Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO:
KRS 224.10-100(5),
(18), (19), (22), (23), (26),
224.10-420,
224.10-440,
224.20-110
NECESSITY, FUNCTION, AND CONFORMITY:
KRS
224.10-100 requires the Environmental and
Public Protection Cabinet to prescribe administrative regulations for the
prevention, abatement and control of air pollution. This administrative
regulation provides for enforcement of the terms and conditions of permits and
compliance schedules.
Section 1.
Permits and Compliance Schedules Subject to Conditions. Permits and compliance
schedules issued under these administrative regulations shall be subject to
such terms and conditions set forth in the permit or compliance schedule as the
cabinet may deem necessary to insure compliance with all applicable standards.
Such terms and conditions may include, but shall not be limited to, the
maintenance and production for inspection of records relating to operation
which may cause or contribute to air pollution including periodic source or
stack sampling, or periodic ambient air monitoring.
Section 2. Permit Revocation. The cabinet may
revoke any permit issued under these administrative regulations if the
permittee:
(1) Willfully makes material
misstatements in the permit application or any amendments thereto;
(2) Fails to comply with the terms or
conditions of the permit;
(3) Fails
to comply with any emission standards applicable to an affected facility
included in the permit;
(4) Causes
emissions from the source which result in violations of, or interfere with the
attainment and maintenance of, any ambient air quality standards contained in
Title 401, Chapter 53, of these administrative regulations or result in an
exceedance of any allowable increase over baseline concentrations contained in
Title 401, Chapter 51, of these administrative regulations;
(5) Fails to report construction,
modification, alteration, or reconstruction of an affected facility.
Section 3. Compliance Schedule
Revocation. The cabinet may revoke a compliance schedule issued under these
administrative regulations if the owner or operator of the source or any other
person acting on his behalf:
(1) Willfully
makes material misstatements in the application for the compliance schedule or
in any communications relied upon by the cabinet in issuing the compliance
schedule;
(2) Fails to comply with
the terms and conditions of the compliance schedule, including but not limited
to any increment dates and any interim emission standards;
(3) Fails to report construction,
modification, alteration or reconstruction of the affected
facilities.
Section 4.
Suspensions, Modifications, Violation of Administrative Regulations Subject to
Penalties.
(1) The grounds for revocation of
permits and compliance schedules listed in Sections 2 and 3 of this
administrative regulation are declared to be violations of these administrative
regulations and are subject to the penalties and all other relief contained in
KRS
224.99-010.
(2) The cabinet may order appropriate
modifications to any permit or compliance schedule whenever it appears that the
conditions of the permit or compliance schedule will not be sufficient to meet
all of the standards and requirements contained in these administrative
regulations, including but not limited to Title 401, Chapters 51, 57, 59 and
61.
(3) The cabinet may suspend
under such conditions and for such period of time as the cabinet may prescribe
any permit or compliance schedule for any of the grounds for revocation
contained in Sections 2 and 3 of this administrative regulation or for any
other violations of these administrative regulations.
Section 5. Administrative Hearing Procedures.
(1) Whenever the cabinet has reason to
believe that a violation of any of the provisions of KRS Chapter 224 or these
administrative regulations has occurred it shall issue and serve upon the
person complained against a written notice of the provision of KRS Chapter 224
or the rule or administrative regulation alleged to have been violated and the
facts alleged to constitute the violation thereof and shall require the person
so complained against to answer the charges set out in the notice at a hearing
before the cabinet. Nothing herein shall prevent the cabinet from seeking all
appropriate relief in circuit court.
(2) Any person not previously heard in
connection with the issuance of any order or the making of any determination,
including but not limited to the issuance, denial, modification, or revocation
of any permit, by which he considers himself aggrieved may file with the
cabinet a petition alleging that such order or determination is contrary to law
or fact and is injurious to him, alleging 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. The right to demand such a hearing
shall be limited to a period of thirty (30) days after the petitioner has had
actual notice of the order or determination, or could reasonably have had such
notice.
(3) The cabinet shall
schedule a hearing before the cabinet not less than twenty-one (21) days after
notice of such a hearing is served upon the parties, unless the person
complained against waives in writing the twenty-one (21) day period. The notice
of the hearing shall include a statement of the time, place, and nature of the
hearing; the legal authority for the hearing; reference to the statutes and
administrative regulations involved; and a short statement of the reason for
the granting of the hearing.
(4)
Prior to the formal hearing, and upon seven (7) days written notice to all
parties, delivered personally or by certified mail, return receipt requested,
the hearing officer may hold a prehearing conference to consider simplification
of the issues, admissions of fact and documents which will avoid unnecessary
proof, limitations of the number of witnesses and such other matters as will
aid in the disposition of the matter. Disposition of the matter may be made at
the prehearing conference by stipulation, agreed settlement, consent order, or
default for nonappearance.
(5)
(a) Any party to a hearing may be represented
by counsel, may make oral or written argument, offer testimony, cross-examine
witnesses, or take any combination of such actions. A hearing officer shall
preside at the hearing, shall keep order, and shall conduct the hearing in
accordance with reasonable administrative practice.
(b) Irrelevant, immaterial, or unduly
repetitious evidence shall be excluded. When necessary to ascertain facts not
reasonably susceptible of proof under judicial rules of evidence, evidence not
admissible thereunder may be admitted (except where precluded by statute) if it
is of a type commonly relied upon by reasonably prudent men in the conduct of
their affairs. Hearing officers shall give effect to the rules of privilege
recognized by law. Objections to evidentiary offers may be made and shall be
noted in the record. Subject to these requirements, when a hearing will be
expedited and the interests of the parties will not be prejudiced
substantially, any part of the evidence may be received in written form.
Documentary evidence may be received in the form of copies or excerpts, if the
original is not readily available. Upon request, parties shall be given an
opportunity to compare the copy with the original. A party may conduct
cross-examinations required for a full and true disclosure of the facts. Notice
may be taken of generally recognized technical or scientific facts within the
cabinet's specialized knowledge. Parties shall be notified either before or
during the hearing, or by reference in preliminary reports or otherwise, of the
material noticed, including any staff memoranda or data and they shall be
afforded an opportunity to contest the material so noticed. The cabinet's
experience, technical competence, and specialized knowledge may be utilized in
the evaluation of the evidence.
(c)
It will be within the hearing officer's discretion to require official
transcripts or to set up other procedures for taking evidence including but not
limited to the use of mechanical recording devices for recording the testimony.
The record of such hearing, consisting of all pleadings, motions, rulings,
documentary and physical evidence received or considered, a statement of
matters officially noticed, questions and offers of proof, objections and
rulings thereon, proposed findings and recommended order, and legal briefs,
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
except as provided in
KRS
224.10-210. The cabinet may cause the
mechanical recording of the testimony to be transcribed. When certified as true
and correct copy of the testimony by the hearing officer, the transcript shall
constitute the official transcript of the evidence.
(d) The hearing officer shall within thirty
(30) days of the closing of the hearing record make a report and a recommended
order to the secretary. The order shall contain the appropriate findings of
fact and conclusions of law. If the secretary finds upon written request of the
hearing officer that additional time is needed, then the secretary may grant a
reasonable extension. The hearing officer shall serve a copy of his report and
recommended order upon all parties. The parties may file within seven (7) days
of service of the hearing officer's report and recommended order exceptions to
the recommended order. The secretary shall consider the report and recommended
order and exceptions. The secretary may remand to the hearing officer the
matter for further deliberation, adopt the opinion of the hearing officer as
the cabinet's or issue his own written order based on the report and
recommended order. The secretary shall act within twenty (20) days of the
deadline for filing exceptions, unless extensions of time have been granted to
the hearing officer, pursuant to paragraph (e) of this subsection.
(e) After completion of the hearing and
filing of exceptions, the cabinet shall notify the parties in writing,
certified mail, return receipt requested, of the final decision of the cabinet.
If any extension of time is granted by the secretary for a hearing officer to
complete his report, the cabinet shall notify all parties at the time of the
granting of the extension. Parties shall have seven (7) days to file exceptions
to the report and recommended order if such an extension is granted.
(f) The secretary shall not grant extensions
of time to the hearing officer for more than thirty (30) days for any one (1)
extension, and no more than two (2) such extensions shall be granted.
(g) A final order of the cabinet shall be
based on the preponderance of the evidence appearing in the record as a whole
and shall set forth the decision of the cabinet and the facts and law upon
which the decision is based.
(h)
There shall be no ex parte communications between a hearing officer and parties
to the action.
(i) Any person
aggrieved by a final order of the cabinet may have recourse to the courts as
set forth in
KRS
224.10-470.
STATUTORY AUTHORITY:
KRS
224.10-100