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Investigative Report: Ponders Pond

Updated: Tuesday, December 17 2013, 02:17 PM EST

News 13 investigates an issue that involves raw sewage being dumped onto the ground and into a Madison County pond.  Even though the county's Health Department began issuing violations to the property owners over a year and a half ago, they still haven't fixed the problem.  Investigative Reporter Mike Mason explains how this happened.

We began investigating this issue more than a year after the county issued the septic violations. At that time, nothing had been done to force the owners to address them. That's when we realized this story may have more to do with the way Madison County officials handle violations affecting health and the environment.

Matthew Ponder remembers the good times his family had on their 400 acre property in the town of Marshall.  Matthew recalls, "People in the community would come fish and swim and hang out."

But those good times ended years ago and these days the Ponders only get together when they have to; in court. A bitter property dispute is one of several issues that have divided the Ponders; another is centered around this pond. Five members of the Ponder family own the property but legal documents show Matthew's uncle, Herbert, manages the five rental homes. The Health Department says raw sewage from those rentals is flowing into the family pond and onto the ground, something Herbert refuses to talk about with us. Matthew remembers when the pond was beautiful but now its essentially dead, "It was eerie feeling knowing that you ate fish out of there a month or two beforehand."

The controversy began to surface more than 2 years ago, in July of 2011. Matthew snapped photos showing hundreds of fish floating belly up, choked by an algae bloom he believes was triggered by all that raw sewage. Matthew says, "I mean it was just awful, they were washed up on the banks all around the water and it was bad."

Matthew then filed a complaint with the Madison County Health Department. He noted problems with the: "Failing septic system which had visible sewage surfacing in the water." He even drew a map for inspectors so they could see where the sewer pipes were located. Records show a Health Department inspector investigated and, on August 18th, 2011, issued a report stating: "There was no evidence of a failing septic system." Matthew says he was confused, "I took pictures and showed her the problems."

The Health Director told us they couldn't find the sewer pipes at the time because of the overgrown grass. The pond complaint seemed dead in the water until 6 months later. In March of 2012, a tenant complaint resulted in the county's Health Department going back out to the property.  Matthew says this time, the inspector found the problems, "She then finds, in violation, everything that I reported the first time."

On April 19th, 2012, the Health Department issued Notices of Violation to each of the Ponders, since they're all listed as owners. The violations stated the: "Wastewater system was not in compliance.....violations include discharging sewage to the ground and directly into the groundwater." The Health Department ordered the Ponders to stop "Discharging wastewater" immediately and "Install a proper septic system. 

The county gave them one month to comply or face legal action.  That was more than a year and a half ago, something that angers Matthew who says, "They've threatened fines and legal action before but nothing has been repaired yet."

Jan Shepard is the Director of Madison County's Health Department.  She says, "We don't have the ability to make somebody fix something." This past May, Shepard also told News 13 she sent the violations to Larry Leake, who was county attorney at that time and it was up to him to enforce them. Shepard tells us, "The attorney is paid to be our counsel and it belongs in their court to determine what course of action to take." Investigative Reporter Mike Mason then asked, "So it was up to Larry Leake to take action? Shepard replied, "It was in his court, yes." 

Leake left that job in December of 2012. We called and emailed Leake several times in May and June to find out why nothing had been done during his time as county attorney but he did not return our calls. This past June, we caught up with him in court. Leake told us, "I know nothing about it." The paperwork shows Leake was copied on each violation but he contends that's news to him saying, "I don't know anything about it."

News 13 found Leake has been Herbert Ponder's private attorney for years, even while Leake served as Madison County Attorney. In fact, after Leake left his position as county attorney he continued representing Herbert in the on-going property dispute which now includes the septic issue.

A week after News 13 told health officials Leake represented Ponder while he was county attorney; the new county attorney referred the Ponder case to a private law firm in Asheville.  Shepard says that was done to "Avoid any conflict of interest".

Then in July, the Health Department re-inspected the Ponder property, found the septic still in violation and determined there was a "Public health nuisance created by raw sewage." Matthew says this is nothing new, "The septic systems are still flowing into the pond. I wish something would be done." But nothing has. However, the county did issue new deadlines, giving the Ponders until today to clean up the waste. They have until December 13th to "Repair or install new septic systems." If they don't, the Health Department may take legal action.

Matthew hopes one day his family can enjoy their property like they did in the old days, but at this point he remains disappointed saying, "I don't think it's acceptable it's gone on as long as it has."

The county also threatened to put a lien on the Ponder's property if they don't fully comply by that December 13th deadline.  At that point it will be 19 months since the Ponders were first issued the Notices of Violation. Madison County Manager, Allen Lamberson, tells us this is only the second case in 20 years that has required legal action and the only case in Madison County that still remains unresolved.

Investigative Report: Ponders Pond

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