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You may own a contaminated property (site) that has been selected for an audit. If the audit includes a site visit, you will receive a Notice that your site is undergoing an audit. An auditor will review the file and schedule a site visit. You may be asked for clarification or further information to support the site cleanup decisions. The Department will summarize its review in a Notice of Audit Findings which identifies any violations or deficiencies and actions necessary to correct them.
The Massachusetts Department of Environmental Protection (MassDEP) is required to audit response actions at disposal sites by M.G.L. Chapter 21E s. 3A(o). Regulations that govern the audit process are contained in the Massachusetts Contingency Plan (MCP) (310 CMR 40.1100). M.G.L. c. 21E and the MCP also give MassDEP the authority to inspect sites, collect environmental samples, and require that pertinent site information be submitted.
An audit is a review of documents or submittals to verify that response actions have been conducted in compliance with MGL c. 21E and the Massachusetts Contingency Plan (MCP). A site could be randomly selected from a pool of submittals, or a specific submittal could be targeted for an audit (e.g. IRA Status Report, Phase II, or Permanent or Temporary Solution Statement).
For audits involving a site visit, you will receive a Notice that your site is undergoing an audit. An auditor will review the file and schedule a site visit. You may be asked for clarification or further information to support the Licensed Site Professional (LSP) Opinion. The Department will summarize its review in a Notice of Audit Findings which identifies any violations or deficiencies and actions necessary to correct them.
Audits ensure compliance with M.G.L. c. 21E and the MCP by verifying that response actions have been conducted according to applicable MCP requirements. The audit focuses on determining whether human health, safety, public welfare, and the environment have been adequately protected by response actions conducted at the site. Overall, the MassDEP audit program has been designed to ensure:
MassDEP conducts three different types of audits, which are referred to as a Level 1 Audit, Level 2 Audit, and Level 3 Audit, described below. Each audit type provides varying degrees of review. In general, MassDEP auditing activities include:
Level 1 (L1) Audits provide a screening review of documentation submitted to MassDEP (and located in MassDEP files) using standardized technical screening forms. Sites selected for a L1 audit do not receive a Notice of Audit. The technical screening helps MassDEP identify potential time-critical conditions, Immediate Response Action (IRA) conditions, or Imminent Hazards (IH) that may require immediate attention. L1 Audits also:
L1 audit technical screening forms are response-action specific. The standard forms, in checklist format, are available below . The majority of Permanent or Temporary Solution Statements will receive at least an L1 Audit.
Level 2 (L2) Audits evaluate specific on-going assessment and remedial response actions at active or conditionally closed sites, e.g., Remedy Operation Status (ROS) or an Activity & Use Limitation (AUL). L2 Audits include:
Level 3 (L3) Audits are assigned by regional section chiefs and may be based on: results from L1 or L2 audits and specific concerns about sensitive receptors, local conditions, potential risks or other flags identified in the L1 Audit.
L3 Audits include:
Whether you are a RP, PRP, or OP you have two principal obligations during an audit:
The RP, PRP, or OP to whom the NOAF is addressed is responsible for responding to the audit and complying with any requests made by MassDEP. However, you may engage or may be required to engage the expertise of a Licensed Site Professional (LSP) when responding to the audit. If the audit requests additional follow-up information and/or directs you to submit a Post-Audit Completion Statement (P-ACS) to accompany the information requested, an LSP must be hired. Additional information on the LSP profession and hiring LSPs can be found at the Board of Registration of Hazardous Waste Site Cleanup Professionals' web site.
Depending on the type of audit, it may take a single day or up to several months or more to complete. The length of time will depend on audit findings and any necessary actions. For example:
If the audit uncovers violations, at the conclusion of the audit MassDEP will issue a NOAF, which may include a Notice of Noncompliance (NON) that may:
Once these activities are completed, a Post-Audit Completions Statement (P-ACS) must be submitted to MassDEP together with the required documentation. Bureau of Waste Site Cleanup (BWSC) Transmittal Form 111 must also be submitted for both the Audit Follow-up Plan and the P-ACS, and can be found at BWSC's Transmittal Form Page. The audit is considered closed after the P-ACS, with the signatures of the RP, PRP, or OP and the LSP-of-Record, is submitted. These response actions may also be selected for a random or targeted audit.
MassDEP may also initiate enforcement actions for violations found at any time during or after an audit. Enforcement actions may include issuance of a: NON, Notice of Intent to Assess a Civil Penalty, Notice of Enforcement Conference, Notice of Responsibility, Notice of Response Action, MassDEP Order, and/or referrals to the Attorney General's Office or Licensed Site Professionals Board. MassDEP is not required to issue a Notice of Audit Finding if doing so might jeopardize enforcement actions at a site. A link to additional information on MassDEP's enforcement regulations and policies is provided below.
You may call or write the auditor or the contact person listed in the NOAF. If you disagree with the findings of the NOAF, you may submit the matter to the BWSC Deputy Regional Director for investigation/resolution.
MassDEP staff periodically contribute articles to the LSP Association (www.LSPA.org) newsletter on topics related to audit and enforcement activities.
Western Region John.Ziegler@state.ma.us
Central Region Rebecca.Woolley@state.ma.us
Northeast Region David.LaPusata@state.ma.us
Southeast Region Deborah.Marshall-Hewlitt@state.ma.us