Jamestown Villas complaint to EPA 01.19.10

EPA Region 4,

Please accept this citizen complaint on behalf of John L. Wathen and The Friends of Hurricane Creek.

This complaint will cover many days and show how both ADEM and the city of Tuscaloosa are both negligent in their performance of their duties to enforce the CWA at Jamestown Villas. Due to the size of the evidence being presented, I will use more than one e-mail to assure no problems in receiving them.

On Oct. 9 2009 Mr. Chad Christian removed a “Stop Work Order” from Jamestown after making these statements “I performed a follow-up inspection the Jamestown Villas site this morning. I observed and documented a number of improvements to the BMPs as well as the implementation of an outflow control device on the detention pond. Therefore you are permitted to resume full construction activity on the site, provided that your firm continues to monitor BMP performance and maintenance very closely. (from a letter in ADEM files)
1. On Oct. 7, I inspected the site. I found silt fences improperly installed and with holes throughout the project along Stone Creek… (see… pdf Jamestown villas 10.07.09)

2. I re-inspected the site on Oct. 10.09.09 and found the same deficiencies and documented massive loads of offsite sediment in Whitley’s Lake. (see.. pdf Jamestown Villas 10.11.09)

This leads me to the following conclusions…
a. Mr. Christian did NOT make a thorough inspection as he claims... or,
b. Mr. Christian needs supplemental training in proper BMP installation and maintenance.
c. The city of Tuscaloosa is in need of federal oversight as well as ADEM. Tuscaloosa is not implementing the conditions of their storm-water permit by consistently permitting projects known or suspected to violate the TMDL for Hurricane Creek.
i. In the case of Jamestown Villas, John McConnell, head of Tuscaloosa Planning Department made statements on the city record that the planners were skeptical of the plan and were suspicious that it would cause these exact problems. He then stated for the record that since the developer had spent a lot of money on the project, they HAD to give him the permit.
ii. At the time of Mr. Christians release to Jamestown Villas he states that “full construction” may be reassumed. There was NO approved NPDES permit for the facility. Tuscaloosa has an obligation to insure the projects in their jurisdiction follow all state laws. Permitting facilities not in compliance and without proper state permitting should be viewed as serious by EPA.
iii. In my opinion, the city has laid themselves open to a variety of actions from EPA, ADEM , and civil complaints.
iv. In an inspection report dated 12/14/09 authored by Gerald Martin and Josh Lang, there were many deficiencies noted and cited as violations. Mr. Christians assumption of compliance is proven wrong by Hurricane CREEKKEEPER and ADEM inspectors.

There is, a turbidity report dated 11/12/09 authored by Josh Lang and Jennifer Klepac show a significant violation with 69 NTU upstream and 235 NTU downstream and 290 in the lake directly across the road from Jamestown Villas. These results were after a 3” inch rain event.

A similar report submitted by McGuire and Ass. Show 9.46 NTU upstream and 14.9 NTU downstream. I submit that McGuire did not take the samples where they claim or there is an outright campaign of misinformation in my opinion stated by McGuire.

On Nov. 23 Mr. Michael J. McGuire affirmed in a letter to ADEM that
1. All BMPs are in place and properly maintained including sediment barriers, sediment basin, earth berms, diversion channels, and storm inlet protection.
2. All finished grades have permanent vegetative cover established.
3. All on site areas that do not have planned construction activities within the next 13 days have temporary vegetation in place.
4. He goes on to say that the sediment brush barrier in UT of Hurricane Creek will be removed and the stream channel returned to it’s pre-construction condition.
5. He further states that Jamestown Villas appears to be in compliance with ADEM regs “at this time”
On Nov 10, I inspected the site and found the discrepancies shown in PDF Jamestown Villas 11.10.09

I inspected again on 12/08/09 and photographed the same violations as on 11.10.09. (see pdf Jamestown Villas 12/08/09)

The conditions at the site were exactly as they were on the 11/10/09 visit. That indicated some problems with the signed letter from Mr. McGuire. If his statements are true then the only scenario would be that Jamestown repaired all deficiencies between 11/10/09 and 11/23/09 when Mr. McGuire signed the letter and then went out and returned them to the state of non-compliance shown in pdf 12/08/09 when I returned. I would have to believe that Mr. McGuire never saw the site and he is taking the word of untrained inspectors. Tracy Chris is the signer on many reports throughout the Tuscaloosa County area. His name appears in many reports for this watershed that have been called into question for validity.


I inspected the site again on 01/05 and 17/10 and found the site to be non-compliant in many areas. (see pdf 01/17/10)

In a letter dated 12/29/09 signed by Mr. Micheal McGuire, he states that
1. All solid waste and containers, treated wood, and all debris other than brush resulting from clearing site has been removed from the facility and properly disposed of at an off-site location.
2. All perimeter silt fences have been repaired, replaced or maintained as required. New ‘silt’ (sic) has been installed and properly trenched where needed.
a. I agree with this statement as written as there is new slit installed into the creek with every rain event)
b. In fact the views shown in my pdf will reveal many flaws Mr. McGuire denies exist. (see pdf trash piles 01/05/10 and pdf 01/17/10)

The trash shown in the photos is from new construction somewhere else and hauled into this site. Note the roofing shingles, cut off 2x4s and plywood normally found in roof construction. Unless they are hanging a roof in the air out there, this material should NOT bee seen here.

It is my opinion that this site is failing in many ways. It is also my opinion that ADEM and the city of Tuscaloosa are also failing here. This site operated for many months with the approval from the Tuscaloosa planners and engineers. The city council also has some responsibility in this for allowing the project to proceed with no state approved permit and flaws in the engineering as admitted to by John McConnell, head city planner.

EPA should begin an investigation as to the validity of submitter reports by McGuire at once.

As of this writing, none of the actions implemented or initiated by ADEM, Tuscaloosa inspections, or EPA have had any deterrent effect on this violator. We respectfully ask EPA to direct an investigation immediately into the responsibilities of all 3 agencies.

Working without a permit

Burns Construction still has no permit for Jamestown Villas and continues to work on excavating.

Slide show

Letter to EPA by JLW

I went back to my files after our visit. It turns out that Trick does, in fact hold the NPDES for Covington Villas. The signage in this PDF shows a different owner. That is why I was confused. I did not intentionally mislead you.

What this does show though is the fact that Burns IS tied to the Covington Villas site and has for some time shown no regard for environmental restraints.

                                                               This practice of duality in ownership and control over developments is a big problem here. A developer mass excavates the site and leaves it then sells lots to other contractors. Those contractors, Burns in this case, then violate the requirements and both sides then cry "it's not my fault".

Williamsburg is one of these. I remember your statement that until the site is reclaimed, the NPDES owner is responsible. It was my understanding that until Williamsburg reaches total reclamation the NPDES can not be terminated. Is that the case?

The city allows and even encourages this and then they do not enforce the local stormwater ordinances.

Case in point...

On 10/07/09 I photographed an inspectors truck parked next to failing BMPs with sediment in the street. On 10/11/09 and photographed the site again after a rain. No repairs had been made to the BMPs and sediment was evident in the drains. Here he did not see me and no warnings were issued.

On 10/12/09 I encountered the same inspector standing in a carport in Spring Valley. He recognized me when I took his photo and called the developer to warn him that I was on site and that he would have to issue a warning since I had seen him. NOT that he was in violation, but that he had been seen doing nothing. The developer called me to ask why I was there and inform me of the warning and the inspectors statements.

It seems that Tuscaloosa has no intention of holding contractors accountable unless forced to by my presence or outside pressure from EPA. I resent this action by the city even though it enforces my earlier beliefs that they are facilitating this ongoing violations through total negligence.

Once again, I wish to point out that the Tuscaloosa storm-water permit has NOT been revised to accommodate the TMDL for Hurricane Creek. This plus the consistent lack of accountability should make them accountable to ADEM or EPA for non-compliance.

Rainfall data for Tuscaloosa

Mr. Burns, Jamestown Villas claimed there was 10.5 inches of rain in two days that caused the erosion problems at his development. Below are the rain statistics for Tuscaloosa. There is not one month with a 10.5 inch total. September had 9.17 which is a long way from 10.5 inches in two days.

September had one period from 09/18 to 09/21 which saw 6.32 inches over a 4 day period.

I am not sure where Mr. Burns got 10.5 inches in two days but it was NOT in Tuscaloosa and certainly not just at Jamestown Villas.

Suit, criminal charges target developer

The city of Tuscaloosa has issued a stop work order on construction at Jamestown Villas located at the end of Sixth Street East.

By Jason Morton Staff Writer

Published: Saturday, October 17, 2009 at 3:30 a.m.
Last Modified: Saturday, October 17, 2009 at 12:09 a.m.

TUSCALOOSA | Northport-based Burns Construction Co. faces a civil lawsuit and misdemeanor criminal charges over erosion issues at the site of Jamestown Villas, a 23-acre residential development off Crescent Ridge Road.

AT ISSUE

Charges: The city issued an order to stop work on a subdivision because of
erosion-control concerns, but says Burns Construction Co. ignored the order and continued working.

the developer says: The only work done after the stop-work order was to improve erosion control and says the site has been found to be in compliance with soil erosion rules.

A.C. and Doris Whitley filed the lawsuit in circuit court, claiming soil runoff from the site has damaged their adjoining property.
The criminal charges stem from Burns’ alleged refusal to comply with a stop-work order the city issued, citing erosion control violations. The Office of the City Engineer issued the order on Sept. 25.
Jimmy Burns, the owner and developer of the 90-unit garden home subdivision, said the court actions are the result of political and personal agendas.
“Any runoff was because of excessive rainfall,” Burns said, noting the extreme rainfall totals that West Alabama has tallied in recent weeks. “You can do all that you can do, but it’s not going to stop [the runoff from] 10.2 inches of rain in two days. ...“This is all a political ploy, just for some people to get their name in the paper.”
But City Engineer Joe Robinson said the municipal complaint was filed after the city learned Burns had continued to work on the Jamestown Villas site after being served with the stop-work order.
“He removed the stop-work order sign and then he continued to work on items other than the erosion control,” Robinson said.
Burns is denying the allegations, saying that his only work on the site following the stop-work order was to improve erosion control measures.
“I intend to fight [it] to the fullest,” said Burns, who pleaded not guilty Oct. 5 and is scheduled for a hearing in
November, “because I’m right and I’m going to prove I’m right.”
Burns also said he has spoken with the Whitleys, Cumberland Road residents who own 28 acres adjacent to the Jamestown Villas site, and said he believes they were pushed into the lawsuit.
Burns would not say who he thought was behind the lawsuit, however.
The suit, filed Oct. 2, claims that since June, when Burns Construction began clearing the land for the subdivision, soil, mud and debris has been washing onto the Whitleys’ property.
“The quantity of the silt, sediment and mud from the [Burns’] development is so great that it has caused substantial harm to the recreational and aesthetic attributes of [the Whitleys’] property,” the suit said. “The stream, wetland area, and ... pond on the [Whitleys’] property has been destroyed by the accumulation of large quantities of mud and silt.
“The release and discharge of sediments, mud and silt ...recurs upon each rainfall event.”
Burns said the site has been inspected by engineers for the city of Tuscaloosa, the Alabama Department of Environmental Management and the U.S. Army Corps of Engineers, and all have found the development to be in compliance with current soil erosion control rules. The city lifted the stop-work order on Oct. 9.
Reach Jason Morton at jason.morton@tuscaloosanews.com or 205-722-0200.

Comments on Jamestown Villas erosion controls

From Mike Mullen,


This
was a difficult but by no means impossible construction site.
1) poor drainage planning - detention ponds and a drainage system
directing runoff to them should be in place before there is any mass
grading save for that needed to create the pond and drainage system -
in one of the pictures a large amount of runoff was bypassing the
drainage system - why?

 2) inadequate project phasing - project phasing should get the sediment ponds
and drainage in place first, then the access roads and then phase in areas
where dwellings are to be located - from the aerials it does not appear
that this happened
3) inadequate erosion control - the perimeter slopes did not appear to
have any erosion control, slopes this steep need erosion control blankets
and a drainage system that keeps water off the slopes
4) excessive dependence upon silt fence - silt fence is a stop-gap solution
when erosion control fails or when it rains before vegetation or mulcj can
be put in place - unfortunately it is seen as a cure all by the unknowing -
anytime I see double lines of silt fence I immediately sense drainage
system problems or failure and inadequate or absent erosion control
5) improper placement of silt fence - it was hard to tell but it looked like
the silt fence ran up and down the hill in places and was not on the contours -
also, in areas this steep silt fence should have wire backing - I failed to see
it but perhaps it was present - it wouldn't have mattered anyway as the silt
fence was not adequately trenched in
6) improper installation of silt fence - the silt fence did not appear to be on the
contours, was not properly trenched in, was probably not the proper type of fence
and there was little flat area for water to pond behind the fence

It is impossible to say what parties are at fault - was it flawed engineering (was there
any engineering)?, did the contractor fail to install measures in a timely manner
where and how they were designed and specified in the plan?, did the engineer
inspect the site or have a designated person inspect the site routinely to confirm
that measures were properly installed and maintained.

While it is impossible to say why the project was screwed up or who is responsible
it does appear that the responsible regulatory entities let the situation get out of hand.

Preventing more offsite transport of pollutants should be the first priority. The second
priority should be mitigation of the damage already done. But will anyone be willing
to see that the mitigation is done. And, if post-construction planning and BMPs are
as lacking as construction BMPs appear to have been (given the amount of accumulated
sediment) it appears that damage to the stream will continue with ongoing degradation.

Stream restoration is an expensive measure but in some states the developer would
have to pay for removal of the sediment and any stream restoration deemed necessary
for restoration of the stream to as near as possible pre-development conditions.
However, in these states where state and local environmental regulators are more
proactive it is much less likelt that this mess would have been allowed. But, this is
Alabama. ADEM is reactive not proactive and streams are being damaged and
"destroyed" as this one has been all across Alabama.

Michael William Mullen, CPESC
Choctawhatchee Riverkeeper

CPESC - Certified Professional in Erosion and Sediment Control.
I have been a CPESC since 2000. My registration number is 2129.

That means that I have 1) met certain basic requirements (education,
experience etc.), 2) have passed the CPESC examination and
3) have maintained professional development education requirements.

Work after SWO at Jamestown

This video was shot on 09/26 & 28, 09 after Tuscaloosa ordered a "Stop Work"

City Halts Work on New Subdivision.

City halts work on new subdivision

TUSCALOOSA | The city has halted work on a housing development off Crescent Ridge Road because of alleged erosion control violations.

City Engineer Joe Robinson said the stop-work order was issued to Burns Construction on Friday because of violations at Jamestown Villas, a 90-unit garden home development under construction off Crescent Ridge Road.
He said the city is also checking on a claim that the Northport-based company violated the stop-work order, but had no further comment 'because of the possibility of court litigation.'
Jimmy Burns, owner of Burns Construction, could not be reached for comment Monday.
The City Council annexed the 23-acre site in October 2008 despite concerns that erosion could be a problem on the property. At the time, city staff members said the developer would have to mass grade the site, which could result in erosion.
The city had approved the development a year earlier, however, and the planning department determined that it would be unfair to deny the annexation because Burns had invested in the property after being led to believe it would be approved, and that he was taking steps to prevent erosion. The annexation was necessary because the project required connecting to the city's sanitary sewer system.
'Our engineering department has been working with the development since the start to work out a plan to try and reduce [the erosion],' said John McConnell, the city's deputy director of planning and economic development.
But John Wathen, who heads Friends of Hurricane Creek, an advocacy group for the protection of the creek and its watershed, claimed that work was being done on the property after the city issued the stop-work order.
'They were out there all weekend,' Wathen said, 'and they were still excavating as of Monday morning.'
The site at the intersection of Sixth Street and Vassie Drive is in the Hurricane Creek watershed and a tributary of the creek adjoins the property.
Wathen was among those who objected to the project when the city was considering the annexation.
Whether the activity Wathen witnessed was workers taking steps to prevent further erosion was unclear.
When Burns was seeking the annexation, the development's engineer, Jack McGuire, said Burns would build a detention pond and berms and take other measures to prevent erosion. And Burns said he would build the detention pond first, before disturbing any other soil on the property.
But Wathen said that whatever steps have been taken have not been enough to keep silt and runoff from entering Hurricane Creek.
On an Internet Web log, mudbuster.blogspot.com , he started, Wathen said he flew over the construction site on Aug. 27.
'From the air I could see silt fences down
with siltation leaving the site,' Wathen wrote. 'It was obvious that the conditions had been failing for some time due to the amount of mud seen outside the silt fences. ...
'I could see from the air that there appeared to be a large deposition of debris in the [Hurricane Creek tributary] itself.'
While it is likely that the recent heavy rains have exacerbated the problem, the Home Builders Association of Tuscaloosa said battling erosion is a constant problem, no matter the weather.
Rick Jarman, president of the association, said developers need extra time to repair fences damaged after heavy rainfalls, but it's not always Mother Nature causing the problems.
Sometimes, contractors will remove the fences to gain access and then simply not replace them.
'It's an ongoing problem,' Jarman said. 'As land gets higher and lots get smaller, you've got to get men in and out and materials in and out. ...
'It's a constant battle trying to keep them up.'
Reach Jason Morton at jason.morton@tuscaloosanews.com or 205-722-0200.

All rights reserved. This copyrighted material may not be re-published without permission. Links are encouraged.

From Jamestown To Hurricane Creek

A walk from Jamestown Villas to Hurricane Creek.
Taken by Hurricane Creekkeeper



Larger images

Jamestown Villas 09.24.09

From an e-mail sent to Chad Christian and Joe Robinson today, 09/25/09...
"Chad,

"John, I personally walked the entire site and perimeter this afternoon. I did see the uncompacted slope over the debris that you refer to below, and this will not be accepted"

I took your quote to mean that covering the "woody debris" along the back side of Jamestown would "not be accepted".
From your e-mail on 09/18/09...

As you can see, Mr. Burns did not get the message. Today I photographed and video recorded the crew dumping and pushing dirt over the "woody debris". THe video and complete set of photos will be posted to the mudbuster blog as soon as the video up-loads.
http://www.mudbuster.blogspot.com 

My question is this... If this will not be accepted, how are they going to remove it if they keep covering it up? Large clods of red clay are rolling down the hill, jumping the debris pile, and slamming into the silt fences. Some is jumping the fences and landing in the flood plane. Removing the debris from an already unstable bottom adjacent to the flood plane is going to cause more problems, possibly even worse that we have already seen. In my opinion, this could have been prevented if you and Joe had kept your promise of diligence.

No one has worked on any BMP improvements since at least two rain events that can be seen. The only activity I saw was more excavation and covering of the "woody debris".

Look at the lake below. There has been no rain in two days now. The lake is dying daily. A small number of small fish have died already. Last week I found a Snapping Turtle with bright red lesions on his jaw. It is my belief that Jamestown Villas is causing irreparable damage to the lake and the receiving stream below.

What action has the city taken? What action is the city going to take to stop this? Tuscaloosa gerrymandered this into the city and now what are you going to do about the ongoing disaster off-site?

On 09/21/09, I asked for a time to review the site disturbance plans approved and any revisions.
"I would like to set time to view the Jamestown VIllas site disturbance plan in it's original state before any revisions recently added to the document. I would also like to see the revised edition of that plan."

To date, you have not answered.

I ask again...
I would like to set time to view the Jamestown Villas site disturbance plan in it's original state before any revisions recently added to the document. I would also like to see the revised edition of that plan.
When can you set that up? Should I get EPA to ask for them?

Continuing to ignore my request and questions is only going to create more problems for Tuscaloosa."

Camden Lake 09/23/09

This update was sent to EPA region 4 this morning.

Photos

"Susan,

Here is an update to the Camden Lake complaint.

I have been watching a site in Camden Lake where there was an approved plumbing inspection on a foundation ready to pour with concrete on a site where no building permit had been issued. I turned this site in 2 weeks ago to the city 311 line. Nothing changed. I sent the complaint directly to Joe Robinson and Chad Christian pointing out that there were 7 house construction sites disturbed there with either failing BMPs or non-existent BMPs. Warnings were written for two and removed while the sites were still in noncompliance. I was there yesterday doing follow-up to a previous complaint and saw a city truck I took to be an inspector. I did not get a good look at his face but the tag # was a municipal tag 45400. I encountered him at 2:35 in the afternoon. As he drove through the subdivision, he never stopped to get out, he never issued any warnings, he did not consult with the concrete contractors who had made the mess even bigger since I left earlier. For once in a very long time, I did not have my camera with me. The reason I find the inspectors presence mentionable is this... The city inspectors have been trained and according to Joe Robinson have been ordered to cite infractions and post warnings first then stop work orders. None of this is taking place here as it should.

I went home and picked up my camera and returned. The inspector was gone but I documented where at least three cement trucks backed out into poorly grassed areas and washed out their trucks. The toxic cement residual washed down the streets and into the drains. It looked like two of the trucks stopped in the street and finished washing out their chutes and truck bed IN THE STREET. The inspector drove through the wet cement residue and passed right by. No warning, no stop work order, no action at all. When I first turned this site in there had been significant disturbance with off site tracking of mud. There was NO city permit or adequate BMPs. Yesterday there was a permit dated "issued: 09/17/09", the same day I called in the complaint to Joe. No permit, no warning, no stop work order, no action at all.

The BMPs at that location have never been properly installed and have been turned into Joe and Chad. I showed them the photo of the passing inspection card on the failing site, no action has been taken. The water leaving Camden Lake had a gray color similar to the cement residue seen entering the drains.

Joe sent an inspector out on 09/18/09 who wrote up two warning notices out of seven that were in violation. I also sent Joe a complaint on Covington Villas, owned by Jimmy Burns of Jamestown Villas. Houses there have been out of compliance for months. In fact, every house on every subdivision owned by this person is in the same condition. There was no warning filed to date. To date it is still in terrible condition.

It is obvious, once again that Tuscaloosa has no intention of enforcing the law in regards to their permit.

I should also mention again that this location is under "Consent Order" with ADEM and this letter was marked received from EPA region 4 on 04/20/09. I wish to ask EPA to take action now for both the complaint at Camden Lake but also against Tuscaloosa for not enforcing the permit requirements as written, and not updating their permit to show compliance with the TMDL for Hurricane Creek.

Your Servant,
John L. Wathen,
Hurricane Creekkeeper
Friends of Hurricane Creek

Hurricane Creek and Black Warrior River

A vast majority of mud seen in the river passing through Tuscaloosa is coming from Hurricane Creek.

Developers, road building and coal mining are responsible.

Of all the impacts to Hurricane Creek, poorly planned and poorly regulated subdivision developers are the worst contributors to the problem.

Tuscaloosa has NO ordinance that regulates subdivisions pollution. A subdivision regulation was promised by John McConnell, city planner, that would be ready by Fall. As of now, second day of Fall, it has not even been drafted.

This is the same area over a year ago. Is anyone listening?

Noah's ARC. Flooding from poorly designed and planned subdivisions are the reason for flooding here. Tuscaloosa planned to fail and YOU, the tax-payer are paying for it!