901:13-1-17 Director's orders.

 

 

 

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

Effective:                                                             04/01/2016

Five Year Review (FYR) Dates:                         12/31/2017

CERTIFIED ELECTRONICALLY
Certification
03/22/2016
Date
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