ADEM Construction General Permit, Admin. Code Chapter 335-6-12

January 27, 2010

Glenda L. Dean, Chief, NPDES Permit Branch, Water Division
Lynn Broadway, Chief, Office of Water Services
Alabama Department of Environmental Management
P.O. Box 301463
1400 Coliseum Boulevard
Montgomery, AL 36110

Thomas McGill, Chief, Stormwater and Non-point Source Section
Michael Mitchell, Stormwater and Non-point Source Section
U.S. Environmental Protection Agency, Region 4
61 Forsyth Street, S.W.
Atlanta, GA 30303

Via U.S. Mail and Electronic Mail: mitchell.michael@epa.gov, gld@adem.state.al.us, and h2omail@adem.state.al.us

Re: Alabama Construction General Permit, ADEM Administrative Code, Chapter 335-6-12

Dear Ms. Dean, Ms. Broadway, Mr. McGill and Mr. Mitchell:

The Cahaba River Society, the Mobile Baykeeper, the Choctawhatchee Riverkeeper, the Southern Environmental Law Center, River Network, the Alabama Rivers Alliance, the Cahaba Riverkeeper, and the Black Warrior Riverkeeper present the following comments in response to ADEM Public Notice 202 – dated December 29, 2009 and partially entitled “Determination to Initiate Rulemaking Relative to ADEM Administrative Code Chapter 335-6-12.”

We are pleased that ADEM has finally decided to revise the Construction General Permit which it promulgated in Chapter 335-6-12 on January 23, 2003 (hereinafter referred to as “the CGP”). Because the Clean Water Act (“CWA”) and federal regulations require the revision of construction general permits every five years, this revision is needed.
 

Several of the groups listed above sent ADEM a comment letter on the CGP on January 31, 2009. That letter is attached to and incorporated into this letter. That letter provides detailed comments on the many ways that the CGP needs to change in order to conform to federal requirements. These needed changes include 1) the adoption of provisions requiring low-impact development stormwater management measures that will reduce post-construction impacts, 2) much improved reporting and enforcement procedures necessary to ensure better compliance, 3) requirements for better and more frequent monitoring, 4) improvements to the Alabama Handbook, and 5) miscellaneous other changes that will make CGP requirements more clear and more effective.

Our additional comments below address 1) the most effective manner in which ADEM may revise the CGP, 2) the manner in which ADEM should incorporate into the CGP the new federal effluent limitation regulations found at 40 CFR part 450 (hereinafter referred to as “the federal C&D rule”), and 3) the manner in which the CGP should acknowledge and reinforce local stormwater obligations promulgated under federal Clean Water Act MS4 Phase I and Phase II permits.

I. The CGP Should be Issued as a General Permit rather than as a Permit-by-Rule, and It should Contain “Reopener” Clauses to Allow Modifications following Major Stormwater Regulations that EPA plans to issue in 2011 and 2012.

We understand that ADEM is considering eliminating Alabama Administrative Code Chapter 335-6-12 and instead revising the current CGP through a general permit process. We encourage ADEM to revise the CGP through a general permit process for the following reasons:

First, we believe a general permit is preferable because it will be easier to modify than a permit-by-rule. EPA plans to revise substantially its own stormwater requirements in the coming years – both through promulgating its own CGP in 2011 and through other federal stormwater regulations to be finalized by November 2012. See http://www.epa.gov/npdes/regulations/fedreg_swmanagement.pdf in which EPA seeks stakeholder input for its proposed “national rulemaking to establish a program to reduce stormwater discharges from new development and redevelopment and make other regulatory improvements to strengthen its stormwater program.”

Given these coming regulations, ADEM’s federally-imposed stormwater management obligations may increase substantially within the next two years. The additional EPA rules and model CGP are expected to address stormwater management practices that will be essential to improving the water quality of Alabama’s impaired streams. These should be applied in Alabama in the short term, rather than after another 5 or more years has elapsed.

For this reason, we not only ask that the Alabama CGP revision be accomplished as a more easily modified general permit, we also ask that the CGP contain specific “reopener” clauses that will specify a modification process to be followed when EPA issues 1) its own CGP, and 2) the national stormwater rules referred to in the federal register notice above. These “reopener” clauses should allow for full public participation.
 

Secondly, as we noted in our attached letter dated January 31, 2009, the current Alabama CGP requires very substantial revision. Rather than trying to revise a permit-by-rule that is already heavily flawed, we believe that promulgating a new general permit will be more efficient for ADEM, as well as more effective for the restoration and protection of Alabama waters.

Finally, we note that most states issue their CGP as a general permit rather than as a permit-by-rule. Those states have found the general permit process to be preferable for the purposes of meeting their CWA obligations and we suggest that ADEM follow their example.
 

II The CGP Should Contain Stronger NTU Requirements than those Promulgated in the Federal C & D Rule.

A. The CGP Should Contain NTU Requirements Lower than 280 for Most Alabama Construction Sites.

The federal C & D rule establishes a daily maximum numeric effluent limit of 280 NTU for all construction sites greater than 10 acres, either contiguously or cumulatively. 40 C.F.R. 450.22(a)(1). Because Alabama building firms have demonstrated that they can meet a limit lower than 280 NTU using passive stormwater best management practices, and because lower limits are necessary to protect Alabama waters, we believe that the Alabama CGP should set stronger NTU requirements than those promulgated in the federal C & D rule.

The authors of this letter are aware of several large Alabama construction sites involving heavy clay soils and steep topography that have successfully managed construction stormwater run-off to achieve numeric effluent limits that are substantially lower than 280 NTU. These lower NTUs have been accomplished through employment of a complete set of passive best management practices including site design and planning, good drainage, project phasing, effective use of mulch and vegetation, and sediment controls including well-designed sedimentation ponds.

The Shops of Grand River outlet mall, under construction in Leeds, Alabama by Daniel Corporation, represents the challenging conditions in Alabama for sediment and erosion control. This is a very large construction site with fine clay soils, surrounded closely on 3 sides by the Cahaba River and a tributary, with steep topography that has required substantial mass grading. Construction was occurring during the record heavy rainfall period in summer through winter 2009. The passive stormwater treatment train, designed by Schoel Engineers with sediment and erosion control by SpreadRite Organics, has generally achieved excellent results. In December the Cahaba River Society observed a portion of the system. The outfall of the main stormwater detention and settling pond exited the pond at 1100 NTU, traveled through a long trench layered with hay, jute mat, and polyacrylamide powder, and exited this treatment at 50 NTU, the discharge level at the receiving stream. According to the contractor, these are the monitored results generally achieved by this process at this site.
 

Another site called The Edge in Troy, Alabama was on a very steep slope with difficult clay soils. Initially, this site had inadequate erosion and sediment control leading to discharge from the site with a turbidity of about 9000 NTU. Subsequently the drainage system was corrected directing runoff to a number of drop inlets protected by silt-saver devices and vegetative cover was established. Despite a poorly designed (or constructed) sedimentation pond, the upstream turbidity after these treatments was around 90 NTU and the downstream turbidity was around 110 NTU.

The contractors on the projects above have demonstrated that it is both practicable and feasible to achieve a numeric effluent limit that is substantially lower than 280 NTU. If the CGP contains a higher effluent limit than these contractors have established as practicable and feasible, then it will effectively be lowering rather than raising the bar regarding stormwater effluent that may be released from Alabama construction sites. The contractors who are already achieving an NTU much lower than 280 won’t be required to do as much as they are currently, while Alabama contractors who have been slow to develop more effective construction stormwater management practices will have no incentive to reduce their stormwater impacts to the maximum extent practicable and feasible.

At a minimum, 280 NTU should be treated as just an interim maximum while ADEM investigates establishing lower effluent turbidity limits for specific watersheds or types of sites. For example, ADEM could establish a set of effluent limits based upon soil types, R factor and site characteristics including site slope and size.

B. The CGP Should Contain NTU Requirements Much Lower than 280 for Alabama Waters that are Impaired or are not Meeting their Designated Uses.

Alabama has many waters that are impaired (those either included on the 303(d) list or for which TMDLs have been developed) or are otherwise not meeting their designated uses as required under the CWA. 40CFR130.7(b)(1-3). A 280 NTU effluent limitation should be prohibited where it is likely to cause further harm to these waters rather than improving their condition as required under the CWA and by adopted TMDL’s. 40CFR122.4(i).

For this reason, we believe that the CGP should provide special protections for these types of waters. Protecting these waters could be achieved through one of two ways.

First, the CGP could simply require individual permits for any construction sites draining to impaired waters, those with TMDL’s, or those that are not meeting their designated uses. 40CFR122.28(b)(3). The appropriate NTU limit necessary to achieve water quality restoration would be determined at that time. Alternatively, the CGP could establish a significantly lower NTU limitation that must be met by all general permittees whose sites drain to these identified waters, with that lower NTU limitation to remain in effect until ADEM, EPA or local jurisdictions establish watershed-based limitations for each relevant stream or waterbody.
 

In “Urban Stormwater Management in the United States,” a report commissioned by EPA in 2008, the National Academy of Sciences recommended watershed-based permitting as an effective way to halt or reverse damage to waterbodies from stormwater runoff. We encourage ADEM to explore ways to implement this alternative both through the CGP and through future regulation.

III The CGP should Explicitly Recognize that Phase I and Phase II Jurisdictions may Impose Additional Stormwater Management Obligations upon Construction Site Operators and should Contain Provisions that Reinforce those MS4 Requirements.

This year, ADEM will be finalizing new MS4 permits for Phase I and Phase II communities. Those permits will contain enhanced requirements for local government stormwater regulation, monitoring and enforcement. The CGP should reinforce this shift to local regulation by requiring construction site operators to demonstrate that they have complied with any relevant MS4 regulations before they may commence construction under a CGP permit. For example, the CGP should require that construction site operators submit a statement of compliance with local regulations or a locally-issued stormwater management permit when they submit their Notice of Registration (“NOR”) and Construction Best Management Practices Plan (“CBMPP).
 

Thank you for moving ahead with the CGP revision and for your attention to these initial comments. We look forward to working with ADEM to establish a CGP that will protect Alabama waters from construction site stormwater runoff. In particular, we are interested in working with ADEM, EPA and stormwater engineers to identify fully protective, achievable NTU limits for Alabama.

Sincerely, 

ADEM Draft Phase II MS4 General Permit

February 9, 2010

Glenda L. Dean, Chief
NPDES Permit Branch, Water Division
Russell A. Kelly, Chief
Permits and Services Division
Alabama Department of Environmental Management
P.O. Box 301463
Montgomery, AL 36130-1463

Thomas McGill, Chief, Stormwater and Non-point Source Section
Michael Mitchell, Stormwater and Non-point Source Section
U.S. Environmental Protection Agency, Region 4
61 Forsyth Street, S.W.
Atlanta, GA 30303

Via U.S. Mail and Electronic Mail: mitchell.michael@epa.gov and gld@adem.state.al.us

Re: Draft Phase II MS4 General Permit issued for public comment on January 14, 2010
ADEM Public Notice 605

Dear Ms. Dean, Mr. Kelly, Mr. McGill and Mr. Mitchell:

The Cahaba River Society (“CRS”), the Southern Environmental Law Center ("SELC"), the Black Warrior Riverkeeper, the Mobile Baykeeper, the Choctawhatchee Riverkeeper, River Network, Friends of Shades Creek and the Alabama River Alliance present the following comments on the draft Phase II MS4 General Permit (the “draft GP”) released by ADEM for public comment on January 14, 2010.

The draft GP represents a positive step toward bringing Alabama Phase II communities into compliance with EPA regulations implementing the federal Clean Water Act. While the draft GP needs further improvements as outlined below, we would like our initial comment to be one of commendation for ADEM’s effort.

We are pleased with ADEM’s implicit recognition that it cannot, as a practical matter, fully implement on behalf of Phase II communities the minimum control measures regarding Construction Site Stormwater Runoff and Post-Construction Stormwater Management. As we have noted in many past communications with ADEM and EPA, ADEM has neither the staff nor the local expertise, presence, and involvement with the development review process needed to implement these two minimum control measures on behalf of Phase II MS4s. Although Section IV.A.1 still contemplates the possibility that ADEM might conduct a stormwater management program on behalf of a Phase II MS4, the requirements laid out for Phase II MS4 compliance with the Construction and Post-Construction minimum control measures specify a level of activity that can only be accomplished by local governments.

We also strongly support the draft GP’s recognition of low-impact development (“LID”) stormwater management techniques and the regulatory requirements for greater public participation in Phase II MS4 stormwater management programs. As noted below, the draft GP should be further improved to promote more effectively both LID techniques and the public participation required to ensure that Phase II communities properly implement their programs as required by the General Permit.

Our comments below focus first on LID implementation and then on improvements to public participation requirements -- particularly in the areas of ensuring that public participation in development and amendment of the stormwater management program (“SWMP”) occurs and making documents readily available to the public. Finally, we note specific inadequacies in the permit and recommend additional language needed to make the permit more effective and to bring it into compliance with federal and state laws.

I. The Phase II Permit must ensure that permittees require LID in new development and redevelopment projects because LID is necessary to reduce stormwater discharges to the “maximum extent practicable” (“MEP”).

EPA’s rules promulgated pursuant to 33 U.S.C. § 1342(p) (2006) require regulated entities to “develop, implement, and enforce a stormwater management program designed to reduce the discharge of pollutants . . . to the maximum extent practicable, to protect water quality, and to satisfy the appropriate requirements of the Clean Water Act.” 40 C.F.R. §122.34(a) (2006) (emphasis added). Based upon existing case law, “maximum extent practicable” means to the fullest degree technologically feasible for protection of water quality, except where costs are wholly disproportionate to the potential benefits. See Haeuser v. Department of Law, 97 F.3d 1152, 1155 (9th Cir. 1996) (“practicable” has been defined as “capable of being done: feasible”); Rybachek v. United States EPA, 904 F.2d 1276, 1289 (9th Cir. 1990) (EPA must select best level of technology unless costs are “wholly disproportionate” to the benefits); Ass’n of Pac. Fisheries v. United States E.P.A., 615 F.2d 794, 805 (9th Cir. 1980). In the stormwater context, these stringent definitions of the term “practicable” are further narrowed by the use of “maximum,” clearly indicating that the measures to be required must be more protective than standard practice, or than ordinary measures, especially where those measures are failing to protect water quality.

LID practices fall within this category of measures that are more protective than current standard practices and should be required in NPDES Phase I and II stormwater permits. Whereas conventional stormwater controls are designed to collect and convey stormwater off of a site, LID practices are meant to mimic the predevelopment hydrograph on a site using practices, including but not limited to bioretention areas, permeable pavement, stormwater capture and reuse, green roof design, and grassed swales. LID site design also incorporates the protection of wide naturally-vegetated riparian buffers and standards that actually or effectively minimize impervious surface. EPA states that LID practices offer “both economical and environmental benefits.” US EPA, Office of Water, Low Impact Development (LID): A Literature Review, EPA-841-005, at 2 (October 2000). “LID measures result in less disturbance of the development area, conservation of natural features and can be less cost intensive than traditional stormwater control mechanisms.” Id. EPA’s own study, "Reducing Stormwater Costs through Low Impact Development (LID) Strategies and Practices,” U.S. EPA, (December 2007), as well as model projects in our region, prove that LID practices have provided significant cost-savings over conventional storm water practices. Practices that cost less than and reduce pollution more than traditional practices should be required by ADEM in NPDES stormwater permits.

In February 2009, the Washington Pollution Control Hearings Board issued a ruling requiring MS4s around Puget Sound to take more aggressive steps to reduce stormwater runoff. The Board struck down provisions in two Phase II stormwater permits as inadequate and concluded that greater use of "low impact development" techniques is required to meet the Clean Water Act’s MEP standard. Puget Soundkeeper Alliance, et al. v. State of Washington, Department of Ecology, PCHB Nos. 07-022, 07-023, 46-48 (Feb. 2009). The Board concluded that the permits' focus on traditional engineered stormwater management facilities like detention ponds was inadequate to protect water quality and meet Clean Water Act requirements. Id. at 47. The Board further concluded that the permits failed “to require that the municipalities control stormwater discharges to the maximum extent practicable and does not require application of all known, available and reasonable methods to prevent and control pollution, because it fails to require more extensive use of low impact development techniques.” Id.

While we appreciate the LID measures suggested in the draft GP Part III.B.5.b(3) & (4)ii & iii (e.g. encouraging infill development, minimizing impervious areas, building bioretention devices, etc.), we believe that adoption of LID techniques should be mandatory for Phase II permittees in Alabama given the regulatory language, study results, and case law described above. Thus, the introductory language of Part III.B and the language of Part III.B.5.b should require permittees to incorporate LID for new development and redevelopment projects.

To accomplish this, “where feasible” should be replaced by “to the maximum extent practicable” in the first introductory sentence of Part III.B. In addition, this sentence (with “where feasible” replaced by “to the maximum extent practicable”) should be repeated as a minimum requirement in the rationale statement for the post-construction SWMP under Part III.B.5.b, including substitution of this phrase for the vague wording in III.B.5.(b)2. As demonstrated above, the term “maximum extent practicable” is meant to encompass more than just the question of feasibility. Focusing solely on feasibility effectively writes the word “maximum” out of “maximum extent practicable.” LID is an effective and essential way to control stormwater runoff and can result in lower overall costs for the permittee to meet stormwater requirements.

For this reason, we also request that the definition of Low Impact Development found at Part VI.S.6. include an additional sentence as follows: “Because LID design techniques are tested, available and reasonable methods to control and prevent pollution from stormwater run-off, Phase II permittees must ensure that LID techniques are used for on-site management of post-construction stormwater volumes to the maximum extent practicable.”

We further request that Part III.B.5.(a)3 be revised to require the adoption of adequate legal authority to implement LID, with subsequent incorporation of the specific performance standard discussed below.

Finally, we note that Part III.B.5 on the post-construction minimum control measure consistently refers only to water quality. Controlling increases in volume as well as rate of runoff is essential in order to prevent erosion and protect water quality. The permit should specify the necessity to minimize impacts to runoff rate and volume to the maximum extent practicable in III.B.5.(a)1 and III.B.5.(b) 2 and should include this in the measurable goals in III.B.5.(b) 7.

II. The Phase II General Permit should include a timetable for developing a post-construction stormwater volume reduction performance standard that Phase II permittees will be required to implement within two years of issuance of the final General Permit.

MS4 permits recently developed in other states include objective performance standards for reducing stormwater runoff volumes. For example, these permits may establish specific percentages of stormwater that must be managed on-site using LID methods, or may designate a maximum amount of allowable impervious area, or may require that post-construction runoff volumes not exceed pre-development runoff volumes. See, e.g., MS4 permits for West Virginia and Ventura County, California.

Such an objective standard would provide a helpful “bright line” measurement tool, necessary to allow Phase II permittees to document compliance as they implement the post-construction program required by Part III.B.5 of the draft GP. ADEM should begin the process of developing such a performance standard appropriate for Alabama and, through the Phase II General Permit, notify permittees that they will be required to institute this performance standard or an equivalent standard appropriate to local conditions within two years. By incorporating a timeline within this Phase II General Permit for performance standard development and permittee adoption thereof, ADEM will ensure that permittees will have time to understand the development standard idea and yet will also ensure that development of such a useful tool will not be delayed until the next Phase II General Permit is issued in 2015 (or later).

The organizations presenting these comments offer their knowledge and support for an ADEM process to develop a feasible performance standard for post-construction.

III. To fulfill their public involvement and participation requirements, Phase II permittees must provide both opportunities for public involvement in SWMP development and easy public access to reports and documents produced to meet General Permit obligations.

A. The General Permit should require permittees to develop opportunities for the public to participate in drafting and updating SWMPs.

In Part III.B.2(b), the draft GP requires permittees to “consider” developing opportunities for the public to participate in SWMP drafting and updating. This word is not strong enough. Permittees can “consider” any number of options without actually allowing public participation to occur. In order to ensure that permittees provide for public participation in the drafting and updating of the SWMP, the Phase II General Permit should delete the word “consider” from the first sentence of Part III.B.2(b) and substitute in its place “shall develop.” Parts III.B.4(b) and III.B.5(b) should also be revised to require that permittees’ rationale statements include information about public involvement procedures used in development of the construction site stormwater control program and the post-constructon SWMP. Finally, we request that Parts IV.B.1 & 2 be revised to require public involvement in annual review of SWMPs and any updates to SWMPs.

B. The General Permit should require permittees to provide public internet access to all reports and documents generated to meet permit obligations.

In the draft GP, ADEM has taken some positive steps to repair a woefully inadequate record of providing public access to documentation generated to meet NPDES requirements. For example, the draft GP implicitly acknowledges that the internet now exists as a medium that can facilitate the distribution of documents to the public. We welcome this acknowledgement because a publicly-accessible internet site is the easiest way for government agencies to provide documents to the public and for members of the public to access those documents.

We applaud ADEM’s steps in the right direction but note several inadequacies and inconsistencies regarding public access to documents that should be corrected in the final General Permit. These corrections are essential for permittees to fulfill their obligations under the second minimum control measure (public participation and involvement), because without easy access to documents such as SWMPs, annual reports, enforcement and monitoring results, and TMDL allocation calculations, the public cannot determine whether or not a Phase II permittee is fulfilling its permit obligations. Adequate and effective public participation is not possible without easy access to relevant information.

For this reason, the following revisions should be made to the draft GP:

1. The draft GP Part III.B.2(b)8 states that permittees shall make their SWMP and annual reports available to the public “when requested.” It states that permittees “should” publish these documents on their website, if available, or else submit the documents to ADEM for electronic distribution in accordance with ADEM’s public records process.

Given the subjective nature of the word “should,” the well-documented difficulties that members of the public have had with past document requests through ADEM’s public records process, and the potential cost of obtaining records through ADEM, this provision is not clear enough or strong enough. It would be much simpler and more forthright for this provision to state simply that permittees shall make their SWMP and annual reports available to the public on a website. Many current Phase II communities already have such websites. See, e.g., www.ci.tuscaloosa.al.us; www.digitaldecatur.com; www.sheffieldalabama.org; www.phenixcityal.us; www.cityoftuscumbia.org. Public posting of such documents on community websites is increasingly the norm throughout the nation. ADEM should not hesitate to require such website posting of Phase II SWMPs and annual reports.

If ADEM believes that it is economically infeasible to require all permittees to develop such websites, then ADEM should categorically state that it will post all SWMPs, annual reports, and contact information for each MS4 on its own website so that the public may review them and easily call the appropriate person with questions -- without having to go through an onerous public records process.

2. Other documents, reports and data delineated in the Phase II General Permit should also be made easily electronically available to the public. Revisions to the GP that will require electronic posting of documents should also be made to these sections:

• Enforcement case documentation under Part III.B.4(f);
• Monitoring plans, results, evaluations, and calculations under Part IV.D; and
• Data, documentation and records required under Part V.A & B.

IV. Permittees should be required to develop an enforcement response plan (“ERP”) immediately as part of their SWMP, not within the five year cycle of the permit.

Effective enforcement is an essential part of a successful stormwater management program. Why, under Part III.B.4(d), should permittees be given five years to come up with an enforcement response plan (“ERP”), when, under Part II.A, all other aspects of the SWMP must be developed and submitted with the Notice of Intent (“NOI”) within 90 to 180 days of the date of permit issuance or of designation notification by ADEM? This separate ERP requirement and delayed deadline create confusion as to what enforcement program steps are required of permittees and by what date they must be taken, and would likely lead to a delay in implementation of effective enforcement. For this reason, we request that Part III.B.4(d) be eliminated and the ERP be included as a minimum requirement of the SWMP as outlined under Part III.B.4 (a)(7-9) & (b)(2), consistent with all other aspects of the SWMP.

V. Several additional provisions of the General Permit require clarification or improvement.

The following provisions of the draft GP require clarification or improvement:

A. In Part I.E.1, the phrase “in discharges … to the MS4 to cause or contribute to violations” should be revised to read “in discharges … to the MS4 that cause or contribute to violations…”

B. The deadline for NOI/SWMP submittal by existing Phase II MS4s in Part II.A.1 needs to be clarified. As currently written, this section appears to require existing Phase II MS4s to submit their NOI/SWMP at the end of the five year permit period (“within 90 days before the expiration of this permit”). We assume that the intent is for existing Phase II MS4s to submit a new NOI/SWMP meeting the requirements of the revised General Permit within 90 days of effective date of permit coverage. This needs to be clarified in the wording of Part II.A.1.B.

C. Part II.C.2 should require dischargers to provide a MS4 system map as part of the NOI.

D. As part of the NOI, dischargers should be required in Part II.C.2. to list whether any receiving waters are Outstanding National Resource Waters as described in Ala. Admin. Code r. 335-6-10-.04 and -.12 , Outstanding Alabama Waters as listed in Ala. Admin. Code r. 335-6-11-.02, and other Tier 2 waters as described in 335-6-10-.12.

E. MS4s must demonstrate in their SWMP that they are in compliance with Alabama’s antidegradation policy (Ala. Admin Code r. 335-6-10-.04) and implementation procedures (Ala. Admin Code r. 335-6-10-.12) regarding Tier 1 waters (not harming existing uses classified in Ala. Admin Code r. 335-6-11-.02), Tier 2 waters (including Outstanding Alabama Waters) and Tier 3 waters (Outstanding National Resource Waters – for future designations, since there are currently none in Alabama) as identified in the NOI.

F. So that ADEM can require SWMP updates as state requirements change, Part IV.B.3.(c) should read “… to comply with new Federal or State statutory requirements …”

G. Part III.B.4(a)4 requires that construction program procedures for site plan review must be consistent with Alabama Administrative Code 335-12-6 (the rule that codifies the Construction General Permit (“the CGP”)). As stated in our comment letter on the CGP dated January 27, 2010, we think that the CGP application procedures should be made consistent with the MS4 permits. In other words, MS4s should issue their permits to construction site operators before ADEM approves the operator’s Notice of Intent (“NOI”) and Construction Best Management Practices Plan (“CMBPP”) and allows construction to commence under the CGP. As part of its CGP approval process, ADEM should require construction site operators to submit simultaneously with their NOI and CBMPP a final permit from the relevant MS4 showing that the MS4 has reviewed and approved their construction and post-construction stormwater management plans.

H. Our experience is that many municipal inspectors have not been trained in how to inspect construction sites for stormwater violations. For this reason, we request that minimum certification or training requirements for inspection staff be incorporated into Part III.B.4(c).

I. Part III.B.5(b)5 requires permittees without existing regulatory mechanisms addressing post-construction runoff to describe “a plan and a schedule” for developing that regulatory mechanism. In order to minimize delays in developing this essential part of the post-construction requirements, we request that Part III.B.5(b)5 state a deadline for development and implementation of that mechanism, e.g. within 18 months of the effective date of permit coverage. Because the draft GP already gives permittees one year to develop a post-construction program under Part III.B.5, permittees should require no more than an additional six months to develop and implement their regulatory mechanism.

J. Part IV.C requires substantial revision. The title of this section is “Discharge Compliance with Water Quality Standards.” Given the title, it seems only logical that the section would require discharges to comply with applicable water quality standards. As it’s written however, the section seems to exempt compliance with applicable water quality standards if a permittee has implemented BMPs. A so called “BMP defense” is in direct violation of both federal and state laws, which prohibit the issuance of an NPDES Permit that will “cause or contribute to a violation of water quality standards.” 40 C.F.R. § 122.4(i); Ala. Admin Code r. 335-6-6-.04(i); see also Ala. Admin Code r. 335-6-10-.06 (describing the minimum conditions applicable to all state waters “at all times and at all places”). This section should be revised to read as follows: “No discharges authorized by this permit shall cause or contribute to a violation of Alabama’s water quality standards, as provided by Ala. Admin Code r. 335-6-10.”

K. Part IV.D. should have more specifics about the timing and procedures regarding necessary adjustments to the SWMPs and actual enhancements of BMPs when discharge is to impaired or TMDL waters and current practices are resulting in violations of water quality standards.

L. Part IV.D.1. states that the permit does not authorize discharges into impaired waters and defines such waters as those identified on the State’s 303(d) list. However, waters with an adopted TMDL are removed from the 303(d) list. For this reason, the following final clause should be added to the second sentence of Part IV.D.1: “or for which an EPA-Approved TMDL has been developed.”

M. Part IV.D.2(h) requires permittees with discharges into impaired waters to follow the process outlined in Part IV.D.2(d-h) until an approved monitoring plan shows that TMDL allocations are being met for “two continuous monitoring cycles.” The duration of those monitoring cycles is unclear. We request that the time allotted for a monitoring cycle be clearly stated in the General Permit. We also request that some monitoring still be required after an approved monitoring plan shows that TMDL allocations are being met. This would assure that TMDL allocations continue to be met over time rather than only once. Part IV.E. should also include a provision that allows any interested person to petition the Director to require any discharger to apply for and obtain an individual NPDES permit, as provided in 40 C.F.R. § 122.28(b)(3).

N. Part V.A.1 states that permittees discharging into impaired waters “may” have monitoring requirements. This conflicts with Part IV.D.1 (b) & (c) which state that such permittees “must” include monitoring plans in their SWMPs. For this reason, we request that “may” be eliminated from the second sentence of Part V.A.1. Monitoring will be necessary to evaluate the effectiveness of control measures for impaired waters.

O. Because pollution from in-stream erosion caused by increased volumes of stormwater runoff is a major problem in many impaired Alabama watersheds, we request that Part V.A include requirements for monitoring and assessing stream geomorphology and stability changes.

P. Part V.B.1 requires permittees to retain required records for three years or “the term of this permit, whichever is longer.” Given ADEM’s history of delay in reissuance of general permits, this language should be revised to state “the term of this permit, including any administrative continuation, whichever is longer.”

Q. Under Part V.C.1(p), permittees who claim that they do not have adequate legal authority to implement any part of the Phase II MS4 permit requirements must submit to ADEM “written notification based on applicable State Law precluding implementation of any minimum measure or component” of the Phase II permit. We request further clarification in the Phase II permit as to how ADEM will respond to any such “written notification” by a permittee. We also caution that if there are any such barriers in State Law preventing permittees from meeting permit requirements that are also minimum requirements under the Clean Water Act, this is grounds for withdrawal of delegation of the water program. ADEM should take action expeditiously to cure any such barriers to permittee compliance.

We thank you for taking these comments on the draft Phase II MS4 General Permit into consideration. We are pleased with the progress that this draft shows over the last Phase II permit and look forward to seeing an effective final permit that will help us to protect and restore Alabama’s water resources.

Sincerely,

ALDOT I-65 / I-10 Connector Comments

October 28, 2009

Vincent E. Calametti, P.E.
Division Engineer
Alabama Department of Transportation, Ninth Division
1701 I-65 West Service Road N
Mobile, AL 36618-1109

RE: Project No. ST-002-000-006, Connector between I-65 and I-10, Baldwin County

Dear Mr. Calametti,

We are Mobile Baykeeper, a twelve year old nonprofit organization with the mission of providing citizens a means to protect the beauty, health and heritage of the Mobile Bay watershed. We are writing on behalf our Board, Officers and more than 3,500 members to address ALDOT’s intent to conduct a corridor study to select a route for an I-65/I-10 Connector. This is a major undertaking that requires very close scrutiny from both your department and the community at large. Unfortunately, we were not able to attend the public meetings held last week to view the materials on display. We respectfully request more information on this project including any maps you are making available to the public, continued notice of public meeting, and the decision making timeline.

A significant issue that should be considered in the construction of such a road is a major investment by the State of Alabama's Forever Wild Program, The Nature Conservancy and other conservation groups in 19,000 acres of native Alabama forest habitat along the Perdido River. This investment was made to preserve and restore one of the last areas in Baldwin County with potential to support a fully functioning longleaf forest ecosystem. Conservation groups deliberately focused their moneys and efforts in a section of the county relatively free of development and roadway impacts. More purchases have been planned to expand this conservation area into a 30,000 to 50,000 preserve that would be adequate to preserve all of the longleaf ecosystem components into the 21st century.

This investment could be threatened in multiple ways. Even small alterations to runoff as a result of road construction can severely impact the area's complex small-stream and sheet flow hydrology, which feeds the rare bog ecosystems on properties immediately adjacent to the easternmost route. Collection of multiple small streams and sheetflow in culverts can severely impact the health of acres of downstream wetlands,

as was evident in the U.S. 98 corridor project in Mobile County. At least 17 stream crossings are evident in the easternmost Baldwin County corridor. Two or three crossings are in place on the dry ridge that underlies the westernmost corridor.

Prescribed fire management is essential to the restoration and maintenance of all aspects of the longleaf pine ecosystem, and numerous studies have shown that such forest systems do not survive without frequent fires, with a typical return interval of three times each decade. Because of the complexity of smoke-management issues and other fire-management concerns, the placement of a high-speed, high-traffic corridor next to the Forever Wild preserves is very likely to eliminate the ability to maintain the health of the ecosystem that millions of dollars have been spent to preserve.

This conservation area has also been tagged as a critical refuge for the gopher tortoise, already listed as threatened in counties east of the Mobile Basin, and now proposed for listing in areas west of the basin, and for the threatened indigo snake, slated for reintroduction to this conservation area. Special provisions for these endangered species, including fences, will no doubt be required in the construction of any road. But such structural adaptations will not be beneficial if the roadway impacts the fire regime or the hydrology which is critical to the maintenance of these endangered creatures.

Alabama's last breeding population of black bear has been noted utilizing the Perdido River longleaf corridor. A number of conservation groups in Alabama and Florida, including The Nature Conservancy, have identified the Perdido River longleaf corridor as not only an ideal nursery and foraging habitat for the black bear, but also as a critical link between the remnant Alabama populations of black bear and populations in Florida. Recent university studies have indicated that if the small remnant populations of Alabama black bear remain isolated from populations in surrounding states, inbreeding and genetic bottlenecks are likely to threaten the survival of Alabama's population. Still other studies conducted in Florida have indicated that largest killer of black bears within the state is road mortality from high speed roadways.

We encourage ALDOT to conduct comprehensive studies of the collective environmental impacts of the proposed road project. A thorough analysis of direct, indirect, and cumulative impacts of projects like the I-65/I-10 Connector is required pursuant to the National Environmental Policy Act. Eastern Baldwin County is currently relatively rural, and a project of this scope is going to have significant impacts, both as a direct result of the new roadways and indirectly through the acceleration of growth. Economic and physical growth are not inherently negative things, but unplanned development can have lasting and often unforeseen negative impacts on the region’s culture and environment.

Additionally, we are aware of similar study being conducted by the Baldwin County Highway Department to construct a similar I-65/I-10 Corridor, albeit along a more westerly route. What differentiates the ALDOT plan from the Baldwin County plan? Please send your rationale explaining specifically why and how these two preliminary routes were chosen.

This project must be viewed as one large undertaking. We assert that any permitting that may take place for this project should be submitted as one single plan, with an accompanying Environmental Impact Statement. We also affirm that any wetlands taking possibly associated with such a project should not be reviewed and permitted for fill in a piece-mail fashion as that is a direct violation of the Clean Water Act.

Thank you in advance for consideration of these comments and our requests for further information. Please feel free to contact us with any questions you might have or to discuss these comments.

Sincerely,

Casi (kc) Callaway                                                                                       Donna Jordan
Executive Directory & Mobile Baykeeper                                                  Program Director

Cc:
J. Patrick Courtney
Alabama Department of Environmental Management
U.S. Army Corps of Engineers
 

Alabama Power Barry Steam Plant NPDES Modification Comments

October 23, 2009

Russell A. Kelly, Chief
Permits and Services Division
ADEM
PO Box 301463
Montgomery, Alabama 36130-1463

Re: Alabama Power Company-Barry Steam Plant, NPDES Permit Number AL0002879, Modification

Dear Mr. Kelly:

We are Mobile Baykeeper, a twelve year old nonprofit organization with the mission of providing citizens a means to protect the beauty, health and heritage of the Mobile Bay watershed. We submit the following comments on the application for a NPDES permit modification made by Alabama Power Company on behalf of our board, officers, staff, and more than 3500 members.

1. ADEM Administrative Code 335-6-10-.04(5), Antidegradation Policy, lists that “developments constituting a new or increased source of thermal pollution shall assure that such release will not impair the propagation of a balanced indigenous population of fish and aquatic life.” Part IV, Section C. 316(A) Thermal Variance Study Requirements states that the permittee shall present the Department with a study plan to outline the study process of water quality and biology assessments at the facility, as well as at downstream stations, to judge the facility’s discharge impacts to organisms living within the Mobile River, in accordance with Clean Water Act Section 316a. The draft permit further requires that initial monitoring shall take place prior to year 3 of the permit, with a second monitoring to take place prior to year 5 of the permit effective date. In the permit rationale, it is stated that the additional thermal discharges to DSN002C are not expected to be a matter of concern. We assert that any additional thermal discharge increases have potential to alter the overall thermal pollution imprint and as such the Thermal Variance Study Requirements should be increased to require yearly monitoring for the life of the permit. We also assert that the study should be ensured to have a clear definition of a balanced, indigenous community, to include elements of a population typically characterized by diversity at all trophic levels, the capacity to sustain itself through cyclic seasonal changes, the presence of necessary food chain species, non-domination of pollution-tolerant species, and that all species are indigenous. A thorough approach to study and monitoring is absolutely necessary to meet the requirements of both ADEM Administrative code as well Clean Water Act Requirements.

2. Another point of concern is the provision to conduct a one-time only sampling of metals at outfall DSN002 within 6 months of the start of operational life of the scrubber and carbon capture systems. There is no clear indication of what process will occur if additional metal discharge is found coming from the scrubbers. As the Mobile River is a §303(d) listed waterway as impaired for metals, we are glad to see that sampling for additional metal pollutants is required by the permit, but we must insist that the permit include language that shall address potential additional discharges and the approach that the Department shall take with such findings, such as additional sampling requirements and/or permit modification.

3. The permit rationale also notes that as the Barry Steam Plant already is performing mercury analysis, that a provision for a complete Mercury Study Plan will be removed from the permit. The Mobile River is listed as impaired for metals, specifically mercury, on the 2008 Alabama §303(d) list, with a draft TMDL date of 2013. As such, these discharges should be carefully monitored on a regular basis and studied to gauge the facilities impact on in-stream water quality degradation over time during the term of the permit.

Overall, we would discourage granting this permit as it has been submitted. We would recommend that the Department require the permittee to enact thorough study of thermal effects on indigenous populations of organisms in the Mobile River at DSN002C, potential metals discharge from the scrubber and carbon capture systems at DSN002, and mercury discharges from DSN002. We find that these recommendation are necessary and will help the applicant avoid issues with water quality degredation as well as protect public safety.

Thank you in advance for the consideration of our comments. Please feel free to contact us at (251) 433-4BAY(4229).

Sincerely,

Casi Callaway
Executive Director & Baykeeper

Donna Jordan                                                                                                                                                                       Program Director

Alabama Stormwater Partnership Comments on Draft Phase II General Permit ALR040000

• I.E.2. This section needs to be expanded to include violations of water quality standards that may not be reflected on the 303(d) list or covered by a TMDL. While both the 303(d) list and TMDLs provide clear indications of water quality violations, they are not meant to be exclusive.
• II.B.3. Delete the word “permit” from “formal permit decision.”
• III.B.1.(a) There is a typographical error in the last sentence; change “implementation on” to implementation of.”
• III.B.3.(a) Delete “the Permittee must” at the beginning of this subsection.
• III.B.3.(a)2. Change “maintained by boundaries of the Permittee’s watershed” to “maintained within the boundaries of the Permittee’s watershed.” Delete “following” and “as” in the last sentence.
• III.B.3.(a)4. Change “their” to “its” in the first sentence.
• III.B.3.(a)5. Add “The Permittee shall” at the beginning of the first sentence.
• III.B.3.(a)6. Add “The Permittee shall” at the beginning of the first sentence.
• III.B.3.(b)1. Change “location of all receiving waters” to “locations of all receiving waters.”
• III.B.4.(a) Change “land disturbance or greater than or equal to one acre” to “land disturbance of greater than or equal to one acre.” 
• III.B.4.(a)1. Change “pollutant” to “pollutants.”
• III.B.4.(b) Add the word “must” after “Permittee” in the final sentence.
• III.B.4.(c) Change the subsection from (a) to (c).
• III.B.4.(c)2. Change “such a stop work orders” to “such as stop work orders.”
• III.B.5.(b)3.iv. Add “of” after “thought.”
• III.B.6.(b)3.iv. Change “additional water quality protection devices or practices” to “additional devices or practices where necessary to protect water quality.”
• IV.A. The heading should be in bold.
• IV.B.2.(b) The first sentence should be rewritten to read “Changes replacing an ineffective or unfeasible component, control measure, or requirement specifically identified in the SWMP, with an alternate component, control measure, or requirement may be requested at any time.” 
• IV.B.2.(b)1. Change “components, control measures, or requirements” to “component, control measure, or requirement.”
• IV.B.2.(b)2. Change “Expectations on” to Expectations of.”
• IV.B.4.(b) This subsection should be its own number (5) since it is not related to the transfer of ownership, operational authority, or responsibility for SWMP implementation.
• IV.D.1. Delete “listed as” and “listed” in the last sentence.
• IV.D.1.(c) Change “notify the Department on how” to “notify the Department as to how.”
• VI.P.3. In the last sentence, the reference should be to Part VI.P. of the permit, not Part VI.O.
• VI.T.(15) “Priority developments” is undefined.

Baldwin County Highway Department - I-65/I-10 Connector Study

December 21, 2009

Baldwin County Highway Department - I-65/I-10 Corps Permit Request

April 14, 2010

District Engineer
Regulatory Division
U.S. Army Engineer District, Mobile
P.O. Box 2288
Mobile, AL 36628

RE: Permit Application SAM-2009-00884-JBE, Baldwin County Highway Department, I-10/I-65 Connector

To Whom It May Concern:

We are Mobile Baykeeper, a thirteen year old nonprofit organization with the mission of providing citizens a means to protect the beauty, health and heritage of the Mobile Bay watershed. We are writing on behalf our Board, Officers and more than 3,500 members to address the Baldwin County Highway Department’s application to construct an I-65/I-10 Connector. This is a major undertaking that requires very close scrutiny from both the Corps of Engineers and the community at large.

Last fall, when we first learned of the Baldwin County Highway Department’s intent commence a corridor study to select a I-10/I-65 Connector, we were presented with two routes. Alternative 1, which closely parallels Highway 59, proposed eight stream crossings on the dry ridge that underlies the westernmost corridor, with 99 acres of wetlands to be filled. In Alternative 2, the easternmost Baldwin County corridor, at least 24 stream crossings were shown, with an estimated 150 acres of wetlands requiring fill to construct the road. The applicant’s choice, as shown in this public notice, is most similar to Alternative 1, although the cumulative proposed wetland taking have increased to 104.9 acres.

The public notice notes the proposed project would cross five water bodies in Baldwin County: Styx River, Reedy Creek, McCurtin Creek, Hollinger Creek, and a tributary to Dyas Creek. Our review of the planned route with county maps indicates that there are two other water bodies that may be affected, Flat Creek and Horseneck Creek. Impacts to these waterways during construction and from permanent fill of associated wetlands are of great concern to us. One of these, Styx River, is on Alabama’s §303(d) list of impaired waterways. Our review of the plans included in the public notice do not adequately address what plans shall be put in place for stormwater controls during construction of the project nor are there indications of methods of stormwater management along the roadway post construction. Any construction taking place in this area needs a careful and well-defined plan for erosion control and we recommend the Corps require the Baldwin County Commission to provide BMP and erosion control plans as part of their application. A good plan, properly implemented, should circumvent any additional wetland fill necessitating any after-the-fact requests for additional wetland fill. Given the scope and location of the project, pre-construction and post-construction stormwater management plans should be available for public review and comment as part of this public notice.

This portion of Baldwin County is currently relatively rural, and a project of this scope is going to have significant impacts, both as a direct result of the new roadway and indirectly through the acceleration of growth. Economic and physical growth are not inherently negative things, but unplanned development can have lasting and often unforeseen negative impacts on the region’s culture and environment. Included in the review of this project should be a significant and comprehensive review of secondary and cumulative growth resulting from this project and an analysis of the potential impacts from that growth.

Baldwin County’s pledge to mitigate 104.9 acres of wetland impacts through an unspecified wetland mitigation bank is vague and we insist the Corps seek a more complete mitigation plan that includes mitigation within the affected watershed. Mobile Baykeeper maintains that all mitigation for wetland impacts on a given site should be within the nearest vicinity possible, specifically within the 12 digit HUC subwatershed, to wetlands that have been disturbed. Mitigation within the watershed should help lessen impacts to hydrology in the surrounding drainage basin as well as to maintain the integrity of the local ecosystem. This is a substantial amount of wetland area which requires comprehensive studies of the collective environmental impacts of the proposed road project. A thorough analysis of direct, indirect, and cumulative impacts of projects like the I-65/I-10 Connector is required pursuant to the National Environmental Policy Act.

There is no discussion of attempts at wetlands avoidance for this particular route in the public notice. In our review of the documentation, there are several sections of the proposed road where wetland fill could be avoided by extending the lengths of bridges that cross adjacent waterways, at the Styx River, Hollinger Creek, McCurtin Creek, and the Dyas Creek Tributary crossings. Wetlands, such as these, are a valuable resource in reducing the impacts of flooding due to heavy rains or hurricanes by absorbing the water, then slowly releasing it into the associated water bodies. With this project purported as a hurricane evacuation route it would seem appropriate to preserve these wetlands as a resource for reducing the economic impacts of these natural occurrences.

In closing, we feel it is imperative to reiterate that this project warrants a full Environmental Impact Statement. We maintain our stance that any stream or wetlands mitigation for a proposed project should occur within the nearest possible vicinity, preferably the 12 digit HUC subwatershed. We also request the Corps require the addition of the applicant’s erosion & sedimentation control plans to their application, and to make those plans available for public review and comment. Finally, we respectfully request that you open this matter to a public hearing to address the questions we have raised and allow local residents to voice their concerns. Further information provided in a public forum would be greatly beneficial for stakeholders to better understand the full impacts of this project.

Thank you in advance for consideration of these comments. If you have any questions or need any additional information, please do not hesitate to contact us.

Sincerely,

Casi (kc) Callaway, Executive Directory & Mobile Baykeeper

Donna Jordan, Program Director

cc: Alabama Department of Environmental Management
 

Coal Ash Letter to Representative Bonner Template

Fairhope LLC (The Shoppes at Fairhope Village) Consent Order Comments

August 14, 2009

James E. McIndoe, Chief of Water Division
Alabama Department of Environmental Management
PO Box 301463
Montgomery, Alabama 36l30-l463

Re: Consent Order 09-XXX-CWP, Fairhope LLC, The Shoppes at Fairhope Village, NPDES ALR16EAE1

Dear Mr. McIndoe:

We are Mobile Baykeeper, a twelve year old nonprofit organization with the mission of providing citizens a means to protect the beauty, health and heritage of the Mobile Bay watershed. We are submitting comments on the consent order to Fairhope LLC for violations found at the Shoppes at Fairhope Village project on behalf of our board, officers, staff, and more than 3,500 members. We are of the opinion that the Department has failed to faithfully implement the Alabama Environmental Management Act and has imposed a penalty ($11,000) that is insufficient to address number and severity of violations documented at this site.

Alabama Code § 22-22A-5(18)c. (2006 Rplc. Vol.) requires that “in determining the amount of any penalty, the Department must give consideration to the seriousness of the violations, including … the standard of care manifested by the violator.” The Consent Order identifies that Fairhope LLC “did not exhibit a standard of care commensurate with applicable regulatory requirements.” We find that the repeated violations displayed by Fairhope LLC (at least 7 incidents as noted by the Department) clearly displays a habitual failure to exercise the degree of care necessary to comply with regulatory requirements. Fairhope LLC simply did not create a system BMP’s of sufficient to control the sediment leaving the site, even after receiving the Department’s September 26, 2008 NOV informing them of deficiencies found during site inspection which occurred on August 8, 12, & 13, 2008. The Consent Order further notes that the October 16, 2008 QCP Report submitted to the Department listing corrective actions on the site, was unclear as whether or not the problems at the site had been addressed. Obviously these problems were not addressed sufficiently by Fairhope LLC as violations continued to occur and were documented by the Department on December 10, 2008, March 30, 2009, and May 4, 2009. As a result of Fairhope LLC’s repeated lack of sufficient care exercised we insist that the current fine levied ($11,000) is and insufficient penalty in relation to standard of negligence that was displayed time and time again.

Alabama Code § 22-22A-5(18)c. (2006 Rplc. Vol.) requires that “in determining the amount of any penalty, the Department must give consideration to the seriousness of the violations, including … the nature, extent, and degree of success of such person’s efforts to minimize or mitigate the effects of such violations upon the environment.” We respectfully disagree with the Department’s assessment in the Consent Order that Fairhope LLC took sufficient action to minimize the effects of the violations upon the environment and that there are no known environmental effects as a result of the violations that took place on this site. Due to insufficient BMP maintenance at the site, particularly maintenance of the site’s detention pond, sediment breached BMPs at the site and has filled in adjacent wetland as well as the creek bed of Fly Creek. In fact, we were informed by a local community organization, The Fly Creek Preservation Association (FCPA), that prior to a February 14, 2009 breach event they observed, workers at the site blocked inlet drains to the detention pond (which was half full of red clay) effectively bypassing sediment from entering the detention pond and instead diverted stormwater runoff directly into Fly Creek. We have also received photo documentation from FCPA of sediment-laden runoff leaving the site and washing directly into wetland areas adjacent to the site. As a result of Fairhope LLC’s lack of minimization and/or mitigation of stormwater sedimentation offsite impacts to Fly Creek and the wetlands adjacent to the site, we reiterate that the current fine levied ($11,000) is an insufficient penalty.

The violations that took place on the dates listed in this Consent Order were generally categorized as either failure to implement and maintain effective BMPs, sediment deposition offsite and sediment deposition in wetlands, and the Department listed each of these violations as having historical penalty amounts on $100 to $2,500 per day. The suggested penalty for the 7 documented violations that occurred over a period of roughly 9 months is $11,000, prefaced on the statement that this Consent Order is “a negotiated settlement and, therefore, the Department has compromised the amount of the penalty the Department believes is warranted in this matter.” What is the original amount the Department had found should be warranted in relation to the nature and duration of the penalties committed by Fairhope LLC? How were these figures reached and how was the figure of $11,000 decided upon? In our calculation, if each day BMPs were not properly implemented counts as a separate violation, with violations occurring continuously from August 8, 2008 to May 4, 2009 for roughly 265 days. If the minimum penalty assessed ($100) was levied for those violations, the amount due would be $26,500. We assert that the violations at the site should constitute penalty assessment higher than the bare minimum, but why is the negotiated settlement amount less than half of the minimum amount that could be levied? Fairhope LLC continuously and habitually violated the Department’s rules for months and failed to properly implement BMPs after receiving a formal NOV from the Department, why is the Department letting this violator off easy with a pittance of a fine? Why should the Department, “in the spirit of cooperation” choose to “resolve this matter amicably,” when Fairhope LLC has shown little reasonable cause for leniency?

We also have concern as to the vagueness of language in the consent order in regard to sediment removal and/or remediation as listed on page 7 of the order, that such must be done “in a manner acceptable to the Department.” What measures shall be considered acceptable to the Department? Further, the Consent Order does not clearly establish what will be cleaned up on the site. Sediment has infiltrated not only the bottom of Fly Creek, making navigation impossible for many who live on the creek, but it has also covered wetland areas adjacent to the site. We suggest that it is very much in the public interest for the Department to clearly define the type of remediation that shall be acceptable to take place at this site. We also suggest that the plans submitted by Fairhope LLC for remediation be available for review and comment to aid the Department in decision making as to the most appropriate solution.

In conclusion, we must stress that the Consent Order fails to properly consider the seriousness of Fairhope LLCs offenses and the degree of care manifested by Fairhope LLC in determining the amount of penalty. We affirm that the penalties imposed by ADEM upon Fairhope LLC are inadequate due to the duration, severity, and continuous nature of said violations. It is our contention that the Department should implement penalties that are consistent with the serious violations documented on this site and should not decrease penalty amounts to such ridiculously low amounts in avoidance of possible legal proceedings. We also assert that the remediation requirements outlined in the consent order are vague and unclear, and that the Department should not only clarify its remediation requirements, but also allow the public to see and comment on any remediation plan put forth by Fairhope LLC.

Thank you, in advance, for your consideration of these comments. If you have any questions or need additional information, please do not hesitate to contact us.

Sincerely,

Casi (kc) Callaway
Executive Director & Baykeeper

McNeil Road Development Consent Order Comments

September 23, 2009

James E. McIndoe, Chief of Water Division
Alabama Department of Environmental Management
PO Box 301463
Montgomery, Alabama 36l30-l463

Re: Consent Order - -CWP (number not given in public notice), McNeil Road Development, LLC (McNeil Road Pit), NPDES AL0076031

Dear Mr. McIndoe:

We are Mobile Baykeeper, a twelve year old nonprofit organization with the mission of providing citizens a means to protect the beauty, health and heritage of the Mobile Bay watershed. We are submitting comments on the consent order to McNeil Road Development, LLC for failure to submit a timely application for NPDES permit renewal on behalf of our board, officers, staff, and more than 3,500 members. We are of the opinion that the Department has failed to faithfully implement the Alabama Environmental Management Act and has imposed a penalty ($2,000) that is insufficient to address the violations of the permittee.

Alabama Code § 22-22A-5(18)c. (2006 Rplc. Vol.) requires that “in determining the amount of any penalty, the Department must give consideration to the seriousness of the violations, including … the standard of care manifested by the violator.” The Consent Order identifies that McNeil Road Development “failed to achieve compliance with the terms and conditions of the permit” through their failure to file a complete application for permit reissuance 180 days prior (September 1, 2008) to the permit expiration date (February 28, 2009). The Consent Order also decrees that because of the lack of automatic continuation of the permit as a result of the failure to file for reissuance, all discharges from outfall 001 Jackson Creek and groundwater at the McNeil Road Dirt Pit on or after March 1, 2009 shall be unpermitted and shall remain so until the date of the permit reissuance. In our estimation, from March 1, 2009 up to the date of signature by the permittee of this Consent Order(August 14, 2009) there were 167 days of unpermitted discharges from the McNeil Road Dirt Pit to Jackson Creek and groundwater.

The Department intends to impose a civil penalty of $2,000.00 to settle the permittee’s compliance issues outlined in this Consent Order. Alabama Code § 22-22A-5(18)c. (2006 Rplc. Vol.) requires that “any civil penalty assessed or recovered under paragraph a. or b. of this subdivision shall not be less than $100.00 or exceed $25,000.00 for each violation… Each day such violation continues shall constitute a separate violation for purposes of this subdivision.” If the minimum penalty assessed ($100) was levied for each day of unpermitted discharge through the date of the Consent Order, the amount due would be $16,700.

Mobile Baykeeper asserts that the Consent Order fails to properly consider the seriousness of the violation and the degree of care manifested by McNeil Road Development, LLC in determining the amount of penalty. We affirm that the penalties imposed by ADEM upon McNeil Road Development, LLC are inadequate due to the duration of said violations. It is our contention that the Department should implement penalties that are consistent with the spirit of the Alabama Environmental Management Act.

Thank you, in advance, for your consideration of these comments. If you have any questions or need additional information, please do not hesitate to contact us.

Sincerely,

Casi Callaway                                                                                                             Donna Jordan
Executive Director & Mobile Baykeeper                                                                  Program Director

Mobile Long Range Transportation Plan

Stockton Lakes Comment Letter Template

October XX, 2009

District Engineer
U.S. Army Engineer District, Mobile
Attention: Regulatory Division, Inland Branch
Post Office Box 2288
Mobile, Alabama 36628-0001

RE: Public Notice Number SAM-2009-1111-SMZ

Dear Sir or Madam:

Please accept these comments on the proposed filling of 121.8 acres of wetlands and impoundment of 13,557 feet of streambed in Aiken, Flat, and Rains Creeks for the construction of 4 recreational lakes in Stockton, AL by Stockton at Highway 59, LLC. I have serious concerns about the proposed project’s direct and indirect impacts to water quality, wetlands, wildlife habitat, and potential effects on the Tensaw River watershed.

Wetlands within this area of Baldwin County are a finite resource, and already under pressure from residential and commercial development. This proposal marks the 3rd time an application for large-scale fill and impoundment has been submitted for this site and I am very concerned about plans for further development at the property. In light of the project site’s proximity to critical areas of the watershed, the ecological significance of the area’s wetlands, and potential degradation to water quality, the Corps should undertake a full and critical National Environmental Policy Act review. A project of this scale warrants an environmental impact statement that fully assesses the cumulative and secondary impacts of the proposed wetlands fill and impoundment on Aiken, Flat, and Rains Creeks. I would also request that a public hearing be held to give local residents the opportunity to learn more about the project and provide additional comment.

Thank you for the opportunity to comment.

Sincerely,

[Your Name]

cc: Alabama Department of Environmental Management
 

Stockton Lakes Comments

October 13, 2009

District Engineer
Inland Branch
U.S. Army Engineer District, Mobile
P.O. Box 2288
Mobile, AL 36628-0001

RE: Public Notice No. SAM-2009-1111-SMZ, Stockton at Highway 59, LLC

To Whom It May Concern:

We are Mobile Baykeeper, a twelve year old nonprofit organization with the mission of providing citizens a means to protect the beauty, health and heritage of the Mobile Bay watershed. We are submitting comments on the application by Stockton at Highway 59, LLC for filling and impounding of wetlands and waters in conjunction with the construction of dams to create four recreational lakes on Flat Creek and tributaries to Aiken Creek and Rains Creek in Stockton, Baldwin County, Alabama on behalf of our board, officers, staff, and more than 3500 members. We have serious concerns about the proposed project’s direct and indirect impacts to water quality, wetlands, and wildlife habitat, as well as potential effects on the off-site receiving waterways and associated wetlands and future implications from the wetland impacts. Mobile Baykeeper respectfully requests a denial of this permit application as submitted.

In deciding whether to issue a Section 404 permit, the Corps must apply the Environmental Protection Agency's (EPA) Section 404(b)(1) Guidelines (Guidelines) whose purpose is to restore and maintain the chemical, physical and biological integrity of the waters of the United States. As required by the Clean Water Act (CWA), the Guidelines specify where and under what conditions dredged or fill material can be discharged lawfully. Section 230.10(c) prohibits discharges that will cause or contribute to significant degradation of the waters of the United States. The creeks intended to be impounded flow into Hastie Lake which then empties into the Tensaw River. The Tensaw has been designated an Outstanding Alabama Water. According to the Alabama Department of Environmental Management, high quality waters that constitute an outstanding Alabama resource, such as waters of state parks and wildlife refuges and waters of exceptional recreational or ecological significance may be considered for classification as an Outstanding Alabama Water (OAW).

The impoundment and inundation of wetlands and streambed in and around Aiken, Flat, and Rains Creeks constitutes a serious threat to water quality in the Tensaw River watershed through alteration of the area’s hydrology. Sedimentation and erosion from construction of dams pose more immediate threats to water quality in the watershed. Future construction of boat ramps, marinas, roads and any other access points/facilities to make the lakes viable recreational fishing areas will add further opportunity for degradation of these water bodies.

Section 230.10(b) of the Guidelines also prohibits discharges that will jeopardize threatened species. This area of Baldwin County is known to be habitat for alligators, black bears, various species of waterfowl and watersnakes, as well as Alabama Red-Bellied Turtles, a federally listed endangered species. As such, the preliminary statements listed in the public notice that “the proposed activity will have no effect on any listed endangered or threatened species” is presumptuous until a clear determination can be made by the U.S. Fish and Wildlife Service on the project’s potential impact to any present species.

Mitigation for this project, as outlined in the public notice, is unsatisfactory for a project of this scope and due to the presence of high quality wetlands within the project footprint. Mobile Baykeeper continues to maintain that all mitigation for wetland impacts on a given site should be within the closest vicinity to the affected area. We recommend any mitigation take place within the 8 digit HUC catalogue unit, preferably within the 12 digit HUC subwatershed, to the wetlands that have been disturbed so as to provide the most minimal impacts to hydrology within the site’s surrounding drainage basin. A large-scale mitigation as required by this site would be better suited to the affected Mobile-Tensaw watershed, rather than offsite, in protecting the Tensaw for the effects of this development.

Of foremost concern about this project is the lack of sufficient study of the site. The National Environmental Policy Act requires preparation of an environmental impact statement prior to major federal actions that significantly affect the quality of the human environment. The permit decision here requires preparation of an EIS because of the scale of the proposal and magnitude of its potential impacts on the environment. The project, located on a 5,000 acre parcel of land, will eliminate at least 121.8 acres of wetlands and destroy over 13, 557 linear feet of streams.
The lack of clear information about the scope of the project and its associated impacts should duly show the absolute necessity for an EIS. When Cooper Land Development proposed a development on this parcel in 2003, Public Notice AL03-00285-H, we called for an EIS due to the nature of that project. In September of 2003 the Corps announced their intention to prepare a draft EIS for that project to ensure compliance with NEPA requirements. Cooper Development then withdrew their application, most likely because they anticipated the Corps’ finding would not allow permit issuance due to the scope of that particular project. Although this new proposal makes no mention of residential development at this time, an EIS is warranted because of potential long-term impacts to the Tensaw watershed from this project. Mobile Baykeeper must insist that no permit be issued for this project without a full National Environmental Policy Act review, which should include an environmental impact statement which thoroughly evaluates all direct, indirect, and cumulative project impacts.

We also request the Corps hold a public hearing on this project. We believe there is sufficient public interest and significant potential environmental impact to warrant a hearing. Such a hearing will ensure that local citizens shall have an opportunity to learn more about the project and voice their support or concern.

Thank you in advance for your consideration of our comments. If you have any questions, please feel free to contact us at 251-433-4BAY (4229).

Sincerely,

Casi Callaway                                                                       Donna Jordan
Executive Director & Baykeeper                                             Program Director

cc: Alabama Department of Environmental Management
United States Fish and Wildlife Service
Ben Bailey, President, Stockton Civic Club
Frank Burt, County Commissioner, District 1
Wayne Dyess, Baldwin County Planning and Zoning Department
Joe Faust, State Representative
Marc Keahey, State Senator
Steve McMillan, State Representative
Trip Pittman, State Senator
Harry Shiver, State Representative

Taylor-Wharton Cryogenics, LLC Consent Order Comments

July 29, 2009

Wm. Gerald Hardy, Chief
Land Division
Alabama Department of Environmental Management
P. O. Box 30l463
Montgomery, Alabama 36l30-l463

Re: Consent Order for Taylor-Wharton Cryogenics, LLC – Theodore, Mobile County

Dear Mr. Hardy:

We are Mobile Baykeeper, a twelve year old nonprofit organization with the mission of providing citizens a means to protect the beauty, health and heritage of the Mobile Bay watershed. We are submitting comments on the consent order for Taylor-Wharton Cryogenics located in Theodore, AL on behalf of our board, officers, staff, and more than 3,500 members. We are of the opinion that the Alabama Department of Environmental Management has failed to faithfully apply the provisions of the Alabama Environmental Management Act for this project’s violations and has imposed a penalty ($15,000) that is insufficient.

As a result of the Department’s January 27, 2009 site visit, Taylor-Wharton was found to have committed the following violations, as listed in the Consent Order:

failure to properly mark or label containers of hazardous waste and universal waste (three counts), close containers of hazardous waste, universal waste, and used oil (three counts), mark containers of hazardous waste with an accumulation start date, properly document weekly inspections (two counts), comply with requirements for on-site treatment of hazardous waste, post required emergency information next to the telephone, provide adequate hazardous waste training and document same (three counts), containerize waste fluorescent lamps, and document accumulation time for universal waste.

According to Ala. Code § 22-22A-5(18)c. (2006 Rplc. Vol.), in determining the amount of any penalty, the Department must give consideration to the standard of care manifested by such person. The Consent Order identifies that Taylor-Wharton “did not exhibit a standard of care commensurate with applicable regulatory requirements until notified by ADEM.” We find that Taylor-Wharton displayed a repeated failure to exercise the degree of care necessary to comply with Department regulations that demonstrates a reckless and/or intentional disregard of the probable consequences. Taylor-Wharton endangered its employees and the public safety as a result of the lax or nonexistent implementation of a employee hazardous materials training program as well the poor management, record-keeping, and control of hazardous waste materials stored onsite at this facility. As a result of this negligence we insist that the current fine levied ($15,000) is an insufficient penalty in relation to standard of negligence that was displayed by Taylor-Wharton Cryogenics LLC and the length of time that negligence was ongoing, according to Taylor-Wharton’s own records as was found during the January 27, 2009 inspection.

In conclusion, we must stress that the Consent Order fails to properly consider the degree of care manifested. We acknowledge that Taylor-Wharton regained compliance within a month of receipt of their official NOV. However, we affirm our concern that the penalties imposed by ADEM upon Taylor-Wharton Cryogenics are inadequate to be a successful deterrent to preempt future violations. We are also curious as to what schedule the Department has for future inspections at this facility to determine compliance and adherence to the terms of the Consent Order.

Thank you, in advance, for your consideration of these comments. If you have any questions or need additional information, please do not hesitate to contact us.

Sincerely,

Casi Callaway                                                                           Donna Jordan
Executive Director & Mobile Baykeeper                                       Program Director