How does the VAP handle COCs that have left the VAP Property?

Certified Professional CoffeeFebruary 24, 2016

Sydney PooleDERR-VAP

Ohio Revised Code 3746.04Implementation of VAP Rules

• (B)(2)(a) procedures for performing property-specific risk assessments– “...The risk assessment procedures shall describe a

methodology to establish … allowable levels of contamination to remain at a property to ensure protection of public health and safety and the environment on the property and off the property when the contamination is emanating off the property....”

ORC 3746.11 No further action letter duties for CP

• (C) Lists the contents of a No Further Action Letter– “A certified professional shall prepare a summary

report ... including...[a] description of the nature and extent of contamination emanating from sources on the property.”

ORC 3746.12 Issuing or denying CNS

• “(A)…A covenant not to sue shall contain … :• (1) A provision releasing the person who

undertook the voluntary action from all civil liability … to address a release of hazardous substances or petroleum when the property has undergone” assessment and remediation to “demonstrate or result in compliance with applicable standards, …”

"Release" Definition

• OAC 3745-300-01(A)(116) "Release" is any spilling, leaking … of any hazardous substance or petroleum into the environment….”

In other words

• The release of liability for the NFA letter property encompasses the release, without distinguishing the location of the release relative to the property.

"Siemens" ERAC CaseSeptember 30, 2008

OAC 3745-300-07 Phase II Rule

• “(A) Applicability.(1) A phase II property assessment must be conducted…” if there is “…any reason to believe that a release of hazardous substances or petroleum has or may have occurred on or from the property….”

OAC 3745-300-10 Ground Water Rule

• (E)(3) “Response requirements that apply to ‘Class A’ ground water zones without an urban setting designation or critical resource ground water zones with or without an urban setting designation. Ground water on or from the property must not exceed unrestricted potable use standards at the point of compliance….”

Non-potable pathways2014 VAP Rule

• The requirements for all non-potable ground water pathways moved from Rule 10 to Rule 07– Now found in -07(F)(1), Pathway Completeness

Determination, which covers all pathways– Focused Rule 10 on potable issues only

• Pass-through added to Rule 07 as well as Rule 10– -07(F)(10), includes all media (e.g., VI)– Adds new ‘clean hands’ provision

OAC 3745-300-09"Property Specific" Risk Assessment?

• “(D) Procedures for human health risk assessments. (1) For a human health property-specific risk assessment conducted in accordance with this rule the volunteer must demonstrate that the concentrations of chemicals of concern on or from a property meet the applicable risk and hazard levels ….”

Pathway Evaluation

• Pathway Completeness Determination – evaluate all pathways to all receptors, including those located on and off the property (-07(F)(1))

Off Property Remedy

• May be necessary when COCs have left the property

• We understand this could be difficult

• OAC 3745-300-11(D) - Pathway omission process for pathways to off-property receptors that cannot be remedied after a volunteer has applied diligent efforts (new in 2014 VAP rules)

Pathway Omission

• If approved, the CNS will not apply to the omitted pathway

• Must be made prior to issuance of the NFA letter

• Request for Pathway Omission on web page: – VAP -> Program Info/Services -> USDs and Other

Director Approvals Prior to Issuance of NFA Letter

Questions