In Ohio, the primary brownfield cleanup program is known as the Voluntary Action Program (VAP). Volunteers can cleanup their site to commercial/industrial or residential standards. Upon completing the cleanup the volunteer can receive a legal release from the State of Ohio (called a "Covenant-Not-to-Sue" or CNS).
The CNS under the VAP does not include a release of liability from U.S. EPA. In order to attempt to provide an option for volunteers who desired some protection from U.S. EPA enforcement, Ohio created the VAP Memorandum of Agreement (MOA) track.
I have had a few clients in the last couple months ask about the differences between the "Classic VAP" and the VAP MOA. The main reason they ask is because they are interested in the heightened liability protection that is available under the VAP MOA process. However, is the extra cost and longer time frames worth it?
Under "Classic" VAP, the volunteer hires an environmental consultant who is recognized by Ohio EPA as a "certified professional" ("CP") under the VAP. The CP performs the investigatory and cleanup work at the site to VAP regulatory standards. Once the cleanup is complete, the CP prepares a "No Further Action Letter" (NFA) certifying that the property meets VAP standards.
The volunteer then decides if they want the CP to submit the NFA to Ohio EPA for review. If the NFA is submitted to Ohio EPA and the Agency concurs the property meets VAP regulatory standards, then the Agency issues a "Covenant Not to Sue" (CNS). This is a formal legal release of liability from Ohio EPA.
As outlined above, the VAP process is a private cleanup. There is no public involvement and no records are public until they are submitted to Ohio EPA for review.
VAP MOA Track
MOA means Memorandum of Agreement. The agreement is between U.S. EPA and Ohio EPA. (A copy is available here) Under the agreement if a volunteer agrees to follow additional steps than necessary under the Classic VAP, it can receive "comfort" from the U.S. EPA that it won’t pursue additional cleanup. Those steps include:
- Notice of entry into the VAP MOA program;
- Publish notice in the local newspaper that the volunteer has entered the program;
- Create a document depository in the local library available to the public;
- Volunteer must publish the proposed work plan and allow for public comments (30 day comment period);
- Host a public meeting to discuss the work plan;
- All documents associated with the VAP cleanup must be placed into the library (includes the Phase I, Phase II, Risk Assessment Report, Remediation Work Plan, and the NFA letter); and
- Public can request additional public hearing during the cleanup process.
If a volunteer meets the various requirements outlined above, then U.S. EPA provides the following "comfort"
For sites or facilities that have completed the voluntary action in compliance with the MOA Track procedures…U.S. EPA Region 5 does not plan or anticipate taking action under CERCLA or RCRA while the facility remains in compliance with the MOA Track VAP requirements, except as provided in Section IV.B below.
The highlighted language makes clear that completion of the VAP MOA does not provide the volunteer a legal release from U.S. EPA. Rather, the volunteer gets the assurance that EPA "does not plan or anticipate taking action." Nothing prohibits such action.
In fact, the highlighted language at the end of the paragraph provides several instances when EPA can take action, including:
- Newly discovered information after the CNS is issued indicates additional cleanup is needed;
- Failure to comply with applicable VAP cleanup plans and Ohio EPA fails to take action to correct the situation;
- The site presents an imminent and substantial endangerment to public health or welfare or the environment; and
- Ohio EPA requests EPA help because the volunteer isn’t make sufficient progress to complete the VAP MOA track
How Many Sites Have Gone Through the Classic VAP versus VAP MOA?
Currently, according to Ohio EPA tracking, 556 sites have submitted an NFA for review. Not all of those sites have received a CNS. 29 NFAs were withdrawn before receiving a CNS.
Only a total of 59 sites are identified as having entered the VAP MOA process. Of those 59 sites, 22 sites actually submitted an NFA thus completing the VAP MOA process. (Link to Ohio EPA list of VAP MOA sites)
What these numbers tell you is that very few volunteers have decided to spend the extra time and money to complete the VAP MOA process. Some who even started, later left the MOA process.
Biggest Issue is Time
The biggest issue for many volunteers contemplating the VAP MOA process is the extra time involved. Each plan is available for public comment. A public hearing is required as well. The extra time to complete the added upfront Ohio EPA review and public involvement can add many months on to a project.
A review of the MOA track list shows that most projects took more than one year to complete once they formally entered the program. Some took five or six years to complete. It is unlikely Ohio EPA would allow a project to sit in process that long any more, but the track record clearly demonstrates the added steps will add significant time to the cleanup.
As with many things environmental, whether to go Classic VAP or VAP MOA Track really depends upon your client’s risk tolerance. For some clients, the added comfort from U.S. EPA (even though its not a legal release) is enough.
[Photo courtesy Engineering at Cambridge]