1.   MassDEP completed a LII audit of an Immediate Response Action (IRA) remedial action that consists of in-situ chemical oxidation (ISCO) to treat petroleum-impacted soil and groundwater.  MassDEP issued a Notice of Audit Finding (NOAF)/Notice of Noncompliance (NON) for failure to obtain written approval from MassDEP before applying Remedial Additives within one hundred feet of a private water supply well.  During its July 2005 inspection, MassDEP noted that a private water supply well is located within 100 feet of one or more of the injection points used during a November 2004 ISCO event.  According to its records, MassDEP did not provide written approval for the application of Remedial Additives within 100 feet of a private water supply well, which is a Massachusetts Contingency Plan (MCP) requirement pursuant to 310 CMR 40.0046(3).  MassDEP determined that a violation of applicable requirements of the MCP occurred, but was corrected and/or does not warrant correction and no additional actions are necessary for this violation.  Although MassDEP did not require additional actions to address the identified violation, MassDEP may include this violation to establish a pattern of noncompliance if future enforcement actions are pursued. (Rehoboth, RTN 4-18415, NON-SE-05-3A045, October 18, 2005) 

2.   MassDEP completed a LII audit of the soil vapor extraction, air sparging, and bioremediation remedial systems operating under Remedy Operation Status (ROS) at a site, and issued a NOAF/NON for failure to meet operation and maintenance requirements of the treatment works.  During its August 2005 inspection, MassDEP noted that the process and instrumentation diagram of the treatment works was not being maintained in the logbook or on the treatment works.  The process and instrumentation diagram was subsequently installed in the treatment shed in October 2005.  MassDEP determined that a violation of applicable requirements of the MCP occurred, but was corrected and/or does not warrant correction and no additional actions are necessary for this violation.  Although MassDEP did not require additional actions to address the identified violation, MassDEP may include this violation to establish a pattern of noncompliance if future enforcement actions are pursued. (Auburn, RTN 2-00862, NON-CE-05-3A111, October 25, 2005) 

Level III Audits for October 2005:
MassDEP completed Level III audits and issued NOAFs at 19 sites in October 2005.  Sixteen NONs were issued with MassDEP's findings.  Level III audits of interest in October 2005 include: 

1.   Four gasoline underground storage tanks (USTs) were removed from a commercial property in 1992.  In 2003, an environmental site assessment was conducted on the property that identified petroleum contamination in soil and groundwater.  Between 2003 and 2005, a Limited Removal Action (LRA) and subsequently a Release Abatement Measure (RAM) was conducted to remove contaminated soil.  Groundwater contamination was assessed through groundwater monitoring.  In August 2005, MassDEP received a Class A-2 Response Action Outcome (RAO) Statement with a Method 1 risk characterization.  MassDEP issued an NOAF/NON concluding that response actions were not performed in compliance with the requirements of the Massachusetts Contingency Plan (MCP) and requested additional follow-up.  MassDEP noted that the risk characterization submitted for the subject site was not adequately documented.  Specifically, the RAO report indicates that exposure point concentrations (EPCs) for soil and groundwater were at or below Method 1 standards.  However, no EPCs were presented within the report nor was there a discussion of how the EPCs were calculated.  In addition, the Method 1 Risk Characterization did not demonstrate that a level of No Significant Risk exists for groundwater at the site.  According to a review of the groundwater analytical data, concentrations of C9-C10 Aromatics exceeded its applicable Method 1 standard for groundwater located within a GW-3 area.  MassDEP required submittal of a revised RAO and Risk Characterization that addresses the violations identified and that meets the requirements of the MCP, or retraction of the RAO and Tier Classification of the site by a specified date.  (Gloucester, RTN 3-23911, NON-NE-05-3A141, October 12, 2005).

2.   The site is located in a commercial/industrial area formerly improved by an industrial plant building.  Two USTs used to store petroleum products were formerly located beneath the concrete floor slab of the plant.  Both tanks were installed before 1963 and cleaned and abandoned in-place in 1985.  The plant building was razed in 1997, and the concrete slab over the tanks was removed.  After building demolition, a subsurface investigation identified reportable concentrations of petroleum hydrocarbons in soil located at depth adjacent to each tank.  Light, non-aqueous phase liquid (LNAPL), extractable petroleum hydrocarbons (EPH), and polychlorinated biphenyls (PCBs) were identified as contaminants of concern in soil and groundwater through subsequent assessments.  The presence of the petroleum contamination was attributed to the abandoned USTs, however, the source of the PCB contamination was not identified.  Approximately 11,300 tons of contaminated soils were excavated as a Release Abatement Measure (RAM) and transported for disposal.  Documents submitted to MassDEP did not indicate whether the abandoned tanks were disturbed during the work or whether the soils located beneath the tanks were assessed.  Subsequent groundwater monitoring indicated the recurrence of LNAPL and dissolved EPH and PCB contamination.  From July 2002 to the present, LNAPL thicknesses in one monitoring well has varied between 0.06 and 6.96 feet.  June 2005 gauging data indicated an LNAPL thickness of 2.89 feet.  In June 2002, MassDEP received a Phase II Comprehensive Site Assessment (PHII) Report and Phase III Evaluation and Remedial Action Plan (PHIII) Report.  Subsequently a Phase IV Remedy Implementation Plan and Completion Statement (Phase IV) Report, and Phase V Inspection and Monitoring (status) Reports were received.  MassDEP issued an NOAF/NON concluding that response actions were not performed in compliance with the requirements of the MCP and requested additional follow-up.  MassDEP noted that the Phase II Report identified the source of the petroleum contamination in soil and groundwater as the abandoned USTs.  Soils beneath these tanks were neither removed nor characterized.  LNAPL continues to recur in one monitoring well 20 years after the tanks were cleaned and filled.  Therefore, it appears that a continuing, uncontrolled source of contamination to groundwater exists at the site, and may be located either beneath one or both of the abandoned USTs (i.e., LNAPL saturation in vadose zone soil) or some other unidentified, uncontrolled source may exist.  The PCB contamination detected in soil and groundwater was not attributed to a source.  MassDEP required submittal of revised Phase II Report that meets the requirements of the MCP and if warranted a revised Phase III and Phase IV.  (Springfield, RTN 1-13027, NON-WE-05-3A091, October 19, 2005).

Helpful Hint
When evaluating the potential risks at a site that is impacted by contaminants from both on-property and upgradient sources, the risk characterization must calculate the cumulative risk from all contaminants on the site/portion of the site under evaluation.  Contaminants that are attributed to an upgradient source may not be eliminated from the exposure analysis, even if a DPS submittal has been filed. 

It is important to differentiate "what" must be done from "who" must do it.  A proper DPS filing relieves the downgradient property owner of the obligation to remediate the release that originated from the upgradient property.  While this action may eliminate the liability of that person to address those contaminants that have migrated onto their property, those contaminants are still physically present on their property, and therefore must be considered and addressed before closure (RAO) can be achieved.  Even if not responsible for the upgradient contaminants, if the downgradient property owner elects to assess and close out the portion of the site on their property, they must adhere to all MCP risk management and RAO performance standards, including the requirement to demonstrate source control per 310 CMR 40.1003(5).  If these requirements cannot be met, however, it may be possible to achieve a Class C RAO for the site/portion of the site on the downgradient property.