REPRESENTATIVES Seitz, McGregor

To amend sections 123.01, 317.08, 3734.22, 3734.24 to

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3734.26, 3745.01, 3746.04, 3746.10, and 3746.14

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and to enact sections 5301.80 to 5301.92 of the

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Revised Code to establish environmental covenants

4

as an interest in real property generally arising

5

under an environmental remediation or mitigation

6

project that imposes activity and use limitations

7

on the property, to require the recording of such

8

covenants, and to establish other requirements

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regarding environmental covenants.

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BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That sections 123.01, 317.08, 3734.22, 3734.24,	11
3734.25, 3734.26, 3745.01, 3746.04, 3746.10, and 3746.14 be	12
amended and sections 5301.80, 5301.81, 5301.82, 5301.83, 5301.84,	13
5301.85, 5301.86, 5301.87, 5301.88, 5301.89, 5301.90, 5301.91, and	14
5301.92 of the Revised Code be enacted to read as follows:	15

Sec. 123.01.  (A) The department of administrative services,	16
in addition to those powers enumerated in Chapters 124. and 125.	17
of the Revised Code and provided elsewhere by law, shall exercise	18
the following powers:	19

(1) To prepare, or contract to be prepared, by licensed	20
engineers or architects, surveys, general and detailed plans,	21
specifications, bills of materials, and estimates of cost for any	22
projects, improvements, or public buildings to be constructed by	23
state agencies that may be authorized by legislative	24
appropriations or any other funds made available therefor,	25
provided that the construction of the projects, improvements, or	26
public buildings is a statutory duty of the department. This	27
section does not require the independent employment of an	28
architect or engineer as provided by section 153.01 of the Revised	29
Code in the cases to which that section applies nor affect or	30
alter the existing powers of the director of transportation.	31

(2) To have general supervision over the construction of any	32
projects, improvements, or public buildings constructed for a	33
state agency and over the inspection of materials previous to	34
their incorporation into those projects, improvements, or	35
buildings;	36

(3) To make contracts for and supervise the construction of	37
any projects and improvements or the construction and repair of	38
buildings under the control of a state agency, except contracts	39
for the repair of buildings under the management and control of	40
the departments of public safety, job and family services, mental	41
health, mental retardation and developmental disabilities,	42
rehabilitation and correction, and youth services, the bureau of	43
workers' compensation, the rehabilitation services commission, and	44
boards of trustees of educational and benevolent institutions.	45
These contracts shall be made and entered into by the directors of	46
public safety, job and family services, mental health, mental	47
retardation and developmental disabilities, rehabilitation and	48
correction, and youth services, the administrator of workers'	49
compensation, the rehabilitation services commission, and the	50
boards of trustees of such institutions, respectively. All such	51
contracts may be in whole or in part on unit price basis of	52
maximum estimated cost, with payment computed and made upon actual	53
quantities or units.	54

(4) To prepare and suggest comprehensive plans for the	55
development of grounds and buildings under the control of a state	56
agency;	57

(5) To acquire, by purchase, gift, devise, lease, or grant,	58
all real estate required by a state agency, in the exercise of	59
which power the department may exercise the power of eminent	60
domain, in the manner provided by sections 163.01 to 163.22 of the	61
Revised Code;	62

(6) To make and provide all plans, specifications, and models	63
for the construction and perfection of all systems of sewerage,	64
drainage, and plumbing for the state in connection with buildings	65
and grounds under the control of a state agency;	66

(7) To erect, supervise, and maintain all public monuments	67
and memorials erected by the state, except where the supervision	68
and maintenance is otherwise provided by law;	69

(8) To procure, by lease, storage accommodations for a state	70
agency;	71

(9) To lease or grant easements or licenses for unproductive	72
and unused lands or other property under the control of a state	73
agency. Such leases, easements, or licenses shall be granted for a	74
period not to exceed fifteen years and shall be executed for the	75
state by the director of administrative services and the governor	76
and shall be approved as to form by the attorney general, provided	77
that leases, easements, or licenses may be granted to any county,	78
township, municipal corporation, port authority, water or sewer	79
district, school district, library district, health district, park	80
district, soil and water conservation district, conservancy	81
district, or other political subdivision or taxing district, or	82
any agency of the United States government, for the exclusive use	83
of that agency, political subdivision, or taxing district, without	84
any right of sublease or assignment, for a period not to exceed	85
fifteen years, and provided that the director shall grant leases,	86
easements, or licenses of university land for periods not to	87
exceed twenty-five years for purposes approved by the respective	88
university's board of trustees wherein the uses are compatible	89
with the uses and needs of the university and may grant leases of	90
university land for periods not to exceed forty years for purposes	91
approved by the respective university's board of trustees pursuant	92
to section 123.77 of the Revised Code.	93

(10) To lease office space in buildings for the use of a	94
state agency;	95

(11) To have general supervision and care of the storerooms,	96
offices, and buildings leased for the use of a state agency;	97

(12) To exercise general custodial care of all real property	98
of the state;	99

(13) To assign and group together state offices in any city	100
in the state and to establish, in cooperation with the state	101
agencies involved, rules governing space requirements for office	102
or storage use;	103

(14) To lease for a period not to exceed forty years,	104
pursuant to a contract providing for the construction thereof	105
under a lease-purchase plan, buildings, structures, and other	106
improvements for any public purpose, and, in conjunction	107
therewith, to grant leases, easements, or licenses for lands under	108
the control of a state agency for a period not to exceed forty	109
years. The lease-purchase plan shall provide that at the end of	110
the lease period, the buildings, structures, and related	111
improvements, together with the land on which they are situated,	112
shall become the property of the state without cost.	113

(a) Whenever any building, structure, or other improvement is	114
to be so leased by a state agency, the department shall retain	115
either basic plans, specifications, bills of materials, and	116
estimates of cost with sufficient detail to afford bidders all	117
needed information or, alternatively, all of the following plans,	118
details, bills of materials, and specifications:	119

(i) Full and accurate plans suitable for the use of mechanics	120
and other builders in the improvement;	121

(ii) Details to scale and full sized, so drawn and	122
represented as to be easily understood;	123

(iii) Accurate bills showing the exact quantity of different	124
kinds of material necessary to the construction;	125

(iv) Definite and complete specifications of the work to be	126
performed, together with such directions as will enable a	127
competent mechanic or other builder to carry them out and afford	128
bidders all needed information;	129

(v) A full and accurate estimate of each item of expense and	130
of the aggregate cost thereof.	131

(b) The department shall give public notice, in such	132
newspaper, in such form, and with such phraseology as the director	133
of administrative services prescribes, published once each week	134
for four consecutive weeks, of the time when and place where bids	135
will be received for entering into an agreement to lease to a	136
state agency a building, structure, or other improvement. The last	137
publication shall be at least eight days preceding the day for	138
opening the bids. The bids shall contain the terms upon which the	139
builder would propose to lease the building, structure, or other	140
improvement to the state agency. The form of the bid approved by	141
the department shall be used, and a bid is invalid and shall not	142
be considered unless that form is used without change, alteration,	143
or addition. Before submitting bids pursuant to this section, any	144
builder shall comply with Chapter 153. of the Revised Code.	145

(c) On the day and at the place named for receiving bids for	146
entering into lease agreements with a state agency, the director	147
of administrative services shall open the bids and shall publicly	148
proceed immediately to tabulate the bids upon duplicate sheets. No	149
lease agreement shall be entered into until the bureau of workers'	150
compensation has certified that the person to be awarded the lease	151
agreement has complied with Chapter 4123. of the Revised Code,	152
until, if the builder submitting the lowest and best bid is a	153
foreign corporation, the secretary of state has certified that the	154
corporation is authorized to do business in this state, until, if	155
the builder submitting the lowest and best bid is a person	156
nonresident of this state, the person has filed with the secretary	157
of state a power of attorney designating the secretary of state as	158
its agent for the purpose of accepting service of summons in any	159
action brought under Chapter 4123. of the Revised Code, and until	160
the agreement is submitted to the attorney general and the	161
attorney general's approval is certified thereon. Within thirty	162
days after the day on which the bids are received, the department	163
shall investigate the bids received and shall determine that the	164
bureau and the secretary of state have made the certifications	165
required by this section of the builder who has submitted the	166
lowest and best bid. Within ten days of the completion of the	167
investigation of the bids, the department shall award the lease	168
agreement to the builder who has submitted the lowest and best bid	169
and who has been certified by the bureau and secretary of state as	170
required by this section. If bidding for the lease agreement has	171
been conducted upon the basis of basic plans, specifications,	172
bills of materials, and estimates of costs, upon the award to the	173
builder the department, or the builder with the approval of the	174
department, shall appoint an architect or engineer licensed in	175
this state to prepare such further detailed plans, specifications,	176
and bills of materials as are required to construct the building,	177
structure, or improvement. The department shall adopt such rules	178
as are necessary to give effect to this section. The department	179
may reject any bid. Where there is reason to believe there is	180
collusion or combination among bidders, the bids of those	181
concerned therein shall be rejected.	182

(15) To acquire by purchase, gift, devise, or grant and to	183
transfer, lease, or otherwise dispose of all real property	184
required to assist in the development of a conversion facility as	185
defined in section 5709.30 of the Revised Code as that section	186
existed before its repeal by H.B.Amended Substitute House Bill 95	187
of the 125th general assembly;	188

(16) To lease for a period not to exceed forty years,	189
notwithstanding any other division of this section, the	190
state-owned property located at 408-450 East Town Street,	191
Columbus, Ohio, formerly the state school for the deaf, to a	192
developer in accordance with this section. "Developer," as used in	193
this section, has the same meaning as in section 123.77 of the	194
Revised Code.	195

Such a lease shall be for the purpose of development of the	196
land for use by senior citizens by constructing, altering,	197
renovating, repairing, expanding, and improving the site as it	198
existed on June 25, 1982. A developer desiring to lease the land	199
shall prepare for submission to the department a plan for	200
development. Plans shall include provisions for roads, sewers,	201
water lines, waste disposal, water supply, and similar matters to	202
meet the requirements of state and local laws. The plans shall	203
also include provision for protection of the property by insurance	204
or otherwise, and plans for financing the development, and shall	205
set forth details of the developer's financial responsibility.	206

The department may employ, as employees or consultants,	207
persons needed to assist in reviewing the development plans. Those	208
persons may include attorneys, financial experts, engineers, and	209
other necessary experts. The department shall review the	210
development plans and may enter into a lease if it finds all of	211
the following:	212

(a) The best interests of the state will be promoted by	213
entering into a lease with the developer;	214

(b) The development plans are satisfactory;

215

(c) The developer has established the developer's financial	216
responsibility and satisfactory plans for financing the	217
development.	218

The lease shall contain a provision that construction or	219
renovation of the buildings, roads, structures, and other	220
necessary facilities shall begin within one year after the date of	221
the lease and shall proceed according to a schedule agreed to	222
between the department and the developer or the lease will be	223
terminated. The lease shall contain such conditions and	224
stipulations as the director considers necessary to preserve the	225
best interest of the state. Moneys received by the state pursuant	226
to this lease shall be paid into the general revenue fund. The	227
lease shall provide that at the end of the lease period the	228
buildings, structures, and related improvements shall become the	229
property of the state without cost.	230

(17) To lease to any person any tract of land owned by the	231
state and under the control of the department, or any part of such	232
a tract, for the purpose of drilling for or the pooling of oil or	233
gas. Such a lease shall be granted for a period not exceeding	234
forty years, with the full power to contract for, determine the	235
conditions governing, and specify the amount the state shall	236
receive for the purposes specified in the lease, and shall be	237
prepared as in other cases.	238

(18) To manage the use of space owned and controlled by the	239
department, including space in property under the jurisdiction of	240
the Ohio building authority, by doing all of the following:	241

(a) Biennially implementing, by state agency location, a	242
census of agency employees assigned space;	243

(b) Periodically in the discretion of the director of	244
administrative services:	245

(i) Requiring each state agency to categorize the use of	246
space allotted to the agency between office space, common areas,	247
storage space, and other uses, and to report its findings to the	248
department;	249

(ii) Creating and updating a master space utilization plan	250
for all space allotted to state agencies. The plan shall	251
incorporate space utilization metrics.	252

(iii) Conducting a cost-benefit analysis to determine the	253
effectiveness of state-owned buildings;	254

(iv) Assessing the alternatives associated with consolidating	255
the commercial leases for buildings located in Columbus.	256

(c) Commissioning a comprehensive space utilization and	257
capacity study in order to determine the feasibility of	258
consolidating existing commercially leased space used by state	259
agencies into a new state-owned facility.	260

(B) This section and section 125.02 of the Revised Code shall	261
not interfere with any of the following:	262

(1) The power of the adjutant general to purchase military	263
supplies, or with the custody of the adjutant general of property	264
leased, purchased, or constructed by the state and used for	265
military purposes, or with the functions of the adjutant general	266
as director of state armories;	267

(2) The power of the director of transportation in acquiring	268
rights-of-way for the state highway system, or the leasing of	269
lands for division or resident district offices, or the leasing of	270
lands or buildings required in the maintenance operations of the	271
department of transportation, or the purchase of real property for	272
garage sites or division or resident district offices, or in	273
preparing plans and specifications for and constructing such	274
buildings as the director may require in the administration of the	275
department;	276

(3) The power of the director of public safety and the	277
registrar of motor vehicles to purchase or lease real property and	278
buildings to be used solely as locations to which a deputy	279
registrar is assigned pursuant to division (B) of section 4507.011	280
of the Revised Code and from which the deputy registrar is to	281
conduct the deputy registrar's business, the power of the director	282
of public safety to purchase or lease real property and buildings	283
to be used as locations for division or district offices as	284
required in the maintenance of operations of the department of	285
public safety, and the power of the superintendent of the state	286
highway patrol in the purchase or leasing of real property and	287
buildings needed by the patrol, to negotiate the sale of real	288
property owned by the patrol, to rent or lease real property owned	289
or leased by the patrol, and to make or cause to be made repairs	290
to all property owned or under the control of the patrol;	291

(4) The power of the division of liquor control in the	292
leasing or purchasing of retail outlets and warehouse facilities	293
for the use of the division;	294

(5) The power of the director of development to enter into	295
leases of real property, buildings, and office space to be used	296
solely as locations for the state's foreign offices to carry out	297
the purposes of section 122.05 of the Revised Code;	298

(6) The power of the director of environmental protection to	299
enter into environmental covenants, to grant and accept easements,	300
or to sell property pursuant to division (G) of section 3745.01 of	301
the Revised Code.	302

(C) Purchases for, and the custody and repair of, buildings	303
under the management and control of the capitol square review and	304
advisory board, the rehabilitation services commission, the bureau	305
of workers' compensation, or the departments of public safety, job	306
and family services, mental health, mental retardation and	307
developmental disabilities, and rehabilitation and correction, and	308
buildings of educational and benevolent institutions under the	309
management and control of boards of trustees, are not subject to	310
the control and jurisdiction of the department of administrative	311
services.	312

(D) Any instrument by which real property is acquired	313
pursuant to this section shall identify the agency of the state	314
that has the use and benefit of the real property as specified in	315
section 5301.012 of the Revised Code.	316

Sec. 317.08. (A) Except as provided in divisions (C) and (D)	317
of this section, the county recorder shall keep six separate sets	318
of records as follows:	319

(1) A record of deeds, in which shall be recorded all deeds	320
and other instruments of writing for the absolute and	321
unconditional sale or conveyance of lands, tenements, and	322
hereditaments; all notices as provided in sections 5301.47 to	323
5301.56 of the Revised Code; all judgments or decrees in actions	324
brought under section 5303.01 of the Revised Code; all	325
declarations and bylaws, and all amendments to declarations and	326
bylaws, as provided in Chapter 5311. of the Revised Code;	327
affidavits as provided in section 5301.252 of the Revised Code;	328
all certificates as provided in section 5311.17 of the Revised	329
Code; all articles dedicating archaeological preserves accepted by	330
the director of the Ohio historical society under section 149.52	331
of the Revised Code; all articles dedicating nature preserves	332
accepted by the director of natural resources under section	333
1517.05 of the Revised Code; all agreements for the registration	334
of lands as archaeological or historic landmarks under section	335
149.51 or 149.55 of the Revised Code; all conveyances of	336
conservation easements and agricultural easements under section	337
5301.68 of the Revised Code; all instruments extinguishing	338
agricultural easements under section 901.21 or 5301.691 of the	339
Revised Code or pursuant to terms of such an easement granted to a	340
charitable organization under section 5301.68 of the Revised Code;	341
all instruments or orders described in division (B)(1)(c)(ii) of	342
section 5301.56 of the Revised Code; all no further action letters	343
issued under section 122.654 or 3746.11 of the Revised Code; all	344
covenants not to sue issued under section 3746.12 of the Revised	345
Code, including all covenants not to sue issued pursuant to	346
section 122.654 of the Revised Code; any restrictions on the use	347
of property contained in a no further action letter issued under	348
section 122.654 of the Revised Code, any restrictions on the use	349
of property identified pursuant to division (C)(3) of section	350
3746.10 of the Revised Code, and any restrictions on the use of	351
property contained in a deed or other instrument as provided in	352
division (E) of section 3737.882 of the Revised Code; any easement	353
executed or granted under section 3734.22, 3734.24, 3734.25, or	354
3734.26 of the Revised Code; any environmental covenant entered	355
into in accordance with sections 5301.80 to 5301.92 of the Revised	356
Code; all memoranda of trust, as described in division (A) of	357
section 5301.255 of the Revised Code, that describe specific real	358
property; and all agreements entered into under division (A) of	359
section 1521.26 of the Revised Code;	360

(2) A record of mortgages, in which shall be recorded all of	361
the following:	362

(a) All mortgages, including amendments, supplements,	363
modifications, and extensions of mortgages, or other instruments	364
of writing by which lands, tenements, or hereditaments are or may	365
be mortgaged or otherwise conditionally sold, conveyed, affected,	366
or encumbered;	367

(b) All executory installment contracts for the sale of land	368
executed after September 29, 1961, that by their terms are not	369
required to be fully performed by one or more of the parties to	370
them within one year of the date of the contracts;	371

(c) All options to purchase real estate, including	372
supplements, modifications, and amendments of the options, but no	373
option of that nature shall be recorded if it does not state a	374
specific day and year of expiration of its validity;	375

(d) Any tax certificate sold under section 5721.33 of the	376
Revised Code, or memorandum of it, that is presented for filing of	377
record.	378

(3) A record of powers of attorney, including all memoranda	379
of trust, as described in division (A) of section 5301.255 of the	380
Revised Code, that do not describe specific real property;	381

(4) A record of plats, in which shall be recorded all plats	382
and maps of town lots, of the subdivision of town lots, and of	383
other divisions or surveys of lands, any center line survey of a	384
highway located within the county, the plat of which shall be	385
furnished by the director of transportation or county engineer,	386
and all drawings and amendments to drawings, as provided in	387
Chapter 5311. of the Revised Code;	388

(5) A record of leases, in which shall be recorded all	389
leases, memoranda of leases, and supplements, modifications, and	390
amendments of leases and memoranda of leases;	391

(6) A record of declarations executed pursuant to section	392
2133.02 of the Revised Code and durable powers of attorney for	393
health care executed pursuant to section 1337.12 of the Revised	394
Code.	395

(B) All instruments or memoranda of instruments entitled to	396
record shall be recorded in the proper record in the order in	397
which they are presented for record. The recorder may index, keep,	398
and record in one volume unemployment compensation liens, internal	399
revenue tax liens and other liens in favor of the United States as	400
described in division (A) of section 317.09 of the Revised Code,	401
personal tax liens, mechanic's liens, agricultural product liens,	402
notices of liens, certificates of satisfaction or partial release	403
of estate tax liens, discharges of recognizances, excise and	404
franchise tax liens on corporations, broker's liens, and liens	405
provided for in sections 1513.33, 1513.37, 3752.13, 5111.021, and	406
5311.18 of the Revised Code.	407

The recording of an option to purchase real estate, including	408
any supplement, modification, and amendment of the option, under	409
this section shall serve as notice to any purchaser of an interest	410
in the real estate covered by the option only during the period of	411
the validity of the option as stated in the option.	412

(C) In lieu of keeping the six separate sets of records	413
required in divisions (A)(1) to (6) of this section and the	414
records required in division (D) of this section, a county	415
recorder may record all the instruments required to be recorded by	416
this section in two separate sets of record books. One set shall	417
be called the "official records" and shall contain the instruments	418
listed in divisions (A)(1), (2), (3), (5), and (6) and (D) of this	419
section. The second set of records shall contain the instruments	420
listed in division (A)(4) of this section.	421

(D) Except as provided in division (C) of this section, the	422
county recorder shall keep a separate set of records containing	423
all corrupt activity lien notices filed with the recorder pursuant	424
to section 2923.36 of the Revised Code and a separate set of	425
records containing all medicaid fraud lien notices filed with the	426
recorder pursuant to section 2933.75 of the Revised Code.	427

Sec. 3734.22.  Before beginning to clean up any facility	428
under section 3734.21 of the Revised Code, the director of	429
environmental protection shall endeavor to enter into an agreement	430
with the owner of the land on which the facility is located, or	431
with the owner of the facility, specifying the measures to be	432
performed and authorizing the director, employees of the agency,	433
or contractors retained by the director to enter upon the land and	434
perform the specified measures.	435

Each agreement shall contain provisions for the reimbursement	436
of the state for the costs of the cleanup.	437

All reimbursements and payments shall be credited to the	438
hazardous waste clean-up fund created in section 3734.28 of the	439
Revised Code.	440

The agreement may require the owner to execute an easement	441
whereby the director, an authorized employee of the agency, or a	442
contractor employed by the agency in accordance with the bidding	443
procedure established in division (C) of section 3734.23 of the	444
Revised Code may enter upon the facility to sample, repair, or	445
reconstruct air and water quality monitoring equipment constructed	446
under the agreement. Such easements shall be for a specified	447
period of years and may be extinguished by agreement between the	448
owner and the director. When necessary to protect the public	449
health or safety, the agreement may require the owner to execute a	450
restrictive covenant to run with the land that specifies the uses	451
that may be made of the facility after work performed is	452
completed, specifies the period for which the restrictive covenant	453
applies, and provides terms whereby modifications to the	454
restrictive covenant, or other land uses, may be initiated or	455
proposed to the director by the owner or by subsequent owners of	456
the facility. All easements or covenants required under this	457
section shall be recorded in the office of the county recorder of	458
the county in which the facility is located, and the recording	459
fees shall be paid by the directorenter into an environmental	460
covenant with the director in accordance with sections 5301.80 to	461
5301.92 of the Revised Code.	462

Upon a breach of the reimbursement provisions of the	463
agreement by the owner of the land or facility, or upon	464
notification to the director by the owner that the owner is unable	465
to perform the duties under the reimbursement provisions of the	466
agreement, the director shall record the unreimbursed portion of	467
the costs of cleanup at the office of the county recorder of the	468
county in which the facility is located. The costs so recorded	469
constitute a lien against the property on which the facility is	470
located until discharged. Upon written request of the director,	471
the attorney general shall institute a civil action to recover the	472
unreimbursed portion of the costs of cleanup. Any moneys so	473
recovered shall be credited to the hazardous waste clean-up fund.	474

Sec. 3734.24.  After the cleanup of a solid waste facility or	475
a hazardous waste facility acquired and cleaned up under section	476
3734.23 of the Revised Code, the director of environmental	477
protection may, if the facility is suitable for use by any other	478
state department, agency, office, or institution and if the	479
proposed use of the facility is compatible with the condition of	480
the facility as cleaned up, transfer the facility to that state	481
department, agency, office, or institution. The director shall	482
continue to provide for the post-closure care, maintenance, and	483
monitoring of any such cleaned-up facility as required by section	484
3734.23 of the Revised Code.	485

If the director determines that any facility so cleaned up is	486
suitable, because of its condition as cleaned up, for restricted	487
or unrestricted use, hethe director may, with the approval of the	488
attorney general, sell the facility if the sale is advantageous to	489
the state. Prior to selling the cleaned-up facility, the director	490
shall, when necessary to protect public health or safety, execute	491
a restrictive covenant to run with the land that specifies the	492
uses that may be made of the facility, specifies the period for	493
which the restrictive covenant applies, and provides terms whereby	494
modifications to the restrictive covenant, or other land uses, may	495
be initiated or proposed to the director by subsequent owners of	496
the facilityenter into an environmental covenant in accordance	497
with sections 5301.80 to 5301.92 of the Revised Code. When selling	498
any such cleaned-up facility, the director shall retain the right	499
to enter upon the facility, in person or by hisan authorized	500
agent, to provide for the post-closure care, maintenance, and	501
monitoring of the facility. The director shall provide for the	502
post-closure care, maintenance, and monitoring of any such	503
facility sold as required by section 3734.23 of the Revised Code.	504

With the approval of the attorney general, the director may	505
grant easements or leases on any such cleaned-up facility if he	506
the director determines that the use of the facility under the	507
easement or lease is compatible with its condition as cleaned up.	508

Any moneys derived from the sale of such cleaned-up	509
facilities or from payments from easements or leases shall be	510
credited to the hazardous waste clean-up fund created in section	511
3734.28 of the Revised Code.	512

Sec. 3734.25.  (A) The director of environmental protection	513
may make grants of moneys from the hazardous waste clean-up fund	514
created in section 3734.28 of the Revised Code for payment by the	515
state of up to two-thirds of the reasonable and necessary expenses	516
incurred by a municipal corporation, county, or township for the	517
proper closure of or abatement of air or water pollution or soil	518
contamination from a solid waste facility in which significant	519
quantities of hazardous waste were disposed of and that the	520
political subdivision owns and once operated.	521

(B) A municipal corporation, county, or township shall submit	522
an application for a grant on forms provided by the director,	523
together with detail plans and specifications indicating the	524
measures to be performed, an itemized estimate of the project's	525
cost, a description of the project's benefits, and such other	526
information as the director prescribes. The plan for closure or	527
abatement of air or water pollution or soil contamination may be	528
prepared in consultation with the director or the board of health	529
of the city or general health district in which the facility is	530
located. The director may award the applicant a grant only if he	531
the director finds that the proposed measures will provide for the	532
proper closure of the facility and will abate or prevent air or	533
water pollution or soil contamination, including, but not limited	534
to, those measures necessary or desirable to:	535

(1) In the case of a facility at which land burial of	536
hazardous waste occurred, establish and maintain a suitable cover	537
of soil and vegetation over the cells in which waste is buried in	538
order to minimize erosion, the infiltration of surface water into	539
the cells, the production of leachate, and the accumulation or	540
runoff of contaminated surface waters and to prevent air emissions	541
of hazardous waste from the facility;	542

(2) Collect and treat contaminated surface water runoff from	543
the facility;	544

(3) Collect and treat leachate produced at the facility;

545

(4) Install test wells and other equipment or facilities to	546
monitor the quality of surface waters receiving runoff from the	547
facility or to monitor air emissions of hazardous waste from the	548
facility;	549

(5) Regularly monitor and analyze surface water runoff from	550
the facility, the quality of waters receiving the runoff, and	551
groundwaterground water quality in the vicinity of the facility,	552
and regularly monitor leachate collection and treatment systems	553
installed under the grant and analyze samples from them;	554

(6) Remove and dispose of hazardous waste from the facility	555
at a suitable hazardous waste disposal facility where necessary to	556
protect public health or safety or to prevent or abate air or	557
water pollution or soil contamination.	558

(C) The director shall determine the amount of the grant	559
based upon histhe director's determination of what constitutes	560
reasonable and necessary expenses for the proper closure of the	561
facility or for the prevention or elimination of air or water	562
pollution or soil contamination from the facility. In making a	563
grant, the director shall enter into a contract with the municipal	564
corporation, county, or township that owns the facility to ensure	565
that the moneys granted are used for the purposes of this section	566
and that measures performed are properly done. The final payment	567
under a grant may not be made until the director inspects and	568
approves the completed cleanup.	569

The contract shall require the municipal corporation, county,	570
or township to execute an easement whereby the director, an	571
authorized employee of the agency, or a contractor employed by the	572
director may enter upon the facility to sample, repair, or	573
reconstruct air and water quality monitoring equipment constructed	574
under the contract. Such easements shall be for a specified period	575
of years and may be extinguished by agreement between the	576
political subdivision and the director.	577

When necessary to protect public health or safety, the	578
contract may require the municipal corporation, county, or	579
township to execute a restrictive covenant to run with the land	580
that specifies the uses that may be made of the facility after	581
work performed under the contract is completed, specifies the	582
period for which the restrictive covenant applies, and provides	583
terms whereby modifications to the restrictive covenant, or other	584
land uses, may be initiated or proposed to the director by the	585
political subdivision or by subsequent owners of the facility. Any	586
easements or covenants required under this section shall be	587
recorded in the office of the county recorder of the county in	588
which the facility is located, and the recording fees shall be	589
paid by the recipient of the grantenter into an environmental	590
covenant with the director in accordance with sections 5301.80 to	591
5301.92 of the Revised Code.	592

Sec. 3734.26.  (A) The director of environmental protection	593
may make grants of moneys from the hazardous waste clean-up fund	594
created in section 3734.28 of the Revised Code to the owner, other	595
than a political subdivision, of a solid waste facility in which	596
significant quantities of hazardous waste were disposed of or a	597
hazardous waste facility for up to fifty per cent of the cost of	598
the reasonable and necessary expenses incurred for the proper	599
closure of or abatement or prevention of air or water pollution or	600
soil contamination from the facility and for developing the land	601
on which it was located for use in industry, commerce,	602
distribution, or research.	603

The director shall not make grants to the owner of any land	604
on which such facilities are located if the owner at any time	605
owned or operated the facility located thereon for profit or in	606
conjunction with any profit-making enterprise located in this	607
state or to any person who at any time owned or operated a	608
facility concerning which the director has taken action under	609
section 3734.20, 3734.22, or 3734.23 of the Revised Code. However,	610
the director may make grants under this section to any subsequent	611
owner of the land, provided that the person has no affiliation	612
with any person who owned or operated the facility located on the	613
land for profit or in conjunction with any profit-making	614
enterprise located in this state or who owned or operated a	615
facility concerning which the director has taken action under	616
section 3734.20, 3734.22, or 3734.23 of the Revised Code.	617

(B) The owner shall submit an application for a grant on	618
forms furnished by the director, together with detail plans and	619
specifications for the measures to be performed to close the	620
facility properly or to abate or prevent air or water pollution or	621
soil contamination from the facility, an itemized estimate of the	622
project's cost, a description of the project's estimated benefits,	623
and such other information as the director prescribes. The plan	624
may be prepared in consultation with the director or with the	625
board of health of the city or general health district in which	626
the facility is located. The director may award the applicant a	627
grant only if he findsafter finding that the proposed measures	628
will provide for the proper closure of the facility or will abate	629
or prevent air or water pollution or soil contamination from the	630
facility, including, but not limited to, those measures necessary	631
or desirable to:	632

(1) In the case of a facility for the land burial of	633
hazardous waste, establish and maintain a suitable cover of soil	634
and vegetation over the cells in which waste is buried in order to	635
minimize erosion, the infiltration of surface water into the	636
cells, the production of leachate, and the accumulation or runoff	637
of contaminated surface water and to prevent air emissions of	638
hazardous waste from the facility;	639

(2) Collect and treat contaminated surface water runoff from	640
the facility;	641

(3) Collect and treat leachate produced at the facility;

642

(4) Install test wells and other equipment or facilities to	643
monitor the quality of surface waters receiving runoff from the	644
facility or to monitor air emissions of hazardous waste from the	645
facility;	646

(5) Regularly monitor and analyze surface water runoff from	647
the facility, the quality of waters receiving the runoff, and	648
groundwaterground water quality in the vicinity of the facility,	649
and regularly monitor leachate collection and treatment systems	650
installed under the grant and analyze samples from them;	651

(6) Remove and dispose of hazardous waste from the facility	652
at a suitable hazardous waste disposal facility where necessary to	653
protect public health or safety or to abate or prevent air or	654
water pollution or soil contamination.	655

(C) The director shall determine the amount of the grant	656
based upon histhe director's determination of what constitutes	657
reasonable and necessary expenses for the proper closure of the	658
facility or for the abatement or prevention of air or water	659
pollution or soil contamination from the facility. The amount of	660
the grant shall not exceed one-half of the total, as determined by	661
the director, of what constitutes reasonable and necessary	662
expenses actually incurred for the proper closure of or abatement	663
or prevention of air or water pollution or soil contamination from	664
the facility.	665

In making a grant, the director shall enter into a contract	666
for funding with each applicant awarded a grant to ensure that the	667
moneys granted are used for the purpose of this section and that	668
the measures performed are properly performed. The final payment	669
under a grant may not be made until the director inspects and	670
approves the completed cleanup and the plans for developing the	671
land for use in industry, commerce, distribution, or research.	672

Each contract for funding shall contain provisions for the	673
reimbursement of the state of a portion of the costs of the	674
cleanup that is commensurate with the increase in the market value	675
of the property attributable to the cleanup thereon, as determined	676
by appraisals made before and after cleanup in the manner stated	677
in the contract. For reimbursement of that portion, the contract	678
may include provisions for:	679

(1) Payment to the state of the share of the income derived	680
from the productive use of the land;	681

(2) Imposition of a lien in the amount of the increase in	682
fair market value payable upon the transfer or conveyance to a new	683
owner;	684

(3) Waiver of all reimbursement if the determination	685
discloses an increase in value that is insubstantial in comparison	686
to the benefits to the public from the abatement of threats to	687
public health or safety or from the abatement or prevention of	688
pollution or contamination, considering the applicant's share of	689
the cleanup cost.	690

All reimbursements and payments shall be credited to the	691
hazardous waste clean-up fund created in section 3734.28 of the	692
Revised Code.	693

(D) The contract shall require the owner to execute an	694
easement whereby the director, an authorized employee of the	695
agency, or a contractor employed by the agency may enter upon the	696
facility to sample, repair, or reconstruct air and water quality	697
monitoring equipment constructed under the contract. Such	698
easements shall be for a specified period of years and may be	699
extinguished by agreement between the owner and the director. When	700
necessary to protect the public health or safety, the contract may	701
require the owner to execute a restrictive covenant to run with	702
the land that specifies the uses that may be made of the facility	703
after work performed under the grant is completed, specifies the	704
period for which the restrictive covenant applies, and provides	705
terms whereby modifications to the restrictive covenant, or other	706
land uses, may be initiated or proposed to the director by the	707
owner or by subsequent owners of the facility. All easements or	708
covenants required under this section shall be recorded in the	709
office of the county recorder of the county in which the facility	710
is located, and the recording fees shall be paid by the owner	711
enter into an environmental covenant with the director in	712
accordance with sections 5301.80 to 5301.92 of the Revised Code.	713

(E) As used in this section, "commerce" includes, but is not	714
limited to, agriculture, forestry, and housing.	715

Sec. 3745.01.  There is hereby created the environmental	716
protection agency, headed by the director of environmental	717
protection. The agency, under the supervision of the director,	718
shall administer the laws pertaining to chemical emergency	719
planning, community right-to-know, and toxic chemical release	720
reporting; the cessation of chemical handling operations; the	721
prevention, control, and abatement of air and water pollution;	722
public water supply; comprehensive water resource management	723
planning; and the disposal and treatment of solid wastes,	724
infectious wastes, construction and demolition debris, hazardous	725
waste, sewage, industrial waste, and other wastes. The director	726
may do all of the following:	727

(A) Provide such methods of administration, appoint such	728
personnel, make such reports, and take such other action as may be	729
necessary to comply with the requirements of the federal laws and	730
regulations pertaining to chemical emergency planning, community	731
right-to-know, and toxic chemical release reporting; air and water	732
pollution control; public water supply; water resource planning;	733
and waste disposal and treatment;	734

(B) Procure by contract the temporary or intermittent	735
services of experts or consultants, or organizations thereof, when	736
those services are to be performed on a part-time or	737
fee-for-service basis and do not involve the performance of	738
administrative duties;	739

(C) Advise, consult, cooperate, and enter into contracts or	740
agreements with any other agencies of the state, the federal	741
government, other states, and interstate agencies and with	742
affected groups, political subdivisions, and industries in	743
furtherance of the purposes of this chapter and Chapters 3704.,	744
3714., 3734., 3751., 3752., 6109., and 6111. of the Revised Code;	745

(D) Establish advisory boards in accordance with section	746
121.13 of the Revised Code;	747

(E) Accept on behalf of the state any grant, gift, or	748
contribution made for toxic chemical release reporting, air or	749
water pollution control, public water supply, water resource	750
planning, waste disposal or treatment, or related purposes, and	751
expend it for those purposes;	752

(F) Make an annual report to the governor and the general	753
assembly on activities and expenditures as well as recommendations	754
for such additional legislation as the director considers	755
appropriate to carry out the director's duties or accomplish the	756
purposes of this section;	757

(G) Enter into environmental covenants in accordance with	758
sections 5301.80 to 5301.92 of the Revised Code, and grant or	759
accept easements or sell real property pursuant to section	760
3734.22, 3734.24, 3734.25, or 3734.26 of the Revised Code, as	761
applicable.	762

The agency shall utilize the laboratory facilities of the	763
department of health and other state institutions and agencies to	764
the maximum extent that the utilization is practicable,	765
economical, and technically satisfactory.	766

The director shall maintain and keep available for public	767
inspection, at the director's principal office, a current register	768
of all applications filed for permits, leases, licenses,	769
variances, certificates, and approval of plans and specifications	770
and of publicly owned treatment works pretreatment programs under	771
the director's jurisdiction, hearings pending, the director's	772
final action thereon, and the dates on which the filings,	773
hearings, and final actions occur. The director shall maintain and	774
keep available for public inspection at the director's principal	775
office all plans, reports, and other documents required to be	776
filed with the emergency response commission under Chapter 3750.	777
of the Revised Code and rules adopted under it, and all reports	778
and other documents required to be filed with the director under	779
Chapter 3751. of the Revised Code and rules adopted under it,	780
subject to the requirements of those chapters and rules adopted	781
under them for the protection of trade secrets and confidential	782
business information from disclosure to persons not authorized	783
under those laws to receive trade secret or confidential business	784
information.	785

Sec. 3746.04.  Within one year after September 28, 1994, the	786
director of environmental protection, in accordance with Chapter	787
119. of the Revised Code and with the advice of the	788
multidisciplinary council appointed under section 3746.03 of the	789
Revised Code, shall adopt, and subsequently may amend, suspend, or	790
rescind, rules that do both of the following:	791

(A) Revise the rules adopted under Chapters 3704., 3714.,	792
3734., 6109., and 6111. of the Revised Code to incorporate the	793
provisions necessary to conform those rules to the requirements of	794
this chapter. The amended rules adopted under this division also	795
shall establish response times for all submittals to the	796
environmental protection agency required under this chapter or	797
rules adopted under it.	798

(B) Establish requirements and procedures that are reasonably	799
necessary for the implementation and administration of this	800
chapter, including, without limitation, all of the following:	801

(1) Appropriate generic numerical clean-up standards for the	802
treatment or removal of soils, sediments, and water media for	803
hazardous substances and petroleum. The rules shall establish	804
separate generic numerical clean-up standards based upon the	805
intended use of properties after the completion of voluntary	806
actions, including industrial, commercial, and residential uses	807
and such other categories of land use as the director considers to	808
be appropriate. The generic numerical clean-up standards	809
established for each category of land use shall be the	810
concentration of each contaminant that may be present on a	811
property that shall ensure protection of public health and safety	812
and the environment for the reasonable exposure for that category	813
of land use. When developing the standards, the director shall	814
consider such factors as all of the following:	815

(a) Scientific information, including, without limitation,	816
toxicological information and realistic assumptions regarding	817
human and environmental exposure to hazardous substances or	818
petroleum;	819

(b) Climatic factors;

820

(c) Human activity patterns;

821

(d) Current statistical techniques;

822

(e) For petroleum at industrial property, alternatives to the	823
use of total petroleum hydrocarbons.	824

The generic numerical clean-up standards established under	825
division (B)(1) of this section shall be consistent with and	826
equivalent in scope, content, and coverage to any applicable	827
standard established by federal environmental laws and regulations	828
adopted under them, including, without limitation, the "Federal	829
Water Pollution Control Act Amendments of 1972," 86 Stat. 886, 33	830
U.S.C.A. 1251, as amended; the "Resource Conservation and Recovery	831
Act of 1976," 90 Stat. 2806, 42 U.S.C.A. 6921, as amended; the	832
"Toxic Substances Control Act," 90 Stat. 2003 (1976), 15 U.S.C.A.	833
2601, as amended; the "Comprehensive Environmental Response,	834
Compensation, and Liability Act of 1980," 94 Stat. 2779, 42	835
U.S.C.A. 9601, as amended; and the "Safe Drinking Water Act," 88	836
Stat. 1660 (1974), 42 U.S.C.A. 300f, as amended.	837

In order for the rules adopted under division (B)(1) of this	838
section to require that any such federal environmental standard	839
apply to a property, the property shall meet the requirements of	840
the particular federal statute or regulation involved in the	841
manner specified by the statute or regulation.	842

The generic numerical clean-up standards for petroleum at	843
commercial or residential property shall be the standards	844
established in rules adopted under division (B) of section	845
3737.882 of the Revised Code.	846

(2)(a) Procedures for performing property-specific risk	847
assessments that would be performed at a property to demonstrate	848
that the remedy evaluated in a risk assessment results in	849
protection of public health and safety and the environment instead	850
of complying with the generic numerical clean-up standards	851
established in the rules adopted under division (B)(1) of this	852
section. The risk assessment procedures shall describe a	853
methodology to establish, on a property-specific basis, allowable	854
levels of contamination to remain at a property to ensure	855
protection of public health and safety and the environment on the	856
property and off the property when the contamination is emanating	857
off the property, taking into account all of the following:	858

(i) The implementation of treatment, storage, or disposal, or	859
a combination thereof, of hazardous substances or petroleum;	860

(ii) The existence of institutional controls that eliminate	861
or mitigate exposure to hazardous substances or petroleum through	862
the restriction of access to hazardous substances or petroleumor	863
use of a property, including, without limitation, deed and water	864
use restrictionsactivity and use limitations, as defined in	865
section 5301.80 of the Revised Code;	866

(iii) The existence of engineering controls that eliminate or	867
mitigate exposure to hazardous substances or petroleum through	868
containment of, control of, or restrictions of access to hazardous	869
substances or petroleum, including, without limitation, fences,	870
cap systems, cover systems, and landscaping.	871

(b) The risk assessment procedures and levels of acceptable	872
risk set forth in the rules adopted under division (B)(2) of this	873
section shall be based upon all of the following:	874

(i) Scientific information, including, without limitation,	875
toxicological information and actual or proposed human and	876
environmental exposure;	877

(ii) Locational and climatic factors;

878

(iii) Surrounding land use and human activities;

879

(iv) Differing levels of remediation that may be required	880
when an existing land use is continued compared to when a	881
different land use follows the remediation.	882

(c) Any standards established pursuant to rules adopted under	883
division (B)(2) of this section shall be no more stringent than	884
standards established under the environmental statutes of this	885
state and rules adopted under them for the same contaminant in the	886
same environmental medium that are in effect at the time the risk	887
assessment is conducted.	888

(3) Minimum standards for phase I property assessments. The	889
standards shall specify the information needed to demonstrate that	890
there is no reason to believe that contamination exists on a	891
property. The rules adopted under division (B)(3) of this section,	892
at a minimum, shall require that a phase I property assessment	893
include all of the following:	894

(a) A review and analysis of deeds, mortgages, easements of	895
record, and similar documents relating to the chain of title to	896
the property that are publicly available or that are known to and	897
reasonably available to the owner or operator;	898

(b) A review and analysis of any previous environmental	899
assessments, property assessments, environmental studies, or	900
geologic studies of the property and any land within two thousand	901
feet of the boundaries of the property that are publicly available	902
or that are known to and reasonably available to the owner or	903
operator;	904

(c) A review of current and past environmental compliance	905
histories of persons who owned or operated the property;	906

(d) A review of aerial photographs of the property that	907
indicate prior uses of the property;	908

(e) Interviews with managers of activities conducted at the	909
property who have knowledge of environmental conditions at the	910
property;	911

(f) Conducting an inspection of the property consisting of a	912
walkover;	913

(g) Identifying the current and past uses of the property,	914
adjoining tracts of land, and the area surrounding the property,	915
including, without limitation, interviews with persons who reside	916
or have resided, or who are or were employed, within the area	917
surrounding the property regarding the current and past uses of	918
the property and adjacent tracts of land.	919

The rules adopted under division (B)(3) of this section shall	920
establish criteria to determine when a phase II property	921
assessment shall be conducted when a phase I property assessment	922
reveals facts that establish a reason to believe that hazardous	923
substances or petroleum have been treated, stored, managed, or	924
disposed of on the property if the person undertaking the phase I	925
property assessment wishes to obtain a covenant not to sue under	926
section 3746.12 of the Revised Code.	927

(4) Minimum standards for phase II property assessments. The	928
standards shall specify the information needed to demonstrate that	929
any contamination present at the property does not exceed	930
applicable standards or that the remedial activities conducted at	931
the property have achieved compliance with applicable standards.	932
The rules adopted under division (B)(4) of this section, at a	933
minimum, shall require that a phase II property assessment include	934
all of the following:	935

(a) A review and analysis of all documentation prepared in	936
connection with a phase I property assessment conducted within the	937
one hundred eighty days before the phase II property assessment	938
begins. The rules adopted under division (B)(4)(a) of this section	939
shall require that if a period of more than one hundred eighty	940
days has passed between the time that the phase I assessment of	941
the property was completed and the phase II assessment begins, the	942
phase II assessment shall include a reasonable inquiry into the	943
change in the environmental condition of the property during the	944
intervening period.	945

(b) Quality assurance objectives for measurements taken in	946
connection with a phase II assessment;	947

(c) Sampling procedures to ensure the representative sampling	948
of potentially contaminated environmental media;	949

(d) Quality assurance and quality control requirements for	950
samples collected in connection with phase II assessments;	951

(e) Analytical and data assessment procedures;

952

(f) Data objectives to ensure that samples collected in	953
connection with phase II assessments are biased toward areas where	954
information indicates that contamination by hazardous substances	955
or petroleum is likely to exist.	956

(5) Standards governing the conduct of certified	957
professionals, criteria and procedures for the certification of	958
professionals to issue no further action letters under section	959
3746.11 of the Revised Code, and criteria for the suspension and	960
revocation of those certifications. The issuance, denial,	961
suspension, and revocation of those certifications are subject to	962
Chapter 3745. of the Revised Code, and the director shall take any	963
such action regarding a certification as a final action.	964

The rules adopted under division (B)(5) of this section shall	965
do all of the following:	966

(a) Provide for the certification of environmental	967
professionals to issue no further action letters pertaining to	968
investigations and remedies in accordance with the criteria and	969
procedures set forth in the rules. The rules adopted under	970
division (B)(5)(a) of this section shall do at least all of the	971
following:	972

(i) Authorize the director to consider such factors as an	973
environmental professional's previous performance record regarding	974
such investigations and remedies and the environmental	975
professional's environmental compliance history when determining	976
whether to certify the environmental professional;	977

(ii) Ensure that an application for certification is reviewed	978
in a timely manner;	979

(iii) Require the director to certify any environmental	980
professional who the director determines complies with those	981
criteria;	982

(iv) Require the director to deny certification for any	983
environmental professional who does not comply with those	984
criteria.	985

(b) Establish an annual fee to be paid by environmental	986
professionals certified pursuant to the rules adopted under	987
division (B)(5)(a) of this section. The fee shall be established	988
at an amount calculated to defray the costs to the environmental	989
protection agency for the required reviews of the qualifications	990
of environmental professionals for certification and for the	991
issuance of the certifications.	992

(c) Develop a schedule for and establish requirements	993
governing the review by the director of the credentials of	994
environmental professionals who were deemed to be certified	995
professionals under division (D) of section 3746.07 of the Revised	996
Code in order to determine if they comply with the criteria	997
established in rules adopted under division (B)(5) of this	998
section. The rules adopted under division (B)(5)(c) of this	999
section shall do at least all of the following:	1000

(i) Ensure that the review is conducted in a timely fashion;

1001

(ii) Require the director to certify any such environmental	1002
professional who the director determines complies with those	1003
criteria;	1004

(iii) Require any such environmental professional initially	1005
to pay the fee established in the rules adopted under division	1006
(B)(5)(b) of this section at the time that the environmental	1007
professional is so certified by the director;	1008

(iv) Establish a time period within which any such	1009
environmental professional who does not comply with those criteria	1010
may obtain the credentials that are necessary for certification;	1011

(v) Require the director to deny certification for any such	1012
environmental professional who does not comply with those criteria	1013
and who fails to obtain the necessary credentials within the	1014
established time period.	1015

(d) Require that any information submitted to the director	1016
for the purposes of division (B)(5)(a) or (c) of this section	1017
comply with division (A) of section 3746.20 of the Revised Code;	1018

(e) Authorize the director to suspend or revoke the	1019
certification of an environmental professional if the director	1020
finds that the environmental professional's performance has	1021
resulted in the issuance of no further action letters under	1022
section 3746.11 of the Revised Code that are not consistent with	1023
applicable standards or finds that the certified environmental	1024
professional has not substantially complied with section 3746.31	1025
of the Revised Code;	1026

(f) Authorize the director to suspend for a period of not	1027
more than five years or to permanently revoke a certified	1028
environmental professional's certification for any violation of or	1029
failure to comply with an ethical standard established in rules	1030
adopted under division (B)(5) of this section.	1031

(g) Require the director to revoke the certification of an	1032
environmental professional if the director finds that the	1033
environmental professional falsified any information on the	1034
environmental professional's application for certification	1035
regarding the environmental professional's credentials or	1036
qualifications or any other information generated for the purposes	1037
of or use under this chapter or rules adopted under it;	1038

(h) Require the director permanently to revoke the	1039
certification of an environmental professional who has violated or	1040
is violating division (A) of section 3746.18 of the Revised Code;	1041

(i) Preclude the director from revoking the certification of	1042
an environmental professional who only conducts investigations and	1043
remedies at property contaminated solely with petroleum unless the	1044
director first consults with the director of commerce.	1045

(6) Criteria and procedures for the certification of	1046
laboratories to perform analyses under this chapter and rules	1047
adopted under it. The issuance, denial, suspension, and revocation	1048
of those certifications are subject to Chapter 3745. of the	1049
Revised Code, and the director of environmental protection shall	1050
take any such action regarding a certification as a final action.	1051

The rules adopted under division (B)(6) of this section shall	1052
do all of the following:	1053

(a) Provide for the certification to perform analyses of	1054
laboratories in accordance with the criteria and procedures	1055
established in the rules adopted under division (B)(6)(a) of this	1056
section and establish an annual fee to be paid by those	1057
laboratories. The fee shall be established at an amount calculated	1058
to defray the costs to the agency for the review of the	1059
qualifications of those laboratories for certification and for the	1060
issuance of the certifications. The rules adopted under division	1061
(B)(6)(a) of this section may provide for the certification of	1062
those laboratories to perform only particular types or categories	1063
of analyses, specific test parameters or group of test parameters,	1064
or a specific matrix or matrices under this chapter.	1065

(b) Develop a schedule for and establish requirements	1066
governing the review by the director of the operations of	1067
laboratories that were deemed to be certified laboratories under	1068
division (E) of section 3746.07 of the Revised Code in order to	1069
determine if they comply with the criteria established in rules	1070
adopted under division (B)(6) of this section. The rules adopted	1071
under division (B)(6)(b) of this section shall do at least all of	1072
the following:	1073

(i) Ensure that the review is conducted in a timely fashion;

1074

(ii) Require the director to certify any such laboratory that	1075
the director determines complies with those criteria;	1076

(iii) Require any such laboratory initially to pay the fee	1077
established in the rules adopted under division (B)(6)(a) of this	1078
section at the time that the laboratory is so certified by the	1079
director;	1080

(iv) Establish a time period within which any such laboratory	1081
that does not comply with those criteria may make changes in its	1082
operations necessary for the performance of analyses under this	1083
chapter and rules adopted under it in order to be certified by the	1084
director;	1085

(v) Require the director to deny certification for any such	1086
laboratory that does not comply with those criteria and that fails	1087
to make the necessary changes in its operations within the	1088
established time period.	1089

(c) Require that any information submitted to the director	1090
for the purposes of division (B)(6)(a) or (b) of this section	1091
comply with division (A) of section 3746.20 of the Revised Code;	1092

(d) Authorize the director to suspend or revoke the	1093
certification of a laboratory if the director finds that the	1094
laboratory's performance has resulted in the issuance of no	1095
further action letters under section 3746.11 of the Revised Code	1096
that are not consistent with applicable standards;	1097

(e) Authorize the director to suspend or revoke the	1098
certification of a laboratory if the director finds that the	1099
laboratory falsified any information on its application for	1100
certification regarding its credentials or qualifications;	1101

(f) Require the director permanently to revoke the	1102
certification of a laboratory that has violated or is violating	1103
division (A) of section 3746.18 of the Revised Code.	1104

(7) Information to be included in a no further action letter	1105
prepared under section 3746.11 of the Revised Code, including,	1106
without limitation, all of the following:	1107

(a) A summary of the information required to be submitted to	1108
the certified environmental professional preparing the no further	1109
action letter under division (C) of section 3746.10 of the Revised	1110
Code;	1111

(b) Notification that a risk assessment was performed in	1112
accordance with rules adopted under division (B)(2) of this	1113
section if such an assessment was used in lieu of generic	1114
numerical clean-up standards established in rules adopted under	1115
division (B)(1) of this section;	1116

(c) The contaminants addressed at the property, if any, their	1117
source, if known, and their levels prior to remediation;	1118

(d) The identity of any other person who performed work to	1119
support the request for the no further action letter as provided	1120
in division (B)(2) of section 3746.10 of the Revised Code and the	1121
nature and scope of the work performed by that person;	1122

(e) A list of the data, information, records, and documents	1123
relied upon by the certified environmental professional in	1124
preparing the no further action letter.	1125

(8) Methods for determining fees to be paid for the following	1126
services provided by the agency under this chapter and rules	1127
adopted under it:	1128

(a) Site- or property-specific technical assistance in	1129
developing or implementing plans in connection with a voluntary	1130
action;	1131

(b) Reviewing applications for and issuing consolidated	1132
standards permits under section 3746.15 of the Revised Code and	1133
monitoring compliance with those permits;	1134

(c) Negotiating, preparing, and entering into agreements	1135
necessary for the implementation and administration of this	1136
chapter and rules adopted under it;	1137

(d) Reviewing no further action letters, issuing covenants	1138
not to sue, and monitoring compliance with any terms and	1139
conditions of those covenants and with operation and maintenance	1140
agreements entered into pursuant to those covenants, including,	1141
without limitation, conducting audits of properties where	1142
voluntary actions are being or were conducted under this chapter	1143
and rules adopted under it.	1144

The fees established pursuant to the rules adopted under	1145
division (B)(8) of this section shall be at a level sufficient to	1146
defray the direct and indirect costs incurred by the agency for	1147
the administration and enforcement of this chapter and rules	1148
adopted under it other than the provisions regarding the	1149
certification of professionals and laboratories.	1150

(9) Criteria for selecting the no further action letters	1151
issued under section 3746.11 of the Revised Code that will be	1152
audited under section 3746.17 of the Revised Code, and the scope	1153
and procedures for conducting those audits. The rules adopted	1154
under division (B)(9) of this section, at a minimum, shall require	1155
the director to establish priorities for auditing no further	1156
action letters to which any of the following applies:	1157

(a) The letter was prepared by an environmental professional	1158
who was deemed to be a certified professional under division (D)	1159
of section 3746.07 of the Revised Code, but who does not comply	1160
with the criteria established in rules adopted under division	1161
(B)(5) of this section as determined pursuant to rules adopted	1162
under division (B)(5)(d) of this section;.	1163

(b) The letter was submitted fraudulently;.

1164

(c) The letter was prepared by a certified environmental	1165
professional whose certification subsequently was revoked in	1166
accordance with rules adopted under division (B)(5) of this	1167
section, or analyses were performed for the purposes of the no	1168
further action letter by a certified laboratory whose	1169
certification subsequently was revoked in accordance with rules	1170
adopted under division (B)(6) of this section;.	1171

(d) A covenant not to sue that was issued pursuant to the	1172
letter was revoked under this chapter;.	1173

(e) The letter was for a voluntary action that was conducted	1174
pursuant to a risk assessment in accordance with rules adopted	1175
under division (B)(2) of this section;.	1176

(f) The letter was for a voluntary action that included as	1177
remedial activities engineering controls authorized under section	1178
3746.05 of the Revised Code or restrictions on theactivity and	1179
use of the relevant property identified pursuant tolimitations,	1180
as defined in section 5301.80 of the Revised Code, identified in	1181
an environmental covenant that was recorded or entered under	1182
division (C)(3) of section 3746.10 of the Revised Code.	1183

The rules adopted under division (B)(9) of this section shall	1184
provide for random audits of no further action letters to which	1185
the rules adopted under divisions (B)(9)(a) to (f) of this section	1186
do not apply.	1187

(10) A classification system to characterize ground water	1188
according to its capability to be used for human use and its	1189
impact on the environment and a methodology that shall be used to	1190
determine when ground water that has become contaminated from	1191
sources on a property for which a covenant not to sue is requested	1192
under section 3746.11 of the Revised Code shall be remediated to	1193
the standards established under division (B)(1) or (2) of this	1194
section.	1195

(a) In adopting rules under division (B)(10) of this section	1196
to characterize ground water according to its capability for human	1197
use, the director shall consider all of the following:	1198

(i) The presence of legally enforceable, reliable	1199
restrictions on the use of ground water, including, without	1200
limitation, local rules or ordinances;	1201

(ii) The presence of regional commingled contamination from	1202
multiple sources that diminishes the quality of ground water;	1203

(iii) The natural quality of ground water;

1204

(iv) Regional availability of ground water and reasonable	1205
alternative sources of drinking water;	1206

(v) The productivity of the aquifer;

1207

(vi) The presence of restrictions on the use of ground water	1208
implemented under this chapter and rules adopted under it;	1209

(vii) The existing use of ground water.

1210

(b) In adopting rules under division (B)(10) of this section	1211
to characterize ground water according to its impacts on the	1212
environment, the director shall consider both of the following:	1213

(i) The risks posed to humans, fauna, surface water,	1214
sediments, soil, air, and other resources by the continuing	1215
presence of contaminated ground water;	1216

(ii) The availability and feasibility of technology to remedy	1217
ground water contamination.	1218

(11) Governing the application for and issuance of variances	1219
under section 3746.09 of the Revised Code;	1220

(12)(a) In the case of voluntary actions involving	1221
contaminated ground water, specifying the circumstances under	1222
which the generic numerical clean-up standards established in	1223
rules adopted under division (B)(1) of this section and standards	1224
established through a risk assessment conducted pursuant to rules	1225
adopted under division (B)(2) of this section shall be	1226
inapplicable to the remediation of contaminated ground water and	1227
under which the standards for remediating contaminated ground	1228
water shall be established on a case-by-case basis prior to the	1229
commencement of the voluntary action pursuant to rules adopted	1230
under division (B)(12)(b) of this section;	1231

(b) Criteria and procedures for the case-by-case	1232
establishment of standards for the remediation of contaminated	1233
ground water under circumstances in which the use of the generic	1234
numerical clean-up standards and standards established through a	1235
risk assessment are precluded by the rules adopted under division	1236
(B)(12)(a) of this section. The rules governing the procedures for	1237
the case-by-case development of standards for the remediation of	1238
contaminated ground water shall establish application, public	1239
participation, adjudication, and appeals requirements and	1240
procedures that are equivalent to the requirements and procedures	1241
established in section 3746.09 of the Revised Code and rules	1242
adopted under division (B)(11) of this section, except that the	1243
procedural rules shall not require an applicant to make the	1244
demonstrations set forth in divisions (A)(1) to (3) of section	1245
3746.09 of the Revised Code and shall not require the director to	1246
obtain the advice of the property revitalization board created in	1247
section 3746.08 of the Revised Code regarding any application	1248
submitted pursuant to the rules adopted under division (B)(12)(b)	1249
of this section.	1250

(13) A definition of the evidence that constitutes sufficient	1251
evidence for the purpose of division (A)(5) of section 3746.02 of	1252
the Revised Code.	1253

At least thirty days before filing the proposed rules	1254
required to be adopted under this section with the secretary of	1255
state, director of the legislative service commission, and joint	1256
committee on agency rule review in accordance with divisions (B)	1257
and (H) of section 119.03 of the Revised Code, the director of	1258
environmental protection shall hold at least one public meeting on	1259
the proposed rules in each of the five districts into which the	1260
agency has divided the state for administrative purposes.	1261

Sec. 3746.10.  (A) Except as otherwise provided in section	1262
3746.02 of the Revised Code, any person may undertake a voluntary	1263
action under this chapter and rules adopted under it to identify	1264
and address potential sources of contamination by hazardous	1265
substances or petroleum of soil, sediments, surface water, or	1266
ground water on or underlying property and to establish that the	1267
property meets applicable standards. The voluntary action may	1268
include any one or more of the following elements:	1269

(1) A phase I property assessment conducted in accordance	1270
with rules adopted under division (B)(3) of section 3746.04 of the	1271
Revised Code or division (B) of section 3746.07 of the Revised	1272
Code, as appropriate;	1273

(2) A phase II property assessment conducted in accordance	1274
with rules adopted under division (B)(4) of section 3746.04 of the	1275
Revised Code or division (C) of section 3746.07 of the Revised	1276
Code, as appropriate;	1277

(3) A sampling plan;

1278

(4) A remediation plan;

1279

(5) Remedial activities;

1280

(6) Such other activities as the person undertaking the	1281
voluntary action considers to be necessary or appropriate to	1282
address the contamination.	1283

When the person undertaking a voluntary action determines	1284
that the property meets applicable standards, hethe person may	1285
seek a no further action letter from a certified professional. A	1286
no further action letter may be issued for the property at any	1287
stage of the identification of potential hazardous substance or	1288
petroleum contamination or remedial activities after a phase I or	1289
II property assessment has demonstrated that there is no reason to	1290
believe that there has been a release of hazardous substances or	1291
petroleum at or upon the property, that information indicates that	1292
there has been a release of hazardous substances or petroleum at	1293
or upon the property, but that the release is not in excess of	1294
applicable standards, or that if there has been such a release in	1295
excess of applicable standards, those standards have been achieved	1296
through remedial activities or will be achieved in accordance with	1297
the timeframes established in an operation and maintenance	1298
agreement entered into under division (A)(3) of section 3746.12 of	1299
the Revised Code or in such an agreement and a consolidated	1300
standards permit issued under section 3746.15 of the Revised Code.	1301

(B)(1) A person who is participating in the voluntary action	1302
program under this chapter and rules adopted under it shall do	1303
both of the following:	1304

(a) Utilize the services of a certified laboratory to perform	1305
any analyses that form the basis for the issuance of a no further	1306
action letter for a property and ensure that a laboratory performs	1307
in connection with a voluntary action only those analyses for	1308
which it is certified under rules adopted under division (B)(6) of	1309
section 3746.04 of the Revised Code or for which it is qualified	1310
prior to the adoption of those rules;	1311

(b) Utilize the services of a certified professional to	1312
verify that the property and any remedial activities undertaken at	1313
the property in connection with a voluntary action comply with	1314
applicable standards and, if those standards are met, to issue to	1315
the person a no further action letter for the property. For the	1316
purposes of such a verification, the certified professional shall	1317
perform and review all work that was conducted to support the	1318
request for the no further action letter or shall ensure that the	1319
work has been performed and reviewed by other persons with	1320
expertise and competence in areas other than those of the	1321
certified professional's expertise and competence as necessary for	1322
the issuance of the no further action letter.	1323

(2) No person who is participating in the voluntary action	1324
program shall do any of the following:	1325

(a) If the person also is a certified professional, prepare a	1326
no further action letter in connection with a voluntary action	1327
conducted at a property that hethe certified professional owns or	1328
operates;	1329

(b) Utilize the services of a certified professional who is	1330
employed by, affiliated with, or related to himthe participant or	1331
who was employed by or affiliated with himthe participant during	1332
the year preceding the date that hethe participant entered into	1333
the contract to utilize the services of the certified professional	1334
in connection with the voluntary action;	1335

(c) Utilize the services of a certified laboratory that is	1336
owned by or affiliated with himthe participant, that is owned by	1337
a person related to himthe participant, or that was owned by or	1338
affiliated with himthe participant during the year preceding the	1339
date that hethe participant entered into the contract to utilize	1340
the services of the certified laboratory in connection with the	1341
voluntary action, to perform any analyses that form the basis for	1342
the issuance of a no further action letter in connection with a	1343
voluntary action.	1344

A covenant not to sue issued under section 3746.12 of the	1345
Revised Code to a person who violated division (B)(2)(a), (b), or	1346
(c) of this section with respect to the no further action letter	1347
upon which issuance of the covenant was based is void.	1348

Except as otherwise provided in division (B)(2) of this	1349
section, a person who is participating in the voluntary action	1350
program may utilize an independent contractor to serve as a	1351
certified professional or certified laboratory.	1352

(C) In order to obtain a no further action letter, a person	1353
undertaking a voluntary action shall submit to a certified	1354
professional all of the following, as applicable:	1355

(1) Information demonstrating that there is no contamination	1356
by hazardous substances or petroleum of soil, sediments, surface	1357
water, or ground water on or underlying the property in	1358
concentrations exceeding applicable standards. The demonstrations	1359
shall be based upon the findings of a phase I or phase II property	1360
assessment.	1361

(2) If remedial activities were conducted in connection with	1362
the voluntary action, data demonstrating that the remedy meets	1363
applicable standards or will achieve applicable standards in	1364
accordance with the timeframes established in an operation and	1365
maintenance agreement entered into under division (A)(3) of	1366
section 3746.12 of the Revised Code or in such an agreement and a	1367
consolidated standards permit issued under section 3746.15 of the	1368
Revised Code;	1369

(3) If the remedy relies on restrictions on theactivity and	1370
use of the propertylimitations, as defined in section 5301.80 of	1371
the Revised Code, to achieve applicable standards, a demonstration	1372
that the use restrictions havean environmental covenant, created	1373
in accordance with sections 5301.80 to 5301.92 of the Revised	1374
Code, has been recorded in the office of the county recorder of	1375
the county in which the property is located, or havehas been	1376
entered in the appropriate register for registered land as defined	1377
in section 5309.01 of the Revised Code, in compliance with section	1378
3746.14 of the Revised Code;	1379

(4) If the remedy relies on engineering controls that contain	1380
or control the release of hazardous substances or petroleum at or	1381
from the property, a plan for the proper operation and maintenance	1382
of the engineering controls.	1383

(D) Except as otherwise specifically provided in this chapter	1384
and rules adopted under it, voluntary actions under this chapter	1385
and rules adopted under it shall be undertaken in compliance with	1386
all applicable laws of this state and rules adopted under them and	1387
with applicable ordinances, resolutions, and rules of political	1388
subdivisions of this state.	1389

Sec. 3746.14.  (A) Except as otherwise provided in division	1390
(B) of this section, a no further action letter issued for a	1391
property under section 3746.11 of the Revised Code, a covenant not	1392
to sue issued for the property under section 3746.12 of the	1393
Revised Code, and any restrictions on the use of such	1394
environmental covenant for the property identified pursuant to	1395
division (C)(3) of section 3746.10created in accordance with	1396
sections 5301.80 to 5301.92 of the Revised Code shall be filed in	1397
the office of the county recorder of the county in which the	1398
property is located by the person to whom the covenant not to sue	1399
was issued and shall be recorded in the same manner as a deed to	1400
the property. The no further action letter, covenant not to sue,	1401
and use restrictionsenvironmental covenant, if any, shall run	1402
with the property.	1403

No person shall fail to comply with this division.

1404

(B) Pursuant to Chapter 5309. of the Revised Code, a no	1405
further action letter, a covenant not to sue, and, if applicable,	1406
any operation and maintenance agreement and use restrictions	1407
environmental covenant prepared, issued, entered into, or	1408
identified under this chapter and rules adopted under it, or	1409
created under sections 5301.80 to 5301.92 of the Revised Code, as	1410
applicable, in connection with registered land, as defined in	1411
section 5309.01 of the Revised Code, shall be entered as a	1412
memorial on the page of the register where the title of the owner	1413
is registered.	1414

(C) A no further action letter, a covenant not to sue, and	1415
any agreement authorized to be entered into and entered into under	1416
this chapter and rules adopted under it may be transferred by the	1417
recipient to any other person by assignment or in conjunction with	1418
the acquisition of title to the property to which the document	1419
applies.	1420

Sec. 5301.80.  As used in sections 5301.80 to 5301.90 of the	1421
Revised Code:	1422

(A) "Activity and use limitations" means restrictions or	1423
obligations created under sections 5301.80 to 5301.92 of the	1424
Revised Code with respect to real property.	1425

(B) "Agency" means the environmental protection agency or any	1426
other state or federal agency that determines or approves the	1427
environmental response project pursuant to which an environmental	1428
covenant is created.	1429

(C) "Common interest community" means a condominium, a	1430
cooperative, or other real property with respect to which a	1431
person, by virtue of the person's ownership of a parcel of real	1432
property, is obligated to pay property taxes or insurance premiums	1433
or to pay for maintenance or improvement of other real property	1434
described in a recorded covenant that creates the common interest	1435
community.	1436

(D) "Environmental covenant" or "covenant" means a servitude	1437
arising under an environmental response project that imposes	1438
activity and use limitations and that meets the requirements	1439
established in section 5301.82 of the Revised Code.	1440

(E) "Environmental response project" means a plan or work	1441
performed for environmental remediation of real property or to	1442
protect ecological features associated with real property and	1443
conducted in accordance with one of the following:	1444

(1) Under a federal or state program governing environmental	1445
remediation of real property;	1446

(2) Pursuant to mitigation requirements associated with the	1447
401 water quality certification program or the isolated wetland	1448
program as required by Chapter 6111. of the Revised Code;	1449

(3) Pursuant to a grant commitment or loan agreement entered	1450
into pursuant to section 6111.036 or 6111.037 of the Revised Code.	1451

(F) "Holder" means an agency or person as specified in	1452
division (A) of section 5301.81 of the Revised Code.	1453

(G) "Person" includes the state, a political subdivision,	1454
another state or local entity, the United States and any agency or	1455
instrumentality of it, and any legal entity defined as a person	1456
under section 1.59 of the Revised Code.	1457

(H) "Record," when used as a noun, means information that is	1458
inscribed on a tangible medium or that is stored in an electronic	1459
or other medium and is retrievable in perceivable form.	1460

Sec. 5301.81. (A) An agency may be a holder of an	1461
environmental covenant. In addition, any person, including a	1462
person that owns an interest in the real property that is the	1463
subject of an environmental covenant, may be a holder. An	1464
environmental covenant may identify more than one holder.	1465

(B) The interest of a holder is an interest in real property.	1466
However, a right of an agency under sections 5301.80 to 5301.92 of	1467
the Revised Code or under an environmental covenant, other than a	1468
right as a holder, is not an interest in real property.	1469

Sec. 5301.82.  (A) An environmental covenant shall contain	1470
all of the following:	1471

(1) A statement that the instrument is an environmental	1472
covenant executed pursuant to sections 5301.80 to 5301.92 of the	1473
Revised Code;	1474

(2) A legally sufficient description of the real property	1475
that is subject to the covenant;	1476

(3) A description of the activity and use limitations on the	1477
real property;	1478

(4) Requirements for notice following transfer of a specified	1479
interest in, or concerning proposed changes in the use of,	1480
applications for building permits for, or proposals for any site	1481
work affecting contamination on, the property that is subject to	1482
the covenant;	1483

(5) The name or identity of every holder;

1484

(6) Rights of access to the property granted in connection	1485
with implementation or enforcement of the covenant;	1486

(7) The signatures of the applicable agency, every holder,	1487
and, unless waived by the agency, every owner of the fee simple of	1488
the real property that is subject to the environmental covenant;	1489

(8) An identification of the name and location of any	1490
administrative record for the environmental response project	1491
reflected in the environmental covenant.	1492

(B) In addition to the information required by division (A)	1493
of this section, an environmental covenant may contain other	1494
information, restrictions, and requirements agreed to by the	1495
persons who signed the covenant, including any of the following:	1496

(1) Requirements for periodic reporting describing compliance	1497
with the covenant;	1498

(2) A brief narrative description of contamination on the	1499
property and its remedy, including the contaminants of concern,	1500
the pathways of exposure, limits on exposure, and the location and	1501
extent of the contamination;	1502

(3) Limitations on amendment or termination of the covenant	1503
in addition to those established in sections 5301.89 and 5301.90	1504
of the Revised Code;	1505

(4) Rights of the holder in addition to the right to enforce	1506
the covenant pursuant to section 5301.91 of the Revised Code.	1507

(C) In addition to other conditions for an agency's approval	1508
of an environmental covenant, the agency may require those persons	1509
specified by the agency who have interests in the real property	1510
that is the subject of the environmental covenant to sign the	1511
covenant.	1512

Sec. 5301.83.  (A) A copy of an environmental covenant shall	1513
be provided to all of the following in a manner required by the	1514
applicable agency:	1515

(1) Each person that signed the environmental covenant;

1516

(2) Each person holding a recorded interest in the real	1517
property that is subject to the environmental covenant;	1518

(3) Each person in possession of the real property that is	1519
subject to the environmental covenant;	1520

(4) Each unit of local government in which the real property	1521
that is subject to the covenant is located;	1522

(5) Any other person that the agency requires.

1523

(B) The validity of an environmental covenant is not affected	1524
by failure to provide a copy of the environmental covenant as	1525
required under this section.	1526

Sec. 5301.84. An agency is bound by any obligation that it	1527
expressly assumes in an environmental covenant, but an agency does	1528
not assume obligations merely by signing an environmental	1529
covenant. Any other person that signs an environmental covenant is	1530
bound by the obligations that the person assumes in the covenant,	1531
but signing the covenant does not change obligations, rights, or	1532
protections that are granted or imposed under law other than	1533
sections 5301.80 to 5301.92 of the Revised Code, except as	1534
provided in the covenant.	1535

Sec. 5301.85.  (A) An environmental covenant that complies	1536
with sections 5301.80 to 5301.92 of the Revised Code runs with the	1537
land.	1538

(B) An environmental covenant that is otherwise effective is	1539
valid and enforceable even if any of the following limitations on	1540
enforcement of interests applies:	1541

(1) It is not appurtenant to an interest in real property.

1542

(2) It can be or has been assigned to a person other than the	1543
original holder.	1544

(3) It is not of a character that has been recognized	1545
traditionally at common law.	1546

(4) It imposes a negative burden.

1547

(5) It imposes an affirmative obligation on a person having	1548
an interest in the real property or on the holder.	1549

(6) The benefit or burden of the environmental covenant does	1550
not touch or concern real property.	1551

(7) There is no privity of estate or contract.

1552

(8) The holder dies, ceases to exist, resigns, or is	1553
replaced.	1554

(9) The owner of an interest that is subject to the	1555
environmental covenant and the holder are the same person.	1556

(C) An instrument that creates restrictions or obligations	1557
with respect to real property that would qualify as activity and	1558
use limitations except for the fact that the instrument was	1559
recorded before the effective date of sections 5301.80 to 5301.92	1560
of the Revised Code is not invalid or unenforceable because of any	1561
of the limitations on enforcement of interests described in	1562
division (B) of this section or because it was identified as an	1563
easement, servitude, deed restriction, or other interest. Sections	1564
5301.80 to 5301.92 of the Revised Code do not apply in any other	1565
respect to such an instrument.	1566

(D) Sections 5301.80 to 5301.92 of the Revised Code do not	1567
invalidate or render unenforceable any interest, whether	1568
designated as an environmental covenant or other interest, that is	1569
otherwise enforceable under the laws of this state.	1570

Sec. 5301.86. With respect to interests in real property in	1571
existence at the time that an environmental covenant is created or	1572
amended, all of the following apply:	1573

(A) An interest that has priority under other law is not	1574
affected by an environmental covenant unless the person that owns	1575
the interest agrees to subordinate that interest to the covenant.	1576

(B) Sections 5301.80 to 5301.92 of the Revised Code do not	1577
require a person that owns a prior interest to subordinate that	1578
interest to an environmental covenant or to agree to be bound by	1579
the covenant.	1580

(C) A subordination agreement may be contained in an	1581
environmental covenant or in a separate record. If the	1582
environmental covenant covers commonly owned property in a common	1583
interest community, the record may be signed by any person who is	1584
authorized by the governing board of the owners' association of	1585
the common interest community.	1586

(D) An agreement by a person to subordinate a prior interest	1587
to an environmental covenant affects the priority of that	1588
persons's interest, but does not by itself impose any affirmative	1589
obligation on the person with respect to the environmental	1590
covenant.	1591

Sec. 5301.87. Sections 5301.80 to 5301.92 of the Revised Code	1592
do not authorize a use of real property that is otherwise	1593
prohibited by zoning, by law other than sections 5301.80 to	1594
5301.92 of the Revised Code regulating use of real property, or by	1595
a recorded instrument that has priority over an environmental	1596
covenant. An environmental covenant may prohibit or restrict uses	1597
of real property that are authorized by zoning or by law other	1598
than sections 5301.80 to 5301.92 of the Revised Code.	1599

Sec. 5301.88.  (A) Except as otherwise provided in division	1600
(B) of this section, an environmental covenant and any amendment	1601
or termination of the covenant shall be filed in the office of the	1602
county recorder of each county in which the real property that is	1603
subject to the covenant is located and shall be recorded in the	1604
same manner as a deed to the property. For purposes of indexing, a	1605
holder shall be treated as a grantee.	1606

(B) Pursuant to Chapter 5309. of the Revised Code, an	1607
environmental covenant and any amendment or termination of the	1608
covenant in connection with registered land, as defined in section	1609
5309.01 of the Revised Code, shall be entered as a memorial on the	1610
page of the register where the title of the owner is registered.	1611

(C) Except as otherwise provided in division (C) of section	1612
5301.89 of the Revised Code, an environmental covenant is subject	1613
to the laws of this state governing recording and priority of	1614
interest in real property.	1615

Sec. 5301.89. (A) An environmental covenant is perpetual	1616
unless any of the following applies:	1617

(1) The environmental covenant is limited by its terms to a	1618
specific duration or is terminated by its terms by the occurrence	1619
of a specific event.	1620

(2) The environmental covenant is terminated by consent	1621
pursuant to section 5301.90 of the Revised Code.	1622

(3) The environmental covenant is terminated pursuant to	1623
division (B) of this section.	1624

(4) The environmental covenant is terminated by foreclosure	1625
of an interest that has priority over the environmental covenant.	1626

(5) The environmental covenant is terminated or modified in	1627
an eminent domain proceeding, but only if all of the following	1628
apply:	1629

(a) The agency that signed the covenant is a party to the	1630
proceeding.	1631

(b) All persons identified in divisions (A) and (B) of	1632
section 5301.90 of the Revised code are given notice of the	1633
pendency of the proceeding.	1634

(c) The court determines, after a hearing, that the	1635
termination or modification will not adversely affect human health	1636
or safety or the environment.	1637

(B) If the agency that signed an environmental covenant has	1638
determined that the intended benefits of the covenant can no	1639
longer be realized, a court, under the doctrine of changed	1640
circumstances, in an action in which all persons identified in	1641
divisions (A) and (B) of section 5301.90 of the Revised Code have	1642
been given notice, may terminate the covenant or reduce its burden	1643
on the real property that is subject to the covenant.	1644

(C) Except as otherwise provided in divisions (A) and (B) of	1645
this section, an environmental covenant may not be extinguished,	1646
limited, or impaired through issuance of a tax deed, foreclosure	1647
of a tax lien, or application of the doctrine of adverse	1648
possession, prescription, abandonment, waiver, lack of	1649
enforcement, or acquiescence or a similar doctrine.	1650

(D) An environmental covenant may not be extinguished,	1651
limited, or impaired by application of sections 5301.47 to 5301.56	1652
of the Revised Code.	1653

Sec. 5301.90.  (A) An environmental covenant may be amended	1654
or terminated by consent only if the amendment or termination is	1655
signed by all of the following:	1656

(1) The applicable agency;

1657

(2) Unless waived by that agency, the current owner of the	1658
fee simple of the real property that is subject to the	1659
environmental covenant;	1660

(3) Each person that originally signed the covenant unless	1661
the person waived in a signed record the right to consent or a	1662
court finds that the person no longer exists or cannot be located	1663
or identified with the exercise of reasonable diligence;	1664

(4) Except as otherwise provided in division (D)(2) of this	1665
section, each holder.	1666

(B) If an interest in real property is subject to an	1667
environmental covenant, the interest is not affected by an	1668
amendment of the covenant unless the current owner of the interest	1669
consents in writing to the amendment or has waived in a signed	1670
record the right to consent to amendments.	1671

(C) Except for an assignment undertaken pursuant to a	1672
governmental reorganization, assignment of an environmental	1673
covenant to a new holder is an amendment of the covenant.	1674

(D) Except as otherwise provided in an environmental	1675
covenant, both of the following apply:	1676

(1) A holder may not assign its interest without consent of	1677
the other parties to the covenant.	1678

(2) A holder may be removed and replaced by agreement of the	1679
other parties specified in division (A) of this section.	1680

(E) A court of competent jurisdiction may fill a vacancy in	1681
the position of holder.	1682

Sec. 5301.91.  (A) A civil action for injunctive or other	1683
equitable relief for violation of an environmental covenant may be	1684
maintained by any of the following:	1685

(1) A party to the covenant;

1686

(2) The environmental protection agency;

1687

(3) The applicable agency if it is other than the	1688
environmental protection agency;	1689

(4) Any person to whom the covenant expressly grants the	1690
authority to maintain such an action;	1691

(5) A person whose interest in the real property or whose	1692
collateral or liability may be affected by the alleged violation	1693
of the covenant;	1694

(6) A unit of local government in which the real property	1695
that is subject to the covenant is located.	1696

(B) Sections 5301.80 to 5301.92 of the Revised Code do not	1697
limit the regulatory authority of the applicable agency or the	1698
environmental protection agency if it is not the applicable agency	1699
under any law other than sections 5301.80 to 5301.92 of the	1700
Revised Code with respect to an environmental response project.	1701

(C) A person is not responsible for or subject to liability	1702
for environmental remediation solely because it has the right to	1703
enforce an environmental covenant.	1704

Sec. 5301.92.  Sections 5301.80 to 5301.92 of the Revised	1705
Code modify, limit, or supersede the "Electronic Signatures in	1706
Global and National Commerce Act," 114 Stat. 464 (2000), 15 U.S.C.	1707
7001 et seq., as amended, except that sections 5301.80 to 5301.92	1708
of the Revised Code do not modify, limit, or supersede section 101	1709
of that act, 15 U.S.C. 7001(a), as amended, or authorize	1710
electronic delivery of any of the notices described in section 103	1711
of that act, 15 U.S.C. 7003(b), as amended.	1712

Section 2. That existing sections 123.01, 317.08, 3734.22,	1713
3734.24, 3734.25, 3734.26, 3745.01, 3746.04, 3746.10, and 3746.14	1714
of the Revised Code are hereby repealed.	1715