KRS 350.130: Notice of noncompliance -- Revocation of permit -- Bond forfeiture --

Ineligibility for future permits -- Notice or order effective upon delivery.

(1) When any of the requirements of this chapter or administrative regulations adopted

pursuant thereto or the orders of the cabinet have not been complied with, the

cabinet shall forthwith cause a notice of noncompliance to be issued upon the

permittee, person, or operator. The cabinet shall set forth in its notice a reasonable

time period but not more than ninety (90) days for the abatement of the violation. If

any permittee, person, or operator has not abated the violation within the time

prescribed in the notice of noncompliance, the secretary or other authorized

personnel of the cabinet shall issue to th e permittee, operator, or person an order for

immediate compliance and cessation of any mining activities or operations which

are contributing to the violation. The order shall require the permittee, person, or

operator to abate the violation in the most e xpeditious manner possible. The

secretary is authorized to promulgate reasonable administrative regulations for the

implementation of this section. The notice or order shall be handed to the person in

charge of the operation and the operator or person enga ged in coal exploration

operations or sent by certified mail, return receipt requested, addressed to the

permanent address shown on the application for a permit; or by electronic mail to

the address shown on the permit application or otherwise voluntarily provided to the

cabinet by the permittee on a form prepared by the cabinet; or, if no address is

shown on the application, then by certified or electronic mail to the address known

to the cabinet. The notice of noncompliance or order for immediate complian ce and

cessation shall specify in what respects the permittee, person, or operator has failed

to comply with this chapter or the regulations or orders of the cabinet and the

remedial action required, the period of time established for abatement, and a

reasonable description of the portion of the surface coal mining and reclamation

operation to which the notice or order applies. If the permittee, person, or operator

has not reached an agreement with the cabinet or has not complied with the

requirements set f orth in the notice of noncompliance or order for immediate

compliance and cessation within time limits set therein, the permit may be revoked

or the operation terminated, after an opportunity for a hearing, by order of the

cabinet, and the performance bond , if any, shall then be forfeited to the cabinet,

provided that failure to attend a hearing shall be excused for good cause shown.

Any bonding company or financial institution providing bond to the cabinet shall

have the right to perform those measures nec essary to secure bond releases if the

bonding company or financial institution can demonstrate that it has the ability to

perform the measures and will undertake to do so within a reasonable time frame.

The bonding company, or financial institution providing the bond, may, at any stage

of the reclamation process, pay the remaining encumbered balance of the bond and

thereby discharge its obligation under the bond. Neither the surety company nor the

financial institution may employ anyone to perform the measu res who has been

barred from mining pursuant to the provisions of this chapter.

(2) When a bond is forfeited consistent with the provisions of this chapter, the cabinet

shall forfeit the entire amount of the bond for the permit area or increment.

(3) A per mittee, operator, or person whose mining permit or operation has been

revoked, suspended, or terminated or is at the time of the application in violation of

this chapter or other applicable requirements as set forth in KRS 350.085 shall not

be eligible to receive another permit or begin another operation or to have

suspended permits or operations reinstated until he shall have complied with all the

requirements of this chapter or submitted proof satisfactory to the cabinet under

KRS 350.085 that the violati on has been corrected or is in the process of being

corrected in respect to all permits issued him, provided, further, that no permittee,

operator, or person shall be eligible to receive another permit or begin another

operation who has forfeited any bond unless the land for which the bond was

forfeited has been reclaimed without cost to the state or the permittee, operator, or

person has paid such sum as the cabinet finds is adequate to reclaim the lands. The

cabinet shall not issue any permits to or allow future operations by any permittee,

operator, or person who has demonstrated a pattern of willful violations of this

chapter of such nature and duration with such resulting irreparable damage to the

environment as to indicate an intent not to comply with the provisions of this

chapter, provided that no permit shall be denied on this basis without an opportunity

for a hearing. The secretary shall promulgate regulations which implement this

section. For the purposes of this section, if a corporate permittee has demonstrated a

pattern of willful violations, then any subsequent application for a permit by that

corporation, or any person who controls or has controlled that corporation, shall be

denied.

(4) In the exercise of the secretary's enforcement powers an d authority under this

chapter, the secretary, or an authorized representative of the cabinet, after

inspection, shall immediately order the cessation of the condition or operation when

he determines that the condition or operation creates an imminent dang er to the

health or safety of the public or that the condition or operation is causing or can

reasonably be expected to cause significant imminent environmental harm in

violation of this chapter or the regulations pursuant to this chapter, or any permit

condition. For purposes of this subsection, "imminent danger to the health and

safety of the public" means the existence of any condition or practice, or any

violation of a permit or other requirement of this chapter in a surface coal mining

and reclamation operation, which condition, practice, or violation could reasonably

be expected to cause substantial physical harm to persons outside the permit area

before the condition, practice, or violation can be abated. A reasonable expectation

of death or serious i njury before abatement exists if a rational person, subjected to

the same conditions or practices giving rise to the peril, would not expose himself

or herself to the danger during the time necessary for abatement.

(5) Each provision of this section shall be interpreted and applied consistently with due

process of law.

(6) The secretary, or authorized representatives of the cabinet, shall have the power to

vacate, amend, modify, or terminate notices of noncompliance and cessation orders,

pursuant to administrative regulations promulgated by the cabinet.

(7) Service of any notice or order by electronic mail shall be effective upon delivery of

the notice or the order to the recipient's inbox by electronic mail as electronically

communicated to the cabinet by an electronic registered receipt.