Ohio Admin. Code 3745-300-13 - No further action letter content and procedures
(A)
No further action letter timing. For the purposes of
this chapter and Chapter 3746. of the Revised Code, a no further action letter
may be issued pursuant to this rule by a certified professional for a property
under one or a combination of the following circumstances:
(1)
After completion
of a phase I property assessment conducted in accordance with rule
3745-300-06
of the Administrative Code, a certified professional determines that there is
no information that establishes any reason to believe a release of hazardous
substances or petroleum has or may have occurred at or upon a
property.
(2)
After completion of a phase I property assessment
conducted in accordance with rule
3745-300-06
of the Administrative Code, a certified professional determines a release of
hazardous substances or petroleum occurred on the property, and the release is
demonstrated in writing to be within a de minimis or previously addressed area
in accordance with paragraph (E)(2) of rule
3745-300-06
of the Administrative Code.
(3)
After completion
of a phase II property assessment conducted in accordance with rule
3745-300-07
of the Administrative Code, a certified professional determines the
concentrations of chemicals of concern (COCs) pertaining to the property do not
exceed the applicable standards.
(4)
After completion
of a phase II property assessment conducted in accordance with rule
3745-300-07
of the Administrative Code, a certified professional determines the
concentrations of COCs pertaining to the property exceed the applicable
standards but one or both of the following situations occurs:
(a)
Those applicable
standards are achieved through remedial activities.
(b)
Those applicable
standards shall be achieved in accordance with one of the following
mechanisms:
(i)
An operation and maintenance plan, if required under rule
3745-300-11 of the
Administrative Code.
(ii)
A consolidated standards permit issued under section
3746.15 of the Revised Code and
any rules adopted thereunder.
(B)
Volunteer
provides supporting information to certified professional. In order to support
a volunteer's request to a certified professional for a no further action
letter to be issued by the certified professional, a volunteer, and other
persons who perform work to support the issuance of the no further action
letter, shall submit to a certified professional, by affidavit, all relevant
investigatory and remedial information that pertains to the property. The
information shall include, but is not limited to, the following:
(1)
Information that
demonstrates that there is no contamination by hazardous substances or
petroleum of soil, sediments, surface water, or ground water released on or
from the property that exceeds applicable standards. Each demonstration shall
be based upon the findings of a phase I property assessment in accordance with
rule
3745-300-06
of the Administrative Code or a phase II property assessment in accordance with
rule
3745-300-07
of the Administrative Code.
(2)
Information that
demonstrates compliance with rule
3745-300-02
of the Administrative Code regarding the eligibility of the property to
participate in the voluntary action program.
(3)
If remedial
activities were conducted in connection with a voluntary action, data that
demonstrates that any or all remedies meet or shall meet applicable standards
in accordance with paragraph (E) of rule
3745-300-11 of the
Administrative Code.
(4)
For any no further action letter that is not to be
submitted to Ohio EPA for a covenant not to sue, the institutional controls
needed to restrict the use of the property to comply with applicable standards
include a demonstration that all institutional controls for the property are
established. The demonstration shall consist of a deed or declaration of the
institutional controls that are recorded in the office of the county recorder
of the county in which the property is located, or are entered as a memorial in
the appropriate register for "registered land" as defined in section
5309.01 of the Revised Code, in
compliance with section
3746.14 of the Revised Code.
This requirement shall not apply to any no further action letter submitted to
Ohio EPA with a request for a covenant not to sue, as provided by paragraphs
(B)(5) and (E)(8)(e) of this rule.
(5)
For any no
further action letter that is to be submitted to Ohio EPA for a covenant not to
sue, the activity and use limitations needed to comply with applicable
standards include a demonstration that the activity and use limitations were
developed in accordance with this chapter and are in a proposed environmental
covenant that complies with section
5301.82 of the Revised Code.
This requirement applies when the volunteer intends to request from the
director a covenant not to sue, or when the volunteer does not intend to
request a covenant not to sue but Ohio EPA is obligated to review the no
further action letter pursuant to division (C) of section
122.654 of the Revised
Code.
(6)
An operation and maintenance plan and a proposed
operation and maintenance agreement, for the remedies that require such
documents in accordance with rule
3745-300-11 of the
Administrative Code.
(7)
The affidavits required by paragraphs (O) and (P) of
this rule.
(C)
Prohibition on withholding information. A person, with
the purpose to deceive a certified professional, certified laboratory, or a
contractor thereof, or Ohio EPA or a contractor thereof, may not withhold,
conceal, or destroy any data, information, records, or documents relating to a
voluntary action.
(D)
Certified professional review of information. After
receipt of the information that is required to be submitted by a volunteer
under paragraph (B) of this rule, a certified professional shall do the
following:
(1)
Review the information to determine whether or not the
property complies with the applicable standards.
(2)
Ensure that the
information is reviewed by persons with experience and competence in areas
other than that of the certified professional, as necessary for the issuance of
the no further action letter.
(3)
Determine that
the property meets all eligibility requirements in accordance with rule
3745-300-02
of the Administrative Code.
(4)
Based on
evaluation of the phase I property assessment, complete the following
tasks:
(a)
The
certified professional shall use best professional judgment to decide which
requirements in paragraphs (C) and (E) of rule
3745-300-06
of the Administrative Code shall be re-evaluated to determine whether or not
phase II property assessment is required.
(b)
If any
requirements in paragraphs (C) and (E) of rule
3745-300-06
of the Administrative Code require re-evaluation, documentation of the
additional information gathered to comply with this paragraph shall be included
in an updated phase I property assessment report.
(5)
The following
activities shall be performed or completed within one hundred eighty days prior
to the issuance of the no further action letter:
(a)
All requirements
in paragraphs (C) and (E) of rule
3745-300-06
of the Administrative Code pursuant to a phase I property assessment, unless
paragraph (D)(4)(b) of this rule applies.
(b)
A walk-over of
the property by the certified professional.
(6)
If, in the best
professional judgment of the certified professional, no change in environmental
conditions at the property has occurred since the requirements in paragraphs
(C) and (E) of rule
3745-300-06
of the Administrative Code were performed, such requirements need not be
repeated within one hundred-eighty days prior to the issuance of the no further
action letter. For purposes of this rule, a change in environmental conditions
means new information about known or suspected releases to environmental media
that results in one or both of the following:
(a)
Additional
identified areas at the property that are subject to phase II property
assessment.
(b)
Previously identified areas at the property that need
further phase II property assessment due to the new
information.
(E)
No further action
letter preparation and issuance. After performing a review of documents and
completion of other activities in accordance with paragraph (D) of this rule,
if the certified professional concludes on the basis of best available
knowledge, information, and belief that a property meets or shall meet
applicable standards, a certified professional may prepare a no further action
letter for the property. For any no further action letter prepared, the
certified professional shall prepare the no further action letter in the format
prescribed by Ohio EPA, and electronic copies of the document shall be indexed
appropriately in a format prescribed by Ohio EPA. At a minimum, the no further
action letter shall include the following information:
(1)
A statement that the property is eligible to
participate in the voluntary action program pursuant to rule
3745-300-02
of the Administrative Code.
(2)
A statement of
whether or not a risk assessment was performed pursuant to rule
3745-300-09
of the Administrative Code.
(3)
The name, title,
and employer of each person who performed work, other than the certified
professional, to support the no further action letter, and the nature and scope
of the work performed by that person.
(4)
A list of all
documents and affidavits prepared in accordance with paragraphs (O) and (P) of
this rule, and the date such documents and affidavits were prepared, which were
reviewed by the certified professional as described in paragraph (B) of this
rule in preparing the no further action letter.
(5)
An executive
summary, to be filed with deed records, of the information required to be
submitted by the volunteer to the certified professional. The executive summary
shall do the following:
(a)
Reflect the content and demonstrations by which the
property complies with the applicable standards.
(b)
Meet the
recording requirement of paragraph (L) of this rule.
(c)
Reference the
legal description and surveyed acreage of the property.
(6)
A
detailed executive summary, not to be filed with deed records, of the
information required to be submitted by the volunteer to the certified
professional. The detailed executive summary shall do the following:
(a)
Reflect the
content and demonstrations by which the property complies with the applicable
standards.
(b)
Identify the applicable standards for the property that
reflect the certified professional's conclusion that the property complies with
the applicable standards for each complete exposure pathway identified under
paragraph (F)(1) of rule
3745-300-07
of the Administrative Code.
(c)
Verify that the
demonstration of compliance with the applicable standards is based on certified
data that is generated by a certified laboratory pursuant to rule
3745-300-04
of the Administrative Code, if such data is required by rule
3745-300-07
of the Administrative Code.
(d)
Provide a
description of all COCs identified in the environmental media on or from the
property, the source of the COCs, if known, and the locations and concentration
levels of the COCs prior to any remediation. (The no further action letter also
shall provide this information in a summary table format.)
(7)
Summary of figures and maps. The no further action letter
shall include an electronic file as available which includes the map data
formatted in a manner prescribed by Ohio EPA. The property maps shall include,
but are not limited to, the following:
(a)
Property
location map, as required by paragraph (G)(5)(a) of rule
3745-300-06
of the Administrative Code, in a format that maintains readability even if
reproduced without color. Include a version scaled for printing on " 8.5 x 11"
inch-sized paper.
(b)
A boundary survey plat or plats completed (signed and
sealed) by a professional surveyor licensed under Ohio law that includes a
version scaled for printing on " 8.5 x 11" inch-sized paper. Provide a
simplified plat of the boundary survey that maintains readability when printed
on " 8.5 x 11" inch-sized paper. Such plat shall depict the following:
(i)
The boundary of
the property that is the subject of the no further action
letter.
(ii)
The acreage of the property.
(iii)
Each current
tax parcel number that applies to the property. For any portion of the property
that includes less than an entire tax parcel, the plat shall indicate the
affected tax parcel numbers and shall depict the included and excluded
portions.
(c)
Site
maps that show the property boundary, buildings, roads, utilities, surface
waters, geologic cross-section locations, and other site features, as
applicable.
(d)
Geologic cross-sections, which include water level and
saturated zone thickness if applicable.
(e)
Ground water flow
maps, which include water level measurements if applicable.
(f)
The location of
each identified area and exposure unit, if any, which were evaluated in making
the determination that the property complies with applicable
standards.
(g)
The locations of all borings, monitoring wells, and
other sampling locations, as required by paragraph (J)(14)(a) of rule
3745-300-07
of the Administrative Code, if applicable.
(h)
Conceptual site
model figure or diagram, if applicable.
(i)
Site maps that
show the location of remedial activities performed, if
applicable.
(j)
The locations where remedial activities were or are
being implemented pursuant to rule
3745-300-11 of the
Administrative Code.
(k)
A survey plat or plats, completed (signed and sealed)
by a professional surveyor licensed under Ohio law, that delineates the
portions of the property that are subject to engineering controls or any
activity and use limitations, as required by paragraph (J)(14)(e) of rule
3745-300-07
of the Administrative Code. The plat shall be scaled for printing on " 8.5 x
11" inch-sized paper. The plat shall maintain readability when printed as an
attachment to the plan.
(l)
All maps required by this rule shall include the
following:
(i)
A citation that indicates accuracy including the author, and
date of current source.
(ii)
Scale. The scale shall maintain readability even if
reproduced without color.
(8)
Summary tables
which provide the following:
(a)
Regarding all COCs identified in environmental media on
or from the property, the summary tables shall include the following:
(i)
A description of
the COCs by name or type.
(ii)
The source of
such COCs, if known.
(iii)
The locations and concentration levels in affected
media prior to any remediation.
(iv)
The
concentration levels at the time of issuance of the no further action
letter.
(b)
Summary exposure point concentrations for current and
reasonable anticipated post-remedy pathways, if applicable, in soil, ground
water, and vapor intrusion pathways.
(9)
When
institutional controls (use restrictions or activity and use limitations) are
relied upon for the property to comply with applicable standards, provide a
demonstration as applicable.
(a)
When the volunteer does not intend to request a
covenant not to sue from the director, and Ohio EPA is not obligated to review
the no further action letter pursuant to division (C) of section
122.654 of the Revised Code, the
following document is required:
(i)
A copy of the institutional controls (use
restrictions), that is one of the following:
(a)
Bearing the mark
of recordation of the county recorder's office of the county in which the
property is located.
(b)
Entered in the appropriated register for "registered
land," as defined in section
5309.01 of the Revised
Code.
(ii)
The institutional controls shall be consistent with
rule
3745-300-11 of the
Administrative Code and other applicable laws.
(b)
When the
volunteer intends to either request a covenant not to sue from the director, or
to request that the director make a determination pursuant to division (C) of
section 122.654 of the Revised Code, the
following document is required:
(i)
A copy of the proposed environmental covenant for the
property that is both of the following:
(a)
In compliance
with section 5301.82 of the Revised
Code.
(b)
Includes the activity and use limitations developed in
accordance with rule
3745-300-11 of the
Administrative Code and other applicable laws.
(ii)
If only a
portion of the property is the subject to the activity and use limitations
(i.e., the activity and use limitations do not apply to the entire property),
the environmental covenant shall include additional legal description and
survey plat of the portion of the property that is subject to the activity and
use limitations. The survey plat shall be completed by a professional surveyor
under Ohio law. The plat shall be scaled for printing on " 8.5 x 11" inch-sized
paper. The plat shall maintain readability when printed as an attachment to the
environmental covenant.
(10)
A legal
description of the property that is subject to the no further action
letter.
(11)
A copy of the operation and maintenance plan and a copy
of the proposed operation and maintenance agreement prepared in accordance with
rule
3745-300-11 of the
Administrative Code, if the documents are required by that
rule.
(12)
A copy of the risk mitigation plan prepared in
accordance with rule
3745-300-11 of the
Administrative Code, if the plan is required by that rule.
(13)
A copy of the
consolidated standards permit and supporting documents issued pursuant to
section 3746.15 of the Revised Code, if
any.
(14)
A copy of the approval of a variance or case-by-case
determination obtained pursuant to rule
3745-300-12
of the Administrative Code, if any.
(15)
A copy of the
affidavit prepared in connection with the voluntary action by which the
certified professional issued the no further action letter in accordance with
paragraph (Q) of this rule and rule
3745-300-05
of the Administrative Code.
(16)
Any other
information the certified professional considers relevant.
(F)
Certified professional's request to the volunteer. Upon issuance of a no
further action letter, the certified professional shall send a copy of the no
further action letter to the volunteer. The no further action letter shall be
accompanied by the following:
(1)
A written request that the volunteer notify the
certified professional as to whether or not the volunteer directs the certified
professional to submit the no further action letter to Ohio
EPA.
(2)
A written notice informing the volunteer of the
following:
(a)
The no further action letter may be submitted to Ohio EPA only by a certified
professional.
(b)
The volunteer may receive a covenant not to sue in
connection with the voluntary action only if the certified professional submits
the no further action letter to Ohio EPA on behalf of the
volunteer.
(3)
An affidavit, prepared in accordance with paragraph (Q)
of this rule, by the certified professional who issued the no further action
letter.
(G)
Volunteer's notice to certified professional. Promptly
after receipt of the no further action letter and the request described in
paragraph (F)(1) of this rule, the volunteer shall do the following:
(1)
Provide notice to
the certified professional which indicates whether or not the volunteer directs
the certified professional to submit the no further action letter to Ohio EPA
in a manner prescribed by Ohio EPA.
(2)
Provide notice to
Ohio EPA which indicates whether or not the volunteer directs the certified
professional to submit the no further action letter to Ohio
EPA.
(H)
Certified professional's response to volunteer's
notice. Promptly after receipt of the written notice pursuant to paragraph (G)
of this rule, the certified professional shall do either of the
following:
(1)
Submit an electronic version of the no further action letter to Ohio EPA, in a
manner prescribed by Ohio EPA, on behalf of the volunteer, if the volunteer's
notice indicates that the volunteer directs the certified professional to
submit the no further action letter to Ohio EPA. The no further action letter
shall include the following:
(a)
The certified professional's original affidavit
executed in accordance with paragraph (Q) of this rule.
(b)
Administrative
information, in accordance with paragraph (I) of this rule.
(c)
A transmittal
letter, in accordance with paragraph (F) of this rule.
(d)
Volunteer
notification to the certified professional, in accordance with paragraph (G) of
this rule.
(2)
Send the original no further action letter to the
volunteer promptly after receipt of the notice, if the notice indicates that
the volunteer does not direct the certified professional to submit the no
further action letter to Ohio EPA.
(I)
Request for a
covenant not to sue. When the certified professional submits the no further
action letter to Ohio EPA, in accordance with paragraph (G) of this rule, the
certified professional shall submit the no further action letter in the format
prescribed by Ohio EPA and described in paragraph (E) of this rule, and shall
provide administrative information for Ohio EPA to process the request. The
administrative information shall include the following:
(1)
Identification of
the tax parcel numbers and the taxing districts for the property. If any
portion of the property includes less than an entire tax parcel, the no further
action letter shall include a map that indicates the affected tax parcel
numbers, and the included and excluded portions, as described in paragraph (E)
(7) of this rule.
(2)
Payment and fees information based on the current fee
structure defined by Ohio EPA.
(3)
Eligibility
determination of class C releases and non-class C releases of underground
storage tank systems regulated by the bureau of underground storage tank
regulations.
(4)
Property information including the name and contact
information of the volunteer, the certified professional, and the property
owner.
(5)
Remedy information, including whether or not the no
further action letter includes a proposed environmental covenant, an operation
and maintenance plan, or a risk mitigation plan.
(6)
The date that
remedial activities began for the property, and a description of the remedial
activities that began on that date.
(J)
[Reserved.]
(K)
Withdrawal of request for a covenant not to sue. The
volunteer may, through the certified professional, withdraw from Ohio EPA the
submittal of a no further action letter for the property and the request for a
covenant not to sue.
(L)
Recording of documents by the volunteer. If a covenant
not to sue is issued by the director, the volunteer who is issued the covenant
not to sue shall ensure that the certified professional's executive summary of
the no further action letter, in the format described in paragraph (E) of this
rule, the covenant not to sue, and the environmental covenant for the property,
if any, are recorded, in the same manner as a deed to the property, in the
office of the county recorder of the county in which the property is
located.
(M)
Submittal of supporting documentation. Upon receipt of
the covenant not to sue by the volunteer, the certified professional shall
provide, at a minimum, the following supporting documentation evaluated by the
certified professional in accordance with paragraph (D) of this rule to
determine that the property meets or shall meet applicable standards and that
the property was eligible to participate in the voluntary action program, as
applicable:
(1)
The phase I property assessment report completed in
accordance with rule
3745-300-06
of the Administrative Code, and any updates to the phase I property assessment
report.
(2)
Any sampling plans, remediation reports, closure
reports, laboratory reports with dates, and compliance reports.
(3)
The phase II
property assessment report completed in accordance with rule
3745-300-07
of the Administrative Code.
(4)
A description of
all COCs identified in environmental media, the source of such COCs, if known,
and the locations and concentration levels of such COCs prior to and after any
remediation.
(5)
A property-specific risk assessment report completed in
accordance with rule
3745-300-09
of the Administrative Code, if such a property-specific assessment was used in
lieu of, or in addition to, generic numerical standards established in rule
3745-300-08
of the Administrative Code.
(6)
Information that
demonstrates that the property conforms with each of the exposure assumptions
used to calculate the applicable standards for the property, including all
exposure assumptions used to calculate the generic numerical standards
established in rule
3745-300-08
of the Administrative Code and all exposure assumptions used to determine the
applicable standards under rule
3745-300-09
of the Administrative Code, as applicable to the property.
(7)
All affidavits
prepared in connection with the voluntary action in accordance with paragraphs
(O) to (Q) of this rule, and as required by rules
3745-300-04
and
3745-300-05
of the Administrative Code.
(8)
Documentation of
the measures completed to justify a pathway deferral, if a pathway deferral was
completed in accordance with rule
3745-300-11 of the
Administrative Code.
(9)
Any other information the certified professional
considers relevant.
(N)
Transfers. A no
further action letter, a covenant not to sue, and any agreement authorized to
be entered into under Chapter 3746. of the Revised Code and this chapter may be
transferred by the recipient to any other person by assignment or in
conjunction with the acquisition of title to the property to which such
document applies.
(O)
Affidavit requirement for volunteers and persons who
performed work to support a request for issuance of a no further action letter.
When a volunteer or a person who performed work to support a request for the
issuance of a no further action letter submits information, data, documents, or
reports to a certified professional, a certified laboratory, or Ohio EPA, the
volunteer or person shall provide the submittal under affidavit. The affidavit
shall be based on the knowledge, information, and belief of that volunteer or
person, and shall include the following:
(1)
The name of the
affiant.
(2)
A statement that the affiant is authorized to submit
the affidavit on behalf of the volunteer, with the name of the entity with whom
the affiant is employed or retained if the affiant is not employed or retained
by the volunteer.
(3)
The name and address of the property subject to the
voluntary action.
(4)
The purpose for which the information, data, documents,
or reports are submitted.
(5)
An identification
of all information, data, documents, or reports submitted with the
affidavit.
(6)
When information, data, documents, or reports are
submitted to a certified professional to support a request for issuance of a no
further action letter, a statement that the work indicated by the submittal was
conducted in compliance with all applicable local, state, and federal laws and
regulations.
(7)
A statement attesting that all information, data,
documents, or reports submitted by the affiant are true, accurate, and
complete.
(P)
Affidavit
requirement for certified laboratories. The information, data, documents, or
reports submitted by a certified laboratory to a volunteer, a certified
professional, Ohio EPA, or any other person to support a request for issuance
of a no further action letter shall be submitted by affidavit. Each time that
information, data, documents, or reports are submitted by a certified
laboratory in order to conduct or complete a voluntary action, an authorized
representative of the certified laboratory shall submit an affidavit based upon
the certified laboratory's knowledge, information, and belief, that includes
the following:
(1)
The name of the affiant.
(2)
A statement
attesting that the affiant is authorized to submit the affidavit on behalf of
the certified laboratory.
(3)
Name and address of the property that is the subject of
the voluntary action.
(4)
A statement attesting that the purpose for which the
information, data, documents, or reports are submitted is to support a request
for issuance of a no further action letter.
(5)
An identification
of all information, data, documents, or reports submitted with the
affidavit.
(6)
A statement attesting that the certified laboratory
performed the analyses documented in the submittal in accordance with the
laboratory's current certificate issued under the voluntary action program, and
that the laboratory was certified for each analyte, parameter group, and method
used at the time the laboratory performed the analyses.
(7)
A statement
attesting that, at the time of analysis, the analyses were performed pursuant
to the certified laboratory's standard operating procedures and quality
assurance program plan in accordance with rule
3745-300-04
of the Administrative Code.
(8)
A statement
attesting that all information, data, documents, or reports submitted by the
certified laboratory in support of the request for issuance of a no further
action letter are true, accurate, and complete.
(Q)
Affidavit
requirement for the certified professional. For each no further action letter
issued to a volunteer or submitted to Ohio EPA that requests a covenant not to
sue from the director, the certified professional shall submit an affidavit
with the no further action letter. Each affidavit shall be issued based upon
the certified professional's knowledge, information, and belief, and shall
include the following:
(1)
The name of the certified professional.
(2)
The name and
address of the property that is the subject of the no further action letter,
each volunteer, and the property owner.
(3)
A statement
attesting that the certified professional read all standards of conduct in
paragraph (E) of rule
3745-300-05
of the Administrative Code and met the standards of conduct while the certified
professional rendered professional services regarding the voluntary action at
the property.
(4)
A statement attesting that the property is eligible for
the voluntary action program pursuant to rule
3745-300-02
of the Administrative Code and section
3746.02 of the Revised
Code.
(5)
A statement attesting that the voluntary action was
conducted, and that the no further action letter was issued in accordance with
this chapter and Chapter 3746. of the Revised Code.
(6)
A statement
attesting that the voluntary action was conducted in compliance with all
applicable local, state, and federal laws and regulations and any previous
noncompliance was addressed in accordance with such laws and
regulations.
(7)
A statement attesting that the no further action
letter, and any information, data, documents, or reports submitted with the no
further action letter are true, accurate, and complete.
Replaces: 3745-300-13
Notes
Promulgated Under: 119.03
Statutory Authority: 3746.04
Rule Amplifies: 3746.11, 3746.12, 3746.20
Prior Effective Dates: 12/29/1995, 12/16/1996, 04/19/2006, 03/01/2009, 08/01/2014, 05/26/2016
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