VAP Rules – 2014 Proposals Peter Whitehouse, Assistant Chief

VAP Rules – 2014 Proposals Peter Whitehouse, Assistant Chief
Tiffani Kavalec, ACRE Manager Eric Sainey, VAP Lead Worker Division of Environmental Response & Revitalization

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Stakeholder Mtg Schedule
Stakeholder Mtg Schedule November 21, 2013: 1-5pm W.W. Knight Nature Center: Hankison Great Room 29530 White Rd, Perrysburg Ohio 43551 December 5, 2013: 1-5pm Nelsonville Library 95 W. Washington Street Nelsonville, OH December 10, 2013: 1-5pm Ohio Peace Officer Training Academy 4055 Highlander Parkway - Suite B Richfield, OH 44286 December 12, 2013: 1-5pm City of Mason – Public Utilities 3200 Mason-Morrow-Millgrove Road Mason, OH 45040 December 17, 2013: 1-5pm Delaware County Board of Elections 2079 U.S. Highway 23, N #4 Delaware, OH 43015

Input Received Program can be very expensive
Covenant not to Sue (CNS) process is too slow Projects getting audited twice How do we change the remedy post CNS Will pay more if the process was faster Rely more heavily on CPs Rules are complicated and can be difficult to follow Tax incentives need to be revised – not addressed

OAC Definitions Proposed changes for the 5-year rule review Clarifications and additions to support revisions to other rules

Proposed changes for the 5-year rule review
OAC Eligibility Proposed changes for the 5-year rule review

VAP 5 Year - Rule 02 - Proposals
Other BUSTR Sites Eligible for VAP VAP Rule 2 changed to match statutory changes Rule (B)(6) incorporates the matching changes Additional BUSTR sites are eligible if: The volunteer is not a responsible person as determined by the Fire Marshal (BUSTR); and Voluntary action also addresses hazardous substances or petroleum not subject to BUSTR corrective action; and The Fire Marshal has not issued an order to address the release or referred the matter to the Attorney General

Sufficient Evidence Demonstration Requirements In response to an Enforcement Letter, PRPs may submit for review and approval by the Agency, documentation demonstrating that they previously entered into and are proceeding expeditiously in the VAP Clarifying terms found in Rule 2 “Entry into the VAP” “Proceeding Expeditiously” “Milestones”

In order to receive an Enforcement Letter from Ohio EPA, our typical process includes: Gain access from property owner for Phase I; Perform Phase I and site walkover; Review Phase I to determine need for Phase II; Gain access from property owner for Phase II; Perform field work/sampling; Evaluate data; Develop Enforcement Letter **Exception = RCRA 2020 sites

Since 1997, VAP has received 15 Sufficient Evidence demonstrations Six were denied entry in to the VAP

The concept, “Entry into the VAP” would be defined to mean……….commencing a voluntary action by: Completed a Phase I Retained a CP to conduct the voluntary action Conducted activities in accordance with the 30 & 60 day submittals Summary of planned activities Schedule for completion of each milestone in the Phase II Documentation of recent and ongoing activities

The concept, “Proceeding Expeditiously” would be defined to mean: Conducting a voluntary action through the achievement of milestones which address the release or threatened release of hazardous substances or petroleum identified in the enforcement letter within a three year period, unless otherwise established by the director. Three year period considerations include: analogous programs (e.g., COF (30 months)) Addresses the concern of open-ended and unreasonably long schedules for priority enforcement sites

Propose to define “Milestones” to include: Assessment of releases or threatened releases of hazardous substances or petroleum identified in the enforcement letter Completion of certain Phase II property assessment activities Completion of a Phase II report Completion of a risk assessment Completion of a remedial action plan Completion of remedies Submittal of a NFA letter to the director

Progress Reports Currently, progress reports are submitted upon completion of milestones or every 6 months As proposed, reports would be due every 3 months

Proposal for schedule change approval Currently, reports simply include updates to changes on milestone target and actual completion dates As proposed, changes to milestone target dates in reports would require an explanation for schedule changes and be subject to Ohio EPA approval

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

Expeditious Progress Review / Notice of Enforcement Action As proposed, rule 2 would require the director to provide written notice of the intent to proceed with an enforcement action (due to lack of expeditious progress) The Agency’s ability to review and approve schedules / schedule modifications will help ensure that Volunteers address the threats to human health and the environment at these prioritized sites in a expeditious manner

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

OAC Fees Proposed changes for the 5-year rule review

VAP Costs – 2012

New NFA Template Modeled new NFA fee assuming documentation would be the size of a Phase I $3,270-$6,870 Average time to review and process was actually 100 hours x $ per hour = $10,000 Hourly Rate (averages rate $33.52) $ Fringe (35.50%) $ Overhead Rate $ Total Hourly Rate $

NFA review fees cover: Review of NFA Letter (Site Coord, GW, Risk, Legal), including O&M, EC, notice of deficiency letters (INOD/FNOD), preparing CNS documents Tier I Audit (average 13 per year) $130,780 / 36 $3,600 Tier II Audit (average 3 per year) $75,180 / 36 $2,100 NFA Flat Fee = $15,700

Institutional Control 5 Year Inspections (10-15 hours each) Helps cover agency costs for 2 inspections or 10 years worth 25 hours = $2,500 NFA Fee with Environmental Covenant = $18,200 $15,700 + $2,500

Jul-09 Apr-10 July-11 Sept-12 Sept-13
4/23/ :51 AM Jul-09 Apr-10 July-11 Sept-12 Sept-13 NFA = 67 MOA = 21 NFA = 35 MOA = 22 NFA = 36 MOA = 22 NFA = 44 MOA = 24 NFA = 34 MOA = 24 TA = 100 PAYGO = 28 TA = 86 PAYGO = 43 TA = 114 PAYGO = 41 TA = 115 PAYGO = 42 TA = 97 PAYGO = 50 IC = 20 Audits = 19 IC = 47 Audits = 43 IC = 34 Audits = 43 IC = 52 Audits = 50 IC = 59 Audits = 48 USD = 9 O&M = 49 USD = 6 O&M = 51 USD = 2 O&M = 79 USD = 6 O&M = 93 USD = 8 O&M = 104 Resources will shift to focus on audits, institutional controls and operation & maintenance oversight – the growing compliance piece of the VAP program © 2007 Microsoft Corporation. All rights reserved. Microsoft, Windows, Windows Vista and other product names are or may be registered trademarks and/or trademarks in the U.S. and/or other countries. The information herein is for informational purposes only and represents the current view of Microsoft Corporation as of the date of this presentation. Because Microsoft must respond to changing market conditions, it should not be interpreted to be a commitment on the part of Microsoft, and Microsoft cannot guarantee the accuracy of any information provided after the date of this presentation. MICROSOFT MAKES NO WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, AS TO THE INFORMATION IN THIS PRESENTATION.

PAYGO option would be eliminated Doesn’t capture costs to run the program (compliance piece) Current PAYGO projects would be converted to straight VAP TA if NFA is not submitted prior to final rule June estimated Current review process will remain in effect until final rule NFA PAYGO billing has ranged from $6, $57,507.90 Average $16,308.33

Propose removal of Consumer Price Index increase Fees changed annually Fees printed in rules were no longer valid confusing Difficult for CP to estimate future costs

NFA = $15,700 Increase for Phase I only projects, however it is rare that a Phase I only project would seek a CNS and pay the expense of a CP to develop a NFA Letter Banks do not require CNS for financing Phase I only projects NFA with Environmental Covenant = $18,200 Decrease for projects that would have had to pay $19,360 Developers – Time is money

As discussed in Rule 14 below, VAP Memorandum of Agreement (MOA) sites will undergo significant, up-front review and will be exempted from the Random Audit process – fees are adjusted accordingly: MOA NFA = $10,000 MOA NFA with Environmental Covenant = $12,500 Another incentive to use the VAP MOA process

Annual fee for Labs reduction from $3,000 to $500.00 Approximately five hours: Review renewal application Generate certification documents Director’s briefing memo Public notice

Certification for additional parameter groups, analytes or methods Propose change from $ to actual costs billed under technical assistance

OAC 3745-300-04 Certified Laboratory
Proposed changes for the 5-year rule review

Concern expressed by Certified Laboratories: Current rule requires that any changes to Standard Operating Procedures (SOPs) and Quality Assurance Manual (QAM) require Agency review and approval, the cost of which is billed back to labs This is costly and burdensome.

Response: rule proposal for the agency to review only the technical changes to SOPs and QAMs. Administrative and non-substantive changes will not require review/approval An SOP guidance has been published to help CLs understand which SOP/QAM revisions require agency review and which will not.

Concern: current rule requires audits of mobile labs to occur while they are operating in the field Response: Change rule to allow audits of mobile labs at headquarters as part of the fixed lab audit The agency determined that the location where audits are conducted is not critical in evaluating qualifications for certification. This is because the primary audit concern is ensuring laboratory adherence to all SOPs.

OAC 3745-300-05 Certified Professional

Renewal Applications: Issue: Applications have to be submitted days prior to expiration to guarantee no lapse. CPs felt this minimized their window for earning PDHUs Proposal: Remove automatic renewal language, change so that complete applications submitted prior to expiration date will not result in a certification lapse, even if processed after that date

Renewal Applications: Issue: If insufficient PDHUs were earned during the certification period, CP seeking renewal was required to submit an initial application - no other options available to make application complete Proposal: Add flexibility - allow for a 60 day post expiration (uncertified) grace period during which additional PDHUs can be earned to complete application and qualify for recertification

PDHUs Issue: Currently PDHUs can’t be earned by demonstrating knowledge of core topics by instructing them. Proposal: Allow PHDU credit for teaching certain core courses that demonstrate required environmental science expertise and that don’t currently qualify for PDHU’s.

OAC Phase I Proposed changes for the 5-year rule review

Phase I Propose removing requirement for a property boundary survey from the phase I rule Boundary survey is not needed at this point in the voluntary action NFA letter rule still retains requirement for a property boundary survey Needed for no further action letter because it needs to be legally described for covenant not to sue

Phase I Designation of Identified Areas Propose to clarify rule language related to the process of designating identified areas Clarify that an identified area is where there is a known or suspected release to environmental media of hazardous substance or petroleum

Phase I - Asbestos Survey or Abatement Propose that the rule explicitly require documentation of asbestos survey and/or abatement activities be included in the Phase I report (if available) Propose that rule clarify asbestos within buildings is not considered an identified area, unless it has been released to environmental media, e.g. soil outside the building

Phase I, cont. Make records review more consistent with ASTM Current rule has two groups for information sources for records review Property Areas within ½ mile surrounding the property Propose that information sources for records review be divided into three groups, which is consistent with ASTM Property only Property and adjoining property Property and surrounding property – minimum distance of ½ mile from the property

Phase I, cont. Propose that the de minimis evaluation to be modified to be more consistent with ASTM Rely more on professional experience Propose to remove the sampling requirements from the phase I rule Retain the four criteria currently in rule to demonstrate de minimis areas: Releases limited to surficial soil only (no other environmental media), Must be of a small quantity that is not considered a threat to human health or environment, Releases are not a pattern of mismanagement or disposal, and No more than three de minimis areas per acre

Phase I, cont. Releases addressed by other programs exempt from being identified areas Proposal makes rule more consistent with ASTM – similar to ASTM historical REC Volunteer must be able to demonstrate clean closure under the other program Release was addressed by other program using most stringent standards (i.e., unrestricted or similar standards) No institutional or engineering controls were needed under the other program Proposed that the other programs must fall under BUSTR, Ohio EPA, or US EPA jurisdiction Hazardous substances or petroleum from a release, or an exposure pathway, not addressed by the regulatory authority must be considered an identified area

Phase I, cont. VAP Eligibility Evaluation and Phase I updates Proposed that initial VAP eligibility evaluation be documented in Phase I report It is proposed that any potential barriers to VAP eligibility would be described in Phase I report NFA Letter rule will require an updated Phase I report that documents resolution of any VAP eligibility issues Existing obligations for a CP site walkover and updating of the Phase I report, including resolution of eligibility issues, moved to NFA Letter rule

OAC Phase II Proposed changes for the 5-year rule review

General Proposal for a conceptual site model to be added as part of the data quality objectives Helps CP direct assessment Provides clarity to Agency on assessed pathways Proposal to remove contour survey requirement Difficult for agency to validate $5,000-$7,000 savings to volunteer

General Language modification: releases “on, underlying or emanating from property” to releases “on or from the property” Assessment only when complete exposure pathways exist Remedy only needed if standards are exceeded

General Soil definition under consideration Specific language still being debated Issues/Reasons for definition consideration: Other media defined Laboratory analysis problems Risk issues relative to exposures Please review draft red-line definitions when rules are available on-line Is a soil definition really needed? Is it defined adequately?

Assessment/Investigation Issues Emphasize that soil assessment must adequately characterize both lateral and vertical extent in Identified Areas Already required, just clarifying rule language Added language for the determination of representative concentration for the vapor intrusion pathway Similar to existing language for soil and groundwater media Points to Ohio EPA Vapor Intrusion Guidance to determine exposure point concentrations

Assessment/Investigation Issues Streamline terms ‘source,’ ‘source area,’ and ‘release’ Remove the term ‘source’ globally and retain ‘source area’ and ‘release’ ‘Source area’ is the location of a known/suspected release ‘Release’ is when contaminants migrate to the environment

Ground Water Issues New language for identification and characterization of groundwater zones and confining layers Remove term ‘saturated zones’ throughout the rule as a result Reason: Saturated zones may be a clay layer of unimportance Protection should apply to groundwater zones – not just ‘saturated zones’

Ground Water Issues The requirements for all non-potable ground water pathways moved to Rule 07 from Rule 10 Focused Rule 10 on potable issues only Ground water pass-through added to Rule 07 as well Expand to include all media (e.g., VI) Adds new ‘clean hands’ provision

Ground Water Issues – ‘Clean hands’ provision Applies if volunteer owns but did not cause or contribute to the up-gradient plume migrating onto the property seeking the NFA letter BENEFITS: More brownfield properties may be cleaned up and developed by non-responsible parties

Ground Water Issues Protection demonstration – weight of evidence Add language to require O&M when relying on manmade barrier to inhibit infiltration as part of leaching demonstration Language already in rule – provides better clarity

Remedy Issues Emphasize that a remedy can be implemented and applicable standards need not be derived for an exposure pathway Allows for limited assessment and implementation of remedy without a full assessment The remedy is the means to show compliance with the applicable standard Applicable standards would need to be derived if compliance becomes an issue

Example Operating facility generates Hg in existing processes Historical releases of Hg Property enters VAP Difficulty assessing VI pathway Specifically contribution of past vs. current Hg exposure to receptors (workers)

Example (cont.) Volunteer is allowed to install presumptive remedy VI barrier – epoxy on floor Maintained under O&M Volunteer identifies that an applicable standard for VI exists and standard is presumed to fail Should remedy be removed or breached the standard would need to be calculated and met

Phase II Report Phase II report would include a final iteration of the conceptual site model Will be requested as an attachment to the new NFA template Format to be provided in guidance Emphasize that Phase II report must be formatted as prescribed by Agency Sets up use of Phase II template (TBD)

OAC 3745-300-08 Generic Standards

Generic Numeric Cleanup Standards Proposing a new method of constructing Generic Numerical Cleanup Standards: The proposal is to replace the current ‘Monte Carlo’ method, which is a probabilistic method with a deterministic (point value method)

Generic Standards - mathematical model (algorithm) calculation Generic standards have historically been generated using a probabilistic method program runs 10,000 times, randomly selecting values from the distributions (“10,000” standards are generated) The 90th percentile value is selected as the cleanup standard The final standard differs slightly between runs (varies a small percentage each time)

Proposal: Use point values instead of the range of values for modeling inputs A deterministic method uses one value for each input rather than a range of values Values chosen would be the default US EPA assumptions already used within the RSLs, except: Construction Worker standards (Do not exist in RSLs); and Evaluating PEF to be Ohio specific – Particulate Emission Factors (RSLs default to a western state) The method does not use ‘runs’ so there is not the output variation

US EPA Regional Screening Levels (RSLs) default inputs Consistent with Remedial Response (RR) and RCRA In RR & RCRA, RSLs can be used as screening levels in these programs VAP would not use RSLs as screening levels, but rather a construct for developing cleanup numbers Risk Goal and Hazard Index will remain at 1E-05 and HI of 1 Generic values for about 330 COCs current rules list 120 COCs Multi-chemical adjustment still required

VAP Generic Standards The RSLs apply a 2006 EPA Guidance that adds an additional component in assessing early-life exposure to these 20 carcinogens. Acrylamide Benzidine Chromium(VI) Dibromo-3-chloropropane, 1,2- Methylcholanthrene, 3- Methylene Chloride Methylene-bis(2-chloroaniline), 4,4'- Nitroso-N-ethylurea, N- Nitroso-N-methylurea, N- Nitrosodiethylamine, N- Nitrosodimethylamine, N- Benz[a]anthracene Benzoyl[a]pyrene Benzo[b]fluoranthene Benzo[k]fluoranthene Chrysene Dibenz[a,h]anthracene Dimethylbenz(a)anthracene, 7,12- Indeno[1,2,3-cd]pyrene Safrole

VAP Generic Standards DERR is proposing to remove this specific component when calculating Generic Standards unless already developed within IRIS Acrylamide Benzidine Chromium(VI) Dibromo-3-chloropropane, 1,2- Methylcholanthrene, 3- Methylene Chloride Methylene-bis(2-chloroaniline), 4,4'- Nitroso-N-ethylurea, N- Nitroso-N-methylurea, N- Nitrosodiethylamine, N- Nitrosodimethylamine, N- Benz[a]anthracene Benzoyl[a]pyrene Benzo[b]fluoranthene Benzo[k]fluoranthene Chrysene Dibenz[a,h]anthracene Dimethylbenz(a)anthracene, 7,12- Indeno[1,2,3-cd]pyrene Safrole

Urban County Background Numbers
Cuyahoga County: Arsenic 24.0 mg/kg Franklin County: Arsenic 20.7 mg/kg Hamilton, Montgomery, Summit, & Lucas in progress

Generic Numeric Cleanup Standards Developed Generic Indoor Air standards for Vapor Intrusion: Clearer way to address the pathway in conjunction with our Vapor Intrusion guidance Could save volunteers money by not having to develop or pay the agency to develop property specific cleanup standards Generic Standards would be available for Residential and Commercial/Industrial land use scenarios

Generic Numeric Cleanup Standards The Support Document for the Development of VAP Generic Numerical Standards will provide Volunteers with a comprehensive reference for how the Generic Standards have been determined. This should be available by the end of the year.

Generic Land Use Definitions Residential Land Use may be: Unrestricted = Point of Compliance (POC) of 10 ft; or Restricted = less than 10 ft POC Unrestricted Residential allows for any land use Restricted Residential allows for any land use with a reduced POC provided the POC is maintained by the Volunteer

Use of “Exposure Unit” concept should be limited to Property Specific risk assessment Existing rule allows the generic numeric standards to be applied to exposure units: Too broad Appropriate determinations and use of the “Exposure Unit” concept only maintained in Rule 9

OAC Risk Assessment Proposed changes for the 5-year rule review

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

OAC Ground Water Proposed changes for the 5-year rule review

VAP 5 Year - Rule 10 – Proposals
Urban setting Designation Eligibility Expanded to include communities , such as a village, that is surrounded by: City, or Township(s) with populations of twenty thousand or more residents in unincorporated areas, or The unincorporated portion of a township that has an average population density of 650 people per square mile in the unincorporated area, or

Urban setting Designation A former township that is entirely composed of municipal corporations, or An area that is completely surrounded by areas that are otherwise eligible as described above. All townships in Cuyahoga County are fully incorporated Includes individual sites within these communities

Urban setting Designation More flexibility in defining the USD boundary. As always: Professional Survey New: Entirety of a city or township (i.e., by plat or charter that legally describes the incorporated boundaries) New: Complete and adjacent parcels Caveat: Any USD boundary that cuts across parcel boundaries must be surveyed.

Urban setting Designation Application Added: Files or documents designating the defined boundary must be submitted in a manner prescribed by the Agency Generally related to electronic submissions

VAP 5 Year – Rule 10 - Proposals
Rule 10 will only address potable pathway All non-potable and ecological receptors would be addressed through the Phase II rule

Point of Compliance Changes for GW Change the point of compliance for potable use for some situations commonly occurring at VAP properties These situations are still protective of human health and the environment RESULT: Variance or case-by case not needed in these situations.

Point of Compliance Changes Property adjacent to transportation corridor GW discharging to surface water in close proximity (not necessarily adjacent) and GW not likely to be used for potable purposes Situation Potable Use POC Down-gradient edge of transportation corridor Surface water boundary, and surface water standards apply

Point of Compliance Changes Adjacent, down-gradient property has an Environmental Covenant Property boundary bisects a landfill Potable Use POC Situation Down-gradient edge of adjacent property Down-gradient edge of the lateral extent of the waste in the landfill

Pass-Through Provision Pass-through provision applies to potable pathways if volunteer owns but did not cause or contribute to the up-gradient plume migrating onto the property seeking the NFA letter (same ‘Clean Hands’ reference as in the Phase II rule) REMINDER - All pass-through provisions for non-potable pathways and other media (e.g., vapor intrusion) are now in Rule 7

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

OAC Remedy Rule

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

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

If you are able to show Best Efforts: This is not a variance – the pathway would not be remedied, but omitted from the voluntary action. The CNS would be conditioned to reflect that there is no liability release for this pathway. Most useful when off-site access is the issue. Allows volunteers to proceed in situations they might now be stuck.

Example: contaminated groundwater has emanated to a neighboring property; that owner refuses access and continues potable use of contaminated GW. The volunteer is required to, but cannot, remedy that pathway. Demonstration: Volunteer‘s attempts to contact the neighbor, inform him of the situation, and resolve access issues and remedy the pathway are robust and documented, as is the neighbor’s refusal.

Clarify: Remedy Construction, Remedy completion and Achieving applicable standards (AS) Clarify that remedies must be constructed prior to the NFA letter, but may achieve AS after the CNS Clarify that the “five years or other time frame” includes the verification time (e.g. 8 quarters of ground water confirmation sampling) Three years to perform remedy; two years to verify remedy worked

Propose to make clear that achieving remedy completion in O&M is ok, but this is defined as when AS are achieved, not when remedy construction is complete Clarifications include replacing {remedy must be} “complete” with “…achieve applicable standards, inclusive of verification…”

Handling of Risk Mitigation Plans Propose to remove the option of including an RMP within an O&M plan RMPs should be stand alone documents so compliance can be more easily tracked and reported. Eliminated confusion when O&M sunsets but risk mitigation must live on.

Interim measures – are needed when a permanent remedy is in place, but has not yet achieved AS. Propose: language clarifications to make clear circumstances under which interim measures are needed

Propose: Adding a section covering groundwater use restrictions as applied to zones at different depths beneath the property. Such restrictions: Should be recorded in an EC, May allow selective use of lower zones, Must be protective of uncontaminated zones

Remove elevation survey requirement Difficult for the agency to validate Often an unnecessary expense Of limited practical usefulness largely because it’s fixed in time and property dynamics change

Operation and Maintenance Plan proposals: Remove the elevation survey requirement Remove/simplify elements of the anticipated problems and contingency solutions section Harmonize rules and template Remove some duplicative/ confusing language

Post CNS - Basics Volunteers are free to change the remedies relied upon to meet Applicable Standards, so long as: The property remains in compliance with existing O&M plans and ECs until they are formally replaced. The property remains in compliance with Applicable Standards at all times.

Post CNS Remedy Changes
Completely new section of the rule.

Post CNS Remedy Changes Volunteers are not required to secure DIR approval for remedy changes. Volunteers are, as always, free to handle their property as they see fit However, this new process can provide the volunteer comfort that the CNS remains effective, i.e., that the property will continue to comply with applicable standards after the remedy change.

Post CNS Remedy changes: In order to ensure that the CNS remains in good standing, the volunteer can alert the DIR to a remedy change with a Remedy Revision Notice. Note: Remedy modifications or enhancements done in accordance with an O&M plan do NOT require a Remedy Revision Notice.

The proposed rule will specify the contents of the Remedy Revision Notice: Description of the revised remedy Statement from the CP that the property complies with AS under revised remedy Information relied upon by CP to make the determination New or revised O&M, as applicable New or revised EC, as applicable

Acknowledgement v. Approval The Remedy Revision Notice will be accompanied by a request for either Remedy revision acknowledgement, or remedy revision approval The volunteer can request that the Agency simply acknowledge the revision; no review but the Agency would consider these sites for a compliance audit The Volunteer can request that the Agency review and approve the revised remedy.

Remedy Revision Approval would give the volunteer comfort as to the adequacy of their revised remedy up front, no audit expectations. To secure the approval, the volunteer would be required to establish a TA account to cover the costs of Ohio EPA review.

Remedy Revision Acknowledgement would not trigger an Agency review of the revised remedy. No TA account need be established, UNLESS the revised remedy requires the development of new OMA/O&M or EC documents.

Regarding land use changes… The proposed rule would expect a New NFA for a land use change from Commercial/Industrial to residential in most situations. A new NFA may not be required if the original NFA Letter already supported a residential land use Would need a Remedy Revision Notice to update E.C.

Example Developer originally secured a CNS for a large parcel, only half of which was developed at that time of the CNS. Property has a direct contact complete pathway – this was addressed by buildings and parking lots in the developed portion, and fenced off in the undeveloped portion. An O&M plan was developed to maintain both the buildings/parking lot and fence engineering controls.

Remedy Revision Plan Volunteer now wants to build on the undeveloped portion of the property. The fence must be maintained in accordance with the O&M plan at all times. The portion of the property within the fence can be developed with buildings and pavement, as the front portion has been.

Proposed Remedy Revision Procedure The volunteer can submit a Remedy Revision Notice to Ohio EPA, along with a draft O&M plan for the new buildings and pavement on the back half The volunteer can chose to seek either a Remedy Acknowledgement, or a Remedy Approval The Remedy Revision Notice will contain information specific to this remedy (template to be developed)

Proposed Remedy Revision Procedure If the volunteer seeks Remedy Acknowledgement, DERR will file the notice and enter into (or modify) an OMA for the OMP Any new or modified OMA or OMP would require TA Always subject to compliance audit If the volunteer seeks Remedy Approval, the Agency will review the entire submittal under TA.

Remedy approval under TA will mean the revised remedy has been reviewed This costs more, but our discussions with developers have made it clear that some volunteers will want the certainty.

Alternative Scenario In an alternative, the volunteer might want to eliminate their O&M Plan obligations on the undeveloped section. A dig and haul to remove soil above direct contact standards would accomplish this. The fence could then be removed and O&M Plan obligations for the fence eliminated.

OAC 3745-300-12 Variances / Case by Case

VAP 5 Year - Rule 12- Proposals
Variances (existing) Case-by-Case Determinations (new) Fees (change) Withdrawals (new) Examples of variance and case-by-case situations. This rule covers the authority, scope, application process, and fees for both variances and case-by-case determinations. The variance portion was already in rule and remained largely unchanged except for a reorganization. The case-by-case determinations and the concept of withdrawals are newly added. The other major change is how the administrative fee is assessed for these reviews. A couple of examples of when a variance or a case-by-case determination would apply will be highlighted toward the end of the presentation.

The overall purpose of Rule 12, Variances and the proposed changes is to provide volunteers flexibility to address technical issues in certain situations We will propose to completely replace the existing rule. It was easier to completely rewrite it be more understandable and easier to follow.

Variances – Authority and Scope In existing rule. Authority under ORC A variance can only vary or change an applicable standard (i.e. soil generic standards, UPUS, VI and other risk-based standards) and replaces it with another standard. Applies to all media. A variance can only apply to an applicable standard; it cannot be used to change a demonstration, process, or anything else.

Variances – Approval Criteria Technically infeasible to comply with applicable standard, or costs exceed economic benefit; and Alternate standard improves environmental conditions and protects public health and safety; and Alternate standard promotes or preserves employment opportunities All of these criteria must be met for approval of a variance. Several examples exist for “technically infeasible” such as cannot achieve UPUS at a property line after a remedy. An example of “improvement of environmental conditions” could include source removal, some treatment, or other activities that reduce the potential risk to receptors. “Promoting or preserving employment opportunities” needs further evaluation.

Case-by-Case groundwater rule Authority under ORC (B)(12) to develop this rule; has never been exercised. By statute, it renders a generic numeric or risk derived ground water standard inapplicable to a property. It does not apply to other media or standards.

Case-by-Case – Approval Criteria What makes sense for this property? Rendering the ground water standard inapplicable must still ensure that public health and safety is and will continue to be protected. An alternate standard or special site-specific terms will be proposed and/or imposed to meet this criteria Director must consider public comments. A volunteer cannot use a case-by-case determination to relieve themselves of ground water requirements if a receptor is impacted, or may be impacted in the future. A risk evaluation must still be performed to determine if any receptors are adversely impacted.

Comparison Variance (existing rule) Case-by-Case (new)
Applies to any applicable standard (i.e. soil, GW, SW, sediment, VI). Only applies to ground water standards. Varies an existing standard and replaces it with an alternate standard. Renders a ground water standard inapplicable. An alternate standard or conditions will be proposed. Criteria – technically infeasible, economic benefits, protective of public health and safety, employment opportunities and must consider public comments. Criteria – what makes sense for this property? must ensure public health and safety is and will continue to be protected, and must consider public comments. This slide quickly summarizes the differences between variances and case-by-case determinations. Pause for questions.

Application Process (existing rule) Variance and case-by-case processes are nearly identical Name of applicant, CP, CL, property description, applicable standard, proposed alternate standards, Phase I info, Phase II info, adjacent property owners, and demonstration meeting approval criteria. Forms will be developed for consistency

Application review process (existing rule) Director determines complete application; may request additional information, sets up public meeting and notice, issues proposed action (approval/denial), issues final action This slide illustrates that the statute requires several time-consuming steps in order to get a variance or case-by-case determination.

Application review process (existing rule) Must be approved before issuance of an NFA Letter that relies upon the new standard. Approval time of 6-8 months, minimum. This is based on the extensive and detailed public process outlined in statute May take longer depending on complexity of technical review If needed for an NFA letter, it must be approved prior to issuance of the NFA. Neither a variance nor a case-by-case determination can be applied during an NFA review. In some situations, a variance may apply after a CNS is issued to address compliance with standards associated with a long-term remedy or O&M obligation. The estimated 6-8 months is statutorily required. Application complete (14 days). Application technical review and additional information (assumed 45 days could be more). Public meeting (30-90 days). Proposed action (90 days). Final action (30 days).

Proposed Administrative fee (change) New fee applies to both variance and case-by-case applications Old flat fee = $26,120 for a variance New = actual costs incurred as part of a technical assistance account

Application withdrawal option (new) Withdrawal applies to both variance and case-by-case applications Applicant may request to withdraw at anytime prior to a final action by the director (approval/denial) Any costs incurred to that point are non-refundable

Variance example Brownfield property with contaminated soil and ground water. Property not eligible for a USD TCE is migrating off-property above UPUS at 127 µg/L Ground water is Class A Down-gradient receptors include commercial and residential properties Since the property is located in a village, a USD cannot be applied.

Variance example (continued) Contaminated soil excavated (2) Rounds of in-situ chemical oxidation performed on ground water Off-property wells and soil-gas probes (4) Rounds of post-remedy ground water sampling

Variance example (continued) We find that TCE in ground water significantly reduced (to 8 µg/L) but still exceeds UPUS at the property line. We have determined that on and off-property vapor intrusion pathways are incomplete. Community is on municipal water. Additional remedial actions are not expected to yield additional reduction in TCE at property line.

Variance example (continued) Volunteer can seek a variance. Prior to issuance of an NFA Letter, a request for a variance from the TCE standard at the property line on the basis of technical infeasibility (UPUS = 5 µg/L). Public hearings and comment taken prior to director issuing variance. Alternate standard of 8 µg/L sought. The alternate standard proposed by the applicant must be based on a scientific evaluation. For this example, no one was drinking the ground water; so the alternate standard was not based on consumption. However, the off-property vapor intrusion pathway was a concern. Therefore, the certified professional derived a new property line standard for ground water based on a conservative back-calculation to the nearest off-property receptor using industry standard models. The CP also proposed to monitor the ground water in the future to annually validate the model. The variance approval should also include agreed upon termination criteria for the off-property monitoring.

Variance example (continued) Threshold Criteria – if all are met… Additional reduction in TCE levels is not technically feasible (or is not cost effective). Current and reasonably anticipated receptors are protected. Issuance of a CNS will enhance reuse of the property THEN: These bullets describe how the applicant met the approval criteria for a variance.

Case-by-case groundwater example Brownfield that contains an unregulated landfill Landfill is known to contain hazardous substances at depths in contact with upper ground water zone Ground water sampled near the landfill in the upper zone meets UPUS, so Protection requirements apply to the upper ground water zone For this example, the ground water under and around the landfill meets UPUS. If any of the wells failed to meet UPUS, then the POGWMUPUS demonstration would not apply to the upper zone; it would apply to the next lower zone.

This is a visual cross-section of the example.

Case-by-case example –situation: Landfill leachate is in direct communication and part of the upper zone It is not practical to excavate the landfill No potable use of the ground water in the upper zone A USD does not relieve the requirement to protect a clean ground water zone A USD won’t help because even with one in-place, POGWMUPUS still applies.

Case-by-case example (continued) ORC states that if ground water under a property meets “residential use” standards, the voluntary action must ensure compliance with those standards into the future (i.e. POGWMUPUS) For this landfill scenario where ground water meets UPUS, making this demonstration may be difficult, and the existing VAP tools can’t help -standards established under rule pursuant to (B)(1) or (2).

Case-by-case example (continued) It makes little sense to protect this gw zone. Prior to issuance of an NFA Letter, the volunteer requests a case-by-case determination to render the “residential use” standard of POGWMUPUS inapplicable to the property given the circumstances. Must go through public hearing and comment. Non-potable pathways must still be evaluated. Potable ground water use restriction. This slide describes the scope of the case-by-case determination. It also indicates that the approval criteria must still be met (i.e. ensure that public health and safety is and will continue to be protected). The potable standards no longer apply because no one is drinking the leachate/ground water, and they won’t in the future due to a ground water use restriction. All non-potable standards still apply, and these pathways must still be evaluated (i.e. ground water to surface water and vapor intrusion).

Case-by-case example (continued) The groundwater standards is replaced by new standards or conditions that makes sense for this specific set of circumstances. Public hearing and comment were considered. All other pathways were evaluated and found protective. Potable ground water use restriction required to ensure protectiveness going forward. New standards/requirements approved.

OAC NFA Submittal Proposed changes for the 5-year rule review

Changes made to match a new NFA format and process Ohio EPA would review the NFA Letter only (handout) Submittal of supporting documentation after CNS issuance

New Process Submit NFA Letter with request for a CNS Summary pages, Executive Summary, O&M Plan & Agreement, and draft Environmental Covenant (EC) There will still be an INOD (plus CP call), and FNOD process to correct deficiencies and finalize O&M and EC docs Technical Assistance (TA) still available prior to NFA submittal Nancy INOD/FNOD process still here – but no PAYGO – Single FEE process (Tiffani can address this issue) Our current review process will occur as needed, but with less review. Negotiation of the legal documents will still occur.

Administrative Information Similar to current Form A Specific Affidavits All other affidavits not required submitted after CNS issuance Letters from Volunteer, CP requesting NFA Letter submittal for CNS

NFA Letter Statutory Elements: A – Is the property eligible? B – Has a risk assessment been performed? C – Identify any person who performed work in support of the NFA Letter D – List of all data, records and information relied upon *Phase I, Phase II, Lab rpt dates, etc E – Summary of the Voluntary Action *Includes executive summary - expanded template

Filing documents for deed records: Executive Summary Legal description Property Map Environmental Covenant (no longer filing O&M Agreements or RMP) Attempt to reduce need to re-file in Deed Records when O&Ms or RMPs change over time Cuts down on recording costs Notice to new property owners

Once the CNS is issued, the volunteer would then submit all supporting documentation for agency files and use in audits Phase I report, Phase II report, etc Addition of NFA Letter withdrawal option language Nancy – Process Filing document is executive summary, but removed the O&M and RMP from these change and it is becoming evident this should be outside the deed records. After CNS approval, the issuance letter will request all the NFA documents relied upon by the CP, which would include the full Phase I, Phase II, Risk Assessment and other audit level documents. This does not mean every NFA will be audited, but we will the documents for all NFAs.

OAC Audits Proposed changes for the 5-year rule review

Audits of NFA Letters Elimination of the mandatory and priority audit pools titles Creation of discretionary audit pool language Inclusion of compliance audits in rule Exempt MOA track properties from the random audit pool Creation of a VAP audit committee

Elimination of Mandatory and Priority Audit Pools NFA letters submitted the previous calendar year would be eligible for an audit through the random audit selection process or from a discretionary audit selection process Discretionary audits: Flagged during NFA review by Site Coord, Risk, GW, Legal Screened by an audit committee before moving forward

Compliance Audits All NFA Letters are subject to a compliance audit if compliance issues arise with applicable standards Would be screened by a VAP audit committee to determine if an audit is really warranted Agency would only audit certain components of the NFA rather than its entirety e.g., suspected vapor intrusion failure Always had authority to perform discretionary and compliance audits - proposed changes would formalize the rule definitions

NFAs participating in the MOA track will be exempt from the random audit pool NFAs that participate in the MOA track are already thoroughly reviewed prior to issuance of the NFA letter, closely along the lines of an audit This is beneficial, as it saves time and money for the Agency, and it will ease concerns for volunteers and CPs in regard to being randomly selected for audit

Creation of the VAP Audit Committee The committee will determine which NFA letters will be selected for discretionary audit and also evaluate whether or not a potential compliance issue warrants a compliance audit. The committee will make these selections based off of defined selection criteria

VAP 5 year – Rule 14 - Proposals
Random Audit Pool – Divided into two groups: group A with a remedy and group B without a remedy Randomly select NFA letters from groups A & B NFA letters that requested a CNS during the previous calendar year Discretionary Audit Pool --- CNS Compliance Audits --- NFA letters with CNS compliance related issues (any NFA letter with a CNS – usually issue specific) Conduct audits of 25% of the previous year’s NFA letters from the Random and Discretionary Audit Pools Yes No MOA NFAs with risk assessment or remedy Did the NFA letter property participate in the MOA track? VAP Audit Committee: Selects NFA letters for audit based on selection criteria Not Selected Selected

VAP Rules – 2014 Proposals Peter Whitehouse, Assistant Chief

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VAP Rules – 2014 Proposals Peter Whitehouse, Assistant Chief

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