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SUBSTITUTE HOUSE BILL NUMBER 421*
AN ACT
To amend sections 3737.01,
3737.02, 3737.87,
3737.88, 3737.99, and
3750.13; to amend, for the purpose of adopting new section numbers as
indicated in parentheses, sections 3737.87 (3737.88),
3737.88 (3737.882),
and 3737.90 (3737.80); and to enact new sections
3737.87 and 3737.90 and
sections 3737.881, 3737.89,
3737.891, 3737.91,
3737.92, 3737.93,
3737.94,
3737.941, 3737.942,
3737.943, 3737.944,
3737.945, 3737.946,
3737.947,
3737.948, 3737.95,
3737.96, 3737.97, and
3737.98 of the Revised Code to
establish the petroleum underground storage tank financial assurance fund
and program to reimburse owners and operators of underground petroleum
storage tanks for the costs of corrective actions and compensation paid to
third parties for bodily injury or property damage resulting from releases
of petroleum from those tanks; to assess an annual fee and authorize the
assessment of supplemental fees on those owners and operators for the
purposes of paying the costs of implementing, administering, and enforcing
that program, paying the reimbursements, and paying the principal and
interest on revenue bonds issued to capitalize the fund; to establish the
petroleum underground storage tank release compensation board to implement
and administer that program; to require the certification of underground
storage tank installers by the fire marshal; to create the petroleum
underground storage tank linked deposit program; and to make an
appropriation.
*
Includes subsequent changes made to section 3737.90 by substitute S.B.
396, effective April 11, 1991, section 3737.91 by amended substitute S.B.
359, effective December 22, 1992, section 3737.947 by H.B. 107 effective
October 23, 1993, section 3737.947 by H.B. 7, effective September 1, 1995,
section 3737.891 repealed by S.B. 162, effective October 29, 1995, section
3737.92 by amended substitute H.B. 748, effective September 17, 1996 and
sections 3737.91 and 3737.92 by substitute S.B. 46 effective December 18,
1997.
BE IT ENACTED
BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
SECTION 1:
That sections 3737.01,
3737.02, 3737.87,
3737.88, 3737.99, and
3750.13 be
amended; sections 3737.87 (3737.88),
3737.88 (3737.882), and
3737.90
(3737.80) be amended for the purpose of adopting new section numbers as
indicated in parentheses; and new sections 3737.87 and
3737.90 and
sections 3737.881, 3737.89,
3737.891, 3737.91,
3737.92, 3737.93,
3737.94,
3737.941, 3737.942,
3737.943, 3737.944,
3737.945, 3737.946,
3737.947,
3737.948, 3737.95,
3737.96, 3737.97, and
3737.98 of the Revised Code be
enacted to read as follows:
Sec. 3737.01.
As used in this
chapter:
(A)
"Assistant fire marshal" means any person directly employed by the fire
marshal who is involved in fire inspection, fire investigation, fire
prevention, hazardous materials incidents, or the regulation of
underground storage tank systems as that term is defined in section
3737.87 of the Revised Code.
(B) "Consumer
goods" means any item sold, leased, or rented primarily for personal or
household use.
(C) "Fire
agency" means any state or local fire service or agency whose function is
to examine the property of another person for the purpose of identifying
fire safety hazards.
(D) "Fire
safety inspector" means any person who is a member of the civil service,
as defined in section 124.01 of the Revised Code, or who is employed by or
voluntarily serves a village or township, and who examines the property of
another person for the purpose of identifying fire safety hazards.
(E) "Person,"
in addition to the meaning in section 1.59 of the Revised Code, means the
state and any political subdivision of the state, and any other entity
public or private.
(F)
"Responsible person" means the person responsible for compliance with the
state fire Code, including, but not limited to, the owner, lessee, agent,
operator, or occupant of a building, premises, or vehicle.
Sec. 3737.02.
(A) The fire
marshal may collect fees to cover the costs of performing inspections and
other duties that he is authorized or required by law to perform. Except
as provided in division (B) of this section, all fees collected by the
fire marshal shall be deposited to the credit of the fire marshal's fund.
(B) Fees
collected under sections 3737.88 and 3737.881 of the Revised Code for
operation of the underground storage tank and underground storage tank
installer certification programs, moneys recovered under section 3737.89
of the Revised Code for the state's costs of undertaking corrective or
enforcement actions under that section or section 3737.882 of the Revised
Code, and fines and penalties collected under section 3737.882 of the
Revised Code shall be credited to the underground storage tank
administration fund, which is hereby created in the state treasury. Moneys
credited to the underground storage tank administration fund shall be used
by the fire marshal for implementation and enforcement of underground
storage tank, corrective action, and installer certification programs
under sections 3737.88 to 3737.89 of the Revised Code.
(C) The fire
marshal shall take all actions necessary to obtain any federal funding
available to carry out his responsibilities under sections 3737.88 to
3737.89 of the Revised Code and federal laws regarding the cleaning up of
releases of petroleum, as "release" is defined in section 3737.87 of the
Revised Code, including, without limitation, any federal funds that are
available to reimburse the state for the costs of undertaking corrective
actions for such releases of petroleum. The state may, when appropriate,
return to the United States any federal funds recovered under sections
3737.882 and 3737.89 of the Revised Code.
Sec. 3737.80.
In any emergency
situation relating to the prevention of an imminent release of a hazardous
material, to the cleanup or disposal of a hazardous material that has been
released, or to the related mitigation of the effects of a release of a
hazardous material, the chief of the fire department in whose jurisdiction
the emergency situation is occurring or his designee is responsible for
primary coordination of the on‑scene activities of all agencies of the
state, the United States government, and political subdivisions that are
responding to the emergency situation until the chief relinquishes that
responsibility to a representative of one of the responding public
agencies and so notifies that representative.
As used in this
section, "hazardous material" means any material that is designated as
such under the "Hazardous Materials Transportation Act," 88 stat. 2156
(1975), 49 U.S.C.A. 1801, as amended, and regulations adopted under it.
Sec. 3737.87.
As used in sections
3737.87 to 3737.98 of the Revised Code:
(A)
"Accidental release" means any sudden or non-sudden release of petroleum
that was neither expected nor intended by the owner or operator of the
applicable underground storage tank system and that results in the need
for corrective action or compensation for bodily injury or property
damage.
(B)
"Corrective action" means any action necessary to protect human health and
the environment in the event of a release of petroleum into the
environment, including, without limitation, any action necessary to
monitor, assess, and evaluate the release. In the instance of a suspected
release, the term includes, without limitation, an investigation to
confirm or disprove the occurrence of the release. In the instance of a
confirmed release, the term includes, without limitation, the initial
corrective action taken under section 3737.88 or 3737.882 of the Revised
Code and rules adopted or orders issued under those sections and any
action taken consistent with a remedial action to clean up contaminated
ground water, surface water, soils, and subsurface material and to address
the residual effects of a release after the initial corrective action is
taken.
(C) "Eligible
lending institution" means a financial institution that is eligible to
make commercial loans, is a public depository of state funds under section
135.03 of the Revised Code, and agrees to participate in the petroleum
underground storage tank linked deposit program provided for in sections
3737.95 to 3737.98 of the Revised Code.
(D) "Eligible
owner" means any person that owns six or fewer petroleum underground
storage tanks comprising a petroleum underground storage tank or
underground storage tank system.
(E)
"Installer" means a person who supervises the installation of, performance
of major repairs on site to, abandonment of, or removal of underground
storage tank systems.
(F) "Major
repair" means the restoration of a tank or an underground storage tank
system component that has caused a release of a product from the
underground storage tank system, the upgrading of a tank or an underground
storage tank system component, or the modification of a tank or an
underground storage tank system component. "Major repair" does not include
routine maintenance for normal operational upkeep to prevent an
underground storage tank system from releasing a product.
(G)
"Operator" means the person in daily control of, or having responsibility
for the daily operation of, an underground storage tank system.
(H) "Owner"
means:
(1) In the instance of an underground storage tank system in use on
November 8, 1984, or brought into use after that date, the person who owns
the underground storage tank system;
(2) In the instance of an underground storage tank system in use
before November 8, 1984, that was no longer in use on that date, the
person who owned the underground storage tank system immediately before
the discontinuation of its use.
The
term includes any person who holds, or, in the instance of an underground
storage tank system in use before November 8, 1984, but no longer in use
on that date, any person who held immediately before the discontinuation
of its use, a legal, equitable, or possessory interest of any kind in an
underground storage tank system or in the property on which the
underground storage tank system is located, including, without limitation,
a trust, vendor, vendee, lessor, or lessee. The term does not include any
person who, without participating in the management of an underground
storage tank system and without otherwise being engaged in petroleum
production, refining, or marketing, holds indicia of ownership in an
underground storage tank system primarily to protect the person's security
interest in it.
(I) "Person," in addition to the meaning in section 3737.01 of the Revised
Code, means the United States and any department, agency, or
instrumentality thereof.
(J)
"Petroleum" means petroleum, including crude oil or any fraction thereof,
that is a liquid at the temperature of sixty degrees Fahrenheit and the
pressure of fourteen and seven‑ tenths pounds per square inch absolute.
The term includes, without limitation, motor fuels, jet fuels, distillate
fuel oils, residual fuel oils, lubricants, petroleum solvents, and used
oils.
(K)
"Petroleum underground storage tank linked deposit" means a certificate of
deposit placed by the treasurer of state with an eligible lending
institution pursuant to sections 3737.95 to 3737.98 of the Revised Code.
(L)
"Regulated substance" means petroleum or any substance identified or
listed as a hazardous substance in rules adopted under division (D) of
section 3737.88 of the Revised Code.
(M) "Release"
means any spilling, leaking, emitting, discharging, escaping, leaching, or
disposing of from an underground storage tank system into ground or
surface water or subsurface soils or otherwise into the environment.
(N)
Notwithstanding division (F) of section 3737.01 of the Revised Code,
"responsible person" means the person who is the owner or operator of an
underground storage tank system.
(O) "Tank"
means a stationary device designed to contain an accumulation of regulated
substances that is constructed of manmade materials.
(P) "Underground storage tank" means one or any combination of tanks,
including the underground pipes connected thereto, that are used to
contain an accumulation of regulated substances the volume of which,
including the volume of the underground pipes connected thereto, is ten
percent or more beneath the surface of the ground.
The
term does not include any of the following or any pipes connected to any
of the following:
(1) Pipeline facilities, including gathering lines, regulated under
the "Natural Gas Pipeline Safety Act of 1968," 82 Stat. 720, 49 U.S.C.A.
1671, as amended, or the "Hazardous Liquid Pipeline Safety Act of 1979,"
93 Stat. 1003, 49 U.S.C.A. 2001, as amended;
(2) Farm or residential tanks of one thousand one hundred gallons
or less capacity used for storing motor fuel for noncommercial purposes;
(3)
Tanks used for storing heating fuel for consumptive use on the premises
where stored;
(4)
Surface impoundments, pits, ponds, or lagoons;
(5)
Storm or waste water collection systems;
(6) Flow‑through process tanks;
(7)
Storage tanks located in underground areas, including, without limitation,
basements,
cellars, mine
workings, drifts, shafts, or tunnels, when the tanks are located on or
above the surface of the floor;
(8)
Septic tanks;
(9)
Liquid traps or associated gathering lines directly related to oil or gas
production and gathering operations.
(Q) "Underground storage tank system" means an underground storage tank and
the connected underground piping, underground ancillary equipment, and
containment system, if any.
(R) "Revenues" means all fees, premiums, and charges paid by owners and
operators of petroleum underground storage tanks to the petroleum
underground storage tank release compensation board created in section
3737.90 of the Revised Code; proceeds received by the board from any
insurance, condemnation, or guaranty; the proceeds of petroleum
underground storage tank revenue bonds; and the income and profits from
the investment of any such revenues.
(S) "Revenue
bonds," unless the context indicates a different meaning or intent, means
petroleum underground storage tank revenue bonds and petroleum underground
storage tank revenue refunding bonds that are issued by the petroleum
underground storage tank release compensation board pursuant to sections
3737.90 to 3737.948 of the Revised Code.
Sec. 3737.88.
(A) (1) The fire marshal shall have responsibility for implementation
of the underground storage
tank
program and corrective action program for
releases from underground petroleum storage tanks established by the
"Resource Conservation and Recovery Act of 1976," 90 stat. 2795, 42 U.S.C.A. 6901, as amended. To implement the program, the fire marshal may
adopt, amend, and rescind such rules, conduct such inspections, require
annual registration of underground storage tanks, issue such citations and
orders to enforce those rules, and perform such other duties, as are
consistent with those programs. The fire marshal, by rule, may delegate
the authority to conduct inspections of underground storage tanks to
certified fire safety inspectors.
(2) In the place of any rules regarding release containment and
release detection for underground storage tanks adopted under division
(A)(1) of this section, the fire marshal, by rule, shall designate areas
as being sensitive for the protection of human health and the environment
and adopt alternative rules regarding release containment and release
detection methods for new and upgraded underground storage tank systems
located in those areas. In designating such areas, the fire marshal shall
take into consideration such factors as soil conditions, hydrogeology,
water use, and the location of public and private water supplies. Not
later than one year after the effective date of this amendment, the fire
marshal shall file the rules required under this division with the
secretary of state, director of the legislative service commission, and
joint committee on agency rule review in accordance with divisions (B) and
(H) of section 119.03 of the Revised Code.
(B) Before
adopting any rule under this section or section 3737.881 or 3737.882 of
the Revised Code, the fire marshal shall file written notice of his
proposed rule with the chairman of the state fire commission, and, within
sixty days after notice is filed, the commission may file responses to or
comments on and may recommend alternative or supplementary rules to the
fire marshal. At the end of the sixty‑day period or upon the filing of
responses, comments, or recommendations by the commission, the fire
marshal may adopt the rule filed with the commission or any alternative or
supplementary rule recommended by the commission.
(C) The fire
commission may recommend courses of action to be taken by the fire marshal
in carrying out his duties under this section. The commission shall file
its recommendations in the office of the fire marshal, and, within sixty
days after the recommendations are filed, the fire marshal shall file with
the chairman of the commission his comments on, and proposed action in
response to, the recommendations.
(D) For the
purposes of sections 3737.87 to 3737.89 of the Revised Code, the fire
marshal shall adopt, and may amend and rescind, rules identifying or
listing hazardous substances. The rules shall be consistent with and
equivalent in scope, coverage, and content to regulations identifying or
listing hazardous substances adopted under the "Comprehensive
Environmental Response, Compensation, and Liability Act of 1980," 94 stat.
2779, 42 U.S.C.A. 9602, As amended, except that the fire marshal shall not
identify or list as a hazardous substance any hazardous waste identified
or listed in rules adopted under division (A) of section 3734.12 of the
Revised Code.
(E) The fire
marshal shall adopt, amend, and rescind rules under sections 3737.88 to
3737.882 of the Revised Code in accordance with Chapter 119. of the
Revised Code.
Sec. 3737.881.
(A) The fire
marshal shall certify underground storage tank systems installers who meet
the standards for certification established in rules adopted under
division (D)(1) of this section, pass the certification examination
required by this division, and pay the certificate fee established in
rules adopted under division (D)(5) of this section. Any individual who
wishes to obtain certification as an installer shall apply to the fire
marshal on a form prescribed by the fire marshal. The application shall be
accompanied by the application and examination fees established in rules
adopted under division (D)(5) of this section.
The
fire marshal shall prescribe an examination designed to test the knowledge
of applicants for certification as underground storage tank system
installers in the installation, repair, abandonment, and removal of those
systems. The examination shall also test the applicants' knowledge and
understanding of the requirements and standards established in rules
adopted under sections 3737.88 and 3737.882 of the Revised Code pertaining
to the installation, repair, abandonment, and removal of those systems.
Installer certifications issued under this division shall be renewed
annually, upon submission of a certification renewal form prescribed by
the fire marshal, provision of proof of successful completion of
continuing education requirements, and payment of the certification
renewal fee established in rules adopted under division (D)(5) of this
section. In addition, the fire marshal may from time to time prescribe an
examination for certification renewal and may require applicants to pass
the examination and pay the fee established for it in rules adopted under
division (D)(5) of this section.
The
fire marshal may, in accordance with Chapter 119. of the Revised Code,
deny, suspend, revoke, or refuse to renew an installer's certification or
renewal thereof if he finds that any of the following applies:
(1) The applicant for certification or certificate holder fails to
meet the standards for certification or renewal thereof under this section
and rules adopted under it;
(2)
The certification was obtained through fraud or misrepresentation;
(3) The certificate holder recklessly caused or permitted a person
under his supervision to install, perform major repairs on site to,
abandon, or remove an underground storage tank system in violation of the
performance standards set forth in rules adopted under section 3737.88 or
3737.882 of the Revised Code.
As used in division (A)(3) of this section, "recklessly" has the same
meaning as in section 2901.22 of the Revised Code.
(B) The fire
marshal shall certify persons who sponsor training programs for
underground storage tank system installers who meet the criteria for
certification established in rules adopted by the fire marshal under
division (D)(4) of this section and pay the certificate fee established in
rules adopted under division (D)(5) of this section. Any person who wishes
to obtain certification to sponsor such a training program shall apply to
the fire marshal on a form prescribed by him. Training program
certificates issued under this division shall expire annually. Upon
submission of a certification renewal application form prescribed by the
fire marshal and payment of the application and certification renewal fees
established in rules adopted under division (D)(5) of this section, the
fire marshal shall issue a training program renewal certificate to the
applicant.
The fire marshal
may, in accordance with Chapter 119. of the Revised Code, deny an
application for, suspend, or revoke a training program certificate or
renewal thereof if he finds that the training program does not or will not
meet the standards for certification established in rules adopted under
division (D)(4) of this section.
(C) The fire
marshal may conduct or cause to be conducted training programs for
underground storage tank systems installers as he considers to be
necessary or appropriate. The fire marshal is not subject to division (B)
of this section with respect to training programs conducted by employees
of the office of the fire marshal.
(D) The fire
marshal shall adopt, and may amend and rescind, rules doing all of the
following:
(1)
Defining the activities that constitute supervision over the installation,
performance of major repairs on site to, abandonment of, and removal of
underground storage tank systems;
(2)
Establishing standards and procedures for certification of underground
storage tank systems installers;
(3) Establishing standards and procedures for continuing education
for certification renewal;
(4)
Establishing standards and procedures for certification of training
programs for installers;
(5) Establishing fees for applications for certifications under
this section, the examinations prescribed under division (A) of this
section, the issuance and renewal of certificates under divisions (A) and
(B) of this section, and attendance at training programs conducted by the
fire marshal under division (C) of this section. Fees received under this
section shall be credited to the underground storage tank administration
fund created in section 3737.02 of the Revised Code and shall be used to
defray the costs of implementing, administering, and enforcing this
section and the rules adopted thereunder, conducting training sessions,
and facilitating prevention of releases.
(6)
That are necessary or appropriate for the implementation, administration,
and enforcement of this section.
(E) Nothing
in this section or the rules adopted under it prohibits an owner or
operator of an underground storage tank system from installing, making
major repairs on site to, abandoning, or removing an underground storage
tank system under the supervision of an installer certified under division
(A) of this section who is a full‑time or part‑time employee of the owner
or operator.
(F) On and
after the date one hundred eighty days after the effective date of this
section, no person shall do any of the following:
(1)
Install, make major repairs on site to, abandon, or remove an underground
storage tank system unless the activity is performed under the supervision
of a qualified individual who holds a valid installer certificate issued
under division (A) of this section;
(2)
Act in the capacity of providing supervision for the installation of,
performance of major repairs on site to, abandonment of, or removal of an
underground storage tank system unless the person holds a valid installer
certificate issued under division (A) of this section;
(3)
Except as provided in division (C) of this section, sponsor a training
program for underground storage tank systems installers unless the person
holds a valid training program certificate issued under division (B) of
this section.
Sec. 3737.882.
(A) If, after
an examination or inspection, the fire marshal or an assistant fire
marshal finds that a release of petroleum is suspected, he shall take such
action as he considers necessary to ensure that a suspected release is
confirmed or disproved and, if the occurrence of a release is confirmed,
to correct the release. These actions may include one or more of the
following:
(1) Issuance of a citation and order requiring the responsible
person to undertake, in a manner consistent with the requirements of
section 9003 of the "Resource Conservation and Recovery Act of 1976," 98
stat. 3279, 42 U.S.C.A. 6991b, as amended, applicable regulations adopted
thereunder, and rules adopted under division (B) of this section, such
actions as are necessary to protect human health and the environment,
including, without limitation, the investigation of a suspected release.
(2)
Requesting the attorney general to bring a civil action for appropriate
relief, including a temporary restraining order or preliminary or
permanent injunction, in the court of common pleas of the county in which
a suspected release is located or in which the release occurred, to obtain
the corrective action necessary to protect human health and the
environment. In granting any such relief, the court shall ensure that the
terms of the temporary restraining order or injunction are sufficient to
provide comprehensive corrective action to protect human health and the
environment.
(3) Entry onto premises and undertaking corrective action with
respect to a release of petroleum if, in his judgment, such action is
necessary to protect human health and the environment. Any corrective
action undertaken by the fire marshal or assistant fire marshal under
division (A)(3) of this section shall be consistent with the requirements
of sections 9003 and 9005 of the "Resource Conservation and Recovery Act
of 1976," 98 stat. 3279, 42 U.S.C.A. 6991b, and 98 Stat. 3284, 42 U.S.C.A.
6991e, respectively, as amended, applicable regulations adopted thereunder,
and rules adopted under division (B) of this section.
(B) The fire
marshal shall adopt, and may amend and rescind, such rules as he considers
necessary to establish standards for corrective actions for suspected and
confirmed releases of petroleum and standards for the recovery of costs
incurred for undertaking corrective or enforcement actions with respect to
such releases. The rules also shall include requirements for financial
responsibility for the cost of corrective actions for and compensation of
bodily injury and property damage incurred by third parties that are
caused by releases of petroleum. Rules regarding financial responsibility
shall, without limitation, require responsible persons to provide evidence
that the parties guaranteeing payment of the deductible amount established
under division (E) or (F) of section 3737.91 of the Revised Code are, at a
minimum, secondarily liable for all corrective action and third‑party
liability costs incurred within the scope of the deductible amount. The
rules shall be consistent with sections 9003 and 9005 of the "Resource
Conservation and Recovery Act of 1976," 98 stat. 3279, 42 U.S.C.A. 6991b,
and 98 Stat. 3284, 42 U.S.C.A. 6991e, respectively, as amended, and
applicable regulations adopted thereunder.
(C) (1) No person shall violate or fail to comply with a rule adopted
under division (A) of section 3737.88 of the Revised Code or division (B)
of this section, and no person shall violate or fail to comply with the
terms of any order issued under division (A) of section 3737.88 of the
Revised Code or division (A)(1) of this section.
(2) Whoever violates division (C)(1) of this section or division
(F) of section 3737.881 of the Revised Code shall pay a civil penalty of
not more than ten thousand dollars for each day that the violation
continues. The fire marshal may, by order, assess a civil penalty under
this division, or he may request the attorney general to bring a civil
action for imposition of the civil penalty in the court of common pleas of
the county in which the violation occurred. If the fire marshal determines
that a responsible person is in violation of division (C)(1) of this
section or division (F) of section 3737.881 of the Revised Code, the fire
marshal may request the attorney general to bring a civil action for
appropriate relief, including a temporary restraining order or preliminary
or permanent injunction, in the court of common pleas of the county in
which the underground storage tank or, in the case of a violation of
division (F)(3) of section 3737.881 of the Revised Code, the training
program that is the subject of the violation is located. The court shall
issue a temporary restraining order or an injunction upon a demonstration
that a violation of division (C)(1) of this section or division (F) of
section 3737.881 of the Revised Code has occurred or is occurring.
Any action brought by the attorney general under this division is a civil
action, governed by the rules of civil procedure and other rules of
practice and procedure applicable to civil actions.
(D) Orders
issued under division (A) of section 3737.88 of the Revised Code and
divisions (A)(1) and (C) of this section, and appeals thereof, are subject
to and governed by Chapter 3745. of the Revised Code. Such orders shall be
issued without the necessity for issuance of a proposed action under that
chapter. For purposes of appeals of any such orders, the term "director"
as used in Chapter 3745. of the Revised Code includes the fire marshal and
an assistant fire marshal.
Sec. 3737.89.
(A) Except
when a responsible person can prove that a release of petroleum was caused
solely by any one or a combination of an act of God, an act of war, or an
act or omission of a third party without regard to whether any such act or
omission was or was not negligent, a responsible person, notwithstanding
any other provision of the revised Code or common law of this state, is
strictly liable to the state for any costs incurred for any corrective or
enforcement action undertaken by the fire marshal under section 3737.882
of the Revised Code and for any costs incurred for any enforcement action
undertaken by the attorney general under this section or section 3737.882
of the Revised Code with respect to a release of petroleum.
The attorney
general, upon the request of the fire marshal, shall bring a civil action
to recover those costs in the court of common pleas of the county in which
the corrective or enforcement action was undertaken.
(B) If a
responsible person alleges that a release of petroleum was caused solely
by an act or omission of a third party or was caused solely by such an act
or omission in combination with an act of God or an act of war, the
responsible person shall pay to the state the cost of any corrective or
enforcement action undertaken by the fire marshal under section 3737.882
of the Revised Code and any enforcement action undertaken by the attorney
general under this section or section 3737.882 of the Revised Code with
respect to the release and is entitled by subrogation to all rights of the
state to recover those costs from the third party under division (C) of
this section. The attorney general, upon the request of the fire marshal,
shall bring a civil action to recover payment from the responsible party
for those costs in the court of common pleas of the county in which the
corrective or enforcement action was undertaken.
(C) If the
responsible person proves that a release of petroleum was caused solely by
an act or omission of a third party or by such an act or omission in
combination with an act of God or an act of war, the third party,
notwithstanding any other provision of the Revised Code or common law of
this state, is strictly liable to the state for any costs incurred for any
corrective or enforcement action undertaken by the fire marshal under
section 3737.882 of the Revised Code and for any enforcement action
undertaken by the attorney general under this section or section 3737.882
of the Revised Code with respect to the release. The attorney general,
upon the request of the fire marshal or any person entitled by subrogation
to the rights of the state under division (B) of this section, may bring a
civil action to recover those costs in the court of common pleas of the
county in which the corrective or enforcement action was undertaken.
(D) No
indemnification, hold harmless, or similar agreement or conveyance shall
be effective to transfer from the responsible person, or from any other
person who may be liable under division (C) of this section, to another
person the liability imposed by this section. Nothing in this division
bars either of the following:
(1)
Any agreement to insure, hold harmless, or indemnify a party to such an
agreement for any liability under this section;
(2)
A cause of action that any person has or would have against any other
person by reason of subrogation or otherwise.
E)
Nothing in this section limits the duty of a responsible person under
section 3737.882 of the Revised Code and rules adopted under it to notify
the fire marshal and to take action with respect to a release of
petroleum.
(F) Nothing
in this section limits the right of the federal government to recover from
the responsible person any federal money expended for any corrective or
enforcement action as a result of a release of petroleum.
Sec. 3737.90.
(A) There is
hereby created the petroleum underground storage tank release compensation
board consisting of the treasurer of state and the directors of commerce
and environmental protection as members ex officio, or their designees,
and nine members to be appointed by the governor with the advice and
consent of the senate. No more than five of the appointed members shall be
affiliated with the same political party. Of the appointed members, one
shall represent the interests of petroleum refiners, one shall represent
the interests of petroleum marketers, one shall represent the interests of
retail petroleum dealers, one shall represent the interests of local
governments, one shall have experience in casualty
and fire or
pollution liability insurance, two shall represent the interests of
businesses that own petroleum underground storage tanks and are not
primarily engaged in the sale of petroleum, and two shall be professional
engineers registered under Chapter 4733. of the Revised Code with
experience in geology or environmental engineering who shall represent the
interests of the public and shall not be associated with the petroleum
industry.
Of the initial
appointments to the board, three shall be for a term ending July 11, 1990,
three shall be for a term ending July 11, 1991 and three shall be for a
term ending July 11, 1992. Thereafter, terms of office shall be for
three years, with each term ending on the same day of the same month as
did the term that it succeeds. Each member shall hold office from the date
of his appointment until the end of the term for which he was appointed.
Members may be reappointed. Vacancies shall be filled in the manner
provided for original appointments. Any member appointed to fill a vacancy
occurring prior to the expiration date of the term for which his
predecessor was appointed shall hold office as a member for the remainder
of that term. A member shall continue in office subsequent to the
expiration date of his term until his successor takes office or until a
period of sixty days has elapsed, whichever occurs first. Appointed
members of the board shall be compensated on a per diem basis in
accordance with division (J) of section 124.15 of the Revised Code for
each day of actual attendance at meetings of the board. Members shall
receive their actual and necessary expenses incurred in the performance of
their duties as members of the board.
The petroleum
underground storage tank release compensation board is a body both
corporate and politic in this state, and the carrying out of its purposes
and the exercise by it of the powers conferred by sections 3737.90 to
3737.98 of the Revised Code shall be held to be, and are hereby determined
to be, essential governmental functions and public purposes of the state.
Each appointed
member of the board shall give a surety bond to the state in the penal sum
of not less than twenty‑five thousand dollars as determined by the board.
The chairman of the board shall give a bond in the penal sum of not less
than fifty thousand dollars as determined by the board. Each surety bond
shall be conditioned upon the faithful performance of the duties of the
office, be executed by a surety company authorized to transact business in
this state, be approved by the governor, and be filed in the office of the
secretary of state. The surety bonds shall be given at such time as is
established by the board, provided that they shall be given prior to the
issuance of any revenue bonds by the board under sections 3737.90 to
3737.948 of the Revised Code.
The
board shall meet at least quarterly and shall hold such additional
meetings as are necessary to implement and administer sections 3737.90 to
3737.98 of the Revised Code. Additional meetings may be called in
accordance with rules adopted under this section. The board shall annually
select from among its members a chairman and a vice‑chairman.
A majority of the
members of the board constitutes a quorum for the transaction of any
business of the board.
(B) The board
may:
(1)
In accordance with Chapter 119. of the Revised Code, adopt, amend, and
rescind rules establishing procedures for calling special meetings of
the board;
(2) In accordance with Chapter 119. of the Revised Code, adopt,
amend, and rescind such other rules as are necessary or appropriate to
implement and administer sections 3737.90 to 3737.98 of the Revised Code,
including, without limitation, rules for the administration of the
petroleum underground storage tank linked deposit program established
under sections 3737.95 to 3737.98 of the Revised Code; rules establishing
priorities for the payment of claims under section 3737.92 of the Revised
Code on the petroleum underground storage tank financial assurance fund
created in section 3737.91 of the Revised Code based upon a consideration
of the date that a claim is originally filed and the threat posed to human
health and the environment by the release to which the claim applies; and
rules providing for the payment of any such claims in installments, when
appropriate. The rules adopted under division (B)(2) of this section shall
be consistent with section 9003 of the "Resource Conservation and Recovery
Act of 1976," 98 Stat. 3279, 42 U.S.C.A. 6991b, as amended, and
regulations adopted under it;
(3)
Employ and fix the compensation of the director of the petroleum
underground storage tank financial assurance fund and such other
personnel as are necessary to implement and administer sections 3737.90
to 3737.98 of the Revised Code and rules adopted under them. The
board may designate positions in the unclassified civil service for
which it may employ persons who shall be eligible for membership in the
public employees retirement system under Chapter 145. of the Revised
Code and who shall not be subject to Chapter 4117. of the Revised Code.
(4)
Enter into contracts or agreements for the purposes of sections 3737.90
to 3737.98 of the Revised Code, including, without limitation, a
contract for administration of the petroleum underground storage tank
financial assurance fund by an agent;
(5)
Sue or be sued in its own name in actions arising out of any act or
omission in connection with its business or affairs under sections
3737.90 to 3737.98 of the Revised Code;
(6)
Issue revenue bonds payable solely from revenues as provided in sections
3737.94 to 3737.948 of the Revised Code for the purpose of funding the
petroleum underground storage tank financial assurance fund to preserve
jobs and employment opportunities in the state and to control water
pollution and ensure the viability of ground water in the state by
reimbursements to responsible persons for improving property damaged by
releases of petroleum;
(7)
Establish by rule the maximum percentage of the petroleum underground
storage tank financial assurance fund that may be used to make petroleum
underground storage tank linked deposits under sections 3737.95 to
3737.98 of the Revised Code.
(C) Section
9.86 of the Revised Code applies to the petroleum underground storage tank
release compensation board and to any officer or employee of the board, as
"officer" and "employee" are defined in section 109.36 of the Revised
Code.
(D) The
board, in the conduct of its functions and duties, is not subject to the
regulation of the superintendent of insurance under Title XXXIX of the
Revised Code nor any rules of the department of insurance adopted
thereunder.
Sec. 3737.91.
(A) There is
hereby created the petroleum underground storage tank financial assurance
fund, which shall be in the custody of the treasurer of state, but is not
a part of the state treasury. The fund shall consist of moneys from the
following sources:
(1)
All fees collected under divisions (B) and (F) of this section and all
supplemental fees collected under division (C) of this section;
(2)
Interest earned on moneys in the fund;
(3)
Appropriations to the fund from the general revenue fund;
(4)
The proceeds of revenue bonds issued under sections 3737.90 to 3737.948 of
the Revised Code, provided that upon resolution of the petroleum
underground storage tank release compensation board created in section
3737.90 of the Revised Code, all or part of those proceeds may be
deposited into a separate account of the fund. Chapters 131. and 135. of
the Revised Code do not apply to the establishment, deposit, investment,
application, and safeguard of any such account and moneys in any such
account.
(B) For the
purposes of paying the costs of implementing and administering this
section and sections 3737.90 and 3737.92 of the Revised Code and rules
adopted under them; payment or reimbursement of corrective action costs
under section 3737.92 of the Revised Code; compensating third parties for
bodily injury or property damage under that section; and payment of
principal and interest on revenue bonds issued under sections 3737.90 to
3737.948 of the Revised Code to raise capital for the fund, there is
hereby assessed an annual petroleum underground storage tank financial
assurance fee on 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 by rules adopted by the fire marshal under division (B) of
section 3737.882 of the Revised Code. The fee assessed by this division
shall be paid to the board by a responsible person for each tank that is
subject to the fee. The fee shall be paid not later than the first day of
July of each year, except that in 1989 the fee shall be paid by either the
first day of September or ninety days after July 11, 1989, whichever is
later. The fee is in addition to any fee established by the fire marshal
under section 3737.88 of the Revised Code.
The
amount of the annual fee due in 1989 and 1990 is one hundred fifty dollars
per tank per year. In 1991 and subsequent years the board shall establish
the amount of the annual fee in accordance with this division. Not later
than the first day of April of 1991 and each subsequent year, the board,
in consultation with the administrative agent of the fund with whom the
board has entered into a contract under division (B)(3) of section 3737.90
of the Revised Code, if any, shall determine the amount of the annual fee
to be assessed in that year and shall adopt rules in accordance with
Chapter 119. of the Revised Code to establish the fee at that amount. The
fee shall be established at an amount calculated to maintain the continued
financial soundness of the fund, provided that if the unobligated balance
of the fund exceeds forty-five million dollars on the date that an annual
determination is made, 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. Not later than
the first day of May of 1991 and each subsequent year, the board shall
notify each responsible person by certified mail of the amount of the
annual fee per tank due in that year. As used in this paragraph,
"proceedings" has the same meaning as in section 133.01 of the Revised
Code.
If a
responsible person is both the owner and operator of a tank, the
responsible person shall pay any annual fee assessed under this division
in compliance with this division and the rules adopted thereunder. If the
owner of the tank and the operator of the tank are not the same person,
any annual fee assessed under this division in compliance with this
division and the rules adopted thereunder shall be paid by one of the
responsible persons; however, all such responsible persons are liable for
noncompliance with this division.
(C) As
necessary to maintain the financial soundness of the fund, the board, by
rules adopted in accordance with Chapter 119. of the Revised Code, may at
any time assess a supplemental petroleum underground storage tank
financial assurance fee on tanks subject to the fee assessed under
division (B) or
(F) of this section in any fiscal year in which the board
finds that the unobligated balance in the fund is less than fifteen
million dollars. The board, in consultation with the fund's administrative
agent, if any, shall establish the amount of the supplemental fee at an
amount that will ensure an unobligated balance in the fund of at least
fifteen million dollars at the end of the fiscal year in which the
supplemental fee is assessed. Not less than thirty days before the date on
which payment of the supplemental fee is due under the board's rules, the
board shall notify each responsible person by certified mail of the amount
of the supplemental fee and the date on which payment of the supplemental
fee to the board is due.
If a
responsible person is both the owner and operator of a tank, the
responsible person shall pay any supplemental fee assessed under this
division in compliance with this division and the rules adopted thereunder.
If the owner of the tank and the operator of the tank are not the same
person, any supplemental fee assessed under this division in compliance
with this division and the rules adopted thereunder shall be paid by one
of the responsible persons; however, all such responsible persons are
liable for noncompliance with this division.
(D)
(1) The board shall issue a certificate of coverage to any
responsible person who has complied with all of the following:
(a) Paid the fee assessed
under division (B) or (F) of this section;
(b) Demonstrated to the
board financial responsibility in compliance with the rules adopted by
the fire marshal under division (B) of section 3737.882 of the Revised
Code for the deductible amount established under division (E) of this
section or, when appropriate, the reduced deductible amount
established under division (F) of this section. If the responsible
person utilizes self‑insurance as a financial responsibility
mechanism, the responsible person shall provide the board with an
affidavit in which the responsible party certifies that all
documentation submitted to the board is true and accurate;
(c)
Certified to the board that for each petroleum underground storage
tank system for which a certificate of coverage is sought, the
responsible person is in compliance with applicable rules for
petroleum underground storage tank systems that have been adopted by
the fire marshal under section 3737.88 of the Revised Code.
The certificate of coverage shall state the amount of coverage to
which the responsible person is entitled from the fund pursuant to
division (D)(3) of this section and the time period for which the
certificate provides that coverage. An issued certificate of coverage
is subject to the condition that the holder timely pay any
supplemental fee assessed under division (C) of this section during
the time that the certificate is in effect.
(2)
The board shall not issue a certificate of coverage to any responsible
person who fails to comply with divisions (D)(1)(a), (b) and (c) of this
section.
(3)
The maximum disbursement from the fund for any single release of
petroleum is the difference between the deductible amount established
under division (E) of this section or, when appropriate, the reduced
deductible amount established under division (F) of this section and one
million dollars. The maximum disbursement from the fund during any
fiscal year on behalf of any responsible person shall not exceed in the
aggregate one million dollars less the deductible amount if the
responsible person owns or operates not more than one hundred tanks
comprising underground petroleum storage tanks or underground petroleum
storage tank systems, shall not exceed in the aggregate two million
dollars less the deductible amount if the responsible person owns or
operates not more than two hundred such tanks, shall not exceed in the
aggregate three million dollars less the deductible amount if the
responsible person owns or operates not more than three hundred such
tanks, and shall not exceed in the aggregate four million dollars less
the deductible amount if the responsible person owns or operates more
than three hundred such tanks. The maximum disbursement from the fund
for any single release or for any fiscal year under this division does
not in any manner limit the liability of a responsible person for a
release of petroleum.
(E) (1) Except as otherwise provided in division (F) of this section,
no responsible person is eligible to receive moneys from the fund under
section 3737.92 of the Revised Code until the responsible person
demonstrates to the board financial responsibility for the first fifty
thousand dollars of the cost for corrective action for, and compensating
third parties for bodily injury and property damage caused by, accidental
releases of petroleum from an underground storage tank owned or operated
by the responsible party. The fifty thousand dollar amount is the
deductible amount for the purposes of this section and section 3737.92 of
the Revised Code.
(2)
The board, in consultation with the fund's administrative agent, if any,
may, by rules adopted in accordance with Chapter 119. of the Revised
Code, establish for any fiscal year a deductible amount that differs
from fifty thousand dollars. The deductible amount established by the
board shall be such an amount as to maintain the financial soundness of
the fund. Any action of the board to establish a differing deductible
amount or to alter a deductible amount previously established by it
shall be taken concurrently with the establishment under division (B) of
this section of the annual fee due on the first day of the fiscal year
in which the deductible amount will apply. If the deductible amount
established under this division differs from that in effect at the time
of the board's action, the board shall notify each responsible person of
the change by certified mail not later than the first day of May
preceding the effective date of the change.
(F)
(1) Any responsible person owning, or owning or operating, a total
of six or fewer petroleum underground storage tanks may elect in calendar
years 1989 and 1990 to pay twice the amount of the per tank annual fee for
each tank assessed under division (B) of this section in order to reduce
the amount of the deductible established in division (E) of this section
to the total amount of ten thousand dollars. The election shall be
available only at the time of the payment of the annual fee and any
supplemental fee. The election shall not be retroactively applied.
(2)
Any responsible person owning, or owning or operating, a total of six or
fewer petroleum underground storage tanks may elect in calendar year
1991 and in each subsequent year to pay an additional fee at an amount
established by the board in addition to the per tank annual fee assessed
under division (B) of this section in order to reduce the deductible
amount established under division (E) of this section. In calendar year
1991 and in each subsequent year, the board shall establish the amount
of the additional fee and the reduced deductible amount. In determining
the amount of the additional fee and the reduced deductible amount, the
board shall take into consideration the effect of the additional claims
paid under section 3737.92 of the Revised Code to responsible persons
making an election under division (F)(2) of this section and balance
that consideration with such factors as the availability of liability
insurance, the difficulty of proving financial responsibility pursuant
to the rules adopted by the fire marshal under division (B) of section
3737.882 of the Revised Code, and the hardship created on small owners
and operators of petroleum underground storage tanks by an increase in
either the additional fee or the reduced deductible amount.
(3)
Any responsible person owning, or owning or operating, a total of six or
fewer petroleum underground storage tanks who elects to pay the
additional fee under divisions (F)(1) and (2) of this section shall pay
any per tank supplemental fee assessed under division (C) of this
section.
(G) If the
director of the fund determines that a responsible person has failed to
comply with division (B), (C), or (F) of this section, the director of the
fund shall notify each responsible person for the petroleum underground
storage tank of the noncompliance. If, within thirty days after the
notification, the responsible person fails to pay the applicable fee or
any fee previously assessed upon the responsible person under this
section, the director of the fund shall issue an order requiring the
responsible person to pay all of the fees the responsible person owes to
the fund and an additional late payment fee in the amount of one thousand
dollars to the fund.
If a responsible
person fails to comply with any order of the director of the fund within
thirty days after the issuance of the order, the director shall notify the
fire marshal of that noncompliance. Upon the request of the director of
the fund, the attorney general may bring a civil action for appropriate
relief, including a temporary restraining order or preliminary or
permanent injunction, in the court of common pleas of the county in which
the petroleum underground storage tank that is the subject of the order is
located. The court shall issue an injunction upon a demonstration that a
failure to comply with the director's order has occurred or is occurring.
Any orders issued
by the director of the fund under this division may be appealed by the
responsible person under division (F) of section 3737.92 of the Revised
Code. For the purpose of an appeal of any order of the director of the
fund, "determination" as used in that division includes any order of the
director of the fund. The filing of a notice of appeal under this division
does not operate as a stay of any order of the director of the fund.
Sec. 3737.92.
(A) The
petroleum underground storage tank release compensation board created in
section 3737.90 of the Revised Code shall use moneys in the petroleum
underground storage tank financial assurance fund established in section
3737.91 of the Revised Code exclusively for the following purposes:
(1)
Payment of the expenses of administering the fund;
(2)
Payment of the administrative expenses of the board;
(3)
Payment to or reimbursement of responsible persons for the necessary
cost of corrective action for and compensating third parties for bodily
injury and property damage caused by accidental releases of petroleum in
accordance with this section, provided that proceeds from the issuance
of revenue bonds under sections 3737.90 to 3737.948 of the Revised Code
may only be used for the payment to or reimbursement of responsible
persons for the necessary costs of corrective action for improving
property damaged by accidental releases of petroleum in accordance with
this section;
(4)
Deposit into any funds provided for in a resolution or resolutions of
the board in connection with any revenue bonds issued under sections
3737.90 to 3737.948 of the Revised Code;
(5)
Placement of petroleum underground storage tank linked deposits under
sections 3737.95 to 3737.98 of the Revised Code.
(B) A
responsible person seeking to obtain from the fund payment of or
reimbursement for corrective action costs for an accidental release of
petroleum shall submit a claim to the board in accordance with and
containing the information required by rules adopted by the board in
accordance with Chapter 119. of the Revised Code. Before authorizing any
disbursement from the fund to pay all or any portion of a claim submitted
under this division, the director of the fund shall first determine that
the claim meets all of the following criteria:
(1)
The responsible person is eligible under division (D) of this section to
receive payment of or reimbursement for the corrective action costs from
the fund;
(2)
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;
(3)
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.
(C) A
responsible person seeking to obtain from the fund payment of or
reimbursement for compensation paid or to be paid to third parties for
bodily injury or property damage caused by an accidental release of
petroleum shall submit a claim to the board in accordance with and
containing the information required by rules adopted by the board in
accordance with Chapter 119. of the Revised Code. Before authorizing any
disbursement from the fund to pay all or any portion of a claim submitted
under this division, the director of the fund shall first determine that
the claim meets both of the following criteria:
(1)
The responsible person who submitted the claim is eligible under
division (D) of this section to receive payment of or reimbursement for
the third‑party compensation from the fund;
(2)
There is a legally enforceable judgment against the responsible person
for bodily injury or property damage to one or more third parties
resulting from the release in the amount stated in the claim, or, if
there is a settlement with a third party as a result of the release, the
amount of the settlement stated in the claim is reasonable.
(D) A
responsible person is not eligible to receive payment or reimbursement
from the fund under division (B) or (C) of this section unless all of the
following conditions are met:
(1)
At the time that the release was first suspected or confirmed, a
responsible person possessed a valid certificate of coverage issued by
the board under division (D) of section 3737.91 of the Revised Code for
the petroleum underground storage tank system from which the release
occurred;
(2)
One of the following applies:
(a) 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 when the occurrence of the release was first suspected or
confirmed;
(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.
(3)
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;
(4)
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
has occurred;
(5)
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;
(6) 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 when the occurrence of the release was first suspected or
confirmed.
(E) The
director of the fund may make a determination to approve or disapprove a
claim and to authorize a disbursement from the fund for payment of an
approved claim administratively without a hearing. If the director of the
fund makes a determination regarding a claim that is inconsistent with a
recommendation or determination of the fire marshal for purposes of
division (B)(2) or (3) or (D)(2), (3), or (5) of this section, the
director shall detail those inconsistencies in a written finding of fact
before authorizing any disbursement from the fund for payment of the
claim. Upon making a determination of a claim under this section, the
director of the fund shall provide written notice of the determination and
a copy of any written finding of fact accompanying the determination to
the responsible person who submitted the claim and to the fire marshal.
(F) If the
responsible person who submitted a claim under this section or the fire
marshal objects to the determination of the claim made by the director of
the fund and files an objection to the determination with the board within
thirty days after the mailing of the notification of the determination and
finding of fact, if any, the board shall appoint a referee to conduct an
adjudication hearing on the determination. The adjudication hearing shall
be conducted in accordance with section 119.09 of the Revised Code. For
the purposes of adjudication hearings on determinations of the director of
the fund, the term "agency" as used in that section includes the board.
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