Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Commonwealth v. Bowling

Court of Appeals of Kentucky

February 2, 2018

COMMONWEALTH OF KENTUCKY, ENERGY AND ENVIRONMENT CABINET APPELLANT
v.
JEFFERY LANCE BOWLING AND JOHN BAUGHMAN APPELLEES

         APPEAL FROM FRANKLIN CIRCUIT COURT HONORABLE PHILLIP J. SHEPHERD, JUDGE ACTION NO. 05-CI-01007

          John S. West Daniel Cleveland Frankfort, Kentucky BRIEFS FOR APPELLANT

          John B. Baughman Frankfort, Kentucky BRIEF FOR APPELLEE

          BEFORE: KRAMER, CHIEF JUDGE; ACREE AND JONES, JUDGES.

          OPINION

          ACREE, JUDGE

         The Energy and Environment Cabinet appeals the Franklin Circuit Court's July 27, 2016 order directing the Cabinet to pay a receiver his costs in the amount of $27, 005.00. The Cabinet argues it should not be responsible for the receiver's shortfall. We agree. Accordingly, we reverse that order.

         FACTS AND PROCEDURE

         The facts are not in dispute.

         David Bowling and his son, Jeffrey Lance Bowling, were involved with a company called Appalachian Waste Control. The company operated five waste water treatment facilities[1] in Johnson County, Kentucky. Jeffrey was the holder of a Kentucky Pollutant Discharge Elimination System (KPDES) permit for each treatment facility.

         In 2004, 2005, and 2006 the Cabinet repeatedly issued notices of violations of waste water regulations resulting from Appellees' inadequate operation and maintenance of the treatment facilities. In July 2005, the Cabinet filed a complaint and motion for an injunction seeking to enjoin Jeffrey, as the operator, from ongoing environmental degradation. The complaint also requested that Jeffrey "be required to retain a Kentucky licensed wastewater operator to operate the plants at issue or, in the alternative, a receiver be appointed to take possession of the facilities in question, receive the assets attendant thereunto including the monthly payments of the residents of the subdivisions and any and all other duties attendant and necessary to said appointment." (R. 7).

         The circuit court entered a temporary injunction enjoining Jeffrey from discharging or allowing to be discharged from the treatment facilities untreated sewage waste, constituents, or pollutants in excess of the limits permitted by the KPDES permits. A few months later, the Cabinet moved to hold Jeffrey in contempt for failing to abide by the temporary injunction. Jeffrey failed to appear at the contempt hearing, and a bench warrant was issued for his arrest.

         In December 2006, at the request of the Cabinet, the circuit court appointed a temporary receiver "to collect rates for the" treatment facilities and directed the Cabinet to "petition the Public Service Commission to take the necessary steps to appoint a permanent receiver to take over" the treatment facilities. (R. 226).

         On December 28, 2006, the Cabinet initiated abandonment proceedings with the Commission pursuant to KRS[2] 278.021. The Commission held a hearing to determine if the treatment facilities were, in fact, abandoned. Neither David nor Jeffrey appeared at the hearing. On December 18, 2007, the Commission issued an order directing the Commission's general counsel to "take all actions necessary to obtain, pursuant to KRS 278.021(1), an order from Franklin Circuit Court attaching the assets of Appalachian Waste Control and placing them under sole control and responsibility of a receiver."

         By order entered May 7, 2007, the circuit court appointed Prestonsburg City's Utilities Commission as operator to operate the treatment facilities at issue for one year, as well as a temporary receiver to collect fees from the customers and to pay the operator. In September 2009, John Baughman was appointed ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.