H. B. No. 43 As Introduced

Representatives Core, Willamowski, Collier, Seitz, Hollister, Gibbs, Olman, Hagan, Widener, Calvert, Hartnett, McGregor, Reinhard, Setzer, Schaffer, Gilb, Jolivette, Woodard, Carmichael, Otterman, Allen, Strahorn, Williams, White, Carano, Flowers, Ujvagi, Webster, Perry, Seaver

A BILL

To enact sections 6111.50 to 6111.56 of the Revised 1
Code to establish requirements for the use of 2
credible data in administering the Water Pollution 3
Control Law. 4

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

       Section 1. That sections 6111.50, 6111.51, 6111.52, 6111.53, 5
6111.54, 6111.55, and 6111.56 of the Revised Code be enacted to 6
read as follows: 7

       Sec. 6111.50. As used in sections 6111.50 to 6111.56 of the 8
Revised Code: 9

        (A) "Credible data" means scientifically valid chemical, 10
physical, or biological water quality monitoring data concerning 11
surface waters, including qualitative scoring of physical habitat 12
characteristics and the sampling of fish, macroinvertebrates, and 13
water quality, that have been collected by or submitted to the 14
director of environmental protection and that comply with the 15
requirements established in rules adopted under section 6111.51 of 16
the Revised Code. "Credible data" may include historical data if 17
the director identifies compelling reasons as to why the data are 18
credible. 19

        (B) "Historical data" means data that are more than five 20
years old. 21

        (C) "Naturally occurring condition" means any condition 22
affecting water quality that is not caused by human influence on 23
the environment, including, but not limited to, soils, geology, 24
hydrology, climate, wildlife, and water flow with specific 25
consideration given to seasonal and other natural variations. 26

        (D) "Qualified data collector" means an individual who meets 27
the requirements established in rules adopted under section 28
6111.53 of the Revised Code. 29

       Sec. 6111.51. (A)(1) The director of environmental protection 30
shall adopt rules that establish criteria for three levels of 31
credible data related to surface water monitoring and assessment. 32
The rules pertaining to each level shall establish requirements 33
for data assessment, sample collection and analytical methods, and 34
quality assurance and quality control procedures that must be 35
followed in order to classify data as credible at that level. The 36
rules shall provide that level three credible data are collected 37
by employing the most stringent methods and procedures, level two 38
credible data are collected using methods and procedures that are 39
less stringent than methods and procedures used to collect level 40
three credible data, but more stringent than methods and 41
procedures used to collect level one, and level one credible data 42
are collected by employing the least stringent methods and 43
procedures. 44

       The requirements established in the rules for each level of 45
credible data shall be commensurate with, and no more stringent 46
than necessary to support, the purposes for which the data will be 47
used. In adopting rules under this section, the director shall 48
consider the cost of data collection methods and procedures to 49
persons or entities collecting data, and the burden of compliance 50
with those methods and procedures for those persons or entities, 51
while ensuring the degree of accuracy commensurate with the 52
purpose for which the data will be used. No data shall be 53
classified as credible data unless they have been collected in 54
compliance with the applicable methods and procedures for 55
collecting the data established in rules adopted under this 56
section. 57

       (2) The director shall file the rules required to be adopted 58
under division (A)(1) of this section with the secretary of state, 59
the director of the legislative service commission, and the joint 60
committee on agency rule review in accordance with divisions (B) 61
and (H) of section 119.03 of the Revised Code not later than one 62
year after the effective date of this section. As soon as 63
practicable thereafter, the director shall proceed to adopt the 64
rules in accordance with all other applicable provisions of 65
Chapter 119. of the Revised Code. 66

       (B)(1) Level three credible data shall be used for the 67
purposes specified in section 6111.52 of the Revised Code. 68

       (2) Levels two and three credible data shall be used for the 69
purpose of evaluating the effectiveness of pollution controls for 70
point sources and nonpoint sources and initial screening of water 71
quality problems to determine if additional study is needed. 72

       (3) Levels one, two, and three credible data shall be used 73
for public awareness and education activities. 74

        (C) No data shall be considered credible unless the data 75
originate from studies and samples collected by the environmental 76
protection agency, its contractors, federal or state environmental 77
agencies, or qualified data collectors. However, data submitted 78
pursuant to the requirements of a permit issued by an agency of 79
the state or submitted as a result of findings and orders issued 80
by the director or pursuant to a court order shall be considered 81
credible unless the director identifies reasons why the data are 82
not credible. 83

        (D) If the director has obtained credible data for a surface 84
water, the director also may use historical data for the purpose 85
of determining whether any water quality trends exist for that 86
surface water. 87

        (E) Sections 6111.50 to 6111.56 of the Revised Code do not 88
apply to civil or criminal enforcement actions brought under 89
section 6111.07 of the Revised Code. 90

       (F) The director's use of credible data shall be consistent 91
with the Federal Water Pollution Control Act. 92

       Sec. 6111.52. The director of environmental protection shall 93
use only level three credible data to conduct any of the following 94
activities: 95

        (A) Developing, reviewing, and revising use designations in 96
water quality standards; 97

        (B) Developing a statewide water quality inventory or other 98
water assessment report; 99

        (C) Identifying, listing, and delisting waters of the state 100
for the purpose of section 303(d) of the Federal Water Pollution 101
Control Act; 102

        (D) Determining whether a water of the state is supporting 103
its designated use or other classification; 104

       (E) Establishing a total maximum daily load for a water of 105
the state. 106

       Sec. 6111.53. (A) The director of environmental protection 107
shall establish and maintain a water quality monitoring program to 108
collect levels one, two, and three credible data for surface water 109
monitoring and assessment. In the same manner provided in division 110
(A)(2) of section 6111.51 of the Revised Code, the director shall 111
adopt rules establishing the program. The rules shall describe the 112
training and experience that are required for a person to become a 113
qualified data collector in the program. The requirements shall be 114
commensurate with the type and level of data collected. The rules 115
shall require the training to include a thorough knowledge of 116
applicable sampling protocols and field methods so that the data 117
collection and interpretation are reproducible, scientifically 118
defensible, and free from preconceived bias. The rules shall 119
authorize individuals with the necessary academic credentials and 120
experience to train other persons to be qualified data collectors. 121

       The rules also shall require that the data collectors follow 122
plans containing data collection methods, sampling and analysis 123
methods, and quality assurance and quality control procedures that 124
comply with those established in rules adopted under section 125
6111.51 of the Revised Code. The rules shall require that the 126
plans contain the certification required under division (D) of 127
this section. Plans shall not be required under the rules for 128
credible data that are collected by the environmental protection 129
agency, its contractors, or federal or state environmental 130
agencies. Except as otherwise required by a permit issued by an 131
agency of the state, by findings and orders issued by the 132
director, or pursuant to a court order, plans shall not be 133
required under the rules for data that are submitted pursuant to 134
the requirements of the permit. The director may develop generic 135
plans or generic components of plans for use by qualified data 136
collectors. 137

        (B) A qualified data collector may submit credible data to 138
the director in accordance with a generic plan without submitting 139
a plan to the director for approval under division (C) of this 140
section. 141

        (C) In lieu of submitting data pursuant to a generic plan, a 142
qualified data collector who intends to submit credible data to 143
the director may submit a site-specific plan that complies with 144
the rules adopted under division (A) of this section. If a 145
qualified data collector will be assisted by other persons who are 146
not qualified data collectors, the plan shall include procedures 147
for the supervision of their work to ensure the accuracy of the 148
data collection. The plan shall identify whether the data to be 149
collected are level one, two, or three credible data. The director 150
shall review the plan to determine if it complies with the rules 151
adopted under division (A) of this section and with this division. 152
After reviewing the plan, the director shall either approve or 153
disapprove it. A plan that is not disapproved within sixty days 154
shall be considered to have been approved. 155

        (D) A person who chooses to submit data for consideration as 156
credible data shall document the person's status as a qualified 157
data collector, demonstrate compliance with a generic plan or a 158
site-specific plan, and certify to the best knowledge and belief 159
of the qualified data collector that the credible data were 160
collected in accordance with the procedures required by the plan 161
developed or approved under this section. The director shall not 162
consider data submitted by a qualified data collector that are not 163
accompanied by the certification required under this division. 164

       No person is required to submit any of the data collected 165
pursuant to a plan developed or approved under this section unless 166
submission of the data is otherwise required by law, but a person 167
submitting some data pursuant to such a plan shall submit all data 168
collected pursuant to the plan. 169

        (E) The director shall verify that a person submitting data 170
is a qualified data collector, review all data collected by a 171
qualified data collector, verify the accuracy of the data, and 172
determine that all components of the plan for the collection of 173
the data were followed. If the director determines that the data 174
are accurate and were collected by a qualified data collector in 175
accordance with required procedures, the director shall approve 176
the data as credible. The director shall provide the qualified 177
data collector with written notice informing the qualified data 178
collector as to whether the data have been approved, including the 179
level at which the data qualify as credible data. 180

        (F) The director shall retain all information submitted by a 181
qualified data collector for a period of not less than ten years 182
from the date of receipt. All information submitted is a public 183
record. 184

       Sec. 6111.54. Each state agency in possession of surface 185
water quality data shall submit the data to the environmental 186
protection agency in a format designated by the director of 187
environmental protection. Each such agency shall submit the data 188
to the director at the same time that the agency compiles or 189
summarizes the data for its own use, but at a minimum shall submit 190
the data to the director annually. If the director determines that 191
the data are accurate and were collected in accordance with the 192
rules adopted under section 6111.51 of the Revised Code, the 193
director shall approve the data as credible. 194

       Sec. 6111.55. Following the adoption of rules under sections 195
6111.51 and 6111.53 of the Revised Code, the director of 196
environmental protection shall establish and maintain a 197
computerized database or databases composed of all credible data 198
in the director's possession and shall make the data available to 199
other agencies and all other interested persons. The data shall be 200
stored in such a manner that they are easily retrieved and 201
analyzed and are available for sharing with other agencies and all 202
other interested persons. 203

       Sec. 6111.56. (A) If the source or sources of a pollutant 204
causing an impairment of a water of the state are unknown, the 205
water of the state may be identified and listed under section 206
303(d)of the Federal Water Pollution Control Act. However, the 207
director of environmental protection shall continue to monitor the 208
water of the state to determine the source or sources of the 209
impairment before a total maximum daily load is established for 210
the water of the state pursuant to that section. 211

       (B) The director shall not include a water of the state on a 212
list established under section 303(d) of the Federal Water 213
Pollution Control Act or establish a total maximum daily load for 214
a water of the state if the failure of the water of the state to 215
comply with an applicable water quality standard results solely 216
from the existence of a naturally occurring condition or 217
conditions. 218

        (C) The director shall establish narrative water quality 219
standards where numerical criteria cannot be established or to 220
supplement numerical criteria. 221

Section 1. That sections 6111.50, 6111.51, 6111.52, 6111.53,	5
6111.54, 6111.55, and 6111.56 of the Revised Code be enacted to	6
read as follows:	7

Sec. 6111.50. As used in sections 6111.50 to 6111.56 of the	8
Revised Code:	9

(A) "Credible data" means scientifically valid chemical,	10
physical, or biological water quality monitoring data concerning	11
surface waters, including qualitative scoring of physical habitat	12
characteristics and the sampling of fish, macroinvertebrates, and	13
water quality, that have been collected by or submitted to the	14
director of environmental protection and that comply with the	15
requirements established in rules adopted under section 6111.51 of	16
the Revised Code. "Credible data" may include historical data if	17
the director identifies compelling reasons as to why the data are	18
credible.	19

(B) "Historical data" means data that are more than five	20
years old.	21

(C) "Naturally occurring condition" means any condition	22
affecting water quality that is not caused by human influence on	23
the environment, including, but not limited to, soils, geology,	24
hydrology, climate, wildlife, and water flow with specific	25
consideration given to seasonal and other natural variations.	26

(D) "Qualified data collector" means an individual who meets	27
the requirements established in rules adopted under section	28
6111.53 of the Revised Code.	29

Sec. 6111.51. (A)(1) The director of environmental protection	30
shall adopt rules that establish criteria for three levels of	31
credible data related to surface water monitoring and assessment.	32
The rules pertaining to each level shall establish requirements	33
for data assessment, sample collection and analytical methods, and	34
quality assurance and quality control procedures that must be	35
followed in order to classify data as credible at that level. The	36
rules shall provide that level three credible data are collected	37
by employing the most stringent methods and procedures, level two	38
credible data are collected using methods and procedures that are	39
less stringent than methods and procedures used to collect level	40
three credible data, but more stringent than methods and	41
procedures used to collect level one, and level one credible data	42
are collected by employing the least stringent methods and	43
procedures.	44

The requirements established in the rules for each level of	45
credible data shall be commensurate with, and no more stringent	46
than necessary to support, the purposes for which the data will be	47
used. In adopting rules under this section, the director shall	48
consider the cost of data collection methods and procedures to	49
persons or entities collecting data, and the burden of compliance	50
with those methods and procedures for those persons or entities,	51
while ensuring the degree of accuracy commensurate with the	52
purpose for which the data will be used. No data shall be	53
classified as credible data unless they have been collected in	54
compliance with the applicable methods and procedures for	55
collecting the data established in rules adopted under this	56
section.	57

(2) The director shall file the rules required to be adopted	58
under division (A)(1) of this section with the secretary of state,	59
the director of the legislative service commission, and the joint	60
committee on agency rule review in accordance with divisions (B)	61
and (H) of section 119.03 of the Revised Code not later than one	62
year after the effective date of this section. As soon as	63
practicable thereafter, the director shall proceed to adopt the	64
rules in accordance with all other applicable provisions of	65
Chapter 119. of the Revised Code.	66

(B)(1) Level three credible data shall be used for the	67
purposes specified in section 6111.52 of the Revised Code.	68

(2) Levels two and three credible data shall be used for the	69
purpose of evaluating the effectiveness of pollution controls for	70
point sources and nonpoint sources and initial screening of water	71
quality problems to determine if additional study is needed.	72

(3) Levels one, two, and three credible data shall be used	73
for public awareness and education activities.	74

(C) No data shall be considered credible unless the data	75
originate from studies and samples collected by the environmental	76
protection agency, its contractors, federal or state environmental	77
agencies, or qualified data collectors. However, data submitted	78
pursuant to the requirements of a permit issued by an agency of	79
the state or submitted as a result of findings and orders issued	80
by the director or pursuant to a court order shall be considered	81
credible unless the director identifies reasons why the data are	82
not credible.	83

(D) If the director has obtained credible data for a surface	84
water, the director also may use historical data for the purpose	85
of determining whether any water quality trends exist for that	86
surface water.	87

(E) Sections 6111.50 to 6111.56 of the Revised Code do not	88
apply to civil or criminal enforcement actions brought under	89
section 6111.07 of the Revised Code.	90

(F) The director's use of credible data shall be consistent	91
with the Federal Water Pollution Control Act.	92

Sec. 6111.52. The director of environmental protection shall	93
use only level three credible data to conduct any of the following	94
activities:	95

(A) Developing, reviewing, and revising use designations in	96
water quality standards;	97

(B) Developing a statewide water quality inventory or other	98
water assessment report;	99

(C) Identifying, listing, and delisting waters of the state	100
for the purpose of section 303(d) of the Federal Water Pollution	101
Control Act;	102

(D) Determining whether a water of the state is supporting	103
its designated use or other classification;	104

(E) Establishing a total maximum daily load for a water of	105
the state.	106

Sec. 6111.53. (A) The director of environmental protection	107
shall establish and maintain a water quality monitoring program to	108
collect levels one, two, and three credible data for surface water	109
monitoring and assessment. In the same manner provided in division	110
(A)(2) of section 6111.51 of the Revised Code, the director shall	111
adopt rules establishing the program. The rules shall describe the	112
training and experience that are required for a person to become a	113
qualified data collector in the program. The requirements shall be	114
commensurate with the type and level of data collected. The rules	115
shall require the training to include a thorough knowledge of	116
applicable sampling protocols and field methods so that the data	117
collection and interpretation are reproducible, scientifically	118
defensible, and free from preconceived bias. The rules shall	119
authorize individuals with the necessary academic credentials and	120
experience to train other persons to be qualified data collectors.	121

The rules also shall require that the data collectors follow	122
plans containing data collection methods, sampling and analysis	123
methods, and quality assurance and quality control procedures that	124
comply with those established in rules adopted under section	125
6111.51 of the Revised Code. The rules shall require that the	126
plans contain the certification required under division (D) of	127
this section. Plans shall not be required under the rules for	128
credible data that are collected by the environmental protection	129
agency, its contractors, or federal or state environmental	130
agencies. Except as otherwise required by a permit issued by an	131
agency of the state, by findings and orders issued by the	132
director, or pursuant to a court order, plans shall not be	133
required under the rules for data that are submitted pursuant to	134
the requirements of the permit. The director may develop generic	135
plans or generic components of plans for use by qualified data	136
collectors.	137

(B) A qualified data collector may submit credible data to	138
the director in accordance with a generic plan without submitting	139
a plan to the director for approval under division (C) of this	140
section.	141

(C) In lieu of submitting data pursuant to a generic plan, a	142
qualified data collector who intends to submit credible data to	143
the director may submit a site-specific plan that complies with	144
the rules adopted under division (A) of this section. If a	145
qualified data collector will be assisted by other persons who are	146
not qualified data collectors, the plan shall include procedures	147
for the supervision of their work to ensure the accuracy of the	148
data collection. The plan shall identify whether the data to be	149
collected are level one, two, or three credible data. The director	150
shall review the plan to determine if it complies with the rules	151
adopted under division (A) of this section and with this division.	152
After reviewing the plan, the director shall either approve or	153
disapprove it. A plan that is not disapproved within sixty days	154
shall be considered to have been approved.	155

(D) A person who chooses to submit data for consideration as	156
credible data shall document the person's status as a qualified	157
data collector, demonstrate compliance with a generic plan or a	158
site-specific plan, and certify to the best knowledge and belief	159
of the qualified data collector that the credible data were	160
collected in accordance with the procedures required by the plan	161
developed or approved under this section. The director shall not	162
consider data submitted by a qualified data collector that are not	163
accompanied by the certification required under this division.	164

No person is required to submit any of the data collected	165
pursuant to a plan developed or approved under this section unless	166
submission of the data is otherwise required by law, but a person	167
submitting some data pursuant to such a plan shall submit all data	168
collected pursuant to the plan.	169

(E) The director shall verify that a person submitting data	170
is a qualified data collector, review all data collected by a	171
qualified data collector, verify the accuracy of the data, and	172
determine that all components of the plan for the collection of	173
the data were followed. If the director determines that the data	174
are accurate and were collected by a qualified data collector in	175
accordance with required procedures, the director shall approve	176
the data as credible. The director shall provide the qualified	177
data collector with written notice informing the qualified data	178
collector as to whether the data have been approved, including the	179
level at which the data qualify as credible data.	180

(F) The director shall retain all information submitted by a	181
qualified data collector for a period of not less than ten years	182
from the date of receipt. All information submitted is a public	183
record.	184