In 1994, the State created the Voluntary Action Program (VAP) to promote voluntary clean up of industrial and commercial sites, including those currently utilized as well as brownfields.
By 1994 standards the VAP program was cutting edge. It utilized certified professionals (CPs) who performed the investigation and implemented clean ups to meet standards established by Ohio EPA. In this sense it was a privatized program. Letting the company or developer ("volunteer") control the clean up process.
By allowing CPs to direct the clean ups to meet standards, costs would be reduced comparative to other clean up programs. Rather than having sampling plans reviewed back and forth, the CP had to meet the rule. Rather than debating appropriate remedies in documents back and forth, the CP designed the remedy and it was acceptable as long as it met VAP standards.
There are many positive elements of the VAP program seventeen years later. However, a look at just the numbers raises the question as to whether its enough or whether other programs need to be developed to get ahead of Ohio’s growing brownfield problem.
Here are the VAP statistics presented by Ohio EPA this winter:
- 422 No Further Action Letters ("NFAs") have been issued by CPs– A NFA is the document that details the clean up meets VAP standards.
- 386 requests for Covenants not to Sue ("CNS")- There is no requirement that a volunteer h submit the NFA to Ohio EPA in order to obtain a CNS (the legal release)
- 18 denied CNSs
- 25 Withdrawn
- 29 pending review
- 314 CNSs have been Issued
To summarize, to Ohio EPA’s knowledge 422 NFAs have been issued by CPs in the seventeen (17) years the program has been in operation. I say "to Ohio EPA’s knowledge" because there is no requirement that you even disclose to Ohio EPA that an NFA was prepared. In fact, many companies elect to simply obtain an NFA an never pursue the CNS from Ohio EPA due to the added administrative costs.
In seventeen (17) years, 314 sites have received a CNS, meaning Ohio EPA has verified the site meets VAP standards and issued a legal release.
Brownfields- Ohio Needs More Tools in its Tool Box
Focusing on brownfields, VAP is the only State tool to remove environmental legal liability with contaminated properties. (Click here for discussion of gaps in federal "AAI Rule") To only have 314 sites addressed in 17 years has to raise the question whether we need other tools than VAP to address these sites in order to get ahead of a growing inventory of brownfield properties.
For comparison, a 1996 study identified approximately 350 brownfields and 1,000, to 2,000 condemned structures in Cleveland. I can’t imagine these number improved following the recent recession.
If you broaden out to Cuyahoga County, the Cuyahoga County Planning Commission found that 40,000 acres, or 14%, of the County’s land, has at some time been devoted to an industry that has historically been known to be a higher risk for environmental contamination.
Those are staggering figures – 314 VAP sites in 17 years versus an estimated 350 sites in Cleveland alone. This represents only one city and one county in Ohio. Just looking at the statistics suggests the VAP alone isn’t enough to encourage reuse of brownfields sites in the State.