Rule 3745-300-14 | Audits.
(A) The director shall conduct audits in connection with no further action letters issued under section 3746.11 of the Revised Code for any of the following purposes:
(1) To determine whether, after completion of voluntary actions conducted pursuant to this chapter and Chapter 3746. of the Revised Code, the properties upon which the voluntary actions were conducted meet applicable standards.
(2) To review the qualifications of and work performed by certified professionals under this chapter and Chapter 3746. of the Revised Code to determine whether the certified professionals possess the qualifications required for certification pursuant to rule 3745-300-05 of the Administrative Code and whether the certified professionals' performance in the voluntary action program has resulted in the issuance of no further action letters that are not consistent with applicable standards.
(3) To review the qualifications of and work performed by laboratories to determine whether the laboratories possess the qualifications required for certification pursuant to rule 3745-300-04 of the Administrative Code and whether the laboratories' performance under this chapter and Chapter 3746. of the Revised Code has resulted in the issuance of no further action letters that are not consistent with applicable standards.
(B) Audits selected from the random audit pool shall be conducted in accordance with paragraph (F) of this rule. The director shall select no further action letters for audit from the random audit pool by any method the director deems necessary.
(C) The director may select no further action letters for audit from the discretionary audit pool by any method the director deems necessary. Audits of no further action letters selected from the discretionary audit pool may be conducted by the director in accordance with paragraph (F) of this rule, or by any other means. The director may conduct a discretionary audit for any reason including, but not limited to, any no further action letters that meet any of the following criteria:
(1) The director has reason to believe the no further action letter was submitted fraudulently.
(2) Was prepared by a certified professional whose certification was subsequently revoked in accordance with rule 3745-300-05 of the Administrative Code.
(3) Relied upon analyses by a certified laboratory whose certification was subsequently revoked in accordance with rule 3745-300-04 of the Administrative Code or whose accreditation was subsequently revoked.
(4) Was the basis for a covenant not to sue which was subsequently revoked under this chapter and Chapter 3746. of the Revised Code.
(5) The certified professional, volunteer, or owner of the property has notified the director, in compliance with paragraph (E)(2)(f) of rule 3745-300-05 of the Administrative Code, that relevant facts, data, or other information existed at the time the no further action letter was issued which indicates applicable standards were not met.
(6) Pertains to a voluntary action for which a risk assessment was conducted in accordance with rule 3745-300-09 of the Administrative Code.
(7) Pertains to a voluntary action that included, as a remedial activity, either an engineering control as described in rule 3745-300-11 of the Administrative Code or institutional control which restricts access to or use of the property pursuant to rule 3745-300-11 of the Administrative Code.
(D) At a minimum, the director shall select no further action letters to be audited such that the total number of no further action letters selected for audit from both the random audit pool and discretionary audit pool result in the following:
(1) The selection of no less than twenty-five per cent of all no further action letters involving remedial activities that were submitted to the director during the previous calendar year.
(2) The selection of no less than twenty-five per cent of all no further action letters not involving remedial activities that were submitted to the director during the preceding calendar year.
(E) Compliance audits may be conducted in accordance with paragraph (F) of this rule, or by any other means selected by the director. The director may conduct a compliance audit for any purpose or combination of purposes described in paragraph (A) of this rule.
(F) Audits of a no further action letter may be conducted for any purpose or combination of purposes described in paragraph (A) of this rule in accordance with one or both of the following procedures:
(1) Tier I audit.
(a) Prior to commencing a tier I audit of a no further action letter, the director shall provide reasonable advance notice of the audit to the volunteer for whom the no further action letter was prepared, the certified professional who prepared the no further action letter, the current owner of the property, if different from the volunteer and, as appropriate, any laboratory which performed analyses which formed the basis for the no further action letter, and any other parties deemed necessary. The notice shall include a request that the certified professional who prepared the no further action letter make available all documents relied upon by the certified professional and required to be itemized on the document list in the no further action letter pursuant to rule 3745-300-13 of the Administrative Code, and any other documents which the director determines are necessary to perform an audit pursuant to this rule.
(b) When a certified professional receives a notice as described in paragraph (F)(1)(a) of this rule, the certified professional shall deliver the requested documentation to Ohio EPA not more than thirty days after the certified professional's receipt of the request.
(c) When conducting a tier I audit, the director may do the following:
(i) Request that a certified professional, a laboratory, a volunteer, or a person responsible for maintaining compliance with applicable standards at a property submit any or all documents pertaining to the no further action letter being audited.
(ii) Visit a property or place of business, after reasonable advance notice and during the normal operating hours of the business, to perform a review of the documents stored at that property or place of business.
(iii) Conduct a site walkover of the property upon which the voluntary action was conducted.
(d) All documents requested pursuant to paragraph (F)(1)(c)(i) of this rule shall be submitted to the director not later than thirty days after receipt of the request.
(2) Tier II audit.
(a) If the documents produced and reviewed pursuant to paragraph (F)(1) of this rule are inadequate to substantiate that applicable standards are met as described in the no further action letter, or if the director has a reasonable belief that the no further action letter has been based on fraudulent or inaccurate information or documentation, the director may do the following:
(i) Inspect a property, after reasonable advance notice, investigate or inspect conditions, equipment, or practices, and conduct sampling to determine compliance with applicable standards, this chapter, or Chapter 3746. of the Revised Code.
(ii) Take any other action the director deems necessary to determine whether the no further action letter was prepared in compliance with applicable standards, this chapter, or Chapter 3746. of the Revised Code.
(b) In addition to tier II audits conducted pursuant to paragraph (F)(2)(a) of this rule, the director may, at the director's discretion, randomly perform tier II audits on any no further action letter selected for audit.
(c) Nothing in this rule shall diminish the director's ability to conduct criminal or other investigations under Chapter 3704., 3714., 3734., 3746., 3750., 3753., 6109., or 6111. of the Revised Code.
(G) The director shall complete all investigatory auditing activities by December thirty-first of the year in which an audit is conducted pursuant to paragraphs (B) to (E) of this rule and division (B) of section 3746.17 of the Revised Code, and the director shall issue all audit findings by March first of the year after that in which an audit is conducted.
(H) The person responsible for maintaining compliance with applicable standards at a property subject to an audit may request one informal meeting with Ohio EPA to discuss the technical aspects of that audit. Ohio EPA shall be available for such meeting after the conclusion of all investigatory auditing activities and prior to the issuance of audit findings.
(I) The time limits required by this rule shall not prevent the director, at the director's discretion, from granting one thirty-day extension to any person subject to this rule. The director may extend any time limits imposed upon the director under this rule for a period not to exceed thirty days.
(J) If requested by the director, upon proper identification and stating the necessity and purpose of the inspection, the volunteer or current owner of a property shall allow the director access to the property to conduct all audit activities pursuant to this rule. Nothing in this rule shall limit the authority of the director provided in section 3746.21 of the Revised Code.
(K) Ohio EPA shall provide the person responsible for maintaining compliance with applicable standards at a property with a split sample of any soil, water, or sediment sample obtained or removed from a property, if prior to sampling, a written request is made by the person responsible for maintaining compliance with applicable standards at a property. With sufficient prior notice, Ohio EPA shall provide, at cost, appropriate sampling containers to the person who makes such a request.
(L) The director shall issue audit findings pursuant to this rule which include a determination of whether applicable standards, and all other requirements established under this chapter or Chapter 3746. of the Revised Code have been met, and whether additional actions are required to attain compliance. After an audit is completed:
(1) If the director finds that a certified professional or certified laboratory either did not possess the required qualifications for certification or that work performed by the certified professional or certified laboratory in connection with a voluntary action resulted in the issuance of a no further action letter that is not consistent with the applicable standards, the director may either suspend or revoke the certification of the certified professional or the certified laboratory.
(2) If the director finds that the performance of a certified professional or certified laboratory has resulted in the issuance of no further action letters that are not consistent with applicable standards, the director shall notify persons for whom the certified professional or certified laboratory has performed work in connection with a voluntary action of the audit findings.
(3) If the director finds that a property no longer complies with the applicable standards upon which issuance of a covenant was based, the director, by certified mail, return receipt requested, shall notify the person responsible for maintaining compliance with those standards of that finding, and of the requirements of division (B)(3) of section 3746.12 of the Revised Code.
(4) The recipient of a notice provided under paragraph (L)(3) of this rule and division (B)(2) of section 3746.12 of the Revised Code, within thirty days after the notice was mailed, shall notify the director of the recipient's intention to return the property to compliance with the applicable standards upon which the covenant was based, and shall enter into a compliance schedule agreement with the director. The compliance schedule agreement shall establish a reasonable period of time to return to compliance with those applicable standards. If the recipient of the notice fails to take both of these actions in the required time frame, the director, by issuance of an order as a final action under Chapter 3745. of the Revised Code, shall revoke the covenant not to sue issued for the property.
(5) If the director finds that a person with whom the director entered into a compliance schedule agreement under this rule and division (B)(3) of section 3746.12 of the Revised Code failed to return the property to which the agreement pertains to compliance with the applicable standards within the time established in the agreement, the director, by issuance of an order as a final action under Chapter 3745. of the Revised Code, shall revoke the covenant not to sue issued for the property.
(M) Nothing in this rule shall diminish the director's ability to conduct criminal or other investigations under Chapter 3704., 3714., 3734., 3745., 3746., 3750., 3751., 3752., 3753., 6109., or 6111. of the Revised Code.
Last updated June 5, 2023 at 8:32 AM
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