December 2013 Newsletter

Top Takeaways from the FY2012 NOAF Review
By: Jane Parkin Kullmann, Haley & Aldrich, and Jeanine Grachuk, Esq., Beveridge & Diamond, P.C.; Loss Prevention Committee

The Loss Prevention Committee's (LPC) annual review of Notices of Audit Findings (NOAFs) issued by MassDEP has once again indicated interesting trends and "food for thought."   The LPC reviewed NOAFs issued in 2011-2012 (FY2012) relating to specific topics pertinent to the LSP professional practice: Class C RAOs, Downgradient Property Status (DPS), nature and extent of contamination, Activity and Use Limitations (AULs), Remedy Operation Status (ROS), and remedial actions. In this review, the Committee identified the following themes and practice tips. 

Takeaway #1: "Danger, Will Robinson!" Employ DPS cautiously and with particular attention to the DPS lines of evidence. MassDEP terminated or required retraction of all five DPS submittals reviewed during fiscal year 2012. In each case, MassDEP determined that potential on-site sources had not been adequately addressed, with the result that the information presented did not provide sufficient evidence to show that the release was solely from an off-property source. 

Takeaway #2: Confusion persists with respect to what types of boundaries must be shown on the sketch or survey plan submitted as Exhibit B to an AUL. Identified non-compliances included failure to show on the survey or sketch plan the limits of all barriers to exposure identified in the AUL text as AUL Conditions.   For more information, including whether the use of a licensed surveyor is required for a particular barrier, please see MassDEP's MCP Q&A on "How Do I Delineate Barriers within the Area Subject to the AUL?"   

Takeaway #3: Nature and Extent. We continue to see Notices of Noncompliance (NON) for failure to adequately determine the nature (the 'what') and extent (the 'where,' both horizontally and vertically) of contamination. In two cases, both of which were RAOs, the site boundary is not shown on a plan and, in one of these, the source of the release was not identified in the narrative. In several instances, the vertical extent was not adequately assessed. Moreover, in cases of chlorinated solvent contamination, deep wells were: 1) not installed at all, 2) installed only in limited locations, or 3) not installed in downgradient locations.     


Takeaway #4: Don't be surprised if your Phase II Comprehensive Site Assessment (CSA) is audited.We continue to see many audits occurring at the Phase II stage, as MassDEP is not waiting until the filing of an RAO before auditing sites. This is consistent with statements made by MassDEP last year that they intend to focus more on Phase II audits within the general audit program because of the benefits of early identification of possible nature-and-extent and other assessment issues. 

Takeaway #5: When is a Release Abatement Measure (RAM) not enough? In one case, which involved an A-3 RAO, a condition of the AUL prohibited soil disturbance activities without first submitting an LSP Evaluation Opinion. However, USTs located within the AUL area were subsequently removed under a RAM. MassDEP determined that the RAM Plan that was submitted to address the UST removal was not sufficient because an "LSP Evaluation Opinion" had not also been submitted prior to excavation activities, as required by the AUL.     

Takeaway #6: Follow the Operation, Maintenance, and Monitoring (OMM) Plan! We noted several examples where MassDEP issued NONs for failure to follow an OMM plan. For example, one OMM plan called for quarterly groundwater sampling, but no groundwater sampling was conducted for ten months after the application of remedial additives.   In that case, MassDEP also identified a concern that sampling at the site was occurring infrequently and irregularly, making evaluation of the data and the effectiveness of the remedy difficult. In other cases, MassDEP indicated that the OMM Plan should have been updated when a particular well was no longer in service. 

Takeaway #7: Is your remedial strategy working? In several instances, MassDEP determined that the chosen remedial strategy was no longer appropriate and required re-evaluation. In one case, MassDEP stated that the remedial action was "not making progress towards a Permanent Solution," and noted that the groundwater pump-and-treat system had been in operation for over 12 years but concentrations of nickel and hexavalent chromium continued to exceed UCLs. In another case, the remedial strategy for addressing a petroleum release was excavation followed by chemical oxidation and monitored natural attenuation. Based on monitoring data, MassDEP determined that no significant reduction in the concentrations of site contaminants in groundwater was occurring, possibly because the data showed that the subsurface environment was anaerobic.    

Takeaway #8: No Standing or Parking in Remedy Operation Status (ROS). In several audits of sites in ROS, MassDEP determined that the remedial action was not making adequate progress and required termination of ROS. In one instance, after eight years of monitored natural attenuation, the ROS Status report indicated that concentrations of contaminants of concern (COCs) were increasing without any explanation for the trend. MassDEP required either the submittal of a revised status report explaining how the conditions for ROS continued to be met, or termination of ROS.  

Takeaway #9: "Adminis-trivia" remains a critical challenge in filing AULs. MassDEP continues to issue NONs for cases where the proper signatory authority is not attached to the AUL, where MassDEP is not provided copies of the AUL and/or plans, or where the AUL is not referenced in a future deed.   

Takeaway #10: Monitoring well maintenance is not a trivial matter. On several occasions, NOAFs identified the failure to properly maintain wells. In one instance, MassDEP stated that the bolts for securing the well caps were missing and road boxes were in disrepair, with cracked or missing concrete.  

Takeaway #11: Requests for Information (RFI). MassDEP occasionally uses its authority under M.G.L. c. 21E to issue RFIs to support its audit of a particular site, especially in the context of determining compliance with AULs. For example, MassDEP issued an RFI when it could not determine whether changes had been made to the AUL area (e.g., planting of ornamental trees) and, if so, whether these changes had been performed in compliance with the AUL. In the instances we noticed, MassDEP issued the RFI after attempting to obtain the needed information by phone. MassDEP indicates that it has authority to issue RFIs under M.G.L. c. 21E, s 2, 4 & 8, and under 310 CMR 40.0165. While the LSP may be copied on the RFI, these are typically issued to the PRP or current landowner.