Ohio Administrative Code
Title 3745 - Ohio Environmental Protection Agency
Chapter 3745-300 - Voluntary Action Program
Section 3745-300-02 - Eligibility for participation in the voluntary action program
Universal Citation: OH Admin Code 3745-300-02
Current through all regulations passed and filed through September 16, 2024
[Comment: For dates of non-regulatory government publications, publications of recognized organizations and associations, federal rules, and federal statutory provisions referenced in this rule, see rule 3745-300-15 of the Administrative Code titled "Incorporation by reference - voluntary action program."]
(A) Applicability. Chapter 3746. of the Revised Code and this chapter apply to only the investigation, identification and remediation of hazardous substances or petroleum for property which is eligible for the voluntary action program. All property is eligible for the voluntary action program except as provided in this rule .
(B) Exceptions to eligibility. A property, that meets the description of one or more of paragraphs (B)(1) to (B)(8) of this rule is ineligible for participation in the voluntary action program. The application of this paragraph to a portion of a property does not preclude participation in the voluntary action program of other portions of a property to which paragraphs (B)(1) to (B)(8) of this rule do not apply.
(1)
National priorities list sites. Any property identified on the national
priorities list, pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act, and regulations adopted thereunder.
(2) Properties subject to the underground
injection control program. Any property which is subject to requirements for site assessment, removal,
or remediation regarding class I, II, III, and IV
underground injection control wells, pursuant to the Safe Drinking Water
Act and the
regulations adopted thereunder, or Chapter 6111. of the Revised Code and rules
adopted thereunder.
Any property on which a class V underground injection control well is located is eligible for the voluntary action program if such property is not the subject of an order or permit that requires site assessment, removal, or remediation of hazardous substances or petroleum.
(3)
Properties subject to federal or state corrective action permit obligations.
Any property where corrective action
is required, pursuant to a federal or a state
permit issued under the Resource Conservation and Recovery Act
, and the regulations adopted
thereunder, or Chapter 3734. of the Revised Code and rules adopted
thereunder, as applicable.
(4) Properties subject to federal
enforcement. Any property that is the subject of a federal enforcement action
which requires site assessment, removal, or remedial activities, pursuant to
any federal laws and regulations, including, without limitation, the federal
laws provided in division (A) of section
3746.02 of the Revised Code. For
the purposes of this paragraph, "federal enforcement action" includes but is
not limited to the issuance of administrative or judicial orders, injunctions,
and consent decrees.
(5) Closure
required of hazardous waste or solid waste
facility. Any property where closure of a hazardous waste facility or a
solid waste facility is required .
(a) "Solid waste facility," for purposes of
this paragraph, includes any facility as defined in rule
3745-27-01
or 3745-500-02 of
the Administrative Code.
"Property where closure of a solid waste facility is required" includes the
following:
(i) Any solid waste facility for
which a license, plan approval, permit-to-install, registration, or other
authorization has been issued pursuant to Chapter 3734. of the Revised Code and
rules adopted thereunder.
(ii) Any
solid waste facility, for which closure activities have been completed in
accordance with Chapter 3734. of the Revised Code, during the term of any
applicable post-closure care period required by Chapters 3745-27, 3745-29,
and 3745-30 of the Administrative Code.
(b) For the purposes of this rule, "property
where closure of a hazardous waste facility is required" includes the
following:
(i) Those portions of
property on which hazardous waste
generator closure of any accumulation area is required pursuant to Chapter
3745-52 of the Administrative Code.
(ii) Those portions of
property on which "closure" of a
"hazardous waste management unit" is required under Chapter 3734. of the
Revised Code, as those terms are defined in section
3734.01 of the Revised Code, and
rule
3745-50-10
of the Administrative Code, respectively, regardless of whether
or not a hazardous waste facility installation
and operation permit has been issued. Properties on which "hazardous wastes,"
as defined in section
3734.01 of the Revised Code,
were treated, stored, or disposed , are
required to be closed in accordance with Chapter 3734. of the Revised Code and
rules adopted thereunder.
(iii) Any
hazardous waste management unit described in paragraph (B) (5)(b) of this rule,
during the term of
any applicable post-closure care period required by Chapters 3745-55 and
3745-66 of the Administrative Code.
(6) Petroleum underground storage tank
systems. Any property that is subject to site assessment, removal, or
remediation, pursuant to sections
3737.88,
3737.882, and
3737.89 of the Revised Code and
rules adopted thereunder regarding underground storage tank systems, including
any systems which
contain or previously contained
petroleum. However, this paragraph shall not apply to property with either of
the following:
(a) A class C release, provided
that the volunteer is not a responsible person as defined in section
3737.87 of the Revised
Code.
(b) A release other than a
class C release, provided that the following:
(i) The volunteer is not a responsible
person, as determined by the fire marshal pursuant to Chapter 3737. of the
Revised Code.
(ii) The voluntary
action also addresses hazardous substances or petroleum that are not subject to
the rules adopted under division (B) of section
3737.882 of the Revised Code
pertaining to a corrective action.
(iii) The fire marshal has not issued an
administrative order concerning the release or referred the release to the
attorney general for enforcement.
(7) Oil and gas. Any property that is subject
to site assessment, removal, or remediation, pursuant to Chapter 1509. of the
Revised Code and rules adopted thereunder.
(8) Properties subject to an enforcement
letter. Any property that is the subject of an enforcement letter from the
director relating to a release or threatened release of hazardous substances or
petroleum on or
from the property which poses a
substantial threat to public health or safety or the environment, except when
sufficient evidence of entry and participation in the voluntary action program
is demonstrated, as provided in paragraph (C) of this rule.
(C) Sufficient evidence of entry into the voluntary action program. A property which is the subject of an enforcement letter may be eligible with respect to paragraph (B)(8) of this rule for participation in the voluntary action program upon satisfaction of the requirements of the following:
(1)
After receipt of the enforcement letter, the person
seeking to enter the voluntary action program ("proposed volunteer")
shall
present sufficient evidence to Ohio EPA that the proposed
volunteer has done or is doing the following:
(a) Has entered into the voluntary action
program prior to receipt of the enforcement letter.
Entry into the voluntary action program means the following:
(i)
Commencement of a
voluntary action by completion of a phase I property assessment
report.
(ii)
Retention of a certified professional to conduct the
voluntary action.
(iii)
Other activities identified in paragraphs (C)(2) and
(C)(3) of this rule.
(b) Is proceeding expeditiously to address
the release or threatened release of hazardous substances or petroleum
identified in the enforcement letter. "Proceeding
expeditiously" means conducting a voluntary action through the achievement of
milestones which address the release or threatened release of hazardous
substances or petroleum identified in the enforcement letter within a
three-year period, unless otherwise established by the director.
(c)
Milestones include but are not limited to
the following:
(i) Assessment
of identified areas and releases or threatened releases of hazardous substances
or petroleum identified in the enforcement letter.
(ii)
Completion of a phase II property assessment work plan.
(iii)
Completion of phase II property assessment activities or a phase II property
assessment report.
(iv)
Completion of a risk assessment.
(v) Completion
of a remedial action bench scale, treatability, pilot, or similar study.
(vi)
Completion of a remedial action plan.
(vii)
Completion of soil remedies, ground water remedies, or both.
(viii)
Submittal of a no further action letter to the director.
(2) Not later than thirty days
after the
receipt of an enforcement letter, the proposed volunteer
shall
submit to Ohio EPA for consideration, at a
minimum, evidence that shows completion of the following
:
(a) A phase I property assessment report,
which meets the requirements in
paragraph (G) of rule
3745-300-06
of the Administrative Code, was completed prior to receipt of the enforcement
letter for the property for which a no further action letter
shall be
sought.
(b) A detailed summary of
planned data collection activities, a schedule to conduct planned data
collection activities, a detailed description of how such data
shall be
evaluated, and a general description of and estimation of the time frame for
completion of each milestone of the phase II property
assessment activities and determinations described in paragraph (F) of rule
3745-300-07
of the Administrative Code and any other voluntary activities necessary to
address the threat identified in the enforcement letter.
(c) Documentation of recent or ongoing
activity at the property, which demonstrates that the proposed volunteer is
proceeding expeditiously to achieve milestones which address the threat
identified in the enforcement letter. Such documentation shall have been
prepared prior to receipt of the enforcement letter. Recent completion of the
activities required in paragraphs (C)(2)(a) and (C)(2)(b) of this rule may
satisfy the requirements of this paragraph.
(3) Not later than sixty days
after
receipt of the enforcement letter, or such other time period as approved by
Ohio
EPA, the proposed volunteer, through the certified professional,
shall
demonstrate to the director that all existing documentation and data pertaining
to the voluntary action have been reviewed by the certified professional and
shall
submit to Ohio EPA the following :
(a) A copy of the contract between the
proposed volunteer and the certified professional to complete the voluntary
action, or an affidavit by a certified professional that verifies that the
certified professional has been retained to complete the voluntary action and
describes the scope of services the certified professional has been retained to
provide with respect to the voluntary action.
(b) A schedule for completion
of a phase II property assessment in accordance with rule
3745-300-07
of the Administrative Code, if applicable.
(c) A schedule for completion
of the voluntary action in accordance with this chapter that specifies
target milestone dates for completion of the voluntary action, through
submittal of a no further action letter
.
(4) Upon the submittal
of all items required by paragraphs (C)(2) and (C)(3) of this rule,
the director
shall do the
following:
(a)
Review the items for compliance with paragraph (C)(1) of
this rule.
(b)
Determine whether or not the proposed volunteer meets
the following:
(i)
Has demonstrated sufficient evidence of entry into the
voluntary action program.
(ii)
Is proceeding
expeditiously to address the release or threatened release of hazardous
substances or petroleum identified in the enforcement letter.
(c)
Send a
determination of sufficient evidence letter to the proposed volunteer
indicating whether or not Ohio EPA intends, at that time, to proceed with
enforcement or considers the proposed volunteer a participant in the voluntary
action program.
(5) Upon receipt of the determination of
sufficient evidence letter that describes that the proposed volunteer has
demonstrated sufficient evidence, the proposed volunteer may participate in the
voluntary action program, unless the property is
otherwise ineligible pursuant to paragraphs (B)(1) to (B)(7) of this rule.
(6)
In order to remain eligible with respect to paragraph
(B)(8) of this rule, the proposed volunteer shall do the following:
(a) Substantially comply with any schedule
established pursuant to paragraphs (C)(3)(b) and (C)(3)(c) of this rule, as
appropriate.
(b) Submit progress
reports to the director. The initial report shall be
submitted within three months after receipt of the director's determination of
sufficient evidence letter referenced in paragraph (C)(4) of this rule.
Thereafter, progress reports shall be submitted every three months, and
shall
continue until submittal to the director of a complete no further
action letter for the property. At a minimum,
progress reports shall include the
following:
(i)
Description of the status of
the work and actions taken toward achieving compliance with the schedule of
work and target milestone dates during the reporting period.
(ii)
Description of any
difficulties encountered or deviations from the schedule of work and target
milestone dates during the reporting period and actions taken to address the
difficulties or deviations.
(iii)
Description of activities planned and target milestone
dates for the next reporting period.
(iv)
Identification of any
replacement of or addition to the certified professional identified in the
contract or scope of services affidavit submitted to the director pursuant to
paragraph (C)(3)(a) of this rule.
(v)
Indication of any anticipated
change in the target or actual completion dates for each milestone of the
voluntary action, including project completion, and an explanation for any
deviation from any applicable schedules, which shall be subject to Ohio EPA
approval.
(7) The requirements of
paragraphs (C)(1) to (C)(6) of this
rule do not have to be met prior to conducting a voluntary action if Ohio EPA
has taken none of the
following actions within any continuous one year period
after issuance of an enforcement letter
:
(a) Conducted
inspections of or other investigation activities concerning the property.
(b)
Collected
samples at the property.
(c) Sent
correspondence to any owners, operators, or other responsible parties
concerning activities at or the condition of the property.
(d) Conducted discussions or negotiations
with any owners, operators, or other responsible parties concerning activities
at or the condition of the property.
(e) Exchanged correspondence, conducted
discussions, or engaged in other activities with or on behalf of
U.S.
EPA concerning assessment,
removal, or remediation activities in connection with the property.
(8)
Upon a submittal
to the director of a statement that Ohio EPA has taken none of the actions
provided in paragraphs (C)(7)(a) to (C)(7)(e) of this rule within a continuous
one year period after issuance of an enforcement letter, the director shall
determine whether or not the statement of inactivity is true and shall respond
in writing to the proposed volunteer as to whether or not Ohio EPA intends to
proceed with enforcement or considers the proposed volunteer a participant in
the voluntary action program.
(9) Nothing in this
rule precludes Ohio EPA from proceeding with an enforcement action at
any time if any of the following occur:
(a)
The volunteer does not expeditiously proceed with the voluntary action by
adherance to the schedules submitted to Ohio EPA
pursuant to paragraphs (C)(5)(b) and
(C)(6) of this rule.
(b) The
director determines that the volunteer is in violation of any of the
requirements of paragraph (C) of this rule.
(c) The property is later determined to be
ineligible for the voluntary action program under this chapter.
(10) The director shall
provide written notice to a volunteer if Ohio EPA intends to proceed with
an enforcement action pursuant to paragraph (C)(9) of this
rule.
(D) Demonstration of return to compliance in support of eligibility. A property which is ineligible for participation in the voluntary action program pursuant to paragraphs (B)(1) to (B)(8) of this rule may become eligible for participation upon a written demonstration to Ohio EPA's satisfaction that the property is no longer subject to the laws or regulations which made the property ineligible. The demonstration shall include a written statement from the applicable state or federal agency or department which confirms that the property is no longer subject to such requirements.
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