VAP Rules – 2014 Proposals

VAP Rules – 2014 Proposals

Peter Whitehouse, Assistant ChiefTiffani Kavalec, ACRE ManagerEric Sainey, VAP Lead WorkerDivision of Environmental Response & Revitalization

Web Link

• http://www.epa.state.oh.us/derr/derrrules.aspx

http://www.epa.state.oh.us/derr/derrrules.aspx

Stakeholder Mtg Schedule• November 21, 2013: 1-5pm W.W. Knight Nature Center: Hankison Great Room 29530 White Rd,

Perrysburg Ohio 43551 • December 5, 2013: 1-5pm Nelsonville Library 95 W. Washington Street

Nelsonville, OH 45764-1177

• December 10, 2013: 1-5pm Ohio Peace Officer Training Academy 4055 Highlander Parkway - Suite B Richfield, OH 44286

• December 12, 2013: 1-5pm City of Mason – Public Utilities 3200 Mason-Morrow-Millgrove Road

Mason, OH 45040

• December 17, 2013: 1-5pm Delaware County Board of Elections 2079 U.S. Highway 23, N #4 Delaware, OH 43015

Input Received• Program can be very expensive

• Covenant not to Sue (CNS) process is too slow

• Projects getting audited twice

• How do we change the remedy post CNS

• Will pay more if the process was faster

• Rely more heavily on CPs

• Rules are complicated and can be difficult to follow

• Tax incentives need to be revised – not addressed

OAC 3745-300-01Definitions

Proposed changes for the 5-year rule review

Clarifications and additions to support revisions to other rules

OAC 3745-300-02Eligibility


VAP 5 Year - Rule 02 - Proposals Other BUSTR Sites Eligible for VAP

VAP Rule 2 changed to match statutory changes Rule 3745-300-02(B)(6) incorporates the matching changes

Additional BUSTR sites are eligible if: The volunteer is not a responsible person as determined by

the Fire Marshal (BUSTR); and Voluntary action also addresses hazardous substances or

petroleum not subject to BUSTR corrective action; and The Fire Marshal has not issued an order to address the

release or referred the matter to the Attorney General

VAP 5 Year - Rule 02 - ProposalsSufficient Evidence Demonstration Requirements

In response to an Enforcement Letter, PRPs may submit for review and approval by the Agency, documentation demonstrating that they previously entered into and are proceeding expeditiously in the VAP

Clarifying terms found in Rule 2

“Entry into the VAP” “Proceeding Expeditiously” “Milestones”

• In order to receive an Enforcement Letter from Ohio EPA, our typical process includes:– Gain access from property owner for Phase I;– Perform Phase I and site walkover;

– Review Phase I to determine need for Phase II;

– Gain access from property owner for Phase II;

– Perform field work/sampling;

– Evaluate data;

– Develop Enforcement Letter

– **Exception = RCRA 2020 sites

VAP 5 Year - Rule 02 - Proposals

• Since 1997, VAP has received 15 Sufficient Evidence demonstrations

• Six were denied entry in to the VAP


VAP 5 Year - Rule 02 - ProposalsThe concept, “Entry into the VAP” would be defined to mean……….commencing a voluntary action by:

Completed a Phase I

Retained a CP to conduct the voluntary action

Conducted activities in accordance with the 30 & 60 day submittals

Summary of planned activities Schedule for completion of each milestone in the Phase II Documentation of recent and ongoing activities

VAP 5 Year - Rule 02 - ProposalsThe concept, “Proceeding Expeditiously” would be defined to mean:

Conducting a voluntary action through the achievement of milestones which address the release or threatened release of hazardous substances or petroleum identified in the enforcement letter within a three year period, unless otherwise established by the director. Three year period considerations include: analogous

programs (e.g., COF (30 months))

Addresses the concern of open-ended and unreasonably long schedules for priority enforcement sites

VAP 5 Year - Rule 02 - ProposalsPropose to define “Milestones” to include:

•Assessment of releases or threatened releases of hazardous substances or petroleum identified in the enforcement letter

•Completion of certain Phase II property assessment activities

•Completion of a Phase II report

•Completion of a risk assessment

•Completion of a remedial action plan

•Completion of remedies

•Submittal of a NFA letter to the director


Progress Reports

Currently, progress reports are submitted upon completion of milestones or every 6 months

As proposed, reports would be due every 3 months

VAP 5 Year - Rule 02 - ProposalsProposal for schedule change approval

Currently, reports simply include updates to changes on milestone target and actual completion dates

As proposed, changes to milestone target dates in reports would require an explanation for schedule changes and be subject to Ohio EPA approval


Expeditious Progress (required by current rule)

As proposed, a decision by the Agency to proceed with an enforcement action, based on a lack of expeditious progress, would be expressly prompted by a lack of adherence to the approved schedules included in the progress reports

VAP 5 Year - Rule 02 - ProposalsExpeditious Progress Review / Notice of Enforcement Action

As proposed, rule 2 would require the director to provide written notice of the intent to proceed with an enforcement action (due to lack of expeditious progress)

The Agency’s ability to review and approve schedules / schedule modifications will help ensure that Volunteers address the threats to human health and the environment at these prioritized sites in a expeditious manner


Propose to have Sufficient evidence demonstration reviews invoiced by the Agency through the VAP TA process rather than handled through a cost recover claim

OAC 3745-300-03Fees


VAP Costs – 2012

VAP 5 Year - Rule 03 - Proposals New NFA Template

Modeled new NFA fee assuming documentation would be the size of a Phase I

$3,270-$6,870

Average time to review and process was actually 100 hours x $100.00 per hour = $10,000

Hourly Rate (averages rate $33.52) $ 35.00

Fringe (35.50%) $ 12.43

Overhead Rate $ 53.17

Total Hourly Rate $ 100.60

VAP 5 Year - Rule 03 - Proposals NFA review fees cover:

Review of NFA Letter (Site Coord, GW, Risk, Legal), including O&M, EC, notice of deficiency letters (INOD/FNOD), preparing CNS documents

Tier I Audit (average 13 per year)$130,780 / 36 = @ $3,600

Tier II Audit (average 3 per year)$75,180 / 36 = @ $2,100

NFA Flat Fee = $15,700


Institutional Control 5 Year Inspections (10-15 hours each) Helps cover agency costs for 2 inspections or 10 years worth 25 hours = $2,500

NFA Fee with Environmental Covenant = $18,200 $15,700 + $2,500

NFA = 44 MOA = 24

USD = 9O&M = 49

NFA = 67MOA = 21

TA = 86 PAYGO = 43

IC = 20Audits = 19

TA = 100PAYGO = 28

IC = 47 Audits = 43

USD = 6 O&M = 51

TA = 114 PAYGO = 41

IC = 34 Audits = 43

USD = 2O&M = 79

NFA = 34 MOA = 24

NFA = 36 MOA = 22

TA = 97 PAYGO = 50

IC = 59 Audits = 48

USD = 8O&M = 104

NFA = 35 MOA = 22

TA = 115 PAYGO = 42

IC = 52 Audits = 50

USD = 6O&M = 93

Resources will shift to focus on audits, institutional controls and operation & maintenance oversight – the growing compliance piece of the VAP program

VAP 5 Year - Rule 03 - Proposals PAYGO option would be eliminated

Doesn’t capture costs to run the program (compliance piece)

Current PAYGO projects would be converted to straight VAP TA if NFA is not submitted prior to final rule

June 2014 - estimated

Current review process will remain in effect until final rule NFA PAYGO billing has ranged from $6,243.91 - $57,507.90

Average $16,308.33


Propose removal of Consumer Price Index increase

Fees changed annually

Fees printed in rules were no longer valid confusing

Difficult for CP to estimate future costs

VAP 5 Year - Rule 03 - Proposals• NFA = $15,700

• Increase for Phase I only projects, however it is rare that a Phase I only project would seek a CNS and pay the expense of a CP to develop a NFA Letter

• Banks do not require CNS for financing Phase I only projects

• NFA with Environmental Covenant = $18,200• Decrease for projects that would have had to pay $19,360

• Developers – Time is money

VAP 5 Year - Rule 03 - ProposalsAs discussed in Rule 14 below, VAP Memorandum of Agreement (MOA) sites will undergo significant, up-front review and will be exempted from the Random Audit process – fees are adjusted accordingly:

MOA NFA = $10,000

MOA NFA with Environmental Covenant = $12,500

Another incentive to use the VAP MOA process


Annual fee for Labs reduction from $3,000 to $500.00Approximately five hours:

Review renewal application Generate certification documents Director’s briefing memo Public notice


Certification for additional parameter groups, analytes or methods

Propose change from $500.00 to actual costs billed under technical assistance

OAC 3745-300-04Certified Laboratory


VAP 5 Year - Rule 04 - ProposalsConcern expressed by Certified Laboratories:

Current rule requires that any changes to Standard Operating Procedures (SOPs) and Quality Assurance Manual (QAM) require Agency review and approval, the cost of which is billed back to labs

This is costly and burdensome.


Response: rule proposal for the agency to review only the technical changes to SOPs and QAMs. Administrative and non-substantive changes will not require review/approval

An SOP guidance has been published to help CLs understand which SOP/QAM revisions require agency review and which will not.

VAP 5 Year - Rule 04 - ProposalsConcern: current rule requires audits of mobile labs to occur while they are operating in the field

Response: Change rule to allow audits of mobile labs at headquarters as part of the fixed lab audit

The agency determined that the location where audits are conducted is not critical in evaluating qualifications for certification. This is because the primary audit concern is ensuring laboratory adherence to all SOPs.

OAC 3745-300-05Certified Professional


VAP 5 Year - Rule 05 - ProposalsRenewal Applications:•Issue: Applications have to be submitted 45-90 days prior to expiration to guarantee no lapse. CPs felt this minimized their window for earning PDHUs

•Proposal: Remove automatic renewal language, change so that complete applications submitted prior to expiration date will not result in a certification lapse, even if processed after that date

VAP 5 Year - Rule 05 - ProposalsRenewal Applications:•Issue: If insufficient PDHUs were earned during the certification period, CP seeking renewal was required to submit an initial application - no other options available to make application complete

•Proposal: Add flexibility - allow for a 60 day post expiration (uncertified) grace period during which additional PDHUs can be earned to complete application and qualify for recertification

VAP 5 Year - Rule 05 - ProposalsPDHUs

•Issue: Currently PDHUs can’t be earned by demonstrating knowledge of core topics by instructing them.

•Proposal: Allow PHDU credit for teaching certain core courses that demonstrate required environmental science expertise and that don’t currently qualify for PDHU’s.

OAC 3745-300-06Phase I


VAP 5 Year - Rule 6 - Proposals Phase I

Propose removing requirement for a property boundary survey from the phase I rule

Boundary survey is not needed at this point in the voluntary action

NFA letter rule still retains requirement for a property boundary survey

Needed for no further action letter because it needs to be legally described for covenant not to sue

VAP 5 Year - Rule 6 - Proposals Phase I

Designation of Identified Areas

Propose to clarify rule language related to the process of designating identified areas

Clarify that an identified area is where there is a known or suspected release to environmental media of hazardous substance or petroleum

VAP 5 Year - Rule 6 - Proposals Phase I - Asbestos Survey or Abatement

Propose that the rule explicitly require documentation of asbestos survey and/or abatement activities be included in the Phase I report (if available)

Propose that rule clarify asbestos within buildings is not considered an identified area, unless it has been released to environmental media, e.g. soil outside the building

VAP 5 Year - Rule 6 - Proposals Phase I, cont.

Make records review more consistent with ASTMCurrent rule has two groups for information sources for records review

Property Areas within ½ mile surrounding the property

Propose that information sources for records review be divided into three groups, which is consistent with ASTM

Property only Property and adjoining property Property and surrounding property – minimum distance of ½ mile

from the property


Propose that the de minimis evaluation to be modified to be more consistent with ASTMRely more on professional experiencePropose to remove the sampling requirements from the phase I ruleRetain the four criteria currently in rule to demonstrate de minimis areas:

Releases limited to surficial soil only (no other environmental media), Must be of a small quantity that is not considered a threat to human

health or environment, Releases are not a pattern of mismanagement or disposal, and No more than three de minimis areas per acre


Releases addressed by other programs exempt from being identified areas

Proposal makes rule more consistent with ASTM – similar to ASTM historical REC

Volunteer must be able to demonstrate clean closure under the other program

Release was addressed by other program using most stringent standards (i.e., unrestricted or similar standards)

No institutional or engineering controls were needed under the other program

Proposed that the other programs must fall under BUSTR, Ohio EPA, or US EPA jurisdictionHazardous substances or petroleum from a release, or an exposure pathway, not addressed by the regulatory authority must be considered an identified area


VAP Eligibility Evaluation and Phase I updatesProposed that initial VAP eligibility evaluation be documented in Phase I report

It is proposed that any potential barriers to VAP eligibility would be described in Phase I report

NFA Letter rule will require an updated Phase I report that documents resolution of any VAP eligibility issues

Existing obligations for a CP site walkover and updating of the Phase I report, including resolution of eligibility issues, moved to NFA Letter rule

OAC 3745-300-07Phase II


VAP 5 Year - Rule 07 - ProposalsGeneral

•Proposal for a conceptual site model to be added as part of the data quality objectives–Helps CP direct assessment–Provides clarity to Agency on assessed pathways

•Proposal to remove contour survey requirement–Difficult for agency to validate–$5,000-$7,000 savings to volunteer


•Language modification: releases “on, underlying or emanating from property” to releases “on or from the property”

– Assessment only when complete exposure pathways exist – Remedy only needed if standards are exceeded


•Soil definition under consideration– Specific language still being debated

•Issues/Reasons for definition consideration:– Other media defined– Laboratory analysis problems– Risk issues relative to exposures

•Please review draft red-line definitions when rules are available on-line

– Is a soil definition really needed?– Is it defined adequately?


Assessment/Investigation Issues

•Emphasize that soil assessment must adequately characterize both lateral and vertical extent in Identified Areas

– Already required, just clarifying rule language

•Added language for the determination of representative concentration for the vapor intrusion pathway

– Similar to existing language for soil and groundwater media– Points to Ohio EPA Vapor Intrusion Guidance to determine

exposure point concentrations


Assessment/Investigation Issues

•Streamline terms ‘source,’ ‘source area,’ and ‘release’

– Remove the term ‘source’ globally and retain ‘source area’ and ‘release’

– ‘Source area’ is the location of a known/suspected release

– ‘Release’ is when contaminants migrate to the environment


Ground Water Issues

•New language for identification and characterization of groundwater zones and confining layers– Remove term ‘saturated zones’ throughout the rule as a

result• Reason: Saturated zones may be a clay layer of unimportance• Protection should apply to groundwater zones – not just

‘saturated zones’


Ground Water Issues

•The requirements for all non-potable ground water pathways moved to Rule 07 from Rule 10– Focused Rule 10 on potable issues only

•Ground water pass-through added to Rule 07 as well– Expand to include all media (e.g., VI)– Adds new ‘clean hands’ provision


Ground Water Issues – ‘Clean hands’ provision

Applies if volunteer owns but did not cause or contribute to the up-gradient plume migrating onto the property seeking the NFA letter

BENEFITS: More brownfield properties may be cleaned up and developed by non-responsible parties


Ground Water Issues

•Protection demonstration – weight of evidence

•Add language to require O&M when relying on manmade barrier to inhibit infiltration as part of leaching demonstration– Language already in rule – provides better clarity

VAP 5 Year - Rule 07 - ProposalsRemedy Issues

•Emphasize that a remedy can be implemented and applicable standards need not be derived for an exposure pathway

– Allows for limited assessment and implementation of remedy without a full assessment

– The remedy is the means to show compliance with the applicable standard

– Applicable standards would need to be derived if compliance becomes an issue


Example– Operating facility generates Hg in existing

processes– Historical releases of Hg– Property enters VAP – Difficulty assessing VI pathway• Specifically contribution of past vs. current Hg exposure

to receptors (workers)


Example (cont.)– Volunteer is allowed to install presumptive remedy

• VI barrier – epoxy on floor• Maintained under O&M

– Volunteer identifies that an applicable standard for VI exists and standard is presumed to fail

– Should remedy be removed or breached the standard would need to be calculated and met

VAP 5 Year - Rule 07 - ProposalsPhase II Report

•Phase II report would include a final iteration of the conceptual site model– Will be requested as an attachment to the new NFA

template– Format to be provided in guidance

•Emphasize that Phase II report must be formatted as prescribed by Agency– Sets up use of Phase II template (TBD)

OAC 3745-300-08Generic Standards



Generic Numeric Cleanup Standards

Proposing a new method of constructing Generic Numerical Cleanup Standards:

The proposal is to replace the current ‘Monte Carlo’ method, which is a probabilistic method with a deterministic (point value method)


Generic Standards - mathematical model (algorithm) calculation•Generic standards have historically been generated using a probabilistic method

– program runs 10,000 times, randomly selecting values from the distributions (“10,000” standards are generated)

– The 90th percentile value is selected as the cleanup standard

– The final standard differs slightly between runs (varies a small percentage each time)

VAP 5 Year - Rule 08 - Proposals• Proposal: Use point values instead of the range of

values for modeling inputs– A deterministic method uses one value for each input rather than a

range of values

– Values chosen would be the default US EPA assumptions already used within the RSLs, except:• Construction Worker standards (Do not exist in RSLs); and• Evaluating PEF to be Ohio specific – Particulate Emission Factors

(RSLs default to a western state)

– The method does not use ‘runs’ so there is not the output variation

VAP 5 Year - Rule 08 - Proposals• US EPA Regional Screening Levels (RSLs) default inputs – Consistent with Remedial Response (RR) and RCRA

• In RR & RCRA, RSLs can be used as screening levels in these programs

• VAP would not use RSLs as screening levels, but rather a construct for developing cleanup numbers

– Risk Goal and Hazard Index will remain at 1E-05 and HI of 1

– Generic values for about 330 COCs• current rules list 120 COCs

– Multi-chemical adjustment still required

VAP 5 Year - Rule 08 - ProposalsVAP Generic Standards•The RSLs apply a 2006 EPA Guidance that adds an additional component in assessing early-life exposure to these 20 carcinogens.

AcrylamideBenzidineChromium(VI)Dibromo-3-chloropropane, 1,2-Methylcholanthrene, 3-Methylene Chloride

Methylene-bis(2-chloroaniline), 4,4'-

Nitroso-N-ethylurea, N-Nitroso-N-methylurea, N-

Nitrosodiethylamine, N-Nitrosodimethylamine, N-Benz[a]anthraceneBenzoyl[a]pyreneBenzo[b]fluorantheneBenzo[k]fluorantheneChryseneDibenz[a,h]anthracene

Dimethylbenz(a)anthracene, 7,12-

Indeno[1,2,3-cd]pyreneSafrole

VAP 5 Year - Rule 08 - ProposalsVAP Generic Standards•DERR is proposing to remove this specific component when calculating Generic Standards unless already developed within IRIS

AcrylamideBenzidineChromium(VI)Dibromo-3-chloropropane, 1,2-Methylcholanthrene, 3-Methylene Chloride

Methylene-bis(2-chloroaniline), 4,4'-

Nitroso-N-ethylurea, N-Nitroso-N-methylurea, N-

Nitrosodiethylamine, N-Nitrosodimethylamine, N-Benz[a]anthraceneBenzoyl[a]pyreneBenzo[b]fluorantheneBenzo[k]fluorantheneChryseneDibenz[a,h]anthracene

Dimethylbenz(a)anthracene, 7,12-

Indeno[1,2,3-cd]pyreneSafrole

Urban County Background Numbers

• Cuyahoga County:– Arsenic 24.0 mg/kg

• Franklin County:– Arsenic 20.7 mg/kg

• Hamilton, Montgomery, Summit, & Lucas in progress

VAP 5 Year - Rule 08 - ProposalsGeneric Numeric Cleanup StandardsDeveloped Generic Indoor Air standards for Vapor Intrusion:

Clearer way to address the pathway in conjunction with our Vapor Intrusion guidance

Could save volunteers money by not having to develop or pay the agency to develop property specific cleanup standards

Generic Standards would be available for Residential and Commercial/Industrial land use scenarios


Generic Numeric Cleanup Standards The Support Document for the Development of VAP

Generic Numerical Standards will provide Volunteers with a comprehensive reference for how the Generic Standards have been determined.

This should be available by the end of the year.

VAP 5 Year - Rule 08 - ProposalsGeneric Land Use Definitions

Residential Land Use may be: Unrestricted = Point of Compliance (POC) of 10 ft; or Restricted = less than 10 ft POC

Unrestricted Residential allows for any land use

Restricted Residential allows for any land use with a reduced POC provided the POC is maintained by the Volunteer


Use of “Exposure Unit” concept should be limited to Property Specific risk assessment

Existing rule allows the generic numeric standards to be applied to exposure units:

Too broad Appropriate determinations and use of the “Exposure

Unit” concept only maintained in Rule 9

OAC 3745-300-09Risk Assessment



General

• Clarification to requirements to address impacted sediment – applies to contaminated sediment on the property and to contaminated sediment off the property impacted by releases from the property.

OAC 3745-300-10Ground Water


VAP 5 Year - Rule 10 – ProposalsUrban setting Designation

Eligibility Expanded to include communities , such as a village, that is surrounded by:

• City, or

• Township(s) with populations of twenty thousand or more residents in unincorporated areas, or

• The unincorporated portion of a township that has an average population density of 650 people per square mile in the unincorporated area, or

VAP 5 Year - Rule 10 – Proposals

Urban setting Designation

• A former township that is entirely composed of municipal corporations, or

• An area that is completely surrounded by areas that are otherwise eligible as described above.

All townships in Cuyahoga County are fully incorporated

Includes individual sites within these communities


Urban setting Designation

•More flexibility in defining the USD boundary.

– As always: Professional Survey

– New: Entirety of a city or township (i.e., by plat or charter that legally describes the incorporated boundaries)

– New: Complete and adjacent parcels

• Caveat: Any USD boundary that cuts across parcel boundaries must be surveyed.


Urban setting Designation Application

Added: •Files or documents designating the defined boundary must be submitted in a manner prescribed by the Agency

• Generally related to electronic submissions

VAP 5 Year – Rule 10 - Proposals

• Rule 10 will only address potable pathway

– All non-potable and ecological receptors would be addressed through the Phase II rule


Point of Compliance Changes for GW

•Change the point of compliance for potable use for some situations commonly occurring at VAP properties

•These situations are still protective of human health and the environment

RESULT: Variance or case-by case not needed in these situations.


Point of Compliance Changes

•Property adjacent to transportation corridor

•GW discharging to surface water in close proximity (not necessarily adjacent) and GW not likely to be used for potable purposes

• Down-gradient edge of transportation corridor

• Surface water boundary, and surface water standards apply

Situation Potable Use POC


Point of Compliance Changes

•Adjacent, down-gradient property has an Environmental Covenant

•Property boundary bisects a landfill

• Down-gradient edge of adjacent property

• Down-gradient edge of the lateral extent of the waste in the landfill

Situation Potable Use POC

VAP 5 Year - Rule 10 – ProposalsPass-Through Provision

Pass-through provision applies to potable pathways if volunteer owns but did not cause or contribute to the up-gradient plume migrating onto the property seeking the NFA letter (same ‘Clean Hands’ reference as in the Phase II rule)

REMINDER - All pass-through provisions for non-potable pathways and other media (e.g., vapor intrusion) are now in Rule 7


Provision for Protecting GW that Meets UPUS

•Clarification was added to both Rule 10 and Rule 7 that if the contamination is due to an off-property plume and the Volunteer is not associated with releases or source areas creating the plume, then they do not have to show protection to lower zones from the plume

OAC 3745-300-11 Remedy Rule

VAP 5 Year - Rule 11 - ProposalsIssue: Complete pathways to off property receptors may be beyond a volunteer’s control to address with a remedy Proposal: For contamination that HAS EMANTED from the property to an OFF PROPERTY receptor, if the volunteer can demonstrate that they were unable to implement a remedy despite “best efforts”, the pathway can be omitted from the voluntary action.


Pathway Omission - What constitutes “Best Efforts”?Propose a “Best Efforts” application and verification process; developed and handled in similar mannerto a USD application. Applyprior to NFA submittal.

VAP 5 Year - Rule 11 - ProposalsIf you are able to show Best Efforts:•This is not a variance – the pathway would not be remedied, but omitted from the voluntary action.

•The CNS would be conditioned to reflect that there is no liability release for this pathway.

•Most useful when off-site access is the issue.

•Allows volunteers to proceed in situations they might now be stuck.

VAP 5 Year - Rule 11 - ProposalsExample: contaminated groundwater has emanated to a neighboring property; that owner refuses access and continues potable use of contaminated GW. The volunteer is required to, but cannot, remedy that pathway.

Demonstration: Volunteer‘s attempts to contact the neighbor, inform him of the situation, and resolve access issues and remedy the pathway are robust and documented, as is the neighbor’s refusal.

VAP 5 Year - Rule 11 - ProposalsClarify: Remedy Construction, Remedy completion and

Achieving applicable standards (AS)

Clarify that remedies must be constructed prior to the NFA letter, but may achieve AS after the CNS

Clarify that the “five years or other time frame” includes the verification time (e.g. 8 quarters of ground water confirmation sampling)• Three years to perform remedy; two years to verify

remedy worked

VAP 5 Year - Rule 11 - ProposalsPropose to make clear that achieving remedy completion in O&M is ok, but this is defined as when AS are achieved, not when remedy construction is complete

Clarifications include replacing {remedy must be} “complete” with “…achieve applicable standards, inclusive of verification…”


Handling of Risk Mitigation Plans

Propose to remove the option of including an RMP within an O&M plan

RMPs should be stand alone documents so compliance can be more easily tracked and reported.

Eliminated confusion when O&M sunsets but risk mitigation must live on.

VAP 5 Year - Rule 11 - ProposalsInterim measures – are needed when a permanent remedy is in place, but has not yet achieved AS.

Propose: language clarifications to make clear circumstances under which interim measures

are needed


Propose: Adding a section covering groundwater use restrictions as applied to zones at different depths beneath the property. Such restrictions:

Should be recorded in an EC,May allow selective use of lower zones,Must be protective of uncontaminated zones


Remove elevation survey requirement– Difficult for the agency to validate– Often an unnecessary expense– Of limited practical usefulness largely because it’s

fixed in time and property dynamics change


Operation and Maintenance Plan proposals:Remove the elevation survey requirement

Remove/simplify elements of the anticipated problems and contingency solutions section

Harmonize rules and templateRemove some duplicative/ confusing language

VAP 5 Year - Rule 11 - ProposalsPost CNS - BasicsVolunteers are free to change the remedies relied upon to meet Applicable Standards, so long as:

The property remains in compliance with existing O&M plans and ECs until they are formally replaced.

The property remains in compliance with Applicable Standards at all times.

Post CNS Remedy Changes

• Completely new section of the rule.

VAP 5 Year - Rule 11 - ProposalsPost CNS Remedy ChangesVolunteers are not required to secure DIR approval for remedy changes. Volunteers are, as always, free to handle their property as they see fit

However, this new process can provide the volunteer comfort that the CNS remains effective, i.e., that the property will continue to comply with applicable standards after the remedy change.

VAP 5 Year - Rule 11 - ProposalsPost CNS Remedy changes:In order to ensure that the CNS remains in good standing, the volunteer can alert the DIR to a remedy change with a Remedy Revision Notice.

Note: Remedy modifications or enhancements done in accordance with an O&M plan do NOT require a Remedy Revision Notice.

VAP 5 Year - Rule 11 - ProposalsThe proposed rule will specify the contents of the Remedy Revision Notice:

Description of the revised remedyStatement from the CP that the property complies with AS under revised remedy

Information relied upon by CP to make the determination

New or revised O&M, as applicable

New or revised EC, as applicable

VAP 5 Year - Rule 11 - ProposalsAcknowledgement v. ApprovalThe Remedy Revision Notice will be accompanied by a request for either Remedy revision acknowledgement, or remedy revision approval

The volunteer can request that the Agency simply acknowledge the revision; no review but the Agency would consider these sites for a compliance audit

The Volunteer can request that the Agency review and approve the revised remedy.


Remedy Revision Approval would give the volunteer comfort as to the adequacy of their revised remedy up front, no audit expectations.

To secure the approval, the volunteer would be required to establish a TA account to cover the costs of Ohio EPA review.


Remedy Revision Acknowledgement would not trigger an Agency review of the revised remedy.

No TA account need be established, UNLESS the revised remedy requires the development of new OMA/O&M or EC documents.


Regarding land use changes…The proposed rule would expect a New NFA for a land use change from Commercial/Industrial to residential in most situations.

A new NFA may not be required if the original NFA Letter already supported a residential land use– Would need a Remedy Revision Notice to update E.C.

VAP 5 Year - Rule 11 - ProposalsExample

Developer originally secured a CNS for a large parcel, only half of which was developed at that time of the CNS.

Property has a direct contact complete pathway – this was addressed by buildings and parking lots in the developed portion, and fenced off in the undeveloped portion.

An O&M plan was developed to maintain both the buildings/parking lot and fence engineering controls.

VAP 5 Year - Rule 11 - ProposalsRemedy Revision PlanVolunteer now wants to build on the undeveloped portion of the property.

The fence must be maintained in accordance with the O&M plan at all times.

The portion of the property within the fence can be developed with buildings and pavement, as the front portion has been.

VAP 5 Year - Rule 11 - ProposalsProposed Remedy Revision ProcedureThe volunteer can submit a Remedy Revision Notice to Ohio EPA, along with a draft O&M plan for the new buildings and pavement on the back half

The volunteer can chose to seek either a Remedy Acknowledgement, or a Remedy Approval

The Remedy Revision Notice will contain information specific to this remedy (template to be developed)

VAP 5 Year - Rule 11 - ProposalsProposed Remedy Revision Procedure

If the volunteer seeks Remedy Acknowledgement, DERR will file the notice and enter into (or modify) an OMA for the OMP

Any new or modified OMA or OMP would require TA Always subject to compliance audit

If the volunteer seeks Remedy Approval, the Agency will review the entire submittal under TA.


• Remedy approval under TA will mean the revised remedy has been reviewed

• This costs more, but our discussions with developers have made it clear that some volunteers will want the certainty.

VAP 5 Year - Rule 11 - ProposalsAlternative ScenarioIn an alternative, the volunteer might want to eliminate their O&M Plan obligations on the undeveloped section.

A dig and haul to remove soil above direct contact standards would accomplish this.

The fence could then be removed and O&M Plan obligations for the fence eliminated.

OAC 3745-300-12Variances / Case by Case


VAP 5 Year - Rule 12- Proposals

Variances (existing)

Case-by-Case Determinations (new)

Fees (change)

Withdrawals (new)

Examples of variance and case-by-case situations.


The overall purpose of Rule 12, Variances and the proposed changes is to provide volunteers flexibility to address technical issues in certain situations

We will propose to completely replace the existing rule. It was easier to completely rewrite it be more understandable and easier to follow.


Variances – Authority and Scope

In existing rule. Authority under ORC 3746.09

A variance can only vary or change an applicable standard (i.e. soil generic standards, UPUS, VI and other risk-based standards) and replaces it with another standard.Applies to all media.


Variances – Approval Criteria

Technically infeasible to comply with applicable standard, or costs exceed economic benefit; and

Alternate standard improves environmental conditions and protects public health and safety; and

Alternate standard promotes or preserves employment opportunities


Case-by-Case groundwater rule

Authority under ORC 3746.04(B)(12) to develop this rule; has never been exercised.

By statute, it renders a generic numeric or risk derived ground water standard inapplicable to a property. It does not apply to other media or standards.

VAP 5 Year - Rule 12 - ProposalsCase-by-Case – Approval Criteria

What makes sense for this property?Rendering the ground water standard inapplicable must still ensure that public health and safety is and will continue to be protected. An alternate standard or special site-specific terms will be proposed and/or imposed to meet this criteria

Director must consider public comments.

ComparisonVariance (existing rule) Case-by-Case (new)Applies to any applicable standard (i.e. soil, GW, SW, sediment, VI).

Only applies to ground water standards.

Varies an existing standard and replaces it with an alternate standard.

Renders a ground water standard inapplicable. An alternate standard or conditions will be proposed.

Criteria – technically infeasible, economic benefits, protective of public health and safety, employment opportunities and must consider public comments.

Criteria – what makes sense for this property? must ensure public health and safety is and will continue to be protected, and must consider public comments.

VAP 5 Year - Rule 12 - ProposalsApplication Process (existing rule)

Variance and case-by-case processes are nearly identical

Name of applicant, CP, CL, property description, applicable standard, proposed alternate standards, Phase I info, Phase II info, adjacent property owners, and demonstration meeting approval criteria.

Forms will be developed for consistency


Application review process (existing rule)

Director determines complete application; may request additional information, sets up public meeting and notice, issues proposed action (approval/denial), issues final action


Application review process (existing rule)

Must be approved before issuance of an NFA Letter that relies upon the new standard.

Approval time of 6-8 months, minimum. This is based on the extensive and detailed public process outlined in statute

May take longer depending on complexity of technical review


Proposed Administrative fee (change)

New fee applies to both variance and case-by-case applications

Old flat fee = $26,120 for a variance

New = actual costs incurred as part of a technical assistance account


Application withdrawal option (new)

Withdrawal applies to both variance and case-by-case applications

Applicant may request to withdraw at anytime prior to a final action by the director (approval/denial)

Any costs incurred to that point are non-refundable


Variance example

Brownfield property with contaminated soil and ground water. Property not eligible for a USD

TCE is migrating off-property above UPUS at 127 µg/L

Ground water is Class A

Down-gradient receptors include commercial and residential properties


Variance example (continued)

Contaminated soil excavated

(2) Rounds of in-situ chemical oxidation performed on ground water

Off-property wells and soil-gas probes

(4) Rounds of post-remedy ground water sampling


Variance example (continued)We find that TCE in ground water significantly reduced (to 8 µg/L) but still exceeds UPUS at the property line.

We have determined that on and off-property vapor intrusion pathways are incomplete.

Community is on municipal water.

Additional remedial actions are not expected to yield additional reduction in TCE at property line.

VAP 5 Year - Rule 12 - ProposalsVariance example (continued)

Volunteer can seek a variance.Prior to issuance of an NFA Letter, a request for a variance from the TCE standard at the property line on the basis of technical infeasibility (UPUS = 5 µg/L).

Public hearings and comment taken prior to director issuing variance.

Alternate standard of 8 µg/L sought.

VAP 5 Year - Rule 12 - ProposalsVariance example (continued)

Threshold Criteria – if all are met…

Additional reduction in TCE levels is not technically feasible (or is not cost effective).Current and reasonably anticipated receptors are protected.Issuance of a CNS will enhance reuse of the property THEN:


Case-by-case groundwater exampleBrownfield that contains an unregulated landfill

Landfill is known to contain hazardous substances at depths in contact with upper ground water zone

Ground water sampled near the landfill in the upper zone meets UPUS, so

Protection requirements apply to the upper ground water zone


LANDFILLMW

MW

Sand Aquifer

Clay Layer

Bedrock


Case-by-case example –situation:Landfill leachate is in direct communication and part of the upper zoneIt is not practical to excavate the landfillNo potable use of the ground water in the upper zoneA USD does not relieve the requirement to protect a clean ground water zone


Case-by-case example (continued)ORC 3746.06 states that if ground water under a property meets “residential use” standards, the voluntary action must ensure compliance with those standards into the future (i.e. POGWMUPUS)

For this landfill scenario where ground water meets UPUS, making this demonstration may be difficult, and the existing VAP tools can’t help

VAP 5 Year - Rule 12 - ProposalsCase-by-case example (continued)It makes little sense to protect this gw zone.Prior to issuance of an NFA Letter, the volunteer requests a case-by-case determination to render the “residential use” standard of POGWMUPUS inapplicable to the property given the circumstances.

Must go through public hearing and comment.

Non-potable pathways must still be evaluated.

Potable ground water use restriction.

VAP 5 Year - Rule 12 - ProposalsCase-by-case example (continued)The groundwater standards is replaced by new standards or conditions that makes sense for this specific set of circumstances.Public hearing and comment were considered.

All other pathways were evaluated and found protective.

Potable ground water use restriction required to ensure protectiveness going forward.New standards/requirements approved.

OAC 3745-300-13NFA Submittal



Changes made to match a new NFA format and process

Ohio EPA would review the NFA Letter only (handout)

Submittal of supporting documentation after CNS issuance

VAP 5 Year - Rule 13 – ProposalsNew Process

Submit NFA Letter with request for a CNSSummary pages, Executive Summary, O&M Plan & Agreement,

and draft Environmental Covenant (EC)

There will still be an INOD (plus CP call), and FNOD process to correct deficiencies and finalize O&M and EC docs

Technical Assistance (TA) still available prior to NFA submittal


Administrative Information Similar to current Form A

Specific Affidavits All other affidavits not required submitted after CNS

issuance

Letters from Volunteer, CP requesting NFA Letter submittal for CNS

VAP 5 Year - Rule 13 – ProposalsNFA Letter Statutory Elements:

A – Is the property eligible?B – Has a risk assessment been performed?C – Identify any person who performed work in support of the NFA LetterD – List of all data, records and information relied upon

*Phase I, Phase II, Lab rpt dates, etc

E – Summary of the Voluntary Action*Includes executive summary - expanded template

VAP 5 Year - Rule 13 – Proposals Filing documents for deed records:

Executive SummaryLegal descriptionProperty MapEnvironmental Covenant(no longer filing O&M Agreements or RMP)

–Attempt to reduce need to re-file in Deed Records when O&Ms or RMPs change over time

–Cuts down on recording costs

–Notice to new property owners

VAP 5 Year - Rule 13 – Proposals Once the CNS is issued, the volunteer would then

submit all supporting documentation for agency files and use in audits Phase I report, Phase II report, etc

Addition of NFA Letter withdrawal option language

OAC 3745-300-14Audits



Audits of NFA Letters

•Elimination of the mandatory and priority audit pools titles

•Creation of discretionary audit pool language

•Inclusion of compliance audits in rule

•Exempt MOA track properties from the random audit pool

•Creation of a VAP audit committee

Elimination of Mandatory and Priority Audit Pools

NFA letters submitted the previous calendar year would be eligible for an audit through the random audit selection process or from a discretionary audit selection process

Discretionary audits:

Flagged during NFA review by Site Coord, Risk, GW, Legal

Screened by an audit committee before moving forward


Compliance AuditsAll NFA Letters are subject to a compliance audit if compliance issues arise with applicable standards

Would be screened by a VAP audit committee to determine if an audit is really warrantedAgency would only audit certain components of the NFA rather than its entirety

e.g., suspected vapor intrusion failure

Always had authority to perform discretionary and compliance audits - proposed changes would formalize the rule definitions


NFAs participating in the MOA track will be exempt from the random audit pool

NFAs that participate in the MOA track are already thoroughly reviewed prior to issuance of the NFA letter, closely along the lines of an audit

This is beneficial, as it saves time and money for the Agency, and it will ease concerns for volunteers and CPs in regard to being randomly selected for audit


Creation of the VAP Audit Committee

The committee will determine which NFA letters will be selected for discretionary audit and also evaluate whether or not a potential compliance issue warrants a compliance audit.

The committee will make these selections based off of defined selection criteria


Random Audit Pool – Divided into two groups: group A with a remedy and

group B without a remedy

Randomly select NFA letters from

groups A & B

NFA letters that requested NFA letters that requested a CNS during the previous a CNS during the previous

calendar yearcalendar year

Discretionary Audit Pool

--- CNS Compliance Audits ---NFA letters with CNS compliance

related issues (any NFA letter with a CNS – usually issue

specific)

Conduct audits of Conduct audits of 25%25% of the of the previous year’s NFA letters from previous year’s NFA letters from the Random and Discretionary the Random and Discretionary

Audit PoolsAudit Pools

Yes

No

MOA NFAs with risk assessment or remedy

Did the NFA letter property participate in

the MOA track?

VAP Audit Committee: Selects NFA letters for audit based on selection criteria

Not Selected

Selected

VAP 5 year – Rule 14 - Proposals

VAP Rules – 2014 Proposals

Documents

Transcript of VAP Rules – 2014 Proposals