KRS § 353.700 — KY Code / Title XXVIII / Chapter 353 / Section 353.700
353.700 Administrative review of final determination or order of department -- Petition -- Notice -- Hearing -- Report and recommended order of hearing officer -- Final order of secretary -- Judicial review
Status: in_force

353.700 Administrative review of final determination or order of department --

Petition -- Notice -- Hearing -- Report and recommended order of hearing

officer -- Final order of secretary -- Judicial review.

(1) Any person aggrieved by any final determination made or order issued by the

department under this chapter, except any orders of the commission, may file with

the Energy and Environment Cabinet's Office of Administrative Hearings a petition

alleging that the determination is contrary to law or fact and is injurious to the

petitioner, alleging the grounds and reasons therefor, and demanding a hearing. An

order or final determination includes but is not limited to the issuance, denial,

modification, or revocation of a permit, but does not include the issuance of a letter

identifying deficiencies in an application for a permit, a registration or a

certification, or other nonfinal determinations. Unless the cabinet considers that 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.

(2) 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 final determination

or order complained of, or could reasonably have had notice.

(3) The burden of proof shall be upon the party complaining of the order or final

determination. Any party may offer into evidence all or any part of the record of the

hearing which resulted in the order, and any other relevant evidence.

(4) All hearings under this chapter, except those before the commission, 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 be

paid on a per diem basis at the discretion of the cabinet. After the conclusion of the

hearing, the hearing officer shall, within sixty (60) days, make to the secretary a

report and recommended order, which shall contain findings of fact and conclusions

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 to

the proceeding and their counsels, if any, and they shall be granted the right to file

exceptions thereto within fourteen (14) days of receipt. Any party may submit a

written response to exceptions within twenty-one (21) days of receipt of the report

and recommended order. Exceptions and responses not timely filed shall be noted

but shall not be considered by the secretary in making a final order. Within ninety

(90) days of the report or recommendation made by the hearing officer, the secretary

shall consider the report, exceptions, responses to exceptions, and recommended

order and decide the case. The decision shall be served by mail upon all parties and

their attorney of record and shall be a final order of the cabinet.

(5) The cabinet shall promulgate administrative regulations, pursuant to the provisions

set forth in this chapter and to the extent possible, consistent with those

promulgated pursuant to KRS Chapter 224, establishing formal and informal

hearing procedures by which any hearing shall, upon the written request of the

operator, permittee, or other person, be held in the Energy and Environment

Cabinet's Office of Administrative Hearings in Frankfort, before an impartial

hearing officer who is independent of any prosecutorial functions of the cabinet.

The administrative regulations shall provide for the conduct of hearings and

investigations of any matter relating to this chapter. The procedures developed

pursuant to this subsection shall provide that the hearings be held in the most

expeditious manner possible within the time constraints established under this

chapter. No person who presided at a prior hearing shall either preside at a

subsequent hearing or participate in any further decision or subsequent

administrative appeal in the same matter.

(6) Any party aggrieved by a final order of the secretary resulting from a hearing

conducted pursuant to this section may appeal to the Franklin Circuit Court within

thirty (30) days from the issuance of the final order. The party or parties affected by

the final order shall file in the Circuit Court a petition, which states fully the

grounds upon which a review is sought and shall assign all errors relied on. The

cabinet shall be named respondent, and service shall be had on the secretary.

Summons shall issue upon the petition directing the cabinet to send its entire record,

properly bound, to the clerk of the Circuit Court after certifying that the record is its

entire original record or a true copy. The record, when filed, shall become official

and be considered by the Circuit Court on the review. After the case has been

properly docketed in the Circuit Court, any party directly affected by the issues on

appeal, may, upon notice to the parties, proper showing, and in the discretion of the

court, be permitted to intervene. The court shall review the entire record and the

findings and final order of the cabinet. No objection to the final order shall be

considered by the court, unless the issue was raised before the cabinet or there were

reasonable grounds for failure to do so. The findings of the cabinet as to the facts

shall be prima facie evidence of the facts found therein. The court shall review the

entire record and the findings and final order of the cabinet.

(7) The court may stay the order until the court shall enter its decree. The court shall

have jurisdiction to enter a decree affirming or setting aside the order or remanding

the cause with directions to modify the order so that it shall conform to the

provisions of this chapter. Appeals may be taken by any party to the suit in the same

manner and to the same extent as in other civil actions.