"The Department's abject and serial failure to properly administer and enforce existing law is inexcusable and embarrassing," Fitzgerald wrote. "A summary of relevant documents reflects a pattern of official inaction and enabling of the continued use of the illegal dump."
Complaints throughout the 1970s
Throughout the 1970s, complaints to the city about open fires, strewn litter and debris were filed by the landowners, but to no avail. In 1976, the state indicated if the fires were burning and waste was not covered, it would file a lawsuit against the city in Franklin Circuit Court. However, if the landfill was covered, the state would continue to allow it to be used.
A memo in 1977 stated the landfill was officially closed and covered with 30 inches of soil and seeded with grass. The site would not likely contaminate because it was 2,000 feet from the new water intake, the state said.
In 1978, the state found that a buffer zone recommended around the area was never imposed, and the area continues to drain effluent contaminated wastewater into the proposed impoundment. Later that year, a memo from the state showed at least seven leachate (liquid materials that have leaked out of the ground) outbreaks were flowing from the old landfill over an adjacent hillside and soaking into the ground.
Nothing more was found in state records, until Pennington was notified in March 2002 by the state Department of Natural Resources and Environmental Protection Agency that no construction should occur until the boundaries of the old waste site are determined.
The state apparently cannot determine the boundary of the dump because of the lack of records, nor could it find a deed notice of the site. The city said the area is between two and three acres, and Pennington declares it's 11 or more acres.
More water samples were taken in April 2002 and indicated detection of a few metals and other compounds. Acetone, methane and phthalate were detected. Pennington was notified that the runoff would not negatively affect the quality of the water but the "sight may not have been properly capped and closed." Pennington said each time he takes water samples, the odor is a little stronger and there is more erosion in the landfill.
He wants to know what is underground before he starts construction on any other structures.
"I've decided not to build again until the landfill is located and closed," he said. "I can't do anything unless the remains of the landfill are hauled away."
The Kentucky Resources Council recommends that outbreaks of leachate be sampled again for metals and be addressed immediately to prevent any current or future drainage into the water. It also recommended that no landfill disturbance occur without the permission of the state Division of Waste Management.
City, Pennington unable to agree about closing landfill
The city asked Pennington's permission to engage in the actions to close the landfill, but he refused until certain conditions are met.
He said he would allow access if: All state regulations be met; the city holds him harmless of any liability; the leachate outbreaks are promptly resolved; that he is compensated for his monetary losses; the city takes title to the landfill and other contaminated areas; and that he is given notice before the site is accessed.
The city would not agree to the stipulations, and said it would work under state employee supervision.
"Mr. Pennington knows that the city offered to take those actions necessary to formally close the site as the state recommended," said Mayor Steve Sweeney. "He chose to attach certain conditions before allowing us to do so. We believe those conditions were unreasonable. Thus we will not close the site.
"We have made every effort to assist Mr. Pennington with his requests," the mayor said. "The fact that Mr. Pennington purchased property with an old dump is not a city issue."
However, the state said the city never had a permit to operate the landfill and it was never legally closed. The site remains an illegal "open dump" and is subject to current closure requirements.
Fitzgerald recommended filing a notice of intent to maintain an action against the city for an illegal open dump in federal court. He also said the city may be in violation of the Clean Water Act and subject to suit for discharging waste without a permit.
He also said Pennington may be liable for remediation costs if he knew about the landfill before he purchased the land.