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VAP Rules – 2014 Proposals

VAP Rules – 2014 Proposals. Peter Whitehouse, Assistant Chief Tiffani Kavalec, ACRE Manager Eric Sainey, VAP Lead Worker Division of Environmental Response & Revitalization. W eb Link. http://www.epa.state.oh.us/derr/derrrules.aspx. Stakeholder Mtg Schedule. November 21, 2013: 1-5pm

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VAP Rules – 2014 Proposals

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

  2. Web Link • http://www.epa.state.oh.us/derr/derrrules.aspx

  3. Stakeholder Mtg Schedule • November 21, 2013: 1-5pm W.W. Knight Nature Center: HankisonGreat Room 29530 White Rd,       Perrysburg Ohio  43551 • December 5, 2013: 1-5pm Nelsonville Library 95 W. Washington Street   Nelsonville, OH 45764-1177 • 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 RoadMason, OH 45040 • December 17, 2013: 1-5pm Delaware County Board of Elections 2079 U.S. Highway 23, N #4 Delaware, OH 43015

  4. 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

  5. OAC 3745-300-01Definitions Proposed changes for the 5-year rule review Clarifications and additions to support revisions to other rules

  6. OAC 3745-300-02Eligibility Proposed changes for the 5-year rule review

  7. VAP 5 Year - Rule 02 - Proposals • Other BUSTR Sites Eligible for VAP • VAP Rule 2 changed to match statutory changes • Rule 3745-300-02(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

  8. VAP 5 Year - Rule 02 - Proposals 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”

  9. VAP 5 Year - Rule 02 - Proposals • 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

  10. VAP 5 Year - Rule 02 - Proposals • Since 1997, VAP has received 15 Sufficient Evidence demonstrations • Six were denied entry in to the VAP

  11. VAP 5 Year - Rule 02 - Proposals 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

  12. VAP 5 Year - Rule 02 - Proposals 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

  13. VAP 5 Year - Rule 02 - Proposals 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

  14. VAP 5 Year - Rule 02 - Proposals Progress Reports • Currently, progress reports are submitted upon completion of milestones or every 6 months • As proposed, reports would be due every 3 months

  15. VAP 5 Year - Rule 02 - Proposals 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

  16. VAP 5 Year - Rule 02 - Proposals 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

  17. VAP 5 Year - Rule 02 - Proposals 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

  18. VAP 5 Year - Rule 02 - Proposals • Propose to have Sufficient evidence demonstration reviews invoiced by the Agency through the VAP TA process rather than handled through a cost recover claim

  19. OAC 3745-300-03Fees Proposed changes for the 5-year rule review

  20. VAP Costs – 2012

  21. VAP 5 Year - Rule 03 - Proposals • 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 $100.00 per hour = $10,000

  22. VAP 5 Year - Rule 03 - Proposals • 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

  23. VAP 5 Year - Rule 03 - Proposals 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

  24. Sept-13 Sept-12 July-11 Jul-09 Apr-10 NFA = 36 MOA = 22 NFA = 67 MOA = 21 NFA = 35 MOA = 22 NFA = 44 MOA = 24 NFA = 34 MOA = 24 TA = 100 PAYGO = 28 TA = 115 PAYGO = 42 TA = 97 PAYGO = 50 TA = 114 PAYGO = 41 TA = 86 PAYGO = 43 IC = 20 Audits = 19 IC = 59 Audits = 48 IC = 47 Audits = 43 IC = 34 Audits = 43 IC = 52 Audits = 50 USD = 8 O&M = 104 USD = 6 O&M = 51 USD = 6 O&M = 93 USD = 9 O&M = 49 USD = 2 O&M = 79 • Resources will shift to focus on audits, institutional controls and operation & maintenance oversight – the growing compliance piece of the VAP program

  25. VAP 5 Year - Rule 03 - Proposals • 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 2014 - estimated • Current review process will remain in effect until final rule • NFA PAYGO billing has ranged from $6,243.91 - $57,507.90 • Average $16,308.33

  26. VAP 5 Year - Rule 03 - Proposals • 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

  27. VAP 5 Year - Rule 03 - Proposals • 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

  28. VAP 5 Year - Rule 03 - Proposals 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

  29. VAP 5 Year - Rule 3 - Proposals • 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

  30. VAP 5 Year - Rule 03 - Proposals • Certification for additional parameter groups, analytes or methods • Propose change from $500.00 to actual costs billed under technical assistance

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

  32. VAP 5 Year - Rule 04 - Proposals 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.

  33. VAP 5 Year - Rule 04 - Proposals 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.

  34. VAP 5 Year - Rule 04 - Proposals 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.

  35. OAC 3745-300-05Certified Professional Proposed changes for the 5-year rule review

  36. VAP 5 Year - Rule 05 - Proposals Renewal Applications: • Issue: Applications have to be submitted 45-90 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

  37. VAP 5 Year - Rule 05 - Proposals 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

  38. VAP 5 Year - Rule 05 - Proposals 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.

  39. OAC 3745-300-06Phase I Proposed changes for the 5-year rule review

  40. VAP 5 Year - Rule 6 - Proposals • 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

  41. VAP 5 Year - Rule 6 - Proposals • 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

  42. VAP 5 Year - Rule 6 - Proposals • 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

  43. VAP 5 Year - Rule 6 - Proposals • 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

  44. VAP 5 Year - Rule 6 - Proposals • Phase I, cont. Propose that the de minimisevaluationto 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 minimisareas: • 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

  45. VAP 5 Year - Rule 6 - Proposals • 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

  46. VAP 5 Year - Rule 6 - Proposals • 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

  47. OAC 3745-300-07Phase II Proposed changes for the 5-year rule review

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