By Gabriel Tynes, Dale Liesch and Jason Johnson
Mobile Baykeeper’s Sept. 19 notice of intent to sue Daphne Utilities over fraudulent reporting was the latest salvo in an escalating effort to see that local utilities do something about the large releases of untreated sewage that accompany almost any large rainfall.
According to Baykeeper, more than 23 million gallons of sewage has already spilled in the Mobile-Baldwin area this year. The environmental group also says even with the millions of gallons of sewage spills reported, they are still fighting efforts by some utilities to intentionally play down the severity of spills.
The lawsuit against Daphne Utilities was aided by information from a whistleblower. As early as May 1, Van Baggett, then the operations manager at Daphne Utilities’ wastewater treatment plant, sent an anonymous email to Baykeeper to “express concern about a series of events concerning sewage overflows that have occurred in the Daphne Utilities system.”
Baggett, who has filed his own claim against the utility to contest his termination in August, said he grew concerned in February after as much as 300,000 gallons of sewage spilled into D’Olive Creek.
“The general manager, Danny Lyndall, reported the size of the spill to his board, the media and to Baykeeper as being 200,000 gallons,” Baggett wrote anonymously. “… in addition to reporting a different amount than that which was estimated, Mr. Lyndall also made inaccurate statements concerning the actual amount of sewage that reached D’Olive Creek and the time at which the spill likely began.”
In the email, Baggett accused Lyndall of pressuring staff to lower estimates of large spills as “part of a pattern of behavior of misrepresentation in [an] effort to avoid a negative image in the eye of his board and the public.”
Baggett also claimed a spill in 2016 “resulted in sewage foam reaching D’Olive Creek. Mr. Lyndall instructed staff to wash the foam down with water hoses so that the public wouldn’t see it floating down the creek. Fortunately, the staff refused.”
In a phone interview last week, Baggett confirmed his role as a whistleblower and said other current and former Daphne Utilities employees have also come forward. He said he was terminated “less than 10 minutes after” refusing to cover up a 500,000 gallon spill in August.
With regards to the pending litigation, Lyndall could not comment on the accusations, but he reiterated a statement he made in response to the original complaint last month: “I’m of the opinion we have followed all the regulatory requirements and gone over and above.” Lyndall also said prior to the complaint, Daphne Utilities had voluntarily reported to Mobile Baykeeper because of the nonprofit’s larger social media presence and communications network.
UPDATE: After this story’s deadline Oct. 3, Daphne Utilities General Manager Danny Lyndall called Lagniappe to clarify his position on the accusations: “My former operations manager has made this personal and he is accusing me of covering things up and lying,” he said. “I have not personally done anything wrong — misreport, cover anything up, or tell anyone who works for me to cover anything up … Frankly I’m pissed off about this thing. If Mr. Baggett wants to continue to tell these lies about me, he’s got more to worry about about than losing his job, because he’s going to be looking at a lawsuit. I don’t have anything to hide, my attorneys have urged caution, but this has been made personal. I’ll do everything I need to do to defend this organization I’ve been dedicated to for 12 years …”
Tuesday, Baggett’s attorney, Mary Pilcher, said “Mr. Baggett asserts that he was terminated as a result of his whistleblowing action related to false records and the cover-up of the spill. He’s filed a notice of contest of his termination under [the city of Daphne’s] policies and procedures, and we also believe there are constitutional violations including violations of his First Amendment rights.”
Baykeeper’s notice of intent to sue once again highlighted an unpleasant reality: Untreated wastewater including raw sewage likely spills into Mobile Bay and its watershed every day, and oftentimes spills are substantial. But in a series of conversations over the past month, Baykeeper Executive Director Casi Callaway said more troubling are most utilities’ reporting requirements and practices, plus their lack of plans to remedy the problem.
“State law requires wastewater treatment plants to immediately notify the public of spills, but there are no regulations to specify a time, plan or minimum level of notification,” Callaway said last month. “Furthermore, they only have to report a range or estimate of the spill, not exact numbers, something that can be easily determined by observing the spill or real-time computer data.”
Also, as the population in Baldwin County has exploded while Mobile’s has largely remained stagnant, investment in new sewer infrastructure on the Eastern Shore has lagged while revenue for repairs of existing infrastructure in Mobile has failed to materialize, despite years of rate increases.
“We live in a coastal environment and a comprehensive sewer problem needs to be addressed comprehensively,” Callaway said.
Sitting on a couch at Serda’s Coffee in downtown Mobile last week, Callaway thumbed through photos on her phone allegedly showing raw sewage overflowing from Daphne’s holding tanks. She also showed a video purportedly taken by a staff member showing dozens of used condoms and tampon applicators littering the grounds around D’Olive Creek.
“I think the evidence we’ve seen is overwhelming,” she said. “It’s not just visual, but we have computer data and witness statements to back it up.”
It’s not the first time Baykeeper has had Daphne Utilities in its crosshairs. Former Baldwin County District Attorney David Whetstone brought civil and criminal charges against the utility in 1994, after a grand jury found evidence it was actually bypassing its treatment plant and dumping excess untreated wastewater directly into the bay.
“We checked outfalls every year,” Whetstone recalled last week, “and a citizen reported sewage-like material on the beach near Daphne. We sent investigators and they found bacteria too numerous to count. They had a pipe going right by their treatment plant, plus the plant itself was deficient. We went after them two ways, civilly and criminally; we took a grand jury over there to see it themselves and it didn’t take long for them to acknowledge it and work out an agreement.
“The district attorney and attorney general have the right to bring any action for the protection of the people of Alabama and there are criminal statutes in environmental laws some people ignore,” he continued. “But if you put poison in the water and if you report fraudulently you can be held responsible.”
If stretched end to end, Mobile’s inventory of gravity sewer pipe would be able to stretch to Los Angeles and about halfway back before ending.
To put it in less creative terms, the Mobile Area Water and Sewer System maintains 1,246 miles of public mainline pipe and 800 miles of public service laterals, which connect to the main line. Add to that approximately 1,200 miles of private laterals and it totals more than 3,200 miles of pipes.
That amount of infrastructure, especially when much of it is aging, can cause problems in MAWSS’ constant fight against sanitary sewer overflows, or SSOs. MAWSS Assistant Director Doug Cote said Mobile’s climate and the city’s high water table make it especially challenging to prevent spills that are getting more and more common.
“So, when you look at Mobile, it has a lot of rainfall and it has a lot of groundwater,” he said. “It has a lot of surface water. So, basically we have a sewer system in the city of Atlantis.”
Heavy rain often overwhelms the system’s aging infrastructure, Cote said.
“When you look at why wet-weather SSOs occur, they occur because of defects in both the public sewer system and the private sewer system,” he said.
The defects can occur because of tree roots, corrosion of an old pipe, as well as broken manholes or broken clean-out caps on private property.
“So, what happens?” he asked. “You know, along comes the rain and we have infiltration coming from above and we have groundwater coming up from the bottom, and then before you know it the entire system is submerged. As you might imagine, what happens is you’ve got this water coming in through these defects and it overwhelms the capacity of the sewer pipe to carry it.”
Callaway said rain should not be an excuse for an SSO in Mobile. The data used by the utility, she said, is off when it comes to 10-year and 20-year flood events.
“The numbers are not that old, but frankly they’re out of date,” she said. “If you have five 25-year flood events in one year, that is no longer a 25-year flood event — that is a rainfall. In a community like ours you have to build and design your system to be able to withstand and handle the community you’re living in.”
The materials used when the system was first installed can be a big reason why the system is in the shape it is, Cote said. The regulations were more lax. As an example, he said when the city owned the water system before 1952, plumbers would simply hammer a hole into the side of a sewer main and attach a private lateral line to it. There was no concern at the time about leaks.
“Regulations changed after much of the infrastructure had been installed,” Cote said. “Unlike other utilities, most of ours is in the ground. The cost of replacing the sewer, in many cases, includes replacing streets.”
While it would be too expensive to replace every sewer line in the MAWSS system, Cote said, the public corporation does have lower-cost options to rehabilitate older piping to help prevent SSOs.
For instance, MAWSS uses what Cote called “trenchless technology” to cure pipes in place. The process effectively renews old pipes without having to dig them up and replace them.
“We basically take a felt sock that’s impregnated with a resin, we invert it inside the pipe and what happens is that felt sock is heated, and when it’s heated the resin cures and it becomes a pipe within a pipe,” Cote said. “We did this in Langan Park a couple years ago. We lined 30-inch and 24-inch sewers and we did it without having to dig any trenches in the park.”
The procedure is still costly, as it requires a bypass system be installed to divert the flow while the work is taking place,” he said.
MAWSS has also begun building severe-weather attenuation tanks, or storage basins. The basins work by collecting the overflow during times of heavy rain events and then allowing MAWSS to empty the tank normally when the system is under dry conditions, Cote said.
One such tank is under construction on Riviere Du Chien Road, he said, with plans in the works for a second and third one off of St. Stephens Road near Three Mile Creek. The tanks will help increase storage capacity in the area from eight million gallons to as many as 32 million gallons.
A second storage basin near Eslava Creek is in the works as well, which will help increase capacity in the area, Cote said.
MAWSS is also commissioning a master plan and a rate study, with the expectation that rates will have to be increased in order to come up with a “fiscal policy” to pay for a prioritized list of needs, Cote said. The policy might include borrowing money as well.
The MAWSS Board of Commissioners voted down a rate increase at the end of 2016. It would’ve been the sixth rate increase in as many years for the utility.
Cote acknowledged rate increases are unpopular, but as a nonprofit MAWSS must return all of its proceeds to the system. The utility already spends $18 million to $19 million per year on capital expenses, such as improvement of infrastructure, but more will be needed moving forward.
The goal, Cote said, is to get the sewer system to handle a 10-year rain event without many problems.
MAWSS is no longer under a 2001 consent decree from Mobile Baykeeper and the Environmental Protection Agency, but still has an agreement in place based on it. The agreement stipulates that MAWSS can pay penalties for a sewage spill above a predetermined amount that reaches a body of water, Callaway said. Half of those penalties must go to environmental causes, while the other half is used to help repair the private laterals of low-income households.
While the pending legal action against Daphne is based on its alleged fraudulent reporting, the city of Fairhope is facing its own crappy conundrum. In August, Fairhope accepted the findings of a comprehensive engineering study of its own sewer system, indicating an immediate need to invest tens of millions of dollars in upgrades to pumping stations and pipelines and even constructing a second wastewater treatment plant.
This just a few years after the city borrowed most of the money for a $10.8 million upgrade of its existing plant, which improved the quality of treated wastewater but did little for overall capacity. In early August, more than 260,000 gallons of raw sewage spilled into Fly Creek after a blown fuse crippled a lift station and simultaneously disabled its communication system. While that spill was an anomaly, Baykeeper has documented nearly 30 other spills in Fairhope since 2015 attributed to heavy rainfalls, pipe blockages, broken lines and power failures.
The engineering study completed last month noted three of the city’s four major lift stations were already operating beyond their intended capacities, and that with the current rate of growth, the city’s sole wastewater treatment plant would reach capacity just nine years from now.
During budget discussions last week, Mayor Karin Wilson noted how the city has historically used utilities revenue to plug holes in the city’s general fund or otherwise pay down debt unrelated to sewer, water or electric service.
Afterward, she said her proposed budget — slated to be considered by the City Council within the next few weeks — includes a capital outlay considering “all updates including [a] new sewer plant away from the bay.”
“The big thing we accomplished in 2017 is separating out most of the utilities’ subsidy to the city,” she told the City Council. This came in two ways: A lot of city operating expenses just paid in utilities, as they were part of their financials; the second way was through transfers. So with this budget, you’re just going to see one transfer from utilities, and that’s what we are going to try to manage.”
According to her presentation, Fairhope’s utilities department paid the city $4.2 million for non-utility expenses in 2015 and $5.7 million for non-utility expenses in 2016.
Bayou La Batre
While the frequency and severity of spills can often be lower within smaller sewer systems, low-lying maritime communities such as Bayou La Batre have a vested interest in managing the spills that do occur as quickly and cleanly as possible.
The Bayou La Batre Utilities Board has made conscious efforts to reduce its number of spills and overflows over the past three years, which Executive Director Michael McClantoc said has helped in a year that’s seen more than 69 inches of recorded rainfall in the area.
“That’s what normally triggers 90 percent of our overflows here,” McClantoc said. “Most of ours, I would say, are minimal because we’re a smaller system. We may have a few thousand gallons here or there, but we have been experiencing heavy rainfall events.”
According to records kept by the Alabama Department of Environmental Management (ADEM), Bayou La Batre has reported 10 spills so far in 2017, the most substantial occurring in June when heavy rainfall from Tropical Storm Cindy caused an overflow that released 2,790 gallons of untreated wastewater.
Though the year isn’t over, spills reported by the utilities board are on track to continue a downward trend seen over the past three years. In 2015, ADEM records indicate Bayou La Batre reported 32 overflows and last year only reported 20.
“This has been one of our rainiest years on record so far, and the fact that we’ve only have 10 spills indicates to me that we’ve made some progress,” McClantoc said. “Honestly, I’m excited about where we’ve gotten. I know there’s a long way to go to get things fully corrected, but we’ve made some huge steps.”
Those remaining spills, McClantoc said, occur when heavy rainfall stresses the system, adding that the age of some components in the system are to blame. Like MAWSS in Mobile, the utility also has issues with private property owners leaving cleanout caps open during heavy rains, which can often exacerbate the problem of water infiltration.
When spills or overflows do occur, though, McClantoc says the utility follows ADEM requirements for reporting, disclosing and notifying the public of their existence. According to McClantoc, the board keeps at least one certified wastewater operator on call at all times.
“We have monitors on pumps to let us know when we hit high levels, but we also do rely on the public sometimes when we can’t tell where there may be an overflow,” he said. “Once an operator is notified, at that moment we’ll start documenting everything — the time it started, the amount that’s been spilled — and we’ll notify ADEM through their online reporting system.”
McClantoc said the typical protocol is also to notify health officials with Mobile County and the state of Alabama. Employees also put up “public awareness stickers” in areas impacted by a spill — and often notify residents through the city of Bayou La Batre Facebook page as well.
Bayou La Batre is also still subject to a consent decree it signed with ADEM in 2011, which required the utility to take a number of “corrective actions” due to compliance issues with liquid waste discharged from its old sewage treatment plant.
Per the agreement, the utility used grant funding to construct a new, $20 million wastewater treatment plant, rerouted the wastewater produced from nearby seafood processors and extended its own outfall line, the location of which remains a matter of contention for local oystermen.
There is also still some concern among environmental groups — including Mobile Baykeeper — that the new plant is located in too low-lying of an area, which could create a host of environmental issues in the event of a high storm surge. However, McClantoc, who wasn’t the executive director at the time, said most of those concerns were addressed during construction.
“They came in and built it up 16 feet above sea level, and when you consider the top of the walls, it’s nearly 30 feet above sea level,” McClantoc said. “If you can get something 10 feet above sea level, you’re really doing good in Bayou La Batre. Plus, you have to have your plant close to the discharge point. The further away you get, the more lines you’re running, which could potentially cause other problems.”
McClantoc told Lagniappe that since 2013, the board has put more than $866,000 into infrastructure upgrades, which included a new master pump station, repairing and replacing other stand-alone pumps and adding bypasses to the sewage system’s mainforce line.
According to McClantoc, prior to 2013, the board had also put money into sliplining several sections of pipe like MAWSS did around Langan Park, which repairs leaks to and restores structural stability of existing lines, often at a lower cost than replacing them.
However, McClantoc also said the utility has to work with limited revenue because of its size.
As of September 2016, the were 2,623 users on the utility’s water system and 1,323 users on its sewer system — a 13 percent increase from the number of users reported in 2015. In dollars and cents, that translated to roughly $100,000 of new income generated from user fees, bringing the board’s revenue up to $2.2 million, according to an audit published in March.
The same audit listed $252,115 of expenses for “repairs and maintenance” over the past year, though the board also charges businesses that tap into the sewer system a one-time “impact fee” McClantoc said is set aside for capital improvements.
Currently, the board is seeking funding for several projects through the RESTORE Act, the majority of which McClantoc says pertain to “upgrading water collection systems, continuing sliplining efforts and trying to get our [sanitary sewer overflow events] under control.”
“We want them fixed, but a lot of it comes back to us being a small utility,” he said. “We don’t have a whole lot of revenue, and these kinds of projects do add up. But, for multiple reasons, we’ve been really trying to get a handle on this issue.”
Currently, projects submitted to the Alabama Gulf Coast Recovery Council by various utilities seek more than $115.6 million for sewer improvements in Mobile and Baldwin counties using oil spill money.
“ADEM has not been very active in enforcing but for fines,” Whetstone noted. “But if the fine is cheaper than redoing the sewer, [utilities] are just going to pay the fine. That type of situation cannot exist.”