GENERAL SECTION

Ohio’s Voluntary Action Program:
Potential Memorandum of
Agreement with U.S. EPA

INTRODUCTION
Ohio EPA’s Voluntary Action Program (VAP) enables a property to attain a Covenant Not-To-Sue (CNS) from the State of Ohio regarding its environmental condition. However, federal relief from environmental conditions is not currently available since a Memorandum of Agreement (MOA) from the U.S. EPA does not exist with Ohio’s VAP. Although unlikely, there is the potential for subsequent federal action against properties that receive a CNS from the State of Ohio under the VAP without a MOA. In order to rectify this situation, Ohio EPA has been negotiating an MOA with the U.S. EPA.

FOCUS AREAS FOR MOA
The U.S. EPA has established six criteria for state voluntary action cleanup programs to meet in order to establish a MOA with the respective state voluntary action cleanup program, essentially meaning that the state program meets U.S. EPA criteria. Currently, the Ohio EPA has not entered into a MOA with the U.S. EPA regarding the Ohio Voluntary Action Program. Following Ohio EPA discussions with U.S. EPA Region V Brownfields representatives, Ohio EPA has identified two areas that should be addressed in the VAP in order to establish a MOA between the state and federal agencies. These areas include:

• Opportunities for public involvement should be modified.
• The VAP system of No Further Action Letter review and performance of audits to verify that investigation and cleanup work was done properly should be bolstered with pre-NFA oversight during the actual site work.

CLASSIC VAP OR MOA TRACK
The Ohio EPA is currently working on a way to address these two areas without amending the current VAP rules or statute. A dual system has been proposed by the Ohio EPA which will give the Volunteer a choice of pursuing a CNS with or without acknowledged federal relief under the MOA.

The Classic VAP track consists of performing a voluntary action in accordance with the existing rules promulgated by the
Ohio EPA. Sites participating in the Classic VAP track will be eligible to receive a CNS from the State of Ohio but no comfort from federal liability.

The MOA track will include more agency review and involvement throughout the process (e.g. notice of entry into the program, pre-approval of documents and work plans, and public meetings). The Ohio EPA will cover its costs for the additional tasks in the MOA track by charging the volunteer for the services provided (much like the technical assistance under the current program). The MOA track will add Ohio EPA review/approval time and increased costs in order to obtain both state and federal relief.

As before, neither track provides relief from third party lawsuits.

SUMMARY
Ohio EPA’s VAP may soon be able to provide comfort from federal action through a MOA based on additional public involvement and state oversight. If you wish to discuss this issue any further, please contact John Payne, Michael Woodruff, or Kara Pettinger at 513-489-2255 or toll free at 1-800-229-1443 or through e-mail at jlp@paynefirm.com, mlw@paynefirm.com or kmp@paynefirm.com.