As Passed by the House                        1            

122nd General Assembly                                             4            

   Regular Session                         Am. Sub. S. B. No. 219  5            

      1997-1998                                                    6            


          SENATORS GARDNER-CUPP-KEARNS-SUHADOLNIK-NEIN-            8            

                     REPRESENTATIVE JACOBSON                       9            


                                                                   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        17           

                related to that regulated substance, to establish  18           

                the requirements of the risk management program,   19           

                and to revise the statutes  relating to            20           

                environmental audits.                              21           




BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:        23           

      Section 1.  That sections 3745.70, 3745.71, 3745.72, and     25           

3745.73 be amended and sections 3745.74, 3753.01, 3753.02,         26           

3753.03, 3753.04, 3753.05, 3753.06, 3753.07, 3753.08, 3753.09,     27           

3753.10, and 3753.99 of the Revised Code be enacted to read as     28           

follows:                                                                        

      Sec. 3745.70.  As used in sections 3745.70 to 3745.73 of     38           

the Revised Code:                                                               

      (A)  "Environmental audit" means a voluntary, thorough, and  41           

discrete self-evaluation of one or more activities at one or more  42           

facilities or properties that is documented; is designed to        43           

improve compliance, or identify, correct, or prevent               45           

noncompliance, with environmental laws; and is conducted by the                 

owner or operator of a facility or property or the owner OWNER'S   46           

or operator's employee or independent contractor.  An              48           

                                                          2      

                                                                 
environmental audit may be conducted by the owner or operator of   49           

a facility or property, the owner's or operator's employees, or    50           

independent contractors.  ONCE INITIATED, AN AUDIT SHALL BE        51           

COMPLETED WITHIN A REASONABLE TIME, NOT TO EXCEED SIX MONTHS,      52           

UNLESS A WRITTEN REQUEST FOR AN EXTENSION IS APPROVED BY THE HEAD  53           

OFFICER OF THE GOVERNMENTAL AGENCY, OR DIVISION OR OFFICE          54           

THEREOF, WITH JURISDICTION OVER THE ACTIVITIES BEING AUDITED       55           

BASED ON A SHOWING OF REASONABLE GROUNDS.  AN AUDIT SHALL NOT BE   56           

CONSIDERED TO BE INITIATED UNTIL THE OWNER OR OPERATOR OR THE      57           

OWNER'S OR OPERATOR'S EMPLOYEE OR INDEPENDENT CONTRACTOR ACTIVELY  58           

HAS BEGUN THE SELF-EVALUATION OF ENVIRONMENTAL COMPLIANCE.         59           

      (B)  "Activity" means any process, procedure, or function    61           

that is subject to environmental laws.                             62           

      (C)  "Voluntary" means, with respect to an environmental     64           

audit of a particular activity, that all BOTH of the following     65           

apply when the audit of that activity commences:                   67           

      (1)  The audit is not required by law, prior litigation, or  69           

an order by a court or a government agency;                        70           

      (2)  The owner or operator who conducts the audit does not   73           

know or have reason to know that a government agency has           74           

commenced an investigation or enforcement action that concerns a   75           

violation of environmental laws involving the activity or that     76           

such an investigation or enforcement action is imminent.           77           

      (D)  "Environmental audit report" means interim or final     80           

data, documents, records, or plans that are necessary to an        81           

environmental audit and are collected, developed, made, and                     

maintained in good faith as part of the audit, and may include,    83           

without limitation:                                                             

      (1)  Analytical data, laboratory reports, field notes and    86           

records of observations, findings, opinions, suggestions,          87           

conclusions, drafts, memoranda, drawings, photographs,             88           

computer-generated or electronically recorded information, maps,   89           

charts, graphs, and surveys;                                       90           

      (2)  Reports that describe the scope, objectives, and        92           

                                                          3      

                                                                 
methods of the environmental audit, audit management policies,     93           

the information gained by the environmental audit, and             94           

conclusions and recommendations together with exhibits and         95           

appendices;                                                                     

      (3)  Memoranda, documents, records, and plans analyzing the  98           

environmental audit report or discussing implementation,                        

prevention, compliance, and remediation issues associated with     99           

the environmental audit.                                                        

      "Environmental audit report" does not mean corrective or     101          

remedial action taken pursuant to an environmental audit.          102          

      (E)  "Environmental laws" means sections 1511.02 and         105          

1531.29, Chapters 3704., 3734., 3745., 3746., 3750., 3751.,        106          

3752., 6109., and 6111. of the Revised Code, and any other         107          

sections or chapters of the Revised Code the principal purpose of  108          

which is environmental protection; any federal or local            110          

counterparts or extensions of those sections or chapters; rules    111          

adopted under any such sections, chapters, counterparts, or                     

extensions; and terms and conditions of orders, permits,           112          

licenses, license renewals, variances, exemptions, or plan         113          

approvals issued under such sections, chapters, counterparts, or   114          

extensions.                                                                     

      Sec. 3745.71.  (A)  The EXCEPT AS OTHERWISE PROVIDED IN      123          

DIVISION (C) OF THIS SECTION, THE owner or operator of a facility  124          

or property who conducts an environmental audit of one or more     126          

activities at the facility or property has a privilege with        127          

respect to both of the following:                                               

      (1)  The contents of an environmental audit report that is   129          

based on the audit;                                                130          

      (2)  The contents of communications between the owner or     132          

operator and employees or contractors of the owner or operator,    133          

or among employees or contractors of the owner or operator, that   134          

are necessary to the audit and are made in good faith as part of   135          

the audit after the employee or contractor is notified that the    136          

communication is part of the audit.                                             

                                                          4      

                                                                 
      (B)  Except as otherwise provided in or ordered pursuant to  139          

this section, information that is privileged under this section    140          

is not admissible as evidence or subject to discovery in any                    

criminal, civil, or administrative proceeding and a person who     141          

possesses such information as a result of conducting or            143          

participating in an environmental audit shall not BE COMPELLED TO  144          

testify in any criminal, civil, or administrative proceeding       145          

concerning the contents PRIVILEGED PORTIONS of that information    147          

THE ENVIRONMENTAL AUDIT.                                                        

      (C)  The PRIVILEGE PROVIDED IN THIS SECTION DOES NOT APPLY   149          

TO CRIMINAL INVESTIGATIONS OR PROCEEDINGS.  WHERE AN AUDIT REPORT  150          

IS OBTAINED, REVIEWED, OR USED IN A CRIMINAL PROCEEDING, THE       151          

PRIVILEGE PROVIDED IN THIS SECTION APPLICABLE TO CIVIL OR          152          

ADMINISTRATIVE PROCEEDINGS IS NOT WAIVED OR ELIMINATED.            153          

FURTHERMORE, THE privilege provided in this section does not       155          

apply to particular information under any of the following         156          

circumstances:                                                                  

      (1)  The privilege is not asserted with respect to that      158          

information by the owner or operator to whom the privilege         159          

belongs.                                                                        

      (2)  The owner or operator to whom the privilege belongs     161          

voluntarily testifies, or has provided written authorization to    163          

an employee, contractor, or agent to testify on behalf of the      164          

owner or operator, as to that information.                         165          

      (3)  A court of record in a criminal or civil proceeding or  167          

the tribunal or presiding officer in an administrative proceeding  169          

finds, pursuant to this section, that the privilege does not       170          

apply to that information.                                                      

      (4)  The information is required by law to be collected,     172          

developed, maintained, reported, DISCLOSED PUBLICLY, or otherwise  173          

made available to a government agency.                             174          

      (5)  The information is obtained from a source other than    176          

an environmental audit report, including, without limitation,      177          

observation, sampling, monitoring, a communication, a record, or   178          

                                                          5      

                                                                 
a report that is not part of the audit on which the audit report   180          

is based.                                                                       

      (6)  The information is collected, developed, made, or       182          

maintained in bad faith or for a fraudulent purpose.               183          

      (7)  The owner or operator to whom the privilege belongs     185          

waives the privilege, in whole or in part, explicitly or by        186          

engaging in conduct that manifests a clear intent that the         187          

information not be privileged.  If an owner or operator            188          

introduces part of an environmental audit report into evidence in  189          

a civil, criminal, or administrative proceeding to prove that the  192          

owner or operator did not violate, or is no longer violating, any               

environmental laws, the privilege provided by this section is      193          

waived with respect to all information in the audit report that    194          

is relevant to that issue.                                         195          

      (8)(a)  The information shows evidence of noncompliance      197          

with environmental laws and THE OWNER OR OPERATOR FAILS TO DO ANY  200          

OF THE FOLLOWING:                                                  201          

      (i)  PROMPTLY INITIATE reasonable efforts to achieve         204          

compliance with those laws are not initiated and pursued UPON      206          

DISCOVERY OF THE NONCOMPLIANCE THROUGH AN ENVIRONMENTAL AUDIT;     207          

      (ii)  PURSUE COMPLIANCE with reasonable diligence upon       210          

discovery through the environmental audit of noncompliance.        211          

"Reasonable;                                                                    

      (iii)  ACHIEVE COMPLIANCE WITHIN A REASONABLE TIME.          214          

      (b)  "REASONABLE diligence" includes, without limitation,    218          

compliance with section 3745.72 of the Revised Code.                            

      (9)  THE INFORMATION CONTAINS EVIDENCE THAT A GOVERNMENT     220          

AGENCY FEDERALLY AUTHORIZED, APPROVED, OR DELEGATED TO ENFORCE     221          

ENVIRONMENTAL LAWS HAS REASONABLE CAUSE TO BELIEVE IS NECESSARY    222          

TO PREVENT IMMINENT AND SUBSTANTIAL ENDANGERMENT OR HARM TO HUMAN  224          

HEALTH OR THE ENVIRONMENT.                                                      

      (10)  Any circumstance in which both of the following        226          

apply:                                                                          

      (a)  The information contains evidence regarding an alleged  228          

                                                          6      

                                                                 
violation of environmental laws and a government agency charged    229          

with enforcing any of those laws has a substantial need for the    230          

information to protect public health or safety or to prevent       231          

imminent and substantial harm to property or the environment;      233          

      (b)  The government agency is unable to obtain the           235          

substantial equivalent of the information by other means without   236          

unreasonable delay or expense.                                     237          

      (10)(11)  The information consists of personal knowledge of  240          

an individual who did not obtain that information as part of an    241          

environmental audit.                                                            

      (11)(12)  The information is not clearly identified as part  243          

of an environmental audit report.  For purposes of this section,   246          

clear identification of information as part of an environmental    247          

audit report includes, without limitation, either of the           248          

following:                                                                      

      (a)  The information is contained in a document and the      250          

front cover, THE first page, or a comparable part of the document  251          

is prominently labeled with "environmental audit report:           253          

privileged information" or substantially comparable language;      254          

      (b)  The information is contained in an electronic record    256          

and the record is programmed to display or print prominently       257          

"environmental audit report:  privileged information" or           258          

substantially comparable language before the privileged            259          

information is displayed or printed.                                            

      (13)  THE INFORMATION EXISTED PRIOR TO THE INITIATION OF     262          

THE ENVIRONMENTAL AUDIT UNDER DIVISION (A) OF SECTION 3745.70 OF   264          

THE REVISED CODE.                                                  265          

      (D)  If the privilege provided in this section belongs to    267          

an owner or operator who is not an individual, the privilege may   268          

be asserted or waived, in whole or in part, on behalf of the       269          

owner or operator only by an officer, manager, partner, or other   270          

comparable person who has a fiduciary relationship with the owner  271          

or operator and is authorized generally to act on behalf of the                 

owner or operator or is a person who is authorized specifically    272          

                                                          7      

                                                                 
to assert or waive the privilege.                                  273          

      (E)  A person asserting the privilege provided in this       275          

section has the burden of proving the applicability of the         276          

privilege by a preponderance of the evidence.  If a person         277          

seeking disclosure of information with respect to which a          278          

privilege is asserted under this section shows evidence of         279          

noncompliance with environmental laws pursuant to division (C)(8)  280          

of this section, the person asserting the privilege also has the   281          

burden of proving by a preponderance of the evidence that                       

reasonable efforts to achieve compliance with those laws were      282          

initiated PROMPTLY and THAT COMPLIANCE WAS pursued with            284          

reasonable diligence pursuant to that division AND ACHIEVED        285          

WITHIN A REASONABLE TIME.                                                       

      (F)(1)  When determining whether the privilege provided by   287          

this section applies to particular information, a court of record  288          

that is not acting pursuant to division (G) of this section, or    289          

the tribunal or presiding officer in an administrative             290          

proceeding, shall conduct an in camera review of the information   291          

in a manner consistent with applicable rules of procedure.         292          

      (G)(1)  The prosecuting attorney of a county or the          294          

attorney general, having probable cause to believe, based on       296          

information obtained from a source other than an environmental     297          

audit report, that a violation has been committed under            298          

environmental laws FOR WHICH A CIVIL OR ADMINISTRATIVE ACTION MAY  299          

BE INITIATED, may obtain information with respect to which a       300          

privilege is asserted under this section pursuant to a search                   

warrant, subpoena, or discovery under the Rules of Civil           301          

Procedure or the Rules of Criminal Procedure.  The prosecuting     303          

attorney or the attorney general immediately shall place the       304          

information under seal and shall not review or disclose its        305          

contents.                                                                       

      (2)  Not later than sixty days after receiving an            307          

environmental audit report under division (G)(1) of this section,  309          

the prosecuting attorney or the attorney general may file with     310          

                                                          8      

                                                                 
the court of common pleas of a county in which there is proper     312          

venue to prosecute BRING A CIVIL OR ADMINISTRATIVE ACTION          313          

PERTAINING TO the alleged violation a petition requesting an in    314          

camera hearing to determine if the information described in                     

division (G)(1) of this section is subject to disclosure under     315          

this section.  Failure to file such a petition shall cause the     316          

information to be released to the owner or operator to whom it     317          

belongs.                                                                        

      (3)  Upon the filing of a petition under division (G)(2) of  320          

this section, the court shall issue an order scheduling an in      321          

camera hearing, not later than forty-five days after the filing    322          

of the petition, to determine if any or all of the information     324          

described in division (G)(1) of this section is subject to         325          

disclosure under this section.  The order shall allow the          326          

prosecuting attorney or the attorney general to remove the seal    327          

from the report in order to review it and shall place appropriate  328          

limitations on distribution and review of the report to protect    329          

against unnecessary disclosure.                                    330          

      (4)  The prosecuting attorney or the attorney general may    332          

consult with government agencies regarding the contents of the     333          

report to prepare for the in camera hearing.  Information          335          

described in division (G)(1) of this section that is used by the   336          

prosecuting attorney or the attorney general to prepare for the                 

in camera hearing shall not be used by the prosecuting attorney,   337          

the attorney general, an employee or agent of either of them, or   339          

an agency described in division (G)(4) of this section in any      340          

investigation or proceeding against the respondent, and otherwise  341          

shall be kept confidential, unless the information is subject to   342          

disclosure under this section.                                                  

      (5)  The parties may stipulate that information contained    344          

in an environmental audit report is or is not subject to           345          

disclosure under this section.                                     346          

      (6)  If the court determines that information described in   349          

division (G)(1) of this section is subject to disclosure under     350          

                                                          9      

                                                                 
this section, the court shall compel disclosure under this         351          

section of only the information that is relevant to the                         

proceeding described in division (G)(1) of this section.           352          

      (H)  Nothing in this section affects the nature, scope, or   355          

application of any privilege of confidentiality or nondisclosure   356          

recognized under another section of the Revised Code or the        357          

common law of this state, including, without limitation, the work  358          

product doctrine and attorney-client privilege.                    359          

      (I)  The privilege provided by this section applies only to  361          

information and communications that are part of environmental      362          

audits conducted INITIATED AFTER MARCH 13, 1997, AND COMPLETED     363          

before January 1, 2001 2004, IN ACCORDANCE WITH THE TIME FRAMES    366          

SPECIFIED IN DIVISION (A) OF SECTION 3745.70 OF THE REVISED CODE.  369          

      Sec. 3745.72.  (A)  The owner or operator of a facility or   378          

property who conducts an environmental audit of the facility or    379          

property and promptly and voluntarily discloses information        380          

contained in or derived from an audit report that is based on the  381          

audit and concerns an alleged violation of environmental laws to   382          

the director of the state agency that has jurisdiction over the    383          

alleged violation is immune from any administrative and civil      386          

penalties for that THE SPECIFIC violation DISCLOSED, EXCEPT THAT   387          

WHERE THE DISCLOSED VIOLATION HAS RESULTED IN SIGNIFICANT          388          

ECONOMIC BENEFIT TO THE OWNER OR OPERATOR OF THE FACILITY OR       389          

PROPERTY, THERE IS NO IMMUNITY FOR THE ECONOMIC BENEFIT COMPONENT  390          

OF THE ADMINISTRATIVE AND CIVIL PENALTIES FOR THAT VIOLATION.  An  392          

owner or operator asserting entitlement to such immunity has the   394          

burden of proving that entitlement by a preponderance of the       395          

evidence.                                                                       

      (B)  For the purposes of this section, a disclosure of       397          

information is voluntary with respect to an alleged violation of   398          

environmental laws only if all of the following apply:             400          

      (1)  The disclosure is made promptly after the information   403          

is obtained through the environmental audit by the owner or                     

operator who conducts the environmental audit;                     404          

                                                          10     

                                                                 
      (2)  A reasonable, good faith effort is made to achieve      407          

compliance as quickly as practicable with environmental laws                    

applicable to the information disclosed;                           408          

      (3)  Compliance with environmental laws applicable to the    410          

information disclosed is achieved as quickly as practicable or     411          

within such period as is reasonably ordered by the director of     412          

the state agency that has jurisdiction over the alleged            413          

violation;                                                                      

      (4)  The owner or operator cooperates with the director of   416          

the state agency that has jurisdiction over the alleged violation  417          

in investigating the cause, nature, extent, and effects of the                  

noncompliance;                                                     418          

      (5)  The disclosure is not required by law, prior            420          

litigation, or an order by a court or a government agency;         421          

      (6)  The owner or operator who makes the disclosure does     423          

not know or have reason to know that a government agency charged   424          

with enforcing environmental laws has commenced an investigation   425          

or enforcement action that concerns a violation of such laws       426          

involving the activity.                                                         

      (C)  For the purposes of this section, a disclosure shall    428          

be in writing, dated, and hand delivered or sent by certified      429          

mail to the director of the state agency that has jurisdiction     430          

over the alleged violation, and shall contain all of the           431          

following in a printed letter attached to the front of the         432          

disclosure:                                                                     

      (1)  The name, address, and telephone number of the owner    434          

or operator making the disclosure;                                 435          

      (2)  The name, title, address, and telephone number of one   437          

or more persons associated with the owner or operator who may be   438          

contacted regarding the disclosure;                                439          

      (3)  A brief summary of the alleged violation of             441          

environmental laws, including, without limitation, the nature,     442          

date, and location of the alleged violation to the extent that     444          

the information is known by the owner or operator;                 445          

                                                          11     

                                                                 
      (4)  A statement that the information is part of an          447          

environmental audit report and is being disclosed under section    448          

3745.72 of the Revised Code in order to obtain the immunity        450          

provided by that section.                                                       

      (D)  This section does not provide immunity from the         452          

payment of damages for harm to persons, property, or the           453          

environment; the payment of reasonable costs incurred by a         454          

government agency in responding to a disclosure; or                456          

responsibility for the remediation or cleanup of environmental     457          

harm under environmental laws.                                                  

      (E)  The immunity provided by this section does not apply    460          

to the owner or operator of a facility or property who, within     461          

the previous year, made a disclosure under this section with       462          

respect to a particular activity and received immunity under this  463          

section with respect to that activity UNDER ANY OF THE FOLLOWING   465          

CIRCUMSTANCES:                                                                  

      (1)  WITHIN THE THREE-YEAR PERIOD PRIOR TO DISCLOSURE, THE   468          

OWNER OR OPERATOR OF A FACILITY OR PROPERTY HAS COMMITTED                       

SIGNIFICANT VIOLATIONS THAT CONSTITUTE A PATTERN OF CONTINUOUS OR  470          

REPEATED VIOLATIONS OF ENVIRONMENTAL LAWS, ENVIRONMENTAL RELATED                

SETTLEMENT AGREEMENTS, OR ENVIRONMENTAL RELATED JUDICIAL ORDERS    471          

AND THAT AROSE FROM SEPARATE AND DISTINCT EVENTS.  FOR THE         473          

PURPOSES OF DIVISION (E)(1) OF THIS SECTION, A PATTERN OF          475          

CONTINUOUS OR REPEATED VIOLATIONS ALSO MAY BE DEMONSTRATED BY      476          

MULTIPLE SETTLEMENT AGREEMENTS RELATED TO SUBSTANTIALLY THE SAME   477          

ALLEGED SIGNIFICANT VIOLATIONS THAT OCCURRED WITHIN THE            478          

THREE-YEAR PERIOD IMMEDIATELY PRIOR TO THE VOLUNTARY DISCLOSURE.   479          

DETERMINATION OF WHETHER A PERSON HAS A PATTERN OF CONTINUOUS OR   480          

REPEATED VIOLATIONS UNDER DIVISION (E)(1) OF THIS SECTION SHALL    481          

BE BASED ON THE COMPLIANCE HISTORY OF THE PROPERTY OR SPECIFIC     482          

FACILITY AT ISSUE.                                                 483          

      (2)  WITH RESPECT TO A SPECIFIC VIOLATION, THE VIOLATION     486          

RESULTED IN SERIOUS HARM OR IN IMMINENT AND SUBSTANTIAL            487          

ENDANGERMENT TO HUMAN HEALTH OR THE ENVIRONMENT.                   488          

                                                          12     

                                                                 
      (3)  WITH RESPECT TO A SPECIFIC VIOLATION, THE VIOLATION IS  491          

OF A SPECIFIC REQUIREMENT OF AN ADMINISTRATIVE OR JUDICIAL ORDER.  492          

      (F)  The immunity provided by this section applies only to   494          

disclosures made concerning environmental audits conducted         496          

INITIATED AFTER MARCH 13, 1997, AND COMPLETED before January 1,    497          

2001 2004, IN ACCORDANCE WITH THE TIME FRAMES SPECIFIED IN         499          

DIVISION (A) OF SECTION 3745.70 OF THE REVISED CODE.               502          

      (G)  The immunity provided by this section applies to a      504          

person who makes a good faith disclosure to a state agency under   505          

this section even though another state agency is determined to     506          

have jurisdiction over an alleged violation of environmental laws  507          

indicated in the disclosure.                                                    

      (H)  Each state agency that receives a disclosure under      510          

this section promptly shall record receipt of the disclosure,                   

determine whether it has jurisdiction over the alleged violation   511          

of environmental laws indicated in the disclosure, and, if it      512          

does not have such jurisdiction, deliver the disclosure documents  513          

to the director of a state agency that has jurisdiction over the   514          

alleged violation.  If a disclosure indicates alleged violations   515          

of environmental laws that are under the jurisdiction of more      516          

than one state agency, the state agency that first receives the    517          

disclosure and has jurisdiction over any of the alleged                         

violations promptly shall notify the director of each state        518          

agency that has jurisdiction over any of such alleged violations.  519          

The director of each state agency that receives a disclosure       520          

under this section, or is notified by another state agency that    521          

the director's agency has jurisdiction over an alleged violation   522          

of environmental laws indicated in the disclosure, promptly shall  523          

deliver written notice of that fact by certified mail to the       524          

owner or operator who made the disclosure.  The notice shall       525          

identify the state agency that sends the notice; state the name,   526          

title, address, and telephone number of a person in the agency                  

who WHOM the owner or operator may contact regarding the           527          

disclosure; and state the name, address, and telephone number of   529          

                                                          13     

                                                                 
the director of any other state agency notified about the          530          

disclosure because that agency has jurisdiction over an alleged    531          

violation of environmental laws indicated in the disclosure.                    

      Sec. 3745.73.  Not later than March 31, 2000 2002, the       540          

director of environmental protection, in consultation with the     542          

attorney general, appropriate federal, state, and local agencies,  543          

and appropriate statewide organizations, shall submit to the       545          

president of the senate and the speaker of the house of                         

representatives a report on the operation and impacts of this act  546          

SUBSTITUTE SENATE BILL NO. 138 OF THE 121st GENERAL ASSEMBLY,      548          

including the impact on environmental compliance and protection.   549          

The attorney general and each state agency that has received a     550          

disclosure under section 3745.72 of the Revised Code shall         551          

cooperate with the director in preparing the report required by    552          

this section and shall submit information relevant to the report   553          

to the director not later than January 31, 2000 2002.                           

      Sec. 3745.74.  NOTHING IN SECTIONS 3745.70 TO 3745.73 OF     555          

THE REVISED CODE SHALL BE CONSTRUED TO LIMIT OR AFFECT EITHER OF   558          

THE FOLLOWING:                                                                  

      (A)  THE AUTHORITY OR OBLIGATION OF ANY GOVERNMENT AGENCY    561          

PURSUANT TO SECTION 149.43 OF THE REVISED CODE;                    563          

      (B)  ANY EMPLOYEE PROTECTION RIGHTS UNDER FEDERAL OR STATE   566          

LAWS.                                                                           

      Sec. 3753.01.  AS USED IN THIS CHAPTER:                      568          

      (A)  "ACCIDENTAL RELEASE" MEANS AN UNANTICIPATED EMISSION    571          

OF A REGULATED SUBSTANCE INTO THE AMBIENT AIR FROM A STATIONARY    572          

SOURCE.                                                                         

      (B)  "CLEAN AIR ACT AMENDMENTS" MEANS THE "CLEAN AIR ACT     577          

AMENDMENTS OF 1990," 91 STAT. 685, 42 U.S.C. 7401 ET AL., AS       580          

AMENDED, AND REGULATIONS ADOPTED UNDER IT.                         581          

      (C)  "COVERED PROCESS" MEANS A PROCESS THAT HAS A REGULATED  584          

SUBSTANCE PRESENT IN AN AMOUNT THAT IS IN EXCESS OF THE THRESHOLD  585          

QUANTITY ESTABLISHED IN RULES ADOPTED UNDER SECTION 3753.02 OF     586          

THE REVISED CODE.                                                  587          

                                                          14     

                                                                 
      (D)  "ENVIRONMENTAL RECEPTOR" MEANS NATURAL AREAS SUCH AS    590          

NATIONAL OR STATE PARKS, FORESTS, OR NATURAL MONUMENTS; FEDERALLY  591          

DESIGNATED OR STATE-DESIGNATED WILDLIFE SANCTUARIES, PRESERVES,    593          

REFUGES, OR AREAS; AND FEDERAL WILDERNESS AREAS, THAT COULD BE     594          

EXPOSED AT ANY TIME TO TOXIC CONCENTRATIONS, RADIANT HEAT, OR      595          

OVERPRESSURE GREATER THAN OR EQUAL TO THE ENDPOINTS PRESCRIBED IN  596          

RULES ADOPTED UNDER SECTION 3753.02 OF THE REVISED CODE AND THAT   598          

CAN BE IDENTIFIED ON UNITED STATES GEOLOGICAL SURVEY MAPS.         599          

      (E)  "OWNER OR OPERATOR" MEANS ANY PERSON WHO OWNS, LEASES,  602          

OPERATES, CONTROLS, OR SUPERVISES A STATIONARY SOURCE.             603          

      (F)  "PROCESS" MEANS ANY ACTIVITY INVOLVING A REGULATED      606          

SUBSTANCE, INCLUDING ANY USE, STORAGE, MANUFACTURING, HANDLING,    607          

OR ON-SITE MOVEMENT OF THE SUBSTANCE OR ANY COMBINATION OF THESE   608          

ACTIVITIES.  ANY GROUP OF VESSELS THAT ARE INTERCONNECTED, OR      609          

SEPARATE VESSELS THAT ARE LOCATED IN SUCH A MANNER THAT A          610          

REGULATED SUBSTANCE POTENTIALLY COULD BE INVOLVED IN A RELEASE,    612          

SHALL BE CONSIDERED A SINGLE PROCESS.                                           

      (G)  "PUBLIC" MEANS ANY PERSON EXCEPT EMPLOYEES OR           615          

CONTRACTORS AT A STATIONARY SOURCE.                                616          

      (H)  "PUBLIC RECEPTOR" MEANS OFF-SITE RESIDENCES,            619          

INSTITUTIONS SUCH AS SCHOOLS OR HOSPITALS, INDUSTRIAL,             620          

COMMERCIAL, AND OFFICE BUILDINGS, PARKS, OR RECREATIONAL AREAS     621          

INHABITED OR OCCUPIED BY THE PUBLIC AT ANY TIME WHERE THE PUBLIC   622          

COULD BE EXPOSED TO TOXIC CONCENTRATIONS, RADIANT HEAT, OR         623          

OVERPRESSURE AS A RESULT OF AN ACCIDENTAL RELEASE.                 624          

      (I)  "REGULATED SUBSTANCE" MEANS A TOXIC OR FLAMMABLE        627          

SUBSTANCE LISTED IN RULES ADOPTED UNDER SECTION 3753.02 OF THE     629          

REVISED CODE.                                                                   

      (J)  "RISK MANAGEMENT PLAN" MEANS A RISK MANAGEMENT PLAN     632          

REQUIRED UNDER SECTION 3753.03 OF THE REVISED CODE.                633          

      (K)  "STATIONARY SOURCE" MEANS ANY BUILDINGS, STRUCTURES,    636          

EQUIPMENT, INSTALLATIONS, OR SUBSTANCE-EMITTING STATIONARY         637          

ACTIVITIES THAT BELONG TO THE SAME INDUSTRIAL GROUP AS DESCRIBED   638          

IN THE STANDARD INDUSTRIAL CLASSIFICATION MANUAL, 1987, THAT ARE   639          

                                                          15     

                                                                 
LOCATED ON ONE OR MORE CONTIGUOUS PROPERTIES UNDER THE CONTROL OF  640          

THE SAME PERSON OR PERSONS, AND FROM WHICH AN ACCIDENTAL RELEASE   641          

MAY OCCUR.  PROPERTIES SHALL NOT BE CONSIDERED CONTIGUOUS SOLELY   643          

BECAUSE OF A RAILROAD OR PIPELINE RIGHT-OF-WAY.                    644          

      (1)  "STATIONARY SOURCE" INCLUDES TRANSPORTATION CONTAINERS  647          

THAT ARE USED FOR STORAGE NOT INCIDENT TO TRANSPORTATION AND       648          

TRANSPORTATION CONTAINERS THAT ARE CONNECTED TO EQUIPMENT AT A     649          

STATIONARY SOURCE FOR LOADING AND UNLOADING.  "STATIONARY SOURCE"  650          

DOES NOT INCLUDE THE TRANSPORTATION, INCLUDING STORAGE INCIDENT    651          

TO TRANSPORTATION, OF ANY REGULATED SUBSTANCE UNDER THIS CHAPTER.  652          

"STATIONARY SOURCE" DOES NOT INCLUDE NATURALLY OCCURRING           653          

HYDROCARBON RESERVOIRS.                                                         

      (2)  "TRANSPORTATION" INCLUDES, BUT IS NOT LIMITED TO,       655          

TRANSPORTATION THAT IS SUBJECT TO OVERSIGHT OR REGULATION UNDER    656          

49 C.F.R. PART 192, 193, OR 195, OR TO A STATE NATURAL GAS OR      658          

HAZARDOUS LIQUID PROGRAM FOR WHICH THE STATE HAS IN EFFECT A       659          

CERTIFICATION TO THE UNITED STATES DEPARTMENT OF TRANSPORTATION    661          

UNDER 49 U.S.C. 60105.                                                          

      (L)  "THRESHOLD QUANTITY" MEANS THE QUANTITY ESTABLISHED     664          

FOR A REGULATED SUBSTANCE IN RULES ADOPTED UNDER SECTION 3753.02   665          

OF THE REVISED CODE THAT, IF EXCEEDED, SUBJECTS AN OWNER OR        666          

OPERATOR TO COMPLIANCE WITH THIS CHAPTER AND RULES ADOPTED UNDER   667          

IT.                                                                             

      (M)  "VESSEL" MEANS ANY REACTOR, TANK, DRUM, BARREL,         670          

CYLINDER, VAT, KETTLE, BOILER, PIPE, HOSE, OR OTHER CONTAINER.     671          

      Sec. 3753.02.  FOR THE PURPOSE OF IMPLEMENTING AND           673          

ADMINISTERING THIS CHAPTER, THE DIRECTOR OF ENVIRONMENTAL          674          

PROTECTION MAY ADOPT, AMEND, AND RESCIND RULES IN ACCORDANCE WITH  675          

CHAPTER 119. OF THE REVISED CODE.  THE RULES SHALL BE CONSISTENT   678          

WITH, EQUIVALENT IN SCOPE, CONTENT, AND COVERAGE TO, AND NO MORE   679          

STRINGENT THAN THE REQUIREMENTS OF SECTION 112(r) OF THE CLEAN     680          

AIR ACT AMENDMENTS AND ANY REGULATIONS ADOPTED PURSUANT TO THAT    682          

SECTION.  RULES ADOPTED UNDER THIS SECTION SHALL PRESCRIBE NOTICE  683          

REQUIREMENTS BY WHICH THE PUBLIC IS INFORMED ABOUT AND AFFORDED    684          

                                                          16     

                                                                 
THE OPPORTUNITY TO COMMENT ON RISK MANAGEMENT PLANS SUBMITTED IN                

ACCORDANCE WITH THIS CHAPTER.                                      685          

      Sec. 3753.03.  (A)  EFFECTIVE UPON THE DATE THAT THE UNITED  688          

STATES ENVIRONMENTAL PROTECTION AGENCY DELEGATES THE PROGRAM       689          

CREATED UNDER SECTION 112(r) OF THE CLEAN AIR ACT AMENDMENTS TO    690          

THE ENVIRONMENTAL PROTECTION AGENCY OF THIS STATE, AN OWNER OR     691          

OPERATOR OF A STATIONARY SOURCE THAT HAS A COVERED PROCESS SHALL   692          

DEVELOP AND SUBMIT A RISK MANAGEMENT PLAN NO LATER THAN THE        693          

LATEST OF THE FOLLOWING:                                                        

      (1)  JUNE 21, 1999;                                          695          

      (2)  THE DATE ON WHICH A REGULATED SUBSTANCE IS FIRST        697          

PRESENT ABOVE A THRESHOLD QUANTITY IN A PROCESS AT THE STATIONARY  698          

SOURCE;                                                                         

      (3)  THREE YEARS AFTER THE DATE ON WHICH A REGULATED         700          

SUBSTANCE AT THE STATIONARY SOURCE IS FIRST LISTED UNDER 40        702          

C.F.R. 68.130.                                                                  

      (B)  AN OWNER OR OPERATOR WHO IS SUBJECT TO DIVISION (A) OF  706          

THIS SECTION SHALL SUBMIT A SINGLE RISK MANAGEMENT PLAN THAT       707          

REFLECTS ALL COVERED PROCESSES AT THE STATIONARY SOURCE BY THE     708          

APPLICABLE DEADLINE ESTABLISHED UNDER THAT DIVISION AND THAT IS    709          

IN THE FORM REQUIRED BY THE DIRECTOR OF ENVIRONMENTAL PROTECTION   710          

IN RULES ADOPTED UNDER SECTION 3753.02 OF THE REVISED CODE.  THE   711          

RISK MANAGEMENT PLAN SHALL INCLUDE ALL OF THE FOLLOWING, AS        712          

APPLICABLE:                                                                     

      (1)  A REGISTRATION THAT REFLECTS ALL COVERED PROCESSES AT   715          

THE STATIONARY SOURCE PURSUANT TO 40 C.F.R. 68.160;                716          

      (2)  THE APPLICABLE INFORMATION REQUIRED TO BE SUBMITTED     719          

WITH THE PLAN UNDER SECTION 3753.04 OF THE REVISED CODE;           720          

      (3)  A SUMMARY OF THE ACTIONS TAKEN TO COMPLY WITH ALL OF    723          

THE OTHER APPLICABLE REQUIREMENTS ESTABLISHED UNDER SECTION                     

3753.04 OF THE REVISED CODE.                                       724          

      (C)  AN OWNER OR OPERATOR WHO HAS SUBMITTED A RISK           727          

MANAGEMENT PLAN AS REQUIRED BY DIVISION (A) OF THIS SECTION OR     728          

SUBMITTED AN UPDATE TO A RISK MANAGEMENT PLAN UNDER DIVISION (C)   730          

                                                          17     

                                                                 
OF THIS SECTION SHALL REVISE, UPDATE, AND SUBMIT THE RISK          731          

MANAGEMENT PLAN IN ACCORDANCE WITH WHICHEVER OF THE FOLLOWING IS   732          

APPLICABLE:                                                                     

      (1)  NOT LATER THAN FIVE YEARS AFTER THE INITIAL SUBMISSION  735          

OF THE RISK MANAGEMENT PLAN UNDER DIVISION (A) OF THIS SECTION;    737          

      (2)  NOT LATER THAN FIVE YEARS AFTER THE MOST RECENT UPDATE  740          

OF THE RISK MANAGEMENT PLAN SUBMITTED UNDER DIVISION (C) OF THIS   741          

SECTION;                                                                        

      (3)  AS OTHERWISE PROVIDED IN RULES ADOPTED BY THE DIRECTOR  744          

UNDER SECTION 3753.02 OF THE REVISED CODE.                         745          

      (D)  NO OWNER OR OPERATOR WHO IS REQUIRED TO SUBMIT,         748          

REVISE, OR UPDATE A RISK MANAGEMENT PLAN SHALL FAIL TO DO SO       750          

WITHIN THE PRESCRIBED TIME.                                                     

      (E)  AN OWNER OR OPERATOR WHO IS REQUIRED TO SUBMIT A RISK   753          

MANAGEMENT PLAN AND WHO KNOWINGLY MAKES A FALSE STATEMENT IN THE   754          

PLAN, ON A RECORD UPON WHICH INFORMATION IN THE PLAN IS BASED, OR  755          

ON OR PERTAINING TO ANY OTHER INFORMATION OR RECORDS REQUIRED TO   756          

BE MAINTAINED UNDER THIS CHAPTER OR RULES ADOPTED UNDER IT IS      757          

GUILTY OF FALSIFICATION UNDER SECTION 2921.13 OF THE REVISED       759          

CODE.                                                                           

      Sec. 3753.04.  (A)  IN ADDITION TO COMPLYING WITH SECTION    761          

3753.03 OF THE REVISED CODE, THE OWNER OR OPERATOR OF A            764          

STATIONARY SOURCE AT WHICH ONE OR MORE COVERED PROCESSES ARE                    

PRESENT, AS PART OF THE OWNER OR OPERATOR'S RISK MANAGEMENT        765          

PROGRAM, SHALL COMPLY WITH PROGRAM 1, PROGRAM 2, OR PROGRAM 3      766          

REQUIREMENTS ESTABLISHED UNDER THIS SECTION OR WITH A COMBINATION  768          

OF THOSE REQUIREMENTS.  AN OWNER OR OPERATOR SHALL DETERMINE       769          

WHICH OF THOSE REQUIREMENTS APPLY TO THE COVERED PROCESSES THAT    770          

ARE PRESENT AT THE STATIONARY SOURCE AS PROVIDED IN DIVISIONS (B)  771          

TO (D) OF THIS SECTION.  AN OWNER OR OPERATOR SHALL COMPLY WITH    772          

ALL LEVELS OF PROGRAM REQUIREMENTS THAT APPLY TO THE COVERED       773          

PROCESSES AT THE OWNER OR OPERATOR'S STATIONARY SOURCE.            774          

      (B)  THE OWNER OR OPERATOR OF A STATIONARY SOURCE AT WHICH   777          

A COVERED PROCESS IS PRESENT IS SUBJECT TO PROGRAM 1 REQUIREMENTS  778          

                                                          18     

                                                                 
ESTABLISHED UNDER DIVISION (E) OF THIS SECTION IF THE COVERED      780          

PROCESS MEETS ALL OF THE FOLLOWING CONDITIONS:                     781          

      (1)  FOR THE FIVE YEARS PRIOR TO THE SUBMISSION OF A RISK    783          

MANAGEMENT PLAN, THE PROCESS HAS NOT HAD AN ACCIDENTAL RELEASE OF  785          

A REGULATED SUBSTANCE WHERE EXPOSURE TO THE SUBSTANCE, ITS                      

REACTION PRODUCTS, OVERPRESSURE GENERATED BY AN EXPLOSION          786          

INVOLVING THE SUBSTANCE, OR RADIANT HEAT GENERATED BY A FIRE       787          

INVOLVING THE SUBSTANCE LED TO ANY OF THE FOLLOWING OCCURRENCES    789          

OFF-SITE:                                                                       

      (a)  DEATH OF ANY PERSON;                                    791          

      (b)  INJURY TO ANY PERSON;                                   793          

      (c)  RESPONSE OR RESTORATION ACTIVITIES FOR AN               796          

ENVIRONMENTAL RECEPTOR.                                                         

      (2)  THE DISTANCE TO A TOXIC OR FLAMMABLE ENDPOINT FOR A     798          

WORST CASE RELEASE ASSESSMENT CONDUCTED PURSUANT TO A HAZARD       799          

ASSESSMENT AS SPECIFIED IN RULES ADOPTED UNDER SECTION 3753.02 OF  801          

THE REVISED CODE IS LESS THAN THE DISTANCE TO ANY PUBLIC           803          

RECEPTOR;                                                                       

      (3)  EMERGENCY RESPONSE PROCEDURES HAVE BEEN COORDINATED     805          

BETWEEN THE STATIONARY SOURCE AND LOCAL EMERGENCY PLANNING AND     806          

RESPONSE ORGANIZATIONS.                                            807          

      (C)  THE OWNER OR OPERATOR OF A STATIONARY SOURCE AT WHICH   810          

A COVERED PROCESS IS PRESENT IS SUBJECT TO PROGRAM 2 REQUIREMENTS  811          

ESTABLISHED UNDER DIVISION (F) OF THIS SECTION IF THE COVERED      813          

PROCESS DOES NOT MEET THE CONDITIONS ESTABLISHED UNDER DIVISION    814          

(B) OR (D) OF THIS SECTION.                                        815          

      (D)  THE OWNER OR OPERATOR OF A STATIONARY SOURCE AT WHICH   818          

A COVERED PROCESS IS PRESENT IS SUBJECT TO PROGRAM 3 REQUIREMENTS  819          

ESTABLISHED UNDER DIVISION (G) OF THIS SECTION IF THE COVERED      821          

PROCESS DOES NOT MEET THE CONDITIONS ESTABLISHED UNDER DIVISION    822          

(B) OF THIS SECTION AND EITHER OF THE FOLLOWING CONDITIONS IS      824          

MET:                                                                            

      (1)  THE PROCESS IS IN STANDARD INDUSTRIAL CLASSIFICATION    826          

CODE 2611, 2812, 2819, 2821, 2865, 2869, 2873, 2879, OR 2911;      828          

                                                          19     

                                                                 
      (2)  THE PROCESS IS SUBJECT TO THE UNITED STATES             830          

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION SAFETY MANAGEMENT    831          

STANDARD UNDER 29 C.F.R. 1910.119.                                 833          

      (E)  THE OWNER OR OPERATOR OF A STATIONARY SOURCE AT WHICH   836          

ONE OR MORE COVERED PROCESSES ARE PRESENT THAT MEET THE            837          

CONDITIONS ESTABLISHED UNDER DIVISION (B) OF THIS SECTION SHALL    839          

COMPLY WITH ALL OF THE FOLLOWING PROGRAM 1 REQUIREMENTS:                        

      (1)  SUBMIT WITH THE RISK MANAGEMENT PLAN AN ANALYSIS OF     841          

THE WORST CASE RELEASE SCENARIO FOR EACH COVERED PROCESS AND       842          

DOCUMENTATION THAT THE NEAREST PUBLIC RECEPTOR IS BEYOND THE       843          

DISTANCE TO A TOXIC OR FLAMMABLE ENDPOINT;                         844          

      (2)  SUBMIT WITH THE RISK MANAGEMENT PLAN A FIVE-YEAR        846          

ACCIDENT HISTORY FOR THE PROCESS;                                  847          

      (3)  ENSURE THAT RESPONSE ACTIONS HAVE BEEN COORDINATED      849          

WITH LOCAL EMERGENCY PLANNING AND RESPONSE AGENCIES;               850          

      (4)  CERTIFY IN THE RISK MANAGEMENT PLAN THAT "BASED UPON    853          

CRITERIA IN RULES ADOPTED UNDER SECTION 3753.02 OF THE REVISED     857          

CODE, THE DISTANCE TO THE SPECIFIED ENDPOINT FOR THE WORST CASE    858          

RELEASE SCENARIO FOR THE FOLLOWING PROCESS(ES) IS LESS THAN THE    859          

DISTANCE TO THE NEAREST PUBLIC RECEPTOR:  (LIST PROCESSES).        860          

WITHIN THE PAST FIVE YEARS, THE PROCESS(ES) HAS (HAVE) HAD NO      861          

ACCIDENTAL RELEASE THAT CAUSED OFF-SITE IMPACTS AS DESCRIBED IN    862          

RULES ADOPTED UNDER SECTION 3753.02 OF THE REVISED CODE.  NO       865          

ADDITIONAL MEASURES ARE NECESSARY TO PREVENT OFF-SITE IMPACTS      866          

FROM ACCIDENTAL RELEASES.  IN THE EVENT OF FIRE, EXPLOSION, OR A   867          

RELEASE OF A REGULATED SUBSTANCE FROM THE PROCESS(ES), ENTRY       868          

WITHIN THE DISTANCE TO THE SPECIFIED ENDPOINTS MAY POSE A DANGER   869          

TO PUBLIC EMERGENCY RESPONDERS.  THEREFORE, PUBLIC EMERGENCY       870          

RESPONDERS SHOULD NOT ENTER THIS AREA EXCEPT AS ARRANGED WITH THE  872          

EMERGENCY CONTACT INDICATED IN THE RISK MANAGEMENT PLAN.  THE      873          

UNDERSIGNED CERTIFIES THAT, TO THE BEST OF MY KNOWLEDGE, THE                    

INFORMATION SUBMITTED IS TRUE, ACCURATE, AND COMPLETE.             874          

(SIGNATURE, TITLE, DATE SIGNED)"                                   875          

      (F)  THE OWNER OR OPERATOR OF A STATIONARY SOURCE AT WHICH   878          

                                                          20     

                                                                 
ONE OR MORE COVERED PROCESSES ARE PRESENT THAT MEET THE            879          

CONDITIONS ESTABLISHED UNDER DIVISION (C) OF THIS SECTION SHALL    880          

COMPLY WITH ALL OF THE FOLLOWING PROGRAM 2 REQUIREMENTS:           881          

      (1)  DEVELOP AND IMPLEMENT A MANAGEMENT SYSTEM IN            883          

ACCORDANCE WITH RULES ADOPTED UNDER SECTION 3753.02 OF THE         885          

REVISED CODE;                                                      886          

      (2)  CONDUCT A HAZARD ASSESSMENT IN ACCORDANCE WITH RULES    888          

ADOPTED UNDER SECTION 3753.02 OF THE REVISED CODE;                 891          

      (3)  IMPLEMENT PROGRAM 2 PREVENTION REQUIREMENTS OR          893          

IMPLEMENT PROGRAM 3 PREVENTION REQUIREMENTS IN ACCORDANCE WITH     894          

RULES ADOPTED UNDER SECTION 3753.02 OF THE REVISED CODE;           897          

      (4)  SUBMIT AS PART OF THE RISK MANAGEMENT PLAN INFORMATION  899          

ON PREVENTION PROGRAM ELEMENTS FOR COVERED PROCESSES THAT ARE      900          

SUBJECT TO PROGRAM 2 REQUIREMENTS;                                 901          

      (5)  DEVELOP AND IMPLEMENT AN EMERGENCY RESPONSE PROGRAM IN  904          

ACCORDANCE WITH RULES ADOPTED UNDER SECTION 3753.02 OF THE         905          

REVISED CODE.                                                                   

      (G)  THE OWNER OR OPERATOR OF A STATIONARY SOURCE AT WHICH   909          

ONE OR MORE COVERED PROCESSES ARE PRESENT THAT MEET THE            910          

CONDITIONS ESTABLISHED UNDER DIVISION (D) OF THIS SECTION SHALL    911          

COMPLY WITH ALL OF THE FOLLOWING PROGRAM 3 REQUIREMENTS:           912          

      (1)  DEVELOP AND IMPLEMENT A MANAGEMENT SYSTEM IN            914          

ACCORDANCE WITH RULES ADOPTED UNDER SECTION 3753.02 OF THE         916          

REVISED CODE;                                                      917          

      (2)  CONDUCT A HAZARD ASSESSMENT IN ACCORDANCE WITH RULES    919          

ADOPTED UNDER SECTION 3753.02 OF THE REVISED CODE;                 922          

      (3)  IMPLEMENT PROGRAM 3 PREVENTION REQUIREMENTS IN          924          

ACCORDANCE WITH RULES ADOPTED UNDER SECTION 3753.02 OF THE         926          

REVISED CODE;                                                      927          

      (4)  SUBMIT AS PART OF THE RISK MANAGEMENT PLAN INFORMATION  929          

ON PREVENTION PROGRAM ELEMENTS FOR COVERED PROCESSES THAT ARE      930          

SUBJECT TO PROGRAM 3 REQUIREMENTS;                                 931          

      (5)  DEVELOP AND IMPLEMENT AN EMERGENCY RESPONSE PROGRAM IN  934          

ACCORDANCE WITH RULES ADOPTED UNDER SECTION 3753.02 OF THE         935          

                                                          21     

                                                                 
REVISED CODE.                                                                   

      (H)  IF AT ANY TIME A COVERED PROCESS AT A STATIONARY        938          

SOURCE NO LONGER MEETS THE CONDITIONS ESTABLISHED UNDER THIS       939          

SECTION FOR ITS PROGRAM LEVEL, THE OWNER OR OPERATOR SHALL COMPLY  940          

WITH THE REQUIREMENTS OF THE NEW PROGRAM LEVEL THAT APPLIES TO     941          

THE COVERED PROCESS AND SHALL UPDATE THE RISK MANAGEMENT PLAN AND  942          

INFORMATION SUBMITTED WITH IT NOT LATER THAN SIX MONTHS AFTER THE  943          

CHANGE IN COMPLIANCE WITH THIS CHAPTER AND RULES ADOPTED UNDER     944          

IT.                                                                             

      Sec. 3753.05.  (A)  EXCEPT AS PROVIDED IN DIVISION (G) OF    946          

THIS SECTION, AN OWNER OR OPERATOR WHO IS REQUIRED TO SUBMIT A     948          

RISK MANAGEMENT PLAN UNDER THIS CHAPTER SHALL PAY ANNUALLY TO THE               

ENVIRONMENTAL PROTECTION AGENCY A FEE OF FIFTY DOLLARS TOGETHER    949          

WITH ANY OF THE FOLLOWING APPLICABLE FEES:                         950          

      (1)  A FEE OF SIXTY-FIVE DOLLARS IF A COVERED PROCESS IN     952          

THE STATIONARY SOURCE INCLUDES PROPANE AND PROPANE IS THE ONLY     953          

REGULATED SUBSTANCE AT THE STATIONARY SOURCE OVER THE THRESHOLD    954          

QUANTITY;                                                          955          

      (2)  A FEE OF SIXTY-FIVE DOLLARS IF A COVERED PROCESS IN     957          

THE STATIONARY SOURCE INCLUDES ANHYDROUS AMMONIA THAT IS SOLD FOR  959          

USE AS AN AGRICULTURAL NUTRIENT AND IS ON-SITE OVER THE THRESHOLD  960          

QUANTITY;                                                                       

      (3)  A FEE OF TWO HUNDRED DOLLARS FOR EACH REGULATED         962          

SUBSTANCE OVER THE THRESHOLD QUANTITY.  PROPANE SHALL BE           963          

CONSIDERED A REGULATED SUBSTANCE SUBJECT TO THE FEE LEVIED UNDER   964          

DIVISION (A)(3) OF THIS SECTION ONLY IF IT IS NOT THE ONLY         966          

REGULATED SUBSTANCE OVER THE THRESHOLD QUANTITY.  ANHYDROUS        967          

AMMONIA SHALL BE CONSIDERED A REGULATED SUBSTANCE SUBJECT TO THE   968          

FEE LEVIED UNDER DIVISION (A)(3) OF THIS SECTION ONLY IF IT IS     970          

NOT SOLD FOR USE AS AN AGRICULTURAL NUTRIENT.                                   

      (B)  IN ACCORDANCE WITH RULES ADOPTED UNDER SECTION 3753.02  973          

OF THE REVISED CODE, THE FEES ASSESSED UNDER DIVISION (A) OF THIS  976          

SECTION SHALL BE COLLECTED FOR THE YEAR 1999 NO LATER THAN JUNE    978          

21, 1999.  THEREAFTER, THE FEES SHALL BE COLLECTED NO LATER THAN   979          

                                                          22     

                                                                 
THE FIRST DAY OF SEPTEMBER OF EACH YEAR.  THE FEES ASSESSED UNDER  981          

DIVISION (A) OF THIS SECTION FOR A STATIONARY SOURCE SHALL BE      983          

BASED UPON THE REGULATED SUBSTANCES PRESENT OVER THE THRESHOLD     984          

QUANTITY IDENTIFIED IN THE RISK MANAGEMENT PLAN ON FILE FOR        985          

CALENDAR YEAR 1999 AS OF THE TWENTY-FIRST DAY OF JUNE AND FOR      986          

EACH SUBSEQUENT CALENDAR YEAR AS OF THE FIRST DAY OF SEPTEMBER.    987          

      (C)  AN OWNER OR OPERATOR WHO IS REQUIRED TO SUBMIT A RISK   991          

MANAGEMENT PLAN UNDER THIS CHAPTER AND WHO FAILS TO SUBMIT SUCH A  992          

PLAN WITHIN THIRTY DAYS AFTER THE APPLICABLE FILING DATE           993          

PRESCRIBED IN SECTION 3753.03 OF THE REVISED CODE SHALL SUBMIT     994          

WITH THE RISK MANAGEMENT PLAN A LATE FILING FEE OF THREE PER CENT  995          

OF THE TOTAL FEES DUE UNDER DIVISION (A) OF THIS SECTION.          997          

      (D)  THE DIRECTOR OF ENVIRONMENTAL PROTECTION MAY ESTABLISH  1,000        

FEES TO BE PAID BY PERSONS, OTHER THAN PUBLIC OFFICERS OR          1,001        

EMPLOYEES, TO COVER THE COSTS OF OBTAINING COPIES OF DOCUMENTS OR  1,002        

INFORMATION SUBMITTED TO THE DIRECTOR UNDER THIS CHAPTER AND       1,003        

RULES ADOPTED UNDER IT.  THE DIRECTOR SHALL NOT CHARGE MORE THAN                

THE ACTUAL COST OF MAKING AND DELIVERING SUCH COPIES OR OF         1,005        

ACCESSING ANY COMPUTERIZED DATA BASE ESTABLISHED OR USED FOR THE   1,007        

PURPOSES OF ASSISTING IN THE ADMINISTRATION OF THIS CHAPTER.       1,008        

      (E)  ALL MONEYS RECEIVED BY THE AGENCY UNDER DIVISIONS (A),  1,011        

(C), AND (D) OF THIS SECTION SHALL BE TRANSMITTED TO THE           1,013        

TREASURER OF STATE TO BE CREDITED TO THE RISK MANAGEMENT PLAN      1,014        

REPORTING FUND, WHICH IS HEREBY CREATED IN THE STATE TREASURY.     1,015        

THE FUND SHALL BE ADMINISTERED BY THE DIRECTOR AND USED            1,016        

EXCLUSIVELY FOR THE ADMINISTRATION AND ENFORCEMENT OF THIS         1,017        

CHAPTER AND RULES ADOPTED UNDER IT.                                1,018        

      (F)  BEGINNING IN FISCAL YEAR 2001, AND EVERY TWO YEARS      1,021        

THEREAFTER, THE DIRECTOR SHALL REVIEW THE TOTAL AMOUNT OF MONEYS   1,022        

IN THE RISK MANAGEMENT PLAN REPORTING FUND TO DETERMINE IF THAT    1,024        

AMOUNT EXCEEDS SEVEN HUNDRED FIFTY THOUSAND DOLLARS IN EITHER OF   1,025        

THE TWO PRECEDING FISCAL YEARS.  IF THE TOTAL AMOUNT OF MONEYS IN  1,026        

THE FUND EXCEEDED SEVEN HUNDRED FIFTY THOUSAND DOLLARS IN EITHER   1,027        

FISCAL YEAR, THE DIRECTOR, AFTER REVIEW OF THE FEE STRUCTURE AND   1,029        

                                                          23     

                                                                 
CONSULTATION WITH AFFECTED PERSONS, SHALL ISSUE AN ORDER REDUCING  1,030        

THE AMOUNT OF THE FEES LEVIED UNDER DIVISION (A) OF THIS SECTION   1,032        

SO THAT THE ESTIMATED AMOUNT OF MONEYS RESULTING FROM THE FEES     1,033        

WILL NOT EXCEED SEVEN HUNDRED FIFTY THOUSAND DOLLARS IN ANY        1,034        

FISCAL YEAR.                                                                    

      IF, UPON REVIEW OF THE FEES UNDER THIS DIVISION AND AFTER    1,036        

THE FEES HAVE BEEN REDUCED, THE DIRECTOR DETERMINES THAT THE       1,038        

TOTAL AMOUNT OF MONEYS COLLECTED AND ACCUMULATED IS LESS THAN      1,039        

SEVEN HUNDRED FIFTY THOUSAND DOLLARS, THE DIRECTOR, AFTER REVIEW   1,040        

OF THE FEE STRUCTURE AND CONSULTATION WITH AFFECTED PERSONS, MAY   1,041        

ISSUE AN ORDER INCREASING THE AMOUNT OF THE FEES LEVIED UNDER      1,042        

DIVISION (A) OF THIS SECTION SO THAT THE ESTIMATED AMOUNT OF       1,044        

MONEYS RESULTING FROM THE FEES WILL BE APPROXIMATELY SEVEN         1,045        

HUNDRED FIFTY THOUSAND DOLLARS.  FEES SHALL NEVER BE INCREASED TO  1,046        

AN AMOUNT EXCEEDING THE AMOUNT SPECIFIED IN DIVISION (A) OF THIS   1,047        

SECTION.                                                                        

      NOTWITHSTANDING SECTION 119.06 OF THE REVISED CODE, THE      1,050        

DIRECTOR MAY ISSUE AN ORDER UNDER THIS DIVISION WITHOUT THE        1,051        

NECESSITY TO HOLD AN ADJUDICATORY HEARING IN CONNECTION WITH THE   1,052        

ORDER.  THE ISSUANCE OF AN ORDER UNDER THIS DIVISION IS NOT AN     1,053        

ACT OR ACTION FOR PURPOSES OF SECTION 3745.04 OF THE REVISED       1,055        

CODE.                                                                           

      (G)  THIS SECTION DOES NOT APPLY TO THE OWNER OR OPERATOR    1,057        

OF A BUSINESS THAT EMPLOYS ONE HUNDRED OR FEWER INDIVIDUALS AND    1,058        

IS A SMALL BUSINESS CONCERN AS DEFINED IN THE "SMALL BUSINESS      1,061        

ACT," 72 STAT. 384 (1958), 15 U.S.C.A. 632, AS AMENDED.            1,064        

      Sec. 3753.06.  NO PERSON SHALL VIOLATE ANY PROVISION OF      1,066        

THIS CHAPTER OR A RULE ADOPTED OR ORDER ISSUED UNDER IT.           1,067        

      Sec. 3753.07.  THE DIRECTOR OF ENVIRONMENTAL PROTECTION OR   1,070        

THE DIRECTOR'S AUTHORIZED REPRESENTATIVE, UPON PROPER                           

IDENTIFICATION AND UPON STATING THE PURPOSE AND NECESSITY OF AN    1,071        

INSPECTION, MAY ENTER AT REASONABLE TIMES UPON ANY PRIVATE OR      1,072        

PUBLIC PROPERTY, REAL OR PERSONAL, TO INSPECT, INVESTIGATE,        1,073        

OBTAIN SAMPLES, AND EXAMINE AND COPY RECORDS TO DETERMINE          1,074        

                                                          24     

                                                                 
COMPLIANCE WITH THIS CHAPTER AND RULES ADOPTED OR ORDERS ISSUED    1,075        

UNDER IT.  THE DIRECTOR OR THE DIRECTOR'S AUTHORIZED               1,076        

REPRESENTATIVE MAY APPLY FOR, AND ANY JUDGE OF A COURT OF RECORD   1,077        

MAY ISSUE FOR USE WITHIN THE COURT'S TERRITORIAL JURISDICTION, AN  1,079        

ADMINISTRATIVE INSPECTION WARRANT UNDER DIVISION (F) OF SECTION    1,080        

2933.21 OF THE  REVISED CODE OR OTHER APPROPRIATE SEARCH WARRANT   1,083        

NECESSARY TO ACHIEVE THE PURPOSES OF THIS CHAPTER AND RULES        1,084        

ADOPTED OR ORDERS ISSUED UNDER IT.                                              

      Sec. 3753.08.  THE DIRECTOR OF ENVIRONMENTAL PROTECTION MAY  1,087        

ISSUE ORDERS REQUIRING AN OWNER OR OPERATOR WHO IS SUBJECT TO      1,088        

THIS CHAPTER TO ABATE A VIOLATION OF SECTION 3753.06 OF THE        1,089        

REVISED CODE.  THE DIRECTOR MAY ISSUE SUCH ORDERS AS FINAL ORDERS  1,090        

WITHOUT ISSUING A PROPOSED ACTION UNDER SECTION 3745.07 OF THE     1,092        

REVISED CODE AND, NOTWITHSTANDING SECTION 119.06 OF THE REVISED    1,095        

CODE, WITHOUT THE NECESSITY TO HOLD AN ADJUDICATION HEARING.       1,096        

ISSUANCE OF AN ORDER UNDER THIS SECTION IS NOT A CONDITION         1,097        

PRECEDENT TO BRINGING ANY CIVIL OR CRIMINAL ACTION UNDER THIS      1,098        

CHAPTER.                                                                        

      Sec. 3753.09.  (A)  THE ATTORNEY GENERAL OR THE PROSECUTING  1,101        

ATTORNEY OF THE COUNTY OR DIRECTOR OF LAW OF THE CITY WHERE A      1,102        

VIOLATION HAS OCCURRED OR IS OCCURRING, UPON WRITTEN REQUEST OF    1,103        

THE DIRECTOR OF ENVIRONMENTAL PROTECTION, SHALL PROSECUTE TO       1,104        

TERMINATION ANY PERSON WHO HAS VIOLATED DIVISION (D) OF SECTION    1,106        

3753.03 OF THE REVISED CODE OR SHALL BRING AN ACTION FOR           1,108        

INJUNCTION AGAINST ANY PERSON WHO HAS VIOLATED OR IS VIOLATING     1,109        

SECTION 3753.06 OF THE REVISED CODE.  THE COURT OF COMMON PLEAS    1,110        

IN WHICH AN ACTION FOR INJUNCTION IS FILED HAS THE JURISDICTION    1,112        

TO AND SHALL GRANT PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF     1,113        

UPON A SHOWING THAT THE PERSON AGAINST WHOM THE ACTION IS BROUGHT  1,114        

HAS VIOLATED OR IS VIOLATING SECTION 3753.06 OF THE REVISED CODE.               

THE COURT SHALL GIVE PRECEDENCE TO SUCH AN ACTION OVER ALL OTHER   1,116        

CASES.                                                                          

      (B)  WHOEVER VIOLATES SECTION 3753.06 OF THE REVISED CODE    1,120        

SHALL PAY A CIVIL PENALTY OF NOT MORE THAN TWENTY-FIVE THOUSAND    1,121        

                                                          25     

                                                                 
DOLLARS FOR EACH DAY OF EACH VIOLATION.  THE ATTORNEY GENERAL OR   1,122        

THE PROSECUTING ATTORNEY OF THE COUNTY OR DIRECTOR OF LAW OF THE   1,123        

CITY WHERE A VIOLATION OF THAT SECTION HAS OCCURRED OR IS          1,124        

OCCURRING, UPON WRITTEN REQUEST OF THE DIRECTOR, SHALL BRING AN    1,125        

ACTION FOR THE IMPOSITION OF A CIVIL PENALTY UNDER THIS DIVISION   1,126        

AGAINST ANY PERSON WHO HAS COMMITTED OR IS COMMITTING ANY SUCH     1,127        

VIOLATION.  MONEYS RESULTING FROM CIVIL PENALTIES IMPOSED UNDER                 

THIS DIVISION SHALL BE CREDITED TO THE RISK MANAGEMENT PLAN        1,128        

REPORTING FUND CREATED IN SECTION 3753.05 OF THE REVISED CODE.     1,130        

      (C)  UPON THE CERTIFIED WRITTEN REQUEST OF ANY PERSON, THE   1,132        

DIRECTOR SHALL CONDUCT INVESTIGATIONS AND MAKE INQUIRIES THAT ARE  1,133        

NECESSARY TO SECURE COMPLIANCE WITH THIS CHAPTER OR RULES ADOPTED  1,135        

OR ORDERS ISSUED UNDER IT.  THE DIRECTOR, UPON REQUEST OR UPON     1,136        

THE DIRECTOR'S OWN INITIATIVE, MAY INVESTIGATE OR MAKE INQUIRIES   1,137        

INTO ANY VIOLATION OF THIS CHAPTER OR RULES ADOPTED OR ORDERS      1,138        

ISSUED UNDER IT.                                                                

      Sec. 3753.10.  (A)  AS USED IN THIS SECTION:                 1,140        

      (1)  "HARM" MEANS INJURY TO, DEATH OF, OR LOSS TO PERSON OR  1,142        

PROPERTY.                                                          1,143        

      (2)  "TORT ACTION" MEANS A CIVIL ACTION FOR DAMAGES FOR      1,145        

HARM, BUT DOES NOT INCLUDE A CIVIL ACTION FOR DAMAGES FOR A        1,146        

BREACH OF CONTRACT OR OTHER AGREEMENT BETWEEN PERSONS OR FOR A     1,147        

BREACH OF A WARRANTY THAT EXISTS PURSUANT TO THE REVISED CODE OR   1,149        

THE COMMON LAW OF THIS STATE.                                      1,150        

      (B)  THE STATE, AND ANY OFFICER OR EMPLOYEE OF THE STATE AS  1,153        

DEFINED IN SECTION 109.36 OF THE REVISED CODE, IS NOT LIABLE IN A  1,154        

TORT ACTION WHEN THE STATE INSPECTS, INVESTIGATES, REVIEWS, OR     1,155        

ACCEPTS A RISK MANAGEMENT PLAN FROM AN OWNER OR OPERATOR WHO IS    1,156        

SUBJECT TO THIS CHAPTER UNLESS AN ACTION OR OMISSION OF THE        1,158        

STATE, OR OF AN OFFICER OR EMPLOYEE OF THE STATE, CONSTITUTES      1,159        

WILLFUL OR WANTON MISCONDUCT OR INTENTIONALLY TORTIOUS CONDUCT.    1,160        

ANY ACTION BROUGHT AGAINST THE STATE UNDER THIS DIVISION SHALL BE  1,161        

BROUGHT IN THE COURT OF CLAIMS.                                                 

      (C)(1)  THIS SECTION DOES NOT CREATE, AND SHALL NOT BE       1,164        

                                                          26     

                                                                 
CONSTRUED AS CREATING, A NEW CAUSE OF ACTION AGAINST OR            1,165        

SUBSTANTIVE LEGAL RIGHT AGAINST THE STATE OR AN OFFICER OR         1,166        

EMPLOYEE OF THE STATE.                                                          

      (2)  THIS SECTION DOES NOT AFFECT, AND SHALL NOT BE          1,168        

CONSTRUED AS AFFECTING, ANY IMMUNITIES FROM CIVIL LIABILITY OR     1,169        

DEFENSES ESTABLISHED BY THE  REVISED CODE, THE UNITED STATES       1,173        

CONSTITUTION, OR THE OHIO CONSTITUTION OR AVAILABLE AT COMMON LAW  1,174        

TO WHICH THIS STATE, OR AN OFFICER OR EMPLOYEE OF THE STATE, MAY   1,175        

BE ENTITLED UNDER CIRCUMSTANCES NOT COVERED BY THIS SECTION.       1,176        

      (3)  SECTION 9.86 OF THE REVISED CODE DOES NOT APPLY TO AN   1,179        

OFFICER OR EMPLOYEE OF THE STATE IF THE OFFICER OR EMPLOYEE IS     1,180        

PERFORMING WORK IN CONNECTION WITH INSPECTING, INVESTIGATING,      1,181        

REVIEWING, OR ACCEPTING A RISK MANAGEMENT PLAN FROM AN OWNER OR    1,182        

OPERATOR WHO IS SUBJECT TO THIS CHAPTER AT THE TIME THAT THE       1,184        

OFFICER OR EMPLOYEE ALLEGEDLY CAUSED THE HARM OR CAUSED OR         1,185        

CONTRIBUTED TO THE PRESENCE OR RELEASE OF TOXIC OR FLAMMABLE       1,186        

SUBSTANCES FOR WHICH DAMAGES ARE SOUGHT IN A TORT ACTION.  IN      1,187        

THAT CASE, THE IMMUNITIES CONFERRED BY DIVISION (B) OF THIS        1,188        

SECTION APPLY TO THAT INDIVIDUAL.                                               

      Sec. 3753.99.  WHOEVER PURPOSELY VIOLATES DIVISION (D) OF    1,191        

SECTION 3753.03 OF THE REVISED CODE SHALL BE FINED NOT MORE THAN   1,193        

TWENTY THOUSAND DOLLARS AND IMPRISONED FOR NOT MORE THAN ONE       1,194        

YEAR, OR BOTH.  EACH DAY OF VIOLATION IS A SEPARATE OFFENSE.                    

      Section 2.  That existing sections 3745.70, 3745.71,         1,196        

3745.72, and 3745.73 of the Revised Code are hereby repealed.      1,197