In Ohio, the clean up program of choice for brownfields and industrial sites currently used is the Voluntary Action Program (VAP). The program is designed to give a tremendous amount of flexibility to property owners and companies in terms of the nature and extent of clean up performed on their property.
Instead of the traditional "dig and haul" method of cleaning up soil contamination or "pump and treat" contaminated groundwater, the VAP allows the use of both engineering controls and use restrictions. Both can dramatically lower clean up costs.
Engineering controls are barriers that prevent exposure to humans or the environment such as parking lots or buildings. Use restrictions are deed restrictions (i.e. Environmental Covenants) that may prevent development in areas of high soil contamination, prohibit use of groundwater or restrict development to industrial/commercial use.
As long as the owner demonstrates the property meets VAP standards, Ohio EPA will issue a legal release ("covenant not to sue") which states no further clean up is needed. This legal release benefits both the current owner and is transferable to future owners of the property.
Clean Up for Anticipated Future Development
In planning a clean up, it is critical to understand up-front program requirements to obtain you legal release. Under the VAP, a critical requirement is that the owner must implement some form of remedy for all exposure pathways which exceed VAP standards. An "exposure pathway" can be any way a human may be exposed to unacceptable levels of contamination.
Example of Exposure Pathway (Vapor Intrusion)- The most problematic exposure pathway is often vapor intrusion into buildings. Vapors from soil or groundwater contamination can pass through building floors and expose the inhabitants to, what is deemed, unacceptable human health risks.
Under the VAP rules, current and "reasonably anticipated" exposure pathways must be addressed through a remedy. The remedy can be clean up of soil contamination, groundwater treatment, engineering controls or use restrictions.
While the VAP program has been in existence for nearly 17 years, Ohio EPA continues to struggle with how to address anticipated development under the program. The VAP requires the future use of the property must continue to be in compliance with VAP standards.
How do you make that demonstration with regards to future development?
VAP calls future development "reasonably anticipated pathways." Such a pathway would exist if a developer knows a building will be constructed on the site in the future in an area of the property that has contamination.
The VAP rules requires that property owners to demonstrate inhabitants of that future building would not be exposed to unacceptable levels of contaminants. If the area of construction will result in potential exposure above VAP standards, the owner must implement some type of remedy to address that exposure.
Ohio EPA released this week a VAP guidance document designed to assist in evaluating potential exposure pathways- "Reasonably Anticipated Complete Exposure Pathways"
Included in the guidance document is the following statement:
Because development plans are not always known in detail, the identification of a reasonably anticipated exposure pathway for potential development is not always easily done.
That is a gross understatement…even following the EPA guidance. The VAP rules force the developer or property owner to make judgment regarding the potential size, location and configuration of future buildings. These crucial development decisions can have dramatic implications for the amount of clean up needed at the site.
What Happens if Development Plans are Uncertain?
Site conditions at brownfields and other industrial properties can vary dramatically. At some sites the issues of contamination remaining on-site in conjunction with future development can be balanced. At other sites, developers can be forced to make decisions regarding the extent of clean up prematurely.
In its second guidance document EPA tries to provide an administrative remedy to balancing the need for completing the VAP and avoiding expensive clean up before development plans are certain. Ohio EPA suggests carefully crafted environmental covenants can be utilized to satisfy VAP rules, obtain your legal release and provide flexibility for future development.
The guidance is titled "Conducting Remedies in the VAP for Complete and Reasonably Anticipated to be Complete Pathways."
Both guidance documents are highly complex. While the documents provide some level of flexibility to balance development with clean up, it is clearly a complex balancing act that developers must evaluate early in the process.