405 KAR 12:010 - General provisions for inspection and enforcement
RELATES TO: KRS 350.020, 350.028, 350.050, 350.085, 350.113, 350.130, 350.151, 350.465, 350.990, 30 C.F.R. Parts 730-733, 735, 840.11 -.16, 917, 30 U.S.C. 1253, 1255, 1267
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in
pertinent part requires the cabinet to rigidly enforce administrative
regulations promulgated to control the injurious effects of surface
Section
1. Applicability. The provisions of this chapter shall apply to
all surface coal mining and reclamation operations and coal exploration and
reclamation operations.
Section 2.
Inspection and Enforcement. In accordance with the provisions of this chapter,
the cabinet shall conduct or cause to be conducted inspections, studies,
investigations, or other determinations as it deems reasonable and necessary to
obtain information and evidence with which to ensure that surface coal mining
and reclamation operations and coal exploration and reclamation operations are
conducted in accordance with the provisions of KRS Chapter 350; 405 KAR
Chapters 7 through 24; and all terms and conditions of the applicable permit or
approval.
Section 3. Timing and
Conduct of Inspections.
(1) Right of entry and
access. Authorized representatives of the cabinet shall:
(a) Have unrestricted right of entry and
access to areas affected by coal exploration and reclamation operations and
areas affected by surface coal mining and reclamation operations for any
purpose associated with their proper duties pursuant to KRS Chapter 350 or 405
KAR including but not limited to activities associated with the conducting of
inspections; and
(b) At reasonable
times and without delay, have unrestricted access to and authority to copy any
records required to be kept under KRS Chapter 350 and 405 KAR and have
unrestricted access to, for the purpose of inspecting, any monitoring equipment
required under or pursuant to KRS Chapter 350 or 405 KAR.
(2) Presentation of credentials. Authorized
representatives of the cabinet shall present credentials for identification
purposes upon request by a representative of the permittee , operator or person
conducting the coal exploration and reclamation operations on the affected
area .
(3) Prior notice. The cabinet
shall have no obligation to give prior notice that an inspection will be
conducted.
(4) Timing. Inspections
shall ordinarily be conducted at irregular and unscheduled times during normal
workdays, but may be conducted at night or on weekends or holidays if the
cabinet deems the inspections necessary to properly monitor compliance with KRS
Chapter 350; 405 KAR Chapters 7 through 24; and terms and conditions of the
applicable permit or approval.
(5)
Frequency of inspections.
(a) Partial
inspections of surface coal mining and reclamation operations. A partial
inspection of surface coal mining and reclamation operations is an on-site or
aerial review of a permittee , operator, or person's compliance with some of the
permit terms and conditions and some of the requirements of KRS Chapter 350 and
405 KAR Chapters 7 through 24. Unless the cabinet has received notice of
temporary cessation under
405 KAR
16:010, Section 7, or
405 KAR
18:010, Section 5, the cabinet shall conduct an
average of at least one (1) partial inspection per month of each area affected
by surface coal mining and reclamation operations permitted under 405 KAR
Chapter 8 at least until phase I reclamation, as determined under
405
KAR 10:040, has been completed on the entire permit
area . After phase I reclamation, or if the cabinet has received notice of
temporary cessation, the cabinet shall conduct partial inspections until the
cabinet determines that the permit area is sufficiently stable with respect to
mass stability, erosion, revegetation, water quality and other reclamation
requirements so that the quarterly complete inspections required under
paragraph (b) of this subsection will provide adequate inspection of the permit
area .
(b) Complete inspections of
surface coal mining and reclamation operations. A complete inspection of
surface coal mining and reclamation operations is an on-site review of a
permittee , operator, or person's compliance with all of the permit terms and
conditions and all of the requirements of KRS Chapter 350 and 405 KAR Chapters
7 through 24 within the entire area disturbed or affected by surface coal
mining and reclamation operations. The cabinet shall conduct an average of at
least one (1) complete inspection per calendar quarter of each area affected by
surface coal mining and reclamation operations permitted under 405 KAR Chapter
8.
(c) The cabinet shall conduct
inspections of coal exploration and reclamation operations as necessary to
ensure compliance with KRS Chapter 350 and 405 KAR Chapters 7 through
24.
(6) Aerial
inspections.
(a) Aerial inspections shall be
conducted in a manner that reasonably insures the identification and
documentation of conditions at each surface coal mining and reclamation site
and each coal exploration and reclamation site inspected.
(b) Any potential violation observed during
an aerial inspection shall be investigated on site within three (3) days
provided that any indication of a condition, practice, or violation
constituting cause for the issuance of a cessation order under
405 KAR 12:020,
Section 3(1)(b) and (c) shall be investigated on site immediately and provided
further that an aerial inspection which necessitates an on-site inspection of a
potential violation shall not be considered to be an additional partial
inspection for the purposes of subsection (5) of the section.
Section 4. Records of
Inspections.
(1) Authorized representatives of
the cabinet shall make and maintain written records of inspections and other
activities including observations made and factual matters discovered. A copy
of the records shall be made available to the permittee , operator, or person
conducting the coal exploration and reclamation operations and shall be
available for public inspection at the appropriate regional office of the
department in accordance with the Kentucky Open Record Laws,
KRS
61.870 through
KRS
61.884, until at least five (5) years after
final bond release on the entire permit area or until at least five (5) years
after bond forfeiture. For unpermitted areas, the cabinet shall maintain the
records until at least five (5) years after the final action of the cabinet
regarding the operations.
(2)
(a) For permitted areas for which final bond
release has been granted pursuant to 405 KAR Chapter 10; for areas for which
bond has been forfeited pursuant to 405 KAR Chapter 10; and for unpermitted
areas for which the cabinet has taken final action, the cabinet may, at its own
option and expense and as an alternative to maintaining the information for
public inspection at the location identified in accordance with subsection (1)
of this section, retain information at a location other than the department 's
appropriate regional office and, at the request of any person:
1. Provide copies of the information promptly
by mail to the person; or
2.
Transfer the information to the department 's appropriate regional office for
public inspection.
(b)
For situations in which the cabinet provides information in accordance with
this subsection, the cabinet shall maintain, for public inspection at the
department 's appropriate regional office, a description of the information
available for mailing or submission to the appropriate regional office and the
procedures to be used for obtaining the information.
(3) Upon inspection of coal exploration and
reclamation operations and surface coal mining and reclamation operations,
authorized representatives of the cabinet shall collect evidence of every
observed violation of a permit term or condition, every observed violation of a
term or condition of approval (for coal exploration and reclamation operations
requiring cabinet approval), and every observed violation of a requirement of
KRS Chapter 350 or an administrative regulation promulgated pursuant
thereto.
(4) The cabinet shall
preserve evidence collected pursuant to subsection (3) of this section where
appropriate in order that the evidence may be presented at hearings held
pursuant to
400
KAR 1:110.
Section 5. Penalties and Sanctions. Any
person who violates any provision of KRS Chapter 350; any provision of 405 KAR
Chapters 7 through 24; any permit term or condition; or any term or condition
of approval (for coal exploration and reclamation operations requiring cabinet
approval) and any person who fails to perform the duties imposed by these
provisions or who fails to comply with a determination or order of the cabinet
pursuant to these provisions shall be subject to civil and criminal penalties
as set forth in
KRS
350.465(3)(h),
KRS 350.990,
400
KAR 1:110, and any other applicable provision of law
and shall be subject to applicable sanctions as set forth in
KRS
350.130 or any other applicable provision of
law. Violations by any person conducting surface coal mining and reclamation
operations on behalf of a permittee shall be attributed to the permittee ,
unless the permittee establishes that they were acts of deliberate sabotage.
Violations by any person conducting coal exploration and reclamation operations
shall be attributed to the person conducting the coal exploration and
reclamation operations or the person identified in the notice of intention to
explore or in the application for coal exploration and reclamation approval
submitted pursuant to
405 KAR 8:020,
unless the person establishes that they were acts of deliberate
sabotage.
Section 6. Public
Participation. Any person shall have the opportunity to request an inspection
and to participate in enforcement actions of the cabinet as provided in
405 KAR
12:030.
Section
7. Formal Review. Any person having an interest which is or may be
adversely affected by the issuance, modification, vacation, or termination of a
notice or order may request review of that action pursuant to
400
KAR 1:110. The filing of a request for a hearing shall
not operate as a stay of any notice or order or any modification, termination,
or vacation thereof.
Notes
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