As Introduced

127th General Assembly Regular Session 2007-2008

H. B. No. 298

Representative Skindell 

Cosponsors: Representatives Ujvagi, Foley, Stewart, D., Letson, Koziura, McGregor, J., Yuko, Celeste, Okey, Brady, Chandler, Luckie, Sayre, Fende 

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A BILL

To enact sections 1535.01 to 1535.07 of the Revised

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Code to establish requirements governing

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oceangoing vessels on the state waters of Lake

3

Erie in order to control aquatic nuisance species.

4

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

Section 1. That sections 1535.01, 1535.02, 1535.03, 1535.04,	5
1535.05, 1535.06, and 1535.07 of the Revised Code be enacted to	6
read as follows:	7

Sec. 1535.01.  As used in this chapter:

8

(A) "Aquatic nuisance species" means a nonindigenous species	9
that threatens the diversity or abundance of native species in or	10
the ecological stability of infested waters or commercial,	11
agricultural, aquacultural, or recreational activities that are	12
dependent on such waters.	13

(B) "Ballast tank" means a tank or hold on an oceangoing	14
vessel that is used for carrying ballast water regardless of	15
whether the tank or hold was designed for that purpose.	16

(C) "Ballast water" means water and suspended matter that are	17
taken on board an oceangoing vessel to control or maintain trim,	18
draught, stability, or stresses of the vessel regardless of how	19
the water and suspended matter are carried.	20

(D) "Environmentally sound technology and methods" means the	21
best available technology, methods, efforts, actions, or programs	22
to prevent introductions or control infestations of aquatic	23
nuisance species that minimize adverse impacts to the structure	24
and function of an ecosystem and adverse effects on nontarget	25
organisms and ecosystems and that emphasize integrated pest	26
management techniques and nonchemical measures.	27

(E) "Oceangoing vessel" means a vessel that operates outside	28
the waters of Lake Michigan, Lake Superior, Lake Huron, and Lake	29
Erie and their tributaries.	30

(F) "Person" includes an individual, partnership,	31
copartnership, firm, company, limited liability company,	32
corporation, association, joint stock company, trust, estate, or	33
other legal entity, or the legal representative or agent of such	34
an entity, that operates oceangoing vessels on the state waters of	35
Lake Erie or that owns such vessels.	36

(G) "Rule" means a rule adopted under section 1535.03 of the	37
Revised Code.	38

(H) "Sediment" means matter that settles out of ballast water	39
within the ballast tank of an oceangoing vessel.	40

(I) "State waters of Lake Erie" means the waters under the	41
jurisdiction of this state in Lake Erie and waters that discharge,	42
flow, or otherwise are transferred into that portion of Lake Erie.	43

(J) "Vector" means the pathway and mechanism of entry for	44
aquatic nuisance species into the state waters of Lake Erie.	45

Sec. 1535.02.  (A)(1) Not later than twelve months after the	46
effective date of this section, the chief of the division of	47
wildlife shall establish a program for the issuance of permits	48
under this section.	49

(2) On and after the effective date of rules adopted by the	50
chief, no person shall operate an oceangoing vessel that is	51
capable of discharging ballast water on the state waters of Lake	52
Erie without a permit issued by the chief under this section.	53

(B) The chief or the chief's authorized representative may	54
assist an applicant for a permit during the application process by	55
providing guidance and technical assistance.	56

(C) An applicant for a permit shall submit an application to	57
the chief on a form that the chief prescribes and provides,	58
accompanied by a permit fee in an amount specified by rule. The	59
applicant shall submit with the application a signed affidavit	60
verifying that the applicant's oceangoing vessel is in compliance	61
with the performance standards established in rules.	62

(D) Upon receipt of a complete application, permit fee, and	63
signed affidavit, the chief shall issue or deny a permit. If the	64
chief issues a permit, the permit shall include an identification	65
number that is unique to that permit and terms that are necessary	66
to ensure compliance with this chapter and rules. The chief shall	67
issue a permit for an oceangoing vessel only if the operator who	68
applies for the permit can demonstrate either that the oceangoing	69
vessel will not discharge ballast water or other waste or effluent	70
or, if the oceangoing vessel discharges ballast water or other	71
waste or effluent, that the operator of the oceangoing vessel will	72
utilize environmentally sound technology and methods, as	73
identified in rules, that can be used to prevent the discharge of	74
aquatic nuisance species. In addition, the chief shall deny a	75
permit if the application contains misleading or false	76
information. Additional grounds for denial of a permit shall be	77
established in rules.	78

(E) A permit is valid for one year and may be renewed. An	79
application for renewal of a permit shall be submitted to the	80
chief at least one hundred eighty days prior to the expiration	81
date of the permit and shall comply with the requirements	82
governing applications for permits that are established in this	83
section and in rules.	84

(F) The chief may modify, suspend, or revoke a permit in	85
accordance with rules.	86

(G) No person that is issued a permit under this section	87
shall violate the terms of the permit, including, but not limited	88
to, any requirement in the permit that the person utilize	89
environmentally sound technology and methods to prevent the	90
discharge of aquatic nuisance species.	91

Sec. 1535.03.  (A) Not later than twelve months after the	92
effective date of this section, the chief of the division of	93
wildlife shall adopt rules in accordance with Chapter 119. of the	94
Revised Code that do all of the following:	95

(1) Identify aquatic nuisance species for the purposes of	96
this chapter;	97

(2) Establish all of the following concerning permits that	98
are issued under section 1535.02 of the Revised Code:	99

(a) The amount of the fee for a permit;

100

(b) Procedures for the issuance, denial, modification,	101
renewal, suspension, and revocation of permits;	102

(c) Requirements governing the modification of permits;

103

(d) Grounds for the denial, suspension, or revocation of	104
permits in addition to the grounds established in division (D) of	105
section 1535.02 of the Revised Code.	106

(3) Establish performance standards for ballast water	107
discharge and the management of other vectors of aquatic nuisance	108
species introduced from oceangoing vessels, including sea chests,	109
anchor chains, hull fouling, and sediment in ballast tanks, for	110
the purpose of eliminating the risk of introduction of plant,	111
animal, and human pathogens into the state waters of Lake Erie.	112
The standards shall identify environmentally sound technology and	113
methods that shall be used to prevent the discharge of aquatic	114
nuisance species.	115

(4) Establish a system of inspections to be conducted by the	116
division of wildlife to ensure that oceangoing vessels comply with	117
the rules adopted under division (A)(3) of this section. The rules	118
shall include requirements for sampling of water or sediment,	119
whichever is applicable, in ballast tanks, sea chests, anchor	120
chains, hulls, and any other locations on an oceangoing vessel	121
that the chief determines are necessary. The rules also shall	122
establish requirements governing the imposition of inspection fees	123
on oceangoing vessels that are subject to inspection.	124

(5) Establish the amount of the civil penalty that may be	125
assessed under section 1535.06 of the Revised Code. The amount of	126
the penalty shall be not less than twenty-five thousand dollars	127
for each violation.	128

(6) Establish any other requirements and procedures that the	129
chief determines are necessary to administer and enforce this	130
chapter.	131

(B) In adopting rules under this section, the chief shall	132
consult with the other states and Canadian provinces that border	133
the Great Lakes in an effort to ensure uniform regulatory policies	134
among the states and provinces.	135

(C) Beginning January 1, 2008, the chief, at least every	136
three years, shall review the rules adopted under division (A)(3)	137
of this section to determine whether the performance standards	138
established in those rules have prevented the introduction into	139
and the reduction of the spread of aquatic nuisance species within	140
the state waters of Lake Erie. If the chief determines that the	141
performance standards have not prevented the introduction into and	142
the reduction of the spread of aquatic nuisance species within the	143
state waters of Lake Erie, the chief may adopt revised rules that	144
establish alternative performance standards.	145

(D) No person shall violate a rule adopted under this	146
section.	147

Sec. 1535.04. In order to address discharges of aquatic	148
nuisance species from oceangoing vessels that damage water	149
quality, aquatic habitat, or fish or wildlife, the chief of the	150
division of wildlife shall facilitate the formation of a Great	151
Lakes aquatic nuisance species coalition. The Great Lakes aquatic	152
nuisance species coalition shall be formed through an agreement	153
entered into with other states in the Great Lakes basin and with	154
Canadian Great Lakes provinces. The purpose of the coalition shall	155
be to recommend and implement on a basin-wide basis water	156
pollution control laws that prohibit the discharge of aquatic	157
nuisance species into the Great Lakes from oceangoing vessels. The	158
chief shall attempt to enter into the agreement so that the	159
agreement is effective not later than twelve months after the	160
effective date of this section. The chief shall consult with other	161
appropriate state and federal agencies prior to entering into the	162
agreement, including, but not limited to, the environmental	163
protection agency and the United States environmental protection	164
agency.	165

Sec. 1535.05. The chief of the division of wildlife shall	166
cooperate to the fullest extent practicable with other Great Lakes	167
basin states, the Canadian Great Lakes provinces, the Great Lakes	168
panel on aquatic nuisance species, the Great Lakes fishery	169
commission, the international joint commission, and the Great	170
Lakes commission to ensure development of standards for the	171
control of aquatic nuisance species that are broadly protective of	172
the waters of the state and other natural resources.	173

Sec. 1535.06.  (A) The chief of the division of wildlife may	174
request the attorney general, in writing, to bring an action for a	175
civil penalty in a court of competent jurisdiction against any	176
person who has violated or is violating this chapter or a rule	177
adopted or a term of a permit issued under it. The court may	178
impose on the person a civil penalty in the amount established in	179
rules.	180

(B)(1) A person may bring a civil action for a violation of	181
this chapter or a rule adopted or permit issued under it on behalf	182
of the person or on behalf of the state. A person may not bring an	183
action under this division against the state or a political	184
subdivision, a department, board, office, commission, agency,	185
institution, or other instrumentality of the state or a political	186
subdivision, or an officer or employee of the state or a political	187
subdivision.	188

(2) A copy of the complaint and written disclosure of	189
substantially all material evidence and information that the	190
person possesses shall be served on the attorney general pursuant	191
to Civil Rule 4.2(J). The complaint shall be filed in camera,	192
shall remain under seal for at least sixty days, and shall not be	193
served on the defendant until the court so orders. The state may	194
elect to intervene and proceed with the action within sixty days	195
after it receives both the complaint and the material evidence and	196
information.	197

(3) The state, for good cause shown, may file motions with	198
the court requesting extensions of the time during which the	199
complaint remains under seal. Such a motion may be supported by	200
affidavits or other submissions in camera. The defendant shall not	201
be required to respond to a complaint filed under this division	202
until twenty-eight days after the complaint is unsealed and served	203
on the defendant pursuant to Civil Rule 4.	204

(4) Before the expiration of the sixty-day period established	205
under division (B)(2) of this section or any extensions obtained	206
under division (B)(3) of this section, the state shall either	207
proceed with the action or notify the court that it declines to	208
proceed with the action. If the state proceeds with the action,	209
the state shall conduct the action. If the state declines to	210
proceed with the action, the person bringing the action has the	211
right to conduct the action.	212

(5) When a person brings an action under division (B)(1) of	213
this section, no person other than the state may intervene or	214
bring a related action based on the facts underlying that pending	215
action.	216

(C)(1) If the state proceeds with an action under division	217
(B) of this section, it has the primary responsibility for	218
prosecuting the action and is not bound by an action of the person	219
bringing the action. The person bringing the action has the right	220
to continue as a party to the action, subject to the limitations	221
established in division (C)(2) of this section.	222

(2)(a) The state may dismiss an action brought under division	223
(B) of this section notwithstanding the objections of the person	224
initiating the action if the person has been notified by the state	225
of the filing of the motion to dismiss and the court has provided	226
the person with an opportunity for a hearing on the motion.	227

(b) The state may settle an action brought under division (B)	228
of this section with the defendant notwithstanding the objections	229
of the person initiating the action if the court determines, after	230
a hearing, that the proposed settlement is fair, adequate, and	231
reasonable under all the circumstances. Upon a showing of good	232
cause, the court may hold the hearing in camera.	233

(c) Upon a showing by the state that unrestricted	234
participation during the course of the litigation by the person	235
initiating the action would interfere with or unduly delay the	236
state's prosecution of the case or would be repetitious,	237
irrelevant, or for purposes of harassment, the court, in its	238
discretion, may impose limitations on the person's participation,	239
including, but not limited to, all of the following:	240

(i) Limiting the number of witnesses that the person may	241
call;	242

(ii) Limiting the length of the testimony of witnesses;

243

(iii) Limiting the person's cross-examination of witnesses;

244

(iv) Otherwise limiting the participation by the person in	245
the litigation.	246

(d) Upon a showing by the defendant that unrestricted	247
participation during the course of the litigation by the person	248
initiating an action under division (B) of this section would be	249
for purposes of harassment or would cause the defendant undue	250
burden or unnecessary expense, the court may limit participation	251
by the person initiating the action in the litigation.	252

(3) If the state declines to proceed with an action brought	253
by a person under division (B) of this section and the person	254
conducts the action, the state may request to be served with	255
copies of all pleadings filed in the action and to be supplied	256
with copies of all deposition transcripts at the state's expense.	257
When the person proceeds with the action, the court, without	258
limiting the status and rights of the person initiating the	259
action, may permit the state to intervene at a later date upon a	260
showing of good cause.	261

(4) Whether or not the state proceeds with the action, upon a	262
showing by the state that certain discovery by the person	263
initiating the action would interfere with the state's	264
investigation or prosecution of a civil matter arising out of the	265
same facts, the court may stay that discovery for a period of not	266
more than sixty days. The showing shall be conducted in camera.	267
The court may extend the sixty-day period upon a further showing	268
in camera that the state has pursued the criminal or civil	269
investigation or proceedings with reasonable diligence and any	270
proposed discovery in the civil action will interfere with the	271
ongoing criminal or civil investigation or proceedings.	272

(D)(1) Except as otherwise provided in this division, if the	273
state proceeds with an action brought by a person under division	274
(B) of this section, the person shall receive at least fifteen per	275
cent, but not more than twenty-five per cent of the proceeds of	276
the action or settlement of the claim, depending on the extent to	277
which the person substantially contributed to the prosecution of	278
the action. If the action is one that the court finds to be based	279
primarily on disclosures of specific information, other than	280
information provided by the person bringing the action, the court	281
may award the sums that it considers appropriate, but in no case	282
more than ten per cent of the proceeds, taking into account the	283
significance of the information and the role of the person	284
bringing the action in advancing the case to litigation. Any	285
payment to a person under this division shall be made from the	286
proceeds. The person shall also receive an amount for reasonable	287
expenses that the court finds to have been necessarily incurred	288
plus reasonable attorney's fees and costs. All expenses, fees, and	289
costs shall be awarded against the defendant.	290

(2) If the state does not proceed with an action brought by a	291
person under division (B) of this section, the person bringing the	292
action or settling the claim shall receive an amount that the	293
court decides is reasonable for collecting the civil penalty and	294
damages. The amount shall be not less than twenty-five per cent	295
and not more than thirty per cent of the proceeds of the action or	296
settlement and shall be paid out of the proceeds. The person also	297
shall receive an amount for reasonable expenses that the court	298
finds to have been necessarily incurred plus reasonable attorney's	299
fees and costs. All expenses, fees, and costs shall be awarded	300
against the defendant.	301

(3) If the state does not proceed with the action and the	302
person bringing the action conducts the action, the court may	303
award to the defendant its reasonable attorney's fees and expenses	304
if the defendant prevails in the action and the court finds that	305
the claim of the person bringing the action was clearly frivolous,	306
clearly vexatious, or brought primarily for purposes of	307
harassment.	308

(E)(1) A person may not bring an action under division (B) of	309
this section that is based on allegations or transactions that are	310
the subject of a civil action proceeding in which the state is	311
already a party.	312

(2) A person may not bring an action under this section that	313
is based on the public disclosure of allegations or transactions	314
in a criminal, civil, legislative, or administrative hearing,	315
report, audit, or investigation, or from the news media, unless	316
the person bringing the action has direct and independent	317
knowledge of the information on which the allegations are based	318
and has voluntarily provided the information to the state before	319
filing an action based on the information under this section. This	320
division does not apply to the bringing of an action by the state.	321

(F) The state is not liable for expenses that a person incurs	322
in bringing an action under this section.	323

Sec. 1535.07.  (A) All money collected by the chief of the	324
division of wildlife under this chapter and all money from actions	325
brought under section 1535.06 of the Revised Code shall be	326
deposited in the state treasury to the credit of the aquatic	327
nuisance species prevention fund, which is hereby created in the	328
state treasury. All investment earnings of the fund shall be	329
credited to the fund.	330

(B) Money in the fund shall be used by the chief for all of	331
the following:	332

(1) Prevention of the introduction of aquatic nuisance	333
species into the state waters of Lake Erie;	334

(2) Control of the spread of aquatic nuisance species that	335
exist in the state waters of Lake Erie prior to the effective date	336
of this section;	337

(3) Reclamation of aquatic resources in the state that have	338
been injured as a result of aquatic nuisance species;	339

(4) The administration of this chapter and rules adopted	340
under it.	341