Ohio Admin. Code 901:13-1-17 - Director's orders
(A)
Issuing orders.
When the director or the director's designee investigates a complaint and the
owner, operator, or person responsible fails to implement a corrective action
in accordance with paragraph (C)(6) or (D)(5) of rule 901:13-1-16 of the Administrative Code, the director or the director's designee shall
decide if an order will be issued. The director, or the director's designee,
may, upon obtaining agreement with the owner, operator, or person responsible
for any land, public or private, enter thereon to make inspections to determine
whether or not there is compliance with these rules. If agreement is not
obtained, and there is reason to believe a violation exists, the director or
the director's designee may apply for and a judge of the court of common pleas
for the county where the land is located may issue an appropriate inspection
warrant as necessary to achieve the purposes of this chapter.
(1)
When the director
decides that an order shall be issued, he shall issue an order and afford each
person allegedly liable an adjudication hearing pursuant to Chapter 119. of the
Revised Code. The director shall sustain the order if deemed appropriate after
each person allegedly liable has had a hearing or has waived his right to a
hearing. Each order shall be issued in writing and contain a finding by the
director of the facts upon which the order is based and the rule that is being
violated. The order shall also specify the time period for correcting the
problem, indicate what, if any, technical and financial assistance is
available, and indicate what action will follow if the violation is not
corrected.
(2)
Penalties. Any person who fails to comply with an order
of the director is guilty of a misdemeanor of the first degree. Each day of
violation is a separate offense. In addition, the sentencing court may assess
damages in an amount equal to the costs of reclaiming, restoring, or otherwise
repairing any damage to public or private property caused by a violation of the
director's order.
(3)
Appeals. Any person claiming to be deprived of a right
or protection afforded him by law by an order of the director, except an order
which adopts a rule, may appeal to the court of common pleas of franklin
county. The attorney general of the state of Ohio, upon the written request of
the director, shall bring appropriate legal action in Franklin county against
any person who fails to comply with an order of the director issued pursuant to
paragraph (A)(1) of this rule.
(B)
Danger to public
health.
(1)
In
addition to the above action, the director may apply to the court of common
pleas in the county where a violation of a standard occurs which is a danger to
public health for an order to cease the violation and to remove the
agricultural pollutant. The director may consult with the county or state
health department, soil and water conservation district and engineer's office,
the Ohio environmental protection agency or other appropriate agency. A danger
to public health may include, but not necessarily be limited to the following
situations:
(a)
When agricultural pollution threatens public or private
drinking water supplies;
(b)
When agricultural pollution threatens a primary contact
recreation resource water;
(c)
When the
agricultural pollution directly causes flooding of residential housing,
commercial or industrial property, such that direct use of the property would
be hazardous to public health.
(d)
Other situations
as determined by the director upon consultation with state and/or local
environmental protection or health agencies.
(2)
When there is a
danger to public health because of animal waste spill or discharge, the
director may, without notice or hearing, issue an emergency order to correct
the problem. The order shall be effective immediately.
(a)
Prior to issuing
an emergency order, the director shall:
(i)
Determine the
extent of danger to public health which may include consultation with local
health departments;
(ii)
Determine that paragraphs (A) and (B) of this rule will
not adequately protect public health and natural resources;
(iii)
Encourage the
owner or operator causing the pollution to correct the problem
voluntarily.
(b)
Following receipt of the emergency order, the owner or
operator shall comply with the order by stopping the pollution and removing the
pollutants endangering public health.
(c)
The owner or
operator may apply to the director for a hearing. Such hearing shall be
conducted as soon as possible, but not later than twenty days following
application. The application shall be in writing and include the following
information:
(i)
The probable cause of the suspected public health
threat;
(ii)
The date when the suspected pollution
started;
(iii)
Business or home address and phone number where the
owner, operator or representative can be reached during business hours to
schedule a hearing;
(iv)
Be signed by the owner or operator of the agricultural
operation or business and dated.
(d)
On the basis of
the hearing, the director or his designee shall continue, revoke or modify the
order. If no hearing is requested and/or the order is not complied with as
determined by the director, the director or his designee may enter upon private
or public lands and take action to mitigate, minimize, remove, or abate the
release, spill or discharge.
(e)
Any owner,
operator or person responsible for causing or allowing an unauthorized release,
spill or discharge of animal waste is liable to the director for any costs
incurred by the department in investigating, mitigating, minimizing, removing
or abating the pollution problem. Reimbursed costs shall be deposited into the
agricultural pollution abatement fund and used as specified in paragraph (C) of
this rule. The director shall keep accurate records of all costs to abate the
agricultural pollution including personnel, equipment, and
disposal.
(f)
No emergency order shall remain in effect for more than
sixty days after its issuance.
(C)
Agricultural
pollution abatement fund. Funds deposited in the agricultural pollution
abatement fund authorized under section
939.10
of the Revised Code shall be used for paying the costs for emergency
agricultural pollution abatement actions. The director may make disbursements
from the fund for any costs incurred by the department in investigating,
mitigating, minimizing, removing or abating the release, spill or discharge.
Money collected by the department for agricultural pollution investigations,
hearings, damage, repair, cleanup, mitigation and inspection are to be
deposited into the agricultural pollution abatement fund. Payments by persons
so ordered by the director or court are to be made within thirty days of the
order to the department. If no attempt is made to repay the department for
costs incurred or damages assessed within thirty days, the director may request
the attorney general to bring a civil suit against the person responsible to
recover costs of the department and any assessed damages.
Replaces: 1501:15-5-16
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, 12/23/2010
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