Ohio EPA is moving forward with substantial changes to the rules for the Voluntary Action Program (VAP) which governs the procedures and standards for voluntary cleanup of industrial sites and brownfields. The Agency provided an overview of the changes and its response to public comments last week at the Ohio Brownfields Conference in Columbus.
The Agency describes the changes as mostly providing greater clarity or trying to streamline the processes. However, many of the changes are significant. Some of the more significant changes are discussed in this post.
Note: A detailed overview by Ohio EPA of the proposed rule changes can be accessed here.
Process Changes- Faster Turnaround but Greater Risk of Surprises
Under the current VAP process, when the volunteer is ready to seek concurrence that the property meets VAP standards, they request their consultant submit a No Further Action Letter (NFA). Under current process, the consultant must submit the NFA along with all of the supporting documentation. This includes the Phase I property assessment, Phase II property assessment as well as any risk assessment work. The supporting documentation can be hundreds, if not thousands of pages.
Under the proposed change, a volunteer would submit just the NFA letter (the executive summary of the Phase I and Phase II, operation & maintenance documentation and draft environmental covenant). After the covenant-not-sue (CNS) is issued, the Volunteer would be required to file the supporting documentation.
While the supporting documentation must be submitted, the Agency would not review it immediately. Rather, the documentation would be maintained in Ohio EPA’s public files.
Through this process change, the Agency is trying to speed up their review process by reducing the amount of paperwork that must be reviewed prior to issuance of a CNS. Less review means faster turnaround. This is good news for developers whose projects or transactions were slowed waiting for the CNS to be issued.
However, as with everything, there are trade offs. Ohio EPA is also going to revise its audit protocols. A VAP audit is similar to a tax audit. Under a VAP audit, the project is thoroughly reviewed by Ohio EPA, including the NFA and all supporting documentation. The probability of an audit is highest after the first year the CNS is issued, but can occur anytime. Under the process change, Ohio EPA proposes to increases the frequency of its audits.
If through the audit, Ohio EPA identifies issues with the investigation or cleanup, a notice is sent to the volunteer. If those issues are not addressed, the volunteer could lose their CNS.
One outcome of this process change may be more surprises for property owners after they thought a project was finished. For example, two years after the CNS is issued, Ohio EPA could audit the project, find deficiencies and require more investigation and/or cleanup. This may come as a major surprise to a new owner who bought the property after the CNS was issued.
Revised Generic Cleanup Standards
The VAP rule change also proposes a major overhaul to the methodology for calculating VAP generic cleanup standards. Ohio EPA is moving toward use of U.S. EPA Regional Screening Levels.
In some cases the standards get more stringent and in other cases more lax. At the Brownfield Conference, Ohio EPA stated the only dramatic change is to the cleanup value for trichloroethylene (TCE). At the conference, the Ohio EPA stated it notified all sites it was aware were currently performing a VAP cleanup where TCE was a constituent of concern of the proposed change.
In order to have the current generic cleanup standards apply to your VAP cleanup, then the volunteer must submit a NFA to the Agency before the rules are finalized.
Urban Setting Designations- Expanded Use
Urban Setting Designations (USDs) are an important tool under the VAP. Cleanup of contaminated groundwater can often be the most costly portion of the cleanup. Ohio EPA recognized that there may be little benefit to requiring cleanup of contaminated groundwater in urban areas where the population was served by public drinking water systems.
Requiring cleanup of groundwater in those situations may result in avoidance of brownfield properties. With a USD designation, a volunteer can avoid a costly cleanup of contaminated groundwater.
Under the proposed VAP rule changes, Ohio EPA is proposing to expand the eligibility of areas for USDs. For example, a village that meets certain geographic requirements can request a USD.
Off-Property Cleanup Requirements
An area of uncertainty under the VAP program had been what cleanup requirements apply to contamination that may have already left the volunteer’s property. Under the proposed rule, Ohio EPA states it is clarifying the obligations to address off-property releases.
Ohio EPA states a volunteer is required, even under current VAP rules, to cleanup off-property releases of contamination that exceed VAP standards. Under the proposed rule change, this requirement is being made explicit. This may be viewed by some as a major program change.
The proposal does include new provisions to provide some flexibility in addressing off-property releases. A volunteer can attempt to make a demonstration to Ohio EPA that it "used best efforts" to address the release, but something made it impossible or impractical. Examples:
If a neighboring property owner uses a drinking water well and refuses access to his property to address the contamination, this may be grounds for an exemption from Ohio EPA.
A release from the property contaminates sediment in adjacent river that exceeds applicable standards. The volunteer would need to address the sediment unless it can demonstrate it is contaminated from multiple sources.
However, it is important to note, if an exemption to address a off-property pathway is granted, the CNS (legal release) will not extend to that pathway (i.e. the volunteer could be required to clean it up in the future if circumstances change).
When a Property Must Meet VAP Standards
The proposed rule changes intend to clarify that a volunteer only has to construct the remedy prior to issuance of the CNS, so long as he/she demonstrates the property will meet VAP standards within five years (or some other time agreed to by Ohio EPA). This allows flexibility where remedy involves ongoing treatment.
Post CNS Changes to Remedy
The proposal also establishes a process for modification of a remedy post-CNS.
- For example, if institutional controls (ex: fence or protective barrier) is used to demonstrate the property meets standards, the Volunteer can remove those controls without the property losing its CNS status during implementation of the new remedy.
Sufficient Evidence- VAP Eligibility Post-Enforcement
A volunteer is eligible for the VAP until it receives notice of enforcement from Ohio EPA. If a volunteer had initiated a VAP cleanup prior to receiving notice of enforcement, the volunteer can continue if it makes a so-called "sufficient evidence demonstration."
The proposed rule changes clarify what must be demonstrated and how quickly the cleanup must be completed in order to avoid enforcement. Under the rules, the volunteer must demonstrate initially that they
- Completed a Phase I assessment;
- Retained a VAP certified professional;
- Developed a schedule of activities for completing the VAP
If the volunteer is deemed to have satisfied sufficient evidence, it must adhere to the schedule and complete the VAP cleanup within three years under the proposed changes.
Ohio EPA indicated the final rules would be filed with JCARR on April 15th. JCARR jurisdiction would end on June 16th, with the final effective date being no sooner than July 1st.
However, this assumes that significant objections are not raised during the JCARR process. If such objections are made, the Agency could be forced to pull the rules resulting in delays.