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Environmental groups call for ADEM director’s resignation or termination

Brandon Moseley

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Eleven Alabama environmentalist groups signed off on a letter Monday calling for the resignation or firing of Alabama Department of Environmental Management Director Lance LeFleur.

The groups claim that the bribery and corruption trial U.S. v. Gilbert, et al yielded many disturbing revelations, including the failures of leaders at the Alabama Department of Environmental Management (ADEM) and the Alabama Environmental Management Commission (AEMC) to avoid conflicts of interest with those whom they regulate.

The groups claim that in many other instances, ADEM Director Lance LeFleur has failed to lead the Department in a manner that advances its official mission “to assure for all citizens of the State a safe, healthful and productive environment.”

LeFleur’s annual job evaluation and public comments were due on Monday, July 30.

Black Warrior Riverkeeper emailed its evaluation of Director LeFleur to the Personnel Committee of the AEMC, which oversees ADEM. The letter calls for LeFleur’s resignation or termination for what the groups claim is his consistent failure to lead and advance ADEM’s mission.

Groups signing Black Warrior Riverkeeper’s letter include: Alabama Rivers Alliance, Cahaba River Society, Cahaba Riverkeeper, Choctawhatchee Riverkeeper, Environmental Defense Alliance, Friends of Hurricane Creek, Friends of the Locust Fork River, Gasp, Little River Waterkeeper, and Tennessee Riverkeeper.

The groups claim that sworn testimony in the recent public corruption case has revealed bias and corruption at both the Environmental Management Commission (“EMC”) and ADEM.

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“In order to repair that trust, there must be new leadership at ADEM. When an organization like ADEM stumbles, its director must take responsibility,” the groups wrote. “Director LeFleur has failed to lead the Department in a manner that advances the mission of ADEM “to assure for all citizens of the State a safe, healthful and productive environment.” He must resign or be terminated.”

“Instead of carefully weighing all the evidence and allowing the Department to make decisions that would protect the health and safety of North Birmingham residents, Director LeFleur’s testimony at trial shows how he failed not only those residents but his job,” the letter states. “He apparently did not express opposition to EPA’s efforts to clean up toxic pollution at the 35th Avenue Superfund Site in North Birmingham, until lawyer Joel Gilbert and lobbyists David Roberson and Trey Glenn, among others, began to exert pressure on behalf of their clients Balch & Bingham and/or Drummond Co. When Governor Bentley and the EMC joined in, the Director succumbed to that pressure and began to publicly and actively oppose EPA’s efforts. Even worse, he sent a letter to EPA in his capacity as Director opposing EPA’s cleanup in North Birmingham. Although trial testimony indicates that Director LeFleur may not have known this, the letter he sent was drafted at least in part by Gilbert, whose client Drummond Company, had the most to lose if EPA expanded the cleanup and placed the 35th Ave. site on the National Priorities List. Gilbert apparently routed the draft letter through Governor Bentley’s office, which then sent it to Director LeFleur to send.”

“Director LeFleur testified that it was not uncommon for lobbyists/consultants to draft letters for him to sign,” the letter continued. “The closeness of the relationship between the Director and those he is supposed to regulate should disqualify him from this important position of public service. He is ultimately answerable not to Drummond Co. or Balch & Bingham, but to the citizens of Alabama, for whom he is supposed to ensure a safe, healthful and productive environment.”

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The groups said that they. “Were disappointed, but not entirely surprised, to learn that Director LeFleur and ADEM were part of a leak of a planned EMC public presentation.” “Testimony and evidence offered in U.S. v. Gilbert indicates that Director LeFleur and his staff, along with others, communicated and/or discussed a proposed presentation submitted by Gasp, with parties outside the Department, and subsequently discussed the substance of that proposal.”

“There is no suggestion that the EMC or ADEM solicited or neutrally evaluated all available information and reached a considered decision,” the letter stated. “They apparently took talking points directly from the industry’s lawyer and uncritically adopted them as their own.” “These actions reflect poorly on the judgment of the Director and the Department. These actions reinforce the appearance of favoritism and bias on the part of the Director and ADEM. There is no indication that the Director or his staff reached out similarly to residents of North Birmingham or any other potentially affected parties.”

“The testimony in U.S. v. Gilbert suggests that fair play or neutrality at ADEM is currently a myth,” the environmentalists argued. “The Director and the Department have broken trust not just with us, but with the public that ADEM is supposed to serve. A group worried about health consequences in a poor, polluted area wanted to present information to state regulators about appropriate cleanup in the area — and the presentation was sent straight to a lawyer who represented one of the companies most likely responsible for the pollution.”

“The Director knew this and did not blow the whistle,” according to the letter. “Secretly sharing information with favored parties, then allowing their point of view to masquerade as the EMC’s or ADEM’s is beyond wrong. This subterfuge occurred outside the public view and was only exposed by a criminal prosecution where Director LeFleur and others were subpoenaed to testify.”

“Regardless of whether Director LeFleur’s tenure at ADEM ends, we ask the EMC to authorize a neutral, independent investigator to determine whether the actions revealed by U.S. v. Gilbert are an isolated event or represent routine practice at the EMC and ADEM,” the groups stated. “We ask the EMC to share the method and the results of this investigation with the public in order to begin the process of restoring the public’s trust. Finally, we ask the EMC to implement any procedures as necessary that will ensure that this kind of dishonesty and favoritism ends.”

They also accused Director LeFleur of failing to fully implement federal regulation from using criteria or methods of administering its programs or activities that subject individuals to discrimination because of their race or color, among other things. “Ensuring that ADEM complies with requirements of state and federal law and providing the public with valid policies to combat discrimination should have been key priorities for Director LeFleur and the Department. Evidently they were not. We urge the EMC to work with the ADEM Director to ensure that this issue is quickly and decisively addressed through valid rulemaking.”

“Rather than passively wait for an EPA investigation or further litigation, a director must take proactive measures to ensure that the Department has all necessary legal authority to meet EPA’s funding requirements. Delay invites the substantial risk of litigation, another EPA investigation, or the catastrophic loss of the Department’s federal funding,” the groups charged. “Director LeFleur’s failure in this regard reflects poorly on his job performance and should be considered in the EMC’s evaluation.”

The groups also complained that ADEM ranked dead last in per capita funding among state environmental agencies in a recent study published by the Environmental Council of States, just $10.85 per person, per year from 2013 to 2015. While Mississippi, Tennessee, Georgia and Florida’s general funds all contribute millions to their state environmental agencies, in recent years, ADEM has received little from the state’s General Fund and in one year actually had to return money (earmarked for scrap tire cleanup) to the General Fund. They claim that part of the Director’s job is to make the public case for the adequate funding of his agency.

They also accused ADEM and LeFleur of being soft on polluters. “When permittees’ interactions with ADEM after permit noncompliance involve warning letters, notices of violation, long compliance schedules, and nominal fines rather than meaningful enforcement actions, the message ADEM sends is clear. Occasional enforcement is a cost of doing business and is cheaper than investing in compliance.”

“ADEM’s mission is “to assure for all citizens of the State a safe, healthful and productive environment.” Director LeFleur has failed to lead ADEM in a manner that advances that mission,” the environmentalists claimed in their letter. “He must resign or be terminated. When the EMC puts together the appropriate search committee for his replacement, we ask that at least one representative from the undersigned organizations be a part of that committee.”

Brandon Moseley is a senior reporter with eight and a half years at Alabama Political Reporter. You can email him at [email protected] or follow him on Facebook. Brandon is a native of Moody, Alabama, a graduate of Auburn University, and a seventh generation Alabamian.

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Elections

Alabamians request more than 101,000 absentee ballots with 30 days left to apply

So far, 35,184 absentee ballots have been successfully returned for the general election.

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(APR GRAPHIC)

At least 101,092 absentee ballots have been requested so far in Alabama according to Secretary of State John Merrill, with just 30 days left to apply for an absentee ballot for the Nov. 3 General Election. So far, 35,184 absentee ballots have been successfully returned for the general election.

In order to protect the safety and well-being of voters, Merrill is encouraging those who are concerned about contracting or spreading the coronavirus to apply for and cast an absentee ballot.

Absentee ballot applications can be downloaded online or requested by visiting or calling your local absentee election manager’s office.

Voters may also contact the Secretary of State’s office at 334-242-7210 to request an absentee ballot application.

Due to the declared states of emergency, any qualified voter who determines it is impossible or unreasonable to vote at their polling place shall be eligible to check the box on the absentee ballot application that is most applicable to that individual. In the case none of the boxes are appropriate, voters can check the box which reads, “I have a physical illness or infirmity which prevents my attendance at the polls. [ID REQUIRED]”

For the Nov. 3 General Election, the deadline to register to vote is Monday, Oct. 19, the deadline to submit an absentee ballot application is Thursday, Oct. 29, the deadline to return an absentee ballot to the absentee election manager is the close of business Monday, Nov. 2, and the last day to postmark an absentee ballot is Monday, Nov. 2.

Voters who are eligible to vote pursuant to the Uniformed and Overseas Absentee Voting Act will have until Tuesday, Nov. 3 to postmark an absentee ballot.

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Voters concerned about COVID-19 are encouraged to select the box on the affidavit, which accompanies the absentee ballot, which reads as follows: “I am physically incapacitated and will not be able to vote in person on election day.”

Due to recently witnessed delays with the U.S. Postal Service, Merrill encourages voters interested in returning their ballot by mail to go ahead and make application for their absentee ballot. As a reminder, Merrill worked with the Legislature last year to pass Act 2019-507, allowing voters the opportunity to return their absentee ballot by commercial carrier in addition to U.S. mail.

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Corruption

Former Barbour County sheriff arrested, charged with taking money from sheriff’s office

Upshaw was charged with two crimes connected to taking more than $85,000 from several accounts that belong to the sheriff’s office.

Eddie Burkhalter

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(STOCK PHOTO)

Alabama Attorney General Steve Marshall on Tuesday announced the arrest of Leroy Davie Upshaw, the former sheriff of Barbour County, on charges that he used his office for personal gain. 

Upshaw, 49, surrendered to the Barbour County Sheriff’s Office on Monday and was released on bond, according to a Marshall’s office. He had served as sheriff until his term ended in January 2019. 

Upshaw was charged with two crimes connected to taking more than $85,000 from several accounts that belong to the sheriff’s office, Marshall’s office alleges. One charge alleges that he used his public office to receive personal financial gain and the other charge alleges that he used his office to obtain financial gain for members of his family. 

The Dothan Eagle reported in 2018 that Upshaw’s troubles began when the sheriff’s office was audited and cited for 11 errors, including one in which Upshaw gave himself the additional salary that had gone to the former work release administrator.

If convicted of the class B felony of using his office for personal gain, Upshaw could face up to 20 years in prison.

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Health

Governor: Alabama will get 1 million rapid antigen COVID-19 tests

The state is to receive the Abbott Laboratories BinaxNow rapid tests in phases over the next few months. The initial shipment is set to include approximately 96,000 tests. 

Eddie Burkhalter

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Abbott’s BinaxNOW™ COVID-19 Ag Card is highly portable, about the size of a credit card, and doesn’t require added equipment. (VIA ABBOTT)

Gov. Kay Ivey on Tuesday announced that the Trump administration is to send 1 million new rapid COVID-19 tests to Alabama, but the details on their use was still being worked out. 

Ivey’s office announced in a press release that the state is to receive the Abbott Laboratories BinaxNow rapid tests in phases over the next few months, and that the initial shipment is to be of approximately 96,000 tests. 

It was unclear Tuesday who will get the tests or whether the results will be required to be reported to The Alabama Department of Public Health (ADPH), however. In a statement Ivey said while we await a vaccine “providing Alabamians – especially our students and vulnerable citizens – with this free resource will be another critical tool in the toolbox to combat COVID-19.”

Our Office is working in coordination with Public Health as we firm up plans for distribution. We are working to ensure students and high-risk individuals have access to this resource,” said Gina Maiola, Ivey’s press secretary, in a response to APR’s questions Tuesday. 

Questions to ADPH on Tuesday weren’t immediately responded to. 

The U.S. Food and Drug Administration on Aug. 26 gave an emergency use authorization to Abbott laboratories for the rapid antigen tests, which is the first of its kind to require no lab equipment. 

The USDA on Sept. 18 reissued an emergency use declaration, changing wording to say that the tests are to be used “within the first seven days of the onset of symptoms” and that “testing facilities within the United States and its territories are required to report all results to the appropriate public health authorities.” 

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“Studies have shown that antigen levels in some patients who have been symptomatic for more than five days may drop below the limit of detection of the test. This may result in a negative test result, while a more sensitive test, such as RT-PCR, may return a positive result,” the Centers for Disease Control and Prevention said in guidance on the use of antigen tests

The Trump administration approved a $760 million contract with the company to produce about 150 million tests. 

“We’ll ship tens of millions of tests in September, ramping production to 50 million tests a month in October,” Abbott Laboratories said on the company’s website

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Other governors were making similar statements Tuesday about pending Abbott Laboratory tests coming to their states. 

President Donal Trump on Monday announced plans to ship 100 million of the tests to states based upon population. 

“Governors have the flexibility to use these tests as they deem fit, but we strongly encourage governors to utilize them in settings that are uniquely in need of rapid, low-tech, point-of- care tests, like opening and keeping open our K-through-12 schools; supporting critical infrastructure and first responders; responding to outbreak, specifically in certain demographics or locations; and screening of surveillance in congregate settings,” said Adm. Brett Giroir, the U.S. Department of Health and Human Services official in charge of COVID-19 testing for the White House’s coronavirus task force, speaking with Trump from the Rose Garden on Monday. 

The Abbott Laboratories rapid antigen tests, which use a swab and a small card and can provide results within 15 minutes, have some similarities to existing antigen tests now being used across Alabama, which use small machines to provide quick results. 

ADPH has struggled at times to get results from those existing rapid antigen tests, which are often used in non-traditional lab settings, such as nursing homes, universities and urgent care clinics, some of which aren’t accustomed to ADPH’s reporting process. 

Dr. Karen Landers, an assistant state health officer for ADPH, told Kaiser Health News last week that she was concerned about the undercounting of antigen test results, and that some providers were struggling to submit results.

“We can’t afford to miss a case,” Landers told the news outlet.

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Health

Delayed reporting caused spike in Alabama’s daily COVID-19 count

Two large labs were improperly reporting COVID-19 testing data to the Alabama Department of Public Health, and a data dump from those labs resulted in the state’s largest single day spike in new daily cases on Sept. 25.

Eddie Burkhalter

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(STOCK PHOTO)

Two large labs were improperly reporting COVID-19 testing data to the Alabama Department of Public Health, and a data dump from those labs resulted in the state’s largest single day spike in new daily cases on Sept. 25 when 2,452 cases were reported. 

Alabama State Health Officer Dr. Scott Harris told APR on Tuesday that once those two labs sent in a mass of old test results electronically to ADPH — almost all of them point-of-care antigen tests — those results caused the spike in new daily cases. 

“ADPH continues to make all efforts possible to identify new labs and bring them into the electronic reporting process in order to capture the positive and negative labs for case investigation and data accuracy,” the department said in a statement regarding the recent data dump.

In addition to the large batch of backlogged positive antigen tests on Sept. 25, the state has also begun including probable tests — largely those positives from antigen tests — in both its statewide and county-by-county data, which APR uses to populate its charts. The state began reporting probable cases and deaths on the statewide level on May 30, and began including those totals in graphs on Sept. 1.

(APR GRAPHIC)

(Because ADPH has been reporting probable cases and deaths since May 30, APR was able to adjust our charts back to May 30 beginning Sept. 1 without the addition of the probable cases causing a huge spike.)

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On the county level, though, probable cases and deaths were not reported at all until Sept. 25, when the full total of every probable case was added to county charts. The addition of those probable cases made some counties appear to have even larger spikes than the statewide increase on Sept. 25, which was already the largest increase to date because of the backlogged positives from the labs improperly reporting positives.

(The addition of the new probable cases have also affected other measures APR calculates based on those cumulative and daily totals including seven-day averages, 14-day averages and percent positivity.)

For example, many counties over the past week have reported more positive cases than total tests, which would be impossible without the data delay and the addition of probable cases. Some counties, like Lee County and Tuscaloosa County, showed such large increases on Sept. 25 that their positive totals on that day alone appear to outmatch the statewide increase.

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That, again, is because the statewide total was already including probable cases beginning Sept. 1 and daily probable data was available back to May 30, but county level data did not include probable cases until Sept. 25.

Harris said it’s not uncommon for some labs to hold off reporting test results for a couple of weeks, then submit them all at once. Smaller commercial labs that don’t amass many tests often wait until a batch has been accumulated to submit. 

Two labs sent in a large batch of older negative test results to the state in August, which skewed charts that use that data to track new daily tests and percent positivity. A similar artificial dip and spike in statewide COVID-19 data in early June was the result of computer system problems.

Speaking on the current state of COVID-19 in Alabama, Harris said “we’re cautiously optimistic about where we are” and noted that unlike the spike in new cases, hospitalizations and deaths statewide after Memorial Day into July, the most recent Labor Day holiday does not seem to have resulted in larger numbers.

“We did not appreciate a big spike after Labor Day, which was very, very encouraging,” Harris said.

Harris noted that the state hasn’t imposed any new restrictions since May, other than the statewide mask order in mid-July, which was followed by a decline of new confirmed COVID-19 cases.

“I will say, we still have room to improve. The hospital numbers now are about half of where they were in early August,” Harris said. “Yet they’re still a lot higher than they were back in the spring, so I wish we would continue to see more improvement, but I think we’re definitely much better than we were a couple of months ago.”

Gov. Kay Ivey’s statewide mask order is set to expire Friday, but Ivey and Harris are expected to make an announcement about whether it will be extended. Harris said Ivey’s coronavirus task force is to have a conference call Tuesday afternoon and that an announcement would likely come soon.

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