Current through all regulations passed and filed through September 16, 2024
(A) The
director shall conduct audits in connection with no further action letters
issued under section 3746.11 of the Revised Code for
any of the following purposes:
(1) To
determine whether, after completion of voluntary actions conducted pursuant to
this chapter and Chapter 3746. of the Revised Code, the properties upon which
the voluntary actions were conducted meet applicable standards.
(2) To review the qualifications of and work
performed by certified professionals under this chapter and Chapter 3746. of
the Revised Code to determine whether the certified professionals possess the
qualifications required for certification pursuant to rule
3745-300-05 of the
Administrative Code and whether the certified professionals' performance in the
voluntary action program has resulted in the issuance of no further action
letters that are not consistent with applicable standards.
(3) To review the qualifications of and work
performed by laboratories to
determine whether the
laboratories possess the qualifications required for certification pursuant to
rule 3745-300-04 of the
Administrative Code and whether the laboratories' performance under this
chapter and Chapter 3746. of the Revised Code has resulted in the issuance of
no further action letters that are not consistent with applicable
standards.
(B) Audits
selected from the random audit pool shall be conducted in accordance with
paragraph (F) of this rule. The director shall select no further action letters
for audit from the random audit pool by any method the director deems
necessary.
(C) The director may
select no further action letters for audit from the discretionary audit pool by
any method the director deems necessary. Audits of no further action letters
selected from the discretionary audit pool may be conducted by the director in
accordance with paragraph (F) of this rule, or by any other means. The director
may conduct a discretionary audit for any reason including, but not limited to,
any no further action letters that meet any of the following criteria:
(1) The director has
reason to believe the no further action letter was submitted
fraudulently.
(2) Was prepared by a
certified professional whose certification was subsequently revoked in
accordance with rule
3745-300-05 of the
Administrative Code.
(3) Relied upon
analyses by a certified laboratory whose certification was subsequently revoked
in accordance with rule
3745-300-04 of the
Administrative Code or whose accreditation was
subsequently revoked.
(4) Was the basis for a
covenant not to sue which was subsequently revoked under this chapter and
Chapter 3746. of the Revised Code.
(5) The certified
professional, volunteer, or owner of the property has notified the director, in
compliance with paragraph (E)(2)(f) of rule
3745-300-05 of the
Administrative Code, that relevant facts, data, or other information existed at
the time the no further action letter was issued which indicates applicable
standards were not met.
(6) Pertains to a
voluntary action for which a risk assessment was conducted in accordance with
rule 3745-300-09 of the
Administrative Code.
(7) Pertains to a
voluntary action that included, as a remedial activity, either an engineering
control as described in rule
3745-300-11 of the
Administrative Code or institutional control which restricts access to or use
of the property pursuant to rule
3745-300-11 of the
Administrative Code.
(D)
At a minimum, the director shall select no further action letters to be audited
such that the total number of no further action letters selected for audit from
both the random audit pool and discretionary audit pool result in the
following:
(1) The selection of no less than
twenty-five per cent of all no further action letters involving remedial
activities that were submitted to the director during the previous calendar
year.
(2) The selection of no less
than twenty-five per cent of all no further action letters not involving
remedial activities that were submitted to the director during the preceding
calendar year.
(E)
Compliance audits may be conducted in accordance with paragraph (F) of this
rule, or by any other means selected by the director. The director may conduct
a compliance audit for any purpose or combination of purposes described in
paragraph (A) of this rule.
(F)
Audits of a no further action letter may be conducted for any purpose or
combination of purposes described in paragraph (A) of this rule in accordance
with one or both of the following procedures:
(1) Tier I audit.
(a) Prior to commencing a tier I audit of a
no further action letter, the director shall provide reasonable advance notice
of the audit to the volunteer for whom the no further action letter was
prepared, the certified professional who prepared the no further action letter,
the current owner of the property, if different from the volunteer and, as
appropriate, any laboratory which
performed analyses which formed the basis for the no further action letter, and
any other parties deemed necessary. The notice shall include a request that the
certified professional who prepared the no further action letter make available
all documents relied upon by the certified professional and required to be
itemized on the document list in the no further action letter pursuant to rule
3745-300-13 of the
Administrative Code, and any other documents which the director determines are
necessary to perform an audit pursuant to this rule.
(b) When a certified professional receives a
notice as described in paragraph (F)(1)(a) of this rule, the certified
professional shall deliver the requested documentation to Ohio EPA not more
than thirty days after the certified professional's receipt of the
request.
(c) When conducting a tier
I audit, the director may do the following:
(i) Request that a certified professional, a
laboratory, a volunteer, or a
person responsible for maintaining compliance with applicable standards at a
property submit any or all documents pertaining to the no further action letter
being audited.
(ii) Visit a
property or place of business, after reasonable advance notice and during the
normal operating hours of the business, to perform a review of the documents
stored at that property or place of business.
(iii) Conduct a site walkover of the property
upon which the voluntary action was conducted.
(d) All documents requested pursuant to
paragraph (F)(1)(c)(i) of this rule shall be submitted to the director not
later than thirty days after receipt of the request.
(2) Tier II audit.
(a) If the documents produced and reviewed
pursuant to paragraph (F)(1) of this rule are inadequate to substantiate that
applicable standards are met as described in the no further action letter, or
if the director has a reasonable belief that the no further action letter has
been based on fraudulent or inaccurate information or documentation, the
director may do the following:
(i) Inspect a
property, after reasonable advance notice, investigate or inspect conditions,
equipment, or practices, and conduct sampling to determine compliance with
applicable standards, this chapter, or Chapter 3746. of the Revised
Code.
(ii) Take any other action
the director deems necessary to determine whether the no further action letter
was prepared in compliance with applicable standards, this chapter, or Chapter
3746. of the Revised Code.
(b) In addition to tier II audits conducted
pursuant to paragraph (F)(2)(a) of this rule, the director may, at the
director's discretion, randomly perform tier II audits on any no further action
letter selected for audit.
(c)
Nothing in this rule shall diminish the director's ability to conduct criminal
or other investigations under Chapter 3704., 3714., 3734., 3746., 3750., 3753.,
6109., or 6111. of the Revised Code.
(G) The director shall complete all
investigatory auditing activities by December thirty-first of the year in which
an audit is conducted pursuant to paragraphs (B) to (E) of this rule and
division (B) of section
3746.17 of the Revised Code, and
the director shall issue all audit findings by March first of the year after
that in which an audit is conducted.
(H) The person responsible for maintaining
compliance with applicable standards at a property subject to an audit may
request one informal meeting with Ohio EPA to discuss the technical aspects of
that audit. Ohio EPA shall be available for such meeting after the conclusion
of all investigatory auditing activities and prior to the issuance of audit
findings.
(I) The time limits
required by this rule shall not prevent the director, at the director's
discretion, from granting one thirty-day extension to any person subject to
this rule. The director may extend any time limits imposed upon the director
under this rule for a period not to exceed thirty days.
(J) If requested by the director, upon proper
identification and stating the necessity and purpose of the inspection, the
volunteer or current owner of a property shall allow the director access to the
property to conduct all audit activities pursuant to this rule. Nothing in this
rule shall limit the authority of the director provided in section
3746.21 of the Revised
Code.
(K) Ohio EPA shall provide
the person responsible for maintaining compliance with applicable standards at
a property with a split sample of any soil, water, or sediment sample obtained
or removed from a property, if prior to sampling, a written request is made by
the person responsible for maintaining compliance with applicable standards at
a property. With sufficient prior notice, Ohio EPA shall provide, at cost,
appropriate sampling containers to the person who makes such a
request.
(L) The director shall
issue audit findings pursuant to this rule which include a determination of
whether applicable standards, and all other requirements established under this
chapter or Chapter 3746. of the Revised Code have been met, and whether
additional actions are required to attain compliance. After an audit is
completed:
(1) If the director finds that a
certified professional or certified laboratory either did not possess the
required qualifications for certification or that work performed by the
certified professional or certified laboratory in connection with a voluntary
action resulted in the issuance of a no further action letter that is not
consistent with the applicable standards, the director may either suspend or
revoke the certification of the certified professional or the certified
laboratory.
(2) If the director
finds that the performance of a certified professional or certified laboratory
has resulted in the issuance of no further action letters that are not
consistent with applicable standards, the director shall notify persons for
whom the certified professional or certified laboratory has performed work in
connection with a voluntary action of the audit findings.
(3) If the director finds that a property no
longer complies with the applicable standards upon which issuance of a covenant
was based, the director, by certified mail, return receipt requested, shall
notify the person responsible for maintaining compliance with those standards
of that finding, and of the requirements of division (B)(3) of section
3746.12 of the Revised
Code.
(4) The recipient of a notice
provided under paragraph (L)(3) of this rule and division (B)(2) of section
3746.12 of the Revised Code,
within thirty days after the notice was mailed, shall notify the director of
the recipient's intention to return the property to compliance with the
applicable standards upon which the covenant was based, and shall enter into a
compliance schedule agreement with the director. The compliance schedule
agreement shall establish a reasonable period of time to return to compliance
with those applicable standards. If the recipient of the notice fails to take
both of these actions in the required time frame, the director, by issuance of
an order as a final action under Chapter 3745. of the Revised Code, shall
revoke the covenant not to sue issued for the property.
(5) If the director finds that a person with
whom the director entered into a compliance schedule agreement under this rule
and division (B)(3) of section
3746.12 of the Revised Code
failed to return the property to which the agreement pertains to compliance
with the applicable standards within the time established in the agreement, the
director, by issuance of an order as a final action under Chapter 3745. of the
Revised Code, shall revoke the covenant not to sue issued for the
property.
(M) Nothing in
this rule shall diminish the director's ability to conduct criminal or other
investigations under Chapter 3704., 3714., 3734., 3745., 3746., 3750., 3751.,
3752., 3753., 6109., or 6111. of the Revised Code.
