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H. B. No. 298 As Introduced
As Introduced
127th General Assembly | Regular Session | 2007-2008 |
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Cosponsors:
Representatives Ujvagi, Foley, Stewart, D., Letson, Koziura, McGregor, J., Yuko, Celeste, Okey, Brady, Chandler, Luckie, Sayre, Fende
A BILL
To enact sections 1535.01 to 1535.07 of the Revised
Code to establish requirements governing
oceangoing vessels on the state waters of Lake
Erie in order to control aquatic nuisance species.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 1535.01, 1535.02, 1535.03, 1535.04,
1535.05, 1535.06, and 1535.07 of the Revised Code be enacted to
read as follows:
Sec. 1535.01. As used in this chapter:
(A) "Aquatic nuisance species" means a nonindigenous species
that threatens the diversity or abundance of native species in or
the ecological stability of infested waters or commercial,
agricultural, aquacultural, or recreational activities that are
dependent on such waters.
(B) "Ballast tank" means a tank or hold on an oceangoing
vessel that is used for carrying ballast water regardless of
whether the tank or hold was designed for that purpose.
(C) "Ballast water" means water and suspended matter that are
taken on board an oceangoing vessel to control or maintain trim,
draught, stability, or stresses of the vessel regardless of how
the water and suspended matter are carried.
(D) "Environmentally sound technology and methods" means the
best available technology, methods, efforts, actions, or programs
to prevent introductions or control infestations of aquatic
nuisance species that minimize adverse impacts to the structure
and function of an ecosystem and adverse effects on nontarget
organisms and ecosystems and that emphasize integrated pest
management techniques and nonchemical measures.
(E) "Oceangoing vessel" means a vessel that operates outside
the waters of Lake Michigan, Lake Superior, Lake Huron, and Lake
Erie and their tributaries.
(F) "Person" includes an individual, partnership,
copartnership, firm, company, limited liability company,
corporation, association, joint stock company, trust, estate, or
other legal entity, or the legal representative or agent of such
an entity, that operates oceangoing vessels on the state waters of
Lake Erie or that owns such vessels.
(G) "Rule" means a rule adopted under section 1535.03 of the
Revised Code.
(H) "Sediment" means matter that settles out of ballast water
within the ballast tank of an oceangoing vessel.
(I) "State waters of Lake Erie" means the waters under the
jurisdiction of this state in Lake Erie and waters that discharge,
flow, or otherwise are transferred into that portion of Lake Erie.
(J) "Vector" means the pathway and mechanism of entry for
aquatic nuisance species into the state waters of Lake Erie.
Sec. 1535.02. (A)(1) Not later than twelve months after the
effective date of this section, the chief of the division of
wildlife shall establish a program for the issuance of permits
under this section.
(2) On and after the effective date of rules adopted by the
chief, no person shall operate an oceangoing vessel that is
capable of discharging ballast water on the state waters of Lake
Erie without a permit issued by the chief under this section.
(B) The chief or the chief's authorized representative may
assist an applicant for a permit during the application process by
providing guidance and technical assistance.
(C) An applicant for a permit shall submit an application to
the chief on a form that the chief prescribes and provides,
accompanied by a permit fee in an amount specified by rule. The
applicant shall submit with the application a signed affidavit
verifying that the applicant's oceangoing vessel is in compliance
with the performance standards established in rules.
(D) Upon receipt of a complete application, permit fee, and
signed affidavit, the chief shall issue or deny a permit. If the
chief issues a permit, the permit shall include an identification
number that is unique to that permit and terms that are necessary
to ensure compliance with this chapter and rules. The chief shall
issue a permit for an oceangoing vessel only if the operator who
applies for the permit can demonstrate either that the oceangoing
vessel will not discharge ballast water or other waste or effluent
or, if the oceangoing vessel discharges ballast water or other
waste or effluent, that the operator of the oceangoing vessel will
utilize environmentally sound technology and methods, as
identified in rules, that can be used to prevent the discharge of
aquatic nuisance species. In addition, the chief shall deny a
permit if the application contains misleading or false
information. Additional grounds for denial of a permit shall be
established in rules.
(E) A permit is valid for one year and may be renewed. An
application for renewal of a permit shall be submitted to the
chief at least one hundred eighty days prior to the expiration
date of the permit and shall comply with the requirements
governing applications for permits that are established in this
section and in rules.
(F) The chief may modify, suspend, or revoke a permit in
accordance with rules.
(G) No person that is issued a permit under this section
shall violate the terms of the permit, including, but not limited
to, any requirement in the permit that the person utilize
environmentally sound technology and methods to prevent the
discharge of aquatic nuisance species.
Sec. 1535.03. (A) Not later than twelve months after the
effective date of this section, the chief of the division of
wildlife shall adopt rules in accordance with Chapter 119. of the
Revised Code that do all of the following:
(1) Identify aquatic nuisance species for the purposes of
this chapter;
(2) Establish all of the following concerning permits that
are issued under section 1535.02 of the Revised Code:
(a) The amount of the fee for a permit;
(b) Procedures for the issuance, denial, modification,
renewal, suspension, and revocation of permits;
(c) Requirements governing the modification of permits;
(d) Grounds for the denial, suspension, or revocation of
permits in addition to the grounds established in division (D) of
section 1535.02 of the Revised Code.
(3) Establish performance standards for ballast water
discharge and the management of other vectors of aquatic nuisance
species introduced from oceangoing vessels, including sea chests,
anchor chains, hull fouling, and sediment in ballast tanks, for
the purpose of eliminating the risk of introduction of plant,
animal, and human pathogens into the state waters of Lake Erie.
The standards shall identify environmentally sound technology and
methods that shall be used to prevent the discharge of aquatic
nuisance species.
(4) Establish a system of inspections to be conducted by the
division of wildlife to ensure that oceangoing vessels comply with
the rules adopted under division (A)(3) of this section. The rules
shall include requirements for sampling of water or sediment,
whichever is applicable, in ballast tanks, sea chests, anchor
chains, hulls, and any other locations on an oceangoing vessel
that the chief determines are necessary. The rules also shall
establish requirements governing the imposition of inspection fees
on oceangoing vessels that are subject to inspection.
(5) Establish the amount of the civil penalty that may be
assessed under section 1535.06 of the Revised Code. The amount of
the penalty shall be not less than twenty-five thousand dollars
for each violation.
(6) Establish any other requirements and procedures that the
chief determines are necessary to administer and enforce this
chapter.
(B) In adopting rules under this section, the chief shall
consult with the other states and Canadian provinces that border
the Great Lakes in an effort to ensure uniform regulatory policies
among the states and provinces.
(C) Beginning January 1, 2008, the chief, at least every
three years, shall review the rules adopted under division (A)(3)
of this section to determine whether the performance standards
established in those rules have prevented the introduction into
and the reduction of the spread of aquatic nuisance species within
the state waters of Lake Erie. If the chief determines that the
performance standards have not prevented the introduction into and
the reduction of the spread of aquatic nuisance species within the
state waters of Lake Erie, the chief may adopt revised rules that
establish alternative performance standards.
(D) No person shall violate a rule adopted under this
section.
Sec. 1535.04. In order to address discharges of aquatic
nuisance species from oceangoing vessels that damage water
quality, aquatic habitat, or fish or wildlife, the chief of the
division of wildlife shall facilitate the formation of a Great
Lakes aquatic nuisance species coalition. The Great Lakes aquatic
nuisance species coalition shall be formed through an agreement
entered into with other states in the Great Lakes basin and with
Canadian Great Lakes provinces. The purpose of the coalition shall
be to recommend and implement on a basin-wide basis water
pollution control laws that prohibit the discharge of aquatic
nuisance species into the Great Lakes from oceangoing vessels. The
chief shall attempt to enter into the agreement so that the
agreement is effective not later than twelve months after the
effective date of this section. The chief shall consult with other
appropriate state and federal agencies prior to entering into the
agreement, including, but not limited to, the environmental
protection agency and the United States environmental protection
agency.
Sec. 1535.05. The chief of the division of wildlife shall
cooperate to the fullest extent practicable with other Great Lakes
basin states, the Canadian Great Lakes provinces, the Great Lakes
panel on aquatic nuisance species, the Great Lakes fishery
commission, the international joint commission, and the Great
Lakes commission to ensure development of standards for the
control of aquatic nuisance species that are broadly protective of
the waters of the state and other natural resources.
Sec. 1535.06. (A) The chief of the division of wildlife may
request the attorney general, in writing, to bring an action for a
civil penalty in a court of competent jurisdiction against any
person who has violated or is violating this chapter or a rule
adopted or a term of a permit issued under it. The court may
impose on the person a civil penalty in the amount established in
rules.
(B)(1) A person may bring a civil action for a violation of
this chapter or a rule adopted or permit issued under it on behalf
of the person or on behalf of the state. A person may not bring an
action under this division against the state or a political
subdivision, a department, board, office, commission, agency,
institution, or other instrumentality of the state or a political
subdivision, or an officer or employee of the state or a political
subdivision.
(2) A copy of the complaint and written disclosure of
substantially all material evidence and information that the
person possesses shall be served on the attorney general pursuant
to Civil Rule 4.2(J). The complaint shall be filed in camera,
shall remain under seal for at least sixty days, and shall not be
served on the defendant until the court so orders. The state may
elect to intervene and proceed with the action within sixty days
after it receives both the complaint and the material evidence and
information.
(3) The state, for good cause shown, may file motions with
the court requesting extensions of the time during which the
complaint remains under seal. Such a motion may be supported by
affidavits or other submissions in camera. The defendant shall not
be required to respond to a complaint filed under this division
until twenty-eight days after the complaint is unsealed and served
on the defendant pursuant to Civil Rule 4.
(4) Before the expiration of the sixty-day period established
under division (B)(2) of this section or any extensions obtained
under division (B)(3) of this section, the state shall either
proceed with the action or notify the court that it declines to
proceed with the action. If the state proceeds with the action,
the state shall conduct the action. If the state declines to
proceed with the action, the person bringing the action has the
right to conduct the action.
(5) When a person brings an action under division (B)(1) of
this section, no person other than the state may intervene or
bring a related action based on the facts underlying that pending
action.
(C)(1) If the state proceeds with an action under division
(B) of this section, it has the primary responsibility for
prosecuting the action and is not bound by an action of the person
bringing the action. The person bringing the action has the right
to continue as a party to the action, subject to the limitations
established in division (C)(2) of this section.
(2)(a) The state may dismiss an action brought under division
(B) of this section notwithstanding the objections of the person
initiating the action if the person has been notified by the state
of the filing of the motion to dismiss and the court has provided
the person with an opportunity for a hearing on the motion.
(b) The state may settle an action brought under division (B)
of this section with the defendant notwithstanding the objections
of the person initiating the action if the court determines, after
a hearing, that the proposed settlement is fair, adequate, and
reasonable under all the circumstances. Upon a showing of good
cause, the court may hold the hearing in camera.
(c) Upon a showing by the state that unrestricted
participation during the course of the litigation by the person
initiating the action would interfere with or unduly delay the
state's prosecution of the case or would be repetitious,
irrelevant, or for purposes of harassment, the court, in its
discretion, may impose limitations on the person's participation,
including, but not limited to, all of the following:
(i) Limiting the number of witnesses that the person may
call;
(ii) Limiting the length of the testimony of witnesses;
(iii) Limiting the person's cross-examination of witnesses;
(iv) Otherwise limiting the participation by the person in
the litigation.
(d) Upon a showing by the defendant that unrestricted
participation during the course of the litigation by the person
initiating an action under division (B) of this section would be
for purposes of harassment or would cause the defendant undue
burden or unnecessary expense, the court may limit participation
by the person initiating the action in the litigation.
(3) If the state declines to proceed with an action brought
by a person under division (B) of this section and the person
conducts the action, the state may request to be served with
copies of all pleadings filed in the action and to be supplied
with copies of all deposition transcripts at the state's expense.
When the person proceeds with the action, the court, without
limiting the status and rights of the person initiating the
action, may permit the state to intervene at a later date upon a
showing of good cause.
(4) Whether or not the state proceeds with the action, upon a
showing by the state that certain discovery by the person
initiating the action would interfere with the state's
investigation or prosecution of a civil matter arising out of the
same facts, the court may stay that discovery for a period of not
more than sixty days. The showing shall be conducted in camera.
The court may extend the sixty-day period upon a further showing
in camera that the state has pursued the criminal or civil
investigation or proceedings with reasonable diligence and any
proposed discovery in the civil action will interfere with the
ongoing criminal or civil investigation or proceedings.
(D)(1) Except as otherwise provided in this division, if the
state proceeds with an action brought by a person under division
(B) of this section, the person shall receive at least fifteen per
cent, but not more than twenty-five per cent of the proceeds of
the action or settlement of the claim, depending on the extent to
which the person substantially contributed to the prosecution of
the action. If the action is one that the court finds to be based
primarily on disclosures of specific information, other than
information provided by the person bringing the action, the court
may award the sums that it considers appropriate, but in no case
more than ten per cent of the proceeds, taking into account the
significance of the information and the role of the person
bringing the action in advancing the case to litigation. Any
payment to a person under this division shall be made from the
proceeds. The person shall also receive an amount for reasonable
expenses that the court finds to have been necessarily incurred
plus reasonable attorney's fees and costs. All expenses, fees, and
costs shall be awarded against the defendant.
(2) If the state does not proceed with an action brought by a
person under division (B) of this section, the person bringing the
action or settling the claim shall receive an amount that the
court decides is reasonable for collecting the civil penalty and
damages. The amount shall be not less than twenty-five per cent
and not more than thirty per cent of the proceeds of the action or
settlement and shall be paid out of the proceeds. The person also
shall receive an amount for reasonable expenses that the court
finds to have been necessarily incurred plus reasonable attorney's
fees and costs. All expenses, fees, and costs shall be awarded
against the defendant.
(3) If the state does not proceed with the action and the
person bringing the action conducts the action, the court may
award to the defendant its reasonable attorney's fees and expenses
if the defendant prevails in the action and the court finds that
the claim of the person bringing the action was clearly frivolous,
clearly vexatious, or brought primarily for purposes of
harassment.
(E)(1) A person may not bring an action under division (B) of
this section that is based on allegations or transactions that are
the subject of a civil action proceeding in which the state is
already a party.
(2) A person may not bring an action under this section that
is based on the public disclosure of allegations or transactions
in a criminal, civil, legislative, or administrative hearing,
report, audit, or investigation, or from the news media, unless
the person bringing the action has direct and independent
knowledge of the information on which the allegations are based
and has voluntarily provided the information to the state before
filing an action based on the information under this section. This
division does not apply to the bringing of an action by the state.
(F) The state is not liable for expenses that a person incurs
in bringing an action under this section.
Sec. 1535.07. (A) All money collected by the chief of the
division of wildlife under this chapter and all money from actions
brought under section 1535.06 of the Revised Code shall be
deposited in the state treasury to the credit of the aquatic
nuisance species prevention fund, which is hereby created in the
state treasury. All investment earnings of the fund shall be
credited to the fund.
(B) Money in the fund shall be used by the chief for all of
the following:
(1) Prevention of the introduction of aquatic nuisance
species into the state waters of Lake Erie;
(2) Control of the spread of aquatic nuisance species that
exist in the state waters of Lake Erie prior to the effective date
of this section;
(3) Reclamation of aquatic resources in the state that have
been injured as a result of aquatic nuisance species;
(4) The administration of this chapter and rules adopted
under it.
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