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

129th General Assembly Regular Session 2011-2012

Sub. 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;	77

(7) A listing of any agency outside this state that has or	78
has had regulatory responsibility over the applicant in connection	79
with its collection, transfer, transportation, treatment, storage,	80
or disposal of solid wastes, infectious wastes, or hazardous waste	81
or processing of solid wastes that consist of scrap tires;	82

(8) Any other information the attorney general or the	83
director may require that relates to the competency, reliability,	84
or good character of the applicant.	85

(E) "Key employee" means any individual, other than a public	86
official or employee as defined in division (B) of section 102.01	87
of the Revised Code who is required to file a statement under	88
section 102.02 of the Revised Code, employed by the applicant or	89
the licensee in a supervisory capacity or empowered to make	90
discretionary decisions with respect to the solid waste,	91
infectious waste, or hazardous waste operations of the business	92
concern, but does not include any employee exclusively engaged in	93
the physical or mechanical collection, transfer, transportation,	94
treatment, storage, or disposal of solid wastes, infectious	95
wastes, or hazardous waste or processing of solid wastes that	96
consist of scrap tires. If the applicant or permittee has entered	97
into a contract with another person to operate the facility that	98
is the subject of the permit or license or application for a	99
permit or license, "key employee" also includes those employees of	100
the contractor who act in a supervisory capacity, or are empowered	101
to make discretionary decisions, with respect to the operation of	102
the solid, infectious, or hazardous waste facility. An officer or	103
director of a business concern required to file a disclosure	104
statement under section 3734.42 of the Revised Code who meets the	105
definition of "key employee" shall be considered a key employee	106
for purposes of the filing and disclosure requirements of sections	107
3734.42 to 3734.47 of the Revised Code.	108

(F) "License" means the annual license required by section	109
3734.05 of the Revised Code for an off-site solid waste disposal	110
or transfer facility or an off-site infectious waste treatment	111
facility.	112

(G) "Off-site facility" means a facility that is located off	113
the premises where the solid wastes, infectious wastes, or	114
hazardous waste is generated, but does not include any such	115
facility that exclusively disposes of wastes that are generated	116
from the combustion of coal, or from the combustion of primarily	117
coal in combination with scrap tires, that is not combined in any	118
way with garbage or any such facility that is owned and operated	119
by the generator of the waste and that exclusively stores,	120
processes, or disposes of or transfers solid wastes, exclusively	121
treats infectious wastes, or exclusively disposes of hazardous	122
waste, generated at one or more premises owned by the generator.	123

(H) "Permit" means a permit to install and any subsequent	124
modifications for an off-site solid waste disposal facility,	125
including an incineration facility, or transfer facility, issued	126
under section 3734.05 of the Revised Code; a permit to install and	127
any subsequent modifications for an off-site solid waste facility	128
that is a scrap tire storage, monocell, monofill, or recovery	129
facility issued under section 3734.76, 3734.77, or 3734.78 of the	130
Revised Code, as applicable; a permit to install and any	131
subsequent modifications for an off-site infectious waste	132
treatment facility issued under section 3734.05 of the Revised	133
Code; and a permit to install and operate an off-site hazardous	134
waste treatment, storage, or disposal facility and the	135
modification or renewal of a hazardous waste permit for the	136
treatment, storage, or disposal of hazardous waste issued under	137
section 3734.05 of the Revised Code.	138

(I) "Permittee" means any person who has received a permit or	139
license for an off-site facility.	140

Sec. 3734.42.  (A)(1) Except as otherwise provided in	141
division (E)(2) of this section, everyEvery applicant for a	142
permit other than a permit modification or renewal shall file a	143
disclosure statement, on a form developed by the attorney general,	144
with the director of environmental protection and the attorney	145
general at the same time the applicant files an application for a	146
permit other than a permit modification or renewal with the	147
director.	148

(2) Any individual required to be listed in the disclosure	149
statement shall be fingerprinted for identification and	150
investigation purposes in accordance with procedures established	151
by the attorney general. An individual required to be	152
fingerprinted under this section shall not be required to be	153
fingerprinted more than once under this section.	154

(3) The attorney general, within one hundred eighty days	155
after receipt of the disclosure statement from an applicant for a	156
permit, shall prepare and transmit to the director an	157
investigative report on the applicant, based in part upon the	158
disclosure statement, except that this deadline may be extended	159
for a reasonable period of time, for good cause, by the director	160
or the attorney general. In preparing this report, the attorney	161
general may request and receive criminal history information from	162
the federal bureau of investigation and any other law enforcement	163
agency or organization. The attorney general may provide such	164
confidentiality regarding the information received from a law	165
enforcement agency as may be imposed by that agency as a condition	166
for providing that information to the attorney general.	167

(4) The review of the application by the director shall	168
include a review of the disclosure statement and investigative	169
report.	170

(B) All applicants and permittees shall provide any	171
assistance or information requested by the director or the	172
attorney general and shall cooperate in any inquiry or	173
investigation conducted by the attorney general and any inquiry,	174
investigation, or hearing conducted by the director. If, upon	175
issuance of a formal request to answer any inquiry or produce	176
information, evidence, or testimony, any applicant or permittee,	177
any officer, director, or partner of any business concern, or any	178
key employee of the applicant or permittee refuses to comply, the	179
permit of the applicant or permittee may be denied or revoked by	180
the director.	181

(C) The attorney general may charge and collect such fees	182
from applicants and permittees as are necessary to cover the costs	183
of administering and enforcing the investigative procedures	184
authorized in sections 3734.41 to 3734.47 of the Revised Code. The	185
attorney general shall transmit moneys collected under this	186
division to the treasurer of state to be credited to the solid and	187
hazardous waste background investigations fund, which is hereby	188
created in the state treasury. Moneys in the fund shall be used	189
solely for paying the attorney general's costs of administering	190
and enforcing the investigative procedures authorized in sections	191
3734.41 to 3734.47 of the Revised Code.	192

(D) Annually on the anniversary date of the submission to the	193
director by the attorney general of the investigative report for a	194
specific facility, or annually on another date assigned by the	195
attorney general, theAn appropriate applicant, a permittee, or a	196
prospective owner shall submit to the attorney general, on a form	197
provided by the attorney general, any and all information required	198
to be included in a disclosure statement that has changed or been	199
added in the immediately preceding year. If, in the immediately	200
preceding year, there have been no changes in or additions to the	201
information required to be included in a disclosure statement, the	202
appropriate applicant, permittee, or prospective owner shall	203
submit to the attorney general an affidavit stating that there	204
have been no changes in or additions to that information during	205
that time period.	206

Notwithstanding the requirement for an annual submission of	207
information, the following information shall be submitted within	208
the periods specified:	209

(1) Information required to be included in the disclosure	210
statement for any new officer, director, partner, or key employee,	211
to be submitted within ninety days from the addition of the	212
officer, director, partner, or key employee;	213

(2) Information required to be included in a disclosure	214
statement forregarding the addition of any new business concern,	215
to be submitted within ninety days from the addition of the new	216
business concern;	217

(3) Information regarding any new criminal conviction, to be	218
submitted within ninety days from the judgment entry of	219
conviction.	220

(E)(1) The attorney general shall enter in the database	221
established under section 109.5721 of the Revised Code the name,	222
the fingerprints, and other relevant information concerning each	223
officer, director, partner, or key employee of an applicant,	224
permittee, or prospective owner.	225

(2) For purposes of section 109.5721 of the Revised Code,	226
annually on a date assigned by the attorney general, an applicant,	227
permittee, or prospective owner shall provide the attorney general	228
with a list of both of the following:	229

(a) Each officer, director, partner, or key employee of the	230
applicant, permittee, or prospective owner and the person's	231
address and social security number;	232

(b) Any officer, director, partner, or key employee of the	233
applicant, permittee, or prospective owner who has left a position	234
previously held with the applicant, permittee, or prospective	235
owner during the previous one-year period and the person's social	236
security number.	237

(3) Annually, the attorney general shall update the database	238
established under section 109.5721 of the Revised Code to reflect	239
the information provided by an applicant, permittee, or	240
prospective owner under divisions (E)(2)(a) and (b) of this	241
section.	242

(4) Notwithstanding division (C) of this section, the	243
attorney general shall charge and collect fees from an applicant,	244
permittee, or prospective owner that is required to submit	245
information under this division in accordance with rules adopted	246
under section 109.5721 of the Revised Code. The fees shall not	247
exceed fees that are charged to any other person who is charged	248
fees for purposes of the database established under that section	249
and who is not an officer, director, partner, or key employee of	250
an applicant, permittee, or prospective owner under this section.	251

(F)(1) Every three years, the attorney general shall request	252
from the federal bureau of investigation any information regarding	253
a criminal conviction with respect to each officer, director,	254
partner, or key employee of an applicant, permittee, or	255
prospective owner. The attorney general may take any actions	256
necessary for purposes of this division, including, as necessary,	257
requesting the submission of any necessary documents authorizing	258
the release of information.	259

(2) Every three years, an applicant, permittee, or	260
prospective owner shall submit an affidavit listing all of the	261
following regarding a business concern required to be listed in	262
the applicant's, permittee's, or prospective owner's disclosure	263
statement:	264

(a) Any administrative enforcement order issued to the	265
business concern in connection with any violation of any federal	266
or state environmental protection laws, rules, or regulations	267
during the previous three-year period;	268

(b) Any civil action in which the business concern was	269
determined to be liable or was the subject of injunctive relief or	270
another type of civil relief in connection with any violation of	271
any federal or state environmental protection laws, rules, or	272
regulations during the previous three-year period;	273

(c) Any criminal conviction for a violation of any federal or	274
state environmental protection laws, rules, or regulations that	275
has been committed knowingly or recklessly by the business concern	276
during the previous three-year period.	277

(G) With respect to an applicant, permittee, or prospective	278
owner, the attorney general shall notify the director of	279
environmental protection of any crime ascertained under division	280
(E) or (F) of this section that is a disqualifying crime under	281
section 3734.44 of the Revised Code. The attorney general shall	282
provide the notification not later than thirty days after the	283
crime was ascertained.	284

(H) The failure to provide such information under this	285
section may constitute the basis for the revocation orof a permit	286
or license, the denial of a permit or license application, the	287
denial of a renewal of anya permit or license issued in	288
accordance with this chapter, provided that prior, or the	289
disapproval of a change in ownership as described in division (I)	290
of this section. Prior to any sucha denial or, revocation, or	291
disapproval, the director shall notify the applicant or,	292
permittee, or prospective owner of the director's intention to do	293
so and. The director shall give the applicant or, permittee, or	294
prospective owner fourteen days from the date of the notice to	295
explain why the information was not provided. The director shall	296
consider this information the explanation when determining	297
whether to revoke or deny the permit or license, deny the permit	298
or license application or renewal, or disapprove the change in	299
ownership.	300

Nothing in this divisionsection affects the rights of the	301
director or the attorney general granted under sections 3734.40 to	302
3734.47 of the Revised Code to request information from a person	303
at any other time.	304

(E)(1) Except as otherwise provided in division (E)(2) of	305
this section, every permittee who is not otherwise required to	306
file a disclosure statement shall file a disclosure statement	307
within five years after June 24, 1988, pursuant to a schedule for	308
submissions of disclosure statements developed by the attorney	309
general. The schedule shall provide all permittees and holders of	310
a license with at least one hundred eighty days' notice prior to	311
the date upon which the statement is to be submitted. All other	312
terms of the schedule shall be established at the discretion of	313
the attorney general and shall not be subject to judicial review.	314

(2) An applicant for a permit for an off-site solid waste	315
facility that is a scrap tire storage, monocell, monofill, or	316
recovery facility issued under section 3734.76, 3734.77, or	317
3734.78 of the Revised Code, as applicable, shall file a	318
disclosure statement within five years after October 29, 1993,	319
pursuant to a schedule for submissions of disclosure statements	320
developed by the attorney general. The schedule shall provide all	321
such applicants with at least one hundred eighty days' notice	322
prior to the date upon which the statement shall be submitted. All	323
other terms of the schedule shall be established at the discretion	324
of the attorney general and shall not be subject to judicial	325
review.	326

Beginning five years after October 29, 1993, an applicant for	327
such a permit shall file a disclosure statement in accordance with	328
division (A)(1) of this section.	329

(3) When a permittee submits a disclosure statement at the	330
time it submits an application for a renewal or modification of	331
its permit, the attorney general shall remove the permittee from	332
the submission schedule established pursuant to division (E)(1) or	333
(2) of this section.	334

(4) After receiving a disclosure statement under division	335
(E)(1) or (2) of this section, the attorney general shall prepare	336
an investigative report and transmit it to the director. The	337
director shall review the disclosure statement and investigative	338
report to determine whether the statement or report contains	339
information that if submitted with a permit application would	340
require a denial of the permit pursuant to section 3734.44 of the	341
Revised Code. If the director determines that the statement or	342
report contains such information, the director may revoke any	343
previously issued permit pursuant to section 3734.45 of the	344
Revised Code, or the director shall deny any application for a	345
renewal of a permit or license. When the renewal of the license is	346
being performed by a board of health, the director shall instruct	347
the board of health about those circumstances under which the	348
renewal is required to be denied by this section.	349

(F)(I)(1) Whenever there is a change in ownership of any	350
operating off-site solid waste facility, including incinerators,	351
any transfer facility, any operating off-site infectious waste	352
treatment facility, or any operating off-site hazardous waste	353
treatment, storage, or disposal facility, the prospective owner	354
shall file a disclosure statement with the attorney general and	355
the director at least one hundred eighty days prior to the	356
proposed change in ownership. In addition, whenever there is a	357
change in ownership of any operating on-site solid waste facility,	358
any operating on-site infectious waste facility, or any operating	359
on-site hazardous waste facility and the prospective owner intends	360
to operate the facility as an off-site facility by accepting	361
wastes other than wastes generated by the facility owner, the	362
prospective owner shall file a disclosure statement with the	363
attorney general and the director. The prospective owner shall	364
file the disclosure statement at least one hundred eighty days	365
prior to the proposed change in ownership. Upon	366

Upon receipt of the disclosure statement, the attorney	367
general shall prepare an investigative report and transmit it to	368
the director. The director shall review the disclosure statement	369
and investigative report to determine whether the statement or	370
report contains information that if submitted with a permit	371
application would require a denial of the permit pursuant to	372
section 3734.44 of the Revised Code. If the director determines	373
that the statement or report contains such information, the	374
director shall disapprove the change in ownership.	375

(2) If the parties to a change in ownership decide to proceed	376
with the change prior to the action of the director on the	377
disclosure statement and investigative report, the parties shall	378
include in all contracts or other documents reflecting the change	379
in ownership language expressly making the change in ownership	380
subject to the approval of the director and expressly negating the	381
change if it is disapproved by the director pursuant to division	382
(F)(I)(1) of this section.	383

(3) As used in this section, "change in ownership" includes	384
anya change in the names, other than thoseof the individuals or	385
entities who own a solid waste facility, infectious waste	386
facility, or hazardous waste facility. "Change in ownership" does	387
not include a legal change in a business concern's name when its	388
ownership otherwise remains the same. "Change in ownership" also	389
does not include a personal name change of officers, directors,	390
partners, or key employees, contained in thea disclosure	391
statement.	392

Section 2. That existing sections 3734.41 and 3734.42 of the	393
Revised Code are hereby repealed.	394