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