(A)
Civil penalty rules applicability.
For purposes of this rule, facility
means concentrated animal feeding operations,
This rule applies to concentrated animal feeding
facilities, and major concentrated animal feeding
facilities
certified livestock
managers.
(B)
Consolidation.
Each and every day of violation of any rule or statute of
Chapter 903. of the Revised Code is a separate and distinct offense, and in
cases of continuing violations, each day's continuance is a separate and
distinct violation unless otherwise determined by the department or unless the
violations are of division (C) of section
903.06 or division (A) of
section 903.07 of the Revised Code.
Proceedings for the assessment of multiple civil penalties for multiple
violations against an owner or operator of a
concentrated animal feeding facility or certified livestock manager may
be consolidated into a single proceeding.
(C) Hearing procedures.
All adjudication hearings concerning violations cited in
accordance with section
903.16 and section
903.17 of the Revised Code shall
be conducted in accordance with Chapter 119. of the Revised Code. The director
may consider the factors listed in paragraph (D)(1) of this rule in the
adjudication hearing as presented by the parties.
(D) Civil penalty assessment.
The amount of a civil penalty shall be determined by the
reasonable exercise of the director's discretion in considering the following
factors
(1) The economic benefit
gained by the violator (if any) resulting from
the violation.
(2) The economic impact on the
violator.
Comment: In considering economic
impact, the director may consider such factors as cost of repairs,
construction, installation including, but not limited to, installation of
equipment, monitoring devices and related operational costs.
(3)(2) Acts of nature or
acts of third parties that resulted in or contributed to violations.
(4)(3)
Any history of such violations, including recalcitrance resulting in costs
incurred by the director to enforce any previously issued final orders of the
director.
(5)(4) Any good-faith
efforts to comply with applicable requirements.
(6)(5) Any supplemental
environmental projects that may be undertaken by the owner or operator
of a concentrated animal feeding facility or a
certified livestock manager to off-set some of the amount of civil
penalty payable to the livestock management fund if the director finds that any
project may enhance the owner's or the operator's, or
the certified livestock manager's compliance by undertaking a project
that is beyond any work or activities required by law or if the director agrees
that any proposed supplemental environmental projects will enhance the
environment.
(7)(6) The seriousness or
magnitude of the violation or violations.
(8)(7) The gravity of
effect of the violation or violations.
(9)(8) Such other matters
as justice requires.
(E)
Penalty matrix.
(1) Applicability.
The director may use the penalty matrix contained in this
paragraph to modify a penalty amount derived from paragraph (D) of this rule by
following this procedure:
(a)
Determine the magnitude or seriousness of the violation as specified in
paragraph (E)(2) of this rule;.
(b) Determine the gravity of effect pertinent
to the violation as specified in paragraph (E)(3) of this rule; and
(c) Determine whether the violation is the
first violation or past violation, and modify the penalty amount by reference
to the appropriate matrix contained in paragraphs (F) to (K) of this
rule.
(2) Categories of
magnitude or seriousness.
(a) Category I
(major):
(i) A violation of a department order
issued as part of or in connection with a formal enforcement action;
(ii) Failure to provide access to premises or
records when required by statute, rule or order;
(iii) Any discharge of manure that enters the
waters of the state, either without a permit or from a point source not
authorized by a permit unless the discharge has been reported as an emergency
in accordance with rule
901:10-2-17 of the
Administrative Code or unless
the discharge is an
agricultural stormwater discharge as defined in paragraph (D) of rule
901:10-1-01 of the
Administrative Code;
(iv)
Submitting records, reports or application forms which are false, misleading,
or fraudulent;
(v) Failure to
provide notification of a known spill or upset condition that results in a
non-permitted discharge into waters of the state;
(vi) Failure to comply with division (A) of
section 903.07 of the Revised
Code;
(vii) The presence of insects
or rodents indicating a failure to comply with the insect and rodent control
plan approved by the director in accordance with rule
901:10-2-19 of the
Administrative Code.
(viii) Failure
to apply for applicable permits or review compliance
certificate;
(ix)
Installing or operating facilities regulated under Chapter 903. of the Revised
Code prior to issuance of applicable permits;
(x) Failure to provide corrections specified
by the director's designated
representatives
director on any
applicable permits or review compliance
certificate; or
(xi) Upon
completing construction authorized by a permit to install, failure to comply
with paragraph (B)(4) of rule
901:10-2-01 of the
Administrative Code.
(b)
Category II (moderate):
(i) Failure to submit
a plan or report if required by permit or rule;
(ii) Placing manure such that manure is
likely to enter the waters of the state by any means;
(iii) Any violation of a department rule or
order that is not classified elsewhere in these rules as major or minor or any
failure to operate in accordance with approved best management
practices;
(iv) Failure to maintain
the freeboard requirements of approved best management practices; or
(v) Failure to comply with the insect and
rodent control plan approved by the director in accordance with rule
901:10-2-19 of the
Administrative Code.
(c)
Category III (minor):
(i) Any violation of
record keeping requirements in approved best management practices.
(ii) Failure to maintain records in
accordance with rule
901:10-2-16 of the
Administrative Code.
(3) Gravity.
The gravity of effect of the violation
shall
will be
determined by consideration of the individual or cumulative possibility of harm
to the public health or the environment caused by a violation or violations.
Gravity of effect shall
will be classified as high, medium or low. The
existence of one or more factors determined to be high level
shall
will
result in the gravity of effect considered to be of high level. Lacking any
factor determined to be of high level, the existence of one or more factors of
medium level shall
will result in the gravity of effect to be considered
to be of medium level. Lacking any factor
of high or medium level shall
will result in the gravity being of low level:
(a) Gravity of effect high level:
(i) Significant risk of injury or actual
injury to wildlife;
(ii) Surface or
groundwater contamination of a level that poses a significant risk of harm to
public health or the environment; or
(iii) High risk of or actual zoonotic disease
transmission as determined by the director upon consultation with federal,
state or local health agencies.
(b) Gravity of effect medium level:
(i) Surface or groundwater contamination that
causes short-term impact but does not meet the criteria of high level gravity
of effect yet exceeds the definition of low gravity of effect and does not pose
a significant threat to human health or the environment; or
(ii) Insect and rodent populations in excess
of target levels posing potential off-site impacts or posing a lower risk of
zoonotic disease transmission.
(c) Gravity of effect low level:
(i) Surface water contamination not found or
not found at a level in excess of applicable water quality standards;
or
(ii) Insect and rodent
populations not found off-site but not in compliance with the approved plan for
the facility.
(F) Civil penalty matrix for first violation
of Chapter 903. of the Revised Code
shall be assessed
per day per violation.
except
This paragraph does not apply to violations of
requirements for insect and rodent control plans
,
which shall be assessed in accordance with division (B)(2) of section
903.16 of the Revised Code or
violations of
requirements for certified livestock
managers
section
903.07 of the Revised
Code, which shall be assessed in accordance with division (B)(3) of
section
903.16 of the Revised Code
shall be assessed per day per violation.
|
Gravity of effect
|
|
Magnitude of Violation
|
High
|
Medium
|
Low
|
|
Category I (Major)
|
Up to and including $10,000
|
Up to $3,200
|
Up to $1,600
|
|
Category II (Moderate)
|
Up to $2,400
|
Up to $1,600
|
Up to $800
|
|
Category III (Minor)
|
Up to $1,000
|
Up to $500
|
Up to $200
|
(G)
Civil penalty matrix in the event of past violations of Chapter 903. of the
Revised Code
shall be assessed per day per
violation.
(except
This paragraph does not apply to violations of
requirements for insect and rodent control plans
,
which shall be assessed in accordance with division (B)(2) of section
903.16 of the Revised Code or
violations of
requirements for certified livestock
managers
section
903.07 of the Revised
Code, which shall be assessed in accordance with division (B)(3)
of section
903.16 of the Revised
Code
) shall be assessed per day per
violation.
|
Gravity of effect
|
|
|
|
Magnitude of Violation
|
High
|
Medium
|
Low
|
|
Category I (Major)
|
Up to $10,000
|
Up to $6,000
|
Up to $3,200
|
|
Category II (Moderate)
|
Up to $6,000
|
Up to $3,200
|
Up to $1,600
|
|
Category III (Minor)
|
Up to $3,000
|
Up to $1,600
|
Up to $400
|
(H)
Civil penalty matrix for insect and rodent control plans. As set forth in
division (C) of section
903.10 of the Revised Code, the
director may use this penalty matrix to assess a preliminary penalty amount for
enforcement of section
903.06 of the Revised Code and
shall
will
exercise reasonable discretion in accordance with paragraph (D) of this rule.
Concentrated animal feeding facility - civil penalty matrix for
insect and rodent control first violation per seven days.
|
Gravity of Effect
|
|
|
|
Magnitude of Violation
|
High
|
Medium
|
Low
|
|
Category I (Major)
|
Up to $5,000
|
Up to $2,500
|
Up to $1,000
|
|
Category II (Moderate)
|
Up to $2,500
|
Up to $1,500
|
Up to $500
|
|
Category III (Minor)
|
Up to $1,000
|
Up to $500
|
Up to $200
|
(I)
Concentrated animal feeding facility - civil penalty matrix for insect and
rodent control in the event of past violations per seven days.
|
Gravity of effect
|
|
|
|
Magnitude of Violation
|
High
|
Medium
|
Low
|
|
Category I (Major)
|
Up to $10,000
|
Up to $5,000
|
Up to $2,000
|
|
Category II (Moderate)
|
Up to $5,000
|
Up to $2,500
|
Up to $1,000
|
|
Category III (Minor)
|
Up to $2,000
|
Up to $1,000
|
Up to $500
|
(J)
Major concentrated animal feeding facility - civil penalty matrix for insect
and rodent control first violation per seven days.
|
Gravity of effect
|
|
|
|
Magnitude of Violation
|
High
|
Medium
|
Low
|
|
Category I (Major)
|
Up to $12,500
|
Up to $7,500
|
Up to $4,000
|
|
Category II (Moderate)
|
Up to $7,500
|
Up to $4,500
|
Up to $2,500
|
|
Category III (Minor)
|
Up to $4,000
|
Up to $2,500
|
Up to $1,500
|
(K)
Major concentrated animal feeding facility - civil penalty matrix for insect
and rodent control in the event of past violations per seven days.
|
Gravity of effect
|
|
|
|
Magnitude of
Violation
|
High
|
Medium
|
Low
|
|
Category I (Major)
|
Up to $25,000
|
Up to $15,000
|
Up to $7,500
|
|
Category II (Moderate)
|
Up to $15,000
|
Up to $9,000
|
Up to $4,500
|
|
Category III (Minor)
|
Up to $7,500
|
Up to $4,500
|
Up to $2,500
|
Notes
Ohio Admin. Code 901:10-5-04
Effective:
1/1/2025
Five Year Review (FYR) Dates:
4/23/2024 and
01/01/2030
Promulgated
Under: 119.03
Statutory
Authority: 903.08,
903.10
Rule
Amplifies: 903.01,
903.02,
903.03,
903.07,
903.08,
903.082,
903.09,
903.10,
903.12,
903.15,
903.16,
903.17
Prior
Effective Dates: 07/02/2002, 09/15/2005, 09/01/2011,
05/22/2017
