Request By:
Everett C. Brown, Executive Director
Coal Operators & Associates, Inc.
315 Hopkins Building
Pikeville, Kentucky
41501
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: David K. Martin, Assistant Attorney General; By: Dale D. Brodkey, Assistant Attorney General
This opinion is in response to your letter in which you inquired about the enforcement of 405 KAR 1:060. Chapter 405, which sets out regulations covering the strip mining of coal, was promulgated by the Department For Natural Resources and Environmental Protection in 1978. 405 KAR 1:060 sets out the procedures which the Department uses for inspections and enforcement pursuant to KRS Chapter 350, Strip Mining.
Your question specifically relates to the nature of the enforcement procedures set out in Section 2 of this regulation and the relationship between the notice of violation and notice of noncompliance. You state, "The natural resources inspectors are writing non-compliances before they issue a notice [of violation], forcing the operator to attend a hearing before a hearing officer in Frankfort which at times results in penalties as much as $20,000." Your understanding is that "There should be a notice of violation issued first with time to correct. If it is not corrected, then a notice of noncompliance can be issued." It is our understanding that the Department, in fact, does proceed at times with a notice of noncompliance without first issuing a notice of violation, when more serious violations are involved.
The pertinent parts of 405 KAR 1:060, Section 2, state:
"* * *
(2) Notice of violations. If the department determines that such violations have occurred, the department shall by certified mail (return receipt requested) provide written notice to the operator that such violations have occurred and shall therein stipulate a reasonable time period for the feasible correction of such violations.
(3) Notice of noncompliance, order of suspension:
(a) If any of the requirements of KRS Chapter 350 or rules and regulations adopted pursuant thereto have not been complied with within the time limits set by the department, or by KRS Chapter 350 or regulations adopted pursuant thereto, the department shall cause a notice of noncompliance to be served upon the operator; or where found necessary, the secretary shall, after a hearing (except as provided for in KRS 224.071), order the suspension of a permit or operation.
* * *
(c) The notice of noncompliance or order of suspension shall specify in what respects the operator has failed to comply with KRS Chapter 350 or the regulations or orders of the department.
* * *"
No specific definitions have been located in either the regulations or KRS Chapter 350 for the terms "notice of violation" and "notice of noncompliance. " The term "notice of violation" does not even appear in KRS Chapter 350.
There are two major questions pertaining to the enforcement procedures in the regulations:
1. First, it must be determined whether 405 KAR 1:060, Section 2, was promulgated by the Department For Natural Resources and Environmental Protection pursuant to the authority it has been granted under KRS Chapter 350.
2. If the Department has such authority, then the relationship between the notice of violation in paragraph (2) of 405 KAR 1:060, Section 2, and the notice of noncompliance or order of suspension in paragraph (3) must be determined. Essentially, this involves an inquiry as to whether the Department must issue a notice of violation before it can serve a notice of noncompliance on an operator who has violated a provision of KRS Chapter 350 or a regulation adopted pursuant to it.
First, 405 KAR 1:060 relates to KRS 350.130 and states that it was adopted pursuant to KRS 13.082 and KRS 350.028, Powers of the Department.
KRS 350.130(1) states, in part:
"If any of the requirements of this chapter or rules or regulations adopted pursuant thereto or the orders of the department have not been complied with within the time limits set by the department or by this chapter, the department shall cause a notice of noncompliance to be served upon the operator, or where found necessary, the secretary shall after hearing (except as provided in KRS 224.071) order the suspension of a permit or operation, . . . The notice of noncompliance or order of suspension shall specify in what respects the operator has failed to comply with this chapter or the regulations or orders of the department."
The Department For Natural Resources and Environmental Protection in the regulation added the category of notice of violation to those procedures already mentioned in the statute, thereby creating another step in the Department's processes of inspection and enforcement. This raises the question of whether the Department can, by regulation, issue and enforce notices of violation if they are not specifically provided for by statute. 1
Broad delegations of power by the Legislature to administrative agencies have been upheld in Kentucky courts in recent years.
Butler v. United Cerebral Palsy of Northern Kentucky, 352 S.W.2d. 203 (Ky. 1961);
Kentucky State Board of Shcools v. Electronic Computer Programming Institute, 453 S.W.2d. 534 (Ky. 1970); See: 1 Am. Jur., Adm. Law, § 118, 126. Here, the General Assembly has delegated to the Department For Natural Resources and Environmental Protection broad discretion to administer the strip mine act, KRS Chapter 350. See: KRS 350.020. The Department has the "authority and powers" to "adopt rules and regulations pertaining to strip mining to accomplish the purposes of this chapter." KRS 350.028(1).
Moreover, the Department, like any regulatory agency or prosecutor, has considerable inherent discretion in exercising its enforcement powers, subject to restrictions such as KRS 350.250. While any violation of KRS Chapter 350 or a regulation or order of the Department pursuant thereto gives rise to a penalty under KRS 350.990, the notice of violation procedure can be viewed as an exercise of the agency's discretion not to "prosecute" when the violation is not very serious and is corrected. Looked at this way, the authority for the notice of violation provision is the Department's inherent discretion to mitigate penalties. See, generally, Davis, Administrative Law Treatise, § 4.05.
In addition to its general powers, the Department has under KRS 350.130(1), the specific authority to establish time limits for compliance with its regulations. The statute states that a notice of noncompliance shall be served if certain requirements "have not been complied with within the time limits set by the department or by this chapter." (Emphasis Added). KRS 350.130(1). This section provides for Department authority to establish time limits for compliance. The notice of violation is a mechanism chosen by the Department to accomplish this. Thus, the Department has both general and specific powers to promulgate the regulation creating the notice of violation.
Secondly, one must determine the relationship between the notice of violation and notice of noncompliance in the regulation. According to the regulation, a "notice of violation" is sent to an operator after the Department "determines that such violations have occurred." Such a notice must "stipulate a reasonable time period for the feasible correction of such violation."
The prerequisites to service of a notice of noncompliance are different. The Department may serve such a notice if "any of the requirements of KRS Chapter 350 or rules or regulations adopted pursuant thereto have not been complied with within the time limits set by the department, or by KRS Chapter 350 or regulations adopted pursuant thereto . . ." 405 KAR 1:060, Sec. 2(3). The legal issue is whether this notice is to be served subsequent to the notice of violation or whether it can be simply substituted for the notice of violation.
The notice of violation and notice of noncompliance are issued after violations have occurred. There is no provision in the regulations that any time period must pass before a notice of violation is to be served. But issuance of a notice of noncompliance requires that compliance not have taken place within time limits set by statute, regulation, or by the Department.
Many requirements in KRS Chapter 350 are in the nature of prohibitions, such as the prohibition in KRS 350.445 (1) against placing spoil on the downslope in steep slope mining. Since there is no time period given by statute for compliance with such a requirement, it would be reasonable for the Department to immediately issue a notice of noncompliance upon discovering a violation of such a requirement, rather than issuing a notice of violation and giving an opportunity to correct the violation.
Since there is considerable overlap in the conditions precedent to the issuance of a notice of violation or a notice of noncompliance, the choice of which of these enforcement tools to utilize upon discovery of a violation is largely committed to the Department's discretion.
In conclusion, the answer to your question is that the Department is authorized by statute to issue a notice of noncompliance without first issuing a notice of violation, upon discovery of a violation of KRS Chapter 350, or regulations or requirements of the Department pursuant to that chapter.
If you have any further questions concerning this matter, please feel free to contact this office.
Footnotes
Footnotes
1 The term "notice of violation" found in the regulation apparently comes from the Federal Surface Mining Control and Reclamation Act of 1977, P.L. 95-87, § 521(a)(3), (303 U.S.C. § 1271(a)(3)) and the interim federal regulations, Title 30, § 722.12, 42 FR 62701 (Dec. 13, 1977). However, the term is used by the Department For Natural Resources and Environmental Protection in a different context than that of the federal law and regulations.