Current Status Introducing Body:Senate Bill Number:742 Primary Sponsor:Leventis Committee Number:13 Type of Legislation:GB Subject:Toxic Use Reduction Act Residing Body:Senate Current Committee:Medical Affairs Computer Document Number:742 Introduced Date:Mar 06, 1991 Last History Body:Senate Last History Date:Mar 06, 1991 Last History Type:Introduced, read first time, referred to Committee Scope of Legislation:Statewide All Sponsors:Leventis Rose Land Passailaigue Giese Type of Legislation:General Bill
Bill Body Date Action Description CMN
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742 Senate Mar 06, 1991 Introduced, read first time, 13
referred to Committee
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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:
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.