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Ohio Laws and Rules
Chapter 3745-47 of the Administrative Code shall govern procedure for all adjudication hearings, public meetings relating to adjudicatory acts (including public meetings on draft or proposed actions), and other proceedings relating to adjudicatory acts conducted by the agency or by its duly authorized hearing examiners pursuant to Chapters 119., 3704., 3734., 3745., 6109. and 6111., of the Revised Code and sections 1505.07, 3707.42, 6101.13, 6101.39, 6103.17, 6112.02, 6117.34, 6117.46, and 6119.35 of the Revised Code, or any other statute providing for an adjudication hearing before the agency.
HISTORY: Eff 7-5-73; 6-30-81
Rule promulgated under: RC Chapter 119.
Rule amplifies: RC Chapter 3704., Chapter 3734., Chapter 3745., Chapter 6109., Chapter 6111., Chapter 1505., Chapter 3707., Chapter 6101., Chapter 6103., Chapter 6112., Chapter 6117., Chapter 6119.
119.032 Review Date: 5-25-03
Chapter 3745-47 of the Administrative Code shall be construed liberally to accomplish the purposes of the chapters and sections of the Revised Code within the jurisdiction of the agency, and to afford maximum procedural fairness consistent with just, speedy, and inexpensive resolution of controversies.
HISTORY: Eff 7-5-73; 6-30-81
Rule promulgated under: RC Chapter 119.
Rule amplifies: RC Chapter 3734., Chapter 3745., Chapter 6109., Chapter 6111.
119.032 Review Date: 5-25-03
As used in Chapter 3745-47 of the Administrative Code:
(A) “Action” means the issuance, modification, or revocation of an order, including an order dismissing a verified complaint; the issuance, denial, renewal, modification, or revocation of a license, permit, lease, variance, or certificate; or the approval or disapproval of plans and specifications pursuant to law or regulation.
(B) “Adjudication hearing” means an adversary proceeding at which are determined rights, duties, privileges, benefits or legal relationships of a specified person.
(C) “Agency” means the Ohio environmental protection agency.
(D) “Director” means the director of environmental protection of Ohio.
(E) “Draft action” means a written statement that gives the director’s intention with respect to the issuance, denial, renewal, modification, or revocation of any permit, variance, license, certificate, or lease; approval or disapproval of plans and specifications; or issuance, modification, or revocation of an order, and concerning which persons authorized by law or agency regulations may file comments or request a public meeting, but which will not be the subject of an adjudication hearing before the director. If the draft action indicates an intent to issue a permit, license, variance, order, or certificate, it shall include a draft permit, license, variance, order or certificate.
(F) “Fact sheet” means the statement of facts provided for in paragraph (A) of rule 3745-47-06 of the Administrative Code relative to issuance of an action.
(G) “Final action” means the written decision on any matter that is signed by the director and entered into the journal pursuant to rule 3745-47-27 of the Administrative Code.
(H) “Initiation of hearing proceedings” means the occurrence of any event that requires that an adjudication hearing be held, including but not limited to, a timely objection to a proposed action pursuant to section 3745.07 of the Revised Code, service of a verified complaint upon an alleged violator pursuant to section 3745.08 of the Revised Code, and notice of a hearing pursuant to section 6109.14 or 6111.32 of the Revised Code.
(I) “Issue” (“issuance”) means
(1) In the case of a draft or proposed action, to place the action into the United States mail.
(2) In the case of a final action, to enter the action into the director’s journal after it is signed by the director.
(J) “Party” means
(1) The agency;
(2) The person to whom the proposed action is issued, or the alleged violator upon whom a notice of hearing is served pursuant to section 6109.14, 3745.08, or 6111.32 of the Revised Code;
(3) Any person who objects pursuant to section 3745.07 of the Revised Code;
(4) Any person who intervenes pursuant to rule 3745-47-15 of the Administrative Code; or
(5) Any person who files a verified complaint under section 3745.08 of the Revised Code, with respect to the alleged violation that is the subject of the hearing, if the person has, prior to the hearing, filed with the director a written notice of intent to participate as a party.
No other person shall be deemed to be a party to an adjudication hearing.
(K) “Permit,” “license,” “certificate,” or “variance” includes any provisions, terms, conditions, specifications, requirements, or limitations with which the permittee or licensee must comply, or which affect exercise of the permit or license, whether such provisions, terms, conditions, specifications, requirements, or limitations are set forth fully on the permit or license document, appended thereto, or incorporated by reference. All requirements of statutes or regulations applicable to the permittee or licensee shall be conditions of such permit, license or variance, although not set forth on the permit, license, or variance, or appended thereto or incorporated by reference.
(L) “Person” means the state of Ohio or any agency thereof, the federal government or any agency thereof, any other state or agency thereof, any interstate agency, any municipal corporation, political subdivision, public or private corporation, individual, partnership, or other entity.
(M) “Proposed action” means a written statement that gives the director’s intention with respect to the issuance, denial, renewal, modification, or revocation of any permit, variance, license, certificate, or lease; or approval or disapproval of plans and specifications; or issuance, modification, or revocation of an order, and concerning which persons authorized by law or agency regulations may file comments or request an adjudication hearing or public meeting. If the proposed action indicates an intent to issue a permit, license, variance, order, or certificate, it shall include a proposed permit, license, variance, order, or certificate.
(N) “Public meeting” means a non-adversary public hearing, where any person may present written or oral statements for the director’s consideration pertaining to the application, draft action, or proposed action that is the subject of the meeting, and includes public hearings held pursuant to division (H) of section 3704.03 of the Revised Code.
(O) “Verified complaint” means a written complaint, verified by the affidavit of the complainant, his agent, or his attorney. The affidavit may be made before any person authorized by law to administer oaths, and shall be signed by the person who makes the affidavit. The person who administers the oath shall certify that the affidavit was sworn to before him and signed in his presence.
HISTORY: Eff 4-26-76; 6-30-81
Rule promulgated under: RC Chapter 119.
Rule amplifies: RC Chapter 3745., Chapter 6109., Chapter 6111.
119.032 Review Date: 5-25-03
(A) The duties of the hearing clerk shall be performed by the employee designated by the agency as hearing clerk, together with such assistants as the hearing clerk may require to accomplish the hearing clerk’s duties. The hearing clerk shall:
(1) Immediately upon initiation of hearing proceedings, open a hearing file and assign a docket number to the proceedings.
(2) Be the custodian of all hearing files for the agency.
(3) Upon initiation of hearing proceedings, include in the hearing file copies of the proposed action, all notices, the fact sheet where one is required, and any written comments received by the agency. Upon request of any party, the hearing clerk shall also place into the hearing file a copy of the application, if any, any documents filed by the applicant in support of its application, and any documents prepared by the agency in support of the proposed action.
(4) During the pendency of the proceedings carefully preserve in the hearing file all papers delivered to the hearing clerk for that purpose and all written comments pertaining to the proceedings received by the agency, recording on all such papers the date of receipt thereof.
(5) Permit any person to make a copy of any papers in the hearing file or other files of the agency in the possession of the hearing clerk except where such matters are not open to public inspection by operation of paragraph (B) of rule 3745-47-20 of the Administrative Code.
(6) Effect all notices pertaining to agency public meetings and adjudication hearings required by statute or rule.
(7) Prepare and certify the record or documents in the hearing file in any instance where certification by the agency or director is required by law.
(8) Perform such other duties as are assigned to the hearing clerk by the director.
(B) The acceptance of papers or documents for filing or the commission of any other act by the hearing clerk shall not be construed as an admission by the agency of the validity or proper filing of such paper or of compliance with any procedural requirements imposed by statute or rule.
HISTORY: Eff 7-5-73; 6-30-81
Rule promulgated under: RC Chapter 119.
Rule amplifies: RC Chapter 3745.
119.032 Review Date: 5-25-03
(A) Except as provided in paragraph (C) or (E) of this rule, in all actions of the agency, the director shall prepare and issue to the person subject thereto a proposed action. The proposed action may bear a date upon which it will become effective as a final action, or it may be issued with no such date stated. If the proposed action bears such a date, the date shall not be prior to:
(1) The deadline for filing comments set forth in paragraph (F) of this rule; or
(2) The deadline for requesting public meetings set forth in rule 3745-47-12 of the Administrative Code; or
(3) The deadline for filing adjudication hearing requests and objections set forth in rule 3745-47-13 of the Administrative Code.
(B) (1) Except as paragraph (B)(2) of this rule authorizes or paragraph (B)(3) of this rule requires the contrary, the director shall issue the proposed action as his final action on the effective date stated.
(2) (a) If a proposed action is issued with an effective date, the director may amend the proposed action prior to its effective date, or, if hearing proceedings are initiated, at any time prior to entry of the proposed action upon the director’s journal as a final action. A proposed action issued without an effective date may be amended at any time prior to entry upon the director’s journal as a final action.
(b) The director may withdraw the proposed action prior to the effective date stated, or, if no date is stated, at any time. However, the director may not withdraw a proposed action after initiation of hearing proceedings, unless all requests for adjudication hearings and objections have been withdrawn or dismissed.
(3) (a) The director shall not issue a final action prior to any of the dates set forth in paragraphs (A)(1) to (A)(3) of this rule.
(b) The director shall not issue a final action
(i) If an objection is received from the United States environmental protection agency and the applicable law prohibits issuance of a final action under such circumstances; or
(ii) Until paragraph (D) of rule 3745-47-12 of the Administrative Code is complied with; or
(iii) Until paragraph (C) of rule 3745-47-13 of the Administrative Code is complied with; or
(iv) Until paragraph (F) of this rule is complied with.
(C) Notwithstanding the provisions of paragraph (A) of this rule, the director may issue a draft action to the person subject thereto in any instance in which the director would be permitted to issue a final action without a hearing pursuant to paragraph (E) of this rule. The draft action may bear a date upon which it will become effective as a final action, or it may be issued with no such date stated. If the draft action bears such an effective date, the date shall not be prior to
(1) The deadline for filing comments set forth in paragraph (F) of this rule; or
(2) The deadline for requesting public meetings set forth in rule 3745-47-12 of the Administrative Code.
(D) (1) Except as paragraph (D)(2) of this rule authorizes or paragraph (D)(3) of this rule requires the contrary, the director shall issue the draft action as his final action on the effective date stated.
(2) (a) If a draft action is issued with an effective date, the director may amend the draft action at any time prior to its stated effective date. A draft action issued without an effective date may be amended at any time prior to entry upon the director’s journal as a final action.
(b) The director may withdraw the draft action prior to the effective date stated, or, if no date is stated, at any time.
(3) (a) The director shall not issue a final action prior to either of the dates set forth in paragraphs (C)(1) and (C)(2) of this rule.
(b) The director shall not issue a final action
(i) If an objection is received from the United States environmental protection agency and the applicable law prohibits issuance of a final action under such circumstances, or
(ii) Until paragraph (D) of rule 3745-47-12 of the Administrative Code is complied with; or
(iii) Until paragraph (F) of this rule is complied with.
(E) Notwithstanding the provisions of paragraph (A) of this rule, the director may issue a final action without first issuing a proposed action where the statutes pertaining to the agency specifically give a right to appeal to the environmental board of review and also give the appellant a right to a hearing on such appeal in accordance with Chapter 119. of the Revised Code, and where no statutory provision or regulation prohibits such action from being effective before persons permitted by statute or rule to participate in an adjudication hearing have been afforded an opportunity for a hearing.
(F) Any person may submit written comments relating to a proposed action or a draft action. All comments received by the agency within thirty days after public notice, or such longer period as the public notice may specify, shall be considered prior to issuance of a final action. This paragraph does not apply to amended draft or amended proposed actions unless the agency gives public notice of the amended draft or amended proposed action under rule 3745-47-07 of the Administrative Code.
HISTORY: Eff 7-5-73; 6-30-81
Rule promulgated under: RC Chapter 119.
Rule amplifies: RC Chapter 3734.
119.032 Review Date: 5-25-03
(A) In all instances where a federal statute or rule requires a fact sheet to be prepared, the agency shall, prior to issuance of a proposed or draft action, prepare such a fact sheet. The fact sheet shall include such information as may be required by federal statute or rule and may also include such additional information as the agency deems desirable.
(B) The agency shall maintain a mailing list of persons or groups requesting fact sheets prepared for any specified application for issuance or renewal of a permit under division (J) of section 6111.03 of the Revised Code and persons or groups requesting to receive notice of further proceedings relating to such application, copies of additional fact sheets prepared, or other information relating to such application. The agency, and after initiation of hearing proceedings the hearing clerk, shall add any person or group to any such list upon receipt from such person or group of a request for inclusion thereon specifying the application or proceedings about which notices, additional fact sheets, or other information is desired.
HISTORY: Eff 7-5-73; 6-30-81
Rule promulgated under: RC Chapter 119.
Rule amplifies: RC Chapter 6111.
119.032 Review Date: 5-25-03
(A) (1) The agency shall give public notice of all actions, except amended draft and amended proposed actions; adjudication hearings; public meetings; verified complaints received; and complaints filed under section 6111.32 of the Revised Code. The agency shall also give public notice whenever it begins consideration of issuance of certification under section 401 of the Federal Water Pollution Control Act. The agency may also give public notice of amended draft and amended proposed actions.
(2) All notices required or authorized by paragraph (A)(1) shall be published once in a newspaper having general circulation in the county in which the source or facility is located. Publication shall be done within fifteen days after issuance of an action, initiation of consideration, or receipt of a complaint, and at least thirty days prior to a public meeting or an adjudication hearing, except that, if the adjudication hearing concerns the director’s action on an industrial water pollution control certificate under Chapter 6111. of the Revised Code, publication shall be done between fifteen and thirty days prior to the hearing. This paragraph does not apply to a final action preceded by a proposed action, unless the final action differs from the proposed action in a manner that affects the rights or duties of any person, or unless the final action concerns an industrial water pollution control certificate under Chapter 6111. of the Revised Code. Public notice is complete upon publication.
(3) All notices required or authorized by paragraph (A)(1) shall be mailed by first class mail to all persons on the mailing list of subscribers maintained pursuant to section 3745.07 of the Revised Code. Mailing shall be done within seven days after issuance of an action, receipt of a complaint, or initiation of consideration and at least fourteen days prior to a public meeting or an adjudication hearing.
(B) If any person has requested in writing to be kept informed of agency actions relating to a particular source or facility, or has requested a copy of the application, action, or fact sheet therefor, and if the agency later issues an action or receives a complaint relating to the source or facility, the agency shall send the notice required by paragraph (A)(1) of this rule to that person within fifteen days after issuance or receipt.
(C) If any action but a final action would issue or renew a permit to discharge sewage, industrial wastes, or other wastes to waters of the state under division (J) of section 6111.03 of the Revised Code, the agency shall, on or before the date of newspaper publication, provide the information specified in rule 3745-47-09 of the Administrative Code to any state, interstate, federal, or local government agency having jurisdiction over waters that may be affected by the discharge.
(D)(1) The agency shall send notice by certified mail of the time and place of an adjudication hearing to all parties thereto at least thirty days prior thereto, except that, if the hearing relates to an industrial water pollution control certificate under Chapter 6111. of the Revised Code, the agency shall mail the notice between fifteen and thirty days prior to the hearing to the tax commissioner, the county auditor of the county or counties in which the structure or items described in the application are located, and to the person to whom a final action will be issued.
(2) The agency shall send notice by certified mail of the time and place of a public meeting on an action to all parties to any adjudication hearing arising from the action, at least twenty days prior to the meeting.
(E) (1) All actions but final actions shall be mailed by certified mail, return receipt requested, to the person subject thereto. All proposed actions shall be accompanied by a notice that shall state the time and method by which the person may request an adjudication hearing. All draft actions shall be accompanied by a statement as to when a final action will be issued. If an amended proposed action only corrects typographical or administrative errors in a previous action and does not affect the rights or duties of any person, no opportunity to request an adjudication hearing need be afforded.
(2) (a) If a draft or proposed action is issued with an effective date, any amendments thereto are issued in accordance with paragraph (E)(1) of this rule, and the action is later entered upon the director’s journal without being changed further, the agency need not, at the time of entry, provide notice or a copy of the action as entered to the person subject thereto.
(b) If a draft or proposed action is issued without an effective date, any amendments thereto are issued in accordance with paragraph (E)(1) of this rule, and the agency later assigns an effective date and enters the action upon the director’s journal without changing the action further, the agency shall mail notice to the person subject thereto informing him of the effective date.
(c) In all other instances, the agency shall mail a copy of the final action
(i) To the person subject thereto; and
(ii) If the final action follows initiation of hearing proceedings upon a prior proposed action, to any other parties; and
(iii) If the final action follows initiation of hearing proceedings upon a prior proposed action, to any attorneys of record; and
(iv) If the final action dismisses a verified complaint, to the person complained against.
(d) If the final action follows initiation of hearing proceedings upon a prior proposed action, the agency shall certify that the copy of the final action mailed is a true and accurate copy of the final action as entered upon the director’s journal.
(e) All mailings required by paragraphs (E)(2)(b) and (E)(2)(c), except those required by paragraphs (E)(2)(c)(iii) and (E)(2)(c)(iv), shall be done by certified mail, return receipt requested. Notice shall be complete upon receipt or upon refusal to accept certified mail. Mailings required by paragraphs (E)(2)(iii) and (E)(2)(c)(iv) shall be done by first class mail. All mailings required by paragraphs (E)(2)(b) and (E)(2)(c) shall be done within five days of entry of the action upon the director’s journal.
(f) If the applicable law grants a right to appeal the final action to a higher authority, mailings required by this paragraph shall be accompanied by a notice stating the time and method by which the appeal must be filed.
(3) If an action relates to an industrial water pollution control certificate under Chapter 6111. of the Revised Code, it shall be sent to the county auditor of the county or counties in which the structure or items described in the application are located, and to the tax commissioner, within five days of issuance. A proposed action shall be sent by first class mail and shall be accompanied by a notice stating how an application for reconsideration may be filed. A final action shall be sent by certified mail, return receipt requested.
(F)(1) Failure to give notice of a proposed action as required by this rule to any person other than the person subject thereto will invalidate the resulting final action only if the failure is raised by, and was relied upon to the detriment of, any person entitled to be a party at an adjudication hearing before the agency. Failure to mail notice as required by paragraph (A)(3) of this rule will not invalidate any action of the director under any circumstances.
(2) Failure to give notice of a draft action as required by this rule will invalidate the following final action only where such invalidation is expressly required by applicable law.
HISTORY: Eff 5-7-76; 6-30-81
Rule promulgated under: RC Chapter 119.
Rule amplifies: RC Chapter 3745.
119.032 Review Date: 5-25-03
(A) Public notices of draft or proposed actions for issuance or renewal of permits to discharge sewage, industrial wastes, or other wastes to waters of the state under division (J) of section 6111.03 of the Revised Code, shall include:
(1) The name of the agency and the address and telephone number of the facilities where agency files and records pertaining to the application are located and may be inspected and copied, and instructions for persons desiring to obtain additional information or a copy of any fact sheet prepared or of the draft or proposed permit; and instructions to persons desiring to be included on the mailing list provided for in paragraph (B) of rule 3745-47-06 of the Administrative Code.
(2) The name and address of the applicant.
(3) A brief description of the applicant’s activities or operations which result in the discharge described in the application.
(4) The location of the source or operation including the waterway to which each discharge is made, and a short description of the location of each discharge on the waterway indicating whether such discharge is a new or an existing discharge.
(5) A statement of the director’s draft or proposed action to issue or deny the permit for the discharge described in the application.
(6) A statement:
(a) That any person may submit a written statement within thirty days of appearance of public notice in a newspaper in the affected county, or such longer period as the agency may specify; and
(b) That if significant public interest is shown a public meeting may be held on a draft or proposed action prior to issuance of any final action.
(7) If the public notice is for a proposed action:
(a) The date of issuance of the proposed action;
(b) A statement of rights to object and be afforded an adjudication hearing; and
(c) A statement that the proposed action shall become final on an effective date or event specified therein unless:
(i) An adjudication hearing is requested;
(ii) The director amends or withdraws the proposed action; or
(iii) The proposed action is disapproved by the United States environmental protection agency.
(8) If the public notice is for a draft action, a statement that the draft action shall become final on an effective date or event specified therein unless:
(a) The director withdraws or amends the draft action; or
(b) The draft action is disapproved by the United States environmental protection agency.
(B) Public notices of all public meetings and adjudication hearings relating to applications for issuance, modification or renewal of permits to discharge sewage, industrial wastes, or other wastes to waters of the state under division (J) of section 6111.03 of the Revised Code shall include:
(1) The name of the agency and the address and telephone number of the facilities where agency files and records pertaining to the application are located and may be inspected and copied, and instructions for persons desiring to obtain additional information or a copy of any fact sheet prepared or of the draft or proposed permit; and instructions to persons desiring to be included on the mailing list provided for in paragraph (B) of rule 3745-47-06 of the Administrative Code.
(2) The name and address of the applicant.
(3) The location of the source or operation including the waterway to which each discharge is made and a short description of the location of each discharge on the waterway including whether such discharge is a new or an existing discharge.
(4) The identification number and date of issuance of the notice of the draft or proposed action issued pursuant to paragraph (A) of this rule.
(5) The date, time, and location of the public meeting or hearing.
(6) A concise statement of the issues raised by the party requesting the public meeting or adjudication hearing.
(7) If the notice is for an adjudication hearing, a statement that evidence may be presented by the state and the other parties to the hearing.
(8) If the notice is for a public meeting, a statement
(a) That any interested person may appear and present written or oral statements, or both, in person or by a representative, or both, and
(b) That all persons who do so may, in the discretion of the presiding officer, be questioned by other persons present, and
(c) That the purpose of the meeting is to obtain additional information that will be considered by the director prior to the director’s taking further action on the application or draft or proposed action under consideration.
(C) Public notice of verified complaints filed pursuant to section 3745.08 of the Revised Code, or complaints filed pursuant to section 6111.32 of the Revised Code, shall include to the extent known to the agency:
(1) The name of the agency and the address and telephone number of the facilities where further information may be obtained and agency files and records pertaining to the proceedings may be inspected and copied.
(2) The name and address of the party filing the complaint.
(3) The name and address of the person against whom the complaint was filed.
(4) A short description of the location of the source or operation, including for discharges to waters of the state, the waterway to which the discharge is made.
(5) A brief description of the activities or operations of the person against whom the complaint was filed as they pertain to the controversy.
(6) A statement that any person may request notice concerning further actions pursuant to the complaint, including the outcome of the proceedings.
(D) All other public notices shall include to the extent known to the agency:
(1) The name of the agency and the address and telephone number where further information may be obtained and agency files and records pertaining to the proceedings may be inspected and copied.
(2) The name and address of the person responsible for the source.
(3) The location of the source, including for discharges to waters of the state the waterway to which the discharge is made.
(4) If the notice is for a draft or proposed action a statement that any person within thirty days of appearance of public notice in a newspaper in the affected county, or such longer period as the agency may specify, may submit a written statement to the director concerning the draft or proposed action.
(5) A statement that any person may request notice concerning further actions or proceedings.
(6) If the notice is for a proposed or final action, the date of issuance.
(7) If the notice is for a proposed action, a statement of rights to object and be afforded an adjudication hearing.
(8) If the notice is for a final action, a statement of rights to appeal to the environmental board of review, if applicable.
(9) If the notice is for a draft or proposed action, a statement as to when the action will become effective as a final action.
(10) If the notice is for a draft or proposed action, a statement that any person may, within thirty days of appearance of public notice in a newspaper in the affected county, request a public meeting.
(E) Where multiple notices for several actions are mailed or published together with duplicate information, any information that is required by this rule to be contained in more than one such notice need not be repeated in each notice but may be contained in a separate document mailed or published with and referred to in each notice to which it applies.
(F) Notwithstanding any other provision in this rule, notice of a draft or proposed action to modify any action of the director shall include a statement of the draft or proposed modification together with references to the action to be modified and identification numbers of earlier notices or fact sheets relating to such action, and no additional information need be included in the notice of the draft or proposed action.
(G) All notices required by rule 3745-47-07 of the Administrative Code may be summary in form, specifying the source or facility involved, the applicant, owner, or operator, the type of action proposed, if any, and the address of the office from which further information, including the full notice, may be obtained.
HISTORY: Eff 7-5-73; 6-30-81
Rule promulgated under: RC Chapter 119.
Rule amplifies: RC Chapter 3745.
119.032 Review Date: 5-25-03
(A) The notice required by paragraph (C) of rule 3745-47-07 of the Administrative Code to be given to state and governmental agencies shall include:
(1) The information required in rule 3745-47-08 of the Administrative Code for public notices, and may include a copy of such public notices.
(2) A statement that such state or agency may submit written recommendations to the director, and to the regional administrator of the United States environmental protection agency, which the director may incorporate into the permit if issued, and that if the recommendation of the state or agency is not incorporated in the final action of the director, a written explanation of his reasons for not accepting the recommendation will be provided for that state or agency and the regional administrator of the United States environmental protection agency.
(3) A copy of the fact sheet and a statement that a copy of the application for a permit or of the draft or proposed permit, including all ancillary papers, will be provided upon request.
(B) The notice required by paragraph (C) of rule 3745-47-07 of the Administrative Code shall also be given, when applicable, to:
(1) Any agency responsible for an areawide waste treatment management plan pursuant to division (B) of section 208 of the Federal Water Pollution Control Act.
(2) Any agency responsible for the preparation of a plan pursuant to an approved continuing planning process under division (E) of section 303 of the Federal Water Pollution Control Act.
(3) Public health agencies for the purpose of assisting the applicant in coordinating the applicable requirements of the Federal Water Pollution Control Act with any applicable requirements of such public health agencies.
HISTORY: Eff 7-5-73; 6-30-81
Rule promulgated under: RC Chapter 119.
Rule amplifies: RC Chapter 3745., Chapter 6111.
119.032 Review Date: 5-25-03
(A)(1) Upon the director’s issuing a draft or proposed action on an application to issue, modify, or renew a permit to discharge sewage, industrial waste, or other wastes to waters of the state under division (J) of section 6111.03 of the Revised Code, the agency shall transmit by certified mail a copy of the permit to the regional administrator of the United States environmental protection agency, unless by written agreement the regional administrator has waived his right to receive, review, object to or comment upon such proposed permit. If the regional administrator makes timely objection in writing to the issuance of such permit as being outside the requirements of the Federal Water Pollution Control Act, the permit shall not become final. The director may issue an amended draft or amended proposed action after consideration of written comments or recommendations of the regional administrator, or may withdraw a draft or proposed action if permitted by rule 3745-47-05 of the Administrative Code.
(2) Immediately following final issuance, modification, or renewal of a permit to discharge sewage, industrial waste, or other wastes to waters of the state under division (J) of section 6111.03 of the Revised Code, the agency shall transmit by first class mail a copy thereof to the regional administrator.
(B) At the time of issuance of public notice of an application for issuance, modification, or renewal of a permit to discharge sewage, industrial waste, or other wastes to waters of the state pursuant to division (J) of section 6111.03 of the Revised Code, for a discharge for which a fact sheet is prepared pursuant to rule 3745-47-06 of the Administrative Code, the agency shall transmit a copy of the fact sheet to the district engineer of the United States army corps of engineers, for the district in which the discharge is located, unless by written agreement such district engineer has waived his right to receive a fact sheet for such discharge.
HISTORY: Eff 7-5-73; 6-30-81
Rule promulgated under: RC Chapter 119.
Rule amplifies: RC Chapter 3745., Chapter 6111.
119.032 Review Date: 5-25-03
(A) An original and two copies of all papers shall be filed with the hearing clerk for each case, even when cases have been consolidated.
(B) All items except copies of documents filed in the proceedings shall be on eight-and-one-half-by eleven-inch paper and shall be entitled “Before the Ohio Environmental Protection Agency” and shall be styled with the name of the person to whom a final order in the case will be directed, indicating whether such person is an applicant in the case and, if not, designating such person as respondent (i.e., “In the Matter of __________, Applicant” or “In the Matter of __________, Respondent”), and shall set forth the docket number of the case except where no docket number has been assigned.
(C) All papers shall be deemed filed with and received by the agency upon receipt by the hearing clerk.
(D) In computing any period of time prescribed for filing a document, the day of the event after which the designated period of time begins to run is not included. The last day of the period is included unless it is a day upon which the agency is not open for business, in which event the period runs until the end of the next day upon which the agency is open for business. When the time prescribed or allowed is less than seven days, intermediate days upon which the agency is not open for business shall be excluded from the computation.
(E) Any request for an extension of time must be filed within the time allowed for the filing of the document with the agency.
(F) Papers filed with the hearing clerk shall not be considered by the hearing examiner or the director unless proof of service upon other parties, and upon persons entitled to service by rule 3745-47-16 of the Administrative Code, is endorsed thereon. The proof of service shall state the date and manner of service and shall be signed by the person filing such paper or his attorney. If a person being served is represented by an attorney, service shall be made upon the attorney instead of upon the person himself. Service by mail is complete upon mailing. Service may also be made by any other means permitted by the “Ohio Rules of Civil Procedure.”
(G) All papers filed shall be typewritten and shall have typed or printed thereon the name, address, and telephone number of the person or his attorney, if he has one. If a person is represented by a firm of attorneys, a particular attorney within the firm having primary responsibility for the case shall be indicated on such paper. All papers filed shall be signed by the person or his counsel.
(H) Only paragraphs (C) and (D) of this rule apply to filings under paragraph (A) of rule 3745-47-12 of the Administrative Code.
HISTORY: Eff 7-5-73; 6-30-81
Rule promulgated under: RC Chapter 119.
Rule amplifies: RC Chapter 3745., Chapter 119.
119.032 Review Date: 5-25-03
(A) Not later than thirty days after public notice of a draft or proposed action, any person may file a request for a public meeting. This paragraph does not apply to amended draft or amended proposed actions.
(B) If the director determines that there is significant public interest in a draft or proposed action or where required to do so by statute or rule, the director shall hold a public meeting in the county where the source or facility affected is located, or in a contiguous county. In the consideration of an application for issuance or renewal of a permit or variance, the director may hold a public meeting prior to issuance of a draft or proposed action.
(C) In any public meeting, the director may appoint a hearing examiner or other presiding officer to conduct such meeting. On the date and at the time and place specified in the notice, the public meeting shall be held, at which any person:
(1) May appear and be heard in person or by a representative, or both;
(2) May present statements orally or in writing, or both; and
(3) May, in the discretion of the presiding officer, question persons who appear to present statements at such meeting.
(D) Statements presented at a public meeting held pursuant to this rule shall be considered by the director, who may issue a draft or proposed action, may withdraw or amend the draft or proposed action, or issue a final action, as permitted by law. No final action shall be issued until after the report of the presiding officer has been considered.
HISTORY: Eff 7-5-73; 6-30-81
Rule promulgated under: RC Chapter 119.
Rule amplifies: RC Chapter 119., Chapter 3745.
119.032 Review Date: 5-25-03
(A) An adjudication hearing upon a proposed action shall be held:
(1) Upon request therefor from the person to whom the proposed action was issued, or
(2) Upon objection by any person pursuant to section 3745.07 of the revised code or, or
(3) Upon application for reconsideration by the tax commissioner or the county auditor pursuant to section 6111.31 of the Revised Code
If the request, objection, or application is timely.
An application or request relating to an industrial water pollution control certificate under Chapter 6111. of the Revised Code is timely if filed within fifteen days of mailing of notice of the proposed action to the person filing the application or request. All other requests and all objections are timely if filed within thirty days of issuance of the proposed action. This paragraph does not authorize the filing of objections to amended proposed actions unless the agency gave public notice of the amended proposed action under rule 3745-47-07 of the Administrative Code.
(B) All requests for adjudication hearings, objections, and applications shall be in writing. All requests for adjudication hearings, objections, and applications shall state the action of the agency objected to, the questions to be considered at the requested hearing, and the reasons that the proposed action is contested.
If the following are not included in the adjudication hearing request, objection, or application as initially filed, they shall be filed by the party within sixty days of issuance of the proposed action, or such other time as the hearing examiner may order:
(1) The specific provisions of the proposed action that the party alleges should be deleted from the director’s final action;
(2) The specific provisions of the proposed action that the party alleges should be amended in the director’s final action, and the text of the party’s proposed amendment;
(3) The specific provisions that the party alleges should be added to the director’s final action, and requested language for those additions.
For each requested deletion, amendment, or addition, the party shall include a clear and concise summary of the factual and/or legal basis of the request, including a reference setting forth citation to any statute, regulation, or other legal principle that the party asserts is offended by the proposed action. Filings required by paragraphs (B)(1) to (B)(3) of this rule may be included in filings required under rule 3745-47-19 of the Administrative Code, if such would still permit compliance with the sixty-day deadline set forth above, and if such is acceptable to the hearing examiner.
(C) After initiation of hearing proceedings the director shall not issue a final action as required by paragraph (B) of rule 3745-47-05 of the Administrative Code until the hearing proceedings are completed in accordance with Chapter 3745-47 of the Administrative Code.
(D) If an objection is received under section 3745.07 of the Revised Code but no request for hearing is received from the person to whom the proposed action was issued, the agency may participate in the hearing actively or refrain from active participation, permitting the other parties to prosecute the proceedings.
(E) If the opportunity for an adjudication hearing is not availed of within the time period established by paragraph (A) of this rule, all persons entitled to object or request a hearing shall be deemed to have waived all rights to a hearing and all rights to contest the director’s action, and they shall be deemed to have consented to the proposed action, which may become final and as valid as if a hearing had been held at which sufficient reliable, probative, and substantial evidence had been presented in support thereof.
(F) The director or his authorized representative shall schedule adjudication hearings. In scheduling hearings consideration shall be given to:
(1) Providing adequate time for all parties to prepare for the hearing; and
(2) Any request by a party relating to the time and location of the hearing.
HISTORY: Eff 7-5-73; 6-30-81
Rule promulgated under: RC Chapter 119.
Rule amplifies: RC Chapter 3745.
119.032 Review Date: 5-25-03
(A) Adjudication hearings shall be conducted before a hearing examiner except where the director determines to hear the case. All references in Chapter 3745-47 of the Administrative Code to hearing examiners shall include the director when the director performs any act that a hearing examiner may perform.
(B) Immediately upon receiving notice of initiation of hearing proceedings from the hearing clerk, the chief hearing examiner shall assign a hearing examiner to the case.
(C) The hearing examiner shall conduct hearings in such a manner as to prevent unnecessary delay, maintain order, and ensure the development of a clear and adequate record.
(D) The authority of the hearing examiner shall include, but not be limited to, authority to:
(1) Administer oaths and affirmations;
(2) Issue subpoenas and subpoenas duces tecum to require the attendance of witnesses at hearings and depositions;
(3) Compel all parties to state their positions in writing with respect to the controversy;
(4) Examine witnesses and direct witnesses to testify;
(5) Make rulings on the admissibility of evidence;
(6) Make rulings on procedural motions, whether such motions are oral or written;
(7) Hold conferences to discuss settlement or for the simplification of issues pursuant to rule 3745-47-19 of the Administrative Code;
(8) Request the parties or their attorneys to file suggested findings, orders, conclusions of law and briefs before or following the hearing and within such time limits as the hearing examiner may determine;
(9) Request any party or counsel to prepare entries, findings, or orders;
(10) Dismiss a party for failure to comply with Chapter 3745-47 of the Administrative Code or with any order that the hearing examiner is authorized to issue, or for failure to appear at an adjudication hearing or prehearing conference.
(11) Take such other action as may be necessary to accomplish the purposes of paragraph (C) of this rule.
(E) The hearing examiner shall have such other powers, duties, and authority as are granted by statute or rules.
(F) All rulings on evidence and motions and on any other procedural matters, including dismissal of a party, shall be subject to review by the director upon review of the report of the hearing examiner pursuant to rule 3745-47-26 of the Administrative Code.
HISTORY: Eff 7-5-73; 6-30-81
Rule promulgated under: RC Chapter 119.
Rule amplifies: RC Chapter 119., Chapter 3745.
119.032 Review Date: 5-25-03
(A) Any person may file a motion for leave to intervene in an adjudication hearing conducted under Chapter 3745-47 of the Administrative Code. A motion shall set forth the grounds for the proposed intervention and the position and interest of the movant in the proceedings. A motion shall be accompanied by a pleading setting forth the matter for which intervention is sought. The movant shall serve a copy of the motion and pleading upon the parties as provided in rule 3745-47-17 of the Administrative Code.
(B) A motion for leave to intervene in a hearing must ordinarily be filed prior to the commencement of the first prehearing conference, or, if no prehearing conference is held, fifteen days prior to commencement of the hearing. Any motion filed after that time must contain, in addition to the information set forth in paragraph (A) of this rule, a statement of good cause for the failure to timely file the motion and shall be granted only upon a finding:
(1) That extraordinary circumstances justify the granting of the motion; or
(2) That the intervenor shall be bound by agreements, arrangements, and other matters previously made in the proceedings.
(C) Leave to intervene may be granted by the hearing examiner upon consideration of the following factors, where relevant:
(1) The nature and extent of the movant’s interest in the subject matter of the hearing and the degree to which the disposition of the hearing may as a practical matter impair or impede his ability to protect that interest;
(2) The adequacy of the representation of the movant’s interest by existing parties;
(3) The relationship of the movant’s interest to the subject matter of the hearing;
(4) The avoidance of multiplicity of suits;
(5) Whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties;
(6) The contribution the movant may make to the just determination of the issues.
(D) In any hearing in which intervention is granted under this rule, the hearing examiner, in the interest of just and expeditious adjudication, may impose reasonable conditions or restrictions on the extent of the intervenor’s participation in the proceedings.
HISTORY: Eff 7-5-73; 6-30-81
Rule promulgated under: RC Chapter 119.
Rule amplifies: RC Chapter 119., Chapter 3745.
119.032 Review Date: 5-25-03
The hearing examiner, the hearing clerk, and the parties shall continue to send all papers to a person who has been denied permission to intervene, and to a party who has been dismissed from a case for any reason, other than that party’s own voluntary withdrawal, in the same manner as Chapter 3745-47 of the Administrative Code requires those papers to be sent to the remaining parties.
HISTORY: Eff 6-30-81
Rule promulgated under: RC Chapter 119.
Rule amplifies: RC Chapter 119., Chapter 3745.
119.032 Review Date: 5-25-03
(A) All motions, unless made before the hearing examiner upon the record, shall be made in writing. A written motion shall state with particularity the relief or order sought and shall be accompanied by a memorandum setting forth the grounds therefor.
(B) Within ten days after service of a written motion, or such other time as fixed by the hearing examiner, any party may file an answer to a motion. A movant may reply to an answer only with the permission of the hearing examiner. Procedural motions shall not cause delay of a hearing without a finding by the hearing examiner that good cause for such delay exists.
(C) Before deciding a written motion, the hearing examiner shall consider all memoranda filed. The hearing examiner shall file a written decision, including the procedural order issued, with the hearing clerk and shall serve copies on all parties. The hearing examiner’s ruling on all oral motions shall be included in the transcript but the hearing examiner may elect to take the motion under advisement and issue a written ruling later. The hearing examiner shall include in each written decision on a motion a short statement of the reasons for each ruling.
(D) A party may file a motion for summary disposition. After consideration of such motion, the hearing examiner may submit to the director a report pursuant to rule 3745-47-24 of the Administrative Code without evidentiary hearing. Such report shall be submitted if the hearing examiner determines, upon consideration of the proposed action, requests for adjudication hearing or objections, depositions, answers to interrogatories, stipulations of fact, admissions, affidavits accompanying such motion or an answer to such motion, and any argument presented at a hearing on the motion, that there is no genuine issue as to any material fact and that the moving party is entitled to the outcome requested as a matter of law. A motion for summary disposition shall be filed no later than fifteen days prior to the date set for commencement of evidentiary hearing, unless leave for filing thereafter is obtained from the hearing examiner.
HISTORY: Eff 7-5-73; 6-30-81
Rule promulgated under: RC Chapter 119.
Rule amplifies: RC Chapter 119., Chapter 3745.
119.032 Review Date: 5-25-03
A hearing may be continued or postponed by the hearing examiner upon the hearing examiner’s own motion, or upon written motion of any party for good cause shown. Before granting any continuance, consideration shall be given to harm to the public welfare or the environment which may result from delay in proceedings.
HISTORY: Eff 7-5-73; 6-30-81
Rule promulgated under: RC Chapter 119.
Rule amplifies: RC Chapter 119., Chapter 3745.
119.032 Review Date: 5-25-03
(A) Upon written notice by the hearing examiner to all parties, the parties or their attorneys may be ordered to appear at a specified time and place for a conference, presided over by the hearing examiner, prior to or during the course of the hearing, to consider such matters as the hearing examiner shall direct, including, but not limited to:
(1) The settlement of the controversy;
(2) The specification and simplification of the issues;
(3) The disclosure of names, identities and location of witnesses together with a brief statement of what is proposed to be established by the testimony of each;
(4) The limitation of the number of and the exchange of reports of expert witnesses expected to be called by any party;
(5) Obtaining:
(a) admissions of fact;
(b) stipulations as to the admissibility into evidence of documents and other exhibits to avoid unnecessary proof;
(6) The exchange of documentary evidence to be submitted at the hearing.
All parties shall attend the prehearing conference fully prepared to discuss in detail their own positions with respect to all issues of fact and law raised in their own requests for adjudication hearing, all issues of fact and law raised by other parties on which they wish to take a position, all respects in which they desire the proposed action to be altered, and the reasons therefor.
(B) The hearing examiner may require the parties to prepare prehearing briefs prior to or subsequent to the prehearing conference covering such matters as the hearing examiner may specify.
(C) The proceedings at a prehearing conference shall be off-the-record, but the hearing examiner may prepare, or order prepared, a prehearing conference report encompassing the agreements reached and decisions made at the prehearing conference, including any admissions, stipulations, or proposals agreed to. All offers of settlement, proposals of adjustment, and proposed stipulations not agreed to shall be privileged, shall not constitute admissions, and shall not be admissible in evidence against the person making the offer or proposal.
(D) If, at a prehearing conference or at any other time prior to issuance of a final action, the parties agree to a settlement, the hearing examiner may recommend in writing to the director that the settlement terms be adopted as a final order; or the parties may prepare a suggested consent order, signed by the parties other than the agency, which may be submitted along with the file to the director for adoption after consideration of the record.
(E) The parties may meet together at such other times as they shall mutually agree for purposes of accomplishing any of the objects listed in paragraphs (A) and (D) of this rule.
(F) Upon the hearing examiner’s own motion, or upon motion of a party, the hearing examiner may order cases involving common issues of fact and law to be consolidated.
(G) For purposes of this rule, the phrase “request for adjudication hearing” includes objections under section 3745.07 of the Revised Code and motions to intervene with accomanying pleadings under rule 3745-47-15 of the Administrative Code.
(H) Amendment of adjudication hearing requests and objections may be made in the same manner as the “Ohio Rules of Civil Procedure” allow amendment of complaints. Also, if the agency issues an amended proposed action after initiation of hearing proceedings, the hearing examiner shall grant all parties a reasonable time, which, notwithstanding any other provision of Chapter 3745-47 of the Administrative Code, may be less than thirty days, to amend their adjudication hearing requests, objections, or petitions to intervene so as to raise issues relating to the amendments.
HISTORY: Eff 7-5-73; 6-30-81
Rule promulgated under: RC Chapter 119.
Rule amplifies: RC Chapter 119., Chapter 3745.
119.032 Review Date: 5-25-03
(A) Except as otherwise provided in this rule, any party may obtain discovery or protection from discovery in the same manner and to the same extent as is prescribed in the “Ohio Rules of Civil Procedure”. Any party may require the production of such books, records, and papers as it desires and for that purpose the hearing examiner shall, at the request of the party, issue a subpoena or a subpoena duces tecum, as in criminal cases. No interrogatories or motions for production of documents may be served upon the agency unless accompanied by a sworn statement that the party serving the interrogatories or the motion has diligently exercised its rights under paragraph (B) of this rule and
(1) Has been denied access to or copies of material that should be, by operation of said division, available to it; or
(2) Has been unable in that fashion to obtain the requested information.
(B) The files, books, and records of the agency, other than communications with the attorney general, materials or information obtained or prepared during the pendency of litigation for use in that litigation, materials or information not available for public inspection pursuant to statute or rule, and materials or information privileged pursuant to statutory provisions relating to trade secrets, shall be made available by the agency during regular business hours for review and copying by any person, whether or not litigation is pending. The agency shall provide facilities for the inspection of all agency files and a machine or device for the copying of papers and documents for which it may charge a fee commensurate with the cost to the agency of providing such equipment. A record of the location of all files in use by state employees and removed from such facility for that purpose shall be maintained and any such state employee shall permit any person to see such file upon request.
(C) No subpoena duces tecum shall be issued to compel production of the files, books, and records of the agency for purposes of an adjudication hearing unless the hearing examiner finds that a person has been refused access to said records.
(D) No adjudication hearing shall be continued to a date more than sixty days after initiation of hearing proceedings for the purpose of discovery unless the hearing examiner finds in writing that the party requesting the continuance diligently pursued discovery but was unable to complete discovery due to the unusual complexity of the case.
(E) Parties shall cooperate in conducting discovery procedures with a view to accomplishing full and complete disclosure of all relevant facts. Informal consultation among parties concerning discovery shall be attempted before filing of formal motions to compel discovery.
(F) All costs of service, mileage, witness fees and other costs of discovery shall be borne by the party requesting such discovery. Witness and mileage fees shall be the same as paid by the common pleas courts of Ohio in criminal cases.
HISTORY: Eff 7-5-73; 6-30-81
Rule promulgated under: RC Chapter 119.
Rule amplifies: RC Chapter 119., Chapter 3745.
119.032 Review Date: 5-25-03
(A) The hearing examiner shall admit all relevant and material evidence, except evidence that is unduly repetitious, even though inadmissible under the rules of evidence applicable to judicial proceedings. The weight to be given evidence shall be determined by its reliability and probative value. In all hearings the testimony of witnesses shall be taken orally, except as provided by these rules or by the hearing examiner. Parties shall have the right to cross-examine all witnesses.
(B) If a party objects to the admission or exclusion of any evidence, he shall state briefly the grounds for such objection. The transcript shall include any argument or debate thereon, unless the hearing examiner, with the consent of all parties, orders that such argument not be transcribed. The ruling of the hearing examiner on any objection shall be a part of the transcript. An automatic exception to that ruling will follow.
(C) A copy of each documentary exhibit filed with the hearing examiner shall be furnished to each other party. A true copy of an exhibit may, in the discretion of the hearing examiner, be substituted for the original.
(D) Whenever evidence is ruled inadmissible, the party offering such evidence may make an offer of proof, which shall be included in the transcript. The offer of proof for excluded oral testimony shall consist of a brief statement describing the nature and substance of the evidence excluded. If the evidence consists of a document or exhibit, it shall be inserted in the record in total. If the director decides that the hearing examiner’s ruling in excluding the evidence was erroneous, the hearing may be reopened to permit the taking of such evidence, or, where appropriate, the director may evaluate the evidence and proceed to a final decision.
(E) Official notice may be taken of such matters as are within the expertise of the hearing examiners. The parties shall be given adequate opportunity to show that such facts are erroneously noticed.
(F) Parties may file proposed findings and orders, conclusions of law, or briefs for consideration by the hearing examiner within fourteen days following receipt of the transcript of the adjudication hearing by the hearing clerk or such other period of time as the hearing examiner may set.
(G) After the conclusion of an adjudication hearing and prior to the filing of a report and recommendations with the hearing clerk, the hearing examiner, upon motion of a party, may permit the parties to file newly discovered documentary evidence that by due diligence could not have been discovered prior to the adjudication hearing.
(H) No interlocutory appeal of any ruling or order of the hearing examiner may be made to the director.
(I) If a public meeting is held on a proposed action, the adjudication hearing upon that proposed action may not commence until at least thirty days after the public meeting.
HISTORY: Eff 7-5-73; 6-30-81
Rule promulgated under: RC Chapter 119.
Rule amplifies: RC Chapter 119., Chapter 3745.
119.032 Review Date: 5-25-03
The director, the assistant director, and the deputy directors of the agency, because of their duties in deciding adjudicatory matters, shall not be competent witnesses nor subject to deposition in any adjudication proceeding before the agency. Evidence from other persons relating to the mental processes of those persons shall not be admissible.
HISTORY: Eff 7-5-73; 6-30-81
Rule promulgated under: RC Chapter 119.
Rule amplifies: RC Chapter 119., Chapter 3745.
119.032 Review Date: 5-25-03
(A)(1) The burden at all hearings with respect to applications, permits, licenses, variances, and certificates shall be upon the applicant to prove entitlement to the permit, license, variance, or certificate.
(2) The agency shall bear the burden of proof at all adjudication hearings relating to proposed modifications initiated by the agency, proposed revocations, proposed orders, and findings and notice of hearing under section 3745.08, 6109.14, or 6111.32 of the Revised Code.
(3) A party raising an issue of fact shall have the burden of presenting a prima facie case establishing the fact; thereafter, the burden of proof on such issue is allocated as provided by paragraphs (A)(1) and (A)(2) of this rule.
(B) Notwithstanding anything to the contrary in paragraph (A) of this rule, there shall be a legal presumption in favor of facts asserted by a party that can be disproved by evidence available to and under the control of an opposing party. In order to rebut this presumption, the party having control of such evidence must show that the nonexistence of the presumed fact is more likely than the existence of such fact.
(C)(1) All reports filed with the agency, or a local air pollution control agency acting pursuant to division (Q) of section 3704.03 of the Revised Code, in compliance with requirements of statutes, rules, or permits shall be admissible without further authentication if the custodian of such reports certifies their identity in writing. Any party may prove such reports are not genuine.
(2) All reports of samples taken by staff members of the agency, or a local air pollution control agency acting pursuant to division (Q) of section 3704.03 of the Revised Code, and tested in facilities of the state shall be admissible if all persons who had custody of such samples have endorsed a record showing a chain of custody, and the persons who had custody of such samples need not testify. Mailing of samples shall not be considered a break in the chain of custody. Any party may prove that such reports do not pertain to the samples purportedly tested.
HISTORY: Eff 7-5-73; 6-30-81
Rule promulgated under: RC Chapter 119.
Rule amplifies: RC Chapter 119., Chapter 3745.
119.032 Review Date: 5-25-03
(A)(1) Within forty-five days following receipt of the transcript of an adjudication hearing by the hearing clerk, or, in cases where the hearing examiner has established a post-hearing briefing schedule, within forty-five days of the date set for completion of briefing, and upon due consideration of the record, the hearing examiner shall submit to the director by filing with the hearing clerk a written report setting forth findings of fact, conclusions of law, and recommendations of the action to be taken by the director.
(2) A copy of the report and recommendations of the hearing examiner shall be mailed to all parties or their attorneys, and to the persons entitled to receive papers by operation of rule 3745-47-16 of the Administrative Code, by certified mail within five days after the submission of such report to the director. Any such person may, within ten days of receipt of such copy of such report and recommendations, file a written statement of objections to such report and recommendations, which written statement of objections shall be considered by the director before issuance of a final action. Upon the director’s own motion, or upon motion of any such person, the director may grant extensions of the ten-day period. All objections shall state the legal and/or factual basis therefor. Where matters of fact form the basis therefor, a citation to the record shall be included. Persons filing objections shall serve their objections upon all other persons entitled to file objections. Answers to objections may not be filed.
(B) Within fifteen days after the conclusion of a public meeting, the presiding officer shall prepare, and submit to the director, a brief summary of the statements presented.
HISTORY: Eff 7-5-73; 6-30-81
Rule promulgated under: RC Chapter 119.
Rule amplifies: RC Chapter 119., Chapter 3745.
119.032 Review Date: 5-25-03
(A) After initiation of hearing proceedings, a record of the proceedings shall be maintained at the expense of the agency. Such record shall include testimony, rulings on the admissibility thereof, oral statements and oral arguments, offers of proof, stipulations, written motions, exhibits, requests, objections, answers, comments, written statements, correspondence, briefs, a copy of any draft or proposed action, copies of public notices pertaining to the proceedings, the fact sheet where the agency is required to prepare one, the report and recommendations of the hearing examiner, the record of a public meeting under rule 3745-47-12 of the Administrative Code, any comments submitted under paragraph (F) of rule 3745-47-05 of the Administrative Code, the report of the presiding officer if a public meeting was held, and written orders or rulings of the hearing examiner. The record shall also include materials included in the hearing file upon request of a party pursuant to paragraph (A)(3) of rule 3745-47-04 of the Administrative Code.
(B) The record shall be the exclusive basis for decision by the director in an adjudication hearing proceeding. After the filing of the hearing examiner’s report and recommendations, the director, upon the director’s own motion or upon motion of a party, may permit the parties to file further documentary evidence, and after granting opportunity to the opposing party for preparation, may take additional testimony or remand the matter to the hearing examiner for the taking of additional testimony. In deciding whether to permit the taking of additional testimony the director shall give consideration to harm to the public welfare or the environment that may result from delay in the hearing proceeding.
HISTORY: Eff 7-5-73; 6-30-81
Rule promulgated under: RC Chapter 119.
Rule amplifies: RC Chapter 119., Chapter 3745.
119.032 Review Date: 5-25-03
(A) Not earlier than expiration of the time for submission of objections under paragraph (A)(2) of rule 3745-47-24 of the Administrative Code, nor later than sixty days thereafter, the director shall issue a final action.
(B) The final action may adopt the report of the hearing examiner, or parts thereof. When the final action disapproves or modifies the recommendations of the hearing examiner in whole or in part, the final action shall include:
(1) The reasons for rejecting the recommendations of the hearing examiner, and
(2) Findings of fact and conclusions of law with the reasons therefor with respect to all matters where the director does not adopt the recommendations of the hearing examiner.
(C) The decision of the director shall be entered on the journal and into the record of the hearing. Notice to all parties and attorneys shall be given in accordance with rule 3745-47-07 of the Administrative Code.
HISTORY: Eff 4-26-76; 6-30-81
Rule promulgated under: RC Chapter 119.
Rule amplifies: RC Chapter 119., Chapter 3745.
119.032 Review Date: 5-25-03
The agency shall maintain a journal or journals into which all actions that the director desires to make final shall be entered. The director shall also enter all emergency orders upon the journal.
HISTORY: Eff 7-5-73; 6-30-81
Rule promulgated under: RC Chapter 119.
Rule amplifies: RC Chapter 119., Chapter 3745.
119.032 Review Date: 5-25-03
(A) The agency shall maintain a register, indexed according to the name of the permit holder, applicant or respondent and by the county in which the source or facility is located, of all pending applications for permits, leases, licenses, variances, certificates, and for approval of plans and specifications, of all hearing proceedings pending, and of all other proposed actions not yet finalized, which register shall state the docket number, the dates on which such matter was filed, and the hearing date and other relevant dates, and shall identify the files containing materials pertaining to the proceedings.
(B) The agency shall maintain a register of all adjudicatory actions of the agency indexed as required by paragraph (A) of this rule, stating the date for the permit or orders where applicable, and the hearing docket number if one was assigned, and identifying agency files containing pertinent information.
(C) The registers maintained pursuant to paragraphs (A) and (B) of this rule shall be conveniently located, available to the public during reasonable hours, and maintained in compliance with the provisions of paragraph (B) of rule 3745-47-20 of the Administrative Code.
HISTORY: Eff 7-5-73; 6-30-81
Rule promulgated under: RC Chapter 119.
Rule amplifies: RC Chapter 3745.
119.032 Review Date: 5-25-03
(A) When the director has determined that an emergency exists and has ordered that such action be taken as is necessary to meet the emergency pursuant to division (C) of section 6111.06, division (B) of section 3734.13 of the Revised Code, or division (B) of section 6109.05 of the Revised Code, any person to whom such order is directed may request a hearing. Notwithstanding that a hearing has been requested, emergency orders shall be effective immediately. Immediately upon receipt of such request the director or chief hearing examiner shall forthwith appoint a hearing examiner who shall convene a hearing within forty-eight hours to consider the issues raised by the hearing request. To obtain necessary evidence, the hearing examiner may continue the hearing, but shall reconvene the hearing as soon as possible and not later than twenty days after the hearing request unless the issues become moot. The director shall give priority to consideration of the hearing examiner’s report and shall not await written objections of the parties before issuing his decision. To the extent that other rules of Chapter 3745-47 of the Administrative Code conflict with this rule or would cause delay in an emergency hearing, they shall not be applicable to proceedings under this rule.
(B) Proceedings pursuant to the declaration of an air pollution emergency under section 3704.032 of the Revised Code shall not be subject to these procedural rules.
HISTORY: Eff 7-5-73; 6-30-81
Rule promulgated under: RC Chapter 119.
Rule amplifies: RC Chapter 6111., Chapter 6109., Chapter 3734.
119.032 Review Date: 5-25-03
(A) No party to an adjudication proceeding shall engage in or encourage other persons to engage in ex parte communications with the director, the assistant director, the deputy directors, or the hearing examiner about any matter in issue in such proceeding. The director, the assistant director, the deputy directors, and the hearing examiner shall not entertain such communications. The director, the assistant director, the deputy directors, and the hearing examiner may participate in prehearing conferences or any other discussions in which all the parties have a right to participate.
(B) All communications prohibited by paragraph (A) of this rule shall be reported immediately to the hearing examiner, who shall place the communication or a memorandum thereof in public files associated with the case, but separate from the record material upon which the agency will rely in reaching a decision. The hearing examiner shall take such additional action as the hearing examiner deems advisable, which may include recommending entry of a default on the part of the party guilty of the malfeasance.
(C) A hearing examiner shall at any time disqualify himself if for any reason he may not be able to preside in a fair and impartial manner and render an impartial report to the director, or if he receives or has during the previous two years, received ten per cent or more of his gross personal income for a calendar year, including retirement benefits, consultant fees, and stock dividends. (except that income from the state or from diversified investments where he does not know the identity of the primary sources of income shall not be included as contributing toward such percentage), from a party or any subsidiary or owner thereof. To disqualify himself, a hearing examiner shall file an affidavit stating the reason for disqualification.
(D) Hearing examiners shall behave in the manner prescribed for judges generally in the “Code of Judical Ethics” of the supreme court of Ohio, which code is hereby expressly incorporated by reference.
(E) It shall not be deemed a violation of this rule if the director, in the performance of duties and functions other than decision-making in adjudication proceedings, gathers information or expresses opinions on matters of fact or law that are also at issue in an adjudication proceeding.
HISTORY: Eff 7-5-73; 6-30-81
Rule promulgated under: RC Chapter 119.
Rule amplifies: RC Chapter 119., Chapter 3745.
119.032 Review Date: 5-25-03