H 3153 Session 109 (1991-1992)
H 3153 General Bill, By J.T. McElveen, R.S. Corning, J.L.M. Cromer, Sheheen and
C.Y. Waites
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 Toxics Use Reduction Act.
12/27/90 House Prefiled
12/27/90 House Referred to Committee on Agriculture, Natural
Resources and Environmental Affairs
01/08/91 House Introduced and read first time HJ-82
01/08/91 House Referred to Committee on Agriculture, Natural
Resources and Environmental Affairs HJ-82
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 TOXICS 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 to:
(1) establish for South Carolina a statewide goal of reducing
toxic waste generated by fifty percent by the year 1999 using toxics use
reduction as the means of meeting this goal;
(2) establish toxics use reduction as the preferred means for
achieving compliance with any federal or state law or regulation
pertaining to toxics production and use, hazardous waste, industrial
hygiene, worker safety, public exposure to toxics, or releases of toxics
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) sustain, safeguard, and promote the competitive advantage
of businesses, large and small, while advancing innovation in toxics use
reduction and management;
(4) 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 toxics-related state programs;
(5) enhance and strengthen the enforcement of existing
environmental laws and regulations;
(6) promote coordination and cooperation among all state
agencies administering toxics-related programs.
SECTION 2. Chapter 1, Title 44 of the 1976 Code is amended by
adding:
"Section 44-1-115. In regulating or approving a pollution
prevention, control, or abatement plan, strategy, or technology, through
a permit, license regulation, guideline, plan approval, or other
departmental action affecting or prohibiting the emission, discharge,
disposal, release, or threat of release of a 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 plans, strategies, and technologies on public health
and safety and the environment that may arise through an 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 a plan, strategy, or
technology less protective of the environment than required by an
applicable federal statute, regulation, permit, license, or plan
approval."
SECTION 3. Title 44 of the 1976 Code is amended by adding:
"CHAPTER 109
Toxics Use Reduction Act
Section 44-109-10. This chapter may be cited as the 'Toxics 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, before 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' means the administrative council on toxics 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 a person who controls, is controlled by, or is under common control
with such person.
(10) 'Intermediate product' means:
(a) in chemical manufacturing, a 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 to alter the rate of chemical reactions, other
than a nonisolated intermediate as defined in this chapter;
(b) in any other setting, a 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 nonisolated intermediate as defined in this chapter.
(11) 'Large quantity toxic user' means a toxics user who
manufacturers, processes, or otherwise uses a 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 a 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 also is treated
as a mixture. A mixture 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) 'Nonisolated intermediate' means an intermediate which is not
removed intentionally from the equipment in which it is manufactured,
including a 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 Toxics Use Reduction Assistance and
Technology', means the Office of Toxics Use Reduction Assistance and
Technology established pursuant to this chapter.
(17) 'Person' means an 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 before land application)
or is used for ultimate disposal of residues resulting from the 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 toxics 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 toxics user' means a toxics user who is not a
large quantity toxics user.
(24) 'Threshold amounts' means amounts initially established as the
following:
(a) for those toxics 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;
(b) for those toxics 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) 'Toxics user' means a toxics user who owns a facility that
manufactures, processes, or otherwise uses a 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 a 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 a 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 toxics users at a facility;
(e) present in a product used to maintain 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) 'Toxics' means toxic or hazardous substances.
(30) 'Toxics 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. Toxics 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, 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 toxics 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, toxics 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 toxics as waste.
(31) 'Trade secret' means a formula, plan, pattern, process,
production data, device, information, or compilation of information
which is used in a toxics user's business and which gives the toxics user
an opportunity to obtain an advantage over competitors who do not
know or use it.
(32) 'User segment' means a set of toxics users who employ a similar
production unit, as classified by the department pursuant to this chapter.
(33) 'Toxics Use Reduction Institute' or 'institute' means the Toxics
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:
( 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, to the extent practicable,
shall coordinate information about the manufacture, distribution,
process, sale, storage, disposal, release, or other use of toxics, 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 also shall 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
toxics 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;
(c) minimize duplication of inspection and enforcement effort
being conducted by other agencies.
( 5) The department shall ensure that, to the maximum extent
practicable, a toxics user found to be violating a law or standard for
which the department has enforcement jurisdiction shall practice toxics
use reduction to comply 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,
to the extent possible, shall 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 before
January 2, 1994, shall promulgate regulations establishing classifications
for production units.
( 8) The department annually shall 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 toxics 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 at all
reasonable times may enter into premises, public or private, to
investigate 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, 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. A 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
toxics 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) two members 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:
(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 toxics, and releases of toxics 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 toxics use reduction in the
State.
(2) The council, by January 1, 1993, shall 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 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 toxics use reduction, the
implementation of this chapter, including a detailed report of the
expenditures made from the Toxics Use Reduction Fund, the
achievement of increased toxics use reduction, and file a copy of this
report with the Clerk of the House of Representatives and the Clerk of
the Senate.
(5) To promote and effect toxics use reduction, the council may
comment on all proposed regulations pertaining to toxics production and
use, hazardous waste, industrial hygiene, worker safety, public exposure
to toxics, or releases of toxics 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 Toxics 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 Toxics 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 toxics-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 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:
(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 Toxics Use Reduction Award
program to recognize outstanding individual and organizational public
and private achievement in toxics use reduction;
(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 Toxics 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 toxics 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 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, tuitions, or other financial charges for its programs which
must be credited to the toxics use reduction fund.
Through their programs, the institute shall:
( 1) provide general information about and actively publicize the
advantages of and developments in toxics use reduction and the
requirements of this chapter;
( 2) establish courses, seminars, conferences, and other events and
reports, updates, guides, other publications, and other means of
providing technical information for toxics 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 toxics use reduction;
( 4) engage in research, development, and demonstration of toxics
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 toxics use reduction
planning program for individuals who wish to be certified as toxics use
reduction planners. Programs also may 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 toxics
use reduction planners to be qualified to assist toxics users in the
development and implementation of current toxics use reduction
techniques and must be designed to train toxics use reduction planners
to be qualified to prepare, review, and approve toxics 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 toxics 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 toxics
personnel, if so requested by the department;
( 8) provide toxics use reduction training and assistance to citizens,
community groups, workers, labor representatives, and local government
boards and officials. This program at a minimum must assist these
individuals and groups in understanding and reviewing reporting
requirements, toxics 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 toxics 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;
(5) three members by the chairman of the Health and Human
Services Finance Commission.
Members shall serve for 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. To implement this chapter, the Office of Toxics
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 toxics users and small quantity toxics
users to assist them in achieving toxics 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) 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 assist
first-time filers with reporting requirements and trade secret
submissions;
(4) activities, wherever feasible, coordinated with private sector
initiatives in toxics 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 toxics user only if:
(a) the toxics 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 a toxics user of an obligation to
provide the department any notice or information required by a statute.
The office shall notify toxics users requesting technical assistance of
these provisions.
Section 44-109-80. To facilitate coordination of the implementation
of this chapter with existing state and federal programs pertaining to
toxics production and use, hazardous waste, industrial hygiene, worker
safety, public exposure to toxics, or release of toxics into the
environment, state agencies which administer these programs shall:
(1) review the programs and associated regulations of the agency
and ascertain how toxics use reduction can be promoted and achieved;
(2) amend those programs or associated regulations, where feasible,
so as to promote toxics use reduction as the preferred method for
achieving the goals of these programs and submit to the council
recommendations for coordinating toxics 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 toxics. Where feasible, inspector training must include
cross-training with other agencies that administer toxics-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 toxics 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 by regulation shall add all of the chemicals listed
pursuant to Sections 101(14) and 102 of CERCLA. The council, by
January 1, 1993, shall 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 additions or
deletions. A 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 item (1) or (2).
Section 44-109-100. Each large quantity toxics 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 toxics 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 toxics 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 toxics
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 second. 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 second. 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:
(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 a byproduct before any handling, transfer, treatment, or release, and
shipped as or in product from the facility;
(3) (a) Each report also must include for each production unit at
the large quantity toxics user's facility in which the toxic or hazardous
substance is manufactured, processed, or otherwise used:
( i) the information necessary to identify the large quantity
toxics 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 toxics 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 toxics 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 toxics generated as byproduct
a unit of product produced in the reporting base year, and B represents
the quantity of toxics generated as byproduct a unit of product produced
in the current reporting year;
( 5) 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 toxics 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 toxics 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 toxics 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 toxics 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 toxics 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):
( 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
toxics users shall report with the maximum accuracy that is feasible and
practicable. Large quantity toxics 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 toxics 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 toxics users pursuant to this section.
(10) A toxics 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 toxics users by July 1,
1996, or by July first of the first subsequent year in which a report
pursuant to Section 44-109-100 is required, shall prepare and complete
a toxics use reduction plan for each facility for which they are required
to file a report in that year. The department, by January 1, 1993, shall
specify criteria for acceptable plans according to the requirements of this
section. In preparing plans, large quantity toxics 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
toxics use reduction;
(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 toxics use reduction for each covered toxic or
hazardous substance;
(b) an analysis of current and projected toxics 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 toxics
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 toxics use reduction plan must be certified by a toxics use
reduction planner as meeting the department's criteria for acceptable
plans.
(C) Large quantity toxics 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 toxics users shall update and recertify plans
every two years by July first of the applicable year.
(E) Six months before the date when the initial plan or an update
must be completed, each large quantity toxics 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 toxics use reduction options.
(F) Large quantity toxics users shall file a plan summary with the
department on or before July first of the applicable year. The summary
shall include:
(1) a copy of the plan certification by a toxics use reduction
planner;
(2) the goals contained in the plan as specified by subsections
(A)(2)(b) and (A)(3)(g);
(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 toxics user
shall mark the intersection of a production operation row and a
technique column if he 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 toxics 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 toxics 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 toxics 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) To be a certified toxics user reduction
planner, an individual either must:
(1) have completed satisfactorily a toxics 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 toxics use
reduction activities. The department by January 1, 1993, after
consultation with the Institute and the office, shall promulgate
regulations implementing the requirements of this section.
(B) An individual who satisfies the requirement of at least two years
of work experience in toxics use reduction activities, but who has not
satisfactorily completed a toxics use reduction planning program and
passed the uniform certification examination, must be certified only as
a toxics use reduction planner to engage in toxics 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 toxics
use reduction planner shall complete successfully continuing education
instruction in toxics use reduction activities.
(D) The department may establish a fee to be assessed on an
individual when the individual receives or renews his certification as a
toxics use reduction planner pursuant to this section. The fees must be
credited to the toxics 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
toxics use reduction plans, or other good cause.
Section 44-109-130. (A) The goal of this State is to achieve by
1999, through toxics 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 toxics users. By January 1, 1997, the
department shall complete a report comparing large quantity toxics 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 toxics 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 toxics use reduction and
the technical and economic feasibility of the reduction;
(4) the need for improvement by the user segment in its toxics
use reduction efforts;
(5) the social, health, and economic benefits and costs to this
State, its political subdivisions, workers, and large quantity and small
quantity toxics 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 a 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
toxics 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 toxics user remain in effect.
(D) Results of setting priorities include:
(1) the department may refer toxics users in a priority user
segment to the office for assistance in achieving toxics use reduction;
(2) for toxics 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 toxics 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 toxics
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 toxics 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 toxics 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 toxics users within the relevant user
segment to achieve a level or set of levels of byproducts generated a unit
of product. A 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. A production unit covered by a performance standard must
come into compliance to the extent economically feasible. The toxics
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 feasible economically for that user.
(D) The department may establish performance standards under this
section for a specific toxics user within a priority segment after
considering the toxics user's efforts to reduce byproduct and emissions
and the potential effectiveness of referral for technical assistance or
proposing changes in the toxics user's use reduction plan instead of
establishing a performance standard, the 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
toxics user, and the technology for which is commercially available to
the user segment. This administrative order must specify a reasonable
time for compliance. A toxics 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 toxics users within
the relevant user segment.
(F) A production unit otherwise covered by a performance standard
is exempt from the standard if compliance would affect adversely the
toxics 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 a 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 a regulation promulgated or approval issued or adopted under
this chapter, the department may refer the toxics 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 a statute, the department may order a toxics user who
violates a 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 toxics use reduction plan certified
by a toxics use reduction planner demonstrating maximum toxics 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 toxics user previously has violated a
standard limiting a release of toxic or hazardous substances to the
environment, or a threat of the release.
A toxics user in violation of a requirement in this chapter, or a
regulation promulgated or approval issued or adopted under this chapter,
may apply to the department for a toxics use reduction waiver pursuant
to Section 44-109-170.
Nothing in this section diminishes or conditions an authority
conferred on the department by any other statute.
Section 44-109-170. A toxics user may petition the department for
the temporary waiver of a law which the department administers or a
regulation adopted by the department if the toxics user proposes to
comply with the law or regulation through implementation of a toxics
use reduction technique or combination of toxics use reduction
techniques in preference to other techniques or through use of innovative
toxics 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 toxics use reduction technique or
combination of techniques will be effective in achieving toxics use
reduction and will achieve compliance with toxics laws and regulations
within the time period of the waiver; (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
operation, function, or malfunction; (3) for waivers regarding the use
of innovative toxics use reduction techniques, that the proposed
technique or combination of techniques ultimately will achieve greater
toxics use reduction than currently available toxics use reduction
techniques;
(4) for waivers regarding the use of a toxics 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 twenty calendar days of receiving an application for a
waiver.
A waiver granted must not exceed two years. A toxics user may
reapply for a waiver if he has been refused initially 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 toxics use reduction techniques. If at any time the
department finds that the toxics user has not made a good faith effort to
implement the approved toxics use reduction techniques or that the
application was not made in good faith, the waiver must be terminated
and the toxics 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
toxics 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 toxics user has made a
good faith effort to implement the approved toxics use reduction
techniques and to maintain compliance with the waiver but finds that
implementation of the approved toxics 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 toxics user has sixty days to
achieve the requirements prescribed by the laws and regulations from
which the waiver was granted.
In any event, the toxics user shall eliminate as quickly as possible all
unreasonable risks to public health, safety, welfare, or the environment.
A toxics user also may request that the department assist it in seeking
a waiver from federal laws or regulations which are administered by the
department if the toxics user proposes to comply with the law or
regulation through implementation of a toxics use reduction technique
or combination of toxics use reduction techniques in preference to other
techniques or through use of innovative toxics 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 toxics 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 toxics
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) a toxics 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 an act or duty under this chapter
which is not discretionary with that official.
(b) No action may be commenced under this item against a
toxics user alleged to be in violation of the requirements of this chapter
before 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 pursuing diligently 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 the
requirement. No action may be commenced under this subsection
against an appropriate official of the State before 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 a 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, if a temporary restraining order or preliminary
injunction is sought, may 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 a right which anyone may have
under a federal or state statute or common law to seek enforcement of a
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, Fourty-four through Fifty-one inclusive, Seventy-two,
Seventy-three, Seventy-five, and Seventy-six a toxics 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
thousand 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).
(B) A toxics user required to file a report with the United States
Environmental Protection Agency pursuant to Section 313 of EPCRA
during 1991 shall file a copy of the report with the department and pay
a toxics use fee as set forth in subsection (C) before July 2, 1992.
(C) The toxics use fee must be determined initially 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 by regulation shall adjust
the toxics 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 toxics 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 an 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 an 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 an 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 annually
before April second shall publish in the State Register the adjustments
to be made for that year.
(E) Before July 2, 1993, and each year thereafter, each toxics user
filing a report pursuant to this chapter shall pay a toxics 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 a 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. A 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 of a month during which the failure
continues, not exceeding, in the aggregate, twenty-five percent of the
amount.
(G) A toxics user who employs the equivalent of fewer than one
hundred full-time individuals in instances of severe financial hardship
may apply before May second of a year to the Commission of the
Department of Health and Environmental Control for a waiver of the
toxics use fee for that year. The commission, for good cause shown,
may 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 report annually 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 toxics 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 toxics 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. A
toxics user concealing the specific chemical identity of a toxic or
hazardous nonconfidential copy in the place on the submittal where the
chemical identity normally would be included, shall include the generic
class or category of the toxic or hazardous substance.
(B) A toxics 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);
(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 toxics 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 toxics user shows all of the following:
(1) the toxics 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 toxics user, or anyone who
is bound by a confidentiality agreement, and the toxics 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 toxics 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) A resident of this State may petition the commissioner for the
disclosure of information which is claimed as a trade secret under this
section by specifying in the petition the information sought to be
disclosed. The commissioner, 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, may 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 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, within thirty days may seek judicial review of the
determination. The commissioner after final adjudication immediately
shall 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
an 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 supplemental
supporting detailed information under subsection (F)(2), that the
concealed information is not a trade secret, the commissioner, by
certified mail, shall notify the trade secret claimant. The trade secret
claimant within thirty days may 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 within thirty days may seek
judicial review during which time the information must remain
confidential. A 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, shall notify the trade secret claimant that he has thirty
days in which to request an ajudicatory 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, shall 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 within thirty days may seek judicial
review during which time the information must remain confidential. A
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.
(7) If the commissioner reverses or modifies his determination
under subsection (F)(1) after an appeal or an examination of
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 information in a manner not authorized by
this chapter, is in violation of this chapter and subject to the penalties
established in Section 44-109-210(B).
(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 toxics 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 finally
have been adjudicated in favor of the claimant, must be kept in the
secure storage area and may be removed only in accordance with the
provisions of this section. Materials and information for which the
claims have been adjudicated finally 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 a 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, upon request
to a document control officer, may 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. 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 annually shall 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) A person who violates a provision of this
chapter, or a 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) An individual or toxics user who wilfully:
(1) violates a requirement of Section 44-109-100 or 44-109-110,
or a regulation promulgated or approval issued or adopted under those
sections, or
(2) violates a 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 or 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) that 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 a court of competent jurisdiction in the State to assess and collect the
penalty.
Section 44-109-220. The Attorney General, upon request of the
department, may bring action for injunctive relief against a person
violating a provision of this chapter or a 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. An employee of a toxics 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 liable
exclusively 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
Toxics 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 Toxics Use
Reduction Institute;
(3) appropriations, grants, gifts, or other contributions explicitly
made to the fund;
(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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