The articles below are a compilation from the LSPA's Loss Prevention Committee which have been previously sent to LSPA members in email blasts in Summer/Fall 2021. These articles all provide valuable lessons learned from FY2019 and FY 2020 MCP submittals and MassDEP audit findings. We hope you find these Risk Management tools helpful to your practice.
The LSPA would appreciate your feedback on the articles included in the December 2021 newsletter. Please send your comments and questions to [email protected].
LSPA Blog
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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MassDEP Audit Checklists Filed on LSPA Website
As most LSPA members probably know, a key annual initiative of the LSPA’s Loss Prevention Committee is to compile and review MassDEP’s Notices of Audit Findings (NOAFs) to identify trends, findings, practice tips, and other details to share with the membership. Often checklists are included in the NOAF documents. Several of these checklists are listed on MassDEP’s website here.
In their NOAF reviews, the Committee has identified additional checklists used by MassDEP as they have conducted level 1, 2, or 3 audits. The Committee has extracted these forms from the MassDEP database and redacted them. These checklists are provided below by general category as additional resources for practitioners. Please note that the LSPA has not discussed these specific forms with MassDEP to determine if they are still used, specific to certain MassDEP regions, etc. These are simply presented as resources for practitioners.
All of this information can be found on the LSPA website member pages under Technical Resources.
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31 Out of 32 Risk Characterization-Related NOAFs Received NONs
By Crista J. Trapp, Human Health Risk Assessor, The Vertex Companies, Inc. and Former Chair, Loss Prevention Committee
The LSPA Loss Prevention Committee’s (LPC) annual review of Notices of Audit Findings (NOAFs) issued by the Massachusetts Department of Environmental Protection (MassDEP) includes NOAFs that involve risk characterization. For FY2019, the LPC reviewed 17 NOAFs in this category, which is consistent with the number of risk-related NOAFs in past annual reviews. All 17 NOAFs received a Notice of Noncompliance (NON). For FY2020, the LPC reviewed 15 risk characterization-related NOAFs and one Administrative Consent Order with Penalty (ACOP). This number of NOAFs/ACOPs is also generally consistent with previous years. Of the 15 NOAFs, all but one received a NON. Consistent with previous years, LPC’s review identified three primary areas where issues were noted: site characterization, identification of exposure point concentrations (EPCs), and substantial hazard evaluations (SHEs). FY2019 documents are discussed first, followed by FY2020 documents.
FY2019: Site Information Required for Risk Characterization (310 CMR 40.0904(2)(a))
Seven of the 17 NONs (41%) were issued due to failure to adequately characterize the Disposal Site. The accuracy and weight of the conclusions of a risk characterization depend on a sufficient definition and delineation of the nature and extent of a release and consideration of each of the media and migration pathways that are relevant. This is a recurring theme in LPC’s annual NOAF reviews; sites with these issues are often also cited for nature and extent (N&E) related violations. Violations of 310 CMR 40.0904(2)(a) cited by MassDEP in the FY2019 NOAF review include:
Issue/Violation
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MassDEP Assertion in NOAF
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Additional data needed to define the horizontal extent of impacts to groundwater (GW) originating from the source area due to apparent lack of plume attenuation
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The horizontal extent may extend further than the Disposal Site Boundary (DSB) as defined in the Permanent Solution Statement (PSS) and as a result it is not possible to determine whether a condition of No Significant Risk (NSR) exists for the disposal site absent the additional data needed to define the horizontal extent of impacts and adequately characterize exposure.
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1,4-Dioxane (1,4-D) reporting limits exceeded the GW-1 Standard
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Extent of 1,4-D above the GW-1 Standard has not been established. Site 1,4-D maximum concentration exceeded GW-1 Standard. Downgradient monitoring wells (MWs) were analyzed for 1,4-D and were non-detect (ND) but had reporting limits that were above the GW-1 Standard.
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Four MWs were included in the Partial PSS DSB and Method 1 Risk Characterization but only one of the four MWs was sampled for chlorinated volatile organic compounds (CVOCs)
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Audit focused on the Downgradient Property Status (DPS) Submittal relating to a CVOC release in addition to Site submittals relating to a petroleum release. Data summarized in previous reports indicate that CVOCs detected in site MWs had originated from an upgradient property. The N&E of CVOCs was required to have been assessed within the Partial PSS DSB in addition to the DPS in order to evaluate for potential imminent hazards (e.g., vapor intrusion into an on- site building) and to calculate cumulative site risk for all site contaminants.
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Source of CVOCs in soil was attributed to historic operations; PSS concluded that CVOCs did not migrate to GW, but no GW samples were collected.
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The date of the release of CVOCs is unknown and therefore the length of time CVOCs had to leach from soils to GW is also unknown. The leaching pathway of CVOCs from soil to GW was not evaluated: no GW samples were collected in the vicinity of the release. The lack of GW analysis represents a deficiency in defining the extent of the release.
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No shallow soil samples inside the footprint of the former aboveground storage tank (AST) were analyzed for petroleum hydrocarbons.
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Soil samples from 0-1 foot below ground surface from areas east of the footprint of the former AST were analyzed for herbicides and metals but not petroleum hydrocarbons. Shallow soil samples should be collected and analyzed for volatile petroleum hydrocarbons and extractable petroleum hydrocarbons to support an adequate risk characterization.
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Insufficient assessment of N&E of groundwater in bedrock.
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GW from both bedrock MWs are impacted with TCE. Since GW flow direction in the bedrock aquifer and the hydraulic relation between the bedrock and overburden aquifers have not been determined, additional assessment is necessary to assess N&E of TCE contamination in the bedrock aquifer.
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GW sampling was conducted before underground storage tank (UST) removal and none of the installed MWs are located downgradient of the former UST grave.
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On-site GW flow direction was not documented in the PSS. MassDEP assumes GW flows towards wetlands. The downgradient extent of the release was not delineated in GW to support the Method 1 risk characterization.
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FY2019: Identification of Exposure Point Concentrations and Other Data Criteria (310 CMR 40.0926(3))
Of the 17 NONs, five (29%) identified violations of 310 CMR 40.0926(3) regarding the identification and calculation of EPCs. Risk assessors often refer to 40.0926(3)(b)(1) as the “75/10X rule.” If the 75/10X criterion is not met, then the LSP must include justification that the sample mean is unlikely to substantially underestimate the true mean of the concentration at the exposure point per 310 CMR 40.0926(3)(b)(2).
Summarized below are the five violations of 310 CMR 40.0926(3) cited by MassDEP:
Issue/Violation
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MassDEP Assertion in NOAF
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Several soil samples used in the calculation of the EPC are located outside the indicated DSB and beyond the extent of the gasoline release
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The EPCs do not represent a conservative estimate of potential exposure. However, because the remedial treatment system was operated for about 10 years to reduce or destroy the gasoline contamination, MassDEP recommends reassessing the areas of highest contaminant concentrations to characterize current soil conditions.
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EPCs in GW at a MW were determined by calculating their arithmetic average over nine consecutive quarterly sampling rounds
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Concentrations only met the applicable GW-1 Standard 55% of the time, not the minimum 75% required for averaging. EPCs do not represent a conservative estimate of the average concentration.
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Average concentration used for the EPC is greater than the S-1 Standard
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Criteria for using an average concentration were not met (i.e., three criteria in 75/10X rule). Because these criteria were not met and due to the variability in the data, either the maximum or 95th percentile Upper Confidence Limit (UCL) on the mean should be used as the EPC.
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EPCs for soil were estimated using arithmetic average concentrations
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75% of the data points used in the averaging procedure are not equal to or less than the applicable standard or risk-based concentration limit. The risk characterization does not include justification for concluding that the sample mean is unlikely to substantially underestimate the true mean of the concentration at the exposure point. Use of the average is not a conservative estimate of the mean.
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Identification of EPCs not documented
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The summary table showed minimum and maximum concentrations and the EPCs for each contaminant in the Activity and Use Limitation (AUL) area. However, neither the table nor the text indicated which soil samples were used to generate the EPCs. Though EPCs were developed for the area outside the AUL, these EPCs were not evaluated in the risk characterization.
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FY2019: Substantial Hazard Evaluation (310 CMR 40.0956)
Failure to prepare a Substantial Hazard Evaluation (SHE) that meets the requirements of the MCP is a third category of violation. Of the 17 NONs, four had SHE-related violations (24%).
The four SHE-related violations were (1) failure to conduct a SHE, (2) failure to update the SHE, (3) failure to continually assess site conditions, and (4) failure to include a quantitative SHE. A description of each of these violations is provided below. Examples (1) through (3) are violations of 40.0956(1)(b). Example (4) is a violation of 40.0956(1)(c).
Issue/Violation
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MassDEP Assertion in NOAF
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Failure to conduct a SHE
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As a component of Remedy Operation Status (ROS), the MCP requires an evaluation of Substantial Hazards in each status report, and an update of the SHE with new data every 5 years. Periodic evaluations of CVOC concentrations in GW and surface water must be conducted and incorporated into an updated SHE.
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Failure to update the SHE
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The Temporary Solution Statement (TSS) was submitted in 2011. According to MassDEP, two residential wells located proximate to the site had not been sampled since 2012. A focused SHE submitted in 2016 only evaluated exposure to 1,4-D in drinking water and did not evaluate all site chemicals of concern. MassDEP asserts that “[a]lthough annual private well sampling may not be necessary on an annual frequency at this time, updated private well sampling data must be collected periodically, and at a minimum every five (5) years, prior to the completion and submittal of each new Substantial Hazard Evaluation and Periodic Review of the Temporary Solution to the Department.” Also, contaminants of concern have been detected in the raw and/or treated water of the public water supply, not just 1,4-D. MassDEP asserts that eliminating sampling of the private potable well results in an unsupported conclusion that a condition of No Substantial Hazard continues to be maintained.
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Failure to continually assess site conditions
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In the Post-TSS Report and 5-Year Periodic Review received in 2018, the LSP proposed discontinuing sampling of private wells because they are located hydraulically upgradient of the site and historical drinking water samples collected from these private wells never exhibited petroleum impacts. MassDEP acknowledged that these wells had not been impacted by the petroleum release. Regardless, due to variability in the well conditions, MassDEP required that the private wells be sampled "periodically," at a minimum every 5 years, prior to the completion and submittal of each updated SHE and the 5-Year Periodic Review. MassDEP asserts that elimination of the private well sampling activities is a violation of 40.0411(7) and 40.0956(1)(b), and that the LSP is unable to support the conclusion that a condition of NSH continues to be maintained at the site without periodically sampling the private potable wells.
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Failure to include a quantitative SHE
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The TSS report concluded that a condition of NSH was present at a vacant lot. However, the TSS did not contain a quantitative SHE. According to the TSS, the current use of the vacant lot is considered to be commercial, but there is no current exposure to site contaminants, and therefore a quantitative SHE is not required. MassDEP asserts that access to the vacant land is unrestricted and that because site contaminants have been identified in surficial soils, a quantitative evaluation must be prepared, at a minimum, to evaluate the trespasser exposure scenario.
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The risk characterization-related violations identified in the NOAFs, summarized in the preceding paragraphs, describe issues identified by MassDEP in the NOAFs. This author has not independently reviewed the underlying documents cited in the NOAFs.
Summary of the FY2019 Review
The key takeaways from the FY2019 review of risk characterization related NOAFs are:
- N&E must be fully characterized prior to conducting a risk characterization;
- For PSS, LSPs must provide risk characterizations that are sufficient in scope, detail, and level of effort to support site cleanup decisions and adequately support the conclusion that site conditions are consistent with a condition of No Significant Risk for human health, safety, public welfare, and the environment;
- Use of the arithmetic average of site data as the EPC must be adequately justified, either through the 75/10x rule or other statistical analysis, and if these criteria cannot be met, another EPC (e.g., maximum or 95th UCL) must be used; and
- Failing to prepare a SHE using recent quantitative data as part of the Periodic Five-Year Review is continuing to be a focus in MassDEP audits, especially in CERO.
Summary of the FY2020 Review
The LPC reviewed 15 risk characterization-related NOAFs and one Administrative Consent Order with Penalty (ACOP) for FY2020. This number of NOAFs/ACOPs is consistent with previous years. Of the 15 NOAFs, all but one received a NON. Consistent with previous years, and as summarized above for FY2019, LPC’s review identified three primary areas (64% of risk- related violations) where issues were noted for FY2020:
- Identification of EPCs (40.0926): 32% of risk-related violations
- Site characterization (40.0904(2)): 18% of risk-related violations
- SHEs (40.0956(1)(b)): 14% of risk-related violations
The other 36% of risk-related violations consisted of failing to:
- perform scientifically acceptable risk assessment practices, taking into consideration guidance (40.0901(4)),
- identify receptor information that results in a conservative estimate of exposure (40.0920),
- identify exposure points (40.0924),
- identify groundwater category GW-1 (40.0932(4)),
- select only one of three methods of risk characterization to evaluate human health (40.0941(3)),
- conduct a separate characterization of the risk of harm to safety when using a Method 1 risk characterization (40.0971(5)), and
- identify and compare EPCs to applicable or suitably analogous health standards in a Method 3 risk characterization (40.0993(3)(c) and (40.0993(7)(a)).
The consistent number of NOAFs and NONs issued by MassDEP every fiscal year for issues relating to risk characterization, in particular site characterization, calculation of conservative EPCs, and updating SHEs, indicates that this topic remains an important focus for MassDEP.
Future Considerations
Since the 2014 Massachusetts Contingency Plan (MCP) Amendments, MassDEP has noted that the use of non-conservative EPCs has not decreased as much as they would like.
MassDEP has indicated that “soon-to-be-promulgated” 2021 MCP Revisions will prescribe how conservative EPCs must be calculated, either based on the 75/10X rule, valid justification for using the sample mean, or calculating the UCL on the mean (either the 90th percentile Chebyshev non-parametric UCL or the 95th percentile parametric UCL for a lognormal or gamma distribution, typically by using the United States Environmental Protection Agency’s (USEPA) ProUCL software or similar data package). Refer to the Draft 2019 Redline Version of the MCP for more information, located here.
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Review of FY2020 NOAFs Related to NAPL
By Wesley Stimpson, LSPA Past President and Loss Prevention Committee Member
The Loss Prevention Committee’s (LPC’s) search of MassDEP’s FY 2020 Notices of Audit Findings (NOAFs) referencing non-aqueous phase liquid (NAPL) found 13 documents. These documents were characterized as follows:
How Many NOAFs?
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What Type of Audit?
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5
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Field reviews of Remedy Operation Status (ROS) and Remedial Action Inspections (RAI). Two of the field audits found no issues with the actions being conducted, two required more work, and one had missing reports addressed during the audit.
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4
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Enforcement actions such as Administrative Consent Orders (ACO), Administrative Consent Orders with Penalties (ACOP), and actions labeled as Enforcement Documents. One enforcement action was for the release of oil from the bilge of a tugboat as it traveled from Woods Hole to Harwichport, MA.
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3
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Temporary Solutions
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1
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Permanent Solution with Condition Statement
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Three of the thirteen audits were Level 3 (Comprehensive) audits. Two of these pertained to sites that were adjacent to each other with significant issues associated with determining the nature and extent of contamination and did not have much to do with LNAPL
One NOAF for a Permanent Solution with Conditions is worthy of further discussion. The property involved is a 20.7-acre site used as a bulk petroleum storage facility for more than 75 years. Over the past 25 or so years, it has been used for car, bus and truck parking on paved surfaces. Significant amounts of LNAPL were observed in monitoring wells in the past.
Following a substantial, long-term recovery effort, potentially recoverable LNAPL remained in one monitoring well. After an assessment of risk associated with the filing of a Temporary Solution Statement, it was determined that, once the LNAPL was addressed, a condition of No Significant Risk would exist. An AUL was placed on the site that limited its use by sensitive receptors, and required the maintenance of the existing surface barriers and an existing seawall to prevent the future discharge of LNAPL to nearby surface water. The AUL was recorded on the property in 2005, when the Temporary Solution was filed.
The potentially responsible party (PRP) conducting response actions at the site evaluated the remaining LNAPL using the provisions of the 2014 MCP amendments (i.e., 310 CMR 40.1003(7)) and concluded that “Non-stable LNAPL [was] not present” at the site – that is, the LNAPL was not mobile. To evaluate the feasibility of continuing recovery efforts for the LNAPL with Micro-scale Mobility, a bail down test was conducted under the Simplified Method in the LNAPL Guidance; transmissivity (Tn) was found to be less than 0.8 ft2/day. Therefore, no additional recovery effort was necessary. The PRP determined that a condition of No Significant Risk was met and a Permanent Solution Statement was filed.
MassDEP noted as a Comment in the NOAF that the Permanent Solution indicated that the LNAPL level measured in the tested well was above the Stability Action Level listed in the LNAPL Guidance. As stated in the LNAPL Guidance, when using the Simplified Approach, if the appropriate Stability Action Level Is exceeded, one year of monthly monitoring is required to determine whether a condition of Non-stable LNAPL is present. MassDEP indicated that it was unclear from the Permanent Solution Statement if a year of monthly LNAPL monitoring had been completed, and requested that a statement to clarify the issue be added to a Revised Permanent Solution Statement.
In the NOAF, MassDEP pointed out, as a Violation, that the AUL filed with the Temporary Solution in 2005, and used to support the Permanent Solution, did not address the MCP requirements for a site where NAPL with Micro-scale Mobility is present. Specifically, the following deficiencies existed:
1) the AUL did not provide notice to current and future property owners about the presence of NAPL with Micro-scale Mobility at the site; and
2) the AUL did not establish through the “Obligations and Conditions” appropriate measures to be taken to manage potential future exposures to NAPL (e.g., to protect construction workers and/or to establish management/contingency plans for any NAPL that may flow into future excavations in the event of construction activities in the area of the NAPL that exhibits Micro-scale Mobility).
The PRP was given 120 days to file a revised AUL and submit a Revised Permanent Solution Statement.
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Review of Vapor Intrusion Notice of Audit Findings, FY2019 - FY2020
By Jane Parkin Kullmann, Wood, and Frank Calandra, The Vertex Companies, both members of the LSPA Loss Prevention Committee
This article presents findings from the Loss Prevention Committee review of MassDEP Notices of Audit Findings (NOAFs) for vapor intrusion from both FYs 2019 and 2020. The key findings from this review are:
- Several Notices of Noncompliance (NONs) were issued for submitting IRA Completion Statements prior to meeting the conditions required to address Critical Exposure Pathways (CEPs), in violation of the provisions of 310 CMR 40.0427(1)(c).
- The indoor air pathway should be assessed to the extent necessary to address the potential for CEPs and evaluate risk. Adequate justification should be provided to identify or exclude constituents as chemicals of concern for vapor intrusion/indoor air.
- Many NOAFs and subsequent audit findings were associated with non-responsive Responsible Parties (RPs).
- Specific active exposure pathway mitigation measure (AEPMM) audits are being conducted by MassDEP, and there appears to be a reduction in the number of AEPMM-specific NONs from previous years. Close attention should be paid to satisfying the requirements at 310 CMR 40.1025(3) and 40.1026(3) for AEPMMs used as part of a Permanent Solution or Temporary Solution, respectively.
NOAF Tallies
The Loss Prevention Committee (LPC) reviewed 28 vapor intrusion NOAFs conducted in MassDEP’s fiscal year 2019 , accounting for notices from all four MassDEP Regions. The total number of NOAFs is slightly less than the 34 NOAFs issued relative to vapor intrusion in FY2018.
FY 2019 Region
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Total NOAFs
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RSI Audit
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AUL Audit
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AEPMM Audit
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# No Violations
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# NONs
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1
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Western Regional Office
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4
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1
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1
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1
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2
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2
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2
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Central Regional Office
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11
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1
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1
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2
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6
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5
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3
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Northeast Regional Office
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8
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4
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1
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2
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6
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2
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4
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Southeast Regional Office
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5
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0
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0
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0
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0
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5
|
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28
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6
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3
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5
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14
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14
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RSI: Remedial System Inspection AUL: Activity and Use Limitation
AEPMM: Active Exposure Pathway Mitigation Measure NON: Notice of Noncompliance
In FY2020, there were 27 vapor intrusion NOAFs. Among the 17 NOAFs where violations were identified were two Administrative Consent Orders with Penalty (ACOP), one Administrative Consent Order (ACO), and 14 NONs.
FY 2020 Region
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Total NOAFs
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RSI Audit
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AUL Audit
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AEPMM Audit
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# No Violations
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# NONs (incl. ACOP, ACO)
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1
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Western Regional Office
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5
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0
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0
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0
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1
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4
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2
|
Central Regional Office
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11
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0
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2
|
1
|
3
|
8
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3
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Northeast Regional Office
|
8
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1
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4
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4
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5
|
3
|
4
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Southeast Regional Office
|
3
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0
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1
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0
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1
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2
|
|
27
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1
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7
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5
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10
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17
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NOAF Findings
Premature termination of an IRA
Three FY 2019 NOAFs and one FY 2020 NOAF resulted in NONs for submitting an Immediate Response Action (IRA) Completion Statement prior to eliminating or mitigating a CEP to the extent feasible. he specific citations of noncompliance were associated with 310 CMR 40.0427(1)(c), which requires that “either a CEP has been eliminated using passive measures, it has been shown that it is infeasible to eliminate or mitigate the CEP, or that mitigation of the CEP is continuing under a Phase IV RIP.” (LPC notes that MassDEP’s Vapor Intrusion Guidance provides additional details on the many potential regulatory options regarding CEPs and the vapor intrusion pathway. If, as part of a Phase II Comprehensive Site Assessment, it is determined that a condition of No Significant Risk exists without the operation of the AEPMM, it may be possible to achieve a Permanent Solution that does not require the operation of the AEPMM, as long as an IRA Report has been submitted that also documents that the CEP has been mitigated or eliminated. In this case, the AEPMM would not be required to operate as part of the Permanent Solution. See Sections 4.3.6.1 and 4.7.1 of the Vapor Intrusion Guidance.)
According to the NOAF for one site, groundwater had been impacted by chlorinated volatile organic compounds (CVOCs), including tetrachloroethylene (PCE), trichloroethylene (TCE), cis-1,2-dichloroethene (cis-1,2-DCE), and vinyl chloride. Historically, the property had been used as a commercial dry cleaner prior to the redevelopment of the property into residential lots. Response actions included sampling of soil, groundwater, soil gas, and indoor air; excavation and off-site disposal of contaminated soil; application of remedial additives; and installation of sub-slab depressurization systems (SSDSs). A Class A- 2 Response Action Outcome (RAO) was submitted for the site in 2007.
In 2016, in response to a MassDEP NOAF/NON, MassDEP received a statement of retraction for the 2007 RAO. A Tier Classification Extension was also submitted, and an IRA was initiated at the site. IRA activities included additional assessment and the installation of additions SSDSs. An IRA Completion (IRAC) Statement was submitted to MassDEP in 2018.
MassDEP stated in its NOAF that the IRAC Statement relied on an active SSDS to address a CEP and maintain a Condition of No Significant Risk. The IRAC Statement explicitly stated that the SSDSs would remain in continuous operation for an indefinite period of time, as site data indicated that indoor air exposures had been successfully migrated via the installation of the SSDSs. Pursuant to 310 CMR 40.0427(1)(c)1, an IRA may only be closed without the submittal of an AUL if passive measures are used or if an active system is operating to mitigate a CEP as part of Phase IV. Based on the need for the SSDSs to remain in continuous operation for an indefinite period of time in order to mitigate air exposures, the Responsible Party (RP) failed to comply with the provisions of 310 CMR 40.0427(1)(c).
Additional issues of note are described briefly below; each of these sites received an NON.
Failure to continually assess and evaluate the need for an IRA
A TSS was submitted for a Site. As part of response actions, indoor air had been sampled at the RP's property, but not at an adjacent property. MassDEP sampled the indoor air at the adjacent property; concentrations were below toxicity values (TVs) for industrial/commercial use. The NOAF identified a violation of 310 CMR 40.0411(7) for failure to continually assess and evaluate the need for an Immediate Response Action (IRA).
Failure to evaluate the potential for a CEP to exist
MassDEP audited the IRA Plan submitted for a site. IRA activities being performed at the site did not include an evaluation of vapor intrusion or assessment of a potential CEP, in violation of 310 CMR 40.0411(7). Indoor air sampling in the residential properties was conducted once but no additional sampling was conducted. In addition, MassDEP noted that, in accordance with 310 CMR 40.0414(3) and (4), IRA actions shall be presumed to require the elimination, prevention and/or mitigation of CEPs (unless otherwise rebutted). MassDEP noted that while further assessment activities are performed, mitigation efforts such as installation of air purifying units may be warranted.
Failure to meet the deadline for a CEP evaluation
Concentrations greater than TVs were detected at a site, and MassDEP issued an Interim Deadline Letter (IDL) requiring the RP to submit a Revised IRA Plan describing CEP response actions. Instead, an IRA Status Report was submitted by the deadline making the point that there was no Imminent Hazard posed in the residences and therefore urgent response actions were not required. RAPS 40.0191(2)(a) was cited for failure to follow guidance for timely response actions to address CEP conditions as stated in the VI Guidance and in the IDL. The LPC notes that demonstrating that no Imminent Hazard exists or that a condition of No Significant Risk exists does not obviate the need to address a CEP to the extent feasible.
Providing inadequate justification for identification of compounds of concern for an evaluation of indoor air
In the risk assessment submitted to support a PSS, MassDEP identified a violation of 310 CMR 40.0926(1) because only certain CVOCs were included as contaminants of concern (COC) for the risk assessment; other non-chlorinated VOCs were excluded as COCs without adequate justification per MassDEP. In MassDEP’s opinion, at least one of the two excluded compounds should have been included as a COC.
In another example of this situation, a site was in Remedy Operation Status (ROS) and indoor air sampling was conducted. Naphthalene and other chemicals were detected; the MCP submittal (ROS termination and tier classification extension) attributed the presence of naphthalene to polyurethane from the refinishing of floors and stated that it could not be determined if the other chemicals were site- related. MassDEP issued the RP an ACOP for failure to report a condition of substantial release migration; MassDEP and the site environmental consultant disagreed about whether chemicals in indoor air were or were not site-related.
Evaluation of soil gas data in relation to a GW-2 non-AUL condition
PSSs for a site were filed as PSSs with No Conditions; the PSSs relied on assumptions that in areas where GW-2 standards were exceeded (including an exceedance of MassDEP’s Subslab Soil Gas Screening (SSGS) value in soil gas), structures would not be allowed to be built and occupied in the future. These PSSs were found to be in violation of 310 CMR 40.1041(2)(c)2 and 310 CMR 40.1056(2)(j)4 since the use of these conditions at the site necessitates a Permanent Solution with Conditions. With respect to that portion of the site where the SSGS value was exceeded, MassDEP noted that, although SSGS values are not specifically referred to in 310 CMR 40.1056(2)(i)4, MassDEP has determined that this regulation also applies; this is because such exceedances are directly related to the vapor intrusion pathway, which is the primary exposure pathway of concern addressed by this regulation.
Meeting the requirements of an AEPMM for a Permanent or Temporary Solution Statement
MassDEP continues to conduct audits of sites with AEPMMs, and it appears that the number of AEPMM violations has decreased from previous years. Nevertheless, several NOAFs were found to cite violations related to meeting the requirements for an AEPMM used as part of a PSS or TSS in 310 CMR 40.1025(3) and 40.1026(3).
During one site audit, shutdown tests of the two SSDSs were conducted.. MassDEP did not receive communication of the system failure. In addition, the PSS did not include an operating regimen, as required pursuant to 310 CMR 40.1025(3). A certification of financial resources was also not included in the PSS, pursuant to 310 CMR 40.1025(5). Related to the Activity and Use Limitation (AUL) implemented for the AEPMM, Paragraph 1 of the AUL included language regarding the operation and installation of the SSDS should the footprint of the building change. MassDEP noted that these requirements are actually obligations and should be listed under Paragraph 3 and not as permitted activities and uses under Paragraph 1.
For another site with an AEPMM used as part of a TSS, MassDEP had no record that remote monitoring technology had been implemented. This is a violation of 310 CMR 40.1026(3)(d).
FY 2020 NOAFs Citing Response Action Performance Standards (RAPS)
By Andy Irwin, LSP, IRWIN Engineers and LSPA Loss Prevention Committee
This author reviewed the Response Action Performance Standard (RAPS) (at 310 CMR 40.0191) subset of the FY 2020 MassDEP (the Department) Notices of Audit Findings (NOAFs) to see what actions were cited with violations. A total of five NOAFs with Notices of Noncompliance (NON) were identified as being associated with RAPS, the same number as we found during last year’s review. Three of these NONs were issued by CERO and two by WERO; RAPS was not cited in the NOAFs issued by NERO or SERO.
The LPC has been tracking two types of circumstances that generally lead the Department to call out a RAPS violation:
Type 1: The Department believes that the work done was clearly not scientifically defensible or did not follow technical guidance recognized by the Department and cited at 40.0191.
Type 2. The Department states that the requirements for filing a Permanent Solution Statement (40.1004(1)(b)) have not been met due to significant inadequacies in disposal site characterization.
This year there were only Type 1 findings.
Site 1: ROS Status Submittal – This gasoline site had a Remedy Implementation Plan (RIP) which proposed Soil Vapor Extraction (SVE) with Bio-Sparge, with no mention of Monitored Natural Attenuation (MNA). Although a Remedy Operation Status (ROS) Opinion was never submitted, Phase V Status Reports were submitted as ROS Status Reports after two years of running the remedy. Over the course of the next four years the reports described MNA monitoring being conducted although there was no MNA Operations Maintenance and/or Monitoring (OMM) Plan submitted. Then a status report indicated that the monitoring of secondary MNA parameters was going to be terminated, and that thenceforth "concentrations of dissolved-phase hydrocarbons would be used to evaluate the effectiveness of both active and passive remedial methods at this site." Four years after that, the active SVE-AS systems were shut down and a status report declared the site would be remediated by MNA.
The Department cited two violations. The first was failure to submit a Revised RIP for a significant change in remedy – from active remediation to MNA - and to provide an OMM Plan for MNA (40.0871(6)). The second violation included a) a violation of RAPS (40.0191(2)) for not considering relevant policies and guidelines issued by MassDEP and EPA by failing to develop data adequate to support the premise that MNA was occurring or to justify foregoing geochemical monitoring, and b) a violation of 40.893(2)(b) for not adequately supporting the assertion that the MNA program was adequately designed to achieve a PS. The absence of an ROS Opinion submittal was mentioned but not cited as a violation.
- RAPS TAKEAWAY #1: Changing remedies, including a shift from an “active” remedy to MNA, requires adequate documentation to demonstrate that the new remedy is appropriate, and an OMM Plan is necessary if MNA is to be considered an active remedy.
Site 2: ROS Status Submittal – This gasoline site with ROS had a history of noncompliance, with prior NOAFs in 2013 which required retraction of an RAO and in 2015 for missing status reports. The FY2020 NOAF was the first to cite RAPS regarding the selection and implementation of MNA as the site remedy. Cleanup work had started with a 2003 Remedial Action Plan submittal proposing MNA to achieve a Permanent Solution within 1 to 10 years. The FY2020 NOAF noted the implementation of MNA was not following the OMM Plan and was considered a violation of 40.0891(3). Wells included in the OMM Plan were destroyed and not replaced, which was considered a violation of 40.0872(b) due to the Comprehensive Response Action not meeting design and performance specifications. The FY2020 NOAF also noted that the program of MNA had been running for 16 years and had not achieved the remedial goal, despite projections in 2003 that it would be done within 10 years. Failure to restore groundwater, where feasible, to the applicable standards of quality within a reasonable period of time to protect existing (Zone II) and potential uses of such resources is a violation of 40.0191(3)(d). Failure to adequately design the remedy to achieve a permanent solution was cited as a violation of 40.0893(2)(b). The inadequacy of the MNA program was cited as violation of 40.0191(2)(a) for not following relevant policies and guidance on MNA. Finally, the failure to maintain frequency of sampling to ensure the effective performance and integrity of the remedial action was cited as a violation of 40.0891(5).
- RAPS TAKEAWAY #2: Progress of a remedy under ROS should be monitored following the OMM Plan, and corrective actions should be taken if the remedy is taking longer than projected in the Plan.
Site 3: Temporary Solution Statement – Historical releases of oil and PCBs in a scrap yard had been reported and assigned an RTN. A few years later, a fire occurred within a building at the scrap yard. The Release Notification Form (RNF) for the fire noted a greater than Reportable Quantity (RQ) release of oil and an unknown quantity of PFAS in the AFFF used to control the fire. A Permanent Solution Statement (PSS) was filed for the fire event RTN which neither included testing for PFAS in environmental media nor justified an assumption that PFAS was not present in the firefighting foam. The Temporary Solution Statement (TSS) was subsequently filed for response actions related to the historical releases.
The Department did not criticize the PSS for the absence of PFAS data, even though PFAS had been listed on the RNF for that RTN. Instead, the NOAF rejected the LSP's assertion that the fire release and the historical yard contamination were not comingled, and focused on the absence of PFAS testing in the TSS. The NOAF cited 40.0191(2)(a) for inadequate site characterization and consequent inadequate risk characterization for the substantial hazard evaluation supporting the TSS.
- RAPS TAKEAWAY #3: Don’t report an OHM as having been released and then fail to evaluate its nature and extent, unless it can be demonstrated that the OHM was not in fact released.
Site 4: Permanent Solution Statement – This site was a residential oil release where soil was excavated down to 7.5 feet. No further soil excavation could be conducted due to structural concerns. LNAPL was observed in wells in which groundwater was at 14 feet. LNAPL extraction and surfactant flushing were conducted to treat soils between 7.5 feet and the water table. However, no samples were collected below 7.5 feet before or after treatment to characterize soils in the zone in which LNAPL had been observed in the wells.
RAPS 40.0191(2)(b) and (c) were cited in the NOAF for lack of representative soil characterization data within the LNAPL zone to support the risk characterization for the Permanent Solution. Headspace screening data from soil in that interval was used to estimate an exposure point concentration based on Total Petroleum Hydrocarbon (TPH) measurements in a soil sample elsewhere on the site. RAPS 40.0191(2)(a) was cited for not following the MADEP VPH/EPH Approach guidance because TPH analysis, rather than VPH analysis, was used to characterize soils with headspace screening values greater than 100 ppmv.
- RAPS TAKEAWAY #4A: OHM concentrations should be measured in media within treatment zones after remedy implementation to represent the Site conditions in support of a Permanent Solution.
- RAPS TAKEAWAY #4B: According to VPH/EPH guidance, headspace screening data >100 ppmv for a petroleum release is an indication that VPH analysis must be conducted for site characterization.
Site 5: IRA Status Report - Chlorinated solvent vapors were detected in residential dwellings at concentrations greater than the Indoor Air Threshold Value (TVr), creating a Critical Exposure Pathway (CEP). The Department issued an Interim Deadline Letter (IDL) requiring the PRP to submit a Revised Immediate Response Action (IRA) Plan describing CEP response actions. Instead, an IRA Status Report was submitted by the deadline making the point that there was no Imminent Hazard posed in the residences and therefore urgent response actions were not required. RAPS 40.0191(2)(a) was cited for failure to follow guidance for timely response actions to address CEP conditions as stated in the Vapor Intrusion Guidance and in the IDL.
- RAPS TAKEAWAY #5: Vapor intrusion guidance establishes that, to the extent feasible, timely response actions to mitigate CEP exposures are a priority even when they do not pose a significant risk.
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