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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. Logistics. Cell Phones Bathrooms Questions at the end of each section. W eb Link.

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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. Logistics • Cell Phones • Bathrooms • Questions at the end of each section

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

  4. Agenda BREAK Rule 8 – Generic Standards Rule 9 – Risk Rule 11 – Remedy Rule 12 – Variance Rule 2 – Eligibility • Rule 13 – NFA • Rule 14 – Audit • Rule 3 – Fees • Rule 4 – Labs • Rule 5 – CPs • Rule 6 – Phase I • Rule 7 – Phase II • Rule 10 – Ground Water

  5. 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

  6. 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

  7. OAC 3745-300-13NFA Submittal Proposed changes for the 5-year rule review

  8. VAP 5 Year - Rule 13 – Proposals • Changes made to match a new NFA format and process • Ohio EPA would review the NFA Letter only (handout) • Submittal of supporting documentation after CNS issuance

  9. VAP 5 Year - Rule 13 – Proposals New Process • Submit NFA Letter with request for a CNS • Summary pages, Executive Summary, O&M Plan & Agreement, and draft Environmental Covenant (EC) • There will still be an INOD (plus CP call), and FNOD process to correct deficiencies and finalize O&M and EC docs • Technical Assistance (TA) still available prior to NFA submittal

  10. VAP 5 Year - Rule 13 – Proposals • Administrative Information • Similar to current Form A • Specific Affidavits • All other affidavits not required submitted after CNS issuance • Letters from Volunteer, CP requesting NFA Letter submittal for CNS

  11. VAP 5 Year - Rule 13 – Proposals NFA Letter Statutory Elements: A – Is the property eligible? B – Has a risk assessment been performed? C – Identify any person who performed work in support of the NFA Letter D – List of all data, records and information relied upon *Phase I, Phase II, Lab rpt dates, etc E – Summary of the Voluntary Action *Includes executive summary - expanded template

  12. VAP 5 Year - Rule 13 – Proposals • Filing documents for deed records: Executive Summary Legal description Property Map Environmental Covenant (no longer filing O&M Agreements or RMP) • Attempt to reduce need to re-file in Deed Records when O&Ms or RMPs change over time • Cuts down on recording costs • Notice to new property owners

  13. VAP 5 Year - Rule 13 – Proposals • Once the CNS is issued, the volunteer would then submit all supporting documentation for agency files and use in audits • Phase I report, Phase II report, etc • Addition of NFA Letter withdrawal option language

  14. OAC 3745-300-14Audits Proposed changes for the 5-year rule review

  15. VAP 5 Year – Rule 14 - Proposals Audits of NFA Letters • Elimination of the mandatory and priority audit pools titles • Creation of discretionary audit pool language • Inclusion of compliance audits in rule • Exempt MOA track properties from the random audit pool • Creation of aVAP audit committee

  16. VAP 5 Year – Rule 14 - Proposals Elimination of Mandatory and Priority Audit Pools • NFA letters submitted the previous calendar yearwould be eligible for an audit through the random audit selection process or from a discretionary audit selection process • Discretionary audits: • Flagged during NFA review by Site Coord, Risk, GW, Legal • Screened by an audit committee before moving forward

  17. VAP 5 Year – Rule 14 - Proposals Compliance Audits • All NFA Letters are subject to a compliance audit if compliance issues arise with applicable standards • Would be screened by a VAP audit committee to determine if an audit is really warranted • Agency would only audit certain components of the NFA rather than its entirety • e.g., suspected vapor intrusion failure • Always had authority to perform discretionary and compliance audits - proposed changes would formalize the rule definitions

  18. VAP 5 Year – Rule 14 - Proposals NFAs participating in the MOA track will be exempt from the random audit pool • NFAs that participate in the MOA track are already thoroughly reviewed prior to issuance of the NFA letter, closely along the lines of an audit • This is beneficial, as it saves time and money for the Agency, and it will ease concerns for volunteers and CPs in regard to being randomly selected for audit

  19. VAP 5 Year – Rule 14 - Proposals Creation of the VAP Audit Committee • The committee will determine which NFA letters will be selected for discretionary audit and also evaluate whether or not a potential compliance issue warrants a compliance audit. • The committee will make these selections based off of defined selection criteria

  20. VAP 5 year – Rule 14 - Proposals MOA NFAs with risk assessment or remedy NFA letters that requested a CNS during the previous calendar year Did the NFA letter property participate in the MOA track? Yes No Random Audit Pool – Divided into two groups: group A with a remedy and group B without a remedy Randomly select NFA letters from groups A & B Not Selected Selected VAP Audit Committee: Selects NFA letters for audit based on selection criteria Discretionary Audit Pool Conduct audits of 25% of the previous year’s NFA letters from the Random and Discretionary Audit Pools --- CNS Compliance Audits --- NFA letters with CNS compliance related issues (any NFA letter with a CNS – usually issue specific)

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

  22. VAP Costs – 2012

  23. 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

  24. 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

  25. 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

  26. 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

  27. 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

  28. 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

  29. 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

  30. 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

  31. 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

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

  33. 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.

  34. 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.

  35. 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.

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

  37. 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

  38. 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

  39. 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.

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

  41. 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

  42. 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

  43. 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

  44. 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

  45. 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

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