Clean-Up of UST Tanks Now Possible under Ohio EPA’s VAP program when Responsible Party is Bankrupt/Deceased/Financially Unable

Cleaning up an environmental site in Ohio can be confusing at best, due to the number of regulatory agencies who may have jurisdiction. This is especially true at a site that contains underground storage tanks as well as other contaminants.

Basically, the Bureau of Underground Storage Tank Regulation (“BUSTR”) regulates petroleum and hazardous substances stored in underground storage tanks (and cleaning up contamination from same). There are a few exemptions to these regulations:

• Heating oil tanks used for heating on the premises (permit/inspection done by local fire department. Ohio EPA regulates any release).

• Farm and residential tanks smaller than 1,100 gallons (permit/inspection done by local fire department. Ohio EPA regulates any release).

• Abandoned tanks of unknown owner, origin and contents (permits issued through local fire department or SFM/Code Enforcement Bureau).

• A list of hazardous substances that are regulated for tank removal are found in OAC 1301:7-9-03. Clean-up of these are not regulated by BUSTR. Several other exceptions are listed in the rules themselves.

The coveted “piece of paper” sought from BUSTR after a tank removal and clean up is known as a “No Further Action Letter”(“NFA”) indicating BUSTR is satisfied with the tank removal and clean up (associated with the tank).

Cleaning up a hazardous substance not associated with a tank, however, is governed by the Ohio EPA. Those seeking “finality” (at least from Ohio EPA) and absolution regarding an “environmentally challenged site” often go through the steps required in Ohio EPA’s Voluntary Action Program (“VAP”). The VAP Program was created to give individuals/companies a way to investigate possible environmental contamination, clean it up if necessary, and receive a promise from the State of Ohio that no more cleanup is necessary.

The coveted “pieces of paper” applicable to a non-tank related clean-up are: 1) No Further Action letters that are actually prepared by a Certified (Environmental Consultant) Professional (after investigation and clean up to VAP standards) and then blessed by the Ohio EPA; and 2) “Covenants Not To Sue” (“CNTS”) issued by the Ohio EPA. CNTSs are basically written assurances that no further action would be required (regarding cleaning up the hazardous substance(s) in question) recorded in the applicable county recorder’s office.

The problem with dealing with multiple agencies is simply time and money. The BUSTR NFA would not cover, for example hydraulic oil not associated with an underground storage tank (“UST”), and the Ohio EPA’s CNTS would not cover USTs and contamination from the tanks. Accordingly, the property owner would have to “go through both doors” to get a “blessed as clean” site.

The good news is that the Ohio legislature partially remedied this problem last fall (with HB 152) for instances where a responsible party is deceased, bankrupt or financially unable to clean up a release from an UST. If any of the foregoing apply, the UST is said to be a “Class C UST”.

HB 152 basically provides that Class C USTs/releases can be cleaned up under Ohio EPA’s VAP program, without completing a BUSTR clean up first. The UST still must be removed per BUSTR regulations, but the soil assessment and clean up can be performed under the VAP.

While HB 152 is a step in the right direction, the law does not go far enough. All clean ups associated with USTs should be able to utilize the VAP program.

For More information from Ohio EPA, click on the following link:

 BUSTR Class C Releases are Now Eligible for the VAP


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…In a June 26, 1994, Cleveland Plain Dealer article entitled Environmentalists Leery of Possible Loopholes, Chris Trepal, co-director of the Earth Day Coalition in Northeast Ohio, lambasted the enabling VAP legislation as “one of the poorest public policy measures I’ve ever seen.” A clairvoyant Richard Sahli, executive director of the Ohio Environmental Council, echoed his sentiment in the May 26, 1994, Cincinnati Post, “We do predict there will be a lot of shoddy cleanups under this bill the state will never catch.” Testifying before the House Energy & Natural Resources Committee on behalf of the Ohio Academy of Trial Lawyers, Cincinnati environmental lawyer David Altman asserted, “This bill is a definite bait-and-switch. What it is supposed to do and what it does is two different things.”

A seminal, 152 page 2001 Gund Foundation funded study by the Green Environmental Council confirmed the critics’ predictions. A dearth of agency resources to provide meaningful regulatory oversight combined with the lack of a credible, established enforcement mechanism has rendered the feckless, industry aligned program toothless. “It’s a broken program – it doesn’t work,” declared the council’s Bruce Cornett in an interview with the Cleveland Plain Dealer. Both the Sierra Club and Ohio Citizen Action opposed the 2000 $400 million Clean Ohio state bond issue out of concern the fungible proceeds could be utilized to prop up the lame Voluntary Action Program and create a trojan horse polluters slush fund. “This is the governor’s attempt to whitewash his EPA,” charged Jane Forrest Redfern, environmental projects director for Ohio Citizen Action in a November 1, 2000, Cleveland Plain Dealer article. Dedicated professionals, veteran Ohio EPA bureaucrats attempted to rectify the problem. According to the October 4, 2000, Cleveland Plain Dealer, “EPA staffers who shared some of the environmentalists’ concerns, at one point launched a quiet but unsuccessful campaign to disband the program.”

For six years after the Voluntary Action Program’s 1996 implementation, the U.S. EPA refused to extend program participants federal immunity and threatened to decertify the Ohio EPA due to the VAP’s expansive, inhibiting secrecy provisions and tangible lack of transparency. In a brokered, bifurcated modification to the Ohio VAP that “frankly doesn’t make sense at all,” according to Ohio Public Interest Research Group director Amy Simpson (Akron Beacon Journal, February 24, 2001), an alternative “memorandum of agreement” VAP track with enhanced public access was crafted. Companies that elect the original, opaque, “classic” option, which conceals under an embargo the extent and nature of contamination, will not be afforded U.S. EPA liability insulation. “Why Ohio would want a two-headed monster is beyond me,” quipped the Ohio Environmental Council’s Jack Shaner. In SCA’s case, the jaundiced, green and incompliant wants to hide what you can’t see.

Mark Chesler
Oberlin, Ohio