Kentucky Administrative Regulations
Title 805 - ENERGY AND ENVIRONMENT CABINET
Chapter 8 - Sanctions and Penalties
Section 805 KAR 8:060 - Criteria for the imposition and enforcement of sanctions against licensed premises
Universal Citation: 805 KY Admin Regs Service 8:060
Current through Register Vol. 51, No. 3, September 1, 2024
RELATES TO: KRS 351.010(1)(m), 351.025, 351.1041, 351.175, 351.194, 352.010-352.550
NECESSITY, FUNCTION, AND CONFORMITY: KRS 351.070(13) authorizes the Secretary of the Energy and Environment Cabinet to promulgate administrative regulations necessary and suitable for the proper administration of KRS Chapter 351. KRS 351.025(2) requires the Department for Natural Resources to promulgate administrative regulations that establish comprehensive criteria for the Mine Safety Review Commission's imposition of penalties against licensed premises for violations of Kentucky mine safety laws that place miners in imminent danger of serious injury or death. KRS 351.070(15) requires the Cabinet to promulgate administrative regulations providing for the manner and method of assessing penalties by the Commissioner of the Department for Natural Resources against licensed facilities for violations of KRS Chapters 351 and 352 that relate to roof control plans, mine seal construction plans, unsafe working conditions and mine ventilation plans that could lead to imminent danger or serious physical injury. This administrative regulation establishes the criteria for the revocation, suspension, or probation of a mine's license, and the imposition of civil monetary penalties against a licensed premises.
Section 1. Definitions.
(1) "Commission" means the Mine
Safety Review Commission.
(2)
"First offense" means the first violation by a licensed premises of a mine
safety law that places a miner in imminent danger of serious physical injury or
death, as adjudicated by the Mine Safety Review Commission, including:
(a) Failure to comply with the reporting
requirements set forth in KRS 352.180(1);
(b) The violation of a roof control plan,
mine seal construction plans, or mine ventilation plan; or
(c) Violations pertaining to unsafe working
conditions that may lead to imminent danger or serious physical
injury.
(3) "Licensed
facility" or "licensed premises" means "licensee", as defined by KRS 351.010(1)(o) and 352.010(1)(s).
(4) "Mine ventilation plan" means the
ventilation plan, including any revisions as approved by the United States Mine
Safety and Health Administration.
(5) "Related successor" means an entity that
obtains a license for a mine, if that entity is linked by common legal or
equitable ownership through one (1) or more owners, to a previous licensee for
that same mine or location.
(6)
"Second offense" means the second violation by a licensed premises of a mine
safety law that places a miner in imminent danger of serious physical injury or
death, as adjudicated by the Mine Safety Review Commission, including:
(a) Failure to comply with the reporting
requirements set forth in KRS 352.180(1);
(b) The violation of a roof control plan,
mine seal construction plans, mine ventilation plan; or
(c) Violations pertaining to unsafe working
conditions that may lead to imminent danger or serious physical
injury.
(7) "Subsequent
offense" means a violation beyond the third offense by a licensed premises of a
mine safety law that places a miner in imminent danger of serious physical
injury or death, as adjudicated by the Mine Safety Review Commission,
including:
(a) Failure to comply with the
reporting requirements set forth in KRS 352.180(1);
(b) The violation of a roof control plan,
mine seal construction plans, mine ventilation plan; or
(c) Violations pertaining to unsafe working
conditions that may lead to imminent danger or serious physical
injury.
(8) "Third
offense" means the third violation by a licensed premises of a mine safety law
that places a miner in imminent danger of serious physical injury or death, as
adjudicated by the Mine Safety Review Commission, including:
(a) Failure to comply with the reporting
requirements established in KRS 352.180(1);
(b) The violation of a roof control plan,
mine seal construction plans, mine ventilation plan; or
(c) Violations pertaining to unsafe working
conditions that may lead to imminent danger or serious physical
injury.
(9) "Unsafe
working conditions" means a condition that involves a hazard that:
(a) Can reasonably be expected to cause a
miner serious injury or death;
(b)
A foreman, superintendent or mine management was aware of or should have been
aware of; and
(c) Was allowed to
exist, without being corrected or addressed.
Section 2. Criteria for the Imposition and Enforcement of Sanctions Against Licensed Premises for Violations of Mine Safety Laws.
(1)
(a) If the Commission determines, pursuant to
KRS 351.194, that a licensed premises has committed a first offense, the
commission may place the licensed premises on probation for a period of time to
be determined by the commission, pursuant to KRS 351.194(5), which shall be in
proportion to the seriousness of the violations and the facts of the
case.
(b) The commission may also
impose a civil monetary penalty against the licensed premises, in accordance
with KRS 351.025(2) and the factors established in KRS 351.194(7).
(2)
(a) If a licensed premises is placed on
probation for a first offense violation pursuant to subsection (1) of this
section, the commission may impose the terms of the probation, and it may
impose penalties for the violation of the terms of probation, including the
suspension or revocation of the mine's license.
(b) If the licensed premises satisfies the
terms of its probation, the probation shall automatically expire at the end of
the probationary period.
(3)
(a) The
department may file charges against a licensed premises for any alleged
violation of its probationary terms.
(b) Hearings regarding the allegations shall
be conducted by the Kentucky Mine Safety Review Commission, pursuant to 825 KAR 1:020.
(4)
(a) If the Commission determines, pursuant to
KRS 351.194, that a licensed premises has committed a second offense, the
commission may suspend or revoke the mine's license for a period of not less
than two (2) calendar years, up to and including revocation, pursuant to KRS 351.194(5) and (6), and in proportion to the seriousness of the violations and
the facts of the case.
(b) The
commission may also impose a civil monetary penalty against the licensed
premises, in accordance with KRS 351.025(2) and the factors established in KRS 351.194(7).
(5)
(a) If a mine license is suspended for a
second offense violation pursuant to subsection (4) of this section, it shall
be automatically reinstated at the end of the period of suspension.
(b) If the mine's license is revoked, the
licensed premises may apply to the Office of Mine Safety and Licensing for the
reinstatement of its mine license at the end of the revocation
period.
(c) The Office of Mine
Safety and Licensing may grant or deny the application. The office shall grant
the application only if the licensed premises is in full compliance with orders
of the Mine Safety Review Commission and KRS 351.175.
(6)
(a) Upon
the adjudication by the Mine Safety Review Commission of a third offense by a
licensed premises, the commission shall revoke the mine's license for a period
of not less than three (3) calendar years, up to and including a permanent
revocation without possibility of reinstatement, pursuant to KRS 351.194(5) and (6) and in proportion to the seriousness of the violations and the facts of the
case.
(b) If the revocation is for
a period of less than a permanent revocation without possibility of
reinstatement, the licensed premises may apply to the Office of Mine Safety and
Licensing for the reinstatement of its mine license at the end of the
revocation period.
(c) The Office
of Mine Safety and Licensing may grant or deny the application. The office
shall grant the application only if the licensed premises is in full compliance
with orders of the Mine Safety Review Commission and KRS 351.175.
(d) If a third offense is committed by a
licensed premises, the commission may also impose a civil monetary penalty
against the licensed premises, in accordance with KRS 351.025(2) and the
factors established in KRS 351.194(7).
(7)
(a) If a
licensed premises commits a violation of a mine safety law that results in the
death of a miner, whether the violation is first or subsequent offense, the
Mine Safety Review Commission may suspend or revoke the mine's license,
including permanent revocation of the license without the possibility for
reinstatement, pursuant to KRS 351.194(5) and (6) and in proportion to the
seriousness of the violations and the facts of the case.
(b) If the commission suspends the mine's
license, it shall be automatically reinstated at the end of the period of
suspension.
(c) If the commission
revokes the mine's license for a period of less than a permanent revocation
possibility of reinstatement, the licensed premises may apply to the Office of
Mine Safety and Licensing for the reinstatement of its mine license at the end
of the revocation period.
(d) The
Office of Mine Safety and Licensing may grant or deny the application. The
office shall grant the application only if the licensed premises is in full
compliance with Orders of the Mine Safety Review Commission and KRS 351.175.
(e) The commission may
also impose a civil monetary penalty against the licensed premises, in
accordance with KRS 351.025(2) and the factors established in KRS 351.194(7).
(8) If a
licensed premises that has committed one (1) or more violations pursuant to
subsection (1), (4), (6), or (7) of this section is subsequently sold or goes
out of business, penalties imposed on that licensed premises for those
violations shall be imposed upon an entity that is determined by the commission
to be a related successor to the licensed premises in question, after a hearing
conducted pursuant to KRS 351.194.
Section 3. Criteria for the Imposition and Enforcement of Civil Penalties Against Licensed Facilities for Violations of Roof Control Plans, Mine Seal Construction Plans, Unsafe Working Conditions, or Mine Ventilation Plans.
(1) Amount of penalty.
The commissioner or the commissioner's designee shall assess monetary penalties
to a licensed facility that has been issued a noncompliance or closure order
for a violation of the provisions of KRS Chapters 351 and 352 relating to roof
control plans, mine seal construction plans, unsafe working conditions, and
mine ventilation plans that may lead to imminent danger or serious physical
injury, or have resulted in serious physical injury or death, as follows:
(a) If the licensed facility has not had
previous violations during the previous twenty-four (24) months relating to
roof control plans, mine seal construction plans, unsafe working conditions, or
mine ventilation plans that may lead to imminent danger or serious physical
injury, the penalty shall not be more than $2,500;
(b) If the licensed facility has had one
prior offense during the previous twenty-four (24) months relating to the
violation of the roof control plans, mine seal construction plans, unsafe
working conditions, or mine ventilation plan that resulted in the assessment of
a penalty pursuant to this section, the penalty for a violation that may lead
to imminent danger or serious physical injury shall not be more than
$4,000;
(c) If the licensed
facility has had two (2) or more offenses relating to a violation during the
previous twenty-four (24) months of the roof control plans, mine seal
construction plans, unsafe working conditions, or mine ventilation plan that
resulted in an assessment of a penalty pursuant to this section, the penalty
for a violation that may lead to imminent danger or serious physical injury
shall not be more than $5,000;
(d)
If the violation of the roof control plans, mine seal construction plans,
unsafe working conditions, or mine ventilation plan results in the serious
physical injury or death of a miner, the penalty shall be $5,000, even if the
licensed facility has been previously cited for the violation or assessed a
penalty pursuant to this section; and
(e) Factors to be considered. In determining
the amount of the penalty to be assessed, consideration shall be given to the
following:
1. The licensed premises'
cooperation with investigators;
2.
The severity of the harm done, such as whether the violation resulted in:
a. Death;
b. Serious physical injury; or
c. The placement of an individual in imminent
harm;
3. The licensed
premises' acceptance of responsibility for its actions;
4. The licensed premises' history of
violations;
5. Mitigating
circumstances; and
6. Aggravating
circumstances.
(2) Notification. The commissioner or
commissioner's designee shall notify a licensed facility that has been assessed
a penalty pursuant to this section of the amount of the assessment.
(3) Service.
(a) The notice of proposed penalty assessment
shall be served on the licensed facility within thirty (30) days after the
proposed penalty assessment is completed.
(b) Failure to serve the proposed assessment
within thirty (30) days shall not be grounds for dismissal of all or part of
the assessment unless the licensee proves actual and substantial prejudice as a
result of the delay.
(c) Service
shall be made by one (1) or more of the following methods:
1.
a. The
commissioner or the commissioner's designee may place a copy of the notice of
proposed assessment in an envelope and address the envelope to the licensed
facility at the address provided by the licensee to the Office of Mine Safety
and Licensing in its most recent license application.
b. The Office of Mine Safety and Licensing
shall affix adequate postage and place the sealed envelope in the United States
mail as certified mail return receipt requested.
c. The Office of Mine Safety and Licensing
shall maintain a record of each assessment and shall include the fact of
mailing and the return receipt, if received.
d. If the envelope is returned with an
endorsement showing failure of delivery, that fact shall be entered in the
record.
e. Service by certified
mail shall be complete upon delivery of the envelope, upon acceptance by any
person eighteen (18) years of age or older at the licensee address, upon
refusal to accept by any person at the licensee address, upon the United States
Postal Service's inability to deliver the assessment if properly addressed to
the licensee, or upon failure to claim the assessment prior to its return to
the Office of Mine Safety and Licensing by the United States Postal
Service.
f. The return receipt
shall be proof of acceptance, refusal, inability to deliver, or failure to
claim the assessment; or
2. The commissioner or the commissioner's
designee may cause the assessment, with necessary copies, to be transferred for
service to a person authorized by the Secretary who shall serve the assessment,
and the return thereon shall be proof of the time and manner of
service.
(4)
Options of the licensed facility issued a notice of proposed assessment.
(a) Waiver.
1. A licensed facility that is issued a
notice of proposed assessment may choose not to contest the
assessment.
2. Failure to file a
petition pursuant to paragraph (b) of this subsection shall be considered a
waiver.
3. A final order shall be
entered by the Mine Safety Review Commission finding that:
a. The licensed facility has waived its right
to an administrative hearing on the amount of the proposed
assessment;
b. The fact of the
violation cited in the noncompliance or closure order is deemed
admitted;
c. The proposed penalty
is due and payable within thirty (30) days after the entry of the final order;
and d.
d. The violation is a first,
second, third, or subsequent offense.
(b) Petition for administrative hearing. The
licensed facility may contest the proposed assessment and fact of violation by
submitting a petition for administrative hearing within thirty (30) days of the
receipt of the assessment in accordance with 825 KAR 1:020.
(5) This section of this
administrative regulation shall not be construed to impair or contravene the
Office of Mine Safety and Licensing's authority to seek sanctions pursuant to
Section 2 of this administrative regulation or to prevent the Mine Safety
Review Commission from imposing the sanctions in Section 2 of this
administrative regulation in addition to the monetary penalties assessed
pursuant to this section.
Section 4. Criteria for the Imposition and Enforcement of Sanctions Against Licensed Facilities For Failure to Comply with the Requirements for Reporting an Accident.
(1) General.
(a) If the superintendent, mine manager, mine
foreman, or a mine foreman's designee fails to comply with the reporting
requirements established in KRS 352.180(1), the Mine Safety Review Commission
may revoke, suspend or probate the mine license for a period of time to be
determined by the commission, pursuant to KRS 351.194(5), and in proportion to
the seriousness of the violations and the facts of the case.
(b) The commission shall also assess a civil
monetary penalty against the licensed premises in accordance with KRS 352.180(5).
(2) Point
system for computing the civil monetary penalty. The Mine Safety Review
Commission shall apply the point system described in this subsection to
evidence produced by the Office of Mine Safety and Licensing necessary to
determine the amount of civil monetary penalty to assess against the licensee
pursuant to this section. Points shall be assigned as follows:
(a) Appropriateness of the penalty.
1. Up to fifteen (15) points shall be
assigned for the size of the mine.
2. The size of the mine shall be based on the
tonnage produced from the mine in the previous calendar year, or in the case of
a mine opened or owned less than one (1) full calendar year, the tonnage
prorated to an annual basis.
3.
Points shall be assigned as follows:
a.
0-300,000 tons, zero (0) points;
b.
300,000-500,000 tons, five (5) points;
c. 500,000-1 million tons, ten (10)
points;
d. Over 1 million tons,
fifteen (15) points;
(b) History of previous violations.
1. Up to twenty (20) points shall be assigned
based on the history of violations at the mine, cited against the licensee
during the preceding twenty-four (24) month period.
2. Points shall be assigned as follows:
a. 1-5 previous violations, zero
points;
b. 6-10 previous
violations, five (5) points;
c.
11-20 previous violations, ten (10) points;
d. 21-30 previous violations, fifteen (15)
points;
e. Over 30 previous
violations, twenty (20) points;
(c) Negligence.
1. Up to twenty-five (25) points shall be
assigned based on the degree of negligence the licensee exhibited in failing to
report the accident.
2. Points
shall be assigned as follows:
a. No
negligence. There shall not be negligence on the part of the licensee if it
exercised diligence and could not have prevented the failure to comply with the
reporting requirements. Zero points shall be assigned for no
negligence;
b. Negligence. There
shall be negligence if the licensee has mitigating circumstances for its
failure to comply with the reporting requirements. Fifteen (15) points shall be
assigned for negligence; or
c.
Reckless disregard. There shall be reckless disregard if the licensee exhibits
the absence of the slightest degree of care in complying with the reporting
requirements. Twenty- five (25) points shall be assigned for reckless
disregard;
(d)
Gravity. Gravity shall be the severity of the accident and whether persons were
at risk of serious physical injury or death based on the failure to comply with
the reporting requirements.
1. A total of
thirty (30) points shall be assigned for gravity.
2. Points shall be assigned as follows:
a. Severity. Up to twenty (20) points shall
be assigned as follows for the severity of injuries:
(i) No serious physical injury occurred, zero
points;
(ii) A serious physical
injury occurred, ten (10) points; or
(iii) A fatality occurred, twenty (20)
points; and
b. Persons at
risk of serious physical injury or death. Up to ten (10) points shall be
assigned based on whether persons were at risk of serious physical injury or
death by the failure to comply with the reporting requirements, and points
shall be assigned as follows:
(i) Personnel
were not at risk, zero points; or
(ii) A person was at risk, ten (10)
points.
(3) Determination of amount of penalty. The
Mine Safety Review commission shall determine the amount of penalty by
converting the total number of points assigned under subsection (2) of this
section to a dollar amount, according to the schedule in the following table:
|
POINTS |
AMOUNT |
|
0 |
$10,000 |
|
5 |
$15,000 |
|
10 |
$20,000 |
|
15 |
$25,000 |
|
20 |
$30,000 |
|
25 |
$35,000 |
|
30 |
$40,000 |
|
35 |
$45,000 |
|
40 |
$50,000 |
|
45 |
$55,000 |
|
50 |
$60,000 |
|
55 |
$65,000 |
|
60 |
$70,000 |
|
65 |
$75,000 |
|
70 |
$80,000 |
|
75 |
$85,000 |
|
80 |
$90,000 |
|
85 |
$95,000 |
|
90 |
$100,000 |
(4)
Waiver of use of point system to determine civil penalty.
(a)
1. The
Mine Safety Review Commission may waive the use of the point system contained
in Section 4(2) of this administrative regulation to set the civil penalty, if
it determines that, taking into account exceptional factors present in the
particular case, the penalty is demonstrably unjust.
2. The basis for every waiver shall be fully
explained and documented in the record of the case.
(b)
1. If
the commission waives the use of the point system, it shall use the criteria
established in KRS 351.194(7) to determine the appropriate penalty.
2. If the commission has elected to waive the
use of the point system, it shall give a written explanation for the basis for
the assessment made in its Final Order.
Section 5. Incorporation by Reference.
(1) "Notice of Proposed
Assessment," July 12, 2006, OMSL Form No. NPA-1, is incorporated by
reference.
(2) This material may be
inspected, copied, or obtained, subject to applicable copyright law, at the
Office of Mine Safety and Licensing, 300 Sower Boulevard, Frankfort, Kentucky
40601, Monday through Friday, 8 a.m. to 4:30 p.m.
STATUTORY AUTHORITY: KRS 351.025(2), 351.070(13), 351.070(15)
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