Chapter 3746. VOLUNTARY ACTION PROGRAM
As used in this chapter:
(A) |
"Activity and use limitations" has the same
meaning as in section
5301.80 of the Revised Code.
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(B) |
"Affiliated" means under
common ownership or control. |
(C) |
"Applicable standards," unless the context indicates otherwise, means standards
established in or pursuant to sections
3746.05,
3746.06, and
3746.07 of the Revised Code, in or
pursuant to rules adopted under division (B)(1) or (2) of section
3746.04 of the Revised Code,
pursuant to rules adopted under division (B)(12)(b) of section
3746.04 of the Revised Code, or
alternative standards and terms and conditions set forth in a variance issued
under section
3746.09 of the Revised Code, as
applicable. |
(D) |
"Background
level" means the 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. "Background level" includes
naturally occurring substances. |
(E) |
"Certified laboratory" means a laboratory
certified by the director of environmental protection pursuant to rules adopted
under division (B)(6) of section
3746.04 of the Revised Code, or
deemed to be certified under division (E) of section
3746.07 of the Revised Code, to
perform analyses in connection with voluntary actions. |
(F) |
"Certified professional" means a person certified
by the director pursuant to rules adopted under division (B)(5) of section
3746.04 of the Revised Code, or
deemed to be certified under division (D) of section
3746.07 of the Revised Code, to
issue no further action letters under section
3746.11 of the Revised Code.
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(G) |
"Covenant not to sue" means a
release from liability that is issued by the director under section
3746.12 of the Revised Code.
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(H) |
"Environmental covenant" has
the same meaning as in section
5301.80 of the Revised Code.
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(I) |
"Hazardous substance"
includes all of the following:
(1) |
Any
substance identified or listed in rules adopted under division (B)(1)(c) of
section 3750.02 of the Revised Code;
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(2) |
Any product registered as a
pesticide under section
921.02 of the Revised Code when the
product is used in a manner inconsistent with its required labeling; |
(3) |
Any product formerly registered as a
pesticide under that section for which the registration was suspended or
canceled under section
921.05 of the Revised Code;
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(4) |
Any mixture of a substance
described in divisions (I)(1) to (3) of this section with a radioactive
material. |
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(J) |
"Owner or
operator" includes both of the following:
(1) |
Any person owning or holding a legal, equitable, or possessory interest in or
having responsibility for the daily activities on a property; |
(2) |
In the case of property title or control
of which was conveyed due to bankruptcy, foreclosure, tax delinquency,
abandonment, or similar means to this state or a political subdivision of this
state, any person who owned, operated, or otherwise controlled activities
occurring on the property before the conveyance. |
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(K) |
"Person" means any person as defined in section
1.59 of the
Revised Code and also includes this state, any political subdivision of this
state, any other body of this state or of a political subdivision of this
state, the board of directors of a nonprofit corporation governing a special
improvement district created under Chapter 1710. of the Revised Code, and the
United States and any agency or instrumentality thereof. |
(L) |
"Petroleum" means oil or petroleum of any kind and
in any form, including, without limitation, crude oil or any fraction thereof,
petroleum, gasoline, kerosene, fuel oil, oil sludge, oil refuse, used oil,
substances or additives utilized in the refining or blending of crude petroleum
or petroleum stock, natural gas, natural gas liquids, liquefied natural gas,
synthetic gas usable for fuel, and mixtures of natural gas and synthetic gas.
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(M) |
"Property," except for the
purposes of sections
3746.02,
3746.26, and
3746.27 of the Revised Code, means
any parcel of real property, or portion thereof, and any improvements thereto,
the limits of which have been described in writing by the owner of record or a
legally appointed representative of the owner and that is or has been the
subject of a voluntary action under this chapter and rules adopted under it.
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(N) |
"Radioactive material" means
a substance that spontaneously emits ionizing radiation. |
(O) |
"Related" means the persons are related by
consanguinity or marriage. |
(P) |
"Release" means any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, migrating, dumping, or disposing of
any hazardous substance or petroleum into the environment, including, without
limitation, the abandonment or discarding of barrels, containers, or any other
closed receptacle containing any hazardous substance, petroleum, or pollutant
or contaminant. "Release" does not include any of the following:
(1) |
Any release that results solely in the
exposure of individuals to hazardous substances or petroleum in the workplace
with respect to which those individuals may assert a claim against their
employer and that is regulated under the "Occupational Health and Safety Act of
1970," 84 Stat. 1590, 29 U.S.C.A. 651, as amended, and regulations
adopted under that act, or under Chapter 4167. of the Revised Code and rules
adopted under it; |
(2) |
Emissions
from the engine exhaust of a motor vehicle, rolling stock, aircraft, vessel, or
pipeline pumping station engine; |
(3) |
Any release of a source, byproduct, or
special nuclear material from a nuclear incident, as "source material,"
"byproduct material," "special nuclear material," and "nuclear incident" are
defined in the "Atomic Energy Act of 1954," 68 Stat. 919,
42 U.S.C.A. 2011, as amended, if the release is subject
to financial protection requirements under section 170 of that act unless any
such material is mixed with a hazardous substance or petroleum; |
(4) |
Any federally permitted release as
defined in section 101(10) of the "Comprehensive Environmental Response,
Compensation, and Liability Act of 1980," 94 Stat. 3300,
42 U.S.C.A. 9601, as amended; |
(5) |
The normal application of a fertilizer
material that is intended to improve the quality or quantity of plant growth.
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(Q) |
"Remedy" or
"remedial activities" means actions that are taken at a property to treat,
remove, transport for treatment or disposal, dispose of, contain, or control
hazardous substances or petroleum, are protective of public health and safety
and the environment, and are consistent with a permanent remedy, including,
without limitation, excavation, treatment, off-site disposal, the use of
engineering or institutional controls or activity and use limitations, the
issuance and implementation of a consolidated standards permit under section
3746.15 of the Revised Code, and
the entering into and implementation of an operation and maintenance agreement
pursuant to section
3746.12 of the Revised Code.
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(R) |
"Voluntary action" means a
series of measures that may be undertaken to identify and address potential
sources of contamination of property by hazardous substances or petroleum and
to establish that the property complies with applicable standards. "Voluntary
action" may include, without limitation, a phase I property assessment
conducted in accordance with rules adopted under division (B)(3) of section
3746.04 of the Revised Code or
division (B) of section
3746.07 of the Revised Code, as
appropriate, a phase II property assessment conducted in accordance with rules
adopted under division (B)(4) of section
3746.04 of the Revised Code or
division (C) of section
3746.07 of the Revised Code, as
appropriate, a sampling plan, a remedial plan, or remedial activities followed
by the issuance of a no further action letter under section
3746.11 of the Revised Code
indicating that the property meets applicable standards upon demonstration by
the person undertaking the measures either that there is no information
indicating that there has been a release of hazardous substances or petroleum
at or upon the property or that there has been a release of hazardous
substances or petroleum at or upon the property and that applicable standards
were not exceeded or have been or will be achieved in accordance with this
chapter and rules adopted under it. |
Effective Date:
08-22-1996;
12-30-2004.
(A) |
Nothing in
this chapter applies to any of the following:
(1) |
Property for which a voluntary action under this chapter is precluded by
federal law or regulations adopted under federal law, including, without
limitation, any of the following federal laws or regulations adopted
thereunder:
(a) |
The "Federal
Water Pollution Control Act Amendments of 1972," 86 Stat. 886,
33 U.S.C.A. 1251, as amended; |
(b) |
The
"Resource Conservation and Recovery Act of 1976," 90 Stat. 2806,
42 U.S.C.A. 6921, as amended; |
(c) |
The
"Toxic Substances Control Act," 90 Stat. 2003 (1976),
15 U.S.C.A. 2601, as amended; |
(d) |
The
"Comprehensive Environmental Response, Compensation, and Liability Act of
1980," 94 Stat. 2779,
42 U.S.C.A. 9601, as amended; |
(e) |
The
"Safe Drinking Water Act," 88 Stat. 1661 (1974),
42 U.S.C.A. 300 (f), as amended. |
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(2) |
Those
portions of property where closure of a hazardous waste facility or solid waste
facility is required under Chapter 3734. of the Revised Code or rules adopted
under it; |
(3) |
Except as
provided in division (A)(3) of section
3737.88
of the Revised Code, properties that are subject to rules adopted by the fire
marshal under Chapter 3737. of the Revised Code pertaining to corrective
actions as defined in section
3737.87
of the Revised Code; |
(4) |
Property
that is subject to Chapter 1509. of the Revised Code; |
(5) |
Any
other property if the director of environmental protection has issued a letter
notifying the owner or operator of the property that the director will issue an
enforcement order under Chapter 3704., 3734., or 6111. of the Revised Code, a
release or threatened release of a hazardous substance or petroleum from or at
the property poses a substantial threat to public health or safety or the
environment, and either of the following applies:
(a) |
The person subject to the letter does not
present sufficient evidence to the director that the person has entered into
the voluntary action program under this chapter and is proceeding expeditiously
to address that threat. |
(b) |
The person cannot demonstrate the person is a bona
fide prospective purchaser under section 3746.122 of the Revised Code. For the purposes of this division, the evidence
constituting sufficient evidence of entry into the voluntary action program
under this chapter shall be defined by the director by rules adopted under
section
3746.04
of the Revised Code.
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(B) |
The
application of any provision of division (A) of this section to a portion of
property does not preclude participation in the voluntary action program under
this chapter in connection with other portions of the property where those
provisions do not apply. |
(C) |
As
used in this section, "property" means any parcel of real property, or portion
thereof, and any improvements thereto. |
Amended by
133rd General Assembly File No. 91, HB 168, §1,
eff. 9/15/2020.
Amended by
129th General AssemblyFile No.115, SB 294,
§1, eff.
9/5/2012.
Amended by
129th General AssemblyFile No.28, HB 153,
§101.01, eff.
9/29/2011.
Effective Date: 09-28-1994
.
Repealed by
129th General AssemblyFile No.39, SB 171,
§2, eff.
6/30/2011.
Within one year after
September 28, 1994, the director of environmental protection, in accordance
with Chapter 119. of the Revised Code, shall adopt, and subsequently may amend,
suspend, or rescind, rules that do both of the following:
(A) |
Revise the rules adopted under Chapters 3704., 3714., 3734., 6109., and 6111.
of the Revised Code to incorporate the provisions necessary to conform those
rules to the requirements of this chapter. The amended rules adopted under this
division also shall establish response times for all submittals to the
environmental protection agency required under this chapter or rules adopted
under it. |
(B) |
Establish requirements and procedures that are
reasonably necessary for the implementation and administration of this chapter,
including, without limitation, all of the following:
(1) |
Appropriate generic numerical clean-up standards for the treatment or removal
of soils, sediments, and water media for hazardous substances and petroleum.
The rules shall establish separate generic numerical clean-up standards based
upon the intended use of properties after the completion of voluntary actions,
including industrial, commercial, and residential uses and such other
categories of land use as the director considers to be appropriate. The generic
numerical clean-up standards established for each category of land use shall be
the concentration of each contaminant that may be present on a property that
shall ensure protection of public health and safety and the environment for the
reasonable exposure for that category of land use. When developing the
standards, the director shall consider such factors as all of the following:
(a) |
Scientific information, including, without limitation, toxicological
information and realistic assumptions regarding human and environmental
exposure to hazardous substances or petroleum; |
(c) |
Human activity
patterns; |
(d) |
Current
statistical techniques; |
(e) |
For petroleum
at industrial property, alternatives to the use of total petroleum
hydrocarbons. The generic numerical
clean-up standards established in the rules adopted under division (B)(1) of
this section shall be consistent with and equivalent in scope, content, and
coverage to any applicable standard established by federal environmental laws
and regulations adopted under them, including, without limitation, the "Federal
Water Pollution Control Act Amendments of 1972," 86 Stat. 886, 33 U.S.C.A.
1251, as amended; the "Resource Conservation and Recovery Act of 1976," 90
Stat. 2806, 42 U.S.C.A. 6921, as amended; the "Toxic Substances Control Act,"
90 Stat. 2003 (1976), 15 U.S.C.A. 2601, as amended; the "Comprehensive
Environmental Response, Compensation, and Liability Act of 1980," 94 Stat.
2779, 42 U.S.C.A. 9601, as amended; and the "Safe Drinking Water Act," 88 Stat.
1660 (1974), 42 U.S.C.A. 300f, as amended. In order for the rules
adopted under division (B)(1) of this section to require that any such federal
environmental standard apply to a property, the property shall meet the
requirements of the particular federal statute or regulation involved in the
manner specified by the statute or regulation. The generic numerical
clean-up standards for petroleum at commercial or residential property shall be
the standards established in rules adopted under division (B) of section
3737.882 of the Revised Code.
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(2) |
(a) |
Procedures for performing property-specific risk assessments that would be
performed at a property to demonstrate that the remedy evaluated in a risk
assessment results in protection of public health and safety and the
environment instead of complying with the generic numerical clean-up standards
established in the rules adopted under division (B)(1) of this section. The
risk assessment procedures shall describe a methodology to establish, on a
property-specific basis, allowable levels of contamination to remain at a
property to ensure protection of public health and safety and the environment
on the property and off the property when the contamination is emanating off
the property, taking into account all of the following:
(i) |
The
implementation of treatment, storage, or disposal, or a combination thereof, of
hazardous substances or petroleum; |
(ii) |
The
existence of institutional controls or activity and use limitations that
eliminate or mitigate exposure to hazardous substances or petroleum through the
restriction of access to hazardous substances or petroleum; |
(iii) |
The
existence of engineering controls that eliminate or mitigate exposure to
hazardous substances or petroleum through containment of, control of, or
restrictions of access to hazardous substances or petroleum, including, without
limitation, fences, cap systems, cover systems, and
landscaping. |
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(b) |
The risk
assessment procedures and levels of acceptable risk set forth in the rules
adopted under division (B)(2) of this section shall be based upon all of the
following:
(i) |
Scientific
information, including, without limitation, toxicological information and
actual or proposed human and environmental exposure; |
(ii) |
Locational and climatic factors; |
(iii) |
Surrounding land use and human activities; |
(iv) |
Differing levels of remediation that may be required when an existing land use
is continued compared to when a different land use follows the
remediation. |
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(c) |
Any standards
established pursuant to rules adopted under division (B)(2) of this section
shall be no more stringent than standards established under the environmental
statutes of this state and rules adopted under them for the same contaminant in
the same environmental medium that are in effect at the time the risk
assessment is conducted. |
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(3) |
Minimum standards for phase I property assessments. The standards shall specify
the information needed to demonstrate that there is no reason to believe that
contamination exists on a property. The rules adopted under division (B)(3) of
this section, at a minimum, shall require that a phase I property assessment
include all of the following:
(a) |
A review and
analysis of deeds, mortgages, easements of record, and similar documents
relating to the chain of title to the property that are publicly available or
that are known to and reasonably available to the owner or operator; |
(b) |
A
review and analysis of any previous environmental assessments, property
assessments, environmental studies, or geologic studies of the property and any
land within two thousand feet of the boundaries of the property that are
publicly available or that are known to and reasonably available to the owner
or operator; |
(c) |
A review of
current and past environmental compliance histories of persons who owned or
operated the property; |
(d) |
A review of
aerial photographs of the property that indicate prior uses of the
property; |
(e) |
Interviews
with managers of activities conducted at the property who have knowledge of
environmental conditions at the property; |
(f) |
Conducting an inspection of the property consisting of a walkover; |
(g) |
Identifying the current and past uses of the property, adjoining tracts of
land, and the area surrounding the property, including, without limitation,
interviews with persons who reside or have resided, or who are or were
employed, within the area surrounding the property regarding the current and
past uses of the property and adjacent tracts of land. The rules adopted under
division (B)(3) of this section shall establish criteria to determine when a
phase II property assessment shall be conducted when a phase I property
assessment reveals facts that establish a reason to believe that hazardous
substances or petroleum have been treated, stored, managed, or disposed of on
the property if the person undertaking the phase I property assessment wishes
to obtain a covenant not to sue under section 3746.12 of the Revised
Code.
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(4) |
Minimum
standards for phase II property assessments. The standards shall specify the
information needed to demonstrate that any contamination present at the
property does not exceed applicable standards or that the remedial activities
conducted at the property have achieved compliance with applicable standards.
The rules adopted under division (B)(4) of this section, at a minimum, shall
require that a phase II property assessment include all of the following:
(a) |
A
review and analysis of all documentation prepared in connection with a phase I
property assessment conducted within the one hundred eighty days before the
phase II property assessment begins. The rules adopted under division (B)(4)(a)
of this section shall require that if a period of more than one hundred eighty
days has passed between the time that the phase I assessment of the property
was completed and the phase II assessment begins, the phase II assessment shall
include a reasonable inquiry into the change in the environmental condition of
the property during the intervening period. |
(b) |
Quality assurance objectives for measurements taken in connection with a phase
II assessment; |
(c) |
Sampling
procedures to ensure the representative sampling of potentially contaminated
environmental media; |
(d) |
Quality
assurance and quality control requirements for samples collected in connection
with phase II assessments; |
(e) |
Analytical and data assessment procedures; |
(f) |
Data
objectives to ensure that samples collected in connection with phase II
assessments are biased toward areas where information indicates that
contamination by hazardous substances or petroleum is likely to
exist. |
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(5) |
Standards
governing the conduct of certified professionals, criteria and procedures for
the certification of professionals to issue no further action letters under
section 3746.11 of the Revised Code, and criteria for the suspension and
revocation of those certifications. The director shall take an action regarding
a certification as a final action. The issuance, denial, renewal, suspension,
and revocation of those certifications are subject to Chapter 3745. of the
Revised Code, except that, in lieu of publishing an action regarding a
certification in a newspaper of general circulation as required in section
3745.07 of the Revised Code, such an action shall be published on the
environmental protection agency's web site and in the agency's weekly review
not later than fifteen days after the date of the issuance, denial, renewal,
suspension, or revocation of the certification and not later than thirty days
before a hearing or public meeting concerning the action. The rules adopted under
division (B)(5) of this section shall do all of the following:
(a) |
Provide for the certification of environmental professionals to issue no
further action letters pertaining to investigations and remedies in accordance
with the criteria and procedures set forth in the rules. The rules adopted
under division (B)(5)(a) of this section shall do at least all of the
following:
(i) |
Authorize the
director to consider such factors as an environmental professional's previous
performance record regarding such investigations and remedies and the
environmental professional's environmental compliance history when determining
whether to certify the environmental professional; |
(ii) |
Ensure that an application for certification is reviewed in a timely
manner; |
(iii) |
Require the
director to certify any environmental professional who the director determines
complies with those criteria; |
(iv) |
Require the director to deny certification for any environmental professional
who does not comply with those criteria. |
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(b) |
Establish an annual fee to be paid by environmental professionals certified
pursuant to the rules adopted under division (B)(5)(a) of this section. The fee
shall be established at an amount calculated to defray the costs to the agency
for the required reviews of the qualifications of environmental professionals
for certification and for the issuance of the certifications. |
(c) |
Develop a schedule for and establish requirements governing the review by the
director of the credentials of environmental professionals who were deemed to
be certified professionals under division (D) of section 3746.07 of the Revised
Code in order to determine if they comply with the criteria established in
rules adopted under division (B)(5) of this section. The rules adopted under
division (B)(5)(c) of this section shall do at least all of the following:
(i) |
Ensure that the review is conducted in a timely fashion; |
(ii) |
Require the director to certify any such environmental professional who the
director determines complies with those criteria; |
(iii) |
Require any such environmental professional initially to pay the fee
established in the rules adopted under division (B)(5)(b) of this section at
the time that the environmental professional is so certified by the
director; |
(iv) |
Establish a
time period within which any such environmental professional who does not
comply with those criteria may obtain the credentials that are necessary for
certification; |
(v) |
Require the
director to deny certification for any such environmental professional who does
not comply with those criteria and who fails to obtain the necessary
credentials within the established time period. |
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(d) |
Require that any information submitted to the director for the purposes of the
rules adopted under division (B)(5)(a) or (c) of this section comply with
division (A) of section 3746.20 of the Revised Code; |
(e) |
Authorize the director to suspend or revoke the certification of an
environmental professional if the director finds that the environmental
professional's performance has resulted in the issuance of no further action
letters under section 3746.11 of the Revised Code that are not consistent with
applicable standards or finds that the certified environmental professional has
not substantially complied with section 3746.31 of the Revised Code; |
(f) |
Authorize the director to suspend for a period of not more than five years or
to permanently revoke a certified environmental professional's certification
for any violation of or failure to comply with an ethical standard established
in rules adopted under division (B)(5) of this section; |
(g) |
Require the director to revoke the certification of an environmental
professional if the director finds that the environmental professional
falsified any information on the environmental professional's application for
certification regarding the environmental professional's credentials or
qualifications or any other information generated for the purposes of or use
under this chapter or rules adopted under it; |
(h) |
Require the director permanently to revoke the certification of an
environmental professional who has violated or is violating division (A) of
section 3746.18 of the Revised Code; |
(i) |
Preclude the director from revoking the certification of an environmental
professional who only conducts investigations and remedies at property
contaminated solely with petroleum unless the director first consults with the
director of commerce. |
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(6) |
Criteria and procedures for the certification of laboratories to perform
analyses under this chapter and rules adopted under it. The issuance, denial,
suspension, and revocation of those certifications are subject to Chapter 3745.
of the Revised Code, and the director of environmental protection shall take
any such action regarding a certification as a final action. The rules adopted under
division (B)(6) of this section shall do all of the following:
(a) |
Provide for the certification to perform analyses of laboratories in accordance
with the criteria and procedures established in the rules adopted under
division (B)(6)(a) of this section and establish an annual fee to be paid by
those laboratories. The fee shall be established at an amount calculated to
defray the costs to the agency for the review of the qualifications of those
laboratories for certification and for the issuance of the certifications. The
rules adopted under division (B)(6)(a) of this section may provide for the
certification of those laboratories to perform only particular types or
categories of analyses, specific test parameters or group of test parameters,
or a specific matrix or matrices under this chapter. |
(b) |
Develop a schedule for and establish requirements governing the review by the
director of the operations of laboratories that were deemed to be certified
laboratories under division (E) of section 3746.07 of the Revised Code in order
to determine if they comply with the criteria established in rules adopted
under division (B)(6) of this section. The rules adopted under division
(B)(6)(b) of this section shall do at least all of the following:
(i) |
Ensure that the review is conducted in a timely fashion; |
(ii) |
Require the director to certify any such laboratory that the director
determines complies with those criteria; |
(iii) |
Require any such laboratory initially to pay the fee established in the rules
adopted under division (B)(6)(a) of this section at the time that the
laboratory is so certified by the director; |
(iv) |
Establish a time period within which any such laboratory that does not comply
with those criteria may make changes in its operations necessary for the
performance of analyses under this chapter and rules adopted under it in order
to be certified by the director; |
(v) |
Require the director to deny certification for any such laboratory that does
not comply with those criteria and that fails to make the necessary changes in
its operations within the established time period. |
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(c) |
Require that any information submitted to the director for the purposes of the
rules adopted under division (B)(6)(a) or (b) of this section comply with
division (A) of section 3746.20 of the Revised Code; |
(d) |
Authorize the director to suspend or revoke the certification of a laboratory
if the director finds that the laboratory's performance has resulted in the
issuance of no further action letters under section 3746.11 of the Revised Code
that are not consistent with applicable standards; |
(e) |
Authorize the director to suspend or revoke the certification of a laboratory
if the director finds that the laboratory falsified any information on its
application for certification regarding its credentials or
qualifications; |
(f) |
Require the
director permanently to revoke the certification of a laboratory that has
violated or is violating division (A) of section 3746.18 of the Revised
Code. |
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(7) |
Information to
be included in a no further action letter prepared under section 3746.11 of the
Revised Code, including, without limitation, all of the following:
(a) |
A
summary of the information required to be submitted to the certified
environmental professional preparing the no further action letter under
division (C) of section 3746.10 of the Revised Code; |
(b) |
Notification that a risk assessment was performed in accordance with rules
adopted under division (B)(2) of this section if such an assessment was used in
lieu of generic numerical clean-up standards established in rules adopted under
division (B)(1) of this section; |
(c) |
The
contaminants addressed at the property, if any, their source, if known, and
their levels prior to remediation; |
(d) |
The
identity of any other person who performed work to support the request for the
no further action letter as provided in division (B)(2) of section 3746.10 of
the Revised Code and the nature and scope of the work performed by that
person; |
(e) |
A list of the
data, information, records, and documents relied upon by the certified
environmental professional in preparing the no further action
letter. |
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(8) |
Methods for
determining fees to be paid for the following services provided by the agency
under this chapter and rules adopted under it:
(a) |
Site-
or property-specific technical assistance in developing or implementing plans
in connection with a voluntary action; |
(b) |
Reviewing applications for and issuing consolidated standards permits under
section 3746.15 of the Revised Code and monitoring compliance with those
permits; |
(c) |
Negotiating,
preparing, and entering into agreements necessary for the implementation and
administration of this chapter and rules adopted under it; |
(d) |
Reviewing no further action letters, issuing covenants not to sue, and
monitoring compliance with any terms and conditions of those covenants and with
operation and maintenance agreements entered into pursuant to those covenants,
including, without limitation, conducting audits of properties where voluntary
actions are being or were conducted under this chapter and rules adopted under
it. The fees established
pursuant to the rules adopted under division (B)(8) of this section shall be at
a level sufficient to defray the direct and indirect costs incurred by the
agency for the administration and enforcement of this chapter and rules adopted
under it other than the provisions regarding the certification of professionals
and laboratories.
|
|
(9) |
Criteria for selecting the no further action letters issued under section
3746.11 of the Revised Code that will be audited under section 3746.17 of the
Revised Code, and the scope and procedures for conducting those audits. The
rules adopted under division (B)(9) of this section, at a minimum, shall
require the director to establish priorities for auditing no further action
letters to which any of the following applies:
(a) |
The
letter was prepared by an environmental professional who was deemed to be a
certified professional under division (D) of section 3746.07 of the Revised
Code, but who does not comply with the criteria established in rules adopted
under division (B)(5) of this section as determined pursuant to rules adopted
under division (B)(5)(d) of this section; |
(b) |
The
letter was submitted fraudulently; |
(c) |
The
letter was prepared by a certified environmental professional whose
certification subsequently was revoked in accordance with rules adopted under
division (B)(5) of this section, or analyses were performed for the purposes of
the no further action letter by a certified laboratory whose certification
subsequently was revoked in accordance with rules adopted under division (B)(6)
of this section; |
(d) |
A covenant not
to sue that was issued pursuant to the letter was revoked under this
chapter; |
(e) |
The letter was
for a voluntary action that was conducted pursuant to a risk assessment in
accordance with rules adopted under division (B)(2) of this section; |
(f) |
The
letter was for a voluntary action that included as remedial activities
engineering controls or institutional controls or activity and use limitations
authorized under section 3746.05 of the Revised Code. The rules adopted under
division (B)(9) of this section shall provide for random audits of no further
action letters to which the rules adopted under divisions (B)(9)(a) to (f) of
this section do not apply.
|
|
(10) |
A
classification system to characterize ground water according to its capability
to be used for human use and its impact on the environment and a methodology
that shall be used to determine when ground water that has become contaminated
from sources on a property for which a covenant not to sue is requested under
section 3746.11 of the Revised Code shall be remediated to the standards
established in the rules adopted under division (B)(1) or (2) of this section.
(a) |
In
adopting rules under division (B)(10) of this section to characterize ground
water according to its capability for human use, the director shall consider
all of the following:
(i) |
The presence
of legally enforceable, reliable restrictions on the use of ground water,
including, without limitation, local rules or ordinances; |
(ii) |
The
presence of regional commingled contamination from multiple sources that
diminishes the quality of ground water; |
(iii) |
The
natural quality of ground water; |
(iv) |
Regional availability of ground water and reasonable alternative sources of
drinking water; |
(v) |
The
productivity of the aquifer; |
(vi) |
The
presence of restrictions on the use of ground water implemented under this
chapter and rules adopted under it; |
(vii) |
The
existing use of ground water. |
|
(b) |
In
adopting rules under division (B)(10) of this section to characterize ground
water according to its impacts on the environment, the director shall consider
both of the following:
(i) |
The risks
posed to humans, fauna, surface water, sediments, soil, air, and other
resources by the continuing presence of contaminated ground water; |
(ii) |
The
availability and feasibility of technology to remedy ground water
contamination. |
|
|
(11) |
Governing the application for and issuance of variances under section 3746.09
of the Revised Code; |
(12) |
(a) |
In
the case of voluntary actions involving contaminated ground water, specifying
the circumstances under which the generic numerical clean-up standards
established in rules adopted under division (B)(1) of this section and
standards established through a risk assessment conducted pursuant to rules
adopted under division (B)(2) of this section shall be inapplicable to the
remediation of contaminated ground water and under which the standards for
remediating contaminated ground water shall be established on a case-by-case
basis prior to the commencement of the voluntary action pursuant to rules
adopted under division (B)(12)(b) of this section; |
(b) |
Criteria and procedures for the case-by-case establishment of standards for the
remediation of contaminated ground water under circumstances in which the use
of the generic numerical clean-up standards and standards established through a
risk assessment are precluded by the rules adopted under division (B)(12)(a) of
this section. The rules governing the procedures for the case-by-case
development of standards for the remediation of contaminated ground water shall
establish application, public participation, adjudication, and appeals
requirements and procedures that are equivalent to the requirements and
procedures established in section 3746.09 of the Revised Code and rules adopted
under division (B)(11) of this section, except that the procedural rules shall
not require an applicant to make the demonstrations set forth in divisions
(A)(1) to (3) of section 3746.09 of the Revised Code. |
|
(13) |
A
definition of the evidence that constitutes sufficient evidence for the purpose
of division (A)(5) of section 3746.02 of the Revised Code. At least thirty days before
filing the proposed rules required to be adopted under this section with the
secretary of state, director of the legislative service commission, and joint
committee on agency rule review in accordance with divisions (B) and
(C) of
section 119.03 of the Revised Code, the director of environmental protection
shall hold at least one public meeting on the proposed rules in each of the
five districts into which the agency has divided the state for administrative
purposes.
|
|
Amended by
130th General Assembly File No. TBD, SB 3, §1,
eff. 9/17/2014.
Amended by
129th General AssemblyFile No.39, SB 171,
§1, eff.
6/30/2011.
Effective Date:
12-02-1996; 12-30-2004; 09-29-2005
(A) |
A remedy or
remedial activity conducted under this chapter may attain applicable standards
otherwise established in this chapter and rules adopted under it through the
use of institutional controls or activity and use limitations that restrict the
use of a property or through the removal of, treatment of, transportation for
treatment or disposal of, disposal of, or use of engineering controls that
contain or control the release of hazardous substances or petroleum at or from
a property. Any such institutional controls or activity and use limitations
that restrict the use of a property shall ensure that the property is used only
for purposes that comply with the applicable standards established in this
chapter and rules adopted under it pertaining to the intended use of the
property after the completion of the voluntary action, as the intended use is
specified in the documents establishing the institutional controls or activity
and use limitations. |
(B) |
(1) |
If a property is subject to institutional
controls or activity and use limitations and is put to a use that does not
comply with the institutional controls or activity and use limitations
specified in the documents establishing the institutional controls or activity
and use limitations, the director of environmental
protection may issue an order voiding the covenant not to sue issued
under section
3746.12
of the Revised Code for the property in connection with the voluntary action
for which the institutional controls or activity and use limitations were
established . |
(2) |
An order issued by the director under division (B)(1)
of this section is a final action appealable under Chapter 3745. of the Revised
Code. |
|
Amended by
133rd General Assembly File No. 91, HB 168, §1,
eff. 9/15/2020.
Effective Date:
09-28-1994;
12-30-2004.
(A) |
If
applicable standards otherwise established in this chapter and rules adopted
under it establish a contamination level for a hazardous substance or petroleum
that is below the background level of the hazardous substance or petroleum, the
voluntary action conducted at a property is required to achieve only the
background level of the hazardous substance or petroleum, notwithstanding the
contamination level established in the applicable standard. |
(B) |
If the ground water underlying a
property complies with standards for residential use established in or pursuant
to rules adopted under division (B)(1) or (2) of section
3746.04 of the Revised Code, the
remedy or remedial activities undertaken in connection with a voluntary action
to address sources of potential ground water contamination at or upon the
property shall ensure the continued compliance of the ground water underlying
the property with those standards for residential use. |
Effective Date:
09-28-1994.
(A) |
Until such
time as the director of environmental protection adopts rules under divisions
(B)(1), (2), and (10) of section
3746.04 of the Revised Code, the
following standards and requirements shall govern voluntary actions taken under
this chapter:
(1) |
All point source discharges
of pollutants into the waters of the state, as defined in section
6111.01 of the Revised Code, that
occur from or on the property shall comply with the applicable effluent
limitations established pursuant to Chapter 6111. of the Revised Code.
|
(2) |
For hazardous substances having
carcinogenic effects that are present in media other than ground water, the
carcinogenic risk shall be reduced to within the range of one excess cancer in
a population of ten thousand to one excess cancer in a population of one
million. For hazardous substances having noncarcinogenic effects that are
present in media other than ground water, the noncarcinogenic risk shall be
reduced to a level not exceeding a hazard index of one. In either case, the
determination of the appropriate risk level shall take into account all of the
following:
(a) |
Actual human exposures to the
hazardous substance contaminating the property of persons on and off the
property due to the presence of the hazardous substance at the property and its
migration off the property; |
(b) |
The
current and proposed uses of the property; |
(c) |
The uses of the surrounding land. For the purposes of division (A)(2) of this section,
"carcinogenic effects," "carcinogenic risk," "noncarcinogenic effects,"
"noncarcinogenic risk," and "hazard index of one" have the same meanings as in
the "risk assessment guidance for superfund, volume I health evaluation manual
(part A), interim final," (EPA/540/1-89/002, December, 1989).
|
|
(3) |
A covenant not
to sue shall not be issued under section
3746.12 of the Revised Code for
property if ground water underlying the property, emanating from the property,
or both is contaminated. |
(4) |
For
releases of petroleum that are not subject to the corrective action
requirements established in rules adopted under division (B) of section
3737.882 of the Revised Code, the
voluntary action shall reduce the level of petroleum hydrocarbons and petroleum
product constituents to levels at or below the action levels for which a
corrective action is required by those rules. |
|
(B) |
Until such time as the director adopts rules
establishing standards governing phase I property assessments under division
(B)(3) of section
3746.04 of the Revised Code,
standard E 1527 practice for environmental site assessments: phase I
environmental site assessment process by the American society for testing and
materials shall govern phase I property assessments conducted for the purposes
of this chapter. If a phase I property assessment conducted under this division
reveals facts that establish a reason to believe that hazardous substances or
petroleum have been treated, stored, managed, or disposed of on the property,
and if the person undertaking the phase I property assessment wishes to obtain
a covenant not to sue under section
3746.12 of the Revised Code, a
phase II property assessment shall be conducted in accordance with division (C)
of this section or with rules adopted under division (B)(4) of section
3746.04 of the Revised Code, as
appropriate. |
(C) |
Until such time
as the director adopts rules establishing standards governing phase II property
assessments under division (B)(4) of section
3746.04 of the Revised Code, a
phase II property assessment shall demonstrate that any contamination present
at the property does not exceed applicable standards or that the remedial
activities conducted at the property have achieved compliance with applicable
standards. A phase II property assessment conducted pursuant to this division
shall consist of an evaluation of the current environmental conditions of the
property, including, at a minimum, all of the components identified in
divisions (B)(4)(a) to (f) of section
3746.04 of the Revised Code and
the identification through sampling of all sources of contamination on or at
the property. |
(D) |
Until such time
as the rules adopted by the director under division (B)(5) of section
3746.04 of the Revised Code
require the certification of professionals to issue no further action letters
under section
3746.11 of the Revised Code, a
person who, on the effective date of this section, meets any of the following
is hereby deemed to be a certified professional for the purpose of issuing no
further action letters under that section pertaining to all investigations and
remedies:
(1) |
A person who is a professional
engineer registered under Chapter 4733. of the Revised Code, who has at least
five years' practical experience in the investigation or remediation of
releases of hazardous substances or petroleum into the environment, and who has
at least three years' experience in directly supervising projects that
remediated releases of hazardous substances or petroleum into the environment;
|
(2) |
A person who has been duly
certified as a professional geologist by the American institute of professional
geologists, who has at least five years' practical experience in the
investigation or remediation of releases of hazardous substances or petroleum
into the environment, and who has at least three years' experience in directly
supervising projects that remediated releases of hazardous substances or
petroleum into the environment; |
(3) |
A person who has been duly certified as an industrial hygienist by the American
board of industrial hygiene, who has at least five years' practical experience
in the investigation or remediation of releases of hazardous substances or
petroleum, and who has at least three years' experience in directly supervising
projects that remediated releases of hazardous substances or petroleum into the
environment; |
(4) |
A person holding
at least a master's degree in toxicology or a related field from an accredited
university, who has at least five years' practical experience in evaluating the
human health risk and environmental risk associated with releases of hazardous
substances or petroleum into the environment, and who has at least three years'
experience in directly supervising projects that remediated releases of
hazardous substances or petroleum into the environment. Prior to his first submission of a no further action letter to
the director under section
3746.11 of the Revised Code, any
such person shall submit to the director a copy of his credentials, a certified
statement of his relevant practical experience, a statement indicating that he
has not been disqualified by an agency in this state or another state from
performing environmental work, and a fee of two thousand dollars. Upon payment
of that fee, the person need not pay another fee to the director for the
purposes of this chapter until he is certified by the director pursuant to the
rules adopted under division (B)(5)(c) of section
3746.04 of the Revised Code.
|
|
(E) |
Until the
rules adopted by the director under division (B)(6) of section
3746.04 of the Revised Code
require the certification of laboratories to conduct analyses for the purposes
of the voluntary action program under this chapter, laboratories that, on the
effective date of this section, meet either of the following are hereby deemed
to be certified laboratories for the purposes of this chapter:
(1) |
Any laboratory that is participating in
the contract laboratory program of the United States environmental protection
agency and that meets the requirements set forth in the "user's guide to the
contract laboratory program" (1991) of the office of emergency and remedial
response of that agency and the "statement of works for organic and/or
inorganic analyses" of that agency; |
(2) |
Any laboratory approved by the director
under division (C)(6) of section
6109.04 of the Revised Code to
perform analyses of drinking water parameters. Prior to first performing work for the purpose of a voluntary
action under this chapter, any such laboratory shall pay a fee of two thousand
dollars to the director. Upon payment of that fee, the laboratory need not pay
another fee to the director for the purposes of this chapter until it is
certified by the director pursuant to the rules adopted under division
(B)(6)(b) of section
3746.04 of the Revised Code.
|
|
(F) |
Until such
time as the director adopts rules under division (B)(7) of section
3746.04 of the Revised Code, a no
further action letter prepared under section
3746.11 of the Revised Code shall
include the information specified in divisions (B)(7)(a) to (e) of section
3746.04 of the Revised Code.
|
(G) |
Until such time as the
director adopts rules under divisions (B)(5), (6), and (8) of section
3746.04 of the Revised Code, he
shall not accept any no further action letters under section
3746.11 of the Revised Code on and
after the date one year after the effective date of this section and shall
issue not more than two hundred covenants not to sue under section
3746.12 of the Revised Code.
|
(H) |
Until such time as the
director adopts rules under division (B)(8) of section
3746.04 of the Revised Code
establishing methods for determining fees to be paid for services provided by
the environmental protection agency, the director may do both of the following:
(1) |
Establish the fee to be paid for
reviewing an application for and issuing a consolidated standards permit under
section 3746.15 of the Revised Code. Any
such fee shall be established on a case-by-case basis in an amount sufficient
to defray the direct and indirect costs incurred by the agency for reviewing
the application and issuing the permit. |
(2) |
Require any person with whom the director
has entered into an operation and maintenance agreement under division (A)(3)
of section
3746.12 of the Revised Code to pay
the agency for the direct and indirect costs incurred by the agency in
monitoring compliance with the agreement. The director shall negotiate a
schedule with any such person for the payment of those costs. Any fee or payment required under division (H) of this section
is in addition to the fee established under division (C) of section
3746.13 of the Revised Code for
the issuance of a covenant not to sue.
|
|
Effective Date:
09-28-1994.
(A) |
As used in
this section, "certified professional" means a certified professional deemed to
be certified under division (D) of section
3746.07 of the Revised Code.
|
(B) |
A certified professional
shall do all of the following:
(1) |
Protect
the safety, health, and welfare of the public in the performance of
professional duties. If a circumstance arises where the certified professional
faces a situation where the safety, health, or welfare of the public would not
be protected, the certified professional shall do all of the following:
(a) |
Sever the relationship with the certified
professional's employer or client; |
(b) |
Refuse to accept responsibility for the
design, report, or statement involved; |
(c) |
Notify the director of environmental
protection if, in the opinion of the certified professional, the situation is
sufficiently important. |
|
(2) |
Undertake to perform assignments only
when the certified professional or the certified professional's consulting
support is qualified by training and experience in the specific technical
fields involved; |
(3) |
Be completely
objective in any professional report, statement, or testimony. The certified
professional shall include all relevant and pertinent information in the
report, statement, or testimony when the result of an omission would or
reasonably could lead to a fallacious conclusion. |
(4) |
Express an opinion as a technical or
expert witness before any court, commission, or other tribunal only when it is
founded upon adequate knowledge of the facts in issue, upon a background of
technical competence in the subject matter, and upon honest conviction of the
accuracy and propriety of the testimony. |
|
(C) |
A certified professional shall not issue
statements, criticisms, or arguments on matters connected with public policy
that are inspired or paid for by an interested party, unless the certified
professional has prefaced the remarks by explicitly identifying the certified
professional, by disclosing the identity of the parties on whose behalf the
certified professional is speaking, and by revealing the existence of any
pecuniary interest the certified professional may have in the instant matters.
|
(D) |
(1) |
A certified professional shall conscientiously
avoid any conflict of interest with the certified professional's employer or
client. |
(2) |
A certified
professional promptly shall inform the certified professional's employer or
client of any business association, interests, or circumstances that could
influence the certified professional's judgment or the quality of the certified
professional's service to the employer or client. |
(3) |
A certified professional shall not accept
compensation, financial or otherwise, from more than one party for services on
or pertaining to the same project, unless the circumstances are fully disclosed
to, and agreed to, by all interested parties or their duly authorized agents.
|
(4) |
A certified professional
shall not solicit or accept financial or other valuable considerations from
material or equipment suppliers for specifying their products. |
(5) |
A certified professional shall not
solicit or accept gratuities, directly or indirectly, from contractors, their
agents, or other parties dealing directly with the certified professional's
employer or client in connection with the work for which the certified
professional is responsible. |
|
(E) |
(1) |
A certified
professional shall not pay, solicit, or offer, directly or indirectly, any
bribe or commission for professional employment with the exception of payment
of the usual commission for securing salaried positions through licensed
employment agencies. |
(2) |
A
certified professional shall seek professional employment on the basis of
qualification and competence for proper accomplishment of the work. A certified
professional may submit proposed fee information prior to selection to serve as
a certified professional under this chapter and rules adopted under it.
|
(3) |
A certified professional
shall not falsify or permit misrepresentation of the certified professional's
or the certified professional's associates' academic or professional
qualifications. The certified professional shall not misrepresent or exaggerate
the certified professional's degree of responsibility in or for the subject
matter of prior assignments. |
(4) |
Brochures or other presentations incident to the solicitation of employment by
a certified professional shall not misrepresent pertinent facts concerning the
certified professional's employers, employees, associates, or joint ventures,
or the past accomplishments of any of them, with the intent and purpose of
enhancing the certified professional's qualifications for the certified
professional's work. |
|
(F) |
(1) |
A certified
professional shall not sign or seal professional work for which the certified
professional does not have personal professional knowledge and direct
supervisory control and responsibility. |
(2) |
A certified professional shall not knowingly
associate with, or permit the use of the certified professional's own name or
the name of the certified professional's firm in, a business venture by any
person or firm that the certified professional knows, or has reason to believe,
is engaging in business or professional practices of a fraudulent or dishonest
nature. |
(3) |
If a certified
professional has knowledge or reason to believe that another person or firm has
violated any of the provisions of this chapter or any requirement of this
section, the certified professional shall present the information to the
director in writing. |
|
(G) |
The director, in accordance with rules adopted
under section
3746.04 of the Revised Code, may
suspend for a period of not more than five years or permanently revoke a
certified professional's certification for a violation of or failure to comply
with any requirement or obligation set forth in this section. |
Effective Date:
09-28-1994;
09-29-2005.
Effective Date:
12-30-2004.
(A) |
A person
who proposes to enter into or who is participating in the voluntary action
program under this chapter and rules adopted under it, in accordance with this
section and rules adopted under division (B)(11) of section
3746.04 of the Revised Code, may
apply to the director of environmental protection for a variance from
applicable standards otherwise established in this chapter and rules adopted
under it. The application for a variance shall be prepared by a certified
professional. The director shall issue a variance from those applicable
standards only if the application makes all of the following demonstrations to
the director's satisfaction:
(1) |
Either or
both of the following:
(a) |
It is technically
infeasible to comply with the applicable standards otherwise established at the
property named in the application; |
(b) |
The costs of complying with the
applicable standards otherwise established at the property substantially exceed
the economic benefits. |
|
(2) |
The proposed alternative standard or set
of standards and terms and conditions set forth in the application will result
in an improvement of environmental conditions at the property and ensure that
public health and safety will be protected. |
(3) |
The establishment of and compliance with
the alternative standard or set of standards and terms and conditions are
necessary to promote, protect, preserve, or enhance employment opportunities or
the reuse of the property named in the application. A variance issued under this section shall state the specific
standard or standards whose terms are being varied and shall set forth the
specific alternative standard or set of standards and the terms and conditions
imposed on the applicant in their place. A variance issued under this section
shall include only standards and terms and conditions proposed by the applicant
in the application, except that the director may impose any additional or
alternative terms and conditions that the director determines to be necessary
to ensure that public health and safety will be protected. If the director
finds that compliance with any standard or term or condition proposed by the
applicant will not protect public health and safety and that the imposition of
additional or alternative terms and conditions will not ensure that public
health or safety will be protected, the director shall disapprove the
application and shall include in the order of denial the specific findings on
which the denial was based.
|
|
(B) |
Variances shall be issued or denied in accordance
with this section, rules adopted under division (B)(11) of section
3746.04 of the Revised Code, and
Chapter 3745. of the Revised Code. Upon determining that an application for a
variance is complete, the director shall schedule a public meeting on the
application to be held within ninety days after the director determines that
the application is complete in the county in which is located the property to
which the application pertains. |
(C) |
Not less than thirty days before the date
scheduled for the public meeting on an application for a variance, the director
shall publish notice of the public meeting and that the director will receive
written comments on the application for a period of forty-five days commencing
on the date of the publication of the notice. The notice shall contain all of
the following information, at a minimum:
(1) |
The address of the property to which the application pertains; |
(2) |
A brief summary of the alternative
standards and terms and conditions proposed by the applicant; |
(3) |
The date, time, and location of the
public meeting. The notice shall be published in a newspaper of general
circulation in the county in which the property is located and, if the property
is located in close proximity to the boundary of the county with an adjacent
county, as determined by the director, shall be published in a newspaper of
general circulation in the adjacent county. Concurrently with the publication
of the notice of the public meeting, the director shall mail notice of the
application, comment period, and public meeting to the owner of each parcel of
land that is adjacent to the affected property and to the legislative authority
of the municipal corporation or township, and county, in which the affected
property is located. The notices mailed to the adjacent land owners and
legislative authorities shall contain the same information as the published
notice.
|
|
(D) |
At
the public meeting on an application for a variance, the applicant, or a
representative of the applicant who is knowledgeable about the affected
property and the application, shall present information regarding the
application and the basis of the request for the variance and shall respond to
questions from the public regarding the affected property and the application.
A representative of the environmental protection agency who is familiar with
the affected property and the application shall attend the public meeting to
hear the public's comments and to respond to questions from the public
regarding the affected property and the application. A stenographic record of
the proceedings at the public meeting shall be kept and shall be made a part of
the administrative record regarding the application. |
(E) |
Within ninety days after conducting the public
meeting on an application for a variance under division (D) of this section,
the director shall issue a proposed action to the applicant in accordance with
section 3745.07 of the Revised Code that
indicates the director's intent with regard to the issuance or denial of the
application. When considering whether to issue or deny the application or
whether to impose terms and conditions of the variance that are in addition or
alternative to those proposed by the applicant, the director shall consider
comments on the application made by the public at the public meeting and
written comments on the application received from the public. |
Effective Date:
09-28-1994;
12-30-2004;
06-27-2005.
(A) |
Except as
otherwise provided in section
3746.02 of the Revised Code, any
person may undertake a voluntary action under this chapter and rules adopted
under it to identify and address potential sources of contamination by
hazardous substances or petroleum of soil, sediments, surface water, or ground
water on or underlying property and to establish that the property meets
applicable standards. The voluntary action may include any one or more of the
following elements:
(1) |
A phase I property
assessment conducted in accordance with rules adopted under division (B)(3) of
section 3746.04 of the Revised Code or
division (B) of section
3746.07 of the Revised Code, as
appropriate; |
(2) |
A phase II
property assessment conducted in accordance with rules adopted under division
(B)(4) of section
3746.04 of the Revised Code or
division (C) of section
3746.07 of the Revised Code, as
appropriate; |
(6) |
Such other activities as the person
undertaking the voluntary action considers to be necessary or appropriate to
address the contamination. When the person undertaking a voluntary action determines that
the property meets applicable standards, the person may seek a no further
action letter from a certified professional. A no further action letter may be
issued for the property at any stage of the identification of potential
hazardous substance or petroleum contamination or remedial activities after a
phase I or II property assessment has demonstrated that there is no reason to
believe that there has been a release of hazardous substances or petroleum at
or upon the property, that information indicates that there has been a release
of hazardous substances or petroleum at or upon the property, but that the
release is not in excess of applicable standards, or that if there has been
such a release in excess of applicable standards, those standards have been
achieved through remedial activities or will be achieved in accordance with the
timeframes established in an operation and maintenance agreement entered into
under division (A)(3) of section
3746.12 of the Revised Code or in
such an agreement and a consolidated standards permit issued under section
3746.15 of the Revised Code.
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|
(B) |
(1) |
A person who is participating in the voluntary
action program under this chapter and rules adopted under it shall do both of
the following:
(a) |
Utilize the services of a
certified laboratory to perform any analyses that form the basis for the
issuance of a no further action letter for a property and ensure that a
laboratory performs in connection with a voluntary action only those analyses
for which it is certified under rules adopted under division (B)(6) of section
3746.04 of the Revised Code or for
which it is qualified prior to the adoption of those rules; |
(b) |
Utilize the services of a certified
professional to verify that the property and any remedial activities undertaken
at the property in connection with a voluntary action comply with applicable
standards and, if those standards are met, to issue to the person a no further
action letter for the property. For the purposes of such a verification, the
certified professional shall perform and review all work that was conducted to
support the request for the no further action letter or shall ensure that the
work has been performed and reviewed by other persons with expertise and
competence in areas other than those of the certified professional's expertise
and competence as necessary for the issuance of the no further action letter.
|
|
(2) |
No person who is
participating in the voluntary action program shall do any of the following:
(a) |
If the person also is a certified
professional, prepare a no further action letter in connection with a voluntary
action conducted at a property that the certified professional owns or
operates; |
(b) |
Utilize the services
of a certified professional who is employed by, affiliated with, or related to
the participant or who was employed by or affiliated with the participant
during the year preceding the date that the participant entered into the
contract to utilize the services of the certified professional in connection
with the voluntary action; |
(c) |
Utilize the services of a certified laboratory that is owned by or affiliated
with the participant, that is owned by a person related to the participant, or
that was owned by or affiliated with the participant during the year preceding
the date that the participant entered into the contract to utilize the services
of the certified laboratory in connection with the voluntary action, to perform
any analyses that form the basis for the issuance of a no further action letter
in connection with a voluntary action. A covenant not to sue issued under section
3746.12 of the Revised Code to a
person who violated division (B)(2)(a), (b), or (c) of this section with
respect to the no further action letter upon which issuance of the covenant was
based is void. Except as otherwise provided in division (B)(2) of this
section, a person who is participating in the voluntary action program may
utilize an independent contractor to serve as a certified professional or
certified laboratory.
|
|
|
(C) |
In order to obtain a no further action letter, a
person undertaking a voluntary action shall submit to a certified professional
all of the following, as applicable:
(1) |
Information demonstrating that there is no contamination by hazardous
substances or petroleum of soil, sediments, surface water, or ground water on
or underlying the property in concentrations exceeding applicable standards.
The demonstrations shall be based upon the findings of a phase I or phase II
property assessment. |
(2) |
If
remedial activities were conducted in connection with the voluntary action,
data demonstrating that the remedy meets applicable standards or will achieve
applicable standards in accordance with the timeframes established in an
operation and maintenance agreement entered into under division (A)(3) of
section 3746.12 of the Revised Code or in
such an agreement and a consolidated standards permit issued under section
3746.15 of the Revised Code;
|
(3) |
(a) |
If the remedy relies on institutional
controls or restrictions on the use of the property to achieve applicable
standards, a demonstration that the institutional controls or the use
restrictions have been recorded in the office of the county recorder of the
county in which the property is located, or have been entered in the
appropriate register for registered land as defined in section
5309.01 of the Revised Code, in
compliance with section
3746.14 of the Revised Code;
|
(b) |
If the person undertaking a
voluntary action seeks to obtain a covenant not to sue and if the remedy relies
on activity and use limitations to achieve applicable standards, a
demonstration that the activity and use limitations have been developed in
accordance with this chapter and rules adopted under it and are contained in a
proposed environmental covenant that meets the requirements established in
section 5301.82 of the Revised Code.
|
|
(4) |
If the remedy relies
on engineering controls that contain or control the release of hazardous
substances or petroleum at or from the property, a plan for the proper
operation and maintenance of the engineering controls. |
|
(D) |
Except as otherwise specifically
provided in this chapter and rules adopted under it, voluntary actions under
this chapter and rules adopted under it shall be undertaken in compliance with
all applicable laws of this state and rules adopted under them and with
applicable ordinances, resolutions, and rules of political subdivisions of this
state. |
Effective Date:
09-28-1994;
12-30-2004.
(A) |
After
receiving the demonstrations and operation and maintenance plan, if any,
required to be submitted to a certified professional under division (C) of
section 3746.10 of the Revised Code, the
certified professional shall review them to verify whether the property where
the voluntary action was undertaken complies with applicable standards or shall
ensure that they have been reviewed by another person or persons who performed
work to support the request for the no further action letter as provided in
division (B)(2) of section
3746.10 of the Revised Code. If,
on the basis of the best knowledge, information, and belief of the certified
professional, the certified professional concludes that the property meets
applicable standards, the certified professional shall prepare a no further
action letter for the property. The no further action letter shall contain all
the information specified in rules adopted under division (B)(7) of section
3746.04 of the Revised Code or in
division (E) of section
3746.07 of the Revised Code, as
applicable. Upon completion of a no further action letter, the certified
professional shall send a copy of the letter to the person who undertook the
voluntary action. The letter shall be accompanied by a written request that the
person notify the certified professional as to whether the person wishes to
submit the no further action letter to the director of environmental protection
and by a written notice informing the person that the original letter may be
submitted to the director only by a certified professional and that the person
may receive a covenant not to sue from the director in connection with the
voluntary action only if the no further action letter for the voluntary action
is submitted to the director on the person's behalf by the certified
professional. Promptly after receipt of the letter and request, the person
who undertook the voluntary action shall send written notice to the certified
professional informing the certified professional as to whether the person
wishes to submit the letter to the director and shall send a copy of the notice
to the director. If the person's notice indicates that the person wishes to
have the no further action letter submitted to the director, promptly after
receipt of the notice, the certified professional shall submit the original no
further action letter, together with a proposed environmental convenant, if
applicable, and a proposed operation and maintenance agreement, if applicable,
to the director by certified mail on behalf of the person who undertook the
voluntary action. If the person who undertook the voluntary action notifies the
certified professional that the person does not wish to submit the no further
action letter to the director, the certified professional shall send the
original letter to the person promptly after receiving the notice.
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(B) |
If after reviewing the
demonstrations required to be submitted to the certified professional under
division (C) of section
3746.10 of the Revised Code, the
certified professional finds that the property where the voluntary action was
undertaken does not comply with applicable standards, the certified
professional shall send to the person who undertook the voluntary action
written notice of that fact and of the certified professional's inability to
issue a no further action letter for the property. |
(C) |
A certified professional shall prepare a summary
report detailing the certified professional's findings and conclusions about
the environmental conditions at the property concerning which the professional
was requested to prepare a no further action letter and the remedial activities
undertaken to mitigate or abate any threat to public health and safety and the
environment, including, without limitation, all of the following:
(1) |
A description of the nature and extent of
contamination emanating from sources on the property; |
(2) |
A risk assessment performed in accordance
with rules adopted under division (B)(2) of section
3746.04 of the Revised Code if
such an assessment was used in lieu of generic numerical clean-up standards
established in rules adopted under division (B)(1) of that section; |
(3) |
A description of any remedy conducted at
the property and how the remedy complies with applicable standards; |
(4) |
A description of any plan for the proper
operation and maintenance of engineering controls identified under division
(C)(4) of section
3746.10 of the Revised Code;
|
(5) |
Any documents prepared by any
other person who performed work to support the request for the no further
action letter as provided in division (B)(2) of section
3746.10 of the Revised Code.
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|
(D) |
A certified
professional shall maintain all documents and data prepared or acquired by the
certified professional in connection with a no further action letter for not
less than ten years after the date of issuance of the letter or after the
notice required under division (B) of this section has been sent, as
applicable, or for a longer period as determined in rules adopted under section
3746.04 of the Revised Code. The
director shall have access to those documents and data in accordance with
section 3746.18 or
3746.31 of the Revised Code.
|
Effective Date:
09-28-1994;
12-30-2004.
(A) |
Except as
provided in division (C) of this section, the director of environmental
protection shall issue to a person on behalf of whom a certified professional
has submitted to the director an original no further action letter and
accompanying verification under division (A) of section
3746.11 of the Revised Code a
covenant not to sue for the property that is named in the letter. The director
shall not issue a covenant not to sue if an original no further action letter
is submitted to him by any person other than the certified professional who
prepared the letter or if a copy of the letter is submitted to him. A covenant not to sue shall contain both of the following, as
applicable:
(1) |
A provision releasing
the person who undertook the voluntary action from all civil liability to this
state to perform additional investigational and remedial activities to address
a release of hazardous substances or petroleum when the property has undergone
a phase I or a phase II property assessment in compliance with this chapter and
rules adopted under it or has been the subject of remedial activities conducted
under this chapter and rules adopted under it to address a release of hazardous
substances or petroleum and such an assessment or those activities demonstrate
or result in compliance with applicable standards, except:
(a) |
As otherwise specifically provided in
this chapter or as may be conditioned by the director under this chapter;
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(b) |
For claims for natural resource
damages the state may have pursuant to section 107 or 113 of the "Comprehensive
Environmental Response, Compensation, and Liability Act of 1980," 94 Stat. 2781
and 2792, 42 U.S.C.A. 9607 and
9613, as amended; |
(c) |
For claims the state may have pursuant to
section 107 of the "Comprehensive Environmental Response, Compensation, and
Liability Act of 1980," 94 Stat. 2781,
42 U.S.C.A. 9607, as amended, for costs other than those
for damages to natural resources, provided that the state incurs those other
costs as a result of an action by the president of the United States under
section 104, 106, 107, or 122 of that act or pursuant to section
3746.29 of the Revised Code.
|
|
(2) |
If the voluntary
action involves the use of engineering controls that contain and control the
release of hazardous substances or petroleum at or from the property in order
to comply with applicable standards, all of the following:
(a) |
A provision requiring that the person
enter into an operation and maintenance agreement with the director that
ensures that all engineering controls are maintained so that the remedy is
protective of public health and safety and the environment; that includes
provisions requiring the person to conduct monitoring for compliance with the
engineering controls and the applicable standards upon which issuance of the
covenant was based, and periodically to report the findings of the monitoring
to the director, as specified in the agreement; and that includes financial
assurances that the remedy will remain operational and functional; |
(b) |
A provision requiring the transferor of a
covenant that contains an operation and maintenance agreement for engineering
controls to notify the director whenever a transfer or assignment of the
covenant or property to which it applies occurs; |
(c) |
A provision revoking the covenant if the
engineering controls are violated or are no longer in place and the person has
not reinstated the controls within a reasonable period of time as determined in
accordance with the covenant. |
|
|
(B) |
(1) |
The release
provided under division (A)(1) of this section remains effective only for as
long as the property or portion thereof to which the covenant pertains
continues to comply with the applicable standards upon which the issuance of
the covenant was based. |
(2) |
Upon
finding that a property or portion thereof to which a covenant not to sue
pertains no longer complies with the applicable standards upon which issuance
of the covenant was based, the director, by certified mail, receipt requested,
shall mail notice of that fact and the requirements of division (B)(3) of this
section to the person responsible for maintaining compliance with those
standards. |
(3) |
Unless the
recipient of a notice provided under division (B)(2) of this section, within
thirty days after the mailing of the notice, notifies the director of his
intention to return the property or portion thereof to compliance with the
applicable standards upon which issuance of the covenant was based and enters
into a compliance schedule agreement with the director, the director, by
issuance of an order as a final action under Chapter 3745. of the Revised Code,
shall revoke the covenant. The compliance schedule agreement shall establish a
reasonable period of time for returning to compliance with those applicable
standards. |
(4) |
Upon finding that
a person with whom he has entered into a compliance schedule agreement under
division (B)(3) of this section has failed to return the property or portion
thereof to which the agreement pertains to compliance with the applicable
standards within the time established in the agreement, the director, by
issuance of an order as a final action under Chapter 3745. of the Revised Code,
shall revoke the covenant applicable to the property or portion thereof.
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|
(C) |
The director shall
deny a covenant not to sue as a final action for any of the following reasons:
(1) |
The no further action letter submitted on
behalf of the person seeking the covenant not to sue does not comply with
section 3746.11 of the Revised Code and
any rules adopted under this chapter regarding no further action letters;
|
(2) |
The director determines from
information available to him that a remedy identified in the no further action
letter does not protect public health and safety and the environment;
|
(3) |
The no further action letter
was submitted fraudulently. |
|
(D) |
The director shall not revoke a covenant not to
sue issued for property for which a voluntary action was conducted in
accordance with standards and procedures established in section
3746.07 of the Revised Code solely
on the basis that the voluntary action was conducted in accordance with those
standards and procedures. |
(E) |
Unless a covenant not to sue issued under this section is revoked through the
operation of a provision of the covenant described in division (A)(2)(c) of
this section, or under division (B) of this section, division (B)(2) of section
3746.18 of the Revised Code, or
division (B) of section
3746.19 of the Revised Code, the
covenant shall remain effective as long as the property complies with the
applicable standards that were in effect when the person who undertook the
voluntary action submitted the information and demonstrations required under
division (C) of section
3746.10 of the Revised Code to the
certified professional who prepared the no further action letter regardless of
whether amendments to the rules adopted under division (B)(1) or (2) of section
3746.04 of the Revised Code that
became effective after that time altered the generic numerical clean-up
standards for a contaminant addressed by the voluntary action or the procedures
or levels of acceptable risk that govern the property-specific risk assessments
conducted in lieu of compliance with generic numerical standards. |
Effective Date:
09-28-1994.
Upon receiving a request submitted under section
122.16 of the Revised Code for
verification of eligible costs associated with a voluntary action incurred by
the applicant for the agreement under that section, a certified professional
shall submit to the director of development verification of the eligible costs
associated with the voluntary action as defined in section
122.16 of the Revised Code. The
verification shall be submitted in the form of an affidavit subject to section
3746.20 of the Revised Code, shall
state that the information contained in the verification is true to the best of
the knowledge, information, and belief of the certified professional, and shall
be accompanied by any receipts, invoices, canceled checks, or other documents
evidencing eligible costs associated with the voluntary action that are
provided by the applicant. Verification submitted under this section does not
constitute a finding or representation by the certified professional that
eligible costs associated with the voluntary action are reasonable.
Effective Date:
09-29-1997.
(A) |
As used in this section:
(1) |
"Bona fide prospective purchaser" has the same meaning
as in
42 U.S.C. 9601, including the requirement that a
person acquired ownership of a facility after January 11, 2002. |
(2) |
"Facility" has the same meaning as in
42 U.S.C. 9601. |
|
(B) |
In a civil action to address a release or threatened
release of hazardous substances from a facility, it is an affirmative defense,
and a person is immune from liability to this state for performing
investigational and remedial activities, if all of the following apply:
(1) |
The person demonstrates that the person is a bona fide
prospective purchaser of the facility. |
(2) |
The state's cause of action against the person rests
upon the person's status as an owner or operator of the
facility. |
(3) |
The person does not impede a response action or a
natural resource restoration at the facility. |
|
(C) |
Nothing in this section precludes the application of
section
3746.02 of the Revised
Code to this section. |
(D) |
The affirmative defense provided for in division (B)
of this section may be asserted in either of the following:
(1) |
A civil action pending on the effective date of this
section; |
(2) |
A civil action initiated after the effective date of
this section. |
|
(E) |
The general assembly finds that this section is
remedial in nature. Therefore, the general assembly hereby declares its purpose
in enacting this section is to do both of the following:
(1) |
Adopt the federal definition of bona fide prospective
purchaser in
42 U.S.C. 9601 for purposes of this
section; |
(2) |
Extend the affirmative defense as specified in
division (D)(1) of this section. |
|
Added by
133rd General Assembly File No. 91, HB 168, §1,
eff.
9/15/2020.
(A) |
For
property that does not involve the issuance of a consolidated standards permit
under section
3746.15 of the Revised Code and
where no remedial activities for which there is a required operation and
maintenance agreement or an environmental covenant under this chapter or
sections 5301.80 to
5301.92 of the Revised Code, as
applicable, are used to comply with applicable standards, the director of
environmental protection shall issue a covenant not to sue pursuant to section
3746.12 of the Revised Code by
issuance of an order and as a final action under Chapter 3745. of the Revised
Code within thirty days after the director receives the no further action
letter for the property from the certified professional who prepared the letter
under section
3746.11 of the Revised Code.
|
(B) |
For property that involves
the issuance of a consolidated standards permit under section
3746.15 of the Revised Code or
where remedial activities for which there is a required operation and
maintenance agreement or an environmental covenant under this chapter or
sections 5301.80 to
5301.92 of the Revised Code, as
applicable, are used to comply with applicable standards, the director shall
issue a covenant not to sue pursuant to section
3746.12 of the Revised Code by
issuance of an order and as a final action under Chapter 3745. of the Revised
Code within ninety days after the director receives the no further action
letter for the property from the certified professional who prepared the letter
and enters into an environmental convenant regarding the property, if
applicable. |
(C) |
Except as
provided in division (D) of this section, each person who is issued a covenant
not to sue under this section shall pay the fee established pursuant to rules
adopted under division (B)(8) of section
3746.04 of the Revised Code. Until
those rules become effective, each person who is issued a covenant not to sue
shall pay a fee of two thousand dollars. The fee shall be paid to the director
at the time that the no further action letter and accompanying verification are
submitted to the director. |
(D) |
An
applicant, as defined in section
122.65 of the Revised Code, who has
entered into an agreement under section
122.653 of the Revised Code and who
is issued a covenant not to sue under this section shall not be required to pay
the fee for the issuance of a covenant not to sue established in rules adopted
under division (B)(8) of section
3746.04 of the Revised Code.
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Effective Date:
09-26-2003.
(A) |
Except as
otherwise provided in division (B) of this section, the person to whom a
covenant not to sue for a property has been issued under section
3746.12 of the Revised Code shall
file for recording in the office of the county recorder of the county in which
the property is located a true and accurate copy of all of the following:
(1) |
The no further action letter issued under
section 3746.11 of the Revised Code or an
executive summary of it; |
(2) |
The
covenant not to sue issued for the property under section
3746.12 of the Revised Code;
|
(3) |
The environmental covenant for
the property, if any, proposed pursuant to division (C)(3)(b) of section
3746.10 of the Revised Code and
executed under section
5301.82 of the Revised Code. The documents specified in divisions (A)(1) to (3) of this
section shall be recorded in the same manner as a deed to the property. The no
further action letter, covenant not to sue, and environmental covenant, if any,
shall run with the property.
|
No person shall fail to comply with this division.
|
|
|
(B) |
Pursuant to Chapter 5309. of the Revised Code, a no further action letter, a
covenant not to sue, and, if applicable, any environmental covenant prepared,
issued, entered into, or identified under this chapter and rules adopted under
it or under sections
5301.80 to
5301.92 of the Revised Code, as
applicable, in connection with registered land, as defined in section
5309.01 of the Revised Code, shall
be entered as a memorial on the page of the register where the title of the
owner is registered. |
(C) |
A no
further action letter, a covenant not to sue, and any agreement authorized to
be entered into and entered into under this chapter and rules adopted under it
may be transferred by the recipient to any other person by assignment or in
conjunction with the acquisition of title to the property to which the document
applies. |
Effective Date:
09-28-1994;
12-30-2004.
(A) |
A person
participating in the voluntary action program under this chapter and rules
adopted under it who otherwise would be required to obtain any permits,
licenses, plan approvals, or other approvals from the environmental protection
agency in connection with the voluntary action under Chapter 3704., 3714.,
3734., or 6111. of the Revised Code or rules adopted under any of those
chapters, or under the "Federal Water Pollution Control Act Amendments of
1972," 86 Stat. 886, 33 U.S.C.A. 1251, as amended, the "Resource
Conservation and Recovery Act of 1976," 90 Stat. 2806,
42 U.S.C.A. 6921, as amended, or the "Air Quality Act of
1967," 81 Stat. 485, 42 U.S.C.A. 1857, as amended, or regulations adopted under
any of those acts, may obtain a consolidated standards permit for the
activities in connection with the voluntary action for which those permits,
licenses, plan approvals, or other approvals are required that contains all of
the substantive requirements applicable to those activities under any of those
chapters, rules, acts, or regulations and that complies with any agreements the
director of environmental protection has entered into with the United States
environmental protection agency under those acts or regulations. |
(B) |
Prior to issuing a permit under this
section, the director shall hold a public meeting on it in the county in which
the affected property is located or in an adjacent county. At least thirty days
prior to holding the public meeting, the director shall publish notice of the
meeting in a newspaper of general circulation in the county in which the
property is located and, if the affected property is located in close proximity
to the boundary of the county with an adjacent county, as determined by the
director, shall publish notice of the meeting in a newspaper of general
circulation in the adjacent county. The notice shall contain the date, time,
and location of the public meeting and a general description of the activities
to be conducted at the property under the permit. At the public meeting, any person may submit written or oral
comments on or objections to the permit. The person, or a representative of the
person, who requested the permit shall be present at the public meeting to
respond to comments or questions concerning the voluntary action conducted or
to be conducted at the property directed to him by the officer or employee of
the agency presiding at the meeting. After considering the comments and
objections, the director shall approve or deny an application for a
consolidated standards permit by issuance of an order as a final action under
Chapter 3745. of the Revised Code.
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(C) |
A person who is issued a consolidated standards
permit under this section in connection with a particular activity is not
required to obtain a permit, license, plan approval, or other approval in
connection with the activity under the applicable provisions of Chapter 3704.,
3714., 3734., or 6111. of the Revised Code and rules adopted under any of those
chapters. A person who obtains a consolidated standards permit for a particular
activity is hereby deemed to be in compliance with the requirement to obtain a
permit, license, plan approval, or other approval in connection with the
activity under the applicable provisions of those chapters and rules.
|
(D) |
No person shall violate or
fail to comply with a term or condition of a consolidated standards permit
issued under this section. |
Effective Date:
09-28-1994.
Moneys collected by the director of environmental protection
under this chapter and rules adopted under it shall be forwarded to the
treasurer of state who shall deposit them to the credit of the voluntary action
program administration fund, which is hereby created in the state treasury. The
director shall expend moneys in the fund exclusively for the implementation,
administration, and enforcement of this chapter and rules adopted under it.
Effective Date:
09-28-1994.
(A) |
The
director of environmental protection shall conduct audits in connection with no
further action letters issued under section
3746.11 of the Revised Code for
all of the following purposes:
(1) |
Determining whether after completion of the voluntary actions under this
chapter and rules adopted under it, the properties where the voluntary actions
were conducted meet applicable standards; |
(2) |
Reviewing the qualifications of and work
performed by certified professionals under the voluntary action program to
ascertain whether they possess the qualifications for certification pursuant to
rules adopted under division (B)(5) of section
3746.04 of the Revised Code and
whether their performance under the program has resulted in the issuance of no
further action letters that are not consistent with applicable standards;
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(3) |
Reviewing the qualifications of
and work performed by certified laboratories in connection with the voluntary
action program, and inspecting the facilities of certified laboratories to
ascertain whether they possess the qualifications for certification pursuant to
rules adopted under division (B)(6) of section
3746.04 of the Revised Code and
whether their performance in connection with the program has resulted in the
issuance of no further action letters that are not consistent with applicable
standards. An audit may be conducted for any of the purposes identified in
divisions (A)(1) to (3) of this section or for any combination of those
purposes.
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|
(B) |
Commencing one year after the effective date of this section, the director
annually shall conduct in connection with the no further action letters
submitted to him during the preceding calendar year under section
3746.11 of the Revised Code audits
of not less than twenty-five per cent of the letters pertaining [to] the
voluntary actions that involved remedial activities and not less than
twenty-five per cent of the letters pertaining to voluntary actions that did
not involve remedial activities. Audits conducted pursuant to contracts entered
into under division (E) of this section or division (B) of section
3745.01 of the Revised Code shall
be included in determining the number of audits conducted by the director
during the year in which the audits were conducted. |
(C) |
Except as provided in division (D) of this
section, the director shall select the no further action letters to be audited
under this section in accordance with the selection criteria established in
rules adopted under division (B)(9) of section
3746.04 of the Revised Code. Any
such audit shall be conducted in accordance with the rules adopted under that
division. |
(D) |
Prior to the
adoption of rules under section
3746.04 of the Revised Code, the
director may conduct audits in connection with no further action letters issued
under section
3746.11 of the Revised Code in
order to determine if the relevant properties, certified professionals,
certified laboratories, or any combination of them comply with the standards
established in section
3746.07 of the Revised Code.
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(E) |
The director may enter into
contracts to have audits conducted under this section in accordance with rules
adopted under division (B)(9) of section
3746.04 of the Revised Code. The
director shall not select as a contractor to conduct audits under this section
a person who meets any of the following:
(a) |
Undertook the voluntary action in connection with which the audit is to be
performed; |
(b) |
Is employed by,
affiliated with, or related to the person who undertook the voluntary action in
connection with which the audit is to be performed or was employed by or
affiliated with that person during the year preceding the date that the audit
is to be conducted; |
(c) |
Served as
the certified professional who issued the no further action letter for the
voluntary action in connection with which the audit is to be performed or is
employed by, affiliated with, or related to the person who served as the
certified professional or was employed by or affiliated with that person during
the year preceding the date that the audit is to be conducted; |
(d) |
Performed or reviewed, or his employer
performed or reviewed, any work that was conducted to support the request for
the no further action letter in connection with which the audit is to be
performed; |
(e) |
Served as a
certified laboratory that performed any analyses that formed the basis for the
issuance of the no further action letter in connection with which the audit is
to be performed, is employed by, affiliated with, or related to the person who
served as such a certified laboratory, or was employed by or affiliated with
that person during the year preceding the date that the audit is to be
conducted. |
|
Effective Date:
09-28-1994.
The director of environmental protection shall maintain a
record of the properties for which covenants not to sue were issued under
section 3746.12 of the Revised Code that
involve institutional controls or activity and use limitations that restrict
the use of the properties in order to comply with applicable standards. The
records pertaining to those properties shall indicate the use restrictions or
activity and use limitations applicable to each of them. At least once every
five years, the director or an authorized representative of the director shall
visually inspect each such property to determine whether the property is being
used in compliance with the applicable institutional controls or activity and
use limitations.
Effective Date:
09-28-1994;
12-30-2004.
(A) |
The
director of environmental protection may request a certified professional or
certified laboratory to provide to him documents and data for the purposes of
verifying the qualifications of the professional or laboratory or auditing the
performance of the professional or laboratory in connection with voluntary
actions conducted under this chapter and rules adopted under it or may request
any other person who performed work that was conducted to support a request for
a no further action letter as provided in division (B)(2) of section
3746.10 of the Revised Code to
submit documents and data relating to the no further action letter. No person shall fail to comply with a request made under this
division.
|
(B) |
In addition
to any other remedy provided by law, the director may do either or both of the
following in connection with a violation of division (A) of this section:
(1) |
Permanently revoke the certification of
the certified professional or certified laboratory in accordance with rules
adopted under division (B)(5)(g) or (B)(6)(f) of section
3746.04 of the Revised Code, as
applicable; |
(2) |
Revoke any covenant
not to sue issued under section
3746.12 of the Revised Code
pertaining to the director's request for information under division (A) of this
section. Nothing in division (B)(2) of this section precludes a person
whose covenant not to sue was revoked under that division from having a new no
further action letter prepared regarding the relevant property and issued under
section 3746.11 of the Revised Code by
another certified professional, or using another certified laboratory, for the
purpose of obtaining a new covenant not to sue for the property.
|
|
Effective Date:
09-28-1994.
(A) |
If the
director of environmental protection finds that the performance of a certified
professional or certified laboratory has resulted in the issuance of no further
action letters under section
3746.11 of the Revised Code that
are not consistent with applicable standards, he shall notify persons for whom
the certified professional or certified laboratory has performed work in
connection with a voluntary action of his findings. |
(B) |
The director, in accordance with the criteria and
procedures established in rules adopted under division (B)(9) of section
3746.04 of the Revised Code, may
conduct an audit of any property for which a covenant not to sue was issued
under section
3746.12 of the Revised Code based
upon a no further action letter issued under section
3746.11 of the Revised Code that
was prepared by a certified professional whose certification was subsequently
suspended or revoked under this chapter and rules adopted under it or based
upon a no further action letter for a voluntary action for which analyses were
performed by a certified laboratory for which the certification was
subsequently suspended or revoked under this chapter and rules adopted under
it. If, after such an audit, the director finds that the property
does not comply with applicable standards, he shall proceed in accordance with
divisions (B)(2) through (4) of section
3746.12 of the Revised Code.
|
Effective Date:
09-28-1994.
(A) |
All of the
following shall be submitted by affidavit:
(1) |
Any information, data, documents, or
reports submitted by any of the following to another person for the purposes of
a voluntary action conducted under this chapter and rules adopted under it:
(a) |
The person undertaking the voluntary
action; |
(b) |
A certified
professional; |
(c) |
Any other person
who performed work that was conducted to support a request for a no further
action letter as provided in division (B)(2) of section
3746.10 of the Revised Code;
|
(d) |
A certified laboratory.
|
|
(2) |
Any information
submitted by an environmental professional to the director of environmental
protection for the purposes of complying with rules adopted under division
(B)(5)(a) or (c) of section
3746.04 of the Revised Code or
with division (D) of section
3746.07 of the Revised Code;
|
(3) |
Any information submitted by a
laboratory for the purposes of complying with rules adopted under division
(B)(6)(a) or (b) of section
3746.04 of the Revised Code;
|
(4) |
The verification of eligible
costs associated with a voluntary action submitted by a certified professional
to the director of development pursuant to section
3746.121 of the Revised Code.
|
|
(B) |
No person shall
materially falsify, tamper with, or render inaccurate any information, data,
documents, or reports generated for the purposes of or used in documenting or
preparing a no further action letter under this chapter or rules adopted under
it or verification of eligible costs under section
3746.121 of the Revised Code. Violation of this division is not falsification under section
2921.13 of the Revised Code.
|
(C) |
In accordance with
rules adopted under division (B)(5)(f) of section
3746.04 of the Revised Code, the
director permanently shall revoke the certification of a certified professional
who violates division (B) of this section. |
(D) |
No person, with purpose to deceive a certified
professional, certified laboratory, or a contractor thereof, or the
environmental protection agency or a contractor thereof, shall withhold,
conceal, or destroy any data, information, records, or documents relating to a
voluntary action. |
Effective Date:
08-22-1996.
In addition to the authority established in sections
3746.18,
3746.19, and
3746.20 of the Revised Code, the
director of environmental protection or his authorized representative, upon
proper identification and upon stating the necessity and purpose of an
inspection, may enter at reasonable times upon any public or private property
at which a voluntary action has been or is being conducted under this chapter
and rules adopted under it; upon any public or private property, real or
personal, that is owned or operated by a person who is participating or has
participated in the voluntary action program under this chapter and rules
adopted under it where data, information, records, or documents relating to the
person's participation in the voluntary action program are kept; or upon any
public or private property, real or personal, upon which is located a certified
laboratory or the offices of a certified professional, to inspect the
credentials of the certified professional or the credentials and facilities of
the certified laboratory; to examine or copy data, information, records, or
documents relating to the evaluation, investigation, or remediation of
properties under this chapter and rules adopted under it or to compliance with
a consolidated standards permit issued under section
3746.15 of the Revised Code; or to
obtain samples of soil, water, or other environmental media at properties where
voluntary actions have been or are being conducted under this chapter and rules
adopted under it. The director or his authorized representative may apply for
and any judge of a court of record may issue an administrative inspection
warrant under division (F) of section
2933.21 of the Revised Code, or
other appropriate search warrant, necessary to achieve the purposes of this
chapter within the court's territorial jurisdiction.
Effective Date:
09-28-1994.
(A) |
The
attorney general, the prosecuting attorney of the county, or the city director
of law of the city where a violation of section
3746.14,
3746.15,
3746.18, or
3746.20 of the Revised Code has
occurred or is occurring, upon the written request of the director of
environmental protection, shall criminally prosecute to termination or bring an
action for injunction in any court of competent jurisdiction against any person
who has violated or is violating any of those sections. The court in which an
action for injunction is filed has the jurisdiction to and shall grant
preliminary and permanent injunctive relief upon a showing that the person
against whom the action is brought has violated or is violating any of those
sections. The court shall give precedence to such an action over all other
cases. |
(B) |
Whoever violates
section 3746.14,
3746.18, or
3746.20 of the Revised Code, or
violates section
3746.15 of the Revised Code in a
manner that otherwise would constitute a violation of Chapter 3714., 3734., or
6111. of the Revised Code or rules adopted under any of those chapters, shall
pay a civil penalty of not more than ten thousand dollars for each day of each
violation. Whoever violates section
3746.15 of the Revised Code in a
manner that otherwise would constitute a violation of Chapter 3704. of the
Revised Code or rules adopted under it shall pay a civil penalty of not more
than twenty-five thousand dollars for each day of each violation. The attorney
general, the prosecuting attorney of the county, or the city director of law of
the city where a violation of any of those sections has occurred or is
occurring, upon the written request of the director, shall bring an action
under this division for the imposition of a civil penalty in any court of
competent jurisdiction against any person who has committed or is committing
any such violation. Moneys arising from civil penalties imposed under this
division shall be paid into the voluntary action program administration fund
created in section
3746.16 of the Revised Code.
|
(C) |
An action for injunction or
civil penalties under division (A) or (B) of this section is a civil action
governed by the Rules of Civil Procedure. |
Effective Date:
09-28-1994.
(A) |
As used in
this section, "costs of conducting the voluntary action" means the costs
incurred for performing a voluntary action that are cost effective and
reasonably necessary to protect public health and safety and the environment,
including, without limitation, the costs for all of the following:
(1) |
Identifying potential sources of
contamination of the property by hazardous substances where a voluntary action
is being or was undertaken under this chapter and rules adopted under it;
|
(2) |
Investigating the nature and
extent of contamination of the property by hazardous substances in order to
screen and select remedial alternatives; |
(3) |
Preparing a remedial plan for the
property; |
(4) |
Conducting the
remedial activities, including, without limitation, the future operation and
maintenance costs of any engineering controls installed to contain or control
the release of hazardous substances at or from the property; |
(5) |
The preparation and submission of a no
further action letter by a certified professional in connection with the
voluntary action; |
(6) |
Any oversight
costs paid to the environmental protection agency; |
(7) |
Reasonable attorney's fees, court costs,
and other expenses in connection with the action brought under this section. "Costs of conducting the voluntary action" does not include the
costs of any work performed at the property to render it suitable for a higher
use than its current use or its most recent demonstrable use that is in
addition to the work that is cost effective and reasonably necessary to protect
public health and safety and the environment.
|
|
(B) |
Any person who, at the time when any of
the hazardous substances identified and addressed by a voluntary action
conducted under this chapter and rules adopted under it were released at or
upon the property that is the subject of the voluntary action, was the owner or
operator of the property, and any other person who caused or contributed to a
release of hazardous substances at or upon the property, is liable to the
person who conducted the voluntary action for the costs of conducting the
voluntary action. If the person who conducted the voluntary action did not
cause or contribute to any release of hazardous substances at or upon the
property that were identified and addressed by the voluntary action, he may
recover in a civil action the costs of conducting the voluntary action from the
owners or operators of the property at the time when those releases occurred
and the other persons who caused or contributed to the releases. If the person
who conducted the voluntary action caused or contributed to any release of
hazardous substances at or upon the property that were identified and addressed
by the voluntary action, he may recover in a civil action from the owners and
operators of the property when those releases occurred and the other persons
who caused or contributed to the releases the costs of conducting the voluntary
action that are attributable to the releases that those owners, operators, and
others caused or contributed to. If two or more persons are found to have caused or contributed
to a release of hazardous substances at or upon the property, the costs of
conducting the voluntary action shall be apportioned among each such person on
the basis of his respective degree of responsibility for the costs.
|
(C) |
A civil action
authorized by this section shall be commenced in the court of common pleas of
the county in which is located the property at which the voluntary action is
conducted. The person conducting the voluntary action may commence the civil
action at any time after the person has commenced the conduct of the voluntary
action. Notwithstanding section
2305.09 of the Revised Code, a
civil action shall be commenced under this section within three years after the
applicable no further action letter was submitted to the director of
environmental protection under section
3746.11 of the Revised Code in
connection with the voluntary action. |
(D) |
All of the owners and operators of the property
when the releases of hazardous substances identified and addressed by the
voluntary action occurred, and the other persons who caused or contributed to
those releases, shall be joined as defendants in a civil action commenced under
this section. The liability of those owners, operators, and others for the
costs of conducting the voluntary action shall be based upon their respective
degrees of responsibility for the costs. When determining the respective
degrees of responsibility for the costs of those owners, operators, and others,
the jury or, in a nonjury action, the court may consider the nature and amount
of hazardous substances stored, treated, disposed of, used, and released by
each person; the length of time that each person owned or operated the
property; each person's history of compliance with applicable federal and state
environmental laws and rules in the use and operation of the property; and any
other factors that the jury or court considers to be appropriate. |
(E) |
This section shall allow the filing of
claims for recovery of the costs of conducting a voluntary action that
identifies and addresses releases of hazardous substances that occurred prior
to, on, or after the effective date of this section. |
(F) |
The existence of a claim for relief under this
section does not preclude persons from allocating the costs of conducting a
voluntary action among themselves by contract. Contractual allocations of those
costs do not affect the rights, liabilities, or obligations to this state of
the parties to the contractual allocation. |
(G) |
This section does not create a claim for relief to
recover the costs of conducting a voluntary action against any of the
following:
(1) |
A person who neither caused
nor contributed to in any material respect a release of hazardous substances
on, in, or under the property that was identified and addressed by the
voluntary action nor who expressly undertook contractual liability for
conducting the voluntary action; |
(2) |
Notwithstanding a landlord's rights
against a tenant, a landlord if the landlord did not know, and could not
reasonably have known, of the acts or omissions of a tenant that caused or
contributed to, or were likely to have caused or contributed to, a release of a
hazardous substance that resulted in the conduct of the voluntary action at the
property; |
(3) |
This state or a
political subdivision of this state if it involuntarily acquires ownership or
control of property by virtue of its function as a sovereign through such means
as escheat, bankruptcy, tax delinquency, or abandonment; |
(4) |
This state or a political subdivision of
this state if it voluntarily acquires ownership or control of property through
purchase, appropriation in accordance with Chapter 163. of the Revised Code, or
other means; |
(5) |
An owner or
operator or any other person who caused or contributed to a release of
petroleum at or upon property that was identified and addressed by a voluntary
action for that portion of the costs of conducting a voluntary action arising
from the petroleum release. If a petroleum release became mixed with a release
of a hazardous substance on or upon the property, the owner or operator or
other person who caused or contributed to the release of petroleum is not
liable for that increment of the costs of conducting a voluntary action that is
attributable to the presence of the petroleum release; |
(6) |
A holder who is in compliance with the
requirements of section
3746.26 of the Revised Code;
|
(7) |
A fiduciary or trustee who is
in compliance with the requirements of section
3734.27 of the Revised Code.
|
|
(H) |
Division (G)(5) of
this section does not affect any other liability to which any person described
in that division otherwise is subject under state or federal law. |
Effective Date:
09-28-1994.
(A) |
As used in
this section:
(1) |
"Harm" means injury, death,
or loss to person or property caused by exposure to a hazardous substance or
petroleum. |
(2) |
"Public utility"
includes, without limitation, a person engaged in the storage and
transportation of natural gas. |
(3) |
"Tort action" means a civil action for damages for harm and includes a civil
action under section
3746.23 of the Revised Code for
recovery of the costs of conducting a voluntary action, but does not include a
civil action for damages for a breach of contract or another agreement between
persons or for a breach of a warranty that exists pursuant to the Revised Code
or common law of this state. |
|
(B) |
Any of the following, and any officer or employee
thereof, is not liable in a tort action resulting from the presence of
hazardous substances or petroleum at, or the release of hazardous substances or
petroleum from, a property where a voluntary action is being or has been
conducted under this chapter and rules adopted under it unless an action or
omission of the person, state agency, political subdivision, or public utility,
or an officer or employee thereof, constitutes willful or wanton misconduct or
intentionally tortious conduct:
(1) |
A person
who is working as a contractor for another in conducting any activity in
connection with a voluntary action under this chapter and rules adopted under
it; |
(2) |
A state agency or political
subdivision that is conducting a voluntary action or maintenance activities on
lands, easements, or rights-of-way owned, leased, or otherwise held by the
state agency or political subdivision; |
(3) |
A state agency when an officer or
employee of the state agency, as defined in section
109.36 of the Revised Code,
provides technical assistance to a person undertaking a voluntary action under
this chapter and rules adopted under it, or to a contractor, officer, employee,
or agency thereof, in connection with the voluntary action; |
(4) |
A public utility that is doing either of
the following:
(a) |
Performing work in an
easement or right-of-way of the public utility across property where a
voluntary action is being or has been conducted and where the public utility is
constructing or has main or distribution lines above or below the surface of
the ground for purposes of maintaining the easement or right-of-way or for
construction, repair, or replacement of its lines; of poles, towers,
foundations, or other structures supporting or sustaining any such lines; or of
appurtenances to those structures; |
(b) |
Performing work on property where a
voluntary action is being conducted that is necessary to establish or maintain
utility service to the property, including, without limitation, the
construction, repair, or replacement of main or distribution lines above or
below the surface of the ground; of poles, towers, foundations, or other
structures supporting or sustaining any such lines; or of appurtenances to
those structures. |
|
(5) |
The
Ohio water development authority created in section
6121.02 of the Revised Code and
the director of environmental protection as the providers of assistance under
section 6111.036 or Chapter 6123. of the
Revised Code to any person undertaking a voluntary action. |
|
(C) |
(1) |
This section does not create, and shall not be construed as creating, a new
cause of action against or substantive legal right against this state or a
person, political subdivision of this state, or public utility, or an officer
or employee thereof. |
(2) |
This
section does not affect, and shall not be construed as affecting, any
immunities from civil liability or defenses established by another section of
the Revised Code or available at common law, to which this state or a person,
political subdivision, or public utility, or officer or employee thereof, may
be entitled under circumstances not covered by this section. |
(3) |
Section
9.86 of the
Revised Code does not apply to an officer or employee of the state, as defined
in section 109.36 of the Revised Code, if the
officer or employee is performing work in connection with an activity described
in division (B)(2) or (3) of this section at the time he allegedly caused the
harm, or caused or contributed to the release of hazardous substances or
petroleum, for which damages, or the recovery of the costs of conducting a
voluntary action, are sought in a tort action. Instead, the immunities
conferred by division (B)(2) or (3) of this section, whichever is applicable,
apply to that individual. |
(4) |
Divisions (B)(2), (3), and (4) of section
2744.02 of the Revised Code do not
apply to a political subdivision of this state with respect to the conduct of
an activity described in division (B)(2) or (4) of this section. Instead, the
immunities conferred by division (B)(2) or (4) of this section, whichever is
applicable, apply to the political subdivision. |
(5) |
Division (A)(6) of section
2744.03 of the Revised Code does
not apply to an employee, as defined in section
2744.01 of the Revised Code, if
the employee is performing work in connection with an activity described in
division (B)(2) or (4) of this section at the time that he allegedly caused the
harm, or caused or contributed to the release of hazardous substances or
petroleum, for which damages, or the recovery of the costs of conducting the
voluntary action, are sought in a tort action. Instead, the immunities
conferred by division (B)(2) or (4) of this section, whichever is applicable,
apply to that individual. |
|
(D) |
This section does not affect, and shall not be
construed as affecting, any liability of an owner or operator of a property on
which a voluntary action is being or has been undertaken. No person shall be
deemed to be an owner or operator solely as the result of conducting a
voluntary action at the property. |
Effective Date:
09-28-1994.
(A) |
As used in
this section:
(1) |
"Harm" means injury, death,
or loss to person or property. |
(2) |
"Tort action" means a civil action for damages for harm and includes a civil
action under section
3746.23 of the Revised Code for
recovery of the costs of conducting a voluntary action, but does not include a
civil action for damages for a breach of contract or another agreement between
persons or for a breach of a warranty that exists pursuant to the Revised Code
or common law of this state. |
|
(B) |
The state, and any officer or employee thereof as
defined in section
109.36 of the Revised Code, is not
liable in a tort action when the state inspects, investigates, removes, or
remediates hazardous substances or petroleum unless an action or omission of
the state, or an officer or employee thereof, constitutes willful or wanton
misconduct or intentionally tortious conduct. |
(C) |
(1) |
This
section does not create, and shall not be construed as creating, a new cause of
action against or substantive legal right against the state or an officer or
employee thereof. |
(2) |
This
section does not affect, and shall not be construed as affecting, any
immunities from civil liability or defenses established by another section of
the Revised Code or available at common law to which this state, or an officer
or employee thereof, may be entitled under circumstances not covered by this
section. |
(3) |
Section
9.86 of the
Revised Code does not apply to an officer or employee of the state if the
officer or employee is performing work in connection with inspecting,
investigating, removing, or remediating hazardous substances or petroleum at
the time that he allegedly caused the harm, or caused or contributed to the
presence or release of hazardous substances or petroleum, for which damages, or
the recovery of the costs of conducting a voluntary action, are sought in a
tort action. Instead, the immunities conferred by division (B) of this section
apply to that individual. |
|
Effective Date:
09-28-1994.
(A) |
(1) |
Any person who, without participating in the
management of a property, holds indicia of ownership in a property primarily to
protect a security interest in the property is not liable for:
(a) |
The costs of conducting a voluntary
action in a civil action brought under section
3746.23 of the Revised Code or
otherwise brought under the Revised Code or common law of this state in
connection with a voluntary action undertaken at a property in which the person
holds indicia of ownership for that purpose; |
(b) |
For for the costs of investigating or
remediating a release or threatened release of hazardous substances or
petroleum at or upon any property that may be the subject of investigation or
remediation of hazardous substances or petroleum, irrespective of whether or
not any such costs are incurred in connection with a voluntary action
undertaken pursuant to any provision of this chapter of the Revised Code in a
civil action brought under section
3746.23 of the Revised Code or
otherwise brought under the Revised Code or common law of this state, provided
that, after taking title to the property, the person conducts or causes to be
conducted all activities occurring at the property not related to the
identification or remediation of releases or threatened releases of hazardous
substances or petroleum in compliance with the applicable requirements of
Chapters 3704., 3714., 3734., 3737., 3750., 3751., 6109., and 6111. of the
Revised Code and rules adopted under them. |
|
(2) |
Such a person who, after taking title to property,
conducts or causes to be conducted all such nonremedial activities at the
property in compliance with the applicable requirements under those chapters
and rules is not required to comply with any provisions of those chapters and
rules pertaining to the investigation or remediation of releases or threatened
releases of hazardous substances or petroleum at or upon the property and shall
not be subject to the issuance of an enforcement order, or a civil action for
injunctive relief, under any of those chapters requiring the identification or
remediation of any release or threatened release of hazardous substances or
petroleum at or upon the property. |
|
(B) |
For the purposes of this section, "indicia of
ownership" means evidence of a security interest, evidence of an interest in a
security interest, or evidence of an interest in real or personal property
securing a loan or other obligation, including any legal or equitable title to
real property acquired incident to foreclosure or its equivalents. Evidence of
those interests includes, without limitation, mortgages, deeds of trust, liens,
surety bonds and guarantees of obligations, title held pursuant to a lease
financing transaction in which the lessor does not initially select the leased
property, which shall hereafter be referred to as a lease financing
transaction, legal or equitable title obtained pursuant to foreclosure, and
their equivalents. Evidence of those interests also includes assignments,
pledges, or other rights or other forms of encumbrance against property that
are held primarily to protect a security interest.
(1) |
For the purposes of this section, a
"holder" is a person who maintains indicia of ownership primarily to protect a
security interest. A "holder" includes the initial holder, such as the loan
originator; any subsequent holder, such as a successor in interest or
subsequent purchaser of the security interest in the secondary market; a
guarantor of an obligation; a surety; any other person who holds indicia
primarily to protect a security interest; or a receiver or other person who
acts on behalf or for the benefit of the holder. |
(2) |
For the purposes of this section, a
"borrower," "debtor," or "obligor" is a person whose property is encumbered by
a security interest. These terms are used interchangeably in this section.
|
|
(C) |
As used in this
section, "primarily to protect a security interest" means the holder's indicia
of ownership are held primarily for the purpose of securing payment or
performance of an obligation. "Primarily to protect a security interest" does
not include indicia of ownership held primarily for purposes other than as
protection for a security interest. A holder may have other, secondary reasons
for maintaining indicia of ownership, but the primary reason why ownership
indicia are held shall be protection for a security interest. |
(D) |
As used in this section, "security
interest" means an interest in property created or established for the purpose
of securing a loan or other obligation. "Security interest" includes, without
limitation, a mortgage, deed of trust, lien, or title pursuant to a lease
financing transaction. A security interest also may arise from a transaction
such as a sale and leaseback, a conditional sale, an installment sale, a trust
receipt transaction, certain types of assignments, a factoring agreement, an
accounts receivable financing, and a consignment if the transaction created or
established an interest in a property for the purpose of securing a loan or
other obligation. |
(E) |
(1) |
As used in this section, "participation in the
management of a property" means actual participation in the management or
operational affairs by the holder and does not include the mere capacity to
influence, or ability to influence, or the unexercised right to control the
operations of the property. A holder is participating in management while the
borrower is still in possession of the property encumbered by the security
interest only if the holder does either of the following:
(a) |
Exercises decision-making control over
the borrower's environmental compliance such that the holder has undertaken
responsibility for the borrower's hazardous substance or petroleum handling or
disposal practices; |
(b) |
Exercises
control at a level comparable to that of a manager of the borrower's enterprise
such that the holder has assumed or manifested responsibility for the overall
management of the enterprise encompassing the day-to-day decision-making of the
enterprise with respect to either of the following:
(i) |
Environmental compliance; |
(ii) |
All or substantially all of the
operational, as opposed to financial or administrative, aspects of the
enterprise other than environmental compliance. For the purposes of division (E)(1) of this section,
"operational aspects of the enterprise" includes functions such as that of a
property, facility, or plant manager; operations manager; chief operating
officer; or chief executive officer; and "financial or administrative aspects"
includes functions such as that of credit manager, accounts payable or
receivable manager, personnel manager, controller, chief financial officer, or
similar functions.
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(2) |
"Participation in the management of a property"
does not include either of the following:
(a) |
Actions at the inception of the loan or other transaction. No act or omission prior to the time that indicia of ownership
are held primarily to protect a security interest constitutes evidence of
participation in management. A prospective holder who undertakes or requires an
environmental inspection of the property in which indicia of ownership are to
be held, or, whether prior or subsequent to the time that indicia of ownership
are held primarily to protect a security interest, requires a prospective
borrower to clean up a property or comply or come into compliance with any
applicable law or rule, is not participating in the property's management. This
section does not require a holder to conduct or require an inspection of the
property to qualify for the exemption provided by this section, and the
liability of a holder cannot be based on or affected by the holder's not
conducting or requiring an inspection.
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(b) |
Policing and work-out, as described in
divisions (E)(2)(b)(i) and (ii) of this section. Actions that are consistent with holding indicia primarily to
protect a security interest do not constitute participation in management. The
authority for the holder to take such actions may, but need not, be contained
in contractual or other documents specifying requirements for financial,
environmental, and other warranties, covenants, conditions, representations, or
promises from the borrower. Loan policing and work-out activities cover and
include all activities up to foreclosure and its equivalents.
(i) |
A holder who engages in policing
activities prior to foreclosure remains within the exemption provided by this
section, provided that the holder does not participate in the management of the
property. These activities include, without limitation, requiring the borrower
to clean up the property during the term of the security interest; requiring
the borrower to comply or come into compliance with applicable environmental
laws, other applicable laws, and applicable rules or regulations of the United
States, this state, or political subdivisions of this state during the term of
the security interest; securing or exercising authority to monitor or inspect
the property in which the indicia of ownership are maintained during the term
of the security interest, including, without limitation, on-site inspections;
securing or exercising authority to inspect or monitor the borrower's business
or financial condition during the term of the security interest; or taking
other actions to adequately police the loan or security interest such as
requiring a borrower to comply with any warranties, covenants, conditions, or
representations or promises from the borrower. |
(ii) |
A holder who engages in work-out
activities prior to foreclosure and its equivalents remains within the
exemption provided by this section if the holder does not participate by that
action in the management of the property. As used in this section, "work-out" means those actions by
which a holder, at any time prior to foreclosure and its equivalents, seeks to
prevent, cure, or mitigate a default by the borrower or obligor or to preserve
or prevent the diminution of the value of the security interest. These actions
include, without limitation, restructuring or renegotiating the terms of the
security interest; requiring payment of additional rent or interest; exercising
forbearance; requiring or exercising rights pursuant to an escrow agreement
pertaining to amounts owing to an obligor; providing specific or general
financial or other advice, suggestions, or guidance; and exercising any right
or remedy that the holder is entitled to by law or under any warranties,
covenants, conditions, representations, or promises from the borrower.
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(iii) |
A holder does not
participate in the management of a property by taking a voluntary action under
this chapter and rules adopted under it. |
(iv) |
A holder who, after taking title to a
property, conducts or causes to be conducted all activities occurring at the
property not related to the investigation or remediation of releases or
threatened releases of hazardous substances or petroleum at or upon the
property in compliance with the applicable requirements of Chapters 3704.,
3714., 3734., 3737., 3750., 3751., 6109., and 6111. of the Revised Code and
rules adopted under them does not participate in the management of the
property. |
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(F) |
(1) |
Indicia of
ownership that are held primarily to protect a security interest include,
without limitation, legal or equitable title acquired through or incident to
foreclosure and its equivalents. As used in this section, "foreclosure and its equivalents"
includes purchase at a foreclosure sale; acquisition or assignment of title in
lieu of foreclosure; termination of a lease or other repossession; acquisition
of a right to title or possession; an agreement in satisfaction of the
obligation; or any other formal or informal manner by which the borrower
acquires title to or possession of the secured property regardless of whether
title to or possession of the property is acquired pursuant to law or under
warranties, covenants, conditions, representations, or promises of the
borrower. The indicia of ownership held after foreclosure continue to be
maintained primarily as protection for a security interest, provided that the
holder undertakes to sell property, re-lease property held pursuant to a lease
financing transaction whether by a new lease financing transaction or
substitution of the lessee, or otherwise divest itself of property in a
reasonably expeditious manner, using whatever commercially reasonable means are
relevant or appropriate with respect to the property taking into consideration
all facts and circumstances, and provided that the holder did not participate
in management of the property prior to foreclosure or its equivalents. For
purposes of establishing that a holder is seeking to sell property, re-lease
property held pursuant to a lease financing transaction whether by a new lease
financing transaction or substitution of the lessee, or divest a property in a
reasonably expeditious manner, the holder may use whatever commercially
reasonable means are relevant or appropriate with respect to the property or
may employ the means specified in this section. A holder that outbids, rejects,
or fails to act upon a bona fide, written offer of fair consideration for the
property as provided in this section is not considered to hold indicia of
ownership primarily to protect a security interest.
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(2) |
A holder who did not participate in management
prior to foreclosure and its equivalents may sell property, re-lease property
held pursuant to a lease financing transaction whether by a new lease financing
transaction or substitution of the lessee, liquidate, maintain business
activities, wind up operations, undertake any voluntary action under this
chapter and rules adopted under it, or take measures to preserve, protect, or
prepare the secured asset prior to sale or other disposition. The holder may
conduct any of these activities without voiding the exemption provided by this
section, subject to the requirements of this section.
(a) |
A holder establishes that the ownership
indicia maintained following foreclosure and its equivalents continue to be
held primarily to protect a security interest by, within twelve months
following foreclosure, listing the property with a broker, dealer, or agent who
deals with the type of property in question, or by advertising the property as
being for sale or disposition on at least a monthly basis in either a real
estate publication or a trade or other publication suitable for the property in
question, or a newspaper of general circulation in the area where the property
is located. For the purposes of division (F)(2)(a) of this section, the
twelve-month period begins to run from the time that the holder acquires a
marketable title, provided that the holder, after the expiration of any
redemption or other waiting period provided by law, was acting diligently to
acquire marketable title. If the holder fails to act diligently to acquire
marketable title, the twelve-month period begins to run on the date of
foreclosure and its equivalents. |
(b) |
A holder that outbids, rejects, or fails
to act upon an offer of fair consideration for the property establishes that
the ownership indicia in the secured property are not held primarily to protect
the security interest unless the holder is required, in order to avoid
liability under federal or state law, to make a higher bid, to obtain a higher
offer, or to seek or obtain an offer in a different manner. For the purposes of division (F)(2)(b) of this section:
(i) |
"Fair consideration," in the case of a
holder maintaining indicia of ownership primarily to protect a senior security
interest in the property, is the value of the security interest as described in
division (F)(2)(b)(i) of this section. The value of the security interest is
calculated as an amount equal to or in excess of the sum of the outstanding
principal, or the comparable amount in the case of a lease that constitutes a
security interest, owed to the holder immediately preceding the acquisition of
full title, or possession in the case of property subject to a lease financing
transaction, pursuant to foreclosure and its equivalents; plus any unpaid
interest, rent, or penalties whether arising before or after foreclosure and
its equivalents; plus all reasonable and necessary costs, fees, or other
charges incurred by the holder incident to work out, foreclosure and its
equivalents, retention, maintaining business activities of the enterprise,
preserving, protecting, and preparing the property prior to sale, re-lease of
property held pursuant to a lease financing transaction whether by a new lease
financing transaction or substitution of the lessee, or other disposition; plus
voluntary action costs incurred under this chapter and rules adopted under it;
plus any costs of conducting or causing to be conducted all activities
occurring at the property not related to the investigation or remediation of
releases or threatened releases of hazardous substances or petroleum at or upon
the property that are required under Chapters 3704., 3714., 3734., 3750.,
3751., 6109., and 6111. of the Revised Code and rules adopted under those
chapters; less any amounts received by the holder in connection with any
partial disposition of the property, net revenues received as a result of
maintaining the business activities of the enterprise, and any amounts paid by
the borrower subsequent to the acquisition of full title, or possession in the
case of property subject to a lease financing transaction, pursuant to
foreclosure and its equivalents. In the case of a holder maintaining indicia of
ownership primarily to protect a junior security interest, fair consideration
is the value of all outstanding higher priority security interests plus the
value of the security interest held by the junior holder, each calculated as
described in the provisions of division (F)(2)(b)(i) of this section applicable
to senior security interests. |
(ii) |
"Outbids, rejects, or fails to act on an offer of fair consideration" means the
holder outbids, rejects, or fails to act upon within ninety days after receipt
of a bona fide, firm, written offer of fair consideration for the property
received at any time after six months following foreclosure and its
equivalents. That six-month period begins to run from the time that the holder
acquires marketable title, provided that the holder, after the expiration of
any redemption or other waiting period provided by law, was acting diligently
to acquire marketable title. If the holder fails to act diligently to acquire
marketable title, that six-month period begins to run on the date of
foreclosure and its equivalents. For the purposes of division (F)(2)(b)(ii) of this section, a
"bona fide, firm, written offer" means a legally enforceable, commercially
reasonable cash offer solely for the foreclosed property, including all
material terms of the transaction, from a ready, willing, and able purchaser
who demonstrates to the holder's satisfaction the ability to perform.
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(3) |
(a) |
Provided that the holder did not
participate in management prior to foreclosure and its equivalents, and that
the holder complies with the requirements of this section during the period
following foreclosure and its equivalents, a holder in possession of a property
may incur civil liability in connection with its activities related to the
investigation or remediation of releases or threatened releases of hazardous
substances or petroleum at or upon such a foreclosed property only by arranging
for disposal or treatment of a hazardous substance or petroleum or by accepting
for transportation or disposing of hazardous substances or petroleum at a
facility selected by the holder. |
(b) |
Following foreclosure and its equivalents, a
foreclosing holder that directs or undertakes activities at the foreclosed
property under this chapter and rules adopted under it is not liable in a civil
action for the costs of investigating or remediating a release or threatened
release of hazardous substances or petroleum at or upon the property, except as
otherwise specifically provided in section
3746.29 of the Revised Code.
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(G) |
(1) |
This section does not create, and shall
not be construed as creating, a new cause of action against or substantive
legal right against a holder. |
(2) |
This section does not affect, and shall not be construed as affecting, any
immunities from civil liability or defenses established by another section of
the Revised Code or available at common law to which a holder may be entitled
under circumstances not covered by this section. |
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Effective Date:
09-28-1994.
(A) |
A
fiduciary or trustee who acquires ownership or control of property without
having owned, operated, or participated in the management of the property prior
to acquiring ownership or control of it is not liable for the costs of
conducting a voluntary action in a civil action brought under section
3746.23 of the Revised Code in
connection with a voluntary action undertaken at the property or for the costs
of identifying or remediating a release or threatened release of hazardous
substances or petroleum at or upon the property in a civil action otherwise
brought under the Revised Code or common law of this state, provided that both
of the following conditions apply:
(1) |
No
action or omission of the fiduciary or trustee constituting willful or wanton
misconduct or intentionally tortious conduct caused, contributed to, or
exacerbated a release or threatened release of hazardous substances or
petroleum at or upon the property; |
(2) |
After so acquiring ownership or control
of the property, the fiduciary or trustee conducts or causes to be conducted
all activities occurring at the property not related to the identification or
remediation of releases or threatened releases of hazardous substances or
petroleum at or upon the property in compliance with the applicable
requirements under Chapters 3704., 3714., 3734., 3737., 3750., 3751., 6109.,
and 6111. of the Revised Code and rules adopted under those chapters.
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|
(B) |
Such a fiduciary or
trustee who, after so acquiring ownership or control of property, conducts or
causes to be conducted all such nonremedial activities at the property in
compliance with the applicable requirements under those chapters and rules is
not required to comply with any provisions of those chapters and rules
pertaining to the identification or remediation of releases or threatened
releases of hazardous substances or petroleum at or upon the property and shall
not be subject to the issuance of an enforcement order, or a civil action for
injunctive relief, under any of those chapters requiring the identification or
remediation of any release or threatened release of hazardous substances or
petroleum at or upon the property. |
(C) |
Nothing in this section precludes the filing of
claims against the assets that constitute the estate or corpus of the trust
held by the fiduciary or the filing of claims under section
3746.23 of the Revised Code for
the costs of conducting a voluntary action at the property or the filing of
claims for the costs of remediation under other provisions of the Revised Code
or common law of this state against the fiduciary or trustee in its
representative capacity. |
(D) |
(1) |
This section does not create, and shall
not be construed as creating, a new cause of action against or substantive
legal right against a fiduciary or trustee. |
(2) |
This section does not affect, and shall not be
construed as affecting, any immunities from civil liability or defenses
established by another section of the Revised Code or available at common law
to which a fiduciary or trustee may be entitled under circumstances not covered
by this section. |
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Effective Date:
09-28-1994.
(A) |
Entering
into and participating in the voluntary action program under this chapter and
rules adopted under it does not constitute an admission of criminal liability
under the laws of this state or rules adopted under them or the ordinances,
resolutions, and rules of a political subdivision of this state or an admission
of civil liability under the Revised Code or common law of this state.
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(B) |
The fact that a person has
entered into or is participating in the voluntary action program under this
chapter and rules adopted under it is not admissible in any civil, criminal, or
administrative proceeding initiated or brought under Chapter 3704., 3714.,
3734., 3750., 3751., 6109., or 6111. of the Revised Code. |
(C) |
Any information, documents, reports, or data
produced, or any samples collected as a result of entering into and
participating in the voluntary action program under this chapter and rules
adopted under it are not admissible against the person undertaking the
voluntary action, and are not discoverable, in any civil or administrative
proceeding against the person undertaking the voluntary action, except a
judicial or administrative proceeding initiated under section
3746.22 of the Revised Code or
rules adopted under section
3746.04 of the Revised Code in
connection with an alleged violation of section
3746.20 of the Revised Code. This division does not apply to any person whose covenant not
to sue has been revoked under this chapter.
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(D) |
Entering into and participating in the voluntary
action program under this chapter and rules adopted under it shall not be
construed to be an acknowledgment that the conditions at the property
identified and addressed by the voluntary action constitute a threat or danger
to public health or safety or the environment. |
Effective Date:
09-28-1994.
(A) |
Nothing in
this chapter limits the authority of the director of environmental protection
to act under sections
3734.13 and
3734.20 to
3734.23 of the Revised Code.
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(B) |
Nothing in this chapter
limits the authority of the director to request that a civil action be brought
pursuant to the Revised Code or common law of this state to recover the costs
to the environmental protection agency for investigating or remediating a
release or threatened release of hazardous substances or petroleum at or from a
property where a voluntary action is being or has been conducted under this
chapter and rules adopted under it when the director determines that the
release or threatened release poses an imminent and substantial threat to
public health or safety or the environment. |
Effective Date:
09-28-1994.
(A) |
Nothing in
this chapter shall be construed as abrogating any obligation or right
established in federal law. |
(B) |
Nothing in this chapter shall be construed as releasing a person to whom the
director of environmental protection has issued any final findings and orders
under Chapter 3704., 3734., or 6111. of the Revised Code on or before September
28, 1994, from the obligation to comply with any requirements established in
the findings and orders. |
(C) |
Nothing in this chapter shall be construed as relieving a person from any
requirement established under the "Atomic Energy Act of 1954," 68 Stat. 919,
42 U.S.C.A. 2011, as amended, and regulations adopted
under it or under Chapter 3747. or 3748. of the Revised Code and rules adopted
under them, including, without limitation, any applicable requirement existing
when a voluntary action is undertaken to notify or coordinate remedial
activities with the United States nuclear regulatory commission or the
department of health in connection with radioactive materials regulated under
that act or those chapters. |
(D) |
Nothing in this chapter alters, abridges, abrogates, diminishes, or otherwise
limits the rights or protections afforded any shareholder, director, officer,
or employee, or, in the case of a partnership, any general or limited partner,
under the Revised Code and common law of this state. |
Effective Date:
09-08-1995.
Upon the written request of any person for information,
documents, reports, or data described on a list submitted to the director of
environmental protection pursuant to division (F) of section
3746.07 of the Revised Code or
rules adopted under division (B)(7)(e) of section
3746.04 of the Revised Code, as
applicable, the director, within a reasonable period of time after receipt of
the request, shall provide copies of the requested materials to the person. If
the requested materials are not on file in the offices of the environmental
protection agency, the director, promptly after receipt of the request, shall
send a written request to the certified professional who submitted the list
pursuant to that division or those rules to submit the requested materials to
the director within a specified reasonable period of time. The certified
professional shall submit the requested materials to the director within the
time specified in the director's request. Within a reasonable period of time
after the director receives the requested materials from the certified
professional, the director shall provide copies of them, at cost, to the person
who requested them and shall retain the originals in the agency's files.
Effective Date:
09-28-1994.
(A) |
Not later than September 1, 1996, and not later
than the first day of September of each subsequent year, the director of
environmental protection shall prepare and submit to the chairpersons of the
respective standing committees of the senate and house of representatives
primarily responsible for considering environmental and taxation matters a
report regarding the voluntary action program established under this chapter
and rules adopted under it and the tax abatements granted pursuant to sections
5709.87 and
5709.88 of the Revised Code for
properties where voluntary actions were conducted. Each annual report shall
include, without limitation, all of the following:
(1) |
Both of the following for each property for which a covenant not to sue was
issued under section
3746.12 of the Revised Code during
the preceding calendar year:
(a) |
The address
of the property and name of the person who undertook the voluntary action at
the property; |
(b) |
Whether the
applicable standards governing the voluntary action were the interim standards
established in section
3746.07 of the Revised Code or the
generic numerical clean-up standards established in rules adopted under
division (B)(1) of section
3746.04 of the Revised Code, were
established through the performance of a risk assessment pursuant to rules
adopted under division (B)(2) of section
3746.04 of the Revised Code, or
were set forth in a variance issued under section
3746.09 of the Revised
Code. |
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(2) |
All of the
following for each property for which a variance was issued under section
3746.09 of the Revised Code during
the preceding calendar year:
(a) |
The address
of the property and the name of the person to whom the variance was
issued; |
(b) |
A summary of
the alternative standards and terms and conditions of the variance and brief
description of the improvement in environmental conditions at the property that
is anticipated to result from compliance with the alternative standards and
terms and conditions set forth in the variance; |
(c) |
A
brief description of the economic benefits to the person to whom the variance
was issued and the community in which the property is located that are
anticipated to result from the undertaking of the voluntary action in
compliance with the alternative standards and terms and conditions set forth in
the variance. |
|
(3) |
The number
of audits performed under section
3746.17 of the Revised Code during
the preceding calendar year and, in connection with each of them, at least the
following information:
(a) |
The address
of the property in connection with which the audit was performed and the name
of the person who undertook the voluntary action at the property; |
(b) |
An
indication as to whether the audit was a random audit or was conducted in
accordance with the priorities established in rules adopted under divisions
(A)(9)(a) to (f) of section
3746.04 of the Revised Code and,
if the audit was conducted in accordance with those priorities, an indication
as to which of them resulted in the selection of the voluntary action for an
audit; |
(c) |
A brief
summary of the findings of the audit and any action taken by the environmental
protection agency as a result of those findings. |
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(4) |
The
number of covenants not to sue revoked during the preceding calendar year
through the operation of divisions (A)(2)(c) and (B) of section
3746.12, division (B)(2) of
section 3746.18, and division (B) of
section 3746.19 of the Revised Code and
for each property for which a covenant was revoked, at least both of the
following:
(a) |
The address
of the property affected by the revocation and name of the person who undertook
the voluntary action at the property; |
(b) |
The
reason for the revocation. |
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(5) |
The
amount of money credited to the voluntary action administration fund created in
section 3746.16 of the Revised Code during
the preceding fiscal year from the fees established in divisions (D) and (H) of
section 3746.07 and division (C) of
section 3746.13 of the Revised Code and
from civil penalties imposed under section
3746.22 of the Revised Code. The
report shall indicate the amount of money that arose from each of the fees and
from the civil penalties. The report also shall include the amount of money
expended from the fund during the preceding fiscal year by program category,
including, without limitation, the amount expended for conducting audits under
section 3746.17 of the Revised Code during
the preceding fiscal year. |
(6) |
For
each property that is receiving a tax abatement under section
5709.87 of the Revised Code for
the preceding tax year, the amount of the valuation exempted from real property
taxation for that tax year under that section. In order to comply with division
(A)(6) of this section, the director shall include in the annual report the
report required under division (B)(2) of this section.
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(7) |
For
each property that is receiving a tax abatement pursuant to an agreement with a
municipal corporation or county entered into under section
5709.88 of the Revised Code, the
amount of the valuation exempted from real or personal property taxation. In
order to comply with division (A)(7) of this section, the director shall
include in the annual report the report required under
division (C) of this section. |
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(B) |
(1) |
Not later than March 31, 1996, the
county auditor of each county in which is located any property that is
receiving a tax abatement under section
5709.87 of the Revised Code shall
report to the director of environmental protection for each such property both
of the following as applicable to tax year 1995:
(a) |
The
address of the property and the name of the owner as stated in the records of
the county auditor of the county in which the property is located; |
(b) |
The
amount of the valuation of the property that was exempted from real property
taxation under that section. Not later than the
thirty-first day of March of each subsequent year, each such county auditor
shall report the information described in those divisions to the director of
environmental protection for each property within the
county that is receiving a tax abatement under that section for the preceding
tax year.
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(2) |
Not later than July 1, 1996, and not later than the first day of July of each
subsequent year, the director of environmental
protection shall compile the information provided to the director under
division (B)(1) of this section applicable to the preceding tax year into a
report covering all of the counties in the state in which are located
properties receiving a tax abatement under section
5709.87 of the Revised Code for
the preceding tax year . |
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(C) |
Not later than July 1, 1996, and not later than the first day of July of each
subsequent year, the director of environmental
protection shall compile the information provided to the director by
municipal corporations and counties under division (A) of section
5709.882 of the Revised Code
applicable to the preceding calendar year into a report covering, by county,
all of the municipal corporations and counties in this state in which are
located properties receiving a tax abatement pursuant to an agreement entered
into under section
5709.88 of the Revised Code
. |
Amended by
129th General AssemblyFile No.129, SB 314,
§1, eff.
9/28/2012.
Effective Date:
09-28-1994; 12-30-2004; 06-27-2005
(A) |
Whoever
recklessly violates section
3746.15 of the Revised Code in a
manner that otherwise would constitute a violation of Chapter 3734. of the
Revised Code or rules adopted under it, or knowingly violates that section in a
manner that otherwise would constitute a violation of Chapter 3704., 3714., or
6111. of the Revised Code or rules adopted under any of those chapters, is
guilty of a felony and shall be fined at least ten thousand dollars, but not
more than twenty-five thousand dollars, or imprisoned for at least two years,
but not more than four years, or both. Each day of violation is a separate
offense. Upon a second or subsequent conviction for such an offense, the
offender shall be fined at least twenty-five thousand dollars, but not more
than fifty thousand dollars, or imprisoned for at least two years, but not more
than four years, or both. |
(B) |
Whoever knowingly violates section
3746.20 of the Revised Code is
guilty of a felony and shall be fined at least ten thousand dollars, but not
more than twenty-five thousand dollars, or imprisoned for at least two years,
but not more than four years, or both. Each violation is a separate offense.
Upon a second or subsequent conviction for such an offense, the offender shall
be fined at least twenty-five thousand dollars, but not more than fifty
thousand dollars, or imprisoned for at least two years, but not more than four
years, or both. |
Effective Date:
09-28-1994.