Current through Register Vol. 50, No. 9, March 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),
39E.050(4),
39E.080(4),
39E.120,
39E.200(1),
and
39E.210
require the Kentucky Emergency Response Commission and the Division of
Emergency Management to promulgate administrative regulations governing the
activities of the Kentucky Emergency Response Commission, including standards
and procedures for the operations of the commission and local emergency
planning committees, fee system, hazardous substance inventory and substance
release reporting, emergency procedures and requirements, and establishment of
warning and notification standards. This administrative regulation establishes
procedures to be followed to assess civil penalties by the Kentucky Emergency
Response Commission as provided for in
KRS 39E.990.
Section 1. General Provisions.
(1) The commission shall commence an
administrative action to impose a civil penalty under
KRS
39E.990(3) against a person
if the commission has notice of the existence of a violation of any provision
of
KRS
39E.010,
39E.040,
39E.050,
39E.080,
39E.120,
39E.130,
39E.190,
39E.200,
39E.210,
39E.220,
or
39E.990.
(2)
(a) The
commission chairman (or designee) shall mail to the alleged violator a writing
styled "NOTICE OF VIOLATION", which shall contain the specific date, time, and
place of the violation, if applicable, together with a summary of the factual,
legal, and other grounds upon which the notice of violation is based, and the
specific provisions of
KRS
39E.010,
39E.040,
39E.050,
39E.080,
39E.120,
39E.130,
39E.190,
39E.200,
39E.210,
39E.220,
or
39E.990 or Title 106
KAR that were allegedly violated.
(b) Recitation of statutory or regulatory
standards shall not be a sufficient summary of the grounds for the commission's
action.
(3) The
commission chairman (or designee) may attempt to informally resolve the
violation. Informal resolution shall be in accordance with Section 3 of this
administrative regulation.
(4) If,
after ninety (90) days from the issuance of the notice of violation the alleged
violation is unresolved, the commission chairman (or designee) shall issue a
notice of administrative hearing, following the requirements of
KRS
13B.050.
Section 2. Informal Proceedings. After an
administrative action commences, the commission may seek informal resolution of
the dispute with a party. Resolution shall be as established in this section.
(1) The commission shall give notice not less
than twenty (20) days prior to an informal proceeding to all affected persons
of the commission's notice of violation.
(2) After giving notice, the commission shall
give affected persons or parties an opportunity, at a mutually convenient time
and place, to present to an authorized commission representative evidence in
opposition to the commission action or determination, or to give a statement
challenging the grounds upon which the commission has chosen to justify its
action or determination.
(3) The
authorized representative of the commission shall give the affected person's
evidence and objections due consideration, and notify all affected persons in
writing within fourteen (14) days of the receipt of the evidence or objections
of the commission's decision.
Section
3. Parties. The parties to the proceeding shall be the commission
chairman (or designee) and the alleged violator who shall be designated
respondent. A person may be permitted to intervene in any action by filing a
petition for intervention in accordance with
KRS
13B.060.
Section 4. Assignment to Hearing Officer;
Duties and Authority.
(1) Within ten (10) days
of the filing of the notice of violation, the commission shall designate a
hearing officer for formal administrative action in any manner consistent with
KRS
13B.030. If the commission elects to
designate a hearing officer from the Division of Administrative Hearings in the
Office of the Attorney General under
KRS
13B.030, the commission shall make that
request in writing to the division within ten (10) days of the filing of the
notice of violation.
(2) Assignment
of a hearing officer from the Division of Administrative Hearings of the Office
of the Attorney General shall be made according to
400 KAR
1:001,
400
KAR 1:030,
400 KAR
1:040, 400 KAR1:090, and
401
KAR 100:010.
(3) A request for or assignment of a hearing
officer under
KRS
13B.030(2) shall be a
designation of a hearing officer under these administrative regulations and a
delegation to the hearing officer under
KRS
13B.030(1) of all powers
conferred on and relating to the conduct of the administrative action. The
hearing officer shall have the authority to take any procedural action
authorized by KRS Chapter 13B, Title 106 KAR,
400 KAR
1:001,
400
KAR 1:030,
400 KAR
1:040,
400 KAR
1:090, or
401
KAR 100:010, including, for example, the authority to:
(a) Administer oaths and
affirmations;
(b) Issue subpoenas
for witnesses and production of documents or things;
(c) Regulate discovery;
(d) Rule on procedural requests;
(e) Hold prehearing conferences;
(f) Regulate the course of, and maintain
order in the administrative hearing;
(g) Rule on evidentiary matters and admit in
or exclude evidence from the record;
(h) Examine witnesses;
(i) Require the parties to submit legal
memoranda, and proposed findings of fact and conclusions of law;
(j) Make proposed findings of fact,
conclusions of law, and recommended orders for the agency head; and
(k) Take any action consistent with law to
promote the orderly and prompt conduct of the administrative
action.
Section
5. Continuances.
(1) Any party
may request a continuance of a scheduled hearing for a death, serious illness
or injury, emergency, or other unforeseen event or circumstance beyond the
ability of a person acting with reasonable care and diligence to control that
reasonably prevents a party from attending the hearing.
(a) The request shall be in writing and
include the reason for the request.
(b) The request shall be submitted to the
commission chairman (or designee) at least ten (10) days prior to the hearing
date.
(2) Any party
objecting to a requested continuance may file a written objection to the
commission chairman (or designee) at least five (5) days prior to the scheduled
hearing.
(3) The hearing officer
shall rule on all requests for a continuance.
(a) In the hearing officer's absence, the
commission chairman (or designee) shall rule on the requests.
(b) The commission chairman (or designee)
shall execute and transmit an order either granting or denying the continuance
to all parties involved.
Section 6. Conflict of Interest; Recusal.
(1) If at any time during an administrative
action an assigned hearing officer's continued service would violate the
standard set forth in
KRS
13B.040(2)(a) or a canon of
judicial ethics, that hearing officer shall recuse and enter a written order
withdrawing from the administrative action.
(2) At any point during an administrative
action a party may move the hearing officer to recuse from an administrative
action. The motion to recuse shall be in writing filed in the record and shall
be supported by an affidavit setting forth specific facts that demonstrate one
(1) or more of the grounds for recusal set forth in
KRS
13B.040(2)(b).
(3) Within ten (10) days of recusal of a
hearing officer, the commission shall request or assign another hearing officer
by written order.
Section
7. Ex Parte Contact Prohibited.
(1) Unless otherwise allowed by
KRS
13B.100, there shall be no administrative
action, or any person working under the hearing officer's supervision, and any
person with a direct or indirect interest in the outcome to that administrative
action concerning the merits of the administrative action assigned to the
hearing officer.
(2) This
administrative regulation shall not prohibit ex parte contact with staff on
purely procedural matters not at issue in the case. This section shall not
prohibit communications with staff regarding the status of a case.
(3) Upon receiving an ex parte contact
prohibited by this section, the hearing officer shall take every action
required under
KRS
13B.100, shall cause the parties to be
notified of the contact, and shall inform the other parties to the action of
their right to move for a recusal.
(4) The hearing officer may impose
appropriate sanctions on a person who knowingly makes a prohibited ex parte
contact, including deeming the person to have defaulted; striking all or part
of that person's pleadings, claims, or defenses; denying any pending motions by
the party; issuing a show cause order requiring the person to show why the
hearing officer should not sanction the person; or taking such other actions as
are appropriate pursuant to KRS Chapter 13B.
Section 8. Motion for Summary Disposition. A
hearing officer may grant a motion for a summary disposition and recommend the
agency head rule in the moving party's favor if the hearing officer finds that
there is no genuine dispute as to any issue of material fact and the moving
party is entitled to a summary disposition as a matter of law.
Section 9. Filing of Papers.
(1) All papers after the petition required to
be served upon a party shall be filed with the commission either before service
or not less than twenty (20) days in advance of a hearing.
(2) Pleadings and other papers shall be filed
with the commission when they are received and endorsed by the commission. The
commission shall endorse the date of receipt on every paper filed in an action
immediately upon receipt.
(3)
Papers may be filed with the commission by telefacsimile machine at the
telefacsimile telephone number listed for the commission on the notice of
violation.
(a) A party filing by telefacsimile
machine shall include a certificate that the paper is being filed by fax and
the original paper is being filed by mail and shall immediately after faxing a
paper mail the original paper to the commission.
(b) The filing date of a paper sent by
facsimile shall be the date the commission receive the original, unless the
original is received with five (5) business days of the facsimile, in which
case the filing date shall be the date the commission received the
facsimile.
(4) Papers may
be filed electronically to email tier2kyem@gmail.co.. Papers filed
electronically via email shall include a certificate that the paper copy is
being filed by email and the original paper is being filed by mail immediately
after electronic submittal.
(5)All
papers filed in an administrative action shall be signed by the filing person.
(a) The signature of the filing person or his
or her authorized representative constitutes a certificate that the signing
person has read the paper and that to the best of his or her knowledge,
information and belief formed after reasonable inquiry, it is not interposed
for any improper purpose.
(b) If a
paper is signed in violation of this subsection, the hearing officer may strike
the paper from the record, deem the party to have failed to file the paper, and
take any action allowed as a consequence of the failure, strike all or part of
any pleading, claim or defense asserted in the filing, or bar an attorney
violating this subsection from future participation in that administrative
action, and recommend that the agency head bar that attorney from appearing in
future administrative actions before the commission.
Section 10. Venue. Administrative
hearings shall be conducted at a site designated by the hearing officer. In
determining venue, the hearing officer shall consider the requirements of law
and the convenience of the parties, the witnesses, and the evidence.
Section 11. Default.
(1) If a party fails to timely comply with an
order of a hearing officer or a requirement of these administrative
regulations, the hearing officer shall file an order directing the noncomplying
party to show cause why the hearing officer should not deem that party to have
waived his or her right to an administrative hearing and why the hearing
officer should not immediately recommend that the commission chairman (or
designee) enter an order adverse to the party. If the noncomplying party does
not satisfy the show cause order as required, the hearing officer may recommend
the entry of a final order in conformity with the relief requested by the
opposing party in the administrative action.
(2) If a party fails to appear at a formal
administrative hearing, the hearing officer may deem that party to have waived
his or her right to a formal administrative hearing and may immediately
recommend the commission chairman (or designee) enter a final order in
conformity with the relief requested in the appropriate pleadings, or may
proceed without the defaulted party.
(3) Upon the failure of a party to timely
comply with a hearing officer's order, the hearing officer may recommend the
commission chairman (or designee) grant any relief to which the opposing party
is entitled.
(4) A hearing officer
may, before the time for filing exceptions has run, set aside a recommendation
by default under this section for a death, serious illness or injury,
emergency, or other unforeseen event or circumstance beyond the ability of a
person acting with reasonable care and diligence to control that reasonably
prevents a party from complying.
Section 12. Burden of Proof.
(1) The commission shall have the burden of
going forward to establish a prima facie case and the ultimate burden of
persuasion to show the propriety of the commission's action.
(2) The party asserting an affirmative
defense shall have the burden of going forward and the ultimate burden of
persuasion to establish that defense.
(3) The ultimate burden of persuasion in all
administrative actions shall be met by a preponderance of substantial evidence
in the record.
Section
13. Findings of Fact, Conclusions of Law, and Recommended Order.
The hearing officer shall make findings of fact, conclusions of law, and issue
a recommended order for review and approval by the full commission with service
on all parties.
(1) Any party may take
exception in writing within fifteen (15) days of mailing of the hearing
officer's recommended order. Thereafter, the commission chairman (or designee),
shall, as directed by the commission, approve the findings of fact, conclusions
of law, and recommended order or may modify the findings of fact, conclusions
of law and recommended order.
(2)
If no exceptions are filed and the commission takes no action on the hearing
officer's findings of fact and conclusions of law, within thirty (30) days, the
order of the hearing officer shall be final.
Section 14.
(1) Service of the notice of violation,
notice of administrative hearing, and the hearing officer's recommended order
shall be made by certified mail to the alleged violator at the address shown on
the annual inventory report or facility plan required to be filed by KRS
Chapter 39E. If no facility plan or annual inventory report has been filed,
then to the last known address.
(2)
All documents filed with the commission 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
The
amended version of this section by; eff.
6/1/2025 is not yet
available.