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

Citizens Challenge 2005 Boyd County Fiscal Court Allowance of 42.9 Million Tons of Waste For Big Run Landfill  Posted: August 14, 2015

COMMONWEALTH OF KENTUCKY
BOYD CIRCUIT COURT
CIVIL ACTION NO. ____
DIVISION NO. ____

CITIZENS OF BOYD COUNTY ENVIRONMENTAL COALITION, INC. PLAINTIFF
1201 St. Christopher Drive
Ashland, Kentucky 41101

V. COMPLAINT

FISCAL COURT OF BOYD COUNTY, KENTUCKY

And

RIVER CITIES DISPOSAL, LLC


And

ENERGY AND ENVIRONMENT CABINET DEFENDANTS

* * * * *

INTRODUCTION

This action arises under Kentucky Constitution Section 2, and seeks review of an action taken by the Fiscal Court of Boyd County, Kentucky in derogation of the rights guaranteed to Citizens of Boyd County Environmental Coalition, Inc. and its members to due process in the granting of a franchise or privilege. Plaintiff seeks a determination by this honorable Court that the Boyd County Fiscal Court acted arbitrarily, within the meaning of Kentucky Constitution Section 2, in adopting Resolution 05-10, which approved submittal of an amendment to the Boyd County Solid Waste Management Plan (“2005 Amendment”) providing a total of 42.9 million tons of landfill capacity to the River Cities Disposal, LLC’s “Big Run Landfill” for a thirty (30) year period and identifying that landfill as the primary disposal location for Boyd County solid waste. Resolution 05-10 granted a “franchise” or “privilege” within the meaning of Section 164 of the Kentucky Constitution, and is void for want of compliance with the 20-year limitation and public bidding requirements mandated by that section of the state constitution. Adoption of that Resolution in violation of constitutional requirements violated the Plaintiff’s due process guarantees under Ky. Const. Section 2.

The residents of Boyd County, including the Directors and members of the Plaintiff Citizens of Boyd County Environmental Coalition, Inc., including but not limited to Sean Borst, suffer ongoing nuisance conditions and odors attendant to the operation of the landfill and a transfer station serving the landfill, and are adversely affected by the failure of the Boyd County Fiscal Court to have complied with Kentucky Constitution Section 164.

PARTIES

1. Citizens of Boyd County Environmental Coalition, Inc. (“CBCEC”) is a non-profit membership corporation incorporated under the laws of the Commonwealth of Kentucky, whose purpose is “to educate the public, advocate for public policy changes and take all actions deemed necessary or prudent to protect and improve the health and welfare and environment of the citizens of Boyd County.”

2. Among the CBCEC members directly affected by the approval of 42.9 million tons of solid waste disposal capacity to the River Cities LLC Big Run landfill is Sean Borst, who owns property located in Boyd County and who resides in Boyd County and has been subject to the frequent odors associated with the landfill and related transfer station. Mr. Borst is also a member of the Board of Directors of CBCEC as well as a member of CBCEC.

3. CBCEC has representational standing to maintain this action on behalf of Mr. Borst in order to vindicate his legally recognizable interest as a property owner in being free from malodorous conditions associated with the operation of the Big Run Landfill and associated transfer station. As a resident taxpayer, Mr. Borst has a constitutionally protected due process interest under Ky. Const. Section 2 against arbitrary government action, and has standing to bring an action challenging the failure of Boyd County to have complied with Section 164 of the Kentucky Constitution in the grant of a franchise or privilege to River Cities Disposal LLC for the Big Run Landfill. Mr. Borst, and CBCEC on his behalf, have a right to expect that any franchise or privilege granted by the Boyd County Fiscal Court be bid openly and competitively, thus assuring that he and other residents taxpayers are receiving the best value regarding solid waste management.

4. The Fiscal Court of Boyd County (“Boyd County”) is named as a Defendant since it was the Fiscal Court, acting as the “Governing Body” for the Boyd County solid waste management area under KRS 224.43-340, that approved Resolution 05-10 adopting an amendment to the Boyd County Solid Waste Management Plan “[a]dding tonnage for Big Run landfill to a total of 42.9 MM tons for a 30 year period and adding Big Run as our primary landfill[.]” Resolution 05-10, attached as Appendix A. Boyd County took that action without any bidding process.

5. River Cities Disposal, LLC is a Kentucky limited liability company with a principal office at 11220 Assett Loop, Manassas, Virginia, 20109 and an office at 1837 River Cities Drive, Ashland, Kentucky 41102. River Cities Disposal, LLC is the permittee for the Big Run Landfill, located in Boyd County, Kentucky. River Cities Disposal LLC was the beneficiary of the 2005 Amendment to the Boyd County Solid Waste Management Plan, since the addition of “authorized capacity” for the Big Run Landfill up to 42.9 million tons, enabled the landfill to expand in a manner that would otherwise not be allowed under state law.

6. The Energy and Environment Cabinet (“Cabinet”) is named as a Defendant in this action as the agency that approved an expansion to the Big Run Landfill based on the unlawful 2005 Amendment to the Boyd County Solid Waste Plan. Under KRS 224.40-315, no permit to construct or expand a municipal solid waste disposal facility, such as the Big Run Landfill, can be processed by the Cabinet unless the application “contains a determination from the governing body for the solid waste management area in which the facility is or will be located concerning the consistency of the application with the area solid waste management plan[.]” Boyd County provided the Cabinet with Resolution 06-01, finding in part that:
The Big Run Landfill Expansion Notice of Intent To Apply, which authorizes, among other things, a total capacity for the Big Run Contained Landfill of 42.9 million tons for a thirty-year (30) period and designates the Big Run Contained Landfill as the primary disposal facility for solid waste generated in Boyd County, is consistent with the Boyd County Solid Waste Management Plan.

Resolution 06-01 (July 26, 2005), attached as Appendix B.

Inasmuch as the additional tonnage granted to Big Run Landfill, the thirty (30) year duration, and the identification of the Big Run Landfill as the primary disposal site for Boyd County waste under the 2005 Amendment was granted in violation of Kentucky Constitution Section 164, both Resolution 05-10 and the subsequent Resolution 06-01 finding the Big Run Landfill Expansion to be “consistent” with the solid waste plan is void, and the permit expansion approved by the Cabinet on the basis of that local determination should be set aside.

JURISDICTION AND VENUE

7. Kentucky Constitution Section 2 provides that “[a]bsolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.” Kentucky Courts have long recognized a right of appeal of decisions of governmental entities taken in violation of this prohibition, under a standard of “arbitrariness” which protects the procedural due process of Kentuckians, including the right to government action constrained by and consistent with constitutional limitations.

8. The grant of a franchise to the Big Run Landfill for a total of 42.9 million tons of landfill capacity, and the designation of that landfill as the primary disposal site for Boyd County waste, was done without the open and competitive bidding process required by Section 164 of the Kentucky Constitution.

9. Kentucky Constitution Section 2 protects the procedural due process rights of Plaintiffs, including the right to have the Boyd County Fiscal Court act in accordance with constitutional constraints in granting any franchise or privilege.

10. The right to seek review under Kentucky Constitution Article 2 is not time-limited, inasmuch as it is among the “Bill of Rights” contained in Sections 1-26 of the Kentucky Constitution.

11. Section 26 of the Kentucky Constitution categorically protects the exercise of this right against any legislation that might impose a statute of limitation or repose, wherein it provides that “[t]o guard against transgression of the high powers which we have delegated, We Declare that everything in this Bill of Rights is excepted out of the general powers of government, and shall forever remain inviolate; and all laws contrary thereto, or contrary to this Constitution, shall be void.”

12. Venue is appropriate in this Court inasmuch as the property of CBCEC member Sean Borst is located in Boyd County, because the offices of the Boyd County Fiscal Court are within the county, and finally, because the Big Run Landfill that was beneficiary of the unlawful franchise or privilege is located in Boyd County.

COUNT I

I. RESOLUTIONS 05-10 AND RESOLUTIONS 06-01, AMENDING THE BOYD COUNTY SOLID WASTE MANAGEMENT PLAN TO GRANT THE BIG RUN LANDFILL A TOTAL OF 42.9 MILLION TONS OF APPROVED LANDFILL CAPACITY AND DESIGNATING THAT LANDFILL AS THE PRIMARY DISPOSAL SITE FOR BOYD COUNTY WASTE, VIOLATED KENTUCKY CONSTITUTION SECTIONS 2 AND 164.

13. Numerical paragraphs 1-12 are incorporated herein as if fully set out below.

14. KRS Chapters 67, 109 and 224 establish that the General Assembly has placed in the counties primary responsibility and authority for the exclusive management of solid waste.

15. KRS 224.43-340(2) requires the development of a solid waste management plan by each county or waste management district, addressing the “municipal solid waste management needs for the area.”

16. Among the requirements of a solid waste management plan is that the plan include “specific provisions to assure that adequate capacity for a ten (10) year period shall be available for municipal solid waste generated in the solid waste management area[.]” KRS 43-345(1)(l).

17. Each solid waste management plan may also identify “any additional capacity authorized for disposal of out-of-area municipal solid waste[.]”

18. Pursuant to KRS 224.40-315(1), unless an applicant for a new or expanded municipal solid waste landfill can demonstrate that the landfill capacity it seeks to permit has been provided for in the solid waste management plan for the county in which the landfill would be located or expanded, such a permit application would not be processed by the Cabinet. KRS 224.40-315(1).

19. Section 164 of the Kentucky Constitution provides in full that:
No county, city, town, taxing district or other municipality shall be authorized or permitted to grant any franchise or privilege, or make any contract in reference thereto, for a term exceeding twenty years. Before granting such franchise or privilege for a term of years, such municipality shall first, after due advertisement, receive bids therefor publicly, and award the same to the highest and best bidder; but it shall have the right to reject any or all bids. This section shall not apply to a trunk railway.

Ky. Const. Section 164.

20. A franchise, under Kentucky law, is “a right or privilege granted by a sovereign power to a party to do some act which such party could not do without a grant from the government.” Eastern Kentucky Resources v. Arnett, Ky., 934 S.W.2d 270, 275 (1996).

21. The purpose of Ky. Const. Section 164 is:

[t]o give information to anyone who has an interest in the privilege to be sold, to allow citizens of the community to protect their rights, and to enable the governmental entity to receive value for the privilege granted.

Eastern Kentucky Resources v. Arnett, Ky., 934 S.W.2d 270, 273 (1996).

22. The approval of Resolution 05-10 by Boyd County constituted a franchise or privilege within the meaning of Ky. Const. Section 164, inasmuch as it amended the Boyd County Solid Waste Management Plan to grant a total of 42.9 million tons of landfill capacity specifically to the Big Run Landfill, and made that landfill the primary disposal site for Boyd County solid waste.

23. The 2005 Amendment, including both Resolutions 05-10 and 06-01 granted Big Run Landfill a right or privilege to apply to the Energy and Environment Cabinet to expand its landfill capacity – a right or privilege not one that is enjoyed by the citizens of Boyd County in general.

24. The addition of “tonnage for Big Run Landfill to a total of 42.9 MM tons for a 30 year period” through adoption of Resolution 05-10 was not subject to competitive and open bidding.

25. The addition of “tonnage for Big Run Landfill to a total of 42.9 MM tons for a 30 year period,” through adoption of Resolution 05-10 was not limited to a maximum of twenty (20) years.

26. The “adding Big Run as our primary landfill” through Resolution 05-10 was not subject to competitive and open bidding.

27. The adoption of Resolution 05-10 approving the 2005 Amendment to the Boyd County Solid Waste Management Plan is void as a matter of law as being in conflict with Ky. Const. Section 164.

28. Resolution 06-01, which determined that an application to the Cabinet to expand landfill capacity was consistent with the Boyd County solid waste management plan due to the adoption of Resolution 05-10, is likewise void for want of compliance with Ky. Const. Section 164.

29. The failure to comply with Ky. Const. Section 164 violated the prohibition against arbitrary exercise of governmental power, and Plaintiffs are entitled to a decision declaring the action arbitrary under Ky. Const. Section 2.

30. This action is not barred by any statute of limitations, since the action seeks redress for the violation of due process rights guaranteed by Ky. Const. Section 2, including sub nom the right to government action that conforms to Ky. Const. 164.

31. To the extent that any statute enacted by the Kentucky General Assembly purports to limit the exercise of due process guarantees protected by Ky. Const. Section 2, such legislative enactment is void pursuant to Ky. Const. Section 26.

CONCLUSION AND PRAYER FOR RELIEF

WHEREFORE, for the reasons above stated, Plaintiff respectfully requests that this Court:

1. Accept jurisdiction over this complaint;

2. Determine that the Resolution 05-10 and the 2005 Amendment to the Boyd County Solid Waste Management Plan approving a total of 42.9 million tons of landfill capacity to River Cities Disposal for the Big Run landfill for a thirty (30) year period and designating that landfill as the primary disposal site for Boyd County solid waste, constituted an unconstitutional grant of a franchise or privilege and is null and void for want of compliance with Ky. Const. Sections 2 and 164;

4. Determine that in light of the unlawful Amendment to the Boyd County Solid Waste Management Plan, the determination of consistency of the proposed expansion of the Big Run landfill by River Cities Disposal contained in Resolution 06-01, should be set aside;

5. Determine and declare that the solid waste permit issued by the Cabinet approving the expansion of the Big Run Landfill should be rescinded; and

6. Grant such other relief as the Court deems necessary or proper, and to which Plaintiff may appear entitled.

Respectfully submitted

____________________________
TOM FITZGERALD
Kentucky Resources Council, Inc.
213 St. Clair Street, Suite 200
Post Office Box 1070
Frankfort, Kentucky 40602-1070
(502) 875-2428
(502) 875-2845 (fax)
KBA ID# 22370
fitzkrc@aol.com

Counsel for Plaintiff Citizens of Boyd County Environmental Coalition, Inc.


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