§ 2-20-8 — Notice and hearing requirements.

Oklahoma § 2-20-8

• Jurisdiction: Oklahoma
• Title 2: Agriculture

Text

A. 1. Any person applying for a license for a new or expanding swine feeding operation shall comply with the notice and hearing requirements as specified by this section and rules promulgated by the State Board of Agriculture. 2. Notice requirements shall include notice to affected property owners by certified mail, return receipt requested pursuant to subsection C of this section and public notice pursuant to subsection D of this section. B. 1. After submission of a completed application as provided by the Oklahoma Swine Feeding Operations Act and rules promulgated pursuant thereto, the Oklahoma Department of Agriculture, Food, and Forestry shall have sixty (60) working days to review the application for a new or expanding operation for physical and technical suitability. 2. a. After review of the application the Department may request additional information from the applicant. Upon receipt of the additional information the Department shall then have an additional thirty (30) working days to review the additional information. b. On or before the expiration of an additional thirty- working-day period, the Department shall make a determination as to whether the application is complete and in compliance with all statutory requirements and relevant rules of the Department or request additional information pursuant to subparagraph a of this paragraph. C. 1. After the Department has determined that the application is complete, the Department shall require the applicant to notify all affected property owners that a completed application is on file with the Department. Notice shall be sent by certified mail, return receipt requested. The notice shall state that an application for a new or expanding swine feeding operation has been submitted to the Department and has been deemed to be complete, the location of the facility, that a hearing may be requested within fifteen (15) working days from the receipt of notice by the affected property owner and that a copy of the completed application is available for public review pursuant to paragraph 3 of subsection D of this section. 2. The State Board of Agriculture shall not act on the application until the expiration of the time period set forth in paragraph 1 of subsection G of this section. If a hearing is requested pursuant to paragraph 1 of subsection G of this section, the Board shall not take action on the application until the hearing process is complete. 3. Establishment of property usage is the date the swine feeding operation application was made available for public review versus date of initial construction or placement of occupied residence and shall be given consideration when determining a contested matter between an applicant and an affected property owner on issues other than pollution of the waters of the state. D. 1. In addition to the individual notice, the Department shall require the applicant to give public notice of the opportunity to comment on the granting of the license. 2. The public notice for a new or expanding operation shall be published as a legal notice prior to the date the application is available for public viewing, in at least one newspaper of general circulation in the county where the proposed facility or expanding operation is to be located. 3. The notice shall identify locations where the application shall be available for viewing. The locations shall include the office of the Department and a specific public location in the county where the proposed facility or expanding operation is to be located. 4. The application shall be available for public review during normal business hours. The copies of the application posted for public viewing shall be complete except for proprietary provisions otherwise protected by law and shall remain posted during normal business hours for at least twenty (20) working days after notice is published. 5. The Department, as necessary, may hold public meetings at a location convenient to the population center nearest the proposed facility or expanding operation to address public comments on the proposed facility or expanding operation. E. Prior to the issuance of any license for a swine feeding operation, or expanding operation, the Department shall require the applicant to submit: 1. Documentation certifying notice has been issued to all affected property owners. A map of all affected property owners and the corresponding mailing list shall be submitted with each application; and 2. Proof of publication notice of a new or expanding application for a swine feeding operation license. F. If no hearing is requested within the time periods set forth in paragraph 1 of subsection G of this section, the application shall be submitted to the State Board of Agriculture for consideration and action. G. 1. An affected property owner may request a hearing prior to final approval of the application. All requests for a hearing shall be filed with the Department within fifteen (15) working days after the receipt of the notice by the affected property owner. In requesting a hearing an affected property owner shall state in the request: a. the name and address of the affected property owner and proof of standing by showing a surface ownership interest in the affected property, and b. specific allegations showing that the proposed facility or expanding operation may have a direct, substantial and immediate effect upon a legally protected interest of the affected property owner. The allegations shall address with specificity the information contained within the application for licensure. Furthermore, the allegations shall be limited to demonstrating how the application is deficient, how the deficiencies have a direct effect on a legal interest of the affected property owner, and how the applicant has failed to show that the application should be granted. The allegations shall also address the physical and technical suitability of the proposed facility. 2. If any of the affected property owners request an administrative hearing pursuant to paragraph 1 of this subsection and all information listed in subparagraphs a and b of paragraph 1 of this subsection is found to be complete and adequate in the request for hearing, a preliminary hearing shall be scheduled by the Department at a reasonable time within sixty (60) calendar days. Should the affected property owner fail to provide any of the information required in the request for hearing, the affected property owner shall have ten (10) working days during which any deficiencies may be cured after receipt of notice from the Department of the failure. All affected property owners shall be considered parties to the preliminary hearing scheduled by the Department. H. 1. The preliminary hearing shall be held at the Oklahoma Department of Agriculture, Food, and Forestry before an administrative law judge. 2. There shall be a rebuttable presumption on the part of the applicant that the application in question is complete and in compliance with all applicable statutes and rules. 3. It shall be the burden of the affected property owner(s) to present an offer of proof showing by a preponderance of the evidence: a. that the facility has a direct, substantial, and immediate effect upon a legally protected interest, and b. that the direct, substantial, and immediate effect upon a legally protected interest arises directly from a deficiency in the application or from the physical and technical suitability of the proposed facility. 4. The administrative law judge after all evidence is presented by the affected property owner(s) shall afford the applicant an opportunity to respond to and rebut the allegations presented and to show how the affected property owner(s) failed to meet the standards set forth in subparagraphs a and b of paragraph 3 of this subsection. 5. Upon completion of the preliminary hearing, the administrative law judge shall have twenty (20) working days in which to issue an order granting or denying the affected property owner(s) a full administrative hearing. If an affected property owner is denied a full administrative hearing, the administrative law judge shall issue a written recommended order containing specific findings of fact and conclusions of law on which the decision is based. 6. If the administrative law judge finds the affected property owner(s) failed to meet the burden of proof set forth in paragraphs 2, 3, and 4 of this subsection the application shall be sent to the State Board of Agriculture along with a copy of the recommended order of the administrative law judge for consideration and action. 7. If the administrative law judge finds the affected property owner(s) met the burden of proof set forth in paragraph 3 of this subsection, then a full administrative hearing shall be scheduled in accordance with the Administrative Procedures Act. 8. The administrative law judge may separately grant or deny a full administrative hearing for each affected property owner when more than one is party to the preliminary hearing. I. 1. An affected property owner meeting the burden of proof pursuant to subsection H of this section shall be entitled to a full administrative hearing pursuant to the Administrative Procedures Act. Only those affected property owners found meeting the burden of proof pursuant to subsection H of this section are entitled to a full administrative hearing. 2. The scheduling conference for the hearing shall be held by the Department at a reasonable time within thirty (30) working days after the administrative law judge has issued a written order. All interested parties may be joined as parties to the hearing. 3. An affected property owner may at any time waive its right to a hearing. If an affected property owner waives its right to a hearing, a signed and notarized document shall be filed with the administrative law judge stating the affected property owner waived its right to a hearing, did so without force or coercion, understands it is also waiving its right to any further hearings provided for under this section or the Administrative Procedures Act, and that the waiver shall be with prejudice. The waiver of right to a hearing shall be admissible as evidence in any court of the State of Oklahoma as evidence that the affected property owner waived its rights to any additional hearings to which it may otherwise have been entitled. 4. At the hearing the administrative law judge shall hear testimony and accept evidence pertaining to the physical and technical suitability of the proposed facility or expanding operations and deficiencies contained in the original application for the license. Based on these grounds it shall be the burden of the interested party to show by clear and convincing evidence that the proposed facility will have a direct, substantial, and immediate effect upon a legally protected interest of the interested party. Furthermore, there shall be a rebuttable presumption that the application is complete and in compliance with the relevant statutes and rules. 5. Any evidence presented at the administrative hearing shall be directly related to allegations and evidence previously presented by the affected property owner(s) during the preliminary hearing. Evidence not meeting this criteria shall only be admitted by the administrative law judge upon a finding that: a. the evidence was unavailable to the interested party prior to the preliminary hearing, and b. the interested party exercised due diligence to discover and present all relevant evidence at the preliminary hearing, and c. reasonable efforts to discover the information would not have led to its discovery prior to the preliminary hearing, or d. the applicant willfully concealed evidence or information that would likely have assisted the interested party in presenting its case at the preliminary hearing. 6. At the hearing, the interested party shall be afforded a reasonable opportunity to present evidence and argument in support of the allegations identified in the preliminary hearing and the applicant shall be afforded a reasonable opportunity to present evidence and argument to controvert those allegations. 7. The administrative hearing held pursuant to the provisions of this subsection shall comply with the Administrative Procedures Act and rules promulgated by the Board.

Legislative History

Added by Laws 1997, c. 331, § 7, eff. Sept. 1, 1997. Amended by Laws 1998, c. 404, § 7, eff. Aug. 1, 1998. Renumbered from § 9- 205.1 of this title by Laws 2005, c. 292, § 25, eff. July 1, 2005. Amended by Laws 2006, c. 129, § 2, eff. Nov. 1, 2006; Laws 2007, c. 31, § 8, eff. Nov. 1, 2007; Laws 2013, c. 123, § 2, eff. Nov. 1, 2013.