130th Ohio General Assembly
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Sub. H. B. No. 432As Reported by the House Energy and Environment Committee
As Reported by the House Energy and Environment Committee

125th General Assembly
Regular Session
2003-2004
Sub. H. B. No. 432


REPRESENTATIVES Webster, McGregor, Wolpert, Niehaus, Aslanides, Setzer



A BILL
To amend sections 3714.01 and 3714.09, to enact new section 3714.07 and section 3714.021, and to repeal section 3714.07 of the Revised Code to replace the construction and demolition debris facility license fee with a fee on the disposal of construction and demolition debris at construction and demolition debris facilities and solid waste facilities, and to revise the definition of "construction and demolition debris."

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 3714.01 and 3714.09 be amended and new section 3714.07 and section 3714.021 of the Revised Code be enacted to read as follows:
Sec. 3714.01.  As used in this chapter:
(A) "Board of health" means the board of health of a city or general health district or the authority having the duties of a board of health in any city as authorized by section 3709.05 of the Revised Code.
(B) "Closure" means either the time at which a construction and demolition debris facility will no longer accept construction and demolition debris for disposal or the effective date of an order revoking the license of the facility. The term "Closure" includes measures performed to protect public health or safety, to prevent air or water pollution, or to make the facility suitable for other uses, if any, including, without limitation, the establishment and maintenance of suitable cover of soil and vegetation over areas where construction and demolition debris is buried and the minimization of erosion, the infiltration of surface water into such areas, the production of leachate, and the accumulation and runoff of contaminated surface water.
(C) "Construction and demolition debris" means those materials resulting from the alteration, construction, destruction, rehabilitation, or repair of any manmade physical structure that is built by humans, including, without limitation, houses, buildings, industrial or commercial facilities, or roadways. "Construction and demolition debris" includes particles and dust created during demolition activities and through transport. "Construction and demolition debris" does not include materials identified or listed as solid wastes or hazardous waste pursuant to Chapter 3734. of the Revised Code and rules adopted under it; materials from mining operations, nontoxic fly ash, spent nontoxic foundry sand, and slag; or reinforced or nonreinforced concrete, asphalt, building or paving brick, or building or paving stone that is stored for a period of less than two years for recycling into a usable construction material.
(D) "Disposal" means the discharge, deposit, injection, dumping, spilling, leaking, emitting, or placing of any construction and demolition debris into or on any land or ground or surface water or into the air, except if the disposition or placement constitutes storage.
(E) "Facility" means any site, location, tract of land, installation, or building used for the disposal of construction and demolition debris. "Facility" does not include any construction site where construction debris and trees and brush removed in clearing the construction site are used as fill material on the site where the materials are generated or removed and does not include any site where materials composed exclusively of reinforced or nonreinforced concrete, asphalt, clay tile, building or paving brick, or building or paving stone are used as fill material, either alone or in conjunction with clean soil, sand, gravel, or other clean aggregates, in legitimate fill operations for construction purposes or to bring the site up to a consistent grade.
(F) "Health district" means a city or general health district created by or under the authority of Chapter 3709. of the Revised Code.
(G) "Person" includes the state, any political subdivision of the state or other state or local body, the United States and any agency or instrumentality thereof, and any legal entity or organization defined as a person under section 1.59 of the Revised Code.
(H) "Storage" means the holding of construction and demolition debris for a temporary period in such a manner that it remains retrievable and substantially unchanged and, at the end of the period, is disposed of or reused or recycled in a beneficial manner.
Sec. 3714.021. (A) As used in this section, "working face" means the portion of a construction and demolition debris facility where construction and demolition debris is placed for final disposal.
(B) The owner or operator of a construction and demolition debris facility that is licensed under this chapter shall attempt to remove all solid wastes from construction and demolition debris prior to the disposal of the construction and demolition debris on the working face of the facility. Except as otherwise provided in this division, the existence of solid wastes on the working face of a construction and demolition debris facility does not constitute a violation of this chapter and rules adopted under it if either of the following applies:
(1) The wastes constitute not more than two cubic yards per one thousand cubic yards of construction and demolition debris or four cubic yards per one thousand tons of construction and demolition debris disposed of at the construction and demolition debris facility based on the amount of construction and demolition debris disposed of at the facility on the preceding full business day as determined by using the amount of disposal fees collected under section 3714.07 of the Revised Code for wastes disposed of at the facility on that preceding full business day.
(2) The owner or operator or the employees of the facility remove the solid wastes from the working face of the facility.
The existence of solid wastes on the working face of a construction and demolition debris facility that is located within the boundaries of a sole source aquifer as described in division (B) of section 3714.03 of the Revised Code constitutes a violation of this chapter and rules adopted under it.
(C) The board of health of the health district in which a construction and demolition debris facility is located, the director of environmental protection, or an authorized representative of either may request the removal of specific, visible solid wastes that are located on the working face of a construction and demolition debris facility. The owner or operator or the employees of the facility shall remove those solid wastes if so requested.
Sec. 3714.07.  (A)(1) For the purpose of assisting boards of health and the environmental protection agency in administering and enforcing this chapter and rules adopted under it, there is hereby levied on the disposal of construction and demolition debris at a construction and demolition debris facility that is licensed under this chapter or at a solid waste facility that is licensed under Chapter 3734. of the Revised Code a fee of thirty cents per cubic yard or sixty cents per ton, as applicable.
(2) If construction and demolition debris is disposed of at a construction and demolition debris facility, the owner or operator of the facility shall determine if cubic yards or tons will be used as the unit of measurement. In estimating the fee based on cubic yards, the owner or operator shall utilize either the maximum cubic yard capacity of the container, or the hauling volume of the vehicle, that transports the construction and demolition debris to the facility or the cubic yards actually logged for disposal by the owner or operator in accordance with rules adopted under section 3714.02 of the Revised Code. If basing the fee on tonnage, the owner or operator shall use certified scales to determine the tonnage of construction and demolition debris that is transported to the facility for disposal.
(3) If construction and demolition debris is disposed of at a solid waste facility, the owner or operator of the facility shall assess the fee on a per cubic yard or per ton basis as designated in the solid waste management plan of the solid waste management district in which the facility is located for the collection of the district's solid waste disposal fee pursuant to division (B) of section 3734.57 of the Revised Code.
(4) The owner or operator of a construction and demolition debris facility or a solid waste facility shall collect the fee levied under division (A) of this section as a trustee for the health district having jurisdiction over the facility, if that district is on the approved list under section 3714.09 of the Revised Code, or for the state. The owner or operator shall prepare and file with the appropriate board of health or the director of environmental protection monthly returns indicating the total volume or weight, as applicable, of construction and demolition debris received for disposal at the facility and the total amount of money required to be collected on the construction and demolition debris disposed of during that month. Not later than thirty days after the last day of the month to which the return applies, the owner or operator shall mail to the board of health or the director the return for that month together with the money required to be collected on the construction and demolition debris disposed of during that month. The owner or operator may request, in writing, an extension of not more than thirty days after the last day of the month to which the return applies. A request for extension may be denied. If the owner or operator submits the money late, the owner or operator shall pay a penalty of ten per cent of the amount of the money due for each month that it is late.
(5) Of the money that is collected from a construction and demolition debris facility or a solid waste facility on a per cubic yard or per ton basis under this section, a board of health shall transmit three cents per cubic yard or six cents per ton, as applicable, to the director not later than forty-five days after the receipt of the money. The money retained by a board of health under this section shall be paid into a special fund, which is hereby created in each health district, and used solely to administer and enforce this chapter and rules adopted under it.
The director shall transmit all money received from the boards of health of health districts under this section and all money from the disposal fee collected by the director under this section to the treasurer of state to be credited to the construction and demolition debris facility oversight fund, which is hereby created in the state treasury. The fund shall be administered by the director, and money credited to the fund shall be used exclusively for the administration and enforcement of this chapter and rules adopted under it.
(B) The board of health of a health district or the director may enter into an agreement with the owner or operator of a construction and demolition debris facility or a solid waste facility for the quarterly payment of the money collected from the disposal fee. The board of health shall notify the director of any such agreement. Not later than forty-five days after receipt of the quarterly payment, the board of health shall transmit the amount established in division (A)(5) of this section to the director. The money retained by the board of health shall be deposited in the special fund of the district as required under that division. Upon receipt of the money from a board of health, the director shall transmit the money to the treasurer of state to be credited to the construction and demolition debris facility oversight fund.
(C) If a construction and demolition debris facility or a solid waste facility is located within the territorial boundaries of a municipal corporation or the unincorporated area of a township, the municipal corporation or township may appropriate up to four cents per cubic yard or up to eight cents per ton of the disposal fee required to be paid by the facility under division (A) of this section for the same purposes that a municipal corporation or township may levy a fee under division (C) of section 3734.57 of the Revised Code.
The legislative authority of the municipal corporation or township may appropriate the money from the fee by enacting an ordinance or adopting a resolution establishing the amount of the fee to be appropriated. Upon doing so, the legislative authority shall mail a certified copy of the ordinance or resolution to the board of health of the health district in which the construction and demolition debris facility or the solid waste facility is located or, if the facility is located in a health district that is not on the approved list under section 3714.09 of the Revised Code, to the director. Upon receipt of the copy of the ordinance or resolution and not later than forty-five days after receipt of money collected from the fee, the board or the director, as applicable, shall transmit to the treasurer or other appropriate officer of the municipal corporation or clerk of the township that portion of the money collected from the disposal fee by the owner or operator of the facility that is required by the ordinance or resolution to be paid to that municipal corporation or township.
Money received by the treasurer or other appropriate officer of a municipal corporation under this division shall be paid into the general fund of the municipal corporation. Money received by the clerk of a township under this division shall be paid into the general fund of the township. The treasurer or other officer of the municipal corporation or the clerk of the township, as appropriate, shall maintain separate records of the money received under this division.
The legislative authority of a municipal corporation or township may cease collecting money under this division by repealing the ordinance or resolution that was enacted or adopted under this division.
(D) The board of county commissioners of a county in which a construction and demolition debris facility or a solid waste facility is located may appropriate up to three cents per cubic yard or up to six cents per ton of the disposal fee required to be paid by the facility under division (A) of this section for the same purposes that a solid waste management district may levy a fee under division (B) of section 3734.57 of the Revised Code.
The board of county commissioners may appropriate the money from the fee by adopting a resolution establishing the amount of the fee to be appropriated. Upon doing so, the board of county commissioners shall mail a certified copy of the resolution to the board of health of the health district in which the construction and demolition debris facility or the solid waste facility is located or, if the facility is located in a health district that is not on the approved list under section 3714.09 of the Revised Code, to the director. Upon receipt of the copy of the resolution and not later than forty-five days after receipt of money collected from the fee, the board of health or the director, as applicable, shall transmit to the treasurer of the county that portion of the money collected from the disposal fee by the owner or operator of the facility that is required by the resolution to be paid to that county.
Money received by a county treasurer under this division shall be paid into the general fund of the county. The county treasurer shall maintain separate records of the money received under this division.
A board of county commissioners may cease collecting money under this division by repealing the resolution that was adopted under this division.
(E)(1) This section does not apply to the disposal of construction and demolition debris at a solid waste facility that is licensed under Chapter 3734. of the Revised Code if there is no construction and demolition debris facility licensed under this chapter within forty miles of the solid waste facility as determined by a facility's property boundaries.
(2) This section does not apply to the disposal of construction and demolition debris at a solid waste facility that is licensed under Chapter 3734. of the Revised Code if the owner or operator of the facility collects fees under that chapter on the disposal of the construction and demolition debris.
Sec. 3714.09.  (A) The director of environmental protection shall place each health district that is on the approved list under division (A) or (B) of section 3734.08 of the Revised Code on the approved list for the purposes of issuing licenses under section 3714.06 of the Revised Code. Any survey or resurvey of any such health district conducted under section 3734.08 of the Revised Code shall also determine whether there is substantial compliance with this chapter. If the director removes any such health district from the approved list under division (B) of that section, he the director shall also remove the health district from the approved list under this division and shall administer and enforce this chapter in the health district until the health district is placed on the approved list under division (B) of section 3734.08 of the Revised Code or division (B)(1) of this section.
(B)(1) Upon the request of the board of health of a health district that is not on the approved list under division (A) or (B) of section 3734.08 of the Revised Code, the director may place the board on the approved list for the purpose of licensing construction and demolition debris facilities under section 3714.06 of the Revised Code if he the director determines that the board is both capable of and willing to enforce all of the applicable requirements of this chapter and rules adopted under it.
(2) The director shall annually survey each health district on the approved list under division (B)(1) of this section to determine whether there is substantial compliance with this chapter and rules adopted under it. Upon determining that there is substantial compliance, the director shall place the health district on the approved list under that division. The director shall make a resurvey when in his the director's opinion a resurvey is necessary and shall remove from the approved list under division (B)(1) of this section any health district not substantially complying with this chapter and rules adopted under it.
(3) If, after a survey or resurvey is made under division (B)(2) of this section, the director determines that a health district is not eligible to be placed on the approved list or to continue on that list, he the director shall certify that fact to the board of health of the health district and shall administer and enforce this chapter and rules adopted under it in the health district until such time as the health district is placed on the approved list.
(4) Whenever the director is required to administer and enforce this chapter in any health district under division (A) or (B)(3) of this section, he the director is hereby vested with all of the authority and all the duties granted to or imposed upon a board of health under this chapter and rules adopted under it within the health district. All construction and demolition debris facility license disposal fees required to be paid to a board of health by section 3714.07 of the Revised Code and all such previous fees paid to the board, together with any money from construction and demolition debris facility license fees that were required to be paid to the board under section 3714.07 of the Revised Code as that section existed prior to the effective date of this amendment, that have not been expended or encumbered shall be paid to the director and by him deposited by the director to the credit of the construction and demolition debris facility oversight fund created in section 3714.07 of the Revised Code.
(C) Nothing in this chapter limits the authority of the director to initiate and pursue any administrative remedy or to request the attorney general, the prosecuting attorney of the appropriate county, or the city director of law of the appropriate city to initiate and pursue any appropriate judicial remedy available under this chapter to enforce any provision of this chapter and any rules or terms or conditions of any license or order adopted or issued under this chapter with respect to any construction and demolition debris facility regardless of whether the facility is located in a health district that is on the approved list under division (A) or (B)(1) or (2) of this section.
Section 2. That existing sections 3714.01 and 3714.09 and section 3714.07 of the Revised Code are hereby repealed.
Section 3. The Construction and Demolition Debris Facility Oversight Fund that is created in section 3714.07 of the Revised Code, as enacted by this act, is a continuation of the Construction and Demolition Debris Facility Oversight Fund that was created in section 3714.07 of the Revised Code, as repealed by this act. Money credited to the Fund under former section 3714.07 of the Revised Code shall be used for the purposes specified in section 3714.07 of the Revised Code, as enacted by this act.
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