As Passed by the Senate 1
122nd General Assembly 4
Regular Session Sub. S. B. No. 219 5
1997-1998 6
SENATORS GARDNER-CUPP-KEARNS-SUHADOLNIK-NEIN 8
10
A B I L L
To amend sections 3745.70 to 3745.73 and to enact 12
sections 3745.74, 3753.01 to 3753.10, and 3753.99 13
of the Revised Code to require the owners or 14
operators of stationary sources that have more 15
than the threshold quantity of a regulated 16
substance to submit a risk management plan
related to that regulated substance, to establish 17
the requirements of the risk management program, 18
and to revise the statutes relating to
environmental audits. 19
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 21
Section 1. That sections 3745.70, 3745.71, 3745.72, and 23
3745.73 be amended and sections 3745.74, 3753.01, 3753.02, 24
3753.03, 3753.04, 3753.05, 3753.06, 3753.07, 3753.08, 3753.09, 25
3753.10, and 3753.99 of the Revised Code be enacted to read as 26
follows:
Sec. 3745.70. As used in sections 3745.70 to 3745.73 of 36
the Revised Code:
(A) "Environmental audit" means a voluntary, thorough, and 39
discrete self-evaluation of one or more activities at one or more 40
facilities or properties that is documented; is designed to 41
improve compliance, or identify, correct, or prevent 43
noncompliance, with environmental laws; and is conducted by the
owner or operator of a facility or property or the owner OWNER'S 44
or operator's employee or independent contractor. An 46
environmental audit may be conducted by the owner or operator of 47
2
a facility or property, the owner's or operator's employees, or 48
independent contractors. ONCE INITIATED, AN AUDIT SHALL BE 49
COMPLETED WITHIN A REASONABLE TIME, NOT TO EXCEED SIX MONTHS, 50
UNLESS A WRITTEN REQUEST FOR AN EXTENSION IS APPROVED BY THE 51
DIRECTOR OF ENVIRONMENTAL PROTECTION BASED ON A SHOWING OF 52
REASONABLE GROUNDS. AN AUDIT SHALL NOT BE CONSIDERED TO BE 53
INITIATED UNTIL THE OWNER OR OPERATOR OR THE OWNER'S OR 54
OPERATOR'S EMPLOYEE OR INDEPENDENT CONTRACTOR ACTIVELY HAS BEGUN 55
THE SELF-EVALUATION OF ENVIRONMENTAL COMPLIANCE. 56
(B) "Activity" means any process, procedure, or function 58
that is subject to environmental laws. 59
(C) "Voluntary" means, with respect to an environmental 61
audit of a particular activity, that all BOTH of the following 62
apply when the audit of that activity commences: 64
(1) The audit is not required by law, prior litigation, or 66
an order by a court or a government agency; 67
(2) The owner or operator who conducts the audit does not 70
know or have reason to know that a government agency has 71
commenced an investigation or enforcement action that concerns a 72
violation of environmental laws involving the activity or that 73
such an investigation or enforcement action is imminent. 74
(D) "Environmental audit report" means interim or final 77
data, documents, records, or plans that are necessary to an 78
environmental audit and are collected, developed, made, and
maintained in good faith as part of the audit, and may include, 80
without limitation:
(1) Analytical data, laboratory reports, field notes and 83
records of observations, findings, opinions, suggestions, 84
conclusions, drafts, memoranda, drawings, photographs, 85
computer-generated or electronically recorded information, maps, 86
charts, graphs, and surveys; 87
(2) Reports that describe the scope, objectives, and 89
methods of the environmental audit, audit management policies, 90
the information gained by the environmental audit, and 91
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conclusions and recommendations together with exhibits and 92
appendices;
(3) Memoranda, documents, records, and plans analyzing the 95
environmental audit report or discussing implementation,
prevention, compliance, and remediation issues associated with 96
the environmental audit.
"Environmental audit report" does not mean corrective or 98
remedial action taken pursuant to an environmental audit. 99
(E) "Environmental laws" means sections 1511.02 and 102
1531.29, Chapters 3704., 3734., 3745., 3746., 3750., 3751., 103
3752., 6109., and 6111. of the Revised Code, and any other 104
sections or chapters of the Revised Code the principal purpose of 105
which is environmental protection; any federal or local 107
counterparts or extensions of those sections or chapters; rules 108
adopted under any such sections, chapters, counterparts, or
extensions; and terms and conditions of orders, permits, 109
licenses, license renewals, variances, exemptions, or plan 110
approvals issued under such sections, chapters, counterparts, or 111
extensions.
Sec. 3745.71. (A) The EXCEPT AS OTHERWISE PROVIDED IN 120
DIVISION (C) OF THIS SECTION, THE owner or operator of a facility 121
or property who conducts an environmental audit of one or more 123
activities at the facility or property has a privilege with 124
respect to both of the following:
(1) The contents of an environmental audit report that is 126
based on the audit; 127
(2) The contents of communications between the owner or 129
operator and employees or contractors of the owner or operator, 130
or among employees or contractors of the owner or operator, that 131
are necessary to the audit and are made in good faith as part of 132
the audit after the employee or contractor is notified that the 133
communication is part of the audit.
(B) Except as otherwise provided in or ordered pursuant to 136
this section, information that is privileged under this section 137
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is not admissible as evidence or subject to discovery in any
criminal, civil, or administrative proceeding and a person who 138
possesses such information as a result of conducting or 140
participating in an environmental audit shall not BE COMPELLED TO 141
testify in any criminal, civil, or administrative proceeding 142
concerning the contents PRIVILEGED PORTIONS of that information 144
THE ENVIRONMENTAL AUDIT.
(C) The PRIVILEGE PROVIDED IN THIS SECTION DOES NOT APPLY 146
TO CRIMINAL INVESTIGATIONS OR PROCEEDINGS. WHERE AN AUDIT REPORT 147
IS OBTAINED, REVIEWED, OR USED IN A CRIMINAL PROCEEDING, THE 148
PRIVILEGE PROVIDED IN THIS SECTION APPLICABLE TO CIVIL OR 149
ADMINISTRATIVE PROCEEDINGS IS NOT WAIVED OR ELIMINATED. 150
FURTHERMORE, THE privilege provided in this section does not 152
apply to particular information under any of the following 153
circumstances:
(1) The privilege is not asserted with respect to that 155
information by the owner or operator to whom the privilege 156
belongs.
(2) The owner or operator to whom the privilege belongs 158
voluntarily testifies, or has provided written authorization to 160
an employee, contractor, or agent to testify on behalf of the 161
owner or operator, as to that information. 162
(3) A court of record in a criminal or civil proceeding or 164
the tribunal or presiding officer in an administrative proceeding 166
finds, pursuant to this section, that the privilege does not 167
apply to that information.
(4) The information is required by law to be collected, 169
developed, maintained, reported, or otherwise made available to a 170
government agency OR OTHERWISE IS REQUIRED BY LAW TO BE DISCLOSED 171
PUBLICLY.
(5) The information is obtained from a source other than 173
an environmental audit report, including, without limitation, 174
observation, sampling, monitoring, a communication, a record, or 175
a report that is not part of the audit on which the audit report 177
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is based.
(6) The information is collected, developed, made, or 179
maintained in bad faith or for a fraudulent purpose. 180
(7) The owner or operator to whom the privilege belongs 182
waives the privilege, in whole or in part, explicitly or by 183
engaging in conduct that manifests a clear intent that the 184
information not be privileged. If an owner or operator 185
introduces part of an environmental audit report into evidence in 186
a civil, criminal, or administrative proceeding to prove that the 189
owner or operator did not violate, or is no longer violating, any
environmental laws, the privilege provided by this section is 190
waived with respect to all information in the audit report that 191
is relevant to that issue. 192
(8)(a) The information shows evidence of noncompliance 194
with environmental laws and THE OWNER OR OPERATOR FAILS TO DO ANY 197
OF THE FOLLOWING: 198
(i) PROMPTLY INITIATE reasonable efforts to achieve 201
compliance with those laws are not initiated and pursued UPON 203
DISCOVERY OF THE NONCOMPLIANCE THROUGH AN ENVIRONMENTAL AUDIT; 204
(ii) PURSUE COMPLIANCE with reasonable diligence upon 207
discovery through the environmental audit of noncompliance. 208
"Reasonable;
(iii) ACHIEVE COMPLIANCE WITHIN A REASONABLE TIME. 211
(b) "REASONABLE diligence" includes, without limitation, 215
compliance with section 3745.72 of the Revised Code.
(9) THE INFORMATION CONTAINS EVIDENCE THAT A GOVERNMENT 217
AGENCY CHARGED WITH ENFORCING ENVIRONMENTAL LAWS ALLEGES IS 218
NECESSARY TO PREVENT IMMINENT AND SUBSTANTIAL ENDANGERMENT OR 219
HARM TO HUMAN HEALTH OR THE ENVIRONMENT. 220
(10) Any circumstance in which both of the following 222
apply:
(a) The information contains evidence regarding an alleged 224
violation of environmental laws and a government agency charged 225
with enforcing any of those laws has a substantial need for the 226
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information to protect public health or safety or to prevent 227
imminent and substantial harm to property or the environment; 229
(b) The government agency is unable to obtain the 231
substantial equivalent of the information by other means without 232
unreasonable delay or expense. 233
(10)(11) The information consists of personal knowledge of 236
an individual who did not obtain that information as part of an 237
environmental audit.
(11)(12) The information is not clearly identified as part 239
of an environmental audit report. For purposes of this section, 242
clear identification of information as part of an environmental 243
audit report includes, without limitation, either of the 244
following:
(a) The information is contained in a document and the 246
front cover, THE first page, or a comparable part of the document 247
is prominently labeled with "environmental audit report: 249
privileged information" or substantially comparable language; 250
(b) The information is contained in an electronic record 252
and the record is programmed to display or print prominently 253
"environmental audit report: privileged information" or 254
substantially comparable language before the privileged 255
information is displayed or printed.
(13) THE INFORMATION EXISTED PRIOR TO THE INITIATION OF 258
THE ENVIRONMENTAL AUDIT UNDER DIVISION (A) OF SECTION 3745.70 OF 260
THE REVISED CODE. 261
(D) If the privilege provided in this section belongs to 263
an owner or operator who is not an individual, the privilege may 264
be asserted or waived, in whole or in part, on behalf of the 265
owner or operator only by an officer, manager, partner, or other 266
comparable person who has a fiduciary relationship with the owner 267
or operator and is authorized generally to act on behalf of the
owner or operator or is a person who is authorized specifically 268
to assert or waive the privilege. 269
(E) A person asserting the privilege provided in this 271
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section has the burden of proving the applicability of the 272
privilege by a preponderance of the evidence. If a person 273
seeking disclosure of information with respect to which a 274
privilege is asserted under this section shows evidence of 275
noncompliance with environmental laws pursuant to division (C)(8) 276
of this section, the person asserting the privilege also has the 277
burden of proving by a preponderance of the evidence that
reasonable efforts to achieve compliance with those laws were 278
initiated PROMPTLY and THAT COMPLIANCE WAS pursued with 280
reasonable diligence pursuant to that division AND ACHIEVED 281
WITHIN A REASONABLE TIME.
(F)(1) When determining whether the privilege provided by 283
this section applies to particular information, a court of record 284
that is not acting pursuant to division (G) of this section, or 285
the tribunal or presiding officer in an administrative 286
proceeding, shall conduct an in camera review of the information 287
in a manner consistent with applicable rules of procedure. 288
(G)(1) The prosecuting attorney of a county or the 290
attorney general, having probable cause to believe, based on 292
information obtained from a source other than an environmental 293
audit report, that a violation has been committed under 294
environmental laws, may obtain information with respect to which 295
a privilege is asserted under this section pursuant to a search
warrant, subpoena, or discovery under the Rules of Civil 296
Procedure or the Rules of Criminal Procedure. The prosecuting 298
attorney or the attorney general immediately shall place the 299
information under seal and shall not review or disclose its 300
contents.
(2) Not later than sixty days after receiving an 302
environmental audit report under division (G)(1) of this section, 304
the prosecuting attorney or the attorney general may file with 305
the court of common pleas of a county in which there is proper 307
venue to prosecute the alleged violation a petition requesting an 308
in camera hearing to determine if the information described in
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division (G)(1) of this section is subject to disclosure under 309
this section. Failure to file such a petition shall cause the 310
information to be released to the owner or operator to whom it 311
belongs.
(3) Upon the filing of a petition under division (G)(2) of 314
this section, the court shall issue an order scheduling an in 315
camera hearing, not later than forty-five days after the filing 316
of the petition, to determine if any or all of the information 318
described in division (G)(1) of this section is subject to 319
disclosure under this section. The order shall allow the 320
prosecuting attorney or the attorney general to remove the seal 321
from the report in order to review it and shall place appropriate 322
limitations on distribution and review of the report to protect 323
against unnecessary disclosure. 324
(4) The prosecuting attorney or the attorney general may 326
consult with government agencies regarding the contents of the 327
report to prepare for the in camera hearing. Information 329
described in division (G)(1) of this section that is used by the 330
prosecuting attorney or the attorney general to prepare for the
in camera hearing shall not be used by the prosecuting attorney, 331
the attorney general, an employee or agent of either of them, or 333
an agency described in division (G)(4) of this section in any 334
investigation or proceeding against the respondent, and otherwise 335
shall be kept confidential, unless the information is subject to 336
disclosure under this section.
(5) The parties may stipulate that information contained 338
in an environmental audit report is or is not subject to 339
disclosure under this section. 340
(6) If the court determines that information described in 343
division (G)(1) of this section is subject to disclosure under 344
this section, the court shall compel disclosure under this 345
section of only the information that is relevant to the
proceeding described in division (G)(1) of this section. 346
(H) Nothing in this section affects the nature, scope, or 349
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application of any privilege of confidentiality or nondisclosure 350
recognized under another section of the Revised Code or the 351
common law of this state, including, without limitation, the work 352
product doctrine and attorney-client privilege. 353
(I) The privilege provided by this section applies only to 355
information and communications that are part of environmental 356
audits conducted INITIATED AFTER MARCH 13, 1997, AND COMPLETED 357
before January 1, 2001 2004, IN ACCORDANCE WITH THE TIME FRAMES 360
SPECIFIED IN DIVISION (A) OF SECTION 3745.70 OF THE REVISED CODE. 363
Sec. 3745.72. (A) The owner or operator of a facility or 372
property who conducts an environmental audit of the facility or 373
property and promptly and voluntarily discloses information 374
contained in or derived from an audit report that is based on the 375
audit and concerns an alleged violation of environmental laws to 376
the director of the state agency that has jurisdiction over the 377
alleged violation is immune from any administrative and civil 380
penalties for that SPECIFIC violation DISCLOSED, EXCEPT THAT 381
WHERE THE DISCLOSED VIOLATION HAS RESULTED IN SIGNIFICANT 382
ECONOMIC BENEFIT, THERE IS NO IMMUNITY FOR THE ECONOMIC BENEFIT 383
COMPONENT OF THE ADMINISTRATIVE AND CIVIL PENALTIES FOR THAT 384
VIOLATION. An owner or operator asserting entitlement to such 387
immunity has the burden of proving that entitlement by a
preponderance of the evidence. 388
(B) For the purposes of this section, a disclosure of 390
information is voluntary with respect to an alleged violation of 391
environmental laws only if all of the following apply: 393
(1) The disclosure is made promptly after the information 396
is obtained through the environmental audit by the owner or
operator who conducts the environmental audit; 397
(2) A reasonable, good faith effort is made to achieve 400
compliance as quickly as practicable with environmental laws
applicable to the information disclosed; 401
(3) Compliance with environmental laws applicable to the 403
information disclosed is achieved as quickly as practicable or 404
10
within such period as is reasonably ordered by the director of 405
the state agency that has jurisdiction over the alleged 406
violation;
(4) The owner or operator cooperates with the director of 409
the state agency that has jurisdiction over the alleged violation 410
in investigating the cause, nature, extent, and effects of the
noncompliance; 411
(5) The disclosure is not required by law, prior 413
litigation, or an order by a court or a government agency; 414
(6) The owner or operator who makes the disclosure does 416
not know or have reason to know that a government agency charged 417
with enforcing environmental laws has commenced an investigation 418
or enforcement action that concerns a violation of such laws 419
involving the activity.
(C) For the purposes of this section, a disclosure shall 421
be in writing, dated, and hand delivered or sent by certified 422
mail to the director of the state agency that has jurisdiction 423
over the alleged violation, and shall contain all of the 424
following in a printed letter attached to the front of the 425
disclosure:
(1) The name, address, and telephone number of the owner 427
or operator making the disclosure; 428
(2) The name, title, address, and telephone number of one 430
or more persons associated with the owner or operator who may be 431
contacted regarding the disclosure; 432
(3) A brief summary of the alleged violation of 434
environmental laws, including, without limitation, the nature, 435
date, and location of the alleged violation to the extent that 437
the information is known by the owner or operator; 438
(4) A statement that the information is part of an 440
environmental audit report and is being disclosed under section 441
3745.72 of the Revised Code in order to obtain the immunity 443
provided by that section.
(D) This section does not provide immunity from the 445
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payment of damages for harm to persons, property, or the 446
environment; the payment of reasonable costs incurred by a 447
government agency in responding to a disclosure; or 449
responsibility for the remediation or cleanup of environmental 450
harm under environmental laws.
(E) The immunity provided by this section does not apply 453
to the owner or operator of a facility or property who, within 454
the previous year, made a disclosure under this section with 455
respect to a particular activity and received immunity under this 456
section with respect to that activity UNDER ANY OF THE FOLLOWING 458
CIRCUMSTANCES:
(1) WITHIN THE THREE-YEAR PERIOD PRIOR TO DISCLOSURE, THE 461
OWNER OR OPERATOR OF A FACILITY OR PROPERTY HAS COMMITTED
SIGNIFICANT VIOLATIONS THAT CONSTITUTE A PATTERN OF CONTINUOUS OR 463
REPEATED VIOLATIONS OF ENVIRONMENTAL LAWS, SETTLEMENT AGREEMENTS, 464
OR JUDICIAL ORDERS AND THAT AROSE FROM SEPARATE AND DISTINCT 465
EVENTS. FOR THE PURPOSES OF DIVISION (E)(1) OF THIS SECTION, A 466
PATTERN OF CONTINUOUS OR REPEATED VIOLATIONS ALSO MAY BE 467
DEMONSTRATED BY MULTIPLE SETTLEMENT AGREEMENTS RELATED TO 468
SUBSTANTIALLY THE SAME ALLEGED SIGNIFICANT VIOLATIONS THAT 469
OCCURRED WITHIN THE THREE-YEAR PERIOD IMMEDIATELY PRIOR TO THE 470
VOLUNTARY DISCLOSURE. DETERMINATION OF WHETHER A PERSON HAS A 471
PATTERN OF CONTINUOUS OR REPEATED VIOLATIONS UNDER DIVISION 473
(E)(1) OF THIS SECTION SHALL BE BASED ON THE COMPLIANCE HISTORY 474
OF THE PROPERTY OR SPECIFIC FACILITY AT ISSUE. 475
(2) WITH RESPECT TO A SPECIFIC VIOLATION, THE VIOLATION 478
RESULTED IN SERIOUS HARM OR IN IMMINENT AND SUBSTANTIAL 479
ENDANGERMENT TO HUMAN HEALTH OR THE ENVIRONMENT. 480
(3) WITH RESPECT TO A SPECIFIC VIOLATION, THE VIOLATION IS 483
OF A SPECIFIC REQUIREMENT OF AN ADMINISTRATIVE OR JUDICIAL ORDER. 484
(F) The immunity provided by this section applies only to 486
disclosures made concerning environmental audits conducted 488
INITIATED AFTER MARCH 13, 1997, AND COMPLETED before January 1, 489
2001 2004, IN ACCORDANCE WITH THE TIME FRAMES SPECIFIED IN 491
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DIVISION (A) OF SECTION 3745.70 OF THE REVISED CODE. 494
(G) The immunity provided by this section applies to a 496
person who makes a good faith disclosure to a state agency under 497
this section even though another state agency is determined to 498
have jurisdiction over an alleged violation of environmental laws 499
indicated in the disclosure.
(H) Each state agency that receives a disclosure under 502
this section promptly shall record receipt of the disclosure,
determine whether it has jurisdiction over the alleged violation 503
of environmental laws indicated in the disclosure, and, if it 504
does not have such jurisdiction, deliver the disclosure documents 505
to the director of a state agency that has jurisdiction over the 506
alleged violation. If a disclosure indicates alleged violations 507
of environmental laws that are under the jurisdiction of more 508
than one state agency, the state agency that first receives the 509
disclosure and has jurisdiction over any of the alleged
violations promptly shall notify the director of each state 510
agency that has jurisdiction over any of such alleged violations. 511
The director of each state agency that receives a disclosure 512
under this section, or is notified by another state agency that 513
the director's agency has jurisdiction over an alleged violation 514
of environmental laws indicated in the disclosure, promptly shall 515
deliver written notice of that fact by certified mail to the 516
owner or operator who made the disclosure. The notice shall 517
identify the state agency that sends the notice; state the name, 518
title, address, and telephone number of a person in the agency
who WHOM the owner or operator may contact regarding the 519
disclosure; and state the name, address, and telephone number of 521
the director of any other state agency notified about the 522
disclosure because that agency has jurisdiction over an alleged 523
violation of environmental laws indicated in the disclosure.
Sec. 3745.73. Not later than March 31, 2000 2002, the 532
director of environmental protection, in consultation with the 534
attorney general, appropriate federal, state, and local agencies, 535
13
and appropriate statewide organizations, shall submit to the 537
president of the senate and the speaker of the house of
representatives a report on the operation and impacts of this act 538
SUBSTITUTE SENATE BILL NO. 138 OF THE 121st GENERAL ASSEMBLY, 540
including the impact on environmental compliance and protection. 541
The attorney general and each state agency that has received a 542
disclosure under section 3745.72 of the Revised Code shall 543
cooperate with the director in preparing the report required by 544
this section and shall submit information relevant to the report 545
to the director not later than January 31, 2000 2002.
Sec. 3745.74. NOTHING IN SECTIONS 3745.70 TO 3745.73 OF 547
THE REVISED CODE SHALL BE CONSTRUED TO LIMIT OR AFFECT EITHER OF 550
THE FOLLOWING:
(A) THE AUTHORITY OR OBLIGATION OF ANY GOVERNMENT AGENCY 553
PURSUANT TO SECTION 149.43 OF THE REVISED CODE; 555
(B) ANY EMPLOYEE PROTECTION RIGHTS UNDER FEDERAL OR STATE 558
LAWS.
Sec. 3753.01. AS USED IN THIS CHAPTER: 560
(A) "ACCIDENTAL RELEASE" MEANS AN UNANTICIPATED EMISSION 563
OF A REGULATED SUBSTANCE INTO THE AMBIENT AIR FROM A STATIONARY 564
SOURCE.
(B) "CLEAN AIR ACT AMENDMENTS" MEANS THE "CLEAN AIR ACT 569
AMENDMENTS OF 1990," 91 STAT. 685, 42 U.S.C. 7401 ET AL., AS 572
AMENDED, AND REGULATIONS ADOPTED UNDER IT. 573
(C) "COVERED PROCESS" MEANS A PROCESS THAT HAS A REGULATED 576
SUBSTANCE PRESENT IN AN AMOUNT THAT IS IN EXCESS OF THE THRESHOLD 577
QUANTITY ESTABLISHED IN RULES ADOPTED UNDER SECTION 3753.02 OF 578
THE REVISED CODE. 579
(D) "ENVIRONMENTAL RECEPTOR" MEANS NATURAL AREAS SUCH AS 582
NATIONAL OR STATE PARKS, FORESTS, OR MONUMENTS; FEDERALLY 583
DESIGNATED OR STATE-DESIGNATED WILDLIFE SANCTUARIES, PRESERVES, 584
REFUGES, OR AREAS; AND FEDERAL WILDERNESS AREAS, THAT COULD BE 585
EXPOSED AT ANY TIME TO TOXIC CONCENTRATIONS, RADIANT HEAT, OR 586
OVERPRESSURE GREATER THAN OR EQUAL TO THE ENDPOINTS PRESCRIBED IN 587
14
RULES ADOPTED UNDER SECTION 3753.02 OF THE REVISED CODE AND THAT 589
CAN BE IDENTIFIED ON UNITED STATES GEOLOGICAL SURVEY MAPS. 590
(E) "OWNER OR OPERATOR" MEANS ANY PERSON WHO OWNS, LEASES, 593
OPERATES, CONTROLS, OR SUPERVISES A STATIONARY SOURCE. 594
(F) "PROCESS" MEANS ANY ACTIVITY INVOLVING A REGULATED 597
SUBSTANCE, INCLUDING ANY USE, STORAGE, MANUFACTURING, HANDLING, 598
OR ON-SITE MOVEMENT OF THE SUBSTANCE OR ANY COMBINATION OF THESE 599
ACTIVITIES. ANY GROUP OF VESSELS THAT ARE INTERCONNECTED, OR 600
SEPARATE VESSELS THAT ARE LOCATED IN SUCH A MANNER THAT A 601
REGULATED SUBSTANCE POTENTIALLY COULD BE INVOLVED IN A RELEASE, 603
SHALL BE CONSIDERED A SINGLE PROCESS.
(G) "PUBLIC" MEANS ANY PERSON EXCEPT EMPLOYEES OR 606
CONTRACTORS AT A STATIONARY SOURCE. 607
(H) "PUBLIC RECEPTOR" MEANS OFF-SITE RESIDENCES, 610
INSTITUTIONS SUCH AS SCHOOLS OR HOSPITALS, INDUSTRIAL, 611
COMMERCIAL, AND OFFICE BUILDINGS, PARKS, OR RECREATIONAL AREAS 612
INHABITED OR OCCUPIED BY THE PUBLIC AT ANY TIME WHERE THE PUBLIC 613
COULD BE EXPOSED TO TOXIC CONCENTRATIONS, RADIANT HEAT, OR 614
OVERPRESSURE AS A RESULT OF AN ACCIDENTAL RELEASE. 615
(I) "REGULATED SUBSTANCE" MEANS A TOXIC OR FLAMMABLE 618
SUBSTANCE LISTED IN RULES ADOPTED UNDER SECTION 3753.02 OF THE 620
REVISED CODE.
(J) "RISK MANAGEMENT PLAN" MEANS A RISK MANAGEMENT PLAN 623
REQUIRED UNDER SECTION 3753.03 OF THE REVISED CODE. 624
(K) "STATIONARY SOURCE" MEANS ANY BUILDINGS, STRUCTURES, 627
EQUIPMENT, INSTALLATIONS, OR SUBSTANCE-EMITTING STATIONARY 628
ACTIVITIES THAT BELONG TO THE SAME INDUSTRIAL GROUP AS DESCRIBED 629
IN THE STANDARD INDUSTRIAL CLASSIFICATION MANUAL, 1987, THAT ARE 630
LOCATED ON ONE OR MORE CONTIGUOUS PROPERTIES UNDER THE CONTROL OF 631
THE SAME PERSON OR PERSONS, AND FROM WHICH AN ACCIDENTAL RELEASE 632
MAY OCCUR. PROPERTIES SHALL NOT BE CONSIDERED CONTIGUOUS SOLELY 634
BECAUSE OF A RAILROAD OR PIPELINE RIGHT-OF-WAY. 635
(1) "STATIONARY SOURCE" INCLUDES TRANSPORTATION CONTAINERS 638
THAT ARE USED FOR STORAGE NOT INCIDENT TO TRANSPORTATION AND 639
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TRANSPORTATION CONTAINERS THAT ARE CONNECTED TO EQUIPMENT AT A 640
STATIONARY SOURCE FOR LOADING AND UNLOADING. "STATIONARY SOURCE" 641
DOES NOT INCLUDE THE TRANSPORTATION, INCLUDING STORAGE INCIDENT 642
TO TRANSPORTATION, OF ANY REGULATED SUBSTANCE UNDER THIS CHAPTER. 643
"STATIONARY SOURCE" DOES NOT INCLUDE NATURALLY OCCURRING 644
HYDROCARBON RESERVOIRS.
(2) "TRANSPORTATION" INCLUDES, BUT IS NOT LIMITED TO, 646
TRANSPORTATION THAT IS SUBJECT TO OVERSIGHT OR REGULATION UNDER 647
49 C.F.R. PART 192, 193, OR 195, OR TO A STATE NATURAL GAS OR 649
HAZARDOUS LIQUID PROGRAM FOR WHICH THE STATE HAS IN EFFECT A 650
CERTIFICATION TO THE UNITED STATES DEPARTMENT OF TRANSPORTATION 652
UNDER 49 U.S.C. 60105.
(L) "THRESHOLD QUANTITY" MEANS THE QUANTITY ESTABLISHED 655
FOR A REGULATED SUBSTANCE IN RULES ADOPTED UNDER SECTION 3753.02 656
OF THE REVISED CODE THAT, IF EXCEEDED, SUBJECTS AN OWNER OR 657
OPERATOR TO COMPLIANCE WITH THIS CHAPTER AND RULES ADOPTED UNDER 658
IT.
(M) "VESSEL" MEANS ANY REACTOR, TANK, DRUM, BARREL, 661
CYLINDER, VAT, KETTLE, BOILER, PIPE, HOSE, OR OTHER CONTAINER. 662
Sec. 3753.02. FOR THE PURPOSE OF IMPLEMENTING AND 664
ADMINISTERING THIS CHAPTER, THE DIRECTOR OF ENVIRONMENTAL 665
PROTECTION MAY ADOPT, AMEND, AND RESCIND RULES IN ACCORDANCE WITH 666
CHAPTER 119. OF THE REVISED CODE. THE RULES SHALL BE CONSISTENT 669
WITH, EQUIVALENT IN SCOPE, CONTENT, AND COVERAGE TO, AND NO MORE 670
STRINGENT THAN THE REQUIREMENTS OF SECTION 112(r) OF THE CLEAN 671
AIR ACT AMENDMENTS AND ANY REGULATIONS ADOPTED PURSUANT TO THAT 673
SECTION. RULES ADOPTED UNDER THIS SECTION MAY DO ANY OR ALL OF 674
THE FOLLOWING:
(A) IDENTIFY AND LIST REGULATED SUBSTANCES AND ESTABLISH A 677
THRESHOLD QUANTITY FOR ANY REGULATED SUBSTANCE IN A PROCESS AT A 678
STATIONARY SOURCE;
(B) ADD REGULATED SUBSTANCES TO OR DELETE REGULATED 681
SUBSTANCES FROM THE LIST ESTABLISHED IN RULES ADOPTED UNDER THIS 682
SECTION OR REVISE THE THRESHOLD QUANTITY FOR ANY REGULATED 683
16
SUBSTANCE;
(C) PRESCRIBE TOXIC AND FLAMMABLE ENDPOINTS FOR REGULATED 686
SUBSTANCES;
(D) PRESCRIBE THE FORMS AND ALL OF THE ELEMENTS OF RISK 688
MANAGEMENT PLANS; 689
(E) PRESCRIBE THE SCHEDULE AND FORMAT FOR THE SUBMISSION 692
OF RISK MANAGEMENT PLANS AND OTHER INFORMATION REQUIRED TO BE 693
SUBMITTED UNDER THIS CHAPTER OR RULES ADOPTED UNDER IT; 694
(F) PRESCRIBE CRITERIA FOR DEVELOPING AND IMPLEMENTING A 697
MANAGEMENT SYSTEM REQUIRED UNDER SECTION 3753.04 OF THE REVISED 698
CODE TO OVERSEE THE IMPLEMENTATION OF THE ELEMENTS OF A RISK 699
MANAGEMENT PROGRAM;
(G) PRESCRIBE CRITERIA FOR CONDUCTING A HAZARD ASSESSMENT 701
REQUIRED UNDER SECTION 3753.04 OF THE REVISED CODE, INCLUDING, 702
BUT NOT LIMITED TO, CRITERIA FOR A WORST CASE RELEASE ASSESSMENT; 703
(H) PRESCRIBE CRITERIA FOR THE IMPLEMENTATION OF 706
PREVENTION REQUIREMENTS FOR COVERED PROCESSES THAT ARE SUBJECT TO 707
PROGRAM 2 OR PROGRAM 3 REQUIREMENTS UNDER SECTION 3753.04 OF THE 708
REVISED CODE;
(I) PRESCRIBE CRITERIA FOR DEVELOPING AN EMERGENCY 711
RESPONSE PROGRAM REQUIRED UNDER SECTION 3753.04 OF THE REVISED 712
CODE;
(J) PRESCRIBE RECORD-KEEPING AND AUDIT REQUIREMENTS, 714
INCLUDING, BUT NOT LIMITED TO, REQUIREMENTS GOVERNING THE 715
AVAILABILITY OF RECORDS TO INDIVIDUALS AND OTHER PERSONS AS 716
PROVIDED IN SECTION 114(C) OF THE CLEAN AIR ACT AMENDMENTS; 717
(K) ESTABLISH ANY OTHER REQUIREMENTS THAT THE DIRECTOR 720
DETERMINES TO BE NECESSARY OR APPROPRIATE TO IMPLEMENT AND 721
ADMINISTER THIS CHAPTER.
Sec. 3753.03. (A) EFFECTIVE UPON THE DATE THAT THE UNITED 724
STATES ENVIRONMENTAL PROTECTION AGENCY DELEGATES THE PROGRAM 725
CREATED UNDER SECTION 112(r) OF THE CLEAN AIR ACT AMENDMENTS TO 726
THE ENVIRONMENTAL PROTECTION AGENCY OF THIS STATE, AN OWNER OR 727
OPERATOR OF A STATIONARY SOURCE THAT HAS A COVERED PROCESS SHALL 728
17
DEVELOP AND SUBMIT A RISK MANAGEMENT PLAN NO LATER THAN THE 729
LATEST OF THE FOLLOWING:
(1) JUNE 21, 1999; 731
(2) THE DATE ON WHICH A REGULATED SUBSTANCE IS FIRST 733
PRESENT ABOVE A THRESHOLD QUANTITY IN A PROCESS AT THE STATIONARY 734
SOURCE;
(3) THREE YEARS AFTER THE DATE ON WHICH A REGULATED 736
SUBSTANCE AT THE STATIONARY SOURCE IS FIRST LISTED UNDER 40 738
C.F.R. 68.130.
(B) AN OWNER OR OPERATOR WHO IS SUBJECT TO DIVISION (A) OF 742
THIS SECTION SHALL SUBMIT A SINGLE RISK MANAGEMENT PLAN THAT 743
REFLECTS ALL COVERED PROCESSES AT THE STATIONARY SOURCE BY THE 744
APPLICABLE DEADLINE ESTABLISHED UNDER THAT DIVISION AND THAT IS 745
IN THE FORM REQUIRED BY THE DIRECTOR OF ENVIRONMENTAL PROTECTION 746
IN RULES ADOPTED UNDER SECTION 3753.02 OF THE REVISED CODE. THE 747
RISK MANAGEMENT PLAN SHALL INCLUDE ALL OF THE FOLLOWING, AS 748
APPLICABLE:
(1) A REGISTRATION THAT REFLECTS ALL COVERED PROCESSES AT 751
THE STATIONARY SOURCE PURSUANT TO 40 C.F.R. 68.160; 752
(2) THE APPLICABLE INFORMATION REQUIRED TO BE SUBMITTED 755
WITH THE PLAN UNDER SECTION 3753.04 OF THE REVISED CODE; 756
(3) A SUMMARY OF THE ACTIONS TAKEN TO COMPLY WITH ALL OF 759
THE OTHER APPLICABLE REQUIREMENTS ESTABLISHED UNDER SECTION
3753.04 OF THE REVISED CODE. 760
(C) AN OWNER OR OPERATOR WHO HAS SUBMITTED A RISK 763
MANAGEMENT PLAN AS REQUIRED BY DIVISION (A) OF THIS SECTION OR 764
SUBMITTED AN UPDATE TO A RISK MANAGEMENT PLAN UNDER DIVISION (C) 766
OF THIS SECTION SHALL REVISE, UPDATE, AND SUBMIT THE RISK 767
MANAGEMENT PLAN IN ACCORDANCE WITH WHICHEVER OF THE FOLLOWING IS 768
APPLICABLE:
(1) NOT LATER THAN FIVE YEARS AFTER THE INITIAL SUBMISSION 771
OF THE RISK MANAGEMENT PLAN UNDER DIVISION (A) OF THIS SECTION; 773
(2) NOT LATER THAN FIVE YEARS AFTER THE MOST RECENT UPDATE 776
OF THE RISK MANAGEMENT PLAN SUBMITTED UNDER DIVISION (C) OF THIS 777
18
SECTION;
(3) AS OTHERWISE PROVIDED IN RULES ADOPTED BY THE DIRECTOR 780
UNDER SECTION 3753.02 OF THE REVISED CODE. 781
(D) NO OWNER OR OPERATOR WHO IS REQUIRED TO SUBMIT A RISK 784
MANAGEMENT PLAN SHALL FAIL TO DO SO. 785
(E) AN OWNER OR OPERATOR WHO IS REQUIRED TO SUBMIT A RISK 788
MANAGEMENT PLAN AND WHO KNOWINGLY MAKES A FALSE STATEMENT IN THE 789
PLAN, ON A RECORD UPON WHICH INFORMATION IN THE PLAN IS BASED, OR 790
ON OR PERTAINING TO ANY OTHER INFORMATION OR RECORDS REQUIRED TO 791
BE MAINTAINED UNDER THIS CHAPTER OR RULES ADOPTED UNDER IT IS 792
GUILTY OF FALSIFICATION UNDER SECTION 2921.13 OF THE REVISED 794
CODE.
Sec. 3753.04. (A) IN ADDITION TO COMPLYING WITH SECTION 796
3753.03 OF THE REVISED CODE, THE OWNER OR OPERATOR OF A 799
STATIONARY SOURCE AT WHICH ONE OR MORE COVERED PROCESSES ARE
PRESENT, AS PART OF THE OWNER OR OPERATOR'S RISK MANAGEMENT 800
PROGRAM, SHALL COMPLY WITH PROGRAM 1, PROGRAM 2, OR PROGRAM 3 801
REQUIREMENTS ESTABLISHED UNDER THIS SECTION OR WITH A COMBINATION 803
OF THOSE REQUIREMENTS. AN OWNER OR OPERATOR SHALL DETERMINE 804
WHICH OF THOSE REQUIREMENTS APPLY TO THE COVERED PROCESSES THAT 805
ARE PRESENT AT THE STATIONARY SOURCE AS PROVIDED IN DIVISIONS (B) 806
TO (D) OF THIS SECTION. AN OWNER OR OPERATOR SHALL COMPLY WITH 807
ALL LEVELS OF PROGRAM REQUIREMENTS THAT APPLY TO THE COVERED 808
PROCESSES AT THE OWNER OR OPERATOR'S STATIONARY SOURCE. 809
(B) THE OWNER OR OPERATOR OF A STATIONARY SOURCE AT WHICH 812
A COVERED PROCESS IS PRESENT IS SUBJECT TO PROGRAM 1 REQUIREMENTS 813
ESTABLISHED UNDER DIVISION (E) OF THIS SECTION IF THE COVERED 815
PROCESS MEETS ALL OF THE FOLLOWING CONDITIONS: 816
(1) FOR THE FIVE YEARS PRIOR TO THE SUBMISSION OF A RISK 818
MANAGEMENT PLAN, THE PROCESS HAS NOT HAD AN ACCIDENTAL RELEASE OF 820
A REGULATED SUBSTANCE WHERE EXPOSURE TO THE SUBSTANCE, ITS
REACTION PRODUCTS, OVERPRESSURE GENERATED BY AN EXPLOSION 821
INVOLVING THE SUBSTANCE, OR RADIANT HEAT GENERATED BY A FIRE 822
INVOLVING THE SUBSTANCE LED TO ANY OF THE FOLLOWING OCCURRENCES 824
19
OFF-SITE:
(a) DEATH OF ANY PERSON; 826
(b) INJURY TO ANY PERSON; 828
(c) RESPONSE OR RESTORATION ACTIVITIES FOR AN 831
ENVIRONMENTAL RECEPTOR.
(2) THE DISTANCE TO A TOXIC OR FLAMMABLE ENDPOINT FOR A 833
WORST CASE RELEASE ASSESSMENT CONDUCTED PURSUANT TO A HAZARD 834
ASSESSMENT AS SPECIFIED IN RULES ADOPTED UNDER SECTION 3753.02 OF 836
THE REVISED CODE IS LESS THAN THE DISTANCE TO ANY PUBLIC 838
RECEPTOR;
(3) EMERGENCY RESPONSE PROCEDURES HAVE BEEN COORDINATED 840
BETWEEN THE STATIONARY SOURCE AND LOCAL EMERGENCY PLANNING AND 841
RESPONSE ORGANIZATIONS. 842
(C) THE OWNER OR OPERATOR OF A STATIONARY SOURCE AT WHICH 845
A COVERED PROCESS IS PRESENT IS SUBJECT TO PROGRAM 2 REQUIREMENTS 846
ESTABLISHED UNDER DIVISION (F) OF THIS SECTION IF THE COVERED 848
PROCESS DOES NOT MEET THE CONDITIONS ESTABLISHED UNDER DIVISION 849
(B) OR (D) OF THIS SECTION. 850
(D) THE OWNER OR OPERATOR OF A STATIONARY SOURCE AT WHICH 853
A COVERED PROCESS IS PRESENT IS SUBJECT TO PROGRAM 3 REQUIREMENTS 854
ESTABLISHED UNDER DIVISION (G) OF THIS SECTION IF THE COVERED 856
PROCESS DOES NOT MEET THE CONDITIONS ESTABLISHED UNDER DIVISION 857
(B) OF THIS SECTION AND EITHER OF THE FOLLOWING CONDITIONS IS 859
MET:
(1) THE PROCESS IS IN STANDARD INDUSTRIAL CLASSIFICATION 861
CODE 2611, 2812, 2819, 2821, 2865, 2869, 2873, 2879, OR 2911; 863
(2) THE PROCESS IS SUBJECT TO THE UNITED STATES 865
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION SAFETY MANAGEMENT 866
STANDARD UNDER 29 C.F.R. 1910.119. 868
(E) THE OWNER OR OPERATOR OF A STATIONARY SOURCE AT WHICH 871
ONE OR MORE COVERED PROCESSES ARE PRESENT THAT MEET THE 872
CONDITIONS ESTABLISHED UNDER DIVISION (B) OF THIS SECTION SHALL 874
COMPLY WITH ALL OF THE FOLLOWING PROGRAM 1 REQUIREMENTS:
(1) SUBMIT WITH THE RISK MANAGEMENT PLAN AN ANALYSIS OF 876
20
THE WORST CASE RELEASE SCENARIO FOR EACH COVERED PROCESS AND 877
DOCUMENTATION THAT THE NEAREST PUBLIC RECEPTOR IS BEYOND THE 878
DISTANCE TO A TOXIC OR FLAMMABLE ENDPOINT; 879
(2) SUBMIT WITH THE RISK MANAGEMENT PLAN A FIVE-YEAR 881
ACCIDENT HISTORY FOR THE PROCESS; 882
(3) ENSURE THAT RESPONSE ACTIONS HAVE BEEN COORDINATED 884
WITH LOCAL EMERGENCY PLANNING AND RESPONSE AGENCIES; 885
(4) CERTIFY IN THE RISK MANAGEMENT PLAN THAT "BASED UPON 888
CRITERIA IN RULES ADOPTED BY THE DIRECTOR OF ENVIRONMENTAL 891
PROTECTION UNDER SECTION 3753.02 OF THE REVISED CODE, THE 893
DISTANCE TO THE SPECIFIED ENDPOINT FOR THE WORST CASE RELEASE 894
SCENARIO FOR THE FOLLOWING PROCESS(ES) IS LESS THAN THE DISTANCE 895
TO THE NEAREST PUBLIC RECEPTOR: (LIST PROCESSES). WITHIN THE 896
PAST FIVE YEARS, THE PROCESS(ES) HAS (HAVE) HAD NO ACCIDENTAL 897
RELEASE THAT CAUSED OFF-SITE IMPACTS AS DESCRIBED IN RULES 898
ADOPTED BY THE DIRECTOR UNDER SECTION 3753.02 OF THE REVISED 901
CODE. NO ADDITIONAL MEASURES ARE NECESSARY TO PREVENT OFF-SITE 902
IMPACTS FROM ACCIDENTAL RELEASES. IN THE EVENT OF FIRE, 903
EXPLOSION, OR A RELEASE OF A REGULATED SUBSTANCE FROM THE 904
PROCESS(ES), ENTRY WITHIN THE DISTANCE TO THE SPECIFIED ENDPOINTS 905
MAY POSE A DANGER TO PUBLIC EMERGENCY RESPONDERS. THEREFORE, 906
PUBLIC EMERGENCY RESPONDERS SHOULD NOT ENTER THIS AREA EXCEPT AS 907
ARRANGED WITH THE EMERGENCY CONTACT INDICATED IN THE RISK 908
MANAGEMENT PLAN. THE UNDERSIGNED CERTIFIES THAT, TO THE BEST OF 909
MY KNOWLEDGE, THE INFORMATION SUBMITTED IS TRUE, ACCURATE, AND 910
COMPLETE. (SIGNATURE, TITLE, DATE SIGNED)" 911
(F) THE OWNER OR OPERATOR OF A STATIONARY SOURCE AT WHICH 914
ONE OR MORE COVERED PROCESSES ARE PRESENT THAT MEET THE 915
CONDITIONS ESTABLISHED UNDER DIVISION (C) OF THIS SECTION SHALL 916
COMPLY WITH ALL OF THE FOLLOWING PROGRAM 2 REQUIREMENTS: 917
(1) DEVELOP AND IMPLEMENT A MANAGEMENT SYSTEM IN 919
ACCORDANCE WITH RULES ADOPTED UNDER SECTION 3753.02 OF THE 921
REVISED CODE; 922
(2) CONDUCT A HAZARD ASSESSMENT IN ACCORDANCE WITH RULES 924
21
ADOPTED UNDER SECTION 3753.02 OF THE REVISED CODE; 927
(3) IMPLEMENT PROGRAM 2 PREVENTION REQUIREMENTS OR 929
IMPLEMENT PROGRAM 3 PREVENTION REQUIREMENTS IN ACCORDANCE WITH 930
RULES ADOPTED UNDER SECTION 3753.02 OF THE REVISED CODE; 933
(4) SUBMIT AS PART OF THE RISK MANAGEMENT PLAN INFORMATION 935
ON PREVENTION PROGRAM ELEMENTS FOR COVERED PROCESSES THAT ARE 936
SUBJECT TO PROGRAM 2 REQUIREMENTS; 937
(5) DEVELOP AND IMPLEMENT AN EMERGENCY RESPONSE PROGRAM IN 940
ACCORDANCE WITH RULES ADOPTED UNDER SECTION 3753.02 OF THE 941
REVISED CODE.
(G) THE OWNER OR OPERATOR OF A STATIONARY SOURCE AT WHICH 945
ONE OR MORE COVERED PROCESSES ARE PRESENT THAT MEET THE 946
CONDITIONS ESTABLISHED UNDER DIVISION (D) OF THIS SECTION SHALL 947
COMPLY WITH ALL OF THE FOLLOWING PROGRAM 3 REQUIREMENTS: 948
(1) DEVELOP AND IMPLEMENT A MANAGEMENT SYSTEM IN 950
ACCORDANCE WITH RULES ADOPTED UNDER SECTION 3753.02 OF THE 952
REVISED CODE; 953
(2) CONDUCT A HAZARD ASSESSMENT IN ACCORDANCE WITH RULES 955
ADOPTED UNDER SECTION 3753.02 OF THE REVISED CODE; 958
(3) IMPLEMENT PROGRAM 3 PREVENTION REQUIREMENTS IN 960
ACCORDANCE WITH RULES ADOPTED UNDER SECTION 3753.02 OF THE 962
REVISED CODE; 963
(4) SUBMIT AS PART OF THE RISK MANAGEMENT PLAN INFORMATION 965
ON PREVENTION PROGRAM ELEMENTS FOR COVERED PROCESSES THAT ARE 966
SUBJECT TO PROGRAM 3 REQUIREMENTS; 967
(5) DEVELOP AND IMPLEMENT AN EMERGENCY RESPONSE PROGRAM IN 970
ACCORDANCE WITH RULES ADOPTED UNDER SECTION 3753.02 OF THE 971
REVISED CODE.
(H) IF AT ANY TIME A COVERED PROCESS AT A STATIONARY 974
SOURCE NO LONGER MEETS THE CONDITIONS ESTABLISHED UNDER THIS 975
SECTION FOR ITS PROGRAM LEVEL, THE OWNER OR OPERATOR SHALL COMPLY 976
WITH THE REQUIREMENTS OF THE NEW PROGRAM LEVEL THAT APPLIES TO 977
THE COVERED PROCESS AND SHALL UPDATE THE RISK MANAGEMENT PLAN AND 978
INFORMATION SUBMITTED WITH IT NOT LATER THAN SIX MONTHS AFTER THE 979
22
CHANGE IN COMPLIANCE WITH THIS CHAPTER AND RULES ADOPTED UNDER 980
IT.
Sec. 3753.05. (A) AN OWNER OR OPERATOR WHO IS REQUIRED TO 982
SUBMIT A RISK MANAGEMENT PLAN SHALL PAY ANNUALLY TO THE 983
ENVIRONMENTAL PROTECTION AGENCY A FEE OF FIFTY DOLLARS TOGETHER 984
WITH ANY OF THE FOLLOWING APPLICABLE FEES: 985
(1) A FEE OF SIXTY-FIVE DOLLARS IF A COVERED PROCESS IN 987
THE STATIONARY SOURCE INCLUDES PROPANE AND PROPANE IS THE ONLY 988
REGULATED SUBSTANCE AT THE STATIONARY SOURCE OVER THE THRESHOLD 989
QUANTITY; 990
(2) A FEE OF SIXTY-FIVE DOLLARS IF A COVERED PROCESS IN 992
THE STATIONARY SOURCE INCLUDES ANHYDROUS AMMONIA THAT IS SOLD FOR 994
USE AS AN AGRICULTURAL NUTRIENT AND IS ON-SITE OVER THE THRESHOLD 995
QUANTITY;
(3) A FEE OF TWO HUNDRED DOLLARS FOR EACH REGULATED 997
SUBSTANCE OVER THE THRESHOLD QUANTITY. PROPANE SHALL BE 998
CONSIDERED A REGULATED SUBSTANCE SUBJECT TO THE FEE LEVIED UNDER 999
DIVISION (A)(3) OF THIS SECTION ONLY IF IT IS NOT THE ONLY 1,001
REGULATED SUBSTANCE OVER THE THRESHOLD QUANTITY. ANHYDROUS 1,002
AMMONIA SHALL BE CONSIDERED A REGULATED SUBSTANCE SUBJECT TO THE 1,003
FEE LEVIED UNDER DIVISION (A)(3) OF THIS SECTION ONLY IF IT IS 1,005
NOT SOLD FOR USE AS AN AGRICULTURAL NUTRIENT.
(B) IN ACCORDANCE WITH RULES ADOPTED UNDER SECTION 3753.02 1,008
OF THE REVISED CODE, THE FEES ASSESSED UNDER DIVISION (A) OF THIS 1,011
SECTION SHALL BE COLLECTED FOR THE YEAR 1999 NO LATER THAN JUNE 1,013
21, 1999. THEREAFTER, THE FEES SHALL BE COLLECTED NO LATER THAN 1,014
THE FIRST DAY OF SEPTEMBER OF EACH YEAR. THE FEES ASSESSED UNDER 1,016
DIVISION (A) OF THIS SECTION FOR A STATIONARY SOURCE SHALL BE 1,018
BASED UPON THE REGULATED SUBSTANCES PRESENT OVER THE THRESHOLD 1,019
QUANTITY IDENTIFIED IN THE RISK MANAGEMENT PLAN ON FILE FOR 1,020
CALENDAR YEAR 1999 AS OF THE TWENTY-FIRST DAY OF JUNE AND FOR 1,021
EACH SUBSEQUENT CALENDAR YEAR AS OF THE FIRST DAY OF SEPTEMBER. 1,022
(C) AN OWNER OR OPERATOR WHO IS REQUIRED TO SUBMIT A RISK 1,026
MANAGEMENT PLAN AND WHO FAILS TO SUBMIT SUCH A PLAN WITHIN THIRTY 1,027
23
DAYS AFTER THE APPLICABLE FILING DATE PRESCRIBED IN SECTION 1,028
3753.03 OF THE REVISED CODE SHALL SUBMIT WITH THE RISK MANAGEMENT 1,030
PLAN A LATE FILING FEE OF FIFTEEN PER CENT OF THE TOTAL FEES DUE 1,031
UNDER DIVISION (A) OF THIS SECTION. 1,032
(D) THE DIRECTOR OF ENVIRONMENTAL PROTECTION MAY ESTABLISH 1,035
FEES TO BE PAID BY PERSONS, OTHER THAN PUBLIC OFFICERS OR 1,036
EMPLOYEES, TO COVER THE COSTS OF OBTAINING COPIES OF DOCUMENTS OR 1,037
INFORMATION SUBMITTED TO THE DIRECTOR UNDER THIS CHAPTER AND 1,038
RULES ADOPTED UNDER IT. THE DIRECTOR MAY CHARGE THE ACTUAL COSTS 1,039
INVOLVED IN ACCESSING ANY COMPUTERIZED DATA BASE ESTABLISHED OR 1,040
USED FOR THE PURPOSES OF ASSISTING IN THE ADMINISTRATION OF THIS 1,041
CHAPTER.
(E) ALL MONEYS RECEIVED BY THE AGENCY UNDER DIVISIONS (A), 1,044
(C), AND (D) OF THIS SECTION SHALL BE TRANSMITTED TO THE 1,046
TREASURER OF STATE TO BE CREDITED TO THE RISK MANAGEMENT PLAN 1,047
REPORTING FUND, WHICH IS HEREBY CREATED IN THE STATE TREASURY. 1,048
THE FUND SHALL BE ADMINISTERED BY THE DIRECTOR AND USED 1,049
EXCLUSIVELY FOR THE ADMINISTRATION AND ENFORCEMENT OF THIS 1,050
CHAPTER AND RULES ADOPTED UNDER IT. 1,051
(F) BEGINNING IN FISCAL YEAR 2001, AND EVERY TWO YEARS 1,054
THEREAFTER, THE DIRECTOR SHALL REVIEW THE TOTAL AMOUNT OF MONEYS 1,055
IN THE RISK MANAGEMENT PLAN REPORTING FUND TO DETERMINE IF THAT 1,057
AMOUNT EXCEEDS SEVEN HUNDRED FIFTY THOUSAND DOLLARS IN EITHER OF 1,058
THE TWO PRECEDING FISCAL YEARS. IF THE TOTAL AMOUNT OF MONEYS IN 1,059
THE FUND EXCEEDED SEVEN HUNDRED FIFTY THOUSAND DOLLARS IN EITHER 1,060
FISCAL YEAR, THE DIRECTOR, AFTER REVIEW OF THE FEE STRUCTURE AND 1,062
CONSULTATION WITH AFFECTED PERSONS, SHALL ISSUE AN ORDER REDUCING 1,063
THE AMOUNT OF THE FEES LEVIED UNDER DIVISION (A) OF THIS SECTION 1,065
SO THAT THE ESTIMATED AMOUNT OF MONEYS RESULTING FROM THE FEES 1,066
WILL NOT EXCEED SEVEN HUNDRED FIFTY THOUSAND DOLLARS IN ANY 1,067
FISCAL YEAR.
IF, UPON REVIEW OF THE FEES UNDER THIS DIVISION AND AFTER 1,069
THE FEES HAVE BEEN REDUCED, THE DIRECTOR DETERMINES THAT THE 1,071
TOTAL AMOUNT OF MONEYS COLLECTED AND ACCUMULATED IS LESS THAN 1,072
24
SEVEN HUNDRED FIFTY THOUSAND DOLLARS, THE DIRECTOR, AFTER REVIEW 1,073
OF THE FEE STRUCTURE AND CONSULTATION WITH AFFECTED PERSONS, MAY 1,074
ISSUE AN ORDER INCREASING THE AMOUNT OF THE FEES LEVIED UNDER 1,075
DIVISION (A) OF THIS SECTION SO THAT THE ESTIMATED AMOUNT OF 1,077
MONEYS RESULTING FROM THE FEES WILL BE APPROXIMATELY SEVEN 1,078
HUNDRED FIFTY THOUSAND DOLLARS. FEES SHALL NEVER BE INCREASD TO 1,079
AN AMOUNT EXCEEDING THE AMOUNT SPECIFIED IN DIVISION (A) OF THIS 1,080
SECTION.
NOTWITHSTANDING SECTION 119.06 OF THE REVISED CODE, THE 1,083
DIRECTOR MAY ISSUE AN ORDER UNDER THIS DIVISION WITHOUT THE 1,084
NECESSITY TO HOLD AN ADJUDICATORY HEARING IN CONNECTION WITH THE 1,085
ORDER. THE ISSUANCE OF AN ORDER UNDER THIS DIVISION IS NOT AN 1,086
ACT OR ACTION FOR PURPOSES OF SECTION 3745.04 OF THE REVISED 1,088
CODE.
Sec. 3753.06. NO PERSON SHALL VIOLATE ANY SECTION OF THIS 1,091
CHAPTER OR A RULE ADOPTED OR ORDER ISSUED UNDER IT.
Sec. 3753.07. THE DIRECTOR OF ENVIRONMENTAL PROTECTION OR 1,094
THE DIRECTOR'S AUTHORIZED REPRESENTATIVE, UPON PROPER
IDENTIFICATION AND UPON STATING THE PURPOSE AND NECESSITY OF AN 1,095
INSPECTION, MAY ENTER AT REASONABLE TIMES UPON ANY PRIVATE OR 1,096
PUBLIC PROPERTY, REAL OR PERSONAL, TO INSPECT, INVESTIGATE, 1,097
OBTAIN SAMPLES, AND EXAMINE AND COPY RECORDS TO DETERMINE 1,098
COMPLIANCE WITH THIS CHAPTER AND RULES ADOPTED OR ORDERS ISSUED 1,099
UNDER IT. THE DIRECTOR OR THE DIRECTOR'S AUTHORIZED 1,100
REPRESENTATIVE MAY APPLY FOR, AND ANY JUDGE OF A COURT OF RECORD 1,101
MAY ISSUE FOR USE WITHIN THE COURT'S TERRITORIAL JURISDICTION, AN 1,103
ADMINISTRATIVE INSPECTION WARRANT UNDER DIVISION (F) OF SECTION 1,104
2933.21 OF THE REVISED CODE OR OTHER APPROPRIATE SEARCH WARRANT 1,107
NECESSARY TO ACHIEVE THE PURPOSES OF THIS CHAPTER AND RULES 1,108
ADOPTED OR ORDERS ISSUED UNDER IT.
Sec. 3753.08. THE DIRECTOR OF ENVIRONMENTAL PROTECTION MAY 1,111
ISSUE ORDERS REQUIRING AN OWNER OR OPERATOR WHO IS SUBJECT TO 1,112
THIS CHAPTER TO ABATE A VIOLATION OF SECTION 3753.06 OF THE 1,113
REVISED CODE. THE DIRECTOR MAY ISSUE SUCH ORDERS AS FINAL ORDERS 1,114
25
WITHOUT ISSUING A PROPOSED ACTION UNDER SECTION 3745.07 OF THE 1,116
REVISED CODE AND, NOTWITHSTANDING SECTION 119.06 OF THE REVISED 1,119
CODE, WITHOUT THE NECESSITY TO HOLD AN ADJUDICATION HEARING. 1,120
ISSUANCE OF AN ORDER UNDER THIS SECTION IS NOT A CONDITION 1,121
PRECEDENT TO BRINGING ANY CIVIL OR CRIMINAL ACTION UNDER THIS 1,122
CHAPTER.
Sec. 3753.09. (A) THE ATTORNEY GENERAL OR THE PROSECUTING 1,125
ATTORNEY OF THE COUNTY OR DIRECTOR OF LAW OF THE CITY WHERE A 1,126
VIOLATION HAS OCCURRED OR IS OCCURRING, UPON WRITTEN REQUEST OF 1,127
THE DIRECTOR OF ENVIRONMENTAL PROTECTION, SHALL PROSECUTE TO 1,128
TERMINATION ANY PERSON WHO HAS VIOLATED DIVISION (D) OF SECTION 1,130
3753.03 OF THE REVISED CODE OR SHALL BRING AN ACTION FOR 1,132
INJUNCTION AGAINST ANY PERSON WHO HAS VIOLATED OR IS VIOLATING 1,133
SECTION 3753.06 OF THE REVISED CODE. THE COURT OF COMMON PLEAS 1,134
IN WHICH AN ACTION FOR INJUNCTION IS FILED HAS THE JURISDICTION 1,136
TO AND SHALL GRANT PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF 1,137
UPON A SHOWING THAT THE PERSON AGAINST WHOM THE ACTION IS BROUGHT 1,138
HAS VIOLATED OR IS VIOLATING SECTION 3753.06 OF THE REVISED CODE.
THE COURT SHALL GIVE PRECEDENCE TO SUCH AN ACTION OVER ALL OTHER 1,140
CASES.
(B) WHOEVER VIOLATES SECTION 3753.06 OF THE REVISED CODE 1,144
SHALL PAY A CIVIL PENALTY OF NOT MORE THAN TWENTY-FIVE THOUSAND 1,145
DOLLARS FOR EACH DAY OF EACH VIOLATION. THE ATTORNEY GENERAL OR 1,146
THE PROSECUTING ATTORNEY OF THE COUNTY OR DIRECTOR OF LAW OF THE 1,147
CITY WHERE A VIOLATION OF THAT SECTION HAS OCCURRED OR IS 1,148
OCCURRING, UPON WRITTEN REQUEST OF THE DIRECTOR, SHALL BRING AN 1,149
ACTION FOR THE IMPOSITION OF A CIVIL PENALTY UNDER THIS DIVISION 1,150
AGAINST ANY PERSON WHO HAS COMMITTED OR IS COMMITTING ANY SUCH 1,151
VIOLATION. MONEYS RESULTING FROM CIVIL PENALTIES IMPOSED UNDER
THIS DIVISION SHALL BE CREDITED TO THE RISK MANAGEMENT PLAN 1,152
REPORTING FUND CREATED IN SECTION 3753.05 OF THE REVISED CODE. 1,154
(C) UPON THE CERTIFIED WRITTEN REQUEST OF ANY PERSON, THE 1,156
DIRECTOR SHALL CONDUCT INVESTIGATIONS AND MAKE INQUIRIES THAT ARE 1,157
NECESSARY TO SECURE COMPLIANCE WITH THIS CHAPTER OR RULES ADOPTED 1,159
26
OR ORDERS ISSUED UNDER IT. THE DIRECTOR, UPON REQUEST OR UPON 1,160
THE DIRECTOR'S OWN INITIATIVE, MAY INVESTIGATE OR MAKE INQUIRIES 1,161
INTO ANY VIOLATION OF THIS CHAPTER OR RULES ADOPTED OR ORDERS 1,162
ISSUED UNDER IT.
Sec. 3753.10. (A) AS USED IN THIS SECTION: 1,164
(1) "HARM" MEANS INJURY TO, DEATH OF, OR LOSS TO PERSON OR 1,166
PROPERTY. 1,167
(2) "TORT ACTION" MEANS A CIVIL ACTION FOR DAMAGES FOR 1,169
HARM, BUT DOES NOT INCLUDE A CIVIL ACTION FOR DAMAGES FOR A 1,170
BREACH OF CONTRACT OR OTHER AGREEMENT BETWEEN PERSONS OR FOR A 1,171
BREACH OF A WARRANTY THAT EXISTS PURSUANT TO THE REVISED CODE OR 1,173
THE COMMON LAW OF THIS STATE. 1,174
(B) THE STATE, AND ANY OFFICER OR EMPLOYEE OF THE STATE AS 1,177
DEFINED IN SECTION 109.36 OF THE REVISED CODE, IS NOT LIABLE IN A 1,178
TORT ACTION WHEN THE STATE INSPECTS, INVESTIGATES, REVIEWS, OR 1,179
ACCEPTS A RISK MANAGEMENT PLAN FROM AN OWNER OR OPERATOR WHO IS 1,180
SUBJECT TO THIS CHAPTER UNLESS AN ACTION OR OMISSION OF THE 1,182
STATE, OR OF AN OFFICER OR EMPLOYEE OF THE STATE, CONSTITUTES 1,183
WILLFUL OR WANTON MISCONDUCT OR INTENTIONALLY TORTUOUS CONDUCT. 1,184
ANY ACTION BROUGHT AGAINST THE STATE UNDER THIS DIVISION SHALL BE 1,185
BROUGHT IN THE COURT OF CLAIMS.
(C)(1) THIS SECTION DOES NOT CREATE, AND SHALL NOT BE 1,188
CONSTRUED AS CREATING, A NEW CAUSE OF ACTION AGAINST OR 1,189
SUBSTANTIVE LEGAL RIGHT AGAINST THE STATE OR AN OFFICER OR 1,190
EMPLOYEE OF THE STATE.
(2) THIS SECTION DOES NOT AFFECT, AND SHALL NOT BE 1,192
CONSTRUED AS AFFECTING, ANY IMMUNITIES FROM CIVIL LIABILITY OR 1,193
DEFENSES ESTABLISHED BY THE REVISED CODE, THE UNITED STATES 1,197
CONSTITUTION, OR THE OHIO CONSTITUTION OR AVAILABLE AT COMMON LAW 1,198
TO WHICH THIS STATE, OR AN OFFICER OR EMPLOYEE OF THE STATE, MAY 1,199
BE ENTITLED UNDER CIRCUMSTANCES NOT COVERED BY THIS SECTION. 1,200
(3) SECTION 9.86 OF THE REVISED CODE DOES NOT APPLY TO AN 1,203
OFFICER OR EMPLOYEE OF THE STATE IF THE OFFICER OR EMPLOYEE IS 1,204
PERFORMING WORK IN CONNECTION WITH INSPECTING, INVESTIGATING, 1,205
27
REVIEWING, OR ACCEPTING A RISK MANAGEMENT PLAN FROM AN OWNER OR 1,206
OPERATOR WHO IS SUBJECT TO THIS CHAPTER AT THE TIME THAT THE 1,208
OFFICER OR EMPLOYEE ALLEGEDLY CAUSED THE HARM OR CAUSED OR 1,209
CONTRIBUTED TO THE PRESENCE OR RELEASE OF TOXIC OR FLAMMABLE 1,210
SUBSTANCES FOR WHICH DAMAGES ARE SOUGHT IN A TORT ACTION. IN THE 1,211
ALTERNATIVE, THE IMMUNITIES CONFERRED BY DIVISION (B) OF THIS 1,212
SECTION APPLY TO THAT INDIVIDUAL.
Sec. 3753.99. WHOEVER PURPOSELY VIOLATES DIVISION (D) OF 1,215
SECTION 3753.03 OF THE REVISED CODE SHALL BE FINED NOT MORE THAN 1,217
TWENTY THOUSAND DOLLARS AND IMPRISONED FOR NOT MORE THAN ONE 1,218
YEAR, OR BOTH. EACH DAY OF VIOLATION IS A SEPARATE OFFENSE.
Section 2. That existing sections 3745.70, 3745.71, 1,220
3745.72, and 3745.73 of the Revised Code are hereby repealed. 1,221