Commonwealth of Kentucky Energy and Environment Cabinet v. Carl Eric Johnson A/K/A Bubba Johnson, D/B/A Johnson's Landfill

RENDERED: FEBRUARY 19, 2021; 10:00 A.M.
NOT TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals

NO. 2020-CA-0038-MR

COMMONWEALTH OF KENTUCKY,
ENERGY AND ENVIRONMENT
CABINET APPELLANT

APPEAL FROM FRANKLIN CIRCUIT COURT
v. HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 17-CI-00987

CARL ERIC JOHNSON, A/K/A
BUBBA JOHNSON, D/B/A
JOHNSON’S LANDFILL AND
BUBBA’S TOWING APPELLEE

OPINION
REVERSING AND
REMANDING

** ** ** ** **

BEFORE: ACREE, DIXON, AND K. THOMPSON, JUDGES.

DIXON, JUDGE: Commonwealth of Kentucky Energy, and Environment Cabinet

(“Cabinet”) appeals the order entered on December 2, 2019, by the Franklin
Circuit Court. Following review of the record, briefs, and law, we reverse and

remand for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL BACKGROUND

Carl Eric Johnson (“Johnson”) operated a landfill in the City of Olive

Hill, Kentucky, without a waste disposal permit from the Cabinet. On May 8,

2015, the Cabinet issued Johnson a notice of violation of KRS1 Chapter 224

concerning Environmental Protection. On October 6, 2015, Johnson and the

Cabinet participated in an administrative conference and reached an agreement,

documented in an agreed order entered April 27, 2016, in which Johnson admitted

to the violations described therein and accepted civil liability for same. Johnson

agreed to remediate the site within six months, submit monthly reports to the

Cabinet, pay a $1,000 civil penalty, and waive his right to a hearing. However,

Johnson subsequently failed to abide by the terms of the agreed order and to

complete remediation of the site within the time contemplated by the parties’

agreement.

After written warnings to Johnson regarding his noncompliance went

unheeded, the Cabinet brought this action seeking to enforce the agreed order.

Johnson answered, admitting “that being unrepresented by counsel he did enter

into an agreement with the Commonwealth as to penalty amount and

1
Kentucky Revised Statutes.

-2-
remediation[.]” ROA2 20. Johnson pled various affirmative defenses, including

duress. Shortly thereafter, the Cabinet moved the trial court for a judgment on the

pleadings. Johnson responded and moved the trial court to set aside the agreed

order, again noting that he was unrepresented by counsel and, more specifically,

that he was unaware of the exception in KRS 224.40-310 relied upon by the

Cabinet regarding waste disposal at the time of the agreement. The Cabinet

replied, asserting Johnson had the opportunity to retain counsel prior to entering

the agreement and his failure to do so did not constitute a valid reason for setting

aside the Agreed Order. Following a hearing on the matter, the trial court entered

an order denying both the Cabinet’s and Johnson’s motions on July 3, 2018.

Rather, the trial court sua sponte ordered the parties to include the City of Olive

Hill in mediation and make it a party to the action, and it placed the agreed order in

abeyance pending mediation.

Mediation was scheduled for August 15, 2018. A subsequent

agreement was reached by the parties, as documented by a second Agreed Order,

entered September 10, 2018. Johnson agreed to remediate the site within ten

months, submit monthly reports to the Cabinet, attend bi-monthly status

conferences, and pay a $10,000 civil penalty. Johnson failed to comply with the

2
Record on appeal.

-3-
terms of this second agreed order, and remediation of the site was not completed

within the timeframe agreed to by the parties.

On April 19, 2019, the Cabinet moved the trial court for entry of a

judgment finding Johnson in breach of the second agreed order and awarding the

Cabinet the stipulated penalty for said breach. Johnson responded, stating he had

hired a contractor to remove debris, but after only two months of work, the

contractor failed to perform additional waste removal. Johnson further claimed he

attempted to procure another contractor to conduct the site remediation but was

unable to do so until May 2019. Johnson acknowledged delay of performance

required under the second agreed order but asserted it was beyond his control. On

September 9, 2019, the trial court awarded the Cabinet a $5,000 judgment but

declined to enjoin Johnson from abating all violations immediately. In the same

order, the trial court sua sponte placed the abatement in abeyance pending the

prosecution of Olive Hill; Carter County, Kentucky; and an unnamed third-party

contractor.

The Cabinet moved the trial court to alter, amend, or vacate its

September 9, 2019, order, requesting: the amount of the penalty be increased to

reflect the parties’ agreed-on amount; additional parties not be prosecuted for

actions Johnson admitted were his responsibility; the trial court rescind its order

that the Cabinet prosecute individuals and entities it had previously declined to

-4-
prosecute; and the order be made final and appealable. On October 21, 2019, the

trial court granted the Cabinet’s motion by amending the amount of the penalty

from $5,000 to $10,000 but did not grant any other relief requested by the Cabinet.

The Cabinet moved the trial court to alter, amend, or vacate its

October 21, 2019, order, requesting the order be made final and appealable. On

December 2, 2019, the trial court entered an order granting the Cabinet’s motion.

This appeal followed.

REFUSAL TO ENFORCE AGREED ORDER

On appeal, the Cabinet argues the trial court erred when it denied the

Cabinet’s motions for judgment on the pleadings, effectively refusing to enforce

the agreed orders between the parties.3 Under CR 12.03, “any party to a lawsuit

may move for a judgment on the pleadings.” City of Pioneer Village v. Bullitt Cty.

ex rel. Bullitt Fiscal Court, 104 S.W.3d 757, 759 (Ky. 2003). A judgment on the

pleadings “should be granted if it appears beyond doubt that the nonmoving party

3
Johnson failed to file an appellee brief. Kentucky Rule of Civil Procedure (CR) 76.12(8)(c)
provides:

If the appellee’s brief has not been filed within the time allowed,
the court may: (i) accept the appellant’s statement of the facts and
issues as correct; (ii) reverse the judgment if appellant’s brief
reasonably appears to sustain such action; or (iii) regard the
appellee’s failure as a confession of error and reverse the judgment
without considering the merits of the case.

We choose to reverse the judgment for the reasons discussed herein.

-5-
cannot prove any set of facts that would entitle him/her to relief.” Id. The trial

court is “not required to make any factual determination; rather, the question is

purely a matter of law.” James v. Wilson, 95 S.W.3d 875, 883-84 (Ky. App.

2002). We review a judgment on the pleadings de novo. Schultz v. Gen. Elec.

Healthcare Fin. Servs., Inc., 360 S.W.3d 171, 177 (Ky. 2012).

We first note the Cabinet’s argument slightly mischaracterizes the

trial court’s orders. The orders of September 9, 2019, October 21, 2019, and

December 2, 2019, serve to, at least partially, grant the Cabinet’s motion for a

judgment on the pleadings. The September 9, 2019, order awarded the Cabinet

$5,000 with post-judgment interest pursuant to the terms of the April 27, 2016,

agreed order; the October 21, 2019, order amended the September 9, 2019, order to

award the Cabinet $10,000 as provided for in the parties’ September 10, 2018,

agreed order; and the December 2, 2019, order granted the Cabinet’s motion to

alter or amend its October 21, 2019, order to make it final and appealable.

Nevertheless, the Cabinet takes issue with the portion of the

September 9, 2019, order in which the trial court declined to enjoin Johnson from

abating all violations immediately. In its order, the trial court stated:

It has come to the Court’s attention that other entities are
also responsible for the transportation of materials to the
dump site, located on Defendant’s property. Those
entities need to be held accountable, simultaneous with
Defendant. The Court will take no further action against
Defendant until Plaintiff has cited other responsible

-6-
 parties. It is unrebutted that both the City of Olive Hill
and Carter County contributed to the site, and a third-
party contractor was also involved in the spread of
material on the dump. None of these entities have ever
been held accountable for their contribution to this
problem. Prosecution of the Defendant, exclusively, is
special enforcement, which is impermissible.

ROA 227-28. The trial court then held the matter of abatement in abeyance

pending prosecution of other entities.

“An agreement to settle legal claims is essentially a contract subject to

the rules of contract interpretation.” Cantrell Supply, Inc. v. Liberty Mut. Ins. Co.,

94 S.W.3d 381, 384 (Ky. App. 2002). The agreed orders herein represent just such

agreements. Under the rules of contract interpretation, the intentions of the parties

are to be discerned from the four corners of the document, and where there is no

ambiguity, extrinsic evidence should not be considered. Id. at 385.

The September 10, 2018, agreed order specifically acknowledged

Johnson was not responsible for the abatement of waste caused by the public road

construction. Numbered paragraphs 4 and 5 of the agreed order provide:

4. After approval of the determination of the Cabinet,
Defendant shall remove the solid waste, except those
materials including, but not limited to, sand, soil, rock,
gravel, or bridge debris extracted as part of a public road
construction project funded wholly or in part with state
funds.

5. Defendant shall lawfully remove and dispose of all
solid waste from his property, except waste exempted in

-7-
 paragraph no. 4, within ten (10) months from execution
of this Agreed Order.

ROA 94. Johnson was able to—and did—alert the Cabinet of any waste on his

property for which he felt he was not responsible at the time the agreement was

made, and the Cabinet was free to exempt Johnson from remediating such waste.

Thus, and as a matter of law, the trial court not only impermissibly declined to

enforce the parties’ agreement, but also needlessly attempted to obtain extrinsic

evidence from other entities. The terms of the agreement were unambiguous and

therefore, further evidence was irrelevant.

Furthermore, Johnson admitted he failed to remediate the site under

the terms of the greed order in his response to the Cabinet’s show cause motion.

ROA 123-24. Considering Johnson’s admission, and absent any genuine issue of

material fact or allegations of fraud in the inducement, the trial court should have

enforced the second agreed order. (“[A]bsent fraud in the inducement, a written

agreement duly executed by the party to be held, who had an opportunity to read it,

will be enforced according to its terms.” Conseco Fin. Servicing Corp. v. Wilder,

47 S.W.3d 335, 341 (Ky. App. 2001) (citing Cline v. Allis-Chalmers Corp., 690

S.W.2d 764 (Ky. App. 1985))). Accordingly, we must reverse and remand.

-8-
 JOINDER

The Cabinet next contends the trial court erred in its determination

that Olive Hill, Carter County, and an unidentified contractor should be joined as

parties in this action. As to joinder, we are mindful,

[t]he decision as to necessary or indispensable parties
rests within the sound authority of the trial judge in order
to effectuate the objectives of the rule. The exercise of
discretion by the trial judge should be on a case-by-case
basis rather than on arbitrary considerations and such a
decision should not be reversed unless it is clearly
erroneous or affects the substantial rights of the parties.

Commonwealth, Dep’t of Fish & Wildlife Res. v. Garner, 896 S.W.2d 10, 14 (Ky.

1995) (quoting West v. Goldstein, 830 S.W.2d 379 (Ky. 1992)).

CR 19.01 permits joinder of additional parties to a lawsuit under

certain limited circumstances. CR 19.01, titled “Persons to be joined if feasible[,]”

provides:

[a] person who is subject to service of process, either
personal or constructive, shall be joined as a party in the
action if (a) in his absence complete relief cannot be
accorded among those already parties, or (b) he claims an
interest relating to the subject of the action and is so
situated that the disposition of the action in his absence
may (i) as a practical matter impair or impede his ability
to protect that interest or (ii) leave any of the persons
already parties subject to a substantial risk of incurring
double, multiple, or otherwise inconsistent obligations by
reason of his claimed interest. If he has not been so
joined, the court shall order that he be made a party. If
he should join as a plaintiff but refuses to do so, he may
be made a defendant, or, in a proper case an involuntary

-9-
 plaintiff. If the joined party objects to venue and his
joinder would render the venue of the action improper, he
shall be dismissed from the action.

Kentucky courts have interpreted CR 19.01 stating:

“[a]n indispensable party is one whose absence prevents
the Court from granting complete relief among those
already parties.” Milligan v. Schenley Distillers,
Inc., 584 S.W.2d 751, 753 (Ky. App. 1979) (superseded
by statute on other grounds). Likewise, the Court
in [West, 830 S.W.2d 379], characterized a necessary
party as one whose interest would be divested by an
adverse judgment.

Kentucky Ass’n of Fire Chiefs, Inc. v. Kentucky Bd. of Hous., Bldgs. & Const., 344

S.W.3d 129, 134 (Ky. App. 2010), as modified (Jan. 14, 2011). See also Liquor

Outlet, LLC v. Alcoholic Beverage Control Bd., 141 S.W.3d 378, 387 (Ky. App.

2004).

CR 19.01 is patterned after Federal Rule of Civil Procedure (FRCP)

19.4 The only significant difference between the two concerns jurisdiction.

4
FRCP 19, in pertinent part, states:

(a) Persons Required to Be Joined if Feasible.

(1) Required Party. A person who is subject to service of
process and whose joinder will not deprive the court of
subject-matter jurisdiction must be joined as a party if:

(A) in that person’s absence, the court cannot
accord complete relief among existing parties; or
(B) that person claims an interest relating to the
subject of the action and is so situated that
disposing of the action in the person’s absence may:

-10-
Therefore, cases analyzing FRCP 19 are relevant in determining the proper

interpretation and application of CR 19.01.

(i) as a practical matter impair or impede the
person’s ability to protect the interest; or

(ii) leave an existing party subject to a
substantial risk of incurring double,
multiple, or otherwise inconsistent
obligations because of the interest.

(2) Joinder by Court Order. If a person has not been
joined as required, the court must order that the person be
made a party. A person who refuses to join as a plaintiff
may be made either a defendant or, in a proper case, an
involuntary plaintiff.

(b) When Joinder Is Not Feasible. If a person who is required to
be joined if feasible cannot be joined, the court must determine
whether, in equity and good conscience, the action should proceed
among the existing parties or should be dismissed. The factors for
the court to consider include:

(1) the extent to which a judgment rendered in the person’s
absence might prejudice that person or the existing parties;

(2) the extent to which any prejudice could be lessened or
avoided by:

(A) protective provisions in the judgment;

(B) shaping the relief; or

(C) other measures;

(3) whether a judgment rendered in the person’s absence
would be adequate; and

(4) whether the plaintiff would have an adequate remedy if
the action were dismissed for nonjoinder.

-11-
 Under FRCP 19, there is a bifurcated process for determining whether

a non-party is either necessary under subsection (a) or indispensable under

subsection (b).5 The Court in American Express Travel Related Services, Co. v.

Bank One-Dearborn, N.A., set forth the framework for how joinder determinations

are to be made under this bifurcated process, observing:

Rule 19 lays out a three-step test for courts to use in
determining whether an absent party must be joined.
[FRCP] 19. First, the court must determine whether the
party is necessary and should be joined under Rule 19(a).
If the person or entity is a necessary party, the court
looks to whether joinder is feasible, or if a lack of subject
matter or personal jurisdiction makes joinder impossible.
Third, if joinder is not possible, the court must weigh the
equities of the situation pursuant to Rule 19(b) and
determine if the suit can continue in the party’s absence
or if the case should be dismissed because the party is
indispensable. See [FRCP] 19; Hooper v. Wolfe, 396
F.3d 744, 747 (6th Cir. 2005); Glancy v. Taubman Ctrs.,
Inc., 373 F.3d 656, 666 (6th Cir. 2004).

195 F. App’x 458, 460 (6th Cir. 2006). Applying this framework, rather than

reviewing the applicability of each provision of FRCP 19, the analysis begins and

ends with subsection (a)—CR 19.01’s equivalent—if a non-party is determined not

to be necessary to the litigation.

5
In Kentucky, FRCP 19 is divided into CR 19.01 and CR 19.02. CR 19.01 is used to determine
whether a party is necessary, like FRCP 19(a). CR 19.02 addresses indispensability and is
essentially identical to FRCP 19(b).

-12-
 In Delgado v. Plaza Las Americas, Inc., 139 F.3d 1 (1st Cir. 1998),

the Court analyzed whether a non-party was necessary. Therein, Delgado’s

daughter was sexually abused and raped at a shopping center. Delgado sued the

shopping center seeking damages for emotional pain and suffering he experienced

as a result of his daughter’s rape. The trial court determined Delgado’s daughter

was a necessary party to the litigation under FRCP 19(a)(2)(ii), reasoning:

the potential for inconsistent verdicts in [Daughter’s]
state action and Delgado’s federal action subjected
defendants to a substantial risk of incurring multiple or
otherwise inconsistent obligations. The court also
observed that allowing the two actions to proceed would
be an inefficient use of judicial resources and raised the
specter of one of the plaintiffs using “offensive collateral
estoppel” against defendants.

Id. at 2. On appeal, the Court considered the correct interpretation and application

of FRCP 19. Noting a plaintiff has the right to control his litigation, the Court held

FRCP 19(a) balances those rights “against the defendants’ (and systemic) interests

in avoiding judgments giving rise to ‘inconsistent obligations.’” Id. at 3 (citation

omitted). The Court went on to explain the meaning of “inconsistent obligations”

under the Rule:

“Inconsistent obligations” are not, however, the same as
inconsistent adjudications or results. See Micheel v.
Haralson, 586 F.Supp. 169, 171 (E.D. Pa. 1983); see also
4 James Wm. Moore et al., Moore’s Federal Practice ¶
19.03 (3d ed. 1997). Inconsistent obligations occur when
a party is unable to comply with one court’s order
without breaching another court’s order concerning the

-13-
 same incident. See 4 Moore’s at ¶ 19.03. Inconsistent
adjudications or results, by contrast, occur when a
defendant successfully defends a claim in one forum, yet
loses on another claim arising from the same incident in
another forum. See [Nat’l] Union Fire Ins. Co. of
Pittsburgh v. Massachusetts Mun. Wholesale Elec. Co.,
117 F.R.D. 321, 322 (D. Mass. 1987) (citing Bedel v.
Thompson, 103 F.R.D. 78, 81 (S.D. Ohio 1984)); see also
Boone v. [Gen.] Motors Acceptance Corp., 682 F.2d 552,
554 (5th Cir. 1982) (the threat of inconsistent obligations,
not multiple litigations, informs [FRCP] 19(a)
considerations); Field v. Volkswagenwerk AG, 626 F.2d
293, 301 (3d Cir. 1980) (similar). Unlike a risk of
inconsistent obligations, a risk that a defendant who has
successfully defended against a party may be found liable
to another party in a subsequent action arising from the
same incident—i.e., a risk of inconsistent adjudications
or results—does not necessitate joinder of all of the
parties into one action pursuant to [FRCP] 19(a). See
Field, 626 F.2d at 301. Moreover, where two suits
arising from the same incident involve different causes of
action, defendants are not faced with the potential for
double liability because separate suits have different
consequences and different measures of damages. See In
re Torcise, 116 F.3d 860, 866 (11th Cir. 1997).

Id. With these considerations in mind, the Court then rejected the trial court’s

holding as to joinder.

In this situation, defendants faced a federal action and a
state action arising from the same incident. In reasoning
that defendants could be facing “inconsistent
obligations,” the district court noted that defendants
could be found liable to Delgado in federal court, but not
liable to [Daughter] in state court, or vice versa.
Although the court also looked to other factors in
reaching its conclusion, it is this determination—which is
really a determination that defendants faced the threat of
inconsistent results—that grounded the court’s ruling

-14-
 that [Daughter] was a necessary party to this lawsuit. Yet
as we have explained, the mere possibility of inconsistent
results in separate actions does not make the plaintiff in
each action a necessary party to the other.

Id. (emphasis added). See also LeBlanc v. Cleveland, 248 F.3d 95 (2d Cir. 2001);

Rishell v. Jane Phillips Episcopal Mem’l Med. Ctr., 94 F.3d 1407 (10th Cir. 1996).

Applied to the case herein, the failure to join additional parties poses no threat of

inconsistent obligations under CR 19 for those already parties.

CR 19.01 and FRCP 19(a) permit joinder if “in [the party’s] absence

complete relief cannot be accorded among those already parties.” In Janney

Montgomery Scott, Inc. v. Shepard Niles, Inc., the Court noted,

Under Rule 19(a), we ask first whether complete relief
can be accorded to the parties to the action in the absence
of the unjoined party. [FRCP] 19(a)(1). A Rule 19(a)(1)
inquiry is limited to whether the district court can grant
complete relief to the persons already parties to the
action. The effect a decision may have on the absent
party is not material.

11 F.3d 399, 405 (3d Cir. 1993) (emphasis added). “It is a misapplication of Rule

19(a) to add parties who are neither necessary nor indispensable, who are not

essential for just adjudication and who have a separate cause of action entirely.”

Bakia v. Cty. of Los Angeles, 687 F.2d 299, 301 (9th Cir. 1982) (internal citation

omitted). The criteria of “necessary” has been further explained as follows:

[i]f the interests of necessary parties are separable from
those of parties before the court, so that the court can
proceed to a decree, and do complete and final justice,

-15-
 without affecting other persons not before the court, the
persons not before the court are not [necessary] parties,
and the court may proceed with the case and adjudicate
upon the rights of those who are made parties.

59 Am.Jur.2d Parties § 130 (2002). Here, complete and final justice can be

obtained without joinder of the additional parties.

As explained in Corpus Juris Secundum,

Parties are not necessary to a complete determination of
the controversy unless they have rights which must be
ascertained and settled before the rights of the parties to
the suit can be determined. Accordingly, a person is not
a necessary party where he or she has no interest in the
subject matter of the litigation which can be affected by a
judgment or decree rendered therein as where an
adjudication of the rights of the other parties would in no
way affect his or her rights or where his or her presence
before the court is not necessary to a determination of the
issues joined between the parties to the action.

67A C.J.S. Parties § 3 (2020) (emphasis added) (footnotes omitted). The trial court

failed to identify its—or any—basis for compelling joinder herein. There is no

indication that the additional parties’ interests, if any, in the subject matter of this

litigation would be affected by a failure to be joined. Thus, there is no valid basis

pursuant to CR 19.01 to mandate joinder. Since the additional parties cannot be

viewed as necessary parties, we need not address any other provision of the rule.

Ultimately, since these additional parties are not necessary to the litigation, the trial

court’s order to join them to this action was erroneous and must be reversed.

-16-
 SEPARATION OF POWERS

The Cabinet further alleges the trial court violated the separation of

powers provisions of the Kentucky Constitution. Concerning separation of

powers, Section 27 provides:

The powers of the government of the Commonwealth of
Kentucky shall be divided into three distinct departments,
and each of them be confined to a separate body of
magistracy, to wit: Those which are legislative, to one;
those which are executive, to another; and those which
are judicial, to another.

KY. CONST. §27. Likewise, Section 28 states:

No person or collection of persons, being of one of those
departments, shall exercise any power properly belonging
to either of the others, except in the instances hereinafter
expressly directed or permitted.

KY. CONST. §28.

Regarding the power of Kentucky’s executive branch, Section 69

mandates:

The supreme executive power of the Commonwealth
shall be vested in a Chief Magistrate, who shall be styled
the “Governor of the Commonwealth of Kentucky.”

KY. CONST. §69. Kentucky’s executive branch also acts through its administrative

agencies. One of those agencies is the Cabinet. Pursuant to KRS 224.10-110:

The Energy and Environment Cabinet shall enforce the
rules and regulations adopted by the secretary of the
Energy and Environment Cabinet for the regulation and
control of the matters set out below and shall formulate,

-17-
 promote, establish and execute policies, plans and
programs relating to natural resources and environmental
protection, including but not limited to the following
matters:

(1) The proper disposal of waste[.]

(Emphasis added).

Ordinarily, “[j]udicial review of an administrative agency’s action is

concerned with the question of arbitrariness.” Com. Transp. Cabinet v. Cornell,

796 S.W.2d 591, 594 (Ky. App. 1990) (citing Am. Beauty Homes Corp. v.

Louisville and Jefferson Cty. Planning and Zoning Comm’n, 379 S.W.2d 450, 456

(Ky. 1964)). Section 2 of the Kentucky Constitution prohibits the exercise of

arbitrary power by an administrative agency. Id.

In determining whether an agency’s action was arbitrary,
the reviewing court should look at three primary factors.
The court should first determine whether the agency
acted within the constraints of its statutory powers or
whether it exceeded them. (citation omitted). Second,
the court should examine the agency’s procedures to see
if a party to be affected by an administrative order was
afforded his procedural due process. The individual must
have been given an opportunity to be heard. Finally, the
reviewing court must determine whether the agency’s
action is supported by substantial evidence. (citation
omitted). If any of these three tests are failed, the
reviewing court may find that the agency’s action was
arbitrary.

Cornell, 796 S.W.2d at 594.

-18-
 Here, we begin our review by turning to guidance from the United

States Supreme Court. In Heckler v. Chaney, the Court held:

This Court has recognized on several occasions over
many years that an agency’s decision not to prosecute or
enforce, whether through civil or criminal process, is a
decision generally committed to an agency’s absolute
discretion. See United States v. Batchelder, 442 U.S.
114, 123-124, 99 S.Ct. 2198, 2203-2204, 60 L.Ed.2d 755
(1979); United States v. Nixon, 418 U.S. 683, 693, 94
S.Ct. 3090, 3100, 41 L.Ed.2d 1039 (1974); Vaca v. Sipes,
386 U.S. 171, 182, 87 S.Ct. 903, 912, 17 L.Ed.2d 842
(1967); Confiscation Cases, 7 Wall. 454, 19 L.Ed. 196
(1869). This recognition of the existence of discretion is
attributable in no small part to the general unsuitability
for judicial review of agency decisions to refuse
enforcement.

470 U.S. 821, 831, 105 S.Ct. 1649, 1655, 84 L.Ed.2d 714 (1985) (emphasis

added). Thus, the trial court’s order for the Cabinet to prosecute additional entities

is inappropriate whether on these grounds—because the decision to prosecute is

within the Cabinet’s absolute discretion—or as a violation of the separation of

powers doctrine—because it is the Cabinet’s sole responsibility to enforce rules

and regulations concerning waste disposal under KRS 224.10-110 rather than the

court’s. Consequently, the trial court’s order for the Cabinet to prosecute other

entities must be reversed.

-19-
 CONCLUSION

Therefore, and for the foregoing reasons, the order entered by the

Franklin Circuit Court is REVERSED and REMANDED for further proceedings

consistent with this Opinion.

ACREE, JUDGE, CONCURS.

THOMPSON, K., JUDGE, DISSENTS AND DOES NOT FILE

SEPARATE OPINION.

BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEE.

Carl Williams
Daniel Cleveland
Frankfort, Kentucky

-20-