902 KAR 100:170.
Proceedings.
RELATES TO: KRS
211.842-211.852, 211.990(4)
STATUTORY
AUTHORITY: KRS Chapter 13B, 194.050, 211.090, 211.844, EO 96-862
NECESSITY,
FUNCTION, AND CONFORMITY: Executive Order 96-862, effective July 2, 1996,
reorganizes the Cabinet for Human Resources and places the Department for
Public Health and its programs under the Cabinet for Health Services. The
Cabinet for Health Services is authorized by KRS 211.844 to provide by
administrative regulation for the registration and licensing of the possession
or use of sources of ionizing or electronic product radiation and the handling
and disposal of radioactive waste. The purpose of this administrative regulation
is to provide for the conduct of proceedings before the cabinet involving the
possession, use, and transfer of radioactive materials and radiation producing
machines.
Section 1.
Applicability. The provisions of this administrative regulation shall apply to
administrative proceedings involving the use, possession or transfer of
radioactive materials or radiation producing machines within Kentucky.
Section 2.
Administrative Examination of License Applications. Applications for the
issuance of a license, amendment of a license at the request of the holder,
transfer of a license and renewal of a license shall be reviewed by the
cabinet. The applicant may be required to submit additional information and may
be requested to confer informally regarding the application. The cabinet shall
give to others notice of the filing of applications as is required under the
applicable provisions of these administrative regulations and additional
notices as it deems appropriate.
Section 3.
Action on License Applications, Hearings. (1) The cabinet shall, upon request
of the applicant or intervenor, and may upon its own initiative, direct the
holding of a formal hearing prior to taking action on the application. If no
prior formal hearing has been held and no notice of proposed action has been
served as provided in subsection (2) of this section, the cabinet shall direct
the holding of a formal hearing upon receipt of a request therefor from the
applicant or intervenor within thirty (30) days after the issuance of a license
or other approval or a notice of denial.
(2) In cases it
deems appropriate, the cabinet may cause to be served upon the applicant a
notice of proposed action upon his application and shall cause copies thereof
to be serviced upon intervenors or others entitled to or requesting
notification. The notice shall state the terms of the proposed action. If a
formal hearing has not been held prior to the issuance of the notice, the
cabinet shall direct the holding of a formal hearing upon the request of the
applicant or an intervenor received within fifteen (15) days following the service
of the notice.
Section 4.
Effect of Timely License Renewal Applications. If at least thirty (30) days
prior to the expiration of an existing license authorizing activity of a
continuing nature, a licensee files an application for a renewal or for a new
license for the activity so authorized, the existing license shall not be
deemed to have expired until the application has been finally determined.
Section 5.
Notice of Violation. (1) Prior to the institution of proceedings for alleged
violation of provisions of these administrative regulations, the Act, or the
conditions or terms of a license or registration, the licensee, registrant, or
other person as appropriate shall be served with a written notice of violation,
except as specified in subsection (2) of this section. The notice of violation
shall state the alleged violation and shall require that the licensee submit,
within fifteen (15) days of the date of the receipt of the notice or other time
as specified in the notice, a written explanation or statement in reply
including:
(a) Corrective
steps which have been taken by the licensee or registrant and the results
achieved;
(b) Corrective
steps to be taken;
(c) The date
when correction and compliance will be achieved; and
(d) An admission
or denial of the violation and the reason(s) for the violation(s) if admitted
and required in the notice.
(2) If in the
opinion of the cabinet the public health, interest, or safety so requires, or
the violation is willful, the notice provided in this section may be omitted.
Section 6.
Failure to Respond to Notice of Informal Hearing. (1) In the event the person
to whom the notice of violation has been issued fails to respond within the
prescribed time, the Secretary for Health Services, or his designee, may set
the matter down for an informal hearing as described in Section 15 of this
administrative regulation.
(2) Failure of
the person to whom the notice was sent to appear at the informal hearing may
result in:
(a) The
registration or license of the person being modified, suspended or revoked;
(b) The
recapture, quarantine or seizure of the radiation source;
(c) The
inactivation of radiation producing machines; or
(d) Other
appropriate action deemed necessary by the cabinet to protect public health and
safety.
(3) Any person
aggrieved by the action of the cabinet under this section may, within thirty
(30) days after receipt of notice of the action, request a formal hearing
before the secretary or his designee.
Section 7.
Notices and Orders. In a case described in Section 5 of this administrative
regulation, the cabinet may issue the licensee, registrant, or other person as
appropriate a notice to comply with the administrative rules and administrative
regulations of the cabinet or an order issued by the cabinet. The terms of the
notice or order may be effective immediately or at a time specified in the
notice or order. The notice or order shall apprise the licensee or registrant
that he has the right to request a hearing within thirty (30) days by making a
written request therefor to the cabinet. In the event a request for a hearing
is received by the cabinet within the time specified, a notice of hearing shall
be issued by the cabinet in accordance with Section 5 of this administrative
regulation.
Section 8.
Emergency Notices and Orders. If the cabinet finds that a condition exists
requiring immediate action to protect the public health or welfare, the cabinet
may issue a notice or an order reciting the existence of the condition and
requiring that action be taken as is deemed necessary by the cabinet to protect
the public health and welfare. The notice or order may be issued by the
Manager, Radiation Control, on behalf of the cabinet. The notice or order shall
be effective immediately. Persons to whom a notice or an order is directed
shall comply therewith immediately, but applicants for hearings to the cabinet
shall be afforded a hearing in accordance with 902 KAR 1:400. On the basis of a
hearing, the cabinet shall continue, revoke, or modify a notice or order.
Section 9.
Enforcement of Obedience to Orders. If the failure on the part of a person to
comply with a lawful order of the cabinet or with process or if the refusal of
a witness to testify concerning a matter on which he may be lawfully interrogated,
the circuit court or a judge thereof having jurisdiction may, on application of
the cabinet, compel obedience by proceedings as in contempt cases as provided
by KRS 211.230.
Section 10.
Recapture, Quarantine, or Seizure of Sources of Radiation. If a case of extreme
importance to the health and safety of the public, the cabinet may, without
prior notice of hearing, recapture, quarantine, or seize a source of radiation,
if as promptly as possible and not later than ten (10) days from the recapture,
quarantine, or seizure, the cabinet shall serve upon the person from whom the
sources were recaptured, quarantined, or seized an appropriate order depriving
that person of possession or use of the sources together with a notice which
shall give that person the right to request a hearing, concerning the order depriving
him of the use of the sources and the restoration of the sources to him
pursuant to 902 KAR 1:400.
Section 11.
Filing Papers. Unless otherwise specified, papers required to be filed with the
cabinet shall be filed with the Manager, Radiation Control, Cabinet for Health
Services, 275 East Main Street, Frankfort, Kentucky 40621. Papers required to
be filed with the cabinet shall be deemed filed upon actual receipt by the
cabinet at the place specified accompanied by proof of service upon the parties
required to be served as described in Section 14 of this administrative
regulation. Unless otherwise specified, the filing if by mail or telegram shall
upon actual receipt be deemed complete as of the date of deposit in the mail or
with the telegraph company. Papers may be filed in person at the cabinet's offices,
275 East Main Street, Frankfort, Kentucky 40621.
Section 12.
Computation of Time. In computing a period of time prescribed or allowed by an
applicable rule or administrative regulation, notice or order, the provisions
of KRS 446.030 shall apply.
Section 13.
Extension of Time. (1) Extensions of time for filing or performing an act
required or allowed to be done, and continuances of a proceeding or hearing,
may be granted in the discretion of the cabinet upon application and good cause
shown by a party, or upon the initiative of the cabinet or stipulation of the
parties.
(2) If a hearing
officer has been designated for hearing, the discretion in granting extensions
of time and continuances in matters relating to the hearing shall rest with the
hearing officer in accordance with KRS Chapter 13B.
Section 14.
Intervention. (1) A person whose interests may be affected by a proceeding may
file a petition to intervene pursuant to KRS 13B.060.
Section 15.
Informal Hearing Procedure. The procedure to be followed in informal hearings
shall be as best serve the purpose of the hearing. An informal hearing may
consist of the submission of written data, views, or arguments with or without
oral argument, or may partake of the nature of a conference or may assume some
of the aspects of a formal hearing in which the subpoena of witnesses and the
production of evidence may be permitted or directed.
Section 16.
Administrative Hearings. All administrative hearings shall be conducted in
accordance with 902 KAR 1:400.
Section 17.
Answer. (1) Within the time allowed by the notice of hearing for filing and
serving an answer, the answer of a licensee, applicant or registrant shall
fully advise the cabinet and other parties of the nature of the defense or
other position of the answering party, the issues he proposes to argue and
those he does not argue, and whether or not he proposes to appear and present
evidence. If facts are alleged, the answer shall admit or deny specifically
each allegation of fact; or if knowledge is lacking, the answer may so state
and the statement shall serve as a denial. Allegations of fact not denied shall
be deemed to be admitted. Matters alleged as affirmative defenses or positions
shall be separately stated and identified and, in the absence of a reply, shall
be deemed to be argued. The answer of an intervenor shall fully advise the
cabinet and other parties of his position and whether he proposes to appear and
present evidence.
(2) If a party
does not oppose an order or proposed action of the cabinet embodied in or
accompanying the notice of hearing or does not wish to appear and give evidence
at the hearing, the answer shall so state. In lieu of appearing, the party may,
if he chooses, submit a statement of reasons why the proposed order or sanction
shall not be issued or shall be different than proposed, and the cabinet shall
attribute weight as it deems deserving to the written reasons.
Section 18.
Reply. In appropriate cases the cabinet may file and serve a reply to the
answer or, if the answer affects other parties to the proceeding, the cabinet
or the hearing officer may permit these parties to file and serve a reply.
Section 19.
Admissions. After an answer has been filed, a party may file and serve upon the
opposing side a written request for the admission of the genuineness and
authenticity of relevant documents described in or attached to the request or
for the admission of the truth of relevant matters of fact stated in the
request. Each matter for which an admission is requested shall be deemed
admitted unless within the time designated in the request, but not less than
ten (10) days after service thereof or further time as the hearing officer may
allow upon motion and notice, the party to whom the request is directed serves
upon the requesting party a sworn statement either denying the matters upon
which the admission is requested or setting up the reasons why he cannot truthfully
admit or deny the matters.
Section 20.
Waiver of Procedures. The parties to a hearing may agree to waive one (1) or
more of the procedural steps which would otherwise precede the reaching of a
final decision by the cabinet.
Section 21.
Public Records: Exceptions. Except as specified in this section records shall
be deemed public records and shall be open to inspection by the public. The
following are not to be considered public records which are available for
public inspection:
(1) Documents
relating to personnel matters and medical and other personnel information,
which, under general governmental personnel practices, are not normally made
public.
(2) Intra-agency
and interagency communications including memoranda reports, correspondence, and
staff papers prepared cabinet personnel, or by other government agency for use
within the cabinet or within the executive branch of the government.
(3) Documents
classified as restricted data under the Atomic Energy Act of 1954 or classified
under Executive Order of the President of the United States as restricted data.
(4)
Correspondence received in confidence by the cabinet relating to an alleged or
possible violation of a statute, rule, administrative regulation, order,
license or permit.
(5) Other documents
involving matters of internal cabinet management.
(6) Other
matters required by law to be kept confidential or not available to public
inspection.
(7) Names of
individuals who have received exposures to radiation.
(8) The cabinet
may withhold documents or parts thereof from public inspection if disclosure of
its contents is not required in the public interest and would adversely affect
the interest of a person concerned. This withholding from public inspection
shall not, however, affect the right of persons properly and directly concerned
to inspect the document. Persons requesting that documents or information
therein be withheld from public disclosure shall make prompt application
identifying the material and giving the reasons. If the applicant is
responsible for the preparation of the document. he shall insofar as is
possible segregate in separate paper the information for which the special
treatment is requested. The cabinet may honor the request upon a finding that
public inspection is not required in the public interest and would adversely
affect the interest of the persons concerned. If the request is denied, the
applicant shall be notified thereof with a statement of the reasons.
Section 22.
Hearings: Formal and Informal. (1) Formal hearings shall be held adjudication
of rights.
(2) Informal
hearings shall normally be held for the purpose of obtaining necessary or
useful information, including but not limited to cases as described in Section
6 of this administrative regulation. (1 Ky.R. 421; eff. 2-5-75; Am. 2 Ky.R.
481; eff. 4-14-76; 12 Ky.R. 1419; eff. 3-4-86; 18 Ky.R. 1581; eff. 1-10-92; 23
Ky.R. 2490; eff. 8-1-96.)
