As Introduced

129th General Assembly Regular Session 2011-2012

S. B. No. 302

Senator Manning 

Cosponsors: Senators Coley, Patton, Seitz 

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A BILL

To amend sections 3734.41 and 3734.42 of the Revised

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Code to revise requirements governing background

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investigations for purposes of the Solid,

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Hazardous, and Infectious Wastes Law.

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

Section 1. That sections 3734.41 and 3734.42 of the Revised	5
Code be amended to read as follows:	6

Sec. 3734.41.  As used in sections 3734.41 to 3734.47 of the	7
Revised Code:	8

(A) "Applicant" means any person seeking a permit or license	9
for an off-site facility and any person or business concern	10
operating such a facility for an applicant.	11

(B) "Application" means the forms and accompanying documents	12
filed in connection with the applicant's request for a permit.	13

(C) "Business concern" means any corporation, association,	14
firm, partnership, trust, or other form of commercial	15
organization.	16

(D) "Disclosure statement" means a statement submitted to the	17
director of environmental protection and the attorney general by	18
an applicant. The statement shall include all of the following:	19

(1) The full name, business address, and social security	20
number of the applicant or, if the applicant is a business	21
concern, of all officers, directors, partners, or key employees	22
thereof and all individuals or business concerns holding any	23
equity in or debt liability of that business concern or, if the	24
business concern is a publicly traded corporation, all individuals	25
or business concerns holding more than five per cent of the equity	26
in or debt liability of that business concern, except that when	27
the debt liability is held by a chartered lending institution, the	28
applicant need supply only the name and business address of the	29
lending institution;	30

(2) The full name, business address, and social security	31
number of all officers, directors, or partners of any business	32
concern disclosed in the statement and the names and addresses of	33
all persons holding any equity in or debt liability of any	34
business concern so disclosed or, if the business concern is a	35
publicly traded corporation, all individuals or business concerns	36
holding more than five per cent of the equity in or debt liability	37
of that business concern, except that when the debt liability is	38
held by a chartered lending institution, the applicant need supply	39
only the name and business address of the lending institution;	40

(3) The full name and business address of any company in	41
which the applicant holds an equity interest and that collects,	42
transfers, transports, treats, stores, or disposes of solid	43
wastes, infectious wastes, or hazardous waste or processes solid	44
wastes that consist of scrap tires;	45

(4) A description of the experience and credentials,	46
including any past or present permits or licenses, for the	47
collection, transfer, transportation, treatment, storage, or	48
disposal of solid wastes, infectious wastes, or hazardous waste,	49
or the processing of solid wastes that consist of scrap tires,	50
possessed by the applicant or, if the applicant is a business	51
concern, by the officers, directors, partners, or key employees	52
thereof;	53

(5) A listing and explanation of any civil or criminal	54
prosecution by government agencies, administrative enforcement	55
actions resulting in the imposition of sanctions, or license	56
revocations or denials issued by any state or federal authority in	57
the ten years immediately preceding the filing of the application,	58
that are pending or have resulted in a finding or a settlement of	59
a violation of any law or rule or regulation relating to the	60
collection, transfer, transportation, treatment, storage, or	61
disposal of solid wastes, infectious wastes, or hazardous waste,	62
or the processing of solid wastes that consist of scrap tires, or	63
of any other environmental protection statute, by the applicant	64
or, if the applicant is a business concern, by the business	65
concern or any officer, director, partner, or key employee	66
thereof. For the purposes of division (D)(5) of this section,	67
violations of any law or rule relating to the transportation of	68
solid wastes, infectious wastes, or hazardous waste do not include	69
violations that also apply to the transportation of commodities	70
that are not wastes.	71

(6) A listing and explanation of any judgment of liability or	72
conviction that was rendered pursuant to any state or federal law	73
or local ordinance resulting in the imposition of a sanction	74
against the applicant or, if the applicant is a business concern,	75
against the business concern or any officer, director, partner, or	76
key employee thereof in the five years immediately preceding the	77
initial filing of an application;	78

(7) A listing of any agency outside this state that has or	79
has had regulatory responsibility over the applicant in connection	80
with its collection, transfer, transportation, treatment, storage,	81
or disposal of solid wastes, infectious wastes, or hazardous waste	82
or processing of solid wastes that consist of scrap tires;	83

(8) Any other information the attorney general or the	84
director may require that relates to the competency, reliability,	85
or good character of the applicantin the five years immediately	86
preceding the initial filing of an application.	87

(E) "Key employee" means any individual, other than a public	88
official or employee as defined in division (B) of section 102.01	89
of the Revised Code who is required to file a statement under	90
section 102.02 of the Revised Code, employed by the applicant or	91
the licensee in a supervisory capacity or empowered to make	92
discretionary decisions with respect to the solid waste,	93
infectious waste, or hazardous waste operations of the business	94
concern, but does not include any employee exclusively engaged in	95
the physical or mechanical collection, transfer, transportation,	96
treatment, storage, or disposal of solid wastes, infectious	97
wastes, or hazardous waste or processing of solid wastes that	98
consist of scrap tires. If the applicant or permittee has entered	99
into a contract with another person to operate the facility that	100
is the subject of the permit or license or application for a	101
permit or license, "key employee" also includes those employees of	102
the contractor who act in a supervisory capacity, or are empowered	103
to make discretionary decisions, with respect to the operation of	104
the solid, infectious, or hazardous waste facility. An officer or	105
director of a business concern required to file a disclosure	106
statement under section 3734.42 of the Revised Code who meets the	107
definition of "key employee" shall be considered a key employee	108
for purposes of the filing and disclosure requirements of sections	109
3734.42 to 3734.47 of the Revised Code.	110

(F) "License" means the annual license required by section	111
3734.05 of the Revised Code for an off-site solid waste disposal	112
or transfer facility or an off-site infectious waste treatment	113
facility.	114

(G) "Off-site facility" means a facility that is located off	115
the premises where the solid wastes, infectious wastes, or	116
hazardous waste is generated, but does not include any such	117
facility that exclusively disposes of wastes that are generated	118
from the combustion of coal, or from the combustion of primarily	119
coal in combination with scrap tires, that is not combined in any	120
way with garbage or any such facility that is owned and operated	121
by the generator of the waste and that exclusively stores,	122
processes, or disposes of or transfers solid wastes, exclusively	123
treats infectious wastes, or exclusively disposes of hazardous	124
waste, generated at one or more premises owned by the generator.	125

(H) "Permit" means a permit to install and any subsequent	126
modifications for an off-site solid waste disposal facility,	127
including an incineration facility, or transfer facility, issued	128
under section 3734.05 of the Revised Code; a permit to install and	129
any subsequent modifications for an off-site solid waste facility	130
that is a scrap tire storage, monocell, monofill, or recovery	131
facility issued under section 3734.76, 3734.77, or 3734.78 of the	132
Revised Code, as applicable; a permit to install and any	133
subsequent modifications for an off-site infectious waste	134
treatment facility issued under section 3734.05 of the Revised	135
Code; and a permit to install and operate an off-site hazardous	136
waste treatment, storage, or disposal facility and the	137
modification or renewal of a hazardous waste permit for the	138
treatment, storage, or disposal of hazardous waste issued under	139
section 3734.05 of the Revised Code.	140

(I) "Permittee" means any person who has received a permit or	141
license for an off-site facility.	142

Sec. 3734.42.  (A)(1) Except as otherwise provided in	143
division (E)(2) of this section, everyEvery applicant for a	144
permit other than a permit modification or renewal shall file a	145
disclosure statement, on a form developed by the attorney general,	146
with the director of environmental protection and the attorney	147
general at the same time the applicant files an application for a	148
permit other than a permit modification or renewal with the	149
director.	150

(2) Any individual required to be listed in the disclosure	151
statement shall be fingerprinted for identification and	152
investigation purposes in accordance with procedures established	153
by the attorney general. An individual required to be	154
fingerprinted under this section shall not be required to be	155
fingerprinted more than once under this section.	156

(3) The attorney general, within one hundred eighty days	157
after receipt of the disclosure statement from an applicant for a	158
permit, shall prepare and transmit to the director an	159
investigative report on the applicant, based in part upon the	160
disclosure statement, except that this deadline may be extended	161
for a reasonable period of time, for good cause, by the director	162
or the attorney general. In preparing this report, the attorney	163
general may request and receive criminal history information from	164
the federal bureau of investigation and any other law enforcement	165
agency or organization. The attorney general may provide such	166
confidentiality regarding the information received from a law	167
enforcement agency as may be imposed by that agency as a condition	168
for providing that information to the attorney general.	169

(4) The review of the application by the director shall	170
include a review of the disclosure statement and investigative	171
report.	172

(B) All applicants and permittees shall provide any	173
assistance or information requested by the director or the	174
attorney general and shall cooperate in any inquiry or	175
investigation conducted by the attorney general and any inquiry,	176
investigation, or hearing conducted by the director. If, upon	177
issuance of a formal request to answer any inquiry or produce	178
information, evidence, or testimony, any applicant or permittee,	179
any officer, director, or partner of any business concern, or any	180
key employee of the applicant or permittee refuses to comply, the	181
permit of the applicant or permittee may be denied or revoked by	182
the director.	183

(C) The attorney general may charge and collect such fees	184
from applicants and permittees as are necessary to cover the costs	185
of administering and enforcing the investigative procedures	186
authorized in sections 3734.41 to 3734.47 of the Revised Code. The	187
attorney general shall transmit moneys collected under this	188
division to the treasurer of state to be credited to the solid and	189
hazardous waste background investigations fund, which is hereby	190
created in the state treasury. Moneys in the fund shall be used	191
solely for paying the attorney general's costs of administering	192
and enforcing the investigative procedures authorized in sections	193
3734.41 to 3734.47 of the Revised Code.	194

(D) Annually on the anniversary date of the submission to the	195
director by the attorney general of the investigative report for a	196
specific facility, or annually on another date assigned by the	197
attorney general, theAn appropriate applicant, a permittee, or a	198
prospective owner shall submit to the attorney general, on a form	199
provided by the attorney general, any and all information required	200
to be included in a disclosure statement that has changed or been	201
added in the immediately preceding year. If, in the immediately	202
preceding year, there have been no changes in or additions to the	203
information required to be included in a disclosure statement, the	204
appropriate applicant, permittee, or prospective owner shall	205
submit to the attorney general an affidavit stating that there	206
have been no changes in or additions to that information during	207
that time period.	208

Notwithstanding the requirement for an annual submission of	209
information, the following information shall be submitted within	210
the periods specified:	211

(1) Information required to be included in the disclosure	212
statement for any new officer, director, partner, or key employee,	213
to be submitted within ninety days from the addition of the	214
officer, director, partner, or key employee;	215

(2) Information required to be included in a disclosure	216
statement forregarding the addition of any new business concern,	217
to be submitted within ninety days from the addition of the new	218
business concern;	219

(3) Information regarding any new criminal conviction, to be	220
submitted within ninety days from the judgment entry of	221
conviction.	222

(E)(1) The attorney general shall enter in the database	223
established under section 109.5721 of the Revised Code the name,	224
the fingerprints, and other relevant information concerning each	225
officer, director, partner, or key employee of an applicant,	226
permittee, or prospective owner.	227

(2) For purposes of section 109.5721 of the Revised Code,	228
annually on a date assigned by the attorney general, an applicant,	229
permittee, or prospective owner shall provide the attorney general	230
with a list of both of the following:	231

(a) Each officer, director, partner, or key employee of the	232
applicant, permittee, or prospective owner and the person's	233
address and social security number;	234

(b) Any officer, director, partner, or key employee of the	235
applicant, permittee, or prospective owner who has left a position	236
previously held with the applicant, permittee, or prospective	237
owner during the previous one-year period and the person's social	238
security number.	239

(3) Annually, the attorney general shall update the database	240
established under section 109.5721 of the Revised Code to reflect	241
the information provided by an applicant, permittee, or	242
prospective owner under divisions (E)(2)(a) and (b) of this	243
section.	244

(4) Notwithstanding division (C) of this section, the	245
attorney general shall charge and collect fees from an applicant,	246
permittee, or prospective owner that is required to submit	247
information under this division in accordance with rules adopted	248
under section 109.5721 of the Revised Code. The fees shall not	249
exceed fees that are charged to any other person who is charged	250
fees for purposes of the database established under that section	251
and who is not an officer, director, partner, or key employee of	252
an applicant, permittee, or prospective owner under this section.	253

(F)(1) Every three years, the attorney general shall request	254
from the federal bureau of investigation any information regarding	255
a criminal conviction with respect to each officer, director,	256
partner, or key employee of an applicant, permittee, or	257
prospective owner. The attorney general may take any actions	258
necessary for purposes of this division, including, as necessary,	259
requesting the submission of any necessary documents authorizing	260
the release of information.	261

(2) Every three years, an applicant, permittee, or	262
prospective owner shall submit an affidavit listing all of the	263
following regarding a business concern required to be listed in	264
the applicant's, permittee's, or prospective owner's disclosure	265
statement:	266

(a) Any administrative enforcement order issued to the	267
business concern in connection with any violation of any federal	268
or state environmental protection laws, rules, or regulations	269
during the previous three-year period;	270

(b) Any civil action in which the business concern was	271
determined to be liable or was the subject of injunctive relief or	272
another type of civil relief in connection with any violation of	273
any federal or state environmental protection laws, rules, or	274
regulations during the previous three-year period;	275

(c) Any criminal conviction for a violation of any federal or	276
state environmental protection laws, rules, or regulations that	277
has been committed knowingly or recklessly by the business concern	278
during the previous three-year period.	279

(G) With respect to an applicant, permittee, or prospective	280
owner, the attorney general shall notify the director of	281
environmental protection of any crime ascertained under division	282
(E) or (F) of this section that is a disqualifying crime under	283
section 3734.44 of the Revised Code. The attorney general shall	284
provide the notification not later than thirty days after the	285
crime was ascertained.	286

(H) The failure to provide such information under this	287
section may constitute the basis for the revocation orof a permit	288
or license, the denial of a permit or license application, the	289
denial of a renewal of anya permit or license issued in	290
accordance with this chapter, provided that prior, or the	291
disapproval of a change in ownership as described in division (I)	292
of this section. Prior to any sucha denial or, revocation, or	293
disapproval, the director shall notify the applicant or,	294
permittee, or prospective owner of the director's intention to do	295
so and. The director shall give the applicant or, permittee, or	296
prospective owner fourteen days from the date of the notice to	297
explain why the information was not provided. The director shall	298
consider this information the explanation when determining	299
whether to revoke or deny the permit or license, deny the permit	300
or license application or renewal, or disapprove the change in	301
ownership.	302

Nothing in this divisionsection affects the rights of the	303
director or the attorney general granted under sections 3734.40 to	304
3734.47 of the Revised Code to request information from a person	305
at any other time.	306

(E)(1) Except as otherwise provided in division (E)(2) of	307
this section, every permittee who is not otherwise required to	308
file a disclosure statement shall file a disclosure statement	309
within five years after June 24, 1988, pursuant to a schedule for	310
submissions of disclosure statements developed by the attorney	311
general. The schedule shall provide all permittees and holders of	312
a license with at least one hundred eighty days' notice prior to	313
the date upon which the statement is to be submitted. All other	314
terms of the schedule shall be established at the discretion of	315
the attorney general and shall not be subject to judicial review.	316

(2) An applicant for a permit for an off-site solid waste	317
facility that is a scrap tire storage, monocell, monofill, or	318
recovery facility issued under section 3734.76, 3734.77, or	319
3734.78 of the Revised Code, as applicable, shall file a	320
disclosure statement within five years after October 29, 1993,	321
pursuant to a schedule for submissions of disclosure statements	322
developed by the attorney general. The schedule shall provide all	323
such applicants with at least one hundred eighty days' notice	324
prior to the date upon which the statement shall be submitted. All	325
other terms of the schedule shall be established at the discretion	326
of the attorney general and shall not be subject to judicial	327
review.	328

Beginning five years after October 29, 1993, an applicant for	329
such a permit shall file a disclosure statement in accordance with	330
division (A)(1) of this section.	331

(3) When a permittee submits a disclosure statement at the	332
time it submits an application for a renewal or modification of	333
its permit, the attorney general shall remove the permittee from	334
the submission schedule established pursuant to division (E)(1) or	335
(2) of this section.	336

(4) After receiving a disclosure statement under division	337
(E)(1) or (2) of this section, the attorney general shall prepare	338
an investigative report and transmit it to the director. The	339
director shall review the disclosure statement and investigative	340
report to determine whether the statement or report contains	341
information that if submitted with a permit application would	342
require a denial of the permit pursuant to section 3734.44 of the	343
Revised Code. If the director determines that the statement or	344
report contains such information, the director may revoke any	345
previously issued permit pursuant to section 3734.45 of the	346
Revised Code, or the director shall deny any application for a	347
renewal of a permit or license. When the renewal of the license is	348
being performed by a board of health, the director shall instruct	349
the board of health about those circumstances under which the	350
renewal is required to be denied by this section.	351

(F)(I)(1) Whenever there is a change in ownership of any	352
operating off-site solid waste facility, including incinerators,;	353
any operating transfer facility,; any operating off-site	354
infectious waste treatment facility,; or any operating off-site	355
hazardous waste treatment, storage, or disposal facility, the	356
prospective owner shall file a disclosure statement with the	357
attorney general and the director at least one hundred eighty days	358
prior to the proposed change in ownership. In addition, whenever	359
there is a change in ownership of any operating on-site solid	360
waste facility, including incinerators; any operating on-site	361
transfer facility; any operating on-site infectious waste	362
treatment facility; or any operating on-site hazardous waste	363
treatment, storage, or disposal facility and the prospective owner	364
intends to operate the facility as an off-site facility by	365
accepting wastes other than wastes generated by the facility	366
owner, the prospective owner shall file a disclosure statement	367
with the attorney general and the director. The prospective owner	368
shall file the disclosure statement at least one hundred eighty	369
days prior to the proposed change in ownership. Upon	370

Upon receipt of the disclosure statement, the attorney	371
general shall prepare an investigative report and transmit it to	372
the director. The director shall review the disclosure statement	373
and investigative report to determine whether the statement or	374
report contains information that if submitted with a permit	375
application would require a denial of the permit pursuant to	376
section 3734.44 of the Revised Code. If the director determines	377
that the statement or report contains such information, the	378
director shall disapprove the change in ownership.	379

(2) If the parties to a change in ownership decide to proceed	380
with the change prior to the action of the director on the	381
disclosure statement and investigative report, the parties shall	382
include in all contracts or other documents reflecting the change	383
in ownership language expressly making the change in ownership	384
subject to the approval of the director and expressly negating the	385
change if it is disapproved by the director pursuant to division	386
(F)(I)(1) of this section.	387

(3) As used in this section, "change in ownership" includes	388
anya change in the names, other than thoseof the individuals or	389
entities that own an off-site solid waste facility, off-site	390
infectious waste treatment facility, or off-site hazardous waste	391
treatment, storage, or disposal facility. "Change in ownership"	392
does not include a legal change in a business concern's name when	393
its ownership otherwise remains the same. "Change in ownership"	394
also does not include a personal name change of officers,	395
directors, partners, or key employees, contained in thea	396
disclosure statement.	397

Section 2. That existing sections 3734.41 and 3734.42 of the	398
Revised Code are hereby repealed.	399