Bill Title: To establish requirements governing oceangoing vessels on the state waters of Lake Erie in order to control aquatic nuisance species.
Spectrum: Moderate Partisan Bill (Democrat 4-1)
Status: (Introduced - Dead) 2009-02-10 - To Environment & Natural Resources
[SB27 Detail]Download: Ohio-2009-SB27-Introduced.html
As Introduced
128th General Assembly | Regular Session | 2009-2010 |
| |
Cosponsors:
Senators Turner, Fedor, Sawyer, Wagoner
A BILL
| To enact sections 6111.60 to 6111.66 of the Revised | 1 |
|
Code to establish requirements governing | 2 |
|
oceangoing vessels on the state waters of Lake | 3 |
|
Erie in order to control aquatic nuisance species. | 4 |
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 6111.60, 6111.61, 6111.62, 6111.63, | 5 |
6111.64, 6111.65, and 6111.66 of the Revised Code be enacted to | 6 |
read as follows: | 7 |
Sec. 6111.60. As used in sections 6111.60 to 6111.66 of the | 8 |
Revised Code: | 9 |
(A) "Aquatic nuisance species" means a nonindigenous species | 10 |
that threatens the diversity or abundance of native species in or | 11 |
the ecological stability of infested waters or commercial, | 12 |
agricultural, aquacultural, or recreational activities that are | 13 |
dependent on such waters. | 14 |
(B) "Ballast tank" means a tank or hold on an oceangoing | 15 |
vessel that is used for carrying ballast water regardless of | 16 |
whether the tank or hold was designed for that purpose. | 17 |
(C) "Ballast water" means water and suspended matter that are | 18 |
taken on board an oceangoing vessel to control or maintain trim, | 19 |
draught, stability, or stresses of the vessel regardless of how | 20 |
the water and suspended matter are carried. | 21 |
(D) "Environmentally sound technology and methods" means the | 22 |
best available technology, methods, efforts, actions, or programs | 23 |
to prevent introductions or control infestations of aquatic | 24 |
nuisance species that minimize adverse impacts to the structure | 25 |
and function of an ecosystem and adverse effects on nontarget | 26 |
organisms and ecosystems and that emphasize integrated pest | 27 |
management techniques and nonchemical measures. | 28 |
(E) "Oceangoing vessel" means a vessel that operates outside | 29 |
the waters of Lake Michigan, Lake Superior, Lake Huron, and Lake | 30 |
Erie and their tributaries. | 31 |
(F) "Person" includes an individual, partnership, | 32 |
copartnership, firm, company, limited liability company, | 33 |
corporation, association, joint stock company, trust, estate, or | 34 |
other legal entity, or the legal representative or agent of such | 35 |
an entity, that operates oceangoing vessels on the state waters of | 36 |
Lake Erie or that owns such vessels. | 37 |
(G) "Rule" means a rule adopted under section 6111.62 of the | 38 |
Revised Code. | 39 |
(H) "Sediment" means matter that settles out of ballast water | 40 |
within the ballast tank of an oceangoing vessel. | 41 |
(I) "State waters of Lake Erie" means the waters under the | 42 |
jurisdiction of this state in Lake Erie and waters that discharge, | 43 |
flow, or otherwise are transferred into that portion of Lake Erie. | 44 |
(J) "Vector" means the pathway and mechanism of entry for | 45 |
aquatic nuisance species into the state waters of Lake Erie. | 46 |
Sec. 6111.61. (A)(1) Not later than twelve months after the | 47 |
effective date of this section, the director of environmental | 48 |
protection shall establish a program for the issuance of permits | 49 |
under this section. | 50 |
(2) On and after the effective date of rules adopted by the | 51 |
director, no person shall operate an oceangoing vessel that is | 52 |
capable of discharging ballast water on the state waters of Lake | 53 |
Erie without a permit issued by the director under this section. | 54 |
(B) The director or the director's authorized representative | 55 |
may
assist an applicant for a permit during the application | 56 |
process by
providing guidance and technical assistance. | 57 |
(C) An applicant for a permit shall submit an application to | 58 |
the director on a form that the director prescribes and provides, | 59 |
accompanied by a permit fee in an amount specified by rule. The | 60 |
applicant shall submit with the application a signed affidavit | 61 |
verifying that the applicant's oceangoing vessel is in compliance | 62 |
with the performance standards established in rules. | 63 |
(D) Upon receipt of a complete application, permit fee, and | 64 |
signed affidavit, the director shall issue or deny a permit. If | 65 |
the
director issues a permit, the permit shall include an | 66 |
identification
number that is unique to that permit and terms | 67 |
that are necessary
to ensure compliance with sections 6111.60 to | 68 |
6111.66 of the Revised Code and rules. The director shall
issue a | 69 |
permit for an oceangoing vessel only if the operator who
applies | 70 |
for the permit can demonstrate either that the oceangoing
vessel | 71 |
will not discharge ballast water or other waste or effluent
or, | 72 |
if the oceangoing vessel discharges ballast water or other
waste | 73 |
or effluent, that the operator of the oceangoing vessel will | 74 |
utilize environmentally sound technology and methods, as | 75 |
identified in rules, that can be used to prevent the discharge of | 76 |
aquatic nuisance species. In addition, the director shall deny a | 77 |
permit if the application contains misleading or false | 78 |
information. Additional grounds for denial of a permit shall be | 79 |
established in rules. | 80 |
(E) A permit is valid for one year and may be renewed. An | 81 |
application for renewal of a permit shall be submitted to the | 82 |
director at least one hundred eighty days prior to the expiration | 83 |
date of the permit and shall comply with the requirements | 84 |
governing applications for permits that are established in this | 85 |
section and in rules. | 86 |
(F) The director may modify, suspend, or revoke a permit in | 87 |
accordance with rules. | 88 |
(G) No person that is issued a permit under this section | 89 |
shall violate the terms of the permit, including, but not limited | 90 |
to, any requirement in the permit that the person utilize | 91 |
environmentally sound technology and methods to prevent the | 92 |
discharge of aquatic nuisance species. | 93 |
Sec. 6111.62. (A) Not later than twelve months after the | 94 |
effective date of this section, the director of environmental | 95 |
protection shall adopt rules in accordance with Chapter 119. of | 96 |
the
Revised Code that do all of the following: | 97 |
(1) Identify aquatic nuisance species for the purposes of | 98 |
sections 6111.60 to 6111.66 of the Revised Code; | 99 |
(2) Establish all of the following concerning permits that | 100 |
are issued under section 6111.61 of the Revised Code: | 101 |
(a) The amount of the fee for a permit; | 102 |
(b) Procedures for the issuance, denial, modification, | 103 |
renewal, suspension, and revocation of permits; | 104 |
(c) Requirements governing the modification of permits; | 105 |
(d) Grounds for the denial, suspension, or revocation of | 106 |
permits in addition to the grounds established in division (D) of | 107 |
section 6111.61 of the Revised Code. | 108 |
(3) Establish performance standards for ballast water | 109 |
discharge and the management of other vectors of aquatic nuisance | 110 |
species introduced from oceangoing vessels, including sea chests, | 111 |
anchor chains, hull fouling, and sediment in ballast tanks, for | 112 |
the purpose of eliminating the risk of introduction of plant, | 113 |
animal, and human pathogens into the state waters of Lake Erie. | 114 |
The standards shall identify environmentally sound technology and | 115 |
methods that shall be used to prevent the discharge of aquatic | 116 |
nuisance species. | 117 |
(4) Establish a system of inspections to be conducted by the | 118 |
environmental protection agency to ensure that oceangoing vessels | 119 |
comply with
the rules adopted under division (A)(3) of this | 120 |
section. The rules
shall include requirements for sampling of | 121 |
water or sediment,
whichever is applicable, in ballast tanks, sea | 122 |
chests, anchor
chains, hulls, and any other locations on an | 123 |
oceangoing vessel
that the director determines are necessary. The | 124 |
rules also shall
establish requirements governing the imposition | 125 |
of inspection fees
on oceangoing vessels that are subject to | 126 |
inspection. | 127 |
(5) Establish the amount of the civil penalty that may be | 128 |
assessed under section 6111.65 of the Revised Code. The amount of | 129 |
the penalty shall be not less than twenty-five thousand dollars | 130 |
for each violation. | 131 |
(6) Establish any other requirements and procedures that the | 132 |
director determines are necessary to administer and enforce | 133 |
sections 6111.60 to 6111.66 of the Revised Code. | 134 |
(B) In adopting rules under this section, the director shall | 135 |
consult with the other states and Canadian provinces that border | 136 |
the great lakes in an effort to ensure uniform regulatory policies | 137 |
among the states and provinces. | 138 |
(C) Beginning January 1, 2010, the director, at least every | 139 |
three years, shall review the rules adopted under division (A)(3) | 140 |
of this section to determine whether the performance standards | 141 |
established in those rules have prevented the introduction into | 142 |
and the reduction of the spread of aquatic nuisance species within | 143 |
the state waters of Lake Erie. If the director determines that the | 144 |
performance standards have not prevented the introduction into and | 145 |
the reduction of the spread of aquatic nuisance species within the | 146 |
state waters of Lake Erie, the director may adopt revised rules | 147 |
that
establish alternative performance standards. | 148 |
(D) No person shall violate a rule adopted under this | 149 |
section. | 150 |
Sec. 6111.63. In order to address discharges of aquatic | 151 |
nuisance species from oceangoing vessels that damage water | 152 |
quality, aquatic habitat, or fish or wildlife, the director of | 153 |
environmental protection shall facilitate the formation of a great | 154 |
lakes aquatic nuisance species coalition. The great lakes aquatic | 155 |
nuisance species coalition shall be formed through an agreement | 156 |
entered into with other states in the great lakes basin and with | 157 |
Canadian great lakes provinces. The purpose of the coalition shall | 158 |
be to recommend and implement on a basin-wide basis water | 159 |
pollution control laws that prohibit the discharge of aquatic | 160 |
nuisance species into the great lakes from oceangoing vessels. The | 161 |
director shall attempt to enter into the agreement so that the | 162 |
agreement is effective not later than twelve months after the | 163 |
effective date of this section. The director shall consult with | 164 |
other
appropriate state and federal agencies prior to entering | 165 |
into the
agreement, including, but not limited to, the department | 166 |
of natural resources and the United States environmental | 167 |
protection
agency. | 168 |
Sec. 6111.64. The director of environmental protection shall | 169 |
cooperate to the fullest extent practicable with other great lakes | 170 |
basin states, the Canadian great lakes provinces, the great lakes | 171 |
panel on aquatic nuisance species, the great lakes fishery | 172 |
commission, the international joint commission, and the great | 173 |
lakes commission to ensure development of standards for the | 174 |
control of aquatic nuisance species that are broadly protective of | 175 |
the waters of the state and other natural resources. | 176 |
Sec. 6111.65. (A) The director of environmental protection | 177 |
may
request the attorney general, in writing, to bring an action | 178 |
for a
civil penalty in a court of competent jurisdiction against | 179 |
any
person who has violated or is violating sections 6111.60 to | 180 |
6111.66 of the Revised Code or a rule
adopted or a term of a | 181 |
permit issued under them. The court may
impose on the person a | 182 |
civil penalty in the amount established in
rules. | 183 |
(B)(1) A person may bring a civil action for a violation of | 184 |
sections 6111.60 to 6111.66 of the Revised Code or a rule adopted | 185 |
or permit issued under them on behalf
of the person or on behalf | 186 |
of the state. A person may not bring an
action under this | 187 |
division against the state or a political
subdivision, a | 188 |
department, board, office, commission, agency,
institution, or | 189 |
other instrumentality of the state or a political
subdivision, or | 190 |
an officer or employee of the state or a political
subdivision. | 191 |
(2) A copy of the complaint and written disclosure of | 192 |
substantially all material evidence and information that the | 193 |
person possesses shall be served on the attorney general pursuant | 194 |
to Civil Rule 4.2(J). The complaint shall be filed in camera, | 195 |
shall remain under seal for at least sixty days, and shall not be | 196 |
served on the defendant until the court so orders. The state may | 197 |
elect to intervene and proceed with the action within sixty days | 198 |
after it receives both the complaint and the material evidence and | 199 |
information. | 200 |
(3) The state, for good cause shown, may file motions with | 201 |
the court requesting extensions of the time during which the | 202 |
complaint remains under seal. Such a motion may be supported by | 203 |
affidavits or other submissions in camera. The defendant shall not | 204 |
be required to respond to a complaint filed under this division | 205 |
until twenty-eight days after the complaint is unsealed and served | 206 |
on the defendant pursuant to Civil Rule 4. | 207 |
(4) Before the expiration of the sixty-day period established | 208 |
in division (B)(2) of this section or any extensions obtained | 209 |
under division (B)(3) of this section, the state shall either | 210 |
proceed with the action or notify the court that it declines to | 211 |
proceed with the action. If the state proceeds with the action, | 212 |
the state shall conduct the action. If the state declines to | 213 |
proceed with the action, the person bringing the action has the | 214 |
right to conduct the action. | 215 |
(5) When a person brings an action under division (B)(1) of | 216 |
this section, no person other than the state may intervene or | 217 |
bring a related action based on the facts underlying that pending | 218 |
action. | 219 |
(C)(1) If the state proceeds with an action under division | 220 |
(B) of this section, it has the primary responsibility for | 221 |
prosecuting the action and is not bound by an action of the person | 222 |
bringing the action. The person bringing the action has the right | 223 |
to continue as a party to the action, subject to the limitations | 224 |
established in division (C)(2) of this section. | 225 |
(2)(a) The state may dismiss an action brought under division | 226 |
(B) of this section notwithstanding the objections of the person | 227 |
initiating the action if the person has been notified by the state | 228 |
of the filing of the motion to dismiss and the court has provided | 229 |
the person with an opportunity for a hearing on the motion. | 230 |
(b) The state may settle an action brought under division (B) | 231 |
of this section with the defendant notwithstanding the objections | 232 |
of the person initiating the action if the court determines, after | 233 |
a hearing, that the proposed settlement is fair, adequate, and | 234 |
reasonable under all the circumstances. Upon a showing of good | 235 |
cause, the court may hold the hearing in camera. | 236 |
(c) Upon a showing by the state that unrestricted | 237 |
participation during the course of the litigation by the person | 238 |
initiating the action would interfere with or unduly delay the | 239 |
state's prosecution of the case or would be repetitious, | 240 |
irrelevant, or for purposes of harassment, the court, in its | 241 |
discretion, may impose limitations on the person's participation, | 242 |
including, but not limited to, all of the following: | 243 |
(i) Limiting the number of witnesses that the person may | 244 |
call; | 245 |
(ii) Limiting the length of the testimony of witnesses; | 246 |
(iii) Limiting the person's cross-examination of witnesses; | 247 |
(iv) Otherwise limiting the participation by the person in | 248 |
the litigation. | 249 |
(d) Upon a showing by the defendant that unrestricted | 250 |
participation during the course of the litigation by the person | 251 |
initiating an action under division (B) of this section would be | 252 |
for purposes of harassment or would cause the defendant undue | 253 |
burden or unnecessary expense, the court may limit participation | 254 |
by the person initiating the action in the litigation. | 255 |
(3) If the state declines to proceed with an action brought | 256 |
by a person under division (B) of this section and the person | 257 |
conducts the action, the state may request to be served with | 258 |
copies of all pleadings filed in the action and to be supplied | 259 |
with copies of all deposition transcripts at the state's expense. | 260 |
When the person proceeds with the action, the court, without | 261 |
limiting the status and rights of the person initiating the | 262 |
action, may permit the state to intervene at a later date upon a | 263 |
showing of good cause. | 264 |
(4) Whether or not the state proceeds with the action, upon a | 265 |
showing by the state that certain discovery by the person | 266 |
initiating the action would interfere with the state's | 267 |
investigation or prosecution of a civil matter arising out of the | 268 |
same facts, the court may stay that discovery for a period of not | 269 |
more than sixty days. The showing shall be conducted in camera. | 270 |
The court may extend the sixty-day period upon a further showing | 271 |
in camera that the state has pursued the criminal or civil | 272 |
investigation or proceedings with reasonable diligence and any | 273 |
proposed discovery in the civil action will interfere with the | 274 |
ongoing criminal or civil investigation or proceedings. | 275 |
(D)(1) Except as otherwise provided in this division, if the | 276 |
state proceeds with an action brought by a person under division | 277 |
(B) of this section, the person shall receive at least fifteen per | 278 |
cent, but not more than twenty-five per cent of the proceeds of | 279 |
the action or settlement of the claim, depending on the extent to | 280 |
which the person substantially contributed to the prosecution of | 281 |
the action. If the action is one that the court finds to be based | 282 |
primarily on disclosures of specific information, other than | 283 |
information provided by the person bringing the action, the court | 284 |
may award the sums that it considers appropriate, but in no case | 285 |
more than ten per cent of the proceeds, taking into account the | 286 |
significance of the information and the role of the person | 287 |
bringing the action in advancing the case to litigation. Any | 288 |
payment to a person under this division shall be made from the | 289 |
proceeds. The person shall also receive an amount for reasonable | 290 |
expenses that the court finds to have been necessarily incurred | 291 |
plus reasonable attorney's fees and costs. All expenses, fees, and | 292 |
costs shall be awarded against the defendant. | 293 |
(2) If the state does not proceed with an action brought by a | 294 |
person under division (B) of this section, the person bringing the | 295 |
action or settling the claim shall receive an amount that the | 296 |
court decides is reasonable for collecting the civil penalty and | 297 |
damages. The amount shall be not less than twenty-five per cent | 298 |
and not more than thirty per cent of the proceeds of the action or | 299 |
settlement and shall be paid out of the proceeds. The person also | 300 |
shall receive an amount for reasonable expenses that the court | 301 |
finds to have been necessarily incurred plus reasonable attorney's | 302 |
fees and costs. All expenses, fees, and costs shall be awarded | 303 |
against the defendant. | 304 |
(3) If the state does not proceed with the action and the | 305 |
person bringing the action conducts the action, the court may | 306 |
award to the defendant its reasonable attorney's fees and expenses | 307 |
if the defendant prevails in the action and the court finds that | 308 |
the claim of the person bringing the action was clearly frivolous, | 309 |
clearly vexatious, or brought primarily for purposes of | 310 |
harassment. | 311 |
(E)(1) A person may not bring an action under division (B) of | 312 |
this section that is based on allegations or transactions that are | 313 |
the subject of a civil action proceeding in which the state is | 314 |
already a party. | 315 |
(2) A person may not bring an action under this section that | 316 |
is based on the public disclosure of allegations or transactions | 317 |
in a criminal, civil, legislative, or administrative hearing, | 318 |
report, audit, or investigation, or from the news media, unless | 319 |
the person bringing the action has direct and independent | 320 |
knowledge of the information on which the allegations are based | 321 |
and has voluntarily provided the information to the state before | 322 |
filing an action based on the information under this section. This | 323 |
division does not apply to the bringing of an action by the state. | 324 |
(F) The state is not liable for expenses that a person incurs | 325 |
in bringing an action under this section. | 326 |
Sec. 6111.66. (A) All money collected by the director of | 327 |
environmental protection under sections 6111.60 to 6111.66 of the | 328 |
Revised Code and all money from actions
brought under section | 329 |
6111.65 of the Revised Code shall be
deposited in the state | 330 |
treasury to the credit of the aquatic
nuisance species prevention | 331 |
fund, which is hereby created in the
state treasury. All | 332 |
investment earnings of the fund shall be
credited to the fund. | 333 |
(B) Money in the fund shall be used by the director for all | 334 |
of
the following: | 335 |
(1) Prevention of the introduction of aquatic nuisance | 336 |
species into the state waters of Lake Erie; | 337 |
(2) Control of the spread of aquatic nuisance species that | 338 |
exist in the state waters of Lake Erie prior to the effective date | 339 |
of this section; | 340 |
(3) Reclamation of aquatic resources in the state that have | 341 |
been injured as a result of aquatic nuisance species; | 342 |
(4) The administration of sections 6111.60 to 6111.66 of the | 343 |
Revised Code and rules adopted
under them. | 344 |