As Introduced

128th General Assembly Regular Session 2009-2010

S. B. No. 27

Senator Miller, D. 

Cosponsors: Senators Turner, Fedor, Sawyer, Wagoner 

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A BILL

To enact sections 6111.60 to 6111.66 of the Revised

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Code to establish requirements governing

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oceangoing vessels on the state waters of Lake

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Erie in order to control aquatic nuisance species.

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

Section 1. That sections 6111.60, 6111.61, 6111.62, 6111.63,	5
6111.64, 6111.65, and 6111.66 of the Revised Code be enacted to	6
read as follows:	7

Sec. 6111.60.  As used in sections 6111.60 to 6111.66 of the	8
Revised Code:	9

(A) "Aquatic nuisance species" means a nonindigenous species	10
that threatens the diversity or abundance of native species in or	11
the ecological stability of infested waters or commercial,	12
agricultural, aquacultural, or recreational activities that are	13
dependent on such waters.	14

(B) "Ballast tank" means a tank or hold on an oceangoing	15
vessel that is used for carrying ballast water regardless of	16
whether the tank or hold was designed for that purpose.	17

(C) "Ballast water" means water and suspended matter that are	18
taken on board an oceangoing vessel to control or maintain trim,	19
draught, stability, or stresses of the vessel regardless of how	20
the water and suspended matter are carried.	21

(D) "Environmentally sound technology and methods" means the	22
best available technology, methods, efforts, actions, or programs	23
to prevent introductions or control infestations of aquatic	24
nuisance species that minimize adverse impacts to the structure	25
and function of an ecosystem and adverse effects on nontarget	26
organisms and ecosystems and that emphasize integrated pest	27
management techniques and nonchemical measures.	28

(E) "Oceangoing vessel" means a vessel that operates outside	29
the waters of Lake Michigan, Lake Superior, Lake Huron, and Lake	30
Erie and their tributaries.	31

(F) "Person" includes an individual, partnership,	32
copartnership, firm, company, limited liability company,	33
corporation, association, joint stock company, trust, estate, or	34
other legal entity, or the legal representative or agent of such	35
an entity, that operates oceangoing vessels on the state waters of	36
Lake Erie or that owns such vessels.	37

(G) "Rule" means a rule adopted under section 6111.62 of the	38
Revised Code.	39

(H) "Sediment" means matter that settles out of ballast water	40
within the ballast tank of an oceangoing vessel.	41

(I) "State waters of Lake Erie" means the waters under the	42
jurisdiction of this state in Lake Erie and waters that discharge,	43
flow, or otherwise are transferred into that portion of Lake Erie.	44

(J) "Vector" means the pathway and mechanism of entry for	45
aquatic nuisance species into the state waters of Lake Erie.	46

Sec. 6111.61.  (A)(1) Not later than twelve months after the	47
effective date of this section, the director of environmental	48
protection shall establish a program for the issuance of permits	49
under this section.	50

(2) On and after the effective date of rules adopted by the	51
director, no person shall operate an oceangoing vessel that is	52
capable of discharging ballast water on the state waters of Lake	53
Erie without a permit issued by the director under this section.	54

(B) The director or the director's authorized representative	55
may assist an applicant for a permit during the application	56
process by providing guidance and technical assistance.	57

(C) An applicant for a permit shall submit an application to	58
the director on a form that the director prescribes and provides,	59
accompanied by a permit fee in an amount specified by rule. The	60
applicant shall submit with the application a signed affidavit	61
verifying that the applicant's oceangoing vessel is in compliance	62
with the performance standards established in rules.	63

(D) Upon receipt of a complete application, permit fee, and	64
signed affidavit, the director shall issue or deny a permit. If	65
the director issues a permit, the permit shall include an	66
identification number that is unique to that permit and terms	67
that are necessary to ensure compliance with sections 6111.60 to	68
6111.66 of the Revised Code and rules. The director shall issue a	69
permit for an oceangoing vessel only if the operator who applies	70
for the permit can demonstrate either that the oceangoing vessel	71
will not discharge ballast water or other waste or effluent or,	72
if the oceangoing vessel discharges ballast water or other waste	73
or effluent, that the operator of the oceangoing vessel will	74
utilize environmentally sound technology and methods, as	75
identified in rules, that can be used to prevent the discharge of	76
aquatic nuisance species. In addition, the director shall deny a	77
permit if the application contains misleading or false	78
information. Additional grounds for denial of a permit shall be	79
established in rules.	80

(E) A permit is valid for one year and may be renewed. An	81
application for renewal of a permit shall be submitted to the	82
director at least one hundred eighty days prior to the expiration	83
date of the permit and shall comply with the requirements	84
governing applications for permits that are established in this	85
section and in rules.	86

(F) The director may modify, suspend, or revoke a permit in	87
accordance with rules.	88

(G) No person that is issued a permit under this section	89
shall violate the terms of the permit, including, but not limited	90
to, any requirement in the permit that the person utilize	91
environmentally sound technology and methods to prevent the	92
discharge of aquatic nuisance species.	93

Sec. 6111.62.  (A) Not later than twelve months after the	94
effective date of this section, the director of environmental	95
protection shall adopt rules in accordance with Chapter 119. of	96
the Revised Code that do all of the following:	97

(1) Identify aquatic nuisance species for the purposes of	98
sections 6111.60 to 6111.66 of the Revised Code;	99

(2) Establish all of the following concerning permits that	100
are issued under section 6111.61 of the Revised Code:	101

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

102

(b) Procedures for the issuance, denial, modification,	103
renewal, suspension, and revocation of permits;	104

(c) Requirements governing the modification of permits;

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(d) Grounds for the denial, suspension, or revocation of	106
permits in addition to the grounds established in division (D) of	107
section 6111.61 of the Revised Code.	108

(3) Establish performance standards for ballast water	109
discharge and the management of other vectors of aquatic nuisance	110
species introduced from oceangoing vessels, including sea chests,	111
anchor chains, hull fouling, and sediment in ballast tanks, for	112
the purpose of eliminating the risk of introduction of plant,	113
animal, and human pathogens into the state waters of Lake Erie.	114
The standards shall identify environmentally sound technology and	115
methods that shall be used to prevent the discharge of aquatic	116
nuisance species.	117

(4) Establish a system of inspections to be conducted by the	118
environmental protection agency to ensure that oceangoing vessels	119
comply with the rules adopted under division (A)(3) of this	120
section. The rules shall include requirements for sampling of	121
water or sediment, whichever is applicable, in ballast tanks, sea	122
chests, anchor chains, hulls, and any other locations on an	123
oceangoing vessel that the director determines are necessary. The	124
rules also shall establish requirements governing the imposition	125
of inspection fees on oceangoing vessels that are subject to	126
inspection.	127

(5) Establish the amount of the civil penalty that may be	128
assessed under section 6111.65 of the Revised Code. The amount of	129
the penalty shall be not less than twenty-five thousand dollars	130
for each violation.	131

(6) Establish any other requirements and procedures that the	132
director determines are necessary to administer and enforce	133
sections 6111.60 to 6111.66 of the Revised Code.	134

(B) In adopting rules under this section, the director shall	135
consult with the other states and Canadian provinces that border	136
the great lakes in an effort to ensure uniform regulatory policies	137
among the states and provinces.	138

(C) Beginning January 1, 2010, the director, at least every	139
three years, shall review the rules adopted under division (A)(3)	140
of this section to determine whether the performance standards	141
established in those rules have prevented the introduction into	142
and the reduction of the spread of aquatic nuisance species within	143
the state waters of Lake Erie. If the director determines that the	144
performance standards have not prevented the introduction into and	145
the reduction of the spread of aquatic nuisance species within the	146
state waters of Lake Erie, the director may adopt revised rules	147
that establish alternative performance standards.	148

(D) No person shall violate a rule adopted under this	149
section.	150

Sec. 6111.63. In order to address discharges of aquatic	151
nuisance species from oceangoing vessels that damage water	152
quality, aquatic habitat, or fish or wildlife, the director of	153
environmental protection shall facilitate the formation of a great	154
lakes aquatic nuisance species coalition. The great lakes aquatic	155
nuisance species coalition shall be formed through an agreement	156
entered into with other states in the great lakes basin and with	157
Canadian great lakes provinces. The purpose of the coalition shall	158
be to recommend and implement on a basin-wide basis water	159
pollution control laws that prohibit the discharge of aquatic	160
nuisance species into the great lakes from oceangoing vessels. The	161
director shall attempt to enter into the agreement so that the	162
agreement is effective not later than twelve months after the	163
effective date of this section. The director shall consult with	164
other appropriate state and federal agencies prior to entering	165
into the agreement, including, but not limited to, the department	166
of natural resources and the United States environmental	167
protection agency.	168

Sec. 6111.64. The director of environmental protection shall	169
cooperate to the fullest extent practicable with other great lakes	170
basin states, the Canadian great lakes provinces, the great lakes	171
panel on aquatic nuisance species, the great lakes fishery	172
commission, the international joint commission, and the great	173
lakes commission to ensure development of standards for the	174
control of aquatic nuisance species that are broadly protective of	175
the waters of the state and other natural resources.	176

Sec. 6111.65.  (A) The director of environmental protection	177
may request the attorney general, in writing, to bring an action	178
for a civil penalty in a court of competent jurisdiction against	179
any person who has violated or is violating sections 6111.60 to	180
6111.66 of the Revised Code or a rule adopted or a term of a	181
permit issued under them. The court may impose on the person a	182
civil penalty in the amount established in rules.	183

(B)(1) A person may bring a civil action for a violation of	184
sections 6111.60 to 6111.66 of the Revised Code or a rule adopted	185
or permit issued under them on behalf of the person or on behalf	186
of the state. A person may not bring an action under this	187
division against the state or a political subdivision, a	188
department, board, office, commission, agency, institution, or	189
other instrumentality of the state or a political subdivision, or	190
an officer or employee of the state or a political subdivision.	191

(2) A copy of the complaint and written disclosure of	192
substantially all material evidence and information that the	193
person possesses shall be served on the attorney general pursuant	194
to Civil Rule 4.2(J). The complaint shall be filed in camera,	195
shall remain under seal for at least sixty days, and shall not be	196
served on the defendant until the court so orders. The state may	197
elect to intervene and proceed with the action within sixty days	198
after it receives both the complaint and the material evidence and	199
information.	200

(3) The state, for good cause shown, may file motions with	201
the court requesting extensions of the time during which the	202
complaint remains under seal. Such a motion may be supported by	203
affidavits or other submissions in camera. The defendant shall not	204
be required to respond to a complaint filed under this division	205
until twenty-eight days after the complaint is unsealed and served	206
on the defendant pursuant to Civil Rule 4.	207

(4) Before the expiration of the sixty-day period established	208
in division (B)(2) of this section or any extensions obtained	209
under division (B)(3) of this section, the state shall either	210
proceed with the action or notify the court that it declines to	211
proceed with the action. If the state proceeds with the action,	212
the state shall conduct the action. If the state declines to	213
proceed with the action, the person bringing the action has the	214
right to conduct the action.	215

(5) When a person brings an action under division (B)(1) of	216
this section, no person other than the state may intervene or	217
bring a related action based on the facts underlying that pending	218
action.	219

(C)(1) If the state proceeds with an action under division	220
(B) of this section, it has the primary responsibility for	221
prosecuting the action and is not bound by an action of the person	222
bringing the action. The person bringing the action has the right	223
to continue as a party to the action, subject to the limitations	224
established in division (C)(2) of this section.	225

(2)(a) The state may dismiss an action brought under division	226
(B) of this section notwithstanding the objections of the person	227
initiating the action if the person has been notified by the state	228
of the filing of the motion to dismiss and the court has provided	229
the person with an opportunity for a hearing on the motion.	230

(b) The state may settle an action brought under division (B)	231
of this section with the defendant notwithstanding the objections	232
of the person initiating the action if the court determines, after	233
a hearing, that the proposed settlement is fair, adequate, and	234
reasonable under all the circumstances. Upon a showing of good	235
cause, the court may hold the hearing in camera.	236

(c) Upon a showing by the state that unrestricted	237
participation during the course of the litigation by the person	238
initiating the action would interfere with or unduly delay the	239
state's prosecution of the case or would be repetitious,	240
irrelevant, or for purposes of harassment, the court, in its	241
discretion, may impose limitations on the person's participation,	242
including, but not limited to, all of the following:	243

(i) Limiting the number of witnesses that the person may	244
call;	245

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

246

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

247

(iv) Otherwise limiting the participation by the person in	248
the litigation.	249

(d) Upon a showing by the defendant that unrestricted	250
participation during the course of the litigation by the person	251
initiating an action under division (B) of this section would be	252
for purposes of harassment or would cause the defendant undue	253
burden or unnecessary expense, the court may limit participation	254
by the person initiating the action in the litigation.	255

(3) If the state declines to proceed with an action brought	256
by a person under division (B) of this section and the person	257
conducts the action, the state may request to be served with	258
copies of all pleadings filed in the action and to be supplied	259
with copies of all deposition transcripts at the state's expense.	260
When the person proceeds with the action, the court, without	261
limiting the status and rights of the person initiating the	262
action, may permit the state to intervene at a later date upon a	263
showing of good cause.	264

(4) Whether or not the state proceeds with the action, upon a	265
showing by the state that certain discovery by the person	266
initiating the action would interfere with the state's	267
investigation or prosecution of a civil matter arising out of the	268
same facts, the court may stay that discovery for a period of not	269
more than sixty days. The showing shall be conducted in camera.	270
The court may extend the sixty-day period upon a further showing	271
in camera that the state has pursued the criminal or civil	272
investigation or proceedings with reasonable diligence and any	273
proposed discovery in the civil action will interfere with the	274
ongoing criminal or civil investigation or proceedings.	275

(D)(1) Except as otherwise provided in this division, if the	276
state proceeds with an action brought by a person under division	277
(B) of this section, the person shall receive at least fifteen per	278
cent, but not more than twenty-five per cent of the proceeds of	279
the action or settlement of the claim, depending on the extent to	280
which the person substantially contributed to the prosecution of	281
the action. If the action is one that the court finds to be based	282
primarily on disclosures of specific information, other than	283
information provided by the person bringing the action, the court	284
may award the sums that it considers appropriate, but in no case	285
more than ten per cent of the proceeds, taking into account the	286
significance of the information and the role of the person	287
bringing the action in advancing the case to litigation. Any	288
payment to a person under this division shall be made from the	289
proceeds. The person shall also receive an amount for reasonable	290
expenses that the court finds to have been necessarily incurred	291
plus reasonable attorney's fees and costs. All expenses, fees, and	292
costs shall be awarded against the defendant.	293

(2) If the state does not proceed with an action brought by a	294
person under division (B) of this section, the person bringing the	295
action or settling the claim shall receive an amount that the	296
court decides is reasonable for collecting the civil penalty and	297
damages. The amount shall be not less than twenty-five per cent	298
and not more than thirty per cent of the proceeds of the action or	299
settlement and shall be paid out of the proceeds. The person also	300
shall receive an amount for reasonable expenses that the court	301
finds to have been necessarily incurred plus reasonable attorney's	302
fees and costs. All expenses, fees, and costs shall be awarded	303
against the defendant.	304

(3) If the state does not proceed with the action and the	305
person bringing the action conducts the action, the court may	306
award to the defendant its reasonable attorney's fees and expenses	307
if the defendant prevails in the action and the court finds that	308
the claim of the person bringing the action was clearly frivolous,	309
clearly vexatious, or brought primarily for purposes of	310
harassment.	311

(E)(1) A person may not bring an action under division (B) of	312
this section that is based on allegations or transactions that are	313
the subject of a civil action proceeding in which the state is	314
already a party.	315

(2) A person may not bring an action under this section that	316
is based on the public disclosure of allegations or transactions	317
in a criminal, civil, legislative, or administrative hearing,	318
report, audit, or investigation, or from the news media, unless	319
the person bringing the action has direct and independent	320
knowledge of the information on which the allegations are based	321
and has voluntarily provided the information to the state before	322
filing an action based on the information under this section. This	323
division does not apply to the bringing of an action by the state.	324

(F) The state is not liable for expenses that a person incurs	325
in bringing an action under this section.	326

Sec. 6111.66.  (A) All money collected by the director of	327
environmental protection under sections 6111.60 to 6111.66 of the	328
Revised Code and all money from actions brought under section	329
6111.65 of the Revised Code shall be deposited in the state	330
treasury to the credit of the aquatic nuisance species prevention	331
fund, which is hereby created in the state treasury. All	332
investment earnings of the fund shall be credited to the fund.	333

(B) Money in the fund shall be used by the director for all	334
of the following:	335

(1) Prevention of the introduction of aquatic nuisance	336
species into the state waters of Lake Erie;	337

(2) Control of the spread of aquatic nuisance species that	338
exist in the state waters of Lake Erie prior to the effective date	339
of this section;	340

(3) Reclamation of aquatic resources in the state that have	341
been injured as a result of aquatic nuisance species;	342

(4) The administration of sections 6111.60 to 6111.66 of the	343
Revised Code and rules adopted under them.	344