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Overlook Estates Hearing Set


Danoinark

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In from Davy and Leon Alexander

All,

Well it has been a long time coming but I believe we are finally going to see the action taken that we have all been waiting on so patiently regarding the debacle at the Norfork Overlook Estates site.

Let me refresh your memories. The Developer scalped the site from the start allowing enormous amounts of silt and runoff to flow into the North Fork of the White River just below the Norfork Dam. That took place back in November of 2005. This destruction reached the news in February of 2006 and has been a topic of concern ever since. Keep in mind that this development was performed without securing a Stormwater Runoff Permit (NPDES) from the Arkansas Department of Environmental Quality (ADEQ). Filing for a permit also requires that the Developer file a plan showing how stormwater runoff will be prohibited from leaving the site. The regulations requires that "No Runoff Shall Leave the Site". It does not say that is O.K. for some runoff to happen. It says that there will be no runoff allowed to leave the site.

After numerous inspection visits from the ADEQ and numerous delays and inaction from the Developer, ADEQ Commissioner Marcus Devine issued an Emergency Order on April 28, 2006 with the following requirements.

ORDER OF REMEDIAL ACTION:

1. Homeport Land Company, LLC is hereby ordered to cease and desist from polluting the waters of the State and take all actions necessary to achieve this goal;

2. Homeport Land Company, LLC is hereby ordered to install effective erosion control measures to prevent sediment from leaving the site; and

3. Homeport Land Company, LLC is further ordered to take such remedial measures as may be necessary to remove any and all pollutants from the waters of this State and achieve full compliance with Arkansas Water and Air Pollution Control Act and the NPDES permit.

4. Failure to meet the requirements of the Order constitutes a violation of said Order and may be punishable by the imposition of civil penalties in accordance with A.C.A. - 8-4-103(B).

5. Nothing in this Order shall limit the rights of ADEQ to issue further orders or pursue any further enforcement actions for remediation, penalties or costs from any party.

Very strong Order and plain and easy to understand. Stop polluting the waters, install effective erosion control measures and remove the pollutants from the waters.

You would think at this point the message would be clear and that the Developer would understand that he is responsible for his actions and must take the necessary steps to stop the runoff and secure the site. Well, you would be partially correct. He did install a number of erosion control measures, all of which were undersized for the size of the site and the amount of slope involved. In short, after spending several months installing these devises the Norfork area received a 5" rainstorm and the erosion measures failed.

An ADEQ inspector visited the site after this event and filed a report dated August 11, 2006 that contains the following comments.

NPDES Compliance Inspection Report dated August 11, 2006

1. A storm water permit has yet to be issued for this facility.

2. This site visit was in response to citizen complaints that the site was adversely impacting water quality in the Norfork River.

3. Approximately 4.75 inches of rain was indicated in the rain gauge at the site entrance.

4. The entire site was in bad condition during this site visit. Virtually all sediment traps were full or had failed during a recent storm event. Silt fences all over the site had been overwhelmed by sediment.

5. Waters of the state including the "North and South Tributaries" and the Norfork River were being severely impacted by sediment eroded from the site.

6. The operator is in violation of the Emergency Order of the Director LIS 06-060.

7. A memorandum including recent photographs of the site is included with this inspection report.

They were disturbing pictures of the site. No amount of words can adequately describe the mess that was caused by improperly designed and failed controls and the Norfork ran red with the silt and sediment from the site. As a result of this Inspection Visit and the obvious violations of the Order "to cease and desist from polluting the waters of this State", ADEQ took the required steps to enter a lawsuit against the Developer in this matter. ADEQ filed Complaint #CV-2006-227-4 on August 17, 2006 against Homeport Land Company with five very lengthy counts, all which says that the Developer is in violation of the Emergency Order. This complaint was filed by William G. Snowden, ADEQ attorney.

At this point most of the repairs ceased pending any orders or actions by the court. In the meantime, ADEQ Engineers worked on a plan that would secure the site and prevent any future runoff. This was a well thought over plan and consisted of about 22 pages based on site measurements and calculations as to size and location of devices necessary to prevent the sediment runoff from leaving the site. When presented to the Developer, it was dismissed as too costly and no action was taken by the Developer to put these recommendations in place.

Since about September 2006, the site has laid unprotected and continues to pollute the Norfork River with every rain event. There has been no obvious attempt by the developer to make any necessary repairs, maintain the devices in place or install new properly designed devices. It has been a matter of urgency with no real progress. When asked, ADEQ had to defer to the court system. And to further add to the frustration, there was no court date set. The only response was that the case would probably come up before the Judge sometime in late 2007. This is not acceptable and never was, but working with the system has been very restrictive. There was little that could be done.

After discussing this situation with a number of managers and directors at ADEQ, I was contacted by Bill Snowden in mid-November regarding the status of the case. I was told that he had been in negotiations with the Developer's attorney and that they had reached an understanding that they would enter a "Mutual Consent Order" that would have the Developer make the necessary repairs in accordance with the ADEQ's written plan. This would be done immediately and in advance of any court appearance. At the time the only thing remaining was to have everyone involved, including Trout Unlimited that by this time had entered the suit as an injured party, sign the Order. Needless to say, I was excited and anxious to spread the word of real progress. However, shortly after I found out that Bill Snowden had resigned from ADEQ and was no longer on the case. I felt that we had reached another impasse.

After discussing the situation with the ADEQ Legal Supervisor, I was told that a new attorney would be assigned to this very high profile case and they would be in contact with me. Well, true to her word, I received a call from Dawn Guthrie who was taking over the case. She informed me that she was taking this very seriously and wanted to review the documents and visit the site prior to making any projections. Well, again true to her words, Ms. Guthrie arranged a site visit that included the ADEQ engineer that developed the ADEQ's site plan and the ADEQ Inspector that had visited the site on many occasions. Well, there were no surprises. The site remained unprotected. There had been no additional work performed. And the site had deteriorated from the last Inspection Visit.

After the site visit and a review of the documents, including the lack of action to prevent sediment runoff or any repair work to the existing devices, Ms. Guthrie decided to pursue a Court Hearing at once. After several weeks of working through the court docket, she was able to schedule a Court Hearing date. This is really the Big News. At long last, we will have a Court Hearing on the charges relating to the violations of the Order. Hopefully, the judge will decide that a violation has occurred and that the Developer is to be held responsible for his actions and will be required to secure the site. Any penalties or judgments would come later at a court trial to settle the ADEQ suit. For now, we should all be thankful if the judge orders that the Developer take care of the site immediately.

The Court Hearing is scheduled for Friday, March 16, 2007 at 9:00 am in the Baxter County Court Building in Mountain Home, AR. The presiding judge will be Judge Isbell. As a matter of coincidence, this is the Friday of the NAFF Sowbug Event and the day before the Friends of the Norfork Trout Hatchery general meeting. It should be open to the public. However, I am sure that space will be limited. But if you have the opportunity to attend, I would encourage you to do so. Please feel free to contact me for additional details. There will be an article appearing in the Baxter Bulletin covering the Hearing and they should announce the Hearing prior to the date that is set.

It has been a long and difficult struggle for all us that have seen the destruction and damage caused by this development. I sincerely hope that, at the minimum, we will finally see steps to secure the site from the destructive runoff and we can start concentrating on the mammoth job of the the clean-up of our precious Norfork River.

Best Regards,

Leon Alexander

Glass Has Class

"from the laid back lane in the Arkansas Ozarks"

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