This website publishes administrative rules on their effective dates, as designated by the adopting state agencies, colleges, and
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| Rule |
Rule 3745-47-01 | Adjudication - applicability and construction of rules.
Effective:
February 26, 2024
(A) This chapter governs the procedure
for all adjudication proceedings and other procedures relating to adjudications
pursuant to Chapter 119. of the Revised Code, or any other statute or rule
providing for an adjudication proceeding before the agency. (B) This chapter shall be construed
liberally to accomplish the purposes of the chapters and sections of the
Revised Code governing the functions and duties of the agency, and to afford
maximum procedural fairness consistent with just, timely, and efficient
resolution of disputes. (C) For purposes of this chapter,
license, permit, variance, certificate, and registration include at a minimum
all provisions, terms, conditions, specifications, requirements, and
limitations set forth in the document, appended thereto, or incorporated by
reference.
Last updated February 26, 2024 at 8:41 AM
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Rule 3745-47-02 | Adjudication - definitions.
Effective:
February 26, 2024
As used in this chapter: (A) (1) "Action"
means the issuance, modification, or revocation of an order; the issuance,
denial, renewal, modification, suspension, or revocation of a license, permit,
lease, variance, certificate, registration, or authorization; or the approval
or disapproval of plans and specifications pursuant to law. (2) "Adjudication" has the same meaning as in division
(D) of section 119.01 of the Revised Code. (3) "Adjudication
hearing" means an adversarial hearing during which evidence is taken for
the purpose of determining issues of fact and law that will be used by the
hearing examiner to prepare the report and recommendation and, ultimately, will
be used in preparing final findings and orders. (4) "Adjudication
proceeding" means the entire process through which a person may seek to
have a hearing examiner consider evidence relevant to certain agency actions,
beginning with the activities specified in paragraph (A) of rule 3745-47-03 of
the Administrative Code and ending with the issuance of a final
action. (5) "Agency"
means the Ohio environmental protection agency. (B) [Reserved.] (C) [Reserved.] (D) "Director" means the
director of environmental protection or the director's
designee. (E) [Reserved.] (F) "Final action" means the
written decision on any matter that is signed by the director and entered in
the director's journal pursuant to rule 3745-49-14 of the Administrative
Code. (G) [Reserved.] (H) [Reserved.] (I) "Issue" or "issuance" means either of the
following: (1) In the case of a proposed action, to
place the action into the United States mail, addressed to the person who is
the subject of the proposed action. (2) In the case of a final action, to
enter the action into the director's journal after the action is signed by
the director. (J) [Reserved.] (K) [Reserved.] (L) [Reserved.] (M) [Reserved.] (N) [Reserved.] (O) [Reserved.] (P) (1) "Party"
means any one of the following: (a) The agency. (b) For purposes of an adjudication proceeding regarding a
proposed action, the person to whom the proposed action is issued and any
person who objects to the proposed action pursuant to section 3745.07 of the
Revised Code. (c) For purposes of an adjudication proceeding in response to a
verified complaint, the alleged violator upon whom a notice of hearing is
served pursuant to section 3745.08 of the Revised Code and the person who filed
the verified complaint that is the subject of the hearing, if that person filed
a written notice of intent to participate as a party with the director before
the hearing. (d) Any person who intervenes in an adjudication proceeding
pursuant to rule 3745-47-07 of the Administrative Code. (e) For purposes of an adjudication proceeding conducted pursuant
to section 6109.14 of the Revised Code, the person upon whom notice was served
in accordance with that section. No other person shall be deemed to be a party
to an adjudication proceeding. (2) "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 legal entity defined as a person under
section 1.59 of the Revised Code. (3) "Proposed
action" means a written statement that gives the director's intention
with respect to an action and allows persons to do one or more of the
following: (a) File comments or objections to the action. (b) Request an adjudication hearing in accordance with this
chapter. (c) Request a public meeting regarding the action. (4) "Public
meeting" means a non-adversarial public forum 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. (Q) [Reserved.] (R) [Reserved.] (S) "Stenographic record" means
a record provided by stenographic means or by the use of audio electronic
recording devices. The record includes all of the testimony, other evidence,
and rulings regarding the admissibility thereof, presented at the
hearing. (T) [Reserved.] (U) [Reserved.] (V) "Verified complaint" means
a written complaint filed pursuant to and meeting the requirements of section
3745.08 of the Revised Code and rule 3745-49-12 of the Administrative
Code.
Last updated February 26, 2024 at 8:49 AM
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Rule 3745-47-03 | Request for an adjudication hearing and objections.
Effective:
February 26, 2024
(A) An adjudication proceeding shall be
initiated if any of the following occur: (1) The person to whom
the proposed action was issued timely requests an adjudication hearing pursuant
to sections 119.06 and 119.07 of the Revised Code. (2) An officer of an
agency of the state or of a political subdivision acting in a representative
capacity or any person who would be aggrieved or adversely affected by the
issuance or renewal of a permit, license, or variance timely objects to the
proposed action pursuant to section 3745.07 of the Revised Code. (3) A person who disputes
the agency's determination that the person's activities are subject
to permitting or licensing requirements under statutes or rules administered by
the agency timely requests an adjudication hearing pursuant to section 119.06
of the Revised Code. (4) A person timely
requests an adjudication hearing or objects pursuant to other applicable
provisions of the Revised Code. Paragraphs (A)(1) to (A)(4) of this rule do not
authorize the filing of objections to amended proposed actions unless the
agency gave public notice of the amended proposed action in accordance with
rule 3745-49-08 of the Administrative Code. (B) All requests for an adjudication
hearing, including requests pursuant to section 119.06 or 119.07 of the Revised
Code, and all objections to proposed actions pursuant to section 3745.07 of the
Revised Code shall be made in writing. All requests and objections shall
include the following: (1) The basis for the
request for an adjudication hearing or objection to the proposed action, and
the questions to be considered at the requested adjudication
hearing. (2) A copy of the
proposed action. (3) The name, address,
telephone number, and electronic mail address, if available, of the person who
timely requests or objects in accordance with paragraph (A) of this
rule. (C) Not later than sixty days after issuance of the
proposed action or such other time as the hearing examiner may order, the
person who timely requests or objects in accordance with paragraph (A) of this
rule shall file the specific provisions of the matter objected to that the
person believes should be deleted, amended, or added if those specified
provisions were not included in the adjudication hearing request or objection
as initially filed. (D) The requesting or objecting person shall include a
clear and concise summary of the factual or legal basis for each request,
deletion, amendment, or addition, including a reference setting forth the
citation to any statute, regulation, or other legal principle that supports the
person's position. Filings required by this paragraph may be included in
filings required under rule 3745-47-10 of the Administrative Code, as long as
the filing complies with the deadline set forth in paragraph (B)(1) of this
rule, and if such is acceptable to the hearing examiner. (E) 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. (F) If the agency issues a new proposed action or an
amended proposed action after initiation of an adjudication proceeding, the
hearing examiner shall grant all parties a reasonable time, which,
notwithstanding any other provision of this chapter, 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.
Last updated February 26, 2024 at 8:49 AM
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Rule 3745-47-04 | Provision, mailing, and publishing of notice of adjudication hearings.
Effective:
February 26, 2024
(A) Service of notice. (1) A notice of an
adjudication hearing shall be served in accordance with division (B) of section
119.05 of the Revised Code, to the parties to the adjudication proceeding not
less than thirty days prior to the adjudication hearing. Service shall be
completed in accordance with section 119.07 of the Revised Code and the
"Ohio Rules of Civil Procedure." (2) Notices of
adjudication hearings shall comply with sections 3745.07 and 3745.019 of the
Revised Code. (B) Public notice. Not later than thirty
days prior to an adjudication hearing, a notice of the adjudication hearing
shall be published in a newspaper of general circulation in the county in which
the source, facility, or subject of the public notice is located. Public notice
is complete upon publication. (C) Public notices of adjudication
hearings shall include the following: (1) The name of the
agency. (2) The address and
telephone number of the location where agency files and records pertaining to
the adjudication are located and may be inspected and copied. (3) Instructions for
persons desiring to obtain additional information. (4) The name of the
person requesting the adjudication hearing. (5) A brief description
of the activities or operations that are the subject of the
adjudication. (6) The location of the
source, facility, or subject of the adjudication, including a street address,
if one is known. (7) The date of the
relevant public notices related to the subject of the
adjudication. (8) The date, time, and
location of the adjudication hearing. (9) A concise statement
of the issues raised by the party requesting the adjudication
hearing. (10) A statement that
evidence may be presented by the state and the other parties to the
hearing. (D) Where duplicate information is
required in multiple notices mailed or published together, 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 and
referred to in each notice to which it applies.
Last updated February 26, 2024 at 8:49 AM
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Rule 3745-47-05 | Filing and service of documents.
Effective:
February 26, 2024
(A) All documents shall be delivered to
the hearing examiner for each case, even when cases have been consolidated. The
hearing examiner shall do the following: (1) Immediately upon
initiation of an adjudication proceeding, open an adjudication file and assign
a docket number to the proceeding. (2) Be the custodian of
all adjudication files for the agency. (3) Upon initiation of an
adjudication proceeding, include in the adjudication file the request for
adjudication, any objection, and a copy of the proposed action. (4) During the pendency
of the adjudication proceeding carefully preserve in the adjudication file all
documents delivered to the hearing examiner for filing and all hearing
examiner's orders, recording on all such documents the date of receipt
thereof in accordance with paragraph (E) of this rule. (B) The acceptance of documents for
filing shall not be construed as an admission by the agency of the validity or
proper filing of such document or of compliance with any procedural
requirements imposed by statute or rule. (C) All items filed in the proceedings
shall be on eight-and-one-half-inch by eleven-inch paper and shall be titled
"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. (D) All documents filed shall include the
name, address, electronic mail address, and telephone number of the person or,
if represented by an attorney, that person's attorney. If a person is
represented by a firm of attorneys, a particular attorney with the firm having
primary responsibility for the case shall be indicated on such document. All
documents filed shall be signed by the person or by the person's
attorney. (E) All documents shall be deemed filed
with the agency upon being date-stamped by the Ohio EPA "Legal
Records." (F) In computing any period of time
prescribed for filing a document, the day on 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 that the agency is not open for business, in which event the
period runs until the end of the next day that the agency is open for business.
When the time prescribed or allowed is less than seven days, days that the
agency is not open for business shall be excluded from the
computation. (G) Any request for an extension of time
to file a document shall be filed within the time allowed for the filing of the
document with the agency. (H) Documents filed with the hearing
examiner shall not be considered unless proof of service in accordance with
paragraphs (I) and (J) of this rule is endorsed thereon. The proof of service
shall state the date and manner of service and shall be signed by the person
filing such document or by the person's attorney. (I) The hearing examiner and the parties
shall send a copy of each document they have filed in accordance with this rule
to each party or, if a party is represented by an attorney, to the party's
attorney. Service by mail is complete upon mailing. Service may also be made by
any other means permitted by the "Ohio Rules of Civil Procedure" and
section 119.05 of the Revised Code. (J) Copies of all documents filed shall
also be sent to any person who has been denied permission to intervene and any
party who has been dismissed from a case for any reason, other than that
party's voluntary withdrawal, in the same manner as this chapter requires
those documents to be sent to the remaining parties. If a person being served
is represented by an attorney, service shall be made upon the attorney instead
of upon the person.
Last updated February 26, 2024 at 8:50 AM
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Rule 3745-47-06 | Authority and duties of hearing examiners.
(A) Adjudication hearings shall be conducted before a hearing examiner. (B) Upon receiving a request or objection pursuant to rule 3745-47-03 of the Administrative Code, a hearing examiner shall be assigned to the case. (C) The hearing examiner shall conduct adjudication 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 do the following: (1) Schedule adjudication hearings, in which consideration shall be given to the following: (a) Providing adequate time for all parties to prepare for the adjudication hearing. (b) Any request by a party relating to the time and location of the adjudication hearing. (2) Administer oaths and affirmations. (3) Issue subpoenas to require the attendance of witnesses at adjudication hearings and depositions. (4) Issue subpoenas duces tecum to require the production of documents or tangible things. (5) Compel all parties to state their positions in writing with respect to the dispute. (6) Examine witnesses and direct witnesses to testify. (7) Make rulings on the admissibility of evidence. (8) Make rulings on procedural motions, whether such motions are oral or written. (9) Hold conferences pursuant to rule 3745-47-10 of the Administrative Code to discuss settlement or for the simplification of issues. (10) Request any party or any party's attorneys to prepare and file suggested entries, findings, orders, conclusions of law, and briefs before or following the adjudication hearing and within such time limits as the hearing examiner may determine. (11) Dismiss a party for failure to comply with this chapter or with any order that the hearing examiner is authorized to issue, or for failure to appear at an adjudication hearing or conference. (12) Order cases involving common issues of fact and law to be consolidated. (13) 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, motions, and other procedural matters, including dismissal of a party, shall be subject to review by the director upon review of the report and recommendation of the hearing examiner pursuant to rule 3745-47-16 of the Administrative Code.
Last updated December 6, 2023 at 1:04 PM
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Rule 3745-47-07 | Intervention.
(A) Any person may file a motion to intervene in an adjudication proceeding conducted under this chapter. A motion shall be accompanied by a memorandum setting forth the matter for which intervention is sought, the grounds for proposed intervention, the position and interest of the movant in the adjudication proceeding, and any other matter that the movant deems relevant in light of the factors to be considered by the hearing examiner listed in paragraph (D) of this rule. The movant shall serve a copy of the motion upon each party as provided in rule 3745-47-05 of the Administrative Code. (B) Except as provided in paragraph (C) of this rule, a motion to intervene in an adjudication proceeding shall be filed prior to the commencement of the first conference or not later than fifteen days prior to commencement of the adjudication hearing if no conference is held. (C) Motions to intervene in an adjudication proceeding filed after the time periods set forth in paragraph (B) of this rule shall contain, in addition to the information required by 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 that extraordinary circumstances justify the granting of the motion. (D) Motions 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 adjudication proceeding and the degree to which the adjudication may impair or impede the movant's 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 adjudication hearing. (4) The avoidance of duplicative adjudication proceedings. (5) Whether the intervention would unduly delay or prejudice the adjudication of the rights of the parties. (6) The contribution the movant may make to the just determination of the issues. (E) In any adjudication proceeding in which intervention is granted under this rule, the intervener shall be bound by previous rulings. The hearing examiner may impose reasonable conditions or restrictions on the extent of the intervener's participation in the adjudication proceeding.
Last updated December 6, 2023 at 1:04 PM
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Rule 3745-47-08 | Motions.
(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) Not later than ten days after service of a written motion, or such other time as fixed by the hearing examiner, any party may file a response to a motion. A movant may reply to the response only with the permission of the hearing examiner. Procedural motions shall not cause delay of an adjudication 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 applicable memoranda filed. The hearing examiner shall file a written decision, including any order issued, and shall serve copies on all parties. The hearing examiner's ruling on all oral motions shall be included in the stenographic record 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) Motion for summary disposition. (1) Any party may file a motion for summary disposition. A motion for summary disposition shall be filed not later than fifteen days before the date set for commencement of an adjudication hearing, unless leave for filing thereafter is obtained from the hearing examiner. (2) When considering such a motion, the hearing examiner shall consider the proposed action; requests for adjudication hearing; objections; depositions; answers to interrogatories; stipulations of fact; admissions; the response to the motion and any replies to the response; affidavits accompanying the motion, response, or reply; and any argument presented at an adjudication hearing on the motion. If, after consideration of the foregoing, the hearing examiner determines 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, the hearing examiner shall submit to the director a report and recommendation pursuant to rule 3745-47-16 of the Administrative Code without holding an adjudication hearing.
Last updated December 6, 2023 at 1:04 PM
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Rule 3745-47-09 | Continuances.
(A) An adjudication hearing may be continued or postponed by the hearing examiner upon the hearing examiner's own motion, or upon the hearing examiner's determination that the written motion of any party shows good cause. (B) Before granting any continuance, the hearing examiner shall consider any harm to public welfare or the environment which may result from delay in the adjudication proceeding.
Last updated December 6, 2023 at 1:04 PM
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Rule 3745-47-10 | Conferences.
Effective:
February 26, 2024
(A) Upon written notice by the hearing
examiner to all parties, the parties or the parties' attorneys may be
ordered to appear at a specified time and place for a conference, presided over
by the hearing examiner, before or during the course of the adjudication
hearing, to consider such matters as the hearing examiner shall direct
including but not limited to the following: (1) The settlement of the
adjudication proceeding. (2) The specification and
simplification of the questions presented. (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) The submission of
admissions of fact. (6) The submission of
stipulations as to the admissibility into evidence of documents and other
exhibits to avoid unnecessary proof. (7) The exchange of
documentary evidence to be submitted at the adjudication hearing. (B) Each party shall attend the initial
conference fully prepared to discuss in detail the following: (1) The party's own
positions with respect to all issues of fact and law raised in the party's
requests for adjudication hearing. (2) All issues of fact
and law raised by other parties on which the party wishes to take a
position. (3) All respects in which
the party desires the proposed action to be altered, and the reasons
therefor. (C) Prior to or subsequent to any conference, the hearing
examiner may require a party to prepare briefs covering such matters as the
hearing examiner may specify. For any conference, the hearing examiner may
prepare, or order prepared, a conference report encompassing the agreements
reached and decisions made at the conference, including any agreed upon
admissions, stipulations, or proposals. All offers of settlement, proposals of
adjustment, and proposed stipulations not agreed upon shall not constitute
admissions, and shall not be admissible in evidence against the person making
the offer or proposal.
Last updated February 26, 2024 at 8:50 AM
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Rule 3745-47-11 | Discovery; availability of agency files.
Effective:
February 26, 2024
(A) Any party may obtain public records
of the agency, pursuant to section 149.43 of the Revised Code and rule
3745-49-03 of the Administrative Code, and 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" and section 119.09 of the Revised
Code. (B) No adjudication hearing shall be
continued to a date more than sixty days after initiation of the adjudication
proceeding 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. (C) Parties shall cooperate in conducting
discovery procedures with the objective being 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. (D) 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
in the common pleas courts of Ohio in criminal cases.
Last updated February 26, 2024 at 8:50 AM
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Rule 3745-47-12 | Adjudication hearing procedures.
Effective:
February 26, 2024
(A) Adjudication hearing
procedures: (1) A record of the
testimony and other evidence submitted shall be memorialized by stenographic
record. (2) The hearing examiner
shall provide the parties the opportunity to make an opening
statement. (3) A witness at the
hearing shall testify under oath or affirmation which will be administered by
the hearing examiner. (B) During an adjudication hearing the
following procedures may occur: (1) On the hearing
examiner's own motion or on the motion of any party, witnesses may be
separated during the hearing. (2) In accordance with
rule 3745-47-15 of the Administrative Code, the parties may present their
cases-in-chief and submit evidence into the record. (3) The hearing examiner
may permit rebuttal evidence to be submitted. (4) The parties may
submit oral or written closing arguments. (5) The hearing examiner
may use the "Ohio Rules of Evidence" as guidance in making
evidentiary rulings. (C) The hearing examiner shall admit all relevant and
material evidence, except evidence that is unduly repetitious, even though
inadmissible under the "Ohio Rules of Evidence" applicable to
judicial proceedings. All records maintained by the agency or the agency's
duly authorized representative shall not be inadmissible for lack of
authentication if the custodian of such records certifies the identity of the
records in writing. The weight to be given evidence shall be determined by the
evidence's reliability and probative value. In all adjudication hearings
the testimony of witnesses shall be taken orally, except as provided by this
chapter or by the hearing examiner. Parties shall have the right to
cross-examine witnesses. (D) If a party objects to the admission or exclusion of any
evidence, that party shall briefly state the grounds for such objection. The
stenographic record shall include any argument or debate thereon, unless the
hearing examiner, with the consent of all parties, orders that such argument
not be recorded. The ruling of the hearing examiner on any objection shall be
part of the stenographic record. (E) A copy of each documentary exhibit filed with the
hearing examiner shall be furnished to each party. A true copy of an exhibit
may, in the discretion of the hearing examiner, be substituted for the
original. (F) Whenever evidence is ruled inadmissible, the party
offering such evidence may make an offer of proof, which shall be included in
the stenographic record. 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, the
evidence 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
adjudication 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. (G) Official notice may be taken of such matters as are
within the expertise of the hearing examiner. The parties shall be given
adequate opportunity to show that such facts are erroneously
noticed. (H) Parties may file proposed findings, orders, conclusions
of law, or briefs for consideration by the hearing examiner not later than
fourteen days after receipt of the stenographic record of the adjudication
hearing or such other period of time as the hearing examiner may
set. (I) After the conclusion of an adjudication hearing and
prior to the submission of a report and recommendation, 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. (J) No interlocutory appeal of any ruling or order of the
hearing examiner may be made to the director. (K) Due to the duties in deciding
adjudicatory matters, the director, assistant director, and deputy directors
shall not be competent witnesses or deponents in any adjudication proceeding
before the agency. (L) Evidence from other persons of the
director, assistant director, and deputy directors' mental processes
including but not limited to deliberations shall not be
admissible.
Last updated February 26, 2024 at 8:50 AM
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Rule 3745-47-13 | Conclusion of adjudication proceedings.
(A) Withdrawal of request for adjudication. A party may file a withdrawal of its objection or request for an adjudication hearing at any stage of the adjudication proceeding. Provided there is not another party to the adjudication proceeding who wishes the adjudication proceeding to continue, not later than forty-five days after the filing of a withdrawal of the objection or request for an adjudication hearing, the hearing examiner shall submit to the director a written report and recommendation of the action to be taken by the director. This paragraph does not apply to withdrawals made as a result of settlement agreement by all parties pursuant to paragraph (C) of this rule. (B) Failure to prosecute. Where a party fails to comply with these rules or with orders of the hearing examiner, the hearing examiner may, upon motion of any party or upon the hearing examiner's motion and after notice to the parties, submit to the director a written report and recommendation that recommends that the director dismiss the adjudication proceeding. (C) Settlement agreements. If all parties agree, a settlement agreement may be entered into at any stage of the adjudication proceeding prior to the issuance of a final order by the director. Not later than forty-five days after the filing of a settlement agreement entered into by all parties, the hearing examiner shall submit to the director a written report setting forth findings of fact and conclusions of law, and a recommendation of the action to be taken by the director. The hearing examiner may recommend that the settlement agreement be adopted as a final order.
Last updated December 6, 2023 at 1:05 PM
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Rule 3745-47-15 | Burden of proof - evidence.
Effective:
February 26, 2024
(A) The burden at all adjudication
hearings with respect to applications for permits, licenses, variances,
certificates, or other authorizing actions shall be upon the applicant to prove
entitlement to the permit, license, variance, certificate, or authorizing
action. (B) Except as provided in paragraph (A)
of this rule, the agency bears the burden of proof at all adjudication hearings
relating to the following: (1) Proposed
modifications initiated by the agency. (2) Proposed
revocations. (3) Proposed
orders. (4) Findings under
division (B) of section 3714.12, division (B) of section 3734.13, division (C)
of section 3745.08, division (B) of section 6109.05, section 6109.14, or
division (C) of section 6111.06 of the Revised Code. (5) Notice of the hearing
under division (B) of section 3714.12, division (B) of section 3734.13,
division (C) of section 3745.08, division (B) of section 6109.05, section
6109.14, or division (C) of section 6111.06 of the Revised Code. (C) A party raising an issue of fact
shall have the burden of presenting a prima facie case establishing that fact;
thereafter, the burden of proof on such issue is allocated according to
paragraphs (A) and (B) of this rule. (D) Notwithstanding 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 shall show that the nonexistence of the presumed fact is more
likely than the existence of such fact.
Last updated February 26, 2024 at 8:51 AM
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Rule 3745-47-16 | Report and recommendation of hearing examiner.
Effective:
February 26, 2024
(A) Except as otherwise provided in this
paragraph, not later than forty-five days after receipt of the stenographic
record of an adjudication hearing, and upon due consideration of the record,
the hearing examiner shall file a report and recommendation and shall submit a
copy of that report and recommendation to the director. In cases where the
hearing examiner has established a post-hearing briefing schedule, the report
and recommendation shall be filed and submitted not later than forty-five days
after the completion of briefing. The report shall include findings of fact and
conclusions of law, and the recommendation shall include the recommendations
regarding the action to be taken by the director. (B) A copy of the report and
recommendation shall be sent to all parties or their attorneys, and to the
persons entitled to receive documents pursuant to rule 3745-47-05 of the
Administrative Code. Copies shall be sent in accordance with section 119.05 of
the Revised Code not later than five days after the submission of the report
and recommendation to the director. (C) Any person to whom a copy of the
report and recommendation shall be provided pursuant to paragraph (B) of this
rule may file a written statement of objections to the report and
recommendation with the hearing examiner in accordance with rule 3745-47-05 of
the Administrative Code, not later than ten days after receipt of the copy.
Upon the director's own motion, or upon motion of any person entitled to
file an objection, the director may grant extensions of the ten-day period. A
motion for an extension of time to file a written statement of objection may be
filed with the hearing examiner in accordance with rule 3745-47-05 of the
Administrative Code. All written statements of objections filed pursuant to
this paragraph shall be considered by the director before issuance of a final
action. All objections shall state each legal and each factual basis for the
objection. Where matters of fact form a basis for the objection, 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. (D) After the hearing examiner's
report and recommendation has been filed, the director, upon the
director's own motion or upon motion of a party, may permit the parties to
file further documentary evidence in accordance with the rule 3745-47-05 of the
Administrative Code. The director may 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
adjudication proceeding. (E) Not earlier than expiration of the
time for submission of objections under paragraph (C) of this rule, the
director shall approve, modify, or disapprove the hearing examiner's
report and recommendation as a final action. (F) When the final action modifies or
disapproves the hearing examiner's report and recommendation, the final
action shall include findings of fact and conclusions of law with the reasons
for such modification or disapproval. (G) The decision of the director shall be
entered in the director's journal and in the record of the adjudication
proceeding.
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Rule 3745-47-17 | Record.
Effective:
February 26, 2024
(A) After the initiation of an
adjudication proceeding, a record of the adjudication proceeding shall be
maintained at the expense of the agency. Such record shall include the
following pertaining to the adjudication proceeding: (1) The adjudication file
maintained pursuant to rule 3745-47-05 of the Administrative Code. (2) Any stenographic
record as defined in paragraph (S) of rule 3745-47-02 of the Administrative
Code. (3) Copies of public
notices. (4) The fact sheet, where the agency is
required to prepare one. (5) The record of a public
meeting. (6) Any comments submitted pursuant to
paragraph (D) of rule 3745-49-05 of the Administrative Code. (7) The report of the presiding officer
if a public meeting was held, and written orders or rulings of the hearing
examiner. (8) Any written statement of objection to the report and
recommendation of the hearing examiner pursuant to paragraph (C) of rule
3745-47-16 of the Administrative Code. (9) Any request for an extension of time to submit written
statements of objection to the report and recommendation of the hearing
examiner pursuant to paragraph (C) of rule 3745-47-16 of the Administrative
Code. (10) Any further documentary evidence and
additional testimony, if any, permitted by the director, pursuant to paragraph
(D) of rule 3745-47-16 of the Administrative Code, after the filing of the
hearing examiner's report and recommendation. (B) The record shall be the exclusive
basis for the decision by the director in an adjudication
proceeding. (C) The director's decision
pertaining to the adjudication proceeding shall be added to the adjudication
file.
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Rule 3745-47-19 | Emergency orders.
Effective:
February 26, 2024
(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 (B) of section 3714.12, division (B) of section 3734.13,
division (B) of section 6109.05, or division (C) of section 6111.06 of the
Revised Code, any person to whom such order is directed may request an
adjudication hearing. Notwithstanding a request for an adjudication hearing,
emergency orders shall be effective immediately. Immediately upon receipt of
such request, the hearing examiner shall convene an adjudication hearing within
the applicable time period specified in division (B) of section 3714.12,
division (B) of section 3734.13, division (B) of section 6109.05, or division
(C) of section 6111.06 of the Revised Code to consider the issues raised by the
adjudication hearing request. The director shall give priority to consideration
of the hearing examiner's report and recommendation and shall not await
written objections of the parties before issuing a decision. To the extent that
other rules of this chapter conflict with this rule or would cause delay in an
emergency adjudication hearing, the other rules shall not be applicable to
adjudication 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
this chapter.
Last updated February 26, 2024 at 8:51 AM
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Rule 3745-47-20 | Rules of ethics.
Effective:
February 26, 2024
(A) Ex parte communications. (1) No party to an
adjudication proceeding shall engage in or encourage other persons to engage in
ex parte communications with the hearing examiner about any matter that is the
subject of the adjudication proceeding. The hearing examiner shall not
entertain such communications. (2) No persons identified
in paragraphs (P)(1)(b) to (P)(1)(e) of rule 3745-47-02 of the Administrative
Code shall engage in or encourage other persons to engage in ex parte
communications with the director, the assistant director, or the deputy
directors about any matter that is the subject of the adjudication proceeding.
The director, the assistant director, and the deputy directors shall not
entertain such communications during the pendency of the adjudication
process. (3) The director, the
assistant director, the deputy directors, and the hearing examiner may
participate in 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 describing the
communication 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. (C) A hearing examiner shall be
disqualified upon the hearing examiner filing an affidavit stating the reason
for disqualification. A hearing examiner shall file a disqualification
affidavit for either of the following reasons: (1) If for any reason the
hearing examiner may not be able to preside in a fair and impartial manner and
render an impartial report and recommendation to the director. (2) If the hearing
examiner receives, or has during the previous two years received, ten per cent
or more of the hearing examiner's gross personal income for a calendar
year from a party or any subsidiary or owner thereof. For purposes of this
paragraph, "party or any subsidiary or owner thereof" does not
include the state. The hearing examiner's gross personal income includes
retirement benefits, consultant fees, and stock dividends, but does not include
income from diversified investments where the hearing examiner does not know
the identity of the primary sources of income. (D) Hearing examiners shall behave in the
manner prescribed for judges generally in the "Ohio Code of Judicial
Conduct." (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 an adjudication proceeding, gathers information or
expresses opinions on matters of fact or law that are the subject of any
adjudication proceeding.
Last updated February 26, 2024 at 8:51 AM
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