RELATES TO: KRS 224.10-410, 224.10-470, 350.010(2), 350.032,
350.060, 350.085, 350.130, 350.240, 350.300, 350.305, 350.990
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 requires
the cabinet to promulgate administrative regulations pertaining to noncoal
mineral operations to minimize their adverse effects on the citizens and the
environment of the Commonwealth. KRS 350.0301 requires the cabinet to
promulgate administrative regulations establishing formal and informal hearing
procedures and administrative conferences. This administrative regulation
establishes provisions governing requests for administrative hearings,
initiation of administrative hearings by the cabinet, informal settlement
conferences, procedures for the conduct of administrative hearings, and orders
to abate and alleviate.
Section 1.
Definitions.
(1) "Cessation order" means an
order for cessation and immediate compliance and any similar order issued by an
authorized representative of the cabinet pursuant to KRS 350.130 and 405 KAR
Chapter 5.
(6)
"Notice of noncompliance and order for remedial measures" means a written
document and order prepared by an authorized representative of the cabinet in
accordance with
KRS 350.130 that:
(a) Sets
forth with specificity the violations of KRS Chapter 350, 405 KAR Chapters 5,
or permit conditions, which the authorized representative of the cabinet
determines to have occurred based upon a cabinet inspection; and
(b) Establishes the necessary remedial
actions, if any, and the time schedule for completion thereof, which the
authorized representative deems necessary and appropriate to correct the
violations.
(7) "Order
for cessation and immediate compliance" means a written document and order
issued by an authorized representative of the cabinet in accordance with
KRS 350.130 if:
(a) A person to whom a notice of
noncompliance and order for remedial measures was issued has failed, as
determined by a cabinet inspection, to comply with the terms of the notice of
noncompliance and order for remedial measures within the time limits set
therein, or as subsequently extended; or
(b) The authorized representative finds, on
the basis of a cabinet inspection, any condition or practice or any violation
of KRS Chapter 350, 405 KAR Chapters 5, or any condition of a permit that:
1. Creates an imminent danger to the health
or safety of the public; or
2. Is
causing or can reasonably be expected to cause significant, imminent
environmental harm to land, air, or water resources.
(10)
"Significant, imminent environmental harm to land, air, or water resources" is
defined by
405 KAR 5:002.
Section
2. Review of a Cabinet Order and Final Determination Relating to a
Mineral Operation.
(1) Who may file. A person
aggrieved by a determination of the cabinet relating to a mineral operation,
including a notice of noncompliance and order for remedial measures, cessation
order, or penalty assessment, may file a petition for review of the
determination. A petition for review shall be filed pursuant to this section
and KRS 350.0301(1).
(2) Time for
filing.
(a) A person shall file in the office
a petition within thirty (30) days after the person has had actual notice of
the determination complained of, or could reasonably have had notice.
(b) The hearing officer shall not grant an
extension of time for filing a petition for review.
(c) If the hearing officer, upon motion or
his own initiative, finds that the person failed to timely file the petition
for review in accordance with this section, the hearing officer shall issue a
report recommending dismissal of the petition. The secretary shall dismiss a
petition that is not filed in accordance with paragraph (a) of this subsection,
stating that the person waived his right to an administrative
hearing.
(3) Contents of
the petition. The petition for review shall contain:
(a) A statement of the facts entitling the
person requesting review to administrative relief;
(b) An explanation of each specific alleged
error in the cabinet's determination;
(c) A request for specific relief;
(d) A copy of the written determination to be
reviewed, if applicable; and
(e) If
the petition challenges an order or final determination on a permit, the name
of the permittee and the permit number.
(4) Public notice. The office shall post
notice of the administrative hearing at the department's regional office with
jurisdiction over the mine site, at least five (5) days before the
administrative hearing.
(5) Answer
or responsive pleading.
(a) The respondent
shall file with the office an answer or other responsive pleading within thirty
(30) days of service of the petition.
(b) The answer shall contain:
1.
a. A
statement specifically admitting or denying the facts stated in the petition or
amended petition; or
b. If the
person is without knowledge or information sufficient to form a belief as to
the truth of an allegation, then the person shall so state and it shall have
the effect of a denial;
2. Any defense to each claim for relief;
and
3. Any other matter to be
considered on review.
(c) Failure to plead any available
administrative affirmative defense in a required answer or responsive pleading
may constitute a waiver of the defense, except that lack of jurisdiction over
the subject matter and failure to state a claim upon which relief can be
granted shall not be waived by failure to assert those defenses in an answer or
responsive pleading.
(d) An
allegation in the petition to which no answer or responsive pleading is
required or permitted shall be taken as denied or avoided.
(e) An allegation in the petition to which an
answer or responsive pleading is required may be deemed admitted if not denied
in the answer or responsive pleading.
(6) Amended petition.
(a) A petition may be amended once as a
matter of right prior to the filing of an answer and thereafter by leave of the
hearing officer upon proper motion.
(b) The respondent shall have ten (10) days
from the filing of an amended petition or the time remaining for filing an
answer to the original petition, whichever is longer, to file an answer or
responsive pleading to the amended petition.
(c) If the hearing officer grants a motion to
amend a petition, the hearing officer shall set the time for an answer to be
filed in the order granting the motion.
(7) Effect of filing. The filing of a
petition for review shall not stay the effectiveness of the cabinet's
determination pending completion of administrative review.
(8) Default.
(a) If the petitioner fails to timely comply
with a prehearing order of a hearing officer, the hearing officer may, at his
discretion or upon motion issue an order to show cause why the petitioner
should not be deemed to have waived the right to an administrative hearing and
why the petition should not be dismissed.
(b) If the order to show cause is not
satisfied as required, the hearing officer shall recommend to the secretary the
entry of a final order dismissing the petition because the petitioner waived
the right to an administrative hearing.
(c) If the petitioner fails to appear at an
administrative hearing, the petitioner shall be deemed to have waived his right
to an administrative hearing and the hearing officer shall recommend to the
secretary the entry of a final order dismissing the petition because the
petitioner waived the right to an administrative hearing.
(9) Burden of proof.
(a) In review of a penalty assessment, a
notice of noncompliance and order for remedial measures, cessation order, or
the modification, vacation, or termination thereof under this section:
1. The cabinet shall have the burden of going
forward to establish a prima facie case as to the propriety of the penalty
assessment, notice of noncompliance and order for remedial measures, cessation
order, or modification, vacation, or termination thereof; and
2. The petitioner shall have the ultimate
burden of persuasion.
(b) In review of a determination of the
cabinet other than those set forth in paragraph (a) of this subsection, the
petitioner shall have the burden of going forward to establish a prima facie
case and the ultimate burden of persuasion as to the requested
relief.
(10) Hearing
officer determination. The hearing officer determination shall be made in
accordance with Section 4 of this administrative regulation.
Section 3. Administrative Hearing
Initiated by the Cabinet Relating to a Mineral Operation.
(1) Criteria for filing. The cabinet may
initiate an administrative hearing if:
(a) The
cabinet has reason to believe that a violation of KRS Chapter 350, 405 KAR
Chapters 5, or a permit condition has occurred or is occurring;
(b) A mineral permittee has failed to:
1. Pay a civil penalty assessed by the
cabinet;
2. Undertake a remedial
measure mandated by an order of the cabinet; or
3. Abate a violation the mineral permittee
was determined to have committed by an order of the cabinet;
(d) The cabinet has
reason to believe an additional remedy should be sought or an order should be
entered against a person to protect the environment or the health and safety of
the public.
(2)
Remedies. In an administrative hearing initiated by the cabinet or in a
counterclaim filed in response to a petition filed in accordance with Section 2
of this administrative regulation, the cabinet may seek a combination of the
following:
(a) Permit suspension or
revocation;
(b) Bond
forfeiture;
(c) Civil
penalty;
(d) A determination,
pursuant to KRS 350.085 and 350.130, that the person shall not be eligible to
receive another permit or conduct future mineral operations; or
(e) Any other relief to which the cabinet may
be entitled by KRS Chapter 350.
(3) Procedure for an administrative hearing
initiated by the cabinet.
(a) Filing of
administrative complaint. The cabinet shall initiate an administrative hearing
by filing an administrative complaint with the office incorporating the
following for each claim for relief:
1. A
statement of facts entitling the cabinet to administrative relief;
2. A request for specific relief;
and
3. A copy of any notice or
order or determination upon which relief is sought.
(b) Public participation. The office shall
post notice of the administrative hearing at the department's regional office
over the mineral operation, at least five (5) days before the administrative
hearing.
(c) Answer or responsive
pleading.
1. The respondent shall file with
the office an answer or responsive pleading within thirty (30) days of service
of the administrative complaint.
2.
The answer shall contain:
a.
(i) A statement specifically admitting or
denying the alleged facts stated in the administrative complaint or amended
administrative complaint; or
(ii)
If the person is without knowledge or information sufficient to form a belief
as to the truth of an allegation, then the person shall so state and it shall
have the effect of a denial;
b. Any defense to each claim for relief; and
c. Any other matter to be
considered on review.
3.
Failure to plead any available administrative affirmative defense in a required
answer or responsive pleading may constitute a waiver of the defense, except
that lack of jurisdiction over the subject matter and failure to state a claim
upon which relief can be granted shall not be waived by failure to assert them
in a responsive pleading.
4. An
allegation in a pleading to which an answer or responsive pleading is not
required or permitted shall be taken as denied or avoided.
5. An allegation in a pleading to which an
answer or responsive pleading is required may be deemed admitted if not denied
in the answer or responsive pleading.
(d) Amendment.
1. An administrative complaint may be amended
once as a matter of right prior to the filing of an answer and thereafter by
leave of the hearing officer upon proper motion.
2. The respondent shall have ten (10) days
from the filing of an amended administrative complaint or the time remaining
for filing an answer to the original complaint, whichever is longer, to file an
answer or responsive pleading to the amended administrative
complaint.
3. If the hearing
officer grants a motion to amend the administrative complaint, the hearing
officer shall set the time for an answer to be filed in the order granting the
motion.
(4)
Burden of proof.
(a) The cabinet shall have
the ultimate burden of persuasion.
(b) A respondent shall have the burden of
persuasion to establish an affirmative defense.
(5) Default.
(a) If the person against whom the
administrative complaint is filed fails to timely comply with a prehearing
order of a hearing officer, the hearing officer may, on his own initiative or
upon motion, issue an order to show cause why the person should not be deemed
to have waived his right to an administrative hearing and why a report and
recommended order adverse to the person shall not be referred to the
secretary.
(b) If the order to show
cause is not satisfied as required, the hearing officer shall recommend to the
secretary the entry of a final order in conformity with the relief requested by
the cabinet in its administrative complaint.
(c) If the person against whom the
administrative complaint is filed fails to appear at an administrative hearing,
the person shall be deemed to have waived his right to a hearing and the
hearing officer shall recommend to the secretary the entry of a final order in
conformity with the relief requested by the cabinet in its administrative
complaint.
(6) Hearing
officer determination and report. The hearing officer determination and report
shall be made in accordance with Section 4 of this administrative
regulation.
Section 4.
Hearing Officer Determination.
(1) The hearing
officer determination and report shall be made in accordance with
400 KAR 1:090, Section 20 and the provisions of this section.
(2) The hearing officer may recommend
suspension or revocation of the permit or forfeiture of the bond if the mineral
permittee has violated:
(a) Any provision of
KRS Chapter 350;
(b) 405 KAR
Chapter 5;
(c) A permit condition;
or
(d) A final order, including a
failure to pay a civil penalty assessed in a final order of the
cabinet.
(3) The hearing
officer may recommend, pursuant to KRS 350.085 and 350.130, that a person shall
not be eligible to receive another permit or conduct future mineral
operations.
(4) If the hearing
officer finds a violation exists, the hearing officer may recommend that a
person be required to abate, repair, alleviate, or prevent violations of KRS
Chapter 350, 405 KAR Chapter 5, or a permit condition.
(5) The hearing officer may in reviewing a
permit determination by the cabinet recommend:
(a) That a permit was issued in violation of
applicable statutory and regulatory criteria;
(b) Suspension or revocation of the permit;
or
(c) A remedial or compliance
action be taken by the mineral permittee.
Section 5. Judicial Review, Effect, and
Subsequent Proceedings.
(1) Judicial review.
Judicial review may be taken from a final order of the secretary to the
appropriate circuit court of competent jurisdiction in accordance with KRS 350.032 or 350.0305, as applicable.
(2) Effect of final order pending judicial
review. The commencement of a proceeding for judicial review of a final order
of the secretary shall not operate as a stay of a final order, unless
specifically ordered by the court of competent jurisdiction.
(3) Remand from a court.
(a) If a matter is remanded from a court for
a further proceeding, and to the extent the court's directive and time
limitations will permit, each party shall file with the office, a report
recommending a procedure to be followed in order to comply with the court's
order.
(b) The hearing officer
shall review the report and enter a special order governing the handling of a
matter remanded for a further proceeding.
Section 6. Informal Settlement Conference.
(1) As an alternative to the administrative
hearing established in Section 2 of this administrative regulation, a mineral
permittee or other person issued a proposed penalty assessment, notice of
noncompliance and order for remedial measures, or a cessation order, may
request an informal conference with the Director, Division of Mine Reclamation
and Enforcement. The request shall be made by submitting a written
request.
(2) The mineral permittee
or other person shall request an informal conference within thirty (30) days of
the issuance of the notice of noncompliance and order for remedial measures,
cessation order, or proposed penalty assessment.
(3) A request for an informal conference
shall not toll the time for requesting an administrative hearing pursuant to
Section 2 of this administrative regulation.
Section 7. Temporary Relief.
(1) Temporary Relief Available. Pending the
completion of the investigation and hearing provided for in this administrative
regulation, a hearing officer may, subject to review by the secretary, grant
temporary relief from a:
(a) Notice of
noncompliance and order for remedial measures or a cessation order issued for a
mineral operation pursuant to KRS Chapter 350 or 405 KAR Chapter 5;
or
(b) A permit or bond release
decision of the cabinet.
(2) Temporary Relief Not Available. A hearing
officer shall not grant temporary relief for:
(a) The issuance of a permit if the cabinet
made a determination to deny a permit in whole or in part; or
(b) The release of a bond if the cabinet made
a determination to deny a bond release request.
(3) A hearing officer shall grant or deny
temporary relief from a cessation order or bond release decision within five
(5) working days of receipt by the office of a temporary relief request, unless
waived by the petitioner.
(4)
Contents of the Petition. A person shall file a written petition for relief
with the office. The petition shall contain:
(a) The permit number;
(b) The name of the mineral
permittee;
(c) The date and number
of the notice of noncompliance and order for remedial measures or cessation
order from which relief is requested, if applicable;
(d) The name and telephone number of the
petitioner;
(e) A detailed
statement setting forth reasons why the relief should be granted;
(f) Facts supporting a substantial likelihood
that the person requesting the relief will prevail on the merits of the final
determination of the proceeding;
(g) A statement that the relief sought will
not adversely affect the health or safety of the public or cause significant,
imminent environmental harm to land, air, or water resources;
(h) If the petition relates to a cessation
order, a statement of whether or not the person waives the requirement for the
hearing officer to grant or deny the request for temporary relief within five
(5) working days of receipt of the petition by the office; and
(i) A statement of the specific relief
requested.
(5) Hearing
Process.
(a) In addition to the service
requirements of
400 KAR 1:090, Section 5, the petitioner shall serve other
parties with a copy of the petition simultaneously with the filing of the
petition in the office. If service is accomplished by mail, the petitioner
shall inform the other parties by telephone at the time of mailing that a
petition is being filed in the office and the contents of the
petition.
(b) Filing an Objection.
1. The representative of the cabinet and any
other party may communicate an objection to the petition to the hearing officer
and the petitioner by telephone.
2.
The representative of the cabinet and any other party may simultaneously reduce
any objection to writing.
3. A
written objection shall be immediately filed with the office and immediately
served upon the petitioner.
4. Ex
parte communication as to the merits of the proceeding shall not be conducted
with the hearing officer.
(c) Scheduling a Hearing.
1. Upon receiving an objection to the
petition, the hearing officer shall immediately order a location, time, and
date for the administrative hearing by communicating the information to the
cabinet, any other party, and the petitioner by telephone.
2. The hearing officer shall reduce the
communication to writing in the form of a memorandum to the file.
3. The administrative hearing on the request
for temporary relief shall be held in a location acceptable to both the cabinet
and the petitioner.
4. If the
petitioner did not waive the requirement for the hearing officer to grant or
deny temporary relief within five (5) working days of the office's receipt of
the petition for temporary relief as set forth in subsections (3) and (4)(h) of
this section, the hearing officer shall schedule the administrative hearing
within (5) five days of the office's receipt of the petition for temporary
relief.
(d) If an
evidentiary hearing is held, the hearing officer may require each party to
submit proposed findings of fact and conclusions of law to be considered at the
evidentiary hearing, which may be orally supplemented on the record at the
hearing.
(e) If at any time, the
petitioner requests a delay or acts in a manner so as to frustrate the
expeditious nature of the proceeding or fails to supply the information
required by the hearing officer, the action shall constitute a waiver of the
five (5) day requirement in subsection (3) of this section.
(6) Standard of review. A hearing
officer may grant temporary relief if:
(a) The
person requesting relief shows that there is substantial likelihood that the
findings on the merits in an administrative hearing conducted by the cabinet
will be favorable to the person; and
(b) The relief will not adversely affect the
health or safety of the public or cause significant, imminent environmental
harm to land, air, or water resources.
(7) Timing of hearing officer's
determination.
(a) If the petitioner did not
waive the requirement for a hearing officer to grant or deny the request for
temporary relief of a cessation order or bond release decision within five (5)
days of the office's receipt of the petition as required in subsections (3) and
(4)(h) of this section, the hearing officer shall either:
1. Orally rule on the request for temporary
relief at the conclusion of the hearing stating the reasons for the decision
and issue a written decision stating the reasons for the finding within three
(3) working days; or
2. Within
twenty-four (24) hours of completion of the administrative hearing, issue a
written decision stating the reasons for the finding.
(b) If the petitioner waived the requirement
for a hearing officer to grant or deny the request for temporary relief of a
cessation order or bond release decision within five (5) days of the office's
receipt of the petition in accordance with subsection (3) and (4)(h) of this
section or the petitioner did not request temporary relief from a cessation
order or a bond release decision, then the hearing officer shall either:
1. Orally rule on the request for temporary
relief at the conclusion of the hearing stating the reasons for the decision
and issue a written decision stating the reasons for the finding within twenty
(20) working days; or
2. Within
fifteen (15) days of completion of the administrative hearing issue a written
decision stating the reasons for the finding.