S 742 Session 109 (1991-1992)
S 0742 General Bill, By Leventis, Giese, Land, Passailaigue and M.T. Rose
A Bill to amend the Code of Laws of South Carolina, 1976, by adding Section
44-1-115 so as to require the Department of Health and Environmental Control
to minimize and prevent damage to the environment in its regulatory functions
and prohibit the Department from being less protective of the environment than
is required by federal law and to amend Title 44, relating to health, by
adding Chapter 109, so as to enact the Toxic Use Reduction Act.
03/06/91 Senate Introduced and read first time SJ-8
03/06/91 Senate Referred to Committee on Medical Affairs SJ-8
A BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976,
BY ADDING SECTION 44-1-115 SO AS TO REQUIRE THE
DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL
TO MINIMIZE AND PREVENT DAMAGE TO THE
ENVIRONMENT IN ITS REGULATORY FUNCTIONS AND
PROHIBIT THE DEPARTMENT FROM BEING LESS PROTECTIVE
OF THE ENVIRONMENT THAN IS REQUIRED BY FEDERAL
LAW AND TO AMEND TITLE 44, RELATING TO HEALTH, BY
ADDING CHAPTER 109, SO AS TO ENACT THE TOXIC USE
REDUCTION ACT.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. (A) The General Assembly finds that this State has
suffered environmental and public and occupational health problems
caused by releases of toxic and hazardous substances.
(B) The General Assembly further finds that an effective way to
promote industrial hygiene, worker safety, and protection of the
environment and public health in this State is through reduction in the
use of toxic and hazardous substances. To this end, the policy goals of
this act are:
(1) to establish for South Carolina a statewide goal of reducing
toxic waste generated by fifty percent by the year 1999 using toxic use
reduction as the means of meeting this goal;
(2) to establish toxic use reduction as the preferred means for
achieving compliance with any federal or state law or regulation
pertaining to toxic production and use, hazardous waste, industrial
hygiene, worker safety, public exposure to toxic, or releases of toxic into
the environment and for minimizing the risks associated with the use of
toxic or hazardous substances and the production of toxic or hazardous
substances or hazardous wastes;
(3) to sustain, safeguard, and promote the competitive
advantage of businesses, large and small, while advancing innovation in
toxic use reduction and management;
(4) to promote reductions in the production and use of toxic
and hazardous substances within this State, both through the programs
established in this act and through existing toxic-related state programs;
(5) to enhance and strengthen the enforcement of existing
environmental laws and regulations; and (6) to promote
coordination and cooperation between all state agencies administering
toxic-related programs.
SECTION 2. Chapter 1, Title 44 of the 1976 Code is amended by
adding:
"Section 44-1-115. In regulating or approving any
pollution prevention, control, or abatement plan, strategy, or technology,
through any permit, license regulation, guideline, plan approval, or other
departmental action affecting or prohibiting the emission, discharge,
disposal, release, or threat of release of any hazardous substance to the
environment or in establishing standards for the emission, discharge,
disposal, release, or threat of release, pursuant to any statute
administered by the department, the department may consider the
potential effects of such plans, strategies, and technologies on public
health and safety and the environment that may arise through any
environmental medium or route of exposure that is regulated by the
department pursuant to any statute; and the department shall act to
minimize and prevent damage or threat of damage to the environment.
In no event may the department authorize implementation of any plan,
strategy, or technology less protective of the environment than required
by any applicable federal statute, regulation, permit, license, or plan
approval."
SECTION 3. Title 44 of the 1976 Code is amended by adding:
"CHAPTER 109
Toxic Use Reduction Act
Section 44-109-10. This chapter may be cited as the "Toxic
Use Reduction Act".
Section 44-109-20. As used in this chapter:
( 1) `Agency' means state agency.
( 2) `Byproduct', means all nonproduct outputs of toxic or
hazardous substances generated by a production unit, prior to handling,
transfer, treatment, or release.
( 3) `CERCLA', means the Comprehensive Environment Response
and Compensation Liability Act, 42 U.S.C. Section 9601 et.seq. (Public
Law 92-500).
( 4) `Commissioner' means the commissioner of the Department
of Health and Environmental Control or his designee.
( 5) `Council', the administrative council on toxic use reduction as
established by this chapter.
( 6) `Department', means the Department of Health and
Environmental Control.
( 7) `Emission', means a release of a toxic or hazardous substance
to the environment or a transfer of a toxic or hazardous substance in
waste to an off-site location.
( 8) `EPCRA', means the Emergency Planning and Community
Right-to-Know Act, 42 U.S.C. Section 11001 et seq. (Public Law
99-499).
( 9) `Facility' means all buildings, equipment, structures, and other
stationary items which are located on a single site or on contiguous or
adjacent sites and which 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.
(10) `Intermediate product' means:
(a) in chemical manufacturing, any chemical substance that is
consumed, in whole or in part, in chemical reactions used for the
intentional manufacture of another chemical substance or mixture, or
that is intentionally present for the purpose of altering the rate of
chemical reactions, other than a non-isolated intermediate as defined in
this chapter;
(b) in any other setting, any manufactured substance,
compound, or product that is consumed, in whole or in part, in a
chemical or physical process for the intentional manufacture of another
product, becomes a component part of another product, or that is
intentionally present for the purpose of aiding the manufacture of
another product, other than a non-isolated intermediate as defined in this
chapter.
(11) `Large quantity toxic user' means any toxic user who
manufacturers, processes, or otherwise uses any toxic or hazardous
substance in an amount the same as or greater than the applicable
threshold amount in a calendar year at a facility.
(12) `Manufacture' means to produce, prepare, import, or
compound a toxic or hazardous substance.
(13) `Mixture' means any combination of two or more chemicals,
if the combination is not, in whole or in part, the result of a chemical
reaction. However, if the combination was produced by a chemical
reaction but could have been produced without a chemical reaction, it is
also treated as a mixture. A mixture also includes any combination
which consists of a chemical and associated impurities.
(14) `Multi-media' means having to do with all environmental
media including, but not limited to, water, land, and air and workplaces
within facilities.
(15) `Non-isolated intermediate' means any intermediate which is
not intentionally removed from the equipment in which it is
manufactured,
including any reaction vessel in which it is manufactured, equipment
which is ancillary to the reaction vessel or similar equipment, and any
equipment through which the intermediate passes during a continuous
flow process, but not including tanks or other vessels or equipment in
which the substance or product is stored after manufacture.
(16) `Office', or `Office of Toxic Use Reduction Assistance and
Technology' means the Office of Toxic Use Reduction Assistance and
Technology established pursuant to this chapter.
(17) `Person' means any individual, trust, firm, joint stock
company, corporation, partnership, or association engaged in business
or in providing service, excluding the State, counties, and municipalities,
special purpose districts, and school districts.
(18) `POTW (publicly-owned treatment works) operators' means
holders of discharge permits for any devices and systems owned by the
State or any of its political subdivisions and used in the storage,
treatment, recycling, and reclamation of municipal sewage or industrial
wastes of a liquid nature to implement 33 U.S.C. Section 1281, or
necessary to recycle or reuse water at the most economical cost under
the estimated life of the works, including intercepting sewers, outfall
sewers, sewage collection systems, pumping, power, and other
equipment, and the appurtenances; extensions, improvements,
remodeling, additions, and alterations thereof; elements essential to
provide a reliable recycled supply such as standby treatment units and
clear well facilities; any works, including the land that will be an
integral part of the treatment process (including land used for the storage
of treated wastewater in land treatment systems prior to land application)
or is used for ultimate disposal of residues resulting from such treatment;
any other method or system for preventing, abating, reducing, storing,
treating, separating, or disposing of municipal waste, including storm
water runoff, or industrial waste, including waste in combined storm
water and sanitary sewer systems.
(19) `Process' means the preparation of a toxic or hazardous
substance, after its manufacture, for distribution in commerce:
(a) in the same form or physical state, or in a different form or
physical state from that in which it was received by the toxic user
preparing the substance; or
(b) as part of an article containing the toxic or hazardous
substance.
(20) `Product' means a product, a family of products, an
intermediate product, a family of intermediate products, or a desired
result or a family of results.
(21) `Production unit' means a process, line, method, activity, or
technique, or a combination or series thereof, used to produce a product.
(22) `SIC code' means the identification code assigned to facilities
by the United States Department of Commerce.
(23) `Small quantity toxic user' means any toxic user who is not a
large quantity toxic user.
(24) `Threshold amounts' means amounts initially established as
the following:
(a) for those toxic users that manufacture or process a toxic or
hazardous substance, as the terms `manufacture' and `process' are
defined in this chapter, the threshold amount for a toxic or hazardous
substance is twenty-five thousand pounds each year at any one facility;
and
(b) for those toxic users that otherwise use a toxic or
hazardous substance, the threshold amount for a toxic or hazardous
substance is ten thousand pounds each year at any one facility.
However, if the administrator of the United States Environmental
Protection Agency sets a threshold quantity for facility reporting on a
toxic or hazardous substance under Section 313 of EPCRA which is
lower than a corresponding threshold specified in paragraph (a) or (b),
the department shall change the corresponding threshold for that
substance under this chapter to be the same as the federal threshold.
(25) `Toxic user' means any toxic user who owns any facility that
manufactures, processes, or otherwise uses any toxic or hazardous
substance and that is classified in SIC Codes Ten through Fourteen
inclusive, Twenty through Forty inclusive, Forty-four through Fifty-one
inclusive, Seventy-two, Seventy three, Seventy-five, and Seventy-Six.
(26) `Toxic' means toxic or hazardous.
(27) `Toxic or hazardous substance' means any chemical substance
in a gaseous, liquid, or solid state which is identified on the toxic or
hazardous substance list established pursuant to this chapter, but which
does not include any chemical substance when it is:
(a) present in an article;
(b) used as a structural component of a facility;
(c) present in a product used for routine janitorial or facility
grounds maintenance;
(d) present in foods, drugs, cosmetics, or other personal items
used by employees or other toxic users at a facility;
(e) present in a product used for the purpose of maintaining motor
vehicles operated by a facility;
(f) present in process water or noncontact cooling water as drawn
from the environment or from municipal sources, or present in air used
either as compressed air or as part of combustion;
(g) present in a pesticide or herbicide when used in
agricultural applications; or
(h) present in crude, fuel, or lube oils for direct wholesale or
retail sale;
(28) `Toxic or hazardous substance list' means the list of toxic or
hazardous substances established pursuant to this chapter.
(29) `Toxic' means toxic or hazardous substances.
(30) `Toxic use reduction' means in-plant changes in production
processes or raw materials that reduce, avoid, or eliminate the use of
toxic or hazardous substances or generation of hazardous byproducts a
unit of product, so as to reduce risks to the health of workers,
consumers, or the environment, without shifting risks between workers,
consumers, or parts of the environment. Toxic use reduction must be
achieved through any of the following techniques:
(a) input substitution, which refers to replacing a toxic or
hazardous substance or raw material used in a production unit with a
nontoxic or less toxic substance;
(b) product reformulation, which refers to substituting for an
existing end product an end product which is nontoxic or less toxic upon
use, release, or disposal;
(c) production unit redesign or modification, which refers to
developing and using production units of a different design than those
currently used;
(d) production unit modernization, which refers to upgrading
or replacing existing production unit equipment and methods with other
equipment and methods based on the same production unit;
(e) improved operation and maintenance of production unit
equipment and methods which refers to modifying or adding to existing
equipment or methods including, but not limited to, such techniques as
improved housekeeping practices, system adjustments, product and
process inspections, or production unit control equipment or methods;
or
(f) recycling, reuse, or extended use of toxic by using equipment
or methods which become an integral part of the production unit of
concern, including but not limited to filtration and other closed loop
methods.
However, toxic use reduction does not include nor may it in any way
be inferred to promote or require incineration, transfer from one medium
of release or discharge to other media, off-site or out-of-process waste
recycling, or methods of end-of-pipe treatment of toxic as waste.
(31) `Trade secret' means any formula, plan, pattern, process,
production data, device, information, or compilation of information
which is used in a toxic user's business, and which gives the toxic user
an opportunity to obtain an advantage over competitors who do not
know or use it.
(32) `User segment' means a set of toxic users who employ a
similar production unit, as classified by the department pursuant to this
chapter.
(33) `Toxic Use Reduction Institute' or `institute', means the Toxic
Use Reduction Institute established pursuant to this chapter.
Section 44-109-30. In addition to any other requirements or
authorities of this chapter, the department's duties include the following:
( 1) The department shall identify all department requirements for
reporting on chemical use, release, and disposal, and to the maximum
extent possible, shall standardize, consolidate, and coordinate these
reporting requirements to minimize unnecessary duplication.
( 2) By January 1, 1993, the department shall, to the extent
practicable, coordinate information about the manufacture, distribution,
process, sale, storage, disposal, release, or other use of toxic, including
the inventory reporting requirement of section ten, on a computer system
in order to provide reliable and accessible information across the State
to aid in standardizing the inspection, enforcement, and other activities
of this State. The department shall also cooperate with and make this
information readily available through computer connections and other
means to the office, the institute, the Attorney General, and other state
agencies and POTW operators.
( 3) In order to facilitate the coordination of reporting
requirements, the department may seek unified reporting and
enforcement authority from the United States Environmental Protection
Agency on federal toxic laws and regulations, including but not limited
to the Clean Air Act, 42 U.S.C. Section 7401 et seq., Federal Water
Pollution Control Act, 33 U.S.C. Section 1251 et seq., Toxic Substances
Control Act, 15 U.S.C. Section 2601 et seq., Resource Conservation and
Recovery Act, 42 U.S.C. Section 6901 et seq., CERCLA and any
amendments thereto.
( 4) The department shall develop and implement, by January 1,
1994, guidelines and regulations on inspections which:
(a) ensure that, where appropriate, inspections are multi-media in
approach;
(b) ensure that, where appropriate, the inspections are
performed by teams of inspectors representing existing programs within
the department; and
(c) minimize duplication of inspection and enforcement effort
being conducted by other agencies.
( 5) The department shall ensure that, to the maximum extent
practicable, any toxic user found to be violating any law or standard for
which the department has enforcement jurisdiction shall practice toxic
use reduction in order to come into compliance with the violated law or
standard.
( 6) The department shall promulgate regulations which it
considers necessary for the proper administration of this chapter and to
protect the environment and public health, safety, and welfare. These
regulations shall, to the extent possible, complement regulations
promulgated pursuant to Section 313 of EPCRA.
( 7) On or before January 1, 1992, the department shall issue
guidelines concerning classification of production units in user segments
according to similarities in products and processes. The guidelines must
be based primarily on the logic and methodology of the product process
codes developed for the Organic Chemicals, Plastics, and Synthetic
Fibers (OCPSF) effluent guidelines and pretreatment standards under the
Federal Water Pollution Control Act (FWPCA) as amended and, to the
extent feasible and appropriate, on protocols and standards used by this
State and others. Based on these guidelines, reports filed pursuant to
Section 44-109-100 as of July 1, 1993, and further consideration of then
existing classification systems and protocols, the department shall before
January 2, 1994, promulgate regulations establishing classifications for
production units.
( 8) The department shall annually compile, analyze, and
summarize the reports and plan summaries required by Sections
44-109-100 and 44-109-110, to the extent available, and shall submit a
report to the council on the agency's findings regarding progress in and
expected progress in toxic use reduction and emissions reduction in the
State. A copy of the report must be filed with the Clerk of the House of
Representatives and the Clerk of the Senate.
( 9) Personnel or authorized agents of the department may at all
reasonable times enter into any premises, public or private, for the
purpose of investigating any records, substance, condition, equipment,
practice, or property relating to activities subject to regulation under this
chapter. For the purposes of the entries no warrant is required.
However, that upon demand by the owner or individual in control of the
premises, a warrant authorizing the entry and inspection pursuant to a
warrant may be sought only after the demand. A warrant may be sought
by personnel or authorized agents of the department without the demand
having been made. Any judicial officer authorized to issue warrants in
criminal cases may issue these warrants.
(10) Unless indicated otherwise in this chapter, the department
shall develop and make operational all programs and functions required
of the department by January 1, 1994.
Section 44-109-40. There is established an administrative council
on toxic use reduction consisting of nine members as follows:
(1) the Governor, or his designee;
(2) the chairman of the State Board of Health and Environmental
Control, or his designee;
(3) the chairman of the State Development Board, or his designee;
(4) the deans of the School of Engineering at the University of
South Carolina and Clemson University, or their designees;
(5) The president of the South Carolina Medical Association, or
his designee;
(6) The Commissioner of Labor, or his designee;
(7) A member of the public at large, one each to be appointed by
the Governor and the Lieutenant Governor.
Members shall serve ex officio, except that the members appointed
by the Governor and the Lieutenant Governor shall serve for the term of
the person who appointed them. Vacancies must be filled in the manner
of the original appointment for the unexpired portion of the term. The
chairman of the State Board of Health and Environmental Control or his
designee shall serve as chairman. Members of the council shall receive
for each meeting attended the per diem, subsistence, and mileage
provided by law for members of state boards, commissions and
committees, which must be paid from funds appropriated for the State
Department of Health and Environmental Control.
The council's duties include the following:
(1) By January 1, 1993, and thereafter, the council shall identify
all federal or state laws or regulations pertaining to chemical production
and use, hazardous waste, industrial hygiene, worker safety, public
exposure to toxic, and releases of toxic into the environment. The
council shall promote increased coordination of efforts to enforce these
laws and regulations and also determine how state programs should be
coordinated to promote most effectively toxic use reduction in the State.
(2) The council shall, by January 1, 1993, identify all state agency
and POTW requirements for reporting on toxic or hazardous substance
production, use, release, disposal, and worker exposure and to the
maximum extent practicable shall make recommendations to state
agencies and POTW operators in order to standardize, consolidate, and
coordinate these reporting requirements to minimize unnecessary
duplication
and provide for up-to-date and consistent information about
manufacturing, worker exposure, distribution, process, sale, storage,
disposal, release, or other use of chemicals on a facility, regional, and
statewide basis.
(3) The council shall promulgate regulations which it considers
necessary for the proper administration of its responsibilities pursuant
to this chapter.
(4) The council shall make policy recommendations annually in
a report to the Governor regarding toxic use reduction, the
implementation of this chapter, including a detailed report of the
expenditures made from the Toxic Use Reduction Fund, the achievement
of increased toxic use reduction, and file a copy of this report with the
Clerk of the House of Representatives and the Clerk of the Senate.
(5) In order to promote and effect toxic use reduction, the council
may comment on all proposed regulations pertaining to toxic production
and use, hazardous waste, industrial hygiene, worker safety, public
exposure to toxic, or releases of toxic into the environment before their
promulgation and may provide an equal opportunity for comment by the
advisory board.
(6) The council may recommend to the South Carolina Advisory
Board on Toxic Use Reduction the formation of ad hoc committees
pursuant to Section 44-109-50 of this chapter.
Section 44-109-50. There is established a South Carolina
Advisory Board on Toxic Use Reduction. The advisory board is
composed of fifteen members, as follows:
(1) the Attorney General or his designee;
(2) the executive director of the South Carolina Water Resources
Commission;
(3) thirteen members appointed by the Governor as follows:
(a) two members representing statewide environmental
organizations;
(b) two members representing labor;
(c) four members representing business,
including two representatives of small business;
(d) one member representing a public service district or
special purpose district operating a water system;
(e) one member representing a local toxic-related environmental
organization;
(f) two members, one each representing a statewide health policy
advocacy organization;
(g) one member of the general public.
The members provided in items (1) and (2) shall serve ex officio.
Members appointed by the Governor shall serve for terms of four years
and until their successors are appointed and qualify. Vacancies must be
filled in the manner of the original appointment for the unexpired
portion of the term. The member representing the general public may
not be reappointed for more than two consecutive terms. The Governor
shall appoint one member to serve as chairman. The member of the
advisory board shall receive for each meeting attended the mileage,
subsistence, and per diem provided by law for members of state boards,
committees, and commissions paid from funds appropriated for the State
Department of Health and Environmental Control.
The advisory board's responsibilities include, but are not limited to,
the following:
(1) fulfilling its obligations and responsibilities to work with the
council as described in this chapter;
(2) providing a forum for discussion and deliberation on matters
pertaining to the implementation of this chapter;
(3) establishing an annual governor's toxic use reduction award
program to recognize outstanding individual and organizational public
and private achievement in toxic use reduction; and
(4) whenever it considers it necessary, or at the recommendation
of the council, establishing ad hoc committees including, but not limited
to, members of the advisory board, to study and formulate
recommendations on particular issues or problems that arise concerning
the implementation of this chapter. The chairman of the advisory board,
subject to the approval of the majority of the advisory board, shall
appoint members of ad hoc committees. Ad hoc committees must be
established to include representation from priority user segments.
Section 44-109-60. There is established a Toxic Use Reduction
Institute at the University of South Carolina. The institute shall work in
cooperation with other faculty, staff, students, and programs of the
university. The institute shall submit to the council a set of operating
guidelines including, but not limited to, the types of services, programs,
and priorities related to toxic use reduction which it will offer. The
institute shall establish cooperative programs with other public and
private colleges and universities designed to augment the
implementation of this chapter; but any programs or curricula developed
by any other public and private colleges and universities in cooperation
with the institute are subject to the approval of the council. The institute
may establish fees, tuition, or other financial charges for its programs,
which must be credited to the toxic use reduction fund.
Through their programs the institute shall:
( 1) Provide general information about and actively publicize the
advantages of and developments in toxic use reduction, and the
requirements of this chapter.
( 2) Establish courses, seminars, conferences, and other events and
reports, updates, guides, another publications, and other means of
providing technical information for toxic users, and may work in
cooperation with the office as appropriate.
( 3) Develop and provide curriculum and training for higher
education students and faculty on toxic use reduction.
( 4) Engage in research, development, and demonstration of toxic
use reduction methods. This research may include, but not be limited to,
assessments of the impact of adopting the methods on the environment,
public health and worker exposure, and assessments of the economic and
employment impacts within affected firms or user segments.
( 5) By July 1, 1993, develop, in consultation with the department,
the office, and Sumter Technical College, a toxic use reduction planning
program for individuals who wish to be certified as toxic use reduction
planners. Programs may also be available at other public and private
colleges and universities located in this State subject to the approval of
the council. The programs must be designed to train toxic use reduction
planners to be qualified to assist toxic users in the development and
implementation of current toxic use reduction techniques and must be
designed to train toxic use reduction planners to be qualified to prepare,
review, and approve toxic use reduction plans established in Section
44-109-110 of this chapter.
( 6) Sponsor research or pilot projects to develop and demonstrate
innovative technologies for toxic use reduction. The results of these
projects must be available for use by the public. Information protected
by trade secret protections as established in Section 44-109-200 shall
remain protected.
( 7) Assist in the training of inspectors and other key toxic
personnel, if so requested by the department.
( 8) Provide toxic use reduction training and assistance to citizens,
community groups, workers, labor representatives, and local government
boards and officials. This program must at a minimum assist these
individuals and groups in understanding and reviewing reporting
requirements, toxic use reduction plan summaries, and citizen petition
and enforcement activities, pursuant to this chapter.
( 9) Take advantage of all available information from existing state
and federal programs on toxic use reduction and pollution prevention.
(10) Conduct a detailed study on potential restrictions on the use
of chemicals in this
State. The study must include, but not be limited to, existing national
and international experiences with restrictions; the social,
environmental, and economic costs and benefits of adopting chemical
restrictions; the potential for restrictions in this State, and how a
restriction program could be implemented. By January 1, 1995, the
institute shall present its findings on the study to the council which shall
file a copy of the study with the General Assembly and the Governor.
The council shall hold a public hearing on the study. By January 1,
1997, the institute shall present to the council a further study on this
state's experience with this chapter, and how it relates to the issue of
chemical restrictions. The council shall file a copy of the study with the
General Assembly and the Governor. The council shall hold a public
hearing on the study.
There is a Science Advisory Board associated with the institute
consisting of nineteen members appointed as follows:
(1) three members by the chairman of the State Board of Health
and Environmental Control;
(2) three members by the chairman of the State Development
Board;
(3) seven members by the Governor;
(4) three members by the Commissioner of Labor; and
(5) three members by the chairman of the Health and Human
Services Finance Commission.
Members shall serve for terms of four years and until their successors
are appointed and qualify. No member shall serve for more than two
consecutive terms. Vacancies must be filled in the manner of original
appointment for the unexpired portion of the term. Each member shall
have appropriate academic or professional experience. The institute
shall consult with the Science Advisory Board on issues including, but
not limited to, user segments, and additions and deletions to the list of
chemicals, and may consult with the Science Advisory Board on other
related matters. The members of the Science Advisory Board shall serve
without compensation.
Unless otherwise noted all programs of the institute described in this
section must be developed and operational by January 1, 1994.
Section 44-109-70. In order to implement this chapter the Office
of Toxic Use Reduction Assistance and Technology is established within
the Department of Health and Environmental Control and shall provide,
in addition to any other responsibilities in this chapter, the following
programs and responsibilities:
(1) Technical assistance to toxic users and small quantity toxic
users to assist them in achieving toxic use reduction and in complying
with the requirements of this chapter and the laws and regulations
identified in Section 44-109-40. The office shall establish criteria for
setting priorities for the assistance for users in priority user segments and
to users which have been referred to the office by the department.
(2) The office may recommend to the council user segments for
setting priorities subject to the provisions of Section 44-109-140 of this
chapter.
(3) Participation in an outreach program to small businesses
required to report and plan as a result of setting priorities and shall assist
first-time filers with reporting requirements and trade secret
submissions.
(4) Activities, wherever feasible, coordinated with private sector
initiatives in toxic use reduction and waste prevention education and
technical assistance.
(5) Make available to the department information it obtains in the
course of providing technical assistance to a toxic user, only if:
(a) the toxic user agrees that the information may be available to
the department; or
(b) the information is public record information; or
(c) the information pertains to an imminent threat to public health
or safety, or to the environment; or
(d) disclosure to the department is required by law.
Nothing in this section relieves any toxic user of any obligations to
provide the department any notice or information required by any
statute.
The office shall notify toxic users requesting technical assistance of
these provisions.
Section 44-109-80. In order to facilitate coordination of the
implementation of this chapter with existing state and federal programs
pertaining to toxic production and use, hazardous waste, industrial
hygiene, worker safety, public exposure to toxic, or release of toxic into
the environment, state agencies which administer these programs shall:
(1) review the programs and associated regulations of the agency
and ascertain how toxic use reduction can be promoted and achieved;
(2) amend those programs or associated regulations, where
feasible, so as to promote toxic use reduction as the preferred method for
achieving the goals of these programs and submit to the council
recommendations for coordinating toxic use reduction efforts with the
programs specifically established by this chapter within the department,
the office, and the institute;
(3) by January 1, 1994, coordinate, to the extent feasible,
reporting requirements and guidelines concerning the manufacture, use,
or release of toxic or hazardous substances in a manner consistent with
the recommendations for standardized, consolidated, and coordinated
state reporting requirements developed by the council pursuant to
Section 44-109-40 of this chapter;
(4) develop, on a biennial basis, a multi-media inspection manual
and training program for all inspectors on multi-media team inspections
related to toxic. Where feasible, inspector training must include
cross-training with other agencies that administer toxic-related
inspections. Agencies may request that the institute assist with the
training of inspectors to carry out multi-media inspections.
Section 44-109-90. The toxic or hazardous substance list consists
of:
(1) As of January 1, 1992, and thereafter, the chemicals identified
on the Toxic Chemical List established pursuant to Section 313 of
EPCRA. Each year the council shall adjust the toxic or hazardous
substance list to add or delete substances consistent with changes in the
toxic chemical list.
(2) The council shall by regulation, add all of the chemicals listed
pursuant to Sections 101(14) and 102 of CERCLA. The council shall,
by January 1, 1993, establish a schedule for the addition of these
chemicals to the toxic or hazardous substance list which must specify the
chemicals to be added for the calendar year reporting periods of 1993,
1994, and 1995. No more than thirty-five percent of these chemicals
must be added for each of the first two reporting periods. Each year the
council shall adjust the toxic or hazardous substance list to add or delete
substances consistent with changes in the lists of chemicals established
pursuant to Sections 101(14) and 102 of CERCLA.
(3) For the calendar year reporting periods 1996 and beyond, the
council may add to or delete additional chemicals from the list. No more
than ten chemicals may be added for any one calendar year, and no more
than ten chemicals may be deleted for any one calendar year. The
department shall provide recommendations proposing additions or
deletions. The council shall consult with the institute on any additions
or deletions. Any change in the list requires a one hundred eighty-day
notice before taking effect. Chemicals added or deleted by the Council
are not affected by items (1) or (2) of this section.
Section 44-109-100. Each large quantity toxic
user shall provide to the department for each facility an annual report for
each toxic or hazardous substance manufactured, processed, or
otherwise used at that facility in amounts equal to or exceeding the
applicable threshold amounts. In addition, large quantity toxic users
shall submit a report for each toxic or hazardous substance
manufactured, processed, or otherwise used at that facility in amounts
equal to or exceeding the applicable threshold amounts. In addition,
large quantity toxic users shall submit a report for each toxic or
hazardous substance manufactured or processed at that facility in an
amount greater or equal to ten thousand pounds, if the threshold amount
as defined in Section 44-109-20 for manufacturing or processing that
substance exceeds ten thousand pounds. Reporting must be expressed
in terms of the mass of each toxic or hazardous substance manufactured,
processed, or otherwise used. In reporting on each toxic or hazardous
substance, the large quantity toxic user shall report the total mass of the
substance, whether in a pure form or contained in a mixture, subject to
the establishment of de minimis levels of chemicals in a mixture by
regulation of the department. Reports for facilities in SIC Codes Twenty
through Thirty-nine inclusive must be submitted to the department on or
before July 1, 1993, and annually thereafter before July 2. Reports for
facilities in SIC Codes Ten through Fourteen inclusive, Forty, Forty-four
through Fifty-one inclusive, Seventy-two, Seventy-three, Seventy-five,
and Seventy-six must be submitted to the department before July 2,
1994, and annually thereafter before July 2. All reports must contain
data accounting for toxic or hazardous substances manufactured,
processed, or otherwise used during the preceding calendar year.
(1) The reports must use reporting forms required by the
regulations promulgated pursuant to Section 313 of EPCRA. To the
extent that information required by this section is not included in the
forms, the information must be
submitted on supplemental forms established by the department by
regulation promulgated no later than January 1, 1993, and modified
thereafter as appropriate.
(2) Each report must include the following facility information:
(a) the information required to be submitted under regulations
promulgated pursuant to Section 313 of EPCRA;
(b) the quantities of the toxic or hazardous substance at the
facility which are: manufactured; processed; otherwise used; generated
as byproduct before any handling, transfer, treatment, or release; and
shipped as or in product from the facility.
(3) (a) Each report must also include for each production unit at
the large quantity toxic user's facility in which the toxic or hazardous
substance is manufactured, processed, or otherwise used, the following
information:
( i) the information necessary to identify the large quantity
toxic user, the facility, the production unit, and the toxic or hazardous
substance;
( ii) an indication of whether the toxic or hazardous
substance is used in the production unit in amounts greater than zero
pounds and less than or equal to five thousand pounds; greater than five
thousand pounds but less than or equal to ten thousand pounds; or
greater than ten thousand pounds;
(iii) the reporting base year, which is the later of the first
calendar year for which the large quantity toxic user was or is required
to file any information regarding the toxic or hazardous substance
pursuant to this chapter or Section 313 of EPCRA or the first year for
which the large quantity toxic user has full information necessary to
document the information required under this item;
( iv) a byproduct reduction index which is a number that is
the result of the following equation: one hundred times [(A less B)
divided by A], where A represents the quantity of toxic generated as
byproduct a unit of product produced in the reporting base year, and B
represents the quantity of toxic generated as byproduct a unit of product
produced in the current reporting year;
( v) an emissions reduction index which is a number that is
the result of the following equation: one hundred times ((A less) divided
by A), where A represents the quantity of emissions attributable to the
production unit a unit of product produced in the reporting base year,
and B represents the quantity of emissions attributable to the production
unit a unit of product produced in the current reporting year;
( vi) a matrix form on which the large quantity toxic user
indicates the methods by which the increase in the byproduct reduction
index was achieved for each production operation during the reporting
year. On the horizontal axis on the matrix must be listed the toxic use
reduction techniques of input substitution, product reformulation,
production unit redesign, production unit modernization, improved
operation and maintenance of production units, and recycling or reuse
which is integral to the production unit, and the management technique
of using byproduct as product. On the vertical axis of the matrix must
be listed: materials handling and storage, processing operations, and
finished goods handling. The large quantity toxic user shall mark the
intersection of a production operation row and a reduction or
management technique column if during the reporting year
implementation of that technique for that operation accounted for an
increase of five or more points in the byproduct reduction index. In
addition, the matrix must contain another column listed `miscellaneous'
on the horizontal axis. The large quantity toxic user shall mark the
intersection of a product operation row and the miscellaneous column if
during the reporting year implementation of two or more of the
reduction or management techniques not otherwise marked for that row,
together account for an increase of five or more points in the byproduct
reduction index.
(b) For the information submitted under this item the large
quantity toxic user shall maintain at the facility documentation which is
necessary to substantiate the information submitted, including, but not
limited to, documentation of the quantity of the toxic or hazardous
substance used in each production unit and the quantity generated as
byproduct by each production unit.
(4) (a) The following are exempted from the reporting
requirements of this section:
( i) facilities with fewer than the equivalent of ten
full-time employees;
(ii) activities in laboratories, including quality control
laboratories, to the extent and in the manner the activities are exempted
from reporting in regulations promulgated pursuant to Section 313 of
EPCRA.
(b) The following are exempted from the reporting
requirements of item (3) of this section:
( i) pilot plants and pilot production units;
(ii) start-up production units for a time period equal to
the shorter of the time period from the date of initial operation until
required operational efficiency is achieved, or two years from the date
of initial operation.
(c) Facilities claiming the exemptions provided in this
subsection shall maintain on-site documentation supporting all
exemption claims.
(5) In calculating, measuring, or estimating quantities of a toxic
or hazardous substance to be reported under this section, large quantity
toxic users shall report with the maximum accuracy that is feasible and
practicable. Large quantity toxic users shall report quantities with
accuracy to two significant digits.
(6) If the department discovers a deficiency in a report, the
department shall allow the user ninety days from the date of notice of the
deficiency to correct the deficiency unless the deficiency was
intentional.
(7) A senior management official shall sign each report certifying
its accuracy and completeness.
(8) The department shall make available and, to the extent
practicable, shall require, reporting and recording of the report data via
magnetic media.
(9) Consistent with the authority established under Section
44-109-140, the department may require that small quantity toxic users
in user segments designated as priority segments pursuant to that
section, comply with part or all of the reporting requirements applicable
to large quantity toxic users pursuant to this section.
(10) Any toxic user required to file a report with the United States
Environmental Protection Agency pursuant to Section 313 of EPCRA
during the year 1991 shall file a copy of the report with the department
on or before July 1, 1992.
Section 44-109-110. (A)(1) Large quantity toxic users shall by
July 1, 1996, or by July 1 of the first subsequent year in which a report
pursuant to Section 44-109-100 is required, prepare and complete a toxic
use reduction plan for each facility for which they are required to file a
report in that year. The department shall, by January 1, 1993, specify
criteria for acceptable plans according to the requirements of this
section. In preparing plans, large quantity toxic users shall comply with
the requirements of this section for those toxic or hazardous substances
for which they are required to file reports for the previous calendar year.
(2) The plan in general must include:
(a) a statement of facility-wide management policy regarding
toxic use reduction; and
(b) a statement of the scope and objectives of the plan,
including the planned reductions in facility-wide use and byproduct
generation from the relevant base year for each covered toxic or
hazardous substance during the next two years and during the next five
years. The relevant base year must be established in accordance with
Section 44-109-100(2)(a)(iii).
(3) The plan must include for each production unit in which
a covered toxic or hazardous substance is manufactured, processed, or
otherwise used:
(a) a comprehensive economic and technical evaluation of
appropriate technologies, procedures, and training programs for
potentially achieving toxic use reduction for each covered toxic or
hazardous substance;
(b) an analysis of current and projected toxic use,
byproduct generation, and emissions;
(c) an evaluation of the types and amounts of covered toxic or
hazardous substances used;
(d) an identification of the economic impacts of the use of
each covered toxic or hazardous substance in the production unit,
including, but not limited to, raw material and byproduct storage and
handling costs, potential liability costs, and costs associated with
regulation;
(e) an identification of each technology, procedure, or training
program to be implemented for the purposes of achieving toxic use
reduction, the anticipated costs of implementation of each, and the
anticipated savings expected due to each;
(f) a schedule for implementation of these technologies,
procedures, and training programs;
(g) for each covered toxic or hazardous substance a
two-year and a five-year goal for the byproduct reduction index reported
pursuant to Section 44-109-100.
(B) Each toxic use reduction plan must be certified by a toxic use
reduction planner as meeting the department's criteria for acceptable
plans.
(C) Large quantity toxic users shall keep plans for a facility on the
premises of that facility, and shall make them available on the premises
to the department upon request.
(D) Large quantity toxic users shall update and recertify plans
every two years by July 1 of the applicable year.
(E) Six months before the date when the initial plan or an update
must be completed, each large quantity toxic user shall notify all of its
employees of the requirements for the plan or update, identify the toxic
or hazardous substances and production units for which a plan or update
will be submitted, provide the criteria for plans specified by the
department, and solicit in the notice comments or suggestions from all
employees on toxic use reduction options.
(F) Large quantity toxic users shall file a plan summary with the
department on or before July 1 of the applicable year. The summary
shall include:
(1) a copy of the plan certification by a toxic use reduction
planner;
(2) the goals contained in the plan as specified by subsections
(A)(2)(b) and (A)(3)(g); and
(3) for each production unit in which a covered toxic or
hazardous substance is manufactured, processed, or otherwise used, a
matrix of the form required to be submitted pursuant to Section
44-109-100. In completing the matrix, the large quantity toxic user shall
mark the intersection of a production operation row and a technique
column if the large quantity toxic user anticipates that during the next
five year implementation of that technique for that operation is expected
to account for an increase of five or more points in the byproduct
reduction index for one or more covered toxic or hazardous substances.
(G) Pursuant to the authority established under Section
44-109-140, the department may require that small quantity toxic users
in user segments designated as priority segments pursuant to that
section, shall comply with part or all of the planning requirements
applicable to large quantity toxic users established in this section.
(H) If the department determines the plan or a plan summary is not
in compliance with the requirements of this section, the department shall
allow the large quantity toxic user ninety days from the date of the
notice of the deficiency to correct the deficiency unless the deficiency
was intentional.
Section 44-109-120. (A) In order to be a certified toxic user
reduction planner, an individual must either:
(1) have satisfactorily completed a toxic use reduction
planning program, developed pursuant to Section 44-109-60(5), and
passed a uniform certification examination which the department shall
prepare by January 1, 1994, and modify thereafter as appropriate; or
(2) have at least two years of work experience in toxic use
reduction activities. The department shall by January 1, 1993, after
consultation with the Institute and the office, promulgate regulations
implementing the requirements of this section.
(B) Any individual who satisfies the requirement of at least two
years of work experience in toxic use reduction activities, but who has
not satisfactorily completed a toxic use reduction planning program and
passed the uniform certification examination, must only be certified as
a toxic use reduction planner to engage in toxic use reduction activities
in the facilities owned or operated by his employer.
(C) Certification is for not more than two years and is renewable
for additional two-year periods. For a certification to be renewed, a
toxic use reduction planner shall successfully complete continuing
education instruction in toxic use reduction activities.
(D) The department may establish a fee to be assessed on any
individual when the individual receives or renews his certification as a
toxic use reduction planner pursuant to this section. The fees must be
credited to the toxic use reduction fund.
(E) Certification may be suspended or revoked by the department
based on a finding of fraud, gross negligence in the certification of toxic
use reduction plans, or other good cause.
Section 44-109-130. (A) The goal of this State is to achieve by
1999 through toxic use reduction, a fifty percent reduction from 1989
quantities of toxic or hazardous byproducts generated by industry in this
State.
(B) The department shall compile annually the goals of all
reduction plans submitted by toxic users. By January 1, 1997, the
department shall complete a report comparing large quantity toxic user
goals to the statewide goal and file a copy of the report with the council,
the General Assembly, and the Governor.
Section 44-109-140. (A) Beginning on July 1, 1997, the council
shall identify by regulation user segments which it considers to be
priorities for achieving toxic use reduction, based on recommendations
from the department and the office, and in consultation with the institute.
User segments include all facilities regardless of thresholds using a
similar production unit. Important considerations for identifying priority
user segments must include:
(1) amounts of toxic or hazardous substances used by the user
segment in the production units of concern and their toxicity;
(2) amounts of toxic or hazardous substances disposed of,
discharged, or released to water, land, air, workplaces within facilities;
(3) the potential for current and future toxic use reduction and
the technical and economic feasibility of such reduction;
(4) the need for improvement by the user segment in its toxic
use reduction efforts; and
(5) the social, health, and economic benefits and costs to this
State, its political subdivisions, workers, and large quantity and small
quantity toxic users.
Consideration must be given to the adequacy of the State's resources
to effectively implement setting priorities of a user segment under
subsections (D), (E), and (F).
(B) The council may designate no more than three priority user
segments in any calendar year. There may not be more than fifteen
priority user segments.
(C) A priority designation expires upon the date five years after
designation. Priority designation may be renewed in the manner set
forth in subsection (A). Upon expiration of a priority designation, a
toxic user in the user segment may no longer be treated as being within
a priority user segment for purposes of this chapter, except that
applicable performance standards issued for the user segment or a
specific toxic user remain in effect.
(D) Results of setting priorities include:
(1) the department may refer toxic users in a priority user
segment to the office for assistance in achieving toxic use reduction;
(2) for toxic users in a priority user segment, the department
may require one or more of the following:
( i) for facilities with fewer than the equivalent of ten
full-time employees, reporting and planning on the priority production
unit consistent with the requirements of Sections 44-109-100 and
44-109-110;
( ii) for facilities that manufacture or process between ten
thousand and twenty-five thousand pounds of a toxic or hazardous
substance used in a priority production unit, reporting and planning on
the priority production unit consistent with the requirements of Sections
44-109-100 and 44-109-110, regardless of the number of employees;
(iii) for facilities that manufacture, process, or otherwise use
under ten thousand pounds of a toxic or hazardous substance used in a
priority production unit, reporting the quantity of the substance
manufactured, processed, or otherwise used in that production unit in
excess of a threshold established by the department, and maintaining
backup information for that quantity, regardless of the number of
employees. In addition, the toxic user shall maintain and make available
to the department on-site the quantity of that substance generated as
byproduct a unit of product for that production unit for each applicable
reporting calendar year.
(E) Facilities within a priority user segment may apply for toxic
use reduction waivers pursuant to Section 44-109-170.
(F) The department may set performance standards for priority
user segments pursuant to Section 44-109-150.
Section 44-109-150. (A) The department may request authority
from the council to promulgate, by regulation, a performance standard
for a priority user segment on a segment-wide basis. The authority may
be granted only if:
(1) a majority of toxic users in the user segment fall
significantly below regional, national, or international achievements of
byproduct generated a unit of product based on reasonably proven,
public domain technologies, or industry practices; or
(2) a number of toxic users in the user segment fall
significantly below a national norm for byproduct generated a unit of
product based on reasonably proven, public domain technologies, or
industry practices.
(B) Each performance standard issued under subsection (A) of this
section requires large quantity toxic users within the relevant user
segment to achieve a level or set of levels of byproducts generated a unit
of product. Any level must be based on reasonably proven, public
domain technologies or industry practices applicable to that user
segment.
(C) Each performance standard issued under subsection (A) of this
section must specify a reasonable time for compliance, not to exceed
three years. Any production unit covered by a performance standard
must come into compliance to the extent economically feasible. The
toxic user shall maintain on-site justification for any noncompliance
with the standard, or apply to the department for a waiver of the standard
based on a showing that the standard is not economically feasible for
that user.
(D) The department may establish performance
standards under this section for a specific toxic user within a priority
segment after considering the toxic user's efforts to reduce byproduct
and emissions and the potential effectiveness of referral for technical
assistance or proposing changes in the toxic user's use reduction plan
instead of establishing a performance standard, such consideration not
being subject to adjudication. A standard must be set through the
issuance of an administrative order applicable to the toxic user, which
may require a specified percent reduction of byproduct generated a unit
of product which is cost-effective, economically, and technically
feasible to the toxic user and the technology for which is commercially
available to the user segment. This administrative order must specify a
reasonable time for compliance. A toxic user for whom a performance
standard is set through this administrative order mechanism may appeal
the order as provided in Chapter 23 of Title 1.
(E) Upon the date one year after issuance of a performance
standard for a user segment, the department may apply to the council for
authority to extend the standard by regulation to small quantity toxic
users within the relevant user segment.
(F) A production unit otherwise covered by a performance
standard is exempt from the standard if compliance would adversely
affect the toxic user's ability to produce its product in conformance with
product specifications of the United States Food and Drug
Administration, Department of Defense, or any other federal agency.
(G) Nothing in this section diminishes the existing authority of the
department pursuant to any statute to establish by regulation, permit,
license, or order treatment technology standards, emission, or discharge
limits, operation and maintenance requirements, or management
practices for abating, controlling, or preventing a release or threat of
release of toxic or hazardous substances to the environment.
Section 44-109-160. Except where otherwise specifically
provided, when it appears to the department that there has been a
violation of this chapter, or any regulation promulgated or approval
issued or adopted under this chapter, the department may refer the toxic
user to the office for technical assistance, issue administrative orders
requiring compliance with the applicable requirement, or issue an
appropriate administrative penalty.
Without limiting any other authority available to the department
pursuant to any statute, the department may order a toxic user who
violates any standard limiting a release of toxic or hazardous substances
to the environment, or a threat of release, to prepare for that production
unit at which the violation occurred a toxic use reduction plan certified
by a toxic use reduction planner demonstrating maximum toxic use
reduction opportunities available to that user, where (i) the violation
causes or threatens to cause significant harm to the environment or to
public health or safety, or (ii) the toxic user has previously violated any
standard limiting a release of toxic or hazardous substances to the
environment, or a threat of the release.
Any toxic user in violation of any requirement in this chapter, or any
regulation promulgated or approval issued or adopted under this chapter,
may apply to the department for a toxic use reduction waiver pursuant
to Section 44-109-170.
Nothing in this section diminishes or conditions any authority
conferred on the department by any other statute.
Section 44-109-170. A toxic user may petition the department for
the temporary waiver of any law which the department administers or
any regulation adopted by the department if the toxic user proposes to
comply with the law or regulation through implementation of a toxic use
reduction technique or combination of toxic use reduction techniques in
preference to other techniques, or through use of innovative toxic use
reduction techniques. By January 1, 1993, the department shall
promulgate regulations governing waiver applications and issuance of
waivers.
The department may grant a waiver if the department finds that the
following conditions are met:
(1) that the proposed toxic use reduction technique or
combination of techniques will be effective in achieving toxic use
reduction and will achieve compliance with toxic laws and regulations
within the time period of the waiver; and
(2) that the proposed technique or combination of techniques will
not cause or contribute to an unreasonable risk to public health or safety
or the environment in their operation, function, or malfunction; and
(3) for waivers regarding the use of innovative toxic use reduction
techniques, that the proposed technique or combination of techniques
ultimately will achieve greater toxic use reduction than currently
available toxic use reduction techniques; and
(4) for waivers regarding the use of a toxic use reduction
technique or combination of such techniques in preference to other
techniques, that the long-term benefit to the environment from the
proposed technique or combination of techniques outweighs the benefits
to the environment from more prompt compliance through other
techniques.
The department shall decide whether or not to issue a waiver within
one hundred and twenty calendar days of receiving an application for a
waiver.
Any waiver granted must not exceed two years. A toxic user may
reapply for a waiver if he has been initially refused, or may apply for an
extension of a current waiver. The department shall make decisions on
these determinations within sixty calendar days of receiving
applications.
The department shall monitor the implementation and effectiveness
of the approved toxic use reduction techniques. If at any time the
department finds that the toxic user has not made a good faith effort to
implement the approved toxic use reduction techniques or that the
application was not made in good faith, the waiver must be terminated
and the toxic user shall have twenty-one calendar days to achieve
compliance with the requirements prescribed by the laws and regulations
from which the waiver was granted.
For violations which continue beyond the twenty-one day limit, the
toxic user is considered in violation of this chapter and subject to the
penalties established in this section.
If at any time the department finds that the toxic user has made a
good faith effort to implement the approved toxic use reduction
techniques, and to maintain compliance with the waiver but finds that
implementation of the approved toxic use reduction techniques does not
meet the conditions for the issuance of a waiver, then the agency shall
suspend or revoke the waiver and the toxic user has sixty days to achieve
the requirements prescribed by the laws and regulations from which the
waiver was granted.
In any event, the toxic user shall eliminate as quickly as possible all
unreasonable risks to public health, safety, welfare, or the environment.
A toxic user may also request that the department assist it in seeking
a waiver from any federal laws or regulations which are administered by
the department if the toxic user proposes to comply with the law or
regulation through implementation of a toxic use reduction technique or
combination of toxic use reduction techniques in preference to other
techniques, or through use of innovative toxic use reduction techniques.
Section 44-109-180. Residents of this State
may participate in monitoring and enforcement procedures as follows:
(1) The department shall make available for resident review
reports which are required under Section 44-109-100 and plan
summaries which are required under Section 44-109-110 but this
availability is subject to the provisions of Section 44-109-200.
(2) Any ten residents living within ten miles of a facility required
to prepare a toxic use reduction plan may petition the department for the
department to examine the plan, the plan summary, and any required
backup data and determine their adequacy. The department shall
determine whether the plan, plan summary, and any required backup
data meet the standards established pursuant to this chapter. The
department shall report its determination to the petitioners and the toxic
user in writing within a reasonable time.
(3)(a) The court of common pleas has jurisdiction to enforce the
requirements of this chapter in an action brought by any ten residents of
this State against:
( i) any toxic user alleged to be in violation of the
requirements; or
(ii) an appropriate official of this State when there is
alleged a failure of that official to perform any act or duty under this
chapter which is not discretionary with that official.
(b) No action may be commenced under this item against any
toxic user alleged to be in violation of the requirements of this chapter
prior to sixty days after the date on which the plaintiff gives notice of the
alleged violation to the department and the alleged violator. No action
may be commenced under this item against an owner or operator of a
facility alleged to be in violation of the requirements if the department
has commenced and is diligently pursuing an administrative order or
civil action to enforce the requirement concerned or to impose a civil
penalty under this chapter with respect to the violation of such
requirement. No action may be commenced under this subsection
against an appropriate official of the State prior to sixty days after the
date on which the plaintiff gives notice to the official and the
commissioner that the plaintiff will commence the action. Notice under
this item must be given in a manner the department shall promulgate by
regulation.
(c) The court, in issuing any final order in an action brought
pursuant to this item, may award costs of litigation, including reasonable
attorney and expert witness fees, to the prevailing or substantially
prevailing party other than the State who advances the purposes of this
chapter. The court may, if a temporary restraining order or preliminary
injunction is sought, require the filing of a bond or equivalent security
in accordance with the South Carolina Rules of Civil Procedure.
Nothing in this item restricts or expands any right which anyone may
have under any federal or state statute or common law to seek
enforcement of any requirement or to seek any other relief.
Section 44-109-190. (A) No later than April 1, 1992, the
department shall prepare and distribute to all employers in the State in
SIC Codes Ten through Fourteen inclusive, Twenty through Forty
inclusive, Forty-four through Fifty-one inclusive, Seventy-two,
Seventy-three, Seventy-five, and Seventy-six a toxic use survey. These
employers shall complete the survey and return it to the department no
later than July 1, 1992. The survey requires each employer to identify
as of January 1, 1992, for each covered facility it owns or operates
within this State, the full-time equivalent number of employees at that
facility; and, for each chemical identified in a list of chemicals provided
by the department containing chemicals identified in either the list
established pursuant to Section 313 of EPCRA or the list established
pursuant to Sections 101(14) and 102 of CERCLA, whether the
chemical is manufactured, processed, or otherwise used in the facility
and if so, whether the quantity is below ten thousand pounds, between
ten thousand and twenty-five thousand pounds, or over twenty-five
pounds. The completeness and accuracy of the employer's response to
the survey must be certified under pains and penalties of perjury by the
manager of the facility. The department shall analyze the results of the
survey no later than October 1, 1992, and recommend to the council any
adjustment to the fee that may be necessary to comply with subsection
(D) of this section.
(B) Any toxic user required to file a report with the United States
Environmental Protection Agency pursuant to Section 313 of EPCRA
during the year 1991 shall file a copy of the report with the department,
and pay a toxic use fee as set forth in subsection (C) before July 2, 1992.
(C) The toxic use fee must be initially determined as set forth in
this paragraph. The base fee for each facility is five hundred dollars for
facilities at which the equivalent of ten or more, but fewer than fifty,
full-time individuals are employed; Seven hundred fifty dollars for
facilities at which the equivalent of fifty or more, but fewer than one
hundred, full-time individuals are employed; Twelve hundred fifty
dollars for facilities at which the full-time equivalent of one hundred or
more, but fewer than five hundred, full-time individuals are employed;
and Twenty-five hundred dollars for facilities at which the equivalent of
more than five hundred full-time individuals are employed. The base fee
must be increased by three hundred dollars for each toxic or hazardous
substance for which the toxic user is required to file a report pursuant to
Section 44-109-90, but the maximum fee is fifteen hundred dollars for
facilities at which the equivalent of fifty or more, but fewer than one
hundred, full-time individuals are employed; four thousand dollars for
facilities at which the equivalent of one hundred or more, but fewer than
five hundred, full-time individuals are employed; and eighty-five
hundred dollars for facilities at which the equivalent of more than five
hundred full-time individuals are employed.
(D) Before November 2, 1992, the council shall by regulation
adjust the toxic use fee as set forth in this subsection. If the council
projects, on the basis of the survey required pursuant to Subsection (A),
that the aggregate assessment of toxic use fees on July 1, 1993, is likely
to fall below a lower bound which is four million dollars increased by
a proportion equal to any increase in the Producer Price Index between
July 1, 1991, and July 1, 1993, or above an upper bound which is five
million, five hundred thousand dollars increased by a proportion equal
to any increase in the Producer Price Index between July 1, 1991, and
July 1, 1993, the council shall adjust the base fees, additional amount for
each chemical reported, and maximum fees in direct proportion to result
in a projected aggregate target assessment, which is five million dollars
increased by a proportion equal to any increase in the Producer Price
Index between July 1, 1991, and July 1, 1993. The base, fees additional
amount for each chemical, and maximum fees must be adjusted annually
to reflect changes in the Producer price Index. The department shall
annually before April 2 publish in the State Register the adjustments to
be made for that year.
(E) Before July 2 of 1993, and each year thereafter, each toxic
user filing a report pursuant to this chapter shall pay a toxic use fee
calculated determined in accordance with subsection (D) for each
facility for which such a report is filed.
(F) The department shall impose an additional administrative fee
for failure to file a complete and accurate survey, or to pay any fee
pursuant to this section in a timely manner. The fee for failure to file the
survey may not exceed one thousand dollars. Late payment fees are
twenty percent of the fee otherwise due if payment is made between
seven and forty-five days of the date payment is due; fifty percent of the
fee otherwise due if payment is made between forty-six and ninety days
of the date payment is due; and one hundred percent of the amount
otherwise due if payment is not made within ninety days of the date
payment is due. Any fee which remains unpaid is collectible in judicial
proceedings. In addition to any other penalty provided by law in the
judicial proceedings, there must be added to the amount assessed
administratively a penalty of one-half of one percent of the amount
assessed for each month or fraction thereof during which the failure
continues, not exceeding, in the aggregate, twenty-five percent of the
amount.
(G) Any toxic user who employs the equivalent of fewer than one
hundred full-time individuals may in instances of severe financial
hardship apply before May 2 of any year to the Commission of the
Department of Health and Environmental Control for a waiver of the
toxic use fee for that year. The commission may, for good cause shown,
waive the fee for that year in whole or in part, or extend the time for
paying any part of the fee. The commission shall annually report to the
council all waivers granted.
(H) The council shall promulgate regulations which it considers
necessary for the proper administration of this section.
Section 44-109-200. (A) If a toxic user, required to submit to
the department a report, plan summary or other document, believes that
disclosing information in that document required by this chapter will
reveal a trade secret, he may file with the department a trade secret claim
as provided in this section. A toxic user making a trade secret claim
shall submit two copies of the required document to the department, one
with the information for which a trade secret claim is being made which
conceals that information, and one in an envelope marked `Confidential'
containing the information for which a trade secret claim is being made,
which the department, during the pendency of the trade secret claim,
shall keep in the secured storage area as referenced in this section. Any
toxic user concealing the specific chemical identity of any toxic or
hazardous nonconfidential copy in the place on the submittal where the
chemical identity would normally be included, shall include the generic
class or category of the toxic or hazardous substance.
(B) A toxic user is entitled to conceal information under this
section only if it:
(1) claims that the information is a trade secret, on the basis of the
factors enumerated in subsection (C); and
(2) includes in the envelope marked `Confidential' an
explanation of the reasons why the information is claimed to be a trade
secret, based on the factors enumerated in subsection (C), including a
specific description of why all the factors apply.
(C) No toxic user required to submit information under this
chapter may claim that the information is entitled to protection as a trade
secret under this section unless the toxic user shows all of the following:
(1) The toxic user has not disclosed the information to anyone
else, other than a member of a local emergency planning committee as
defined by EPCRA, an officer or employee of the United States or a
state or local government, an employee of the toxic user, or anyone who
is bound by a confidentiality agreement, and the toxic user has taken
reasonable measures to protect the confidentiality of the information and
intends to continue to take such measures.
(2) The information is not required to be disclosed, or
otherwise made available to the public under any other federal or state
law.
(3) Disclosure of the information is likely to cause substantial
harm to the competitive position of the toxic user.
(D) As soon as practicable after the effective date of this chapter,
the commissioner shall promulgate regulations to implement this section
guided to the extent practicable by comment `b' to Section 757 of the
Restatement of Torts.
(E) Any resident of this State may petition the commissioner for
the disclosure of any information which is claimed as a trade secret
under this section by specifying in the petition the information sought to
be disclosed. The commissioner may, in the absence of a petition under
this subsection, if he has reason to believe that the information
concealed may not be a trade secret, initiate a determination to be carried
out in accordance with subsection (F).
(F) (1) Within sixty days after the date of receipt of a petition
under subsection (E), or upon the initiative of the commissioner, the
commissioner shall review the explanation filed by a trade secret
claimant under subsection (C) and determine whether the explanation
presents assertions which, if true, are sufficient to support a finding that
the information concealed is a trade secret.
(2) If the commissioner determines pursuant to subsection
(F)(1) that the explanation presents assertions which, if true, are
sufficient to support a finding that the information concealed is a trade
secret, the commissioner, by certified mail, shall notify the trade secret
claimant that he has thirty days to supplement the explanation with
detailed information to support a finding that the information concealed
is a trade secret.
(3) If the commissioner determines, after receipt of any
supplemental supporting detailed information under subsection (F)(2),
that the information concealed is a trade secret, the commissioner, by
certified mail, shall notify the trade secret claimant and the petitioner, if
any. The petitioner, if any, may within thirty days seek judicial review
of the determination. The commissioner shall after final adjudication
immediately return to the trade secret claimant all supplemental
supporting detailed information submitted concerning the validity of the
trade secret claim. The information must be kept in the secure storage
area pursuant to this section while the claim is pending. The petitioner,
if any, is not permitted to have access, except as approved by the court.
In entering any order approving access by the petitioner, the court shall
consider the need for the entry of an appropriate protective order
restricting the use or further disclosure of the confidential information.
(4) If the commissioner determines, after receipt of any
supplemental supporting detailed information under subsection (F)(2),
that the concealed information is not a trade secret, the commissioner
shall, by certified mail, notify the trade secret claimant. The trade secret
claimant may within thirty days request an adjudicatory hearing on the
commissioner's determination. A timely request for an adjudicatory
hearing under this subsection acts as an automatic stay of the
commissioner's determination pending completion of the adjudicatory
hearing. A trade secret claimant aggrieved by the department's final
decision upon the adjudicatory hearing may within thirty days seek
judicial review during which time the information must remain
confidential. Any court in considering a motion for a temporary
restraining order or preliminary injunction to enjoin release of the
information shall presume that release would cause irreparable harm to
the trade secret claimant.
(5) If the commissioner determines pursuant to subsection
(F)(1) that the explanation presents insufficient assertions to support a
finding that the information concealed is a trade secret, the
commissioner, by certified mail, notify the trade secret claimant that he
has thirty days in which to request an adjudicatory hearing, or, upon a
showing of good cause, to amend the original explanation by providing
supplemental assertions to support the trade secret claim.
(6) If the commissioner does not reverse or modify his
determination under subsection (F)(1) after an adjudicatory hearing or
an examination of any supplemental assertions under subsection (F)(5),
the commissioner, by certified mail, notify the trade secret claimant and
the trade secret claimant has thirty days in which to file for judicial
review of the determination. A trade secret claimant aggrieved by the
commissioner's final decision may within thirty days seek judicial
review during which time the information must remain confidential.
Any court in considering a motion for a temporary restraining order or
preliminary injunction to enjoin release of such information shall
presume that release would cause irreparable harm to the trade secret
claimant.
(7) If the commissioner reverses or modifies his determination
under subsection (F)(1) after an appeal or an examination of any
supplemental assertions under subsection (F)(5), the procedures under
subsections (F)(2) through (F)(4) apply.
(G) Information certified to by an appropriate official of the
United States as necessarily kept secret for national defense purposes
must be accorded the full protections against disclosure as specified by
these officials in accordance with the law of the United States.
(H) Anyone who is not authorized to have access to, or who is not
authorized to disclose information submitted to the department under the
authority of this chapter, but who knowingly and wilfully uses, divulges,
or discloses to anyone else such information in a manner not authorized
by this chapter is in violation of this chapter and subject to the penalties
established in subsection (B) of Section 44-109-210.
(I) With respect to concealed information for which a trade secret
claim has been made but not finally denied the department may:
(1) Use the information, aggregated with other information
in a manner to maintain the confidentiality of the information claimed
to be a trade secret, to carry out responsibilities under this chapter. The
department may include such aggregated information in the publicly
available database required by this chapter.
(2) Disclose the information when the department is
required to do so to comply with federal law or regulation, but only to
the extent required by the federal law or regulation, and so long as the
department gives notice of the requirement to the toxic user before
complying.
(J) The department shall establish and maintain a single secure
storage area for confidential materials and information. Materials and
information for which trade secret claims have been made and related
supporting materials, and information for which these claims have been
finally adjudicated in favor of the claimant, must be kept in the secure
storage area and may only be removed in accordance with the provisions
of this section. Materials and information for which the claims have
been finally adjudicated against the claimant may be permanently
removed from the secure storage area.
A chief document control officer designated by the commissioner
must be responsible for controlling access to the secure storage area and
its contents. The commissioner may designate no more than five
department personnel at any one time as document control officers who
may have access to the secure storage area. Personnel and authorized
agents of the department who require information contained within the
secure storage area for the effective performance of their duties may,
upon request to a document control officer, examine documents
containing the information within a secure area adjoining the secure
storage area. Immediately upon completion of the examination, or at the
close of the business day, whichever is first, these personnel shall return
the documents to a document control officer for immediate return to the
secure storage area. A hearing officer or department counsel in an
adjudicatory hearing in which these documents or information are in
issue, or other department personnel authorized in writing by the
commissioner to do so, may remove these documents from the secure
storage area when necessary for preparation and conduct of the
adjudicatory hearing or effective performance of their duties if the
hearing officer, counsel, or other personnel retains control of these
documents and information through direct physical observation or
deposit in a locked room, file, or other secured area. Immediately upon
completion of the hearing or other required use, the documents must be
returned to a document control officer for immediate return to the secure
storage area. No copies of these documents or information may be made
except by a document control officer. Copies must be considered
equivalent to original documents for purposes of this section. Any notes
concerning this information made by department personnel must be
treated as confidential under this section. Department personnel or
authorized agents who violate the procedures required by this paragraph
are subject to disciplinary action. The council shall annually verify the
department's compliance with the requirements of this subsection.
(K) The provisions of this section do not apply to the disclosure
of emissions data.
Section 44-109-210. (A) Any person who violates any
provision of this chapter, or any regulation or approval issued or adopted
under this chapter is subject to a civil penalty not to exceed twenty-five
thousand dollars a day of the violation, which may be assessed in an
action brought on behalf of the State in the court of common pleas. The
section does not apply to Section 44-109-190.
(B) Any individual or toxic user who wilfully:
(1) violates any requirement of Sections 44-109-100 or
44-109-110, or any regulation promulgated or approval issued or
adopted under those sections; or
(2) violates any requirement of Section 44-109-20 is guilty of
a misdemeanor and, upon conviction, must be punished by a fine of not
less than two thousand five hundred dollars nor more than twenty-five
thousand dollars for each violation, or by imprisonment for not more
than one year, or both.
(C) If the commissioner determines that:
(1) (a) an explanation submitted by a trade
secret claimant pursuant to Section 44-109-200 of this chapter presents
insufficient assertions to support a finding that the information
concealed is a trade secret; or
(b) after receiving supplemental supporting detailed
information that the information concealed is not a trade secret; and
(2) the trade secret claim is frivolous, then the trade secret
claimant is subject to a civil penalty not to exceed twenty-five thousand
dollars a claim. The commissioner may assess the penalty
administratively or may request the Attorney General to bring an action
in any court of competent jurisdiction in the State to assess and collect
the penalty.
Section 44-109-220. The Attorney General may, upon request of
the department, bring action for injunctive relief against any person
violating a provision of this chapter or any regulation promulgated or
approval issued or adopted under this chapter and the court of common
pleas has jurisdiction to enjoin the violation and to grant further relief as
it considers appropriate.
Section 44-109-230. No employer or duly authorized agent of an
employer may discharge, refuse to hire, or in any other manner
discriminate against an employee because the employee has exercised
a right afforded by this chapter. Any employee of a toxic user claiming
to be aggrieved by a violation of this section may initiate proceedings in
the court of common pleas for the county in which the alleged violation
occurred. An employer found to have violated this paragraph is
exclusively liable to pay the employee lost wages, shall grant to the
employee suitable employment, and shall reimburse reasonable attorney
fees incurred in the protection of rights granted as determined by the
court. The court may grant whatever relief it considers necessary to
protect rights granted by this section. An employee may not waive
rights granted by this section.
Section 44-109-240. (A) There is created in the State Treasury
the Toxic Use Reduction Fund, a fund separate from the general fund of
the State, to which must be credited:
(1) amounts collected by the department as fees or penalties
pursuant to this chapter;
(2) fees, tuition, or other charges collected by the Toxic Use
Reduction Institute;
(3) appropriations, grants, gifts, or other contributions
explicitly made to the fund; and
(4) interest earned on the fund.
(B) Amounts credited to the fund may be appropriated only to
implement this chapter."
SECTION 4. This act takes effect upon approval by the Governor.
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