405 KAR 12:020. 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, 840.13-.14, 840.16, 843, 30 U.S.C. 1253,
1255, 1271
STATUTORY
AUTHORITY: KRS 350.020, 350.028, 350.050, 350.130, 350.465
NECESSITY,
FUNCTION, AND CONFORMITY: KRS Chapter 350 authorizes the cabinet to promulgate
administrative regulations to control the injurious effects of surface coal
mining and reclamation operations. This administrative regulation establishes
the conditions for issuance and general form of various kinds of notices and
orders to be issued by the cabinet, procedures for an informal hearing, and
suspension and revocation requirements.
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 Chapters 7 through 24.
(2)
Subject to 405 KAR Chapters 7 through 24 or unless the secretary has made a
written order contrary to the terms of this subsection, personnel authorized by
the commissioner of the department shall be authorized representatives of the
cabinet for the purposes of Sections 2, 3, and 4 of this administrative regulation.
Section
2. Notice of Noncompliance and Order for Remedial Measures. (1) Issuance. An
authorized representative of the cabinet shall issue a notice of noncompliance
and order for remedial measures if, on the basis of inspection, he finds a violation
of:
(a)
KRS Chapter 350;
(b)
405 KAR Chapters 7 through 24;
(c)
A term or condition of a permit;
(d)
A term or condition of approval (for coal exploration and reclamation
operations requiring cabinet approval); or
(e)
Any other applicable requirement.
(2)
Form and content. 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 representative of the cabinet who issued it. The notice shall establish
with reasonable specificity:
(a)
The nature of the violation;
(b)
The remedial action required, if any, which may include accomplishment of
interim steps if appropriate;
(c)
A reasonable time for remedial action, if any, which may include time for
accomplishment of interim steps if appropriate; and
(d)
A reasonable description of the portions of the surface coal mining and
reclamation operations or coal exploration and reclamation operations to which
the notice applies.
(3)
Service. Service of a notice of noncompliance and order for remedial measures
shall be in the manner established in Section 5 of this administrative
regulation.
(4)
Extension. An authorized representative of the cabinet may, by written notice,
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 permittee or the person conducting the coal
exploration and reclamation operations 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 situations in which the permittee's failure or the
failure of the person conducting the coal exploration and reclamation
operations to abate within ninety (90) days has been caused by a lack of diligence
or intentional delay by the permittee or the person conducting the coal
exploration and reclamation operations in completing the remedial action
required.
(b)
The following circumstances may qualify surface coal mining and reclamation
operations or coal exploration and reclamation operations for an abatement
period of more than ninety (90) days:
1.
The permittee of the ongoing surface coal mining and reclamation operations or
the person conducting the coal exploration and reclamation operations 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 permittee or the person conducting the coal
exploration and reclamation operations, 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 permittee or the person conducting the coal exploration and
reclamation operations has diligently pursued all rights of appeal and to which
he has no other effective legal remedy;
3.
The permittee or the person conducting the coal exploration and reclamation
operations cannot abate within ninety (90) days due to a labor strike; or
4.
If climatic conditions preclude abatement within ninety (90) days, or if, due
to climatic conditions, abatement within ninety (90) days clearly:
a.
Would cause more environmental harm than it would prevent; or
b.
Requires action that would violate safety standards established by statute or
regulation under the Mine Safety and Health Act, 30 U.S.C. 801 through 965.
(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
permittee or the person conducting the coal exploration and reclamation
operations 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 abatement period granted shall not
exceed the shortest possible time necessary to abate the violation.
3.
The permittee or the person conducting the coal exploration and reclamation
operations shall have the burden of establishing by clear and convincing proof
that he is entitled to an extension under the provisions of this subsection. 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 permittee, the person conducting the coal
exploration and reclamation operations, and other sources. The authorized
representative of the cabinet shall promptly and fully document in the
applicable file his recommendation and reasons for granting or denying the request.
4.
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
405 KAR 7:092.
(f)
An extension granted pursuant to this subsection shall not exceed ninety (90)
days in length. In situations in which the condition or circumstance that
prevented abatement within ninety (90) days exists at the expiration of the
extension, the permittee or the person conducting the coal exploration and
reclamation operations may request a further extension in accordance with the
procedures of this subsection.
(5)
Modification. An authorized representative of the cabinet may, by written
notice, 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.
(6)
Termination. An authorized representative of the cabinet shall, by issuance of
a notice of inspection of noncompliance, provide written notice to the person
to whom a notice of noncompliance and order for remedial measures has been
issued that the notice is terminated when the authorized representative of the
cabinet determines that all violations listed therein have been corrected. The
termination shall not affect the right of the cabinet to assess civil penalties
for those violations pursuant to 405 KAR 7:092 or to impose other applicable
sanctions as authorized by law.
(7)
Vacation. Based upon the written recommendation of the regional administrator
and the authorized representative of the cabinet who issued the notice of
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 have been issued in error.
Section
3. 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 Chapters 7 through 24; or a violation of a term or condition of the
applicable permit or exploration approval 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 a cessation and immediate compliance if he finds, on the basis of an
inspection, that surface coal mining and reclamation operations are being
conducted by a person without a valid surface coal mining and reclamation operations
permit for the activities or that coal exploration and reclamation operations
are being conducted without proper notice of intention to explore or approval
for the operations, as applicable, in accordance with 405 KAR 8:020.
(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 set forth with reasonable specificity:
1.
The nature of the violation;
2.
A reasonable description of the portions of the operations in 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 interim steps.
(b)
At the same time that the authorized representative of the cabinet issues an
order for cessation and immediate compliance pursuant to subsection (1)(b) or
(c) of this section, he shall also issue a notice of noncompliance and order
for remedial measures.
(3)
Service. Service of an order for cessation and immediate compliance shall be in
the manner established in Section 5 of this administrative regulation.
(4)
Effect.
(a)
The order for cessation and immediate compliance shall require the cessation of:
1.
All surface coal mining and reclamation operations;
2.
All coal exploration and reclamation operations; or
3.
The portions or operations relevant to the condition, practice, or violation
covered by the order.
(b)
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.
(c)
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 (5) of this section; until it is vacated, modified, or
terminated by a hearing officer pursuant to 405 KAR 7:092; or until the order
expires pursuant to Section 6 of this administrative regulation.
(d)
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.
(5)
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 set 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, when he determines 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 under 405 KAR 7:092
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 Mine Reclamation and
Enforcement may vacate an order for cessation and immediate compliance
determined to have been issued in error.
(6)
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 under 405 KAR 8:010, Section 18(5) and either 405 KAR 8:030, Section
2(3) and (4) or 8:040, Section 2(3) and (4) as owning or controlling the
permittee, that the cessation order was issued and that the person has been
identified as an owner or controller.
Section
4. Notice of Inspection and 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, he shall
reinspect the areas affected by the surface coal mining and reclamation operations
or the coal exploration and reclamation operations on or soon after the date
given in the notice or order for completion of remedial measures. When
reinspection occurs, the authorized representative of the cabinet shall issue a
notice of inspection of noncompliance.
(2)
Form and content. The notice of inspection of noncompliance shall establish if:
(a)
The remedial measures have been completed and the notice or order is therefore
terminated;
(b)
The remedial measures have not been completed, but the notice or order is
modified or extended for good cause, pursuant to Sections 2(4) and 2(5) of this
administrative regulation; or
(c)
The remedial measures have not been completed. Following this determination,
the cabinet shall:
1.
For the 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 an administrative hearing for
suspension or revocation of the permit or approval, initiate an administrative
hearing for bond forfeiture, or initiate administrative hearings for other
appropriate relief.
(3)
Service. Service of a notice of inspection for noncompliance shall be in the
manner established in Section 5 of this administrative regulation.
Section
5. Service of Notices and Orders. (1) A notice of noncompliance and order for
remedial measures, order for cessation and immediate compliance, or notice of
inspection of noncompliance shall be promptly served on the person to whom it
is issued or the person's designated agent.
(2)(a)
Each notice of noncompliance and order for remedial measures, order for
cessation and immediate compliance, and notice of inspection of noncompliance
shall be served by:
1.
Hand;
2.
Certified mail (return receipt requested);
3.
Registered mail; or
4.
Electronic mail.
(b) The
notice or order shall also be served by hand to the individual who, based upon
reasonable inquiry by the authorized representative, appears to be in charge at
the site of the surface coal mining and reclamation operations or coal
exploration and reclamation operations referred to in the notice or order.
(c)
If this 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.
(3)
Service, whether by hand, electronic mail or by mail, shall be complete upon
tender of the notice or order and shall not be incomplete because of refusal to
accept.
(a)
For surface coal mining and reclamation operations, service by electronic mail
or mail shall be addressed to the designated agent for service; to the
permanent or electronic address of the permittee as identified on the permit or
in the application; or, if no address is identified for the permittee in the
application, to an other address as is known to the cabinet.
(b)
For coal exploration and reclamation operations, service by electronic mail or
mail shall be addressed to the designated agent for service; to the permanent
or electronic address of the person conducting the coal exploration and
reclamation operations as 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; or, if no address is identified for the person
conducting the coal exploration and reclamation operations in the notice or the
application submitted pursuant to 405 KAR 8:020, to an other address as is
known to the cabinet.
(c)
If no person is present at the site of the surface coal mining and reclamation
operations or the coal exploration and reclamation operations, service by
electronic mail or mail shall by itself be sufficient notice.
(4)
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 405 KAR 7:092 shall be made a part of the applicable permit
application, notice of intention to explore, or application for coal
exploration and reclamation approval. The person shall continue as agent for
service of process until written revision of the permit, a notice of intention
to explore, or coal exploration and reclamation approval is made that designates
another person as agent.
(5)
The cabinet may furnish copies of notices and orders to a person having an
interest that is or may be adversely affected by the coal exploration and
reclamation operations or by the surface coal mining and reclamation operations
and a person having an interest in the permit or exploration area.
Section
6. Expiration. (1)(a) Except as provided in subsection (2) of this section, if
a notice of noncompliance and order for remedial measures or an order for
cessation and immediate compliance requires cessation of coal removal expressly
or by implication:
1.
The notice or order shall expire thirty (30) days after it is served unless an
informal hearing is held at or near the mine site or the exploration site
within that time.
2.
Notices or orders shall not expire if:
a.
The condition, practice, or violation in question has been abated; or
b.
The person to whom the notice or order has been issued has waived the informal
hearing or has agreed to its postponement.
(b)
Expiration of the notice or order shall not affect the rights of the cabinet to
assess penalties and to impose sanctions, in accordance with KRS 350.028,
350.050, 350.053, 350.085, 350.130, 350.465, and 350.990, with respect to the
time period during which the notice or order was in effect for the violations
for which the notice or order was issued. The granting or waiver of an informal
public hearing shall not affect the right of a person to an administrative
hearing.
(2)(a)
The informal public hearing shall be waived if the person to whom the notice or
order was issued is informed by written notice served in the manner provided in
paragraph (b) of this subsection that he shall be deemed to have waived an
informal public hearing unless the hearing is requested within thirty (30) days
after service of the notice, and an informal public hearing is not requested
within that time.
(b)
The written notice referred to in paragraph (a) of this subsection shall be
delivered by an authorized representative or sent by certified mail, return
receipt requested, no later than five (5) days after the notice or order is
served.
(c)
The person to whom the notice or order is issued shall be deemed to have
consented to an extension of the time for holding the informal public hearing
if the request is received on or after the 21st day after service of the notice
or order. The extension of time shall be equal to the number of days elapsed
after the 21st day.
(3)(a)
The cabinet shall give as much advance notice as is practicable of the time,
place, and subject matter of the informal public hearing to the person to whom
the notice or order was issued, and the person who filed a report that led to
the issuance of the notice or order.
(b)
The cabinet shall also post notice of the informal public hearing at the
department's regional office for the mine site and, if practicable, publish it
in a newspaper of general circulation in the area of the mine.
(4)
Requirements for administrative hearings shall not govern informal public
hearings. An informal public hearing shall be conducted by a representative of
the cabinet who shall accept oral or written arguments and other relevant
information from a person attending.
(5)
Within five (5) days after the close of the informal public hearing, the
cabinet shall affirm, modify, or vacate in writing the notice or order. The
decision shall be sent to the person to whom the notice or order was issued,
and a person who filed a report that led to the issuance of the notice or order.
(6)
The person conducting the informal public hearing for the cabinet shall
determine if the mine site shall be viewed during the informal public hearing.
In making this determination the only consideration shall be if viewing the
mine site will assist the person conducting the informal public hearing in
reviewing the appropriateness of the enforcement action or of the required
remedial action.
Section
7. Suspension and Revocation of Permits and Exploration Approvals. (1) The
cabinet may initiate:
(a)
Administrative hearings for suspension or revocation of permits, coal
exploration, and reclamation approvals;
(b)
Administrative hearings for bond forfeitures; and
(c)
Administrative hearings or judicial proceedings for other appropriate relief.
(2)
If the cabinet revokes or suspends the permit or exploration approval, surface
coal mining operations on the permit area or disturbances on the exploration
area shall immediately cease, and the permittee or person conducting coal
exploration operations shall:
(a)
Complete reclamation within the time specified in the order, if the permit or
exploration approval is revoked; or
(b)
Complete all affirmative obligations to abate all conditions, practices, and
violations as specified in the order, if the permit or exploration approval is
suspended.
Section
8. Pattern of Violations. (1) If the cabinet determines that a pattern of
violations of the requirements of KRS Chapter 350, the administrative
regulations, or a permit condition imposed under KRS Chapter 350 or
administrative regulations exists or has existed and that the violations are
caused by the unwarranted failure of the permittee or were willful violations,
the cabinet shall issue an order to the permittee to show cause why the permit
should not be suspended or revoked.
(2)
The cabinet may determine that a pattern of violations exists or has existed,
based on two (2) or more inspections of the permit area within any twelve (12)
month period, after considering the circumstances, including:
(a)
The number of violations, cited on more than one (1) occasion, of the same or
related requirements of KRS Chapter 350; 405 KAR Chapters 7 through 24; or
permit conditions;
(b)
The number of violations, cited on more than one (1) occasion, of different
requirements of KRS Chapter 350; 405 KAR Chapters 7 through 24; or permit
conditions; and
(c)
The extent to which the violations were isolated departures from lawful
conduct.
(3)
The cabinet shall promptly review the history of violations of a permittee who
has been cited for violations of the same or related requirements of KRS
Chapter 350; 405 KAR Chapters 7 through 24 or permit conditions during three
(3) or more inspections of the permit area within any twelve (12) month period.
If after the review the cabinet determines that a pattern of violations exists
or has existed, the cabinet shall issue a show cause order pursuant to this
section and 405 KAR 7:092, Section 10.
(4)
In determining the number of violations within any twelve (12) month period,
the cabinet shall only consider violations cited as a result of inspections
carried out on or after May 3, 1978.
(5)
If a permittee fails to abate a violation cited in a notice of noncompliance or
cessation order within the abatement period established in the notice of order
or as subsequently extended, then the cabinet shall review the permittee's
history of violations to determine if a pattern of violations exists or has
existed pursuant to this section and shall initiate a show cause order as provided
in this section and 405 KAR 7:092, Section 10.
Section
9. Inability to Comply. (1) A notice or order issued pursuant to Title 405 of
the Kentucky administrative regulations shall not be vacated because of
inability to comply.
(2)
Inability to comply shall not be considered in determining if a pattern of
violations exists.
(3) Rapid compliance,
good faith, diligence, and inability to comply may be considered in mitigation
of proposed penalty assessments in accordance with 405 KAR 7:092. (8 Ky.R. 1523; eff. 1-6-83; Am. 11 Ky.R. 1833; 12 Ky.R.
184; eff. 8-13-85; 17 Ky.R. 2826; eff. 5-22-9119 Ky.R. 477; 939; eff. 11-23-92;
38 Ky.R. 674; 1003; 1311; eff. 2-3-12.)