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350.032 Enforcement of subpoenas -- Judicial review of final orders -- Forfeiture of
performance bond -- Temporary relief pending final determination.
(1)
(2)
(3)
In case of refusal to obey a subpoena issued to any person, any Circuit Court of
competent jurisdiction, upon application by any party, may issue to that person an
order requiring him to appear before the cabinet, there to produce documentary
evidence if so ordered or to give evidence touching the matter under investigation or
in question; and any failure to obey the order of the court may be punished by the
court as a contempt of court.
Any person aggrieved by a final order of the cabinet resulting from a hearing on the
issuance of a notice of noncompliance, the issuance of an order for cessation and
immediate compliance, the assessment of civil penalties, or a bond forfeiture may
obtain a review of the order by filing in the Franklin Circuit Court or the Circuit
Court of the county within which the mine is located, within thirty (30) days after
the entry of the order, a written petition praying that the order be modified or set
aside in whole or in part, provided that a surety on a performance bond shall not file
such petition until it has complied with subsection (3) of this section. A copy of the
petition shall be forthwith served upon the cabinet, and thereupon the cabinet shall
certify and file in court a copy of the record before the cabinet, including therein all
pleadings, orders, documentary exhibits and the stenographic transcript of the
testimony taken before the cabinet. When these have been filed, the court shall have
exclusive jurisdiction to affirm, modify, enforce or set aside the order, in whole or
in part. No objection to the order may be considered by the court unless it was urged
before the cabinet or there were reasonable grounds for failure to do so. The
findings of the cabinet as to the facts, if supported by substantial evidence, are
conclusive. If either party applies to the court for leave to adduce additional
evidence, and shows to the satisfaction of the court that the additional evidence is
material and that there were reasonable grounds for failure to adduce the evidence
in the hearings before the cabinet, the court may order that additional evidence be
taken before the cabinet in such manner and upon such condition as the court may
consider proper. The cabinet may modify its findings as to the facts, by reason of
the additional evidence so taken; and it shall file any modified or new findings with
the court, which if supported by substantial evidence shall be conclusive, and any
recommendation for the modification or setting aside of the original order. The
commencement of the proceedings under this section does not, unless specifically
ordered by the court, operate as a stay of the cabinet's order. An appeal may be
taken from the judgment of the Circuit Court to the Court of Appeals on the same
terms and conditions as an appeal is taken in any civil action.
Where the cabinet has ordered forfeiture of a performance bond, the surety shall
forward to the cabinet by certified mail a cashier's check for the required amount
within seven (7) business days from the effective date of the order. The cabinet shall
establish an interest-bearing escrow account and shall deposit therein the full
amount of the forfeiture rendered by the surety. The amount shall continue to be
held by the cabinet until completion of judicial review as authorized in subsection
(2) of this section. If the final decision following the review reverses the order of
(4)
the secretary of the cabinet, the cabinet shall within thirty (30) days of receipt of
such order, refund to the surety the appropriate amount plus all interest accrued
from the date of deposit to the date of the final order.
In the case of a proceeding to review any order or decision issued by the secretary
under this chapter pertaining to surface coal mining operations, the court may, under
such conditions as it may prescribe, grant such temporary relief as it deems
appropriate pending final determination of the proceedings if:
(a) All parties to the proceedings have been notified and given an opportunity to
be heard on a request for temporary relief;
(b) The person requesting the relief shows that there is a substantial likelihood
that he will prevail on the merits of the final determination of the proceeding;
and
(c) The relief will not adversely affect the public health or safety or cause
significant imminent environmental harm to land, air, or water resources.
Effective: July 15, 1994
History: Amended 1994 Ky. Acts ch. 178, sec. 4, effective July 15, 1994. -- Amended
1986 Ky. Acts ch. 331, sec. 47, effective July 15, 1986; and ch. 400, sec. 1, effective
July 15, l986. -- Amended 1984 Ky. Acts ch. 145, sec. 1, effective March 28, 1984;
and ch. 257, sec. 1, effective July 13, 1984. -- Amended 1982 Ky. Acts ch. 192, sec.
2, effective July 15, 1982. -- Amended 1972 (1st Extra. Sess.) Ky. Acts ch. 3, sec. 62.
-- Created 1962 Ky. Acts ch. 105 , sec. 2 (4) and (6).
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