Ohio EPA is in the process of performing their scheduled 5-year review of the Voluntary Action Program (VAP) rules. The proposed rules are currently available for Interested Party Review, with comments due by close of business, May 29, 2019. The majority of changes are to clean up language and make them more readable, although there are other notable changes that emphasize the importance of complying with institutional controls at VAP properties.
The rule definitions have been updated to include central management entities and land uses. As the VAP program has matured over the last couple of decades, engineering and institutional controls have become commonplace to manage the cost of remediation versus cleanup to unrestricted standards. While the concept of different land uses and exposure scenarios is nothing new, moving their definitions into Rule 1 emphasizes the importance of understanding their nuances and ensuring appropriate mechanisms and entities are in place to prevent inadvertent violation of the restrictions. In the VAP, using a property for an unapproved use, such as hosting a daycare on a portion of an industrial property, can quickly lead to the voidance of a Covenant Not to Sue. Additional land uses are now included in the rule, and defined land uses now include:
Of the defined land uses, “commercial land use with high frequency child exposure” and “recreational land use” were not previously discussed in the rules. The former may allow more flexibility for commercial properties where daycares or schools may be built (such as strip malls), while the recreational land use will require a site-specific risk assessment but could promote development of ball fields and wildlife areas where child exposures tend to be infrequent and shorter in duration.
The definition of “imminent hazard” has been modified to specifically reference risk from volatilization of chemicals from environmental media into occupied structures at acute health levels. This is consistent with agency efforts over the last few years to identify and assess vapor intrusion threats related to trichloroethylene.
Included in the draft rules is an option for laboratories to receive VAP certification based upon their NELAP accreditation. This has the potential to simplify certification for laboratories, and reduce a potential lag time for updates to laboratory SOPs receiving VAP approval.
Rule language relative to Phase I assessments has been modified to be more similar to All Appropriate Inquiry and ASTM E1527 requirements, although the VAP Phase I process remains more extensive than a standard due-diligence assessment.
The VAP rules now include generic cleanup standards for sediment, in addition to soil, groundwater and air. This helps to simplify evaluation of risk to ecological receptors.
Additional chemicals of concern have been added for petroleum, including lead scavengers for gasoline used prior to 1996. This brings the VAP rules in line with the most recent Ohio UST (BUSTR) rule revisions.
If you are considering entering a property in the VAP, or looking for assistance in ensuring continued compliance of a property that has already gone through VAP, contact us. Cox-Colvin has extensive experience with brownfields and the VAP. We regularly work with clients who are considering purchase of VAP properties to define the impact and cost of use restrictions on their redevelopment plans.
Nate Wanner is a Cox-Colvin Senior Scientist with over 15 years of experience leading and completing environmental projects, in addition to six years as an educator and IT director. He holds a BS in Geology: Water Resources from Ohio University and a Masters in Geographic Information Systems from Penn State University. His areas of expertise include brownfields, underground storage tanks, due diligence and database services. Nate is an Ohio EPA VAP Certified Professional (CP), a Certified Professional Geologist (CPG) with the American Institute of Professional Geologists (AIPG) and is a registered Professional Geologist (PG) in Kentucky.