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
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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
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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.
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(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
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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
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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
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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
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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
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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
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(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
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(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
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(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
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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
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(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
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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