Current through all regulations passed and filed through September 16, 2024
(A) Operation and management plans. The
district shall approve or disapprove operation and management plans at
the
district's regularly scheduled board meetings and shall maintain a record
of their actions as part of their meeting minutes. Approved plans shall be
signed by the chairman. Plans may also be submitted by the owner or operator to
the director for approval. District boards of supervisors may establish such
guidelines as may be needed for plan format and submission; however, all plans
shall meet the standards for agricultural pollution abatement contained in
rules 901:13-1-02 to
901:13-1-14 and
901:13-1-19 of the
Administrative Code. Any portion of an operation and management plan specifying
control of agricultural pollution shall allow the owner or operator to phase in
installation of conservation practices under a schedule approved by the
director or the director's designee until compliance with Chapter 901:13-1 of
the Administrative Code is accomplished.
(1)
If the director or the director's designee determines that any person owning or
responsible for an agricultural production operation is managing such operation
in accordance with an operation and management plan currently approved by the
director or the director's designee, the person shall be considered in
compliance with the state rules for agricultural pollution abatement. In a
private civil action for nuisances involving agricultural pollution, it is an
affirmative defense if the person owning, operating, or otherwise responsible
for agricultural production operations is operating under and in substantial
compliance with an approved operation and management plan.
(2) In the event that the district finds that
an operation and management plan does not meet agricultural pollution abatement
standards as contained in these rules, the district shall provide a written
explanation, by certified mail listing all the deficiencies to be corrected, to
the person who submitted the plan. Any person may appeal the district's
decision to the director. Upon such appeal, the director
will
review the plan for compliance with these standards, and uphold the district's
action or reverse it. If the director reverses the district's action the plan
will be
deemed approved. In either case, the director will make such
determination within thirty days of receiving the appeal and
will
inform the owner or operator and the district of the decision in
writing. Such notification will include the reasons for the director's
decision.
(3) In the event that any
person operating or owning an agricultural production operation in accordance
with an approved operation and management plan who, in good faith, is following
that plan, causes agricultural pollution, the plan shall be revised in a manner
necessary to mitigate the agricultural pollution, as determined and approved by
the district board.
(4) In the
event that the district board determines that it lacks staff or expertise to
adequately review an operation and management plan, the district board of
supervisors may submit such plan to the director for review and approval or
disapproval.
(B)
Pollution complaints. Any person who wishes to make a complaint regarding
nuisances involving agricultural pollution may do so orally or by submitting a
written complaint to the director or the director's designee. By written
agreement with the director, the district may receive complaints and
investigate them to determine whether agricultural pollution has occurred or is
imminent. The director reserves the right to assume responsibility to
investigate and resolve any complaint. The district shall provide the director
a copy of any complaint received. The district also shall inform the department
of the disposition of the complaint and provide relevant information concerning
the agricultural production operation. The district director or his or her
designee
will gather information pertinent to the alleged
violation. This information includes but is not limited to:
(1) The location and description of property
and/or waters of the state allegedly being damaged;
(2) The nature and extent of
damage;
(3) The alleged sources of
pollution;
(4) Any efforts made to
obtain voluntary cooperation to eliminate the problem.
(C) Action initiated by the department.
(1) When the department finds an apparent
problem of agricultural pollution through its own observation, through
notification by another agency, or through a complaint from a person, the
department may investigate the complaint and will inform the
appropriate district of:
(a) The location and
nature of the problem;
(b) The
location and description of the agricultural production operation alleged to be
causing the pollution problem;
(c)
The nature and extent of damage;
(d) Any assistance needed from the
district.
(2) When the
department investigates a complaint involving an agricultural operation that is
allegedly not in compliance with state rules for agricultural pollution
abatement, a representative of the department will contact the owner or
operator and inform them of the complaint and explain the agricultural
pollution abatement rules and standards. The department may perform an
investigation to determine whether or not there is compliance with this
chapter.
(3)
To determine if there is a violation of the rules for
agricultural pollution,
an investigation performed by the department may include
consideration of the following:
(a) Identification of property boundaries,
streams, water courses, wetlands, ponds, lakes, water wells, the general
topography, and the general storm water runoff pattern if applicable, including
roof water;
(b) For animal manure
pollution: identification of the number and kind of animals in the feeding
operation, the size and slope of the feedlot, the method of handling animal
manure, and the overall manure management system including disposal system; for
sediment pollution: estimation of average annual rates of soil erosion based on
soil type, present land use, and cropping and management practices;
(c) Determination of soil types and need for
additional geologic study if applicable to determine potential ground water
pollution;
(d) Observation and
documentation of the nature and extent of existing or potential pollution
damage; documentation may include photographs, video recording, physical
measurements, onsite chemical analysis and water, sediment or manure samples
for lab analysis consistent with appropriate sampling procedures and nutrient
status of the soil;
(e)
Determination of suitability and availability of land for application of animal
manure, crops grown on the land, tillage practices used, and average crop
yields;
(f) Contacts with the
operator, complainant, cooperating agencies contacted, dates and times of
investigations will be recorded and kept on file along with a copy of
the complaint. Copies of all information shall be made available to the
district.
(4)
Investigation indicating no pollution problem. If the investigative report
indicates that the operation is in compliance with the rules for agricultural
pollution abatement, the department may offer to assist the owner or operator
in preparing an operation and management plan for the operation as it exists
and have the district board or director approve it to provide assurance that
the operation is considered in compliance with the applicable rules.
(5) Owner, operator, or person responsible
interested in voluntary, cooperative solution. If the investigative report
indicates that a violation of the rules for agricultural pollution abatement
exists and the landowner or operator is interested and willing to seek a
corrective solution, the department shall:
(a)
Offer information and technical assistance for developing and evaluating
alternative solutions;
(b) Provide
information on financial assistance available;
(c) Offer to develop an operation and
management plan which complies with the rules for agricultural pollution
abatement; and
(d) Secure district
or director approval of the operation and management plan to provide assurance
that the operation is considered in compliance with the rules for agricultural
pollution abatement.
(6)
Owner, operator, or person responsible failure to cooperate in a voluntary
solution.
(a) The department representative
shall inform the district board of supervisors and the director of the facts
established by the investigative report, the succeeding action followed to seek
compliance with the rules, and the action or inaction taken by the owner or
operator. If the director decides that a violation does exist and corrective
action is needed, the director will develop a compliance schedule and inform
the person in violation by certified mail that he has a period of time to
proceed voluntarily to correct the violation.
(b) If the owner or operator has failed to
implement the corrective actions in the time specified, the director
will
then decide if an order will be issued.
(D) Action by a district.
(1) When a district, which has entered into
an agreement with the director for the purpose of implementing the agricultural
pollution abatement program, finds through a complaint that an agricultural
production operation is allegedly not in compliance with state rules for
agricultural pollution abatement, a representative of the district will contact
the owner or operator of the operation and explain the district role in the
agricultural pollution abatement program. Upon receipt of the complaint the
district shall give priority to conducting an investigation. If the district
determines it is unable to initiate an investigation within three business
days, the department shall be notified immediately. The director or the
director's designee will initiate an investigation of the complaint within
three business days of notification by the district.
(2)
To determine if there is a violation
of the rules for agricultural pollution,
the
investigation may include
consideration of the
following:
(a) Identification of property
boundaries, streams, water courses, wetlands, ponds, lakes, water wells, the
general topography, and the general storm water runoff pattern if applicable,
including roof water;
(b) For
animal manure pollution: identification of the number and kind of animals in
the feeding operation, the size and slope of the feedlot, the method of
handling animal manure, and the overall manure management scheme including
disposal system; for sediment pollution: estimation of average annual rates of
soil erosion based on soil type, present land use, and cropping and management
practices;
(c) Determination of
soil types and need for additional geologic study if applicable to determine
potential ground water pollution of aquifer;
(d) Observations and documentation of the
nature and extent of existing or potential pollution damage; documentation may
include photographs, video recordings, physical measurements, onsite chemical
analysis and water, sediment or manure samples for lab analysis consistent with
appropriate sampling procedures and nutrient status of the soil;
(e) Determination of suitability and
availability of land for application of animal manure, crops grown on the land,
tillage practices used, and average crop yields;
(f) Contacts with the owner, operator, person
responsible, complainant, cooperating agencies contacted, dates and times of
investigations will be recorded and placed in a cooperator file or
other appropriate district file. A copy of the complaint and other relevant
information will be placed in the same file.
(3) Investigation indicating no pollution
problem. If the investigative report indicates that the operation is in
compliance with the rules for agricultural pollution abatement, the district
representative may offer to assist the owner or operator in preparing an
operation and management plan for the operation as it exists and have the
district board approve it to provide assurance that the operation is considered
in compliance with the applicable rules.
(4) Owner, operator, or person responsible
interested in voluntary, cooperative solution. If the investigative report
indicates that a violation of the rules for agricultural pollution abatement
exists and the landowner or operator is interested and willing to seek a
corrective solution, the district representative shall:
(a) Offer information and technical
assistance for developing and evaluating alternative solutions;
(b) Provide information on financial
assistance available;
(c) Offer to
develop an operation and management plan which complies with the rules for
agricultural pollution abatement;
(d) Secure district approval of the operation
and management plan to provide assurance that the operation is considered in
compliance with the rules for agricultural pollution abatement; and
(e) Inform the owner, operator, or person
responsible that if a corrective solution is not implemented within six months
of the investigation, the district and the department will review the complaint
and determine if adequate progress has been made towards a solution. If
adequate progress is not made then the department will request that the
district refer the compliant to the department for resolution or possible
further enforcement action.
(5) Owner, operator, or person responsible
failure to cooperate in a voluntary solution. If the investigative report
indicates that a violation of the rules for agricultural pollution exists, but
the owner, operator, or person responsible is unwilling to cooperate in
correcting the problem:
(a) The district
representative shall inform the district board of supervisors and the
department of the facts established by the investigative report, the succeeding
action followed to seek compliance with the rules, and the action or inaction
taken by the owner or operator. If the district board decides that a violation
does exist and corrective action is needed, the board will inform the person in
violation by certified mail of the period of time available, as determined and
specified by the district, for the person to proceed voluntarily to correct the
violation.
(b) If the owner,
operator or person responsible has failed to implement the corrective actions
in the time specified, the board may choose to invite the owner, operator, or
person responsible by certified mail to the next regularly scheduled board
meeting or file a copy of their findings with the department and a copy to the
alleged violator and to the complainant if appropriate, and request the
director to issue an order. These findings include:
(i) The investigative report by the district
representative;
(ii) Any pertinent
testimony by the person in violation;
(iii) A copy of the district's decision as
recorded;
(iv) Alternative methods
for correcting the violation;
(v)
Practices needed and cost-share eligibility;
(vi) A timely sequence for application of
corrective measures; and
(vii) A
time period (specified by the district) for completion of all corrective and
control measures.