3745-300-09 Property-specific risk assessment procedures.

Rule Summary and Fiscal Analysis (Part A)

Ohio Environmental Protection Agency

Agency Name

Division of Emergency and Remedial Response (DERR)

Ildi Pallos

Division Contact

50 West Town Street, Suite 700 PO Box 1049 Columbus OH 43216-1049

614-644-2086 614-644-3146

Agency Mailing Address (Plus Zip) Phone Fax

3745-300-09

Rule Number

NEW

TYPE of rule filing

Rule Title/Tag Line Property-specific risk assessment procedures.

RULE SUMMARY

1. Is the rule being filed consistent with the requirements of the RC 119.032 review? No

2. Are you proposing this rule as a result of recent legislation? No

3. Statute prescribing the procedure in accordance with the agency is required to adopt the rule: 119.03

4. Statute(s) authorizing agency to adopt the rule: 3746.04

5. Statute(s) the rule, as filed, amplifies or implements: 3746, 5301

6. State the reason(s) for proposing (i.e., why are you filing,) this rule:

The previous version of this rule was rescinded and is being filed as new due to the extensive organizational and technical changes made as a result of the five-year rule review.

7. If the rule is an AMENDMENT, then summarize the changes and the content of the proposed rule; If the rule type is RESCISSION, NEW or NO CHANGE, then summarize the content of the rule:

The definitions were moved to OAC 3745-300-01 for consistency, and references were moved from this rule to OAC 3745-300-01 to facilitate updating referenece documents and subsequent rule references, as needed. Many comments were removed from the rule and will be developed as guidance documents instead.

Extensive technical changes were made, including simplifying language pertaining to the determination of applicable standards for specific petroleum fractions from OAC 3745-300-08; making uncertainly analysis associated with property-specific risk assessment an option instead of a requirement; eliminated the need for a property-specific risk assessment whenever complet exposure pathways to sediments exist on a property; clarified that sediments emanating from the property must meet applicable standards; and added sources for obtaining chemical-specifi values when calculating a property-specific soil saturation value.

8. If the rule incorporates a text or other material by reference and the agency claims the incorporation by reference is exempt from compliance with sections

121.71 to 121.74 of the Revised Code because the text or other material is generally available to persons who reasonably can be expected to be affected by the rule, provide an explanation of how the text or other material is generally available to those persons:

This rule contains references to the Ohio Administrative Code (OAC) and Ohio Revised Code (ORC). While copies of these rules and statutes are generally available to the public through libraries and online sources, including the Ohio EPA website, ORC section 121.76(A) exempts such references from the provisions of ORC sections 121.71 through 121.75.

This rule also contains references to the Code of Federal Regulations (CFR) and various technical documents and electronic databases. These references are generally available through libraries, Ohio EPA and U.S. EPA web sites, and web pages identified in the rule.

CFR references have also been dated to reference the specific version of the rules. ORC section 121.75(D) exempts such references from the requirements of ORC sections 121.71 through 121.74.

9. If the rule incorporates a text or other material by reference, and it was infeasible for the agency to file the text or other material electronically, provide an explanation of why filing the text or other material electronically was infeasible:

Due to the voluntary nature of the program, the rules reference a large amount of technical information that the private sector can use in site assessment and cleanup. It is infeasible to file such a large amount of material electronically. In addition, some of the technical data is only available as an electronic database. The

documents are generally available at Ohio public libraries and the state library of Ohio, or on the web pages provided in the rule. Information and copies may also be obtained by writing to the Voluntary Action Program, Lazarus Government Center, PO Box 1049, Columbus, OH 43216-1049.

http://www.epa.state.oh.us/derr/volunt/volunt.html

10. If the rule is being rescinded and incorporates a text or other material by reference, and it was infeasible for the agency to file the text or other material, provide an explanation of why filing the text or other material was infeasible:

Not Applicable.

11. If revising or refiling this rule, identify changes made from the previously filed version of this rule; if none, please state so:

The Legislative Service Commission asked for the refiling of this rule since it was filed as a pdf file without page numbers. The page numbers have been added.

12. 119.032 Rule Review Date:

(If the rule is not exempt and you answered NO to question No. 1, provide the scheduled review date. If you answered YES to No. 1, the review date for this rule is the filing date.)

NOTE: If the rule is not exempt at the time of final filing, two dates are required: the current review date plus a date not to exceed 5 years from the effective date for Amended rules or a date not to exceed 5 years from the review date for No Change rules.

FISCAL ANALYSIS

13. Estimate the total amount by which this proposed rule would increase / decrease either revenues / expenditures for the agency during the current biennium (in dollars): Explain the net impact of the proposed changes to the budget of your agency/department.

This will have no impact on revenues or expenditures.

$0.0

not applicable - program is voluntary

14. Identify the appropriation (by line item etc.) that authorizes each expenditure

necessitated by the proposed rule:

not applicable - program is voluntary

15. Provide a summary of the estimated cost of compliance with the rule to all directly affected persons. When appropriate, please include the source for your information/estimated costs, e.g. industry, CFR, internal/agency:

Participation in the Voluntary Action Program (VAP) and the rules involved is totally voluntary on the part of the participant. The costs and fees for participating in the program can vary significantly depending on the size and scope of the cleanup involved. As a result, any cost associated with partcipation in the program would be based on a site-specific basis.

16. Does this rule have a fiscal effect on school districts, counties, townships, or municipal corporations? No

17. Does this rule deal with environmental protection or contain a component dealing with environmental protection as defined in R. C. 121.39? Yes

You must complete the Environmental rule Adoption/Amendment Form in order to comply with Am. Sub. 106 of the 121st General Assembly.

Page E-1 Rule Number: 3745-300-09

Environmental Rule Adoption/Amendment Form

Pursuant to Am. Sub. H.B. 106 of the 121st General Assembly, prior to adopting a rule or an amendment to a rule dealing with environmental protection, or containing a component dealing with environmental protection, a state agency shall:

(1) Consult with organizations that represent political subdivisions, environmental interests, business interests, and other persons affected by the proposed rule or amendment.

(2) Consider documentation relevant to the need for, the environmental benefits or consequences of, other benefits of, and the technological feasibility of the proposed rule or rule amendment.

(3) Specifically identify whether the proposed rule or rule amendment is being adopted or amended to enable the state to obtain or maintain approval to administer and enforce a federal environmental law or to participate in a federal environmental program, whether the proposed rule or rule amendment is more stringent than its federal counterpart, and, if the proposed rule or rule amendment is more stringent, the rationale for not incorporating its federal counterpart.

(4) Include with the proposed rule or rule amendment and rule summary and fiscal analysis required to be filed with the Joint Committee on Agency Rule Review information relevant to the previously listed requirements.

(A) Were organizations that represent political subdivisions, environmental interests, business interests, and other persons affected by the proposed rule or amendment consulted ? Yes

Please list each contact.

Furnished upon request.

(B) Was documentation that is relevant to the need for, the environmental benefits or consequences of, other benefits of, and the technological feasibility of the proposed rule or amendment considered ? Yes

Please list the information provided and attach a copy of each piece of documentation to this form. (A SUMMARY OR INDEX MAY BE ATTACHED IN LIEU OF THE ACTUAL DOCUMENTATION.)

The Voluntary Action Program (VAP) worked with the multidisciplinary board (MDB) to update the VAP rules. The MDB, representing a variety of stakeholders vested in brownfield cleanup, was formed under Ohio Revised Code 3746.03 to advise Ohio EPA on the development and revision of the VAP rules. (The MDB recommendations are part of Attachment A - Interoffice Communication.) The

Page E-2 Rule Number: 3745-300-09

changes to the rules were sent out for Interested Party Review, and the comments and responses to the comments are included as Attachment A - Summary of Interested Party Comments to Rule Changes. The interested parties include the members of the MDB, the Certified Professionals, Certified Laboratory representatives, the list of respondents to the agency's web page indicating an interest in the VAP rules, and the Site Assessment and Brownfield Program's interested party list. A copy of this list will be furnished upon request.

(C) Is the proposed rule or rule amendment being adopted or amended to enable the state to obtain or maintain approval to administer and enforce a federal environmental law or to participate in a federal environmental program ? No

Is the proposed rule or rule amendment more stringent than its federal counterpart ? No

(D) If this is a rule amendment that is being adopted under a state statute that establishes standards with which the amendment is to comply, is the proposed rule amendment more stringent than the rule that it is proposing to amend? No

Not Applicable

ATTACHMENT A

State of Ohio Environmental Protection Agency

STREET ADDRESS: MAILING ADDRESS:

Lazarus Government Center 50 W. Town St., Suite 700

Columbus, Ohio 43215

TELE: (614) 644-3020 FAX: (614) 644-3184

www.epa.state.oh.us

P.O. Box 1049 Columbus, OH 43216-1049

INTEROFFICE COMMUNICATION

To: Laura H. Powell, Acting Director, Ohio EPA

From: Amy Yersavich, Manager, VAP through Cindy Hafner, Chief, DERR

Subject: VAP Multidisciplinary Board Recommendations re: VAP's 2007 Five-Year Rule Review

Date: January 30, 2007

The VAP began the process of reconvening the MDB and beginning the five-year rule review for the majority of the VAP rules in March 2006. The VAP is statutorily required to both review the rules every five years, and to convene the MDB to assist in that effort. The MDB completed their work in December 2006 with the help of three workgroups, whose members were chosen by the MDB and VAP staff and management. The recommendations made by the MDB are now being forwarded to you with this briefing memo requesting your review and approval. The detailed recommendations you will find attached to this memo involve the following VAP rules.

OAC 3745-300-01 - Definitions Rule OAC 3745-300-02 - Eligibility Rule

OAC 3745-300-06 - Phase I Property Assessment Rule OAC 3745-300-07 - Phase II Property Assessment Rule OAC 3745-300-08 - Generic Numerical Standards Rule OAC 3745-300-09 - Property Specific Risk Assessment Rule OAC 3745-300-10 - Ground Water Rule

OAC 3745-300-13 - NFA Rule

OAC 3745-300-15 - Remediation Rule

For your convenience I've summarized important highlights concerning the MDB recommendations below. Please note that all final MDB recommendations have been

reviewed by DERR Central and District Office staff and have met with their collective approval. VAP's MDB recommended the following:

· To reconcile with the differences between the VAP's Phase I Assessment rule and

U.S. EPA's recently adopted All Appropriate Inquiry rule, guidance should be prepared for Certified Professionals (CPs) and volunteers clearly outlining the differences in both purpose and content between the two regulations. This will allow the CPs and volunteers to more easily perform one assessment to satisfy the requirements of both rules.

· Making revisions to the Phase II rule in order to clarify confusing data analysis and interpretation issues. Such issues include how to deal with infrequent and erroneously high concentrations that are not reflective of a data set for a specific contaminated area; how to ensure a volunteer receives accurate laboratory analysis for less common chemical contaminants and how to compare Certified Laboratory (CL) data to older non-CL data sets including data analyzed by a mobile laboratory.

· Forming a multidisciplinary workgroup to look into what requirements would be necessary to license mobile laboratories as VAP CLs. Having mobile CLs can greatly improve a CP's efficiency conducting assessments in the field and possibly increase the number of voluntary actions performed.

· Replacement of outdated sediment screening level values and ecological risk assessment guidance documents with newer, improved and more technically defensible guidance documents and values.

· Revisions to the Phase II rule language to stress the importance of adhering to appropriate data quality objectives (DQOs) and field QA/QC to help ensure that voluntary action sampling is conducted in compliance with the VAP rules the first time around. Hopefully this will reduce the number of comments back and forth between Agency staff and CPs during NFA reviews and, consequently, shorten NFA review times.

· Revising the VAP rule definition of background to mirror the VAP statutory definition which provides CPs and volunteers greater flexibility in determining what can be considered background under that VAP. In addition, more statistical tests for appropriately determining background will be added to Phase II rule to assist CPs and volunteers.

· Formation of another multidisciplinary workgroup, this one focused on developing defensible background levels for certain contaminants in various regions throughout the state. Regional background values, which are being researched by other states and have already been developed for the City of Chicago, could be an extremely

valuable resource to VAP CPs and possibly increase the number of VAP projects around the state.

· Revising the Phase II rule to allow incremental sampling which will broaden the range of field "tools" the CP has to work with and provide more representative contaminant concentrations under certain sampling situations in the VAP.

· Revising the language in the Generic Standards rule to clarify how to appropriately use all of the available Bureau of Underground Storage Tanks' (BUSTR) petroleum clean up standards which are required to be used, by VAP statute, for residential and commercial properties and can be used, if chosen by the volunteer and CP, for industrial properties. Rule revisions will also clarify how to meet points of compliance and deal with multiple chemical adjustment when applying BUSTR standards.

· Revising Phase II rule language, and Generic Standards rule language, if appropriate, to clearly state how to meet applicable standards for light aqueous phase liquids (LNAPL), also known as free product under the BUSTR rules. The Board recommends that the BUSTR standard of cleaning up free product, defined a as greater than 1/100 of a foot of LNAPL on ground water, to the extent practicable be adopted in the VAP.

· Revising Phase II rule language to highlight the importance of assessing the indoor air pathway, when appropriate, in the VAP. More advanced technical information about this pathway has become available in recent years and indoor air issues are showing up at more and more at VAP properties.

· Revising the Risk Assessment rule to update how sediment assessments are conducted in the VAP. The sediment assessment language in the VAP rules is confusing and some of the assessment techniques need to be updated to comport with the current science.

· Because resolving the issue of adopting screening values for a cleanup program that is largely privatized is very complex, VAP and DERR risk assessment staff should continue to research this issue with the hope that screening levels can be adopted for use in the VAP during the next rule revision. Screening values would be extremely beneficial for CPs and volunteers; however, there are many complicated technical issues to resolve before VAP can comfortably adopt such a tool.

If you would like to meet with Cindy, myself or any of my staff to discuss these proposed rule revisions and other Board recommendations in more detail, please let me know. Although I hope to receive a response from you within a few weeks so that we may stay on our timeline to meet the five-year rule revision schedule, I realize that the transition to a

new Agency Director and new Governor may make that goal unrealistic. Please let me know if there is anything I can do to make this review and approval process work more smoothly for you and your staff in the Director's Office.

cc: Ed Kitchen, Rules Coordinator, Director=s Office Peter Whitehouse, Assistant Chief, DERR

Mark Navarre, Supervising Attorney, Legal Frank Robertson, Supervisor, VAP

Ann Fischbein, Staff Attorney, Legal Catherine Stroup, Staff Attorney, Legal VAP/CO Files

ATTACHMENT A

Voluntary Action Program 2006-2007 Multidisciplinary Board Recommendations Concerning the Five-Year Review of VAP Rules January 2007

Background

On March 24, 2006, in accordance with the requirements of VAP statute ORC 3746.03, Director Koncelik appointed sixteen individuals from various professional and public interest disciplines to serve on the VAP Multidisciplinary Board (MDB) for the purpose of reviewing and recommending revisions to the following VAP rules:

· OAC 3745-300-01 Definitions Rule

· OAC 3745-300-02 Eligibility Rule

· OAC 3745-300-06 Phase I Property Assessment Rule

· OAC 3745-300-07 Phase II Property Assessment Rule

· OAC 3745-300-08 Generic Numerical Standards Rule

· OAC 3745-300-09 Property-Specific Risk Assessment Rule

· OAC 3745-300-10 Ground Water Rule

· OAC 3745-300-13 NFA Rule

· OAC 3745-300-15 Remediation Rule

The MDB held its first meeting at Ohio EPA on May 31, 2006 where DERR Chief Cindy Hafner and VAP staff provided background about the Program and the Five-Year Rule Review under the facilitation of Kirk Nofzinger (CDO). Prior to the meeting, the MDB was provided with a compilation of recommended rule revisions and issues which had been brought to the attention of VAP management by Certified Professionals, Certified Laboratories, VAP interested parties and central and district office VAP staff. The recommended rule revisions and issues were discussed by the Board and VAP during the May 31 meeting and the Board recommended a few additional issues be included in the compilation. The Board also recommended that the following workgroups be formed by appointing appropriate technical professionals and other interested parties recommended by the Agency and the Board members:

· Workgroup 1 - Sampling and Data Issues Workgroup - working primarily on issues concerning the Phase II and Ground Water rules.

· Workgroup 2 - Total Petroleum Hydrocarbons (TPH) and Non Aqueous Phase Liquids (NAPL) Issues Workgroup - working primarily on issues concerning petroleum compounds in the Generic Standards, Risk Assessment, Ground Water and Remedy rules.

· Workgroup 3 - Generic Standards and Pathway Completeness Issues Workgroup - working primarily on issues concerning the Generic Standards, Risk Assessment and Remedy rules.

The MDB determined that they would tackle the issues concerning the VAP Phase I rule. The primary issue regarding this rule was how to deal with the differences in the VAP's Phase I rule and U.S. EPA's recently finalized All Appropriate Inquiry rule which provides CERCLA liability protection to innocent landowners and prospective purchasers. Additionally, the MDB asked the VAP to tackle some rule revisions without the assistance of the workgroups. The rule issues the MDB asked the VAP to work on internally are listed below along with the workgroup recommendations approved by the MDB.

From June 2006 through December 2006, the MDB met on a monthly basis to discuss and make recommendations regarding the Phase I rule issues and to hear workgroup recommendations regarding the other rules. The remainder of this document contains a compilation of the VAP Five-Year Rule Review issues and recommendations approved by the Board.

Phase I Rule Recommendation from the MDB

Issue #1

U.S. EPA's All Appropriate Inquiry rule (AAI) has been finalized and went into effect in November 2006. The AAI rule is similar but not exactly the same as VAP's Phase I rule. Should the VAP Phase I rule be revised to adopt some or all of the provisions of the AAI rule it does not currently contain?

Recommendation

The MDB decided not to revise the VAP Phase I rule to comport with the AAI rule because the purposes of the two rules are different. The purpose of the VAP Phase I rule is to determine if releases of hazardous substances or petroleum have or may have occurred on the property. The purpose of the AAI rule is to provide standards and practices for all appropriate inquiries at a property in order to establish the innocent landowner defense, the bona fide prospective purchaser liability protection, or the contiguous property owner liability protection under CERCLA.

Instead of revising the VAP Phase I rule, the MDB recommends that a VAP technical decision compendium document (TDC) be developed that describes what a volunteer or VAP Certified Professional (CP) must do if they are conducting an AAI and want to meet the VAP Phase I requirements at the same time.

Recommendations Approved by MDB for VAP to work on Internally

Issue #1

There have been voluntary actions where a laboratory method does not exist for quantifying an individual chemical-of-concern (COC); however, it is possible to analyze an element or component of the COC and calculate the concentration of the COC. An example would be to measure the concentration of aluminum to calculate the concentration of the target COC, aluminum sulfate. How should these situations be handled?

Recommendation

Clarifications should be made in the Laboratory rule, the Phase II rule and the Generic Standards rule to direct the volunteer to analyze for components of a COC when the situation merits it, i.e., when no analytical method for the COC exists, but an accurate methodology for determining the COC concentration by analyzing an element or component of the COC exists.

The VAP only has statutory authority to oversee the investigation and cleanup of and provide liability release for hazardous substances and petroleum. Therefore it is recommended that COCs with listed generic standards in the Generic Standards rule that are components of hazardous substances, but are not hazardous substances as discrete chemicals, will be removed from the COC list. Example: Aluminum for soil and Nitrates for potable use. The requirement to analyze compounds that are components of hazardous substances will be dependent upon the release type identified through the Phase I and Phase II.

Issue #2

Currently, there is no mechanism within VAP rules to eliminate data points that appear to be erroneously high compared to other data points from the same area, but cannot be duplicated. The concern often expressed by both CPs and VAP staff is that these erroneously high data points are not representative of site conditions and in some cases should be eliminated from the larger data set that determines the representative concentration for the area in question. In addition, a mechanism should be developed to deal with infrequent and low concentration detections of COCs on a property.

Recommendation

Revisions should be made in the Phase II to remove the language that in all cases requires the volunteer or CP to meet an applicable standard for any COC detected on the property, regardless of the COC concentration. Revised language should be added to the Phase II rule to allow for the

appropriate elimination of erroneously high data points and infrequent and low concentration detections of a COC.

Issue #3

The Remediation rule currently states that interim measures must be used for a property when a permanent remedy has not been completed prior to issuance of an NFA, or when it is reasonably anticipated that the temporary use of the property following issuance of the NFA will result in the property failing to comply with applicable standards. Therefore, the current rule requires that interim measures must be employed to mitigate the existing and reasonably anticipated exposure pathways to human receptors until a permanent remedy is established to meet and maintain applicable standards regardless of whether or not any actual unacceptable risk is posed prior to the establishment of the permanent remedy.

Recommendation

The VAP recommends that the rule language contained in paragraph (D)(6) of the Remediation rule be revised to state that interim measures do not always need be employed. Circumstances when interim measures must be employed should be those circumstances when an actual exposure may occur and would cause an unacceptable risk to human health or the environment. Such circumstances, which VAP staff will clarify in the rule, would be the presence of reasonably anticipated, short-term exposures that would cause unacceptable cancer or non- cancer risk.

Issue #4

If complete exposure pathways to important ecological resources exist, an ecological risk assessment must be conducted to demonstrate that ecological resources have been protected. This assessment may be qualitative or quantitative. The language in the Risk Assessment rule is confusing with respect to when to conduct qualitative versus quantitative assessments. Clarification is needed in order to determine when pathways to ecological receptors are complete, as well as when a qualitative or quantitative risk assessment is warranted. VAP rules cite USEPA guidance for conducting a quantitative assessment, but no guidance documents are cited for use in a qualitative assessment.

Recommendation

The VAP recommends that the references to USEPA guidance be deleted in paragraph (E) of the Risk Assessment rule and in its place the Ohio EPA Division of Emergency and Remedial Response's Ecological Risk Assessment Guidance, dated February 2003 (or updated guidance, if available; it is currently being updated by DERR) be adopted. This

guidance document contains all the appropriate information from the USEPA guidance and also clearly outlines the ecological risk assessment process, and includes detailed information on how to perform Level I-Level IV assessments (scoping, screening, baseline and field baseline).

Workgroup 1 Recommendations Approved by the MDB

Issue #1

Some volunteers are confused by the Ohio Voluntary Action Program's (VAP) environmental assessment process and the nomenclature used to describe the process. Many volunteers believe the environmental assessment and cleanup process follows a three step process: 1) Phase I; 2) Phase II; and 3) remedial activities. However, the VAP process combines all of the Phase II and remedial activities in the Phase II step. In addition, the remedy rule, OAC 3745-300-15, does not require a separate report to describe remedial activities conducted at a property. As a result, it is difficult for a volunteer to understand the scope and cost involved in a particular Phase II project. Volunteers often have very basic questions about the VAP program, such as: how to hire a CP; how to know if she/he is doing a good job; and what is the meaning and significance of risk.

Recommendation:

A remedial activities summary should be added to the VAP Phase II environmental site assessment report. It is recommended that reporting requirement for remedial activities be added to the end of the Phase II rule (OAC 3745-300-07(I)).

In addition, the VAP needs a better marketing tool for the general public so they can better understand the voluntary action process. It is recommended that the VAP create a booklet that generally describes the process. As an example, West Virginia has produced "A Plain Language Guide to Human Health Risk Assessments in the West Virginia Voluntary Clean up Program" which provides a good outline that the VAP could follow.

Issue #2

VAP rules require the volunteer to collect quality assurance/quality control (QA/QC) samples during the Phase II investigation. However, it has been noted that some QA/QC samples may not be necessary because of QA/QC procedures required of certified labs prior to certification. Elimination of the requirement for these QA/QC samples would result in a cost saving to the volunteer. However, the volunteer or CP should still have the opportunity to collect QA/QC samples that they believe may be needed as a check on data quality.

Recommendation

The Rule 3745-300-07(E)(1)(c) is written in such a way that it allows the CP or volunteer flexibility in determining the types and quantities of field QC necessary. The minimum items listed in (E)(1)(c) (ii) are the generally accepted QC parameters used in environmental investigations. However, the Phase II report does not require a summary or explanation of the whether data quality objectives were met, which is crucial in determining whether the Phase II was conducted appropriately. Therefore, it is recommended that paragraph (I) of the Phase II rule include the following additional report requirement:

· A summary of the analytical data collected and a determination of its usability based on quality control information (e.g., did the data meet the data quality objectives).

The Agency should also develop a TDC providing more detailed guidance regarding what the new data quality portion of the Phase II report should include. Items to include are detection limits, duplicate/replicate identification, blank contamination, reporting in dry weight vs. wet weight, any QC issues noted in the laboratory case narrative, field conditions that would impact data quality, and other items that have a direct bearing on interpreting the quality and validity of the data. A sample narrative can be included that describes how the data quality objectives (DQOs) were met.

Issue #3

Should mobile laboratories be certified under the VAP?

Recommendation

Most of the MDB members agreed that certification of mobile labs at this time might not be possible based on current certification requirements, but the possibility should be explored. The Agency should learn more about the certification process for mobile labs. The Board recommends that the Agency consult with a few of the Certified Labs (CLs) who also operate mobile laboratories to discuss their interest in participating in a pilot study. The focus of the pilot study would be to determine if a mobile lab can achieve the accuracy and precision requirements of a certified lab for a limited number of test methods, and if a mobile lab can comply with QA/QC requirements for certification.

Concurrent with the above-mentioned CL pilot study, the Board also recommends that the VAP form a "Mobile Lab Certification (MLC)" workgroup, composed of both Agency and external members with environmental laboratory expertise, to review procedures associated with approving a mobile lab as a CL. The MLC workgroup will develop

procedures for VAP mobile lab certification. The MLC workgroup could "test" the certification process through a simulated evaluation using the Ohio EPA's mobile laboratory. This will be useful in the event that an external mobile laboratory approaches the VAP for certification.

Issue #4

Currently, mobile laboratory data is used as screening data whereby volunteers use the data to help focus investigations on specific identified areas on the property. Data obtained from a mobile lab is currently excluded from being confirmed and the data cannot be included within the data set which is used to show a site meets applicable standards. Should mobile laboratory data be used for more than screening at a VAP site?

Recommendation

The Board recommends that language be included in the Phase II rule to clarify the use of mobile lab data as a screening technique. Rule language should also be included that would allow the use of mobile lab data within a VAP data set that could be used to demonstrate a property meets applicable standards as long as it is confirmed with data from a Certified Laboratory.

The Board also recommends that, as needed in the future, the VAP develop the following minimum supporting documentation in the form of a TDC or guidance document.

· Additional QA/QC and calibration requirements that VAP wants beyond those already specified by the method or manufacturer.

· Screening technologies VAP will accept as part of the data set for determining applicable standards.

Issue #5

The VAP currently allows the inclusion of older data sets that do not contain VAP CL data when investigating a subject property. This older data set must be confirmed with new data from a VAP CL, but the VAP rules are confusing about how non-CL data should be appropriately confirmed in order to be used in the applicable standards demonstration.

Recommendation

The Board recommended that Phase II rule language be adopted to clarify that the volunteer or CP must quantitatively compare the non-CL and CL dataset and demonstrate statistically that there is no significant difference between the two data sets.

This would allow the CP the flexibility to choose a statistical approach (e.g., t-test, nonparametric test, etc.) or any other measure of similarity

that may be appropriate. The workgroup proposes that a TDC document be developed to describe a few generally accepted approaches.

Additionally, the Phase II rule should be modified so that the number of confirmatory samples be raised from a minimum of three or 10 percent of the original data set, whichever is greater; to a minimum of eight or 10 percent of the original data set, whichever is greater. This will provide the Agency with greater confidence in the accuracy and validity of the confirmatory sample data.

Issue #6

Multi-incremental sampling is a sampling methodology not specifically mentioned within VAP rules. Currently, VAP rules imply discrete or point sampling for identified areas. Incremental sampling provides for the collection of many samples over a broader aerial extent. Samples are composited (combined) into substantially fewer samples and analyzed. This method provides the investigator a more accurate average concentration of contamination across the study area. The method also increases the probability of hitting potential "hot spots" that may have otherwise been missed during conventional discrete sampling. Should the VAP rules be revised to include the use of incremental sampling?

Recommendation

The Board recommends rule language be added to paragraph (D)(6)(c)(iii) of the Phase II rule allowing the use of incremental sampling as a method to demonstrate an exposure point concentration. In addition, a comment is recommended to be added to paragraph (D)(1)(e) of the Phase II rule (which covers sampling of environmental media) that specifically mentions incremental sampling as an acceptable technique. Guidance documents will be referenced in the comment (e.g., EPA/600/R-92/128 - Preparation of Soil Sampling Protocols: Sampling Techniques and Strategies).

Issue #7

Sub-parceling properties - When identified areas or exposure units cover large portions of the property concerns can arise when the property is sub-parceled after the CNS has been issued. Whether a property meets VAP applicable standards depends on how identified areas or exposure units are designated, and how those areas are sampled. When a property is sub-parceled the underlying premise for a property's compliance with applicable standards, and hence the validity of the CNS, can be brought into question. Rule revisions or guidance should be developed to address these concerns when deciding how to designate identified areas and/or exposure units.

Recommendation

The Board recommends that language be included in a fact sheet that is attached to the CNS and filed with the CNS as part of the deed to a VAP property (see fact sheet reference under Workgroup 3, Issue/Recommendation #3). This fact sheet, which would also contain the point of compliance explanations detailed in Workgroup 3's recommendation, should also contain the exposure unit/identified area assumptions relied upon in the No Further Action letter. The language would make it clear that the property has been remediated for a specific end use. The language would further state that if the described land use is changed or modified in some way that is different than the premise of the NFA letter, the release of liability for the property may no longer be applicable.

Issue #8

Should the statistical technique used for calculating a COC background concentration in the Phase II rule be reconsidered? Other statistical methods are now available that may be appropriate for inclusion in the Phase II rule.

Recommendation

The Board recommends that the existing background language remain in the Phase II rule as an option. Additional background calculation alternatives should also be provided as options in the rule along with a requirement to conduct an outlier statistical test on the background distribution for the property.

The Board proposes to cite two existing USEPA guidance documents1 that base the determination of background on a comparison of statistical means (e.g. the method previously recommended by the MDB for the confirmation of older data sets).

Both USEPA documents mentioned above recommend comparing the means of the distribution of background and the impacted area. The existing background calculation in the Phase II rule allows for a comparison between a background number (determined by the mean added to twice the standard deviation) and site concentrations. Though the calculation is rather simple and should be retained as an option for volunteers and CPs, it can lead to an over-estimation of a site background concentration that can result in over-remediation.

Issue #9

1 "Guidance for Comparing Background and Chemical Concentrations in Soil for CERCLA sites" (Sept. 2002) and "Statistical Methods for Evaluating the Attainment of Cleanup Standards - Volume 3: Reference-Based Standards for Soil and Solid Media" (1992).

The current VAP definition of background in the Definitions rule includes only naturally occurring substances and excludes substances from anthropogenic sources. However, the VAP statute (ORC 3746.01(C)) defines background as conditions at a property and areas surrounding a property that are unaffected by any current or past activities involving treatment, storage, or disposal of hazardous substances or petroleum. Should COCs from anthropogenic sources not related to release history be considered appropriate for background calculation?

Recommendation

The Board recommends that the definition of background, contained in the Definitions rule, be revised to mirror the VAP statutory definition. Because the statutory definition is more broadly defined than the current rule definition, the revised definition would allow the inclusion of anthropogenic sources within the context of a background determination. The Board also recommends that additional rule language be included in the background section of the Phase II rule that states a volunteer must provide a clear demonstration that the source is not a derivative of treatment, storage, or disposal of a hazardous substance or petroleum.

The Board also recommends that a multi-disciplinary workgroup be created to research and report upon area-wide background concentrations of chemicals of concern, specifically focused in urban areas. The workgroup would be chartered by Ohio EPA but is intended to be composed of members from academia, consulting, public entities, and any other interested parties. The goal of the workgroup would be to derive a composite database of background concentrations across large urban areas, which could be used practically as part of background determinations within the context of NFA letters. Such databases have been developed for large urban areas in other states with positive results.

Issue #10

Before a volunteer or certified professional thinks about beginning a VAP Phase II property assessment, the first step that needs to be contemplated is establishing DQOs. In other words, is the CP proposing to collect samples that will ultimately demonstrate that the site meets applicable standards for the end use of the property?

The DQO language that is currently provided in rule generally relates to the quality of samples collected. The current DQO language does not specifically address the holistic approach of whether a sampling strategy is appropriate for the final use of the property. Clarification of the DQOs will make the process easier for a volunteer to understand. Additionally,

DQOs can serve as consumer protection for volunteers as DQOs can inform the volunteer that the services and level of detail the volunteer is contracting is appropriate for their voluntary action.

Recommendation

The Board recommends that a DQO section be added to the Phase II rule. The DQO paragraph should be placed at the front end of the rule to emphasize the need for reviewing the DQO process early in the investigation. As needed, the VAP will revise the Phase II rule language to incorporate the DQO language. There will also be a reporting requirement added in paragraph (I) of the Phase II rule that will broadly state that the volunteer must provide a summary of the analytical data collected and a determination of its usability based on quality control information, noting how the data met the DQOs.

Workgroup 2 Recommendations Approved by the MDB

Issue #1

Carbon ranges for analyzing TPH in the VAP differ from those ranges used for TPH analysis in BUSTR. This leads to confusion when a CP or volunteer with petroleum contamination on site elects to meet BUSTR standards (which are a requirement for all VAP properties relying upon generic standards for a residential or commercial land use) or a UST was present at the site and the CP or volunteer is planning on using the BUSTR closure data for the voluntary action.

Recommendation

Carbon ranges for TPH should be changed to comport with the carbon ranges used by the BUSTR in their Corrective Action rule. Light distillate fractions should cover the range C6-C12, middle fractions C10-C20 and heavy fractions C20-C34.

Issue #2

Generic numeric standards for petroleum are currently addressed in the Generic Standards rule, paragraph (B)(3)(a) for direct contact soil standards and paragraph (C)(3)(a) for unrestricted potable use ground water standards for ground water. However, BUSTR has developed additional generic standards for additional exposure pathways, such as the leaching to ground water pathway. This causes confusion with volunteers and CPs regarding whether all of the BUSTR standards for pathways should be applied for petroleum or just the direct contact soil and potable ground water standards.

Recommendation

Generic standards for petroleum in the VAP should be addressed in a separate paragraph in the Generic Standards rule that essentially covers the following Board recommendations:

- Generic standards for petroleum at commercial, residential and industrial properties are the standards established in rules adopted under division (B) of section 3737.882 of the Revised Code (i.e. the BUSTR authorizing statute) as provided in division (B)(1) of section 3746.04 of the Revised Code.

-The rule should clarify that BUSTR has developed generic standards for additional pathways beyond the soil direct contact and ground water ingestion pathways identified in the Generic Standards rule, and that VAP will recognize those standards as applicable standards in an NFA.

-The rule should clarify that the BUSTR generic standards are not adjusted for multiple chemicals, and that these BUSTR standards do not need to be incorporated into a multiple chemical adjustment of VAP standards.

- The rule should clarify that the point of compliance for the various VAP applicable standards are determined within OAC 3746, and that the point of compliance for BUSTR sites may be different and not applicable to VAP sites.

Issue #3

Non-Aqueous Phase Liquids (NAPL), frequently referred to as "free product," are not specifically addressed in the VAP rules. Free product may or may not contain hazardous substances or petroleum that present risk to human health and the environment, and those hazardous substances, if present, may or may not be soluble in ground water. A rule revision should clarify whether or not free product is a media or a contaminant and also what the ground water response requirements are for properties with free product.

Recommendation

It is recommended that NAPL not be defined as a media. It should be instead defined as a contaminant. A definition of free product should be established as a light non-aqueous phase liquid (LNAPL) that has accumulated to greater than 1/100th of a foot on ground water'. The distinction of or clarification of LNAPL vs. dense non-aqueous phase liquid (DNAPL) is made by not defining DNAPL. When free product is present on VAP sites the rule should lead the volunteer or CP to determine that

unrestricted potable use standards are not met for the property. The rule revisions should essentially cover the following:

• Define free product as "greater than 1/100th of a foot of non- aqueous phase liquid on ground water".

• Free product is considered a contaminant that needs to be assessed and remediated if necessary.

• The presence of free product would exclude ground water from being considered suitable for unrestricted potable use, even if the contaminants in dissolved phase do not pose a risk to human health or the environment.

Issue #4

Clarification is needed in the VAP rules for evaluating exposure pathways when free product is present at a property. The VAP rules currently cap the concentration of chemicals in soil at the soil saturation limit within the point of compliance. The rules are not as clear for other exposure pathways or other media, especially those related to the potable use of ground water. Also, the rules do not specify how to address the migration of free product off-property. BUSTR's approach to free product for petroleum releases is to require its removal to the maximum extent practicable. This approach should be considered and adopted, where appropriate, in the VAP rules.

Recommendation

See the attached flowchart (Attachment A) which shows the proposed exposure pathways and remedies for free product at a VAP property. Changes to the VAP rules will be made so that the remedies for free product comport with this Board recommended flowchart.

Workgroup 3 Recommendations Approved by the MDB

In addition to the Issues and Recommendations below, Workgroup #3 was tasked with researching possible changes in the development of the generic numerical standards for soil and ground water. Changes were made to the inputs of the probabilistic model used to calculate generic standards based on

U.S. EPA guidance documents issued since the 2002 rule revision. These include:

1. Supplemental Guidance for Developing Soil Screening Levels for Superfund Sites (December 2002). This guidance was used to update inputs for commercial/industrial and construction worker scenarios.

2. Risk Assessment Guidance for Superfund (RAGS) Part E, Supplemental Guidance for Dermal Risk Assessment (July 2004). This guidance changes some of the variables used in the dermal pathway.

3. Assessing Intermittent or Variable Exposures at Lead Sites (November 2003). This document was used to recalculate the lead standard for the construction worker.

Additionally, the hierarchy for physical/chemical properties was revised and updates to toxicity criteria were incorporated. The greatest change in the numerical standards may be lower values for volatile COCs for the construction worker, due to recommendations made in the Supplemental Guidance for Developing Soil Screening Levels for Superfund Sites.

Issue #1

An uncertainty analysis, which is a requirement in the VAP Risk Assessment rule, is used to estimate the degree of confidence that is placed on the risk to a receptor determined through a property-specific risk assessment. Typically, though, the cancer risk and hazard index goals are viewed as applicable standards in the VAP, without taking into consideration any uncertainty associated with the risk values. Should the uncertainty analysis requirement be removed from the VAP Risk Assessment rule?

Recommendation

Rule revisions should be made to the Risk Assessment rule to clarify that an uncertainty analysis is an option that may be completed to support a decision that a property is protective of human health, safety and the environment, but is not required. Additionally, a VAP Technical Decision Compendium (TDC) document should be drafted to provide sample language for an acceptable uncertainty analysis.

Issue #2

The Generic Standards and Risk Assessment rules are not clear with respect to the number of significant figures allowed for the final hazard index and excess lifetime cancer risk goal. Specifically, is a hazard index of 1.49 or less acceptable and is a carcinogenic risk goal of 1.49 x 10-05 or less acceptable?

Recommendation

It is recommended that rule language in the Risk Assessment and Generic Standards rules be revised in order to clarify that one significant figure should be used when presenting all final cumulative human health

carcinogenic risk and non-carcinogenic hazard goals. A hazard index of

1.49 or less is acceptable and a carcinogenic risk goal of 1.49 x 10-05 or less is acceptable. Direction on how to perform a multiple chemical adjustment (MCA) will be removed from rule, where it has proved to be very confusing to interpret correctly. Instead, a VAP TDC document will be developed to provide direction on conducting an MCA in more simplistic terms. It is also recommended that the standards tables in Generic Standards rule be adjusted so that the generic numeric standards have two significant figures.

Issue #3

How should the point of compliance for commercial/industrial properties be determined? Currently, the minimum point of compliance for commercial/industrial properties is 2 feet below ground surface.

Redevelopment activities subsequent to issuance of a CNS could compromise this minimum point of compliance and jeopardize the validity of a CNS.

The 1996 VAP rules included language stating that depths greater than two feet may be necessary when chronic exposures to soils below two feet are reasonably anticipated. A comment in the 1996 rules reminded volunteers that uncharacterized soils, or soils exceeding applicable standards, may exist below the stated point of compliance, even though a voluntary action has been completed at the property. This language was removed from the rule in the 2002 VAP rule revision.

Recommendation

It is recommended that the 1996 rule and comment language be re- incorporated into the Generic Standards rule with appropriate revision language that will add clarify and provide examples. In addition, it is recommended that a requirement be added to the Phase II rule that requires the volunteer or CP to conduct, through a licensed surveyor, a baseline elevation survey to clarify the point of compliance at a property. This recommended baseline elevation survey to a two-foot contour after remedy will provide a clear point of reference and will provide useful information to verify the point of compliance for current and future property owners. Many volunteers and CPs already have this information for their properties. If they do not, it is easy and cost effective to conduct such a survey.

The VAP and Ohio EPA Legal Office will develop a fact sheet (or other appropriate legal instrument) to attach to the CNS, clearly explaining what soil point of compliance is, what it means to comply, and how the viability of the CNS depends upon maintaining the soil point of compliance. This fact sheet will better inform potential purchasers and future owners of VAP

commercial and industrial properties about the soil point of compliance upon which the CNS was based.

Issue #4

Should generic standards for the indoor air pathway be developed for the VAP?

Recommendation

At this time, it is recommended that the VAP address the indoor air pathway through guidance documents rather than developing generic standards. U.S. EPA guidance updates, with a revised Johnson & Ettinger model, is projected to be released sometime in 2007. Sampling methodologies, contaminant transport, and modeling of vapors to indoor air is an evolving science; therefore, promulgating generic numeric standards is not appropriate at this time. However the VAP rules should be revised to clarify that it is necessary to evaluate the indoor air pathway, when appropriate.

Issue #5

According to current language in the Risk Assessment rule, a sediment bioassay must be conducted to evaluate sediment toxicity for waters not having an aquatic life use designation. However, there are many streams in Ohio that have not yet been designated because Division of Surface Water (DSW) teams have not had an opportunity to conduct the necessary designation evaluations to date. To default to a sediment bioassay may jeopardize the biological integrity of the stream.

Recommendation

It is recommended that the Risk Assessment rule be revised to address this issue. Specifically, the rule language should explain that volunteers or CPs may either designate a stream that is currently undesignated, or assume that the stream is warm water habitat (WWH). The VAP certifies individuals to collect and analyze biological data for use in biosurveys.

These certified individuals may submit the data, along with the use designation recommendation, to OEPA Division of Surface Water staff. Ohio EPA will either concur with the recommended use designation, or will properly designate the surface water body. The volunteer or CP may then make the appropriate demonstration of compliance with applicable standards according to the use designation. Volunteers or CPs also have the option of hiring OEPA staff through the VAP Technical Assistance program to perform the biosurveys.

Issue #6

The Phase II Property Assessment rule requires the volunteer to evaluate receptor populations on or off the property that are reasonably anticipated to be exposed to chemicals of concern on or emanating from the property

via transport mechanisms including surface water migration. In the Phase II rule, the exposure pathway completeness determination also requires all sources, source areas, or affected media contributing to the pathway be evaluated for receptor populations, both human and ecological. However, the Risk Assessment rule primarily refers to an evaluation of sediments on the property and is not clear on whether the volunteer needs to evaluate chemicals of concern that are emanating from the property to adjacent off- property sediments. There appears to be conflicting rule language with respect to the terms: on-property, off-property, adjacent, adjoining, emanating and has emanated.

Recommendation

It is recommended that the rule language in Phase II and Risk Assessment rules be revised so that it is consistent in terminology. Rule revisions are also needed to make it clear that exposure pathways to sediments and surface water for the chemicals of concern on or emanating from the property must be evaluated.

Issue #7

The sediment benchmark hierarchy in the Risk Assessment rule includes the Threshold Effects Concentration (TEC) values and Region 5 Ecological Data Quality Levels (EDQLs). The hierarchy does not include the Sediment Reference Values (SRVs) developed by Ohio EPA's Division of Remedial Response with assistance from the Division of Surface Water. Should the SRVs be added to the hierarchy of chemical specific sediment values?

Recommendation

It is recommended that SRVs be added to the sediment benchmark hierarchy. The SRVs were developed by DSW and are considered to be representative of sites within the five ecoregions of Ohio that have not been influenced by chemicals of concern. Therefore, the SRVs can also be considered background levels for sediments when demonstrating compliance with applicable standards. A volunteer or CP may still develop site-specific background levels instead of using the SRVs as sediment background. It is also recommended that direction on how to collect and determine background sediment values be added to the Phase II rule.

Additionally, USEPA Region 5 EDQLs have been updated and renamed Ecological Screening Levels (ESLs). It is recommended that the EDQLs be replaced with the updated ESLs in the VAP rules.

Issue #8

The language in the Generic Standards and Risk Assessment rules which explains the demonstration of compliance with applicable standards for surface water and sediment is confusing. The VAP rules contain no

"lookup tables" for Volunteers to use in their demonstrations of compliance with sediment and surface water applicable standards, and volunteers and CPs are sometimes unsure whether or not they have actually met the standards.

Recommendation

It is recommended that surface water and sediment be combined within the Generic Standards rule to avoid confusion. Currently the surface water standards are contained in the Generic Standards rule and the sediment standards are contained in the Risk Assessment rule. VAP staff is currently working with DSW to reach an agreement on appropriate sediment and surface water standards for the VAP. Pending approval by DSW, it is recommended that the SRVs, TECs ESLs be listed as generic applicable standards for sediment and the Outside the Mixing Zone Average (OMZA) as the applicable standards for surface water in the Generic Standards rule. All bioassay and biosurvey requirements, i.e., biological standards, will remain in the Risk Assessment rule, with the rule clearly stating that if generic chemical-specific standards for surface water or sediments are exceeded, a volunteer will be required to ensure biological standards have been met.

Issue #9

Current language in the Risk Assessment rule states that a volunteer must compare the concentration of chemicals of concern in sediment to the hierarchy of screening level benchmarks. If these benchmarks are exceeded, the volunteer must then perform (and pass) bioassay or biosurvey, depending upon the aquatic use designation, in order to demonstrate that VAP applicable standards have been met. Some volunteers and CPs prefer to perform a bioassay or biosurvey first in order to show compliance with applicable standards. However, rule language dictates that a comparison to benchmarks must occur first.

Recommendation

It is recommended that a volunteer be allowed to perform a bioassay or biosurvey without first assessing COCs in sediment, as long as no Persistent, Bioaccumulative or Toxic chemicals (PBTs) exist on the site. The Risk Assessment rule language should be revised in order to support this allowance. The Risk Assessment rule language should also clarify that if bioassays or biocriteria do not demonstrate full compliance with applicable standards, sediment sampling will need to be conducted to determine the concentrations of the chemicals of concern in sediments. It is important to note that upstream sampling locations may not meet applicable standards due to different stressors including nutrient loading or chemicals of concern not related to the property, whereas sediments associated with the property may contain different chemicals of concern.

Sediment sampling is necessary to help determine the cause of nonattainment of applicable standards.

Additionally, a Volunteer may use data collected and interpreted by Ohio EPA's DSW (or individuals certified by VAP to collect and assess biocriteria) during biosurveys as part of the demonstration that applicable standards are met. However, rule language should clarify that appropriate use of historical data is required. Specifically, any changes in the watershed, release history, property characteristics or knowledge of recent data collection must be considered prior to inclusion of historical data within an applicable standards demonstration.

Issue #10

Many State Superfund and some voluntary clean-up programs allow the elimination of COCs through the use of preliminary screening values. For example, USEPA Region 9 publishes Preliminary Remediation Goals (PRGs) used as a preliminary step in the federal and Ohio EPA's Remedial Program. The VAP has not allowed a Volunteer/CP to eliminate COCs from demonstrating compliance with applicable standards at a property by eliminating them when below a stated screening level evaluation. Allowing the use of screening levels could help focus remedies on the actual risk drivers at VAP properties.

Recommendation

The Board recommends that this issue not be addressed during this rule revision. The Board acknowledged the potential utility of employing screening values, and recommended that VAP and other DERR risk assessment staff research this issue further so that use of screening values be adopted in the VAP be revisited during the next Five-Year Rule Review.

Issue #11

The VAP Risk Assessment rule states that risk to a receptor must include the summation of risk across all applicable pathways. For example, the risk to a receptor from direct contact to soils must also be combined with the risk from indoor air, along with any other complete pathways to determine the total risk to a receptor on the property. This fact is commonly overlooked in NFAs submitted to OEPA. It has been suggested that this issue be clarified either in rule language, or within a TDC document.

Recommendation

It is recommended that the following comment under paragraph (B)(2)(b) of the Generic Standards rule be removed:

[Comment: A cumulative adjustment for multiple chemicals is made independently of, and is not additive for, each environmental media and land use activity categories. For example, when more than one chemical of concern is present in soils and the land use category is industrial with construction or excavation activity, the cumulative adjustment for multiple chemicals is not combined for the construction or excavation activity and the industrial land use.]

This comment was included during the last rule revision as a way to prevent the lowering of standards for potable use of drinking water that would affect the protection of clean ground water (aka POGWMUPUS) demonstration. However, this comment has been incorrectly interpreted by some volunteers and CPs, resulting in no summation of risk across complete pathways for receptors. It is recommended that the clean ground water protection provision discussed above be kept in the Phase II rule. However, clarification in the Generic Standards rule is needed to remind volunteers that summation of risk across complete exposure pathways is required similar to the summation of risk language in the Risk Assessment rule.

Revisions to the Phase II and/or Ground Water rule should also clarify that when COCs in ground water meet the potable use ground water values in the Generic Standards rule, then the protection of clean ground water provision of the VAP applies.

Rule	Commenter	Issue	Response
3745-300-01	Martin Smith, Ohio EPA, VAP	Two new definitions that were intended to be in the rule were left out. The definitions are: For paragraph (A): "Complete exposure pathway" is a current or reasonably anticipated exposure pathway determined to be complete after the identification of current and reasonably anticipated property use and receptor populations and as a result of a pathway completeness determination. For paragraph (H): "Free product" means a separate liquid hydrocarbon phase that has a measurable thickness of greater than one one-hundredth of a foot.	Ohio EPA agrees that these rule definitions were intended to be added based on the recommendations of the Multidisciplinary Board. The new definitions noted in this comment will be added.
3745-300-01	Ohio EPA, Division of Drinking and Ground Water	The agency review draft dated May 2007 had a definition of free product in Rule 09. This was struck out in the "Interested Party Review" Word version distributed to staff is and was not included in rule 01. A definition of free product should be included in Rule 01 and should match BUSTR's definition of free product.	Ohio EPA agrees that a definition of free product should be added to the Definitions Rule and will add a definition that matches BUSTR's definition of free product.
3745-300-01	Ohio EPA, Northeast District Office/DERR	Recommend adding the following definition from RAGS Part A: Exposure Route: The way a chemical of concern(s) comes in contact with a receptor (e.g., by ingestion, inhalation, dermal contact).	Definition of exposure route added.
3745-300-01(A) through (L)	Hull and Associates, Inc.	The placement of all definitions used in Chapter 3745-300 into one rule is a good idea and is helpful to volunteers and other users. However, the organization of the Definitions rule by paragraphs (each of which corresponds to the entire chapter or to a subsequent rule) is somewhat confusing and reduces ease of use. The Definitions rule would be most useful as a 'glossary' in which all terms (which, if used in more than one rule should in any event be used consistently across the chapter) are organized alphabetically. The "incorporation by reference" section in paragraph (L) is useful as a stand-alone reference section and should be retained.	Ohio EPA agrees that it will be more user friendly if the definitions are moved to just one paragraph in the Definitions Rule and organized alphabetically. This suggested change will be made. The "incorporation by reference" section of the Definitions Rule will remain as a separate paragraph.
3745-300-	Ohio EPA,	Definition of "activity and use limitations". It is recommended that "ground water extraction	Ohio EPA agrees that this change was agreed to previously and will make the suggested revision.
01(A)(1)	Division of	limitations" be changed to "ground water use restriction". This is the terminology used in most
	Drinking and	documentation associated with an NFA letter. DDAGW made this comment previously.
	Ground Water	Discussions with VAP staff indicate that this change was approved by staff; however, the change
	Ground Water	was not incorporated into the Interested Party Review package.
3745-300-	Martin Smith,	The citations in paragraphs (A)(1) and (A)(6) need to be updated to refer to rule 3745-300-11	Ohio EPA will update the citations in the noted paragraphs to reflect the change in the rule number for the
01(A)(1), (A)(6)	Ohio EPA, VAP	instead of rule 3745-300-15.	Remediation Rule.
3745-300- 01(A)(6)	Ohio EPA, Northeast District Office/DERR	Typo. Rule -15 should be Rule -11	This typographic error will be corrected.
3745-300-	Dan Brown,	The term "areas surrounding the property" should be expanded or broadened. Based on	The term "areas surrounding the property" is used in the definition for "background level" found in the VAP statute.
01(A)(7)	Partners	geologic and other conditions, it may be suitable to have an applicable background sample	The VAP is intentionally using the same wording for the definition of "background level" in its rule as that found in
	Environmental	collected from a site several miles from the VAP Property. "Areas surrounding the property"	the VAP statute. Therefore, to expand this definition to include sites several miles from the property would exceed
	Environmental	seems too restrictive.	the scope of our statutory authority.
3745-300-	Amy Yersavich,	"Certified or Certification" - should this definition include the other activities a CP is authorized to	The emphasis in this definition is on the CP meeting the criteria for certification not on the activities that a CP may
01(A)(9)	Ohio EPA, VAP	conduct (and use his/her CP seal) under the CP rule in addition to NFA issuance? Activities that	do under the VAP. Those activities are detailed in the CP rule (OAC 3745-300-05).
		fall under "rendering a voluntary action opinion" such as USD issuance and a CP decision that an
		NFA cannot be issued for a property.
3745-300-	Ohio EPA,	Recommend adding to the end of the definition, "defined herein." Clarify that the rules for CL's	The term "defined herein" is not necessary to add to a rule language when the term you are referring to is already
01(A)(10)	Northeast	when they perform work for a Voluntary Action.	defined. Voluntary Action is defined at OAC 3745-300-01(A)(56).
	District
	Office/DERR

Rule	Commenter	Issue		Response
3745-300- 01(A)(14)	Hull and Associates, Inc.	The definition should be revised to read, "Cumulative risk' is the	total risk associated with multiple	Ohio EPA agrees that this definition could be written more clearly. The definition has been revised to address this issue, except for the last phrase "when the exposures are reasonably expected to be simultaneous throughout the exposure duration" due to the requirement that incremental risks from all pathways be included in the final risk to receptor.
3745-300- 01(A)(14)	Hull and Associates, Inc.	~~chemicals and/or multiple exposure routes as defined in paragraph (H) of this rule~~ estimate of excess lifetime cancer risk attributable to the exposure of a receptor or receptor population to one or more chemicals of concern in one or more environmental media, or through one or more routes of exposure, when the exposures are reasonably expected to be simultaneous throughout the exposure duration."
3745-300- 01(A)(14)	Ohio EPA, Northeast District Office/DERR	Recommend changing this definition to read ""Cumulative risk is the total carcinogenic risk and non-carcinogenic hazard levels determined for a receptor from multiple chemicals of concern and complete exposure pathways."		The definition for cumulative risk has been changed based on a consideration of all the comments provided by the various commenters.
3745-300- 01(A)(18)	Amy Yersavich, Ohio EPA, VAP	"Enforcement letter"- this definition seems to limit an enforcement letter to just an ITN. Since we contemplate that other program's (e.g. DHWM) enforcement sites can take advantage of the sufficient evidence provisions of rule -02, don't we want to include other instruments such as Findings and Orders?		Enforcement letter is a broad term and includes findings and orders as well as invitations to negotiate (ITN). The phrase "which includes proposed director's final findings and orders" has been added to the definition.
3745-300- 01(A)(21)	Martin Smith, Ohio EPA, VAP	The definition for paragraph (A)(21) "Environmental media" should be modified to read: "Environmental media" are soil, sediment, surface water, and ground water. Environmental media also include naturally occurring transitional zones between receptor populations and soil, sediment, surface water or ground water, such as bedrock, soil gas, and air.		Ohio EPA prefers not to make changes to this definition with this rule revision. The definition has been adequate to date and any future changes that might impact Program in ways that have not been fully researched should be discussed with the VAP Multidisciplinary Board.
3745-300- 01(A)(24)	Ohio EPA, Northeast District Office/DERR	(A)(24) Recommend adding the following to the definition from USEPA Risk Assessment Guidance for Superfund (RAGS Part A, 1989, page 8-2). "Exposure pathway is a mechanism by which a receptor is exposed to chemical(s) of concern. Each exposure pathway includes a source or release from a source, an exposure point and an exposure route. If the exposure point differs from the source, a transport/exposure medium (e.g. air) or media (in cases of intermedia transfer) also is included.		The language in this comment is actually used in the explanation of exposure pathway in rule OAC 3745-300-07 and therefore a separate definition is not needed.
3745-300- 01(A)(26)(a) and (b)	Martin Smith, Ohio EPA, VAP	The citations in paragraphs (A)(26)(a) and (b) (the ground water definition) should refer to paragraph (F)(6) of rule 3745-300-07 not paragraph (D)(7).		Ohio EPA agrees and will make the noted citation corrections.
3745-300- 01(A)(27)	Hull and Associates, Inc.	The definition should be revised to read, "Hazard index' is a numerical value that describes the potential for an adverse non-cancer threshold effect ~~non carcinogenic toxicity~~ to occur in an individual as a result of exposure of a receptor or receptor population to one or more ~~multiple~~ chemicals of concern in one or more environmental media through one or more routes of exposure over a specific time exposure period ~~through an exposure pathway(s)~~. This numerical value is expressed as the unit less sum of the hazard quotient values for each chemical(s) of concern, each environmental medium and for each route of exposure ~~pathway.~~"		Ohio EPA agrees that the suggested revision to the definition of hazard index is clearer and will make the suggested change.
3745-300- 01(A)(31)	Amy Yersavich, Ohio EPA, VAP	"Initial Certification" - same comment as comment for (A)(9)		The emphasis in this definition is on the CP meeting the criteria for certification not on the activities that a CP may do under the VAP. Those activities are detailed in the CP rule (OAC 3745-300-05).
3745-300- 01(A)(33)	Ohio EPA, Northeast District Office/DERR	The definition of a Mobile Laboratory should be less restrictive with the type of data produced. The laboratory rules do not restrict the attempt of a mobile lab to be certified. Additionally, a mobile laboratory may not consist of a "vehicular or trailer" facility, but could be a set up laboratory which moves to a temporary position at a site or property. Suggested changes would be a "non-fixed location" and to remove the limited data generation quality from this definition, or the following language: "Mobile Laboratory" is a non-fixed laboratory that is at a location on or near the property that provides real-time analysis of environmental media for the purposes of site characterization; this includes, but not limited to a vehicular or trailer laboratory.		Ohio EPA agrees that the definition can be clarified and has made appropriate revisions to this definition.

Rule	Commenter	Issue	Response
3745-300-	Ohio EPA,	Inconsistent language between Rule -01 and Rule -13. NFA submitted and obligation of director	The paragraphs noted in these two rules (the Definitions Rule and the NFA Rule) speak to two different
01(A)(34)	Northeast	to review the NFA. Check against Rule 3745-300-13(E)(13). Rule -01 appears to oblige the	requirements under the VAP and therefore the intent is not for them to be consistent. The definition contained in
	District	director to review 1) When the volunteer requests, and 2) When Clean Ohio requires. Definition	paragraph (A)(34) describes specifically those NFAs that are submitted to the director for review and
	Office/DERR	doesn't include a "Notice of Issuance of NFA".	approval/denial of a CNS. This defines the universe of NFAs that can be audited pursuant to the VAP's Audit Rule
			(OAC 3745-300-14). Paragraph (E)(13) of rule 3745-300-13 describes what a volunteer must do if property use
			restrictions are relied upon to meet applicable standards for the property. NFAs which are submitted to the Director
			for a CNS must contain a draft Environmental Covenant. NFAs which are not submitted to the Director for a CNS,
			and are therefore not reviewed by Ohio EPA, require a deed restriction.
3745-300-	Ohio EPA,	Add state surface water rules reference as well as keeping the reference to federal wetland	Ohio EPA agrees and will make this suggested change to the sediment definiton.
01(A)(51)(c)	Northeast	requirements.
	District
	Office/DERR
3745-300-	Martin Smith,	The definition for paragraph (A)(53) "Source area" should be modified to read: "Source area" is	Ohio EPA agrees with this suggestion and will make the noted correction.
01(A)(53)	Ohio EPA, VAP	any affected media containing chemical(s) of concern that is acting, has acted, or has the
01(A)(53)	Ohio EPA, VAP	potential to act as a source of chemical(s) of concern to ~~other~~ environmental media.
3745-300-	Hull and	The definition should be revised to read, "Unrestricted potable use standard' means ground water	Ohio EPA agrees that the suggested revision to the definition of unrestricted potable use standard is clearer and
01(A)(55)	Associates, Inc.	standards based on the assumption that ground water will be used as a source of water for	will make the suggested change.
		drinking, cooking, showering and bathing. Unrestricted potable use standards include generic
		unrestricted potable use standards based on Maximum Contaminant Limits or other established
		regulatory criteria in accordance with rule 3745-300-08 of the Administrative Code, generic risk-
		derived unrestricted potable use standards developed in accordance with rule 3745-300-08 of the
		Administrative Code, or property-specific risk-derived unrestricted potable use standards
		developed in accordance with rule 3745-300-09 of the Administrative Code."
3745-300-01(B)	Ohio EPA, Northeast District Office/DERR	Consider adding a definition to this fee section to define "issuance of a NFA Letter". This has been an issue for the new "PAYGO" process and a definition of a "complete" NFA Letter issuance may help to decrease incomplete NFA Letters on account of the fee.	The confusion regarding when a voluntary site can enter the PAYGO process and when it cannot (i.e. volunteer cannot enter the site into PAYGO after an NFA is issued by a CP for the site but can enter the site any time before the issuance) is better handled in guidance and training. Ohio EPA will prepare additional, clarified PAYGO guidance and educate CPs about this issue during CP Coffees and other training opportunities.
3745-300-	Ohio EPA,	These two definitions apply to more than certified laboratory work and have much broader	The definitions for "Standard Operating Procedures" and "Technology" are written specifically for the Certified
01(C)(15)&(18)	Northeast	definitions. These definitions: "Standard Operating Procedures" (15) and "Technology" (18)	Laboratory Rule (3745-300-04) and speak to the requirements a laboratory must meet to obtain and maintain
	District	should be more general and placed outside of the limited realm of the laboratory rule. Standard	certification under the VAP. Therefore, keeping the definitions laboratory-specific is necessary to avoid exceeding
	Office/DERR	operation procedures also can apply to field sampling and analysis for which no certification	our certification authority under the statue.
		occurs. These SOPs would be identified in the QA requirements for this work under the Phase II
		rule. Additionally, technology would also fall into this category for field screening equipment,
		such as PIDs and other meters.
3745-300-	Ohio EPA,	The definition of "Analyte" is too limiting. Any constituent which could be analyzed should be	The definition of analyte in the rules is specific to the voluntary action program and describes only those analytes
01(C)(3)	Northeast	considered in this term since additional parameters for ground water and attenuation would be	for which the program has authority to provide laboratory certification. The voluntary action program only has
	District	necessary and are not hazardous substances or petroleum. An analyte is any substance which	authority under statute to approve and oversee laboratory certification of hazardous substances and petroleum.
	Office/DERR	could be analyzed by "technology" for the purpose of determining a quantification of its
		concentration. Suspended solids, dissolved solids, iron, nitrogen, and other compounds may be
		necessary to analyze for various issues and should be considered in this definition.
3745-300-	Ohio EPA,	Incorporate the comment into the definition	Ohio EPA agrees that the comment should be rule language and will make the suggested change to the definition
01(C)(9)	Northeast		of parameter group.
	District
	Office/DERR

Rule	Commenter	Issue	Response
3745-300-	Dan Brown,	The definition of "course" may be too narrow. There are lots of aspects of Brownfield	The intent of the continuing education portion of the rule is to ensure that certified professionals have and maintain
01(D)(3)	Partners	development that should count toward PDHU's but are often unapproved upon submission. The	the necessary technical skills to complete a voluntary action. Although Ohio EPA agrees that the VAP rules are
	Environmental	understanding of the VAP rules is inherently tied to real estate redevelopment. I think it would be	inherently tied to real estate redevelopment, our VAP rules require specific technical knowledge related to the
		helpful to include the term "or Brownfield redevelopment" at the end of the definition, after the	assessment and cleanup of contaminated sites, not real estate law, policy or procedures.
		word "petroleum".
3745-300-	Dan Brown,	Insert the word "immediate" after the first use of the word "significant" in the first line of the	Ohio EPA agrees and will make this suggested change to the definition of imminent hazard.
01(D)(5)	Partners	definition.
01(D)(5)	Environmental	definition.
3745-300- 01(F)(2)	Amy Yersavich, Ohio EPA, VAP	"Exposure unit" - should the word "location" be replaced with the word "area"?	Ohio EPA agrees and will make the suggested change.
3745-300-	Hull and	The definition should be revised to read, "Exposure unit' means a ~~location within~~ geographic area	Ohio EPA agrees that this definition could be written more clearly. The definition has been revised to address this
01(F)(2)	Hull and	throughout which ~~an exposed~~ a receptor or receptor population ~~may~~ is reasonably be assumed to	issue.
		~~move at random and where~~ expected to contact ~~with an~~ one or more environmental ~~medium~~ media during the conduct or normal activities during a period of time representative of the exposure duration ~~is equally likely at all sub locations."~~	issue.
3745-300-	Ohio EPA,	"Exposure Unit" means a contiguous area within which an exposed receptor may reasonably be	Ohio EPA agrees that this definition could be written more clearly. The definition has been revised to address this
01(F)(2)	Northeast	assumed to move at random and where contact with an environmental medium (e.g. soil) is	issue.
	District	equally likely at all areas.
	Office/DERR	equally likely at all areas.
3745-300-	Hull and	The definition may be revised to read, "Incremental sampling' is a sampling technique that is	Ohio EPA agrees that this definition could be written more clearly. The definition has been revised to address this
01(F)(3)	Associates, Inc.	used to determine a representation concentration of a chemical of concern in a defined area	issue.
		(e.g., an exposure unit) of an environmental medium (e.g. surface soil) that is ~~both repeatable~~
		~~and accurate~~ expected to provide a reliable estimate of actual concentrations. In incremental
		sampling a volume of representative material is removed during a single operation of the
		sampling device. Multiple increments are randomly combined to form the sample." This revised
		definition may still need further clarification; perhaps the guidance, Guidance for Obtaining
		representative Laboratory Analytical Subsamples from Particulate Laboratory Samples (U.S.
		EPA, 2003), could be cited in proposed rule 3745-300-07 and be incorporated by reference in
		proposed rule 3745-300.01.
3745-300-	Ohio EPA,	"Multi-Increment Sampling" is a technique that is used to collect a soil sample within a designated	Ohio EPA agrees that this definition could be written more clearly. The definition has been revised to address this
01(F)(3)	Northeast	area to overcome spatial and compositional heterogeneity and obtain a more reliable and	issue.
	District	reproducible estimate of the mean concentration. Numerous aliquots of soil are randomly
	Office/DERR	sampled within the same designated area and soil horizon. The aliquots of soil are combined to
	Office/DERR	comprise the multi-increment sample.
3745-300-	Hull and	The definition should be revised to read, '"Ninety-five percent upper confidence limit of the	Ohio EPA does not agree because Rule 3745-300-07 already specifies that the 95 percent UCL is for the mean.
01(F)(6)	Associates, Inc.	arithmetic mean' or 'ninety-five percent UCL' is the upper limit of an interval ~~within a frequency~~
		~~distribution curve~~ added to the mean, within which the observed mean of a data set will is
		expected to occur ninety-five percent of the time.
3745-300-	Ohio EPA,	Please add the words "of the mean" after UCL.	Rule 3745-300-07 already specifies that the 95 percent UCL is for the mean and therefore a change to the
01(F)(6)	Northeast		definition is not necessary.
	District
	Office/DERR
3745-300-01(G)	Martin Smith, Ohio EPA, VAP	The two definitions included under paragraph (G) are also used in other rules such as rule -07. I think this means that they need to be moved to paragraph (A). Since there are no other definitions specific to rule 3745-300-08, I think that this section goes away.	Ohio EPA agrees that it will be more user friendly if the definitions are moved to just one paragraph in the Definitions Rule and organized alphabetically and will make Hull's suggested change. (See comment from Hull and Associates, Inc.)
3745-300-01(G)	Ohio EPA, Northeast District Office/DERR	Compare with Rule -08. GNS and GDCS confusing regarding the need for summation across media and regarding the accumulation of risk for a receptor.	The issue of summation of risk across media is explained in detail in the rules and therefore, a change to the definition is not necessary.

Associates, Inc.

Rule	Commenter	Issue	Response
3745-300-01(H)	Ohio EPA, Northeast District Office/DERR	Add "biological tissue sample." A volunteer may collect fish or other tissue samples.	It is inappropriate to add a definition for a term if the term is not used in the rule chapter. The term "biological tissue sample" is not used in any rule under OAC Chapter 3745-300.
3745-300-	Hull and	The definition should be revised to read, "Exposure point concentration' means the mass of a	Ohio EPA agrees that this definition could be written more clearly. The definition has been revised to address this
01(H)(5)	Associates, Inc.	chemical of concern per unit quantity of medium (e.g., mass, volume) which is available for	issue.
		~~uptake~~ intake by a receptor. ~~For the purposes of this rule, exposure point concentrations are~~
		~~expressed in~~ (e.g., units of mg/kg for the soil medium, units of ug/L for the groundwater medium
		and units of mg/m3 for the air medium)."
3745-300-	Martin Smith,	The definition for paragraph (H)(5) "Exposure point concentration" states that ".For the	Ohio EPA agrees with this suggestion will make changes to the exposure point concentration definition.
01(H)(5)	Ohio EPA, VAP	purposes of this rule, exposure point concentrations are expressed in units of mg/kg for soil
		medium, units of g/L for ground water medium and units of mg/m3 for air medium." I am not
		sure why we include units for air medium when we do not have standards for air. We may want
		to delete this part of the definition.
3745-300-	Hull and	The definition should be revised to read, "Reference dose' means a value representative of a	Ohio EPA agrees that the suggested revision to the definition of reference dose is clearer and will make the
01(H)(8)	Associates, Inc.	daily exposure level for the human population, including sensitive subpopulations, that is not	suggested change.
		likely to cause an adverse noncancer health effects during a ~~lifetime~~ specified period of time
		(e.g., an acute, short-term, subchronic or chronic exposure period)."
3745-300-	Ohio EPA,	Please consider adding the bold language. "Risk mitigation measures" are the health and safety	This additional language implies that a recalculation of the risk goal is always done. However, this is not the case
01(J)(7)	Northeast	precautions and other such remedial activities that mitigate to target risk goals or eliminate..	in the VAP rules and therefore this language should not be added.
	District
	Office/DERR
3745-300-	Ohio EPA,	"Split Sample" is a material or media that consists of two individual samples collected at the same	Ohio EPA agrees that this definition could be written more clearly. The definition has been revised to address this
01(K)(8)	Northeast	time and location and that are analyzed independently; with one sample analyzed at a different	issue.
	District	laboratory for the purpose of auditing the quality of the data that is used for determining
	Office/DERR	compliance with the applicable standards, this Chapter or Chapter 3746 of the revised code.
3745-300-	Ohio EPA,	Reference updates that should be revised in this paragraph. a. The 1996 Soil Screening	Ohio EPA will make the suggested changes to update the "1996 Soil Screening Guidance" in rule 3745-300-
01(L)(2)	Northeast	Guidance has been updated. So add to the list: U.S. EPA 2002. Supplemental Guidance for	01(L)(2). The references noted in (b) through (d) of this comment are not referenced anywhere in OAC Chapter
	District	Developing Soil Screening Levels for Superfund Sites. OSWER 9355.4-24 (December 2002). b.	3745-300 and therefore it is not appropriate to add those citations to the Incorporation by Reference section of
	Office/DERR	U.S. EPA has soil screening levels for terrestrial receptors. U.S. EPA Guidance for Developing	3745-300-01.
		EcoSSLs. http://www.epa.gov/ecotox/ecossl/ c. Evaluating the vapor intrusion pathway: U.S.
		EPA 2002. Evaluating vapor intrusion to indoor air pathway from groundwater and soils. EPA530-
		F-02-052. U.S. EPA 2004. User's Guide for Evaluating Subsurface Vapor Intrusion into
		Buildings. d. The child exposure factor handbooks have been updated: U.S. EPA 2002. Child-
		Specific Exposure Factors Handbook (Interim Report) EPA-600-P-00-002B.
3745-300-	Ohio EPA,	Please note the way this section is written it appears to include as an eligibility issue OAC 3745-	There may be eligibility issues if licensed and permitted solid waste facilities have an authorization under 3745-27-
02(B)(5)(a)	Northeast	27-13 sites. Please evaluate if this is what is wanted in this section.	13. However, if a site is not licensed, permitted or considered a solid waste facility, authorizations under 3745-27-
	District		13 would not pose an eligibility problem. Since eligibility can and cannot be an issue when a site has an
	Office/DERR		authorization under 3745-27-13, the language should not be changed. This eligible vs. ineligible issue is actually
	Office/DERR		clarified in VAP guidance (aka TDC) under VA30002.03.002.
3745-300-	Ohio EPA,	Consider adding some clarification that a generator unit can go through the process with the	We do not plan to add clarification to the rule at this time for two reasons: 1) this issue does not arise often; and 2)
02(B)(5)(b)	Northeast	caveat of future closure.	when this issue does arise, a fact specific analysis must be done on a case by case basis to determine eligibility.
	District		This issue will continue to be dealt with on a case by case basis.
	Office/DERR
3745-300-	Ohio EPA,	Consider clarifying that both BUSTR closure and RCRA correction action apply to eligibility	Ohio EPA has decided to provide guidance concerning issues related to BUSTR closure and RCRA corrective
02(B)(6)	Northeast	restrictions.	action and VAP eligibility in the VAP checklist and/or TDCs dealing with VAP eligibility.
	District
	Office/DERR

Rule	Commenter	Issue	Response
3745-300-04 and 05	Ohio EPA, Northeast District Office/DERR	Rules -04 and 05: There should be an identification of a "grace period" for certifications that have been submitted in a timely manner, but that have not been acted upon by the Agency. This would be a good customer service item.	Neither the Certified Laboratory Rule nor the Certified Professional Rule contain any timelines within which a CP or CL is required to respond to missing or deficient information or face denial. Furthermore, the VAP is already required by rule to act in a timely manner to process all complete applications for laboratory and professional certification.
3745-300-	Ohio EPA,	PT not always aqueous. Also may include air.	3745-300-04(C)(2)(c) provides for the Agency to also evaluate the use of "equivalent" PT samples, which is
04(C)(2)(c)	Northeast		inclusive of air.
	District
	Office/DERR
3745-300-	Ohio EPA,	The list should include the requirement for the standard operating procedures to be submitted for	Standard operating procedures are required to be submitted under paragraph (D)(1) of this rule. Paragraph (D)(4)
04(D)(4)	Northeast	performance-based methods. It appears to be missing.	requires that all the requirements of paragraph (D)(1) be met for performance-based methods along with additional
	District		requirements of paragraph (D)(4).
	Office/DERR		requirements of paragraph (D)(4).
3745-300-	Ohio EPA,	Please identify why the certification review does not begin for 60 days or was this a wording error.	In practice, the review of a certified laboratory application begins as soon as the application is complete. Ohio EPA
04(E)(1)	Northeast	Please review and evaluate for a customer service issue.	will make appropriate changes to the rule language in (E)(1) to make it clear that review begins once the
	District		application is complete.
	Office/DERR		application is complete.
3745-300-	Ohio EPA,	Please make sure the description of the product is correct. The understanding is a complete	The language in (E)(1)(c) states that audit deficiencies will be indicated in the audit report not that the audit report
04(E)(1)(c)	Northeast	report would be published, not just a deficiency letter. If this is incorrect, a wording change	is only the audit deficiencies.
	District	should be considered.
	Office/DERR	should be considered.
3745-300-	Ohio EPA,	Suggested insertion after established in "certification fees under" rule 3745-300-03, for	Ohio EPA agrees that adding the suggested language would provide additional clarification to this paragraph and
04(E)(1)(e)	Northeast	clarification.	will make the suggested change.
	District
	Office/DERR
3745-300-	Ohio EPA,	Suggested change to reduce amount of approvals necessary by agency would be to note	Because most of the changes to a CL's Standard Operating Procedures or Quality Assurance Program Plans
04(G)(1)	Northeast	"substantial change or revision". If the change is not something requiring an in-depth review by	required approval by the VAP, Ohio EPA believes adding the word "substantial" would confuse readers rather than
	District	our laboratory coordinator, it may same time and effort by our staff to just have the changes	make the regulation clearer. Minor changes to these documents that do not require approval are normally
	Office/DERR	submitted. This may include change of method designation which does not have an actual	communicated to the CLs via guidance and e-mail by the VAP CL Coordinator.
		change in procedures - 8260E to 8260 F which is minor changes in the methodology text and not
		to actual procedures.
3745-300-	Ohio EPA,	Please include a statement for disclosure of why the laboratory could not meet the applicable	The intent of this rule addition is to ensure communication between CP and CL. Specifying a single reason when
04(H)(8)	Northeast	standard for the specific constituent. It could be that the analyte was masked by another	there could many reasons is too prescriptive for rule and may actually discourage necessary and important
	District	elevated compound.	communication.
	Office/DERR	elevated compound.	communication.
3745-300-	Ohio EPA,	The inserted sentence should have a catch-all statement at the end in case another issue is	Ohio EPA agrees that adding the suggested language would provide additional clarification to this paragraph and
04(J)(1)	Northeast	noted with the ownership or other change to the laboratory. Suggested change add " .or other	will make the suggested change.
	District	functional issue which could impact laboratory operations under the VAP certification."
	Office/DERR
3745-300-04(M)	Test America Laboratory	A number of regulatory agencies and programs are implementing record retention policies which allow uniformity for laboratory procedures. Recommend modification of rule language to allow disposal of records after 5 years with notification but after 10 years without notification. "A laboratory must maintain all documents and data prepared or acquired in connection with a voluntary action for a period of at least five years after the date that the laboratory's analyses were submitted to a certified professional or volunteer. After five years, if a laboratory does not intend to retain such documents and data, the laboratory must notify the agency by certified mail of such intent and provide the agency the opportunity to obtain the documents and data. The documents and data must be retained until the notice described above is provided to the agency, and the agency notifies the laboratory in writing that the agency will or will not obtain the documents and data. Notification of the agency	The Director has the option to audit a CP/volunteer for ten years after the NFA Letter has been issued. Therefore it is necessary for the CL to retain their records commensurate with the ten year time period, should such an investigation be necessary. In addition, the ten year records retention requirement.

Rule	Commenter	Issue	Response
		pursuant to this paragraph is not required as long as a laboratory continues to retain all documents and data. After ten years the laboratory may dispose of the data without notification to the agency."
3745-300-	Earl Rothfuss,	Please take another look at OAC 3745-300-05(C)(7). I think a phrase should be added so it	Ohio EPA agrees with this comment. Language will be added to this section of the rule to clarify the CP Initial
05(C)(7)	Michael Baker	reads as you and Amy Yersavich indicated it should when we talked last Tuesday. I suggest the	Training Class attendance requirement.
	Corp.	following: If a certified professional has not submitted a no further action letter to the direct in
		support of a request for a covenant not to sue OR ATTENDED AND COMPLETED THE
		CERTIFICATION TRAINING SPECIFIED (B)(2) (d) OF THIS RULE in the last four calendar
		years, then ... (proposed additional language in capitals).
3745-300-05(F)	Earl Rothfuss, Michael Baker Corp.	Addition of language to OAC 3745-300-05(F) that makes the certified professional' s obligation to protect the health and safety of the public his/her paramount responsibility. The NSPE Canon of Ethics has some good language you might find helpful in this area of standards of conduct and professional responsibility.	We will retain this suggestion for future rule reviews as it would be a good idea to review the NSPE Cannon of Ethics as part of the Multidisciplinary Board and Workgroup research and review process that takes place during each five-year rule review.
3745-300-06(C)	Ohio EPA, Northeast District Office/DERR	In the last line replace " this rule" with "OAC 3745-300-01"	Ohio EPA disagrees with this suggestion. The rule that must be followed under this Phase I supplement requirement is rule 3745-300-06 not the definitions rule. Hence, "this rule" is appropriately used in this rule paragraph.
3745-300-	Ohio EPA,	Did ASTM Standard E1527 revise the section location from 7.2.2? This reference may not have	The standard was revised to reference the correct citation which is 8.2.2.
06(C)(2)(e)	Northeast	been updated since AAI and ASTM updated last.
	District
	Office/DERR
3745-300- 06(C)(3)	Ohio EPA, Northeast District Office/DERR	Typo. Should there be a comma or add the word "and" after the underlined section.	Ohio EPA will correct this typographic error.
3745-300-	Ohio EPA,	This section should insert a sentence to provide notice to all readers that this would include	Ohio EPA has addressed this in the form of guidance in the NFA Form. A note in the form instructs readers to
06(C)(4)	Northeast	BUSTR and Hazardous Waste clean ups and closures which have occurred at a property. As	include any releases of Haz. Sub. And petroleum as an identified area.
	District	new CPs and Volunteers join VAP, there still seems to be confusion as to whether these areas
	Office/DERR	still constitute an identified area.
3745-300-07	Earl Rothfuss, Michael Baker Corp.	Consider issuing Eric Sainey's comparison of the current and proposed outlines of OAC 3745- 300-07 as guidance. It would be even better if they could be combined into one document. I suggest the outline of the proposed version with a column showing the current section numbers.	A comparison of the current and the revised rules would be a good tool for CPs and other interested parties. Although this is not a document that can be filed as a rule under the Joint Committee on Rule Review, it is something the VAP could prepare after the rule revisions are final to aid in implementing the revisions.
3745-300-07	Hull and Associates, Inc.	It appears that the intent of this paragraph is to permit the use of non-certified mobile lab data only if it is confirmed in accordance with the procedures for data collected form previous Phase II investigations. It is not clear whether the non-certified mobile lab data collected as part of the currently-conducted Phase II investigation may be used as screening data without further data analysis (i.e., confirmation)?	Ohio EPA agrees that the rule language needs to be clarified. Revisions have been made. Also, a TDC regarding use of mobile lab data will be developed. Mobile lab data from a currently-conducted Phase II can always be used as screening data without further data analysis (i.e., confirmation).
3745-300-07	John Garvey, Partners Environmental	MI Sampling Issue: Utilizing this approach alone could mask localized "hot spots" that might otherwise be identified and addressed. This is inconsistent with the VAP staff's desire up to now not to let CPs "dilute" data sets with samples from clean areas of the site, even if the samples are from the exposure unit. To use this approach alone would require significant scrutiny to be sure the potential exposure is truly random.	The VAP agrees that an average concentration will be obtained for an exposure unit. The VAP will provide guidance to instruct CPs on how to obtain a truly random sample. Additionally, detailed training will be offered (i.e., short courses by Envirostat can be held, provided enough CPs are interested in attending such a course) that will provide additional instruction. Finally, this sampling technique is only one of three options that a CP can use in VAP to obtain a representative soil concentration; therefore, if a CP feels uncomfortable using this technique then other options may be used.
3745-300-07(B)	Hull and Associates, Inc.	The comment following Paragraph (B) should be incorporated into the this paragraph.	Ohio EPA agrees that the comment should actually be rule language and will make the suggested change.
3745-300-07(B)	Martin Smith, Ohio EPA, VAP	The citation in paragraph (B) needs to be updated to refer to rule 3745-300-11 instead of rule 3745-300-15.	Ohio EPA will make the noted rule citation correction.

Rule	Commenter	Issue	Response
3745-300-	Ohio EPA,	This section should insert a sentence to provide notice to all readers that this would include	Ohio EPA has addressed this in the form of guidance in the NFA Form. A note in the form instructs readers to
07(C)(3)	Northeast	BUSTR and Hazardous Waste clean ups and closures which have occurred at a property. As	include any releases of Haz. Sub. And petroleum as an identified area.
	District	new CPs and Volunteers join VAP, there still seems to be confusion as to whether these areas
	Office/DERR	still constitute an identified area.
3745-300-	Hull and	The sentence should be revised to read "Data from the certified laboratory is are adequate for	Ohio EPA agrees. This typographic error will be corrected.
07(D)(2)	Associates, Inc.	use."	Ohio EPA agrees. This typographic error will be corrected.
3745-300- 07(CD)(4)	Cox-Colvin and Associates, Inc.	Paragraph (D)(4) states that the volunteer must: "Develop the analytical approach to identify contaminants of concern, complete exposure pathways, and current and reasonably anticipated future receptors...". The use of the phrase "Develop the analytical approach..." is somewhat confusing. One could read this as a need for the volunteer to develop some sore of mathematical calculation to identify reasonably anticipated future users. Can this language be clarified?	Ohio EPA will clarify. Language will be changed to "Develop an approach to identify.". Ohio EPA will remove the word "analytical" to avoid confusion.
3745-300-	Hull and	The comment below Paragraph (D)(4) should be incorporated into this paragraph.	Ohio EPA believes it is more appropriate to leave the language as a comment because it provides information
07(D)(4)	Associates, Inc.		rather than being a directive.
3745-300-	Cox-Colvin and	Paragraph (E)(1) states that the volunteer must ensure that: "The sample procedures employed	We are planning to develop a TDC document which will discuss QA/QC issues and provide examples. Ohio EPA
07(E)(1)	Associates, Inc.	at the property are consistent with the sample quality requirements of the certified laboratory,	plans to finalize and publish this TDC at the same time the VAP rule revisions become final.
		and...". We assume this to mean that, for instance, the sample volumes and preservatives are
		consistent to meet the laboratory's procedures. It may be useful to provide an example or two for
		this paragraph, even though you have been avoiding the use of comments.
3745-300-	Ohio EPA,	Consider removing the interim standard section. Why continue to hold onto the language in this	Ohio EPA agrees to remove the language in this paragraph that refers to interim standards for Phase I Property
07(E)(1)(b)	Northeast	section referencing interim standards. Interim standards are not in effect. This whole section of	Assessments. Interim standards have not been in effect since December of 1996 and Ohio EPA has not seen an
	District	the rule is in regard to updating the Phase I if more than 180 days has elapsed. Interim rules	updated interim standard Phase I in at least ten years. Keeping the language would only serve to confuse readers
	Office/DERR	were only in effect prior to the 1996 VAP final rules being in place.	who are not familiar with the interim standards in effect in the VAP from September, 1994 - December, 1996.
3745-300- 07(E)(1)(c)(ii and iii)	Ohio EPA, Northeast District Office/DERR	The statement appears to request a revised Phase I Assessment to amend an existing Phase I. However, what if the document is relied upon, but not used as the VAP Phase I document. It seems duplicative to have two VAP Phase I documents or require all prior phase I documents to be revised to be relied upon. This needs to be clarified in this section pursuant to its meaning. If they are not the VAP Phase I Assessment, would the agency require the volunteer to revise this document to meet the VAP rules or just let them use the appropriate data from this document as long as it complies with the DQOs of the project?	Ohio EPA feels that the rule is written flexibly enough to allow a prior Phase I Environmental Assessment and update the information in an addendum to make it VAP compliant. However, a slight change to the rule language was made to clarify the language.
3745-300-	Hull and	It is not clear why the distinction has been made here between a prior "Phase I" or "Phase II"	The VAP wanted to make a distinction between a VAP compliant and non-VAP compliant (e.g., ASTM) Phase I.
07(E)(1)(c),	Associates, Inc.	Environmental Site Assessment" and a prior "Phase I" or "Phase II" "Property Assessment". Is	The term Phase I Property Assessment is meant to be a term specific to a VAP compliant Phase I, while Phase I
(E)(1)(d)		this change intended to exclude previous VAP Phase I or Phase II Property Assessments, but not	Environmental Site Assessment is meant to be a term specific to a non-VAP compliant Phase I.
		previously-conducted ASTM Phase I or Phase II assessments? Or, should both types of
		assessments be included? This language is a change from the 2002 rule and usage of the terms
		is not consistent throughout the proposed rule.

Rule	Commenter	Issue	Response
3745-300-	Ohio EPA,	There is still a belief that mobile laboratories could be certified in the future of VAP due to rapidly	Pursuant to the VAP Multidisciplinary Board's recommendation, Ohio EPA will be convening an interdisciplinary
07(E)(1)(d)	Northeast	advancing technology. The VAP should be more open to this possibility and leave the rules	mobile laboratory workgroup after the rule revisions become final. This workgroup will be researching whether or
	District	vague enough to allow for this potential if necessary. Therefore, a change to this section is	not mobile laboratories are at a point technologically where they can achieve the accuracy and precision
	Office/DERR	recommended to provide more flexibility in the rules. In the second sentence, the wording	requirements necessary to be VAP certified. Because this is a complex and important issue, the VAP wants to
		"generated by mobile laboratories", should be revised to "generated by non - CL laboratories".	make sure that this decision is not made hastily and that every opportunity is given for internal and external Agency
		Additionally, this will catch any fixed laboratory data which is not certified, but relied upon for the	experts to bring their knowledge and research to the table so a fully informed decision can be made. This will take
		Phase II Assessment.	time and until this time, Ohio EPA prefers to leave the rule language as is so that volunteers and CPs are clear on
			the current role of mobile laboratories in the VAP. If a decision is made to certify mobile laboratories in the near
			future, be assured that Ohio EPA will expeditiously make the necessary revisions to the VAP rules, i.e. Ohio EPA
			will not wait until the next five-year rule review for the VAP to make such a revision.
3745-300-	Hull and	The sentence "A volunteer may use data generated from a mobile laboratory as non-certified	Ohio EPA agrees and will correct the grammatical and typographic errors noted.
07(E)(1)(e)	Associates, Inc.	laboratory data to partially meet the requirements of paragraph (E) (1) (d) of this rule, so long as
		the data was generated."should be revised to read "A volunteer may use data generated from
		mobile laboratory as non-certified laboratory data to partially meet the requirements of paragraph
		(E) (1) (d) of this rule, ~~so long as~~ if the data ~~was~~ were generated."
3745-300- 07(E)(1)(e)	Ohio EPA, Northeast District Office/DERR	Add a period at the end of the first paragraph.	Ohio EPA will correct this typographic error.
3745-300-	Ohio EPA,	There is still a belief that mobile laboratories could be certified in the future of VAP due to rapidly	Pursuant to the VAP Multidisciplinary Board's recommendation, Ohio EPA will be convening an interdisciplinary
07(E)(1)(e)	Northeast	advancing technology. The VAP should be more open to this possibility and leave the rules	mobile laboratory workgroup after the rule revisions become final. This workgroup will be researching whether or
	District	vague enough to allow for this potential if necessary. Therefore, a change to this section is	not mobile laboratories are at a point technologically where they can achieve the accuracy and precision
	Office/DERR	recommended to provide more flexibility in the rules. The text change would be to remain silent	requirements necessary to be VAP certified. Because this is a complex and important issue, the VAP wants to
		on the potential that a laboratory could or could not be certified, but provide a generic statement	make sure that this decision is not made hastily and that every opportunity is given for internal and external Agency
		that at a minimum data relied on from this venue should meet fixed laboratory quality.	experts to bring their knowledge and research to the table so a fully informed decision can be made. This will take
			time and until this time, Ohio EPA prefers to leave the rule language as is so that volunteers and CPs are clear on
			the current role of mobile laboratories in the VAP. If a decision is made to certify mobile laboratories in the near
			future, be assured that Ohio EPA will expeditiously make the necessary revisions to the VAP rules, i.e. Ohio EPA
			will not wait until the next five-year rule review for the VAP to make such a revision.
3745-300-	Ohio EPA,	a. "(e) Mobile laboratory data: A volunteer may use data generated from a mobile laboratory to	Pursuant to the VAP Multidisciplinary Board's recommendation, Ohio EPA will be convening an interdisciplinary
07(E)(1)(e)	Northeast	meet the requirements of this rule, so long as the data was generated using methods and	mobile laboratory workgroup after the rule revisions become final. This workgroup will be researching whether or
	District	instrumentation recognized, endorsed, or published by a U.S.EPA or Ohio EPA for the	not mobile laboratories are at a point technologically where they can achieve the accuracy and precision
	Office/DERR	quantitative analysis of environmental media. These methods and instrumentation specifications	requirements necessary to be VAP certified. Because this is a complex and important issue, the VAP wants to
		must be similar to those used by a fixed-based laboratory that provides quantitative analysis of	make sure that this decision is not made hastily and that every opportunity is given for internal and external Agency
		environmental data." "A mobile laboratory generating quantitative data to be used as non-	experts to bring their knowledge and research to the table so a fully informed decision can be made. This will take
		certified laboratory data..." Remain silent on the CL generation of data at this point. This could	time and until this time, Ohio EPA prefers to leave the rule language as is so that volunteers and CPs are clear on
		be a future section if necessary and the wording in this section would not need future changes to	the current role of mobile laboratories in the VAP. If a decision is made to certify mobile laboratories in the near
		address any mobile laboratories which request certification.	future, be assured that Ohio EPA will expeditiously make the necessary revisions to the VAP rules, i.e. Ohio EPA
			will not wait until the next five-year rule review for the VAP to make such a revision.
3745-300-	Ohio EPA,	DDAGW recommends that this rule be subdivided into ground water and surface water entries as	Ohio EPA will keep the language as written. The purpose of this rule section is to provide a general list of property-
07(E)(2)(g)	Division of	follows: (g) The occurrence and flow direction and gradient of surface water or ground water.	specific and regional characteristics that a CP may evaluate as he or she deems relevant. The inclusion of DSW
	Drinking and	(Note: occurrence of ground water is covered in paragraph (c) of this rule). (#) The occurrence,	designations and other surface water specifics are too detailed for this section.
	Ground Water	flow direction, and any special designations of surface water bodies. Note: Special designations
		would include habitat type (e.g., cold water, warm water). It is recommended that Division of
		Surface Water be consulted for specific rule language.

Rule	Commenter	Issue	Response
3745-300-	Cox-Colvin and	Paragraph (E)(3)(a) states that the field QA/QC procedures must include: "Review of the	Ohio EPA does not agree. Paragraph (D)(1) is a general statement but paragraph (D)(3)(a) is more specific.
07(E)(3)(a)	Associates, Inc.	laboratory's quality assurance program plan and standard operating procedures for consistency	Therefore, (D)(3)(a) will remain as is.
		with field QA/QC procedures..." I think this statement is similar enough to Paragraph (E)(1) that it
		could be eliminated.
3745-300-	Hull and	It is not clear whether the volunteer would be expected to compare the analytical result to a	The changes suggested for this paragraph are not appropriate because this section of the rule is directing the
07(E)(3)(d)	Associates, Inc.	standard for aluminum (as reported by the laboratory) or to a standard for aluminum sulfate (for	volunteer to identify COCs only. See paragraph (E)(3) of the revised rule. The development of a standard for
		which toxicity criteria are not available). In the event that aluminum sulfate were a COC at a	aluminum sulfate is addressed by rule language in OAC 3745-300-09, which discusses the development standards
		Property, the comment should clarify that the volunteer retains the option of determining which	by a property-specific risk assessment. The second suggestion in the comment asks to clarify that the volunteer
		proportion of the total aluminum concentration, as reported by the certified laboratory, is a	retains the option to determine which portion of the total aluminum is a constituent of the compound aluminum
		constituent of the compound aluminum sulfate.	sulfate. This issue is already addressed by the background section of the rule. As always, the volunteer has the
			option to either meet the risk-based standard or to use a background standard. For these reasons, no changes will
			be made.
3745-300-	Ohio EPA,	This paragraph seems awkward and is unclear on the intent. The second sentence denotes	Pursuant to the VAP Multidisciplinary Board's recommendation, Ohio EPA will be convening an interdisciplinary
07(E)(3)(d)	Northeast	"each" constituent which may be more than is necessary. Many chemicals have a surrogate or	mobile laboratory workgroup after the rule revisions become final. This workgroup will be researching whether or
	District	set of constituents which provide a measure of the hazardous substance which does not have a	not mobile laboratories are at a point technologically where they can achieve the accuracy and precision
	Office/DERR	methodology. A suggested wording change would be: "The volunteer must obtain certified data	requirements necessary to be VAP certified. Because this is a complex and important issue, the VAP wants to
		for a representative constituent or set of constituents, which can be demonstrated to be	make sure that this decision is not made hastily and that every opportunity is given for internal and external Agency
		representative of the hazardous substance which has no method or technology available, per	experts to bring their knowledge and research to the table so a fully informed decision can be made. This will take
		paragraph (D)(2) of this rule, ..".	time and until this time, Ohio EPA prefers to leave the rule language as is so that volunteers and CPs are clear on
			the current role of mobile laboratories in the VAP. If a decision is made to certify mobile laboratories in the near
			future, be assured that Ohio EPA will expeditiously make the necessary revisions to the VAP rules, i.e. Ohio EPA
			will not wait until the next five-year rule review for the VAP to make such a revision.
3745-300-	Ohio EPA,	This paragraph should end with the request to include supporting documentation on the revision	Ohio EPA believes this change is not necessary because the suggested modification relates to a reporting
07(E)(4)(b)	Northeast	of IAs under the Phase II Assessment to ensure the reviewer understands how the analysis was	requirement which is addressed in -07(J)(6). Additionally, this issue is addressed in guidance. Item 4b, Section (F)
	District	completed to alter an identified area.	of the NFA form requires the Volunteer to provide documentation regarding the alteration of identified areas.
	Office/DERR	completed to alter an identified area.
3745-300- 07(F)(1)	Hull and Associates, Inc.	The language in Paragraph (D)(2)(d) of the current rule should be included as paragraph (F)(1)(d) of the proposed rule. This subparagraph should read, "If no complete exposure pathway to an important ecological receptor is identified, or if an important ecological receptor was not	Ohio EPA does not agree. The pathway assessment requirement in the rule already evaluates this (see paragraph (F)(1)(b)) and the rules do not specifically eliminate any pathway. Therefore, paragraph (D)(2)(d) of the current rule is considered redundant and was removed as part of these rule revisions.
		identified at the Property or in the vicinity of the Property, then further evaluation of ecological
		receptors, including a comparison to standards based on an ecological endpoint, is not required."
3745-300-	Ohio EPA,	A suggested change would be to add a (d) to this section to address potential pathway issues	Ohio EPA disagrees with this comment. See Hull and Associates' -07 (F)(1) comment and the OEPA response
07(F)(1) and	Northeast	using an interim remedy or risk mitigation measures. The paragraph would address if a pathway	earlier in this document. This pathway, and the suggested language, are already encompassed in paragraph
(I)(4):	District	is complete only during the current action and the volunteer is contemplating an interim measure	(F)(1)(b).
(I)(4):	Office/DERR	or RMM; then Rule 11 should be followed.	(F)(1)(b).
3745-300-	Cox-Colvin and	The last sentence of Paragraph (F)(2) states that "The review and evaluation must address and	The language in this paragraph is written to be broad. It is the intent of the VAP to allow the CP the flexibility to
07(F)(2)	Associates, Inc.	include, as necessary, the following:" and then list a number of items. However, some of the	evaluate or address property-specific and regional physical characteristics as he or she deems necessary based
		items include language such as "including, but not limited to", or more restrictive language such	on the specifics of the site (i.e., use of best professional judgment).
		as "determination of". This leads to the somewhat confusing instructions of "as necessary,
		including, but not limited to", etc. You may want to clean up some of this language. For instance,
		as per paragraph (F)(2)(b) if the volunteer believes it may be necessary to evaluate the property-
		specific physical characteristics of bedrock must he/she include soil pH?

Rule	Commenter	Issue	Response
3745-300-	Hull and	The paragraph should be revised as follows: "If a groundwater zone is determined to meet	Ohio EPA agrees. This typographic error will be corrected.
07(F)(2)	Associates, Inc.	unrestricted potable use standards, the provisions contained in paragraph (F)((3) of this rule and
		paragraph (D) of rule 3745-300-10 of the Administrative Code apply to ground water zones
		underlying the property. (Note: Delete extra parenthesis in rule citation.)
3745-300-	Martin Smith,	The rule language in paragraph (F)(2) would read better if second sentence were to say "If a	Ohio EPA agrees that the suggested changes improve the clarity of the rule and will make the noted revisions.
07(F)(2)	Ohio EPA, VAP	ground water zone is determined to meet unrestricted potable use standards, the provisions
		contained in paragraph (F)((3) of this rule and paragraph (D) of rule 3745-300-10 of the
		Administrative Code apply to the ground water zones underlying the property."
3745-300- 07(F)(2)	Ohio EPA, Northeast District Office/DERR	Typo. Remove the extra parentheses between (F) and (3).	Ohio EPA will correct this typographic error.
3745-300-	Martin Smith,	The rule language in paragraph (F)(2)(a) would read better if first sentence were to say "Sample	Ohio EPA agrees that the suggested changes improve the clarity of the rule and will make the noted revisions.
07(F)(2)(a)	Ohio EPA, VAP	the ground water within the zones to determined whether the ground water in that zone meets or
07(F)(2)(a)	Ohio EPA, VAP	exceeds unrestricted potable use standards."
3745-300- 07(F)(2)(a)(iv)	Hull and Associates, Inc.	It is not clear how this newly-added provision to the determination of whether the provisions for POGWMUPUS apply to a ground water zone at a Property, contributes to the purpose or the effectiveness of the POGWMUPUS provisions. The POGWMUPUS determination is a complex procedure that includes procedures to address temporal variability in the groundwater concentrations and variation in analytical results between sampling events. Additional procedures to perform "multiple chemical adjustments" based on detected groundwater concentrations at each sampling event may now serve to change the RDUPUS value(s) between sample events. Variability in groundwater conditions will thus need to be evaluated vis a vis a moving target (i.e., an RDUPUS value that is subject to change based upon the concurrently sampled concentrations of other COCs in groundwater). Once it is determined that the provisions for POGWMUPUS apply to a ground water zone, the provisions apply irrespective of the actual groundwater use and the actual exposure point concentrations. Thus, a multiple chemical adjustment is unnecessary.	Ohio EPA does not agree. This new language does not change how a volunteer determines whether the provisions for POGWMUPUS apply to ground water, nor does this new paragraph change how this has been implemented in the past. It was added to clarify that multiple chemical adjustments have to consider the ground water concentrations only. In other words, other media do not factor into the determination.
3745-300- 07(F)(2)(a)(iv)	Martin Smith, Ohio EPA, VAP	There is a parentheses missing in the rule citation in paragraph (F)(2)(a)(iv). It is in the first sentence first rule citation for paragraph (D)(2)(c) of rule 3745-300-08.	Ohio EPA will correct this typographical error.
3745-300- 07(F)(2)(a)(iv)	Ohio EPA, Northeast District Office/DERR	Typo. 2nd line (D)(2)(c) and on the 5th line Table V . We also recommend clarifying which demonstration is being discussed. "When making a demonstration, using Rule -08, unrestrictive potable use standards must not..."	Ohio EPA will correct this typographic error.
3745-300-	Ohio EPA,	Consider adding the language clarifying that the justification must be documented in the Phase II	Ohio EPA does not agree that clarifying language needs to be added. The Phase II reporting requirements under
07(F)(2)(b)	Northeast	report or consider if the intent was to just demonstrate.	3745-300-07(J) already address this.
	District
	Office/DERR
3745-300- 07(F)(2)(b)(iv)	Martin Smith, Ohio EPA, VAP	The rule language in paragraph (F)(2)(b)(iv) would read better if it were to say "The separation distance between the source or source area and the ground water zone, or the separation distance between ground water zones."	Ohio EPA agrees that the suggested changes improve the clarity of the rule and will make the noted revisions.
3745-300- 07(F)(3)(a)(i)	Hull and Associates, Inc.	The comment following this subparagraph in the current rule [(G)(4)(a)(i)], which provided reference to the generic leach-based soil values, has been stricken from the proposed rule. Retaining a reference to the updated leach-based screening values in the proposed rule, would facilitate ease of use by Volunteers.	Ohio EPA does not agree. Adding a reference for the leach-based soil values would impact the ability to use updates to the leach-based values. If the reference is added, each time the leach-based values are updated, Ohio EPA would have to go through a complete revision of OAC 3745-300-07 to incorporate those changes which would take several months at the least. The intent is to maintain flexibility in how the values are calculated to assist CPs and volunteers.
3745-300-	Martin Smith,	There is an incorrect rule citation in paragraph (F)(4)(a). The citation should refer to paragraph	Ohio EPA will correct the noted citation and typographic errors.
07(F)(4)(a)	Ohio EPA, VAP	(A)(1)(a) of rule 3745-300-08 instead of paragraph (B)(1)(a) of rule 3745-300-08. Also, the term
07(F)(4)(a)	Ohio EPA, VAP	"direct-contact" in the second sentence needs to be hyphenated.

Rule	Commenter	Issue	Response
3745-300-	Ohio EPA,	Due to the potential error of data, the term "at or below" should be removed and replaced with	Ohio EPA disagrees with this suggested language change. The VAP applicable standards must be met or a
07(F)(4)(e)	Northeast	"below" only to address potential errors. If this is located elsewhere in the rules, it should also be	remedy is conducted if it is exceeded. There is not requirement to be below the applicable standard, only at or
	District	reviewed and changed. Analytical data limits are derived using a standard deviation process and	below the standard.
	Office/DERR	could have inherent error if reflecting the exact level as the limit.	below the standard.
3745-300- 07(F)(4)(f)(ii)(d)	Hull and Associates, Inc.	This language should be revised as follows: "~~The~~ Whether a chemical of concern is not detected in any other sampled environmental medium is related to site operations or disposal practices;"	Ohio EPA does not agree. The rule language in this section comes from U.S. EPA RAGS and Ohio EPA also believes it is the most appropriate way to determine if infrequent detections of a contaminant are not related to actions at the site. Also, other requirements in paragraphs (F)(4)(f)(ii)(a) through (f) of the revised rule cover this issue.
3745-300- 07(F)(4)(f)(iii)	Hull and Associates, Inc.	This language should be revised as follows: "~~The~~ Whether the chemicals of concern ~~are~~ is demonstrated to be a tentatively identified compounds without an indication of historical use on the property or evidence that ~~they~~ it might be a degradation compound or by-products of one or more other chemicals of concern ~~constituents~~ used on at the property."	Ohio EPA agrees to the changes with the following modification. "The chemicals of concern are demonstrated to be tentatively identified compounds without an indication of historical use on the property or evidence that they might be degradation compounds or by-products of one or more other chemicals of concern ~~constituents~~ used on at the property."
3745-300- 07(F)(4)(f)(iv)	Martin Smith, Ohio EPA, VAP	Paragraph (F)(4)(f)(iv) - This paragraph is one of a number of conditions when a volunteer does not have to determine applicable standards for COCs. It only mentions using appropriate quality assurance and quality control data to determine that a COC is the results of laboratory contamination. We might consider expanding this to include QA/QC data to determine that a COC is the result of field or equipment contamination not associated with the laboratory.	Ohio EPA agrees with the suggestion. Modifications to the rule language have been made to address this issue.
3745-300-	Martin Smith,	Paragraph (F)(5)(b) cites paragraphs (F) and (G) of rule 3745-300-08 but paragraph (F) of rule	Ohio EPA agrees that the suggested language change more accurately reflects the intent of the rule paragraph
07(F)(5)(b)	Ohio EPA, VAP	3745-300-08 is for surface water. Since paragraph (F)(5)(b) is specific to sediment, this doesn't	and will make the change along with the citation corrections.
		seem correct. We should probably cite paragraphs (G) and (H) of rule 3745-300-08 because
		these are the paragraphs specific to sediment. Also, since paragraphs (G) and (H) of rule 3745-
		300-08 include more than ecotoxicologically based-benchmarks (i.e., standards for human health
		and SRVs), the first sentence should be modified to read: "To determine the concentrations of the
		chemicals of concern in sediments for the purposes of comparing the concentrations to the
		~~ecotoxicologically based benchmarks pursuant to~~ applicable standards identified in paragraphs
		~~(F) and~~ (G) and (H) of rule 3745-300-08." Also, the last citation in this paragraph is incorrect it
		should be paragraph (F)(5)(c) instead of (F)(6)(c).
3745-300- 07(F)(5)(c)(i)	Martin Smith, Ohio EPA, VAP	Paragraph (F)(5)(c)(i) - the word per cent should be one word. (this occurs twice in the paragraph)	Ohio EPA will correct this typographical error.
3745-300- 07(F)(5)(c)(i)	Ohio EPA, Northeast District Office/DERR	UCL "of the mean" Reference titles also may have changed. Please confirm.	The corrections and changes noted clarify the paragraph and will be made.
3745-300- 07(F)(5)(c)(iii)	Ohio EPA, Northeast District Office/DERR	Certified labs don't collect samples. Consider striking the work "collected" in the last sentence of this section.	Ohio EPA agrees. The suggested language deletion will be made.
3745-300- 07(F)(5)(d)(iv)	Ohio EPA, Northeast District Office/DERR	This section discusses biasing samples. Should we add language regarding appropriate location for screening ground water to determine if LNAPL or DNAPL are present?	Ohio EPA will keep the language as written. Specifically calling out NAPLs while omitting other COCs (or contaminants) in the rule language about biasing samples would be inappropriate and possibly confusing to the reader.
3745-300- 07(F)(5)(ef)(vii)	Hull and Associates, Inc.	The text should be revised as follows: "If it is necessary to take a ground water sample directly beneath a source area, the volunteer must use methods for monitoring well installation, construction, sampling and maintenance that will not cause ~~any chemicals or concern to be~~ ~~drawn into the ground water~~ cross-contamination between saturated units;"	Ohio EPA agrees to the changes with the following modification. . sampling and maintenance that will not cause ~~any chemicals or concern to be drawn into the ground water~~ cross-contamination between saturated units;"

Rule	Commenter	Issue	Response
3745-300-	Martin Smith,	There is an incorrect rule citation in paragraph (F)(7). The citation should refer to paragraphs (A)	Ohio EPA will correct this noted citation error.
07(F)(7)	Ohio EPA, VAP	and (B) of rule 3745-300-10 instead of paragraphs (B) and (C) of rule 3745-300-10.	Ohio EPA will correct this noted citation error.
3745-300- 07(F)(7)(b)(ii)	Martin Smith, Ohio EPA, VAP	Paragraph (F)(7)(b)(ii) - the word per cent should be one word and a hyphen needs to be added to the term "eight-inch diameter."	Ohio EPA will correct these typographical errors.
3745-300- 07(F)(7)(c)(i), (ii), and (iii)	Martin Smith, Ohio EPA, VAP	Paragraphs (F)(7)(c)(i), (ii), and (iii) - the words per cent should be one word.	Ohio EPA will correct this typographical error.
3745-300-	Hull and	This comment should be added to the proposed rule: [Comment: When classifying ground water	Ohio EPA does not agree because this issue is clearly stated in the actual rule language in the Ground Water
07(F)(7)(d)	Associates, Inc.	in accordance with paragraphs (A) and (B) of rule 3745-300-10 of the Administrative Code, the	Rule (OAC 3745-300-10) The Ground Water rule is where the actual ground water classification requirements are
[Comment		volunteer may be required to determine the total dissolved solids value for ground water on,	detailed and therefore the suggested comment language should be maintained in that rule.
following]		underlying or emanating from the Property. When determining the total dissolved solids value,
following]		the volunteer must comply with the requirements of paragraph (C) of this rule.]
3745-300-	Martin Smith,	There is an extra colon with a strikethrough at the end of paragraph (G)(3) that needs to be	Ohio EPA will correct this typographical error.
07(G)(3)	Ohio EPA, VAP	deleted.	Ohio EPA will correct this typographical error.
3745-300-	Ohio EPA,	The word "alternatively" should be removed from this rule. ".Depending on the intended purpose	Ohio EPA agrees with this comment and will make the suggested change to the rule.
07(G)(3)	Division of	of the modeling evaluation or type of model, the model may need to be calibrated to the geologic,
	Drinking and	hydrogeologic, or physical conditions throughout the modeled area. Alternatively, the model may
	Ground Water	need to be field-verified to determine if favorable comparisons exist between the modeled
		conditions and observed field conditions for the area being modeled." Both calibration and field
		verification may be necessary when modeling a property.
3745-300-	Ohio EPA,	The language in the comment indicates that there are three variables, however the word "both" is	Ohio EPA will correct this typographic error.
07(G)(5)	Northeast	used. Replace "both" with "all"
	District
	Office/DERR
3745-300-07(H)	Ohio EPA, Northeast District Office/DERR	This language may receive comment due to the amount slag and industrial fill throughout industrial counties. There should be continued discussion and research on how to address these issues for demonstration under the VAP. The current acceptable alternatives should be documented in a TDC to help CPs and volunteers in these areas.	Ohio EPA will be conducting additional discussion and research on the issues of regional background in the very near future. After the VAP rule revisions are complete, Ohio EPA will be convening a multidisciplinary workgroup to research and hopefully develop regional background levels for some of the contaminants that are either naturally occurring or are ubiquitous in the environment due to years of industrial operations in the region. This workgroup will be made up of experts from the agency, researchers from Ohio's universities and other external scientists who have extensive knowledge and experience in the area of environmental background determination. The results of this workgroup will be memorialized in a VAP guidance document and/or incorporated into the VAP rules, as appropriate.
3745-300- 07(H)(1)(b)(v)	Ohio EPA, Division of Drinking and Ground Water	The second sentence needs to be revised to agree in number. For example, "Railroad tracks or railway areas or other areas affected by their runoff. This restriction only applies when the chemicals of concern is are ~~one~~ those that would normally be associated with the activities conducted on or around the railroad tracks.."	Ohio EPA will correct these typographical errors.
3745-300- 07(H)(1)(d)(ii)(b)	Martin Smith, Ohio EPA, VAP	The equation in paragraph (H)(1)(d)(ii)(b) seems to have extra parts to it that are unnecessary the first nb-1 is not needed (I think).	Ohio EPA agrees with the equation error noted and will make the suggested deletion.
3745-300- 07(H)(1)(d)(ii)(b)	Ohio EPA, Northeast District Office/DERR	Typo. The formula has a small typo error.	Ohio EPA will correct this typographic error.
3745-300- 07(H)(1)(d)(ii)(c)	Ohio EPA Ohio EPA, Northeast District Office/DERR	Typo. Rule citation should have an italicized (d)	Ohio EPA will correct this typographic error.

Rule	Commenter	Issue	Response
3745-300- 07(H)(1)(d)(ii)(d)	JoAnn Bartsch, URS Corporation	The first sentence (Each sample point.....) does not make sense. The sentence says to do a comparison of the each data point to the maximum allowable limit, which was calculated using each data point. It's a circular argument! The sentence, furthermore, does not say what to do with the comparison! I believe the paragraph is trying to say that an outlier test should be conducted with the sampling points, but this should be done prior to the calculation of the maximum allowable limit. Any statistically valid outlier test should be allowed. I would recommend that the first sentence be deleted and the reference to an outlier test be inserted after	The VAP Multidisciplinary Board (MDB) recommended leaving the language for this option alone and adding an option to perform a test of means. This was the approach taken for the rule revision. Ohio EPA agrees that guidance such as a TDC could be useful to address the possible confusion regarding this issue but agrees with the MDB that the language should remain as is. Ohio EPA will work on guidance for this issue in the near future.
3745-300- 07(H)(1)(d)(ii)(d)	JoAnn Bartsch, URS Corporation	The last paragraph is irrelevant. You've already said that the volunteer can use the two guidance documents cited. Therefore, just because the data are not normal should not require consultation with Ohio EPA. Deleting this would make the on-Property background section consistent with the off-Property statistics.	Ohio EPA agrees and will make the suggested change.
3745-300-	Ohio EPA,	Corrections are needed in OAC3745-300-07(H)(4)(c). An "s" should be added to the DDAGW	Ohio EPA will correct these typographical errors.
07(H)(4)(c)	Division of	name. The rule comment should also refer to the ambient ground water quality database. Thus
	Drinking and	the sentence should read as follows: ".the Ohio EPA, division of drinking and ground waters,
	Ground Water	ambient ground water quality monitoring network database."
3745-300-	Ohio EPA,	Consider adding a paragraph to point the volunteers to ERAG for determining background for	Sediment Reference Values (SRVs) are considered an applicable standard for the VAP and the rule allows for
07(H)(5)	Northeast	sediments.	evaluation of upstream contribution. Incorporating this into the this part of the rule is not recommended by Ohio
	District		EPA because background for sediments is handled differently.
	Office/DERR
3745-300- 07(H)(5)	Ohio EPA, Northeast District Office/DERR	Add to this existing paragraph "sediment" to the listed environmental media.	Ohio EPA disagrees with this suggestion. Please see response to the above comment.
3745-300-07(I)(1)	Martin Smith, Ohio EPA, VAP	Paragraph (I)(1) - the first rule citation of paragraphs (C) and (D) should be deleted because data are collected based on more than requirements cited in these paragraph alone. Rule 3745-300- 07 has changed enough that we could simple cite a generic in accordance with this rule instead of listing specific paragraphs.	Ohio EPA agrees that a citation should be made to the entire Phase II rule because of the additional data collection requirements throughout the rule. The noted suggestion will be made.
3745-300- 07(I)(1)(a)(i)(a)	Ohio EPA, Northeast District Office/DERR	It is our understanding that it is the intent of the program to maintain the practice of encouraging residential land use to strive for a ten foot point of compliance. This may not however be the case in modified residential land uses. You may wish to add a comma following "unrestricted land use," in the first line to better link the practice of residential land uses meeting "unrestricted- 10 foot POC.	Ohio EPA believes the current wording without the comma more strongly links the practice of residential land uses meeting "unrestricted- 10 foot POC.
3745-300- 07(I)(1)(a)(i), (I)(1)(a)(i)(a), and (I)(1)(a)(i)(b)	Martin Smith, Ohio EPA, VAP	The term direct contact needs to be hyphenated in paragraphs (I)(1)(a)(i), (I)(1)(a)(i)(a), and (I)(1)(a)(i)(b). Also, the citation to paragraph (I)(1)(a)(i)(c) needs to have the "(c)" in italics. (mine does not have it in italics, but this may just be my copy)	Ohio EPA will correct these typographical errors.
3745-300-	Martin Smith,	The first sentence in paragraph (I)(2)(d) should be modified to read: "If laboratory data from prior	Ohio EPA agrees that the suggested changes will make the wording consistent with previous rule changes and will
07(I)(2)(d)	Ohio EPA, VAP	"Phase II ~~Property~~ Environmental Site Assessments", data generated by a mobile laboratory, or	make the noted revisions.
		studies not conducted in accordance with the rule are used to partially meet the requirements of
		this rule,." This wording will make it consistent with earlier rule changes.
3745-300-07(I)(3)	Martin Smith, Ohio EPA, VAP	Paragraph (I)(3) - the term "direct-contact" should be hyphenated.	Ohio EPA will correct this typographical error.
3745-300-	Martin Smith,	Paragraph (I)(3)(a) - the sentence should be modified to read ". for all ~~existing~~ current exposure	Ohio EPA agrees that the suggested change is more reflective of the intent of the rule and will make the noted
07(I)(3)(a)	Ohio EPA, VAP	pathways."	revision.
3745-300-	Ohio EPA,	The wording may be too encompassing, such as "each chemical of concern", and should note	Ohio EPA disagrees with this suggestion. This language has not changed since the previous rule revision in 2002.
07(I)(3)(b)	Northeast	that for all chemicals of concern the confirmatory sampling data should be compared to	No problems have been reported with the language to date so the preference is to leave the language alone.
	District	applicable standards. This may make it a little clearer that OEPA does not want all data placed
	Office/DERR	into a table even if it is not used as confirmatory data.

Rule

Commenter

Issue

Response

3745-300-

07(I)(4)(b)

Martin Smith, Ohio EPA, VAP

The last sentence of paragraph (I)(4)(b) cites paragraph (I)(1)(a). The current rule cites cited all of paragraph (I)(1) not just paragraph (I)(1)(a). It seems like we should go back to citing paragraph (I)(1). I am not sure why it was changed, but when I read paragraph (I)(4)(b), I think that it should apply to all media and not just soil.

Ohio EPA agrees that all of paragraph (I)(1) should be cited in (I)(4)(b). The change appears to be a transcription error made during the initial rule revisions and will be corrected.

3745-300-07(J)

Martin Smith, Ohio EPA, VAP

Paragraph (J) lists Phase II report requirements. We have added several new requirements and it seems like there could be a more user friendly way to organize the information. Also, some the requirements are very similar that they almost seem redundant. I have rewritten this section (see row below) in order to allow it to make more sense and combine similar concepts into one requirement. (The following is not in "redline-strike out" because it became too difficult to do.) A volunteer must complete a "Phase II Property Assessment" written report that at a minimum includes: (1) An introduction identifying the property, including the legal description of the property; the dates over which the "Phase I Property Assessment" and the "Phase II Property Assessment" were conducted and the date that the written report for each was finalized; and the name and job title of each person conducting the "Phase II Property Assessment"; (2) A summary of any amendment to the "Phase I Property Assessment" required by paragraph (E)(1)(b) of this rule; (3) A statement of the limitations or qualifications, if any, which impact the "Phase II Property

(4) A summary of the sampling procedures employed in accordance with paragraph (D) of this rule and the rationale for the sampling and testing activities conducted in accordance with the requirements of this rule; [This combines paragraphs (6) and (8) from the IPR version.] (5) A property map indicating the locations of all borings, monitoring wells, or other sampling locations;

(6) A summary of the data collection activities conducted under paragraph (E) of this rule, the data collected as a result of these activities, and a determination of the data usability based on the quality control information. The summary should include a discussion noting if the data meets the data quality objectives as required by paragraph (C) of this rule; [This combines paragraphs

(4) and (5) from the IPR version.] (7) A summary of the determinations made under paragraphs (F)(1) to (F)(9) of this rule and a summary of the rationale for the determinations made under paragraphs (F)(1) to (F)(9) of this rule;

(8) Geologic cross-sections representing the subsurface geologic and hydrogeologic conditions underlying the property including all saturated zones evaluated during the Phase II Property Assessment; (9) A property map indicating the locations of the identified areas at the property, and the concentration and physical distribution of the chemical(s) of concern identified in environmental media on, underlying or emanating from the property; (10) A summary of the background determination activities, if any, conducted under paragraph (H) of this rule; (11) A summary of any models used in accordance with paragraph (G) of this rule and inclusion of the documentation required by paragraph (G)(5) of this rule; (12) If an urban setting designation is being relied upon in part to address potable use pathway(s), a summary of the activities conducted in accordance with paragraph (C)(3) of rule 3745-300-10 of the Administrative Code;

Ohio EPA agrees that the suggested rewrite for paragraph (J) better reflects the intent of the paragraph and will adopt the suggested language with modifications.

Rule	Commenter	Issue	Response
		(13) If a property-specific risk assessment was conducted to determine applicable standards, a copy of the written risk assessment report must be attached to the "Phase II Property Assessment" report; (14) A summary of any remedial activities implemented prior to the issuance of the no further action letter as required by paragraph (I)(4) of this rule; (15) A discussion of whether the property complies with applicable standards and whether remedial activities have been or are being implemented to meet or maintain applicable standards and whether remedial activities have been or are being implemented to meet or maintain applicable standards in accordance with rule 3745-300-11 of the Administrative Code, and a summary of the applicable standards demonstration conducted in accordance with paragraph (I) of this rule; (16) A post-remedy elevation survey conducted by an Ohio registered surveyor to a two-foot contour interval completed for the property that relies on any institutional control; [Comment: A post-remedy elevation survey is not required for properties that have not completed a remedy at the time of issuance of the no further action letter. However, upon completion of remedial activities in accordance with OAC 3745-300-11 the post remedy elevation survey should be completed.] (17) A bibliography of references which identifies, to the extent available, the description, date, source, and location of the documents reviewed as part of the "Phase II Property Assessment" and the identification of all laboratories that performed analyses as part of the "Phase II Property Assessment"; and (18) Appendices for appropriate supporting documentation.
3745-300-	Ohio EPA,	Consider adding the bolded language. "A property map indicating the locations of the identified	Ohio EPA adding the suggested language better clarifies the meaning of the paragraph and will make the
07(J)(17)	Northeast	areas and exposure units.."	suggested change.
	District
	Office/DERR
3745-300-	Ohio EPA,	Consider adding the bolded language, [Comment: A post-remedy elevation survey is not	The intent of the rule change is to require an elevation survey at all properties with institutional controls that are
07(J)(20)	Northeast	required for properties that have not completed a remedy that may result in an elevation	relying on a point of compliance for direct contact with soil. This is true for all properties whether the remedy
	District	change.	results in an elevation change or not. Rule 3745-300-11 (the remedy rule) clarifies when an elevation survey is
	Office/DERR		required. The remedy rule clarifies that the elevation survey must be included in the NFA letter if the POC is
			established before the NFA letter. However, if remedial activities as part of O&M activities will establish the POC
			after the NFA letter, the survey will then become a requirement of the O&M plan. Ohio EPA will modify the
			comment language in the rule to clarify this.
3745-300-	Hull and	The comment should be revised as follows: "[Comment: A post-remedy elevation survey is not	Ohio EPA agrees and will correct this typographic error.
07(J)(20)	Associates, Inc.	required for properties that have not completed a remedy at the time of NFA issuance. However,
[Comment		upon completion of remedial activities in accordance with OAC 3745-300-15 11 the post remedy
following]		elevation survey be completed.]"
3745-300-07, -08, and -10	Ohio EPA, Division of Drinking and Ground Water	The MDB recommendation that free product on the ground water renders the ground water contaminated, thus requiring it to be classified and subject to the appropriate response requirements, is not clearly stated in the Interested Party Review rule package. Language should be added to Rules 07, 08 or 10 to explicitly state that the presence of free product on ground water indicates that the ground water is contaminated and needs to be classified.	Ohio EPA agrees adding rule language to paragraph (B)(2)(c) of rule 3745-300-08 will help clarify this issue. Changes to rules 07 and 10 are not necessary because once the standard is exceeded free product will be treated like any other COC. We do not have specific rule language to address any other COCs, so it would be inappropriate to identify free product as a specific COC.
3745-300-08	Cox-Colvin and Associates, Inc.	The "incorporation by reference" approach used in this section should be expanded to include the name of the agency that authored the document to make the reference easier to locate in Section 3745-300-01(L). For instance "Support Document for the Development of Generic Numerical Standards and Risk Assessment Procedures" may be more easily identifiable as "Ohio EPA's Support Document for the Development of Generic Numerical Standards and Risk Assessment Procedures".	Ohio EPA agrees that naming the Agency that developed the guidance document makes the rules easier to understand and will make the suggested change.

Rule	Commenter	Issue	Response
3745-300-	Ohio EPA,	Why are the single chemical and cumulative adjustment for multiple chemicals language not	Ohio EPA disagrees with this suggestion. Paragraph (A)(2)(a) sapplies to all COCs. There is no requirement to
08(A)(2)	Northeast	contained in this section? (A)(2)(a) should contain the single chemical language (see current rule	multiple chemically adjust COCs from petroleum releases. Language is clear in (C)(2).
	District	language (B)(2)(a)). (A)(2)(b) should contain the cumulative adjustment for multiple chemicals
	Office/DERR	language (see current rule language (B)(2)(b)) and then (A)(2)(c) should contain the summation
		of risk across complete pathways language, and so on. This section needs to be revised
		accordingly.
3745-300-	Hull and	The proposed rule language should be revised as follows: "If more than one complete exposure	Ohio EPA does not agree. Multiple exposure pathways need to be evaluated cumulatively. The VAP
08(A)(2)(a)	Associates, Inc.	pathway exists to each receptor population, within an exposure unit, the incremental cancer risk	Multidisciplinary Board agreed that this issue needed to be made quite clear in the rules and recommended that to
		and hazard indices determined for each pathway must be summed to calculate a cumulative	Ohio EPA's director.
		cancer risk and hazard index to each receptor population for all exposure pathways to which
		simultaneous, upperbound exposures are reasonably anticipated throughout the exposure
		duration. All final cumulative."
3745-300-	Ohio EPA,	This section should be titled ""Summation of risk across complete exposure pathways." In Rule	Ohio EPA agrees that adding the suggested language better clarifies the meaning of the paragraph and will make
08(A)(2)(a)	Northeast	01, there is no definition for pathway, only for exposure pathway. Therefore, exposure pathway	the suggested change.
	District	is the correct rule language that needs to be used consistently throughout Rules 07, 08, and 09.
	Office/DERR
3745-300-	Ohio EPA,	The rule language requires "All final cumulative human health carcinogenic risk and non-	This requirement is part of a list of assumptions and paragraph directly below (A)(2)(a), paragraph (A)(2)(b) states
08(A)(2)(a)	Northeast	carcinogenic hazard levels are based on one significant figure. However, the risk and hazard	the risk goals so there should be no confusion regarding what carcinogenic risk and non-carcinogenic hazard
	District	goals are missing and need to be added here as (A)(2)(a)(i) and (ii) or referenced. Copy the	levels have to be met in the VAP.
	Office/DERR	language from (A)(2)(b)(i) and (ii) insert it here or reference it.	levels have to be met in the VAP.
3745-300-	Martin Smith,	Paragraph (A)(3) lists the conditions under which a Property-specific risk assessment must be	Ohio EPA agrees and will modify the rule to address this issue.
08(A)(3)	Ohio EPA, VAP	completed. Paragraph (A)(3)(f) states that a PSRA must be completed if it is determined that
		COCs present in sediments or surface water on or emanating from the property are persistent,
		bioaccumulative, and toxic (PBTs) in animal tissue. This requirement is not consistent with the
		new rule requirements for paragraph (H) which indicated some ecotoxicologially-based
		benchmarks do address the PBT concerns. Also, some of the surface water standards cited in
		paragraph (F) may also address PBT concerns. Also, it may be OK for some pathways such as
		direct-contact with sediments for human health to be addressed by generic standards instead of
		requiring PSRA. If this is true, then this should be clarified. Given these problems, both rules
		3745-300-08 and 3745-300-09 need to be rewritten to better address how PBTs should be
		addressed.
3745-300-	Cox-Colvin and	The column heading for (A)(3)(b) Table II reads "Const. Single Chem GDCSS". The "Const.	Ohio EPA agrees. This typographic error will be corrected.
08(A)(3)(b)	Associates, Inc.	should be changed to reflect the Com./Ind. Generic standards in Table II: Generic-Contact Soil
08(A)(3)(b)	Associates, Inc.	Standards..Commercial and Industrial Land use Categories.
3745-300-	Cox-Colvin and	In Paragraph (A)(3)(e) the definition or explanation of the method to distinguish "important	The term "important terrestrial ecological resources" in no longer being used in the rule. and paragraph (A)(3)(e) of
08(A)(3)(e)	Associates, Inc.	terrestrial ecological resources" is not found in the text.	rule -08 was eliminated. Important ecological resource information was added to paragraph (A)(3) of rule -08.
3745-300-	Martin Smith,	An "s" needs to be added to "ground water response requirement", that is it should read "ground	Ohio EPA will correct this typographical error.
08(B)(2)(c)	Ohio EPA, VAP	water response requirements"	Ohio EPA will correct this typographical error.
3745-300-	Martin Smith,	Cites BUSTR regulations as being the VAP generic standards for petroleum. This paragraph	Ohio EPA agrees to the first suggested change but not the second. The second issue is better addressed in a
08(B)(3)	Ohio EPA, VAP	does not mention either of the key issues discussed during the MBD workgroup which are: 1) free	TDC on using BUSTR standards in the VAP which will be developed in the near future.
		product on ground water means that UPUS is exceeded and 2) all free product regardless of
		depth must be removed in order for BUSTR applicable standards to be met. These are important
		enough that these requirements should be included in rule. Also, the use of BUSTR applicable
		standards as VAP generic standards is confusing enough we should include a comment that asks
		volunteers to contact Ohio EPA for guidance on how to use BUSTR standards in a voluntary
		action. This has been done in a few other places in the VAP rules and it should also be
		considered here.

Rule	Commenter	Issue	Response
3745-300-	Ohio EPA,	Should be titled "Summation of risk across complete exposure pathways" and should contain the	Ohio EPA disagrees with this suggestion. The language in paragraph (A)(2)(a) states clearly that it applies to the
08(C)(2)(c)	Northeast	rule language in this draft contained in (A)(2)(a). Workgroup 3 discussed this issue in detail, and	entire generic numerical standards rule so repeating the language is not necessary.
	District	the MDB agreed (Issue #11, January 2007) that "Clarification in the Generic Standards rule is
	Office/DERR	needed to remind volunteers that summation of risk across complete exposure pathways is
		required similar to the summation of risk language in the Risk Assessment rule." The current
		(C)(2)(c) "Land use and activity categories should then be changed to (C)(2)(d).
3745-300- 08(C)(2)(c)(ii)	Hull and Associates, Inc.	In the current rule, several more examples of commercial land use are provided to illustrate the definition. Several of these uses (building supply facilities, automobile service stations, automobile dealerships, retail warehouses, retail businesses selling food or merchandise) are redundant to other listed uses and may not be needed or useful; however, several other examples listed in the current rule, including golf courses and religious institutions, are unique and useful examples of commercial land use and should be retained as examples in the proposed rule.	Ohio EPA does not agree. Recreational and green space land uses were taken out of residential land use and golf courses were taken out of commercial land use. The program intends to address these types of uses based on the specifics of the particular site. The types, and hence potential exposures, for recreational lands, green spaces and golf courses can vary greatly so it is best to deal with each in a property-specific manner.
3745-300-	Hull and	The average shallow groundwater temperature in Ohio is approximately 11° C to 14º C (which is	Ohio EPA agrees, however, at this point, the research necessary to evaluate this would take considerable time and
08(C)(3)(a)	Associates, Inc.	equivalent to 52º F to 57º F); thus 14º C is an appropriate upper-bound estimate of mean annual	therefore, will have to be incorporated into the next rule revision. A quick look at the parameters for the chemicals
		ambient soil temperatures based on Oho-specific data rather than average national data. Thus	having generic numerical standards indicates that a change would not impact the standards.
		the proposed rule should be revised to read "therefore, no generic soil saturation values were
		calculated for those chemicals whose melting point is greater than 1714º C."
3745-300-	Hull and	This language in the proposed rule should be modified as follows: "Further, soil saturation values	Ohio EPA does not agree. The hierarchy for these values did not come from published literature sources only.
08(C)(3)(a)	Associates, Inc.	were determined only for those chemicals whose physicochemical parameters used to derive the
08(C)(3)(a)	Associates, Inc.	soil saturation concentrations ~~could be verified~~ were confirmed in the published literature.
3745-300-	Hull and	The cell labeled "Const. Single Chem GDCSS (mg/kg)" in the Table II title block should be	Ohio EPA agrees and will correct this typographical error.
08(C)(3)(c)	Associates, Inc.	revised to "Comm/Ind Single Chem GDCSS (mg/kg)".	Ohio EPA agrees and will correct this typographical error.
3745-300- 08(C)(3)(e)(ii)	Hull and Associates, Inc.	This list of sources in this subparagraph of the proposed rule does not match the list of sources provided in paragraph (H)(1)(e)(i) of proposed rule 3745-300-09. These two citations should agree. Since the list in proposed rule 3745-300-09(H)(1)(e)(i) is more comprehensive, the list in proposed rule 3745-300-08(C)(3)(e)(iii) should be revised to concur with it.	Ohio EPA agrees and the additional sources have been added to 3745-300-08.
3745-300-	Hull and	Hull was not able to reproduce the generic direct-contact soil lead standard for Construction and	Hull did not change a parameter in their trial run to comport with VAP protocol, hence the value was not
08(C)(3)(f)	Associates, Inc.	Excavation Activities, based on the information provided in the revised draft Support Document.	reproduced. VAP standard as proposed is appropriate. Ohio EPA will address the inconsistency between the
		Therefore, Ohio EPA's derivation of this generic standard, and the write-up in the Support	promulgated standard and the revised draft Support Document.
		Document, need to be verified. Based on Hull's interpretation of the guidance, Hull derived a soil
		lead standard for construction/excavation activities that was less than the residential direct
		contact soil lead standard. There is also an inconsistency between the soil lead standard for
		standard as stated in the proposed rule (750 mg/kg) and in the revised draft Support Document
		(800). Whether this is an issue of rounding to one significant or two significant digits needs to be
		clarified.
3745-300-	Martin Smith,	the quotes around "MCLs" are not needed and should be removed to be consistent with the rest	Ohio EPA will correct this typographical error.
08(D)(2)(a)	Ohio EPA, VAP	of the rule.	Ohio EPA will correct this typographical error.
3745-300-	Ohio EPA,	Recommend adding this section with the following title: "Summation of risk across complete	Ohio EPA disagrees with this suggestion. The language in paragraph (A)(2)(a) states clearly that it applies to the
08(D)(2)(d)	Northeast	exposure pathways" and it should contain the rule language in this draft contained in (A)(2)(a).	entire generic numerical standards rule so repeating the language is not necessary.
	District	Workgroup 3 discussed this issue in detail, and the MDB agreed (Issue #11, January 2007) that
	Office/DERR	"Clarification in the Generic Standards rule is needed to remind volunteers that summation of risk
		across complete exposure pathways is required similar to the summation of risk language in the
		Risk Assessment rule." In addition to multiple chemicals, multiple complete exposure pathways
		need to be summed to demonstrate the cumulative risk goals are met in Rule 08 and well as Rule
		09.

Rule	Commenter	Issue	Response
3745-300-	Martin Smith,	Paragraph is redundant and not needed. It should be deleted. Paragraph (D)(1)(c) already	Ohio EPA agrees that paragraph (D)(3)(a) is redundant. However, the change will not be made at this time.
08(D)(3)(a)	Ohio EPA, VAP	addresses this and a similar paragraph was not included in paragraph (C) for soils.
3745-300-	Ohio EPA,	The value for nickel needs to be deleted from Table V of rule 3745-300- 08(D)(3)(b). Nickel	Ohio EPA agrees with this comment and will make the noted deletion.
08(D)(3)(b)	Division of	does not have a maximum contaminant Level (MCL). A risked-based value has been calculated
	Drinking and	by the VAP risk assessors and included in Table VI.
	Ground Water	by the VAP risk assessors and included in Table VI.
3745-300-	Martin Smith,	The word "direct-contact" needs to be hyphenated in paragraphs (E)(1)(a) and (b). Also, the	Ohio EPA will correct these typographical errors.
08(E)(1)(a)	Ohio EPA, VAP	word "non-cancer" needs to be hyphenated in paragraphs (E)(1)(b) and (E)(2)(b). [see the
08(E)(1)(a)	Ohio EPA, VAP	equations]
3745-300-	Ohio EPA,	Recommend adding section titled "Summation of risk across exposure pathways." This section	Ohio EPA disagrees with this suggestion. Please see comment above.
08(E)(3)	Northeast	could then refer back to (A)(2) to ensure human health carcinogenic risk and non-carcinogenic
	District	hazard levels risk for each receptor do not exceed the cumulative risk goals.
	Office/DERR
3745-300-08(F)	Martin Smith, Ohio EPA, VAP	Paragraph (F) - rule language for how to address PBTs should probably be included in the rule.	Ohio EPA has made changes to paragraph (A)(3)(f) to address this issue.
3745-300-	Hull and	Verify that this is consistent with the sampling requirements in proposed rule 3745-300-07 (E)(5)	Collection of surface water samples will still follow rule 3745-300-07 (E)(5) and (F)(5)(a). How many samples are
08(F)(2)(a)	Associates, Inc.	and (F)(5)(a).	required over what time period to develop an OMZA and/or OMZM will be explained in a VAP TDC that will be
08(F)(2)(a)	Associates, Inc.	and (F)(5)(a).	developed in the near future.
3745-300-	Ohio EPA,	In the second sentence, recommend changing the word "should" to "must" since this is rule	Ohio EPA disagrees with this suggestion. This language was approved during discussions with DSW concerning
08(F)(2)(a)	Northeast	language.	how to apply their rules. The VAP will write guidance (TDC) in the near future to better explain how to conduct
	District		these evaluations.
	Office/DERR		these evaluations.
3745-300-	Martin Smith,	Paragraph (F)(2)(b) - the quotes around "Ohio NPDES permit" are not needed and should be	Ohio EPA will correct this typographical error.
08(F)(2)(b)	Ohio EPA, VAP	removed to be consistent with the rest of the rule.	Ohio EPA will correct this typographical error.
3745-300-	Hull and	Paragraph should be modified as follows: "If human exposures to sediments are reasonably	Ohio EPA does not agree. The first part of the suggested change is already addressed in paragraph (G)(1) of the
08(G)(2)(a)	Associates, Inc.	anticipated, generic direct-contact standards screening criteria for sediments are the generic	Generic Standards rule. The language for the second part has been changed to include direct contact standards
		direct-contact soil ~~standards~~ screening criteria for the appropriate land use specified in paragraph	for residential land use only. These are not screening values.
		(C) of this rule. Cumulative adjustment for multiple chemicals must be evaluated in accordance
		with paragraph (C)(2)(b) of this rule." (period missing at end of paragraph)
3745-300-	Martin Smith,	Paragraph (G)(2)(a) states that ".the generic standards for human exposure to sediment are the	Ohio EPA agrees to change the rule to refer to using the residential direct-contact soil standard as the applicable
08(G)(2)(a)	Ohio EPA, VAP	generic direct-contact soil standards for the appropriate land use specific in paragraph (C)(3) of	generic sediment standard for all land uses.
		this rule." This is a change from earlier versions of this revised rule. Earlier versions stated that
		the generic standards for human exposure to sediment are the residential direct-contact soil
		standards. This would be consistent with the current TDC. I am not aware of any discussions on
		this issue other than the desire to adopt the TDC as rule. What is the reason for the change from
		the previous versions and how was this decided?
3745-300- 08(G)(2)(b)	Hull and Associates, Inc.	Delete 2nd period at the end of the paragraph.	Ohio EPA agrees and will correct this typographical error.
3745-300- 08(G)(2)(b)	Martin Smith, Ohio EPA, VAP	Paragraph (G)(2)(b) - the second period at the end of this paragraph needs to be removed.	Ohio EPA will correct this typographical error.
3745-300-	Hull and	The text in the proposed rule should be revised as follows: "For each chemical of concern for	Ohio EPA agrees that these changes clarify the meaning of this paragraph and will make the suggested revisions.
08(H)(1)(b)	Associates, Inc.	which If the volunteer does not compare the sediment concentrations ~~of chemicals of concern~~ to
		the Ohio-specific SRV, the ecotoxicologically-based benchmarks from the hierarchy must be
		used:"
3745-300- 08(H)(1)(b)(ii)	Martin Smith, Ohio EPA, VAP	Paragraph (H)(1)(b)(ii) - quotes are needed around "U.S. EPA, Region 5 Ecological Screening Levels"	Changesd to lower case rather than use quotes.

Rule	Commenter	Issue	Response
3745-300-	Hull and	It is not clear what the implications of this proposed rule are for the volunteer, i.e., how attainment	Clarification: 3745-300-08 (H) has been restructured and language pertaining to utilizing bioassay or biocriteria
08(H)(2)	Associates, Inc.	with standards would be achieved. It is difficult to ascertain how these methodologies are in any	prior to sediment sampling has been moved to 3745-300-09.
		way a "generic standard". This subparagraph should either be re-written to provide greater clarity
		or be deleted from rule 3745-300-08.
3745-300-	Martin Smith,	Paragraph (H)(2) - the word "non-attainment" in the last sentence of the first paragraph need a	Ohio EPA agrees with this suggestion and has moved this paragraph to rule -09.
08(H)(2)	Ohio EPA, VAP	hyphen. Also, the paragraph should be rewritten so that there is an (a) and a (b). Paragraph (a)
		should begin with the sentence "If sediment bioassay." and paragraph (b) should begin with the
		sentence "A volunteer may use historical biological data." As an aside, the information in these
		two new paragraphs (a) and (b) are requirements specific for the assessment of sediment under
		a PSRA. Therefore, it would make more sense to move these to rule 3745-300-09 or to at least
		repeat them there.
3745-300-	Hull and	This paragraph should be deleted from the rule. This additional evaluation step in the sediment	Ohio EPA does not agree, as this requirement is not a new addition to the rule. It was previously in a comment
08(H)(3)	Associates, Inc.	screening methodology is needlessly burdensome for Volunteers. The ecotoxicological	following OAC 3745-300-09(F)(2)(b)(ii). Guidance (TDC) will be forthcoming on how to address PBTs.
		benchmarks have already been established as appropriate screening concentrations. If the Ohio
		EPA believes that the methodology for the determination of ecotoxicologically-based benchmarks
		for one or more PBTs is inappropriate, then Ohio EPA should identify those PBTs for which it
		believes the ecotoxicologically-based benchmarks in the rule to be inappropriate and develop an
		alternative screening concentration for each PBT and provide for further interested party and
		peer review of those screening concentrations.
3745-300-	Martin Smith,	Paragraph (H)(3) does not appear to be consistent with paragraph (A)(3)(f) which requires a	Ohio EPA agrees and changes have been made to paragraph (A)(3)(f) to address this issue.
08(H)(3)	Ohio EPA, VAP	PSRA for PBTs. This needs to be resolved.
3745-300-	Martin Smith,	Paragraph (H)(3) should be rewritten to help clarify the PBT issue and to read more clearly. Also,	Ohio EPA deleted Paragraph (H)(3) altogether and added PBT language to the applicability section in 3745-300-
08(H)(3)	Ohio EPA, VAP	it should be moved to (H)(2) since it discusses when the standards from (H)(1) cannot be used.	08 (A)(3)(f) to address this issue.
		Here is the recommended rule language: "The generic numerical standards from paragraph
		(H)(1) of this rule cannot be used for chemicals of concern that are persistent, bioaccumulative
		and toxic unless the method used to derive the value includes exposure to higher trophic level
		organism(s) in its development. Unless the standard from paragraph (H)(1) meets this criteria,
		the persistent, bioaccumulative and toxic chemicals must be evaluated using a food-web model
		that contains one top predator that feeds predominantly on mammals or fish associated with the
		affected media. These evaluations must be conducted in accordance with rule 3745-300-09 of
		the Administrative Code."
3745-300- 08(H)(4) and (5)	Martin Smith, Ohio EPA, VAP	The rule citations in paragraph (H)(4) and (H)(5) need to be updated if paragraph (H)(3) is moved to paragraph (H)(2).	Ohio EPA corrected the citations pursuant to the response directly above.
3745-300-	Martin Smith,	The citation to paragraph (G) of rule 3745-300-09 should instead refer to paragraphs (E) and (F)	Ohio EPA will correct these typographical errors.
08(H)(5)	Ohio EPA, VAP	of rule 3745-300-09.	Ohio EPA will correct these typographical errors.
3745-300-	Martin Smith,	The rule citation in this paragraph should be changed to read paragraph (H)(1) and the rule	Both SRVs and sediment benchmarks are now included in (H)(2).
08(H)(5)(b)	Ohio EPA, VAP	language should include SRVs in addition to benchmarks. Therefore, it would read: "The
		sediment samples were not compared to the appropriate SRVs or benchmarks in accordance
		with paragraph (H)(1)(b) of this rule; or"
3745-300-	Hull and	In accordance with the comment on proposed rule 3745-300-08(H)(3) above, this subparagraph	Ohio EPA does not agree, as this requirement is not a new addition to the rule. It was previously in comment
08(H)(5)(c)	Associates, Inc.	should also be deleted from the proposed rule.	following OAC 3745-300-09(F)(2)(b)(ii). A TDC will be forthcoming on how to address PBTs.
3745-300-	Hull and	The text should be revised as follows, so that it is consistent with proposed rule 3745-300-	Ohio EPA agrees that the suggested change should be made. Soil standards for leaching are not required to be
08(I)(1)(a)	Associates, Inc.	07(F)(3)(a)(ii): "Soil standards for leaching ~~must~~ may be developed when one or more ground	developed under this circumstance in every instance.
		water zones are determined to meet unrestricted potable use standards and the potential for
		leaching of the chemicals of concern from soil to ground water is determined to a complete
		exposure pathway."

Rule	Commenter	Issue	Response
3745-300- 08(I)(1)(b)	Hull and Associates, Inc.	The text should be revised as follows: "Soil standards for leaching ~~must~~ may be developed when one ore more ground water zones are determined to exceed unrestricted potable use standards and the potential for leaching of the chemicals of concern from soil to ground water is determined to a complete exposure pathway that must be evaluated."	Ohio EPA agrees that the suggested change should be made. See above response for explanation.
3745-300- 08(I)(1)(b)(i)	Hull and Associates, Inc.	The text of the proposed rule should be revised to specifically list out each subparagraph as follows: "Applicable ground water response requirements contained in paragraphs (E)(2)(c), (E)(3)(c), (E)(4)(c), (E)(5)(c), and (E)(6)(c) of rule 3745-300-10 of the Administrative Code.	Although the suggested subparagraph additions are instances where the rule specifically mentions leaching there are other instances where leaching would also have to be evaluated. There is a TDC that discusses this. See TDC document VA30007.06.003 - "Requirements to Evaluate Leaching When Ground Water Exceeds Unrestricted Potable Use Standards ". Ohio EPA prefers to keep the citation broad so that the volunteer and CP can determine whether leaching must be evaluated based on the specifics of the site.
3745-300-09	Ohio EPA, Division of Drinking and Ground Water	The redline/strikeout version of Rule 09 does not appear to be strictly based on the 2002 rule language.	Agreed, this rule will be rescinded and a new clean copy of this revised rule will be filed with JCARR.
3745-300-	Martin Smith,	Paragraph (A)(4) lists the conditions under which a Property-specific risk assessment must be	Changes were made to Rules 3745-300-08 and -09 to clarify when a property specific risk assessment must be
09(A)(4)	Ohio EPA, VAP	completed. Paragraph (A)(4)(f) states that a PSRA must be completed if it is determined that	done for PBTs. The changes are made mainly in the applicability sections of each rule.
		COCs present in sediments or surface water on or emanating from the property are persistent,
		bioaccumulative, and toxic (PBTs) in animal tissue. This requirement is not consistent with the
		new rule requirements for paragraph (H) of rule 3745-300-08 which indicated some
		ecotoxicologially-based benchmarks do address the PBT concerns. Also, some of the surface
		water standards cited in paragraph (F) of rule 3745-300-08 may also address PBT concerns.
		Also, it may be OK for some pathways such as direct-contact with sediments for human health to
		be addressed by generic standards instead of requiring PSRA. If this is true, then this should be
		clarified. Given these problems, both rules 3745-300-08 and 3745-300-09 need to be rewritten to
		better address how PBTs should be addressed.
3745-300-	Martin Smith,	The first rule citation to paragraph (D) of rule 3745-300-07 should instead cite paragraph (F)(1) of	Ohio EPA will make the noted citation correction.
09(A)(4)(a)	Ohio EPA, VAP	rule 3745-300-07	Ohio EPA will make the noted citation correction.
3745-300-	Martin Smith,	The rule citation to paragraph (D)(2)(b) of rule 3745-300-07 should instead cite paragraph	This section was rewritten and the citations are no longer included.
09(A)(4)(c)	Ohio EPA, VAP	(E)(3)(d) of rule 3745-300-07. The rule citation to paragraph (C)(2)(b) of rule 3745-300-08 should
09(A)(4)(c)	Ohio EPA, VAP	instead cite paragraphs (A)(2)(a) and (E)
3745-300-	Martin Smith,	The words "and hazard" need to be deleted from the rule so that it reads ".the cumulative	Since paragraph (B)(1) refers to only carcinogenic risk, Ohio EPA agrees that the term hazard should be deleted.
09(B)(1)	Ohio EPA, VAP	human health carcinogenic risk must not exceed the following risk ~~and hazard~~ levels."
3745-300-	Hull and	It may be more appropriate to include the list of required analytes in proposed rule 3745-300-07.	This list of analytes is applicable only for OAC 3745-300-09 since it is specifically used when conducting a risk
09(C)(1)	Associates, Inc.		assessment. Ohio EPA therefore believes it would not be appropriate to include this in rule 3745-300-07.
3745-300-	Hull and	Delete n-hexane from this list of indicator chemicals from an unknown source. N-hexane is not	Ohio EPA agrees that n-hexane should be removed from the list of indicator chemicals from an unknown source
09(C)(1)(d)	Associates, Inc.	an indicator chemical for the light petroleum fraction analyte list in the current rule 3745-300-08,	and will make the suggested change.
		or in the proposed rule. The proposed rule should be revised to read, "For petroleum from an
		unknown source, environmental media must be analyzed for benzene, ethylbenzene, toluene,
		total xylenes, ~~n-hexane~~, naphthalene, benzo(a)anthracene, benzo(a)pyrene,
		benzo(b)fluoranthene, benzo(k)fluoranthene, chrysene, dibenzo(a,h,)anthracene, indeno(1,2,3-
		cd)pyrene, acenaphthene, anthracene, fluoranthene, fluorine, and pyrene."
3745-300-	Martin Smith,	Words are missing in the last sentence of this paragraph. The last sentence should be modified	Ohio EPA will add the noted language which was inadvertently deleted from this revised rule.
09(C)(1)(d)	Ohio EPA, VAP	to read: "In addition, additional chemicals of concern that may be typical impurities of used
09(C)(1)(d)	Ohio EPA, VAP	petroleum fractions must also be identified and included in the analysis, as appropriate."

Rule	Commenter	Issue	Response
3745-300- 09(C)(1)(d)	Ohio EPA, Northeast District Office/DERR	MTBE is missing from the list of COCs to assess for the unknown category and needs to be added.	Ohio EPA has noted this omission and will add MTBE to the list of COCs to assess for the unknown category.
3745-300- 09(C)(2)(a)	Martin Smith, Ohio EPA, VAP	The word in needs to be added to the rule so that it reads ". generic numerical standards contained in rule 3745-300-08." Also, a space is needed before the word "of" so that it reads: ".paragraphs (B) and (D)(3)(d) of this."	Ohio EPA will correct these typographical errors.
3745-300-	Hull and	This newly-added language in the proposed rule implies that Property-specific vertical hydraulic	Ohio EPA agrees that this definition could be written more clearly. The definition has been revised to address this
09(C)(2)(b)	Associates, Inc.	conductivity must be determined so that the appropriate TPH residual saturation concentration	issue.
		may be identified (i.e., whenever TPH is detected in soil at a Property). This requirement is
		unnecessary and potentially costly. The appropriate soil type (and thus, the appropriate TPH
		residual saturation soil concentrations) may be determined by the narrative descriptions in soil
		boring logs, or by grain size analysis. The language in the proposed rule should be revised to
		read, "Soil saturation concentrations of total petroleum hydrocarbons must be determined for the
		property be determining the ~~vertical hydraulic conductivity of the unsaturated s~~oil type most
		representative of the soils impacted by petroleum, and applying the residual saturation
		concentration contained in Table 1 of this rule corresponding to the ~~property specific~~ petroleum
		fraction identified at the Property."
3745-300-	Martin Smith,	Table I - the formatting of subscripts and superscripts in the table and in the footnote need to be	Ohio EPA will correct these typographical errors.
09(C)(2)(b)	Ohio EPA, VAP	corrected.	Ohio EPA will correct these typographical errors.
3745-300-	Hull and	This language implies that it is always necessary to prepare a Property-Specific Risk Assessment	Ohio EPA agrees that this definition could be written more clearly. The definition has been revised to address this
09(D)(1)	Associates, Inc.	for each VAP Property. The language in the proposed rule should be revised as follows:	issue.
		"Whenever a "Phase II Property Assessment", conducted in accordance with rule 3745-300-07 of
		the Administrative Code, identifies any complete exposure pathway to human receptors, a human
		health property-specific risk assessment conducted in accordance with paragraph (A) of this
		rule." (Note: There should be a comma placed after Administrative Code.)
3745-300- 09(D)(2)(c)(ii)	Martin Smith, Ohio EPA, VAP	Paragraph (D)(2)(c)(ii) - there appears to be an extra space before the word enforced. This space should be deleted.	Ohio EPA will correct this typographical error.
3745-300- 09(D)(2)(d)(i)	Martin Smith, Ohio EPA, VAP	For readability, the citations to the numerous paragraphs should be replaced so that it reads ".applicable standards in paragraphs (B), (C), (E), (F), (G), or (H) of determined in accordance with this rule;"	The paragraph has been rewritten to include the entire rule.
3745-300-	Hull and	The state of the science for the evaluation of chemical mixtures is insufficient to require that such	Ohio EPA agrees and will take this under advisement for review during the next five-year rule review.
09(D)(2)(e)	Associates, Inc.	an evaluation must be performed whenever such chemical mixtures are present at a Property; the
		data that are available are limited, and the Property-specific risk assessment procedures
		described in the rule do not provide any framework, in general, for addressing chemical mixtures.
		The appropriateness of this requirement should be reviewed again at the next five-year rule
		review.
3745-300- 09(D)(3)(b)(iv)(a)	Martin Smith, Ohio EPA, VAP	The citation to paragraph (F) of rule 3745-300-07 needs to be corrected to instead cite paragraph (E) if rule 3745-300-07	Ohio EPA will make the noted citation correction.

Rule	Commenter	Issue	Response
3745-300-09(E)	Martin Smith, Ohio EPA, VAP	(E) Procedures for ecological risk assessment.(1) If complete exposure pathways to important ecological resources exist, an ecological risk assessment must be conducted for the property unless the following circumstances apply: (a) Exposure to chemicals of concern in surface water or sediment do not have to be evaluated when applicable standards determined in accordance with paragraphs (F) or (H) of rule 3745-300-08 of the Administrative Code are met; or (b) Exposure pathways originate from the sediments on the property, unless the chemicals of concern are persistent, bioaccumulative and toxic. If the chemicals are not persistent, bioaccumulative and toxic, the sediments must be addressed in accordance with paragraph (F)(2) of this rule. Chemicals that are persistent, bioaccumulative and toxic must be evaluated the following way: (i) The sediments must be addressed in accordance with paragraph (F)(2) of this rule; and (ii) The persistent, bioaccumulative and toxic chemicals of concern must be evaluated using a food-web model that contains one top predator that feeds predominantly on mammals or fish associated with the affected media. This evaluation must be conducted in accordance with paragraph (E)(2) of this rule. (2) An ecological risk assessment may be either qualitative or quantitative, but it must be conducted in accordance with the "Guidance for Conducting Ecological Risk Assessments." A qualitative property-specific ecological risk assessment may be appropriate and may be conducted in order to demonstrate that chemicals of concern are not on, underlying or emanating from a property at concentrations that could be harmful to important ecological resources in cases where toxicity is likely to be low based on the concentrations of chemicals of concern, the land use, the habitat quality and the areal extent of the habitat. If a qualitative ecological risk assessment is not appropriate or is not desired by the volunteer, then a quantitative ecological risk assessment must be conducted. (3) Data collection to assess ecological risk for both qualitative and quantitative ecological property-specific risk assessments must be performed in accordance with rule 3745-300-07 of the Administrative Code.	When and how to address persistent, bioaccumulative, and toxic chemicals (PBTs) can now be found in the applicability sections of Rules 3745-300-08 and -09. Having the PBT issue addressed in the applicability sections of these rules is the most appropriate and least confusing way for Ohio EPA to address this issue in rule language.
3745-300-	Martin Smith,	The rule language should be modified to include SRVs as well as benchmarks. It should read	Ohio EPA agrees that Sediment Reference Values (SVRs) should be included to meet the intent of the rule. The
09(F)(2)	Ohio EPA, VAP	".compared to appropriate SRVs or benchmarks in accordance with."	language was changed to refer to paragraph (H)(2) of -08 which includes both SRVs and benchmarks.
3745-300-	Hull and	The text in proposed rule should be revised to read, ""For all surface waters with an aquatic life	Ohio EPA does not agree with this suggested revision. Discussions with the Division of Surface Water resulted in a
09(F)(2)(b)	Associates, Inc.	use designation of limited resource water or have no aquatic life use designation assigned under	change to the language. Division of Surface Water requires that either an aquatic life use designation be
		Chapter 3745-1 of the Administrative Code, or that are a lake, reservoir, wetland or pond,	conducted or apply biocriteria for warm water habitat.
		sediment bioassays using sediment samples taken from the surface waters on the property must
		be conducted to evaluate sediment toxicity."
3745-300-	Hull and	When surface waters have no aquatic life use designation, the volunteer should retain the option	Ohio EPA does not agree with this suggested revision. Discussions with the Division of Surface Water resulted in a
09(F)(2)(c)	Associates, Inc.	of a bioassay in lieu of a use attainability analysis (as is described in the current rule). The	change to the language. Division of Surface Water requires that either an aquatic life use designation be
		proposed rule should be revised to read, "For all surface waters with an aquatic life use	conducted or apply biocriteria for warm water habitat.
		designation of limited warm water habitat, ~~or has no aquatic life use designation assigned~~ under
		Chapter 3745-1 of the Administrative Code, a volunteer must either conduct a use attainability
		analysis as detailed in the "Biocriteria Manual" to assign the appropriate aquatic life use
		designation, or apply biocriteria for warm water habitat. Consult with a Ohio EPA division of
		emergency and remedial response representative for assistance in making a determination on an
		aquatic life use designation for an unlisted waterbody."
3745-300-	Martin Smith,	Do the actions listed under paragraph (F)(4) apply to sediments with PBTs that are evaluated	Yes. The actions listed under paragraph (F)(4) apply to persistent, bioaccumulative, and toxic chemicals (PBTs) as
09(F)(4)	Ohio EPA, VAP	under paragraph (E)? If the answer is no, should they?	well. The goal is to not have to demonstrate protectiveness to ecological resources from an off-property source.

Rule	Commenter	Issue	Response
3745-300-09(G)	Martin Smith, Ohio EPA, VAP	Should the citation to paragraph (F) of rule 3745-300-08 be narrowed to only include paragraph (F)(2)(a) of rule 3745-300-08? This would make sense because if the conditions in paragraphs (F)(2)(b) and (c) apply, those conditions could be modified or violated. Also, the citation to paragraph (F)(3) at the end of the rule should also include paragraph (E). Finally, the issue of whether this paragraph needs to be expanded to address PBTs needs to be addressed.	Paragraph (G) of rule -09 has been modified to include only paragraph (F)(2)(a) of rule -09. Paragraph (E) has been added to the citation.
3745-300-	Martin Smith,	Because there is not (H)(2) under paragraph (H), everything in paragraph (H)(1) needs to be	Ohio EPA will make the suggested change to comport with rule construction protocol.
09(H)(1)	Ohio EPA, VAP	moved up a level. It is recommended that the new title for paragraph (H) be the title from
09(H)(1)	Ohio EPA, VAP	paragraph (H)(1).
3745-300-	Martin Smith,	The rule language should be modified to read: "If the volunteer elects to or is required to apply	Ohio EPA agrees that volunteers can elect or be required to conduct risk assessments and will make the noted
09(H)(1)	Ohio EPA, VAP	risk derived standards."	language addition.
3745-300-	Martin Smith,	(H)(1)(e) - the rule citation should be updated to cite paragraphs (H)(1) to (H)(4) instead of	Ohio EPA agrees to the change.
09(H)(1)(e)	Ohio EPA, VAP	(H)(1)(a) to (H)(1)(d)	Ohio EPA agrees to the change.
3745-300-	Martin Smith,	The Csat equation needs to be fixed. It does not appear to have all the correct mathematical	Ohio EPA will correct these typographical errors.
09(H)(1)(e)	Ohio EPA, VAP	symbols. Also the apostrophe in "Henry's Law constant" needs to be moved to the correct
09(H)(1)(e)	Ohio EPA, VAP	location.
3745-300- 09(H)(1)(e)(i)(g)	Martin Smith, Ohio EPA, VAP	Paragraph (H)(1)(e)(i)(g) - there appears to be an extra space between the words "remedial response" which needs to be deleted.	Ohio EPA will correct this typographical error.
3745-300-09(I)(7)	Martin Smith, Ohio EPA, VAP	There appears to be an extra space in the rule citation in this paragraph. That is, ".paragraph (D )(3)(d)."	Ohio EPA will correct this typographical error.
3745-300-	Martin Smith,	The word "in" needs to be removed from the rule citation language, for example: ".in	Ohio EPA will correct these grammatical errors.
09(I)(8), (9), (10),	Ohio EPA, VAP	accordance with in paragraph (E) of this rule"
and (11)	Ohio EPA, VAP	accordance with in paragraph (E) of this rule"
3745-300-10	Amy Yersavich, Ohio EPA, VAP	Is there any JCARR-approvable way we can just put the comment listed below in rule -10 only once and then refer to it as needed throughout the rest of rule -10 (it's repeated in the rule several times and it would read nicer if it only was listed once with references back). [Comment: Examples of such exposures include, but are not limited to: exposures to industrial process water; water used for lawn watering; water used for irrigation; shallow ground water contaminated with volatile organic compounds that volatilize into the breathing space of an inhabited structure; and shallow ground water seeping into sub-surface utility tunnels or sewers.]	The comment is better left in all places noted in rule 3745-300-10 since much of the rule language is repetitive and needs to be so in order to allow the reader to carefully follow the response requirements of this rule.
3745-300-10	Ohio EPA, Division of Drinking and Ground Water	Free product is currently only mentioned in Rule 09(C)(2)(c). The rule states that "Properties with free product exceed applicable standards for unrestricted potable use of ground water. Ground water at properties with free product must meet applicable standards in accordance with 3745- 300-10 of the Administrative Code". Rule 10 does not provide the applicable standard for free product. It is recommended that the criteria for cleanup of free product be more clearly stated.	Ohio EPA does not agree with this suggested change. Rule 3745-300-10 does not contain any applicable standards. Rules -08 and -09 contain the applicable standards for the VAP, therefore to include applicable standards in rule -10 may confuse the reader rather than clarify the issue.
3745-300-10	Ohio EPA, Division of Drinking and Ground Water	If this above citation remains, then it is suggested that it refer to free product "on" or "floating on the ground water".	Ohio EPA does not agree with this suggested change. The definition for free product in OAC 3745-300-01 addresses the issue of "floating on ground water". This definition was left out of the "Interested Party Review" version of the rule, but it will be added to the final rule. The intent is for VAP's definition to mirror BUSTR's use of the term.
3745-300-10	Ohio EPA,	DDAGW recommends that the following proposed rule change throughout rule 10 "...as determined in accordance with rules 3745-300-07 rules 07, 3745-300-08, and 3745-300-09 of the	Ohio EPA agrees and has made changes in three locations to address this issue: 3745-300-11(A)(2); 3745-300- 07(F)(1)(b); and 3745-300-07(F)(4).
	Drinking and Ground Water	~~Administrative~~ Code this chapter..."), be consistently applied through the chapter (such as, 3745- 300-11(A)(2)).

Division of

Rule	Commenter	Issue	Response
3745-300-	Dan Brown,	This definition currently excludes Villages. There are many urban Villages in the major population	The distinction made between Cities and Villages is based in Article XVIII, Section 1,of the Ohio Constitution. The
10(C)(1)(a)	Partners	centers around Cities (e.g., Newburgh Heights, Cuyahoga Heights, etc.). The concept of an	distinction is that municipal corporations with populations of five thousand or more are cities, and all others are
	Environmental	"Urban Village" needs to be incorporated into this definition. These Villages are unfairly at a	villages. Adding a new concept or definition of an "Urban Village" is not likely to be found to be acceptable
		disadvantage to utilize the USD. As an example, the buffer zone of the Cleveland USD extends	because it could be found to run counter to the Ohio Constitution.
		into Newburgh Heights, but the Village of Newburgh Heights cannot obtain a USD fro Property in
		their Village. Please find a way to address this issue by adding Villages into the definition.
		Maybe it would be Villages located wholly within the boundaries of a County with a population
		exceeding some # (just an idea).
3745-300-	Ohio EPA,	The font style in the redline strikeout version needs to be corrected. The style should be	Ohio EPA will correct these format and font errors.
10(C)(3)	Division of	consistent with new language.
	Drinking and
	Ground Water
3745-300-	Ohio EPA,	Font attributes in the redline/strikeout version need to be corrected in 10(E)(2)(a)(iv)(a),	Ohio EPA will correct these format and font errors.
10(E)(2)	Division of	10(E)(2)(b)(iii)(a), 10(E)(2)(c)(iv)(a), etc. There is language in the rule that was moved into
	Drinking and	comment. The moved language was not struck out of the redline/strikeout version.
	Ground Water
3745-300- 10(E)(2)(ix)	Ohio EPA, Division of Drinking and Ground Water	Rule 3745-300-(10)(E)(2)(ix) should reference (E)(2)(a)(v)(d) to (E)(2)(a)(viii) . Currently the citation includes information the volunteer needs to submit prior to issuing the NFA letter. The citation should include only the items necessary to be in the O & M plan. (Proposed rule language: "The applicable requirements contained in paragraphs (E)(2)(a)(v)(d) to (E)(2)(a)(viii) of this rule" (page 20 of the Word document.). This rule reference change is also needed for the following rules: OAC 3745-300-10(E)(2)(c)(x) should reference (E)(2)(c)(v)(d) to E)(2)(c)(viii ix); OAC 3745-300-10(E)(3)(a)(ix) should reference (E)(3)(a)(v)(d) to (E)(2)(c)(viii); OAC 3745-300- 10(E)(3)(c)(x) should reference (E)(3)(c)(v)(d) to (E)(2)(c)(viii ix)	Ohio EPA agrees that the citations could be written more accurately. Modifications to the citations have been made to the rule to address this comment.
3745-300- 11(A)(4)(b)(iv)	Ohio EPA, Northeast District Office/DERR	Interim Measures appear to be very limited in scope under this section. Should this be expanded to address any potential interim measure (e.g. interim work plans as presumptive remedies during a lengthy VAP process)? This section does not appear to include this option. An (a) and (b) may need to be added to address the potential for an interim measure consistent with a temporary remedy meeting items under the O&M plan or other work plan or program (e.g. DSW permit).	Interim measures were added to the rule to cover the time period after issuance of the NFA letter until the permanent remedy is completed. Increasing the time period to before issuance of the NFA letter is not recommended by Ohio EPA because of the VAP statutory requirements. See division (A)(6) of section 3746.10 of the Revised Code.
3745-300-	Ohio EPA,	See the above comment. This section should be expanded to include references to remedial	Interim measures were added to the rule to cover the time period after issuance of the NFA letter until the
11(C)(6)	Northeast	activities as presumptive remedies during a VAP action. (Example - RBW in Portage county	permanent remedy is completed. Increasing the time period to before issuance of the NFA letter is not
	District	under MOA).	recommended by Ohio EPA because of the VAP statutory requirements.
	Office/DERR	under MOA).
3745-300- 11(C)(6)(a)(i -iii)	Dan Brown, Partners Environmental	To be consistent with other changes, this appears to be better served as a TDC.	Ohio EPA prefers to retain the noted rule language. This language was moved from the definitions rule. It is not new rule language. This language helps to clarify what interim measures are and this type of rule language is consistent with language in other parts of the VAP rules.
3745-300-	Ohio EPA,	Paragraph (b) needs to be expanded to include that risk mitigation measures are necessary when	Ohio EPA agrees and the rule language has been modified.
11(C)(7)	Division of	excavation or construction activities breach contaminated ground water zones or when pumping
	Drinking and	and disposal of contaminated ground water is necessary. Currently, the rule only addresses
	Ground Water	breaching contaminated soils. Workers should also be protected from exposures to contaminated
		ground water. If dewatering is needed, the risk mitigation measure needs to address how this
		water will be handled.
3745-300-	Dan Brown,	The word "only" seems too restrictive. There are other uses of risk mitigation measures. As an	Ohio EPA disagrees with this suggested revision. By definition risk mitigation plans are limited to construction and
11(C)(7)(a)	Partners	example, you could have a RMP to prevent access to a building, until a subslab ventilation	excavation activities only. Broadening the definition has not been discussed and could result in unintended
	Environmental	system is installed. The measures would apply to any person going into that building, not just a	consequences. In your example, restricting access would be considered an engineering control implemented as
	Environmental	worker.	an interim measure.

Rule	Commenter	Issue	Response
3745-300- 11(C)(7)(a)	Ohio EPA, Northeast District Office/DERR	A suggested wording change from "during construction and excavation activities" to "as a temporary measure during a VAP action and not as a final remedy".	By definition risk mitigation plans are limited to construction and excavation activities only. Broadening the definition has not been discussed with the VAP Multidisciplinary Board or other VAP interested parties and could result in unintended consequences.
3745-300-	Vlad Cica and	1. I understand the desire to further document compliance with a direct-contact applicable	The recommendation for an elevation survey came from Workgroup 3 and of the VAP Multidisciplinary Board
11(D)(1)(c) and	Dan Tjoelker,	standard. But, when this survey is submitted as part of the NFA, what are we going to review? If	(MDB) and the MDB agreed to the rule change. Many of the issues brought up in these comments were
3745-300-	Ohio EPA, SABR	a contractor is moving dirt on a site, particularly if there is a thickness specification, they are	considered during this process. The purpose of the elevation survey is to establish a baseline for the point of
11(E)(1)(c)		already doing some type of surveying. Usually, the survey doesn't meet the strict requirements of	compliance (POC) for the direct-contact with soil so that current and future property owners can rely upon it to
		a property survey. But, the information is valid nevertheless, and actually probably more	verify and maintain the required POC. The POC for direct-contact with soil and its verification and maintenance
		desirable. As an engineer who has reviewed construction drawings for landfill liners and caps	was a significant issue discussed by the MDB and workgroup 3. The requirement for an elevation survey was one
		which have very strict thickness requirements, we never looked at topographic maps for	of several solutions meant to address this bigger issue. Also as a matter of clarification, the intent is not for the
		determining thickness. We looked at the field data points. The topographic maps are something	elevation survey to be used as a check on the thickness of the soil above the POC. The thickness of soil meeting
		that the computer spits out. They are great for determining general slopes and drainage patterns,	applicable standards will be determined by methods that have always been used by CPs and the agency. This will
		but no so much for determining thicknesses.	not change as a result of the elevation survey requirement.
		2. How is the agency going to monitor compliance? You are asking that a PS do the work. Are	Finally, the elevation surveys will be evaluated by agency staff the same as it currently evaluates property
		we going to have a PS review the survey? Do we have registered surveyors on staff? Do we	boundary surveys and other types of surveys required by VAP rules. There is no need to have registered
		have the necessary equipment to perform an accurate survey? If not, are we going to contract	surveyors on staff. However, several good points have been brought up by these comments such as, clarifying the
		out that work, and who is going to pay for that? Are we going to review the survey once, or will	intent of the survey and clarifying when a survey is required; the concern about data points being more useful than
		we be resurveying the IA's during the audit? 3. We have a few very large VAP projects with IA's	contours; and whether a professional surveyor should always be required to do the survey. As a result, changes
		that are near 100 acres. A topographic survey, as described in the proposed rule, would run in	have been made to address some of these concerns and incorporated into the rule revisions.
		the tens of thousands of dollars. Based on the recent "VAP CP Survey," a common complaint of
		the VAP is the cost. Do we want to encourage or discourage volunteers from participating openly
		in the VAP? Furthermore, for Clean Ohio Fund projects, public moneys will most likely be used to
		cover these additional costs. Have we performed any type of cost/benefit analysis regarding this
		new requirement?
		4. Typically, during construction activities that include cutting or filling, contractors use grade
		stakes so they can take data points in generally the same area. However, once the construction
		is complete, those grade stakes disappear. If, at some point in the future, either we or a contract
		surveyor perform a survey, it will be difficult to match the survey locations. 5. For cover/caps that
		are placed, a contractor usually performs some type of before and after survey to determine
		thickness. However, for caps/cover soils that are in-place, there is no real opportunity to perform
		a "before" survey. Are we going to require additional soil borings to accurately determine the
		depth of clean cover and depth of contamination? Are we going to require incremental sampling
		of the soil column at the 0.1 foot increment, because that is typically the desired precision for soil
		work? 6. What do we do if a reviewer finds discrepancies in the survey or believes that
		topographic map indicates that the soil cap/cover is less than the POC?
3745-300- 11(E)(1)(c)(iii)	Dan Brown, Partners Environmental	In the second sentence add the word "only" after the word "required". The word "election" in line 7 should be "elevation".	Ohio EPA will correct these typographic errors.
3745-300-	Martin Smith,	Many of the mapping requires are redundant or would be useful to require in either the Phase I or	The agency agrees that some mapping requirements are redundant or it would make sense to relocate them. The
13(E)(2)	Ohio EPA, VAP	Phase II reports. We may want to consider relocating some of these requirements and/or getting	agency will evaluate the rule requirements and make any appropriate changes.
13(E)(2)	Ohio EPA, VAP	rid of the redundancy.
3745-300-13(H)	Amy Yersavich, Ohio EPA, VAP	The new rule paragraph (H) of rule 3745-300-13 is somewhat confusing. The idea it is trying to convey, which is how to go about recording institutional controls for NFAs that are submitted for CNSs versus those NFAs that are not submitted for CNSs, would be better communicated to CPs and volunteers via a TDC or guidance that could provide the needed detail to the reader.	The suggested paragraph deletion will be made to this rule. A TDC will be prepared detailing the difference between the requirements for recording institutional controls when an NFA is submitted for a CNS and when an NFA is not submitted for a CNS.

Rule

Commenter

Issue

Response

3745-300-

13(N)(7)

Amy Yersavich,

Ohio EPA, VAP

Regarding the two comments listed after paragraph (N)(7), shouldn't these be actual rule language instead?

The language contained in this comment is actually a rule requirement and will be revised to be actual rule language.

general

Earl Rothfuss, Michael Baker Corp.

Addition of a table of contents, at least to the on-line version. I work in several states that provide TOCs for administrative rules, and they are very helpful.

Ohio EPA agrees that a table of contents (TOC) for the VAP rules would be most helpful. Although a TOC is not included in official rules adopted and published by the State of Ohio's Legislative Service Commission, Ohio EPA will make every effort to create a TOC for the VAP rules and publish it on our Web site after the revisions are final.

Visit the Official Version

Document Information

File Date:: 2009-01-09
CSI:: Yes
Rule File:: 3745-300-09_PH_RF_N_RU_20090109_1404.pdf
RSFA File:: 3745-300-09_PH_RF_N_RS_20090109_1404.pdf
Related Chapter/Rule NO.: (1): Ill. Adm. Code 3745-300-09. Property-specific risk assessment procedures