Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO: KRS 149.330, 149.344, 149.346, 149.348
NECESSITY, FUNCTION, AND CONFORMITY: KRS 149.344(9) authorizes
the cabinet to promulgate administrative regulations to establish rules and
procedures to remove the bad actor designation from a logger or operator that
was previously designated a bad actor under KRS 149.344(8). This administrative
regulation establishes the requirements for removal of a bad actor
designation.
Section 1. Request and
Agreement.
(1) A logger or operator designated
as a bad actor under KRS 149.344(8), who has complied with the terms of the
secretary's orders or agreed orders, has completed corrective actions on all
sites with violations, and has paid all monetary penalties imposed by the
cabinet or the court, may request to have his bad actor designations
removed.
(2) The bad actor shall
submit to the Division of Forestry a written request to have each bad actor
designation removed.
(3) The bad
actor shall enter into a written agreement with the division in which he shall:
(a) Affirm that he meets the requirements of
subsection (1) of this section;
(b)
Agree to a two (2) year period of review, during which time he shall give prior
notice to the appropriate regional office or offices of the division of all
timber harvesting operations on which he is the primary contractor or master
logger in charge of operation, and agree that the division shall track and
inspect the timber harvesting operations as it deems necessary;
(c) Agree that the written agreement and the
two (2) year period of review shall be terminated if, during the review period,
he is issued a notice of violation as the primary contractor, or is actively
involved as a subcontractor or master logger on the site of a timber harvesting
operation that receives a notice of violation; and
(d) Affirm that he understands that the
designation shall be removed if the division determines that he meets the
requirements of Section 3(1) of this administrative regulation regarding his
compliance with orders, corrective actions on all sites with violations,
payment of monetary penalties, prior notification of timber harvesting
operations, and demonstration of adherence to implementing best management
practices during the review period.
Section 2. Review Period.
(1) The division shall notify the bad actor
in writing of the beginning date and anticipated ending date of the two (2)
year period of review.
(2) The
division shall conduct a two (2) year period of review during which the
division:
(a) Shall track all timber
harvesting jobs in which the bad actor is engaged that are applicable to the
review process; and
(b) May inspect
all the commercial timber harvesting operations that the bad actor
conducts.
(3) During the
two (2) year period of review, the bad actor shall provide prior notice to the
appropriate regional office or offices of the division of all timber harvesting
operations on which he is the primary contractor or master logger in charge.
(a) Notification shall be made by letter,
facsimile, email, telephone conversation, or in person, to the appropriate
regional office. A message left on an answering machine or voice mail service
shall not constitute valid notification.
(b) In the notification the bad actor shall
identify the anticipated dates of harvest and the location of the timber
harvesting site in sufficient detail to enable the division to locate the site
in the field. The location shall be identified in at least one of the following
ways:
1. Provide the name of the landowner,
the county, and the latitude and longitude of the site to the nearest one-tenth
(1/10) of a minute or the UTM (Universal Transverse Mercator) coordinates to
the nearest 100 meters;
2. Provide
the name of the landowner, the county, and a USGS (United States Geological
Survey) 7.5 minute topographic quadrangle map or reproduction thereof, marked
to show the name of the quadrangle map, the map scale, the north arrow, and the
exact location of the site; or 3. Provide the name of the landowner, the
county, the nearest named community and the approximate distance and direction
from the community to the site, the name and number of the nearest highway or
street, and a description of how to reach the site from the nearest road
intersection or other appropriate landmark.
(4) During the two (2) year period of review,
if the bad actor is issued a Notice of Violation or is actively involved with
any site that is issued a Notice of Violation, or fails to give prior notice of
the location of his logging operation in accordance with subsection (3) of this
section, the written agreement and review process shall be terminated and the
bad actor designation shall be retained.
Section 3. Removal of Designation.
(1) At the end of the two (2) year period of
review, the division shall remove the bad actor designation if it determines
that the bad actor:
(a) Has provided prior
notification of all timber harvesting operations in accordance with Section
2(3) of this administrative regulation;
(b) Has demonstrated adherence to
implementing best management practices on timber harvesting operations
conducted during the two (2) year period of review; and
(c) Is in compliance with the requirements
established in Section 1(1) of this administrative regulation.
(2) If the bad actor designation
is removed pursuant to subsection (1) of this section, the division shall:
(a) Notify the logger or operator in writing
that the designation has been removed; and
(b) Make information available to the public
which shows that the designation has been removed.
Section 4. Designation Not
Removed.
(1) If the written agreement and
review period are terminated pursuant to Section 2(4) of this administrative
regulation or if the review period is completed but the division is unable to
remove the designation pursuant to Section 3(1) of this administrative
regulation, the division shall notify the bad actor in writing and shall inform
the bad actor that he may begin the review process again in accordance with
Section 1(1) of this administrative regulation.
(2) If a bad actor is unsuccessful in having
the designation removed in three (3) consecutive review periods, the
designation shall become permanent.
Section 5. Removal of Second Designation.
(1) If a bad actor successfully completes the
review process and the bad actor designation is removed, and based upon
subsequent timber harvesting operations the operator then is designated a bad
actor for a second time, he may seek to have the second designation removed in
accordance with Section 1(1) of this administrative regulation.
(2) If the bad actor is unsuccessful in
having the second designation removed in two (2) consecutive review periods,
the designation shall become permanent.
Section 6. Third Designation. If a logger or
operator is designated a bad actor for a third time, the designation shall
become permanent.
STATUTORY AUTHORITY: KRS 149.334(5),
149.344(9)