2023 Nebraska Revised Statutes › Chapter 81 - State Administrative Departments › 81-1507 - Director; violations; hearings; orders.

81-1507.
Director; violations; hearings; orders.
(1) Whenever the director has reason to believe that a violation of any provision of the Environmental Protection Act, the Integrated Solid Waste Management Act, the Livestock Waste Management Act, a rule or regulation pursuant to such acts, or any order of the department has occurred, he or she may cause a written complaint to be served upon the alleged violator or violators or he or she may bring a criminal or civil action under section 81-1508.01 or 81-1508.02. The complaint shall specify the provision of the act, rule or regulation, or order alleged to be violated and the facts alleged to constitute a violation thereof and shall order that necessary corrective action be taken within a reasonable time to be prescribed in such order. Any such order shall become final unless each person named therein requests in writing a hearing before the director no later than thirty days after the date such order is served. In lieu of such order, the director may require that the alleged violator appear before the director at a time and place specified in the notice and answer the charges complained of. The notice shall be delivered to the alleged violator or violators in accordance with the provisions of subsection (5) of this section not less than thirty days before the time set for the hearing.
Whenever, on the basis of any information, the director determines that there is or has been a release of hazardous waste or hazardous constituents into the environment from a facility authorized to operate under the Environmental Protection Act or from a facility subject to hazardous waste management regulations adopted and promulgated under the act, the director may issue an order requiring the owner or operator to monitor, investigate, and undertake corrective action or such other response at the facility or beyond the facility boundary where necessary to protect human health and the environment. In the case of any facility or site not in operation at the time a determination is made to require corrective action, if the director finds that the owner could not reasonably be expected to have actual knowledge of the presence of hazardous waste at the site, the director may issue an order requiring any previous owner or operator who could reasonably be expected to have actual knowledge to carry out the necessary monitoring, investigation, and corrective action.
(2) The director shall afford an opportunity for a fair hearing, in accordance with the provisions of the Environmental Protection Act, the Integrated Solid Waste Management Act, or the Livestock Waste Management Act, to the alleged violator or violators at the time and place specified in the notice or any modification thereof. On the basis of the evidence produced at the hearing, the director or hearing officer shall make findings of fact and conclusions of law and enter such order as in his or her opinion will best further the purposes of the acts and shall give written notice of such order to the alleged violator and to such other persons who appear at the hearing and make written request for notice of the order. If the hearing is held before any person other than the director, such person shall transmit a record of the hearing together with findings of fact and conclusions of law to the director. The director, prior to entering his or her order on the basis of such record, shall provide opportunity to the parties to submit for his or her consideration exceptions to the findings or conclusions and supporting reasons for such exceptions. The order of the director shall become final and binding on all parties unless appealed to the courts as provided in section 81-1509 within thirty days after notice has been sent to the parties.
(3) Any person who is denied a permit by the director or who has such permit revoked or modified shall be afforded an opportunity for a fair hearing as provided in subsection (2) of this section in connection therewith upon written application to the director within thirty days after receipt of notice from the director of such denial, revocation, or modification. On the basis of such hearing the director shall affirm, modify, or revoke his or her previous determination.
(4) Whenever the director finds that an emergency exists requiring immediate action to protect the public health and welfare, the director may, without notice or hearing, issue an order reciting the existence of such an emergency and requiring that such action be taken as the director deems necessary to meet the emergency. Notwithstanding the provisions of subsection (2) of this section, such order shall be effective immediately. Any person to whom such order is directed shall comply therewith immediately but on application to the director shall be afforded a hearing as soon as possible and not later than ten days after such application by such affected person. On the basis of such hearing, the director shall continue such order in effect, revoke it, or modify it.
(5) Except as otherwise expressly provided, any notice, order, or other instrument issued by or under authority of the director shall be served on any person affected thereby in a manner provided for service of a summons in a civil action. Proof of service shall be filed in the office of the department.
Every certificate or affidavit of service made and filed as provided in this section shall be prima facie evidence of the facts therein stated, and a certified copy thereof shall have like force and effect.
(6) The hearings provided for in this section may be conducted by the director or by any member of the department acting in his or her behalf, or the director may designate hearing officers who shall have the power and authority to conduct such hearings in the name of the director at any time and place. A verbatim record of the proceedings of such hearings shall be taken and filed with the director, together with findings of fact and conclusions of law made by the director or hearing officer. Witnesses who are subpoenaed shall receive the same fees as in civil actions in the district court and mileage as provided in section 81-1176. In case of contumacy or refusal to obey a notice of hearing or subpoena issued under the provisions of this section, the district court shall have jurisdiction, upon application of the director, to issue an order requiring such person to appear and testify or produce evidence as the case may require and any failure to obey such order of the court may be punished by such court as contempt thereof.
If requested to do so by any party concerned with such hearing, the full stenographic notes, or tapes of an electronic transcribing device, of the testimony presented at such hearing shall be taken and filed. The stenographer shall, upon the payment of the stenographer's fee allowed by the court therefor, furnish a certified transcript of the whole or any part of the stenographer's notes to any party to the action requiring and requesting the same.
(7)(a) If the director finds that any person has performed or failed to perform any act that presents or may present a substantial harm to the environment, the director may issue a cease and desist order to such person to take effect immediately, without notice, hearing, or submission, to take or cease all actions necessary to come into compliance. The order shall specify a time for compliance.
(b) Upon issuance of a cease and desist order, the director shall promptly notify in writing all persons to whom the order is directed and include the reasons for the order. Any person to whom the order is directed may request a hearing in writing within fifteen business days after the date of the issuance of the order. The matter shall be set for hearing within ten business days after receipt of such hearing request by the director, unless the parties agree to a later date or the director or hearing officer sets a later date for good cause. If a hearing is requested, the director or hearing officer shall, after notice and hearing, issue written findings of fact and conclusions of law within ten business days after the hearing and may affirm, vacate, or modify the order. Until the director or hearing officer issues written findings of fact and conclusions of law, the cease and desist order shall continue in effect.
(c) If a hearing is not requested as provided in subdivision (7)(b) of this section, the cease and desist order of the director shall automatically become final and shall remain in effect until modified or vacated by the director.
(d) Any person who violates a cease and desist order of the director under this subsection may be subject to:
(i) A civil penalty under section 81-1508.02;
(ii) Suspension or revocation of environmental permits issued by the department; and
(iii) Further enforcement action.
Source
Laws 1971, LB 939, § 7;
Laws 1972, LB 1435, § 6;
Laws 1974, LB 1029, § 5;
Laws 1981, LB 204, § 197;
Laws 1983, LB 447, § 99;
Laws 1987, LB 152, § 2;
Laws 1992, LB 1257, § 84;
Laws 1998, LB 1209, § 23;
Laws 1999, LB 784, § 2;
Laws 1999, LB 789, § 1;
Laws 2022, LB1102, § 12.
Cross References
Integrated Solid Waste Management Act, see section 13-2001.
Livestock Waste Management Act, see section 54-2401.
Annotations
The Director of Environmental Quality is not required to issue a complaint under this section for each and every possible violation of the Environmental Protection Act, but if the director decides to pursue enforcement of a violation, then the director is required to issue a complaint meeting the requirements of this section. State ex rel. Wood v. Fisher Foods, Ltd., 254 Neb. 982, 581 N.W.2d 409 (1998).