Am.
Sub. H.B. 397
126th General Assembly
(As Passed by the General Assembly)
Reps. Hagan, Collier, Law, Harwood, Schaffer, Cassell, DeBose, Domenick, Book, Brown, Carano, Chandler, Evans, C., Evans, D., Flowers, McGregor, J., Miller, Oelslager, Patton, S., Peterson, Seitz, Setzer, Smith, G., Stewart, J., Uecker, Webster, Williams, Yates
Sens. Niehaus, Armbruster, Zurz, Cates, Coughlin, Fedor, Harris, Prentiss, Hagan, Kearney, Mumper, Roberts, Schuring, Spada, Wilson, Gardner, Dann, Schuler, Fingerhut, Padgett, Grendell
Effective date: Emergency, December 22, 2005
ACT SUMMARY
Permits to
install program
· Requires the Director of Environmental Protection to establish a program for the issuance of permits to install for new construction and demolition debris facilities and the expansion of existing facilities by the Director or boards of health in lieu of the former program under which licenses were issued for the establishment and modification of facilities.
· Requires the Director to adopt rules establishing requirements and procedures for the permits to install program.
· Establishes requirements governing what must be submitted with an application for a permit to install, including the name and address of the applicant, designs and specifications for the facility, background information, and other specified information.
· Requires a person applying for a permit to install to submit specified background information concerning the person and the person's key employees with the application, and authorizes the Director or a board of health to deny the permit if the Director or board finds that the applicant or any other person listed on the application has a history of substantial noncompliance with any environmental laws of Ohio, other states, the United States, or another country.
· Requires annual updates of background information, and requires the submission of background information upon the transfer of a facility.
· Requires the applicant for a permit to install, not later than 60 days after the receipt by the Director or a board of health of the application for a permit for a new construction and demolition debris facility, to hold a public hearing in the township or municipal corporation in which the facility or proposed facility is or is to be located, and establishes notification requirements regarding the public hearing.
Transfer of permit to install or operation license
· Authorizes the transfer of a permit to install or a license to operate a construction and demolition debris facility only with the approval of the Director or a board of health, and specifies that disapproval of the transfer may be made only for the same reasons for which a permit to install may be denied after a background investigation.
Siting
criteria
· Establishes additional siting criteria for new construction and demolition debris facilities, and requires the siting criteria to be applied during the permitting process rather than the licensing process.
Grandfather
clause
· States that certain provisions of the act do not apply to applications for licenses pending prior to the act's effective date and the effective date of rules to be adopted under the act depending on the timing of the submission of an application for such a license.
Operational
plans and fire safety plans
· With respect to plans for the operation of a construction and demolition debris facility that are required by rules adopted under continuing law, requires the plans to include the use of best management practices and contingency plans for effective action in response to fire or explosion or to hydrogen sulfide or other gases.
· Requires the plans for operation of a construction and demolition debris facility to be submitted with an application for an initial license for the operation of the facility, and requires annual updates of the plans if necessary.
· Requires the applicant for an initial license for the operation of a facility to submit a copy of the contingency plans for effective action in response to fire or explosion, or to hydrogen sulfide or other gases, to the appropriate fire department, and requires necessary updates to the plans to be submitted.
Ground
water and leachate monitoring
· Adds that rules adopted under continuing law by the Director governing ground water monitoring at construction and demolition debris facilities must require that ground water monitoring be capable of determining impacts resulting from operation of a facility, include provisions for ground water assessment and corrective actions, and require the submission of an annual ground water monitoring report.
· Requires the Director to adopt rules establishing requirements for the monitoring and sampling of leachate at construction and demolition debris facilities, and specifies that the rules must include requirements that leachate be sampled at least annually, that the leachate be sampled for at least 77 different parameters, and that leachate sampling results be reported to the Director and the applicable board of health.
· Specifies that rules related to ground water and leachate monitoring and sampling apply to new facilities for which a permit to install is required, but, with respect to existing facilities, applies the rules based on the ground water and leachate monitoring systems operating on the act's effective date.
· Precludes the Director or a board of health, as applicable, from paying for the installation or sampling of ground water monitoring wells or the laboratory analysis of ground water samples incurred by a construction and demolition debris facility to comply with applicable rules or with a permit to install issued under the act from the proceeds of disposal fees levied for ground water monitoring purposes under law retained by the act.
Closure
and post-closure care
· Revises the statute that requires the Director of Environmental Protection to adopt rules establishing financial assurance requirements for the closure of facilities by requiring the rules to provide that financial assurance amounts must be determined for each facility by the Director or board of health, as applicable, but specifies that financial assurance for the closure of a facility cannot be less than $13,000 per acre of land that has been or is being used for the disposal of construction and demolition debris.
· Specifies that the rules must require an explanation of the rationale for financial assurance amounts for closure that exceed $13,000 per acre.
· Requires the Director to adopt rules establishing requirements for the post-closure care of construction and demolition debris facilities for a period of five years, authorizes extensions of that five-year period under certain circumstances, and establishes different post-closure care requirements for facilities closing in 2006 and 2007 by order of a board of health, the Director, or a court of competent jurisdiction.
· Requires the Director to adopt rules establishing financial assurance requirements for the post-closure care of facilities that require the determination of the amount of financial assurance to be based on a required cost estimate, requires that post-closure care financial assurance be for a period of five years after the closure of a facility, and authorizes extensions of that five-year period under certain circumstances by order of a board of health, the Director, or a court of competent jurisdiction.
Pulverized
debris
· Prohibits the disposal of pulverized debris at a construction and demolition debris facility, and defines "pulverized debris" to mean a load of debris that, after demolition has occurred, but prior to acceptance of the load of debris for disposal, has been shredded, crushed, ground, or otherwise rendered to such an extent that the load of debris is unidentifiable as construction and demolition debris.
· Authorizes a board of health or the Director to request that pulverized debris be removed from a construction and demolition debris facility.
Transfer facility certifications
· Authorizes a construction and demolition debris facility to request that a transfer facility certify that material from the transfer facility is not off-specification material, solid, infectious, or hazardous waste, or low-level radioactive waste.
· Specifies that with respect to material that is transferred to a construction and demolition debris facility by a federally regulated railroad, the facility may request the railroad to provide a bill of lading, or a copy of the bill of lading, from the shipper of the material or may request the railroad to provide written information indicating that the railroad did not process or add to the material.
Rejected
debris shipments
· Requires the owner or operator of a construction and demolition debris facility to notify the Director or a board of health if the owner or operator rejects a load of debris because the load does not comply with the Construction and Demolition Debris Law.
· Requires the transporter or shipper of a rejected load to notify the Director of the ultimate disposition of the rejected load.
· Requires the Director to adopt rules regarding rejected load notifications.
Exemptions
by boards of health
· Generally requires a board of health, before granting an exemption from the Construction and Demolition Debris Law, to notify the Director of Environmental Protection of the proposed exemption, requires the Director to issue written comments regarding the proposed exemption, and requires the board to consider the written comments when rendering its decision regarding the exemption.
Operator
certification and training
· Requires the Director, in consultation with boards of health and a statewide association representing construction and demolition debris facilities, to establish a program for the certification of operators of facilities and continuing education training requirements for operators.
Information
database
· Requires the Director to establish and maintain a database or databases composed of public information, including at least the record of the annual inspection of each construction and demolition debris facility, information from the annual survey of each health district by the Director, and ground water and leachate data collected in accordance with rules.
Use of Environmental Protection Remediation Fund
· Authorizes money in the continuing Environmental Protection Remediation Fund to be used to conduct remediation activities at construction and demolition debris facilities.
Falsification
· Specifies that falsification of any material information that is required to be submitted to a board of health or the Director with respect to a permit to install or a license issued under the Construction and Demolition Debris Law or an application for such a permit or license, or falsification of any other material information that is required to be submitted to a board or the Director under that Law and rules adopted under it, is grounds for the denial, suspension, or revocation of a permit to install or a license issued under that Law.
Municipal
corporation or township share of construction and demolition debris disposal
fee
·
Requires
the Director to adopt rules establishing requirements for prorating the amount
of the construction and demolition debris disposal fee that may be appropriated
under continuing law by a municipal corporation or township in which only a
portion of a construction and demolition debris facility is located.
Quarterly
payment and timing of transfer of other construction and demolition debris
disposal fees
·
Authorizes
the owner or operator of a facility to enter into an agreement with the
Director or a board of health for the quarterly payment of the continuing
disposal fees that are credited to the Soil and Water Conservation District
Assistance Fund and the Recycling and Litter Prevention Fund, and requires the
Director or a board to transfer money from the fee to the Treasurer of State
not later than 45 days after its receipt.
Procedural changes regarding Environmental Review Appeals Commission
·
Clarifies
that the Director may appeal an action of a local board of health conducted
under the Construction and Demolition Debris Law or the Solid, Infectious, and
Hazardous Waste Law to the Environmental Review Appeals Commission.
·
Includes
adjudication hearings conducted by boards of health in the statute establishing
procedures that the Commission must follow depending on whether an adjudication
hearing previously was conducted.
Refunds or
credits of state solid waste disposal fees
·
Requires
the Director to grant a refund or permit a credit of state solid waste disposal
fees that have not been paid to the owner or operator of a solid waste facility
if the owner's or operator's written request for the refund or credit and
evidence submitted with it indicate that a refund or credit is warranted rather
than authorizing the Director to grant the refund or permit the credit as in
former law.
TABLE OF CONTENTS
Establishment of permit to install program
Application and permit requirements
Transfer of permit to install or operation license
Modification of operation licenses
Applicability of siting criteria
Operational plans and fire safety plans
Ground water and leachate monitoring
Use of fee levied for ground water monitoring
Transfer facility certifications
Exemptions by boards of health
Operator certification and training
Use of Environmental Protection Remediation Fund
Municipal corporation or township share of construction and demolition
debris disposal fee
Quarterly payment and timing of transfer of other construction and
demolition debris disposal fees.
Procedural changes regarding Environmental Review Appeals Commission
Refunds or credits of state solid waste disposal fees
CONTENT AND OPERATION
The Construction and Demolition Debris Law, which was enacted in 1990, requires each construction and demolition debris disposal facility to be licensed and inspected annually by either the applicable board of health or the Director of Environmental Protection. Prior to the act, an initial license was required for a new facility or the modification of an existing facility. The Law established specific requirements for the issuance of initial licenses. Under continuing law, the Director only licenses facilities, and conducts inspections, in areas of the state in which a board of health has not been approved by the Director to administer a construction and demolition debris program.
The
Construction and Demolition Debris Law establishes siting criteria and
licensing procedures and requirements and provides for enforcement of its
provisions. It also requires the
Director to adopt rules governing facilities, their inspection, and the
issuance of licenses. The rules must
ensure that the facilities will not create a nuisance, fire hazard, or health
hazard or cause or contribute to air or water pollution. Unlike the Solid, Infectious, and Hazardous
Waste Law, the Law did not require a background investigation of an applicant
for a license prior to the act.
The act makes
several changes in the construction and demolition debris management
program. It requires the issuance of a
permit to install for a new construction and demolition debris facility or the
expansion of an existing facility in lieu of an initial license and requires an
applicant for a permit to install to include background information about past
violations of environmental laws in the application for the permit. The act establishes additional siting criteria,
adds requirements for public hearings on permit applications, requires rules to
be adopted governing ground water and leachate monitoring, adds requirements
for closure and the post-closure care of facilities, adds requirements
governing pulverized debris, reporting of rejected waste loads, and
certification of materials from transfer facilities, and adds several other
requirements to the Construction and Demolition Debris Law.
Former law
prohibited anyone from establishing or modifying a construction and demolition
debris facility without a construction and demolition debris facility
installation and operation license. A
license was required before the facility could commence operation. At least 90 days before the proposed operation
of the facility, the person proposing to open or modify the facility had to
submit an application for a license with accompanying plans, specifications,
and information regarding the facility and its method of operation to the
appropriate board of health or to the Director of Environmental Protection if
the facility was or was to be located in a health district whose board of
health was not approved by the Director to implement a construction and
demolition debris program.[1] After receipt of the application and other
required materials, the board of health or the Director, as applicable, had to
determine if the proposed facility or modification complied with standards
established under the Construction and Demolition Debris Law and rules adopted
by the Director. A license could be
issued with such terms and conditions as the board or Director found necessary
to ensure that the facility would comply with that Law and the rules and to
protect public health and safety and the environment. If an initial license was approved and after the commencement of
operations of a new or modified facility, the owner or operator of the facility
was required to annually renew its license.
(Sec. 3714.06.)
The act
replaces the requirement that a proposed new construction and demolition debris
facility or modification of an existing facility receive an initial license
with a requirement that a proposed new facility or an expansion of an existing
facility receive a permit to install (see "Establishment of
permit to install program," below). Facilities are still required under the act to receive an annual
operating license. The act also retains
authority for a board of health or the Director to issue a license with terms
and conditions that the board or Director finds necessary to ensure that the
applicable facility will comply with the Construction and Demolition Debris Law
and rules adopted under it and to protect public health and safety and the
environment. (Sec. 3714.06.)
The act
requires the Director of Environmental Protection to establish a program for
the issuance of permits to install for new construction and demolition debris
facilities not later than 180 days after the act's effective date (sec.
3714.051(A)(1)). The act defines
"new construction and demolition debris facility" to include an
existing facility that is proposing to expand the facility beyond the limits of
construction and demolition debris placement approved by a board of health or
the Director, as applicable, under the Construction and Demolition Debris Law
(sec. 3714.01(G)). On and after the
act's effective date, no person may establish a new construction and demolition
debris facility without first obtaining a permit to install issued by the board
of health of the health district in which the facility is or is to be located
or from the Director if the facility is or is to be located in a health
district that is not approved by the Director to implement a construction and
demolition debris program or if a board of health requests the Director to
issue the permit as discussed below (see "Application and permit
requirements," below) (sec. 3714.051(A)(2)).
In establishing
the program, the Director must adopt rules establishing standards and
procedures for the issuance of permits to install (sec. 3714.02(A)). The rules must include information that must
be included in the designs and plans required to be submitted with an
application for a permit (see "Application and permit requirements,"
below) and criteria for approving, disapproving, or requiring modification of
the designs and plans. In addition, the
rules are required to establish the information that must be included with an
application for a permit to install in addition to the information that is specified
in the act (see "Application and permit requirements,"
below). The rules also must establish
procedures for the issuance, denial, modification, transfer, suspension, and
revocation of permits to install and grounds for the denial, modification, suspension,
or revocation of permits. Finally, the
rules must establish a requirement that a person that is required to obtain
both a permit to install and a license for the operation of a facility obtain
both the permit and the license prior to operation, criteria for establishing
time periods after which a permit to install expires, and any other
requirements that the Director determines necessary in order to establish the
program. (Sec. 3714.02(A)(1) to (7).)
The act authorizes
the Director, the Director's authorized representative, a board of health, or
an authorized representative of the board to assist an applicant for a permit
during the permitting process by providing guidance and technical assistance
(sec. 3714.051(B)). Under the act, an
applicant must submit an application to a board of health or the Director, as
applicable, on a form that the Director prescribes. The applicant must include with the application all of the
following:
(1) The
name and address of the applicant, of all partners if the applicant is a
partnership or of all officers and directors if the applicant is a corporation,
and of any other person who has a right to control or in fact controls
management of the applicant or the selection of officers, directors, or
managers of the applicant;
(2) The
designs and plans for the construction and demolition debris facility that
include the location or proposed location of the facility, design and
construction plans and specifications, anticipated beginning and ending dates
for work performed, and any other related information that the Director
requires by rule;
(3) The
background information required under the act (see "Background
information," below);
(4) An
application fee of $2,000. If a board of
health collects the application fee, the board must deposit money from the fee
into the special fund of the health district created under continuing law for
the purpose of funding the district's construction and demolition debris
program. If the Director collects the
application fee, the Director must transmit money from the fee to the Treasurer
of State to be credited to the continuing Construction and Demolition Debris
Oversight Fund, which is used by the Director to implement the construction and
demolition debris program. Not later
than six months after a facility that is issued a permit to install begins
accepting construction and demolition debris for disposal, a board of health or
the Director, as applicable, must refund the application fee to the person that
submitted the application for the permit.
(5) Any other information required by the Director in
accordance with rules. (Sec.
3714.051(C)(1) to (5).)
A permit to install may be issued with terms and conditions that a
board of health or the Director, as applicable, finds necessary to ensure that
the facility will comply with the Construction and Demolition Debris Law and
rules adopted under it and to protect public health and safety and the
environment (sec. 3714.051(D)).
A permit
to install expires after a time period specified by the Director or board of
health, as applicable, in accordance with rules adopted under the act unless
the applicant has undertaken a continuing program of construction or has
entered into a binding contractual obligation to undertake and complete a
continuing program of construction within a reasonable time, in which case the
Director or board, as applicable, may extend the expiration date of a permit to
install upon request of the applicant (sec. 3714.051(E)). The Director or a board of health, as
applicable, may issue, deny, modify, suspend, or revoke a permit to install in
accordance with rules (sec. 3714.051(F)).
A board
of health must notify the Director of its receipt of an application for a
permit to install. A board, or its
authorized representative, may request the Director to review an application,
or part of an application, for a permit and also may request that the Director
issue or deny it when the board determines that additional expertise is
required. The Director must comply with
such a request. Upon a board of
health's issuance of a permit to install for a new construction and demolition
debris facility, the board must mail a copy of the permit to the Director together
with approved plans, specifications, and information regarding the
facility. (Secs. 3714.05 and
3714.051(G).)
As
indicated above, one of the items that must be included with an application for
a permit to install is information concerning the background of the owner or
operator[2] of the
facility. Under the act, that
background information must include all of the following:
(1) A
listing of all construction and demolition debris facilities or other waste
disposal facilities that the owner or operator of the proposed new facility or
a key employee of the owner or operator has operated or is operating in
Ohio. Under the act, "key employee" means
an individual employed by an applicant for a permit to install for, or by the
proposed transferee of a permit to install or license for, a construction and
demolition debris facility in a supervisory capacity or who is empowered to
make discretionary decisions with respect to the construction and demolition
debris operations of the applicant or transferee, but does not include an
employee who is exclusively engaged in the physical or mechanical collection,
transfer, transportation, storage, or disposal of construction and demolition
debris. If the applicant or transferee has entered into a contract with another
person to operate the facility that is the subject of the application or
transfer, "key employee" includes an employee of the contractor who
acts in a supervisory capacity or is empowered to make discretionary decisions
with respect to the operation of the facility.
(Sec. 3714.052(G).)
(2) A
listing of the construction and demolition debris facilities or other waste
disposal facilities that the owner or operator or a key employee of the owner
or operator has operated or is operating elsewhere in the United States together
with a listing of the construction and demolition debris facilities or other
waste disposal facilities that the owner or operator or a key employee of the
owner or operator has operated or is operating outside the United States;
(3) A
listing of all administrative enforcement orders issued to the owner or
operator or a key employee of the owner or operator, all civil actions in which
the owner or operator or a key employee of the owner or operator was determined
by the trier of fact to be liable in damages or was the subject of injunctive
relief or another type of civil relief, and all criminal actions in which the
owner or operator or a key employee of the owner or operator pleaded guilty or
was convicted, during the ten years immediately preceding the submission of the
application, in connection with any violation by the owner or operator or a key
employee of the owner or operator of an applicable state or federal law
pertaining to environmental protection or the environmental laws of another
country; and
(4) A
listing of all administrative enforcement orders, civil actions, or criminal
actions pending at the time of the submission of the application for a permit
to install in connection with a violation of any applicable state or federal
law or law of another country pertaining to environmental protection that was
alleged to have been committed by the owner or operator or a key employee of
the owner or operator. (Sec.
3714.052(A)(1) to (4).)
The
lists of construction and demolition debris facilities or other waste disposal
facilities operated by the owner or operator or a key employee of the owner or
operator within or outside Ohio or outside the United States must include all
such facilities operated by the owner or operator or a key employee of the owner
or operator during the ten-year period immediately preceding the submission of
the application (sec. 3714.052(A)).
If the
applicant for a permit to install has been involved in any prior activity
involving the operation of a construction and demolition debris facility or
other waste disposal facility, the Director or a board of health, as
applicable, may deny the application if the Director or board finds from the
application, the information submitted under the act, pertinent information
submitted to the Director or board, and other pertinent information obtained by
the Director or board at the Director's or board's discretion that the
applicant or any other person listed on the application, in the operation of
construction and demolition debris facilities or other waste disposal
facilities, has a history of substantial noncompliance with state and federal
laws pertaining to environmental protection or the environmental laws of
another country that indicates that the applicant lacks sufficient reliability,
expertise, and competence to operate the proposed new construction and
demolition debris facility in substantial compliance with the Construction and
Demolition Debris Law and rules adopted under it (sec. 3714.052(B)).
The act
establishes requirements for updating background information. Under the act, at the same time that an
application for an annual operation license is submitted, an owner or operator
of a construction and demolition debris facility that has submitted the initial
background information required under the act must submit to the Director or
board of health, as applicable, all information required to be submitted under
the act that has changed or been added since the issuance of the most recent
annual operation license for the facility.
If, during that period, there have been no changes in or additions to
that information, the owner or operator must submit to the Director or board an
affidavit stating that there have been no changes in or additions to that
information during that time period.
The Director or board may revoke the license for the facility if the
updated information indicates any of the reasons discussed above for the denial
of an application for a permit to install.
(Sec. 3714.052(C).)
A person to
whom a permit to install or a license for a construction and demolition debris
facility is proposed to be transferred (see "Transfer of permit to install
or license," below) also must submit to the Director or a
board of health, as applicable, the same background information that is
required to be submitted by an applicant for a permit to install not later than
120 days prior to the proposed acquisition of the facility by the
transferee. The Director or board of
health may deny the transfer of the permit or license, as applicable, if the
information regarding the transferee indicates any of the reasons discussed
above for the denial of an application for a permit to install. (Sec. 3714.052(D).)
When the
owner or operator of a facility employs a new key employee, the owner or operator
must submit or must require the new key employee to submit to the Director or a
board of health, as applicable, background information regarding the new key
employee. The Director or board may
revoke the permit to install or the license for the facility, as applicable, if
the information regarding the new key employee indicates any of the reasons
discussed above for the denial of an application for a permit to install. (Sec. 3714.052(E).)
The act authorizes an applicant for a permit to
install for, or a proposed transferee of a permit to install for, a
construction and demolition debris facility to choose to comply with the
requirements in the Solid, Infectious, and Hazardous Waste Law governing
background investigations in lieu of complying with the act's provisions
regarding the submission of background information. An applicant or transferee that so chooses must comply with the
background investigation requirements in that Law. The act states that for purposes of this provision in the act,
the requirements in the Solid, Infectious, and Hazardous Waste Law governing
background investigations are deemed to apply to applicants for permits to
install for, and proposed transferees of permits to install or licenses for,
construction and demolition debris facilities. The Director must provide
notice in writing to the applicable board of health that the applicant or
proposed transferee has complied with the background investigation requirements
of the Solid, Infectious, and Hazardous Waste Law and has sufficient
reliability, expertise, and competence to operate the construction and
demolition debris facility in substantial compliance with the Construction and
Demolition Debris Law and the rules adopted under it. (Sec. 3714.052(F).)
The act requires that not later than 60 days after the Director of
Environmental Protection or a board of health, as applicable, receives an
application for a permit to install a new construction and demolition debris
facility, the applicant must hold a public hearing in the township or municipal
corporation in which the facility or proposed facility is or is to be
located. At least 30 days prior to the
public hearing, the applicant must provide notice of the time, day, and location
of the public hearing in a newspaper of general circulation in the locality of
the facility or proposed facility and must mail a copy of the notice to the
Director or the board of health, whichever is applicable. Further, at least 30 days prior to the
public hearing, the applicant must provide notification of the public hearing
by certified mail to the owner of each parcel of real property that is adjacent
to the facility or proposed facility.
(Sec. 3714.053.)
The act makes changes in the Construction and Demolition Debris
Law that are necessary to conform that Law to the act's requirements related to
the issuance of permits to install. For
example, the act requires that an application for a license for the operation
of a new construction and demolition debris facility must be submitted prior to
operation of the new facility and states that the license is valid until the
time that the next annual license is required to be obtained for the facility
(sec. 3714.06(B)). Other changes involve
the addition of references to permits to install in statutes dealing with
exemptions from the Construction and Demolition Debris Law, the authority of
boards of health to implement that Law, and enforcement of that Law (secs.
3714.04, 3714.05, 3714.09. 3714.11, 3714.12, and 3714.13).
Law somewhat modified by the act authorizes a person who has received a license, upon sale or disposition of the facility, with the consent of the board of health or the Director of Environmental Protection, as appropriate, to have the license transferred to another person. The act authorizes a person to have the license as well as a permit to install for the facility transferred to another person, but only with the approval of the board or the Director. The act authorizes the board or Director to disapprove the transfer of the permit or license only for the reasons for which a permit to install may be denied under the act's background investigation provisions (see above). (Sec. 3714.06(B).)
The act
requires the Director to adopt rules establishing standards and procedures
governing the modification of operation licenses and specifies that a license may be modified in accordance with
those rules (secs. 3714.02(L) and 3714.06(D)).
Law largely
retained by the act generally prohibits the Director or a board of health from
issuing a license for the establishment and operation of a construction and
demolition debris facility within certain flood-prone areas in a 100-year flood
plain of a watercourse and within the boundaries of sole source aquifers. For purposes of determining the location of
the 100-year flood plain of a watercourse, if no maps have been prepared, the
boundaries of the 100-year flood plain must be determined based upon a design
storm of seven inches of precipitation in 24 hours and upon standard
methodologies set forth in "Urban Hydrology for Small Watersheds" and
section 4 of the "National Engineering Hydrology Handbook" of the
Soil Conservation Service of the United States Department of Agriculture. The act revises the requirement by
eliminating "of a watercourse" for purposes of determining a 100-year
flood plain. In addition, the act
eliminates "a design storm of seven inches of precipitation in 24
hours." Thus, the act provides
that the boundaries of a 100-year flood plain must be determined based upon
standard methodologies set forth in the Soil Conservation Service documents
specified above. (Secs. 3714.03(B)(1)
and 3714.04.)
The act also prohibits
the Director or a board from issuing a permit to install a new construction and
demolition debris facility when the horizontal limits of construction and
demolition debris placement at the new facility are proposed to be located in
any of the following locations:
(1) Within
100 feet of a perennial stream as defined by the United States Geological
Survey seven and one-half minute quadrangle map or within 100 feet of a
category 3 wetland. The act defines
"category 3 wetland" to mean a wetland that supports superior habitat
or hydrological or recreational functions as determined by an appropriate
wetland evaluation methodology acceptable to the Director. "Category 3 wetland" includes a
wetland with high levels of diversity, a high proportion of native species, and
high functional values and includes, but is not limited to, a wetland that
contains or provides habitat for threatened or endangered species. "Category 3 wetland" may include
high quality forested wetlands, including old growth forested wetlands, mature
forested riparian wetlands, vernal pools, bogs, fens, and wetlands that are
scarce regionally. (Sec.
3714.03(A)(2).)
(2) Within
100 feet of the facility's property line;
(3) Within
500 feet of a residential or public water supply well. However, there are three circumstances in
which this siting requirement does not apply regarding a residential well. The first is if the well is controlled by
the owner or operator of the construction and demolition debris facility. The second is if the well is hydrologically
separated from the horizontal limits of construction and demolition debris
placement. The third is if the well is
at least 300 feet upgradient from the horizontal limits of construction and demolition
debris placement and the siting requirements related to isolation distances
from uppermost aquifer systems (see below) do not prohibit the issuance of the
permit to install.
(4) Within
500 feet of a local park, a state park established or dedicated under the
Division of Parks and Recreation Law, a state park purchase area established
under that Law, a national recreation area, any unit of the national park
system, or any property that lies within the boundaries of a national park or
recreation area, but that has not been acquired or is not administered by the
Secretary of the United States Department of the Interior, located in Ohio, or
any area located in this state that is recommended for study for potential
inclusion in the national park system in accordance with federal law;
(5) Within
500 feet of a natural area, any area established by the Department of Natural
Resources as a state wildlife area under the Division of Wildlife Law and rules
adopted under it, any area that is formally dedicated as a nature preserve
under the Division of Natural Areas and Preserves Law, or any area designated
by the United States Department of the Interior as a national wildlife
refuge. The act defines "natural
area" as either of the following:
(1) an area designated by the Director of Natural Resources as a wild,
scenic, or recreational river under the Division of Natural Areas and Preserves
Law, or (2) an area designated by the United States Department of the Interior
as a national wild, scenic, or recreational river (sec. 3714.03(A)(3)).
(6) Within
500 feet of a lake or reservoir of one acre or more that is hydrogeologically
connected to ground water. A lake or
reservoir does not include a body of water constructed and used for purposes of
surface water drainage or sediment control.
(7) Within 500 feet of a state forest purchased or otherwise acquired under the Division of Forestry Law;
(8) Within 500 feet of land that is placed on the state registry of historic landmarks; and
(9) Within 500
feet of an occupied dwelling unless written permission is given by the owner of
the dwelling. Under the act,
"occupied dwelling" means a
residential dwelling and also includes a place of worship as defined in the
Child Day Care Law, a child day-care center as defined in that Law, a hospital
as defined in the Hospital Law, a nursing home as defined in that Law, a
school, and a restaurant or other eating establishment. "Occupied dwelling" does not
include a dwelling owned or controlled by the owner or operator of a
construction and demolition debris facility to which the siting criteria
established under the act are being applied.
"Residential dwelling" means a building used or intended to be
used in whole or in part as a personal residence by the owner, part-time owner,
or lessee of the building or any person authorized by the owner, part-time
owner, or lessee to use the building as a personal residence. (Sec. 3714.03(A)(4) and (5) and (C).)
The act also
prohibits the Director or a board from issuing a permit to install a new
construction and demolition debris facility when the limits of construction and
demolition debris placement at the new facility are proposed to have an
isolation distance of less than five feet from the uppermost aquifer system
that consists of material that has a maximum hydraulic conductivity of 1 x 10-5
cm/sec and all of the geologic material comprising the isolation distance
has a hydraulic conductivity equivalent to or less than 1 x 10-6 cm/sec
(sec. 3714.03(D)). The act defines
"aquifer system" as one or more geologic units or formations that are
wholly or partially saturated with water and are capable of storing,
transmitting, and yielding significant amounts of water to wells or springs
(sec. 3714.03(A)(1)).
In addition, the act prohibits the Director or a board from issuing a permit to install a new construction and demolition debris facility when the road that is designated by the owner or operator as the main hauling road at the facility to and from the limits of construction and demolition debris placement is proposed to be located within 500 feet of an occupied dwelling unless written permission is given by the owner of the occupied dwelling (see above) (sec. 3714.03(E)).
Finally,
neither the Director nor any board of health is permitted to issue a permit to
install to establish a new construction and demolition debris facility unless
the new facility will have all of the following:
(1) Access roads that must be constructed in a manner that allows use in all weather conditions and will withstand the anticipated degree of use and minimize erosion and generation of dust;
(2) Surface water drainage and sediment controls that are required by the Director; and
(3) If the facility is proposed to be located in an area in which an applicable zoning resolution allows residential construction, vegetated earthen berms or an equivalent barrier with a minimum height of six feet separating the facility from adjoining property. (Sec. 3714.03(F).)
The act
provides that siting criteria must be applied to an application for a permit to
install at the time that the application is submitted to the Director or a
board of health, as applicable. The act
declares that circumstances related to the siting criteria that change after the
application is submitted must not be considered in approving or disapproving
the application. (Sec. 3714.03(G)(1).)
In addition,
the act declares that the new siting criteria established by the act do not
apply to an expansion of a construction and demolition debris facility that was
in operation prior to the effective date of the act onto property within the
property boundaries identified in the application for the initial license for
that facility or any subsequent license issued for that facility up to and
including the license issued for that facility for calendar year 2005. The siting criteria established prior to the
effective date of the act apply to such an expansion. (Sec. 3714.03(G)(2).)
Certain
provisions of the act do not apply to applications for licenses that were
pending prior to the act's effective date and the effective date of rules to be
adopted under the act. Which provisions
apply depends on the timing of the submission of an application for such a
license.
Under the
act, an application for a license to establish or modify a construction and
demolition debris facility submitted to a board of health or the Director of
Environmental Protection, as applicable, prior to July 1, 2005, must be
reviewed and the license must be issued or denied in accordance with the
provisions of the Construction and Demolition Debris Law as they existed on
July 1, 2005, if all of the following apply to the applicant for the license:
(1) The applicant has acquired an interest in the property on which the facility will be located on or before May 1, 2005;
(2) The applicant has begun a
hydrogeologic investigation pursuant to a specified rule of the Environmental
Protection Agency prior to submitting
the application;
(3) The applicant has begun the engineering plans for the facility prior to submitting the application; and
(4) The application submitted by the applicant would have been determined to be complete if a moratorium had not been in effect.
The Director
must determine if the above provisions apply to an applicant within 45 days
after receiving an applicant's request for such a determination. (Section 3(A).)
An
application for a license to establish or modify a construction and demolition
debris facility submitted to a board of health or the Director, as applicable,
on or after July 1, 2005, but prior to or on December 31, 2005, must be
reviewed and the license must be issued or denied in accordance with the
provisions of the Construction and Demolition Debris Law as they existed on
July 1, 2005. However, unless the facility
is exempt from the new siting criteria because the facility is expanding within
previously defined property boundaries (see above), a board of health or the
Director, as applicable, may apply any of the siting criteria established by
the act to such an application and may deny the application if the facility
that is the subject of the application will not comply with that siting
criterion. (Section 3(B).)
Finally,
beginning January 1, 2006, and until the effective date of the rules to be
adopted under the act, a person may submit an application to a board of health
or the Director, as applicable, for a license to establish or modify a
construction and demolition debris facility, and such an application must be
reviewed and the license must be issued or denied in accordance with the
provisions of the Construction and Demolition Debris Law as they existed on
July 1, 2005. However, unless the
facility is exempt from the new siting criteria because the facility is expanding
within previously defined property boundaries (see above), a board of health or
the Director, as applicable, must apply all of the siting criteria established
in the act to such an application and must deny the application if the facility
that is the subject of the application will not comply with any of those siting
criteria. In addition, the applicant
for the license must submit the background information that is required from
applicants for permits to install under the act (see above). An application for a license may be denied
if the background information regarding the applicant indicates any of the
reasons for which an application for a permit to install may be denied. (Section 3(C).)
Continuing law
requires the Director to adopt rules establishing requirements respecting
written, narrative plans for the operation of construction and demolition
debris facilities. The act specifies
that the rules must require the owner or operator of a facility to use best
management practices. Continuing law
also requires the Director to adopt rules establishing requirements respecting
contingency plans for effective action in response to fire or explosion at a
facility. The act requires the rules
related to contingency plans also to address effective action in response to
hydrogen sulfide or other gases created by the operation of a facility that
pose a nuisance, cause an offensive odor, or pose a threat to public health or
safety or the environment. The rules
adopted under the act must require the operation plans that are discussed above
to include those contingency plans.
(Sec. 3714.02(G) and (H).)
In addition, the
act requires a person who submits an application for a license to operate a
construction and demolition debris facility to submit with the application the
plans for the operation of the facility that are required in rules. The owner or operator of the facility then
must submit any necessary updates to the plans for the operation of the
facility as required in rules when submitting an application for an annual
license for the continued operation of the facility. (Sec. 3714.061(A).) The
act requires a board of health to submit a copy of the plans for operation of a
facility or any necessary plan updates, as applicable, to the Director upon the
issuance by the board of a license for the operation of the facility (sec.
3714.06(C)).
Under the act, a person who submits an application for a license to operate a construction and demolition debris facility must provide a copy of the contingency plans required in rules to the fire department that would respond to the facility. The plans must be submitted to the fire department at the time that the application for the license is submitted. In addition, the owner or operator of the facility must submit any necessary updates to the plans at the time that the owner or operator submits an application for an annual license for continued operation of the facility. (Sec. 3714.061(B).)
Continuing law requires the Director to adopt rules establishing requirements for the installation of ground water monitoring wells and the monitoring of ground water quality at any facility where the operation of the facility threatens to contaminate ground water. The act establishes additional requirements that must be included in the rules governing ground water monitoring. Specifically, the act provides that the rules must require that ground water monitoring be capable of determining impacts resulting from the operation of construction and demolition debris facilities. The rules also must include provisions for ground water assessment and corrective actions for impacts to ground water. Further, the rules must require that the owner or operator of a construction and demolition debris facility submit a monitoring report to the Director or a board of health, as applicable, that has been prepared by a qualified ground water scientist and that includes all of the following:
(1) A determination of any impacts to ground water from the migration of contaminants from the facility;
(2) A list of the contaminants from the facility that may be causing contamination of ground water; and
(3) Recommendations for actions, if any are necessary, that should be taken to investigate or remediate the source of any ground water contamination. (Sec. 3714.02(E).)
The act defines "qualified ground water scientist" to mean a scientist or engineer who has received a baccalaureate or post-graduate degree in the natural sciences or engineering and has at least five years of relevant experience in ground water hydrogeology and related fields that enable that individual to make sound professional judgments regarding ground water monitoring, contaminant fate and transport, and corrective measures (sec. 3704.01(J)).
Former law did not include a specific requirement that the Director adopt rules governing the monitoring and sampling of leachate.[3] The act requires the Director to adopt rules establishing requirements for the monitoring and sampling of leachate. The rules must include all of the following:
(1) A requirement that the owner or operator of a construction and demolition debris facility provide for sampling of leachate at least annually. However, the rules must require that if leachate is recirculated through a facility, the leachate be sampled at least every calendar quarter.
(2) A requirement that the owner or operator of a facility sample for at least 77 parameters that the Director must establish by rule. The 77 parameters must include arsenic, copper, and chromium.
(3) Requirements governing facilities that do not have a system for sampling leachate. The rules must require that the owner or operator of such a facility monitor ground water for the same parameters required for leachate monitoring and sampling.
(4) A requirement that a facility that monitors ground water and leachate add to the parameters monitored by the ground water monitoring system any parameter that is detected through the monitoring of leachate; and
(5) Requirements
governing the reporting of leachate sampling data. The rules must require that reports be submitted to the Director
and the applicable board of health.
(Sec. 3714.02(F).)
Under the act, the new rules related to ground water and leachate monitoring and sampling apply to all new construction and demolition debris facilities for which a permit to install is required on and after the effective date of the act. With respect to a facility that is licensed and operating on the effective date of the act: if the facility does not have a ground water monitoring or leachate monitoring system, the facility is not required to comply with ground water and leachate monitoring and sampling rules; if the facility has a ground water monitoring system, but not a leachate monitoring system, the facility must comply only with rules related to ground water monitoring and sampling; and if the facility has a leachate monitoring system, but not a ground water monitoring system, the facility must comply only with rules related to leachate monitoring and sampling. (Sec. 3714.02.)
Law largely unchanged by the act authorizes the Director to adopt rules establishing a fee of not more than 5¢ per cubic yard or 10¢ per ton on the disposal of construction and demolition debris. This fee is in addition to the general disposal fees otherwise established by law. Proceeds collected by the Director or a board of health, as applicable, must be used by the Director or board to conduct ground water monitoring at construction and demolition debris facilities through the installation of ground water monitoring wells and the performance of ground water sampling and laboratory analysis. Such ground water monitoring may be conducted only at certain facilities in operation before April 15, 2005. The act precludes the Director or a board, as applicable, from paying for the installation of ground water monitoring wells, ground water sampling, or the laboratory analysis of ground water samples incurred by a construction and demolition debris facility to comply with applicable rules or with a permit to install issued under the act. (Sec. 3714.071.)
Law modified in part by the act requires the Director of Environmental Protection to adopt rules establishing requirements for the closure of facilities and requirements governing financial assurance for their closure. The rules regarding closure must include minimum requirements for the closure of all facilities and additional requirements that are reasonably related to the location of a facility and the type and quantity of materials disposed of in it (sec. 3714.02(I)). Concerning financial assurance, the rules are required to include provisions requiring the owner or operator of a facility, before being issued a license for the facility, to submit a surety bond, a letter of credit, or other acceptable financial assurance in an amount equal to the estimated costs for closure of those portions of the facility that have been, are being, or are to be used for the disposal of construction and demolition debris. The costs are required to be estimated in the closure plan for the facility approved by the board of health of the health district in which the facility is or is to be located or the Director if the facility is located in a health district that is not approved to implement a construction and demolition debris program. (Sec. 3714.02(H).) There was no requirement in former law that the Director adopt rules related to post-closure care.
The act retains the requirements in continuing law regarding the rules governing closure. It adds provisions that specify that the rules must require an owner or operator of a facility, upon the closure of the facility, to file in the office of the county recorder of the county in which the facility is located a notice that the property was previously used as a construction and demolition debris facility. The rules must require the notice to be filed in the same manner as a deed to the property and to include an engineering drawing attachment showing the physical locations of debris placement, an indication of the volumes of debris, and an indication of the depth of the final cover material. (Sec. 3714.02(J).)
In addition, the act revises the requirements concerning financial assurance for the closure of facilities. The act generally eliminates the provisions of law that required financial assurance for the closure of a facility to be in an amount equal to the estimated costs for closure as set forth in the facility's closure plan. Instead, the act requires the Director to adopt rules that require the owner or operator of a facility, before being issued an initial license for the facility, to submit a surety bond, a letter of credit, or other acceptable financial assurance in an amount determined by the Director or the appropriate board of health, as applicable. The rules must include a list of the activities for which financial assurance may be required. The rules also must allow the Director or board of health to adjust the amount of the surety bond, letter of credit, or other financial assurance in conjunction with the issuance of an annual license. However, the act specifies that, under the rules, the amount of the surety bond, letter of credit, or other acceptable financial assurance for the closure of a facility must be not less than $13,000 per acre of land that has been or is being used for the disposal of construction and demolition debris. The rules must require an explanation of the rationale for financial assurance amounts exceeding $13,000 per acre. (Sec. 3714.02(I)(1).)
The act also requires the Director to adopt rules establishing requirements for the post-closure care of construction and demolition debris facilities for a period of five years after closure of a facility as well as rules governing financial assurance requirements for the post-closure care of facilities. The rules establishing post-closure care requirements must require that the post-closure care period may be extended by order of the applicable board of health, the Director, or a court of competent jurisdiction if conditions at a facility are impacting public health or safety or the environment or if ground water assessment and corrective measures are required to be conducted at the facility under rules adopted by the Director. In addition, the act creates two exceptions to the five-year post-closure care period by requiring the rules to specify both of the following:
(1) With respect to a facility that permanently ceases acceptance of construction and demolition debris in calendar year 2006, the post-closure care and post-closure care financial assurance requirements do not apply, provided that the owner or operator of the facility gives written notice of the date of the cessation to the applicable board of health or the Director, the owner or operator of the facility does not submit a subsequent application for a license renewal for the facility after that cessation, and no order was issued by the applicable board of health, the Director, or a court of competent jurisdiction governing the post‑closure care of and post-closure financial assurance for that facility prior to the date specified in the written notice; and
(2) With respect to a facility that permanently ceases acceptance of construction and demolition debris in calendar year 2007, the required period of time for post-closure care and post-closure care financial assurance is one year after the closure of the facility, provided that the owner or operator of the facility gives written notice of the date of the cessation to the applicable board of health or the Director, the owner or operator does not submit a subsequent application for a license renewal for the facility after that cessation, and no order was issued by the applicable board of health, the Director, or a court of competent jurisdiction governing the post-closure care of and post-closure financial assurance for that facility prior to the date specified in the written notice.
The act states that the rules related to the post-closure care period do not limit the authority of the Director, a board of health, or a court of competent jurisdiction to issue an order under any other applicable provision of Ohio law (sec. 3714.02(K)).
With respect to the financial assurance requirements, the act requires the rules to address the maintenance of a facility, continuation of any required monitoring systems, and performance and maintenance of any specific requirements established in rules relating to post-closure care or through a permit, license, or order of the Director. The rules also must allow the Director or board of health, as applicable, to determine the amount of a surety bond, a letter of credit, or other acceptable financial assurance for the post-closure care of a facility based on a required cost estimate for the post-closure care of the facility. The rules must require that the owner or operator of a facility provide post-closure care financial assurance for a period of five years after the closure of a facility. However, the rules must stipulate that post-closure financial assurance may be extended beyond the five-year period if the extension of the post-closure care period is required. (Sec. 3714.02(I)(2).)
Under
the act, a construction and demolition debris facility cannot accept pulverized
debris (sec. 3714.081(A)).
"Pulverized debris" is defined by the act to mean a load of
debris that, after demolition has occurred, but prior to acceptance of the load
of debris for disposal, has been shredded, crushed, ground, or otherwise
rendered to such an extent that the load of debris is unidentifiable as
construction and demolition debris (sec. 3714.01(I)).
Under
the act, the board of health of a health district in which a construction and
demolition debris facility is located, the Director, or an authorized
representative of either may request the removal of pulverized debris that has
been brought to the construction and demolition debris facility. A board, the Director, or an
authorized representative of either must make such a request when the
pulverized debris is at the unloading zone of the facility designated under
rules and not after the debris has been disposed of on the working face[4]
of the facility. Upon the
receipt of such a request, the owner or operator of the facility must comply
with the act's provisions regarding rejected shipments (see "Rejected
debris shipments," below) and do one of the following:
(1) Immediately
cause the pulverized debris to be removed from the facility; or
(2) Store
the pulverized debris at a location at the facility where construction and
demolition debris is not disposed of for not more than ten days after the
receipt of a request to remove the debris from the facility. Not later than the end of the ten-day period,
the owner or operator must cause the pulverized debris to be removed from the
facility. (Sec. 3714.081(B).)
Under the act, a construction and demolition
debris facility may request a transfer facility to certify that material that
is transferred from the transfer facility to the construction and demolition
debris facility is not off-specification material, hazardous waste, solid
wastes, infectious wastes, or low-level radioactive waste. As used in the act, "hazardous waste,"
"solid wastes," and "infectious wastes" have the same
meanings as in the Solid, Infectious, and Hazardous Waste Law. (Sec. 3714.082(A).) The act defines "transfer
facility" to mean a site, location, tract of land, installation, or
building that is primarily used or intended to be used for the purpose of
transferring construction and demolition debris that was generated off the
premises of the facility from vehicles or containers into other vehicles or
containers for transportation to a construction and demolition debris facility
(sec. 3714.01(L)). It requires the
Director to adopt rules establishing procedures and requirements governing
certification of construction and demolition debris by transfer facilities
(sec. 3714.02(M)).
With respect to
material that is transferred to a construction and demolition debris facility
by a railroad that is regulated under federal law, a construction and
demolition debris facility may request the railroad to provide a bill of
lading, or a copy of a bill of lading, from the shipper of the material or may
request the railroad to provide written information indicating that the
railroad did not process or add to the material (sec.
3714.082(B)).
Under
the act, if the owner or operator of a construction and demolition debris
facility rejects a load of debris that has been accepted at the unloading zone
of the facility because the load is not eligible for disposal at the facility
under the Construction and Demolition Debris Law and rules adopted under it,
including requirements related to pulverized debris (see above), the owner or
operator must notify the Director or a board of health, as applicable, of the
rejection of the load. The notification
must be made in accordance with rules adopted under the act (see below) and
must include the date and time that the load was rejected, the license plate
number of the vehicle transporting the rejected load as well as an indication
of the state of origin of the vehicle, the name of the transporter or shipper
of the load, if ascertainable, and the reason for rejecting the load. After rejecting a load, the
owner or operator must give the transporter or shipper of the load, as
applicable, instructions detailing procedures to be followed regarding the
rejected load. The instructions must be
on a form prescribed by the Director.
(Sec. 3714.083(A).)
A
transporter or shipper of a rejected load must notify the Director or board of
the ultimate disposition of the load after the load's rejection. The notification must be made in accordance
with rules (see below) and must include the date and time that the load was
ultimately disposed of after its rejection, the location of the disposal, and
the name of the owner or operator of the facility that accepted the load for
disposal. (Sec. 3714.083(B).)
The
Director is required to adopt rules governing the provision of notification by
owners and operators of construction and demolition debris facilities and the
provision of notification by transporters and shippers (sec. 3714.02(N)).
Under
continuing law, the Director or the board of health having territorial
jurisdiction generally may provide by order for exemptions from any provision
of the Construction and Demolition Debris Law or rules adopted under it. The Director or board may provide an
exemption to any person disposing of or proposing to dispose of construction
and demolition debris in such quantities or under such circumstances that, in
the determination of the Director or board, are unlikely to adversely affect
the public health or safety or the environment or to create a fire hazard. Exemptions cannot be granted from certain
provisions of the Law related to locating a facility within the boundaries of a
100-year flood plain or a sole source aquifer or to the disposal of asbestos or
asbestos-containing materials or products.
(Sec. 3714.04(A).)
The act
adds a requirement that, except in the event of a natural disaster or public
health emergency declared by the Governor or the Director of Health, before a
board of health issues an order that exempts a person disposing of or proposing
to dispose of construction and demolition debris, the board must provide
written notice to the Director of Environmental Protection of the board's
intention to grant an exemption. The
notice must contain a description of the facts surrounding the proposed
exemption and any other information that the Director may request. Not later than 30 days after receipt of the
notice, the Director must provide written comment to the board of health
regarding the proposed exemption. The
written comment must be considered by the board of health prior to the board's
issuance of an order granting the exemption.
(Sec. 3714.04(B).)
Under the act, the Director, in consultation with boards of health and a statewide association representing construction and demolition debris facilities, is required to establish a program for the certification of operators of construction and demolition debris facilities and must establish continuing education training requirements for those operators as part of the certification program (sec. 3714.062(A)). To establish the program, the Director must adopt rules governing the certification and training of operators of construction and demolition debris facilities (sec. 3714.02(O)).
The act requires
the program for the certification of operators, including the continuing
education training requirements, to include instruction in and to emphasize, at
a minimum, the laws and best management practices governing construction and
demolition debris facilities and disposal of construction and demolition debris (sec. 3714.062(B)). An operator of a construction and
demolition debris facility must successfully complete a minimum of ten hours of
continuing education training each calendar year (sec. 3714.062(D)). The Director must accredit educational
programs and approve statewide associations representing construction and
demolition debris facilities to provide continuing education training for
operators of construction and demolition debris facilities. The educational programs and associations
must meet the standards established in rules adopted under the act. For purposes of the act, educational
programs that are specific to construction and demolition debris facilities and
are conducted by the Director or the Director's authorized representatives are
accredited continuing education training programs. (Sec. 3714.062(C).)
The act requires the Director to establish and maintain a database or databases composed of public information, including, but not limited to, the record made of the annual inspection of each construction and demolition debris facility required under continuing law, information from the annual survey of each health district made by the Director under continuing law, and ground water and leachate data collected in accordance with rules adopted under the act (see above). The database or databases must be stored in such a manner that they are easily available for sharing with health districts and all other interested persons. (Sec. 3714.20.)
Continuing law establishes the Environmental Protection Remediation Fund consisting of money set aside by the state for the cleanup and remediation of the Ashtabula River, moneys collected from settlements made by the Director of Environmental Protection related to actions brought under the Solid, Infectious, and Hazardous Waste Law and the Water Pollution Control Law, and moneys received under the federal Comprehensive Environmental Response, Compensation, and Liability Act. Under law slightly modified by the act, money in the Fund must be used only for the purpose of remediating conditions at a hazardous waste facility, a solid waste facility, or other locations at which the Director has reason to believe that there is a substantial threat to public health or safety or the environment. The act also allows money collected from settlements made by the Director under the Construction and Demolition Debris Law to be credited to the Fund and allows money in the Fund to be used for remediation activities at a construction and demolition debris facility. (Sec. 3734.281.)
Under the act, falsification of any material information that is required to be submitted to a board of health or the Director with respect to a permit to install or a license issued under the Construction and Demolition Debris Law or an application for such a permit or license, or falsification of any other material information that is required to be submitted to a board or the Director under that Law and rules adopted under it, is grounds for the denial, suspension, or revocation of a permit to install or a license issued under that Law (sec. 3714.101).
Ongoing law levies a disposal fee on the disposal of construction and demolition debris at a construction and demolition debris facility or a solid waste facility and requires the proceeds of the fee to be used by local boards of health and the Director of Environmental Protection to implement the Construction and Demolition Debris Law and rules adopted under it. The fee is levied at a rate of 30¢ per cubic yard or 60¢ per ton. In addition, continuing law authorizes a municipal corporation or township in which a facility is located to appropriate up to 4¢ per cubic yard or up to 8¢ per ton of the disposal fee to be used by the municipal corporation or township to pay for the costs of maintaining roads and other public facilities and of providing emergency and other public services. The act retains those provisions, but requires the Director to adopt rules establishing requirements for prorating the amount of the fee that may be appropriated by a municipal corporation or township in which only a portion of a construction and demolition debris facility is located within the territorial boundaries of the municipal corporation or township. (Sec. 3714.07(C).)
Law unchanged by the act levies additional fees on the disposal of construction and demolition debris other than the fee discussed above and requires the proceeds of the fees to be credited to the Soil and Water Conservation District Assistance Fund and the Recycling and Litter Prevention Fund. Continuing law also establishes procedures for the collection and payment of the fees by the owner or operator of a construction and demolition debris facility or a solid waste facility. The act adds provisions authorizing the owner or operator to enter into an agreement with the Director of Environmental Protection or a board of health for the quarterly payment of the disposal fees and requires a board of health or the Director to transmit money from the fee to the Treasurer of State not later than 45 days after receipt of the money to be credited to the appropriate Fund. (Sec. 3714.073(B).)
Ongoing law allows any person who was a party before the Director of Environmental Protection to appeal to the Environmental Review Appeals Commission for an order vacating or modifying the action of the Director or a local board of health or ordering the Director or board of health to perform an act. The act clarifies that the Director may appeal an action of a local board of health conducted under the Construction and Demolition Debris Law or the Solid, Infectious, and Hazardous Waste Law for an order vacating or modifying the action of the board or may appeal for an order requiring the local board of health to perform an act. (Secs. 3745.04(C) and 3745.06.)
Law retained by the act confines the Commission to the record as certified to it by the Director if an adjudication hearing was conducted by the Director under the Administrative Procedure Act. The act also confines the Commission to the record certified to it by a board of health if the board conducted an adjudication hearing. (Sec. 3745.05.) In addition, law retained by the act authorizes the Commission to grant a request for admission of additional newly discovered evidence that could not have been ascertained with reasonable diligence prior to the adjudication hearing before the Director. The act also includes requests for the admission of newly discovered evidence that could not have been ascertained with reasonable diligence prior to the adjudication hearing before a board of health. (Sec. 3745.05.) Finally, law retained by the act requires the Commission to conduct a hearing de novo on the appeal if no adjudication hearing was conducted by the Director in accordance with the Administrative Procedure Act. The act also requires the Commission to conduct a hearing de novo on appeal if no adjudication hearing was conducted by a board of health. (Sec. 3745.05.)
Ongoing law levies fees on the disposal of solid waste and requires the fees to be collected by the owner or operator of a solid waste facility and forwarded to the Director of Environmental Protection. An owner or operator of a solid waste facility may request a refund or credit of fees that have not been paid to the owner or operator. Such a request is valid only if the fees have not been collected by the owner or operator, have become a debt that has become worthless or uncollectable for a period of six months or more, and may be claimed as a deduction, including a deduction claimed if the owner or operator keeps accounts on an accrual basis, under the United States Internal Revenue Code. A request for a refund or credit must be made in writing, on a form prescribed by the Director, and must be supported by evidence that may be required in rules adopted by the Director. Under prior law, the Director was authorized to grant a refund or permit a credit of the fees. The act instead requires the Director to grant a refund or permit a credit of the fees if the written request and evidence submitted with it indicate that a refund or credit is warranted. (Sec. 3734.57(A).)
HISTORY
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ACTION |
DATE |
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Introduced |
10-25-05 |
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Reported, H. Economic Development & Environment |
12-08-05 |
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Passed House (91-3) |
12-13-05 |
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Passed Senate (32-0) |
12-14-05 |
05-hb397-126.doc/kl
[1] Law unchanged by the act requires the Director of Environmental Protection to establish a list of health districts that are approved to license construction and demolition debris facilities and implement a construction and demolition debris program (sec. 3714.09).
[2] The act requires the Director of Environmental Protection to adopt rules establishing definitions of "owner" and "operator" for purposes of the Construction and Demolition Debris Law (sec. 3714.02(P)).
[3] Presumably, any requirements in rules that were adopted prior to the act and that were related to leachate monitoring or sampling were adopted in accordance with general rule making authority in the Construction and Demolition Debris Law that authorizes the Director to adopt rules that ensure that construction and demolition debris facilities will not cause or contribute to air or water pollution. (Sec. 3714.02.)
[4] Under law unchanged by the act, "working face" is defined to mean the portion of a construction and demolition debris facility where construction and demolition debris is placed for final disposal (sec. 3714.021, not in the act).