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(122nd General Assembly)(Amended Substitute Senate Bill Number 219)
AN ACT
To amend sections 3745.70 to 3745.73 and to enact sections 3745.74, 3753.01 to
3753.10, and 3753.99 of the
Revised Code to require the owners or operators of stationary
sources that have more than the threshold quantity of a
regulated substance to submit a risk management
plan related to
that regulated substance, to establish the requirements of
the risk management program, and to revise the statutes
relating to
environmental audits.
Be it enacted by the General Assembly of the State of Ohio:
SECTION 1 . That sections 3745.70, 3745.71, 3745.72, and 3745.73 be amended
and sections 3745.74, 3753.01, 3753.02, 3753.03, 3753.04,
3753.05, 3753.06, 3753.07, 3753.08, 3753.09, 3753.10, and
3753.99 of the Revised Code be enacted to read as follows:
Sec. 3745.70. As used in sections 3745.70 to 3745.73
of the Revised Code: (A) "Environmental audit" means a
voluntary, thorough, and discrete self-evaluation of one or more activities at
one or more facilities
or properties that is documented; is designed to improve compliance, or
identify, correct, or
prevent noncompliance, with environmental laws; and is conducted by the owner
or operator of a facility or property or the owner owner's or
operator's employee or
independent contractor. An environmental audit may
be conducted by the owner or operator of a facility or property, the owner's
or operator's employees, or independent contractors. Once initiated, an
audit shall be completed within a
reasonable time, not to exceed six months, unless a written
request for an extension is approved by the head officer of the governmental
agency, or division or office thereof, with jurisdiction over the
activities being audited based on a showing of reasonable
grounds. An audit shall not be considered to be initiated until
the owner or operator or the owner's or operator's employee or
independent contractor actively has begun the self-evaluation of
environmental compliance. (B) "Activity" means any process, procedure, or function that is
subject to environmental laws. (C) "Voluntary" means, with respect to an environmental audit of
a particular activity, that all both of the following apply when
the audit of that
activity commences: (1) The audit is not required by law, prior litigation, or an order by a
court or a government agency; (2) The owner or operator who
conducts the audit does not know or have reason to know that a government
agency has commenced an
investigation or enforcement action that concerns a violation of environmental
laws involving the activity or that such an investigation or enforcement
action is imminent. (D) "Environmental audit report"
means interim or final data, documents, records, or plans that are necessary
to an environmental audit and are collected, developed, made, and maintained
in good
faith as part of the audit, and may include, without limitation: (1) Analytical data, laboratory reports,
field notes and
records of observations, findings, opinions, suggestions,
conclusions, drafts, memoranda, drawings, photographs,
computer-generated or electronically recorded information, maps,
charts, graphs, and surveys; (2) Reports that describe the scope, objectives, and methods of the
environmental audit, audit management policies, the information gained by the
environmental audit, and conclusions and recommendations together with
exhibits and appendices; (3) Memoranda, documents, records, and plans analyzing
the environmental audit report or discussing implementation, prevention,
compliance, and remediation issues associated with the environmental audit. "Environmental audit report" does not mean corrective or remedial action
taken pursuant to an environmental audit. (E) "Environmental laws" means sections 1511.02
and 1531.29, Chapters 3704., 3734., 3745.,
3746., 3750., 3751.,
3752., 6109., and 6111. of the Revised Code, and any other
sections or chapters of the Revised Code the principal purpose of which is
environmental
protection; any federal or local counterparts or extensions of those sections
or chapters; rules adopted under any such sections, chapters, counterparts, or
extensions; and terms and conditions of orders, permits, licenses, license
renewals, variances, exemptions, or plan approvals issued under such sections,
chapters, counterparts, or extensions. Sec. 3745.71. (A) The Except as otherwise provided in division
(C) of this section, the owner or operator of a facility or
property who conducts
an environmental audit of one or more activities at the facility or property
has a privilege with respect to both of the following: (1) The contents of an environmental audit report that is based on the
audit; (2) The contents of communications between the owner or operator and
employees or contractors of the owner or operator, or among employees or
contractors of the owner or operator, that are necessary to the audit and are
made in good faith as part of the audit after the employee or contractor is
notified that the communication is part of the audit. (B) Except as otherwise provided
in or ordered pursuant to this section, information that is privileged under
this section is not admissible as evidence or subject to discovery in any
criminal, civil, or administrative proceeding and a person who
possesses such
information as a result of conducting or participating in an environmental
audit shall not be compelled to testify in any criminal,
civil, or administrative proceeding
concerning the contents privileged portions of that
information the environmental audit. (C) The privilege provided in this section does not apply to
criminal investigations or proceedings. Where an audit report
is obtained, reviewed, or used in a criminal proceeding, the
privilege provided in this section applicable to civil or
administrative proceedings is not waived or eliminated.
Furthermore, the
privilege provided in this section does not apply to
particular information under any of the following circumstances: (1) The privilege is not asserted with respect to that information by the
owner or operator to whom the privilege belongs. (2) The owner or operator to whom the privilege belongs voluntarily
testifies, or has provided
written authorization to an employee, contractor, or agent to testify on
behalf of the owner or
operator, as to that information. (3) A court of record in a criminal or civil proceeding or the
tribunal
or presiding officer in an administrative proceeding finds, pursuant to this
section, that the privilege does not apply to that information. (4) The information is required by law to be collected, developed,
maintained, reported, disclosed publicly, or otherwise made
available to a government agency. (5) The information is obtained from a source other than an environmental
audit report, including, without limitation, observation, sampling,
monitoring, a communication, a record, or a report that is not part of the
audit on which the
audit report is based. (6) The information is collected, developed, made, or maintained in bad
faith or for a fraudulent purpose. (7) The owner or operator to whom the privilege belongs waives the
privilege, in whole or in part, explicitly or by engaging in conduct that
manifests a clear intent that the information not be
privileged. If an owner or operator introduces part of an environmental
audit report into evidence in a civil, criminal, or administrative
proceeding
to prove that
the owner or operator did not violate, or is no longer violating, any
environmental laws, the privilege provided by this section is waived with
respect to all information in the audit report that is relevant to that
issue. (8)(a) The information shows evidence of noncompliance with
environmental
laws and
the owner or operator fails to do any of the
following: (i) Promptly initiate
reasonable efforts to achieve compliance with those laws are not
initiated and pursued
upon discovery of the noncompliance through an
environmental audit; (ii) Pursue compliance
with reasonable diligence upon discovery through the
environmental audit of noncompliance. "Reasonable; (iii) Achieve compliance within a reasonable
time. (b) "Reasonable
diligence" includes,
without limitation, compliance with section 3745.72 of the Revised Code. (9) The information contains evidence that a government agency
federally authorized, approved, or delegated to enforce environmental laws
has reasonable cause to believe is necessary
to prevent imminent and substantial endangerment or harm to
human health or the environment. (10) Any circumstance in which both of the following apply: (a) The information contains evidence regarding an alleged
violation of environmental laws and a government agency charged with
enforcing any of those laws has a substantial need for the information to
protect public health or safety or to prevent imminent and substantial
harm to
property or the environment; (b) The government agency is unable to obtain the substantial
equivalent of the information by other means without unreasonable delay or
expense. (10)(11) The information consists of personal
knowledge of an individual who did not obtain that information as
part of an environmental audit.
(11)(12) The information is not clearly identified as part of
an
environmental
audit report. For purposes of this section, clear identification of
information as part of an environmental audit report includes, without
limitation, either of the following:
(a) The information is contained in a document and the front
cover, the first page, or a comparable part of the document is
prominently labeled
with "environmental audit report: privileged information" or substantially
comparable language; (b) The information is contained in an electronic record and the
record is programmed to display or print prominently "environmental audit
report: privileged information" or substantially comparable language before
the privileged information is displayed or printed. (13) The information
existed prior to the initiation of the environmental audit under
division (A) of section 3745.70
of the Revised
Code. (D) If the privilege provided in this section belongs to an owner
or operator who is not an individual, the privilege may be asserted or waived,
in whole or in part, on behalf of the owner or operator only by an officer,
manager, partner, or other comparable person who has a fiduciary relationship
with the owner or operator and is authorized generally to act on behalf of the
owner or operator or is a person who is authorized specifically to assert or
waive the privilege. (E) A person asserting the privilege provided in this section
has the burden of proving the applicability of the privilege by a
preponderance of the evidence. If a person seeking disclosure of information
with respect to which a privilege is asserted under this section shows
evidence of noncompliance with environmental laws pursuant to
division (C)(8) of this section, the person asserting the privilege
also has the burden of proving by a preponderance of the evidence that
reasonable efforts to achieve compliance with those laws were initiated
promptly and
that compliance was pursued with reasonable diligence pursuant to
that division and achieved within a reasonable time. (F)(1) When determining whether the privilege provided by this
section applies to particular information, a court of record that is not
acting pursuant to division (G) of this section, or the tribunal
or presiding officer in an administrative proceeding, shall conduct an in
camera review of the information in a manner consistent with applicable rules
of procedure. (G)(1) The prosecuting attorney of a county or the attorney
general, having
probable cause to believe, based on information obtained from a source
other than an environmental audit report, that a violation has been
committed under environmental laws for which a civil or administrative
action may be initiated, may obtain information with respect to
which a privilege is asserted under this section pursuant to a search warrant,
subpoena, or discovery under the Rules of Civil
Procedure or the Rules of Criminal
Procedure. The prosecuting attorney or the attorney general
immediately shall place the
information under seal and shall not review or disclose its contents. (2) Not later than sixty days after receiving an
environmental audit report under division
(G)(1) of this section, the
prosecuting attorney or the attorney general may file with the
court of common pleas of a county in which
there is proper venue to prosecute bring a civil or administrative
action pertaining to the alleged violation a petition
requesting an in camera hearing to determine if the information described in
division (G)(1) of this section is subject to disclosure under this
section. Failure to file such a petition shall cause the information to be
released to the owner or operator to whom it belongs. (3) Upon the filing of a petition under division
(G)(2) of this section, the
court shall issue an order scheduling an in camera hearing, not
later than forty-five days after the filing of the petition, to
determine if any or all of the
information described in division (G)(1) of this section is subject
to disclosure under this section.
The order shall allow the prosecuting attorney or the
attorney general to remove the seal from the report in order to
review it and shall place appropriate limitations on
distribution and review of the report to protect against
unnecessary disclosure. (4) The prosecuting attorney or the attorney general may
consult with government agencies regarding the contents of the
report to prepare for the in camera hearing.
Information described in division (G)(1) of this section that is used
by the prosecuting attorney or the attorney general to prepare for the in
camera hearing shall not be used by the prosecuting attorney, the attorney
general,
an employee or agent of either of them, or an agency described in division
(G)(4) of this section in any investigation or proceeding against the
respondent, and otherwise shall be kept confidential, unless the information
is subject to disclosure under this section. (5) The parties may stipulate that information contained in an
environmental audit report is or is not subject to disclosure under this
section. (6) If the court determines that
information described in division (G)(1) of this section is
subject to disclosure under this section, the court shall compel disclosure
under this section of only the information that is relevant to the proceeding
described in division (G)(1) of this section. (H) Nothing in this section
affects the nature, scope, or application of any privilege of
confidentiality or nondisclosure
recognized under another section of the Revised Code or the
common law of this state, including, without limitation, the work product
doctrine and attorney-client privilege. (I) The privilege provided by this section applies only to
information and communications that are part of environmental audits
conducted initiated after March 13, 1997, and completed
before January 1, 2001
2004, in accordance with the time
frames specified in division
(A) of section 3745.70 of the
Revised
Code. Sec. 3745.72. (A) The owner or operator of a facility or
property who conducts an environmental audit of the facility or property and
promptly and voluntarily discloses information contained in or derived from an
audit report that is based on the audit and
concerns an alleged violation of environmental laws to the director of the
state agency that has jurisdiction over the alleged violation is immune from
any
administrative and
civil penalties for that the specific violation
disclosed, except that where the disclosed violation has
resulted in significant economic benefit to the owner or operator of the
facility or property, there is no immunity
for the economic benefit component of the administrative and
civil penalties for that violation.
An owner or operator asserting
entitlement
to such immunity has the burden of proving that entitlement by a preponderance
of the evidence. (B) For the purposes of this section, a disclosure of information
is voluntary with respect to an alleged violation of environmental laws only
if all of the
following apply: (1) The disclosure is made promptly after the
information is obtained through the environmental audit by the owner or
operator who conducts the environmental audit; (2) A reasonable, good faith effort is made to
achieve compliance as quickly as practicable with environmental laws
applicable to the information disclosed; (3) Compliance with environmental laws applicable to the information
disclosed is achieved as quickly as practicable or within such period as is
reasonably ordered by the director of the state agency that has jurisdiction
over the alleged violation; (4) The owner or operator cooperates with
the director of the state agency that has jurisdiction over the alleged
violation in investigating the cause, nature, extent, and effects of the
noncompliance; (5) The disclosure is not required by law, prior litigation, or an order
by a court or a government agency; (6) The owner or operator who makes the disclosure does not know or have
reason to know that a government agency charged with enforcing environmental
laws has commenced an investigation or enforcement action that
concerns a violation of such laws involving the activity. (C) For the purposes of this section, a disclosure shall be in
writing, dated, and hand delivered or sent by certified mail to the director
of the state agency that has jurisdiction over the alleged violation, and
shall contain all of the
following in a printed letter attached to the front of the disclosure: (1) The name, address, and telephone number of the owner or
operator making the disclosure; (2) The name, title, address, and telephone number of one or
more persons associated with the owner or operator who may be contacted
regarding the disclosure; (3) A brief summary of the alleged violation of environmental
laws, including, without limitation, the nature, date, and location of
the
alleged violation to the extent that the information is known by the owner or
operator; (4) A statement that the information is part of an
environmental audit report and is being disclosed under section 3745.72 of the
Revised Code
in order to obtain the immunity provided by that section. (D) This section does not provide immunity from the payment of
damages for harm to persons, property, or the environment; the payment of
reasonable costs incurred by a government agency in responding to a
disclosure;
or responsibility for the remediation or cleanup of
environmental harm under environmental laws. (E) The immunity provided by this section
does not apply to the owner or operator of a facility or property who,
within
the previous year, made a disclosure under this section with respect to a
particular activity and received immunity under this section with respect to
that activity
under any of the following circumstances: (1) Within the three-year period prior to disclosure,
the owner or operator of a facility or property has committed
significant violations that constitute a pattern of continuous
or repeated violations of environmental laws, environmental related settlement
agreements, or environmental related judicial orders and that arose from
separate and
distinct events. For the purposes of division
(E)(1) of this section, a
pattern of continuous or repeated violations also may be
demonstrated by multiple settlement agreements related to
substantially the same alleged significant violations that
occurred within the three-year period immediately prior to the
voluntary disclosure. Determination of whether a person has a
pattern of continuous or repeated violations under division
(E)(1) of this section shall be
based on the compliance history of the property or specific
facility at issue. (2) With respect to a specific violation, the
violation resulted in serious harm or in imminent and
substantial endangerment to human health or the
environment. (3) With respect to a specific violation, the
violation is of a specific requirement of an administrative or
judicial order. (F) The immunity provided by this section applies only to
disclosures made
concerning environmental audits conducted initiated after
March 13, 1997, and completed before January 1, 2001
2004, in accordance with the time
frames specified in division
(A) of section 3745.70 of the
Revised
Code. (G) The immunity provided by this section applies to a person
who makes a good faith disclosure to a state agency under this section even
though another state agency is determined to have jurisdiction over an alleged
violation of environmental laws indicated in the disclosure. (H) Each state agency that receives a
disclosure under this section promptly shall record receipt of the disclosure,
determine whether it has jurisdiction over the alleged violation of
environmental laws indicated in the disclosure, and, if it does not have such
jurisdiction, deliver the disclosure documents to the director of a state
agency that has jurisdiction over the alleged violation. If a disclosure
indicates alleged violations of environmental laws that are under the
jurisdiction of more than one state agency, the state agency that first
receives the disclosure and has jurisdiction over any of the alleged
violations promptly shall notify the director of each state agency that has
jurisdiction over any of such alleged violations. The director of each state
agency that receives a disclosure under this section, or is notified by
another state agency that the director's agency has jurisdiction over an
alleged violation of environmental laws indicated in the disclosure, promptly
shall deliver written
notice of that fact by certified mail to the owner or operator who made the
disclosure. The notice shall identify the state agency that sends the notice;
state the name, title, address, and telephone number of a person in the agency
who whom the owner or operator may contact regarding the
disclosure; and state the
name, address, and telephone number of the director of any other state agency
notified about the disclosure because that agency has jurisdiction over an
alleged violation of environmental laws indicated in the disclosure. Sec. 3745.73. Not later than March 31, 2000 2002, the
director of
environmental protection, in consultation with the attorney general,
appropriate federal, state, and local agencies, and appropriate statewide
organizations, shall submit
to the president of the senate and the speaker of the house of
representatives a report on the operation and impacts of this act
Substitute Senate Bill No. 138 of the
121st general assembly, including
the impact on environmental compliance and protection. The attorney general
and each state agency that has received a disclosure under section 3745.72 of
the Revised Code shall cooperate with the director in preparing the
report required by this section and shall submit information relevant to the
report to the director not later than January 31, 2000 2002. Sec. 3745.74. Nothing in sections 3745.70 to 3745.73 of
the Revised
Code shall be construed to
limit or affect either of the following: (A) The authority or
obligation of any government agency pursuant to section 149.43
of the Revised
Code; (B) Any employee
protection rights under federal or state laws. Sec. 3753.01. As used in this chapter: (A) "Accidental release"
means an unanticipated emission of a regulated substance into the ambient air
from a stationary source. (B) "Clean Air Act
Amendments" means the "Clean
Air Act
Amendments of 1990," 91
Stat. 685, 42
U.S.C.
7401 et al., as amended, and regulations adopted under
it. (C) "Covered process"
means a process that has a regulated substance present in an
amount that is in excess of the threshold quantity established in
rules adopted under section 3753.02 of
the Revised Code. (D) "Environmental
receptor" means natural areas such as national or state parks,
forests, or natural monuments; federally designated or state-designated
wildlife
sanctuaries, preserves, refuges, or areas; and federal
wilderness areas, that could be exposed at any time to toxic
concentrations, radiant heat, or overpressure greater than or
equal to the endpoints prescribed in rules adopted under section
3753.02 of the Revised
Code and that can be identified
on United States geological survey maps. (E) "Owner or operator"
means any person who owns, leases, operates, controls, or
supervises a stationary source. (F) "Process" means any
activity involving a regulated substance, including any use,
storage, manufacturing, handling, or on-site movement of the
substance or any combination of these activities. Any group of
vessels that are interconnected, or separate vessels that are
located in such a manner that a regulated substance potentially could be
involved in a
release, shall be considered a single process. (G) "public" means any
person except employees or contractors at a stationary
source. (H) "public receptor"
means off-site residences, institutions such as schools or
hospitals, industrial, commercial, and office buildings, parks,
or recreational areas inhabited or occupied by the public at any
time where the public could be exposed to toxic
concentrations, radiant heat, or overpressure as a result of an
accidental release. (I) "Regulated
substance" means a toxic or flammable substance listed in rules
adopted under section 3753.02 of the
Revised Code. (J) "Risk management
plan" means a risk management plan required under section
3753.03 of the Revised Code. (K) "Stationary source"
means any buildings, structures, equipment, installations,
or substance-emitting stationary activities that belong to the
same industrial group as described in the standard industrial classification
manual, 1987, that are located on one or more
contiguous properties under the control of the same person or
persons, and from which an accidental release may occur.
Properties shall not be considered
contiguous solely because of a railroad or pipeline
right-of-way. (1) "Stationary source" includes transportation
containers that are used for storage not incident to
transportation and transportation containers that are connected
to equipment at a stationary source for loading and unloading.
"Stationary source" does not include the transportation,
including storage incident to transportation, of any regulated
substance under this chapter. "Stationary source" does not
include naturally occurring hydrocarbon reservoirs. (2) "Transportation" includes, but is not limited to,
transportation that is subject to oversight or regulation under
49 C.F.R.
part 192, 193, or 195, or to a state natural gas or hazardous
liquid program for which the state has in effect a certification
to the United States department of
transportation under 49 U.S.C. 60105. (L) "Threshold quantity"
means the quantity established for a regulated substance in rules adopted
under section 3753.02 of the Revised Code that, if exceeded,
subjects an owner or operator to compliance with this chapter and rules
adopted under it. (M) "Vessel" means any
reactor, tank, drum, barrel, cylinder, vat, kettle, boiler,
pipe, hose, or other container. Sec. 3753.02. For the purpose of implementing and administering this
chapter, the director of environmental protection
may adopt, amend, and rescind rules in accordance with
Chapter 119. of the Revised
Code. The rules shall be
consistent with, equivalent in scope, content, and coverage to,
and no more stringent than the requirements of section 112(r)
of the Clean Air Act Amendments and any
regulations
adopted pursuant to that section. Rules adopted under this section shall
prescribe notice requirements by which the public is informed about and
afforded the opportunity to comment on risk management plans submitted in
accordance with this chapter. Sec. 3753.03. (A) Effective upon the date that the
United States environmental protection
agency delegates the program created under section 112(r) of
the Clean Air Act Amendments to the
environmental protection agency of this state, an owner or operator of a
stationary source that has a covered process shall develop and submit
a risk management plan no later than the latest of the following: (1) June 21, 1999; (2) The date on which a regulated substance is first
present above a threshold quantity in a process at the stationary source; (3) Three years after the date on which a regulated
substance at the stationary source is first listed under 40
C.F.R. 68.130. (B) An owner or
operator who is subject to division
(A) of this section shall
submit a single risk management plan that reflects all covered
processes at the stationary source by the applicable deadline
established under that division and that is in the form required
by the director of environmental protection in rules adopted
under section 3753.02 of the Revised Code. The risk
management plan shall include all of the following, as applicable: (1) A registration that reflects all covered processes
at the stationary source pursuant to 40
C.F.R. 68.160; (2) The applicable information required to be
submitted with the plan under section 3753.04 of the
Revised Code; (3) A summary of the actions taken to comply with all
of the other applicable requirements established under section
3753.04 of the Revised Code. (C) An owner or operator who has
submitted a risk management plan as required by division
(A) of this section or
submitted an update to a risk management plan under division
(C) of this section shall
revise, update, and submit the risk management plan in accordance with
whichever of the following is applicable: (1) Not later than five years after
the initial submission of the risk management plan under
division (A) of this
section; (2) Not later than five years after
the most recent update of the risk management plan submitted under
division (C) of this section; (3) As otherwise provided in rules
adopted by the director under section 3753.02 of the
Revised Code. (D) No owner or
operator who is required to submit, revise, or update a risk management plan
shall
fail to do so within the prescribed time. (E) An owner or
operator who is required to submit a risk management plan and
who knowingly makes a false statement in the plan, on a record
upon which information in the plan is based, or on or pertaining
to any other information or records required to be maintained
under this chapter or rules adopted under it is guilty of
falsification under section 2921.13 of the
Revised Code. Sec. 3753.04. (A) In addition to complying with section 3753.03
of the
Revised Code, the owner or operator of
a stationary source at which one or more covered processes are
present, as part of the owner or operator's risk management
program, shall comply with program 1, program 2, or program 3
requirements established under this section or with a
combination of those requirements. An owner or operator shall
determine which of those requirements apply to the covered
processes that are present at the stationary source as provided
in divisions (B) to (D) of this section. An owner
or operator shall comply with all levels of program requirements
that apply to the covered processes at the owner or operator's
stationary source. (B) The owner or
operator of a stationary source at which a covered process is
present is subject to program 1 requirements established under
division (E) of this section if
the covered process meets all of the following
conditions: (1) For the five years prior to the submission of a risk
management plan, the process has not had an accidental release
of a regulated substance where exposure to the substance, its
reaction products, overpressure generated by an explosion
involving the substance, or radiant heat generated by a fire
involving the substance led to any of the following
occurrences off-site: (a) Death of any person; (b) Injury to any person; (c) Response or restoration
activities for an environmental receptor. (2) The distance to a toxic or flammable endpoint for a
worst case release assessment conducted pursuant to a hazard
assessment as specified in rules adopted under section 3753.02
of the Revised
Code is less than the distance
to any public receptor; (3) Emergency response procedures have been coordinated
between the stationary source and local emergency planning and
response organizations. (C) The owner or
operator of a stationary source at which a covered process is
present is subject to program 2 requirements established under
division (F) of this section if
the covered process does not meet the conditions established
under division (B) or
(D) of this section. (D) The owner or
operator of a stationary source at which a covered process is
present is subject to program 3 requirements established under
division (G) of this section if
the covered process does not meet the conditions established
under division (B)
of this section and either
of the following conditions is met: (1) The process is in standard industrial classification
code 2611, 2812, 2819, 2821, 2865, 2869, 2873, 2879, or
2911; (2) The process is subject to the United States
occupational safety and health administration safety management
standard under 29 C.F.R.
1910.119. (E) The owner or
operator of a stationary source at which one or more covered
processes are present that meet the conditions established under
division (B) of this
section shall comply with all of the following program 1 requirements: (1) Submit with the risk management plan an analysis of
the worst case release scenario for each covered process and
documentation that the nearest public receptor is beyond the
distance to a toxic or flammable endpoint; (2) Submit with the risk management plan a five-year
accident history for the process; (3) Ensure that response actions have been coordinated
with local emergency planning and response agencies; (4) Certify in the risk management plan that
"Based upon criteria in rules
adopted
under section
3753.02 of the Revised
Code, the distance to the
specified endpoint for the worst case release
scenario for the following process(es) is less than the distance
to the nearest public receptor: (list processes). within the
past five years, the process(es) has (have) had no accidental
release that caused off-site impacts as described in rules
adopted under
section 3753.02 of the Revised
Code. No additional measures
are necessary to prevent off-site impacts from accidental
releases. In the event of fire, explosion, or a release of a
regulated substance from the process(es), entry within the
distance to the specified endpoints may pose a danger to
public emergency responders. Therefore, public emergency
responders should not enter this area except as arranged with
the emergency contact indicated in the risk management plan.
The undersigned certifies that, to the best of my knowledge, the
information submitted is true, accurate, and complete.
(signature, title, date signed)" (F) The owner or
operator of a stationary source at which one or more covered
processes are present that meet the conditions established under
division (C) of this section shall comply with all of the following
program 2 requirements: (1) Develop and implement a management system in
accordance with rules adopted under section 3753.02 of the
Revised
Code; (2) Conduct a hazard assessment in accordance with rules
adopted under section 3753.02 of the
Revised
Code; (3) Implement program 2 prevention requirements or
implement program 3 prevention requirements in accordance with
rules adopted under section 3753.02 of the
Revised
Code; (4) Submit as part of the risk management plan information on prevention
program elements for covered processes that are subject to
program 2 requirements; (5) Develop and implement an emergency response program
in accordance with rules adopted under section 3753.02 of the
Revised Code. (G) The owner or
operator of a stationary source at which one or more covered
processes are present that meet the conditions established under
division (D) of this section shall comply with all of the following
program 3 requirements: (1) Develop and implement a management system in
accordance with rules adopted under section 3753.02 of the
Revised
Code; (2) Conduct a hazard assessment in accordance with rules
adopted under section 3753.02 of the
Revised
Code; (3) Implement program 3 prevention requirements in
accordance with rules adopted under section 3753.02 of the
Revised
Code; (4) Submit as part of the risk management plan information on prevention
program elements for covered processes that are subject to
program 3 requirements; (5) Develop and implement an emergency response program
in accordance with rules adopted under section 3753.02 of the
Revised Code. (H) If at any time a
covered process at a stationary source no longer meets the
conditions established under this section for its program level,
the owner or operator shall comply with the requirements of the
new program level that applies to the covered process and shall
update the risk management plan and information submitted with
it not later than six months after the change in compliance with
this chapter and rules adopted under it. Sec. 3753.05. (A) Except as provided in division (G) of
this section, an owner or operator who is required to submit
a risk management plan under this chapter shall pay annually to the
environmental protection agency a fee of fifty dollars together with any
of the following applicable fees: (1) A fee of sixty-five dollars if a covered process in
the stationary source includes propane and propane is the only
regulated substance at the stationary source over the threshold
quantity; (2) A fee of sixty-five dollars if a covered process in
the stationary source includes anhydrous ammonia that is sold
for use as an agricultural nutrient and is
on-site over the threshold quantity; (3) A fee of two hundred dollars for each regulated
substance over the threshold quantity. Propane shall be considered
a regulated substance subject to the fee levied under
division (A)(3) of this section
only if it is not the only regulated substance over the threshold
quantity. Anhydrous ammonia shall be considered a regulated
substance subject to the fee levied under division
(A)(3) of this section only if
it is not sold for use as an agricultural nutrient. (B) In accordance with
rules adopted under section 3753.02 of the
Revised
Code, the fees assessed under
division (A) of this section
shall be collected for the year 1999 no later than
June 21, 1999. Thereafter, the fees
shall be collected no later than the first day of
September of each year. The
fees assessed under division
(A) of this section for a
stationary source shall be based upon the regulated substances
present over the threshold quantity identified in the risk
management plan on file for calendar year 1999 as of
the twenty-first day of June and for each
subsequent calendar year as of the first day of September. (C) An owner or
operator who is required to submit a
risk management plan under this chapter and who fails to
submit such a plan within thirty days after the applicable
filing date prescribed in section 3753.03 of the Revised
Code shall submit with the risk
management plan a late filing fee of three per cent of the
total fees due under division
(A) of this section. (D) The director of environmental protection may
establish fees to be paid by persons, other than public officers
or employees, to cover the costs of obtaining copies of
documents or information submitted to the director under this
chapter and rules adopted under it. The director shall not charge more than
the
actual cost of making and delivering such copies or of accessing any
computerized data base
established or used for the purposes of assisting in the
administration of this chapter. (E) All moneys received
by the agency under divisions (A), (C), and (D) of
this section shall be
transmitted to the treasurer of state to be credited to the risk
management plan reporting fund, which is hereby created in the
state treasury. The fund shall
be administered by the director and used exclusively for the
administration and enforcement of this chapter and rules adopted
under it. (F) Beginning in
fiscal year 2001, and every two years thereafter, the director
shall review the total amount of moneys in the risk management plan reporting
fund to
determine if that amount exceeds
seven hundred fifty thousand dollars in either of the two preceding fiscal
years. If the total amount of moneys in the fund exceeded seven hundred fifty
thousand dollars in either fiscal year, the
director,
after review of the fee structure and consultation with affected
persons, shall issue an order reducing the amount of the fees
levied under division (a) of
this section so that the estimated amount of moneys resulting
from the fees will not exceed seven hundred fifty thousand
dollars in any fiscal year. If, upon review of the fees under this division and after the fees have
been reduced, the
director determines that the total amount of moneys collected
and accumulated is less than seven hundred fifty thousand
dollars, the director, after review of the fee structure and
consultation with affected persons, may issue an order
increasing the amount of the fees levied under division
(A) of this section so that the
estimated amount of moneys resulting from the fees will be
approximately seven hundred fifty thousand dollars. Fees shall
never be increased to an amount exceeding the amount specified in
division (A) of this section. Notwithstanding section 119.06 of the
Revised Code, the director may issue an
order under this division without the necessity to hold an
adjudicatory hearing in connection with the order. The issuance
of an order under this division is not an act or action for
purposes of section 3745.04 of the
Revised Code. (G) This section does not apply to the owner or operator of a
business that employs one hundred or fewer individuals and is a small business
concern as defined in the "Small
Business
Act," 72
Stat. 384 (1958), 15
U.S.C.A.
632, as amended. Sec. 3753.06. No person shall violate any provision of
this chapter or a rule adopted or order issued under it. Sec. 3753.07. The director of environmental protection
or the director's authorized representative, upon proper
identification and upon stating the purpose and necessity of an
inspection, may enter at reasonable times upon any private or
public property, real or personal, to inspect, investigate,
obtain samples, and examine and copy records to determine
compliance with this chapter and rules adopted or orders issued
under it. The director or the director's authorized
representative may apply for, and any judge of a court of record
may issue for use within the court's territorial jurisdiction,
an administrative inspection warrant under division
(F) of section 2933.21 of the
Revised
Code or other appropriate
search warrant necessary to achieve the purposes of this
chapter and rules adopted or orders issued under it. Sec. 3753.08. The director of environmental protection
may issue orders requiring an owner or operator who is
subject to this chapter to abate a
violation of section 3753.06 Of the Revised Code. The director may issue such orders as
final orders
without issuing a proposed action under section 3745.07 of the
Revised
Code and, notwithstanding
section 119.06 of the Revised
Code, without the necessity to
hold an adjudication hearing. Issuance of an order under this
section is not a condition precedent to bringing any civil or criminal action
under this chapter. Sec. 3753.09. (A) The
attorney general or the prosecuting attorney of the county or
director of law of the city where a violation has occurred or is
occurring, upon written request of the director of environmental
protection, shall prosecute to termination
any person who has violated division
(D) of section 3753.03 of the
Revised Code or shall bring an action
for injunction against any person who has violated or is
violating section 3753.06 of the
Revised Code. The court of common pleas in which an action
for injunction is
filed has the jurisdiction to and shall grant preliminary and
permanent injunctive relief upon a showing that the person against
whom the action is brought has violated or is violating section 3753.06 Of the Revised Code.
The court shall give precedence to such an action over all
other cases. (B) Whoever violates
section 3753.06 of the Revised
Code shall pay a civil penalty of not more than
twenty-five thousand dollars for each day of each violation.
The attorney general or the prosecuting attorney of the county or
director of law of the city where a violation of that section has occurred
or is occurring, upon written request of the director, shall
bring an action for the imposition of a civil penalty under this
division against any person who has committed or is committing
any such violation. Moneys resulting from civil penalties imposed under this
division shall be credited to the risk management plan reporting
fund created in section 3753.05 of the
Revised Code. (C) Upon the certified written request of any person, the
director shall conduct investigations and make inquiries that are necessary to
secure compliance with this
chapter or rules adopted or orders issued under it. The
director, upon request or upon the director's own initiative,
may investigate or make inquiries into any violation of this chapter
or rules adopted or orders issued under it. Sec. 3753.10. (A) As used in this section: (1) "Harm" means injury to, death of, or loss to person or
property. (2) "Tort action" means a civil action for damages for
harm, but does not include a civil action for damages for a
breach of contract or other agreement between persons or for a
breach of a warranty that exists pursuant to the
Revised Code or the common law of this
state. (B) The state, and any
officer or employee of the state as defined in section 109.36 of the
Revised Code, is not liable in a tort
action when the state inspects, investigates, reviews, or
accepts a risk management plan from an owner or operator who is subject to
this chapter unless an action or
omission of the state, or of an officer or employee of the state,
constitutes willful or wanton misconduct or intentionally
tortious conduct. Any action brought against the state under
this division shall be brought in the court of claims. (C)(1) This section does
not create, and shall not be construed as creating, a new cause
of action against or substantive legal right against the state
or an officer or employee of the state. (2) This section does not affect, and shall not be
construed as affecting, any immunities from civil liability or
defenses established by the
Revised
Code, the United States
Constitution, or the Ohio
Constitution or available at common law to which this state, or
an officer or employee of the state, may be entitled under
circumstances not covered by this section. (3) Section 9.86 of the Revised
Code does not apply to an
officer or employee of the state if the officer or employee is
performing work in connection with inspecting, investigating,
reviewing, or accepting a risk management plan from an owner or
operator who is subject to this chapter at the
time that the officer or employee allegedly caused the harm or
caused or contributed to the presence or release of toxic or
flammable substances for which damages are sought in a tort
action. In that case, the immunities conferred by
division (B) of this section apply to that individual. Sec. 3753.99. Whoever purposely violates division
(D) of section 3753.03 of the Revised
Code shall be fined not more
than twenty thousand dollars and imprisoned for not more than
one year, or both. Each day of violation is a separate offense. SECTION 2 . That existing sections 3745.70, 3745.71, 3745.72, and 3745.73 of
the Revised Code are hereby repealed.
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