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(126th General Assembly)
(Substitute Senate Bill Number 393)
AN ACT
To amend sections 903.08 and 6111.04 and to enact section 6111.451 of the Revised Code to make changes to the national pollutant discharge elimination system program with respect to concentrated animal feeding facilities, to require the Director of Environmental Protection to adopt rules specifying certain construction activities that may be conducted prior to approval of plans for a treatment or disposal works under the Water Pollution Control Law, and to establish the Preconstruction Rules Working Group for the purpose of developing the rules.
Be it enacted by the General Assembly of the State of Ohio:
SECTION 1. That sections 903.08 and 6111.04 be amended and section 6111.451 of the Revised Code be enacted to read as follows: Sec. 903.08.
(A)(1) The director of agriculture is
authorized to participate
in the national pollutant discharge
elimination system in accordance with
the Federal Water Pollution
Control
Act. Not later than
one hundred eighty days after
March 15, 2001, the
director shall prepare a state
program in accordance with 40
C.F.R. 123.21 for point sources that
are subject to
this section and shall submit the program to the
United
States environmental protection agency for approval. (2) On and after the date on which the United States
environmental
protection agency approves the state program
submitted under division
(A)(1) of this section, the authority to
enforce terms and
conditions of NPDES permits previously issued
under division
(J)
of section 6111.03 or under section 6111.035 of
the Revised
Code for the discharging, transporting, or handling of
storm water
from an animal feeding facility or of manure is
transferred from
the director of environmental protection to the
director of
agriculture. Thereafter, the director of
environmental protection
shall have no authority to enforce the
terms and conditions of
those NPDES permits. After the transfer
of authority under
division (A)(2) of this section, the NPDES
permits concerning which authority has been transferred shall be
considered to
have been issued under
this section. (B)(1) On and after the date on which the
United States
environmental protection agency approves the
NPDES program
submitted by the director of agriculture under this
section, no
person shall discharge manure from a point
source into waters of
the state without first obtaining a NPDES permit issued by the director of agriculture under this section. The owner or operator of a concentrated animal feeding operation Any person that is required by the Federal Water Pollution Control Act to obtain a permit for the discharge of manure shall apply to the director for an individual NPDES permit or for coverage under a general
NPDES
permit. A concentrated animal feeding operation is deemed to be a point source that discharges manure into the waters of the state unless the director has determined that the concentrated animal feeding operation has no potential to discharge manure into the waters of the state. If an owner or operator of a concentrated animal feeding operation receives notice from the director that the director has determined that the concentrated animal feeding operation has no potential to discharge manure, the owner or operator is not required to apply for an individual NPDES permit or for coverage under a general NPDES permit for that operation. The director's determination shall be made in accordance with rules The director is authorized to issue, revoke, modify, or deny such an individual permit or issue, revoke, or deny coverage under a general permit in compliance with all requirements of the Federal Water Pollution Control Act. Violation of
division
(B)(1) of this section is hereby declared to be a public
nuisance
for purposes of state enforcement of this section. (2) Persons that have been issued a permit by the director
of
environmental protection under division (J) of section 6111.03
of
the Revised Code for the discharge of manure prior to the
date
on which the United States environmental protection agency
approves the NPDES program submitted by the director of
agriculture
under this section may continue to
operate under that
permit until it expires or is
modified or revoked. Such a permit
shall be enforced by the
director of agriculture upon the transfer
of authority to enforce
the terms and conditions of the permit
under division (A)(2) of
this section. (C)(1) On and after the date on which the United
States
environmental protection agency approves the NPDES
program
submitted by the director of agriculture under this section, no
person
shall discharge storm water resulting from an animal
feeding facility without
first obtaining a
NPDES permit issued by
the director of
agriculture in accordance with rules when such a
permit is required by the
Federal Water
Pollution
Control Act.
Violation of division
(C)(1) of this section is hereby declared to
be a public nuisance
for purposes of state enforcement of this
section. (2) Persons that have been issued a NPDES permit by the
director of
environmental protection under Chapter 6111. of the
Revised
Code
for the discharge of storm water from an animal
feeding
facility prior to the date on which the
United States
environmental protection agency approves the NPDES program
submitted by the director of agriculture under this section may
continue
to operate under that permit until it expires or is
modified or revoked. Such a permit shall be enforced by the
director of agriculture upon the transfer of authority to enforce
the terms and conditions of the permit under division (A)(2) of
this section. (D) In accordance with rules, an applicant for a NPDES
permit
issued under this section shall submit a fee in an amount
established by rule together with, except as otherwise provided in
division (F) of this section, an application for the
permit to the
director of agriculture on a form prescribed by the
director. The
application
shall include any information required by rule. The
director or the
director's authorized representative may
help an
applicant for a NPDES permit during the application
process by
providing guidance and technical assistance. (E) The director of agriculture shall issue
NPDES permits in
accordance with this section
and section 903.09 of the Revised
Code. The director shall deny an application for a
NPDES permit
if any of the following applies: (1) The application contains misleading or false
information. (2) The administrator of the United States environmental
protection agency objects in writing to the issuance of the NPDES
permit in accordance with section 402(d) of the
Federal
Water
Pollution Control Act. (3) The director determines that the proposed
discharge or
source would conflict with an areawide waste treatment
management
plan adopted in accordance with section 208 of the
Federal
Water
Pollution Control Act. Additional grounds for the denial of a NPDES permit shall be
those established in this chapter and rules. (F) To the extent consistent with the Federal
Water
Pollution Control Act, the director
of agriculture shall issue
general
NPDES permits that will apply in lieu of individual
NPDES
permits for categories of point sources for which the
director
determines that all of the following apply: (1) Any discharges authorized by a general permit will have
only
minimal cumulative adverse effects on the environment when
the discharges
are considered collectively and individually. (2) The discharges are more appropriately authorized by a
general
permit than by an individual permit. (3) Each category of point sources satisfies the criteria
established in rules. A person who is required to obtain a NPDES permit shall
submit
to
the director a
notice of the person's intent to be
covered under an existing general
permit or, at the person's
option, an application for an
individual NPDES permit. Upon
receipt of a notice of intent for
coverage under an existing
general permit, the director shall notify the
applicant
in writing
that the person is covered by the
general permit if the person
satisfies the
criteria established in rules for eligibility for
such coverage. If the
person is ineligible for coverage under the
general permit, the director shall
require the
submission of an
application for an individual NPDES permit. (G) The director of agriculture shall establish terms and
conditions of NPDES permits in accordance with rules. Terms and
conditions shall be designed to achieve and maintain full
compliance with
national effluent
limitations, national standards
of performance for new sources, the most
current water quality
standards adopted under section 6111.041 of the Revised Code, the
most
current antidegradation policy adopted under section 6111.12
of the Revised Code, and
other requirements of
the Federal Water
Pollution Control
Act. In establishing the terms and
conditions
of a NPDES permit, the director, to the extent
consistent with
that act, shall consider technical
feasibility and economic costs
and shall allow a reasonable period
of time for coming into
compliance with the permit. (H) An animal feeding facility that is required to obtain
both
a NPDES permit and a permit to operate shall be issued a
single
permit to operate incorporating the terms and conditions
established by
both permits. The permit to operate expressly
shall designate the terms
and conditions required under the NPDES
program as federally
enforceable. All other provisions are
enforceable under state law only and
expressly shall be designated
accordingly. (I) A NPDES permit may be issued under this section
for a
period
not to exceed five years.
(J) A NPDES permit issued under this section may be
renewed.
An
application for renewal of a NPDES permit shall be submitted to
the director of agriculture at least one hundred eighty days prior
to the
expiration date of the
permit and shall comply with the
requirements
governing applications for NPDES permits established
under this
section and by rule. (K)(1) No person shall make any false statement,
representation,
or
certification in an application for a NPDES
permit or
in any form, notice, or report required to be submitted
to the
director pursuant to
terms and conditions established in a
NPDES permit issued under
this section. (2) No person shall render inaccurate any monitoring method
or
device that is required under the terms and conditions of a
NPDES
permit issued under this
section. (L) The director may modify, suspend, or revoke a
NPDES
permit
issued under this section for cause as established by rule.
No
NPDES permit issued under this section shall be
modified,
suspended, or revoked without a written order stating the findings
that led to the modification, suspension, or revocation. In
addition, the
permittee has a
right to an administrative hearing
in accordance with Chapter 119.
of the Revised Code, except that
section 119.12 of the
Revised Code does not apply. Further, an
order of the
director modifying,
suspending, or revoking a NPDES
permit may be appealed to the
environmental review appeals
commission under sections 3745.04 to
3745.06 of the Revised Code. (M)(1) No person shall violate any effluent limitation
established by rule. (2) No person shall violate any other provision of a NPDES
permit
issued under this section. (3) Compliance with a NPDES permit issued
under this section
constitutes compliance with this section. (N) This section, including the state program authorized in
division (A)(1) of this section, shall be administered in a manner
consistent with the Federal
Water Pollution Control Act.
Sec. 6111.04. (A) Both of the following apply except as
otherwise provided in division (A) or (F) of this section: (1) No person shall cause pollution or place or
cause to be
placed any sewage, sludge, sludge materials,
industrial waste, or
other wastes
in a location where they cause pollution of any
waters of the
state. (2) Such an action prohibited under division (A)(1) of this
section is hereby declared to be a public
nuisance. Divisions (A)(1) and (2) of this section do not apply if the
person causing pollution or placing or causing to be placed wastes
in a
location in which they cause pollution of any waters of the
state holds a
valid, unexpired permit,
or renewal of a permit,
governing the causing or
placement as provided in sections 6111.01
to 6111.08 of
the Revised Code or if the person's application for
renewal of such a permit is pending. (B) If the director of environmental protection administers a sludge management program
pursuant to division (S) of section 6111.03 of the Revised Code,
both of the
following apply except as otherwise provided in
division (B) or
(F) of this
section: (1) No person, in the course of sludge management, shall
place on land
located in the state or release into the air of the
state any sludge or sludge
materials. (2) An action prohibited under division (B)(1) of this
section is
hereby declared to be a public nuisance. Divisions (B)(1) and (2) of this section do not apply if the
person
placing or releasing the sludge or sludge materials holds a
valid, unexpired
permit, or renewal of a permit, governing the
placement or release as provided
in sections 6111.01 to 6111.08 of
the Revised Code or if the person's application for renewal
of
such a permit is pending. (C) No person to whom a permit has been issued shall place
or
discharge, or cause to be placed or discharged, in any waters
of
the state any sewage, sludge, sludge materials, industrial
waste, or other wastes in excess of the permissive discharges
specified under
an existing permit without first receiving a
permit from
the director to do
so. (D) No person to whom a sludge management permit has been
issued shall place on the land or release into the air of the
state any sludge or sludge materials in excess of the permissive
amounts specified under the existing sludge management permit
without first receiving a modification of the existing sludge
management
permit or a new sludge management permit to do so from
the
director. (E) The director may require the submission of plans,
specifications, and other information that the director
considers
relevant in connection with the issuance of permits. (F) This section does not apply to any of the following: (1) Waters used in washing sand, gravel, other aggregates,
or mineral products when the washing and the
ultimate disposal
of
the water used in the washing, including any sewage,
industrial
waste, or other wastes contained in the waters,
are
entirely
confined to the land under the control of the person
engaged in
the recovery and processing of the sand, gravel,
other aggregates,
or mineral products and do not result in the
pollution of waters
of the state; (2) Water, gas, or other material injected into a well to
facilitate, or that is incidental to, the production of
oil,
gas,
artificial brine, or water derived in association with oil
or gas
production and disposed of in a well, in compliance with a
permit
issued under Chapter 1509. of the Revised Code, or sewage,
industrial waste, or other wastes injected into a well in
compliance with an injection well operating permit. Division
(F)(2)
of this section does not
authorize, without a permit, any
discharge that
is prohibited by, or for which a permit is required
by,
regulation of the United States environmental protection
agency. (3) Application of any materials to land for agricultural
purposes or runoff of the materials from
that application or
pollution by animal waste or soil sediment, including attached
substances, resulting from farming, silvicultural, or earthmoving
activities regulated by Chapter 307. or 1515. 1511. of the Revised
Code;. Division (F)(3) of this section does not authorize, without a permit, any discharge that is prohibited by, or for which a permit is required by, the Federal Water Pollution Control Act or regulations adopted under it. (4) The excrement of domestic and farm animals defecated
on
land or runoff therefrom into any waters of the state;. Division (F)(4) of this section does not authorize, without a permit, any discharge that is prohibited by, or for which a permit is required by, the Federal Water Pollution Control Act or regulations adopted under it. (5) On and after the date on which the United States
environmental protection agency approves the NPDES program
submitted by the director of agriculture under section 903.08 of
the Revised Code, storm
water from an animal feeding facility,
as
defined in section 903.01 of the Revised Code, or manure, as
defined in
that section any discharge that is within the scope of the approved NPDES program submitted by the director of agriculture; (6) The discharge of sewage, industrial waste, or other
wastes into a sewerage system tributary to a treatment works.
Division (F)(6) of this section does not
authorize any discharge
into a publicly
owned treatment works in violation of a
pretreatment program
applicable to the publicly owned treatment
works. (7) A household sewage treatment system or a small flow on-site sewage treatment system, as applicable, as defined in section 3718.01 of the Revised Code that is installed in compliance with Chapter 3718. of the Revised Code and rules adopted under it. Division (F)(7)
of this
section does not
authorize, without a permit, any discharge that
is prohibited by, or for which a permit is required by,
regulation
of the United States environmental protection agency. (8) Exceptional quality sludge generated outside of this
state and
contained in bags or other containers not greater than
one hundred pounds in
capacity. As used in division (F)(8) of
this section, "exceptional
quality sludge" has the same meaning as
in division (Y) of section
3745.11 of the Revised Code. (G) The holder of a permit issued under section 402 (a) of
the
Federal Water Pollution Control Act need not obtain a permit
for a discharge authorized by the permit until its
expiration
date. The Except as otherwise provided in this division, the director of environmental protection shall
administer
and enforce those permits
within this state and may
modify
their terms and conditions in
accordance with division
(J) of section 6111.03 of the Revised
Code. On and after the date on which the United States environmental protection agency approves the NPDES program submitted by the director of agriculture under section 903.08 of the Revised Code, the director of agriculture shall administer and enforce those permits within this state that are issued for any discharge that is within the scope of the approved NPDES program submitted by the director of agriculture. Sec. 6111.451. Not later than one hundred eighty days after the effective date of this section, the director of environmental protection shall adopt rules in accordance with Chapter 119. of the Revised Code specifying construction activities that do not, by themselves, constitute installing works for the treatment or disposal of sewage or other waste for which approval of plans is required under section 6111.44 or 6111.45 of the Revised Code. The activities shall include the grading and clearing of land, on-site storage of portable parts and equipment, and the construction of foundations or buildings that are not directly related to the installation of treatment or disposal works. The rules also shall allow specified initial activities that are part of the installation of treatment or disposal works, such as the installation of electrical and other utilities for the works, prior to the approval of the plans for the works, provided that the owner or operator of the works has submitted the complete plans for the works to the director and has notified the director that this activity will be undertaken prior to the approval of the plans. Any activity that is undertaken under the rules adopted under this section shall be at the risk of the owner or operator. The rules adopted under this section, to the extent possible, shall be consistent with rules adopted under division (F)(5) of section 3704.03 of the Revised Code.
SECTION 2. That existing sections 903.08 and 6111.04 of the Revised Code are hereby repealed.
SECTION 3. (A) There is hereby created the Preconstruction Rules Working Group consisting of the following members appointed by the Governor:
(1) A representative of the Ohio Farm Bureau Federation;
(2) A representative of the Ohio Manufacturers' Association;
(3) A representative of the Ohio Homebuilders Association;
(4) A representative of a statewide environmental advocacy organization;
(5) A person representing the Ohio utility industry. (B) The Governor shall make appointments to the Working Group not later than thirty days after the effective date of this section. Vacancies on the Working Group shall be filled in the manner provided for original appointments.
(C) The Preconstruction Rules Working Group shall work with the Director of Environmental Protection in the development of proposed rules for the purposes of section 6111.451 of the Revised Code as enacted by this act. The proposed rules shall be developed not later than one hundred eighty days after the effective date of this section. The Director then shall proceed to adopt the rules as required by section 6111.451 of the Revised Code. Upon the expiration of the one-hundred-eighty-day period for the development of the proposed rules, the Preconstruction Rules Working Group shall cease to exist.
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