What it means to “maintain” a waste site in Kentucky: A Case Comment on Astro, Inc. v. Environmental and Public Protection Cabinet

Former Articles Editor Rebekah Frazier wrote this comment appearing in JNREL Vol. 22 No. 2. This abstract was written by staff member Tara Hester.

Illegal dumping is a serious problem, and many states, including Kentucky, have enacted legislation to promote the cleanup of hazardous waste sites. KRS §§224.40-305 requires a person to obtain a permit in order to "establish, construct, operate [or] maintain a waste site." In Astro, Inc. v. Environmental and Public Protection Cabinet, the Kentucky Court of Appeals addressed what it means to "maintain" a waste site within the meaning of the statute. Astro, Inc. bought the property in question knowing that it contained a large amount of construction/demolition debris (waste), and then added it's own waste to the existing pile Astro did not have a permit as required by KRS §§224.40-305 to add additional waste to the pre-existing pile and was served with several violations pursuant to the statute.

The Secretary of the Environmental and Public Protection Cabinet (EEPC) found that Astro had maintained a waste site without a permit, and stated that Astro did not have a defense because Astro failed to remove the waste it added to the pile, and thus maintained the site. Astro's main contention on appeal was that although they may be liable for the items they added to the pile, they are not responsible for the pre-existing debris. The court found that Astro maintained a waste site on its' property because Astro placed more debris in the waste site and failed to prevent others from doing the same.

The Astro decision is in line with other state court's interpretations of similar statutes. In Vermont, a defendant stacked piles of chicken manure on his farm to harass his neighbors, under the guise that he was using the manure as fertilizer. In Vermont, as in Kentucky, a permit is required to store solid waste such as chicken manure, and the defendant was found to be in violation of the statute. The Kentucky decision is in line with the Vermont decision because both courts upheld the requirement of a permit for waste disposal sites. In addition to Vermont, Maryland courts have also interpreted waste disposal statutes to reflect the need for permits. In a Maryland case, the defendants were held to be in violation of a Maryland statute for operating a landfill on their property without a permit. Even though the defendants stated they were only accepting the waste to create additional flatland that they could use as pasture land, the Maryland court, much like the Vermont and Kentucky courts, held that because the defendants did not have a permit, they were in violation of the Maryland law.

Although the court in Astro limited it's holding to a specific fact pattern, the Astro decision could be applied to determine how a Kentucky court would rule in a situation where a defendant purchased a piece of property with pre-existing waste but did not contribute any additional waste to the site and prevented others from doing so as well. A Massachusetts case ruled that a landowner is liable for maintaining a waste site if they "keep or sustain" the facility. This suggests that Kentucky landowners must take measures to get rid of the waste site to avoid liability. Additionally, a New York case held that landowners, who allow pre-existing waste to remain on their property, even though they have not contributed any additional waste, are liable for a "continuous" violation. It seems the Kentucky courts would be unsympathetic to landowners who buy property with pre-existing waste. However, because KRS §§224.43-020 provides a defense landowners if they are not the generators of the waste and are not disposing or letting others dispose of waste on their property, landowners with pre-existing waste sites may be able to avoid liability in limited circumstances. Ultimately, it is important to remember when buying property in Kentucky with pre-existing waste, one should be careful not to add to the waste or let others add to the waste to prevent liability.