RELATES TO: KRS 224.10-410, 350.010, 350.028, 350.0301,
350.0305, 350.032, 350.060, 350.070, 350.085, 350.090, 350.093, 350.130,
350.255, 350.465, 350.990, 351.315, 351.345, 351.350, 30 C.F.R. Parts 730, 731, 732, 733, 735, 917, 30 U.S.C. 1253, 1255
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 requires
the cabinet to promulgate rules and administrative regulations pertaining to
surface coal mining and reclamation operations and coal exploration operations.
KRS Chapter 351 authorizes the cabinet to promulgate rules and administrative
regulations pertaining to explosives and blasting operations. This
administrative regulation establishes hearing, conference, notice, penalty
assessment, and other procedural and due process provisions for the permanent
regulatory program under KRS Chapter 350, and the hearing procedures pursuant
to KRS Chapter 351.
Section 1.
Definitions.
(6)
"Department" is defined by KRS 351.310(7).
(8) "Notice of noncompliance
and order for remedial measures" is defined by
405 KAR 7:001.
(9) "Operations" is defined by KRS 350.010(6).
(10) "Operator" is
defined by KRS 350.010(8).
(13) "Permittee" is defined
by KRS 350.010(21).
(14)
"Reclamation" is defined by KRS 350.010(12).
(15) "Secretary" is defined by KRS 350.010(11).
(16) "Significant,
imminent environmental harm" is defined by
405 KAR 7:001.
(17) "Surface coal mining and reclamation
operations" is defined by KRS 350.010(3).
(18) "Transfer, assignment, or sale of permit
rights" is defined by
405 KAR 7:001.
(19) "Willfully" and "willful violation" is
defined by
405 KAR 7:001.
Section
2. Applicability. This administrative regulation shall govern the
conduct by the cabinet of all administrative hearings:
(1) And conferences arising under KRS Chapter
350 relating to surface coal mining and reclamation operations and coal
exploration operations, including those matters initiated by a petition for
hearing filed on or before August 4, 2017; and
(2) Authorized by KRS Chapter 351 relating to
explosives and blasting operations.
Section 3. Proposed Penalty Assessment and
Request for Assessment Conference and Administrative Hearing.
(1) Notification. The cabinet shall notify a
person issued a notice of noncompliance and order for remedial measures or a
cessation order in writing of the cabinet's proposed penalty assessment. The
proposed penalty assessment shall be made by authorized personnel of the
department.
(2) Criteria. The
department, in determining the amount of the proposed penalty assessment, shall
give consideration to:
(a) History of previous
violations of the permittee or operator at the particular surface coal mining
and reclamation operation;
(b) The
seriousness of the violation, including any irreparable harm to the environment
and any hazard to the health or safety of the public;
(c) Whether or not the permittee, operator,
or person was negligent; and
(d)
The demonstrated good faith of the permittee, operator, or person in attempting
to achieve rapid compliance after notification of the violation, except that
good faith consideration shall not be applicable to any violation determined
not to be correctable.
(3) Service method; time.
(a) The department shall serve the notice of
proposed penalty assessment along with copies of applicable worksheets, to the
person to whom the notice or order was issued within fifteen (15) working days
after issuance of the final notice of inspection of noncompliance or final
notice of inspection of cessation order.
(b) The department shall serve the notice of
proposed penalty assessment by utilizing one (1) of the following:
1. A service method established in
400 KAR 1:090, Section 5(3) and (4); or
2.
Electronic mail pursuant to KRS 350.130.
(c) Service shall be deemed effective
pursuant to
400 KAR 1:090, Section 5(5) or upon delivery of the notice of
proposed penalty assessment with copies of worksheets to the recipient's inbox
by electronic mail as electronically communicated to the department by an
electronic registered receipt.
(d)
Failure to serve the proposed penalty assessment within fifteen (15) working
days after issuance of the final notice of inspection of noncompliance or final
notice of inspection of cessation order shall not be grounds for dismissal of
all or part of the assessment unless:
1. The
person against whom the proposed penalty has been assessed proves actual and
substantial prejudice as a result of the delay; and
2. The person makes a timely written
objection to the delay on or before the last date to request an assessment
conference under subsection (4)(b) of this section.
(4) Options of person issued
notice of proposed penalty assessment.
(a)
Waiver of rights to challenge proposed penalty assessment if no petition was
filed challenging the fact of the violation.
1. The person shall notify the department
that the person elects not to contest the proposed penalty
assessment.
2. If the person did
not file a timely petition requesting an administrative hearing as to the fact
of the violation pursuant to Section 7 of this administrative regulation, then
the secretary shall issue a final order finding that:
a. The person to whom the notice of
noncompliance and order for remedial measures or cessation order was issued has
waived all rights to an administrative hearing on the amount of the proposed
assessment;
b. The fact of the
violation is deemed admitted; and
c. The proposed penalty is due and payable
within thirty (30) days after the entry of the final order.
(b) Waiver of rights to
challenge penalty assessment and the person filed a petition challenging the
fact of the violation.
1. The person shall
notify the department that the person elects not to contest the proposed
penalty assessment.
2. If the
person filed a timely petition requesting an administrative hearing as to the
fact of the violation pursuant to Section 7 of this administrative regulation,
then the secretary shall issue a final order finding that:
a. The person to whom the notice of
noncompliance and order for remedial measures or cessation order was issued has
waived all rights to an administrative hearing on the amount of the proposed
assessment; and
b. The proposed
penalty is due and payable within thirty (30) days of the mailing of a final
order affirming the fact of the violation.
(c) Request for an assessment conference. The
person shall request in writing an assessment conference within thirty (30)
days:
1. Of receipt of the notice of proposed
penalty assessment; or
2. From the
date the notice of proposed penalty assessment is returned to the department as
undeliverable, unclaimed or refused.
(d) Petition for administrative hearing.
1. The person shall contest the proposed
penalty assessment or the fact of the violation by submitting a petition for an
administrative hearing in accordance with Section 6 or 7 of this administrative
regulation, or contest both by filing a petition for an administrative hearing
in accordance with Sections 6 and 7.
2. The fact of the violation shall not be
contested if it has been adjudicated by a final order of the secretary pursuant
to an administrative hearing commenced under Section 7 of this administrative
regulation.
(5) Failure to Request a Penalty Assessment
Conference. If a person issued a proposed penalty assessment fails to request
in writing an assessment conference in a timely manner as set forth in
subsection (4)(c) of this section or has not filed a timely petition in
accordance with Section 6 of this administrative regulation, then the cabinet
shall consider the failure to request an assessment conference a waiver of the
person's right to a conference. The secretary shall enter a final order
pursuant to paragraph (a) or (b) of this subsection.
(a) If the person did not file a timely
petition requesting an administrative hearing as to the fact of the violation
pursuant to Section 7 of this administrative regulation, then the secretary
shall issue a final order finding that:
1. The
person to whom the notice of noncompliance and order for remedial measures or
cessation order was issued has waived all rights to an administrative hearing
on the amount of the proposed assessment;
2. The fact of the violation shall be deemed
admitted; and
3. The proposed
penalty shall be due and payable within thirty (30) days after the entry of the
final order.
(b) If the
person filed a timely petition requesting an administrative hearing as to the
fact of the violation pursuant to Section 7 of this administrative regulation,
then the secretary shall issue a final order finding that:
1. The person to whom the notice of
noncompliance and order for remedial measures or cessation order was issued has
waived all rights to an administrative hearing on the amount of the proposed
assessment; and
2. The proposed
penalty shall be due and payable within thirty (30) days of the mailing of a
final order affirming the fact of the violation.
Section 4. Procedures
for Assessment Conference.
(1) Date and
location of conference; failure to timely schedule; substantial prejudice.
(a) If an assessment conference is requested,
the cabinet shall schedule the assessment conference within sixty (60) days
after the cabinet's receipt of the request, unless all parties agree
otherwise.
(b) An assessment
conference shall be held in the department's regional office of the mine site
subject to the proposed penalty assessment unless the parties agree otherwise.
1. If all the parties or their counsel
request to participate by telephone or other electronic means, then the
conference officer may hold the assessment conference telephonically or by any
other electronic means agreed to by the parties.
2. Any person who attends the assessment
conference in person at the department's regional office shall have access to
the telephonic conference line or the electronic means utilized during the
assessment conference.
(c) Failure by the cabinet to timely schedule
an assessment conference shall not be grounds for dismissal of all or part of
an assessment unless the person against whom the proposed penalty has been
assessed makes a timely objection on or before the date of the assessment
conference and proves actual and substantial prejudice as a result of the
delay.
(d) The scheduling of the
assessment conference shall not operate as a stay of any notice of
noncompliance and order for remedial measures or cessation order.
(2) Service; public participation.
(a) The cabinet shall serve notice of the
assessment conference by mail, postage prepaid.
(b) The cabinet shall also send a copy of the
notice of the assessment conference to any person who filed a report that led
to the issuance of the notice of noncompliance and order for remedial measures
or cessation order being contested.
(c) The cabinet shall post notice of the
assessment conference at the department's regional office of the mine site
subject to the proposed penalty assessment at least five (5) days before the
assessment conference.
(d) Any
person shall have the right to attend and participate in the assessment
conference.
(3)
Conference officer; requirements for administrative hearings not applicable.
The office shall assign a conference officer to hold the assessment conference.
The assessment conference shall not be governed by the requirements for
administrative hearings in 401 KAR
1:090 or by the provisions of
400 KAR 1:040.
(4) Report of conference
officer. The conference officer shall consider all relevant information
pertaining to the proposed penalty assessment. Within thirty (30) days after
the assessment conference is held, the conference officer shall issue a report
recommending to the secretary to either affirm, raise, lower, or dismiss the
proposed penalty assessment.
(5)
Service of report; documentation. The conference officer's report shall be
served by mail, postage prepaid, and shall include a worksheet if the penalty
has been raised or lowered. The reasons underlying the conference officer's
report shall be fully documented.
(6) Failure to attend; report to issue. If
the person requesting an assessment conference fails to attend the scheduled
assessment conference, the assessment officer shall within thirty (30) days of
the date of the scheduled assessment conference issue a report to the secretary
recommending that the proposed penalty assessment be affirmed.
(7) Statements not to be introduced at an
administrative hearing. In any administrative hearing commenced under Section 6
or 7 of this administrative regulation, evidence as to statements made by a
party at an assessment conference shall not be introduced by another party as
evidence or to impeach a witness.
(8) Challenge to conference officer's report.
(a) Any person issued a proposed penalty
assessment may file a petition requesting an administrative hearing to contest
the conference officer's recommended penalty. A petition shall comply with
Section 6 of this administrative regulation.
(b) The cabinet may file a petition to
request under Section 5 of this administrative regulation an administrative
hearing to contest the conference officer's recommended penalty.
(9) Failure to timely file a
petition challenging the conference report. If a person issued a proposed
penalty assessment fails to timely file a petition in accordance with Section 6
of this administrative regulation challenging the conference report, the
secretary shall issue a final order pursuant to paragraph (a) or (b) of this
subsection.
(a) If the person also did not
file a timely petition requesting an administrative hearing as to the fact of
the violation pursuant to Section 7 of the administrative regulation, then the
secretary shall issue a final order finding that:
1. The person to whom the notice of
noncompliance and order for remedial measures or cessation order was issued has
waived all rights to an administrative hearing on the amount of the proposed
assessment;
2. The fact of the
violation shall be deemed admitted; and
3. The proposed penalty shall be due and
payable within thirty (30) days after the entry of the final order.
(b) If the person filed a timely
petition requesting an administrative hearing as to the fact of the violation
pursuant to Section 7 of the administrative regulation, then the secretary
shall issue a final order finding that:
1. The
person to whom the notice of noncompliance and order for remedial measures or
cessation order was issued has waived all rights to an administrative hearing
on the amount of the proposed assessment; and
2. The proposed penalty shall be due and
payable within thirty (30) days of the mailing of a final order affirming the
fact of the violation.
Section 5. Administrative Hearing Initiated
by the Cabinet.
(1) Criteria for filing.
(a) The cabinet may initiate an
administrative hearing if:
1. The cabinet has
reason to believe that a violation of KRS Chapter 350 or 405 KAR Chapters 7
through 24 has occurred or is occurring;
2. A violation of a permit condition has
occurred or is occurring;
3. A
permittee, operator, or person has failed to:
a. Pay a civil penalty assessed by the
cabinet;
b. Undertake remedial
measures mandated by an order of the cabinet; or
c. Abate violations the permittee, operator,
or person was determined to have committed by an order of the
cabinet;
4. The
provisions of KRS 350.990(9) apply;
5. The cabinet has reason to believe
additional remedies should be sought or an order should be entered against a
person to protect the environment or the health and safety of the
public;
7. The cabinet has determined that revocation
of a license under KRS 351.345 is warranted; or
8. An explosive user or seller notified the
cabinet pursuant to KRS 351.350 that they intend to challenge a citation issued
under KRS 351.315 to 351.375.
(b) The cabinet may initiate an
administrative hearing to contest a conference officer's recommended penalty
and seek any combination of the relief set forth in subsection (2) of this
section.
(c) The cabinet shall
initiate an administrative hearing and shall seek revocation of the permit and
forfeiture of the bond or suspension of the permit pursuant to KRS Chapter 350
if:
1. The permittee, operator, or person has
willfully failed to comply with a cessation order; or
(2) Remedies.
(a) In an administrative hearing pursuant to
KRS Chapter 350 initiated by the cabinet or in a counter claim filed in
response to a petition filed in accordance with Section 6, 7, 8, or 9 of this
administrative regulation, the cabinet may seek one (1) or a combination of the
following:
1. Permit suspension or
revocation;
2. Bond
forfeiture;
3. Civil
penalty;
4. A determination,
pursuant to KRS 350.060, 350.085, and 350.130, that a person shall not be
eligible to receive another permit or conduct future operations;
5. A determination, pursuant to KRS 350.990(9), that any director, officer, or agent of a corporation willfully and
knowingly authorized, ordered, or carried out a violation or failed or refused
to comply with any final order; or
6. Any other relief to which the cabinet may
be entitled by KRS Chapter 350.
(b) In an administrative hearing pursuant to
KRS Chapter 351 initiated by the cabinet, the cabinet may seek one (1) or a
combination of the following:
1. Revocation of
license or permit pursuant to KRS 351.345 or KRS 351.315;
2. Civil penalty pursuant to KRS 351.350;
or
3. Any other relief to which the
cabinet may be entitled by KRS 351.315 to 351.375.
(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;
3. A copy of any notice, order, citation, or
determination upon which relief is sought; and
4. In a bond forfeiture action, the cabinet
shall attach documentation to the petition that the cabinet contacted the
bonding company or financial institution providing the bond, to determine if it
wanted the right to perform the measures necessary to secure bond release in
accordance with KRS 350.130.
(b) 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.
(c) 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.
(c) A respondent claiming an exemption shall
have the burden of persuasion to establish the qualification for the
exemption.
(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 or her own
initiative or upon motion, issue an order to show cause why the person should
not be deemed to have waived the 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 the 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.
Section
6. Administrative Hearing for Review of Proposed Assessment.
(1) Who may file. Any person issued a
proposed penalty assessment may file with the office a petition for an
administrative hearing to review the penalty.
(2) Filing petition; waiver.
(a) A person filing a petition for review of
a proposed penalty assessment who did not make a request for a Penalty
Assessment Conference pursuant to Section 4 of this administrative regulation
shall file the petition in the office within thirty (30) days of:
1. Receipt of the proposed penalty
assessment; or
2. The return
receipt date in the department of the notice of proposed penalty assessment, if
the proposed penalty assessment is returned undeliverable, unclaimed, or
refused.
(b) If the
person made a timely request for an assessment conference pursuant to Section 4
of this administrative regulation, the person shall file a petition for review
in the office within thirty (30) days of:
1.
Receipt of the conference officer's report; or
2. The return receipt date in the office of
the conference officer's report, if the conference officer's report is returned
undeliverable, unclaimed, or refused;
(c) The hearing officer shall not grant an
extension of time for filing a petition for review of a proposed penalty
assessment.
(d) If the hearing
officer, upon motion or his or her 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 enter an order in accordance with Section 4(9)(a) or (b) of
this administrative regulation.
(3) Content of the petition. The petition
shall include:
(a) A short and plain statement
indicating the reasons why the amount of the penalty is being
contested;
(b) If the amount of
penalty is being contested based upon a misapplication of the penalty formula,
a statement indicating how the penalty formula contained in
405 KAR 7:095 was
misapplied, along with a proposed penalty utilizing the penalty formula;
and
(c) Identification by reference
to the number for the notice of noncompliance and order for remedial measures
or cessation order number.
(4) Answer or responsive pleading.
(a) The respondent shall file with the office
an answer or 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 that 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 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.
(5) 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, which shall be set forth in the order granting the motion.
(6) Burden of proof. The cabinet
shall have the burden of going forward to establish a prima facie case as to
the amount of the penalty assessment and the ultimate burden of persuasion as
to the amount of the penalty assessment.
(7) Default.
(a) If the petitioner fails to timely comply
with a prehearing order of a hearing officer, the hearing officer, may at his
or her discretion or upon motion, issue an order to show cause why the person
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 in conformity with Section 4(9)(a) or (b) of this
administrative regulation.
(c) If
the person against whom the proposed penalty is assessed fails to appear at an
administrative hearing, the person shall be deemed to have waived the right to
a hearing and the hearing officer shall recommend to the secretary the entry of
a final order in conformity with Section 4(9)(a) or (b) of this administrative
regulation.
(8) Hearing
officer report; contents. If an administrative hearing is conducted, the
hearing officer shall incorporate in the report and recommended order
concerning a civil penalty, findings of fact on each of the four (4) criteria
set forth in
405 KAR 7:095, Section 3 and conclusions of law.
Section 7. Administrative Review
of a Notice of Noncompliance and Order for Remedial Measures and a Cessation
Order.
(1) Who may file. A person who
considers himself aggrieved by the issuance of a notice of noncompliance and
order for remedial measures or cessation order by the cabinet pursuant to the
provisions of KRS Chapter 350 or 405 KAR Chapters 7 through 24 and 805 KAR
Chapter 4 may file a petition for review with the office.
(2) Time for filing.
(a) A person filing a petition for review
under this section shall file in the office a petition within:
1. Thirty (30) days of the receipt of a
notice of noncompliance and order for remedial measures or cessation
order;
2. Thirty (30) days of
receipt of notice of modification, vacation, or termination of the notice of
noncompliance and order for remedial measures or cessation order;
3. Thirty (30) days of the return receipt
date in the department of the notice of noncompli-ance and order for remedial
measures or cessation order if the notice of noncompliance and order for
remedial measures or cessation order is returned as undeliverable, unclaimed,
or refused;
4. Thirty (30) days of:
a. Receipt of the proposed penalty
assessment; or
b. The return
receipt date in the department of the notice of proposed penalty assessment, if
the proposed penalty assessment is returned undeliverable, unclaimed, or
refused; or
5. Thirty
(30) days of:
a. Receipt of the penalty
assessment conference officer's report; or
b. The return receipt date in the office of
the penalty assessment conference officer's report, if the conference officer's
report is returned undeliverable, unclaimed, or refused.
(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 or her 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 subsection (2)(a) of
this section finding that the person waived the right to an administrative
hearing and affirming the notice of noncompliance and order for remedial
measures or cessation order.
(3) Content of the petition. A person filing
a petition for review shall incorporate in the petition regarding each claim
for relief:
(a) A statement of facts entitling
that person to administrative relief;
(b) A request for specific relief;
(c) An explanation of each specific alleged
error in the cabinet's determination;
(d) A copy of the notice of noncompliance and
order for remedial measures or cessation order sought to be reviewed;
and
(e) A statement as to whether
or not the person waives the opportunity for an evidentiary hearing;
(4) Answer or responsive pleading.
(a) The respondent shall file with the office
an answer or 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.
(5) 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 a petition amended as a matter of right 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 time for an answer to be filed shall be set forth in the
order granting the motion.
(6) Requirement to file subsequent notice of
noncompliance and order for remedial measures or cessation order.
(a) Within ten (10) days of receipt, a
petitioner shall file a copy of any subsequent notice of noncompliance and
order for remedial measures or cessation order that modifies, vacates, or
terminates the notice of noncompliance and order for remedial measures or
cessation order sought to be reviewed.
(b) Within ten (10) days of receipt, a
petitioner shall file a copy of any subsequent cessation order for failure to
timely abate the violation that is the subject to the notice sought to be
reviewed.
(c) If a petitioner
desires to challenge a subsequent notice of noncompliance and order for
remedial measures or cessation order, the petitioner shall file:
1. A separate petition for review in
accordance with this section; or
2.
A motion to amend a pending petition with the amended petition attached in
accordance with this section and within the time requirements of subsection (2)
of this section.
(d) A
petition for review of a related notice of noncompliance and order for remedial
measures or cessation order shall be subject to consolidation.
(7) Default.
(a) If the petitioner fails to timely comply
with a prehearing order of a hearing officer, the hearing officer may, at his
or her 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 affirming the notice of noncompliance and order for
remedial measures or cessation order and dismissing the petition.
(c) If the petitioner fails to appear at an
administrative hearing, the person shall be deemed to have waived the right to
an administrative hearing and the hearing officer shall recommend to the
secretary the entry of a final order affirming the notice of noncompliance and
order for remedial measures or cessation order and dismissing the
petition.
(8) Burden of
proof. In review of a notice of noncompliance and order for remedial measures
or cessation order or the modification, vacation, or termination thereof under
this section, the cabinet shall have the burden of going forward to establish a
prima facie case as to the propriety of the notice of noncompliance and order
for remedial measures or cessation order, or modification, vacation, or
termination thereof. The ultimate burden of persuasion shall rest with the
petitioner.
Section 8.
Request for Review of Permit Determinations Pursuant to KRS Chapter 350.
(1) Who may file. The permit applicant,
permittee, or person having an interest that is or may be adversely affected by
a permit determination of the cabinet may file a petition for review of the
following:
(a) Application for a new
permit;
(b) Application for a
permit revision and amendment, permit renewal, and the transfer, assignment, or
sale of rights granted under permit;
(c) Permit revision and amendment ordered by
the cabinet, except challenges of permit revision ordered as a remedial measure
in a notice of noncompliance shall be reviewed in an administrative hearing
pursuant to Section 7 of this administrative regulation; and
(d) Application for a coal exploration
permit.
(2) Time to
file; waiver.
(a) The permit applicant,
permittee, or person having an interest that is or may be adversely affected by
a permit determination of the cabinet shall file a petition for review with the
office within thirty (30) days from the date the permit applicant, permittee,
or person had actual notice of the determination or could reasonably have had
notice.
(b) If the hearing officer,
upon motion or his or her own initiative, finds that the permit applicant,
permittee, or 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 enter an order
stating that the permit applicant, permittee, or person waived the right to an
administrative hearing.
(3) Content of the petition. The petition for
review shall include:
(a) A clear statement of
the facts entitling the person requesting review to administrative
relief;
(b) An explanation of each
specific alleged error in the cabinet's decision, including reference to the
statutory and regulatory provisions allegedly violated;
(c) A request for specific relief;
and
(d) A statement whether or not
the person requests or waives the opportunity for an evidentiary
hearing.
(4) Answer or
responsive pleading.
(a) The respondent shall
file with the office an answer or 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 that 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 an answer or a
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.
(5) 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.
(6) 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.
(7) Default.
(a) If the petitioner fails to timely comply
with a prehearing order of a hearing officer, the hearing officer may, at his
or her discretion or upon motion, issue an order to show cause why the person
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 finding that the petitioner has waived the right to an
administrative hearing and dismissing the petition.
(c) If the person requesting the
administrative hearing fails to appear at a hearing, the hearing officer shall
recommend to the secretary the entry of a final order finding that the
petitioner has waived the right to an administrative hearing and dismissing the
petition.
(8) Burden of
proof.
(a) Petition to review application for
a new permit.
1. If the permit applicant is
seeking review, he or she shall have the burden of going forward to establish a
prima facie case and the ultimate burden of persuasion that:
a. The permit application complies with the
requirements of KRS Chapter 350 and 405 KAR Chapters 7 through 24; or
b. The permit terms or conditions
are improper.
2. If a
person other than the permit applicant is seeking review, the person shall have
the burden of going forward to establish a prima facie case and the ultimate
burden of persuasion that:
a. The permit
application fails to comply with the requirements of KRS Chapter 350 or 405 KAR
Chapters 7 through 24; or
b. The
cabinet should have imposed certain terms or conditions on the permit that were
not imposed.
(b) Petition to review the approval or
disapproval of an application for a permit renewal.
1. A party opposing the renewal of a permit
shall have the burden of going forward to establish a prima facie case;
and
2. The ultimate burden of
persuasion that the permit renewal application should be disapproved or that
the cabinet should have imposed certain terms or conditions on the renewal
permit that were not imposed.
(c) Petition to review the approval or
disapproval of an application for a permit revision or amendment, or an
application for the transfer, assignment, or sale of rights granted under
permit.
1. If the permit applicant is seeking
review, the permit applicant shall have the burden of going forward to
establish a prima facie case and the ultimate burden of persuasion that the
permit application complies with the requirements of KRS Chapter 350 and 405
KAR Chapters 7 through 24.
2. If a
person other than the permit applicant is seeking review, the person shall have
the burden of going forward to establish a prima facie case and the ultimate
burden of persuasion that the application fails to comply with the requirements
of KRS Chapter 350 or 405 KAR Chapters 7 through 24.
(d) Petition to review a permit revision or
amendment ordered by the cabinet.
1.The
cabinet shall have the burden of going forward to establish a prima facie case
that the permit should be revised or amended; and
2. The permittee shall have the ultimate
burden of persuasion that the revision or amendment is not
appropriate.
(e)
Petition to review a decision on an application for a coal exploration permit.
1. If the permit applicant is seeking review,
he or she shall have the burden of going forward to establish a prima facie
case and the ultimate burden of persuasion that the permit application complies
with the requirements of KRS Chapter 350 and 405 KAR Chapters 7 through
24.
2. If a person other than the
permit applicant is seeking review, the person shall have the burden of going
forward to establish a prima facie case and the ultimate burden of persuasion
that the application fails to comply with the requirements of KRS Chapter 350
or 405 KAR Chapters 7 through 24.
Section 9. Review of a Cabinet Determination.
(1) Who may file. A person who considers
himself or herself aggrieved by a determination of the cabinet made under KRS
Chapter 350 for which an administrative hearing is not specifically provided in
any other section of this administrative regulation may file a petition for
review of the determination pursuant to this section.
(2) Time to file; waiver.
(a) A person filing a petition for review
under this section 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 pursuant to this
section.
(c) If the hearing
officer, upon motion or his or her 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 enter an order stating that the person waived his right to
an administrative hearing.
(3) Content of the petition. The petition for
review shall contain:
(a) A statement of the
facts entitling the person to administrative relief;
(b) An explanation of each specific alleged
error in the cabinet's determination;
(c) A copy of the written determination to be
reviewed if applicable; and
(d) A
request for specific relief.
(4) 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 that 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 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.
(5) 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.
(6) 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.
(7) Default.
(a) If the petitioner fails to timely comply
with a prehearing order of a hearing officer, the hearing officer may, at his
or her discretion or upon motion, issue an order to show cause why that person
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 finding that the petitioner has waived the right to an
administrative hearing and dismissing the petition.
(c) If the petitioner fails to appear at an
administrative hearing, the petitioner shall be deemed to have waived the right
to a hearing and the hearing officer shall recommend to the secretary the entry
of a final order finding that he or she has waived the right to an
administrative hearing and dismissing the petition.
(8) Burden of proof. The petitioner shall
have the burden of going forward to establish a pri-ma facie case and the
ultimate burden of persuasion as to the requested relief.
Section 10. Proceeding for the Suspension or
Revocation of a Permit Pursuant to KRS Chapter 350 Because of a Pattern of
Violations.
(1) Initiation of the proceeding.
(a) A proceeding on a show cause order issued
by the cabinet pursuant to
KRS 350.028(4),
350.465(3)(f), and
405 KAR 12:020,
Section 8, shall be initiated by the filing of a copy of the show cause order
by the cabinet with the office at the same time the order is issued to the
permittee.
(b) A show cause order
shall set forth:
1. A list of the unwarranted
or willful violations that contribute to a pattern of violations;
2. A copy of each order or notice that
contains the violations listed as contributing to a pattern of
violations;
3. The basis for
determining the existence of a pattern of violations; and
4. A recommendation whether or not the permit
should be suspended or revoked, including the length and terms of a
suspension.
(2) Answer. The permittee shall have thirty
(30) days from service of the show cause order within which to file an answer
with the office, which shall state:
(a) The
reasons in detail why a pattern of violations, as established in
405 KAR 12:020, Section 8, does not exist or has not existed including all reasons for
contesting:
1. The fact of the violations
alleged by the cabinet as constituting a pattern of violations;
2. The willfulness of the violations;
or
3. Whether or not the violations
were caused by the unwarranted failure of the permittee;
(b) Mitigating factors the permittee believes
exist in determining the terms of the revocation or the length and terms of the
suspension;
(c) Other alleged
relevant facts; and
(d) Whether or
not an evidentiary hearing on the show cause order is desired.
(3) Burden of proof. In a show
cause proceeding, the cabinet shall have the burden of going forward to
establish a prima facie case for suspension or revocation of the permit. The
ultimate burden of persuasion that the permit should not be suspended or
revoked shall rest with the permittee.
(4) Determination by the hearing officer.
(a) Upon a determination by the hearing
officer pursuant to
405 KAR 12:020, Section 8, that a pattern of violations
exists or has existed, the hearing officer shall recommend the permit either be
suspended or revoked and the permittee be directed to complete necessary
remedial measures and reclamation operations. In making the recommendation, the
hearing officer need not find that all the violations listed in the show cause
order occurred, but only that sufficient violations occurred to establish a
pattern.
(b) If the permit is
suspended, the hearing officer may recommend preconditions to be satisfied
prior to the suspension being lifted.
(5) Default. If the permittee fails to timely
file an answer or appear at the administrative hearing, the permittee shall be
deemed to have waived the right to an administrative hearing and the hearing
officer shall recommend to the secretary the entry of a final order containing
the following:
(a) That each violation listed
in the show cause order occurred;
(b) That the violations were caused by the
permittee's unwarranted failure or were willfully caused;
(c) That a pattern of violations exists;
and
(d) That the permit shall be
suspended or revoked in accordance with the recommendation contained in the
show cause order.
Section
11. Temporary Relief.
(1)
Temporary relief available. Except as established in subsection (2) of this
section and 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) Notice of noncompliance and order for
remedial measures or a cessation order issued pursuant to KRS Chapter 350 or
405 KAR Chapters 7 through 24 or 805 KAR Chapter 4;
(b) A permit or bond release decision of the
cabinet; or
(c) Any action taken by
the cabinet pursuant to KRS Chapter 351.
(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 issued pursuant to KRS 350.130(1) or (4), or from a 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, the name of the permittee, the date and number of the notice of
noncompliance and order for remedial measures or cessation order from which
relief is requested, if applicable, and the name and telephone number of the
petitioner;
(b) A detailed
statement setting forth reasons why relief should be granted;
(c) Facts supporting a substantial likelihood
that the person requesting the relief will prevail on the merits of the final
determination of the proceeding;
(d) 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;
(e) If the petition relates to a cessation
order issued pursuant to KRS 350.130(1) or (4) or a decision to release a bond,
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
(f) 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) The representative of
the cabinet and any other party may indicate their objection to the application
by communicating the objection to the hearing officer and the petitioner by
telephone. Ex parte communication as to the merits of the proceeding shall not
be conducted with the hearing officer. The representative of cabinet and any
other party may simultaneously reduce their objections to writing. Written
objections shall be immediately filed with the office and immediately served
upon the petitioner.
(c) Scheduling
a hearing.
1. Upon receipt of communication
that there is 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 the
locality of the permit area, or at any other location acceptable to the
cabinet, the petitioner, and any other person named in the action.
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)(e) 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 the parties 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) A hearing
officer shall grant or deny relief expeditiously.
(b) If the petitioner did not waive the
requirement for a hearing officer to grant or deny the request for temporary
relief within five (5) days of the office's receipt of the petition as required
in subsections (3) and (4)(e) 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.
(c) If the petitioner waived the requirement
for a hearing officer to grant or deny the request for temporary relief within
five (5) days of the office's receipt of the petition in accordance with
subsections (3) and (4)(e) of this section, or the petitioner did not request
temporary relief from a cessation order or a bond release hearing, then 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.
Section 12. Petition for Recovery of Costs
and Expenses.
(1) Who may file and time to
file.
(a) A person may file a petition for an
award of costs and expenses, including attorneys' fees reasonably incurred, as
a result of the person's participation in a proceeding held pursuant to this
administrative regulation for an action brought pursuant to KRS Chapter 350
that results in an order of the secretary.
(b) A person shall file, with the cabinet
within forty-five (45) days of the date of entry of the final order, a petition
for an award of costs and expenses, including attorneys' fees.
(c) Failure of a person to timely file the
petition shall constitute a waiver of the person's right to an award.
(2) Content of the petition. A
person shall include in the petition filed under this section the name of the
party from whom costs and expenses are sought and the following:
(a) An affidavit setting forth in detail all
costs and expenses including attorneys' fees reasonably incurred for, or in
connection with, the person's participation in the proceeding;
(b) Receipts or other evidence of the costs
and expenses; and
(c) If attorneys'
fees are claimed, evidence concerning:
1. The
hours expended on the case;
2.The
customary commercial rate of payment for the services in the area;
and
3. The experience, reputation,
and ability of the individual or individuals performing the services.
(3) Answer.
(a) The respondent shall file with the office
within thirty (30) days from service of the petition an answer or other
responsive pleading.
(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 that 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.
(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.
(4) Criteria for awarding of costs.
(a) Appropriate costs and expenses including
attorneys' fees may be awarded to a person from the permittee, if:
1. The person initiated an administrative
proceeding reviewing an enforcement action, and a Secretary's Order was issued
finding that, on or after May 18, 1982:
a. A
notice of noncompliance and order for remedial measures or a cessation order
was properly issued for violations of KRS Chapter 350, KAR Title 405 or a
permit condition; or
b. An imminent
hazard existed; or
2.
The person participated in an administrative proceeding reviewing an
enforcement action, and a Secretary's Order was issued finding that, on or
after May 18, 1982:
a. A notice of
noncompliance and order for remedial measures or a cessation order was properly
issued for violations of KRS Chapter 350, KAR Title 405, or a permit condition;
or
b. An imminent hazard existed;
and
c. The hearing officer finds
and the secretary concurs that the person made a substantial contribution to
the full and fair determination of the issues.
(b) Appropriate costs and expenses including
attorneys' fees may be awarded to a person other than a permittee or his
representative from the cabinet, if:
1. The
person initiated or participated in any proceeding under KRS Chapter 350;
and
2. The hearing officer finds
and the secretary concurs that the person made a substantial contribution to a
full and fair determination of the issues.
(c) Appropriate costs and expenses including
attorneys' fees may be awarded to a permittee from the cabinet if the permittee
demonstrates that the cabinet initiated an administrative hearing or issued a
notice of noncompliance and order for remedial measures or a cessation order:
1. In bad faith; and
2. For the purpose of harassing or
embarrassing the permittee.
(d) Appropriate costs and expenses including
attorneys' fees may be awarded to a permittee from a person if the permittee
demonstrates that the person initiated an administrative hearing under this
administrative regulation or participated in an administrative hearing or
conference:
1. In bad faith; and
2. For the purpose of harassing or
embarrassing the permittee.
(e) Appropriate costs and expenses including
attorneys' fees may be awarded to the cabinet from a person if the cabinet
demonstrates that:
1. A person applied for
review pursuant to this administrative regulation in bad faith and for the
purpose of harassing or embarrassing the cabinet or the Commonwealth;
or
2. A party participated in an
administrative hearing or conference in bad faith and for the purpose of
harassing or embarrassing the cabinet or the Commonwealth.
(5) An award under this section
may include reimbursement for costs and expenses, including attorneys' fees and
expert witness fees, reasonably incurred.
Section 13. Location of an Administrative
Hearing.
(1) An administrative hearing
conducted in accordance with this administrative regulation shall be held at
the location designated by the hearing officer unless a written request for a
hearing at or close to the mine site is submitted with the initiating document
or an answer.
(2) The department's
regional office for the mine site shall be deemed reasonably close, unless a
closer location is requested by a party to the case and agreed to by the
hearing officer.
(3) An
administrative hearing pursuant to KRS Chapter 351.315 to 351.375 shall be held
in Frankfort at the location designated by the hearing officer.
Section 14. Judicial Review,
Effect, and Subsequent Proceeding.
(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 be allowed an opportunity to submit
to the hearing officer, a report recommending a procedure to be followed in
order to comply with the court's order.
(b) The hearing officer shall review each
report and enter a special order governing the handling of the matter remanded
to it for further proceedings by a court.