August 2020

In This Issue

The LSPA would appreciate your feedback on the articles included in the August 2020 newsletter. Please send your comments and questions to [email protected].

President's Message 

If you’re like me, you’re sick of the phrase “the new normal”. For the time being, however, it’s something we’re stuck with.  As the Director of Resilience and Environmental Stewardship for the City of New Bedford, and wearing my municipal resilience “hat,” I focus on actions and adaptations that will enable our community to thrive in the face of climate change.  We take actions to reduce our vulnerabilities while also adapting to forces we cannot change in an effort to become stronger together. LSPA members and their companies have done the same during the COVID-19 crisis; wearing their environmental and health practitioner “hats,” they took immediate action by responsibly halting their business-as-usual operations.  I applaud those of you who took the personal or corporate actions of sharing PPE and supplies with medical staff and first responders to mitigate the spread of the disease.  Our practice quickly adapted to ensure that we could continue to provide essential services while taking necessary health and safety precautions as directed by the Baker-Polito Administration.  We are delivering field services now with even more deliberate attention to health and safety.

I am optimistic that we are transitioning from survival mode to a model in which we will ultimately thrive, establishing new practices that will make us, our companies, and the LSPA stronger.  The environment and our pets have realized a great silver lining during these past five months. Our air is cleaner from reduced transportation.  Zoom meetings and working from home have been made even more enjoyable by more work flexibility; I’ve even been able to do much of my work outdoors.  Our furry and feathered office mates are happy to provide us with constant approval and companionship. I’m putting fewer miles on my car and more on my body.

Don’t get me wrong. This is not to say that most of the challenges are behind us and all solutions have been identified.  Schooling is a huge unknown in September and beyond, and will continue to challenge our “routines”. In addition, we are more aware of, but only beginning to identify, opportunities to truly achieve equity and environmental justice in a sincere and meaningful way.

From an LSPA perspective, we have been forced to adapt quickly, think on our feet, and sometimes fly by the seat of our pants.  Our staff have become expert in areas where previously they only dabbled. The LSPA membership continues to benefit from the association’s day-to-day functions and activities despite our operating model being flipped on its head. While the appearance of our member meetings, courses, and events has changed, we have been busier than ever planning and delivering professional development and networking opportunities, and advocating for our members and our practice. The LSPA’s mission remains the same.  Our committees remain active and we encourage everyone to explore what they’re up to While we undergo a productive and necessary evolution in how we deliver our services, we want to hear your ideas and suggestions about what the LSPA can do to help our members, our sponsors, and our practice.  Some people call it “building the plane while we’re flying it.”  I prefer to think of it as building resilience in the face of challenges.


Michele Paul, LSP, President

On a personal note, I am so pleased to have been re-elected to the LSPA Board in the June 2020 election.  Thank you for your support.   In addition to voting to approve me for another year as President, the LSPA Board voted to approve the following officers for FY 21:

Lauren Konetzny-Clerk - Congratulations to Lauren on her re-election!

Matt Young-Treasurer

Dave Leone -President Elect

Congratulations to Jason Chrzanowski on his election to the Board.  We look forward to working with you.

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Don’t forget, the LSPA Blog, called LSPA News & Blog on the homepage of our website, has useful information on the latest from MassDEP BWSC, LSPA announcements, job postings, and more. Click here for past blog posts and visit the LSPA website regularly for new postings.

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Review of 2018 Vapor Intrusion Enforcement Notices  

By Jane Parkin Kullmann, Senior Risk Assessor, Wood, and LSPA Loss Prevention Committee

The LSPA’s Loss Prevention Committee reviewed 59 enforcement notices (“notices”), typically Notices of Audit Findings (NOAFs), from the Massachusetts Department of Environmental Protection (MassDEP or the Department) regarding vapor intrusion (VI): 26 from Northeast Region, 19 from Central Region, 6 from Western Region, and 8 from Southeast Region. The number of FY2018 notices is higher than the 43 issued relative to vapor intrusion in FY2017, and the numbers were higher in each region, with the exception of Western Region.  Of those sites receiving enforcement notices in FY 2018, 18 were issued a Notice of Noncompliance (NON), 2 were issued an Administrative Consent Order (ACO), 7 were issued an Administrative Consent Order with Penalty (ACOP), 1 was issued an NON and then an ACOP, and 1 was issued a Unilateral Administrative Order, which is typically issued if previous violations are not addressed and no settlement has been reached.

Although each of the notices reviewed in this category is related to vapor intrusion, there were many cases where the violations noted in the notices were general issues that could apply to any site.  The most common of these issues was missing (or extremely delayed) MCP submittals, in particular Remedial Monitoring Reports (RMRs), Immediate Response Action (IRA) Status Reports, or Post-temporary Solution Status Reports, which are generally required to be submitted every six months.  Another issue that was cited in several notices and that may be frequently applicable to vapor intrusion sites (but can occur for any site) is that response actions were not conducted in accordance with a submitted Release Abatement Measure (RAM) or IRA Plan, or, similarly, that modifications to a remedial approach were made but were not documented in an appropriate submittal prior to the implementation of the modification.  For example, this might include modifications to a remedial system, a change to the type of remedial additive being used, or additional response actions being conducted that were not identified in a previous MCP submittal.

Other issues identified in multiple notices that were specifically related to vapor intrusion were failure to notify of a system shutdown during the test of an Active Exposure Pathway Mitigation Measure (AEPMM) and failure to conduct indoor air sampling in accordance with procedures presented in MassDEP’s Vapor Intrusion Guidance (VI Guidance).  With respect to the former issue, this can serve as a reminder to the LSP community of the requirements for using an AEPMM to mitigate a VI pathway at a site.  These requirements were discussed in more detail in last year’s VI NOAF summary article.  With respect to the latter, although the VI Guidance is guidance and not regulation, it was cited in at least three notices and in one case the associated violation was cited as 310 CMR 40.0904(2), which requires characterizing the nature and extent of contamination. 

The following notices with NONs or ACOPs were identified to provide a representation of violations related to vapor intrusion noted by the Department in FY2018:

  • At one site,  an ACOP was issued because a sub-slab depressurization system (SSDS) was installed without first submitting a RAM Plan. The ACOP states that the LSP called MassDEP to report that concentrations of trichloroethene (TCE) in indoor air had increased and that the planned response action was to install an SSDS.  The ACOP says that “Respondent’s LSP has indicated that [they] believed, based on the communications with MassDEP, that the SSDS could be installed without submitting a RAM Plan prior to installation.”  The Respondent then later submitted a RAM Plan that documented the installation of the SSDS and pre- and post-installation air analysis.  The ACOP cited the Respondent for violating 310 CMR 40.0443(1) because a RAM Plan was not submitted prior to the installation of the SSDS, and the installation was considered to constitute a RAM.
  • One NOAF with an NON was issued for a site with TCE in groundwater for several violations: failure to secure wells, failure to conduct IRA response actions in a timely manner, and failure to provide proper public notification.  For this last violation, the concentrations of TCE reached the threshold for a potential Imminent Hazard; however, the Potentially Responsible Party (PRP) did not notify the site occupants.  To address this, MassDEP took the step of restricting access by women of child-bearing age to the locations where a potential Imminent Hazard had been identified.
  • An ACOP was issued related to an IRA Completion Statement for a site, specifically because the IRA Completion Report that was submitted did not address a potential Critical Exposure Pathway (CEP) at the site in violation of 310 CMR 40.0427(1)(c).  The IRA Completion Report did not discuss either the mitigation or elimination of the CEP, or document why the elimination or mitigation of the pathway was infeasible.
  • An NOAF with NON was issued for a site for a combination of a VI- and risk assessment-related violations.  The PRP was converting an existing building to residential use and installed an SSDS as a precautionary measure, with the ability to go to passive or active operation if necessary.  To demonstrate that a condition of No Significant Risk existed for residential use of the building, soil gas concentrations at the site were used to model indoor air concentrations by applying a default soil-gas-to-indoor-air attenuation factor of 70.  The Department cited this as a violation and said that MassDEP “does not agree with the use of modeling to estimate indoor air contaminant concentrations for the purposes of human health risk assessment in residential scenarios.” 

With respect to vapor intrusion-related sites that were issued enforcement notices in FY2018, the pattern of violations observed indicates that the types of violations noted could, in many cases, apply to almost any MCP Disposal Site, such as late or missed submittals or a lack of documentation of modifications to response actions at a site.  For vapor intrusion specifically, MassDEP continues to issue NONs for violations related to inadequate assessment of the pathway (e.g., insufficient sampling to evaluate the nature and extent of contamination or to adequately characterize potential exposures) and deficiencies in risk assessment (e.g., identification of CEPs and calculation of EPCs).  As always, a complete Conceptual Site Model is essential when assessing a site for vapor intrusion and understanding how receptors might be exposed to chemicals via the vapor intrusion pathway.  Because vapor intrusion can be considered applicable during almost any phase of MCP activities, it is important to consider the relevance of the vapor intrusion pathway at every step of the MCP compliance process.

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FY2018 NOAFs - Screening Category: Nature and Extent

By Wesley Stimpson, Loss Prevention Committee and LSPA Past President

Each year, in order to help its members’ professional practice, the LSPA’s Loss Prevention Committee searches the eDEP files, and downloads and visually scans Notices of Audit Findings (NOAFs) and Administrative Consent Orders (ACOs) to place them into broad categories.  This article provides selected information derived from the Nature and Extent (N&E) category for MassDEP’s fiscal year 2018 (July 2017-June 2018).

Eleven documents were reviewed in which determining the nature and extent of site contamination was a major component of concern to MassDEP (also “the Department”). The documents included: 

  • Seven NOAFs for MCP compliance submittals ranging from a Class C Temporary Solution 5-year review to Permanent Solution Statements (PSS),
  • Two ACOs issued for inaction on former NOAFs,
  • One NOAF for an Immediate Response Action (IRA) field audit, and
  • One enforcement action file review. 

Of the eight total NOAFs, the IRA field audit concluded that no practice changes were needed.  More information on two of remaining seven NOAFs is presented below.

The first NOAF of note was for a 2018 PSS filed for a disposal site where a release of oil and hazardous material occurred during the demolition of a residential building and associated small storage shed. A large variety of containers with unidentified chemicals had been stored in the shed and were not removed from the shed prior to demolition.  The assorted chemical containers and their contents were therefore released to the ground surface and ambient air and were spread across the property during the demolition activities.  They were also included in the fill used to backfill the cellar hole.   Workers at the site and one nearby resident reported experiencing difficulty breathing.

The property owner did not have the financial resources to initially respond to the release, so MassDEP contracted with a state remediation contractor to perform IRA activities to stabilize the site.  During the IRA, attempts were made to identify what chemicals might have been contained in the shed.  Over 100 different containers were found and over a dozen broad categories of   different chemicals and waste materials were identified as present at the site.  Identified containers, their remaining contents, and about 500 tons of soil were removed from the site during the IRA.

The property owner undertook the site characterization and risk evaluation necessary to comply with the MCP after the IRA was completed.  A supplemental IRA Plan was submitted outlining the additional data to be collected.  Four soil borings were advanced, three of which were completed as groundwater monitoring wells, and four composite surface soil samples were collected. Laboratory analyses on the four soil boring samples (lab sample depths of 5 to 8 feet below grade) included extractable petroleum hydrocarbons (EPH) with four diesel target Polycyclic Aromatic Hydrocarbon analytes, volatile organic compounds (VOCs) via EPA method 8260, polychlorinated biphenyls (PCBs) via EPA Method 8082, and RCRA 8 Metals using EPA Methods.  The four surface soil samples were analyzed for PCBs and mercury. Three groundwater samples were collected and analyzed for EPH, VOCs, and PCBs.  These data, combined with prior data collected during the IRA, were used to characterize risks for MCP compliance.  A condition of No Significant Risk was demonstrated using the data collected.

When the PSS was audited, however, the Department concluded that given the wide variety of chemicals released and spread across the property, as identified during the MassDEP IRA site stabilization activities, additional sampling and analytical characterization was required to establish the nature and extent of the release. The NOAF concluded that PSS performance standards had not been met because the assessment and risk characterization work performed was not commensurate with the complexity of compounds released and the heterogeneous nature and extent of the release at a residential property. MassDEP recommended soil sampling using incremental sampling or high-density discrete sampling, and that consideration be given to including additional soil analyses using, but not necessarily limited to, the following methods and parameters:

  • Method 6010 — metals (full list) — includes boron and phosphorus;
  • Physiologically available cyanide;
  • Method 8270 — full list of semi—volatile organic compounds;
  • Method 8260 — full list of volatile organic compounds;
  • Organochlorine pesticides;
  • Polychlorinated biphenyls; and
  • pH

The property owner was given 14 days to retract the PSS and begin additional response actions.  If this condition could not be met, the PSS would be declared invalid by the Department.

The second NOAF of note was for a 2015 Temporary Solution Statement (TSS) filed for a gasoline service station.  An on-site release of arsenic in groundwater from an unknown source was identified during a 2008 real estate transaction study.  In addition, a 72-hour release of gasoline was reported during an upgrade of existing on-site underground storage tanks in 2009.  The site is in a commercial setting with a restaurant located approximately 80 to 100 feet downgradient of impacted monitoring wells. No monitoring wells were located directly between the gasoline source area and restaurant that could be used to support the edge of the disposal site boundary as shown to exist in the TSS.

In addition, persistent concentrations of soluble arsenic in excess of Method 1 Groundwater Category GW-1 standards were identified in groundwater in monitoring wells installed at and near the subject property.  According to the TSS, there was no known source of arsenic at or in the vicinity of the site.  However, based on the collocation of arsenic within the petroleum plume, it was thought that the arsenic may be associated with the petroleum release.

The Department’s review, based on the information presented, concluded that the nature and extent of the petroleum contaminant plume and arsenic in groundwater had not been established, and that additional corrective actions were necessary.  The PRP was given the option to retract the TSS while additional studies were undertaken or, alternatively, within 30 days submit technical justification to support the conclusions in the TSS.

In addition, MassDEP offered observations on the presence of arsenic by citing documented evidence of petroleum degradation resulting in the mobilization of arsenic per the following link:

The Department stated this information could potentially be used to evaluate the likelihood that the arsenic in groundwater at the site is associated with the petroleum release. If the arsenic was determined to be the result of changes in geochemistry caused by the breakdown of petroleum constituents, then remedial technologies available to mitigate arsenic in groundwater would need to be evaluated per 310 CMR 40.0850 - Phase III-Identification, Evaluation and Selection of Comprehensive Remedial Action Alternatives.

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Lessons on AULs From Review of FY2017 NOAFs 

by James J. Decoulos, LSP, Decoulos and Company, and Bettina Eames, PG, AECOM, both of Loss Prevention Committee

In Fiscal Year (FY) 2017, the Massachusetts Department of Environmental Protection (MassDEP) issued Notices of Audit Findings (NOAFs) for 141 disposal sites that were closed out with an Activity and Use Limitation (AUL).  The number of NOAFs and Notice of Non-Compliance (NON) letters issued by region (in order from most NOAFs to least) were as follows:

  • NERO (49 sites with 16 NONs issued),
  • WERO (47 sites with 6 NONs issued),
  • CERO (39 sites with 17 NONs issued), and
  • SERO (6 sites with 3 NONs issued).

In general, there were no apparent inconsistencies observed in NOAFs among the MassDEP regions. MassDEP AUL field audits noted an occasional violation of property use inconsistent with the AUL. Similar to NOAF findings in prior years, most of the AUL violations MassDEP noted were associated with the AUL instrument itself. Several common errors noted in MassDEP’s AUL audits were:

  1. Inadequate Exhibit B - Sketch Plans;
  2. Improper signatory authority documentation;
  3. Lack of inspections; and
  4. Failure to reference AULs during property transfers.

New audit findings in FY 2017 included sites with Active Exposure Pathway Mitigation Measures (AEPMMs) and issues with dropping the AUL in the chain of title after property subdivision.  MassDEP NERO determined that at one disposal site, a mixed-use commercial and industrial property, each individual Sub- Slab Depressurization System (SSDS) required its own independent communication and alarm trigger.  At another site, a new owner failed to register and manage the AEPMM in accordance with the AUL and Permanent Solution with Conditions Statement.  

A MassDEP CERO audit noted that a portion of an AUL-restricted area was subdivided 14 years after recording the AUL, and the AUL was not incorporated into the deed for the newly-created parcel; the new parcel was conveyed without any AUL restrictions and essentially left unencumbered. MassDEP provided instructions for correction of the AUL but did not assess the property owner a penalty.

Another unique AUL situation arose in a FY2017 audit by NERO staff which raised the question, “How can contractors or departments of public works be made aware of AUL-restricted areas while they are responding to an emergency utility failure?”  In this specific case, a water main break occurred on private property with an AUL.  During the emergency repair, 65 yards of AUL-restricted soil was stockpiled, and 600 gallons of water was removed from the ground.  Neither the contractor nor the municipal department of public works (DPW) knew about the AUL.  

It is time to start thinking about how we notify public entities and the general construction community about the location of AULs. These entities need to know what protective measures may be needed and the AUL obligations that need to be maintained. The LSPA or MassDEP could recommend that signs be placed or standard utility marking tape be placed underground so that DPWs, MassDOT, workers and approved contractors can be made aware of petroleum or hazardous material contaminated soil. 

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Findings From Review of Fiscal Year 2018 NOAFs Related to Downgradient Property Status

 By Richard Fil, Esq., and Larry McTiernan, PG, LSP, Roux Associates, both of LSPA’s Loss Prevention Committee

In fiscal year 2018 (FY18) there were four MassDEP Notices of Audit Findings (NOAFs) related to Downgradient Property Status (DPS) filings, one of which also included an Administrative Consent Order with Penalty (ACOP).  Three of the four NOAFs were from MassDEP’s (also “the Department”) Western Regional Office (WERO), although it is unlikely that this reflects an enforcement or audit focus within that region given the limited number of sites overall for which NOAFs were issued with respect to DPS filings.  There was, however, a consistent theme among the four NOAFs, and that was the Department’s finding in each case that the requisite determination pursuant to 310 CMR 40.0183(2)(b) had not been made. This MCP provision specifies that the source of the release of oil and/or hazardous material (OHM) at the downgradient property must be or must have been located on one or more upgradient or upstream location(s), and that OHM from that location(s) must have come to be located at the downgradient or downstream property as a result of migration of the OHM in or on groundwater or surface water.

  • For the first WERO site, the Department determined that the DPS documentation did not support the reported groundwater flow direction or indicate that an Immediate Response Action (IRA) was required.  With specific regard to the groundwater flow direction, the Department pointed out that the groundwater flow direction described in the DPS submittal was based on statements made by others, but relevant documentation was not provided to support those statements.  With regard to the need for an IRA, the Department noted that a monitoring well with reported detections of vinyl chloride above the GW-2 standard appeared to be located within 30 feet of a building, but the indoor air exposure pathway for vinyl chloride was not assessed. 
  • For the second WERO site, the Department determined there was insufficient support in the DPS Opinion to conclude that the chlorinated volatile organic compounds (CVOCs) identified in on-site soil, groundwater, soil gas, and indoor air had migrated there solely from an upgradient source via groundwater.  The Department’s finding was based on the following considerations:
      1. The manufacturer that operated at the site until the mid-1950s was known to have used CVOCs for vapor degreasing;
      2. It was not clear where on the site this manufacturer used CVOCs;
      3. The locations where CVOCs were detected in soil and groundwater at the site were well within the boundaries of the former manufacturer's space; and
      4. The DPS Opinion did not demonstrate how the relatively low levels of CVOCs in groundwater could have migrated upward 4 feet or more to impact vadose zone soils at relatively high concentrations. 
  • For the third WERO site (the one for which an ACOP was issued), the Department determined that the presence of OHM in soil and groundwater at the site was not clearly attributable to groundwater migration from an upgradient source and that the DPS Opinion failed to provide sufficient data to conclude that the distribution of OHM observed at the site was not the result of an on-site source.  This determination was based on the following:
      1. The groundwater contour map included in the DPS Opinion did not support a conclusion that the OHM detected in site groundwater was downgradient from the suspected potential sources identified.  In the Department’s opinion, the wells in which OHM had been detected were located cross-gradient of the suspected source areas.  The ACOP also pointed out that groundwater depths were not measured in several wells at the site, including one of the wells containing OHM.
      2. As stated in the DPS Opinion itself, the site was formerly used for manufacturing in the 1800s and OHM was used on a daily basis during the manufacturing time period. 

In further regard to the latter item, it should be noted that the DPS Opinion had concluded specifically (but without explanation or support) that there was no potential on-site source for 1,2-DCA, one of the compounds that had been detected in site groundwater.  And with regard to the other OHM (petroleum compounds, which had been detected in both soil and groundwater at the site), the DPS Opinion stated, rather incongruously, “Soil impact was observed…on the southern and central (emphasis added) portions of the property....  These locations are essentially at the edges of the property and are not downgradient of any known on-site sources.”  (The DPS Opinion was also silent on the fact that one of the monitoring wells containing petroleum compounds, although in fact located at the edge of the property, was immediately adjacent to the former location of two on-site gasoline USTs.) 

It should also be noted that the presence of petroleum hydrocarbons in site groundwater had not previously been reported to the Department.  In addition to being a shortcoming of the DPS Opinion (a DPS Opinion may only be made if the Department has been notified of the release), this may also have contributed to the Department’s decision to issue an ACOP for the site.  The Department also noted the following additional shortcomings of the DPS Opinion in the ACOP:

      1. Petroleum hydrocarbons were detected at concentrations above GW-2 standards in monitoring wells located within 30 feet of an occupied building, but the potential for indoor air impacts was not evaluated. 
      2. The notices to abutters included with the DPS Opinion were sent only to those identified in the DPS Opinion as upgradient property owners (notices are supposed to be sent to both upgradient and downgradient abutters).
      3. The transmittal form for the DPS Submittal indicated that local officials were notified of the submittal, but copies of such notice were not included in the submittal. 
  • For the last NOAF, from the Southeast Regional Office, the Department concluded that a DPS Opinion and a subsequent DPS Addendum (submitted in response to a Department audit field inspection) submitted for a site at which TCE had been detected in soil gas[1] did not meet the requirements for asserting DPS, based on the following lines of evidence:
      1. Sanborn maps indicate that jewelry manufacturing occurred at the site in the past.  The Department noted that CVOCs such as TCE were commonly used in jewelry manufacturing and opined that TCE was likely used and released at the former jewelry manufacturing business operating at the site in the past.  The Department further noted that neither the DPS Report nor the DPS Addendum identified the former on-site jewelry manufacturing operations as locations where suspected sources could exist, nor were the footprints of the former jewelry manufacturing buildings depicted on the plan in relation to the sampling locations.
      2. The DPS Addendum concluded that the presence of VOCs in groundwater at the subject property was likely the result of former operations at an adjacent property, as well as at other industrial establishments located nearby.  This conclusion was based in part on the analytical results of sludge and soil samples presented in an earlier Response Action Outcome Statement for a separate release at the property.  However, as the Department pointed out, there is no indication that the referenced sludge samples were ever analyzed for VOCs, and the referenced soil samples were not in-place samples but rather samples collected from a soil stockpile (generated during the demolition of former site buildings) to evaluate disposal options.  According to the Department, “sampling and analyzing two samples from stockpiled soil is not sufficient to assess whether a release of CVOCs occurred at a property where CVOCs were likely used.”
      3. TCE was detected in soil gas at concentrations up to 2,500 micrograms per cubic meter (µg/m3), including a concentration of 1,590 µg/m3 detected in the area where one of the site’s former jewelry manufacturing buildings was located.  Although the DPS Addendum provided calculations using Henry's Law and VOC concentrations in groundwater to show that the actual VOC concentrations in soil gas were below the calculated values (and therefore that the VOCs in soil gas were from VOC-impacted groundwater and not an on-site source), the Department pointed out that (a) whereas Henry’s Law constants are lab-based and assume that equilibrium is reached, equilibrium is generally not reached in the subsurface, possibly explaining why actual soil gas concentrations tend to be below calculated concentrations; (b) it could not be concluded from the calculated concentrations that the VOCs in soil gas at the site were solely emanating from VOCs in groundwater; and (c) the calculations did not rule out the possibility that the TCE was present in soil at the site.  The Department concluded this portion of the NOAF by stating that soil samples should have been collected to evaluate the potential for past releases at the site.
      4. The groundwater flow direction analysis was considered to be incomplete.  Specifically, the Department believed that given the direction of flow in the adjacent river, and the absence of a monitoring well in one portion of the subject property, it was likely that an additional monitoring well in that portion would show a groundwater flow direction different from that depicted in the DPS Opinion (i.e., would show flow from the former location of a former jewelry manufacturing building toward the well with the highest TCE concentrations in groundwater at the property).  The Department also noted that although VOCs were detected in the most upgradient well, none were CVOCs, and that CVOC concentrations increased with distance across the property, suggesting an on-site source. 
      5. Lastly, the Department noted that although response actions had been undertaken to eliminate the source of the TCE plume in groundwater at the adjacent property, TCE concentrations in groundwater at the property for which DPS was asserted remained elevated, further suggesting that there was a separate source of TCE at the latter property.

Based on our review of the four FY18 NOAFs relating to DPS Opinions, it is clear that in order for a DPS Opinion to be accepted, it must contain BOTH:

(1) A clear demonstration that OHM at a site can be traced to an upgradient property (i.e., there must be sufficient water-level data to determine the groundwater flow path between the OHM in question and the suspected upgradient source(s), and the groundwater flow paths must be clearly depicted); and

(2) Sufficient assessment of the downgradient property to rule out an on-site source(s) for the OHM in question. 

The NOAFs reviewed herein, as well as others the authors have reviewed, demonstrate that regardless of how compelling a case can be made that an upgradient source exists, DPS will not be approved for a downgradient property without sufficient on-site characterization, especially if there is any history of similar OHM usage at the downgradient property.[2]  This is particularly true if the OHM has been detected in vadose zone soil at the downgradient property.

There is one additional “take-home” message based on our review of the FY18 DPS NOAFs: Be sure to assess the potential for vapor intrusion and associated Imminent Hazards even if asserting DPS for a site.  It is the last, but certainly not the least, element of the MCP performance standard for asserting DPS stipulated at 310 CMR 40.0183(4).

[1] Indoor air at the property had previously been sampled to evaluate the potential for vapor intrusion from a TCE release at an adjacent property.

[2] It is quite telling that in discussing one of the several shortcomings for one of the four NOAFs discussed above, i.e., that the documentation submitted in support of the DPS Opinion did not identify former on-site manufacturing operations as locations where potential sources could exist, the Department stated, “Pursuant to 310 CMR 40.0183(4)(e), a DPS Opinion shall include ‘the locations of any known or suspected source(s) of OHM releases that have come to be located at the downgradient or downstream property.’”  By citing this particular element of the MCP performance standard for asserting DPS, the Department made it clear that the term “suspected sources” is meant to include “potential on-site sources,” not just suspected upgradient sources.


Review of Activity and Use Limitation (AUL) FY2018 NOAFs 

By James J. Decoulos, LSP;  Bettina Eames, PG; J. Andrew Irwin, LSP; and Jane Parkin Kullmann, Senior Risk Assessor. All of the LSPA’s Loss Prevention Committee

For Fiscal Year (FY) 2018, the Massachusetts Department of Environmental Protection (MassDEP or the Department) issued many Notices of Audit Findings (NOAFs) related to Activity and Use Limitations (AULs). The vast majority of these NOAFs were audits performed as part of AUL field inspections or site inspections.  These typically involve both an inspection of the conditions at a disposal site and an administrative review of the AUL instrument. 

Findings are summarized below.


Total Number of AUL-related NOAFs  Issued

Number of Notices of Noncompliance (NONs)

Numbers of Administrative Consent Order with Penalty (ACOP)

MassDEP Western Region (WERO)




MassDEP Central  Region (CERO)




MassDEP Northeast  Region (NERO)




MassDEP Southeast  Region (SERO)





Consistent with prior years, the NOAFs with NONs issued by the Department primarily identified violations associated with the administrative aspects of implementing an AUL.  Chief among these was that the AUL was not incorporated into a new deed that was issued upon transfer of the property to a new owner.  In the 2014 revisions to the MCP, the Department added the following text to the top of the Form 1075 for a Notice of AUL to draw attention to this requirement:

Note:  Pursuant to 310 CMR 40.1074(5), upon transfer of any interest in or a right to use the property or a portion thereof that is subject to this Notice of Activity and Use Limitation, the Notice of Activity and Use Limitation shall be incorporated either in full or by reference into all future deeds, easements, mortgages, leases, licenses, occupancy agreements or any other instrument of transfer. Within 30 days of so incorporating the Notice of Activity and Use Limitation in a deed that is recorded or registered, a copy of such deed shall be submitted to the Department of Environmental Protection.

Other administrative issues related to AULs that were noted in the NOAFs included:

  • Modifying the template language of the AUL form,
  • Removing or not including the template language of the AUL form,
  • Using an outdated version of an AUL form,
  • Not clearly describing the permitted uses of the site,
  • Listing permitted site uses that were inconsistent with the assumptions of the risk characterization supporting the AUL,
  • Providing an inaccurate and insufficient AUL narrative (Exhibit C),
  • Providing only poor quality sketch plans,
  • Not providing appropriate signatory authority,
  • Having a signatory that did not meet the requirements for signatory authority,
  • Omitting a notary stamp,
  • Not providing documentation of the notification of record interest holders for the site, and
  • Not providing a Registry copy of the plan referenced in the recorded AUL. 

In addition, four AULs were cited for lacking provisions to allow emergency utility work (excavation/repair).

Selected NOAFs that addressed additional issues were:

  • An NOAF with an NON was issued primarily due to a lack of consistency between the risk characterization, the text of Exhibit C, and the uses permitted and not permitted in the AUL.  MassDEP’s observation was that the summary of the findings of the risk characterization in the PSS was inconsistent with both the reasons stated in Exhibit C for why the AUL was needed and the uses that were permitted by the AUL.  Specifically, the risk characterization concluded that a condition of No Significant Risk could not be demonstrated for unrestricted use, consisting of exposure to soil via incidental ingestion and ingestion of homegrown produce.  However, these findings were not described in Exhibit C as the reason for the AUL.  Further, the permitted uses in the AUL included a use described as “indoor activities including transient in-patient care and housing,” which was seen by MassDEP as lacking specificity as to what type of housing was allowed and for what receptor (child or adult).  In addition, the “inconsistent uses” portion of the AUL restricted “growing of food for consumption by humans or livestock intended for human consumption,” which MassDEP interpreted as an agricultural use rather than using the site for growing homegrown produce, which was also inconsistent with the risk characterization.  The findings of this NOAF suggest that, in the process of preparing an AUL, it would be helpful for the risk assessor to review the provisions of the AUL and Exhibit C to confirm that these are consistent with the conclusions of the supporting risk characterization.
  • Another site was issued an NOAF with NON as part of an AUL field inspection where trees and shrubs were observed to be growing within the boundaries of a capped area at the site.  MassDEP determined that this was in violation of the AUL, which required that the capped area be mowed and that the cap be maintained as part of the obligations and conditions of the AUL.  The NON required that the trees and shrubs be removed from the cap and that the area be mowed.
  • At one site, an NON was issued because an existing AUL was rendered inaccurate due to a subsequent subdivision of the property into two separate parcels.  An AUL was implemented in 1997 for a portion of the original property, and when the property was subdivided in 2011, the new property line crossed the portion of the property where the AUL applied.  Subsequently, the subdivided area was assigned a new address and sold to a new owner.  This change rendered the existing AUL incorrect with respect to property address, metes and bounds, and survey plan.  The new owner of the parcel with the new address was required to terminate the existing AUL as applied to the portion of their property and record a new AUL that conformed to the new configuration of the property. (An NON was previously issued to the owner of the other parcel regarding the AUL; therefore, the AUL for the other portion had already been terminated and replaced with a corrected AUL.)
  • An NOAF with NON was issued for a site at which MassDEP identified numerous instances of non-compliance with the AUL.  First, the AUL referred to a geotextile marker barrier, covered by one foot of clean cover or pavement with subbase, as an “engineered barrier;” per MassDEP, this combination did not meet the definition of an engineered barrier, in violation of 310 CMR 40.0996(5)(a).  In addition, one of the requirements of the AUL was to maintain written records of annual site inspections (which would be consistent with the implementation of an engineered barrier at a site); however, no such records were found.  Lastly, the Method 3 risk characterization conducted in support of the Response Action Outcome (RAO) Statement stated that uses that were higher intensity than passive recreation (e.g., residential) would be restricted by the AUL; however, the inconsistent activities and uses section of the AUL did not restrict residential use or the future redevelopment of the site for residential use.
  • In another NOAF with an NON, several risk assessment-related violations were noted.  The most significant issue was that soil contaminant concentrations in the area subject to the AUL were noted to be above S-1 standards in the Method 1 risk characterization; however, the AUL did not explicitly identify residential use as an inconsistent activity or use for the site.  MassDEP noted other inadequacies in the risk assessment submitted with the RAO Statement, including the fact that the environmental portion of the risk assessment relied on a general statement of NSR, even though concentrations of metals and TPH in sediment were above sediment screening criteria.  MassDEP said that this factor, in addition to the size of the site (12 acres), should have warranted a Stage 1 environmental screening as part of the RAO.
  • Improper modifications to a Sub-Slab Depressurization (SSD) system were cited in an NOAF with an NON in the Northeast Region. The modifications were made after a Phase IV Remedy Implementation Plan (RIP) was filed, and the Department was not notified of the changes. Additionally, all potential sources of oil or hazardous materials were not identified, no health and safety plan was filed with the RIP, the nature and extent of contamination were not defined, and information on an SSD system shutdown was not transmitted to MassDEP.
  • An NOAF with an ACOP was issued for the removal of four USTs from an AUL area without benefit of a RAM Plan. The administrative penalty was $25,000.  The message from the Department was clear - if you are going to remove USTs from an AUL area, file a Release Abatement Measure (RAM) Plan.  
  • Another NOAF with ACOP was issued for work conducted in an AUL area without a soil management plan or health and safety plan.  The PRP and his attorney had full knowledge of the requirements of the AUL and the work being conducted.  The misstep cost the PRP $7,500, and the Department warned the PRP that another violation would cost an additional $7,500.
  • An NOAF with ACOP was issued for a successor in title to the PRP that had implemented an AUL. The new owner ignored the need to prepare a soil management plan and health and safety prior to constructing a large outdoor deck with four-foot deep footings for a restaurant.   The new owner was fined $5000 and put on probation for one year, and informed that another violation would cost another $5,000.
  • The hammer came down particularly hard on the MBTA for a transit station parking lot that was restricted with an AUL.  MassDEP noted that the MBTA had failed to maintain an engineered barrier and bituminous asphalt surface, despite reminders and enforcement action by the Department.  The administrative penalty was $49,191.