Ohio Code 903.17 – Adjudicative hearing on corrective actions and civil penalties [see Section 3 of H.B. 363 of the 128th General Assembly]
(A) The director of agriculture may propose to require corrective actions and assess a civil penalty against an owner or operator of an animal feeding operation if the director or the director’s authorized representative determines that the owner or operator is not in compliance with section 903.08 of the Revised Code, the terms and conditions of a NPDES permit, the NPDES provisions of a permit to operate, or rules adopted under division (E) of section 903.10 of the Revised Code. However, the director may impose a civil penalty only if all of the following occur:
Terms Used In Ohio Code 903.17
- agriculture: includes farming; ranching; aquaculture; algaculture meaning the farming of algae; apiculture and related apicultural activities, production of honey, beeswax, honeycomb, and other related products; horticulture; viticulture, winemaking, and related activities; animal husbandry, including, but not limited to, the care and raising of livestock, equine, and fur-bearing animals; poultry husbandry and the production of poultry and poultry products; dairy production; the production of field crops, tobacco, fruits, vegetables, nursery stock, ornamental shrubs, ornamental trees, flowers, sod, or mushrooms; timber; pasturage; any combination of the foregoing; the processing, drying, storage, and marketing of agricultural products when those activities are conducted in conjunction with, but are secondary to, such husbandry or production; and any additions or modifications to the foregoing made by the director of agriculture by rule adopted in accordance with Chapter 119 of the Revised Code. See Ohio Code 1.61
- Federal Water Pollution Control Act: means the "Federal Water Pollution Control Act Amendments of 1972" 86 Stat. See Ohio Code 903.01
- in writing: includes any representation of words, letters, symbols, or figures; this provision does not affect any law relating to signatures. See Ohio Code 1.59
- Injunction: An order of the court prohibiting (or compelling) the performance of a specific act to prevent irreparable damage or injury.
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- NPDES permit: includes the federally enforceable provisions of a permit to operate into which NPDES permit provisions have been incorporated. See Ohio Code 903.01
- Permit: includes an initial, renewed, or modified permit to install, permit to operate, NPDES permit, and installation permit unless expressly stated otherwise. See Ohio Code 903.01
- Permit to operate: means a permit issued or renewed under section 903. See Ohio Code 903.01
- Person: includes an individual, corporation, business trust, estate, trust, partnership, and association. See Ohio Code 1.59
- state: means the state of Ohio. See Ohio Code 1.59
(1) The owner or operator is notified in writing of the deficiencies resulting in noncompliance, the actions that the owner or operator must take to correct the deficiencies, and the time period within which the owner or operator must correct the deficiencies and attain compliance.
(2) After the time period specified in the notice has elapsed, the director or the director’s duly authorized representative has inspected the animal feeding operation, determined that the owner or operator is still not in compliance, and issued a notice of violation to require corrective actions.
(3) The director affords the owner or operator an opportunity for an adjudication hearing under Chapter 119 of the Revised Code to challenge the director’s determination that the owner or operator is not in compliance or the imposition of the civil penalty, or both. However, the owner or operator may waive the right to an adjudication hearing.
(B) If the opportunity for an adjudication hearing is waived or if, after an adjudication hearing, the director determines that a violation has occurred or is occurring, the director may issue an order and assess a civil penalty of not more than ten thousand dollars per violation against the violator. For purposes of determining the civil penalty, each day that a violation continues constitutes a separate and distinct violation. The order and the assessment of the civil penalty may be appealed in accordance with section 119.12 of the Revised Code.
(C) To the extent consistent with the Federal Water Pollution Control Act, the director shall consider technical feasibility and economic costs in issuing orders under this section.
(D)(1) The attorney general, upon the written request of the director, shall bring an action for an injunction in any court of competent jurisdiction against any person violating or threatening to violate section 903.08 of the Revised Code, the terms and conditions of a NPDES permit, the NPDES provisions of a permit to operate, rules adopted under division (E) of section 903.10 of the Revised Code, or an order issued under division (B) of this section.
(2) In lieu of seeking civil penalties under division (A) of this section, the director may request, in writing, the attorney general to bring an action for a civil penalty of not more than ten thousand dollars per violation in a court of competent jurisdiction against any person that has violated or is violating section 903.08 of the Revised Code, the terms and conditions of a NPDES permit, the NPDES provisions of a permit to operate, rules adopted under division (E) of section 903.10 of the Revised Code, or an order issued under division (B) of this section. For purposes of determining the civil penalty to be assessed under division (B) of this section, each day that a violation continues constitutes a separate and distinct violation.
(E) In addition to any other penalties imposed under this section, the director may impose an administrative penalty against an owner or operator of an animal feeding operation if the director or the director’s authorized representative determines that the owner or operator has discharged pollutants into waters of the state in violation of section 903.08 of the Revised Code or the terms and conditions of a NPDES permit or the NPDES provisions of the permit to operate issued for the operation. The administrative penalty shall not exceed five thousand dollars.
The director shall afford the owner or operator an opportunity for an adjudication hearing under Chapter 119 of the Revised Code to challenge the director’s determination under this division, the director’s imposition of an administrative penalty under this division, or both. The director’s determination and the imposition of the administrative penalty may be appealed in accordance with section 119.12 of the Revised Code.
Last updated January 19, 2022 at 1:10 PM