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Changes Made to Proposed Solid Waste Regs In Response To KRC Comments *
JUDGE REJECTS MOTION TO DISMISS SUIT CHALLENGING AGREED ORDER BETWEEN DEPARTMENT OF ENERGY AND STATE CABINET ON PADUCAH PLANT *
KRC SERVES NOTICE OF INTENT TO SUE TO FORCE REIMBURSEMENT OF MINING BOND POOL FUND *
Air Pollution District Ordered To Pay $130,000 In Fines And Attorney Fees For Illegal Shutdown of Vehicle Testing Program *
Landowner Succeeds In Obtaining Groundwater Protections In Pooling Order *
The state Division of Waste Management (DWM) has made changes to proposed solid waste planning regulations in response to KRC's concerns. In May 25 comments, KRC expressed concern with a proposal to delete the requirement that public notices meet minimum informational requirements. KRC had also commented on a new proposed state regulation that requires the registration and reporting by solid waste recyclers and collectors. In response, the state DWM restored the previous content requirement detailing what must be in public notices for solid waste plan amendments; revised the proposed definition of "illegal open dump" to be consistent with the statute concerning what dumps are eligible for cleanup funds; and revised the definition of "recycler" to broaden who must file reports with the Cabinet concerning materials processed. KRC appreciates the changes made by DWM in response to our comments. KRC's comments are available on the web at www.kyrc.org. To read the DWM Statement of Consideration describing their response to public comments on the proposed regulations, click here for the PDF (Requires Adobe's Acrobat PDF viewer).
When the Department of Energy and the state Environmental and Public Protection Cabinet made a deal resolving DOE's numerous violations of environmental laws at the Paducah Gaseous Diffusion plant, local residents Ron Lamb, Vivian and Al Puckett, and local activist Mark Donham challenged those two "Agreed Orders" which allowed DOE to avoid strict application of hazardous waste laws to the legacy of mismanaged wastes present on and under the DOE plant property.
DOE asked the Court to dismiss the case, arguing that the case should have been first filed before the agency even though the Cabinet Secretary had already signed the Agreed Orders as final orders of the agency.
On July 1, Franklin Circuit Court Judge Crittenden rejected the efforts to dismiss the case, holding that exhausting administrative remedies is not necessary where to do so would be an exercise in futility. The case now moves to the merits, where Plaintiffs will challenge the Agreed Orders as unlawful departures from proper management and regulation of hazardous wastes at the facility.
Plaintiffs Lamb, Puckett and Donham are represented by KRC.
On June 28, the Kentucky Resources Council served a formal "notice of intent to sue" the Kentucky Department for Natural Resources and Environment and Public Protection Cabinet for failure to comply with federal coal mining laws.
Over the objections of KRC and the federal Office of Surface Mining, the state has transferred $3.8 million dollars from a "dedicated" fund intended to insure reclamation of mined sites and to provide small coal operators an alternative to posting individual mine reclamation bonds. The removal of the funds, used by the legislative and executive branches for general fund purposes, violated the state's obligation to secure federal approval before making changes to the approved bonding program, and "seriously jeopardizes" the ability of that pooled fund to pay reclamation obligations if the mining operations default. The funds were unlawfully transferred in June, 2003 and March, 2004, and on May 13, 2004 the federal Office of Surface Mining disapproved the transfers.
KRC has become increasingly concerned with the use of supposedly dedicated funds to meet recurring general fund shortfalls. The legislative and executive branches have an obligation to assure the collection of sufficient revenues to meet recurring general fund obligations without diversion of dedicated funds such as the bond pool, underground storage tank fund, and oil and gas plugging fund. The diversion of these dedicated funds to meet recurring general fund needs jeopardizes the environment and public health, and masks the need to overhaul the fiscal policies of the Commonwealth in order to make them structurally sound, equitable and fair.
Unless the $3.8 million in unlawfully diverted funds are restored, KRC intends to file in federal court to compel restoration of the funds. To read the Notice of Intent To Sue, click here.
In a Memorandum and Order entered on June 10, 2004, U.S. District Court Judge John Heyburn ordered, as a remedy for the Metro Louisville Air Pollution Control District's "clear violation of federal law" in ending the Louisville vehicle testing program without first receiving EPA approval, that the District pay a fine of $100,000 to the Court, to be paid to KRC for "use in its environmental projects that are consistent with the Clean Air Act and which enhance public health or the environment of this community." The Court also ordered the District to pay the attorney's fees to the Plaintiffs.
KRC had sought an order requiring the District to fund reduced transit fares for the summer of 2004, to offset the additional 4 tons of ozone-creating pollutants in the summer air each day this year because of the Abramson Administration's action in shutting down the program. While the fine recognizes the violation of law by the District and the published decision in Kentucky Resources Council v. US EPA, 304 F.Supp.920 (W.D.Ky 2004) has already had an impact on other communities and states where legislatures might have considered unlawfully shutting down vehicle testing programs without prior EPA approval, KRC is disappointed that we were unable to secure an Order resulting in reductions during this ozone season to compensate for the damage caused by unlawfully shutting down the program.
KRC will continue to press EPA to demand real, contemporaneous, surplus and enforceable reductions from the District to offset the lost emissions reductions.
The District has not yet indicated whether it intends to appeal the Court's decision.
Under Kentucky law, the state Division of Oil and gas can force a "pooling" of the oil and gas interests of a landowner with the interests of other landowners where the size or condition of lands does not allow the neighbor to find a drill site while respecting distance limits from property lines.
Equitable Production Company sought an order forcing landowner Sheryl Bolling's oil and gas interests to be pooled for oil and gas production, and she opposed the pooling due to concerns with protection of her water supply.
Over the objections of the company, the state agreed with Bolling, and issued an order directing that her well water supply be tested before and after drilling for both qualitative and yield changes, that she be given copies of all testing, and that in the case of damage to the water supply, the company replace that supply. It is believed to be the first time that the state Division of Oil and Gas has imposed environmental protection conditions on oil and gas operators in a pooling order. Ms. Bolling was represented by KRC
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