Ohio General Assembly changes the laws that regulate Construction & Demolition & Debris and extends the terms of hazardous waste permits from 5 years to 10 years. by Frank J. Reed, Jr, Esq. (December 2004)

This past year, the Ohio General Assembly passed Sub. H.B. 432 which changes the regulation and licensure of construction and demolition debris ("C & DD") facilities. C & DD facilities accept waste resulting from the construction, destruction, or repair of any structure including houses, buildings, industrial or commercial facilities, or roadways. Solid waste (defined as garbage, scrap tires, or any unwanted residual solid or semisolid material that results from industrial, commercial, or agricultural operations) is generally believed to pose more of a threat to human health and the environment than C & DD waste. Therefore, a "solid waste disposal facility" is required to have more institutional controls than a facility which only accepts C & DD waste.

Prior to passage of the law, C & DD facilities were required to pay an annual flat fee of $3,000 in order to obtain an installation license and maintain its operation license. Half of the fee went to the local health district, and the other half went to the Ohio EPA in order cover the costs of licensing, inspections, and other costs associated with administering and enforcing the C & DD regulations. Under the new law, facilities must pay a fee of $0.30 per cubic yard or $0.60 per ton of C & DD waste accepted. The owner or operator is responsible for recording these measurements and submitting the calculated fees on a monthly basis to the local health district if the facility is located with an approved health district or the Ohio EPA. However, upon agreement among the parties, these reports and fees may be submitted quarterly.

In addition, if the facility is located within the boundaries of a city or township, the new law gives the city or township the authority to appropriate up to $0.04 per cubic yard or up to $0.08 per ton of the disposal fee for maintaining roads and other public facilities, for providing emergency and other public services, or for compensating the city for reductions in real property taxes resulting from location and operation of the facility within the boundaries of the city or township. A board of county commissioners may also appropriate up to $0.03 per cubic yard or up to $0.06 per ton of the disposal fee for the same purposes.

Under the old law, owners and operators were not permitted to accept any solid waste into a C & DD facility. Owners and operators successfully argued that as a practical matter, it is impossible to completely eliminate all solid waste from C & DD waste. Owners and operators were concerned that under the old law, the Ohio EPA could take an enforcement action against them for accepting even very small amounts of solid waste. As such, under the new law, owners and operators must "attempt" to separate and "remove all solid wastes" from any C & DD waste delivered to the facility prior to disposing the C & DD waste on the "working face" of the facility. The "working face" is defined as the "final place for disposal." In addition, under the new law, the existence of solid wastes on the "working face" of a C & DD facility does not constitute a violation if (1) the solid wastes constitute not more than two cubic yards per one thousand yards of C & DD; (2) four cubic yards per one thousand tons of C &DD. The owner, operator or employees of the facility must remove solid wastes from the "working face" of the facility prior to disposing of the C & DD waste. The law also gives the local board of health or the director of the Ohio EPA to require the owner or operator to remove any "visible" solid waste located on the working face of the C & DD facility.

The second part of H.B. 432 did not regulate C & DD facilities at all, but rather changed the way hazardous waste facilities are required to be permitted. Under current law, a facility that desires to treat, store, or dispose of hazardous waste must obtain an installation permit and an operating permit. The operating permits under current law were valid for five years. Under the new law, operating permits and renewal permits are now valid for ten years. An industry group of permitted facilities successfully argued that this change will ease the administrative burden on companies as well as on the Ohio EPA, while at the same time protecting the interests of the public.