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WAYNE
COUNTY ON-SITE SEWAGE DISPOSAL SYSTEM
EVALUATION AND MAINTENANCE ADMINISTRATIVE RULES
Rule
1. Purpose
These
administrative rules are declared necessary to protect the
health, safety and welfare of the citizens of Wayne County,
to provide for the administration, enforcement and implementation
of the Wayne County On-Site Sewage Disposal System Evaluation
and Maintenance Ordinance (hereinafter, the "Ordinance"), to
facilitate the education of disposal system owners regarding
proper system maintenance, to specify procedures pertinent
to administrative and contested case hearings and to authorize
designated individuals to issue and serve appearance tickets.
Rule
2. Title
These
rules shall be known and may be cited as the "Wayne County
On-Site Sewage Disposal System Evaluation and Maintenance Administrative
Rules."
Rule
3. Effective Date
These
administrative rules shall become effective upon approval of
the Wayne County Board of Commissioners and the Wayne County
Executive.
Rule
4. General Provisions
A. Where
relevant, the provisions of the Ordinance are applicable to these
administrative rules. The Ordinance is not superseded by these
administrative rules.
B. The
definitions set forth in Section 202 of the Ordinance are hereby
specifically and expressly referred to, adopted and incorporated
herein as if fully set out in these administrative rules.
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Rule
5. Frequency of Disposal System Evaluations
A. The
Division may require an annual evaluation for each of three
years:
1. After
initial installation, replacement or major repair of a unique,
unusual or alternative disposal system; or
2. Upon
Division determination that a disposal system is inadequate or
hazardous because the quantity of treated wastewater has increased
or will increase beyond the designed or intended flow of the
system.
B. If
a conventional disposal system is serving a non-residential structure
or parcel, the Division may require regular evaluations of the
system at intervals of no greater than two years:
1. For
four years after initial installation, replacement or major repair;
or
2. Upon
Division determination that the use or occupancy level of the structure
or parcel has changed and that the resultant quantity or characteristics
of wastewater discharged from the structure or parcel may adversely
affect the treatment capability or the acceptability of the condition
of the disposal system.
C. Upon
the completion of all evaluations required by Rule 5(A) and
Rule 5(B), the Division shall establish future evaluation
intervals for the different disposal systems described in
those rules, none of which intervals shall exceed five years.
D. Nothing
in these administrative rules shall in any way prevent, limit
or restrain the Division from conducting disposal system
evaluations upon the receipt of any complaints or information
that there may be a disposal system failure or potential
failure.
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Rule
6. Qualification of Registered Evaluators
To
be considered for County registration, an applicant must
demonstrate thorough knowledge and understanding of the Wayne
County On-Site Sewage Disposal System Evaluation and Maintenance
Ordinance and the Wayne County On-Site Sewage Disposal System
Evaluation and Maintenance Administrative Rules through means
including but not limited to:
A. The
provision to the Division of evidence of receipt of evaluator
certification from an agency or organization approved by the
Division, which certification stipulates that the applicant
has successfully completed both written and practical examinations
based upon the Ordinance and these administrative rules; or
B. The
successful completion of the Division's written and practical
examinations based upon the Ordinance and these administrative
rules.
Rule
7. Administrative Hearings
A. A request
for an administrative hearing must be submitted to the Division
within 10 days from the date of receipt of the contested citation.
The request shall be written, signed and shall include:
1. The
name, address and telephone number of the petitioner;
2. A
reference to the date and number of the citation; and
3. A
brief statement of petitioner's position regarding the matters
in question.
B. The
Division Director or his or her designee shall convene an administrative
hearing within 30 days of the Division's receipt of a timely
request. At least 10 days before the hearing, the Division
shall send a notice to the address given by petitioner which
notice shall include:
1. The
date, time and place of the hearing;
2. A
statement of the jurisdiction under which the matter falls;
3. A
reference to the contested citation; and
4. A
brief statement regarding the issues raised by petitioner.
C. Administrative
hearings shall be conducted in accordance with the Department's
commitment to due process. After an administrative hearing,
the Division Director may affirm, dismiss or modify the citation.
Petitioner may contest an adverse decision by the Division
Director in accordance with applicable provisions of the Ordinance.
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Rule
8. Contested Case Hearings
A. Initiation
A
person entitled to petition for a contested case hearing may
submit a written request for a hearing to the Director of the
Division either within 28 calendar days of the Division Director's
decision under Rule 7 or Section 805 of the Ordinance, or within
28 calendar days after notice of an adverse action. A decision
following an administrative hearing is final unless the Division
grants review within 60 days of the date of the decision pursuant
to Section 2462 of Public Act No. 368 of 1978, being MCL 333.2462;
MSA 14.15(2462). A filing fee of $200.00 must accompany a request
for a contested case hearing. The filing fee may be reduced or
waived, at the discretion of the Division Director, in extenuating
circumstances upon request of the petitioner. Failure to submit
a timely request for a contested case hearing shall effectively
waive a petitioner's right to such a hearing, and the citation,
action, intent, order or decision of the Division shall become
final and absolute.
B. Stay
of Adverse Action
If
the Division grants review of a prior decision or if a timely,
permitted request for a hearing regarding a previously unheard
matter is received by the Division, no adverse action shall be
imposed upon the petitioner until the Hearing Board has entered
a final decision or order.
C. Form
of Request
A
request for a contested case hearing shall be written, signed
and shall include:
1. The
name, address and phone number of the petitioner;
2. Identification
of the contested issues, including references to involved Ordinance
sections or administrative rules and to their bearing on the
disposition of the contested case; and
3. A
brief statement of petitioner's position regarding the matters
in question.
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D. Hearing
Scheduling and NotificationA
contested case hearing shall be scheduled to commence within
45 calendar days of the Division's receipt of a timely,
permitted, granted request for a hearing. The Division
shall give reasonable, written notice of the hearing to
the petitioner, which notice shall include:
1. The
date, time and place of the hearing;
2. A
statement of the jurisdiction under which the matter falls;
3. A
reference to the particular Ordinance sections or administrative
rules involved;
and
4. A
short and plain statement of the matters asserted.
E. Sequence
of Presentation
The
sequence of presentation at contested case hearings shall be
as follows:
1. The
presiding officer shall call the hearing to order and place
the date, time and reason for the hearing on the record.
2. The
presiding officer shall introduce for the record all persons
present, including Hearing Board members, the petitioner, Departmental
staff, legal counsel, witnesses and guests.
3. The
presiding officer shall question the Board members to ascertain
whether any of them have any familiarity with the parties or
any interest in the subject matter that would prejudice or influence
one's ability to make a fair and impartial decision. The remaining
Board members shall place a determination regarding any potential
conflicts of interest on the record.
4. The
presiding officer shall state for the record whether a quorum
of the Board is present. If a quorum has not been convened, the
hearing shall be rescheduled for a future date within a reasonable
time.
5. An
opening statement, including a general summary of the situation
at hand, shall be presented by the Division without interruption
by the petitioner. Witnesses and evidence may then be presented
by the Division. Witnesses may be cross-examined by the petitioner.
Members of the Hearing Board may ask questions at any time.
6. An
opening statement, including a general summary of the situation
at hand, shall be presented by the petitioner without interruption
by the Division. Witnesses and evidence may then be presented
by the petitioner. Witnesses may be cross-examined by the Division.
Members of the Hearing Board may ask questions at any time.
7. Each
party shall then have equal opportunity to respond to the evidence
and testimony presented by the other party, and to summarize
its respective position. Response and a closing argument shall
be given first by the Division, and then by the petitioner.
8. The
Hearing Board shall openly deliberate the matter and render its
decision. A written summary of the hearing and the decision is
to be subsequently sent to all parties and attorneys of record,
and a copy is to be kept on file by the Wayne County Health Department.
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F. Legal
Representation and Witnesses
1. The
petitioner may have legal representation present, as well as
qualified, appropriate persons who may act as witnesses on
the petitioner's behalf. The Division Director shall designate
a representative who shall be responsible for calling upon
appropriate members of the Departmental staff, or upon any
other persons to act as witnesses on the Division's behalf,
and who shall perform the Division's duties under Rule 8(E).
2. When
a party relies on a witness who has made prior oral or written
statements which are relevant to that witness' testimony before
the Hearing Board, the party relying on the witness shall make
any such statements available to any opposing party before
the witness testifies. In response to a request for identifiable
Division or Departmental records which are relevant to a disputed
fact, the Division shall promptly provide the requested records,
unless the requested records are solely related to internal
Divisional procedures, in which case the records are legally
exempt from disclosure.
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G. Hearing
Board Decisions
1. Final
decisions of the Hearing Board shall include findings of fact
and conclusions of law. Findings of fact shall be based exclusively
on the evidence presented and on the matters officially noticed
during the hearing. Each conclusion of law shall be based upon
cited authority and reasoned opinion. The Board shall enter
its decision or order only after considering the record as
a whole.
2. After
each contested case hearing, the Hearing Board may affirm,
dismiss or modify the citation, decision, action, order or
intent of the Division. Modification of a citation, decision,
action or order may include the establishment of a compliance
schedule. Given the consent of all affected parties, the Board
may defer a final decision pending further investigation.
3. Final
decisions must be read into the record and put into written
form. Copies shall be sent to all parties and attorneys of
record, in accordance with Rule 8(E).
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H. Adjournment,
Cancellation and Failure to Appear
1. If
the Director of the Division receives a written request for
an adjournment of a contested case hearing at least 72 hours
prior to the scheduled commencement of the hearing, an adjournment
and rescheduling of the hearing shall be granted.
2. If
the petitioner requests cancellation of a contested case hearing
at least 5 calendar days prior to the scheduled commencement
of the hearing, the filing fee paid by petitioner shall be
refunded to him or her, and the cancellation request shall
have the exact same effect as would petitioner's failure to
have requested a contested case hearing within 28 calendar
days.
3. If
the petitioner fails to appear at a contested case hearing
without giving prior notice, the hearing may proceed and a
decision may be made in the petitioner's absence. The petitioner's
absence without notice shall be noted in the record.
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I. Hearing
Record
Contested
case hearings shall be recorded with audio equipment, but need
not be transcribed unless a party requests and pays for transcription.
Transcription costs may be waived by the Department upon a showing
of extenuating circumstances. A written record of each contested
case hearing shall be compiled, disclosed and maintained as specified
in this Rule 8. The Department's official record of each hearing
shall include:
1. Notices
and hearing requests;
2. Written
statements of the parties;
3. The
date, time and reason for the hearing;
4. All
persons present at the hearing;
5. Determinations
regarding any potential conflicts of interest;
6. Evidence
presented during the hearing;
7. A
written summary of the hearing; and
8. The
final determination of the Hearing Board.
J. Rehearings
If
the Hearing Board determines that, for reasons beyond a petitioner's
control, the record of testimony given at a contested case hearing
is inadequate for purposes of judicial review, the Board may,
at its sole discretion, order a rehearing after receiving a request
therefor by petitioner, which request must be filed within 10
days of the Board's original decision. The rehearing shall be
noticed and conducted in the same manner as was the initial hearing.
After the rehearing, the Hearing Board may affirm, dismiss or
modify the citation, decision, action, order or intent of the
Division.
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K. Limitations
on Communication
As
of the time a notice of hearing is sent to the petitioner, and
throughout the duration of a contested case's pendency, no member
of the Hearing Board may communicate, directly or indirectly,
with any party or representative of a party to a contested case,
or with any person involved, however remotely, with a contested
case about any topic or subject connected in any way to an issue
of fact or law pertaining to the contested case, unless all parties
are aware of the communication and have the opportunity to participate
therein.
Rule
9. Hearing Board
A. Duties
Members
of the Hearing Board shall appear at the time and place at
which a contested case hearing is scheduled. The Hearing Board
shall designate one of its members as the presiding officer,
and that member will preside over the contested case hearing
in accordance with these administrative rules.
B. Conflict
of Interest
Any
Board member who has a personal or organizational conflict
of interest, or who may appear to have such a conflict regarding
any matter that may come before the Board shall disclose the
conflict to the other members of the Board. If the remaining
Board members determine that a conflict exists, that determination
shall be placed on the record pursuant to Rule 8(E) and Rule
8(I), and the member with the conflict shall not sit as part
of the Board while the contested case with which the member
is in conflict is heard, considered or decided. Neither the
Division Director nor his or her designee shall be deemed to
be in conflict of interest solely by reason of his or her employment.
If more than one member of the Board is found to have a personal
or organizational conflict of interest related to a single
contested case, the Wayne County Executive shall designate
an alternate for each member in conflict. Each alternate shall
be of the same representational capacity as the Board member
for whom the alternate is substituting.
Rule
10. Appearance Tickets
The designees
of the Health Officer who are authorized to issue and serve
appearance tickets are the Director of the Division, the Assistant
Director of the Division, the Chief of the Technical Service
Section and the Chief of the Code Compliance Section.
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