Welcome to the World of AUL Avoiding the voidance of your CNS

Risk-Based Assessment Pathway Completeness Determination – Current and “reasonably-anticipated” pathways – Must consider future pathways a complete pathway All complete pathways require a remedy, unless applicable standards are met

Implementing Remedies Remedies allowed by VAP include: – Active remedies – Passive remedies – Engineering controls – Institutional controls – A few other special cases, e.g. risk mitigation measures, interim measures, critical resource ground water activities

Vapor Intrusion (VI) Risk Presence of volatile compounds, e.g. PCE, TCE, vinyl chloride, or benzene Concentrations measured in soil gas or ground water exceed VI screening values If buildings are present, sub-slab and/or indoor air samples usually collected What if no building is present?

What is the anticipated end use of the property? Is development with new buildings anticipated? What remedies are available to address VI pathways?

Remedies for VI Risk Treatment of soil or ground water to reduce concentration of volatile chemicals Engineering controls to prevent vapors from intruding into a building Legal restrictions to prevent exposure within new buildings

Future Development “Catch 22” Remedy must be “in-place” prior to receiving a CNS from Ohio EPA for all complete pathways Definition of complete pathway includes “reasonably anticipated” pathways, e.g. future buildings How can a remedy for future buildings be “in-place,” if a CNS is needed prior to building?

Options Implement an active remedy Legally restrict the areas where buildings are allowed to be built Delay issuance of NFA Letter until after buildings are built with engineering controls Include an “occupancy restriction” in the environmental covenant for the property

Occupancy Restriction Included as an activity and use limitation in a recorded environmental covenant A defined areas of property where an occupied building is not allowed unless… – Completion of an engineering control under an O&M Agreement; or – Demonstration attested to by a CP that applicable standards are met for the VI pathway

Frequency of Occupancy Restrictions Number of CNS with occupancy restrictions – 29 out of 220 CNS (~ 13%) – Most after 2011 Number of CNS with “no-build” restrictions – 22 out of 300 CNS (~ 7%) – Most before 2011

How is Occupancy Defined? Occupancy occurs when the building is open for its intended use, e.g. – Office building or industrial facility: employees use it for regular business functions – Residence: people begin to reside in it – Retail establishment: open for public use

Caution Violation of institutional controls voids a CNS – No opportunity to correct mistakes Read and under stand the legal language in the occupancy restriction – Known as the activity and use limitation (AUL) – Ask for help if you are unsure or even if you think you are sure

Steps for Occupancy Be familiar with each AUL on the property and the locations where the AUL applies Determine if an engineering control is needed – What to do if one is needed? – What to do if one is not needed?

Steps for Occupancy If engineering control is not needed… – CP must attest in an affidavit to the agency that the property complies with applicable standards for the VI pathway without the need for further remedy – Occupancy can occur anytime after the affidavit is received by the agency – Agency approval is not needed prior to occupancy – May consider optional TA to be sure

Steps for Occupancy If engineering control is needed… – Engineering control must be built – An O&M Plan and Agreement must be submitted to the agency for review – Address Ohio EPA comments and finalize documents – Submit final documents for approval – Receive agency approval – Occupy the building

Why so many steps? Language of the AUL reads… – “…a remedy…installed, operated and maintained as an engineering control under an [O&M] agreement…” – The engineering control is not operated and maintained under an O&M agreement until it is approved by the agency

Agency Approval Modifying an existing O&M plan – Means Director already signed O&M agreement – Many O&M agreements allow the VAP manager to approve modifications to an O&M Plan – Final modified O&M plan is needed – Fast approval by VAP manager once technical review is complete

Agency Approval When an O&M Agreement doesn’t already exist – A new O&M Agreement and O&M Plan must be reviewed and approved – Requires Director’s approval of a new O&M Agreement and a modified CNS prior to occupancy – Expect more time to receive director’s signature – Recording of modified CNS can occur after occupancy

CNS with “No-Build” Restrictions Prior to 2011, “no-build” restrictions were used as VAP institutional controls Prior to construction, the institutional control must be replaced with a new Environmental Covenant that allows building construction Post-CNS remedy change (or remedy revision) – See OAC (H)

Time Frame for Occupancy CNS has occupancy restrictions: If O&M Agreement allows O&M Plan modification – Expect 2 to 3 months – Major task: Agreement on new O&M plan If O&M Agreement does not allow O&M Plan modification (or no Agreement exists) – Expect 3 to 4 months – Major tasks: Agreement on new O&M Plan, O&M Agreement, receipt of signed documents, Director sign-off on O&M Agreement and amended CNS

Time Frame for Occupancy CNS has “no-build” restrictions: Remedy revision required to change institutional control – Expect 2 to 3 months – Major task: Agreement on new Environmental Covenant, receipt of signed documents, Director sign-off on Environmental Covenant and amended CNS Proceed with steps for CNS with occupancy restrictions – See previous slide for time frames