Chapter 1501:13-14 Enforcement

1501:13-14-01 Inspections.

(A) For purposes of this rule:

(1) "Chief" shall mean the chief, his or her authorized representative, or any inspection officer.

(2) "Inactive coal mining and reclamation operation" means an operation:

(a) For which the chief has secured from the permittee the written notice required under paragraph (A) of rule 1501:13-9-16 of the Administrative Code; or

(b) Conducted under a D-permit, for which reclamation phase II as defined in paragraph (B)(1)(b) of rule 1501:13-7-05 or paragraph (B)(1)(b) of rule 1501:13-7-05.1 of the Administrative Code has been completed.

(3) "Abandoned coal mining and reclamation operation" means an operation where the chief has found in writing that:

(a) All surface and underground coal mining and reclamation activities at the site have ceased;

(b) The chief has issued at least one notice of violation, and either:

(i) Is unable to serve the notice despite diligent efforts to do so; or

(ii) The notice was served and has progressed to a failure-to-abate cessation order;

(c) The chief:

(i) Is taking action to ensure that the permittee and operator, and owners and controllers of the permittee and operator, will be precluded from receiving future permits while violations continue at the site; and

(ii) Is taking action pursuant to rules 1501:13-14-02 and 1501:13-14-06 of the Administrative Code, or section 1513.02 , 1513.15 , 1513.40 , or 1513.99 of the Revised Code to ensure that abatement occurs or that there will not be a recurrence of the failure-to-abate, except where after evaluating the circumstances, the chief concludes that further enforcement offers little or no likelihood of successfully compelling abatement or recovering any reclamation costs; and

(d) Where the site is, or was, permitted and performance security was provided:

(i) The permit has either expired or been revoked; and

(ii) The chief initiated and is diligently pursuing forfeiture of, or has forfeited, any available performance security.

(4) "Active coal mining and reclamation operation" means an operation other than an inactive or abandoned coal mining and reclamation operation.

(B) The chief shall have a right of entry to, upon, or through any coal mining and reclamation operations, coal exploration operations, any premises in which any records required to be maintained are located and any area of land upon which the chief has reason to believe that coal mining and reclamation operations are being conducted.

(C) The chief shall conduct an average of at least one partial inspection per month of each active coal mining and reclamation operation under his or her jurisdiction, and shall conduct such partial inspections of each inactive coal mining and reclamation operation under his or her jurisdiction as are necessary to ensure effective enforcement. A "partial inspection" is an on-site or aerial review of a person's compliance with some of the permit conditions and requirements imposed under Chapter 1513. of the Revised Code and these rules.

(1) If the chief or his or her authorized representative conducts an aerial inspection, the aerial inspection shall be conducted in a manner which reasonably ensures the identification and documentation of conditions at each coal mining and reclamation site inspected.

(2) Any potential violation observed during an aerial inspection shall be investigated on site within three calendar days after the aerial inspection, provided that any indication of a condition, practice or violation constituting cause for issuance of a cessation order under division (D)(1) of section 1513.02 of the Revised Code shall be investigated on site immediately, and provided further that an on-site investigation of a potential violation observed during an aerial inspection shall not be considered to be an additional partial or complete inspection for the purposes of paragraph (C) or (D) of this rule.

(D) The chief shall conduct an average of at least one complete inspection per calendar quarter of each active and inactive coal mining and reclamation operation under his or her jurisdiction. A "complete inspection" is an on-site review of a person's compliance with all permit conditions and requirements imposed under Chapter 1513. of the Revised Code and these rules.

(E) In lieu of the inspection frequency established in paragraphs (C) and (D) of this rule, the chief shall inspect each abandoned site on a set frequency commensurate with the public health and safety and environmental considerations present at each specific site, but in no case shall the inspection frequency be set at less than one complete inspection per calendar year.

(1) In selecting an alternate inspection frequency authorized under paragraph (E) of this rule, the chief shall first conduct a complete inspection of the abandoned site and provide public notice under paragraph (E)(2) of this rule. Following the inspection and public notice, the chief shall prepare and maintain for public review a written finding justifying the alternative inspection frequency selected. This written finding shall justify the new inspection frequency by affirmatively addressing in detail all of the following criteria:

(a) How the site meets each of the criteria under the definition of an abandoned site under paragraph (A)(3) of this rule and thereby qualifies for a reduction in inspection frequency;

(b) Whether, and to what extent, there exist on the site impoundments, earthen structures, or other conditions that pose, or may reasonably be expected to pose imminent dangers to the health or safety of the public or significant environmental harms to land, air, or water resources;

(c) The extent to which existing impoundments or earthen structures were constructed and certified in accordance with prudent engineering designs approved in the permit;

(d) The degree to which erosion and sediment control is present and functioning;

(e) The extent to which the site is located near or above urbanized areas, communities, occupied dwellings, schools, and other public or commercial buildings and facilities;

(f) The extent of reclamation completed prior to abandonment and the degree of stability of unreclaimed areas, taking into consideration the physical characteristics of the land mined and the extent of settlement or revegetation that has occurred naturally with time; and

(g) Based on a review of the complete and partial inspection report record for the site during at least the last two consecutive years, the rate at which adverse environmental or public health and safety conditions have and can be expected to progressively deteriorate.

(2) The public notice and opportunity to comment required under paragraph (E)(1) of this rule shall be provided as follows:

(a) The chief shall place a notice in the newspaper with the broadest circulation in the locality of the abandoned site providing the public with a thirty-day period in which to submit written comments; and

(b) The public notice shall contain the permittee's name, the permit number, the precise location of the land affected, the inspection frequency proposed, the general reasons for reducing the inspection frequency, the performance security status of the permit, the telephone number and address where written comments on the reduced inspection frequency may be submitted, and the closing date of the comment period.

(F) The chief shall conduct such inspections of all coal exploration operations as are necessary to ensure compliance with Chapter 1513. of the Revised Code and rules adopted thereunder.

(G) Except as provided in paragraph (M) of this rule, the inspections required under paragraphs (C), (D), (E), and (F) of this rule shall:

(1) Occur without advance notice or search warrant and upon presentation of appropriate credentials;

(2) Be carried out on an irregular basis, so as to monitor compliance at all operations, including those which operate nights, holidays, and weekends;

(3) Occur without prior notice to the permittee or operator being inspected or any agent or employee of such permittee or operator, except for necessary on-site meetings;

(4) Include the prompt filing of inspection reports or other documents adequate to enforce the requirements of and to carry out the terms and purposes of Chapter 1513. of the Revised Code and rules adopted thereunder;

(5) Include the collection of evidence with respect to every violation; and

(6) Allow for inspection of any monitoring equipment or method of exploration or operation and allow access to and acquisition of copies of any records required to be maintained under Chapter 1513. of the Revised Code and rules adopted thereunder.

(H) Citizen's request for inspection.

(1) A citizen may request an inspection by furnishing to the chief a signed, written statement (or an oral report followed by a signed, written statement) giving:

(a) The reason for believing that a violation exists; and

(b) A phone number and address where the citizen can be contacted.

(2) The identity of any person supplying the information to the chief in a request for an inspection shall remain confidential, if requested by the person, unless the person elects to accompany the inspector on the inspection or unless disclosure is required under the state's freedom of information laws.

(3) If an inspection is to be conducted as a result of information provided by the citizen, the citizen shall be notified as far in advance as is practicable when the inspection is to occur and shall be allowed to accompany the inspector. The citizen shall be in the presence of and under control, direction, and supervision of the inspector during the inspection. The citizen does not have the right to enter buildings without consent of the permittee or without a search order.

(4) Within ten days of the inspection or, if there is no inspection, within fifteen days of receipt of the citizen's written statement, the chief or his or her representative shall send the citizen and the permittee the following:

(a) If an inspection was made, a description of the enforcement action taken or an explanation of why no enforcement action was taken;

(b) If no inspection was conducted, an explanation of the reason why; and

(c) An explanation of the citizen's right to informal review of the action of the chief.

(5) The chief shall give copies of all materials in paragraphs (H)(4)(a) and (H)(4)(b) of this rule within the time limits specified in those paragraphs to the person, permittee, or operator alleged to be in violation, except that the name of the citizen shall be removed unless disclosure of the citizen's identity is permitted under paragraph (H)(2) of this rule.

(I) Inspection of operations where coal is extracted incidental to the extraction of other minerals.

(1) Authorized representatives of the chief and of the U.S. secretary of the interior shall have the right to conduct inspections of operations claiming the exemption from the requirements of Chapter 1513. of the Revised Code in accordance with rule 1501:13-4-16 of the Administrative Code.

(2) Each authorized representative of the chief or of the U.S. secretary of the interior conducting an inspection under paragraph (I)(1) of this rule:

(a) Shall have a right of entry to, upon, and through any mining and reclamation operations without advance notice or a search warrant, upon presentation of appropriate credentials;

(b) May, at reasonable times and without delay, have access to and copy any records relevant to the exemption; and

(c) Shall have a right to gather physical and photographic evidence to document conditions, practices, or violations at a site.

(3) No search warrant shall be required with respect to any activity under paragraphs (I)(1) and (I)(2) of this rule, except that a search warrant may be required for entry into a building.

(J) Informal review.

(1) Any person who is or may be adversely affected by a coal mining and reclamation operation may request, in writing, the chief to review informally an authorized representative's or inspection officer's decision not to inspect or take appropriate enforcement alleged by that person in a request for inspection under paragraph (H) of this rule. The request for review shall include a statement of how the person is or may be adversely affected and why the decision merits review.

(2) The chief shall conduct the review and inform the person, in writing, of the results of the review within thirty days of receipt of the request. The person alleged to be in violation shall also be given a copy of the results of the review, except that the name of the person who is or may be adversely affected shall not be disclosed unless confidentiality has been waived or disclosure is required under the state's freedom of information laws.

(3) Informal review under this rule shall not affect any right to formal review or to a citizen's suit under Chapter 1513. of the Revised Code and rules adopted thereunder.

(K) Any person who is or may be adversely affected by coal exploration or a coal mining and reclamation operation may notify the chief, in writing, of any alleged failure to make adequate and complete or periodic inspections as provided in paragraphs (C), (D), (E), and (F) of this rule.

(1) The notification shall include sufficient information to create a reasonable belief that this rule is not being complied with and to demonstrate that the person is or may be adversely affected.

(2) The chief shall, within fifteen days of receipt of the notification, determine whether this rule is being complied with, and if not, shall immediately order an inspection.

(3) The chief shall furnish the complainant with a written finding, stating his or her determination and actions.

(L) The permittee or operator may accompany the chief during any inspection.

(M) Compliance review.

(1) A permittee may request an on-site compliance review with the chief or his or her authorized representative to review the compliance status of any condition or practice proposed at any coal exploration or coal mining and reclamation operation. Any such review shall not constitute an inspection within the meaning of division (C)(1) of section 1513.09 of the Revised Code or paragraph (C), (D), (E), or (F) of this rule.

(2) The chief or his or her authorized representative may accept or refuse any request to conduct a compliance review under paragraph (M)(1) of this rule.

(3) The chief or his or her authorized representative shall, at any compliance review, review the proposed conditions and practices in order to advise whether any such condition or practice may become a violation of any requirement under Chapter 1513. of the Revised Code, these rules, or the permit.

(4) Neither the holding of a compliance review under this rule nor any opinion given by the chief or his or her authorized representative at such review shall affect:

(a) Any rights or obligations of the state or the permittee with respect to any inspection, notice of violation or cessation order, whether prior or subsequent to such compliance review; or

(b) The validity of any notice of violation or cessation order issued with respect to any condition or practice reviewed at the compliance review.

Effective: 04/30/2009
R.C. 119.032 review dates: 02/06/2009 and 04/20/2014
Promulgated Under: 119.03
Statutory Authority: 1513.02
Rule Amplifies: 1513.02 , 1513.03 , 1513.09 , 1513.15 , 1513.40 , 1513.41 , 1513.99
Prior Effective Dates: 8-16-82 (Emer.), 10-27-82, 7-2-85 (Emer.), 10-3-85, 10-1-88, 1-1-93, 11-27-95, 12-19-96

1501:13-14-02 Enforcement.

(A) Cessation orders.

(1) Imminent danger; significant harm.

(a) An authorized representative of the chief shall immediately order a cessation of coal mining and reclamation operations or of the relevant portion thereof, if he or she finds on the basis of any inspection, any condition or practice, or any violation of Chapter 1513. of the Revised Code or rules adopted thereunder, or any condition of a coal exploration approval or permit or a coal mining and reclamation permit, which:

(i) Creates an imminent danger to the health or safety of the public; or

(ii) Is causing or can reasonably be expected to cause significant, imminent environmental harm to land, air or water resources.

(b) If the cessation ordered under paragraph (A)(1)(a) of this rule will not completely abate the imminent danger or harm in the most expeditious manner physically possible, the authorized representative of the chief shall impose affirmative obligations on the person to whom it is issued to abate the condition, practice or violation. The order shall specify the time by which abatement shall be accomplished.

(2) Coal mining operations conducted by any person without a valid permit issued pursuant to these rules constitute a condition or practice which causes or can reasonably be expected to cause significant imminent environmental harm to land, air or water resources, unless such operations are an integral, uninterrupted extension of previously permitted operations, and the person conducting such operations has filed a timely and complete application for a permit to conduct such operations.

(3) Failure to abate violation.

(a) An authorized representative of the chief shall immediately order the cessation of coal exploration or coal mining and reclamation operations, or of the relevant portion thereof, when a notice of violation has been issued under paragraph (B) of this rule and the person to whom it was issued fails to abate the violation within the abatement period fixed or subsequently extended by the authorized representative.

(b) A cessation order issued under paragraph (A)(3) of this rule shall require the person to whom it is issued to take all steps the authorized representative of the chief deems necessary to abate the violations covered by the order in the most expeditious manner physically possible.

(c) Whenever a permittee fails to abate a violation contained in a notice of violation or cessation order within the abatement period set in the notice or order or as subsequently extended, the chief shall review the permittee's history of violations to determine whether a pattern of violations exists pursuant to this rule, and shall issue an order to show cause as appropriate pursuant to paragraph (C) of this rule.

(4) A cessation order issued under paragraph (A)(1) or (A)(3) of this rule shall be in writing, signed by the authorized representative who issues it, and shall set forth with reasonable specificity:

(a) The nature of the condition, practice, or violation;

(b) The remedial action or affirmative obligation required, if any, including interim steps, if appropriate;

(c) The time established for abatement, if appropriate, including the time for meeting any interim steps; and

(d) A reasonable description of the portion of the coal exploration or coal mining and reclamation operation to which it applies. The order shall remain in effect until the condition, practice or violation has been abated or until the order is vacated, modified or terminated in writing by an authorized representative of the chief.

(5) Reclamation operations and other activities intended to protect public health and safety and the environment shall continue during the period of any order unless otherwise provided in the order.

(6) An authorized representative of the chief may modify, terminate or vacate a cessation order for good cause, and may extend the time for abatement if the failure to abate within the time previously set was not caused by lack of diligence on the part of the person to whom it was issued.

(7) An authorized representative of the chief shall terminate a cessation order, by written notice to the person to whom the order was issued, when he or she determines that all conditions, practices, or violations listed in the order have been abated. Termination shall not affect the right of the chief to assess civil penalties for those violations under rule 1501:13-14-03 of the Administrative Code.

(8) Within thirty days after a cessation order is issued, the permittee shall submit to the chief the information required pursuant to paragraph (G)(5) of rule 1501:13-5-01 of the Administrative Code. Within sixty days after issuing a cessation order, the chief shall notify in writing any person who has been identified under paragraph (B)(5) or (B)(7) of rule 1501:13-4-03 or paragraph (G)(5) of rule 1501:13-5-01 of the Administrative Code as owning or controlling the permittee that the cessation order was issued and that the person has been identified as an owner or controller.

(9) If performance security was provided together with reliance on the reclamation forfeiture fund in accordance with paragraph (C)(2) of rule 1501:13-7-01 of the Administrative Code and the chief has issued a cessation order under paragraph (A)(3) of this rule for failure to abate a violation of the contemporaneous reclamation requirement under rule 1501:13-9-13 of the Administrative Code, the chief may require the permittee to increase the amount of performance security for the permit from twenty-five hundred dollars per acre of land to five thousand dollars per acre of land.

(a) If the cessation order is for failure to abate a violation of the contemporaneous reclamation requirement for backfilling and/or grading and permittee has not abated the violation within thirty days of the issuance of the cessation order, the chief may, in writing, order the permittee to increase, within ten days, the amount of performance security to five thousand dollars per acre of land.

(b) If the cessation order is for failure to abate a violation of the contemporaneous reclamation requirement for any reason other than backfilling and/or grading and permittee has not abated the violation within thirty days of the issuance of the cessation order, the chief may determine the amount of performance security increase and may, in writing, order the permittee to increase, within ten days, performance security by the amount specified in the order, not to exceed a total of five thousand dollars per acre of land.

(c) If the chief orders the permittee to increase the amount of performance security under paragraph (A)(9)(a) or (A)(9)(b) of this rule, the chief shall also order the permittee to show cause why the permittee has the ability to comply with the requirements of Chapter 1513. of the Revised Code in accordance with paragraph (B) of rule 1501:13-7-06 of the Administrative Code.

(d) If the chief orders the permittee to increase the amount of performance security under paragraph (A)(9)(a) or (A)(9)(b) of this rule, the increased performance security shall remain in effect for the permit, including all future acreage of the permit, until the chief determines that the amount of performance security may be reduced. When the permittee abates the violation contained in the cessation order that resulted in the increase in performance security, the permittee may request the chief, in writing, to reduce the amount of performance security per acre. The chief shall determine, in writing, whether or not the performance security may be reduced and the amount of performance security reduction, if any, based on the overall site conditions of the permit, the success of the reclamation performed, the permittee's compliance with other enforcement actions, and the outcome of the show cause hearing held pursuant to paragraph (B) of rule 1501:13-7-06 of the Administrative Code or of any show cause hearing requested under paragraph (C) of this rule.

(e) A reduction in the amount of performance security under paragraph (A)(9)(d) of this rule shall not be considered release of performance security and is not subject to division (F) of section 1513.16 of the Revised Code.

(B) Notices of violation.

(1) An authorized representative of the chief shall issue a notice of violation, if, on the basis of an inspection, he or she finds a violation of Chapter 1513. of the Revised Code or rules adopted thereunder or any condition of a permit or an exploration permit, which does not create an imminent danger or harm for which a cessation order must be issued under paragraph (A) of this rule.

(2) A notice of violation issued under this rule shall be in writing, signed by the authorized representative of the chief who issued it, and shall set forth with reasonable specificity:

(a) The nature of the violation;

(b) The remedial action required, which may include interim steps;

(c) A reasonable time for abatement, which may include time for accomplishment of interim steps; and

(d) A reasonable description of the portion of the coal exploration or coal mining and reclamation operation to which it applies.

(3) An authorized representative of the chief may extend the time set for the abatement or for accomplishment of an interim step, if the failure to meet the time previously set was not caused by lack of diligence on the part of the person to whom it was issued. The total time for abatement under a notice of violation, including all extensions, shall not exceed ninety days from the date of issuance, except upon a showing by the permittee that it is not feasible to abate the violation within ninety calendar days due to one or more of the circumstances listed in paragraph (B)(3) of this rule. An extended abatement date pursuant to this rule shall not be granted when the permittee's failure to abate within ninety days has been caused by lack of diligence or intentional delay by the permittee in completing the remedial action required. Circumstances which may qualify a coal mining operation for an abatement period of more than ninety days are:

(a) When a permittee has applied in a timely manner for, and diligently pursued, a permit renewal or other necessary approval of designs or plans but such renewal or approval has not been issued within ninety days after the permittee's valid permit expires for reasons not within the control of the permittee;

(b) When there is a valid judicial order precluding abatement within ninety days as to which the permittee has diligently pursued all rights of appeal and as to which he or she has no other effective legal remedy;

(c) When the permittee cannot abate within ninety days due to a labor strike;

(d) When climatic conditions preclude abatement within ninety days or when, due to climatic conditions, abatement within ninety days clearly would cause more environmental harm than it would prevent; or

(e) When abatement within ninety days requires action that would violate safety standards established by statute or regulation under the Mine Safety and Health Act of 1977, 30 U.S.C. 801 to 30 U.S.C. 965 , as amended.

(4) Whenever an abatement time in excess of ninety days is granted, interim abatement measures shall be imposed to the extent necessary to minimize harm to the public or the environment.

(5) If any of the conditions in paragraph (B)(3) of this rule exist, the permittee may request the authorized representative to grant an abatement period exceeding ninety days. The authorized representative shall not grant or deny such an abatement period without the concurrence of the chief and the abatement period granted shall not exceed the shortest possible time necessary to abate the violation. The permittee shall have the burden of establishing by clear and convincing proof that he or she is entitled to an extension under the provisions of paragraph (B)(3) of this rule. In determining whether or not to grant an abatement period exceeding ninety days, the authorized representative may consider any relevant written or oral information from the permittee or any other source. The authorized representative shall promptly and fully document in the file his or her reasons for granting or denying the request. The authorized representative's immediate supervisor shall review this document before concurring in or disapproving the extended abatement date and shall promptly and fully document the reasons for his or her concurrence or disapproval in the file.

(6) Any determination made under paragraph (B)(5) of this rule shall be in writing and shall contain a right of appeal to the reclamation commission.

(7) No extension granted under paragraph (B)(5) of this rule may exceed ninety days in length. If the condition or circumstance which prevented abatement within ninety days exists at the expiration of any such extension, the permittee may request a further extension in accordance with the procedures of paragraph (B)(5) of this rule.

(8) If the person to whom the notice was issued fails to meet any time set for abatement or for accomplishment of an interim step, the authorized representative shall issue a cessation order under paragraph (A) of this rule.

(9) An authorized representative of the chief shall terminate a notice of violation by written notice to the person to whom it was issued, when he or she determines that all violations listed in the notice of violation have been abated. Termination shall not affect the right of the chief to assess civil penalties for those violations under rule 1501:13-14-03 of the Administrative Code.

(C) Show cause orders.

(1) If the chief determines that, for any permit, there exists or has existed a pattern of violations of any requirements of Chapter 1513. of the Revised Code, these rules, or any permit condition, and that the violations were caused by the permittee willfully or through unwarranted failure to comply with those requirements or conditions, then the chief shall issue an order to the permittee requiring him or her to show cause why his or her permit and right to mine should not be suspended or revoked. Violations by any person conducting coal mining operations on behalf of the permittee shall be attributed to the permittee, unless the permittee establishes that they were acts of deliberate sabotage.

(2) The chief shall determine that a pattern of violations exists, if he or she finds that there were violations of the same or related requirements of Chapter 1513. of the Revised Code, these rules, or the permit during three or more inspections of the permit area within any twelve-month period.

(3) The chief may determine that a pattern of violations exists or has existed, based on two or more inspections of the permit area within any twelve-month period, after considering the circumstances, including:

(a) The number of violations, cited on more than one occasion, of the same or related requirements of Chapter 1513. of the Revised Code, these rules, or the permit;

(b) The number of violations, cited on more than one occasion, of different requirements of Chapter 1513. of the Revised Code, these rules, or the permit; and

(c) The extent to which the violations were isolated departures from lawful conduct.

(4) A show cause order shall set forth in the order itself or in attachments to the order:

(a) A list of the unwarranted or willful violations which contribute to a pattern of violations;

(b) A copy of each order or notice which contains one or more of the violations listed as contributing to a pattern of violations;

(c) A brief statement indicating the basis for determining that the violations were caused by the permittee willfully or through unwarranted failure to comply;

(d) The chief's intent to either revoke or suspend the permit, including the length and terms of a suspension; and

(e) A statement advising the permittee that if he or she wishes a show cause hearing, he or she must, within thirty days from receipt of the show cause order, file and answer to the show cause order and request a hearing.

(5) The permittee's answer to a show cause order shall contain a statement setting forth:

(a) The reasons in detail why a pattern of violations does not exist or has not existed including all the reasons for contesting:

(i) The fact of any of the violations alleged by the chief as constituting a pattern of violations;

(ii) The willfulness of such violations; or

(iii) Whether such violations were caused by the unwarranted failure of the permittee;

(b) All mitigating factors the permittee believes exist in determining the terms of the revocation or the length of terms of the suspension; and

(c) Any other alleged relevant facts.

(6) If the permittee files an answer to the show cause order and requests a show cause hearing, the chief shall give thirty days written notice of the date, time and place of the hearing to all interested parties. The chief shall publish notice of the hearing, if practicable, in a newspaper of general circulation in the area of the coal mining and reclamation operations, and shall post it at the division of mineral resources management district office closest to the coal mining and reclamation operations.

(7) If the permittee files an answer and requests a hearing, the chief or his or her representative shall hold a show cause hearing, which shall be a public adjudicatory hearing of record. The permittee issued the order to show cause shall appear at the hearing. The chief or his or her representative may accept oral or written statements and any other relevant information. An electronic or stenographic record shall be made of the hearing. The record shall be maintained and shall be accessible to the parties of the hearing until final release of the permittee's performance security required by Chapter 1513. of the Revised Code and rules adopted thereunder.

(8) In a show cause hearing, the chief shall have the burden of going forward to establish a prima facie case for suspension or revocation of the permit. The ultimate burden of persuasion that the permit should not be suspended or revoked shall rest with the permittee.

(9) Within sixty days following the show cause hearing:

(a) The chief shall issue a written determination as to whether a pattern of violations exists and, if appropriate, an order for the suspension or revocation of the permit.

(i) In making a determination that a pattern of violations exists, the chief need not find that all the violations listed in the show cause order occurred, but only that sufficient violations occurred to establish a pattern;

(ii) If the permit is suspended, the minimum suspension period shall be three working days unless the chief finds that imposition of the minimum suspension period would result in manifest injustice and would not further the purposes of Chapter 1513. of the Revised Code; and

(b) The chief shall furnish the permittee and all other parties of the hearing with the written determination, which shall state the reasons for this determination issued pursuant to paragraph (C) (9)(a) of this rule.

(10) Whenever the chief orders the revocation or suspension of the permit in the determination issued pursuant to paragraph (C) (9)(a) of this rule, the permittee shall immediately cease coal mining operations on the permit area and shall:

(a) If the permit and the right to mine are revoked, complete reclamation within the time specified in the order or the chief shall declare as forfeited the performance security for the operation; or

(b) If the permit and right to mine are suspended, complete all affirmative obligations to abate all conditions, practices or violations, as specified in the order.

(D) Service of notices and orders.

(1) Any notice or order shall be served on the person to whom it is directed or his or her designated agent promptly after issuance, as follows:

(a) By tendering a copy at the coal exploration or coal mining and reclamation operation to the person to whom it is directed or to the designated agent, or to the individual who, based upon reasonable inquiry by the chief's authorized representative, appears to be in charge of the coal exploration or coal mining and reclamation operation referred to in the notice or order. If no such individual can be located at the site, a copy may be tendered to any individual at the site who appears to be an employee or agent of the person to whom the notice or order is issued. In the event a notice or order is tendered to anyone other than to whom it is directed or his or her designated agent, service shall also be made by certified mail. Service shall be complete upon tender of the notice or order and shall not be deemed incomplete because of refusal to accept; or

(b) As an alternative to paragraph (D)(1)(a) of this rule, service may be made by sending a copy of the notice or order by certified mail to the address shown as current on the permit in accordance with rule 1501:13-4-03 of the Administrative Code or by hand to the person to whom it is issued or his or her designated agent. Service shall be complete upon tender of the notice or order of the mail and shall not be deemed incomplete because of refusal to accept.

(c) In the event that attempts to deliver the notice or order by hand or by certified mail are unsuccessful, service of the notice or order may be made by first class mail to the most current address on file with the division of mineral resources management.

(2) Designation by any person of an agent for service of notices and orders shall be made in writing to the division of mineral resources management.

(E) Expiration of order of cessation.

(1) Except as provided in paragraph (E)(2) of this rule, a notice of violation or order which requires cessation of mining shall expire within thirty days after it is served unless a hearing has been held pursuant to section 1513.13 of the Revised Code within that time.

(2) A notice of violation or cessation order shall not expire as provided in paragraph (E)(1) of this rule, if the condition, practice, or violation in question has not been abated or if the hearing has been waived by the person to whom the notice or order was issued.

(F) Review of citations.

(1) A person issued a notice of violation or cessation order under this rule, or a person having an interest which is or may be adversely affected by the issuance, modification, vacation, or termination of a notice or order may request review of that action by filing an application for review and request for hearing under section 1513.13 of the Revised Code within thirty days after receiving notice of the action. Such person may also request temporary relief under division (C) of section 1513.13 of the Revised Code.

(2) The filing of an application for review and request for a hearing under paragraph (F) of this rule shall not operate as a stay of any notice or order, or of any modification, termination or vacation of either.

(G) Lack of information. No notice of violation, cessation order, show cause order, or order revoking or suspending a permit may be vacated because it is subsequently determined that the chief did not have information sufficient, under these rules, to justify an inspection.

(H) Inability to comply.

(1) No cessation order or notice of violation issued under these rules may be vacated because of inability to comply.

(2) Inability to comply may not be considered in determining whether a pattern of violations exists pursuant to paragraph (C) of this rule.

(3) Unless caused by lack of diligence, inability to comply may be considered only in mitigation of the amount of civil penalty under rule 1501:13-14-03 of the Administrative Code and of the duration of the suspension of a permit under paragraph (C) of this rule.

(I) Injunctive relief. The chief may request the attorney general of the state of Ohio to institute a civil action for relief, including a permanent or temporary injunction, restraining order or any other order in the court of common pleas for the county in which the coal exploration or coal mining and reclamation operation is located or in which the person to whom the notice of violation or order has been issued has his or her principal office whenever that person or his or her agent, in violation of Chapter 1513. of the Revised Code or rules adopted thereunder, or any condition of a coal exploration permit or a coal mining and reclamation permit:

(1) Violates or fails or refuses to comply with any order or decision of the chief or any authorized representative of the chief under Chapter 1513. of the Revised Code or rules adopted thereunder;

(2) Interferes with, hinders or delays the chief or an authorized representative in carrying out the provisions of Chapter 1513. of the Revised Code or rules adopted thereunder;

(3) Refuses to admit an authorized representative of the chief to a mine;

(4) Refuses to permit inspection of a mine by an authorized representative of the chief;

(5) Refuses to furnish any required information or report;

(6) Refuses to permit access to or copying of any required records; or

(7) Refuses to permit inspection of monitoring equipment.

(J) For dates of federal rules and federal laws referenced in this rule, see rule 1501:13-1-14 of the Administrative Code.

Effective: 12/30/2011
R.C. 119.032 review dates: 10/12/2011 and 12/20/2016
Promulgated Under: 119.03
Statutory Authority: 1513.02
Rule Amplifies: 1513.02 , 1513.07 , 1513.072 , 1513.08 , 1513.13
Prior Effective Dates: 8/16/82 (Emer.), 10/27/82, 10/1/88, 8/5/91, 7/27/92, 2/15/03, 04/30/09, 10/28/10

1501:13-14-03 Civil penalties.

(A) The chief shall review each notice of violation and cessation order in accordance with the assessment procedures described in this rule to determine whether a civil penalty shall be assessed, the amount of the penalty, and whether each day of a continuing violation will be deemed a separate violation for purposes of the total penalty assessed.

(B) The chief shall assess a penalty for each cessation order. In all other instances, the chief shall consider the factors listed in paragraph (C) of this rule in determining whether to assess a penalty.

(C) In determining the amount of the penalty, the chief shall consider:

(1) The permittee's history of previous violations at the particular coal mining operation;

(2) The seriousness of the violation, including any irreparable harm to the environment and any hazard to the health or safety of the public;

(3) Whether the permittee was negligent;

(a) "Negligence" means the failure of a permittee to prevent the occurrence of any violation of the conditions of the permit or Chapter 1513. of the Revised Code or rules adopted thereunder due to indifference, lack of diligence, or lack of reasonable care, or the failure to abate any violation of the permit or the law due to indifference, lack of diligence, or lack of reasonable care;

(b) A "greater degree of fault than negligence" means reckless, knowing, or intentional conduct; and

(4) The demonstrated good faith of the permittee to whom the notice or order was issued in attempting to achieve rapid compliance after notification of the violation;

(a) "Rapid compliance" means that the person to whom the notice or order was issued took extraordinary measures to abate the violation in the shortest possible time and that abatement was achieved before the time set for abatement;

(b) "Normal compliance" means the person to whom the notice or order was issued abated the violation within the time given for abatement;

(c) If consideration of this criterion is impractical because of the length of the abatement period, the assessment may be made without considering this criterion and may be reassessed after the violation has been abated.

(D) Assessment of separate violations for each day.

(1) The chief may assess separately a civil penalty for each day from the date of issuance of the notice of violation or cessation order to the date set for abatement of the violation. In determining whether to make such an assessment, the chief shall consider the factors listed in paragraph (C) of this rule and may consider the extent to which the person to whom the notice or order was issued gained any economic benefit as a result of a failure to comply.

(2) In addition to the civil penalty provided for in paragraph (D)(1) of this rule and pursuant to section 1513.02 of the Revised Code, whenever a violation contained in a notice of violation, cessation order or other order has not been abated within the abatement period in the order, a civil penalty of not less than seven hundred fifty dollars shall be assessed for each day during which such failure continues, provided that such penalty for the failure to abate a violation shall not be assessed for more than thirty days for each such violation. If the permittee has not abated the violation within the thirty-day period, the chief shall within the next thirty days take appropriate action pursuant to section 1513.17 or 1513.40 of the Revised Code, or division (D)(3) of section 1513.02 of the Revised Code, or division (A) of section 1513.15 of the Revised Code, to ensure that abatement occurs or to ensure that there will not be a reoccurrence of the failure to abate. If the person to whom the notice or order was issued initiates review proceedings with respect to the violation, the abatement period shall be extended as follows:

(a) If the chairman of the reclamation commission determines, in a temporary relief proceeding held under section 1513.13 of the Revised Code, that the person to whom the notice or order was issued will suffer irreparable loss or damage from the application of the requirements, the period permitted for abatement shall not end until the date on which the chairman of the reclamation commission issues a final order with respect to the violation in question; and

(b) If the person to whom the notice or order was issued initiates review proceedings under section 1513.14 of the Revised Code with respect to the violation in which the obligations to abate are stayed by the court, the daily assessment of a penalty shall not be made for any period before entry of a final order by the court.

(E) Procedures for assessment of civil penalties.

(1) The chief shall, within thirty days of the issuance of the notice or order, serve a copy of the proposed assessment, by certified mail, on the person to whom the notice of violation or order was issued at the address specified in the sign required under paragraph (B) of rule 1501:13-9-01 of the Administrative Code, or at any address at which the person is in fact located. Service shall be deemed complete when the certified mail service requirements of paragraph (D)(1)(b) of rule 1501:13-14-02 of the Administrative Code are met.

(2) The recipient of the proposed assessment shall be advised of the right to an informal assessment conference under this rule.

(3) Within fifteen days of service of a notice of violation or order, the person to whom it was issued may submit written information about the violation to the chief and to the inspector who issued the notice of violation or cessation order. The chief shall consider any information so submitted in determining the facts surrounding the violation and the amount of the penalty.

(F) Informal assessment conference.

(1) Within fifteen days from the date upon which a proposed assessment is served, the person to whom the proposed assessment was issued may submit a written request to the chief for an informal assessment conference to contest the amount of the penalty. The informal assessment conference shall constitute the public hearing required by division (E)(2) of section 1513.02 of the Revised Code. A person who does not submit a timely request for an informal assessment conference shall be considered to have waived the opportunity for a conference. A timely request for an informal assessment conference under this rule shall toll the time permitted for appeal of the proposed assessment to the reclamation commission pursuant to section 1513.13 of the Revised Code.

(2) The chief shall appoint a conference officer to conduct the informal assessment conference. The conference officer shall be a person other than the inspector who issued the notice of violation upon which the penalty is based.

(3) The assessment conference shall not be governed by Chapter 119. of the Revised Code regarding the requirements for formal adjudicatory hearings.

(4) The assessment conference shall be held within sixty days after receipt of the written request required by paragraph (F)(1) of this rule. A failure by the chief to hold the assessment conference within the prescribed time limit shall not be grounds for rescission or reduction of all or a part of the proposed assessment unless the person against whom the proposed penalty is assessed makes a timely written objection to the delay and proves to the chief that actual prejudice results from the delay.

(5) The chief shall post notice of the date, time and place of the conference at least five days prior to the conference at the district office of the division of mineral resources management from which the underlying notice of violation was issued. Any person may attend and participate in the conference.

(6) Within thirty days after the conference, the conference officer shall issue a written notice of his or her action as a result of the conference, which notice shall be served on the persons who participated in the conference by certified mail in accordance with paragraph (D)(1)(b) of rule 1501:13-14-02 of the Administrative Code. The notice shall contain the decision of the conference officer to affirm, raise, lower or vacate the proposed assessment.

(7) The conference officer shall consider such information as is relevant to the assessment. The conference officer shall either:

(a) Settle the issues, in which case a settlement agreement shall be prepared and signed by the conference officer, chief and by the person assessed; or

(b) Affirm, raise, lower or vacate the penalty.

(8) The person served with the proposed assessment shall bear the burden of proving at the conference the existence or non-existence of any or all of the factors subject to consideration by the conference officer.

(9) The written notice of the conference officer's decision shall be accompanied by the worksheet if the proposed assessment has been raised or lowered. The reasons for the conference officer's action on the proposed assessment shall be fully documented in the appropriate file.

(10) If the conference officer increases or decreases the proposed assessment by more than twenty-five per cent and five hundred dollars, the notice of decision required by paragraph (F)(6) of this rule shall not be final unless approved by the chief or his or her designee, evidenced by the appropriate signature thereon.

(11) The conference officer may terminate the conference when he or she determines that the issues cannot be resolved, or that the person assessed is not diligently working toward a good faith resolution of the issues.

(12) If full payment of the amount specified in the settlement agreement is not received within thirty days after execution of the agreement, the chief may enforce the agreement or rescind it and proceed as if there had never been a settlement agreement.

(G) Request for hearing. Any person having an interest that is or may be adversely affected by a notice of violation, order or decision of the chief or by any modification, vacation or termination of such a notice, order or decision, except a show cause order or an order which adopts a rule, may appeal by filing a notice of appeal with the reclamation commission pursuant to section 1513.13 of the Revised Code within thirty days from receipt of the proposed assessment.

(1) At the time this appeal is filed, the person shall forward the amount of the penalty to the secretary of the reclamation commission for placement in an escrow account. Failure to forward the money to the secretary of the reclamation commission within thirty days from receipt of the proposed assessment shall result in a waiver of all legal rights to contest the violation or the amount of the penalty.

(2) The reclamation commission shall hold all funds submitted under paragraph (G)(1) of this rule in escrow pending completion of the administrative and judicial review process, at which time it shall disburse them as provided in paragraph (I) of this rule.

(H) If, upon appeal, the reclamation commission affirms or modifies the proposed amount of the penalty, the person so assessed shall have thirty days from service of the commission's written decision, unless otherwise provided by Chapter 1513. of the Revised Code, within which to pay such amount in full, or file an appeal with the court of appeals.

(I) Final assessment and payment of penalty.

(1) If the person to whom a notice of violation or cessation order is issued fails to request a review as provided in paragraph (G) of this rule, a proposed assessment shall become a final order of the chief and the penalty assessed shall become due and payable upon expiration of the time allowed to request a hearing.

(2) If any party requests judicial review of a final order of the reclamation commission, the proposed penalty shall continue to be held in escrow until completion of the review. Otherwise, subject to paragraph (I)(3) of this rule, the escrowed funds shall be transferred to the chief in payment of the penalty, and the escrow shall end.

(3) If the final decision in the administrative and judicial review results in an order reducing or eliminating the proposed penalty assessed under this rule, the reclamation commission shall, within thirty days of receipt of the order, refund to the person assessed all or part of the escrowed amount, with interest, from the date of payment into escrow to the date of the refund.

Effective: 04/30/2009
R.C. 119.032 review dates: 02/06/2009 and 04/20/2014
Promulgated Under: 119.03
Statutory Authority: 1513.02
Rule Amplifies: 1513.02 , 1513.13 , 1513.14 , 1513.15
Prior Effective Dates: 8-16-82 (Emer.), 10-27-82, 12-30-85 (Emer.), 5-19-86, 10-1-88, 2-15-03

1501:13-14-04 Petition for fees.

(A) Award of costs and expenses.

(1) Any person may file a petition for award of costs and expenses including attorneys' fees reasonably incurred as a result of that person's participation in any administrative proceeding under Chapter 1513. of the Revised Code which results in a final order being issued by the chief.

(2) The petition for an award of costs and expenses including attorneys' fees must be filed with the chief within forty-five days of receipt of such order. Failure to make a timely filing of the petition may constitute a waiver of the right to such an award.

(3) Contents of petition.

(a) A petition filed under paragraph (A)(1) of this rule shall include the name of the person from whom costs and expenses are sought and the following shall be submitted in support of the petition:

(i) An affidavit setting forth in detail all costs and expenses including attorneys' fees reasonably incurred for, or in connection with, the person's participation in the proceeding;

(ii) Receipts or other evidence of such costs and expenses; and

(iii) Where attorneys' fees are claimed, evidence concerning the hours expended on the case, the customary commercial rate of payment for such services in the area, and the experience, reputation and ability of the individual or individuals performing the services.

(4) Any person served with a copy of the petition shall have thirty days from service of the petition within which to file an answer to such petition.

(5) Appropriate costs and expenses including attorneys' fees may be awarded:

(a) To any person from the permittee, if:

(i) The person initiates any administrative proceedings reviewing enforcement actions, upon a finding that a violation of Chapter 1513. of the Revised Code, Chapters 1501:13-1 to 1501:13-14 of the Administrative Code or the permit has occurred, or that an imminent hazard existed, or to any person who participates in an enforcement proceeding where such a finding is made if the chief determines that the person made a substantial contribution to the full and fair determination of the issues; or

(ii) The person initiates an application for review of alleged discriminatory acts, pursuant to section 1513.39 of the Revised Code, upon a finding of discriminatory discharge or other acts of discrimination;

(b) To any person other than a permittee or his or her representative from the state of Ohio, if the person initiates or participates in any proceeding under Chapter 1513. of the Revised Code upon a finding that the person made a substantial contribution to a full and fair determination of the issues;

(c) To a permittee from the state of Ohio when the permittee demonstrates that the chief or his or her authorized representative issued an order of cessation, a notice of violation or an order to show cause why a permit should not be suspended or revoked, in bad faith and for the purpose of harassing or embarrassing the permittee;

(d) To a permittee from any person where the permittee demonstrates that the person initiated a proceeding under Chapter 1513. of the Revised Code or participated in such a proceeding in bad faith for the purpose of harassing or embarrassing the permittee; or

(e) To the division of mineral resources management where it demonstrates that any person applied for review pursuant to Chapter 1513. of the Revised Code or that any party participated in such a proceeding in bad faith and for the purpose of harassing or embarrassing the division of mineral resources management.

(6) An award under this rule may include:

(a) All costs and expenses, including attorneys' fees and expert witness fees, reasonably incurred as a result of initiation and/or participation in a proceeding under Chapter 1513. of the Revised Code; and

(b) All costs and expenses, including attorneys' fees and expert witness fees, reasonably incurred in seeking the award of costs.

(B) Appeal of decision. Any person aggrieved by a decision concerning the award of costs and expenses in an administrative proceeding under Chapter 1513. of the Revised Code may appeal such award to the reclamation commission pursuant to section 1513.13 of the Revised Code.

Effective: 04/30/2009
R.C. 119.032 review dates: 02/06/2009 and 04/20/2014
Promulgated Under: 119.03
Statutory Authority: 1513.02
Rule Amplifies: 1513.07 , 1513.13 , 1513.131
Prior Effective Dates: 10-27-82, 2-15-03

1501:13-14-05 Informal conferences.

(A) Procedure for request for informal conference. Any person whose interests are or may be adversely affected by the issuance of a permit, the issuance of a significant revision to a permit or the renewal of a permit, or the officer or head of any federal, state or local government agency or authority, or any permittee whose performance security amount is proposed to be adjusted in accordance with paragraph (E) of rule 1501:13-7-02 of the Administrative Code, may, in writing, request that the chief hold an informal conference on the application for a permit or application for significant revision or renewal of a permit or on the proposed performance security adjustment. The request shall:

(1) Briefly summarize the issues to be raised at the conference by the person requesting the conference; and

(2)

(a) Be filed with the chief not later than thirty days after the last publication of the newspaper advertisement placed by the applicant under paragraph (A)(1) of rule 1501:13-5-01 of the Administrative Code; or

(b) Be filed with the chief not later than thirty days after receipt by the permittee of the proposed performance security adjustment.

(B)

(1) Except as provided in paragraph (C) of this rule, if an informal conference is requested in accordance with paragraph (A) of this rule, the chief shall hold an informal conference within a reasonable time not to exceed sixty days following:

(a) The close of the comment period required by paragraph (B)(1) of rule 1501:13-5-01 of the Administrative Code for a permit application, an application for significant revision to a permit or an application for renewal of a permit; or

(b) Receipt by the permittee of a performance security adjustment under paragraph (E) of rule 1501:13-7-02 of the Administrative Code.

(2) The informal conference shall be conducted as follows:

(a) The conference shall be held in the county where the largest portion of the area permitted or to be permitted is located;

(b) The date, time, and location of the informal conference shall be sent to the applicant or permittee and other parties to the conference and advertised by the chief in a newspaper of general circulation in the locality of the proposed permit or existing permit at least two weeks prior to the scheduled conference;

(c) If requested, in writing, by the person requesting the conference at a reasonable time prior to the conference, the chief may arrange with the applicant or permittee to grant parties to the conference access to the proposed permit or existing permit area and, to the extent that the applicant or permittee has the right to grant access to it, to the adjacent area, prior to the established date of the conference for the purpose of gathering information relevant to the conference; and

(d) The conference shall be conducted by the chief or a representative of the chief. The chief or his or her representative may accept oral or written statements and any other relevant information from any party to the conference. An electronic or stenographic record shall be made of the conference proceeding, unless waived by all the parties. The record shall be maintained and shall be accessible to the parties of the conference until final release of the applicant's or permittee's performance security required by Chapter 1513. of the Revised Code and these rules.

(3) If the informal conference has been held pursuant to section 1513.071 of the Revised Code, the chief shall issue and furnish the applicant for a permit, persons who participated in the informal conference, and persons who filed written objections pursuant to division (B) of section 1513.071 of the Revised Code, with the written finding of the chief granting or denying the permit in whole or in part and stating the reasons therefor within sixty days of the conference, provided that the chief shall comply with the time frames established in paragraph (D)(2)(b) of rule 1501:13-5-01 of the Administrative Code.

(C) If all persons requesting the informal conference stipulate agreement prior to the requested informal conference and withdraw their request, the informal conference need not be held.

(D) Conferences for reclamation phase approvals and performance security releases are subject to rule 1501:13-7-08 of the Administrative Code.

Effective: 10/28/2010
R.C. 119.032 review dates: 06/11/2010 and 10/15/2015
Promulgated Under: 119.03
Statutory Authority: 1513.02
Rule Amplifies: 1513.07 , 1513.071
Prior Effective Dates: 10/1/88, 4/30/09

1501:13-14-06 Individual civil penalties.

(A) Definitions. For the purposes of this rule:

(1) "Violation" means a violation of any requirement of Chapter 1513. of the Revised Code, rules adopted thereunder, or of any permit condition.

(2) "Failure or refusal" means a failure or refusal to comply with any notice of violation or order of the chief issued under Chapter 1513. of the Revised Code, except that non-payment of civil penalties assessed against a corporate permittee or non-compliance with any order issued by the chief under section 1513.39 of the Revised Code does not constitute a failure or refusal.

(3) "Willfully" means that an individual acted:

(a) Either intentionally, voluntarily or consciously; and

(b) With intentional disregard or plain indifference to legal requirements in authorizing, ordering or carrying out a corporate permittee's action or omission that constituted a violation, failure or refusal.

(B) Except as provided in paragraph (C) of this rule, the chief may assess an individual civil penalty against any corporate director, officer or agent of a corporate permittee who knowingly and willfully authorized, ordered or carried out a violation, failure or refusal.

(C) The chief shall not assess an individual civil penalty in situations resulting from a permit violation by a corporate permittee until a cessation order has been issued by the chief to the corporate permittee for the violation, and the cessation order has remained unabated for thirty days.

(D) Amount of the individual civil penalty.

(1) In determining the amount of an individual civil penalty assessed under paragraph (B) or (C) of this rule, the chief shall consider the criteria specified in division (E)(1) of section 1513.02 of the Revised Code, including:

(a) The individual's history of authorizing, ordering or carrying out previous violations, failures or refusals at the particular coal mining operation;

(b) The seriousness of the violation, failure or refusal, including any irreparable harm to the environment and any hazard to the health or safety of the public; and

(c) The demonstrated good faith of the individual charged in attempting to achieve rapid compliance after receipt of the notice of the violation, failure or refusal.

(2) The penalty shall not exceed five thousand dollars for each violation. Each day of a continuing violation may be deemed a separate violation and the chief may assess a separate individual civil penalty for each day the violation continues, from the date of service of the underlying notice of violation, cessation order or other order incorporating a final decision of the chief, until abatement or compliance is achieved.

(E) Procedure for assessment of the individual civil penalty.

(1) For every imminent harm cessation order or failure-to-abate cessation order issued by the chief in accordance with paragraph (A)(1) or paragraph (A)(3) of rule 1501:13-14-02 of the Administrative Code, the chief shall immediately serve on each individual to be assessed an individual civil penalty, a notice of proposed individual civil penalty assessment, including a narrative explanation of the reasons for the penalty, the amount to be assessed, and a copy of any underlying notice of violation and cessation order.

(2) The notice of proposed individual civil penalty assessment shall become a final order of the chief thirty days after service upon the individual unless:

(a) The individual files, within thirty days of service of this notice of proposed individual civil penalty assessment, a notice of appeal to the reclamation commission in accordance with section 1513.13 of the Revised Code; or

(b) The chief and the individual or responsible corporate permittee agree, within thirty days of service of the notice of proposed individual civil penalty assessment, to a schedule or plan for the abatement or correction of the violation, failure or refusal.

(3) For purposes of paragraphs (E)(1) to (E)(2)(b) of this rule, service is sufficient if it would satisfy the requirements of paragraph (D) of rule 1501:13-14-02 of the Administrative Code.

(F) If a notice of proposed individual civil penalty assessment becomes a final order in the absence of a petition for review or abatement agreement, the penalty shall be due upon issuance of the final order.

(G) If an individual named in a notice of proposed individual civil penalty assessment files a notice of appeal in accordance with section 1513.13 of the Revised Code, the penalty shall be due upon issuance of a final administrative order affirming, increasing or decreasing the proposed penalty.

(H) Where the chief and the corporate permittee or individual have agreed in writing on a plan for the abatement of or compliance with the unabated notice of violation or cessation order, an individual named in a notice of proposed individual penalty assessment may postpone payment until receiving either a final order from the chief stating that the penalty is due on the date of such final order, or written notice that abatement or compliance is satisfactory and the penalty has been withdrawn.

(I) Following the expiration of forty-five days after the individual civil penalty is payable, any delinquent penalty shall be certified to the attorney general for collection.

Effective: 12/30/2011
R.C. 119.032 review dates: 10/12/2011 and 12/20/2016
Promulgated Under: 119.03
Statutory Authority: 1513.02
Rule Amplifies: 1513.02 , 1513.13 , 1513.40
Prior Effective Dates: 12/27/90, 2/15/03, 4/30/09