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           

                                                          2      

                                                                 
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           

                                                          3      

                                                                 
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          

                                                          4      

                                                                 
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          

                                                          5      

                                                                 
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          

                                                          6      

                                                                 
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          

                                                          7      

                                                                 
      (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          

                                                          8      

                                                                 
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          

                                                          9      

                                                                 
      (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          

                                                          10     

                                                                 
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.                                                       

                                                          11     

                                                                 
      (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          

                                                          12     

                                                                 
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          

                                                          13     

                                                                 
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          

                                                          14     

                                                                 
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          

                                                          15     

                                                                 
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