One of the issues that can complicate a clean up is if multiple environmental regulatory programs apply to the site. Even the same type of contamination may be required to be addressed under different programs and different processes.
A prime example of this issue in Ohio is the disconnect between Ohio’s Voluntary Action Program (VAP) and the Bureau of Underground Storage Tank Regulation (BUSTR) which applies to petroleum underground storage tanks (USTs). Until recent legislation, a BUSTR regulated UST was totally ineligible for clean up under the VAP.
As a practical matter, the ineligibility of BUSTR tanks can cause significant delays on a clean up project. Why? Because the property owner typically wants to eliminate the BUSTR eligibility issue first by investigating and cleaning up USTs under BUSTR regulations before proceeding with the VAP.
If you don’t front load the BUSTR clean up and proceed with the VAP, you can be left with what is called a "Swiss Cheese" covenant upon completing the VAP- you get a legal release (covenant not to sue- CNS) from Ohio EPA that excludes all areas failing to complete a BUSTR required clean up.
In order to avoid the "Swiss Cheese" CNS, property owners complete their BUSTR Tier 1 investigations and Tier 2 clean up, if needed, under BUSTR regulations first before completing the VAP. This often prolongs a clean up by months or even up to a year. It also adds costs to the project.
Does this really make sense when both VAP and BUSTR clean up standards have been determined to be protective of human health and the environment?
New Legislation Creates BUSTR Class C
In an attempt to partially remedy the delays caused by the conflict between BUSTR and VAP, House Bill 152 amended the law on June 30, 2011. The new law is effective as of September 28th.
The law states that certain BUSTR USTs- Class C tanks- can be cleaned up under the VAP without completing a BUSTR clean up first. The tank has to be removed in accordance with BUSTR regulations, but the soil assessment and clean up can be performed under the VAP.
A Class C release is defined as a release of petroleum subject to BUSTR laws, where the responsible person for the release is determined by BUSTR to not be a viable person capable of undertaking or completing the required assessment and clean up. In other words, the responsible party has no money to perform the BUSTR clean up.
BUSTR can determine a UST is a Class C if the following apply:
- responsible party is deceased or bankrupt
- a review of financial records demonstrates the responsible party is financially unable to assess and clean up the release
Based upon an Ohio EPA fact sheet on the BUSTR Class C designation, 121 sites have Class C releases already determined (as of July 12, 2011).
For more information here is a link to Ohio EPA’s web page discussing the Class C designation.
Class C Designation Doesn’t Go Far Enough
As discussed above, the fact BUSTR clean up regulations can apply to a VAP clean up can result in significant delays, added costs and additional complexities. Both clean up programs are protective of the environment. So, why not allow all BUSTR regulated tanks to be closed and cleaned up pursuant to the VAP?
I suppose the State’s answer is, in part, if a viable party responsible for the tanks exists they shouldn’t be allowed off the hook for their BUSTR clean up obligations. This would be rewarding a tank owner who ignored its legal obligations.
The only problem with that argument is that the ineligibility of BUSTR tanks for the VAP really hurts the volunteer more than it does the responsible party. The volunteer wants an expedited and cost effective clean up. The volunteer often doesn’t want to chase down the responsible party before completing its clean up. Forcing the volunteer to address the outstanding BUSTR obligations first before proceeding with the VAP results in both delays and added costs to the detriment of the volunteer.
Why not at least allow a volunteer to address BUSTR tanks under the VAP without having to demonstrate the tank’s responsible party is not viable? You could still exclude the responsible owner from using the VAP. This would at least not reward the UST responsible party, but would greatly assist the volunteer.