405 KAR 5:095. Administrative hearings, informal settlement conferences, and general practice provisions.

 

      RELATES TO: KRS 224.10-410, 224.10-470, 350.010(2), 350.032, 350.060, 350.085, 350.130, 350.240, 350.300, 350.305, 350.990

      STATUTORY AUTHORITY: KRS 350.028, 350.029, 350.0301, 350.050, 350.240, 350.300

      NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 requires the cabinet to promulgate administrative regulations pertaining to noncoal mineral operations to minimize their adverse effects on the citizens and the environment of the Commonwealth. KRS 350.0301 requires the cabinet to promulgate administrative regulations establishing formal and informal hearing procedures and administrative conferences. This administrative regulation establishes provisions governing requests for administrative hearings, initiation of administrative hearings by the cabinet, informal settlement conferences, procedures for the conduct of administrative hearings, service, and administrative hearings for orders to abate and alleviate.

 

      Section 1. Conduct of Administrative Hearings. (1)(a)1. Requests for an administrative hearing by persons other than the cabinet. A person aggrieved by an order or determination of the cabinet may request in writing that an administrative hearing be conducted by the cabinet, pursuant to KRS 350.0301. The request shall be filed with the Office of Administrative Hearings in Frankfort and shall include a short and plain statement identifying the basis of the request and the order or determination being contested.

      2. The request for an administrative hearing shall plainly identify the notice or order being contested if the request involves:

      a. A notice of noncompliance;

      b. An order for cessation and immediate compliance; or

      c. A proposed penalty assessment.

      3. The right to demand an administrative hearing shall be limited to a period of thirty (30) days, in accordance with KRS 350.0301(1).

      (b) Burden of proof.

      1. The cabinet shall have the burden of establishing a prima facie case as to the propriety of:

      a. Notices of noncompliance and orders for remedial measures;

      b. Orders for cessation and immediate compliance; or

      c. The modification, vacation, or termination as established in this section.

      2. The ultimate burden of persuasion shall rest with the petitioner. In all other cases in which the administrative hearing is requested by persons other than the cabinet, the petitioner shall have the burden of going forward to establish a prima facie case and the ultimate burden of persuasion as to the requested relief.

      (2) Initiation of an administrative hearing by the cabinet.

      (a) The cabinet may initiate an administrative hearing and may seek suspension or revocation of the permit and forfeiture of the bond if:

      1. It has reason to believe that a violation of KRS Chapter 350, 405 KAR Chapter 5, or a permit condition has occurred or is occurring;

      2. A mineral permittee has failed to:

a. Pay a civil penalty assessed in a final order of the cabinet;

      b. Undertake remedial measures mandated by a final order of the cabinet; or

      c. Abate violations it was determined to have committed by final order of the cabinet;

 

      3. The cabinet has reason to believe that additional remedies should be sought or that an order should be entered against a person to protect the environment or the health and safety of the public; or

      4. The criteria of 405 KAR 5:082 apply.

      (b) Burden of proof. If the cabinet initiates an administrative hearing, the cabinet shall have the ultimate burden of persuasion. The responding party shall have the burden of persuasion to establish an affirmative defense.

      (3) At an administrative hearing held pursuant to subsection (1) or (2) of this section, the cabinet may seek any combination of the following:

      (a) Permit suspension or revocation;

      (b) Bond forfeiture;

      (c) Civil penalties;

      (d) A determination, pursuant to KRS 350.060, 350.085, and 350.130, that a person or persons shall not be eligible to receive another permit or conduct future mineral operations; or

      (e) Relief to which it may be entitled by KRS Chapters 224 and 350.

      (4) If the cabinet revokes or suspends the permit, then mining operations on the permit area shall immediately cease, and the mineral permittee shall:

      (a) Complete reclamation within the time specified in the order, if the permit is revoked; or

      (b) Complete all affirmative obligations to abate all conditions, practices, and violations as specified in the order, if the permit is suspended.

      (5) Informal settlement conferences. As an alternative to the administrative hearings provided at subsection (1) of this section, a permittee or other person issued a notice of noncompliance, order for cessation and immediate compliance, or proposed penalty assessment may request an informal conference with the Director, Division of Mine Reclamation and Enforcement, by submitting a written request.

      (a) The time for requesting an informal conference shall be limited to a period of thirty (30) days following issuance of the notice of noncompliance, order for cessation and immediate compliance or proposed penalty assessment.

      (b) A request for informal conference shall not toll the time for requesting an administrative hearing pursuant to subsection (1) of this section.

      (6) Administrative summons.

      (a) Upon request pursuant to subsection (1) of this section, or upon initiation by the cabinet pursuant to subsection (2) of this section, the cabinet shall schedule an administrative hearing to be held not less than twenty-one (21) days after the notice of demand for an administrative hearing, unless the person complained against waives, in writing, the twenty-one (21) day period.

      (b) The administrative summons, including a notice of administrative hearing, shall be served in accordance with Section 2 of this administrative regulation and shall include the following:

      1. A statement of the time, place, and nature of the administrative hearing;

      2. A statement of the legal authority for the administrative hearing;

      3. Reference to the statutes and administrative regulations involved; and

      4. A short statement of the reason for granting of the administrative hearing.

      (c) For all administrative hearings initiated pursuant to subsection (2) of this section, notice shall also be mailed to intervenors and shall be posted at the department's appropriate regional office.

      (7) Prior to an administrative hearing as provided in this administrative regulation, and upon seven (7) days' written notice to all parties, the hearing officer may hold a prehearing conference to consider simplification of the issues, consolidation of actions, admission of facts and documents to avoid unnecessary proof, limitation of the number of witnesses, and other matters that aid in the disposition of the matter. Final disposition of the matter may be made at the conference by stipulation, settlement, agreed order, summary disposition, or default for nonappearance. The parties may hold additional conferences as necessary to resolve an issue in dispute.

      (8)(a) Any party to an administrative hearing may be represented by counsel, make oral or written argument, offer testimony, cross-examine witnesses, or take any combination of these actions. The cabinet may compel the attendance of witnesses and the production of documents by the issuance of subpoenas.

      (b) An independent hearing officer shall preside at the administrative hearing, shall keep order, and shall conduct the administrative hearing in accordance with reasonable administrative practice.

      (c) Oaths and affirmations shall be administered by the hearing officer or court reporter. The provisions of 400 KAR 1:030 and 1:040 shall apply to cases before the cabinet, consistent with KRS Chapters 224 and 350.

      (d) The hearing officer shall permit a party to represent himself, except a corporate party shall only be represented by an attorney licensed to practice law in the Commonwealth of Kentucky. The failure of a corporate party to appear by counsel shall be grounds for the Hearing Officer to issue a default order recommending that the Secretary grant or deny relief as appropriate.

      (e) Failure to appear shall be grounds for the Hearing Officer to issue a default order recommending that the Secretary grant or deny relief as appropriate.

      (9) Irrelevant, immaterial, or unduly repetitious evidence shall be excluded.

      (a) If necessary to ascertain facts not reasonably susceptible of proof under judicial rules of evidence, evidence not admissible thereunder may be admitted, except if precluded by statute, if it is of a type commonly relied upon by reasonable and prudent persons in the conduct of their affairs.

      (b) Hearing officers shall give effect to the rules of privilege recognized by law. Objections may be made and shall be noted in the record.

      (c) Subject to these requirements, if an administrative hearing will be expedited and the interests of the parties will not be prejudiced substantially, any part of the evidence may be received in written form. Documentary evidence may be received in the form of copies or excerpts.

      (d) Upon request, parties shall be given an opportunity to compare the copy with the original. A party may conduct cross-examinations required for a full and true disclosure of the facts. Notice may be taken of generally recognized technical or scientific facts within the cabinet's specialized knowledge.

      (e) Parties shall be notified either before or during the administrative hearing, or by reference in preliminary reports or otherwise, of the material noticed, including a staff memoranda or data, and the parties shall be afforded an opportunity to contest the material so noticed. The cabinet's experience, technical competence, and specialized knowledge may be utilized in the evaluation of the evidence.

      (10)(a) Each administrative hearing shall be recorded, and a transcript made available on the motion of a party or by order of the hearing officer. Unless otherwise agreed, the party requesting the transcript shall provide payment for the original, and all others desiring copies shall pay copying costs.

      (b) The record of the administrative hearing shall be open to public inspection and copies thereof shall be made available to a person upon payment of the actual cost of reproducing the original except as provided in KRS Chapter 224. The record shall consist of:

      1. All pleadings, motions, and rulings;

      2. Documentary and physical evidence received or considered;

      3. A statement of matters officially noticed;

      4. Questions and offers of proof, objections, and rulings thereon;

      5. Proposed findings and recommended orders; and

      6. Legal briefs.

      (c) If certified by the cabinet as a true and correct copy of the testimony, the transcript shall constitute the official transcript of the evidence.

      (11)(a) After the administrative hearing, the hearing officer shall issue a determination based on the preponderance of evidence appearing in the record as a whole. The determination shall establish if the violation did occur. If the violation occurred, the determination shall specify a recommended penalty and recommended remedial or compliance actions to be taken by the mineral permittee or the person conducting the mineral operation.

      (b) In addition to the requirements of paragraph (a) of this subsection:

      1. The hearing officer may recommend suspension or revocation of the permit or forfeiture of the bond if the mineral permittee has violated any provision of KRS Chapter 350; 405 KAR Chapter 5; a permit condition; or a final order, including failure to pay a civil penalty assessed in a final order of the cabinet;

      2. The hearing officer may recommend, pursuant to KRS 350.060, 350.085, and 350.130, that a person or persons shall not be eligible to receive another permit or conduct future mineral operations;

      3. The hearing officer may recommend that a person be required to abate, repair, alleviate, or prevent violations of KRS Chapter 350; 405 KAR Chapter 5; or a permit condition, if the violations are found to exist on the basis of a preponderance of the evidence; and

      4. For permit determinations, the hearing officer may recommend that a permit was issued in violation of applicable statutory and regulatory criteria, and may recommend suspension or revocation of the permit and may further recommend remedial or compliance actions to be taken by the mineral permittee.

      (12) The hearing officer shall recommend the amount of a civil penalty pursuant to KRS 350.990(1) and (2) and the recommendation shall be based exclusively on the record of the administrative hearing. The hearing officer may compute the amount of the penalty to be assessed irrespective of a computation offered by a party, and shall state with specificity the reason, supported by the record of the administrative hearing, for the penalty assessed in the final written report.

      (13)(a) The hearing officer shall, within thirty (30) days of the close of the administrative hearing record, make a report and a recommended order to the secretary. The report and recommended order shall contain the appropriate findings of fact and conclusions of law.

      (b) If the secretary finds upon written request of the hearing officer that additional time is needed, then the secretary may grant a reasonable extension.

      (c) The hearing officer shall mail, postage prepaid, a copy of the report and recommended order to all parties. The parties may file, within fourteen (14) days of receipt of the hearing officer's report and recommended order, exceptions to the report and recommended order. There shall not be other or further submissions.

      (14) The secretary shall consider the report and recommended order and any exceptions filed and pass upon the case within a reasonable time. The secretary may remand the matter to the hearing officer, adopt the report and recommended order of the hearing officer as the cabinet's final order, or issue the secretary’s own final order.

      (15) The cabinet shall mail the final decision of the cabinet to the parties. If an extension of time is granted by the secretary for a hearing officer to complete the report, the cabinet shall notify all parties upon the granting of the extension.

      (16) The secretary shall not grant an extension of time to the hearing officer for more than thirty (30) days for any one (1) extension, and no more than two (2) extensions shall be granted.

      (17) A final order of the cabinet shall be based on substantial evidence appearing in the record as a whole and shall establish the decision of the cabinet and the facts and law upon which the decision is based.

      (18) There shall not be ex parte communications between the parties or representatives of the parties and the hearing officer.

      (19) Any person aggrieved by a final order of the cabinet may seek judicial review as established in KRS 224.10-470 (pertaining to abate and alleviate orders), 350.0305(2) and 350.032(2).

      (20) This administrative regulation shall not prevent the cabinet from taking appropriate action in circuit court.

 

      Section 2. Service. (1) Except as provided in subsections (3) and (4) of this section, any proposed penalty assessment, notice of administrative hearing, or other document required to be served in accordance with this section shall be served by one (1) of the following methods:

      (a) The cabinet shall send copies of documents to the person to be served or instructed to be served by the initiating party, by certified mail or electronic mail pursuant to KRS 350.130.

      1. The cabinet shall enter this occurrence into the record.

      2. If the envelope is returned with an endorsement showing failure of delivery, that fact shall be entered in the record.

      3. Service by certified mail is complete upon delivery of the envelope or as provided by subsection (2) of this section. The return receipt shall be proof of the time, place, and manner of service. To the extent that the United States postal regulations permit authorized representatives of local, state, or federal governmental offices to accept and sign for "addressee only" mail, signature by the authorized representative shall constitute service on the addressee.

      (b) The cabinet may cause the document, with necessary copies, to be transferred for service to a person authorized by the secretary or by a statute to deliver them, or to a person authorized to deliver service for the purpose of an action in a court of law who shall serve the documents, and the return endorsed thereon shall be proof of the time and manner of service.

      (2)(a) Service is effective upon acceptance of the document by a mineral permittee at the permit address, upon refusal to accept the document by a person at the permit address, upon the United States Postal Service's inability to deliver the document if properly addressed pursuant to subsection (1)(a) of this section, or upon failure to claim the document prior to its return to the cabinet by the United States Postal Service. The return receipt shall be proof of the acceptance, refusal, inability to deliver, or failure to claim the document.

      (b) Service of documents by electronic mail shall be effective pursuant to KRS 350.130(7).

      (3) Any other method of service authorized by statute, administrative regulation, or the civil rules for an action in a court of law shall be supplemental to and shall be accepted as an alternative to any of the methods of service specified in this section.

      (4) In addition to the provisions of subsections (1) through (3) of this section, the provisions of 400 KAR 1:030, shall apply to service resulting from or attendant to administrative hearings established in this administrative regulation.

 

      Section 3. Temporary Relief. (1)(a) Pending completion of the investigation and administrative hearings provided for in this administrative regulation, a hearing officer may, subject to review by the secretary, grant temporary relief from a notice or order issued pursuant to KRS Chapter 350 or the administrative regulations or a determination by the cabinet to issue a permit or release a bond.

      (b) A petition for temporary relief shall be made in writing and filed with the Office of Administrative Hearing with notice to the Office of Legal Services. The petition shall contain the following:

      1. A detailed statement establishing the reasons temporary relief should be granted;

      2. A showing that there is a substantial likelihood that the petitioner will prevail on the merits upon a final determination of the proceeding;

      3. 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;

      4. If the petition relates to an order for cessation and immediate compliance, a statement of whether the requirement for a decision on the petition within five (5) working days is waived; and

      5. A statement of the specific relief requested.

      (2) A hearing officer may grant temporary relief after making a written finding that the relief is warranted, and shall state the reasons for the finding. The hearing officer shall grant or deny relief expeditiously. If the petition relates to an order for cessation and immediate compliance, relief shall be granted or denied within five (5) working days of receipt by the office of the petition. A hearing officer may grant temporary relief from notices and orders issued pursuant to 405 KAR Chapter 5 or a determination by the cabinet to issue a permit or release a bond, upon conditions as are deemed appropriate, only upon a finding that:

      (a) The parties were given an opportunity to be heard in a location acceptable to both the cabinet and the petitioner;

      (b) The petitioner has shown that there is a substantial likelihood that the findings on the merits in an administrative hearing conducted before the cabinet will be favorable to the petitioner;

      (c) 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; and

      (d) The relief sought is not the issuance of a permit if a permit has been denied, in whole or in part, by the cabinet, nor the release of a bond if a bond release request has been denied.

 

      Section 4. Orders to Abate and Alleviate. (1) If the secretary issues an order to abate and alleviate pursuant to KRS 224.10-410 the cabinet shall provide the permittee or person to whom the order was issued an opportunity to be heard not more than ten (10) days following issuance of the order, unless waived in writing by the permittee or person.

      (2) The order to abate and alleviate shall be filed with the Office of Administrative Hearings, which shall issue an administrative summons pursuant to Section 1(6) of this administrative regulation. Neither the scheduling nor holding of an administrative hearing pursuant to this section shall operate to terminate or stay the order, nor operate to relieve the permittee or person or persons named in the order from performing the affirmative obligations imposed in the order to abate and alleviate, unless the hearing officer shall find on the record that the obligations have been met or that the order was improper or inappropriate. (21 Ky.R. 773; Am. 1141; eff. 2-22-95; 38 Ky.R. 666; 994; 1304; 2-3-12.)