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CONTENTS
O.A.C. Section Subject
3737-1-01
Notice of administrative rules hearing.
3737-1-02
Public meeting.
3737-1-03
Definitions.
3737-1-04
Annual petroleum underground storage tank financial assurance fee,
certification of compliance and financial responsibility.
3737-1-04.1
Coverage reinstatement.
3737-1-05
Supplemental petroleum underground storage tank financial assurance fee.
3737-1-06
The deductible and reduced deductible.
3737-1-07
Establishing fund eligibility for corrective action costs.
3737-1-08
Disbursement of financial assurance fund.
3737-1-09
Limitations of fund coverage.
3737-1-09.1
Inclusions of fund coverage.
3737-1-10
Financial audits.
3737-1-11
Technical audits.
3737-1-12
Application for reimbursement.
3737-1-12.1
Mandatory and voluntary pre-approval of corrective
action costs.
3737-1-13
Reimbursement application review.
3737-1-15
Modifying the deductible or the reduced deductible.
3737-1-16
Third party claims.
3737-1-17
Petroleum underground storage tank linked deposit program.
3737-1-18
Certificate of coverage.
3737-1-19
Establishing fund eligibility for third party claims.
3737-1-20
Fees for materials and services.
3737-1-21
Obligated account.
3737-1-22
Subrogation.
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 electronic mail address, mailing
address or fax number, and, if appropriate, pays the cost of copying and
mailing.
Effective: 11/30/2009
R.C. 119.032 review dates: 08/07/2009 and 08/03/2014
Promulgated Under: 119.03
Statutory Authority: 119.03, 3737.90
Rule Amplifies: 119.03, 3737.90
Prior Effective Dates: 11/14/89 (Emer.), 02/12/90, 07/01/03, 06/20/05
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 web site at
www.petroboard.com
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
electronic mailing 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 web site at
www.petroboard.com
and at its office.
Effective: 11/30/2009
R.C. 119.032 review dates: 08/07/2009 and 08/03/2014
Promulgated Under: 119.03
Statutory Authority: 119.03, 3737.90
Rule Amplifies: 119.03, 3737.90
Prior Effective Dates: 11/14/89 (Emer.), 02/12/90
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 3737-1-22 of the
Administrative Code.
(1) “Applicant” means the responsible person for an underground
storage tank system who submits a board-prepared application 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) “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.
(6) “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.
(7) “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.
(8) “Director” means the director of the petroleum underground
storage tank financial assurance fund.
(9) “Fee” means:
(a) The annual petroleum underground storage tank financial assurance
fee;
(b) The supplemental petroleum underground storage tank financial
assurance fee; or
(c) Any other fee as established by the board.
(10) “Financial audit” means an examination of the books, vouchers,
and records of a responsible person by the director to determine
compliance with this chapter.
(11) “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.
(12) “Fire marshal” means the fire marshal of the state of Ohio.
(13) “Fiscal year” means the time period July first through June
thirtieth.
(14) “Imminent hazard” means the appearance of threatened and
impending risk or peril.
(15) “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.
(16) “Obligated account” means monies segregated and maintained, on a
year by year basis, for reimbursing necessary corrective action costs.
(17) “Obligations” mean undertakings by the board to reimburse or pay
a responsible person or the designee of the responsible person.
(18) “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.
(19) “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.
(20) “Program task” means one of the tasks defined by rule 3737-1-12
of the Administrative Code.
(21) “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.
(22) “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.
(23) “Release” means a “release” as defined in rule 1301:7-9-13 of the
Administrative Code.
(24) “Responsible person” means a “responsible person” as defined in
division (N) of section
3737.87 of the Revised Code.
(25) “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.
(26) “Suspected release” means a “suspected release” as defined in
rule 1301:7-9-13 of the Administrative Code.
(27) “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.
(28) “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.
(29) “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, 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.
(30) “Year” means twelve consecutive months.
Effective: 11/30/2009
R.C. 119.032 review dates: 08/07/2009 and 08/03/2014
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.92
Prior Effective Dates: 08/01/90, 05/04/92, 04/26/93, 07/01/94 (Emer),
09/30/94, 11/29/94(Emer), 02/28/95, 04/01/97, 09/18/99, 07/01/03,
04/01/05, 04/01/07, 04/01/08
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 of the fund 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 of the fund 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 of the fund 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 of the fund 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) (1) 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, 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.
Payment of the annual fee and any past fees owed, certification of
compliance with the fire marshal’s rules, and demonstration of financial
responsibility 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. Payment of the annual fee and any past fees owed,
certification of compliance with the fire marshal’s rules, and
demonstration of financial responsibility 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,
certification of compliance with the fire marshal’s rules, and
demonstration of financial responsibility. The failure 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; or
(d) Pay any fee assessed pursuant to this chapter.
(2) Where ownership of an underground storage tank has been
transferred and notice has been given to the director in accordance with
paragraph (F) of this rule, a new certificate of coverage shall be issued
to the new underground storage tank owner for the fiscal year in which the
transfer occurred provided that the new owner pays a transfer fee of five
hundred dollars per facility, pays all outstanding fees, if any,
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 director shall accept the annual petroleum underground
storage tank financial assurance fee required by this rule but shall not
issue a certificate of coverage when the criteria of this rule for
issuance are not satisfied.
(4) 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 provide the fire marshal
with a copy of any determination issued pursuant to this rule.
Where the requirements of this rule are not satisfied at the time of a
petroleum release, the certificate 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 has been revoked.
(F) In the event that a newly installed underground storage tank is
placed in service, the responsible person shall immediately notify the
director. 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, intentional or unintentional, 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,
required by this paragraph of this rule, the director shall notify the
responsible person of the assessment of any applicable fees. No
certificate of coverage will be issued until the responsible person has
notified the director of any newly installed or any existing underground
storage tank for which a certificate of coverage is not currently in
place, has paid the required annual fees for the new or existing tank, all
outstanding fees, if any, 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.
In the event of a transfer of an underground storage tank for which a
certificate of coverage is currently in place, the transferee shall give
notice to the director within thirty days of the date of the transfer. If
the new responsible person notifies the director within thirty days and
complies with the requirements set forth in this rule, the certificate of
coverage shall be effective as of the date of the transfer of the
underground storage tank. If the new responsible person fails to notify
the director of the transfer within thirty days or, if no certificate of
coverage for the tank is in effect at the time of the transfer, a
certificate of coverage will not be effective until the new responsible
person notifies the director of the transfer, pays the transfer fee, and
all outstanding fees, if any, 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.
The responsible person shall tender the fees assessed no later than thirty
days from the date of notification. If the responsible person fails to
submit the annual fees within thirty days after the notification was
mailed, the director of the fund shall notify the responsible person of
the non-payment. If the responsible person fails to submit the annual fee
within thirty days after the notification of non-payment was mailed, the
director of the fund 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 inform the director, as is required by this rule, the director
is not required to notify the responsible person of fees owed.
(G) 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.
(H) The amount of the annual fee is six hundred dollars per tank.
(I) 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: 11/30/2009
R.C. 119.032 review dates: 08/07/2009 and 08/03/2014
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.91, 3737.92
Prior Effective Dates: 08/01/90, 04/25/91, 05/04/92, 4/26/93, 07/01/94,
07/01/95, 07/01/96, 04/01/97, 04/01/99, 9/18/99, 04/01/00, 04/01/01,
07/01/03, 04/01/04, 04/01/05, 06/30/06, 04/01/08
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, there has been no suspected
release or release required to be reported to the fire marshal 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 (E)(4) 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 suspected releases or releases required to be
reported to the fire marshal 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: 11/30/2009
R.C. 119.032 review dates: 08/07/2009 and 08/03/2014
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.91
Prior Effective Dates: 07/01/95, 09/18/99, 04/01/07, 04/01/08
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
R.C. 119.032 review dates: 08/07/2009 and 08/03/2014
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.91
Prior Effective Dates: 08/01/90, 07/01/94, 07/01/96, 09/18/99, 04/01/05,
04/01/07
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
R.C. 119.032 review dates: 08/07/2009 and 08/03/2014
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.91
Prior Effective Dates: 08/01/90, 04/25/91, 05/04/92, 04/26/93, 07/01/94,
04/01/06
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 suspected release or release,
whichever is first, was required to be reported to the fire marshal;
(2) At the time of the suspected release or release, whichever is
first, 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)(1) 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 the suspected release or release, whichever is
first, was required to be reported to the fire marshal, 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 reporting
requirements set forth in rule 1301:7-9-13 of the Administrative Code; and
(10) At the time of the suspected release or release, whichever is
first, 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 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 division (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: 11/30/2009
RC 119.032 Review Dates: 08/07/2009 and 08/03/2014
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.92
Prior Effective Dates: 08/01/90, 05/04/92, 04/26/93, 07/01/94, 07/01/95,
11/24/96, 09/18/99, 04/01/05, 04/01/08
3737-1-08 Disbursement of the financial assurance fund.
(A) Once eligibility of the fund has been determined in accordance
with rules 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) Tank owners who refuse to provide the requested information
shall be denied hardship status. Any documentation received by the board
for a hardship application may be a public record except if 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 one year 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 one-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 one year period from the date the application was
approved.
Effective: 11/30/2009
R.C. 119.032 review dates: 08/072009 and 08/03/2014
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.92
Prior Effective Dates: 08/01/90, 05/04/92, 07/01/96, 09/18/99, 04/01/05,
04/01/06, 04/01/08
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 suspected release or release
for which 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 solely 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 solely 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 or recoverable from any
other party;
(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 actions 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 for corrective action greater than fifty percent 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) and (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; or
(15) Costs for corrective action and/or third-party claims determined
to be non-reimbursable pursuant to paragraph (E) of 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: 11/30/2009
R.C. 119.032 review dates: 08/07/2009 and 08/03/2014
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.92
Prior Effective Dates: 08/01/90, 05/04/92, 07/01/94, 09/18/99, 07/01/03,
04/01/05, 04/01/07, 04/01/08
3737-1-09.1 Inclusions of fund coverage.
(A) The following costs shall be specifically reimbursable:
(1) Primary contractor or primary consultant markup on reimbursable
subcontractor charges but only to the extent that the amount of primary
contractor or primary consultant markup is not greater than ten per cent
of the subcontractor’s actual costs. However, no markup shall be paid for
any of the following:
(a) Costs of disposal, disposal facilities, and/or treatment
facilities;
(b) Markup charged by the subcontractor(s);
(c) Primary contractor or primary consultant internal expenses
including labor, supplies, per diem travel expenses, and intra-company
billings;
(d) Charges for supplies;
(e) Charges for materials; or
(f) Charges for equipment.
(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.
(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: 11/30/2009
R.C. 119.032 review dates: 08/07/2009 and 08/03/2014
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.92
Prior Effective Dates: 07/01/94 (Emer.), 09/30/94
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
R.C. 119.032 review dates: 08/07/2009 and 08/03/2014
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.92
Prior Effective Dates: 08/01/90, 11/24/96
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
R.C. 119.032 review dates: 08/07/2009 and 08/03/2014
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.92
Prior Effective Dates: 08/01/90, 11/24/96, 09/18/99
3737-1-12 Application for reimbursement.
(A) Responsible persons shall file an application 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 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.
(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 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 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, 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 paragraph (G) 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 tier 1 source investigation program task completion date
shall be the date the tier 1 delineation notification or the tier one
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 an interim response action associated
with a tier evaluation shall be the date the interim response action
report is required to be submitted to the fire marshal. An interim
response action 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 remedial action plan preparation
associated with a tier evaluation shall be the date the remedial action
plan is required to be submitted to the fire marshal. Remedial action plan
preparation 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 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.
(E) 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) or (C) of this rule.
(F) 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.
(G) If the fire marshal issues a deficiency letter or requests
additional information, the costs for additional work required to address
the deficiency or fire marshal’s requests for additional information 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
letter, within one year from the date of the letter. This rule will be
applied to all the program tasks performed under all versions of rule
1301:7-9-13 of the Administrative Code.
(H) 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.
(I) 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.
(J) 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
(E)(2), (F), or (G) of this rule, the responsible person shall apply for
reimbursement as required by those paragraphs regardless of the total
amount sought; and
(2) For the operation and maintenance and/or the monitoring program
tasks, 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: 11/30/2009
R.C. 119.032 review dates: 08/07/2009 and 08/03/2014
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.92
Prior Effective Dates: 08/01/90, 05/04/92, 07/01/94, 09/18/99, 07/01/03,
04/01/05, 04/01/06, 04/01/07,
04/01/08
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, 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) 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) and (A)(6) 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
on a form prescribed by the director 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: 11/30/2009
R.C. 119.032 review dates: 08/07/2009 and 08/03/2014
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.92
Prior Effective dates: 07/01/94, 09/18/99, 07/01/03, 04/01/05, 04/01/08
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
R.C. 119.032 review dates: 08/07/2009 and 08/03/2014
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.92
Prior Effective Dates: 08/01/90, 05/04/92, 07/01/96, 09/18/99, 07/01/03,
04/01/05, 04/01/07
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 insuring 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 the suspected release or release,
whichever is first, for which application for reimbursement is being made.
Effective: 11/30/2009
119.032 Review Date: 08/07/2009 and 08/03/2014
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.92
Prior Effective Dates: 08/01/90, 05/04/92, 04/01/05
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 rule3737-1-19 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 that
has been or will be paid from the responsible person’s insurance or
another 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 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: 11/30/2009
R.C. 119.032 review dates: 08/07/2009 and 08/03/2014
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.92
Prior Effective Dates: 08/01/90, 07/01/94, 07/01/03
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 less 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: 11/30/2009
R.C. 119.032 review dates: 08/07/2009 and 08/03/2014
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.96, 3737.97
Prior Effective Dates: 08/01/90, 05/04/92, 07/01/96, 04/01/97
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) Effective with the 1992 fiscal year there will be one master
certificate of coverage issued for each owner or operator making payment
to the fund and a facility certificate of coverage 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: 11/30/2009
R.C. 119.032 review dates: 08/07/2009 and 08/03/2014
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.91
Prior Effective Dates: 08/01/90, 05/04/92, 07/01/94
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 suspected release or release, whichever is
first, 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)(1) 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 the suspected release or release, whichever is
first, was required to be reported to the fire marshal, 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 reporting
requirements set forth in rule 1301:7-9-13 of the Administrative Code;
(8) At the time of the suspected release or release, whichever is
first, 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 division (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: 11/30/2009
R.C. 119.032 review dates: 08/07/2009 and 08/03/2014
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.92
Prior Effective Dates: 08/01/90, 05/04/92, 04/26/93, 07/01/94, 07/01/96,
09/18/99, 07/01/03, 04/01/05
3737-1-20 Fees for materials and services.
The board may approve reasonable fees to be charged to persons requesting
materials or services from the board.
Effective: 11/30/2009
R.C. 119.032 review dates: 08/07/2009 and 08/03/2014
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.90
Prior Effective Dates: 05/04/92
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, nor the debt service account
or accounts, nor the debt service reserve account or accounts, nor in
certificates of deposit purchased for linked deposits, 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: 11/30/2009
R.C. 119.032 review dates: 08/07/2009 and 08/03/2014
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.91, 3737.92
Prior Effective Dates: 04/01/97, 09/18/99, 04/01/07
3737-1-22 Subrogation.
(A) A responsible person who has any settlement discussions with, or
mediation or litigation against another party(s) for causing and/or
contributing to the accidental release of petroleum from an assured
underground storage tank system for which an eligibility application has
been submitted to or approved by the board, shall:
(1) Notify the board of the identity of all other parties against
whom the responsible person has or may have a right of recovery;
(2)
Provide reasonable advance notification to the board of any and all
settlement meetings;
(3) 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;
(4) 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 institute and pursue legal proceedings
against the other party(s) independently or in conjunction with the
responsible person;
(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 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; and
(2) Not enter into any settlement agreement without prior notice to
and authorization by the board.
(C) The responsible person shall cooperate with the board in
enforcement of its subrogation rights, including but not limited to,
providing documents, testimony, and access to experts relating to the
third party(s) causing or contributing to the accidental release of
petroleum.
(D) As used in this rule subrogation means the board’s rights to
recover costs of corrective actions and/or third-party claims that the
board has paid or will pay to a responsible person or a third party from
any other party(s) and/or the other party(s) insurer; and/or a responsible
person’s insurer.
(E) If the responsible person fails to comply with this rule, the
board shall reimburse corrective action costs and/or third-party claim
costs that are the lesser of:
(1) Fifty percent of eligible corrective action and/or third-party
claim costs, as determined by the board; or
(2) The total of eligible corrective action and/or third-party claim
costs, as determined by the board, minus the amount of the deductible and
minus the amount paid by the other party to the responsible person.
(F) Where the board has withheld reimbursement for the costs of
corrective action and/or third-party claims pursuant to paragraph (D) of
this rule, and the board initiates a claim to recover 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.
(G) If the responsible person has received any monies from any other
party(s) or the responsible person’s insurance for reimbursement of
corrective action costs and/or third-party claims, and the board has
reimbursed the responsible person for all eligible corrective action costs
and/or third-party claims, the responsible person shall indemnify the
board the total cost paid by the board to the responsible person for
eligible corrective action and/or third-party claims costs unless the
responsible person and the board agree to a lesser amount in a written
settlement agreement.
Effective: 11/30/2009
R.C. 119.032 review dates:
08/07/2009 and 08/03/2014
Promulgated Under: 119.03
Statutory Authority: 3737.90
Rule Amplifies: 3737.92
Prior Effective Dates: 07/01/03, 04/01/07, 04/01/08 |
