January, February and March 2007 Level 2 Audits

MassDEP completed Level 2 (L2) audits and issued Notices of Audit Findings (NOAFs) at 74 sites between January and March 2007.  Seventeen Notices of Noncompliance (NONs) were issued, together with MassDEP's findings.  L2 audits of interest between January and March 2007 include:

1.   MassDEP completed a L2 audit of an Activity and Use Limitation (AUL) filed in December 2000 for a commercial/industrial site 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 that the protective cover (i.e., building foundation, slab-on-grade, pavement) be maintained.  During a November 2006 audit inspection, MassDEP observed a crack in the building foundation at the corner of the building.  The structural stress crack on the building foundation appeared to be approximately ¼" thick and appeared to start at the bottom of the brick facing and terminated at or below the ground level.  MassDEP issued a Notice of Audit Finding (NOAF)/Notice of Noncompliance (NON) requiring that the crack in the building foundation be adequately sealed on the exterior and interior portions of the building.  The seal should be a polymer based, flexible sealant or other acceptable material as prescribed by the Massachusetts State Building Code.  MassDEP also required submittal of confirmatory documentation to demonstrate compliance.  (Newton, RTN 3-0001332, NON-NE-07-3A007, January 10, 2007) 

2.   MassDEP completed a L2 audit of a site in Remedy Operation Status (ROS), which consisted of weekly groundwater gauging and manual product bailing at three on-site monitoring wells.  MassDEP issued a NOAF/NON, which concluded that response actions were not performed in compliance with the requirements of the MCP.  Through its audit, MassDEP noted that the Operation, Maintenance and Monitoring (OMM) Plan had no provisions for evaluating plume migration, including groundwater/NAPL level measurements, and the continued monitoring of dissolved-phase petroleum concentrations in hydraulically downgradient monitoring wells, nor for monitoring of groundwater flow direction.  In addition, the selected remedial action of gauging and product bailing does not address residual soil or groundwater contamination that exists at the site.  The Method 1 Risk Characterization presented in the Phase II Report concluded that a condition of No Significant Risk does not exist for potential exposures to this residual contamination.  The current comprehensive response action, while only addressing the removal of non-aqueous phase liquids, is not likely to achieve a permanent solution.  Within a specified time period, MassDEP required submittal of a revised OMM Plan and submittal of a revised ROS Opinion that meets the requirements of the MCP or submittal of a ROS termination statement.  (Adams, RTN 1-14410, NON-WE-07-3A004, February 22, 2007) 

January, February and March 2007 Level 3 Audits

MassDEP completed Level 3 (L3) audits and issued NOAFs at 40 sites between January and March 2007.  Twenty-six NONs were issued with MassDEP's findings.  L3 audits of interest between January and March 2007 include: 

1.   In September 2002, MassDEP received a 120-day Release Notification for a release of 1,1-dichloroethene (1,1-DCE) above reportable concentrations in groundwater at a 2-acre parcel with a 3-story building occupied by several commercial and light industrial tenants.  The building is located in an area of mixed industrial, commercial and residential use.  Site investigation involved a total of thirteen soil borings, five groundwater monitoring wells and one soil vapor sample.  No impact to soil from chlorinated solvents (including 1,1-DCE) was detected.  1,1-DCE, 1,1-Dichloroethane and 1,1,1-Trichloroethane were detected in groundwater.  Maximum concentrations of 1,1-DCE in groundwater were forty-seven (47) micrograms per liter (µg/l).  Although 1,1-DCE was not detected in the soil vapor sample, a number of other volatile organic compounds were identified.  A Class B-1 Response Action Outcome (RAO) Statement was submitted to MassDEP in September 2002.  MassDEP issued an NOAF/NON concluding that the Class B-1 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 both Method 1 and Method 2 methodologies (Method 2) were used to conduct the risk assessment.  Site-specific information (one soil vapor sample with no measured 1,1-DCE) was used to determine that the Method 1 GW-2 standard for 1,1-DCE was not applicable at this site.  Technical justification (a 4-inch thick floor and a dilution factor between the vadose zone and indoor air) was used to determine that the PCE soil vapor did not pose a threat to indoor air.  Based on this information, MassDEP concluded that no source for the contamination was identified, the extent of contamination had not been defined, and since soil vapor sampling was conducted only once at an assumed crossgradient location, a conservative estimate of (potential) risk at the site may not have been evaluated.   Within a specified timeframe, MassDEP required submittal of a Tier Classification or Tier I Permit application package, if applicable, in order to continue response actions at the site, including further assessment of the soil vapor levels.  (New Bedford, RTN 4-17337, NON-SE-07-3A-001, March 14, 2007).

2.   The disposal site is located at a commercial property, currently used as an automobile dealership.  The dealership includes a single story building with two garage bays.  The release condition (and associated RTN) is a pre-1993 gasoline release from an Underground Storage Tank (UST).  In 2005, during remediation activities to remove contaminated soil, two additional USTs were found, which resulted in a 72-hour reporting requirement.  This new notification was assigned RTN 3-25100.  Remediation consisted of contaminated soil removal.  A Class A-2 RAO Statement was submitted to MassDEP in May 2006.  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.  The audit included a review of the RAO and related documents in the MassDEP's files.  Volatile Petroleum Hydrocarbons (VPH) and BTEX were detected in groundwater.  Groundwater contaminant concentrations at the source ranged from 81 µg/L (Benzene) to 7,700 µg/L (C9-C10 Aromatics).  MassDEP noted that it was not possible to fully understand the nature and extent of groundwater contamination near sensitive receptors because the direction of groundwater flow was not determined and only two monitoring wells were sampled: one to the northwest and adjacent to a residential property (21 - 26 µg/L of C5-C8 Aliphatics, only) and one to the east near a school.  In addition, the disposal site boundary for soil and groundwater was not indicated in either report text or figures.  Within specified timeframes, MassDEP required submittal of a Tier II extension, completion of all comprehensive response actions and submittal of an RAO or Phase V, which addresses the nature and extent of contamination including the collection of additional groundwater data.  (Peabody, RTN 3-4786 & 3-25100, January 18, 2007). 

January, February and March 2007 Helpful Hint

Q: Is it common practice that the annual compliance assurance fees (ACFs) are not billed annually but are billed after the site has been closed?  I received a bill for a recently closed site that included the years ending 2000, 2001, 2002 and 2003.

A: DEP does not intentionally wait until a RAO Statement is received before issuing a fee invoice. However in some instances, a fee invoice may be issued after an RAO is submitted and it may include more than one ACF.  This is a result of the volume of sites regulated under the Massachusetts Contingency Plan (MCP) and the internal requirement to review each site individually to determine the applicable fee category and rate, billable party, and mailing address.  Note also that DEP is required to issue fee invoices using the statewide accounting system (currently undergoing its first major redesign since 1995). 

The final fee invoice is often issued after receipt of the final RAO Statement since ACFs are billed retrospectively.  The fee category is based on the site classification as of the annual status date.  Also, a fee is billable for each year, including the year that the RAO Statement is filed.  Thus the last billable year (the year that the RAO is filed) is not "over" until the Annual Status Date.  ACFs should be budgeted for each billable year a site remains within the MCP system.  If you want to budget for fees on other sites and need to know the amount, please contact the staff within the Cost Recovery Fees & Revenue Section directly at (617) 292-5545 with the Release Tracking Numbers.  A searchable sites list is available on-line at http://www.state.ma.us/dep/bwsc/sites/report.htm.  General Fee information is also available at http://www.mass.gov/dep/bwsc/fees.htm.

January, February and March 2007 Observations and Notes

• Of the 17 L2 Audit NOAF/NONs issued between January and March 2007, MassDEP cited 27 violations of the MCP.  The most common violation(s) cited were: a) 40.0893, failure to submit Phase V Remedy Operation Status reports, and b) 40.1050(3), filing a Class C Response Action Outcome where Phase II, and if applicable, Phase III and/or Downgradient Property Status have not been determined.
  
  
• Of the 26 L3 Audit NOAF/NONs issued between January and March 2007, MassDEP cited 115 violations of the MCP.  The most common violations cited were: a) 310 CMR 40.0835(4)(f), failure to provide information and assessment findings in a Phase II Comprehensive Site Assessment report regarding the nature and extent of contamination, including a characterization of the source(s), nature, and vertical and horizontal extent of contamination at the disposal site, presence and distribution of any non-aqueous phase liquids, tabulation of analytical testing results, and, where appropriate, a characterization of background concentrations of oil and/or hazardous material at the disposal site, and b) 40.0956, failure to conduct a Substantial Hazard Evaluation for human, environmental and ecological receptors as described and required in the MCP. 

A historical compilation of all Audit Helpful Hints as well as past issues of "The Agency Speaks - Audit Update" column, the Audit Fact Sheet and copies of the Level 1 Audit Technical Screening Forms can be found on MassDEP's Audit Program website at: http://www.mass.gov/dep/cleanup/compliance/audits.htm.text