May & June 2006 Level II Audits:

MassDEP completed Level II (LII) audits and issued Notices of Audit Findings (NOAFs) at 93 sites between May and June 2006.  Thirty-seven Notices of Noncompliance (NONs) were issued, together with MassDEP's findings.  LII audits of interest in May and June 2006 include:

1. MassDEP completed a LII audit of a previously audited Activity & Use Limitation (AUL) site to evaluate whether the requirements of the AUL were being met.  In addition to an inspection, the audit consisted of a review of corrective documents received by MassDEP since the previous audit.  MassDEP issued a Notice of Audit Finding (NOAF)/Notice of Noncompliance (NON), which concluded that response actions were not performed in compliance with the requirements of the MCP.  The inspection did not identify any violation of the obligation and maintenance requirements applicable to the AUL at the site at the time of the inspection.  Based on the legal review of the AUL corrective document, the Department noted that that property was sold after the recording of the AUL and the new property deed did not incorporate the AUL either in full or by reference as required.  Mass DEP required filing a Confirmatory AUL in accordance with 310 CMR 40.1085(4) and 40.1090, or a corrective deed or transfer deed with the required references, certified by an attorney.  Although it is the responsibility of both the former and the current property owners to correct the violation, only the current owner has the legal ability to sign and record the corrective documents.  (Westfield, RTN 1-11503, NON-WE-06-3A062, June 27, 2006) 

2. MassDEP completed a LII audit of soil excavation and management associated with building construction activities completed as a Release Abatement Measure (RAM).  In addition to an inspection, the audit included a review of an Addendum to the RAM Plan and a RAM Status report.  MassDEP issued a Notice of Audit Finding (NOAF)/Notice of Noncompliance (NON), which concluded that response actions were not performed in compliance with the requirements of the MCP.  The RAM Plan Addendum included a focused risk characterization that evaluated potential indoor air impacts from contaminated groundwater under the proposed buildings.  According to the RAM Plan Addendum, the proposed buildings will be constructed over and adjacent to petroleum-contaminated soils.  Separate phase petroleum (LNAPL) was present in a monitoring well located approximately 50 feet from the proposed building location, and was present in a former monitoring well that was located in the area underlying one of the proposed buildings.  MassDEP noted that the Method 3 Risk Characterization in the RAM Plan Addendum does not address vadose zone soils or separate phase petroleum as potential sources of indoor air contamination.  These evaluations are necessary in order to determine whether there is No Significant Risk to potential building occupants as required by 310 CMR 40.0019. As of April 4, 2006, 310 CMR 40.0942(1)(d) specifically requires that vadose zone soils containing volatile organic compounds and located within six feet horizontally or 10 feet vertically of a building be evaluated as a potential source of indoor air contamination.  Within a specified timeframe, MassDEP required submittal of a revised RAM Plan Modification with a focused risk characterization that fully evaluates potential impacts to indoor air in the proposed buildings. MassDEP recommended use of soil gas data for this evaluation.  Additional soil and groundwater data may also be necessary to evaluate conditions under the proposed buildings.  (Auburn, RTN 2-0000488, NON-CE-06-3A082, May 03, 2006)   

May & June 2006 Level III Audits:

MassDEP completed Level III (LIII) audits and issued NOAFs at 24 sites between May and June 2006.  Eighteen NONs were issued with MassDEP's findings.  LIII audits of interest in May and June 2006 include: 

1.  In June 1988, MassDEP was notified of the presence of gasoline constituents in groundwater at a former gasoline service station and a fuel oil storage/distribution and truck maintenance facility currently used for truck storage and maintenance.  Underground fuel oil, waste-oil, and gasoline storage tanks were identified as the source of contamination.  Response actions included the removal of the tanks, excavation and removal of 1,700 tons of soil, passive removal of up to 450 gallons of separate-phase petroleum, treatment of more than 1 million gallons of groundwater, and soil vapor extraction.  Soil, groundwater, and sediment conditions were evaluated throughout a sixteen-year period.  In October 2005, MassDEP received a Class A-2 RAO with the Method 1 risk characterization.  MassDEP issued an NOAF/NON concluding that the RAO submittal was not in compliance with MCP requirements and therefore was invalid.  MassDEP noted that groundwater was categorized as GW-2 and GW-3, but soil at the site was not categorized.  Soil concentration data, soil exposure points and exposure point concentrations were not provided in the RAO report.  The RAO report "Exposure to soil using Method 1 is assumed" and concluded "Soil samples have all tested within the applicable S-1 soil standard."   Based on this statement and one round of groundwater sampling data collected in August 2005, the Risk Characterization concluded that a condition of No Significant Risk had been achieved for the site.  Within a specified timeframe, MassDEP required submittal of a Tier Classification Extension and a plan to complete additional assessment to supplement a revised risk characterization and RAO submittal.  (Framingham, RTN 3-02654, 3-10090, &3-18439, ACOP-NE-05-3A024, May 16, 2006).

2. In October 2004, MassDEP was notified of the presence of lead in shallow soils above the applicable RCS-1 Standards of 300 mg/kg.  The site is located in a portion of a State Forest where lead-impacted soil was identified during a solid waste removal project conducted in June 2004.  Corrective Actions conducted under the Solid Waste Regulations included the excavation and removal of 40 cubic yards of solid waste and soil from a historical dumping site.  Post-excavation soil sampling conducted as part of the removal action identified the lead impacts.  No public water or sewer utilities are available within the State Park.  Assessment activities consisted of the collection of twenty additional surficial soil samples from in and near the excavation area for laboratory analysis.  Fourteen samples were collected within the excavation footprint to further characterize lead-impacted soils and six samples were collected outside the excavation area to assess background lead concentrations.  Lead concentrations in two of the soil samples collected within the excavation area exceeded S-1/GW-1 Standards, with an average lead concentration of 163 mg/kg.  The average background lead in soil concentration was 71 mg/kg.  In October 2004, MassDEP received a Class B-1 RAO Statement with a Method 1 risk characterization.  MassDEP issued an NOAF/NON concluding that the RAO submittal was not in compliance with MCP requirements and required additional response actions.  Through its audit, MassDEP noted that a) the submitted Method 1 risk characterization incorrectly classified groundwater as GW-3 only.  Due to the lack of public water supply access, the site meets the MCP definition of a Potential Drinking Water Source Area and must also be classified as GW-1; b) risk to potential environmental receptors was not evaluated as part of the submitted risk characterization; and c) lead is considered a bioaccumulating chemical in the environment and is present in shallow soils, therefore a Method 3 Stage I Environmental Screening was required to evaluate environmental risks.  In addition, MassDEP did not receive a response to its Request For Information, which was initiated as part of the audit.  Within a specified timeframe, MassDEP required submittal of a revised risk characterization and RAO that meets the requirements of the MCP, or retraction of the RAO.  (Mount Washington, RTN 1-15514, NON-WE-06-3A054, June 30, 2006).

May & June 2006 Helpful Hint:

Q: A due diligence evaluation for a prospective buyer revealed that current groundwater conditions were found to be inconsistent with the submitted RAO by a previous owner.  Contaminants identified in the RAO were found to exceed applicable standards, whereas the RAO was based on no standards being exceeded.  Can an RAO prepared for a previous owner be retracted, or is release notification required, or both? 

A: In the situation described, both a notification and retraction obligation would exist.  Specifically, per 310 CMR 40.0317(17), a party required to notify (see 40.0331) is required to report levels of oil or hazardous materials in excess of Reportable Concentrations at closed sites if such data would negate site closure.  Prospective buyers are not among the parties required to notify unless and until they purchase the property and become a current land owner.  With respect to retraction, only the party that filed an RAO (or any other submittal) can retract it.  The party that submitted the RAO should be informed of this new knowledge, and then must proceed to provide release notification and RAO retraction, as appropriate.  Any other party required to report (40.0331) must also notify if and when they obtain this knowledge.  Of course, any one can inform MassDEP of this situation (even if they are not required to notify), so that MassDEP can respond as appropriate.  Note that if the party that filed the RAO will not or does not retract the RAO, MassDEP can "invalidate" it.

May & June 2006 Observations and Notes:

• Of the 37 Level II Audit NOAF/NONs issued in May and June, MassDEP cited 129 violations of the MCP.  The most common violation cited was 310 CMR 40.0893, failure to submit Phase V Remedy Operation Status reports. 
• Of the 18 Level III Audit NOAF/NONs issued in May and June, MassDEP cited 37 violations of the MCP.  The most common violation cited was 310 CMR 40.0904(2)(a), failure to define the horizontal and vertical extent and concentrations of oil and/or hazardous materials in all evaluated media.
• A complete Audit Program Fact Sheet together with a recently updated compilation of Helpful Hints is located on MassDEP's Audit Program website at: http://www.mass.gov/dep/cleanup/compliance/audits.htm.