(A)
Civil penalty rules applicability.
For
For purposes of this rule,
facility means concentrated animal feeding operations, concentrated animal
feeding facilities, and major concentrated animal feeding facilities.
(B) Consolidation.
Each
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 may be consolidated into a single
proceeding.
(C) Hearing
procedures.
All
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 (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) Acts
of nature or acts of third parties that resulted in or contributed to
violations.
(4) 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) Any good-faith efforts to comply with
applicable requirements.
(6) Any
supplemental environmental projects that may be undertaken by the owner or
operator 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 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) The seriousness or
magnitude of the violation or violations.
(8) The gravity of effect of the violation or
violations.
(9) Such other matters
as justice requires.
(E)
Penalty matrix.
(1) Applicability.
The
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)(a) of this rule;.
(b) Determine the gravity of effect pertinent
to the violation as specified in paragraph (E)
(2)(b)
(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) Penalty matrix.
(a)
(2) Categories of magnitude or seriousness.
(i)
(a)
Category I (major):
(a)
(i) A
violation of a department order issued as part of or in connection with a
formal enforcement action;
(b)
(ii) Failure
to provide access to premises or records when required by statute, rule or
order;
(c)(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 discharge is an agricultural stormwater
discharge as defined in paragraph (C) of rule
901:10-1-01 of the
Administrative Code;
(d)
(iv)
Submitting records, reports or application forms which are false, misleading,
or fraudulent;
(e)
(v) Failure
to provide notification of a known spill or upset condition that results in a
non-permitted discharge into waters of the state;
(f)
(vi) Failure to comply with division (A) of section
903.07 of the Revised
Code;
(g)
(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.
(h)
(viii)
Failure to apply for applicable permits or review compliance
certificate;
(i)
(ix)
Installing or operating facilities regulated under Chapter 903. of the Revised
Code prior to issuance of applicable permits;
(j)
(x) Failure to provide corrections specified by the
director's designated representatives on any applicable permits or review
compliance certificate; or
(k)
(xi) Upon
completing construction authorized by a permit to install, failure to comply
with paragraph (B)(2) of rule
901:10-2-01
of the Administrative Code.
(ii)
(b) Category II
(moderate):
(a)
(i) Failure to submit a plan or report if required by
permit or rule;
(b)
(ii) Placing
manure such that manure is likely to enter the waters of the state by any
means;
(c)
(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;
(d)
(iv) Failure
to maintain the freeboard requirements of approved best management practices;
or
(e)
(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.
(iii)
(c) Category III
(minor):
(a)
(i) Any violation of record keeping requirements in
approved best management practices.
(b)
(ii) Failure
to maintain records in accordance with rule
901:10-2-16
of the Administrative Code.
(b)
(3) Gravity.
The
The gravity of effect of the
violation shall 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 be classified as high, medium
or low. The existence of one or more factors determined to be high level shall
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 result in the gravity of effect to be considered to be of
medium level. Lacking any factor of high or medium level shall result in the
gravity being of low level:
(i)
(a) Gravity of effect
high level:
(a)
(i) Significant risk of injury or actual injury to
wildlife; or
(b)
(ii) Surface or groundwater contamination of a level
that poses a significant risk of harm to public health or the environment;
or
(c)
(iii) High risk of or actual zoonotic disease
transmission as determined by the director upon consultation with federal,
state or local health agencies.
(ii)
(b) Gravity of effect
medium level:
(a)
(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
(b)
(ii) Insect and rodent populations in
exceedance
excess of target levels posing potential off-site
impacts or posing a lower risk of zoonotic disease transmission.
(iii)
(c) Gravity of effect low level:
(a)
(i) Surface water contamination not found or not found
at a level in excess of applicable water quality standards
.
; or
(b)
(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 except
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 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
|
High
|
Medium
|
Low
|
|
Violation
|
|
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 (except 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 which shall be
assessed in accordance with division (B)(3) 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
(D)
(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 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:
5/22/2017
Five Year Review (FYR) Dates:
02/17/2017 and
05/22/2022
Promulgated
Under: 119.03
Statutory
Authority: 903.08,
903.10
Rule
Amplifies: 903.01,
903.02,
903.03,
903.04,
903.07,
903.08,
903.082,
903.09,
903.10,
903.12,
903.15,
903.16,
903.17
Prior
Effective Dates: 7/2/2002, 9/15/2005,
9/1/2011
