Chapter 3753: RISK MANAGEMENT PROGRAM

3753.01 Risk management program definitions.

As used in this chapter:

(A) "Accidental release" means an unanticipated emission of a regulated substance into the ambient air from a stationary source.

(B) "Clean Air Act Amendments" means the "Clean Air Act Amendments of 1990," 91 Stat. 685, 42 U.S.C. 7401 et al., as amended, and regulations adopted under it.

(C) "Covered process" means a process that has a regulated substance present in an amount that is in excess of the threshold quantity established in rules adopted under section 3753.02 of the Revised Code.

(D) "Environmental receptor" means natural areas such as national or state parks, forests, or natural monuments; federally designated or state-designated wildlife sanctuaries, preserves, refuges, or areas; and federal wilderness areas, that could be exposed at any time to toxic concentrations, radiant heat, or overpressure greater than or equal to the endpoints prescribed in rules adopted under section 3753.02 of the Revised Code and that can be identified on United States geological survey maps.

(E) "Owner or operator" means any person who owns, leases, operates, controls, or supervises a stationary source.

(F) "Process" means any activity involving a regulated substance, including any use, storage, manufacturing, handling, or on-site movement of the substance or any combination of these activities. Any group of vessels that are interconnected, or separate vessels that are located in such a manner that a regulated substance potentially could be involved in a release, shall be considered a single process.

(G) "Public" means any person except employees or contractors at a stationary source.

(H) "Public receptor" means off-site residences, institutions such as schools or hospitals, industrial, commercial, and office buildings, parks, or recreational areas inhabited or occupied by the public at any time where the public could be exposed to toxic concentrations, radiant heat, or overpressure as a result of an accidental release.

(I) "Regulated substance" means a toxic or flammable substance listed in rules adopted under section 3753.02 of the Revised Code.

(J) "Risk management plan" means a risk management plan required under section 3753.03 of the Revised Code.

(K) "Stationary source" means any buildings, structures, equipment, installations, or substance-emitting stationary activities that belong to the same industrial group as described in the standard industrial classification manual, 1987, that are located on one or more contiguous properties under the control of the same person or persons, and from which an accidental release may occur. Properties shall not be considered contiguous solely because of a railroad or pipeline right-of-way.

(1) "Stationary source" includes transportation containers that are used for storage not incident to transportation and transportation containers that are connected to equipment at a stationary source for loading and unloading. "Stationary source" does not include the transportation, including storage incident to transportation, of any regulated substance under this chapter. "Stationary source" does not include naturally occurring hydrocarbon reservoirs.

(2) "Transportation" includes, but is not limited to, transportation that is subject to oversight or regulation under 49 C.F.R. part 192, 193, or 195, or to a state natural gas or hazardous liquid program for which the state has in effect a certification to the United States department of transportation under 49 U.S.C. 60105 .

(L) "Threshold quantity" means the quantity established for a regulated substance in rules adopted under section 3753.02 of the Revised Code that, if exceeded, subjects an owner or operator to compliance with this chapter and rules adopted under it.

(M) "Vessel" means any reactor, tank, drum, barrel, cylinder, vat, kettle, boiler, pipe, hose, or other container.

Effective Date: 09-30-1998

3753.02 Rules.

For the purpose of implementing and administering this chapter, the director of environmental protection may adopt, amend, and rescind rules in accordance with Chapter 119. of the Revised Code. The rules shall be consistent with, equivalent in scope, content, and coverage to, and no more stringent than the requirements of section 112(r) of the Clean Air Act Amendments and any regulations adopted pursuant to that section. Rules adopted under this section shall prescribe notice requirements by which the public is informed about and afforded the opportunity to comment on risk management plans submitted in accordance with this chapter.

Effective Date: 09-30-1998

3753.03 Owner or operator to submit risk management plan.

(A) Effective upon the date that the United States environmental protection agency delegates the program created under section 112(r) of the Clean Air Act Amendments to the environmental protection agency of this state, an owner or operator of a stationary source that has a covered process shall develop and submit a risk management plan no later than the latest of the following:

(1) Not later than ten days after the notice of delegation of the program to the state appears in the federal register, or ten days after the effective date of this amendment, whichever occurs later;

(2) The date on which a regulated substance is first present above a threshold quantity in a process at the stationary source;

(3) Three years after the date on which a regulated substance at the stationary source is first listed under 40 C.F.R. 68.130 .

(B) An owner or operator who is subject to division (A) of this section shall submit a single risk management plan that reflects all covered processes at the stationary source by the applicable deadline established under that division and that is in the form required by the director of environmental protection in rules adopted under section 3753.02 of the Revised Code. The risk management plan shall include all of the following, as applicable:

(1) A registration that reflects all covered processes at the stationary source pursuant to 40 C.F.R. 68.160 ;

(2) The applicable information required to be submitted with the plan under section 3753.04 of the Revised Code;

(3) A summary of the actions taken to comply with all of the other applicable requirements established under section 3753.04 of the Revised Code.

(C) An owner or operator who has submitted a risk management plan as required by division (A) of this section or submitted an update to a risk management plan under division (C) of this section shall revise, update, and submit the risk management plan in accordance with whichever of the following is applicable:

(1) Not later than five years after the initial submission of the risk management plan under division (A) of this section;

(2) Not later than five years after the most recent update of the risk management plan submitted under division (C) of this section;

(3) As otherwise provided in rules adopted by the director under section 3753.02 of the Revised Code.

(D) No owner or operator who is required to submit, revise, or update a risk management plan shall fail to do so within the prescribed time.

(E) An owner or operator who is required to submit a risk management plan and who knowingly makes a false statement in the plan, on a record upon which information in the plan is based, or on or pertaining to any other information or records required to be maintained under this chapter or rules adopted under it is guilty of falsification under section 2921.13 of the Revised Code.

Effective Date: 06-30-1999

3753.04 Owner or operator to comply with program 1, program 2, or program 3 requirements or with combination.

(A) In addition to complying with section 3753.03 of the Revised Code, the owner or operator of a stationary source at which one or more covered processes are present, as part of the owner or operator's risk management program, shall comply with program 1, program 2, or program 3 requirements established under this section or with a combination of those requirements. An owner or operator shall determine which of those requirements apply to the covered processes that are present at the stationary source as provided in divisions (B) to (D) of this section. An owner or operator shall comply with all levels of program requirements that apply to the covered processes at the owner or operator's stationary source.

(B) The owner or operator of a stationary source at which a covered process is present is subject to program 1 requirements established under division (E) of this section if the covered process meets all of the following conditions:

(1) For the five years prior to the submission of a risk management plan, the process has not had an accidental release of a regulated substance where exposure to the substance, its reaction products, overpressure generated by an explosion involving the substance, or radiant heat generated by a fire involving the substance led to any of the following occurrences off-site:

(a) Death of any person;

(b) Injury to any person;

(c) Response or restoration activities for an environmental receptor.

(2) The distance to a toxic or flammable endpoint for a worst case release assessment conducted pursuant to a hazard assessment as specified in rules adopted under section 3753.02 of the Revised Code is less than the distance to any public receptor;

(3) Emergency response procedures have been coordinated between the stationary source and local emergency planning and response organizations.

(C) The owner or operator of a stationary source at which a covered process is present is subject to program 2 requirements established under division (F) of this section if the covered process does not meet the conditions established under division (B) or (D) of this section.

(D) The owner or operator of a stationary source at which a covered process is present is subject to program 3 requirements established under division (G) of this section if the covered process does not meet the conditions established under division (B) of this section and either of the following conditions is met:

(1) The process is in standard industrial classification code 2611, 2812, 2819, 2821, 2865, 2869, 2873, 2879, or 2911;

(2) The process is subject to the United States occupational safety and health administration safety management standard under 29 C.F.R. 1910.119 .

(E) The owner or operator of a stationary source at which one or more covered processes are present that meet the conditions established under division (B) of this section shall comply with all of the following program 1 requirements:

(1) Submit with the risk management plan an analysis of the worst case release scenario for each covered process and documentation that the nearest public receptor is beyond the distance to a toxic or flammable endpoint;

(2) Submit with the risk management plan a five-year accident history for the process;

(3) Ensure that response actions have been coordinated with local emergency planning and response agencies;

(4) Certify in the risk management plan that "Based upon criteria in rules adopted under section 3753.02 of the Revised Code, the distance to the specified endpoint for the worst case release scenario for the following process(es) is less than the distance to the nearest public receptor: (list processes). Within the past five years, the process(es) has (have) had no accidental release that caused off-site impacts as described in rules adopted under section 3753.02 of the Revised Code. No additional measures are necessary to prevent off-site impacts from accidental releases. In the event of fire, explosion, or a release of a regulated substance from the process(es), entry within the distance to the specified endpoints may pose a danger to public emergency responders. Therefore, public emergency responders should not enter this area except as arranged with the emergency contact indicated in the risk management plan. The undersigned certifies that, to the best of my knowledge, the information submitted is true, accurate, and complete. (signature, title, date signed)"

(F) The owner or operator of a stationary source at which one or more covered processes are present that meet the conditions established under division (C) of this section shall comply with all of the following program 2 requirements:

(1) Develop and implement a management system in accordance with rules adopted under section 3753.02 of the Revised Code;

(2) Conduct a hazard assessment in accordance with rules adopted under section 3753.02 of the Revised Code;

(3) Implement program 2 prevention requirements or implement program 3 prevention requirements in accordance with rules adopted under section 3753.02 of the Revised Code;

(4) Submit as part of the risk management plan information on prevention program elements for covered processes that are subject to program 2 requirements;

(5) Develop and implement an emergency response program in accordance with rules adopted under section 3753.02 of the Revised Code.

(G) The owner or operator of a stationary source at which one or more covered processes are present that meet the conditions established under division (D) of this section shall comply with all of the following program 3 requirements:

(1) Develop and implement a management system in accordance with rules adopted under section 3753.02 of the Revised Code;

(2) Conduct a hazard assessment in accordance with rules adopted under section 3753.02 of the Revised Code;

(3) Implement program 3 prevention requirements in accordance with rules adopted under section 3753.02 of the Revised Code;

(4) Submit as part of the risk management plan information on prevention program elements for covered processes that are subject to program 3 requirements;

(5) Develop and implement an emergency response program in accordance with rules adopted under section 3753.02 of the Revised Code.

(H) If at any time a covered process at a stationary source no longer meets the conditions established under this section for its program level, the owner or operator shall comply with the requirements of the new program level that applies to the covered process and shall update the risk management plan and information submitted with it not later than six months after the change in compliance with this chapter and rules adopted under it.

Effective Date: 09-30-1998

3753.05 Risk management plan reporting fund.

(A) Except as provided in division (G) of this section, an owner or operator who is required to submit a risk management plan under this chapter shall pay annually to the environmental protection agency a fee of fifty dollars together with any of the following applicable fees:

(1) A fee of sixty-five dollars if a covered process in the stationary source includes propane and propane is the only regulated substance at the stationary source over the threshold quantity;

(2) A fee of sixty-five dollars if a covered process in the stationary source includes anhydrous ammonia that is sold for use as an agricultural nutrient and is on-site over the threshold quantity;

(3) A fee of two hundred dollars for each regulated substance over the threshold quantity. Propane shall be considered a regulated substance subject to the fee levied under division (A)(3) of this section only if it is not the only regulated substance over the threshold quantity. Anhydrous ammonia shall be considered a regulated substance subject to the fee levied under division (A)(3) of this section only if it is not sold for use as an agricultural nutrient.

(B) In accordance with rules adopted under section 3753.02 of the Revised Code, the fees assessed under division (A) of this section shall be collected for the year 1999 no later than ten days after the notice of delegation of the risk management program to the state appears in the federal register, or ten days after the effective date of this amendment, whichever occurs later. Thereafter, the fees shall be collected no later than the first day of September of each year. The fees assessed under division (A) of this section for a stationary source shall be based upon the regulated substances present over the threshold quantity identified in the risk management plan on file for calendar year 1999 as of the twenty-first day of June and for each subsequent calendar year as of the first day of September.

(C) An owner or operator who is required to submit a risk management plan under this chapter and who fails to submit such a plan within thirty days after the applicable filing date prescribed in section 3753.03 of the Revised Code shall submit with the risk management plan a late filing fee of three per cent of the total fees due under division (A) of this section.

(D) The director of environmental protection may establish fees to be paid by persons, other than public officers or employees, to cover the costs of obtaining copies of documents or information submitted to the director under this chapter and rules adopted under it. The director shall not charge more than the actual cost of making and delivering such copies or of accessing any computerized data base established or used for the purposes of assisting in the administration of this chapter.

(E) All moneys received by the agency under divisions (A), (C), and (D) of this section shall be transmitted to the treasurer of state to be credited to the risk management plan reporting fund, which is hereby created in the state treasury. The fund shall be administered by the director and used exclusively for the administration and enforcement of this chapter and rules adopted under it.

(F) Beginning in fiscal year 2001, and every two years thereafter, the director shall review the total amount of moneys in the risk management plan reporting fund to determine if that amount exceeds seven hundred fifty thousand dollars in either of the two preceding fiscal years. If the total amount of moneys in the fund exceeded seven hundred fifty thousand dollars in either fiscal year, the director, after review of the fee structure and consultation with affected persons, shall issue an order reducing the amount of the fees levied under division (A) of this section so that the estimated amount of moneys resulting from the fees will not exceed seven hundred fifty thousand dollars in any fiscal year.

If, upon review of the fees under this division and after the fees have been reduced, the director determines that the total amount of moneys collected and accumulated is less than seven hundred fifty thousand dollars, the director, after review of the fee structure and consultation with affected persons, may issue an order increasing the amount of the fees levied under division (A) of this section so that the estimated amount of moneys resulting from the fees will be approximately seven hundred fifty thousand dollars. Fees shall never be increased to an amount exceeding the amount specified in division (A) of this section.

Notwithstanding section 119.06 of the Revised Code, the director may issue an order under this division without the necessity to hold an adjudicatory hearing in connection with the order. The issuance of an order under this division is not an act or action for purposes of section 3745.04 of the Revised Code.

(G) This section does not apply to the owner or operator of a business that employs one hundred or fewer individuals and is a small business concern as defined in the "Small Business Act," 72 Stat. 384 (1958), 15 U.S.C.A. 632 , as amended.

Effective Date: 06-30-1999

3753.06 Prohibition.

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

Effective Date: 09-30-1998

3753.07 Right of entry.

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

Effective Date: 09-30-1998

3753.08 Order to abate violation.

The director of environmental protection may issue orders requiring an owner or operator who is subject to this chapter to abate a violation of section 3753.06 of the Revised Code. 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 an adjudication hearing. Issuance of an order under this section is not a condition precedent to bringing any civil or criminal action under this chapter.

Effective Date: 09-30-1998

3753.09 Prosecutions - injunctive relief - civil penalties - investigations.

(A) The attorney general or the prosecuting attorney of the county or director of law of the city where a violation has occurred or is occurring, upon written request of the director of environmental protection, shall prosecute to termination any person who has violated division (D) of section 3753.03 of the Revised Code or shall bring an action for injunction against any person who has violated or is violating section 3753.06 of the Revised Code. 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 section 3753.06 of the Revised Code. The court shall give precedence to such an action over all other cases.

(B) Whoever violates section 3753.06 of the Revised Code shall pay a civil penalty of not more than twenty-five thousand dollars for each day of each violation. The attorney general or the prosecuting attorney of the county or director of law of the city where a violation of that section has occurred or is occurring, upon written request of the director, shall bring an action for the imposition of a civil penalty under this division against any person who has committed or is committing any such violation. Moneys resulting from civil penalties imposed under this division shall be credited to the risk management plan reporting fund created in section 3753.05 of the Revised Code.

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

Effective Date: 09-30-1998

3753.10 State, officers or employees - immunity.

(A) As used in this section:

(1) "Harm" means injury to, death of, or loss to person or property.

(2) "Tort action" means a civil action for damages for harm, but does not include a civil action for damages for a breach of contract or other agreement between persons or for a breach of a warranty that exists pursuant to the Revised Code or the common law of this state.

(B) The state, and any officer or employee of the state as defined in section 109.36 of the Revised Code, is not liable in a tort action when the state inspects, investigates, reviews, or accepts a risk management plan from an owner or operator who is subject to this chapter unless an action or omission of the state, or of an officer or employee of the state, constitutes willful or wanton misconduct or intentionally tortious conduct. Any action brought against the state under this division shall be brought in the court of claims.

(C)

(1) This section does not create, and shall not be construed as creating, a new cause of action against or substantive legal right against the state or an officer or employee of the state.

(2) This section does not affect, and shall not be construed as affecting, any immunities from civil liability or defenses established by the Revised Code, the United States Constitution, or the Ohio Constitution or available at common law to which this state, or an officer or employee of the state, may be entitled under circumstances not covered by this section.

(3) Section 9.86 of the Revised Code does not apply to an officer or employee of the state if the officer or employee is performing work in connection with inspecting, investigating, reviewing, or accepting a risk management plan from an owner or operator who is subject to this chapter at the time that the officer or employee allegedly caused the harm or caused or contributed to the presence or release of toxic or flammable substances for which damages are sought in a tort action. In that case, the immunities conferred by division (B) of this section apply to that individual.

Effective Date: 09-30-1998

3753.99 Penalty.

Whoever purposely violates division (D) of section 3753.03 of the Revised Code shall be fined not more than twenty thousand dollars and imprisoned for not more than one year, or both. Each day of violation is a separate offense.

Effective Date: 09-30-1998