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350.0301 Petition challenging determination of cabinet -- Conduct of hearings
-- Administrative regulations -- Secretary may designate deputy to sign
final orders.
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Any person who considers himself aggrieved by any determination made by
the cabinet under this chapter may file, in accordance with administrative
regulations promulgated by the cabinet under the provisions of this chapter, a
petition alleging that the determination is contrary to law or fact and is injurious
to him, the grounds and reasons therefor, and demand a hearing. Unless the
cabinet considers that the petition is frivolous, it shall serve written notice of the
petition on each person named therein and shall schedule a hearing before the
cabinet not less than twenty-one (21) days after the date of the notice unless
the person complained against waives in writing the twenty-one (21) day
period. The right to demand a hearing pursuant to this section shall be limited
to a period of thirty (30) days after the petitioner has had actual notice of the
determination complained of, or could reasonably have had notice. However,
the petitioner shall have the opportunity to contest the validity of an underlying
notice of noncompliance in a timely-filed demand for hearing to contest the
validity of a cessation order issued for a failure to abate the violation contained
in the notice of noncompliance.
All hearings, other than conferences, under this chapter shall be held before a
hearing officer, duly qualified to practice law in the Commonwealth of
Kentucky, who may be a full-time employee of the cabinet, serve by contract,
or be paid on a per diem basis in the discretion of the cabinet. After the
conclusion of the hearing, the hearing officer shall within thirty (30) days make
to the secretary a report and recommended order which shall contain a finding
of fact and a conclusion of law. If the secretary finds upon written request of the
hearing officer that additional time is needed, the secretary may grant an
extension. The hearing officer shall serve a copy of his report and
recommended order upon all parties of record and their attorney of record to
the proceeding, and they shall be granted the right to file exceptions thereto
within fourteen (14) days of service. Any party may submit a written response
to exceptions within twenty-one (21) days of service of the report and
recommended order. Exceptions and responses not timely filed shall be noted
and made a part of the record but shall not be considered by the secretary in
making a final order. The secretary shall consider the report, exceptions, and
recommended order and decide the case. The decision shall be served by mail
upon all parties and their attorney of record and shall be a final order of the
cabinet.
Any party to a hearing under this subsection may be represented by counsel,
may make oral or written argument, offer testimony, cross-examine witnesses,
or take any combination of these actions. The record of the hearing shall be
open to public inspection, and copies thereof shall be made available to any
person upon payment of the actual cost of reproducing the original.
All hearings conducted pursuant to this chapter shall be open to the public.
The cabinet shall promulgate administrative regulations, pursuant to the
provisions set forth in this chapter, establishing formal and informal hearing
procedures by which any hearing shall, upon the written request of the
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operator, permittee, or person, be held in the county or regional office where
the surface coal mining operation is located, before an impartial hearing officer
who is independent of any prosecutorial functions of the cabinet. The
administrative regulations shall provide for the conduct of hearings and
investigation of any matter relating to the regulation of surface coal mining and
reclamation operations; provide for the assessment and payment of civil
penalties, including the placement of proposed civil penalty assessments into
an escrow account prior to a formal hearing on the amount of the assessment;
and provide for a waiver of the placement of the proposed civil penalties into
escrow for those individuals who demonstrate with substantial evidence an
inability to pay the proposed civil penalties into escrow. The procedures
developed pursuant to this subsection shall provide that the hearings be held in
the most expeditious manner possible within the time constraints established
under this chapter. No person who presided at a prior hearing shall either
preside at a subsequent hearing or participate in any further decision or
subsequent administrative appeal in the same matter.
The cabinet may promulgate administrative regulations pursuant to the
provisions set forth in this chapter establishing procedures for the holding of
administrative conferences needed to implement the provisions of this chapter.
The secretary may designate a deputy to sign any or all final orders of the
cabinet, whether the orders are the result of hearing or agreement.
Effective:June 20, 2005
History: Amended 2005 Ky. Acts ch. 123, sec. 51, effective June 20, 2005. -Amended 1996 Ky. Acts ch. 210, sec. 1, effective July 15, 1996. -- Amended
1994 Ky. Acts ch. 178, sec. 2, effective July 15, 1994. Created 1992 Ky. Acts
ch. 304, sec. 1, effective July 14, 1992.
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