KRS 149.344: Use of appropriate best management practices -- Violation --

Noncompliance -- Administrative regulations governing bad actor designation

-- Procedure after multiple violations -- Opportunity for administrative

hearing.

(1) Any logger or operator engaged in the conduct of any timber harvesting operations

shall use appropriate best management practices.

(2) No logger or operator shall conduct any timber harvesting operations in a manner

that is causing or will likely cause water pollution.

(3) If the cabine t determines that a logger or operator engaged in timber harvesting

operations has failed to use the appropriate best management practices or is causing

water pollution, the cabinet shall give the logger or operator a written warning of

the facts alleged to constitute the failure to use the best management practice or the

water pollution, and a reasonable period for abatement and compliance.

(4) If, after the time for abatement in the written warning, the cabinet determines that

the logger or operator has f ailed to implement the appropriate best management

practices or has failed to abate the water pollution, the logger or operator will be

provided an opportunity for an informal conference with the regional forester. After

the opportunity for an informal conference, if the cabinet determines that the logger

or operator has failed to implement the appropriate best management practices or

has failed to abate the water pollution, the cabinet shall issue a notice of violation

stating the best management practice that the logger or operator has failed to

implement or the facts alleged to constitute the water pollution, and order the logger

or operator to implement corrective measures within a specified period of time.

(5) If, after the issuance of a notice of viola tion, the logger or operator fails to

implement the best management practice or corrective measures, the cabinet shall

issue a special order mandating the logger or operator to immediately implement the

best management practice or the corrective measures. The cabinet may also order

the logger or operator to cease all or a portion of the timber harvesting operation

constituting the violation, and if the cabinet does so, the logger or operator shall

cease all or a portion of the timber harvesting operation, u ntil an inspection

determines that the violation has been abated. At the time the special order is

issued, the cabinet shall notify the logger or operator of the opportunity for an

administrative hearing under KRS 149.346(2), to be held within five (5) wor king

days of the receipt of a written request made by the logger or operator.

(6) If the cabinet finds that any logger or operator is conducting any timber harvesting

operations in violation of KRS 149.342(1) or in a manner that is causing or is likely

to cause water pollution that is presenting or will likely present an imminent and

substantial danger to the public health, safety, or welfare, or to the health of

animals, fish, or aquatic life, or to a public water supply, or to recreational,

commercial, ag ricultural, or industrial uses, the cabinet may issue an emergency

order directing the logger or operator to immediately cease the activity and

implement corrective measures within a reasonable time, and the logger or operator

shall immediately cease the activity and implement corrective measures. At the time

the order is issued, the cabinet shall also notify the logger or operator of the

opportunity for an administrative hearing under KRS 149.346(2) to be held within

five (5) working days of the receipt of a written request. The commencement of

proceedings by the cabinet under subsection (3), (4), (5), or (10) of this section shall

not preclude the cabinet from issuing an emergency order under this subsection.

(7) Notification under this section shall be by certified mail, return receipt requested,

sent to the last known address of the logger or operator, or by hand delivery by the

cabinet.

(8) If the logger or operator fails or refuses to cease activity or comply with and

implement the best management pract ices or corrective measures in a special order

issued under subsection (5) of this section or fails to cease activity and implement

corrective measures in an emergency order under subsection (6) of this section,

unless extended by the cabinet, the logger o r operator shall be deemed a bad actor

and shall be subject to civil penalties under KRS 149.348 after an opportunity for a

hearing under KRS 149.346. The cabinet shall have the authority to remove or

terminate bad actor designations from loggers or operat ors that demonstrate

adherence to implementing best management practices, have paid all fines and

penalties imposed by the cabinet, and have completed corrective action on sites with

violations.

(9) The cabinet may promulgate administrative regulations to establish rules and

procedures to remove or terminate the bad actor designation from a logger or

operator that was previously designated a bad actor under subsection (8) of this

section.

(10) If the cabinet determines that a logger or operator engaged in t imber harvesting

operations has failed to use the appropriate best management practices in violation

of this section, and the logger or operator has been issued two (2) or more bad actor

designations under KRS 149.346, the cabinet shall immediately issue a warning

and, if the violations are not corrected after a period defined by the warning but no

longer than one (1) week, shall issue an order directing the logger or operator to

immediately cease the activity and implement corrective measures within a

reasonable time, and the logger or operator shall immediately cease the activity and

implement corrective measures. At the time the order is issued, the cabinet shall

also notify the logger or operator of the opportunity for an administrative hearing

under KRS 149.346(2) to be held within five (5) working days of the receipt of a

written request.

(11) (a) Any logger or operator who has been designated a bad actor under subsection

(8) of this section shall provide prior notice to the appropriate regional office

or offices of the division before engaging in any timber harvesting operation

regulated by the cabinet until he or she has paid all civil penalties and

performed all of the site remediation required by the cabinet.

(b) The cabinet shall promulgate administ rative regulations in accordance with

KRS Chapter 13A to set forth the form and manner of the notification

required by this subsection. The notification requirements of this subsection

shall take effect on the effective date of the administrative regulations required

by this paragraph.

(12) Beginning on January 1, 2016, if the cabinet finds that any logger or operator has

three (3) or more bad actor designations under subsection (8) o f this section, the

cabinet shall issue an emergency order directing the logger or operator to

immediately cease all timber harvesting operations in the Commonwealth. Upon

receiving the emergency order, the logger or operator shall cease all timber

harvesting operations in the Commonwealth until he or she has performed all of the

site remediation required by the cabinet and has either paid all civil penalties or

remains up to date on a payment plan for civil penalties with the cabinet. At the

time the order is issued, the cabinet shall also notify the logger or operator of the

opportunity for an administrative hearing under KRS 149.346(2) to be held within

five (5) working days of the receipt of a written request. The commencement of

proceedings by the cabinet under subsection (3), (4), (5), or (10) of this section shall

not preclude the cabinet from issuing an emergency order under this subsection. A

logger or operator who otherwise complies with the requirements of this subsection

shall not be required to r emove any of his or her bad actor designations as a

condition of being allowed to restart timber harvesting operations in the

Commonwealth.

(13) All bad actor designations issued under subsection (8) of this section, including

those issued prior to June 24 , 2015, shall be included in determining the

applicability of this section to any logger or operator.