The online versions of legislation provided on this website are not official. Enrolled bills are the final version passed by the Ohio General Assembly and presented to the Governor for signature. The official version of acts signed by the Governor are available from the Secretary of State's Office in the Continental Plaza, 180 East Broad St., Columbus.
|
H. B. No. 516As IntroducedAs Introduced
125th General Assembly | Regular Session | 2003-2004 |
| |
REPRESENTATIVES Seitz, McGregor
A BILL
To amend sections 123.01, 317.08, 3734.22, 3734.24 to 3734.26, 3745.01, 3746.04, 3746.10, and 3746.14 and to enact sections 5301.80 to 5301.92 of the Revised Code to establish environmental covenants as an interest in real property generally arising under an environmental remediation or mitigation project that imposes activity and use limitations on the property, to require the recording of such covenants, and to establish other requirements regarding environmental covenants.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 123.01, 317.08, 3734.22, 3734.24, 3734.25, 3734.26, 3745.01, 3746.04, 3746.10, and 3746.14 be amended and sections 5301.80, 5301.81, 5301.82, 5301.83, 5301.84, 5301.85, 5301.86, 5301.87, 5301.88, 5301.89, 5301.90, 5301.91, and 5301.92 of the Revised Code be enacted to read as follows:
Sec. 123.01. (A) The department of administrative
services, in addition to those powers enumerated in Chapters 124.
and 125. of the Revised Code and provided elsewhere by law,
shall exercise the following powers: (1) To prepare, or contract to be prepared, by licensed
engineers or architects, surveys, general and detailed plans,
specifications, bills of materials, and estimates of cost for any
projects, improvements, or public buildings to be constructed by
state agencies that may be authorized by legislative
appropriations or any other funds made available therefor,
provided that the construction of the projects, improvements, or
public buildings is a statutory duty of the department. This
section does not require the independent employment of an
architect or engineer as provided by section 153.01 of the
Revised Code in the cases to which that section applies nor
affect or alter the existing powers of the director of
transportation. (2) To have general supervision over the construction of
any projects, improvements, or public buildings constructed for a
state agency and over the inspection of materials previous to
their incorporation into those projects, improvements, or
buildings; (3) To make contracts for and supervise the construction
of any projects and improvements or the construction and repair
of buildings under the control of a state agency, except
contracts for the repair of buildings under the management and
control of the departments of public safety, job and
family services,
mental health, mental retardation and developmental disabilities,
rehabilitation and correction, and youth services, the bureau of
workers' compensation, the
rehabilitation
services commission, and boards of trustees of educational and
benevolent institutions. These contracts shall be made and
entered into by the directors of public safety, job and
family services,
mental health, mental retardation and developmental disabilities,
rehabilitation and correction, and youth services, the
administrator of workers' compensation, the rehabilitation services commission,
and the
boards of
trustees of such institutions, respectively. All such contracts
may be in whole or in part on unit price basis of maximum
estimated cost, with payment computed and made upon actual
quantities or units. (4) To prepare and suggest comprehensive plans for the
development of grounds and buildings under the control of a state
agency; (5) To acquire, by purchase, gift, devise, lease, or
grant, all real estate required by a state agency, in the
exercise of which power the department may exercise the power of
eminent domain, in the manner provided by sections 163.01 to
163.22 of the Revised Code; (6) To make and provide all plans, specifications, and
models for the construction and perfection of all systems of
sewerage, drainage, and plumbing for the state in connection with
buildings and grounds under the control of a state agency; (7) To erect, supervise, and maintain all public monuments
and memorials erected by the state, except where the supervision
and maintenance is otherwise provided by law; (8) To procure, by lease, storage accommodations for a
state agency; (9) To lease or grant easements or licenses for
unproductive and unused lands or other property under the control
of a state agency. Such leases, easements, or licenses shall be
granted for a period not to exceed fifteen years and shall be
executed for the state by the director of administrative services
and the governor and shall be approved as to form by the attorney
general, provided that leases, easements, or licenses may be
granted to any county, township, municipal corporation, port
authority, water or sewer district, school district, library
district, health district, park district, soil and water
conservation district, conservancy district, or other political
subdivision or taxing district, or any agency of the United
States government, for the exclusive use of that agency,
political subdivision, or taxing district, without any right of
sublease or assignment, for a period not to exceed fifteen years,
and provided that the director shall grant leases, easements, or
licenses of university land for periods not to exceed twenty-five
years for purposes approved by the respective university's board
of trustees wherein the uses are compatible with the uses and
needs of the university and may grant leases of university land
for periods not to exceed forty years for purposes approved by
the respective university's board of trustees pursuant to section
123.77 of the Revised Code. (10) To lease office space in buildings for the use of a
state agency; (11) To have general supervision and care of the
storerooms, offices, and buildings leased for the use of a state
agency; (12) To exercise general custodial care of all real
property of the state; (13) To assign and group together state offices in any
city in the state and to establish, in cooperation with the state
agencies involved, rules governing space requirements for office
or storage use; (14) To lease for a period not to exceed forty years,
pursuant to a contract providing for the construction thereof
under a lease-purchase plan, buildings, structures, and other
improvements for any public purpose, and, in conjunction
therewith, to grant leases, easements, or licenses for lands
under the control of a state agency for a period not to exceed
forty years. The lease-purchase plan shall provide that at the
end of the lease period, the buildings, structures, and related
improvements, together with the land on which they are situated,
shall become the property of the state without cost. (a) Whenever any building, structure, or other improvement
is to be so leased by a state agency, the department shall retain
either basic plans, specifications, bills of materials, and
estimates of cost with sufficient detail to afford bidders all
needed information or, alternatively, all of the following plans,
details, bills of materials, and specifications: (i) Full and accurate plans suitable for the use of
mechanics and other builders in the improvement; (ii) Details to scale and full sized, so drawn and
represented as to be easily understood; (iii) Accurate bills showing the exact quantity of
different kinds of material necessary to the construction; (iv) Definite and complete specifications of the work to
be performed, together with such directions as will enable a
competent mechanic or other builder to carry them out and afford
bidders all needed information; (v) A full and accurate estimate of each item of expense
and of the aggregate cost thereof. (b) The department shall give public notice, in such
newspaper, in such form, and with such phraseology as the
director of administrative services prescribes, published once
each week for four consecutive weeks, of the time when and place
where bids will be received for entering into an agreement to
lease to a state agency a building, structure, or other
improvement. The last publication shall be at least eight days
preceding the day for opening the bids. The bids shall contain
the terms upon which the builder would propose to lease the
building, structure, or other improvement to the state agency.
The form of the bid approved by the department shall be used, and
a bid is invalid and shall not be considered unless that form is
used without change, alteration, or addition. Before submitting
bids pursuant to this section, any builder shall comply with
Chapter 153. of the Revised Code. (c) On the day and at the place named for receiving bids
for entering into lease agreements with a state agency, the
director of administrative services shall open the bids and shall
publicly proceed immediately to tabulate the bids upon duplicate
sheets. No lease agreement shall be entered into until the
bureau of workers' compensation has certified that the person to
be awarded the lease agreement has complied with Chapter 4123. of
the Revised Code, until, if the builder submitting the lowest and
best bid is a foreign corporation, the secretary of state has
certified that the corporation is authorized to do business in
this state, until, if the builder submitting the lowest and best
bid is a person nonresident of this state, the person has filed
with the secretary of state a power of attorney designating the
secretary of state as its agent for the purpose of accepting
service of summons in any action brought under Chapter 4123. of
the Revised Code, and until the agreement is submitted to the
attorney general and the attorney general's approval is certified
thereon. Within
thirty days after the day on which the bids are received, the
department shall investigate the bids received and shall
determine that the bureau and the secretary of state have made
the certifications required by this section of the builder who
has submitted the lowest and best bid. Within ten days of the
completion of the investigation of the bids, the department shall
award the lease agreement to the builder who has submitted the
lowest and best bid and who has been certified by the bureau and
secretary of state as required by this section. If bidding for
the lease agreement has been conducted upon the basis of basic
plans, specifications, bills of materials, and estimates of
costs, upon the award to the builder the department, or the
builder with the approval of the department, shall appoint an
architect or engineer licensed in this state to prepare such
further detailed plans, specifications, and bills of materials as
are required to construct the building, structure, or
improvement. The department shall adopt such rules as are
necessary to give effect to this section. The department may
reject any bid. Where there is reason to believe there is
collusion or combination among bidders, the bids of those
concerned therein shall be rejected. (15) To acquire by purchase, gift, devise, or grant and to
transfer, lease, or otherwise dispose of all real property
required to assist in the development of a conversion facility as
defined in section 5709.30 of the Revised Code as that section existed before its repeal by H.B. Amended Substitute House Bill 95 of the 125th general assembly; (16) To lease for a period not to exceed forty years,
notwithstanding any other division of this section, the
state-owned property located at 408-450 East Town Street,
Columbus, Ohio, formerly the state school for the deaf, to a
developer in accordance with this section. "Developer," as used
in this section, has the same meaning as in section 123.77 of the
Revised Code. Such a lease shall be for the purpose of development of the
land for use by senior citizens by constructing, altering,
renovating, repairing, expanding, and improving the site as it
existed on June 25, 1982. A developer desiring to lease the land
shall prepare for submission to the department a plan for
development. Plans shall include provisions for roads, sewers,
water lines, waste disposal, water supply, and similar matters to
meet the requirements of state and local laws. The plans shall
also include provision for protection of the property by
insurance or otherwise, and plans for financing the development,
and shall set forth details of the developer's financial
responsibility. The department may employ, as employees or consultants,
persons needed to assist in reviewing the development plans.
Those persons may include attorneys, financial experts,
engineers, and other necessary experts. The department shall
review the development plans and may enter into a lease if it
finds all of the following: (a) The best interests of the state will be promoted by
entering into a lease with the developer; (b) The development plans are satisfactory; (c) The developer has established the developer's financial
responsibility and satisfactory plans for financing the
development. The lease shall contain a provision that construction or
renovation of the buildings, roads, structures, and other
necessary facilities shall begin within one year after the date
of the lease and shall proceed according to a schedule agreed to
between the department and the developer or the lease will be
terminated. The lease shall contain such conditions and
stipulations as the director considers necessary to preserve the
best interest of the state. Moneys received by the state
pursuant to this lease shall be paid into the general revenue
fund. The lease shall provide that at the end of the lease
period the buildings, structures, and related improvements shall
become the property of the state without cost. (17) To lease to any person any tract of land owned by the
state and under the control of the department, or any part of
such a tract, for the purpose of drilling for or the pooling of
oil or gas. Such a lease shall be granted for a period not
exceeding forty years, with the full power to contract for,
determine the conditions governing, and specify the amount the
state shall receive for the purposes specified in the lease, and
shall be prepared as in other cases.
(18) To manage the use of space owned and controlled by the department, including space in property under the jurisdiction of the Ohio building authority, by doing all of the following: (a) Biennially implementing, by state agency location, a census of agency employees assigned space; (b) Periodically in the discretion of the director of administrative services: (i) Requiring each state agency to categorize the use of space allotted to the agency between office space, common areas, storage space, and other uses, and to report its findings to the department;
(ii) Creating and updating a master space utilization plan for all space allotted to state agencies. The plan shall incorporate space utilization metrics. (iii) Conducting a cost-benefit analysis to determine the effectiveness of state-owned buildings; (iv) Assessing the alternatives associated with consolidating the commercial leases for buildings located in Columbus. (c) Commissioning a comprehensive space utilization and capacity study in order to determine the feasibility of consolidating existing commercially leased space used by state agencies into a new state-owned facility. (B) This section and section 125.02 of the Revised Code
shall not interfere with any of the following: (1) The power of the adjutant general to purchase military
supplies, or with the custody of the adjutant general of property
leased, purchased, or constructed by the state and used for
military purposes, or with the functions of the adjutant general
as director of state armories; (2) The power of the director of transportation in
acquiring rights-of-way for the state highway system, or the
leasing of lands for division or resident district offices, or
the leasing of lands or buildings required in the maintenance
operations of the department of transportation, or the purchase of
real property
for garage sites or division or resident district offices, or in
preparing plans and specifications for and constructing such
buildings as the director may require in the administration of
the department; (3) The power of the director of public safety and the
registrar of motor vehicles to purchase or lease real property
and buildings to be used solely as locations to which a deputy
registrar is assigned pursuant to division (B) of section
4507.011 of the Revised Code and from which the deputy registrar is
to conduct the deputy registrar's business, the power of the director of
public safety to purchase or lease real property and buildings to be used as
locations for division or district offices as required in the maintenance of
operations of the department of public safety, and the power of the
superintendent of the state
highway patrol in the purchase or leasing of real property and
buildings needed by the patrol, to negotiate the sale of real property owned
by the patrol, to rent or lease real property owned or leased by the patrol,
and to make or cause to be made repairs to all property owned or under the
control of the patrol; (4) The power of the division of liquor control in the
leasing or purchasing of retail outlets and warehouse facilities
for the use of the division; (5) The power of the director of development to enter into leases
of real property, buildings, and office space to be used solely as locations
for the state's foreign offices to carry out the purposes of section 122.05
of the Revised Code; (6) The power of the director of environmental protection to enter into environmental covenants, to grant and accept easements, or to sell property pursuant to division (G) of section 3745.01 of the Revised Code. (C) Purchases for, and the custody and repair of,
buildings under the management and control of the capitol square
review and advisory board, the rehabilitation services commission, the bureau of
workers' compensation, or the
departments of public safety,
job and family services, mental health, mental retardation
and
developmental disabilities, and rehabilitation and correction,
and buildings of educational and benevolent institutions under
the management and control of boards of trustees, are not subject
to the control and jurisdiction of the department of
administrative services. (D) Any instrument by which real property is acquired pursuant to
this section
shall identify the agency of the state that has the use and benefit of the
real property as specified in section 5301.012 of the Revised Code.
Sec. 317.08. (A) Except as provided in
divisions
(C) and (D) of this
section, the county recorder shall keep
six
separate sets
of
records as follows: (1) A record of deeds, in which shall be recorded all
deeds
and other instruments of writing for the absolute and
unconditional sale or conveyance of lands, tenements, and
hereditaments; all notices as provided in sections 5301.47 to
5301.56 of the Revised Code; all judgments or decrees in actions
brought under section 5303.01 of the Revised Code; all
declarations and bylaws, and all amendments to declarations and
bylaws, as provided in Chapter 5311. of the
Revised Code;
affidavits as provided
in section 5301.252 of
the Revised
Code; all certificates as provided
in section
5311.17 of the
Revised Code; all articles dedicating
archaeological preserves
accepted by the director of the Ohio
historical society under
section 149.52 of the Revised Code; all
articles dedicating nature
preserves accepted by the director of
natural resources under
section 1517.05 of the Revised Code; all
agreements for the
registration of lands as archaeological or
historic landmarks
under section 149.51 or 149.55 of the Revised
Code; all
conveyances of conservation easements and agricultural
easements
under section
5301.68 of the Revised Code; all
instruments
extinguishing agricultural
easements under section
901.21 or
5301.691 of the Revised Code or pursuant to
terms of
such an
easement granted to a charitable organization under
section
5301.68 of the Revised Code; all instruments or orders
described
in division (B)(1)(c)(ii) of section 5301.56 of the
Revised Code;
all no further action letters issued under section
122.654 or
3746.11 of the
Revised Code;
all covenants not to sue
issued under
section
3746.12 of the
Revised Code, including all
covenants
not
to sue issued pursuant to section 122.654 of the
Revised Code;
any
restrictions on the use of property contained in
a no further
action letter issued under section 122.654 of the
Revised Code,
any restrictions on the use of
property
identified
pursuant to
division (C)(3) of section
3746.10 of the
Revised
Code, and any restrictions on the use of property contained in a deed or other instrument as provided in division (E) of section 3737.882 of the Revised Code; any easement executed or granted under section 3734.22, 3734.24, 3734.25, or 3734.26 of the Revised Code; any environmental covenant entered into in accordance with sections 5301.80 to 5301.92 of the Revised Code; all
memoranda of trust, as
described in division (A)
of
section
5301.255 of the Revised
Code, that describe specific
real
property; and all agreements
entered into under division (A)
of
section 1521.26 of
the Revised Code; (2) A record of mortgages, in which shall be recorded all
of
the following: (a) All mortgages, including amendments, supplements,
modifications, and extensions of mortgages, or other instruments
of writing by which lands, tenements, or hereditaments are or may
be mortgaged or otherwise conditionally sold, conveyed, affected,
or encumbered; (b) All executory installment contracts for the sale of
land
executed after September 29, 1961, that by their terms are
not
required to be fully performed by one or more of the parties
to
them within one year of the date of the contracts; (c) All options to purchase real estate, including
supplements, modifications, and amendments of the options, but no
option of that nature shall be recorded if it does not state a
specific day and year of expiration of its validity; (d) Any tax certificate sold under section 5721.33 of the
Revised Code,
or memorandum
of it, that is presented for
filing
of record. (3) A record of powers of attorney, including all
memoranda
of trust, as described in division (A) of section
5301.255 of the
Revised Code, that do not describe specific real
property; (4) A record of plats, in which shall be recorded all
plats
and maps of town lots, of the subdivision of town lots, and
of
other divisions or surveys of lands, any center line survey of
a
highway located within the county, the plat of which shall be
furnished by the director of transportation or county engineer,
and all drawings
and amendments to drawings, as provided in
Chapter 5311. of the Revised
Code; (5) A record of leases, in which shall be recorded all
leases, memoranda of leases, and supplements, modifications, and
amendments of leases and memoranda of leases; (6) A record of declarations
executed pursuant to section
2133.02 of the
Revised Code
and durable powers of attorney for
health care executed pursuant to section
1337.12 of the Revised
Code. (B) All instruments or memoranda of instruments entitled to
record shall be recorded in the proper record in the order in
which they are presented for record. The recorder may index,
keep, and record in one volume unemployment compensation liens,
internal revenue tax liens and other liens in favor of the United
States as described in division (A) of section 317.09 of the
Revised Code, personal tax liens, mechanic's liens, agricultural
product liens, notices of liens, certificates of satisfaction or
partial release of estate tax liens, discharges of recognizances,
excise and franchise tax liens on corporations, broker's liens,
and liens
provided for in sections 1513.33, 1513.37, 3752.13,
5111.021, and
5311.18
of the Revised Code. The recording of an option to purchase real estate,
including
any supplement, modification, and amendment of the
option, under
this section shall serve as notice to any purchaser
of an interest
in the real estate covered by the option only
during the period of
the validity of the option as stated in the
option. (C) In lieu of keeping the six separate
sets of records
required in divisions (A)(1) to
(6) of this section and the
records
required in division
(D) of this section, a county
recorder may
record all the instruments required to be recorded by
this
section
in two separate sets of record books. One set shall
be
called the
"official records" and shall contain the instruments
listed in
divisions (A)(1),
(2),
(3),
(5),
and (6)
and
(D) of this section. The
second set of records shall
contain the instruments listed in
division
(A)(4) of this
section. (D) Except as provided in division
(C)
of this
section, the
county recorder shall keep a separate set of records
containing
all corrupt activity lien notices filed with the
recorder pursuant
to section 2923.36 of the Revised Code and a
separate set of
records containing all medicaid fraud lien
notices
filed with the
recorder pursuant to section 2933.75 of
the Revised
Code.
Sec. 3734.22. Before beginning to clean up any facility
under section 3734.21 of the Revised Code, the director of
environmental protection shall endeavor to enter into an
agreement with the owner of the land on which the facility is
located, or with the owner of the facility, specifying the
measures to be performed and authorizing the director, employees
of the agency, or contractors retained by the director to enter
upon the land and perform the specified measures. Each agreement shall contain provisions for the
reimbursement of the state for the costs of the cleanup. All reimbursements and payments shall be credited to the
hazardous waste clean-up fund created in section 3734.28 of the
Revised Code. The agreement may require the owner to execute an easement
whereby the director, an authorized employee of the agency, or a
contractor employed by the agency in accordance with the bidding
procedure established in division (C) of section 3734.23 of the
Revised Code may enter upon the facility to sample, repair, or
reconstruct air and water quality monitoring equipment
constructed under the agreement. Such easements shall be for a
specified period of years and may be extinguished by agreement
between the owner and the director. When necessary to protect
the public health or safety, the agreement may require the owner
to execute a restrictive covenant to run with the land that
specifies the uses that may be made of the facility after work
performed is completed, specifies the period for which the
restrictive covenant applies, and provides terms whereby
modifications to the restrictive covenant, or other land uses,
may be initiated or proposed to the director by the owner or by
subsequent owners of the facility. All easements or covenants
required under this section shall be recorded in the office of
the county recorder of the county in which the facility is
located, and the recording fees shall be paid by the director enter into an environmental covenant with the director in accordance with sections 5301.80 to 5301.92 of the Revised Code. Upon a breach of the reimbursement provisions of the
agreement by the owner of the land or facility, or upon
notification to the director by the owner that the owner is
unable to
perform the duties under the reimbursement provisions of the
agreement, the director shall record the unreimbursed
portion of
the costs of cleanup at the office of the county
recorder of the county in which
the facility is located. The costs so
recorded constitute a lien against the property on
which the facility is
located until
discharged. Upon written request of the director, the attorney
general shall institute a civil action to recover the
unreimbursed portion of the costs of cleanup. Any moneys so
recovered shall be credited to the hazardous waste clean-up fund.
Sec. 3734.24. After the cleanup of a solid waste facility
or a hazardous waste facility acquired and cleaned up under
section 3734.23 of the Revised Code, the director of
environmental protection may, if the facility is suitable for use
by any other state department, agency, office, or institution and
if the proposed use of the facility is compatible with the
condition of the facility as cleaned up, transfer the facility to
that state department, agency, office, or institution. The
director shall continue to provide for the post-closure care,
maintenance, and monitoring of any such cleaned-up facility as
required by section 3734.23 of the Revised Code. If the director determines that any facility so cleaned up
is suitable, because of its condition as cleaned up, for
restricted or unrestricted use, he the director may, with the
approval of the
attorney general, sell the facility if the sale is advantageous
to the state. Prior to selling the cleaned-up facility, the
director shall, when necessary to protect public health or
safety, execute a restrictive covenant to run with the land that
specifies the uses that may be made of the facility, specifies
the period for which the restrictive covenant applies, and
provides terms whereby modifications to the restrictive covenant,
or other land uses, may be initiated or proposed to the director
by subsequent owners of the facility enter into an environmental covenant in accordance with sections 5301.80 to 5301.92 of the Revised Code. When selling any such
cleaned-up facility, the director shall retain the right to enter
upon the facility, in person or by his an authorized agent, to
provide for the post-closure care, maintenance, and monitoring of
the facility. The director shall provide for the post-closure
care, maintenance, and monitoring of any such facility sold as
required by section 3734.23 of the Revised Code. With the approval of the attorney general, the director may
grant easements or leases on any such cleaned-up facility if he the
director determines that the use of the facility under the easement or
lease is compatible with its condition as cleaned up. Any moneys derived from the sale of such cleaned-up
facilities or from payments from easements or leases shall be
credited to the hazardous waste clean-up fund created in section
3734.28 of the Revised Code.
Sec. 3734.25. (A) The director of environmental
protection may make grants of moneys from the hazardous waste
clean-up fund created in section 3734.28 of the Revised Code for
payment by the state of up to two-thirds of the reasonable and
necessary expenses incurred by a municipal corporation, county,
or township for the proper closure of or abatement of air or
water pollution or soil contamination from a solid waste facility
in which significant quantities of hazardous waste were disposed
of and that the political subdivision owns and once operated. (B) A municipal corporation, county, or township shall
submit an application for a grant on forms provided by the
director, together with detail plans and specifications
indicating the measures to be performed, an itemized estimate of
the project's cost, a description of the project's benefits, and
such other information as the director prescribes. The plan for
closure or abatement of air or water pollution or soil
contamination may be prepared in consultation with the director
or the board of health of the city or general health district in
which the facility is located. The director may award the
applicant a grant only if he the director finds that the
proposed measures will provide for the proper closure of the facility and will
abate or prevent air or water pollution or soil contamination,
including, but not limited to, those measures necessary or
desirable to: (1) In the case of a facility at which land burial of
hazardous waste occurred, establish and maintain a suitable cover
of soil and vegetation over the cells in which waste is buried in
order to minimize erosion, the infiltration of surface water into
the cells, the production of leachate, and the accumulation or
runoff of contaminated surface waters and to prevent air
emissions of hazardous waste from the facility; (2) Collect and treat contaminated surface water runoff
from the facility; (3) Collect and treat leachate produced at the facility; (4) Install test wells and other equipment or facilities
to monitor the quality of surface waters receiving runoff from
the facility or to monitor air emissions of hazardous waste from
the facility; (5) Regularly monitor and analyze surface water runoff
from the facility, the quality of waters receiving the runoff,
and groundwater ground water quality in the vicinity of the facility, and
regularly monitor leachate collection and treatment systems
installed under the grant and analyze samples from them; (6) Remove and dispose of hazardous waste from the
facility at a suitable hazardous waste disposal facility where
necessary to protect public health or safety or to prevent or
abate air or water pollution or soil contamination. (C) The director shall determine the amount of the grant
based upon his the director's determination of what constitutes
reasonable and
necessary expenses for the proper closure of the facility or for
the prevention or elimination of air or water pollution or soil
contamination from the facility. In making a grant, the director
shall enter into a contract with the municipal corporation,
county, or township that owns the facility to ensure that the
moneys granted are used for the purposes of this section and that
measures performed are properly done. The final payment under a
grant may not be made until the director inspects and approves
the completed cleanup. The contract shall require the municipal corporation,
county, or township to execute an easement whereby the director,
an authorized employee of the agency, or a contractor employed by
the director may enter upon the facility to sample, repair, or
reconstruct air and water quality monitoring equipment
constructed under the contract. Such easements shall be for a
specified period of years and may be extinguished by agreement
between the political subdivision and the director. When necessary to protect public health or safety, the
contract may require the municipal corporation, county, or
township to execute a restrictive covenant to run with the land
that specifies the uses that may be made of the facility after
work performed under the contract is completed, specifies the
period for which the restrictive covenant applies, and provides
terms whereby modifications to the restrictive covenant, or other
land uses, may be initiated or proposed to the director by the
political subdivision or by subsequent owners of the facility.
Any easements or covenants required under this section shall be
recorded in the office of the county recorder of the county in
which the facility is located, and the recording fees shall be
paid by the recipient of the grant enter into an environmental covenant with the director in accordance with sections 5301.80 to 5301.92 of the Revised Code.
Sec. 3734.26. (A) The director of environmental
protection may make grants of moneys from the hazardous waste
clean-up fund created in section 3734.28 of the Revised Code to
the owner, other than a political subdivision, of a solid waste
facility in which significant quantities of hazardous waste were
disposed of or a hazardous waste facility for up to fifty per
cent of the cost of the reasonable and necessary expenses
incurred for the proper closure of or abatement or prevention of
air or water pollution or soil contamination from the facility
and for developing the land on which it was located for use in
industry, commerce, distribution, or research. The director shall not make grants to the owner of any land
on which such facilities are located if the owner at any time
owned or operated the facility located thereon for profit or in
conjunction with any profit-making enterprise located in this
state or to any person who at any time owned or operated a
facility concerning which the director has taken action under
section 3734.20, 3734.22, or 3734.23 of the Revised Code.
However, the director may make grants under this section to any
subsequent owner of the land, provided that the person has no
affiliation with any person who owned or operated the facility
located on the land for profit or in conjunction with any
profit-making enterprise located in this state or who owned or
operated a facility concerning which the director has taken
action under section 3734.20, 3734.22, or 3734.23 of the Revised
Code. (B) The owner shall submit an application for a grant on
forms furnished by the director, together with detail plans and
specifications for the measures to be performed to close the
facility properly or to abate or prevent air or water pollution
or soil contamination from the facility, an itemized estimate of
the project's cost, a description of the project's estimated
benefits, and such other information as the director prescribes.
The plan may be prepared in consultation with the director or
with the board of health of the city or general health district
in which the facility is located. The director may award the
applicant a grant only if he finds after finding that the
proposed measures
will provide for the proper closure of the facility or will abate
or prevent air or water pollution or soil contamination from the
facility, including, but not limited to, those measures necessary
or desirable to: (1) In the case of a facility for the land burial of
hazardous waste, establish and maintain a suitable cover of soil
and vegetation over the cells in which waste is buried in order
to minimize erosion, the infiltration of surface water into the
cells, the production of leachate, and the accumulation or runoff
of contaminated surface water and to prevent air emissions of
hazardous waste from the facility; (2) Collect and treat contaminated surface water runoff
from the facility; (3) Collect and treat leachate produced at the facility; (4) Install test wells and other equipment or facilities
to monitor the quality of surface waters receiving runoff from
the facility or to monitor air emissions of hazardous waste from
the facility; (5) Regularly monitor and analyze surface water runoff
from the facility, the quality of waters receiving the runoff,
and groundwater ground water quality in the vicinity of the facility, and
regularly monitor leachate collection and treatment systems
installed under the grant and analyze samples from them; (6) Remove and dispose of hazardous waste from the
facility at a suitable hazardous waste disposal facility where
necessary to protect public health or safety or to abate or
prevent air or water pollution or soil contamination. (C) The director shall determine the amount of the grant
based upon his the director's determination of what constitutes
reasonable and
necessary expenses for the proper closure of the facility or for
the abatement or prevention of air or water pollution or soil
contamination from the facility. The amount of the grant shall
not exceed one-half of the total, as determined by the director,
of what constitutes reasonable and necessary expenses actually
incurred for the proper closure of or abatement or prevention of
air or water pollution or soil contamination from the facility. In making a grant, the director shall enter into a contract
for funding with each applicant awarded a grant to ensure that
the moneys granted are used for the purpose of this section and
that the measures performed are properly performed. The final
payment under a grant may not be made until the director inspects
and approves the completed cleanup and the plans for developing
the land for use in industry, commerce, distribution, or
research. Each contract for funding shall contain provisions for the
reimbursement of the state of a portion of the costs of the
cleanup that is commensurate with the increase in the market
value of the property attributable to the cleanup thereon, as
determined by appraisals made before and after cleanup in the
manner stated in the contract. For reimbursement of that
portion, the contract may include provisions for: (1) Payment to the state of the share of the income
derived from the productive use of the land; (2) Imposition of a lien in the amount of the increase in
fair market value payable upon the transfer or conveyance to a
new owner; (3) Waiver of all reimbursement if the determination
discloses an increase in value that is insubstantial in
comparison to the benefits to the public from the abatement of
threats to public health or safety or from the abatement or
prevention of pollution or contamination, considering the
applicant's share of the cleanup cost. All reimbursements and payments shall be credited to the
hazardous waste clean-up fund created in section 3734.28 of the
Revised Code. (D) The contract shall require the owner to execute an
easement whereby the director, an authorized employee of the
agency, or a contractor employed by the agency may enter upon the
facility to sample, repair, or reconstruct air and water quality
monitoring equipment constructed under the contract. Such
easements shall be for a specified period of years and may be
extinguished by agreement between the owner and the director.
When necessary to protect the public health or safety, the
contract may require the owner to execute a restrictive covenant
to run with the land that specifies the uses that may be made of
the facility after work performed under the grant is completed,
specifies the period for which the restrictive covenant applies,
and provides terms whereby modifications to the restrictive
covenant, or other land uses, may be initiated or proposed to the
director by the owner or by subsequent owners of the facility.
All easements or covenants required under this section shall be
recorded in the office of the county recorder of the county in
which the facility is located, and the recording fees shall be
paid by the owner enter into an environmental covenant with the director in accordance with sections 5301.80 to 5301.92 of the Revised Code. (E) As used in this section, "commerce" includes, but is
not limited to, agriculture, forestry, and housing.
Sec. 3745.01. There is hereby created the environmental
protection agency, headed by the director of environmental
protection. The agency, under the supervision of the
director, shall administer the laws pertaining to chemical emergency
planning, community right-to-know, and toxic chemical release
reporting; the cessation of chemical handling operations; the prevention,
control, and abatement of air and
water pollution; public water supply; comprehensive water
resource management planning; and the disposal and treatment of
solid wastes, infectious wastes, construction and demolition
debris, hazardous waste, sewage, industrial waste, and other
wastes. The director may do all of the following: (A) Provide such methods of administration, appoint such
personnel, make such reports, and take such other action as may
be necessary to comply with the requirements of the federal laws
and regulations pertaining to chemical emergency planning,
community right-to-know, and toxic chemical release reporting;
air and water pollution control; public water supply; water
resource planning; and waste disposal and treatment; (B) Procure by contract the temporary or intermittent
services of experts or consultants, or organizations thereof,
when those services are to be performed on a part-time or
fee-for-service basis and do not involve the performance of
administrative duties; (C) Advise, consult, cooperate, and enter into contracts
or agreements with any other agencies of the state, the federal
government, other states, and interstate agencies and with
affected groups, political subdivisions, and industries in
furtherance of the purposes of this chapter
and Chapters 3704., 3714., 3734., 3751., 3752., 6109., and 6111. of the
Revised Code; (D) Establish advisory boards in accordance with section
121.13 of the Revised Code; (E) Accept on behalf of the state any grant, gift, or
contribution made for toxic chemical release reporting, air or
water pollution control, public water supply, water resource
planning, waste disposal or treatment, or related purposes, and
expend it for those purposes; (F) Make an annual report to the governor and the general
assembly on activities and expenditures as well as
recommendations for such additional legislation as the
director considers
appropriate to carry out the director's duties or accomplish
the purposes of this section; (G) Enter into environmental covenants in accordance with sections 5301.80 to 5301.92 of the Revised Code, and grant or accept easements or sell real property pursuant to section 3734.22, 3734.24, 3734.25, or 3734.26 of the Revised Code, as applicable. The agency shall utilize the laboratory facilities of the
department of health and other state institutions and agencies to
the maximum extent that the utilization is practicable,
economical, and technically satisfactory. The director shall maintain and keep available for public
inspection, at the director's principal office, a current
register of all applications filed for permits, leases, licenses, variances,
certificates, and approval of plans and specifications and of
publicly owned treatment works pretreatment programs under the
director's jurisdiction, hearings pending, the
director's final action
thereon, and the dates on which the filings, hearings, and
final actions
occur. The director shall maintain and keep available for public
inspection at the director's principal office all plans,
reports, and other documents required to be filed with the emergency response
commission under Chapter 3750. of the Revised Code and rules
adopted under it, and all reports and other documents required to
be filed with the director under Chapter 3751. of the
Revised Code and rules adopted under it, subject to the requirements of those
chapters and rules adopted under them for the protection of trade
secrets and confidential business information from disclosure to
persons not authorized under those laws to receive trade secret
or confidential business information.
Sec. 3746.04. Within one year after September 28,
1994, the
director of environmental
protection, in accordance with Chapter 119. of the Revised Code
and with the advice of the multidisciplinary council
appointed
under section 3746.03 of the Revised Code, shall adopt, and
subsequently may amend, suspend, or rescind, rules that do both
of the following: (A) Revise the rules adopted under Chapters 3704., 3714.,
3734., 6109., and 6111. of the Revised Code to incorporate the
provisions necessary to conform those rules to the requirements
of this chapter. The amended rules adopted under this division
also shall establish response times for all submittals to the
environmental protection agency required under this chapter or
rules adopted under it. (B) Establish requirements and procedures that are
reasonably necessary for the implementation and administration of
this chapter, including, without limitation, all of the
following: (1) Appropriate generic numerical clean-up standards for
the treatment or removal of soils, sediments, and water media for
hazardous substances and petroleum. The rules shall establish
separate generic numerical clean-up standards based upon the
intended use of properties after the completion of voluntary
actions, including industrial, commercial, and residential uses
and such other categories of land use as the director considers
to be appropriate. The generic numerical clean-up standards
established for each category of land use shall be the
concentration of each contaminant that may be present on a
property that shall ensure protection of public health and safety
and the environment for the reasonable exposure for that category
of land use. When developing the standards, the director shall
consider such factors as all of the following: (a) Scientific information, including, without limitation,
toxicological information and realistic assumptions regarding
human and environmental exposure to hazardous substances or
petroleum; (c) Human activity patterns; (d) Current statistical techniques; (e) For petroleum at industrial property, alternatives to
the use of total petroleum hydrocarbons. The generic numerical clean-up standards established under
division (B)(1) of this section shall be consistent with and
equivalent in scope, content, and coverage to any applicable
standard established by federal environmental laws and
regulations adopted under them, including, without limitation,
the "Federal Water Pollution Control Act Amendments of 1972," 86
Stat. 886, 33 U.S.C.A. 1251, as amended; the "Resource
Conservation and Recovery Act of 1976," 90 Stat. 2806, 42
U.S.C.A. 6921, as amended; the "Toxic Substances Control Act," 90
Stat. 2003 (1976), 15 U.S.C.A. 2601, as amended; the
"Comprehensive Environmental Response, Compensation, and
Liability Act of 1980," 94 Stat. 2779, 42 U.S.C.A. 9601, as
amended; and the "Safe Drinking Water Act," 88 Stat. 1660 (1974),
42 U.S.C.A. 300f, as amended. In order for the rules adopted under division (B)(1) of
this section to require that any such federal environmental
standard apply to a property, the property shall meet the
requirements of the particular federal statute or regulation
involved in the manner specified by the statute or regulation. The generic numerical clean-up standards for petroleum at
commercial or residential property shall be the standards
established in rules adopted under division (B) of section
3737.882 of the Revised Code. (2)(a) Procedures for performing property-specific risk
assessments that would be performed at a property to demonstrate
that the remedy evaluated in a risk assessment results in
protection of public health and safety and the environment
instead of complying with the generic numerical clean-up
standards established in the rules adopted under division (B)(1)
of this section. The risk assessment procedures shall describe a
methodology to establish, on a property-specific basis, allowable
levels of contamination to remain at a property to ensure
protection of public health and safety and the environment on the
property and off the property when the contamination is emanating
off the property, taking into account all of the following: (i) The implementation of treatment, storage, or disposal,
or a combination thereof, of hazardous substances or petroleum; (ii) The existence of institutional controls that
eliminate or mitigate exposure to hazardous substances or
petroleum through the restriction of access to hazardous
substances or petroleum or use of a property, including, without limitation, deed and
water use restrictions activity and use limitations, as defined in section 5301.80 of the Revised Code; (iii) The existence of engineering controls that eliminate
or mitigate exposure to hazardous substances or petroleum through
containment of, control of, or restrictions of access to
hazardous substances or petroleum, including, without limitation,
fences, cap systems, cover systems, and landscaping. (b) The risk assessment procedures and levels of
acceptable risk set forth in the rules adopted under division
(B)(2) of this section shall be based upon all of the following: (i) Scientific information, including, without limitation,
toxicological information and actual or proposed human and
environmental exposure; (ii) Locational and climatic factors; (iii) Surrounding land use and human activities; (iv) Differing levels of remediation that may be required
when an existing land use is continued compared to when a
different land use follows the remediation. (c) Any standards established pursuant to rules adopted
under division (B)(2) of this section shall be no more stringent
than standards established under the environmental statutes of
this state and rules adopted under them for the same contaminant
in the same environmental medium that are in effect at the time
the risk assessment is conducted. (3) Minimum standards for phase I property assessments.
The standards shall specify the information needed to demonstrate
that there is no reason to believe that contamination exists on a
property. The rules adopted under division (B)(3) of this
section, at a minimum, shall require that a phase I property
assessment include all of the following: (a) A review and analysis of deeds, mortgages, easements
of record, and similar documents relating to the chain of title
to the property that are publicly available or that are known to
and reasonably available to the owner or operator; (b) A review and analysis of any previous environmental
assessments, property assessments, environmental studies, or
geologic studies of the property and any land within two thousand
feet of the boundaries of the property that are publicly
available or that are known to and reasonably available to the
owner or operator; (c) A review of current and past environmental compliance
histories of persons who owned or operated the property; (d) A review of aerial photographs of the property that
indicate prior uses of the property; (e) Interviews with managers of activities conducted at
the property who have knowledge of environmental conditions at
the property; (f) Conducting an inspection of the property consisting of
a walkover; (g) Identifying the current and past uses of the property,
adjoining tracts of land, and the area surrounding the property,
including, without limitation, interviews with persons who reside
or have resided, or who are or were employed, within the area
surrounding the property regarding the current and past uses of
the property and adjacent tracts of land. The rules adopted under division (B)(3) of this section
shall establish criteria to determine when a phase II property
assessment shall be conducted when a phase I property assessment
reveals facts that establish a reason to believe that hazardous
substances or petroleum have been treated, stored, managed, or
disposed of on the property if the person undertaking the phase I
property assessment wishes to obtain a covenant not to sue under
section 3746.12 of the Revised Code. (4) Minimum standards for phase II property assessments.
The standards shall specify the information needed to demonstrate
that any contamination present at the property does not exceed
applicable standards or that the remedial activities conducted at
the property have achieved compliance with applicable standards.
The rules adopted under division (B)(4) of this section, at a
minimum, shall require that a phase II property assessment
include all of the following: (a) A review and analysis of all documentation prepared in
connection with a phase I property assessment conducted within
the one hundred eighty days before the phase II property
assessment begins. The rules adopted under division (B)(4)(a) of
this section shall require that if a period of more than one
hundred eighty days has passed between the time that the phase I
assessment of the property was completed and the phase II
assessment begins, the phase II assessment shall include a
reasonable inquiry into the change in the environmental condition
of the property during the intervening period. (b) Quality assurance objectives for measurements taken in
connection with a phase II assessment; (c) Sampling procedures to ensure the representative
sampling of potentially contaminated environmental media; (d) Quality assurance and quality control requirements for
samples collected in connection with phase II assessments; (e) Analytical and data assessment procedures; (f) Data objectives to ensure that samples collected in
connection with phase II assessments are biased toward areas
where information indicates that contamination by hazardous
substances or petroleum is likely to exist. (5) Standards governing the conduct of certified
professionals, criteria and procedures for the certification of
professionals to issue no further action letters under section
3746.11 of the Revised Code, and criteria for the suspension and
revocation of those certifications. The issuance, denial,
suspension, and revocation of those certifications are subject to
Chapter 3745. of the Revised Code, and the director shall take
any such action regarding a certification as a final action. The rules adopted under division (B)(5) of this section
shall do all of the following: (a) Provide for the certification of environmental
professionals to issue no further action letters pertaining to
investigations and remedies in accordance with the criteria and
procedures set forth in the rules. The rules adopted under
division (B)(5)(a) of this section shall do at least all of the
following: (i) Authorize the director to consider such factors as an
environmental professional's previous performance record
regarding such investigations and remedies and the environmental
professional's environmental
compliance history when determining whether to certify the
environmental professional; (ii) Ensure that an application for certification is
reviewed in a timely manner; (iii) Require the director to certify any environmental professional
who
the director determines complies with those criteria; (iv) Require the director to deny certification for any environmental
professional who does not comply with those criteria. (b) Establish an annual fee to be paid by environmental
professionals certified pursuant to the rules adopted under
division (B)(5)(a) of this section. The fee shall be established
at an amount calculated to defray the costs to the environmental
protection agency for the required reviews of the qualifications
of environmental professionals for certification and for the
issuance of the certifications. (c) Develop a schedule for and establish requirements
governing the review by the director of the credentials of
environmental professionals who were deemed to be certified
professionals under division (D) of section 3746.07 of the
Revised Code in order to determine if they comply with the
criteria established in rules adopted under division (B)(5) of
this section. The rules adopted under division (B)(5)(c) of this
section shall do at least all of the following: (i) Ensure that the review is conducted in a timely
fashion; (ii) Require the director to certify any such environmental
professional who the director determines complies with those
criteria; (iii) Require any such environmental professional initially to pay the
fee established in the rules adopted under division (B)(5)(b) of
this section at the time that the environmental professional is so
certified by
the director; (iv) Establish a time period within which any such environmental
professional who does not comply with those criteria may obtain
the credentials that are necessary for certification; (v) Require the director to deny certification for any
such environmental professional who does not comply with those criteria
and who
fails to obtain the necessary credentials within the established
time period. (d) Require that any information submitted to the director
for the purposes of division (B)(5)(a) or (c) of this section
comply with division (A) of section 3746.20 of the Revised Code; (e) Authorize the director to suspend or revoke the
certification of an environmental professional if the
director finds that the environmental professional's performance
has resulted in the issuance of no
further action letters under section 3746.11 of the Revised Code
that are not consistent with applicable standards or finds that
the certified environmental professional has not substantially complied
with section 3746.31 of the Revised Code; (f) Authorize the director to suspend for a period of not
more than five years or to permanently revoke a certified
environmental professional's certification for any violation of or
failure to
comply with an ethical standard established in rules adopted
under division (B)(5) of this section. (g) Require the director to revoke the certification of an
environmental professional if the director finds that the
environmental professional
falsified any information on the environmental
professional's application for certification
regarding the environmental professional's credentials or
qualifications or any other
information generated for the purposes of or use under this
chapter or rules adopted under it; (h) Require the director permanently to revoke the
certification of an environmental professional who has violated
or is violating division (A) of section 3746.18 of the Revised
Code; (i) Preclude the director from revoking the certification
of an environmental professional who only conducts investigations
and remedies at property contaminated solely with petroleum
unless the director first consults with the director of commerce. (6) Criteria and procedures for the certification of
laboratories to perform analyses under this chapter and rules
adopted under it. The issuance, denial, suspension, and
revocation of those certifications are subject to Chapter 3745.
of the Revised Code, and the director of environmental protection
shall take any such action regarding a certification as a final
action. The rules adopted under division (B)(6) of this section
shall do all of the following: (a) Provide for the certification to perform analyses of
laboratories in accordance with the criteria and procedures
established in the rules adopted under division (B)(6)(a) of this
section and establish an annual fee to be paid by those
laboratories. The fee shall be established at an amount
calculated to defray the costs to the agency for the review of
the qualifications of those laboratories for certification and
for the issuance of the certifications. The rules adopted under
division (B)(6)(a) of this section may provide for the
certification of those laboratories to perform only particular
types or categories of analyses, specific test parameters or
group of test parameters, or a specific matrix or matrices under
this chapter. (b) Develop a schedule for and establish requirements
governing the review by the director of the operations of
laboratories that were deemed to be certified laboratories under
division (E) of section 3746.07 of the Revised Code in order to
determine if they comply with the criteria established in rules
adopted under division (B)(6) of this section. The rules adopted
under division (B)(6)(b) of this section shall do at least all of
the following: (i) Ensure that the review is conducted in a timely
fashion; (ii) Require the director to certify any such laboratory
that the director determines complies with those criteria; (iii) Require any such laboratory initially to pay the fee
established in the rules adopted under division (B)(6)(a) of this
section at the time that the laboratory is so certified by the
director; (iv) Establish a time period within which any such
laboratory that does not comply with those criteria may make
changes in its operations necessary for the performance of
analyses under this chapter and rules adopted under it in order
to be certified by the director; (v) Require the director to deny certification for any
such laboratory that does not comply with those criteria and that
fails to make the necessary changes in its operations within the
established time period. (c) Require that any information submitted to the director
for the purposes of division (B)(6)(a) or (b) of this section
comply with division (A) of section 3746.20 of the Revised Code; (d) Authorize the director to suspend or revoke the
certification of a laboratory if the director finds that the
laboratory's
performance has resulted in the issuance of no further action
letters under section 3746.11 of the Revised Code that are not
consistent with applicable standards; (e) Authorize the director to suspend or revoke the
certification of a laboratory if the director finds that the
laboratory falsified any information on its application for certification
regarding its credentials or qualifications; (f) Require the director permanently to revoke the
certification of a laboratory that has violated or is violating
division (A) of section 3746.18 of the Revised Code. (7) Information to be included in a no further action
letter prepared under section 3746.11 of the Revised Code,
including, without limitation, all of the following: (a) A summary of the information required to be submitted
to the certified environmental professional preparing the no further
action
letter under division (C) of section 3746.10 of the Revised Code; (b) Notification that a risk assessment was performed in
accordance with rules adopted under division (B)(2) of this
section if such an assessment was used in lieu of generic
numerical clean-up standards established in rules adopted under
division (B)(1) of this section; (c) The contaminants addressed at the property, if any,
their source, if known, and their levels prior to remediation; (d) The identity of any other person who performed work to
support the request for the no further action letter as provided
in division (B)(2) of section 3746.10 of the Revised Code and the
nature and scope of the work performed by that person; (e) A list of the data, information, records, and
documents relied upon by the certified environmental professional in
preparing
the no further action letter. (8) Methods for determining fees to be paid for the
following services provided by the agency under this chapter and
rules adopted under it: (a) Site- or property-specific technical assistance in
developing or implementing plans in connection with a voluntary
action; (b) Reviewing applications for and issuing consolidated
standards permits under section 3746.15 of the Revised Code and
monitoring compliance with those permits; (c) Negotiating, preparing, and entering into agreements
necessary for the implementation and administration of this
chapter and rules adopted under it; (d) Reviewing no further action letters, issuing covenants
not to sue, and monitoring compliance with any terms and
conditions of those covenants and with operation and maintenance
agreements entered into pursuant to those covenants, including,
without limitation, conducting audits of properties where
voluntary actions are being or were conducted under this chapter
and rules adopted under it. The fees established pursuant to the rules adopted under
division (B)(8) of this section shall be at a level sufficient to
defray the direct and indirect costs incurred by the agency for
the administration and enforcement of this chapter and rules
adopted under it other than the provisions regarding the
certification of professionals and laboratories. (9) Criteria for selecting the no further action letters
issued under section 3746.11 of the Revised Code that will be
audited under section 3746.17 of the Revised Code, and the scope
and procedures for conducting those audits. The rules adopted
under division (B)(9) of this section, at a minimum, shall
require the director to establish priorities for auditing no
further action letters to which any of the following applies: (a) The letter was prepared by an environmental
professional who was deemed to be a certified professional under
division (D) of section 3746.07 of the Revised Code, but who does
not comply with the criteria established in rules adopted under
division (B)(5) of this section as determined pursuant to rules
adopted under division (B)(5)(d) of this section;. (b) The letter was submitted fraudulently;. (c) The letter was prepared by a certified environmental professional
whose certification subsequently was revoked in accordance with
rules adopted under division (B)(5) of this section, or analyses
were performed for the purposes of the no further action letter
by a certified laboratory whose certification subsequently was
revoked in accordance with rules adopted under division (B)(6) of
this section;. (d) A covenant not to sue that was issued pursuant to the
letter was revoked under this chapter;. (e) The letter was for a voluntary action that was
conducted pursuant to a risk assessment in accordance with rules
adopted under division (B)(2) of this section;. (f) The letter was for a voluntary action that included as
remedial activities engineering controls authorized under section
3746.05 of the Revised Code or restrictions on the activity and use of the
relevant property identified pursuant to limitations, as defined in section 5301.80 of the Revised Code, identified in an environmental covenant that was recorded or entered under division (C)(3) of
section 3746.10 of the Revised Code. The rules adopted under division (B)(9) of this section
shall provide for random audits of no further action letters to
which the rules adopted under divisions (B)(9)(a) to (f) of this
section do not apply. (10) A classification system to characterize ground water
according to its capability to be used for human use and its
impact on the environment and a methodology that shall be used to
determine when ground water that has become contaminated from
sources on a property for which a covenant not to sue is
requested under section 3746.11 of the Revised Code shall be
remediated to the standards established under division (B)(1) or
(2) of this section. (a) In adopting rules under division (B)(10) of this
section to characterize ground water according to its capability
for human use, the director shall consider all of the following: (i) The presence of legally enforceable, reliable
restrictions on the use of ground water, including, without
limitation, local rules or ordinances; (ii) The presence of regional commingled contamination
from multiple sources that diminishes the quality of ground
water; (iii) The natural quality of ground water; (iv) Regional availability of ground water and reasonable
alternative sources of drinking water; (v) The productivity of the aquifer; (vi) The presence of restrictions on the use of ground
water implemented under this chapter and rules adopted under it; (vii) The existing use of ground water. (b) In adopting rules under division (B)(10) of this
section to characterize ground water according to its impacts on
the environment, the director shall consider both of the
following: (i) The risks posed to humans, fauna, surface water,
sediments, soil, air, and other resources by the continuing
presence of contaminated ground water; (ii) The availability and feasibility of technology to
remedy ground water contamination. (11) Governing the application for and issuance of
variances under section 3746.09 of the Revised Code; (12)(a) In the case of voluntary actions involving
contaminated ground water, specifying the circumstances under
which the generic numerical clean-up standards established in
rules adopted under division (B)(1) of this section and standards
established through a risk assessment conducted pursuant to rules
adopted under division (B)(2) of this section shall be
inapplicable to the remediation of contaminated ground water and
under which the standards for remediating contaminated ground
water shall be established on a case-by-case basis prior to the
commencement of the voluntary action pursuant to rules adopted
under division (B)(12)(b) of this section; (b) Criteria and procedures for the case-by-case
establishment of standards for the remediation of contaminated
ground water under circumstances in which the use of the generic
numerical clean-up standards and standards established through a
risk assessment are precluded by the rules adopted under division
(B)(12)(a) of this section. The rules governing the procedures
for the case-by-case development of standards for the remediation
of contaminated ground water shall establish application, public
participation, adjudication, and appeals requirements and
procedures that are equivalent to the requirements and procedures
established in section 3746.09 of the Revised Code and rules
adopted under division (B)(11) of this section, except that the
procedural rules shall not require an applicant to make the
demonstrations set forth in divisions (A)(1) to (3) of section
3746.09 of the Revised Code and shall not require the director to
obtain the advice of the property revitalization board created in
section 3746.08 of the Revised Code regarding any application
submitted pursuant to the rules adopted under division (B)(12)(b)
of this section. (13) A definition of the evidence that constitutes
sufficient evidence for the purpose of division (A)(5) of section
3746.02 of the Revised Code. At least thirty days before filing the proposed rules
required to be adopted under this section with the secretary of
state, director of the legislative service commission, and joint
committee on agency rule review in accordance with divisions (B)
and (H) of section 119.03 of the Revised Code, the director of
environmental protection shall hold at least one public meeting
on the proposed rules in each of the five districts into which
the agency has divided the state for administrative purposes.
Sec. 3746.10. (A) Except as otherwise provided in section
3746.02 of the Revised Code, any person may undertake a voluntary
action under this chapter and rules adopted under it to identify
and address potential sources of contamination by hazardous
substances or petroleum of soil, sediments, surface water, or
ground water on or underlying property and to establish that the
property meets applicable standards. The voluntary action may
include any one or more of the following elements: (1) A phase I property assessment conducted in accordance
with rules adopted under division (B)(3) of section 3746.04 of
the Revised Code or division (B) of section 3746.07 of the
Revised Code, as appropriate; (2) A phase II property assessment conducted in accordance
with rules adopted under division (B)(4) of section 3746.04 of
the Revised Code or division (C) of section 3746.07 of the
Revised Code, as appropriate; (6) Such other activities as the person undertaking the
voluntary action considers to be necessary or appropriate to
address the contamination. When the person undertaking a voluntary action determines
that the property meets applicable standards, he the person may
seek a no
further action letter from a certified professional. A no
further action letter may be issued for the property at any stage
of the identification of potential hazardous substance or
petroleum contamination or remedial activities after a phase I or
II property assessment has demonstrated that there is no reason
to believe that there has been a release of hazardous substances
or petroleum at or upon the property, that information indicates
that there has been a release of hazardous substances or
petroleum at or upon the property, but that the release is not in
excess of applicable standards, or that if there has been such a
release in excess of applicable standards, those standards have
been achieved through remedial activities or will be achieved in
accordance with the timeframes established in an operation and
maintenance agreement entered into under division (A)(3) of
section 3746.12 of the Revised Code or in such an agreement and a
consolidated standards permit issued under section 3746.15 of the
Revised Code. (B)(1) A person who is participating in the voluntary
action program under this chapter and rules adopted under it
shall do both of the following: (a) Utilize the services of a certified laboratory to
perform any analyses that form the basis for the issuance of a no
further action letter for a property and ensure that a laboratory
performs in connection with a voluntary action only those
analyses for which it is certified under rules adopted under
division (B)(6) of section 3746.04 of the Revised Code or for
which it is qualified prior to the adoption of those rules; (b) Utilize the services of a certified professional to
verify that the property and any remedial activities undertaken
at the property in connection with a voluntary action comply with
applicable standards and, if those standards are met, to issue to
the person a no further action letter for the property. For the
purposes of such a verification, the certified professional shall
perform and review all work that was conducted to support the
request for the no further action letter or shall ensure that the
work has been performed and reviewed by other persons with
expertise and competence in areas other than those of the
certified professional's expertise and competence as necessary
for the issuance of the no further action letter. (2) No person who is participating in the voluntary action
program shall do any of the following: (a) If the person also is a certified professional,
prepare a no further action letter in connection with a voluntary
action conducted at a property that he the certified
professional owns or operates; (b) Utilize the services of a certified professional who
is employed by, affiliated with, or related to him the
participant or who was
employed by or affiliated with him the participant during the
year preceding the
date that he the participant entered into the contract to
utilize the services of
the certified professional in connection with the voluntary
action; (c) Utilize the services of a certified laboratory that is
owned by or affiliated with him the participant, that is owned
by a person
related to him the participant, or that was owned by or
affiliated with him the participant
during the year preceding the date that he the participant
entered into the
contract to utilize the services of the certified laboratory in
connection with the voluntary action, to perform any analyses
that form the basis for the issuance of a no further action
letter in connection with a voluntary action. A covenant not to sue issued under section 3746.12 of the
Revised Code to a person who violated division (B)(2)(a), (b), or (c) of this
section with respect to the no further action letter
upon which issuance of the covenant was based is void. Except as otherwise provided in division (B)(2) of this
section, a person who is participating in the voluntary action
program may utilize an independent contractor to serve as a
certified professional or certified laboratory. (C) In order to obtain a no further action letter, a
person undertaking a voluntary action shall submit to a certified
professional all of the following, as applicable: (1) Information demonstrating that there is no
contamination by hazardous substances or petroleum of soil,
sediments, surface water, or ground water on or underlying the
property in concentrations exceeding applicable standards. The
demonstrations shall be based upon the findings of a phase I or
phase II property assessment. (2) If remedial activities were conducted in connection
with the voluntary action, data demonstrating that the remedy
meets applicable standards or will achieve applicable standards
in accordance with the timeframes established in an operation and
maintenance agreement entered into under division (A)(3) of
section 3746.12 of the Revised Code or in such an agreement and a
consolidated standards permit issued under section 3746.15 of the
Revised Code; (3) If the remedy relies on restrictions on the activity and use of the
property limitations, as defined in section 5301.80 of the Revised Code, to achieve applicable standards, a demonstration that
the use restrictions have an environmental covenant, created in accordance with sections 5301.80 to 5301.92 of the Revised Code, has been recorded in the office of the
county recorder of the county in which the property is located,
or have has been entered in the appropriate register for registered
land as defined in section 5309.01 of the Revised Code, in
compliance with section 3746.14 of the Revised Code; (4) If the remedy relies on engineering controls that
contain or control the release of hazardous substances or
petroleum at or from the property, a plan for the proper
operation and maintenance of the engineering controls. (D) Except as otherwise specifically provided in this
chapter and rules adopted under it, voluntary actions under this
chapter and rules adopted under it shall be undertaken in
compliance with all applicable laws of this state and rules
adopted under them and with applicable ordinances, resolutions,
and rules of political subdivisions of this state.
Sec. 3746.14. (A) Except as otherwise provided in
division (B) of this section, a no further action letter issued
for a property under section 3746.11 of the Revised Code, a
covenant not to sue issued for the property under section 3746.12
of the Revised Code, and any restrictions on the use of such environmental covenant for the property identified pursuant to division (C)(3) of section
3746.10 created in accordance with sections 5301.80 to 5301.92 of the Revised Code shall be filed in the office of the
county recorder of the county in which the property is located by
the person to whom the covenant not to sue was issued and shall
be recorded in the same manner as a deed to the property. The no
further action letter, covenant not to sue, and use restrictions environmental covenant,
if any, shall run with the property. No person shall fail to comply with this division. (B) Pursuant to Chapter 5309. of the Revised Code, a no
further action letter, a covenant not to sue, and, if applicable,
any operation and maintenance agreement and use restrictions environmental covenant
prepared, issued, entered into, or identified under this chapter
and rules adopted under it, or created under sections 5301.80 to 5301.92 of the Revised Code, as applicable, in connection with registered land, as
defined in section 5309.01 of the Revised Code, shall be entered
as a memorial on the page of the register where the title of the
owner is registered. (C) A no further action letter, a covenant not to sue, and
any agreement authorized to be entered into and entered into
under this chapter and rules adopted under it may be transferred
by the recipient to any other person by assignment or in
conjunction with the acquisition of title to the property to
which the document applies.
Sec. 5301.80. As used in sections 5301.80 to 5301.90 of the Revised Code:
(A) "Activity and use limitations" means restrictions or obligations created under sections 5301.80 to 5301.92 of the Revised Code with respect to real property. (B) "Agency" means the environmental protection agency or any other state or federal agency that determines or approves the environmental response project pursuant to which an environmental covenant is created.
(C) "Common interest community" means a condominium, a cooperative, or other real property with respect to which a person, by virtue of the person's ownership of a parcel of real property, is obligated to pay property taxes or insurance premiums or to pay for maintenance or improvement of other real property described in a recorded covenant that creates the common interest community.
(D) "Environmental covenant" or "covenant" means a servitude arising under an environmental response project that imposes activity and use limitations and that meets the requirements established in section 5301.82 of the Revised Code.
(E) "Environmental response project" means a plan or work performed for environmental remediation of real property or to protect ecological features associated with real property and conducted in accordance with one of the following:
(1) Under a federal or state program governing environmental remediation of real property;
(2) Pursuant to mitigation requirements associated with the 401 water quality certification program or the isolated wetland program as required by Chapter 6111. of the Revised Code;
(3) Pursuant to a grant commitment or loan agreement entered into pursuant to section 6111.036 or 6111.037 of the Revised Code.
(F) "Holder" means an agency or person as specified in division (A) of section 5301.81 of the Revised Code.
(G) "Person" includes the state, a political subdivision, another state or local entity, the United States and any agency or instrumentality of it, and any legal entity defined as a person under section 1.59 of the Revised Code.
(H) "Record," when used as a noun, means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
Sec. 5301.81. (A) An agency may be a holder of an environmental covenant. In addition, any person, including a person that owns an interest in the real property that is the subject of an environmental covenant, may be a holder. An environmental covenant may identify more than one holder. (B) The interest of a holder is an interest in real property. However, a right of an agency under sections 5301.80 to 5301.92 of the Revised Code or under an environmental covenant, other than a right as a holder, is not an interest in real property.
Sec. 5301.82. (A) An environmental covenant shall contain all of the following:
(1) A statement that the instrument is an environmental covenant executed pursuant to sections 5301.80 to 5301.92 of the Revised Code; (2) A legally sufficient description of the real property that is subject to the covenant; (3) A description of the activity and use limitations on the real property; (4) Requirements for notice following transfer of a specified interest in, or concerning proposed changes in the use of, applications for building permits for, or proposals for any site work affecting contamination on, the property that is subject to the covenant; (5) The name or identity of every holder; (6) Rights of access to the property granted in connection with implementation or enforcement of the covenant; (7) The signatures of the applicable agency, every holder, and, unless waived by the agency, every owner of the fee simple of the real property that is subject to the environmental covenant; (8) An identification of the name and location of any administrative record for the environmental response project reflected in the environmental covenant. (B) In addition to the information required by division (A) of this section, an environmental covenant may contain other information, restrictions, and requirements agreed to by the persons who signed the covenant, including any of the following: (1) Requirements for periodic reporting describing compliance with the covenant; (2) A brief narrative description of contamination on the property and its remedy, including the contaminants of concern, the pathways of exposure, limits on exposure, and the location and extent of the contamination; (3) Limitations on amendment or termination of the covenant in addition to those established in sections 5301.89 and 5301.90 of the Revised Code; (4) Rights of the holder in addition to the right to enforce the covenant pursuant to section 5301.91 of the Revised Code. (C) In addition to other conditions for an agency's approval of an environmental covenant, the agency may require those persons specified by the agency who have interests in the real property that is the subject of the environmental covenant to sign the covenant.
Sec. 5301.83. (A) A copy of an environmental covenant shall be provided to all of the following in a manner required by the applicable agency: (1) Each person that signed the environmental covenant; (2) Each person holding a recorded interest in the real property that is subject to the environmental covenant; (3) Each person in possession of the real property that is subject to the environmental covenant; (4) Each unit of local government in which the real property that is subject to the covenant is located; (5) Any other person that the agency requires. (B) The validity of an environmental covenant is not affected by failure to provide a copy of the environmental covenant as required under this section.
Sec. 5301.84. An agency is bound by any obligation that it expressly assumes in an environmental covenant, but an agency does not assume obligations merely by signing an environmental covenant. Any other person that signs an environmental covenant is bound by the obligations that the person assumes in the covenant, but signing the covenant does not change obligations, rights, or protections that are granted or imposed under law other than sections 5301.80 to 5301.92 of the Revised Code, except as provided in the covenant.
Sec. 5301.85. (A) An environmental covenant that complies with sections 5301.80 to 5301.92 of the Revised Code runs with the land. (B) An environmental covenant that is otherwise effective is valid and enforceable even if any of the following limitations on enforcement of interests applies: (1) It is not appurtenant to an interest in real property. (2) It can be or has been assigned to a person other than the original holder. (3) It is not of a character that has been recognized traditionally at common law. (4) It imposes a negative burden. (5) It imposes an affirmative obligation on a person having an interest in the real property or on the holder. (6) The benefit or burden of the environmental covenant does not touch or concern real property. (7) There is no privity of estate or contract. (8) The holder dies, ceases to exist, resigns, or is replaced. (9) The owner of an interest that is subject to the environmental covenant and the holder are the same person. (C) An instrument that creates restrictions or obligations with respect to real property that would qualify as activity and use limitations except for the fact that the instrument was recorded before the effective date of sections 5301.80 to 5301.92 of the Revised Code is not invalid or unenforceable because of any of the limitations on enforcement of interests described in division (B) of this section or because it was identified as an easement, servitude, deed restriction, or other interest. Sections 5301.80 to 5301.92 of the Revised Code do not apply in any other respect to such an instrument. (D) Sections 5301.80 to 5301.92 of the Revised Code do not invalidate or render unenforceable any interest, whether designated as an environmental covenant or other interest, that is otherwise enforceable under the laws of this state.
Sec. 5301.86. With respect to interests in real property in existence at the time that an environmental covenant is created or amended, all of the following apply: (A) An interest that has priority under other law is not affected by an environmental covenant unless the person that owns the interest agrees to subordinate that interest to the covenant. (B) Sections 5301.80 to 5301.92 of the Revised Code do not require a person that owns a prior interest to subordinate that interest to an environmental covenant or to agree to be bound by the covenant. (C) A subordination agreement may be contained in an environmental covenant or in a separate record. If the environmental covenant covers commonly owned property in a common interest community, the record may be signed by any person who is authorized by the governing board of the owners' association of the common interest community. (D) An agreement by a person to subordinate a prior interest to an environmental covenant affects the priority of that persons's interest, but does not by itself impose any affirmative obligation on the person with respect to the environmental covenant.
Sec. 5301.87. Sections 5301.80 to 5301.92 of the Revised Code do not authorize a use of real property that is otherwise prohibited by zoning, by law other than sections 5301.80 to 5301.92 of the Revised Code regulating use of real property, or by a recorded instrument that has priority over an environmental covenant. An environmental covenant may prohibit or restrict uses of real property that are authorized by zoning or by law other than sections 5301.80 to 5301.92 of the Revised Code.
Sec. 5301.88. (A) Except as otherwise provided in division (B) of this section, an environmental covenant and any amendment or termination of the covenant shall be filed in the office of the county recorder of each county in which the real property that is subject to the covenant is located and shall be recorded in the same manner as a deed to the property. For purposes of indexing, a holder shall be treated as a grantee.
(B) Pursuant to Chapter 5309. of the Revised Code, an environmental covenant and any amendment or termination of the covenant in connection with registered land, as defined in section 5309.01 of the Revised Code, shall be entered as a memorial on the page of the register where the title of the owner is registered. (C) Except as otherwise provided in division (C) of section 5301.89 of the Revised Code, an environmental covenant is subject to the laws of this state governing recording and priority of interest in real property.
Sec. 5301.89. (A) An environmental covenant is perpetual unless any of the following applies: (1) The environmental covenant is limited by its terms to a specific duration or is terminated by its terms by the occurrence of a specific event. (2) The environmental covenant is terminated by consent pursuant to section 5301.90 of the Revised Code. (3) The environmental covenant is terminated pursuant to division (B) of this section. (4) The environmental covenant is terminated by foreclosure of an interest that has priority over the environmental covenant. (5) The environmental covenant is terminated or modified in an eminent domain proceeding, but only if all of the following apply: (a) The agency that signed the covenant is a party to the proceeding. (b) All persons identified in divisions (A) and (B) of section 5301.90 of the Revised code are given notice of the pendency of the proceeding.
(c) The court determines, after a hearing, that the termination or modification will not adversely affect human health or safety or the environment. (B) If the agency that signed an environmental covenant has determined that the intended benefits of the covenant can no longer be realized, a court, under the doctrine of changed circumstances, in an action in which all persons identified in divisions (A) and (B) of section 5301.90 of the Revised Code have been given notice, may terminate the covenant or reduce its burden on the real property that is subject to the covenant. (C) Except as otherwise provided in divisions (A) and (B) of this section, an environmental covenant may not be extinguished, limited, or impaired through issuance of a tax deed, foreclosure of a tax lien, or application of the doctrine of adverse possession, prescription, abandonment, waiver, lack of enforcement, or acquiescence or a similar doctrine. (D) An environmental covenant may not be extinguished, limited, or impaired by application of sections 5301.47 to 5301.56 of the Revised Code.
Sec. 5301.90. (A) An environmental covenant may be amended or terminated by consent only if the amendment or termination is signed by all of the following: (1) The applicable agency; (2) Unless waived by that agency, the current owner of the fee simple of the real property that is subject to the environmental covenant; (3) Each person that originally signed the covenant unless the person waived in a signed record the right to consent or a court finds that the person no longer exists or cannot be located or identified with the exercise of reasonable diligence; (4) Except as otherwise provided in division (D)(2) of this section, each holder. (B) If an interest in real property is subject to an environmental covenant, the interest is not affected by an amendment of the covenant unless the current owner of the interest consents in writing to the amendment or has waived in a signed record the right to consent to amendments. (C) Except for an assignment undertaken pursuant to a governmental reorganization, assignment of an environmental covenant to a new holder is an amendment of the covenant. (D) Except as otherwise provided in an environmental covenant, both of the following apply: (1) A holder may not assign its interest without consent of the other parties to the covenant. (2) A holder may be removed and replaced by agreement of the other parties specified in division (A) of this section. (E) A court of competent jurisdiction may fill a vacancy in the position of holder.
Sec. 5301.91. (A) A civil action for injunctive or other equitable relief for violation of an environmental covenant may be maintained by any of the following: (1) A party to the covenant; (2) The environmental protection agency; (3) The applicable agency if it is other than the environmental protection agency; (4) Any person to whom the covenant expressly grants the authority to maintain such an action; (5) A person whose interest in the real property or whose collateral or liability may be affected by the alleged violation of the covenant; (6) A unit of local government in which the real property that is subject to the covenant is located. (B) Sections 5301.80 to 5301.92 of the Revised Code do not limit the regulatory authority of the applicable agency or the environmental protection agency if it is not the applicable agency under any law other than sections 5301.80 to 5301.92 of the Revised Code with respect to an environmental response project. (C) A person is not responsible for or subject to liability for environmental remediation solely because it has the right to enforce an environmental covenant.
Sec. 5301.92. Sections 5301.80 to 5301.92 of the Revised Code modify, limit, or supersede the "Electronic Signatures in Global and National Commerce Act," 114 Stat. 464 (2000), 15 U.S.C. 7001 et seq., as amended, except that sections 5301.80 to 5301.92 of the Revised Code do not modify, limit, or supersede section 101 of that act, 15 U.S.C. 7001(a), as amended, or authorize electronic delivery of any of the notices described in section 103 of that act, 15 U.S.C. 7003(b), as amended.
Section 2. That existing sections 123.01, 317.08, 3734.22, 3734.24, 3734.25, 3734.26, 3745.01, 3746.04, 3746.10, and 3746.14 of the Revised Code are hereby repealed.
|
|