RENDERED: MARCH 1, 2024; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0493-MR

AND

NO. 2022-CA-0505-MR

A & G COAL CORPORATION;

BEECH CREEK COAL 

KENTUCKY CORPORATION;

FOUR STAR RESOURCES, LLC;

INFINITY ENERGY, INC.;

KENTUCKY FUEL

CORPORATION; SEQUOIA

ENERGY, LLC; VIRGINIA

FUEL CORPORATION;

JAMES C. JUSTICE, II; AND

JAMES C. JUSTICE, III APPELLANTS/CROSS-APPELLEES

APPEAL AND CROSS-APPEAL FROM FRANKLIN CIRCUIT COURT

v. HONORABLE THOMAS D. WINGATE, JUDGE

ACTION NO. 15-CI-01125

COMMONWEALTH OF KENTUCKY,

ENERGY AND ENVIRONMENT

CABINET APPELLEE/CROSS-APPELLANT

OPINION

AFFIRMING

**   **  **

BEFORE: CETRULO, JONES, AND TAYLOR, JUDGES.
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TAYLOR, JUDGE: A & G Coal Corporation; Beech Creek Coal Kentucky 

Corporation; Four Star Resources, LLC; Infinity Energy, Inc.; Kentucky Fuel

Corporation; Sequoia Energy, LLC; Virginia Fuel Corporation; James C. Justice, 

II; and James C. Justice, III (hereinafter collectively referred to as appellants) bring 

Appeal No. 2022-CA-0493-MR from a November 9, 2021, Order of the Franklin 

Circuit Court, as amended by Order entered April 18, 2022, enforcing a Settlement 

Agreement entered into with the Commonwealth of Kentucky, Energy and 

Environment Cabinet (Cabinet), on April 30, 2019 and incorporated into an Agreed 

Judgment entered on October 21, 2019. The Cabinet has filed a Cross-Appeal 

from the same Orders in Cross-Appeal No. 2022-CA-0505-MR, contesting the 

circuit court’s amendment of the interest rate on the outstanding sum owed by 

appellants as set out in the Settlement Agreement and Agreed Judgment. For the 

reasons stated, we affirm both appeals.

I. APPEAL NO. 2022-CA-0493-MR

BACKGROUND

On August 15, 2014, the parties entered into an Agreed Order (2014 

Agreed Order) with the Cabinet that required appellants to timely complete certain 

reclamation activities on coal mining permits contained in the 2014 Agreed Order 
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by September 1, 2015.1 Incorporated into the 2014 Agreed Order was an 

admission by appellants that they had breached twelve previous agreed orders 

relating to many of the violations and penalties at issue in the 2014 Agreed Order. 

The 2014 Agreed Order provided for bonding requirements and permitting actions. 

Notably, it was stipulated that the appellants owed the Cabinet $4,498,995 – an 

amount the parties agreed fairly represented the combined value of several civil 

penalties the Cabinet could have otherwise assessed against appellants under 

Kentucky law. Further, the 2014 Agreed Order stipulated that if appellants strictly 

complied with and satisfied all of the order’s terms by September 1, 2015,2

appellants would only owe the Cabinet $1.5 million. In the event appellants failed 

to do so, however, whatever remained of the $4,498,995 would be due as of that 

date and would begin to accrue interest from September 1, 2015.

On October 23, 2015, the Cabinet initiated the underlying action in 

Franklin Circuit Court to enforce the 2014 Agreed Order. In its complaint, the 

Cabinet alleged appellants failed to comply with the terms of the 2014 Agreed 

1 The 2014 Agreed Order was entered in an administrative proceeding before the Energy and 

Environment Cabinet (Cabinet) on August 15, 2014, and signed by Leonard K. Peters, as 

Secretary of the Cabinet.

2 Paragraph 51 of the 2014 Agreed Order provided: “Time is of the essence in the 

implementation of this Agreed Order by the Petitioners and the terms of this Agreed Order are to 

be strictly construed so as to achieve prompt and complete abatement of violations and payment 

of civil penalties.” Paragraph 56 provided that “Failure to complete all remedial measures by 

September 1, 2015, unless under extension granted . . . , shall result in the imposition of the 

[various breach remedies] without hearing or notification of breach.”
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Order. After nearly four years of litigation and at least four mediations that 

followed, the parties then entered into a Settlement Agreement effective April 30, 

2019, (2019 Settlement Agreement). The terms of the 2019 Settlement Agreement 

required appellants to pay the principal balance remaining from the 2014 Agreed 

Order ($2,998,995). Among other terms, it also required appellants to complete 

reclamation activities at five different sites by specified times and to post a letter of 

credit with the Cabinet to secure the payment of the principal balance owed. 

Paragraph 7 of the 2019 Settlement Agreement further provided that if 

appellants “fully satisfied all of the obligations set forth in this Settlement 

Agreement within all of the time frames specified in this Settlement Agreement as 

confirmed by the [Cabinet], the [Cabinet] shall acknowledge that the principal 

balance of the $2,998,995 civil penalty plus interest accrued thereon owed by the 

[appellants] to the [Cabinet] pursuant to the August 15, 2014 Agreed Order has 

been fully satisfied.” In the event appellants failed to do so, Paragraph 10 

provided, in sum, that appellants would immediately be in default, and that the 

Cabinet would be entitled to the relief and remedies otherwise provided pursuant to 

the 2014 Agreed Order.

Subsequently, the parties jointly sought and were granted an Agreed 

Judgment entered by the circuit court on October 21, 2019. Importantly, for 

purposes of this appeal, the Agreed Judgment incorporated therein the terms of the 
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2019 Settlement Agreement and the 2014 Agreed Order. On September 27, 2021, 

the Cabinet moved the circuit court to declare appellants in default of the 2019 

Settlement Agreement, and to enforce the Agreed Judgment of October 21, 2019. 

Appellants did not dispute that they had failed to complete all the reclamation 

activities at the five different sites by the deadlines specified in the 2019 

Settlement Agreement. Nevertheless, they argued they should not be found in 

default because, as they asserted, the COVID-19 pandemic made it “impractical” 

for them to perform the required work. And, due to that purported impracticality, 

appellants argued the circuit court was required to exercise its equitable authority 

to provide them a six-month extension regarding their obligations. Ultimately, the 

circuit court rejected appellants’ arguments and entered an Order enforcing the 

October 21, 2019, Agreed Judgment in favor of the Cabinet. This appeal followed. 

STANDARD OF REVIEW

As noted, this appeal looks to the enforcement of the Agreed 

Judgment entered into by the parties on October 21, 2019, that incorporated the 

terms of the parties’ 2019 Settlement Agreement as well as relevant terms of the 

2014 Agreed Order. The circuit court concluded that appellants failed to comply 

with the 2019 Settlement Agreement. Accordingly, our review in this appeal 

necessarily looks to the interpretation and construction of the terms of the 2019

Settlement Agreement, which is well-established under Kentucky jurisprudence to 
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be questions of law for this Court. See Cinelli v. Ward, 997 S.W.2d 474, 476 (Ky. 

App. 1998). Accordingly, our review is de novo. Id.; see also Nelson v. Ecklar, 

588 S.W.3d 872, 878 (Ky. App. 2019). 

ANALYSIS

The primary arguments raised by appellants in this appeal are: (1) 

appellants’ substantially complied with most of their obligations under the 2019 

Settlement Agreement; (2) their failure to complete all the reclamation activities at 

the five different sites by the deadlines specified in the 2019 Settlement Agreement 

should have been excused under the doctrine of “impracticability”; and (3) the 

circuit court should have equitably modified their agreed-upon deadlines in the 

2019 Settlement Agreement to provide them a six-month extension, rather than 

declaring them in breach.

Regarding their argument of substantial compliance, even if 

appellants substantially complied with their obligations, substantial compliance 

was not a valid defense to the appellant’s breach of the 2019 Settlement 

Agreement. The 2014 Agreed Order required strict compliance, and that 

requirement was never modified; instead, it was effectively reemphasized in 

Paragraph 10 of the 2019 Settlement Agreement and as noted, incorporated into the 

October 21, 2019, Agreed Judgment. Thus, this argument fails on its face.
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As concerns appellants’ argument of “impracticality” due to the Covid 

pandemic, we agree with and adopt the well-reasoned analysis of the circuit court. 

As set forth in its initial order of November 9, 2021, the circuit court explained in 

relevant part:

In Frazier v. Collins, Kentucky’s former highest court 

acknowledged the doctrine of impossibility and opined:

The general rule is that a party to a contract 

will not be relieved of the obligations 

undertaken by him merely because 

supervening events have rendered the 

contract unprofitable, even though the 

supervening event be a law, regulation, or 

other governmental act . . . It is only where 

the governmental act makes unlawful the 

obligation assumed under a contract, 

prohibits its performance or otherwise 

renders performance impossible that the 

obligor will be excused from further 

performance.

187 S.W.2d 816, 817-18 (Ky. 1945) (internal citations 

omitted). The Court finds the holding in Frazier

particularly relevant to the underlying matter as the 

appellees in Frazier argued that the rationing of gas by 

the federal government – due to World War II – had 

made performance of the contract unprofitable or onerous 

because the economically disruptive events were not 

contemplated at the time the contract was entered. Id. at 

817. As noted above, the court rejected the appellees’ 

position and opined that it is “an elementary principle of 

law of contracts that when a party engages without 

qualification to do an act, his performance is not excused 

because it becomes onerous or unprofitable. It is deemed 

his own fault if he does not expressly provide against 

contingencies and exempt himself from responsibility in 
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certain events.” Id. at 818-19 (quoting Mid-Continent 

Petroleum Company v. Barrett, 181 S.W.2d 60, 62 (Ky. 

1944)). Moreover, recently the Kentucky Court of 

Appeals reaffirmed the holding in Frazier with respect to 

the doctrine of impossibility in Jackson Hospital 

Corporation v. United Clinics of Kentucky, LLC, 545 

S.W.3d 327, 333 (Ky. Ct. App. 2018).

Nevertheless, whether the Court analyzes the 

present issue under the accepted defense, the doctrine of 

impossibility, or [appellants’] desired defense of 

impracticability, the Court agrees with the Cabinet that 

the COVID-19 pandemic is not a justifiable reason for 

[appellants] having failed to complete the required work. 

As noted above, the [appellants] have been aware of the 

violations for nearly a decade. The parties entered the 

2014 Agreed Order with the intent for the violations to be 

amended by September 1, 2015. After [appellants] failed 

to timely complete the work under the 2014 Agreed 

Order, the Cabinet filed the underlying action seeking 

enforcement of the 2014 Agreed Order, including the 

penalties contained therein. Over four (4) years the 

Court gave [appellants’] the opportunity to complete the 

required work and sent the parties to mediation four (4) 

times in attempt to settle the ongoing issues. After 

lengthy negotiations, the parties entered into the 2019 

Settlement Agreement, which was approved by the 

Court.

Over six (6) years have passed since this present 

action began, and [appellants] have still not fixed the 

violations. The relevant sites have not been touched 

since before the COVID-19 pandemic began. 

Nevertheless, under the 2019 Settlement Agreement, 

failure of [appellants] to complete any of their 

obligations renders them in default. Thus, [appellants’]

failure to complete the required reclamation activities at 

Sequoia by December 31, 2019, indisputably before the 

Commonwealth’s COVID-19 emergency declaration on 
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March 6, 2020, rendered [appellants] in default of the 

2019 Settlement Agreement.

The Court also finds [appellants’] arguments with 

respect to the COVID-19 pandemic unpersuasive because 

[appellants] have had years to complete the required 

work, but failed to make even the smallest effort since 

entering into the 2019 Settlement Agreement. The 

deadlines contained in the 2019 Settlement Agreement 

were either before, less than two (2) months after, and 

less than four (4) months after the Commonwealth’s 

emergency declaration, yet, Kevin Hembre (“Hembre”), 

Assistant Director of Mine Reclamation and 

Enforcement, offers that there has been no work to 

stabilize the hollow fill at Bevin’s Branch in five (5) 

years and no work to reclaim the 2,940 feet of highwall 

at the site since early 2019. Affidavit of Kevin Hembre, 

¶ 7-8. At the Sequoia site, Hembre states that no work 

has been done to reclaim the highwall in four (4) years. 

Id., ¶ 9. Finally, at Infinity, Hembre provides that no 

work has been done on the site since the Agreed 

Judgment was entered. Id., ¶ 10-11. Furthermore, the 

Court rejects [appellants’] argument that it was 

impractical for [appellants] to complete the required 

reclamation work, because, as previously outlined, 

[appellants] had not made an effort to perform the 

reclamation work months and years prior to the COVID19 pandemic.

Consequently, to the Court, this shows that the 

COVID-19 pandemic is not an excuse for the 

[appellants’] failure to complete their contractual 

obligations. Nevertheless, the Court would be remiss not 

to point out that Governor Andy Beshear issued an 

Executive Order on March 25, 2020, which declared 

mining as a life-sustaining business allowed to remain 

open during any state shutdown. Ky. Exec. Order No. 

2020-257 (March 25, 2020). Thus, the Commonwealth 

has never interfered, even while navigating an 
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unprecedented pandemic, with [appellants’] ability to 

conduct mining work.

November 9, 2021, Order at 6-8.

Appellants next argue that the circuit court should have equitably 

modified their agreed-upon deadlines regarding their obligations and provided 

them a six-month extension. In support, they largely rehash their “impracticality 

due to COVID-19” argument, but otherwise cite no rule of law that required the 

circuit court to “equitably modify” their bargain with the Cabinet. We reject this 

argument for the same reasons set forth above. To quote the circuit court on this 

point, appellants “failed to meet their obligations under the 2014 Agreed Order and 

have now failed to meet their obligations under the 2019 Settlement Agreement. 

The [Cabinet], nor the Court, has any obligation to continue to grant [appellants] 

leniency.”

The remainder of appellants’ appeal takes aim at the circuit court’s 

award to the Cabinet of interest at a rate of 8 percent per year on the outstanding 

balance of penalties owed as of September 1, 2015. First, appellants argue the 

circuit court erred in granting any award of prejudgment interest to the Cabinet

because the statute delineating much of the Cabinet’s civil penalty authority, 

Kentucky Revised Statutes (KRS) 350.990, does not authorize the Cabinet to 

impose interest on its penalties.
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But irrespective of what KRS 350.990 provides, the Cabinet was not 

awarded prejudgment interest because it “imposed” a “civil penalty” against 

appellants pursuant to its statutory authority. The Cabinet was awarded 

prejudgment interest because appellants agreed to paying the Cabinet interest as 

part of the 2019 Settlement Agreement. Appellants do not contend that the 

Cabinet lacked authority to enter into the 2019 Settlement Agreement. Nor is this 

Court aware of any law or regulation that prohibits the Cabinet from negotiating 

the payment of interest on past due penalties, especially when as in this case, the 

Cabinet granted appellants extensions of time to comply with their legally required 

reclamation obligations. Accordingly, this argument is totally without merit.

Finally, appellants argue the circuit court erred by determining that 

prejudgment interest could begin accruing on September 1, 2015. In their view, 

this was contrary to the terms of their settlement agreement with the Cabinet and 

constituted an impermissible “penalty” of “retroactive interest.” We disagree. 

Paragraph 10 of the settlement agreement, as incorporated into the circuit court’s 

Agreed Judgment of October 21, 2019, provided in relevant part:

In the event of default by the Justice Defendants . . . the 

Justice Defendants shall be responsible for payment to 

the Cabinet of interest accrued on the principal sum of 

the $2,998,995 civil penalty from September 1, 2015[,]

pursuant to the August 15, 2014[,] Agreed Order.
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The Agreed Judgment of October 21, 2019, did not forgive any 

interest on the principal sum of $2,998,995 that remained from what was owed 

under the Agreed Order of August 15, 2014. Likewise, the Agreed Judgment did 

not prevent interest from continuing to accrue on the principal amount owed. The 

Agreed Judgment merely offered appellants a conditional means of having that 

interest forgiven: Strict compliance with its terms. Accordingly, there was no 

“retroactive penalty” as claimed by appellants. Having failed to strictly comply 

with the terms of the Agreed Judgment of October 21, 2019, including the 2019 

Settlement Agreement, appellants were in default thus triggering the imposition of 

interest on the outstanding penalties owed to the Cabinet.

II. CROSS-APPEAL NO. 2022-CA-0505-MR

On cross-appeal, the Cabinet contests the rate of interest it was 

awarded as of September 1, 2015, in the circuit court’s Order entered April 18, 

2022, amending the court’s November 9, 2021, Order. As indicated, the circuit 

court awarded interest at the rate of 8 percent per year on the outstanding penalties 

owed. The Cabinet argues the circuit court erred in doing so because the agreed

interest rate under the 2019 Settlement Agreement was 8 percent per day or 2,920

percent per annum, not 8 percent per year.

3

3

In Paragraph 54 of the 2014 Agreed Order, the parties agreed that a breach of the terms of the 

order would result in the imposition of interest at the rate of 8 percent per day on the outstanding 

balance owed. Paragraph 10 of the 2019 Settlement Agreement provided upon default, for the 
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Before addressing in detail the Cabinet’s argument, some additional 

background is necessary. To be clear, 8 percent interest on a per day basis (e.g., 

2,920 percent per year) is what the parties’ agreement provided. Furthermore, the 

circuit court correctly rejected appellants’ argument that this rate of interest was 

merely the product of a mistake. Resolving that point in its order of November 9, 

2021, the circuit court explained: 

First, Defendants were well represented by counsel when 

negotiating both the 2014 Agreed Order and the 2019 

Settlement Agreement. The 2014 Agreed Order specifies 

an 8% daily interest rate in two (2) places; paragraphs 48 

and 54(A). Thus, it appears impossible to the Court that 

the skilled parties and counsel would overlook a mistake 

twice in a contract. The Court also finds Defendants’ 

admission that the 8% daily interest rate under the 2014 

Agreed Order did apply to the $50,000 per month 

installment payments of the $1,500,000 penalty 

Defendants paid to the Cabinet particularly illuminating 

of the parties’ true contracting intentions. This makes it 

clear to the Court that Defendants were aware of the 8% 

daily interest rate that is contained in paragraphs 48 and 

54(A) of the 2014 Agreed Order. Furthermore, notably, 

paragraph 10 of the 2019 Settlement Agreement 

incorporates paragraph 54 of the 2014 Agreed Order and 

sets forth payment to the Cabinet of interest accrued on 

the civil penalty. Again, it appears impossible to the 

Court that the skilled parties and counsel would overlook 

this mistake and not alter the interest rate, if that was the 

parties’ true intentions. . . . 

November 9, 2021, Order at 13-14.

recovery of interest from September 1, 2015, pursuant to the terms of the 2014 Agreed Order. 

All of these provisions were incorporated into the 2019 Agreed Judgment. 
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Despite initially upholding the parties’ agreed-upon 2,920 percent rate 

of interest in its Order of November 9, 2021, the circuit court later granted a 

Kentucky Rules of Civil Procedure (CR) 59.05 motion filed by appellants and 

reconsidered its position. In its April 18, 2022, Order, the circuit court explained it 

agreed with appellants that an 8 percent per day interest rate – which would have 

effectively required appellants to pay close to $600,000,000 in interest on a less 

than a $3,000,000 judgment – was “an excessive amount” and would have resulted 

in “manifest injustice.” Accordingly, the court refused to enforce the parties’ 

agreed-upon interest rate, and instead required appellants to pay interest on the 

judgment “at a rate of 8% per year from September 1, 2015, until paid in full.”

With that in mind, the Cabinet’s sole argument on appeal is that it was 

entitled to its agreed-upon interest rate of 2,920 percent per annum – and nothing 

less – because none of Kentucky’s various usury statutes prohibited it from 

receiving the benefit of its bargain. The Cabinet notes that its agreement with 

appellants was in writing and for an amount in excess of $15,000. Therefore, KRS 

360.010(1)(b) permitted the parties to agree upon “any rate.” KRS 360.040 also 

provides “[a] judgment rendered on a contract, promissory note, or other written 

obligation shall bear interest at the interest rate established in that contract, 

promissory note, or other written obligation.” KRS 360.040(3) (emphasis added).
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With respect to usury, the Cabinet is correct that Kentucky’s 

applicable statutes would not invalidate this aspect of its bargain with appellants. 

Indeed, usury is not an available defense for corporations and their sureties or 

guarantors. See KRS 360.025; see also E’Town Shopping Center, Inc. v. Lexington 

Finance Co., 436 S.W.2d 267, 269 (Ky. 1969). When the circuit court held that 

the agreed-upon rate was “excessive,” it did not cite “usury” or any other legal 

authority in support of the court’s change of heart regarding the Cabinet’s 

entitlement to 2,920 percent per annum interest. For the purpose of this appeal, we 

presume that the circuit court’s decision was founded upon at least one of the 

arguments appellants properly raised below. See Sword v. Scott, 169 S.W.2d 825, 

827 (Ky. 1943) (“In the absence of the court’s specifying the ground or grounds for 

his dismissal of the petition, it will be assumed that it was upon any or all of the 

grounds which the proof sufficiently established.”). And one such argument

below,

4 with which we agree, was that a 2,920 percent yearly rate of interest 

constituted an unenforceable contractual penalty upon appellants. 

4 The Cabinet notes that appellants raised new arguments in their Kentucky Rules of Civil 

Procedure (CR) 59.05 motion below, and contends the circuit court erred if its reconsidered 

judgment was based upon any of them. See, e.g., Hopkins v. Ratliff, 957 S.W.2d 300, 301 (Ky.

App. 1997) (“A party cannot invoke [CR 59.05] to raise arguments and introduce evidence that 

could and should have been presented during the proceedings before entry of the judgment.”)

(Citation omitted.) But, A & G Coal Corporation; Beech Creek Coal Kentucky Corporation; 

Four Star Resources, LLC; Infinity Energy, Inc.; Kentucky Fuel Corporation; Sequoia Energy, 

LLC; Virginia Fuel Corporation; James C. Justice, II; and James C. Justice, III, (collectively 

referred to as appellants) argued that the 2,920 percent yearly rate of interest constituted an 
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Ascertaining whether a contractual provision is an impermissible 

penalty is a question of law. See Fidelity & Deposit Co. of Maryland v. Jones, 75 

S.W.2d 1057, 1060 (Ky. 1934). As for what guides our analysis, “[j]ust 

compensation for the injury sustained is the principle at which the law aims, and 

the parties will not be permitted, by express stipulation, to set this principle aside.” 

Id. at 1060 (citation omitted). “[I]t is not the policy of the courts to enforce 

stipulated damage provisions that are far in excess of the actual damages that 

would naturally flow from a breach.” Uncle George Orphans Home, Inc. v. 

Landrum, 551 S.W.2d 582, 584 (Ky. App. 1977) (citation omitted). With respect 

to the law governing liquidated damages, such provisions are only deemed 

enforceable (1) where actual damages would be uncertain or difficult to ascertain; 

and (2) the amount agreed upon is not greatly disproportionate to the actual injury. 

See Goetz v. Asset Acceptance, LLC, 513 S.W.3d 342, 346 (Ky. App. 2016). If the 

parties merely intended the liquidated damages provision as a penalty for breach, 

rather than as compensation, it is not enforceable. See Jones, 75 S.W.2d at 1059-

1060.

We conclude that under the facts and circumstances of this case now 

on appeal, the rate of interest specified by the parties was an unenforceable penalty 

unenforceable contractual penalty in a memorandum filed with the circuit court on November 1, 

2021, prior to the circuit court’s initial dispositive ruling in this case.
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provision. Absent appellants’ default, no interest was owed. We must agree with 

the circuit court that 2,920 percent per annum interest constitutes a manifest 

injustice. The Cabinet makes no argument that this rate of interest was in any way 

related to compensation for a breach. Nor does the Cabinet argue that this 

contractual rate was otherwise a “means of recognizing the economic reality that 

[appellants have] enjoyed a long opportunity to earn interest on the money that 

[they] wrongfully withheld.” Reliable Mechanical, Inc. v. Naylor Industrial 

Services, Inc., 125 S.W.3d 856, 858 (Ky. App. 2003) (explaining the purpose of 

prejudgment interest). In Paragraph 48 of the August 14, 2014, Agreed Order – as 

incorporated into their 2019 Settlement Agreement and subsequent Agreed 

Judgment – the parties expressly agreed that the 8 percent per day rate was “a 

penalty.” Taken objectively, this default rate of interest was exactly that – a 

penalty. It was nothing more than a device to coerce appellants into prompt 

payment and strict compliance with their contractual obligations which obviously 

failed. While the law does not unequivocally forbid the allowance of certain 

contractual penalties, we find no error by the circuit court in declining to enforce 

the parties’ default-only interest rate of 2,920 percent per annum.

III. CONCLUSION

For the foregoing reasons, the orders of the Franklin Circuit Court are

affirmed with respect to both the appeal and cross-appeal.
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ALL CONCUR.

BRIEFS FOR APPELLANTS/

CROSS-APPELLEES:

Richard A. Getty

David T. Faughn

Lexington, Kentucky

Steven R. Ruby

Charleston, West Virginia

BRIEFS FOR APPELLEE/CROSSAPPELLANT KENTUCKY 

ENERGY AND ENVIRONMENT 

CABINET:

Lance C. Huffman

Leilani Martin

Lee Archer

Frankfort, Kentucky