RELATES TO:
KRS
350.020,
350.028,
350.050,
350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in
pertinent part directs the cabinet to rigidly enforce the law and
administrative regulations promulgated to control the injurious effects of
surface coal mining and reclamation operations. KRS Chapter 350 in pertinent
part directs the cabinet to develop administrative regulations to allow persons
who have an interest which is or may be adversely affected to participate at
every significant part of the administrative process. This administrative
regulation sets forth the requirements for public participation in the
inspection process. This administrative regulation sets forth procedures for
citizen requests for inspection and review by the cabinet of inspection and
enforcement decisions.
Section 1.
Citizen Requests for Inspection.
(1) Any
citizen may request that the cabinet conduct an inspection by furnishing to an
authorized representative of the secretary, a signed, written statement, or an
oral report followed by a signed written statement, giving the authorized
representative reason to believe that a violation, condition, or practice in
violation of KRS Chapter 350, administrative regulations promulgated pursuant
thereto, or permit conditions exists, and setting forth a telephone number and
address at which the person can be contacted.
(2) The identity of any person supplying
information to the cabinet relating to a possible violation or imminent danger
or harm shall remain confidential with the cabinet if requested by that person,
unless disclosure is required by law.
(3) Within ten (10) days of the inspection,
or if there is no inspection, within fifteen (15) days of receipt of the
person's written statement, the cabinet shall send to the person the following:
(a) If no inspection was conducted, an
explanation of the reasons why no inspection was conducted;
(b) If an inspection was conducted, a
description of the enforcement action taken, if any, which may consist of
copies of the inspection report and all notices and orders issued as a result
of the inspection or an explanation of why no enforcement action was taken;
and
(c) An explanation of the
person's right, if any, to administrative review by an authorized
representative of the cabinet, of the cabinet's determinations and actions
pursuant to inspection and enforcement.
(4) The cabinet shall give copies of all
materials in subsection (3) of this section within the time limits specified in
that subsection to the person alleged to be in violation. The name of the
person requesting the inspection shall be removed unless disclosure of that
person's identity is permitted under subsection (2) of this section.
Section 2. Review of Decision Not
to Inspect or Enforce.
(1) Any person having
an interest which is or may be adversely affected by a surface coal mining and
reclamation operation or coal exploration operation may request the cabinet to
review an authorized representative's decision not to inspect or not to take
enforcement action with respect to any violation alleged by that person in a
request for inspection pursuant to this administrative regulation. The request
for a review shall be in writing and shall include a statement of how the
person is or may be adversely affected and why the decision should be
reviewed.
(2) An authorized
representative of the cabinet shall conduct the review and inform the person
and the permittee alleged to be in violation, in writing, of the results of the
review within thirty (30) days of his receipt of the request.
(3) Administrative review under this section
shall not affect any right to formal review pursuant to
400
KAR 1:110, Section 9 or other relief authorized by
law.
Section 3. Citizen
Requests for Review of Adequacy and Completeness of Inspections.
(1) Any person having an interest which is or
may be adversely affected by a surface coal mining and reclamation operation or
coal exploration operation may notify the Commissioner of the Department for
Natural Resources in writing of any alleged failure on the part of the cabinet
to make adequate and complete or periodic inspections. The notification shall
include sufficient information to create a reasonable belief that such failure
exists and to demonstrate that the person has an interest which is or may be
adversely affected.
(2) The
commissioner shall, within fifteen (15) days of receipt of the notification,
determine whether the cabinet's inspections have been adequate, complete and
periodic, as provided in this chapter, and if not, shall immediately order an
inspection. The commissioner shall also furnish the complainant with a written
statement of the reasons for such determination and the actions, if any, taken
to remedy the failure.
Section
4. Citizens Requests to Accompany Inspector.
(1) Any person requesting an inspection under
Section 1 may request to accompany the authorized representative of the cabinet
during an inspection relative to the violation, condition, or practice with
which the request was concerned.
(2) Such person shall have a right of entry
to, upon and through the coal exploration or surface coal mining and
reclamation operation about which the person supplied information, provided
that the person is in the presence of and is under the control, direction, and
supervision of the authorized representative of the cabinet while on the
property. Such right of entry does not include a right to enter buildings
without consent of the person in control of the building or without a search
warrant.
(3) The authorized
representatives of the cabinet shall exercise reasonable discretion in
establishing the time and manner for inspections under this section. Nothing in
this section shall be construed to place a duty of care upon the cabinet for
persons accompanying authorized representatives of the cabinet.
(4) Any person desiring to participate in an
inspection as provided in this section shall provide his or her own
transportation to the site, and shall wear a hard hat and toe caps, to be
supplied by the cabinet.