Am. H. B. No. 43 As Passed by the Senate

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, DeBose, Niehaus, Domenick, Book, Brown, Buehrer, Cates, Chandler, Cirelli, Clancy, Daniels, DeWine, Distel, D. Evans, Faber, Hoops, Hughes, Kearns, Key, S. Patton, T. Patton, Peterson, Raussen, Redfern, Reidelbach, Schlichter, Schneider, S. Smith, J. Stewart, Taylor, Trakas, Wagner, Widowfield, Yates

Senators Spada, Roberts, Robert Gardner, Hagan, Armbruster, Austria, Schuler, Mumper, DiDonato

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

       (G) Nothing in sections 6111.50 to 6111.56 of the Revised 93
Code is an exception to statutory, common, or municipal law of 94
trespass. 95

       Sec. 6111.52. The director of environmental protection shall 96
use only level three credible data to conduct any of the following 97
activities: 98

        (A) Developing, reviewing, and revising use designations in 99
water quality standards; 100

        (B) Developing a statewide water quality inventory or other 101
water assessment report; 102

        (C) Identifying, listing, and delisting waters of the state 103
for the purpose of section 303(d) of the Federal Water Pollution 104
Control Act; 105

        (D) Determining whether a water of the state is supporting 106
its designated use or other classification; 107

       (E) Establishing a total maximum daily load for a water of 108
the state. 109

       Sec. 6111.53. (A) The director of environmental protection 110
shall establish and maintain a water quality monitoring program to 111
collect levels one, two, and three credible data for surface water 112
monitoring and assessment. In the same manner provided in division 113
(A)(2) of section 6111.51 of the Revised Code, the director shall 114
adopt rules establishing the program. The rules shall describe the 115
training and experience that are required for a person to become a 116
qualified data collector in the program. The requirements shall be 117
commensurate with the type and level of data collected. The rules 118
shall require the training to include a thorough knowledge of 119
applicable sampling protocols and field methods so that the data 120
collection and interpretation are reproducible, scientifically 121
defensible, and free from preconceived bias. The rules shall 122
authorize individuals with the necessary academic credentials and 123
experience to train other persons to be qualified data collectors. 124

       The rules also shall require that the data collectors follow 125
plans containing data collection methods, sampling and analysis 126
methods, and quality assurance and quality control procedures that 127
comply with those established in rules adopted under section 128
6111.51 of the Revised Code. The rules shall require that the 129
plans contain the certification required under division (D) of 130
this section. Plans shall not be required under the rules for 131
credible data that are collected by the environmental protection 132
agency, its contractors, or federal or state environmental 133
agencies. Except as otherwise required by a permit issued by an 134
agency of the state, by findings and orders issued by the 135
director, or pursuant to a court order, plans shall not be 136
required under the rules for data that are submitted pursuant to 137
the requirements of the permit. The director may develop generic 138
plans or generic components of plans for use by qualified data 139
collectors. 140

        (B) A qualified data collector may submit credible data to 141
the director in accordance with a generic plan without submitting 142
a plan to the director for approval under division (C) of this 143
section. 144

        (C) In lieu of submitting data pursuant to a generic plan, a 145
qualified data collector who intends to submit credible data to 146
the director may submit a site-specific plan that complies with 147
the rules adopted under division (A) of this section. If a 148
qualified data collector will be assisted by other persons who are 149
not qualified data collectors, the plan shall include procedures 150
for the supervision of their work to ensure the accuracy of the 151
data collection. The plan shall identify whether the data to be 152
collected are level one, two, or three credible data. The director 153
shall review the plan to determine if it complies with the rules 154
adopted under division (A) of this section and with this division. 155
After reviewing the plan, the director shall either approve or 156
disapprove it. A plan that is not disapproved within sixty days 157
shall be considered to have been approved. 158

        (D) A person who chooses to submit data for consideration as 159
credible data shall document the person's status as a qualified 160
data collector, demonstrate compliance with a generic plan or a 161
site-specific plan, certify to the best knowledge and belief of 162
the qualified data collector that the credible data were collected 163
in accordance with the procedures required by the plan developed 164
or approved under this section, and certify that the person has 165
not been convicted of or pleaded guilty to a violation of section 166
2911.21 of the Revised Code or a substantially similar municipal 167
ordinance within the previous five years. The director shall not 168
consider data submitted by a qualified data collector that are not 169
accompanied by the certification required under this division. 170

       No person is required to submit any of the data collected 171
pursuant to a plan developed or approved under this section unless 172
submission of the data is otherwise required by law, but a person 173
submitting some data pursuant to such a plan shall submit all data 174
collected pursuant to the plan. 175

        (E) The director shall verify that a person submitting data 176
is a qualified data collector, review all data collected by a 177
qualified data collector, and determine that all components of the 178
plan for the collection of the data were followed. If the director 179
determines that the data were collected by a qualified data 180
collector in accordance with required procedures, the director 181
shall approve the data as credible. The director shall provide the 182
qualified data collector with written notice informing the 183
qualified data collector as to whether the data have been 184
approved, including the level at which the data qualify as 185
credible data. 186

        (F) The director shall retain all information submitted by a 187
qualified data collector for a period of not less than ten years 188
from the date of receipt. All information submitted is a public 189
record. 190

       Sec. 6111.54. Each state agency in possession of surface 191
water quality data shall submit the data to the environmental 192
protection agency in a format designated by the director of 193
environmental protection. Each such agency shall submit the data 194
to the director at the same time that the agency compiles or 195
summarizes the data for its own use, but at a minimum shall submit 196
the data to the director annually. If the director determines that 197
the data were collected in accordance with the rules adopted under 198
section 6111.51 of the Revised Code, the director shall approve 199
the data as credible. 200

       Sec. 6111.55. Following the adoption of rules under sections 201
6111.51 and 6111.53 of the Revised Code, the director of 202
environmental protection shall establish and maintain a 203
computerized database or databases composed of all credible data 204
in the director's possession and shall make the data available to 205
other agencies and all other interested persons. The data shall be 206
stored in such a manner that they are easily retrieved and 207
analyzed and are available for sharing with other agencies and all 208
other interested persons. 209

       Sec. 6111.56. (A) If the source or sources of a pollutant 210
causing an impairment of a water of the state are unknown, the 211
water of the state may be identified and listed under section 212
303(d)of the Federal Water Pollution Control Act. However, the 213
director of environmental protection shall continue to monitor the 214
water of the state to determine the source or sources of the 215
impairment before a total maximum daily load is established for 216
the water of the state pursuant to that section. 217

       (B) The director shall not include a water of the state on a 218
list established under section 303(d) of the Federal Water 219
Pollution Control Act or establish a total maximum daily load for 220
a water of the state if the failure of the water of the state to 221
comply with an applicable water quality standard results solely 222
from the existence of a naturally occurring condition or 223
conditions. 224

        (C) The director shall establish narrative water quality 225
standards where numerical criteria cannot be established or to 226
supplement numerical criteria. 227

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

(G) Nothing in sections 6111.50 to 6111.56 of the Revised	93
Code is an exception to statutory, common, or municipal law of	94
trespass.	95

Sec. 6111.52. The director of environmental protection shall	96
use only level three credible data to conduct any of the following	97
activities:	98

(A) Developing, reviewing, and revising use designations in	99
water quality standards;	100

(B) Developing a statewide water quality inventory or other	101
water assessment report;	102

(C) Identifying, listing, and delisting waters of the state	103
for the purpose of section 303(d) of the Federal Water Pollution	104
Control Act;	105

(D) Determining whether a water of the state is supporting	106
its designated use or other classification;	107

(E) Establishing a total maximum daily load for a water of	108
the state.	109

Sec. 6111.53. (A) The director of environmental protection	110
shall establish and maintain a water quality monitoring program to	111
collect levels one, two, and three credible data for surface water	112
monitoring and assessment. In the same manner provided in division	113
(A)(2) of section 6111.51 of the Revised Code, the director shall	114
adopt rules establishing the program. The rules shall describe the	115
training and experience that are required for a person to become a	116
qualified data collector in the program. The requirements shall be	117
commensurate with the type and level of data collected. The rules	118
shall require the training to include a thorough knowledge of	119
applicable sampling protocols and field methods so that the data	120
collection and interpretation are reproducible, scientifically	121
defensible, and free from preconceived bias. The rules shall	122
authorize individuals with the necessary academic credentials and	123
experience to train other persons to be qualified data collectors.	124

The rules also shall require that the data collectors follow	125
plans containing data collection methods, sampling and analysis	126
methods, and quality assurance and quality control procedures that	127
comply with those established in rules adopted under section	128
6111.51 of the Revised Code. The rules shall require that the	129
plans contain the certification required under division (D) of	130
this section. Plans shall not be required under the rules for	131
credible data that are collected by the environmental protection	132
agency, its contractors, or federal or state environmental	133
agencies. Except as otherwise required by a permit issued by an	134
agency of the state, by findings and orders issued by the	135
director, or pursuant to a court order, plans shall not be	136
required under the rules for data that are submitted pursuant to	137
the requirements of the permit. The director may develop generic	138
plans or generic components of plans for use by qualified data	139
collectors.	140

(B) A qualified data collector may submit credible data to	141
the director in accordance with a generic plan without submitting	142
a plan to the director for approval under division (C) of this	143
section.	144

(C) In lieu of submitting data pursuant to a generic plan, a	145
qualified data collector who intends to submit credible data to	146
the director may submit a site-specific plan that complies with	147
the rules adopted under division (A) of this section. If a	148
qualified data collector will be assisted by other persons who are	149
not qualified data collectors, the plan shall include procedures	150
for the supervision of their work to ensure the accuracy of the	151
data collection. The plan shall identify whether the data to be	152
collected are level one, two, or three credible data. The director	153
shall review the plan to determine if it complies with the rules	154
adopted under division (A) of this section and with this division.	155
After reviewing the plan, the director shall either approve or	156
disapprove it. A plan that is not disapproved within sixty days	157
shall be considered to have been approved.	158

(D) A person who chooses to submit data for consideration as	159
credible data shall document the person's status as a qualified	160
data collector, demonstrate compliance with a generic plan or a	161
site-specific plan, certify to the best knowledge and belief of	162
the qualified data collector that the credible data were collected	163
in accordance with the procedures required by the plan developed	164
or approved under this section, and certify that the person has	165
not been convicted of or pleaded guilty to a violation of section	166
2911.21 of the Revised Code or a substantially similar municipal	167
ordinance within the previous five years. The director shall not	168
consider data submitted by a qualified data collector that are not	169
accompanied by the certification required under this division.	170

No person is required to submit any of the data collected	171
pursuant to a plan developed or approved under this section unless	172
submission of the data is otherwise required by law, but a person	173
submitting some data pursuant to such a plan shall submit all data	174
collected pursuant to the plan.	175

(E) The director shall verify that a person submitting data	176
is a qualified data collector, review all data collected by a	177
qualified data collector, and determine that all components of the	178
plan for the collection of the data were followed. If the director	179
determines that the data were collected by a qualified data	180
collector in accordance with required procedures, the director	181
shall approve the data as credible. The director shall provide the	182
qualified data collector with written notice informing the	183
qualified data collector as to whether the data have been	184
approved, including the level at which the data qualify as	185
credible data.	186