Issue(s): Former Drycleaners, Environmental Due Diligence (EDD), No Further Action (NFA), Rescinded NFA/Covenant Not to Sue (CNS)
BLDI was retained by a national consulting firm in 2019 to assist with EDD work for a site at which the NFA/CNS had been rescinded by the Ohio Environmental Protection Agency (OEPA) due to fraud by a former Ohio Voluntary Action Program (VAP) Certified Professional (CP).
An audit by OEPA found significant concentrations of perchloroethylene (PCE) and trichloroethylene (TCE) present in soil and groundwater which conflicted with data developed by the CP who issued NFA. In 2019 the client wished to address the contamination at the site and mitigate their environmental risk using Ohio VAP. The process started with an Ohio VAP-compliant Phase I Environmental Property Assessment (meets ASTM E1527 standard with some additional requirements). Follow-up Phase II investigation further defined the contamination identified by OEPA.
Three distinct saturated geologic units were identified with PCE and TCE found to be potentially migrating off-site in one of them. The greatest concern was not potential exposures to the PCE and TCE but, rather, cost and complexity to define the entire extent of contamination per Ohio VAP, especially the need to assess the deeper saturated formation by installing wells using telescoping methods (i.e. double-cased wells) to prevent cross-contamination of units.
Soil gas sampling documented potential exposures within the slab-on-grade commercial structure. Since vapor mitigation systems (VMSs) are commonplace today, installation of a VMS was not seen as a barrier to completing the EDD process. However, the expense, time, and complexity related to the off-site investigation necessary under the Ohio VAP, regardless of the low level of concern related to off-site exposure, was a significant barrier.
Enter H.B. 168, under which federal liability defenses were incorporated into Ohio statute. What had been a lengthy and expensive EDD program under Ohio VAP now become much simpler and predictable under the bona fide purchaser defense (BFPD). The data collected to-date to comply with Ohio VAP now appears sufficient to fully assess exposure pathways and continuing obligations. A VMS is in the design stage with the overall EDD process being completed within the next 60 days (end of September 2020).