1. Following an LII Audit of a site with an Activity & Use Limitation (AUL), MASS DEP issued a NOAF/NON for failure to comply with the Massachusetts Contingency Plan (MCP). Filed at the Registry of Deeds in 2004, the LSP Opinion (attached as Exhibit C to the AUL) contains a general statement of limitations and conditions that limits the use of the opinion to "the sole and exclusive use of the client" and "authorized persons". However, the purpose of recording/registering the AUL is to notify current and future property owners of requirements and restrictions that they must abide by to manage residual contamination at the site. Therefore, limiting the LSP Opinion, and thus the AUL, compromises and diminishes the meaning and purpose of the AUL. In addition, the recorded AUL failed to meet requirements for AULs, specifically: a) the metes and bounds description of the property did not correspond with the referenced survey plan for the property; b) the AUL was not marginally referenced on the deed of the owner of the property; and c) a registry copy of the survey plan referenced in the AUL was not submitted to MASS DEP. Within a specified deadline, MASS DEP required an Amendment to the AUL that addresses the violations, or Termination of the AUL and submittal of a Response Action Outcome (RAO) Statement that does not rely on an AUL. (Clinton, RTN 2-0011387, NON-CE-05-3A062, May 25, 2005)
   
   
2. Following an LII audit of a groundwater extraction and treatment system, together with in-situ chemical oxidation, private well sampling, and groundwater monitoring operating under Remedy Operation Status (ROS), MASS DEP issued a NOAF/NON for failure to meet general provisions for managing remedial wastewater; failure to meet both Phase IV Remedy Implementation Plan, and Operation, Maintenance and Monitoring (OMM) requirements; and failure to meet general provisions for Immediate Response Actions (IRAs). MASS DEP's audit noted the following: a) the groundwater treatment system at the site is operated and maintained by the site owner, and the LSP-of-Record; neither has a currently valid Wastewater Treatment Plant Operator certification, as required; b) January 2005 status report presented remedial system effluent sampling results from samples that exceed the Massachusetts Groundwater Quality Standard for discharge to the groundwater aquifer, and did not document the replacement of the carbon system or a description of any measures taken to correct the detection of benzene in the remedial system effluent; c) 1994 Waiver of Approvals and a 1995 Withdrawal of Waiver of Approvals included a requirement to sample nine private water supply wells within 500 feet of the site every six months and to continually assess and evaluate the site if contaminants from the site have impacted private wells to determine if an IRA is required. These tasks were not performed. In 2004 the MASS DEP sampled the nine private water supply wells within 500 feet of the site. Laboratory analysis detected concentrations of methyl-tertiary-butyl ether (MTBE) in two private drinking water wells , and 1,2- dichloroethane in one of these wells. MASS DEP required a revised PHIV RIP and ROS submittal that addresses the violations identified and complies with the requirements of the MCP or submittal of an RAO. (Harvard, RTN 2-0000381, NON-CE-05-3A008, May 31, 2005)

Level III Audits for April, May, and June 2005:
MASS DEP completed Level III audits and issued NOAFs at 29 sites between April and June 2005. Twenty-two NONs were issued with MASS DEP's findings. Level III audits of interest between April and June 2005 include:

1. The site is located at a gasoline sales and service station property that is entirely paved and surrounded by both commercial and residential properties. A failed tank tightness test was reported to MASS DEP in April 1997 and an assessment-only Immediate Response Action (IRA) was conducted. The assessment included the installation of three monitoring wells in the vicinity of three on-site Underground Storage Tanks (USTs) and soil and groundwater samples were collected for analysis. Sampling identified petroleum contamination in the soil and groundwater. In October 1997, a Release Abatement Measure (RAM) was conducted, which included the excavation of the existing on-site USTs and the disposal of 800 cubic yards of contaminated soil encountered during the UST removal. Soil samples were collected for analysis from the limits of the excavation. Groundwater samples were not collected. In May 1998 MASS DEP received a Class A-2 RAO, supported by a Method 3 Risk Characterization. MASS DEP issued an NOAF/NON concluding that the RAO submittal was not in compliance with MCP requirements and therefore was invalid. Identified noncompliance included: a) failure to determine the nature and extent of the release (MASS DEP noted that although summary tables in the RAO identify maximum concentrations of soil and groundwater contamination at the site, the tables did not identify the location of the sampling points or monitoring points and the date these samples were collected. Groundwater at the site has been documented as flowing westward, toward abutting residential properties); b) failure to document that a risk to public welfare does not exist (MASS DEP noted that according to tables in the RAO, concentrations of toluene and xylene in soil exceed the Upper Concentrations Limits (UCLs). The Method 3 Risk Characterization states that soil samples “average” below UCLs and therefore, there is no risk to public welfare. However, the summary tables in the RAO list only the maximum concentrations detected in soil and do not list any other concentrations detected in soil samples or provide the calculations conducted to develop EPCs for comparison to UCL); c) failure to provide laboratory analytical data for soil and groundwater samples (MASS DEP noted that the RAO did not contain copies of analytical data for soil and groundwater sampling); d) failure to implement an AUL when making limiting assumptions about current and future site uses (MASS DEP noted that the risk characterization did not evaluate risks posed by future residential occupants of the property, but indicated that residential use is not a foreseeable future use. In addition, the risk characterization indicated that soil contamination below grade must remain inaccessible in order to maintain a level of No Significant Risk); and e) failure to identify the disposal site for which the RAO applies. MASS DEP required submittal of a RAO that meets the requirements of the MCP within a specified timeframe. (Fall River, RTN 4-12929, NON-SE-05-3A009, April 07, 2005).
   
   
2. The site has been used as a gasoline service station from 1960 to the present and is located in a mixed residential and commercial area. The site is located within the Zone II of a municipal water supply well, which is located approximately one-half mile away. In March 1995, a threat of underground storage tank (UST) release was reported to MASS DEP because of water gain in a gasoline UST. The UST failed a tank tightness test the following day, so it was emptied and taken out of service. In May 1995 three monitoring wells were installed as part of an IRA. Volatile organic compounds (VOCs) were identified in soil samples. Groundwater samples taken near a fuel oil tank contained significant levels of VOCs. In July 1995, three gasoline, one waste-oil, and one fuel oil UST were removed. A total of 1,334 tons of contaminated soils from the excavations was sent for recycling. In April 1996, a Tier Classification was submitted to MASS DEP and the site was classified as Tier 1C due to the presence of VOCs and MTBE above drinking water standards within a Zone II area. Phase II and III reports were submitted in March 1999. The initial Phase III Remedial Action Plan selected air sparging and soil vapor extraction as the remedial option. However, after a pilot study, this alternative was rejected due to the nature of the subsurface conditions. A Phase III addendum was submitted that identified monitored natural attenuation as the best alternative. The Phase IV Remedy Implementation Plan proposed monitoring groundwater for Volatile Petroleum Hydrocarbons (VPH) and geochemical indicators. Soil-gas monitoring was proposed to assess potential impacts of VOCs on the on-site structure. In August 2001, MASS DEP received a Class C RAO. MASS DEP issued an NOAF/NON, which determined that response actions were not performed in compliance with the requirements of the MCP. MASS DEP noted a failure to document the source, and horizontal and vertical extent of contamination in all evaluated media, and failure to complete a Phase III evaluation that results in the identification and evaluation of remedial action alternatives that are reasonably likely to achieve a level of No Significant Risk considering the oil and hazardous material present, media contaminated, and site characteristics. MASS DEP noted that the compound 1,4-dichlorobenzene (DCB) was detected at concentrations exceeding the applicable soil cleanup standard in seven of the twelve samples collected. However, no explanation was provided in either the Phase II or RAO reports regarding the source of this contaminant, and the extent of this compound at the site has not been determined. In addition, MASS DEP noted that although DCB in soil was determined in the risk characterization to pose a condition of Significant Risk to human health, the Phase III evaluation of remedial action alternatives only addressed groundwater, and not soil contamination . MASS DEP required submittal of a revised risk characterization and a Phase III addendum that comply with the MCP. (Williamstown, RTN 1-10789, NON-WE-05-3A058, May 04, 2005).