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.

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.