This column focuses on noteworthy audits conducted by MassDEP's Bureau of Waste Site Cleanup between October and December 2006. 

October, November, and December 2006 Level 2 Audits

MassDEP completed Level 2 (L2) audits and issued Notices of Audit Findings (NOAFs) at 88 sites between October and December 2006.  Thirty Notices of Noncompliance (NONs) were issued, together with MassDEP's findings.  L2 audits of interest between October and December 2006 include:

1.   An audit of Post-RAO Operation, Monitoring, and Maintenance activities and associated status report was filed in July 2006 for a gas station site.  The remedial action consisted of monitored natural attenuation (MNA) of several on-site and off-site groundwater-monitoring wells.  Based on the groundwater monitoring data presented in the status report, MTBE concentrations in monitoring well CS-3 have been increasing since November 2000.  MassDEP noted that this trend indicates a continuing uncontrolled source of MTBE or a new release condition at the site.  In addition, two activated carbon drums from 1995 were noted in the former remediation shed during the inspection.  MassDEP issued a Notice of Audit Finding/Notice of Noncompliance (NOAF/NON) requiring submittal of a revised RAO demonstrating that the source of contamination has been eliminated, controlled, or mitigated or if not supported, submittal of an RAO retraction and Phase II Scope of Work.  MassDEP also required submittal of documentation demonstrating removal and disposal of the remediation waste.  (Lanesborough, RTN 1-0000810, NON-WE-06-3A092, October 06, 2006) 

2.   An audit of an Activity and Use Limitation (AUL) filed for a commercial/industrial site in April 2004 to determine whether site activities and uses were consistent with the terms and conditions of the AUL, and whether the obligations and conditions required to maintain a condition of No Significant Risk were being met.  The obligations and conditions of the subject AUL required a protective cover consisting of eight-mil polyethylene sheeting or greater, installed beneath a "contiguous" concrete floor.  During an audit inspection, MassDEP observed a gap in the concrete floor of approximately one inch wide by three foot long located adjacent to a threshold door.  MassDEP issued a NOAF/NON requiring the gap in the floor to be adequately sealed with a masonry grout or other acceptable material as prescribed by the Massachusetts State Building Code, within a specified period of time, together with submittal of confirmatory documentation to demonstrate compliance.  (Waltham, RTN 3-22690 & 3-22298, NON-NE-06-3A206, December 22, 2006) 

3.   The audit of an Activity and Use Limitation (AUL) filed for a residential site in September 2003 was conducted to determine whether site activities and uses were consistent with the terms and conditions of the AUL, and whether the obligations and conditions required to maintain a condition of No Significant Risk were being met.  The AUL restricts those site activities that would disturb petroleum-contaminated soils located at 13-24 feet below grade.  Evidence of construction or excavation activities was not observed during the inspection.  However, violations were noted with regard to the filed AUL Notice, including failure to provide documentation to MassDEP that demonstrates that record interest holders were notified of the Notice of AUL; failure to provide registry copies of the survey plans referenced in the Notice of AUL; and failure to incorporate the AUL either in full or by reference into all future deeds, easements, mortgages, leases, licenses, occupancy agreements or any other instrument of transfer.  MassDEP issued a NOAF/NON requiring correction of the violations within a specified deadline.  (Barnstable, RTN 4-11672, NON-SE-06-3A052, December 27, 2006) 

October, November and December 2006 Level 3 Audits

MassDEP completed Level 3 (L3) audits and issued NOAFs at 43 sites between October and December 2006.  Thirty-two NONs were issued with MassDEP's findings.  L3 audits of interest between October and December 2006 include: 

1.   In May 2005 MassDEP received a Class A-3 Response Action Outcome-Partial (RAO-P) Statement supported by a Method 1 and 2 Risk Characterization.  A review of the RAO-P report, noted that the soil EPC for C₉-C₁₀ Aromatics is 970 mg/kg, exceeding the Method 1, S-2 and S-3 Soil Standards of 500 mg/Kg.  The report also stated that "The EPC for C₉-C₁₀ Aromatics also exceeds the S-2 and S-3 Standard."  MassDEP issued an NOAF/NON concluding that the RAO-P was not in compliance with MCP requirements and therefore invalid.  MassDEP noted that an AUL cannot be used in lieu of meeting any applicable cleanup standard, in this case the Method 1, S-2 and S-3 Soil Standard, in support of a Class A RAO-P.  MassDEP required submittal of a RAO Statement that meets the requirements of the MCP within a specified deadline.  (Canton, RTN 4-3004492, October 5, 2006).

2.   In October 2004 MassDEP received a Class A-3 RAO Statement supported by a Method 1 and 2 Risk Characterization.  A review of the RAO report, noted that the soil exposure point concentration for C₉-C₁₀ Aromatics in soil located between 4 and 10 feet below grade is 304 mg/kg, exceeding the Method 1, S-1 Soil Standard of 100 mg/kg.  The Activity and Use Limitation allows future residential use.  The soil category at a residence is S-1 for accessible and potentially accessible soil located at 0-15 feet below grade.  Therefore, the Method 1 Cleanup Standards must be met from 0-15 feet.  MassDEP issued an NOAF/NON concluding that the RAO was not in compliance with the MCP, does not support a conclusion of No Significant Risk (NSR), and is therefore invalid.  MassDEP noted that an AUL cannot be used in lieu of meeting any applicable cleanup standard, in this case the Method 1, S-1 Soil Standard for C₉-C₁₀ Aromatics, in support of the Class A-3 RAO.  MassDEP required submittal of either a revised RAO Statement that meets the requirements of the MCP or a Tier Classification to conduct further response actions within a specified deadline.  (Framingham, RTN 3-0023217, NON-NE-05-3A114, October 18, 2006). 

3.   In September 2000 MassDEP received a Phase III Remedial Action Plan (RAP) and Completion Statement.  According to the Phase III, the selected feasible remedial action alternative to achieve a permanent solution at the site was high vacuum extraction (HVE) and enhanced passive remediation using an oxygenate and/or microbial additive.  A Phase IV Remedy Implementation Plan (RIP) was received in September 2001.  The Phase IV RIP indicated implementation of the selected remedial action alternative would commence in September 2001 with a pilot HVE test.  A Phase IV Final Inspection Report and Completion Statement was not submitted.  In October 2004 MassDEP received a Class C RAO Statement indicating that a temporary solution had been achieved and that the site does not pose a substantial hazard.  A Method 2 Risk Characterization supported the RAO.  Groundwater concentrations at the site exceed Method 1 GW-2 and GW-3 standards.  A Level 1 soil vapor survey conducted in June 2000 was used to demonstrate no likely impact to indoor air at the site.  Modeling of groundwater data at the site was used to demonstrate no significant risk to the nearest downgradient surface water body and no substantial hazard to the downgradient Zone II.  Additionally, contaminated soils greater than 3 feet below pavement at the site pose a future significant risk if not restricted.  According to the RAO report, the HVE pilot test was completed on October 2001, and involved removing and treating 280 gallons of water from monitoring well number 3.  In December 2005, MassDEP was notified of the discovery of greater than one-half inch thickness of non-aqueous petroleum product on groundwater in monitoring well 3.  An Immediate Response Action (IRA) was approved to address the product condition.  MassDEP issued an NOAF/NON concluding that the Class C RAO was not in compliance with MCP requirements and required additional response actions.  MassDEP's review of all available information indicates that there is an insufficient basis for infeasibility of implementing the selected remedial action alternative identified in the Phase III and Phase IV RIP.  MassDEP notes that elevated dissolved groundwater concentrations of gasoline hydrocarbons as well as the 2005 appearance of non-aqueous phase gasoline on groundwater in the source area of the original 1979 gasoline release.  This indicates that the Class C RAO was submitted prior to feasible elimination, control or mitigation of all sources, including potential residual pockets of non-aqueous phase gasoline and highly contaminated soils in the original underground storage tank source area.  MassDEP required submittal of a Phase IV Final Inspection Report and Completion Statement, documenting implementation of the selected remedial action alternative; and retraction of the Class C RAO and submittal of a revised RAO or Remedy Operation Status (ROS) that includes supplemental information and data to address violations cited in the NON/NOAF.  (Uxbridge, RTN 2-0000788 & 2-0016043, NON-CE-06-3A158, October 17, 2006). 

October, November and December 2006 Helpful Hint

Q: In signing Form 1075 (Notice of AUL) as the LSP of record can I use an Out-of-State (non-Massachusetts) Notary?  How about a Justice of the Peace?

A: Nothing in the MCP specifies the use of a Notary from the state of Massachusetts.  So it is permissible to use a Notary from another state.  It is not permissible to use a Justice of the Peace. 

October, November and December 2006 Observations and Notes

Of the 30 L2 Audit NOAF/NONs issued between October and December 2006, MassDEP cited 43 violations of the MCP.  The most common violation cited was: 310 CMR 40.0874(3)(d)(3), failure to develop and include in the Remedy Implementation Plan (RIP) an Operation, Maintenance and/or Monitoring (OMM) plan that specifically included the type, frequency and duration of monitoring, and testing or inspections to ensure and confirm that the remedial action is performing as designed. 

Of the 32 L3 Audit NOAF/NONs issued between October and December 2006, MassDEP cited 64 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. 

2006 Updates to the Level 1 Audit Technical Screening Forms, are currently available on MassDEP's website at http://www.mass.gov/dep/cleanup/compliance/screen.htm.  Please use these forms to review submittals made in compliance with the April 2006 regulations. 

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.