Regulatory Law: COOK V. ENVIRONMENTAL AND PROTECTION CABINET (COA 11/3/2006)

COOK V. ENVIRONMENTAL AND PROTECTION CABINET
REGULATORY LAW:  Mining permits

2005-CA-000705
PUBLISHED; AFFIRMING (VANMETER)
DATE RENDERED: 11/3/2006

This appeal follows the circuit court’s order affirming the Natural Resources and Environmental Protection Cabinet Secretary’s order suspending Nugent Sand Company’s mining permit and amended permit for failing to adequately address several statutory and regulatory requirements in its applications.

The Cabinet had issued a non-coal mining permit to Nugent and thereafter issued an amended permit. The permits were challenged by Cook and Cooper, who live near the area and a three-day formal hearing was conducted.  The hearing officer issued a report and recommended order concluding that the Cabinet’s decisions to issue the permit and amendment were based on applications which were incomplete and failed to adequately address a number of regulatory and statutory requirements.

The Cabinet issued the permits incorrectly because Nugent failed to comply with the applicable regulations. Second, contrary to appellants’ assertion,  KRS 350.050(6) is not ambiguous.

It clearlarly states that the Cabinet may suspend any permit. The words “through personnel of the cabinet” simply indicate suspending permits the Cabinet need not act solely through secretary but may act through other Cabinet personnel.

The secretary of the cabinet’s decision was not arbitary and once it  found that Nugent’s permits were “issued in violation of applicable statutory and regulatory criteria,” it was his choice whether to suspend or revoke the permits. 405 KAR 5:095, § 1(11)(b)4.

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