3745-47-23 Burden of proof - evidence.

(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