As Reported by the Senate Energy, Natural Resources and Environment Committee

125th General Assembly Regular Session 2003-2004

Sub. H. B. No. 516

Representatives Seitz, McGregor, Widener, Callender, Allen, Barrett, Beatty, Boccieri, Calvert, Carano, Carmichael, Chandler, Clancy, Collier, Daniels, DeGeeter, Domenick, C. Evans, D. Evans, Flowers, Gibbs, Harwood, Hollister, Hoops, Hughes, Key, Mason, Miller, Niehaus, Otterman, T. Patton, Perry, Peterson, Raga, Raussen, Reidelbach, Schlichter, Schmidt, Schneider, Setzer, Skindell, G. Smith, J. Stewart, Strahorn, Taylor, Willamowski, Wolpert, Yates 

Senator Spada 

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A BILL

To amend sections 123.01, 317.08, 3734.22, 3734.24 to

1

3734.26, 3737.88, 3737.882, 3745.01, 3746.01,

2

3746.04, 3746.05, 3746.10, 3746.11, 3746.13,

3

3746.14, and 3746.171 and to enact sections

4

5301.80 to 5301.92 of the Revised Code to

5

establish environmental covenants as an interest

6

in real property generally arising under an

7

environmental remediation or mitigation project

8

that imposes activity and use limitations on the

9

property, to require the recording of such

10

covenants, and to establish other requirements

11

regarding environmental covenants.

12

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

Section 1. That sections 123.01, 317.08, 3734.22, 3734.24,	13
3734.25, 3734.26, 3737.88, 3737.882, 3745.01, 3746.01, 3746.04,	14
3746.05, 3746.10, 3746.11, 3746.13, 3746.14, and 3746.171 be	15
amended and sections 5301.80, 5301.81, 5301.82, 5301.83, 5301.84,	16
5301.85, 5301.86, 5301.87, 5301.88, 5301.89, 5301.90, 5301.91, and	17
5301.92 of the Revised Code be enacted to read as follows:	18

Sec. 123.01.  (A) The department of administrative services,	19
in addition to those powers enumerated in Chapters 124. and 125.	20
of the Revised Code and provided elsewhere by law, shall exercise	21
the following powers:	22

(1) To prepare, or contract to be prepared, by licensed	23
engineers or architects, surveys, general and detailed plans,	24
specifications, bills of materials, and estimates of cost for any	25
projects, improvements, or public buildings to be constructed by	26
state agencies that may be authorized by legislative	27
appropriations or any other funds made available therefor,	28
provided that the construction of the projects, improvements, or	29
public buildings is a statutory duty of the department. This	30
section does not require the independent employment of an	31
architect or engineer as provided by section 153.01 of the Revised	32
Code in the cases to which that section applies nor affect or	33
alter the existing powers of the director of transportation.	34

(2) To have general supervision over the construction of any	35
projects, improvements, or public buildings constructed for a	36
state agency and over the inspection of materials previous to	37
their incorporation into those projects, improvements, or	38
buildings;	39

(3) To make contracts for and supervise the construction of	40
any projects and improvements or the construction and repair of	41
buildings under the control of a state agency, except contracts	42
for the repair of buildings under the management and control of	43
the departments of public safety, job and family services, mental	44
health, mental retardation and developmental disabilities,	45
rehabilitation and correction, and youth services, the bureau of	46
workers' compensation, the rehabilitation services commission, and	47
boards of trustees of educational and benevolent institutions.	48
These contracts shall be made and entered into by the directors of	49
public safety, job and family services, mental health, mental	50
retardation and developmental disabilities, rehabilitation and	51
correction, and youth services, the administrator of workers'	52
compensation, the rehabilitation services commission, and the	53
boards of trustees of such institutions, respectively. All such	54
contracts may be in whole or in part on unit price basis of	55
maximum estimated cost, with payment computed and made upon actual	56
quantities or units.	57

(4) To prepare and suggest comprehensive plans for the	58
development of grounds and buildings under the control of a state	59
agency;	60

(5) To acquire, by purchase, gift, devise, lease, or grant,	61
all real estate required by a state agency, in the exercise of	62
which power the department may exercise the power of eminent	63
domain, in the manner provided by sections 163.01 to 163.22 of the	64
Revised Code;	65

(6) To make and provide all plans, specifications, and models	66
for the construction and perfection of all systems of sewerage,	67
drainage, and plumbing for the state in connection with buildings	68
and grounds under the control of a state agency;	69

(7) To erect, supervise, and maintain all public monuments	70
and memorials erected by the state, except where the supervision	71
and maintenance is otherwise provided by law;	72

(8) To procure, by lease, storage accommodations for a state	73
agency;	74

(9) To lease or grant easements or licenses for unproductive	75
and unused lands or other property under the control of a state	76
agency. Such leases, easements, or licenses shall be granted for a	77
period not to exceed fifteen years and shall be executed for the	78
state by the director of administrative services and the governor	79
and shall be approved as to form by the attorney general, provided	80
that leases, easements, or licenses may be granted to any county,	81
township, municipal corporation, port authority, water or sewer	82
district, school district, library district, health district, park	83
district, soil and water conservation district, conservancy	84
district, or other political subdivision or taxing district, or	85
any agency of the United States government, for the exclusive use	86
of that agency, political subdivision, or taxing district, without	87
any right of sublease or assignment, for a period not to exceed	88
fifteen years, and provided that the director shall grant leases,	89
easements, or licenses of university land for periods not to	90
exceed twenty-five years for purposes approved by the respective	91
university's board of trustees wherein the uses are compatible	92
with the uses and needs of the university and may grant leases of	93
university land for periods not to exceed forty years for purposes	94
approved by the respective university's board of trustees pursuant	95
to section 123.77 of the Revised Code.	96

(10) To lease office space in buildings for the use of a	97
state agency;	98

(11) To have general supervision and care of the storerooms,	99
offices, and buildings leased for the use of a state agency;	100

(12) To exercise general custodial care of all real property	101
of the state;	102

(13) To assign and group together state offices in any city	103
in the state and to establish, in cooperation with the state	104
agencies involved, rules governing space requirements for office	105
or storage use;	106

(14) To lease for a period not to exceed forty years,	107
pursuant to a contract providing for the construction thereof	108
under a lease-purchase plan, buildings, structures, and other	109
improvements for any public purpose, and, in conjunction	110
therewith, to grant leases, easements, or licenses for lands under	111
the control of a state agency for a period not to exceed forty	112
years. The lease-purchase plan shall provide that at the end of	113
the lease period, the buildings, structures, and related	114
improvements, together with the land on which they are situated,	115
shall become the property of the state without cost.	116

(a) Whenever any building, structure, or other improvement is	117
to be so leased by a state agency, the department shall retain	118
either basic plans, specifications, bills of materials, and	119
estimates of cost with sufficient detail to afford bidders all	120
needed information or, alternatively, all of the following plans,	121
details, bills of materials, and specifications:	122

(i) Full and accurate plans suitable for the use of mechanics	123
and other builders in the improvement;	124

(ii) Details to scale and full sized, so drawn and	125
represented as to be easily understood;	126

(iii) Accurate bills showing the exact quantity of different	127
kinds of material necessary to the construction;	128

(iv) Definite and complete specifications of the work to be	129
performed, together with such directions as will enable a	130
competent mechanic or other builder to carry them out and afford	131
bidders all needed information;	132

(v) A full and accurate estimate of each item of expense and	133
of the aggregate cost thereof.	134

(b) The department shall give public notice, in such	135
newspaper, in such form, and with such phraseology as the director	136
of administrative services prescribes, published once each week	137
for four consecutive weeks, of the time when and place where bids	138
will be received for entering into an agreement to lease to a	139
state agency a building, structure, or other improvement. The last	140
publication shall be at least eight days preceding the day for	141
opening the bids. The bids shall contain the terms upon which the	142
builder would propose to lease the building, structure, or other	143
improvement to the state agency. The form of the bid approved by	144
the department shall be used, and a bid is invalid and shall not	145
be considered unless that form is used without change, alteration,	146
or addition. Before submitting bids pursuant to this section, any	147
builder shall comply with Chapter 153. of the Revised Code.	148

(c) On the day and at the place named for receiving bids for	149
entering into lease agreements with a state agency, the director	150
of administrative services shall open the bids and shall publicly	151
proceed immediately to tabulate the bids upon duplicate sheets. No	152
lease agreement shall be entered into until the bureau of workers'	153
compensation has certified that the person to be awarded the lease	154
agreement has complied with Chapter 4123. of the Revised Code,	155
until, if the builder submitting the lowest and best bid is a	156
foreign corporation, the secretary of state has certified that the	157
corporation is authorized to do business in this state, until, if	158
the builder submitting the lowest and best bid is a person	159
nonresident of this state, the person has filed with the secretary	160
of state a power of attorney designating the secretary of state as	161
its agent for the purpose of accepting service of summons in any	162
action brought under Chapter 4123. of the Revised Code, and until	163
the agreement is submitted to the attorney general and the	164
attorney general's approval is certified thereon. Within thirty	165
days after the day on which the bids are received, the department	166
shall investigate the bids received and shall determine that the	167
bureau and the secretary of state have made the certifications	168
required by this section of the builder who has submitted the	169
lowest and best bid. Within ten days of the completion of the	170
investigation of the bids, the department shall award the lease	171
agreement to the builder who has submitted the lowest and best bid	172
and who has been certified by the bureau and secretary of state as	173
required by this section. If bidding for the lease agreement has	174
been conducted upon the basis of basic plans, specifications,	175
bills of materials, and estimates of costs, upon the award to the	176
builder the department, or the builder with the approval of the	177
department, shall appoint an architect or engineer licensed in	178
this state to prepare such further detailed plans, specifications,	179
and bills of materials as are required to construct the building,	180
structure, or improvement. The department shall adopt such rules	181
as are necessary to give effect to this section. The department	182
may reject any bid. Where there is reason to believe there is	183
collusion or combination among bidders, the bids of those	184
concerned therein shall be rejected.	185

(15) To acquire by purchase, gift, devise, or grant and to	186
transfer, lease, or otherwise dispose of all real property	187
required to assist in the development of a conversion facility as	188
defined in section 5709.30 of the Revised Code as that section	189
existed before its repeal by H.B.Amended Substitute House Bill 95	190
of the 125th general assembly;	191

(16) To lease for a period not to exceed forty years,	192
notwithstanding any other division of this section, the	193
state-owned property located at 408-450 East Town Street,	194
Columbus, Ohio, formerly the state school for the deaf, to a	195
developer in accordance with this section. "Developer," as used in	196
this section, has the same meaning as in section 123.77 of the	197
Revised Code.	198

Such a lease shall be for the purpose of development of the	199
land for use by senior citizens by constructing, altering,	200
renovating, repairing, expanding, and improving the site as it	201
existed on June 25, 1982. A developer desiring to lease the land	202
shall prepare for submission to the department a plan for	203
development. Plans shall include provisions for roads, sewers,	204
water lines, waste disposal, water supply, and similar matters to	205
meet the requirements of state and local laws. The plans shall	206
also include provision for protection of the property by insurance	207
or otherwise, and plans for financing the development, and shall	208
set forth details of the developer's financial responsibility.	209

The department may employ, as employees or consultants,	210
persons needed to assist in reviewing the development plans. Those	211
persons may include attorneys, financial experts, engineers, and	212
other necessary experts. The department shall review the	213
development plans and may enter into a lease if it finds all of	214
the following:	215

(a) The best interests of the state will be promoted by	216
entering into a lease with the developer;	217

(b) The development plans are satisfactory;

218

(c) The developer has established the developer's financial	219
responsibility and satisfactory plans for financing the	220
development.	221

The lease shall contain a provision that construction or	222
renovation of the buildings, roads, structures, and other	223
necessary facilities shall begin within one year after the date of	224
the lease and shall proceed according to a schedule agreed to	225
between the department and the developer or the lease will be	226
terminated. The lease shall contain such conditions and	227
stipulations as the director considers necessary to preserve the	228
best interest of the state. Moneys received by the state pursuant	229
to this lease shall be paid into the general revenue fund. The	230
lease shall provide that at the end of the lease period the	231
buildings, structures, and related improvements shall become the	232
property of the state without cost.	233

(17) To lease to any person any tract of land owned by the	234
state and under the control of the department, or any part of such	235
a tract, for the purpose of drilling for or the pooling of oil or	236
gas. Such a lease shall be granted for a period not exceeding	237
forty years, with the full power to contract for, determine the	238
conditions governing, and specify the amount the state shall	239
receive for the purposes specified in the lease, and shall be	240
prepared as in other cases.	241

(18) To manage the use of space owned and controlled by the	242
department, including space in property under the jurisdiction of	243
the Ohio building authority, by doing all of the following:	244

(a) Biennially implementing, by state agency location, a	245
census of agency employees assigned space;	246

(b) Periodically in the discretion of the director of	247
administrative services:	248

(i) Requiring each state agency to categorize the use of	249
space allotted to the agency between office space, common areas,	250
storage space, and other uses, and to report its findings to the	251
department;	252

(ii) Creating and updating a master space utilization plan	253
for all space allotted to state agencies. The plan shall	254
incorporate space utilization metrics.	255

(iii) Conducting a cost-benefit analysis to determine the	256
effectiveness of state-owned buildings;	257

(iv) Assessing the alternatives associated with consolidating	258
the commercial leases for buildings located in Columbus.	259

(c) Commissioning a comprehensive space utilization and	260
capacity study in order to determine the feasibility of	261
consolidating existing commercially leased space used by state	262
agencies into a new state-owned facility.	263

(B) This section and section 125.02 of the Revised Code shall	264
not interfere with any of the following:	265

(1) The power of the adjutant general to purchase military	266
supplies, or with the custody of the adjutant general of property	267
leased, purchased, or constructed by the state and used for	268
military purposes, or with the functions of the adjutant general	269
as director of state armories;	270

(2) The power of the director of transportation in acquiring	271
rights-of-way for the state highway system, or the leasing of	272
lands for division or resident district offices, or the leasing of	273
lands or buildings required in the maintenance operations of the	274
department of transportation, or the purchase of real property for	275
garage sites or division or resident district offices, or in	276
preparing plans and specifications for and constructing such	277
buildings as the director may require in the administration of the	278
department;	279

(3) The power of the director of public safety and the	280
registrar of motor vehicles to purchase or lease real property and	281
buildings to be used solely as locations to which a deputy	282
registrar is assigned pursuant to division (B) of section 4507.011	283
of the Revised Code and from which the deputy registrar is to	284
conduct the deputy registrar's business, the power of the director	285
of public safety to purchase or lease real property and buildings	286
to be used as locations for division or district offices as	287
required in the maintenance of operations of the department of	288
public safety, and the power of the superintendent of the state	289
highway patrol in the purchase or leasing of real property and	290
buildings needed by the patrol, to negotiate the sale of real	291
property owned by the patrol, to rent or lease real property owned	292
or leased by the patrol, and to make or cause to be made repairs	293
to all property owned or under the control of the patrol;	294

(4) The power of the division of liquor control in the	295
leasing or purchasing of retail outlets and warehouse facilities	296
for the use of the division;	297

(5) The power of the director of development to enter into	298
leases of real property, buildings, and office space to be used	299
solely as locations for the state's foreign offices to carry out	300
the purposes of section 122.05 of the Revised Code;	301

(6) The power of the director of environmental protection to	302
enter into environmental covenants, to grant and accept easements,	303
or to sell property pursuant to division (G) of section 3745.01 of	304
the Revised Code.	305

(C) Purchases for, and the custody and repair of, buildings	306
under the management and control of the capitol square review and	307
advisory board, the rehabilitation services commission, the bureau	308
of workers' compensation, or the departments of public safety, job	309
and family services, mental health, mental retardation and	310
developmental disabilities, and rehabilitation and correction, and	311
buildings of educational and benevolent institutions under the	312
management and control of boards of trustees, are not subject to	313
the control and jurisdiction of the department of administrative	314
services.	315

(D) Any instrument by which real property is acquired	316
pursuant to this section shall identify the agency of the state	317
that has the use and benefit of the real property as specified in	318
section 5301.012 of the Revised Code.	319

Sec. 317.08. (A) Except as provided in divisions (C) and (D)	320
of this section, the county recorder shall keep six separate sets	321
of records as follows:	322

(1) A record of deeds, in which shall be recorded all deeds	323
and other instruments of writing for the absolute and	324
unconditional sale or conveyance of lands, tenements, and	325
hereditaments; all notices as provided in sections 5301.47 to	326
5301.56 of the Revised Code; all judgments or decrees in actions	327
brought under section 5303.01 of the Revised Code; all	328
declarations and bylaws, and all amendments to declarations and	329
bylaws, as provided in Chapter 5311. of the Revised Code;	330
affidavits as provided in section 5301.252 of the Revised Code;	331
all certificates as provided in section 5311.17 of the Revised	332
Code; all articles dedicating archaeological preserves accepted by	333
the director of the Ohio historical society under section 149.52	334
of the Revised Code; all articles dedicating nature preserves	335
accepted by the director of natural resources under section	336
1517.05 of the Revised Code; all agreements for the registration	337
of lands as archaeological or historic landmarks under section	338
149.51 or 149.55 of the Revised Code; all conveyances of	339
conservation easements and agricultural easements under section	340
5301.68 of the Revised Code; all instruments extinguishing	341
agricultural easements under section 901.21 or 5301.691 of the	342
Revised Code or pursuant to terms of such an easement granted to a	343
charitable organization under section 5301.68 of the Revised Code;	344
all instruments or orders described in division (B)(1)(c)(ii) of	345
section 5301.56 of the Revised Code; all no further action letters	346
issued under section 122.654 or 3746.11 of the Revised Code; all	347
covenants not to sue issued under section 3746.12 of the Revised	348
Code, including all covenants not to sue issued pursuant to	349
section 122.654 of the Revised Code; any restrictions on the use	350
of property contained in a no further action letter issued under	351
section 122.654 of the Revised Code, any restrictions on the use	352
of property identified pursuant to division (C)(3)(a) of section	353
3746.10 of the Revised Code, and any restrictions on the use of	354
property contained in a deed or other instrument as provided in	355
division (E) or (F) of section 3737.882 of the Revised Code; any	356
easement executed or granted under section 3734.22, 3734.24,	357
3734.25, or 3734.26 of the Revised Code; any environmental	358
covenant entered into in accordance with sections 5301.80 to	359
5301.92 of the Revised Code; all memoranda of trust, as described	360
in division (A) of section 5301.255 of the Revised Code, that	361
describe specific real property; and all agreements entered into	362
under division (A) of section 1521.26 of the Revised Code;	363

(2) A record of mortgages, in which shall be recorded all of	364
the following:	365

(a) All mortgages, including amendments, supplements,	366
modifications, and extensions of mortgages, or other instruments	367
of writing by which lands, tenements, or hereditaments are or may	368
be mortgaged or otherwise conditionally sold, conveyed, affected,	369
or encumbered;	370

(b) All executory installment contracts for the sale of land	371
executed after September 29, 1961, that by their terms are not	372
required to be fully performed by one or more of the parties to	373
them within one year of the date of the contracts;	374

(c) All options to purchase real estate, including	375
supplements, modifications, and amendments of the options, but no	376
option of that nature shall be recorded if it does not state a	377
specific day and year of expiration of its validity;	378

(d) Any tax certificate sold under section 5721.33 of the	379
Revised Code, or memorandum of it, that is presented for filing of	380
record.	381

(3) A record of powers of attorney, including all memoranda	382
of trust, as described in division (A) of section 5301.255 of the	383
Revised Code, that do not describe specific real property;	384

(4) A record of plats, in which shall be recorded all plats	385
and maps of town lots, of the subdivision of town lots, and of	386
other divisions or surveys of lands, any center line survey of a	387
highway located within the county, the plat of which shall be	388
furnished by the director of transportation or county engineer,	389
and all drawings and amendments to drawings, as provided in	390
Chapter 5311. of the Revised Code;	391

(5) A record of leases, in which shall be recorded all	392
leases, memoranda of leases, and supplements, modifications, and	393
amendments of leases and memoranda of leases;	394

(6) A record of declarations executed pursuant to section	395
2133.02 of the Revised Code and durable powers of attorney for	396
health care executed pursuant to section 1337.12 of the Revised	397
Code.	398

(B) All instruments or memoranda of instruments entitled to	399
record shall be recorded in the proper record in the order in	400
which they are presented for record. The recorder may index, keep,	401
and record in one volume unemployment compensation liens, internal	402
revenue tax liens and other liens in favor of the United States as	403
described in division (A) of section 317.09 of the Revised Code,	404
personal tax liens, mechanic's liens, agricultural product liens,	405
notices of liens, certificates of satisfaction or partial release	406
of estate tax liens, discharges of recognizances, excise and	407
franchise tax liens on corporations, broker's liens, and liens	408
provided for in sections 1513.33, 1513.37, 3752.13, 5111.021, and	409
5311.18 of the Revised Code.	410

The recording of an option to purchase real estate, including	411
any supplement, modification, and amendment of the option, under	412
this section shall serve as notice to any purchaser of an interest	413
in the real estate covered by the option only during the period of	414
the validity of the option as stated in the option.	415

(C) In lieu of keeping the six separate sets of records	416
required in divisions (A)(1) to (6) of this section and the	417
records required in division (D) of this section, a county	418
recorder may record all the instruments required to be recorded by	419
this section in two separate sets of record books. One set shall	420
be called the "official records" and shall contain the instruments	421
listed in divisions (A)(1), (2), (3), (5), and (6) and (D) of this	422
section. The second set of records shall contain the instruments	423
listed in division (A)(4) of this section.	424

(D) Except as provided in division (C) of this section, the	425
county recorder shall keep a separate set of records containing	426
all corrupt activity lien notices filed with the recorder pursuant	427
to section 2923.36 of the Revised Code and a separate set of	428
records containing all medicaid fraud lien notices filed with the	429
recorder pursuant to section 2933.75 of the Revised Code.	430

Sec. 3734.22.  Before beginning to clean up any facility	431
under section 3734.21 of the Revised Code, the director of	432
environmental protection shall endeavor to enter into an agreement	433
with the owner of the land on which the facility is located, or	434
with the owner of the facility, specifying the measures to be	435
performed and authorizing the director, employees of the agency,	436
or contractors retained by the director to enter upon the land and	437
perform the specified measures.	438

Each agreement shall contain provisions for the reimbursement	439
of the state for the costs of the cleanup.	440

All reimbursements and payments shall be credited to the	441
hazardous waste clean-up fund created in section 3734.28 of the	442
Revised Code.	443

The agreement may require the owner to execute an easement	444
whereby the director, an authorized employee of the agency, or a	445
contractor employed by the agency in accordance with the bidding	446
procedure established in division (C) of section 3734.23 of the	447
Revised Code may enter upon the facility to sample, repair, or	448
reconstruct air and water quality monitoring equipment constructed	449
under the agreement. Such easements shall be for a specified	450
period of years and may be extinguished by agreement between the	451
owner and the director. When necessary to protect the public	452
health or safety, the agreement may require the owner to execute a	453
restrictive covenant to run with the land that specifies the uses	454
that may be made of the facility after work performed is	455
completed, specifies the period for which the restrictive covenant	456
applies, and provides terms whereby modifications to the	457
restrictive covenant, or other land uses, may be initiated or	458
proposed to the director by the owner or by subsequent owners of	459
the facility. All easements or covenants required under this	460
section shall be recorded in the office of the county recorder of	461
the county in which the facility is located, and the recording	462
fees shall be paid by the directorenter into an environmental	463
covenant with the director in accordance with sections 5301.80 to	464
5301.92 of the Revised Code.	465

Upon a breach of the reimbursement provisions of the	466
agreement by the owner of the land or facility, or upon	467
notification to the director by the owner that the owner is unable	468
to perform the duties under the reimbursement provisions of the	469
agreement, the director shall record the unreimbursed portion of	470
the costs of cleanup at the office of the county recorder of the	471
county in which the facility is located. The costs so recorded	472
constitute a lien against the property on which the facility is	473
located until discharged. Upon written request of the director,	474
the attorney general shall institute a civil action to recover the	475
unreimbursed portion of the costs of cleanup. Any moneys so	476
recovered shall be credited to the hazardous waste clean-up fund.	477

Sec. 3734.24.  After the cleanup of a solid waste facility or	478
a hazardous waste facility acquired and cleaned up under section	479
3734.23 of the Revised Code, the director of environmental	480
protection may, if the facility is suitable for use by any other	481
state department, agency, office, or institution and if the	482
proposed use of the facility is compatible with the condition of	483
the facility as cleaned up, transfer the facility to that state	484
department, agency, office, or institution. The director shall	485
continue to provide for the post-closure care, maintenance, and	486
monitoring of any such cleaned-up facility as required by section	487
3734.23 of the Revised Code.	488

If the director determines that any facility so cleaned up is	489
suitable, because of its condition as cleaned up, for restricted	490
or unrestricted use, hethe director may, with the approval of the	491
attorney general, sell the facility if the sale is advantageous to	492
the state. Prior to selling the cleaned-up facility, the director	493
shall, when necessary to protect public health or safety, execute	494
a restrictive covenant to run with the land that specifies the	495
uses that may be made of the facility, specifies the period for	496
which the restrictive covenant applies, and provides terms whereby	497
modifications to the restrictive covenant, or other land uses, may	498
be initiated or proposed to the director by subsequent owners of	499
the facilityenter into an environmental covenant in accordance	500
with sections 5301.80 to 5301.92 of the Revised Code. When selling	501
any such cleaned-up facility, the director shall retain the right	502
to enter upon the facility, in person or by hisan authorized	503
agent, to provide for the post-closure care, maintenance, and	504
monitoring of the facility. The director shall provide for the	505
post-closure care, maintenance, and monitoring of any such	506
facility sold as required by section 3734.23 of the Revised Code.	507

With the approval of the attorney general, the director may	508
grant easements or leases on any such cleaned-up facility if he	509
the director determines that the use of the facility under the	510
easement or lease is compatible with its condition as cleaned up.	511

Any moneys derived from the sale of such cleaned-up	512
facilities or from payments from easements or leases shall be	513
credited to the hazardous waste clean-up fund created in section	514
3734.28 of the Revised Code.	515

Sec. 3734.25.  (A) The director of environmental protection	516
may make grants of moneys from the hazardous waste clean-up fund	517
created in section 3734.28 of the Revised Code for payment by the	518
state of up to two-thirds of the reasonable and necessary expenses	519
incurred by a municipal corporation, county, or township for the	520
proper closure of or abatement of air or water pollution or soil	521
contamination from a solid waste facility in which significant	522
quantities of hazardous waste were disposed of and that the	523
political subdivision owns and once operated.	524

(B) A municipal corporation, county, or township shall submit	525
an application for a grant on forms provided by the director,	526
together with detail plans and specifications indicating the	527
measures to be performed, an itemized estimate of the project's	528
cost, a description of the project's benefits, and such other	529
information as the director prescribes. The plan for closure or	530
abatement of air or water pollution or soil contamination may be	531
prepared in consultation with the director or the board of health	532
of the city or general health district in which the facility is	533
located. The director may award the applicant a grant only if he	534
the director finds that the proposed measures will provide for the	535
proper closure of the facility and will abate or prevent air or	536
water pollution or soil contamination, including, but not limited	537
to, those measures necessary or desirable to:	538

(1) In the case of a facility at which land burial of	539
hazardous waste occurred, establish and maintain a suitable cover	540
of soil and vegetation over the cells in which waste is buried in	541
order to minimize erosion, the infiltration of surface water into	542
the cells, the production of leachate, and the accumulation or	543
runoff of contaminated surface waters and to prevent air emissions	544
of hazardous waste from the facility;	545

(2) Collect and treat contaminated surface water runoff from	546
the facility;	547

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

548

(4) Install test wells and other equipment or facilities to	549
monitor the quality of surface waters receiving runoff from the	550
facility or to monitor air emissions of hazardous waste from the	551
facility;	552

(5) Regularly monitor and analyze surface water runoff from	553
the facility, the quality of waters receiving the runoff, and	554
groundwaterground water quality in the vicinity of the facility,	555
and regularly monitor leachate collection and treatment systems	556
installed under the grant and analyze samples from them;	557

(6) Remove and dispose of hazardous waste from the facility	558
at a suitable hazardous waste disposal facility where necessary to	559
protect public health or safety or to prevent or abate air or	560
water pollution or soil contamination.	561

(C) The director shall determine the amount of the grant	562
based upon histhe director's determination of what constitutes	563
reasonable and necessary expenses for the proper closure of the	564
facility or for the prevention or elimination of air or water	565
pollution or soil contamination from the facility. In making a	566
grant, the director shall enter into a contract with the municipal	567
corporation, county, or township that owns the facility to ensure	568
that the moneys granted are used for the purposes of this section	569
and that measures performed are properly done. The final payment	570
under a grant may not be made until the director inspects and	571
approves the completed cleanup.	572

The contract shall require the municipal corporation, county,	573
or township to execute an easement whereby the director, an	574
authorized employee of the agency, or a contractor employed by the	575
director may enter upon the facility to sample, repair, or	576
reconstruct air and water quality monitoring equipment constructed	577
under the contract. Such easements shall be for a specified period	578
of years and may be extinguished by agreement between the	579
political subdivision and the director.	580

When necessary to protect public health or safety, the	581
contract may require the municipal corporation, county, or	582
township to execute a restrictive covenant to run with the land	583
that specifies the uses that may be made of the facility after	584
work performed under the contract is completed, specifies the	585
period for which the restrictive covenant applies, and provides	586
terms whereby modifications to the restrictive covenant, or other	587
land uses, may be initiated or proposed to the director by the	588
political subdivision or by subsequent owners of the facility. Any	589
easements or covenants required under this section shall be	590
recorded in the office of the county recorder of the county in	591
which the facility is located, and the recording fees shall be	592
paid by the recipient of the grantenter into an environmental	593
covenant with the director in accordance with sections 5301.80 to	594
5301.92 of the Revised Code.	595

Sec. 3734.26.  (A) The director of environmental protection	596
may make grants of moneys from the hazardous waste clean-up fund	597
created in section 3734.28 of the Revised Code to the owner, other	598
than a political subdivision, of a solid waste facility in which	599
significant quantities of hazardous waste were disposed of or a	600
hazardous waste facility for up to fifty per cent of the cost of	601
the reasonable and necessary expenses incurred for the proper	602
closure of or abatement or prevention of air or water pollution or	603
soil contamination from the facility and for developing the land	604
on which it was located for use in industry, commerce,	605
distribution, or research.	606

The director shall not make grants to the owner of any land	607
on which such facilities are located if the owner at any time	608
owned or operated the facility located thereon for profit or in	609
conjunction with any profit-making enterprise located in this	610
state or to any person who at any time owned or operated a	611
facility concerning which the director has taken action under	612
section 3734.20, 3734.22, or 3734.23 of the Revised Code. However,	613
the director may make grants under this section to any subsequent	614
owner of the land, provided that the person has no affiliation	615
with any person who owned or operated the facility located on the	616
land for profit or in conjunction with any profit-making	617
enterprise located in this state or who owned or operated a	618
facility concerning which the director has taken action under	619
section 3734.20, 3734.22, or 3734.23 of the Revised Code.	620

(B) The owner shall submit an application for a grant on	621
forms furnished by the director, together with detail plans and	622
specifications for the measures to be performed to close the	623
facility properly or to abate or prevent air or water pollution or	624
soil contamination from the facility, an itemized estimate of the	625
project's cost, a description of the project's estimated benefits,	626
and such other information as the director prescribes. The plan	627
may be prepared in consultation with the director or with the	628
board of health of the city or general health district in which	629
the facility is located. The director may award the applicant a	630
grant only if he findsafter finding that the proposed measures	631
will provide for the proper closure of the facility or will abate	632
or prevent air or water pollution or soil contamination from the	633
facility, including, but not limited to, those measures necessary	634
or desirable to:	635

(1) In the case of a facility for the land burial of	636
hazardous waste, establish and maintain a suitable cover of soil	637
and vegetation over the cells in which waste is buried in order to	638
minimize erosion, the infiltration of surface water into the	639
cells, the production of leachate, and the accumulation or runoff	640
of contaminated surface water and to prevent air emissions of	641
hazardous waste from the facility;	642

(2) Collect and treat contaminated surface water runoff from	643
the facility;	644

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

645

(4) Install test wells and other equipment or facilities to	646
monitor the quality of surface waters receiving runoff from the	647
facility or to monitor air emissions of hazardous waste from the	648
facility;	649

(5) Regularly monitor and analyze surface water runoff from	650
the facility, the quality of waters receiving the runoff, and	651
groundwaterground water quality in the vicinity of the facility,	652
and regularly monitor leachate collection and treatment systems	653
installed under the grant and analyze samples from them;	654

(6) Remove and dispose of hazardous waste from the facility	655
at a suitable hazardous waste disposal facility where necessary to	656
protect public health or safety or to abate or prevent air or	657
water pollution or soil contamination.	658

(C) The director shall determine the amount of the grant	659
based upon histhe director's determination of what constitutes	660
reasonable and necessary expenses for the proper closure of the	661
facility or for the abatement or prevention of air or water	662
pollution or soil contamination from the facility. The amount of	663
the grant shall not exceed one-half of the total, as determined by	664
the director, of what constitutes reasonable and necessary	665
expenses actually incurred for the proper closure of or abatement	666
or prevention of air or water pollution or soil contamination from	667
the facility.	668

In making a grant, the director shall enter into a contract	669
for funding with each applicant awarded a grant to ensure that the	670
moneys granted are used for the purpose of this section and that	671
the measures performed are properly performed. The final payment	672
under a grant may not be made until the director inspects and	673
approves the completed cleanup and the plans for developing the	674
land for use in industry, commerce, distribution, or research.	675

Each contract for funding shall contain provisions for the	676
reimbursement of the state of a portion of the costs of the	677
cleanup that is commensurate with the increase in the market value	678
of the property attributable to the cleanup thereon, as determined	679
by appraisals made before and after cleanup in the manner stated	680
in the contract. For reimbursement of that portion, the contract	681
may include provisions for:	682

(1) Payment to the state of the share of the income derived	683
from the productive use of the land;	684

(2) Imposition of a lien in the amount of the increase in	685
fair market value payable upon the transfer or conveyance to a new	686
owner;	687

(3) Waiver of all reimbursement if the determination	688
discloses an increase in value that is insubstantial in comparison	689
to the benefits to the public from the abatement of threats to	690
public health or safety or from the abatement or prevention of	691
pollution or contamination, considering the applicant's share of	692
the cleanup cost.	693

All reimbursements and payments shall be credited to the	694
hazardous waste clean-up fund created in section 3734.28 of the	695
Revised Code.	696

(D) The contract shall require the owner to execute an	697
easement whereby the director, an authorized employee of the	698
agency, or a contractor employed by the agency may enter upon the	699
facility to sample, repair, or reconstruct air and water quality	700
monitoring equipment constructed under the contract. Such	701
easements shall be for a specified period of years and may be	702
extinguished by agreement between the owner and the director. When	703
necessary to protect the public health or safety, the contract may	704
require the owner to execute a restrictive covenant to run with	705
the land that specifies the uses that may be made of the facility	706
after work performed under the grant is completed, specifies the	707
period for which the restrictive covenant applies, and provides	708
terms whereby modifications to the restrictive covenant, or other	709
land uses, may be initiated or proposed to the director by the	710
owner or by subsequent owners of the facility. All easements or	711
covenants required under this section shall be recorded in the	712
office of the county recorder of the county in which the facility	713
is located, and the recording fees shall be paid by the owner	714
enter into an environmental covenant with the director in	715
accordance with sections 5301.80 to 5301.92 of the Revised Code.	716

(E) As used in this section, "commerce" includes, but is not	717
limited to, agriculture, forestry, and housing.	718

Sec. 3737.88.  (A)(1) The fire marshal shall have	719
responsibility for implementation of the underground storage tank	720
program and corrective action program for releases from	721
underground petroleum storage tanks established by the "Resource	722
Conservation and Recovery Act of 1976," 90 Stat. 2795, 42 U.S.C.A.	723
6901, as amended. To implement the program, the fire marshal may	724
adopt, amend, and rescind such rules, conduct such inspections,	725
require annual registration of underground storage tanks, issue	726
such citations and orders to enforce those rules, enter into	727
environmental covenants in accordance with sections 5301.80 to	728
5301.92 of the Revised Code, and perform such other duties, as are	729
consistent with those programs. The fire marshal, by rule, may	730
delegate the authority to conduct inspections of underground	731
storage tanks to certified fire safety inspectors.	732

(2) In the place of any rules regarding release containment	733
and release detection for underground storage tanks adopted under	734
division (A)(1) of this section, the fire marshal, by rule, shall	735
designate areas as being sensitive for the protection of human	736
health and the environment and adopt alternative rules regarding	737
release containment and release detection methods for new and	738
upgraded undergoundunderground storage tank systems located in	739
those areas. In designating such areas, the fire marshal shall	740
take into consideration such factors as soil conditions,	741
hydrogeology, water use, and the location of public and private	742
water supplies. Not later than July 11, 1990, the fire marshal	743
shall file the rules required under this division with the	744
secretary of state, director of the legislative service	745
commission, and joint committee on agency rule review in	746
accordance with divisions (B) and (H) of section 119.03 of the	747
Revised Code.	748

(B) Before adopting any rule under this section or section	749
3737.881 or 3737.882 of the Revised Code, the fire marshal shall	750
file written notice of histhe proposed rule with the chairman	751
chairperson of the state fire commission, and, within sixty days	752
after notice is filed, the commission may file responses to or	753
comments on and may recommend alternative or supplementary rules	754
to the fire marshal. At the end of the sixty-day period or upon	755
the filing of responses, comments, or recommendations by the	756
commission, the fire marshal may adopt the rule filed with the	757
commission or any alternative or supplementary rule recommended by	758
the commission.	759

(C) The fire commission may recommend courses of action to be	760
taken by the fire marshal in carrying out histhe fire marshal's	761
duties under this section. The commission shall file its	762
recommendations in the office of the fire marshal, and, within	763
sixty days after the recommendations are filed, the fire marshal	764
shall file with the chairmanchairperson of the commission his	765
comments on, and proposed action in response to, the	766
recommendations.	767

(D) For the purpose of sections 3737.87 to 3737.89 of the	768
Revised Code, the fire marshal shall adopt, and may amend and	769
rescind, rules identifying or listing hazardous substances. The	770
rules shall be consistent with and equivalent in scope, coverage,	771
and content to regulations identifying or listing hazardous	772
substances adopted under the "Comprehensive Environmental	773
Response, Compensation, and Liability Act of 1980," 94 Stat. 2779,	774
42 U.S.C.A. 9602, as amended, except that the fire marshal shall	775
not identify or list as a hazardous substance any hazardous waste	776
identified or listed in rules adopted under division (A) of	777
section 3734.12 of the Revised Code.	778

(E) Notwithstanding any provision of the laws of this state	779
to the contrary, the fire marshal has exclusive jurisdiction to	780
regulate the storage, treatment, and disposal of petroleum	781
contaminated soil generated from corrective actions undertaken in	782
response to releases of petroleum. The fire marshal may adopt,	783
amend, or rescind such rules as hethe fire marshal considers to	784
be necessary or appropriate to regulate the storage, treatment, or	785
disposal of petroleum contaminated soil so generated.	786

(F) The fire marshal shall adopt, amend, and rescind rules	787
under sections 3737.88 to 3737.882 of the Revised Code in	788
accordance with Chapter 119. of the Revised Code.	789

Sec. 3737.882.  (A) If, after an examination or inspection,	790
the fire marshal or an assistant fire marshal finds that a release	791
of petroleum is suspected, the fire marshal shall take such action	792
as the fire marshal considers necessary to ensure that a suspected	793
release is confirmed or disproved and, if the occurrence of a	794
release is confirmed, to correct the release. These actions may	795
include one or more of the following:	796

(1) Issuance of a citation and order requiring the	797
responsible person to undertake, in a manner consistent with the	798
requirements of section 9003 of the "Resource Conservation and	799
Recovery Act of 1976," 98 Stat. 3279, 42 U.S.C.A. 6991b, as	800
amended, applicable regulations adopted thereunder, and rules	801
adopted under division (B) of this section, such actions as are	802
necessary to protect human health and the environment, including,	803
without limitation, the investigation of a suspected release.;	804

(2) Requesting the attorney general to bring a civil action	805
for appropriate relief, including a temporary restraining order or	806
preliminary or permanent injunction, in the court of common pleas	807
of the county in which a suspected release is located or in which	808
the release occurred, to obtain the corrective action necessary to	809
protect human health and the environment. In granting any such	810
relief, the court shall ensure that the terms of the temporary	811
restraining order or injunction are sufficient to provide	812
comprehensive corrective action to protect human health and the	813
environment.	814

(3) Entry onto premises and undertaking corrective action	815
with respect to a release of petroleum if, in the fire marshal's	816
judgment, such action is necessary to protect human health and the	817
environment. Any corrective action undertaken by the fire marshal	818
or assistant fire marshal under division (A)(3) of this section	819
shall be consistent with the requirements of sections 9003 and	820
9005 of the "Resource Conservation and Recovery Act of 1976," 98	821
Stat. 3279, 42 U.S.C.A. 6991b, and 98 Stat. 3284, 42 U.S.C.A.	822
6991e, respectively, as amended, applicable regulations adopted	823
thereunder, and rules adopted under division (B) of this section.	824

(B) The fire marshal shall adopt, and may amend and rescind,	825
such rules as the fire marshal considers necessary to establish	826
standards for corrective actions for suspected and confirmed	827
releases of petroleum and standards for the recovery of costs	828
incurred for undertaking corrective or enforcement actions with	829
respect to such releases. The rules also shall include	830
requirements for financial responsibility for the cost of	831
corrective actions for and compensation of bodily injury and	832
property damage incurred by third parties that are caused by	833
releases of petroleum. Rules regarding financial responsibility	834
shall, without limitation, require responsible persons to provide	835
evidence that the parties guaranteeing payment of the deductible	836
amount established under division (E) or (F) of section 3737.91 of	837
the Revised Code are, at a minimum, secondarily liable for all	838
corrective action and third-party liability costs incurred within	839
the scope of the deductible amount. The rules shall be consistent	840
with sections 9003 and 9005 of the "Resource Conservation and	841
Recovery Act of 1976," 98 Stat. 3279, 42 U.S.C.A. 6991b, and 98	842
Stat. 3284, 42 U.S.C.A. 6991e, respectively, as amended, and	843
applicable regulations adopted thereunder.	844

(C)(1) No person shall violate or fail to comply with a rule	845
adopted under division (A) of section 3737.88 of the Revised Code	846
or division (B) of this section, and no person shall violate or	847
fail to comply with the terms of any order issued under division	848
(A) of section 3737.88 of the Revised Code or division (A)(1) of	849
this section.	850

(2) Whoever violates division (C)(1) of this section or	851
division (F) of section 3737.881 of the Revised Code shall pay a	852
civil penalty of not more than ten thousand dollars for each day	853
that the violation continues. The fire marshal may, by order,	854
assess a civil penalty under this division, or the fire marshal	855
may request the attorney general to bring a civil action for	856
imposition of the civil penalty in the court of common pleas of	857
the county in which the violation occurred. If the fire marshal	858
determines that a responsible person is in violation of division	859
(C)(1) of this section or division (F) of section 3737.881 of the	860
Revised Code, the fire marshal may request the attorney general to	861
bring a civil action for appropriate relief, including a temporary	862
restraining order or preliminary or permanent injunction, in the	863
court of common pleas of the county in which the underground	864
storage tank or, in the case of a violation of division (F)(3) of	865
section 3737.881 of the Revised Code, the training program that is	866
the subject of the violation is located. The court shall issue a	867
temporary restraining order or an injunction upon a demonstration	868
that a violation of division (C)(1) of this section or division	869
(F) of section 3737.881 of the Revised Code has occurred or is	870
occurring.	871

Any action brought by the attorney general under this	872
division is a civil action, governed by the Rules of Civil	873
Procedure and other rules of practice and procedure applicable to	874
civil actions.	875

(D) Orders issued under division (A) of section 3737.88 of	876
the Revised Code and divisions (A)(1) and (C) of this section, and	877
appeals thereof, are subject to and governed by Chapter 3745. of	878
the Revised Code. Such orders shall be issued without the	879
necessity for issuance of a proposed action under that chapter.	880
For purposes of appeals of any such orders, the term "director" as	881
used in Chapter 3745. of the Revised Code includes the fire	882
marshal and an assistant fire marshal.	883

(E) Any restrictions on the use of real property for the	884
purpose of achievingthe achievement by an owner or operator of	885
applicable standards pursuant to rules adopted under division (B)	886
of this section shall be contained in a deed or in another	887
instrument that is signed and acknowledged by the property owner	888
in the same manner as a deed or an environmental covenant that is	889
entered into in accordance with sections 5301.80 to 5301.92 of the	890
Revised Code. The deed or, other instrument containing the	891
restrictions, or environmental covenant shall be filed and	892
recorded in the office of the county recorder of the county in	893
which the property is located. Pursuant to Chapter 5309. of the	894
Revised Code, suchif the use restrictions in connectionor	895
environmental covenant are connected with registered land, as	896
defined in section 5309.01 of the Revised Code, the restrictions	897
or environmental covenant shall be entered as a memorial on the	898
page of the register where the title of the owner is registered.	899

(F) Any restrictions on the use of real property for the	900
purpose of the achievement by a person that is not a responsible	901
person, or by a person undertaking a voluntary action of	902
applicable standards pursuant to rules adopted under division (B)	903
of this section shall be contained in an environmental covenant	904
that is entered into in accordance with sections 5301.80 to	905
5301.92 of the Revised Code. The environmental covenant shall be	906
filed and recorded in the office of the county recorder of the	907
county in which the property is located. Pursuant to Chapter 5309.	908
of the Revised Code, if the environmental covenant is connected	909
with registered land, as defined in section 5309.01 of the Revised	910
Code, the environmental covenant shall be entered as a memorial on	911
the page of the register where the title of the owner is	912
registered.	913

Sec. 3745.01.  There is hereby created the environmental	914
protection agency, headed by the director of environmental	915
protection. The agency, under the supervision of the director,	916
shall administer the laws pertaining to chemical emergency	917
planning, community right-to-know, and toxic chemical release	918
reporting; the cessation of chemical handling operations; the	919
prevention, control, and abatement of air and water pollution;	920
public water supply; comprehensive water resource management	921
planning; and the disposal and treatment of solid wastes,	922
infectious wastes, construction and demolition debris, hazardous	923
waste, sewage, industrial waste, and other wastes. The director	924
may do all of the following:	925

(A) Provide such methods of administration, appoint such	926
personnel, make such reports, and take such other action as may be	927
necessary to comply with the requirements of the federal laws and	928
regulations pertaining to chemical emergency planning, community	929
right-to-know, and toxic chemical release reporting; air and water	930
pollution control; public water supply; water resource planning;	931
and waste disposal and treatment;	932

(B) Procure by contract the temporary or intermittent	933
services of experts or consultants, or organizations thereof, when	934
those services are to be performed on a part-time or	935
fee-for-service basis and do not involve the performance of	936
administrative duties;	937

(C) Advise, consult, cooperate, and enter into contracts or	938
agreements with any other agencies of the state, the federal	939
government, other states, and interstate agencies and with	940
affected groups, political subdivisions, and industries in	941
furtherance of the purposes of this chapter and Chapters 3704.,	942
3714., 3734., 3751., 3752., 6109., and 6111. of the Revised Code;	943

(D) Establish advisory boards in accordance with section	944
121.13 of the Revised Code;	945

(E) Accept on behalf of the state any grant, gift, or	946
contribution made for toxic chemical release reporting, air or	947
water pollution control, public water supply, water resource	948
planning, waste disposal or treatment, or related purposes, and	949
expend it for those purposes;	950

(F) Make an annual report to the governor and the general	951
assembly on activities and expenditures as well as recommendations	952
for such additional legislation as the director considers	953
appropriate to carry out the director's duties or accomplish the	954
purposes of this section;	955

(G) Enter into environmental covenants in accordance with	956
sections 5301.80 to 5301.92 of the Revised Code, and grant or	957
accept easements or sell real property pursuant to section	958
3734.22, 3734.24, 3734.25, or 3734.26 of the Revised Code, as	959
applicable.	960

The agency shall utilize the laboratory facilities of the	961
department of health and other state institutions and agencies to	962
the maximum extent that the utilization is practicable,	963
economical, and technically satisfactory.	964

The director shall maintain and keep available for public	965
inspection, at the director's principal office, a current register	966
of all applications filed for permits, leases, licenses,	967
variances, certificates, and approval of plans and specifications	968
and of publicly owned treatment works pretreatment programs under	969
the director's jurisdiction, hearings pending, the director's	970
final action thereon, and the dates on which the filings,	971
hearings, and final actions occur. The director shall maintain and	972
keep available for public inspection at the director's principal	973
office all plans, reports, and other documents required to be	974
filed with the emergency response commission under Chapter 3750.	975
of the Revised Code and rules adopted under it, and all reports	976
and other documents required to be filed with the director under	977
Chapter 3751. of the Revised Code and rules adopted under it,	978
subject to the requirements of those chapters and rules adopted	979
under them for the protection of trade secrets and confidential	980
business information from disclosure to persons not authorized	981
under those laws to receive trade secret or confidential business	982
information.	983

Sec. 3746.01.  As used in this chapter:

984

(A) "Activity and use limitations" has the same meaning as in	985
section 5301.80 of the Revised Code.	986

(B) "Affiliated" means under common ownership or control.

987

(B)(C) "Applicable standards," unless the context indicates	988
otherwise, means standards established in or pursuant to sections	989
3746.05, 3746.06, and 3746.07 of the Revised Code, in or pursuant	990
to rules adopted under division (B)(1) or (2) of section 3746.04	991
of the Revised Code, pursuant to rules adopted under division	992
(B)(12)(b) of section 3746.04 of the Revised Code, or alternative	993
standards and terms and conditions set forth in a variance issued	994
under section 3746.09 of the Revised Code, as applicable.	995

(C)(D) "Background level" means the conditions at a property	996
and areas surrounding a property that are unaffected by any	997
current or past activities involving treatment, storage, or	998
disposal of hazardous substances or petroleum. "Background level"	999
includes naturally occurring substances.	1000

(D)(E) "Certified laboratory" means a laboratory certified by	1001
the director of environmental protection pursuant to rules adopted	1002
under division (B)(6) of section 3746.04 of the Revised Code, or	1003
deemed to be certified under division (E) of section 3746.07 of	1004
the Revised Code, to perform analyses in connection with voluntary	1005
actions.	1006

(E)(F) "Certified professional" means a person certified by	1007
the director pursuant to rules adopted under division (B)(5) of	1008
section 3746.04 of the Revised Code, or deemed to be certified	1009
under division (D) of section 3746.07 of the Revised Code, to	1010
issue no further action letters under section 3746.11 of the	1011
Revised Code.	1012

(F)(G) "Covenant not to sue" means a release from liability	1013
that is issued by the director under section 3746.12 of the	1014
Revised Code.	1015

(H) "Environmental covenant" has the same meaning as in	1016
section 5301.80 of the Revised Code.	1017

(I) "Hazardous substance" includes all of the following:

1018

(1) Any substance identified or listed in rules adopted under	1019
division (B)(1)(c) of section 3750.02 of the Revised Code;	1020

(2) Any product registered as a pesticide under section	1021
921.02 of the Revised Code when the product is used in a manner	1022
inconsistent with its required labeling;	1023

(3) Any product formerly registered as a pesticide under that	1024
section for which the registration was suspended or canceled under	1025
section 921.05 of the Revised Code;	1026

(4) Any mixture of a substance described in divisions	1027
(F)(I)(1) to (3) of this section with a radioactive material.	1028

(G)(J) "Owner or operator" includes both of the following:

1029

(1) Any person owning or holding a legal, equitable, or	1030
possessory interest in or having responsibility for the daily	1031
activities on a property;	1032

(2) In the case of property title or control of which was	1033
conveyed due to bankruptcy, foreclosure, tax delinquency,	1034
abandonment, or similar means to this state or a political	1035
subdivision of this state, any person who owned, operated, or	1036
otherwise controlled activities occurring on the property before	1037
the conveyance.	1038

(H)(K) "Person" means any person as defined in section 1.59	1039
of the Revised Code and also includes this state, any political	1040
subdivision of this state, any other body of this state or of a	1041
political subdivision of this state, the board of directors of a	1042
nonprofit corporation governing a special improvement district	1043
created under Chapter 1710. of the Revised Code, and the United	1044
States and any agency or instrumentality thereof.	1045

(I)(L) "Petroleum" means oil or petroleum of any kind and in	1046
any form, including, without limitation, crude oil or any fraction	1047
thereof, petroleum, gasoline, kerosene, fuel oil, oil sludge, oil	1048
refuse, used oil, substances or additives utilized in the refining	1049
or blending of crude petroleum or petroleum stock, natural gas,	1050
natural gas liquids, liquefied natural gas, synthetic gas usable	1051
for fuel, and mixtures of natural gas and synthetic gas.	1052

(J)(M) "Property," except for the purposes of sections	1053
3746.02, 3746.26, and 3746.27 of the Revised Code, means any	1054
parcel of real property, or portion thereof, and any improvements	1055
thereto, the limits of which have been described in writing by the	1056
owner of record or a legally appointed representative of the owner	1057
and that is or has been the subject of a voluntary action under	1058
this chapter and rules adopted under it.	1059

(K)(N) "Radioactive material" means a substance that	1060
spontaneously emits ionizing radiation.	1061

(L)(O) "Related" means the persons are related by	1062
consanguinity or marriage.	1063

(M)(P) "Release" means any spilling, leaking, pumping,	1064
pouring, emitting, emptying, discharging, injecting, escaping,	1065
leaching, migrating, dumping, or disposing of any hazardous	1066
substance or petroleum into the environment, including, without	1067
limitation, the abandonment or discarding of barrels, containers,	1068
or any other closed receptacle containing any hazardous substance,	1069
petroleum, or pollutant or contaminant. "Release" does not include	1070
any of the following:	1071

(1) Any release that results solely in the exposure of	1072
individuals to hazardous substances or petroleum in the workplace	1073
with respect to which those individuals may assert a claim against	1074
their employer and that is regulated under the "Occupational	1075
Health and Safety Act of 1970," 84 Stat. 1590, 29 U.S.C.A. 651, as	1076
amended, and regulations adopted under that act, or under Chapter	1077
4167. of the Revised Code and rules adopted under it;	1078

(2) Emissions from the engine exhaust of a motor vehicle,	1079
rolling stock, aircraft, vessel, or pipeline pumping station	1080
engine;	1081

(3) Any release of a source, byproduct, or special nuclear	1082
material from a nuclear incident, as "source material," "byproduct	1083
material," "special nuclear material," and "nuclear incident" are	1084
defined in the "Atomic Energy Act of 1954," 68 Stat. 919, 42	1085
U.S.C.A. 2011, as amended, if the release is subject to financial	1086
protection requirements under section 170 of that act unless any	1087
such material is mixed with a hazardous substance or petroleum;	1088

(4) Any federally permitted release as defined in section	1089
101(10) of the "Comprehensive Environmental Response,	1090
Compensation, and Liability Act of 1980," 94 Stat. 3300, 42	1091
U.S.C.A. 9601, as amended;	1092

(5) The normal application of a fertilizer material that is	1093
intended to improve the quality or quantity of plant growth.	1094

(N)(Q) "Remedy" or "remedial activities" means actions that	1095
are taken at a property to treat, remove, transport for treatment	1096
or disposal, dispose of, contain, or control hazardous substances	1097
or petroleum, are protective of public health and safety and the	1098
environment, and are consistent with a permanent remedy,	1099
including, without limitation, excavation, treatment, off-site	1100
disposal, the use of engineering or institutional controls or	1101
measuresactivity and use limitations, the issuance and	1102
implementation of a consolidated standards permit under section	1103
3746.15 of the Revised Code, and the entering into and	1104
implementation of an operation and maintenance agreement pursuant	1105
to section 3746.12 of the Revised Code.	1106

(O)(R) "Voluntary action" means a series of measures that may	1107
be undertaken to identify and address potential sources of	1108
contamination of property by hazardous substances or petroleum and	1109
to establish that the property complies with applicable standards.	1110
"Voluntary action" may include, without limitation, a phase I	1111
property assessment conducted in accordance with rules adopted	1112
under division (B)(3) of section 3746.04 of the Revised Code or	1113
division (B) of section 3746.07 of the Revised Code, as	1114
appropriate, a phase II property assessment conducted in	1115
accordance with rules adopted under division (B)(4) of section	1116
3746.04 of the Revised Code or division (C) of section 3746.07 of	1117
the Revised Code, as appropriate, a sampling plan, a remedial	1118
plan, or remedial activities followed by the issuance of a no	1119
further action letter under section 3746.11 of the Revised Code	1120
indicating that the property meets applicable standards upon	1121
demonstration by the person undertaking the measures either that	1122
there is no information indicating that there has been a release	1123
of hazardous substances or petroleum at or upon the property or	1124
that there has been a release of hazardous substances or petroleum	1125
at or upon the property and that applicable standards were not	1126
exceeded or have been or will be achieved in accordance with this	1127
chapter and rules adopted under it.	1128

Sec. 3746.04.  Within one year after September 28, 1994, the	1129
director of environmental protection, in accordance with Chapter	1130
119. of the Revised Code and with the advice of the	1131
multidisciplinary council appointed under section 3746.03 of the	1132
Revised Code, shall adopt, and subsequently may amend, suspend, or	1133
rescind, rules that do both of the following:	1134

(A) Revise the rules adopted under Chapters 3704., 3714.,	1135
3734., 6109., and 6111. of the Revised Code to incorporate the	1136
provisions necessary to conform those rules to the requirements of	1137
this chapter. The amended rules adopted under this division also	1138
shall establish response times for all submittals to the	1139
environmental protection agency required under this chapter or	1140
rules adopted under it.	1141

(B) Establish requirements and procedures that are reasonably	1142
necessary for the implementation and administration of this	1143
chapter, including, without limitation, all of the following:	1144

(1) Appropriate generic numerical clean-up standards for the	1145
treatment or removal of soils, sediments, and water media for	1146
hazardous substances and petroleum. The rules shall establish	1147
separate generic numerical clean-up standards based upon the	1148
intended use of properties after the completion of voluntary	1149
actions, including industrial, commercial, and residential uses	1150
and such other categories of land use as the director considers to	1151
be appropriate. The generic numerical clean-up standards	1152
established for each category of land use shall be the	1153
concentration of each contaminant that may be present on a	1154
property that shall ensure protection of public health and safety	1155
and the environment for the reasonable exposure for that category	1156
of land use. When developing the standards, the director shall	1157
consider such factors as all of the following:	1158

(a) Scientific information, including, without limitation,	1159
toxicological information and realistic assumptions regarding	1160
human and environmental exposure to hazardous substances or	1161
petroleum;	1162

(b) Climatic factors;

1163

(c) Human activity patterns;

1164

(d) Current statistical techniques;

1165

(e) For petroleum at industrial property, alternatives to the	1166
use of total petroleum hydrocarbons.	1167

The generic numerical clean-up standards established under	1168
division (B)(1) of this section shall be consistent with and	1169
equivalent in scope, content, and coverage to any applicable	1170
standard established by federal environmental laws and regulations	1171
adopted under them, including, without limitation, the "Federal	1172
Water Pollution Control Act Amendments of 1972," 86 Stat. 886, 33	1173
U.S.C.A. 1251, as amended; the "Resource Conservation and Recovery	1174
Act of 1976," 90 Stat. 2806, 42 U.S.C.A. 6921, as amended; the	1175
"Toxic Substances Control Act," 90 Stat. 2003 (1976), 15 U.S.C.A.	1176
2601, as amended; the "Comprehensive Environmental Response,	1177
Compensation, and Liability Act of 1980," 94 Stat. 2779, 42	1178
U.S.C.A. 9601, as amended; and the "Safe Drinking Water Act," 88	1179
Stat. 1660 (1974), 42 U.S.C.A. 300f, as amended.	1180

In order for the rules adopted under division (B)(1) of this	1181
section to require that any such federal environmental standard	1182
apply to a property, the property shall meet the requirements of	1183
the particular federal statute or regulation involved in the	1184
manner specified by the statute or regulation.	1185

The generic numerical clean-up standards for petroleum at	1186
commercial or residential property shall be the standards	1187
established in rules adopted under division (B) of section	1188
3737.882 of the Revised Code.	1189

(2)(a) Procedures for performing property-specific risk	1190
assessments that would be performed at a property to demonstrate	1191
that the remedy evaluated in a risk assessment results in	1192
protection of public health and safety and the environment instead	1193
of complying with the generic numerical clean-up standards	1194
established in the rules adopted under division (B)(1) of this	1195
section. The risk assessment procedures shall describe a	1196
methodology to establish, on a property-specific basis, allowable	1197
levels of contamination to remain at a property to ensure	1198
protection of public health and safety and the environment on the	1199
property and off the property when the contamination is emanating	1200
off the property, taking into account all of the following:	1201

(i) The implementation of treatment, storage, or disposal, or	1202
a combination thereof, of hazardous substances or petroleum;	1203

(ii) The existence of institutional controls or activity and	1204
use limitations that eliminate or mitigate exposure to hazardous	1205
substances or petroleum through the restriction of access to	1206
hazardous substances or petroleum, including, without limitation,	1207
deed and water use restrictions;	1208

(iii) The existence of engineering controls that eliminate or	1209
mitigate exposure to hazardous substances or petroleum through	1210
containment of, control of, or restrictions of access to hazardous	1211
substances or petroleum, including, without limitation, fences,	1212
cap systems, cover systems, and landscaping.	1213

(b) The risk assessment procedures and levels of acceptable	1214
risk set forth in the rules adopted under division (B)(2) of this	1215
section shall be based upon all of the following:	1216

(i) Scientific information, including, without limitation,	1217
toxicological information and actual or proposed human and	1218
environmental exposure;	1219

(ii) Locational and climatic factors;

1220

(iii) Surrounding land use and human activities;

1221

(iv) Differing levels of remediation that may be required	1222
when an existing land use is continued compared to when a	1223
different land use follows the remediation.	1224

(c) Any standards established pursuant to rules adopted under	1225
division (B)(2) of this section shall be no more stringent than	1226
standards established under the environmental statutes of this	1227
state and rules adopted under them for the same contaminant in the	1228
same environmental medium that are in effect at the time the risk	1229
assessment is conducted.	1230

(3) Minimum standards for phase I property assessments. The	1231
standards shall specify the information needed to demonstrate that	1232
there is no reason to believe that contamination exists on a	1233
property. The rules adopted under division (B)(3) of this section,	1234
at a minimum, shall require that a phase I property assessment	1235
include all of the following:	1236

(a) A review and analysis of deeds, mortgages, easements of	1237
record, and similar documents relating to the chain of title to	1238
the property that are publicly available or that are known to and	1239
reasonably available to the owner or operator;	1240

(b) A review and analysis of any previous environmental	1241
assessments, property assessments, environmental studies, or	1242
geologic studies of the property and any land within two thousand	1243
feet of the boundaries of the property that are publicly available	1244
or that are known to and reasonably available to the owner or	1245
operator;	1246

(c) A review of current and past environmental compliance	1247
histories of persons who owned or operated the property;	1248

(d) A review of aerial photographs of the property that	1249
indicate prior uses of the property;	1250

(e) Interviews with managers of activities conducted at the	1251
property who have knowledge of environmental conditions at the	1252
property;	1253

(f) Conducting an inspection of the property consisting of a	1254
walkover;	1255

(g) Identifying the current and past uses of the property,	1256
adjoining tracts of land, and the area surrounding the property,	1257
including, without limitation, interviews with persons who reside	1258
or have resided, or who are or were employed, within the area	1259
surrounding the property regarding the current and past uses of	1260
the property and adjacent tracts of land.	1261

The rules adopted under division (B)(3) of this section shall	1262
establish criteria to determine when a phase II property	1263
assessment shall be conducted when a phase I property assessment	1264
reveals facts that establish a reason to believe that hazardous	1265
substances or petroleum have been treated, stored, managed, or	1266
disposed of on the property if the person undertaking the phase I	1267
property assessment wishes to obtain a covenant not to sue under	1268
section 3746.12 of the Revised Code.	1269

(4) Minimum standards for phase II property assessments. The	1270
standards shall specify the information needed to demonstrate that	1271
any contamination present at the property does not exceed	1272
applicable standards or that the remedial activities conducted at	1273
the property have achieved compliance with applicable standards.	1274
The rules adopted under division (B)(4) of this section, at a	1275
minimum, shall require that a phase II property assessment include	1276
all of the following:	1277

(a) A review and analysis of all documentation prepared in	1278
connection with a phase I property assessment conducted within the	1279
one hundred eighty days before the phase II property assessment	1280
begins. The rules adopted under division (B)(4)(a) of this section	1281
shall require that if a period of more than one hundred eighty	1282
days has passed between the time that the phase I assessment of	1283
the property was completed and the phase II assessment begins, the	1284
phase II assessment shall include a reasonable inquiry into the	1285
change in the environmental condition of the property during the	1286
intervening period.	1287

(b) Quality assurance objectives for measurements taken in	1288
connection with a phase II assessment;	1289

(c) Sampling procedures to ensure the representative sampling	1290
of potentially contaminated environmental media;	1291

(d) Quality assurance and quality control requirements for	1292
samples collected in connection with phase II assessments;	1293

(e) Analytical and data assessment procedures;

1294

(f) Data objectives to ensure that samples collected in	1295
connection with phase II assessments are biased toward areas where	1296
information indicates that contamination by hazardous substances	1297
or petroleum is likely to exist.	1298

(5) Standards governing the conduct of certified	1299
professionals, criteria and procedures for the certification of	1300
professionals to issue no further action letters under section	1301
3746.11 of the Revised Code, and criteria for the suspension and	1302
revocation of those certifications. The issuance, denial,	1303
suspension, and revocation of those certifications are subject to	1304
Chapter 3745. of the Revised Code, and the director shall take any	1305
such action regarding a certification as a final action.	1306

The rules adopted under division (B)(5) of this section shall	1307
do all of the following:	1308

(a) Provide for the certification of environmental	1309
professionals to issue no further action letters pertaining to	1310
investigations and remedies in accordance with the criteria and	1311
procedures set forth in the rules. The rules adopted under	1312
division (B)(5)(a) of this section shall do at least all of the	1313
following:	1314

(i) Authorize the director to consider such factors as an	1315
environmental professional's previous performance record regarding	1316
such investigations and remedies and the environmental	1317
professional's environmental compliance history when determining	1318
whether to certify the environmental professional;	1319

(ii) Ensure that an application for certification is reviewed	1320
in a timely manner;	1321

(iii) Require the director to certify any environmental	1322
professional who the director determines complies with those	1323
criteria;	1324

(iv) Require the director to deny certification for any	1325
environmental professional who does not comply with those	1326
criteria.	1327

(b) Establish an annual fee to be paid by environmental	1328
professionals certified pursuant to the rules adopted under	1329
division (B)(5)(a) of this section. The fee shall be established	1330
at an amount calculated to defray the costs to the environmental	1331
protection agency for the required reviews of the qualifications	1332
of environmental professionals for certification and for the	1333
issuance of the certifications.	1334

(c) Develop a schedule for and establish requirements	1335
governing the review by the director of the credentials of	1336
environmental professionals who were deemed to be certified	1337
professionals under division (D) of section 3746.07 of the Revised	1338
Code in order to determine if they comply with the criteria	1339
established in rules adopted under division (B)(5) of this	1340
section. The rules adopted under division (B)(5)(c) of this	1341
section shall do at least all of the following:	1342

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

1343

(ii) Require the director to certify any such environmental	1344
professional who the director determines complies with those	1345
criteria;	1346

(iii) Require any such environmental professional initially	1347
to pay the fee established in the rules adopted under division	1348
(B)(5)(b) of this section at the time that the environmental	1349
professional is so certified by the director;	1350

(iv) Establish a time period within which any such	1351
environmental professional who does not comply with those criteria	1352
may obtain the credentials that are necessary for certification;	1353

(v) Require the director to deny certification for any such	1354
environmental professional who does not comply with those criteria	1355
and who fails to obtain the necessary credentials within the	1356
established time period.	1357

(d) Require that any information submitted to the director	1358
for the purposes of division (B)(5)(a) or (c) of this section	1359
comply with division (A) of section 3746.20 of the Revised Code;	1360

(e) Authorize the director to suspend or revoke the	1361
certification of an environmental professional if the director	1362
finds that the environmental professional's performance has	1363
resulted in the issuance of no further action letters under	1364
section 3746.11 of the Revised Code that are not consistent with	1365
applicable standards or finds that the certified environmental	1366
professional has not substantially complied with section 3746.31	1367
of the Revised Code;	1368

(f) Authorize the director to suspend for a period of not	1369
more than five years or to permanently revoke a certified	1370
environmental professional's certification for any violation of or	1371
failure to comply with an ethical standard established in rules	1372
adopted under division (B)(5) of this section.	1373

(g) Require the director to revoke the certification of an	1374
environmental professional if the director finds that the	1375
environmental professional falsified any information on the	1376
environmental professional's application for certification	1377
regarding the environmental professional's credentials or	1378
qualifications or any other information generated for the purposes	1379
of or use under this chapter or rules adopted under it;	1380

(h) Require the director permanently to revoke the	1381
certification of an environmental professional who has violated or	1382
is violating division (A) of section 3746.18 of the Revised Code;	1383

(i) Preclude the director from revoking the certification of	1384
an environmental professional who only conducts investigations and	1385
remedies at property contaminated solely with petroleum unless the	1386
director first consults with the director of commerce.	1387

(6) Criteria and procedures for the certification of	1388
laboratories to perform analyses under this chapter and rules	1389
adopted under it. The issuance, denial, suspension, and revocation	1390
of those certifications are subject to Chapter 3745. of the	1391
Revised Code, and the director of environmental protection shall	1392
take any such action regarding a certification as a final action.	1393

The rules adopted under division (B)(6) of this section shall	1394
do all of the following:	1395

(a) Provide for the certification to perform analyses of	1396
laboratories in accordance with the criteria and procedures	1397
established in the rules adopted under division (B)(6)(a) of this	1398
section and establish an annual fee to be paid by those	1399
laboratories. The fee shall be established at an amount calculated	1400
to defray the costs to the agency for the review of the	1401
qualifications of those laboratories for certification and for the	1402
issuance of the certifications. The rules adopted under division	1403
(B)(6)(a) of this section may provide for the certification of	1404
those laboratories to perform only particular types or categories	1405
of analyses, specific test parameters or group of test parameters,	1406
or a specific matrix or matrices under this chapter.	1407

(b) Develop a schedule for and establish requirements	1408
governing the review by the director of the operations of	1409
laboratories that were deemed to be certified laboratories under	1410
division (E) of section 3746.07 of the Revised Code in order to	1411
determine if they comply with the criteria established in rules	1412
adopted under division (B)(6) of this section. The rules adopted	1413
under division (B)(6)(b) of this section shall do at least all of	1414
the following:	1415

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

1416

(ii) Require the director to certify any such laboratory that	1417
the director determines complies with those criteria;	1418

(iii) Require any such laboratory initially to pay the fee	1419
established in the rules adopted under division (B)(6)(a) of this	1420
section at the time that the laboratory is so certified by the	1421
director;	1422

(iv) Establish a time period within which any such laboratory	1423
that does not comply with those criteria may make changes in its	1424
operations necessary for the performance of analyses under this	1425
chapter and rules adopted under it in order to be certified by the	1426
director;	1427

(v) Require the director to deny certification for any such	1428
laboratory that does not comply with those criteria and that fails	1429
to make the necessary changes in its operations within the	1430
established time period.	1431

(c) Require that any information submitted to the director	1432
for the purposes of division (B)(6)(a) or (b) of this section	1433
comply with division (A) of section 3746.20 of the Revised Code;	1434

(d) Authorize the director to suspend or revoke the	1435
certification of a laboratory if the director finds that the	1436
laboratory's performance has resulted in the issuance of no	1437
further action letters under section 3746.11 of the Revised Code	1438
that are not consistent with applicable standards;	1439

(e) Authorize the director to suspend or revoke the	1440
certification of a laboratory if the director finds that the	1441
laboratory falsified any information on its application for	1442
certification regarding its credentials or qualifications;	1443

(f) Require the director permanently to revoke the	1444
certification of a laboratory that has violated or is violating	1445
division (A) of section 3746.18 of the Revised Code.	1446

(7) Information to be included in a no further action letter	1447
prepared under section 3746.11 of the Revised Code, including,	1448
without limitation, all of the following:	1449

(a) A summary of the information required to be submitted to	1450
the certified environmental professional preparing the no further	1451
action letter under division (C) of section 3746.10 of the Revised	1452
Code;	1453

(b) Notification that a risk assessment was performed in	1454
accordance with rules adopted under division (B)(2) of this	1455
section if such an assessment was used in lieu of generic	1456
numerical clean-up standards established in rules adopted under	1457
division (B)(1) of this section;	1458

(c) The contaminants addressed at the property, if any, their	1459
source, if known, and their levels prior to remediation;	1460

(d) The identity of any other person who performed work to	1461
support the request for the no further action letter as provided	1462
in division (B)(2) of section 3746.10 of the Revised Code and the	1463
nature and scope of the work performed by that person;	1464

(e) A list of the data, information, records, and documents	1465
relied upon by the certified environmental professional in	1466
preparing the no further action letter.	1467

(8) Methods for determining fees to be paid for the following	1468
services provided by the agency under this chapter and rules	1469
adopted under it:	1470

(a) Site- or property-specific technical assistance in	1471
developing or implementing plans in connection with a voluntary	1472
action;	1473

(b) Reviewing applications for and issuing consolidated	1474
standards permits under section 3746.15 of the Revised Code and	1475
monitoring compliance with those permits;	1476

(c) Negotiating, preparing, and entering into agreements	1477
necessary for the implementation and administration of this	1478
chapter and rules adopted under it;	1479

(d) Reviewing no further action letters, issuing covenants	1480
not to sue, and monitoring compliance with any terms and	1481
conditions of those covenants and with operation and maintenance	1482
agreements entered into pursuant to those covenants, including,	1483
without limitation, conducting audits of properties where	1484
voluntary actions are being or were conducted under this chapter	1485
and rules adopted under it.	1486

The fees established pursuant to the rules adopted under	1487
division (B)(8) of this section shall be at a level sufficient to	1488
defray the direct and indirect costs incurred by the agency for	1489
the administration and enforcement of this chapter and rules	1490
adopted under it other than the provisions regarding the	1491
certification of professionals and laboratories.	1492

(9) Criteria for selecting the no further action letters	1493
issued under section 3746.11 of the Revised Code that will be	1494
audited under section 3746.17 of the Revised Code, and the scope	1495
and procedures for conducting those audits. The rules adopted	1496
under division (B)(9) of this section, at a minimum, shall require	1497
the director to establish priorities for auditing no further	1498
action letters to which any of the following applies:	1499

(a) The letter was prepared by an environmental professional	1500
who was deemed to be a certified professional under division (D)	1501
of section 3746.07 of the Revised Code, but who does not comply	1502
with the criteria established in rules adopted under division	1503
(B)(5) of this section as determined pursuant to rules adopted	1504
under division (B)(5)(d) of this section;.	1505

(b) The letter was submitted fraudulently;.

1506

(c) The letter was prepared by a certified environmental	1507
professional whose certification subsequently was revoked in	1508
accordance with rules adopted under division (B)(5) of this	1509
section, or analyses were performed for the purposes of the no	1510
further action letter by a certified laboratory whose	1511
certification subsequently was revoked in accordance with rules	1512
adopted under division (B)(6) of this section;.	1513

(d) A covenant not to sue that was issued pursuant to the	1514
letter was revoked under this chapter;.	1515

(e) The letter was for a voluntary action that was conducted	1516
pursuant to a risk assessment in accordance with rules adopted	1517
under division (B)(2) of this section;.	1518

(f) The letter was for a voluntary action that included as	1519
remedial activities engineering controls or institutional controls	1520
or activity and use limitations authorized under section 3746.05	1521
of the Revised Code or restrictions on the use of the relevant	1522
property identified pursuant to division (C)(3) of section 3746.10	1523
of the Revised Code.	1524

The rules adopted under division (B)(9) of this section shall	1525
provide for random audits of no further action letters to which	1526
the rules adopted under divisions (B)(9)(a) to (f) of this section	1527
do not apply.	1528

(10) A classification system to characterize ground water	1529
according to its capability to be used for human use and its	1530
impact on the environment and a methodology that shall be used to	1531
determine when ground water that has become contaminated from	1532
sources on a property for which a covenant not to sue is requested	1533
under section 3746.11 of the Revised Code shall be remediated to	1534
the standards established under division (B)(1) or (2) of this	1535
section.	1536

(a) In adopting rules under division (B)(10) of this section	1537
to characterize ground water according to its capability for human	1538
use, the director shall consider all of the following:	1539

(i) The presence of legally enforceable, reliable	1540
restrictions on the use of ground water, including, without	1541
limitation, local rules or ordinances;	1542

(ii) The presence of regional commingled contamination from	1543
multiple sources that diminishes the quality of ground water;	1544

(iii) The natural quality of ground water;

1545

(iv) Regional availability of ground water and reasonable	1546
alternative sources of drinking water;	1547

(v) The productivity of the aquifer;

1548

(vi) The presence of restrictions on the use of ground water	1549
implemented under this chapter and rules adopted under it;	1550

(vii) The existing use of ground water.

1551

(b) In adopting rules under division (B)(10) of this section	1552
to characterize ground water according to its impacts on the	1553
environment, the director shall consider both of the following:	1554

(i) The risks posed to humans, fauna, surface water,	1555
sediments, soil, air, and other resources by the continuing	1556
presence of contaminated ground water;	1557

(ii) The availability and feasibility of technology to remedy	1558
ground water contamination.	1559

(11) Governing the application for and issuance of variances	1560
under section 3746.09 of the Revised Code;	1561

(12)(a) In the case of voluntary actions involving	1562
contaminated ground water, specifying the circumstances under	1563
which the generic numerical clean-up standards established in	1564
rules adopted under division (B)(1) of this section and standards	1565
established through a risk assessment conducted pursuant to rules	1566
adopted under division (B)(2) of this section shall be	1567
inapplicable to the remediation of contaminated ground water and	1568
under which the standards for remediating contaminated ground	1569
water shall be established on a case-by-case basis prior to the	1570
commencement of the voluntary action pursuant to rules adopted	1571
under division (B)(12)(b) of this section;	1572

(b) Criteria and procedures for the case-by-case	1573
establishment of standards for the remediation of contaminated	1574
ground water under circumstances in which the use of the generic	1575
numerical clean-up standards and standards established through a	1576
risk assessment are precluded by the rules adopted under division	1577
(B)(12)(a) of this section. The rules governing the procedures for	1578
the case-by-case development of standards for the remediation of	1579
contaminated ground water shall establish application, public	1580
participation, adjudication, and appeals requirements and	1581
procedures that are equivalent to the requirements and procedures	1582
established in section 3746.09 of the Revised Code and rules	1583
adopted under division (B)(11) of this section, except that the	1584
procedural rules shall not require an applicant to make the	1585
demonstrations set forth in divisions (A)(1) to (3) of section	1586
3746.09 of the Revised Code and shall not require the director to	1587
obtain the advice of the property revitalization board created in	1588
section 3746.08 of the Revised Code regarding any application	1589
submitted pursuant to the rules adopted under division (B)(12)(b)	1590
of this section.	1591

(13) A definition of the evidence that constitutes sufficient	1592
evidence for the purpose of division (A)(5) of section 3746.02 of	1593
the Revised Code.	1594

At least thirty days before filing the proposed rules	1595
required to be adopted under this section with the secretary of	1596
state, director of the legislative service commission, and joint	1597
committee on agency rule review in accordance with divisions (B)	1598
and (H) of section 119.03 of the Revised Code, the director of	1599
environmental protection shall hold at least one public meeting on	1600
the proposed rules in each of the five districts into which the	1601
agency has divided the state for administrative purposes.	1602

Sec. 3746.05.  A remedy or remedial activity conducted under	1603
this chapter may attain applicable standards otherwise established	1604
in this chapter and rules adopted under it through the use of	1605
institutional controls or activity and use limitations that	1606
restrict the access to or use of a property or through the removal	1607
of, treatment of, transportation for treatment or disposal of,	1608
disposal of, or use of engineering controls that contain or	1609
control the release of hazardous substances or petroleum at or	1610
from a property. Any such institutional controls or activity and	1611
use limitations that restrict the use of a property shall ensure	1612
that the property is used only for purposes that comply with the	1613
applicable standards established in this chapter and rules adopted	1614
under it pertaining to the intended use of the property after the	1615
completion of the voluntary action, as the intended use is	1616
specified in the documents establishing the institutional controls	1617
or activity and use limitations. If a property is subject to	1618
institutional controls that restrict its useor activity and use	1619
limitations and is put to a use that does not comply with the	1620
institutional controls or activity and use restrictions	1621
limitations specified in the documents establishing the	1622
institutional controls or activity and use limitations, the	1623
covenant not to sue issued under section 3746.12 of the Revised	1624
Code for the property in connection with the voluntary action for	1625
which the institutional controls or activity and use limitations	1626
were established is hereby declared to be void on and after the	1627
date of the commencement of the noncomplying use.	1628

Sec. 3746.10.  (A) Except as otherwise provided in section	1629
3746.02 of the Revised Code, any person may undertake a voluntary	1630
action under this chapter and rules adopted under it to identify	1631
and address potential sources of contamination by hazardous	1632
substances or petroleum of soil, sediments, surface water, or	1633
ground water on or underlying property and to establish that the	1634
property meets applicable standards. The voluntary action may	1635
include any one or more of the following elements:	1636

(1) A phase I property assessment conducted in accordance	1637
with rules adopted under division (B)(3) of section 3746.04 of the	1638
Revised Code or division (B) of section 3746.07 of the Revised	1639
Code, as appropriate;	1640

(2) A phase II property assessment conducted in accordance	1641
with rules adopted under division (B)(4) of section 3746.04 of the	1642
Revised Code or division (C) of section 3746.07 of the Revised	1643
Code, as appropriate;	1644

(3) A sampling plan;

1645

(4) A remediation plan;

1646

(5) Remedial activities;

1647

(6) Such other activities as the person undertaking the	1648
voluntary action considers to be necessary or appropriate to	1649
address the contamination.	1650

When the person undertaking a voluntary action determines	1651
that the property meets applicable standards, hethe person may	1652
seek a no further action letter from a certified professional. A	1653
no further action letter may be issued for the property at any	1654
stage of the identification of potential hazardous substance or	1655
petroleum contamination or remedial activities after a phase I or	1656
II property assessment has demonstrated that there is no reason to	1657
believe that there has been a release of hazardous substances or	1658
petroleum at or upon the property, that information indicates that	1659
there has been a release of hazardous substances or petroleum at	1660
or upon the property, but that the release is not in excess of	1661
applicable standards, or that if there has been such a release in	1662
excess of applicable standards, those standards have been achieved	1663
through remedial activities or will be achieved in accordance with	1664
the timeframes established in an operation and maintenance	1665
agreement entered into under division (A)(3) of section 3746.12 of	1666
the Revised Code or in such an agreement and a consolidated	1667
standards permit issued under section 3746.15 of the Revised Code.	1668

(B)(1) A person who is participating in the voluntary action	1669
program under this chapter and rules adopted under it shall do	1670
both of the following:	1671

(a) Utilize the services of a certified laboratory to perform	1672
any analyses that form the basis for the issuance of a no further	1673
action letter for a property and ensure that a laboratory performs	1674
in connection with a voluntary action only those analyses for	1675
which it is certified under rules adopted under division (B)(6) of	1676
section 3746.04 of the Revised Code or for which it is qualified	1677
prior to the adoption of those rules;	1678

(b) Utilize the services of a certified professional to	1679
verify that the property and any remedial activities undertaken at	1680
the property in connection with a voluntary action comply with	1681
applicable standards and, if those standards are met, to issue to	1682
the person a no further action letter for the property. For the	1683
purposes of such a verification, the certified professional shall	1684
perform and review all work that was conducted to support the	1685
request for the no further action letter or shall ensure that the	1686
work has been performed and reviewed by other persons with	1687
expertise and competence in areas other than those of the	1688
certified professional's expertise and competence as necessary for	1689
the issuance of the no further action letter.	1690

(2) No person who is participating in the voluntary action	1691
program shall do any of the following:	1692

(a) If the person also is a certified professional, prepare a	1693
no further action letter in connection with a voluntary action	1694
conducted at a property that hethe certified professional owns or	1695
operates;	1696

(b) Utilize the services of a certified professional who is	1697
employed by, affiliated with, or related to himthe participant or	1698
who was employed by or affiliated with himthe participant during	1699
the year preceding the date that hethe participant entered into	1700
the contract to utilize the services of the certified professional	1701
in connection with the voluntary action;	1702

(c) Utilize the services of a certified laboratory that is	1703
owned by or affiliated with himthe participant, that is owned by	1704
a person related to himthe participant, or that was owned by or	1705
affiliated with himthe participant during the year preceding the	1706
date that hethe participant entered into the contract to utilize	1707
the services of the certified laboratory in connection with the	1708
voluntary action, to perform any analyses that form the basis for	1709
the issuance of a no further action letter in connection with a	1710
voluntary action.	1711

A covenant not to sue issued under section 3746.12 of the	1712
Revised Code to a person who violated division (B)(2)(a), (b), or	1713
(c) of this section with respect to the no further action letter	1714
upon which issuance of the covenant was based is void.	1715

Except as otherwise provided in division (B)(2) of this	1716
section, a person who is participating in the voluntary action	1717
program may utilize an independent contractor to serve as a	1718
certified professional or certified laboratory.	1719

(C) In order to obtain a no further action letter, a person	1720
undertaking a voluntary action shall submit to a certified	1721
professional all of the following, as applicable:	1722

(1) Information demonstrating that there is no contamination	1723
by hazardous substances or petroleum of soil, sediments, surface	1724
water, or ground water on or underlying the property in	1725
concentrations exceeding applicable standards. The demonstrations	1726
shall be based upon the findings of a phase I or phase II property	1727
assessment.	1728

(2) If remedial activities were conducted in connection with	1729
the voluntary action, data demonstrating that the remedy meets	1730
applicable standards or will achieve applicable standards in	1731
accordance with the timeframes established in an operation and	1732
maintenance agreement entered into under division (A)(3) of	1733
section 3746.12 of the Revised Code or in such an agreement and a	1734
consolidated standards permit issued under section 3746.15 of the	1735
Revised Code;	1736

(3)(a) If the remedy relies on institutional controls or	1737
restrictions on the use of the property to achieve applicable	1738
standards, a demonstration that the institutional controls or the	1739
use restrictions have been recorded in the office of the county	1740
recorder of the county in which the property is located, or have	1741
been entered in the appropriate register for registered land as	1742
defined in section 5309.01 of the Revised Code, in compliance with	1743
section 3746.14 of the Revised Code;	1744

(b) If the person undertaking a voluntary action seeks to	1745
obtain a covenant not to sue and if the remedy relies on activity	1746
and use limitations to achieve applicable standards, a	1747
demonstration that the activity and use limitations have been	1748
developed in accordance with this chapter and rules adopted under	1749
it and are contained in a proposed environmental covenant that	1750
meets the requirements established in section 5301.82 of the	1751
Revised Code.	1752

(4) If the remedy relies on engineering controls that contain	1753
or control the release of hazardous substances or petroleum at or	1754
from the property, a plan for the proper operation and maintenance	1755
of the engineering controls.	1756

(D) Except as otherwise specifically provided in this chapter	1757
and rules adopted under it, voluntary actions under this chapter	1758
and rules adopted under it shall be undertaken in compliance with	1759
all applicable laws of this state and rules adopted under them and	1760
with applicable ordinances, resolutions, and rules of political	1761
subdivisions of this state.	1762

Sec. 3746.11.  (A) After receiving the demonstrations and	1763
operation and maintenance plan, if any, required to be submitted	1764
to hima certified professional under division (C) of section	1765
3746.10 of the Revised Code, athe certified professional shall	1766
review them to verify whether the property where the voluntary	1767
action was undertaken complies with applicable standards or shall	1768
ensure that they have been reviewed by another person or persons	1769
who performed work to support the request for the no further	1770
action letter as provided in division (B)(2) of section 3746.10 of	1771
the Revised Code. If, on the basis of the best knowledge,	1772
information, and belief of the certified professional, the	1773
certified professional concludes that the property meets	1774
applicable standards, hethe certified professional shall prepare	1775
a no further action letter for the property. The no further action	1776
letter shall contain all the information specified in rules	1777
adopted under division (B)(7) of section 3746.04 of the Revised	1778
Code or in division (E) of section 3746.07 of the Revised Code, as	1779
applicable.	1780

Upon completion of a no further action letter, the certified	1781
professional shall send a copy of the letter to the person who	1782
undertook the voluntary action. The letter shall be accompanied by	1783
a written request that the person notify the certified	1784
professional as to whether the person wishes to submit the no	1785
further action letter to the director of environmental protection	1786
and by a written notice informing the person that the original	1787
letter may be submitted to the director only by a certified	1788
professional and that the person may receive a covenant not to sue	1789
from the director in connection with the voluntary action only if	1790
the no further action letter for the voluntary action is submitted	1791
to the director on histhe person's behalf by the certified	1792
professional.	1793

Promptly after receipt of the letter and request, the person	1794
who undertook the voluntary action shall send written notice to	1795
the certified professional informing himthe certified	1796
professional as to whether the person wishes to submit the letter	1797
to the director and shall send a copy of the notice to the	1798
director. If the person's notice indicates that hethe person	1799
wishes to have the no further action letter submitted to the	1800
director, promptly after receipt of the notice, the certified	1801
professional shall submit the original no further action letter,	1802
together with a proposed environmental convenant, if applicable,	1803
and a proposed operation and maintenance agreement, if applicable,	1804
to the director by certified mail on behalf of the person who	1805
undertook the voluntary action. If the person who undertook the	1806
voluntary action notifies the certified professional that hethe	1807
person does not wish to submit the no further action letter to the	1808
director, the certified professional shall send the original	1809
letter to the person promptly after receiving the notice.	1810

(B) If after reviewing the demonstrations required to be	1811
submitted to himthe certified professional under division (C) of	1812
section 3746.10 of the Revised Code, the certified professional	1813
finds that the property where the voluntary action was undertaken	1814
does not comply with applicable standards, the certified	1815
professional shall send to the person who undertook the voluntary	1816
action written notice of that fact and of the certified	1817
professional's inability to issue a no further action letter for	1818
the property.	1819

(C) A certified professional shall prepare a summary report	1820
detailing histhe certified professional's findings and	1821
conclusions about the environmental conditions at the property	1822
concerning which the professional was requested to prepare a no	1823
further action letter and the remedial activities undertaken to	1824
mitigate or abate any threat to public health and safety and the	1825
environment, including, without limitation, all of the following:	1826

(1) A description of the nature and extent of contamination	1827
emanating from sources on the property;	1828

(2) A risk assessment performed in accordance with rules	1829
adopted under division (B)(2) of section 3746.04 of the Revised	1830
Code if such an assessment was used in lieu of generic numerical	1831
clean-up standards established in rules adopted under division	1832
(B)(1) of that section;	1833

(3) A description of any remedy conducted at the property and	1834
how the remedy complies with applicable standards;	1835

(4) A description of any plan for the proper operation and	1836
maintenance of engineering controls identified under division	1837
(C)(4) of section 3746.10 of the Revised Code;	1838

(5) Any documents prepared by any other person who performed	1839
work to support the request for the no further action letter as	1840
provided in division (B)(2) of section 3746.10 of the Revised	1841
Code.	1842

(D) A certified professional shall maintain all documents and	1843
data prepared or acquired by himthe certified professional in	1844
connection with a no further action letter for not less than ten	1845
years after the date of issuance of the letter or after the notice	1846
required under division (B) of this section has been sent, as	1847
applicable, or for a longer period as determined in rules adopted	1848
under section 3746.04 of the Revised Code. The director shall have	1849
access to those documents and data in accordance with section	1850
3746.18 or 3746.31 of the Revised Code.	1851

Sec. 3746.13.  (A) For property that does not involve the	1852
issuance of a consolidated standards permit under section 3746.15	1853
of the Revised Code and where no engineering or institutional	1854
controlsremedial activities for which there is a required	1855
operation and maintenance agreement or an environmental covenant	1856
under this chapter or sections 5301.80 to 5301.92 of the Revised	1857
Code, as applicable, are used to comply with applicable standards,	1858
the director of environmental protection shall issue a covenant	1859
not to sue pursuant to section 3746.12 of the Revised Code by	1860
issuance of an order and as a final action under Chapter 3745. of	1861
the Revised Code within thirty days after the director receives	1862
the no further action letter for the property and accompanying	1863
verification from the certified professional who prepared the	1864
letter under section 3746.11 of the Revised Code.	1865

(B) For property that involves the issuance of a consolidated	1866
standards permit under section 3746.15 of the Revised Code or	1867
where engineering or institutional controlsremedial activities	1868
for which there is a required operation and maintenance agreement	1869
or an environmental covenant under this chapter or sections	1870
5301.80 to 5301.92 of the Revised Code, as applicable, are used to	1871
comply with applicable standards, the director shall issue a	1872
covenant not to sue pursuant to section 3746.12 of the Revised	1873
Code by issuance of an order and as a final action under Chapter	1874
3745. of the Revised Code within ninety days after the director	1875
receives the no further action letter for the property and	1876
accompanying verification from the certified professional who	1877
prepared the letter and enters into an environmental convenant	1878
regarding the property, if applicable.	1879

(C) Except as provided in division (D) of this section, each	1880
person who is issued a covenant not to sue under this section	1881
shall pay the fee established pursuant to rules adopted under	1882
division (B)(8) of section 3746.04 of the Revised Code. Until	1883
those rules become effective, each person who is issued a covenant	1884
not to sue shall pay a fee of two thousand dollars. The fee shall	1885
be paid to the director at the time that the no further action	1886
letter and accompanying verification are submitted to the	1887
director.	1888

(D) An applicant, as defined in section 122.65 of the Revised	1889
Code, who has entered into an agreement under section 122.653 of	1890
the Revised Code and who is issued a covenant not to sue under	1891
this section shall not be required to pay the fee for the issuance	1892
of a covenant not to sue established in rules adopted under	1893
division (B)(8) of section 3746.04 of the Revised Code.	1894

Sec. 3746.14.  (A) Except as otherwise provided in division	1895
(B) of this section, a no further action letter issued for a	1896
property under section 3746.11 of the Revised Code, a covenant not	1897
to sue issued for the property under section 3746.12 of the	1898
Revised Code, and any restrictions on the use of such property	1899
identified pursuant to division (C)(3) of section 3746.10 of the	1900
Revised Code shall be filed in the office of the county recorder	1901
of the county in which the property is located by the person to	1902
whom the covenant not to sue was issued and shall be recorded in	1903
the same manner as a deed to the property. The no further action	1904
letter, covenant not to sue, and use restrictions, if any, shall	1905
run with the propertythe person to whom a covenant not to sue for	1906
a property has been issued under section 3746.12 of the Revised	1907
Code shall file for recording in the office of the county recorder	1908
of the county in which the property is located a true and accurate	1909
copy of all of the following:	1910

(1) The no further action letter issued under section 3746.11	1911
of the Revised Code or an executive summary of it;	1912

(2) The covenant not to sue issued for the property under	1913
section 3746.12 of the Revised Code;	1914

(3) The environmental covenant for the property, if any,	1915
proposed pursuant to division (C)(3)(b) of section 3746.10 of the	1916
Revised Code and executed under section 5301.82 of the Revised	1917
Code.	1918

The documents specified in divisions (A)(1) to (3) of this	1919
section shall be recorded in the same manner as a deed to the	1920
property. The no further action letter, covenant not to sue, and	1921
environmental covenant, if any, shall run with the property.	1922

No person shall fail to comply with this division.

1923

(B) Pursuant to Chapter 5309. of the Revised Code, a no	1924
further action letter, a covenant not to sue, and, if applicable,	1925
any operation and maintenance agreement and use restrictions	1926
environmental covenant prepared, issued, entered into, or	1927
identified under this chapter and rules adopted under it or under	1928
sections 5301.80 to 5301.92 of the Revised Code, as applicable, in	1929
connection with registered land, as defined in section 5309.01 of	1930
the Revised Code, shall be entered as a memorial on the page of	1931
the register where the title of the owner is registered.	1932

(C) A no further action letter, a covenant not to sue, and	1933
any agreement authorized to be entered into and entered into under	1934
this chapter and rules adopted under it may be transferred by the	1935
recipient to any other person by assignment or in conjunction with	1936
the acquisition of title to the property to which the document	1937
applies.	1938

Sec. 3746.171.  The director of environmental protection	1939
shall maintain a record of the properties for which covenants not	1940
to sue were issued under section 3746.12 of the Revised Code that	1941
involve institutional controls or activity and use limitations	1942
that restrict the use of the properties in order to comply with	1943
applicable standards. The records pertaining to those properties	1944
shall indicate the use restrictions or activity and use	1945
limitations applicable to each of them. At least once every five	1946
years, the director or hisan authorized representative of the	1947
director shall visually inspect each such property to determine	1948
whether the property is being used in compliance with the	1949
applicable institutional controls or activity and use limitations.	1950

Sec. 5301.80.  As used in sections 5301.80 to 5301.92 of the	1951
Revised Code:	1952

(A) "Activity and use limitations" means restrictions or	1953
obligations created under sections 5301.80 to 5301.92 of the	1954
Revised Code with respect to real property.	1955

(B) "Agency" means the environmental protection agency or any	1956
other state or federal agency that determines or approves the	1957
environmental response project pursuant to which an environmental	1958
covenant is created.	1959

(C) "Common interest community" means a condominium, a	1960
cooperative, or other real property with respect to which a	1961
person, by virtue of the person's ownership of a parcel of real	1962
property, is obligated to pay property taxes or insurance premiums	1963
or to pay for maintenance or improvement of other real property	1964
described in a recorded covenant that creates the common interest	1965
community.	1966

(D) "Environmental covenant" means a servitude arising under	1967
an environmental response project that imposes activity and use	1968
limitations and that meets the requirements established in section	1969
5301.82 of the Revised Code.	1970

(E) "Environmental response project" means a plan or work	1971
performed for environmental remediation of real property or for	1972
protection of ecological features associated with real property	1973
and conducted as follows:	1974

(1) Under a federal or state program governing environmental	1975
remediation of real property that is subject to agency review or	1976
approval, including, but not limited to, property that is the	1977
subject of any of the following:	1978

(a) A corrective action, closure, or post-closure pursuant to	1979
the "Resource Conservation and Recovery Act of 1976," 90 Stat.	1980
2806, 42 U.S.C.A. 6921, et seq., as amended, or any regulation	1981
adopted under that act, or Chapter 3734. of the Revised Code or	1982
any rule adopted under it;	1983

(b) A removal or remedial action pursuant to the	1984
"Comprehensive Environmental Response, Compensation, and Liability	1985
Act of 1980," 94 Stat. 2767, 42 U.S.C.A. 9601, et seq., as	1986
amended, or any regulation adopted under that act, or Chapter	1987
3734. or 6111. of the Revised Code or any rule adopted under those	1988
chapters;	1989

(c) A no further action letter submitted with a request for a	1990
covenant not to sue pursuant to section 3746.11 of the Revised	1991
Code;	1992

(d) A no further action letter prepared pursuant to section	1993
122.654 of the Revised Code;	1994

(e) A corrective action pursuant to section 3737.88,	1995
3737.882, or 3737.89 of the Revised Code or any rule adopted under	1996
those sections.	1997

(2) Pursuant to a mitigation requirement associated with the	1998
section 401 water quality certification program or the isolated	1999
wetland program as required by Chapter 6111. of the Revised Code;	2000

(3) Pursuant to a grant commitment or loan agreement entered	2001
into pursuant to section 6111.036 or 6111.037 of the Revised Code;	2002

(4) Pursuant to a supplemental environmental project embodied	2003
in orders issued by the director of environmental protection	2004
pursuant to Chapter 6111. of the Revised Code.	2005

(F) "Holder" means a grantee of an environmental covenant as	2006
specified in division (A) of section 5301.81 of the Revised Code.	2007

(G) "Person" includes the state, a political subdivision,	2008
another state or local entity, the United States and any agency or	2009
instrumentality of it, and any legal entity defined as a person	2010
under section 1.59 of the Revised Code.	2011

(H) "Record," when used as a noun, means information that is	2012
inscribed on a tangible medium or that is stored in an electronic	2013
or other medium and is retrievable in perceivable form.	2014

Sec. 5301.81. (A) Any person, including a person that owns an	2015
interest in the real property that is the subject of an	2016
environmental covenant, may be a holder. An environmental covenant	2017
may identify more than one holder.	2018

(B) The interest of a holder is an interest in real property.	2019
However, a right of an agency under sections 5301.80 to 5301.92 of	2020
the Revised Code or under an environmental covenant, other than a	2021
right as a holder, is not an interest in real property.	2022

Sec. 5301.82.  (A) An environmental covenant shall contain	2023
all of the following:	2024

(1) A statement that the instrument is an environmental	2025
covenant executed pursuant to sections 5301.80 to 5301.92 of the	2026
Revised Code;	2027

(2) A legally sufficient description of the real property	2028
that is subject to the environmental covenant;	2029

(3) A description of the activity and use limitations on the	2030
real property;	2031

(4) Requirements for notice following transfer of a specified	2032
interest in, or concerning proposed changes in the use of,	2033
applications for building permits for, or proposals for any site	2034
work affecting contamination on, the property that is subject to	2035
the environmental covenant;	2036

(5) The name or identity of every holder;

2037

(6) Rights of access to the property granted in connection	2038
with implementation or enforcement of the environmental covenant;	2039

(7) The signatures of the applicable agency, every holder,	2040
and, unless waived by the agency, every owner of the fee simple of	2041
the real property that is subject to the environmental covenant;	2042

(8) An identification of the name and location of any	2043
administrative record for the environmental response project	2044
pursuant to which the environmental covenant is created.	2045

(B) In addition to the information required by division (A)	2046
of this section, an environmental covenant may contain other	2047
information, restrictions, and requirements agreed to by the	2048
persons who signed the environmental covenant, including any of	2049
the following:	2050

(1) Requirements for periodic reporting describing compliance	2051
with the environmental covenant;	2052

(2) A brief narrative description of contamination on the	2053
property and its remedy, including the contaminants of concern,	2054
the pathways of exposure, limits on exposure, and the location and	2055
extent of the contamination;	2056

(3) Limitations on amendment or termination of the	2057
environmental covenant in addition to those established in	2058
sections 5301.89 and 5301.90 of the Revised Code;	2059

(4) Rights of the holder in addition to the right to enforce	2060
the environmental covenant pursuant to section 5301.91 of the	2061
Revised Code.	2062

(C) In addition to other conditions for an agency's approval	2063
of an environmental covenant, the agency may require those persons	2064
specified by the agency who have interests in the real property	2065
that is the subject of the environmental covenant to sign the	2066
covenant.	2067

Sec. 5301.83.  (A) A copy of an environmental covenant shall	2068
be provided to all of the following in a manner required by the	2069
applicable agency:	2070

(1) Each person that signed the environmental covenant;

2071

(2) Each person holding a recorded interest in the real	2072
property that is subject to the environmental covenant;	2073

(3) Each person in possession of the real property that is	2074
subject to the environmental covenant;	2075

(4) Each unit of local government in which the real property	2076
that is subject to the environmental covenant is located;	2077

(5) Any other person that the agency requires.

2078

(B) The validity of an environmental covenant is not affected	2079
by failure to provide a copy of the environmental covenant as	2080
required under this section.	2081

Sec. 5301.84. An agency is bound by any obligation that it	2082
expressly assumes in an environmental covenant, but an agency does	2083
not assume obligations merely by signing an environmental	2084
covenant. Any other person that signs an environmental covenant is	2085
bound by the obligations that the person assumes in the	2086
environmental covenant, but signing the environmental covenant	2087
does not change obligations, rights, or protections that are	2088
granted or imposed under law other than sections 5301.80 to	2089
5301.92 of the Revised Code, except as provided in the	2090
environmental covenant.	2091

Sec. 5301.85.  (A) An environmental covenant that complies	2092
with sections 5301.80 to 5301.92 of the Revised Code runs with the	2093
land.	2094

(B) An environmental covenant that is otherwise effective is	2095
valid and enforceable even if any of the following limitations on	2096
enforcement of interests applies:	2097

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

2098

(2) It can be or has been assigned to a person other than the	2099
original holder.	2100

(3) It is not of a character that has been recognized	2101
traditionally at common law.	2102

(4) It imposes a negative burden.

2103

(5) It imposes an affirmative obligation on a person having	2104
an interest in the real property or on the holder.	2105

(6) The benefit or burden of the environmental covenant does	2106
not touch or concern real property.	2107

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

2108

(8) The holder dies, ceases to exist, resigns, or is	2109
replaced.	2110

(9) The owner of an interest that is subject to the	2111
environmental covenant and the holder are the same person.	2112

(C) An instrument that creates restrictions or obligations	2113
with respect to real property that would qualify as activity and	2114
use limitations except for the fact that the instrument was	2115
recorded before the effective date of sections 5301.80 to 5301.92	2116
of the Revised Code is not invalid or unenforceable because of any	2117
of the limitations on enforcement of interests described in	2118
division (B) of this section or because it was identified as an	2119
easement, servitude, deed restriction, or other interest. Sections	2120
5301.80 to 5301.92 of the Revised Code do not apply in any other	2121
respect to such an instrument.	2122

(D) Sections 5301.80 to 5301.92 of the Revised Code do not	2123
invalidate or render unenforceable any interest, whether	2124
designated as an environmental covenant or other interest, that is	2125
otherwise enforceable under the laws of this state.	2126

(E) Nothing in sections 5301.80 to 5301.92 of the Revised	2127
Code shall be construed to restrict, affect, or impair the rights	2128
of any person under the Revised Code or common law to enter into	2129
or record a restrictive covenant, institutional control, easement,	2130
servitude, or other restriction on the use of property that does	2131
not satisfy the requirements of division (A) of section 5301.82 of	2132
the Revised Code and does not have the permission, approval, or	2133
consent of an agency, political subdivision, regulatory body, or	2134
other unit of government. However, a restrictive covenant,	2135
institutional control, easement, servitude, or other restriction	2136
on the use of property entered into or recorded without such	2137
permission, approval, or consent is not an environmental covenant	2138
and is not binding on an agency, political subdivision, regulatory	2139
body, or other unit of government.	2140

Sec. 5301.86. With respect to interests in real property in	2141
existence at the time that an environmental covenant is created or	2142
amended, all of the following apply:	2143

(A) An interest that has priority under other law is not	2144
affected by an environmental covenant unless the person that owns	2145
the interest agrees to subordinate that interest to the	2146
environmental covenant.	2147

(B) Sections 5301.80 to 5301.92 of the Revised Code do not	2148
require a person that owns a prior interest to subordinate that	2149
interest to an environmental covenant or to agree to be bound by	2150
the covenant.	2151

(C) A subordination agreement may be contained in an	2152
environmental covenant or in a separate record. If the	2153
environmental covenant covers commonly owned property in a common	2154
interest community, the record may be signed by any person who is	2155
authorized by the common interest community.	2156

(D) An agreement by a person to subordinate a prior interest	2157
to an environmental covenant affects the priority of that	2158
persons's interest, but does not by itself impose any affirmative	2159
obligation on the person with respect to the environmental	2160
covenant.	2161

Sec. 5301.87. Sections 5301.80 to 5301.92 of the Revised Code	2162
do not authorize a use of real property that is otherwise	2163
prohibited by zoning, by law other than sections 5301.80 to	2164
5301.92 of the Revised Code regulating use of real property, or by	2165
a recorded instrument that has priority over an environmental	2166
covenant. An environmental covenant may prohibit or restrict uses	2167
of real property that are authorized by zoning or by law other	2168
than sections 5301.80 to 5301.92 of the Revised Code.	2169

Sec. 5301.88.  (A) Except as otherwise provided in division	2170
(B) of this section, an environmental covenant and any amendment	2171
or termination of the environmental covenant shall be filed in the	2172
office of the county recorder of each county in which the real	2173
property that is subject to the environmental covenant is located	2174
and shall be recorded in the same manner as a deed to the	2175
property. For purposes of indexing, a holder shall be treated as a	2176
grantee.	2177

(B) Pursuant to Chapter 5309. of the Revised Code, an	2178
environmental covenant and any amendment or termination of the	2179
environmental covenant in connection with registered land, as	2180
defined in section 5309.01 of the Revised Code, shall be entered	2181
as a memorial on the page of the register where the title of the	2182
owner is registered.	2183

(C) Except as otherwise provided in division (C) of section	2184
5301.89 of the Revised Code, an environmental covenant is subject	2185
to the laws of this state governing recording and priority of	2186
interest in real property.	2187

Sec. 5301.89. (A) An environmental covenant is perpetual	2188
unless any of the following applies:	2189

(1) The environmental covenant is limited by its terms to a	2190
specific duration or is terminated by its terms by the occurrence	2191
of a specific event.	2192

(2) The environmental covenant is terminated by consent	2193
pursuant to section 5301.90 of the Revised Code.	2194

(3) The environmental covenant is terminated pursuant to	2195
division (B) of this section.	2196

(4) The environmental covenant is terminated by foreclosure	2197
of an interest that has priority over the environmental covenant.	2198

(5) The environmental covenant is terminated or modified in	2199
an eminent domain proceeding, but only if all of the following	2200
apply:	2201

(a) The agency that signed the environmental covenant is a	2202
party to the proceeding.	2203

(b) All persons identified in divisions (A) and (B) of	2204
section 5301.90 of the Revised code are given notice of the	2205
pendency of the proceeding.	2206

(c) The court determines, after a hearing, that the	2207
termination or modification will not adversely affect human health	2208
or safety or the environment.	2209

(B) If the agency that signed an environmental covenant has	2210
determined that the intended benefits of the environmental	2211
covenant can no longer be realized, a court, under the doctrine of	2212
changed circumstances, in an action in which all persons	2213
identified in divisions (A) and (B) of section 5301.90 of the	2214
Revised Code have been given notice, may terminate the	2215
environmental covenant or reduce its burden on the real property	2216
that is subject to the environmental covenant.	2217

(C) Except as otherwise provided in divisions (A) and (B) of	2218
this section, an environmental covenant may not be extinguished,	2219
limited, or impaired through issuance of a tax deed, foreclosure	2220
of a tax lien, or application of the doctrine of adverse	2221
possession, prescription, abandonment, waiver, lack of	2222
enforcement, or acquiescence or a similar doctrine.	2223

(D) An environmental covenant may not be extinguished,	2224
limited, or impaired by application of sections 5301.47 to 5301.56	2225
of the Revised Code.	2226

Sec. 5301.90.  (A) An environmental covenant may be amended	2227
or terminated by consent only if the amendment or termination is	2228
signed by all of the following:	2229

(1) The applicable agency;

2230

(2) Unless waived by that agency, the current owner of the	2231
fee simple of the real property that is subject to the	2232
environmental covenant;	2233

(3) Each person that originally signed the environmental	2234
covenant unless the person waived in a signed record the right to	2235
consent or a court finds that the person no longer exists or	2236
cannot be located or identified with the exercise of reasonable	2237
diligence;	2238

(4) Except as otherwise provided in division (D)(2) of this	2239
section, each holder.	2240

(B) If an interest in real property is subject to an	2241
environmental covenant, the interest is not affected by an	2242
amendment of the environmental covenant unless the current owner	2243
of the interest consents in writing to the amendment or has waived	2244
in a signed record the right to consent to amendments.	2245

(C) Except for an assignment undertaken pursuant to a	2246
governmental reorganization, assignment of an environmental	2247
covenant to a new holder is an amendment of the environmental	2248
covenant.	2249

(D) Except as otherwise provided in an environmental	2250
covenant, both of the following apply:	2251

(1) A holder may not assign its interest without consent of	2252
the other parties to the environmental covenant specified in	2253
division (A) of this section.	2254

(2) A holder may be removed and replaced by agreement of the	2255
other parties specified in division (A) of this section.	2256

(E) A court of competent jurisdiction may fill a vacancy in	2257
the position of holder.	2258

Sec. 5301.91.  (A) A civil action for injunctive or other	2259
equitable relief for violation of an environmental covenant may be	2260
maintained by any of the following:	2261

(1) A party to the environmental covenant specified in	2262
division (A) of section 5301.90 of the Revised Code that is not	2263
otherwise specified in divisions (A)(2) to (6) of this section;	2264

(2) The environmental protection agency;

2265

(3) The applicable agency if it is other than the	2266
environmental protection agency;	2267

(4) Any person to whom the environmental covenant expressly	2268
grants the authority to maintain such an action;	2269

(5) A person whose interest in the real property or whose	2270
collateral or liability may be affected by the alleged violation	2271
of the environmental covenant;	2272

(6) A unit of local government in which the real property	2273
that is subject to the environmental covenant is located.	2274

(B) Sections 5301.80 to 5301.92 of the Revised Code do not	2275
limit the regulatory authority of the applicable agency or the	2276
environmental protection agency if it is not the applicable agency	2277
under any law other than sections 5301.80 to 5301.92 of the	2278
Revised Code with respect to an environmental response project.	2279

(C) A person is not responsible for or subject to liability	2280
for environmental remediation solely because it has the right to	2281
enforce an environmental covenant.	2282

Sec. 5301.92.  Sections 5301.80 to 5301.92 of the Revised	2283
Code modify, limit, or supersede the "Electronic Signatures in	2284
Global and National Commerce Act," 114 Stat. 464 (2000), 15 U.S.C.	2285
7001 et seq., as amended, except that sections 5301.80 to 5301.92	2286
of the Revised Code do not modify, limit, or supersede section 101	2287
of that act, 15 U.S.C. 7001(a), as amended, or authorize	2288
electronic delivery of any of the notices described in section 103	2289
of that act, 15 U.S.C. 7003(b), as amended.	2290

Section 2. That existing sections 123.01, 317.08, 3734.22,	2291
3734.24, 3734.25, 3734.26, 3737.88, 3737.882, 3745.01, 3746.01,	2292
3746.04, 3746.05, 3746.10, 3746.11, 3746.13, 3746.14, and 3746.171	2293
of the Revised Code are hereby repealed.	2294