405 KAR 5:085 - Enforcement
RELATES TO: KRS 350.010(2), 350.130, 350.240, 350.300, 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. This administrative regulation establishes provisions governing the issuance of the various notices and orders to be issued by authorized representatives of the cabinet.
Section 1. General.
(1) The secretary of the cabinet may
designate authorized representatives to perform duties pursuant to the
administrative regulations contained in 405 KAR Chapter 5.
(2) Unless the secretary has made a written
order contrary to the terms of this subsection, personnel authorized by the
Commissioner of the Department for Natural Resources shall be the authorized
representatives of the cabinet for the purposes of this administrative
regulation.
Section 2.
Inspections.
(1) General. In accordance with
the provisions of 405 KAR Chapter 5, the cabinet shall conduct or cause to be
conducted inspections, studies, investigations, or other determinations to
obtain information and evidence to ensure that mineral operations shall be
conducted in accordance with the provisions of all applicable statutes and
administrative regulations, and all terms and conditions of the
permit.
(2) Right of entry and
access. Authorized employees of the cabinet shall have unrestricted right of
entry to all parts of the mineral operation for any purpose pursuant to 405 KAR
Chapter 5, including making inspections and delivering documents or information
of any kind to persons associated with the mineral operation.
(3) Timing and frequency of inspections.
(a) The cabinet shall conduct periodic
inspections of all mineral operations.
(b) 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 necessary to properly monitor
compliance.
(c) The cabinet shall
not have an obligation to give prior notice that an inspection will be
conducted or to obtain a warrant.
(4) Citizens request for inspections.
(a) Any citizen may request that the cabinet
conduct an inspection by furnishing to the cabinet a signed, written statement,
or an oral report followed by a signed, written statement:
1. Giving the cabinet reason to believe that
a condition or practice exists which is in violation of KRS Chapter 350, 405
KAR Chapter 5, or permit conditions; and
2. Listing a telephone number and address
where the person can be contacted.
(b) 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.
(c) Within a reasonable time, the cabinet
shall send to the person the following:
1. If
an inspection was not conducted, an explanation of the reason or reasons why;
or
2. If an inspection was
conducted, a description of the enforcement action taken, if any, or an
explanation of why enforcement action was not taken.
Section 3. Notice of
Noncompliance and Order for Remedial Measures.
(1) All authorized representative of the
cabinet shall issue a notice of noncompliance and order for remedial measures
if, on the basis of an inspection, he finds a violation of KRS Chapter 350, 405
KAR Chapter 5, a permit condition, or another applicable requirement.
(2) A notice of noncompliance and order for
remedial measures issued pursuant to this section shall be in writing and shall
be signed by the authorized employee who issued it. The notice shall contain
the following information:
(a) The nature of
the violation;
(b) The remedial
measures required, if any, which may include accomplishment of interim steps,
if appropriate;
(c) A reasonable
time table for remedial action, if any, which may include a time table for
accomplishment of interim steps, if appropriate; and
(d) An adequate description of the portion of
the mineral operation to which the notice applies.
(3) An authorized employee may modify an
order for remedial measures for good cause, including correction of errors,
changes in responsible parties, changes to remedial measures, and changes in
abatement dates.
(4) Extensions and
modifications of notices for remedial action. An authorized employee may extend
the time set for remedial action or for accomplishment of an interim step, if
the failure to meet the time previously set was not caused by lack of diligence
on the part of the person to whom the notice of noncompliance and order for
remedial measures was issued.
(a)
1. The total time for remedial action under
the notice, including all extensions, shall not exceed ninety (90) days from
the date of issuance of the notice except upon a showing by the mineral
permittee that it is not feasible to abate the violation within ninety (90)
calendar days due to one (1) or more of the circumstances established in
paragraph (b) of this subsection.
2. An abatement period exceeding ninety (90)
days pursuant to this subsection shall not be granted for a situation in which
the mineral permittee's failure to abate within ninety (90) days has been
caused by a lack of diligence or intentional delay by the mineral permittee in
completing the remedial action required.
(b) The following circumstances may qualify
mineral operations for an abatement period of more than ninety (90) days:
1. The mineral permittee of the ongoing
mineral operation has timely applied for and diligently pursued a permit
renewal or other necessary approval of designs or plans, but the permit or
approval, for reasons not within the control of the mineral permittee, has not
been and will not be issued prior to ninety (90) days after the valid permit or
approval expires or is required;
2.
There is a valid judicial order precluding abatement within ninety (90) days to
which the mineral permittee has diligently pursued all rights of appeal and to
which he has no other effective legal remedy;
3. The mineral permittee cannot abate within
ninety (90) days due to a labor strike;
4. Weather conditions exist that would
clearly cause more environmental harm than abatement measures would prevent;
or
(c) If an abatement period in
excess of ninety (90) days is approved by the cabinet, interim abatement
measures shall be imposed to the extent necessary to minimize harm to the
public and the environment.
(d)
1. If any of the conditions in paragraph (b)
of this subsection exist, the mineral permittee may request the authorized
representative of the cabinet to grant an abatement period exceeding ninety
(90) days.
2. The authorized
representative of the cabinet shall not grant an abatement period without the
approval of the Director of the Division of Mine Reclamation and Enforcement or
his designee, and the period granted shall not exceed the shortest possible
time necessary to abate the violation. The mineral permittee shall have the
burden of establishing by clear and convincing proof that he is entitled to an
extension under the provisions of this subsection.
3. In determining whether or not to grant an
abatement period exceeding ninety (90) days, the authorized representative of
the cabinet may consider relevant written or oral information from the mineral
permittee and other sources.
4. The
authorized representative of the cabinet shall promptly and fully document in
the applicable file the recommendation for granting or denying the request and
the reasons.
5. The authorized
representative's immediate supervisor shall review this document before
approving or disapproving the extended abatement period and shall promptly and
fully document the reasons for his approval or disapproval in the applicable
file.
(e) A
determination made pursuant to paragraph (d) of this subsection shall be in
writing and shall be subject to administrative and judicial review pursuant to
400 KAR 1:120.
(f) An extension granted pursuant to this
subsection shall not exceed ninety (90) days in length. For a situation in
which the condition or circumstance that prevented abatement within ninety (90)
days exists at the expiration of the extension, the mineral permittee may
request a further extension in accordance with the procedures of this
subsection.
(5) Based
upon the written recommendation of authorized representative of the cabinet who
issued the notice or noncompliance and order for remedial measures, the
director of the Division of Mine Reclamation and Enforcement may vacate a
notice of noncompliance and order for remedial measures determined to be issued
in error.
Section 4.
Order for Cessation and Immediate Compliance.
(1) Issuance.
(a) If the person to whom a notice of
noncompliance and order for remedial measures has been issued fails to comply
with the terms of the notice within the time for remedial action established in
the notice or as subsequently extended, an authorized representative of the
cabinet shall immediately issue to the person an order for cessation and
immediate compliance.
(b) An
authorized representative of the cabinet shall immediately issue an order for
cessation and immediate compliance if he finds, on the basis of an inspection,
a condition or practice; a violation of KRS Chapter 350; a violation of 405 KAR
Chapter 5; or a violation of a term or condition of the applicable 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.
(c) An authorized representative of the
cabinet shall immediately issue an order for cessation and immediate compliance
if he finds, on the basis of an inspection, that mineral operations are being
conducted by a person without a valid mineral operations permit for the
activities in accordance with this chapter.
(2) Form and content.
(a) An order for cessation and immediate
compliance shall be in writing and shall be signed by the authorized
representative of the cabinet who issued it. The order shall establish with
specificity:
1. The nature of the
violation;
2. A reasonable
description of the portions of the mineral operations to which it
applies;
3. The remedial measures,
if any, necessary to abate the violation in the most expeditious manner
possible; and
4. The time
established for abatement, if appropriate, including the time for complying
with any interim steps.
(b) When the authorized representative of the
cabinet issues an order for cessation and immediate compliance pursuant to
subsection (1)(b) or (c) of this section, a notice of noncompliance and order
for remedial measures shall also be issued.
(3) Effect.
(a)
1. The
order for cessation and immediate compliance shall require the cessation of all
mineral operations or the portions or operations thereof relevant to the
condition, practice, or violation covered by the order.
2. The order shall require the person to whom
it is issued to take affirmative steps necessary to abate the condition,
practice, or violation in the most expeditious manner possible. The order may
require the use of existing or additional personnel and equipment.
(b) The order shall remain in
effect until the condition, practice, or violation has been abated; until the
order is vacated, modified, or terminated in writing pursuant to subsection (4)
of this section; or until it is vacated, modified, or terminated by a hearing
officer.
(c) Reclamation operations
and other activities intended to protect public health and safety and the
environment shall continue during the period of an order unless the order
states that the reclamation operations and other activities shall
cease.
(4) Modification,
extension, vacation, and termination.
(a) An
authorized representative of the cabinet may, by written notice, modify or
terminate an order for cessation and immediate compliance issued under this
section for good cause and may extend the time for abatement if the failure to
abate within the time previously established was not caused by lack of
diligence on the part of the person to whom it was issued.
(b) The secretary or his authorized
representative shall terminate an order for cessation and immediate compliance,
by written notice to the person to whom the order was issued, if it is
determined that all conditions, practices, and violations listed in the order
have been abated. Termination shall not affect the right of the cabinet to
assess civil penalties for those violations or to impose other applicable
sanctions as authorized by law.
(c)
Based upon the written recommendations of the regional administrator and the
authorized representative of the cabinet who issued the order for cessation and
immediate compliance, the Director of the Division of Mine Reclamation and
Enforcement may vacate an order for cessation and immediate compliance
determined to have been issued in error.
(5) Within sixty (60) days after issuing an
order for cessation and immediate compliance, the cabinet shall notify in
writing a person who has been identified as owning or controlling the mineral
permittee, that the cessation order was issued and that the person has been
identified as an owner or controller.
Section 5. Notice of Inspection of
Noncompliance.
(1) Issuance. If an authorized
representative of the cabinet issues a notice of noncompliance and order for
remedial measures or an order for cessation and immediate compliance, the
authorized representative shall reinspect the area affected by the mineral
operations on or soon after the date established in the notice or order for
completion of remedial measures. When this reinspection occurs, the authorized
representative of the cabinet shall issue a notice of inspection of
noncompliance.
(2) Form and
content.
(a) The notice of inspection of
noncompliance shall establish if:
1. The
remedial measures have been completed, and the notice or order is therefore
terminated;
2. The remedial
measures have not been completed, but the notice or order is modified or
extended for good cause; or
3. The
remedial measures have not been completed.
(b) Following a determination that the
remedial measures have not been completed, the cabinet shall:
1. For situations in which the inspection was
a reinspection of a notice of noncompliance and order for remedial measures,
issue an order for cessation and immediate compliance; and
2. For situations in which the inspection was
a reinspection of an order for cessation and immediate compliance and if the
order for cessation and immediate compliance has not been abated, initiate:
a. An administrative hearing for suspension
or revocation of the permit or approval;
b. An administrative hearing for bond
forfeiture; or
c. Administrative
hearings for other appropriate relief, in accordance with
KRS 350.990 or
KRS 350.028.
Section 6. Service of
Notices and Orders.
(1) A notice of
noncompliance and order for remedial measures, an order for cessation and
immediate compliance, and a notice of inspection of noncompliance shall be
served on the person to whom it was issued or the person's designated agent
promptly after issuance.
(2)
(a) Each notice or order shall be served to
the person to whom the notice or order has been issued or to his designated
agent for service, by:
1. Hand;
2. Electronic mail with electronically
generated receipt;
3. Certified
mail, return receipt requested; or
4. Registered mail.
(b) The notice or order shall also be served
to the individual who, based upon reasonable inquiry by the authorized
representative, appears to be in charge at the site of the mineral operations
referred to in the notice or order. If the individual cannot be located at the
site, a copy of the notice or order may be tendered to an individual at the
site who appears to be an employee or agent of the person to whom the notice or
order has been issued.
(c) Service,
whether by electronic mail, hand, or standard mail, shall be complete upon
tender of the notice or order and shall not be incomplete because of refusal to
accept.
(d) For mineral operations,
service by mail shall be addressed to the designated agent for service; to the
electronic or permanent address of the mineral permittee as identified on the
permit or in the application; or, if an address is unavailable for the mineral
permittee in the application, to another address as is known to the cabinet. If
a person cannot be found present at the site of the mineral operations,
services by mail shall by itself be sufficient notice.
(3) Designation by a person of an agent for
service of notices and orders issued pursuant to this administrative regulation
and notices of hearing issued pursuant to
400 KAR 1:120, shall be made a part of the applicable
permit application. The person shall continue as agent for service of process
until written revision of the permit is approved that designates another person
as the agent.
(4) The cabinet may
furnish copies of notices and orders to any person having an interest which is
or may be adversely affected by the mineral operations and any person having an
interest in the permit.
Section
7. Penalties. The cabinet may assess penalties pursuant to
KRS 350.990.
Notes
STATUTORY AUTHORITY: KRS 350.028, 350.029, 350.240, 350.300
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