October 2018 Newsletter

In This Issue

The LSPA would appreciate your feedback on the articles included in the October 2018 newsletter. Please send your comments and questions to [email protected].

President's Message

Hello and welcome to the new LSPA year. For most people it seems like the annual cycle of school and work begins again in September and, I think, it’s no different for the LSPA. You may have noticed that our newsletters don’t come as frequently as they used to. Why? I can think of a few reasons; but more on that later.

This year is going to be a productive and fun one. As you can tell from the email blasts, we have plunged headlong into the LSPA’s 25th anniversary celebration. Don’t forget to sign up for our 25th anniversary dinner at Mechanics Hall in Worcester on Thursday, October 25. In addition to musical performances, we will have a Story Slam featuring five storytellers from the LSPA and MassDEP. We also hope to have a few more anniversary events this coming winter so stay tuned.

This year is also the 25th anniversary of the “new” MCP, the 20th anniversary of the Brownfields Act, AND the 30th anniversary of the enactment of Massachusetts General Law Chapter 21E (Massachusetts Oil and Hazardous Material Release Prevention and Response Act). I think it’s fair to say that Massachusetts has done more than any other state in linking waste site cleanup and economic development and then, most importantly, gone about actively supporting that connection through legislation, policies, and funding.

We heard more about this connection at our first member meeting of the year, on September 25th.

First we heard a high energy and far ranging talk by Jay Ash, Secretary of Housing and Economic Development. Secretary Ash covered topics including his time as Mayor of Chelsea, collaboration with several LSPA members with whom he has worked (all good experiences!), Governor Baker’s bipartisan administration, exciting economic development projects happening statewide, and why he is optimistic about the Massachusetts innovation economy.  MassDEP Commissioner Marty Suuberg gave a broad reaching overview of the 25 year privatized program and generously acknowledged the important role of the LSPA in this work. He spoke about MassDEP priorities going forward, including the use of new technology to improve government transparency, emerging contaminants, climate change and resiliency, and brownfields development. He also said to expect the most recent MCP amendments to be released for public comment before the end of 2018. Both speakers addressed the value of the work that LSPs and other practitioners do, and its importance to the economic and environmental health of the Commonwealth.  One LSP remarked the next day that he “left feeling grateful to be in the LSPA.” Take a look at some photos from that event. 

LSPA committees have started up their regular meetings after a break for (at least) part of the summer. Check out the list of LSPA Committees to see the meeting schedule, click on the committee name and it will take you to the committee-specific page. 

Committees are where the action happens within the LSPA. No disregard to my fellow Board members! Ideas, initiatives, and questions typically arise at the committee level or are directed there for consideration if they arise elsewhere. Once an initiative is better defined, has a “champion” (or two), and some action items are identified, it makes its way to the LSPA Board for approval or action. If you aren’t involved with a committee, I encourage you to take the time to sit in on one, or phone in, or “Zoom” in for a virtual meeting. Here’s a quick overview of some of the work happening at the committee level right now.  

  • If you are new to the waste site cleanup field or new to MA or new in your job or want to network while eating and drinking in a cool spot – check out the Emerging Professionals Committee. When they’re not inside, they’re cleaning up the Charles River or boating in Boston Harbor.
  • Roll up your sleeves for a review of MassDEP’s NOAFs for FY 18; over 300 NOAFs for review on topics like DPS, MNA, Vapor Intrusion, and NAPL. Ready to take a multidisciplinary deep dive along with risk assessors, attorneys, and LSPs? The conversation is always fascinating at the Loss Prevention Committee.
  • We can hear the thunder getting closer; it’s the rumbling of the 2018 Amendments to the 2014 MCP. When they land, the Regulations Committee will be all over the public draft document with questions, comments, and suggestions. They welcome more reviewers.
  • Are there MCP and practice-related topics and issues you’d like to learn more about? Instructors or speakers you’d like to bring to the LSPA? Whether you work in Western MA (W. MA Committee) or Eastern MA (Member Services and Programs Committee), we encourage your initiatives –the floor is yours. And the Education Committee is already hard at work on courses for Winter and Spring 2019.
  • The LSPA’s legislation S.534 - An Act relative to the remediation of home heating oil releases had lots of support in the MA Senate but still did not get passed in July. We made great progress but still have a ways to go. Help the Legislative Committee work toward making insurance coverage mandatory for home heating oil releases. 
  • Shortage of disposal sites for COMM-97 soils. Asbestos in soil. The impact of changing building codes on monitoring and treating indoor air. Is that enough? Or do you need more technical challenges? Join the Technical Practices Committee to learn more.   
  • If you are an LSP, engineer, scientist, risk assessor and someone else who works alone or is the only one of your profession (not just LSPs) in your organization, you might want to check out the Sole Practitioners Group. This group just formed a few months ago (three cheers for new initiatives!) and the LSPA is eager to support professionals who do not always have access to the same resources as those in larger firms.

Now for the newsletters. The LSPA’s newsletters are published when we have a critical mass of articles, about 7 or 8 articles per edition. In the past few years we are finding that we have more “outlets” for newsy items that once appeared in the newsletter. For example, we have LinkedIn for posting LSPA Board election results and job openings. We have Facebook and LinkedIn for writing about and posting photos from committee outings and other events.  And we have the LSPA blog for all that, and more. These options are timelier for getting the word out than waiting for a quarterly newsletter. In light of this we do include a section called “LSPA Blog Highlights” at the beginning of each newsletter; this highlights one article from the LSPA Blog and provides links to all blog entries. I encourage you to check out the LSPA’s LinkedIn page, Facebook, and the LSPA Blog on a regular basis.

If you have any additional ideas for the newsletter or other ways of info-sharing within the LSPA, please don’t hesitate to reach out to me at [email protected] or Wendy Rundle, Executive Director at [email protected].  I hope to see you at an LSPA 25th anniversary event in the coming months. 



Marilyn M. Wade, P.E., LSP, President

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Blog Highlights


In addition to the article posted below from June 2018, the LSPA Blog, called LSPA News & Announcements on the homepage of our website, has useful information on the Newly Formed LSPA Sole Practitioners Group, Who to Contact with eDEP Questions, and information about upcoming events. Click here for past blog posts and visit the LSPA website regularly for new postings.

MassDEP Finalizes Guidelines for Five PFAS in Drinking Water

MassDEP released drinking water guidelines in June 2018 for five PFAS chemicals and sent the following information to Public Water Suppliers and other parties.

From the Waste Site Cleanup perspective, the background information on the development of the guideline will also serve as background information for Waste Site Cleanup’s soon-to-be-proposed MCP Method 1 GW-1 Standard for PFAS. 

MassDEP expects to keep us up-to-date throughout the summer on the status of the proposed MCP revisions and MassDEP’s approach to PFAS.

In February, 2018, the Massachusetts Department of Environmental Protection (MassDEP) convened a panel of experts to consider whether the Department should issue drinking water guidance for a group of five per- and polyfluoroalkyl substances (PFAS). This email will update you on the results of MassDEP’s additional work, the advice it received from the panel, and next steps.

PFAS are a group of man-made chemicals that do not readily break down in either the environment or the human body and, therefore, can build up over time. There is human and experimental lab evidence that exposure to PFAS can lead to adverse human health effects. PFAS have been used in many consumer products, including firefighting foam, and in a number of industrial processes.

There are currently no enforceable federal standards for PFAS chemicals in drinking water. In 2016, the U.S. Environmental Protection Agency published a Health Advisory for two PFAS chemicals - perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). In February 2018, based upon additional research on the topic, MassDEP proposed expanding upon the EPA Health Advisory.

MassDEP has solicited and received advice from its panel of experts. As a result, MassDEP’s Office of Research and Standards (ORS) has established a drinking water guideline for five chemicals that are part of a larger group of PFAS. 

MassDEP’s ORS Guidance values are usually developed when there are no federal standards or guidance. As noted above, the U.S. Environmental Protection Agency published a Health Advisory for the sum of two PFAS chemicals - perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) at 0.070 micrograms per liter (μg/L) or 70 parts per trillion (ppt). Due to similar health concerns, MassDEP established its guideline to include the following three additional PFAS chemicals: perfluorononanoic acid (PFNA), perfluorohexanesulfonic acid (PFHxS), and perfluoroheptanoic acid (PFHpA). The ORS Guideline (ORSG) is 70 ppt, and applies to the total summed level of all five compounds. Based on this ORSG, MassDEP recommends the following:

  1. Consumers in sensitive subgroups (pregnant women, nursing mothers and infants) not consume water when the level of the five PFAS substances, individually or in combination, is above 70 ppt.
  2. Public water suppliers take steps expeditiously to lower levels of the five PFAS, individually or in combination, to below 70 ppt for all consumers.

According to the Massachusetts Drinking Water Regulations [310 CMR 22.03(8)], if MassDEP finds on the basis of a health assessment that the level of any contaminant in drinking water at a Public Water System poses an unacceptable health risk to consumers, the PWS must take actions to achieve safe levels and also to provide public notice. 

Large Public Drinking Water System (serving more than 10,000 persons) have already tested for these chemicals. Approximately 3 percent of the Public Water Systems tested in Massachusetts found PFAS at some level. MassDEP is working with those affected systems.  MassDEP is also continuing to research where PFAS may have been used and is considering a testing program for PFAS in a targeted universe of smaller Public Water Systems that are close to areas where PFAS has been found or may have been used. MassDEP will keep you posted as we move forward with additional work in this area.

For more information:

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Remembering Iris Davis of MassDEP, NERO  


In early June 2018, MassDEP, the LSPA, and the Massachusetts environmental community lost an accomplished, well-respected, and dedicated colleague. The obituary for Iris Davis, published in The Boston Globe on June 30, 2018 is below

Iris Wade Davis, 61, died in Boston on Saturday, June 9 of complications from cancer. She was a cherished friend, a dependable colleague and a generous soul. Iris grew up in Vineyard Haven, MA where she was a high school scholar, musician and 3-season athlete – a combination of talents she maintained throughout her life. She moved off island at age 17 to attend Bowdoin College, where she shared her welcoming personality, her generosity of spirit and her earnest intent to make the world a better place. Iris loved her years at Bowdoin and was honored with many awards and leadership opportunities as a student and as an alumna. In 2014 she was elected to the Bowdoin College Board of Trustees. In 1984, Iris received her Masters in Public Health from Boston University School of Public Health where she also sat on the Board of Trustees. Her 33-year professional career was spent at the Massachusetts Department of Environmental Protection. The citizens of Massachusetts benefited in countless ways from her professional integrity, work ethic and advocacy for environmental protection and justice. Iris never forgot a face and in the most unlikely places (to the utter astonishment of her friends) would bump in to someone she'd met once upon a time. She had an earnest or hilarious quote for nearly every occasion, which she attributed mostly to her family elders, and she enjoyed sharing memories of her travels and friendships over a glass of good bourbon. Iris appreciated the competition and partnerships that emerge through sports. She spent many hours volunteering as a youth basketball coach in the Boston area. She volunteered for the Boston Marathon every year and was known to swing a golf club in support of any good cause. She humbly lived her life in service of the common good. She brought her keen intellect and sense of fairness to her work and play. Her contributions to our community are too numerous to list and her grieving friends are many. Iris was the loving daughter of Wanza and Bettie Wade Davis, both deceased. She is survived by her sister, Carro D. Johnson, her brother-in-law, Dennis Johnson, and her niece, Dawn Meacham, all of Vineyard Haven.

Donations in her memory will be gratefully accepted by the Iris W. Davis Memorial Fund, P.O. Box 2544, Woburn, MA 01888, to benefit educational and environmental justice initiatives. Also accepting memorial donations is the Iris W. Davis Class of 1978 Scholarship Fund, Bowdoin College, 4100 College Station, Brunswick, ME 04011. A celebration of her life is being planned for September. 

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Current Practice: Use of AULs where NAPL with Micro-Scale Mobility Remains - Initial Review of Practice 

By Wesley Stimpson, LSP, Technical Practice Committee and LSPA Past President 

As specified at 310 CMR 40.1012(2)(d), an AUL is required as a condition to the Permanent Solution Statement at a release site where remaining NAPL exhibits “Micro-scale Mobility” and the Permanent Solution Statement must be filed as a Permanent Solution Statement with Conditions. This article presents the results of the author’s review of more than 50 Permanent Solution Statements filed with MassDEP from the effective date of the 2014 Massachusetts Contingency Plan (MCP) revisions through April 2017, for sites where NAPL was once deemed to be present. The review was undertaken to consider three questions:

  1.  How is the LSP practice (the Practice) addressing the long-term presence of NAPL with micro-scale mobility in Permanent Solution Statements?
  2. How closely is the Practice following the regulations and the intent of MassDEP’s Policy #WSC-16-450 (the Guidance) to document the presence of NAPL with micro-scale mobility?
  3. How well is the Practice doing with providing notice of the need to address NAPL-specific management and health and safety issues, if it could be exposed by future excavation? 

MassDEP’s 2016 LNAPL Guidance

Section 4.3, Activity and Use Limitations, of MassDEP’s February 2016 Final Policy #WSC-16-450 – Light Non-aqueous Phase Liquid and the MCP: Guidance on Site Assessment and Closure addresses the required use of AULs when NAPL with micro-scale mobility remains.

The Guidance specifies that the AUL should provide notice and establish the appropriate measures to be taken to manage potential future exposure to NAPL in the event of construction activities in the area. This obligation would be included in the Obligations and Conditions section of the AUL in the same manner as Health and Safety and Soil Management Plans. The Guidance envisions the establishment of a NAPL Management Plan (NMP) whose objectives, scope, and general provisions would be outlined in the Obligations and Conditions of the AUL.  As indicated in the Guidance, the NMP would address the need for NAPL containment, collection, recovery, storage and removal, worker protection measures related to the NAPL consistent with the Health and Safety Plan, monitoring, excavation safety, etc.

The section goes on to state that if it can be demonstrated that the thickness of visible NAPL in an excavation, boring, or monitoring well remaining at a disposal site for "any foreseeable period of time" is less than ½ inch, an AUL is not needed and the disposal site can be closed as a Permanent Solution with No Conditions.

Review Findings

The author reviewed 54 Permanent Solution Statements filed for NAPL sites; 17 were filed with No Conditions and 37 were filed with Conditions. Of the 37 filed with Conditions, 29 sites included a filed AUL and the other 8 Sites had other forms of Conditions. Of these 29 Permanent Solution Statements with Conditions that were AULs, 18 of the AULs included some type of statement addressing NAPL, although not all the AULs included terms consistent with those indicated by the Guidance. The remaining 11 AULs did not mention the presence of NAPL with micro-scale mobility. To see why more than one-third of the AULs for sites at which NAPL was present did not address the continuing presence of NAPL with micro-scale mobility, the reviewer looked at how the Practice is addressing NAPL with micro-scale mobility that may remain after the filing of the Permanent Solution Statement.  

In 22 of the 54 Permanent Solution Statements reviewed, the continued presence of NAPL with micro-scale mobility was not evaluated. Although the Permanent Solution Statements did not clearly state it, the most frequent reason for not addressing the possible presence of NAPL with micro-scale mobility was that response actions undertaken included excavation to remove NAPL. This action generally led to the filing of a Permanent Solution Statement with No Conditions. However, many Permanent Solution Statements had no mention, or only a one sentence mention, of the possible continuing presence of NAPL with micro-scale mobility and no additional evaluation.

DOCUMENTATION OF NAPL - For the 11 Permanent Solution Statements that included an AUL which did not address the continued presence of NAPL or NAPL with micro-scale mobility, the following general categories appear to apply:

  • NO REASON GIVEN - The presence of NAPL with micro-scale mobility was not addressed in the Permanent Solution Statement for 6 sites.
  • EXEMPTION - The ½-inch NAPL thickness exemption criterion provided in the Guidance was used to exclude addressing NAPL with micro-scale mobility at 2 sites, even though an AUL was filed.
  • NO NAPL – JUST PETROLEUM - The term non-aqueous phase liquid (NAPL) was not used in the AUL for 2 sites; instead, the term “petroleum contamination” was used, interpreted by the reviewer as indicating concern for a different condition.
  • STATEMENT WITHOUT JUDGMENT - The Permanent Solution Statement for 1 site stated that NAPL with micro-scale mobility was absent without any evaluation or other discussion.

AUL OBLIGATIONS FOR NAPL - Looking closer at the AULs for the 18 Permanent Solution Statements with Conditions that included an AUL addressing NAPL in some manner, 9 of the AULs included obligations to address NAPL-specific soil management and health and safety issues as is presented in the Guidance. For the remaining 9, the following deficiencies from Guidance were found:

  • MISSING AUL REQUIREMENTS FOR NAPL HEALTH AND SAFETY - An obligation to address NAPL-specific soil management/disposal issues was included in 5 of the AULs, but without specific obligations to address NAPL health and safety issues. 
  • ENTIRELY MISSING AUL REQUIREMENTS FOR NAPL - The presence of NAPL with micro-scale mobility was discussed in Exhibit C, but no NAPL-specific Obligations were included in 4 of the AULs.

On the positive side, an obligation to not create future preferred flow pathways was included in 2 of the AULs, a provision not discussed in the Guidance.  

SHOWING AREA AFFECTED BY NAPL - Most of the AULs did not include a plan indicating the limits of where NAPL with micro-scale mobility existed on the site. By default, this means that the obligations for NAPL with micro-scale mobility would apply to the entire AUL area, which often is a much greater area than the portion of the site containing NAPL with micro-scale mobility.

Assessment of Findings

More than 40 percent of the Permanent Solution Statements reviewed by the author for sites reporting the presence of NAPL did not appear to address the issue of NAPL with micro-scale mobility as it is regulated by the MCP.  As presented in the opening paragraph, 310 CMR 40.1012(2)(d) states that where remaining NAPL exhibits “Micro-scale Mobility,” an AUL is required as a condition to the Permanent Solution, and the Permanent Solution Statement must be filed as a Permanent Solution with Conditions. 

This review indicates that the Practice, through April 2017, has not always undertaken an evaluation of NAPL with micro-scale mobility.  It is the reviewer’s opinion that, in most cases, such an evaluation could have concluded that an AUL was not required, using the ½-inch thickness exemption provided in the Guidance.  When NAPL with micro-scale mobility was determined to be present, the Practice often has not documented its continued presence using an AUL to provide notice of the NAPL and to address NAPL-specific management and health and safety issues.  

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An Overview of Temporary Solution Requirements and Review of FY2017 Temporary Solution Enforcement Notices

By James H. Zigmont, LSP, CDM Smith, and the LSPA Loss Prevention Committee

This year’s Loss Prevention Committee review of enforcement notices involving Temporary Solutions identified 27 disposal sites that were recipients of Notices of Audit Findings (NOAFs) or Notices of Noncompliance (NONs), or both. An additional disposal site received a Unilateral Administrative Order and a Penalty Assessment Notice. For this year’s review, which covered fiscal year 2017 (July 2016 through June 2017), not all enforcement news for Temporary Solutions was bad: of the 27 disposal sites, eight received NOAFs that found no violations relating to the submittal of a Temporary Solution Statement or the operation, maintenance, and monitoring thereof. In contrast, last year’s review (fiscal year 2016) identified 30 disposal sites that were subject to Temporary Solution enforcement notices, 29 of which received NONs and each of which was cited for at least one violation. 

This year’s review identified regional distinctions among the enforcement notices. Whereas notices from the Western and Central Regional Offices typically included site-specific descriptions of response actions and, as applicable, violations, the Northeast Region exclusively transmitted NONs as form letters identifying a failure to submit a 5-year Periodic Review Report. MassDEP’s Southeast Region transmitted no enforcement notices relating to Temporary Solutions.

In general, and consistent with past years, the most typical violations involved failure to maintain compliance with Post-Temporary Solution regulations. These included failure to submit Post-temporary Solution Status Reports (310 CMR 40.0898), Remedial Monitoring Reports (310 CMR 40.0898), and 5-year Periodic Reviews (310 CMR 40.1050(4)(b)). A number of violations included the failure to perform Post-temporary Solution operation, maintenance, or monitoring as required in Temporary Solution Statements.  

In considering ongoing compliance needs of Temporary Solution Statements, it is useful to review the history of Temporary Solution regulations especially since, for many of the sites included in the 2017 enforcement notices, Temporary Solution Statements were submitted long before the current 2014 MCP Amendments. Prior to 2006, there was but one type of Temporary Solution: a Class C Response Action Outcome (RAO) Statement. The Class C RAO Statement applied to those sites for which a Phase III evaluation demonstrated that a Permanent Solution was infeasible and a risk characterization concluded that a Substantial Hazard did not exist. The Class C RAO Statement required completion of a 5-year Periodic Review of the Temporary Solution that included a renewed evaluation of the feasibility of achieving a Permanent Solution. 

MCP amendments in 2006 divided Temporary Solutions into two types: a Class C-1 RAO Statement for Temporary Solutions where a Permanent Solution was deemed infeasible and a Class C-2 RAO Statement for which a Permanent Solution was deemed feasible at some time in the future. As before, a condition of No Substantial Hazard and completion of a Phase III evaluation were prerequisites to submittal of a Temporary Solution RAO Statement. However, the Class C-2 RAO Statement, which required active Tier Classification, afforded what was intended to be a short-term RAO place holder while response actions continued toward a Permanent Solution.

Under the 2014 MCP Amendments, Class C RAOs are grouped back into a single Temporary Solution category (310 CMR 40.1050). However, the prospect of achieving a Permanent Solution, as demonstrated in a Phase III evaluation, must still be discussed as part of the Temporary Solution Statement. A Temporary Solution that is expected to achieve a Permanent Solution requires active Tier Classification (310 CMR 40.1050(5)(b)) and, assuming Comprehensive Remedial Actions are performed toward achievement of a Permanent Solution, submittal of semi-annual Post-Temporary Solution Status Reports and Active Remedial Monitoring Reports (310 CMR 40.0898). However, these sites do not need to prepare 5-year Periodic Review Opinions (310 CMR 1050(5)). For those Temporary Solution sites for which a Permanent Solution is deemed not feasible, Tier Classification is not required (310 CMR 40.1050(4)), under the assumption that further remedial actions will not be performed (310 CMR 40.1067(7)). However, 5-year Periodic Review Opinions must be filed (310 CMR 40.1050 (4)(b)), accompanied by updated Substantial Hazard Evaluations (310 CMR 40.0956).

Temporary Solution sites for which a Permanent Solution is deemed not feasible may require that Comprehensive Remedial Actions be taken simply to maintain a condition of No Substantial Hazard. For such sites, semi-annual Post-Temporary Solution Status Reports and Active Remedial Monitoring Reports (310 CMR 40.0898), as well as 5-year Periodic Reviews (310 CMR 40.1050 (4)(b)) and updated Substantial Hazard Evaluations (310 CMR 40.0956), must be filed. Contrary to the requirements at 310 CMR 40. 1067(7), site-specific correspondence from MassDEP indicates that for the time being, these sites do not require active Tier Classification. However, new regulations addressing Tier Classification and Post-Temporary Solution remedial actions intended to maintain a condition of No Substantial Hazard are expected in the upcoming round of MCP amendments.

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Filing A Downgradient Property Status Opinion? Know Your Site History First

By Michelle N. O’Brien, Esq., Pierce Atwood, and LSPA Loss Prevention Committee

The LSPA Loss Prevention Committee’s (LPC’s) review of MassDEP Notice of Audit Findings (NOAFs) issued in Fiscal Year 2017 for Downgradient Property Status (DPS) Submittals made one thing abundantly clear: you must investigate and evaluate thoroughly the history of your site before asserting that there is no on-site source of oil or hazardous materials (OHM). On several occasions MassDEP terminated DPS Submittals or required either a revised DPS Submittal or DPS termination to be submitted because of insufficient information.

To be eligible for DPS, Section 40.0183 of the Massachusetts Contingency Plan (MCP) (310 CMR 40.0183) requires a property owner to demonstrate that, among other things, the source of the release of OHM is or was located on an upgradient location. The regulations also require “investigative and assessment actions of sufficient scope and level of effort” to support the conclusion that the source of OHM is upgradient.

The LPC reviewed nine NOAFs related to DPS Submittals. In one, issued by the Central Regional Office, MassDEP stated that the DPS Submittal did not provide adequate information on or sufficiently evaluate potential on-site sources of OHM. MassDEP specifically noted that the property had been the location of an auto body shop for 60 years and that typical solvents, cleaners, and degreasers used in that industry contain chlorinated volatile organic compounds; however, the DPS did not provide chemical-specific information for materials used and stored on site. According to the NOAF, the DPS Submittal also failed to provide information regarding floor drains, tanks, oil/water separators, or other containment systems, which MassDEP noted should have been obtained from records of local officials. 

In another NOAF, issued by the Southeast Regional Office, MassDEP rejected a DPS Submittal from a janitorial supply company in part because although the DPS report stated that “the warehouse space consists of storage racks full of various types of janitorial supplies,” the types and quantities of janitorial supplies were not specified and safety data sheet forms were not provided. MassDEP also expressed concern that the site was serviced by a private septic system and there was an unknown quantity of janitorial supplies on site.

A common issue cited in NOAFs on DPS Submittals is that they fail to adequately demonstrate that there is no on-site source of OHM. It is clear from the NOAFs that MassDEP expects DPS proponents to examine both current and past uses of the subject property when evaluating whether the site contamination may have originated from an on-site source. The DPS proponent should actively search for and examine available historical records concerning the site, particularly with respect to the potential for storage of OHM. The above-referenced NOAFs suggest that MassDEP may look more closely at this aspect of a DPS Submittal (and therefore LSPs should, too) when the current or past use of the property suggests it may have involved the storage of OHM.

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Review of 2017 NOAFs Involving Nature and Extent, LNAPL, NONs to LSPs, and Historic Fill  

By Wesley Stimpson, LSP, Loss Prevention Committee and LSPA Past President  

This article describes the results of the Loss Prevention Committee’s review of MassDEP’s fiscal year 2017 (July 2016-June 2017) Notice of Audit Findings (NOAFs) and Notices of Noncompliance (NONs) in these four categories:   

  • Nature and Extent (N&E) of oil and/or hazardous material (OHM),
  • Light Nonaqueous Phase Liquid (LNAPL),
  • NONs to LSPs, and
  • Historic Fill.

A total of 16 enforcement notices were reviewed.

Nature and Extent

Of six NOAFs addressing N&E, two involved highway spills. The Massachusetts Department of Environmental Protection (MassDEP) indicated that additional soil samples were required at both sites to delineate the extent of the spill impact and to determine the limit of the disposal sites. At one of the sites, Remediation Waste, in the form of an oil absorbent boom, was still present after the Permanent Solution had been filed.

Two of the NOAFs indicated that the parties undertaking response actions did not provide all necessary data to define the limits of the disposal site. In one case, an Administrative Consent Order with Penalty had specified an area to be evaluated for possible inclusion within the disposal site boundaries and the evaluation of that area was not included in the Permanent Solution. In the other case, a Downgradient Property Status (DPS) filing had implicated the subject property, but the disposal site boundary delineation in the Temporary Solution Statement for the subject property did not address all available data, inclusive of data from the DPS filing. 

For the fifth site, the LSP stated that MassDEP Policy No. WSC-02-411 (EPH/VPH Policy was followed for the assessment of a release of fuel oil at a disposal site in a GW-1 area with nearby occupied structures. However, the Department noted that the referenced guidance recommends sampling for VPH if soil headspace exceeds 100 ppm. This value was exceeded but VPH data weren’t collected. In addition, the extent of contamination in groundwater was not determined for those contaminants evaluated, a Release Abatement Measure (RAM) Status Report was not submitted, and Remediation Waste remained on the property unsecured for more than 120 days.

For the last site, a nineteen-page NOAF was issued following an audit of a revised Phase II submittal. The property is the location of a former Manufactured Gas Plant (MGP). The prominent message in the NOAF was MassDEP’s disagreement with the approach taken by the Potentially Responsible Party (PRP) concerning the characterization and assessment of risk posed by the MGP waste materials. The LSP took the position that the waste materials [including coal tar/Nonaqueous Phase Liquid (NAPL) mixtures] should be excluded from the risk assessment process because the waste materials are not environmental media (e.g., soil or groundwater). The LSP’s position was that the contaminant concentrations associated with the waste deposits would be captured via the analysis of soil samples collected adjacent to waste (e.g., tar-stained or tar-saturated soil next to a layer/pocket of coal tar/NAPL).

MassDEP expressly disagreed with the LSP’s approach for assessing risks in this manner for the following reasons:

  1. Contaminant concentrations in waste deposits would likely be greater than concentrations in the adjacent soil;
  2. Compositing potentially impacted soil adjacent to waste deposits with cleaner soil located above or beneath the distinct layer/pocket of waste would further dilute and under-represent contaminant concentrations in the waste deposit; and
  3. Coal tar/NAPL and other wastes are present in both accessible (0—3 feet depth) and potentially accessible (3—15 feet depth) soils throughout the disposal site.
MassDEP went on to point out that it had addressed the issue of whether waste materials should be considered environmental media for assessing risk as far back as a 1994 MCP Q&A which states, “If the waste materials contain oil or hazardous materials, the risks posed by these deposits must be evaluated using a Method 3 Risk Assessment process.”  The LSP undertook a Method 3 Risk Characterization, but excluded the waste materials containing OHM.


Eight NONs/NOAFs were included in this group. None of these reviews included submittals meant to comply with the regulations concerning NAPL mobility assessments promulgated in the 2014 MCP changes. Four of the reviews found no additional work was required. Three of the reviews identified missed filings including Immediate Response Action Plans, Remedial Monitoring Reports, and various status reports or non-technical administrative violations or both.

The one more substantial review addressed the modification of LNAPL thickness in wells prior to comparing the thickness to the former 0.5-inch Upper Concentration Limit criterion. Although this 0.5-inch UCL no longer applies, the NOAF pointed out that MassDEP does not agree with the use of the modified Zilliox and Muntzer equation to modify the measured thickness. The NOAF cited MassDEP’s VPH/EPH guidance document (Policy No WSC-O2—411), Section 4.7.2, which states that empirical methods involving relationships based upon the density of the liquid hydrocarbon (i.e., the  modified Zilliox and Muntzer equation) are insufficiently reliable for estimating NAPL thickness in the surrounding formation. 

NONs to LSPs

One NON was issued directly to an LSP in addition to the PRP. This has been a relatively infrequent occurrence;  the committee knows of only two other NONs issued directly to an LSP in the last ten years. This NON cited the LSP for filing a RAM Plan to excavate oil-contaminated soil after the date the work was undertaken. It also cited the LSP for signing the related transmittal form, which states that all work followed the provisions of the MCP, knowing that the site wasn’t in compliance.

Historic Fill

Only one NOAF was found that addressed Historic Fill. The audit of this filing points out that because the Permanent Solution concluded that a condition of No Significant Risk existed based on the presence of Anthropogenic Fill, the Permanent Solution should have been filed as a Permanent Solution with Conditions instead of just a Permanent Solution. The Department also noted that a figure was necessary to show the limits of the Anthropogenic Fill on the site.

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By Lisa Alexander, BWSC Audits & Enforcement Coordinator, MassDEP

(The LSP Association does not edit any articles submitted on behalf of any government agency or the LSP Board, other than for formatting purposes.) 

Building, building everywhere

Lately, it seems there’s construction happening everywhere: large multi-unit residential developments, often with retail shops on the ground floor. It’s a trend many cities now embrace for “Sustainability.” The idea is to limit sprawl and traffic congestion by moving people closer to places where they work, shop and play. These projects feature elements of urban and suburban living: dense housing units interspersed with green spaces, close to schools, restaurants, offices, recreation, shopping and public transportation, ideally, all within walking or biking distance along safe, well-lit, tree-lined streets. These projects aim to increase both housing stock and commercial tax revenues while maintaining the desirable aspects of a city’s character and lowering energy demands by reducing the city’s “carbon footprint.” In some places, including New York City, the trend also incorporates “mini” and “micro” apartments, some as small as 90 square feet (with shared kitchens)[i]. Boston, MA, has joined the trend with similar plans, supported by Mayor Walsh, in part to reduce single occupant car transportation. The Boston plan can be found at: https://www.boston.gov/transportation/go-boston-2030.) The U.S. Environmental Protection Agency also discusses similar strategies in rural areas. Their document, titled “Smart Growth,” talks about the economic revitalization of small towns by locating health centers in the centers of such towns.  For more information, see https://www.epa.gov/smartgrowth/healthy-places-healthy-people

Developers working on these plans tout shorter commuting times, increased physical and social activity, equitable access to services by all citizens and a greater sense of connection and community as benefits. By developing old factories or mills along rivers or other waterways, adding pocket parks or other green spaces (including urban farms or communal gardens), designers can give urban residents the benefits of being close to nature while reducing pressure to develop agricultural and wild lands.  

Even for those who don’t consider themselves “city people,” this mixed use development has appeal for many singles, childless couples and seniors alike who may prefer pared-down living spaces with less to maintain in areas close to resources, water, parks and public transportation. As demand grows for this mixed-zoned housing, industrial properties and old mills previously rejected for residential development are getting new consideration. These Brownfield[ii] properties become more valuable as technology changes and remedial options increase. Some recent MassDEP/BWSC guidance[iii] documents can help with these issues.

For example, our newest guidance from 2016, to help address vapor intrusion issues, can be found at: http://www.mass.gov/eea/docs/dep/cleanup/vapor-intrusion-guidance-10-14-2016.pdf This is a long (190 page), detailed document, that “provides a technical framework, recommended and preferred by MassDEP, which is intended to be protective of [human] health” while promoting a “technically defensible” and “consistent approach to addressing vapor intrusion into indoor air.” Remember, while guidance is not enforceable, words like, “shall, must and/or require” are indications that the guidance is referring to a “regulatory and/or statutory requirement.”

Another useful guidance document, also from 2016, is our recent guidance on Light Non-Aqueous Phase Liquids (LNAPL) at: http://www.mass.gov/eea/docs/dep/cleanup/lnaplfnl2-2016.pdf. As most Licensed Site Professionals (LSPs) know, leaking underground fuel oil storage tanks are probably one of the most common sources of soil and groundwater contamination requiring notification and cleanup. And, another older, still relevant and useful policy document, “Construction of Buildings in Contaminated Areas,” from January 2000, is: http://www.mass.gov/eea/docs/dep/cleanup/laws/00-425.pdf.

Events from Recent Years Reflect These Developments

Regional BWSC staff visited a location west of Boston to inspect on-going and completed construction activities and a Release Abatement Measure at a site undergoing redevelopment into a school and day-care facility. MassDEP personnel explained the need to provide formal notification of conditions of Substantial Release Migration and Critical Exposure Pathway. Once occupied, MassDEP will return to the location to conduct follow-up inspections at the day-care facility and will continue to coordinate with the LSP to ensure any issues are addressed.

Regional BWSC staff performed a site inspection at a Brownfields site undergoing remediation and redevelopment. The LSP was using an in-situ soil treatment utilizing a potassium permanganate solution in soil contaminated with chlorinated VOCs. The treatment involved using an excavator and specialized blending equipment and was intended to reduce concentrations of listed chlorinated solvents to below MCP Method 1 S-1 soil standards in order to obtain a “Contained-In Determination” from MassDEP. The “Contained-In Determination” enables transportation and disposal of the soils as a non-hazardous waste. Due to the presence of chlorinated VOCs in soil, including trichloroethylene (TCE), real-time air monitoring was occurring near the soil treatment area.  Air monitoring was set up within an on-site office trailer and was being conducted a minimum of three times a day.  The former commercial spaces at this location included a dry cleaner and laundromat and various retail shops; the future use will include 115 residential apartments, 50 municipal parking spaces and street level retail.

Regional Brownfields staff met with representatives of a real estate LLC (“the LLC”) and their LSPs regarding a proposed mixed-use redevelopment project at a former industrial site. The site is known to be contaminated with chlorinated volatile organic compounds (CVOCs) but has attained a Permanent Solution at one portion of the property and a Temporary Solution for an off-property downgradient portion of the site where the CVOC groundwater plume still exists. The Temporary Solution is in place because the off-property portion of the site is in an area that is currently categorized as a potential drinking water resource (“GW-1” under the Massachusetts Contingency Plan). The purpose of the meeting was to discuss: (1) technical aspects of the planned redevelopment, (2) various means to prevent potential vapor intrusion into newly constructed buildings and (3) the potential to reclassify groundwater at the downgradient off-property portion of the site as a non-potential drinking water resource. The real estate LLC was also seeking information regarding Brownfields grants for redevelopment.

MassDEP BWSC staff met with a developer and LSP at a former tannery site now being developed into residential apartments and town houses.  The goal of the site visit was to ensure that the nature and extent of contamination had been fully evaluated prior to site preparation activities, and that going forward, the development will be constructed in compliance with the Massachusetts Contingency Plan. 

[iii] Guidance is not Policy: Remember, “It does not create any substantive or procedural rights, and is not enforceable by any party in any administrative proceeding with the Commonwealth. This document provides guidance on approaches MassDEP considers acceptable for meeting the general requirements set forth in the MCP. Parties using this guidance should be aware that other acceptable alternatives may be available for achieving compliance with general regulatory requirements.”