Objection to Proposed Order Against Cotswold Development, Ltd.
March 1, 2010 (by hand delivery)
James E. McIndoe,
Chief of Water Division
Alabama Department of Environmental Management
PO Box 301463
Montgomery, Alabama 36l30-l463
4505 Sicard Hollow Road
Birmingham, Al 35242
Filed on Behalf of:
Table of Contents
This objection is filed pursuant to Public Notice 202, (http://www.adem.state.al.us/newsEvents/notices/jan10/1cotswald.htm). The Alabama Department of Environmental Management (ADEM) issued Public Notice 202 on January 28, 2010, establishing a 30 period for public comment on a proposed consent order between ADEM and Cotswold Development, Ltd. The 30 day period ends March 1, 2010 – the date of this filing.
The filing consists of the following:
This document, which is a printed copy of Objection2h.html (found on the accompanying Compact Disk (CD)).
A CD containing Objection2h.html in the root directory of the CD, and electronic copies of all hyperlinked documents in subdirectories. In order to view the hyperlinked documents (which have not been printed given their volume), the user should insert the CD into the CD drive of his or her computer, navigate to the drive containing the CD, and open the file called Objection2h.html. This will cause the user's Internet browser (commonly Microsoft's Internet Explorer) to open the file. The user will then be able to read the document, and all hyperlinked documents, directly from the CD as if reading the document on the Internet. The entire CD has been scanned for viruses with a reputable anti-virus program. It is free of any viruses.
Note: Every Internet browser paginates and formats web pages and html files somewhat differently. Objection2h.html falls into this category. The user may therefore see formatting or pagination differences between this printed copy of Objection2h.html and the copy that he or she is viewing on the computer display. For example, there is generally no pagination when one is viewing an html page with a web browser, which is why the table of contents above does not contain references to page numbers, but is hyperlinked instead. But when one prints out an html file, the web browser paginates the file “on the fly” while the file is printing. So if the user prints another copy of Objection2h.html, the user's web browser and printer may format and paginate the file differently than is reflected in this document. The contents of the two documents, however, will be identical.
Additional Note: Much of the source material upon which this objection is based comes from documents published on ADEM's website ( http://edocs.adem.alabama.gov/eFile/). References in this objection to the “public record” should be taken to mean the aggregate of this published material. The undersigned is further aware of ADEM's disclaimer that some of its internal documents may not be published on its website. This objection therefore adds its own disclaimer: Conclusions made herein are subject to any additional non-public information in ADEM's records.
Still Another Additional Note: Much is written here about ADEM's administrative inability or unwillingness to enforce ADEM's own requirements – to say nothing of the state's water quality laws and regulations – against Cotswold. The undersigned wishes to make it clear that he holds ADEM personnel with whom he has dealt in the highest regard. He has found them to be professional, knowledgeable, forthcoming, and genuinely willing to help, and he is grateful for the help and courtesy they have extended to him. Nothing contained in this filing should be read to qualify this in any way.
The proposed order (published on January 28, 2010) is attached as: 1cotswald.pdf. It states, in pertinent part, as follows:
ADEM inspected Cotswold's construction site on August 11, 2009, and found that Cotswold had failed to properly implement and maintain erosion and sediment controls in accordance with best management practices (BMP's), as required by ADEM regulations. ADEM also found, during that same inspection, that Cotswold had committed a water quality violation by allowing sediments and other pollutants in stormwater runoff to enter the Little Cahaba River. ADEM also found that Cotswold had allowed the un-permitted release of sediment into the Little Cahaba River.
ADEM issued a notice of violation to Cotswold on September 15, 2009.
“Considering the general nature [of the violations noted in the first bullet above], the magnitude and duration of each non-compliant discharge, their effects, if any, on impaired waters, and any available evidence of irreparable harm to the environment or threat to the public, [ADEM] determined the base penalty to be $10,000.00.”
The $10,000.00 base penalty sufficiently addresses Cotswold's failure to operate at a “standard of care . . . commensurate with the applicable regulatory requirements.”
“In consideration of [Cotswold's] history of previous violations, [ADEM] enhanced the penalty by an additional $5,000.00.”
ADEM then reduced the $15,000.00 total by $5,000.00 on the ground that the proposed order “is a negotiated settlement and, therefore, [ADEM] has compromised the amount of the penalty [it] believes is warranted in this matter in the spirit of cooperation and desire to resolve this matter amicably, without incurring the unwarranted expense of litigation.” The remaining $10,000.00 is to be paid to ADEM within 45 days from the date of the order.
Cotswold “agrees to take immediate action to prevent, to the maximum extent practicable, sediment and other pollutants in stormwater [from flowing into the Little Cahaba River].”
Cotswold “agrees that, within five days of the effective date of [the order, it] shall have a QCP perform a comprehensive inspection of [the construction site and affected state waters (i.e., the Little Cahaba River).”
Cotswold “agrees that, within ten days of the effective date of [the order, it], shall submit to [ADEM a plan] detailing effective BMPs that meet or exceed [ADEM requirements].”
Cotswold agrees “[t]hat, within thirty days of the effective date of [the order, it] shall fully implement effective BMPs, designed by a QCP, that meet or exceed [ADEM requirements], and correct all deficiencies at the [construction site] and offsite conveyances, including sediment removal or remediation.”
Cotswold “agrees that, within seven days of the completion of the activities required in [the preceding bullet, Cotswold] shall submit to [ADEM] a certification signed by the QCP stating that effective BMPs meet or exceed [ADEM requirements] have been implemented, all deficiencies have been corrected, and full compliance with [ADEM requirements] has been achieved.”
Cotswold agrees to pay a penalty fee if it misses any of the deadlines referred to in the preceding bullets in the amount of $100 per day per violation for the first 30 days, $200 per day per violation for the next 30 days, and $300 per day per violation for days after 60 – subject to a maximum late fee of $12,000.
Both Costwold and ADEM “agree that [the order] is intended to operate as a full resolution of the violations which are cited in this [order].”
ADEM should not enter into this or any other consent order with Cotswold. The severity and flagrancy of Cotswold's actions, coupled with ADEM's administrative ineffectiveness, requires that ADEM seek judicial relief to enforce the state's water quality laws. For ADEM to do anything less, under the current circumstances, would be a abnegation of its statutory obligations.
In the alternative, the proposed order should require Cotswold to pay a fine of $250,000.
The public record shows that, from no later than February 2008 to the present time, both Cotswold and its QCP contractor, SpreadRite Organics, LLC (“SpreadRite”), have shown utter disregard for, and contempt towards, ADEM, the state's laws and regulations, and the health of the Little Cahaba River. The public record further demonstrates that, to date, SpreadRite's actions have been, at best, grossly incompetent, and at worst, deliberately deceptive. Finally, the public record demonstrates that ADEM has consistently been unwilling or unable to (i) follow through with the demands that it has imposed on Cotswold, (ii) enforce the state's laws and regulations pertaining to Cotswold's activities, and (iii), protect the Little Cahaba River. The proposed order, if implemented, will change nothing. Cotswold and SpreadRite will continue to make no more than token efforts towards compliance, and ADEM will continue to accept those efforts as sufficient. This state of affairs cannot continue. The only remaining course of action, therefore, is for ADEM to file an action against Cotswold in court for the imposition of sanctions and enforcement of the state's water quality laws.
If ADEM nonetheless decides to go forward with a consent order against Cotswold, the amount of the fine should be $250,000. This equals the amount recovered by the plaintiffs in Blair v. Vestavia Hills Board of Education, CV 837-VEH (U.S. District Court for the Northern District of Alabama, January 30, 2009) approximately two and one-half years after ADEM had entered into a consent order with the Vestavia Hills Board of Education for $20,000. The size of the judicial recovery, when compared to the fine imposed by ADEM , indicates that $20,000 was a thoroughly ineffective deterrent there. If $250,000 represents anything roughly close the dollar amount of damage done to the Little Cahaba River by the construction of the Liberty Park Middle School (a project of much smaller scope than the Cotswold development), then it must also represent the minimum dollar amount of damage done to the river by Cotswold. A copy of the federal court decree is attached as FedCt Consent Decree.pdf. A copy of the consent order that ADEM entered into with the Vestavia Hills Board of Educations is attached as 27252_ALR167194_073_06-06-2007_DECO_DSS_CO-07-XXX-CMNPS.pdf.
Sometime in 2005, the Jefferson County Board of Commissioners approved Cotswold's plans for development. Several residents along the Little Cahaba River attended that meeting and attempted – unsuccessfully – to voice their concerns. As a fall-back measure, the residents along the river prepared and sent a letter to the county commissioners. The letter is attached as Letter of 11-1-06 to County.pdf. Exhibit A to the letter is attached as Exhibit A.jpg. Exhibit B to the letter is attached as Exhibit B.pdf. And Exhibit C to the letter is attached as Exhibit C.pdf.
The letter and its attachments are significant for the following purposes:
It documents, through Exhibit B, the existence of 22 species of fresh water mussels in the Little Cahaba River, two of which are federally protected. “All . . . protected mussel species require clear, flowing water and stable substrates for growth and reproduction.” Exhibit B, page 5. “Degraded tributaries . . . can profoundly affect the high-quality streams they feed into [and can] smother large portions of the stream bed and the organisms living in the substrate.” Id.
It provides compelling photographs, through Exhibit C, of damage to the river from mud and silt.
It provides evidence of the perseverance and determination of residents along the Little Cahaba River. This is not the first time that we have been required to commit significant amounts of time and money to the protection of the river. Why do we continue this fight? The best evidence we can give – short of seeing the river for oneself – is perhaps the following:
Dedicated to a river, full of moods and consolations as a woman, and sometimes wearing a veil of mist; full of light and healing; cooler than the day . . . or warmer; deeply mysterious; babbling secrets all day long; singing all night; green and darkling under the sun, holding trees upside down; at night a winding lane of light and, under the moon, silver; in whose presence children laugh and the old find their burdens gone; stretches ending in a bank of green or a wall of rock, yet always finding a way through; a small river, friendly, intimate, refreshing, renewing; picture of God’s life in the world and of His heaven hereafter; and of the spirit of man, forever coursing through the old, yet forever seeking the new, simple, majestic, unstable yet mighty, winding out from God and back again – the Little Cahaba.
Reverend Henry Edmonds, 1930.
Cotswold began clear cutting several hundred acres for 460 home lots sometime in 2006. As predicted by downstream landowners in Letter of 11-1-06 to County.pdf, the effect on the Little Cahaba River was devastating.
The following photographs, taken on May 13, 2007, show the deplorable conditions at the construction site and the severity of damage done to the river at that time: DSC_0566.JPG; DSC_0567.JPG; DSC_0568.JPG; DSC_0569.JPG; DSC_0570.JPG; DSC_0571.JPG; DSC_0572.JPG; DSC_0572.JPG; DSC_0573.JPG; DSC_0574.JPG; DSC_0575.JPG; DSC_0576.JPG; DSC_0577.JPG; DSC_0578.JPG; DSC_0579.JPG; DSC_0580.JPG; DSC_0581.JPG; DSC_0582.JPG; DSC_0583.JPG; DSC_0584.JPG; DSC_0585.JPG; DSC_0586.JPG; DSC_0587.JPG; DSC_0588.JPG; DSC_0589.JPG; DSC_0590.JPG; DSC_0591.JPG; DSC_0592.JPG; DSC_0593.JPG; DSC_0594.JPG; DSC_0596.JPG; DSC_0597.JPG; DSC_0598.JPG; DSC_0599.JPG; DSC_0600.JPG; DSC_0601.JPG.
On February 22, 2008, Amanda Farrell of ADEM conducted an inspection of the Cotswold subdivision. A copy of her report is attached as 34623_ALR16D930_073_02-22-2008_INSPR_ALF_NA.pdf.
The report was accompanied by 12 photographs, which are attached as 34623_ALR16D930_073_02-22-2008_INSPR_ALF_PHOTOS.pdf.
Several things should be noted about Ms. Farrell’s February 2, 2008, report:
The report gave six aspects of Cotswold’s compliance efforts a grade of U (unsatisfactory). The U’s covered, in significant part, “instream turbidity, instream water quality, instream treatment, [and] discharge water quality.”
The report found that “[i]mplemented BMPs were not adequate to prevent a water quality violation and sediment loss from site.”
The report found that: “Sediment basin discharge outlet did not appear to allow for adequate holding time. It did not seem to be installed according to the Alabama handbook.”
The report found that: “Silt fencing had been installed across a stream which constitutes instream treatment. BMPs should not be installed in a water of the State according to ADEM Admin. Code R. 335-6-12-.21.”
The report found that “[s]ilt fencing in other areas and inlet protection needed to be maintained.”
The report found that “[s]lopes were eroding and needed to be further stabilized.”
The report found that “[t]here was a visible contrast between upstream and downstream waters.”
The report found that: “Operator had pumped down the sediment basin releasing turbid water into the UT to Little Cahaba River. At the time of sampling the pump had been shut off.”
The report found a water quality violation as follows: “Sampling results: Upstream: 11.6 NTU Discharge: 63.6 NTU Downstream 134 Difference between up and downstream 122.4 NTU which constitutes a water quality violation.”
On March 17, 2008, ADEM sent a Notice of Violation letter to Ingram Tynes (Cotswold’s developer) along with a copy of Ms. Farrell’s report. A copy of the letter is attached as 34623_ALR16D930_073_03-17-2008_ENOV_CAG_NA.pdf.
The March 17 letter, after noting the deficiencies cited in Ms. Farrell’s inspection report, advised Cotswold (among other things):
that it must file with ADEM, “within 7 days” [emphasis in original] of receipt of the letter, a “full report [prepared by a QCP (qualified credentialed professional)] detailing the immediate and long-term corrective actions that have been and will be taken to adequately correct noted deficiency(s);”
that the report must “at a minimum” provide for “[a]n updated comprehensive construction best management practices plan (CBMPP) detailing the temporary/permanent effective structural/nonstructural BMPs to be implemented and maintained to the maximum extent practicable that meet or exceed [ADEM requirements];”
that the report must, “at a minimum” include or provide “detailed” information and plans for complying with best management practices, re-vegetation or cover of all areas left undisturbed for a period of 13 or more days, and permanent re-vegetation of all areas upon completion of the project;
that it must submit a “proposed, detailed compliance schedule, with all work to be completed no later than ten (10) days [emphasis in original] after receipt” of ADEM’s letter; and,
that it must submit a “certification” by a QCP “no later than fifteen (15) days after receipt” of the letter [emphasis in original] that “all deficiencies have been corrected and full compliance with [ADEM requirements] has been achieved.”
The letter concluded by stating (among other things) as follows [emphasis in original]:
The determination to pursue further enforcement action will be dependent on the timeliness and content your response to this letter.
It should be noted, in passing, there are striking similarities between the list of' remedial requirements in the March 17, 2008, letter and the list of' remedial requirements in proposed order (more on this later).
On April 8, 2008, Mr. Hunter Bruce of SpreadRite responded to ADEM's March 17, 2008, letter. The letter was co-signed by Ingram Tynes as the “Responsible Official.” A copy of Mr. Bruce's letter is attached as 34623_ALR16D930_073_04-08-2008_ERPL_CAG_NA.pdf.
Before examining the truthfulness or effectiveness of the specific representations that Mr. Bruce made in this letter, the following, glaring, deficiencies must be noted:
The letter was submitted 15 days late.
Mr. Bruce's bare-bones statements that “BMPs have been added to reduce sediment loss from the site,” “regular street and inlet maintenance have been implemented,” and “street sweeping had been completed the day before the inspection date” came nowhere close to providing ADEM with an “updated, comprehensive construction best management practices plan (CBMP) detailing the temporary/permanent effective structural/nonstructural BMPs to be implemented and maintained to the maximum extent practicable” to meet applicable statutory and regulatory requirements.
Nothing in SpreadRite’s letter mentioned, let alone explained, how SpreadRite intended to implement and maintain measures for (a) temporary re-vegetation of areas undisturbed for a period of 13 or more days, or (b), permanent re-vegetation of all remaining areas after completion of the project.
Nothing in SpreadRite’s letter constituted a certification that “all deficiencies have been corrected and full compliance with ADEM [requirements] has been achieved.” Nor, so far as the public record shows, was such a certification ever provided to ADEM.
In order to evaluate the specific representations that Mr. Bruce made in his April 8, 2008, letter, we need look no further than the contents of a report made from a second inspection by Amanda Farrell on May 18, 2008 – a little over one month after Mr. Bruce's letter.
On May 15, 2008, Amanda Farrell conducted a second inspection of the Cotswold site. Her report concluded, among other things, that the amount of mud and silt being carried into the Little Cahaba River was approximately 4 and ½ times higher than when she conducted her first inspection. The situation at the construction site had not only failed to improve; it had gotten exponentially worse.
A copy of Ms. Farrell's second report is attached as 34623_ALR16D930_073_05-15-2008_INSPR_ALF_NA.pdf. A copy of the photographs that accompanied her report are attached as 34623_ALR16D930_073_05-15-2008_INSPR_ALF_PHOTOS.pdf
It is clear from Ms. Farrell’s May 15, 2008, inspection report that every single step that SpreadRite took or said that it was taking in its April 8, 2008, letter was completely ineffective to prevent or even retard the damage being done to the Little Cahaba River. More specifically,
SpreadRite asserted in its April 8 letter that “BMP’s have been added to reduce sediment loss from the site.” The letter continued, “[i]n addition, regular street and inlet maintenance have been implemented and street sweeping had been completed the day before the inspection date.” But Ms. Farrell’s May 15 report found that “[i]mplemented BMPs were not adequate to prevent turbid water from being discharged in the UT to Little Cahaba River.” The May 15 report also found that: “Turbid water was flowing off of lots underneath filterexx soxx. They did not appear to be effectively filtering turbid water.” And later in the report: “A visible contrast between up and downstream waters was noted.”
SpreadRite asserted in its April 8 letter that “[s]ediment basin discharge outlet has been restructured to allow for adequate holding time [and the] concrete riser pipe has been modified to increase holding capacity of the pond.” But Ms. Farrell’s May 15 report found that “[s]ediment basin did not appear to allow for adequate holding time or may not be of adequate size for the drainage area.” Photograph 7 provided clear visual evidence to support this finding.
SpreadRite asserted in its April 8 letter that “[s]ilt fencing has been removed from across the stream.” But Ms. Farrell’s May 15 report found that “[s]ilt fencing had been improperly installed across a stream.” Photograph 6 provided clear visual evidence to support this finding.
SpreadRite asserted in its April 8 letter that “[s]lopes have been further stabilized with hydromulching.” But Ms. Farrell’s May 15 report found that “[a]reas that had been seeded and/or mulched needed to be maintained [and that] turbid water was flowing off of disturbed areas down to the storm drains [and that there was] onsite erosion and sedimentation.” Photographs 2 and 3 provided compelling visual support for this finding.
SpreadRite asserted in its April 8 letter that “[s]ediment traps for pumping have been elongated to allow for greater capacity for sediment removal, [and that] sediment traps are being maintained between pumping by replacing the jute netting, floc logs, and adding flocculent as needed.” But Ms. Farrell’s May 15 report found that at “sediment basin – pump was not on at time of inspection.” Photograph 4 provided clear visual support for this finding.
SpreadRite asserted in its April 8 letter that “[w]e will continue to monitor water quality and provide the best methods for each situation.” Putting aside the question of what this statement is really supposed to mean, Ms.. Farrell’s report found, as noted earlier, that conditions had gotten worse (far worse) at the construction site, not better. To quote the report: “Water Sample Analysis: Upstream: 35.3 NTU; Discharge: 328 NTU; Downstream: 592 NTU. The difference of 556.7 NTU constitutes a water quality violation.”
As to this last point, recall that in February of 2008, the NTU difference was 122.4. In May 2008, the NTU difference was 556.7. This represents an increase of more than 450%, within a little more than 30 days after Mr. Bruce had written ADEM to say, in effect, “don't worry – we have everything under control.”
Finally, it is worth noting in passing that the number of compliance areas in which Cotswold received a grade of U in May 2008 remained at 6 – the same number of U’s that it received in February 2008..
Given the 180 degree contrast between SpreadRite’s written assertions and Ms. Farrell’s May 15 inspection report, it is difficult to see how SpreadRite emerges from all of this with any credibility whatsoever. Nothing – not one thing – that SpreadRite said in its April 8 letter was supported by Ms. Farrell’s May 15 inspection report. To the contrary, Ms. Farrell’s report completely undermined and disproved each and every assertion that SpreadRite made in its letter. At best, one can view this as gross incompetence on SpreadRite's part. At worst, one is tempted to view Mr. Bruce's April 8, 2008, letter as deliberately evasive or deceptive.
From the public record, it appears that ADEM took no action as a result of Ms. Farrell's May 15, 2008, inspection report. Although there is no direct evidence of this, the public record contains a good clue. The clue can be found in a letter that Hunter Bruce sent to ADEM on November 25, 2009 (see November 25, 2009, Letter from Hunter Bruce of SpreadRite to ADEM below). In that letter, Mr. Bruce referred to his April 8, 2008, letter in a manner consistent with the hypothesis that there had been no correspondence between himself and ADEM during the gap period. The reference is as follows:
The outlet structures in the ponds have been modified to allow for only emergency overflow (letter dated 4/8/08 – Sediment basin discharge outlet has been restructured to allow for adequate holding time. The concrete riser pipe has been modified to increase holding capacity of he pool.)
[emphasis in original; typographical errors corrected]
Since Amanda Farrell's May 15, 2008, inspection report found, among other things, that “[s]ediment basin did not appear to allow for adequate holding time or may not be of adequate size for the drainage area,” and since (according to Mr. Bruce), the concrete riser pipe had been modified in April 2008 to prevent any sediment loss, it seems reasonable to conclude that no one from ADEM ever presented Cotswold with the findings from Ms. Farrell's May 15, 2008, inspection report. Or, if someone did, Mr. Bruce never responded. In either event, the May 15, 2008, report was completely ignored.
Admittedly, this conclusion rests upon educated guesswork. But looking at the same question from the other direction, there is nothing in the public record to suggest any enforcement activity by ADEM during this gap period, which is certainly consistent with conditions (1) that we documented ourselves at the construction site during that time, and (2), that we experienced downstream on the Little Cahaba River during that time.
What follows are collections of photographs taken during the summer of 2009 at the construction site and downstream from the site on the Little Cahaba River. They show continuing water quality violations at the construction site and ongoing damage to the Little Cahaba River.
silt 7 12 09.JPG; silt 7 12 09 (1).JPG; silt 7 12 09 (2).JPG; silt 7 12 09 (3).JPG; silt 7 12 09 (4).JPG; silt 7 12 09 (5).JPG; silt 7 12 09 (6).JPG; silt 7 12 09 (10).JPG; silt 7 12 09 (11).JPG; silt 7 12 09 (12).JPG; silt 7 12 09 (13).JPG; silt 7 12 09 (14).JPG; silt 7 12 09 (15).JPG; silt 7 12 09 (16).JPG; silt 7 12 09 (17).JPG; silt 7 12 09 (18).JPG; silt 7 12 09 (19).JPG; silt 7 12 09 (20).JPG; silt 7 12 09 (21).JPG; silt 7 12 09 (22).JPG
IMG_1714.JPG; IMG_1715.JPG; IMG_1716.JPG; IMG_1717.JPG; IMG_1718.JPG; IMG_1719.JPG; IMG_1720.JPG; IMG_1721.JPG; IMG_1722.JPG; IMG_1723.JPG; IMG_1724.JPG; IMG_1725.JPG; IMG_1726.JPG; IMG_1727.JPG.
IMG_1734.JPG; IMG_1735.JPG; IMG_1736.JPG; IMG_1737.JPG; IMG_1738.JPG; IMG_1739.JPG; IMG_1740.JPG; IMG_1741.JPG; IMG_1742.JPG; IMG_1743.JPG; IMG_1744.JPG; IMG_1745.JPG.
On August 11, 2009, Tammie Petty of ADEM conducted an inspection of the Cotswold site. Her report is attached as: 34623_ALR16D930_073_08-11-2009_INSPR_TRP_NA.pdf (beginning on page 2 of the file). The photographs accompanying her report are attached as: 34623_ALR16D930_073_08-11-2009_INSPR_TP_PHOTOS.pdf. This inspection report is the only one cited in ADEM's proposed order.
What is so discouraging about Ms. Petty's report is that it cites Cotswold for many of the same violations that existed in February and May of 2008. For example, page 3 of the report reads, in part, as follows:
“On-site erosion and sedimentation were observed. There was sediment build-up in a UT to the Little Cahaba River. Stormwater inlet protection needed maintenance.” In support of this finding, Ms. Petty cited photographs 5, 6, 8, 21, and 23.
“There was on-site sedimentation measuring approximately 6' wide X 20' long X 7” deep to 6' wide X 5' long X 5” deep.” In support of this finding, Ms. Petty cited photographs 8 and 22.
“On-site erosion measuring approximately 6” to 3' wide X 25' long X 2' [note: this is not a typo; the report says 2 feet] deep was observed.” In support of this finding, Ms. Petty cited photograph 21.
“Instream sediment accumulation measuring approximately 1' wide X 5' long X 10” deep was observed. In support of this finding, Ms. Petty cited photographs 23 and 24.
These are not trivial findings. Recall Ms. Farrell's findings from February 2008 (“BMPs were not adequate to prevent . . . sediment loss from the site”; “silt fencing . . . and inlet protection needed to be maintained”; and, “slopes were eroding and needed to be further stabilized.”) Or recall Ms. Farrell's findings from May 2008 (“areas that had been seeded and/or mulched needed to be maintained”; and “inspector noted onsite erosion and sedimentation.”) It is not a stretch to say that the only reason Ms. Petty did not find a water quality violation is that she conducted her inspection when the ground was dry. Clearly, the sedimentation that she documented and recorded in her photographs had to go somewhere during the next heavy rain event – and that “somewhere” was the Little Cahaba River.
On September 15, 2009, ADEM sent a Notice of Violation letter to Ingram Tynes. The letter is attached as 34623_ALR16D930_073_09-15-2009_ENOV_BLB_NA.pdf. The letter cites Cotswold for the following violations:
“Appropriate, effective Best Management Practices (BMPs) for the control of pollutants in stormwater run-off have not been fully implemented and regularly maintained . . . .”
“Accumulations of sediment were observed offsite and in State waters downgradient/downstream of stormwater discharge outlets at the facility.”
The letter required Cotswold to submit a written report prepared by a QCP “showing the steps that have been taken to correct these violations.” The letter gave Cotswold 15 days within which it was required to submit the report.
Nearly two and one-half months later, Hunter Bruce of SpreadRite submitted his “report” to ADEM of the steps that had been taken to correct the violations. A copy of Mr. Bruce's report is attached as 34623_ALR16D930_073_12-03-2009_ERPL_BLB_NA.pdf. It is a two page letter (also co-signed by Ingram Tynes as the “Responsible Official”) that Mr. Bruce threw together with little thought or effort. The most glaring indicators of Mr. Bruce's carelessness are the following:
The letter contains 10 typographical or syntax errors. (“As a follow-up response to the attached referenced Notice of Violation for The Cotswold’s [sic], we submit this letter certifying that measurments [sic] have been taken to correct deficiencies noted by the Violation Notice from ADEM.”) That's one and two. (“The active condtruction [sic] on Amberly Drive.”) Three. (“I confirm the run-off is very clean and s [sic] draining . . . .) Four. (“We received over 10 inches of rain . . . which ultimately overwhelmed the closed storm drain system and the storwater [sic] overtopped the curb and washed a gully into [sic] the adjacent slope.”) Five and six. (“This repair was a major undertaking under taking [sic] due to . . . “) Seven. (“I am appreciative with [sic] the amount of time, energy, and money that Cotswold . . . has put towards stormwater quality.”) Eight. (“We would like an on-site visit . . . to discuss over [sic] several items.”) Nine. (“SpreadRite Organics, LLC appreciated our [sic] involvement in this situation.”) Ten.
Mr. Bruce copies and pastes the following language from his April 8, 2008, letter, into his November 25, 2009, letter, hoping – perhaps – that what was untrue over a year ago can be made true today by repeating it verbatim. The cut and paste job consists of the following language: “BMP's have been added to reduce sediment loss from site. In addition, regular street and inlet maintenance has been implemented and street sweeping . . . .”
Putting aside Mr. Bruce's sloppiness, it is hard to see how his November 2009 letter adds anything of substance to his April 2008 letter. Or to state the same point somewhat differently, the November 2009 letter contains little to no information about the steps that he and Cotswold had taken or planned to take to correct the violations noted in Tammie Petty's August 2009 inspection report. Specifically.
Mr. Bruce stated in his November 2009 letter that “BMP's have
been added to reduce sediment loss from the site.” But this
is what he also said in April 2008. In fact, as noted earlier, this
sentence is just a cut and paste from the older letter to the newer
one. How does that address the steps that Cotswold took to correct
the violations noted in Tammie Petty's August 2009 report?
Mr. Bruce stated in his November 2009 letter that “ regular street and inlet maintenance has been implemented and street sweeping have been ongoing.” But this too is what Mr. Bruce said in April 2008 (again, he just copied and pasted from the older letter into the newer one). But how does regular inlet maintenance and street sweeping (assuming that it happened) address the steps that Cotswold took to correct the violations noted in Tammie Petty's August 2009 report?
Mr. Bruce referred to the removal of several curb inlet protection devices that had caused erosion problems following heavy rains. This is – one must acknowledge – new information. But how does it address the steps that Cotswold took to correct the violations noted in Tammie Petty's August 2009 report? Curb inlet devices may have contributed to the accumulation of sediment, but how does removal of several curb inlet devices do anything to address the violations she found in her report?
Mr. Bruce acknowledged new sediment loss when he referred to 10 inches of rain over a four day period. This sediment was removed “as best as possible by hand.” But Mr. Bruce submitted no photographs to show the results of his work. One also must wonder about the removal of sediment “by hand.” Ms. Petty's report finds significant amounts of on-site erosion and build up of sediment as well as accumulation of sediment in a tributary leading to the Little Cahaba. Perhaps it is a “best management practice” to remove downstream sediment build-up by hand, but if one is just shoveling sediment out of a stream – putting to one side whether such an approach is even feasible for the effective removal sediment – then the question arises whether the sediment, once removed, was carried by hand to an area of the subdivision not subject to erosion, and then seeded. Mr. Bruce does not say, and all we can do is guess.
Mr. Bruce asserted that “[d]uring rain events, I have monitored the stormwater run-off in these areas and confirm the run-off is very clean and is [typographical error corrected by the undersigned] draining directly into the containment ponds and not into a stream.” This statement is – to be honest – laughable.
To ADEM's credit, Public Notice 202 was presumably issued because Mr. Bruce's November 25, 2009, letter fell far short of what the department was asking for.
Because of Mr. Bruce's utter lack of credibility – both before and after the November 2009 letter – the undersigned took photographs on January 24, 2010, at the Cotswold site following a heavy, but not at all unusual, rainfall.
The photographs are attached as follows: P1030024.jpg; P1030025.jpg; P1030027.jpg; P1030028.jpg; P1030031.jpg; P1030032.jpg; P1030034.jpg; P1030037.jpg; P1030038.jpg; P1030039.jpg; P1030040.jpg; P1030041.jpg; P1030042.jpg; P1030043.jpg; P1030044.jpg; P1030046.jpg; P1030048.jpg; P1030049.jpg; P1030050.jpg; P1030052.jpg.
The photographs show – contrary to Mr. Bruce's representations – that turbid water was and is running off of the building site and into streams or creeks that feed into the Little Cahaba River. The photographs also show ineffective installations of “Filterexx Soxx” retainers (i.e., the long bright green bags filled with wood chips and mulch).
Thus, we are brought back, full circle, to ADEM's proposed order.
At the outset, it should be noted that there is little or no substantive difference between the corrective actions that ADEM required Cotswold to take in its March 17, 2008, letter, and the corrective actions that ADEM will be requiring Cotswold to take if the proposed order goes into effect. Specifically:
The proposed order states that Cotswold will “within five days of the effective date of [the order] have a QCP perform a comprehensive inspection of [the construction site and affected state waters (i.e., the Little Cahaba River).” But ADEM's March 17, 2008, letter already required Cotswold “within 7 days” [emphasis in original] of receipt of the letter, [to submit] a full report [prepared by a QCP] detailing the immediate and long-term corrective actions that have been and will be taken to adequately correct noted deficiency(s).”
The proposed order states that Cotswold will “within ten days of the effective date of [the order submit to [ADEM a plan] detailing effective BMPs that meet or exceed [ADEM requirements].” But ADEM's March 17, 2008, letter already required that Cotswold's report must “at a minimum” provide for “[a]n updated comprehensive construction best management practices plan (CBMPP) detailing the temporary/permanent effective structural/nonstructural BMPs to be implemented and maintained to the maximum extent practicable that meet or exceed [ADEM requirements].”
The proposed order states that Cotswold will “within thirty days of the effective date of [the order] fully implement effective BMPs, designed by a QCP, that meet or exceed [ADEM requirements], and correct all deficiencies at the [construction site] and offsite conveyances, including sediment removal or remediation.” But ADEM's March 17, 2008, letter already required Cotswold to correct all deficiencies “no later than ten (10) days [emphasis in original]” following Cotswold's receipt of the letter.
The proposed order states “within seven days of the completion of [remedial activities] Cotswold must submit a “certification signed by the QCP stating that effective BMPs meet or exceed [ADEM requirements] have been implemented, all deficiencies have been corrected, and full compliance with [ADEM requirements] has been achieved.” But ADEM's March 17, 2008, letter already required Cotswold to submit a “certification” by a QCP “no later than fifteen (15) days after receipt” of the letter [emphasis in original] that “all deficiencies have been corrected and full compliance with [ADEM requirements] has been achieved.”
Manifestly, had Cotswold complied with the ADEM directives in 2008, or – in the absence of voluntary compliance – had ADEM enforced the terms of its March 17, 2008, letter, we would not be where we are today. There would be no need for a proposed order.
More importantly, though, there is nothing in the public record to support to the conclusion that things will be different this time around: that SpreadRite will magically begin producing reports and certifications with the detail and specificity required by ADEM (assuming SpreadRite is even capable of doing so), or that ADEM will now insist that Cotswold comply, in full, with ADEM requirements, or, in the absence of such compliance, vigorously enforce the state's laws and regulations against Cotswold. There have been many opportunities over the last two years for Cotswold, SpreadRite, and ADEM to show that they are able or willing to act in accordance with the high standards imposed on them by law. At every juncture, they have failed the test.
The following are the reasons why ADEM should decline to enter into the proposed order with Cotswold, and should, instead, initiate a court action against Cotswold for violation of federal and state water quality and permitting requirements:
The public record conclusively demonstrates that ADEM cannot be trusted, through its own administrative resources, to protect the Little Cahaba River. ADEM has known from the very beginning what Cotswold must do in order to comply with the state's water quality laws and regulations, but has lacked the resources or will, or both, to enforce these laws and regulations. Instead, ADEM has permitted Cotswold and its QCP, SpreadRite, to get by with token compliance efforts (if even that). The terms of the proposed order reinforce this conclusion. The corrective actions specified in the proposed order are, in substance, identical to the corrective actions that ADEM imposed on Cotswold in March 2008. There is no basis upon which to conclude that the effectiveness of Cotswold's corrective actions (again, if any) will be any better now than they have been to date. Furthermore, the proposed fine ($10,000) is so small in comparison to the level of damage done the the Little Cahaba and the brazenness of Cotswold's non-compliance, that Cotswold will view the fine as little more than a routine cost of doing business.
As a side note, SpreadRite should be stripped of its status as a QCP. SpreadRite and Hunter Bruce have been allowed to operated at a level that can, at best, be described as grossly incompetent, and at worst, as deliberately deceptive. SpreadRite's written “reports” and “certifications” reflect an embarrassing low regard for detail and quality. And the continued violations found by ADEM over the last two years, in addition to violations documented through photographs taken by the undersigned and others who live along the Little Cahaba River, reflect the virtually complete ineffectiveness of SpreadRite's erosion control measures.
Cotswold has operated for the last three years with complete disregard for the health of the Little Cahaba River and the state's water quality laws and regulations.
The following are the reasons why the amount of the fine should be increased to $250,000 if ADEM nonetheless decides to go forward with a proposed order:
As just noted, Cotswold will view a fine of $10,000 as little more than a routine cost of doing business. As also just noted, the $10,000 is grossly inadequate in relationship to (i) Cotswold's unmitigated disregard for ADEM requirements and the state's water quality laws and regulations, and (ii), the level of damage done to the Little Cahaba River. In short, $10,000 comes nowhere close to being an adequate sanction for the wrongs that have occurred here.
The proceedings against the Vestavia Hills Board of Education arising out of the construction of the Liberty Park Middle School provide ample precedent to support this conclusion. There, ADEM entered into a consent order with the Vestavia school board assessing a $20,000 fine, and requiring corrective action substantially identical to the corrective actions contained in the proposed order against Cotswold. The consent order against the Vestavia school board is attached as 27252_ALR167194_073_06-06-2007_DECO_DSS_CO-07-XXX-CMNPS.pdf. When the injured parties went to federal court for relief, however, they recovered $250,000 as a result of the Vestavia school board's water quality violations (see FedCt Consent Decree.pdf). Given that the scope of the Liberty Park Middle School construction project was on a much smaller scale than the Cotswold subdivision, and resulted in less damage to the river, any consent order that ADEM enters into with Cotswold should impose a fine of no less than $250,000.
Respectfully submitted on this the 1st day of March, 2010