Eastern Kentucky Resources v. Fiscal Court of Magoffin County, Ky.
| Decision Date | 15 October 1997 |
| Docket Number | No. 95-6360,95-6360 |
| Parties | , 28 Envtl. L. Rep. 20,251 EASTERN KENTUCKY RESOURCES, et al., Plaintiffs-Appellants, v. The FISCAL COURT OF MAGOFFIN COUNTY, KENTUCKY, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Richard A. Getty (argued and briefed), Walker P. Mayo (briefed), Bowles, Rice, McDavid, Graff, Love & Getty, Lexington, KY, Leonard Knee (briefed), Bowles, Rice, McDavid, Graff, Love & Getty, Charleston, WV, for plaintiff-appellant Eastern Kentucky Resources.
Richard A. Getty, Walker P. Mayo, Bowels, Rice, McDavid, Graff, Love & Getty, Lexington, KY, for plaintiffs-appellants Blue Ash Development, Inc. and Royalton Resources, Inc.
William Grover Arnett, Magoffin County Attorney, Salyersville, KY, for The Fiscal Court of Magoffin County, Kentucky.
Gordon B. Long, Salyersville, KY, for defendants-appellees Charles E. Hardin, Terry Hensley, Robert Collinsworth and Kenneth Auxier.
Kathryn M. Hargraves (argued and briefed), Kathryn R. Matheny, Karen H. Rippy (briefed), Natural Resources and Environmental Protection Cabinet, Office of Legal Services, Frankfort, KY, for defendants-appellees Paul E. Patton and James E. Bickford.
James J. Grawe, Office of the Attorney General, Civil Division, Frankfort, KY, for defendant-appellee A.B. Chandler, III.
Before: KEITH, MERRITT, and COLE, Circuit Judges.
The Plaintiffs, Eastern Kentucky Resources, Blue Ash Development, Inc., and Royalton Resources, Inc., (collectively "EKR") sought a declaratory judgment and injunctive relief in this action challenging the constitutionality of Kentucky's solid waste disposal program. The Defendants are various state officials of the Commonwealth of Kentucky (collectively "the Commonwealth"). EKR appeals the order of the district court dismissing its claims and granting summary judgment to the Commonwealth. For the reasons discussed below, we AFFIRM.
In 1990, Wallace G. Wilkinson, then-Governor of Kentucky convened a special legislative session, the 1991 Extraordinary Session, on garbage. The district court found that there were many events that led to this legislative session. These included poor collection practices, which had resulted in continued open dumping, the existence of environmental hazards, concerns for the amount of garbage generated per person in the Commonwealth, the fear that the Commonwealth was running out of garbage space as a result of the rapid rate at which existing landfills were filling up, and concern with the amount of refuse imported outside of the Commonwealth's borders. At the time that the session was convened, the Commonwealth had declared an environmental state of emergency because of the deplorable effects caused by the ineffectiveness of its then-current waste disposal program. EKR, however, maintains that the Extraordinary Session was convened, almost exclusively, because of the Commonwealth's opposition to the importation of out-of-state waste.
On February 21, 1991, at the 1991 Extraordinary Session, the Kentucky General Assembly enacted Senate Bill 2 ("SB 2"). SB 2 establishes a comprehensive and integrated waste management program designed to reduce the amount of solid waste disposal facilities in the Commonwealth, and to encourage a regional approach to solid waste management. SB 2 contains sixty-three parts addressing a variety of solid waste-related subjects, including garbage reduction strategies, issuance of landfill permits, state and local solid waste planning, garbage collection, tax incentives for recycling, and public participation in local solid waste planning.
SB 2 has three primary elements. First, local planning areas are required to offer universal refuse collection as part of the Commonwealth's goal to reduce--if not eliminate--illegal dumping, and to provide Kentuckians with maximum access to collection services. It is the duty of the local planning area to dispose of garbage generated within its area. This can be done by hosting a landfill, or by marketing local garbage outside of the area. Second, the plan contains a prospective element. SB 2 mandates the implementation of various recycling programs in order to reduce the amount of refuse generated per person, as well as to stem the flow of refuse streaming into the Commonwealth's landfills. One of the bill's goals is to reduce by 25% the amount of municipal solid waste generated by Kentuckians by 1997. Third, the legislature imposed upon local governments the duty to plan ahead to assure that adequate disposal capacity exists for waste generated within the Commonwealth, and to account for all available landfill capacity in the Commonwealth.
To accomplish these tasks, local governments were instructed to collaborate and to establish local solid waste planning areas. The purpose of these planning areas are to develop and implement area-wide solid waste management plans. The plans are to include among other requirements: a description of the solid waste disposal site; the recycling and composting facilities available in the area; projections on the area's population growth and waste disposal needs for five, ten, and twenty years, respectively; specific provisions to assure that adequate capacity exists for municipal solid waste generated in the area for a ten year period; and a plan to clean up open dumps in the local planning area. The bill also included a deadline by which plans were to be submitted to the Natural Resources and Environmental Protection Cabinet ("the Cabinet"). A local planning area's failure to submit a plan authorizes the Cabinet to prepare a plan for that area or to place that area in an established planning area. If a local planning area fails to execute a plan, Kentucky agencies are not allowed to endorse any solid waste projects in that area.
The Cabinet is the official planning and management agency of the Commonwealth's solid waste program. It is the duty of the Cabinet to develop a statewide solid waste reduction and management plan. It is primarily responsible for coordinating the solid waste planning and management activities of waste management areas, and for approving waste management facilities. It is the responsibility of the Cabinet to review applications for permits to construct or substantially expand existing municipal solid waste facilities. The Cabinet reviews applications for those permits for consistency with area solid waste management plans. The Cabinet is also authorized to establish standards for the disposal of solid waste in landfills and incinerators, and to require compliance with those standards when issuing permits.
SB 2's distinctive feature is that it conditions the issuance of landfill permits on local solid waste planning rather than design standards as was customarily the practice. Before a would-be landfill developer submits an application for a new landfill or a substantial expansion of an existing landfill to the Cabinet, the governing body of the local planning area must review the request to ascertain its consistency with local solid waste management plans. SB 2 links the issuance of landfill permits to local solid waste management plans with the goal of requiring government officials, local citizens, and landfill developers to work together on waste-related issues. Once the local planning agency has reviewed the application, the applicant may then submit it to the Cabinet for its approval. The Cabinet is free to accept or reject the local planning agency's determination. However, if it disagrees with the agency's determination, it must make written and detailed findings explicating its reasoning.
Two parts of SB 2 are at issue in this case: Kentucky Revised Statute Chapter 224 subchapter 40 section 315 ("KRS 224.40-315"), and Kentucky Revised Statute Chapter 224 subchapter 43 section 345 ("KRS 224.43-345") (collectively "the challenged provisions"). KRS 224.40-315 states:
(1) No permit to construct or expand a municipal solid waste disposal facility shall be accepted for processing 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 submitted under KRS 224.43-345(1)(a) to (d) and (l) until January 1, 1993, and the entire plan after January 1, 1993. The governing body for the area shall, within sixty (60) days of receipt of a written request, make the determination after public notice and opportunity for public comment and public hearing. For applications with a notice of intent filed prior to February 26, 1991, the cabinet shall continue to process the application but no permit shall be approved until the governing body for the solid waste management area in which the facility is or will be located has made a determination in accordance with this section.
(2) No permit to construct or expand a municipal solid waste disposal facility shall be approved unless the applicant affirmatively demonstrates and the cabinet makes a written finding in the preliminary determination made pursuant to KRS 224.40-310(2) 1 that the application conforms to and is consistent with all of the following:
(a) The capacity needs identified in the area solid waste management plan;
(b) Other elements of the area solid waste management plan, for permit applications filed after approval of those elements;
(c) The statewide solid waste reduction and management plan, for permit applications filed after completion of the plan; and
(d) Applicable zoning regulations adopted pursuant to KRS Chapter 100.
(3) If the cabinet approves a permit to construct or expand a municipal solid waste management facility after the governing body for the area has...
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