As discussed in my prior post, in September Ohio EPA announced that it would be sending “hundreds of letters” to property owners that have trichloroethylene (TCE) contamination, including property owners that cleaned up their property under the Voluntary Action Program (VAP). At the September meeting of VAP professionals the Agency announced that it could take legal action against property owners with TCE contamination even if the property owner received a Covenant-Not-to-Sue (CNS) under the VAP (i.e. a legal release).
Since the September meeting many in the environmental community have questioned whether the Agency has undermined a cornerstone of the program- the ability to rely on a legal release through a VAP CNS that no additional cleanup would be required. The Agency was careful to state it would not be reopening the CNS to apply the more stringent TCE VAP cleanup standard. The Agency still agrees the VAP CNS locks in the cleanup standards once the CNS is issued (even if standards get more stringent for certain types of contamination based on the more up-to-date science).
The ability to lock in cleanup standards has always been viewed as one of the most significant incentives for submitting a VAP No Further Action (NFA) letter to Ohio EPA to obtain a CNS. Without the ability to rely on the legal release, the VAP would provide very little incentive to make public information about levels of contamination at your property.
While the Agency said it would not reopen a CNS issued under the VAP to apply the more stringent TCE cleanup standard, the Agency also said it has an obligation to protect public health and the environment. The Agency indicated it has separate legal authority, outside the VAP program, to take action at properties it believes present a threat to public health and the environment. The Agency stated it could perform cleanup itself and recover its costs under this separate legal authority if property owners refused to do anything more to address TCE at their sites.
Legal End Around?
While Ohio EPA says it would not reopen VAP covenants to apply more stringent cleanup standards, it said it could use other legal authority to take action to address TCE. Most property owners won’t care which legal authority the Agency utilizes. Most will be upset that they are being told to perform more investigation or cleanup after they thought they had met all their obligations.
Does this the Agency’s recent announcement weaken the VAP program? It certainly diminishes the incentive of entering the program.
For years, many outside attorneys and consulting firms have advocated simply cleaning up the property to VAP standards and obtaining an NFA, but electing not to submit the NFA to Ohio EPA to obtain a CNS. What are the perceived advantages to this approach:
- Meeting VAP standards provides a technical argument that the property does not present a threat to public health or the environment;
- While not a legal release, the Ohio EPA or U.S. EPA would have a much more difficult time taking enforcement against a property that is deemed protective of the public health or the environment (as indicated by issuance of the NFA);
- By not submitting the NFA to Ohio EPA all sampling data can remain confidential. No information will be accessible by the public regarding the condition of the property; and
- By not submitting the NFA, the owner avoids the costs associated with Ohio EPA’s review of a CNS
While there are advantages to not submitting an NFA to obtain a CNS, these must be balanced against the limitations of such an approach:
- The CNS still locks in cleanup standards. Obtaining only an NFA leaves the property open to application of more stringent cleanup standards;
- A CNS still provides a much stronger legal defense against EPA enforcement for cleanup
- A property with a CNS is more easily transferred to a new owner because the property still has a sign-off from the Ohio EPA that the property meets standards;
- Financing is more easily obtained for a property with a CNS versus an NFA; and
- While the VAP is self-implementing, it is very common for VAP Certified Professionals and Ohio EPA to disagree over whether the cleanup was sufficient. Obtaining a VAP CNS provides the assurance the Agency signed off on the cleanup.
This laundry list of pro’s and con’s make this a complex decision for the property owner. The recent announcement regarding notices to property owners holding a CNS with TCE contamination adds another factor to be considered.
The numbers don’t lie, the number of VAP CNS have gone down over the last few years.
|CNS Issued||Review Pending|
|2017 to date||14||2||12|
The cost and complexity of the program results in only a limited number of sites entering the property each year. As has been discussed in prior blog posts, Ohio need to develop more options to address liability from pre-existing contamination to accelerate reuse of brownfields in Ohio.