Ohio EPA has established its own voluntary cleanup program for addressing hazardous substances and obtaining a legal release from liability- the Voluntary Action Program (VAP). The VAP program has been on the books since 1995.
When the VAP was created its purpose was to allow the private sector to address historical contamination at industrial or
The Kasich Administration has decided that it wants to put the legal challenges to JobsOhio to rest once and for all. Through legal maneuvering the Administration has put the ultimate question- is JobsOhio constitutional- before the Ohio Supreme Court. At issue is whether transfer of liquor profits to JobsOhio violates the Ohio Constitutional prohibition on
The contractual language appearing in purchase or lease agreements for industrial property is critical. I have seen a number of contracts that were fraught with vague terms or even silent on liability allocation. Those contracts now define the company’s liability exposure. Protections the company thought they may have are either non-existent or in question.
That is why it is
Are you performing a Voluntary Action Program Clean Up?
Are you cleaning up contamination for a release from a petroleum underground storage tank (BUSTR)?
If you answered yes to either of these questions you may qualify for a significant federal tax incentive which allows you to deduct the clean up costs incurred this year as well as years past. Under the tax incentive, certain
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The State has announced the latest modifications to the Clean Ohio Assistance Fund (COAF) policies which provides up to $300,000 for Phase II environmental assessments and up to $750,000 for brownfield clean up. The State released its COAF policy update last month.
Unlike the Clean Ohio Revitalization Fund (CORF), COAF grants are given out on a rolling basis
The Ohio Department of Development working with the Ohio Water Development Authority (OWDA) has released their policies for use of the revamped low interest brownfield loan program. Under the program, private companies (among others) can get a low interest loan up to $500,000 for performing sampling (assessment) and up to $5 million for clean up.
As discussed
On April 5th, Ohio EPA Director Nally testified on the Agency’s proposed budget before the House Finance and Appropriations – Agriculture and Natural Resources Subcommittee. According to the Director’s Testimony, Ohio EPA is not asking for any fee increases. Ohio EPA’s proposed budget calls for a reduction of 11.8% for fiscal year 2012 and 13.8%
In 1994, the State created the Voluntary Action Program (VAP) to promote voluntary clean up of industrial and commercial sites, including those currently utilized as well as brownfields.
By 1994 standards the VAP program was cutting edge. It utilized certified professionals (CPs) who performed the investigation and implemented clean ups to meet standards established by
Phase I environmental assessments have become the norm in virtually any commercial or industrial property transaction. Almost any financial institution will require a Phase I report prior to agreeing to finance a transaction.
In this regard, Phase I’s have become a commodity- A box that needs to checked off before a deal can go through. But buyer beware, beyond securing your financing you may not truly know the condition of your property. Or even worse, you may not secure the legal protections from environmental liability you intended by procuring your Phase I.
A recent U.S. EPA study evaluated the quality of 35 Phase I reports that were performed on brownfields in connection with federal grant funding. The Phase I reports were evaluated against basic requirements necessary to secure protections under the "All Appropriate Inquiries Rules (AAI)" (a shield from CERCLA liability for innocent purchasers).
"All Appropriate Inquiries"
Under federal law, in order to establish a shield from liability under CERCLA, a purchaser must, prior to the date of acquisition, perform "all appropriate inquiries" into ownership and uses of the property. In 2005, U.S. EPA finalized its rule establishing mandatory standards for conducting AAI to secure liability protection.
IG Evaluates 35 Phase I’s
In the study, the Inspector General evaluated the 35 Phase I reports to see if they met the required elements of the AAI rule. Not one of the reports met the U.S. EPA required elements (or alternative ASTM standard). Worse yet, the missing components were simply formalistic elements necessary for a Phase I to meet U.S. EPA standards. They did not evaluate the professional judgments in the reports which would be more prone to varying opinion. Aspects evaluated included:
In the opinion of the Inspector General, not a single one of the 35 reports evaluated adhered to all of the requirements set forth above.
The report is another example of the risks associated with hiring an environmental consultant to perform a Phase I. From my discussions banks don’t often evaluate the quality of the consultant or even whether the report meets the ASTM or EPA rule requirements.
What are the risks to the future property owners in the transaction? The Inspector General summarized the risks as follows:
Improper AAI investigations introduce risk that the environmental conditions of a property have not been properly or adequately assessed. Consequently, decisions about appropriate uses of redeveloped or reused brownfields properties may be based on improper assessments. Ultimately, threats to human health and the environment could go unrecognized.
Beyond the risks of the unknown conditions, you also could be jeopardizing the legal protections available under the AAI rule. The rule is very specific in mandating an ASTM or EPA regulatory compliant Phase I assessment before the legal liability protections kick in. Years later, when an issue arises, you may find you have no shield from liability due to an inadequate Phase I.
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Continue Reading Questions Persist Regarding the Quality of Environmental Assessment
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The Governor’s top legislative priority is the privatization of the State’s economic development functions. House Bill 1, known as "JobsOhio", has been introduced and a vote in the Senate may come yet this week.
The Ohio Department of Development (ODOD) plays a critical role in the administration of the Clean Ohio program which provides millions in