Friday, October 1, 2010

Citizen Complaint Jamestown Villas EPA region 4 Enforcement Branch,

To Jim Giattina
CC: Lisa Jackson.

Attn: EPA region 4 Enforcement Branch,

On 04/28/10 EPA Region 4 issues administrative order # CWA 04-2010-4760 to Jimmy Burns, Jamestown Villas (JTV) for site violations concerning BMPs and other miscellaneous issues.

No penalty was imposed with the order.

In the EPA order, certain requirements were made of the developer, that were never implemented.

1. BMPs are still in disrepair of non-existent in some places where needed.
2. Turbid and heavily silted discharge still occurs with every rain event as it did yesterday,  09/27/10.
3. While no corrections had been made upon inspection, it should be noted that road construction and drain work was ongoing in violation of CWA standards as well as the EPA order.

I submitted a complaint to this effect to Jim Giattina, EPA Region 4.

Subsequently EPA sent ADEM to reinspect the site on 08/10/10.

Inspector Roberts visited the site and reported some violations. It is my opinion that the inspector did not thoroughly inspect. His photos are primarily taken from distances and not along the creek where the majority of violations exist.
It is also my opinion that the inspector played down the seriousness of off-site as well as on site violations. He was only on the site for 1 hour 20 minutes.  That includes the arrival greetings as well as filling out paperwork before departure. In all I would suggest that he spent only about an hour doing the actual inspection.

He did not visit the lake below for off-site impacts. It is only a hundred yards or so from JTV. The lake is continuously filling in with silt from JTV. There are no other disturbances in the entire watershed of impact. 

Photo plate 02 in ADEM report photos shows the inlet protection taken from a distance.
Photos taken up close show multiple flaws with these including the installation and maintenance.

Plate 3 shows the entrance from Vassie Dr. Once again the shot is a wide one that does not show the extent of failing or nonexistent BMPs. That section of the site does NOT flow to any retention basin at all but discharges directly into Stone Creek.
Road construction has begun since the ADEM visit and no precautions made to keep the mud from leaving the road-bed.

Plate 4 shows the creek from the top of the hill and some distance away, just at the discharge from the Vassie Dr. entrance. He states that little of no sediment was seen and previously disturbed slopes have been grassed. He makes no mention that on the other side of the newly constructed road, the creek-bed is full of silt. Had he walked out into that grass he would have seen large rills and erosion gullies on the surface. Those rills lead to silt fencing that has fallen down long ago from the weight of the accumulated sediment. Just below the tree line on the creek, the sediment begins accumulating and is very heavy throughout the entire wetlands and flood planes leading to Whitley Lake.

Plate 5 is a long distance shot of the undersized retention basin and a skimmer. Had he inspected closely as he should have, he would have seen that the overflow and the pipe leading from the basin have long ago been piping from the pond directly around the skimmer and into the creek with no treatment.
All of the grass from this point to the end of the site bordering Whitley’s property is long ago dead. It is very sparse and allowing sheet flow of sediment from the site.

Plate 6 shows a rip-rap-lined channel leading away from the discharge and into failing silt fencing.
1.     The rip-rap is not a sediment control but an energy diffuser. It leads to fencing with holes under it large enough to roll basketballs under. I don’t think it will hold much sediment back in it’s current condition. I have been watching this hole for months and have reported it to EPA on more than one occasion. I can’t see how inspector Roberts missed it unless he did not inspect anything below the edge of the hilltop.
2.     Below this failed section lie more failures. Silt fencing that does not reach the ground, holes throughout, sediment blankets spread out over rotting tree debris that is in the riparian buffer zone for Stone Creek.

Plate 7 I see where he did follow a well-worn path to the failing fences below the outfall. He shows some holes but specifically does not show the silt fence that is over a foot off the ground. Where he shows the holes, he is still inside the fencing and does not show the sediment outside the fences leading to Stone Creek. The barrier in back is NOT attached to the ground and is lying on top of rotting trees that leave many conduits for sediment to leave the site.

Plate 8 he shows the fencing but only mentions that it is 2/3 full. No mention of the back fences seen falling and holding noting back from leaving the site.

Plate 9 he says “Silt fence needs maintenance” The silt fences her refers to was NEVER installed properly and never maintained. This also is in an area where NO retention exists. The water overflowing these fences comes from an area of the site disturbed in June of last year and has never been routed through any retention basin at all.

Plate 10 (final ADEM plate)
This plate does say that sediment does not appear to have been removed. Once again, if the inspector had walked just a few feet out of his comfort zone he would have noted the entire flood plane and wetland associated with this project is heavily inundated with sediment.

All in all, I believe that ADEM does not want to show the full extent of damage caused by this irresponsible permittee . If ADEM showed the full extent it would also show a serious lack of diligence on the part of ADEM for…
1. Not investigating this permit before issuance. It sat on an ADEM desk for months with no review while the developer was busy constructing his failure.
2. ADEM and Tuscaloosa City refused to take any action to stop him until compliance was met.
3. ADEM has, in my opinion downplayed the seriousness of this violator to cover their own inept permitting and enforcement. This site is only one of many used for the petition to remove the ADEM program. It now seems that EPA is also allowing the developer to get off with a slap to the wrist by issuing an prder with no penalty.

It is quite obvious to me that JTV has no intention of following the law unless forced.

Please find below, a series of photos taken just before the last ADEM inspection aerial photos of the entire site, along with a detailed report with photos after the ADEM inspection,

 I visited the site on a call from a landowner. He explained how Burns agreed to fill his land and grade it in exchange for space to dispose of unwanted dirt. He informed me that this was going on across the street as well. Although it is admirable for Mr. Burns to want to help, it is without permit and was never completed. This left the landowners with land too steep to use and impossible to maintain using household lawn equipment.
See pdf; JTV OFFSITE, 

plates 3-5, photos OS-6, - OS-10. The land West of 6th St. E. was filled as well but no complaints from landowner. This does not leave Mr. Burns with no responsibility to permit the fill under JTV.

During the visit and subsequent visit the next day, I found…
1. Multiple BMP violations that have been there since before EPA region 4 visit on 11/15/09, Mr. Don Joe, inspector. Silt fences down, non-existent, riddled with holes and inadequate throughout.
2. New road construction underway while existing violations go unresolved.
3. sediment in large amounts in the receiving stream, Stone Creek.
4. Offsite transport of bulk material to fill land not on the permit and without previous approval from Tuscaloosa or ADEM.
5. Large areas of the permit have been in disturbance since excavation began without proper permitting. No vegetative cover on land disturbed over 2 weeks.
6. Sediment basin is inadequate for amount of drainage.
7. Large tracts of the permit do NOT drain to basins of any kind. Those areas drain untreated to Stone Creek
8. Large rills and gullies throughout from inadequate cover and slope grades exceeding the permit design.
a.                   This site was approved by Tuscaloosa City Engineer under the agreement that the slopes would NOT exceed 3:1. I have measured the back slopes. Some measure as much as 27 inches to 3 feet, or 3:2+

9. On the West side behind a huge pile of unstabilized soil there is a new, unpermitted outfall leading into the woods and off the property.
(see pdf JTV 08/08/10 B)

10.          Heavy impacts to the Stone Creek, Whitley Lake, and 2 offsite deposits of unpermitted fill material.
 All of the above was documented 1 to 2 days before the ADEM inspection.
 On 08/20/10, I returned to the site in a light rain to find the following.

1. Upstream water was clear.
2. Downstream at Whitley Lake the water was extremely turbid.
a.                   There is no other disturbance throughout this entire drainage. ALL sediment and turbidity can be traced to JTV. (SEE PDF JTV 09/11/10 Aerials, Plate 4, photo A-7
3. Roadwork onsite had no bmps.
4. What drain covers that were there were not installed properly leaving no protection. (C-3, 4, 5, 6, of PDF JTV 08/20/10 rain) ((C-5 is looking downstream from Vassie Dr. entrance))
5. Vast areas of the site do not drain to any type of retention pond.
a.                   The area surrounding the Vassie Drive entrance drains to the creek directly as well as the entire back section of the site along the bank of Stone Creek. (photos C-7, - C-11 PDF JTV 08/20/10)

6. There is only one retention pond onsite. It is grossly undersized and failing to contain the outfall.
a.                   The pipes leading from the pond to the final discharge are not compacted. This has allowed water to follow that underground channel to a sediment laden, turbid discharge point on the slope above the discharge.
b.                  A second culvert tower was installed about mid point in the back slope. It also has compaction issues. The tower washed out underneath because it was installed improperly. It now leans at a noticeable tilt of several degrees off plumb. Burns filled it in with concrete rubble and it still stands today tilted and full of concrete.
c.                    Many areas drain mud to the creek without ever coming in contact with any retention at all.

7. Mr. Roberts, ADEM inspector, noted that slopes that were previously bare are now covered. I beg to correct him. While some slopes have fresh vegetative cover, many more acres stand bare as they have for over a year now.
8. BMPs throughout are inadequate, failing, or completely nonexistent.
9. Offsite discharge of known pollutants listed on the approved TMDL for Hurricane Creek occur with every rain event. This condition has existed since the first unpermitted disturbance in 06/09.
10.          All surrounding wetlands are now inundated with sediment.
11.          Whitley Lake is now inundated with silt and consistently turbid water.
12.          It is my considered opinion and confirmed by an erosion control specialist that the mass excavation of clay bearing many metals, silicates and introduction of fertilizers have changed the chemical make-up of the stream causing an Iron fallout throughout the stream bed. It does not exist above JTV. (Hurricane Creek is listed and an approved TMDL exists calling for an 87% decrease in Iron.
a.                   This permit not only is in violation for turbidity and offsite impacts due to mud, but also has caused an increase in the Iron content for Stone Creek

I recently spoke with Chip Crockett, ADEM stormwater enforcement. He informed me that since EPA has begun action (albeit non-deterrent action) ADEM will not spend any more resources on this site. I find that deplorable. This entire fiasco was caused by ADEM and the city of Tuscaloosa not doing their jobs. ADEM had a responsibility to take action and as usual failed us.

We came to EPA early on to seek help. To date even EPA has failed to take any action that has caused the slightest change in the operation at JTV. It is still in a non-complaint state after over a year of prodding from FoHC, several “courtesy visits” from ADEM, one inspection from EPA, and an administrative order with no penalty of deterrent value at all.

Please accept this complaint in the nature it is intended. We want to make clear that the entire process has failed.

Tuscaloosa City issued the site disturbance permit with certain stipulations. Stipulations that the contractor has to date ignored. Retention ponds were grossly undersized, Slopes that were guaranteed by city engineer Joe Robinson to be less than 3:1 far exceed that and cover large deposits of rotting tree debris. The city has taken no action to correct this and live up to their responsibility to the people of Tuscaloosa.

ADEM has a responsibility to regulate through permitting and enforcement of the CWA and Alabama codes approved by EPA.  ADEM has presented such a failure in this respect that FoHC and many others have petitioned to remove them from the process.

EPA is the last resort to fixing this, not only in Tuscaloosa, but all of Alabama. The conditions I have reported here exist all across Alabama while ADEM sleeps at the wheel.

We come to you for the last time on this complaint to ask for maximum penalty, maximum enforcement and deterrent action that will stop this developer from proceeding further without addressing his violations and sending a loud message to all developer in the area. Accountability is a must if you do business here.

Yours Respectfully,

John L. Wathen

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