EXHIBIT 10.4
NOTICE OF NONCOMPLIANCE
NOTICE OF AUDIT FINDINGS
Dear Mr. Borgwing:
During May, 1995, the Massachusetts Department of Environmental Protection
(the Department) conducted an audit of certain activities related to the above
referenced disposal site pursuant to the Massachusetts Contingency Plan (MCP),
310 CMR 40.1100. That audit is now complete.
The purpose of this Notice is to inform you that, as a result of the
audit, Department personnel have determined that you are in noncompliance with
one or more laws, regulations, orders, licenses, permits, or approvals
enforced
by the Department, The specific aspects of the noncompliance and the measures
the Department wants you to take to come into compliance are described in this
Notice of Noncompliance.
The audit included a windshield survey conducted on May 8, 1995, a review
of the documents listed below, and a review of other information in the
Department's files:
1) LSP Evaluation opinion report, prepared for WASA Management by
Environmental Science Services (ESS), and dated June 17, 1994; and
2) "Phase I - Limited Subsurface Investigation of 580 Winter Street,
Waltham, Massachusetts", prepared for Prudential Realty Group by Certified
Engineering & Testing Company and dated May 9, 1989.
SITE SUMMARY
On August 14, 1987, a 10,000 gallon petroleum underground storage tank
(UST) was removed from the subsurface at 580 Winter Street, Waltham,
Massachusetts. Soil contaminated with number 4 fuel oil was discovered in
this
tank excavation. The Department was notified of this release on August l7,
1987.
An Environmental Site Investigation for the property was completed by
Goldberg-Zoino & Associates, Inc. (GZA), in January 1989. Six soil borings
were
drilled and four groundwater monitoring wells were installed. Fuel oil and
chlorinated volatile organic chemicals (VOCs) were detected in soil and
groundwater samples from the site. VOCs were not detected in soil at the site
at levels exceeding the MCP RCS-l Reportable Concentrations. Trichloroethene
was measured in a groundwater sample from well GZA-2 at a concentration of 21
ug/l, which exceeds the RCGW-1 concentration of 5 ug/l.
A Phase I-Limited Site Investigation was conducted by Certified
Engineering & Testing Company during the spring of 1989, On March 16 and 20,
1989, borings were drilled at the property, Split spoon screening was
conducted
at five foot intervals in these borings, Two groundwater monitoring wells were
installed. Three shallow soil samples were also
collected at this tine. These shallow soil samples were collected with a
shovel from a depth of two feet. fuel oil and chlorinated VOCs were again
detected in soil and groundwater samples from the site. VOCs were not
detected
in soil at levels exceeding the MCP RCS-l Reportable Concentrations,
Trichloroethene was measured in a groundwater sample from well GZA-2 at a
concentration of 9.6 ug/l, which exceeds the RCGW-1 concentration of 5 ug/l.
Total Petroleum Hydrocarbon (TPH) was measured in a groundwater sample from
well
MW-103 at a concentration of 6 MG/1, which exceeds the RCGW-1 concentration of
l
mg/l.
A Preliminary Environmental Assessment was conducted by Environmental
science services (ESS). ESS collected groundwater samples from existing
monitoring wells in November 1992 and December 1993. Trichloroethene wag
measured in a groundwater sample from well GZA-3A at a concentration of 7 ug/1
in November 1992 (RCGW-1 = 5 ug/1). Trichloroethene was not detected in a
water
sample collected from this well in December 1993 (detection limit 5 ug/1).
LSP EVALUATION OPINION
The LSP Evaluation Opinion states that, "the subject site presents no
significant risk to its occupants, the surrounding properties, or the City of
Cambridge water supply. Since no contaminants listed in the MCP were
currently detected, and previously collected groundwater samples were below the
applicable RCGW-2 standards, it is the opinion of the undersigned that the
location is not a disposal site where a release of oil and/or hazardous
materials has occurred which is subject to the notification requirements of
310 CMR 40.0300, and that no further response actions are required."
SITE VISIT
On May 8, 1995, a representative of the Department completed a windshield
survey of the subject site. The location of the property with respect to the
Cambridge Reservoir was noted. Winter Street, and a narrow wooded area
bordering the street, lie between the site and the Reservoir. The site is
located on a hill overlooking Winter Street. Surface topography slopes
strongly
toward winter Street in this area, Surface water runoff is collected by storm
drains which empty into a retention pond in the Winter Street median strip. A
small stream, which flows in a southerly direction, away from the Cambridge
Reservoir, is located east of the site, opposite a Guest Quarters suite Hotel.
No sheens were observed on either the retention pond or the stream.
NOTICE OF NONCOMPLIANCE
The following is a description of (1) each activity identified during the
audit which is in noncompliance, (2) the requirements violated, (3) the action
the Department now wants you to take, and (4) the deadline for taking such
action, An administrative penalty may be assessed for every day from now on
that
you are in noncompliance.
Notwithstanding this Notice of Noncompliance, the Department reserves the
right to exercise the full extent of its legal authority in order to obtain
full
compliance with all applicable requirements, including, but not limited to,
criminal prosecution, civil action including court-imposed civil penalties, or
administrative penalties assessed by the Department.
ENTITY IN NONCOMPLIANCE
WASA Management
30 Federal Street
Boston, MA 02110
DEP RTN #3-2117
LOCATION WHERE NONCOMPLIANCE OCCURRED OR WAS OBSERVED
Waltham, 580 Winter Street
DATE(S) WHEN NONCOMPLIANCE OCCURRED OR WAS OBSERVED
June 22, 1994, the date the Department received a Licensed Site
Professional Evaluation Opinion/Report dated June 17, 1994 .
DESCRIPTION OF ACTIVITY OF NONCOMPLIANCE
The LSP Evaluation opinion did not identify the applicable groundwater
category for the site,
DESCRIPTION OF REQUIREMENT(S) NOT COMPLIED WITH
The LSP Evaluation Opinion compared contaminant concentrations in
groundwater at the site to the MCP RCGW-2 Reportable Concentrations. However,
based on a measurement made from the Maynard, Massachusetts, USGS Quadrangle
(scale = 1:25,000), the site is located approximately 325 feet from the shore
of the Cambridge Reservoir, a Class A surface water body used as a public
drinking water supply. Pursuant to section 40.0362(l)(a)(4) of the MCP, the
reporting category for groundwater at the site is RCGW-1 because the site is
located within the Zone A of the Cambridge Reservoir,
Groundwater monitoring well MW-103 contained TPH at a concentration of 6
mg/l when last sampled in March 1989. This level exceeds the MCP RCGW-1 TPH
Reportable Concentration of 1.0 mg/l. Groundwater monitoring well MW-101
contained trichloroethene at a concentration of 55 ug/1 when last sampled in
March 1989. This level exceeds the MCP RCGW-1 trichloroethene Reportable
Concentration of 5.0 ug/l.
Based on the RCGW-1 groundwater category and levels of trichloroethene and
fuel oil in groundwater, the site is subject to the notification requirements
pursuant to 310 CMR 40.0300.
DESCRIPTION OF DEADLINE(S) OF ACTION TO BE TAKEN
Submit to the Department, within 60 days of the date of this Notice, in
accordance with 310 CMR 40.0610(5), a revised LSP Evaluation opinion which
indicates in Section B. that a release subject to the notification
requirements of 310 CMR 40,0300 occurred or may have occurred at the subject
site and that further response actions are necessary. This LSP Evaluation
Opinion must be accompanied by either a Tier Classification Submittal
Transmittal Form (BWSC-107) completed in accordance with 310 CMR 40,0500 with a
Tier I Permit Application if necessary, or a Response Action Outcome
Statement (BWSC-104) completed in accordance with 310 CMR 40,1000.
The revised LSP Evaluation opinion must also be accompanied by a letter
requesting that the Department rescind the original LSP Evaluation Opinion
dated June 17, 1994 (received by the Department on June 22, 1994) and replace it
it with the revised LSP Evaluation opinion.
If the requested documents are not received by the Department within 60
days of the date of this Notice, pursuant to 310 CMR 40.0610(6), the site will
default to a Tier 1B Classification and Tier 1B Annual Compliance Fees will be
assessed.
A copy of this Notice has been sent to your LSP. You may consult with
your LSP when preparing a response to this Notice, Note, however, that you,
not your LSP, are obligated to respond to this Notice and remedy the
violation.
Note that any submittal to the Department made in response to this Notice must
include the certification statement specified in 310 CMR 40,0009, signed by an
authorized individual.
CONCLUSION
You are advised to respond to the Notice of Noncompliance within the
timeframes outlined above to avoid additional enforcement action by the
Department.
This audit focused primarily on compliance 'with certain requirements of
M.G.L. c. 21E and the MCP and, to a limited extent, other applicable
requirements.
This audit does not preclude future audits of past, current, or future
response actions or activities at the site or inspections to confirm
compliance
with applicable requirements of other laws or regulations enforced by the
Department.
If you have any questions regarding this notice or any of the requirements
contained in it, please contact Jack Miano at the letterhead address or
telephone (617) 932-7600,
Very truly yours,
/s/
Jack Miano
Environmental Engineer
/s/
Richard J. Chalpin
Regional Engineer
Bureau of Waste Site Cleanup
cc: DEP/Woburn, Data Entry/Files
DEP/Woburn/BWSC, John Fitzgerald DEP/Woburn/BWSC, Patricia Donahue
DEP/BWSC/Boston/5th fl, c/o Steve Winslow City of Waltham, 610 Main
Street, Waltham, MA 02154,
Attn: Health Agent
City of Waltham, 610 Main Street, Waltham, MA 02154,
Attn: Board of Selectmen
Environmental Science Services, 450 Lexington Street,
Newton, MA 02166, Attn: Duncan Wood