Chapter 3751: HAZARDOUS SUBSTANCES

3751.01 Hazardous substances definitions.

As used in this chapter:

(A) "Confidential business information" means the types or categories of information identified in rules adopted under division (A)(1)(g) of section 3751.02 of the Revised Code.

(B) "Facility" means all buildings, equipment, structures, and other stationary items that are located on a single site or on contiguous or adjacent sites and that are owned or operated by the same person or by any person who controls, is controlled by, or is under common control with such person.

(C) "Manufacture" means the production, preparation, importation, or compounding of a toxic chemical. The term also applies to a toxic chemical produced coincidentally during the manufacture, processing, use, or disposal of another substance or mixture including, without limitation, byproducts and coproducts that are separated from the other substance or mixture and impurities that remain in that substance or mixture.

(D) "Person" includes the state, any political subdivision or other state or local body, the United States and any agency or instrumentality thereof, and any entity defined as a person under section 1.59 of the Revised Code.

(E) "Process" means the preparation of a toxic chemical after its manufacture for distribution in commerce:

(1) In the same form or physical state as, or in a different form or physical state from, that in which it was received by the person so preparing such chemical;

(2) As part of an article containing the toxic chemical.

(F) "Release" means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or discharging into the environment of any toxic chemical including, without limitation, the abandonment or discarding of barrels, containers, and other closed receptacles that contained a toxic chemical.

(G) "Toxic chemical" means a chemical listed in rules adopted under division (A)(1)(a) of section 3751.02 of the Revised Code.

Effective Date: 12-14-1988

3751.02 Adoption of rules.

(A) The director of environmental protection shall:

(1) Adopt rules in accordance with Chapter 119. of the Revised Code that are consistent with and equivalent in scope, content, and coverage to, and no more stringent than section 313 of the "Emergency Planning and Community Right-To-Know Act of 1986," 100 Stat. 1741, 42 U.S.C. 11023 , and regulations adopted under that section:

(a) Identifying and listing toxic chemicals, establishing threshold quantities for any such chemical used, manufactured, or processed at a facility that differ from and supersede a threshold quantity prescribed in division (C) of section 3751.03 of the Revised Code, and establishing ranges of quantities of those chemicals to be used in preparing toxic chemical release forms under that section. The rules may establish different annual threshold quantities based upon whether a toxic chemical is used, manufactured, or processed at a facility or based upon classes of chemicals or categories of facilities.

(b) Adding or deleting standard industrial classification codes from the list in division (A)(1) of section 3751.03 of the Revised Code establishing the categories of facilities subject to the reporting requirements of that section;

(c) Applying the reporting requirements of section 3751.03 of the Revised Code to owners or operators of individual facilities in this state that manufacture, process, or otherwise use a toxic chemical, in addition to those subject to the reporting requirements of that section pursuant to the criteria contained in it or rules adopted under division (A)(1)(a) or (b) of this section;

(d) Modifying the frequency for submitting the report required by division (A) of section 3751.03 of the Revised Code applicable to:

(i) All toxic chemical release forms required to be submitted by division (A) of section 3751.03 of the Revised Code;

(ii) A class of toxic chemicals or a category of facilities;

(iii) A specific toxic chemical;

(iv) A specific facility.

(e) Establishing procedures for receiving and fulfilling requests from the public for information held by the director under this chapter;

(f) Establishing procedures and criteria to protect trade secret and confidential business information from unauthorized disclosure;

(g) Identifying the types or categories of information submitted or obtained under this chapter and rules adopted under it that constitute confidential business information;

(h) Establishing other requirements or authorizations that the director considers necessary or appropriate to implement and administer this chapter.

(2) Adopt rules in accordance with Chapter 119. of the Revised Code requiring that all claims for protection of information obtained under this chapter as a trade secret be submitted to the administrator of the United States environmental protection agency for determination under section 322 of the "Emergency Planning and Community Right-To-Know Act of 1986," 100 Stat. 1747, 42 U.S.C. 11042 , and regulations adopted under that section.

(3) Prescribe and publish a uniform toxic release form to be used by owners or operators of facilities subject to the reporting requirements of section 3751.03 of the Revised Code. The form shall require the submission of only the information and certifications required by division (B) of section 3751.03 of the Revised Code and such additional information as is required to be provided on the uniform toxic chemical release form published by the administrator under section 313 of the "Emergency Planning and Community Right-To-Know Act of 1986," 100 Stat. 1741, 42 U.S.C. 11023 .

(B) The director may:

(1) As the representative of the governor pursuant to section 313(b) of the "Emergency Planning and Community Right-To-Know Act of 1986," 100 Stat. 1741, 42 U.S.C. 10041, request the administrator of the United States environmental protection agency to apply the toxic chemical release reporting requirements of section 313 of that act to the owner or operator of any facility in this state that manufactures, processes, or otherwise uses a toxic chemical if, in the director's judgment, such reporting is warranted by the toxicity of the toxic chemical manufactured, processed, or otherwise used at the facility; the proximity of the facility to other facilities that release the toxic chemical or to population centers; or the history of releases of the toxic chemical at the facility;

(2) As the representative of the governor pursuant to section 313(e)(2) of the "Emergency Planning and Community Right-To-Know Act of 1986," 100 Stat. 1741, 42 U.S.C. 11041 , petition the administrator to, by regulation, add a chemical to or delete a chemical from the list of toxic chemicals subject to the toxic chemical release reporting requirements of section 313 of that act if, in the director's judgment, the chemical meets the criteria of paragraph (d)(2) or (3) of that section.

Effective Date: 12-14-1988

3751.03 Submitting uniform toxic chemical release forms.

(A)

(1) On or before the first day of July of each year or as otherwise prescribed in rules adopted under division (A)(1)(d) of section 3751.02 of the Revised Code, the owner or operator of a facility that is in standard industrial classification codes 20 to 39 and any other codes added by rules adopted under division (A)(1)(b) of section 3751.02 of the Revised Code, as those standard industrial classification codes were in effect on July 1, 1985, that has ten or more full-time employees, and that manufactured, processed, or otherwise used during the preceding calendar year a toxic chemical in an amount exceeding the applicable threshold quantity established in division (C) of this section or otherwise prescribed in rules adopted under division (A)(1)(a) of section 3751.02 of the Revised Code, shall prepare and submit to the director of environmental protection a completed toxic chemical release form for each toxic chemical that was so manufactured, processed, or otherwise used at the facility during the preceding calendar year. The owner or operator shall submit the information required by division (B) of this section on a uniform toxic chemical release form prescribed under division (A)(3) of section 3751.02 of the Revised Code. If the director has not prescribed the form, an owner or operator shall submit the information required to be included on the form under that division to the director by means of a letter postmarked not later than the date on which the form is due under this division.

(2) In addition to the owners or operators of facilities meeting the criteria enumerated in division (A)(1) of this section, the owners and operators of facilities identified in rules adopted under division (A)(1)(c) of section 3751.02 of the Revised Code shall comply with division (A)(1) of this section. Division (A)(1) of this section does not apply to the owner or operator of a facility in a standard industrial classification code that has been deleted from the list in division (A)(1) of this section by rules adopted under division (A)(1)(b) of section 3751.02 of the Revised Code.

(B) The uniform toxic chemical release form shall contain all of the following information:

(1) The name, location of, and principal business activities conducted at the facility;

(2) Each of the following items of information regarding the toxic chemical:

(a) Whether the toxic chemical is manufactured, processed, or otherwise used and the general category or categories of use of the chemical;

(b) An estimate of the maximum amount in pounds of the toxic chemical present at the facility at any time during the preceding calendar year. The estimate shall be provided in the appropriate reporting range established by rules adopted under division (A)(1)(a) of section 3751.02 of the Revised Code.

(c) The waste treatment or disposal methods employed for each waste stream and an estimate of the efficiency typically achieved by those methods for that waste stream;

(d) The quantity of the toxic chemical entering each environmental medium annually;

(e) An indication as to whether the owner or operator chooses to withhold information about it as a trade secret and, if so, whether the owner or operator has filed a claim with the administrator of the United States environmental protection agency for protection of that information as a trade secret pursuant to rules adopted under division (A)(2) of section 3751.02 of the Revised Code.

(3) An appropriate certification regarding the accuracy and completeness of the report, signed by an official of the owner or operator with management responsibility.

(C) The threshold amounts for purposes of reporting toxic chemicals under this section are as follow:

(1) With respect to a toxic chemical used at a facility, ten thousand pounds for the applicable calendar year;

(2) With respect to a toxic chemical manufactured or processed at a facility:

(a) For the form required to be submitted on or before July 1, 1989, fifty thousand pounds per year;

(b) For the form required to be submitted on or before July 1, 1990, and for each year thereafter, twenty-five thousand pounds per year;

(c) Such other threshold quantities as may be prescribed by rules adopted under division (A)(1)(a) of section 3751.02 of the Revised Code.

(D) The toxic chemical release forms required by this section are intended to provide information to federal, state, and local governments and the public, including residents of communities surrounding facilities covered by this section. Subject to the limitations prescribed in section 3751.04 of the Revised Code and rules adopted under division (A)(1)(f) of section 3751.02 of the Revised Code governing the protection of trade secrets and confidential business information, the director, upon request, shall make toxic chemical release forms submitted under this section available to inform persons about releases of toxic chemicals to the environment, to assist government agencies, researchers, and other persons in conducting research and gathering data, to aid in the development of appropriate rules, guidelines, standards, and emergency plans, and for other similar purposes.

(E) No owner or operator of a facility who is required by this section to file a toxic chemical release form shall fail to submit a toxic chemical release form as required by this section.

(F) An owner or operator of a facility who is required under this section to file a toxic chemical release form and who knowingly makes a false statement on that form, on a record upon which the information on that form is based, or on other information or records required to be kept or submitted under this chapter and the rules adopted under this chapter is guilty of falsification under section 2921.13 of the Revised Code.

Effective Date: 07-01-1996

3751.04 Specific chemical identity as trade secret.

(A) Except as otherwise provided in division (D) of this section, any person required to provide information to the director of environmental protection under section 3751.03 of the Revised Code may withhold from submission to the director or any other person the specific chemical identity, including the chemical name and other specific identification, of the toxic chemical on the grounds that the information constitutes a trade secret if either of the following conditions is met:

(1)

(a) At the time of submitting the information sought to be classified as a trade secret, the owner or operator of the facility submits a claim for protection of that information as a trade secret pursuant to rules adopted under division (A)(2) of section 3751.02 of the Revised Code, and submits a copy of the required toxic chemical release form that indicates that such a claim has been filed and contains the generic class or category of the identity in place of the identity and that is accompanied by a copy of the substantiation supporting the trade secret claim that was submitted to the administrator of the United States environmental protection agency. The owner or operator may withhold from the copy of the explanations and supplemental information submitted to the director information identified as confidential business information in rules adopted under division (A)(1)(g) of section 3751.02 of the Revised Code.

(b) A determination of the claim remains pending pursuant to those rules.

(2) It has been determined pursuant to rules adopted under division (A)(2) of section 3751.02 of the Revised Code that a trade secret exists.

(B) No person shall withhold the specific identity of a toxic chemical on the grounds that the information is a trade secret in either of the following instances:

(1) From any toxic chemical release form if it has been determined pursuant to rules adopted under division (A)(2) of section 3751.02 of the Revised Code that no trade secret exists;

(2) When required to provide the specific chemical identity to a health professional, physician, or nurse pursuant to division (D) of this section.

(C) The governor may, pursuant to section 322 of the "Emergency Planning and Community Right-To-Know Act of 1986," 100 Stat. 1747, 42 U.S.C.A. 11042 , request the administrator of the United States environmental protection agency to provide specific chemical identities that are claimed or have been determined to be trade secret information or the explanations and supplemental information supporting trade secret protection claims regarding facilities located in this state that are subject to this chapter. The governor shall not make any trade secret or confidential information obtained under this division available to any member of the emergency planning commission created in section 3750.02 of the Revised Code or to any member of a local emergency planning committee of an emergency planning district established under section 3750.03 of the Revised Code who is not also an officer or employee of the state or a political subdivision. Any trade secret or confidential business information obtained under this division shall be protected from unauthorized disclosure in accordance with rules adopted under division (A)(1)(f) of section 3751.02 of the Revised Code.

(D)

(1) The owner or operator of a facility that is subject to section 3751.03 of the Revised Code shall provide the specific chemical identity of a toxic chemical, if the specific chemical identity is known, to any health professional who submits to the owner or operator a written request and statement of need for the specific chemical identity. The written statement of need shall be a statement of the health professional that the health professional has a reasonable basis to believe that all of the following conditions pertain to the request:

(a) The information is needed for purposes of diagnosis or treatment of an individual;

(b) The individual being diagnosed or treated has been exposed to the chemical concerned;

(c) Knowledge of the specific chemical identity of the chemical will assist in diagnosis and treatment.

An owner or operator to whom such a written request and statement of need is submitted shall provide the requested information to the health professional promptly after receiving the request and statement of need, subject to division (D)(4) of this section.

(2) The owner or operator of a facility that is subject to section 3751.03 of the Revised Code shall provide a copy of a toxic chemical release form that contains the specific chemical identity of a toxic chemical, if the specific chemical identity is known, to any treating physician or nurse who requests that information if the physician or nurse determines that all of the following conditions pertain to the request:

(a) A medical emergency exists;

(b) The specific chemical identity of the chemical concerned is necessary for or will assist in emergency or first aid diagnosis or treatment;

(c) The individual being diagnosed or treated has been exposed to the chemical concerned.

The owner or operator shall provide the requested information to the physician or nurse immediately upon receiving such a request. The owner or operator shall not require any such treating physician or nurse to provide a written confidentiality agreement or statement of need as a precondition for disclosure of a specific chemical identity under this division; however, the owner or operator may require the treating physician or nurse to provide a written confidentiality agreement under division (D)(4) of this section and a statement setting forth the conditions listed in divisions (D)(2)(a) to (c) of this section as soon after the disclosure is made as circumstances permit.

(3) The owner or operator of a facility that is subject to section 3751.03 of the Revised Code shall provide the specific chemical identity of a toxic chemical, if the specific chemical identity is known, to any health professional, including, without limitation, a physician, toxicologist, or epidemiologist, who is either employed by or under contract with a political subdivision and who submits to the owner or operator a written request for the information, a written statement of need for the information that meets the requirements of division (D)(3) of this section, and a written confidentiality agreement under division (D)(4) of this section. The owner or operator shall promptly after receipt of the written request, statement of need, and confidentiality agreement provide the requested information to the local health professional who requested it.

The written statement of need for a specific chemical identity required by division (D)(3) of this section shall describe with reasonable detail one or more of the following health needs for the information:

(a) To assess exposure of persons living in a local community to the hazards of the chemical concerned;

(b) To conduct or assess sampling to determine exposure levels of various population groups to the chemical concerned;

(c) To conduct periodic medical surveillance of population groups exposed to the chemical concerned;

(d) To provide medical treatment to individuals or population groups exposed to the chemical concerned;

(e) To conduct studies to determine the health effects of exposure to the chemical concerned;

(f) To conduct studies to aid in the identification of a chemical that may reasonably be anticipated to cause an observed health effect.

(4) Any person who obtains information under division (D)(1) or (3) of this section shall, as a precondition for receiving that information, enter into a written confidentiality agreement with the owner or operator of the facility from whom the information was requested that the person will not use the information for any purpose other than the health needs asserted in the statement of need provided thereunder, except as otherwise may be authorized by the terms of the agreement or by the person providing the information.

(E) An officer or employee of the environmental protection agency shall not request the owner or operator of a facility subject to this chapter to submit to the officer or employee a trade secret claim, toxic chemical release form required by section 3751.03 of the Revised Code, substantiation of a trade secret claim, or explanation or supporting information or copy thereof pertaining to a trade secret claim, that contains any information claimed or determined to be a trade secret pursuant to rules adopted under division (A)(2) of section 3751.02 of the Revised Code or identified as confidential business information by rules adopted under division (A)(1)(g) of that section. If any officer or employee of the agency knows or has reason to believe that a trade secret claim, toxic chemical release form, substantiation, or explanation or supporting information pertaining to a trade secret claim contains any such information, the officer or employee immediately shall return it to the owner or operator of the facility who submitted it without reading it and shall request the owner or operator to submit the appropriate report or substantiation that does not contain the information claimed or determined to be a trade secret or so identified as confidential business information.

(F) No officer or employee of the environmental protection agency, health professional, physician, nurse, or other person who receives information claimed or determined to be a trade secret pursuant to rules adopted under division (A)(2) of section 3751.02 of the Revised Code or identified as confidential business information by rules adopted under division (A)(1)(g) of section 3751.02 of the Revised Code shall release any information so classified or identified to any person not authorized to have that information under division (C) of this section or rules adopted under division (A)(1)(f) of section 3751.02 of the Revised Code. A violation of this division is not also a violation of section 2913.02 or 2913.04 of the Revised Code.

Effective Date: 07-01-1996

3751.05 Release forms filing fees - toxic chemical release reporting fund.

(A) The owner or operator of a facility required to annually file one or more toxic chemical release forms under section 3751.03 of the Revised Code shall submit with the release forms a filing fee of fifty dollars. In addition to the filing fee, the owner or operator shall submit an additional fee of fifteen dollars per release form filed but not exceeding a total additional fee of five hundred dollars.

(B) An owner or operator of a facility who fails to submit a toxic chemical release form within thirty days after the applicable filing date prescribed in that section shall submit with the form a late filing fee of fifteen per cent of the total fees due under division (A) of this section, whichever is more, in addition to the fees due under that division.

(C) The director of environmental protection may establish fees to be paid by persons, other than public officers or employees, obtaining copies of documents or information submitted to the director under this chapter and rules adopted under it. The fee shall be established at a level calculated to defray the costs of copying the documents or information. The director may charge the actual costs involved in accessing any computerized data base established by him under this chapter or by the administrator of the United States environmental protection agency under the "Emergency Planning and Community Right-To-Know Act of 1986," 100 Stat. 1729, 42 U.S.C. 11002 , needed to fulfill a request for information regarding releases of toxic chemicals for which reporting is required by this chapter and rules adopted under it.

(D) All moneys received by the director under this section and all civil penalties received under division (B) of section 3751.10 of the Revised Code shall be credited to the toxic chemical release reporting fund, hereby created in the state treasury. Moneys credited to the fund shall be expended by the director exclusively for the purposes of implementing, administering, and enforcing this chapter and the rules adopted and orders issued under it.

Effective Date: 12-14-1988

3751.06 Enforcement.

No political subdivision or local emergency planning committee of an emergency planning district established under section 3750.03 of the Revised Code shall enforce any ordinance, resolution, rule, or requirement for the reporting or providing of the names or amounts of toxic chemicals manufactured, processed, or otherwise used at facilities within the political subdivision or district; for the reporting or providing of information regarding locations where those chemicals are stored at those facilities; or for the reporting of any releases of those chemicals, unless both of the following conditions are met:

(A) The toxic chemical is also identified or listed as an extremely hazardous substance, hazardous chemical, or hazardous substance by rules adopted under division (B)(1)(a), (b), or (c) or (C)(5) of section 3750.02 of the Revised Code;

(B) Enforcement of the ordinance, resolution, rule, or requirement is authorized under division (B), (C), or (E) of section 3750.11 of the Revised Code.

Effective Date: 12-14-1988

3751.07 Prohibitions.

No person shall violate any section of this chapter or a rule adopted or order issued under it.

Effective Date: 07-01-1996

3751.08 Right of entry.

The director of environmental protection or his 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 or investigate, obtain samples, and examine and copy records to determine compliance with this chapter and rules adopted and orders issued under it. The director or his 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.

Effective Date: 12-14-1988

3751.09 Issuing abatement orders.

The director of environmental protection may issue orders requiring the owner or operator of a facility where toxic chemicals are manufactured, processed, or otherwise used to abate a violation of this chapter or a rule adopted or order issued under it. 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 any adjudication hearing in connection with any such order. Issuance of an order under this section is not a condition precedent to bringing any civil, criminal, or civil penalty action under this chapter.

Effective Date: 12-14-1988

3751.10 Prosecutions.

(A) The attorney general, the prosecuting attorney of the county, or the city director of law of the city where a violation has occurred or is occurring, upon the written request of the director of environmental protection, shall prosecute to termination or bring an action for injunction against any person who has violated or is violating any section of this chapter or any rule adopted or order issued under it. 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 any section of this chapter or a rule adopted or order issued under it. The court shall give precedence to such an action over all other cases.

Upon the certified written request of any person, the director shall conduct such investigations and make such inquiries as are necessary to secure compliance with this chapter or rules adopted or orders issued under it. The director may, upon request or upon his own initiative, investigate or make inquiries into any violation of this chapter or rules adopted or orders issued under it.

(B) Whoever violates division (E) of section 3751.03 , division (B)(1) or (2) of section 3751.04 of the Revised Code, or an order issued under this chapter, shall pay a civil penalty of not more than twenty-five thousand dollars for each day of violation. The attorney general, the prosecuting attorney of the county, or the city director of law of the city where a violation of this chapter or a rule adopted or order issued under it has occurred or is occurring, upon the written request of the director, shall bring an action for imposition of a civil penalty under this division against any person who has committed or is committing any such violation. All civil penalties received under this division shall be credited to the toxic chemical release reporting fund created in section 3751.05 of the Revised Code.

(C) Any action for injunction or civil penalties under division (A) or (B) of this section is a civil action governed by the Rules of Civil Procedure.

Effective Date: 07-01-1996

3751.11 Liability for disclosures.

A member of the emergency response commission, officer or employee of the environmental protection agency, member or employee of a local emergency planning committee, officer or employee of a fire department, health professional, physician, nurse, or other person who receives information classified as a trade secret pursuant to rules adopted under division (A)(2) of section 3751.02 of the Revised Code or identified as confidential business information by rules adopted under division (A)(1)(g) of section 3751.02 of the Revised Code and who violates division (F) of section 3751.04 of the Revised Code or otherwise discloses information classified as a trade secret or identified as confidential business information pursuant to those rules to a person not authorized to have that information under division (C) of section 3751.04 of the Revised Code or rules adopted under division (A)(1)(f) of section 3751.02 of the Revised Code, is liable in damages in a civil action to the owner of the trade secret information for any injury or loss to person or property sustained by him resulting from the violation or unauthorized disclosure of that information. Any owner of information so classified as a trade secret or identified as confidential business information who, as a result of a violation of division (F) of section 3751.04 of the Revised Code or by disclosure of trade secret or confidential business information to a person not authorized to have it pursuant to division (C) of section 3751.04 of the Revised Code or rules adopted under division (A)(1)(f) of section 3751.02 of the Revised Code, sustains any injury or loss to person or property may bring a civil action for damages and other appropriate relief against the person who violated that division or otherwise disclosed the trade secret or confidential business information to a person not so authorized to have it.

In such a civil action, if the plaintiff establishes by a preponderance of the evidence, and if the trier of fact finds, that the defendant violated that division or otherwise disclosed information classified as a trade secret or identified as confidential business information to a person not so authorized to have it, and that the plaintiff sustained injury or loss to person or property as a result of the violation or unauthorized disclosure of the information, the trier of fact may award compensatory damages and such other relief as the trier of fact finds appropriate.

In any civil action under this section the court may award costs and reasonable attorney's fees to the prevailing party.

Liability imposed under this section for a violation of division (F) of section 3751.04 of the Revised Code is in addition to other civil liability, if any, under the Revised Code or common law of this state and in addition to any criminal penalty that is imposed for the same violation under section 3751.99 of the Revised Code.

Effective Date: 12-14-1988

3751.99 Penalty.

Whoever purposely violates division (F) of section 3751.04 of the Revised Code shall be fined not more than twenty thousand dollars, imprisoned for not more than one year, or both. Each violation is a separate offense.

Effective Date: 07-01-1996