The Modern Regulation of Environmental Protection In Kentucky

© 2020 Ronald R. Van Stockum, Jr.

 By Ronald R. Van Stockum, Jr. (1)

045A8592 (1) 

  (Office of General Counsel, Kentucky Department of Natural Resources and Environmental Protection, ca. 1980). (2)

 

How does one begin a study of environmental history?  Even that phrase is a little bit squirrely.  Is it the human upon which we focus, or the environment wherein we are located?  Both of these things, I suppose.  Even psychic costs are included in one Kentucky environmental statute. (3)

Yet environmental law does have a history.  And the practice of environmental law in Kentucky tracked concomitant national issues.  One can ferret out that history through an examination of discrete time periods, each initiated by some identifiable environmental or political stimulus.  And each running its course through investigation and regulation, tempered by public, commercial, and political interests.

For this essay, I will focus on a 40-year period, from 1980 until 2020. (4). I refer to this period as the second great wave of modern environmental interest and regulation in the nation.  Let me say why.

Acute environmental events have always drawn our attention.  The 1948 Donora, Pennsylvania, toxic air pollution; or the 1952 “killer smog” of London.  But the more chronic health risks were not so evident.  Unknown even, in some cases.  The ancient Romans, for example, and their lead water pipe conveyances.  A problem, even today, in some public water systems. (5)

Biologist Rachel Carson ushered in a new period of environmental awareness with her condemnation of pesticides in her fourth book entitled, Silent Spring.  It was published in 1962. (6). And in that same year, Eastern Kentucky Lawyer, Harry Caudill, would publish Night Comes to the Cumberlands, his expose of the coal industry and a description of the mountain culture of Eastern Kentucky.

The first great wave of modern environmental protection came out of the cultural revolutions of the 1960s.  Anti-war, anti-racism, free speech, and renewed feminism.  And the natural world in which we live suddenly became the focus of the nation’s attention.  A slew of environmental legislation made its sudden appearance.  If we could go to the moon, then we could live in harmony within our environment.  So it was believed. (7)

It was a Republican President, Richard Nixon (President 1969-1974) that, during an unpopular war, inaugurated that first great burst of Federal environmental action by creating the U.S. Environmental Protection Agency (EPA, 1970). This was just after the 1970 passage of the Federal National Environmental Policy Act (NEPA) and the requirement for Environmental Impact Studies (EIS) in Federal projects. (8)

On December 23, 1970 President Nixon, by Executive Order, invoked the water pollution permit provisions of the Refuse Act contained in the Rivers and Harbors Act of 1899.  Then on December 31, 1970, Nixon signed the Federal Clean Air Act (CAA), which became the model for most of the “Command and Control” environmental statutes to follow. (9).  And that, they did.  The Clean Water Act of 1972 (the Federal Water Pollution Control Act or FWPCA), (10), the Endangered Species Act in 1973 (ESA), (11), the Resource Conservation and Recovery Act of 1976 (RCRA), (12), and the Toxic Substances Control Act (TSCA), also of 1976.(13).

Yet, two events would occur in the 1970’s that would change the focus of the public’s interest.  Both occurred in the faraway Middle East.

The first was the war between Israel and its neighbor states.  The 1973 Arab-Israeli War, or the Yom Kippur War as it is often called, lasted less than a month.  But one of its most significant consequences was the formation of the Organization of the Petroleum Exporting Countries (OPEC), the members of which included the majority of Arab oil-producing states in Middle East.  Their clampdown on oil production, in part as a response to the war, sent worldwide oil prices skyrocketing.  In America, concern for the long-term protection of the environment was supplanted by a much more acute interest in the rising price of a gallon of gasoline.

The second event was similar in reaction, but different in genesis.  It was the 1979 Iranian revolution that overthrew the American supported Shah and led to a year’s captivity of the American Embassy staff in Tehran.  Oil production was again curtailed, and again the price of oil rose precipitously.  I bought a diesel Volkswagen Rabbit.  These two oil crises seemingly ended that first great period of environmental activism.

In Kentucky, however, the development of a more efficient regulatory structure dealing with the environment had already begun.  It would lead to a consolidation of environmental offices into one agency, the Department of Natural Resources and Environmental Protection (DNREP).  Its current title is the Kentucky Energy and Environment Cabinet. (All of its iterations are referred to herein as the “Cabinet”).

Governor John Y. Brown, in 1979, appointed the community activist, Jackie Swigart, as the first of what would become a long line of strong leaders as Secretaries of the Cabinet.  And the Secretary’s Office, and that of her attorneys, was lodged high in the new (1972) 28-story Capitol Plaza Tower office building, itself a monument of progressive renewal and development in the Commonwealth’s capitol of Frankfort. (14).  In 2018, that edifice was demolished during Governor Matt Bevin’s Administration.  You can still watch its demise on the Internet.

The second great period of modern national environmental interest developed with a double-barreled blast of regulatory action.  That was in 1980.  The first was the publication of “Hazardous Waste” regulations required by the 1976 Federal Legislation entitled “The Resource Conservation and Recovery Act” (RCRA). (15). The second involved “Hazardous Substances,” the release of which was to be governed by “The Comprehensive Environmental Response Compensation and Liability Act” (CERCLA, 1980, also known as “Superfund”).(16).  Significantly, both laws required Federal notification of open dumps, disposal sites, and releases of hazardous waste or substances to the environment.  The media followed the reporting, and the general public became alarmed at the extent of rampant contamination.

CERCLA had been stimulated by the great media attention given sites like the “Love Canal” in New York, and the “Valley of the Drums” in Kentucky.  They both generated enormous attention across the nation.  A clamor for public protection, even greater than that of the decade before, rose up in the population.  This time, members of the public were concerned about their own health and the toxins that had been deposited in their environment.

It is this second period, now forty years after its beginning, which appears to be closing and is the genesis of this article.  The years 1980 through 2020.

And herein lies the rub.  None of the laws of these two periods of national environmental activity have been repealed.  And there has been very little substantive modification to the liability scheme in their provisions.  To a great extent, it has been the availability of enforcement funding, the exercise of enforcement discretion, and the enactment of ameliorating regulatory policies that has changed the impact of these laws.(17)

So here follows a discussion of the history of environmental protection in Kentucky between 1980 and 2020, highlighting some of the interesting people responsible for its application.

Environmental history is often catalyzed by specific issues or events.  So it was in Kentucky.  Specifically, in the 45-square-mile cliff-cloaked watershed of Kentucky’s Red River.  A tributary of the Kentucky River, it falls off of the western edge of the Eastern Kentucky Mountains, over a geologic feature geographers call the Pottsville Escarpment.  In 1962, it came out of its banks, flooding Clay City.  These were the years when dams were political tools and economic stimulus.  Kentucky has many such lakes.  And the Federal Corps of Engineers now proposed another for the Red River Gorge. (18)

Environmental activists were galvanized in their concern over the dam.  The Cumberland Chapter of the Sierra Club was formed to spearhead the opposition. (19).  In 1967, they arranged for environmentalist and United States Supreme Court Justice, William O. Douglas, to come to Kentucky and hike the Red River Gorge. (20)

That lake was never constructed, being finally abandoned during Governor Julian Carroll’s administration in 1975.  But many participants in the debate would later join the soon-to-be-forming Cabinet being established to address environmental issues in Kentucky.  In addition, non-governmental organizations, such as the Kentucky Chapter of the Nature Conservancy, would form to address further conservation interests in the state. (21)

The first task, however, was to create a modern governmental structure to deal with environmental issues.  That would require bringing together the scattered commissions and offices dealing with such issues.  Many were housed in state and local health and agriculture departments.  Others were found in commissions, such as the Kentucky Water Pollution Control Commission.

1972-1974

Democratic Kentucky Governor Wendell Ford (Governor 1972-1974) brought these agencies together through Executive Orders issued in 1972 and 1973.(22). As a result, the Kentucky General Assembly, in the first extraordinary session of 1972, created the Department of Environmental Protection through House Bill 3 (effective January 1, 1973).(23)

Thus the Governor brought together, for the first time in the Department for Natural Resources and Environmental Protection (DNREP), agencies dealing with solid waste, air pollution, water pollution, reclamation, forestry, soil and water conservation, flood control, water resources, pesticides, noise, wild rivers, orphan lands and beautification programs.(24). In 1972, the Kentucky Legislature passed the Kentucky Wild Rivers Act, partially in response to the Red River Gorge Dam controversy(25)

In 1974, Governor Ford ran for the Kentucky Senate Seat held by Republican Marlow Cook.  Winning the election, Cook resigned to allow Ford to be appointed by the Lieutenant Governor to the Senate Seat early for seniority purposes.

 1975-1979

Thus did Democrat Julian Carroll become Governor for the Commonwealth of Kentucky (Governor 1975-1979), first filling out Ford’s term, and then winning his own term outright.

A number of interesting environmental issues were addressed by the Carroll Administration.(26).  In 1976, the Kentucky State Nature Preserves Commission (KSNPC) was established. (27).  This was undoubtedly related to Carroll’s veto of the Red River Gorge Dam the year before.  In that same year, Kentucky received primacy to regulate drinking water under the Federal law. (28)

In 1978, the Commonwealth of Kentucky bought Maxey Flats, a large disposal site in Northeastern Kentucky, for low-level radioactive waste. (29)

The nation, in 1978, turned its attention to the toxic wastes buried at the Love Canal, and at the Valley of the Drums.  And, in 1979, there was a partial meltdown of a nuclear reactor at Three Mile Island in Pennsylvania.  Environmental interest was heating up again.

 1980-1983

Enter Democratic Governor John Y. Brown (Governor 1980-1983). (30).  Brown would complete the reorganization of Kentucky’s environmental agencies.  He quickly appointed prominent community activist, Jackie Swigart (1931-2018) as Secretary of the DNREP.  Then, in 1982, he elevated DNREP to Cabinet status as the Natural Resources and Environmental Protection Cabinet (NREPC).

During this time, Kentucky adopted its first water quality standards, and Louisville established a vehicle exhaust testing program (VET) to address air pollution in the Metropolitan area.  In 1983, Kentucky received primacy to administer the wastewater provisions of the Federal Clean Water Act.

The first coal permit for mountaintop removal was issued in Kentucky during this time.  And in 1984, the isocyanate tragedy occurred in Bhopal, India, followed in 1985 by a release of isocyanate in Institute, West Virginia. (31)

As previously noted, the promulgation of hazardous waste regulations (RCRA) and the passage of Superfund (CERCLA), in 1980, exploded the public’s awareness of the existence and risk of abandoned hazardous substances and waste disposal sites.  Kentucky’s “Valley of the Drums” became synonymous with New York’s “Love Canal” for the worst examples of these toxic waste sites.  And focus also turned to the Blue Grass Army Depot facility in Central Kentucky, which was a repository for storage of the military’s old chemical weapons stockpile, including Sarin, VX, and mustard gas.(32)

1984-1987

Democrat Martha Layne Collins was Kentucky’s next Governor (Governor 1984-1987).(33).  Her Administration addressed PCB contamination in Mud Creek in Russellville, Kentucky, and PCB disposal at Dayhoit in Eastern Kentucky.  And the environmental permitting for the giant new Toyota facility to be located outside of Georgetown, Kentucky, and the related litigation, took up much of the Administration’s focus.

Gov Collins NREPC team (1)

(Governor Martha Layne Collins NREPC Team, ca. 1984) (34)

In 1985, the Cabinet received primacy under the Federal Hazardous Waste Program.  The first lands unsuitable for mining petition was granted.  And, in 1986, the Chernobyl nuclear meltdown occurred in Russia.

Of special note was the incorporation of the Kentucky Resources Council in 1984, with attorney Tom Fitzgerald as its Director.  Fitzgerald has been an effective and untiring advocate for environmental issues in the Commonwealth, and is well respected in the halls of our legislature.

Image-1

(Testifying before the Legislature)(35)

In 1979, the Montreal Protocol, banning the production of ozone-depleting chlorofluorohydrocarbons, demonstrated the ability of international bodies to address global health risks. (36)

1988-1991

Democrat Wallace Wilkinson was elected as Governor (1988-1991).  Carl H. Bradley served as Cabinet Secretary for three years, and Art Williams, former Cabinet attorney, became Commissioner of the Department of Environmental Protection.

In 1988, Kentucky voters, by a vote of 4 to 1, amended the Kentucky Constitution (Section 19(2)) to protect rights of the surface owners, otherwise subject to Broad Form mining deeds.

Invasive Zebra mussels were found in Kentucky waterways and, in 1989, the Exxon Valdez ran aground in Alaska, releasing hundreds of thousands of gallons of oil into Prince William Sound.

In 1991, most of Robinson Forest in Eastern Kentucky was designated as “Lands Unsuitable for Mining” under the Federal mining law.  And, in the same year, the Kentucky legislature addressed the approximately 750 municipal landfills in the Commonwealth with a comprehensive update of the Commonwealth’s solid waste laws. (37)

But the major environmental controversy during these years surrounded the Union Underwear Company of Jamestown, Kentucky, requesting to dispose of chloride in wastewater from its fabric dyeing manufacturing process into Lake Cumberland.  Significant environmental issues were at stake, as well as $45 million in payroll.  Even the recreational boating community from surrounding states became involved.  An agency agreement was reached, which was then the subject of further litigation. (38)

1992-1995

Democrat Brereton Jones was elected Governor in 1991 (Governor 1992-1995).  Governor Jones then appointed attorney Phillip Shepherd as Cabinet Secretary. (39).  In 1994, Robert Logan was appointed Commissioner of the Department for Environmental Protection (DEP) within the Cabinet.  Logan was the first long-term Commissioner in that position, serving for nine years, 1994-2003. (40)

In 1992, Marc Evans of the KNPC identified Blanton Forest in Harlan County, Kentucky, as one of Kentucky’s last, large, old growth forests.  The great Kentucky conservationist, Tom Dupree (1930-2018), remembered fondly the trees at Blanton Forest from his youthful days attending Boy Scout Camp Blanton at its base in Harlan County. (41)

During this time, Kentucky received approval of its “Subtitle D” (a reference to the solid waste section of Federal RCRA) “solid waste” program from the Federal Government.  Unlike the strict “Subtitle C” regulation of “hazardous waste” (from “cradle to grave”), the Federal and State solid waste programs have struggled to deal with special wastes, construction demolition debris (CDD), beneficial reuse of special waste, including fly ash, bottom ash, and scrubber sludge from the utility sector, and land farming.

In 1993, President Clinton designated Kentucky’s Red River as a National Wild and Scenic River.  Such action finally concluded any Federal action to impound the river.  And, in 1993, the Cabinet for Human Resources entered into an agreement with Ashland Exploration for the reclamation of Naturally Occurring Radioactive Material (NORM) generated in its Martha Oil Fields in Lawrence County, Kentucky.

In that same year, the parasitic protozoan disease, Cryptosporidium, erupted in the Milwaukee drinking water system, sickening more than 400,000 people.

In 1994, the Federal Environmental Protection Agency (EPA) added the Paducah Gaseous Diffusion Plant in Western Kentucky to the CERCLA, Superfund National Priority List.  And, in the same year, the Cabinet negotiated with stakeholders for what was passed by the state legislature as the “Kentucky Agricultural Water Quality Act.” (42)

During this time of increasing environmental litigation in the courts, the Cabinet established an Office of Administrative Hearings within the agency. (43)

Jack Wilson retirement Dec. 2001 with Comm. Bob Logan

(Bob Logan at Jack Wilson’s Retirement, December 2001) (44)

 

1996-2003

Democrat Paul Patton (Governor 1996-2003) was the first Governor to be able to succeed himself, which he successfully did.  James Bickford served as Secretary of the Cabinet for seven years. (45). Much of environmental significance occurred during the Patton Administration. (46). Through the “2020 Water Management Plans,” the Patton Administration moved to extend drinking water lines throughout the Commonwealth. (47)

In 1998, the Kentuckians for the Commonwealth (KFTC) filed a petition seeking to declare the area on Black Mountain, in Harlan County, above 3,000 feet in elevation, as “Lands Unsuitable for Mining” under the Federal mining law.  A settlement was reached with the coal companies, protecting this area from mining while allowing limited logging practices. (48)

In 2000, there was a spill of 200,000 gallons (17,000 barrels) of bourbon into the Kentucky River from a fire at the Wild Turkey Distillery near Lawrenceburg, killing more than 200,000 fish. (49)

Also in 2000, the Martin County coal slurry spill occurred.  A Massey Energy coal slurry impoundment broke into underground mines, which released more than 300 million gallons of waste into the Tug Fork of the Big Sandy River in Northeastern Kentucky. (50)

In 2001, the Cabinet convened a stakeholder group to study brownfield legislation.  That legislation was spearheaded by the Kentucky League of Cities and became known as the Voluntary Environmental Remediation Program (VERP). It codified, for the first time, Federal screening levels for cleanup. (51)

In 2001, Patton put in place a 180-day moratorium on power plant applications (52) He then extended the moratorium to allow the 2002 Kentucky legislature to address the emerging energy market and the expansion of “merchant” power plants.  In 2002, the legislature created the Kentucky State Board on Electric Generation and Transmission Siting Board. (53)

Perhaps the most significant issue dealt with by the Patton Administration was that involving Concentrated Animal Feeding Operations (CAFOs).  In 1992, there were approximately 20 million chicken broilers raised in Kentucky.  By 1999, the number had surged significantly, to over 175 million.

At that time, the Kentucky legislature was meeting only every two years.  Governor Patton, therefore, issued a series of emergency regulations to address the burgeoning expansion of these factory farms in the interim, between sessions.  Litigation ensued, which would void the regulations, change the balance of power between the Executive and Legislative Branches, and result in a constitutional amendment to have the Legislature meet on an annual basis. (54)

 

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(Earth Day, 2005) (55)

 

2004-2007

Republican Ernie Fletcher (Governor 2004-2007) became the first Republican Governor since Louis Nunn (Governor 1968-1971). (56)  As part of government reorganization instituted by Fletcher, the NREPC, Labor and Public Protection Cabinets were merged into a new Cabinet, called the “Environmental Public Protection Cabinet” (EPPC).  Attorney Lajuana Wilcher was appointed the new Secretary, with Scott R. Smith as her Chief of Staff. (57).  Lloyd Cress served as Commissioner of Department of Environmental Protection (DEP), and Bruce Scott became Director of the Division of Waste Management.

Secretary Wilcher established a Black Water Taskforce to address water runoff in the minefields.  One of her major focuses was on dealing with the combined sewer overflows (CSOs) in municipal wastewater sewage systems.  Many Agreed Orders were executed with Kentucky municipalities for upgrades, including a significant one with the Louisville Metropolitan Sewer District (MSD).

DEP Team 2008 (2)

(Kentucky Department For Environmental Protection, ca. 2008) (58)

 

 2008-2015

Democrat attorney Steve Beshear (Governor 2008-2015) was elected as Governor, and would serve two terms.  One of the first actions the Beshear Administration undertook was to break back apart the EPPC and form a new Cabinet consisting of Energy, Natural Resources, and the Environment, called the “Energy and Environment Cabinet” (EEC).  Dr. Len Peters (1940-2019) would be Secretary of the Cabinet for seven years.  Bruce Scott would become Commissioner of DEP, a position he would hold for over eight years. (59)

The Beshear Administration established an Oil and Gas Taskforce to update the law to address new “fracking” technologies.  The Cabinet also began to focus on Discharge Monitoring Reports (DMRs) from coal operations. The Administration oversaw the placement of a “Cap” covering Maxey Flats.

A major policy development in the Cabinet was the development of “Bona Fide Prospective Purchaser Protections” for purchasers of contaminated property in Kentucky. (60). This was a controversial initiative, meant to free up contaminated property for reuse, while stepping back from the requirement of addressing the cleanup of contaminated property as first addressed by the “State Superfund.” (61)

Much of the focus of the Cabinet, during this time, was spent dealing with the Federal development of President Obama’s Clean Power Plan, addressing coal-fired utilities and their impact on climate change.

EEC 2016

(Energy and Environment Cabinet, ca. 2016) (62)

 2016-2019

Republican Matt Bevin was next elected Governor for one term (Governor 2016-2019).  He appointed former coal company Executive, Charles Snavely, as Secretary of the Cabinet.  Bruce Scott moved up to become Cabinet Deputy Secretary.

One of the Bevin Administration’s goals was the reduction of superfluous or unnecessarily burdensome regulations.  As part of this program, the Cabinet reviewed every statute and regulation under the Cabinet’s jurisdiction, leading to a streamline of regulations and repeal of outdated statutes.  And the Cabinet was physically consolidated, for the first time, into one office location (300 Sower Boulevard), giving rise for the opportunity to implement multiple reorganizations for the more efficient structure and operation of the Cabinet.

There were two specific events, during this time, that required the Cabinet’s focused attention.  One was the presence of Technologically Enhanced Naturally Occurring Radioactive Material (TENORM) from the out-of-state oil and gas industry, discovered in one of the Commonwealth’s solid waste landfills.  This was addressed in an enforcement action and regulatory reform through the Oil and Gas Taskforce.

Another environmental emergency was a spill from a fire at the Jim Beam Distillery to the Kentucky River.  The company was fined $600,000 and paid $112,000 in reimbursement costs to the Cabinet.

Another of the major developments noticeable, during this time, was the change in media reporting on issues related to the environment in Kentucky.  Nationally, the print media was changing, and a long line of local Kentucky reporters dedicated to reporting on environmental issues seemed to become eclipsed by the new digital media. (63)

 

 2020

Democrat attorney Andrew Beshear, son of the former Kentucky Governor, was elected in 2019 as Kentucky’s new Governor.  Rebecca Goodman was named Secretary of the Cabinet, Liz Natter as its General Counsel, Chris Fitzpatrick as General Counsel for the Department of Environmental Protection, and Tony Hatton as Commissioner for Environmental Protection.

New risks and challenges have surfaced in the Commonwealth as of the writing of this article.  The Covid-19 virus pandemic has been the prime focus of the Beshear Administration’s efforts.  The Cabinet has continued to operate effectively with most of its staff working, until recently, remotely from home.

We are in a new era of environmental protection in Kentucky.

 

    Endnotes:

(1) The author is a lawyer and biologist who has concentrated in the practice of environmental law for more than 40 years.  He began his legal career working in the Department for Natural Resource and Environmental Protection (DNREP) Office of General Counsel (OGC) as an environmental prosecutor from 1979 to 1981, dealing with hazardous waste, water pollution, and coal cases.  He has been in the private practice of law since, with offices currently in Shelby County, Kentucky.

(2) Office of General Counsel, Kentucky Department of Environmental Protection, ca. 1980.  Including Art Williams, Katie Daugherty, Rick Eisert, Bennie Hall, Frankie Burke, Rhonda Blackburn, Wayne Simon, Dick Dennis, Lexi Southworth, Pam Hockensmith, Reggie Van Stockum, Christy McPherson, Valerie Salven, Marilyn Waits, Alan Harrington, Carl Breeding, Bob Yarbrough, Caroline Chadwell, Gordon Goad, Iris Nickell, Dan Herndon, Pete Miranda, Marty Cunningham, and General Counsel Josh Santana.

(3) KRS 224.46-520, Prerequisites to Issuance of Permit for Storage, Treatment, Recycling or Disposal of Hazardous Waste – et seq., “(c) an evaluation of the social and economic impacts … and other psychic costs …”

(4) The author was fortunate to have been assisted in the preparation of this article by R. Bruce Scott, P.E.  Mr. Scott is a chemical engineer and a 37-year veteran of what is now the Kentucky Energy and Environment Cabinet (Cabinet), having served in different capacities as Environmental Engineer, Division of Water Branch Manager, Division of Waste Management Director, Commissioner of the Department for Environmental Protection, and Deputy Secretary of the Cabinet.

(5) Flint, Michigan, 2014.

(6) Her third book, The Sea Around Us, was a national bestseller.  It launched the career of Hollywood Director Irwin Allen, who won an Oscar for his documentary of the book in 1953.  Allen would go on to produce the television shows, Journey to the Bottom of the Earth, and Lost in Space, and the films entitled, The Poseidon Adventure and Towering Inferno.

(7) The author notes, however, that after we left the moon in 1972, humans have yet to walk again on its surface.

(8) 42 U.S.C. Section 4321 et seq.

(9) 42 U.S.C. Sections 7401 et seq.

(10) 33 U.S.C. Sections 1251 et seq.

(11)16 U.S.C. Sections 1531 et seq.

(12) 42 U.S.C. Section 6901 et seq.

(13) 1 U.S.C. Sections 2601 et seq.

(14) The different offices of the Cabinet’s Divisions were pulled together and housed in the old Hecht’s Department Store on Reilly Road in Frankfort, Kentucky.  From there, they expanded out, sending the Division of Waste Management to an old automobile dealership on Reilly Road, and the Division of Air to a building on Schenkel Lane.  Then the Divisions were brought together again in an old bourbon warehouse of the Buffalo Trace Distillery in Frankfort.  In 2016, the Divisions were reconsolidated and moved to their newly constructed quarters at 300 Sower Boulevard in Frankfort.

(15) “Environmental Protection Agency, Hazardous Waste and Consolidated Permit Regulation,” Monday, May 19, 1980, Volume 45 Federal Register, Book 2, pages 33063-33285 (in nine parts).

(16) 42 U.S.C. Sections 9601 et seq.

(17) See, for example, Kentucky’s “Brownfield Property Redevelopment and Reuse Law,” passed by the Kentucky Legislature in 2012, including KRS 224.1-415 and 401 KAR 102:010-020.

(18) Of note is the long-term career and contributions of Environmental Attorney Lloyd Cress, Sr. (1939-2017).  Cress was a native of Clay City, Kentucky.  His son, “Rusty” Cress, is a prominent Kentucky attorney dealing with environmental issues, with offices in Frankfort.

(19) Caroll Tichenor and Jim Kowalsky were instrumental in establishing the opposition.  Attorney Oscar Geralds (1929-2018) of Lexington brought legal actions to stop the dam, representing the “Red River Legal Defense Fund.”

(20) In 1972, the Sierra Club would bring a lawsuit against the Mineral King Development in the California Sierra Mountains.  Argued and lost at the Supreme Court, Justice Douglas nevertheless issued a now-famous dissent arguing that standing should be granted to inanimate objects and that they be considered, “…a ‘person’ for purposes of the judiciary process … as respects valleys, Alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life.”  Sierra v. Morton, 405 U.S. 727 (1972).

(21) Former Cabinet attorney Hugh Archer was the first Director of the Kentucky Chapter of the Nature Conservancy followed by James Aldrich.  The author was Chair of the Kentucky Chapter from 1997 until 2000, following Tom Dupree, and succeeded by Jim Welch in that position.

(22) Kentucky Governors actually take office in December of the year prior to the first year shown herein.

(23) House Bill 3, 1972, in the extraordinary session of 1972, created the “Department of Environmental Protection.”  By Executive Order 73-1, Governor Wendell H. Ford formed the “Department for Natural Resources and Environmental Protection (DNREP).  See also Ford’s Executive Order 72-1174.

(24) The legislature also created an Environmental Quality Commission (EQC) in 1972.  After years of under-funding, the legislature disbanded the Commission during the Bevin Administration.

(25) The Supreme Court of Kentucky addressed that Act in 1984 in Commonwealth v. Stearn Coal Lumber, 678 S.W.2nd 378 (Ky. 1984).  Representing the Cabinet were attorneys Carl W. Breeding, Arthur L. Williams, and Alan Harrington.  Williams would later become Commissioner of the Department of Environmental Protection under the Wilkinson Administration.  Notable attorneys submitting an amicus curial brief included attorneys Thomas J. Fitzgerald, W. Henry Graddy, and Oscar Geralds.

(26) Another local environmental issue to capture the nation’s attention, at the time, was the commencement of construction of the Marble Hill Nuclear Power Plant outside Hanover, Indiana.  Construction began in 1977, amid much protest and community opposition.  After spending more than $2 billion, the project was abandoned in 1984.

(27) In 2018, through Senate Bill 129, the KSNPC, the Kentucky Wild Rivers System (WRS), and the Kentucky Heritage Land Conservation Fund (KHLCF) were merged into the newly created Office of Kentucky Nature Preserves, reporting directly to the Cabinet Secretary.

(28) The Federal Safe Drinking Water Act (SDWA), 42 U.S.C. Section 3001.

(29) The advantage that Kentucky saw in the purchase is controversial, considering the long term liability.  In 1986, Maxey Flats was listed on the CERCLA, Superfund National Priorities List.  The Maxey Flats Section of the Superfund Branch of Kentucky’s Division of Waste Management currently addresses the site.

(30) As a businessman, Brown established the Kentucky Fried Chicken fast food chain, and owned the American Basketball Association’s Kentucky Colonels.  He was married to sportscaster and former Miss America, Phyllis George (1949-2020), who actively promoted Kentucky crafts.  The author had the privilege of representing the Cabinet against one of his father’s famous clients.  John Y. Brown, Sr. was a successful and well-known attorney, effectively arguing biblical parables, along with the law.

(31) The United States Congress quickly responded by passing the Emergency Planning and Community Right To Know Act (EPCRA) in 1986.  Although Federally administrated, it requires local and state emergency planning, as well as Tier I and Tier II chemical reporting, and release notification.  The law was incorporated into the Federal Superfund Amendments and Reauthorization Act of 1986 (SARA), signed into law by President Ronald Reagan.

(32) During the Brown Administration, the Federal Government chose incineration as a means of destruction for those chemicals.  Decades and millions of dollars later, that process is just beginning.

(33) Collins had previously held the Office of the Clerk of the Kentucky Court of Appeals and, later, the Kentucky Court of Appeals.  As such, soon-to-be Governor Collins would hand out admittance certificates to qualifying lawyers to the Kentucky Bar Association, and pose for pictures with new Bar members.  And so it was with the young author when he passed the Kentucky Bar examination in 1979.

(34) Governor Martha Layne Collins’ NREPC Team, ca. 1984.  Including Dave Rosenbaum, Brack Marquette, Ralph Schiefflerie, Bill Davis, Don Harker, Alex Barber, Scott Hankla, Boyce Wells, Charlie Martin, Karen Armstrong-Cummings, Carl Breeding, Roger McCann, Secretary Charlotte Baldwin, DEP Commissioner Mike Taimi, Stanley Head, and Roy Mullins.

(35) Testifying before the state legislature.  Tom Fitzgerald, Bill Barr, and Bruce Scott.

(36) A comparison of the international response to ozone depletion with that related to the impact of rising carbon dioxide concentrations and climate change is instructive.

(37) House Bill 2.

(38) Lake Cumberland Trust, Inc. et al. v. U.S. EPA, 954 F2d 1218 (6th Cir. 1992). The Jamestown plant of Union Underwear opened in 1981, employing approximately 3,000 people by 1990.  The Jamestown plant was closed permanently in 2014, laying off the then remaining 600 employees.

(39) A prominent attorney in the environmental arena, Shepherd served as Secretary of the Cabinet for four years.  Shepherd is currently one of two Circuit Judges in Franklin County, Kentucky, the seat of Kentucky’s Capitol, Frankfort.  As such, he hears a number of cases relating to the Cabinet and environmental issues.  He was first elected as Circuit Judge in 2006.  His rulings have often received the ire of the Governor’s office.

(40) Robert William Logan, age 70, died, after a battle with cancer, on Sunday, July 26, 2020.

(41) Tom Dupree, a financier from Lexington, was a firm supporter of conservation in Kentucky, serving and funding such organizations as The Nature Conservancy and the Kentucky Natural Lands Trust.

(42) See KRS 224.71-100 through KRS 224.71-140.

(43) See KRS 224.10-420 entitled, “Notice of Complaint-Answer to Charges – Petition by Aggrieved Party Hearing,” and the need to exhaust administrative remedies.

(44)DEP Commissioner Bob Logan at the retirement of Jack Wilson as Director, Kentucky Division of Water, 2001.  Present, also, was Angene Wilson.  Jack Wilson was acting Commissioner in 1979 when the author joined the Cabinet as a prosecutor.

(45) Secretary Bickford was a retired U.S. Army Brigadier General.  He was appointed in 1995, and died in 2002, while still in office.  He was known for his work in closing open dumps, the “skunk works” focused on permit backlog, customer relations training, and the creation, along with U.S. Congressman Hal Rodgers, in 1997, of the Eastern Kentucky PRIDE Program (Personal Responsibility In A Desirable Environment).  The 348-acre “James E. Bickford State Natures Preserve” was dedicated in his honor in 2003, and is located on Pine Mountain at the Pine Mountain Settlement School.

(46) This was also the time when tobacco settlement monies began to be paid to the Commonwealth.

(47) The program sought $2.8 billion for drinking water infrastructure over 20 years, including the construction of 1,200 miles of new water lines.

(48) Attorney Tom Fitzgerald of the Kentucky Resources Council represented KFTC, and attorney Joe Zaluski, the major coal interests.  There is a tower near the highest point on Black Mountain (near Holmes Mill, Kentucky), accessible to the public by which to view this area.

(49) The company paid $256,000 to the Cabinet in settlement.

(50) There was much political controversy relating to this release, including that of a Federal whistleblower, Jack Spadaro.  Massey Energy paid a penalty of $5,600 to the Federal Mine Safety and Health Administration.  See also the 2005 Appalshop documentary entitled, “Sludge.”

(51) See the VERP, KRS 224.1-510 through KRS 224.1-530, and KRS 224.1-532.

(52) Executive Order, June 11, 2001.

(53) KRS 278.700-KRS 278.718.

(54) See Patton v. Sherman et al., Civil Action No. 01-CI-00660 (January 11, 2002) and 13A.337 entitled, “Legislative Findings – Certain Administrative Regulations Void – Prohibition Against Promulgating substantially similar regulations – Judicial Review.”  The constitutional amendment was approved by 52% of the voters.

(55) Earth Day, 2005.  Including Fred Kirchoff, Bruce Scott, DEP Commissioner Lloyd Cress, Governor Ernie Fletcher, Secretary LaJuana Wilcher, Tim Bryant, Brian Bentley, and Sara Evans.

(56) Fletcher served one term, being defeated by Democrat Steve Beshear, after a criminal investigation over his hiring practices.

(57) Wilcher  had previously served as the Assistant Administrator for Water in the first President Bush’s EPA.  Smith was the founder, along with attorney, Sara Smith, of the Smith Management Group, an environmental consulting firm in Kentucky.

(58) Kentucky Department For Environmental Protection, ca. 2008.  Including DEP Commissioner Bruce Scott, Tony Hatton, Sean Alterri, Aaron Keatley, Jeff Cummins, John Lyons, Valerie Hudson, Tim Hubbard, and Peter Goodmann.

(59) It was also during the Beshear Administration, as a result of the Great Recession, that a series of budget cuts began, which has severely impacted the Cabinet.  Budget cuts have continued.

(60) KRS 224.1-415.

(61) KRS 224.1-400.  Erroneously referred to as the “State Superfund,” the statute, nevertheless, includes numerous provisions for cleanup, including KRS 224.1-400(18), which addresses releases by either “(a) demonstrating that no action is necessary … (b) managing the release … (c) restoring the environment … (d) any combination …”

(62) Kentucky Energy and Environment Cabinet management team, ca. 2016.  Secretary Charles Snavely, Deputy Secretary Bruce Scott, Peter Goodmann, Jeff Cummins, John Horne, Lt. Governor Jenean Hampton, Aaron Keatley, Lynn Gillis, Jeff Harmon, Kim Richardson, Kevin Cardwell, Allen Luttrell, Sean Alteri, John Mura, Haley McCoy, Talina Mathews, Dan Logsdon, John Small, Danny Hall, Courtney Skaggs, Bob Scott, Tony Hatton, and Jackie Quarles.

(63) Including Jim Detjen, Larry Tye, Andrew Milankovitch, Jim Bruggers, and Andy Meade.

5 Comments

  1. I liked it. Very interesting synopsis. I worked 18 years in the Cabinet, retiring in 2018, so I saw a few memories, and a lot of new information.

    I saw an error, in the Endnotes; Peter Goodmann spells his last name with two “n”s.

  2. Thanks for posting this summary and timeline! I was asked to prepare a very short history of the Division of Waste Management recently, and it’s amazing how much of this information is being lost.

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