Section 644.056

Title XL ADDITIONAL EXECUTIVE DEPARTMENTS

Chapter 644

Effective - 28 Aug 2015   

  644.056.  Investigations, when — misrepresentation or failure to disclose a violation, when — abatement orders, when — permits terminated, when — hearings — appeals. — 1.  The director shall cause investigations to be made upon the request of the commission or upon receipt of information concerning alleged violations of sections 644.006 to 644.141 or any standard, limitation, order, rule or regulation promulgated pursuant thereto, or any term or condition of any permit and may cause to be made any other investigations he or she deems advisable.  Violations shall include obtaining a permit by misrepresentation or failure to fully disclose all relevant facts.

  2.  If, in the opinion of the director, the investigation discloses that a violation does exist, the director may, by conference, conciliation or persuasion, endeavor to eliminate the violation.

  3.  In case of the failure by conference, conciliation or persuasion to correct or remedy any claimed violation, or as required to immediately and effectively halt or eliminate any imminent or substantial endangerments to the health or welfare of persons resulting from the discharge of pollutants, the director may order abatement or request legal action by the attorney general.  When the director files a complaint, the commission shall order a hearing.  The director shall cause to have issued and served upon the person complained against a written notice of the order or complaint, together with a copy of the order or complaint, which shall specify the provision of sections 644.006 to 644.141 or the standard, rule, limitation, or regulation adopted pursuant thereto, or the condition of the permit of which the person is alleged to be in violation, and a statement of the manner in which and the extent to which the person is alleged to violate sections 644.006 to 644.141 or the standard, rule, limitation, or regulation, or condition of the permit.  In any case involving a complaint, the commission shall require the person complained against to answer the charges of the formal complaint at a hearing before the commission at a time not less than thirty days after the date of notice.  Service may be made upon any person within or without the state by registered mail, return receipt requested.  Any person against whom the director issues an order may appeal the order to the commission within thirty days and the appeal shall stay the enforcement of the order until final determination by the commission.  The commission shall set appeals for a hearing at a time not less than thirty days after the date of the request.  The commission may sustain, reverse, or modify the director's order or may make such other orders as the commission deems appropriate under the circumstances.  If any order issued by the director is not appealed within the time provided in this section, the order becomes final and may be enforced as provided in section 644.076.  When the commission schedules a matter for hearing, the petitioner on appeal or the respondent to a formal complaint may appear at the hearing in person or by counsel, and may make oral argument, offer testimony and evidence, and cross-examine witnesses.  After due consideration of the record, or upon default in appearance of the respondent on the return day specified in the notice given as provided in this subsection, the commission shall issue and enter such final order, or make such final determination as it deems appropriate under the circumstances, and it shall immediately notify the petitioner or respondent thereof in writing by certified or registered mail.

  4.  Permits may be revoked, terminated, or modified if obtained in violation of sections 644.006 to 644.141 or by misrepresentation or failing to fully disclose all relevant facts, or when required to prevent violations of any provision of sections 644.006 to 644.141, or to protect the waters of this state, when such action is required by a change in conditions or the existence of a condition which requires either a temporary or permanent reduction or elimination of the authorized discharge, subject to the right of appeal contained in sections 621.250 and 640.013.

  5.  Whenever a permit under this chapter is revoked, terminated, or modified by the department of natural resources, the applicant, by petition filed with the administrative hearing commission within thirty days of the decision, may appeal such decision as provided by sections 621.250 and 640.013.  Once the administrative hearing commission has reviewed the appeal, the administrative hearing commission shall issue a recommended decision to the commission on permit revocation, termination, or modification.  The commission shall issue its own decision, based on the appeal, for permit revocation, termination, or modification.  If the commission changes a finding of fact or conclusion of law made by the administrative hearing commission, or modifies or vacates the decision recommended by the administrative hearing commission, it shall issue its own decision, which shall include findings of fact and conclusions of law.  The commission shall mail copies of its final decision to the parties to the appeal or their counsel of record.  The commission's decision shall be subject to judicial review pursuant to chapter 536, except that the court of appeals district with territorial jurisdiction coextensive with the county where the point source is located or is to be located shall have original jurisdiction.  No judicial review shall be available until and unless all administrative remedies are exhausted.

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(L. 1972 S.B. 424, A.L. 1973 S.B. 259, S.B. 321, A.L. 2000 S.B. 741, A.L. 2015 H.B. 92)