Ohio EPA has established its own voluntary cleanup program for addressing hazardous substances and obtaining a legal release from liability- the Voluntary Action Program (VAP). The VAP program has been on the books since 1995.
When the VAP was created its purpose was to allow the private sector to address historical contamination at industrial or commercial properties. The key word in the program's title "Voluntary" means that Ohio EPA does not order companies to complete the VAP. Rather, the program offers an opportunity to either:
- Address historical contamination at brownfield sites that may otherwise limit or prohibit redevelopment; or
- Allow an operating company to address its potential liability for historical contamination at a property it is still utilizing.
In the nearly twenty years of the VAP, approximately 360 properties have completed the cleanup process and obtained an legal release. (You can visit a map of VAP properties here) In reality, 360 VAP cleanups is not that many considering there are thousands of properties in Ohio with historical contamination.
A complex set of rules and guidance documents govern VAP cleanups. Those documents are accessible through Ohio EPA's website. Here is a very brief overview of the process:
- Hire a Certified Professional (CP)- In order to perform a VAP cleanup and receive a legal release from the State you must retain a CP. A CP is an environmental consultant that has been certified by Ohio EPA has being technically capabale of completing a VAP cleanup.
- "No Further Action" (NFA) Letter- Unlike other regulatory cleanup programs, VAP is intended to allow a CP to complete a cleanup without Ohio EPA review of sampling and cleanup plans prior to initiating work. The CP can develop a NFA without oversight by the Agency. However, if a company wants a legal release from the State, the NFA must be submitted to Ohio EPA. The components of an NFA would likely include: the Phase I/Phase II assessment, a Risk Management Plan, an Operation & Maitenance (O&M) Plan, an O&M agreement and an Environmental Covenant.
- "Covenant Not to Sue" (CNS)- If the company decides it wants a legal release from the State upon completing a VAP cleanup, it must have its CP submit the NFA for review. If the Ohio EPA agrees that the NFA meets VAP cleanup regulations and the property meets VAP standards, it will issue the CNS.
Issues/Considerations with VAP Cleanups
While the VAP has been a success, there are complex issues that must be evaluated prior to initiating a cleanup under the program. Some of those considerations include:
- Benefits- Company's looking to address potential liability exposure, the VAP is worth considering. Performing a VAP to address contamination will make property more marketable as most major banks are familiar with the program in Ohio. Furthermore, the VAP is a key tool for brownfield redevelopment in order to attract new tenants or users of the property who may otherwise be concerned with environmental liability or exposures associated with old industrial or commercial properties.
- Limits on CNS- The CNS does not release you from liablity from third party property damage or injury lawsuits, including toxic tort claims related to exposure to releases of contamination. Furthermore, the State takes the view that the CNS is also limited to the property itself, not contamination that has left the property. Finally, the CNS does not include a release from U.S. EPA (although you can obtain certain comfort that U.S. EPA won't pursue separate action once the VAP cleanup is complete).
- Eligibility Issues- Certain regulatory requirements must be addressed before a property can be deemed eligible to participate in the VAP. Properties subject to State environmental enforcement may not be eligible. Portions of the property required to be cleaned up under hazardous waste regulations (RCRA) are ineligible until cleanup is completed. The presence of underground storage tank (USTs) can complicate VAP eligibility.
- Complex Cleanup Issues- Each site cleanup is different. However, it doesn't take much for a site to present complex cleanup challenges. Existing buildings and structures may present vapor intrusion issues. Off-property migration of contaminated groundwater may also need to be addressed. Impacts to surface water or other ecological features may need to be evaluated.
- Costs- Again, each site cleanup is different. However, the cost of cleanup can be expensive. State and local brownfield grant programs can help mitigate those costs. Even the costs of preparing and submitting the documents to Ohio EPA can be costly. Due to such cost considerations, some businesses have decided to utilize the VAP standards to address historical contamination without submitting the NFA to the Agency for review.
Options to Address Environmental Liability in Ohio
The VAP has been a very useful tool for addressing historical contamination. However, the costs and complexities involved in completing such cleanups make it less attractive, particular for smaller sites with very limited contamination.
As discussed in prior posts, Ohio currently does not have a less formal means of addressing historical contamination, such as Michigan's Baseline Environmental Assessment Program. This leaves may buyers or tenants with choosing between costly VAP cleanups or performing due diligence to try and establish the federal "Bona Fide Purchaser Defense."