• Certain USTs Now Eligible for Cleanup Under Ohio VAP
  • October 9, 2012 | Authors: John A. Heer; Bozana Lazic Lundberg
  • Law Firm: Walter & Haverfield LLP - Cleveland Office
  • Municipalities and other volunteers who wish to clean up brownfields which include underground storage tanks (USTs) will now find it easier to enter the Ohio Voluntary Action Program (VAP) to clean up the brownfields. Ohio’s General Assembly passed two laws which together resolve a longstanding impediment to brownfield cleanup involving USTs, now found in Ohio Revised Code Section 3737.88(A)(3).

    While the law in Ohio previously required those wishing to enter the VAP to first resolve issues involving USTs with the Bureau of Underground Storage Tank Regulations (BUSTR), the new law provides certain instances when USTs can now be addressed along with other cleanup issues entirely within the VAP. This should mean that cleanups could occur more swiftly because volunteers will not need to navigate two regulatory programs and secure No Further Action Letters from both BUSTR and the Ohio EPA.

    The new law allows a person who is not a "responsible person" under BUSTR to conduct a voluntary action for either:

    • A Class C release; or
    • A release, other than a Class C release, which is not already under enforcement, and the voluntary action will also address other hazardous substances or petroleum issues which are not under BUSTR’s authority.

    For USTs to be eligible to enter the VAP under the new law, the volunteer must be "a person who is not a responsible person, as determined by the fire marshal." A responsible person is the owner or operator of a UST. If the use of the UST stopped prior to 1984, the owner is deemed to be the party which owned the UST immediately before the use discontinued. However, if the use was after 1984, the owner is the party which owns the UST. Ownership includes legal, equitable, and possessory interests.

    In order to enter the VAP, the volunteer will need to submit a BUSTR-VAP Eligibility Determination Form to BUSTR for each release. Only BUSTR can determine whether sites may enter the VAP under the parameters in Ohio Revised Code Section 3737.88(A)(3). Once the cleanup under the VAP is complete, the Ohio EPA can issue a covenant not to sue which includes the USTs.