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H. B. No. 570 As IntroducedAs Introduced
130th General Assembly | Regular Session | 2013-2014 |
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Cosponsors:
Representatives Gerberry, Barborak, Celebrezze
A BILL
To amend sections 4905.54, 4905.57, 4905.95, 4907.47,
4907.60, 4921.21, and 4973.11 and to enact
sections 4905.97, 4905.971, 4905.972, 4905.973,
4905.974, and 4905.975 of the Revised Code to
require that a portion of forfeitures assessed for
violations or compliance failures resulting in
property damage be paid to the political
subdivision in which the damage occurred or to a
political subdivision or state agency that
incurred costs in remediating the violation or
compliance failure.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 4905.54, 4905.57, 4905.95, 4907.47,
4907.60, 4921.21, and 4973.11 be amended and sections 4905.97,
4905.971, 4905.972, 4905.973, 4905.974, and 4905.975 of the
Revised Code be enacted to read as follows:
Sec. 4905.54. Every public utility or railroad and every
officer of a public utility or railroad shall comply with every
order, direction, and requirement of the public utilities
commission made under authority of this chapter and Chapters
4901., 4903., 4907., and 4909. of the Revised Code, so long as
they remain in force. Except as otherwise specifically provided in
section 4905.95 of the Revised Code, the public utilities
commission may assess a forfeiture of not more than ten thousand
dollars for each violation or failure against a public utility or
railroad that violates a provision of those chapters or that after
due notice fails to comply with an order, direction, or
requirement of the commission that was officially promulgated.
Each day's continuance of the violation or failure is a separate
offense. All Except as provided in sections 4905.97 to 4905.975 of
the Revised Code, all forfeitures collected under this section
shall be credited to the general revenue fund.
Sec. 4905.57. Except as otherwise specifically provided in
sections 4905.96 and 4923.99 of the Revised Code, actions to
recover forfeitures provided for in this chapter and Chapters
4901., 4903., 4907., 4909., and 4923. of the Revised Code shall be
prosecuted in the name of the state and may be brought in the
court of common pleas of any county in which the public utility,
railroad, or motor carrier is located. Such actions shall be
commenced and prosecuted by the attorney general when the attorney
general is directed to do so by the public utilities commission.
Moneys Except as provided in sections 4905.97 to 4905.975 of the
Revised Code, moneys recovered by such actions shall be deposited
in the state treasury to the credit of the general revenue fund.
Sec. 4905.95. (A) Except as otherwise provided in division
(C) of this section:
(1) The public utilities commission, regarding any proceeding
under this section, shall provide reasonable notice and the
opportunity for a hearing in accordance with rules adopted under
section 4901.13 of the Revised Code.
(2) Sections 4903.02 to 4903.082, 4903.09 to 4903.16, and
4903.20 to 4903.23 of the Revised Code apply to all proceedings
and orders of the commission under this section and to all
operators subject to those proceedings and orders.
(B) If, pursuant to a proceeding it specially initiates or to
any other proceeding and after the hearing provided for under
division (A) of this section, the commission finds that:
(1) An operator has violated or failed to comply with, or is
violating or failing to comply with, sections 4905.90 to 4905.96
of the Revised Code or the pipe-line safety code, the commission
by order:
(a) Shall require the operator to comply and to undertake
corrective action necessary to protect the public safety;
(b) May assess upon the operator forfeitures of not more than
one hundred thousand dollars for each day of each violation or
noncompliance, except that the aggregate of such forfeitures shall
not exceed one million dollars for any related series of
violations or noncompliances. In determining the amount of any
such forfeiture, the commission shall consider all of the
following:
(i) The gravity of the violation or noncompliance;
(ii) The operator's history of prior violations or
noncompliances;
(iii) The operator's good faith efforts to comply and
undertake corrective action;
(iv) The operator's ability to pay the forfeiture;
(v) The effect of the forfeiture on the operator's ability to
continue as an operator;
(vi) Such other matters as justice may require.
All Except as provided in sections 4905.97 to 4905.975 of the
Revised Code, all forfeitures collected under this division or
section 4905.96 of the Revised Code shall be deposited in the
state treasury to the credit of the general revenue fund.
(c) May direct the attorney general to seek the remedies
provided in section 4905.96 of the Revised Code.
(2) An intrastate pipe-line transportation facility is
hazardous to life or property, the commission by order:
(a) Shall require the operator of the facility to take
corrective action to remove the hazard. Such corrective action may
include suspended or restricted use of the facility, physical
inspection, testing, repair, replacement, or other action.
(b) May direct the attorney general to seek the remedies
provided in section 4905.96 of the Revised Code.
(C) If, pursuant to a proceeding it specially initiates or to
any other proceeding, the commission finds that an emergency
exists due to a condition on an intrastate pipe-line
transportation facility posing a clear and immediate danger to
life or health or threatening a significant loss of property and
requiring immediate corrective action to protect the public
safety, the commission may issue, without notice or prior hearing,
an order reciting its finding and may direct the attorney general
to seek the remedies provided in section 4905.96 of the Revised
Code. The order shall remain in effect for not more than forty
days after the date of its issuance. The order shall provide for a
hearing as soon as possible, but not later than thirty days after
the date of its issuance. After the hearing the commission shall
continue, revoke, or modify the order and may make findings under
and seek appropriate remedies as provided in division (B) of this
section.
Sec. 4905.97. The public utilities commission, in assessing
a forfeiture pursuant to section 4905.54, 4905.95, 4907.47,
4907.60, 4923.99, or 4973.11 of the Revised Code, shall determine
whether the violation or compliance failure for which the
forfeiture is assessed resulted in one or both of the following:
(A) Damage in excess of one thousand dollars to property,
other than the property of the person required to pay the
forfeiture;
(B) Remediation costs in excess of one thousand dollars,
incurred by either of the following:
(1) A political subdivision involved in the remediation
effort;
(2) A state agency involved in the remediation effort.
If the commission determines that such damage occurred, or
such remediation costs have been incurred, those forfeitures
collected or recovered shall be placed in the local damage payment
fund created in section 4905.971 of the Revised Code.
Sec. 4905.971. There is hereby created the local damage
payment fund, which shall be in the custody of the state treasurer
but shall not be a part of the state treasury. The fund shall
consist of money deposited into the fund as required under section
4905.97 of the Revised Code. Money in the fund shall be used in
accordance with section 4905.972 of the Revised Code. Investment
earnings on money in the fund shall be retained by the fund.
Sec. 4905.972. (A) The public utilities commission shall
disburse money from each forfeiture described in section 4905.97
of the Revised Code to the following entities, if the commission
approves their application for disbursement:
(1) A political subdivision in which the property damage
occurred;
(2) A political subdivision that incurred costs to remediate
the violation or compliance failure;
(3) An agency of this state that incurred costs to remediate
the violation or compliance failure.
(B) Before making the distribution, the commission may retain
from the forfeiture amount collected or recovered an amount
necessary to cover its administrative costs pursuant to this
section, but not to exceed thirty per cent of the forfeiture
collected or recovered.
(C) The amount disbursed shall be equal to the amount of the
forfeiture collected or recovered less the amount retained by the
commission as allowed by this section.
(D) To the extent that multiple entities apply for
disbursement of funds under this section for a specific violation
or compliance failure, the commission shall review the
applications and apportion the funds for disbursal based upon each
applicant's percentage of remediation costs incurred or damages
sustained to the total of remediation costs incurred and damages
sustained resulting from the violation or compliance failure.
Sec. 4905.973. Funds disbursed to an agency under division
(A)(3) of section 4905.972 of the Revised Code are not subject to
section 113.08 of the Revised Code. The agency shall deposit the
funds received into the remediation cost reimbursement fund, which
is hereby created in the custody of the treasurer of state but not
as a part of the state treasury. The money in the fund shall be
used to reimburse contributing agencies for their remediation
costs to the extent of their contributions to the fund plus any
investment earnings on those contributions. All investment
earnings of the fund shall be credited to the fund.
Sec. 4905.974. Annually, between the thirtieth day of June
and the thirty-first day of July, the public utilities commission
shall certify to the office of budget and management the balance
in the local damage payment fund that exceeds the amount pledged
for disbursements under section 4905.972 of the Revised Code. On
the thirty-first day of July, or as soon as possible thereafter,
the director of budget and management shall transfer the excess
amount to the general revenue fund.
Sec. 4905.975. The public utilities commission shall adopt
rules as necessary to implement the requirements of sections
4905.97 to 4905.974 of the Revised Code, including rules that
establish and govern an application process for the disbursement
of money from forfeitures under section 4905.972 of the Revised
Code.
Sec. 4907.47. (A) If, after public hearing as to the
necessity for installing protective devices at a public railroad
highway grade crossing, written notice of which is published once
a week for three consecutive weeks in a newspaper of general
circulation in the county in which the crossing is located and is
given the railroad and public authority involved at least thirty
days in advance of such hearing, it is the opinion of the public
utilities commission that the public safety requires a gate,
automatic alarm bell, or other mechanical device to be erected and
maintained at any place where a public road or street is crossed
at the same level by a railroad, and the crossing has been
declared by the commission to be so dangerous and hazardous as to
require additional protective devices, or the public safety
requires that a flagman flagger be stationed and maintained at
such crossing, the commission shall give the superintendent,
manager, or other officer in charge of such railroad a written
order of what is required, and shall assign the cost of installing
any such device between the railroad and the public in any
proportion it determines proper that is consistent with any
applicable federal requirements, after giving due consideration to
the factors listed in division (B) of this section.
(B) In assigning the cost of any such device the commission
shall consider factors of volume of vehicular traffic, volume of
train traffic, train type and speed, limitations of view and the
causes thereof, savings, if any, which will inure to the railroad
as the result of the installation, benefits to the public
resulting from the reduction of hazard at the crossing, the
probable cost of the installation, the future cost to the railroad
of maintaining any such device, and any other special factors and
conditions that the commission considers relevant. The commission
may accept a railroad's agreement to maintain the installation as
being its share of the cost for the protection. If any part of the
cost is assigned to the public, it shall be apportioned to the
state agency or political subdivision having jurisdiction over
such crossing, and may be paid from any funds levied and made
available for highway or street purposes; provided, that funds
from the grade crossing protection fund created by section
4907.472 of the Revised Code may be used to pay the public's share
of the cost. After the commission has issued an appropriate order
requiring that additional protective devices be installed by a
specific date, which shall be a reasonable time from the date of
the order, the railroad concerned shall erect or install the
additional protective devices or station the flagman flagger
within the time prescribed by the order. If the additional
protective devices are not erected or installed within that time,
the commission may reduce or eliminate the amount of any funds in
the grade crossing protection fund obligated to pay the public's
share of the costs relating to the erection, installation, and
maintenance of the additional protective devices and, consistent
with any applicable federal requirements, may assign to the
railroad concerned any amount, up to one hundred per cent, of the
total amount of the costs of erecting, installing, and maintaining
the additional protective devices.
Any person owning or operating a railroad and neglecting or
refusing to erect or maintain such gate, automatic alarm bell, or
other mechanical device, or to maintain such flagman flagger, when
required by the commission pursuant to this section or section
4907.471 of the Revised Code, and after the commission has issued
an appropriate order finding that the public funds will be made
available with respect to any protective device it has ordered
installed, shall forfeit to the state, for every such neglect or
refusal, one thousand dollars, and in addition, shall forfeit one
thousand dollars for each day such neglect or refusal continues.
Except as provided in sections 4905.97 to 4905.975 of the Revised
Code, moneys collected from forfeitures under this section shall
be deposited to the state treasury to the credit of the general
revenue fund.
Sec. 4907.60. If a railroad fails to perform a duty enjoined
upon it by Chapter 4901., 4903., 4905., 4907., 4909., or 4959. of
the Revised Code, or does any act prohibited by any of those
chapters, for which failure or act no penalty or forfeiture has
been provided by law, or fails to obey a lawful requirement or
order made by the public utilities commission or order of any
court upon application of the commission, the railroad, except as
otherwise specifically provided in section sections 4905.95 and
4905.97 to 4905.975 of the Revised Code, shall forfeit into the
state treasury not less than one hundred nor more than ten
thousand dollars for each violation or failure. In construing and
enforcing this section, the act, omission, or failure of any
officer, agent, or other person acting for or employed by a
railroad, while acting within the scope of the officer's, agent's,
or other person's employment, is the act, omission, or failure of
the railroad.
Sec. 4921.21. (A) As used in this section, "adjusted credit
amount" means the aggregate amount credited to the public
utilities transportation safety fund, less the sum of all of the
following:
(1) The fees collected by the public utilities commission, in
accordance with the unified carrier registration plan under
section 4921.11 of the Revised Code, that exceed the federal
certification of revenue for each year of the plan;
(2) The fees collected by the commission on behalf of other
states under division (C) of section 4921.15 of the Revised Code;
(3) The forfeitures collected by the commission under section
4923.99 of the Revised Code for violations of rules adopted under
division (A)(2) of section 4923.04 of the Revised Code.
(B)(1) There is hereby created in the state treasury the
public utilities transportation safety fund. The fees collected in
accordance with the unified carrier registration plan under
section 4921.11 of the Revised Code, the fees collected under
section 4921.15 of the Revised Code, the taxes and fees remitted
under section 4921.19 of the Revised Code, the forfeitures imposed
under section 4923.99 of the Revised Code, except as provided in
division (B)(2) of this section, and the fines collected under
section 4163.07 of the Revised Code shall be deposited into the
state treasury to the credit of the public utilities
transportation safety fund, until the adjusted credit amount in a
fiscal year is equal to the total amount appropriated from the
fund for the fiscal year. Once this point of parity is reached,
any additional fees, taxes, forfeitures, or fines received during
the fiscal year shall be credited to the general revenue fund,
except as provided in division (B)(2) of this section, and except
for both of the following:
(a) The fees collected in accordance with the unified carrier
registration plan under section 4921.11 of the Revised Code, that
exceed the federal certification of revenue for each year of the
plan;
(b) The fees collected on behalf of other states under
division (C) of section 4921.15 of the Revised Code.
(2) The first eight hundred thousand dollars of forfeitures
collected under section 4923.99 of the Revised Code, for
violations of rules adopted under division (A)(2) of section
4923.04 of the Revised Code, during each fiscal year shall be
credited to the public utilities transportation safety fund. Any
forfeitures in excess of that amount shall be deposited into the
general revenue fund, except for those excess forfeitures
deposited as required by sections 4905.97 to 4905.975 of the
Revised Code. In each fiscal year, the commission shall distribute
moneys from these forfeitures credited to the public utilities
transportation safety fund for the purposes of emergency response
planning and the training of safety, enforcement, and emergency
services personnel in proper techniques for the management of
hazardous materials releases that occur during transportation or
otherwise. For these purposes, fifty per cent of all such moneys
credited to the public utilities transportation safety fund shall
be distributed to Cleveland state university, forty-five per cent
shall be distributed to other educational institutions, state
agencies, regional planning commissions, and political
subdivisions, and five per cent shall be retained by the
commission for the administration of this section and for training
employees. However, if, in any such period, moneys from these
forfeitures credited to the public utilities transportation safety
fund equal an amount less than four hundred thousand dollars, the
commission shall distribute, to the extent of the aggregate amount
of those moneys, two hundred thousand dollars to Cleveland state
university and the remainder to other educational institutions,
state agencies, regional planning commissions, and political
subdivisions.
(C) The purpose of the public utilities transportation safety
fund shall be for defraying all expenses incident to maintaining
the nonrailroad transportation activities of the commission.
(D) There is hereby created in the state treasury the federal
commercial vehicle transportation systems fund. The fund shall
consist of money received from the United States department of
transportation's commercial vehicle intelligent transportation
systems infrastructure deployment program. The public utilities
commission shall use the fund to deploy the Ohio commercial
vehicle information systems networks project and to improve safety
of motor carrier operations through electronic exchange of data.
(E) There is hereby created in the state treasury the motor
carrier safety fund. The fund shall consist of money received from
the United States department of transportation for motor carrier
safety. The commission shall use the fund to administer the
state's motor carrier safety assistance program and associated
grants, including the motor carrier safety assistance program
basic grant, the incentive grant, the high priority grants, the
new entrant safety assurance grant, the safety data improvement
grant, or their equivalents.
(F) If the director of budget and management determines there
is not sufficient money in the public utilities transportation
safety fund, the director shall transfer money from the general
revenue fund to the public utilities transportation safety fund in
an amount up to the difference between the balance of the public
utilities transportation safety fund and the appropriations from
that fund. If the director subsequently determines during the
fiscal year that the balance of the public utilities
transportation safety fund exceeds the amount needed to support
the appropriations from the fund, the director shall transfer the
excess money, up to the amount of the original transfer, to the
general revenue fund.
Sec. 4973.11. No company operating a railroad over thirty
miles in length or an interurban railroad or street railway over
four miles in length shall permit a conductor, engineer, fireman
fire tender,
brakeman brakeperson, or trainman trainperson on a
train, a telegraph operator, or a conductor or motorman car
operator on a street railway, who has worked as such for fifteen
consecutive hours, again to go on duty or perform work until he
the person has had at least eight hours' rest, except in cases of
detention of trains or cars caused by accident, unavoidable or
otherwise. Such companies shall so regulate the hours of
employment of their employees that each employee shall have at
least eight consecutive hours of rest in each period of
twenty-four hours.
A railroad company which that knowingly violates this section
shall forfeit not less than five hundred nor more than one
thousand dollars for the first offense, and for any subsequent
offense, not less than one thousand nor more than fifteen hundred
dollars, to be recovered by civil action in the name of the state.
Except as provided in sections 4905.97 to 4905.975 of the Revised
Code, forfeiture under this section shall be deposited in the
state treasury to the credit of the general revenue fund.
Section 2. That existing sections 4905.54, 4905.57, 4905.95,
4907.47, 4907.60, 4921.21, and 4973.11 of the Revised Code are
hereby repealed.
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