Ohio Administrative Code
Title 3745 - Ohio Environmental Protection Agency
Chapter 3745-300 - Voluntary Action Program
Section 3745-300-12 - Variances and case-by-case determinations
Universal Citation: OH Admin Code 3745-300-12
Current through all regulations passed and filed through September 16, 2024
(A) Authority and scope for variances. A volunteer may apply to the director for a variance from any applicable standard that otherwise applies to a property on which a voluntary action is conducted.
(1)
Criteria for variances. The director shall issue a variance from those
applicable standards only if the volunteer makes the following demonstrations
to the director's satisfaction:
(a) Either or
both of the following:
(i) Compliance with
the applicable standards otherwise established at the property named in the
application is technically infeasible.
(ii) The costs of compliance with the
applicable standards otherwise established at the property substantially exceed
the economic benefits.
(b) The proposed alternative standard or set
of standards and terms and conditions provided in the application result in an
improvement of environmental conditions at the property, and ensure the
protection of public health and safety.
(c) The establishment of and compliance with
the alternative standard or set of standards and terms and conditions are
necessary to promote, protect, preserve, or enhance employment opportunities or
the reuse of the property named in the application.
(2) Application contents. An application for
a variance shall be prepared and submitted by a certified professional, on
behalf of the volunteer, on a form provided by Ohio EPA. The application shall
include, but is not limited to, the following information:
(a) The name and address of the
volunteer.
(b) The name and title
of the volunteer's representative who requests the variance.
(c) The certified professional's
certification identification number assigned by Ohio EPA, and the
certification's expiration date.
(d) A copy of the certified laboratory's
certificate or an indication of the certified laboratory's identification
number assigned by Ohio EPA for any data submitted to support the variance
request. If an accredited laboratory is used,
documentation of accreditation for the data supporting the variance
request.
(e) A statement that
identifies the applicable standard that is the focus of the variance
request.
(f) A statement of the
proposed alternative standard or set of standards proposed to be applicable to
the affected property and any terms and conditions thereof, including a
detailed description or explanation, and the supporting rationale for the new
alternative standard.
(g) A summary
of the technology, methods, or controls used to achieve the alternative
standard or set of standards and terms and conditions.
(h) A description of the affected
property.
(i) All information
obtained from a phase I or phase II property assessment that is relevant to the
affected property.
(j) A written
demonstration that the proposed variance complies with paragraph (A)(1) of this
rule.
(k) The names and addresses
of all adjacent property owners.
(l) The addresses and parcel numbers of all
adjacent properties.
(3)
Application review process.
(a) Within
fourteen days after receipt of the application, the director shall determine
whether a variance determination application is complete and contains all of
the items required by paragraph (A)(2) of this rule, and shall notify the
applicant in a letter sent by certified mail.
(b) In determining whether a variance
determination application is complete, the director may request additional
information. The variance applicant, through a certified professional, shall
promptly respond to any requests from the director for additional
information.
(c) Upon determining
that a variance determination application is complete, the director shall
implement the public notice and public meeting procedures in paragraph (C) of
this rule.
(d) The applicant for a
variance, or a representative of the applicant who is knowledgeable about the
affected property and the application, shall attend the public meeting for the
variance application, shall present information about the application and the
basis of the request for the variance, and shall respond to questions from the
public about the affected property and the variance application.
(4) Issuance or denial of the
variance determination.
(a) When considering
whether to approve or deny the application, or whether to impose terms and
conditions on the variance determination that are in addition to, or
alternative to, any terms and conditions proposed by the applicant, the
director shall consider the following:
(i) Any
comments made by the public at the public meeting on the application.
(ii) Any written comments on the
application.
(b) Within
ninety days after the public meeting on a variance determination application,
the director shall issue a proposed action to the applicant. The proposed
action shall include the director's intent with regard to approval or denial of
the application, and shall include the findings upon which that proposed action
is based.
(c) The director shall
issue a variance from applicable standards established in this chapter only if
the variance application makes all of the demonstrations required by paragraph
(A)(1) of this rule to the director's satisfaction.
(d) A variance issued pursuant to this rule
shall do the following:
(i) State the specific
standards whose terms are varied.
(ii) Provide the specific alternative
standards or set of standards to be applicable to the affected property, and
any terms and conditions of such standards that are imposed on the affected
property.
(iii) Provide the
specific alternative standards or set of standards to be applicable to the
variance applicant, and any terms and conditions of such standards that are
imposed on the variance applicant.
(iv) Include only standards and terms and
conditions proposed by the applicant in the variance application, except that
the director may impose any additional or alternative terms and conditions that
the director determines necessary to ensure the protection of public health and
safety.
(e) The director
shall deny a variance application if the director finds that the application is
not in compliance with paragraphs (A)(1) and (A)(2) of this rule. If the
variance application fails to propose applicable standards which are protective
of public health and safety as required in paragraph (A)(1)(b) of this rule,
the director shall deny the variance application, unless the imposition of
additional or alternative terms and conditions pursuant to paragraph (A)(4) of
this rule are protective of public health and safety.
(f) Whether an approval or denial of the
variance application, the director shall issue an order to the applicant in
accordance with paragraph (A)(4) of this rule. Variances shall be approved or
denied in accordance with this rule and Chapter 3745. of the Revised
Code.
(B) Authority and scope for case-by-case determinations. A volunteer may apply to the director for a case-by-case determination that renders a generic numeric ground water standard or a property-specific risk assessment-derived ground water standard inapplicable to a property on which a voluntary action is conducted. If the no further action letter relies on a case-by-case determination, then the case-by-case determination shall be approved by the director prior to issuance of the no further action letter for that property.
(1) Criteria for case-by-case determinations.
The director shall consider public comments received by Ohio EPA during the
public comment period conducted pursuant to paragraph (C) of this rule. The
director shall issue a case-by-case determination from those applicable
standards to remediate contaminated ground water only if the volunteer
demonstrates that doing so ensures the continued protection of public health
and safety.
(2) Application
contents. An application for a case-by-case determination shall be prepared and
submitted by a certified professional, on behalf of the volunteer, on a form
provided by Ohio EPA. The application shall include, but is not limited to, the
following information:
(a) The name and
address of the volunteer.
(b) The
name and title of the volunteer's representative who requests the
determination.
(c) The certified
professional's certification identification number assigned by Ohio EPA, and
the certification's expiration date.
(d) A copy of the certified laboratory's
certificate or an identification number assigned by Ohio EPA for any data
submitted to support the case-by-case determination request.
If an accredited laboratory is used, documentation of
accreditation for the data supporting the case-by-case determination
request.
(e) A description of
the affected property.
(f) A
statement that identifies the applicable ground water standard that is the
focus of the case-by-case determination request.
(g) A statement of the proposed alternative
standard or set of standards proposed to be applicable to the affected property
and any terms and conditions thereof. Include a detailed description or
explanation, and the supporting rationale for the new alternative standard, if
any.
(h) All information obtained
from a phase I or phase II property assessment that is relevant to the
determination and the affected property.
(i) The names and addresses of all adjacent
property owners.
(j) The addresses
and parcel numbers of all adjacent properties.
(3) Application review process.
(a) Within fourteen days after receipt of the
application, the director shall determine whether the case-by-case
determination application is complete and contains all of the items required by
paragraph (B)(2) of this rule, and shall notify the applicant in a letter sent
by certified mail.
(b) In
determining whether a case-by-case determination application is complete, the
director may request additional information. The applicant, through a certified
professional, shall promptly respond to any requests from the director for
additional information.
(c) Upon
determining that a case-by-case determination application is complete, the
director shall implement the public notice and public meeting procedures in
paragraph (C) of this rule.
(d) The
applicant for a case-by-case determination, or a representative of the
applicant who is knowledgeable about the affected property and the application,
shall attend the public meeting, shall present information about the
application and the basis of the request for the case-by-case determination,
and shall respond to questions from the public about the affected property and
the application.
(4)
Issuance or denial of the case-by-case determination.
(a) When considering whether to approve or
deny the application, or whether to impose terms and conditions on the
case-by-case determination that are in addition to, or alternative to, any
terms and conditions proposed by the applicant, the director shall consider the
following:
(i) Any comments made by the public
at the public meeting on the application.
(ii) Any written comments on the
application.
(b) Within
ninety days after the public meeting on a case-by-case determination
application, the director shall issue a proposed action to the applicant in
accordance with section
3745.07 of the Revised Code. The
proposed action shall include the director's intent with regard to approval or
denial of the application, and shall include the findings upon which that
proposed action is based.
(c) The
director shall deny a case-by-case application if the director finds that the
application fails to be protective of public health and safety, as required in
paragraph (B)(1) of this rule.
(d)
Whether an approval or denial of the case-by-case determination application,
the director shall issue an order to the applicant in accordance with paragraph
(B)(4) of this rule. Case-by-case determinations shall be approved or denied in
accordance with this rule and Chapter 3745. of the Revised Code.
(C) Public notice and public meeting. Upon determining that a variance or case-by-case determination application is complete, the director shall do the following:
(1) Mail notice of the application to each
owner of each parcel of land that is adjacent to the affected
property.
(2) Schedule a public
meeting for the application and publish notice of the public meeting. The
public meeting shall be held between thirty and ninety days after the date of
the letter specified in paragraph (A)(3)(a) or (B)(3)(a) of this rule.
The public meeting shall be held in the county where the affected property or the greatest portion of that affected property is located.
(3) At least
thirty days before the date scheduled for the public meeting on an application,
the director shall publish public notice of the public meeting. The public
notice shall be published in a newspaper of general circulation in the county
in which the affected property is located. If the affected property is located
in close proximity, as determined by the director, to the boundary of that
county with an adjacent county, the director shall publish the public notice in
a newspaper of general circulation in the adjacent county. At a minimum, the
public notice shall contain the following information:
(a) Notification that the director will
receive written comments on the application for a period of forty-five days
that begins on the date of publication of the public notice.
(b) The address of the property to which the
application pertains.
(c) A brief
summary of the alternative standards or set of standards and any terms and
conditions proposed by the applicant.
(d) The date, time, and location of the
public meeting.
(4)
Concurrently with the publication of the public notice required in paragraph
(C)(3) of this rule, the director shall mail notice by certified mail of the
application, comment period, and public meeting to each owner of each parcel of
land that is adjacent to the affected property, and to the legislative
authority of the municipal corporation or township, and county, in which the
property is located. The notices mailed to the owners of adjacent land and
legislative authorities shall contain the same information as the public notice
described in paragraph (C)(3) of this rule.
(5) A representative of Ohio EPA who is
familiar with the affected property and the application shall attend the public
meeting to receive comments from the public and to respond to questions from
the public about the affected property and the application.
(6) A stenographic record of the proceedings
at the public meeting shall be kept and shall be made a part of the
administrative record about the application. Ohio EPA shall maintain all
records produced by or for the public meeting.
(D) Administrative fees. An applicant who seeks a variance or case-by case determination shall reimburse Ohio EPA for actual costs incurred to review the application and the application's accompanying information. The applicant shall establish a direct billing schedule for payments, as required by paragraph (C) of rule 3745-300-03 of the Administrative Code. After the application is approved, denied, or withdrawn, Ohio EPA shall send to the applicant a statement of actual costs for payment. The applicant shall pay the actual costs, in full, within sixty days after receipt of the statement.
(E) Application withdrawal. Upon receipt of a written request by the applicant, an application for variance or a case-by-case determination made in accordance with this rule may be withdrawn from the director's consideration. A request for withdrawal shall be submitted to Ohio EPA prior to an approval or denial of the application. Upon the application's withdrawal, the director shall cease review of the application and shall discontinue the public notice and public meeting processes. Any costs incurred by Ohio EPA prior to withdrawal are non-refundable.
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