DOCUMENT 2
ELECTRONICALLY FILED
5/15/2020 9:18 AM
05-CV-2020-900594.00
CIRCUIT COURT OF
BALDWIN COUNTY, ALABAMA
JODY L. WISE, CLERK

THE CIRCUIT COURT OF BALDWIN COUNTY, ALABAMA
STATE OF ALABAMA ex rel.,
STEVE MARSHALL,
ATTORNEY GENERAL
and the ALABAMA DEPARTMENT of
ENVIRONMENTAL MANAGEMENT,
Plaintiffs,
v.
CITY OF FAIRHOPE,
Defendant.

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Civil Action No. CV-2020-___________

COMPLAINT
The Parties
1.

The Attorney General is authorized by Ala. Code § 22-22A-5(1), § 22-22-9(m), §

22-22A-5(12), and § 22-22A-5(18), as amended, to enforce the provisions of the Alabama Water
Pollution Control Act (“AWPCA”), which is found at Ala. Code §§ 22-22-1 through 22-22-14, as
amended. Specifically, Ala. Code § 22-22A-5(18)b. authorizes the Attorney General to bring a
civil action for violation of permits issued under the AWPCA and for unpermitted discharges of
pollutants in violation of said Act. In addition, Ala. Code § 22-22A-5(18)c. authorizes the Attorney
General to recover civil penalties for such permit violations and unpermitted discharges of
pollutants, providing for a maximum of $25,000.00 per violation. The Attorney General is
authorized by Ala. Code § 36-15-12, as amended, to institute and prosecute, in the name of the
State, all civil actions and other proceedings necessary to protect the rights and interests of the
State.
2.

The Alabama Department of Environmental Management (“the Department”

or “ADEM”) is a duly constituted department of the State of Alabama pursuant to Ala. Code §§

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22-22A-1 through 22-22A-17, as amended. Pursuant to Ala. Code § 22-22A-4(n), the Department
is the state agency responsible for the promulgation and enforcement of water pollution control
regulations in accordance with the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 to
1388. In addition, the Department is authorized to administer and enforce the provisions of the
AWPCA.
3.

The City of Fairhope (“the Permittee” or “the Defendant”) operates a wastewater

treatment plant (“WWTP”) known as the Fairhope WWTP (“the Facility”). The Defendant
discharges pollutants from the Facility located at 300 North Church Street, in Fairhope, Alabama,
into Mobile Bay and Big Mouth Gully, both waters of the State.
Jurisdiction and Venue
4.

The Court has jurisdiction and venue over this Complaint pursuant to Ala. Code §

22-22A-5(18)b. and § 22-22A-5(19), as amended.
General Allegations
5.

Pursuant to the National Pollutant Discharge Elimination System (“NPDES”)

program administered by ADEM and approved by the Administrator of the U.S. Environmental
Protection Agency pursuant to § 402 of the Federal Water Pollution Control Act, 33 U.S.C. § 1342,
the Department issued NPDES Permit Number AL0020842 (“the Permit”) to the Defendant. The
Permit was reissued January 21, 2011, effective February 1, 2011. The Permit was again reissued
January 31, 2018, effective February 1, 2018. The Permit establishes limitations, terms, and
conditions on the discharge of pollutants from a point source, described therein as Outfall 001 into
Mobile Bay, a water of the State. The Permit also establishes limitations, terms, and conditions on
the discharge of stormwater from point sources, described therein as Outfalls 002, 003, and 004
into Big Mouth Gulley, a water of the State.

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6.

The Permit requires that the Defendant monitor its discharges and submit periodic

Discharge Monitoring Reports (“DMRs”) to the Department describing the results of the
monitoring. The Permit also requires that the Defendant properly operate and maintain all facilities
and systems of treatment and control which are installed or used by the Defendant to achieve
compliance with the conditions of the Permit.
7.

Permit Condition I.A. requires that discharges be limited and monitored as specified

in the Permit. DMRs submitted to the Department by the Defendant indicate that the Defendant
discharged pollutants from the aforementioned point source, Outfall 001, to Mobile Bay in
violation of the limitations established in the Permit. The months the violations occurred, and the
parameters violated, are listed in Exhibit A.
8.

Permit Condition I.A of the Permit requires that discharges monitored for Total

Kjeldahl Nitrogen (“TKN”) three days per week. The noncompliance notification reports for the
February 2018 and March 2018 monitoring periods indicate that the discharges from Outfall 001
were not monitored for TKN on February 12, 2018; February 28, 2018; and March 2, 2018;
therefore, the Permittee failed to comply with the sample frequency requirement of three days per
week.
9.

Permit Condition I.C.1.b requires that DMRs be submitted so that they are received

by the Department no later than the 28th day of the month following the reporting period. The
DMR for the January 2018 monitoring period was recorded as being received on April 4, 2018, 35
days after the due date.
10.

Ala. Code §22-22-9(i)(3) (2006 Rplc. Vol.) requires that a permit be obtained prior

to discharging any new or increased pollution into any water of the State. The noncompliance
notification report submitted by the Defendant for the October 2018 monitoring period indicates

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that approximately 2,300 gallons of sludge entered Big Mouth Gully on October 8, 2018 due to a
broken pump line from the digester.
11.

Ala. Code §22-22-9(i)(3) (2006 Rplc. Vol.) requires that a permit be obtained prior

to discharging any new or increased pollution into any water of the State. The Defendant reported
unpermitted discharges to the Department in the form of Sanitary Sewer Overflows (“SSOs”)
between April 2015 and April 2020. The dates, locations, and volumes of the reported SSOs are
listed in Exhibit B.
12.

Permit Condition I.C.2.d requires the Defendant to provide notification to the

Director, the public, the county health department and any other affected entity such as public
water systems, as soon as possible upon becoming aware of any notifiable SSO. Permit Condition
III.H.30 defines a notifiable SSO as “an overflow, spill, release or diversion of wastewater from a
sanitary sewer system that: a) Reaches a surface water of the state; or b) May imminently and
substantially endanger human health based on potential for public exposure including but not
limited to close proximity to public or private water supply wells or in areas where human contact
would be likely to occur.” Therefore, the Director, the public, the county health department, and
any other affected entity must be notified as soon as possible when the Defendant becomes aware
of a notifiable SSO. The submitted SSO reports included in Exhibit B indicate that the Director,
the public, and/or the county health department were not notified of the SSOs as required by the
Permit.
13.

Permit Condition I.C.2.a requires the Defendant to submit complete SSO reports to

ADEM no later than five days after becoming aware of the SSO. The submitted SSO reports
included in Exhibit B indicate that the complete SSO reports were not submitted as required by
the Permit.

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Count I
14.

Plaintiffs repeat, replead, and incorporate by reference paragraphs 1 through 13,

15.

The above violations are due to be abated by injunction.

above.

Count II
16.

Plaintiffs repeat, replead, and incorporate by reference paragraphs 1 through 15,

17.

Pursuant to Ala. Code § 22-22A-5(18), as amended, a civil penalty is due to be

above.

assessed for the referenced violations.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that the Court:
A.

Take jurisdiction over this matter.

B.

Adjudge and declare that the Permittee violated the limitations, terms, and

conditions of the Permit.
C.

Adjudge and declare that the Permittee caused or allowed discharges of pollutants

from its wastewater treatment facility into a water of the State in violation of the limitations set
forth in the Permit.
D.

Adjudge and declare that Defendant caused or allowed unpermitted discharges of

pollutants from its wastewater treatment facility.
E.

Order the Permittee to take action to ensure that similar violations of the AWPCA

and its Permits will not recur in the future.

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F.

Assess a civil penalty against the Permittee and in favor of Plaintiffs pursuant to

Ala. Code §§ 22-22A-5(18)b. and c., as amended, for each and every violation of the Permits
alleged in this Complaint.
G.

Tax the costs of this action against the Defendant.

H.

Order such other relief that the Court deems proper.

Respectfully submitted,
s/ Zackary D. Wilson
Zackary D. Wilson (WIL471)
Assistant Attorney General
s/ Robert D. Tambling
Robert D. Tambling (TAM001)
Assistant Attorney General
ADDRESS OF COUNSEL:
Office of the Attorney General
501 Washington Avenue
Montgomery, AL 36130
Telephone: (334) 242-7445
Email: Zack.Wilson@AlabamaAG.gov
Email: Robert.Tambling@AlabamaAG.gov

s/ Monica E. Jayroe
Monica E. Jayroe (JAY003)
Assistant Attorney General
ADDRESS OF COUNSEL:
Alabama Department of Environmental Management
Office of General Counsel
P.O. Box 301463
Montgomery, AL 36130-1463
Telephone: (334) 271-7855
Email: monica.jayroe@adem.alabama.gov

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EXHIBIT A
Monitoring Period

Outfall

Parameter

September 2018
September 2018

0011
0011

Fecal Coliform
Enterococci

Limit
14.0
104

7

Reported
Value
78.31
150

Unit

Limit Type

col/100mL
col/100mL

Monthly Average
Maximum Daily

 DOCUMENT 2

EXHIBIT B
SSO Begin
Date

Location

Volume
(gal)

04/14/2015

Dogwood Ave. and Valley St.

35,000

04/27/2015

131 Augusta Court, Fairhope Al
36532 Rock Creek # 4 Lift Station
6358 Beaver Creek Drive, Azalea
Ridge Lift Station
54 N. Church Street

200

6335 Twin Beech Road, Fairhope
AL 36532 Twin Beech Lift Station
Fels and South Mobile Street (198
South Mobile St) 30.5220,-87.9122
South East corner of Utopia Park
Around 9657 Czar Court, Fairhope
Alabama, and the JL Newton Lift
Station @ 9759 Hwy 32, Fairhope
Woodlands Lift Station, 01
Woodlands Drive, Fairhope, AL
36532
198 South Mobile Street, Fairhope
Alabama 36532
Young St and Johnson Ave,
Fairhope Alabama 36532
419 Valley St, Fairhope Alabama
36532
6358 Beaver Creek Drive, Azalea
Ridge Lift Station
6358 Beaver Creek Drive, Fairhope
Alabama
21778 Meadow Brook Drive
Meadow Brook Lift Station
198 South Mobile Street next to Fels
Street Lift Station
419 Valley Street
419 Valley Street
1 Woodlands Drive
552 South Section Street Lift Station
area
9759 County Road 32, Newton
School Lift station
19513 Quail Creek Drive, Fairhope

<1,000

04/28/2015
05/14/2015

05/20/2015
06/19/2015

07/26/2015

08/20/2015

12/23/2015
12/23/2015
12/23/2015
12/29/2015
02/04/2016
03/21/2016
04/01/2016
04/01/2016
04/02/2016
05/02/2016
05/16/2016
06/05/2016
06/24/2016

Immediate
Notification to the
Public/Health
Dept. Timely?

Immediate
Notification
to ADEM
Timely?

Complete
Report
Submitted
Timely?
No; included in
MWPP report
received
5/17/2016

No, Public not
Notified
No, Public not
Notified

100
1,000

900

No; included in
MWPP report
received
5/17/2016

No; Public not
Notified, Health
Dept. 6/22/2015

800

5,000

2,000
12,000
18,000
500
250
300
400
8,000
7,000
50
4,500
500
100

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08/23/2016

09/05/2016
09/10/2016
01/01/2017

01/01/2017
01/02/2017

01/03/2017
01/03/2017
01/07/2017
01/24/2017

02/16/2017

05/12/2017
06/06/2017
06/21/2017

06/21/2017
06/21/2017

07/25/2017
08/04/2017
08/04/2017

08/04/2017

08/04/2017
08/05/2017
08/07/2017
08/30/2017

17876 Scenic Hwy 98, Grand Hotel
at the Point Clear Creek/Yacht
Basin area
550 Middle Street
198 South Mobile Fels & South
Mobile Street Lift Station
Intersection of Young Street and
Johnson Street

20,000

Valley Street Lift Station
Valley St Lift Station (419 Valley
St) Manhole area (550 Middle
street)
Fairwood Blvd & Fairhope Ave
Ashley Drive and Fairwood Blvd
419 Valley Street Lift station 550
Middle Street Manhole
Scenic Hwy 98 across, 100 yards
south of Battles Rd near Battles
Wharf Drive
402 South Mobile St (Pier & S
Mobile St Lift Station) and 358
South Mobile St
Nichols Ave & Valley St, Fairhope
Alabama 36532
101 South Quail Run Drive, Area of
the Lake Wood Lift Station
Manhole 30.528102, -87.857435
Home, 20605 Lowry Dr, and 20480
Lowry Dr.
311 Knollwood Ave, Fairhope AL
Manhole at the corner Middle Street,
just south of the Valley Street Lift
Station
552 South Section Street South
Section Lift Station
Area of the lift station 6335 Twin
Beech, Twin Beech Lift Station
50 Young Street, Fairhope Alabama
Location is in the area of Johnson
Ave and Young Street
419 Valley St, Valley Street Lift
Station Manhole in the area of the
station
10000 East McGowin Drive,
Fairhope Rohr Lift Station
21788 Meadow Brook Drive,
Meadow Brook Lift Station
1 Woodlands Dr, Fairhope
Woodlands Lift Station
Twin Beech Road Lift Station 6335
Twin Beech Road

3,000
144,000

<1,000
2,000
200

No; Public and
Health Dept. not
Notified

1,250
3,000
48,000
>10,000

2,100

9,500
>1,000
>1,000

200
>10,000

<=1,000
3,900
6,000

78,000

>1,000
>1,000
266,250
6,500

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 DOCUMENT 2

08/30/2017
08/31/2017
10/07/2017
10/08/2017
10/22/2017
10/22/2017
10/23/2017
11/05/2017

11/11/2017
02/11/2018
05/02/2018*

05/11/2018*

06/12/2018
06/21/2018
08/15/2018
08/31/2018
09/05/2018
09/05/2018
09/05/2018
09/05/2018
09/05/2018
10/05/2018
10/08/2018
10/10/2018

10/17/2018
11/01/2018
12/02/2018
12/04/2018

Valley Street Lift Station 419 Valley
Street
Valley Street Lift Station 419 Valley
Street
6335 Twin Beech Road, Fairhope
Alabama
12998 Baldwin County 1, Point
Clear Alabama
419 Valley Street
321 Knollwood Ave
20251 Thompson Hall road
20667 Lowry Dr - White Grove Lift
Station 30.527643, -87.85866 480
Lowry Dr – Manhole 30.530556, 87.857167
Manhole East of 19511 Quail Creek
Drive 3
Valley Street Lift Station, Manhole
at Dogwood Ave and Middle Street
Grand Hotel Lift Station
17876 Scenic Hwy 98,
Fairhope AL
Hwy 98, Fairhope Alabama 36532
South West of Publix on road
easement
10000 McGowan Drive, Fairhope
19160 Highway 98
12998 Baldwin County Hwy 1
North side of Parker Road, Fairhope
AL 100 Feet West of US Hwy 98
Manhole at the corner of Mershon St
and Nichols Ave.
Manhole upstream from the
Fairfield Lift Station
Rohr Lift Station on McGowin Dr,
Fairhope AL
Valley Street Lift station area
Middle St and Dogwood Ave
Young St and Johnson Ave
15809 Scenic Hwy 98, Point Clear
Alabama
Fairhope Wastewater Plant, head
works area
Manhole across from the Pier and
Mobile Lift Station Pier Street/South
Mobile Street
Manhole on the east side of
Kirkman Ln and Pecan St.
10000 East McGowin Drive
South Section lift station
Pecan Ave/Dyson Street

78,000
36,000
3,600
8,400
7,200
>1,000
100
15,000

<=10,000
<=250,000
50

No; Public not
Notified

200

No; Public not
Notified

<=10,000
<=10,000
<=1,000
<=1,000
<=25,000
5,400
30,000
180,000
54,000
2,000
2,300
2,000

<=1,000
3,000
5,500
500

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12/13/2018

Morphy Ave just west of Winn
<=10,000
Dixie shopping center
12/28/2018
Across (North Side of Middle St)
150
from 556 Middle St
12/30/2018
East end of Coleman St @ Greeno
<=1,000
Rd (State Hwy 98)
01/17/2019
Manhole off Belize River Street,
250
Long Pine Subdivision
06/14/2019
Rohr Lift Station on McGowin Dr,
<=1,000
Fairhope AL
06/18/2019
Across from 556 Middle Street
<=1,000
(North Side of Middle Street) and at
the corner of Valley St & Middle St.
07/13/2019
545 South Section Lift Station
<=1,000
07/13/2019
Rohr Lift Station on McGowin Dr.,
<=10,000
Fairhope AL
07/13/2019
Young St and Johnson Ave
1,500
07/13/2019
19875 Thompson Hall Rd, Fairhope
2,000
Fire Station 2
07/13/2019
Valley Street Lift station, and two
<=75,000
Middle Street manholes
07/13/2019
North Section Lift Station 601 North <=75,000
Section Street
07/17/2019
Twin Beech Lift Station 6335 Twin
<=100,000
Beech 3
09/05/2019
338 Hemlock Drive, Fairhope AL
80
09/17/2019
552 South Section Street, Pump line 100
at South Section Lift Station
10/16/2019
Fels Lift Station, Fels/South Mobile
1,500
Street 402 South Mobile Street,
Fairhope 30.522062, -87.912317
Lift Station area 30.522275, 87.912749 Park Area
10/16/2019
Alsway Court, Montrose AL
960
10/17/2019
Fels Lift Station, Fels/South Mobile
1,000
Street 402 South Mobile Street,
Fairhope 30.522062, -87.912317
Lift Station 30.522275, -87.912749
Park
10/30/2019
300 North Church Street
100
10/30/2019
561 Fairhope Ave
1,375
01/09/2020
1/10 of a mile south of 559 South
500
Section Street
02/04/2020
231 Spring Lake Drive
10,000
02/25/2020
545 South Section lift station
2,300
03/12/2020
Manhole at Bon Secour Ave &
500
Miller Ave
04/06/2020
Fels Lift Station Fels/South Mobile
500
Street 402 South Mobile Street,
Fairhope
04/19/2020
Twin Beech Lift Station, 6335 Twin <=10,000
Beech
*The SSO report indicates that the SSO was contained and did not reach a waterbody.

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