Soil Management: The Crisis is Real

The LSPA's November 2013 membership meeting program was entitled "The Crisis of Soil Management for Development Projects in Massachusetts." The meeting was attended by well over 200 people - attesting to the fact that soil management is, in fact, a serious concern for the LSP community.

On this same topic, the state legislature took a strong stance in its recent end-of-the-session actions, and the town of Dartmouth, took a dramatic and problematic step recently with respect to soil transport and management. These are summarized below.

State Legislative Action: The Massachusetts legislature was able to generate the required minimum of 2/3 of the legislators' votes in both the House and Senate to pass into law an item that was not included in the Governor's budget. Section 277 of the FY 15 budget reads:

"Not later than June 30, 2015, the department of environmental protection shall establish regulations, guidelines, standards or procedures for determining the suitability of soil used as fill material for the reclamation of quarries, sand pits and gravel pits. The regulations, standards or procedures shall ensure the reuse of soil poses no significant risk of harm to health, safety, public welfare or the environment considering the transport, filling operations and the foreseeable future use of the filled land. The department may adopt, amend or repeal regulations establishing: (i) classes or categories of fill or reclamation activities requiring prior issuance of a permit issued by the department; (ii) classes or categories of fill or reclamation activities that may be carried out without prior issuance of a permit issued by the department; and (iii) classes or categories of fill that shall require local approval based on the size, scope and location of a project; provided, however, that local approval shall not be required for projects involving less than 100,000 cubic yards of soil."

The LSPA's Legislative Outreach Subcommittee Co-Chairs, and the LSPA's President and Executive Director, are meeting with legislators in the fall to further discuss this and other soil-management related issues. The LSPA will provide information on the practice, roles, responsibilities, and expertise of LSPs in the area of soil management.  

The LSPA also expects to work closely with MassDEP and participate as a stakeholder at every opportunity as the state develops these guidelines and regulations.  

Board of Health Regulation, Town of Dartmouth, MA:

This regulation is obviously of great concern to the LSPA. This prohibition certainly has serious implications for any MCP work being conducted in Dartmouth. In fact, some property owners have already received "cease and desist" orders from the town regarding their MCP cleanups.

While limited to the town of Dartmouth at this point, if similar actions were to be taken by other municipalities this could bring other MCP cleanups to a halt - with all the possible public health risks and environmental impacts that could go along with that. The ripple effect would be devastating.  Property owners with MCP sites already in the system could be stuck with unmarketable properties, and actually run the risk of not even being able to continue current uses without great cost, if at all.  Serious economic development and environmental protection impacts would ensue statewide.

The LSPA is monitoring the situation from the regulatory as well as legal perspective. We will take appropriate action as we determine what can be most effective. At this point, we understand that MassDEP and the Attorney General's Office are attempting to better understand the situation and consider what actions, if any, they intend to take.

If these issues are of interest to you and you wish to become involved with the LSPA's Legislative Outreach Subcommittee (of the Regulations Committee), please contact the Subcommittee Co-Chairs:

Dot McGlincy, LSP, Cumberland Gulf Companies, at DMcGlincy@cumberlandgulf.com

Jim Curtis, LSP, Cooperstown Environmental, at jim@cooperstownenv.com

Or the LSPA Executive Director, Wendy Rundle, at wenrun@gmail.com.

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The LSPA encourages our members to develop and submit proposals for WES Grant funds by October 31, 2014.  This is a great opportunity to get your research idea funded and contribute to the waste site cleanup practice.

Grants of up to $5,000 may be awarded annually.  The Review Committee is prepared to consider applications and announce its decisions by January 5, 2015.

The Wesley E. Stimpson (WES) Professional Practice Grant was created to commemorate the exemplary leadership, dedication and service of Wesley E. Stimpson, PE, LSP, to the professional practice of hazardous waste site cleanup and to the LSP Association.  The grant is to be used for the advancement of the professional practice of Licensed Site Professionals (LSPs). In presenting his thoughts regarding the appropriate use of the Grant funds, Wes noted in a letter to the LSPA Board:  

LSPs must not only have strong technical abilities, they must also practice collaboration, proper professional etiquette, and ethical and moral behavior.    I believe that one of the more important traits for an LSP is a willingness to share his/her overall knowledge of the practice with developing LSPs and other environmental professionals.   As demonstrated by the founding LSPs, a skilled LSP will work toward continuous improvement in the practice and see the long-term benefit of sharing knowledge with and mentoring newer professionals.

The Review Committee will accept applications until October 31, 2014 and will announce results by January 5, 2015.

A three-person WES Grant Review Committee, appointed by the LSPA Board, is:

• Cosmo Gallinaro, LSP, Commonsense Environmental, Inc.  (Board member)
• J. Andrew Irwin, PE, LSP, President of IRWIN Engineers, Inc.  (Past President)
• Wesley E. Stimpson, PE, LSP, former LSPA Executive Director and formerly of Haley & Aldrich, Inc.  (At-large member)

To be considered for this award, applicants must meet the following criteria:

• The applicant is a member of the LSP Association.
• The funded effort will produce a tangible product, such as a technical paper, an event, a research tool, a presentation at an LSPA event or another appropriate product as determined by the Review Committee.
• The product will advance the state of the practice of rendering LSP Opinions or the professionalism of LSPs participating in the MCP program, or will educate the public and participating parties as to the contributions made by practicing LSPs.
• The level of effort involved in the project, as well as the product itself, should go beyond the levels already achieved routinely through the efforts of the LSPA's dedicated volunteers.
• The product will be produced in less than six months.
• The applicant will contribute time, services or materials of at least a similar value to the award amount requested.
• At a minimum, the product or project results will be documented and made readily available in written form, such as publication in the LSPA Technical Journal, LSPA News, LSPA website, or a public forum.
• All applicants are expected to include specific measurable project goals and timelines in their proposals. Grant awards are subject to a Memorandum of Understanding between the LSPA and the Grantee that documents the grant use, goals and conditions. 

The LSPA is pleased to be able to offer this exciting opportunity to contribute to advancing the practice, and we encourage interested members to apply for a grant. Click here for more details regarding the application process.    

Please contact Wendy Rundle, Executive Director, at wenrun@gmail.com or 617-484-4027 with any questions.

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Top Takeaways from July 31, 2014 BWSC AUL Guidance Review Meeting

By: Matt Young, Senior Project Manager, Cumberland Gulf Group of Companies and Dave Leone, LSP, GZA GeoEnvironmental, Inc.  

LSPA Regulations Committee Co-Chairs

In 2000, a group of concerned environmental consultants, attorneys and other professionals came together to study the growing problem of uninsured home heating oil releases due to the increasing prevalence of pollution exclusions in homeowners policies. After the insurance industry flatly rejected mandatory insurance coverage for oil releases, a compromise was reached. In 2009, legislation was enacted requiring homeowner insurance companies doing business in Massachusetts to "make available" insurance coverage for home heating oil releases from above-ground storage tanks with certified release prevention upgrades.

The legislation, which finally took effect in 2010, was intended to accomplish two key goals:

1)     Prevent many oil releases by encouraging homeowners to make fairly inexpensive upgrades to older, previously grandfathered home heating oil systems by installing either an oil safety valve or a protective sleeve on oil supply lines (click here to view); and

2)     Provide homeowners with the opportunity to purchase affordable insurance riders to cover response costs, property damage, and third party liability for heating oil releases.

The legislation has had the intended positive effects, at least for some homeowners. Upgrades have been made on some systems, which presumably have reduced the number of releases. Some fuel oil riders have been purchased, and at least one insurer has added home heating oil release coverage to its policies without a rider and at no extra cost.

The unfortunate reality, however, is that four years after the legislation took effect, homeowners' LSPs and lawyers are still encountering far too many uninsured home heating oil AST releases. LSPs who regularly work in the residential market report that the number of covered losses for fuel oil releases may have actually decreased since the legislation. Lawyers for homeowners are finding that the insurance industry continues to add pollution exclusions to both first and third party policies, which preclude all coverage for oil releases absent a liquid fuel oil endorsement.

The lack of insurance coverage comes as a nasty surprise to impacted homeowners. When they cannot fund the cleanup of fuel oil releases on their property, the occupants' health and safety can be at risk. The property value can be significantly diminished, and a homeowner's ability to mortgage or sell can be seriously compromised.

The source of the problem? Information has not been widely disseminated among the general public that "liquid fuel oil" riders are available for a small surcharge, and insurers and their agents have no legal obligation to inform homeowners about these riders. Additionally, most homeowners are unaware of the potential risks of oil releases, their costly consequences, and how simple upgrades to their systems, now required under the 2009 legislation, can prevent many releases from ever happening.

It may be time to evaluate whether further action should be taken to assist homeowners. We are encouraging the LSPA's Legislative Outreach Subcommittee to consider studying the uninsured home heating oil issue and make recommendations. There are many possible actions, but here are few ideas that could be considered:

• Propose a relatively minor legislative change requiring homeowner insurers in Massachusetts to notify their insureds of the availability of liquid fuel riders for all homeowners whose oil ASTs have been upgraded and certified.
• Propose mandatory home heating oil coverage for certified tanks, with an opt-out election by homeowners who choose not to pay the liquid fuel rider surcharge or to have their systems upgraded and certified.
• Engage in a public education and outreach campaign.
• Establish a 21J-like fund for home heating oil cleanups.

If you would be interested in working with the LSPA's Legislative Outreach Subcommittee on this issue, please contact Subcommittee Co-Chairs:

Dot McGlincy, LSP, Cumberland Gulf Companies, DMcGlincy@cumberlandgulf.com

Jim Curtis, LSP, Cooperstown Environmental, im@cooperstownenv.com

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Highlights from FY '13 Notice of Audit Findings - Nature and Extent of Contamination

By: James Zigmont, LSP, CDM Smith, and Loss Prevention Committee

As part of the Loss Prevention Committee's (LPC) topic-based continuing series of reviews of 2013 Notices of Audit Findings (NOAFs), this article presents highlights from NOAFs that address issues involving the nature and extent of contamination. The observations below are intended as practice tips for the LSP community. Given that the LPC will present a subsequent article devoted to vapor intrusion-related NOAFs, this article does not describe vapor intrusion issues, although these are a leading component of identified noncompliance within nature and extent-related NOAFs.

GENERAL ISSUES OF SITE CHARACTERIZATION

Provided below are some examples of the nature and extent issues cited by MassDEP in NOAFs, such as sampling parameters, assessment of historical usage, and lateral and vertical contaminant delineation.

• Dioxins were not assessed in the tailrace of a former paper mill that drained a settling basin where dioxins had been detected;
• An industrial use building interior was not assessed for potential sources of oil or hazardous material (OHM), such as drains, drywells, and the potential use and storage of OHM;
• Cyanide was excluded from a site's sampling and analysis program although cyanide had been identified as part of the historical waste stream;
• A paint shop floor drain identified in an industrial building was not investigated as a potential source of contamination;
• The extent of impacts relating to metals, principally lead, detected in soil at a municipal park were not characterized;
• The extent of filling was not delineated within a portion of a property reportedly developed over a landfill;
• Impacts to an intermittent stream were not adequately characterized where metals in groundwater at the adjoining property were detected in excess of GW-3 criteria;
• Oil-stained soil located outside of an area of soil excavation performed as a Release Abatement Measure was not characterized during response actions or addressed in the Response Action Outcome statement; and
• An LNAPL-impacted well was destroyed and not replaced, nor were other wells installed farther downgradient from the well in question.

GROUNDWATER CLASSIFICATION

MassDEP identified several instances of noncompliance relating to the assignment of groundwater classifications:

• An RAO stated that GW-1 criteria did not apply based on the criteria in 310 CMR 40.0926(8)(c); however, MassDEP disagreed with this opinion based on increasing groundwater contaminant levels within a Zone II area;
• An RAO's groundwater categories did not address private wells located within 500 feet of the site despite their description in an earlier Phase II Report;
• An RAO did not assign a GW-1 category to site groundwater despite the site's partial inclusion within a Zone II area; and
• An RAO concluded that a disposal site's groundwater was not category GW-1 solely on the basis of the decommissioning of a private drinking water well, although the area was also classified as a Medium Yield Potentially Productive Aquifer.

DISPOSAL SITE BOUNDARIES

MassDEP identified lack of or inadequate definition of disposal site boundaries in the following cases:

• An RAO did not present disposal site boundaries despite characterizing groundwater impacts as extending onto adjacent property; and
• MassDEP determined that groundwater flow directions within the overburden and bedrock aquifers were not adequately characterized to support the RAO's disposal site boundary. MassDEP stated that based on the presented data, GW-2 exceedances from PCE impacts in potential downgradient areas could not be ruled out.

CLEAR AND CONSISTENT DESCRIPTION OF SITE AND RESPONSE ACTIONS

In some cases, MassDEP determined that RAOs did not present clear and consistent depictions of site conditions and response actions, and therefore did not provide a convincing rationale for closure. In one example, MassDEP concluded that the RAO did not present:

• a consistent depiction of disposal site boundaries;
• information on NAPL occurrence and related response actions despite earlier references to these;
• construction details of three monitoring wells;
• critical confirmatory soil data (tables and lab sheets) from the area of highest petroleum impacts;
• groundwater flow direction; and
• an explanation of the relevance of identified below-ground utilities in proximity to a removed underground storage tank.

In another example, MassDEP determined that an RAO's disposal site boundaries had been reduced from a larger property that included a GW-1 Medium Yield Potentially Productive Aquifer as shown in the Phase II Report, to a more limited GW-2/GW-3 area defined by the extent of soil removal performed during a RAM. The RAO provided no explanation for the reduced boundaries.

EVALUATION OF NON-POTABLE SUPPLY WELLS

As part of one NOAF, MassDEP cited four non-potable private wells located within 500 feet of a disposal site for which the RAO did not provide adequate justification to exclude them from within the disposal site boundaries. Although the NOAF allowed that non-consumptive use of the private wells did not by itself require a GW-1 classification, MassDEP stated that non-potable use requires a Method 3 Risk Characterization to evaluate exposures not addressed by the RAO's Method 1. The NOAF went on to state that the RAO did not provide an adequate description of the locations, depths, and construction details of these wells.

METHANOL PRESERVATION AND HISTORIC SAMPLES

An NOAF for a 2012 combined Phase II/Phase III Report found that characterization of the site source area relied on 1997 VOC soil results with no indication that the samples had been preserved with methanol, as currently required per Policy WSC#99-415. MassDEP concluded that use of data from unpreserved samples inadequately characterized soil impacts and was therefore noncompliant.

COMPLIANCE WITH TSCA

Notification had been provided to MassDEP of a potential imminent hazard for 2,800 mg/kg PCBs detected in surface soil. The soil was later removed during three separate excavations. MassDEP noted in the NOAF that EPA was not notified and response actions did not comply with TSCA regulations. This noncompliance with TSCA was identified by MassDEP a violation of the MCP.

SUBSEQUENT PROPERTY TRANSFER DUE DILIGENCE REPORT

In a situation experienced by many LSPs over the past few years, MassDEP issued an NOR as a result of a Level 3 Audit eight years following submittal of a Class A-2 RAO. The audit and subsequent NOR were prompted by a due diligence assessment report submitted by a third party to MassDEP. The report detected soil and groundwater impacts above the Method 1 criteria that had been used to support the RAO. The assessment also detected soil vapor constituents above MassDEP's threshold values for VOCs. MassDEP required retraction of the RAO and Tier Classification within one year.

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Jack Guswa, LSP, LSP Board Member

LSP Board member Jack Guswa has reached that time in his professional career when he has flexibility to pretty much pick and choose what he wants to do with his time. One of the things he chose was to serve on the LSP Board, where he has filled one of the LSP slots for seven years.

Guswa, who has been an LSP since 1993, has spent over four decades traveling around the world and cutting his teeth on some
 of the nation's major environmental challenges. After earning his doctorate in hydrogeology from Penn State and spending seven years with the USGS, Guswa entered the private sector, first with Arthur D. Little and later with GeoTrans, a "boutiquey" firm with 50 employees and a single focus - hydrogeology. When Guswa joined GeoTrans in 1985, he was charged with setting up the New England Office. At that time he was the only New England employee.

GeoTrans was acquired by Tetra Tech in the late 1980s. In 2004, after several more acquisitions increased the Tetra Tech company size to almost 10,000 employees, Guswa resigned his position as a Vice President of GeoTrans to form JG Environmental, Inc., where he is the chief cook and bottle-washer, and the only employee. Guswa says the decision to leave GeoTrans was a matter of personal preference. The Tetra Tech family of companies was too big for his liking, and Guswa found himself spending too much time on the phone or in meetings. "I'd rather pick and choose my own frustrations rather that have them imposed on me by someone else," he says.

Guswa's professional resume reads like a who's who of high profile environmental hot spots. There was the S-Area Landfill on the Niagara Frontier (which, along with the Hyde Park Landfill, 102nd Street Landfill and Love Canal were all former disposal sites of Hooker Chemical). He was heavily involved on behalf of the US EPA in litigation concerning the Ottati and Goss/Great Lakes Container Corporation Site in Kingston, New Hampshire, the first federal Superfund site to go to trial. There was his work as an expert witness for WR Grace at the Wells G & H Site in Woburn, Massachusetts, a case which received some notoriety in the book and the movie titled "A Civil Action." Guswa thinks that while the book and movie may have been interesting entertainment, neither was a good representation of the site and trial facts.  

In the 1980s, he worked for the US EPA on the United States' search for a suitable geologic repository for high-level nuclear waste. One of the criteria for the repository site was that it had to be geologically stable for 10,000 years; more than 30 years later, a repository has yet to be approved, Guswa said. He has also done hydrogeological consulting internationally, working on several groundwater contamination projects in Canada, a radioactive waste disposal site evaluation project in Spain, and a water resource project in Oman.  

Then there is one of his favorites, a DOE-funded Aquifer Thermal Energy Storage project in Minnesota he worked on in the early days of his career while still employed by the USGS. According to Guswa, this was one of three nationwide demonstration projects funded during the late 1970s energy crisis. The objective of the projects was to test the feasibility of injecting and storing heat in the ground to be extracted at a later time. In Guswa's project, the heat was derived from vented steam from an electric power plant and used to heat water that was injected in the ground to a depth of 600 feet. Several months later the heated groundwater was extracted, passed through a heat exchanger, and the extracted heat was used to heat a building on the University of Minnesota campus. However, when the energy crisis ended, so did Guswa's demonstration project.

Today, Guswa is cutting back on his workload and focusing on a limited number of clients, sticking with those with whom he has a long-term relationship and who have provided interesting projects for him to work on. But he also found himself wanting to give something back to the profession. "I am sort of at the end of my career now and have been gradually increasing the amount of volunteer professional work that I do," says Guswa. "I have been a long-term Associate Editor for the professional journal Groundwater and thought that, with my background, I might also be helpful to the LSP Board."

So, when approached in 2006, by then-LSP Board member Bob Luhrs and then-Board Chair and Board member Janine Commerford, and asked if he had any interest in serving on the LSP Board, it took him less than two weeks to say yes. It was, he said, a good decision. "I certainly have enjoyed my time," says Guswa, who just came up for air after being on the committee charged with drafting the LSP exam.  

After the first few years of his tenure, the Board became a bit unsettled, Guswa said, noting that it had experienced significant staff reductions and changes in leadership and membership. "It was difficult to feel as if you could keep your head above water," he said.  

Staffing levels have increased and the Board appears to have righted itself, says Guswa. It has moved on from its long-time focus on reducing the backlog of disciplinary cases to other things such as the exam rewrite, organizational transparency, and continuing education.

There still are formal complaints against LSPs that have to be addressed, but there are considerably fewer than in the Board's early days, a fact Guswa attributes to the privatized program's maturity and a better understanding among all stakeholders about the process. That said, disciplinary cases are still the most challenging part of Board functions. "To me, it is the most difficult thing the Board has to deal with," Guswa says. The process is time consuming, says Guswa, and it is a challenge to speed it up while maintaining fairness. "A case can take years," he says, but quickening the pace is easier said than done. The process - including the collection of documents and the appeals process -takes time. And any changes in the process would have to be made without compromising the thoroughness of the reviews and the fairness of the decisions.  

For Guswa, the biggest recent task was the rewrite of the exam based on the MCP revisions which went into effect this spring. The exam - which is expected to be administered in the fall of 2014, is soon to be reviewed by a psychometrician to ensure the validity of the questions. Guswa also expects there will be greater transparency in the criteria the Board uses to decide which applicants will be approved to take the LSP Exam. "There will be a little bit more documentation of the decision-making process," he says. "The tricky part of this is that there is always the opportunity to judge what the Board considers 'experience.' This could get very subjective so we decided that as a matter of fairness to all applicants we should have better documentation and have more of a written record of what our recommendation is based on."

The future of continuing education is also rising to the top of the Board's agenda. Guswa, for one, is interested in exploring on-line education and is working with the LSPA to explore what other states are doing. "It certainly makes sense to allow for on-line training," he says, envisioning a closer collaboration between the LSPA Education Committee and the LSP Board. "It's going to take a while but it's going to happen," he predicts. "We are working to develop a more comprehensive policy."

With respect to the relationship between the Board and MassDEP, Guswa believes it is important for the LSP community to understand and recognize that the Board is not an 'arm of the DEP.' Board members do not like that characterization, because we truly try to operate as an independent Board. The Board and DEP do need to cooperate on certain issues, but this is not to say we should get "cozy" with the DEP, and we do not, he said.  

Guswa believes that the recent initiatives to effect collaboration among the various states that have privatized hazardous waste site cleanup programs, such as Connecticut and New Jersey, could be good for the environmental profession as a whole. He thinks this collaboration represents an opportunity to learn from a larger database of experience for the overall benefit of the individual programs.

Regarding collaboration with the LSPA, Guswa thinks the Board initially felt it needed to be distant from the LSPA, but expects that going forward the LSPA and the Board will work together on some technical issues and on continuing education. It's important to have that input from people familiar with the standard of practice, he says, noting that the majority of Board members are not LSPs. Guswa sees the LSPA and the LSP Board working together with increased frequency in the future. While there will always be boundaries between the two, it is, he says, "a natural evolution."

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By: Thomas M. Potter, Clean Energy Development Coordinator, MassDEP Bureau of Waste Site Clean Up

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

As those of you following this column know, the Massachusetts Department of Environmental Protection's (MassDEP) Bureau of Waste Site Cleanup (BWSC) continues to encourage the application of energy efficient and renewable energy approaches to assessment and remediation of hazardous waste sites, as well as, the development of renewable energy technologies (e.g. solar PV) at such locations. The following updates on related clean energy topics are provided:

U.S. Environmental Protection Agency's RE-Powering America's Land Initiative

In April 2014, the U.S. Environmental Protection Agency's (EPA's) RE-Powering America's Land Initiative issued its Project Tracking Matrix report of completed renewable energy projects on contaminated lands, landfills and mine sites to date. The report identified 110 renewable energy projects in 31 states and territories with a cumulative installed capacity of just over 709 megawatts (MW). The report highlighted Massachusetts as a leader in siting renewable energy installations on contaminated lands with the most identified renewable energy projects. The report also highlights Massachusetts's successful Clean Energy Results program and provides a case study on the successful town of Scituate municipal landfill solar installation. A copy of the report can be found here: Project Tracking Matrix.

Greener Cleanups Guidance

Massachusetts Contaminated Sites Profile List

In June 2014, MassDEP updated its "contaminated sites profile list" with the addition of up to 300 sites for development of renewable electricity generation from wind or solar energy. The Spreadsheet includes information about property location, cleanup status, acreage, wind speed, distance to nearest electricity transmission lines and more. Additional updates to the list are anticipated this fall. The list is located at: List

Although many sites on this list may be considered "Brownfields" under the "Renewable Energy Portfolio Standard - Class I" regulations at 225 CMR 14.00 ("DOER Regulations") issued by the Massachusetts Department of Energy Resources ("DOER"), a site's inclusion on this list does not automatically qualify it as a "Brownfield" under such regulations. Similarly, other sites not included on this list may qualify as a "Brownfield" under the DOER Regulations. See the DOER Regulations and applicable DOER "Guideline Regarding the Definition of Brownfield" document for more information on which sites will be eligible for consideration as a "Brownfields" for solar development here: Guideline

Clean Energy Development Compliance Assistance

As a reminder, if you are currently involved in a renewable energy project on contaminated land or have been approached by a prospective project developer with such interest and need additional help or support or just want additional information on the CERP, please let me know. I would be happy to provide additional compliance assistance.

Thomas M. Potter

Clean Energy Development Coordinator  

Bureau of Waste Site Cleanup

MassDEP, One Winter Street, 6^th Fl, Boston, MA 02108 | 617-292-5626, Thomas.Potter@state.ma.us 

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