This website publishes administrative rules on their effective dates, as designated by the adopting state agencies, colleges, and
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| Rule |
Rule 3737-1-01 | Notice of administrative rules hearing.
(A) Public notice of the intention of the
petroleum underground storage tank release compensation board to consider
adopting, amending, or rescinding a rule in accordance with divisions (A) to
(E) of section 119.03 of the Revised Code shall be published in the register of
Ohio (www.registerofohio.state.oh.us) pursuant to division (A) of section
119.03 of the Revised Code. (B) The public notice shall specify the
date, time, and place of the hearing and shall include: (1) A statement of the
intention to consider adopting, amending, or rescinding a rule and the purpose
or reason therefore; (2) A synopsis of the
proposed rule, amendment, or rescission or a general statement as to the
subject to which it relates. (C) A copy of the public notice shall be
provided by the board to any person who requests a copy, provides an email
address, mailing address or fax number, and, if appropriate, pays the cost of
copying and mailing.
Last updated September 9, 2024 at 2:27 PM
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Rule 3737-1-02 | Public meetings.
(A) Meetings of the petroleum underground
storage tank release compensation board, in addition to the meetings required
by section 3737.90 of the Revised Code, may be held at the call of the chairman
or vice-chairman or upon a majority vote of a quorum of the members present at
a meeting. (B) Any person desiring to determine the
time, place or purpose of any meeting of the board, may do so by accessing the
board's website at www.petroboard.org or contacting the chairman or
vice-chairman of the board or personnel employed by the board. (C) Any person may provide an email
address and be placed on an email list for advance notification of all meetings
of the board or meetings at which any specific type of public business is to be
discussed. The requestor may request notification be provided by fax or
first-class mail. Any person requesting notification by first-class mail shall
provide a postage-prepaid self-addressed envelope and pay the cost of
copying. (D) Public notice specifying the date, time and place of all
meetings of the board shall be posted on the board's website at
www.petroboard.org and at its office.
Last updated September 9, 2024 at 2:27 PM
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Rule 3737-1-03 | Definitions.
(A) The following definitions are
provided for the purposes of clarifying the meaning of certain terms as they
appear in sections 3737.90 to 3737.98 of the Revised Code and rules 3737-1-01
to 3737-1-23 of the Administrative Code. (1) "Applicant"
means the responsible person for an underground storage tank system who submits
an application on a form prescribed by the director for fund payment of, or
reimbursement for, corrective action costs for an accidental release of
petroleum or compensation paid or to be paid to third parties for bodily injury
or property damages. (2) "Board"
means the petroleum underground storage tank release compensation
board. (3) "Bodily
injury" means injury to the body or sickness or disease contracted by a
person as the result of an accidental release of petroleum and recoverable
pursuant to division (C) of section 3737.92 of the Revised Code. Bodily injury
does not include the negligent infliction of emotional distress. (4) "Costs" means actual
expenses incurred, paid, and documented. (5) "Confirmed
release" means a "confirmed release" as defined in rule
1301:7-9-13 of the Administrative Code. (6) "Debt service account or
accounts" means an account or accounts established for the purpose of
making bond principal and interest payments on a regular basis and as may be
required by bond covenants. (7) "Debt service reserve account or
accounts" means a reserve account or accounts established for the purpose
of making bond principal and interest payments on a non regular, emergency
basis and as may be required by bond covenants. (8) "Deductible" means the
standard, non-reduced amount which is deducted from the responsible
person's assurance coverage pursuant to division (D)(3) of section 3737.91
of the Revised Code and established through division (E) of section 3737.92 of
the Revised Code. (9) "Director" means the
director of the petroleum underground storage tank financial assurance
fund. (10) "Fee" means: (a) The annual petroleum underground storage tank financial
assurance fee; (b) The supplemental petroleum underground storage tank financial
assurance fee; (c) Late payment fees; (d) Transfer fee; (e) Any and all costs for the collection of delinquent accounts;
or (f) Any other fee as established by the board. (11) "Financial audit" means an
examination of the books, vouchers, and records of a responsible person by the
director to determine compliance with this chapter. (12) "Financial responsibility"
means proof of financial accountability as a condition to acquiring eligibility
to the fund in accordance with rule 1301:7-9-05 of the Administrative Code
adopted by the fire marshal pursuant to section 3737.882 of the Revised
Code. (13) "Fire marshal" means the
fire marshal of the state of Ohio. (14) "Fiscal year" means the
time period July first through June thirtieth. (15) "Imminent hazard" means the
appearance of threatened and impending risk or peril. (16) "Indemnify" means to
restore or save harmless the board from a loss by payment or replacement to the
board any monies advanced or received from any other party, including, but not
limited to, the other parties' insurer or the responsible person's
insurer, for the payment of corrective action costs or third party compensation
for which the board has reimbursed or will reimburse the responsible person or
has compensated or will compensate any third party for bodily injury or
property damage. (17) "Markup" means an amount
charged by contractors or consultants beyond the actual cost of labor,
equipment, or materials, for management, supervision, or administration of the
corrective action activities performed. (18) "Obligated account" means
monies segregated and maintained, on a year by year basis, for reimbursing
necessary corrective action costs. (19) "Obligations" mean
undertakings by the board to reimburse or pay a responsible person or the
designee of the responsible person. (20) "Primary consultant" means
a person or organization hired, by or through the responsible person, for
principal control of corrective action activities at the release
site. (21) "Primary contractor" means
a person or organization hired, by or through the responsible person, for
principal control of corrective action activities at the release
site. (22) "Program task" means one of
the tasks defined by rule 3737-1-12 of the Administrative Code. (23) "Property damage" means
actual and reasonable, incurred or pending expenses for damage to property as
the result of an accidental release of petroleum that are not covered by
insurance and are recoverable pursuant to division (C) of section 3737.92 of
the Revised Code. The following items are a non exhaustive list of items
specifically excluded from property damage: loss of profits, loss of business,
taxes, utility expenses, punitive damages, exemplary damages, telephone,
television, internet, or cable and/or satellite fees, attorney fees or all
costs of litigation, including but not limited to court costs, depositions,
experts and attorney fees. (24) "Reduced deductible" means
the reduced amount which is deducted from the responsible person's
assurance coverage pursuant to division (D)(3) of section 3737.91 of the
Revised Code and established through division (F) of section 3737.92 of the
Revised Code. (25) "Release" means a
"release" as defined in rule 1301:7-9-13 of the Administrative
Code. (26) "Release
incident" means a "release," "suspected release," or
"confirmed release," whichever is first discovered. (27) "Responsible person" means
a "responsible person" as defined in division (N) of section 3737.87
of the Revised Code. (28) "Subcontractor" means a
person or organization, other than the primary contractor or primary consultant
or a subsidiary thereof, which, at the request of the primary contractor or
primary consultant, has undertaken one or more corrective action activities for
corrective action at the release site under direction of the primary contractor
or primary consultant. Subcontractors do not include persons or entities whose
only involvement related to the corrective action is the supply of material or
equipment. (29) "Subrogation" means the
board's right to recover costs of corrective actions and compensation to
third parties for bodily injury or property damage that the board has paid or
will pay to a responsible person or a third party from any other party,
including, but not limited to, the other party's insurer and the
responsible person's insurer. (30) "Suspected release" means a
"suspected release" as defined in rule 1301:7-9-13 of the
Administrative Code. (31) "Tank population" means the
number of tanks as defined by division (O) of section 3737.87 of the Revised
Code in existence in the state of Ohio at any given time. (32) "Technical audit" means an
examination of the books, vouchers, and records of a responsible person to
determine if the work performed was necessary to meet the requirements of the
fire marshal or an order of the director. (33) "Unclaimed monies trust
account" means a trust account established pursuant to section 9.39 of the
Revised Code for holding monies unclaimed by the rightful owner. (34) "Unobligated balance" means
monies which have not been placed in the obligated account, the debt service
account or accounts, the debt service reserve account or accounts, the
unclaimed monies trust account, or used to purchase certificates of deposit for
linked deposits. The unobligated balance includes the balance of monies which
may be used to retire bonds, pay third-party bodily injury or property damage
claims related to the accidental release of petroleum, to purchase certificates
of deposit for linked deposits, to fund the obligated account, to fund the debt
service account or accounts, to fund the debt service reserve account or
accounts, or for various other expenses the board may incur related to
administering sections 3737.90 to 3737.98 of the Revised Code. (35) "Year" means twelve
consecutive months.
Last updated November 20, 2024 at 3:27 PM
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Rule 3737-1-04 | Annual petroleum underground storage tank financial assurance fee, certification of compliance, and financial responsibility.
(A) Effective April 1, 1991, and each
year thereafter in which the unobligated balance of the financial assurance
fund does not exceed forty-five million dollars on the date of the board's
determination of the annual financial assurance fee for the succeeding fiscal
year, the board shall assess a fee for each tank comprising an underground
storage tank or an underground storage tank system that contains or has
contained petroleum and for which a responsible person is required to
demonstrate financial responsibility. In the event that the unobligated balance of the
financial assurance fund exceeds forty-five million dollars on the date of the
board's determination of the annual financial assurance fee for the
succeeding fiscal year, the board may assess a fee in the year to which the
determination applies only to the extent required in or by, or necessary to
comply with covenants or other requirements in, revenue bonds issued under
sections 3737.90 to 3737.948 of the Revised Code or in proceedings or other
covenants or agreements related to such bonds. (B) The basis for the calculation of the
annual fee includes, but is not limited to, the amount needed to meet financial
soundness objectives set forth in division (C) of section 3737.91 of the
Revised Code. (C) The director shall notify each
responsible person by May first of each year of the annual fee. In the year in
which an annual fee is not assessed, the director will provide reasonable
notification to responsible persons of the non-assessment of fees. (D) The annual fee is due no later than
July first of each year in which an annual fee is imposed. In the event the
director determines that a responsible person fails to pay the annual fee by
July first of the year in which the fee is imposed, the director shall notify
the responsible person of the non-payment. If the responsible person fails to
submit the annual fee within thirty days of the date the notification of
non-payment was mailed, the director shall issue an order directing the
responsible person to pay the annual fee and a late fee of no more than one
thousand dollars per tank. If the responsible person fails to comply with the
order within thirty days after the issuance of the order, the director shall
notify the fire marshal of the non-compliance and may request the attorney
general to bring an action for appropriate relief. No retroactive coverage
shall be extended in situations where responsible persons have initially failed
to pay fees but later did so, regardless of whether they received notification
by the director of such failure. (E) Except as limited by rule 3737-1-04.1
of the Administrative Code, upon receipt of full payment of the annual fee and
any past fees owed, as determined by the director, upon demonstration of
financial responsibility as required by rule 1301:7-9-05 of the Administrative
Code, and upon certification that the responsible person is in compliance with
applicable rules for petroleum underground storage tanks adopted by the fire
marshal under section 3737.88 of the Revised Code, the director shall issue a
certificate of coverage. Full payment of the annual fee and any past fees owed,
as determined by the director, demonstration of financial responsibility, and
certification of compliance with the fire marshal's rules for the
succeeding fiscal year on or before July first will entitle the responsible
person to a certificate of coverage in effect for the fiscal year. Full payment
of the annual fee and any past fees owed, as determined by the director,
demonstration of financial responsibility, and certification of compliance with
the fire marshal's rules for the current fiscal year after July first will
result in a certificate of coverage for that fiscal year effective on and after
the date the board received full payment due, demonstration of financial
responsibility, and certification of compliance with the fire marshal's
rules. (F) (1) In the event an
underground storage tank is installed, the responsible person shall immediately
notify the director upon introducing a regulated petroleum product into the
underground storage tank. In the event that an underground storage tank exists
for which a certificate of coverage was not issued in the previous fiscal year,
due to an omission by the responsible person, the responsible person shall
immediately notify the director. Upon receipt of notice of a newly installed or
existing underground storage tank, as required by this paragraph of this rule,
the director shall notify the responsible person of the assessment of any
applicable fees, including but not limited to, the annual fee for the fiscal
year in which a regulated petroleum product was first introduced into the
underground storage tank or July 1, 1989, whichever is later, and any
subsequent fiscal years. No certificate of coverage will be issued until the
responsible person notifies the director of any newly installed or any existing
underground storage tank for which a certificate of coverage is not currently
in place, pays the fees assessed, demonstrates financial responsibility,
certifies compliance with the fire marshal's rules, and, if applicable,
complies with rule 3737-1-04.1 of the Administrative Code. (2) In the event
ownership of an underground storage tank is transferred, the new responsible
person shall notify the director within thirty days of the date of the
transfer. Upon receipt of notice of a transfer of an underground storage tank
as required by this paragraph of this rule, the director shall notify the new
responsible person of the assessment of any applicable fees, including, but not
limited to, any fees outstanding at the time of the transfer of the underground
storage tank, as determined by the director, any annual fees outstanding for
the fiscal year in which the transfer occurred and any subsequent fiscal years
of ownership, and a transfer fee of five hundred dollars per
facility. (a) If a certificate of coverage is in effect at the time of the
transfer and the new responsible person notifies the director as required by
this rule, pays the transfer fee, demonstrates financial responsibility, and
certifies compliance with the fire marshal's rules within thirty days of
the date the notification of assessment was mailed, the certificate of coverage
shall be effective as of the date ownership of the underground storage tank
transferred. Where outstanding fees exist at the time of the transfer, the
certificate of coverage is null and void for purposes of coverage. (b) If a certificate of coverage is not in effect at the time of
the transfer or the new responsible person fails to notify the director of the
transfer as required by this rule, no certificate of coverage will be issued
until the new responsible person notifies the director of the transfer, pays
the fees assessed, demonstrates financial responsibility, certifies compliance
with the fire marshal's rules, and, if applicable, complies with rule
3737-1-04.1 of the Administrative Code. (3) The responsible
person shall pay the fees assessed no later than thirty days from the date the
notification of assessment was mailed. If the responsible person fails to
submit the annual fees within thirty days of the date the notification of
assessment was mailed, the director shall notify the responsible person of the
nonpayment. If the responsible person fails to submit the annual fees within
thirty days of the date the notification of non-payment was mailed, the
director shall issue an order directing the responsible person to pay the
annual fees and a late fee of no more than one thousand dollars per tank. If
the responsible person fails to comply with the order within thirty days after
the issuance of the order, the director shall notify the fire marshal of the
non-compliance and may request the attorney general to bring an action for
appropriate relief. Where a responsible person has failed to notify the
director as required by this rule, the director is not required to notify the
responsible person of fees owed. (G) (1) The failure of the
responsible person to do any of the following will result in the non-issuance
or revocation of a certificate of coverage: (a) Pay any annual fee authorized by division (B) of section
3737.91 of the Revised Code or supplemental fee authorized by division (C) of
section 3737.91 of the Revised Code; (b) Demonstrate and maintain financial responsibility as required
by rule 1301:7-9-05 of the Administrative Code for the deductible or, when
appropriate, the reduced deductible established under rule 3737-1-06 of the
Administrative Code; (c) Certify and maintain compliance with applicable rules for
petroleum underground storage tank systems adopted by the fire marshal under
section 3737.88 of the Revised Code for each tank for which a certificate of
coverage is sought; (d) Comply with rule
3737-1-04.1 of the Administrative Code, if applicable; (e) Pay any fee assessed pursuant to this chapter;
or (f) Pay any fees determined by the director to be
owed. (2) Where a certificate
of coverage is to be denied because the criteria of this rule for issuance are
not satisfied, the director shall issue a notice of pending denial to the
responsible person. The responsible person shall have thirty days from the
mailing of the notice to correct the deficiency. If, after thirty days from the
mailing of the notice, the responsible person fails to correct the deficiency,
the director shall issue a determination of denial. Once a certificate of coverage has been issued,
it may be revoked at any time upon a finding by the director that the criteria
of this rule for issuance are not satisfied. Where a certificate of coverage is
to be revoked, the director shall issue a notice of pending revocation to the
responsible person. The responsible person shall have thirty days from the
mailing of the notice to correct the deficiency. If, after thirty days from the mailing of the
notice, the responsible person fails to correct the deficiency, the director
shall issue a determination of revocation. The director shall notify the fire marshal of
any determination issued pursuant to this rule. Where the requirements of this rule are not
satisfied at the time of a release incident, the certificate of coverage is
null and void for purposes of coverage and the responsible person is not
eligible for reimbursement from the fund, regardless of whether the certificate
of coverage has been revoked. (H) A responsible person may file with
the board written objections to any order or determination of the director
issued pursuant to this rule. If the written objection is received by the board
within thirty days of the date of mailing of the order or determination, the
board shall appoint a referee to conduct an adjudication hearing in accordance
with section 119.09 of the Revised Code. (I) The amount of the annual fee is three
hundred fifty dollars per tank. (J) A responsible person shall maintain
with the director a current mailing address at which determinations, notices,
and orders may be sent. Any determination or order shall be mailed by certified
mail to the responsible person's address on file with the board. If the
certified mail is returned unclaimed, the order or determination shall be
served upon the responsible person in accordance with section 119.07 of the
Revised Code.
Last updated September 9, 2024 at 2:27 PM
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Rule 3737-1-04.1 | Coverage reinstatement.
Effective:
January 1, 2019
(A) Where the board has not issued a
valid certificate of coverage to a responsible person for a given underground
storage tank, for the prior two or more consecutive fiscal years, the
responsible person shall: (1) Comply with the
requirements of rule 3737-1-04 of the Administrative Code; and (2) Certify that, prior
to payment, no release has been suspected or confirmed from the underground
storage tank system for which coverage is being sought, or any known release is
in compliance with the requirements of rule 1301:7-9-13 of the Administrative
Code. (B) The director shall verify the
responsible person is in compliance with applicable rules for petroleum
underground storage tank systems adopted by the fire marshal under section
3737.88 of the Revised Code for each tank for which a valid certificate of
coverage has not been issued for the prior two or more consecutive fiscal
years. Where the director determines that the responsible person is not in
compliance with the fire marshal's rules for the underground storage tank
system for which coverage is being sought, the certificate of coverage shall be
denied in accordance with paragraph (G)(2) of rule 3737-1-04 of the
Administrative Code. (C) Nothing in any part of this rule shall be interpreted to
allow retroactive coverage for releases suspected or confirmed prior to the
effective date of a valid certificate of coverage. (D) The rights, limitations, responsibilities, and requirements
of rule 3737-1-04 of the Administrative Code in acquiring and maintaining a
valid certificate of coverage apply to any certificate of coverage sought and
obtained under this rule.
Last updated September 9, 2024 at 2:27 PM
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Rule 3737-1-05 | Supplemental petroleum underground storage tank financial assurance fee.
Effective:
November 30, 2009
(A) In any fiscal year in which the board finds that the unobligated balance in the financial assurance fund is less than fifteen million dollars, the board may assess a supplemental fee for each tank comprising an underground storage tank or an underground storage tank system that contains or has contained petroleum and for which a responsible person is required to demonstrate financial responsibility. (B) The basis for the calculation of the supplemental fee will include but will not be limited to the amount needed to meet financial soundness objectives set forth in division (C) of section 3737.91 of the Revised Code. (C) The director of the fund shall notify each responsible person of the supplemental fee no less than thirty days before the date on which the supplemental fee is due. (D) The supplemental fee is due no later than thirty days from the date of the notification. In the event a responsible person fails to pay the fee within the thirty-day period set forth in this rule, the director of the fund shall notify the responsible person of the non-payment. If the responsible person fails to submit the supplemental fee within thirty days after the notification of non-payment has been mailed, the director of the fund shall issue an order by certified mail directing the responsible person to pay the supplemental fee and a late fee of up to one thousand dollars per tank. If the responsible person fails to comply with the order within thirty days after the issuance of the order, the director shall notify the fire marshal of the non-compliance and may request the attorney general to bring an action for appropriate relief. (E) The director shall revoke the certificate of coverage upon the failure to pay the supplemental fee. (F) In the event that a new tank is placed in service after July first of the year in which the supplemental fee is imposed, the director shall notify the responsible person by certified mail of the assessment of the fee. The responsible person shall tender the fee assessed no later than thirty days from the date of notification of fees. If the responsible person fails to submit the fee within thirty days after the notification has been mailed, the director of the fund shall notify the responsible person of the non-payment. If the responsible person fails to submit the supplemental fee within thirty days after the notification of non-payment has been mailed, the director of the fund shall issue an order by certified mail directing the responsible person to pay the supplemental fee and a late fee of up to one thousand dollars per tank. If the responsible person fails to comply with the order within thirty days after the issuance of the order, the director shall notify the fire marshal of the non-compliance and may request the attorney general to bring an action for appropriate relief. (G) A responsible person may file with the board written objections to the order of the director no later than thirty days from the mailing of the order. The board, upon receipt of the objections, shall appoint a referee to conduct an adjudication hearing in accordance with section 119.09 of the Revised Code.
Last updated September 9, 2024 at 2:28 PM
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Rule 3737-1-06 | The deductible and the reduced deductible.
Effective:
November 30, 2009
(A) The deductible is fifty-five thousand dollars, which deductible may thereafter be modified by the board pursuant to rule 3737-1-15 of the Administrative Code. (B) Any responsible person owning, or owning or operating, a total of six or fewer tanks may purchase the reduced deductible of eleven thousand dollars, which reduced deductible may thereafter be modified by the board pursuant to rule 3737-1-15 of the Administrative Code, for all tanks owned by the person eligible to elect the reduced deductible. The additional fee due for the reduced deductible shall be two hundred dollars per tank. (C) If a responsible person discovers one or more underground storage tanks, which were previously unknown to the responsible person and which have not been registered with the fire marshal pursuant to rule 1301:7-9-04 of the Administrative Code, on his property, the discovered underground storage tank(s) shall not affect the responsible person's qualification for the reduced deductible for any fiscal year prior to and including the fiscal year of discovery. If the responsible person is required to demonstrate financial responsibility for the discovered underground storage tank(s), the discovered tank(s) shall be used to determine the responsible person's qualification for the reduced deductible in succeeding fiscal years.
Last updated November 20, 2024 at 3:27 PM
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Rule 3737-1-07 | Establishing fund eligibility for corrective action costs.
(A) As a prerequisite to determining fund
payment of or reimbursement for corrective action costs for an accidental
release of petroleum, the director of the fund shall issue a determination of
eligibility for payment of or reimbursement for such costs where all of the
following conditions are established: (1) Receipt of an
application for eligibility, from a responsible person, within one year from
the date the release incident was required to be reported to the fire
marshal; (2) At the time of the
release incident, a responsible person possessed a valid certificate of
coverage, issued pursuant to rule 3737-1-18 of the Administrative Code and the
validity of which has been maintained pursuant to paragraph (E) of rule
3737-1-04 of the Administrative Code, for the petroleum underground storage
tank system from which the release occurred; (3) The corrective action
performed or to be performed has been authorized by the fire marshal under
section 3737.882 of the Revised Code and rules adopted under that
section; (4) The costs of
performing the corrective action are necessary to comply with the rules of the
fire marshal adopted under sections 3737.88 and 3737.882 of the Revised Code
governing corrective actions; (5) One of the following
applies: (a) At the time of the release incident, the petroleum
underground storage tank system from which the release occurred was registered
in compliance with rules adopted by the fire marshal under section 3737.88 of
the Revised Code; (b) The fire marshal has recommended that payment or
reimbursement be made because good cause existed for the responsible
person's failure to have so registered the petroleum underground storage
tank system, and the responsible person has registered the petroleum
underground storage tank system with the fire marshal and paid all back
registration fees payable under those rules for registration of the system from
the time the responsible person should have, but failed to register the
system. (6) The fire marshal has
determined that, when the claim was filed, a responsible person was in
compliance with all orders issued under sections 3737.88 and 3737.882 of the
Revised Code regarding the petroleum underground storage tank system from which
the release occurred; (7) A responsible person
demonstrates financial responsibility for the deductible amount applicable
under section 3737.91 of the Revised Code for the petroleum underground storage
tank system from which the release occurred; (8) The responsible
person has not falsified any attestation contained on a registration
application required by rules adopted under section 3737.88 of the Revised
Code; (9) The responsible
person has met the petroleum release, suspected release, and confirmed release
reporting requirements set forth in rule 1301:7-9-13 of the Administrative
Code; and (10) At the time of the
release incident the petroleum underground storage tank system from which the
release occurred was in compliance with rules, other than rules regarding
registration, adopted by the fire marshal under section 3737.88 of the Revised
Code. (B) Where an eligibility application is
incomplete, the director or the director's designee may make a written
request for additional information. The responsible person shall supply the
additional information within sixty days from the date of the request. If the
responsible person fails to respond within sixty days from the date of the
request, the director or the director's designee shall make a second
request for the information and shall notify the responsible person that
failure to respond within thirty days from the date of the second request shall
result in the denial of eligibility. If the responsible person fails to provide
the additional information within thirty days from the date the second request
is sent, eligibility shall be denied. (C) A responsible person determined eligible pursuant to
paragraph (A) of this rule for fund payment or reimbursement shall maintain
eligibility to the fund by doing all of the following: (1) Maintaining all
records required to be kept by this chapter; (2) Paying all fees
assessed; (3) Maintaining
compliance with all orders issued pursuant to sections 3737.88 and 3737.882 of
the Revised Code; and (4) Maintaining
compliance with the applicable rules for petroleum underground storage tank
systems adopted by the fire marshal under section 3737.88 of the Revised Code
for the underground storage tank system from which the release
occurred. (D) A responsible person may transfer his rights for
reimbursement of eligible costs to another party upon notification and approval
of the director. The responsible person is liable for all requirements of this
chapter and fund eligibility must be maintained. The transfer of rights does
not limit the liabilities of the responsible person. Nothing within this
paragraph of this rule shall be deemed to grant standing, to a non responsible
person, to bring a claim against the petroleum financial assurance
fund. (E) When the director has reason to believe that a responsible
person determined eligible to claim against the financial assurance fund
pursuant to paragraph (A) of this rule, has failed to maintain fund eligibility
pursuant to paragraph (C) of this rule, the director shall issue a notice of
pending fund ineligibility. The responsible person shall have thirty days from
the mailing of such notice to either provide evidence of compliance with all
fund eligibility requirements or take all necessary steps to correct the
non-compliance. If, after thirty days from the mailing of the
notice of pending fund ineligibility, the responsible person fails to resolve
the non-compliance, the director shall issue a determination of fund
ineligibility immediately nullifying any previously-determined eligibility for
disbursement from the financial assurance fund. The director shall provide the
fire marshal with a copy of the determination issued pursuant to this
paragraph. (F) A responsible person or the fire marshal may file written
objections with the board to the director's determination of fund
ineligibility no later than thirty days from the mailing of the determination
of fund ineligibility. The board upon receipt of the objections shall appoint a
referee to conduct an adjudication hearing on the determination in accordance
with section 119.09 of the Revised Code. (G) Determination of fund eligibility does not constitute an
obligation for reimbursement from the fund.
Last updated November 20, 2024 at 3:27 PM
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Rule 3737-1-08 | Disbursement of the financial assurance fund.
(A) Once eligibility of the fund has been
determined in accordance with rule 3737-1-07 or 3737-1-19 of the Administrative
Code and the director of the fund has determined that an application for
reimbursement is complete, obligations of the fund will not occur unless and
until the deductible or the reduced deductible, as applicable, set forth in
rule 3737-1-06 of the Administrative Code has been met. Costs determined to be
non-reimbursable pursuant to paragraph (A) of rule 3737-1-09 of the
Administrative Code shall not be applied toward the responsible person's
deductible or reduced deductible. Reimbursable costs covered by insurance
policies or recoverable from any other party shall be applied toward the
responsible person's deductible or reduced deductible. (B) Obligations of the fund for eligible
claims will be made on a first-come, first-served basis as determined by
receipt of a completed application in accordance with rule 3737-1-12 of the
Administrative Code, except when: (1) The fire marshal
requests approval of an accelerated review on the basis of the threat posed to
human health or the environment by the release to which the claim
applies; (2) An accelerated review
is granted under paragraph (D) of this rule; or (3) The director
determines that efficiency and cost savings will be better served by a non
first-come, first-served review. Notwithstanding any of the above provisions, the
director may prioritize claims for releases that have received no further
action status. (C) The board may by resolution provide
for the payment of claims by installments in a manner and for a period of time
it deems appropriate when the board concludes that such action is necessary to
maintain the financial soundness of the financial assurance fund. (D) A responsible person may file with
the board a request for an accelerated review of a claim by submitting an
application for hardship status on a form prescribed by the director, and by
providing financial documentation to the director that demonstrates approval of
hardship status is necessary to prevent an imminent financial hardship to the
responsible person. (1) As a result of such
request, the director may: (a) Seek additional information from the responsible person to
demonstrate imminent financial hardship, including but not limited to, a
statement of assets and liabilities and/or a detailed listing of living
expenses and income; (b) Request the responsible person sign a release to allow the
director to obtain or inspect federal and state tax records; and (c) Request copies of any contracts existing between the
responsible person and his/her contractors and subcontractors remediating the
site. (2) A responsible person who refuses to
provide the requested information shall be denied hardship status. Any
documentation received by the board for a hardship application is a public
record unless it is specifically exempt under section 149.43 of the Revised
Code. (3) Upon review of financial data and/or
other information provided by the responsible person, the director shall
recommend to the board approval or denial of the request. The board may accept or reject the
director's recommendation. Should the board's action result in the
approval of hardship status, the approval shall be for two years from the date
of the board's action. A responsible person may file a subsequent request
for hardship status on or before the expiration of a two-year period of
hardship status. (4) The board may suspend or discontinue
the hardship program when it determines that doing so is in the interest of the
fund. Any hardship statuses that are currently in effect at the time the board
suspends or discontinues the hardship program shall remain effective until the
expiration of the two-year period from the date the application was
approved.
Last updated September 9, 2024 at 2:28 PM
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Rule 3737-1-09 | Limitations of fund coverage.
(A) Nothing in this chapter shall be
construed to authorize reimbursement for: (1) Costs of corrective
actions for releases prior to July 1, 1989; (2) Costs of corrective
action for a release for which eligibility for reimbursement was not sought or
the director has issued a determination denying eligibility for
reimbursement; (3) Litigation costs of
any kind incurred by a responsible person including, but not limited to:
litigation costs involving acquisition of site access; local, state, or federal
permit decisions; any ordinance, rule or regulation; or any order issued by the
fire marshal; (4) Costs associated
with: (a) Achieving compliance with the provisions of sections 3737.881
to 3737.98 of the Revised Code, with the exception of costs associated with
corrective action and compensation to third parties for expenses associated
with bodily injury or property damages caused by an accidental release of
petroleum; (b) Interest or carrying charges of any kind; (c) Insurance premiums other than specific policies or bonds
required for corrective action; (d) Studies or surveys of an underground storage tank site or on
property nearby other than from a site check or a tier 1 source investigation
conducted in accordance with rule 1301:7-9-13 of the Administrative Code;
(e) Corrective action costs which are determined to be
non-reimbursable as a result of an audit performed in accordance with this
chapter. (5) Costs incurred in
conducting corrective action for non-petroleum products or corrective action
for petroleum or petroleum products unrelated to a release from an assured
underground storage tank system; (6) Costs incurred in
conducting corrective action for a release from an unassured underground
storage tank system; (7) Costs not required
for performing corrective action completed in accordance with rules of the fire
marshal adopted under sections 3737.88 and 3737.882 of the Revised Code or,
where applicable, completed in accordance with an order which establishes
corrective action procedures and criteria for the site; (8) Costs covered by
insurance policies; (9) Costs associated with
the closure or removal of underground storage tank systems in compliance with
rule 1301:7-9-12 of the Administrative Code. Where closure or removal costs,
associated with rule 1301:7-9-12 of the Administrative Code, are intermingled
with corrective action costs and are not separately ascertainable, the director
shall determine corrective action costs to be reimbursed based upon a
reasonable standard; (10) Costs for corrective
action other than those costs which are usual, customary, and reasonable for
similar corrective action activities and under similar circumstances, as
determined from the fund's experience; (11) Costs for corrective
action not submitted in accordance with rule 3737-1-12 of the Administrative
Code; (12) Additional
corrective action costs for a release after a no further action letter has been
issued by the fire marshal for the subject release, unless the additional
corrective action activities are required by the fire marshal due to the
discovery of chemicals of concern, as defined by rule 1301:7-9-13 of the
Administrative Code, resulting from the original release but not reasonably
discovered prior to the issuance of the no further action letter. Under no
circumstances shall additional corrective action costs be reimbursed when the
original no further action letter for the subject release is rescinded more
than five years from the date it was issued; (13) Costs necessary for
performing corrective action authorized by the fire marshal under section
3737.882 of the Revised Code and rules adopted under that section greater than
fifty per cent of the usual, customary, and reasonable costs of the least
expensive alternative for similar corrective action activities and under
similar circumstances as determined from the fund's experience when
pre-approval is required by paragraph (A), (B), or (D) of rule 3737-1-12.1 of
the Administrative Code but pre-approval was not sought or
granted; (14) Undocumented
corrective action costs, unless the responsible person submits documentation to
support the corrective action costs within ninety days from the date that the
director or the director's designee requests such documentation in writing
pursuant to rule 3737-1-13 of the Administrative Code; (15) Costs for corrective
action and/or third-party claims where the responsible person has failed to
comply with rule 3737-1-22 of the Administrative Code that are greater than the
lesser of: (a) Fifty per cent of eligible corrective action and third-party
claim costs, as determined by the director; or (b) The total of eligible corrective action and third-party claim
costs, as determined by the director, minus the amount of the deductible and
minus the amount that has been or will be paid by any party to the responsible
person. (16) Cost for performing
corrective action not authorized by the fire marshal under section 3737.882 of
the Revised Code and rules adopted under that section; (17) Markup for any of
the following: (a) Costs of disposal, disposal facilities, and treatment
facilities; (b) Internal expenses including labor, supplies, per diem travel
expenses, and intra-company billings; (c) Charges for supplies; (d) Charges for materials; (e) Charges for equipment; (f) Charges for utilities; (g) Costs for
transportation of soil and backfill materials. (18) Costs that have been
or will be paid by any party under rule 3737-1-22 of the Administrative
Code. (B) The board, upon payment or
reimbursement from the fund to a responsible person for corrective action costs
or the cost of compensation to third parties for bodily injury or property
damage, is entitled by subrogation to all rights of the responsible person to
recover those costs from any other person.
Last updated November 20, 2024 at 3:27 PM
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Rule 3737-1-09.1 | Inclusions of fund coverage.
(A) The following costs shall be
specifically reimbursable: (1) Except where
prohibited by paragraph (A)(17) of rule 3737-1-09 of the Administrative Code,
markup on reimbursable subcontractor charges, including but not limited to the
following, but only to the extent that the total amount of all markups is not
greater than ten per cent of the reimbursable costs: (a) Drilling services; (b) Soil excavation services; (c) Utility locating services; and (d) Vacuum truck services. (2) Per diem for travel
costs directly related to corrective action at a release site, up to a maximum
amount, as established by the director, to reimburse the costs of mileage,
food, and lodging incurred by a primary consultant or primary contractor when
the release site is at a distance from the primary consultant's or primary
contractor's nearest office of business which, under state of Ohio travel
reimbursement policy, would allow for reimbursement. The costs of travel by
common carrier (i.e. plane, boat and bus) shall not be
reimbursable. (3) Notwithstanding
paragraph (A)(3) of rule 3737-1-09 of the Administrative Code, usual,
customary, and reasonable legal costs incurred by the responsible person for
the preparation, review or recording of an environmental covenant pursuant to
rule 1301:7-9-13 of the Administrative Code. (B) Nothing in any part of this rule
shall be interpreted to preclude coverage for corrective action costs or
third-party bodily injury or third-party property damage which are generally or
specifically included in coverage under Chapter 3737. of the Revised Code or
Chapter 3737. of the Administrative Code.
Last updated November 20, 2024 at 3:27 PM
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Rule 3737-1-10 | Financial audits.
Effective:
November 30, 2009
(A) The director or the director's designee may perform financial audits as necessary to ensure compliance with this chapter, to certify corrective action costs and to assess whether costs are reimbursable from the fund. Prior to any financial audit, the director shall give the responsible person written notice of the proposed audit. The responsible person shall make available to the director, or the director's designee, all records and documents which the director or the director's designee deems necessary to the completion of the audit. (B) The director shall upon completion of the audit prepare a written report of the findings. A copy of this report shall be sent to the responsible person and to the fire marshal. The responsible person may file written objections to the director's report within thirty days after the mailing of the director's report. The board, upon receipt of the objections, shall appoint a referee to conduct an adjudication hearing in accordance with section 119.09 of the Revised Code. Thereafter the board shall make a decision to approve, disapprove, or modify the referee's findings and recommendations. (C) Nothing within this rule shall be deemed to grant standing to a non-responsible person to bring a claim against the financial assurance fund.
Last updated September 9, 2024 at 2:29 PM
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Rule 3737-1-11 | Technical audits.
Effective:
November 30, 2009
(A) The director or the director's designee may conduct technical audits during reviews of applications for reimbursement to determine if the work performed was substantially in excess of that necessary to meet the requirements of the fire marshal, to ensure compliance with applicable rules and to verify site corrective actions. Prior to any technical audit, the director shall give the responsible person written notice of the proposed audit. The responsible person shall make available to the director or the director's designee all records and documents which the director or the director's designee deems necessary to the completion of the audit. (B) The director shall upon completion of the audit prepare a written report of the findings. A copy of this report shall be sent to the responsible person and to the fire marshal. The responsible person may file written objections to the director's report within thirty days after the mailing of the director's report. The board, upon receipt of the objections, shall appoint a referee to conduct an adjudication hearing in accordance with section 119.09 of the Revised Code. Thereafter the board shall make a decision to approve, disapprove, or modify the referee's findings and recommendations. (C) Nothing within this rule shall be deemed to grant standing to a non-responsible person to bring a claim against the financial assurance fund.
Last updated September 9, 2024 at 2:30 PM
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Rule 3737-1-12 | Application for reimbursement.
(A) Responsible persons shall file an
application on a form prescribed by the director for reimbursement for costs
actually incurred in conducting corrective action within one year from the
completion date of the program task, as described below. If the responsible
person fails to make a timely application for reimbursement under this rule,
the costs associated with the task shall be denied. (B) For purposes of submitting an
application for reimbursement for corrective actions performed under rule
1301:7-9-13 of the Administrative Code in effect prior to March 31, 1999, the
following are completion dates from which the one-year filing periods begin to
run for related program tasks: (1) The immediate
corrective action program task completion date shall be the date the release is
required to be reported to the fire marshal. The immediate corrective action
program task is comprised of those actions set forth in paragraphs (F) and (H)
of rule 1301:7-9-13 of the Administrative Code; (2) The free product
removal program task completion date shall be the date the last free product
removal report is required to be submitted to the fire marshal or, if no free
product removal reports are required, the completion date shall be the date the
release was required to be reported to the fire marshal. The free product
removal program task is comprised of those actions set forth in paragraph (G)
of rule 1301:7-9-13 of the Administrative Code; (3) The site assessment
program task completion date shall be the date the fire marshal determines site
assessment to be complete. The site assessment program task is comprised of
those actions set forth in paragraph (I) of rule 1301:7-9-13 of the
Administrative Code; (4) The remedial action
plan program task completion date shall be the date the fire marshal approves
the plan. The remedial action plan program task is comprised of those actions
set forth in paragraph (J) and paragraph (K) of rule 1301:7-9-13 of the
Administrative Code; and (5) The completion date
for the remedial action plan implementation program task and the on-going
system operation and maintenance program task shall be the date the fire
marshal issues a no further action determination. The remedial action plan
implementation program task and the on-going system operation and maintenance
program task are comprised of those actions set forth in paragraph (L) and
paragraph (M) of rule 1301:7-9-13 of the Administrative Code. (6) For any costs not
associated with a program task described in this paragraph, the associated
completion date shall be the earliest of: (a) A completion date specified by the fire marshal; (b) The date the fire marshal issues a no further action
determination; or (c) The date the work was completed. (C) For purposes of submitting an
application for reimbursement for corrective actions performed under rule
1301:7-9-13 of the Administrative Code in effect on or after March 31, 1999,
but before March 1, 2005, the following are completion dates from which the
one-year filing periods begin to run for related program tasks: (1) The immediate
response action program task completion date shall be the date the release is
required to be reported to the fire marshal. The immediate response action
program task is comprised of those actions set forth in paragraphs (G)(1),
(G)(3), and (G)(4) of rule 1301:7-9-13 of the Administrative Code; (2) The free product
removal program task completion date shall be the date the last free product
removal report is required to be submitted to the fire marshal or, if no free
product removal reports are required, the completion date shall be the date the
release was required to be reported to the fire marshal. The free product
removal program task is comprised of those actions set forth in paragraph
(G)(2) of rule 1301:7-9-13 of the Administrative Code; (3) The tier 1 evaluation
program task completion date shall be the date the tier 1 evaluation
notification, or the tier evaluation report if appropriate, is required to be
submitted to the fire marshal. The tier 1 evaluation program task is comprised
of those actions set forth in paragraphs (H), (I), (J) and (K) of rule
1301:7-9-13 of the Administrative Code; (4) The tier 2 evaluation
program task completion date shall be the date the tier 2 evaluation report is
required to be submitted to the fire marshal. The tier 2 evaluation program
task is comprised of those actions set forth in paragraphs (M) and (N) of rule
1301:7-9-13 of the Administrative Code; (5) The tier 3 evaluation
program task completion date shall be the date the tier 3 evaluation report is
required to be submitted to the fire marshal. The tier 3 evaluation program
task is comprised of those actions set forth in paragraph (O) of rule
1301:7-9-13 of the Administrative Code; (6) The completion date
for the remedial action plan implementation program task and the monitoring
plan program task shall be the date the fire marshal issues a no further action
determination. The remedial action plan implementation program task is
comprised of those actions set forth in paragraphs (S) and (T) of rule
1301:7-9-13 of the Administrative Code. The monitoring plan program task is
comprised of those actions set forth in paragraph (R) of rule 1301:7-9-13 of
the Administrative Code; and (7) For any costs not
associated with a program task described in this paragraph, the associated
completion date shall be the earliest of: (a) A completion date specified by the fire marshal; (b) The date the fire marshal issues a no further action
determination; or (c) The date the work was completed. (D) For purposes of submitting an
application for reimbursement for corrective actions performed under rule
1301:7-9-13 of the Administrative Code in effect on or after March 1, 2005, but
before September 1, 2017, the following are completion dates from which the
one-year filing periods begin to run for related program tasks: (1) The immediate
corrective action program task completion date shall be the date the release is
required to be reported to the fire marshal. The immediate corrective action
program task is comprised of those actions set forth in paragraphs (G)(1) and
(G)(2) of rule 1301:7-9-13 of the Administrative Code; (2) The free product
removal program task completion date shall be the date the last free product
removal report is required to be submitted to the fire marshal or, if no free
product removal reports are required, the completion date shall be the date the
release was required to be reported to the fire marshal. The free product
removal program task is comprised of those actions set forth in paragraph
(G)(3) of rule 1301:7-9-13 of the Administrative Code; (3) The tier 1 source
investigation program task completion date shall be the date the tier 1
delineation notification, tier 1 notification, or tier 1 evaluation report if
appropriate, is required to be submitted to the fire marshal. The tier 1 source
investigation program task is comprised of those actions set forth in paragraph
(H) of rule 1301:7-9-13 of the Administrative Code; (4) The tier 1
delineation program task completion date shall be the date the tier 1
investigation report is required to be submitted to the fire marshal. The tier
1 delineation program task is comprised of those actions set forth in paragraph
(I) of rule 1301:7-9-13 of the Administrative Code; (5) The tier 2 evaluation
program task completion date shall be the date the tier 2 evaluation report is
required to be submitted to the fire marshal. The tier 2 evaluation program
task is comprised of those actions set forth in paragraph (L) of rule
1301:7-9-13 of the Administrative Code; (6) The tier 3 evaluation
program task completion date shall be the date the tier 3 evaluation report is
required to be submitted to the fire marshal. The tier 3 evaluation program
task is comprised of those actions set forth in paragraph (M) of rule
1301:7-9-13 of the Administrative Code; (7) The completion date
for the interim response action program task associated with a tier evaluation
shall be the date the interim response action summary report is required to be
submitted to the fire marshal. The interim response action program task is
comprised of those actions set forth in paragraph (K) of rule 1301:7-9-13 of
the Administrative Code. (8) The completion date
for the remedial action plan preparation program task associated with a tier
evaluation shall be the date the remedial action plan is required to be
submitted to the fire marshal. The remedial action plan preparation program
task is comprised of those actions set forth in paragraphs (N)(1) and (N)(2) of
rule 1301:7-9-13 of the Administrative Code; (9) The completion date for the remedial
action plan implementation program task and the monitoring plan program task
shall be the date the fire marshal issues a no further action determination.
The remedial action plan implementation program task is comprised of those
actions set forth in paragraphs (N)(3) and (N)(4) of rule 1301:7-9-13 of the
Administrative Code. The monitoring plan program task is comprised of those
actions set forth in paragraph (O) of rule 1301:7-9-13 of the Administrative
Code; and (10) For any costs not associated with an
above described program task, the associated completion date shall be the
earliest of: (a) A completion date specified by the fire marshal; (b) The date the fire marshal issues a no further action
determination; or (c) The date the work was completed. (E) For purposes of submitting an
application for reimbursement for corrective actions performed under rule
1301:7-9-13 of the Administrative Code in effect on or after September 1, 2017,
the following are completion dates from which the one-year filing periods begin
to run for related program tasks: (1) The immediate
corrective action program task completion date shall be the date the immediate
corrective action report is required to be submitted to the fire marshal. The
immediate corrective action program task is comprised of those actions set
forth in paragraphs (G)(1) and (G)(2) of rule 1301:7-9-13 of the Administrative
Code; (2) The free product
removal program task completion date shall be the date the last free product
removal report is required to be submitted to the fire marshal or, if no free
product removal reports are required, the completion date shall be the date the
release incident was required to be reported to the fire marshal. The free
product removal program task is comprised of those actions set forth in
paragraph (G)(3) of rule 1301:7-9-13 of the Administrative Code; (3) The tier 1 source
investigation program task completion date shall be the date the tier 1
notification, or the tier 1 evaluation report if appropriate, is required to be
submitted to the fire marshal. The tier 1 source investigation program task is
comprised of those actions set forth in paragraph (H) of rule 1301:7-9-13 of
the Administrative Code; (4) The tier 1
delineation program task completion date shall be the date the tier 1
investigation report is required to be submitted to the fire marshal. The tier
1 delineation program task is comprised of those actions set forth in paragraph
(I) of rule 1301:7-9-13 of the Administrative Code; (5) The tier 2 evaluation
program task completion date shall be the date the tier 2 evaluation report is
required to be submitted to the fire marshal. The tier 2 evaluation program
task is comprised of those actions set forth in paragraph (L) of rule
1301:7-9-13 of the Administrative Code; (6) The tier 3 evaluation
program task completion date shall be the date the tier 3 evaluation report is
required to be submitted to the fire marshal. The tier 3 evaluation program
task is comprised of those actions set forth in paragraph (M) of rule
1301:7-9-13 of the Administrative Code; (7) The completion date
for the interim response action program task associated with a tier evaluation
shall be the date the interim response action summary report is required to be
submitted to the fire marshal. The interim response action program task is
comprised of those actions set forth in paragraph (K) of rule 1301:7-9-13 of
the Administrative Code. (8) The completion date
for the remedial action plan preparation program task associated with a tier
evaluation shall be the date the remedial action plan is required to be
submitted to the fire marshal. The remedial action plan preparation program
task is comprised of those actions set forth in paragraphs (N)(1) and (N)(2) of
rule 1301:7-9-13 of the Administrative Code; (9) The completion date
for the remedial action plan implementation program task and the monitoring
plan program task shall be the date the fire marshal issues a no further action
determination. The remedial action plan implementation program task is
comprised of those actions set forth in paragraphs (N)(3) and (N)(4) of rule
1301:7-9-13 of the Administrative Code. The monitoring plan program task is
comprised of those actions set forth in paragraph (O) of rule 1301:7-9-13 of
the Administrative Code; and (10) For any costs not
associated with a program task described in this paragraph, the associated
completion date shall be the earliest of: (a) A completion date specified by the fire marshal; (b) The date the fire marshal issues a no further action
determination; or (c) The date the work was completed. (F) Where applicable, a responsible person shall submit approvals
from the fire marshal to remain in an earlier version of rule 1301:7-9-13 of
the Administrative Code. Where a responsible person has been conducting
corrective action under an earlier version of rule 1301:7-9-13 of the
Administrative Code and elects, or by operation of law, is mandatorily
transitioned to continue corrective action under rule 1301:7-9-13 of the
Administrative Code in effect on or after March 1, 2005, the election date or
the mandatory transition date shall be used as the completion date for
submitting the following costs: (1) For program tasks that are incomplete
at the date of the election or mandatory transition date, submit all costs
incurred within one year from the date of the election or mandatory transition;
and (2) For all program tasks that are
complete at the time of such election or mandatory transition, submit all costs
in accordance with paragraph (B), (C), (D), or (E) of this rule. (G) If the responsible person has made a timely (prior to the
original due date for completion) written request to the fire marshal in
accordance with rule 1301:7-9-13 of the Administrative Code, to extend the time
for completing a program task and if the fire marshal grants that request, the
claim submission date for costs associated with that program task shall be as
follows: (1) For costs incurred
prior to the original completion date, any claim for such costs shall be
submitted within one year from the original completion date; (2) For costs incurred
after the original completion date, any claim for such costs shall be submitted
within one year from the newly approved and extended deadline and, if no
deadline is stated in the fire marshal's letter, within one year from the
date of the letter. (H) If the fire marshal issues a written request for additional
information, the costs for the additional work required to address the requests
are due within one year from the date the work is required to be completed by
the fire marshal and if no completion date is stated in the original request,
within one year from the date of the request. This rule shall be applied to all
program tasks performed under all versions of rule 1301:7-9-13 of the
Administrative Code. (I) The application for reimbursement shall include documentation
of all notifications and reports required under applicable versions of rule
1301:7-9-13 of the Administrative Code. (J) The application for reimbursement shall include the following
documentation: (1) Certifications by
the responsible person and the primary consultant or primary contractor that
the information contained in and submitted with the application is true and
correct and represents actual costs incurred; (2) Invoices, payment
records and any other records documenting actual costs incurred and paid
related to corrective action; and (3) Any other records,
site-specific information or other relevant information necessary to
demonstrate compliance with cleanup standards and tank rules, or any applicable
order, as required by the director. (K) A responsible person may apply for reimbursement for partial
completion of a program task provided that the total amount sought in the
application for reimbursement is not less than fifty per cent of the applicable
deductible of the responsible person except: (1) For those costs
required to be submitted according to paragraph (F)(2), (G), or (H) of this
rule, the responsible person shall apply for reimbursement as required by those
paragraphs regardless of the total amount sought; and (2) For those costs
associated with remediation system operation and maintenance and/or monitoring
activities, the director may grant permission to the responsible person to
submit applications for reimbursement in which the total amount being sought is
less than fifty per cent of the applicable deductible of the responsible
person.
Last updated September 9, 2024 at 2:30 PM
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Rule 3737-1-12.1 | Mandatory and voluntary pre-approval of corrective action costs.
(A) For corrective actions to be
performed in accordance with all versions of rule 1301:7-9-13 of the
Administrative Code, the responsible person shall submit to the director an
application for initial pre-approval of costs for pending corrective actions,
as follows: (1) Simultaneously with
the submission of an interim response action notification to the fire marshal,
where prior approval of the fire marshal must be obtained, the responsible
person shall submit an estimated cost and completion schedule for the
corrective actions as set forth in the interim response action
notification; (2) Simultaneously with
the submission of a remedial action plan to the fire marshal, the responsible
person shall: (a) Submit a copy of the remedial action plan with a brief
description of the remedial action alternatives considered, including a
discussion of the reliability, effectiveness, cost, and time needed for
completion, and the rationale for the selected remedial alternative;
and (b) Submit an estimated cost and completion schedule for the
remedial actions as set forth in the remedial action plan; (3) Simultaneously with
the submission to the fire marshal of a tier 3 evaluation plan where the
estimated costs exceed six thousand dollars, the responsible person shall
submit a copy of the tier 3 evaluation plan with a description of the
objective; the activities to be conducted; a discussion of the effectiveness,
cost and rationale for selecting the tier 3 evaluation; and an implementation
schedule and projected completion date; (4) Simultaneously with
the submission to the fire marshal of a plan to calibrate or disprove the fate
and transport model in conjunction with a tier 2 evaluation report, where the
estimated costs exceed six thousand dollars, the responsible person shall
submit a copy of the plan with a description of the objective; the activities
to be conducted; and an estimated cost and completion schedule; (5) Simultaneously with
the submission to the fire marshal of a monitoring plan in conjunction with a
tier evaluation report, where the estimated costs exceed six thousand dollars,
the responsible person shall submit an estimated cost and completion schedule
for the corrective actions as set forth in the monitoring plan. (6) Simultaneously with
the submission to the fire marshal of a free product monitoring plan in
conjunction with a tier 2 evaluation report, the responsible person shall
submit an estimated cost and completion schedule for the corrective actions as
set forth in the free product monitoring plan. (7) If free product is present one year
after initiating free product recovery activities, the responsible person shall
assess the effectiveness of free product recovery techniques and shall submit a
brief written evaluation of the reliability, effectiveness, cost, and time
needed for free product recovery in the upcoming year. Said written evaluation
shall be submitted on a yearly basis for each year that recovery is
ongoing. (a) Where free product recovery has been in place for one year,
the first evaluation shall be submitted within ninety days following the
anniversary date of free product recovery. Subsequent evaluations shall be
submitted annually, unless otherwise determined by the director. (b) Where free product recovery is in conjunction with a remedial
action plan, the annual free product evaluation shall be incorporated into the
annual remedial action plan submissions required by this rule. (B) Where estimated cost and completion
schedules have been pre-approved in accordance with paragraphs (A)(2), (A)(6),
and (A)(7) of this rule, the responsible person shall submit pre-approval
applications annually, unless otherwise determined by the director, on a form
prescribed by the director. (C) Upon receipt of a pre-approval
application submitted pursuant to this rule, the director shall evaluate the
estimated cost and completion schedule. In evaluating the estimated cost and
completion schedule to be pre-approved, the director shall consider what is
usual, customary and reasonable for similar corrective action activities and
under similar circumstances as determined from the fund's experience. At
the director's discretion, other options including, but not limited to,
pay-for-performance or risk sharing by the consultant and the responsible
person may be considered for the corrective actions for which pre-approval is
sought. The director shall notify the responsible person of the pre-approved
costs and completion schedule. (D) The responsible person shall
immediately notify the director and submit a revised estimated cost and
completion schedule for pre-approval as follows: (1) If during the
implementation of the corrective actions for which pre-approval has been
granted, the actual costs will exceed the pre-approved costs by twenty per cent
or six thousand dollars, whichever is less; or (2) If during the
implementation of the corrective actions for which pre-approval was not
required by paragraph (A)(3), (A)(4), or (A)(5) of this rule because the
estimated costs did not exceed six thousand dollars, the actual costs will
exceed six thousand dollars. (E) Where a revised estimated cost and
completion schedule is submitted for pre-approval, the director may review the
estimated cost and completion schedule in accordance with paragraph (C) of this
rule or provide notification to the responsible person that the estimated cost
and completion schedule will be evaluated when the application for
reimbursement is submitted to the board in accordance with rule 3737-1-12 of
the Administrative Code. (F) Where an estimated cost and
completion schedule is required by this rule, estimated costs shall be detailed
on a time and material basis. (G) Corrective action costs and completion schedules not
submitted for pre-approval in accordance with this rule shall be evaluated for
reimbursement and subject to reductions in reimbursement in accordance with
rule 3737-1-09 of the Administrative Code. (H) Where pre-approval is not required by this rule but is
desired by the responsible person, the responsible person may submit to the
director a description of the proposed corrective actions and an estimated cost
and completion schedule for pre-approval. (I) Pre-approval shall not accelerate fund reimbursement for a
release. Payment for pre-approved costs shall be contingent upon the proper
submission of an application for reimbursement in accordance with rule
3737-1-12 of the Administrative Code, and a determination that a responsible
person is eligible to receive reimbursement from the fund.
Last updated November 20, 2024 at 3:27 PM
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Rule 3737-1-13 | Reimbursement application review.
Effective:
November 30, 2009
(A) The director or the director's designee shall review the application for reimbursement and notify the responsible person of any apparent errors or omissions in the application for reimbursement and request any additional information or documentation which is required to complete the application. (B) Additional information may be requested if information contained in and submitted with the application for reimbursement is inconsistent with: (1) Appropriate corrective actions for the release; or (2) Approved reports and plans for the release, or where applicable, an order issued by the fire marshal with regard to the release; or (3) Costs for corrective action which are usual, customary and reasonable for similar corrective action activities and under similar circumstances, as determined from the fund's experience. (C) Any additional information or documentation requested to complete the application shall be submitted within ninety days from the date requested by the director or the director's designee. All costs of corrective action that are not documented within ninety days after requested by the director or the director's designee shall not be reimbursed regardless of whether documentation is later provided. (D) The fire marshal and the responsible person shall be given written notice of the director's determination to approve, approve with modifications, or deny the application.
Last updated September 9, 2024 at 2:30 PM
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Rule 3737-1-15 | Modifying the deductible or the reduced deductible.
(A) As a last alternative to maintain
solvency of the fund and as a method of ensuring that funding levels are
maintained on the basis of known and estimated obligations of the fund, the
board may modify the deductible or the reduced deductible. The basis for the
modification of the deductible or the reduced deductible will include but not
be limited to the amount needed to meet the financial soundness objectives set
forth in division (C) of section 3737.91 of the Revised Code. (B) The board shall notify each
responsible person by certified mail of the change in the deductible or the
reduced deductible no later than the first day of May preceding the first day
of the fiscal year in which the deductible amount will apply. If the certified
mail is returned unclaimed, it shall be served upon the responsible person in
accordance with section 119.07 of the Revised Code. (C) The applicable deductible for any
claim is the deductible in effect at the time of the release incident for which
application for reimbursement is being made.
Last updated September 9, 2024 at 2:30 PM
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Rule 3737-1-16 | Third-party claims.
(A) Reimbursement or payment from the
fund for compensation paid or to be paid for third-party claims shall be
limited to the reasonable costs of bodily injury or property damage, if any, if
the responsible person was in compliance with rule 3737-1-19 of the
Administrative Code at the time the judgment or settlement was entered and the
responsible person has been determined eligible for reimbursement for the
third-party claim. (B) Upon notifying the board of a
third-party claim pursuant to rule 3737-1-19 of the Administrative Code, the
responsible person shall keep the board informed of the status of the
third-party claim including but not limited to any pending negotiations,
litigation, mediations, settlements, or judgments. (C) Where there has been a judgment or
settlement of a third-party lawsuit, the director shall determine and reimburse
only those portions, if any, of the judgment or settlement which apply to
bodily injury or property damage as defined in paragraphs (A)(3) and (A)(22) of
rule 3737-1-03 of the Administrative Code. The board shall have no obligation
to pay for the reasonable costs of bodily injury or property damage that are
not documented in a third-party claim. (D) The total amount reimbursed,
including payment to a third party under this rule, shall not exceed the
maximum disbursement set forth in division (D)(3) of section 3737.91 of the
Revised Code. (E) Reimbursement or payment from the
fund under this rule shall not include payment or reimbursement for bodily
injury or property damage covered by insurance policies, or that has been or
will be paid by any party under rule 3737-1-22 of the Administrative
Code. (F) Determination of third-party
eligibility for the responsible person does not constitute an obligation for
reimbursement from the fund. (G) Nothing in this rule precludes the
board from participating or intervening in any pending negotiations,
litigation, mediations, or settlement discussions or entering into a settlement
with either the responsible person or the third party. (H) Nothing in this rule shall be
construed that the board is acting as a representative of the responsible
person.
Last updated November 20, 2024 at 3:27 PM
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Rule 3737-1-17 | Petroleum underground storage tank linked deposit program.
Effective:
January 1, 2015
(A) In order to participate in the petroleum underground storage tank linked deposit program an applicant must: (1) Be headquartered in the state of Ohio; (2) Own six or fewer tanks exclusively in Ohio; (3) Be organized for profit; (4) Have a total annual revenue of not more than two million dollars and fewer than fifty employees; (5) Apply to an eligible lending institution; and (6) Certify that the reduced rate loan will be used exclusively for the replacement or upgrading of one or more petroleum underground storage tanks or tank systems in compliance with division (A) of section 3737.88 of the Revised Code. (B) The board upon receipt of a linked deposit application from the eligible lending institution may accept or reject the application on the basis of: (1) The board's evaluation of the eligible owner and the amount to be deposited from the petroleum underground storage tank financial assurance fund including: (a) The manner in which the linked deposit benefit will materially contribute to the relative financial need of the business in question; (b) The economic needs of the area in which the owner's tanks are located; (c) Whether it appears from the linked deposit application that the replacement or improvement of the petroleum underground storage tanks or tank system will allow the eligible owner to continue operations at present levels in an environmentally sound manner; and (d) Such other factors as the board considers appropriate. (2) The criteria set forth in paragraph (A) of this rule. (3) Whether the amount of the linked deposit requested by the eligible lending institution is no greater than one hundred thousand dollars. (C) The board may on an annual basis commit no more than ten percent of the gross receipts of the annual billing of the petroleum underground storage tank financial assurance fund created under section 3737.91 of the Revised Code to be included in the petroleum underground storage tank linked deposit program.
Last updated September 9, 2024 at 2:31 PM
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Rule 3737-1-18 | Certificate of coverage.
(A) The board shall issue a certificate
of coverage to any responsible person who has met the criteria of division (D)
of section 3737.91 of the Revised Code and rule 3737-1-04 of the Administrative
Code. (B) One master certificate of coverage
will be issued for each responsible person making payment to the fund and a
facility certificate of coverage will be issued for each assured facility
site. (C) The certificate of coverage shall
contain the following information: (1) The amount of
coverage to which the responsible person is entitled from the
fund; (2) The time period for
which the certificate provides coverage; and (3) The number of tanks
which are included in the coverage.
Last updated September 9, 2024 at 2:31 PM
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Rule 3737-1-19 | Establishing fund eligibility for third-party claims.
(A) As a prerequisite to determining fund
payment or reimbursement for compensation paid or to be paid for third-party
claims for bodily injury or property damages caused by the accidental release
of petroleum resulting in the need for corrective action, the director of the
fund shall issue a determination of eligibility where all of the following
conditions are established: (1) Receipt of an
application for eligibility, from a responsible person, for third-party bodily
injury or third-party property damage caused by an accidental release of
petroleum within thirty days from the first of any of the following events:
service of a third-party complaint against a responsible person, the submission
of a third-party demand for settlement, or notice of representation of a third
party in a lawsuit against a responsible person. Where a third-party
eligibility application is incomplete, the director or the director's
designee may make a written request for additional information. The responsible
person shall supply the additional information in writing and within sixty days
from the date of the request. If the responsible person fails to make a written
response within sixty days from the date of the request, the director or the
director's designee shall make a second request for the information and
shall notify the responsible person that failure to respond within thirty days
from the date of the second request shall result in an eligibility denial. If
the responsible person fails to make a written response within thirty days from
the date the second request is sent, eligibility shall be denied; (2) At the time of the
release incident, a responsible person possessed a valid certificate of
coverage, issued pursuant to rule 3737-1-18 of the Administrative Code and the
validity of which has been maintained pursuant to paragraph (E) of rule
3737-1-04 of the Administrative Code, for the petroleum underground storage
tank system from which the release occurred; (3) One of the following
applies: (a) At the time of the release incident, the petroleum
underground storage tank system from which the release occurred was registered
in compliance with rules adopted by the fire marshal under section 3737.88 of
the Revised Code; (b) The fire marshal has recommended that payment or
reimbursement be made because good cause existed for the responsible
person's failure to have so registered the petroleum underground storage
tank system, and the responsible person has registered the petroleum
underground storage tank system with the fire marshal and paid all back
registration fees payable under those rules for registration of the system from
the time the responsible person should have, but failed to register the
system. (4) The fire marshal has
determined that, when the claim was filed, a responsible person was in
compliance with all orders issued under sections 3737.88 and 3737.882 of the
Revised Code regarding the petroleum underground storage tank system from which
the release occurred; (5) A responsible person
demonstrates financial responsibility for the deductible amount applicable
under section 3737.91 of the Revised Code for the petroleum underground storage
tank system from which the release occurred; (6) The responsible
person has not falsified any attestation contained on a registration
application required by rules adopted under section 3737.88 of the Revised
Code; (7) The responsible
person has met the petroleum release, suspected release, and confirmed release
reporting requirements set forth in rule 1301:7-9-13 of the Administrative
Code; (8) At the time of the
release incident, the petroleum underground storage tank system from which the
release occurred was in compliance with rules, other than rules regarding
registration, adopted by the fire marshal under section 3737.88 of the Revised
Code; and (9) The responsible
person has been determined eligible for payment of or reimbursement for
eligible corrective action costs pursuant to rule 3737-1-07 of the
Administrative Code. (B) A responsible person determined
eligible pursuant to paragraph (A) of this rule for fund payment or
reimbursement shall maintain eligibility to the fund by doing all of the
following: (1) Maintaining all
records required to be kept by this chapter; (2) Paying all fees
assessed; (3) Maintaining
compliance with all orders issued pursuant to sections 3737.88 and 3737.882 of
the Revised Code; and (4) Maintaining
compliance with applicable rules for petroleum underground storage tank systems
adopted by the fire marshal under section 3737.88 of the Revised Code for the
underground storage tank system from which the release occurred. (C) When the director has reason to
believe that a responsible person determined eligible to claim against the
financial assurance fund pursuant to paragraph (A) of this rule has failed to
maintain fund eligibility pursuant to paragraph (B) of this rule, the director
shall issue a notice of pending fund ineligibility. The responsible person
shall have thirty days from the mailing of such notice to either provide
evidence of compliance with all fund eligibility requirements or take all
necessary steps to correct the non-compliance. If, after thirty days from the mailing of the
notice of pending fund ineligibility, the responsible person fails to resolve
the non-compliance, the director shall issue a determination of fund
ineligibility immediately nullifying any previously determined eligibility for
disbursement from the financial assurance fund. The director shall provide the
fire marshal with a copy of the determination issued pursuant to this
paragraph. (D) A responsible person or the fire
marshal may file written objections with the board to the director's
determination of fund ineligibility no later than thirty days from the mailing
of the determination of fund ineligibility. The board upon receipt of the
objections shall appoint a referee to conduct an adjudication hearing on the
determination in accordance with section 119.09 of the Revised
Code. (E) Determination of fund eligibility
does not constitute an obligation for reimbursement from the fund.
Last updated September 9, 2024 at 2:31 PM
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Rule 3737-1-20 | Fees for materials and services.
Effective:
January 1, 2015
Reasonable fees may be charged to persons requesting materials or services from the board.
Last updated September 9, 2024 at 2:31 PM
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Rule 3737-1-21 | Obligated account.
Effective:
January 1, 2015
Prior to the beginning of each fiscal year, the director shall propose that monies be obligated for reimbursement of corrective action costs. The proposed amount to be obligated shall be only that which is reasonably estimated by the director to be paid out for such costs in the upcoming fiscal year. Prior to the start of the upcoming fiscal year, the board shall consider the proposal and approve the amount of monies, representing estimated upcoming fiscal year claim reimbursements, to be transferred, during the first quarter of the upcoming fiscal year, to a special account named obligated account and be expressly used for reimbursements of corrective action costs. Monies not placed in the obligated account, the debt service account or accounts, the debt service reserve account or accounts, in certificates of deposit purchased for linked deposits, or in the unclaimed monies trust account shall remain in the unobligated balance. At the end of the fiscal year in which monies have been obligated, any excess monies in the obligated account shall remain in that account to reduce the transfer of monies into the obligated account for reimbursements of corrective action costs in the succeeding fiscal year. If, during the fiscal year, the monies set aside in the obligated account are anticipated to be insufficient to cover reimbursements of corrective action costs for the remainder of the current fiscal year, the director may draw monies from the unobligated balance to obligate additional monies as necessary for reimbursements of corrective action costs, subject to board approval.
Last updated September 9, 2024 at 2:32 PM
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Rule 3737-1-22 | Subrogation.
Effective:
January 1, 2015
(A) The responsible person shall not in any manner do any act that will impair the board's subrogation rights. The responsible person shall: (1) Notify the board in writing within thirty days of any action by another party causing and/or contributing to an accidental release of petroleum from an assured underground storage tank system or other sources; (2) Notify the board of the identity of all other parties against whom the responsible person has or may have a right of recovery; (3) Notify the other party(s) of the board's right to subrogation under division (I) of section 3737.92 of the Revised Code and that the board may assert its right by written correspondence with the responsible person, the other party(s) or their legal representatives, or may settle or institute and pursue legal proceedings against the other party(s) independently or in conjunction with the responsible person; (4) Notify the other party(s) that no settlement, compromise, judgment, award, or other recovery in any action or claim by the responsible person shall be binding on the board; (5) Notify the other party(s) that any settlement, compromise, judgment, award, or other recovery in favor of the responsible person shall not preclude the board from enforcing its subrogation rights against the other party(s); and (6) Notify the other party(s) that no attorney fees, court costs or other litigation costs shall be assessed against the board for enforcing its subrogation rights. (B) The responsible person shall cooperate with the board in enforcement of its subrogation rights, including but not limited to: (1) Providing documents, testimony, and access to experts relating to the other party(s) causing or contributing to the accidental release of petroleum; (2) Providing reasonable advance notification to the board of any and all settlement meetings; and (3) Not enter into any settlement agreement without prior notice to and authorization by the board. (C) Where reimbursement for the costs of corrective action and third-party claims has been withheld pursuant to rule 3737-1-09 of the Administrative Code, and the board recovers any monies under its subrogation rights, the board may reimburse the responsible person the amount withheld only if the amount recovered under the board's subrogation claim is greater than the amount withheld from the responsible person. (D) If the responsible person has received any monies from any other party or the responsible person's insurance for reimbursement of corrective action costs and/or third-party claims, the responsible person shall indemnify the board the total amount of any monies advanced or received including repayment to the board of any amount the board has reimbursed the responsible person or has compensated any third party, unless the responsible person and the board agree to a lesser amount in a written settlement agreement.
Last updated September 9, 2024 at 2:32 PM
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Rule 3737-1-23 | Access and maintenance of confidential personal information.
Effective:
January 1, 2015
For purposes of confidential personal information that is maintained by the board, the following definitions apply: (A) Definitions: (1) "Access" as a noun means an instance of copying, viewing, or otherwise perceiving whereas "access" as a verb means to copy, view, or otherwise perceive. (2) "Acquisition of a new computer system" means the purchase of a "computer system," as defined in this rule, that is not a computer system currently in place nor one for which the acquisition process has been initiated as of the effective date of this rule addressing requirements in section 1347.15 of the Revised Code. (3) "Computer system" means hardware, software, and other equipment that stores, maintains, or retrieves personal information using electronic data processing. (4) "Confidential personal information" has the same meaning as defined by division (A)(1) of section 1347.15 of the Revised Code and identified by paragraph (D) of this rule. (5) "Employee of the board" means each employee of the board regardless of whether he/she holds an appointed office or position within the board. "Employee of the board" is limited to the petroleum underground storage tank release compensation board. (6) "Incidental contact" means contact with the information that is secondary or tangential to the primary purpose of the activity that resulted in the contact. (7) "Individual contact" means a natural person or the natural person's authorized representative, legal counsel, legal custodian, or legal guardian. (8) "Information owner" means the individual appointed in accordance with division (A) of section 1347.05 of the Revised Code to be directly responsible for a system. (9) "Person" means a natural person. (10) "Personal information" has the same meaning as defined in division (E) of section 1347.01 of the Revised Code. (11) "Personal information system" means a "system" that "maintains" "personal information" as those terms are defined in section 1347.01 of the Revised Code. "System" includes manual and computer systems. (12) "Research" means a methodical investigation into a subject. (13) "Routine" means commonplace, regular, habitual, or ordinary. (14) "Routine information that is maintained for the purpose of internal office administration, the use of which would not adversely affect a person" as that phrase is used in division (F) of section 1347.01 of the Revised Code means personal information relating to employees of the board and maintained by the board for internal administrative and human resource purposes. (15) "System" has the same meaning as defined by division (F) of section 1347.01 of the Revised Code. (16) "Upgrade" means a substantial redesign of an existing computer system for the purpose of providing a substantial amount of new application functionality, or application modifications that would involve substantial administrative or fiscal resources to implement, but would not include maintenance, minor updates and patches, or modifications that entail a limited addition of functionality due to changes in business or legal requirements. (B) For personal information systems, whether manual or computer systems that contain confidential personal information, the following rules apply: (1) Criteria for accessing confidential personal information. Employees of the board are authorized to access personal information systems for valid reasons in accordance with paragraph (C)(1) of this rule to the extent required to perform assigned job duties; (2) Individual's request for a list of confidential personal information. Upon the signed written request of any individual for a list of confidential personal information about the individual maintained by the board, the employee responding to such request shall do all of the following: (a) Verify the identity of the individual by a method that provides safeguards commensurate with the risk associated with the confidential personal information; (b) Provide to the individual the list of confidential personal information that does not relate to an investigation about the individual or is otherwise not excluded from the scope of Chapter 1347. of the Revised Code; and (c) If all information relates to an investigation about that individual, inform the individual that the board has no confidential personal information about the individual that is responsive to the individual's request. (3) Notice of invalid access. (a) Upon discovery or notification that confidential personal information of a person has been accessed by an employee for an invalid reason, the board shall notify the person whose information was invalidly accessed as soon as practical and to the extent known at the time. However, notification shall be delayed for a period of time necessary to ensure that the notification would not delay or impede an investigation or jeopardize homeland or national security. Additionally, the board may delay the notification consistent with any measures necessary to determine the scope of the invalid access, including which individual's confidential personal information invalidly was accessed, and to restore the reasonable integrity of the system. (b) "Investigation" as used in this paragraph means the investigation of the circumstances and involvement of an employee surrounding the invalid access of the confidential personal information. Once the board determines that notification would not delay or impede an investigation, the board shall disclose the access to confidential personal information made for an invalid reason to the person. (c) Notification shall inform the person of the type of confidential personal information accessed and the date(s) of the invalid access. (d) Notification may be made by any method reasonable designed to accurately inform the person of the invalid access, including written, electronic, or telephone notice. (4) Appointment of a data privacy point of contact. The director shall designate an employee to serve as the data privacy point of contact. The data privacy point of contact shall work with the chief privacy officer within the office of information technology to assist with both the implementation of privacy protections for the confidential personal information that the board maintains as well as work to ensure compliance with section 1347.15 of the Revised Code and this rule. (5) Completion of a privacy impact assessment. The director shall designate an employee to serve as the data privacy point of contact who shall timely complete the privacy impact assessment form developed by the office of information technology. (C) Pursuant to the requirements of division (B)(2) of section 1347.15 of the Revised Code, this rule contains a list of valid reasons, directly related to the board's exercise of its powers or duties, for which only employees of the board may access confidential personal information regardless of whether the personal information system is a manual system or computer system: (1) Performing the following functions constitutes valid reasons for authorized employees of the board to access confidential personal information: (a) Responding to a public records request; (b) Responding to a request from an individual for the list of confidential personal information the board maintains regarding that individual; (c) Administering a constitutional provision or duty; (d) Administering a statutory provision or duty; (e) Administering an administrative rule, provision or duty; (f) Complying with any state or federal program requirements; (g) Processing or payment of claims or otherwise administering a program with individual participants or beneficiaries; (h) Auditing purposes; (i) Investigation or law enforcement purposes; (j) Administrative hearings; (k) Litigation, complying with an order of the court, or subpoena; (l) Human resource matters (e.g. hiring, promotion, demotion, discharge, salary/compensation issues, leave requests/issues, time card approvals/issues); (m) Complying with an executive order or policy; or (n) Complying with an agency policy or state administrative policy issued by the department of administrative services, the office of budget and management or other similar agency. (D) The following federal statutes or regulations or state statutes and administrative rules make personal information maintained by the board confidential and identify the confidential personal information within the scope of rules promulgated by the board in accordance with section 1347.15 of the Revised Code: (1) Social security numbers: 5 U.S.C. 552a . , "State ex rel Beacon Journal v. Akron (1994), 70 Ohio St. 3d 605.", unless the individual was told that the number would be disclosed. (2) Records exempt from disclosure under the Ohio Public Records Act: Chapter 149. of the Revised Code. (E) For personal information systems that are computer systems and contain confidential personal information, the board shall do the following: (1) Access restrictions. Access to confidential personal information that is kept electronically shall require a password or other authentication measure. (2) Acquisition of a new computer system. When the board acquires a new computer system that stores, manages or contains confidential personal information, the board shall include a mechanism for recording specific access by employees of the board to the system. (3) Upgrading existing computer systems. When the board modifies an existing computer system that stores, manages or contains confidential personal information, the board shall make a determination whether the modification constitutes an upgrade. Any upgrades to a computer system shall include a mechanism for recording specific access by employees of the board to confidential personal information in the system. (4) Logging requirements regarding confidential personal information in existing manual and computer systems. (a) The board shall require employees of the board who access confidential personal information within the computer system to maintain a log that records that access. (b) Access to confidential information is not required to be entered into the log under the following circumstances: (i) The employee of the board is accessing confidential personal information for official authority purposes, including research, and the access is not specifically directed toward a specifically named individual or a group of specifically named individuals. (ii) The employee of the board is accessing confidential personal information for routine office procedures and the access is not specifically directed toward a specifically named individual or a group of specifically named individuals. (iii) The employee of the board comes into incidental contact with confidential personal information and the access of the information is not specifically directed toward a specifically named individual or a group of specifically named individuals. (iv) The employee of the board accesses confidential personal information to the extent necessary to perform assigned job duties and the access is for a valid reason as defined in paragraph (C)(1) of this rule. (v) The employee of the board accesses confidential personal information about an individual based upon a request made under either of the following circumstances: (a) The individual requests confidential personal information about himself/herself. (b) The individual makes a request that the board takes some action on that individual's behalf and accessing the confidential personal information is required in order to consider or process that request. (c) For purposes of this paragraph, the director may choose the form or forms of logging, whether in electronic or paper formats. (F) Log management. The director or designee shall maintain an electronic or paper log that records access to confidential personal information on existing computer systems for any reason not specified in paragraph (D)(4)(b) of this rule. The director shall issue a policy that specifies the following: (1) What information shall be captured in the log; (2) How the log is to be stored; and (3) How long information kept in the log is to be retained.
Last updated November 20, 2024 at 3:27 PM
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