KENTUCKY REGULATORY PROGRAM KENTUCKY ADMINISTRATIVE REGULATIONS (KAR) TITLE 405 NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION CABINET DEPARTMENT FOR SURFACE MINING RECLAMATION AND ENFORCEMENT [Current as of 7/22/03] 405 KAR CHAPTER 12 INSPECTION AND ENFORCEMENT 405 KAR 12:001 Definitions for 405 KAR Chapter 12 405 KAR 12:010 General provisions for inspection and enforcement 405 KAR 12:020 Enforcement 405 KAR 12:030 Public participation in inspection and enforcement NOTE: Cross references to OSM's federal regulations, the U.S. Code ("USC") and Kentucky Revised Statutes ("KRS") are part of the Kentucky Regulatory Program's regulations. These references appear at the beginning of each subchapter under "RELATES TO" and " STATUTORY AUTHORITY". The SMCRA section number equivalents to the USC section numbers have been added to the end of these notations. In addition, specific cross references to federal regulation and statute sections were added to Kentucky regulation sections; they appear in double braces to the right of the section name and number, e.g., "SECTION 1. NOTICE OF CITIZEN SUITS. {{ 30 CFR 700.13 }}". These annotations were compiled using the preambles to OSM's approval of amendments to the Kentucky Regulatory Program published in the Federal Register and from the file of Kentucky regulatory material in the COALEX Library in LexisNexis. 405 KAR 12:001. DEFINITIONS FOR 405 KAR CHAPTER 12. RELATES TO: KRS Chapter 350, 30 CFR Parts 700.5, 701.5, 707.5, 730-733, 735, 761.5, 762.5, 773.5, 800.5, 843.5, 917, 30 USC 1253, 1255, 1291 {SMCRA Secs. 503, 505, 701} STATUTORY AUTHORITY: KRS Chapter 13A, 350.028, 350.465, 30 CFR Parts 700.5, 701.5, 707.5, 730-733, 735, 761.5, 762.5, 773.5, 800.5, 843.5, 917, 30 USC 1253, 1255, 1291 {SMCRA Secs. 503, 505, 701} NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations pertaining to surface coal mining and reclamation operations under the permanent regulatory program. This administrative regulation provides for the defining of certain essential terms used in 405 KAR Chapter 12. SECTION 1. DEFINITIONS. (1) "ADJACENT AREA" means land located outside the affected area or permit area, depending on the context in which "adjacent area" is used, where air, surface or groundwater, fish, wildlife, vegetation or other resources protected by KRS Chapter 350 may be adversely impacted by surface coal mining and reclamation operations. (2) "AFFECTED AREA" means any land or water area which is used to facilitate, or is physically altered by, surface coal mining and reclamation operations. The affected area includes the disturbed area; any area upon which surface coal mining and reclamation operations are conducted; any adjacent lands the use of which is incidental to surface coal mining and reclamation operations; all areas covered by new or existing roads used to gain access to, or for hauling coal to or from, surface coal mining and reclamation operations, except as provided in this definition; any area covered by surface excavations, workings, impoundments, dams, ventilation shafts, entryways, refuse banks, dumps, stockpiles, overburden piles, spoil banks, culm banks, tailings, holes or depressions, repair areas, storage areas, shipping areas; any areas upon which are sited structures, facilities, or other property or material on the surface resulting from, or incident to, surface coal mining and reclamation operations; and the area located above underground workings associated with underground mining activities, auger mining, or in situ mining. The affected area shall include every road used for the purposes of access to, or for hauling coal to or from, surface coal mining and reclamation operations, unless the road: (a) Was designated as a public road pursuant to the laws of the jurisdiction in which it is located; (b) Is maintained with public funds, and constructed in a manner similar to other public roads of the same classification within the jurisdiction; and (c) There is substantial (more than incidental) public use. (3) "APPLICATION" means the documents and other information filed with the cabinet seeking issuance of permits; revisions; amendments; renewals; and transfer, assignment or sale of permit rights for surface coal mining and reclamation operations or, if required, seeking approval for coal exploration. (4) "CABINET" is defined in KRS 350.010. (5) "CFR" means Code of Federal Regulations. (6) "COAL" means combustible carbonaceous rock, classified as anthracite, bituminous, subbituminous, or lignite by ASTM Standard D 388-77. (7) "COAL EXPLORATION" means the field gathering of: (a) Surface or subsurface geologic, physical, or chemical data by mapping, trenching, drilling, geophysical, or other techniques necessary to determine the quality and quantity of overburden and coal of an area; or (b) Environmental data to establish the conditions of an area before beginning surface coal mining and reclamation operations under the requirements of 405 KAR Chapters 7 through 24 if the activity may cause any disturbance of the land surface or may cause any appreciable effect upon land, air, water, or other environmental resources. (8) "DAY" means calendar day unless otherwise specified to be a working day. (9) "DEPARTMENT" means the Department for Surface Mining Reclamation and Enforcement. (10) "DISTURBED AREA" means an area where vegetation, topsoil, or overburden is removed or upon which topsoil, spoil, coal processing waste, underground development waste, or noncoal waste is placed by surface coal mining operations. Those areas are classified as "disturbed" until reclamation is complete and the performance bond or other assurance of performance required by 405 KAR Chapter 10 is released. (11) "IMMINENT DANGER TO THE HEALTH AND SAFETY OF THE PUBLIC" means the existence of any condition or practice, or any violation of a permit or other requirements of KRS Chapter 350 in a surface coal mining and reclamation operation, which could reasonably be expected to cause substantial physical harm to persons outside the permit area before the condition, practice, or violation can be abated. A reasonable expectation of death or serious injury before abatement exists if a rational person, subjected to the same condition or practice giving rise to the peril, would avoid exposure to the danger during the time necessary for abatement. (12) "KAR" means Kentucky administrative regulations. (13) "MONITORING" means the collection of environmental data by either continuous or periodic sampling methods. (14) "NOTICE OF NONCOMPLIANCE AND ORDER FOR REMEDIAL MEASURES" means a written document and order prepared by an authorized representative of the cabinet which sets forth with specificity the violations of KRS Chapter 350, 405 KAR Chapters 7 through 24, or permit conditions which the authorized representative of the cabinet determines to have occurred based upon his inspection, and the necessary remedial actions, if any, and the time schedule for completion thereof, which the authorized representative deems necessary and appropriate to correct the violations. (15) "OPERATIONS" is defined in KRS 350.010. (16) "OPERATOR" is defined in KRS 350.010. (17) "ORDER FOR CESSATION AND IMMEDIATE COMPLIANCE" means a written document and order issued by an authorized representative of the cabinet when: (a) A person to whom a notice of noncompliance and order for remedial measures was issued has failed, as determined by a cabinet inspection, to comply with the terms of the notice of noncompliance and order for remedial measures within the time limits set therein, or as subsequently extended; or (b) The authorized representative finds, on the basis of a cabinet inspection, any condition or practice or any violation of KRS Chapter 350, 405 KAR Chapters 7 through 24, or any condition of a permit or exploration approval which: 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. (18) "PERFORMANCE BOND" means a surety bond, a collateral bond, or a combination thereof, or bonds filed pursuant to the provisions of the Kentucky Bond Pool Program (405 KAR 10:200, KRS 350.595, and KRS 350.700 through 350.755), by which a permittee assures faithful performance of all the requirements of KRS Chapter 350, 405 KAR Chapters 7 through 24, and the requirements of the permit and reclamation plan. (19) "PERMIT" means written approval issued by the cabinet to conduct surface coal mining and reclamation operations. (20) "PERMIT AREA" means the area of land and water within boundaries designated in the approved permit application, which shall include, at a minimum, all areas which are or will be affected by surface coal mining and reclamation operations under that permit. (21) "PERMITTEE" means an operator or a person holding or required by KRS Chapter 350 or 405 KAR Chapters 7 through 24 to hold a permit to conduct surface coal mining and reclamation operations during the permit term and until all reclamation obligations imposed by KRS Chapter 350 and 405 KAR Chapters 7 through 24 are satisfied. (22) "PERSON" is defined in KRS 350.010. (23) "PERSON HAVING AN INTEREST WHICH IS OR MAY BE ADVERSELY AFFECTED" or "PERSON WITH A VALID LEGAL INTEREST" shall include any person: (a) Who uses any resource of economic, recreational, aesthetic, or environmental value that may be adversely affected by coal exploration or surface coal mining and reclamation operations, or by any related action of the cabinet; or (b) Whose property is or may be adversely affected by coal exploration or surface coal mining and reclamation operations, or by any related action of the cabinet. (24) "RECLAMATION" is defined in KRS 350.010. (25) "SECRETARY" is defined in KRS 350.010. (26) "SIGNIFICANT, IMMINENT ENVIRONMENTAL HARM" means an adverse impact on land, air, or water resources which resources include, but are not limited to, plant and animal life as further defined in this subsection. (a) An environmental harm is imminent, if a condition, practice, or violation exists which: 1. Is causing environmental harm; or 2. May reasonably be expected to cause environmental harm at any time before the end of the reasonable abatement time that would be set by the cabinet's authorized agents pursuant to the provisions of KRS Chapter 350. (b) An environmental harm is significant if that harm is appreciable and not immediately reparable. (27) "SURFACE COAL MINING AND RECLAMATION OPERATIONS" is defined in KRS 350.010. (28) "SURFACE COAL MINING OPERATIONS" is defined in KRS 350.010. (29) "UNWARRANTED FAILURE TO COMPLY" means the failure of the permittee due to indifference, lack of diligence, or lack of reasonable care: (a) To prevent the occurrence of any violation of any applicable requirement of KRS Chapter 350, 405 KAR Chapters 7 through 24, or permit conditions; or (b) To abate any violation of any applicable requirement of KRS Chapter 350, 405 KAR Chapters 7 through 24, or permit conditions. (30) "WILFULLY" and "WILLFUL VIOLATION" mean that a person acted either intentionally, voluntarily, or consciously, and with intentional disregard or plain indifference to legal requirements, in authorizing, ordering, or carrying out an act or omission that constituted a violation of SMCRA, KRS Chapter 350, 405 KAR Chapters 7 through 24, or a permit condition, or that constituted a failure or refusal to comply with an order issued pursuant to SMCRA, KRS Chapter 350, or 405 KAR Chapters 7 through 24. (18 Ky.R. 2472; eff. 4-3-92; Am. 20 Ky.R. 134; eff. 9-22-93.) 405 KAR 12:010. GENERAL PROVISIONS FOR INSPECTION AND ENFORCEMENT. RELATES TO: KRS 350.020, 350.028, 350.050, 350.085, 350.113, 350.130, 350.151, 350.465, 350.990, 30 CFR Parts 730-733, 735, 840.11-.16, 917, 30 USC 1253, 1255, 1267 {SMCRA Secs. 503, 505, 517} STATUTORY AUTHORITY: KRS Chapter 13A, 350.020, 350.028, 350.050, 350.130, 350.465, 30 CFR Parts 730-733, 735, 840.11-.16, 917, 30 USC 1253, 1255, 1267 {SMCRA Secs. 503, 505, 517} NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to rigidly enforce administrative regulations promulgated to control the injurious effects of surface coal mining and reclamation operations. This administrative regulation generally sets forth a rigid enforcement and inspection policy for the cabinet. This administrative regulation directs that inspections be made at irregular intervals and without need of a warrant or prior notice to the permittee, operator, or person. This administrative regulation requires certain frequencies for inspections and complete preservation of the evidence, records and observations made during inspections. This administrative regulation also sets forth the general policy of public participation in the enforcement process and references the civil and criminal penalties of KRS Chapter 350. SECTION 1. APPLICABILITY. The provisions of this chapter shall apply to all surface coal mining and reclamation operations and coal exploration and reclamation operations. SECTION 2. INSPECTION AND ENFORCEMENT. In accordance with the provisions of this chapter, the cabinet shall conduct or cause to be conducted inspections, studies, investigations, or other determinations as it deems reasonable and necessary to obtain information and evidence with which to ensure that surface coal mining and reclamation operations and coal exploration and reclamation operations are conducted in accordance with the provisions of KRS Chapter 350; 405 KAR Chapters 7 through 24; and all terms and conditions of the applicable permit or approval. SECTION 3. TIMING AND CONDUCT OF INSPECTIONS. {{ 30 CFR 840.11, 840.12 }} (1) Right of entry and access. Authorized representatives of the cabinet shall: (a) Have unrestricted right of entry and access to areas affected by coal exploration and reclamation operations and areas affected by surface coal mining and reclamation operations for any purpose associated with their proper duties pursuant to KRS Chapter 350 or 405 KAR including but not limited to activities associated with the conducting of inspections; and (b) At reasonable times and without delay, have unrestricted access to and authority to copy any records required to be kept under KRS Chapter 350 and 405 KAR and have unrestricted access to, for the purpose of inspecting, any monitoring equipment required under or pursuant to KRS Chapter 350 or 405 KAR. (2) Presentation of credentials. Authorized representatives of the cabinet shall present credentials for identification purposes upon request by a representative of the permittee, operator or person conducting the coal exploration and reclamation operations on the affected area. (3) Prior notice. The cabinet shall have no obligation to give prior notice that an inspection will be conducted. (4) Timing. 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 the cabinet deems the inspections necessary to properly monitor compliance with KRS Chapter 350; 405 KAR Chapters 7 through 24; and terms and conditions of the applicable permit or approval. (5) Frequency of inspections. (a) Partial inspections of surface coal mining and reclamation operations. A partial inspection of surface coal mining and reclamation operations is an on-site or aerial review of a permittee, operator, or person's compliance with some of the permit terms and conditions and some of the requirements of KRS Chapter 350 and 405 KAR Chapters 7 through 24. Unless the cabinet has received notice of temporary cessation under 405 KAR 16:010, Section 7, or 405 KAR 18:010, Section 5, the cabinet shall conduct an average of at least one (1) partial inspection per month of each area affected by surface coal mining and reclamation operations permitted under 405 KAR Chapter 8 at least until phase I reclamation, as determined under 405 KAR 10:040, has been completed on the entire permit area. After phase I reclamation, or if the cabinet has received notice of temporary cessation, the cabinet shall conduct partial inspections until the cabinet determines that the permit area is sufficiently stable with respect to mass stability, erosion, revegetation, water quality and other reclamation requirements so that the quarterly complete inspections required under paragraph (b) of this subsection will provide adequate inspection of the permit area. (b) Complete inspections of surface coal mining and reclamation operations. A complete inspection of surface coal mining and reclamation operations is an on-site review of a permittee, operator, or person's compliance with all of the permit terms and conditions and all of the requirements of KRS Chapter 350 and 405 KAR Chapters 7 through 24 within the entire area disturbed or affected by surface coal mining and reclamation operations. The cabinet shall conduct an average of at least one (1) complete inspection per calendar quarter of each area affected by surface coal mining and reclamation operations permitted under 405 KAR Chapter 8. (c) The cabinet shall conduct inspections of coal exploration and reclamation operations as necessary to ensure compliance with KRS Chapter 350 and 405 KAR Chapters 7 through 24. (6) Aerial inspections. (a) Aerial inspections shall be conducted in a manner that reasonably insures the identification and documentation of conditions at each surface coal mining and reclamation site and each coal exploration and reclamation site inspected. (b) Any potential violation observed during an aerial inspection shall be investigated on site within three (3) days provided that any indication of a condition, practice, or violation constituting cause for the issuance of a cessation order under 405 KAR 12:020, Section 3(1)(b) and (c) shall be investigated on site immediately and provided further that an aerial inspection which necessitates an on-site inspection of a potential violation shall not be considered to be an additional partial inspection for the purposes of subsection (5) of the section. SECTION 4. RECORDS OF INSPECTIONS. {{ 30 CFR 840.11, 840.14 }} (1) Authorized representatives of the cabinet shall make and maintain written records of inspections and other activities including observations made and factual matters discovered. A copy of the records shall be made available to the permittee, operator, or person conducting the coal exploration and reclamation operations and shall be available for public inspection at the appropriate regional office of the department in accordance with the Kentucky Open Record Laws, KRS 61.870 through KRS 61.884, until at least five (5) years after final bond release on the entire permit area or until at least five (5) years after bond forfeiture. For unpermitted areas, the cabinet shall maintain the records until at least five (5) years after the final action of the cabinet regarding the operations. (2)(a) For permitted areas for which final bond release has been granted pursuant to 405 KAR Chapter 10; for areas for which bond has been forfeited pursuant to 405 KAR Chapter 10; and for unpermitted areas for which the cabinet has taken final action, the cabinet may, at its own option and expense and as an alternative to maintaining the information for public inspection at the location identified in accordance with subsection (1) of this section, retain information at a location other than the department's appropriate regional office and, at the request of any person: 1. Provide copies of the information promptly by mail to the person; or 2. Transfer the information to the department's appropriate regional office for public inspection. (b) For situations in which the cabinet provides information in accordance with this subsection, the cabinet shall maintain, for public inspection at the department's appropriate regional office, a description of the information available for mailing or submission to the appropriate regional office and the procedures to be used for obtaining the information. (3) Upon inspection of coal exploration and reclamation operations and surface coal mining and reclamation operations, authorized representatives of the cabinet shall collect evidence of every observed violation of a permit term or condition, every observed violation of a term or condition of approval (for coal exploration and reclamation operations requiring cabinet approval), and every observed violation of a requirement of KRS Chapter 350 or an administrative regulation promulgated pursuant thereto. (4) The cabinet shall preserve evidence collected pursuant to subsection (3) of this section where appropriate in order that the evidence may be presented at hearings held pursuant to 405 KAR 7:092. SECTION 5. PENALTIES AND SANCTIONS. {{ 30 CFR 840.13 }} Any person who violates any provision of KRS Chapter 350; any provision of 405 KAR Chapters 7 through 24; any permit term or condition; or any term or condition of approval (for coal exploration and reclamation operations requiring cabinet approval) and any person who fails to perform the duties imposed by these provisions or who fails to comply with a determination or order of the cabinet pursuant to these provisions shall be subject to civil and criminal penalties as set forth in KRS 350.465(3)(h), KRS 350.990, 405 KAR 7:092, and any other applicable provision of law and shall be subject to applicable sanctions as set forth in KRS 350.130 or any other applicable provision of law. Violations by any person conducting surface coal mining and reclamation operations on behalf of a permittee shall be attributed to the permittee, unless the permittee establishes that they were acts of deliberate sabotage. Violations by any person conducting coal exploration and reclamation operations shall be attributed to the person conducting the coal exploration and reclamation operations or the person 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, unless the person establishes that they were acts of deliberate sabotage. SECTION 6. PUBLIC PARTICIPATION. {{ 30 CFR 800.15 }} Any person shall have the opportunity to request an inspection and to participate in enforcement actions of the cabinet as provided in 405 KAR 12:030. SECTION 7. FORMAL REVIEW. {{ 30 CFR 843.16 }} Any person having an interest which is or may be adversely affected by the issuance, modification, vacation, or termination of a notice or order may request review of that action pursuant to 405 KAR 7:092. The filing of a request for a hearing shall not operate as a stay of any notice or order or any modification, termination, or vacation thereof. (8 Ky.R. 1522; Am. 9 Ky.R. 697; eff. 1-6-83; 11 Ky.R. 1831; eff. 8-13-85; 20 Ky.R. 137; eff. 9-22-93.) 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 CFR Parts 730-733, 735, 840.13-.14, 840.16, 843, 30 USC 1253, 1255, 1271 {SMCRA Secs. 503, 505, 521} STATUTORY AUTHORITY: KRS Chapter 13A, 350.020, 350.028, 350.050, 350.130, 350.465, 30 CFR Parts 730-733, 735, 840.13-.14, 840.16, 843, 30 USC 1253, 1255, 1271 {SMCRA Secs. 503, 505, 521} NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part directs the cabinet to rigidly enforce administrative regulations promulgated to control the injurious effects of surface coal mining and reclamation operations. This administrative regulation sets forth various kinds of notices and orders to be issued by authorized representatives of the cabinet. The administrative regulation directs that there be issued a notice of noncompliance and order for remedial measures. The administrative regulation requires that an order for cessation and immediate compliance be issued for failure to abate a violation during a specified abatement period or for situations of imminent harm. The administrative regulation sets forth the general form of the notices and orders and authority to vacate, modify, or terminate the orders or notices. This administrative regulation sets forth procedures for an informal hearing. The administrative regulation sets forth requirements if a permit is suspended or revoked and procedures for a determination of a pattern of violations. This administrative regulation contains a portion of 405 KAR 7:090 which has been repealed. SECTION 1. GENERAL. (1) The secretary of the cabinet may from time to time or for a definite period designate, by written order or by other means appropriate under the circumstances, 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 are deemed the 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. {{ 30 CFR 843.12 }} (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 KRS Chapter 350; 405 KAR Chapters 7 through 24; any term or condition of a permit; any term or condition of approval (for coal exploration and reclamation operations requiring cabinet approval); or 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 set forth 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 set forth 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) 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 set forth in paragraph (b) of this subsection. 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. Weather conditions preclude abatement within ninety (90) days; due to weather conditions abatement within ninety (90) days would clearly cause more environmental harm than it would prevent; or abatement within ninety (90) days requires action that would violate safety standards established by statute or regulation under the Mine Safety and Health Act. (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) 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. The authorized representative of the cabinet shall not grant such an abatement period without the approval of the Director of the Division of Field Services or his designee, and the abatement period granted shall not exceed the shortest possible time necessary to abate the violation. 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 for granting or denying the request and the reasons therefor. 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 under 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) No extension granted under this subsection may 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. (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 Field Services 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. {{ 30 CFR 843.11 }} (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, any condition or practice; any violation of KRS Chapter 350; any violation of 405 KAR Chapters 7 through 24; or any violation of a term or condition of the applicable permit or exploration approval which: 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 any 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 set forth in Section 5 of this administrative regulation. (4) Effect. (a) The order for cessation and immediate compliance shall require the cessation of all surface coal mining and reclamation operations, all coal exploration and reclamation operations, or the portions or operations thereof relevant to the condition, practice, or violation covered by the order. The order shall require the person to whom it is issued to take any affirmative steps which the authorized representative of the cabinet deems 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 (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. (c) Reclamation operations and other activities intended to protect public health and safety and the environment shall continue during the period of any 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 any 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 Field Services 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 405 KAR 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. {{ 30 CFR Parts 842, 843 }} (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. At the time of reinspection, 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 set forth whether: (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; or (c) The remedial measures have not been completed. Following such a 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 set forth in Section 5 of this administrative regulation. SECTION 5. SERVICE OF NOTICES AND ORDERS. {{ 30 CFR 843.14 }} (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) 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 hand, by certified mail (return receipt requested), or by registered mail to the person to whom the notice or order has been issued or to his designated agent for service. 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. If no such individual can 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. Service, whether by hand or by mail, shall be complete upon tender of the notice or order and shall not be deemed incomplete because of refusal to accept. For surface coal mining and reclamation operations, service by mail shall be addressed to the designated agent for service; to the permanent 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 any other address as is known to the cabinet. For coal exploration and reclamation operations, service by mail shall be addressed to the designated agent for service; to the permanent 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 any other address as is known to the cabinet. 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 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 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 which designates another person as agent. (4) The cabinet may furnish copies of notices and orders to a person having an interest which 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. {{ 30 CFR 840.13, 840.15, 843.11 }} (1) 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, 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 except that notices or orders shall not expire if the condition, practice, or violation in question has been abated or if the person to whom the notice or order has been issued has waived the informal hearing or has agreed to its postponement. Expiration of the notice or order shall not affect the rights of the cabinet to assess appropriate penalties and to impose applicable sanctions 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 will be deemed 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 will 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 a person who filed a report which 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 may accept oral or written arguments and other relevant information from any 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 any person who filed a report which 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 whether 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. {{ 30 CFR 843.13 }} (1) The cabinet may initiate administrative hearings for suspension or revocation of permits and coal exploration and reclamation approvals, may initiate administrative hearings for bond forfeitures, and may initiate 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) If the permit or exploration approval is revoked, complete reclamation within the time specified in the order; or (b) If the permit or exploration approval is suspended, complete all affirmative obligations to abate all conditions, practices, and violations as specified in the order. 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 set in the notice of order or as subsequently extended, the cabinet shall review the permittee's history of violations to determine whether 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) No notice or order issued pursuant to the administrative regulations of 405 KAR may be vacated because of inability to comply. (2) Inability to comply may not be considered in determining whether a pattern of violations exists. (3) Rapid compliance, good faith, diligence, and inability to comply may be considered in mitigation of proposed penalty assessments under 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.) 405 KAR 12:030. PUBLIC PARTICIPATION IN INSPECTION AND ENFORCEMENT. RELATES TO: KRS 350.020, 350.028, 350.050, 350.465 {{ 30 CFR Part 842 }} STATUTORY AUTHORITY: 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. {{ 30 CFR 842.12 }} (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. {{ 30 CFR 842.15 }} (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 405 KAR 7:092, Section 9 or other relief authorized by law. SECTION 3. CITIZEN REQUESTS FOR REVIEW OF ADEQUACY AND COMPLETENESS OF INSPECTIONS. {{ 30 CFR 842.14 }} (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 of Surface Mining Reclamation and Enforcement 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. (8 Ky.R. 1526; eff. 1-6-83.)