Ohio EPA Voluntary Action Program Update

22 September 2014 Dashboard Insights Blog

The following post is provided by our guest author, Graham Crockford from TRC Environmental Corporation. Graham can be reached at gcrockford@trcsolutions.com

Many of our Ohio based automotive suppliers with retained environmental liability are performing soil and groundwater cleanups using the Ohio Voluntary Action Program (VAP). My colleagues and I thought it would be timely to describe the August 1, 2014 Ohio EPA rules for the VAP program and how these rules intend to clarify certain ambiguities regarding investigation and remedial coverage relative to on and off-property areas. Although requirements for certain situations have been made explicit, some ambiguities remain that are subject to interpretation by Certified Professionals (CPs) and Ohio EPA. The new rules streamline the No Further Action (NFA) submittal process and a Covenant Not to Sue (CNS) is issued following an Ohio EPA administrative review and finalization of remedy documents. Complete technical review of the NFA by Ohio EPA does not occur until the post-CNS audit stage, where agency findings may result in further action being required to avoid revocation of the CNS. Obtaining VAP technical assistance from Ohio EPA prior to NFA submittal is recommended to resolve potentially ambiguous issues prior to them being identified by Ohio EPA during the audit process.

Is there now an obligation to sample off property?

The VAP Phase II investigation rule requires determination of potential receptor exposure to constituents of concern (COCs) from the VAP property through ground water migration, surface water migration, dust emissions, volatilization, and other mechanisms which may transport COCs off the property. The means of making this determination is up to the CP and may include off-property sampling and/or other appropriate means specified in the rule, depending on site conditions and the Conceptual Site Model (CSM). If off-property exposure pathways are deemed potentially complete, then off-property sampling may be required.

A Conceptual Site Model is now required formally as part of the VAP Phase II report

The final CSM must determine exposure scenarios that identify the environmental media, COCs, current and reasonably anticipated future land use and receptor populations, and a determination of exposure pathway completeness. The working CSM should also give consideration to appropriate assessment and sampling relative to source areas, identified areas, and exposure units based on current and future land use conditions at the property.

Points of Compliance for ground water may extend off property

The updated Ground Water rule identifies Points of Compliance for ground water that may be selected as an alternative to the property boundary in the following circumstances:

  • Within an Urban Setting Designation (previously available)
  • Near a surface water discharge boundary (new)
  • Adjacent to a transportation corridor (new)
  • Adjacent to a property with an environmental covenant restricting potable use (new)
  • Adjacent to part of a landfill (new)

Best Efforts to address a complete off property exposure pathway

The new rules recognize that it may not always be possible to access off-property locations for the investigation or remediation required to demonstrate compliance with applicable standards. The updated Remediation rule provides a new means of achieving a CNS, despite not addressing a completed off property exposure pathway, through an approved demonstration of Best Efforts. Sufficient attempts to access or remedy an off-property exposure pathway can be documented and approved by Ohio EPA, but if not addressed, the exposure pathway will be excluded from the CNS and associated state liability protection under the VAP.

Remedy implementation before and after CNS

The updated Remediation rule clarifies a number of remedy issues:

  • The remedy must be constructed prior to the NFA but may achieve compliance afterwards within a definite timeframe under an Operation and Maintenance Plan (OMP).
  • The remediation timeframe includes a post-compliance verification period that may be two years or another agreed timeframe.
  • The remedy may be changed post-CNS as long as the property remains in compliance with the existing OMP, any environmental covenants (ECs), and applicable standards.
  • Ohio EPA approval is not necessary for post-CNS remedy changes, but notification may be provided and acknowledgement or review requested of the agency.
  • A remedy change that requires a new OMP or new EC documents would require agency participation and review.


The updated Eligibility rule clarifies a number of issues:

  • Broadens the eligibility of certain types of petroleum underground storage tank sites.
  • Specifies milestones and timing for the sufficient evidence demonstration of entry into the VAP.
  • Requires the initial eligibility evaluation be provided in the Phase I.
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