Ohio EPA Responds to Concerns Regarding the VAP and the Agency's Response to TCE

[SPECIAL BLOG POST: Ohio EPA asked to publish a guest post on the Ohio Environmental Law Blog regarding recent developments pertaining to the Agency's response to sites with trichloroethene (TCE) and the Voluntary Action Program (VAP).  The Ohio EPA response is posted below in its entirety]

In August 2017, Ohio EPA announced to Certified Professionals (CPs) that letters would be sent to owners of trichloroethene (TCE) contaminated properties. The intent of the agency’s action is to inform property owners that U.S. EPA had lowered the acceptable indoor air levels for TCE, and updated the federal technical guidance on assessing vapor intrusion to indoor air stemming from soil and/or ground water contaminated with solvents such as TCE. In the letter, Ohio EPA requested that owners evaluate the conditions on their property to ensure TCE vapor intrusion was not harming people working or living on their property or that nearby neighbors were not affected. While the intent of the letter is to inform the property owner in order to prevent human health risks, this announcement caused some concern among the Voluntary Action Program (VAP) community, leading some to mistakenly believe that Ohio EPA was undermining the value of a Covenant-Not-to-Sue (CNS) issued through the VAP.

While most acceptable indoor air levels for chemicals are based on a chronic risk, or long-term exposure, the change made by U.S. EPA regarding TCE was based on an acute risk, or short-term exposure, particularly to women with developing fetuses. This change presented a concern to Ohio EPA because fetal heart anomalies were determined to occur with only a few weeks of exposure to breathing TCE above the health standards.  Therefore, prompt attention to this new standard and exposure timeframe required a timely and thorough reevaluation of all known sites that may have TCE contamination. As part of this review, Ohio EPA contacted the property owners, informing them of this change, and asking them to investigate the conditions, and to make sure that people at and near their property were not being harmed. This action is consistent with the responsibility of the Director of Ohio EPA to ensure that the health of Ohio’s citizens is adequately protected.

Ohio EPA’s interest is in public health and not to invalidate property owners’ CNSs as part of this reevaluation. To date, no CNS has been revoked under this reevaluation, nor is Ohio EPA requiring a property with a CNS to update to the new federal standard for TCE.  Ohio EPA is working cooperatively with property owners to ensure that public health is protected. Our request for property owners to look at the information they have, and, if necessary, take samples, is in fact a good and necessary choice for these property owners. Understanding that a property is adequately protective allows an owner to use or redevelop a property with the certainty that it won’t be harmful to users or neighbors.  It protects the value of the property, enables safe and economically feasible redevelopment of contaminated property, and allows reduced remediation without having to “turn a blind eye” on future liability and injury.

The VAP has always acknowledged the Director’s responsibility to address imminent health threats; the reevaluation of potential exposure to unsafe levels of TCE is not a separate, or new legal authority.  Each CNS that is issued by Ohio EPA states, “Nothing in the Covenant limits the authority of the Director to request that a civil action be brought pursuant to the ORC or common law of the State to recover the costs incurred by Ohio EPA for investigating or remediating a release, or threatened release, of hazardous substances or petroleum at, or from the Property, when the Director determines that the release or threatened release poses an imminent and substantial threat to public health or safety or the environment.”  This provision allows Ohio EPA to evaluate for current, or likely imminent, health threats, and recover expended costs when a property owner is uncooperative and an imminent health threat may exist.

Ohio EPA is aware that some members of the public may have mistakenly inferred that a CNS issued after the submission of a No Further Action Letters (NFAs) is no longer worthwhile for property owners to obtain.  That assumption is false. Furthermore, it has been stressed that the Ohio EPA VAP is losing relevance, with the proof offered being the lower number of NFAs that have been submitted to the Ohio EPA in the past year.  That assumption is also false. Ohio EPA’s position is that NFAs submitted for a CNS is not the only measure of the success of the VAP.  The number of NFAs submitted for a CNS fluctuates over time and can be impacted by a variety of factors. One of the factors that has the greatest impact is the implementation of a new rule change. This results in a significant increase in NFA submittals, like the one that occurred in 2014.  Another factor is the change in brownfield funding available in the state. Loss of sources of funding, such as the Clean Ohio Fund, will continue to reduce the number of NFAs submitted to Ohio EPA in the coming years. CPs have indicated that only 10 percent of their VAP work is ever submitted to Ohio EPA for CNS, because volunteers, lenders and insurance companies are comfortable with work done by VAP CPs who follow VAP rules and guidelines. These institutions don’t require a CNS from Ohio EPA for there to be value in the program. Ohio EPA considers the program a success knowing that the use of the program rules and guidelines provide participants that level of comfort. 

In summary, Ohio EPA is not taking this action due to a meaningless bureaucratic function. Ohio EPA is committed to ensuring protectiveness of human health and the environment, particularly when significant questions such as TCE exposure are raised by the best science and research available from US EPA. The VAP has shown over the past 22 years, that the program is able to protect human health without putting a stop to redevelopment, which demonstrates that citizens, owners, workers, and neighbors can be adequately protected without invalidating the VAP program.

Has Ohio Undermined Its Voluntary Cleanup Program?

As discussed in my prior post, in September Ohio EPA announced that it would be sending "hundreds of letters" to property owners that have trichloroethylene  (TCE) contamination, including property owners that cleaned up their property under the Voluntary Action Program (VAP).  At the September meeting of VAP professionals the Agency announced that it could take legal action against property owners with TCE contamination even if the property owner received a Covenant-Not-to-Sue (CNS) under the VAP (i.e. a legal release).

Since the September meeting many in the environmental community have questioned whether the Agency has undermined a cornerstone of the program- the ability to rely on a legal release through a VAP CNS that no additional cleanup would be required.  The Agency was careful to state it would not be reopening the CNS to apply the more stringent TCE VAP cleanup standard.  The Agency still agrees the VAP CNS locks in the cleanup standards once the CNS is issued (even if standards get more stringent for certain types of contamination based on the more up-to-date science).

The ability to lock in cleanup standards has always been viewed as one of the most significant incentives for submitting a VAP No Further Action (NFA) letter to Ohio EPA to obtain a CNS.   Without the ability to rely on the legal release, the VAP would provide very little incentive to make public information about levels of contamination at your property.  

While the Agency said it would not reopen a CNS issued under the VAP to apply the more stringent TCE cleanup standard, the Agency also said it has an obligation to protect public health and the environment.  The Agency indicated it has separate legal authority, outside the VAP program, to take action at properties it believes present a threat to public health and the environment.  The Agency stated it could perform cleanup itself and recover its costs under this separate legal authority if property owners refused to do anything more to address TCE at their sites.

Legal End Around?

While Ohio EPA says it would not reopen VAP covenants to apply more stringent cleanup standards, it said it could use other legal authority to take action to address TCE.  Most property owners won't care which legal authority the Agency utilizes. Most will be upset that they are being told to perform more investigation or cleanup after they thought they had met all their obligations.

Does this the Agency's recent announcement weaken the VAP program?  It certainly diminishes the incentive of entering the program.  

For years, many outside attorneys and consulting firms have advocated simply cleaning up the property to VAP standards and obtaining an NFA, but electing not to submit the NFA to Ohio EPA to obtain a CNS.  What are the perceived advantages to this approach:

  • Meeting VAP standards provides a technical argument that the property does not present a threat to public health or the environment;
  • While not a legal release, the Ohio EPA or U.S. EPA would have a much more difficult time taking enforcement against a property that is deemed protective of the public health or the environment (as indicated by issuance of the NFA);
  • By not submitting the NFA to Ohio EPA all sampling data can remain confidential.  No information will be accessible by the public regarding the condition of the property; and
  • By not submitting the NFA, the owner avoids the costs associated with Ohio EPA's review of a CNS

While there are advantages to not submitting an NFA to obtain a CNS, these must be balanced against the limitations of such an approach:

  • The CNS still locks in cleanup standards.  Obtaining only an NFA leaves the property open to application of more stringent cleanup standards;
  • A CNS still provides a much stronger legal defense against EPA enforcement for cleanup
  • A property with a CNS is more easily transferred to a new owner because the property still has a sign-off from the Ohio EPA that the property meets standards;
  • Financing is more easily obtained for a property with a CNS versus an NFA; and
  • While the VAP is self-implementing, it is very common for VAP Certified Professionals and Ohio EPA to disagree over whether the cleanup was sufficient.  Obtaining a VAP CNS provides the assurance the Agency signed off on the cleanup.

This laundry list of pro's and con's make this a complex decision for the property owner.  The recent announcement regarding notices to property owners holding a CNS with TCE contamination adds another factor to be considered.  

The numbers don't lie, the number of VAP CNS have gone down over the last few years. 

VAP CNS Issued by Year
Year

NFA Letters

Requesting a CNS

CNS Issued Review Pending
2014 65 60 2
2015 33 33 0
2016 28 18 7
2017 to date 14 2 12

 

The cost and complexity of the program results in only a limited number of sites entering the property each year.  As has been discussed in prior blog posts, Ohio need to develop more options to address liability from pre-existing contamination to accelerate reuse of brownfields in Ohio. 

 

Ohio EPA to Issue Letters Regarding TCE to Property Owners

At a recent meeting of brownfield cleanup professionals, Ohio EPA announced plans to issue letters to owners of property contaminated with TCE.  Ohio EPA says it reviewed thousands of sites and will be issuing letters to "hundreds" of sites where it has information in its files that TCE is present. Based on this review, the Agency intends to send letters in instances where TCE levels may be above recently lowered health risk standards.

While a draft of the letter was not provided, Ohio EPA indicated that the letter would "inform the property owner that TCE may be a health concern at their property."  The letters will request the following:

  • Ask the owner to evaluate the health risks (both on and off their property)
  • Ask that the owner notify the Ohio EPA of their plans of action and results

The letters will trigger a flurry of activity across the state as owners try and figure out the practical and liability implications of receiving notice the Agency believes their property may present a health risk.

Do Standards Move under the VAP?

The Agency said it even will reopen some sites that have completed an acceptable cleanup under Ohio EPA's Voluntary Action Program (VAP). Site owners will receive a letter if the Agency has information in its files that suggests TCE could be present at levels above the new more stringent standard for TCE (even if the property received a legal release based upon the old TCE standard).

At the meeting concern was expressed by brownfield professionals that the Agency was applying the new standard at closed VAP sites.  A core principal of the VAP program was that standards would not change after a volunteer completed a VAP cleanup. It was noted that standards used at the time of cleanup are directly tied to the legal release the property owner receives from Ohio EPA after completing the VAP cleanup (i.e. Covenant-Not-to-Sue or CNS).

With regard to properties covered by a CNS, Ohio EPA stated they hoped the property owner would "do the right thing" even in instances when the cleanup standards applicable at the time the CNS was issued are still not being exceeded.  However, Ohio EPA noted that it retains separate legal authority outside the VAP program to take action and recover its costs at any property the Agency believes may present an "imminent and substantial threat to public health and safety."

Implications for Property Owners and the VAP

The Ohio EPA announcement signifies a further escalation of its efforts to apply the new TCE risk standard to properties that either are not currently undergoing voluntary cleanup as well as those that actually completed such cleanups. The concern among the private sector and property owners is that the new TCE risk standards are very conservative.  Publicly calling out potential health risks both on and off property based on a conservative risk standard raises the liability exposure for property owners across the state.  

There is also concern that the Agency's actions on TCE may have the unintended consequence of dissuading property owners and developers from entering the VAP program.  With a few limited exceptions, Ohio law does not require property owners to make public sampling data obtained through due diligence as part of private transactions.  Therefore, unless a property owner believes the value of the VAP CNS outweighs the liability risks disclosure brings, owners will not be inclined to enter the VAP and make information about their site public.

With hundreds of property owners receiving letters it will be important to get advice from environmental consultants and attorneys regarding the implications for their particular site.

Ohio EPA Takes Hard Look at Vapor Intrusion Risks

Vapor intrusion is the process where contamination in soil and groundwater volatilizes and enters indoor air in buildings.  Understanding and evaluating the risks to occupants of buildings with vapor intrusion issues has received dramatic new focus nationally in recent years.

In Ohio, scrutiny of vapor intrusion issues is at an all time high.  This post details some of the recent significant initiatives and actions taken by Ohio EPA to address vapor intrusion.

Ohio EPA Revokes 2010 Vapor Intrusion Guidance

On May 27, 2016, Ohio EPA announced that it was revoking prior guidance in place since 2010 on analyzing the risks associated with vapor intrusion.  Ohio EPA revoked two entire chapters of its 2010 vapor intrusion guidance document.  It also indicated that environmental consultants should utilize U.S. EPA’s guidance document titled, “Technical Guide for Assessing and Mitigating the Vapor Intrusion Pathway from Subsurface Vapor Sources to Indoor Air (June 2015)” and U.S. EPA’s Vapor Intrusion Screening Level (VISL) calculator.

The VISL calculator is a new tool utilized by U.S. EPA to quickly determine whether a site presents a potentially unacceptable health risks due to vapor intrusion.  Using the VISL, soil gas, soil and groundwater sample results are plugged into the calculator to determine if risk presented by the detected contaminant levels exceed screening levels.  If screening levels are exceeded, the Agency can require either more investigation or cleanup.

The VISL replaces prior modeling techniques that have been utilized for years to evaluate contaminated properties.  Ohio EPA's 2010 Vapor Intrusion Guidance document relied heavily on the Johnson & Ettinger (J&E) model to analyze risk.  J&E was used to evaluate vapor intrusion at hundreds of site in Ohio.

Some consultants tell me that the VISL is approximately 50 times more conservative than the J&E model.  As a result, site contamination issues previously thought to present no issues under J&E are now viewed as significant problems under VISL.

Ohio EPA's revocation of portions of its 2010 vapor intrusion guidance includes the chapters regarding the J&E model.  Ohio EPA's announcement included a statement that all sites currently being evaluated will no longer consider J&E data valid and will require use of the VISL.

Ohio EPA Reviews TCE Site Inventory

Ohio EPA has also decided to heavily scrutinize any site with trichloroethylene (TCE) contamination (typically associated with a solvent used to clean metal parts).  A new study determined that the risk presented by exposure to TCE contamination to woman of child bearing years and pregnant women are greater than previously thought.  Those risks are also thought to be acute risks (i.e. short term) versus the long term risk based upon 30 years of exposure used to develop many cleanup standards.  

Beginning in the later part of 2015 and continuing through today, Ohio EPA has been internally evaluating any site where it has data showing TCE contamination.  Those sites are being analyzed using the new TCE cleanup standards and the VISL calculator.  Due to the fact both the cleanup standard and VISL are more conservative, sites are much more likely to be deemed to present potential health issues.  

Ohio EPA has sent letters to owners of sites with TCE contamination requesting additional investigation or cleanup.  In some cases, Ohio EPA has demanded additional testing and if the property owner refused, Ohio EPA performed its own sampling.

In February 2012, at an Ohio EPA brownfield training course, environmental consultants were told of Ohio EPA's position regarding vapor intrusion and TCE.  Here are some of the key points discussed:

  • Ohio EPA will not "sit on data" if it believes an issue exists it will move quickly to seek or take additional action;
  • In terms of sampling techniques to evaluate vapor intrusion, Ohio EPA wants to see sub-slab paired with indoor air samples to analyze the risk;
  • In analyzing vapor intrusion, Ohio EPA will want multiple sample locations and multiple sampling events (to address seasonal variation in contaminant levels);
  • If off-property vapor intrusion needs to be analyzed, the Agency's expectation is the owner/developer will do it.  In not, the Agency will collect the data it needs;
  • Agency is not going to have long technical debates whether a health issue may exist.  If the Agency thinks there may be an issue it wants to act quickly;
  • On Voluntary Action Program (VAP) cleanups, if a consultant is aware of data that indicates a potential health issue, the Agency expects the consultant to come forward with the information even if the property owner or developer doesn't want the information released to the Agency;
  • Due to TCE's short term risks to sensitive populations, the Agency expects quick action and evaluation of data at sites where TCE is at issue.

At the Spring 2016 Ohio Brownfield Conference many of these points were reiterated by Agency representatives.  In particular, participants were told the Agency will act quickly and aggressively when it believes contamination has the potential to present a public health issue.  

Ramifications to Property Owners and Developers

The changes relative to analysis of vapor intrusion in general as well as the specific initiative on sites with TCE, has major ramifications for property owners and developers.  Here are some the issues or considerations for owners/developers:

  • Consultants are under increasing pressure to disclose any data to Ohio EPA that suggests a public health issue may exist;
  • Expectation is that properties with potential vapor intrusion issues on or off site will be evaluated very quickly;
  • The standards and models use to analyze vapor intrusion risk have become significantly more conservative.  Sites are much more likely to be deemed to present potential issues than even a year ago; 
  • All ASTM compliant Phase I reports are supposed to evaluate the potential for vapor intrusion.  In light of the increased focus on vapor intrusion, it is critically important to conduct high quality due diligence prior to acquisition that includes a robust evaluation of the potential for vapor intrusion; 
  • Liability risks have increased dramatically in recent years for owners and/or developers of property that may have vapor intrusion issues; and
  • Due to increased stringency of modeling and cleanup standards, what will the Agency do regarding sites that were previously deemed sufficiently cleaned up under outdated guidance and cleanup standards?