150 CANAL STREET NOTICE OF NON COMPLIANCE-DEPMaura T. Healy
Governor
Kimberly Driscoll
Lieutenant Governor
Rebecca L. Tepper
Secretary
Bonnie Heiple
Commissioner
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Certified Mail # 9589 0710 5270 2599 0812 83
McDonald’s USA, LLC RE: Salem
P.O. Box 588 150 Canal Street
Weare, NH, 03281 RTN 3-0034275
ENF00019577
Attention: Sandra Martel, Real Estate Portfolio Manager
Stamford Field Office
(Sandra.Martel@us.mcd.com)
NOTICE OF AUDIT FINDINGS
NOTICE OF NONCOMPLIANCE
AUL AUDIT INSPECTION
TECHNICAL/COMPLIANCE SCREENING AUDITS
Dear Sandra Martel:
The Massachusetts Department of Environmental Protection (MassDEP or the Department) has
conducted an audit of a Permanent Solution Statement (PSS) submitted on July 16, 2018, and a Notice
of Activity and Use Limitation (AUL) submitted on July 10, 2018, for the above-referenced site. The
objective of the audit was to determine if response actions meet the requirements of Massachusetts
laws and regulations, including Massachusetts General Law Chapter 21E (M.G.L. c. 21E) and the
Massachusetts Contingency Plan (MCP), 310 CMR 40.0000.
MassDEP’s audit of this site consisted of an inspection (Level 2 Audit) of the area subject to the AUL
and technical screens (Level 1 Audits) of the PSS and AUL. Level 1 Audits are performed using
standard MassDEP checklists. Examples of MassDEP’s checklists are available on the internet at
https://www.mass.gov/info-details/waste-site-cleanup-audits. This Notice informs you (as used in this
notice, “you” refers to McDonald’s USA, LLC) of the results of MassDEP’s audits.
February 19, 2025
Salem, 150 Canal Street, RTN 3-34275 Page 2
Notice of Audit Findings
ACTIVITY AND USE LIMITATION AUDIT INSPECTION
On October 21, 2024, MassDEP conducted an AUL Audit Inspection at the site to observe conditions
related to the area subject to a Notice of AUL. In particular, the inspection focused on whether
activities and uses were consistent with the terms and conditions of the AUL and whether obligations
and conditions required to maintain a condition of No Significant Risk were being met. The area
subject to the AUL consists of a McDonald’s restaurant with concrete walkways and outdoor seating
surrounded by a paved parking area with landscaping. The AUL area was consistent with that shown in
the AUL sketch plan. Uses and activities were consistent with the terms of the AUL. Based upon the
inspection, MassDEP has determined that no violations of the requirements applicable to the AUL
activities and uses at the site have been identified. A copy of MassDEP’s AUL Field Screening Form is
attached.
PERMANENT SOLUTION STATEMENT TECHNICAL SCREENING AUDIT
A technical screening audit of the PSS was performed using a standard MassDEP checklist. The
technical screening audit was conducted to identify conditions that pose or could pose Imminent
Hazards, identify conditions that require Immediate Response Actions, or recommend the site for a
targeted comprehensive audit. Based on the technical screening audit of the PSS, MassDEP is not
directing you to undertake further response actions with regard to the PSS at this time.
ACTIVITY AND USE LIMITATION COMPLIANCE SCREENING AUDIT
A compliance screening audit of the AUL instrument was performed to ensure that the AUL
instrument has been prepared in conformance with and meets the requirements of the MCP. As a result
of the compliance screening audit, MassDEP identified violations of the requirements applicable to the
AUL instrument at the site that require actions to bring the site back into compliance (see Attachment
A).
DETERMINATION
As a result of the audit, MassDEP has determined that violations of M.G.L. c. 21E and the MCP have
occurred. Violations were identified that require additional actions to be taken under the supervision of
a Licensed Site Professional (LSP) in order to come into compliance with the MCP. The activities that
are in noncompliance and the actions MassDEP wants you to take to come into compliance are
described in the attached Notice of Noncompliance (Attachment A). The Notice of Noncompliance
describes: (1) each activity identified during the audit which is in noncompliance; (2) the requirements
violated; (3) the action MassDEP now wants you to take to come into compliance; and (4) the deadline
for taking such action.
POST-AUDIT COMPLETION STATEMENT REQUIRED
You do not need MassDEP approval to take the actions specified. However, to avoid further
enforcement actions, you must correct the violations and submit via eDEP a Post-Audit Completion
Statement in accordance with 310 CMR 40.1170. A copy of the Post-Audit Completion Statement
(BWSC111) can be found at https://www.mass.gov/lists/waste-site-cleanup-forms.
Salem, 150 Canal Street, RTN 3-34275 Page 3
Notice of Audit Findings
LICENSED SITE PROFESSIONAL
A copy of this letter has been sent to Kevin Kavanaugh, LSP #7610, the LSP-of-Record for the
Disposal Site. However, you, not your LSP, are responsible for responding to this Notice of
Noncompliance and correcting the violations identified therein. You may retain the services of any
currently licensed LSP to fulfill this obligation.
LIMITATIONS & RESERVATION OF RIGHTS
Please note that the screening of the PSS and AUL conducted by MassDEP were not comprehensive
audits. It is possible that a future comprehensive audit, if one occurs, may identify violations of
applicable laws and regulations for which MassDEP may require you to undertake further response
actions at the site or MassDEP may invalidate the PSS and require termination of the AUL. The review
of these documents is for use by MassDEP and may not be relied upon for any other purpose. The
review does not include a comprehensive list of requirements, which are fully set forth in M.G.L. c.
21E and 310 CMR 40.0000, and does not constitute a final agency decision, nor create any legal rights
or relieve any party of obligations that exist pursuant to applicable laws.
MassDEP’s findings were based upon the accuracy and certainty of the information reviewed during the
audit. These findings do not: (1) preclude future audits of past, current, or future actions at the site; (2)
apply to actions or other aspects of the site that were not reviewed in the audit; (3) in any way constitute
a release from any liability, obligation, action or penalty under M.G.L. c. 21E, 310 CMR 40.0000, or any
other laws, regulations, or requirements. MassDEP retains authority to take or arrange, or to require, any
Responsible Party or Potentially Responsible Party to perform any response action authorized by M.G.L.
c. 21E, which MassDEP deems necessary to protect health, safety, public welfare, or the environment.
If you have any questions regarding this letter, please contact William Hansen at (857) 278-1816 or
william.hansen@mass.gov. Please reference Release Tracking Number 3-34275 and Enforcement
Number ENF00019577 in any future correspondence to MassDEP regarding the site.
Sincerely,
David T. LaPusata
Audits and Enforcement Section Chief
Bureau of Waste Site Cleanup
Attachments: Attachment A – Notice of Noncompliance
Attachment B – AUL Field Screening Form
e-copy:
Salem, Mayor, Dominick Pangallo (mayor@salem.com)
Salem, Board of Health (health@salem.com)
Kevin Kavanaugh, LSP (kevin.kavanaugh@ecmsinc.com)
Jonathan Lietz (jj.lietz@partners.mcd.com)
NERO/Data Entry: AUDCOM/NAFNON; AUL/SNAUDI
Salem, 150 Canal Street, RTN 3-34275 Page 4
Notice of Audit Findings
Attachment A
NOTICE OF NONCOMPLIANCE
RTN 3-34275
NAME OF ENTITY IN NONCOMPLIANCE:
McDonald’s USA, LLC
LOCATION WHERE NONCOMPLIANCE OCCURRED OR WAS OBSERVED:
150 Canal Street, Salem, Massachusetts
DATES WHEN NONCOMPLIANCE OCCURRED OR WAS OBSERVED:
July 10, 2018, the receipt date of the Notice of Activity and Use Limitation (AUL) submittal.
July 16, 2018, the receipt date of the Permanent Solution Statement (PSS) submittal.
DESCRIPTION OF NONCOMPLIANCE:
Note: References herein to “Book”, “Plan Book”, and “Page” refer to documents recorded with the
Southern Essex District Registry of Deeds.
Violation of 310 CMR 40.1074(2)(a) – Contents of a Notice of Activity and Use Limitation
Pursuant to 310 CMR 40.1074(2)(a)2 and 310 CMR 40.1074(2)(a)3, a Notice of AUL shall contain a
metes and bounds description of the parcel(s) of land which contain(s) the area that is subject to the
Notice of AUL, and a reference to a survey plan of the parcel(s) of land which contain(s) the area that
is subject to the Notice of AUL, prepared by a Massachusetts Registered Land Surveyor, that has been
recorded as a plan with the appropriate registry of deeds and/or a Land Court Plan.
Pursuant to a Quit Claim deed recorded on September 14, 2015 (Book 34369, Page 574),
approximately 800 square feet of the property (adjacent to Canal Street) was deeded to the City of
Salem. Following this transaction, a new survey plan for the Property (that was prepared by a
Massachusetts Registered Land Surveyor and recorded as a plan with the appropriate registry of deeds)
was not referenced in the AUL, and the metes and bounds description of the property was not revised
to reflect the current geometry of the parcel, which is a violation of 310 CMR 40.1074(2)(a) 2 and 310
CMR 40.1074(2)(a)3.
Violation of 310 CMR 40.1074(2)(c) – Contents of a Notice of Activity and Use Limitation
Pursuant to 310 CMR 40.1074(2)(c), if a person(s) signing the Notice of Activity and Use Limitation is
not an individual signing on his/her own behalf, but rather on behalf of an entity (LLC, LLP, limited
partnership, etc.), or as trustee, executor, or attorney in fact, documentation consistent with
conveyancing standards and practices verifying that the person(s) signing the Notice of Activity and
Use Limitation has the authority to sign such document shall be attached as an exhibit to the Notice of
Activity and Use Limitation.
Salem, 150 Canal Street, RTN 3-34275 Page 5
Notice of Audit Findings
The AUL was signed by Padraic G. Molloy as Corporate Assistant Secretary of McDonald’s
Corporation. However, documentation of Padraic G. Molloy’s signatory authority was not attached to
the AUL, which is a violation of 310 CMR 40.1074(2)(c).
Violation of 310 CMR 40.1074(2)(j) – Contents of a Notice of Activity and Use Limitation
Pursuant to 310 CMR 40.1074(2)(j), a Notice of AUL shall contain a description of the obligations
and/or conditions that are necessary to meet the objectives of the Notice of AUL, including, but not
limited to the type and frequency of activities for the inspection and maintenance of, as applicable,
barriers, Engineered Barriers, and Exposure Pathway Mitigation Measures, and, pursuant to 310 CMR
40.1025, the type and frequency of activities for the inspection, operation, maintenance of an Active
Exposure Pathway Mitigation Measure and the requirements for remote monitoring and notification.
The AUL specifies “The buildings, asphalt pavement, concrete and other impermeable barriers shall be
maintained in the area shown on Exhibit B. These barriers shall be maintained to prevent exposure to
site workers, visitors and trespassers. If impermeable barriers are removed and not replaced with a
similar impervious barrier, emplacement of a cap consisting of three feet of clean fill is required.” The
AUL does not specify the frequency of activities for the inspection and maintenance of these barriers,
which is a violation of 310 CMR 40.1074(2)(j).
Violation of 310 CMR 40.1074(4)(b) – Filing with the Department
Pursuant to 310 CMR 40.1074(4)(b), within 30 days of recording and/or registering any Notice of
AUL, the property owner shall submit to the Department a Registry copy of the required survey plans
referenced in the Notice, bearing the plan book/plan number(s).
An AUL for the subject property was recorded at the South Essex County Registry of Deeds on July 6,
2018. To date, the Department has not received a copy of the survey plan referenced in the AUL,
which is a violation of 310 CMR 40.1074(4)(b).
Violation of 310 CMR 40.1403(7)(a) – Minimum Public Involvement Activities in Response
Actions
Pursuant to 310 CMR 40.1403(7)(a), within 30 days after recording and/or registering any original,
amended, released or terminated Activity and Use Limitation pursuant to 310 CMR 40.1070 through
40.1080, a copy of the recorded and/or registered Activity and Use Limitation shall be provided to the
Chief Municipal Officer, the Board of Health, the Zoning Official, and the Building Code Enforcement
Official in the community(ies) in which the property subject to such Activity and Use Restriction is
located.
Appendix G of the PSS included copies of letters (“Notification of Activity and Use Limitations &
Permanent Solution Statement with Conditions”) that were dated June 10, 2018, and sent to the Health
Department and Mayor of the City of Salem. There were no indications that similar notifications were
sent to the Zoning Official, and the Building Code Enforcement Official of Salem, which is a violation
of 310 CMR 40.1403(7)(a).
Salem, 150 Canal Street, RTN 3-34275 Page 6
Notice of Audit Findings
It was also noted that the letters instructed the Health Department and the Mayor to access a copy of
the AUL using “MassDEP’s Searchable Sites web site… by entering the Release Tracking Number
(RTN) (3-34275) into the search criteria.” This type of notification is deficient because:
1. One would need to enter “3-0034275” (not “3-34275”) into the search criteria to access the
disposal site files; and
2. 310 CMR 40.1403(7)(a) requires that the local officials be provided a copy of the AUL (i.e.,
not told where to obtain a copy).
ACTIONS TO BE TAKEN AND THE DEADLINE FOR TAKING SUCH ACTIONS:
Actions are required to correct the violations identified herein. In order to return the site to compliance,
by June 18, 2025, the following must be submitted to MassDEP through eDEP:
1) Using Form BWSC113, a termination of AUL (using AUL Form 1084C, in full compliance
with the MCP); and
2) Using Form BWSC113, a new Notice of AUL (using AUL Form 1075, in full compliance with
the MCP). The AUL Form 1075 should not be modified in any way, unless allowable under the
regulations. The new Notice of AUL must correct the violations identified above and must
make reference to a survey plan of the parcel(s) of land which contain(s) the area that is subject
to the Notice of AUL, prepared by a Massachusetts Registered Land Surveyor, that has been
recorded as a plan with the appropriate registry of deeds and/or a Land Court Plan. A Registry
copy of the required survey plan referenced in the Notice of AUL, bearing the book and plan
numbers, must be included with this submission.
As indicated on page 2 of this document, a Post-Audit Completion Statement (BWSC111) is required
after the violations have been corrected.
If you fail to correct the violations identified herein and provide documentation of such action to
MassDEP, you may be subject to enforcement action by MassDEP. MassDEP may conduct a follow-
up audit to determine whether the required actions have been taken. If MassDEP finds that violations
have not been corrected, then MassDEP may issue a Notice of Intent to Assess a Civil Administrative
Penalty (PAN), administrative enforcement order, Notice of Responsibility, Notice of Intent to Take
Response Action (NORA), Administrative Consent Order, Unilateral Order, or seek Judicial
Judgement, as appropriate. You may also be subject to cost recovery under 310 CMR 40.1200 for
failure to perform response actions at the Disposal Site.
Site Name: Existing McDonald’s Restaurant #20-0140 Contact Person: Tim Boulay
Phone: Address: 150 Canal Street
AUL INFORMATION SITE INSPECTION
Date AUL filed:
07/06/2018
Description of AUL area at time of filing:
☒ Building(s) ☒ Pavement ☒ Cap/Cover
☒ Grassed/Landscaped ☐ Other
Boundaries of AUL area(s) identifiable? ☒ Yes ☐ No
Complete access to all AUL area(s)? ☒ Yes ☐ No
Evidence of recent excavation/disturbance ☐ Yes ☒ No
Evidence of recent construction ☐ Yes ☒ No
Remediation Waste present? ☐ Yes ☒ No
Indication of potentially serious site conditions? ☐ Yes ☒ No
Other Notes:
AUL covers: ☒ Property ☐ Portion of the Property
☐ Unclear
Additional details/other relevant info on AUL area(s):
PERMITTED ACTIVITIES AND USES OBSERVED ACTIVITIES AND USES
☐ Residential ☐ Daycare ☐ School ☐ Playground
☒ Commercial ☒ Industrial ☐ Excavation ☐ Construction
☐ Recreation
Other/Details/Conditions:
Residential, daycare, nursery, school, playground, recreational so
long as covers are maintained.
☐ Residential ☐ Daycare ☐ School ☐ Playground
☒ Commercial ☐ Industrial ☐ Excavation ☐ Construction
☐ Recreation
Comments:
McDonald’s restaurant with drive-through and outdoor concrete
patio seating surrounded by pavement and landscaped area.
VIOLATION OBSERVED: ☒ No ☐ Yes ☐ Possible
INCONSISTENT/RESTRICTED ACTIVITIES AND USES OBSERVED ACTIVITIES AND USES
☐ Residential ☐ Day Care ☐ School
☐ Playground ☐ Park ☐ Recreation
☐ Construction ☒ Excavation ☒ Disturbance
☐ Gardening: ☒ Fruits/Veggies ☐ Flowers/Landscaping
Other/Details/Conditions:
Single family residential.
☐ Residential ☐ Day Care ☐ School
☐ Playground ☐ Park ☐ Recreation
☐ Construction ☐ Excavation ☐ Disturbance
☐ Gardening: ☐ Fruits/Veggies ☐ Flowers/Landscaping
Comments:
McDonald’s restaurant with drive-through and outdoor concrete
patio seating surrounded by pavement and landscaped area.
VIOLATION OBSERVED: ☒ No ☐ Yes ☐ Possible
OBLIGATIONS AND CONDITIONS OBSERVED CONDITIONS
☒ Maintain Pavement ☒ Maintain other cap/cover/liner
☒ Soil Management Plan ☒ Health & Safety Plan
☐ Maintain Signs/Notices
Other/Details/Conditions:
☐ Pavement ☐ Cap/Cover/Liner ☐ Signs/Notices
Comments:
Parking lot in very good condition and landscaping kept neatly
with no evidence of recent digging.
VIOLATION OBSERVED: ☒ No ☐ Yes ☐ Possible
Additional comments/notes attached to this form? ☒ No ☐Yes Additional comments/notes attached to this form? ☒ No ☐ Yes
AUL sketch attached to this form? ☒ No ☐ Yes Completed by: William Hansen Insp Date: 10/21/2024
MASSACHUSETTS DEPARTMENT OF ENVIRONMENTAL PROTECTION
Northeast Regional Office/Bureau of Waste Site Cleanup
AUL FIELD SCREENING FORM TOWN: SALEM
RELEASE TRACKING NUMBER
3- 34275