When Does Open Burning Violate Waste Site Environmental Performance Standards?

Could it be just a matter of principle that drives someone to spend megabucks to challenge – in three tribunals – a government fine in a considerably smaller amount?

Located in Florence, Kentucky, A-One Pallet, Inc., repairs, recycles, and disposes of wooden stacking and storage platforms.  Company owner Brian Bush purchased, in July 2013, a parcel of real estate that contained an abandoned, uninhabitable mobile home and a shed. 

Bush claims that he called the Boone County sheriff's office asking how to dispose of the mobile home, and somebody there told him to burn it. Between May 1, 2013 and September 30, 2013, however, Boone County (named for frontiersman and folk hero Daniel Boone) was subject to a ban on open burning, and Bush knew about it. In August, 2013, he hired an equipment operator to demolish the mobile home and shed, creating a large pile of debris. He added to the heap several pallets, as well as vegetation, trees, and other detritus he found on the property.

 In early October, 2013, Bill Fletcher, the Assistant Director of Boone County Emergency Management, visited the property and determined that the debris, which occupied a space roughly 50 feet long x 30 feet wide x 50 feet high, was stacked in such a way as to resemble a "burn pile."  Fletcher took more than 100 photos of the pile, which contained many items that legally could not be burned, including a tire and plastic items, fiberglass insulation, PVC piping, pressure-treated wood, asphalt shingles and paint cans.  Fletcher spoke with Bush by phone right after his visit, telling him that, while some items in the pile could be burned, many had be disposed of by other means.

About a week later, someone or something set fire to the debris pile, after which the sheriff, the local fire department, and county emergency management officials inspected the charred residue. Bush denied any part in the incident.  He even asked a friend who happened to be an arson investigator to look into how the fire might have started.  Bush ordered a roll-off dumpster and cleaned up the scene.  To this day, the origin of the fire remains a mystery.

On November 27, 2013, the state office (known as the Cabinet) for environmental protection issued a notice to Bush, citing him for violating state regulations controlling open burning. A considerable time later – three years and two days, to be exact – the Cabinet upgraded its unresolved concerns by filing an administrative complaint charging Bush with open burning offenses.  After more than another year elapsed, bringing the calendar to January, 2018, the Cabinet amended the complaint with additional charges under various statutes and regulations governing air pollution, open dumping, and standards for solid waste facilities. 

The Cabinet conducted a hearing on the complaint in September, 2018, nearly five years after the occurrence. Seven witnesses testified. Three of them provided statements describing debris allegedly stacked for the purpose of open burning.  Stuff in a heap?  Yes. By whom and with what intent?  They couldn’t say.   

The hearing officer’s report recommended that the Cabinet Secretary assess a civil penalty against Bush in the amount of $10,000 based on the open dump violations. The report further recommended that the Secretary deny the Cabinet's remaining claims because no evidence established either that Bush burned the debris pile or engaged someone else to do so. Both sides had an opportunity to file exceptions, that is, points of disagreement with the report. For their part, the agency staff took issue with the hearing officer’s recommendation that all charges, other than the open dump offenses, be dismissed.  

Ostensibly with delegated authority, the Deputy Secretary, after studying the report, issued an order partially adopting and partially rejecting the hearing officer's recommendations. The order found Bush liable on three of the four claims: open burning; open dumping; and violating waste site environmental performance standards.  On these claims, the Deputy Secretary, siding with agency staff, determined that direct evidence of Bush setting the fire was not necessary. 

Bush appealed to the Franklin County Circuit Court. He argued that the Deputy Secretary exceeded his authority (a) by rejecting the hearing officer's recommendations relating to the open burning and environmental performance charges and (b) by affirming the hearing officer's finding that he maintained an open dump. In short, he wanted to be left scot free.

 After hearing the evidence, Judge Phillip J. Shepherd ruled that the Deputy Secretary could lawfully reject the findings of the hearing officer regarding the open burning and environmental performance claims. He observed that the Deputy Secretary is required by law to consider, but not necessarily adopt, the findings of a hearing officer at an administrative hearing. He concluded that the Deputy Secretary sufficiently explained his decision on those two matters by referencing the staff’s exceptions. He further ruled that finding of open dumping was fully supported by substantial evidence in the hearing record.

Seeking a reversal of the trial judge’s decision and the Deputy Secretary’s order, Bush argued to a three-judge appellate panel that the trial judge was wrong in failing to conclude that the Deputy Secretary acted arbitrarily and contrary to law by picking and choosing among the hearing officer’s findings, by embracing the staff's exceptions, and by failing to make his own findings. Bush also asserted that the finding of liability on the charge of open dumping was unsupported by substantial evidence in the administrative record.  He insisted that he was working with local officials to clean up the property, not creating a dump. He contended that the approximately 30 untreated pallets he transported to the property were coated with a biodegradable, non-toxic, food grade stain that does not fit the state law definition of a "waste."

Under Kentucky law and the law in many other states as well, judicial review of an administrative agency’s decision is a two-step inquiry. First, are the agency’s findings supported by “substantial evidence”?  As used in a legal setting, “substantial” does not have its ordinary meaning: considerable or significant. Substantial evidence can be defined as whatever relevant information and reasonable inferences from such information that can support a conclusion, even when contrary facts exist and other conclusions might be reached.  Taken as a whole, the nature and weight of such evidence must be more than a smidgen but may be somewhat less than a preponderance. (The plaintiff in an ordinary civil lawsuit can win with a preponderance of the evidence, that is, by convincing the judge or jury that it is more likely than not that his or her claims are true.)  Second, if the court determines that the findings are supported by substantial evidence, then did the agency correctly applied the law to the facts?  If the answer to both questions is “Yes,” the decision must be upheld. 

With the Deputy Secretary’s findings being supported by the hearing record and comporting with the law, the appellate panel affirmed the circuit court ruling. “We find no basis for concluding that the circuit court improperly failed to find that the Deputy Secretary's order is arbitrary or capricious, nor that the Deputy Secretary failed to state a proper basis for rejecting the findings of the hearing officer,” the appeals court stated. 

“[T]he Deputy Secretary incorporated by reference the Cabinet's exceptions which described the evidence of record pertaining to the violation of Kentucky’s open burn prohibition . . .  that [Bush] hired an individual to demolish the mobile home, that the mobile home was collected in a burn pile, and that [Bush] transported dozens of wood pallets and hundreds of pallet scraps to the property and placed them on the pile. *  *  * [Bush] was familiar with the burn ban, and the debris was burned the first week after the ban expired. Fletcher and Fire Chief Jeff Hermes described the debris as a burn pile, and [Bush] testified that it was not cost-effective to dispose of the pallets except by burning them.”

The appeals court also rejected Bush’s argument that the Deputy Secretary’s findings with respect to the open dump were contrary to the facts and the law, and the trial judge was wrong in failing to so conclude. In particular, Bush insisted that the open dumping prohibition does not apply to someone who is not the generator of the solid waste or is not knowingly disposing of it.

He considered himself innocent because the waste was on the property when he purchased it.

“It is uncontroverted that [Bush] transported dozens of pallets and hundreds of pallet scraps to the property for which no solid waste permit had been issued and placed them on the burn pile,” the opinion continued.  “This . . . constitutes substantial evidence . . .  *  * * The Deputy Secretary implicitly rejected [Bush’s] argument that the pallets were placed on the burn pile merely to keep the other debris from blowing away and were not meant to be burned.”

                                                       __________________

                                                  The time to litigate is through

                                                  You find yourself in quite a mire

                                                  Pressing forward you can only lose

                                                  Just pay up and do as they require

                                                  Come on, Brian, fight your ire.

Bush v. Commonwealth, No. 2019-CA-1680-MR, Ky. Ct. App., Dec. 11, 2020.