The Alabama Department of Environmental Management and Attorney General Steve Marshall filed suit against the city of Fairhope Friday, alleging it violated several permit requirements for reporting and discharging pollutants from its wastewater treatment plant for a five-year period between April 2015 and April 2020.
In a short list of alleged violations, the state declared the city discharged excess levels of fecal coliform and enterococci — two bacteria commonly associated with untreated sewage — at least twice in September 2018. It further alleges the city did not properly monitor “total kjeldahl nitrogen” (TKN) for three monitoring periods in 2018, the city was 35 days late with one monitoring report in 2018, and that it allowed unpermitted discharges of “sludge” into Big Mouth Gully in 2018 and “sanitary sewer overflows” (SSOs) into state waters during the entire five-year period.
In an exhibit attached to the complaint, the state listed 99 separate SSOs over the past five years, totaling at or around 2 million gallons.
The state is asking the court to find the city responsible for the violations and to “order the permittee to take action to ensure that similar violations of the [Alabama Water Pollution Control Act] and its permits will not recur in the future.” It also seeks civil penalties against the city and associated court costs. The statute provides maximum penalties of $25,000 per violation.
The case has been initially assigned to Baldwin County Circuit Court Judge Joseph Norton, who is a resident of Fairhope and a customer of Fairhope Utilities.
Fairhope Mayor Karin Wilson, who has been a vocal supporter of sewer rehabilitation since she was elected in 2016, has previously said the problem lies not with the wastewater treatment plant, but with the outdated and over-capacity collection and transmission system in a city that has experienced a 44 percent increase in population between 2010-2018. The city is in the midst of sewer rehabilitation and planning projects partially funded by at least $11 million in grant funds from the RESTORE Act.
$10 million is being used to increase capacity in the transmission system and $1 million will be used to develop an “Eastern Shore Sanitary Sewer Overflow Prevention Plan” that seeks to “minimize or altogether eliminate SSOs on the Eastern Shore resulting from insufficient capacity, inflow and infiltration from excess stormwater.”
Reached Tuesday, Wilson said in 2019, the City Council funded a portion of a sewer rehabilitation plan she initially proposed two years earlier, but continues to block efforts to hire engineers and professional personnel dedicated to sewer improvements.
“I don’t know what they have to sue for, because there is really no other municipality that has done more and tried to correct the problems more than my administration has done over the past three years,” she said. “We’ve been trying to get an engineering and technical department funded but the council has absolutely refused — they are totally adamant against hiring — but if we hire engineers now, that will totally help our case. I don’t know that we’d have this lawsuit if those positions were funded when I asked for them. But it’s one of things where we would be up Shit’s Creek, no pun intended, if we weren’t already doing what we’ve been doing.”
The suit is similar to one filed against neighboring Daphne Utilities in 2017. There, a settlement was reached last year in which the utility agreed to comply with at least 12 remedial actions and pay more than $100,000 in penalties and fees.
That case was filed after nonprofit environmental organization Mobile Baykeeper released a report revealing deficiencies documented by an internal whistleblower. In a statement, Mobile Baykeeper Program Director Cade Kistler said “we’ve been pleased to see the City of Fairhope investing millions of RESTORE dollars into rehabbing their sewage system over the past few years. However, it is clear from recurring sewage spills and the recently filed suit that now is the time to push ahead even more aggressively with repairs, staffing increases, and funding to protect the Bay and the health of those swimming and playing in the Bay.
“We’re also hopeful that rather than continually waiting for citizen suits from organizations like Baykeeper, ADEM is planning to be more proactive in dealing with the widespread issue of sewage spills in Alabama. We shouldn’t have to force the agency charged with protecting our air, land, and water to take action like we did with Daphne Utilities in 2017 ”
Updated to include comments from Mayor Karin Wilson and Cade Kistler.
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