400 KAR | Title 400 KAR — Energy and Environment Cabinet

Chapter 1 Administration

400 KAR 1:001 Definitions for 400 KAR Chapter 1 {#sec-400-kar-1-001 omnilex-key=us-ky-regs-official--title-400--400 KAR 1:001}

Section 1. Definitions.

(1) "Administrative hearing" means a formal adjudicatory hearing conducted before the cabinet pursuant to KRS Chapters 146, 149, 151, 223, 224, 350, 351.315 to 351.375, or 353, except for those conducted by the Kentucky Oil and Gas Conservation Commission pursuant to KRS 353.500 to 353.720.

(2) "Cabinet" is defined by KRS 149.330(2), 151.100(2), 223.400(3), 224.1-010(9), 350.010(10), and 353.510(43).

(3) "Chief hearing officer" means the individual duly qualified and designated by the secretary as the chief hearing officer of the office.

(4) "Day" means calendar day unless otherwise specified to be a working day.

(5) "Final order" means final order of the secretary.

(6) "Hearing officer" means the individual duly qualified and assigned as presiding officer to conduct an administrative hearing and includes the chief hearing officer.

(7) "Individual" means a natural person.

(8) "Initiating document" means a petition for administrative hearing, an administrative complaint, a show cause order or other document that commences an administrative proceeding.

(9) "Interim report" means statements made by a hearing officer in written form that are not intended to be considered by the secretary and that are not subject to judicial review.

(10) "Office" means the office of administrative hearings.

(11) "Party" means:

(a) The named person whose legal rights, duties, privileges, or immunities are being adjudicated in the administrative hearing;

(b) Any other person who is duly granted intervention in the administrative hearing; and

(c) Any agency named as a party to the adjudicatory proceeding or entitled or permitted by law to participate fully in the administrative hearing.

(12) "Person" is defined by KRS 149.330(7), 151.100(15), 223.400(5), 224.1-010(17), 350.010(9), and 353.510(5).

(13) "Petitioner" means the party filing an initiating document in an action before the office.

(14) "Pleading" means an initiating document, answer, motion, response, supporting memorandum, brief, notice, and any other document authorized to be filed by a hearing officer or by administrative regulation.

(15) "Record" means:

(a) The electronic recording or transcript of a proceeding;

(b) Each hearing officer ruling;

(d) Documentary and physical evidence received or considered;

(e) A statement of any matter officially noticed;

(f) Each question and offer of proof;

(g) Each objection;

(h) Any legal brief;

(i) A proposed finding and recommended order;

(j) Any exception and response; and

(k) Final order.

(16) "Respondent" means any person against whom a claim is made in any action filed in the office and includes any person so designated in the caption of an initiating document.

(17) "Responsive pleading" means the answer or any document required or authorized by administrative regulation or a hearing officer to be filed in response to a pleading.

(18) "Secretary" is defined by KRS 146.210(7), 151.100(16), 223.400(6), 224.1-010(24), and 350.010(11).

History

RELATES TO: KRS 146.200 - 146.360, 146.450, 146.530, 146.990, 149.344, 149.346, 149.348, 151.125, 151.182, 151.184, 151.297, 151.990, Chapters 223, 224, 350.028, 350.0301, 350.0305, 350.032, 350.070, 350.085, 350.090, 350.093, 350.130, 350.255, 350.465, 350.610, 350.990, 351.315, 351.345, 351.350, 353.060, 353.200, 353.590, 353.5901, 353.620, 353.630, 353.640, 353.700, 30 C.F.R. Parts 724, 730, 731, 732, 733, 735, 917, 30 U.S.C. 1253, 1255
STATUTORY AUTHORITY: KRS 146.270, 146.450, 146.990, 149.344, 149.346, 151.125, 151.182, 151.184, 151.186, 151.297, 223.200, 223.991, 224.10-100, 224.10-410, 224.10-420, 224.10-430, 224.10-440, 224.40-310, 224.60-120, 350.020, 350.028, 350.0301, 350.0305, 350.255, 350.465, 350.610, 351.315, 351.345, 351.350, 353.700, 30 C.F.R. Parts 724, 730, 731, 732, 733, 735, 917, 30 U.S.C. 1253, 1255
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapters 146, 149, 151, 223, 224, 350, 351, and 353 authorize the cabinet to conduct administrative hearings and authorize the cabinet to promulgate administrative regulations to regulate the administrative hearing process. This administrative regulation establishes definitions for certain essential terms used in 400 KAR Chapter 1.
History: 400 KAR 001:001. 21 Ky.R. 718; eff. 12-12-1994; 43 Ky.R. 1853; 44 Ky.R. 60; eff. 8-4-2017; 45 Ky.R. 431; eff. 10-4-2018; Crt eff. 10-1-2025.

400 KAR 1:040 Administrative discovery {#sec-400-kar-1-040 omnilex-key=us-ky-regs-official--title-400--400 KAR 1:040}

Section 1. General Provisions Governing Discovery.

(1) Discovery methods. Parties to administrative hearings may obtain discovery by one (1) or more of the following methods, which shall not be limited except as established in subsection (3) of this section:

(a) Depositions upon oral examination or written questions;

(b) Written interrogatories;

(c) Production of documents or things or, for parties other than the cabinet, permission to enter upon land or other property, for inspection and other purposes; and

(d) Requests for admission.

(2) Scope of discovery.

(a)

Parties may obtain discovery regarding any matter, not privileged or confidential under KRS 224.10-210, 224.10-212, 353.660, 353.6603 through 353.6606, or under any other privilege recognized by statute or at common law, whether it relates to a claim or defense of the party seeking discovery or to a claim or defense of any other party, which is relevant to the subject matter involved in the administrative hearing, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.
It shall not be grounds for objection that the information sought will be inadmissible at the administrative hearing if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

(b) Insurance agreements. A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment that may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.

Subject to the provisions of paragraph (d) of this subsection, a party may obtain discovery of documents and tangible things otherwise discoverable under subsection (1) of this section and prepared in anticipation of the administrative hearing by or for another party or by or for that other party's representative (including the party's attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of these materials if the required showing has been made, the hearing officer shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the proceeding.
A party may obtain without the required showing, a statement concerning the action or its subject matter previously made by that party. Upon request, a person not a party may obtain without the required showing, a statement concerning the action or its subject matter previously made by that person. If the request is refused, the person may move for an order of the hearing officer. For purposes of this paragraph, a statement previously made is a written statement signed or otherwise adopted or approved by the person making it, or a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.

(d) Hearing preparation. experts. Discovery of facts known and opinions held by experts, otherwise discoverable under this administrative regulation and acquired or developed in anticipation of or preparation for the administrative hearing, may be obtained only as established in subparagraphs 1. and 2. of this paragraph.

A party may through interrogatories, require any other party to identify each person whom the other party expects to call as an expert witness at the administrative hearing, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. Upon motion, the hearing officer may order further discovery by other means, subject to those restrictions as to scope as the hearing officer may deem appropriate.
A party may discover facts known or opinions held by an expert who has been retained or employed by another party in anticipation of or preparation for an administrative hearing and who is not expected to be called as a witness at the administrative hearing, only upon a showing of exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.

(3) Protective orders.

(a) Upon motion by a party or by the person from whom discovery is sought, accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without administrative action, and for good cause shown, the hearing officer may make any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one (1) or more of the following:

That the discovery not be had;
That the discovery may be had only on specified terms and conditions, including a designation of the time or place;
That the discovery may be had only by a method of discovery other than selected by the party seeking discovery;
That certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;
That discovery be conducted with no one present except persons designated by the hearing officer;
That a deposition after being sealed be opened only by order of the cabinet; or
That a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way.

(b) If the motion for a protective order is denied in whole or in part, the hearing officer may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of Section 10(1)(c) of this administrative regulation shall apply to the award of expenses incurred in relation to the motion.

(4) Sequence and timing of discovery. Unless the hearing officer upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party's discovery.

(5) Supplementation of responses. A party who has responded to a request for discovery with a response that was complete when made shall not be under duty to supplement that response to include information thereafter acquired, except as established in paragraphs (a) through (c) of this subsection.

(a) A party shall timely supplement a response with respect to any question directly addressed to the identity and location of persons having knowledge of discoverable matters, or the identity of each person expected to be called as an expert witness at the hearing, the subject matter on which the person is expected to testify, and the substance of the person's testimony.

(b) A party shall timely amend a prior response if the party obtains information upon the basis of which the party knows that the response was incorrect when made, or the party knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.

(c) A duty to supplement responses may be imposed by order of the hearing officer, agreement of the parties, or at any time prior to the hearing through new requests for supplementation of prior responses.

Section 2. Persons before Whom Depositions may be Taken. Depositions shall be taken before an examiner; a judge, clerk, commissioner, or official reporter of a court; a notary public; or before another person and under such other circumstances authorized by law.

Section 3. Stipulations Regarding Discovery Procedure. Unless the hearing officer orders otherwise, the parties may, by agreement, provide that:

(1) Depositions may be taken before any person, at any time or place, upon any notice, and in any manner and when so taken may be used like other depositions; and

(2) Modify the procedures provided by this administrative regulation for other methods of discovery.

Section 4. Depositions Upon Oral Examination.

(1) When depositions may be taken. After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination. The attendance of witnesses may be compelled by subpoena. The deposition of a person confined in prison may be taken only by leave of a court having appropriate jurisdiction and on terms as the court prescribes.

(2) General requirements.

(a) A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the administrative hearing. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify the person or the particular class or group to which the person belongs, the matter upon which each person will be examined, and the name or descriptive title and address of the person before whom the deposition is to be taken. If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced as set forth in the subpoena shall be attached to or included in the notice.

(b) The hearing officer may for cause shown, enlarge or shorten the time for taking the deposition.

(c) The hearing officer may upon motion order that the testimony at a deposition be recorded by other than stenographic means, in which event the order shall designate the manner of recording, preserving, and filing the deposition, and may include other provisions to assure that the recorded testimony will be accurate and trustworthy. If the order is made, a party may nevertheless arrange to have a stenographic transcription made at the party's own expense.

(d) The notice to a party deponent may be accompanied by a request made in compliance with Section 8 of this administrative regulation for the production of documents and tangible things at the taking of the deposition. The procedure of Section 8(2) of this administrative regulation shall apply to the request.

(e) A party may in the notice and in a subpoena, name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one (1) or more officers, directors, managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. A subpoena shall advise a nonparty organization of its duty to make the designation. The persons so designated shall testify as to matters known or reasonably available to the organization. This paragraph does not preclude taking a deposition by any other procedure authorized in this administrative regulation.

(3) Examination and cross-examination.

(a) Examination and cross-examination of witnesses may proceed as permitted at the administrative hearing. The person before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under the person's direction and in the person's presence, record the testimony of the witness. The testimony shall be taken stenographically or recorded by any other means ordered in accordance with subsection (2)(c) of this section. If requested by one (1) of the parties, the testimony shall be transcribed at the requesting party's expense.

(b) All objections made at the time of the examination to the qualifications of the person taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the person taking the deposition upon the deposition. Evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition and that party shall transmit them to the officer, who shall propound them to the witness and record the answers verbatim.

(4) Motion to terminate or limit examination. At any time during the taking of the deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in a manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the hearing officer may order the person conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in Section 1(3) of this administrative regulation. If the order made terminates the examination, it shall be resumed thereafter only upon the order of the hearing officer. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order. The provisions of Section 10(1)(c) of this administrative regulation apply to the award of expenses incurred in relation to the motion.

(5) Submission to witness. Any party to an action may make a written request before the person taking a deposition therein that it be submitted to the witness. In this event, when the testimony is fully transcribed, the deposition shall be submitted to the witness for examination and shall be read to or by the witness. Any changes in form or substance that the witness desires to make shall be entered upon the deposition by the person taking the deposition with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness unless the witness is ill or cannot be found or refuses to sign. If the deposition is not signed by the witness, the person before whom the deposition is taken shall sign it and state on the record the fact of the illness or absence of the witness or the fact of the refusal to sign together with the reason, if any, given therefor; and the deposition may then be used as fully as though signed unless on a motion to suppress the hearing officer holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.

(6) Certification and filing by person taking deposition.

(a) The person before whom the deposition is taken shall certify on the deposition that the witness was duly sworn by that person and that the deposition is a true record of the testimony given by the witness.

(b) Documents and things produced for inspection during the examination of the witness shall, upon the request of a party, be marked for identification and annexed to and returned with the deposition, and may be inspected and copied by any party, except that the person producing the materials may substitute copies to be marked for identification, if a fair opportunity is afforded all parties to verify the copies by comparison with the originals, and if the person producing the materials requests their return, the person before whom the deposition is taken shall mark them, give each party an opportunity to inspect and copy them, and return them to the person producing them, and the materials may then be used in the same manner as if annexed to and returned with the deposition. Any party may move for an order that the original be annexed to and returned with the deposition pending final disposition of the case.

(c) Upon payment of reasonable charges therefor, not to exceed those fixed by statute, the person taking the deposition shall furnish a copy of the deposition to any party or to the deponent.

(7) Failure to attend or to serve subpoena; expenses.

(a) If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another party attends in person or by attorney pursuant to the notice, the hearing officer may order the party giving the notice to pay to the other party, the amount of the reasonable expenses incurred by the party and the party's attorney in so attending, including reasonable attorney's fees.

(b) If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon the witness and the witness because of the failure does not attend, and if another party attends in person or by attorney because the party expects the deposition of that witness to be taken, the hearing officer may order the party giving the notice to pay to the other party, the amount of the reasonable expenses incurred by the party and the party's attorney in so attending, including reasonable attorney's fees.

Section 5. Depositions Upon Written Questions.

(1) Serving questions; notice.

(a) After service of the summons, any party may take the testimony of any person, including a party, by deposition upon written questions. The attendance of witnesses may be compelled by the use of subpoenas. The deposition of a person confined in prison may be taken only by leave of court of appropriate jurisdiction on terms as that court prescribes.

(b) A party desiring to take a deposition upon written questions shall serve them upon every other party with a notice stating the name and address of the person who is to answer them, if known, and if the name is not known, a general description sufficient to identify the person or the particular class or group to which the person belongs, and the name or description title and address of the officer before whom the deposition is to be taken. A deposition upon written questions may be taken of a public or private corporation or a partnership or association or governmental agency in accordance with the provisions of Section 4(2)(e) of this administrative regulation.

(2) The officer before whom the deposition is to be taken to take responses and prepare record. A copy of the notice and copies of all questions served shall be delivered by the party taking the deposition to the officer designated in the notice, who shall proceed promptly, in the manner provided by Section 4(3), (5), and (6) of this administrative regulation, to take the testimony of the witness in response to the questions and to prepare, certify, and file or mail the deposition, attaching thereto the copy of the notice and the questions received. Neither party agent or attorney shall be present at the examination of the witness.

Section 6. Use of Depositions in Administrative Hearings.

(1) Use of depositions. At the administrative hearing any part or all of a deposition so far as admissible may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the provisions established in paragraphs (a) through (e) of this subsection.

(a) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness.

(b) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, managing agent, or a person designated under Section 4(2)(e) or 5(1)(b) of this administrative regulation to testify on behalf of a public or private corporation, partnership, or association or governmental agency that is a party, may be used by an adverse party for any purpose.

(c) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the hearing officer finds that:

The witness is dead;
The party offering the deposition has been unable to procure the attendance of the witness by subpoena;
The witness is at a greater distance than 100 miles from the place of the administrative hearing or out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition;
The witness is the Governor, Secretary, Auditor or Treasurer of the state; the witness is a judge or clerk of a court; the witness is a postmaster; the witness is a president, cashier, teller, or clerk of a bank; the witness is a practicing physician, dentist, or attorney; or the witness is a keeper, officer, or guard of a penitentiary;
The witness is of unsound mind, having been of sound mind when his deposition was taken;
The witness is prevented from attending the trial by illness, infirmity, or imprisonment;
The witness is in the military service of the United States or of this state; or
The hearing officer finds that circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally at the administrative hearing, to allow the deposition to be used.

(d) If only a part of a deposition is offered in evidence by a party, an adverse party may require introduction of any other part that ought in fairness to be considered with the part introduced, and any party may introduce any other parts.

(e) Substitution of parties does not affect the right to use depositions previously taken.

(2) Objections to admissibility. Objection may be made at the administrative hearing to receiving in evidence any deposition or part thereof for any reason that would require the exclusion of the evidence if the witness were then present and testifying.

(3) Effect of taking or using depositions. The taking of a deposition or the questioning of a deponent shall not make evidence admissible that is otherwise incompetent or constitute a waiver of objections to its admissibility.

(4) Effect of errors and irregularities.

(a) As to notice. All errors and irregularities in the notice for taking a deposition shall be waived unless written objection is promptly served upon the party giving the notice.

(b) As to disqualification of person before whom deposition is to be taken. Objection to taking a deposition because of disqualification of the person before whom it is to be taken shall be waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.

Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony shall not be waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one (1) that might have been obviated or removed if presented at that time.
Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties and errors of any kind that might be obviated, removed, or cured if promptly presented, shall be waived unless timely objection thereto is made at the taking of the deposition.
Objections to the form of written questions shall be waived unless served in writing upon the party propounding them within the time allowed for serving the succeeding cross or other questions and within three (3) days after service of the last questions authorized.

(d) As to completion and return of deposition. Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, endorsed, transmitted, filed, or otherwise dealt with by the person before whom the deposition was taken under this section and Section 5 of this administrative regulation shall be waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.

Section 7. Interrogatories to Parties.

(1) Availability; procedures for use.

(a) Any party may serve upon any other party written interrogatories to be answered by the party served, or if the party served is a public or private corporation or a partnership or association or governmental agency, by any officer or agent, who shall furnish the information as is available to the party. Interrogatories may be served upon any party at any time after the commencement of the action. A copy of the interrogatories, answers, and all related pleadings shall be served upon all parties.

(b) Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. The answers are to be signed by the person making them, and the objections signed by the attorney making them. The party upon whom the interrogatories have been served shall serve a copy of the answers, and objections if any, within thirty (30) days of service or within the other time as specified by the hearing officer or agreed upon. The party submitting the interrogatories may move for an order under Section 10(1) of this administrative regulation with respect to any objection to or other failure to answer an interrogatory.

(c) Each party may propound a maximum of thirty (30) interrogatories and thirty (30) requests for admission to each other party. For purposes of this section, each subpart of an interrogatory or request shall be counted as a separate interrogatory or request. The following interrogatories shall not be included in the maximum allowed:

A request for the names and addresses of persons answering the interrogatories;
A request for the names and addresses of the witnesses; and
A request as to whether the persons answering are willing to supplement their answers if information subsequently becomes available. Any party may move the hearing officer for permission to propound either interrogatories or requests for admission in excess of the limit of thirty (30).

(2) Scope; use at administrative hearing.

(a) Interrogatories may relate to any matters that may be inquired into under Section 1(2) of this administrative regulation, and the answers may be used to the extent permitted by the rules of evidence.

(b) An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the hearing officer may order that an interrogatory need not be answered until after designated discovery has been completed or until a prehearing conference or other later time.

(3) Option to produce business records. If the answer to an interrogatory may be derived or ascertained from the business records of the party upon whom the interrogatory has been served or from an examination, audit, or inspection of business records, or from a compilation, abstract, or summary based thereon, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it shall be a sufficient answer to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries.

Section 8. Production of Documents and Things.

(1) Scope. Any party may serve on any other party a request to produce and permit the party making the request, or someone acting on the party's behalf, to:

(a) Inspect and copy any designated documents, including writings, drawings, graphs, charts, photographs, phonorecords, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form; or

(b) Inspect and copy, test, or sample any tangible things that constitute or contain matters within the scope of Section 1(2) of this administrative regulation and that are in the possession, custody, or control of the party upon whom the request is served. This subsection shall not be construed so as to limit or impose additional requirements on the cabinet with respect to its authority to enter property or to conduct inspections authorized by law.

(2) Procedure. The request may be served on any party without leave of the hearing officer at any time after service of the summons. The request shall set forth the items to be inspected either by individual item or by category, and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. The party upon whom the request is made shall serve written response within thirty (30) days or within such other time as specified by the hearing officer or agreed upon by the parties. The party submitting the request may move for an order under Section 10 of this administrative regulation with respect to any objection to or failure to respond to the request or any part thereof, or any failure to permit inspection as requested.

Section 9. Requests for Admission.

(1) A party may serve upon any other party a written request for admission, for purposes of the pending administrative hearing only, of the truth of any matters within the scope of Section 1(2) of this administrative regulation set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. The request may be served at any time after the commencement of the action. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying.

(2) Each matter for which an admission is requested shall be separately set forth. The matter shall be admitted unless, within thirty (30) days after service of the request, or within shorter or longer time as the hearing officer may allow or the parties may agree, the party to whom the request is directed shall serve upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by the party's attorney. If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and if good faith requires that a party qualify the answer or deny only a part of the matter for which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder. An answering party shall not give lack of information or knowledge as a reason for failure to admit or deny unless the party states that a reasonable inquiry has been made and that the information known or readily obtainable is insufficient to enable the party to admit or deny. A party who considers that a matter for which an admission has been requested presents a genuine issue for the hearing may not, on that ground alone, object to the request; the party may deny the matter or set forth reasons why the matter cannot be admitted or denied.

(3) The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the objection is justified, the hearing officer shall order that an answer be served. If the hearing officer determines that an answer does not comply with the requirements of this section, the hearing officer may order either that the matter is admitted or that an amended answer be served. The hearing officer may, in lieu of these orders, determine that final disposition of the request be made at a prehearing conference. The provisions of Section 10(3) of this administrative regulation apply to the award of expenses incurred in relation to the motion.

(4) Effect of admission. Any matter admitted under this section is conclusively established unless the hearing officer on motion permits withdrawal or amendment of the admission. The hearing officer may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the hearing officer that withdrawal or amendment will prejudice the party in maintaining the action or defense on the merits. An admission made by a party under this section is for the purpose of the pending administrative hearing only and is not an admission for any other purpose nor may it be used against the party in any other proceeding.

Section 10. Failure to Make Discovery; Sanctions.

(1) Motion for order compelling discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as established in paragraphs (a) through (c) of this subsection.

(a) Motion.

If a deponent fails to answer a question propounded or submitted under Section 4 or 5 of this administrative regulation or a corporation or other entity fails to make a designation under Sections 4(2)(e) or 5(1)(b) of this administrative regulation, or a party fails to answer an interrogatory submitted under Section 7 of this administrative regulation, or a party fails to allow examination under Section 8 of this administrative regulation, the discovering party may move for an order compelling an answer or a designation or an order compelling examination in accordance with the request. The motion shall include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without administrative action. If taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before he or she applies for an order.
If the motion is denied in whole or in part, the hearing officer may make a protective order as the hearing officer would have been empowered to make on a motion made pursuant to Section 1(3) of this administrative regulation.

(b) Evasive or incomplete answer. For the purposes of this section, an evasive or incomplete answer shall be treated as a failure to answer.

If the motion is granted the hearing officer shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising the conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the hearing officer finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.
If the motion is denied, the hearing officer shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney's fees, unless the hearing officer finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.
If the motion is granted in part and denied in part, the hearing officer may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.

(2) Failure to comply with order.

(a) Sanctions by the hearing officer. If a party or an officer, director, managing agent of a party, or a person designated under Section 4(2)(e) or 5(1)(b) of this administrative regulation to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subsection (1) of this section, the hearing officer may make an order regarding the failure if appropriate. The order may include:

An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting the party from introducing designated matters in evidence; or
An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.

(b) Expenses on failure to obey order. In lieu of any of the foregoing orders or in addition thereto, the hearing officer shall require the party failing to obey the order or the attorney advising the party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the hearing officer finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

(3) Expenses on failure to admit. If a party fails to admit the genuineness of any document or the truth of any matter as requested under Section 9 of this administrative regulation, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may apply to the hearing officer for an order requiring the other party to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees. The hearing officer shall make the order unless it finds that the request was held objectionable pursuant to Section 9(1) of this administrative regulation, the admission sought was of no substantial importance, the party failing to admit had reasonable ground to believe that the party might prevail on the matter, or there was other good reason for the failure to admit.

(4) Failure of party to attend at own deposition or serve answers to interrogatories or respond to request for inspection.

(a) If a party or an officer, director, managing agent of a party, or a person designated under Section 4(2)(e) or 5(1)(b) of this administrative regulation to testify on behalf of a party fails to appear before the officer who is to take the deposition, after being served with a proper notice, or to serve answers or objections to interrogatories submitted under Section 7 of this administrative regulation, after proper service of the interrogatories, or to serve a written response to a request for examination submitted under Section 8 of this administrative regulation, after proper service of the request, the hearing officer on motion may make orders in regard to the failure as are just, and among others, the hearing officer may take any action authorized under subsection (2)(a)1. through 3. of this section. In lieu of any order or in addition thereto, the hearing officer shall require the party failing to act to pay the reasonable expenses, including attorney's fees, caused by the failure unless the hearing officer finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

(b) The failure to act described in this section may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided in Section 1(3) of this administrative regulation.

(5) Expenses against the Commonwealth. Expenses and attorney's fees shall not be imposed upon the Commonwealth under this section, except as otherwise provided in 400 KAR 1:110, Section 12.

History

RELATES TO: KRS 146.200-146.360, 146.990, 151.182, 151.184, 151.297, 151.990, Chapter 223, 224, 350.028, 350.070, 350.085, 350.093, 350.130, 350.465, 350.990, 351.315, 351.345, 351.350, 353.060, 353.200, 353.590, 353.5901, 353.620, 353.630, 353.640, 353.700, 30 C.F.R. Parts 730, 731, 732, 733, 735, 917, 30 U.S.C. 1253, 1255
STATUTORY AUTHORITY: KRS 151.125, 224.10-100, 224.10-410, 224.10-420, 224.10-430, 224.10-440, 224.40-310, 350.028, 350.255, 350.465, 351.315, 351.345, 351.350, 353.700, 30 C.F.R. Parts 730, 731, 732, 733, 735, 917, 30 U.S.C. 1253, 1255
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapters 146, 151, 223, 224, 350, 351, and 353 authorize the cabinet to conduct administrative hearings and investigations concerning a wide variety of matters. This administrative regulation establishes procedures for discovery.
History: 400 KAR 001:040. 10 Ky.R. 855; 1151; eff. 6-1-1984; 17 Ky.R. 3006; eff. 6-26-1991; 21 Ky.R. 495; 1090; eff. 12-12-1994; TAm eff. 5-4-2018; 45 Ky.R. 433; eff. 10-4-2018; Crt eff. 10-1-2025.

400 KAR 1:060 Confidentiality of records or other information furnished to or obtained by the Environmental and Public Protection Cabinet {#sec-400-kar-1-060 omnilex-key=us-ky-regs-official--title-400--400 KAR 1:060}

Section 1. Definitions. Whenever used in this administrative regulation the following terms shall have the meaning as set forth herein:

(1) "Record or other information" means all books, papers, maps, photographs, cards, tapes, discs, recordings or other documentary materials regardless of physical form or characteristics, which are furnished to or obtained by the cabinet; provided that, this administrative regulation does not apply to any record or other information furnished to or obtained by the cabinet pursuant to the provisions of KRS Chapter 350;

(2) "Cabinet" means the Environmental and Public Protection Cabinet;

(3) "Trade secret" means a novel or unique plan or process, tool, mechanism or compound, known only to its owner, his employees or former employees, or persons under contractual obligation to hold the information in confidence, which has been perfected and appropriated by the exercise of individual ingenuity, and which gives him an opportunity to retain or obtain an advantage over competitors who do not know it;

(4) "Confidential business information" means any record or other information relating to hazardous waste, which is not of public knowledge or general knowledge in the trade or business, furnished to or obtained by the cabinet, the disclosure of which would be likely to have either of the following effects:

(a) To impair the cabinet's ability to obtain the necessary information in the future; or

(b) To create an unfair advantage in the competitors of the person from which the information was obtained.

(5) "Effluent data" means, with reference to any source of discharge of a pollutant as that term is defined in 401 KAR 5:050:

(a) Information necessary to determine the identity, amount, frequency, concentration, temperature or other characteristics (to the extent related to water quality) of any pollutant which has been discharged by the source (or of any pollutant resulting from any discharge from the source), or any combination of the foregoing;

(b) Information necessary to determine the identity, amount, frequency, concentration, temperature or other characteristics (to the extent related to water quality) of the pollutants which, under an applicable standard or limitation, the source was authorized to discharge (including, to the extent necessary for such purpose, a description of the manner or rate of operation of the source);

(c) A general description of the location and/or nature of the source to the extent necessary to identify the source and to distinguish it from other sources (including, to the extent necessary for such purposes, a description of the device, installation or operation constituting the source);

(d) Information required by a KPDES application form, including information submitted on the forms themselves and any attachments used to supply information required by the forms, and Kentucky Pollution Discharge Elimination System permits; and

(e) Notwithstanding the foregoing, the following information shall be considered to be "effluent data" only to the extent necessary to allow the cabinet to disclose publicly that a source is or is not in compliance with an applicable standard or limitation, or to allow the cabinet to demonstrate the feasibility, practicability, or attainability or lack thereof of an existing or proposed standard or limitation:

Information concerning research, or the results of research, on any product, method, device or installation (or any component thereof) which was produced, developed, installed, and used only for research purposes; and
Information concerning any product, method, device or installation (or any component thereof) designed and intended to be marketed or used commercially but not yet so marketed or used.

(6) "Emission data" means, with reference to any source of emission of any substance into the air:

(a) Information necessary to determine the identity, amount, frequency, concentration or other characteristics (to the extent related to air quality) of the emissions which have been emitted by the source (or of any pollutant resulting from any emission by the source), or any combination of the foregoing;

(b) Information necessary to determine the identity, amount, frequency, concentration or other characteristics (to the extent related to air quality) of the emissions which, under an applicable standard or limitation, the source was authorized to emit (including, to the extent necessary for such purposes, a description of the manner or rate of operation of the source);

(c) A general description of the location and/or nature of the source to the extent necessary to identify the source and to distinguish from other sources (including, to the extent necessary for such purposes, a description of the device, installation or operation constituting the source); and

(d) Notwithstanding the foregoing, the following information shall be considered to be "emission data" only to the extent necessary to allow the cabinet to disclose publicly that a source is or is not in compliance with an applicable standard or limitation, or to allow the cabinet to demonstrate the feasibility, practicability or attainability or lack thereof of an existing or proposed standard or limitation:

Information concerning research, or the results of research on any project, method, device or installation (or any component thereof) which was produced, developed, installed, and used only for research purposes; and
Information concerning any product, method, device or installation (or any component thereof) designed and intended to be marketed or used commercially but not yet so marketed or used.

(7) "Owner" or "owner or operator" means the owner of a proprietary interest in a trade secret or confidential business information.

Section 2. Asserting Claims of Entitlement to Confidential Treatment.

(1) An owner or operator submitting a record or other information to the cabinet may assert a claim that the record or other information, not related to emission data or effluent data, is entitled to confidential treatment as a trade secret or confidential business information.

(2) The claim may be asserted by placing on or attaching to the record or other information a cover sheet, stamped or typed legend, or other suitable form of notice employing the language "trade secret" or "confidential business information" as applicable. Allegedly confidential portions of otherwise nonconfidential documents should be clearly identified by the owner or operator, and shall be submitted separately to facilitate identification and handling by the cabinet. The allegedly confidential portion shall be submitted as a separate enclosure with the nonconfidential portions. The text of the nonconfidential portion of the record or other information shall cross-reference the allegedly confidential portions where applicable, so as to permit identification. If the owner or operator desires confidential treatment only until a certain date or until the occurrence of a certain event, the notice should so state.

(3) The claim shall be limited to the record or other information, or portion thereof, for which a claim of entitlement to confidential treatment may reasonably be asserted in good faith, and shall not be asserted for any record or other information relating to emission data or effluent data.

(4) After the effective date of this administrative regulation, the claim shall be asserted at the time of submittal of the record or other information to the cabinet. Provided that, the claim for any record or other information furnished to the cabinet within thirty (30) days of the effective date of this administrative regulation shall be asserted within sixty (60) days of the effective date.

(5) An owner or operator may assert a claim for any record or other information submitted to the cabinet prior to the effective date of this administrative regulation and previously marked as confidential. The claim shall be asserted by filing a statement, as set forth in Section 3 of this administrative regulation, within thirty (30) days of the effective date of this administrative regulation.

(6) Failure to assert a timely claim shall result in the record or other information being open to reasonable public inspection.

Section 3. Statement of Basis for Claim.

(1) When a claim that a record or other information is entitled to confidential treatment is made, the owner or operator shall submit a statement in support of the claim.

(2) The statement shall contain:

(a) The name and address of the owner or operator;

(b) The reason for submitting the record or other information to the cabinet, including whether the submittal is voluntary or required by law;

(c) Whether there has been a previous determination by a court, an Environmental Protection Agency legal office acting under 40 CFR Part 2, Subpart B, or other governmental agency that the record or other information is, or is not, entitled to confidential treatment;

(d) The measures taken by the owner or operator to protect the confidentiality of the record or other information, and whether it intends to continue to take such measures;

(e) Whether the information is not, and has not been, reasonably obtainable without the owner or operator's consent by other persons, other than governmental bodies, by use of legitimate means (other than discovery based upon a showing of special need in a judicial or quasi-judicial hearing);

(f) Whether the record or other information is customarily held in confidence by the owner or operator and persons like them;

(g) For a claim relating to confidential business information, the manner in which disclosure of the information is likely to create an unfair advantage in the competitors of the owner or operator; and

(h) For a claim relating to confidential business information, the basis for asserting that disclosure is likely to impair the cabinet's ability to obtain necessary information in the future.

(3) The statement shall not contain or reveal the record or other information for which the claim is asserted, but shall reference the record or other information to which it applies. The statement shall be open to reasonable public inspection.

(4) When an owner or operator has asserted a claim that a record or other information constitutes a trade secret or confidential business information, the record or other information will be treated as confidential until the cabinet determines that the record or other information is not entitled to confidential treatment and the owner or operator has been given fifteen (15) days written notice of the determination.

Section 4. Designation.

(1) Upon submission of the statement required by Section 3 of this administrative regulation, the cabinet will determine whether the record or other information is entitled to confidential treatment as a trade secret or confidential business information.

(2) The cabinet may request the owner or operator to submit additional information to show that the record or other information is entitled to designation as a trade secret or confidential business information.

(3)

(a) In the case of a claim for confidential treatment of a record or other information submitted to the cabinet prior to the effective date of this administrative regulation, the designation or denial will be made within twenty (20) working days of receipt of the statement asserting the claim.

(b) In the case of any other record or information furnished to the cabinet, following the effective date of this administrative regulation, the designation or denial shall be made within twenty (20) working days of receipt of the claim for confidential treatment.

(4) In making a determination to designate a record or other information as entitled to confidential treatment as a trade secret or confidential business information, the cabinet shall consider the statement submitted pursuant to Section 3 of this administrative regulation and any other relevant information, including information submitted by the public. The cabinet may deny the claim if it is not limited to a record or other information, or portion thereof, which is reasonably entitled to confidential treatment, or not asserted in good faith. The statement shall establish that the record or other information is entitled to confidential treatment. Failure to do so shall result in denial of the claim.

(5) The burden to show that a record or other information is entitled to confidential treatment is on the owner or operator.

(6) Notice of the determination and the reason therefor shall be given to the owner or operator at the address set forth in the statement.

Section 5. Open Records Litigation.

(1) If the cabinet makes a determination that a record or other information is entitled to confidential treatment, and the determination is challenged pursuant to the provisions of the Kentucky Open Records Act, KRS 61.870 et seq., or KRS 224.10-420 the cabinet may, in the defense of its designation, call upon the owner or operator to assist in the defense.

(2) To enable the owner or operator to protect its interest, the cabinet will notify the owner or operator within ten (10) working days of services of the complaint or initiating document upon the cabinet.

History

RELATES TO: KRS 61.870-61.884, 152.590, Chapters 146, 151, 224, 224A
STATUTORY AUTHORITY: KRS 224.10-100, 224.10-210, 224.10-212
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-210 and 224.10-212 require the cabinet to adopt rules and administrative regulations regarding the designation of records and information as trade secrets and confidential business information. This administrative regulation sets forth the definitions and procedures for designation, with the exception that this administrative regulation does not apply to records or other information furnished to or obtained by the cabinet pursuant to the provisions of KRS Chapter 350.
History: 400 KAR 001:060. 13 Ky.R. 1681; 1859; eff. 5-14-1987; Crt eff. 7-3-2018; Crt eff. 6-11-2025.

400 KAR 1:090 Administrative hearings practice provisions {#sec-400-kar-1-090 omnilex-key=us-ky-regs-official--title-400--400 KAR 1:090}

Section 1. Applicability. This administrative regulation establishes procedures for conducting an administrative hearing, administrative conference, mediation, and issuance of a final order in regard to a violation and a final determination of the cabinet made pursuant to KRS Chapters 146, 149, 151, 223, 224, 350, 351.315 to 351.375, and 353, except for those conducted by the Kentucky Oil and Gas Conservation Commission pursuant to KRS 353.500 to 353.720.

Section 2. Assignment of a Case Number and Caption.

(1) Assignment of a case number.

(a) If the office receives an initiating document, filed in accordance with Section 3 of this administrative regulation by a person other than the cabinet, the office shall assign a case number to that document.

(b) If the initiating document is filed by the cabinet's Office of General Counsel, the Office of General Counsel shall assign the case number to the document at the time of filing.

(2) Caption requirements. Any person filing an initiating document, or pleading in the office shall state:

(a) The case number in accordance with subsection (1) of this section;

(b) The permit number if it relates to a permit;

(c) The noncompliance number if it relates to a notice of noncompliance and order for remedial measures as defined in 400 KAR 1:110, Section 1;

(d) The cessation order number if it relates to a cessation order as defined in 400 KAR 1:110, Section 1;

(e) The agency interest number, if known;

(f) The petitioner name;

(g) The respondent name; and

(h) Any intervenor name.

(3) Any person filing an initiating document in the office shall state in the caption of the document, the name and address of the person to be served on behalf of each respondent.

(4) Consolidated case caption. A pleading filed in a consolidated case shall list all consolidated case numbers. If a pleading filed in a consolidated case pertains to some, but not all, of the consolidated cases, the party filing the document shall indicate the case to which the document applies.

Section 3. Filing and Retention of a Pleading or Discovery Material.

(1) Filing of a pleading.

(a) Any person filing a pleading in the office shall file the original pleading with the office.

(b) A pleading may be initially filed by facsimile or electronic mail pursuant to the requirements in subparagraphs 1. and 2. of this paragraph. A person filing by facsimile or electronic mail shall, after sending the document via facsimile or by electronic mail, file the original of the document with the office.

Facsimile.

a. A person filing a pleading in the office may file the pleading by facsimile at the facsimile number listed for the office.

b. The facsimile pleading shall be stamped filed according to the time and date stamp placed on the facsimile pleading by the office facsimile machine and shall be filed in the record upon retrieval from the office facsimile machine.

c. If the office facsimile machine malfunctions, the facsimile pleading shall be stamped as of the date actually received in the office.

Electronic mail.

a. A person filing a pleading in the office may file the pleading by electronic mail at the electronic mail address listed for the office, not the electronic mail address of the assigned hearing officer.

b. The pleading shall be filed as a searchable Portable Document Format (PDF). If the pleading is not electronically mailed in a Portable Document Format, it shall not be accepted by the office.

c. The electronic mail pleading shall be stamped filed according to the time and date placed on the electronic mail pleading as received by the office computer and shall be filed in the record upon retrieval from the office computer.

d. If the office electronic mail server fails, the document shall be stamped as of the date actually received in the office.

(c) The original pleading shall be file stamped on the date actually received by the office. The effective date of filing shall be the earlier date of the receipt in the office of either the facsimile, the electronic mail, or the original.

(d) Filing of discovery material.

Except as provided by subparagraph 3 of this paragraph, the following documents shall not be filed with the office unless the hearing officer issues an order otherwise:

a. Interrogatory;

b. Request for production or inspection; and

c. Request for admission.

The party responsible for the service of the discovery material shall retain the original and become the custodian. The custodian shall provide access to any party of record during the pendency of the action.
If a document listed in paragraph (d)1. of this section is to be used at the administrative hearing or in support of a pleading, then the document shall be filed in the office at the beginning of the administrative hearing or at the time the pleading is filed.

(2) Official record.

(a) Each pleading, book, record, paper, or map received in evidence in an administrative hearing or submitted for the record in a proceeding before the office shall be retained in the official record. The replacement of an original document with an accurate photocopy may be permitted while the case is pending upon terms and conditions as may be ordered by the hearing officer.

(b) If a final order of the secretary has been entered, the hearing officer may, upon request and after notice to each party, authorize the replacement of an original document with an accurate photocopy.

(3) Signature and record address.

(a) Contact information. A person who files a pleading in the record shall sign the document and shall state the person's:

Mailing address;
Electronic mail address, if available;
Facsimile number, if available; and
Telephone number.

(b) Change of contact information. If any of the information that is required to be provided in paragraph (a) of this subsection changes, the person shall within fourteen (14) days of the change, file a notice of change of information in the office identifying each case number in which the person has made a filing.

(4) Submission of authority. If a person filing a pleading relies upon a pertinent case decision or other legal authority in the pleading, the person may file with the pleading a copy of the case decision or other legal authority. If the person files a copy of authority, the person shall serve upon each party in the case a copy of the case decision or other legal authority with the pleading.

(5) Format requirements. Each pleading filed with the office shall conform to the requirements established in paragraphs (a) and (b) of this subsection.

(a) Paper size and binding. The pleading shall be on eight and one-half (8 1/2) inches by eleven (11) inches paper stock; and

(b) Type size and style. The document shall be typed in a twelve (12) point font.

(6) Electronic recording and transcript.

(a) An administrative hearing and proceeding before the office shall be electronically recorded.

(b) A digital copy of the electronic recording shall be provided by the office upon request.

(c) The cost of a transcript shall be borne by the requesting party and prepared by a certified court reporter pursuant to a contract between the reporter and the cabinet. The cost of the transcript shall be at the rate established by the contract.

(d) Requirement to file transcript with the office.

Any party who obtains a transcript of a proceeding before the office and who cites to, quotes from or otherwise relies upon that transcript in any pleading filed with the office, shall file a complete copy of the transcript in the record in the office, unless a copy of the transcript was previously filed in the record.
The transcript shall be filed no later than the date upon which the party first cites to, quotes from or relies upon the transcript in any pleading filed with the office.
If the party fails to file the transcript with the office that is cited, quoted, or otherwise relied upon in a pleading, the hearing officer may strike all or part of the pleading that refers to the transcript.

Section 4. Time.

(1) Computation.

(a) In computing any period of time prescribed or allowed by order of the hearing officer or administrative regulation, the day of the act, event, or default after which the designated period of time begins to run shall not be included.

(b) The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period shall run until the end of the next day that is not a Saturday, a Sunday, or a legal holiday.

(c) If the period of time prescribed or allowed is less than seven (7) days, intermediate Saturdays, Sundays, and legal holidays shall be excluded from the computation.

(d) If a person has the right or is required to perform an act within a period prescribed by order of the hearing officer or administrative regulation after the service of a notice or other pleading upon the party and the notice or pleading is served by mail, three (3) days shall be added to the prescribed period. This provision shall not apply to the service of administrative summons and an initiating document by mail.

(2) Extensions of time.

(a) A motion for an extension of time shall be filed within the time allowed for filing the pleading. The hearing officer, upon cause shown, may order the period extended. If the motion is made after the expiration of the time allowed for filing the pleading, the hearing officer may order the period extended if the failure to act was the result of excusable neglect.

(b) The hearing officer shall not extend the time for filing an initiating document pursuant to the applicable statute of limitations, or if the extension is contrary to any other law or administrative regulation.

Section 5. Administrative Summons and Service of Process. The provisions of this section shall not apply to hearings conducted pursuant to KRS Chapter 353. Information related to administrative summons and service of process for hearings conducted pursuant to KRS Chapter 353 shall be as established in Section 24 of this administrative regulation.

(1) Upon receipt of an initiating document, the office shall serve a copy of the initiating document upon each party designated on the initiating document to be served along with an administrative summons. The office shall serve the initiating document in accordance with the method designated on the initiating document and subsection (4) this section.

(2) The administrative summons shall:

(a) Notify the respondent that an initiating document has been filed against the respondent and unless a written defense is timely served, action adverse to the respondent's interest may be taken;

(b) Designate the date, time, and place of the prehearing conference or administrative hearing; and

(c) Include a statement of the legal authority for the administrative hearing and reference to the statutes and administrative regulations involved.

(3) Service shall be made pursuant to one of the methods in subparagraphs (a) through (k) of this subsection.

(a) Individual within the Commonwealth. Service shall be made upon an individual within the Commonwealth, other than an unmarried infant or person of unsound mind, by delivering a copy of the administrative summons and initiating document to the person or, if acceptance is refused, by offering personal delivery to the person, or by delivering a copy of the administrative summons and initiating document to an agent authorized by appointment or by law to receive service of process for the individual.

(b) Unmarried infant or person of unsound mind. Service shall be made upon an unmarried infant or a person of unsound mind by serving the person's resident guardian or committee if there is one (1) known to the initiating party or, if none; by serving either the person's father or mother within this state or, if none, by serving the person within this state having control of the individual. If there are no persons, application shall be made to the appropriate court to appoint a practicing attorney as guardian ad litem who shall be served. If any person directed by this section to be served is also an initiating party, the person who stands first in the order named who is not an initiating party shall be served.

(c) Partnership or unincorporated association. Service shall be made upon a partnership or unincorporated association subject to suit under a common name by serving:

A partner or managing agent of the partnership;
An officer or managing agent of the association; or
An agent authorized by appointment or by law to receive service on its behalf.

(d) Corporation. Service shall be made upon a corporation by serving an officer or managing agent thereof, or any other agent authorized by appointment or by law to receive service on its behalf.

(e) Person issued a permit, registration, or certification from the cabinet. Service shall be made at the address specified in the permit, registration, registration application, certification, or certification application, exploration notice or exploration application pursuant to 405 KAR 8:020 upon:

A person issued a permit, registration, or certification by the cabinet;
A person specified as an operator in the permit; or
The person's named agent for service stated in the permit, registration, registration application, certification, or certification application.

(f) Commonwealth or agency other than the cabinet. Service shall be made upon the Commonwealth or any agency other than the cabinet by serving the attorney general or any assistant attorney general.

(g) Cabinet. Service of a request for an administrative hearing shall be made upon the cabinet by serving the Executive Director of the Office of General Counsel.

(h) County, city, public board, or other administrative body except state agencies.

Service shall be made upon a county by serving the county judge or, if the judge is absent from the county, the county attorney.
Service shall be made upon a city by serving the chief executive officer of the city or an official attorney of the city.
Service on any public board or other administrative body, except state agencies, shall be made by serving a member.

(i) Nonresident. Service may be made upon a nonresident individual who transacts business through an office or agency in this state, or a resident individual who transacts business through an office or agency in any action growing out of or connected with the business of an office or agency, by serving the person in charge.

(j) Out of state individual. Service may be made upon an individual out of this state, other than an unmarried infant, a person of unsound mind or a prisoner, by any method stated in subsection (4) of this section.

(4) Methods of service. The office 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 provided by the initiating party. The office shall employ one (1) of the methods of service in paragraphs (a) through (c) of this subsection as directed by the petitioner on the initiating document in accordance with Section 2(3) of this administrative regulation.

(a) Certified mail.

The office shall affix adequate postage and place the sealed envelope in the United States mail as certified mail return receipt requested.
The office shall 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 office shall file the return receipt or returned envelope in the record;

(b) Personal service.

The office shall cause the envelope to be transferred for service to a person authorized by the secretary or by a statute to deliver it, or to a person authorized to serve an action in a court of law who shall serve the initiating document.
The office shall enter the fact of delivery in the record and make a similar entry when the return receipt from the authorized person is received.
If the return receipt is returned with an endorsement showing failure of delivery, that fact shall be entered in the record. The return receipt shall be proof of the time and manner of service; or

(c) Other method allowed by law. Any other method of service authorized by statute, administrative regulation, or the civil rules for an action in a circuit court of the Commonwealth of Kentucky shall be supplemental to and shall be accepted as an alternative to any of the methods of service specified in subsections (3) or (4) of this section.

(a) Acceptance of the summons by any person eighteen (18) years of age or older at the permanent address;

(b) Refusal to accept the summons by any person at the permanent address;

(c) The United States Postal Service's inability to deliver the certified mail containing the summons if properly addressed pursuant to Section (4) of this section;

(d) Failure to claim the certified mail containing the summons prior to its return to the cabinet by the United States Postal Service; or

(e) To the extent the United States postal regulations, 39 C.F.R., allow authorized representatives of local, state, or federal governmental offices to accept and sign for "addressee only" mail, signature by the authorized representative shall constitute service on the addressee.

Section 6. Service of a Pleading and Discovery Material.

(1) Service is required. Except as provided in subsections (2) or (5) of this section, a party, including a person filing a motion for intervention, shall serve the following pleadings or other documents upon each party in the proceeding:

(a) Every order required by its terms to be served;

(b) Every pleading subsequent to the original initiating document; and

(2) Service requirement for a party in default. If a secretary's order of default has been entered against a party for failure to appear, then that party shall not be required to be served pursuant to subsection (1) of this section. The defaulting party shall only be given notice of a pleading asserting a new or additional claim for relief against the defaulting party by an initiating document and summons issued thereon.

(3) How service is made.

(a) If service is required pursuant to subsection (1) of this section or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney unless service upon the party is ordered by the hearing officer.

(b) Service upon the attorney or upon a party shall be made by delivering a copy to the attorney or party or by mailing it to the attorney's or party's last known address. Delivery of a copy shall include:

Handing it to the attorney or to the party;
Leaving it at the attorney's or party's office with the person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein; or
If the office is closed or the person to be served has no office, leaving it at the attorney's or party's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein.

(c) Service by mail shall be complete upon mailing unless the serving party learns or has reason to know it did not reach the person to be served.

(4) Proof of service.

(a) Proof of the time and manner of service shall be filed in the office before the hearing officer or the party is required to take action.

(b) Proof may be by:

Certificate of a member of the bar;
Affidavit of the person who served the document; or
By any other proof satisfactory to the hearing officer.

(5) Service on numerous respondents. If there are numerous respondents, the hearing officer may designate one (1) respondent for the service of each document.

Section 7. Hearing Officer.

(1) Functions of a hearing officer. An independent hearing officer shall preside at the administrative hearing, shall keep order, and shall conduct the administrative hearing. The hearing officer shall:

(a) Administer oaths and affirmations;

(b) Issue subpoenas in accordance with Section 8 of this administrative regulation;

(d) Rule on procedural requests or similar matters;

(e) Preside over 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) Rule on a motion for summary disposition in accordance with Section 17 of this administrative regulation;

(i) Rule on a motion for directed recommendation in accordance with Section 18 of this administrative regulation;

(j) Issue an order for temporary relief in accordance with 400 KAR 1:110, Section 11 and 400 KAR 1:120, Section 7;

(k) Serve as a mediator in accordance with Section 23 of this administrative regulation;

(l) Take any other action authorized by KRS Chapters 146, 149, 151, 223, 224, 350, 351, 353, and the administrative regulations promulgated pursuant thereto; and

(m) Make or recommend decisions or reports in accordance with KRS Chapters 146, 149, 151, 223, 224, 350, 351, 353, and the administrative regulations promulgated pursuant thereto.

(2) No Authority to Grant Injunctive Relief or a Stay. Notwithstanding the right to grant temporary relief in accordance with 400 KAR 1:110, Section 11 and 400 KAR 1:120, Section 7, a hearing officer shall not have any independent authority to grant injunctive relief or a request for a stay of any statutory, regulatory, or permit requirement.

(3) Ex parte communication.

(a) Except to the extent required for the disposition of an ex parte matter as authorized by law, the hearing officer shall not discuss the merits of an administrative hearing or proceeding with a person identified in subparagraphs 1. through 3. of this paragraph, unless the communication, if oral, is made in the presence of each and every party or their representative, or, if written, is furnished to each party.

A party to the proceeding;
A person interested in the proceeding; or
A representative of a party.

(b) Office personnel involved or who may become involved in the decision making process of an administrative hearing shall not discuss the merits of an administrative hearing or proceeding with a person identified in paragraph (a)1. through 3. of this subsection, unless the communication, if oral, is made in the presence of every other party or their representative, or, if written, is furnished to every party.

(c) The hearing officer and office personnel may discuss the case status or provide advice concerning compliance with a procedural requirement with a person identified in paragraph (a)1. through 3. of this subsection, unless the area of inquiry is in fact an area of controversy in the administrative hearing or proceeding over which the hearing officer is presiding.

(d) An oral communication made in violation of this subsection shall be reduced to writing in a memorandum by the person receiving the communication and shall be included in the record.

(e) A written communication made in violation of this administrative regulation shall be included in the record and a copy of the memorandum or communication shall be provided to each party, who shall be given an opportunity to respond in writing.

(4) Disqualification. The hearing officer shall withdraw from a case if, according to recognized canons of judicial ethics, the hearing officer deems it appropriate. 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 8. Subpoena.

(1) If requested by a party, the hearing officer shall issue a subpoena requiring the attendance of a witness or production of a book, paper, document, or tangible thing designated therein, or both, at an administrative hearing or at the taking of a deposition.

(2) A subpoena shall be issued using OAH 100 or OAH 101.

(3) A subpoena may be served by:

(a) A person who is not less than eighteen (18) years of age; or

(b) Certified mail, return receipt requested.

(4) The original subpoena bearing a certificate of service shall be filed with the office.

(5) The return receipt if signed by the addressee's authorized agent shall constitute proof of service of the subpoena.

Section 9. De Novo Review. An administrative hearing shall be de novo as to all issues of fact and law. A previous final order on the merits shall be binding against each party or any party in privity with the original party to that action in regard to the issues determined by that final order.

Section 10. Right to Counsel, Entry of Appearance, and Notice of Withdrawal.

(1) Right to counsel. A party to an administrative hearing may be represented by counsel. The hearing officer shall permit any party to represent his own interests, except a party that is a corporation or limited liability company shall only be represented by an attorney licensed to practice law in the Commonwealth of Kentucky. The failure of the corporation or limited liability company to appear by counsel, without good cause, shall be grounds for default.

(2) Filing of notice of entry of appearance.

(a) An attorney representing a party before the office shall file a written notice of entry of appearance in each case before the attorney may practice in that case before the office.

(b) The notice of entry of appearance shall set forth the current, complete and correct name, address, telephone number, and facsimile number, if any, and electronic mail address, if any.

(c) An attorney is not required to file a separate notice of entry of appearance if the attorney files a pleading on behalf of attorney's client.

(3) Withdrawal of representation. An attorney of record shall not withdraw from representation in a proceeding before the office without leave of the hearing officer. Leave shall be given unless the hearing officer determines that the withdrawal will result in substantial prejudice or will unduly delay the consideration and resolution of the case.

(4) Filing of notice of change of address. Each party or, if the party is represented, the party's counsel, shall notify the office of any change of address, telephone number, electronic mail address, or facsimile number by filing a notice of change of address in the record within fourteen (14) days of the change.

Section 11. Prehearing Conference. A hearing officer may order a prehearing conference to be held in person or by telephone to:

(1) Simplify and clarify the issue;

(2) Receive a stipulation and admission;

(3) Explore the possibility of agreement to dispose of any issue in dispute; and

(4) Address any motions.

Section 12. Motion Practice.

(1) General provisions.

(a) A request for relief, which is not required to be made in a pleading, shall be in the form of a motion and shall indicate in the caption the nature of the motion.

(b) A motion filed with the office shall state precisely the relief requested, and include a citation to the record, the administrative regulations, or the law as appropriate.

(c) A written motion shall comply with the provisions of this section. Failure to comply with this section may be grounds for denying the motion.

(2) Supporting memorandum.

(a) A motion filed with the office, including a motion to dismiss, a motion for summary disposition, a motion to strike, and a motion on the pleadings, shall be accompanied by a memorandum setting forth the grounds for the motion and shall contain a citation to any authority relied upon.

(b) The memorandum shall be no longer than twenty-five (25) pages in length and may be filed in the office without prior leave of a hearing officer.

(3) Response. Any party served with a motion may file a response memorandum opposing the motion, with a citation to any supporting authority.

(a) A response memorandum shall be filed no later than fifteen (15) days of the date of service of a motion.

(b) The time for filing a response memorandum may be extended once, without leave of the hearing officer, for no more than thirty (30) additional days if each party enters into a written agreement that is filed in the office prior to the deadline for filing the initial response.

(c) A response memorandum longer than twenty-five (25) pages in length shall not be filed in the office without approval of a hearing officer.

(d) A response memorandum shall indicate in its caption that it is a response memorandum.

(4) Reply. Any party served with a response memorandum may file a reply memorandum addressing only the matter initially raised in the response.

(a) A reply memorandum shall be filed no later than five (5) days of the date of service of a response memorandum unless a different reply period is ordered by the hearing officer.

(b) The time for filing a reply memorandum may be extended once without leave of the hearing officer for no more than ten (10) additional days if each party enters into a written agreement that is filed in the office prior to the deadline for filing the initial reply.

(c) A reply memorandum longer than ten (10) pages in length shall not be filed in the office without prior leave of a hearing officer.

(d) A reply memorandum shall indicate in its caption that it is a reply memorandum.

(5) Failure to file supporting memorandum. The hearing officer may find or recommend entry of an order against a party failing to file a supporting memorandum in support of a motion, response or reply.

(6) Proposed order.

(a) A party who files a motion or response shall simultaneously tender a proposed order granting the requested relief or denying the motion.

(b) The office shall not accept for filing a motion or response unless accompanied by a tendered proposed order.

(c) The tendered order shall contain a service page listing the current, correct, and complete names and addresses of each party and counsel of record upon whom the office is required to serve the order.

(d) A party may submit a proposed order in electronic form if accompanied by a hard copy.

(7) Hearing on a motion.

(a) Any party making a motion may request that the motion be heard before the hearing officer.

(b) Upon receipt of the request for a hearing on a motion, the hearing officer may schedule a hearing after the time for all responses and replies pursuant to this section has expired, if the hearing officer determines that oral arguments could provide additional information to form the basis of the ruling.

(c) Court reporter. Any party may arrange for a court reporter to record a hearing on a motion, as long as the party bears the costs.

(d) Failure to appear at hearing. A hearing officer may deny a motion for which the movant who requested the hearing fails to appear. A hearing officer may grant a motion for which a movant requests a hearing and the nonmovant fails to appear, upon proof by the movant filed in the record that the motion was served on the nonmoving party.

Section 13. Motion for Continuance of Formal Administrative Hearing.

(1) The hearing officer shall not grant a motion for continuance unless good cause is shown.

(2) The hearing officer shall not grant a motion for continuance of an administrative hearing if filed within fifteen (15) days of the scheduled date for the administrative hearing unless compelling cause is shown.

Section 14. Motion for Intervention and Consolidation.

(1) Who may file. A person may petition in writing for leave to intervene at any stage of a proceeding. A person shall set forth a statement describing the person's interest 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 person:

Had a statutory right to initiate the proceeding in which the person requests to intervene; or
Has an interest that is or may be adversely affected by the outcome of the proceeding.

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

The nature of the issues;
The adequacy of representation of the person's interest which is provided by the existing parties to the proceeding;
The ability of the person to present relevant evidence and argument; and
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 in a limited capacity. The hearing officer shall determine the extent and terms of the participation, having due regard for the interests of justice and the orderly and prompt conduct of the proceeding. Conditions may include:

(a) Limiting the intervenor's participation to designated issues in which the intervenor has a particular interest demonstrated by the petition;

(b) Limiting the intervenor's use of discovery, cross-examination, and other procedures so as to promote the orderly and prompt conduct of the proceeding; and

(c) Requiring two (2) or more intervenors to combine their presentations of evidence and argument, cross-examination, discovery, and other participation in the proceeding.

(4) Consolidation. If proceedings involving the same parties or a common question of law or fact are pending before the office, the proceedings shall be subject to consolidation pursuant to a motion by a party or upon the initiative of the hearing officer.

Section 15. Dismissal for Failure to Prosecute. Once per year the office shall determine all cases in which no activity has been taken for one (1) year or more. The hearing officer to whom a case is assigned shall issue an order directing the petitioner to show cause why the case should not be dismissed. If the petitioner does not show good cause why the case should not be dismissed, the hearing officer shall recommend dismissal of the case with prejudice for failure to prosecute.

Section 16. Evidence.

(1) Admissibility. Unless specifically excluded by subsection (2) this section, evidence that would otherwise not be admissible under the Kentucky Rules of Evidence may be admitted by the hearing officer, if determined by the hearing officer:

(a) To be necessary to ascertain facts not reasonably susceptible to proof under rules of evidence; and

(b) Is a type commonly relied upon by reasonable and prudent persons in the conduct of their affairs.

(2) The hearing officer shall exclude:

(a) Irrelevant, immaterial, or unduly repetitious evidence from the record;

(b) Evidence designated as confidential by statute; and

(3) An objection may be made by a party and shall be noted in the record by hearing officer.

(4) The hearing officer may require each party to submit any part of the evidence in written form if:

(a) An administrative hearing will be expedited; and

(b) The interests of each party will not be substantially prejudiced.

(5) Documentary evidence may be received in the form of a copy or excerpt. Upon request of any party, each party shall be given an opportunity to compare the copy with the original.

(6) A party may conduct cross-examination as required for a full and true disclosure of the facts.

(7) The hearing officer may take notice of generally recognized technical or scientific facts within the cabinet's specialized knowledge. The hearing officer shall notify each party of the material noticed either before or during the administrative hearing, or by reference in the report and recommended order. Each party shall be afforded an opportunity to contest the material so noticed by the hearing officer.

(8) The cabinet's experience, technical competence, and specialized knowledge may be utilized by the hearing officer in the evaluation of the evidence.

Section 17. 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 procedures shall apply:

(1) The moving party shall verify any allegation of fact with a supporting affidavit, unless the moving party is relying upon:

(a) A deposition,

(b) An answer to an interrogatory,

(d) Any document produced upon request to verify such allegation.

(2) A hearing officer may grant a motion for summary disposition and render a report and recommended order to the secretary under this section if the record shows that:

(a) There is no genuine issue as to any material fact; and

(b) The moving party is entitled to a summary disposition as a matter of law.

(3) 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 and upon examination of all relevant documents and evidence, 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.

Section 18. Directed Recommendation.

(1) At the close of the presentation of evidence by a party at an administrative hearing, the opposing party may move the hearing officer for a directed recommendation to the secretary.

(2) The moving party shall state the specific grounds in support of the request for a directed recommendation.

(3) The hearing officer shall consider all of the evidence presented at the administrative hearing by the nonmoving party and shall draw all inferences in favor of the nonmoving party.

(4) If the hearing officer determines that the nonmoving party has failed to meet his burden of proof, the hearing officer shall:

(a) Grant the moving party's motion; and

(b) Recommend that the secretary deny the nonmoving party's request for relief.

(5) A motion for a directed recommendation is not a waiver of an administrative hearing.

(6) A party who moves for a directed recommendation may move forward and offer evidence to the same extent as if the motion had not been made and without having to reserve the right to offer the evidence.

Section 19. Orders to Abate and Alleviate.

(1) Notice.

(a) If the secretary issues an order to abate or alleviate pursuant to KRS 224.10-410, the secretary shall file a copy of the order in the office.

(b) Upon filing an order to abate or alleviate, the office shall issue an administrative summons pursuant to Section 5 of this administrative regulation and shall set the time and place for an administrative hearing to be held within ten (10) days from the date the order to abate or alleviate was signed by the secretary.

(2) Response.

(a) The person named in the order to abate or alleviate shall prior to or at the administrative hearing file a response to the order that:

Specifically admits or denies the facts alleged in the order;
Sets forth other matters to be considered on review; and
Sets 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 the person does not desire to contest the order.

(3) Hearing procedure. The administrative hearing shall be held in accordance with this administrative regulation.

(4) Burden of proof. The cabinet shall have the burden of going forward to establish a prima facie case as to the propriety of the abate and alleviate order. The person named in the abate and alleviate order shall have the ultimate burden of persuasion that the condition or activity does not violate KRS 224.10-410, or that the condition or activity has been discontinued, abated, or alleviated.

(5) Default. 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 if:

(a) The person named in the order to abate or alleviate notified the office that an administrative hearing is not needed; or

(b) Upon failure of the person to appear at the administrative hearing.

(6) Effect of the proceeding. The scheduling and holding of an administrative hearing pursuant to this section shall not operate to terminate or stay the order or the affirmative obligation imposed on a person by the order.

Section 20. Report and Recommended Order and Any Exception.

(1) Time.

(a) With the exception of paragraph (b) and (c) of this subsection, the hearing officer shall make a report and recommended order to the secretary within thirty (30) days of the close of the record.

(b) In a hearing brought in accordance with 400 KAR 1:110, Section 8, permit determinations, the hearing officer shall make a report and recommended order within twenty (20) days of the close of the record.

(c) If the secretary finds upon written request of the hearing officer that additional time is needed to submit the report and recommended order, the secretary may grant an extension. If granted by the secretary, all parties shall be notified.

(2) Preponderance of the Evidence.

(a) 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.

(b) The report and recommended order may depart from prior interpretations of the law by the cabinet if the hearing officer explicitly and rationally justifies the change of position.

(3) Civil Penalty Determination.

(a) The hearing officer shall recommend the amount of a civil penalty based on the record.

(b) The hearing officer may compute the amount of the penalty to be assessed irrespective of any computation offered by any party.

(c) In actions brought pursuant to 400 KAR 1:110, the hearing officer shall consider the same factors set forth in 400 KAR 1:110, Section 3(2) for consideration in recommending the penalty assessment.

(d) The hearing officer shall state with particularity the reasons, supported by the record, for the penalty recommended in the report and recommended order.

(4) Mailing. The report and recommended order shall be mailed, postage prepaid, to each party and the party's attorney of record.

(5) Exceptions. A party may file an exception and a response to the exception as allowed pursuant to KRS 149.346, 151.184, 224.10-440, 350.0301, and 353.700. There shall be no further submissions in the record.

(a) Each exception and response shall conform to the format for filing a document in Section 3 of this administrative regulation.

(b) A party filing an exception to a report and recommended order shall tender with the exception a draft recommended order for the secretary.

The excepting party's draft recommended order shall set out the relief the party requests in its exception.
The draft recommended order shall contain a service page listing the current, correct, and complete name and address of each party and counsel of record upon whom the office shall be required to serve the order.
A party may submit a draft recommended order in electronic form if accompanied by a hard copy.

(c) Good cause exception. The secretary may exempt a party from compliance with paragraphs (a) and (b) of this subsection upon a showing of good cause or undue hardship.

Section 21. Secretary's Order.

(1) The secretary shall consider the hearing officer's report and recommended order, any exception filed, and response to any exception if permitted by statute, and decide the case within the time period required by statute.

(2) The secretary may:

(a) Remand the matter to the hearing officer;

(b) Adopt the report and recommended order of the hearing officer as a final order;

(d) Reject the report and recommended order of the hearing officer and issue a final order.

(3) The final order of the secretary shall be mailed postage prepaid to each party and the party's attorney of record.

(4) 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.

(5) The final order may depart from prior interpretations of the law by the cabinet if the secretary explicitly and rationally justifies the change of position.

Section 22. Agreed Order. An agreed order that resolves any claim or part of a claim in a case pending in the office shall be tendered to the hearing officer for acknowledgment by signature before being presented to the secretary.

Section 23. Mediation.

(1) Referral to mediation.

(a) At any time prior to the conclusion of the final prehearing conference, a hearing officer may issue an order referring all or any part of any case to nonbinding mediation.

(b) A case shall not be referred for mediation if the cabinet advises the hearing officer that mediation would require a deviation from a statutory or regulatory requirement.

(2) Mediator.

(a) A case may be referred to any hearing officer employed by the office or a mediator approved by the chief hearing officer.

(b) The mediator shall notify the hearing officer in writing when a case is not accepted for mediation.

Any party may move the hearing officer to enter an order disqualifying the mediator for good cause. Employment by the cabinet shall not constitute good cause for the disqualification.
If the hearing officer rules that a mediator is disqualified from mediating the case, the hearing officer shall enter an order referring the matter to another mediator.
Nothing in this provision shall preclude a mediator from disqualifying himself or refusing any assignment.
Unless the hearing officer orders otherwise, the time for mediation shall be tolled during any periods in which a motion to disqualify is pending.

(3) Statements not admissible. Statements or admissions made for the purpose of mediation shall not be:

(a) Subject to disclosure through discovery;

(b) Admitted in evidence at an administrative hearing; or

(4) Proceeding not stayed. Unless otherwise ordered by the hearing officer or agreed to in writing by the parties, the mediation shall not operate as a stay of discovery or other prehearing proceeding.

(5) Mediation conference.

(a) Mediation status conference. In the mediation referral order, the hearing officer shall schedule a mediation status conference to be held within thirty (30) days from the entry of the mediation referral order unless otherwise agreed to in writing by the parties.

(b) Scheduling a Mediation Conference.

The mediator shall schedule a mediation conference within thirty (30) days of the mediation status conference unless otherwise agreed to by the parties.
The mediator may schedule as many conferences as are necessary to complete the process of mediation.

(c) Purpose of the mediation conference. The conference shall be conducted by the mediator to consider the possibility of settlement, the simplification of each issue, and any other matter that the mediator and each party determines may aid in the handling or the disposition of the proceeding.

(d) Appearance at mediation conference.

Each party or a representative of the party, having authority to negotiate on behalf of that party, shall attend the mediation.
Counsel may also be present.

(e) Production of a document and witness. The mediator may request that a party bring a document or witness, including an expert witness, to the mediation conference, but shall not have authority to order production.

(f) The mediation conference shall continue until:

A settlement is reached;
Any party is unwilling to proceed further; or
The mediator determines that further efforts would be of no avail.

(6) Reporting to the hearing officer.

(a) After the conclusion of the first mediation conference, any party may move the hearing officer to remove the case from mediation and to set the case for a prehearing conference or an administrative hearing.

(b) If any party is unwilling to proceed further or if the mediator determines that further efforts would be of no avail, then the mediator shall file a report to the hearing officer that the mediation process has ended. The report shall state the lack of an agreement and shall not make other comment or recommendation.

Full Settlement.

a. Within ten (10) days of the conclusion of mediation, file with the office a joint statement that all issues have been resolved; and

b. Promptly prepare and submit to the hearing officer an agreed order reflecting the terms of the settlement in accordance with Section 22 of this administrative regulation.

Partial settlement.

a. If some but not all of the issues in the case are settled during mediation or if an agreement is reached to limit discovery or on any other matter, the attorney for one (1) party shall, within ten (10) days of the conclusion of mediation, file with the office a joint statement listing the issues that have been resolved and the issues that remain for an administrative hearing.

b. The hearing officer shall then return the matter to the active docket and promptly schedule a prehearing conference or an administrative hearing.

(7) This section shall not apply to mediations conducted pursuant to KRS 353.5901.

Section 24. Administrative Summons and Service of Process for Hearings Pursuant to KRS 353.

(2) The administrative summons shall:

(a) Notify the respondent that:

An initiating document has been filed against the respondent; and
Unless a written defense is timely served, the respondent shall be subject to action adverse to the respondent's interest;

(b) Designate the date, time, and place of the prehearing conference or administrative hearing; and

(c) Include a statement of the legal authority for the administrative hearing and reference to the statutes and administrative regulations involved.

(3) Service shall be made pursuant to one (1) of the methods established in subparagraphs (a) through (k) of this subsection and subsection (4) of this section.

(a) Individual within the Commonwealth. Service shall be made upon an individual within the Commonwealth, other than an unmarried infant or person of unsound mind, by mailing a copy of the administrative summons to the last known address of record with the Division of Oil and Gas.

(b) Unmarried infant or person of unsound mind. Service shall be made upon an unmarried infant or a person of unsound mind by serving the person's resident guardian or committee if there is one (1) known to the initiating party or, if none, by serving either the person's father or mother within this state or, if none, by serving the person within this state having control of the individual. If there are no persons, application shall be made to the appropriate court to appoint a practicing attorney as guardian ad litem who shall be served. If any person directed by this section to be served is also an initiating party, the person who stands first in the order named who is not an initiating party shall be served.

(c) Partnership or unincorporated association. Service shall be made upon a partnership or unincorporated association subject to suit under a common name by serving:

A partner or managing agent of the partnership;
An officer or managing agent of the association; or
An agent authorized by appointment or by law to receive service on its behalf.

(d) Corporation. Service shall be made upon a corporation by serving an officer, managing agent thereof, or any other agent authorized by appointment or by law to receive service on its behalf.

(e) Person issued a permit, license, or authorization from the cabinet. Service shall be made at the address specified in the permit application, license, or request for authorization upon:

A person issued a permit, license, or authorization by the cabinet;
A person specified as an operator in the permit application, license, or request for authorization; or
The person's named agent for service stated in the permit application, license, or request for authorization.

(f) Commonwealth or agency other than the cabinet. Service shall be made upon the Commonwealth or any agency other than the cabinet by serving the attorney general or any assistant attorney general.

(g) Cabinet. Service of a request for an administrative hearing shall be made upon the cabinet by serving the Executive Director of the Office of Legal Services.

(h) County, city, public board, or other administrative body except state agencies.

Service shall be made upon a county by serving the county judge or, if the judge is absent from the county, the county attorney.
Service shall be made upon a city by serving the chief executive officer of the city or an official attorney of the city.
Service on any public board or other administrative body, except state agencies, shall be made by serving a member.

(j) Out of state individual. Service may be made upon an individual out of this state, other than an unmarried infant, a person of unsound mind or a prisoner. If the service is made, it shall be made as established in subsection (4) of this section.

(k) Unknown person. In an action against a person whose name is unknown to the initiating party, the person shall be described in the initiating document and administrative summons as unknown party. If the person's name or place of residence is discovered during the action, then the initiating document shall be amended accordingly. Any party to the action that was required to give notice to any unknown or nonlocatable owner pursuant to KRS 353, shall provide proof to the office that it gave notice consistent with the requirements of KRS 353.510(45).

(4) Method of service. The office 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 provided by the initiating party. The office shall employ certified mail as the method of service in accordance with Section 2(3) of this administrative regulation.

(a) The office shall affix adequate postage and place the sealed envelope in the United States mail as certified mail return receipt requested.

(b) The office shall enter the fact of mailing in the record and make a similar entry once 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.

(5) Proof of service. The return receipt shall be proof of acceptance, refusal, inability to deliver, or failure to claim the document. The return receipt shall also be proof of the time, place, and manner of service. The date of delivery shall be the earlier of the date shown on the certified mail return receipt or the date thirty (30) days after the date shown on the postal service proof of mailing. Service shall be effective upon:

(a) Acceptance of the summons by any person eighteen (18) years of age or older at the permanent address;

(b) Refusal to accept the summons by any person at the permanent address;

(c) The United States Postal Service's inability to deliver the certified mail containing the summons if properly addressed pursuant to Section (4) of this section;

(d) Failure to claim the certified mail containing the summons prior to its return to the cabinet by the United States Postal Service; or

Section 25. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "Subpoena", OAH 100, November 2016; and

(b) "Subpoena Duces Tecum", OAH 101, November 2016.

(2) This material may be inspected, copied, or obtained, at the Office of Administrative Hearings, 211 Sower Boulevard, 2nd Floor, Frankfort, Kentucky 40601, 8 a.m. to 4:30 p.m., Monday through Friday.

(3) This material may also be obtained on the office Web site at www.oah.ky.gov.

History

RELATES TO: KRS 146.200-146.360, 146.450, 146.530, 146.990, 149.344, 149.346, 149.348, 151.125, 151.182, 151.184, 151.297, 151.990, Chapters 223, 224, 350.028, 350.029, 350.0301, 350.0305, 350.032, 350.060, 350.070, 350.085, 350.090, 350.093, 350.130, 350.240, 350.255, 350.300, 350.305, 350.465, 350.610, 350.990, 351.315, 351.345, 351.350, 353.060, 353.200, 353.590, 353.5901, 353.620, 353.630, 353.640, 353.700, 30 C.F.R. Parts 724, 730, 731, 732, 733, 735, 917, 39 C.F.R., 30 U.S.C. 1253, 1255
STATUTORY AUTHORITY: KRS 146.270, 146.450, 146.990, 149.344, 149.346, 151.125, 151.182, 151.184, 151.186, 151.297, 223.200, 223.991, 224.10-100, 224.10-410, 224.10-420, 224.10-430, 224.10-440, 224.40-310, 224.60-120, 350.020, 350.028, 350.029, 350.0301, 350.0305, 350.240, 350.255, 350.300, 350.465, 350.610, 351.315, 351.345, 351.350, 353.700, 30 C.F.R. Parts 724, 730, 731, 732, 733, 735, 917, 30 U.S.C. 1253, 1255
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapters 146, 149, 151, 223, 224, 350, 351, and 353 authorize the cabinet to conduct administrative hearings and authorize the cabinet to promulgate administrative regulations to regulate the administrative hearing process. This administrative regulation establishes procedures for conducting administrative hearings, administrative conferences, mediations, and issuance of final orders in regard to violations and final determinations of the cabinet made pursuant to KRS Chapters 146, 149, 151, 223, 224, 350, and 353.
History: 400 KAR 001:090. 21 Ky.R. 720; 1095; 1463; eff. 12-12-1994; 43 Ky.R. 1855, 2164; 44 Ky.R. 61; eff. 8-4-2017; TAm eff. 5-4-2018; 45 Ky.R. 439; eff. 10-4-2018; Crt eff. 10-1-2025.

400 KAR 1:100 General administrative hearing practice provisions relating to matters brought under KRS Chapters 146, 149, 151, 223, 224, and 353 {#sec-400-kar-1-100 omnilex-key=us-ky-regs-official--title-400--400 KAR 1:100}

Section 1. Applicability.

(1) This administrative regulation shall govern:

(a) 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 matters initiated by a petition for hearing filed on or before August 4, 2017; and

(b) The conduct by the cabinet of all administrative hearings authorized by KRS Chapter 353 relating to oil and gas development, except for those conducted by the Kentucky Oil and Gas Conservation Commission pursuant to KRS 353.500 to 353.720.

(2) This administrative regulation governs an administrative hearing, an order, and a final determination of the cabinet.

Section 2. Location of Administrative Hearing. An administrative hearing shall be held in Frankfort at the location designated by the hearing officer unless an alternative location is agreed to by each party or authorized by KRS 224.40-310(5)(e) or KRS Chapter 353.

Section 3. Administrative Hearing Initiated by the Cabinet.

(1) Criteria for filing. The cabinet may initiate an administrative hearing and may seek a remedy identified in subsection (2) of this section if:

(a) The cabinet has reason to believe that a violation of:

KRS Chapters 146, 149, 151, 223, 224, or 353;
KAR Titles 400, 401, 402, or 805 KAR Chapter 1; or
An administrative regulation, a permit, registration, or certification condition has occurred or is occurring; or

(b) The cabinet has reason to believe a remedy 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 one (1) or a combination of the following:

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

(b) Bond and other financial assurance forfeiture;

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

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

(f) Any other relief to which the cabinet may be entitled by KRS Chapters 146, 149, 151, 223, 224, 353, KAR Titles 400, 401, 402, and 805 KAR Chapter 1.

(3) Procedure for an administrative hearing initiated by the cabinet.

(a) The cabinet shall initiate an administrative hearing by filing an administrative complaint with the office incorporating the following for each claim for relief:

A statement of facts entitling the cabinet to administrative relief;
A request for specific relief; and
A copy of any notice or order upon which relief is sought.

(b) Answer or responsive pleading.

The respondent shall file with the office an answer or responsive pleading within thirty (30) days of service of the administrative complaint.
The answer shall contain:

(i) A statement specifically admitting or denying the facts stated in the administrative complaint or amended administrative complaint; or

(ii) If the person is without knowledge or information sufficient to form a belief as to the truth of an allegation, then the person shall so state and it shall have the effect of a denial;

b. Any defense to each claim for relief; and

c. Any other matter to be considered on review.

Failure to plead any available administrative affirmative defense in a required answer or responsive pleading may constitute a waiver of the defense, except that lack of jurisdiction over the subject matter and failure to state a claim upon which relief can be granted shall not be waived by failure to assert them in a responsive pleading.
An allegation in a pleading to which no answer or responsive pleading is required or permitted shall be taken as denied or avoided.
An allegation in a pleading to which an answer or responsive pleading is required may be deemed admitted if not denied in the answer or responsive pleading.

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 respondent shall have ten (10) days from the filing of an amended administrative complaint or the time remaining for filing an answer to the original complaint, whichever is longer, to file an answer or responsive pleading to the amended administrative complaint.
If the hearing officer grants a motion to amend the administrative complaint, the hearing officer shall set the time for an answer to be filed in the order granting the motion.

(4) Burden of proof.

(a) The cabinet shall bear the ultimate burden of persuasion.

(b) A respondent shall have the burden of persuasion to establish an affirmative defense.

(5) Default.

(a) If 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, on his own initiative 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 4. Review of a Cabinet Order and Final Determination.

(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. The petition for review shall be filed pursuant to this section. This section also applies to a petition for review of a draft permit for construction or expansion of a waste disposal facility, made pursuant to KRS 224.40-310(6), if the expansion results in substantial additional capacity.

(2) Time for filing.

(a) A person filing a petition for review under this section shall file in the office a petition within thirty (30) days after the person has had actual notice of the order or final determination complained of, or could reasonably have had notice.

(b) The hearing officer shall not grant an extension of time for filing a petition for review.

(c) If the hearing officer, upon motion or his own initiative, finds that the person failed to timely file the petition for review in accordance with this section, the hearing officer shall issue a report recommending dismissal of the petition. The secretary shall dismiss a petition that is not filed in accordance with subsection (2)(a) of this section stating that the person waived his right to an administrative hearing.

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

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

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

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

(e) If the petition challenges an order or final determination other than a permit, a copy of the order or final determination sought to be reviewed.

(4) Answer or responsive pleading.

(a) The respondent shall file with the office an answer or responsive pleading within thirty (30) days of service of the petition.

(b) The answer shall contain:

a. A statement specifically admitting or denying the facts stated in the petition or amended petition; or

b. If the person is without knowledge or information sufficient to form a belief as to the truth of an allegation, then the person shall so state and it shall have the effect of a denial;

Any defense to each claim for relief; and
Any other matter to be considered on review.

(c) Failure to plead any available administrative affirmative defense in a required answer or responsive pleading may constitute a waiver of the defense, except that lack of jurisdiction over the subject matter and failure to state a claim upon which relief can be granted shall not be waived by failure to assert them in an answer or responsive pleading.

(d) An allegation in the petition to which no answer or responsive pleading is required or permitted shall be taken as denied or avoided.

(e) An allegation in the petition to which an answer or responsive pleading is required may be deemed admitted if not denied in the answer or responsive pleading.

(5) Amended petition.

(a) 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.

(b) The respondent shall have ten (10) days from the filing of an amended petition or the time remaining for filing an answer to the original petition, whichever is longer, to file an answer or responsive pleading to the amended petition.

(c) If the hearing officer grants a motion to amend the petition, the hearing officer shall set the time for an answer to be filed in the order granting the motion.

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

(7) Burden of proof.

(a) 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.

(b) A responding party shall have the burden of persuasion to establish an affirmative defense.

(c) A responding party claiming an exemption shall have the burden of persuasion to establish qualification for the exemption.

(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 the petitioner should not be deemed to have waived the right to an administrative hearing and why the 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 dismissing the petition since the petitioner waived the right to an administrative hearing.

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

Section 5. Procedure for an Order for Remedy under KRS 151.297.

(1) Notice.

(a) If the secretary issues an order for remedy pursuant to KRS 151.297, the secretary shall file a copy of the order for remedy in the office.

(b) Upon the filing of an order for remedy, the office shall issue an administrative summons pursuant to 400 KAR 1:090, Section 5 and shall set the time and place for an administrative hearing. The office may schedule the administrative hearing within five (5) working days from the date the order for remedy was signed by the secretary.

(2) Response.

(a) Unless paragraph (b) of this subsection applies, the person named in the order for remedy prior to or at the administrative hearing shall file a response to the order that:

Specifically admits or denies the facts alleged in the order;
Sets forth other matters to be considered on review; and
Sets 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 the person does not desire to contest the order.

(3) Hearing procedure. The administrative hearing shall be held in accordance with 400 KAR 1:090.

(4) 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.

(5) Default. The hearing officer shall prepare a report stating that the hearing was waived and the order for remedy stands as issued if:

(a) The person named in the order for remedy notified the office that an administrative hearing is not needed; or

(b) The person failed to appear at the administrative hearing.

(6) Effect of the proceeding. The scheduling and holding of an administrative hearing pursuant to this section shall not operate to terminate or stay the order for remedy or the affirmative obligations imposed on a person by the order.

Section 6. Judicial Review, Effect, and a Subsequent Proceeding.

(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, 224.10-470, or 353.700, as applicable.

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

(3) Remand from a court. If a matter is remanded from a court for a further proceeding, and to the extent the court's directive and time limitations will permit, each party shall file with the office a report recommending the procedure to be followed in order to comply with the court's order. The hearing officer shall review each report and enter a special order governing the handling of the matter remanded for a further proceeding.

Section 7. Requirement to File Written Direct Testimony and Its Use in an Administrative Proceeding Subject to KRS 224.10-440. In proceedings subject to KRS 224.10-440:

(1) In addition to the provisions of 400 KAR 1:090, Section 16(4), pertaining to the admission of written testimony, the hearing officer may require 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.

(2) The hearing officer may require written testimony to be supplemented by additional evidence.

(3) 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.

(4) 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.

(5) 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.

(6) If a witness fails to verify his 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 each party agrees otherwise.

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

(8) 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.

(9) Each party shall have a reasonable opportunity prior to the formal administrative hearing to:

(a) Object to all or portions of any written testimony and any accompanying exhibit; and

(b) Obtain a ruling on objections to written testimony or exhibits prior to their introduction at the administrative hearing.

(10) 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 8. Administrative Proceedings Subject to KRS 224.10-440.

(1) Waiver.

(a) In proceedings subject to KRS 224.10-440, if each party agrees to waive the deadline of KRS 224.10-440(3), a waiver agreement executed by each party or the party's counsel shall be filed in the office.

(b) 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.

(2) Motion for extension of time.

(a) 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 a motion for extension that includes a proposed date certain by which the report and recommended order shall be completed.

(b) The motion for extension shall be filed 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.

(c) A party or hearing officer objecting to the extension shall file any response in opposition to the motion within seven (7) calendar days from receipt of the motion. The mail rule provisions set forth in 400 KAR 1:090, Section 4(1)(d) shall not be applicable in calculating the deadline for filing the response.

(d) Upon expiration of the time period for a motion and a response to the motion, the office shall tender the motion and any response to the secretary or the secretary's designee.

(e) The secretary or the secretary's designee shall rule on the motion within ten (10) days from expiration of the time period for filing an objection to any motion for extension.

Section 9. Confidentiality in Administrative Hearings Subject to KRS Chapter 353. In all proceedings conducted pursuant to KRS Chapter 353, the hearing officer may, upon motion by any party, order that evidence be filed in the record under seal. The hearing officer shall grant the motion only if the moving party makes a sufficient demonstration that the offered evidence qualifies for protection pursuant to KRS 353.660 or KRS 353.6603 to KRS 353.6606.

(1) Disclosure of sealed evidence by any party to nonparties, including requests made pursuant to KRS 61.872, shall be prohibited. With the exception of the party that originally offered sealed material into evidence, any other party that causes the intentional disclosure of sealed evidence to nonparties may be subject to an action filed by the nondisclosing party in Franklin Circuit Court seeking recovery of reasonable expenses, including attorney's fees, caused by the disclosure.

(2) Upon request, any party to the proceeding may inspect the sealed evidence during the regular office hours of the office. The evidence shall not be removed from the premises, and the duplication or transmittal of sealed materials shall be prohibited. Inspections shall be at all times supervised and limited to authorized party representatives, legal counsel, and retained expert witnesses who have been previously identified in administrative filings by the party. The office shall keep a log of all persons who inspect records, including a photocopy of the inspecting person's driver's license or other government issued identification card. If the record has been submitted on appeal, the reviewing party shall make appropriate arrangements with the court.

(3) The hearing officer shall later unseal the evidence when the applicable confidentiality period allowed under KRS 353.660 has expired, or if the evidence is determined to be a trade secret, it shall be unsealed pursuant to KRS 353.6604(3).

(4) Nothing in this section shall prevent the hearing officer, secretary, commission, or reviewing court from considering the entire record of a case before it, though sealed evidence shall be viewed in camera and shall not be unsealed unless:

(a) The confidentiality period has ended; or

(b) A court of law determines the application of KRS 353.660 or KRS 353.6603 to KRS 353.6606 to the evidence was erroneous.

(5) Testimony pertaining to evidence under seal shall be closed to the public and subject to the same confidentiality period as the evidence being discussed. The record of closed testimony shall be put under seal and kept separate from the public record until the confidentiality period expires.

(6) To the extent the hearing officer bases their findings and conclusions on sealed evidence, the hearing officer's report and recommended order shall sufficiently describe the nature of the evidence without disclosing confidential or proprietary information.

Section 10. Review of a Cabinet Determination Pursuant to KRS 353.060.

(1) Who may file. An owner or coal operator who determines the proposed location of well will endanger the present or future use or operation of the workable coal bed. The petition for review shall be filed pursuant to this section.

(2) Time for filing.

(a) A person filing a petition for review under this section shall file in the office a petition within fifteen (15) days from the receipt of the plat by him and by the Department for Natural Resources for the proposed location of the well.

(b) The hearing officer shall not grant an extension of time for filing a petition for review.

(c) If the hearing officer, upon motion or his or her own initiative, finds that the person failed to timely file the petition for review in accordance with this section, the hearing officer shall issue a report recommending dismissal of the petition. The secretary shall dismiss a petition that is not filed in accordance with subsection (2)(a) of this section stating that the person waived the right to an administrative hearing.

(3) Content of the petition. The petition for review shall contain the specific objections to the proposed location of the well.

(4) Answer or responsive pleading. The respondent shall file with the office an answer or responsive pleading within thirty (30) days of service of the petition.

(5) Determination by the hearing officer.

(a) At the hearing, the well operator and the coal operator or owner, in person or by a representative, shall consider the objections and either agree upon the location as proposed or change it so as to satisfy any or all objections and meet the approval of the department. Any new location thus selected and agreed upon shall be indicated on a plat in accordance with KRS 353.050, and the department shall issue to the well operator a drilling permit approving the location and authorizing the well operator to drill at the location.

(b) If the coal operator and well operator, or the owner and the well operator, are unable to agree, the hearing officer shall make a recommendation to the secretary, in view of the purposes and intent of KRS Chapter 353, to fix a location on the tract as near the proposed location as possible.

(6) Default.

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

(c) If the petitioner fails to appear at an administrative hearing, the petitioner shall be deemed to have waived the right to an administrative hearing and the hearing officer shall recommend to the secretary the entry of a final order dismissing the petition because the petitioner waived the right to an administrative hearing.

History

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, 353
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, 353.660, 353.6603, 353.6604, 353.6605, 353.6606
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, KRS Chapter 224 relating generally to environmental protection, and KRS Chapter 353 related to oil and gas development authorize the cabinet to conduct administrative hearings and promulgate administrative regulations. This administrative regulation establishes procedures for conducting administrative hearings.
History: 400 KAR 001:100. 43 Ky.R. 1902; 44 Ky.R. 71; eff. 8-4-2017; 45 Ky.R. 448; eff. 10-4-2018; Crt eff. 10-1-2025.

400 KAR 1:110 Administrative hearings relating to matters brought under KRS Chapter 350 or KRS 351.310 through 351.375 {#sec-400-kar-1-110 omnilex-key=us-ky-regs-official--title-400--400 KAR 1:110}

Section 1. Definitions.

(1) "Applicant" is defined by 405 KAR 7:001.

(2) "Application" is defined by 405 KAR 7:001.

(3) "Cessation order" is defined by 405 KAR 7:001.

(4) "Coal" is defined by 405 KAR 7:001.

(5) "Coal exploration" is defined by 405 KAR 7:001.

(6) "Department" is defined by KRS 351.310(7).

(7) "Knowingly" is defined by 405 KAR 7:001.

(8) "Notice of noncompliance and order for remedial measures" is defined by 405 KAR 7:001.

(9) "Operations" is defined by KRS 350.010(6).

(10) "Operator" is defined by KRS 350.010(8).

(11) "Permit" is defined by 405 KAR 7:001.

(12) "Permit area" is defined by 405 KAR 7:001.

(13) "Permittee" is defined by KRS 350.010(21).

(14) "Reclamation" is defined by KRS 350.010(12).

(15) "Secretary" is defined by KRS 350.010(11).

(16) "Significant, imminent environmental harm" is defined by 405 KAR 7:001.

(17) "Surface coal mining and reclamation operations" is defined by KRS 350.010(3).

(18) "Transfer, assignment, or sale of permit rights" is defined by 405 KAR 7:001.

(19) "Willfully" and "willful violation" is defined by 405 KAR 7:001.

Section 2. Applicability. This administrative regulation shall govern the conduct by the cabinet of all administrative hearings:

(1) And conferences arising under KRS Chapter 350 relating to surface coal mining and reclamation operations and coal exploration operations, including those matters initiated by a petition for hearing filed on or before August 4, 2017; and

(2) Authorized by KRS Chapter 351 relating to explosives and blasting operations.

Section 3. Proposed Penalty Assessment and Request for Assessment Conference and Administrative Hearing.

(1) Notification. The cabinet shall notify a person issued a notice of noncompliance and order for remedial measures or a cessation order in writing of the cabinet's proposed penalty assessment. The proposed penalty assessment shall be made by authorized personnel of the department.

(2) Criteria. The department, in determining the amount of the proposed penalty assessment, shall give consideration to:

(a) History of previous violations of the permittee or operator at the particular surface coal mining and reclamation operation;

(b) The seriousness of the violation, including any irreparable harm to the environment and any hazard to the health or safety of the public;

(d) The demonstrated good faith of the permittee, operator, or person in attempting to achieve rapid compliance after notification of the violation, except that good faith consideration shall not be applicable to any violation determined not to be correctable.

(3) Service method; time.

(a) The department shall serve the notice of proposed penalty assessment along with copies of applicable worksheets, to the person to whom the notice or order was issued within fifteen (15) working days after issuance of the final notice of inspection of noncompliance or final notice of inspection of cessation order.

(b) The department shall serve the notice of proposed penalty assessment by utilizing one (1) of the following:

A service method established in 400 KAR 1:090, Section 5(3) and (4); or
Electronic mail pursuant to KRS 350.130.

(c) Service shall be deemed effective pursuant to 400 KAR 1:090, Section 5(5) or upon delivery of the notice of proposed penalty assessment with copies of worksheets to the recipient's inbox by electronic mail as electronically communicated to the department by an electronic registered receipt.

(d) Failure to serve the proposed penalty assessment within fifteen (15) working days after issuance of the final notice of inspection of noncompliance or final notice of inspection of cessation order shall not be grounds for dismissal of all or part of the assessment unless:

The person against whom the proposed penalty has been assessed proves actual and substantial prejudice as a result of the delay; and
The person makes a timely written objection to the delay on or before the last date to request an assessment conference under subsection (4)(b) of this section.

(4) Options of person issued notice of proposed penalty assessment.

(a) Waiver of rights to challenge proposed penalty assessment if no petition was filed challenging the fact of the violation.

The person shall notify the department that the person elects not to contest the proposed penalty assessment.
If the person did not file a timely petition requesting an administrative hearing as to the fact of the violation pursuant to Section 7 of this administrative regulation, then the secretary shall issue a final order finding that:

a. The person to whom the notice of noncompliance and order for remedial measures or cessation order was issued has waived all rights to an administrative hearing on the amount of the proposed assessment;

b. The fact of the violation is deemed admitted; and

c. The proposed penalty is due and payable within thirty (30) days after the entry of the final order.

(b) Waiver of rights to challenge penalty assessment and the person filed a petition challenging the fact of the violation.

The person shall notify the department that the person elects not to contest the proposed penalty assessment.
If the person filed a timely petition requesting an administrative hearing as to the fact of the violation pursuant to Section 7 of this administrative regulation, then the secretary shall issue a final order finding that:

b. The proposed penalty is due and payable within thirty (30) days of the mailing of a final order affirming the fact of the violation.

(c) Request for an assessment conference. The person shall request in writing an assessment conference within thirty (30) days:

Of receipt of the notice of proposed penalty assessment; or
From the date the notice of proposed penalty assessment is returned to the department as undeliverable, unclaimed or refused.

(d) Petition for administrative hearing.

The person shall contest the proposed penalty assessment or the fact of the violation by submitting a petition for an administrative hearing in accordance with Section 6 or 7 of this administrative regulation, or contest both by filing a petition for an administrative hearing in accordance with Sections 6 and 7.
The fact of the violation shall not be contested if it has been adjudicated by a final order of the secretary pursuant to an administrative hearing commenced under Section 7 of this administrative regulation.

(5) Failure to Request a Penalty Assessment Conference. If a person issued a proposed penalty assessment fails to request in writing an assessment conference in a timely manner as set forth in subsection (4)(c) of this section or has not filed a timely petition in accordance with Section 6 of this administrative regulation, then the cabinet shall consider the failure to request an assessment conference a waiver of the person's right to a conference. The secretary shall enter a final order pursuant to paragraph (a) or (b) of this subsection.

(a) If the person did not file a timely petition requesting an administrative hearing as to the fact of the violation pursuant to Section 7 of this administrative regulation, then the secretary shall issue a final order finding that:

The person to whom the notice of noncompliance and order for remedial measures or cessation order was issued has waived all rights to an administrative hearing on the amount of the proposed assessment;
The fact of the violation shall be deemed admitted; and
The proposed penalty shall be due and payable within thirty (30) days after the entry of the final order.

(b) If the person filed a timely petition requesting an administrative hearing as to the fact of the violation pursuant to Section 7 of this administrative regulation, then the secretary shall issue a final order finding that:

The person to whom the notice of noncompliance and order for remedial measures or cessation order was issued has waived all rights to an administrative hearing on the amount of the proposed assessment; and
The proposed penalty shall be due and payable within thirty (30) days of the mailing of a final order affirming the fact of the violation.

Section 4. Procedures for Assessment Conference.

(1) Date and location of conference; failure to timely schedule; substantial prejudice.

(a) If an assessment conference is requested, the cabinet shall schedule the assessment conference within sixty (60) days after the cabinet's receipt of the request, unless all parties agree otherwise.

(b) An assessment conference shall be held in the department's regional office of the mine site subject to the proposed penalty assessment unless the parties agree otherwise.

If all the parties or their counsel request to participate by telephone or other electronic means, then the conference officer may hold the assessment conference telephonically or by any other electronic means agreed to by the parties.
Any person who attends the assessment conference in person at the department's regional office shall have access to the telephonic conference line or the electronic means utilized during the assessment conference.

(c) Failure by the cabinet to timely schedule an assessment conference shall not be grounds for dismissal of all or part of an assessment unless the person against whom the proposed penalty has been assessed makes a timely objection on or before the date of the assessment conference and proves actual and substantial prejudice as a result of the delay.

(d) The scheduling of the assessment conference shall not operate as a stay of any notice of noncompliance and order for remedial measures or cessation order.

(2) Service; public participation.

(a) The cabinet shall serve notice of the assessment conference by mail, postage prepaid.

(b) The cabinet shall also send a copy of the notice of the assessment conference to any person who filed a report that led to the issuance of the notice of noncompliance and order for remedial measures or cessation order being contested.

(c) The cabinet shall post notice of the assessment conference at the department's regional office of the mine site subject to the proposed penalty assessment at least five (5) days before the assessment conference.

(d) Any person shall have the right to attend and participate in the assessment conference.

(3) Conference officer; requirements for administrative hearings not applicable. The office shall assign a conference officer to hold the assessment conference. The assessment conference shall not be governed by the requirements for administrative hearings in 401 KAR 1:090 or by the provisions of 400 KAR 1:040.

(4) Report of conference officer. The conference officer shall consider all relevant information pertaining to the proposed penalty assessment. Within thirty (30) days after the assessment conference is held, the conference officer shall issue a report recommending to the secretary to either affirm, raise, lower, or dismiss the proposed penalty assessment.

(5) Service of report; documentation. The conference officer's report shall be served by mail, postage prepaid, and shall include a worksheet if the penalty has been raised or lowered. The reasons underlying the conference officer's report shall be fully documented.

(6) Failure to attend; report to issue. If the person requesting an assessment conference fails to attend the scheduled assessment conference, the assessment officer shall within thirty (30) days of the date of the scheduled assessment conference issue a report to the secretary recommending that the proposed penalty assessment be affirmed.

(7) Statements not to be introduced at an administrative hearing. In any administrative hearing commenced under Section 6 or 7 of this administrative regulation, evidence as to statements made by a party at an assessment conference shall not be introduced by another party as evidence or to impeach a witness.

(8) Challenge to conference officer's report.

(a) Any person issued a proposed penalty assessment may file a petition requesting an administrative hearing to contest the conference officer's recommended penalty. A petition shall comply with Section 6 of this administrative regulation.

(b) The cabinet may file a petition to request under Section 5 of this administrative regulation an administrative hearing to contest the conference officer's recommended penalty.

(9) Failure to timely file a petition challenging the conference report. If a person issued a proposed penalty assessment fails to timely file a petition in accordance with Section 6 of this administrative regulation challenging the conference report, the secretary shall issue a final order pursuant to paragraph (a) or (b) of this subsection.

(a) If the person also did not file a timely petition requesting an administrative hearing as to the fact of the violation pursuant to Section 7 of the administrative regulation, then the secretary shall issue a final order finding that:

The person to whom the notice of noncompliance and order for remedial measures or cessation order was issued has waived all rights to an administrative hearing on the amount of the proposed assessment;
The fact of the violation shall be deemed admitted; and
The proposed penalty shall be due and payable within thirty (30) days after the entry of the final order.

(b) If the person filed a timely petition requesting an administrative hearing as to the fact of the violation pursuant to Section 7 of the administrative regulation, then the secretary shall issue a final order finding that:

The person to whom the notice of noncompliance and order for remedial measures or cessation order was issued has waived all rights to an administrative hearing on the amount of the proposed assessment; and
The proposed penalty shall be due and payable within thirty (30) days of the mailing of a final order affirming the fact of the violation.

Section 5. Administrative Hearing Initiated by the Cabinet.

(1) Criteria for filing.

(a) The cabinet may initiate an administrative hearing if:

The cabinet has reason to believe that a violation of KRS Chapter 350 or 405 KAR Chapters 7 through 24 has occurred or is occurring;
A violation of a permit condition has occurred or is occurring;
A permittee, operator, or person has failed to:

a. Pay a civil penalty assessed by the cabinet;

b. Undertake remedial measures mandated by an order of the cabinet; or

c. Abate violations the permittee, operator, or person was determined to have committed by an order of the cabinet;

The provisions of KRS 350.990(9) apply;
The cabinet has reason to believe additional remedies should be sought or an order should be entered against a person to protect the environment or the health and safety of the public;
The criteria of 405 KAR 10:050, Section 3(2) or (3) apply;
The cabinet has determined that revocation of a license under KRS 351.345 is warranted; or
An explosive user or seller notified the cabinet pursuant to KRS 351.350 that they intend to challenge a citation issued under KRS 351.315 to 351.375.

(b) The cabinet may initiate an administrative hearing to contest a conference officer's recommended penalty and seek any combination of the relief set forth in subsection (2) of this section.

(c) The cabinet shall initiate an administrative hearing and shall seek revocation of the permit and forfeiture of the bond or suspension of the permit pursuant to KRS Chapter 350 if:

The permittee, operator, or person has willfully failed to comply with a cessation order; or
The criteria of 405 KAR 10:050, Section 3(1) apply.

(2) Remedies.

(a) In an administrative hearing pursuant to KRS Chapter 350 initiated by the cabinet or in a counter claim filed in response to a petition filed in accordance with Section 6, 7, 8, or 9 of this administrative regulation, the cabinet may seek one (1) or a combination of the following:

Permit suspension or revocation;
Bond forfeiture;
Civil penalty;
A determination, pursuant to KRS 350.060, 350.085, and 350.130, that a person shall not be eligible to receive another permit or conduct future operations;
A determination, pursuant to KRS 350.990(9), that any director, officer, or agent of a corporation willfully and knowingly authorized, ordered, or carried out a violation or failed or refused to comply with any final order; or
Any other relief to which the cabinet may be entitled by KRS Chapter 350.

(b) In an administrative hearing pursuant to KRS Chapter 351 initiated by the cabinet, the cabinet may seek one (1) or a combination of the following:

Revocation of license or permit pursuant to KRS 351.345 or KRS 351.315;
Civil penalty pursuant to KRS 351.350; or
Any other relief to which the cabinet may be entitled by KRS 351.315 to 351.375.

(3) Procedure for an administrative hearing initiated by the cabinet.

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

A statement of facts entitling the cabinet to administrative relief;
A request for specific relief;
A copy of any notice, order, citation, or determination upon which relief is sought; and
In a bond forfeiture action, the cabinet shall attach documentation to the petition that the cabinet contacted the bonding company or financial institution providing the bond, to determine if it wanted the right to perform the measures necessary to secure bond release in accordance with KRS 350.130.

(b) Answer or responsive pleading.

The respondent shall file with the office an answer or responsive pleading within thirty (30) days of service of the administrative complaint.
The answer shall contain:

(i) A statement specifically admitting or denying the alleged facts stated in the administrative complaint or amended administrative complaint; or

(ii) If the person is without knowledge or information sufficient to form a belief as to the truth of an allegation, then the person shall so state and it shall have the effect of a denial;

b. Any defense to each claim for relief; and

c. Any other matter to be considered on review.

Failure to plead any available administrative affirmative defense in a required answer or responsive pleading may constitute a waiver of the defense, except that lack of jurisdiction over the subject matter and failure to state a claim upon which relief can be granted shall not be waived by failure to assert them in a responsive pleading.
An allegation in a pleading to which an answer or responsive pleading is not required or permitted shall be taken as denied or avoided.
An allegation in a pleading to which an answer or responsive pleading is required may be deemed admitted if not denied in the answer or responsive pleading.

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 respondent shall have ten (10) days from the filing of an amended administrative complaint or the time remaining for filing an answer to the original complaint, whichever is longer, to file an answer or responsive pleading to the amended administrative complaint.
If the hearing officer grants a motion to amend the administrative complaint, the hearing officer shall set the time for an answer to be filed in the order granting the motion.

(4) Burden of proof.

(a) The cabinet shall have the ultimate burden of persuasion.

(b) A respondent shall have the burden of persuasion to establish an affirmative defense.

(c) A respondent claiming an exemption shall have the burden of persuasion to establish the qualification for the exemption.

(5) Default.

(a) If 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 on his or her own initiative or upon motion, issue an order to show cause why the person should not be deemed to have waived the right to an administrative hearing and why a report and recommended order adverse to the person shall not be referred to the secretary.

(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 the 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 6. Administrative Hearing for Review of Proposed Assessment.

(1) Who may file. Any person issued a proposed penalty assessment may file with the office a petition for an administrative hearing to review the penalty.

(2) Filing petition; waiver.

(a) A person filing a petition for review of a proposed penalty assessment who did not make a request for a Penalty Assessment Conference pursuant to Section 4 of this administrative regulation shall file the petition in the office within thirty (30) days of:

Receipt of the proposed penalty assessment; or
The return receipt date in the department of the notice of proposed penalty assessment, if the proposed penalty assessment is returned undeliverable, unclaimed, or refused.

(b) If the person made a timely request for an assessment conference pursuant to Section 4 of this administrative regulation, the person shall file a petition for review in the office within thirty (30) days of:

Receipt of the conference officer's report; or
The return receipt date in the office of the conference officer's report, if the conference officer's report is returned undeliverable, unclaimed, or refused;

(c) The hearing officer shall not grant an extension of time for filing a petition for review of a proposed penalty assessment.

(d) If the hearing officer, upon motion or his or her own initiative, finds that the person failed to timely file the petition for review in accordance with this section, the hearing officer shall issue a report recommending dismissal of the petition. The secretary shall enter an order in accordance with Section 4(9)(a) or (b) of this administrative regulation.

(3) Content of the petition. The petition shall include:

(a) A short and plain statement indicating the reasons why the amount of the penalty is being contested;

(b) If the amount of penalty is being contested based upon a misapplication of the penalty formula, a statement indicating how the penalty formula contained in 405 KAR 7:095 was misapplied, along with a proposed penalty utilizing the penalty formula; and

(c) Identification by reference to the number for the notice of noncompliance and order for remedial measures or cessation order number.

(4) Answer or responsive pleading.

(a) The respondent shall file with the office an answer or responsive pleading within thirty (30) days of service of the petition.

(b) The answer shall contain:

a. A statement specifically admitting or denying the facts stated in the petition or amended petition; or

b. If the person is without knowledge or information sufficient to form a belief as to the truth of an allegation, then the person shall so state and it shall have the effect of a denial;

Any defense to each claim for relief; and
Any other matter to be considered on review.

(c) Failure to plead any available administrative affirmative defense in a required answer or responsive pleading may constitute a waiver of that defense, except that lack of jurisdiction over the subject matter and failure to state a claim upon which relief can be granted shall not be waived by failure to assert them in an answer or responsive pleading.

(d) An allegation in the petition to which no answer or responsive pleading is required or permitted shall be taken as denied or avoided.

(e) An allegation in the petition to which an answer or responsive pleading is required may be deemed admitted if not denied in the answer or responsive pleading.

(5) Amended petition.

(a) 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.

(c) If the hearing officer grants a motion to amend a petition, the hearing officer shall set the time for an answer to be filed, which shall be set forth in the order granting the motion.

(6) Burden of proof. The cabinet shall have the burden of going forward to establish a prima facie case as to the amount of the penalty assessment and the ultimate burden of persuasion as to the amount of the penalty assessment.

(7) Default.

(a) If the petitioner fails to timely comply with a prehearing order of a hearing officer, the hearing officer, may at his or her discretion or upon motion, issue an order to show cause why the person should not be deemed to have waived the right to an administrative hearing and why the 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 in conformity with Section 4(9)(a) or (b) of this administrative regulation.

(c) If the person against whom the proposed penalty is assessed fails to appear at an administrative hearing, the person shall be deemed to have waived the right to a hearing and the hearing officer shall recommend to the secretary the entry of a final order in conformity with Section 4(9)(a) or (b) of this administrative regulation.

(8) Hearing officer report; contents. If an administrative hearing is conducted, the hearing officer shall incorporate in the report and recommended order concerning a civil penalty, findings of fact on each of the four (4) criteria set forth in 405 KAR 7:095, Section 3 and conclusions of law.

Section 7. Administrative Review of a Notice of Noncompliance and Order for Remedial Measures and a Cessation Order.

(1) Who may file. A person who considers himself aggrieved by the issuance of a notice of noncompliance and order for remedial measures or cessation order by the cabinet pursuant to the provisions of KRS Chapter 350 or 405 KAR Chapters 7 through 24 and 805 KAR Chapter 4 may file a petition for review with the office.

(2) Time for filing.

(a) A person filing a petition for review under this section shall file in the office a petition within:

Thirty (30) days of the receipt of a notice of noncompliance and order for remedial measures or cessation order;
Thirty (30) days of receipt of notice of modification, vacation, or termination of the notice of noncompliance and order for remedial measures or cessation order;
Thirty (30) days of the return receipt date in the department of the notice of noncompliance and order for remedial measures or cessation order if the notice of noncompliance and order for remedial measures or cessation order is returned as undeliverable, unclaimed, or refused;
Thirty (30) days of:

a. Receipt of the proposed penalty assessment; or

b. The return receipt date in the department of the notice of proposed penalty assessment, if the proposed penalty assessment is returned undeliverable, unclaimed, or refused; or

Thirty (30) days of:

a. Receipt of the penalty assessment conference officer's report; or

b. The return receipt date in the office of the penalty assessment conference officer's report, if the conference officer's report is returned undeliverable, unclaimed, or refused.

(b) The hearing officer shall not grant an extension of time for filing a petition for review.

(c) If the hearing officer, upon motion or his or her own initiative, finds that the person failed to timely file the petition for review in accordance with this section, the hearing officer shall issue a report recommending dismissal of the petition. The secretary shall dismiss a petition that is not filed in accordance with subsection (2)(a) of this section finding that the person waived the right to an administrative hearing and affirming the notice of noncompliance and order for remedial measures or cessation order.

(3) Content of the petition. A person filing a petition for review shall incorporate in the petition regarding each claim for relief:

(a) A statement of facts entitling that person to administrative relief;

(b) A request for specific relief;

(d) A copy of the notice of noncompliance and order for remedial measures or cessation order sought to be reviewed; and

(e) A statement as to whether or not the person waives the opportunity for an evidentiary hearing;

(4) Answer or responsive pleading.

(a) The respondent shall file with the office an answer or responsive pleading within thirty (30) days of service of the petition.

(b) The answer shall contain:

a. A statement specifically admitting or denying the facts stated in the petition or amended petition; or

b. If the person is without knowledge or information sufficient to form a belief as to the truth of an allegation, then the person shall so state and it shall have the effect of a denial;

Any defense to each claim for relief; and
Any other matter to be considered on review.

(d) An allegation in the petition to which no answer or responsive pleading is required or permitted shall be taken as denied or avoided.

(e) An allegation in the petition to which an answer or responsive pleading is required may be deemed admitted if not denied in the answer or responsive pleading.

(5) Amended petition.

(a) 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.

(b) The respondent 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 or responsive pleading to the amended petition.

(c) 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) Requirement to file subsequent notice of noncompliance and order for remedial measures or cessation order.

(a) Within ten (10) days of receipt, a petitioner shall file a copy of any subsequent notice of noncompliance and order for remedial measures or cessation order that modifies, vacates, or terminates the notice of noncompliance and order for remedial measures or cessation order sought to be reviewed.

(b) Within ten (10) days of receipt, a petitioner shall file a copy of any subsequent cessation order for failure to timely abate the violation that is the subject to the notice sought to be reviewed.

(c) If a petitioner desires to challenge a subsequent notice of noncompliance and order for remedial measures or cessation order, the petitioner shall file:

A separate petition for review in accordance with this section; or
A motion to amend a pending petition with the amended petition attached in accordance with this section and within the time requirements of subsection (2) of this section.

(d) A petition for review of a related notice of noncompliance and order for remedial measures or cessation order shall be subject to consolidation.

(7) Default.

(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 affirming the notice of noncompliance and order for remedial measures or cessation order and dismissing the petition.

(c) If the petitioner fails to appear at an administrative hearing, the person shall be deemed to have waived the right to an administrative hearing and the hearing officer shall recommend to the secretary the entry of a final order affirming the notice of noncompliance and order for remedial measures or cessation order and dismissing the petition.

(8) Burden of proof. In review of a notice of noncompliance and order for remedial measures or cessation order or the modification, vacation, or termination thereof under this section, the cabinet shall have the burden of going forward to establish a prima facie case as to the propriety of the notice of noncompliance and order for remedial measures or cessation order, or modification, vacation, or termination thereof. The ultimate burden of persuasion shall rest with the petitioner.

Section 8. Request for Review of Permit Determinations Pursuant to KRS Chapter 350.

(1) Who may file. The permit applicant, permittee, or person having an interest that is or may be adversely affected by a permit determination of the cabinet may file a petition for review of the following:

(a) Application for a new permit;

(b) Application for a permit revision and amendment, permit renewal, and the transfer, assignment, or sale of rights granted under permit;

(c) Permit revision and amendment ordered by the cabinet, except challenges of permit revision ordered as a remedial measure in a notice of noncompliance shall be reviewed in an administrative hearing pursuant to Section 7 of this administrative regulation; and

(d) Application for a coal exploration permit.

(2) Time to file; waiver.

(a) The permit applicant, permittee, or person having an interest that is or may be adversely affected by a permit determination of the cabinet shall file a petition for review with the office within thirty (30) days from the date the permit applicant, permittee, or person had actual notice of the determination or could reasonably have had notice.

(b) If the hearing officer, upon motion or his or her own initiative, finds that the permit applicant, permittee, or person failed to timely file the petition for review in accordance with this section, the hearing officer shall issue a report recommending dismissal of the petition. The secretary shall enter an order stating that the permit applicant, permittee, or person waived the right to an administrative hearing.

(3) Content of the petition. The petition for review shall include:

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

(b) An explanation of each specific alleged error in the cabinet's decision, including reference to the statutory and regulatory provisions allegedly violated;

(d) A statement whether or not the person requests or waives the opportunity for an evidentiary hearing.

(4) Answer or responsive pleading.

(a) The respondent shall file with the office an answer or responsive pleading within thirty (30) days of service of the petition.

(b) The answer shall contain:

a. A statement specifically admitting or denying the facts stated in the petition or amended petition; or

b. If the person is without knowledge or information sufficient to form a belief as to the truth of an allegation, then the person shall so state and it shall have the effect of a denial;

Any defense to each claim for relief; and
Any other matter to be considered on review.

(d) An allegation in the petition to which no answer or responsive pleading is required or permitted shall be taken as denied or avoided.

(e) An allegation in the petition to which an answer or responsive pleading is required may be deemed admitted if not denied in the answer or responsive pleading.

(5) Amended petition.

(a) 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.

(c) If the hearing officer grants a motion to amend a petition, the hearing officer shall set the time for an answer to be filed in the order granting the motion.

(6) 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.

(7) Default.

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

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

(8) Burden of proof.

(a) Petition to review application for a new permit.

If the permit applicant is seeking review, he or she shall have the burden of going forward to establish a prima facie case and the ultimate burden of persuasion that:

a. The permit application complies with the requirements of KRS Chapter 350 and 405 KAR Chapters 7 through 24; or

b. The permit terms or conditions are improper.

If a person other than the permit applicant is seeking review, the person shall have the burden of going forward to establish a prima facie case and the ultimate burden of persuasion that:

a. The permit application fails to comply with the requirements of KRS Chapter 350 or 405 KAR Chapters 7 through 24; or

b. The cabinet should have imposed certain terms or conditions on the permit that were not imposed.

(b) Petition to review the approval or disapproval of an application for a permit renewal.

A party opposing the renewal of a permit shall have the burden of going forward to establish a prima facie case; and
The ultimate burden of persuasion that the permit renewal application should be disapproved or that the cabinet should have imposed certain terms or conditions on the renewal permit that were not imposed.

(c) Petition to review the approval or disapproval of an application for a permit revision or amendment, or an application for the transfer, assignment, or sale of rights granted under permit.

If the permit applicant is seeking review, the permit applicant shall have the burden of going forward to establish a prima facie case and the ultimate burden of persuasion that the permit application complies with the requirements of KRS Chapter 350 and 405 KAR Chapters 7 through 24.
If a person other than the permit applicant is seeking review, the person shall have the burden of going forward to establish a prima facie case and the ultimate burden of persuasion that the application fails to comply with the requirements of KRS Chapter 350 or 405 KAR Chapters 7 through 24.

(d) Petition to review a permit revision or amendment ordered by the cabinet.

The cabinet shall have the burden of going forward to establish a prima facie case that the permit should be revised or amended; and
The permittee shall have the ultimate burden of persuasion that the revision or amendment is not appropriate.

(e) Petition to review a decision on an application for a coal exploration permit.

If the permit applicant is seeking review, he or she shall have the burden of going forward to establish a prima facie case and the ultimate burden of persuasion that the permit application complies with the requirements of KRS Chapter 350 and 405 KAR Chapters 7 through 24.
If a person other than the permit applicant is seeking review, the person shall have the burden of going forward to establish a prima facie case and the ultimate burden of persuasion that the application fails to comply with the requirements of KRS Chapter 350 or 405 KAR Chapters 7 through 24.

Section 9. Review of a Cabinet Determination.

(1) Who may file. A person who considers himself or herself aggrieved by a determination of the cabinet made under KRS Chapter 350 for which an administrative hearing is not specifically provided in any other section of this administrative regulation may file a petition for review of the determination pursuant to this section.

(2) Time to file; waiver.

(a) A person filing a petition for review under this section shall file in the office a petition within thirty (30) days after the person has had actual notice of the determination complained of, or could reasonably have had notice.

(b) The hearing officer shall not grant an extension of time for filing a petition for review pursuant to this section.

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

(a) A statement of the facts entitling the person to administrative relief;

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

(d) A request for specific relief.

(4) Answer or responsive pleading.

(a) The respondent shall file with the office an answer or other responsive pleading within thirty (30) days of service of the petition.

(b) The answer shall contain:

a. A statement specifically admitting or denying the facts stated in the petition or amended petition; or

b. If the person is without knowledge or information sufficient to form a belief as to the truth of an allegation, then the person shall so state and it shall have the effect of a denial;

Any defense to each claim for relief; and
Any other matter to be considered on review.

(d) An allegation in the petition to which no answer or responsive pleading is required or permitted shall be taken as denied or avoided.

(e) An allegation in the petition to which an answer or responsive pleading is required may be deemed admitted if not denied in the answer or responsive pleading.

(5) Amended petition.

(a) 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.

(c) If the hearing officer grants a motion to amend a petition, the hearing officer shall set the time for an answer to be filed in the order granting the motion.

(6) 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.

(7) Default.

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

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

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

Section 10. Proceeding for the Suspension or Revocation of a Permit Pursuant to KRS Chapter 350 Because of a Pattern of Violations.

(1) Initiation of the proceeding.

(a) A proceeding on a show cause order issued by the cabinet pursuant to KRS 350.028(4), 350.465(3)(f), and 405 KAR 12:020, Section 8, shall be initiated by the filing of a copy of the show cause order by the cabinet with the office at the same time the order is issued to the permittee.

(b) A show cause order shall set forth:

A list of the unwarranted or willful violations that contribute to a pattern of violations;
A copy of each order or notice that contains the violations listed as contributing to a pattern of violations;
The basis for determining the existence of a pattern of violations; and
A recommendation whether or not the permit should be suspended or revoked, including the length and terms of a suspension.

(2) Answer. The permittee shall have thirty (30) days from service of the show cause order within which to file an answer with the office, which shall state:

(a) The reasons in detail why a pattern of violations, as established in 405 KAR 12:020, Section 8, does not exist or has not existed including all reasons for contesting:

The fact of the violations alleged by the cabinet as constituting a pattern of violations;
The willfulness of the violations; or
Whether or not the violations were caused by the unwarranted failure of the permittee;

(b) Mitigating factors the permittee believes exist in determining the terms of the revocation or the length and terms of the suspension;

(d) Whether or not an evidentiary hearing on the show cause order is desired.

(3) Burden of proof. In a show cause proceeding, the cabinet shall have the burden of going forward to establish a prima facie case for suspension or revocation of the permit. The ultimate burden of persuasion that the permit should not be suspended or revoked shall rest with the permittee.

(4) Determination by the hearing officer.

(a) Upon a determination by the hearing officer pursuant to 405 KAR 12:020, Section 8, that a pattern of violations exists or has existed, the hearing officer shall recommend the permit either be suspended or revoked and the permittee be directed to complete necessary remedial measures and reclamation operations. In making the recommendation, the hearing officer need not find that all the violations listed in the show cause order occurred, but only that sufficient violations occurred to establish a pattern.

(b) If the permit is suspended, the hearing officer may recommend preconditions to be satisfied prior to the suspension being lifted.

(5) Default. If the permittee fails to timely file an answer or appear at the administrative hearing, the permittee shall be deemed to have waived the right to an administrative hearing and the hearing officer shall recommend to the secretary the entry of a final order containing the following:

(a) That each violation listed in the show cause order occurred;

(b) That the violations were caused by the permittee's unwarranted failure or were willfully caused;

(d) That the permit shall be suspended or revoked in accordance with the recommendation contained in the show cause order.

Section 11. Temporary Relief.

(1) Temporary relief available. Except as established in subsection (2) of this section and pending the completion of the investigation and hearing provided for in this administrative regulation, a hearing officer may, subject to review by the secretary, grant temporary relief from:

(a) Notice of noncompliance and order for remedial measures or a cessation order issued pursuant to KRS Chapter 350 or 405 KAR Chapters 7 through 24 or 805 KAR Chapter 4;

(b) A permit or bond release decision of the cabinet; or

(2) Temporary relief not available. A hearing officer shall not grant temporary relief for:

(a) The issuance of a permit if the cabinet made a determination to deny a permit in whole or in part; or

(b) The release of a bond if the cabinet made a determination to deny a bond release request.

(3) A hearing officer shall grant or deny temporary relief from a cessation order issued pursuant to KRS 350.130(1) or (4), or from a bond release decision within five (5) working days of receipt by the office of a temporary relief request, unless waived by the petitioner.

(4) Contents of the petition. A person shall file a written petition for relief with the office. The petition shall contain:

(a) The permit number, the name of the permittee, the date and number of the notice of noncompliance and order for remedial measures or cessation order from which relief is requested, if applicable, and the name and telephone number of the petitioner;

(b) A detailed statement setting forth reasons why relief should be granted;

(c) Facts supporting a substantial likelihood that the person requesting the relief will prevail on the merits of the final determination of the proceeding;

(d) A statement that the relief sought will not adversely affect the health or safety of the public or cause significant, imminent environmental harm to land, air, or water resources;

(e) If the petition relates to a cessation order issued pursuant to KRS 350.130(1) or (4) or a decision to release a bond, a statement of whether or not the person waives the requirement for the hearing officer to grant or deny the request for temporary relief within five (5) working days of receipt of the petition by the office; and

(f) A statement of the specific relief requested.

(5) Hearing process.

(a) In addition to the service requirements of 400 KAR 1:090, Section 5, the petitioner shall serve other parties with a copy of the petition simultaneously with the filing of the petition in the office. If service is accomplished by mail, the petitioner shall inform the other parties by telephone at the time of mailing that a petition is being filed in the office and the contents of the petition.

(b) The representative of the cabinet and any other party may indicate their objection to the application by communicating the objection to the hearing officer and the petitioner by telephone. Ex parte communication as to the merits of the proceeding shall not be conducted with the hearing officer. The representative of cabinet and any other party may simultaneously reduce their objections to writing. Written objections shall be immediately filed with the office and immediately served upon the petitioner.

Upon receipt of communication that there is an objection to the petition, the hearing officer shall immediately order a location, time, and date for the administrative hearing by communicating the information to the cabinet, any other party, and the petitioner by telephone.
The hearing officer shall reduce the communication to writing in the form of a memorandum to the file.
The administrative hearing on the request for temporary relief shall be held in the locality of the permit area, or at any other location acceptable to the cabinet, the petitioner, and any other person named in the action.
If the petitioner did not waive the requirement for the hearing officer to grant or deny temporary relief within five (5) working days of the office's receipt of the petition for temporary relief as set forth in subsections (3) and (4)(e) of this section, the hearing officer shall schedule the administrative hearing within (5) five days of the office's receipt of the petition for temporary relief.

(d) If an evidentiary hearing is held the hearing officer may require the parties to submit proposed findings of fact and conclusions of law to be considered at the evidentiary hearing, which may be orally supplemented on the record at the hearing.

(e) If at any time, the petitioner requests a delay or acts in a manner so as to frustrate the expeditious nature of the proceeding or fails to supply the information required by the hearing officer, the action shall constitute a waiver of the five (5) day requirement in subsection (3) of this section.

(6) Standard of review. A hearing officer may grant temporary relief if:

(a) The person requesting relief shows that there is substantial likelihood that the findings on the merits in an administrative hearing conducted by the cabinet will be favorable to the person; and

(b) The relief will not adversely affect the health or safety of the public or cause significant, imminent environmental harm to land, air, or water resources.

(7) Timing of hearing officer's determination.

(a) A hearing officer shall grant or deny relief expeditiously.

(b) If the petitioner did not waive the requirement for a hearing officer to grant or deny the request for temporary relief within five (5) days of the office's receipt of the petition as required in subsections (3) and (4)(e) of this section, the hearing officer shall either:

Orally rule on the request for temporary relief at the conclusion of the hearing stating the reasons for the decision and issue a written decision stating the reasons for the finding within three (3) working days; or
Within twenty-four (24) hours of completion of the administrative hearing issue a written decision stating the reasons for the finding.

(c) If the petitioner waived the requirement for a hearing officer to grant or deny the request for temporary relief within five (5) days of the office's receipt of the petition in accordance with subsections (3) and (4)(e) of this section, or the petitioner did not request temporary relief from a cessation order or a bond release hearing, then hearing officer shall either:

Orally rule on the request for temporary relief at the conclusion of the hearing stating the reasons for the decision and issue a written decision stating the reasons for the finding within twenty (20) working days; or
Within fifteen (15) days of completion of the administrative hearing issue a written decision stating the reasons for the finding.

Section 12. Petition for Recovery of Costs and Expenses.

(1) Who may file and time to file.

(a) A person may file a petition for an award of costs and expenses, including attorneys' fees reasonably incurred, as a result of the person's participation in a proceeding held pursuant to this administrative regulation for an action brought pursuant to KRS Chapter 350 that results in an order of the secretary.

(b) A person shall file, with the cabinet within forty-five (45) days of the date of entry of the final order, a petition for an award of costs and expenses, including attorneys' fees.

(2) Content of the petition. A person shall include in the petition filed under this section the name of the party from whom costs and expenses are sought and the following:

(a) An affidavit setting forth in detail all costs and expenses including attorneys' fees reasonably incurred for, or in connection with, the person's participation in the proceeding;

(b) Receipts or other evidence of the costs and expenses; and

The hours expended on the case;
The customary commercial rate of payment for the services in the area; and
The experience, reputation, and ability of the individual or individuals performing the services.

(3) Answer.

(a) The respondent shall file with the office within thirty (30) days from service of the petition an answer or other responsive pleading.

(b) The answer shall contain:

a. A statement specifically admitting or denying the facts stated in the petition or amended petition; or

b. If the person is without knowledge or information sufficient to form a belief as to the truth of an allegation, then the person shall so state and it shall have the effect of a denial;

Any defense to each claim for relief; and
Any other matter to be considered on review.

(d) An allegation in the petition to which no answer or responsive pleading is required or permitted shall be taken as denied or avoided.

(e) An allegation in the petition to which an answer or responsive pleading is required may be deemed admitted if not denied in the answer or responsive pleading.

(4) Criteria for awarding of costs.

(a) Appropriate costs and expenses including attorneys' fees may be awarded to a person from the permittee, if:

The person initiated an administrative proceeding reviewing an enforcement action, and a Secretary's Order was issued finding that, on or after May 18, 1982:

a. A notice of noncompliance and order for remedial measures or a cessation order was properly issued for violations of KRS Chapter 350, KAR Title 405 or a permit condition; or

b. An imminent hazard existed; or

The person participated in an administrative proceeding reviewing an enforcement action, and a Secretary's Order was issued finding that, on or after May 18, 1982:

a. A notice of noncompliance and order for remedial measures or a cessation order was properly issued for violations of KRS Chapter 350, KAR Title 405, or a permit condition; or

b. An imminent hazard existed; and

c. The hearing officer finds and the secretary concurs that the person made a substantial contribution to the full and fair determination of the issues.

(b) Appropriate costs and expenses including attorneys' fees may be awarded to a person other than a permittee or his representative from the cabinet, if:

The person initiated or participated in any proceeding under KRS Chapter 350; and
The hearing officer finds and the secretary concurs that the person made a substantial contribution to a full and fair determination of the issues.

(c) Appropriate costs and expenses including attorneys' fees may be awarded to a permittee from the cabinet if the permittee demonstrates that the cabinet initiated an administrative hearing or issued a notice of noncompliance and order for remedial measures or a cessation order:

In bad faith; and
For the purpose of harassing or embarrassing the permittee.

(d) Appropriate costs and expenses including attorneys' fees may be awarded to a permittee from a person if the permittee demonstrates that the person initiated an administrative hearing under this administrative regulation or participated in an administrative hearing or conference:

In bad faith; and
For the purpose of harassing or embarrassing the permittee.

(e) Appropriate costs and expenses including attorneys' fees may be awarded to the cabinet from a person if the cabinet demonstrates that:

A person applied for review pursuant to this administrative regulation in bad faith and for the purpose of harassing or embarrassing the cabinet or the Commonwealth; or
A party participated in an administrative hearing or conference in bad faith and for the purpose of harassing or embarrassing the cabinet or the Commonwealth.

(5) An award under this section may include reimbursement for costs and expenses, including attorneys' fees and expert witness fees, reasonably incurred.

Section 13. Location of an Administrative Hearing.

(1) An administrative hearing conducted in accordance with this administrative regulation shall be held at the location designated by the hearing officer unless a written request for a hearing at or close to the mine site is submitted with the initiating document or an answer.

(2) The department's regional office for the mine site shall be deemed reasonably close, unless a closer location is requested by a party to the case and agreed to by the hearing officer.

(3) An administrative hearing pursuant to KRS Chapter 351.315 to 351.375 shall be held in Frankfort at the location designated by the hearing officer.

Section 14. Judicial Review, Effect, and Subsequent Proceeding.

(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 350.032 or 350.0305, as applicable.

(3) Remand from a court.

(a) If a matter is remanded from a court for a further proceeding, and to the extent the court's directive and time limitations will permit, each party shall be allowed an opportunity to submit to the hearing officer, a report recommending a procedure to be followed in order to comply with the court's order.

(b) The hearing officer shall review each report and enter a special order governing the handling of the matter remanded to it for further proceedings by a court.

History

RELATES TO: KRS 224.10-410, 350.010, 350.028, 350.0301, 350.0305, 350.032, 350.060, 350.070, 350.085, 350.090, 350.093, 350.130, 350.255, 350.465, 350.990, 351.315, 351.345, 351.350, 30 C.F.R. Parts 730, 731, 732, 733, 735, 917, 30 U.S.C. 1253, 1255
STATUTORY AUTHORITY: KRS 350.020, 350.028, 350.0301, 350.255, 350.465, 350.610, 351.315, 351.335, 351.345, 351.350, 30 C.F.R. Parts 730, 731, 732, 733, 735, 917, 30 U.S.C. 1253, 1255
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 requires the cabinet to promulgate rules and administrative regulations pertaining to surface coal mining and reclamation operations and coal exploration operations. KRS Chapter 351 authorizes the cabinet to promulgate rules and administrative regulations pertaining to explosives and blasting operations. This administrative regulation establishes hearing, conference, notice, penalty assessment, and other procedural and due process provisions for the permanent regulatory program under KRS Chapter 350, and the hearing procedures pursuant to KRS Chapter 351.
History: 19 Ky.R. 551; 931; 1352; eff. 11-23-1992; TAm eff. 8-9-2007; 43 Ky.R. 1876; 44 Ky.R. 80; eff. 8-4-2017; Recodified from 405 KAR 7:092; eff. 8-4 2017; TAm eff. 5-4-2018; 45 Ky.R. 453; eff. 10-4-2018; 46 Ky.R. 1019, 1832; eff. 3-3-2020.

400 KAR 1:120 Administrative hearings, informal settlement conferences, and general practice provisions relating to a mineral operation {#sec-400-kar-1-120 omnilex-key=us-ky-regs-official--title-400--400 KAR 1:120}

Section 1. Definitions.

(1) "Cessation order" means an order for cessation and immediate compliance and any similar order issued by an authorized representative of the cabinet pursuant to KRS 350.130 and 405 KAR Chapter 5.

(2) "Department" is defined by 405 KAR 5:002.

(3) "Mineral operation" is defined by 405 KAR 5:002.

(4) "Mineral operator" is defined by 405 KAR 5:002.

(5) "Mineral permittee" is defined by 405 KAR 5:002.

(6) "Notice of noncompliance and order for remedial measures" means a written document and order prepared by an authorized representative of the cabinet in accordance with KRS 350.130 that:

(a) Sets forth with specificity the violations of KRS Chapter 350, 405 KAR Chapters 5, or permit conditions, which the authorized representative of the cabinet determines to have occurred based upon a cabinet inspection; and

(b) Establishes the necessary remedial actions, if any, and the time schedule for completion thereof, which the authorized representative deems necessary and appropriate to correct the violations.

(7) "Order for cessation and immediate compliance" means a written document and order issued by an authorized representative of the cabinet in accordance with KRS 350.130 if:

(a) A person to whom a notice of noncompliance and order for remedial measures was issued has failed, as determined by a cabinet inspection, to comply with the terms of the notice of noncompliance and order for remedial measures within the time limits set therein, or as subsequently extended; or

(b) The authorized representative finds, on the basis of a cabinet inspection, any condition or practice or any violation of KRS Chapter 350, 405 KAR Chapters 5, or any condition of a permit that:

Creates an imminent danger to the health or safety of the public; or
Is causing or can reasonably be expected to cause significant, imminent environmental harm to land, air, or water resources.

(8) "Permit" is defined by 405 KAR 5:002.

(9) "Permit area" is defined by 405 KAR 5:002.

(10) "Significant, imminent environmental harm to land, air, or water resources" is defined by 405 KAR 5:002.

Section 2. Review of a Cabinet Order and Final Determination Relating to a Mineral Operation.

(1) Who may file. A person aggrieved by a determination of the cabinet relating to a mineral operation, including a notice of noncompliance and order for remedial measures, cessation order, or penalty assessment, may file a petition for review of the determination. A petition for review shall be filed pursuant to this section and KRS 350.0301(1).

(2) Time for filing.

(a) A person shall file in the office a petition within thirty (30) days after the person has had actual notice of the determination complained of, or could reasonably have had notice.

(b) The hearing officer shall not grant an extension of time for filing a petition for review.

(c) If the hearing officer, upon motion or his own initiative, finds that the person failed to timely file the petition for review in accordance with this section, the hearing officer shall issue a report recommending dismissal of the petition. The secretary shall dismiss a petition that is not filed in accordance with paragraph (a) of this subsection, stating that the person waived his right to an administrative hearing.

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

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

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

(d) A copy of the written determination to be reviewed, if applicable; and

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

(4) Public notice. The office shall post notice of the administrative hearing at the department's regional office with jurisdiction over the mine site, at least five (5) days before the administrative hearing.

(5) Answer or responsive pleading.

(a) The respondent shall file with the office an answer or other responsive pleading within thirty (30) days of service of the petition.

(b) The answer shall contain:

a. A statement specifically admitting or denying the facts stated in the petition or amended petition; or

b. If the person is without knowledge or information sufficient to form a belief as to the truth of an allegation, then the person shall so state and it shall have the effect of a denial;

Any defense to each claim for relief; and
Any other matter to be considered on review.

(d) An allegation in the petition to which no answer or responsive pleading is required or permitted shall be taken as denied or avoided.

(e) An allegation in the petition to which an answer or responsive pleading is required may be deemed admitted if not denied in the answer or responsive pleading.

(6) Amended petition.

(a) 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.

(c) If the hearing officer grants a motion to amend a petition, the hearing officer shall set the time for an answer to be filed in the order granting the motion.

(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 the petitioner should not be deemed to have waived the right to an administrative hearing and why the petition should not be dismissed.

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

(9) Burden of proof.

(a) In review of a penalty assessment, a notice of noncompliance and order for remedial measures, cessation order, or the modification, vacation, or termination thereof under this section:

The cabinet shall have the burden of going forward to establish a prima facie case as to the propriety of the penalty assessment, notice of noncompliance and order for remedial measures, cessation order, or modification, vacation, or termination thereof; and
The petitioner shall have the ultimate burden of persuasion.

(b) In review of a determination of the cabinet other than those set forth in paragraph (a) of this subsection, the petitioner shall have the burden of going forward to establish a prima facie case and the ultimate burden of persuasion as to the requested relief.

(10) Hearing officer determination. The hearing officer determination shall be made in accordance with Section 4 of this administrative regulation.

Section 3. Administrative Hearing Initiated by the Cabinet Relating to a Mineral Operation.

(1) Criteria for filing. The cabinet may initiate an administrative hearing if:

(a) The cabinet has reason to believe that a violation of KRS Chapter 350, 405 KAR Chapters 5, or a permit condition has occurred or is occurring;

(b) A mineral permittee has failed to:

Pay a civil penalty assessed by the cabinet;
Undertake a remedial measure mandated by an order of the cabinet; or
Abate a violation the mineral permittee was determined to have committed by an order of the cabinet;

(d) The cabinet has reason to believe an additional remedy should be sought or an order should be entered against a person to protect the environment or the health and safety of the public.

(2) Remedies. In an administrative hearing initiated by the cabinet or in a counterclaim filed in response to a petition filed in accordance with Section 2 of this administrative regulation, the cabinet may seek a combination of the following:

(a) Permit suspension or revocation;

(b) Bond forfeiture;

(d) A determination, pursuant to KRS 350.085 and 350.130, that the person shall not be eligible to receive another permit or conduct future mineral operations; or

(e) Any other relief to which the cabinet may be entitled by KRS Chapter 350.

(3) Procedure for an administrative hearing initiated by the cabinet.

A statement of facts entitling the cabinet to administrative relief;
A request for specific relief; and
A copy of any notice or order or determination upon which relief is sought.

(b) Public participation. The office shall post notice of the administrative hearing at the department's regional office over the mineral operation, at least five (5) days before the administrative hearing.

The respondent shall file with the office an answer or responsive pleading within thirty (30) days of service of the administrative complaint.
The answer shall contain:

(i) A statement specifically admitting or denying the alleged facts stated in the administrative complaint or amended administrative complaint; or

(ii) If the person is without knowledge or information sufficient to form a belief as to the truth of an allegation, then the person shall so state and it shall have the effect of a denial;

b. Any defense to each claim for relief; and

c. Any other matter to be considered on review.

Failure to plead any available administrative affirmative defense in a required answer or responsive pleading may constitute a waiver of the defense, except that lack of jurisdiction over the subject matter and failure to state a claim upon which relief can be granted shall not be waived by failure to assert them in a responsive pleading.
An allegation in a pleading to which an answer or responsive pleading is not required or permitted shall be taken as denied or avoided.
An allegation in a pleading to which an answer or responsive pleading is required may be deemed admitted if not denied in the answer or responsive pleading.

(d) Amendment.

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 respondent shall have ten (10) days from the filing of an amended administrative complaint or the time remaining for filing an answer to the original complaint, whichever is longer, to file an answer or responsive pleading to the amended administrative complaint.
If the hearing officer grants a motion to amend the administrative complaint, the hearing officer shall set the time for an answer to be filed in the order granting the motion.

(4) Burden of proof.

(a) The cabinet shall have the ultimate burden of persuasion.

(b) A respondent shall have the burden of persuasion to establish an affirmative defense.

(5) Default.

(6) Hearing officer determination and report. The hearing officer determination and report shall be made in accordance with Section 4 of this administrative regulation.

Section 4. Hearing Officer Determination.

(1) The hearing officer determination and report shall be made in accordance with 400 KAR 1:090, Section 20 and the provisions of this section.

(2) The hearing officer may recommend suspension or revocation of the permit or forfeiture of the bond if the mineral permittee has violated:

(a) Any provision of KRS Chapter 350;

(b) 405 KAR Chapter 5;

(d) A final order, including a failure to pay a civil penalty assessed in a final order of the cabinet.

(3) The hearing officer may recommend, pursuant to KRS 350.085 and 350.130, that a person shall not be eligible to receive another permit or conduct future mineral operations.

(4) If the hearing officer finds a violation exists, the hearing officer may recommend that a person be required to abate, repair, alleviate, or prevent violations of KRS Chapter 350, 405 KAR Chapter 5, or a permit condition.

(5) The hearing officer may in reviewing a permit determination by the cabinet recommend:

(a) That a permit was issued in violation of applicable statutory and regulatory criteria;

(b) Suspension or revocation of the permit; or

Section 5. Judicial Review, Effect, and Subsequent Proceedings.

(3) Remand from a court.

(a) If a matter is remanded from a court for a further proceeding, and to the extent the court's directive and time limitations will permit, each party shall file with the office, a report recommending a procedure to be followed in order to comply with the court's order.

(b) The hearing officer shall review the report and enter a special order governing the handling of a matter remanded for a further proceeding.

Section 6. Informal Settlement Conference.

(1) As an alternative to the administrative hearing established in Section 2 of this administrative regulation, a mineral permittee or other person issued a proposed penalty assessment, notice of noncompliance and order for remedial measures, or a cessation order, may request an informal conference with the Director, Division of Mine Reclamation and Enforcement. The request shall be made by submitting a written request.

(2) The mineral permittee or other person shall request an informal conference within thirty (30) days of the issuance of the notice of noncompliance and order for remedial measures, cessation order, or proposed penalty assessment.

(3) A request for an informal conference shall not toll the time for requesting an administrative hearing pursuant to Section 2 of this administrative regulation.

Section 7. Temporary Relief.

(1) Temporary Relief Available. Pending the completion of the investigation and hearing provided for in this administrative regulation, a hearing officer may, subject to review by the secretary, grant temporary relief from a:

(a) Notice of noncompliance and order for remedial measures or a cessation order issued for a mineral operation pursuant to KRS Chapter 350 or 405 KAR Chapter 5; or

(b) A permit or bond release decision of the cabinet.

(2) Temporary Relief Not Available. A hearing officer shall not grant temporary relief for:

(a) The issuance of a permit if the cabinet made a determination to deny a permit in whole or in part; or

(b) The release of a bond if the cabinet made a determination to deny a bond release request.

(3) A hearing officer shall grant or deny temporary relief from a cessation order or bond release decision within five (5) working days of receipt by the office of a temporary relief request, unless waived by the petitioner.

(4) Contents of the Petition. A person shall file a written petition for relief with the office. The petition shall contain:

(a) The permit number;

(b) The name of the mineral permittee;

(c) The date and number of the notice of noncompliance and order for remedial measures or cessation order from which relief is requested, if applicable;

(d) The name and telephone number of the petitioner;

(e) A detailed statement setting forth reasons why the relief should be granted;

(f) Facts supporting a substantial likelihood that the person requesting the relief will prevail on the merits of the final determination of the proceeding;

(g) A statement that the relief sought will not adversely affect the health or safety of the public or cause significant, imminent environmental harm to land, air, or water resources;

(h) If the petition relates to a cessation order, a statement of whether or not the person waives the requirement for the hearing officer to grant or deny the request for temporary relief within five (5) working days of receipt of the petition by the office; and

(i) A statement of the specific relief requested.

(5) Hearing Process.

(b) Filing an Objection.

The representative of the cabinet and any other party may communicate an objection to the petition to the hearing officer and the petitioner by telephone.
The representative of the cabinet and any other party may simultaneously reduce any objection to writing.
A written objection shall be immediately filed with the office and immediately served upon the petitioner.
Ex parte communication as to the merits of the proceeding shall not be conducted with the hearing officer.

Upon receiving an objection to the petition, the hearing officer shall immediately order a location, time, and date for the administrative hearing by communicating the information to the cabinet, any other party, and the petitioner by telephone.
The hearing officer shall reduce the communication to writing in the form of a memorandum to the file.
The administrative hearing on the request for temporary relief shall be held in a location acceptable to both the cabinet and the petitioner.
If the petitioner did not waive the requirement for the hearing officer to grant or deny temporary relief within five (5) working days of the office's receipt of the petition for temporary relief as set forth in subsections (3) and (4)(h) of this section, the hearing officer shall schedule the administrative hearing within (5) five days of the office's receipt of the petition for temporary relief.

(d) If an evidentiary hearing is held, the hearing officer may require each party to submit proposed findings of fact and conclusions of law to be considered at the evidentiary hearing, which may be orally supplemented on the record at the hearing.

(6) Standard of review. A hearing officer may grant temporary relief if:

(a) The person requesting relief shows that there is substantial likelihood that the findings on the merits in an administrative hearing conducted by the cabinet will be favorable to the person; and

(b) The relief will not adversely affect the health or safety of the public or cause significant, imminent environmental harm to land, air, or water resources.

(7) Timing of hearing officer's determination.

(a) If the petitioner did not waive the requirement for a hearing officer to grant or deny the request for temporary relief of a cessation order or bond release decision within five (5) days of the office's receipt of the petition as required in subsections (3) and (4)(h) of this section, the hearing officer shall either:

Orally rule on the request for temporary relief at the conclusion of the hearing stating the reasons for the decision and issue a written decision stating the reasons for the finding within three (3) working days; or
Within twenty-four (24) hours of completion of the administrative hearing, issue a written decision stating the reasons for the finding.

(b) If the petitioner waived the requirement for a hearing officer to grant or deny the request for temporary relief of a cessation order or bond release decision within five (5) days of the office's receipt of the petition in accordance with subsection (3) and (4)(h) of this section or the petitioner did not request temporary relief from a cessation order or a bond release decision, then the hearing officer shall either:

Orally rule on the request for temporary relief at the conclusion of the hearing stating the reasons for the decision and issue a written decision stating the reasons for the finding within twenty (20) working days; or
Within fifteen (15) days of completion of the administrative hearing issue a written decision stating the reasons for the finding.

History

RELATES TO: KRS 224.10-410, 224.10-470, 350.010(2), 350.032, 350.060, 350.085, 350.130, 350.240, 350.300, 350.305, 350.990
STATUTORY AUTHORITY: KRS 350.028, 350.029, 350.0301, 350.050, 350.240, 350.300
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 requires the cabinet to promulgate administrative regulations pertaining to noncoal mineral operations to minimize their adverse effects on the citizens and the environment of the Commonwealth. KRS 350.0301 requires the cabinet to promulgate administrative regulations establishing formal and informal hearing procedures and administrative conferences. This administrative regulation establishes provisions governing requests for administrative hearings, initiation of administrative hearings by the cabinet, informal settlement conferences, procedures for the conduct of administrative hearings, and orders to abate and alleviate.
History: 400 KAR 001:120. 21 Ky.R. 773; 1141; eff. 2-22-1995; 38 Ky.R. 666; 994; 1304; 2-3-201; 43 Ky.R. 1869; 44 Ky.R. 74; eff. 8-4-2017; Recodified from 405 KAR 5:095; eff. 8-4-2017; Crt eff. 8-6-2018; Crt eff. 7-22-2025.

Chapter 2 Office of Kentucky Nature Preserves

400 KAR 2:060 Definitions {#sec-400-kar-2-060 omnilex-key=us-ky-regs-official--title-400--400 KAR 2:060}

Section 1.

(1) "Act" means the enabling legislation of the Office of Kentucky Nature Preserves, KRS 146.410 through 146.530.

(2) "Advisor" means any individual selected by the office to serve in an advisory capacity to the office pursuant to KRS 146.435.

(3) "Articles of dedication" means the writing by which any estate, interest, or right in a natural area and buffer area is formally dedicated as provided in KRS 146.410 to 146.530;

(4) "Board" means the Kentucky Heritage Land Conservation Fund Board.

(5) "Cabinet" means the Energy and Environment Cabinet.

(6) "Custodian" means a person, organization, agency, or institution selected by the office to serve as the managing agent for a nature preserve.

(7) "Director" means the executive director of the Office of Kentucky Nature Preserves.

(8) "Inventory of natural types, flora and fauna" means a database of flora and fauna occurring in Kentucky, and of natural types and ecological communities identified by the office to be monitored for the purpose of comply with the provisions of the Act.

(9) "Natural area" means an area of land, water, or both land and water, in public or private ownership, which either retains or has reestablished to some degree, its natural character (though not necessarily completely) or that has natural flora, fauna, biological, ecological, geological, scenic, or archaeological features of scientific, aesthetic, cultural, or educational interest.

(10) "Nature preserve" means a natural area and land necessary for the natural area's protection, including an estate, interest, or right that has been formerly dedicated pursuant to KRS 146.410 through 146.530 to be maintained as nearly as possible in its natural condition and to be used in a manner and under limitations consistent with its continued preservation, without impairment, disturbance, or artificial development, for the public purposes of present and future scientific research, education, aesthetic enjoyment, and habitat for plant and animal species and other natural objects.

(11) "Register of natural areas" means the list of those natural areas worthy of preservation in accordance with KRS 146.460, but not available or desirable for dedication. Terrestrial natural areas are only registered with the consent of the landowner. Stream segments are registered upon determination by the office.

(12) "Secretary" means the Secretary of the Energy and Environment Cabinet.

History

RELATES TO: KRS 146.410 - 146.530
STATUTORY AUTHORITY: KRS 146.485
NECESSITY, FUNCTION, AND CONFORMITY: KRS 146.485 requires the Office of Kentucky Nature Preserves to develop administrative regulations for the selection, acquisition, management, protection and use of natural areas and nature preserves, and for the conduct of office affairs. This administrative regulation provides for the defining of certain essential terms used in 400 KAR 2:060 through 400 KAR 2:100.
History: 13 Ky.R. 1318; eff. 2-10-1987; 45 Ky.R. 1770, 2599; eff. 4-5-2019; Crt eff. 3-25-2026.

400 KAR 2:070 The Office of Kentucky Nature Preserves {#sec-400-kar-2-070 omnilex-key=us-ky-regs-official--title-400--400 KAR 2:070}

Section 1. Director. The secretary may hire a full-time director who shall be qualified by training and experience to administer the duties of the office, including:

(1) Employing personnel, including interim and grant-funded, time-limited staff;

(2) Approving documents necessary to perform the administrative function of the office, including time sheets, leave and compensatory time request forms, in-state travel approval, and request for purchase and payment forms;

(3) Signing documents requiring the signature and approval of the office to certify that the documents have been reviewed by the office staff;

(4) Managing the day to day affairs of the office and its staff;

(5) Preparing a report on the condition of each nature preserve and each natural area to be submitted to the Legislative Research Commission by October 1st in each even numbered year; and

(6) Other duties as directed by the secretary.

History

RELATES TO: KRS 146.410, 146.430
STATUTORY AUTHORITY: KRS 146.425(2), 146.485
NECESSITY, FUNCTION, AND CONFORMITY: KRS 146.485 requires the Office of Kentucky Nature Preserves to make and publish administrative regulations for the conduct of office affairs. This administrative regulation establishes the requirements for transacting the business of the office.
History: 13 Ky.R. 1319; eff. 2-10-1987; 45 Ky.R. 1772, 2600; eff. 4-5-2019; Crt eff. 3-25-2026.

400 KAR 2:080 Dedication of nature preserves and registration of natural areas {#sec-400-kar-2-080 omnilex-key=us-ky-regs-official--title-400--400 KAR 2:080}

Section 1. Dedication of Nature Preserves.

(1) Upon the determination by the director, in accordance with KRS 146.485(6), (9), and (12), that an area constitutes a natural area worthy of protection through dedication as a nature preserve, and that the owner is willing to have the land or a portion thereof dedicated as a nature preserve, the office may dedicate the natural area as a nature preserve.

(2)

(a) A natural area shall become a nature preserve upon signature of the director upon the articles of dedication.

(b) Articles of dedication shall be recorded in the county in which the natural area is located, the office of the secretary of state, and the office.

Section 2. Articles of Dedication.

(1) The articles of dedication shall be used for the management of each nature preserve. Management, use, development, and public access of each nature preserve shall be in accordance with the provisions set forth in the articles of dedication.

(2) The articles of dedication may contain restrictions relating to management, use, development, transfer, and public access, as well as other provisions as necessary to further the purposes of the Act.

(3) Articles of dedication may vary in provisions from one (1) nature preserve to another in accordance with differences in the characteristics and conditions of the area involved, or for other reasons found necessary by the office and the landowner, grantor, devisor, or donor.

Section 3. Amendment of Articles of Dedication.

(1) Articles of dedication may be amended by the office upon a finding that the amendment shall not permit an impairment, disturbance, use, or development of the nature preserve inconsistent with the purposes for which the area was dedicated or inconsistent with the Act. An amendment to articles of dedication shall not be made without the written approval of the Kentucky Heritage Land Conservation Fund Board in accordance with KRS 146.570(3).

(2) If fee simple ownership is not held by the Commonwealth of Kentucky, an amendment to the articles of dedication shall not be made without the written consent of the owner of other interests therein.

(3) Findings and determinations of the office to amend articles of dedication shall be set forth in the minutes of the board.

Section 4. Buffer Areas.

(1) For the purpose of protecting a nature preserve, adjoining land that is not otherwise suitable for dedication as part of the nature preserve may be dedicated as a buffer area in the same manner as a nature preserve.

(2) The articles of dedication may contain provisions for the management, use, development, and public access of the buffer area that differ from those for the adjacent nature preserve.

Section 5. Registration of Natural Areas.

(1) Upon the determination by the director, in accordance with KRS 146.485(6), (9), and (12), that an area constitutes a natural area worthy of preservation, which is not otherwise available for dedication, the area shall be entered into the register of natural areas.

(2) An area shall not be registered without the consent of the landowner or managing public agency.

(a) The consent may include an agreement by the landowner to give notice to the office of any change in ownership, allow limited public access, or include voluntary management agreements designed to protect the natural features of the area.

(b) Upon request of the landowner or managing public agency the location of registered areas shall be kept confidential and not released as a public record of the office. Specific information as to the location of the registered natural area also may, upon determination by the office, be restricted so as to assure protection of the natural features and limit uncontrolled visitation.

(3) Registration of certain natural areas, where no landowner or managing public agency can give consent, involving stream segments deemed waters of the Commonwealth, as defined by KRS 224.1-010(32), shall be by determination of the office.

(4) Natural areas owned in fee simple by the office, but not dedicated as a nature preserve, shall be managed under a management plan in accordance with 418 KAR 1:060 and this chapter.

Section 6. Identification of Natural Areas. For the purposes of identifying natural areas for potential conservation, the office shall develop, maintain, and periodically update an inventory database of natural types, ecological communities, flora and fauna. The office shall use the inventory database, and the best available scientific information, to identify species and ecological communities to be monitored by the office. This inventory database and all relevant scientific data collected by the office or other from research, studies, inventories, management plans, permits, or other means shall be incorporated into a central clearinghouse database pursuant to KRS 146.485.

Section 7. Selection of Custodian.

(1) If the office has acquired an interest less than fee simple in a nature preserve, the selection of a custodian may be made by the owner of the other interest therein, in accordance with 400 KAR Chapters 2 through 4 and the articles of dedication for the nature preserve. Otherwise the office shall determine the custodian, if any in accordance with KRS 146.485(6), (9), and (12).

(a) The custodian shall demonstrate to the office the ability to administer the nature preserve in accordance with the articles of dedication and 400 KAR Chapters 2 through 4.

(b) The office shall act as custodian of a nature preserve until such time as a custodian is approved, or if the custodian fails to administer a nature preserve in accordance with the articles of dedication and 400 KAR Chapters 2 through 4.

(2) If the office has acquired a fee simple interest in a nature preserve, the office may select a custodian.

(a) The office shall publish notice of its intent to select a custodian in the county or counties, in which the preserve is located, and for the state at large.

(b) The notice shall state:

The location of the nature preserve;
Where the articles of dedication are recorded;
That a written proposal shall be submitted to the office;
The date by which the proposal shall be submitted; and
The address to which the proposal shall be submitted.

(c) The date by which the written proposal shall be submitted to the office shall be not less than sixty (60) days after the date of publication of the notice.

(d) A hearing shall be conducted for the purpose of selecting a custodian pursuant to the provisions of 400 KAR 2:100.

History

RELATES TO: KRS 146.410, 146.420, 146.440, 146.470, 146.490, 146.505
STATUTORY AUTHORITY: KRS 146.460, 146.465, 146.475, 146.485, 146.495
NECESSITY, FUNCTION, AND CONFORMITY: KRS 146.485 requires the office to establish requirements for the selection, acquisition, management, protection, and use of natural areas and nature preserves, and to maintain a state registry of natural areas, an inventory of natural types, flora and fauna, and other records of natural areas and nature preserves. This administrative regulation establishes procedures for the dedication and maintenance of nature preserves and the registration and maintenance of inventories relating to natural areas and nature preserves.
History: 13 Ky.R. 1321; eff. 2-10-1987; 45 Ky.R. 1773, 2601; eff. 4-5-2019; Crt eff. 3-25-2026.

400 KAR 2:090 Management, use, and protection of nature preserves and natural areas {#sec-400-kar-2-090 omnilex-key=us-ky-regs-official--title-400--400 KAR 2:090}

Section 1. Applicability. This administrative regulation shall apply to a nature preserve unless a specific exception is set forth in the articles of dedication. The reasons for any exception shall be set forth in the records of the office. This administrative regulation shall also apply to undedicated natural areas protected by the office unless a specific exception is set forth in the management plan or an administrative regulation.

Section 2. Boundary Markers.

(1) Boundaries shall be made evident by posting boundary markers in a conspicuous manner.

(2) If a boundary fence or barrier is installed, it shall not be in a form that will create a detrimental effect on the movement of wildlife or other natural objects.

Section 3. Encroachments. There shall not be encroachments of structures, easements, rights-of-way, or land uses that do not conform to this administrative regulation and with the purposes and definition of a nature preserve or natural area as established in KRS 146.410 to 146.530, except as allowed by the nature preserves articles of dedication or natural area management plan.

Section 4. Emergency Situations.

(1) An emergency situation shall be reported immediately to the office.

(2) An emergency situation that requires immediate action to prevent injury to persons or damage to property shall be handled in a manner that minimizes damage to natural conditions.

Section 5. Internal Access Lanes.

(1) An internal vehicular access lane shall be installed and maintained only where essential for patrol, fire control, management, or research activities and shall be in accordance with the management plan.

(2) An internal vehicular access lane shall:

(a) Be limited to service vehicles or, in an emergency situation, rescue vehicles; and

(b) Provide a single track not to exceed ten (10) feet in width.

Section 6. Fire Control.

(1) If a firebreak is needed, it shall be constructed in a buffer area if possible.

(a) A firebreak shall be kept to a minimum and shall be constructed only in accordance with the management plan and prescribed fire plan.

(b) A temporary firebreak made by mowing, raking, blowing, wetting, or black lining may be used in conjunction with a prescribed burn.

(2)

(a) A wildfire shall be brought under control as quickly as possible if there is imminent danger to lives or adjacent property.

(b) Fire lines on nature preserves shall be constructed with hand tools or mowing equipment rather than heavy equipment, to minimize damage to the preserve.

(c) If there is no danger to lives or adjacent property and the fire can be contained at the boundary, the office may assess the benefit of allowing a wildfire to burn and shall inform the entity having fire suppression responsibility of its decision to suppress a wildfire or to allow it to burn.

(d) There shall not be any cleanup, fire hazard reduction, or replanting after a fire within a nature preserve, except with the written approval of the office. Approval shall be based upon health and safety considerations or the need for habitat restoration.

(3) If undertaken, prescribed burning shall be conducted in accordance with a prescribed fire plan prepared for each burn unit, approved by the executive director, and in accordance with the management plan. Prescribed burn plans shall be to current Kentucky Prescribed Fire Council Standards pursuant to KRS 149.175. Prescribed burn lines may be constructed with heavy equipment only if required for habitat restoration implementation under the management plan.

(4) During a prescribed burn:

(a) Fire shall be kept away from fences and other structures that could be damaged;

(b) Burning shall not be done under conditions more hazardous than specified in the prescribed burn plan;

(d) The use of a vehicle or equipment shall:

Be specified in the prescribed burn plan; and
Not cause permanent damage or alteration to the natural features of a nature preserve.

Section 7. Trails.

(1) A trail system shall conform to the objectives of the nature preserve or natural area. A trail shall:

(a) Be designed to affect only part of the property and to have minimal impact on natural features; and

(b) Not have a significant impact on animals or plants monitored by the office or on archaeological resources located within the property.

(2) Location and form of a trail other than a natural wildlife path shall be approved or denied by the office, in accordance with the management plan.

(3) A trail shall be kept to a single file width sufficient to allow one (1) person to pass another but not wide enough to allow two (2) or more people to walk abreast of one another and shall be adequate to provide for permitted use of a nature preserve and to prevent erosion, trampling of vegetation, and other deterioration.A wider trail may be constructed if the surrounding vegetation type, such as grasslands would require excessive maintenance to keep the trail open, or a wider preexisting path was established prior to designation as a nature preserve or natural area. These wider trails shall be specified in the nature preserve management plan.

(4) Trail construction.

(a) Use of paving materials, footbridges, or elevated walks shall be permissible if provided for in the trail plan section of the management plan, but shall be kept to a minimum in order to limit damage.

(b) Synthetic materials, painted or chemically treated wood, or stone or earth materials from outside the property shall not be used in trail construction unless specified in the management plan.

(5) Animals or plants monitored by the office shall not be removed, damaged, or altered in trail construction or maintenance.

Section 8. Other Structures and Improvements.

(1) Necessary signs, information kiosks, trash receptacles, and minor structures required to house research instruments or hand tools shall be permitted within a nature preserve or natural area if specifically required in the management plan or permitted by the office for activities consistent with KRS 146.200 through 146.619.

(2) Any other structure in a dedicated nature preserve shall be located in a service area.

(3) Any sign or structure shall be approved or denied by the office, in accordance with the management plan.

Section 9. Service Areas. Service areas may be established within a nature preserve to provide access and parking, management facilities, and visitor facilities. Provision for a necessary service area may be included in the articles of dedication or after a finding by the office that the designation is warranted and in accordance with the articles of dedication.

Section 10. Scenic and Landscape Management.

(1) Measures shall not be taken to alter natural growth or features for the purpose of enhancing the beauty, neatness, or amenities of a nature preserve, except as established in this section and Sections 2, 5, and 7 through 9 of this administrative regulation. Cutting of grass, brush, or other vegetation, thinning of trees, removal of dead wood, opening of scenic vistas, or planting shall not be performed except after a finding by the office that the action does not irreparably harm the preserve and is in accordance with the management plan.

(2) Installation of guard rails, fences, steps, and other devices necessary for visitor safety shall conform to the management plan. Dead trees or branches that constitute a safety hazard to persons on trails or in other authorized use areas may be felled or cleared.

(3) Except as provided in articles of dedication or as approved by the office, there shall not be any removal, introduction or consumptive use of any material, product, or object from a nature preserve, except as established in this administrative regulation. The following activities shall be prohibited on dedicated nature preserves:

(a) Grazing by domestic animals;

(b) Farming;

(d) Gathering of plant or mushroom products;

(e) Mining, quarrying or mineral extraction, or fossil or rock collection;

(f) Dumping, burying, or spreading of garbage, trash, or other materials;

(g) Logging; and

(h) Any other human activity that results in damage to or loss of natural features of the preserve.

(4) An artifact on a nature preserve shall only be removed or demolished as follows:

(a) An old interior fence may be removed. Prior to removal, its location shall be mapped, leaving posts to mark boundaries between former land uses; and

(b) Rubbish may be removed.

(5) Structures lacking utilitarian, historical, scientific, or habitat value may be demolished or removed.

Section 11. Water Level Control. Natural water levels shall not be altered on nature preserves. Natural water levels on natural areas may be altered only if the office determines it is needed for habitat restoration to benefit monitored species or ecological communities and is part of the management plan. Water levels that have been altered by humans may be changed if identified as being essential for the maintenance or restoration of natural conditions.

Section 12. Erosion Control. Erosion and soil deposition due to past or present disturbance by humans or natural conditions within or outside of a nature preserve may be controlled as needed for the maintenance or restoration of natural conditions.

Section 13. Management of Animals and Plants.

(1) Control of plant succession.

(a) Control of plant succession by deliberate manipulation may be undertaken if preservation or restoration of a particular vegetation type or preservation of animals or plants monitored by the office is designated an objective of the nature preserve or natural area by the office.

(b) If undertaken, plant succession control measures shall be undertaken as established in the management plan to comply with objectives referenced in paragraph (a) of this subsection.

(c) Vegetation may be managed. If managed, the limitations established in subparagraphs 1. through 3. of this paragraph shall apply.

Plant species not native to the site or vicinity may be eliminated by cutting, girdling, grubbing, cut stump, or basal or foliar application of specified herbicide.
The time of burning during the year, the frequency of burning, and the fractional amount of the area that may be burned each year shall be specified.
Invading native woody species may be eliminated or controlled by cutting, girdling, grubbing, cut stump, or basal or foliar application of specified herbicide.

(d) The use of herbicides shall be specified in the management plan for each nature preserve natural area.

(2) Control of noxious species.

(a) Plants or animals that are determined by the office, in accordance with KRS 146.485(6), (9), and (12), to be noxious in fact shall be controlled only if they are documented as jeopardizing populations of plants and animals or the natural integrity.

(b) Except for removal from a trail, access lane, or firebreak as authorized by this administrative regulation, there shall not be any control of a native plant that is not noxious but could otherwise appear undesirable.

(c) There shall not be any control of native predators, rodents, insects, snakes, or other animals, even though they could appear harmful or undesirable, unless they are documented as jeopardizing populations of native plants or animals, or the natural integrity.

(d) There shall not be any use of a pesticide except as authorized in the management plan.

(3) Control of exotic species.

(a) Control of exotic plants or animals may be undertaken. If control of exotic plants is undertaken, it shall be done in accordance with subsection (1)(c) of this section.

(b) If control of exotic animals is undertaken it shall be done in accordance with subsection (2) of this section.

(4) Any measure for population control of any species shall be established in the preserve management plan.

(5) Management of plants or animals monitored by the office and species of management concern.

(a) Habitat manipulations and protective measures in favor of particular species shall be undertaken only as approved by the office. Approval shall be based upon a finding by the office that describes the proposed activities and addresses species life history, habitat requirements of the species, characteristics and objectives of the preserve, and other relevant information.

(b) Control of plant succession in favor of particular species shall be as established in this administrative regulation.

(6) Introduction of plants and animals. Plants, animals, or their reproductive bodies shall not be brought into a nature preserve or moved from one (1) place to another within a preserve except with approval of the office. Approval shall be based upon scientific evidence documenting the species' historical occurrence in the ecosystem. Restoration shall be performed with caution and based on a finding that the actions shall not adversely affect natural conditions on the nature preserve. Habitat or species restoration on undedicated natural areas shall conform to the management plan.

Section 14. Use Tolerance.

(1) Human use of a nature preserve or natural area shall be allowed only to the extent and in a manner that shall not impair natural conditions.

(2) The articles of dedication or management plan may specify the controls and restrictions to be placed on access and use.

(3) The office as owner, or the landowner and the office upon agreement, may further restrict access and use as necessary to protect the nature preserve or natural area.

Section 15. Character of Visitor Activity.

(1) Visitor activity shall be regulated to prevent disturbance of a nature preserve or natural area beyond what it can tolerate without permanent deterioration. A visitor without a permit for research or educational activities shall be restricted to trails and areas open to off-trail use and may be otherwise restricted in movement. A person wishing to traverse a nature preserve or natural area elsewhere than on a trail or other area open to visitation shall obtain permission from the office.

(2) Public use shall be in accordance with the articles of dedication of a nature preserve or management plan of a natural area.

(3) Hunting, fishing, and trapping on a nature preserve shall not be allowed unless provided for in the articles of dedication for the nature preserve and shall be subject to 400 KAR Chapter 2. The office may approve hunting, fishing, trapping, or other control methods if necessary to ensure that the preserve is protected from a documented imbalance of species or impending animal disease. Hunting, fishing, and trapping on a natural area shall not be allowed unless provided for in the management plan and shall be subject to 401 KAR Chapter 2.

(4) Except for a service animal, a visitor shall not bring an animal into a nature preserve. A visitor shall not bring an animal into a natural area, except for a service animal, unless approved in the management plan.

(5) A visitor carrying a deadly weapon on a nature preserve or natural area shall not discharge the weapon unless it is necessary for either self-defense or hunting is provided for in the management plan, articles of dedication, if any, and in accordance with this administrative regulation.

(6) A nature preserve or natural area that is open to visitors shall be open sunrise to sunset.

(7) Trails shall be open to foot traffic only. Travel on horse, bicycle, or motorized vehicle shall be prohibited at all times.

(8) Rock climbing and rappelling shall be prohibited at all times.

(9) Possessing or using non-prescription drugs or alcohol shall be prohibited at all times.

(10) Camping, picnicking, building fires, using audio equipment (except if part of research approved by the office) in accordance with KRS 146.570(3) shall be prohibited at all times on nature preserves and prohibited on natural areas unless approved in the management plan.

(11) Collecting plants, fungi, animals, minerals, rocks, wood, or artifacts shall be prohibited at all times except for approved scientific studies in accordance with Section 19 of this administrative regulation.

Section 16. Access Control.

(1) Ingress and egress shall be allowed only at locations and under conditions as may be specified by the office in the management plan.

(2) The owner, custodian, and office have the authority to further limit access as may be necessary for protection and proper management.

Section 17. Orientation and Guidance of Visitors. Orientation and guidance of visitors shall be in accordance with the articles of dedication or management plan, and as approved by the office. Interpretive signs, structures or labels shall be of uniform appearance.

Section 18. Permission for Research, Group, or Educational Activities.

(1) A person wishing to engage in research, group, or educational activities on a nature preserve or natural area shall secure prior permission of the office. If the activities are to be carried on by a group, permission may be issued to the group leader who shall be responsible for the actions of the group. Permission or denial shall be based upon information provided in the application for permission, the purpose stated for the research, and an assessment of any damage that could result from the activity.

(2) A permit shall be required for educational, research, or group use of a nature preserve or natural area if activities include collecting or activities other than walking and observation or if the preserve is not open to the public or if the group is larger than ten (10) individuals.

(3)

(a) The application for a permit shall be on Natural Areas/Nature Preserves User Permit Application, KNP01 or Research Permit Application, KNP02 and shall include the:

Name of the applicant;
Mailing address and electronic mailing address of the applicant;
Occupation of the applicant;
Professional qualifications of the applicant;
General field of interest of the applicant; and
Description of the applicant's proposed activities, including the:

a. Objectives, methods, and procedures to be followed;

b. Records to be kept;

c. Location and duration of the project areas to be visited;

d. Frequency and length of visits; and

e. Detailed description of disturbances to be made.

(b) Information shall be provided on the:

Species or objects to be taken;
Number of specimens;
Method of taking; and
Disposition of specimens.

(4)

(a) The approved permit may contain specific provisions and restrictions.

(b) The permit may be modified, suspended, or revoked by the office for violations of the conditions of the permit, this section, or based upon a determination of the office that the activity jeopardizes the nature preserve or natural area.

(d) A permit for an activity of no more than the calendar year expires on December 31 of that year. A permit for an activity of longer than one (1) year may be extended annually upon submission of an annual report and request for an extension.

(e) A final report with results, including data collected in a format supplied by the office, shall be submitted at the conclusion of the research. This data may be incorporated by the office into a research clearinghouse and inventory database in accordance with KRS 146.485 and 400 KAR 2:080 Section 6.

Section 19. Collecting on Nature Preserves or Natural Area.

(1) A person wishing to collect a scientific specimen for deposition in a permanent institutional collection available to the public or for purposes of an approved research project shall do so pursuant to terms of permission as established in this administrative regulation.

(2) Permission may restrict the collecting of certain species or specimens. Material for classroom laboratory observation or study shall not be collected. Exceptions may be provided in the articles of dedication of the nature preserve, or as set forth in the management plan.

Section 20. Record.

(1) A record shall be kept for each nature preserve and natural area.

(2) One (1) copy of the record required by subsection (1) of this section shall be held by the office at its Frankfort location.

(3) The record shall include reports from the custodian and all other pertinent documentary material, studies, reports, and descriptions of significant events.

(4) Responsibility for assembling the record shall be with the office, in conjunction with any custodian of a nature preserve.

Section 21. Management Plan. Each nature preserve and natural area shall be managed in strict accordance with the most recent management plan in compliance with the requirements of KRS 146.200 through 146.619, articles of dedication if any, and this chapter that sets forth the allowable activities to take place on the nature preserve or natural area as related to:

(1) Natural community and rare species protection;

(2) Resource restoration and enhancement;

(3) Archeological and historical resource protection;

(4) Staffing;

(5) Security;

(6) Safety;

(7) Public access and interpretation;

(8) Maintenance of the nature preserve or natural area;

(9) Coordination of management activities with adjacent landowners and other federal and state resource protection agencies; and

(10) Research and education.

Section 22. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) Natural Areas/Nature Preserves User Permit Application, KNP01, July 2018; and

(b) Research Permit Application, KNP02, July 2018.

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Office of Kentucky Nature Preserves 300 Sower Boulevard, Frankfort, Kentucky 40601, Monday through Friday, 8:00 a.m. to 4:30 p.m.

History

RELATES TO: KRS 146.410, 146.440, 149.175
STATUTORY AUTHORITY: KRS 146.465, 146.475, 146.485
NECESSITY, FUNCTION, AND CONFORMITY: KRS 146.485(2) authorizes the commission to promulgate administrative regulations for the management, use, and protection of nature preserves. KRS 146.465 authorizes the commission to acquire natural areas for the purpose of dedicating the areas as nature preserves. KRS 146.475 requires that a nature preserve shall be subject to administrative regulations promulgated by the commission. This administrative regulation establishes the requirements for the management and use of all nature preserves and to fulfill the purposes of KRS 146.440.
History: 13 Ky.R. 1322; eff. 2-10-1987; 38 Ky.R. 623; 1123; 1-6-2012; 45 Ky.R. 1776, 2602; eff. 4-5-2019; Crt eff. 3-25-2026.

400 KAR 2:100 Hearings and appeals {#sec-400-kar-2-100 omnilex-key=us-ky-regs-official--title-400--400 KAR 2:100}

Section 1. Applicability. The office may conduct a public hearing for any reason, including determining:

(1) If there exists an imperative and unavoidable public necessity that justifies the taking of a nature preserve or natural area, or any part thereof, by another public body, or disposition of a nature preserve or natural area or any part thereof by the office;

(2) If proposed amendments to the articles of dedication of a nature preserve will not permit an impairment, disturbance, use, or development of the nature preserve that is inconsistent with the articles of dedication or the Act;

(3) If differences exist in the characteristics and conditions of a proposed nature preserve, or other reasons, that justify making an exception in the articles of dedication to the requirements of these administrative regulations; and

(4) The custodian of a nature preserve or natural area if the property is owned by the office in fee simple.

Section 2. Notice of Public Hearings. Notice of public hearing shall be given by the office in accordance with KRS Chapter 424.

(1) The notice shall:

(a) State the time, place, and purpose of the public hearing; and

(b) Be published:

Not less than seven (7) nor more than twenty-one (21) days prior to the public hearing; or
In the county or counties, in which the nature preserve or natural area is located, and for the state at large.

(2) The notice may:

(a) Be published more than once;

(b) State the address to which written comments on the purpose of the public hearing may be submitted and the date by which those written comments shall be submitted.

Section 3. Public Hearings.

(1) The public hearing shall be conducted in accordance with paragraphs (a) through (e) of this subsection.

(a) The public hearing shall be held at a time and place to be set by the office.

(b) Any interested person may appear at the public hearing and make an oral or written presentation regarding the purpose of the public hearing. The office may regulate the length, order, and excessive repetition of oral presentations.

(d) The office shall consider all written and oral presentations in making its determination.

(e) The office shall issue a final determination within sixty (60) days of the public hearing. The determination shall set forth the findings of the office in reaching its determination.

(2) Copies of the final determination shall be sent to any person who made a written or oral presentation at the public hearing and any other person who makes a request in writing to the office for a copy.

Section 4. Appeals.

(1) Any person who participated in the public hearing and considers himself aggrieved by the determination made by the office may file, in accordance with 400 KAR Chapter 1, a petition alleging that the determination is contrary to law or fact and is injurious to him or her, the grounds and reasons therefor, and demand a hearing. Unless 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 not less than twenty-one (21) days after the date of the notice unless the person complained against waives in writing the twenty-one (21) day period. The right to demand a hearing pursuant to this section shall be limited to a period of thirty (30) days after the petitioner has had actual notice of the determination complained of, or could reasonably have had notice.

(2)

(a) All hearings, other than conferences, under this chapter shall be held before a hearing officer, duly qualified to practice law in the Commonwealth of Kentucky, who may be:

A full-time employee of the cabinet;
Serve by contract; or
Paid on a per diem basis.

(b) After the conclusion of the hearing, the hearing officer shall within thirty (30) days make to the secretary a report and recommended order that shall contain a finding of fact and a conclusion of law. If the secretary finds upon written request of the hearing officer that additional time is needed, the secretary may grant an extension. The hearing officer shall serve a copy of the report and recommended order upon all parties of record and their attorney of record to the proceeding, and the parties shall be granted the right to file exceptions thereto within fourteen (14) days of service.

(c) Any party may submit a written response to exceptions within twenty-one (21) days of service of the report and recommended order. Exceptions and responses not timely filed shall be noted and made a part of the record but shall not be considered by the secretary in making a final order.

(d) The secretary shall consider the report, exceptions, and recommended order and decide the case. The secretary may designate a deputy to sign any or all final orders of the cabinet, whether or not the orders are the result of hearing or agreement. The decision shall be served by mail upon all parties and their attorney of record, as well as all parties under Section 3(2) of this administrative regulation, and shall be a final order of the cabinet.

(3) Any party to a hearing under this subsection may:

(a) Be represented by counsel;

(b) Make oral or written argument;

(d) Cross-examine witnesses; or

(e) Take any combination of these actions.

(4) The record of the hearing 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.

(5) The hearing office shall recommend that the secretary approve the final determination of the office unless, based upon the findings set forth in the final determination or any exceptions thereto, the secretary finds:

(a) There is no imperative and unavoidable public necessity due to the existence of a viable alternative to the proposed granting or disposition of a nature preserve, or natural area, or any part thereof;

(b) The determination of the office is inconsistent with the articles of dedication or the Act; or

History

RELATES TO: KRS 146.465, 146.480, 146.495, Chapter 424
STATUTORY AUTHORITY: KRS 146.475, 146.485, 146.530
NECESSITY, FUNCTION, AND CONFORMITY: KRS 146.475 and 146.485 require the office to establish administrative regulations for the protection of nature preserves. KRS 146.530 requires the office to establish a procedure for orders and final determinations of the office to be appealed administratively. This administrative regulation establishes the procedure to be followed by the office in conducting hearings on issues related to nature preserves.
History: 13 Ky.R. 1326; eff. 2-10-1987; 45 Ky.R. 1780, 2605; eff. 4-5-2019; Crt eff. 3-25-2026.

Chapter 3 Rare Plant Recognition

400 KAR 3:010 Definitions for 400 KAR Chapter 3 {#sec-400-kar-3-010 omnilex-key=us-ky-regs-official--title-400--400 KAR 3:010}

Section 1. Definitions.

(1) "Candidate" means a plant species that appears to be rare in the state, and for which substantive evidence as to its status is not available, and has not yet been included on the state endangered or threatened lists.

(2) "Office" is defined by KRS 146.605(1).

History

RELATES TO: KRS 146.485, 146.610
STATUTORY AUTHORITY: KRS 146.485, 146.610
NECESSITY, FUNCTION, AND CONFORMITY: KRS 146.610 authorizes the Office of Kentucky Nature Preserves to promulgate administrative regulations for identification and designation of state threatened and endangered plant species. This administrative regulation establishes definitions for these provisions.
History: 28 Ky.R. 2121; 2333; eff. 5-16-2002; 45 Ky.R. 1782; eff. 4-5-2019; Crt eff. 3-25-2026.

400 KAR 3:020 Criteria for identifying and designating endangered or threatened species of plants {#sec-400-kar-3-020 omnilex-key=us-ky-regs-official--title-400--400 KAR 3:020}

Section 1. The office shall utilize the criteria in subsections (1) through (3) of this section in its identification and designation of additional species pursuant to KRS 146.610(2)(b):

(1) Only species that have been described and named in a refereed professional scientific journal and determined by the office to be widely accepted among professional botanists shall be considered;

(2) Hybrids shall not be listed unless they are known to be naturally reproducing; and

(3) Only plant species native to Kentucky shall be considered.

History

RELATES TO: KRS 146.485, 146.610, 50 C.F.R. 17.12, 23.23
STATUTORY AUTHORITY: KRS 146.485, 146.610
NECESSITY, FUNCTION, AND CONFORMITY: KRS 146.610(2)(a) and (b) authorizes the Office of Kentucky Nature Preserves to promulgate administrative regulations for the identification and designation of state threatened or endangered plant species. This administrative regulation establishes the requirements for identifying and designating threatened or endangered plants.
History: 28 Ky.R. 2122; 2334; eff. 5-16-2002; 33 Ky.R. 1634; 2278; eff. 3-9-2007; 45 Ky.R. 1783, 2606; eff. 4-5-2019; Crt eff. 3-25-2026.

400 KAR 3:030 Procedures for inclusion, removal, or change of status of plant species on the state endangered or threatened list {#sec-400-kar-3-030 omnilex-key=us-ky-regs-official--title-400--400 KAR 3:030}

Section 1. Candidate Nomination.

(1) Any person may nominate a candidate for inclusion, removal, or change of status on the state endangered or threatened list.

(2) The nomination shall be in writing and submitted to the Director of the office, 300 Sower Boulevard, Frankfort, Kentucky 40601.

(3) Prior to consideration for inclusion on a list, a candidate shall be established as occurring in the state by a voucher specimen deposited in a public herbarium or photographic documentation that has been confirmed by the office, and accompanied by:

(a) Written documentation as to the specific location of the collection site;

(b) Date of collection; and

(4) The office may consult with the Kentucky Academy of Science and other experts regarding the status of listed and candidate plant species.

Section 2. Consideration of Candidate.

(1) If the requirements of Section 1 of this administrative regulation have been satisfied, the office shall, utilizing the factors established in KRS 146.610(2)(a) and the criteria established in 400 KAR 3:020, Section 1, consider the candidate for inclusion, removal, or change of status on the state endangered or threatened list.

(2) The office may conduct its own investigation as to the status of the candidate.

(3) The office:

(a) Shall place a candidate into a category:

For which it is nominated; or
Other than the one (1) for which it has been nominated; or

(b) May decline to place the candidate on any list.

(4) The office shall notify the person who nominated the candidate of the office's decision on the listing of the species.

History

RELATES TO: KRS 146.485, 146.610
STATUTORY AUTHORITY: KRS 146.485, 146.610
NECESSITY, FUNCTION, AND CONFORMITY: KRS 146.610 authorizes the Office of Kentucky Nature Preserves to promulgate administrative regulations for the identification and designation of state threatened and endangered plant species. This administrative regulation establishes procedures for nomination and inclusion of plant species to these lists.
History: 28 Ky.R. 2123; 2334; eff. 5-16-2002; 45 Ky.R. 1785, 2607; eff. 4-5-2019; Crt eff. 3-25-2026.

400 KAR 3:040 Endangered or threatened plant lists {#sec-400-kar-3-040 omnilex-key=us-ky-regs-official--title-400--400 KAR 3:040}

Section 1. Endangered Lists. The plant species established in the Table in this section, based on the factors in KRS 146.610(2)(a) and 400 KAR 3:020, Section 1, shall be considered endangered In the Commonwealth of Kentucky.

Section 2. Threatened Lists. The plant species established in the Table in this section,, based on the factors in KRS 146.610(2)(a) and the criteria established in 400 KAR 3:020, Section 1, shall be considered threatened in the Commonwealth of Kentucky.

History

RELATES TO: KRS 146.485, 146.610
STATUTORY AUTHORITY: KRS 146.485, 146.610
NECESSITY, FUNCTION, AND CONFORMITY: KRS 146.610(2)(a) and (b) authorize the Office of Kentucky Nature Preserves to promulgate administrative regulations for the identification and designation of state threatened or endangered plant species. This administrative regulation establishes the lists of threatened or endangered plant species.
History: 28 Ky.R. 2124; 2334; eff. 5-16-2002; 33 Ky.R. 1635; 2278; eff. 3-9-2007; 45 Ky.R. 1786, 2607; eff. 4-5-2019; Crt eff. 3-25-2026.

Chapter 4 Wild Rivers

400 KAR 4:100 Wild rivers boundaries {#sec-400-kar-4-100 omnilex-key=us-ky-regs-official--title-400--400 KAR 4:100}

Section 1. The boundaries of the stream area of the Cumberland River are as delineated on the map captioned "Designated Wild River Area, Cumberland River," which map is hereby adopted and incorporated herein by reference. The upper access point is the area where Ky. 204 approaches the Cumberland River below Summer Shoals and the lower access point is at Cumberland Falls State Park.

Section 2. The boundaries of the stream area of the Red River are as delineated on the map captioned "Designated Wild River Area, Red River," which map is hereby adopted and incorporated herein by reference. The upper access point is the area where Ky. 746 crosses the Red River and the lower access point is the area where Ky. 715 crosses the river.

Section 3. The boundaries of the stream area of the Rockcastle River are as delineated on the map captioned "Designated Wild River Area, Rockcastle River," which map is hereby adopted and incorporated herein by reference. The upper access point is the area where Ky. 80 crosses the Rockcastle River and the lower access point is the area where Ky. 192 crosses the river.

Section 4. The boundaries of the stream area of the Green River are as delineated on the map captioned "Designated Wild River Area, Green River," which map is hereby adopted and incorporated herein by reference. The upper access point is the area where Dennison Ferry Road meets the Green River and the lower access point is the area of Lock No. 6 on the Green River.

Section 5. The boundaries of the stream area of the Big South Fork of the Cumberland River are as delineated on the map captioned, "Designated Wild River Area, Big South Fork, Cumberland River," which map is hereby adopted and incorporated herein by reference. The upper access point is the area where Difficulty Creek joins the Big South Fork and the lower access point is the area where the Blue Heron Road ends.

Section 6. The boundaries of the stream area of Martins Fork of the Cumberland River are as delineated on the map captioned "Designated Wild River Area, Martins Fork, Cumberland River," which map is hereby adopted and incorporated herein by reference. The upper access point is the area where Martins Fork flows from the Cumberland Gap National Historical Park and the lower access point is the area where Ky. 987 crosses the mouth of Laurel Branch Creek.

Section 7. The boundaries of the stream area of Rock Creek are as delineated on the map captioned "Designated Wild River Area, Rock Creek," which map is hereby adopted and incorporated herein by reference. The upper access point is the area where the Rock Creek Bell Farm Road crosses Big Branch. The lower access point is at the White Oak Junction Bridge.

Section 8. The boundaries of the Little South Fork of the Cumberland River are as delineated on the map captioned "Designated Wild River Area, Little South Fork, Cumberland River," which map is hereby adopted and incorporated herein by reference. The upper access point is the area where the East Coopersville Road fords the Little South Fork and the lower access point is the area where the Lower Morrow Hollow Road crosses the Little South Fork.

Section 9. The boundaries of the stream area of Bad Branch are as delineated on the map captioned "Designated Wild River, Bad Branch," which map is hereby adopted and incorporated herein by reference. The upper access point is the headwaters on Pine Mountain and the lower access point is the area where Ky. 932 crosses Bad Branch.

History

RELATES TO: KRS 146.241, 146.250
STATUTORY AUTHORITY: KRS 146.270, 224.01-110, 224.10-100
NECESSITY, FUNCTION, AND CONFORMITY: KRS 146.250 directs the Secretary to determine generally the boundaries of the Wild Rivers designated in KRS 146.240. The boundaries must include at least the visual horizon of the stream but not extend more than 2,000 feet from the center of the stream. The statute further requires that the Secretary designate access points at the upper and lower boundaries of each stream. This administrative regulation incorporates by reference maps adopted and filed with the regulation delineating the general boundaries of each stream area and specifies the access points to each area. The maps are incorporated by reference as they are too large and cumbersome for reproduction. Copies of the maps are available by request from the Nature Preserves Commission, 300 Sower Boulevard, Frankfort, Kentucky 40601.
History: 400 KAR 004:100. 3 Ky.R. 267; eff. 1-5-1977; Recodified from 400 KAR 1:010, 6-25-1985; 15 Ky.R. 281; 991; eff. 10-26-1988; TAm eff. 11-25-2008; TAm eff. 7-8-2016; Recodified from 401 KAR 4:100; TAm 12-21-2017; Crt eff. 11-6-2018; Crt eff. 10-28-2025.

400 KAR 4:110 Definitions for 400 KAR Chapter 4 {#sec-400-kar-4-110 omnilex-key=us-ky-regs-official--title-400--400 KAR 4:110}

Section 1.

(1) "Access road" means that access constructed or improved to connect a permitted use within a wild river corridor to a public road system.

(2) "Acid-forming substance" means an earth substance that contains sulfide minerals or other materials that, if exposed to air, water, or weathering processes, forms acids that could create acid water.

(3) "Acid water" means drainage with a pH of less than six and zero-tenths (6.0) in which total acidity exceeds total alkalinity.

(4) "Adverse impact" means having a damaging, degrading, or destructive effect on a resource.

(5) "Agricultural use":

(a) Means the use of land for agricultural purposes such as farming, dairying, pasturage, apiaries, horticulture, floriculture, viticulture, and animal and poultry husbandry; and

(b) Does not mean fruit, vegetable, and flower production for personal use.

(6) "Applicant" means the landowner who applies for a change of use permit to allow a change of land use within a wild river corridor.

(7) "Best management practices" means methods, measures, or practices to prevent or reduce water pollution, such as structural and nonstructural controls and operation and maintenance procedures that are applied before, during, or after pollution-producing activities to reduce or eliminate the introduction of pollutants into waterbodies.

(8) "Buffer zone" means an area of natural vegetation having a minimum width of not less than 100 feet, which is retained along each bank of a wild river to maintain aesthetics, bank stability, appropriate water temperatures, fish and wildlife habitat, and stream hydraulics, and to filter debris and waterborne pollutants from surface run-off.

(9) "Cabinet" means the Energy and Environment Cabinet.

(10) "Change of use permit" means a permit issued to a landowner by the office to authorize a change of land use within a wild river corridor.

(11) "Commercial service" means the use of a wild river corridor for monetary profit, such as for concessions, boat rentals, shuttle services, guided trips or tours, commercial boat docks, wharves, and other recreational facilities.

(12) "Conforming land use" means a land or resource use that conforms to the provisions and intent of the Kentucky Wild Rivers Act and the management plan developed pursuant to KRS 146.270 for a given wild river corridor.

(13) "Cultural character" means the condition, composition, or appearance of an archaeological or historical feature that contributes to its outstanding, unique, or otherwise significant value.

(14) "Disturbed area" means an area having a manmade surface disturbance.

(15) "Existing use" means a land use that is in existence at the time a wild river is designated by the Kentucky General Assembly.

(16) "Flood plain" means the area in a watershed that is subject to flooding at least one (1) time in every 100 years.

(17) "Kentucky Wild Rivers Act" means KRS 146.200 through 146.360.

(18) "Landowner" means the owner of a property or an interest in a property conveyed by lease or other legal conveyance.

(19) "Land use plan" means a plan of action submitted to the office as part of a change of use permit application.

(20) "Log landing" means a collecting point for holding cut timber.

(21) "Management plan" means the individual plan adopted by the office pursuant to KRS 146.270 as the official document guiding the management and protection of a given wild river corridor.

(22) "Natural character" means the condition or appearance of an area or resources that are expected to exist in nature undisturbed by human actions.

(23) "Natural vegetation" means the species, or combinations of species, of plants that exist, or are expected to exist, in nature undisturbed by human actions.

(24) "New land use" means a land use within a wild river corridor that is not in existence at the time a given wild river corridor is designated by the Kentucky General Assembly.

(25) "Office" is defined by KRS 146.210(8).

(26) "Operator" means the person, partnership, contractor, subcontractor, company, or corporation responsible for the construction, maintenance, operation, and reclamation of a permitted use.

(27) "Permitted use" means a nonconforming land use within a wild river corridor that has been authorized by the office through the issuance of a change of use permit.

(28) "Permittee" means a landowner who has obtained a change of use permit from the office.

(29) "Produced water" means water and pollutants and combination thereof resulting, obtained, or produced from the exploration, drilling, or production of oil or gas.

(30) "Professional forester" means a person holding a degree in forestry from a school with an accredited forestry program.

(31) "Research plan" means a plan of action submitted to the office for approval prior to initiating a scientific study within a given wild river corridor.

(32) "Resource removal" means exploration for, extraction, or removal of a natural resource such as coal, oil and gas, minerals, rock, gravel, sand, and soil.

(33) "Secretary" means the Secretary of the Energy and Environment Cabinet.

(34) "Selective cutting (of timber)" means the selective removal during one (1) entry of single trees from an area so that a specified minimum residual stocking level is retained and evenly distributed over the harvest area. The purpose of the cut is to create or maintain an uneven-aged stand of timber.

(35) "Significant feature" means an outstanding, unique, rare, or otherwise significant aesthetic, scenic, botanical, zoological, geological, historical, archaeological, scientific, or recreational feature identified in the management plan or by the management agency as occurring within a given wild river corridor.

(36) "Skid" means to transport logs by sliding or dragging along the ground.

(37) "Skid trail" means a trail developed for the purpose of skidding logs from the stump to a log landing area.

(38) "Slash" means the residue left after the economically usable portion of cut trees is removed from a harvest area.

(39) "Structure":

(a) Means an aboveground object constructed, built, or installed for a change of use; and

(b) Does not mean sediment ponds, roads, or signs.

(40) "Surface disturbance" means any disturbance of the ground surface that involves the clearing of vegetation or excavation of soil, rock, or other materials occurring on or near the ground surface.

(41) "Surface mining":

(a) Means the breaking of the surface soil in order to facilitate or accomplish the extraction or removal of minerals, ores, or other solid matter or any activity or process constituting all or part of a process for the extraction or removal of minerals, ores, or other solid matter so as to make them suitable for commercial, industrial, construction, or other use; and

(b) Does not mean those aspects of deep mining not having significant effect on the surface, and does not mean excavation or grading conducted solely in aid of on-site farming or construction.

(42) "Toxin-forming substance" means earth materials or wastes that, if exposed to air, water, weathering, or microbiological processes, are likely to produce conditions that are detrimental to biota or uses of water.

(43) "Underground mining" means those aspects of deep mining, including surface effects, involving any open pit or any underground workings from which minerals, ores, or other solid matter is removed for sale, exchange, commercial, or other use, and all shafts, drifts, or inclines leading thereto, including all buildings and equipment, above or below the surface of the ground, used in connection with these workings.

(44) "Visual intrusion" means resulting in the disruption, degradation, or impairment of the natural or primitive appearance of an area in a wild river corridor, as viewed from the river or other designated public use area, and includes any land use that does not remain visually subordinate to the characteristic landscape.

(45) "Watershed" means that area enclosed by a topographic divide from which direct surface run-off from precipitation normally drains by gravity into the stream above a specified point.

(46) "Wild river" or "wild river corridor" means a stream segment and adjacent shoreland within boundaries established in 400 KAR 4:100 that are designated in accordance with KRS 146.241.

(47) "Wild rivers system" means the collective wild rivers as designated in KRS 146.241.

History

RELATES TO: KRS 146.220, 146.241, 146.250, 146.260, 146.270, 146.290, 146.310, 146.350, 146.360
STATUTORY AUTHORITY: KRS 146.270, 224.01-110, 224.10-100
NECESSITY, FUNCTION, AND CONFORMITY: KRS 146.270 authorizes the secretary to promulgate administrative regulations necessary for the preservation and enhancement of wild rivers as established in KRS 146.250, and for control of recreational, educational, scientific, and other uses of these areas in a manner that shall not impair them. Emphasis shall be given to protecting aesthetic, scenic, ecological, historic, archaeological, and scientific features of the areas. This administrative regulation establishes definitions for certain essential terms used in the wild rivers administrative regulations, 400 KAR Chapter 1, which are not clearly defined by their context.
History: 15 Ky.R. 693; 991; eff. 10-26-1988; Recodified from 401 KAR 4:110, 12-21-2017; 45 Ky.R. 1789, 2610; eff. 4-5-2019; Crt eff. 3-25-2026.

400 KAR 4:125 Wild rivers administration {#sec-400-kar-4-125 omnilex-key=us-ky-regs-official--title-400--400 KAR 4:125}

Section 1. General Policy.

(1) Wild rivers shall be managed to preserve their free-flowing condition and to protect the outstanding and unique aesthetic, scenic, recreational, fish and wildlife, botanical, historical, archaeological, and other natural and cultural features that qualified the streams for designation as wild rivers.

(2) Additional management objectives shall be to afford opportunities to enjoy natural streams and to preserve for future generations the beauty of certain areas untrammeled by man. The office shall not encourage public use of areas where it has been determined that the carrying capacity for one (1) or more uses has been reached or exceeded.

Section 2. Management Plans.

(1) The management of a given wild river corridor shall be according to a management plan developed by the office.

(2) The office shall consult with landowners in the affected wild river corridor, citizen groups, industries, and appropriate local, state, and federal agencies in the preparation of each management plan.

(3) Public participation in the development of a management plan shall be provisioned by at last one (1) public hearing on the draft management plan followed by a thirty (30) day comment period prior to finalizing the plan.

(4)

(a) The hearing or hearings, shall be conducted in one (1) of the counties through which the designated portion of the river flows.

(b) Notice of hearing shall be given in accordance with the provisions of KRS Chapter 424. The notice shall:

State the time, place, and purpose of the hearing;
State the name and address of the person from whom a copy of the proposed management plan may be attained;
Be published not less than seven (7) nor more than twenty-one (21) days prior to the hearing;
Be published in the county or counties, through which the designated portion of the river flows, and in at least one (1) major newspaper; and
Include the address to which written comments on the draft management plan may be submitted, and the date by which those written comments shall be submitted.

(c) The hearing shall be conducted by a designated representative of the office who shall control the order of presentation.

(d) Any interested person may appear at the hearing and make an oral or written presentation concerning the draft management plan. All oral presentations shall be recorded.

(e) All written and oral comments shall be considered in the development of the management plan.

(5) Responsibility for the administration and management of a wild river shall be clearly delineated in the management plan for that river, and any management agreements between the office and local, state, or federal agencies having overlapping jurisdiction over lands or waters within the wild river corridor shall be incorporated into the plan.

Section 3. Existing or Conforming Land Uses.

(1) Under the provisions of KRS 146.290, land uses that are lawfully existing at the time the boundaries of a wild river are designated may continue even though the use does not conform to the purpose and intent of the Kentucky Wild Rivers Act or the management plan for a given wild river.

(2) Other than existing uses, land uses within wild river corridors that conform to the purposes and intent of the Kentucky Wild Rivers Act and the duly adopted management plan for each wild river shall not require a change of use permit.

(3) Conforming uses shall include wilderness type recreation such as nonmechanized boating, hiking, hunting, fishing, camping, and sightseeing, as well as scientific research, environmental education, and related activities that preserve the primitive character and natural and cultural resources of the area.

(4) Other land uses shall qualify as conforming uses if they do not involve the clearing of more than one-half (1/2) acre of timber, nor constitute a significant visual intrusion within 100 feet of the river. Conforming uses may include:

(a) The routine maintenance, repair, renovation or replacement of existing roads, buildings, or other structures or improvements to an existing use;

(b) The selective cutting of firewood or individual trees by a landowner for personal or family use;

(d) Fencing;

(e) The removal of noxious weeds from an area using direct application, but not aerial spraying, of herbicides that are short-term and nontoxic to fish and wildlife and that shall not leach into surface waters or groundwater; and

(f) The clearing of diseased or insect- infested trees from an area greater than one-half (1/2) acre upon written authorization from the office based on the recommendation of a professional forester.

Section 4. Permitted Land Uses.

(1) Land use changes authorized by the office through a change of use permit as required by KRS 146.290, shall comply with all applicable standards established in 400 KAR 4:140.

(2) Land use changes that require a change of use permit shall include:

(a) A resource removal, by methods other than surface mining;

(b) The selective cutting of timber as defined by 400 KAR 1:110; and

(c) A new agricultural use that requires clearing of timber from an area greater than one-half (1/2) acre or more in extent.

Section 5. Prohibited Land Uses. Land uses established in subsections (1) through (3) of this section shall be prohibited.

(1) Pursuant to KRS 146.290, surface mining, timber harvest by methods other than selective cutting, and in-stream disturbances shall be prohibited within a wild river corridor.

(2) Prohibited in-stream disturbances shall include dam construction, dredging, spoil or fill deposition, channel diversion, channelization, and mining of streambed materials.

(3) The construction of roads, buildings, or other structures to effect any use other than an existing or permitted land use, as established in this section or Section 4 of this administrative regulation, shall be prohibited.

Section 6. Public Use.

(1) Public use of wild river corridors shall be limited to the public waters and public lands or interests in lands acquired through lease, easement, or other agreement entered into by the landowner. Public use of private property shall require permission from the landowner. Trespassing shall be subject to penalty as established in KRS 146.990. This section applies to the public use of state-owned lands and public waters within wild river corridors.

(2) The office shall make every effort to inform the public that the wild river designation does not authorize public use of privately owned lands and shall prepare maps delineating the boundaries of public lands within wild river corridors to reduce unintentional trespassing.

(3) In accordance with KRS 146.290, transportation shall be by foot, canoe, kayak, boat, with or without electric motor, or other nonmechanized means except on existing public roads, as required for administrative and resource protection purposes, or as necessary to effect an existing or permitted land use.

(4) The office may condition or deny public access to a wild river if use is causing substantial adverse impact on the scenic, aesthetic, natural, cultural, scientific, or recreational resources, if private property is being damaged, or if user safety is being jeopardized.

(5) Cultural artifacts, relics, fossils, and souvenirs shall not be removed from their site of discovery in a wild river corridor. Deliberate damage to plants, animals, artifacts, or other special features shall be prohibited. A written request shall be submitted to and approved by the office, in accordance with the Research Permit Application, KNP02, incorporated by reference in 400 KAR 2:090, prior to the collection of any natural or cultural materials.

(6) Burying, dumping, or depositing litter, soil, garbage, waste, scrap, or other unsightly or offensive materials other than in receptacles provided for this purpose shall be prohibited.

(7) Horseback riding shall be allowed only on trails specifically designated for this use.

(8) Overnight camping and campfires shall be prohibited within thirty (30) feet of a wild river. An open fire shall not be left unattended, and all fires shall be completely extinguished after use. Live vegetation shall not be cut for firewood.

(9) Camping within a state park shall be in accordance with 304 KAR 1:040.

(10) Hunting, fishing, and trapping shall be subject to state and federal fish and wildlife laws and regulations, and shall comply with the conditions established in paragraphs (a) and (b) of this subsection.

(a) The construction of permanent shelters, lean-tos, or other buildings shall be prohibited. Temporary blinds, stands, or other structures shall be erected in a manner that shall prevent injury to trees.

(b) Trapping shall be prohibited within fifty (50) feet of designated boat access sites, boat portage trails, and other designated public hiking trails, picnic areas, and campgrounds.

(11) Carrying or discharging a firearm, bow and arrow, or explosive substances shall be prohibited for any purpose other than hunting in accordance with state wildlife laws and the other provisions of this administrative regulation.

(12) Swimming and other in-stream recreational uses of a wild river shall be in accordance with Office of Water Patrol safety standards (402 KAR 4:080 and 4:130). Entering a wild river from the shores of a state park for swimming, bathing, or other in-stream recreational use shall be allowed only in areas designated as swimming areas by the Department of Parks.

(13) Conduct that disturbs the peace or causes property damage within a corridor shall be prohibited.

(14) Public users of wild rivers shall be encouraged to leave in passing no mark upon the land that might diminish its value to another, and to make every effort to protect and enhance the unspoiled beauty of these areas as components of Kentucky's unique heritage.

Section 7. Enhancement of Recreational Opportunities.

(1) The development of public access to a wild river shall be compatible with the purposes and intent of KRS 146.200 through 146.360 and the duly adopted management plan for a given river, and shall conform to the natural character of the area.

(2) Development of public access may be used to enhance dispersed, nonmechanized recreational opportunities and provide information on safety, orientation, rules and administrative regulations, and interpretation of special features in the area.

(3) Trails constructed within a wild river corridor shall will be designed and maintained to provide for nonmechanized recreational uses and to prevent soil erosion and compaction, trampling of vegetation, and other damage to the natural beauty and resources of the area.

(4) There shall be no cutting or removal of natural vegetation, living or dead, to create scenic vistas, except as expressly provided by law.

Section 8. Commercial Uses.

(1) The operator of a new commercial service within a wild river corridor shall submit written notification to the office not less than thirty (30) days prior to commencing the use.

(2) The construction of access roads, ramps, wharves or boat docks, buildings, or other facilities required to effect a commercial use shall be located outside of a wild river corridor unless authorized by a change of use permit.

(3) The operator of a commercial service on a wild river shall comply with all applicable provisions of this administrative regulation and shall be responsible for ensuring that the commercial use does not impair or contribute to an adverse impact on the aesthetic, scenic, ecological, scientific, recreational, or other significant features in the corridor as identified in the management plan or by the office, or cause substantial damage to soils, vegetation, fish and wildlife, or water quality.

(4) The office may condition or deny commercial use of a wild river, as established in Section 7(4) of this administrative regulation.

(5) In accordance with 304 KAR 1:030, operation of a commercial activity within a state park shall require prior written consent from the Department of Parks.

(6) Commercial harvest of mussels by any method shall be prohibited in areas where mussel species considered endangered or threatened by the office are known to occur.

Section 9. Scientific Study.

(1) A research permit application shall be submitted to the office for approval prior to the commencement of any scientific study that may affect a wild river corridor conforming to 400 KAR 2:090, Section 18(3)(a).

(2) A final report with results, including data collected in a format supplied by the office, shall be submitted at the conclusion of the research. This data may be incorporated by the office into a research clearinghouse and inventory database, which shall be in accordance with KRS 146.485 and 400 KAR 2:080, Section 6.

Section 10. Utility Right-of-way Construction.

(1) As established in KRS 146.290, the construction of a transmission line or pipeline right-of-way within any portion of a wild river corridor shall require written approval from the office prior to the initiation of any construction activities within the wild river boundaries.

(2) Authorization to construct a right-of-way shall require request by the owner of the utility or pipeline company or their engineering representatives, on a written request. The written request shall include a land use plan containing:

(a) A U.S. geological survey topographic map to scale not greater than one (1) inch equal to 500 feet, showing the precise route and dimensions of the right-of-way;

(b) The estimated dates for initiation and completion of construction and the name, address and telephone number of the person or persons in charge of the construction;

(c) A detailed description of the methods of construction and specifications, including profile sheets bearing the seal and signature of a registered professional engineer;

(d) A statement of possible alternate routes for the right-of-way and why the proposed route was selected;

(e) A detailed reclamation plan designed to return the disturbed area as nearly as possible to its former appearance and condition, including the use of native species to revegetate disturbed areas; and

(f) A detailed description of proposed methods for maintaining the right-of-way, including the brand names and methods of application of any herbicides to be used.

(3) Upon receipt of a written request, an inspection of the proposed construction site shall be made by office personnel with the property owner and applicant or their representatives, and personnel from appropriate state and federal agencies.

(4) The office shall notify the applicant as to whether or not the written request is approved or denied within sixty (60) days following receipt of the written request, and shall state the reasons for the decision.

(5) If an application is denied, the applicant may submit a revised application to adequately address the reasons for denial stated in the office's written decision.

(6) A written request shall be approved only if there is no possible alternative route for the right-of-way that would bypass or cause less impact to the wild river corridor, and the applicant agrees to restore all disturbed area within the wild river corridor as nearly as possible to its former appearance and condition, as required by KRS 146.290.

(7) Construction of a right-of-way shall comply with paragraphs (a) through (l) of this subsection.

(a) If feasible, the right-of-way shall be routed to avoid steep slopes, erodible soils, surface waters and areas with high water tables, public recreation areas, and other significant natural or cultural areas identified by the office, and shall be the minimum width necessary for construction and maintenance.

(b) Adequate measures shall be taken to control sediment and any hazardous substances, and to minimize the visual impact of the right-of-way when viewed from the wild river or other designated public use areas.

(c) Any timber cutting required shall be according to the provisions of 400 KAR 4:140, Sections 4 through 7, 9 through 14, and Section 17(10) through (21).

(d) Every effort shall be made to minimize disturbance to the streambed, stream banks and fish and wildlife habitat during construction activities, and to keep timber slash and other debris out of surface waters and the immediate floodplain.

(e) Stream crossings by equipment or vehicles in a wild river corridor shall require the use of a temporary bridge or other methods approved by the office if evidence is provided that a method is designed so as not to impede stream flow. Construction across surface waters shall occur when local fish and wildlife are not spawning or nesting.

(f) Vehicles and equipment shall be stored outside of the wild river corridor when not in use.

(g) Aerial spraying of herbicides shall not be permitted within the boundaries of a wild river. Direct application of herbicides at ground level shall be limited to brands that are nontoxic to fish and wildlife.

(h) Pipeline relief valves shall be located outside of the wild river corridors.

(i) Primary consideration shall be given to underground placement of transmission lines and pipelines. Overhead transmission lines and towers shall be in accordance with environmental guidelines required by the U.S. Department of Agriculture's Rural Utilities Service, and shall be designed so as to prevent electrocution or other injury to wildlife.

(j) Reclamation shall consist of establishing a permanent vegetative cover on all disturbed surfaces, planting native trees or shrubs where necessary to establish a buffer zone along the banks of the wild river, implementing measures to prevent access by off-road vehicles, and removing all evidence of construction activities.

(k) A performance bond, in an amount to be determined by the office in accordance with KRS 146.290 and 45A.190, shall be required for reclamation if the office determines that the proposed construction could potentially damage, degrade, or otherwise have an adverse impact on any significant feature known to occur within the wild river corridor.

(l) The applicant shall provide written notice to the office upon completion of reclamation, and office personnel shall inspect the construction site to verify compliance with all permit conditions before the bond is released.

Section 11. Road Construction.

(1) In accordance with KRS 146.290, new permanent roads shall not be constructed within a wild river corridor except as authorized by the office to enhance recreational opportunities or to protect soil, water, or other natural resources.

(2) Temporary roads shall be constructed within a wild river corridor only as necessary to effect a use authorized by a change of use permit, and shall be closed and reclaimed immediately after the permitted land use is concluded.

(3) Any construction required to improve, repair, or replace existing state or county-maintained roads or bridges shall require full environmental review by the office and other appropriate state natural resource agencies prior to any construction activity.

(4) During authorized construction activities, heavy equipment shall not be driven through or into a wild river unless every feasible precaution has been taken by the operator to prevent damage to stream-bank vegetation, protect fish and wildlife habitat, control soil erosion, and prevent stream sedimentation.

(5) If recommended by the office, design plans for improving or replacing a bridge across a wild river shall consider provisions for enhancing public access to the river for recreational uses consistent with the provisions of KRS 146.200 through 146.360.

Section 12. Agency Notification.

(1) State or local government agencies that engage in or regulate any activity within the watershed of a wild river shall notify the office prior to the initiation of any activity that could adversely affect the river, and shall provide the office an opportunity to review proposals and plans for the new activity.

(2) A change of land use on state-owned lands within a wild river corridor that does not conform with the purpose and intent of KRS 146.200 through 146.360 shall require that the state agency that owns the affected land obtain a change of use permit from the office.

Section 13. Fire Control.

(1) State fire control provisions of KRS Chapter 149 and any that may be established by cooperative agreement, shall be strictly enforced.

(2) Fire shall be controlled by methods that require the least disturbance to soils and vegetation, and use of heavy equipment shall be limited to situations where an imminent threat to life or personal property exists. Any fire hazard reduction or replanting after fire shall be coordinated with the office.

Section 14. Signs.

(1) The posting of commercial signs, advertisements, announcements, campaign slogans, or other written messages other than those related to permitted uses shall be prohibited.

(2) As otherwise allowed by law, signs may be installed by the management agency, local government, landowner, or public utility for the purpose of public safety, posting of property boundaries, or property protection, identification of river corridor boundaries and public access points or as otherwise deemed necessary for resource protection, interpretation, or regulatory purposes.

(3) Signs shall be of a design and construction conforming to the natural setting in which they are located and shall not exceed sixteen (16) square feet in size.

(4) Any person with the permission of the landowner may post informational and directional signs within a corridor as necessary to the continuance of an existing use.

Section 15. Enforcement and Hearings.

(1) If the office has reason to believe a violation of 400 KAR Chapter 4 has occurred, a notice of violation shall be issued.

(2) The provisions of KRS 224.10-420 shall apply to any office order or determination made pursuant to the provisions of 400 KAR Chapter 4.

(3) Hearings required to be conducted due to the issuance of a notice of violation issued pursuant to subsection (1) or the filing of a petition pursuant to subsection (2) of this section shall be conducted pursuant to KRS 224.10-440.

(4) Appeals may be taken from any final order of the cabinet pursuant to KRS 224.10-470.

(5) Violations of the provisions of 400 KAR Chapter 4 shall be liable to the civil penalty established in KRS 146.990(1).

(6) Orders for remedial action and recovery of penalties shall be sought pursuant to KRS 146.350.

History

RELATES TO: KRS 146.220, 146.270, 146.290, 146.310, 146.350, 224.01-110, 224.10-240, 224.10-440, 224.10-470
STATUTORY AUTHORITY: KRS 146.270, 224.01-110, 224.10-100
NECESSITY, FUNCTION, AND CONFORMITY: KRS 146.270 authorizes the secretary to promulgate administrative regulations necessary for the preservation and enhancement of wild rivers as established in KRS 146.250 and for control of recreational, educational, scientific, and other uses of these areas in a manner that shall not impair them. KRS 146.220 places emphasis on protecting the aesthetic, scenic, historical, archaeological, ecological, and scientific features of these areas. This administrative regulation establishes provisions for the administration, management and public use of wild river corridors, including criteria for delineating existing, conforming, permitted, and prohibited land uses and conditions of authorization for utility right-of-way construction. This administrative regulation shall apply to all lands and waters under state jurisdiction that are located within designated wild river boundaries as established in 400 KAR 4:100. Nothing herein shall be construed as superseding any requirements of other cabinet programs or of other state or federal agencies.
History: 16 Ky.R. 503; 1336; eff. 11-22-1989; Recodified from 401 KAR 4:125, 12-21-2017; 45 Ky.R. 1791, 2611; eff. 4-5-2019; Crt eff. 3-25-2026.

400 KAR 4:130 Wild rivers change of use permit procedures {#sec-400-kar-4-130 omnilex-key=us-ky-regs-official--title-400--400 KAR 4:130}

Section 1. Applicability. In accordance with KRS 146.290, a new land use activity on state-owned or private lands shall not be undertaken within a wild river corridor until the landowner has obtained a change of use permit from the office. This administrative regulation applies to any landowner applying for a permit to change a land use within a wild river corridor. Nothing herein shall be construed as superseding any requirements of other office programs or of other state or federal agencies.

Section 2. Permit Application.

(1) A landowner desiring to commence the select cutting of timber, a resource removal, or a new agricultural use on his or her property located within a wild river corridor shall apply to the office for a change of use permit on The Wild Rivers Change of Use Permit, KNP03.

(2) The application shall include the name, address, and telephone number of the landowner and the operator of the new land use.

(3) The application for removal of a subterranean resource shall include the names and addresses of all applicable surface owners. The applicant shall notify all applicable surface owners at the time application is made for a change of use.

(4) The application shall include a land use plan to consist of:

(a) A U.S. geological survey 7.5 minute topographic map that delineates the exact location and extent of the new use and any access roads being constructed or improved to effect the new use, in relation to all surface waters within the wild river corridor;

(b) The estimated dates of initiation and completion of the new use, if applicable;

(d) A description of the methods for conducting the new land use including, for example, any construction, excavation, blasting or tree cutting activities;

(e) A description of best management practices for controlling soil erosion and stream sedimentation; maintaining existing water quality; handling of wastes, hazardous substances, and excess rock and earth; preventing and controlling spills and accidents;

(f) A list of herbicides, pesticides, and other chemical products to be used and the planned methods of application and control;

(g) A description of reasonable alternate locations or routes for the land use and why the proposed site was chosen; and

(h) A reclamation plan and time schedule that describes procedures for revegetating the affected land, types and locations of plant species to be used, and other measures required pursuant to 400 KAR 4:140, Section 14.

(5) The land use plan for underground mining shall include the following additional information:

(a) A second topographic map to scale not greater than one (1) inch equal to 500 feet, prepared, certified, and registered by a professional engineer in accordance with the provisions of KRS Chapter 322, which shall delineate control of all surface and groundwater drainage on the site;

(b) Specific provisions for preventing water from entering the mine and for preventing discharges from the mine during and after the mining activity;

(c) A preblasting report, signed by a professional engineer, of the potential for damage from blasting to stream hydrology, including groundwater and subsurface drainage effects, historic structures, significant geologic formations, or other significant features located within a wild river corridor;

(d) A dust control plan for the mining area;

(e) Evidence that the operation shall not produce or discharge acid water or acid-forming materials; and

(f) A copy of the subsidence control plan.

(6) The land use plan for oil and gas production shall include a spill prevention and control countermeasure plan to prevent and control accidental discharges of hazardous substances into surface and groundwaters.

(7) The land use plan for select cutting of timber shall contain the following additional information:

(a) A logging plan or other description of the planned cutting method and procedures for transporting logs and disposing of slash;

(b) The precise location and size of the log landing area or areas and the routing of haul roads;

(c) A timber marking report conducted and signed by a professional forester, indicating species composition, number of trees of each species, total volume, and average volume per tree for each species, number of cull trees, and a description of the method used to mark the trees; and

(d) A forest management plan developed by a professional forester may be submitted as part of the land use plan to waive the requirement of 400 KAR 4:140, Section 17(5), if it employs the selective method of cutting trees and is otherwise compatible with the purpose and intent of KRS 146.200 through 146.360.

(8) The land use plan for an agricultural use involving livestock or poultry production shall describe a system for storing and disposing of animal wastes and for excluding livestock from buffer zones.

(9) The land use plan for the construction and operation of a public access facility, boat dock, ramp, or other recreational facility shall include the following additional information:

(a) Design plans, signed by a registered engineer, showing the layout of all planned facilities, including roads, parking areas, trails, and buildings;

(b) Evidence that any structures that would extend into the water will not substantially impede natural stream flow;

(c) A list of all permits applied for to conduct the new land use as required pursuant to KRS Chapter 151 and other applicable state and federal laws; and

(d) A waste control and disposal plan, if applicable.

Section 3. Inspection. Within thirty (30) days following receipt of a completed permit application, office personnel shall conduct an inspection of the site of the proposed land use change to identify and map the occurrences of significant features and other sensitive areas that could require special protective measures.

Section 4. Public Hearing.

(1) Within sixty (60) days following receipt of a completed permit application, the office, in accordance with KRS 146.290, shall hold a public hearing on the application and shall notify the applicant of same by certified mail, return receipt requested.

(2) Public notice of the hearing shall be given according to the provisions of KRS Chapter 424 and shall state the nature and location of the proposed change of use.

(3) At the hearing, any interested party may attend and be represented by counsel and shall be allowed to present evidence as to whether or not the proposed change of use is consistent with the wild river management plan, the purpose and intent of the Kentucky Wild Rivers Act, and other applicable law. The hearing need not conform to the strict rules of evidence as practiced in the courts of the Commonwealth and shall be conducted so as to permit the full development of all relevant issues and to insure that all persons have a fair and reasonable opportunity to be heard.

(4) The hearing shall be recorded, and the application, comments received from the public, and recommendations from government agencies shall be entered into the record. The cost of transcription of the record shall be borne by any party requesting a transcript.

Section 5. Permit Application Review.

(1) The office shall evaluate all matters on record in light of the provisions of KRS 146.290, and shall further consider:

(a) The possible effects of the proposed new use on water quality, adjacent lands, aesthetics, fish and wildlife, vegetation, geologic features, historical and archaeological sites, recreational values, and endangered and threatened species;

(b) Alternate uses to which the land could be put that would be more consistent with the purposes and intent of KRS 146.200 through KRS 146.360;

(c) Alternate locations, including any outside of the wild river corridor that may be more appropriate for the proposed land use;

(d) The extent to which the proposed change of use or an alternate use conforms to the river management plan developed pursuant to KRS 146.270;

(e) If the denial or the issuance of a permit is consistent with the office's mandate to protect the waters of the Commonwealth for the use, welfare, and enjoyment of all of its citizens, and with the rights of landowners to the beneficial use of their property;

(f) Any existing laws or administrative regulations that apply generally to the proposed change of use;

(g) If the proposed change of use constitutes a threat, directly or indirectly, to public health or safety; and

(h) Secondary effects likely to be caused or encouraged by the proposed change of use, such as off-road vehicle use, excessive noise, soil erosion, air or water pollution, and economic factors relating to costs of additional facilities or resource protection measures that could be required in the general area in the future as a result, directly or indirectly, of the proposed change of use.

(2) In accordance with KRS 146.290, a written order shall be issued by the office within sixty (60) days following the public hearing.

(a) The order shall consist of a permit with appropriate standards attached in accordance with 400 KAR 4:140 if the application is approved, specify objections to the application and procedures for appeal if the permit is denied, or recommend an alternate use consistent with the Kentucky Wild Rivers Act.

(b) The order shall set forth the finding of fact and conclusion supporting the ruling.

Section 6. Permit Conditions.

(1) A permit to conduct a change of use shall contain site-specific restrictions, terms, and conditions as appropriate to protect to the fullest extent possible the wild river area and the public trust therein, within the intent of KRS 146.220.

(2) A permit shall become effective on the date of issuance and shall remain in effect for one (1) year, at which time the permittee shall notify the office in writing as to the status of the new land use. The permit may be renewed annually upon request by the permittee if the new use has remained consistent with the land use plan submitted and has complied with all permit conditions, the provisions of 400 KAR Chapter 4, and other applicable laws and administrative regulations.

(3) The landowner to whom a change of use permit is issued shall be held fully accountable for compliance with 400 KAR Chapter 4 and any additional terms and conditions imposed by the permit.

(4) The permit application and land use plan submitted shall be an instrument for adjudging compliance with the permit. Any changes in the application or land use plan shall require amendment of the permit before changes are implemented. A permit may be revoked or restricted in the event that the application submitted is found to contain falsified or erroneous information or if conditions of the permit or any of the provisions of 400 KAR Chapter 4 are violated. Violations shall be subject to penalty as established in KRS 146.990.

(5) A change of use permit shall apply to the property for which it was granted and shall be transferable to any future owner of the property or interest in the property. While the permit is in effect, the permittee shall notify the office of any sale, lease, or other transfer of interest in the property to which the change of use applies and shall make acknowledgment of the permit a condition of the sale, lease, or other transfer of interest in the property.

Section 7. Appeal of Office's Determination.

(1) The landowner may file a written objection to the final determination on or before thirty (30) days of the date of its issuance. The written objection shall set forth the basis of the objection and be filed with the Docket Coordinator of the Cabinet's Office of Administrative Hearings.

(2) After filing of the written objection, an authorized agent of the office shall meet with the landowner and attempt to reach an agreement with respect to a modification of the ruling.

(3) If no agreement is reached within sixty (60) days of filing of the written objection, the office shall proceed pursuant to KRS 146.290.

Section 8. Incorporation by Reference.

(1) "The Wild Rivers Change of Use Permit, KNP03, July 2018, is incorporated by reference.

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Office of Kentucky Nature Preserves, 300 Sower Boulevard, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m.

History

RELATES TO: KRS 146.220, 146.270, 146.290, 146.990
STATUTORY AUTHORITY: KRS 146.270, 224.01-110, 224.10-100
NECESSITY, FUNCTION, AND CONFORMITY: KRS 146.270 authorizes the secretary to promulgate administrative regulations necessary for the preservation and enhancement of wild rivers as established in KRS 146.250 and for control of recreational, educational, scientific, and other uses of these areas in a manner that shall not impair them. Under the provisions of KRS 146.290, the select cutting of timber, a resource removal, or an agricultural use may be allowed pursuant to administrative regulations promulgated by the secretary upon the granting of a permit under the other provisions of KRS 146.200 through 146.360. Uses that exist at the time the boundaries of a wild river are designated are exempt from this provision. KRS 146.290 requires that any permit granted to conduct a change of use shall contain restrictions, terms, and conditions as appropriate to protect to the fullest extent possible the stream area and the public trust therein, within the intent of KRS 146.220. This administrative regulation establishes the procedure by which a landowner, as defined by 401 KAR 4:110, may apply to the secretary for a change of use permit to conduct a new land use within a wild river corridor.
History: 15 Ky.R. 703; 998; eff. 10-26-1988; Recodified from 401 KAR 4:130, 12-21-2017; 45 Ky.R. 1796, 2615; eff. 4-5-2019; Crt eff. 3-25-2026.

400 KAR 4:140 Wild rivers change of use permit standards {#sec-400-kar-4-140 omnilex-key=us-ky-regs-official--title-400--400 KAR 4:140}

Section 1. Applicability. This administrative regulation applies to new land uses, as defined by 400 KAR 4:110, within designated boundaries of a wild river corridor that require a change of use permit from the office. Nothing herein shall be construed as superseding any requirements of other office programs or of other state or federal agencies.

Section 2. Buffer Zones.

(1) Other than as necessary to provide river access sites authorized by the office, a change of land use shall be located outside of buffer zones.

(2) If the adjacent slope is less than forty (40) percent the minimum width of a buffer zone bordering streams and other surface waters shall be 100 feet as measured laterally from the bank of the stream or other surface water. If the adjacent slope is forty (40) degrees or greater, the buffer zone width shall vary as established in the Table in this subsection.

(3) The boundaries of a buffer zone shall be flagged by the permittee with durable, brightly-colored material prior to the commencement of a permitted change of use.

Section 3. Extent of Disturbance. A new land use shall occupy the minimum area necessary to accomplish the intended use as specified in an approved land use plan.

Section 4. Water Quality.

(1) In accordance with the nondegradation provision for outstanding resource waters established in 400 KAR 5:029(2)(4), background water quality of surface waters within a wild river corridor shall be maintained or enhanced.

(2) Any new discharge of a substance or combination of substances into a surface water within a wild river corridor shall maintain or enhance background water quality in the receiving stream.

(3) Water quality data to include assessment of the presence of aquatic species and habitat quality, shall be collected as necessary to document maintenance of background water quality.

(4) The natural flow of water in wild rivers shall be maintained. Water withdrawals shall require a permit as established in 400 KAR 4:010 and KRS 151.140, and shall not be allowed to impair existing recreational or fish and wildlife uses of the river, nor adversely impact endangered or threatened species.

Section 5. Erosion Control.

(1) Best management practices shall be implemented as necessary to control soil erosion and sediment if there is ground surface disturbance. Sediment shall not be allowed to accumulate in surface waters.

(2) Temporary erosion control measures shall be immediately implemented on all disturbed areas not needed for ongoing operation until permanent control measures can be established, and shall minimally include use of one (1) or more of the erosion control measures established in paragraphs (a) through (c) of this subsection.

(a) All disturbed surfaces shall be graded, seeded, fertilized, and mulched to establish complete vegetative ground cover. Native species of grasses and legumes shall be used if conditions allow.

(b) Sediment ponds and filters, such as baled vegetation, shall be used as necessary to trap sediment within disturbed areas. Filter fences may be used in situations in which other methods might not provide adequate control.

(c) On slopes of ten (10) percent or more, diversion structures shall be installed uphill of disturbed areas as needed to divert surface run-off into vegetated areas.

(3) Vehicular traffic shall be restricted to the access roads and skid trails approved in the land use plan.

(4) Activities involving the use of heavy equipment shall be suspended during wet soil conditions, and heavy equipment shall be stored outside the corridor when not in use.

(5) During construction activities, storage and disposal of unconsolidated materials shall occur only at locations approved in the land use plan, and topsoil removed from the operation site shall be stockpiled and stabilized for use during reclamation.

(6) Intermittent streams that are tributaries of a wild river may be temporarily impounded or otherwise altered to effect a permitted use. Streambed materials shall not be moved or removed from the streambed of a permanent or intermittent stream for any purpose.

Section 6. Stream Crossings.

(1) Vehicular stream crossings shall be prohibited where stream bank slopes exceed ten (10) percent, or where the crossing might otherwise have an adverse impact on the stream environment.

(2) Natural drainages not composed substantially of rock shall be accommodated with an appropriately sized drainage relief structure, such as a culvert or temporary bridge, at the point of intersection with a road.

(a) Stream crossings shall occur only at right angles where the stream channel is most narrow and has firm, rocky banks.

(b) Relief structures for crossing a permanent stream shall minimally consist of a closed culvert designed to handle a ten (10) year, twenty-four (24) hour precipitation event, and shall be embedded in clean rock fill and covered by compacted fill to a minimum depth of one (1) foot. The bottom of culverts shall be flush with stream substrates.

(3) As required pursuant to KRS 151.250, a Division of Water permit to authorize construction in a flood plain shall be obtained from the office prior to bridge construction if the area of the watershed is one (1) square mile or greater.

Section 7. Access Roads.

(1) Existing roads shall be used if possible to minimize surface disturbance.

(2) Best management practices for road construction, incorporated by reference in the U.S. Army Corps of Engineers Nationwide Permit for Linear Transportation, shall be employed to the greatest extent possible during road construction and maintenance.

(3) Roads shall be routed to follow the existing land contour as closely as possible and to avoid surface waters, flood plains, and any areas vital to the preservation of significant features. Except for necessary stream crossings or provision of public access to the river, no portion of any road shall be located in a buffer zone or streambed.

(4) Roads shall not exceed a maximum grade of ten (10) percent for distances of more than 150 feet. Portions of roads on grades steeper than ten (10) percent shall be graded and surfaced with stable materials such as limestone rock, crushed gravel, or other material approved in the land use plan, and shall be sufficiently durable for the anticipated volume of traffic and the size, weight, and speed of vehicles to be used. Acid or toxin-forming substances shall not be used for road surfacing.

(5) The width of a road shall be appropriate for the anticipated volume of traffic and the size, weight, and speed of vehicles to be used and shall not exceed sixteen (16) feet for single-lane traffic.

(6) Vegetation shall not be cleared from an area greater than the width necessary for road and associated ditch construction. Road shoulders shall be seeded in grass cover immediately after construction is completed, and ditches shall be lined with gravel.

(7) Roads constructed to effect a permitted use shall be closed by means of a locked gate located at or near the corridor boundary when adverse weather or other conditions cause operation and maintenance of the permitted use to be suspended for an extended period of time.

Section 8. Structures.

(1) Structures permitted by the management agency shall be located either:

(a) Beyond the limit of the 100-year flood plain as determined by the office; or

(b) No closer than 250 feet from the nearer bank of the wild river.

(2) Structures shall be screened by vegetation or topographic features so as not to be visible from the nearer bank of the wild river.

(3) Any new dock, boat ramp, or other river access facility shall be constructed so as to minimize its intrusion into the river, if any, and shall not substantially impede natural stream flow.

(4) Best management practices for construction shall be used as necessary to control erosion and prevent sedimentation of surface waters.

Section 9. Control of Hazardous Substances.

(1) To the extent not inconsistent with any other applicable law, any hazardous substance used for or resulting from a new land use shall be confined to the smallest practicable area, shall be stored so as to prevent escape as a result of rain, percolation, high water, or other cause, and shall be properly and legally disposed of outside of the wild river corridor.

(2) The operator shall immediately notify the office of any accident involving fire, personal injury, discharge, or accidental bypass of any hazardous substance within a wild river corridor, and shall submit to the office a written report containing details of the accident to include a map of the area impacted and a description of the people, property, and substances involved within forty-eight (48) hours of an accident event.

Section 10. Solid Waste Disposal. Scrap and waste materials used to effect a new land use shall be removed and properly disposed of, in accordance with local solid waste ordinances and 401 KAR Chapters 47 through 49, outside of the corridor immediately after their use is concluded.

Section 11. Visibility. Buildings, facilities, and other structures shall be made as inconspicuous as possible by painting or staining in muted tones or by screening with native vegetation. Electric lines shall not be strung across a wild river unless no other option is available, and shall be hidden to the extent possible.

Section 12. Cutting of Vegetation.

(1) Any tree cutting required for a new land use, other than the permitted select cutting of timber or a new agricultural use, shall be limited to trees that interfere with the construction or operation of the permitted use, as approved in the land use plan.

(2) Burning of forest vegetation shall be prohibited unless authorized by the Division of Forestry, or the U.S. Forest Service on federal lands, for purposes of disease control or as part of a prescribed burn and shall conform with other applicable provisions of law.

(3) Every effort shall be made to avoid unnecessary removal or trampling of vegetation within a corridor.

Section 13. Operation and Maintenance. All operation and erosion control structures and facilities shall be routinely inspected and maintained by the operator to ensure proper functioning and to prevent the accumulation or accidental discharge of hazardous substances or waste materials.

Section 14. Reclamation.

(1) The permittee shall provide written notification to the office immediately upon the conclusion of a new land use and shall begin implementing reclamation measures within thirty (30) days following notifications.

(2) Reclamation shall involve restoration of all disturbed area to its predisturbance appearance and condition or an improved condition that shall enhance natural and aesthetic values.

(3) Reclamation shall be completed within ninety (90) days following conclusion of the new use unless an exception is approved by the office, including a written request based on conditions beyond the applicant's control before the ninety (90) day period ends.

(4) All facilities and structures installed for the new use, including temporary erosion control and drainage structures, shall be removed from the corridor, and the natural contours and drainage patterns shall be restored. Culverts and other relief structures may remain if approved by the office to protect the natural and aesthetic values of an area.

(5) Unless otherwise approved in the land use plan, roads constructed for the permitted use shall be reclaimed by effectively blocking the road entrance to vehicular use, removing water control devices, restoring the ground surface to its natural contours, and seeding, fertilizing, and mulching the roadbed. Native species of plants approved in the land use plan shall be used if conditions allow, and those having wildlife value shall be preferred.

(6) Tree species that existed on the site prior to the land use change shall be planted on all areas cleared of trees during the land use change.

(7) Reclamation shall be considered complete if an inspection by office personnel determines that the affected site resembles, as closely as possible, the condition and appearance of the land and vegetation that existed prior to the land use change.

(8) Failure of the operator to comply with these standards shall be cause for the denial of any future permit to conduct a change of use on land within a wild river corridor involving the operator.

Section 15. Additional Standards Specific to Exploration For and Extraction Of Oil and Gas.

(1) A spill prevention and control countermeasure (SPCC) plan shall be prepared in accordance with 40 C.F.R. Part 112 and implemented before drilling begins. The SPCC plan shall contain a contingency plan for reporting and controlling accidental discharges according to 400 KAR 5:015.

(2) The area of disturbance at each well shall not exceed sixty (60) feet by 100 feet unless otherwise approved in the land use plan.

(3) Prior to drilling, an area forty (40) feet in diameter centered around each well shall be isolated by an earthen dike twelve (12) inches or more in height, and the enclosed ground surface shall be lined with three (3) inches or more of sorbent material.

(4) Acids and other well drilling and cleaning fluids shall be handled in accordance with Section 9 of this administrative regulation.

(5) Blowout prevention equipment shall be installed on wells during drilling.

(6) The permittee shall provide written notification to the office of the planned dates for drilling to provide an opportunity for office personnel to be present on-site during drilling activities.

(7) For air rotary or other dry methods of drilling, dust and other particulate matter blown from the well shall be directed away from surface waters and stockpiled in a manner that shall prevent its entry into surface waters as a result of rain, percolation, wind, or other cause. Dust may be controlled by injecting water into the air stream at a rate of approximately three (3) gallons per minute. Water and other fluids used in the drilling process shall not be discharged into surface waters.

(8) If drilling or production is suspended for twenty-four (24) hours or longer, all valves and blowout prevention equipment shall be closed.

(9) Storage or loadout tanks shall be equipped with an oil brine separator and a safety valve to prevent accidental overflow of oil, and all valves and other fluid controls shall be kept locked or be removed when the operator is off-site to prevent accidents due to vandalism.

(10) Produced water shall not be discharged into surface or groundwaters within a wild river corridor.

(11) Storage of produced water within a wild river corridor shall be in a closed tank having a minimum thirty (30) day storage capacity to prevent accidental discharge. Fluids shall be safely removed from the tank when the tank becomes filled to no more than two-thirds (2/3) capacity and be properly disposed of in accordance with 401 KAR 5:090.

(12) Pits constructed to temporarily hold brine or other fluids produced during drilling shall be located beyond flood plains and other areas prone to flooding, and be constructed according to 401 KAR 5:090, Section 9(5)(a).

(13) Disposal of produced water shall be by reinjection into a disposal well in accordance with 401 KAR 5:090, Section 11, and require an underground injection control permit as provided for in 40 C.F.R. 146, or shall be transported outside of the corridor and reinjected into an approved disposal well.

(14) Any pipelines leading from pumps to storage or loadout tanks shall be fitted within a second pipe or within an open culvert lined with nonpermeable material that shall act as a catch basin for any accidental discharge of oil or brine.

(15) Pipelines shall be placed as far away as possible from streams and other surface waters, shall follow an access road if possible, and shall not be routed across a wild river.

(16) Facilities, roads, collecting lines, and other structures shall be inspected daily by the operator when wells are producing to ensure erosion control and prevent accumulations or leaks of oil, produced water, or other hazardous substances.

(17) Spills or leaks of oil, produced water, or drilling or cleaning fluids shall be contained by the operator immediately upon discovery, be disposed of outside of the corridor in an approved manner within twenty-four (24) hours of discovery, and be reported to the office in accordance with 401 KAR 5:015 and 40 C.F.R. Part 110.

(18) The operator shall keep sorbent material, fire extinguishers, and other firefighting tools readily accessible on the site to control fire or an accidental discharge of oil or produced water.

(19) Trailers, mobile homes, or other temporary or permanent structures used to house operation personnel shall not be installed within a wild river corridor.

(20) Reclamation shall include the plugging of all wells in accordance with 805 KAR 1:060, and the plugging affidavit shall be submitted to the office.

Section 16. Additional Standards Specific to Underground Mining.

(1) Surface disturbance resulting from underground mining shall not occur within the buffer zones of streams and other surface waters within a wild river corridor.

(2) Drainage from any surface disturbance resulting from underground mining shall be controlled pursuant to 405 KAR 18:060 and 18:070.

(3) Mine surface entrances shall be located outside a wild river corridor if possible.

(4) Underground mining shall not be permitted if subsidence or landslide cannot be adequately controlled. if subsidence or surface displacement of soil, rock, or other ground material due to mining activities causes an adverse impact to the river or other surface waters within a wild river corridor, the mining operation shall be suspended until the operator has corrected the damage and provided evidence that further subsidence or landslide shall not occur.

(5) A subsidence event shall be reported to the office within twenty-four (24) hours of discovery, the surface impacts of subsidence shall be corrected, and the area restored to its previous condition before mining commences. The disturbed area shall be revegetated, using native grasses and legumes if conditions allow, and be thoroughly mulched with straw or other suitable material until a vegetative cover becomes established.

(6) In addition to the standards established in this administrative regulation, any roads constructed or improved to effect a mining use shall be in accordance with 405 KAR 18:230, and shall be constructed and maintained using best management practices for mining haul roads. Other transportation systems such as tramways, railroad loops, or spurs shall not be allowed within a wild river corridor unless access would cause less impact on the river environment than any alternative system.

(7) Underground development waste, spoil, coal, or other hazardous substances shall be transported to proper storage and disposal areas outside of the wild river corridor and shall otherwise be handled according to 405 KAR 18:130 and 405 KAR 18:190. Tipples, processing, or refuse areas shall not be located within a wild river corridor.

(8) Mine shafts shall not be routed beneath streams and other surface waters in order to avoid subsidence and physical damage to natural surface drainage patterns.

Section 17. Additional Standards Specific to the Selective Cutting of Timber.

(1) Timber cutting shall follow best management practices required pursuant to the Kentucky Forest Conservation Act, KRS 149.342-.344, and the Kentucky Agriculture Water Quality Act, KRS. 224.71-100 through 224.71-140, and related practices found in the most current revision of the Kentucky Agriculture Water Quality Plan available from the Kentucky Division of Conservation 300 Sower Boulevard, Frankfort, Kentucky 40601.

(2) A professional forester shall survey and mark all trees to be cut. A minimum residual basal area of not less than sixty (60) square feet per acre shall be left standing and evenly distributed over the harvested area.

(3) The boundaries of the area to be cut shall be clearly marked using paint.

(4) Prior to cutting, all active den trees and at least three (3) mast-producing trees per acre consisting of trees in the largest size class in the stand, shall be marked and left standing.

(5) Tree cutting shall not be repeated in the permitted area at intervals of less than twenty (20) years from the date that reclamation is completed as established in Section 14(7) of this administrative regulation, unless the landowner has submitted a timber management plan as part of the land use plan, approved by a professional forester, which recommends a shorter interval.

(6) The selective cutting of trees shall be prohibited within buffer zones except to remove diseased or insect-infested trees or those becoming uprooted due to natural causes.

(7) Construction of roads and skid trails shall occur outside of buffer zones, unless less impact would result from using an existing road in a buffer zone and be routed to follow the contours of the land.

(8) Trees used for fastening or attaching cables, guys, or other equipment shall be adequately protected from possibly injury.

(9) In hilly terrain, logs shall be skidded uphill if possible, on trails designed and maintained for this purpose using best management practices, and shall not be skidded through surface waters.

(10) The amount of surface disturbance required for construction of roads, skid trails, and log landings shall be kept to the minimum required for these purposes, and the area of a landing shall not exceed 6,000 feet unless and exception is approved in the land use plan.

(11) Log landings shall be located so as to minimize erosion and if possible be located on well-drained sites on slopes of less than ten (10) percent. If necessary, a landing shall be protected from overland flow of water by construction of a diversion ditch on the uphill side to divert water into well-vegetated areas.

(12) Timber shall be cut as close to the ground as is reasonably practicable, with the height of the stumps not to exceed twelve (12) inches above ground on the uphill side of the tree.

(13) Trees shall be cut so as to fall away from streams and other surface waters, rock houses, historic structures, and other sensitive areas identified by the office.

(14) Tree tops and other nonmarketable timber slash shall be lopped to within two (2) feet of the ground surface, or chipped and spread on disturbed areas to control erosion. Slash shall be randomly placed within a corridor.

(15) Pesticides and herbicides shall be used in accordance with the land use plan submitted as part of the permit application incorporated by reference in 400 KAR 4:130.

(16) Facilities for processing logs shall be located outside wild river corridor boundaries.

(17) Logging operations shall cease during wet soil conditions.

(18) At the conclusion of the land use change, log landings, skid trails, and haul roads shall be reclaimed according to Section 14 of this administrative regulation.

(19) A permit to conduct select cutting of timber shall not be extended more than 180 days beyond the original permit expiration date.

Section 18. Additional Standards Specific to Agriculture.

(1) A new agricultural use within a wild river corridor shall follow the Kentucky Agriculture Water Quality Act, KRS. 224.71-100 through 224.71-140, and related practices found in the most current revision of the Kentucky Agriculture Water Quality Plan available from the Kentucky Division of Conservation 300 Sower Boulevard, Frankfort, Kentucky 40601.

(2) The removal of trees to effect a new agricultural use shall be subject to all applicable provisions of Section 17 of this administrative regulation.

(3) Where little or no vegetative ground cover exists between the proposed agricultural use and a stream or wetland, native trees and ground cover shall be planted along the banks of the surface water to create buffer zones prior to the commencement of the agricultural use. Plant species shall be recommended by the office.

(4) Severely eroded, sediment-producing areas shall be properly stabilized using best management practices for critical areas prior to the commencement of a new agricultural use in an area.

(5) Conservation tillage methods shall be employed to the extent practicable on lands having slopes of ten (10) degrees or greater.

(6) A cover crop shall be planted in cultivated fields during winter and other periods when the cultivated crop does not provide adequate ground cover.

(7) Livestock shall be excluded from buffer zones by fencing or other methods.

(8) Watering areas for livestock shall be located outside of buffer zones.

(9) The number of livestock per area of pasture shall be estimated in the land use plan and shall be maintained at or below the level necessary to sustain complete ground cover.

(10) Animal wastes shall be stored and disposed of in a manner that will prevent their introduction into streams. Spreading of waste over fields as a disposal method shall be avoided during periods of heavy rainfall or frozen soil conditions.

(11) Any pond constructed to hold animal waste shall be located as far away as possible from streams and other surface waters, and be designed to hold the run-off from a twenty-five (25) year, twenty-four (24) hour storm event plus six (6) months of precipitation.

(12) A perennial cover crop shall be planted between trees in orchards and nurseries immediately after the nursery stock is planted.

(13) The use of pesticides and herbicides shall be restricted to those approved in the land use plan, and the use of a persistent, toxic substance shall not be approved if an equally effective, less toxic and less persistent product is available.

(14) Aerial spraying of chemicals shall not be allowed within a wild river corridor.

(15) The office may attach additional standards to a permit authorizing an agricultural use on highly erodible lands.

Section 19. Additional Standards for Recreation Facilities Development.

(1) Development of commercial or private recreational facilities within a wild river corridor shall be consistent with wild river management plans, and buildings and other structures shall be located outside of buffer zones if possible.

(2) Recreation facilities shall be primitive in design and appearance and constructed of natural or natural-appearing materials that blend with the surroundings.

(3) Recreation facilities shall be designed so as to require minimal ground disturbance and removal of vegetation.

History

RELATES TO: KRS 146.220, 146.270, 146.280, 146.290, 146.350, 146.990, 151.140
STATUTORY AUTHORITY: KRS 146.270, 151.125, 224.01-110, 224.10-100
NECESSITY, FUNCTION, AND CONFORMITY: KRS 146.270 authorizes the secretary to promulgate and administrative regulations as necessary for the preservation and enhancement of wild rivers as established in KRS 146.250 and for control of recreational, educational, scientific, and other uses of these areas in a manner that shall not impair them. Under the provisions of KRS 146.290, the select cutting of timber, other resource removal, or an agricultural use may be allowed pursuant to administrative regulations promulgated by the secretary upon the granting of a permit under the other provisions of KRS 146.200 through 146.360. KRS 146.290 requires that any permit granted to conduct a change of use shall contain restrictions, terms, and conditions as appropriate to protect to the fullest extent possible the stream area and the public trust therein within the intent of KRS 146.220. This administrative regulation establishes minimum performance standards for conducting a land use change in a wild river corridor as necessary to protect the scenic beauty and environmental quality.
History: 15 Ky.R. 706; 1000; eff. 10-26-1988; TAm eff. 11-25-2008; TAm eff. 7-8-2016; Recodified from 401 KAR 4:140, TAm 12-21-2017; 45 Ky.R. 1799, 2617; eff. 4-5-2019; Crt eff. 3-25-2026.

Title 400 KAR — Energy and Environment Cabinet

Chapter 1 Administration

400 KAR 1:001 Definitions for 400 KAR Chapter 1 {#sec-400-kar-1-001 omnilex-key=us-ky-regs-official--title-400--400 KAR 1:001}

400 KAR 1:040 Administrative discovery {#sec-400-kar-1-040 omnilex-key=us-ky-regs-official--title-400--400 KAR 1:040}

400 KAR 1:060 Confidentiality of records or other information furnished to or obtained by the Environmental and Public Protection Cabinet {#sec-400-kar-1-060 omnilex-key=us-ky-regs-official--title-400--400 KAR 1:060}

400 KAR 1:090 Administrative hearings practice provisions {#sec-400-kar-1-090 omnilex-key=us-ky-regs-official--title-400--400 KAR 1:090}

400 KAR 1:100 General administrative hearing practice provisions relating to matters brought under KRS Chapters 146, 149, 151, 223, 224, and 353 {#sec-400-kar-1-100 omnilex-key=us-ky-regs-official--title-400--400 KAR 1:100}

400 KAR 1:110 Administrative hearings relating to matters brought under KRS Chapter 350 or KRS 351.310 through 351.375 {#sec-400-kar-1-110 omnilex-key=us-ky-regs-official--title-400--400 KAR 1:110}

400 KAR 1:120 Administrative hearings, informal settlement conferences, and general practice provisions relating to a mineral operation {#sec-400-kar-1-120 omnilex-key=us-ky-regs-official--title-400--400 KAR 1:120}

Chapter 2 Office of Kentucky Nature Preserves

400 KAR 2:060 Definitions {#sec-400-kar-2-060 omnilex-key=us-ky-regs-official--title-400--400 KAR 2:060}

400 KAR 2:070 The Office of Kentucky Nature Preserves {#sec-400-kar-2-070 omnilex-key=us-ky-regs-official--title-400--400 KAR 2:070}

400 KAR 2:080 Dedication of nature preserves and registration of natural areas {#sec-400-kar-2-080 omnilex-key=us-ky-regs-official--title-400--400 KAR 2:080}

400 KAR 2:090 Management, use, and protection of nature preserves and natural areas {#sec-400-kar-2-090 omnilex-key=us-ky-regs-official--title-400--400 KAR 2:090}

400 KAR 2:100 Hearings and appeals {#sec-400-kar-2-100 omnilex-key=us-ky-regs-official--title-400--400 KAR 2:100}

Chapter 3 Rare Plant Recognition

400 KAR 3:010 Definitions for 400 KAR Chapter 3 {#sec-400-kar-3-010 omnilex-key=us-ky-regs-official--title-400--400 KAR 3:010}

400 KAR 3:020 Criteria for identifying and designating endangered or threatened species of plants {#sec-400-kar-3-020 omnilex-key=us-ky-regs-official--title-400--400 KAR 3:020}

400 KAR 3:030 Procedures for inclusion, removal, or change of status of plant species on the state endangered or threatened list {#sec-400-kar-3-030 omnilex-key=us-ky-regs-official--title-400--400 KAR 3:030}

400 KAR 3:040 Endangered or threatened plant lists {#sec-400-kar-3-040 omnilex-key=us-ky-regs-official--title-400--400 KAR 3:040}

Chapter 4 Wild Rivers

400 KAR 4:100 Wild rivers boundaries {#sec-400-kar-4-100 omnilex-key=us-ky-regs-official--title-400--400 KAR 4:100}

400 KAR 4:110 Definitions for 400 KAR Chapter 4 {#sec-400-kar-4-110 omnilex-key=us-ky-regs-official--title-400--400 KAR 4:110}

400 KAR 4:125 Wild rivers administration {#sec-400-kar-4-125 omnilex-key=us-ky-regs-official--title-400--400 KAR 4:125}

400 KAR 4:130 Wild rivers change of use permit procedures {#sec-400-kar-4-130 omnilex-key=us-ky-regs-official--title-400--400 KAR 4:130}

400 KAR 4:140 Wild rivers change of use permit standards {#sec-400-kar-4-140 omnilex-key=us-ky-regs-official--title-400--400 KAR 4:140}

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