Ohio Admin. Code 901:13-1-16 - Operating procedures
(A)
Operation and
management plans. The district shall approve or disapprove operation and
management plans at their regularly scheduled board meetings and shall maintain
a record of their actions as part of their meeting minutes. Approved plans
shall be signed by the chairman. Plans may also be submitted by the owner or
operator to the director for approval. District boards of supervisors may
establish such guidelines as may be needed for plan format and submission;
however, all plans shall meet the standards for agricultural pollution
abatement contained in rules 901:13-1-02 to 901:13-1-14 and 901:13-1-19 of the Administrative Code. Any portion of an operation and management plan specifying control of agricultural pollution shall allow the owner or operator to phase in installation of conservation practices under a schedule approved by the director or the director's designee until compliance with Chapter 901:13-1
of the Administrative Code is accomplished.
(1)
If the director
or the director's designee determines that any person owning or responsible for
an agricultural production operation is managing such operation in accordance
with an operation and management plan currently approved by the director or the
director's designee, the person shall be considered in compliance with the
state rules for agricultural pollution abatement. In a private civil action for
nuisances involving agricultural pollution, it is an affirmative defense if the
person owning, operating, or otherwise responsible for agricultural production
operations is operating under and in substantial compliance with an approved
operation and management plan.
(2)
In the event that
the district finds that an operation and management plan does not meet
agricultural pollution abatement standards as contained in these rules, the
district shall provide a written explanation, by certified mail listing all the
deficiencies to be corrected, to the person who submitted the plan. Any person
may appeal the district's decision to the director. Upon such appeal, the
director shall review the plan for compliance with these standards, and uphold
the district's action or reverse it. If the director reverses the district's
action the plan shall be deemed approved. In either case, the director shall
make such determination within thirty days of receiving the appeal and shall
inform the owner or operator and the district of his decision in writing. Such
notification shall include the reasons for the director's
decision.
(3)
In the event that any person operating or owning an
agricultural production operation in accordance with an approved operation and
management plan who, in good faith, is following that plan, causes agricultural
pollution, the plan shall be revised in a manner necessary to mitigate the
agricultural pollution, as determined and approved by the district
board.
(4)
In the event that the district board determines that it
lacks staff or expertise to adequately review an operation and management plan,
the district board of supervisors may submit such plan to the director for
review and approval or disapproval.
(B)
Pollution
complaints. Any person who wishes to make a complaint regarding nuisances
involving agricultural pollution may do so orally or by submitting a written
complaint to the director or the director's designee. By written agreement with
the director, the district may receive complaints and investigate them to
determine whether agricultural pollution has occurred or is imminent. The
director reserves the right to assume responsibility to investigate and resolve
any complaint. The district shall provide the director a copy of any complaint
received. The district also shall inform the department of the disposition of
the complaint and provide relevant information concerning the agricultural
production operation. The district director or his or her designee shall gather
information pertinent to the alleged violation. This information includes but
is not limited to:
(1)
The location and description of property and/or waters
of the state allegedly being damaged;
(2)
The nature and
extent of damage;
(3)
The alleged sources of pollution;
(4)
Any efforts made
to obtain voluntary cooperation to eliminate the problem.
(C)
Action initiated by the department.
(1)
When the department finds an apparent problem of
agricultural pollution through its own observation, through notification by
another agency, or through a complaint from a person, the department may
investigate the complaint and shall inform the appropriate district of:
(a)
The location and
nature of the problem;
(b)
The location and description of the agricultural
production operation alleged to be causing the pollution
problem;
(c)
The nature and extent of damage;
(d)
Any assistance
needed from the district.
(2)
When the
department investigates a complaint involving an agricultural operation that is
allegedly not in compliance with state rules for agricultural pollution
abatement, a representative of the department will contact the owner or
operator and inform them of the complaint and explain the agricultural
pollution abatement rules and standards. The department may perform an
investigation to determine whether or not there is compliance with this
chapter.
(3)
In order to determine if there is a violation of the
rules for agricultural pollution, such investigation by the department shall
include but need not be limited to the following:
(a)
Identification of
property boundaries, streams, water courses, wetlands, ponds, lakes, water
wells, the general topography, and the general storm water runoff pattern if
applicable, including roof water;
(b)
For animal manure
pollution: identification of the number and kind of animals in the feeding
operation, the size and slope of the feedlot, the method of handling animal
manure, and the overall manure management system including disposal system; for
sediment pollution: estimation of average annual rates of soil erosion based on
soil type, present land use, and cropping and management
practices;
(c)
Determination of soil types and need for additional
geologic study if applicable to determine potential ground water
pollution;
(d)
Observation and documentation of the nature and extent
of existing or potential pollution damage; documentation may include
photographs, video recording, physical measurements, onsite chemical analysis
and water, sediment or manure samples for lab analysis consistent with
appropriate sampling procedures and nutrient status of the
soil;
(e)
Determination of suitability and availability of land
for application of animal manure, crops grown on the land, tillage practices
used, and average crop yields;
(f)
Contacts with the
operator, complainant, cooperating agencies contacted, dates and times of
investigations shall be recorded and kept on file along with a copy of the
complaint. Copies of all information shall be made available to the
district.
(4)
Investigation indicating no pollution problem. If the
investigative report indicates that the operation is in compliance with the
rules for agricultural pollution abatement, the department may offer to assist
the owner or operator in preparing an operation and management plan for the
operation as it exists and have the district board or director approve it to
provide assurance that the operation is considered in compliance with the
applicable rules.
(5)
Owner, operator, or person responsible interested in
voluntary, cooperative solution. If the investigative report indicates that a
violation of the rules for agricultural pollution abatement exists and the
landowner or operator is interested and willing to seek a corrective solution,
the department shall:
(a)
Offer information and technical assistance for
developing and evaluating alternative solutions;
(b)
Provide
information on financial assistance available;
(c)
Offer to develop
an operation and management plan which complies with the rules for agricultural
pollution abatement; and
(d)
Secure district or director approval of the operation
and management plan to provide assurance that the operation is considered in
compliance with the rules for agricultural pollution abatement.
(6)
Owner, operator, or person responsible failure to cooperate in a voluntary
solution.
(a)
The department representative shall inform the district board of supervisors
and the director of the facts established by the investigative report, the
succeeding action followed to seek compliance with the rules, and the action or
inaction taken by the owner or operator. If the director decides that a
violation does exist and corrective action is needed, the director will develop
a compliance schedule and inform the person in violation by certified mail that
he has a period of time to proceed voluntarily to correct the
violation.
(b)
If the owner or operator has failed to implement the
corrective actions in the time specified, the director shall then decide if an
order shall be issued.
(D)
Action by a
district.
(1)
When a district, which has entered into an agreement with the director for the
purpose of implementing the agricultural pollution abatement program, finds
through a complaint that an agricultural production operation is allegedly not
in compliance with state rules for agricultural pollution abatement, a
representative of the district will contact the owner or operator of the
operation and explain the district role in the agricultural pollution abatement
program. Upon receipt of the complaint the district shall give priority to
conducting an investigation. If the district determines it is unable to
initiate an investigation within three business days, the department shall be
notified immediately. The director or the director's designee shall initiate an
investigation of the complaint within three business days of notification by
the district.
(2)
In order to determine if there is a violation of the
rules for agricultural pollution, such investigation shall include but need not
be limited to the following:
(a)
Identification of property boundaries, streams, water
courses, wetlands, ponds, lakes, water wells, the general topography, and the
general storm water runoff pattern if applicable, including roof
water;
(b)
For animal manure pollution: identification of the
number and kind of animals in the feeding operation, the size and slope of the
feedlot, the method of handling animal manure, and the overall manure
management scheme including disposal system; for sediment pollution: estimation
of average annual rates of soil erosion based on soil type, present land use,
and cropping and management practices;
(c)
Determination of
soil types and need for additional geologic study if applicable to determine
potential ground water pollution of aquifer;
(d)
Observations and
documentation of the nature and extent of existing or potential pollution
damage; documentation may include photographs, video recordings, physical
measurements, onsite chemical analysis and water, sediment or manure samples
for lab analysis consistent with appropriate sampling procedures and nutrient
status of the soil;
(e)
Determination of suitability and availability of land
for application of animal manure, crops grown on the land, tillage practices
used, and average crop yields;
(f)
Contacts with the
owner, operator, person responsible, complainant, cooperating agencies
contacted, dates and times of investigations shall be recorded and placed in a
cooperator file or other appropriate district file. A copy of the complaint and
other relevant information shall be placed in the same file.
(3)
Investigation indicating no pollution problem. If the investigative report
indicates that the operation is in compliance with the rules for agricultural
pollution abatement, the district representative may offer to assist the owner
or operator in preparing an operation and management plan for the operation as
it exists and have the district board approve it to provide assurance that the
operation is considered in compliance with the applicable
rules.
(4)
Owner, operator, or person responsible interested in
voluntary, cooperative solution. If the investigative report indicates that a
violation of the rules for agricultural pollution abatement exists and the
landowner or operator is interested and willing to seek a corrective solution,
the district representative shall:
(a)
Offer information and technical assistance for
developing and evaluating alternative solutions;
(b)
Provide
information on financial assistance available;
(c)
Offer to develop
an operation and management plan which complies with the rules for agricultural
pollution abatement;
(d)
Secure district approval of the operation and
management plan to provide assurance that the operation is considered in
compliance with the rules for agricultural pollution abatement;
and
(e)
Inform the owner, operator, or person responsible that
if a corrective solution is not implemented within six months of the
investigation, the district and the department will review the complaint and
determine if adequate progress has been made towards a solution. If adequate
progress is not made then the department will request that the district refer
the compliant to the department for resolution or possible further enforcement
action.
(5)
Owner, operator, or person responsible failure to
cooperate in a voluntary solution. If the investigative report indicates that a
violation of the rules for agricultural pollution exists, but the owner,
operator, or person responsible is unwilling to cooperate in correcting the
problem:
(a)
The district representative shall inform the district board of supervisors and
the department of the facts established by the investigative report, the
succeeding action followed to seek compliance with the rules, and the action or
inaction taken by the owner or operator. If the district board decides that a
violation does exist and corrective action is needed, the board will inform the
person in violation by certified mail of the period of time available, as
determined and specified by the district, for the person to proceed voluntarily
to correct the violation.
(b)
If the owner, operator or person responsible has failed
to implement the corrective actions in the time specified, the board may choose
to invite the owner, operator, or person responsible by certified mail to the
next regularly scheduled board meeting or file a copy of their findings with
the department and a copy to the alleged violator and to the complainant if
appropriate, and request the director to issue an order. These findings
include:
(i)
The investigative report by the district representative;
(ii)
Any pertinent
testimony by the person in violation;
(iii)
A copy of the
district's decision as recorded;
(iv)
Alternative
methods for correcting the violation;
(v)
Practices needed
and cost-share eligibility;
(vi)
A timely
sequence for application of corrective measures; and
(vii)
A time period
(specified by the district) for completion of all corrective and control
measures.
Replaces: 1501:15-5-15
Notes
Promulgated Under: 119.03
Statutory Authority: 939.02
Rule Amplifies: 939.02
Prior Effective Dates: 11/1/79, 5/1/89, 5/7/92, 11/15/94, 6/1/00, 12/23/2010
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