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S. B. No. 302 As IntroducedAs Introduced
129th General Assembly | Regular Session | 2011-2012 |
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Cosponsors:
Senators Coley, Patton, Seitz
A BILL
To amend sections 3734.41 and 3734.42 of the Revised
Code to revise requirements governing background
investigations for purposes of the Solid,
Hazardous, and Infectious Wastes Law.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 3734.41 and 3734.42 of the Revised
Code be amended to read as follows:
Sec. 3734.41. As used in sections 3734.41 to 3734.47 of the
Revised Code:
(A) "Applicant" means any person seeking a permit or license
for an off-site facility and any person or business concern
operating such a facility for an applicant.
(B) "Application" means the forms and accompanying documents
filed in connection with the applicant's request for a permit.
(C) "Business concern" means any corporation, association,
firm, partnership, trust, or other form of commercial
organization.
(D) "Disclosure statement" means a statement submitted to the
director of environmental protection and the attorney general by
an applicant. The statement shall include all of the following:
(1) The full name, business address, and social security
number of the applicant or, if the applicant is a business
concern, of all officers, directors, partners, or key employees
thereof and all individuals or business concerns holding any
equity in or debt liability of that business concern or, if the
business concern is a publicly traded corporation, all individuals
or business concerns holding more than five per cent of the equity
in or debt liability of that business concern, except that when
the debt liability is held by a chartered lending institution, the
applicant need supply only the name and business address of the
lending institution;
(2) The full name, business address, and social security
number of all officers, directors, or partners of any business
concern disclosed in the statement and the names and addresses of
all persons holding any equity in or debt liability of any
business concern so disclosed or, if the business concern is a
publicly traded corporation, all individuals or business concerns
holding more than five per cent of the equity in or debt liability
of that business concern, except that when the debt liability is
held by a chartered lending institution, the applicant need supply
only the name and business address of the lending institution;
(3) The full name and business address of any company in
which the applicant holds an equity interest and that collects,
transfers, transports, treats, stores, or disposes of solid
wastes, infectious wastes, or hazardous waste or processes solid
wastes that consist of scrap tires;
(4) A description of the experience and credentials,
including any past or present permits or licenses, for the
collection, transfer, transportation, treatment, storage, or
disposal of solid wastes, infectious wastes, or hazardous waste,
or the processing of solid wastes that consist of scrap tires,
possessed by the applicant or, if the applicant is a business
concern, by the officers, directors, partners, or key employees
thereof;
(5) A listing and explanation of any civil or criminal
prosecution by government agencies, administrative enforcement
actions resulting in the imposition of sanctions, or license
revocations or denials issued by any state or federal authority in
the ten years immediately preceding the filing of the application,
that are pending or have resulted in a finding or a settlement of
a violation of any law or rule or regulation relating to the
collection, transfer, transportation, treatment, storage, or
disposal of solid wastes, infectious wastes, or hazardous waste,
or the processing of solid wastes that consist of scrap tires, or
of any other environmental protection statute, by the applicant
or, if the applicant is a business concern, by the business
concern or any officer, director, partner, or key employee
thereof. For the purposes of division (D)(5) of this section,
violations of any law or rule relating to the transportation of
solid wastes, infectious wastes, or hazardous waste do not include
violations that also apply to the transportation of commodities
that are not wastes.
(6) A listing and explanation of any judgment of liability or
conviction that was rendered pursuant to any state or federal law
or local ordinance resulting in the imposition of a sanction
against the applicant or, if the applicant is a business concern,
against the business concern or any officer, director, partner, or
key employee thereof in the five years immediately preceding the
initial filing of an application;
(7) A listing of any agency outside this state that has or
has had regulatory responsibility over the applicant in connection
with its collection, transfer, transportation, treatment, storage,
or disposal of solid wastes, infectious wastes, or hazardous waste
or processing of solid wastes that consist of scrap tires;
(8) Any other information the attorney general or the
director may require that relates to the competency, reliability,
or good character of the applicant in the five years immediately
preceding the initial filing of an application.
(E) "Key employee" means any individual, other than a public
official or employee as defined in division (B) of section 102.01
of the Revised Code who is required to file a statement under
section 102.02 of the Revised Code, employed by the applicant or
the licensee in a supervisory capacity or empowered to make
discretionary decisions with respect to the solid waste,
infectious waste, or hazardous waste operations of the business
concern, but does not include any employee exclusively engaged in
the physical or mechanical collection, transfer, transportation,
treatment, storage, or disposal of solid wastes, infectious
wastes, or hazardous waste or processing of solid wastes that
consist of scrap tires. If the applicant or permittee has entered
into a contract with another person to operate the facility that
is the subject of the permit or license or application for a
permit or license, "key employee" also includes those employees of
the contractor who act in a supervisory capacity, or are empowered
to make discretionary decisions, with respect to the operation of
the solid, infectious, or hazardous waste facility. An officer or
director of a business concern required to file a disclosure
statement under section 3734.42 of the Revised Code who meets the
definition of "key employee" shall be considered a key employee
for purposes of the filing and disclosure requirements of sections
3734.42 to 3734.47 of the Revised Code.
(F) "License" means the annual license required by section
3734.05 of the Revised Code for an off-site solid waste disposal
or transfer facility or an off-site infectious waste treatment
facility.
(G) "Off-site facility" means a facility that is located off
the premises where the solid wastes, infectious wastes, or
hazardous waste is generated, but does not include any such
facility that exclusively disposes of wastes that are generated
from the combustion of coal, or from the combustion of primarily
coal in combination with scrap tires, that is not combined in any
way with garbage or any such facility that is owned and operated
by the generator of the waste and that exclusively stores,
processes, or disposes of or transfers solid wastes, exclusively
treats infectious wastes, or exclusively disposes of hazardous
waste, generated at one or more premises owned by the generator.
(H) "Permit" means a permit to install and any subsequent
modifications for an off-site solid waste disposal facility,
including an incineration facility, or transfer facility, issued
under section 3734.05 of the Revised Code; a permit to install and
any subsequent modifications for an off-site solid waste facility
that is a scrap tire storage, monocell, monofill, or recovery
facility issued under section 3734.76, 3734.77, or 3734.78 of the
Revised Code, as applicable; a permit to install and any
subsequent modifications for an off-site infectious waste
treatment facility issued under section 3734.05 of the Revised
Code; and a permit to install and operate an off-site hazardous
waste treatment, storage, or disposal facility and the
modification or renewal of a hazardous waste permit for the
treatment, storage, or disposal of hazardous waste issued under
section 3734.05 of the Revised Code.
(I) "Permittee" means any person who has received a permit or
license for an off-site facility.
Sec. 3734.42. (A)(1) Except as otherwise provided in
division (E)(2) of this section, every Every applicant for a
permit other than a permit modification or renewal shall file a
disclosure statement, on a form developed by the attorney general,
with the director of environmental protection and the attorney
general at the same time the applicant files an application for a
permit other than a permit modification or renewal with the
director.
(2) Any individual required to be listed in the disclosure
statement shall be fingerprinted for identification and
investigation purposes in accordance with procedures established
by the attorney general. An individual required to be
fingerprinted under this section shall not be required to be
fingerprinted more than once under this section.
(3) The attorney general, within one hundred eighty days
after receipt of the disclosure statement from an applicant for a
permit, shall prepare and transmit to the director an
investigative report on the applicant, based in part upon the
disclosure statement, except that this deadline may be extended
for a reasonable period of time, for good cause, by the director
or the attorney general. In preparing this report, the attorney
general may request and receive criminal history information from
the federal bureau of investigation and any other law enforcement
agency or organization. The attorney general may provide such
confidentiality regarding the information received from a law
enforcement agency as may be imposed by that agency as a condition
for providing that information to the attorney general.
(4) The review of the application by the director shall
include a review of the disclosure statement and investigative
report.
(B) All applicants and permittees shall provide any
assistance or information requested by the director or the
attorney general and shall cooperate in any inquiry or
investigation conducted by the attorney general and any inquiry,
investigation, or hearing conducted by the director. If, upon
issuance of a formal request to answer any inquiry or produce
information, evidence, or testimony, any applicant or permittee,
any officer, director, or partner of any business concern, or any
key employee of the applicant or permittee refuses to comply, the
permit of the applicant or permittee may be denied or revoked by
the director.
(C) The attorney general may charge and collect such fees
from applicants and permittees as are necessary to cover the costs
of administering and enforcing the investigative procedures
authorized in sections 3734.41 to 3734.47 of the Revised Code. The
attorney general shall transmit moneys collected under this
division to the treasurer of state to be credited to the solid and
hazardous waste background investigations fund, which is hereby
created in the state treasury. Moneys in the fund shall be used
solely for paying the attorney general's costs of administering
and enforcing the investigative procedures authorized in sections
3734.41 to 3734.47 of the Revised Code.
(D) Annually on the anniversary date of the submission to the
director by the attorney general of the investigative report for a
specific facility, or annually on another date assigned by the
attorney general, the An appropriate applicant, a permittee, or a
prospective owner shall submit to the attorney general, on a form
provided by the attorney general, any and all information required
to be included in a disclosure statement that has changed or been
added in the immediately preceding year. If, in the immediately
preceding year, there have been no changes in or additions to the
information required to be included in a disclosure statement, the
appropriate applicant, permittee, or prospective owner shall
submit to the attorney general an affidavit stating that there
have been no changes in or additions to that information during
that time period.
Notwithstanding the requirement for an annual submission of
information, the following information shall be submitted within
the periods specified:
(1) Information required to be included in the disclosure
statement for any new officer, director, partner, or key employee,
to be submitted within ninety days from the addition of the
officer, director, partner, or key employee;
(2) Information required to be included in a disclosure
statement for regarding the addition of any new business concern,
to be submitted within ninety days from the addition of the new
business concern;
(3) Information regarding any new criminal conviction, to be
submitted within ninety days from the judgment entry of
conviction.
(E)(1) The attorney general shall enter in the database
established under section 109.5721 of the Revised Code the name,
the fingerprints, and other relevant information concerning each
officer, director, partner, or key employee of an applicant,
permittee, or prospective owner.
(2) For purposes of section 109.5721 of the Revised Code,
annually on a date assigned by the attorney general, an applicant,
permittee, or prospective owner shall provide the attorney general
with a list of both of the following:
(a) Each officer, director, partner, or key employee of the
applicant, permittee, or prospective owner and the person's
address and social security number;
(b) Any officer, director, partner, or key employee of the
applicant, permittee, or prospective owner who has left a position
previously held with the applicant, permittee, or prospective
owner during the previous one-year period and the person's social
security number.
(3) Annually, the attorney general shall update the database
established under section 109.5721 of the Revised Code to reflect
the information provided by an applicant, permittee, or
prospective owner under divisions (E)(2)(a) and (b) of this
section.
(4) Notwithstanding division (C) of this section, the
attorney general shall charge and collect fees from an applicant,
permittee, or prospective owner that is required to submit
information under this division in accordance with rules adopted
under section 109.5721 of the Revised Code. The fees shall not
exceed fees that are charged to any other person who is charged
fees for purposes of the database established under that section
and who is not an officer, director, partner, or key employee of
an applicant, permittee, or prospective owner under this section.
(F)(1) Every three years, the attorney general shall request
from the federal bureau of investigation any information regarding
a criminal conviction with respect to each officer, director,
partner, or key employee of an applicant, permittee, or
prospective owner. The attorney general may take any actions
necessary for purposes of this division, including, as necessary,
requesting the submission of any necessary documents authorizing
the release of information.
(2) Every three years, an applicant, permittee, or
prospective owner shall submit an affidavit listing all of the
following regarding a business concern required to be listed in
the applicant's, permittee's, or prospective owner's disclosure
statement:
(a) Any administrative enforcement order issued to the
business concern in connection with any violation of any federal
or state environmental protection laws, rules, or regulations
during the previous three-year period;
(b) Any civil action in which the business concern was
determined to be liable or was the subject of injunctive relief or
another type of civil relief in connection with any violation of
any federal or state environmental protection laws, rules, or
regulations during the previous three-year period;
(c) Any criminal conviction for a violation of any federal or
state environmental protection laws, rules, or regulations that
has been committed knowingly or recklessly by the business concern
during the previous three-year period.
(G) With respect to an applicant, permittee, or prospective
owner, the attorney general shall notify the director of
environmental protection of any crime ascertained under division
(E) or (F) of this section that is a disqualifying crime under
section 3734.44 of the Revised Code. The attorney general shall
provide the notification not later than thirty days after the
crime was ascertained.
(H) The failure to provide such information under this
section may constitute the basis for the revocation or of a permit
or license, the denial of a permit or license application, the
denial of a renewal of any a permit or license issued in
accordance with this chapter, provided that prior, or the
disapproval of a change in ownership as described in division (I)
of this section. Prior to any such a denial or, revocation, or
disapproval, the director shall notify the applicant or,
permittee, or prospective owner of the director's intention to do
so
and. The director shall give the applicant or, permittee, or
prospective owner fourteen days from the date of the notice to
explain why the information was not provided. The director shall
consider this information the explanation when determining
whether to revoke or deny the permit or license, deny the permit
or license application or renewal, or disapprove the change in
ownership.
Nothing in this division section affects the rights of the
director or the attorney general granted under sections 3734.40 to
3734.47 of the Revised Code to request information from a person
at any other time.
(E)(1) Except as otherwise provided in division (E)(2) of
this section, every permittee who is not otherwise required to
file a disclosure statement shall file a disclosure statement
within five years after June 24, 1988, pursuant to a schedule for
submissions of disclosure statements developed by the attorney
general. The schedule shall provide all permittees and holders of
a license with at least one hundred eighty days' notice prior to
the date upon which the statement is to be submitted. All other
terms of the schedule shall be established at the discretion of
the attorney general and shall not be subject to judicial review.
(2) An applicant for a permit for an off-site solid waste
facility that is a scrap tire storage, monocell, monofill, or
recovery facility issued under section 3734.76, 3734.77, or
3734.78 of the Revised Code, as applicable, shall file a
disclosure statement within five years after October 29, 1993,
pursuant to a schedule for submissions of disclosure statements
developed by the attorney general. The schedule shall provide all
such applicants with at least one hundred eighty days' notice
prior to the date upon which the statement shall be submitted. All
other terms of the schedule shall be established at the discretion
of the attorney general and shall not be subject to judicial
review.
Beginning five years after October 29, 1993, an applicant for
such a permit shall file a disclosure statement in accordance with
division (A)(1) of this section.
(3) When a permittee submits a disclosure statement at the
time it submits an application for a renewal or modification of
its permit, the attorney general shall remove the permittee from
the submission schedule established pursuant to division (E)(1) or
(2) of this section.
(4) After receiving a disclosure statement under division
(E)(1) or (2) of this section, the attorney general shall prepare
an investigative report and transmit it to the director. The
director shall review the disclosure statement and investigative
report to determine whether the statement or report contains
information that if submitted with a permit application would
require a denial of the permit pursuant to section 3734.44 of the
Revised Code. If the director determines that the statement or
report contains such information, the director may revoke any
previously issued permit pursuant to section 3734.45 of the
Revised Code, or the director shall deny any application for a
renewal of a permit or license. When the renewal of the license is
being performed by a board of health, the director shall instruct
the board of health about those circumstances under which the
renewal is required to be denied by this section.
(F)(I)(1) Whenever there is a change in ownership of any
operating off-site solid waste facility, including incinerators,;
any
operating transfer facility,; any operating off-site
infectious waste treatment facility,; or any operating off-site
hazardous waste treatment, storage, or disposal facility, the
prospective owner shall file a disclosure statement with the
attorney general and the director at least one hundred eighty days
prior to the proposed change in ownership. In addition, whenever
there is a change in ownership of any operating on-site solid
waste facility, including incinerators; any operating on-site
transfer facility; any operating on-site infectious waste
treatment facility; or any operating on-site hazardous waste
treatment, storage, or disposal facility and the prospective owner
intends to operate the facility as an off-site facility by
accepting wastes other than wastes generated by the facility
owner, the prospective owner shall file a disclosure statement
with the attorney general and the director. The prospective owner
shall file the disclosure statement at least one hundred eighty
days prior to the proposed change in ownership.
Upon
Upon receipt of the disclosure statement, the attorney
general shall prepare an investigative report and transmit it to
the director. The director shall review the disclosure statement
and investigative report to determine whether the statement or
report contains information that if submitted with a permit
application would require a denial of the permit pursuant to
section 3734.44 of the Revised Code. If the director determines
that the statement or report contains such information, the
director shall disapprove the change in ownership.
(2) If the parties to a change in ownership decide to proceed
with the change prior to the action of the director on the
disclosure statement and investigative report, the parties shall
include in all contracts or other documents reflecting the change
in ownership language expressly making the change in ownership
subject to the approval of the director and expressly negating the
change if it is disapproved by the director pursuant to division
(F)(I)(1) of this section.
(3) As used in this section, "change in ownership" includes
any a change in the names, other than those of the individuals or
entities that own an off-site solid waste facility, off-site
infectious waste treatment facility, or off-site hazardous waste
treatment, storage, or disposal facility. "Change in ownership"
does not include a legal change in a business concern's name when
its ownership otherwise remains the same. "Change in ownership"
also does not include a personal name change of officers,
directors, partners, or key employees, contained in the a
disclosure statement.
Section 2. That existing sections 3734.41 and 3734.42 of the
Revised Code are hereby repealed.
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