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Kentucky Resources Council, PO Box 1070, Frankfort, KY 40602 Phone [502] 875-2428

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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

KRC challenges agreed order between Natural Resources Cabinet and DOE  Posted: November 4, 2003

COMMONWEALTH OF KENTUCKY

FRANKIN CIRCUIT COURT

CIVIL ACTION NO. _________

DIVISION _____

RON LAMB

10970 Ogden Landing Road

Kevil, Kentucky 42053

AL and VIVIAN PUCKETT

6365 Bethel Church Road

Kevil, Kentucky 42053

and

MARK DONHAM

RR#1, Box 308

Brookport, IL 62910 PETITIONERS

V. COMPLAINT AND PETITION FOR REVIEW

NATURAL RESOURCES AND

ENVIRONMENTAL PROTECTION CABINET

5th Floor Capital Plaza Tower, Frankfort Ky. 40601

Serve: Ben Chandler, Attorney General

Office of the Attorney General

State Capitol

Frankfort, Kentucky 40601

Henry Clay List, Secretary

Natural Resources and Environmental

Protection Cabinet

5th Floor, Capital Plaza Tower

Frankfort, Kentucky 40601

And

UNITED STATES DEPARTMENT OF ENERGY

Washington, D.C. 20530

Serve: John Ashcroft, Attorney General

5111 Main Justice Building

10th and Constitution Avenue NW

Washington D.C. 20530

Spencer Abraham, Secretary

United States Department of Energy

7A 257 Forrestal Building

1000 Independence Avenue Southwest

Washington, D.C. 20585

Gregory F. Van Tatenhove

U.S. Attorney for the Eastern District KY

Suite 400, 110 W. Vine Street

Lexington, Kentucky 40507

RESPONDENTS.

* * * * * * *

INTRODUCTION

This complaint and petition for review seeks judicial review pursuant to KRS 224.10-470, of two Agreed Orders between the Natural Resources and Environmental Protection Cabinet and the U.S. Department of Energy entered as final Orders of the Secretary of the Respondent Natural Resources and Environmental Protection Cabinet (Cabinet) on October 2, 2003 and filed with the Office of Administrative Hearings on October 3, 2003.

The first Agreed Order is styled Natural Resources and Environmental Protection Cabinet vs. United States Department of Energy, DWM-32434-030, and was "entered as a final order" of the Cabinet on October 2, 2003. The Agreed Order purports to resolve alleged violations of the Respondent United States Department of Energy (DOE) with respect to the generation and storage of some 34,000 cylinders of depleted uranium hexafluoride (DUF6) at storage facilities at the Paducah Gaseous Diffusion Plant (PGDP).

The second Agreed Order is styled Natural Resources and Environmental Protection Cabinet vs. United States Department of Energy, File Nos. DWM-31

34-042 (including DWM-00062, DWM-02162 and DWM-02163) DAQ-31740-30 and DOW-26141-042 and was "entered as a final order of the Cabinet on October 2, 2003. That Agreed Order purports to resolve numerous violations, alleged violations and identified but not-yet-written violations of various waste, water and air laws and regulations of the Commonwealth of Kentucky by the DOE at its' PGDP plant uranium enrichment facility, including disposal of hazardous wastes in solid waste landfills, and other alleged failures to properly manage hazardous wastes.

Petitioners, who are individuals with property and other interests which are and may be adversely affected by the Agreed Orders, file this appeal seeking an Order vacating the Agreed Orders entered into by the Cabinet and determining and declaring that the Cabinet erred as a matter of law in entering Agreed Orders which sanction violations of state laws and regulations pertaining to hazardous and solid waste management and effectively exempt the Respondent DOE from full compliance with obligations imposed by state and federal law on all persons who generate, manage, treat, store and dispose of hazardous wastes.

GROUNDS UPON WHICH REVIEW IS SOUGHT

AND ASSIGNMENT OF ERRORS

1. This complaint and petition for review is filed pursuant to the provisions of KRS 224.10-470.

2. KRS 224.10-470 provides in relevant part that:

Appeals may be taken from all final orders of the Natural Resources and

Environmental Protection Cabinet. The appeal shall be taken to the

Franklin Circuit Court within thirty (30) days from entry 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 ground upon which a review is

sought and assign all errors relief on.

3. The Agreed Orders, which are final orders within the meaning of KRS 224.10-470, from which this appeal is taken were entered on October 2, 2003. A copy of those Agreed Orders sufficient to identify the final orders from which this appeal is taken, (but not containing the attachments, which run into scores of pages, are already in the possession of both Respondents, and which will be part of the record certified from the Cabinet) are annexed to this complaint and petition for review and are incorporated herein by reference.

4. This appeal is timely filed within the meaning of KRS 224.10-470, since it is filed within the thirty (30) day period prescribed by statute following the entry of the Agreed Orders by the Cabinet Secretary.

5. This court has jurisdiction to hear this petition for review pursuant to KRS 224.10-470. The October 2, 2003 Agreed Orders are final and appealable orders within the meaning of KRS 224.10-470.

6. Ron Lamb, whose address is 10970 Ogden Landing Road, Kevil, Kentucky 42053, is a landowner whose properly is adjacent to the PGDP facility. The Lamb property has been contaminated with what Mr. Lamb believes to be releases of hazardous substances, pollutants and contaminants that have migrated from the facility into the groundwater beneath the Lamb property.

7. Mark Donham, RR #1, Box 308, Brookport, IL, 62910, is a former member of the PGDP Citizens Advisory Board, and resides some sixteen miles downwind of the facility. He uses and enjoys the aquatic resources near the facility, and his past and future use and enjoyment has been and will be adversely affected by the releases of hazardous substances, pollutants and contaminants from the PGDP facility.

8. Al and Vivian Puckett reside at 6365 Bethel Church Road, Kevil, Kentucky 42053. They reside within a mile of the Paducah Gaseous Diffusion Plant and have had their groundwater contaminated by releases of hazardous substances, pollutants or contaminants from the PDGP. Al Puckett is a former employee of the PGDP facility.

9. Petitioners are persons with property, health, recreational, informational, aesthetic and other interests that are or may be adversely affected by the final orders from which this appeal is taken. The harm to the property and other interests of the Petitioners, including the harm caused by the violation of state hazardous waste laws and regulations sanctioned in the Agreed Orders, may adversely affect the interests of Petitioners by allowing releases of hazardous wastes or hazardous substances, pollutants or contaminants into the environment to occur without appropriate regulatory and remedial actions taken to assure protection of human health and the environment. Additionally, to the extent that the orders purport to allow hazardous wastes to remain disposed of in solid waste landfills, present or future releases from those facilities may adversely affect the property, use and enjoyment interests of Petitioners. Further, the alteration of standards and lessening of responsibility for characterization and remediation of groundwater contaminated by the PGDP facility may affect the property interests of the Petitioners Lamb and Puckett and the recreational interests of Donham. The threatened harm would be redressed by a decision vacating the Agreed Orders and remanding the cases to the Cabinet for further proceedings consistent with state hazardous waste laws and regulations.

10. The Cabinet is named Respondent and the Cabinet Secretary will be served, as directed by KRS 224.10-470.

11. The United States Department of Energy (DOE) is the owner of the Paducah Gaseous Diffusion Plant (PGDP), a uranium enrichment facility located near Paducah, Kentucky in McCracken County. The DOE was a party to the Agreed Orders that are the subject of this appeal and has been named Respondent as directed by law. DOE is registered with the United States Environmental Protection Agency as a large-quantity hazardous waste generator under EPA ID No. KY8-9890-008-982. The PGDP is a "facility" as that term is defined in Kentucky's hazardous waste statutes and regulations.

12. This Court shall set aside or vacate a final agency determination where it is shown that the final order is in violation of constitutional or statutory provisions, in excess of the statutory authority of the agency, without support of substantial evidence on the whole record, arbitrary, capricious or an abuse of discretion, or otherwise unlawful or deficient as otherwise provided by law.

13. The final Agreed Orders complained of herein, entered by the Cabinet Secretary on October 2, 2003, are arbitrary, capricious, without substantial evidence on the record taken as a whole and otherwise inconsistent with law and unreasonable, for these reasons:

A. With respect to the Agreed Order in the case of Natural Resources

And Environmental Protection Cabinet, DWM 32434-030, the final Agreed

Order:

i. fails to require that the DUF6, which is a "waste" within the meaning

of KRS 224.010(31) and is subject to the waste determination

requirement of KRS 224.46-510, be timely characterized and managed in a manner consistent with the generator and storage requirements of 401 KAR Chapters 32 39;

ii. compromises, both through the adoption of a "consultation

process" as a condition precedent to enforcement or permit-related

actions by the Cabinet where a violation is determined to exist, and

through adoption of a clause voiding all management obligations

of the DOE in the event of enforcement action, in a manner

repugnant to KRS Chapter 224 and 401 KAR Chapter 40, the permit issuance, reissuance, modification and revocation authority and the inspection and enforcement authority of the Cabinet with respect to the management of the wastes that are the subject of the Order;

iii. improperly delegates, through the "consultation process" to a regulated entity the authority to unilaterally revise terms and conditions of management of the depleted uranium hexafluoride-containing cylinders;

iv. allows a "facility" and a "person" that is subject to the state

hazardous waste laws and regulations, to reserve a defense of

financial inability to comply (Agreed Order Section 4) that is

inconsistent with state regulation;

v. adopts procedures for inspection of the waste-containing cylinders, and notification and remediation of releases of hazardous wastes, and hazardous substances, pollutant or contaminants, that are

insufficient to assure protection of public health and the environment from such releases, and which fail to satisfy the

notification requirements of state law with respect to such releases;

and

vi. otherwise delegates regulatory responsibility in a manner inconsistent with the cabinet's obligations under KRS Chapter 224, and fails to require the Respondent DOE to comply with the requirements for characterization and management of wastes under state law and regulation.

B. With respect to the Agreed Order in the case of Natural Resources and Environmental Protection Cabinet vs. United States Department of Energy, File Nos. DWM-3134-042 (including DWM-00062, DWM-02162 and DWM-02163) DAQ-31740-30 and DOW-26141-042, the final Agreed Order:

i. compromises, both through the adoption of a "consultation

process" as a condition precedent to enforcement or permit-related

actions by the Cabinet where a violation is determined to exist, and

through adoption of a clause voiding all management obligations

of the DOE in the event of enforcement action, in a manner

repugnant to KRS Chapter 224 and 401 KAR Chapter 40, the permit issuance, reissuance, modification and revocation authority and the inspection and enforcement authority of the Cabinet with respect to the management of the wastes that are the subject of the Order;

ii. improperly and unlawfully allows regulated hazardous wastes to be disposed of in a solid waste landfill and for that landfill to close as a solid waste landfill in violation of both 401 KAR Chapters 38 and 48;

iii. effects major modifications to the Federal Facility Agreement for the PGDP in violation of the public involvement requirements of Section XXXIX(C) of the Federal Facility Agreement;

iv. allows a "facility" and a "person" that is subject to the state

hazardous waste laws and regulations, to reserve a defense of

financial inability to comply that is inconsistent with state regulation;

v. which allows the facility to avoid responsibility for characterization and remediation, removal, or other compliance with KRS 224.01-400 and the corrective action requirements of the Cabinet's

hazardous waste regulations, with respect to groundwater contami-

nation by TCE and its degradation byproducts;

and

vi. which otherwise fails to require the facility to comply with the requirements for characterization and management of wastes under state law and regulation.

14. The Cabinet determination was otherwise arbitrary, capricious and inconsistent with law.

CONCLUSION AND REQUEST FOR RELIEF

Wherefore, Petitioners respectfully requests that this Court:

1. Accept jurisdiction over this appeal;

2. Determine and declare that on the basis of the evidence in the record, and proper interpretation and application of the law, that the Agreed Orders entered by the Secretary as final orders of the Cabinet on October 2, 2003 are arbitrary, capricious, unsupported by substantial evidence in the record, and contrary to law and fact;

3. Enter an order vacating the Agreed Orders and remanding the cases to the Cabinet for further proceedings not inconsistent with state hazardous and solid waste laws; and

4. For any and all other relief to which Petitioners may appear entitled.

Respectfully submitted,

__________________

Thomas J. FitzGerald

Kentucky Resources Council, Inc.

P.O. Box 1070

Frankfort, Ky. 40602

(502) 875-2428

(502) 875-2845 (fax)

fitzKRC@aol.com

Counsel for Petitioners

Certification

I hereby certify that in addition to service of the foregoing Complaint and Petition for Review in accordance with the Kentucky Rules of Civil Procedure, a true and correct copy of the Complaint and Petition for Review has been served this 3rd day of November, 2003 by first-class mail to counsel for the Respondents identified in the service list for the Agreed Orders:

Ms. Rachel Blumenfeld

Office of Chief Counsel, DOE

P.O. Box 2001

Oak Ridge, TN 37831

Ray Miskelley

GC-51/Forrestal Building

1000 Independence Avenue SW

Washington, D.C. 20565

Randall McDowell

Office of Legal Services

Fifth Floor, Capital Plaza Tower

Frankfort, KY 40601

and to

Hon. James Dickinson, Hearing Officer

Office of Administrative Hearings

35-36 Fountain Place

Frankfort, Kentucky 40601

_____________________

Tom FitzGerald



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