FOR IMMEDIATE RELEASE from Friends of Hurricane Creek/Hurricane Creekkeeper: Circuit Court orders $120,500 minimum penalty for developer’s stormwater violations

 

From: Friends of Hurricane Creek Hurricane Creekkeeper John L. Wathen, hccreekkeeper@hughes.net 205-233-1680 205-507-0867 

 

 03/10/10, Friends of Hurricane Creek / Hurricane CREEKKEEPER filed multiple complaints concerning the Williamsburg Subdivision, owned by SDW, Inc., for stormwater violations that resulted in sediment and other pollutants leaving the Buttermilk Road development. (for more info on stormwater violators visit http://mudbuster.blogspot.com ) 

 

ADEM fined SDW $20,000 for over 700 days of documented violations. ADEM is required to levy a minimum of $100 per violation per day. 

 

FoHC appealed to the Environmental Management Commission with the help of David Ludder, a Tallahassee attorney for FoHC. FoHC presented evidence to the Commission of over 2,000 days of violations. The Commission refused to modify the ADEM penalty so FoHC filed an appeal to Montgomery Circuit Court. On March 10, the Court reversed ADEM and ordered that the $20,000 penalty be increased to a minimum of $120,500. 

 

Judge Charles Price signed the attached order yesterday while the Tuscaloosa News press was rolling this headline for the days edition “New storm drainage rules to cost city nearly $250,000” Friends of Hurricane Creek, Hurricane CREEKKEEPER, hail this as a tremendous victory in the battle against developer produced pollution and run-off! 

 

The price for polluting Tuscaloosa’s waterways just went up. It will no longer be cheaper to break the laws than to obey them. 

 

The Order: 

 

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA FRIENDS OF HURRICANE CREEK, WATHEN JOHN, Plaintiffs, V. Case No.: CV-2009-001320.00 ENVIRONMENTAL MANAGEMENT DEPT OF ALABAMA, ALABAMA ENVIRONMENTAL MANAGEMENT COMMISSION, SDW INC, Defendants. FINAL ORDER The above-styled matter came before the Court on February 8, 2010 on the Plaintiff's Motion for Summary Judgment. The Court notes the following facts in the record: 1. On September 5, 2008, the Alabama Department of Environmental Management ("ADEM") issued Administrative Order 08-203-MNPS to SDW Inc., assessing a $20,000 penalty for violations of the ADEM Administrative Code and the Alabama Water Pollution Control Act at the Williamsburg facility, a residential subdivision constructed by SDW, Inc., in Tuscaloosa County, Alabama. 2. The Plaintiffs filed a request for a hearing with the Alabama Environmental Management Commission ("AEMC") contesting the civil penalty of $20,000 imposed by the Order, contending that the penalty must be set at the mandatory minimum per the statute. 3. AEMC dismissed the Plaintiffs' request for a hearing, and plaintiff filed this appeal. The Alabama Administrative Procedures Act (“AAPA”) governs the standard of review of administrative agency’s decision. Ala. Code (1975) §41-22-20. Under the AAPA, the court may reverse an administrative decision only under limited circumstances. Based on the record, the Court finds that the ADEM Order 08-203 MNPS is in violation of the statutory provisions. Ala. Code 1975 §41-22-20 (k). Pursuant to the Alabama Code §22-22A-5(18) (c), "any civil penalty assessed . . . shall not be less than $100.00 or exceed $25,000.00 for each violation, provided however, that the total penalty assessed in an order issued by the department . . . shall not exceed $250,000.00. Each day such violation continues shall constitute a separate violation for purposes of this subdivision." The ADEM and the AEMC's hearing officer found that SDW violated ADEM rules and regulations. ADEM Order 80-203 MNPS assessing civil penalties in the amount of $20,000 against SDW Inc.'s is a clear failure to assess the statutory minimum penalty amount of $100 per day for each violation and $100 per day for each day of continued violation as required by §22-22A-5(18)(c). Although, ADEM is not required to impose the penalties recommended by the hearing officer, any finding of violation noted in Administrative Order 08-203 MNPS must be assessed at the statutory minimum imposed by the Alabama Code §22-22A-5(18)(c). The Order issued by ADEM cited SDW Inc. for three (3) violations pursuant to ADEM Admin. Code rs. 335-6-12-.05(1), 335-6-12-.11(1), 335-6-12-.05(2), and 335-6-12-.35(10) (a), respectively and these violations continued for a total of 1205 days (See Order 08-203-MNPS FINDINGS #7, 12, and 13). Based on the above stated facts from the record, the Court hereby finds that the decision of ADEM's assessment of civil penalties in the amount of $20,000 is a violation of the statutory minimum, which must be imposed at $100 per violation and $100 per day for each day of continued violation. Based on the facts and statutory demands, it is ORDERED, ADJUDGED AND DECREED that ADEM shall assess a civil penalty in the amount demanded by the statute for the violations cited within Administrative Order 08-203 MNPS. DONE this 10th day of March, 2010. __________ /s/ Charles Price___________ CHARLES PRICE, PRESIDING CIRCUIT JUDGE John L. Wathen Hurricane Creekkeeper, Friends of Hurricane Creek Members of WATERKEEPER Alliance http://www.waterkeeper.org Who has the authority to say someone else is not being a good steward of the environment? Anyone who notices.