As Reported by the Senate Energy, Natural Resources 1
and Environment Committee 2
122nd General Assembly 5
Regular Session Sub. S. B. No. 219 6
1997-1998 7
SENATORS GARDNER-CUPP-KEARNS-SUHADOLNIK-NEIN 9
11
A B I L L
To amend sections 3745.70 to 3745.73 and to enact 13
sections 3745.74, 3753.01 to 3753.10, and 3753.99 14
of the Revised Code to require the owners or 15
operators of stationary sources that have more 16
than the threshold quantity of a regulated 17
substance to submit a risk management plan
related to that regulated substance, to establish 18
the requirements of the risk management program, 19
and to revise the statutes relating to
environmental audits. 20
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 22
Section 1. That sections 3745.70, 3745.71, 3745.72, and 24
3745.73 be amended and sections 3745.74, 3753.01, 3753.02, 25
3753.03, 3753.04, 3753.05, 3753.06, 3753.07, 3753.08, 3753.09, 26
3753.10, and 3753.99 of the Revised Code be enacted to read as 27
follows:
Sec. 3745.70. As used in sections 3745.70 to 3745.73 of 37
the Revised Code:
(A) "Environmental audit" means a voluntary, thorough, and 40
discrete self-evaluation of one or more activities at one or more 41
facilities or properties that is documented; is designed to 42
improve compliance, or identify, correct, or prevent 44
noncompliance, with environmental laws; and is conducted by the
owner or operator of a facility or property or the owner OWNER'S 45
or operator's employee or independent contractor. An 47
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environmental audit may be conducted by the owner or operator of 48
a facility or property, the owner's or operator's employees, or 49
independent contractors. ONCE INITIATED, AN AUDIT SHALL BE 50
COMPLETED WITHIN A REASONABLE TIME, NOT TO EXCEED SIX MONTHS, 51
UNLESS A WRITTEN REQUEST FOR AN EXTENSION IS APPROVED BY THE 52
DIRECTOR OF ENVIRONMENTAL PROTECTION BASED ON A SHOWING OF 53
REASONABLE GROUNDS. AN AUDIT SHALL NOT BE CONSIDERED TO BE 54
INITIATED UNTIL THE OWNER OR OPERATOR OR THE OWNER'S OR 55
OPERATOR'S EMPLOYEE OR INDEPENDENT CONTRACTOR ACTIVELY HAS BEGUN 56
THE SELF-EVALUATION OF ENVIRONMENTAL COMPLIANCE. 57
(B) "Activity" means any process, procedure, or function 59
that is subject to environmental laws. 60
(C) "Voluntary" means, with respect to an environmental 62
audit of a particular activity, that all BOTH of the following 63
apply when the audit of that activity commences: 65
(1) The audit is not required by law, prior litigation, or 67
an order by a court or a government agency; 68
(2) The owner or operator who conducts the audit does not 71
know or have reason to know that a government agency has 72
commenced an investigation or enforcement action that concerns a 73
violation of environmental laws involving the activity or that 74
such an investigation or enforcement action is imminent. 75
(D) "Environmental audit report" means interim or final 78
data, documents, records, or plans that are necessary to an 79
environmental audit and are collected, developed, made, and
maintained in good faith as part of the audit, and may include, 81
without limitation:
(1) Analytical data, laboratory reports, field notes and 84
records of observations, findings, opinions, suggestions, 85
conclusions, drafts, memoranda, drawings, photographs, 86
computer-generated or electronically recorded information, maps, 87
charts, graphs, and surveys; 88
(2) Reports that describe the scope, objectives, and 90
methods of the environmental audit, audit management policies, 91
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the information gained by the environmental audit, and 92
conclusions and recommendations together with exhibits and 93
appendices;
(3) Memoranda, documents, records, and plans analyzing the 96
environmental audit report or discussing implementation,
prevention, compliance, and remediation issues associated with 97
the environmental audit.
"Environmental audit report" does not mean corrective or 99
remedial action taken pursuant to an environmental audit. 100
(E) "Environmental laws" means sections 1511.02 and 103
1531.29, Chapters 3704., 3734., 3745., 3746., 3750., 3751., 104
3752., 6109., and 6111. of the Revised Code, and any other 105
sections or chapters of the Revised Code the principal purpose of 106
which is environmental protection; any federal or local 108
counterparts or extensions of those sections or chapters; rules 109
adopted under any such sections, chapters, counterparts, or
extensions; and terms and conditions of orders, permits, 110
licenses, license renewals, variances, exemptions, or plan 111
approvals issued under such sections, chapters, counterparts, or 112
extensions.
Sec. 3745.71. (A) The EXCEPT AS OTHERWISE PROVIDED IN 121
DIVISION (C) OF THIS SECTION, THE owner or operator of a facility 122
or property who conducts an environmental audit of one or more 124
activities at the facility or property has a privilege with 125
respect to both of the following:
(1) The contents of an environmental audit report that is 127
based on the audit; 128
(2) The contents of communications between the owner or 130
operator and employees or contractors of the owner or operator, 131
or among employees or contractors of the owner or operator, that 132
are necessary to the audit and are made in good faith as part of 133
the audit after the employee or contractor is notified that the 134
communication is part of the audit.
(B) Except as otherwise provided in or ordered pursuant to 137
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this section, information that is privileged under this section 138
is not admissible as evidence or subject to discovery in any
criminal, civil, or administrative proceeding and a person who 139
possesses such information as a result of conducting or 141
participating in an environmental audit shall not BE COMPELLED TO 142
testify in any criminal, civil, or administrative proceeding 143
concerning the contents PRIVILEGED PORTIONS of that information 145
THE ENVIRONMENTAL AUDIT.
(C) The PRIVILEGE PROVIDED IN THIS SECTION DOES NOT APPLY 147
TO CRIMINAL INVESTIGATIONS OR PROCEEDINGS. WHERE AN AUDIT REPORT 148
IS OBTAINED, REVIEWED, OR USED IN A CRIMINAL PROCEEDING, THE 149
PRIVILEGE PROVIDED IN THIS SECTION APPLICABLE TO CIVIL OR 150
ADMINISTRATIVE PROCEEDINGS IS NOT WAIVED OR ELIMINATED. 151
FURTHERMORE, THE privilege provided in this section does not 153
apply to particular information under any of the following 154
circumstances:
(1) The privilege is not asserted with respect to that 156
information by the owner or operator to whom the privilege 157
belongs.
(2) The owner or operator to whom the privilege belongs 159
voluntarily testifies, or has provided written authorization to 161
an employee, contractor, or agent to testify on behalf of the 162
owner or operator, as to that information. 163
(3) A court of record in a criminal or civil proceeding or 165
the tribunal or presiding officer in an administrative proceeding 167
finds, pursuant to this section, that the privilege does not 168
apply to that information.
(4) The information is required by law to be collected, 170
developed, maintained, reported, or otherwise made available to a 171
government agency OR OTHERWISE IS REQUIRED BY LAW TO BE DISCLOSED 172
PUBLICLY.
(5) The information is obtained from a source other than 174
an environmental audit report, including, without limitation, 175
observation, sampling, monitoring, a communication, a record, or 176
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a report that is not part of the audit on which the audit report 178
is based.
(6) The information is collected, developed, made, or 180
maintained in bad faith or for a fraudulent purpose. 181
(7) The owner or operator to whom the privilege belongs 183
waives the privilege, in whole or in part, explicitly or by 184
engaging in conduct that manifests a clear intent that the 185
information not be privileged. If an owner or operator 186
introduces part of an environmental audit report into evidence in 187
a civil, criminal, or administrative proceeding to prove that the 190
owner or operator did not violate, or is no longer violating, any
environmental laws, the privilege provided by this section is 191
waived with respect to all information in the audit report that 192
is relevant to that issue. 193
(8)(a) The information shows evidence of noncompliance 195
with environmental laws and THE OWNER OR OPERATOR FAILS TO DO ANY 198
OF THE FOLLOWING: 199
(i) PROMPTLY INITIATE reasonable efforts to achieve 202
compliance with those laws are not initiated and pursued UPON 204
DISCOVERY OF THE NONCOMPLIANCE THROUGH AN ENVIRONMENTAL AUDIT; 205
(ii) PURSUE COMPLIANCE with reasonable diligence upon 208
discovery through the environmental audit of noncompliance. 209
"Reasonable;
(iii) ACHIEVE COMPLIANCE WITHIN A REASONABLE TIME. 212
(b) "REASONABLE diligence" includes, without limitation, 216
compliance with section 3745.72 of the Revised Code.
(9) THE INFORMATION CONTAINS EVIDENCE THAT A GOVERNMENT 218
AGENCY CHARGED WITH ENFORCING ENVIRONMENTAL LAWS ALLEGES IS 219
NECESSARY TO PREVENT IMMINENT AND SUBSTANTIAL ENDANGERMENT OR 220
HARM TO HUMAN HEALTH OR THE ENVIRONMENT. 221
(10) Any circumstance in which both of the following 223
apply:
(a) The information contains evidence regarding an alleged 225
violation of environmental laws and a government agency charged 226
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with enforcing any of those laws has a substantial need for the 227
information to protect public health or safety or to prevent 228
imminent and substantial harm to property or the environment; 230
(b) The government agency is unable to obtain the 232
substantial equivalent of the information by other means without 233
unreasonable delay or expense. 234
(10)(11) The information consists of personal knowledge of 237
an individual who did not obtain that information as part of an 238
environmental audit.
(11)(12) The information is not clearly identified as part 240
of an environmental audit report. For purposes of this section, 243
clear identification of information as part of an environmental 244
audit report includes, without limitation, either of the 245
following:
(a) The information is contained in a document and the 247
front cover, THE first page, or a comparable part of the document 248
is prominently labeled with "environmental audit report: 250
privileged information" or substantially comparable language; 251
(b) The information is contained in an electronic record 253
and the record is programmed to display or print prominently 254
"environmental audit report: privileged information" or 255
substantially comparable language before the privileged 256
information is displayed or printed.
(13) THE INFORMATION EXISTED PRIOR TO THE INITIATION OF 259
THE ENVIRONMENTAL AUDIT UNDER DIVISION (A) OF SECTION 3745.70 OF 261
THE REVISED CODE. 262
(D) If the privilege provided in this section belongs to 264
an owner or operator who is not an individual, the privilege may 265
be asserted or waived, in whole or in part, on behalf of the 266
owner or operator only by an officer, manager, partner, or other 267
comparable person who has a fiduciary relationship with the owner 268
or operator and is authorized generally to act on behalf of the
owner or operator or is a person who is authorized specifically 269
to assert or waive the privilege. 270
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(E) A person asserting the privilege provided in this 272
section has the burden of proving the applicability of the 273
privilege by a preponderance of the evidence. If a person 274
seeking disclosure of information with respect to which a 275
privilege is asserted under this section shows evidence of 276
noncompliance with environmental laws pursuant to division (C)(8) 277
of this section, the person asserting the privilege also has the 278
burden of proving by a preponderance of the evidence that
reasonable efforts to achieve compliance with those laws were 279
initiated PROMPTLY and THAT COMPLIANCE WAS pursued with 281
reasonable diligence pursuant to that division AND ACHIEVED 282
WITHIN A REASONABLE TIME.
(F)(1) When determining whether the privilege provided by 284
this section applies to particular information, a court of record 285
that is not acting pursuant to division (G) of this section, or 286
the tribunal or presiding officer in an administrative 287
proceeding, shall conduct an in camera review of the information 288
in a manner consistent with applicable rules of procedure. 289
(G)(1) The prosecuting attorney of a county or the 291
attorney general, having probable cause to believe, based on 293
information obtained from a source other than an environmental 294
audit report, that a violation has been committed under 295
environmental laws, may obtain information with respect to which 296
a privilege is asserted under this section pursuant to a search
warrant, subpoena, or discovery under the Rules of Civil 297
Procedure or the Rules of Criminal Procedure. The prosecuting 299
attorney or the attorney general immediately shall place the 300
information under seal and shall not review or disclose its 301
contents.
(2) Not later than sixty days after receiving an 303
environmental audit report under division (G)(1) of this section, 305
the prosecuting attorney or the attorney general may file with 306
the court of common pleas of a county in which there is proper 308
venue to prosecute the alleged violation a petition requesting an 309
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in camera hearing to determine if the information described in
division (G)(1) of this section is subject to disclosure under 310
this section. Failure to file such a petition shall cause the 311
information to be released to the owner or operator to whom it 312
belongs.
(3) Upon the filing of a petition under division (G)(2) of 315
this section, the court shall issue an order scheduling an in 316
camera hearing, not later than forty-five days after the filing 317
of the petition, to determine if any or all of the information 319
described in division (G)(1) of this section is subject to 320
disclosure under this section. The order shall allow the 321
prosecuting attorney or the attorney general to remove the seal 322
from the report in order to review it and shall place appropriate 323
limitations on distribution and review of the report to protect 324
against unnecessary disclosure. 325
(4) The prosecuting attorney or the attorney general may 327
consult with government agencies regarding the contents of the 328
report to prepare for the in camera hearing. Information 330
described in division (G)(1) of this section that is used by the 331
prosecuting attorney or the attorney general to prepare for the
in camera hearing shall not be used by the prosecuting attorney, 332
the attorney general, an employee or agent of either of them, or 334
an agency described in division (G)(4) of this section in any 335
investigation or proceeding against the respondent, and otherwise 336
shall be kept confidential, unless the information is subject to 337
disclosure under this section.
(5) The parties may stipulate that information contained 339
in an environmental audit report is or is not subject to 340
disclosure under this section. 341
(6) If the court determines that information described in 344
division (G)(1) of this section is subject to disclosure under 345
this section, the court shall compel disclosure under this 346
section of only the information that is relevant to the
proceeding described in division (G)(1) of this section. 347
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(H) Nothing in this section affects the nature, scope, or 350
application of any privilege of confidentiality or nondisclosure 351
recognized under another section of the Revised Code or the 352
common law of this state, including, without limitation, the work 353
product doctrine and attorney-client privilege. 354
(I) The privilege provided by this section applies only to 356
information and communications that are part of environmental 357
audits conducted INITIATED AFTER MARCH 13, 1997, AND COMPLETED 358
before January 1, 2001 2004, IN ACCORDANCE WITH THE TIME FRAMES 361
SPECIFIED IN DIVISION (A) OF SECTION 3745.70 OF THE REVISED CODE. 364
Sec. 3745.72. (A) The owner or operator of a facility or 373
property who conducts an environmental audit of the facility or 374
property and promptly and voluntarily discloses information 375
contained in or derived from an audit report that is based on the 376
audit and concerns an alleged violation of environmental laws to 377
the director of the state agency that has jurisdiction over the 378
alleged violation is immune from any administrative and civil 381
penalties for that SPECIFIC violation DISCLOSED, EXCEPT THAT 382
WHERE THE DISCLOSED VIOLATION HAS RESULTED IN SIGNIFICANT 383
ECONOMIC BENEFIT, THERE IS NO IMMUNITY FOR THE ECONOMIC BENEFIT 384
COMPONENT OF THE ADMINISTRATIVE AND CIVIL PENALTIES FOR THAT 385
VIOLATION. An owner or operator asserting entitlement to such 388
immunity has the burden of proving that entitlement by a
preponderance of the evidence. 389
(B) For the purposes of this section, a disclosure of 391
information is voluntary with respect to an alleged violation of 392
environmental laws only if all of the following apply: 394
(1) The disclosure is made promptly after the information 397
is obtained through the environmental audit by the owner or
operator who conducts the environmental audit; 398
(2) A reasonable, good faith effort is made to achieve 401
compliance as quickly as practicable with environmental laws
applicable to the information disclosed; 402
(3) Compliance with environmental laws applicable to the 404
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information disclosed is achieved as quickly as practicable or 405
within such period as is reasonably ordered by the director of 406
the state agency that has jurisdiction over the alleged 407
violation;
(4) The owner or operator cooperates with the director of 410
the state agency that has jurisdiction over the alleged violation 411
in investigating the cause, nature, extent, and effects of the
noncompliance; 412
(5) The disclosure is not required by law, prior 414
litigation, or an order by a court or a government agency; 415
(6) The owner or operator who makes the disclosure does 417
not know or have reason to know that a government agency charged 418
with enforcing environmental laws has commenced an investigation 419
or enforcement action that concerns a violation of such laws 420
involving the activity.
(C) For the purposes of this section, a disclosure shall 422
be in writing, dated, and hand delivered or sent by certified 423
mail to the director of the state agency that has jurisdiction 424
over the alleged violation, and shall contain all of the 425
following in a printed letter attached to the front of the 426
disclosure:
(1) The name, address, and telephone number of the owner 428
or operator making the disclosure; 429
(2) The name, title, address, and telephone number of one 431
or more persons associated with the owner or operator who may be 432
contacted regarding the disclosure; 433
(3) A brief summary of the alleged violation of 435
environmental laws, including, without limitation, the nature, 436
date, and location of the alleged violation to the extent that 438
the information is known by the owner or operator; 439
(4) A statement that the information is part of an 441
environmental audit report and is being disclosed under section 442
3745.72 of the Revised Code in order to obtain the immunity 444
provided by that section.
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(D) This section does not provide immunity from the 446
payment of damages for harm to persons, property, or the 447
environment; the payment of reasonable costs incurred by a 448
government agency in responding to a disclosure; or 450
responsibility for the remediation or cleanup of environmental 451
harm under environmental laws.
(E) The immunity provided by this section does not apply 454
to the owner or operator of a facility or property who, within 455
the previous year, made a disclosure under this section with 456
respect to a particular activity and received immunity under this 457
section with respect to that activity UNDER ANY OF THE FOLLOWING 459
CIRCUMSTANCES:
(1) WITHIN THE THREE-YEAR PERIOD PRIOR TO DISCLOSURE, THE 462
OWNER OR OPERATOR OF A FACILITY OR PROPERTY HAS COMMITTED
SIGNIFICANT VIOLATIONS THAT CONSTITUTE A PATTERN OF CONTINUOUS OR 464
REPEATED VIOLATIONS OF ENVIRONMENTAL LAWS, SETTLEMENT AGREEMENTS, 465
OR JUDICIAL ORDERS AND THAT AROSE FROM SEPARATE AND DISTINCT 466
EVENTS. FOR THE PURPOSES OF DIVISION (E)(1) OF THIS SECTION, A 467
PATTERN OF CONTINUOUS OR REPEATED VIOLATIONS ALSO MAY BE 468
DEMONSTRATED BY MULTIPLE SETTLEMENT AGREEMENTS RELATED TO 469
SUBSTANTIALLY THE SAME ALLEGED SIGNIFICANT VIOLATIONS THAT 470
OCCURRED WITHIN THE THREE-YEAR PERIOD IMMEDIATELY PRIOR TO THE 471
VOLUNTARY DISCLOSURE. DETERMINATION OF WHETHER A PERSON HAS A 472
PATTERN OF CONTINUOUS OR REPEATED VIOLATIONS UNDER DIVISION 474
(E)(1) OF THIS SECTION SHALL BE BASED ON THE COMPLIANCE HISTORY 475
OF THE PROPERTY OR SPECIFIC FACILITY AT ISSUE. 476
(2) WITH RESPECT TO A SPECIFIC VIOLATION, THE VIOLATION 479
RESULTED IN SERIOUS HARM OR IN IMMINENT AND SUBSTANTIAL 480
ENDANGERMENT TO HUMAN HEALTH OR THE ENVIRONMENT. 481
(3) WITH RESPECT TO A SPECIFIC VIOLATION, THE VIOLATION IS 484
OF A SPECIFIC REQUIREMENT OF AN ADMINISTRATIVE OR JUDICIAL ORDER. 485
(F) The immunity provided by this section applies only to 487
disclosures made concerning environmental audits conducted 489
INITIATED AFTER MARCH 13, 1997, AND COMPLETED before January 1, 490
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2001 2004, IN ACCORDANCE WITH THE TIME FRAMES SPECIFIED IN 492
DIVISION (A) OF SECTION 3745.70 OF THE REVISED CODE. 495
(G) The immunity provided by this section applies to a 497
person who makes a good faith disclosure to a state agency under 498
this section even though another state agency is determined to 499
have jurisdiction over an alleged violation of environmental laws 500
indicated in the disclosure.
(H) Each state agency that receives a disclosure under 503
this section promptly shall record receipt of the disclosure,
determine whether it has jurisdiction over the alleged violation 504
of environmental laws indicated in the disclosure, and, if it 505
does not have such jurisdiction, deliver the disclosure documents 506
to the director of a state agency that has jurisdiction over the 507
alleged violation. If a disclosure indicates alleged violations 508
of environmental laws that are under the jurisdiction of more 509
than one state agency, the state agency that first receives the 510
disclosure and has jurisdiction over any of the alleged
violations promptly shall notify the director of each state 511
agency that has jurisdiction over any of such alleged violations. 512
The director of each state agency that receives a disclosure 513
under this section, or is notified by another state agency that 514
the director's agency has jurisdiction over an alleged violation 515
of environmental laws indicated in the disclosure, promptly shall 516
deliver written notice of that fact by certified mail to the 517
owner or operator who made the disclosure. The notice shall 518
identify the state agency that sends the notice; state the name, 519
title, address, and telephone number of a person in the agency
who WHOM the owner or operator may contact regarding the 520
disclosure; and state the name, address, and telephone number of 522
the director of any other state agency notified about the 523
disclosure because that agency has jurisdiction over an alleged 524
violation of environmental laws indicated in the disclosure.
Sec. 3745.73. Not later than March 31, 2000 2002, the 533
director of environmental protection, in consultation with the 535
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attorney general, appropriate federal, state, and local agencies, 536
and appropriate statewide organizations, shall submit to the 538
president of the senate and the speaker of the house of
representatives a report on the operation and impacts of this act 539
SUBSTITUTE SENATE BILL NO. 138 OF THE 121st GENERAL ASSEMBLY, 541
including the impact on environmental compliance and protection. 542
The attorney general and each state agency that has received a 543
disclosure under section 3745.72 of the Revised Code shall 544
cooperate with the director in preparing the report required by 545
this section and shall submit information relevant to the report 546
to the director not later than January 31, 2000 2002.
Sec. 3745.74. NOTHING IN SECTIONS 3745.70 TO 3745.73 OF 548
THE REVISED CODE SHALL BE CONSTRUED TO LIMIT OR AFFECT EITHER OF 551
THE FOLLOWING:
(A) THE AUTHORITY OR OBLIGATION OF ANY GOVERNMENT AGENCY 554
PURSUANT TO SECTION 149.43 OF THE REVISED CODE; 556
(B) ANY EMPLOYEE PROTECTION RIGHTS UNDER FEDERAL OR STATE 559
LAWS.
Sec. 3753.01. AS USED IN THIS CHAPTER: 561
(A) "ACCIDENTAL RELEASE" MEANS AN UNANTICIPATED EMISSION 564
OF A REGULATED SUBSTANCE INTO THE AMBIENT AIR FROM A STATIONARY 565
SOURCE.
(B) "CLEAN AIR ACT AMENDMENTS" MEANS THE "CLEAN AIR ACT 570
AMENDMENTS OF 1990," 91 STAT. 685, 42 U.S.C. 7401 ET AL., AS 573
AMENDED, AND REGULATIONS ADOPTED UNDER IT. 574
(C) "COVERED PROCESS" MEANS A PROCESS THAT HAS A REGULATED 577
SUBSTANCE PRESENT IN AN AMOUNT THAT IS IN EXCESS OF THE THRESHOLD 578
QUANTITY ESTABLISHED IN RULES ADOPTED UNDER SECTION 3753.02 OF 579
THE REVISED CODE. 580
(D) "ENVIRONMENTAL RECEPTOR" MEANS NATURAL AREAS SUCH AS 583
NATIONAL OR STATE PARKS, FORESTS, OR MONUMENTS; FEDERALLY 584
DESIGNATED OR STATE-DESIGNATED WILDLIFE SANCTUARIES, PRESERVES, 585
REFUGES, OR AREAS; AND FEDERAL WILDERNESS AREAS, THAT COULD BE 586
EXPOSED AT ANY TIME TO TOXIC CONCENTRATIONS, RADIANT HEAT, OR 587
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OVERPRESSURE GREATER THAN OR EQUAL TO THE ENDPOINTS PRESCRIBED IN 588
RULES ADOPTED UNDER SECTION 3753.02 OF THE REVISED CODE AND THAT 590
CAN BE IDENTIFIED ON UNITED STATES GEOLOGICAL SURVEY MAPS. 591
(E) "OWNER OR OPERATOR" MEANS ANY PERSON WHO OWNS, LEASES, 594
OPERATES, CONTROLS, OR SUPERVISES A STATIONARY SOURCE. 595
(F) "PROCESS" MEANS ANY ACTIVITY INVOLVING A REGULATED 598
SUBSTANCE, INCLUDING ANY USE, STORAGE, MANUFACTURING, HANDLING, 599
OR ON-SITE MOVEMENT OF THE SUBSTANCE OR ANY COMBINATION OF THESE 600
ACTIVITIES. ANY GROUP OF VESSELS THAT ARE INTERCONNECTED, OR 601
SEPARATE VESSELS THAT ARE LOCATED IN SUCH A MANNER THAT A 602
REGULATED SUBSTANCE POTENTIALLY COULD BE INVOLVED IN A RELEASE, 604
SHALL BE CONSIDERED A SINGLE PROCESS.
(G) "PUBLIC" MEANS ANY PERSON EXCEPT EMPLOYEES OR 607
CONTRACTORS AT A STATIONARY SOURCE. 608
(H) "PUBLIC RECEPTOR" MEANS OFF-SITE RESIDENCES, 611
INSTITUTIONS SUCH AS SCHOOLS OR HOSPITALS, INDUSTRIAL, 612
COMMERCIAL, AND OFFICE BUILDINGS, PARKS, OR RECREATIONAL AREAS 613
INHABITED OR OCCUPIED BY THE PUBLIC AT ANY TIME WHERE THE PUBLIC 614
COULD BE EXPOSED TO TOXIC CONCENTRATIONS, RADIANT HEAT, OR 615
OVERPRESSURE AS A RESULT OF AN ACCIDENTAL RELEASE. 616
(I) "REGULATED SUBSTANCE" MEANS A TOXIC OR FLAMMABLE 619
SUBSTANCE LISTED IN RULES ADOPTED UNDER SECTION 3753.02 OF THE 621
REVISED CODE.
(J) "RISK MANAGEMENT PLAN" MEANS A RISK MANAGEMENT PLAN 624
REQUIRED UNDER SECTION 3753.03 OF THE REVISED CODE. 625
(K) "STATIONARY SOURCE" MEANS ANY BUILDINGS, STRUCTURES, 628
EQUIPMENT, INSTALLATIONS, OR SUBSTANCE-EMITTING STATIONARY 629
ACTIVITIES THAT BELONG TO THE SAME INDUSTRIAL GROUP AS DESCRIBED 630
IN THE STANDARD INDUSTRIAL CLASSIFICATION MANUAL, 1987, THAT ARE 631
LOCATED ON ONE OR MORE CONTIGUOUS PROPERTIES UNDER THE CONTROL OF 632
THE SAME PERSON OR PERSONS, AND FROM WHICH AN ACCIDENTAL RELEASE 633
MAY OCCUR. PROPERTIES SHALL NOT BE CONSIDERED CONTIGUOUS SOLELY 635
BECAUSE OF A RAILROAD OR PIPELINE RIGHT-OF-WAY. 636
(1) "STATIONARY SOURCE" INCLUDES TRANSPORTATION CONTAINERS 639
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THAT ARE USED FOR STORAGE NOT INCIDENT TO TRANSPORTATION AND 640
TRANSPORTATION CONTAINERS THAT ARE CONNECTED TO EQUIPMENT AT A 641
STATIONARY SOURCE FOR LOADING AND UNLOADING. "STATIONARY SOURCE" 642
DOES NOT INCLUDE THE TRANSPORTATION, INCLUDING STORAGE INCIDENT 643
TO TRANSPORTATION, OF ANY REGULATED SUBSTANCE UNDER THIS CHAPTER. 644
"STATIONARY SOURCE" DOES NOT INCLUDE NATURALLY OCCURRING 645
HYDROCARBON RESERVOIRS.
(2) "TRANSPORTATION" INCLUDES, BUT IS NOT LIMITED TO, 647
TRANSPORTATION THAT IS SUBJECT TO OVERSIGHT OR REGULATION UNDER 648
49 C.F.R. PART 192, 193, OR 195, OR TO A STATE NATURAL GAS OR 650
HAZARDOUS LIQUID PROGRAM FOR WHICH THE STATE HAS IN EFFECT A 651
CERTIFICATION TO THE UNITED STATES DEPARTMENT OF TRANSPORTATION 653
UNDER 49 U.S.C. 60105.
(L) "THRESHOLD QUANTITY" MEANS THE QUANTITY ESTABLISHED 656
FOR A REGULATED SUBSTANCE IN RULES ADOPTED UNDER SECTION 3753.02 657
OF THE REVISED CODE THAT, IF EXCEEDED, SUBJECTS AN OWNER OR 658
OPERATOR TO COMPLIANCE WITH THIS CHAPTER AND RULES ADOPTED UNDER 659
IT.
(M) "VESSEL" MEANS ANY REACTOR, TANK, DRUM, BARREL, 662
CYLINDER, VAT, KETTLE, BOILER, PIPE, HOSE, OR OTHER CONTAINER. 663
Sec. 3753.02. FOR THE PURPOSE OF IMPLEMENTING AND 665
ADMINISTERING THIS CHAPTER, THE DIRECTOR OF ENVIRONMENTAL 666
PROTECTION MAY ADOPT, AMEND, AND RESCIND RULES IN ACCORDANCE WITH 667
CHAPTER 119. OF THE REVISED CODE. THE RULES SHALL BE CONSISTENT 670
WITH, EQUIVALENT IN SCOPE, CONTENT, AND COVERAGE TO, AND NO MORE 671
STRINGENT THAN THE REQUIREMENTS OF SECTION 112(r) OF THE CLEAN 672
AIR ACT AMENDMENTS AND ANY REGULATIONS ADOPTED PURSUANT TO THAT 674
SECTION. RULES ADOPTED UNDER THIS SECTION MAY DO ANY OR ALL OF 675
THE FOLLOWING:
(A) IDENTIFY AND LIST REGULATED SUBSTANCES AND ESTABLISH A 678
THRESHOLD QUANTITY FOR ANY REGULATED SUBSTANCE IN A PROCESS AT A 679
STATIONARY SOURCE;
(B) ADD REGULATED SUBSTANCES TO OR DELETE REGULATED 682
SUBSTANCES FROM THE LIST ESTABLISHED IN RULES ADOPTED UNDER THIS 683
16
SECTION OR REVISE THE THRESHOLD QUANTITY FOR ANY REGULATED 684
SUBSTANCE;
(C) PRESCRIBE TOXIC AND FLAMMABLE ENDPOINTS FOR REGULATED 687
SUBSTANCES;
(D) PRESCRIBE THE FORMS AND ALL OF THE ELEMENTS OF RISK 689
MANAGEMENT PLANS; 690
(E) PRESCRIBE THE SCHEDULE AND FORMAT FOR THE SUBMISSION 693
OF RISK MANAGEMENT PLANS AND OTHER INFORMATION REQUIRED TO BE 694
SUBMITTED UNDER THIS CHAPTER OR RULES ADOPTED UNDER IT; 695
(F) PRESCRIBE CRITERIA FOR DEVELOPING AND IMPLEMENTING A 698
MANAGEMENT SYSTEM REQUIRED UNDER SECTION 3753.04 OF THE REVISED 699
CODE TO OVERSEE THE IMPLEMENTATION OF THE ELEMENTS OF A RISK 700
MANAGEMENT PROGRAM;
(G) PRESCRIBE CRITERIA FOR CONDUCTING A HAZARD ASSESSMENT 702
REQUIRED UNDER SECTION 3753.04 OF THE REVISED CODE, INCLUDING, 703
BUT NOT LIMITED TO, CRITERIA FOR A WORST CASE RELEASE ASSESSMENT; 704
(H) PRESCRIBE CRITERIA FOR THE IMPLEMENTATION OF 707
PREVENTION REQUIREMENTS FOR COVERED PROCESSES THAT ARE SUBJECT TO 708
PROGRAM 2 OR PROGRAM 3 REQUIREMENTS UNDER SECTION 3753.04 OF THE 709
REVISED CODE;
(I) PRESCRIBE CRITERIA FOR DEVELOPING AN EMERGENCY 712
RESPONSE PROGRAM REQUIRED UNDER SECTION 3753.04 OF THE REVISED 713
CODE;
(J) PRESCRIBE RECORD-KEEPING AND AUDIT REQUIREMENTS, 715
INCLUDING, BUT NOT LIMITED TO, REQUIREMENTS GOVERNING THE 716
AVAILABILITY OF RECORDS TO INDIVIDUALS AND OTHER PERSONS AS 717
PROVIDED IN SECTION 114(C) OF THE CLEAN AIR ACT AMENDMENTS; 718
(K) ESTABLISH ANY OTHER REQUIREMENTS THAT THE DIRECTOR 721
DETERMINES TO BE NECESSARY OR APPROPRIATE TO IMPLEMENT AND 722
ADMINISTER THIS CHAPTER.
Sec. 3753.03. (A) EFFECTIVE UPON THE DATE THAT THE UNITED 725
STATES ENVIRONMENTAL PROTECTION AGENCY DELEGATES THE PROGRAM 726
CREATED UNDER SECTION 112(r) OF THE CLEAN AIR ACT AMENDMENTS TO 727
THE ENVIRONMENTAL PROTECTION AGENCY OF THIS STATE, AN OWNER OR 728
17
OPERATOR OF A STATIONARY SOURCE THAT HAS A COVERED PROCESS SHALL 729
DEVELOP AND SUBMIT A RISK MANAGEMENT PLAN NO LATER THAN THE 730
LATEST OF THE FOLLOWING:
(1) JUNE 21, 1999; 732
(2) THE DATE ON WHICH A REGULATED SUBSTANCE IS FIRST 734
PRESENT ABOVE A THRESHOLD QUANTITY IN A PROCESS AT THE STATIONARY 735
SOURCE;
(3) THREE YEARS AFTER THE DATE ON WHICH A REGULATED 737
SUBSTANCE AT THE STATIONARY SOURCE IS FIRST LISTED UNDER 40 739
C.F.R. 68.130.
(B) AN OWNER OR OPERATOR WHO IS SUBJECT TO DIVISION (A) OF 743
THIS SECTION SHALL SUBMIT A SINGLE RISK MANAGEMENT PLAN THAT 744
REFLECTS ALL COVERED PROCESSES AT THE STATIONARY SOURCE BY THE 745
APPLICABLE DEADLINE ESTABLISHED UNDER THAT DIVISION AND THAT IS 746
IN THE FORM REQUIRED BY THE DIRECTOR OF ENVIRONMENTAL PROTECTION 747
IN RULES ADOPTED UNDER SECTION 3753.02 OF THE REVISED CODE. THE 748
RISK MANAGEMENT PLAN SHALL INCLUDE ALL OF THE FOLLOWING, AS 749
APPLICABLE:
(1) A REGISTRATION THAT REFLECTS ALL COVERED PROCESSES AT 752
THE STATIONARY SOURCE PURSUANT TO 40 C.F.R. 68.160; 753
(2) THE APPLICABLE INFORMATION REQUIRED TO BE SUBMITTED 756
WITH THE PLAN UNDER SECTION 3753.04 OF THE REVISED CODE; 757
(3) A SUMMARY OF THE ACTIONS TAKEN TO COMPLY WITH ALL OF 760
THE OTHER APPLICABLE REQUIREMENTS ESTABLISHED UNDER SECTION
3753.04 OF THE REVISED CODE. 761
(C) AN OWNER OR OPERATOR WHO HAS SUBMITTED A RISK 764
MANAGEMENT PLAN AS REQUIRED BY DIVISION (A) OF THIS SECTION OR 765
SUBMITTED AN UPDATE TO A RISK MANAGEMENT PLAN UNDER DIVISION (C) 767
OF THIS SECTION SHALL REVISE, UPDATE, AND SUBMIT THE RISK 768
MANAGEMENT PLAN IN ACCORDANCE WITH WHICHEVER OF THE FOLLOWING IS 769
APPLICABLE:
(1) NOT LATER THAN FIVE YEARS AFTER THE INITIAL SUBMISSION 772
OF THE RISK MANAGEMENT PLAN UNDER DIVISION (A) OF THIS SECTION; 774
(2) NOT LATER THAN FIVE YEARS AFTER THE MOST RECENT UPDATE 777
18
OF THE RISK MANAGEMENT PLAN SUBMITTED UNDER DIVISION (C) OF THIS 778
SECTION;
(3) AS OTHERWISE PROVIDED IN RULES ADOPTED BY THE DIRECTOR 781
UNDER SECTION 3753.02 OF THE REVISED CODE. 782
(D) NO OWNER OR OPERATOR WHO IS REQUIRED TO SUBMIT A RISK 785
MANAGEMENT PLAN SHALL FAIL TO DO SO. 786
(E) AN OWNER OR OPERATOR WHO IS REQUIRED TO SUBMIT A RISK 789
MANAGEMENT PLAN AND WHO KNOWINGLY MAKES A FALSE STATEMENT IN THE 790
PLAN, ON A RECORD UPON WHICH INFORMATION IN THE PLAN IS BASED, OR 791
ON OR PERTAINING TO ANY OTHER INFORMATION OR RECORDS REQUIRED TO 792
BE MAINTAINED UNDER THIS CHAPTER OR RULES ADOPTED UNDER IT IS 793
GUILTY OF FALSIFICATION UNDER SECTION 2921.13 OF THE REVISED 795
CODE.
Sec. 3753.04. (A) IN ADDITION TO COMPLYING WITH SECTION 797
3753.03 OF THE REVISED CODE, THE OWNER OR OPERATOR OF A 800
STATIONARY SOURCE AT WHICH ONE OR MORE COVERED PROCESSES ARE
PRESENT, AS PART OF THE OWNER OR OPERATOR'S RISK MANAGEMENT 801
PROGRAM, SHALL COMPLY WITH PROGRAM 1, PROGRAM 2, OR PROGRAM 3 802
REQUIREMENTS ESTABLISHED UNDER THIS SECTION OR WITH A COMBINATION 804
OF THOSE REQUIREMENTS. AN OWNER OR OPERATOR SHALL DETERMINE 805
WHICH OF THOSE REQUIREMENTS APPLY TO THE COVERED PROCESSES THAT 806
ARE PRESENT AT THE STATIONARY SOURCE AS PROVIDED IN DIVISIONS (B) 807
TO (D) OF THIS SECTION. AN OWNER OR OPERATOR SHALL COMPLY WITH 808
ALL LEVELS OF PROGRAM REQUIREMENTS THAT APPLY TO THE COVERED 809
PROCESSES AT THE OWNER OR OPERATOR'S STATIONARY SOURCE. 810
(B) THE OWNER OR OPERATOR OF A STATIONARY SOURCE AT WHICH 813
A COVERED PROCESS IS PRESENT IS SUBJECT TO PROGRAM 1 REQUIREMENTS 814
ESTABLISHED UNDER DIVISION (E) OF THIS SECTION IF THE COVERED 816
PROCESS MEETS ALL OF THE FOLLOWING CONDITIONS: 817
(1) FOR THE FIVE YEARS PRIOR TO THE SUBMISSION OF A RISK 819
MANAGEMENT PLAN, THE PROCESS HAS NOT HAD AN ACCIDENTAL RELEASE OF 821
A REGULATED SUBSTANCE WHERE EXPOSURE TO THE SUBSTANCE, ITS
REACTION PRODUCTS, OVERPRESSURE GENERATED BY AN EXPLOSION 822
INVOLVING THE SUBSTANCE, OR RADIANT HEAT GENERATED BY A FIRE 823
19
INVOLVING THE SUBSTANCE LED TO ANY OF THE FOLLOWING OCCURRENCES 825
OFF-SITE:
(a) DEATH OF ANY PERSON; 827
(b) INJURY TO ANY PERSON; 829
(c) RESPONSE OR RESTORATION ACTIVITIES FOR AN 832
ENVIRONMENTAL RECEPTOR.
(2) THE DISTANCE TO A TOXIC OR FLAMMABLE ENDPOINT FOR A 834
WORST CASE RELEASE ASSESSMENT CONDUCTED PURSUANT TO A HAZARD 835
ASSESSMENT AS SPECIFIED IN RULES ADOPTED UNDER SECTION 3753.02 OF 837
THE REVISED CODE IS LESS THAN THE DISTANCE TO ANY PUBLIC 839
RECEPTOR;
(3) EMERGENCY RESPONSE PROCEDURES HAVE BEEN COORDINATED 841
BETWEEN THE STATIONARY SOURCE AND LOCAL EMERGENCY PLANNING AND 842
RESPONSE ORGANIZATIONS. 843
(C) THE OWNER OR OPERATOR OF A STATIONARY SOURCE AT WHICH 846
A COVERED PROCESS IS PRESENT IS SUBJECT TO PROGRAM 2 REQUIREMENTS 847
ESTABLISHED UNDER DIVISION (F) OF THIS SECTION IF THE COVERED 849
PROCESS DOES NOT MEET THE CONDITIONS ESTABLISHED UNDER DIVISION 850
(B) OR (D) OF THIS SECTION. 851
(D) THE OWNER OR OPERATOR OF A STATIONARY SOURCE AT WHICH 854
A COVERED PROCESS IS PRESENT IS SUBJECT TO PROGRAM 3 REQUIREMENTS 855
ESTABLISHED UNDER DIVISION (G) OF THIS SECTION IF THE COVERED 857
PROCESS DOES NOT MEET THE CONDITIONS ESTABLISHED UNDER DIVISION 858
(B) OF THIS SECTION AND EITHER OF THE FOLLOWING CONDITIONS IS 860
MET:
(1) THE PROCESS IS IN STANDARD INDUSTRIAL CLASSIFICATION 862
CODE 2611, 2812, 2819, 2821, 2865, 2869, 2873, 2879, OR 2911; 864
(2) THE PROCESS IS SUBJECT TO THE UNITED STATES 866
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION SAFETY MANAGEMENT 867
STANDARD UNDER 29 C.F.R. 1910.119. 869
(E) THE OWNER OR OPERATOR OF A STATIONARY SOURCE AT WHICH 872
ONE OR MORE COVERED PROCESSES ARE PRESENT THAT MEET THE 873
CONDITIONS ESTABLISHED UNDER DIVISION (B) OF THIS SECTION SHALL 875
COMPLY WITH ALL OF THE FOLLOWING PROGRAM 1 REQUIREMENTS:
20
(1) SUBMIT WITH THE RISK MANAGEMENT PLAN AN ANALYSIS OF 877
THE WORST CASE RELEASE SCENARIO FOR EACH COVERED PROCESS AND 878
DOCUMENTATION THAT THE NEAREST PUBLIC RECEPTOR IS BEYOND THE 879
DISTANCE TO A TOXIC OR FLAMMABLE ENDPOINT; 880
(2) SUBMIT WITH THE RISK MANAGEMENT PLAN A FIVE-YEAR 882
ACCIDENT HISTORY FOR THE PROCESS; 883
(3) ENSURE THAT RESPONSE ACTIONS HAVE BEEN COORDINATED 885
WITH LOCAL EMERGENCY PLANNING AND RESPONSE AGENCIES; 886
(4) CERTIFY IN THE RISK MANAGEMENT PLAN THAT "BASED UPON 889
CRITERIA IN RULES ADOPTED BY THE DIRECTOR OF ENVIRONMENTAL 892
PROTECTION UNDER SECTION 3753.02 OF THE REVISED CODE, THE 894
DISTANCE TO THE SPECIFIED ENDPOINT FOR THE WORST CASE RELEASE 895
SCENARIO FOR THE FOLLOWING PROCESS(ES) IS LESS THAN THE DISTANCE 896
TO THE NEAREST PUBLIC RECEPTOR: (LIST PROCESSES). WITHIN THE 897
PAST FIVE YEARS, THE PROCESS(ES) HAS (HAVE) HAD NO ACCIDENTAL 898
RELEASE THAT CAUSED OFF-SITE IMPACTS AS DESCRIBED IN RULES 899
ADOPTED BY THE DIRECTOR UNDER SECTION 3753.02 OF THE REVISED 902
CODE. NO ADDITIONAL MEASURES ARE NECESSARY TO PREVENT OFF-SITE 903
IMPACTS FROM ACCIDENTAL RELEASES. IN THE EVENT OF FIRE, 904
EXPLOSION, OR A RELEASE OF A REGULATED SUBSTANCE FROM THE 905
PROCESS(ES), ENTRY WITHIN THE DISTANCE TO THE SPECIFIED ENDPOINTS 906
MAY POSE A DANGER TO PUBLIC EMERGENCY RESPONDERS. THEREFORE, 907
PUBLIC EMERGENCY RESPONDERS SHOULD NOT ENTER THIS AREA EXCEPT AS 908
ARRANGED WITH THE EMERGENCY CONTACT INDICATED IN THE RISK 909
MANAGEMENT PLAN. THE UNDERSIGNED CERTIFIES THAT, TO THE BEST OF 910
MY KNOWLEDGE, THE INFORMATION SUBMITTED IS TRUE, ACCURATE, AND 911
COMPLETE. (SIGNATURE, TITLE, DATE SIGNED)" 912
(F) THE OWNER OR OPERATOR OF A STATIONARY SOURCE AT WHICH 915
ONE OR MORE COVERED PROCESSES ARE PRESENT THAT MEET THE 916
CONDITIONS ESTABLISHED UNDER DIVISION (C) OF THIS SECTION SHALL 917
COMPLY WITH ALL OF THE FOLLOWING PROGRAM 2 REQUIREMENTS: 918
(1) DEVELOP AND IMPLEMENT A MANAGEMENT SYSTEM IN 920
ACCORDANCE WITH RULES ADOPTED UNDER SECTION 3753.02 OF THE 922
REVISED CODE; 923
21
(2) CONDUCT A HAZARD ASSESSMENT IN ACCORDANCE WITH RULES 925
ADOPTED UNDER SECTION 3753.02 OF THE REVISED CODE; 928
(3) IMPLEMENT PROGRAM 2 PREVENTION REQUIREMENTS OR 930
IMPLEMENT PROGRAM 3 PREVENTION REQUIREMENTS IN ACCORDANCE WITH 931
RULES ADOPTED UNDER SECTION 3753.02 OF THE REVISED CODE; 934
(4) SUBMIT AS PART OF THE RISK MANAGEMENT PLAN INFORMATION 936
ON PREVENTION PROGRAM ELEMENTS FOR COVERED PROCESSES THAT ARE 937
SUBJECT TO PROGRAM 2 REQUIREMENTS; 938
(5) DEVELOP AND IMPLEMENT AN EMERGENCY RESPONSE PROGRAM IN 941
ACCORDANCE WITH RULES ADOPTED UNDER SECTION 3753.02 OF THE 942
REVISED CODE.
(G) THE OWNER OR OPERATOR OF A STATIONARY SOURCE AT WHICH 946
ONE OR MORE COVERED PROCESSES ARE PRESENT THAT MEET THE 947
CONDITIONS ESTABLISHED UNDER DIVISION (D) OF THIS SECTION SHALL 948
COMPLY WITH ALL OF THE FOLLOWING PROGRAM 3 REQUIREMENTS: 949
(1) DEVELOP AND IMPLEMENT A MANAGEMENT SYSTEM IN 951
ACCORDANCE WITH RULES ADOPTED UNDER SECTION 3753.02 OF THE 953
REVISED CODE; 954
(2) CONDUCT A HAZARD ASSESSMENT IN ACCORDANCE WITH RULES 956
ADOPTED UNDER SECTION 3753.02 OF THE REVISED CODE; 959
(3) IMPLEMENT PROGRAM 3 PREVENTION REQUIREMENTS IN 961
ACCORDANCE WITH RULES ADOPTED UNDER SECTION 3753.02 OF THE 963
REVISED CODE; 964
(4) SUBMIT AS PART OF THE RISK MANAGEMENT PLAN INFORMATION 966
ON PREVENTION PROGRAM ELEMENTS FOR COVERED PROCESSES THAT ARE 967
SUBJECT TO PROGRAM 3 REQUIREMENTS; 968
(5) DEVELOP AND IMPLEMENT AN EMERGENCY RESPONSE PROGRAM IN 971
ACCORDANCE WITH RULES ADOPTED UNDER SECTION 3753.02 OF THE 972
REVISED CODE.
(H) IF AT ANY TIME A COVERED PROCESS AT A STATIONARY 975
SOURCE NO LONGER MEETS THE CONDITIONS ESTABLISHED UNDER THIS 976
SECTION FOR ITS PROGRAM LEVEL, THE OWNER OR OPERATOR SHALL COMPLY 977
WITH THE REQUIREMENTS OF THE NEW PROGRAM LEVEL THAT APPLIES TO 978
THE COVERED PROCESS AND SHALL UPDATE THE RISK MANAGEMENT PLAN AND 979
22
INFORMATION SUBMITTED WITH IT NOT LATER THAN SIX MONTHS AFTER THE 980
CHANGE IN COMPLIANCE WITH THIS CHAPTER AND RULES ADOPTED UNDER 981
IT.
Sec. 3753.05. (A) AN OWNER OR OPERATOR WHO IS REQUIRED TO 983
SUBMIT A RISK MANAGEMENT PLAN SHALL PAY ANNUALLY TO THE 984
ENVIRONMENTAL PROTECTION AGENCY A FEE OF FIFTY DOLLARS TOGETHER 985
WITH ANY OF THE FOLLOWING APPLICABLE FEES: 986
(1) A FEE OF SIXTY-FIVE DOLLARS IF A COVERED PROCESS IN 988
THE STATIONARY SOURCE INCLUDES PROPANE AND PROPANE IS THE ONLY 989
REGULATED SUBSTANCE AT THE STATIONARY SOURCE OVER THE THRESHOLD 990
QUANTITY; 991
(2) A FEE OF SIXTY-FIVE DOLLARS IF A COVERED PROCESS IN 993
THE STATIONARY SOURCE INCLUDES ANHYDROUS AMMONIA THAT IS SOLD FOR 995
USE AS AN AGRICULTURAL NUTRIENT AND IS ON-SITE OVER THE THRESHOLD 996
QUANTITY;
(3) A FEE OF TWO HUNDRED DOLLARS FOR EACH REGULATED 998
SUBSTANCE OVER THE THRESHOLD QUANTITY. PROPANE SHALL BE 999
CONSIDERED A REGULATED SUBSTANCE SUBJECT TO THE FEE LEVIED UNDER 1,000
DIVISION (A)(3) OF THIS SECTION ONLY IF IT IS NOT THE ONLY 1,002
REGULATED SUBSTANCE OVER THE THRESHOLD QUANTITY. ANHYDROUS 1,003
AMMONIA SHALL BE CONSIDERED A REGULATED SUBSTANCE SUBJECT TO THE 1,004
FEE LEVIED UNDER DIVISION (A)(3) OF THIS SECTION ONLY IF IT IS 1,006
NOT SOLD FOR USE AS AN AGRICULTURAL NUTRIENT.
(B) IN ACCORDANCE WITH RULES ADOPTED UNDER SECTION 3753.02 1,009
OF THE REVISED CODE, THE FEES ASSESSED UNDER DIVISION (A) OF THIS 1,012
SECTION SHALL BE COLLECTED FOR THE YEAR 1999 NO LATER THAN JUNE 1,014
21, 1999. THEREAFTER, THE FEES SHALL BE COLLECTED NO LATER THAN 1,015
THE FIRST DAY OF SEPTEMBER OF EACH YEAR. THE FEES ASSESSED UNDER 1,017
DIVISION (A) OF THIS SECTION FOR A STATIONARY SOURCE SHALL BE 1,019
BASED UPON THE REGULATED SUBSTANCES PRESENT OVER THE THRESHOLD 1,020
QUANTITY IDENTIFIED IN THE RISK MANAGEMENT PLAN ON FILE FOR 1,021
CALENDAR YEAR 1999 AS OF THE TWENTY-FIRST DAY OF JUNE AND FOR 1,022
EACH SUBSEQUENT CALENDAR YEAR AS OF THE FIRST DAY OF SEPTEMBER. 1,023
(C) AN OWNER OR OPERATOR WHO IS REQUIRED TO SUBMIT A RISK 1,027
23
MANAGEMENT PLAN AND WHO FAILS TO SUBMIT SUCH A PLAN WITHIN THIRTY 1,028
DAYS AFTER THE APPLICABLE FILING DATE PRESCRIBED IN SECTION 1,029
3753.03 OF THE REVISED CODE SHALL SUBMIT WITH THE RISK MANAGEMENT 1,031
PLAN A LATE FILING FEE OF FIFTEEN PER CENT OF THE TOTAL FEES DUE 1,032
UNDER DIVISION (A) OF THIS SECTION. 1,033
(D) THE DIRECTOR OF ENVIRONMENTAL PROTECTION MAY ESTABLISH 1,036
FEES TO BE PAID BY PERSONS, OTHER THAN PUBLIC OFFICERS OR 1,037
EMPLOYEES, TO COVER THE COSTS OF OBTAINING COPIES OF DOCUMENTS OR 1,038
INFORMATION SUBMITTED TO THE DIRECTOR UNDER THIS CHAPTER AND 1,039
RULES ADOPTED UNDER IT. THE DIRECTOR MAY CHARGE THE ACTUAL COSTS 1,040
INVOLVED IN ACCESSING ANY COMPUTERIZED DATA BASE ESTABLISHED OR 1,041
USED FOR THE PURPOSES OF ASSISTING IN THE ADMINISTRATION OF THIS 1,042
CHAPTER.
(E) ALL MONEYS RECEIVED BY THE AGENCY UNDER DIVISIONS (A), 1,045
(C), AND (D) OF THIS SECTION SHALL BE TRANSMITTED TO THE 1,047
TREASURER OF STATE TO BE CREDITED TO THE RISK MANAGEMENT PLAN 1,048
REPORTING FUND, WHICH IS HEREBY CREATED IN THE STATE TREASURY. 1,049
THE FUND SHALL BE ADMINISTERED BY THE DIRECTOR AND USED 1,050
EXCLUSIVELY FOR THE ADMINISTRATION AND ENFORCEMENT OF THIS 1,051
CHAPTER AND RULES ADOPTED UNDER IT. 1,052
(F) BEGINNING IN FISCAL YEAR 2001, AND EVERY TWO YEARS 1,055
THEREAFTER, THE DIRECTOR SHALL REVIEW THE TOTAL AMOUNT OF MONEYS 1,056
IN THE RISK MANAGEMENT PLAN REPORTING FUND TO DETERMINE IF THAT 1,058
AMOUNT EXCEEDS SEVEN HUNDRED FIFTY THOUSAND DOLLARS IN EITHER OF 1,059
THE TWO PRECEDING FISCAL YEARS. IF THE TOTAL AMOUNT OF MONEYS IN 1,060
THE FUND EXCEEDED SEVEN HUNDRED FIFTY THOUSAND DOLLARS IN EITHER 1,061
FISCAL YEAR, THE DIRECTOR, AFTER REVIEW OF THE FEE STRUCTURE AND 1,063
CONSULTATION WITH AFFECTED PERSONS, SHALL ISSUE AN ORDER REDUCING 1,064
THE AMOUNT OF THE FEES LEVIED UNDER DIVISION (A) OF THIS SECTION 1,066
SO THAT THE ESTIMATED AMOUNT OF MONEYS RESULTING FROM THE FEES 1,067
WILL NOT EXCEED SEVEN HUNDRED FIFTY THOUSAND DOLLARS IN ANY 1,068
FISCAL YEAR.
IF, UPON REVIEW OF THE FEES UNDER THIS DIVISION AND AFTER 1,070
THE FEES HAVE BEEN REDUCED, THE DIRECTOR DETERMINES THAT THE 1,072
24
TOTAL AMOUNT OF MONEYS COLLECTED AND ACCUMULATED IS LESS THAN 1,073
SEVEN HUNDRED FIFTY THOUSAND DOLLARS, THE DIRECTOR, AFTER REVIEW 1,074
OF THE FEE STRUCTURE AND CONSULTATION WITH AFFECTED PERSONS, MAY 1,075
ISSUE AN ORDER INCREASING THE AMOUNT OF THE FEES LEVIED UNDER 1,076
DIVISION (A) OF THIS SECTION SO THAT THE ESTIMATED AMOUNT OF 1,078
MONEYS RESULTING FROM THE FEES WILL BE APPROXIMATELY SEVEN 1,079
HUNDRED FIFTY THOUSAND DOLLARS. FEES SHALL NEVER BE INCREASD TO 1,080
AN AMOUNT EXCEEDING THE AMOUNT SPECIFIED IN DIVISION (A) OF THIS 1,081
SECTION.
NOTWITHSTANDING SECTION 119.06 OF THE REVISED CODE, THE 1,084
DIRECTOR MAY ISSUE AN ORDER UNDER THIS DIVISION WITHOUT THE 1,085
NECESSITY TO HOLD AN ADJUDICATORY HEARING IN CONNECTION WITH THE 1,086
ORDER. THE ISSUANCE OF AN ORDER UNDER THIS DIVISION IS NOT AN 1,087
ACT OR ACTION FOR PURPOSES OF SECTION 3745.04 OF THE REVISED 1,089
CODE.
Sec. 3753.06. NO PERSON SHALL VIOLATE ANY SECTION OF THIS 1,092
CHAPTER OR A RULE ADOPTED OR ORDER ISSUED UNDER IT.
Sec. 3753.07. THE DIRECTOR OF ENVIRONMENTAL PROTECTION OR 1,095
THE DIRECTOR'S AUTHORIZED REPRESENTATIVE, UPON PROPER
IDENTIFICATION AND UPON STATING THE PURPOSE AND NECESSITY OF AN 1,096
INSPECTION, MAY ENTER AT REASONABLE TIMES UPON ANY PRIVATE OR 1,097
PUBLIC PROPERTY, REAL OR PERSONAL, TO INSPECT, INVESTIGATE, 1,098
OBTAIN SAMPLES, AND EXAMINE AND COPY RECORDS TO DETERMINE 1,099
COMPLIANCE WITH THIS CHAPTER AND RULES ADOPTED OR ORDERS ISSUED 1,100
UNDER IT. THE DIRECTOR OR THE DIRECTOR'S AUTHORIZED 1,101
REPRESENTATIVE MAY APPLY FOR, AND ANY JUDGE OF A COURT OF RECORD 1,102
MAY ISSUE FOR USE WITHIN THE COURT'S TERRITORIAL JURISDICTION, AN 1,104
ADMINISTRATIVE INSPECTION WARRANT UNDER DIVISION (F) OF SECTION 1,105
2933.21 OF THE REVISED CODE OR OTHER APPROPRIATE SEARCH WARRANT 1,108
NECESSARY TO ACHIEVE THE PURPOSES OF THIS CHAPTER AND RULES 1,109
ADOPTED OR ORDERS ISSUED UNDER IT.
Sec. 3753.08. THE DIRECTOR OF ENVIRONMENTAL PROTECTION MAY 1,112
ISSUE ORDERS REQUIRING AN OWNER OR OPERATOR WHO IS SUBJECT TO 1,113
THIS CHAPTER TO ABATE A VIOLATION OF SECTION 3753.06 OF THE 1,114
25
REVISED CODE. THE DIRECTOR MAY ISSUE SUCH ORDERS AS FINAL ORDERS 1,115
WITHOUT ISSUING A PROPOSED ACTION UNDER SECTION 3745.07 OF THE 1,117
REVISED CODE AND, NOTWITHSTANDING SECTION 119.06 OF THE REVISED 1,120
CODE, WITHOUT THE NECESSITY TO HOLD AN ADJUDICATION HEARING. 1,121
ISSUANCE OF AN ORDER UNDER THIS SECTION IS NOT A CONDITION 1,122
PRECEDENT TO BRINGING ANY CIVIL OR CRIMINAL ACTION UNDER THIS 1,123
CHAPTER.
Sec. 3753.09. (A) THE ATTORNEY GENERAL OR THE PROSECUTING 1,126
ATTORNEY OF THE COUNTY OR DIRECTOR OF LAW OF THE CITY WHERE A 1,127
VIOLATION HAS OCCURRED OR IS OCCURRING, UPON WRITTEN REQUEST OF 1,128
THE DIRECTOR OF ENVIRONMENTAL PROTECTION, SHALL PROSECUTE TO 1,129
TERMINATION ANY PERSON WHO HAS VIOLATED DIVISION (D) OF SECTION 1,131
3753.03 OF THE REVISED CODE OR SHALL BRING AN ACTION FOR 1,133
INJUNCTION AGAINST ANY PERSON WHO HAS VIOLATED OR IS VIOLATING 1,134
SECTION 3753.06 OF THE REVISED CODE. THE COURT OF COMMON PLEAS 1,135
IN WHICH AN ACTION FOR INJUNCTION IS FILED HAS THE JURISDICTION 1,137
TO AND SHALL GRANT PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF 1,138
UPON A SHOWING THAT THE PERSON AGAINST WHOM THE ACTION IS BROUGHT 1,139
HAS VIOLATED OR IS VIOLATING SECTION 3753.06 OF THE REVISED CODE.
THE COURT SHALL GIVE PRECEDENCE TO SUCH AN ACTION OVER ALL OTHER 1,141
CASES.
(B) WHOEVER VIOLATES SECTION 3753.06 OF THE REVISED CODE 1,145
SHALL PAY A CIVIL PENALTY OF NOT MORE THAN TWENTY-FIVE THOUSAND 1,146
DOLLARS FOR EACH DAY OF EACH VIOLATION. THE ATTORNEY GENERAL OR 1,147
THE PROSECUTING ATTORNEY OF THE COUNTY OR DIRECTOR OF LAW OF THE 1,148
CITY WHERE A VIOLATION OF THAT SECTION HAS OCCURRED OR IS 1,149
OCCURRING, UPON WRITTEN REQUEST OF THE DIRECTOR, SHALL BRING AN 1,150
ACTION FOR THE IMPOSITION OF A CIVIL PENALTY UNDER THIS DIVISION 1,151
AGAINST ANY PERSON WHO HAS COMMITTED OR IS COMMITTING ANY SUCH 1,152
VIOLATION. MONEYS RESULTING FROM CIVIL PENALTIES IMPOSED UNDER
THIS DIVISION SHALL BE CREDITED TO THE RISK MANAGEMENT PLAN 1,153
REPORTING FUND CREATED IN SECTION 3753.05 OF THE REVISED CODE. 1,155
(C) UPON THE CERTIFIED WRITTEN REQUEST OF ANY PERSON, THE 1,157
DIRECTOR SHALL CONDUCT INVESTIGATIONS AND MAKE INQUIRIES THAT ARE 1,158
26
NECESSARY TO SECURE COMPLIANCE WITH THIS CHAPTER OR RULES ADOPTED 1,160
OR ORDERS ISSUED UNDER IT. THE DIRECTOR, UPON REQUEST OR UPON 1,161
THE DIRECTOR'S OWN INITIATIVE, MAY INVESTIGATE OR MAKE INQUIRIES 1,162
INTO ANY VIOLATION OF THIS CHAPTER OR RULES ADOPTED OR ORDERS 1,163
ISSUED UNDER IT.
Sec. 3753.10. (A) AS USED IN THIS SECTION: 1,165
(1) "HARM" MEANS INJURY TO, DEATH OF, OR LOSS TO PERSON OR 1,167
PROPERTY. 1,168
(2) "TORT ACTION" MEANS A CIVIL ACTION FOR DAMAGES FOR 1,170
HARM, BUT DOES NOT INCLUDE A CIVIL ACTION FOR DAMAGES FOR A 1,171
BREACH OF CONTRACT OR OTHER AGREEMENT BETWEEN PERSONS OR FOR A 1,172
BREACH OF A WARRANTY THAT EXISTS PURSUANT TO THE REVISED CODE OR 1,174
THE COMMON LAW OF THIS STATE. 1,175
(B) THE STATE, AND ANY OFFICER OR EMPLOYEE OF THE STATE AS 1,178
DEFINED IN SECTION 109.36 OF THE REVISED CODE, IS NOT LIABLE IN A 1,179
TORT ACTION WHEN THE STATE INSPECTS, INVESTIGATES, REVIEWS, OR 1,180
ACCEPTS A RISK MANAGEMENT PLAN FROM AN OWNER OR OPERATOR WHO IS 1,181
SUBJECT TO THIS CHAPTER UNLESS AN ACTION OR OMISSION OF THE 1,183
STATE, OR OF AN OFFICER OR EMPLOYEE OF THE STATE, CONSTITUTES 1,184
WILLFUL OR WANTON MISCONDUCT OR INTENTIONALLY TORTUOUS CONDUCT. 1,185
ANY ACTION BROUGHT AGAINST THE STATE UNDER THIS DIVISION SHALL BE 1,186
BROUGHT IN THE COURT OF CLAIMS.
(C)(1) THIS SECTION DOES NOT CREATE, AND SHALL NOT BE 1,189
CONSTRUED AS CREATING, A NEW CAUSE OF ACTION AGAINST OR 1,190
SUBSTANTIVE LEGAL RIGHT AGAINST THE STATE OR AN OFFICER OR 1,191
EMPLOYEE OF THE STATE.
(2) THIS SECTION DOES NOT AFFECT, AND SHALL NOT BE 1,193
CONSTRUED AS AFFECTING, ANY IMMUNITIES FROM CIVIL LIABILITY OR 1,194
DEFENSES ESTABLISHED BY THE REVISED CODE, THE UNITED STATES 1,198
CONSTITUTION, OR THE OHIO CONSTITUTION OR AVAILABLE AT COMMON LAW 1,199
TO WHICH THIS STATE, OR AN OFFICER OR EMPLOYEE OF THE STATE, MAY 1,200
BE ENTITLED UNDER CIRCUMSTANCES NOT COVERED BY THIS SECTION. 1,201
(3) SECTION 9.86 OF THE REVISED CODE DOES NOT APPLY TO AN 1,204
OFFICER OR EMPLOYEE OF THE STATE IF THE OFFICER OR EMPLOYEE IS 1,205
27
PERFORMING WORK IN CONNECTION WITH INSPECTING, INVESTIGATING, 1,206
REVIEWING, OR ACCEPTING A RISK MANAGEMENT PLAN FROM AN OWNER OR 1,207
OPERATOR WHO IS SUBJECT TO THIS CHAPTER AT THE TIME THAT THE 1,209
OFFICER OR EMPLOYEE ALLEGEDLY CAUSED THE HARM OR CAUSED OR 1,210
CONTRIBUTED TO THE PRESENCE OR RELEASE OF TOXIC OR FLAMMABLE 1,211
SUBSTANCES FOR WHICH DAMAGES ARE SOUGHT IN A TORT ACTION. IN THE 1,212
ALTERNATIVE, THE IMMUNITIES CONFERRED BY DIVISION (B) OF THIS 1,213
SECTION APPLY TO THAT INDIVIDUAL.
Sec. 3753.99. WHOEVER PURPOSELY VIOLATES DIVISION (D) OF 1,216
SECTION 3753.03 OF THE REVISED CODE SHALL BE FINED NOT MORE THAN 1,218
TWENTY THOUSAND DOLLARS AND IMPRISONED FOR NOT MORE THAN ONE 1,219
YEAR, OR BOTH. EACH DAY OF VIOLATION IS A SEPARATE OFFENSE.
Section 2. That existing sections 3745.70, 3745.71, 1,221
3745.72, and 3745.73 of the Revised Code are hereby repealed. 1,222