The Licensed Site Professional Association (LSPA) and the Massachusetts Department of Environmental Protection (MassDEP) recently presented a training session on a recent review of the 2019
LSP Response Actions audit findings in an effort to summarize “lessons learned” for the benefit of all. There are some take-aways of which you might want to be aware.
First, as background, the MassDEP performs both random and targeted audits of documentation associated with LSP response action submittals. These audits primarily concentrate on Activity and Use Limitations (AULs), a percentage of which the MassDEP is required to audit.
Additionally, MassDEP includes all of the various other submittals which an LSP or Responsible Party might submit. These include Risk Characterizations, Permanent Solution Statements, Downgradient Property Status (DPS) Opinions, and others.
· AULs – Most of the errors and deficiencies associated with AUL audits revolved around conveyance errors. The AUL must be conveyed with the deed upon transfer. AULs are to “run with the land.” If such a conveyance is not clear or not implemented, that is a large problem, and can be a target for enforcement. Related AUL problems, uncovered in the study, include inadequate documentation of inspections and incomplete delineations of the AUL boundaries.
· Incomplete Site Characterization – The age-old question of “how much data is enough.” The audits indicate that the MassDEP has concluded that in many situations there were inadequate data to support the conclusions made. For example, there may be not enough reliable information to support an understanding of the extent of contamination or to develop exposure point concentrations.
On this score, it would be easy to say that regulators always want more data and your data are never enough. That may be part of the issue. Yet another part is that LSPs could do a better job of explaining how they are using their data, what data were needed or useful, and perhaps why more data were not collected. If there is a logical basis to support the data collected, sufficient to support and then corroborate conclusions, you may say so. That may address MassDEP questions.
· Downgradient Property Status – Quite simply, MassDEP audited only a small number of DPSs but, in nearly all the cases, they found that there was not sufficient information to support the DPS opinion. MassDEP reminds us that your DPS must both establish where the upgradient contamination is coming from and demonstrate there is no source on the 21E site on whose behalf you are submitting the DPS. If you have not demonstrated both, the DPS is likely not complete.
We will be keeping an eye on these issues as we all incorporate these lessons in our services and any opinions we might be reaching, writing and submitting on behalf of our 21E clients.
Sam Butcher is a MA Licensed Site Professional at Loureiro Engineering Associates in Rockland, MA. He is a member of REBA’s Environmental Law Section. REBA membership is open to attorneys and other real estate and related professionals. Sam can be reached at firstname.lastname@example.org.