This column focuses on noteworthy audits conducted by MassDEP's Bureau of Waste Site Cleanup between July and September 2007 as well as providing general audit information.  Information on BWSC's Audit Program including a complete Fact Sheet is located on MassDEP's Audit Program website at: http://www.mass.gov/dep/cleanup/compliance/audits.htm. 

July, August and September 2007 Level 1 Audits

MassDEP completed Level 1 (L1) file review audits (using Technical Screening Audit Forms) on 528 response actions at sites between July and September 2007.  Although MassDEP does not issue Notice of Audit Findings (NOAFs) at the outcome of L1 Audits, available information is used to prioritize MassDEP's focus for Level 2 and Level 3 Audits. 

July, August and September 2007 Level 2 Audits

MassDEP completed Level 2 (L2) audits and issued NOAFs at 94 sites between July and August 2007.  Twenty-four Notices of Noncompliance (NONs) were issued, together with MassDEP's findings.  L2 audits of interest between July and September 2007 include:

1.         MassDEP completed a L2 audit of an Activity and Use Limitation (AUL) filed in June 1996 for a commercial/industrial site to determine if a) the site activities and uses were consistent with the terms and conditions of the AUL and whether obligations and conditions required to maintain a condition of No Significant Risk were being met, and b) to determine if corrective actions were complied with as previously required by MassDEP through a June 2002 audit interim deadline.  MassDEP issued a Notice of Audit Finding (NOAF)/Notice of Noncompliance (NON), which concluded that the site activities and uses were consistent with the terms and conditions of the AUL and the obligations and conditions required to maintain a condition of No Significant Risk were being met.  However, the interim deadline for corrective actions had not been met.  Specifically, the 1996 AUL: a) permits commercial use of the property, without clearly addressing residential use; b) prohibits exposing, excavating, or removing "oil-bearing soil" from the site "where shown on the attached Exhibit A-1." (the recorded AUL does not include an Exhibit A-1); and c) does not include a provision for the maintenance of pavement (if the presence of a barrier(s) (i.e. pavement or building floor) is necessary to maintain a condition of No Significant Risk, then the AUL must include an obligation that the barrier(s) must or shall be maintained).  In addition, activities and uses stated as being inconsistent with the AUL Opinion include a) "installing a well for drinking water purposes, unless the well water is tested periodically for gasoline components and total lead and such components are not present."  Pursuant to 310 CMR 40.1074(1)(d), an AUL shall not be used to limit access to and/or use of groundwater for a Class A or B RAO (This paragraph shall be deleted from the AUL); and b) "Although not likely, volatile gasoline components may at some future date migrate through the building's concrete floor, producing objectionable odors and an unhealthy atmosphere.  The property owner should monitor for these conditions and contact an LSP to evaluate if conditions warrant further assessment and/or remediation."  Exposure Pathway elimination measures, if necessary, should be in place prior to submittal of the AUL to the MassDEP in order to obtain a Permanent Solution. (This paragraph shall also be deleted from the AUL).  Also, the AUL was not referenced on the deed when the property was transferred.  Within a specified time period, MassDEP required correction of the noted violations.  (Medford, RTN 3-2366, NON-NE-07-3A082, July 5, 2007) 

2.         MassDEP completed a L2 audit of a remedial action at a site that currently consists of oxygen biosparging.  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 biosparge system was designed to address groundwater contamination and reduce the dissolved-phase contaminant plume in groundwater to concentrations that attain no significant risk or background.  A soil hot spot is located outside the radial influence of the current remedial biosparge system.  Thus, it is not clear how the remedial system as designed will address soil contamination and achieve a Permanent Solution.  ROS documents indicate that dissolved oxygen concentrations within the concentrated portion of the groundwater contaminant plume have increased since startup of the biosparge system.  The observed increase in dissolved oxygen concentrations in groundwater does not demonstrate that bioremediation of residual petroleum hydrocarbons in groundwater is occurring but rather demonstrates the successful introduction of oxygen to the concentrated portion of the plume.  Furthermore, groundwater elevations since system startup have not attained the groundwater elevations observed prior to system startup.  Dissolved phase contaminant concentrations located within the concentrated portion of the plume achieved or approached their maximums following a period of the highest site recorded groundwater elevations.  Therefore, it has not been demonstrated that the apparent decrease in dissolved phase contaminant concentrations is a result of biodegradation or the result of a lower groundwater table since system startup.  Within a specified time period, MassDEP required submittal of a revised ROS Opinion in accordance with 310 CMR 40.0893, or if the ROS cannot be supported, a ROS termination statement in accordance with 310 CMR 40.0893(6).  (Pittsfield, RTN 1-13347, NON-WE-07-3A088, September 26, 2007) 

Level 2 Audits were conducted at the following sites between July and September 2007:

July, August and September 2007 Level 3 Audits

MassDEP completed Level 3 (L3) audits and issued NOAFs at 42 sites between July and September 2007.  Thirty NONs were issued with MassDEP's findings.  L3 audits of interest between July and September 2007 include: 

1.         The two-acre property is currently occupied by a 19,000 square foot two-story building, which houses a commercial gym.  A former printed circuit board manufacturer operated on the property from the mid-1970s to the mid-1980s.  Reportedly, the manufacturer discharged chlorinated solvents into the septic system, leaching field and the wetlands behind the property.  In 1987, MassDEP assigned a Release Tracking Number to the site due to the presence of chlorinated solvents in soil and groundwater.  In March 1997, the site was classified as a Tier II disposal site.  In September 1998, MassDEP received a Class B-1 RAO for the site, which was retracted in November 1998 after a groundwater sample collected within 10 feet of the building revealed vinyl chloride exceedances of the applicable Method 1 GW-2 Standard.  In 1998, four indoor air samples were collected from various locations throughout the first floor (ground level) of the building for VOC analysis.  The building at that time was occupied by a carpet store, a pet grooming business and the commercial gym.  The sample collected from a "vacant room" contained the highest TCE concentration at 199 ug/m3.  Two additional groundwater samples were collected from underneath the floor of the "vacant room" for VOC analysis.   One of the samples contained TCE concentrations of 390 mg/l, which was above the upper concentrations limit (UCL) of 100 mg/l.  In February 1999, a Release Abatement Measure (RAM) was implemented to mitigate the vapor intrusion from the groundwater into the “vacant room”.  The RAM consisted of the installation of a vapor barrier (12 millimeter layer of polyethylene sheeting) and a passive vapor recovery system beneath the vacant room.  A Method 3 risk characterization evaluated potential risks posed only to a commercial employee working in the other offices (Carpet Room, Pet Grooming Office Area) and a future employee of the vacant room.  A future residential exposure scenario was not evaluated based on the assumption that implementation of an AUL would be required to eliminate any potential residential exposures.  A Class C RAO and an AUL was received in July 1999 and in November 2006, MassDEP received a submittal entitled: Periodic Review of the Temporary Solution For Class C Response Action Outcome.  MassDEP issued an NOAF/NON concluding that the Class C RAO was not in compliance with the MCP, does not support a conclusion of No Substantial Hazard (NSH), and is therefore invalid.  According to the AUL, site activities and uses inconsistent with the AUL Opinion include residential, condominium, school, daycare, a park, playground, and excavation of soils at a depth greater than three feet below ground surface.  Obligations and Conditions of the AUL include the maintenance of the passive sub-slab venting system and the vapor barrier, and annual air monitoring of the impacted area.  Also, any future building construction at the site must include the installation of a vapor barrier and a sub-slab venting system.  During its site inspection, MassDEP noted that there is no longer a wall separating the "vacant room" from the other portions of the basement.  Further, the entire building was recently renovated and is now solely occupied by the commercial gym.  MassDEP identified the following violations: a) the horizontal and vertical extent of groundwater contamination has not been defined including an assessment for the presence of Dense Non-aqueous Phase Liquid (DNAPL).  Considering the long historical use, past discharge practices and persistently high levels of chlorinated VOCs, there is a potential for DNAPL to be present; b) environmental receptors such as the abutting stream and wetland were not identified in the risk characterization; c) the Periodic Review was late, did not include an evaluation of potential hazard and source mitigation or control; d) the obligation in the AUL to collect indoor air samples on an annual basis was not conducted; and e) a RAM completion report was not submitted.  Additional follow-up actions were required.  (Tewksbury, RTN 3-1716, NON-NE-07-3A142, July 26, 2007).

2.         The site has been operated as an oil terminal since about 1960.  Approximately 4,600 gallons of No. 2 fuel oil were released to the surface in 1981, as the result of a broken valve.  Approximately 1,000 gallons of fuel oil were discharged from the secondary containment dike through an oil/water separator that services the above ground storage tank impoundment.  In 1995, the Department received a Licensed Site Professional (LSP) Evaluation Opinion and Tier II Classification Submittal.  The Opinion stated that additional response actions were necessary.  The site consists of two parcels of land divided by a railroad right-of-way.  Groundwater beneath the portion of the disposal site that is west of the railroad tracks is classified as NPDWSA.  Groundwater beneath the portion of the disposal site that is east of the railroad tracks was classified as PDWSA prior to 2001.  Although groundwater east of the railroad tracks was designated as NPDWSA by the Massachusetts Geographic Information System (MassGIS) in 2001, MassGIS redesignated the area as PDWSA in June 2006 after a review of US Census data.  In September 2000, the Department received a Class A-3 RAO, which stated that the Potential Drinking Water Source Area (PDWSA) portion of the disposal site qualified for redesignation as Non-Potential Drinking Water Source Area (NPDWSA) pursuant to Department guidance.  In December 2002, the Department issued a NON invalidating the September 2000 RAO, and explained that the Department's guidance (Policy WSC-97-701) did not apply to the site.  In November 2003, the Department received a Class C RAO and in October 2006 the Department received a Class A-2 RAO.  MassDEP issued an NOAF/NON concluding that the Class A-2 RAO was not in compliance with the MCP, does not support a conclusion of No Significant Risk (NSR), and is therefore invalid.  The RAO indicated that groundwater at the portion of the disposal site located east of the railroad tracks was classified as NPDWSA, and that the Massachusetts Contingency Plan (MCP) GW-3 Cleanup Statdards were applicable.  Because the groundwater was redesignated as PDWSA prior to the October 2006 RAO, MCP GW-1 Cleanup Standards apply to the area east of the railroad tracks.  Groundwater east of the railroad tracks did not meet the applicable GW-1 Cleanup Standards at the time of the RAO.  Within a specified timeframe, MassDEP required submittal of a Tier II Classification Extension Submittal prepared in accordance with 310 CMR 40.0560(7), and a schedule for performing additional response actions in order to continue response actions at the site in compliance with the MCP. (Springfield, RTN 1-00446, NON-WE-07-3A074, August 3, 2007).

Level 3 Audits were conducted at the following sites between July and September 2007:

July, August and September 2007 Helpful Hint / Q&A

Q: Since BWSC Form 113A is submitted via eDEP after recording an Activity & Use Limitation (AUL) does the signed and stamped form BWSC113A have to be included as an exhibit to and be recorded with the AUL?  Is not including BWSC Form 113A in the AUL to be recorded OK as long as the LSP opinion narrative (signed and stamped) is an exhibit to the AUL?

A: BWSC Form 113A must be printed, hand stamped and signed in ink, and included as an exhibit to the AUL for submission to the Registry for recording.  Once the AUL is recorded, there are two possibilities for submitting BWSC Form 113 through eDEP:  1) The signed and stamped BWSC Form 113A may be scanned, and included as part of an electronic version of the AUL, and the AUL can then be attached to BWSC Form 113 as an upload of supporting documentation; or 2) A copy of the AUL and the signed and stamped BWSC Form 113A can be submitted by mail with a copy of the eDEP submitted BWSC Form 113.  Note that with the exception of the Evaluation of Changes in Land Use, an electronically signed and stamped version of BWSC Form 113A is not required for submitting BWSC Form 113. 

July, August and September 2007 Observations and Notes

• Of the 24 L2 Audit NOAF/NONs issued between July and September 2007, MassDEP cited 43 violations of the MCP.  The most common violation cited was 40.0167, failure to submit required information within DEP Interim Deadlines. 
• Of the 30 L3 Audit NOAF/NONs issued between July and September 2007, MassDEP cited 98 violations of the MCP.  The most common violation cited was 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 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. 
• Finally, some additions to the Audit Update column were made in hopes that the regulated community would find them useful.  Please forward any thoughts, comments or suggestions to Thomas.Potter@state.ma.us.