Ohio Admin. Code 3745-300-01 - Definitions - voluntary action program
(A)
(1)
"Acceptance limit" is the numerical range in which an
analyte shall be quantitated in a proficiency testing sample.
(2)
"Activity and use
limitations" are one or more restrictions or obligations created under sections
5301.80 to
5301.92 of the Revised Code with
respect to real property. Activity and use limitations eliminate or mitigate
exposure to a release of hazardous substances or petroleum. Examples of
activity and use limitations include but are not limited to land use
limitations and ground water use restrictions.
(3)
"Actual costs"
are the actual, substantiated direct, indirect, and other costs associated with
a specific voluntary action program activity.
(4)
"Additional
certification" is supplemental certification to perform analyses of specific
analytes or parameter groups, using designated methods, for which the
laboratory is not already certified pursuant to the laboratory's current
certification under rule
3745-300-04
of the Administrative Code.
(5)
"Affected media"
are any environmental media present on or off property that contain
concentrations of COCs.
(6)
"Affected property" is a property, or portion thereof,
for which a variance is being sought under rule
3745-300-12
of the Administrative Code.
(7)
"Affiliated"
means under common ownership or control.
(8)
"Analyte" is a
hazardous substance or petroleum, or a constituent of a hazardous substance or
petroleum.
(9)
"Applicable standards" are standards established in or
pursuant to sections 3746.05,
3746.06, and
3746.07 of the Revised Code, or
rule
3745-300-07,
3745-300-08,
3745-300-09,
3745-300-10,
or
3745-300-11 of the
Administrative Code, as applicable.
(10)
"Audit findings"
means written documentation which indicates the results of an audit conducted
pursuant to rule
3745-300-14 of the
Administrative Code provided to one or more of the following, as
appropriate:
(a)
A person who has performed a voluntary
action.
(b)
The current owner of a property that has been the
subject of a voluntary action.
(c)
A certified
professional.
(d)
A certified laboratory.
(B)
(1)
"Background
levels" are the conditions at a property and areas surrounding a property that
are unaffected by any current or past activities involving treatment, storage,
or disposal of hazardous substances or petroleum. Background levels include
naturally occurring substances.
(2)
"Bioavailability"
is that fraction of a COC that is available for uptake by a receptor upon
exposure to a contaminated medium.
(C)
(1)
"Capture zone" means all unsaturated and saturated
subsurface areas that presently contribute or shall contribute ground water to
a well.
(2)
"Central management entity" is an organization that is
designated as responsible to oversee compliance with applicable standards at a
property that allows for any residential use. A central management entity also
may oversee compliance at a property that allows recreational or commercial
use. A central management entity may consist of one or more domestic business
entities that own or hold an interest in the property. A central management
entity may consist of a condominium unit owner's association for the property,
which is subject to Chapter 5311. of the Revised Code. A central management
entity does not consist of any association formed pursuant to Chapter 5312. of
the Revised Code, or other fee simple owners of the property.
(3)
"Central tendency
value" is a parameter value from a probability distribution of parameter values
which is an estimation of the median of that distribution.
(4)
"Certificate" is
the document issued by the director to an individual laboratory, certified
under rule
3745-300-04
of the Administrative Code, that does either of the following:
(a)
Authorizes the
laboratory to perform analyses in support of a request for a no further action
letter for the specified analytes or parameter groups, and using the methods
listed on the document.
(b)
Acknowledges that the individual is a certified
professional for the purposes of this chapter and Chapter 3746. of the Revised
Code.
(5)
"Certified" or "certification" is the authorization of
either of the following:
(a)
A laboratory to perform analyses in support of a
request for a no further action letter for the specific analytes or parameter
groups and using the methods for which the director has determined the
laboratory meets the requirements provided in rule
3745-300-04
of the Administrative Code.
(b)
An individual to
issue no further action letters under rule
3745-300-05
of the Administrative Code.
(6)
"Certified
laboratory" is a laboratory certified by the director pursuant to rule
3745-300-04
of the Administrative Code.
(7)
"Certified
professional" is an individual certified by the director pursuant to rule
3745-300-05
of the Administrative Code to issue no further action letters under section
3746.11 of the Revised
Code.
(8)
"Chemicals of concern" or "COCs" are specific
constituents of hazardous substances or petroleum which are on or from a
property and are identified during a voluntary action.
(9)
"Chemical-specific intake" is the measure of exposure of a
receptor to the COC and is equivalent to the administered dose. Chemical
specific intake is equal to the mass of a substance in contact with the
exchange boundary of a receptor per unit body mass per unit time, expressed in
units of milligrams per kilogram per day.
(10)
"Chemical
testing method" is a method used for the preparation and analysis of an
environmental sample to quantify for hazardous substances or petroleum, or
constituents of hazardous substances or petroleum.
(11)
"Class C
release" means a release of petroleum occurring or identified from an
underground storage tank system subject to sections
3737.87 to
3737.89 of the Revised Code for
which the responsible person for the release is specifically determined by the
fire marshal not to be a viable person capable of undertaking or completing the
corrective actions required under those sections for the release. Class C
release also includes any release designated as a class C release in accordance
with rules adopted under section
3737.88 of the Revised
Code.
(12)
"Commercial land use" is land use with the potential
for exposure of adult workers and patrons during a business day, and the
potential for low frequency exposures of children who are visitors to
commercial facilities during the business day. Commercial land use has the
potential for exposure of adults to dermal contact with soil, inhalation of
vapors and particles from soil, incidental ingestion of soil, and inhalation of
volatile compounds due to vapor intrusion to indoor air. Examples of commercial
land use include, but are not limited to, the following:
(a)
Shopping
centers.
(b)
Restaurants.
(c)
Retail gasoline
stations.
(d)
Retail establishments.
(e)
Professional
offices.
(f)
Hospitals and clinics.
(g)
Religious
institutions.
(h)
Hotels.
(i)
Motels.
(j)
Warehouses.
(k)
Parking
facilities.
(l)
Agricultural lands and facilities when demonstrated
through a property-specific risk assessment.
(13)
"Commercial land
use with high frequency child exposure" is land use with the potential for
exposure of adult workers and patrons during a business day, and the potential
for high frequency exposures of children who are patrons to commercial
facilities during the business day. Commercial land use has the potential for
exposure of adults and children to dermal contact with soil, inhalation of
vapors and particles from soil, incidental ingestion of soil, and inhalation of
volatile compounds due to vapor intrusion to indoor air. Examples of commercial
land use with high frequency child exposure include, but are not limited to,
schools and child daycare facilities.
(14)
"Complete
exposure pathway" is a current or reasonably anticipated exposure pathway
determined to be complete after the identification of current and reasonably
anticipated property use and receptor populations and as a result of a pathway
completeness determination.
(15)
"Compliance
audit" is the selection of any no further action letter submitted to the
director with a request for a covenant not to sue for an audit for any purpose
or combination of purposes described in paragraph (A) of rule
3745-300-14 of the
Administrative Code. The audit may be conducted in accordance with paragraph
(F) of rule
3745-300-14 of the
Administrative Code or by any other means selected by the
director.
(16)
"Conflict of interest" is any circumstances which would
affect the laboratory's ability to objectively analyze samples in connection
with a voluntary action, including circumstances similar to those in paragraph
(E)(3) of rule
3745-300-05
of the Administrative Code for certified professionals.
(17)
"Consolidated
saturated zone" is a saturated zone in bedrock.
(18)
"Construction
activities" include invasive activities that result in potential exposure of
adult workers during the business day for a portion of one year. Exposures
during construction activities are of greater intensity and shorter duration
than those for the commercial and industrial land use categories. Construction
activities have potential exposures of adults to dermal contact with soil,
inhalation of vapors and particles from soil, and ingestion of soil. Examples
of construction activities include, but are not limited to, excavation,
grading, bulldozing, tilling, trenching, utility installation or maintenance,
building construction, operation of heavy equipment, and traffic on unpaved
roads on a construction site.
(19)
"Continuing
education unit" is a unit of credit customarily used for professional
development courses. One continuing education unit equals ten hours of actual
instruction in an approved continuing education course.
(20)
"Course" is any
educational activity with a clear purpose and objective which shall maintain,
improve, or expand the skills and knowledge relevant to the investigation,
assessment, or remediation of hazardous substances or
petroleum.
(21)
"Covenant not to sue" is a release from civil liability
that is issued by the director under section
3746.12 of the Revised
Code.
(22)
"Cumulative risk" is the estimate of excess lifetime
cancer risk attributable to the exposure of a receptor or receptor population
to one or more COC in one or more environmental media, or through one or more
routes of exposure.
(D)
(1)
"Determination of sufficient evidence letter" is a
notification from the director, pursuant to section
3746.02 of the Revised Code and
this chapter, that a person or property that is the subject of an enforcement
letter may or may not participate in the voluntary action
program.
(2)
"Diligent inquiry" means conducting a thorough search
of all reasonably available information, and making reasonable efforts to
interview persons with knowledge regarding current and past uses of the
property, waste disposal practices, and environmental compliance
history.
(3)
"Director" is the director of the Ohio environmental
protection agency or the director's designee.
(4)
"Discretionary
audit pool" is any no further action letter submitted to the director with a
request for a covenant not to sue in the preceding calendar year under section
3746.11 of the Revised Code that
was either not included in or was not selected for audit from the random audit
pool.
(5)
"Document" is any record, device, or item, regardless
of physical form or characteristic, including but not limited to, electronic or
hard copy records of reports, studies, data, correspondence, and all other
information.
(6)
"Drinking water source protection area" has the same
definition as in rule
3745-9-01
of the Administrative Code.
(7)
"Drinking water
source protection plan" means the strategies to be implemented by a public
water system to prevent, detect, and respond to water quality contamination in
a drinking water source protection area, as adopted by the owner of the public
water system and endorsed by Ohio EPA as meeting the requirements of the
wellhead protection program and the source water assessment and protection
program.
(E)
(1)
"Enforcement
letter" is a notification, in the form of an invitation to negotiate from the
director, that the director intends to pursue enforcement under Chapter 3704.,
3734., or 6111. of the Revised Code relating to a release or threatened release
of hazardous substances or petroleum.
(2)
"Engineered fill"
is soil or aggregate materials derived from on-property or off-property
locations which has been placed on the property to meet specific engineering
requirements for the construction of buildings, utility lines, roadway
sub-grade, or other structures. Engineered fill includes structural
fill.
(3)
"Engineering control" is any structure, system, or
barrier, which is protective of human health, safety, and the environment, that
effectively and reliably eliminates or mitigates human or important ecological
resource exposure to hazardous substances or petroleum on, underlying, or
emanating from a property.
(4)
"Environmental
covenant" is a servitude that imposes activity and use limitations on property
that is the subject of a no further action letter submitted with a request for
a covenant not to sue under section
3746.11 of the Revised Code. An
environmental covenant meets the requirements in section
5301.82 of the Revised
Code.
(5)
"Environmental media" are soil, sediment, surface
water, and ground water. Environmental media also include naturally occurring
transitional zones between soil, sediment, surface water, or ground water, such
as bedrock, soil gas, and air.
(6)
"Exposure" is
contact of a receptor with a COC that is quantified as the amount of the COC
available for absorption at the exchange boundaries of the organism, such as
the skin, lungs, or gastrointestinal tract.
(7)
"Exposure factor"
is a parameter that defines one term in an equation used to quantify the
exposure of a receptor to a COC by means of one exposure pathway. Exposure
factors may be represented by point values or by a distribution of
values.
(8)
"Exposure factor point value" is a single numeric value
selected from a distribution of numeric values of the exposure factor, selected
on the basis of the value's representativeness of a central tendency or
upper-bound value.
(9)
"Exposure pathway" is a mechanism by which a receptor
is exposed to a COC.
(10)
"Exposure point concentration" is the mass of a COC per
unit quantity of medium which is available for intake by a
receptor.
(11)
"Exposure route" is the manner in which a chemical or
physical agent comes into contact with an organism (for example, ingestion,
inhalation, or dermal contact with soil).
(12)
"Exposure unit"
is a geographic area within which an exposed receptor may reasonably be assumed
to move at random and where contact with environmental media is equally likely
at all sub-areas.
(F)
(1)
"Fixed-base laboratory" is a laboratory at a permanent
location that provides for the analysis of environmental media.
(2)
"Free product" is
a separate liquid hydrocarbon phase that has a measurable thickness of greater
than one one-hundredth of a foot.
(G)
(1)
"Gallons" means U.S. gallons.
(2)
"Generic
direct-contact soil standard" is a generic numerical standard based on a single
chemical exposure that results from ingestion of soil, dermal contact with
soil, and inhalation of volatile and particulate emissions from
soil.
(3)
"Generic numerical standard" is a concentration of a
hazardous substance or petroleum that ensures protection of public health and
safety and the environment for the reasonably anticipated exposures associated
with a residential, commercial, or industrial land use, construction
activities, or potable ground water use. The generic numerical standard is
determined pursuant to rule
3745-300-08
of the Administrative Code.
(4)
"Good moral
character" is such character as enables an individual to comply with the
ethical responsibilities of a certified professional.
(5)
"Ground water" is
water underlying a property in a saturated zone that meets the following
criteria:
(a)
Capable of yielding, within eight hours after purging, a
minimum of one and one-half gallons of water as determined in accordance with
paragraph (F) (2)(b) of rule
3745-300-07
of the Administrative Code.
(b)
The in situ
hydraulic conductivity is greater than 5.0 x 10 -6
centimeters per second as determined in accordance with standards of paragraph
(F)(2) (b) of rule
3745-300-07
of the Administrative Code.
(c)
This definition
applies only to voluntary actions conducted under this chapter and Chapter
3746. of the Revised Code.
(H)
(1)
"Hazard index" is a numerical value that describes the
potential for an adverse non-cancer threshold effect to occur in an individual
as a result of exposure of a receptor or receptor population to one or more COC
in one or more environmental media through one or more routes of exposure over
a specific time exposure period. This numerical value is expressed as the
unitless sum of the hazard quotient values for each COC, each environmental
medium, and each route of exposure.
(2)
"Hazardous
substance" includes any of the following:
(a)
Any substance
identified or listed in rules adopted under division (B)(1)(c) of section
3750.02 of the Revised
Code.
(b)
Any product registered as a pesticide under section
921.02 of the Revised Code when
the product is used in a manner inconsistent with the product's required
labeling.
(c)
Any product formerly registered as a pesticide under
that section for which the registration was suspended or canceled under section
921.05 of the Revised
Code.
(d)
Any mixture of a radioactive material with a substance
described in paragraphs (H)(2)(a) to (H)(2)(c) of this rule.
(3)
"Hazard quotient" is the value which quantifies
non-carcinogenic risk for one chemical for one receptor population over a
specified exposure period. The hazard quotient is equal to the ratio of a
chemical-specific intake to the reference dose.
(4)
"Historical
records" means sources of information which assist in identifying current or
past uses or occupants of a property, including but not limited to, aerial
photographs, fire insurance maps, property tax files, recorded land title
records, U.S. geological survey 7.5 minute topographic maps, local street
directories, building department records, zoning or land use records that
identify past uses or occupants of the property from the property's first
commercial or industrial use through the present use, and records in the files
of an owner or operator of the property.
(I)
(1)
"Identified area" is a location at a property where a
release of hazardous substances or petroleum has or may have
occurred.
(2)
"Imminent hazard" is any condition which poses an
immediate risk of harm to public health, safety, or the environment. Examples
of imminent hazards include, but are not limited to, the following:
(a)
Threats of
explosion.
(b)
Discharges of hazardous substances or petroleum to
surface water.
(c)
Discharges to ground water of hazardous substances or
petroleum that threatens existing drinking water supplies.
(d)
Releases of
hazardous substances or petroleum into the air which could result in an
exposure at or to a concentration of chemicals that is immediately dangerous to
life or health.
(e)
Migration or releases of hazardous substances or
petroleum which would threaten to immediately harm public health, safety, or
the environment.
(3)
"Important
ecological resource" or "IER" is any specific ecological community, population,
or individual organism protected by federal, state, or local laws and
regulations, or ecological resources that provide important natural or economic
resource functions and values. Important ecological resources include, but are
not limited to, the following:
(a)
Any surface water of the state, as that term is used in
Chapter 3745-1 of the Administrative Code.
(b)
Any wetland
regulated under federal law and Chapter 6111. of the Revised
Code.
(c)
Any dedicated natural area or preserve.
(d)
Any
federally-listed or state-listed threatened or endangered species and the
associated habitat.
(e)
Any state of Ohio special interest or declining species
and the associated habitat.
(f)
Any state park or
national park.
(g)
Any federally designated wilderness
area.
(h)
Any national lakeshore recreational
area.
(i)
Any national preserve.
(j)
Any state
wildlife refuge or national wildlife refuge.
(k)
Any federal,
state, local, or private land designated for the protection of natural
ecosystems.
(l)
Any federally-designated or state-designated scenic or
wild river.
(m)
Any federal or state land designated for wildlife or
game management.
(n)
Wildlife populations and the associated important
nesting areas and food resources, taking into consideration land use and the
quality and extent of habitat on and in the vicinity of the
property.
(4)
"Incremental sampling" is a technique used to obtain a
reproducible estimate of the exposure point concentration. An incremental
sample is comprised of randomly collected sub-samples combined to form the
sample.
(5)
"Individual" is any person (as "person" is defined in
section 1.59 of the Revised Code and in
this rule), but not a corporation, business trust, estate, trust, partnership,
or association. Individual is also not this state, any political subdivision of
this state, any other body of this state or of a political subdivision of this
state, and the United States and any agency or instrumentality
thereof.
(6)
"Indirect costs" are all costs other than direct costs
which may be attributed to a fee source including, but not limited to,
administrative overhead, training of personnel, reporting to the legislature,
rule development, guidance development, program marketing, database management,
and word processing. Indirect costs are determined by multiplying direct costs
by the indirect rate.
(7)
"Indirect rate" is the rate or per centage by which
direct costs are multiplied to determine the indirect costs for a given fee or
activity.
(8)
"Industrial fill" is non-soil material that is derived
from industrial or manufacturing operations and that has been placed on a
property for the purpose of disposal, grading, or construction.
(9)
"Industrial land
use" is land use with the potential for exposure of adult workers and patrons
during a business day, and the potential for low frequency exposures of
children who are visitors to commercial or industrial facilities during the
business day. Industrial land use has the potential for exposure of adults to
dermal contact with soil, inhalation of vapors and particles from soil,
incidental ingestion of soil, and inhalation of volatile compounds due to vapor
intrusion to indoor air. Industrial land use is considered appropriate for an
alternate cumulative cancer risk goal through a property-specific risk
assessment in accordance with paragraph (B)(3)(b) of rule
3745-300-09
of the Administrative Code. Examples of industrial land use include, but are
not limited to, manufacturing facilities such as metal-working shops, plating
shops, blast furnaces, coke plants, oil refineries, brick factories, chemical
plants, and plastics plants; assembly plants; non-public airport areas; lumber
yards; power plants; limited access highways; railroad switching yards; and
marine port facilities.
(10)
"Initial certification" is any first certification
issued to either of the following:
(a)
A laboratory to perform analyses of specific analytes
or parameter groups, using designated methods, under rule
3745-300-04
of the Administrative Code.
(b)
An individual who
is certified by the director to issue no further action letters under rule
3745-300-05
of the Administrative Code.
(11)
"Institutional
control" is a restriction that is recorded in the same manner as a deed which
limits access to or use of the property such that exposure to hazardous
substances or petroleum are effectively and reliably eliminated or mitigated.
Activity and use limitations are considered institutional controls when
required pursuant to sections
5301.08 to
5301.92 of the Revised Code.
Examples of institutional controls include land and water use
restrictions.
(12)
"Interim measures" are remedial activities undertaken
to protect public health and safety and the environment until the property
complies with applicable standards through a permanent remedy.
(13)
"Investigatory
auditing activities" means activities conducted prior to the issuance of audit
findings, including, but not limited to, document review and analysis, field
screening or sampling activities, and laboratory analysis.
(J)
[Reserved.]
(K)
"Key property
personnel" means an individual or individuals identified by the owner or
operator of a property, and confirmed by the volunteer, as having reliable
knowledge of the uses or physical characteristics of the
property.
(L)
(1)
"Laboratory" is a
fixed-base laboratory or mobile laboratory that provides for the analysis of
environmental media.
(2)
"Laboratory audit" is an evaluation of a laboratory to
determine the laboratory's qualifications for certification under rule
3745-300-04
of Administrative Code, or to determine compliance of a laboratory that is
certified with such laboratory's obligations under rule
3745-300-04
of the Administrative Code. Laboratory audits may consist of a review of
documents or other information submitted to Ohio EPA, or an on-site visit to
the laboratory to review the laboratory's operations and to evaluate the
facility and personnel.
(M)
(1)
"Method" is the analytical procedure used to identify
and calculate the concentration of an analyte or parameter group and is often
designated by a method number from a compendium of standardized test methods
(e.g., hazardous waste test methods included in U.S. EPA's "Test Methods for
Evaluating Solid Waste, Physical/Chemical Methods," U.S. EPA publication
SW-846). If the method has been revised, the method includes the method number
plus the revision suffix (e.g., "A, B, C," etc.). Therefore, proper citation of
the method shall include the method number plus the revision suffix, if
any.
(2)
"Method detection limit study" is a procedure used by a
laboratory to determine the laboratory's ability to reliably and accurately
report to a specific concentration for an analyte or parameter group using the
method for which the laboratory is applying for certification.
(3)
"Mobile
laboratory" is a laboratory that is not fixed at a permanent location. Mobile
laboratory data provide real-time analysis of environmental media at a location
on or near a property.
(N)
(1)
"Native fill" is soil material derived from the
property and transferred from one area of the property and placed in another
area in such a manner that the original soil structure and physical properties
may be altered from the initial pre-excavation conditions, but the chemical and
physical properties remain consistent with other undisturbed native soils at
the property.
(2)
"Natural attenuation" is the in situ biotic and abiotic
processes through which passive remediation occurs. Natural attenuation may
include the following:
(a)
Non-destructive processes, including but not limited
to, the following physical processes:
(i)
Adsorption.
(ii)
Absorption.
(iii)
Advection.
(iv)
Dispersion.
(v)
Diffusion.
(vi)
Dilution from
recharge.
(vii)
Volatilization.
(b)
Destructive
processes, including but not limited to, the following chemical
processes:
(i)
Aerobic biodegradation.
(ii)
Hypoxic
biodegradation.
(iii)
Anaerobic biodegradation.
(iv)
Chemical
degradation, including abiotic oxidation processes, hydrolysis, and other
reactions.
(3)
"Ninety-five per
cent upper confidence limit" is the upper limit of an interval within a
frequency distribution curve in which the observed mean of a data set occurs
ninety-five per cent of the time.
(4)
"No further
action letter" is a document issued by a certified professional under affidavit
upon determination by the person undertaking a voluntary action that either
there is no information indicating there has been a release of hazardous
substances or petroleum at or upon the property, or there has been a release of
hazardous substances or petroleum at or upon the property and applicable
standards were not exceeded or have been or shall be achieved in accordance
with Chapter 3746. of the Revised Code and rules adopted
thereunder.
(5)
"No further action letter submitted to the director"
means no further action letters submitted to the director for either of the
following:
(a)
A
covenant not to sue has been requested from the director under division (D) of
section 122.654, sections
3746.11 and
3746.12 of the Revised Code and
paragraph (H)(1) of rule
3745-300-13
of the Administrative Code.
(b)
A covenant not to
sue has not been requested from the director, but Ohio EPA is obligated to
review the no further action letter under division (C) of section
122.654 of the Revised
Code.
(O)
(1)
"Ohio EPA" means the Ohio environmental protection
agency.
(2)
"Operation and maintenance plan" is a written plan
prepared in accordance with paragraph (F) of rule
3745-300-11 of the
Administrative Code. An operation and maintenance plan describes the remedy or
remedial activities planned to demonstrate that the property meets and
maintains compliance with applicable standards. As applicable, an operation and
maintenance plan also describes the remedial activities planned so that the
property achieves compliance with applicable standards within five years, or
such other time frame as agreed upon by the director in an operation and
maintenance agreement.
(3)
"Other person responsible for operation and maintenance
plan and agreement implementation" is the person responsible for implementation
of the operation and maintenance plan and agreement through transfer of the
operation and maintenance agreement, by assignment or in conjunction with
acquisition of title to the property.
(4)
"Owner or
operator" includes both of the following:
(a)
Any person owning
or holding a legal, equitable, or possessory interest in or having
responsibility for the daily activities on a property.
(b)
In the case of
property title or control of which was conveyed due to bankruptcy, foreclosure,
tax delinquency, abandonment, or similar means to this state or a political
subdivision of this state, any person who owned, operated, or otherwise
controlled activities occurring on the property before the
conveyance.
(P)
(1)
"Parameter group" is a group of analytes similar in
chemical characteristics quantitated using a specific method and
technology.
(2)
"Pathway deferral" is a demonstration made in
accordance with rule
3745-300-11 of the
Administrative Code that access to an off-property area known to contain or
suspected to contain a complete exposure pathway has been refused following
informed requests to access in order to complete assessment or remedy in
accordance with this chapter. Compliance with applicable standards associated
with the pathway are deferred until access to the off-property area is attained
and the remedy is implemented and verified in accordance with this
chapter.
(3)
"Pathway exclusion" is a demonstration made in
accordance with rule
3745-300-11 of the
Administrative Code and approved by the director that excludes the releases of
hazardous substances or petroleum associated with a potentially complete or
complete exposure pathway to an off-property area from the release of liability
provided by the covenant not to sue, and from any demonstration of compliance
with applicable standards that is otherwise required for issuance of the no
further action letter.
(4)
"Peer-reviewed" is a document or study that meets the
following criteria:
(a)
The document or study have been published in a
recognized scientific journal or publication.
(b)
The document or
study is generally accepted within the scientific community as being accurate
and reliable.
(c)
The results in the document or study have been
independently reproduced, or the methods described in the document or study
have been proven to produce consistent results.
(5)
"Performance-based method" is a method designed to
quantitate for an analyte or parameter group that is not listed in a method
published or endorsed by U.S. EPA or Ohio EPA.
(6)
"Persistent,
bioaccumulative and toxic (PBT) chemicals" are those chemicals which do not
readily degrade via biogeochemical processes, remain in the environment for
long periods of time (as measured by a half-life or t 1/2 of greater than sixty
days), are highly toxic and bioaccumulate in animal tissue (as indicated by an
octanol water coefficient or kow , of greater than 4.5 and a
bioaccumulation factor or BCF of greater than one thousand).
(7)
"Person" is
defined in section 1.59 of the Revised Code and
also includes this state, any political subdivision of this state, any other
body of this state or of a political subdivision of this state, and the United
States and any agency or instrumentality thereof.
(8)
"Petroleum" is
oil or petroleum of any kind and in any form, including, without limitation,
crude oil or any fraction thereof, petroleum, gasoline, kerosene, fuel oil, oil
sludge, oil refuse, used oil, substances or additives utilized in the refining
or blending of crude petroleum or petroleum stock, natural gas, natural gas
liquids, liquefied natural gas, synthetic gas usable for fuel, and mixtures of
natural gas and synthetic gas.
(9)
"Phase I property
assessment" is all the activities required to evaluate a property in accordance
with rule
3745-300-06
of the Administrative Code, Chapter 3746. of the Revised Code, and the
standards provided in division (B) of section
3746.07 of the Revised
Code.
(10)
"Phase II property assessment" is all the activities
required to evaluate a property in accordance with rule
3745-300-07
of the Administrative Code, Chapter 3746. of the Revised Code, and the
standards provided in division (C) of section
3746.07 of the Revised
Code.
(11)
"Point of compliance" is any location on or off the
property to which applicable standards shall be met and
maintained.
(12)
"Practically reviewable" means information provided in
a manner and in a form that, upon examination, yields information relevant to
the property. Records that cannot feasibly be retrieved by reference to the
location of the property, the geographic area in which the property is located,
or the name of the owner or operator of the property are not practically
reviewable.
(13)
"Professional development hour unit" is a unit hour for
tracking continuing education, as required by paragraph (C) of rule
3745-300-05
of the Administrative Code.
(14)
"Professional
services" is any conduct in connection with a voluntary action or in rendering
a voluntary action opinion.
(15)
"Proficiency" is
a demonstration of competence in projects similar in type and scope to
voluntary actions.
(16)
"Proficiency testing provider" is any entity that is
accredited to provide proficiency testing samples and to evaluate proficiency
testing results by a proficiency testing oversight body or proficiency testing
provider accreditor designated by the national environmental laboratory
accreditation conference institute.
(17)
"Proficiency
testing result" is the result derived by the laboratory from the analysis of a
proficiency testing sample.
(18)
"Proficiency
testing sample" is a material or matrix spiked with a known concentration of
one or more specific analytes representative of the analyte or parameter group.
The proficiency testing sample is used to evaluate a laboratory's ability to
identify and quantitate an analyte or parameter group using a specific method
or technology.
(19)
"Property" is any parcel of real property, or portion
thereof, and any improvements thereto, the limits of which have been described
in writing by the owner of record or a legally appointed representative of the
owner and that is or has been the subject of a voluntary action under this
chapter.
(20)
"Property-specific risk assessment" is an analysis
conducted in accordance with rule
3745-300-09
of the Administrative Code. This process includes the following steps:
(a)
Selection of
COCs.
(b)
Exposure assessment.
(c)
Toxicity
assessment.
(d)
Risk characterization, including
uncertainty.
(21)
"Publicly available" means the source of the
information allows access to the information by anyone upon
request.
(Q)
"Quality assurance program plan" or "QAPP" is a written
document that details the data collection, storage, analysis, and quality
assurance or quality control procedures used by a laboratory to assure that all
data generated are scientifically valid, defensible, and of known precision and
accuracy.
(R)
(1)
"Radioactive
material" is a substance that spontaneously emits ionizing
radiation.
(2)
"Random audit pool" is the pool of all of the no
further action letters submitted to the director with a request for a covenant
not to sue in the preceding calendar year under section
3746.11 of the Revised Code.
Properties with a remedy or a risk assessment that have been issued and
submitted after completion of the process and procedures, as defined by Ohio
EPA, to comply with the "2007 Memorandum of Agreement," between Ohio EPA and
U.S. EPA region 5, are excluded from the random audit pool.
(3)
"Reasonably
available" is any of the following situations:
(a)
Information is
publicly available or known of and available to the volunteer or owner or
operator of the property.
(b)
Information is provided or made available by the source
within ninety days after receipt of a written request.
(c)
Information is
practically reviewable.
(4)
"Receptor" or
"receptor population" means humans or important ecological resources that are
reasonably anticipated to come in contact with COCs, based on the distribution
of the COCs on the property and the activity patterns of those humans or
important ecological resources on or off the property.
(5)
"Recognized
educational institution" is an institution which is accredited by an
appropriate regional board or association of institutions of higher
education.
(6)
"Recreational activities" are highly variable exposure
scenarios that require determination of applicable standards through a
property-specific risk assessment conducted pursuant to rule
3745-300-09
of the Administrative Code. Recreational activities may have the potential for
exposure of adults and children to dermal contact with soil or sediment,
inhalation of vapors and particles from soil, incidental ingestion of soil or
sediment, dermal contact with surface water, incidental ingestion of surface
water, ingestion of fish, and inhalation of volatile compounds due to vapor
intrusion to indoor air.
(7)
"Reference concentration" is an estimate of a
continuous inhalation exposure to the human population, including sensitive
subgroups, that is likely to be without an appreciable risk of deleterious
effects during a lifetime.
(8)
"Reference dose"
is a value representative of a daily exposure level for the human population,
including sensitive subpopulations, that is not likely to cause an adverse
non-cancer health effect during a specified period of time. For example, an
acute, short-term, subchronic or chronic exposure period.
(9)
"Release" is any
past or current spilling, leak, pump, pour, emission, empty, discharge,
injection, escape, leach, migration, dump, or disposal of any hazardous
substance or petroleum into the environment, including, without limitation, the
abandonment or discard of barrels, containers, or any other closed receptacle
that contains any hazardous substance, petroleum, or pollutant or contaminant.
"Release" does not include any of the following:
(a)
Exposure of
individuals to hazardous substances or petroleum in the workplace with respect
to which those individuals may assert a claim against the individuals' employer
and that is regulated under the Occupational Health and Safety Act and
regulations adopted thereunder, or under Chapter 4167. of the Revised Code and
rules adopted thereunder.
(b)
Emissions from the engine exhaust of a motor vehicle,
rolling stock, aircraft, vessel, or pipeline pumping station
engine.
(c)
Source material, by-product material, or special
nuclear material from a nuclear incident, as "source material," "by-product
material," "special nuclear material," and "nuclear incident" are defined in
the Atomic Energy Act, if the release is subject to financial protection
requirements under section 170 of that act, unless any such material is mixed
with a hazardous substance or petroleum.
(d)
Any federally
"permitted release" as defined in section 101(10) of the Comprehensive
Environmental Response, Compensation, and Liability Act.
(e)
The normal
application of a fertilizer material that is intended to improve the quality or
quantity of plant growth.
(10)
"Relevant
professional experience" is experience obtained through conducting or
supervising voluntary actions or projects similar in type and scope to
voluntary actions. Such experience shall indicate that the applicant is
competent to conduct voluntary actions or to render voluntary action opinions.
Relevant professional experience does not include experience that involves
non-scientific or non-technical activities associated with assessment or
remediation projects such as contract management, budget control, or other
similar management activities.
(11)
"Remedy" or
"remedial activities" are actions that are taken at a property to treat,
remove, transport for treatment or disposal, dispose of, contain, or control
hazardous substances or petroleum, which are protective of public health and
safety and the environment, and which are consistent with a permanent remedy,
including, without limitation, excavation, treatment, off-property disposal,
the use of engineering or institutional controls or activity and use
limitations, the issuance and implementation of a consolidated standards permit
under section 3746.15 of the Revised Code, and
the entering into and implementation of an operation and maintenance agreement
pursuant to section 3746.12 of the Revised
Code.
(12)
"Renewal certification" is either of the
following:
(a)
The renewal of a laboratory's current certification under
rule
3745-300-04
of the Administrative Code.
(b)
The renewal of a
certified professional's certification under rule
3745-300-05
of the Administrative Code.
(13)
"Residential
land use" is land use with the potential for a high frequency of exposure of
adults and children to dermal contact with soil, inhalation of vapors and
particles from soil, incidental ingestion of soil, and inhalation of volatile
compounds due to vapor intrusion to indoor air. Examples of residential land
use include, but are not limited to, residences, condominiums, dormitory
residences, nursing homes, elder care and other long-term health care
facilities, and correctional facilities.
(14)
"Restricted
residential land use" is residential land use that requires the implementation
of institutional controls, engineering controls, any other remedial activities
to comply with applicable standards for residential land use. Restricted
residential land use is considered protective for, and may be applied to,
residential land uses appropriate for a point of compliance less than the
minimum depth of ten feet that is required by rule
3745-300-07
of the Administrative Code, vapor intrusion remedies, or ground water use
restrictions. Restricted residential land use requires a central management
entity to implement or oversee the institutional controls, engineering
controls, and any other remedial activities used to comply with applicable
standards pursuant to rule
3745-300-11 of the
Administrative Code.
(15)
"Risk mitigation measures" are the health and safety
precautions and other such remedial activities that mitigate or eliminate human
exposure to the COCs at the property as a result of excavation or construction
activities. Risk mitigation measures reduce potential risks and provide
protection to persons who perform excavation or construction activities or to
other persons who would be exposed to COCs in environmental media as a result
of the excavation or construction activities.
(S)
(1)
"Sediment" is unconsolidated inorganic and organic
material that has precipitated and deposited below surface waters. Sediment
includes the following:
(a)
Materials below the water surface under bankfull
conditions in streams, lakes, and ditches.
(b)
Materials below
normal pool elevation for reservoirs.
(c)
Materials within
the federal and state jurisdictional boundaries of wetlands.
(d)
Materials below
maximum capacity for ponds and lagoons.
(e)
Materials found
below the ordinary high water mark of lake Erie, as defined by "International
Great Lakes Datum."
(2)
"Sole source
aquifer" is an aquifer designated as a sole source aquifer under section
1424(e) of the Safe Drinking Water Act.
(3)
"Source area" is
any abandoned or discarded barrels, containers, or any other closed receptacle
in environmental media, or any affected media, originally impacted by a release
from which contamination is acting, has acted, or has the potential to act as a
point of origin for the migration of the release throughout the
environment.
(4)
"Split sample" is a material or medium that consists of
two or more individual samples collected at the same time and location and that
are analyzed independently, with each sample analyzed at a different
laboratory.
(5)
"Standard operating procedures" or "SOPs" are a
laboratory's written procedures to prepare samples and perform measurements of
analytes or parameter groups.
(6)
"Suspension
period" is the period of time listed on the final findings and orders issued by
the director to a certified laboratory, in which the certified laboratory is
suspended for an analyte or parameter group and corresponding
method.
(T)
(1)
"Technology" is
the laboratory instrumentation used to quantify an analyte or parameter group.
Examples include, but are not limited to, gas chromatography, mass
spectrometry, and inductively coupled plasma.
(2)
"Tier I audit" is
a review and analysis of documents that pertain to a no further action letter
held or produced by a certified professional, a volunteer, the current owner of
the property, or a certified laboratory, as appropriate, and a site walkover of
the property, in order to determine compliance with applicable standards, this
chapter, or Chapter 3746. of the Revised Code.
(3)
"Tier II audit"
is a physical inspection and investigation of a property upon which a voluntary
action was conducted in order to determine compliance with applicable
standards, this chapter, or Chapter 3746. of the Revised Code, including
sampling and analysis of soils, surface water, air, sediments, or ground
water.
(U)
(1)
"Unconsolidated
saturated zone" is any saturated zone that is not in bedrock, including, but
not limited to, saturated zones in soil, gravel, sand, silt, clay, or fill
materials.
(2)
"Unrestricted potable use standard" means ground water
standards based on the assumption that ground water shall be used as a source
of water for drinking, cooking, showering, and bathing. Unrestricted potable
use standards include generic unrestricted potable use standards based on
maximum contaminant levels or other established regulatory criteria in
accordance with rule
3745-300-08
of the Administrative Code, generic risk-derived unrestricted potable use
standards developed in accordance with rule
3745-300-08
of the Administrative Code, or property-specific risk-derived unrestricted
potable use standards developed in accordance with rule
3745-300-09
of the Administrative Code.
(3)
"Unrestricted
residential land use" is considered protective for, and may be applied to, any
land use, without further restriction.
(4)
"Upper-bound
value" is a parameter value from a distribution of such values which is within
the highest decile (ten per cent) of that distribution.
(5)
"Urban setting
designation" is an area where the potable use pathway is determined to be
incomplete under paragraph (C) of rule
3745-300-10
of the Administrative Code. An urban setting designation does not eliminate the
volunteer's responsibility to address non-potable pathways or to protect ground
water that meets unrestricted potable use standards.
(6)
"U.S. EPA" means
the United States environmental protection agency.
(V)
(1)
"Voluntary action" is a series of measures that may be
undertaken to identify and address contamination and potential sources of
contamination of properties by hazardous substances or petroleum and to
establish that the property complies with applicable standards.
(a)
"Voluntary
action" may include, without limitation, any of the following:
(i)
A phase I
property assessment.
(ii)
A phase II property assessment.
(iii)
A sampling
plan.
(iv)
A remedial plan.
(v)
Remedial
activities.
(vi)
Such other actions the volunteer considers to be
necessary or appropriate to address the contamination, followed by the issuance
of a no further action letter that indicates the property complies with
applicable standards.
(b)
To demonstrate
that applicable standards have been met, the person undertaking such measures
shall establish either of the following:
(i)
That there is no
information indicating that there has been a release of hazardous substances or
petroleum at or upon the property.
(ii)
That there has
been a release of hazardous substances or petroleum at or upon the property and
that applicable standards were not exceeded or have been or shall be achieved
in accordance with this chapter and Chapter 3746. of the Revised
Code.
(2)
"Voluntary action
opinion" is any of the following:
(a)
A no further action letter issued in accordance with
this chapter and Chapter 3746. of the Revised Code.
(b)
A written notice
pursuant to division (B) of section
3746.11 of the Revised Code that
the certified professional is not able to issue a no further action letter for
a property because the property does not comply with applicable
standards.
(c)
An application for a variance pursuant to rule
3745-300-12
of the Administrative Code and section
3746.09 of the Revised
Code.
(d)
A request for an urban setting designation pursuant to
paragraph (C) of rule
3745-300-10
of the Administrative Code.
(e)
A summary report
prepared pursuant to division (C) of section
3746.11 of the Revised
Code.
(f)
A request for a case-by-case determination pursuant to
paragraph (B) of rule
3745-300-12
of the Administrative Code.
(g)
A request for a
pathway exclusion pursuant to paragraph (D) of rule
3745-300-11 of the
Administrative Code.
(h)
Verification of completion of remedial activities and
determination of compliance with applicable standards pursuant to paragraph (E)
of rule
3745-300-11 of the
Administrative Code.
(i)
A statement in support of a remedy revision notice that
demonstrates the property complies with applicable standards through
implementation of the remedial activities pursuant to paragraph (H)(2) of rule
3745-300-11 of the
Administrative Code.
(j)
Any other circumstance in which a certified
professional determines compliance with applicable standards in a document
submitted to Ohio EPA on behalf of a volunteer pursuant to this
chapter.
(3)
"Voluntary action program" means the program created
under this chapter and Chapter 3746. of the Revised Code to provide a way to
voluntarily investigate and clean up possible environmental
contamination.
(4)
"Volunteer" is a person who conducts a voluntary action
and any authorized representative of the person who conducts the voluntary
action. Volunteer does not include a "responsible person," as defined in
section 3737.87 of the Revised Code, for
a class C release on the property that is the subject of a voluntary
action.
Replaces: 3745-300-01 (A)
Notes
Promulgated Under: 119.03
Statutory Authority: 3746.04
Rule Amplifies: 3746.04
Prior Effective Dates: 12/29/1995, 12/16/1996, 03/04/2002, 04/19/2006, 03/01/2009, 04/23/2012, 08/01/2014, 05/26/2016
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