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           

                                                          3      

                                                                 
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          

                                                          4      

                                                                 
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          

                                                          5      

                                                                 
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          

                                                          6      

                                                                 
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          

                                                          7      

                                                                 
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                  

                                                          8      

                                                                 
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          

                                                          9      

                                                                 
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          

                                                          11     

                                                                 
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          

                                                          12     

                                                                 
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          

                                                          15     

                                                                 
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