The State

of Ohio’s Voluntary Action Program:

Findings and Recommendations

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Greene Environmental Coalition

P.O. Box 266

Yellow Springs, OH 45387

www.greenlink.org


Table of Contents

 

 

 

 

 

Executive Summary…………………………………………,…………………………………………3

 

Summary Findings and Recommendations……………….……………………………………….…5

 

The VAP Study: Detailed Findings and Recommendations

 

Introduction…………………………………………………………………………………………….10

 

Findings………………………………………………………………………………………………...17

 

Recommendations……………………………………………………………………………………...40

 

References……………………………………………………………………………………………...50

 

Appendices………………………………………………………………………………………….….51

 

           


Executive Summary

 

Introduction

Ohio bears witness to its reputation as one of the most industrialized states in the nation.   Brownfields, “abandoned, idled or under-used industrial and commercial sites, where expansion or redevelopment is complicated by real or perceived environmental contamination,” are strewn across Ohio’s landscape.  Brownfields affect all of Ohio’s citizenry and settings, from its urban core, to farm communities, to suburbia.  But brownfields are much more than an impediment to economic redevelopment and blight to Ohio’s landscape.  Ultimately, brownfields are a potential threat to public health and the environment.

 

Since brownfields are typically located in urban areas that often host low-income and minority populations, environmental justice is a relevant issue.  In the federal government, the role of environmental justice is clear.  President Clinton signed Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, on February 11, 1994.  The Executive Order requires Federal agencies to “…make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health and environmental effects of its programs, policies, and activities on minority populations and low-income populations”. 

 

Background—Existing Cleanup and Redevelopment Programs

 

Ohio’s Voluntary Action Program

To mitigate the fiscal and environmental issues that stall brownfield redevelopment, Ohio instituted a voluntary clean-up and redevelopment program, the Voluntary Action Program (VAP).  Since 1996, VAP participants, including property owners, lenders, and developers, have investigated and cleaned up contaminated properties under the supervision of private consultants. If the Ohio EPA agrees that the standards set forth by the Voluntary Action Program rules have been met, the director of Ohio EPA will issue a Covenant “Not to Sue,” releasing the owner from state civil liability.  In four years, 111 sites have entered the program. Over 800 land and 18,000 groundwater acres now have restricted use status under authority of the VAP.  An average of 15 land acres and 311 groundwater acres have been restricted per site granted a Covenant Not to Sue.

 

Other State Brownfields Cleanup Programs

Minnesota and New Jersey have successfully implemented brownfields cleanup and redevelopment programs.  Approximately 1,000 sites have entered Minnesota’s Voluntary Investigation and Cleanup Program since its inception in 1988, with over 200 sites cleaned up to date.  New Jersey’s Voluntary Cleanup Program had 2,341 sites pledged to investigate and clean up contamination in 1998.  Ohio’s VAP participation pales in comparison to Minnesota and New Jersey, with 111 sites.

 

The VAP Study

In March 2000, the Green Environmental Coalition (GEC) was awarded a grant from the George Gund Foundation to study the results of the VAP program to date.  This study is the first extensive review of the program since its inception.  The findings and recommendations of the study are outlined below. 

 

As stated in Section 6123.032 of the Amended Substitute Senate Bill 221, the intention of the VAP is “to create or preserve jobs and employment opportunities, to improve the economic welfare of the people of the state, or to control air, water, or thermal pollution….” 

 

This study specifically examines the effectiveness of the pollution control aspects of the VAP. 

 

Key Findings

The findings of the VAP Study have immediate relevance to Issue 1 bond disbursement discussions.  The distribution of $200 million in taxpayer dollars should be carefully considered in light of the following findings:

·        The current VAP does not meet US EPA requirements for brownfields cleanup programs in the areas of government oversight, public participation, and enforcement.

·        Environmental justice and public health were not the focus in cleanup efforts. The focus of the VAP property owners, lenders and/or developers was economic redevelopment and job creation, rather than protecting human health and the environment.

·        Some sites receiving financial incentives to participate in the VAP failed to cleanup their sites.

·        Of the sites that completed the process, many relied on risk mitigation techniques.

·        Ohio EPA has limited financial resources to properly administer a financially viable program. 

·        Ohio EPA VAP personnel resources are limited, especially given the numbers of NFA errors and deficiencies. 

·        The current VAP process did not address offsite contamination concerns.

 

Key Recommendations

Based on our findings, the GEC proposes the following recommendations to reform the VAP.  The recommendations are intended to serve as a guide to the General Assembly and Ohio EPA to fix deficiencies in the VAP.

·        Transform the VAP into a US EPA-approved brownfields cleanup program.  Address US EPA public participation, government oversight, and enforcement requirements for brownfields cleanup programs.

·        Institute a Certified Professional Training and Testing Program.

·        Provide financial incentives solely to communities with environmental justice concerns.

·        Address offsite contamination, as required by Ohio’s Revised Code.

·        Increase Ohio EPA financial and personnel resources for the VAP.

·        Coordinate applicable standards and laws to minimize confusion and maximize cleanup.

·        Clarify Ohio EPA authority under the VAP to establish and enforce consequences for sites that 1) do not enter a cleanup program; 2) enter and withdraw from the VAP without cleanup; and/or 3) fail to complete the process within two years of notice of intent. 

·        Eliminate institutional and engineering controls as acceptable cleanup activities.

·        Eliminate the Urban Setting Designation.

 

Summary

As the primary hazardous site cleanup and redevelopment program in Ohio, proper administration is critical to the health and future of Ohio’s citizenry and natural resources. VAP reforms can protect human health, safety, and the environment as well as spur economic revitalization through rehabilitation of Ohio’s contaminated brownfield sites.


Summary Findings and Recommendations

 

Introduction

Ohio bears witness to its reputation as one of the most industrialized states in the nation.   Brownfields, defined by the United States Environmental Protection Agency (USEPA) as “abandoned, idled or under-used industrial and commercial sites, where expansion or redevelopment is complicated by real or perceived environmental contamination,” are strewn across Ohio’s landscape.  Brownfields affect all of Ohio’s citizenry and settings, from its urban core, to farm communities, to suburbia.  But brownfields are much more than an impediment to economic redevelopment and blight to Ohio’s landscape.  Ultimately, brownfields are a potential threat to public health and the environment.

 

Text Box: Environmental justice is a critical component of any government program.Since brownfields are typically located in urban areas that often host low-income and minority populations, environmental justice is a relevant issue.   In the federal government, the role of environmental justice is clear. President Clinton signed Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, on February 11, 1994.  The Executive Order requires Federal agencies to “…make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health and environmental effects of its programs, policies, and activities on minority populations and low-income populations”.  While Ohio’s Voluntary Action Program is a state-run program, environmental justice issues cannot be ignored at any level of government, particularly those hoping to receive federal funding.

 

 

Background—Existing Cleanup and Redevelopment Programs

 

Ohio’s Voluntary Action Program

Text Box: Since 1994, 111 sites have entered the VAP.To mitigate the fiscal and environmental issues that stall brownfield redevelopment, Ohio instituted a voluntary clean-up and redevelopment program, the Voluntary Action Program (VAP).  Since 1996, VAP participants, including property owners, lenders, and developers, have investigated and cleaned up contaminated properties under the supervision of private consultants. Upon completion of a VAP project, the consultant, designated a “Certified Professional” by the Ohio EPA, submits a report.  The report, called a No Further Action (NFA) Letter, is provided to the Ohio EPA.  The NFA describes the hazards found at the site and activities conducted to reduce exposure to these hazards.   If the Ohio EPA agrees that the standards set forth by the Voluntary Action Program rules have been met (as described in the NFA and supporting documentation), the director of Ohio EPA will issue a Covenant “Not to Sue,” releasing the owner from state civil liability.  In four years, 111 sites have entered the program. Sadly, over 800 land and 18,000 groundwater acres now have restricted use status under authority of the VAP.  An average of 15 land acres and 311 groundwater acres have been restricted per site granted a Covenant Not to Sue.

 

 

Other State Brownfields Cleanup Programs

Text Box: New Jersey has over        2,340 participating sites; Minnesota 1,000.Minnesota and New Jersey have successfully implemented brownfields cleanup and redevelopment programs.  Approximately 1,000 sites have entered Minnesota’s Voluntary Investigation and Cleanup Program since its inception in 1988, with over 200 sites cleaned up to date.  New Jersey’s Voluntary Cleanup Program had 2,341 sites pledged to investigate and clean up contamination in 1998.  Ohio’s VAP participation pales in comparison to Minnesota and New Jersey, with 111 sites.

 

The VAP Study

In March 2000, the Green Environmental Coalition (GEC) was given a grant from the George Gund Foundation to study the results of the VAP program to date.  This study is the first extensive review of the program since its inception.  The findings and recommendations of the study are outlined below. 

 

As stated in Section 6123.032 of the Amended Substitute Senate Bill 221, the intention of the VAP is “to create or preserve jobs and employment opportunities, to improve the economic welfare of the people of the state, or to control air, water, or thermal pollution….” 

 

This study specifically addresses the pollution control aspects of the VAP. 

 

 

Recommendations

Text Box: VAP reforms are relevant to all Issue 1 discussions.  Based on our findings, the GEC proposes the following recommendations to improve the VAP.  The recommendations are intended to serve as a guide to the legislative and rulemaking parties to fix deficiencies in the VAP.  In addition, the findings and recommendations have immediate relevance to, and should be considered, in all Issue 1 discussions due to a projected workload increase in the VAP.

 

·        Transform the VAP into a US EPA-approved brownfields cleanup program.  Address US EPA public participation, government oversight, and enforcement requirements for brownfields cleanup programs.  Rationale:

¨      Neither the current VAP nor Ohio EPA proposed changes to the program meet US EPA minimum requirements for brownfields cleanup programs.

q       Environmental justice and public health were not the focus in cleanup efforts.  The focus of the VAP property owners, lenders and/or developers was economic redevelopment and job creation, rather than the protection of human health and the environment.

q       The public was rarely given the opportunity to review, comment, or participate in cleanup efforts in their own neighborhoods.

q       Sites were allowed to withdraw from the program without penalty or enforcement.

q       Sites could be denied a Covenant without penalty or enforcement.

q       Some sites receiving financial incentives to participate in the VAP failed to cleanup their sites.

q       NFA errors and deficiencies delayed cleanup efforts.  Government oversight ensured these errors and deficiencies were not overlooked. 

¨      Ohio EPA has limited financial resources to properly administer a financially viable program.  Additional funding may be available for US EPA-approved brownfields programs.

 

·        Institute a Certified Professional Training and Testing Program.  Rationale:

¨      NFA errors and deficiencies delayed cleanup efforts.  A training and testing program can clearly communicate Ohio EPA documentation requirements, decreasing the number of billable Certified Professional hours to the site volunteer, and ease the paperwork workload for Ohio EPA. 

¨      Multiple standards and laws exist for brownfields cleanup.  A training and testing program provides opportunities for Certified Professionals to question Ohio EPA regarding applicable standards and laws. 

 

·        Provide financial incentives solely to communities with environmental justice concerns.  Rationale:

¨      Environmental justice and public health were not the focus in cleanup efforts.  The focus of the VAP property owners, lenders and/or developers was economic redevelopment and job creation, rather than the protection of human health and the environment.

¨      Some sites receiving financial incentives to participate in the VAP failed to cleanup their sites.  The wasted funding could have been provided to communities with environmental justice concerns to revitalize their contaminated properties.

¨      Fortunately, some sites that completed the VAP process with the help of financial incentives had environmental justice concerns.

 

·        Address offsite contamination as required by Ohio’s Revised Code.

¨      The public was rarely given the opportunity to review, comment, or participate in cleanup efforts in their own neighborhoods.

¨      The current VAP process did not address offsite contamination concerns.

¨      Some sites were located on or near critical resource aquifers, wells, and/or municipal water supplies.  On- and offsite contamination threatened these critical resources, potentially threatening public health. 

¨      Sites were allowed to withdraw from the program without penalty, prior to addressing on-or offsite contamination.

¨      Sites could be denied a Covenant without penalty or enforcement.

 

·        Increase Ohio EPA financial and personnel resources for the VAP.  Rationale:

¨      Ohio EPA has limited financial resources to properly administer a financially viable program.   While intended to be a financially self-sustaining program, the VAP has been subsidized with federal and state funding since its inception.

¨      Ohio EPA VAP personnel resources are limited, especially given the numbers of NFA errors and deficiencies.

 

·        Coordinate applicable standards and laws to minimize confusion and maximize cleanup.  Rationale:

¨      Multiple standards and laws exist for brownfields cleanup.

¨      NFA errors and deficiencies delayed cleanup efforts.

¨      Some sites resided on or near critical resource aquifers, wells, and/or municipal water supplies.

 

·        Clarify Ohio EPA authority under the VAP to establish and enforce consequences for sites that 1) do not enter a cleanup program; 2) enter and withdraw from the VAP without cleanup; and/or 3) fail to complete the process within two years of notice of intent.  Rationale:

¨      Sites were allowed to withdraw from the program without penalty.

¨      Sites could be denied a Covenant without penalty or enforcement.

¨      Some sites receiving financial incentives to participate in the VAP failed to cleanup their sites.  The wasted incentives could have been provided to communities that would have addressed their contamination problems. 

¨      Some sites were located on or near critical resource aquifers, wells, and/or municipal water supplies.  Because portions of Ohio’s population depend on these resources for their water supply, immediately addressing on- and offsite contamination is crucial. 

¨      The current VAP does not meet US EPA requirements for brownfields cleanup programs.  Enforcement is one of the six minimum requirements for US EPA-approved cleanup programs.

 

·        Eliminate institutional and engineering controls as acceptable cleanup activities.  Rationale:

¨      Of the sites that completed the process, many relied on risk mitigation techniques.  Rather than cleaning up or removing contamination, the sites minimized exposure through the use of deed restrictions or fences, asphalt caps, and/or landscaping.  Of the 57 sites with Covenants Not to Sue, each averages 312 groundwater and 15 land acres with restricted uses. 

¨      Some sites were located on or near critical resource aquifers, wells, and/or municipal water supplies.  Risk mitigation techniques did not adequately protect these critical water resources.  Cleanup is the only acceptable solution to protect Ohio residents dependent upon these resources for their water supply. 

 

·        Eliminate the Urban Setting Designation.  Rationale:

¨      Of the sites that completed the process, many relied on risk mitigation techniques.  The USD, one such technique, failed to cleanup groundwater.  Groundwater is a dynamic resource; polluted groundwater has the potential to infect other non-contaminated water resources.

¨      Some sites were located on or near critical resource aquifers, wells, and/or municipal water supplies.  Risk mitigation techniques such as the USD did not adequately protect these critical water resources.  Cleanup is the only acceptable solution to protect Ohio residents dependent upon these resources for their water supply.

 

 

Summary

As the primary hazardous site cleanup and redevelopment program in Ohio, proper administration is critical to the health and future of Ohio’s citizenry and natural resources. VAP reforms can protect human health, safety, and the environment as well as spur economic revitalization through rehabilitation of Ohio’s contaminated brownfield sites.


The VAP Study: Detailed Findings and Recommendations

 

Introduction

Ohio bears witness to its reputation as one of the most industrialized states in the nation.   Brownfields, defined by the United States Environmental Protection Agency (USEPA) as “abandoned, idled or under-used industrial and commercial sites, where expansion or redevelopment is complicated by real or perceived environmental contamination,” are strewn across Ohio’s landscape.  Brownfields affect all of Ohio’s citizenry and settings, from its urban core, to farm communities, to suburbia.  Ultimately, brownfields are a potential threat to public health and the environment.

 

Since brownfields are typically located in urban areas that often host low-income and minority populations, environmental justice is a relevant issue.  Dave Ulrich, Deputy Regional Administrator for the United States EPA Region 5, noted in a May 10, 1994, letter to Jennifer Tiell, Deputy Director Ohio EPA: “Since many brownfields sites are located in poor and minority communities, their existence raises environmental justice questions as well.” 

 

The federal government has also recognized the role of environmental justice in its operations.  President Clinton signed Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, on February 11, 1994.  The Executive Order requires Federal agencies to “…make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health and environmental effects of its programs, policies, and activities on minority populations and low-income populations”.  While the VAP is a state-run program, environmental justice issues cannot be ignored at any level of government, particularly for programs hoping to receive federal funding.

 

 

Background: What is the Voluntary Action Program (VAP)?

Text Box: Owners independently investigate and clean up their sites.In June 1994, Ohio Governor George Voinovich signed Amended Substitute Senate Bill 221 into law, creating the Voluntary Action Program (VAP).  The VAP provided an opportunity for brownfields sites to be cleaned up with minimal government oversight.  Prior to the VAP, contaminated sites were cleaned up with direct oversight from the Ohio EPA.  The VAP allows lenders, property owners, and developers to independently investigate and cleanup potentially contaminated former industrial sites.  If responsible parties properly implement standards found in the VAP administrative rules to cleanup contaminated sites, they could be issued a Covenant Not to Sue.  The Covenant releases the parties from state civil liability.

 

Ineligible Sites

According to Senate Bill 221 and its Administrative Rules, certain sites are ineligible for the VAP.  These sites include such items as:

1.      Underground storage tanks.

2.      Underground injection control wells.

3.      Oil and gas wells.

4.      Polychlorinated biphenols (PCBs).

5.      Hazardous wastes treated or stored on the property after November 19, 1980.

6.      Solid waste facilities.

 

The Certified Professional

Text Box: The Certified Professional is a key player in contaminated site cleanups.A critical player in the VAP process is the Certified Professional. Amended Substitute Senate Bill 221 3746.01 states the director of the Ohio EPA will certify environmental professionals according to the Administrative Rules to act in the capacity of “Certified Professionals”.  Section 3746.18 further authorizes the director to request documents and data to verify the qualifications of the professional.  The Certified Professional is an agent of the lenders, property owners, and/or developers, reviewing the environmental status of the VAP site.  Once the Certified Professional is satisfied that a site has been cleaned up enough to meet minimum state standards, his or her findings are documented in a No Further Action (NFA) letter in accordance with Amended Substitute Senate Bill 221.  Ultimately, the Certified Professional requests Ohio EPA to issue a Covenant.

 

According to Administrative Rule Number 05, “Certified Professionals”, the director of the Ohio EPA can authorize persons to be certified professionals with the following credentials:

1.      A bachelor’s degree in biology, chemistry, biological sciences, geology, hydrogeology, toxicology, scientific subdisciplines in public health or hazardous waste management, appropriate areas of engineering, or in equivalent disciplines.

2.      Eight years relevant experience; three of the eight years on a supervisory role.

3.      Professional competence, which is determined by the state of the application, references, and other sources.

4.      Good moral character.

5.      Advanced degrees in relevant fields can be substituted for time in experience, up to two years.

 

The applicant also pays an initial fee of $2,500.  To maintain status as a Certified Professional, proof must be presented to the agency of twenty-four hours of relevant continuing education per year, with a $2,000 renewal fee. 

 

Phase I Property Assessment and NFA Letter

According to Rule 5 of the VAP Administrative Rules, the purpose of a Phase I property assessment is to determine whether releases of hazardous substances or petroleum from any on- or off-property activities have contaminated the site. Historical data and release histories are consulted for evidence of contamination.  Adjacent properties within one-half mile of the property boundaries are to be inspected, as well as physically viewing the property for evidence of contamination.  Based on the findings, a thorough report is prepared by the Certified Professional.  The report and an NFA Letter is submitted to the Ohio EPA with a fee of $950.  The report and the NFA are then reviewed by Ohio EPA personnel for thoroughness, applicability to technical standards and rules, and omissions. 

 

Phase II Property Assessment and NFA Letter

A Phase II Property Assessment is required if groundwater contamination exists or soil contamination is extensive.  Part of the Phase II Assessment is to highlight remedial activities that have taken place on the property.  Extensive science is used in this phase of the VAP.  The report, an NFA letter, and a $4,950 fee are submitted to the Ohio EPA for review. 

 

Authorized Remedial Activities

Text Box: Authorized cleanup activities include deed restrictions, asphalt caps, fences, and landscaping.Amended Substitute Senate Bill 221 and its Administrative Rules have defined four remedial activities as acceptable methods to cleanup brownfields sites.  These activities include risk assessments, institutional controls, engineering controls, and remediation: 

1.      Risk assessments are made to determine potential contamination exposure to humans and ecology.  If contamination exists, emphasis is placed on public health, safety, and the environment of the property and surrounding properties.  An example of a human risk assessment is the determination of carcinogenic and noncarcinogenic risks.

2.      Institutional controls include land use restrictions.  Land use can be restricted to residential, commercial, and/or industrial use.  Ground water use can also be restricted. Land use restrictions must be placed on the property deed and registered with the county recorder’s office.

3.      Engineering controls “contain or control the release of hazardous substances or petroleum at or from the property…” according to Amended Substitute Senate Bill 221.  Fences, cap systems, landscaping, and cover systems are acceptable forms of engineering controls.  Should the lenders, property owners, and developers choose to use engineering controls on their property, they must submit an Operation and Maintenance Plan to the Ohio EPA. 

4.      Remediation is necessary when chemicals of concern in any environmental media exceed the applicable standards outlined in the Administrative Rules or any other applicable standards.  Passive or active remediation may be used on the property; a few examples include soil removal and disposal, ground water pump-and-treat systems, soil washing, natural attenuation, and bioremediation.  At a minimum, remediation must be monitored annually.  An Operation and Maintenance (O&M) Plan must be submitted to the Ohio EPA. 

 

Operation and Maintenance Plan/Agreement

Any property using engineering controls or a form of active or passive remediation to contain chemicals of concern must submit an Operation and Maintenance Plan to the Ohio EPA.  The plan must outline activities that will be taken to ensure a property will meet applicable standards, taking into consideration public health and safety and the environment.  All monitoring activities must be performed annually.  Should Ohio EPA issue an O&M Agreement, the plan could contain a description of activities that describe how the site will comply with standards within a five year time period.  Proof of financial assurance is required in order to ensure that operation and maintenance activities will continue to be conducted.  A fee of $2,950 is submitted to Ohio EPA with the plan in addition to other applicable documents and the NFA Letter. 

 

Variance from Applicable Standards

Applicants are allowed to submit a request for a Variance from Applicable Standards that are outlined in the Administrative Rules.  They must demonstrate that it is either technically infeasible to meet applicable standards and/or it is cost prohibitive.  In addition, the proposed alternative must environmentally improve the property so that public health and safety are considered, and indicate that the proposed alternative is necessary to preserve, promote, protect or enhance employment opportunities and reuse of the land.  A public meeting must be held to inform the public of the proposed variance.  A fee of  $18,500 must accompany the request. 

 

Audits

Text Box: OEPA is required to audit 25 percent of all NFAs submitted annually.Each calendar year, the Ohio EPA is required to conduct an audit on 25 percent of all NFAs submitted to the agency.  The NFAs are selected randomly.  The audit may consist of a review of the NFA and its accompanying report and/or a physical inspection of the property.  The purpose of the audit is to determine whether the property meets applicable standards as outlined in the Administrative Rules. 

 

Urban Setting Designation

An Urban Setting Designation (USD) is recognition from the Ohio EPA“…that groundwater in qualifying urban areas is not currently used as a source of drinking water and is not expected to be needed to meet the demands for public water supplies in the foreseeable future.”  Ohio EPA states that an approved USD “…would lower the cost of cleanup and thereby promote economic redevelopment while still protecting public health and safety.”

 

Tax Abatements, Credits, and other Financial Incentives

Amended Substitute Senate Bill 221 provided tax abatement, credits, and low-interest loan incentives to those properties issued a Covenant.  The Director of Development is authorized under Section 166.07 of the Amended Substitute Senate Bill 221 to lend money for the VAP program, not to exceed 75 percent of the total allowable costs of the project.  The Ohio Water Pollution Control Loan Fund is a low interest loan source for sites that are addressing related contaminated water cleanup.  According to the Ohio EPA Fact Sheet, titled “Senate Bill 221”, real estate taxes on increased property values due to cleanups will be abated for 10 years.  The Brownfield Site Tax Credit Program found in House Bill 441, and the Brownfield Grant Assistance Fund found in House Bill 442, provided additional financial incentives to brownfields sites entering the VAP.  These incentives have since expired.

 

Technical Assistance

For an hourly fee, Ohio EPA staff members are able to provide technical assistance to sites that are having difficulty resolving problems.  Technical assistance can include reviewing plans, risk assessment advice, and interpretations of standards for groundwater. 

 

 

 

 

 

 

VAP: The Numbers

Since the program’s inception in 1994:

 

·        As of August 1, 2000, 111 sites had entered the VAP.

 

·        Fourteen, or 12.6 percent, of the 111 sites have withdrawn from the program.

 

·        As of August 1, 2000, Ohio EPA has issued 57 Covenants.

¨         O&M Plans, describing contamination controls on the property, have been written for 21, or 18.9 percent, of the sites with Covenants.

¨         According to the Ohio EPA Web site, 16 USDs had been granted as of October 31, 2000. 

q       These 16 USDs have restricted 17,526 acres of groundwater in the state, an average of 303 USD groundwater acres with restricted use per site.

¨         Land use restrictions have been placed on 45, or 78.9 percent, of the sites with Covenants.

q       Land use restrictions have been placed on 828 acres, an average of 15 land acres with restricted use per site.

q       Low-income populations were found in 28, or 62.2 percent, of the 45 sites with land use restrictions.

q       Minority populations were found in 23, or 51.1 percent, of the 45 sites with land use restrictions.

¨         Ground water restrictions (not related to the USD) have been placed on 23, or 40.9 percent, of the sites with Covenants.

q       Ground water restrictions (not related to the USD) have been placed on 525 acres, an average of 9 groundwater acres with restricted use per site.

q       Low-income populations were found in 16, or 69.6 percent, of the 23 sites with groundwater use restrictions.

q       Minority populations were found in 14, or 60.9 percent, of the 23 sites with groundwater use restrictions.

¨         Four Covenants, or 3.6 percent, have been denied by Ohio EPA.

 

 


 


Other State Brownfields Cleanup Programs

Minnesota and New Jersey have successfully implemented brownfields cleanup and redevelopment programs.  Approximately 1,000 sites have entered Minnesota’s Voluntary Investigation and Cleanup Program since its inception in 1988, with over 200 sites cleaned up to date.  New Jersey’s Voluntary Cleanup Program had 2,341 sites pledged to investigate and clean up contamination in 1998.  Ohio’s VAP participation pales in comparison to Minnesota and New Jersey, with 111 sites.

 

The VAP Study

In March 2000, the Green Environmental Coalition (GEC) received a research grant from the George Gund Foundation to study the results of the VAP program.  This study is the first extensive review of the program since its inception.  The findings and recommendations of the study are outlined below. 

 

As stated in Section 6123.032 of the Amended Substitute Senate Bill 221, the intention of the VAP is “to create or preserve jobs and employment opportunities, to improve the economic welfare of the people of the state, or to control air, water, or thermal pollution….” 

 

This study specifically addresses the pollution control aspects of the VAP. 

 

 

Ohio EPA List of Contaminated Sites and the VAP Study

Text Box: Fourteen VAP sites matched OEPA’s internal list of 1,650 contaminated sites.Historically, the Ohio EPA Division of Emergency & Remedial Response (DERR) compiled an annual report containing the “…sites in Ohio where there is evidence of, or it is suspected that waste management has resulted in the contamination of air, water, or soil and there is a confirmed or potential threat to human health or the environment” (Ohio EPA 1997 Master Sites List Report, p. 1).   As a result of litigation, the Ohio EPA no longer publishes an MSL.  However, the agency continues to update its internal list of potential or suspected contaminated sites. GEC extracted a copy of the internal list for research purposes.  As of August 2000, 1,848 sites are listed on the agency’s internal list.  (Note: Ohio EPA currently reports 1,650 sites to the media.)  Fourteen VAP sites are listed on the internal agency list of potential or suspected waste management contaminated sites.  Ninety-seven of the 111 VAP sites were not found on the Ohio EPA internal list. Either the sites did not meet the criteria for the internal list, or there are more contaminated sites than Ohio EPA is aware of.

 

 

Study Methodology

During July and August 2000, a team from GEC was granted access to Ohio EPA VAP offices to survey materials, files, and databases associated with the VAP.  All available hardcopy files were reviewed; some were detailed, others received a light review.  The amount of review was based upon the amount of information available in the files at the time.  Some files were completely missing; others had pages missing.  Legal review was cited as the most common reason for missing files and pages.  Files receiving a detailed review were scanned and cataloged on a server located in Yellow Springs, Ohio. 

 

The Ohio EPA VAP database was extracted and stored on the server.  The database was partially completed.  Significant chunks of data had not been entered into the database. 

 

Based on the hardcopy file information and the Ohio EPA VAP database, GEC compiled an independent Microsoft Excel spreadsheet and Microsoft Access database consisting of VAP-related information.  The Ohio EPA Web site and the Internet were also consulted to complete any missing information. Information found in the GEC-generated spreadsheet, the Web site, the Internet, and the database was analyzed and collated to produce the study findings and recommendations listed below.  


Findings

 

·        The current VAP does not meet US EPA requirements for brownfields cleanup programs in the areas of government oversight, public participation, and enforcement.

·        Environmental justice and public health were not the focus in cleanup efforts. The focus of the VAP property owners, lenders and/or developers was economic redevelopment and job creation, rather than the protection of human health and the environment.

·        Several sites receiving financial incentives to participate in the VAP failed to cleanup their sites.

·        Some sites that completed the VAP process with the help of financial incentives did have environmental justice concerns.

·        Of the sites that completed the process, many relied on risk mitigation techniques.

·        Ohio EPA has limited financial resources to properly administer a financially viable program. 

·        Ohio EPA VAP personnel resources are limited, especially given the numbers of NFA errors and deficiencies. 

·        Offsite contamination concerns were not addressed as required by Ohio’s Revised Code.

·        Sites were allowed to withdraw from the program without penalty. 

·        Sites could be denied a Covenant without penalty or enforcement.

·        The public was rarely given the opportunity to review, comment, or participate in cleanup efforts in their own neighborhoods.

·        NFA errors and deficiencies delayed cleanup efforts.

·        Some sites resided on or near critical resource aquifers, wells, and/or municipal water supplies.

·        Participation in the VAP was not limited to classic brownfields sites; many non-urban sites participated in the process. 

·        Multiple standards and laws exist for brownfields cleanup. 

 

 

Neither the Current VAP nor Proposed Ohio EPA Changes to the Program meet US EPA Brownfields Cleanup Program Requirements

Text Box: US EPA has established six criteria for state brownfields cleanup programs.The United States EPA has been working with states to develop partnerships for cleaning up brownfields sites.  Included in these partnerships are financial and technical assistance.  In order to secure the partnership, the agency has established six criteria for states’ voluntary cleanup programs before a Memorandum of Agreement (MOA) between the United States EPA and the state can be established:

  1. Provides opportunities for meaningful community involvement.
  2. Ensures that voluntary response actions are protective of human health and the environment.
  3. Has adequate resources to ensure that voluntary response actions are conducted in an appropriate and timely manner, and that both technical assistance and streamlined procedures, where appropriate, are available from the State agency responsible for the Voluntary Cleanup Program.
  4. Provides mechanisms for the written approval of response action plans and a certification or similar documentation indicating that the response actions are complete.
  5. Provides adequate oversight to ensure that voluntary response actions are conducted in such a manner to assure protection of human health and the environment, as described above.
  6. Shows the capability, through enforcement or other authorities, of ensuring completion of response actions if the volunteering party (ies) conducting the response action fail(s) or refuse(s) to complete the necessary response actions, including operation and maintenance or long-term monitoring activities.

 

Text Box: The VAP does not meet US EPA requirements for public participation, government oversight, and enforcement.The Ohio EPA VAP, as found in Senate Bill 221, does not meet United States EPA criteria for a partnership in the areas of government oversight, public participation, and enforcement.  Dave Ullrich, Deputy Regional Administrator for the United States EPA Region 5, noted US EPA concerns in a May 10, 1994, letter to Jennifer Tiell, then-Deputy Director Ohio EPA.  The federal agency’s primary concern was the degree of Ohio EPA oversight in the cleanup process.  Based on the US EPA experience with Superfund cleanups, the agency was concerned about the quality of private-party risk assessments.  In fact, the Superfund program originally allowed private parties to conduct risk assessments.  However, because of the variation in quality, risk assessments were turned over to the EPA.  In addition, Mr. Ulrich noted a discrepancy in the ability to obtain a waiver in cleanup standards, found in Ohio Revised Code, Section 3746.09.  The US EPA was uncertain that a waiver granted in the interest of technically infeasible standards or increased employment opportunities would properly recognize the needs for the protection of public health and the environment.  Thus, increased Ohio EPA oversight in the VAP process and enhanced public participation opportunities were necessary changes to the VAP before the US EPA MOA would be signed.  The same issues must be addressed today as were noted in 1994.

 

Based on our findings that sites may withdraw from the program or be denied a Covenant without penalty or enforcement, we feel that criteria #6 has also not been addressed under the existing VAP program.  It should also be addressed prior to a signed MOA.  Without enforcement, little incentive exists for sites to cleanup contamination to protect public health and the environment, revitalize the area, and create new job opportunities. 

 

The US EPA MOA requirements parallel environmental justice strategies outlined in Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations.  Specifically, the Order states that Federal agency policies should:

1.      Promote enforcement of all health and environment statutes in areas with minority populations and low-income populations.

2.      Ensure greater public participation.

3.      Improve research and data collection relating to the health of and environment of minority populations and low-income populations.

4.      Identify differential patterns of consumption of natural resources among minority populations and low-income populations.

 

According to the Ohio EPA Web site, the US EPA has said the MOA criteria should be addressed prior to entering into agreement.

 

 

 Demographic Data: Who is affected?

In light of the importance of Environmental Justice issues, as outlined in Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, dated February 11, 1994, the GEC examined the demographics of VAP sites to determine whether those communities were being served by the VAP.

 

Based on a review of the demographic data, our conclusion is that environmental justice was not a key component of the VAP.  A review of the demographic data generated several hypotheses:

·        Contaminated sites in Ohio are not located in census tracts with high minority and/or low-income populations.

·        The sites that have entered the VAP are located in census tracts with higher property values than sites that have chosen not to enter the VAP.   

·        Serving environmental justice populations was incidental to economic redevelopment and job creation.

·        VAP volunteer sites come from non-environmental justice communities. 

·        Environmental justice communities were unaware of the VAP.

 

Text Box: Environmental justice was not a key component of the VAP.If environmental justice were a component of the program, the demographics of the sites that entered the program would be inconsistent with Ohio’s demographics.  However, the findings indicate low-income and minority populations of the VAP sites were consistent with Ohio’s low-income and minority populations.  Far greater percentages of minority and low-income populations would have been served had environmental justice been an integral part of the program.

 

Poverty Related Data

In total, the average income of persons residing in VAP site census tracts is consistent with Ohio’s average population income.  A review of average household income within individual sites, however, finds many low-income populations. Where applicable, these populations are highlighted in example sites throughout the report.

 

The average household income of 50.4 percent of the VAP sites (57) was below Ohio’s median 1990 income, $28,706.  The average household income of 49.6 percent of the VAP sites was above Ohio’s median income for 1990, $28,706.

 

Based on the US Census Bureau average threshold household income, eight VAP sites reside in areas of poverty.  These sites, accounting for 7.2 percent of the VAP sites, have incomes less than the US Census Bureau’s 1990-weighted average threshold income of $13,359 for the United States.  (According to the US Census Bureau Web site, any family income less than the threshold amount is considered living in poverty.)

 

According to Ohio’s poverty rate data, the percentage of people living in poverty in 1990 was 12.5 percent.  Forty-seven of the VAP sites, or 42.3 percent, contained an average poverty rate greater than the state of Ohio’s standard of 12.5 percent.

 

 

Race Related Data

On a whole, the race-related demographics of VAP sites match the demographics of the state of Ohio.  However, individual site demographics reveal areas with high minority populations and/or low-income populations.  Where applicable, these populations are highlighted in example sites throughout the report.

 

 

 


 

 


 

 

 

 

 


Data Extraction Methodology: Based on available addresses and zip codes for each of the 111 VAP sites, the census tract number was obtained from the US Census Bureau Web site, using the Censtats Census Tract Street Locator.  The census tract number was entered into the US Environmental Protection Agency/US Census Bureau Landview CD-ROM to obtain demographic data from the 1990 Census for each VAP site and the state of Ohio.  The demographic data for the VAP sites was then compared against the demographic data for the state of Ohio.  Data from the state of Ohio was chosen as a benchmark for comparing and contrasting the demographic data for each of the sites. 

 

The US Census Bureau Web site was also accessed to obtain poverty threshold data for a family of four. Data was stored in a Microsoft Excel spreadsheet, and compiled using Excel functions, a hand count, and/or a calculator.  One census tract had no associated demographic data, reducing the number of sites with demographic data to 110.

 

Environmental Justice Methodology: Demographic data for the state of Ohio was compared with demographic data for each VAP site.  For poverty-related data, we assumed all incomes less than Ohio’s 1990 median income of $28,706 were low-income populations.  We also assumed all incomes less than the 1990 poverty threshold income for a family of four of $13,359 were low-income populations.  Any site with a minority population greater than Ohio’s population was considered a site with a higher than normal minority population. 

 

 

Some VAP Sites Receiving Financial Incentives Failed to Complete VAP Process

Very little information was available regarding financial incentives for VAP sites. Our main information source was the April 1998 Governor’s Report on the VAP, which is the most recent report given to the Ohio legislature. Despite limited data, a few examples can be found where financial incentives were given to sites in order to participate in the VAP, yet they failed to complete the cleanup process. 

 

Text Box: Financial incentives must not be given to sites that do not clean up contamination.Failure to finish the VAP cleanup process when given financial incentives is a frustrating experience for all.  First, the money could have been given to sites that would have used it to finish the process.  Second, financial incentives are seen as an enticement to participate in the VAP.  If the incentives are not as attractive as originators once thought, future financial incentives are less likely to be considered.  Third, these funds could have been given to Ohio EPA to increase oversight, enforcement, and public participation activities related to the VAP.  Finally, public health and environment, economic redevelopment, job creation, and environmental justice issues do not receive proper attention.  Based on these findings, the recent passage of Issue 1 will require additional thought to the financial incentive process. 

 

One example of a site receiving government money that did not complete the VAP process is the HWH Property, Ltd.  They received a $10,000 grant from the city of Lima to participate in the VAP cleanup process.  After numerous deficiencies were found in the NFA, the Covenant was denied by Ohio EPA.

 

Governor George V. Voinovich’s April 1998 Report on Ohio’s Voluntary Cleanup and Redevelopment Program cited 13 properties that had received loans or grants for VAP-related projects during 1997.  The financial incentives totaled $9,207,154.  A review of the Ohio EPA list of Covenants Not to Sue and Approved NFA Letters found five of the 13 sites actually submitted NFA Letters.  Four Covenants were issued, with one pending.  In total, $5,877,224 was issued in grants and loans to eight sites with the intent of VAP participation have not yet participated.  Of that total, $3,250,750 was given in grants alone. 

 

 

Project Name
Description

Financial Incentive

Amount
NFA
Covenant

Former Mosler Safe Company

VAP Phase II investigation

WPCLF Loan

$     79,930

11/03/97

11/18/98

Collinwood Yards

VAP Remediation

HB 442 Grant

$1,000,000

05/07/98

08/04/98

Sunar-Hauserman Co.

VAP Remediation

WPCLF Loan

$1,637,000

 

 

Sunar-Hauserman Co.

VAP Remediation

OWDA Loan

$1,025,534

 

 

Barbarton Laundry & Cleaning, Inc.

VAP Phase II investigation

WPCLF Loan

$     63,940

 

 

Former Jefferson Smurfit Paper Mill

Demolition and VAP Remediation

OWDA Loan

$1,500,000

01/06/98

05/15/98

Ohio Brass Works

VAP Remediation

HB 442 Grant

$           750

 

 

Scranton Peninsula

VAP Phase II investigation

WPCLF Loan

$   650,000

 

 

Ohio River Industrial Park

VAP Remediation

HB 442 Grant

$   500,000

02/09/96

03/05/96

Jeep Expansion

VAP Remediation

HB 442 Grant

$1,000,000

 

 

Lockland Commerce/ Village of Lockland

Land acq. for industrial park undergoing voluntary action

HB 442 Grant

$1,000,000

 

 

Walworth Run Industrial Park

VAP Remediation

HB 442 Grant

$   250,000

05/05/00

Pending

USX-Ohio Works

VAP Remediation

HB 442 Grant

$   500,000

 

 

TOTAL

 

 

$9,207,154

 

 

 

 

Financial Incentives given to a Few Sites with Environmental Justice Interests 

As stated above, very little information was available regarding financial incentives for VAP sites. Our main information source was the April 1998 Governor’s Report on the VAP, which is the most recent report given to the Ohio legislature.  Based on the limited information available, we found that in general, locations that received financial incentives and submitted NFA Letters appear to have been sites with environmental justice issues. 

 

Low-Income

·        The Walworth Run Industrial Park, Cleveland, OH, resides in a census tract with an average income is $10,385 per household—22 percent less than the United States 1990 Poverty Threshold of $13,359 per four-person household.  The income is 63.8 percent less than Ohio’s 1990 median income of $28,706.

 

·        Collinwood Railyard, Cleveland, OH, resides in a census tract with an average income of $22,785—20.6 percent less than Ohio’s 1990 median income of $28,706.

 

Minority Populations

·        HWH Property, Ltd., Lima, OH, is located in a census tract with a higher percentage of Asian Americans (2.3 percent) and Hispanics (15.9 percent) than Ohio’s average Asian American (.8 percent) and Hispanic (1.3 percent) populations.

 

·        The Lockland Development, Lockland, OH, site, also known as the Former Jefferson Smurfit Paper Mill, is located in a census tract with a higher percentage of Black persons (24.5 percent) than Ohio’s average Black population (10.6 percent).

 

·        The Former Mosler Safe, Hamilton, OH, is located in a census tract with a higher percentage of Black persons (19.1 percent) than Ohio’s average Black population (10.6 percent).

 

·        In addition to residing in a low-income census tract, the Walworth Run Industrial Park, Cleveland, OH, has a higher percentage of American Indians (.6 percent) than Ohio’s average American Indian population (.2 percent).

 

Some financial incentives were given to sites that did not have environmental justice issues. Under authority from the Voluntary Action Program, the Ohio Department of Development documented the following tax incentives for these sites:

·        Northcliff Shopping Center, Brooklyn, OH, received a tax incentive of up to $400,000 over a five-year period.  See Appendices D and H.

                  Note: No environmental justice issues exist at this site.

 

·        Ward Engineering, Grandview Heights, OH, received a tax exemption of 100 percent of the value of real property improvements for ten years.  See Appendices D and I.

                  Note: No environmental justice issues exist at this site.

 

·        Dominion Homes, Columbus, OH, received up to $127,854.79 in tax incentives over a five-year period.  See Appendix D.

                  Note: No environmental justice issues exist at this site. 

 

The Ohio Department of Development further reported that a balance of $29,242,669.21 in VAP-related tax credit authority was lost on July 1, 1999.  See Appendix D.

Substantial Reliance on Risk Mitigation Techniques

 Of the 57 Covenants that had been granted by the agency as of August 2000, 70 percent relied on risk mitigation techniques to limit exposure to contamination.

 

Text Box: Seventy percent of sites with a Covenant used risk mitigation techniques instead of removing contamination.Of the 57 Covenants that had been granted by the agency as of August 2000, 22.8 percent found contaminants of concern present in the soil or groundwater.  Thirty percent of the 57 sites with Covenants physically removed dirt or other contaminant-carrying substance. The remaining 70 percent of the sites found to have chemicals present in the soil or groundwater relied upon risk mitigation techniques, rather than actual removal of contaminants, to limit human exposure to those hazards.  See Appendix E for documentation of a site relying on risk mitigation techniques.

 

Institutional and engineering controls were strongly relied upon as methods for “cleaning up” sites.  Deed restrictions on land use or groundwater use, the most common institutional control, were adopted by 55, or 49.5 percent, of the 111 sites.  A small sample of sites relying solely on deed restrictions include:

·        Text Box: Proposed Toledo Prison: Solution is to limit the site to prison use only.Proposed Toledo Prison, Toledo, OH: The proposed solution is to limit the site to prison use only, placing limits to evacuation procedures. Crop cultivation is not allowed on the property. 

      Note: The site resides in a census tract with an average annual income of $19,493—32 percent less than Ohio’s median income for 1990.  In addition, the census tract has a 40.5 percent Black population and a 6.4 percent Hispanic population.  Ohio’s Black population averages 10.6 percent; its Hispanic population averages 1.3 percent.  

 

·        Capitol Dry Cleaners, Oxford, OH: Due to the presence of VOCs and PAH, the site is not allowed to build subsurface structures.  Its groundwater use is also restricted. 

      Note: The site resides in a low-income census tract.  The average household income of its residents is $15,108—47.4 percent less than Ohio’s 1990 median income of $28,706.

 

·        Cleveland Gear, Cleveland, OH: The former junk/wrecking yard has soil and groundwater contamination, specifically VOC and TPH.  A deed restriction for industrial use only and no groundwater use was placed on the property. 

      Note: The average household income of its residents is $15,446—53.8 percent less than Ohio’s 1990 median income of $28,706.

 

·        Kingsford Products, Baltimore, OH: A commercial/industrial use restriction was placed on the property.  The site formerly contained an exterior painting operation.  A drain emptied the excess material into two buried 55-gallon drums.

                  Note: No environmental justice issues exist at this site.

 

·        Tri-Dayton Properties, Troy, OH: An industrial use deed restriction was placed on the property.  Chemicals of concern found in the soil met industrial use standards. 

      Note: A 4.1 percent Asian population lives in this census tract, greater than Ohio’s .8 percent average population.

 

·        Steelcraft Facility, Blue Ash, OH: The property is limited to industrial use, with prohibitions placed on groundwater use and subsurface structures.  VOCs and metals were found in the soil; VOCs and SVOCs were found in the groundwater. 

      Note: A 2.3 percent Asian population lives in this census tract, compared to Ohio’s .8 percent average population.

 

·        Chilcote Company, Cleveland, OH: A deed restriction banning single family residences was placed on the property.  Underground storage tanks, pump islands, a truck scale and foundation are located on the site.

      Note: This property resides in a census tract with average income of $12,361—7.4 percent less than the US Poverty Threshold Income of $13,359.  In addition, a 23.6 percent Asian population lives in this census tract, a far greater average than Ohio’s .8 percent average population.

 

·        Collinwood Railyard, Cleveland, OH: Industrial/commercial use only and no groundwater use deed restrictions, plus a USD, were granted to this property.  Petroleum compounds, metals, and organics were the primary contaminants found at the site. 

      Note: The site resides in a census tract with an average income of $22,785—20.6 percent less than Ohio’s 1990 median income of $28,706.

 

·        Tower Place Garage, Cincinnati, OH: A USD and a deed restriction for groundwater use were granted. 

      Note: A 2.2 percent Asian population lives in this census tract, greater than Ohio’s .8 percent average population.  Also, a 1.8- percent Hispanic population resides in this tract compared to Ohio’s 1.3- percent average population.

 

Engineering controls such as landscaping, barriers, and fences were also used on 18, or 16.2 percent, of VAP sites.  A small sample of the controls used by sites include:

·        Northcliff Shopping Center, Brooklyn, OH: Lead and VOCs were the main chemicals of concern in the contaminated soil.  The groundwater is contaminated with acetone and antimony.  A concrete foundation, landscaping, and barriers were the engineering controls utilized to limit exposure to contamination.  The site also has a deed restriction for “No Single Family Residences”.  Notably, the site borders the Deaconess Hospital and a residential area.  See Appendix H.

                  Note: No environmental justice issues exist at this site. 

 

·        Smith Brothers Hardware, Columbus, OH: An asphalt cap with six inches of fill and three to six inches of asphalt was applied to limit exposure to contamination. 

      Note: This site lies in a census tract plagued with extreme poverty.  The average annual income of its residents in 1990 was $9332—30.1 percent less than the United States 1990 Poverty Threshold Income of $13,359.  Its average income is 67.5 percent less than Ohio’s median income for 1990.  The census tract also has a Black population (50.8 percent) exceeding Ohio’s Black population (10.6 percent).

 

·        Transport Road BP, Cleveland, OH: The site regraded 150,000 yards of soil to facilitate water drainage.  In addition, 120,000 yards of soil were added as a cap to provide 2.5 feet of soil cover, plus vegetation, to limit contamination exposure. 

                  Note: No demographic data was available for this census tract.

 

·        Text Box: Highland Ridge Shopping Plaza construction workers were given notice of potential cancer risks from exposure to the soil.Highland Ridge Shopping Plaza, Cincinnati, OH: A paved parking lot and added soil were used to provide a barrier to the contaminated soil.  Contaminants include metals, SVOCs, VOCs, and BTEX. These chemicals of concern were a potential cancer risk for workers exposed to the soil. See Appendix M for a copy of the Covenant, granted January 6, 1998.

      Note:  The Plaza resides in a census tract with an average annual income of $25,496—11.1 percent less than Ohio’s median income of $28,706.  In addition, the tract has a 30.7 percent Black population, compared to Ohio’s 10.6 percent population.

 

·        Stanley Works, Washington Courthouse, OH: A fence was paced around areas where soil and groundwater were undergoing evacuation and bioremediation.  In addition, groundwater monitoring is taking place at the site.

      Note: The site resides in a census tract with an average income of $21,250—26 percent less than the Ohio 1990 median income of $28,706.

 

Not all sites relied solely on institutional and/or engineering controls.  A total of 15, or 13.5 percent, of sites removed soil, ranging from 2 cubic yards to 12,360 tons of soil. Examples include:

·        NOVA Chemicals, Copley, OH, removed 52,570 tons of soil.  See Appendix S.

      Note: The census tract has a slightly higher Black population than Ohio’s population—13.5 percent and 10.6 percent, respectively.

 

·        Crabar Business Systems, Leipsic, OH, removed 400 yards of soil. 

      Note: The site’s census tract has a 17 percent Hispanic population, compared to Ohio’s 1.3- percent Hispanic population.

 

·        Kessler Products, Boardman, OH, removed 600 tons of soil. 

                  Note: No environmental justice issues exist at this site. 

 

This is a small sample of the sites that relied on risk mitigation techniques to “cleanup” their properties.

 

Ohio EPA VAP Resources Limited

 

Financial

The VAP was originally intended to be a financially self-sustaining program; as such, no appropriations would be needed from the General Assembly. However, revenue and expenditure data from the Ohio Voluntary Action Program Annual Report, September 1994 - June 1997, shows that the “self-sustaining” program is in a severe deficit.  In Fiscal Year 1997, revenues totaled $390,911.68, while expenditures totaled $927,816.57—a difference of $536,904.89.  Certified Professional and Certified Laboratory fees accounted for 86 percent of the revenue.  NFA fees accounted for 11 percent and technical assistance fees less than one percent of the total revenue.

 

 

 

 

 

The VAP has other financial obligations that have not been met.  Amended Substitute Senate Bill 221 authorized fees from the Hazardous Waste Management Facility Fund to be used for VAP startup costs, requiring “Not later than three years after so using any such moneys, the director shall reimburse Text Box: The VAP is not a financially self-sustaining program.the fund in the amount of moneys so used with moneys from the voluntary action program fund”.  As of October 1998, the Hazardous Waste Facility Management Fund had not been reimbursed for the $2,803,274 loan.  The Final Report and Recommendations of the Advisory Committee for DHWM and DERR, dated October 14, 1998, recommended that the VAP loan be reimbursed from the general fund, to alleviate the requirement that VAP repay the Hazardous Waste Management Facility Fund. 

 

Flat rate fees from those sites participating in the VAP was supposed to provide operational funding for the program, to ensure the program was financially self-sustaining. The Advisory Committee report stated that the VAP continues to require supplemental funding.  

 

The Draft Memorandum of Agreement Application, April 18, 2000, indicates that Ohio EPA receives $360,000 per year from general state revenues for the VAP.  In 1998, fees generated $598,000 in revenue.  In addition, Ohio EPA receives $400,000 per year from the US EPA in grants to subsidize technical assistance for publicly held sites and to develop VAP policies and programs.  In short, the concept that VAP is a financially self-sustaining program has not proven true.

 

Source

Amount

General State Revenues

$360,000

US EPA

$400,000

Fees

$598,000

TOTAL

$1,358,000

 

 

As of August 2000, Ohio EPA has provided $148,534.90 in billable hours of technical assistance for 215 requests for assistance.  Tasks included developing supplemental generic cleanup values, review and comment on property assessments, determining eligibility for the VAP, meeting attendance with engineering firms, guidance on the selection of appropriate analytical methods, review Phase I Property Assessment and Phase II Statement of Work, development of an O & M Plan, review risk assessment data, complete SESOIL model, correction of NFA deficiencies, and review input parameters for models.  Per the Ohio Voluntary Action Program Annual Report, September 1994 - June 1997, technical assistance provides less than one percent of revenues annually.

 

Personnel

Text Box: Sites receiving Issue 1 funding are expected to increase the workload.VAP personnel estimates vary, depending upon the information source.  According to a verbal communication with Ohio EPA Director Chris Jones, 13 staff members within Ohio EPA are responsible for administering the VAP. According to an email from Amy Yersavich, VAP Program Manager, the program employs 15 personnel, including Fiscal Administrative persons.  Their duties range from program maintenance activities such as reviewing voluminous NFA reports with multiple submissions and resubmittals, staffing “Not to Sue” covenants of the VAP sites, keeping track of statute and rule changes, procedure and policy development, training, and technical assistance.  These same staff members also audit 25 percent of the total number of NFAs submitted in the calendar year, requiring examination of the paperwork submitted and/or a physical visit to the site.  Furthermore, sites receiving Issue 1 funding are expected to increase the workload of the VAP. Whether the actual number is 13 or 15, the VAP is truly limited in personnel to thoroughly perform such extensive duties.

 

 

Offsite Contamination Concerns were not addressed as required by Ohio’s Revised Code

Ohio Revised Code, Section 3746.04 (B)(3), defines the minimum standards for a Phase I assessment.  Subsection (b) states: “A review and analysis of any previous environmental assessments, property assessments, environmental studies, or geologic studies of the property and any land within two thousand feet of the boundaries of the property that are publicly available or that are known to and reasonably available to the owner or operator.”  No evidence was found that lands within 2,000 feet of the boundaries of VAP sites were tested for potential offsite contamination.  See Appendices F, H, and O for documentation regarding potential offsite contamination.

 

Sites withdrew from the VAP without Penalty or Enforcement

Text Box: Fourteen sites have withdrawn from the VAP without penalty.As of August 2000, 14 sites had withdrawn from the VAP after initial attempts to participate.  Two sites re-entered the program at a later date.  Under current VAP law and Administrative Rules, no penalties, such as alternative enforcement programs, are exercised when entering and withdrawing from the VAP before completion of cleanup activities.  It may seem there are few differences between sites that withdraw from the program and unknown contaminated sites.  However, participation in the VAP is a commitment between the property owner and Ohio EPA to cleanup that site. 

 

Sites withdraw for a variety of reasons, including federal jurisdiction on underground storage tanks, problems found in an audit of the site, Certified Professional issues, lack of financial resources, and deficient files.  Other sites are allowed to withdraw from the program rather than face a denial for a Covenant.  Ohio EPA maintains that some sites withdraw from the program because they are not ready to make the financial commitment necessary to cleanup the site.  In every case, the site remains unclean, presenting a potential threat to public health and the environment.  See Appendices C, K, N, and R for documentation of a few sites that have withdrawn from the program.

 

The following is a list of the 14 sites that have withdrawn:

·        GR Klein News Company, Cleveland, OH: Ten errors were found in the Phase I assessment, and twenty-five errors were found in the Phase II assessment, including on site exposure pathways and contamination.  A school is located across the street, and a playground and other schools are within ½ mile of the site.  Based on the extent of the deficiencies and the timeframe available to remedy the problems, the site was given the option to withdraw from the program or receive a denial.  See Appendix 1.

      Note: A 35.5 percent Asian population lives in this census tract, a far greater average than Ohio’s .8 percent average population.

 

·        OC Fiber-Lite Corporation, Hebron, OH: Underground storage tanks on the property prohibited the site from entering the VAP under existing rules. 

                  Note: No environmental justice issues exist with this site. 

 

·        Federal-Mogul, Gallipolis, OH: Ohio EPA found deficiencies in the NFA documentation, including missing Phase I and Phase II documentation.  Also of concern was improper instrumentation use at an interim certified laboratory.  Because the site failed to submit documentation in accordance with VAP requirements, the site opted to withdraw.

      Note: The site resides in a census tract with an average income of $23,067—19.6 percent less than the Ohio 1990 median income of $28,706.

 

·        Certified Alloys, Maple Heights, OH: Ohio EPA requested the risk assessment be recalculated regarding a cap.  The Certified Professional was given 30 days to respond.  When he was not granted an extension, the site opted to withdraw.

      Note: The site resides in a census tract with a 24.5 percent Black population, greater than Ohio’s 10.6 percent average Black population.

 

·        Text Box: Technical deficiencies delayed the ODRC Boot Camp from receiving a Covenant.  OEPA provided a “comfort letter” so the site could receive a $1.7 million Federal grant.  Contamination was not cleaned up.ODRC Boot Camp, Glouster, OH: The NFA had significant deficiencies; of particular concern was the presence of manganese in the soil and groundwater.  The Certified Professional received non-funded technical assistance to correct the deficiencies, but did not. After receiving a “comfort letter” stating “Ohio EPA believes the construction of the proposed Boot Camp will result in no significant environmental impact to the site”, the site opted to withdraw from the program.  Upon receipt of this “Environmental Assessment”, Athens County, the owner of the site, received $1.7 million in Federal grant funding, “as well as the projected creation of 60 jobs in Southeastern Ohio”.  See Appendix N.

      Note: The site resides in a census tract with an average income of $16,068—44 percent less than the Ohio 1990 median income of $28,706.

 

·        Kilgore Farms II and III, Westerville, OH: Questions regarding the “extent of ordnance disposal and the thoroughness of investigation and removal activities for potentially hazardous materials” facilitated the withdrawal of the site.  See Appendix K.

                  Note: No environmental justice issues exist with this site.

 

·        Bostik Properties, Cleveland, OH: The documentation submitted to Ohio EPA was deficient.  Ohio EPA gave the site time to correct the deficiencies, but the volunteer opted to withdraw.

      Note: The site resides in a census tract with an average income of $17,917—37.6 percent less than the Ohio 1990 median income of $28,706.  Also, a 35.6 percent Black population, 6.5 percent Hispanic population, and a .5 percent American Indian population live in the tract, greater than Ohio’s Black (10.6 percent), Hispanic (1.3 percent), and American Indian (.2 percent) average populations.

 

·        Foltz Machine, Inc., Canton, OH: A risk assessment was missing from the documentation.  Ohio EPA asked the site to respond; they chose to withdraw.

                  Note: No environmental justice issues exist with this site.

 

·        Estate of Virginia Dornbusch, Cincinnati, OH: The volunteer was unable to pay the fee.  The site later reentered the VAP, and submitted an NFA on July 19, 2000.

                  Note: No environmental justice issues exist with this site.

 

·        Andritz Sprout-Bauer, Springfield, OH: Areas of the site were contaminated with PCBs, making it ineligible for the VAP.

                  Note: No environmental justice issues exist with this site.

 

·        Former Swan Dry Cleaners, Worthington, OH: The site resubmitted an NFA after withdrawing from the program.  A Covenant was eventually issued.  See Appendix R.

      Note: The site is located in a census tract with a slightly higher Asian population  (2.6 percent) than Ohio’s average Asian population (.8 percent).

 

·        Findlay Machine and Tool, Findlay, OH: The site has a long history of contamination.  Area of concern is a dry well with VOC contamination.

      Note: The site resides in a census tract with an average household income of $21,862—24.5 percent less than the Ohio 1990 median income of $28,706.  In addition, the site resides in a census tract with a 4.5 percent Hispanic population, greater than Ohio’s 1.3- percent average Hispanic population.

 

·        Lima Locomotive, Lima, OH: Due to NFA deficiencies, the site opted to withdraw.  A new NFA was submitted and a Covenant issued. 

                  Note: No environmental justice issues exist with this site.

 

 

Sites could be denied a Covenant without Penalty or Enforcement

Text Box: Covenants may be denied without penalty to the site.Four sites were denied a Covenant under the VAP.   Three sites did resubmit an NFA and were subsequently granted a Covenant.  Under current VAP law and Administrative Rules, no penalties, such as alternative enforcement programs, are exercised when a denial of a Covenant is issued.  Ultimately, a denial does not economically revitalize the site, increase job opportunities, or cleanup a contaminated site. 

 

Sites issued a Denial include:

·        Universal Cooperatives, Inc. Lube Plant, Kenton, OH: A non-certified laboratory was used to evaluate samples.  A Covenant was granted August 27, 1998, after another NFA was submitted.  See Appendix P.

      Note: The site resides in a census tract with an average income of $18,766—34.6 percent less than the Ohio 1990 median income of $28,706.

 

·        NOVA Chemicals, Copley, OH: A Covenant was denied for an NFA submitted on November 27, 1998.  Another NFA was submitted on July 30, 1999; a Covenant was issued on October 12, 1999. 

      Note: The census tract has a slightly higher Black population than Ohio’s population—13.5 percent and 10.6 percent, respectively.

 

·        Smith Brother’s Hardware, Columbus, OH: The Covenant was initially denied for an NFA submitted May 24, 1999.  An NFA was resubmitted on March 1, 2000.  A Covenant was issued August 15, 2000.

      Note: This site lies in a census tract plagued with extreme poverty.  The average annual income of its residents in 1990 was $9332—30.1 percent less than the United States 1990 Poverty Threshold Income of $13,359.  Its average income is 67.5 percent less than Ohio’s median income for 1990.  The census tract also has a Black population (50.8 percent) exceeding Ohio’s Black population (10.6 percent).

 

·        HWH Property, Ltd., Lima, OH: The Certified Professional was not certified until four days after the NFA was submitted.  The NFA contained 82 deficiencies, including a missing O&M Plan.  The Covenant was denied. 

      Note: The site is located in a census tract with a higher percentage of Asian Americans (2.3 percent) and Hispanics (15.9 percent) than Ohio’s average Asian American (.8 percent) and Hispanic (1.3 percent) populations.

 

 

Little Public Notification or Interaction

Text Box: Public participation does not exist in today’s VAP.Due to the potential public health and environmental impacts at VAP sites, public notification and interaction is a critical element in the cleanup process.  Of the 88 extensively reviewed files, none contained evidence of any notification or interaction with residents in surrounding communities during any phase of the assessment and cleanup process.  Several examples exist of public notification opportunities:

 

·        GR Klein News Company, Cleveland, OH: On site exposure pathways and contamination were found by Ohio EPA in a review of the NFA.  A school is located across the street, and a playground and other schools are within ½ mile of the site.  Based on the errors found in the NFA, the site was allowed to withdraw from the program. 

      Note: Low-income and minority environmental issues exist at this site.  The average income of the census tract is $13,269—$90 less than the 1990 US Poverty Threshold Income of  $13,359.  In addition, the tract has a 35.5 percent Asian American population, and a 13.3 percent Hispanic population.  Ohio’s average Asian American population is .8 percent, and average Hispanic population is 1.3 percent.

·        Northcliff Shopping Center, Brooklyn, OH: Lead and Volatile Organic Compounds (VOCs) were the main chemicals of concern in the contaminated soil.  The groundwater is contaminated with acetone and antimony.  A concrete foundation, landscaping, and barriers were used to control contamination.  The site also has a deed restriction for “No Single Family Residences”.  Notably, the site borders the Deaconess Hospital and a residential area.  See Appendix H.

                  Note: No environmental justice issues exist at this site.

 

·        Highland Ridge Plaza Shopping Center, Cincinnati, OH: Foundry sand, one of the main substances of concern, was placed on the property in the 1960’s.  Crushed drums were later found in the sand.  Leaking underground storage tanks were found on adjacent properties.  Contaminated soils (SVOCs, VOCs, and BTEX) were found to place a potential cancer risk for workers exposed to the soil.  Paved parking lots supplemented with additional soil, and landscaping were used to minimize human exposure.  Per the O&M agreement, construction workers were given notice of the potential risk and provided with precautions to take against exposure to the hazards.  See Appendix M.

      Note:  The Plaza resides in a census tract with an average annual income of $25,496—11.1 percent less than Ohio’s median income of $28,706.  In addition, the tract has a 30.7 percent Black population, compared to Ohio’s 10.6 percent population.

 

·        White-New Idea Farm Equipment, Coldwater, OH: Soil contamination, including dioxin, benzene, lead, and TPH was found.  Some soil and underground storage tanks were removed.  Contaminated soil still found under buildings is controlled by an O&M Plan.  The site is adjacent to Coldwater, OH, city municipal wells and residential areas.  See Appendix O.

                  Note: No environmental justice issues exist at this site.

 

This is a small sample of sites with missed public notice and participation opportunities.

 

 

NFA Errors and Deficiencies Delayed the VAP Process

Text Box: Errors delayed cleanup for up to three and a half years.Fifty percent of the 57 NFA submittals issued “Not to Sue” covenants by the agency contained errors or deficiencies. In some instances, the errors delayed cleanup by as much as three and a half years.  Numerous corrections, reassessments, and resubmittals ultimately prolongs the Ohio EPA review process, increases the number of hours the Certified Professional spends on the NFA, and delays site cleanup and economic redevelopment of the area.  See Appendices C, G, J, L, P, Q, R, and U for documented errors and deficiencies.

 

Examples of sites with errors:

·        GR Klein News Company, Cleveland, OH: Twenty-five defects were found in the NFA, including improper onsite exposure pathways and contamination evaluations.  The site was allowed to withdraw from the VAP prior to cleanup.

      Note: Low-income and minority environmental issues exist at this site.  The average income of the census tract is $13,269—$90 less than the 1990 US Poverty Threshold Income of  $13,359.  In addition, the tract has a 35.5 percent Asian American population, and a 13.3 percent Hispanic population.  Ohio’s average Asian American population is .8 percent, and average Hispanic population is 1.3 percent.

 

·        Text Box: The HWH Property, Ltd., NFA contained 82 deficiencies.HWH Property, Ltd., Lima, OH: The Certified Professional was not certified until four days after the NFA was submitted.  The NFA contained 82 deficiencies, including a missing O&M Plan.  The Covenant was denied. 

      Note: The site is located in a census tract with a higher percentage of Asian Americans (2.3 percent) and Hispanics (15.9 percent) than Ohio’s average Asian American (.8 percent) and Hispanic (1.3 percent) populations.

 

·        Copeland Corporation, West Union, OH: The NFA was missing lab reports and non-compliant documentation.

 

·        Stanley Works, Washington Courthouse, OH: The NFA was returned to the site with 37 comments from Ohio EPA.  Technical assistance from Ohio EPA was eventually required to resolve the deficiencies. 

      Note: The site resides in a census tract with an average income of $21,250—26 percent less than the Ohio 1990 median income of $28,706.

·        Former Swan Dry Cleaners, Worthington, OH: Because the first NFA was found unacceptable by Ohio EPA, a second NFA had to be submitted for the site. Use of a non-certified laboratory was one specific problem.  See Appendix R.

      Note: The site is located in a census tract with a slightly higher Asian population  (2.6 percent) than Ohio’s Asian population (.8 percent).

 

·        Universal Cooperatives, Inc. Lube Plant, Kenton, OH: A non-certified laboratory was used to evaluate samples.  See Appendix P.

      Note: The site resides in a census tract with an average income of $18,766—34.6 percent less than the Ohio 1990 median income of $28,706.

 

·        Federal-Mogul, Gallipolis, OH: Critical documentation was missing from the submittal, including Phase I and II Property Assessment Reports.

      Note: The site resides in a census tract with an average income of $23,067—19.6 percent less than the Ohio 1990 median income of $28,706.

 

·        Kichler Lighting, Cleveland, OH: The NFA, with 43 questions from Ohio EPA, was returned to the site.  The site submitted an addendum to the NFA.

      Note: The site resides in a census tract with an average income of $14,722—48.7 percent less than the Ohio 1990 median income of $28,706.   The census tract also has a higher percentage of Asian Americans (12.9 percent) and Hispanics (15.6 percent) than Ohio’s average Asian American (.8 percent) and Hispanic (1.3 percent) populations.

 

·        Williams Property, Canton Township, OH: Ohio EPA noted deficiencies in the original NFA. The NFA was amended and accepted.  See Appendix G.

      Note: The site resides in a census tract with an average income of $14,441—49.7 percent less than the Ohio 1990 median income of $28,706.   The census tract also has a slightly higher percentage of Black persons (13.7 percent) and American Indians (.5 percent) than Ohio’s average Asian American (10.6 percent) and American Indian (.2 percent) populations.

 

·        Northcliff Shopping Center, Brooklyn, OH: During an audit, Ohio EPA found incomplete documentation.  Initial audit documentation questions the Certified Professional’s compliance with and knowledge of VAP rules.  See Appendix H.

                  Note: No environmental justice issues exist at this site.

 

·        Text Box: The Wellsville Brickyard NFA required three addendums.Wellsville Brickyard, Wellsville, OH: The NFA required three addendums and technical assistance. 

      Note: The site resides in a census tract with an average income of $16,405—42.9 percent less than the Ohio 1990 median income of $28,706.

 

·        Mercury Marine, Gallipolis, OH: Two addendums to the NFA were required before a Covenant was issued.  See Appendix L.

      Note: The site resides in a census tract with an average income of $23,067—19.6 percent less than the Ohio 1990 median income of $28,706.

 

·        Custom Cartons, Hebron, OH: Testing for arsenic was not considered for the original report.  As a result, Ohio EPA requested a meeting to discuss the Certified Professional’s certification. 

      Note: The site resides in a census tract with an average income of $27,327—4.8 percent less than the Ohio 1990 median income of $28,706.

 

·        Lima Locomotive, Lima, OH: Deficiencies in the application led to agency interaction in the process.

                  Note: No environmental justice issues exist at this site.

 

·        Rite-Aid, Columbus, OH: Minimum requirements for a Phase I assessment were not met; for instance, two sections of required information were declared “Not Applicable” by the Certified Professional. 

      Note: The site resides in a census tract with a higher population of Black persons (21.7 percent) than Ohio’s population (10.6 percent).

 

The list represents a sample of the sites with NFA errors and deficiencies and the extent of the errors and deficiencies.  Due diligence on the part of Ohio EPA during routine reviews of the NFA documentation prevented the issuance of a Covenant to properties with such errors and deficiencies.

 

 

Sites Located on or near Critical Resource Aquifers, Rivers, and/or Wells

Text Box: Contaminated sites have been located on critical water resources.Several sites are located on or near critical resource aquifers, rivers, and/or wells.  Because these sites are located on or near critical water resources, cleanup is essential for the protection of public health and the environment.  Examples include:

·        Southern Ohio Port Authority, New Boston, OH: The site is on an aquifer that produces 500 gallons of water a minute.  In the late 1980’s, PCBs and oil were dumped on the property.  Though a press release stated that the soil was removed from the property, contaminated soil was moved from one area of the property to another.  See Appendix F.

      Note: The site’s census tract average income equaled $13,750—52.1 percent less than Ohio’s 1990 median income of $28,706.

 

·        Williams Property, Canton, OH: Ohio Department of Natural Resource logs indicate the site resides on a buried valley aquifer.  High concentrations of PAH and BTEX were found in the soil.  A risk assessment based on cancer risks was performed to minimize exposure to contamination, rather than removing the soil.  See Appendix G.

      Note: The site resides in a census tract with an average income of $14,441--49.7 percent less than Ohio’s median income of $28,706.  In addition, a 13.7 percent Black population and a .5 percent American Indian population resides in this census tract, compared to Ohio’s 10.6 percent and .2 percent populations, respectively.

 

·        White-New Idea Farm Equipment, Coldwater, OH: The site is adjacent to Coldwater, OH, city municipal wells and residential areas. The site contained soil contamination, including dioxin, benzene, lead, and TPH.  Some soil was removed, as well as underground storage tanks.  Contaminated soil found under buildings is controlled by an O&M Plan. See Appendix O.

                  Note: No environmental justice issues exist at this site.

 

·        Area 1 Parcels, Cleveland-Hopkins, City of Cleveland: Abrams Creek runs through this property.  A Phase I assessment indicated no contamination existed above standards.

      Note: A 2.2 percent Hispanic population resides in this census tract.  Ohio’s Hispanic population is 1.3 percent, on average.

 

·        Lima Locomotive Works, Lima, OH: A limestone bedrock aquifer is under the site.  A total of 56 chemicals of concern were detected at the site.  TPH contamination exceeded standards and was addressed in an O&M Plan.  The O&M Plan also required the site to remove contaminated soils.

                  Note: No environmental justice issues exist at this site.

 

·        Miranova Property, Residential Portion, Columbus, OH: The Scioto River is adjacent to the property, and a bedrock aquifer lies underneath.  Chemicals of concern were detected in the groundwater, but found to not have contaminated the river or the aquifer.  A 2.5 feet deep soil cap was placed on the property, which is now a condominium.  Residents are not allowed to dig in the soil.

      Note:  The site resides in a census tract with an average income of $12,794—4.2 percent less than the US Poverty Threshold Income, and 55.4 percent less than Ohio’s median income of $28,706.  In addition, a 42.5 percent Black population resides in this census tract compared to Ohio’s 10.6 percent population.  

 

·        Wells Manufacturing, New Vienna, OH: The site is located on a critical resource aquifer.  A deed restriction limiting the site to commercial/industrial use was implemented because the level of contaminants met generic risk standards for commercial/industrial use. 

                  Note: No environmental justice issues exist at this site.

 

·        I-F Foundry, New Philadelphia, OH: A critical resource aquifer is located 55 feet below the surface.  PAH and metals were found in the soil.  A deed restriction was implemented.

      Note: The site resides in a census tract with an average income of $19,256—32.9 percent less than Ohio’s median income of $28,706.

 

This is a sample of sites located on or near critical resource aquifers, rivers, and/or wells.

 

 

Participation in VAP was not limited to Classic Brownfields Sites

Text Box: Rural contaminated sites are participating in the VAP.The original intent of the VAP was to cleanup contaminated urban sites to promote economic revitalization and investment in urban areas.  In his 1998 State of the State address, Governor George V. Voinovich said, “Ohio is a national leader in voluntary efforts by business to prevent pollution and in acting to cleanup polluted, urban brownfield sites.”  Testimony regarding Senate Bill 221 from Rick B. Van Landingham, the State Conservation Chair of the Sierra Club, noted, “I am personally aware of the need for cleanup of the contaminated industrial sites which litter our urban landscape.  In Toledo, dozens of such sites in my neighborhood alone sit idle, posing a threat to the health, safety and welfare of our citizenry rather than contributing to our local economy.” 

 

As of August 2000, the US Census Bureau census tracts define seven sites in the VAP as 100 percent rural sites.  Thirteen additional sites are between 50 and 97.9 percent rural.  The fact that contaminated sites are entering the VAP for the purpose of cleaning up their sites, regardless of origin, is important. Any cleanup efforts must be encouraged, regardless of the community classification.

 

Examples include:

·        Old Jack Factory, New Vienna, OH

                  Note: No environmental justice issues exist at this site.

 

·        Wells Manufacturing, New Vienna, OH

                  Note: No environmental justice issues exist at this site.

 

·        Custom Cartons, Hebron, OH

      Note: The site resides in a census tract with a $27,327 average annual income—4.8 percent less than Ohio’s 1990 median income of $28,706.

 

·        Montrose Plaza, Montrose, OH

                  Note: No environmental justice issues exist at this site.

 

·        Crabar Business Systems, Leipsic, OH

      Note: The site has a 17 percent Hispanic population, compared to Ohio’s 1.3- percent average Hispanic population.

 

·        Former Kilgore Farms, Westerville, OH.  See Appendices C and K.

                  Note: No environmental justice issues exist at this site.

 

This is a small sample of sites not part of the perceived classic brownfields definition of an urban contaminated site.

 

 

Confusion Existed Regarding Multiple Applicable Standards and Laws

Multiple standards in pre-existing state cleanup programs were created for allowable levels of contamination in soil and groundwater.  With the advent of VAP standards, overlapping standards were inevitable, creating confusion for sites that are making a good faith effort to cleanup their sites.  See Appendices H and S for supporting documentation.

 

Examples of sites where standards were in conflict or were confusing include:

·        White-New Idea Farm Equipment, Coldwater, OH: No VAP rules existed for pentachlorolphenol and dioxin.  See Appendix O.

                  Note: No environmental justice issues exist for this site.

 

·        OC Fiber-Lite Corporation, Hebron, OH: Underground storage tanks on the property prohibited the site from entering the VAP under existing rules.

                  Note: No environmental justice issues exist for this site.

 

·        Chilcote Company, Cleveland, OH: Groundwater contamination existed at this site.

      Note: This property resides in a census tract with average income of $12,361—7.4 percent less than the US Poverty Threshold Income of $13,359.  In addition, a 23.6 percent Asian population lives in this census tract, a far greater average than Ohio’s .8 percent average population.

 

·        3M Quarry Area, Copley, OH: Highly contaminated sections of the soil were sent for RCRA disposal. See Appendix T.

                  Note: No environmental justice issues exist for this site.

 

Text Box: The VAP is in direct conflict with ORC Section 6111, Water Pollution Control.Of great concern is a conflict between Ohio Revised Code Section 6111, Water Pollution Control, and the VAP.  Section 6111.01 (A) states that “’Pollution’ means the placing of any sewage, industrial waste, or other wastes in any waters of the state.”  Subsection (H) says “’Waters of the state’ means all streams, lakes, ponds, marshes, watercourses, waterways, wells, springs, irrigation systems, drainage systems, and all bodies or accumulations of water, surface and underground….”  Section 6111.04 declares,

 

“No person shall cause pollution or place or cause to be placed any sewage, industrial waste, or other wastes in a location where they cause pollution of any waters of the state…except in such cases where the director of environmental protection has issued a valid and unexpired permit…The director shall prescribe by rule a reasonable filing period within which applications may be filed to obtain permits for existing discharges that have not been authorized by permit.” 

 

Amended Substitute Senate Bill 221 and VAP Administrative Rules do not require sites with groundwater contamination to obtain permits per requirements outlined in Section 6111.  The laws are in direct conflict. 

 

 


Recommendations

Based on the findings outlined above, we propose the following recommendations to improve the VAP.  The recommendations are intended to serve as a guide to the legislative and rulemaking parties to fix deficiencies in the VAP. In addition, the findings and recommendations have immediate relevance to, and should be considered, in all Issue 1 discussions due to a projected workload increase in the VAP.

·        Transform the VAP into a US EPA-approved brownfields cleanup program by addressing public participation, government oversight, and enforcement requirements.

·        Institute a Certified Professional Training and Testing Program.

·        Provide financial incentives solely to communities with environmental justice concerns.

·        Address offsite contamination as required by Ohio’s Revised Code.

·        Increase Ohio EPA financial and personnel resources for the VAP.

·        Coordinate applicable standards and laws to minimize confusion and maximize cleanup.

·        Clarify Ohio EPA authority under the VAP to establish and enforce consequences for sites that 1) do not enter a cleanup program; 2) enter and withdraw from the VAP without cleanup and/or 3) fail to complete the process within two years of notice of intent.

·        Eliminate institutional and engineering controls as acceptable cleanup activities.

·        Eliminate the Urban Setting Designation.

 

 

Transform the VAP into a US EPA-Approved Brownfields Cleanup Program

The existing VAP process does not facilitate the cleanup of contaminated sites in Ohio and must be modified:

·        The current VAP process does not meet the following US EPA MOA requirements in areas of public participation, government oversight, and enforcement:

1.      Provides opportunities for meaningful community involvement.

2.      Provides adequate oversight to ensure that voluntary response actions are conducted in such a manner to assure protection of human health and the environment, as described above.

3.      Shows the capability, through enforcement or other authorities, of ensuring completion of response actions if the volunteering party (ies) conducting the response action fail(s) or refuse(s) to complete the necessary response actions, including operation and maintenance or long-term monitoring activities.

 

·        The focus of the existing VAP process has been economic redevelopment and job creation, rather than the protection of human health, the environment, and environmental justice.

 

·        Limited success was obtained for sites in environmental justice areas.

 

·        Cleanup efforts were hampered by errors in the NFA process; extensive documentation errors required Ohio EPA intervention and assistance.

 

·        Current administrative rules allow sites to limit human exposure opportunities rather than cleanup contaminated sites.

·        Sites may withdraw from the VAP before cleanup without penalty.

 

·        Confusion and conflict exists among standards and laws related to brownfields cleanup efforts.

 

A perception of the existing VAP process is that it allows “polluter secrecy”.  The concern is that a site owner could contract with a Certified Professional to examine their site and find that it too expensive or extensive to cleanup.  The perception is that information is privileged between the site owner and the Certified Professional and will never be disclosed to the public.  Though there are no documented cases known to the authors of this report of property owners “hiding” behind privileged information, the perception remains that the process makes it easy to hide contamination problems from the public.    

 

Text Box: The proposed US EPA-OEPA MOA is not adequate.The opportunity to sign an MOA between the United States EPA and Ohio EPA has resulted in proposed changes to the existing VAP process.  The proposal can be found on th Ohio EPA Web site.  The latest proposed MOA available for public review is an April 18, 2000 version; though a later version does exist, it is not available for public viewing.  Our recommendations below are based on the April 18, 2000, version. 

 

The proposed April 18, 2000 MOA Application is not adequate.  The Ohio EPA has proposed a two-track system to address US EPA MOA requirements. 

 

·        The first track follows today’s classic VAP program—minimal oversight and public participation.  Based on a May 24, 2000 personal interview with the VAP Program Manager, the “Classic VAP” is supposed to be further streamlined, subject only to a checklist review—though this is not reflected in the MOA Application. 

 

·        The second track, called the VAP MOA Track, requires participants provide a Notice of Entry to Ohio EPA of their participation, provide notice to the public of the site and its intended cleanup, and an initial investigation. Subsequent to a Phase I and Phase II Sampling Plan, the participant prepares an Eligibility Determination Report.  Agency staff will review documentation and visit the site for consistency of information purposes.  A Phase II investigation is then conducted and a report prepared.  If necessary, a risk assessment is conducted.  The agency will again review all applicable documentation.  If the site meets standards, the agency will direct the participants to prepare an NFA Letter.  If the site does not meet standards, the participants must develop a Remedial Action Work Plan and an O&M Plan.  Ohio EPA will then review the plans, and the remedy will be implemented.  The participant must document all changes to the original documentation and plans.  Once submitted, the NFA is reviewed by agency staff and either approved or denied.

 

While Ohio EPA should be applauded for the proposed changes, we still have serious reservations with a two-track system.  Based on our findings in the VAP Study, we believe:

·        The “Classic VAP Track” must be discontinued, whether the MOA is signed or not. Streamlining the existing cleanup process in any form is unsafe based on the numbers of errors and deficiencies and other findings documented in this report.

 

·        A strengthened and revised “VAP MOA Track” should be the model for the Ohio EPA brownfields cleanup program: 

¨      The Draft Memorandum of Agreement Application, April 18, 2000 proposes that any site subject to Ohio Revised Code 6111, Water Pollution Control, should be excluded from the MOA Track.  Loosely interpreted, only sites with soil contamination will be able to participate in the MOA Track should this exclusion be accepted.   Under this arrangement, groundwater contaminated sites would have to participate in the “Classic VAP” Track.  This line should be stricken from the US EPA – Ohio EPA MOA; groundwater contamination should receive the same rigorous review and oversight as soil contamination. 

¨      While the MOA Track provides public notice opportunities, it should be strengthened to increase public participation and interaction opportunities for sites with known soil and/or groundwater contamination.  This aspect of the new process addresses the “polluter secrecy” perception.  Most importantly, citizens should be afforded the opportunity for meaningful participation in a VAP remedy, particularly when offsite contamination and groundwater contamination exist as potential public health and environmental impacts to their communities.

 

Public notification requirements found in Amended Substitute Senate Bill 221, Section 3746.15 for an application for permits and Rule 12 of the Administrative Procedures governing a request for a variance of standards should be applied to all phases of the VAP.  The process:

1.      After receipt of the Phase I and II sampling plan, the director should publish a meeting notice, including date, time, and location, in the newspaper of general circulation in the affected site’s county.  The announcement should give interested citizens 30 days notice of the meeting.  Any persons may submit oral or written comments, questions, or objections to the proposed cleanup. 

2.      Representatives of the Ohio EPA and the site’s lender, developer, and/or property owner shall be present at the public meeting to respond to questions, comments, and objections. 

3.      After consideration of all parties’ concerns, the director should submit the decision to authorize or deny the Covenant. 

4.      In addition to public notification and meetings, the Ohio EPA should provide written notice to the political subdivision, such as counties, townships, villages, and cities, and all adjacent property owners to the site beginning the VAP process.  Notice should be given prior to the start of the Phase I property assessment so that interested parties have the opportunity to monitor and observe all actions relevant to their property. 

 

For those sites that have passed a Phase I investigation without findings of concern, public notice is sufficient.  This will allow sites with simple investigations to move through the process quickly, serving as a “fast track” substitute for the “Classic VAP”.  

¨      Based on the findings from the current cleanup program and US EPA MOA criteria, enforcement must be addressed in the MOA Track.  Fourteen of 111 sites have withdrawn from the program prior to cleanup and without penalty or enforcement; two have re-entered the program and received Covenants.  In addition, four Covenants have been denied by the Ohio EPA; three have resubmitted documentation and received Covenants at a later date. 

 

The VAP program, the public, and environment will benefit from the modification of the Ohio EPA VAP to meet US EPA MOA requirements.  Financial assistance from the US EPA can help control the deficit that currently exists in the program.  Sites with soil and/or groundwater contamination will undergo a cleanup process with rigorous government oversight, public participation, and if necessary, enforcement activities to ensure that public health and the environment are adequately addressed.  Further, cleanup of sites in economically disadvantaged areas will facilitate development and increase job opportunities while addressing relevant environmental, human health, and environmental justice issues. 

 

Since both the Classic VAP and the MOA Tracks are a part of the MOA Application, US EPA should be concerned with the minimal oversight, public participation, and enforcement aspects of the proposed changes.

 

 

Institute Ohio EPA-Directed Certified Professional Training and Testing Program

The US EPA MOA criteria asserts that the state of Ohio must “Provide adequate oversight to ensure that voluntary response action conducted in such a manner to assure protection of public health and the environment….”  A training and testing program will help fulfill the “adequate oversight” requirements outlined in the criteria.

 

Text Box: A training and testing program is essential to any TQM program. Under the Ohio EPA-proposed VAP MOA Track, the Certified Professional is still critical to the cleanup process.  In order to minimize errors and deficiencies in NFA Letters and supporting documentation and decrease delays in the cleanup process, Ohio EPA should create and administer a training and education program for Certified Professionals involved in the Ohio VAP.  When such diverse backgrounds are allowed for certification, it is inevitable that confusion regarding the process and standards exists.  A proficient Certified Professional is an asset to the property owner, lender, or developer; their expertise will minimize the number of billable hours from the Certified Professional and the Ohio EPA needed to complete property assessments and its supporting documentation.  A proficient Certified Professional is also an asset to the Ohio EPA; the reliance on and need for technical assistance should decrease with a comprehensive testing and training program.  Finally, due to the extensive proposed changes to the VAP, a comprehensive training and testing program is essential to the success of a new US EPA – Ohio EPA Brownfields Cleanup Program.

 

Furthermore, Amended Substitute Senate Bill 221, Section 3746.04 (B)(5)(c)(v) requires the director, Ohio EPA, to verify that the Certified Professional is proficient or else deny certification.  The requirement provides justification for funding a Certified Professional training and testing program.

 

Emphasis must be made that a thorough training and testing program cannot replace Ohio EPA oversight. The agency should perform a quality assurance check on all site documentation, consistent with industry norms for quality control found in all TQM-run organizations. 

 

Our recommendations are based upon review of the extensive information required and found in current NFAs and supporting documentation.  See Appendices C, G, I, J, K, L, P, Q, R, and U.

 

Training

In addition to the criteria found in the US EPA MOA, Amended Substitute Senate Bill 221, Section 3746.04 (B)(5)(c)(v) requires the director, Ohio EPA, to verify that the Certified Professional is proficient or else deny certification.  An annual training program, a supplement to the required 24 hours of annual professional education, will aid Ohio EPA directors in performing their duties as required by Section 3746.04 (B)(5)(c)(v).  The training program should include:

·        Instruction on the US EPA – Ohio EPA MOA requirements and any rules changes that occur as a result of the MOA. 

·        Ohio Revised Code 3746, The Voluntary Action Program and Rule 3745, Information Required for the NFA Document, should also be included in training, until or unless they are superceded by MOA rules changes. 

·        Because it is such a critical aspect of the VAP, the public notification and participation process should also be included in the training program. 

·        Authorized Ohio EPA laboratories, Certified Professional requirements, and other applicable information that will ease the NFA process for the Certified Professional and the Ohio EPA should be included. 

 

Ensuring proper training can also ease the threat of civil liability from improperly rehabilitated sites for the property owner, lender, and/or developer, as well as Ohio EPA.

 

Testing

To provide a comprehensive review of the knowledge needed to conduct Property Assessments, Certified Professionals should be tested on the following subjects:

·        US EPA – Ohio EPA MOA requirements and any rules changes that occur as a result of the MOA

·        Ohio Revised Code 3746, The Voluntary Action Program

·        Rule 3745, Information Required for the NFA Document

·        Certified Laboratory information

·        Removal and containment technologies

·        Hydrogeology

·        Toxicology

·        Sampling methodology

·        Risk assessment 

 

The test should cover all subjects, regardless of the Certified Professional’s background. To date, no testing or training occurs in the Certified Professional validation process.

 

 

Sites Meeting Executive Order on Environmental Justice Criteria Should be Given Priority for Financial Incentives

Text Box: An outreach campaign must be conducted so these communities are aware of incentives.Government-sponsored financial incentives, in the form of tax credits, loans, and/or grants, should be reserved for sites meeting criteria found in Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations.  The Order emphasizes that Federal agencies should “promote enforcement of all health and environmental statutes in areas with minority populations and low-income populations.”  That standard should be applied to both Federal- and State-sponsored financial incentives for brownfields redevelopment. 

 

Within the state of Ohio, the availability of tax credit authority should be heavily marketed and advertised to environmental justice populations so they are aware of the financial incentives available to clean up local contaminated sites.  A significant amount of tax credit authority, $29,242,669.21, was lost on July 1, 1999 because the authority expired.  It should not have occurred when contaminated sites with environmental justice issues exist.  See Appendix D.

 

 

Address Offsite Contamination as Required by Ohio’s Revised Code

Text Box: Ohio Revised Code requires investigation for offsite contamination.Section 3746.04 B(3)(b) must be enforced to include lands within 2000 feet of the boundaries of sites with suspected contamination.  Property owners adjacent to sites undergoing the VAP must be informed of the action and should be given due process to address their concerns about suspected contamination.  Without input from adjacent property owners into cleanup efforts, a Covenant given to a property owner limits the ability of adjacent property owners to recover the cleanup expense from offsite contamination.  See Appendices H and O.

 

 

Increase Ohio EPA VAP Resources

Though admirable, the concept that the VAP will be financially self-sustaining has been disproved.  The Draft Memorandum of Agreement Application, April 18, 2000, indicates the program intends to rely upon state revenue funds and US EPA grants as subsidies for future funding.  It should be recognized that the program would not be self-sustaining so that proper funding may be found and given.  Without recognition that the program is not self-sustaining, resistance to funding will continue. 

 

Financial

·        Flat rate fees for NFA Letters, Operations and Maintenance Plans, Property Assessments, and Certified Professional applications and renewals should be eliminated from the program.  First, the fees give the appearance of “buying” participation in a government program, standards variances, inadequate risk assessments, and improper cleanups. In addition, the flat rate fees do not provide sufficient revenue for the VAP to be a self-sustaining program. 

 

·        In lieu of flat rate fees, a timekeeping program should be implemented for the program.  The proposed US EPA – Ohio EPA MOA indicates that a system is already in place to facilitate the change, and will be utilized should the MOA be signed.  Ohio EPA VAP staff should track the amount of time spent on each site.  Based on an hourly rate, a bill for time spent on direct costs and indirect costs should be submitted when the Covenant is released.  An effective timekeeping and billing system will help the remedy the financial state of the program. 

 

·        Technical assistance should be eliminated from the VAP.  It is difficult to argue that personnel resources are limited when technical assistance is available and has been used. If personnel resources are truly limited, staff time should be spent conducting regular duties; technical assistance would not be feasible in cases of limited personnel.  More importantly, eliminating such a paid consultant practice is essential to maintaining the agency’s reputation for independent and unbiased review of the VAP review and cleanup process.

 

·        The Final Report and Recommendations of the Advisory Committee for DHWM and DERR, dated August 14, 1998, found that the Director, Ohio EPA, should be “seeking bonding capacity to use general revenue funds to establish a state cleanup fund backed by enhanced authority” to recover cleanup fees from generators and transporters, and recalcitrant responsible parties.  The recommendation is still applicable to the VAP.

 

·        The VAP MOA Track indicates that a request for increased US EPA grant money has been made to fund the anticipated increase in participation.  Today, Ohio EPA receives $400,000 from federal grants for brownfields related activities per year.  Approximately $150,000 provides subsidized technical assistance for “financially strapped sites held in the public interest”.  Another $250,000 is used for program and policy development.  Ohio EPA has requested that the grants be increased to $950,000.  However, financial assistance in any form is not guaranteed.  Contingency plans must be made to conduct the VAP MOA Track without additional funding in order to guarantee success and the future of the program. 

 

Personnel

·        Agency staffing requirements are difficult to gauge because Ohio EPA is unaware of programs entering the VAP until the NFA Letter and supporting documentation arrive.  The VAP MOA Track includes written notification to Ohio EPA of VAP participation prior to any activities.   The notice will eliminate uncertainty and aid justification for increased personnel.

 

·        In order to implement requirements in an US EPA - Ohio EPA MOA, EPA VAP Program Director Amy Yersavich estimates a total of 22-24 Full Time Equivalent persons are required to conduct the VAP MOA Track, an increase of seven to nine persons.  However, increased personnel require increased funding, which is not guaranteed even if the US EPA – Ohio EPA MOA is signed.  Contingency plans must be made to conduct the VAP MOA Track without additional personnel funding in order to guarantee the future of the program.

 

See Appendices C, G, I, J, K, L, P, Q, R, and U.

 

 

Coordinate Applicable Standards and Laws to Minimize Confusion and Maximize Cleanup

Text Box: Good customer service minimizes confusion. Resolution of standards differences would facilitate the cleanup process for Certified Professionals.  Without resolution of differences, the Certified Professional is reduced to “guessing” which standards are supposed to be applied in the VAP.  This “guessing” induces errors and deficiencies in the NFA, increases billable hours for the site owner, and generates animosity towards the VAP.  One such conflict in standards is the applicability of Ohio Revised Code 6111, Water Pollution Control, to the VAP.  The VAP MOA Track, as currently written, excludes sites that are under jurisdiction of Ohio Revised Code 6111, Water Pollution Control.  However, Section 6111 states that any sites with groundwater contamination issues cannot be excluded from the jurisdiction of Section 6111.  Therefore, VAP sites with groundwater contamination would fall under the jurisdiction of Section 6111.  Ultimately, this discrepancy must be resolved prior to the signing of the US EPA MOA. 

 

 

Clarify Ohio EPA Authority to Establish and Enforce Consequences

Ohio EPA should be granted authority to:

1. Assess, classify, and prioritize brownfields sites in Ohio.  The list should be used to enforce cleanup orders on those sites that do not take advantage of the VAP’s expediency and efficiency for revitalization.

2.  Penalize those sites that withdraw from the VAP prior to cleanup

3.  Penalizes those sites that fail to complete the process within two years of notification of intent.

 

Sites withdrawing from the VAP prior to cleanup create several issues:

·        Ohio EPA resources have been expended to review NFA Letters and other documentation without resolution.

 

·        The site is not cleaned up, further postponing improvements to public health and the environment, economic redevelopment of the area, job creation, and environmental justice.  

 

·        In cases where government money was provided as an incentive, sites receiving financial assistance in the form of grants and loans specifically for the VAP squander the money.  This money could have been provided to other sites that would have used the incentive as it was intended.

Text Box: OEPA enforcement is a strong incentive for participation in the VAP.

A balance must be made in establishing consequences for withdrawal.  The VAP must remain an attractive option for cleanup so sites are rehabilitated.  However, a deterrent must be established in order to address public health and the environment, economic redevelopment of the area, job creation, and environmental justice.  Other states have strong enforcement divisions that serve as an incentive for participation in their voluntary cleanup programs.  Therefore, we recommend the following improvements to encourage completion of the cleanup process:

·        Ohio EPA must be given legal authority to create a priority list of brownfields sites for cleanup.  The priority list should be made available to the public for informational and participation purposes.  Enforcement procedures, such as those authorized by Ohio Revised Code 6111, Water Pollution Control, should begin based on the prioritized list.  Enforcement exceptions should only be made for sites actively involved in a voluntary cleanup program.

 

·        If a site has not completed an NFA Letter and its supporting documentation to Ohio EPA within two years after receipt of written notice of intent to participate, a bill for Ohio EPA resource expenditures will be sent to the contact. 

 

·        All contracts for grants and/or loans made by the state of Ohio for activities related to VAP cleanup must contain a clause guaranteeing the site will complete all necessary activities.

 

 

Eliminate Institutional Controls and Limit Engineering Controls as Acceptable Cleanup Activities

Text Box: Clean up, rather than cover up, Ohio’s contamination.Limiting future property uses through deed restrictions and engineering controls fail to cleanup contaminated sites; they simply define maximum allowable human exposure rates to contamination.  Ohio’s Voluntary Cleanup and Redevelopment Program should be cleaning up contaminated sites, not avoiding cleanup through the use of institutional and engineering controls: 

 

·        The use of institutional controls begs the question, “What is the vision for future of the state of Ohio?”  With 57 Covenants issued to VAP sites, 17,526 acres of groundwater have been defined as Urban Setting Designators; another 525 acres of groundwater and 828 acres of land have restrictions through institutional controls.  Each site with a Covenant averages 15 land, nine groundwater, and 302 Urban Setting Designation groundwater acres with use restrictions.  Should the VAP continue as a program, increasing numbers of Ohio’s land and groundwater will have restrictions on their use.  How many acres of Ohio’s land is the state willing to restrict to industrial use?

 

      The question of eliminating institutional controls is tricky; standards for contamination are based upon residential and industrial use standards.  By questioning the need for institutional controls, we again ask, “How clean is clean?”  We also invite debate on whether the standards should implement a new baseline, eliminating industrial use standards.

 

      Under Minnesota’s brownfields cleanup program, deed restrictions are not an allowable cleanup method.  Despite the difficult questions raised by the use of institutional controls, Ohio should follow Minnesota’s example and eliminate institutional controls as an acceptable cleanup method. 

 

·        Engineering controls such as caps, pavement, landscaping, and fences should be removed as acceptable cleanup activities.  Again, the program is titled Ohio’s Voluntary Cleanup and Redevelopment Program; the use of caps, pavement, landscaping, and fences are merely covering up contamination and limiting exposure, rather than cleaning it up. 

 

 

Eliminate the Urban Setting Designation

Text Box: The USD is in direct conflict with Section 6111, Water Pollution Control.Ohio is the only state in US EPA Region 5--made up of other industrial states such as Illinois, Indiana, Minnesota, Wisconsin, and Michigan--to issue an Urban Setting Designation (USD).  The only location within Region 5 with a designation similar to the USD is found in the Chicago area.  The USD should be eliminated from the VAP for two reasons:

·        It is in direct conflict with Section 6111, Water Pollution Control, of the Ohio Revised Code.  The conflict can only be resolved by issuing permits for contaminated groundwater.

 

·        Groundwater is a dynamic resource; it is constantly moving.  Because of its dynamic state, contaminated groundwater is likely to come in contact with other critical resource aquifers and municipal wells.  The USD unnecessarily and unconscionably exposes populations dependent on those resources to contamination. 

 


References

 

About VAP.  Available: http://www.epa.state.oh.us/derr/vap/aboutvap/aboutvap.html

Ohio EPA Division of Emergency & Remedial Response.  1997 Master Sites List Report. 

US Census Bureau Access Tools.  Available: http://www.census.gov/main/www/access.html

US Census Bureau Poverty Thresholds.  Available: http://www.census.gov/hhes/poverty/threshld.html

Summary of NFA’s Received and Covenants Issued.  Available: http://www.epa.state.oh.us/derr/vap/nfa/nfa.html

Voluntary Action Program Rules.  Available: http://www.epa.state.oh.us/derr/vap/rules/Vaprules.html

Voluntary Action Program Fees.  Available: http://www.epa.state.oh.us/derr/vap/rules/rule_3.pdf

Phase I Property Assessment.  Available: http://www.epa.state.oh.us/derr/vap/rules/rule_6.pdf

Phase II Property Assessment.  Available: http://www.epa.state.oh.us/derr/vap/rules/rule_7.pdf

Generic Numeric Standards.  Available: http://www.epa.state.oh.us/derr/vap/rules/rule_8.pdf

Property-Specific Risk Assessment Standards.  Available: http://www.epa.state.oh.us/derr/vap/rules/rule_9.pdf

Variance from Generic Numerical Standards or Property-Specific Risk Assessment Procedures.  Available: http://www.epa.state.oh.us/derr/vap/rules/rule_12.pdf

Audits of No Further Action Letters.  Available: http://www.epa.state.oh.us/derr/vap/rules/rule_14.pdf

Remediation.  Available: http://www.epa.state.oh.us/derr/vap/rules/rule_15.pdf

Urban Settings Designations.  Available: http://www.epa.state.oh.us/derr/vap/usd.html

Ground Water Frequently Asked Questions #15: Urban Setting Designations Notification Letter Purpose of USD and Standards.  Available: http://www.epa.state.oh.us/derr/vap/faq/gwfaq15.pdf

Ohio EPA Financial Assistance for Voluntary Action Program Remediations Number 5.  Revised April 1998.  Available: http://www.epa.state.oh.us/derr/vap/factsheets/fact5.html

Voluntary Action Program: Senate Bill 221 Number 1.  Revised December 1997.  Available: http://www.epa.state.oh.us/derr/vap/factsheets/fact1.html

Ohio’s Voluntary Cleanup and Redevelopment Program: A Report from Governor George V. Voinovich.  April 1998.  Available: http://www.epa.state.oh.us/derr/vap/gov_rept/vapgov.pdf

Summary of Program’s Financial Status.  Available: http://www.epa.state.oh.us/derr/vap/leg_report/financia.html

State of the State Address Governor George Voinovich February 10, 1998.  Available: http://www.nga.org/Releases/speeches/1998Ohio.htm

Interim Approaches for Regional Relations with State Voluntary Cleanup Programs.  Available: http://www.epa.gov/swerosps/bf/html-doc/vcp.htm

Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations.  Available: http://www.epa.gov/swerosps/ej/html-doc/execordr.htm

State of Ohio Environmental Protection Agency.  1993-2 Edition.  Volume Three: Laws/EBR Procedure Decisions.  Cincinnati, OH: Anderson Publishing Company. 

Index to Memoranda of Agreement Application.  Available: http://www.epa.state.oh.us/derr/vap/moa/moarev.pdf

The American Heritage Dictionary Second College Edition. (1982). Boston: Houghton Mifflin Company.

NJDEP—SRP Brownfields Update 1998 – Section 2 - .  Available: http://www.state.nj.us/dep/srp/publications/brownfields/1998/98brownf02.htm

RE: VIC.  Personal Communication November 6, 2000.