Current through Register Vol. 51, No. 6, December 1, 2024
RELATES TO: KRS 39E.010, 39E.040, 39E.050, 39E.080, 39E.120,
39E.130, 39E.190, 39E.200, 39E.210, 39E.220, 39E.990
NECESSITY, FUNCTION, AND CONFORMITY: KRS 39E.010(1),
39E.040(6), and 39E.080(4) requires the Kentucky Emergency Response Commission
and the Division of Emergency Management to promulgate administrative
regulations to implement KRS Chapter 39E and 42 U.S.C. 11001 to 11050 governing
the reporting requirements and procedures for individuals, businesses, and
governmental agencies that manufacture, use, store, or transport hazardous
substances. KRS 39E.990 provides penalties for any person violating any
provision of KRS Chapter 39E, and any administrative regulation promulgated, or
order issued, pursuant to KRS Chapter 39E. This administrative regulation
provides the procedure to assess, protest, and appeal penalties provided for in
KRS 39E.990.
Section 1. Definitions.
(1) "Compliance Review Board" means any
current five (5) members of the Kentucky Emergency Response Commission,
selected by the commission chairman, to review and issue findings and
recommendations regarding violations of KRS 39E.050, 39E.120, 39E.130, 39E.190,
39E.220, or any administrative regulation promulgated or order issued pursuant
to KRS Chapter 39E, and issue penalties in accordance with 39E.990.
(2) "Notice of Non-Compliance" means the
notice sent to a facility owner or operator to inform them of a violation, or
violations, of KRS 39E or KAR Title 106 and the penalties due and owed pursuant
to KRS 39E.990.
Section
2. Notice of Non-Compliance.
(1)
The commission chairman, or designee, shall mail a notice of non-compliance
when the commission has notice of the existence of a violation of any provision
of KRS 39E.050, 39E.080, 39E.120, 39E.130, 39E.190, 39E.220, or any
administrative regulation promulgated or order issued pursuant to KRS Chapter
39E.
(2) The notice of
non-compliance shall contain the specific date, time, and place of the
violation, if applicable, and a summary of the factual, legal, or other grounds
upon which the notice is based, including the applicable provision of KRS
Chapter 39E or KAR Title 106.
(3)
Upon receiving a notice of non-compliance, the facility owner or operator
shall:
(a) Agree to the violation cited in the
notice of non-compliance and become compliant by remedying the violation,
submitting payment for past due fees, and submitting payment of penalties
within thirty (30) days of the date of the notice of non-compliance;
or
(b) Disagree with the violation
and penalty cited in the notice of non-compliance. If the facility owner or
operator disagrees with the notice of non-compliance, they may file a protest
in accordance with Section 3 of this administrative regulation.
(4) The commission may grant an
extension of time for actions in subsection (3)(a) of this section, to extend
beyond thirty (30) days, with the approval of the commission chairman or
designee.
Section 3.
Protesting a Notice of Non-Compliance.
(1) If
a facility owner or operator protests the notice of non-compliance, the protest
shall:
(a) Be received by the commission
within thirty (30) days from the date of the notice of
non-compliance;
(c) Contain a supporting
statement setting forth the grounds upon which the protest is made.
(2) Upon written request, the
commission may grant an extension for filing the supporting statement if it
determines the delay is necessary and unavoidable. The refusal of an extension
may be reviewed in the same manner as a protested notice of
non-compliance.
(3) If a protest
meets the requirements of subsection (1) of this section, the facility owner or
operator may waive or request a conference with the compliance review board.
(a) If a conference is requested, the
compliance review board shall give notice of the conference date, place, and
time to all affected persons. This notice shall be provided to the facility
owner or operator at least twenty (20) days before the date of the
conference.
(b) The conference may
be held in person, or virtually, and in accordance with the Open Meeting Act
requirements contained in KRS 61.800 to 61.850. The compliance review board
shall give the facility owner or operator, and other affected persons, an
opportunity to present a statement or evidence challenging the notice of
non-compliance. The facility owner or operator may appear in person or by a
designated representative.
(c)
Further conferences may be held by mutual agreement.
Section 4. Findings and
Recommendations and Final Decision.
(1) After
considering the protest, including any matters presented at the final
conference, the compliance review board shall issue findings and
recommendations on any matter in controversy. These findings and
recommendations shall be:
(b) Mailed to the facility
owner or operator, and to all affected parties pursuant to Section 6 of this
administrative regulation, within fourteen (14) days of issuance; and
(c) Mailed or transmitted to the chairman, or
his designee, within fourteen (14) days of issuance.
(2) The commission shall approve or
disapprove the findings and recommendations of the compliance review board and
issue a final decision at the first scheduled and available commission meeting
in which there is a quorum.
(3) The
final decision shall be signed by the commission chairman, or a designee,
stating that it is a final decision of the commission, generally state the
issue in controversy, the commission's position, and set forth the procedure
for an appeal.
(4) The facility
owner or operator shall have twenty (20) days after the final decision is
signed, issued, and mailed by certified mail, to:
(a) Resolve the findings; or
(b) Appeal the commission's final decision
pursuant to Section 5 of this administrative regulation by filing a request for
an administrative hearing.
Section 5. Appeal of the Commission's Final
Decision.
(1) The facility owner or operator
shall request an administrative hearing by mailing a request to the commission
chairman, or designee, within the time set forth in Section 4(4) of this
administrative regulation.
(2) Upon
receipt of the request, the commission chairman, or designee, shall request an
administrative hearing officer for an administrative hearing. The
administrative hearing shall be held according to the procedures in KRS 13B.050.
Section 6.
Service and Mailing of Documents.
(1) Service
of documents by the commission, commission chairman or designee, or the
compliance review board, shall be mailed by certified mail to the facility
owner or operator at the address shown on the annual inventory report or
facility plan required by KRS Chapter 39E. If no facility plans or annual
inventory report has been filed, then to the last known address.
(2) All documents filed with the commission,
commission chairman or designee, or the compliance review board, by any party,
shall be served by mail upon all other parties.,
STATUTORY AUTHORITY: KRS 39E.010(1), 39E.040(6), 39E.050(4),
39E.080(4), 39E.120, 39E.200(1), 39 E.210, 39E.990, 42 U.S.C. 11001 to 11050