December 2005
Legally Speaking with Brad Tamarro


Ohio Seeks to Establish Background Checks for Construction and Demolition Debris Landfills

To the extent that construction and demolition debris (C&DD) materials do not contain hazardous substances, the regulation of this particular type of waste relies principally on state law. Thus, requirements relating to things like siting criteria for a facility that solely handles C&DD wastes or a combination of solid and C&DD wastes inevitably differ from state to state. For instance, in some states such as Ohio, disclosure statements and background investigations are required for various facilities such as those handling solid waste, hazardous waste, infectious waste or low-level radioactive waste. However, neither the disclosure statement nor the background investigatory requirements in Ohio apply to C&DD facilities.

While some states include materials that make up C&DD in their definition of solid waste, in Ohio, C&DD wastes are separated and are not currently subject to the stricter siting criteria and background checks applicable to solid waste facilities. However, despite this fact, the landscape in Ohio may be changing, making it more difficult to establish C&DD landfills.

In August 2005, a special panel with a mandate to study the regulation of C&DD landfills in Ohio held a contentious hearing where a former state senator demanded the regulations be revised in three areas:

•The creation of a system to provide notice of the submission of an application for a C&DD landfill to neighbors and businesses in the location proposed as the site of the facility;
•A requirement that the state Environmental Protection Agency assist local health departments in evaluating applications; and
•The strengthening of siting requirements.

As if to echo the statements of the former senator, the Ohio legislature is considering a bill1 that would change the existing requirements for C&DD facilities, making the permitting system more in-depth for a would-be operator. The proposed amendment would require any person proposing to open a new C&DD facility to hold a public meeting in the township or municipal corporation where the proposed facility is to be located, provide notice of the public meeting in the local newspaper, and mail a copy of the notice to the director of the Ohio EPA.

The legislative proposal further requires the submission of a disclosure statement and a background investigation and report by the state’s attorney general. The disclosure statement must be submitted to the attorney general no later than 180 days before the application for a C&DD facility is submitted to the state EPA or the board of health. The proposal also requires the submission of a disclosure statement 180 days prior to any change in ownership of an operating facility or for a closed facility that the prospective owner intends to operate. In a case where the parties to a change in ownership decide to proceed with the exchange before the EPA approves the application, the proposed law requires all contracts to include language making the change in ownership subject to EPA approval.

The proposed change in the law would also require annual disclosure statements on the anniversary of the initial submission that address any changes or additional information. Where there have been no changes or additional information, the annual submission can simply consist of an affidavit stating there have been no changes.

Disclosure submissions also would have to be made on an as-needed basis within 90 days of a number of triggering events such as the addition of a new officer, director, partner, key employee or business concern; or a new criminal conviction. The consequences for failing to submit the required disclosure statements would be extremely severe, including the revocation or denial of the license giving the facility the legal authority to operate.

So, what must be included in a disclosure statement? While not a comprehensive list, some examples of the general categories of information include:

•Operational items such as a description of the proposed operations in terms of tonnage and facilities operated.
Contact and identification information for the applicant, or if the applicant is a business concern, for all officers, directors, partners and key employees, along with their fingerprints, a description of their experience and credentials and an organizational chart or diagram
.
•A list of all Notices of Violation received over a five-year time frame and a listing and explanation of all pending or final criminal and civil prosecutions or government administrative enforcement actions.

A full understanding of the existing siting, disclosure and investigatory requirements in your state, as well as proposed legislative changes to those requirements, are essential to the success of any business decision related to a proposal to establish or take over a C&DD operation.

1H.B. No. 75, 126th General Assembly, Regular Session 2005-2006.


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