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GENERAL SECTION
Proposed Memorandum of Agreement
Between U.S. EPA and Ohio EPA
Discussed at VAP Public Meeting
U.S. EPA and Ohio EPA held a public meeting on March 1, 2001 to discuss the proposed “enhanced” Voluntary Action Program (VAP) track, which will enable the signing of a Memorandum of Agreement (MOA) between the agencies. When approved, the MOA will achieve federal liability protection, in addition to state liability protection, as part of a Covenant Not-to-Sue (CNS) issued for a property. Since the MOA is policy, not regulation, U.S. EPA reserves its right to overfile on projects completed under the enhanced program. The meeting provided an opportunity for the agencies to present their current progress and to answer questions from the public including legal, consulting, and activist elements.
BACKGROUND
For more than a year, Ohio EPA and U.S. EPA have been working out the details of an “enhanced” VAP track that would meet U.S. EPA’s minimum requirements for acceptability in achieving an MOA. U.S. EPA Region V currently has signed agreements with the other five states in the region; only nine states in other regions of the country have MOAs. The identified shortcomings of Ohio’s “classic” VAP included the need for meaningful public involvement and state oversight at specific points during the process, but not technical elements of the program.
VAP MOA TRACK HIGHLIGHTS
The MOA track addresses U.S. EPA’s public involvement issue by: requiring written notification of entry into the program to the public through a local newspaper and to Ohio EPA; establishing a public repository in a local library; holding public meetings as warranted by demonstrated interest; and providing a 30 day public review period for any proposed remedy. State review and approval is required for any of the following documents: Phase I report; initial eligibility determination; Phase II sampling plan; Phase II report; risk assessment; proposed remedial action work plan; documentation of significant changes; and the final submittal. U.S. EPA does not review documents in this process.
POTENTIAL IMPACTS TO VOLUNTARY ACTIONS
Ongoing “classic” VAP projects may “back up” and switch to the MOA track provided that an associated remedy has not yet been conducted. Such volunteers must go through public involvement and state reviews to get on track. An already-completed VAP remedy does not provide for public review and comment and presents an eligibility issue. Other historical remedies may be reviewed on a site-specific basis for appropriate handling. Low-priority interim status RCRA sites may be reviewed for eligibility and inclusion in the VAP MOA track, subject to site-specific requirements according to Region V. The MOA track will add to the length of the process due to requirements for various state reviews and public notifications/ meetings, which will add at least three to six months to any project schedule. Costs to complete the MOA track will be at least 15% to 35% higher than the classic VAP.
STATUS OF APPROVAL
Both agencies will consider any comments arising from the public meeting. U.S. EPA Region V must still obtain approval from the national headquarters, which may take one to two months. Following approval, arrangements will be made for the MOA to be signed by Ohio EPA and Region V. Ohio EPA will then make internal administrative decisions, hire staff, and train staff in the district offices to handle the anticipated volume of projects, which is expected to take six to eight months. It appears that it will be early 2002 before the program is implemented.
SUMMARY
The pending MOA will provide added federal liability protection for those properties and volunteers that may need it. Additional state oversight and public involvement will increase the cost and time to obtain a CNS. A copy of the proposed MOA and supporting documents can be accessed at www.epa.state.oh.us/derr/vap/moa/moa.html. If you wish to discuss this issue any further, please contact John Payne, Don Fay, Michael Woodruff, or Kara Pettinger at 513-489-2255 or toll free at
800-229-1443 or through e-mail at jlp@paynefirm.com, daf@paynefirm.com, mlw@paynefirm.com, or kmp@paynefirm.com.
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