FLAGET FUELS, INC. v. COMMONWEALTH OF KENTUCKY, NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION CABINET
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RENDERED:
November 5, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002534-MR
FLAGET FUELS, INC.
v.
APPELLANT
APPEAL FROM PERRY CIRCUIT COURT
HONORABLE DOUGLAS COMBS, JR., JUDGE
ACTION NO. 97-CI-00575
COMMONWEALTH OF KENTUCKY,
NATURAL RESOURCES AND
ENVIRONMENTAL PROTECTION CABINET
APPELLEE
OPINION
AFFIRMING
* * * * * * * * * *
BEFORE: GUDGEL, CHIEF JUDGE; BUCKINGHAM and KNOX, Judges.
BUCKINGHAM, JUDGE.
Flaget Fuels, Inc., appeals from a Perry
Circuit Court order which upheld the final order of the Natural
Resources and Environmental Protection Cabinet (“the Cabinet”)
that revoked Flaget’s surface mining permit and ordered Flaget to
forfeit the bond associated with the permit, abate their
violation, and complete the reclamation.
After reviewing the
record, we affirm.
On September 6, 1995, the Cabinet issued a notice of
noncompliance to Flaget for a violation of special performance
standards applicable to "steep slope" operations.
Kentucky
Revised Statute (KRS) 350.130(1); KRS 350.445; 405 KAR 20:060.
To abate the violation, the Cabinet ordered Flaget to (1) remove
trees from the mud slide area; (2) stabilize, seed, and mulch;
(3) provide temporary sediment control; and (4) revise their
permit to incorporate the off-permit area.
Subsequently, Flaget
was granted nine separate extensions of time in order to complete
the abatement measures.
On May 10, 1996, the Cabinet finally issued an imminent
danger cessation order to Flaget.
12:020.
KRS 350.130(4); 405 KAR
In response to the cessation order, Flaget submitted a
remediation plan to the Cabinet.
After the Cabinet again granted
Flaget an extension of time, it issued a second cessation order.
On May 29, 1996, the Cabinet notified Flaget that it had until
July 15, 1996, to abate the violation.
On July 15, 1996, the
Cabinet refused Flaget’s request for another extension of time
and issued its third cessation order.
Ultimately, Flaget filed an administrative petition
challenging the validity of the noncompliance and cessation
orders.
KRS 350.0301.
After an administrative hearing, the
Cabinet adopted the hearing officer’s findings of fact and
conclusions of law that upheld the noncompliance and cessation
orders.
Pursuant to KRS 350.032(2), Flaget appealed the
Cabinet’s final order to the Perry Circuit Court, which affirmed
the order.
Flaget then appealed to this court, where the
Cabinet’s order was again affirmed in Case No. 1998-CA-001106.
Meanwhile, the Cabinet initiated a bond forfeiture
proceeding against Flaget and its surety, Lincoln General
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Insurance Company.
KRS 350.130(1); 405 KAR 10:050.
At a
prehearing conference, Lincoln indicated it would pay the
remaining amount of bond and waive its right to a hearing.
In
light of Lincoln’s withdrawal, Flaget moved the hearing officer
for a continuance.
The hearing officer denied the motion, and
the hearing was held on April 14, 1997.
In her findings of fact and conclusions of law, the
hearing officer recommended that Flaget’s permit be revoked, the
bond be forfeited, and Flaget be ordered to complete reclamation.
On September 25, 1997, the Cabinet adopted the hearing officer’s
recommendations in a final order.
Flaget then appealed the
Cabinet’s order to the Perry Circuit Court, which affirmed the
Cabinet’s order on September 8, 1998.
This appeal followed.
On appeal, Flaget argues that the hearing officer
applied the incorrect rule of law regarding extensions, that she
erroneously denied the motion for continuance, and that the
Cabinet’s final order is not supported by substantial evidence.
In reviewing an action of an administrative agency, we must
determine (1) whether the action was within the agency's
statutory power, (2) whether the party affected by the order was
given his procedural due process or given the opportunity to be
heard, and (3) whether the action of the agency was supported by
substantial evidence.
Bowling v. Natural Resources & Environ-
mental Protection Cabinet, Ky. App., 891 S.W.2d 406-409 (1994).
Substantial evidence is defined as evidence which has
"sufficient probative value to induce conviction in the minds of
reasonable men."
Kentucky State Racing Comm’n v. Fuller, Ky.,
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481 S.W.2d 298, 308 (1972).
"If there is any substantial
evidence to support the action of the administrative agency, it
cannot be found to be arbitrary and will be sustained."
Bowling,
supra at 409 (citing Taylor v. Coblin, Ky., 461 S.W.2d 78, 80
(1970)).
A court reviewing the action of an agency may not
substitute its judgment for that of the fact finder.
Kentucky
Bd. of Nursing v. Ward, Ky. App., 890 S.W.2d 641, 642 (1994).
Flaget’s first argument focuses on the hearing
officer’s conclusion that Flaget had not met the criteria for the
granting of another extension of time.
According to its
regulations, the Cabinet may extend the time set for the
completion of remedial measures, but the total time, including
all extensions, shall not exceed ninety days from the date of the
issuance of the notice of noncompliance unless one of the
circumstances set forth in paragraph (b) are met.
§ 2(4)(a).
405 KAR 12:020
The pertinent notice of noncompliance was issued by
the Cabinet on September 6, 1995.
Flaget was granted numerous
time extensions until the Cabinet finally denied the request for
an extension past the deadline date of July 15, 1996.
The
hearing officer specifically found that Flaget was not entitled
to another extension of time because it had not submitted a
permit application as required by 405 KAR 12:020 § 2(4)(b)(1) and
that Flaget failed to establish extraordinary weather conditions
under 405 KAR 12:020 § 2(4)(b)(4).
Flaget contends that it could
not submit the required permit application until it secured a
legal right of entry onto the property owned by the Robertses and
that it had met the necessary requirements for an extension of
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time based on weather conditions.
Flaget’s contentions are
without merit.
Even if we assume as true the disputed fact that the
Robertses had not granted Flaget a right of entry onto their land
to perform the abatement measures, Flaget is not relieved of the
responsibility of performing such measures when reasonable
alternatives exit.
The hearing officer correctly relied on the
testimony of Clyde DeRossett, a mining engineer who testified
that the remedial measures could have been performed without
entering the Robertses’ property.
There is also substantial
evidence from DeRossett and Lisa Baker, an environmental
inspector, to support the hearing officer’s determination that
Flaget was not entitled to another extension of time due to
weather conditions. Fuller, 481 S.W.2d at 308 (the trier of facts
is afforded great latitude in its evaluation of the evidence
heard and the credibility of witnesses appearing before it.)
Flaget next contends that the officer’s refusal to
grant a continuance denied it due process.
After reviewing the
record, it is apparent to this court that the hearing officer did
not abuse her discretion in denying the motion.
Contrary to
Flaget’s contention, Lincoln’s withdrawal did not materially
change the issues at the hearing.
Flaget had ample opportunity
to discover any relevant evidence possessed by Lincoln--its own
surety--and to subpoena the appropriate witnesses to appear at
the hearing.
Furthermore, the hearing officer invited Flaget to
move to allow the record to remain open to receive additional
proof if Flaget made any representation at the hearing that there
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were either witnesses or exhibits to prove facts which were
unavailable due to the surety’s withdrawal from the hearing.
Finally, Flaget contends that the Cabinet’s final order
is not supported by substantial evidence.
We disagree.
Despite
the fact that it was granted numerous time extensions in which to
abate the violation, Flaget did not complete one of the remedial
measures set forth in the original notice of noncompliance.
Testimony from Lisa Baker and Clyde DeRossett supports the
Cabinet’s conclusion that Flaget’s failure to abate the violation
stems from its total lack of diligence.
Because there is
substantial evidence in the record to support the Cabinet’s final
order, this court must sustain it.
Bowling, supra.
For the reasons stated above, the order of the Perry
Circuit Court is hereby affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Donald Duff
Frankfort, Kentucky
Mary A. Stephens
Frankfort, Kentucky
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