February 15, 2019

VIA HAND DELIVERY

H. Lanier Brown, II, Esq.
Dr. Samuel Miller
c/o Environmental Management Commission
P.O. Box 301463
Montgomery, AL 36130-1463

Director Lance LeFleur

Alabama Department of Environmental Management
P.O. Box 301463
Montgomery, AL 36130-1463

Re: Follow up from EMC Presentation on December 12, 2014

Dear Commissioners and Director LeFleur,

I would like to follow up regarding a presentation made to the Environmental

Management Commission (EMC) by Gasp’s Executive Director, Michael Hansen, on December
14, 2018 and questions and statements made by the three of you and ADEM staff relevant to that
presentation.
Gasp’s position is, and has always been, that listing the 35th Avenue Site on the NPL will
bring much-needed relief to the Collegeville, Fairmont and Harriman Park communities. You
have heard from several Gasp members and residents of these communities about their health
issues, the environmental issues they still face daily and about how the actions uncovered
through USA v. Gilbert have and continue to hurt them.
As a brief review, on December 14, 2018, Gasp presented to the EMC to renew our
request from December 14, 2014 that the EMC advise the Director that ADEM’s position on
NPL is wrong. The 35th Avenue Site scored 50 on the Hazardous Ranking System (“HRS)”,
which is sufficiently high (namely, almost twice the required score of 28.50) to be included on
the NPL. Because the 35th Avenue Site scored sufficiently high on the HRS Record, findings of
the ATSDR report should not influence the Director’s position on listing the 35th Avenue Site on
the NPL. Further, the EMC should advise the Director, given all information that has come to
light, that his position of not taking issue with the HRS Documentation record should be
controlling, and as such, should require the Director to support listing the 35th Avenue Site on
the NPL.
I reviewed the draft meeting minutes from the December 14, 2018 meeting and identified
several issues that I will discuss below. I hope that this letter serves to open up meaningful
dialogue and a path forward.


We must discuss the history of the proposed listing of the 35th Avenue site on the NPL as it
is grounded in facts and evidence.
I have been especially disappointed that Director LeFleur and Commissioner Brown have
chosen to represent a revisionist history to the EMC as it pertains to all of the events leading up
to and after the proposed listing of the 35th Avenue Site.
I’d like to begin, Commissioner Brown, with your statement: “whatever action we take
must be based on whether or not there’s a risk to public health1.” As I know you all are aware,
EMC members are “charged with developing the state's environmental policy, hearing
administrative appeals of permits, administrative orders and variances issued by the Department,
adopting environmental regulations and selecting and advising an ADEM director.” I know you
are also aware that the mission at ADEM is to assure for all citizens of the State a safe, healthful,
and productive environment. The EMC is not charged with assessing risk posed to public health.
However, the EMC is charged with developing the state’s environmental policy and adopting
environmental regulations. While public health and the environment are certainly intertwined,
the EMC is specifically charged with environmental considerations. As such, ADEM and the
EMC should, as EPA does practically when proposing to list sites on the NPL, focus on the
exhaustive findings in the HRS Documentation Record.
Additionally, Director LeFleur, you stated that you would “like to take strong exception
to the implication that I, or any person in the Department was in any way connected with any
unethical or criminal behavior2.” Merriman Webster provides several definitions for “connect,”
one of which is “to establish a communications connection.” I am happy to provide a more
exhaustive list than the following, but below is merely a snapshot of your and Commissioner
Brown’s interactions with Joel Gilbert and David Roberson, who were convicted of 6 charges,
including bribery and conspiracy:
1. ADEM initially did not oppose listing (Letter from Lance R. LeFieur, ADEM
Director to Heather McTeer Toney, USEPA Region 4 Administrator. June 11,
2014, EPA Docket ID No. EPA-HQ-SFUND-2014-0623-0003).
2. Sep. 25, 2014 Balch & Bingham attorney Joel I. Gilbert (JIG) recorded in billing
record: “Prepare for, travel to Montgomery, Alabama, and attend meeting with
ADEM and Mr. David Roberson regarding NPL listing and proposed strategy;
return travel to Birmingham; conference call with S. McKinney regarding
summary of meeting; conference call with Mr. Roberson regarding ADEM
meeting; conference call with SE+C regarding meeting with ADEM.” (Exhibit
551).
3. Sep. 25, 2014 Balch & Bingham attorney Joel I. Gilbert (JIG) recorded in billing
record: “Prepare for and attend meeting with ADEM and Mr. David Roberson
regarding GASP petition; * * * ” (Exhibit 552).
4. Sep. 26, 2014 Balch & Bingham attorney Joel I. Gilbert (JIG) recorded in billing
record: “Review ADEM's September 8th correspondence to Governor Bentley
regarding potential for NPL listing; * * * conference call with Ms. Carrie
McCollum (Governor Bentley’s office) regarding recent NPL listing and issues

Meeting Minutes of EMC, Dec. 14, 2018, p. 57, available at
1

http://www.adem.state.al.us/commission/minutes/12-14-18EMCMeetingDraftMinutes1-16-19.pdf.
2 Meeting Minutes of EMC, Dec. 14, 2018, p. 60, available at

http://www.adem.state.al.us/commission/minutes/12-14-18EMCMeetingDraftMinutes1-16-
19.pdf.

2320 Highland Ave. S., Suite 270 • Birmingham, AL 35205 • gaspgroup.org


related to upcoming EPA public meeting regarding NPL listing; conference call
with Messrs. Vernon Barnett, Trey Glenn, David Roberson, and S. McKinney
regarding recap of meeting with ADEM and commitments of ADEM in
responding to NPL listing; research regarding PRP issue for Ms. McCollum.”
(Exhibit 551).
5. Sep. 29, 2014 Balch & Bingham attorney Joel I. Gilbert (JIG) recorded in billing
record: “Attend meeting with Messrs. Vernon Barnett and David Roberson
regarding coordinating with ADEM on contesting NPL listing; meet with Mr.
Barnett and SE+C regarding coordinating comments with ADEM on NPL listing;
* * * ” (Exhibit 551).
6. On October 1, 2014 EPA sent email to ADEM Director Lance LeFleur indicating
that it understood his Sep. 16, 2014 email to concur in the listing of the 35th
Avenue Site on the NPL conditioned on the State not having to participate in
funding the cleanup. (Exhibit 2014.10.01.1; Exhibit 2014.10.01.2). ADEM
Director Lance LeFleur sent email to EPA stating that EPA misconstrued his Sep.
16, 2014 email and that ADEM does not concur in the listing of the 35th Avenue
Site on the NPL, conditionally or otherwise. (Exhibit 2014.10.01.2)
7. In response to questions raised during Gasp’s presentation to the EMC on
December 12, 2014, Director LeFleur sent a letter to Gasp on January 23, 2015
stating “ADEM did not and does not, at this time, take issue with the EPA HRS
Documentation Record.”
8. On January 26, 2015 AEMC Chair Lanier Brown sent email to ADEM Director
Lance LeFleur expressing concern over LeFleur’s statement to GASP that ADEM
does not object to the HRS Document and the potential damage such a statement
could have on appeal re ADEM’s position on EPA NPL designation of 35th
Avenue Site. (See Exhibit 2015.02.19.1).
9. Feb. 3, 2015 Balch & Bingham attorney Joel I. Gilbert (JIG) recorded in billing
record: “ * * * meet with Mr. Lanier Brown and SE+C regarding strategy; * * * ”
(Exhibit 551).
10. Feb. 18, 2015 Balch & Bingham attorney Joel I. Gilbert (JIG) recorded in billing
record: “ * * * conference call with Mr. Trey Glenn regarding Mr. Oliver
Robinson's meeting; conference call with Mr. Lanier Brown regarding AEMC
materials; conference call with Mr. Glenn regarding AEMC meeting.” (Exhibit
551).
11. Feb 18, 2015 AEMC Chair Lanier Brown and AEMC member Scott Phillips met
with Trey Glenn and Representative Oliver Robinson at Daniel George
Restaurant. (Exhibit 551; Exhibit 2015.02.28.1; Testimony of Oliver Robinson
and Scott Phillips in United States v. Gilbert, et al., No. 2:17-cr-00419 (N.D. Ala.
July 3 & 5, 2018).
12. Feb. 19, 2015 Balch & Bingham attorney Irving W. Jones, Jr. (IWJ) recorded in
billing record: “Edit Lanier Brown white paper with attachments regarding
Director Lance LeFleur’s comments on the proposed NPL listing.” (Exhibit 551).
13. Feb. 19, 2015 Balch & Bingham attorney Joel I. Gilbert (JIG) recorded in billing
record: “Conference call with Mr. Lanier Brown regarding meeting with Mr.
Oliver Robinson; conference call with Mr. Trey Glenn regarding draft materials
for Mr. Brown; draft various white papers for Mr. Brown for AEMC meeting; * *
* ” (Exhibit 551).

2320 Highland Ave. S., Suite 270 • Birmingham, AL 35205 • gaspgroup.org


I am writing this letter, with the evidence presented, to show that Director LeFleur and
Commissioner Brown have presented a revisionist history of ADEM’s position on NPL listing
for the 35th Avenue Site. Joel Gilbert asserted demonstrable influence on ADEM’s position. As
you saw in 1-13 above, it is clear Joel Gilbert connected with Director LeFleur and
Commissioner Brown. Commissioner Brown directly confronted Director LeFleur about stating
to Gasp that Director LeFleur does not object to the HRS Document. From that point, the
misplaced reliance on the “lack of a public health risk” at the site became the basis for objecting
to listing the site on the NPL. This is disingenuous and offensive to the many community
members who have come before this body and shared their own personal stories that directly
contradict this assertion. Commissioner Brown and Director LeFleur, I am asking you both to
acknowledge these facts when engaging in a discussion about the NPL; not only for the benefit
of the residents within the 35th Avenue Site, but for the benefit of all Commissioners to be
operating with a full set of facts and an accurate timeline.

The Director’s Position on NPL is erroneous.

Commissioner Brown, as an attorney, I am certain you know how to read and apply the
requirements of regulations. Director LeFleur, I am also confident you and all ADEM staff are
able to do the same. I do not need to explain to either of you that 40 C.F.R. 300.425(c) outlines
methods for determining eligibility for NPL.
“(c) Methods for determining eligibility for NPL. A release may be included on the NPL
if the release meets one of the following criteria:
(1) The release scores sufficiently high pursuant to the Hazard Ranking System
described in appendix A to this part.
(2) A state (not including Indian tribes) has designated a release as its highest priority.
States may make only one such designation; or
(3) The release satisfies all of the following criteria:
(i) The Agency for Toxic Substances and Disease Registry has issued a health advisory
that recommends dissociation of individuals from the release;
(ii) EPA determines that the release poses a significant threat to public health; and
(iii) EPA anticipates that it will be more cost-effective to use its remedial authority than
to use removal authority to respond to the release.” 40 C.F.R. §300.425(c) (emphasis
added).
Inclusion on the NPL requires that only one of three possible elements be met. I am confident
that the three of you are aware that the HRS score was sufficiently high to list the 35th Avenue
Site on the NPL.
However, maybe the rest of the Commissioners have been led astray by statements made
at the last meeting, and perhaps elsewhere, that more emphasis should be placed on
interpretations of the ATSDR Health Consultation3 and the “Jefferson County Department of

3
Gasp submitted comments on ATSDR’s findings. See Lewis, H., Gasp Comment on ATSDR:
Community Soil Exposures: 35th Avenue Site (2015). However, it should also be noted that ATSDR did,
in fact, conclude that “past and current exposures found in surface soil of some residential yards could
harm people’s health. Children are especially at risk.” ATSDR Health Consultation: Evaluation of
Surface Soil and Garden Produce Exposures: 35th Avenue Site. Available at
http://www.atsdr.cdc.gov/HAC/pha/35thAvenueSite/35thAvenueSite_HC(PC)_%2007-22-2015_508.pdf
(last visited Sept. 27, 2015) at 1.ATSDR then concludes that past and current exposures to lead in the
surface soil of some yards could harm people’s health, especially children and the developing fetus of a
pregnant woman. Id. at 2. Finally, ATSDR also concludes that long-term exposure to PAHs found in the
surface soil of some residential yards is at a level of concern for lifetime cancer risk. Id. at 3.

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Health Study4,” which Gasp has publicly criticized5. A plain reading of (c)(3) of 40 C.F.R.
§300.425 shows that the ATSDR Health Consultation referred to by Director LeFleur and
Commissioner Brown is not relevant to, nor the same thing as, the “health advisory6” in (i). A
consultation is due no consideration whatsoever under the rule. The JCDH “health study” is not
an “EPA” determination that a release [does not] pose a significant threat to public health.
Therefore, it is due no consideration whatsoever. Nothing about the Director’s reasoning for
objecting to the NPL is supported by the Rule.
It should be clear that where the EMC and ADEM are charged with focusing on the
environment, such a high HRS score and the findings with the HRS Documentation Record (with
which Director LeFleur expressly stated that he “did not and does not, at this time, take issue
with the EPA HRS Documentation Record”) should lead the EMC to the conclusion that listing
the 35th Avenue Site on the NPL is not only appropriate, but also necessary, and should certainly
not be opposed by ADEM.

There needs to be an honest, factual dialogue about the difference between an emergency
removal, which is currently occurring at the 35th Avenue Site, and listing the site on the
NPL

I am confident that Director LeFleur and ADEM staff are certainly aware of the key
differences between an emergency removal and listing a site on the NPL. However, it is clear

4 It is confounding why Commissioners Brown and Miller and Director LeFleur are familiar with the
JCDH “Health Study” but have never cited a 2014 University of Alabama at Birmingham study that
showed increased pre-term births and low birth weight in children living within five kilometers of the
industrial plants situated in the North Birmingham neighborhoods. That study concluded that “[t]he
present investigation suggests fugitive emissions from industrial point sources may increase the risk of
adverse birth outcomes in surrounding neighborhoods. Further research teasing apart the relationship
between exposure to emissions and area-level deprivation in neighborhoods surrounding industrial
facilities and their combined effects on birth outcomes is needed.” Porter, Kent, Su, Beck, and Gohlke.
(2014), Spatiotemporal association between birth outcomes and coke production and steel making
facilities in Alabama, USA, Environmental Health, http://www.ehjournal.net/content/13/1/85
5 The bulk of JCDH’s presentation relied on data from death certificates alone and did not take into

consideration morbidity data such as hospitalization rates, or ER visits. This has broad implications about
both the significance and the generalizability of JCDH’s analysis. Additionally, comparing the cancer
rates of African-Americans in 35207 to the cancer rate of African-Americans in the rest of Jefferson
County is bad science: Cancer rates among African-Americans are already higher than the white
population who are not exposed to the same extent. Therefore, the rates appear statistically similar to one
another. We already know that cancer risk in Jefferson County is higher than the rest of the state of
Alabama. What science tells us is that health inequities among African-Americans are due in part to the
disparity in environmental exposures everywhere. This problem is not confined arbitrarily to one ZIP
code. See Michael Hansen, Lack of Health Research Stands in the Way of Progress, Gasp Blog (Aug. 25,
2014), https://gaspgroup.org/lack-health-research-stands-way-progress/
6 An ATSDR Health Consultation is not a “public health advisory.” “Since 1986, ATSDR has been

required by law to conduct a public health assessment at each of the sites on the EPA National Priorities
List. The aim of these evaluations is to find out if people are being exposed to hazardous substances and,
if so, whether that exposure is harmful and should be stopped or reduced.” See ATSDR, Public Health
Assessments and Consultations, available at https://www.atsdr.cdc.gov/hac/pha/pha_foreword.asp; See
40 C.F.R §90.2. An ATSDR health advisory, which is mentioned in 40 C.F.R. §300.425, is “a statement
by ATSDR containing a finding that a release poses a significant risk to human health and recommending
measures to be taken to reduce exposure and eliminate or substantially mitigate the significant risk to
human health.” 40 C.F.R. §90.2

2320 Highland Ave. S., Suite 270 • Birmingham, AL 35205 • gaspgroup.org


from the minutes from the December meeting that confusion is still present that impedes the
EMC’s ability to advise the Director that his position on NPL is erroneous.
Steve Cobb, with ADEM’s land division stated that “[EPA’s actions at the 35th Avenue
Site] have been under the removals program, which is able to go in and go ahead and remove
things and be done with it, as opposed to a remedial program which is more of a study and
analysis type approach, and it necessarily takes longer7.” EPA states publicly on their website
that “Removal responses are common at Superfund Sites when the contamination poses an
immediate threat to human health and the environment8.” Further, in their April 2, 2014 letter to
Phillip Davis, Land Management Division Director at ADEM, EPA stated “Long-term action is
needed to remediate risks at the Site, and the EPA is only able to obtain funds for long-term
remedial actions, or for oversight of private parties performing these long-term remedial actions,
if those sites are on the NPL9.”
Why would ADEM tout the emergency removal as an approved path forward, a process
which EPA states occurs because of an immediate threat to human health and the environment, if
ADEM insists that there is no public health risk at the 35th Avenue Site? The statements and
positions are at odds with one another. Commissioners must understand that the emergency
removal that the Director seems to be touting as superior to NPL is completely financed by
taxpayers. NPL gives EPA the ability to hold financially accountable responsible parties. The
35th Avenue Site has 5 potentially responsible parties who could be jointly and severally
responsible for the contamination. I would be happy to come back and present to the EMC on the
unique benefits of listing a site on the NPL that are not possible under an emergency removal (or
send follow up information).
Lois Gibbs, the “mother of Superfund,” has stated herself in a letter to Administrator
Wheeler “the on-going remediation is a ‘fools plan.’ Cleaning the surface of yards while the
black smoke bellows out into the air and the piles of ash below across the community is not
going to protect the community. It’s a feel good, we’re doing something approach to a
horrendous problem.” Time and time again, zealous rebuttals have been prepared against Gasp
(with the assistance of Joel Gilbert, in 2014). But I would strongly encourage the EMC and the
Director to take to heart the words of Lois Gibbs: a mother who fiercely advocated for her
children and community that eventually led to the evacuation of over 800 families in Love Canal,
NY and the creation of Superfund itself.

Regardless of what the Director’s view of the efficacy of listing on the NPL was in 2014,
Superfund is operating more quickly and efficiently under the new Administration

Director LeFleur seems to rely on an assertion that there is no responsible party to

finance clean up. Mr. Cobb also suggested that NPL site cleanup has moved at a glacial pace in
recent history. These assertions could very well be fair and accurate pre 2017. However,
President Trump has prioritized Superfund cleanup as part of his Administration. As of July of
2018, since Trump took office in January 2017, EPA officials have cleaned up all or part of 13

7
Meeting Minutes of EMC, Dec. 14, 2018, p. 72, available at
http://www.adem.state.al.us/commission/minutes/12-14-18EMCMeetingDraftMinutes1-16-
19.pdf
8
EPA, “Non-Time-Critical Removal Actions” Available at https://www.epa.gov/superfund/non-
time-critical-removal-actions
9
Letter from Franklin Hill, Director, Superfund Division, EPA (April 2, 2014) (on file with
Author).

2320 Highland Ave. S., Suite 270 • Birmingham, AL 35205 • gaspgroup.org


listed sites, compared with nine sites cleaned up by the Obama administration in 2015 and
201610.
For example, to ease Director LeFleur’s concerns about any of the PRP’s ever actually
paying their fair share, EPA is now playing hard ball. In December, EPA rented out a 500-person
auditorium in Portland for "corralling the responsible parties to get things moving." Top EPA
officials from Washington, D.C., discussed the federal agency's expectations for the cleanup as
part of the negotiating process with some 150 past polluters (the potentially responsible parties
for the site)11."
Just as revisionist history needs to be avoided, we also need to look at the benefits of
NPL listing at the 35th Avenue Site under President Trump’s prioritization of Superfund
cleanup12. Director LeFleur, I urge you not to cling to whatever limitations may have existed in
2014. The Commission needs to understand that the reality presented by you and Mr. Cobb has
changed under President Trump. The ATSDR Health Consultation and JCDH “health study” are
and always have been an excuse and distraction that were borne from innapropriate industry
influence in this community. Director LeFleur, you may take exception to that characterization,
but the evidence speaks for itself. It is a new day and no one needs to move forward more
desperately than this community. The 35th Avenue Site must be listed on the NPL. For the
aforementioned reasons, the Director’s position on NPL was wrong in 2014, and it’s even more
wrong today, given the benefit of hindsight and a new EPA with a renewed focus on Superfund
cleanup and efficiency.
I implore all Commissioners to consider these facts and evidence-supported history of the
beleaguered NPL listing for the 35th Avenue Site, and advise the Director that he must change
his position to support listing the 35th Avenue Site on the NPL.
Finally, I renew Michael Hansen’s invitation for any of you to come to Birmingham and
meet with any of the mothers, fathers and children who desperately want the relief that NPL
could bring to them and their community. Director LeFleur, at Gasp we also hope that we can
keep open the lines of communication. However, to do so, we must communicate transparently,
factually and fairly.

Sincerely,

Haley Colson Lewis

CC: Kevin McKinstry

Thomas P. Walters, P.E.
Ruby L. Perry, D.V.M.
Mary J. Merritt
John (Jay) H. Masingill, III

10
Available at https://www.dailysignal.com/2018/07/24/trumps-epa-outpaces-obama-in-
cleaning-up-hazardous-sites/
11
Available at https://pamplinmedia.com/pt/9-news/413082-313699-epa-plans-formal-meeting-with-
willamette-river-polluters-to-pressure-them-to-get-started-on-superfund-cleanups.
12
Press Release, U.S. EPA, Superfund Task Force Announces One-Year Anniversary Accomplishments
and Plan for Year Two (July 23, 2018)(available at https://www.epa.gov/newsreleases/superfund-task-
force-announces-one-year-anniversary-accomplishments-and-plan-year-two-2)

2320 Highland Ave. S., Suite 270 • Birmingham, AL 35205 • gaspgroup.org