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
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
