Bill Text: OH HB570 | 2013-2014 | 130th General Assembly | Introduced

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Bill Title: To require that a portion of forfeitures assessed for violations or compliance failures resulting in property damage be paid to the political subdivision in which the damage occurred or to a political subdivision or state agency that incurred costs in remediating the violation or compliance failure.

Spectrum: Partisan Bill (Democrat 4-0)

Status: (Introduced - Dead) 2014-05-27 - To Finance and Appropriations [HB570 Detail]

Download: Ohio-2013-HB570-Introduced.html

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As Introduced

130th General Assembly Regular Session 2013-2014

H. B. No. 570

Representative Rogers 

Cosponsors: Representatives Gerberry, Barborak, Celebrezze 

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A BILL

To amend sections 4905.54, 4905.57, 4905.95, 4907.47,

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4907.60, 4921.21, and 4973.11 and to enact

2

sections 4905.97, 4905.971, 4905.972, 4905.973,

3

4905.974, and 4905.975 of the Revised Code to

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require that a portion of forfeitures assessed for

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violations or compliance failures resulting in

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property damage be paid to the political

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subdivision in which the damage occurred or to a

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political subdivision or state agency that

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incurred costs in remediating the violation or

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compliance failure.

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BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1.  That sections 4905.54, 4905.57, 4905.95, 4907.47,	12
4907.60, 4921.21, and 4973.11 be amended and sections 4905.97,	13
4905.971, 4905.972, 4905.973, 4905.974, and 4905.975 of the	14
Revised Code be enacted to read as follows:	15

Sec. 4905.54.  Every public utility or railroad and every	16
officer of a public utility or railroad shall comply with every	17
order, direction, and requirement of the public utilities	18
commission made under authority of this chapter and Chapters	19
4901., 4903., 4907., and 4909. of the Revised Code, so long as	20
they remain in force. Except as otherwise specifically provided in	21
section 4905.95 of the Revised Code, the public utilities	22
commission may assess a forfeiture of not more than ten thousand	23
dollars for each violation or failure against a public utility or	24
railroad that violates a provision of those chapters or that after	25
due notice fails to comply with an order, direction, or	26
requirement of the commission that was officially promulgated.	27
Each day's continuance of the violation or failure is a separate	28
offense. AllExcept as provided in sections 4905.97 to 4905.975 of	29
the Revised Code, all forfeitures collected under this section	30
shall be credited to the general revenue fund.	31

Sec. 4905.57.  Except as otherwise specifically provided in	32
sections 4905.96 and 4923.99 of the Revised Code, actions to	33
recover forfeitures provided for in this chapter and Chapters	34
4901., 4903., 4907., 4909., and 4923. of the Revised Code shall be	35
prosecuted in the name of the state and may be brought in the	36
court of common pleas of any county in which the public utility,	37
railroad, or motor carrier is located. Such actions shall be	38
commenced and prosecuted by the attorney general when the attorney	39
general is directed to do so by the public utilities commission.	40
MoneysExcept as provided in sections 4905.97 to 4905.975 of the	41
Revised Code, moneys recovered by such actions shall be deposited	42
in the state treasury to the credit of the general revenue fund.	43

Sec. 4905.95.  (A) Except as otherwise provided in division	44
(C) of this section:	45

(1) The public utilities commission, regarding any proceeding	46
under this section, shall provide reasonable notice and the	47
opportunity for a hearing in accordance with rules adopted under	48
section 4901.13 of the Revised Code.	49

(2) Sections 4903.02 to 4903.082, 4903.09 to 4903.16, and	50
4903.20 to 4903.23 of the Revised Code apply to all proceedings	51
and orders of the commission under this section and to all	52
operators subject to those proceedings and orders.	53

(B) If, pursuant to a proceeding it specially initiates or to	54
any other proceeding and after the hearing provided for under	55
division (A) of this section, the commission finds that:	56

(1) An operator has violated or failed to comply with, or is	57
violating or failing to comply with, sections 4905.90 to 4905.96	58
of the Revised Code or the pipe-line safety code, the commission	59
by order:	60

(a) Shall require the operator to comply and to undertake	61
corrective action necessary to protect the public safety;	62

(b) May assess upon the operator forfeitures of not more than	63
one hundred thousand dollars for each day of each violation or	64
noncompliance, except that the aggregate of such forfeitures shall	65
not exceed one million dollars for any related series of	66
violations or noncompliances. In determining the amount of any	67
such forfeiture, the commission shall consider all of the	68
following:	69

(i) The gravity of the violation or noncompliance;

70

(ii) The operator's history of prior violations or	71
noncompliances;	72

(iii) The operator's good faith efforts to comply and	73
undertake corrective action;	74

(iv) The operator's ability to pay the forfeiture;

75

(v) The effect of the forfeiture on the operator's ability to	76
continue as an operator;	77

(vi) Such other matters as justice may require.

78

All Except as provided in sections 4905.97 to 4905.975 of the	79
Revised Code, all forfeitures collected under this division or	80
section 4905.96 of the Revised Code shall be deposited in the	81
state treasury to the credit of the general revenue fund.	82

(c) May direct the attorney general to seek the remedies	83
provided in section 4905.96 of the Revised Code.	84

(2) An intrastate pipe-line transportation facility is	85
hazardous to life or property, the commission by order:	86

(a) Shall require the operator of the facility to take	87
corrective action to remove the hazard. Such corrective action may	88
include suspended or restricted use of the facility, physical	89
inspection, testing, repair, replacement, or other action.	90

(b) May direct the attorney general to seek the remedies	91
provided in section 4905.96 of the Revised Code.	92

(C) If, pursuant to a proceeding it specially initiates or to	93
any other proceeding, the commission finds that an emergency	94
exists due to a condition on an intrastate pipe-line	95
transportation facility posing a clear and immediate danger to	96
life or health or threatening a significant loss of property and	97
requiring immediate corrective action to protect the public	98
safety, the commission may issue, without notice or prior hearing,	99
an order reciting its finding and may direct the attorney general	100
to seek the remedies provided in section 4905.96 of the Revised	101
Code. The order shall remain in effect for not more than forty	102
days after the date of its issuance. The order shall provide for a	103
hearing as soon as possible, but not later than thirty days after	104
the date of its issuance. After the hearing the commission shall	105
continue, revoke, or modify the order and may make findings under	106
and seek appropriate remedies as provided in division (B) of this	107
section.	108

Sec. 4905.97.  The public utilities commission, in assessing	109
a forfeiture pursuant to section 4905.54, 4905.95, 4907.47,	110
4907.60, 4923.99, or 4973.11 of the Revised Code, shall determine	111
whether the violation or compliance failure for which the	112
forfeiture is assessed resulted in one or both of the following:	113

(A) Damage in excess of one thousand dollars to property,	114
other than the property of the person required to pay the	115
forfeiture;	116

(B) Remediation costs in excess of one thousand dollars,	117
incurred by either of the following:	118

(1) A political subdivision involved in the remediation	119
effort;	120

(2) A state agency involved in the remediation effort.

121

If the commission determines that such damage occurred, or	122
such remediation costs have been incurred, those forfeitures	123
collected or recovered shall be placed in the local damage payment	124
fund created in section 4905.971 of the Revised Code.	125

Sec. 4905.971.  There is hereby created the local damage	126
payment fund, which shall be in the custody of the state treasurer	127
but shall not be a part of the state treasury. The fund shall	128
consist of money deposited into the fund as required under section	129
4905.97 of the Revised Code. Money in the fund shall be used in	130
accordance with section 4905.972 of the Revised Code. Investment	131
earnings on money in the fund shall be retained by the fund.	132

Sec. 4905.972.  (A) The public utilities commission shall	133
disburse money from each forfeiture described in section 4905.97	134
of the Revised Code to the following entities, if the commission	135
approves their application for disbursement:	136

(1) A political subdivision in which the property damage	137
occurred;	138

(2) A political subdivision that incurred costs to remediate	139
the violation or compliance failure;	140

(3) An agency of this state that incurred costs to remediate	141
the violation or compliance failure.	142

(B) Before making the distribution, the commission may retain	143
from the forfeiture amount collected or recovered an amount	144
necessary to cover its administrative costs pursuant to this	145
section, but not to exceed thirty per cent of the forfeiture	146
collected or recovered.	147

(C) The amount disbursed shall be equal to the amount of the	148
forfeiture collected or recovered less the amount retained by the	149
commission as allowed by this section.	150

(D) To the extent that multiple entities apply for	151
disbursement of funds under this section for a specific violation	152
or compliance failure, the commission shall review the	153
applications and apportion the funds for disbursal based upon each	154
applicant's percentage of remediation costs incurred or damages	155
sustained to the total of remediation costs incurred and damages	156
sustained resulting from the violation or compliance failure.	157

Sec. 4905.973. Funds disbursed to an agency under division	158
(A)(3) of section 4905.972 of the Revised Code are not subject to	159
section 113.08 of the Revised Code. The agency shall deposit the	160
funds received into the remediation cost reimbursement fund, which	161
is hereby created in the custody of the treasurer of state but not	162
as a part of the state treasury. The money in the fund shall be	163
used to reimburse contributing agencies for their remediation	164
costs to the extent of their contributions to the fund plus any	165
investment earnings on those contributions. All investment	166
earnings of the fund shall be credited to the fund.	167

Sec. 4905.974.  Annually, between the thirtieth day of June	168
and the thirty-first day of July, the public utilities commission	169
shall certify to the office of budget and management the balance	170
in the local damage payment fund that exceeds the amount pledged	171
for disbursements under section 4905.972 of the Revised Code. On	172
the thirty-first day of July, or as soon as possible thereafter,	173
the director of budget and management shall transfer the excess	174
amount to the general revenue fund.	175

Sec. 4905.975.  The public utilities commission shall adopt	176
rules as necessary to implement the requirements of sections	177
4905.97 to 4905.974 of the Revised Code, including rules that	178
establish and govern an application process for the disbursement	179
of money from forfeitures under section 4905.972 of the Revised	180
Code.	181

Sec. 4907.47.  (A) If, after public hearing as to the	182
necessity for installing protective devices at a public railroad	183
highway grade crossing, written notice of which is published once	184
a week for three consecutive weeks in a newspaper of general	185
circulation in the county in which the crossing is located and is	186
given the railroad and public authority involved at least thirty	187
days in advance of such hearing, it is the opinion of the public	188
utilities commission that the public safety requires a gate,	189
automatic alarm bell, or other mechanical device to be erected and	190
maintained at any place where a public road or street is crossed	191
at the same level by a railroad, and the crossing has been	192
declared by the commission to be so dangerous and hazardous as to	193
require additional protective devices, or the public safety	194
requires that a flagmanflagger be stationed and maintained at	195
such crossing, the commission shall give the superintendent,	196
manager, or other officer in charge of such railroad a written	197
order of what is required, and shall assign the cost of installing	198
any such device between the railroad and the public in any	199
proportion it determines proper that is consistent with any	200
applicable federal requirements, after giving due consideration to	201
the factors listed in division (B) of this section.	202

(B) In assigning the cost of any such device the commission	203
shall consider factors of volume of vehicular traffic, volume of	204
train traffic, train type and speed, limitations of view and the	205
causes thereof, savings, if any, which will inure to the railroad	206
as the result of the installation, benefits to the public	207
resulting from the reduction of hazard at the crossing, the	208
probable cost of the installation, the future cost to the railroad	209
of maintaining any such device, and any other special factors and	210
conditions that the commission considers relevant. The commission	211
may accept a railroad's agreement to maintain the installation as	212
being its share of the cost for the protection. If any part of the	213
cost is assigned to the public, it shall be apportioned to the	214
state agency or political subdivision having jurisdiction over	215
such crossing, and may be paid from any funds levied and made	216
available for highway or street purposes; provided, that funds	217
from the grade crossing protection fund created by section	218
4907.472 of the Revised Code may be used to pay the public's share	219
of the cost. After the commission has issued an appropriate order	220
requiring that additional protective devices be installed by a	221
specific date, which shall be a reasonable time from the date of	222
the order, the railroad concerned shall erect or install the	223
additional protective devices or station the flagmanflagger	224
within the time prescribed by the order. If the additional	225
protective devices are not erected or installed within that time,	226
the commission may reduce or eliminate the amount of any funds in	227
the grade crossing protection fund obligated to pay the public's	228
share of the costs relating to the erection, installation, and	229
maintenance of the additional protective devices and, consistent	230
with any applicable federal requirements, may assign to the	231
railroad concerned any amount, up to one hundred per cent, of the	232
total amount of the costs of erecting, installing, and maintaining	233
the additional protective devices.	234

Any person owning or operating a railroad and neglecting or	235
refusing to erect or maintain such gate, automatic alarm bell, or	236
other mechanical device, or to maintain such flagmanflagger, when	237
required by the commission pursuant to this section or section	238
4907.471 of the Revised Code, and after the commission has issued	239
an appropriate order finding that the public funds will be made	240
available with respect to any protective device it has ordered	241
installed, shall forfeit to the state, for every such neglect or	242
refusal, one thousand dollars, and in addition, shall forfeit one	243
thousand dollars for each day such neglect or refusal continues.	244
Except as provided in sections 4905.97 to 4905.975 of the Revised	245
Code, moneys collected from forfeitures under this section shall	246
be deposited to the state treasury to the credit of the general	247
revenue fund.	248

Sec. 4907.60.  If a railroad fails to perform a duty enjoined	249
upon it by Chapter 4901., 4903., 4905., 4907., 4909., or 4959. of	250
the Revised Code, or does any act prohibited by any of those	251
chapters, for which failure or act no penalty or forfeiture has	252
been provided by law, or fails to obey a lawful requirement or	253
order made by the public utilities commission or order of any	254
court upon application of the commission, the railroad, except as	255
otherwise specifically provided in sectionsections 4905.95 and	256
4905.97 to 4905.975 of the Revised Code, shall forfeit into the	257
state treasury not less than one hundred nor more than ten	258
thousand dollars for each violation or failure. In construing and	259
enforcing this section, the act, omission, or failure of any	260
officer, agent, or other person acting for or employed by a	261
railroad, while acting within the scope of the officer's, agent's,	262
or other person's employment, is the act, omission, or failure of	263
the railroad.	264

Sec. 4921.21. (A) As used in this section, "adjusted credit	265
amount" means the aggregate amount credited to the public	266
utilities transportation safety fund, less the sum of all of the	267
following:	268

(1) The fees collected by the public utilities commission, in	269
accordance with the unified carrier registration plan under	270
section 4921.11 of the Revised Code, that exceed the federal	271
certification of revenue for each year of the plan;	272

(2) The fees collected by the commission on behalf of other	273
states under division (C) of section 4921.15 of the Revised Code;	274

(3) The forfeitures collected by the commission under section	275
4923.99 of the Revised Code for violations of rules adopted under	276
division (A)(2) of section 4923.04 of the Revised Code.	277

(B)(1) There is hereby created in the state treasury the	278
public utilities transportation safety fund. The fees collected in	279
accordance with the unified carrier registration plan under	280
section 4921.11 of the Revised Code, the fees collected under	281
section 4921.15 of the Revised Code, the taxes and fees remitted	282
under section 4921.19 of the Revised Code, the forfeitures imposed	283
under section 4923.99 of the Revised Code, except as provided in	284
division (B)(2) of this section, and the fines collected under	285
section 4163.07 of the Revised Code shall be deposited into the	286
state treasury to the credit of the public utilities	287
transportation safety fund, until the adjusted credit amount in a	288
fiscal year is equal to the total amount appropriated from the	289
fund for the fiscal year. Once this point of parity is reached,	290
any additional fees, taxes, forfeitures, or fines received during	291
the fiscal year shall be credited to the general revenue fund,	292
except as provided in division (B)(2) of this section, and except	293
for both of the following:	294

(a) The fees collected in accordance with the unified carrier	295
registration plan under section 4921.11 of the Revised Code, that	296
exceed the federal certification of revenue for each year of the	297
plan;	298

(b) The fees collected on behalf of other states under	299
division (C) of section 4921.15 of the Revised Code.	300

(2) The first eight hundred thousand dollars of forfeitures	301
collected under section 4923.99 of the Revised Code, for	302
violations of rules adopted under division (A)(2) of section	303
4923.04 of the Revised Code, during each fiscal year shall be	304
credited to the public utilities transportation safety fund. Any	305
forfeitures in excess of that amount shall be deposited into the	306
general revenue fund, except for those excess forfeitures	307
deposited as required by sections 4905.97 to 4905.975 of the	308
Revised Code. In each fiscal year, the commission shall distribute	309
moneys from these forfeitures credited to the public utilities	310
transportation safety fund for the purposes of emergency response	311
planning and the training of safety, enforcement, and emergency	312
services personnel in proper techniques for the management of	313
hazardous materials releases that occur during transportation or	314
otherwise. For these purposes, fifty per cent of all such moneys	315
credited to the public utilities transportation safety fund shall	316
be distributed to Cleveland state university, forty-five per cent	317
shall be distributed to other educational institutions, state	318
agencies, regional planning commissions, and political	319
subdivisions, and five per cent shall be retained by the	320
commission for the administration of this section and for training	321
employees. However, if, in any such period, moneys from these	322
forfeitures credited to the public utilities transportation safety	323
fund equal an amount less than four hundred thousand dollars, the	324
commission shall distribute, to the extent of the aggregate amount	325
of those moneys, two hundred thousand dollars to Cleveland state	326
university and the remainder to other educational institutions,	327
state agencies, regional planning commissions, and political	328
subdivisions.	329

(C) The purpose of the public utilities transportation safety	330
fund shall be for defraying all expenses incident to maintaining	331
the nonrailroad transportation activities of the commission.	332

(D) There is hereby created in the state treasury the federal	333
commercial vehicle transportation systems fund. The fund shall	334
consist of money received from the United States department of	335
transportation's commercial vehicle intelligent transportation	336
systems infrastructure deployment program. The public utilities	337
commission shall use the fund to deploy the Ohio commercial	338
vehicle information systems networks project and to improve safety	339
of motor carrier operations through electronic exchange of data.	340

(E) There is hereby created in the state treasury the motor	341
carrier safety fund. The fund shall consist of money received from	342
the United States department of transportation for motor carrier	343
safety. The commission shall use the fund to administer the	344
state's motor carrier safety assistance program and associated	345
grants, including the motor carrier safety assistance program	346
basic grant, the incentive grant, the high priority grants, the	347
new entrant safety assurance grant, the safety data improvement	348
grant, or their equivalents.	349

(F) If the director of budget and management determines there	350
is not sufficient money in the public utilities transportation	351
safety fund, the director shall transfer money from the general	352
revenue fund to the public utilities transportation safety fund in	353
an amount up to the difference between the balance of the public	354
utilities transportation safety fund and the appropriations from	355
that fund. If the director subsequently determines during the	356
fiscal year that the balance of the public utilities	357
transportation safety fund exceeds the amount needed to support	358
the appropriations from the fund, the director shall transfer the	359
excess money, up to the amount of the original transfer, to the	360
general revenue fund.	361

Sec. 4973.11.  No company operating a railroad over thirty	362
miles in length or an interurban railroad or street railway over	363
four miles in length shall permit a conductor, engineer, fireman	364
fire tender, brakemanbrakeperson, or trainmantrainperson on a	365
train, a telegraph operator, or a conductor or motormancar	366
operator on a street railway, who has worked as such for fifteen	367
consecutive hours, again to go on duty or perform work until he	368
the person has had at least eight hours' rest, except in cases of	369
detention of trains or cars caused by accident, unavoidable or	370
otherwise. Such companies shall so regulate the hours of	371
employment of their employees that each employee shall have at	372
least eight consecutive hours of rest in each period of	373
twenty-four hours.	374

A railroad company whichthat knowingly violates this section	375
shall forfeit not less than five hundred nor more than one	376
thousand dollars for the first offense, and for any subsequent	377
offense, not less than one thousand nor more than fifteen hundred	378
dollars, to be recovered by civil action in the name of the state.	379
Except as provided in sections 4905.97 to 4905.975 of the Revised	380
Code, forfeiture under this section shall be deposited in the	381
state treasury to the credit of the general revenue fund.	382

Section 2.  That existing sections 4905.54, 4905.57, 4905.95,	383
4907.47, 4907.60, 4921.21, and 4973.11 of the Revised Code are	384
hereby repealed.	385