Summary of Comments on Certification of Well Drillers and Filing of Well Completion Reports, 310 CMR 46.00, and MassDEP's Responses

MassDEP received three comment letters and no comments at the public hearing.

1. Comment: The Massachusetts Department of Transportation (MassDOT) commented that the regulations should be revised to provide that as part of MassDOT's Salt Remediation Program's drinking water well replacement process, MassDOT should be allowed to commence drilling test wells without the need first to obtain a permit from the local board of health. Additionally, MassDOT commented that the regulations should provide, in connection with MassDOTs drinking water well replacement process, that MassDOT: 1) should be required to obtain only a single board of health permit, which would be for the drilled well constructed as the replacement well, but should not be required to obtain a board of health permit for the test wells; 2) may decommission the original replaced well and test wells under a single board of health permit; and 3) should be required to file with the state and local board of health a well completion report for only the replacement well, but not for any of the test wells. In support of its comments, MassDOT asserted that local board of health requirements along with certain of the requirements in the proposed state regulations add time and costs to its drinking water well replacement process.

Response: MassDEP proposed to adopt the regulations Certification of Well Drillers and Filing of Well Completion Reports, 310 CMR 46.00, as a slightly revised version of regulations that, until just recently, were within the Department of Conservation & Recreation (DCR), as 313 CMR 3.00. MassDEP proposed the regulations to effectuate an orderly transfer of the Well Driller Program from DCR to DEP. MassDEP's proposed revisions to DCR's version of the regulations were limited primarily to reflect the transfer of the Well Driller Program from DCR to DEP, which took effect on October 1, 2009.

MassDEP's proposed revisions to the regulations do not impose any new requirements to obtain a permit from the local board of health prior to the commencement of well drilling or in connection with well decommisioning. Likewise, the revisions do not add any new requirements relative to the filing of well completion reports. Accordingly, to the extent that MassDOT's practices have been consistent with the DCR Well Driller Program regulations, MassDOT would not need to alter its practices under the new regulations, with the exception of submitting the already required well completion reports and filing for already required annual well driller certification with DEP rather than with DCR. The requirement to submit well completion reports to the state not only is not new, but is in the implementing legislation. MassDEP is in the process of revising the Well Completion Report forms so as to streamline and facilitate their filing. The revised reporting format will, among other things, allow for information about certain groups of wells to be filed on a single report. With respect to board of health requirements, the state Well Driller Regulations are not intended to supersede applicable local requirements. In fact, it is primarily local boards of health, and not MassDEP, which oversee private drinking water wells.

2. Comment: The regulations should not require a Certified Well Driller for certain types of wells - namely, manually installed, small diameter wells used for sampling soil gases, sampling groundwater, depressurization or injecting remediation additives at 21E sites. Instead, such wells should be allowed to be installed by or under the oversight of a Licensed Site Professional (LSP). Many companies run by LSPs have been installing such wells for many years. For no reason in particular, the new regulations would end this practice. Requiring a Certified Well Driller to oversee installation of such wells would add costs to the cleanup of 21E sites, remove direct control from the LSP, and discourage innovation.

Response: Again, the proposed regulations do not add any new requirements for Certified Well Driller oversight of installation of wells at 21E sites or elsewhere. MassDEP has proposed to adopt the regulations with no revisions to the types of wells for which a Certified Well Driller is required. To the extent that to date, wells installed at 21E sites have been installed in accordance with the former DCR regulations, no change in such practices at 21E sites would be necessary.

Over the coming year, resources permitting, MassDEP intends to work with an advisory committee to evaluate the Well Driller Program and regulations with the intent of improving the program overall. As part of that review, MassDEP will take into account the above comments, along with others that were made during the program transfer process.

3. Comment: There should be performance based well construction standards for manually installed, small diameter wells used for sampling soil gases, sampling groundwater, depressurization or injecting remediation additives at 21E sites to prevent increased leaching through increased conductivity along the well casing or sand packing.

Response: The regulations state that guidelines for locating, drilling, installing, sampling, and decommissioning monitoring wells are contained in MassDEP's Standard References for Monitoring Wells and the regulations require those guidelines to be followed. As MassDEP moves the program forward, resources permitting, MassDEP intends to evaluate the need for additional well standards as well as for revisions to the current standards.

4. Comment: The regulations state that certification is not needed for wells installed for sampling soil gases or sampling groundwater if the installation tool is left in the ground less than 48 hours. The term "installation tool" should be defined; case law indicates that it includes the well casing. Under this exemption, the well's existence should not be restricted to 48 hours, if there must be a time restriction, it should be increased to two years, with an extension option. Two years is a typical site cleanup time.

Response: MassDEP agrees that the meaning of the term "installation tool" should be clarified. MassDEP does interpret the term to include the well casing. In connection with its ongoing evaluation of the Well Driller Program, and when it proposes to adopt further revisions to the regulations, MassDEP intends to clarify the term "installation tool." Further, during the program review process, MassDEP will take into account the comment regarding the extension of the 48 hour time period.

5. Comment: The regulations should contain a stated purpose.

Response: MassDEP agrees with this comment and when it proposes to adopt further revisions to the regulations, it intends to include language regarding the purpose of the regulations.

6. Comment: The new regulations rule out the use of hand held probes because manually installed, miniature injectable well points are not exempted from the requirement for a Certified Well Driller. This will halt the purchase of hand held probe equipment by Massachusetts companies. The miniature points, which can be left behind usually for up to a year on 21E sites after the installation probe is withdrawn, and are used for vapor monitoring in the unsaturated zone and for shallow groundwater monitoring, would be prohibited. These systems have not been linked to serious utility damage or hazardous material transfer in aquifer areas. Their small size cannot vertically transfer much mass of groundwater or gas even in the event of a sealing failure. Installers are required to notify Dig Safe and follow manufacturer's health and safety procedures. These systems are used in Massachusetts in a variety of applications. The exemption in the regulations from the requirement for a Certified Well Driller, which applies to "wells used on a temporary basis for the purpose of dewatering excavations, stabilizing hillsides or earth embankments, sampling soil gases, or sampling groundwater if the installation tool probe is left in the ground less than 48 hours" should be expanded to  provide: "sample soil gas or groundwater if the probe is left in the ground for less than 48 hours or a shallow miniature point with small diameter tubing installed with it and used for less than one year."

Response: As already explained above in response to other comments, the regulations do not add any new requirements for the use of a Certified Well Driller. The mere transfer of the regulations and program from DCR to MassDEP has not changed the circumstances in which or types of wells for which a Certified Well Driller is required. The regulations do not prohibit the types of wells the commenter has described. Instead, the proposed regulations, like the predecessor DCR regulations, require a Certified Well Driller when such wells do not qualify under the 48 hour exemption.

Last spring, MassDEP convened an ongoing advisory committee to evaluate the Well Driller Program and regulations. Over the coming year, resources permitting, MassDEP intends to continue to work with the committee and anticipates ultimately proposing additional regulatory revisions. During that evaluation process, MassDEP will revisit the comments that have been submitted to date.

310 CMR 46.00: Certification of Well Drillers and Filing of Well Completion Reports

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