3737-1-01 Notice of administrative rules
hearing.
(A) Public notice of the intention of the petroleum underground
storage tank release compensation board to consider adopting, amending,
or rescinding a rule in accordance with divisions (A) to (E) of section
119.03 of
the Revised Code shall be published in the register of Ohio (www.registerofohio.state.oh.us)
pursuant to division (A) of section
119.03 of
the Revised Code.
(B) The public notice shall specify the date, time, and place of the
hearing and shall include:
(1) A statement of the intention to consider adopting, amending or
rescinding a rule and the purpose or reason therefore;
(2) A synopsis of the proposed rule, amendment, or rescission or a
general statement as to the subject to which it relates.
(C) A copy of the public notice shall be provided by the board to any
person who requests a copy, provides an email address, mailing address
or fax number, and, if appropriate, pays the cost of copying and
mailing.
Date: 07/01/2020
Five Year Review Dates: 07/31/2024 and 07/31/2029
Promulgated Under: 119.03
Statutory Authority: 119.03, 3737.90
Rule Amplifies: 119.03, 3737.90
Prior Effective Dates: 11/14/1989 (Emer.), 02/12/1990, 07/01/2003,
06/20/2005, 11/30/2009
3737-1-02 Public meetings.
(A) Meetings of the petroleum underground storage tank release
compensation board, in addition to the meetings required by section
3737.90
of the Revised Code, may be held at the call of the chairman or
vice-chairman or upon a majority vote of a quorum of the members present
at a meeting.
(B) Any person desiring to determine the time, place or purpose of any
meeting of the board, may do so by accessing the board's website at
www.petroboard.org
or contacting the chairman or vice-chairman of the board or personnel
employed by the board.
(C) Any person may provide an email address and be placed on an email
list for advance notification of all meetings of the board or meetings
at which any specific type of public business is to be discussed. The
requestor may request notification be provided by fax or first-class
mail. Any person requesting notification by first-class mail shall
provide a postage-prepaid self-addressed envelope and pay the cost of
copying.
(D) Public notice specifying the date, time and place of all meetings
of the board shall be posted on the board's website at
www.petroboard.org
and at its office.
Effective: 07/01/2020
Five Year Review Dates:
07/31/2024
and 07/31/2029
Promulgated Under: 119.03
Statutory Authority: 119.03, 3737.90
Rule Amplifies: 119.03, 3737.90
Prior Effective Dates: 11/14/1989
(Emer.), 02/12/1990, 11/30/2009, 01/01/2015
3737-1-03 Definitions.
(A) The following definitions are provided for the purposes of
clarifying the meaning of certain terms as they appear in sections
3737.90 to 3737.98 of the Revised Code and rules 3737-1-01 to 3737-1-23
of the Administrative Code.
(1) "Applicant" means the responsible person for an underground
storage tank system who submits an application on a form prescribed by
the director for fund payment of, or reimbursement for, corrective
action costs for an accidental release of petroleum or compensation paid
or to be paid to third parties for bodily injury or property damages.
(2) "Board" means the petroleum underground storage tank release
compensation board.
(3) "Bodily injury" means injury to the body or sickness or disease
contracted by a person as the result of an accidental release of
petroleum and recoverable pursuant to division (C) of section
3737.92
of the Revised Code. Bodily injury does not include the negligent
infliction of emotional distress.
(4) "Costs" means actual expenses incurred, paid, and documented.
(5) "Confirmed release" means a "confirmed release" as defined in
rule
1301:7-9-13 of the Administrative Code.
(6) "Debt service account or accounts" means an account or accounts
established for the purpose of making bond principal and interest
payments on a regular basis and as may be required by bond covenants.
(7) "Debt service reserve account or accounts" means a reserve
account or accounts established for the purpose of making bond principal
and interest payments on a non regular, emergency basis and as may be
required by bond covenants.
(8) "Deductible" means the standard, non-reduced amount which is
deducted from the responsible person's assurance coverage pursuant to
division (D)(3) of section
3737.91
of the Revised Code and established through division (E) of section
3737.92 of the Revised
Code.
(9) "Director" means the director of the petroleum underground
storage tank financial assurance fund.
(10) "Fee" means:
(a) The annual petroleum underground storage tank financial assurance
fee;
(b) The supplemental petroleum underground storage tank financial
assurance fee;
(c) Late payment fees;
(d) Transfer fee;
(e) Any and all costs for the collection of delinquent accounts; or
(f) Any other fee as established by the board.
(11) "Financial audit" means an examination of the books,
vouchers, and records of a responsible person by the director to
determine compliance with this chapter.
(12) "Financial responsibility" means proof of financial
accountability as a condition to acquiring eligibility to the fund in
accordance with rule
1301:7-9-05 of the Administrative Code adopted by the fire marshal
pursuant to section
3737.882
of the Revised Code.
(13) "Fire marshal" means the fire marshal of the state of
Ohio.
(14) "Fiscal year" means the time period July first through
June thirtieth.
(15) "Imminent hazard" means the appearance of threatened
and impending risk or peril.
(16) "Indemnify" means to restore or save harmless the board from
a loss by payment or replacement to the board any monies advanced or
received from any other party, including, but not limited to, the other
parties' insurer or the responsible person's insurer, for the payment of
corrective action costs or third party compensation for which the board
has reimbursed or will reimburse the responsible person or has
compensated or will compensate any third party for bodily injury or
property damage.
(17) "Markup" means an amount charged by contractors or
consultants beyond the actual cost of labor, equipment, or materials,
for management, supervision, or administration of the corrective action
activities performed.
(18) "Obligated account" means monies segregated and maintained,
on a year by year basis, for reimbursing necessary corrective action
costs.
(19) "Obligations" mean undertakings by the board to reimburse or
pay a responsible person or the designee of the responsible person.
(20) "Primary consultant" means a person or organization hired, by
or through the responsible person, for principal control of corrective
action activities at the release site.
(21) "Primary contractor" means a person or organization hired, by
or through the responsible person, for principal control of corrective
action activities at the release site.
(22) "Program task" means one of the tasks defined by rule
3737-1-12
of the Administrative Code.
(23) "Property damage" means actual and reasonable, incurred or
pending expenses for damage to property as the result of an accidental
release of petroleum that are not covered by insurance and are
recoverable pursuant to division (C) of section
3737.92
of the Revised Code. The following items are a non exhaustive list of
items specifically excluded from property damage: loss of profits, loss
of business, taxes, utility expenses, punitive damages, exemplary
damages, telephone, television, internet, or cable and/or satellite
fees, attorney fees or all costs of litigation, including but not
limited to court costs, depositions, experts and attorney fees.
(24) "Reduced deductible" means the reduced amount which is
deducted from the responsible person's assurance coverage pursuant to
division (D)(3) of section
3737.91
of the Revised Code and established through division (F) of section
3737.92
of the Revised Code.
(25) "Release" means a "release" as defined in rule
1301:7-9-13 of the Administrative Code.
(26) "Release incident" means a "release," "suspected release," or
"confirmed release," whichever is first discovered.
(27) "Responsible person" means a "responsible person" as defined
in division (N) of section
3737.87
of the Revised Code.
(28) "Subcontractor" means a person or organization, other than
the primary contractor or primary consultant or a subsidiary thereof,
which, at the request of the primary contractor or primary consultant,
has undertaken one or more corrective action activities for corrective
action at the release site under direction of the primary contractor or
primary consultant. Subcontractors do not include persons or entities
whose only involvement related to the corrective action is the supply of
material or equipment.
(29) "Subrogation" means the board's right to recover costs of
corrective actions and compensation to third parties for bodily injury
or property damage that the board has paid or will pay to a responsible
person or a third party from any other party, including, but not limited
to, the other party's insurer and the responsible person's insurer.
(30) "Suspected release" means a "suspected release" as defined in
rule
1301:7-9-13 of the Administrative Code.
(31) "Tank population" means the number of tanks as defined by
division (O) of section
3737.87 of the Revised Code in existence in the state of Ohio at any
given time.
(32) "Technical audit" means an examination of the books,
vouchers, and records of a responsible person to determine if the work
performed was necessary to meet the requirements of the fire marshal or
an order of the director.
(33) "Unclaimed monies trust account" means a trust account
established pursuant to section
9.39 of
the Revised Code for holding monies unclaimed by the rightful owner.
(34) "Unobligated balance" means monies which have not been placed
in the obligated account, the debt service account or accounts, the debt
service reserve account or accounts, the unclaimed monies trust account,
or used to purchase certificates of deposit for linked deposits. The
unobligated balance includes the balance of monies which may be used to
retire bonds, pay third-party bodily injury or property damage claims
related to the accidental release of petroleum, to purchase certificates
of deposit for linked deposits, to fund the obligated account, to fund
the debt service account or accounts, to fund the debt service reserve
account or accounts, or for various other expenses the board may incur
related to administering sections 3737.90 to 3737.98 of the Revised
Code.
(35) "Year" means twelve consecutive months.
Effective: 07/01/2020
Five Year Review Dates: 07/31/2019 and 07/31/2024
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.91, 3737.92
Prior Effective Dates: 08/01/1990, 05/04/1992, 04/26/1993, 07/01/1994 (Emer.),
09/30/1994, 11/29/1994 (Emer.), 02/28/1995, 04/01/1997, 09/18/1999,
07/01/2003, 04/01/2005, 04/01/2007, 04/01/2008, 11/30/2009, 01/01/2015,
01/01/2019
3737-1-04 Annual petroleum underground storage
tank financial assurance fee, certification of compliance, and financial
responsibility.
(A) Effective April 1, 1991, and each year thereafter in which the
unobligated balance of the financial assurance fund does not exceed
forty-five million dollars on the date of the board's determination of
the annual financial assurance fee for the succeeding fiscal year, the
board shall assess a fee for each tank comprising an underground storage
tank or an underground storage tank system that contains or has
contained petroleum and for which a responsible person is required to
demonstrate financial responsibility.
In the event that the unobligated balance of the financial assurance
fund exceeds forty-five million dollars on the date of the board's
determination of the annual financial assurance fee for the succeeding
fiscal year, the board may assess a fee in the year to which the
determination applies only to the extent required in or by, or necessary
to comply with covenants or other requirements in, revenue bonds issued
under sections 3737.90 to 3737.948 of the Revised Code or in proceedings
or other covenants or agreements related to such bonds.
(B) The basis for the calculation of the annual fee includes, but is
not limited to, the amount needed to meet financial soundness objectives
set forth in division (C) of section
3737.91 of the Revised Code.
(C) The director shall notify each responsible person by May first of
each year of the annual fee. In the year in which an annual fee is not
assessed, the director will provide reasonable notification to
responsible persons of the non-assessment of fees.
(D) The annual fee is due no later than July first of each year in
which an annual fee is imposed. In the event the director determines
that a responsible person fails to pay the annual fee by July first of
the year in which the fee is imposed, the director shall notify the
responsible person of the non-payment. If the responsible person fails
to submit the annual fee within thirty days of the date the notification
of non-payment was mailed, the director shall issue an order directing
the responsible person to pay the annual fee and a late fee of no more
than one thousand dollars per tank. If the responsible person fails to
comply with the order within thirty days after the issuance of the
order, the director shall notify the fire marshal of the non-compliance
and may request the attorney general to bring an action for appropriate
relief. No retroactive coverage shall be extended in situations where
responsible persons have initially failed to pay fees but later did so,
regardless of whether they received notification by the director of such
failure.
(E) Except as limited by rule
3737-1-04.1 of the Administrative Code, upon receipt of full payment
of the annual fee and any past fees owed, as determined by the director,
upon demonstration of financial responsibility as required by rule
1301:7-9-05 of the Administrative Code, and upon certification that
the responsible person is in compliance with applicable rules for
petroleum underground storage tanks adopted by the fire marshal under
section
3737.88 of the Revised Code, the director shall issue a certificate
of coverage. Full payment of the annual fee and any past fees owed, as
determined by the director, demonstration of financial responsibility,
and certification of compliance with the fire marshal's rules for the
succeeding fiscal year on or before July first will entitle the
responsible person to a certificate of coverage in effect for the fiscal
year. Full payment of the annual fee and any past fees owed, as
determined by the director, demonstration of financial responsibility,
and certification of compliance with the fire marshal's rules for the
current fiscal year after July first will result in a certificate of
coverage for that fiscal year effective on and after the date the board
received full payment due, demonstration of financial responsibility,
and certification of compliance with the fire marshal's rules.
(F)
(1) In the event an underground storage tank is installed, the
responsible person shall immediately notify the director upon
introducing a regulated petroleum product into the underground storage
tank. In the event that an underground storage tank exists for which a
certificate of coverage was not issued in the previous fiscal year, due
to an omission by the responsible person, the responsible person shall
immediately notify the director. Upon receipt of notice of a newly
installed or existing underground storage tank, as required by this
paragraph of this rule, the director shall notify the responsible person
of the assessment of any applicable fees, including but not limited to,
the annual fee for the fiscal year in which a regulated petroleum
product was first introduced into the underground storage tank or July
1, 1989, whichever is later, and any subsequent fiscal years. No
certificate of coverage will be issued until the responsible person
notifies the director of any newly installed or any existing underground
storage tank for which a certificate of coverage is not currently in
place, pays the fees assessed, demonstrates financial responsibility,
certifies compliance with the fire marshal's rules, and, if applicable,
complies with rule
3737-1-04.1 of the Administrative Code.
(2) In the event ownership of an underground storage tank is
transferred, the new responsible person shall notify the director within
thirty days of the date of the transfer. Upon receipt of notice of a
transfer of an underground storage tank as required by this paragraph of
this rule, the director shall notify the new responsible person of the
assessment of any applicable fees, including, but not limited to, any
fees outstanding at the time of the transfer of the underground storage
tank, as determined by the director, any annual fees outstanding for the
fiscal year in which the transfer occurred and any subsequent fiscal
years of ownership, and a transfer fee of five hundred dollars per
facility.
(a) If a certificate of coverage is in effect at the time of the
transfer and the new responsible person notifies the director as
required by this rule, pays the transfer fee, demonstrates financial
responsibility, and certifies compliance with the fire marshal's rules
within thirty days of the date the notification of assessment was
mailed, the certificate of coverage shall be effective as of the date
ownership of the underground storage tank transferred. Where outstanding
fees exist at the time of the transfer, the certificate of coverage is
null and void for purposes of coverage.
(b) If a certificate of coverage is not in effect at the time of the
transfer or the new responsible person fails to notify the director of
the transfer as required by this rule, no certificate of coverage will
be issued until the new responsible person notifies the director of the
transfer, pays the fees assessed, demonstrates financial responsibility,
certifies compliance with the fire marshal's rules, and, if applicable,
complies with rule
3737-1-04.1 of the Administrative Code.
(3) The responsible person shall pay the fees assessed no later than
thirty days from the date the notification of assessment was mailed. If
the responsible person fails to submit the annual fees within thirty
days of the date the notification of assessment was mailed, the director
shall notify the responsible person of the nonpayment. If the
responsible person fails to submit the annual fees within thirty days of
the date the notification of non-payment was mailed, the director shall
issue an order directing the responsible person to pay the annual fees
and a late fee of no more than one thousand dollars per tank. If the
responsible person fails to comply with the order within thirty days
after the issuance of the order, the director shall notify the fire
marshal of the non-compliance and may request the attorney general to
bring an action for appropriate relief. Where a responsible person has
failed to notify the director as required by this rule, the director is
not required to notify the responsible person of fees owed.
(G)
(1) The failure of the responsible person to do any of the following
will result in the non-issuance or revocation of a certificate of
coverage:
(a) Pay any annual fee authorized by division (B) of section
3737.91 of the Revised Code or supplemental fee authorized by
division (C) of section
3737.91 of the Revised Code;
(b) Demonstrate and maintain financial responsibility as required by
rule
1301:7-9-05 of the Administrative Code for the deductible or, when
appropriate, the reduced deductible established under rule
3737-1-06 of the Administrative Code;
(c) Certify and maintain compliance with applicable rules for
petroleum underground storage tank systems adopted by the fire marshal
under section
3737.88 of the Revised Code for each tank for which a certificate of
coverage is sought;
(d) Comply with rule
3737-1-04.1 of the Administrative Code, if applicable;
(e) Pay any fee assessed pursuant to this chapter; or
(f) Pay any fees determined by the director to be owed.
(2) Where a certificate of coverage is to be denied because the
criteria of this rule for issuance are not satisfied, the director shall
issue a notice of pending denial to the responsible person. The
responsible person shall have thirty days from the mailing of the notice
to correct the deficiency. If, after thirty days from the mailing of the
notice, the responsible person fails to correct the deficiency, the
director shall issue a determination of denial.
Once a certificate of coverage has been issued, it may be
revoked at any time upon a finding by the director that the criteria of
this rule for issuance are not satisfied. Where a certificate of
coverage is to be revoked, the director shall issue a notice of pending
revocation to the responsible person. The responsible person shall have
thirty days from the mailing of the notice to correct the deficiency.
If, after thirty days from the mailing of the notice, the
responsible person fails to correct the deficiency, the director shall
issue a determination of revocation.
The director shall notify the fire marshal of any determination issued
pursuant to this rule.
Where the requirements of this rule are not satisfied at the
time of a release incident, the certificate of coverage is null and void
for purposes of coverage and the responsible person is not eligible for
reimbursement from the fund, regardless of whether the certificate of
coverage has been revoked.
(H) A responsible person may file with the board written objections
to any order or determination of the director issued pursuant to this
rule. If the written objection is received by the board within thirty
days of the date of mailing of the order or determination, the board
shall appoint a referee to conduct an adjudication hearing in accordance
with section
119.09 of the Revised Code.
(I) The amount of the annual fee is three hundred fifty dollars per
tank.
(J) A responsible person shall maintain with the director a current
mailing address at which determinations, notices, and orders may be
sent. Any determination or order shall be mailed by certified mail to
the responsible person's address on file with the board. If the
certified mail is returned unclaimed, the order or determination shall
be served upon the responsible person in accordance with section
119.07 of the Revised Code.
Effective: 07/01/2023
Five Year Review Dates:
07/31/2024 and 07/31/2029
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.91, 3737.92
Prior Effective Dates: 08/01/1990, 04/25/1991, 05/04/1992, 04/26/1993,
07/01/1994, 07/01/1995, 07/01/1996, 04/01/1997, 04/01/1999, 09/18/1999,
04/01/2000, 04/01/2001, 07/01/2003, 04/01/2004, 04/01/2005, 06/30/2006,
04/01/2008, 11/30/2009, 04/01/2014, 01/01/2015, 04/01/2015, 04/01/2018,
01/01/2019,
07/01/2020
3737-1-04.1 Coverage reinstatement.
(A) Where the board has not issued a valid certificate of coverage to
a responsible person for a given underground storage tank, for the prior
two or more consecutive fiscal years, the responsible person shall:
(1) Comply with the requirements of rule
3737-1-04
of the Administrative Code; and
(2) Certify that, prior to payment, no release has been suspected or
confirmed from the underground storage tank system for which coverage is
being sought, or any known release is in compliance with the
requirements of rule
1301:7-9-13 of the Administrative Code.
(B) The director shall verify the responsible person is in compliance
with applicable rules for petroleum underground storage tank systems
adopted by the fire marshal under section
3737.88
of the Revised Code for each tank for which a valid certificate of
coverage has not been issued for the prior two or more consecutive
fiscal years. Where the director determines that the responsible person
is not in compliance with the fire marshal's rules for the underground
storage tank system for which coverage is being sought, the certificate
of coverage shall be denied in accordance with paragraph (G)(2) of rule
3737-1-04
of the Administrative Code.
(C) Nothing in any part of this rule shall be interpreted to allow
retroactive coverage for releases suspected or confirmed prior to the
effective date of a valid certificate of coverage.
(D) The rights, limitations, responsibilities, and requirements of
rule
3737-1-04 of the Administrative Code in acquiring and maintaining a
valid certificate of coverage apply to any certificate of coverage
sought and obtained under this rule.
Effective: 01/01/2019
Five Year Review Dates:
07/31/2024 and 07/31/2029
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.91
Prior Effective Dates: 07/01/1995, 09/18/1999, 04/01/2007, 04/01/2008,
11/30/2009, 07/01/2015
3737-1-05 Supplemental petroleum
underground storage tank financial assurance fee.
(A) In any fiscal year in which the board finds that the unobligated
balance in the financial assurance fund is less than fifteen million
dollars, the board may assess a supplemental fee for each tank
comprising an underground storage tank or an underground storage tank
system that contains or has contained petroleum and for which a
responsible person is required to demonstrate financial responsibility.
(B) The basis for the calculation of the supplemental fee will include
but will not be limited to the amount needed to meet financial soundness
objectives set forth in division (C) of section
3737.91
of the Revised Code.
(C) The director of the fund shall notify each responsible person of
the supplemental fee no less than thirty days before the date on which
the supplemental fee is due.
(D) The supplemental fee is due no later than thirty days from the
date of the notification. In the event a responsible person fails to pay
the fee within the thirty-day period set forth in this rule, the
director of the fund shall notify the responsible person of the
non-payment. If the responsible person fails to submit the supplemental
fee within thirty days after the notification of non-payment has been
mailed, the director of the fund shall issue an order by certified mail
directing the responsible person to pay the supplemental fee and a late
fee of up to one thousand dollars per tank. If the responsible person
fails to comply with the order within thirty days after the issuance of
the order, the director shall notify the fire marshal of the
non-compliance and may request the attorney general to bring an action
for appropriate relief.
(E) The director shall revoke the certificate of coverage upon the
failure to pay the supplemental fee.
(F) In the event that a new tank is placed in service after July
first of the year in which the supplemental fee is imposed, the director
shall notify the responsible person by certified mail of the assessment
of the fee. The responsible person shall tender the fee assessed no
later than thirty days from the date of notification of fees. If the
responsible person fails to submit the fee within thirty days after the
notification has been mailed, the director of the fund shall notify the
responsible person of the non-payment. If the responsible person fails
to submit the supplemental fee within thirty days after the notification
of non-payment has been mailed, the director of the fund shall issue an
order by certified mail directing the responsible person to pay the
supplemental fee and a late fee of up to one thousand dollars per tank.
If the responsible person fails to comply with the order within thirty
days after the issuance of the order, the director shall notify the fire
marshal of the non-compliance and may request the attorney general to
bring an action for appropriate relief.
(G) A responsible person may file with the board written objections to
the order of the director no later than thirty days from the mailing of
the order. The board, upon receipt of the objections, shall appoint a
referee to conduct an adjudication hearing in accordance with section
119.09 of
the Revised Code.
Effective: 11/30/2009
Five Year Review Dates:
07/31/2024 and 07/31/2029
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.91
Prior Effective Dates: 08/01/1990, 07/01/1994, 07/01/1996, 09/18/1999,
04/01/2005, 04/01/2007
3737-1-06 The deductible and the reduced
deductible.
(A) The deductible is fifty-five thousand dollars, which deductible
may thereafter be modified by the board pursuant to rule
3737-1-15
of the Administrative Code.
(B) Any responsible person owning, or owning or operating, a total of
six or fewer tanks may purchase the reduced deductible of eleven
thousand dollars, which reduced deductible may thereafter be modified by
the board pursuant to rule
3737-1-15
of the Administrative Code, for all tanks owned by the person eligible
to elect the reduced deductible. The additional fee due for the reduced
deductible shall be two hundred dollars per tank.
(C) If a responsible person discovers one or more underground storage
tanks, which were previously unknown to the responsible person and which
have not been registered with the fire marshal pursuant to rule
1301:7-9-04 of the Administrative Code, on his property, the
discovered underground storage tank(s) shall not affect the responsible
person's qualification for the reduced deductible for any fiscal year
prior to and including the fiscal year of discovery. If the responsible
person is required to demonstrate financial responsibility for the
discovered underground storage tank(s), the discovered tank(s) shall be
used to determine the responsible person's qualification for the reduced
deductible in succeeding fiscal years.
Effective: 11/30/2009
Five Year Review Dates: 07/31/2019 and 07/31/2024
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.91
Prior Effective Dates: 08/01/1990, 04/25/1991, 05/04/1992, 04/26/1993,
07/01/1994, 04/01/2006
3737-1-07 Establishing fund eligibility
for corrective action costs.
(A) As a prerequisite to determining fund payment of or reimbursement
for corrective action costs for an accidental release of petroleum, the
director of the fund shall issue a determination of eligibility for
payment of or reimbursement for such costs where all of the following
conditions are established:
(1) Receipt of an application for eligibility, from a responsible
person, within one year from the date the release incident was required
to be reported to the fire marshal;
(2) At the time of the release incident a responsible person
possessed a valid certificate of coverage, issued pursuant to rule
3737-1-18
of the Administrative Code and the validity of which has been maintained
pursuant to paragraph (E) of rule
3737-1-04
of the Administrative Code, for the petroleum underground storage tank
system from which the release occurred;
(3) The corrective action performed or to be performed has been
authorized by the fire marshal under section
3737.882
of the Revised Code and rules adopted under that section;
(4) The costs of performing the corrective action are necessary to
comply with the rules of the fire marshal adopted under sections
3737.88
and
3737.882 of the Revised Code governing corrective actions;
(5) One of the following applies:
(a) At the time of the release incident, the petroleum underground
storage tank system from which the release occurred was registered in
compliance with rules adopted by the fire marshal under section
3737.88
of the Revised Code;
(b) The fire marshal has recommended that payment or reimbursement be
made because good cause existed for the responsible person's failure to
have so registered the petroleum underground storage tank system, and
the responsible person has registered the petroleum underground storage
tank system with the fire marshal and paid all back registration fees
payable under those rules for registration of the system from the time
the responsible person should have, but failed to register the system.
(6) The fire marshal has determined that, when the claim was filed, a
responsible person was in compliance with all orders issued under
sections
3737.88
and
3737.882
of the Revised Code regarding the petroleum underground storage tank
system from which the release occurred;
(7) A responsible person demonstrates financial responsibility for the
deductible amount applicable under section
3737.91
of the Revised Code for the petroleum underground storage tank system
from which the release occurred;
(8) The responsible person has not falsified any attestation contained
on a registration application required by rules adopted under section
3737.88
of the Revised Code;
(9) The responsible person has met the petroleum release, suspected
release, and confirmed release reporting requirements set forth in rule
1301:7-9-13 of the Administrative Code; and
(10) At the time of the release incident the petroleum underground
storage tank system from which the release occurred was in compliance
with rules, other than rules regarding registration, adopted by the fire
marshal under section
3737.88
of the Revised Code.
(B) Where an eligibility application is incomplete, the director or
the director's designee may make a written request for additional
information. The responsible person shall supply the additional
information within sixty days from the date of the request. If the
responsible person fails to respond within sixty days from the date of
the request, the director or the director's designee shall make a second
request for the information and shall notify the responsible person that
failure to respond within thirty days from the date of the second
request shall result in the denial of eligibility. If the responsible
person fails to provide the additional information within thirty days
from the date the second request is sent, eligibility shall be denied.
(C) A responsible person determined eligible pursuant to paragraph (A)
of this rule for fund payment or reimbursement shall maintain
eligibility to the fund by doing all of the following:
(1) Maintaining all records required to be kept by this chapter;
(2) Paying all fees assessed;
(3) Maintaining compliance with all orders issued pursuant to
sections
3737.88
and
3737.882
of the Revised Code; and
(4) Maintaining compliance with the applicable rules for petroleum
underground storage tank systems adopted by the fire marshal under
section
3737.88
of the Revised Code for the underground storage tank system from which
the release occurred.
(D) A responsible person may transfer his rights for reimbursement of
eligible costs to another party upon notification and approval of the
director. The responsible person is liable for all requirements of this
chapter and fund eligibility must be maintained. The transfer of rights
does not limit the liabilities of the responsible person. Nothing within
this paragraph of this rule shall be deemed to grant standing, to a non
responsible person, to bring a claim against the petroleum financial
assurance fund.
(E) When the director has reason to believe that a responsible person
determined eligible to claim against the financial assurance fund
pursuant to paragraph (A) of this rule, has failed to maintain fund
eligibility pursuant to paragraph (C) of this rule, the director shall
issue a notice of pending fund ineligibility. The responsible person
shall have thirty days from the mailing of such notice to either provide
evidence of compliance with all fund eligibility requirements or take
all necessary steps to correct the non-compliance.
If, after thirty days from the mailing of the notice of pending fund
ineligibility, the responsible person fails to resolve the
non-compliance, the director shall issue a determination of fund
ineligibility immediately nullifying any previously-determined
eligibility for disbursement from the financial assurance fund. The
director shall provide the fire marshal with a copy of the determination
issued pursuant to this paragraph.
(F) A responsible person or the fire marshal may file written
objections with the board to the director's determination of fund
ineligibility no later than thirty days from the mailing of the
determination of fund ineligibility. The board upon receipt of the
objections shall appoint a referee to conduct an adjudication hearing on
the determination in accordance with section
119.09 of
the Revised Code.
(G) Determination of fund eligibility does not constitute an
obligation for reimbursement from the fund.
Effective: 07/01/2020
Five Year Review Dates:
07/31/2019 and 07/31/2024
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.92
Prior Effective Dates: 08/01/1990, 05/04/1992, 04/26/1993, 07/01/1994,
07/01/1995, 11/24/1996, 09/18/1999, 04/01/2005, 04/01/2008, 11/30/2009,
07/01/2015, 01/01/2019
3737-1-08
Disbursement of the financial assurance fund.
(A) Once eligibility of the fund has been determined in accordance
with rule
3737-1-07 or
3737-1-19
of the Administrative Code and the director of the fund has determined
that an application for reimbursement is complete, obligations of the
fund will not occur unless and until the deductible or the reduced
deductible, as applicable, set forth in rule
3737-1-06
of the Administrative Code has been met. Costs determined to be
non-reimbursable pursuant to paragraph (A) of rule
3737-1-09
of the Administrative Code shall not be applied toward the responsible
person's deductible or reduced deductible. Reimbursable costs covered by
insurance policies or recoverable from any other party shall be applied
toward the responsible person's deductible or reduced deductible.
(B) Obligations of the fund for eligible claims will be made on a
first-come, first-served basis as determined by receipt of a completed
application in accordance with rule
3737-1-12
of the Administrative Code, except when:
(1) The fire marshal requests approval of an accelerated review on
the basis of the threat posed to human health or the environment by the
release to which the claim applies;
(2) An accelerated review is granted under paragraph (D) of this
rule; or
(3) The director determines that efficiency and cost savings will be
better served by a non first-come, first-served review.
Notwithstanding any of the above provisions, the director may prioritize
claims for releases that have received no further action status.
(C) The board may by resolution provide for the payment of claims by
installments in a manner and for a period of time it deems appropriate
when the board concludes that such action is necessary to maintain the
financial soundness of the financial assurance fund.
(D) A responsible person may file with the board a request for an
accelerated review of a claim by submitting an application for hardship
status on a form prescribed by the director, and by providing financial
documentation to the director that demonstrates approval of hardship
status is necessary to prevent an imminent financial hardship to the
responsible person.
(1) As a result of such request, the director may:
(a) Seek additional information from the responsible person to
demonstrate imminent financial hardship, including but not limited to, a
statement of assets and liabilities and/or a detailed listing of living
expenses and income;
(b) Request the responsible person sign a release to allow the
director to obtain or inspect federal and state tax records; and
(c) Request copies of any contracts existing between the responsible
person and his/her contractors and subcontractors remediating the site.
(2) A responsible person who refuses to provide the requested
information shall be denied hardship status. Any documentation received
by the board for a hardship application is a public record unless it is
specifically exempt under section
149.43 of
the Revised Code.
(3) Upon review of financial data and/or other information provided
by the responsible person, the director shall recommend to the board
approval or denial of the request.
The board may accept or reject the director's recommendation.
Should the board's action result in the approval of hardship status, the
approval shall be for two years from the date of the board's action. A
responsible person may file a subsequent request for hardship status on
or before the expiration of a two-year period of hardship status.
(4) The board may suspend or discontinue the hardship program when it
determines that doing so is in the interest of the fund. Any hardship
statuses that are currently in effect at the time the board suspends or
discontinues the hardship program shall remain effective until the
expiration of the two-year period from the date the application was
approved.
Effective: 07/01/2020
Five Year Review Dates:
07/31/2024 and 07/31/2029
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.92
Prior Effective Dates: 08/01/1990, 05/04/1992, 07/01/1996, 09/18/1999,
04/01/2005, 04/01/2006, 04/01/2008, 11/30/2009, 01/01/2015, 01/01/2019
3737-1-09 Limitations of fund coverage.
(A) Nothing in this chapter shall be construed to authorize
reimbursement for:
(1) Costs of corrective actions for releases prior to July 1, 1989;
(2) Costs of corrective action for a release for which eligibility
for reimbursement was not sought or the director has issued a
determination denying eligibility for reimbursement;
(3) Litigation costs of any kind incurred by a responsible person
including, but not limited to: litigation costs involving acquisition of
site access; local, state, or federal permit decisions; any ordinance,
rule or regulation; or any order issued by the fire marshal;
(4) Costs associated with:
(a) Achieving compliance with the provisions of sections 3737.881 to
3737.98 of the Revised Code, with the exception of costs associated with
corrective action and compensation to third parties for expenses
associated with bodily injury or property damages caused by an
accidental release of petroleum;
(b) Interest or carrying charges of any kind;
(c) Insurance premiums other than specific policies or bonds required
for corrective action;
(d) Studies or surveys of an underground storage tank site or on
property nearby other than from a site check or a tier 1 source
investigation conducted in accordance with rule
1301:7-9-13 of the Administrative Code;
(e) Corrective action costs which are determined to be
non-reimbursable as a result of an audit performed in accordance with
this chapter.
(5) Costs incurred in conducting corrective action for non-petroleum
products or corrective action for petroleum or petroleum products
unrelated to a release from an assured underground storage tank system;
(6) Costs incurred in conducting corrective action for a release from
an unassured underground storage tank system;
(7) Costs not required for performing corrective action completed in
accordance with rules of the fire marshal adopted under sections
3737.88
and
3737.882 of the Revised Code or, where applicable, completed in
accordance with an order which establishes corrective action procedures
and criteria for the site;
(8) Costs covered by insurance policies;
(9) Costs associated with the closure or removal of underground
storage tank systems in compliance with rule
1301:7-9-12 of the Administrative Code. Where closure or removal
costs, associated with rule
1301:7-9-12 of the Administrative Code, are intermingled with
corrective action costs and are not separately ascertainable, the
director shall determine corrective action costs to be reimbursed based
upon a reasonable standard;
(10) Costs for corrective action other than those costs which are
usual, customary, and reasonable for similar corrective action
activities and under similar circumstances, as determined from the
fund's experience;
(11) Costs for corrective action not submitted in accordance with rule
3737-1-12 of the Administrative Code;
(12) Additional corrective action costs for a release after a no
further action letter has been issued by the fire marshal for the
subject release, unless the additional corrective action activities are
required by the fire marshal due to the discovery of chemicals of
concern, as defined by rule
1301:7-9-13 of the Administrative Code, resulting from the original
release but not reasonably discovered prior to the issuance of the no
further action letter. Under no circumstances shall additional
corrective action costs be reimbursed when the original no further
action letter for the subject release is rescinded more than five years
from the date it was issued;
(13) Costs necessary for performing corrective action authorized by
the fire marshal under section
3737.882
of the Revised Code and rules adopted under that section greater than
fifty per cent of the usual, customary, and reasonable costs of the
least expensive alternative for similar corrective action activities and
under similar circumstances as determined from the fund's experience
when pre-approval is required by paragraphs (A), (B), or (D) of rule
3737-1-12.1 of the Administrative Code but pre-approval was not
sought or granted;
(14) Undocumented corrective action costs, unless the responsible
person submits documentation to support the corrective action costs
within ninety days from the date that the director or the director's
designee requests such documentation in writing pursuant to rule
3737-1-13
of the Administrative Code;
(15) Costs for corrective action and/or third-party claims where the
responsible person has failed to comply with rule
3737-1-22
of the Administrative Code that are greater than the lesser of:
(a) Fifty percent of eligible corrective action and third-party claim
costs, as determined by the director; or
(b) The total of eligible corrective action and third-party claim
costs, as determined by the director, minus the amount of the deductible
and minus the amount that has been or will be paid by any party to the
responsible person.
(16) Cost for performing corrective action not authorized by the
fire marshal under section
3737.882
of the Revised Code and rules adopted under that section;
(17) Markup for any of the following:
(a) Costs of disposal, disposal facilities, and treatment
facilities;
(b) Internal expenses including labor, supplies, per diem travel
expenses, and intra-company billings;
(c) Charges for supplies;
(d) Charges for materials;
(e) Charges for equipment;
(f) Charges for utilities;
(g) Costs for transportation of soil and backfill materials.
(18) Costs that have been or will be paid by any party under rule
3737-1-22
of the Administrative Code.
(B) The board, upon payment or reimbursement from the fund to a
responsible person for corrective action costs or the cost of
compensation to third parties for bodily injury or property damage, is
entitled by subrogation to all rights of the responsible person to
recover those costs from any other person.
Effective: 07/01/2020
Five Year Review Dates: 07/31/2019 and 07/31/2024
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.92
Prior Effective Dates: 08/01/1990, 05/04/1992, 07/01/1994, 09/18/1999,
07/01/2003, 04/01/2005, 04/01/2007, 04/01/2008, 11/30/2009, 01/01/2015,
01/01/2019
3737-1-09.1 Inclusions of fund coverage.
(A) The following costs shall be specifically reimbursable:
(1) Except where prohibited by paragraph (A)(17) of rule
3737-1-09
of the Administrative Code, markup on reimbursable subcontractor
charges, including but not limited to the following, but only to the
extent that the total amount of all markups is not greater than ten per
cent of the reimbursable costs:
(a) Drilling services;
(b) Soil excavation services;
(c) Utility locating services; and
(d) Vacuum truck services.
(2) Per diem for travel costs directly related to corrective action
at a release site, up to a maximum amount, as established by the
director, to reimburse the costs of mileage, food, and lodging incurred
by a primary consultant or primary contractor when the release site is
at a distance from the primary consultant's or primary contractor's
nearest office of business which, under state of Ohio travel
reimbursement policy, would allow for reimbursement. The costs of travel
by common carrier (i.e. plane, boat and bus) shall not be reimbursable.
(3) Notwithstanding paragraph (A)(3) of rule
3737-1-09
of the Administrative Code, usual, customary, and reasonable legal costs
incurred by the responsible person for the preparation, review or
recording of an environmental covenant pursuant to rule
1301:7-9-13 of the Administrative Code.
(B) Nothing in any part of this rule shall be interpreted to preclude
coverage for corrective action costs or third-party bodily injury or
third-party property damage which are generally or specifically included
in coverage under Chapter
3737. of
the Revised Code or Chapter
3737 of
the Administrative Code.
Effective: 07/01/2020
Five Year Review Dates:
07/31/2024 and 07/31/2029
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.92
Prior Effective Dates: 07/01/1994 (Emer.), 09/30/1994, 01/01/2015
3737-1-10 Financial audits.
(A) The director or the director's designee may perform financial
audits as necessary to ensure compliance with this chapter, to certify
corrective action costs and to assess whether costs are reimbursable
from the fund. Prior to any financial audit, the director shall give the
responsible person written notice of the proposed audit. The responsible
person shall make available to the director, or the director's designee,
all records and documents which the director or the director's designee
deems necessary to the completion of the audit.
(B) The director shall upon completion of the audit prepare a written
report of the findings. A copy of this report shall be sent to the
responsible person and to the fire marshal. The responsible person may
file written objections to the director's report within thirty days
after the mailing of the director's report. The board, upon receipt of
the objections, shall appoint a referee to conduct an adjudication
hearing in accordance with section
119.09 of
the Revised Code. Thereafter the board shall make a decision to approve,
disapprove, or modify the referee's findings and recommendations.
(C) Nothing within this rule shall be deemed to grant standing to a
non-responsible person to bring a claim against the financial assurance
fund.
Effective: 11/30/2009
Five Year Review Dates:
07/31/2024 and 07/31/2029
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.92
Prior Effective Dates:
08/01/1990, 11/24/1996
3737-1-11 Technical audits.
(A) The director or the director's designee may conduct technical
audits during reviews of applications for reimbursement to determine if
the work performed was substantially in excess of that necessary to meet
the requirements of the fire marshal, to ensure compliance with
applicable rules and to verify site corrective actions. Prior to any
technical audit, the director shall give the responsible person written
notice of the proposed audit. The responsible person shall make
available to the director or the director's designee all records and
documents which the director or the director's designee deems necessary
to the completion of the audit.
(B) The director shall upon completion of the audit prepare a written
report of the findings. A copy of this report shall be sent to the
responsible person and to the fire marshal. The responsible person may
file written objections to the director's report within thirty days
after the mailing of the director's report. The board, upon receipt of
the objections, shall appoint a referee to conduct an adjudication
hearing in accordance with section
119.09 of
the Revised Code. Thereafter the board shall make a decision to approve,
disapprove, or modify the referee's findings and recommendations.
(C) Nothing within this rule shall be deemed to grant standing to a
non-responsible person to bring a claim against the financial assurance
fund.
Effective: 11/30/2009
Five Year Review Dates:
07/31/2024 and 07/31/2029
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.92
Prior Effective Dates: 08/01/1990, 11/24/1996, 09/18/1999
3737-1-12 Application for reimbursement.
(A) Responsible persons shall file an application on a form prescribed
by the director for reimbursement for costs actually incurred in
conducting corrective action within one year from the completion date of
the program task, as described below. If the responsible person fails to
make a timely application for reimbursement under this rule, the costs
associated with the task shall be denied.
(B) For purposes of submitting an application for reimbursement for
corrective actions performed under rule
1301:7-9-13 of the Administrative Code in effect prior to March 31,
1999, the following are completion dates from which the one-year filing
periods begin to run for related program tasks:
(1) The immediate corrective action program task completion date
shall be the date the release is required to be reported to the fire
marshal. The immediate corrective action program task is comprised of
those actions set forth in paragraphs (F) and (H) of rule
1301:7-9-13 of the Administrative Code;
(2) The free product removal program task completion date shall be
the date the last free product removal report is required to be
submitted to the fire marshal or, if no free product removal reports are
required, the completion date shall be the date the release was required
to be reported to the fire marshal. The free product removal program
task is comprised of those actions set forth in paragraph (G) of rule
1301:7-9-13 of the Administrative Code;
(3) The site assessment program task completion date shall be the
date the fire marshal determines site assessment to be complete. The
site assessment program task is comprised of those actions set forth in
paragraph (I) of rule
1301:7-9-13 of the Administrative Code;
(4) The remedial action plan program task completion date shall be
the date the fire marshal approves the plan. The remedial action plan
program task is comprised of those actions set forth in paragraph (J)
and paragraph (K) of rule
1301:7-9-13 of the Administrative Code; and
(5) The completion date for the remedial action plan implementation
program task and the on-going system operation and maintenance program
task shall be the date the fire marshal issues a no further action
determination. The remedial action plan implementation program task and
the on-going system operation and maintenance program task are comprised
of those actions set forth in paragraph (L) and paragraph (M) of rule
1301:7-9-13 of the Administrative Code.
(6) For any costs not associated with a program task described in
this paragraph, the associated completion date shall be the earliest of:
(a) A completion date specified by the fire marshal;
(b) The date the fire marshal issues a no further action
determination; or
(c) The date the work was completed.
(C) For purposes of submitting an application for reimbursement for
corrective actions performed under rule
1301:7-9-13 of the Administrative Code in effect on or after March
31, 1999, but before March 1, 2005, the following are completion dates
from which the one-year filing periods begin to run for related program
tasks:
(1) The immediate response action program task completion date shall
be the date the release is required to be reported to the fire marshal.
The immediate response action program task is comprised of those actions
set forth in paragraphs (G)(1), (G)(3), and (G)(4) of rule
1301:7-9-13 of the Administrative Code;
(2) The free product removal program task completion date shall be
the date the last free product removal report is required to be
submitted to the fire marshal or, if no free product removal reports are
required, the completion date shall be the date the release was required
to be reported to the fire marshal. The free product removal program
task is comprised of those actions set forth in paragraph (G)(2) of rule
1301:7-9-13 of the Administrative Code;
(3) The tier 1 evaluation program task completion date shall be the
date the tier 1 evaluation notification, or the tier evaluation report
if appropriate, is required to be submitted to the fire marshal. The
tier 1 evaluation program task is comprised of those actions set forth
in paragraphs (H), (I), (J) and (K) of rule
1301:7-9-13 of the Administrative Code;
(4) The tier 2 evaluation program task completion date shall be the
date the tier evaluation report is required to be submitted to the fire
marshal. The tier 2 evaluation program task is comprised of those
actions set forth in paragraphs (M) and (N) of rule
1301:7-9-13 of the Administrative Code;
(5) The tier 3 evaluation program task completion date shall be the
date the tier 3 evaluation report is required to be submitted to the
fire marshal. The tier 3 evaluation program task is comprised of those
actions set forth in paragraph (O) of rule
1301:7-9-13 of the Administrative Code;
(6) The completion date for the remedial action plan implementation
program task and the monitoring plan program task shall be the date the
fire marshal issues a no further action determination. The remedial
action plan implementation program task is comprised of those actions
set forth in paragraphs (S) and (T) of rule
1301:7-9-13 of the Administrative Code. The monitoring plan program
task is comprised of those actions set forth in paragraph (R) of rule
1301:7-9-13 of the Administrative Code; and
(7) For any costs not associated with a program task described in
this paragraph, the associated completion date shall be the earliest of:
(a) A completion date specified by the fire marshal;
(b) The date the fire marshal issues a no further action
determination; or
(c) The date the work was completed.
(D) For purposes of submitting an application for reimbursement for
corrective actions performed under rule
1301:7-9-13 of the Administrative Code in effect on or after March
1, 2005, but before September 1, 2017, the following are completion
dates from which the one-year filing periods begin to run for related
program tasks:
(1) The immediate corrective action program task completion date
shall be the date the release is required to be reported to the fire
marshal. The immediate corrective action program task is comprised of
those actions set forth in paragraphs (G)(1) and (G)(2) of rule
1301:7-9-13 of the Administrative Code;
(2) The free product removal program task completion date shall be
the date the last free product removal report is required to be
submitted to the fire marshal or, if no free product removal reports are
required, the completion date shall be the date the release was required
to be reported to the fire marshal. The free product removal program
task is comprised of those actions set forth in paragraph (G)(3) of rule
1301:7-9-13 of the Administrative Code;
(3) The tier 1 source investigation program task completion date
shall be the date the tier 1 delineation notification, tier 1
notification, or tier 1 evaluation report, if appropriate, is required
to be submitted to the fire marshal. The tier 1 source investigation
program task is comprised of those actions set forth in paragraph (H) of
rule
1301:7-9-13 of the Administrative Code;
(4) The tier 1 delineation program task completion date shall be the
date the tier 1 investigation report is required to be submitted to the
fire marshal. The tier 1 delineation program task is comprised of those
actions set forth in paragraph (I) of rule
1301:7-9-13 of the Administrative Code;
(5) The tier 2 evaluation program task completion date shall be the
date the tier evaluation report is required to be submitted to the fire
marshal. The tier 2 evaluation program task is comprised of those
actions set forth in paragraph (L) of rule
1301:7-9-13 of the Administrative Code;
(6) The tier 3 evaluation program task completion date shall be the
date the tier 3 evaluation report is required to be submitted to the
fire marshal. The tier 3 evaluation program task is comprised of those
actions set forth in paragraph (M) of rule
1301:7-9-13 of the Administrative Code;
(7) The completion date for the interim response action program task
associated with a tier evaluation shall be the date the interim response
action summary report is required to be submitted to the fire marshal.
The interim response action program task is comprised of those actions
set forth in paragraph (K) of rule
1301:7-9-13 of the Administrative Code.
(8) The completion date for the remedial action plan preparation
program task associated with a tier evaluation shall be the date the
remedial action plan is required to be submitted to the fire marshal.
The remedial action plan preparation program task is comprised of those
actions set forth in paragraphs (N)(1) and (N)(2) of rule
1301:7-9-13 of the Administrative Code;
(9) The completion date for the remedial action plan implementation
program task and the monitoring plan program task shall be the date the
fire marshal issues a no further action determination. The remedial
action plan implementation program task is comprised of those actions
set forth in paragraphs (N)(3) and (N)(4) of rule
1301:7-9-13 of the Administrative Code. The monitoring plan program
task is comprised of those actions set forth in paragraph (O) of rule
1301:7-9-13 of the Administrative Code; and
(10) For any costs not associated with a program task described in
this paragraph, the associated completion date shall be the earliest of:
(a) A completion date specified by the fire marshal;
(b) The date the fire marshal issues a no further action
determination; or
(c) The date the work was completed.
(E) For purposes of submitting
an application for reimbursement for corrective actions performed under
rule
1301:7-9-13 of the Administrative Code in effect on or after
September 1, 2017, the following are completion dates from which the
one-year filing periods begin to run for related program tasks:
(1) The immediate corrective
action program task completion date shall be the date the immediate
corrective action report is required to be submitted to the fire
marshal. The immediate corrective action program task is comprised of
those actions set forth in paragraphs (G)(1) and (G)(2) of rule
1301:7-9-13 of the Administrative Code;
(2) The free product removal
program task completion date shall be the date the last free product
removal report is required to be submitted to the fire marshal or, if no
free product removal reports are required, the completion date shall be
the date the release incident was required to be reported to the fire
marshal. The free product removal program task is comprised of those
actions set forth in paragraph (G)(3) of rule
1301:7-9-13 of the Administrative Code;
(3) The tier 1 source
investigation program task completion date shall be the date the tier 1
notification, or the tier 1 evaluation report if appropriate, is
required to be submitted to the fire marshal. The tier 1 source
investigation program task is comprised of those actions set forth in
paragraph (H) of rule
1301:7-9-13 of the Administrative Code;
(4) The tier 1 delineation
program task completion date shall be the date the tier 1 investigation
report is required to be submitted to the fire marshal. The tier 1
delineation program task is comprised of those actions set forth in
paragraph (I) of rule
1301:7-9-13 of the Administrative Code;
(5) The tier 2 evaluation
program task completion date shall be the date the tier 2 evaluation
report is required to be submitted to the fire marshal. The tier 2
evaluation program task is comprised of those actions set forth in
paragraph (L) of rule
1301:7-9-13 of the Administrative Code;
(6) The tier 3 evaluation
program task completion date shall be the date the tier 3 evaluation
report is required to be submitted to the fire marshal. The tier 3
evaluation program task is comprised of those actions set forth in
paragraph (M) of rule
1301:7-9-13 of the Administrative Code;
(7) The completion date for
the interim response action program task associated with a tier
evaluation shall be the date the interim response action summary report
is required to be submitted to the fire marshal. The interim response
action program task is comprised of those actions set forth in paragraph
(K) of rule
1301:7-9-13 of the Administrative Code.
(8) The completion date for
the remedial action plan preparation program task associated with a tier
evaluation shall be the date the remedial action plan is required to be
submitted to the fire marshal. The remedial action plan preparation
program task is comprised of those actions set forth in paragraphs
(N)(1) and (N)(2) of rule
1301:7-9-13 of the Administrative Code;
(9) The completion date for
the remedial action plan implementation program task and the monitoring
plan program task shall be the date the fire marshal issues a no further
action determination. The remedial action plan implementation program
task is comprised of those actions set forth in paragraphs (N)(3) and
(N)(4) of rule
1301:7-9-13 of the Administrative Code. The monitoring plan program
task is comprised of those actions set forth in paragraph (O) of rule
1301:7-9-13 of the Administrative Code; and
(10) For any costs not
associated with an above described program task, the associated
completion date shall be the earliest of:
(a) A completion date
specified by the fire marshal;
(b) The date the fire marshal
issues a no further action determination; or
(c) The date the work was
completed.
(F) Where applicable, a
responsible person shall submit approvals from the fire marshal to
remain in an earlier version of rule
1301:7-9-13 of the Administrative Code. Where a responsible person
has been conducting corrective action under an earlier version of rule
1301:7-9-13 of the Administrative Code and elects, or by operation
of law, is mandatorily transitioned to continue corrective action under
rule
1301:7-9-13 of the Administrative Code in effect on or after March
1, 2005, the election date or the mandatory transition date shall be
used as the completion date for submitting the following costs:
(1) For program tasks that are
incomplete at the date of the election or mandatory transition date,
submit all costs incurred within one year from the date of the election
or mandatory transition; and
(2) For all program tasks that
are complete at the time of such election or mandatory transition,
submit all costs in accordance with paragraph (B), (C), (D), or (E) of
this rule.
(G) If the responsible person
has made a timely (prior to the original due date for completion)
written request to the fire marshal in accordance with rule
1301:7-9-13 of the Administrative Code, to extend the time for
completing a program task and if the fire marshal grants that request,
the claim submission date for costs associated with that program task
shall be as follows:
(1) For costs incurred prior
to the original completion date, any claim for such costs shall be
submitted within one year from the original completion date;
(2) For costs incurred after
the original completion date, any claim for such costs shall be
submitted within one year from the newly approved and extended deadline
and, if no deadline is stated in the fire marshal’s letter, within one
year from the date of the letter.
(H) If the fire marshal issues
a written request for additional information, the costs for the
additional work required to address the requests are due within one year
from the date the work is required to be completed by the fire marshal
and if no completion date is stated in the original request, within one
year from the date of the request. This rule shall be applied to all
program tasks performed under all versions of rule
1301:7-9-13 of the Administrative Code.
(I) The application for
reimbursement shall include documentation of all notifications and
reports required under applicable versions of rule
1301:7-9-13 of the Administrative Code.
(J) The application for
reimbursement shall include the following documentation:
(1) Certifications by the
responsible person and the primary consultant or primary contractor that
the information contained in and submitted with the application is true
and correct and represents actual costs incurred;
(2) Invoices, payment records
and any other records documenting actual costs incurred and paid related
to corrective action; and
(3) Any other records,
site-specific information or other relevant information necessary to
demonstrate compliance with cleanup standards and tank rules, or any
applicable order, as required by the director.
(K) A responsible person may
apply for reimbursement for partial completion of a program task
provided that the total amount sought in the application for
reimbursement is not less than fifty per cent of the applicable
deductible of the responsible person except:
(1) For those costs required
to be submitted according to paragraph (F)(2), (G), or (H) of this rule,
the responsible person shall apply for reimbursement as required by
those paragraphs regardless of the total amount sought; and
(2) For those costs associated
with remediation system operation and maintenance and/or monitoring
activities, the director may grant permission to the responsible person
to submit applications for reimbursement in which the total amount being
sought is less than fifty per cent of the applicable deductible of the
responsible person.
Effective: 07/01/2020
Five Year Review Dates:
07/31/2024 and 07/31/2029
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.92
Prior Effective Dates: 08/01/1990, 05/04/1992, 07/01/1994, 09/18/1999,
07/01/2003, 04/01/2005, 04/01/2006, 04/01/2007, 04/01/2008, 11/30/2009,
01/01/2015, 01/01/2019
3737-1-12.1 Mandatory and voluntary
pre-approval of corrective action costs.
(A) For corrective actions to be performed in accordance with all
versions of rule
1301:7-9-13 of the Administrative Code, the responsible person shall
submit to the director an application for initial pre-approval of costs
for pending corrective actions, as follows:
(1) Simultaneously with the submission of an interim response action
notification to the fire marshal, where prior approval of the fire
marshal must be obtained, the responsible person shall submit an
estimated cost and completion schedule for the corrective actions as set
forth in the interim response action notification;
(2) Simultaneously with the submission of a remedial action plan to
the fire marshal, the responsible person shall:
(a) Submit a copy of the remedial action plan with a brief
description of the remedial action alternatives considered, including a
discussion of the reliability, effectiveness, cost, and time needed for
completion, and the rationale for the selected remedial alternative; and
(b) Submit an estimated cost and completion schedule for the remedial
actions as set forth in the remedial action plan;
(3) Simultaneously with the submission to the fire marshal of a tier
3 evaluation plan where the estimated costs exceed six thousand dollars,
the responsible person shall submit a copy of the tier 3 evaluation plan
with a description of the objective; the activities to be conducted; a
discussion of the effectiveness, cost and rationale for selecting the
tier 3 evaluation; and an implementation schedule and projected
completion date;
(4) Simultaneously with the submission to the fire marshal of a plan
to calibrate or disprove the fate and transport model in conjunction
with a tier 2 evaluation report, where the estimated costs exceed six
thousand dollars, the responsible person shall submit a copy of the plan
with a description of the objective; the activities to be conducted; and
an estimated cost and completion schedule;
(5) Simultaneously with the submission to the fire marshal of a
monitoring plan in conjunction with a tier evaluation report, where the
estimated costs exceed six thousand dollars, the responsible person
shall submit an estimated cost and completion schedule for the
corrective actions as set forth in the monitoring plan.
(6) Simultaneously with the
submission to the fire marshal of a free product monitoring plan in
conjunction with a tier 2 evaluation report, the responsible person
shall submit an estimated cost and completion schedule for the
corrective actions as set forth in the free product monitoring plan.
(7) If free product is present
one year after initiating free product recovery activities, the
responsible person shall assess the effectiveness of free product
recovery techniques and shall submit a brief written evaluation of the
reliability, effectiveness, cost, and time needed for free product
recovery in the upcoming year. Said written evaluation shall be
submitted on a yearly basis for each year that recovery is ongoing.
(a) Where free product recovery
has been in place for one year, the first evaluation shall be submitted
within ninety days following the anniversary date of free product
recovery. Subsequent evaluations shall be submitted annually, unless
otherwise determined by the director.
(b) Where free product recovery
is in conjunction with a remedial action plan, the annual free product
evaluation shall be incorporated into the annual remedial action plan
submissions required by this rule.
(B) Where estimated cost and
completion schedules have been pre-approved in accordance with
paragraphs (A)(2), (A)(6), and (A)(7) of this rule, the responsible
person shall submit pre-approval applications annually, unless otherwise
determined by the director, on a form prescribed by the director.
(C) Upon receipt of a
pre-approval application submitted pursuant to this rule, the director
shall evaluate the estimated cost and completion schedule. In evaluating
the estimated cost and completion schedule to be pre-approved, the
director shall consider what is usual, customary and reasonable for
similar corrective action activities and under similar circumstances as
determined from the fund's experience. At the director's discretion,
other options including, but not limited to, pay-for-performance or risk
sharing by the consultant and the responsible person may be considered
for the corrective actions for which pre-approval is sought. The
director shall notify the responsible person of the pre-approved costs
and completion schedule.
(D) The responsible person
shall immediately notify the director and submit a revised estimated
cost and completion schedule for pre-approval as follows:
(1) If during the
implementation of the corrective actions for which pre-approval has been
granted, the actual costs will exceed the pre-approved costs by twenty
per cent or six thousand dollars, whichever is less; or
(2) If during the
implementation of the corrective actions for which pre-approval was not
required by paragraph (A)(3), (A)(4), or (A)(5) of this rule because the
estimated costs did not exceed six thousand dollars, the actual costs
will exceed six thousand dollars.
(E) Where a revised estimated
cost and completion schedule is submitted for pre-approval, the director
may review the estimated cost and completion schedule in accordance with
paragraph (C) of this rule or provide notification to the responsible
person that the estimated cost and completion schedule will be evaluated
when the application for reimbursement is submitted to the board in
accordance with rule
3737-1-12
of the Administrative Code.
(F) Where an estimated cost
and completion schedule is required by this rule, estimated costs shall
be detailed on a time and material basis.
(G) Corrective action costs and
completion schedules not submitted for pre-approval in accordance with
this rule shall be evaluated for reimbursement and subject to reductions
in reimbursement in accordance with rule
3737-1-09
of the Administrative Code.
(H) Where pre-approval is not
required by this rule but is desired by the responsible person, the
responsible person may submit to the director a description of the
proposed corrective actions and an estimated cost and completion
schedule for pre-approval.
(I) Pre-approval shall not
accelerate fund reimbursement for a release. Payment for pre-approved
costs shall be contingent upon the proper submission of an application
for reimbursement in accordance with rule
3737-1-12
of the Administrative Code, and a determination that a responsible
person is eligible to receive reimbursement from the fund.
Effective: 07/01/2020
Five Year Review Dates:
07/31/2019 and 07/31/2024
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.92
Prior Effective Dates: 07/01/1994, 09/18/1999, 07/01/2003, 04/01/2005,
04/01/2008, 11/30/2009, 01/01/2015, 01/01/2019
3737-1-13 Reimbursement application review.
(A) The director or the director's designee shall review the
application for reimbursement and notify the responsible person of any
apparent errors or omissions in the application for reimbursement and
request any additional information or documentation which is required to
complete the application.
(B) Additional information may be requested if information contained
in and submitted with the application for reimbursement is inconsistent
with:
(1) Appropriate corrective actions for the release; or
(2) Approved reports and plans for the release, or where applicable,
an order issued by the fire marshal with regard to the release; or
(3) Costs for corrective action which are usual, customary and
reasonable for similar corrective action activities and under similar
circumstances, as determined from the fund's experience.
(C) Any additional information or documentation requested to complete
the application shall be submitted within ninety days from the date
requested by the director or the director's designee. All costs of
corrective action that are not documented within ninety days after
requested by the director or the director's designee shall not be
reimbursed regardless of whether documentation is later provided.
(D) The fire marshal and the responsible person shall be given written
notice of the director's determination to approve, approve with
modifications, or deny the application.
Effective: 11/30/2009
Five Year Review Dates:
07/31/2024 and 07/31/2029
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.92
Prior Effective Dates: 08/01/1990, 05/04/1992, 07/01/1996, 09/18/1999,
07/01/2003, 04/01/2005, 04/01/2007
3737-1-15 Modifying the deductible or the
reduced deductible.
(A) As a last alternative to maintain solvency of the fund and as a
method of ensuring that funding levels are maintained on the basis of
known and estimated obligations of the fund, the board may modify the
deductible or the reduced deductible. The basis for the modification of
the deductible or the reduced deductible will include but not be limited
to the amount needed to meet the financial soundness objectives set
forth in division (C) of section
3737.91
of the Revised Code.
(B) The board shall notify each responsible person by certified mail
of the change in the deductible or the reduced deductible no later than
the first day of May preceding the first day of the fiscal year in which
the deductible amount will apply. If the certified mail is returned
unclaimed, it shall be served upon the responsible person in accordance
with section
119.07 of the Revised Code.
(C) The applicable deductible for any claim is the deductible in
effect at the time of the release incident for which application for
reimbursement is being made.
Effective: 07/01/2020
Five Year Review Dates:
07/31/2024 and 07/31/2029
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.92
Prior Effective
Dates: 08/01/1990, 05/04/1992, 04/01/2005, 11/30/2009, 01/01/2019
3737-1-16 Third-party claims.
(A) Reimbursement or payment from the fund for compensation paid or
to be paid for third-party claims shall be limited to the reasonable
costs of bodily injury or property damage, if any, if the responsible
person was in compliance with rule
3737-1-19
of the Administrative Code at the time the judgment or settlement was
entered and the responsible person has been determined eligible for
reimbursement for the third-party claim.
(B) Upon notifying the board of a third-party claim pursuant to rule
3737-1-19
of the Administrative Code, the responsible person shall keep the board
informed of the status of the third-party claim including but not
limited to any pending negotiations, litigation, mediations,
settlements, or judgments.
(C) Where there has been a judgment or settlement of a third-party
lawsuit, the director shall determine and reimburse only those portions,
if any, of the judgment or settlement which apply to bodily injury or
property damage as defined in paragraphs (A)(3) and (A)(22) of rule
3737-1-03
of the Administrative Code. The board shall have no obligation to pay
for the reasonable costs of bodily injury or property damage that are
not documented in a third-party claim.
(D) The total amount reimbursed, including payment to a third party
under this rule, shall not exceed the maximum disbursement set forth in
division (D)(3) of section
3737.91
of the Revised Code.
(E) Reimbursement or payment from the fund under this rule shall not
include payment or reimbursement for bodily injury or property damage
covered by insurance policies, or that has been or will be paid by any
party under rule
3737-1-22
of the Administrative Code.
(F) Determination of third-party eligibility for the responsible
person does not constitute an obligation for reimbursement from the
fund.
(G) Nothing in this rule precludes the board from participating or
intervening in any pending negotiations, litigation, mediations, or
settlement discussions or entering into a settlement with either the
responsible person or the third party.
(H) Nothing in this rule shall be construed that the board is acting
as a representative of the responsible person.
Effective: 07/01/2020
Five Year Review Dates:
07/31/2019 and 07/31/2024
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.92
Prior Effective
Dates: 08/01/1990, 07/01/1994, 07/01/2003, 11/30/2009, 01/01/2015
3737-1-17 Petroleum underground storage
tank linked deposit program.
(A) In order to participate in the petroleum underground storage tank
linked deposit program an applicant must:
(1) Be headquartered in the state of Ohio;
(2) Own six or fewer tanks exclusively in Ohio;
(3) Be organized for profit;
(4) Have a total annual revenue of not more than two million dollars
and fewer than fifty employees;
(5) Apply to an eligible lending institution; and
(6) Certify that the reduced rate loan will be used exclusively for
the replacement or upgrading of one or more petroleum underground
storage tanks or tank systems in compliance with division (A) of section
3737.88
of the Revised Code.
(B) The board upon receipt of a linked deposit application from the
eligible lending institution may accept or reject the application on the
basis of:
(1) The board's evaluation of the eligible owner and the amount to be
deposited from the petroleum underground storage tank financial
assurance fund including:
(a) The manner in which the linked deposit benefit will materially
contribute to the relative financial need of the business in question;
(b) The economic needs of the area in which the owner's tanks are
located;
(c) Whether it appears from the linked deposit application that
the replacement or improvement of the petroleum underground storage
tanks or tank system will allow the eligible owner to continue
operations at present levels in an environmentally sound manner; and
(d) Such other factors as the board considers appropriate.
(2) The criteria set forth in paragraph (A) of this rule.
(3) Whether the amount of the linked deposit requested by the
eligible lending institution is no greater than one hundred thousand
dollars.
(C) The board may on an annual basis commit no more than ten percent
of the gross receipts of the annual billing of the petroleum underground
storage tank financial assurance fund created under section
3737.91 of the Revised
Code to be included in the petroleum underground storage tank linked
deposit program.
Effective: 01/01/2015
Five Year Review Dates:
07/31/2024 and 07/31/2029
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.96, 3737.97
Prior Effective
Dates: 08/01/1990, 05/04/1992, 07/01/1996, 04/01/1997
3737-1-18 Certificate of coverage.
(A) The board shall issue a certificate of coverage to any responsible
person who has met the criteria of division (D) of section
3737.91
of the Revised Code and rule
3737-1-04
of the Administrative Code.
(B) One master certificate of coverage will be issued for each
responsible person making payment to the fund and a facility certificate
of coverage will be issued for each assured facility site.
(C) The certificate of coverage shall contain the following
information:
(1) The amount of coverage to which the responsible person is
entitled from the fund;
(2) The time period for which the certificate provides coverage; and
(3) The number of tanks which are included in the coverage.
Effective: 07/01/2020
Five Year Review Dates:
07/31/2024 and 07/31/2029
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.91
Prior Effective
Dates: 08/01/1990, 05/04/1992, 07/01/1994, 11/30/2009, 01/01/2015
3737-1-19 Establishing fund eligibility
for third-party claims.
(A) As a prerequisite to determining fund payment or reimbursement for
compensation paid or to be paid for third-party claims for bodily injury
or property damages caused by the accidental release of petroleum
resulting in the need for corrective action, the director of the fund
shall issue a determination of eligibility where all of the following
conditions are established:
(1) Receipt of an application for eligibility, from a responsible
person, for third-party bodily injury or third-party property damage
caused by an accidental release of petroleum within thirty days from the
first of any of the following events: service of a third-party complaint
against a responsible person, the submission of a third-party demand for
settlement, or notice of representation of a third party in a lawsuit
against a responsible person. Where a third-party eligibility
application is incomplete, the director or the director's designee may
make a written request for additional information. The responsible
person shall supply the additional information in writing and within
sixty days from the date of the request. If the responsible person fails
to make a written response within sixty days from the date of the
request, the director or the director's designee shall make a second
request for the information and shall notify the responsible person that
failure to respond within thirty days from the date of the second
request shall result in an eligibility denial. If the responsible person
fails to make a written response within thirty days from the date the
second request is sent, eligibility shall be denied;
(2) At the time of the release incident, a responsible person
possessed a valid certificate of coverage, issued pursuant to rule
3737-1-18
of the Administrative Code and the validity of which has been maintained
pursuant to paragraph (E) of rule
3737-1-04
of the Administrative Code, for the petroleum underground storage tank
system from which the release occurred;
(3) One of the following applies:
(a) At the time of the release incident, the petroleum underground
storage tank system from which the release occurred was registered in
compliance with rules adopted by the fire marshal under section
3737.88
of the Revised Code;
(b) The fire marshal has recommended that payment or reimbursement be
made because good cause existed for the responsible person's failure to
have so registered the petroleum underground storage tank system, and
the responsible person has registered the petroleum underground storage
tank system with the fire marshal and paid all back registration fees
payable under those rules for registration of the system from the time
the responsible person should have, but failed to register the system.
(4) The fire marshal has determined that, when the claim was filed, a
responsible person was in compliance with all orders issued under
sections
3737.88 and
3737.882
of the Revised Code regarding the petroleum underground storage tank
system from which the release occurred;
(5) A responsible person demonstrates financial responsibility for the
deductible amount applicable under section
3737.91
of the Revised Code for the petroleum underground storage tank system
from which the release occurred;
(6) The responsible person has not falsified any attestation contained
on a registration application required by rules adopted under section
3737.88
of the Revised Code;
(7) The responsible person has met the petroleum release, suspected
release, and confirmed release reporting requirements set forth in rule
1301:7-9-13 of the Administrative Code;
(8) At the time of the release incident, the petroleum underground
storage tank system from which the release occurred was in compliance
with rules, other than rules regarding registration, adopted by the fire
marshal under section
3737.88
of the Revised Code; and
(9) The responsible person has been determined eligible for payment
of or reimbursement for eligible corrective action costs pursuant to
rule
3737-1-07 of the Administrative Code.
(B) A responsible person determined eligible pursuant to paragraph (A)
of this rule for fund payment or reimbursement shall maintain
eligibility to the fund by doing all of the following:
(1) Maintaining all records required to be kept by this chapter;
(2) Paying all fees assessed;
(3) Maintaining compliance with all orders issued pursuant to
sections
3737.88 and
3737.882
of the Revised Code; and
(4) Maintaining compliance with applicable rules for petroleum
underground storage tank systems adopted by the fire marshal under
section
3737.88 of the Revised Code for the underground storage tank system
from which the release occurred.
(C) When the director has reason to believe that a responsible person
determined eligible to claim against the financial assurance fund
pursuant to paragraph (A) of this rule has failed to maintain fund
eligibility pursuant to paragraph (B) of this rule, the director shall
issue a notice of pending fund ineligibility. The responsible person
shall have thirty days from the mailing of such notice to either provide
evidence of compliance with all fund eligibility requirements or take
all necessary steps to correct the non-compliance.
If, after thirty days from the mailing of the notice of pending fund
ineligibility, the responsible person fails to resolve the
non-compliance, the director shall issue a determination of fund
ineligibility immediately nullifying any previously determined
eligibility for disbursement from the financial assurance fund. The
director shall provide the fire marshal with a copy of the determination
issued pursuant to this paragraph.
(D) A responsible person or the fire marshal may file written
objections with the board to the director's determination of fund
ineligibility no later than thirty days from the mailing of the
determination of fund ineligibility. The board upon receipt of the
objections shall appoint a referee to conduct an adjudication hearing on
the determination in accordance with section
119.09 of
the Revised Code.
(E) Determination of fund eligibility does not constitute an
obligation for reimbursement from the fund.
Effective: 07/01/2020
Five Year Review Dates:
07/31/2024 and 07/31/2029
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.92
Prior Effective Dates: 08/01/1990, 05/04/1992, 04/26/1993, 07/01/1994,
07/01/1996, 09/18/1999, 07/01/2003, 04/01/2005, 11/30/2009, 01/01/2015,
07/01/2015, 01/01/2019
3737-1-20 Fees for materials and
services.
Reasonable fees may be charged to persons requesting materials or
services from the board.
Effective: 01/01/2015
Five Year Review Dates:
07/31/2024 and 07/31/2029
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.90
Prior Effective
Dates: 05/04/1992, 11/30/2009
3737-1-21 Obligated account.
Prior to the beginning of each fiscal year, the director shall propose
that monies be obligated for reimbursement of corrective action costs.
The proposed amount to be obligated shall be only that which is
reasonably estimated by the director to be paid out for such costs in
the upcoming fiscal year. Prior to the start of the upcoming fiscal
year, the board shall consider the proposal and approve the amount of
monies, representing estimated upcoming fiscal year claim
reimbursements, to be transferred, during the first quarter of the
upcoming fiscal year, to a special account named obligated account and
be expressly used for reimbursements of corrective action costs.
Monies not placed in the obligated account, the debt service account or
accounts, the debt service reserve account or accounts, in certificates
of deposit purchased for linked deposits, or in the unclaimed monies
trust account shall remain in the unobligated balance. At the end of the
fiscal year in which monies have been obligated, any excess monies in
the obligated account shall remain in that account to reduce the
transfer of monies into the obligated account for reimbursements of
corrective action costs in the succeeding fiscal year.
If, during the fiscal year, the monies set aside in the obligated
account are anticipated to be insufficient to cover reimbursements of
corrective action costs for the remainder of the current fiscal year,
the director may draw monies from the unobligated balance to obligate
additional monies as necessary for reimbursements of corrective action
costs, subject to board approval.
Effective: 01/01/2015
Five Year Review Dates:
07/31/2024 and 07/31/2029
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.91, 3737.92
Prior Effective Dates: 04/01/1997, 09/18/1999, 04/01/2007,
11/30/2009
3737-1-22
Subrogation.
(A) The responsible person shall not in any manner do any act that
will impair the board's subrogation rights. The responsible person
shall:
(1) Notify the board in writing within thirty days of any action by
another party causing and/or contributing to an accidental release of
petroleum from an assured underground storage tank system or other
sources;
(2) Notify the board of the identity of all other parties against
whom the responsible person has or may have a right of recovery;
(3) Notify the other party(s) of the board's right to subrogation
under division (I) of section
3737.92
of the Revised Code and that the board may assert its right by written
correspondence with the responsible person, the other party(s) or their
legal representatives, or may settle or institute and pursue legal
proceedings against the other party(s) independently or in conjunction
with the responsible person;
(4) Notify the other party(s) that no settlement, compromise,
judgment, award, or other recovery in any action or claim by the
responsible person shall be binding on the board;
(5) Notify the other party(s) that any settlement, compromise,
judgment, award, or other recovery in favor of the responsible person
shall not preclude the board from enforcing its subrogation rights
against the other party(s); and
(6) Notify the other party(s) that no attorney fees, court costs or
other litigation costs shall be assessed against the board for enforcing
its subrogation rights.
(B) The responsible person shall cooperate with the board in
enforcement of its subrogation rights, including but not limited to:
(1) Providing documents, testimony, and access to experts relating to
the other party(s) causing or contributing to the accidental release of
petroleum;
(2) Providing reasonable advance notification to the board of any and
all settlement meetings; and
(3) Not enter into any settlement agreement without prior notice to
and authorization by the board.
(C) Where reimbursement for the costs of corrective action and
third-party claims has been withheld pursuant to rule
3737-1-09
of the Administrative Code, and the board recovers any monies under its
subrogation rights, the board may reimburse the responsible person the
amount withheld only if the amount recovered under the board's
subrogation claim is greater than the amount withheld from the
responsible person.
(D) If the responsible person has received any monies from any other
party or the responsible person's insurance for reimbursement of
corrective action costs and/or third-party claims, the responsible
person shall indemnify the board the total amount of any monies advanced
or received including repayment to the board of any amount the board has
reimbursed the responsible person or has compensated any third party,
unless the responsible person and the board agree to a lesser amount in
a written settlement agreement.
Effective: 01/01/2015
Five Year Review Dates:
07/31/2024 and 07/31/2029
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.92
Prior Effective Dates: 07/01/2003, 04/01/2007, 04/01/2008,
11/30/2009
3737-1-23 Access and maintenance of
confidential personal information.
For purposes of confidential personal information that is maintained by
the board, the following definitions apply:
(A) Definitions:
(1) "Access" as a noun means an instance of copying, viewing, or
otherwise perceiving whereas "access" as a verb means to copy, view, or
otherwise perceive.
(2) "Acquisition of a new computer system" means the purchase of a
"computer system," as defined in this rule, that is not a computer
system currently in place nor one for which the acquisition process has
been initiated as of the effective date of this rule addressing
requirements in section
1347.15
of the Revised Code.
(3) "Computer system" means hardware, software, and other equipment
that stores, maintains, or retrieves personal information using
electronic data processing.
(4) "Confidential personal information" has the same meaning as
defined by division (A)(1) of section
1347.15
of the Revised Code and identified by paragraph (D) of this rule.
(5) "Employee of the board" means each employee of the board
regardless of whether he/she holds an appointed office or position
within the board. "Employee of the board" is limited to the petroleum
underground storage tank release compensation board.
(6) "Incidental contact" means contact with the information that is
secondary or tangential to the primary purpose of the activity that
resulted in the contact.
(7) "Individual contact" means a natural person or the natural
person's authorized representative, legal counsel, legal custodian, or
legal guardian.
(8) "Information owner" means the individual appointed in accordance
with division (A) of section
1347.05
of the Revised Code to be directly responsible for a system.
(9) "Person" means a natural person.
(10) "Personal information" has the same meaning as defined in
division (E) of section
1347.01
of the Revised Code.
(11) "Personal information system" means a "system" that
"maintains" "personal information" as those terms are defined in section
1347.01
of the Revised Code. "System" includes manual and computer systems.
(12) "Research" means a methodical investigation into a subject.
(13) "Routine" means commonplace, regular, habitual, or ordinary.
(14) "Routine information that is maintained for the purpose of
internal office administration, the use of which would not adversely
affect a person" as that phrase is used in division (F) of section
1347.01
of the Revised Code means personal information relating to employees of
the board and maintained by the board for internal administrative and
human resource purposes.
(15) "System" has the same meaning as defined by division (F) of
section
1347.01 of the Revised Code.
(16) "Upgrade" means a substantial redesign of an existing
computer system for the purpose of providing a substantial amount of new
application functionality, or application modifications that would
involve substantial administrative or fiscal resources to implement, but
would not include maintenance, minor updates and patches, or
modifications that entail a limited addition of functionality due to
changes in business or legal requirements.
(B) For personal information systems, whether manual or computer
systems that contain confidential personal information, the following
rules apply:
(1) Criteria for accessing confidential personal information.
Employees of the board are authorized to access personal information
systems for valid reasons in accordance with paragraph (C)(1) of this
rule to the extent required to perform assigned job duties;
(2) Individual's request for a list of confidential personal
information. Upon the signed written request of any individual for a
list of confidential personal information about the individual
maintained by the board, the employee responding to such request shall
do all of the following:
(a) Verify the identity of the individual by a method that provides
safeguards commensurate with the risk associated with the confidential
personal information;
(b) Provide to the individual the list of confidential personal
information that does not relate to an investigation about the
individual or is otherwise not excluded from the scope of Chapter
1347. of the Revised Code;
and
(c) If all information relates to an investigation about that
individual, inform the individual that the board has no confidential
personal information about the individual that is responsive to the
individual's request.
(3) Notice of invalid access.
(a) Upon discovery or notification that confidential personal
information of a person has been accessed by an employee for an invalid
reason, the board shall notify the person whose information was
invalidly accessed as soon as practical and to the extent known at the
time. However, notification shall be delayed for a period of time
necessary to ensure that the notification would not delay or impede an
investigation or jeopardize homeland or national security. Additionally,
the board may delay the notification consistent with any measures
necessary to determine the scope of the invalid access, including which
individual's confidential personal information invalidly was accessed,
and to restore the reasonable integrity of the system.
(b) "Investigation" as used in this paragraph means the investigation
of the circumstances and involvement of an employee surrounding the
invalid access of the confidential personal information. Once the board
determines that notification would not delay or impede an investigation,
the board shall disclose the access to confidential personal information
made for an invalid reason to the person.
(c) Notification shall inform the person of the type of confidential
personal information accessed and the date(s) of the invalid access.
(d) Notification may be made by any method reasonable designed to
accurately inform the person of the invalid access, including written,
electronic, or telephone notice.
(4) Appointment of a data privacy point of contact. The director
shall designate an employee to serve as the data privacy point of
contact. The data privacy point of contact shall work with the chief
privacy officer within the office of information technology to assist
with both the implementation of privacy protections for the confidential
personal information that the board maintains as well as work to ensure
compliance with section
1347.15
of the Revised Code and this rule.
(5) Completion of a privacy impact assessment. The director shall
designate an employee to serve as the data privacy point of contact who
shall timely complete the privacy impact assessment form developed by
the office of information technology.
(C) Pursuant to the requirements of division (B)(2) of section
1347.15
of the Revised Code, this rule contains a list of valid reasons,
directly related to the board's exercise of its powers or duties, for
which only employees of the board may access confidential personal
information regardless of whether the personal information system is a
manual system or computer system:
(1) Performing the following functions constitutes valid reasons for
authorized employees of the board to access confidential personal
information:
(a) Responding to a public records request;
(b) Responding to a request from an individual for the list of
confidential personal information the board maintains regarding that
individual;
(c) Administering a constitutional provision or duty;
(d) Administering a statutory provision or duty;
(e) Administering an administrative rule, provision or duty;
(f) Complying with any state or federal program requirements;
(g) Processing or payment of claims or otherwise administering a
program with individual participants or beneficiaries;
(h) Auditing purposes;
(i) Investigation or law enforcement purposes;
(j) Administrative hearings;
(k) Litigation, complying with an order of the court, or
subpoena;
(l) Human resource matters (e.g. hiring, promotion, demotion, discharge,
salary/compensation issues, leave requests/issues, time card
approvals/issues);
(m) Complying with an executive order or policy; or
(n) Complying with an agency policy or state administrative policy
issued by the department of administrative services, the office of
budget and management or other similar agency.
(D) The following federal statutes or regulations or state statutes
and administrative rules make personal information maintained by the
board confidential and identify the confidential personal information
within the scope of rules promulgated by the board in accordance with
section
1347.15 of the Revised Code:
(1) Social security numbers: 5 U.S.C. 552a . , "State ex rel Beacon
Journal v. Akron (1994), 70 Ohio St. 3d 605.", unless the individual was
told that the number would be disclosed.
(2) Records exempt from disclosure under the Ohio Public Records Act:
Chapter 149.
of the Revised Code.
(E) For personal information systems that are computer systems and
contain confidential personal information, the board shall do the
following:
(1) Access restrictions. Access to confidential personal information
that is kept electronically shall require a password or other
authentication measure.
(2) Acquisition of a new computer system. When the board acquires a
new computer system that stores, manages or contains confidential
personal information, the board shall include a mechanism for recording
specific access by employees of the board to the system.
(3) Upgrading existing computer systems. When the board modifies an
existing computer system that stores, manages or contains confidential
personal information, the board shall make a determination whether the
modification constitutes an upgrade. Any upgrades to a computer system
shall include a mechanism for recording specific access by employees of
the board to confidential personal information in the system.
(4) Logging requirements regarding confidential personal information
in existing manual and computer systems.
(a) The board shall require employees of the board who access
confidential personal information within the computer system to maintain
a log that records that access.
(b) Access to confidential information is not required to be entered
into the log under the following circumstances:
(i) The employee of the board is accessing confidential personal
information for official authority purposes, including research, and the
access is not specifically directed toward a specifically named
individual or a group of specifically named individuals.
(ii) The employee of the board is accessing confidential personal
information for routine office procedures and the access is not
specifically directed toward a specifically named individual or a group
of specifically named individuals.
(iii) The employee of the board comes into incidental contact with
confidential personal information and the access of the information is
not specifically directed toward a specifically named individual or a
group of specifically named individuals.
(iv) The employee of the board accesses confidential personal
information to the extent necessary to perform assigned job duties and
the access is for a valid reason as defined in paragraph (C)(1) of this
rule.
(v) The employee of the board accesses confidential personal
information about an individual based upon a request made under either
of the following circumstances:
(a) The individual requests confidential personal information about
himself/herself.
(b) The individual makes a request that the board takes some action
on that individual's behalf and accessing the confidential personal
information is required in order to consider or process that request.
(c) For purposes of this paragraph, the director may choose the form
or forms of logging, whether in electronic or paper formats.
(F) Log management. The director or designee shall maintain an
electronic or paper log that records access to confidential personal
information on existing computer systems for any reason not specified in
paragraph (D)(4)(b) of this rule. The director shall issue a policy that
specifies the following:
(1) What information shall be captured in the log;
(2) How the log is to be stored; and
(3) How long information kept in the log is to be retained.
Effective: 01/01/2015
Five Year Review Dates:
07/31/2019 and 07/31/2024
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 1347.15
