Duncan Blair

4505 Sicard Hollow Road

Birmingham, Alabama 35242

Phone: (205) 968-7356

E-mail: duncan.b.blair@gmail.com

Jun 23, 2010

Ms. Heather Griffin

Alabama Department of Environmental Management

1400 Coliseum Blvd.

P.O. Box 301463

Montgomery, Alabama 36130-1463

Re: Compliance with Cotswold Consent Order

Dear Heather:

Enclosed with this letter is a CD. This letter is a hard copy of a file on the CD called Ltr to Heather Griffin 3.html. If you insert the CD into your computer (the CD is clean – no viruses or malware), and open the file that I just referenced, this letter will open in your internet browser, and you will be able click on all of the cross-references and “go there” just as you would on the internet. You can then return to the letter by hitting the back button on your browser.

I write this letter in order to comment on the consent order currently in effect between ADEM and Cotswold Development, Ltd. (“Cotswold”). A copy of the order is attached hereto as Consent Order.pdf. Also attached hereto is the objection that I filed on March 1, 2010, to the terms of the consent order, as proposed at that time. My objection is attached as Objection2h.html.

I have reviewed the Construction Best Management Practices Plan (“CBMPP”) filed with ADEM on April 21, 2010 (copy attached as CBMPP Filing), and have some comments and observations that I would like to make. First, a word about the timing of this letter. I was under the impression that I would hear from you when Cotswold filed its CBMPP. Given that I had heard nothing from you – and also given that priority that you and all of ADEM must be placing on the oil spill in the Gulf of Mexico – I was reluctant to call you. Instead, I recently took a look at the files posted on ADEM's website, and found a copy of the CBMPP. I say all of this in no way to place blame on you, but only to explain the timing of my letter

First, the date stamp on the CBMPP Filing is April 21, 2010. By the terms of the Consent Order, the deadline for filing the CBMPP was April 15, 2010, which means the filing was 6 days late. Thus, ADEM should assess an additional $700.00 penalty against Cotswold.

Second, section 1.6 of the CBMPP Filing states as follows:

It should be noted that both Coal Branch and the unnamed tributary of the Little Cahaba flow into the Little Cahaba River. Thus, all runoff from Cotswold's activities has been discharged into the Little Cahaba River. Pictures of the damage to the river at the confluence of Coal Branch and the Little Cahaba are attached as exhibits to Objection2h.html. You can go directly to the pictures by clicking here: Exhibit C to Ltr to Jeffco Cnty Commission. Additional pictures can be found at May 13, 2007, Damage to the Little Cahaba River. It it hard to see how the CBMPP Filing can state that there are “[n]o known impaired waters,” when there is abundant evidence of damage to the Little Cahaba.

Third, section 1.9 of the CBMPP Filing states as follows:

Exhibit B of the Letter to the Jefferson County Commission (attached to Objection2h.html, and accessible directly by clicking here: Exhibit B - Environmental Study) found that there are two species of federally protected mussels in the areas of the Little Cahaba affected by Cotswold runoff.

Fourth, paragraph F of the Consent Order requires, among other things, that Cotswold “correct all deficiencies [at the site] and offsite conveyances, including sediment removal or remediation.” Similarly, paragraph G of the Consent Order requires the QCP to certify that the requirements of section 335-6-12 of the Alabama Administrative Code have been met or exceeded at “the Facility, offsite conveyances, and affected State waters.” Section 335-6-12-.21(2)(b) similarly states that a CBMPP must provide for the “[p]roper cleanup/removal or effective stabilization of sediment deposited offsite, in the event of such an occurrence and effective remediation of sediment or other pollutant instream impacts to the maximum extent practicable.” You may recall from the record that ADEM has conducted three inspections of the Cotswold site. Each inspection has found unlawful discharges of runoff and accumulation of downstream sedimentation. Yet nothing in the CBMPP filing (or QCP certification) addresses or even acknowledges these violations. Moreover, given that all discharge points led to the Little Cahaba River, the only possible place to which the runoff could have gone was the Little Cahaba River – specifically, immediately above the spillway that is just below the confluence of Coal Branch and the Little Cahaba. See again Exhibit C to Ltr to Jeffco Cnty Commission, which was part of that objection that I filed to the proposed order. The failure of the CBMPP to address remediation of these violations means that the CBMPP fails to satisfy the requirements of the Consent Order. Thus, Cotswold should be fined $1,300.00 (in addition to the $700 mentioned above) to bring the total penalty to $12,000.00 (the maximum permitted under the terms of the Consent Order). Furthermore, ADEM should advise Cotswold that its CBMPP is insufficient, and that Cotswold must submit a plan that addresses cleanup of downstream tributaries and the Little Cahaba River itself.

I trust that this letter has been helpful. If you have any questions or require anything further, please do not hesitate to let me know.



Duncan Blair