Ohio Administrative Code
Title 3745 - Ohio Environmental Protection Agency
Chapter 3745-300 - Voluntary Action Program
Section 3745-300-11 - Remediation
Universal Citation: OH Admin Code 3745-300-11
Current through all regulations passed and filed through September 16, 2024
[Comment: For dates of non-regulatory government publications, publications of recognized organizations and associations, federal rules, and federal statutory provisions referenced in this rule, see rule 3745-300-15 of the Administrative Code titled "Incorporation by reference - voluntary action program."]
(A) Applicability and identification of when remedial activities are required.
(1)
Remedial activities shall be conducted to meet
applicable standards when a phase II property assessment conducted in
accordance with rule
3745-300-07
of the Administrative Code reveals that concentrations of chemicals of concern
(COCs) in any environmental media fail to comply with any of the
following:
(a)
Applicable standards as determined from the generic
numerical standards in accordance with rule
3745-300-08
of the Administrative Code.
(b)
Applicable
standards as determined from a property-specific risk assessment conducted in
accordance with rule
3745-300-09
of the Administrative Code.
(c)
Background levels
as determined in accordance with rule
3745-300-07
of the Administrative Code, when background levels are the applicable
standards.
(d)
Any other applicable standard of this
chapter.
(2)
Each complete exposure pathway for environmental media
determined in accordance with paragraph (F)(1) of rule
3745-300-07
of the Administrative Code shall comply with an applicable standard determined
in accordance with this chapter. When a complete exposure pathway does not
comply with an applicable standard, the volunteer shall implement a remedy in
accordance with this rule. Implementation of a remedy under the voluntary
action may be deferred or excluded, as applicable, for any complete exposure
pathway that is in compliance with paragraph (D) of this rule.
(3)
An institutional
control in the form of a use restriction, or activity and use limitation, as
applicable, shall be established in accordance with this rule to apply
applicable standards to a restricted land use, pursuant to paragraph (F)(5) of
rule
3745-300-07
of the Administrative Code.
(4)
An operation and
maintenance plan shall be prepared and implemented in accordance with paragraph
(F) of this rule for a property that relies on one or more of the
following:
(a)
Engineering controls that are necessary to maintain applicable standards
following issuance of a no further action letter.
(b)
Any on-going
remedy employed at a property that does not yet meet applicable standards at
the time that a no further action letter is issued. Such remedial activities
shall achieve applicable standards within five years after the no further
action letter issuance date, inclusive of verification, or such other time
frame agreed to by the director in accordance with an operation and maintenance
agreement. In the case of any complete exposure pathway to indoor air due to
vapor exposure from environmental media, the indoor air applicable standards
shall be met prior to occupancy of the building.
(c)
The evaluation,
response, and other activities that are implemented to comply with critical
resource ground water response requirements in accordance with paragraph (E)(5)
of rule
3745-300-10
of the Administrative Code.
(d)
The evaluation,
response, and other activities that are implemented to comply with off-property
pathway deferral or exclusion response requirements in accordance with
paragraph (D) of this rule.
(B) Compliance with other laws. Remedial activities conducted under this chapter and Chapter 3746. of the Revised Code shall be conducted in compliance with all applicable laws, regulations, rules, resolutions, and ordinances, including but not limited to the following:
(1)
Chapter 3734. of the Revised Code.
(2)
Chapter 6111. of
the Revised Code.
(3)
Chapter 3704. of the Revised Code;
(4)
The Safe Drinking
Water Act, including the requirements applicable to underground injection
control wells.
(5)
Rule
3745-9-03 of the
Administrative Code, including the requirements for proper construction,
sealing, repairing, and abandonment of monitoring wells.
(6)
The laws and
regulations administered by the occupational safety and health
administration.
(C) Remedial activities. When remedial activities are required to be conducted at a property pursuant to paragraph (A) of this rule, one or more of the following remedial activities, if utilized to determine compliance with applicable standards, shall have been conducted and documented. To support a no further action letter for a property, the remedial activity shall be conducted and documented prior to issuance of the no further action letter.
(1)
Remediation.
Remediation shall be capable of attaining applicable standards within the
following time frame:
(a)
If remediation has not achieved applicable standards
prior to issuance of the no further action letter for the property, an
operation and maintenance plan prepared in accordance with this rule for
continued implementation of the remediation shall be included with the no
further action letter.
(b)
If the remediation has not achieved applicable
standards upon issuance of the no further action letter, the no further action
letter shall demonstrate that the remediation is capable of attaining the
applicable standards, inclusive of verification, within five years after the no
further action letter issuance date or other time frame agreed upon by the
director in an operation and maintenance agreement, in accordance with this
rule. Until there is verification that the remediation meets applicable
standards, the property shall remain protective of public health and safety and
the environment through use of interim measures or other remedial
activities.
(2)
Institutional controls. Institutional controls (use
restrictions or activity and use limitations, as applicable), shall meet the
following criteria:
(a)
Establish restrictions or limitations on use of the
property that mitigate or eliminate risk or an exposure pathway to human
receptors in order to achieve applicable standards.
(b)
Be consistent
with the criteria for representative exposure assumptions in accordance with
paragraph (D)(3)(b) of rule
3745-300-09
of the Administrative Code, as applicable.
(c)
Be effective at
eliminating or mitigating exposures to human receptor populations sufficient to
meet the risk goals described in rule
3745-300-08
or
3745-300-09
of the Administrative Code, as applicable.
(d)
Be capable of
being monitored, maintained and enforced by the owner or operator of the
property during the period of time which the control is used to comply with
applicable standards.
(e)
Be transferrable with the property and valid in an
instrument recorded with the county recorder in the same manner as a deed to
the property during the time relied upon to comply with applicable
standards.
(f)
Be recorded with the county recorder in the same manner
as a deed to the property, consistent with the requirements to record documents
that are required for the voluntary action program.
(g)
Be established
through an environmental covenant pursuant to Chapter 5301. of the Revised Code
in the case of activity and use limitations.
(h)
Be overseen by a
central management entity as follows:
(i)
In the case of
restricted residential land use at a property that relies on on-going
implementation of remedial activities, the environmental covenant or
environmental use limitations shall provide for a central management entity to
oversee compliance with the activity and use limitations, engineering controls,
and any other remedial activities that are relied upon for compliance with
applicable standards.
(ii)
In the case of commercial land use, a central
management entity may be used to oversee the institutional
controls.
(3)
Engineering
controls. Engineering controls shall meet the following criteria:
(a)
Be effective and
reliable for the climatic conditions and activities at the property to which
the control shall be applied.
(b)
Be consistent
with the criteria in paragraph (D)(3)(b)(iv)(b) of rule
3745-300-09
of the Administrative Code, as applicable.
(c)
Be effective at
eliminating or mitigating exposures to receptor populations sufficient to meet
the risk goals of rule
3745-300-08
or
3745-300-09
of the Administrative Code, as applicable.
(d)
Be reliable
during the period of time the control is used to achieve or maintain applicable
standards.
(e)
Be capable of being monitored and maintained as
required by an operation and maintenance plan developed and implemented in
accordance with this rule.
(f)
Be able to
demonstrate that receptor exposure meets applicable standards.
(g)
Be overseen by a
central management entity as follows:
(i)
In the case of
restricted residential land use that relies on ongoing implementation of
remedial activities, the operation and maintenance plan and agreement shall
provide for a central management entity to oversee compliance with engineering
controls or other remedial activities that are relied upon for compliance with
applicable standards.
(ii)
In the case of commercial land use, a central
management entity may be used to oversee the engineering
controls.
(4)
Critical resource
ground water activities. The evaluation, response, and other activities
required to protect off-property receptors when concentrations of COCs in
critical resource ground water exceed unrestricted potable use standards shall
be implemented in accordance with rule
3745-300-10
of the Administrative Code. The activities are provided in paragraphs (E)(3)
and (E) (7) of rule 3745-300-10 of the Administrative Code.
(5)
Off-property
pathway deferral and exclusion. The evaluation, response, and other activities
required to apply any pathway deferral or exclusion shall be implemented in
accordance with paragraph (D) of this rule.
(6)
Interim measures.
Interim measures shall be in place for a property when applicable standards
have not yet been achieved. At a minimum, interim measures shall mitigate the
risks associated with complete exposure pathways to human receptor populations
until the property complies with applicable standards through a permanent
remedy. Institutional controls or engineering controls used as interim measures
shall be consistent with the criteria in paragraphs (C)(2) and (C)(3) of this
rule.
(7)
Risk mitigation measures. Risk mitigation measures
shall effectively eliminate or reduce the current or reasonably anticipated
risk to persons who would be exposed to concentrations of COCs in environmental
media that exceed applicable standards or the risk is uncharacterized.
(a)
Risk mitigation
measures shall be utilized to protect workers and other persons who would be
exposed to COCs in excess of applicable standards as a result of construction
activities.
(b)
Risk mitigation measures are necessary when
construction activities do any of the following:
(i)
Breach the point
of compliance for direct contact with soil for properties that rely on
institutional controls to achieve the applicable standard.
(ii)
Breach an
engineering control, such as pavement or a soil cap, intended to eliminate
direct-contact exposure to COCs in environmental media.
(iii)
Result in
direct contact with ground water which has not been demonstrated to meet
applicable standards for this exposure pathway.
(c)
If the risk
mitigation measures are necessary for the property to meet applicable standards
after issuance of the no further action letter for the property, the risk
mitigation measures shall be implemented through a risk mitigation plan in
accordance with paragraph (G) of this rule.
(8)
Ground water use
limitations. Restrictions on the extraction or use of ground water for any
purpose, potable or otherwise, developed in accordance with paragraph (E)(2) of
rule
3745-300-10
of the Administrative Code in order to achieve applicable standards for ground
water, shall be applied to all ground water zones beneath the property, unless
a property-specific investigation conducted in accordance with rule
3745-300-07
of the Administrative Code demonstrates the following:
(a)
The ground water
zone made subject to the use restriction has been demonstrated to have no
interconnection to an unrestricted ground water zone.
(b)
Selective use
restrictions shall be implemented for each ground water zone, as necessary, to
reliably restrict the use of each ground water zone, except the specific
permissible uses that are demonstrated to ensure the following:
(i)
The continued
protection of all ground water zones that otherwise meet unrestricted potable
use standards in accordance with paragraph (F) (4) of rule
3745-300-07
and paragraph (D) of rule
3745-300-10
of the Administrative Code.
(ii)
Applicable
standards are met for all complete exposure pathways for the resulting ground
water use.
(D) Procedures to address complete exposure pathways to off-property receptors that cannot be remedied after a volunteer has applied diligent efforts. A volunteer may choose to either defer or exclude an off-property complete exposure pathway in accordance with the following:
(1)
Pathway deferral. When the volunteer has employed
diligent efforts to access an off-property area known or suspected to have a
complete exposure pathway but access has been denied, an off-property pathway
deferral shall be implemented by use of an operation and maintenance plan
included in the no further action letter. The releases of hazardous substances
or petroleum that are associated with the deferral of a complete exposure
pathway remain subject to the covenant not to sue issued for the property as
long as the pathway deferral obligations continue to be implemented in
accordance with any applicable operation and maintenance plan and agreement and
rule 3745-300-11 of the Administrative Code. Compliance with applicable
standards associated with the pathway are deferred until access to the
off-property area is attained, and the remedy is implemented and verified in
accordance with this chapter. To justify the pathway deferral, the volunteer
shall demonstrate that the following have been completed:
(a)
Off-property
receptors. Off-property areas where receptors are located and are different
from the voluntary action property as follows:
(i)
Identification of
current or reasonably anticipated off-property receptors that may be exposed to
COCs from the voluntary action property, in accordance with paragraph (E)(6) of
rule
3745-300-07
of the Administrative Code.
(ii)
Identification
of current or reasonably anticipated exposure pathways to the off-property
receptors, in accordance with paragraph (F) of rule
3745-300-07
of the Administrative Code.
(b)
Communication.
Communication with owners of the off-property areas where the off-property
receptors are located as follows:
(i)
Communication to every owner of each receptor area
property of each complete exposure pathway, the applicable COCs, and the
potential risks with the COCs associated with the pathway
deferral.
(ii)
Explanation to every owner of each receptor area
property regarding the activities that might be reasonably employed to
investigate and remedy the pathway associated with the release from the
voluntary action property.
(iii)
Offer to pay
all costs associated with or to complete the assessment, and, as applicable,
remedial activities that are required to achieve applicable standards for the
complete exposure pathway related to releases from the voluntary action
property, including fair and reasonable compensation for repair of aesthetic
impacts to the off-property receptor area that result from the
activities.
(iv)
Offer to pay for all sampling costs after the
installation or implementation of a remedy to demonstrate the effectiveness of
the remedy.
(v)
Offer to pay or otherwise compensate for the cost of
operation and maintenance of engineering controls, if any.
(vi)
Document
discussions or correspondence with the owners that indicate the owner's refusal
to allow the volunteer the necessary access to complete assessment and, as
applicable, to conduct a reasonable remedy to achieve compliance with
applicable standards for the complete exposure pathway in accordance with this
chapter.
(vii)
Document, if applicable, any other reason that might
prevent access to complete assessment and installation of a reasonable remedy,
as necessary to comply with applicable standards for the complete exposure
pathway.
(c)
Notice to the owner of each receptor area property. The
volunteer shall provide a written notice to each owner of a receptor area
property. At a minimum, the written notice shall include the following:
(i)
Explanation of
the voluntary action program.
(ii)
Description of
the off-property pathways and potential risks associated with the COCs from the
voluntary action property.
(iii)
Location and
description of the off-property area locations to which the notification
applies.
(iv)
A statement that the volunteer shall contact Ohio EPA
within thirty days after the notice is sent to seek assistance to access the
off-property area.
(d)
Ohio EPA
assistance. Within thirty days after the notice required in paragraph (D)(1)(c)
of this rule is sent, the volunteer shall contact Ohio EPA to seek assistance
with access to an off-property area, as follows:
(i)
After the notice
required in paragraph (D)(1)(c) of this rule is sent, contact Ohio EPA to seek
assistance to allow the volunteer access to an off-property area to assess or
install a reasonable remedy.
(ii)
Upon request by
Ohio EPA, provide to Ohio EPA, in a manner prescribed by Ohio EPA, the
following:
(a)
A summary of the diligent efforts and pathway deferral demonstration pursuant
to paragraph (D)(1) of this rule.
(b)
A description of
the completed measures described in paragraphs (D)(1)(a) and (D)(1)(b) of this
rule.
(c)
Documentation of the notice provided to each owner of a
receptor area property, as required in paragraph (D)(1)(c) of this
rule.
(d)
Documentation of the discussions or correspondence with
the owners that indicate the owner's refusal to allow the volunteer the
necessary access to complete assessment and, as applicable, to conduct a
reasonable remedy to achieve compliance with applicable standards for the
complete exposure pathway in accordance with this chapter, pursuant to
paragraph (D)(1)(b)(vi) of this rule.
(e)
Any other
information the director deems necessary that may be relevant to assist with
justification that pathway deferral is appropriate for the off-property
receptor.
(iii)
If Ohio EPA gains access to an off-property area on
behalf of the volunteer, the volunteer shall continue to evaluate the current
or reasonably anticipated exposure pathways to the off-property receptors in
accordance with paragraph (F) of rule 3745-300-07 of the Administrative Code to
determine compliance with applicable standards in accordance with paragraph (I)
of rule
3745-300-07
of the Administrative Code.
(iv)
A statement or
statements of costs incurred by Ohio EPA shall be sent to the volunteer after
Ohio EPA's assistance is complete. The volunteer shall pay the costs in full
within sixty days after receipt of the statement, pursuant to paragraph (E) of
rule
3745-300-03
of the Administrative Code.
(v)
Reimburse Ohio
EPA actual costs incurred to aid in communication with the owner of the
receptor area property, as described in paragraph (D)(1)(d) of this
rule.
(e)
Timing. If Ohio EPA's assistance to seek access does
not result in access to an off-property area, the timing for inclusion of
pathway deferral in an operation and maintenance plan and issuance of a no
further action letter shall occur as follows:
(i)
If Ohio EPA's
efforts to assist with access pursuant to paragraph (D) (1)(d) of this rule
fail to obtain access needed for the volunteer to complete a remedy of any
off-property receptor area, include the pathway deferral in an operation and
maintenance plan prepared in accordance with paragraphs (D)(1)(f) and (F) of
this rule.
(ii)
Issue the no further action letter with an operation
and maintenance plan prepared pursuant to paragraphs (D)(1)(f) and (F) of this
rule within one hundred eighty days after Ohio EPA's efforts to assist with
access pursuant to paragraph (D)(1)(d) of this rule failed to obtain the needed
access.
(iii)
If more than one hundred eighty days have passed since
the volunteer or Ohio EPA last contacted the owner of a receptor area property
about access to an off-property area, the volunteer shall send notice to such
property owner at least thirty days prior to issuance of the no further action
letter. This notice shall contain the following:
(a)
Written
invitation to the owner of the receptor area property to re-initiate
discussions regarding the deferred pathway.
(b)
The information
required by paragraphs (D)(1)(c) to (D)(1)(c)(iv) of this rule.
(f)
Operation and maintenance plan. The certified
professional shall include an operation and maintenance plan in the no further
action letter prepared for the voluntary action property. The operation and
maintenance plan shall include the following:
(i)
The owner's name,
the property address, and a description of the receptor area property or
properties to which the pathway deferral applies.
(ii)
A map that shows
the receptor area property that is subject to the pathway
deferral.
(iii)
A description of the deferred pathway, including but
not limited to, the associated receptors, media, and COCs.
(iv)
Provision for
annual notification to the owner of the receptor area property, as
follows:
(a)
The operation and maintenance plan shall include a provision that the volunteer
or other person responsible for compliance with applicable standards shall
provide a written invitation to the owner of the off-property receptor property
to reinitiate discussions about the deferred pathway and access to implement
the remedy needed to achieve applicable standards.
(b)
The notice shall
include the information required by paragraphs (D)(1)(c)(i) to (D)(1)(c)(iv) of
this rule.
(v)
If the owner of the off-property receptor property
chooses to re-initiate discussions about the deferred pathway in response to
the annual notification sent in accordance with paragraph (D)(1)(f)(iv) of this
rule, the volunteer may enact a post-covenant not to sue remedy change pursuant
to paragraph (H) of this rule.
(2)
Pathway
exclusion. An off-property pathway exclusion from the release of liability in
the covenant not to sue shall be requested prior to issuance of a no further
action letter for the property if the volunteer has employed diligent efforts
to remedy the pathway. The pathway exclusion request shall be submitted under
affidavit by a certified professional on behalf of the volunteer. A certified
professional shall not rely upon a pathway exclusion in a no further action
letter unless the request was approved by the director. The director may
approve or deny the volunteer's request to exclude the pathway.
(a)
Prior to
submittal of a pathway exclusion request, the following shall be evaluated and,
unless nonapplicable, shall be documented as completed:
(i)
Off-property
receptors. Off-property areas where receptors are located and are different
from the voluntary action property:
(a)
Identification of current or reasonably anticipated
off-property receptors that may be exposed to COCs from the voluntary action
property, in accordance with paragraph (E)(6) of rule
3745-300-07
of the Administrative Code.
(b)
Identification of
current or reasonably anticipated exposure pathways to the off-property
receptors, in accordance with paragraph (F) of rule
3745-300-07
of the Administrative Code.
(ii)
Communication.
Communication with owners of the off-property areas where the off-property
receptors are located:
(a)
Communication to each owner of each receptor area
property of each complete exposure pathway, and the potential risks with the
COCs associated with the pathway exclusion.
(b)
Explanation to
the owner of each receptor area property regarding the activities that might be
reasonably employed to investigate and remedy the pathway associated with the
release from the voluntary action property.
(c)
Offer to pay all
costs associated with the assessment, and, as applicable, remediation of the
pathway related to releases from the voluntary action property, including fair
and reasonable compensation for the repair of aesthetic impacts to the
off-property receptor area that result from the activities.
(d)
Offer to pay for
all sampling costs after the installation or implementation of a remedy to
demonstrate the effectiveness of the remedy.
(e)
Offer to pay or
otherwise compensate for the cost of operation and maintenance of engineering
controls, if any.
(f)
Document discussions or correspondence with the owners
that indicate the owner's refusal to allow the volunteer the necessary access
to an off-property area to complete assessment and, as applicable, to conduct a
reasonable remedy to achieve compliance with applicable standards for the
complete exposure pathway in accordance with this chapter.
(g)
Document, if
applicable, any other reason that might prevent access to an off-property area
to complete assessment and installation of a reasonable remedy, as necessary to
comply with applicable standards for the complete exposure
pathway.
(iii)
Criteria for off-property sediment pathways. The
provisions of paragraphs (D)(2)(a)(ii) and (D)(2)(b) of this rule are not
required for off-property sediment pathways. Rather, the volunteer may choose
to evaluate the following, and include the demonstration of both in the request
for pathway exclusion:
(a)
Confirmation that on-property sources that migrate to
the surface water body are in compliance with applicable standards, in
accordance with paragraph (I) of rule
3745-300-07
of the Administrative Code.
(b)
Explanation of
why remedial activities pursuant to paragraph (C) of this rule at the
off-property sediment area are not feasible, and how approval of the pathway
exclusion request would result in the overall improvement of environmental
conditions related to the voluntary action activities.
(b)
Notice to property owner. If the volunteer applies
diligent efforts and still cannot assess or implement a remedy to address
off-property receptors, the volunteer shall provide a written notice to each
owner of a receptor area property. The written notice shall be provided to such
property owners prior to submittal of the pathway exclusion request to Ohio
EPA. At a minimum, the written notice shall include the following:
(i)
Explanation of
the voluntary action program.
(ii)
Description of
the off-property pathways and potential risks associated with the COCs from the
voluntary action property.
(iii)
Location and
description of the off-property area locations to which the notification
applies.
(iv)
A statement that the volunteer shall submit the pathway
exclusion request to Ohio EPA within thirty days after the written notice is
sent in order to request the director to review and approve the pathway
exclusion.
(v)
An explanation that the pathway exclusion, if approved,
excludes coverage of the pathway from any covenant not to sue that is issued
pursuant to section 3746.12 of the Revised Code
pertaining to the voluntary action.
(c)
Pathway exclusion
request. The pathway exclusion request provided by the certified professional
shall include the following:
(i)
The owner's name, the address, and a description of the
receptor property or properties to which the pathway exclusion request
applies.
(ii)
A map that shows the portion of the receptor property
area that is subject to the request for pathway exclusion.
(iii)
A description
of the complete exposure pathway, including but not limited to, the associated
receptors, media, and COCs.
(iv)
A summary of the
diligent efforts and completed measures described in paragraphs (D)(2)(a) to
(D)(2)(b)(v) of this rule.
(v)
Documentation of
the notice provided to each owner of a receptor area property, as required in
paragraph (D)(1)(c) of this rule.
(vi)
Documentation of
the discussions or correspondence with the owners, as applicable, that indicate
the owner's refusal to allow the volunteer the necessary access to the
off-property area to complete assessment and, as applicable, to conduct a
reasonable remedy to achieve compliance with applicable standards for the
complete exposure pathway in accordance with this chapter, pursuant to
paragraph (D)(1)(b)(vi) of this rule.
(vii)
All supporting
information that demonstrates completion of the measures described in
paragraphs (D)(2)(a) and (D)(2)(b) of this rule.
(d)
Costs. The
volunteer who enacts the pathway exclusion shall reimburse Ohio EPA for all
costs incurred for the review of the pathway exclusion request, and in
assistance with communication with the owner of the receptor property, as
follows:
(i)
Following Ohio EPA's assistance provided in support of the request for a
pathway exclusion, Ohio EPA shall send to the volunteer a statement of
costs.
(ii)
Within sixty days after receipt of the statement of
costs from Ohio EPA, the volunteer shall pay the cost in full, pursuant to
paragraph (E) of rule
3745-300-03
of the Administrative Code.
(e)
Request for
additional information. After the director receives a complete request for
review of a pathway exclusion, the director may request any additional
information which may be relevant to the approval or denial of the pathway
exclusion request. The information may be requested from the certified
professional, the volunteer, local jurisdictions, or residents. Ohio EPA may
attempt to contact owners of receptor properties to seek access to the
off-property area.
(f)
Criteria for approval or denial of the pathway
exclusion request. The director may approve or deny a request for pathway
exclusion, taking into consideration the following:
(i)
The director
shall first consider whether all applicable measures in paragraphs (D)(2)(a)
and (D)(2)(b) of this rule were met.
(ii)
The director may
consider whether approval of the requested pathway exclusion would result in
improved environmental conditions.
(g)
Timing. The time
frame of the director's approval or denial of a pathway exclusion request
includes the following options:
(i)
The director shall approve or deny a request for
approval of a pathway exclusion within ninety days after receipt of a complete
pathway exclusion request, as provided in paragraph (D)(2) of this
rule.
(ii)
If the director determines that an extension of time is
necessary to properly consider the pathway exclusion request, the director may
extend the time to approve or deny the pathway exclusion request. If the
director extends the time to consider the pathway exclusion request, Ohio EPA
shall notify the volunteer and other interested persons of such
extension.
(h)
If the pathway exclusion request is approved by the
director, the approved pathway exclusion may be applied to a no further action
letter that is submitted to Ohio EPA with a request for a covenant not to
sue.
(E) Verification that remedial activities are effective, and determination that applicable standards are met. When remedial activities are completed under this chapter, the volunteer shall verify that the remedial activities were implemented in accordance with this rule and resulted in compliance with applicable standards. At a minimum, verification shall include the following, as applicable:
(1)
When remedies are
completed to achieve compliance with applicable standards in accordance with
paragraph (I) of rule
3745-300-07
of the Administrative Code, the demonstration shall include the following, when
applicable:
(a)
Description of the implemented remedial activities that are
a part of the voluntary action, and the applicable standards for each remedial
activity.
(b)
Summary tables of the data collected that verify
compliance with applicable standards, based on the remedial activities
performed.
(c)
Documentation that each institutional control relied
upon was developed in accordance with paragraph (C) of this rule, and was
implemented in accordance with rule
3745-300-13
of the Administrative Code.
(d)
Documentation
that each engineering control or remedy that requires operation or maintenance
under this rule is made the subject of an operation and maintenance plan and
agreement, as applicable, developed in accordance with paragraph (F) of this
rule.
(e)
Documentation that each risk mitigation measure under
this rule is made the subject of a risk mitigation plan, as applicable, in
accordance with paragraph (G) of this rule.
(f)
Demonstration
that each remedy implemented to comply with standards for a vapor intrusion to
indoor air pathway is made the subject of an evaluation in accordance with
paragraph (I)(3)(b) of rule
3745-300-07
of the Administrative Code. The evaluation shall verify that the concentrations
of each COC do not exceed any applicable standard as required by rule
3745-300-07
of the Administrative Code.
(g)
When a remedial
activity is completed after the issuance of a no further action letter for
property that relies on the remedial activity, an affidavit from a certified
professional is required. The affidavit shall certify that applicable standards
are met, based on the remedial activity verification.
(2)
Termination of remedial activities. To document that a
remedial activity is no longer necessary for compliance with applicable
standards and may be terminated, the volunteer or other person responsible for
remedy implementation shall demonstrate that the criteria in this rule have
been met. At a minimum, the demonstration shall include the following:
(a)
Description of
the remedial activity that is no longer necessary to maintain compliance with
applicable standards.
(b)
Identification of the information relied upon to
demonstrate the continued compliance with applicable standards without further
implementation of the remedial activity.
(c)
Information that
supports the verification necessary to document the termination of the remedial
activity in accordance with this rule and other criteria governing the remedial
activity, such as the criteria provided in an operation and maintenance plan or
agreement, environmental covenant, or risk mitigation plan.
(d)
An affidavit from
a certified professional, certifying that applicable standards are met without
further implementation of the remedial activity.
(e)
An affidavit from
the volunteer or other person responsible for remedy implementation that
attests to the completion of the remedy, demonstration of compliance with
applicable standards, or understanding that the remedy may be terminated based
on criteria in this rule and any other applicable criteria, as
applicable.
(F) Operation and maintenance plan and agreement.
(1)
Content of operation and maintenance plan. When a
remedy is required to have an operation and maintenance plan in accordance with
this rule, the volunteer shall develop and implement an operation and
maintenance plan that includes the following components as applicable, for each
of the remedial activities subject to the operation and maintenance plan:
(a)
A summary of the
applicable standards for the property and the purpose of the remedial
activities to achieve compliance with applicable standards.
(b)
A plan to
implement the remedial activities, including operation and maintenance and a
description of tasks that shall be performed to implement the operation and
maintenance of the remedial activities, including but not limited to, the
following:
(i)
Description of the tasks for standard operation of the remedial
activities.
(ii)
Description of the tasks and procedures to maintain the
remedial activities, including but not limited to a plan for periodic
preventive measures.
(iii)
Description of prescribed treatment or operating
conditions for the remedial activities, as applicable.
(iv)
Schedules to
implement remedial activities and for operation and maintenance
tasks.
(c)
A plan to evaluate the effectiveness of each remedial
activity shall be included in the operation and maintenance plan. At a minimum,
the plan shall include the following:
(i)
The purpose and
objective of the activities planned to evaluate the effectiveness of the
remedy.
(ii)
Description of the activities that shall be performed
to determine the effectiveness of the remedial activities in meeting or
maintaining compliance with applicable standards.
(iii)
Description of
the activities that shall be performed to evaluate or confirm assumptions and
predictions of a property-specific risk assessment conducted in accordance with
rule
3745-300-09
of the Administrative Code, if a property-specific risk assessment was
conducted.
(iv)
Description of the activities that shall be conducted,
to comply with the response requirements for critical resource ground water in
accordance with paragraphs (E)(3) to (E)(5) of rule
3745-300-10
of the Administrative Code, as applicable.
(v)
Summary of the
procedures developed in accordance with paragraph (F) of rule
3745-300-07
of the Administrative Code, if data collection, field test, sampling, or data
analysis activities are appropriate for the monitoring
activities.
(vi)
Description of the anticipated length and planned
frequency of each monitoring activity that shall be performed to evaluate the
effectiveness of the remedial activities.
(vii)
Description of
the monitoring and sampling activities that shall be conducted to determine the
effectiveness of the remedial activities to meet or maintain compliance with
applicable standards, as appropriate.
(d)
A description of
the type of equipment required to operate and maintain the remedial activities,
including the following:
(i)
Description of the monitoring and remedial equipment
that was installed or shall be utilized, and the criteria for installation and
the utilization.
(ii)
A schedule for the maintenance and replacement of
monitoring and remedial equipment, as appropriate for each remedial
activity.
(e)
A description of the reasonably anticipated adjustments
and criteria establishing when the adjustments to be taken to re-establish the
standard operation and maintenance of the remedial activities so that the
remedial activities remain effective.
(f)
A plan to address
potential problems with the remedial activities, if the remedial activities are
disrupted.
(g)
A description of all records that shall be kept to
document that the requirements of paragraphs (F)(1) and (F)(2) of this rule are
met.
(h)
A plan for termination of the remedial activities,
including but not limited to, the following:
(i)
An
identification and description of the data and information that shall be
collected to support the criteria for termination of the remedial activities
subject to the operation and maintenance plan to verify completion of the
remedial activities in accordance with paragraph (E)(2) of this
rule.
(ii)
An identification and description of the criteria for
termination, as appropriate, of the monitoring activity to verify completion of
the remedial activity in accordance with paragraph (E)(2) of this
rule.
(i)
A property map or maps that show the portion of the
property subject to the remedial activities under the operation and maintenance
plan. If any remedial activity, including any engineering control, applies to a
portion of the property, the operation and maintenance plan shall include a
survey plat that depicts the boundary of the portion of the property. The
operation and maintenance plan shall include a survey plat that depicts the
engineering control area location relative to the property boundary. The survey
plat shall be completed (signed and sealed) by a professional surveyor under
Ohio law.
(j)
Identification of the central management entity roles
and responsibilities, as applicable, in accordance with paragraph (C)(3) of
this rule.
(k)
Written cost estimate, in current dollars, that
itemizes the annual projected cost to implement the operation and maintenance
plan activities over a five-year period. At a minimum, the cost estimate shall
account for the following:
(i)
Costs of the reasonably anticipated repairs,
replacements, monitoring, and remedy verification activities, as
applicable.
(ii)
Costs of recordkeeping and reporting.
(iii)
Costs for a
third party to conduct the operation and maintenance plan
activities.
(iv)
Costs to implement the operation and maintenance plan
activities that are reasonably anticipated to occur over the next five years,
starting from the first activity required by the operation and maintenance
plan.
(2)
Report evaluation
of the effectiveness of remedial activities that are subject to an operation
and maintenance plan and agreement. At least once annually following issuance
of a covenant not to sue pursuant to Chapter 3746. of the Revised Code, or at
such other interval as agreed upon in an operation and maintenance plan or
agreement regarding the property, the volunteer or other person responsible for
implementation of the operation and maintenance plan and agreement, shall
submit documentation to Ohio EPA. The documentation shall be provided under
affidavit of a person in responsible charge or with knowledge of the
implementation of the remedial activities. At a minimum, the documentation
shall include the following:
(a)
The results from the evaluation activities performed in
accordance with paragraph (F)(1)(c) of this rule.
(b)
A description of
the activities, conducted to address remedy problems encountered, if any,
including emergencies.
(c)
A demonstration of the performance of all remedial
activities subject to the operation and maintenance plan.
(d)
A demonstration
of how compliance with applicable standards is met or maintained, including the
measures used to maintain the remedy's protectiveness of public health and
safety and the environment.
(e)
A description of
reports, documents, and maintenance records to be provided.
(f)
A projection of
the yearly cost estimate to operate and maintain remedial activities, and other
updates to the current annual cost estimate in the operation and maintenance
plan, based on the actual implementation costs during the prior
year.
(3)
When an operation and maintenance plan is required in
accordance with this rule, the operation and maintenance plan shall be prepared
and implemented, as appropriate to maintain applicable standards, prior to
issuance of the no further action letter. The no further action letter shall
include the operation and maintenance plan. If an operation and maintenance
plan is required for an engineering control or other remedy following the
receipt of a covenant not to sue issued pursuant to Chapter 3746. of the
Revised Code, the operation and maintenance plan may be included in a remedy
revision notice prepared pursuant to paragraph (H) of this
rule.
(4)
Operation and maintenance agreement. When requesting a
covenant not to sue from the director pursuant to this chapter and Chapter
3746. of the Revised Code for a property subject to a remedial activity that
requires an operation and maintenance plan pursuant to this rule, the volunteer
shall enter into an operation and maintenance agreement with the
director.
(a)
At a minimum, the operation and maintenance agreement shall include the
following:
(i)
An operation and maintenance plan for the property developed in accordance with
paragraphs (F)(1) and (F)(2) of this rule and approved by Ohio
EPA.
(ii)
A provision that the volunteer agrees to implement the
operation and maintenance plan.
(iii)
A provision
that requires periodic reporting to Ohio EPA of monitoring results and
evaluation of the effectiveness of the remedial activities subject to the
operation and maintenance plan, in accordance with paragraph (F)(2) of this
rule, to the extent the operation and maintenance plan does not provide for
such periodic reporting.
(iv)
A provision that requires notification to Ohio EPA
within a specified time of all adjustments made to the operation and
maintenance activities as specified in the operation and maintenance plan, and
of implementation of the contingency plan activities, if any, specified in the
operation and maintenance plan.
(v)
A provision that
requires that proposed modifications to a remedial activity, or the operation
and maintenance plan, other than adjustments to operation and maintenance plan
activities developed in accordance with paragraphs (F)(1)(e) to (F)(1)(f) of
this rule and prescribed by the operation and maintenance plan, shall be
submitted to Ohio EPA for review and approval prior to implementation of the
proposed modification. The provision shall be written in a manner consistent
with paragraph (H) of this rule, including but not limited to updates to
sampling, data evaluation, demonstration, and verification activities based on
the modifications.
(vi)
A provision that requires that prior notification,
within a specified reasonable time frame, be provided to the prospective buyers
or transferees of the property of the remedy subject to the operation and
maintenance plan and agreement.
(vii)
A provision
that requires notice to Ohio EPA within a specified reasonable time frame of
each transfer of the property subject to the operation and maintenance plan and
agreement.
(viii)
A provision that requires notice to Ohio EPA within a
specified reasonable time frame of the transfer of the operation and
maintenance plan and agreement, and of the terms and conditions of the
transfer.
(ix)
A provision that requires the establishment and
description of financial assurances that the remedy subject to the operation
and maintenance plan and agreement shall remain operational and functional. The
financial assurance mechanism or instrument established pursuant to this rule
shall be based on a current cost estimate over the next five years of
implementation of the operation and maintenance plan, starting from the first
activity required by the operation and maintenance plan, and shall be subject
to updates based on adjustments made to the cost estimate prepared and
submitted with the operation and maintenance plan in accordance with paragraph
(F)(1)(k) of this rule. Unless otherwise approved by Ohio EPA, the financial
assurance established and described for purposes of this rule shall apply the
following:
(a)
Equal or exceed the projected yearly updates to the cost estimate to operate
and maintain the remedial activities prepared in accordance with paragraph
(F)(2)(f) of this rule.
(b)
Designate the director as beneficiary to the financial
assurance established under this rule.
(c)
Prepare and
establish financial assurance based on the criteria for selection, wording,
use, duration, approval, establishment, and termination of mechanisms or
instruments provided in rules
3745-27-16
to
3745-27-18
or
3745-66-40
to
3745-66-48
of the Administrative Code.
[Comment: Financial assurance for purposes of this rule applies the financial assurance criteria given by Ohio EPA rules for solid waste and hazardous waste facility post-closure care activities.]
(x)
A provision for
inspection of the property by the director or the director's authorized
representatives to determine compliance with the operation and maintenance plan
and agreement.
(xi)
Other provisions necessary to protect public health and
safety and the environment or to demonstrate effectiveness of the remedial
activities subject to the operation and maintenance plan or
agreement.
(xii)
Approval of the termination of the remedial activities
subject to the operation and maintenance plan and agreement may be requested
with proper documentation and demonstration, including verification that the
remedial activity is no longer needed to comply with applicable standards in
accordance with paragraph (E) of this rule.
(b)
The operation and
maintenance agreement may specify a reasonable time frame within which the
property shall attain applicable standards through the remedial activities
specified in the operation and maintenance plan or agreement.
(c)
Operation and
maintenance agreements may be transferred by the volunteer to another person by
assignment or in conjunction with the acquisition of title to the property that
is the subject of the agreement. The volunteer may choose to but is not
required to transfer any operation and maintenance agreement to another person
(e.g., the subsequent property buyer). The term "other person responsible for
operation and maintenance plan and agreement implementation" is defined in rule
3745-300-01
of the Administrative Code for this purpose.
(G) Risk mitigation plans. When risk mitigation measures are to be employed after issuance of a no further action letter, a risk mitigation plan shall be developed and implemented as follows:
(1)
At a minimum, the
risk mitigation plan shall include the following components:
(a)
A description of
the purpose of the risk mitigation plan.
(b)
A summary of the
potential health risks associated with the COCs at the
property.
(c)
A description of the specific precautions against
exposure to be taken at the property.
(d)
Directions on how
to handle environmental media at the property that may contain
COCs.
(e)
Provisions regarding when to implement the risk
mitigation plan at the property.
(f)
Provisions
regarding where to implement the risk mitigation plan at the property. If the
entire property is not subject to the risk mitigation plan, a plat of survey
completed (signed and sealed) by a professional surveyor under Ohio law that
shows the portions of the property subject to the risk mitigation plan shall be
attached to and referenced in the risk mitigation plan.
(g)
A property map or
maps that show the property subject to the risk mitigation plan, including the
survey plat, if required by paragraph (G)(1)(f) of this rule.
(h)
Provisions to
give notice of the risk mitigation plan activities to contractors,
subcontractors, and other persons working in areas where risk mitigation
measures are necessary.
(i)
A summary explanation of the precautions that each
contractor shall require of and communicate to the contractor's employees and
subcontractors.
(j)
For property where a covenant not to sue is requested,
provisions to annually notify the director as to whether or not implementation
of the risk mitigation plan occurred, and if implemented, notification of the
events that required implementation of the risk mitigation plan, the exposures
to hazardous substances or petroleum that may have occurred, and the risk
mitigation measures undertaken in accordance with the risk mitigation
plan.
(k)
The criteria for termination of the risk mitigation
plan, as appropriate.
(2)
For a covenant
not to sue issued pursuant to Chapter 3746. of the Revised Code, the risk
mitigation plan is developed as a separate plan for implementation as a
condition of a covenant not to sue.
(H) Post covenant not to sue remedy changes, as follows:
(1)
A volunteer, including persons responsible for
compliance with applicable standards, may revise an existing remedy or remedies
relied upon to meet applicable standards. In order to ensure a covenant not to
sue issued pursuant to Chapter 3746. of the Revised Code remains effective, the
volunteer shall do the following:
(a)
Continue to comply with all existing institutional
controls, engineering controls, operation and maintenance plan activities, risk
mitigation measures, and other remedies required for compliance, until the
existing remedies are replaced or terminated under this
chapter.
(b)
Collect any data necessary to scope and support the
remedy revision in accordance with rule
3745-300-07
of the Administrative Code.
(c)
Implement the
remedy revision in accordance with this chapter, and as follows:
(i)
For remedial
activities that do not conflict with an existing requirement in an operation
and maintenance plan or agreement, institutional control, or risk mitigation
plan, remedial activities may be conducted at any time without Ohio EPA
approval by the volunteer or persons responsible for compliance with applicable
standards. If Ohio EPA approval is desired, the remedy shall be implemented
prior to any request for approval. Paragraphs (H)(2) and (H)(3) of this rule
describe the process to obtain Ohio EPA approval.
(ii)
For remedial
activities that conflict with an existing requirement in an operation and
maintenance plan or agreement, institutional control, or risk mitigation plan,
Ohio EPA's approval of the modification is required before the remedial
activities are implemented. Paragraphs (H)(2) and (H)(3) of this rule describe
the process to obtain Ohio EPA approval. Ohio EPA review of the remedy revision
request requires at least ninety days to complete.
(d)
Take any steps
necessary to ensure that the property complies with all applicable standards
prior to, during, and after the remedy revision.
(e)
Ensure remedial
activities are implemented in accordance with this rule.
(2)
Remedy revision documentation. If paragraph (H)(1)(c)(i) of this rule applies,
the volunteer may choose to demonstrate to Ohio EPA that additional remedial
activities comply with applicable standards and submit the remedy revision
documents after the remedy was implemented. If paragraph (H)(1)(c)(ii) of this
rule applies, the volunteer shall provide the remedy revision documents to seek
Ohio EPA approval to ensure that proposed remedial activities comply with
applicable standards. The remedy revision documents shall be in the format
prescribed by Ohio EPA, and shall include the following:
(a)
A description of
the remedial activities necessary to achieve or maintain compliance with
applicable standards.
(b)
A statement in an affidavit from the certified
professional that the property complies with applicable standards through
implementation of one or more of the remedial activities in accordance with
this rule and paragraph (I) of rule
3745-300-07
of the Administrative Code.
(c)
Both a
description and a reference list of the data, information, records, and
documents relied upon by the certified professional to determine and verify
that the property complies with applicable standards.
(d)
A description of
any remedial activity that the certified professional concluded is no longer
relied upon for compliance with applicable standards, with supporting
documentation for termination of the remedial activity in accordance with
paragraph (E) of this rule.
(e)
If compliance
with applicable standards requires a new or revised institutional control, each
such institutional control shall be developed as an activity and use limitation
in accordance with paragraphs (C) and (E) of this rule, and shall be consistent
with rule
3745-300-13
of the Administrative Code, as applicable.
(f)
If compliance
with applicable standards relies on an engineering control, a new or revised
operation and maintenance plan and agreement, as applicable, shall be developed
with regard to the engineering control in accordance with paragraph (F) of this
rule.
(g)
If compliance with applicable standards relies on a
risk mitigation measure, a new or revised risk mitigation plan, as applicable,
shall be developed in accordance with paragraph (G) of this
rule.
(h)
A request for remedy revision approval in accordance
with paragraph (H) (3) of this rule.
(3)
Request to Ohio
EPA for remedy revision approval. Ohio EPA review of the remedy revision
request requires at least ninety days to complete. A volunteer who submits a
remedy revision notice and requests a remedy approval letter shall do the
following:
(a)
Include copies of all relevant data, information, records, and documents
referenced in paragraph (H)(2)(c) of this rule.
(b)
Respond to
questions or requests from Ohio EPA sufficient for the director to issue a
remedy approval letter and any new or modified engineering control, operation
and maintenance plan or agreement, institutional control, or risk mitigation
plan.
(c)
Reimburse Ohio EPA for actual costs incurred to review
the remedy revision notice and prepare and process the remedy approval letter,
and new or modified operation and maintenance plan or agreement, institutional
control, or risk mitigation plan, or other remedial activities or
documentation, as applicable. The applicant shall establish a direct billing
schedule for receipt of such costs charged pursuant to paragraph (E) of rule
3745-300-03
of the Administrative Code. A statement of costs shall be sent to the applicant
after the request is approved, denied, or withdrawn. The applicant shall pay
the costs, in full, within sixty days after receipt of the statement of
costs.
(4)
A remedy revision that includes the modification or
establishment of institutional controls shall apply the criteria of paragraph
(F)(5) of rule 3745-300-07 of the Administrative Code for development of
activity and use limitations. The institutional control shall be developed in
accordance with paragraphs (C) and (E) of this rule, and shall be consistent
with rule
3745-300-13
of the Administrative Code, as applicable.
(5)
A remedy revision
that requires the establishment or modification of an operation and maintenance
agreement shall have the agreement established or modified in accordance with
paragraph (F)(4) of this rule. The remedy revision shall provide financial
assurance in accordance with paragraph (F)(4)(a) of this rule, based on the
cost estimate calculated to implement the remedy revision.
(6)
A remedy revision
that involves a land use change that cannot be supported by data gathered for
the original no further action letter requires issuance of a new no further
action letter in support of the land use change.
Replaces: 3745-300-11
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