Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO: KRS Chapter 13B, 351.025(1), (2), (5), 351.070(15),
351.1041(1), (7), (8), 351.105(11), 351.120, 351.184, 351.194.
NECESSITY, FUNCTION, AND CONFORMITY: KRS 351.194(1) and KRS 351.025(5) require the Mine Safety Review Commission to promulgate
administrative regulations to establish administrative hearing and review
procedures in accordance with KRS Chapter 13B. This administrative regulation
supplements the provisions of KRS Chapter 13B by establishing procedures for
the filing, evaluation, and disposition of complaints and petitions of
appeal.
Section 1. The provisions of
KRS 13B.010 through 13B.170 and this administrative regulation shall govern all
hearings conducted pursuant to KRS 351.1041(1)(a) and KRS 351.025(5).
Section 2. Practice Before the Commission.
(1) The hearing shall be adversarial and
presided over by a hearing officer assigned by the commission, which may
include a member of the commission or an independent hearing officer, who shall
conduct the hearing in accordance with KRS 13B.050 to 13B.130. If a complaint
is filed by the Department for Natural Resources, the charges and evidence
against the respondent shall be filed by an attorney from the Office of Legal
Services. If a petition of appeal is filed by an individual or licensee, an
attorney for the Office of Legal Services shall represent the Department for
Natural Resources.
(2) An
individual may file a petition of appeal or a response to a complaint pro se.
In accordance with S.C.R. 3.020, all other petitioners or respondents shall be
represented by an attorney admitted to practice law in the Commonwealth of
Kentucky.
(3) Entry of Appearance.
A representative of a party shall enter an appearance in a proceeding under
this administrative regulation by:
(a) Signing
the first document filed with the commission on behalf of a party;
(b) Filing a written entry of appearance with
the commission; or
(c) With the
permission of the hearing officer, orally entering an appearance in open
hearing.
(4) Withdrawal
of appearance. A representative desiring to withdraw his appearance shall file
a motion with the commission. The motion to withdraw may, in the discretion of
the hearing officer, be denied if necessary to avoid undue delay or prejudice
to the rights of a party.
Section
3. Parties, Intervenors, and Amici Curiae.
(1) Party status. For the purposes of KRS 13B.140(1), the agency named as a party for an appeal of a final disposition
from the Mine Safety Review Commission is the Division of Mine
Safety.
(2) Intervention. The
procedure for intervention shall be governed by the provisions of KRS 13B.060.
In denying a motion to intervene, the hearing officer may permit the movant to
participate in the proceeding as amicus curiae.
(3) Participation as amicus curiae. A person
may move to participate as amicus curiae in a proceeding before the commission.
Participation as amicus curiae shall not be a matter of right, but of the sound
discretion of the hearing officer. A motion for participation as amicus curiae
shall set forth the interest of the movant and show that granting the motion
will not unduly delay or prejudice the adjudication of the issues. If the
hearing officer permits amicus curiae participation, his order shall specify
the schedule for filing and replying to the amicus curiae memorandum, brief, or
other pleading. The movant may attach its memorandum, brief, or other pleading
to its motion for participation as amicus curiae.
Section 4. Commencement of Action or Petition
of Appeal.
(1) An action shall be instituted
by the Department for Natural Resources by filing with the commission a
verified complaint which shall contain the following information:
(a) The name, address, and license number, or
certification identification of the alleged violator;
(b) If the alleged violator is a corporation,
the address and license number of the corporation and the name and address of
the process agent;
(c) The section
of the statutes or administrative regulations alleged to have been violated and
the minimum and maximum penalties provided for the violation;
(d) A statement of the factual basis for the
department's action and a statement of issues involved, in sufficient detail to
give the parties reasonable opportunity to prepare evidence and
arguments;
(e) The history of the
alleged violator's previously-adjudicated violations before the commission or
its predecessor; and
(f) Any
supporting documents addressed in the statement.
(2)
(a) The
following individuals or licensed facility may file a petition for review of
the suspension issued, certification denied, application rejected or denied, or
penalty assessed:
1. Any individual whose
certification issued pursuant to KRS 351.120(1) has been suspended by the
Commissioner of the Department for Natural Resources pursuant to KRS 351.120(12) for violation of drug or alcohol-free status or refusal to submit
to a drug or alcohol test as authorized by statute;
2. Any applicant for certification as a new
miner or initial applicant for all other job certifications authorized by
statute who is denied certification by the Division of Mine Safety due to the
results of drug and alcohol testing pursuant to KRS 351.184;
3. Any licensee or license applicant whose
application for certification of a drug-free workplace program has been
rejected or denied pursuant to 805 KAR 11:010 or 805 KAR 11:020; or
4. Any licensed facility against whom
penalties have been assessed by the Commissioner of the Department for Natural
Resources pursuant to KRS 351.070(15).
(b)
1. The
petition of appeal shall be filed within thirty (30) days of service of the
notice of suspension by the Commissioner of the Department for Natural
Resources, the notice of results of testing resulting in denial of
certification by the Division of Mine Safety, the notification of rejection or
denial of the application for certification of a drug-free work program by the
Division of Mine Safety, or the notice of assessment of penalties by the
Commissioner of the Department for Natural Resources.
2. The petition of appeal shall include:
a. A statement of the law and facts in issue
in regard to the suspension or denial of certification, rejection or denial of
the application, or assessment of penalties; and
b. A statement of the petitioner's position
as to the law and facts and a recitation of the relief sought by the
petitioner.
(3)
(a) For
any person seeking appeal from (2) above or any other authorized appeal of
action by the Division of Mine Safety, the complaint or petition of appeal
shall be filed with the Mine Safety Review Commission, 300 Sower Boulevard,
Second Floor, 40601, Frankfort, Kentucky. At the time of filing, the complaint
or petition of appeal shall be assigned a case number, which shall be used in
the future proceedings of the matter.
(b) Timely filing. A petition of appeal shall
be deemed timely filed when it is received by the commission within the time
specified for filing except that a petition of appeal shall be deemed timely
filed if it has been transmitted by United States registered or certified mail,
or by other recognized mail carriers, with the date the mail carrier received
the petition from the sender noted by the mail carrier on the outside of the
container or envelope used for transmitting the petition, within the time
allowed for filing.
Section 5. Probable Cause Hearing; Notice of
Hearing.
(1) Upon receipt of a verified
complaint filed by the Department for Natural Resources, the commission shall
place the complaint on its agenda for a probable cause hearing to be reviewed
at the next regularly-scheduled meeting of the commission, or as soon as
practicable.
(a) The probable cause hearing
shall not be adversarial in nature. Testimonial evidence shall not be taken.
The determination of probable cause shall be based upon the content of the
verified complaint alone.
(b) If
the commission finds that probable cause exists, it shall issue an order in
accordance with KRS 351.194(3).
(c)
The commission shall dismiss a complaint if it does not find probable cause
that a violation has occurred. The dismissal shall be without prejudice. The
commission shall notify the Commissioner and attorney of record for the Office
of Legal Services of its decision.
(2) If an order setting the matter for
hearing is issued by the commission, it shall mail a notice of hearing to the
following:
(a) The Commissioner of the
Department for Natural Resources;
(b) The attorney of record for the Office of
Legal Services; and
(c) The
respondent named in the verified complaint at the address shown in the
complaint.
(3) The
notice of hearing shall be sent by certified mail, return receipt requested, in
compliance with KRS 13B.050.
Section
6. Notice of Hearing Regarding Petition of Appeal.
(1) Upon receipt of a petition of appeal, the
commission shall set the matter for hearing unless the petition is deemed by
the commission to be:
(a) Not well grounded in
fact or warranted by existing law or a good faith argument for the extension of
same;
(b) Filed for an improper
purpose; or
(c)
Frivolous.
(2) The
commission shall mail a notice of hearing to the following:
(a) The petitioner or counsel for the
petitioner, if the petitioner is represented by counsel; and
(b) The General Counsel of the Office of
Legal Services.
(3) The
notice of hearing shall be sent by mail, return receipt requested, in
compliance with KRS 13B.050.
Section
7. Answer of the Respondent.
(1)
The respondent shall file a response to the complaint with the commission, with
service on the attorney of record for the Office of Legal Services, within
twenty (20) days of receiving the notice of hearing. The response shall:
(a) Set forth the defense to the
complaint;
(b) State mitigating
circumstances; and
(c)
1. Admit or deny each assertion in the
complaint; or
2. If appropriate,
state that the respondent is without knowledge or information sufficient to
form a belief as to the truth of an assertion. This statement shall be treated
as a denial.
(2) The Office of Legal Services shall file a
response to a petition for appeal with the commission, with service on the
petitioner, within twenty (20) days of service of the notice of hearing. The
response shall:
(a) Set forth the defenses to
the petition; and
(b)
1. Admit or deny each factual assertion in
the petition; or
2. If appropriate,
state that the respondent to the petition of appeal is without knowledge or
information sufficient to form a belief as to the truth of the assertion. This
statement shall be treated as a denial.
Section 8. General Requirements
for Pleadings and Other Documents.
(1) Where
to file. The original copy of all documents shall be filed with the commission.
Documents filed with the commission shall be addressed to the general counsel
and mailed or delivered to the Mine Safety Review Commission, 300 Sower
Boulevard, Second Floor, Frankfort, Kentucky 40601. Copies shall be sent to all
parties in a case, and to the hearing officer assigned to the case.
(a) The filing of complaints, petitions of
appeal, or other initiating documents shall be by personal delivery, including
courier service, or by registered or certified mail, return receipt
requested.
(b) Subsequent documents
filed with the commission may be filed by first class mail, express mail,
facsimile transmission, or personal delivery. Express mail includes delivery by
a third-party commercial carrier.
(c) Filing by personal delivery, mail, or
facsimile transmission, is effective upon receipt, except as otherwise
permitted in Section 4(3)(a) of this administrative regulation.
(d) A document filed by facsimile
transmission shall be placed in the United States mail on the same day as
transmission.
(2)
Required information.
(a) Documents shall be
legible and shall clearly identify the filing party by name on the cover
page.
(b) Documents filed with the
commission shall be accompanied by a statement setting forth the date and
manner of service.
(c) Documents
shall include the assigned docket number, page numbers, and the filing person's
address and telephone number. Written notice of a change in the address or
telephone number shall be given promptly to the commission, the hearing
officer, and all other parties.
(3) Number of copies. The original document
and four (4) copies shall be filed with the commission.
Section 9. Computation of Time. In computing
a period of time prescribed by this administrative regulation, the day from
which the designated period begins to run shall not be included. The last day
of the period shall be included unless it is a Saturday, Sunday, or state
holiday, in which event the period runs until the end of the next business
day.
Section 10. Extensions of
Time.
(1) The time for filing or serving a
document may be extended for good cause shown. A motion requesting an extension
of time shall be received no later than three (3) days prior to the expiration
of the time allowed for filing or serving the document.
(2) An extension of time may be granted even
though the request was filed after the designated time for filing has expired
if:
(a) Exigent circumstances exist;
and
(b) The requesting party shows,
in writing, the reason for the party's failure to make the request before the
prescribed time expired.
Section 11. Motions.
(1) An application for an order shall be by
motion which, unless made during a hearing or a prehearing conference, shall be
made in writing and shall set forth the relief or order sought.
(2) A party opposing a written motion shall
file a statement in opposition within ten (10) calendar days after service upon
the party. Unless otherwise ordered, oral argument on motions shall not be
heard.
Section 12.
Withdrawal of a Pleading. A party may withdraw a pleading at any stage of a
proceeding with the approval of the commission or a hearing officer.
Section 13. Consolidation of Proceedings. The
commission or a hearing officer may, upon their own or a party's motion, order
the consolidation of proceedings that involve similar issues.
Section 14. Hearing Sites. Each case shall be
assigned a hearing site by order of the Hearing Officer giving due regard to:
(1) The convenience and necessity of the
parties or their representatives and witnesses;
(2) The availability of suitable hearing
facilities; and
(3) Other relevant
factors.
Section 15.
Prehearing Conferences. Prehearing conferences shall be conducted in accordance
with KRS 13B.070.
Section 16.
Powers of Hearing Officers. A hearing officer is empowered to act in accordance
with the provisions of KRS Chapter 13B.
Section
17. Discovery. Discovery shall be conducted in accordance with KRS 13B.080(3).
Section 18. Failure to
Cooperate in Discovery. Upon the failure of any person, including a party, to
respond to a discovery request, or upon an objection to such a request, the
party seeking discovery may file a motion with the hearing officer requesting
an order compelling discovery pursuant to KRS 13B.080(3). For good cause shown
the hearing officer may excuse an objecting party from complying with the
request.
Section 19. Subpoenas.
(1) The commission and its hearing officers
may issue subpoenas, on their own motion or on the oral or written application
of a party, requiring the attendance of witnesses and the production of
documents or physical evidence.
(2)
A subpoena may be served by a person at least eighteen (18) years of age. A
subpoena may also be served by registered or certified mail, return receipt
requested, with risk of delivery on the serving party.
(3) A copy of the subpoena bearing a
certificate of service shall be filed with the commission.
(4) A subpoena shall be enforced in
accordance with KRS 13B.080(3).
(5)
If a person fails to comply with an order to testify or with a subpoena issued
by the commission, the commission may initiate proceedings for the enforcement
of the subpoena pursuant to KRS 13B.080(3).
(6) The person requesting the subpoenas shall
bear the cost of serving the subpoenas. The commission shall bear the cost of
witnesses subpoenaed on its behalf.
Section 20. Continuance; Proceedings in
Absentia. The commission shall not postpone a case which has been scheduled for
hearing, absent good cause. A request for a continuance may be considered if
communicated to the commission staff reasonably in advance of the scheduled
hearing date and based upon good cause. The decision whether to grant a
continuance shall be made by the hearing officer.
Section 21. Settlement by Informal
Proceedings.
(1) In accordance with KRS 13B.070(3), the commission, through counsel may, at any time during the action,
enter into informal proceedings with the respondent for the purpose of
appropriately dispensing with the matter.
(2) An agreed order of settlement shall be
signed by the parties and filed with the commission for final
decision.
(3) The commission may
employ mediation as a method of resolving the matter informally.
Section 22. Rules of Evidence.
(1) Receipt of evidence shall be governed by
the provisions of KRS 351.194(3) and 13B.090.
(2) Documentary evidence may be admitted in
the form of copies or excerpts, and need be authenticated only to the extent
that the commission is satisfied of its genuineness and accuracy.
(3) A tangible item may be received into
evidence without the necessity of establishing a technical legal chain of
custody if the board is satisfied that the item is:
(a) What it is represented to be;
and
(b) In substantially the same
condition as it was at the time of the events under consideration.
(4) The commission shall exclude
evidence it considers to be unreliable, incompetent, irrelevant, immaterial, or
unduly repetitious.
Section
23. Retention of Exhibits. Retention of exhibits shall be in
accordance with KRS 13B.130. The commission or the hearing officer may permit
the withdrawal of original exhibits:
(1) Prior
to the conclusion of the hearing;
(2) Upon request and after notice to the
parties; and
(3) If true copies are
substituted, if practical, for the originals.
Section 24. Proposed findings, conclusions,
and orders shall be made in accordance with KRS 13B.090.
Section 25. The commission shall make a
decision that constitutes the final disposition of the proceedings in
accordance with KRS 13B.120. If a decision is announced orally it shall be
reduced to writing. An order by the commission approving a settlement proposal
is a final decision of the commission.
Section
26. Ex Parte Communications. Prohibited ex parte communications
shall be in accordance with KRS 13B.100.
STATUTORY AUTHORITY: KRS 351.194(1), KRS 351.025(5).