Natural Resources and Environmental Protection Cabinet v. Kentucky Harlan Coal Co., Inc.

• Decision Date: 18 June 1993
• Docket Number: No. 92-CA-159-MR,92-CA-159-MR
• Citation: 870 S.W.2d 421
• Parties: NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION CABINET, Appellant, v. KENTUCKY HARLAN COAL CO., INC., Appellee.
• Court: Kentucky Court of Appeals

Page 421

870 S.W.2d 421

NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION CABINET, Appellant, v. KENTUCKY HARLAN COAL CO., INC., Appellee.

No. 92-CA-159-MR.

Court of Appeals of Kentucky.

June 18, 1993 Discretionary Review Denied by Supreme Court March 16, 1994.

Karen Harpenau Rippy, Frankfort, for appellant.

Rodney E. Buttermore, Jr., Marye V. Campbell, Harlan, for appellee.

Before EMBERTON, GUDGEL and HOWERTON, JJ.

GUDGEL, Judge:

This is an appeal from a judgment entered by the Harlan Circuit Court concluding that appellant Natural Resources and Environmental Protection Cabinet (cabinet) erred by assessing a regulatory penalty against appellee, the operator of a coal washing plant. The cabinet contends that the trial court erred (1) by concluding that KRS 350.090, KRS 350.028, 405 KAR 18:140, and 405 KAR 1:010(64) are unconstitutionally overbroad and violate appellee's due process guarantees, (2) by concluding that appellee was unconstitutionally deprived of its property in violation of the Fifth Amendment, (3) by concluding that the cabinet was estopped from pursuing the current enforcement action, (4) by concluding that the penalty assessed against appellee was arbitrary and not based upon substantial evidence, and (5) by taking judicial notice of certain alleged facts. We agree with all of the cabinet's contentions. Hence, we reverse and remand.

The parties stipulated the basic facts involved in this proceeding. Briefly, as a result of its coal washing procedures, appellee accumulates quantities of shale, slate, and other rock materials. Although these materials constitute coal processing waste pursuant to the definitions set out in 405 KAR 7:020, they are not environmentally hazardous in and of themselves, and they are marketable as fill materials.

In April 1981, the cabinet issued a notice of noncompliance alleging that appellee had illegally dumped waste rock materials outside of the areas authorized by its permits. The proceeding was subsequently dismissed on the ground that appellee had not violated the applicable law.

Similarly, in October 1986 a notice of noncompliance was issued after a cabinet inspector observed appellee dumping waste rock materials into a residential yard for use as fill material. On November 12, appellee again was observed dumping waste materials at the residential site. The inspector then traveled to the cabinet's regional office, where a hearing was being conducted on a petition for temporary relief from the October notice of noncompliance. The inspector tendered a cessation order to appellee's representative who, as stipulated, "said that he would prefer to wait until after a decision on the Petition for Temporary Relief was made prior to dealing with a Cessation Order. The inspector then stated that it would be mailed to him in any event." However, the cessation order was not mailed from the regional office until November 26 and was not received by appellee until December 2, 1986. Appellee then immediately commenced the required reclamation, and the violation was considered abated as of December 2.

After preliminary and formal hearings were conducted, it was recommended that appellee should be assessed a $16,900 penalty for its failure to timely remedy the cited violations. The secretary of the cabinet subsequently adopted the recommendation. On appeal, the circuit court ordered the cabinet to vacate the cessation order and to refund any penalties paid by appellee. This appeal followed.

First, appellant contends that the circuit court erred by finding that KRS 350.090, KRS 350.028, 405 KAR 18:140, and 405 KAR 1:010(64) are unconstitutionally overbroad and violate appellee's due process guarantees. We agree.

The circuit court concluded in pertinent part:

A. That 405 KAR 18:140, KAR 405:010(64)(2) (correct cite is 405 KAR 1:010(64)), KRS 350.090 and KRS 350.028 are unconstitutionally overbroad in that they regulate harmless materials by virtue of the fact that they are byproducts of coal processing.

B. That the regulation of environmentally harmless materials, simply by virtue of the fact that they are byproducts of coal processing, is not consistent with the legislative purpose of the statutes and regulations, to wit, to protect the environment of Kentucky.

These conclusions must be analyzed in light of the fact that a statute will be adjudged facially overbroad only where the overbreadth is "not only ... real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2918, 37 L.Ed.2d 830 (1973). As noted in Caretenders, Inc. v. Commonwealth, Ky., 821 S.W.2d 83, 88 (1991), "a challenge for overbreadth must fail unless the law prohibits a substantial amount of constitutionally protected conduct."

Here, appellee concedes that the circuit court erred by holding subsections (1) and (2) of KRS 350.090, as well as any portions of 405 KAR 18:140 other than Section 1(1), to be unconstitutional. Moreover, appellee concedes that KRS 350.028 should be held unconstitutional only insofar as it applies to coal processing waste. Hence, the limited question before us is whether KRS 350.090(3), 405 KAR 18:140 Section 1(1), 405 KAR 1:010(64), and KRS 350.028 are unconstitutionally overbroad insofar as they purport to regulate the use and disposal of the byproducts of appellee's coal washing plant activities.

Clearly, the government of Kentucky has accepted the right and responsibility to protect the environment and the people of Kentucky from the potentially harmful effects of surface coal mining. As stated in KRS 350.020,

unregulated surface coal mining operations cause soil erosion, damage from rolling stones and overburden, landslides, stream pollution, the accumulation of stagnant water and the seepage of contaminated water, increase the likelihood of floods, destroy the value of land for agricultural purposes, destroy aesthetic values, counteract efforts for the conservation of soil, water and other natural resources, destroy or impair the property rights of citizens, create fire hazards, and in general create hazards dangerous to life and property, so as to constitute an imminent and inordinate peril to the welfare of the Commonwealth.

In furtherance of the government's role, KRS 350.028 sets out the cabinet's authority and powers to investigate and regulate surface coal mining operations which, by definition, include the types of activities conducted at appellee's coal washing plant. See KRS 350.010(1). However, any action taken by the cabinet pursuant to KRS Chapter 350 "must stand as an environmental conservation measure." Department for Natural Resources v. Stearns Coal and Lumber Co., Ky., 563 S.W.2d 471, 473 (1978).

KRS 350.090(3) provides that:

No permittee, operator, or person shall throw, dump, pile, or permit the dumping, piling, or throwing, or otherwise placing any overburden, stones, rocks, coal, particles of coal, earth, soil, dirt, debris, trees, wood, logs, or any other materials or substances of any kind or nature beyond or outside of the area of land which is under permit and for which bond has been posted under KRS 350.060 or place these materials in such a way that normal erosion or slides brought about by natural physical causes will permit the materials to go beyond or outside of the area of land which is under permit and for which bond has been posted under KRS 350.060.

405 KAR 18:140 Section 1(1) requires that:

All coal processing waste shall be transported and placed in a manner approved by the cabinet in disposal areas approved by the cabinet for this purpose. These areas shall be within a permit area. The disposal area shall be designed, constructed, and maintained:

(a) In accordance with this regulation and the criteria set forth in 405 KAR 18:130, Sections 1 and 2; and

(b) To prevent combustion.

Finally, 405 KAR 1:010(64) defines "waste" as meaning:

earth materials, which are combustible, physically unstable, or acid-forming or toxic-forming, washed or otherwise separated from product coal and are slurried or otherwise transported from coal processing facilities or preparation plants after physical or chemical processing, cleaning, or concentrating of coal.

However, as it appears to be uncontroverted that 405 KAR 1:010(64) was not applicable to appellee's operations at the time in question as that provision now relates only to interim permits, the applicable definitions instead are those set out in 405 KAR 7:020, as follows:

(19) "Coal mine waste" means coal processing waste and underground development waste.

....

(21) "Coal processing waste" means materials which are separated from the product coal during the cleaning, concentrating, or other processing or preparation of coal.

....

(134) "Underground development waste" means waste coal, shale, claystone, siltstone, sandstone, limestone, or similar materials that are extracted from underground workings in connection with underground mining activities.

The trial court concluded that the statutes and regulations in question are unconstitutionally overbroad because they fail to distinguish between those coal mining waste products which are inherently harmful to the environment, such as combustible, toxic, acid-forming or unstable materials, and those which in and of themselves are harmless and potentially useful materials. However, as noted in KRS 350.020, concerns relating to surface coal mining and its byproducts are not limited to the effects of pollution-producing materials. Clearly, as noted in KRS 350.020, legitimate governmental concerns also exist regarding "soil erosion, damage from rolling stones and overburden, landslides," or other problems which could result from the improper storage or disposal of even those noncoal rock waste materials which otherwise are harmless and/or useful types of coal mine waste. We therefore are not persuaded that the challenged statutes and...