GENERAL SECTION

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

The Ohio EPA and U.S. EPA have been working out the details of a potential Memorandum of Agreement (MOA) to allow federal relief from liability for participants in Ohio EPA’s Voluntary Action Program (VAP). According to Ohio EPA, VAP staff completion of the MOA is on the horizon. What would this MOA mean to the existing VAP process? How could your site be affected?

BACKGROUND
As reported in February 2000, the Ohio EPA’s MOA application established a separate track for volunteers desiring to obtain formal federal relief. This MOA Track would include upfront Ohio EPA involvement in the process including review of documents and work plans. Volunteers in the program would also be required to hold public meetings and formally notify the Ohio EPA of entry into the VAP. The intention is to create two pathways for completing voluntary actions in Ohio by continuing to allow those participants who don’t want the protection of formal federal relief to follow the current VAP track.

STATUS OF APPROVAL
Ms. Amy Yersavich, Acting VAP Manager for the Ohio EPA, reported that the Ohio EPA had addressed all of the U.S. EPA comments to their initial application. U.S. EPA had no issues with the VAP standards or risk assessment procedures. The next step is for the U.S. EPA to schedule and hold public meetings with interested parties to solicit comments on the application. Once the comments have been addressed the MOA will be signed. Based on survey results, the Ohio EPA believes that there is sufficient interest in the MOA track across the State to warrant hiring additional VAP site coordinators and re-decentralizing the program. The Ohio EPA does not intend to implement the MOA for at least six months after approval by U.S. EPA to ensure adequate staff levels, internal training, and administrative considerations are in place. The earliest the MOA Track will be available is third quarter 2001.

POTENTIAL IMPACTS ON VOLUNTARY ACTIONS
In pursuing the U.S. EPA MOA, it is not the intention of the Ohio EPA to force volunteers into the new MOA Track. The decision to participate in the MOA Track versus the current VAP track would be dependent on the volunteer’s need for federal as well as state liability protection. According to Ms. Yersavich, at this time the only incentive to participate in the MOA Track is federal relief from liability.

It is not anticipated that future federal brownfields grant recipients will be required to participate in the Ohio VAP MOA Track. There are no current plans to offer additional monetary incentives to participate in the MOA Track.

SUMMARY
The Ohio EPA VAP program may soon offer an alternative that will provide relief from federal liability as well as state liability. The approval of the Memorandum of Agreement between the Ohio EPA and U.S. EPA is on the horizon, but implementation could be over a year away. A copy of the Ohio EPA’s DRAFT MOA can be accessed at www.epa.oh.us/derr/vap/moa/moa.html. 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.