By: Lisa Bicknell
Five years after the public became aware of the illegal dumping of 92 loads of technologically enhanced naturally occurring radioactive material (TENORM) in Advanced Disposal’s Blue Ridge Landfill, a local citizens group, the Concerned Citizens of Estill County (CCEC), has won a significant legal victory.
The illegal dumping was first discovered in March of 2016, angering the community and resulting in lawsuits from both the Estill County Fiscal Court (still unresolved) and the aforementioned local citizens group.
The CCEC met in a Zoom meeting last week to hear an update on their lawsuit.
Mary Cromer, attorney for the Appalachian Law Center, said she originally made an Open Records request to the Cabinet for Energy and Environment on behalf of a couple of local citizens shortly after the dumping was discovered.
Cromer was given some records but not the communications between the Cabinet and the landfill, then owned by Advanced Disposal’s Blue Ridge Landfill. (The landfill has recently been purchased by Waste Management.)
When CCEC formed and Cromer agreed to represent the group, additional requests were made over a long period of time, but the Cabinet continued to deny access.
About two years ago, the landfill and the Energy and Environment Cabinet finalized a resolution for a corrective action plan to address the illegal dumping.
CCEC had some “unresolved issues” with the plan and filed a seperate suit asking for a “post-closure care fund,” in addition to the records undisclosed by the EEC. The fund would help pay for actions that could potentially need to be taken in the future to protect the public.
The lawsuit received a positive ruling in November 2017 by Judge Shepherd in Franklin Circuit Court, but the Cabinet appealed that ruling, and Cromer said “…it sat there for a year and a half.”
In May of 2020, the judge ruled that the Cabinet had “acted with conscious disregards of CCEC’s rights,” and the case was sent into mediation.
Late in 2020, the judge ruled in favor of CCEC’s request. The records were released, and $35,000 in “seed money” was awarded to the Concerned Citizens of Estill County.
Cromer said she is proud of the win, and she thinks it also sets a good precedent in regulating authority.
Cromer had been representing CCEC pro bono, but the settlement included $35,000 for legal fees as part of CCEC’s Open Records Act lawsuit against EEC.
Tom Fitzgerald, an attorney with the Kentucky Resource Council, said that under Kentucky laws, landfill operators are responsible for installing a protective cap over the landfill when they close it and monitoring the different layers of the cap for 30 years.
Given that the ½ life of the radioactive material is 1500 years, Fitzgerald explained, it needs to be monitored for much longer.
The amount of seed money was determined by looking at the annual cost of maintenance at current levels, estimated to be $16-17,000, for expenses such as maintaining an access road, maintaining positive drainage so as to not contaminate the water supply, preventing trees from growing through the cap, etc. erosion control, etc.
The money, properly invested, will help cover those costs. It is expected to be around 2074 before the money is needed.
Fitzgerald recommended that CCEC designate the Estill County Fiscal Court as a successor to the group in the event CCEC is not around to monitor the landfill in 2074 or beyond.
CCEC member Tom Bonny suggested designating the office of the county’s solid waste coordinator to do the inspections. The county could also hire a civil engineer.
If the county is willing to be CCEC’s successor, and the money is not accessed for a period of 42 months, it would be deposited into the county’s general fund.
CCEC member Nancy Farmer asked what happens if the landfill changes hands again, but CCEC already has the money, and the agreement is binding regardless of who acquires the landfill.
Fitzgerald also said that post-closure funds are something every county with a landfill should have, but Estill County is the first to have one.
In addition, he expressed his willingness to help draft a new community host agreement between the county and the landfill. He helped draft the old agreement, now expired, which, ironically, was designed to prevent the dumping of naturally occurring radioactive material (NORM).
Craig Williams, director of the Kentucky Environmental Foundation, said it would be short sighted not to have a host agreement.
Farmer said that a new agreement had been started, but it seemed to have disappeared with a previous administration’s solid waste coordinator.
Kristoffer Arnold, an attorney with Van Leeuwen Retirement and Investment Services, attended the Zoom meeting to explain some options for investing the money. He recommended investing in some stock market mutual funds and said he’d be happy to meet with CCEC to discuss options further.
Williams suggested investing in environmentally sound companies. CCEC member Pat Banks recommended asking for a regular report on the fund, so as to not lose “institutional memory.”
Tom Hart, current president of CCEC, brought the meeting to a close by suggesting the group take on new projects, perhaps cleaning up the county. He said that not only roadside trash and illegal dumps need to be cleaned up, but ordinances need to be enforced that pertain to abandoned buildings and junked cars.