for all sites continues to be that the response actions and associated submittals must be conducted in accordance with MCP performance standards applicable at the time the actions are completed and the submittals are made to MassDEP.  Furthermore, the LSP Opinions must be supported by adequate data and information in proportion to the complexity of the site.  It is possible to support an RAO demonstrating attainment of applicable cleanup levels without current laboratory data, if sufficient field data and information already exists to support a technical argument/justification that the release has been adequately addressed and that an RAO can now be filed.  LSPs are encouraged to take into consideration all the existing information, such as laboratory data, field screening, field notes and/or observations in order to either support an RAO or to identify areas where data gaps may exist.  MassDEP has issued extensive guidance that addresses the use and interpretation of existing data when technical standards or approaches are improved before a site has reached closure, such as the use of historic TPH data at petroleum sites.  For additional information, please visit our web site at www.mass.gov/dep/cleanup/laws/policies.htm, or if you have questions about specific cases please contact the Deputy Regional Director at the appropriate regional office, or Paul Locke of the Boston office at 617-556-1160.

Failure to Notify

MassDEP entered into an agreement with the owner of a commercial property for a $8,630 penalty for Waste Site Cleanup violations.  MassDEP received an IRA status report for an unrelated release; embedded in that report was information about the discovery of a new release from an excavation of an abandoned underground storage tank, and the removal of contaminated soils that exceeded reportable concentrations.  The violations noted are: failing to notify MassDEP as required of the release of oil/hazardous material, conducting a Limited Removal action outside the 120-day regulatory timeframe set forth in the MCP; therefore, conducting a RAM without prior submittal of a RAM Plan.  ACOP-NE-07-3R002

Enforcement from Audits

MassDEP issued a unilateral penalty in the amount of $318,276.40 to a developer of residential condominiums for several Waste Site Cleanup violations at a site of a former jewelry manufacturer.  Prior to assessing the penalty, MassDEP issued a Notice of Noncompliance after an audit evaluation of a class A-2 RAO revealed it did not meet MCP performance standards.  Additional response actions are necessary until a valid RAO can be achieved.  MassDEP deemed the RAO in violation of the MCP, and thus, not valid. To date, the developer has not corrected the identified violations.  MassDEP is negotiating an agreement with the developer to complete required response actions at the site under a compliance schedule.   PAN-SE-07-3R-001

MassDEP entered into an agreement for a $25,000 penalty with a major gasoline retailer for Waste Site Cleanup violations.  An IRA intended to address a CEP condition was terminated without mitigating or eliminating the CEP condition.  Contaminants from the site have impacted wells that supply drinking water to residents in a condominium complex downgradient from the site.   Furthermore, the company submitted a Class B-1 Response Action Outcome (RAO) that did not comply with applicable response action performance standards.  The extent of the release and risks posed have not been fully defined.  In addition to paying the penalty, the company has agreed to perform required response actions under a compliance schedule until the CEP condition is abated and an appropriate RAO can be filed.  ACOP-CE-07-3R014

MassDEP entered into an agreement for a $13,760 penalty with the past owner of a commercial property for Waste Site Cleanup violations.  A Class B-1 RAO submitted for a property formerly used as a junkyard was determined to be out of compliance with requirements and was later retracted.  The former owner has agreed to perform required response actions and achieve an RAO in compliance with the MCP.  ACOP-SE-07-3A-001

Deadline Enforcement

MassDEP issued a $30,000 unilateral penalty together with an order to conduct required response actions to the owner of a property formerly used as a landfill.  The violation was for failure to perform response actions due to a release of oil and/or hazardous materials at the property.  The owner failed to submit a Release Notification Form, an IRA Plan and a completed Phase I and Tier Classification package by the first anniversary from notification of the release.  Previously, MassDEP issued a Notice of Noncompliance for the violations, but the owner has failed to comply.  PAN/UAO-SE-07-3T-003

LSP Enforcement

MassDEP entered into an agreement for a $2,000 penalty with a Licensed Site Professional (LSP), for Waste Site Cleanup violations.  Specifically, the LSP (a) made, and/or caused another person to make, false, inaccurate, incomplete or misleading statements in submittals filed with MassDEP pursuant to the requirements of M.G.L. chapter 21E and the Massachusetts Contingency Plan (MCP), and (b) rendered an LSP Opinion that did not comply with the requirements of the MCP.   The LSP, without performing an independent investigation, relied on an investigation prepared by others for a downgradient property being impacted by contaminants generated at the site, to conclude that the site did not pose a significant risk.  However, the report the LSP references in his/her submittal repeatedly indicates concentrations at the downgradient property exceed upper concentration limits with the potential to pose significant risk.  In addition to assessing the $2,000 penalty, the agreement specifies requirements that the LSP must follow in order to avoid future enforcement actions. ACOP-NE-07-3A003

Demand for Suspended Penalties

MassDEP has reached an agreement with the former owner of a commercial property for Waste Site Cleanup violations.  A previously suspended penalty of $15,000 is now due because of the failure to meet specified terms and conditions in a previous enforceable agreement. On February 28, 2006, the former owner agreed to a $30,000 penalty and to submit an RAO to document the cleanup of volatile organic compounds in soil at the site.  As agreed, the former owner then paid $15,000 with the remaining $15,000 suspended pending compliance with the compliance schedule for the RAO as specified in the agreement.  On January 19, 2007, the company sold the property and subsequently failed to comply submit the RAO. In addition to paying the remaining $15,000, the former owner has agreed to complete required response actions under a new compliance schedule.  ACOP-NE-07-3A012

MassDEP issued a Demand Letter to a municipality for a $500 suspended penalty due to its failure to complete response actions and comply with a previous agreement. Groundwater below the town garage has been contaminated by two separate petroleum releases. To date, neither of these two plumes has been properly delineated.   In addition, due to the presence of free product in groundwater, an IRA plan submitted required the product in the wells to be further evaluated and recovered on a monthly basis.  IRA activities appear to have been terminated. To date, the town has not completed the required work as previously agreed. ACOP-WE-07-3003-SUS