June 2014 Newsletter

Summary of FY 2013 NOAFs Concerning Downgradient Property Status Submissions
By: Michelle N. O'Brien, Esq., Mackie Shea O'Brien, PC, and Loss Prevention Committee

The annual review of MassDEP Notices of Audit Findings (NOAFs) conducted by the LSPA's Loss Prevention Committee included a review of audit findings for five sites with Downgradient Property Status (DPS) submissions.  The following is a summary of our review. 

Only one of the five DPS submissions was deemed adequate by MassDEP.  At that site the contamination was discovered during a Phase I Environmental Site Assessment, and the property owner submitted the DPS Opinion two days after filing the Release Notification Form.  The property owner identified a known upgradient MCP site as the likely source. 

The other four DPS submissions examined each resulted in MassDEP's issuance of a Notice of Noncompliance with the NOAF.  Three of the four also terminated the DPS; the fourth required either a termination of the DPS or a revised DPS Opinion.  All of these NOAFs concluded that there was insufficient information provided in the DPS submission to support the conclusion that the source of oil or hazardous materials was located on an upgradient property and had migrated in or on groundwater. 

The practice tips from review of the DPS submissions are as follows:

  • Evaluate and rule out potential on-site sources.  This includes contacting government agencies and owners and operators of the property and reporting on the information obtained.  In one NOAF, MassDEP noted that although the DPS stated there was no knowledge of any on-site storage or use of #2 fuel oil, there was "no discussion of what local/state/federal agencies and current/former property owners/operators were contacted and what information they provided."  In some instances on-site soil or groundwater data collection may be necessary to rule out potential on-site sources. 
  • Determine the groundwater flow direction at the property to establish upgradient potential contribution areas.  Use data from nearby sites in addition to data from the subject property. 
  • Demonstrate the migration of oil or hazardous materials in or on groundwater onto the property.  The amount and type of data necessary to do this will vary from site to site, but the DPS should at least account for temporal and spatial variations in contaminant concentrations and the presence or absence of particular constituents (or NAPL).