Compilation of excerpts of Audit helpful hints taken from the Audits and Enforcement Update column in the LSPA Newsletter, starting with the most recent.
- Remedial Additives
- Signatory Authority
- Recording BWSC Form 113A with AUL
- Risks to public welfare and UCLs
- Multi-year billing of ACFs
- Notary Requirements for AUL Forms
- Operation, Maintenance and Monitoring Plans
- Retraction and Notification at Site with RAO
- Retention of MCP Documentation
- Public Notification Changes
- Sediment Standards
- Risk Characterization at Downgradient Sites
- DPS Modification
- Audit Time Period for AULs
- Monitoring Submittals
- IRA Completion Statement
- Activity and Use Limitation (AUL)
- Phase II Reports: SOPs
- AUL Transmittal Form
- Problems with AUL Submittals
- Problems with Response Action Outcomes
- AULs Used to Control Access to Existing Underground Utilities
- Temporal Monitoring of LNAPL Thickness
- Downgradient Property Status (DPS)Submittals
- IRA/RAM Status Report Submittals
- Temporal Considerations for Groundwater Monitoring
- Downgradient Property Status (DPS)Submittals
- Comprehensive Response Actions
- Groundwater determination of GW-1
- VPH/EPH Reminder
- Oxygen Release Compound (ORC) Socks
- Downgradient Property Status (DPS) submittals
- Method 2 and 3 Risk Characterization Determinations
- Presenting Exposure Point Concentration Data
- RAOs Requiring AULs
- Minimum recommendations for identifying private water supplies
- Public involvement requirements for notification of AULs
- Soil Disposal Options
The MCP defines Remedial Additives at 310 CMR 40.0006 as:
any aqueous, gaseous or solid phase agent that is designed to treat or enhance the treatment of, soil and/or groundwater. The term shall include oxidizing agents, encapsulants, sequestering agents, non-pathogenic microbes, enzymes, nutrients, surfactants and anti-fouling agents used to inhibit microbial growth in remedial treatment systems and monitoring wells.
Remedial Additive By-products are defined as "any physical, chemical, or biological reaction by-product that results from the application or discharge of Remedial Additives to soil and/or groundwater."
The MCP has a number of regulations pertaining to remedial additives, starting at 310 CMR 40.0040. During the Remediation Waste training put on by BWSC and Bureau of Waste Prevention, we stressed that there are situations where the regulations require specific written approval from MassDEP/BWSC for the application of remedial additives.
310 CMR 40.0046(3), Requirement for Application of Remedial Additives Near Water Supplies, says:
- Within 100 feet of any private water supply well;
- Within 800 feet of any public water supply well or well field;
- Within 800 feet of any surface water supply used in a public water system or any tributary thereto; or,
- Within 50 feet of any other surface water body or any tributary thereto
The application of Remedial Additives is expressly prohibited, unless approved in writing by the Department. Presumptive approval does not apply in any of these cases. If you make such a proposal (particularly via e-DEP) and do not receive approval in writing, make sure you contact us before proceeding.
There are several performance standards that apply in all cases where Remedial Additives are proposed. 310 CMR 40.0046(1) allows that remedial additives may only be applied if the Remedial Additives and any by-products:
- will not erode or otherwise impair the functioning of soils or subsurface soils;
- will not infiltrate underground utilities, building interiors or subsurface structures;
- will not result in groundwater mounding within 2 feet of the ground surface
- will not result in flooding or breakout to the ground surface;
- will not result in concentrations of either the additive or remedial additive by-products in soil or groundwater that exceed Massachusetts Ground Water Quality Standards previously listed at 314 CMR 6.00 but now superceded by revised regulations at 314 CMR 5.00 50 feet downgradient from the furthest downgradient point of application and will not exceed MCP soil or groundwater standards at any point measured 50 feet or more from the furthest downgradient point of application;
- will not exacerbate existing conditions or prevent or impair the performance of remedial actions at the disposal site; and
- is otherwise performed in compliance with the MCP.
And finally, 310 CMR 40.0046(2) cautions that any person performing Response Actions involving Remedial Additives may only apply the Remedial Additives without a permit only if the discharge is also exempt from any other permitting requirements described under 314 CMR 5.05.
By Gail Eckert - WERO/Audits
When filling out a Notice of Activity and Use Limitation (AUL), it is critical that you provide the correct documentation to prove that the person or person(s) signing the AUL have the legal authority to sign the document on behalf of the corporation, trust, partnership, etc. This documentation of "signatory authority" must be attached to the AUL when it is filed at the appropriate Registry of Deeds. [310 CMR 40.1071(2)(c) and 310 CMR 40.1074(2)(c).]
If the owner of the parcel subject to the AUL is an entity, rather than an individual, then documentation of the signatory authority of the individual signing the AUL must be attached as an exhibit to the AUL. Entities include, but are not limited to:
- Limited Liability Corporations,
- Limited Liability Companies,
- Limited Partnerships,
- Towns (municipalities), and
Signatory authority documentation must also be attached as an exhibit to the AUL if the individual signing the AUL is signing as a trustee, executor, or attorney in fact.
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.
Q: What is the most appropriate way to evaluate risks to public welfare as they pertain to the Upper Concentration Limit (UCL) comparison of the data. The MCP can be read as recommending a comparison of the EPC to the UCLs or comparing the data on a point-by-point basis to the UCLs. How does DEP recommend comparing data to the UCLs?
A: UCLs are compared to the AVERAGE contaminant concentration (excluding hot spots), and NOT to individual data points. Per 40.0926(3), EPCs are calculated as the average concentration (excluding hot spots) of contaminants contacted by a receptor at the Exposure Point, for comparison to Method 1 or 2 standards and/or use in a Method 3 risk assessment. When determining compliance with UCLs, identical methods are used to establish this "average" concentration [e.g., the most commonly used technique is listed at 40.0926(3)(b)(2)]. However, this average concentration is not referred to as an "Exposure Point Concentration" because UCLs address future risks to public welfare and the environment, and are independent of "exposure" to biological receptors (human/eco).
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://public.dep.state.ma.us/SearchableSites2/Search.aspx . General Fee information is also available at http://www.mass.gov/eea/agencies/massdep/cleanup/grants/waste-site-cleanup-fees.html.
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.
Q: 310 CMR 40.0891(3) states that an operation, maintenance and/or monitoring (OMM) plan shall be updated if modifications to remedial systems or programs are made. How should these modifications be made? Is submittal of a letter stating what was changing and why acceptable or should it just be mentioned in the next status report? If not part of the status report, is there a BWSC form for such a submittal?
A: Pursuant to 40.0891(3), "Operation, maintenance and/or monitoring activities shall follow the OMM plan developed as part of the Remedy Implementation Plan (RIP) in Phase IV under 310 CMR 40.0874(3)(d)..." Therefore, modifications to the OMM plan must occur as a modification of the RIP, using form BWSC108, Box 10 - Submit a Modified Phase IV Remedy Implementation Plan
Q: A due diligence evaluation for a prospective buyer revealed that current groundwater conditions were found to be inconsistent with the submitted RAO by a previous owner. Contaminants identified in the RAO were found to exceed applicable standards, whereas the RAO was based on no standards being exceeded. Can an RAO prepared for a previous owner be retracted, or is release notification required, or both?
A: In the situation described, both a notification and retraction obligation would exist. Specifically, per 310 CMR 40.0317(17), a party required to notify (see 40.0331) is required to report levels of oil or hazardous materials in excess of Reportable Concentrations at closed sites if such data would negate site closure. Prospective buyers are not among the parties required to notify unless and until they purchase the property and become a current land owner. With respect to retraction, only the party that filed an RAO (or any other submittal) can retract it. The party that submitted the RAO should be informed of this new knowledge, and then must proceed to provide release notification and RAO retraction, as appropriate. Any other party required to report (40.0331) must also notify if and when they obtain this knowledge. Of course, any one can inform MassDEP of this situation (even if they are not required to notify), so that MassDEP can respond as appropriate. Note that if the party that filed the RAO will not or does not retract the RAO, MassDEP can "invalidate" it.
Q: How long should property owners retain MCP documentation such as Response Action Outcome Reports, Limited Removal Action Reports and/or Activity & Use Limitation records?
A: Record retention requirements are specified in the MCP at 310 CMR 40.0014, which mandates retention for a minimum of 5 years, or, if structures are in place to maintain a level of No Significant Risk, for the design life of those structures.
Beyond this "mandated" retention time, it would be advisable to maintain records for as long as practicable, because such information may provide valuable historical reference for future property buyers or for other purposes. Note that MassDEP retains summary information in its files on site cleanups indefinitely.
The April 2006 revisions to the MCP include various clarifications and changes to the requirements for performing public notification, as outlined in 310 CMR 40.1403. Paragraph (3)(e) of this section identifies the requirements for sending a notice of availability of all Phase Reports to city or town officials. LSPs should note, however, that this requirement does not apply to semi-annual status reports submitted to the Department for sites in Phase V, Remedy Operation Status, or Class C-1 Response Action Outcome. There is no need to send notification letters to public officials, or to DEP, when these reports are submitted.
What is the most appropriate way to evaluate risks to public welfare and the environment with respect to an Upper Concentration Limit (UCL)? Should you compare a calculated Exposure Point Concentration (EPC) to the UCL or compare the data on a point-by-point basis to the UCL?
UCLs are compared to the AVERAGE contaminant concentration (excluding hot spots), and NOT to individual data points. See 40.0926(3). EPCs are calculated as the average concentration (excluding hot spots) of contaminants contacted by a receptor at an Exposure Point, for comparison to Method 1 or 2 standards and/or use in a Method 3 risk assessment. When determining compliance with UCLs, identical methods are used to establish this "average" concentration [e.g., the most commonly used technique is listed at 40.0926(3)(b)(2)]. However, this average concentration is not referred to as an "Exposure Point Concentration" because UCLs address future risks to public welfare and the environment, and are independent of "exposure" to biological receptors (human/eco).
Massachusetts does not have formally promulgated generic "cleanup" standards for sediments. Instead, cleanup requirements are based on a site-specific ecological risk assessment process articulated in the MCP. This process, however, is designed to be flexible, and allows for a series of "screen in" and "screen out" possibilities. MassDEP has published screening values for some sediment contaminants.
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.
Once MassDEP grants Downgradient Property Status (DPS) for a location, does the DPS remain for the site after the property is sold to a new owner or does the new owner need to re-file?
DPS goes with the person, not the property. However, if a property is sold, the new owner can "obtain" the DPS from the previous owner, by submitting a DPS Modification pursuant to 310 CMR 40.0187, using Transmittal Form BWSC115 .. Note that the new owner (transferee) fills out Form 115, while the previous owner (transferor) fills out Form 115A.
It has come to DEP's attention that there may be misinformation within the regulated community regarding the time period for audit of a site with an Activity & Use Limitation (AUL). DEP's audit period for sites with AULs has never been limited. Specifically, in 1993, the MCP provided a 5-year time period (from date of RAO submittal) to initiate a random or targeted audit for any site including sites with AULs. MCP changes enacted in 1997 added a provision to "initiate at any time Random Audits to determine compliance with Activity and Use Limitations in effect" at a site. This provision was again modified in October of 1999 to include either a Random or Targeted Audit of any site subject to an AUL. Therefore, at no time since 1993 has a site with an AUL been limited for audit by an audit time period.
Furthermore, the Brownfields Act (Chapter 206 of the Acts of 1998, Section 43) requires that DEP conduct targeted audits of all sites for which an AUL has been recorded or registered. In addition, DEP conducts periodic reinspections of AUL sites to ensure compliance with the AUL obligation and maintenance conditions.
DEP staff have noted that semi-annual monitoring submittals are being received that indicate (either in the text, on the report cover, or on the transmittal form) that the subject site is in Remedy Operation Status (ROS), yet there is not an ROS Opinion on file to indicate that the requirements for ROS have been met at the site. The requirements for entering ROS were outlined in the August 2004 edition of LSPA News. If you are managing sites in ROS, particularly if you are a successor LSP, it may be wise to review the files of those sites to verify that an ROS Opinion was filed, and that the conditions for ROS are still being met at the site. Otherwise, absence of an ROS Opinion may be discovered during an audit, resulting in possible enforcement action.
DEP has encountered several instances where it appears that an IRA may not have been completed, and thus the site would be in violation of the MCP. Please remember to submit an IRA Completion Statement (BWSC105) using the Release Trucking Number (RTN) assigned to the IRA condition. An IRA Completion Statement is required, even if you linked the RTN to the RTN of a Tier Classified site with ongoing comprehensive response actions. Otherwise, DEP will assume that the IRA is ongoing and would expect to receive periodic status reports associated with the IRA RTN. DEP is selectively targeting for enforcement, sites in noncompliance with IRA requirements.
When filing an AUL, remember the following:
- Form BWSC-113A (the last two pages only) must be attached as an exhibit to the AUL document to be recorded and/or registered with the Registry of Deeds and/or Land Registration Office, as noted at the bottom of Box B of the form.
If documentation of signatory authority is required, that documentation also must be attached as an exhibit to the AUL and recorded/registered. If there is a previously recorded authority document, include a copy of that document.
- In order to show the relationship of the AUL Area to the disposal site boundaries, both boundaries must be clearly labeled on Exhibit B.
- An LSP Stamp is required on the signature page of Form 1075, the Opinion in Exhibit C, and Form BWSC-113A.
- Copies of plans obtained from the Registry, bearing Registry information, Plan Book #, Plan Book page, date recorded, etc. and /or Land Court Plan # of all plans referenced in the AUL must be provided to DEP within 30 days of recording the AUL.
- A time-stamped copy of the AUL may be used to document that the AUL was presented for recording at the Registry of Deeds to meet the requirement of 310 CMR 40.1056. However, a Registry-certified copy of the entire document bearing the registrar's stamp on the last page must be provided to meet the requirements of 310 CMR 40.1074. In addition, note that the certification of ownership required in the regulations has been incorporated into the current version of Form 113, in Box G. Do not forget to include all supporting documentation (copies of notification, waivers).
While detailed Standard Operating Procedures (SOPs) for field activities may, in some cases, be an appropriate attachment to a work plan or Phase II Scope of Work (SOW), it is not necessary to attach these SOPs to subsequent submittals describing the work that was performed. If the SOP was modified during the course of the investigations, the modified SOP may be attached; otherwise, reference to the previous submittal may be sufficient.
Please be aware that an AUL Transmittal Form, BWSC-113, must accompany all AUL submittals. This includes AUL Ratifications and AUL Amendment and Ratifications being made for AUL corrections required on AULs submitted on or before October 29, 1999. The transmittal form, which is dated May 1995, does not include check blocks for each type of AUL corrective document. For all corrective documents, check the block for an Amended Notice of Activity and Use Limitation in Part B. You may cross out the reference to 40.1084(1) if it is not applicable to the document being submitted. For all terminations, check the third block. If the submittal is a partial termination or release, please type this into the box for Part B. If the AUL submittal was required by a NON issued as part of a Notice of Audit Findings, Form BWSC-111 is also required.
Completing the DEP transmittal form for all submittals will ensure that your submittal is on file at DEP. In addition, prior to submission of any AUL,
DEP strongly recommends completion of the AUL Compliance Assistance Checklist located at this web page
Recent audits of Activity and Use Limitation (AUL) submittals have revealed that the majority of AULs are not being submitted in accordance with the MCP requirements for filing AULs with the Department. 310 CMR 40.01074(4) lists the documents that should be submitted to the Department along with the certified copy of the AUL. A Registry copy of the required survey plan(s) referenced in the AUL, bearing the plan book/plan number(s), must be submitted to the Department within thirty days of recording the AUL. If the property subject to the AUL is unregistered land, a Registry copy of the owners deed bearing marginal reference to the AUL, as required by 310 CMR 40.1074 (3), must also be submitted to the Department. The filing requirements noted in 310 CMR 40.1074(4) are in addition to the public notice requirements set forth in 310 CMR 40.1403(7) and the requirements for the content of an AUL set forth in 310 CMR 40.1074(2). Please be advised that technical screening checklists for AULs, listing these and other MCP requirements, are available on the Department's website at this Web page .
by the NERO audit Team
A Response Action Outcome (RAO) is perhaps the most important submittal filed for a disposal site. This document is supposed to provide a technically defensible endpoint (or interim endpoint) to site assessment and remedial activities, and is the primary vehicle used to communicate the level of cleanup achieved at the site in question.
BWSC has identified a number of common problems with RAOs submitted to to DEP. Below is a summary of the most common and important concerns of this nature:
- RTNs and Disposal Sites - There is still some confusion over "release" and "disposal site", with respect to filing an RAO. Perhaps the best way to think of this relationship is as follows:
- releases create disposal sites
- releases are reported; disposal sites are cleaned up
- RAOs are filed for disposal sites, or portion of disposal sitesThus, a disposal site is made up of at least one release and RTN, but may be made up of multiple releases. When filing an RAO, the following thought process would be recommended:
- determine which releases and RTNs comprise the "disposal site".
- determine if all such RTNs have achieved a condition of No Significant Risk (NSR)
- If all RTNs have achieved NSR, file an RAO for the entire disposal site. In this case, list the "lead" RTN (also called the "mother" RTN, which is the first RTN assigned to the disposal site) in the box on the top right hand corner of form BWSC-104. Then list all of the other RTNs that comprise the disposal site on the line indicated in section A of form BWSC-104. Note that you must list all of the RTNs that have been issued for the disposal site, even RTNs that were previously "linked" to the lead RTN in an IRA Completion Statement, Tier Classification/Modification Submittal, or Permit/Modification submittal.
- If all of the RTNs which comprise the disposal site have not achieved a condition of No Significant Risk, you must file a partial RAO, using form BWSC-104. Once again, list the lead RTN in the box on the top right hand corner of the form, and list all of the other RTNs that comprise the disposal site on the line indicated in section A - even RTNs that were previously "linked" to the lead RTN. Then, to indicate a "partial" RAO is being filed, list those RTNs in Section B for which additional response actions are necessary. Note that it is possible to list the same RTN in both Sections A and B of form BWSC-104 in these cases - because RAOs are filed for disposal sites, not RTNs. When filing a partial RAO, it is essential that the areas of the disposal site and partial RAO be fully and clearly documented.
See Everything You Always Wanted to Know About RTNs for additional information on this subject matter.
- Site boundary - It is essential that the RAO submittal contain a clear indication of the disposal site (or portion of a disposal site) for which it applies. This is especially true at locations where there are multiple and/or co-mingled contamination problems. This requirement is specifically addressed in 310 CMR 40.1003(4) of the MCP, which states:
"The boundaries of a disposal site or portion of a disposal site for which a Response Action Outcome applies shall be clearly and accurately delineated in documentation submitted with the Response Action Outcome."
Additional details are set forth in 40.1056(2)(a):
" Such description shall reference, to the extent practicable, the location of the site, and location and boundaries of the disposal site or portions thereof relative to permanent or semi-permanent landmarks, and/or surveyed boundaries."
Bear in mind that "disposal site" is NOT synonymous with "property". Under MGL c. 21E and the MCP, a disposal site is anywhere that oil or hazardous material has come to be located. Disposal site boundaries that coincidentally stop at a property boundary are therefore immediately viewed with suspicion - if this is indeed the case, make sure that adequate justification and documentation are provided.
- Method 1 Risk Assessments - Although this is the most simple and easy risk assessment option provided by the MCP, it is a risk assessment nonetheless, and it must be properly conducted and adequately documented.
Common problems include:
- Receptors, site activity and uses, and/or exposure points are not indicated - This information, and other basic requirements for all risk assessments, are detailed in the MCP at 310 CMR 40.0901-40.0933.
- Exposure Point Calculations (EPCs) are not provided - You MUST indicate the concentration values (soil and/or groundwater) that were compared to the appropriate S/GW Method 1 "look up" standards. Preferably, all data points used to calculate the EPC should be clearly indicated in tabular form. Moreover, specific justification must be provided if any site data was excluded from this calculation. Note that new criteria have been established on calculating EPCs, per revisions to the MCP effective in October 1999 (see 40.0926).
- Soil and Groundwater Categories are not provided or are incorrect - The first step in any risk assessment is to identify all applicable soil (S-1, S-2, and/or S-3) and groundwater (GW-1, GW-2, and/or GW-3) categories, as specified in 40.0930.
- GW-3 standards are not considered - Note that under the MCP, GW-3 applies at every site, and for some contaminants, GW-3 standards are even lower than GW-1 or GW-2 values.
- Method 1 S-1 standards are applied only to the top 3 feet of residential properties - See discussion below.
by the NERO audit Team
Under the MCP, Activity and Use Limitations (AULs) may only be used to restrict "future exposures" they can not be used to restrict activities and uses that are considered "current". This is an important consideration at a disposal site with existing underground utility lines (e.g., water, sewer, drain, electric, gas, telecommunications). Why? Because one has to assume that every utility installation of this nature may require emergency repair or maintenance. These repairs are considered a "current exposure" under the MCP, and as such, it is not permissible to use an AUL to restrict worker access/require worker protection for emergency repairs if contaminated soil is to remain at a site proximate to such installations. This is also a common-sense consideration: when a gas line ruptures at 3 AM, it is not reasonable to assume that utility workers will first stop at the Registry of Deeds to find out that an AUL filed for the disposal site requires use of Level C protective gear when working around the pipe.
For more information on this subject, see Section 2.4 of Guidance on Implementing Activity and Use Limitations, Interim Final Policy #WSC-99-300 , May 1999
by the NERO audit Team
In a previous Helpful Hint (2/99), BWSC listed a series of concerns and recommendations over the degree of temporal data for groundwater monitoring wells. While the region continues to see problems with the limited set of data being used to make decisions on groundwater quality, a related concern exists over the limited number of temporal data that is being used to make decisions on the thickness of light non-aqueous phase liquids (LNAPL) present at disposal sites.
Downgradient Property Status (DPS) Submittals (July/August 1999)
Pursuant to 310 CMR 40.0183(5), a copy of a Downgradient Property Status (DPS) Opinion must be provided to owners and operators of abutting properties upgradient and downgradient of the DPS property and to the owners and operators of any property which is a known or suspected source of the release. The DPS Opinion includes a technical explanation and documentation to support the DPS assertion. A copy of DEP Transmittal Form BWSC-104 is not sufficient to meet this requirement. The DPS notification requirement differs from the notices required for other DEP BWSC submittals, which only require that notice of the availability of the submittals be sent to local officials. This difference has led to some confusion. Concurrent with submitting copies of the DPS Opinion to the parties previously mentioned, a written notice of the availability of the DPS Opinion must be sent to the Chief Municipal Officer and Board of Health in the community where the DPS property is located; a copy of each written notice must also be provided to the DEP. For those DPS submittals that don't clearly indicate that copies of the DPS Opinions have been sent to the appropriate parties, the Audit staff has been calling the PRPs and/or LSPs and requesting that copies of the Opinions be transmitted accordingly.
Recently, a number of Immediate Response Action (IRA) and Release Abatement Measure (RAM) Status Reports have been submitted to the Department which contain Plan amendments, updates and/or modifications to previously approved IRA or RAM Plans that fail to indicate this information on the accompanying IRA or RAM Transmittal Form BWSC-105 or BWSC-106, respectively. This practice does not meet the requirements of the MCP.
Any updated and/or modified IRA or RAM Plan must be accompanied by an appropriate IRA or RAM Transmittal Form BWSC-105 or BWSC-106 which clearly indicates that the accompanying submittal is an update or modification of a previously approved IRA or RAM Plan. To accomplish this, a checkmark must be placed in the indented box of Section B of Transmittal Form BWSC-105 or BWSC-106 and the submittal date of the previously approved Plan provided on the designated line.
Any written update and/or modification to a previously approved IRA or RAM Plan being conducted at a 21E disposal site prior to tier classification must wait for 21-day presumptive approval prior to its initiation.
by the NERO audit Team
One of the most common audit follow-up requirements is the collection of additional groundwater data, usually to support a source control assertion and/or opinion of No Significant Risk or No Substantial Hazard. In these cases, BWSC finds that conclusions about groundwater conditions are based on an inadequate number of sampling rounds. A lack of adequate temporal data is cited by DEP equally across all RAO classes. Is this because regional auditors are being overly conservative? Is the cause that a PRP insisted on fewer samples to meet a MCP deadline or real estate closing? Or is there reasonable room for differences in judgement?
Whatever the causes, what is "reasonable" and meets the RAPS performance standard is hotly debated as an area of professional judgment. Is one sampling round enough? or ten? The answer could be yes or no depending upon site-specific factors. Comfort levels also vary between individuals. However, while opinions and comfort levels may vary, a consistent thought process and rationale must be used to arrive at a decision in this regard at any given site.
So what are the factors that should be used in making this call? We would suggest the following: the solubility, toxicity, and fate characteristics of site contaminants, release history, site complexity, and potential receptors.
Site-specific factors which would lead one to collect MORE rather than LESS groundwater data include:
- Long and/or uncertain release history;
- Significant time period since release(s) occurred;
- OHM concentrations which show significant fluctuations rather than a consistent predictable level or decreasing trend; [Note: attenuation must be documented in order to meet the source elimination or control requirements of an RAO]
- Large variations in groundwater elevations or seasonal or tidal factors;
- Source removal incomplete, unknown or not conducted;
- Complicated site hydrogeology, such as bedrock contamination;
- Environmentally persistent chemicals or those which degrade to more toxic forms [e.g., chlorinated solvents];
- Levels near a cleanup standard;
- Lack of existing data to support attenuation;
- Sensitive resource area [i.e. GW-1]; or
- Natural attenuation is the selected remedial alternative.
Has DEP published any guidance or rules of thumb in this regard? Yes:
- In Policy for the Investigation, Assessment, and Remediation of Petroleum Releases (WSC-401-91; issued way back in 1991), a recommendation is made to conduct quarterly monitoring of groundwater monitoring wells, during the Spring, Summer, Fall, and Winter [see Section 8.36(L)]. This is so seasonal influences relative to precipitation, recharge, and falling and rising water tables can be evaluated.
- In the draft guidance Implementation of DEP VPH/EPH Approach (October 31, 1997), additional detail is presented on the recommended number of sampling rounds, based upon the type of petroleum product released, and the sensitivity of area receptors. The preferred approach is, once again, at least 4 rounds over a 1 year period, "coinciding with seasonal variations". In very limited circumstances, one round of data may be sufficient to support an RAO. However, in most cases, more is needed to arrive at any meaningful conclusions on groundwater quality. Note also that conducting 4 rounds over a 4 month period, while better than one round, may not be able to adequately evaluate the degree of seasonal fluctuations.
BWSC understands concerns over deadlines, regulatory and other, and the desire to close out cases as quickly as possible. However, these pressures should not cloud judgments in this regard, especially at sites with sensitive receptors. If you are submitting an RAO with less than 4 quarterly rounds of groundwater monitoring, you should provide a rationale in the submittal indicating why this decision is appropriate. If you do not, you will be asked to do so in the audit...
by the NERO audit Team
A little background on the concept behind the Downgradient Property Status (DPS): The intent of DPS is to suspend timeframe and fee requirements for a downgradient property that is unable to control an upgradient source of contamination. The suspended timeframe allows for the upgradient source and responsible party to be discovered and brought into compliance with the Massachusetts Contingency Plan - to address both the upgradient and downgradient areas. The specific requirements can be found at 310 CMR 40.0180. Additional guidance can be found in Overview of Downgradient Property Status .
Since the 1995 amendments to the MCP, BWSC/NERO has received over 230 DPS submittals. As a matter of standard practice, the BWSC/NERO Audits program screens every DPS Submittal received for consistency with MGL c. 21E, the MCP, and other relevant laws and regulations. Where there is a clear migration of contamination onto the property, DEP sends letters to those upgradient parties to bring them into the MCP system. Unfortunately, in many cases it is difficult to confirm the downgradient status because of a lack of site history, site investigation or other complicating factors.
If you think your site may qualify for a DPS, here are some things to keep in mind:
- A DPS Opinion should be submitted under its own distinct Release Tracking Number (RTN), since the submission of a DPS is meant to stop applicable fees and deadlines only for the person asserting such status. A DPS Opinion should not be submitted under an RTN for an upgradient or source property or under an RTN for an unrelated release at the downgradient property. If a Downgradient Property does not have a distinct RTN for the upgradient plume prior to the submittal of the DPS Opinion, a Release Notification Form (RNF) should be submitted along with the Opinion and a new one will be assigned. In this way, DEP will ensure timely responses by all applicable parties.
- DPS submittals can become fairly complicated when there are a number of releases involved either at the downgradient property itself or at upgradient properties which have migrated onto the downgradient property. Therefore, in these situations, all the releases should be clearly discussed in the DPS submittal, with maps utilized to graphically present the situation.
- A Downgradient Property Status Submittal should be considered a "Stand-alone" document, and therefore contain at a minimum a summary of all relevant information used to support the DPS Opinion. References to previously generated reports should be used only to give specific details of conclusions reached in the DPS opinion. 310 CMR 40.0183(4) identifies, in general terms, what is required to support a DPS Opinion. 310 CMR 40.0183(2) identifies the criteria for asserting Downgradient Property Status, which should also be discussed in the submittal.
- 310 CMR 40.0183(4) requires that a DPS Opinion be based on investigative and assessment actions of sufficient scope and level of effort to conclude that the criteria in 310 CMR 40.0183(2)(b) have been met, specifically that the source of the release of oil/hazardous material at the downgradient property is or was located at an upgradient property(s) and contaminants (OHM) have come to be located at the downgradient property as a result of the migration in or on groundwater or surface water. In order to come to this conclusion it is necessary to "rule-out" current/prior potential on-site sources. For this reason, a DPS submittal should include the history of the downgradient property including: owner/operator and operations history, release history, oil and hazardous material use/storage/disposal history, and an environmental permits and compliance history.
- The DPS submittal should have a clear indication of groundwater flow direction with several rounds of elevation data, if necessary, to account for seasonal fluctuations and other temporal conditions. The flow direction should not be presumed based upon surface water features. Many submittals depict anomalous groundwater elevation data, such as unusual groundwater divides or mounds or flow vectors contrary to the regional flow regime. These ambiguities need to be explained in the submittal.
Technical justification may be provided to limit or forgo one or more of the assessment or evaluation elements of Comprehensive Response Actions (Phase II through Phase V); however, technical justification may not be used to forgo procedural requirements such as the submission of reports, notices or documents. For example, a Phase II Comprehensive Site Assessment submittal is required within two (2) years following Tier Classification of a Tier II site or issuance of a Tier I permit. Technical justification may not be used to forgo submittal of this document.
The application of an AUL to 21E disposal sites is restricted. A groundwater aquifer is a State resource and therefore its foreseeable use is determined by the State and not by the individual property owner. The determination of whether or not the groundwater is a drinking water resource (GW-1) is determined in accordance with 310 CMR 40.0932(4). The only situation in which groundwater that has been classified as GW-1, may be subjected to an AUL is when the groundwater is classified GW-1 solely on the basis of the presence of private drinking water well(s) within 500 feet (310 CMR 40.0932(5)(d)).
A Grant of Environmental Restriction (not a Notice of Activity and Use Limitation) may be applied to restrict the use of groundwater and effectively change the groundwater category if and only if:
- the private wells are abandoned;
- the properties previously supplied with drinking water by those wells are tied into a public drinking water distribution system;
- and the affected property owners agree to place an Environmental Restriction on their property.
by John Fitzgerald, DEP - NERO
In the final versions of the VPH and EPH analytical methods (January 1998), DEP specified a required reporting format for each procedure. While the exact order and presentation may be varied, all required sample, analytical data, and QA/QC information must be provided. This issue was further detailed and discussed in the October 31, 1997 draft document Characterizing Risks Posed by Petroleum Contaminated Sites: Implementation of the DEP VPH/EPH Approach.
Because DEP is aware that most LSPs (and agency staff) are not experts in analytical chemistry, a summary statement section is provided in the required reporting format of both procedures. Three simple questions need to be answered by the laboratory:
- were all of the required QA/QC procedures followed?
- were all of the required QA/QC performance standards met?
- were any significant modifications made to the method?
The answers to these questions need to be certified via the signature of a responsible employee of the laboratory. Depending upon the response to these questions, further investigation/consideration of the reported data would be in order - either by the LSP, or someone with this type of specialized knowledge.
Based upon a review of recently submitted reports, DEP continues to receive VPH and EPH data inconsistent with the required reporting formats, and without the necessary QA/QC and certification statements. This is a problem in two regards:
- It is not permissible to use or cite the MADEP VPH or EPH methods unless the required data reporting format is used.
- Data submitted without the necessary reporting and QA/QC information may be rejected by the Department.
Keep in mind that DEP does not (currently) certify laboratories for VPH/EPH or any other analyses that are not conducted on drinking water/wastewater matrices. Under the provisions of 310 CMR 40.0017, the burden falls on parties making MCP submittals to ensure and defend the quality of analytical data. The required reporting formats in the VPH and EPH methods are a tool and a vehicle that have been provided by DEP to help parties meet these obligations.
by the SERO Audit Team
The Department has seen an increase in the use of Oxygen Release Compound (ORC) Socks, a remediation tool that uses oxygen to enhance the natural biodegradation of certain hazardous substances. ORC treatment is generally used as a risk reduction measure and to increase the cost effectiveness of remediation at sites. Using ORC socks at a disposal site constitutes active remediation and pursuant to 310 CMR 40.0441 requires a Release Abatement Measure ("RAM") Plan prior to installation of these devices. The RAM Plan should include, as appropriate, the following information regarding the ORC Socks:
- manufacturer and specifications: results of any pilot testing, baseline analytical and performance measurements;
- remedial objectives and information about how ORC socks will be used;
- sketches indicating application and projected radius of influence;
- schedules on ORC application, monitoring both upgradient and down gradient, maintenance, and any additional information as necessary.
Since ORC Socks are usually placed in groundwater monitoring wells, the Department recommends that while these devices are being used, these monitoring wells not be used as sampling points to assess the nature and extent of contamination.
- Waivers issued under the 1988 MCP at many disposal sites have expired and are now submitting Tier II Extensions. Pursuant to 310 CMR 40.0560(7)(b), the Tier II Extension Submittal should be provided to the Department no later than sixty (60) days before the expiration of the Waiver. The Tier II extension should include a description of the status of response actions including a plan and a proposed schedule for implementing such plan which details the steps that will be taken in order to achieve, at a minimum, a Class C Response Action outcome within one year of the effective date of the Tier II Extension. Before reaching a Class C RAO (temporary solution) at a site, a Phase II and Phase III must be completed. Some of these former Waiver sites have yet to complete a Phase II Compressive Site Assessment. Therefore, for sites that have not completed a Phase II, the Tier II Extension should include a Phase II Scope of Work and a schedule that would allow completion of the Phase II report including the full horizontal and vertical extent of contamination and a risk characterization along with a Phase III - Identification and Selection of Comprehensive Remedial Actions Alternatives.
by the NERO audit Team
A Downgradient Property Status (DPS) Opinion should be submitted under its own distinct Release Tracking Number (RTN), since the submission of a DPS is meant to stop applicable fees and deadlines only for the person asserting such status. A DPS Opinion should not be submitted under an RTN for an upgradient source property or under an RTN for an unrelated release at the downgradient property. If a Downgradient Property has not been assigned a distinct RTN prior to the submittal of the DPS Opinion, a Release Notification Form (RNF) should be submitted along with the Opinion and a new RTN will be assigned. In this way, the Department will ensure timely responses by those required to conduct response actions.
by the NERO audit team
The Department has noticed an increasing number of Method 2 and 3 Risk Characterizations in support of a "No Significant Risk" determination. Many of these risk characterizations rely on predictive modeling to determine current risk. In particular, vapor intrusion models are often used to estimate contaminant concentrations which could migrate into an occupied structure from groundwater. We recommend the following approach when considering the applicability of predictive models and vapor intrusion models more specifically.
Current DEP and EPA guidance recommend the use of direct measurements when feasible and appropriate to assess impacts on indoor air from disposal sites. In general, when characterizing exposure risks associated with current site activities and uses, direct field measurement of contaminant concentrations present at a site are preferred to predicted values derived using a model. Such direct measurements may include quantitative soil gas and/or indoor air data collected to evaluate vapor migration into an existing building. There may be certain circumstances which would preclude direct measurement, such as when it is physically not feasible to obtain field data or where that data may be variable or unreliable for some reason. The Department acknowledges that modeling may be the only means available to characterize risks associated with future site conditions, activities and uses. The use of a predictive model to evaluate current or future exposure scenarios is contingent upon the existence/availability of sufficient site data which provides a reasonable level of certainty regarding site conditions. The overall lack of data early on in a site assessment would likely preclude the use of a predictive model at that stage because of the high uncertainties regarding the level and extent of contamination at the site. Prior to using any predictive model in the risk assessment process, it is critical that the model be validated to ensure that its parameters fit specific site conditions. Since all models are founded to some degree on certain inherent assumptions which can not be modified, the LSP must understand those assumptions and confirm that the model accurately reflects the site-specific scenario under evaluation.
With respect to model parameters which can be modified, technical justification must be well documented for all modifications. Lastly, given the uncertainties associated with the usage of both a predictive model and estimated input parameters, MADEP recommends that a range of values be considered for those parameters to which the selected model is particularly sensitive. In all cases, the input parameter values chosen must be reasonably conservative in order to be protective of health, public welfare and the environment.
by the NERO Audit Team
Providing adequate and clear information as to how Exposure Point Concentrations are determined is a critical part of a Response Action Outcome submittal. In reviewing these submittals, however, Department staff frequently find that information describing how the EPCs were derived is absent, incomplete or not documented in a clear manner. In many cases, a conclusion is provided that the EPCs "met the applicable No Significant Risk standards", but there is no detail provided as to which sample(s) comprise the EPC, how the Exposure Point was delineated or why certain samples where included or excluded from the calculated EPC(s). 310 CMR 40.40.0926(1) requires that, "For each oil and/or hazardous material in each medium at each Exposure Point, an Exposure Point Concentration shall be identified and documented. Many times when DEP requests further information as to how the EPCs were derived, the LSP readily provides the basis for the EPCs. Often times, it is not a matter of the wrong conclusions being reached, but rather the information critical to supporting the Response Action Outcome is not presented.
This audit hint focuses on providing adequate detail, both in the report narrative and in corresponding tables, on how the EPCs were determined. Providing this information in a clear and accessible manner which supports a finding of No Significant Risk will reduce the likelihood that DEP will target a Response Action Outcome submittal for an in-depth audit.
Information Which Should Be Provided in the Narrative: Even for the simplest of cases, the narrative should describe how each Exposure Point was delineated, the area that represent the Exposure Point(s) and sample data used to calculate each EPC. (Frequently, information is lacking on/errors are made in Exposure Point delineation. See MCP Q&A, Vol. 4 No. 1, May 1997 and the Guidance for Disposal Site Risk Characterization, Sections 5.8 and 7.3 for guidance on Exposure Points.) EPCs should be calculated for the area affected by the release and information should identify which samples are from the area of the release and which represent "background". Background samples should not be averaged into the EPC. A site map should be provided which indicates sample locations. The narrative should explain the method used to determine the EPC, e.g., use of averaging, maximum values, modeling, percentiles, or inclusion of Non-Detects (by using 1/2 the method detection limit). The narrative should also provide a discussion of any Hot Spots, identifying which sample data was used to calculate the Hot Spot. Other information used to delineate EPCs such as field screening results and visual and olfactory observations should also be discussed. All of this information should be summarized in the narrative of the Risk Characterization section of the Response Action Outcome submittal and "tell the story" of how the EPCs were derived.
Recommended Summary Table Format DEP recommends that all Response Action Submittals provide tables that correspond with the narrative of the Risk Characterization and summarize the EPCs. Many LSP/consulting firms use such tables. The most effective summary tables include the following information/headings:
- sample media (soil, groundwater or air)
- the number of samples used to calculate each EPC
- the concentration of each sample * the range of concentrations, when averaged
- sample depth
- reference to site map that shows the sample locations
- the applicable No Significant Risk standard
- identify any samples that were excluded from the EPC and footnote the Risk Characterization of the report that provides rationale for excluding them
by the NERO Audit Team
The Department continues to receive Class A-2 and Class B-1 Response Action Outcome (RAO) Statements accompanied by Method 3 Risk Characterizations which rely on reduced exposure potentials and limited future site uses and activities. For example, residential use of a disposal site is not evaluated by the risk characterization as a future foreseeable use. These particular submittals do not comply with the MCP and the performance standards for RAOs, however, because a level of No Significant Risk has not been achieved for unrestricted site activities and uses and an Activity and Use Limitation has not been implemented, as required. Pursuant to 310 CMR 40.1012(2)(a)(2), "Activity and Use Limitations (AULs) shall be required at all disposal sites or portions of disposal sites for which a Response Action Outcome and the risk characterization used to support the RAO are based upon the restriction or limitation of Site Activities and Uses to achieve or maintain a level of No Significant Risk, including any disposal site or portion of a disposal site where a Method 3 Risk Characterization relies on reduced exposure potential due to the assumption of limited site use." Pursuant to 310 CMR 40.1012(2)(b), AULs are also required "...when a Response Action Outcome (RAO) relies upon Exposure Pathway elimination to prevent exposure to levels of oil and/or hazardous material that would otherwise pose a significant risk of harm to health, safety, public welfare, or the environment." This approach is common at disposal sites where soil contamination is located beneath existing pavement, and a Method 3 Risk Characterization assumes that the exposure pathway is not complete due to the presence of the pavement. In such cases, an AUL which obligates the maintenance of the pavement is necessary to ensure that the exposure pathway remains incomplete. The fundamental message here is this: If a Method 3 Risk Characterization cannot demonstrate the achievement of a level of No Significant Risk for all reasonably foreseeable site activities and uses at a disposal site (including but not limited to residential uses and activities associated with a child) and remedial response actions are not undertaken, an AUL is required to support an appropriate Class A-3, Class A-4 , Class B-2 or Class B-3 RAO Statement for the disposal site. The AUL must adequately identify all assumptions of the risk characterization and/or restrict site activities and uses which were not evaluated by the risk characterization and may pose a future significant risk to human health, public welfare, safety, and the environment.
by Thomas M. Potter
Recent audits of sites where there is a significant likelihood for private water supplies to be present (i.e.: rural communities) have noted that the actions performed by LSPs to locate such supplies are often not of sufficient scope, detail, or level of effort. This lack of due diligence has resulted in the need for further investigation at many sites. The Department recommends that, as a minimum, the following be performed:
- A thorough field reconnaissance and/or door to door survey for private water supply locations both on and within 500 feet of the disposal site.
- Private well locations could be confirmed through consultations with appropriate local water suppliers, Boards of Health, Departments of Public Works, and other local officials in the community. When possible, more than one official and/or Department should be contacted.
- If the area is served by a public water supply, a comparison of water billing records from the public water supply system to property tax records may be the most effective way to confirm that all nearby properties are served by the public water supply system.
- Private water supply evaluations performed early in a site investigation (i.e.: historical reports prepared months or years earlier) should be updated or revisited prior to the submittal of an LSP Opinion.
by Thomas M. Potter
Screening of Activity and Use Limitation (AUL) submittals by DEP staff has revealed that several LSPs may be interpreting the public involvement requirements for notification of AULs to local officials incorrectly. 310 CMR 40.01403(7)(a) requires that a copy of the recorded and/or registered Activity and Use Limitation (the Notice, and all of its associated attachments) must be provided to the Chief Municipal Officer, the Board of Health, the Zoning Official, and the Building Code Enforcement Official of the community(ies) in which the property subject to the AUL is located. A letter of notice of the availability of the AUL to local officials is not enough to meet this requirement. Furthermore, the AUL should be written clearly so that those individuals receiving a copy can understand the nature of the limitations or restriction without needing to review the complete file at DEP.
by Maria Pinuad, L.S.P.
LSPs should evaluate various options for soil disposal prior to rendering an opinion for a Bill of Lading that allows disposal of soils. Soils should only go to landfills when options such as asphalt batching are not available.