The State

of Ohio’s Voluntary Action Program:

Summary Findings and Recommendations

 

Greene Environmental Coalition

P.O. Box 266

Yellow Springs, OH 45387

www.greenlink.org


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.