401 KAR 100:010. General administrative hearing practice provisions

      Section 1. Applicability. This administrative regulation shall govern the conduct by the cabinet of all administrative hearings authorized by KRS Chapter 146 relating to wild rivers, KRS Chapter 149 relating to timber harvesting, KRS Chapter 151 relating to water resources, KRS Chapter 223 relating to water plant operators and water well drillers, and KRS Chapter 224 relating generally to environmental protection, including those administrative hearings pending at the time this administrative regulation becomes effective. This administrative regulation governs administrative hearings authorized by those chapters on violations of those chapters and administrative regulations promulgated pursuant thereto, and on orders and final determinations of the cabinet made under those chapters and the administrative regulations promulgated pursuant thereto.

 

      Section 2. Construction. This administrative regulation shall be construed to achieve just, timely and inexpensive determinations of all questions appropriate for determination pursuant to Section 1 of this administrative regulation.

 

      Section 3. General Provisions for Conducting Administrative Hearings. (1)(a) Hearings generally. All administrative hearings shall be de novo as to all issues of fact and law, except those findings previously adjudicated by a final order of the secretary shall be binding against any party to the administrative hearing culminating in the final order. A party to an administrative hearing may be represented by counsel, make oral or written argument, offer testimony, and cross-examine witnesses. An independent hearing officer shall preside at the administrative hearing, shall keep order, and shall conduct the administrative hearing in accordance with reasonable administrative practice and Section 2 of this administrative regulation. Oaths and affirmations shall be administered by the hearing officer or court reporter. The provisions of 400 KAR 1:030 relating to service of process, computation of time and filing of documents, and 400 KAR 1:040 relating to administrative discovery shall apply to cases before the cabinet, consistent with KRS Chapters 146, 149, 151, 223, and 224 and the administrative regulations promulgated pursuant thereto. The hearing officer shall permit any party to represent that party's interests, except a corporate party shall only be represented by an attorney licensed to practice law in the Commonwealth of Kentucky. The failure of a corporate party to appear by counsel, without good cause, shall be grounds for default.

      (b) Evidence. Irrelevant, immaterial, or unduly repetitious evidence shall be excluded. When necessary to ascertain facts not reasonably susceptible to proof under rules of evidence, evidence not admissible thereunder may be admitted, except where designated as confidential by statute, if it is of a type commonly relied upon by reasonable and prudent persons in the conduct of their affairs. Hearing officers shall give effect to the rules of privilege recognized by law. Objections 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. 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 by the hearing officer of generally recognized technical or scientific facts within the cabinet's specialized knowledge. Parties shall be notified either before or during the administrative hearing, or by reference in 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 by the hearing officer in the evaluation of the evidence.

      (2) Hearing officer's duties. The hearing officer shall in the hearing officer's discretion:

      (a) Administer oaths and affirmations;

      (b) Issue subpoenas in accordance with Section 9 of this administrative regulation;

      (c) Issue appropriate orders relating to discovery in accordance with 400 KAR 1:040;

      (d) Rule on procedural requests or similar matters;

      (e) Hold prehearing conferences for settlement or simplification of the issues;

      (f) Regulate the course of the administrative hearing;

      (g) Rule on offers of proof and receive relevant evidence;

      (h) Take any other action authorized by this administrative regulation, KRS Chapters 146, 149, 151, 223, 224 and the administrative regulations promulgated pursuant thereto; and

      (i) Make or recommend decisions or reports in accordance with KRS Chapters 146, 149, 151, 223, 224 and the administrative regulations promulgated pursuant thereto.

      (3) Prehearing conference. A hearing officer may order a prehearing conference:

      (a) To simplify and clarify issues;

      (b) To receive stipulations and admissions;

      (c) To explore the possibility of agreement to dispose of any of the issues in dispute; and

      (d) For any other purposes as may be appropriate.

      (4) Summary disposition. At any time after a proceeding has begun, a party may move for a summary disposition of the whole or part of a case, in which event the following procedure shall apply:

      (a) The moving party shall verify any allegations of fact with supporting affidavits, unless the moving party is relying upon depositions, answers to interrogatories, admissions, or documents produced upon request to verify such allegations.

      (b) A hearing officer may grant a motion and render a report and recommended order to the secretary under this section if the record, including the pleadings, depositions, answers to interrogatories, admissions, and affidavits, shows that:

      1. There is no disputed issue as to any material fact; and

      2. The moving party is entitled to a summary disposition as a matter of law.

      (c) If a motion for a summary disposition is not granted for the entire case or for all the relief requested and an evidentiary hearing on some or all of the issues is necessary, the hearing officer shall, if practicable, and upon examination of all relevant documents and evidence before him, ascertain what material facts are actually and in good faith controverted. The hearing officer shall issue an interim report specifying the facts that appear without substantial controversy and direct further proceedings as deemed appropriate.

      (5) Hearing officer's report.

      (a) The hearing officer shall, within thirty (30) days of the close of the administrative hearing record, make a report and recommended order to the secretary. The report and recommended order shall be based on a preponderance of the evidence appearing in the record as a whole and shall contain 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. If granted by the secretary, all parties shall be notified at the time of the granting of the extension. The hearing officer's report and recommended order shall be mailed, postage prepaid, to all parties and their attorneys of record. The parties may file exceptions and responses to the exceptions as provided under KRS 151.184 and 224.10-440. There shall be no other or further submissions.

      (b) The hearing officer shall recommend the amount of a civil penalty based exclusively on the record of the administrative hearing. The hearing officer may compute the amount of the penalty to be assessed irrespective of any computation offered by any party. The hearing officer shall state with particularity the reasons, supported by the record of the hearing, for the penalty recommended in the report.

      (6) Secretary's order.

      (a) The secretary shall consider the report and recommended order, any exceptions filed, and any responses to exceptions, and pass upon the case within a reasonable time. The secretary may remand the matter to the hearing officer, adopt the report and recommended order of the hearing officer as a final order, or issue his own final order.

      (b) The final order of the secretary shall be mailed postage prepaid to parties and their attorneys of record.

      (c) A final order of the secretary shall be based on substantial evidence appearing in the record as a whole and shall set forth the decision of the secretary and the facts and law upon which the decision is based.

 

      Section 4. Standards of Conduct. (1) Ex parte communications.

      (a) Prohibition. Except to the extent required for the disposition of ex parte matters as authorized by law, there shall be no communication concerning the merits of a proceeding between a party to the proceeding or a person interested in the proceeding or a representative of a party or interested person and Office of Administrative Hearings personnel involved or who may reasonably be expected to become involved in the decision making process of an administrative hearing, unless the communication, if oral, is made in the presence of all other parties or their representatives, or, if written, is furnished to all other parties. Communications concerning case status or advice concerning compliance with procedural requirements are not prohibited unless the area of inquiry is in fact an area of controversy in the administrative hearing. Oral communications made in violation of this administrative regulation shall be reduced to writing in a memorandum by the person receiving the communication and shall be included in the record. Written communications made in violation of this administrative regulation shall be included in the record. Copies of the memorandum or communication shall be provided to all parties, who shall be given an opportunity to respond in writing.

      (b) Sanctions. The presiding hearing officer in a case, in which a prohibited communication has been knowingly made, may impose appropriate sanctions on the offending person or persons, which may include requiring an offending party to show cause why the offending party's claim, motion, or interest should not be dismissed, denied, or otherwise adversely affected; and invoking such sanctions against other offending persons as appropriate.

      (2) Disqualification. The hearing officer shall withdraw from a case if he deems himself disqualified under the recognized canons of judicial ethics. If prior to a decision of the hearing officer an affidavit of personal bias or disqualification with substantiating facts is filed, and the hearing officer concerned does not withdraw, the secretary shall determine the matter of disqualification.

 

      Section 5. Service. (1) Documents required to be served, including administrative summonses, shall be served by one (1) of the following methods:

      (a) The cabinet shall place a copy of the document to be served in an envelope, and address the envelope to the person to be served at the address set forth in the caption or at the address set forth in written instructions furnished by the initiating party. The cabinet shall affix adequate postage and place the sealed envelope in the United States mail as certified mail return receipt requested. The cabinet shall forthwith enter the fact of mailing in the record and make a similar entry when the return receipt is received. If the envelope is returned with an endorsement showing failure of delivery, that fact shall be entered in the record. The cabinet shall file the return receipt or returned envelope in the record. Service by certified mail is complete upon delivery of the envelope or as provided by subsection (2) of this section. The return receipt shall be proof of the time, place and manner of service. To the extent the United States postal regulations allow authorized representatives of local, state, or federal governmental offices to accept and sign for "addressee only" mail, signature by such authorized representative shall constitute service on the addressee; or

      (b) The cabinet shall cause the document, with necessary copies, to be transferred for service to a person authorized by the secretary or by a statute to deliver them, or to a person authorized to serve an action in a court of law who shall serve the documents, and the return endorsed thereon shall be proof of the time and manner of service; or

      (c) Service shall be made upon a person issued a permit or registration by the cabinet, upon a person specified as an operator in the permit or registration application, or upon a person certified by the cabinet or applying for certification, by placing, in the United States mail as certified mail, return receipt requested, a copy of the document directed to the named agent for service or the permittee or the operator specified in the permit or registration application (at the address specified in the permit, at the permanent address for the permittee or operator specified in the permit or registration application, or at any new address that has been specified in writing by the permittee or operator), or the certified operator or the person requesting certification (at the address specified in the certification, at the permanent address for the certified operator specified in the certification request, or at any new address that has been specified in writing by the operator).

      (2) Service shall be effective upon acceptance of the document by any person eighteen (18) years of age or older at the permanent address, upon refusal to accept the document by any person at the permanent address, upon the United States Postal Service's inability to deliver the document if properly addressed pursuant to subsection (1)(a) or (c) of this section, or upon failure to claim the document prior to its return to the cabinet by the United States Postal Service. The return receipt shall be proof of acceptance, refusal, inability to deliver, or failure to claim the document.

      (3) Any other method of service authorized by statute, administrative regulation, or the civil rules for an action in a court of law shall be supplemental to and shall be accepted as an alternative to any of the methods of service specified in this section.

      (4) A copy of each document filed in a proceeding pending before the Office of Administrative Hearings shall be served by the filing party on all other parties in the case. In all cases where a party is represented by an attorney, such attorney will be recognized as fully controlling the case. Service of any document relating to the proceeding shall be made upon the attorney of record in addition to any other service specifically required by law or by order of the cabinet.

      (5) Service shall be made upon the cabinet by serving the Executive Director of the Office of Legal Services and shall be effective upon receipt by the Office of Legal Services.

 

      Section 6. Administrative Summons and Public Notice of Hearing. Upon receipt of an initiating document, the Office of Administrative Hearings shall promptly serve in accordance with 400 KAR 1:030 and Section 5 of this administrative regulation, a copy of the document upon all parties designated to be served along with an administrative summons notifying the responding party that an initiating document has been filed against him and unless a written defense is timely served, action adverse to his interests may be taken. If appropriate and at the direction of the hearing officer, the administrative summons may also designate that a prehearing conference or administrative hearing shall be held along with the date, time and place of the prehearing conference or administrative hearing. An administrative summons shall also include a statement of the legal authority for the hearing and reference to the statutes and administrative regulations involved.

 

      Section 7. Filing and Retention of Documents. (1) Filing of documents. A document is considered filed in the Office of Administrative Hearings when the document is received by the office.

      (2) Retention of documents. All documents, books, records, papers, etc., received in evidence in a hearing or submitted for the record in a proceeding before the cabinet will be retained with the official record of the proceedings. The withdrawal of original documents may be permitted while the case is pending upon terms and conditions as may be directed by the hearing officer. When an order of the secretary has become final, the hearing officer in his discretion may, upon request and after notice to the other parties, authorize the withdrawal of original exhibits or any part thereof by the authorized party. The substitution of true copies of exhibits or any part thereof may be required by the hearing officer in his discretion as a condition of granting permission for withdrawal.

      (3) Record address. A person who files a document for the record in connection with an administrative hearing before the Office of Administrative Hearings shall at the time of initial filing in the matter state his mailing address and telephone number. Thereafter, he shall promptly inform the office of a change in mailing address or telephone number, giving the file number relating to all matters in which he has made a filing. The successors of the person shall likewise promptly inform the Office of Administrative Hearings of their interest in the matters and state their addresses and telephone numbers. If a person fails to furnish a record address and telephone number as required, that person will not be entitled to notice in connection with the proceedings.

      (4) Transcripts. All administrative hearings will be recorded verbatim and transcripts thereof shall be made when requested by interested parties. Costs of transcripts shall be borne by the requesting parties. Fees for transcripts prepared from recordings by Office of Administrative Hearings employees will be at rates which cover the cost of staff time, machine use and materials. If the reporting is done pursuant to a contract between the reporter and the cabinet, costs of transcripts will be at rates established by the contract.

 

      Section 8. Time. (1) Computation of time for the initiation of an administrative proceeding or the subsequent filing of a document shall be in accordance with KRS 446.030 and 400 KAR 1:030.

      (2) The time for filing or serving any document may be extended by a hearing officer except for the time for filing a petition for an administrative hearing under KRS 151.182(2) or 224.10-420(2) or if an extension is contrary to law or administrative regulation.

      (3) A request for an extension of time shall be filed within the time allowed for filing or serving the document.

 

      Section 9. Subpoenas. At the request of any party to an administrative hearing, the Office of Administrative Hearings shall issue subpoenas requiring the attendance of witnesses or production of books, papers, documents, or tangible things designated therein, or both, at administrative hearings or at the taking of depositions. Subpoenas shall be issued on a form approved by the office. A subpoena may be served by a person who is not less than eighteen (18) years of age. The original subpoena bearing a certificate of service shall be filed with the Office of Administrative Hearings or the subpoena may be served by certified mail, return receipt requested. The return receipt if signed by the addressee or his authorized agent shall constitute proof of service of the subpoena.

 

      Section 10. Location of Administrative Hearings. Administrative hearings shall be held in Frankfort at the location designated by the hearing officer unless an alternative location is agreed upon by the parties or authorized by KRS 224.40-310(5)(e).

 

      Section 11. Intervention and Consolidation. (1) Who may file. A person may petition in writing for leave to intervene at any stage of a proceeding. A petitioner shall set forth a statement describing the interest of the petitioner and, if required, a showing of why the interest is or may be adversely affected.

      (2) Criteria to intervene.

      (a) The hearing officer shall grant intervention if the petitioner:

      1. Had a statutory right to initiate the proceeding in which he wishes to intervene; or

      2. Has an interest which is or may be adversely affected by the outcome of the proceeding.

      (b) If the criteria set forth in paragraph (a) of this subsection do not apply, the hearing officer shall consider the following in determining whether intervention is appropriate:

      1. The nature of the issues;

      2. The adequacy of representation of petitioner's interest which is provided by the existing parties to the proceeding;

      3. The ability of the petitioner to present relevant evidence and argument; and

      4. The effect of intervention on the cabinet's implementation of its statutory mandate.

      (3) Effect of ruling. A person granted leave to intervene in a proceeding may participate in the proceeding as a full party or, if desired, in a limited capacity. If an intervenor wishes to participate in a limited capacity, the extent and the terms of the participation shall be at the discretion of the hearing officer.

      (4) Consolidation. When proceedings involving the same parties or a common question of law or fact are pending before the cabinet, the proceedings are subject to consolidation pursuant to a motion by a party or at the initiative of the hearing officer.

 

      Section 12. Administrative Hearings Initiated by the Cabinet. (1) Criteria for filing. The cabinet may initiate an administrative hearing and may seek the remedies identified in subsection (2) of this section whenever:

      (a) It has reason to believe that a violation of KRS Chapters 146, 149, 151, 223, 224, the administrative regulations promulgated pursuant thereto, or a permit, registration or certification condition has occurred or is occurring; or

      (b) The cabinet has reason to believe remedies should be sought or an order should be entered against any person to protect the environment or the health and safety of the public.

      (2) Remedies. In an administrative hearing initiated by the cabinet, the cabinet may seek a combination of the following:

      (a) Permit revocation, termination, denial, modification or suspension;

      (b) Bond and other financial assurance forfeiture;

      (c) Civil penalties;

      (d) A determination, where expressly authorized by statute, that a person or persons shall not be eligible to receive another permit or conduct future operations;

      (e) Cost recovery where expressly authorized by statute; or

      (f) Any other relief to which it may be entitled by KRS Chapters 146, 149, 151, 223, 224 or the administrative regulations promulgated pursuant thereto.

      (3) Procedures for administrative hearings initiated by the cabinet.

      (a) Filing of administrative complaint. Contents. The cabinet shall initiate an administrative hearing by filing an administrative complaint with the Office of Administrative Hearings incorporating the following for each claim for relief:

      1. A statement of facts entitling the cabinet to administrative relief; and

      2. A request for specific relief.

      (b) Answer or responsive pleading. The person named in an administrative complaint shall file with the Office of Administrative Hearings an answer or responsive pleading within thirty (30) days of service of the administrative complaint which shall contain:

      1. A statement specifically admitting or denying the facts stated in the administrative complaint or amended administrative complaint; and

      2. Any defenses to each claim for relief.

      (c) Amendments. An administrative complaint may be amended once as a matter of right prior to the filing of an answer and thereafter by leave of the hearing officer upon proper motion. The person named in the administrative complaint shall have ten (10) days from the filing of an administrative complaint amended as a matter of right or the time remaining for filing an answer to the original complaint, whichever is longer, to file an answer or responsive pleading. If the hearing officer grants a motion to amend the administrative complaint, the time for an answer to be filed shall be set forth in the order granting the motion.

      (4) Burden of proof. If the cabinet initiates an administrative hearing, the cabinet shall bear the ultimate burden of persuasion. The responding party shall have the burden of persuasion to establish an affirmative defense. A responding party claiming an exemption shall have the burden of persuasion to establish qualification for the exemption.

      (5) Default.

      (a) In a proceeding where the person against whom the administrative complaint is filed fails to timely comply with a prehearing order of a hearing officer, the hearing officer may at his discretion or upon motion issue an order to show cause why the person should not be deemed to have waived his right to an administrative hearing and why a report and recommended order adverse to the person shall not be referred to the secretary.

      (b) If the order to show cause is not satisfied as required, the hearing officer shall recommend to the secretary the entry of a final order in conformity with the relief requested by the cabinet in its administrative complaint.

      (c) If the person against whom the administrative complaint is filed fails to appear at an administrative hearing, the person shall be deemed to have waived his right to a hearing and the hearing officer shall recommend to the secretary the entry of a final order in conformity with the relief requested by the cabinet in its administrative complaint.

 

      Section 13. Review of Cabinet Orders and Final Determinations. (1) Who may file. A person who considers himself aggrieved by an order or final determination of the cabinet may file a petition for review of the order or final determination pursuant to this section. This section also applies to petitions for review of a draft permit for construction or expansion of a waste disposal facility, made pursuant to KRS 224.40-310(6), when the expansion results in substantial additional capacity.

      (2) The petition for review shall be filed with the Office of Administrative Hearings within thirty (30) days after the petitioner has had actual notice of the order or final determination complained of, or could reasonably have had notice. Failure to timely file a petition for review shall constitute a waiver of an administrative hearing and the petition shall be dismissed.

      (3) Contents of petition. The petition for review shall contain:

      (a) A statement of the facts entitling the one requesting review to administrative relief;

      (b) An explanation of each specific alleged error in the cabinet's determination;

      (c) A request for specific relief;

      (d) If the petition challenges an order or final determination on a permit, the name of the permittee and the permit number; and

      (e) Other relevant information.

      (4) Answer or responsive pleading. The respondents shall file an answer or other responsive pleading within thirty (30) days of service of the petition specifically admitting or denying facts or alleged errors stated in the petition and setting forth any other matters to be considered on review.

      (5) Amended petition. A petition may be amended once as a matter of right prior to the filing of an answer and thereafter by leave of the hearing officer upon proper motion. The respondents shall have ten (10) days from the filing of a petition amended as a matter of right or the time remaining for filing an answer to the original petition, whichever is longer, to file an answer. If the hearing officer grants a motion to amend a petition, the time for an answer to be filed shall be set forth in the order granting the motion.

      (6) Notice of hearing. The parties shall be given written notice of the time and place of the administrative hearing at least twenty-one (21) days prior to the hearing unless the twenty-one (21) days period is waived in writing.

      (7) Effect of filing. The filing of a petition for review shall not stay the effectiveness of the cabinet's determination pending completion of administrative review.

      (8) Default.

      (a) If the petitioner fails to timely comply with a prehearing order of a hearing officer, the hearing officer may at his discretion or upon motion issue an order to show cause why that person should not be deemed to have waived his right to an administrative hearing and why his petition should not be dismissed.

      (b) If the order to show cause is not satisfied as required, the hearing officer shall recommend to the secretary the entry of a final order finding that the petitioner has waived his right to an administrative hearing and dismissing the petition.

      (c) If the person requesting the administrative hearing fails to appear at a hearing, the person shall be deemed to have waived his right to a hearing and the hearing officer shall recommend to the secretary the entry of a final order finding that the person has waived the right to an administrative hearing and dismissing the petition.

      (9) Burden of proof. The petitioner shall bear the burden of going forward to establish a prima facie case and the ultimate burden of persuasion as to the requested relief.

 

      Section 14. Procedures for Abate or Alleviate Orders. (1) In general. If pursuant to KRS 224.10-410, the secretary issues an order to abate or alleviate, the cabinet shall provide the person to whom the order was issued an opportunity to be heard. The holding of an administrative hearing pursuant to this section shall not operate to terminate or stay the order or the affirmative obligations imposed on a person by the order, unless the hearing officer shall find on the record that the obligations have been met or that the order was improper or inappropriate.

      (2) Notice.

      (a) Upon issuance of an order to abate or alleviate under the provisions of KRS 224.10-410, the secretary shall file with the Office of Administrative Hearings a copy of the order.

      (b) Upon filing an order to abate or alleviate, the Office of Administrative Hearings shall issue an administrative summons pursuant to Section 6 of this administrative regulation and shall set the time and place for an administrative hearing to be held not more than ten (10) days from the date the order to abate or alleviate was signed by the secretary.

      (3) Response.

      (a) The person named in the order to abate or alleviate shall prior to or at the hearing file a response to the order specifically admitting or denying facts alleged in the order, setting forth other matters to be considered on review, and setting forth evidence, if any, that the condition or activity does not violate the provisions of KRS 224.10-410.

      (b) In lieu of a response, the person named in the order to abate or alleviate may contact the office in writing or by other means and state that an administrative hearing is not needed, and that he does not desire to contest the order.

      (4) Hearing procedure. The administrative hearing shall be held in accordance with Section 3 of this administrative regulation. In addition the hearing officer may require the parties to submit proposed findings of fact and conclusions of law to be considered at the hearing which may be orally supplemented on the record at the hearing, or if written proposed findings of fact and conclusions of law have not been submitted at the hearing, they may be orally presented for the record at the administrative hearing.

      (5) Default. Upon notification by the person named in the order to abate or alleviate that a hearing is not needed or upon failure of the person to appear at the administrative hearing, the hearing officer shall promptly prepare a report stating that the hearing has been waived and the order to abate or alleviate stands as issued.

      (6) Effect of proceedings. The scheduling of an administrative hearing pursuant to this section shall not operate to terminate or stay the effect of the order or to relieve the person named in the order from performing the affirmative obligations imposed in the order to abate or alleviate.

 

      Section 15. Procedures for Orders for Remedy under KRS 151.297. (1) In general. If pursuant to KRS 151.297, the secretary issues an order for remedy, the cabinet shall provide the person to whom the order was issued an opportunity to be heard. The holding of an administrative hearing pursuant to this section shall not operate to terminate or stay the order or the affirmative obligations imposed on a person by the order, unless the hearing officer shall find on the record that the obligations have been met or that the order was improper or inappropriate.

      (2) Notice.

      (a) Upon issuance of an order for remedy under the provisions of KRS 151.297, the secretary shall file with the Office of Administrative Hearings a copy of the order.

      (b) Upon filing an order for remedy, the Office of Administrative Hearings shall issue an administrative summons pursuant to Section 6 of this administrative regulation and shall set the time and place for an administrative hearing to be held not more than five (5) working days from the date the order for remedy was signed by the secretary.

      (3) Response.

      (a) The person named in the order for remedy shall prior to or at the hearing file a response to the order specifically admitting or denying facts alleged in the order, setting forth other matters to be considered on review, and setting forth evidence, if any, that the condition or activity does not violate the provisions of KRS 151.297.

      (b) In lieu of a response, the person named in the order for remedy may contact the office in writing or by other means and state that an administrative hearing is not needed, and that he does not desire to contest the order.

      (4) Hearing procedure. The administrative hearing shall be held in accordance with Section 3 of this administrative regulation. In addition the hearing officer may require the parties to submit proposed findings of fact and conclusions of law to be considered at the hearing which may be orally supplemented on the record at the hearing, or if written proposed findings of fact and conclusions of law have not been submitted at the hearing, they may be orally presented for the record at the administrative hearing.

      (5) Burden of proof. The cabinet shall have the burden of going forward to establish a prima facie case as to the propriety of the order for remedy. The person named in the order for remedy shall have the ultimate burden of persuasion that the condition or activity does not violate KRS 151.297, or that the condition or activity has been discontinued, abated or alleviated.

      (6) Default. Upon notification by the person named in the order for remedy that a hearing is not needed or upon failure of the person to appear at the administrative hearing, the hearing officer shall promptly prepare a report stating that the hearing has been waived and the order for remedy stands as issued.

      (7) Effect of proceedings. The scheduling of an administrative hearing pursuant to this section shall not operate to terminate or stay the effect of the order or to relieve the person named in the order from performing the affirmative obligations imposed in the order for remedy.

 

      Section 16. Judicial Review, Effect, and Subsequent Proceedings. (1) Judicial review. Judicial review may be taken from a final order of the secretary to the appropriate circuit court of competent jurisdiction in accordance with KRS 151.186 or 224.10-470 as applicable.

      (2) Effect of final order pending judicial review. The commencement of proceedings for judicial review of a final order of the secretary shall not operate as a stay of a final order, unless specifically ordered by the court of competent jurisdiction.

      (3) Remands from courts. Whenever a matter is remanded from any court for further proceedings, and to the extent the court's directive and time limitations will permit, the parties shall be allowed an opportunity to submit to the appropriate hearing officer, a report recommending procedures to be followed in order to comply with the court's order. The hearing officer shall review the reports and enter special orders governing the handling of matters remanded for further proceedings.

 

      Section 17. Requirement to File Written, Direct Testimony and Its Use in Administrative Proceedings Subject to KRS 224.10-440. In proceedings subject to KRS 224.10-440:

      (1) In addition to the provisions of Section 3(1)(b) of this administrative regulation pertaining to the admission of written testimony, the hearing officer may require, in any case, the filing of the written testimony of a witness as if on direct examination, which shall be prepared and filed in the record in advance of the formal administrative hearing. The hearing officer may require such written, direct testimony of any or all witnesses. The hearing officer shall allow such written testimony to be supplemented by additional evidence whenever the ends of justice require consideration of such additional evidence.

      (2) Written testimony shall be accompanied by an affidavit of the witness verifying that the written, direct testimony is a true and accurate record of the witness’ testimony as if given orally, and that the answers to the questions propounded to the witness are true. Any witness whose written testimony is prefiled shall appear at the formal administrative hearing unless all parties agree to waive the appearance of the witness. At the formal administrative hearing the witness shall again verify that the written, direct testimony is a true and accurate record of the witness’ testimony as if given orally and that the answers to the questions propounded to the witness are true, and the witness shall be available for cross examination. If a witness fails to verify his or her written, direct testimony or is not available for cross examination at the formal administrative hearing, the written testimony of that witness shall be excluded from the record, unless the parties agree otherwise.

      (3) Written testimony shall be set forth in a "question and answer" format.

      (4) If written testimony that is based upon a separate document or writing is submitted into the record, that document or writing shall be authenticated and entered into the record as an accompanying exhibit to the written testimony.

      (5) Parties shall have a reasonable opportunity prior to the formal administrative hearing to object to all or portions of any written testimony or an accompanying exhibit and to obtain a ruling on objections to written testimony or exhibits prior to their introduction at the administrative hearing. Written testimony and accompanying exhibits shall be subject to the same standards of authentication and admissibility as all other testimony and exhibits offered in an administrative hearing.

 

      Section 18. Waiver and Waiver Revocation in Administrative Proceedings Subject to KRS 224.10-440. In proceedings subject to KRS 224.10-440:

      (1) The parties may agree to waive in writing the deadlines of KRS 224.10-440(3) by executing a waiver agreement and filing it in the Office of Administrative Hearings. Any such waiver by a party shall be signed by the party or the party’s counsel to be effective.

      (2) Waiver of the KRS 224.10-440(3) deadlines shall not be subject to revocation by a party without consent of all parties and the approval of the hearing officer.

 

      Section 19. Motions for Deadline Extensions in Administrative Proceedings Subject to KRS 224.10-440. In proceedings subject to KRS 224.10-440:

      (1) A party or hearing officer seeking an extension of the deadline for completion of the administrative hearing process set forth in KRS 224.10-440(3) shall file in the Office of Administrative Hearings a motion no less than forty-five (45) days prior to the deadline for the hearing officer to transmit the report and recommended order to the secretary, unless good cause is shown for not filing the motion prior to forty-five (45) days before the deadline. The written request for extension shall include a proposed date certain by which the report and recommended order shall be completed.

      (2) A party or hearing officer objecting to the extension shall file any response in opposition to the motion not later than seven (7) calendar days from receipt of the motion. The mail rule provisions set forth in 400 KAR 1:030, Section 3(3) shall not be applicable in calculating the deadline for filing the response.

      (3) Upon expiration of the time period for motions and responses to motions, the Office of Administrative Hearings shall immediately tender the motion and any response to the secretary or the secretary’s designee.

      (4) The secretary or the secretary’s designee shall rule on the motion within ten (10) days from expiration of the time period for filing objections to any motion for extension. (21 Ky.R. 730; eff. 12-12-1994; Am. 22 Ky.R. 937; eff. 12-13-95; 33 Ky.R. 2788; 3210; 3362; eff. 6-1-2007.)

Notation

      RELATES TO: KRS 146.200-146.360, 146.990, 149.344, 149.346, 149.348, 151.182, 151.184, 151.297, 151.990, Chapters 223, 224

      STATUTORY AUTHORITY: KRS 146.270, 149.344, 149.346, 151.125, 151.182, 151.184, 151.186, 151.297, 224.10-100,224.10-410, 224.10-420, 224.10-440, 224.40-310

      NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 146 relating to wild rivers, KRS Chapter 149 relating to timber harvesting, KRS Chapter 151 relating to water resources, KRS Chapter 223 relating to water plant operators and water well drillers, and KRS Chapter 224 relating generally to environmental protection authorize the cabinet to conduct administrative hearings and promulgate administrative regulations. This administrative regulation establishes procedures for conducting administrative hearings, and repeals 401 KAR 40:030 and 400 KAR 1:050, both relating to procedures for conducting administrative hearings on violations of KRS Chapters 146, 149, 151, 223, and 224 and administrative regulations promulgated pursuant thereto, and on orders and final determinations of the cabinet made under those chapters and the administrative regulations promulgated pursuant thereto.