A Window into MassDEP Enforcement: The Loss Prevention Committee's Review of  "Uncategorized" NOAFS  

By:  Jeanine Grachuk, Esq., Beveridge & Diamond, P.C. and LSPA Loss Prevention Committee

During our annual review of Notices of Audit Findings (NOAFs), the LSPA’s Loss Prevention Committee (LPC) categorizes all of the NOAFs and other enforcement-related documents issued by MassDEP based on the issues described in the document.  The Fiscal Year 2016 (July 1, 2015 to June 30, 2016) (FY2016) review categorized approximately 543 NOAFs and enforcement documents.  Most fell into the following categories: AUL, Downgradient Property Status, Historic Fill, NAPL, Nature & Extent, RAPS, Risk Assessment, Temporary Solution, and Vapor Intrusion.  Approximately 201 NOAFs and other enforcement documents did not fit into any of these categories. These are discussed in this article. 

 It is important to note that the LPC’s review is not limited to NOAFs and associated Notices of Noncompliance (NONs).  Other types of enforcement documents issued during FY2016 and available on MassDEP’s file viewer were included in our review.  These are or relate to the following:

• ACO – Administrative Consent Order;
• ACOP – Administrative Consent Order with Penalty;
• PAN – Penalty Assessment Notice; and
• UAO – Unilateral Administrative Order.

The LPC reviewed these enforcement documents to identify the types of issues raised by MassDEP and their distribution among the MassDEP regional offices. The distribution of each of these issues is summarized in the following table and described in more detail below.  Please note that some documents raised several issues. 

Submittals Late or Not Made

The largest number of enforcement issues involved submittals that were made late or were not made at all.  This grouping covers a wide variety of situations ranging from late submittal of a single status report to failure to address the release in any way.  Late submittal of one or two status reports is typically addressed with an NON.  If interim deadlines in an NON or a Notice of Responsibility are not met, an ACO or ACOP will likely be issued.  The size of any penalty will increase as the number and significance of missed deadlines increases. 

Many of the enforcement documents reviewed discuss long periods of failures to address the underlying release at a site.  These are more serious situations and are more likely to result in an ACOP, PAN or UAO.

In an effort to provide a sense of the number and level of enforcement of nonresponding sites during this review year, we categorized the late or absent submittals as indicated below.  Please note that these are broad categories intended to give the LSPA membership a sense of the seriousness of the findings.

In many cases, the enforcement document indicates that the PRP had previously filed for and received Financial Inability status.  However, the PRP had not renewed this status each year as required.  As a result, the submittals had become due again, with adjusted deadlines, but were not submitted.

In many cases, the documents examined in the FY2016 review represented the second (or more) time that the issue raised was the subject of a MassDEP enforcement document.  For example, in one case, the ACOP noted that an NON had previously been issued citing the failure to submit a Tier Classification, Permanent Solution, or Temporary Solution within one year.  The ACOP noted as a separate, additional violation the failure to meet the deadlines specified in the NON.  In that case, the penalty in the ACOP was $1,000, suspended if no further violations occurred within the following year. 

In another case, MassDEP issued an NON for failure to submit Phase II and Phase III Reports within two years of tier classification and the Phase IV Report within three years of tier classification (as required under the MCP prior to the June 2014 amendment that extended these time frames).  These reports were filed but were filed after the deadlines in the NON by several weeks.  The parties entered into an ACOP requiring submittal of a Permanent Solution, Temporary Solution, or Remedy Operation Status by a certain date and imposing a penalty of $30,000, of which $27,000 was suspended. 

Administrative / Extended Deadlines

The second largest grouping of NOAFs reviewed involved administrative changes to previously issued documents, such as extending deadlines. 

Failure to Report a Release within the Regulatory Timeframe

The third largest grouping of NOAFs involved sites at which there was a failure to report a release of oil or hazardous material to MassDEP within the regulatory timeframe.  For all but one of the 13 sites, an ACOP was issued with a penalty ranging from $4,500 to $43,500.  For example, there were three sites for which a two-hour release was reported approximately two months late.  Each resulted in an ACOP with penalty, but in all three cases the ACOP addressed other noncompliance issues in addition to the late reporting.  The penalties were (1) $4,500; (2) 14,500; and (3) $43,500 respectively. In the one case in which an NON was issued and a penalty was not assessed, a 72-hour release was reported as a 120-day release.  An NON is unusual in cases in which a two-hour or 72-hour release is reported late because these are usually considered “higher level enforcement” in MassDEP’s Enforcement Response Guidance.

There does not appear to be a clear relationship between the amount of time that the report was late and the severity of the penalty.  Instead, the amount of the penalty appears to be determined by many factors that include the severity of the violation (as well as the other violations that may be addressed in the same ACOP), cooperation by the PRP to achieve a settlement, and whether there is a pattern of noncompliance.  In addition, in many cases a portion of the penalty is suspended, which means that it does not need to be paid unless another violation occurs within the time frame specified in the ACOP, usually one year.

Failure to submit required plan before conducting response actions

The next largest grouping consists of enforcement documents addressing the failure to submit a required plan or otherwise receive approval before conducting response actions. 

IRA Approval

In three cases, response actions were initiated prior to notification of the release or without approval of an Immediate Response Action (IRA).  Two of these occurred in SERO.  In the first instance, which related to a release of more than 10 gallons of oil to pavement and soil, several violations occurred:  the release was not timely reported; response actions occurred prior to notification; and IRA work occurred prior to approval.  The remedial actions that occurred without approval were the deployment of Speedi-dry and the excavation and disposal of soil.  The enforcement document was an ACOP that included a penalty of $27,600, of which $7,475 was suspended.

In the second instance, which also occurred in SERO, dish detergent was applied as an oil dispersant to a hydraulic oil release to surface water without approval.  Other violations included a failure to submit an IRA Plan and Release Notification Form (RNF) within 60 days after the oral release notification.

In the third case, which occurred in CERO, a penalty of approximately $43,000 was levied in an ACOP for several violations:  late notification of a 2-hour release (about two months late); failure to conduct response actions expeditiously; failure to submit an IRA plan in a timely manner (about two months late); beginning an IRA without MassDEP approval; and submitting the RNF two months late.

RAM Approval

There were five instances in which work was conducted without approval of a Release Abatement Measure (RAM).  In four of these cases, work occurred before the RAM Plan was filed.  In the remaining case, MassDEP identified as a violation a failure to file a modification of the RAM Plan.  The original RAM Plan described demolition of on-site buildings, soil removal and disposal, and dewatering in preparation for construction work.  A revised RAM Plan was subsequently filed to add the installation of a groundwater treatment system consisting of a septic tank containing zero valent iron and sand and a leaching field, and the removal and treatment of 1,2-DCA impacted soil and groundwater.  A later status report revealed that the work also included installing deep infiltration columns and connecting them to the leaching field.  MassDEP concluded that the change in the work revealed in the status report was a modification in violation of the requirement to submit a modified RAM Plan.

Remediation Waste

The next category involved remediation waste issues.  There were eight documents in this category. Most of them related to improper transport of soil under a Bill of Lading, failing to secure a stockpile, or stockpiling soil for more than 120 days.  Where remediation waste was the only issue, an NON was issued.  However, in most cases other issues were identified, most often failure to timely report the release.  In these cases, an ACOP was issued.

Retraction

Three of the documents were retractions of previously-filed NONs.  Each of these was issued by CERO.  In one case, the NON was sent in error because of an incorrect street address. The other two instances related to AULs; MassDEP did not retract the finding that a violation had occurred but instead relieved the PRP of the obligation to correct the violation.  In the first, the NON had required recording of an affidavit on the title to fix the error of not referring to a mortgage in the AUL.  However, because the land was registered land, Massachusetts real property law does not allow the use of an affidavit to resolve this issue.  In the second, MassDEP had required filing a confirmatory instrument but the PRP subsequently terminated the AUL, and therefore the confirmatory instrument did not need to be filed.

The Loss Prevention Committee hopes that this article provides some insight into the enforcement documents issued by MassDEP during FY2016. 

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The CAM Hexavalent Chromium Sampling Protocol: Why Do I Need pH/ORP Data, and What Do I Do with it?

By Jim Young, LSP, Cooperstown Environmental and LSPA Past President

Several years ago, MassDEP added a new analytical protocol to the Compendium of Analytical Methods (CAM) for proper sampling for hexavalent chromium (Cr VI) in soil, one that included a requirement to sample for pH and oxidation/reduction potential (ORP).  It appears that the reasons for these additional requirements may not be well understood by everyone in the regulated community, nor is the appropriate application of the pH/ORP data to the chromium data.  This article attempts to clarify these issues.

The necessity of the new Cr VI sampling protocol really arises only in one fairly unique situation: when the matrix spike / spike duplicate for an LSP’s Cr VI samples is below the acceptable recovery range.  In this situation, the LSP would be required to distrust, and perhaps reject, the Cr VI analytical results.  However, if the LSP’s pH/ORP data indicate that the sampled soil is from reducing conditions, he may be able to justify relying on the analytical results despite failing the QA/QC requirements of the analytical method.

Regulatory Framework

Chromium typically occurs in the environment either as Chromium III (more prevalent) or Chromium VI.  Chromium can be found in other valence states, but they are typically inconsequential for work that LSPs do.  Chromium VI (hexavalent chrome) is significantly more toxic than Chrome III, and therefore has a lower notification threshold (100 mg/Kg in S-1 soil, versus 1,000 mg/Kg for Cr III).  However, the standard analysis for chromium is for total chromium (without regard to valence state), so MassDEP requires that notification decisions based solely on total chromium analyses assume that all chromium is the more toxic Cr VI variety, and use the lower reporting threshold.  To avoid having to report total chromium concentrations between 100 mg/Kg and 1,000 mg/Kg, LSPs can re-analyze their samples specifically for Cr VI, in hopes of demonstrating that the fraction of total chromium that is hexavalent is low or nil. 

It is also important to remember the portion of standard QA/QC procedures associated with matrix spikes and spike duplicates (MS/MSD).  Labs run metals analyses in batches generally larger than the group of samples one LSP submits, and the lab will choose a sample from the batch at random to spike with a small, known quantity of Cr VI (and other metals), to check the ability of the analytical instrument to accurately detect the presence of Cr VI (and other metals).  The CAM stipulates that when an LSP requests metals analyses, he request that one or more of his own samples be selected as the MS/MSD  - and if the instrument’s recovery of the spike in the LSP’s sample is above or below the range stipulated as acceptable by the analytical method (70%-120%), the LSP must question, or even reject, the analytical results of his samples. 

If you are testing for Cr VI, and none of your QA/QC parameters are questionable (especially recovery of Cr VI in your MS/MSD), then you probably have no need to read further here.  If, however, your MS/MSD recoveries are outside (especially below) the acceptable range, read on about the quirks of chromium chemistry.

Chromium Chemistry

In oxidizing conditions, which are typical at most sites, both Cr III and Cr VI are stable; both species tend to maintain their existing valence state.  In reducing conditions, however, Cr VI is unstable, and fairly quickly reduces to Cr III.  Thus, a release of Cr VI into reducing site conditions will tend to convert to the less toxic Cr III, unless the release is large enough to overwhelm local environmental conditions.  If the release does not change prevailing conditions, an analysis for Cr VI of soil from reducing conditions is likely to (rightly) indicate that little or no Cr VI is present, because it has been reduced.

Keep in mind, however, that a sample that maintains the reducing condition in the sample jar, and that is spiked in the lab with Cr VI, is likely to also reduce the spike (MS/MSD).  This could potentially result in a very low spike recovery (below the acceptable 70-120% range), which would suggest that the analyses were unreliable.  This, in turn, could lead the LSP to conclude that the non detect (ND) results for Cr VI should be rejected, even though they might actually be correct.  It is therefore important to demonstrate that reducing conditions exist, so that the poor spike recovery can be explained, and the LSP can justify not rejecting the analytical data.  This is where pH/ORP data come in.

ORP versus Eh, and pH

Appended to the CAM chromium protocol is an Eh/pH diagram (Eh being another expression of oxidation/reduction) that shows the range of conditions in which Cr VI and Cr III are each stable.  If the LSP’s pH/ORP data plot clearly and consistently within the reducing field on the diagram, where Cr VI is unstable, then the LSP can make the argument that he need not reject his Cr VI data due to poor MS/MSD recoveries, because the poor recoveries are probably due to reduction of the spike by the sample matrix.

Most LSPs are aware that the holding time on pH/ORP samples is 24 hours.  As a result, the LSP cannot hold his pH/ORP samples pending the results of his total chromium analyses; they should be run concurrently.  The CAM protocol also stipulates that Cr VI samples be in a separate container, so that reducing conditions that would be important to identify are not compromised, as they might be when a single container is opened for the total chromium analysis (and potentially oxidized), and opened again later to test for Cr VI.

There are some further wrinkles, however, with respect to measuring Eh/ORP.  First, although the units (millivolts) of Eh (the oxidation/reduction parameter used in the stability diagram) are the same as for ORP (the parameter typically measured in the field, and often by labs), they will not have the same value for the same conditions.  Eh is converted to ORP or back by subtracting or adding a certain number of millivolts.  However, the number of millivolts to add or subtract is a function of the instrument used to measure ORP (if your field or lab results are reported as Eh, no conversion is required before using the diagram).  Such instruments typically have either a mercury chloride (“calomel”) or a silver chloride electrode.  Conversion of ORP measurements to Eh requires addition of 244 millivolts when measured with a calomel electrode, and 199 millivolts when measured with a silver chloride electrode. 

Although this issue is alluded to in a footnote on the Eh/pH diagram in the CAM (as an oblique reference to the difference between Eh and ORP), the method does not provide explicit guidance about the need to convert ORP data to Eh data, or how to do so.  While using unadjusted ORP data may not change the conclusion concerning whether sample conditions were oxidizing or reducing (the change of value is not that large), it is nonetheless important to be aware of the issue for the sake of accuracy, or when near boundary conditions.  Thus, the LSP should identify the type of electrode installed in his field instrument, or ask the laboratory what type of electrode the lab employed.  As an aside, it is also worth noting that several laboratory representatives have commented that there is no scientifically-rigorous way to measure the ORP of soil -  the consistent comment is that ORP values measured in a soil/de-ionized water slurry (the most typical field method) have as much to do with the water as they do the soil.

Summary

The check list below is provided to assist the non-chemist LSP with complying with the CAM method.  The following bullets highlight some useful reminders, although it is not intended to be exhaustive, and there is no substitute for familiarity with the CAM protocol.  In addition, compliance with this checklist does not, of itself, guarantee presumptive certainty:

• Check with your lab in advance of sampling to be sure that the lab’s instruments and procedures are set up to complete a CAM-compliant Cr VI analysis.
• Read the ORP meter manual in advance of field work for information about how to measure ORP.  The procedure will probably require making a slurry of the soil sample using de-ionized water, which you will need to purchase ahead of time (most supermarkets now carry DI water).
• During sampling, collect Cr VI, pH, and ORP samples each in a separate jar.
• Ask your lab if it can provide redox measurements.  If yes, ask whether the lab reports redox data as Eh, or as ORP.  If the latter, ask the lab what type of electrode its instrument uses to measure ORP.  If the lab cannot provide Eh/ORP analyses, you may wish to find another lab, or measure pH/ORP in the field.  Remember that the holding time on pH/ORP samples is 24 hours.
• If you are testing ORP in the field, ask the instrument rental agency what type of electrode their instrument uses, or consult the instrument manual or manufacturer.
• Collect pH/ORP samples at the same time as your initial, total chromium samples, and submit them for analysis (or analyze yourself) even before you know that you will need pH/ORP data.  The holding time on pH/ORP samples is typically too short (24 hours) to permit your waiting for total chrome results to decide whether to run pH/ORP.
• When completing your Chain of Custody for Cr VI analyses, instruct the lab to use your sample(s) for the matrix spike/matrix spike duplicate.
• Upon receipt of Cr VI data, review the MS/MSD recoveries for acceptability.  If the recoveries are within the acceptable range, then your Cr VI results are probably usable without additional concerns or arguments.
• If the MS/MSD recoveries are outside (especially below) the acceptable range, convert your ORP data to Eh data.
• Plot your ORP data (converted to Eh), along with pH measurements, on the Eh/pH diagram appended to the method; if your samples fall consistently in the reducing field, then you may be justified in concluding that the poor MS/MSD recoveries are attributable to reduction of spiked Cr VI to Cr III, and that the sample results need not be rejected simply because the MS/MSD recoveries fall outside the acceptable range.

It should be understood that the scenario the Cr VI protocol anticipates is seldom encountered, and will seldom require an LSP’s additional attention. In more typical, oxidizing conditions, Cr VI is stable, and analytical results are not generally subject to the QA/QC concerns described above.  Nonetheless, at the point that the presence of Cr VI becomes an issue, and at the point that the LSP seeks presumptive certainty for his chromium analytical results, understanding all the small details of the CAM protocol becomes important.  

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