FAIRHOPE, Ala. — The state environmental agency decided Friday not to hold a public hearing on a proposed consent order that includes an $11,000 fine against the company now behind the operations of the Publix Super Market in Fairhope regarding alleged environmental law violations.

“The Alabama Department of Environmental Management has made a final decision to enter into a Special Order by Consent with Fairhope LLC in order to resolve the alleged violations of the Alabama Water Pollution Control Act and its attendant regulations,” the Sept. 25 letter from James E. McIndoe, chief of ADEM’s water division states. “With respect to the request for public hearing, the department believes that the issues raised in all public comments it has received are sufficiently clear and that a hearing is not needed.”

The agency’s one-and-a-half-page letter issued last Friday responded to the some 40 comments received (some detailed, but many of which signed an identical form letter objecting to the proposed consent order) so that a hearing was not required, McIndoe wrote.

“It is not at all surprising that ADEM chose not to conduct a hearing on the proposed order,” said David Ludder, an attorney in Alabama and Florida, who was ADEM’s general counsel in the mid-1980s. “ADEM rarely affords the public any opportunity to comment on proposed decisions that it is not required by law or rule to provide.”

Fairhope LLC was formed earlier this year after ADEM filed a notice of violation in September 2008 against Regency Centers Corp., the original developer of the 54,000-square-foot grocery store and shopping center on the steeply sloped corner of U.S. 98 and Parker Road. That NOV alleged that muddy water and sediment ran off the property during construction, which ended up in Fly Creek and adjacent wetlands, according to the agency. The NOV resulted in the proposed consent order that was finalized last week. The agency language concluding that sediment ended up in the Fly Creek watershed changed in the July consent order, stating instead that it left the site, deleting the reference to it being discharged into Fly Creek, as the April proposed order stated.

In April, ADEM submitted to Regency Centers an initial proposed order regarding those violations, which included a $24,000 fine and other remediation measures. On July 22, ADEM issued a proposed consent order that named Fairhope LLC as the responsible party for those alleged violations of clean water laws and failure to implement best management practices during construction, and which had negotiated the fine amount to $11,000. State law required the agency to allow 30 days for public comment, which resulted in detailed comments from the Fly Creek Preservation Association, Mobile Baykeeper and others, objecting to the size of the fine and other measures, which they stated were not adequate to undo the damage they claim caused by the alleged violations. “I feel that the $11,000 order was insufficient — even the $24,000 was probably insufficient given the number of violations (that included) excess turbidity and offsite sediment deposition,” said Michael Mullen, the Choctawhatchee Riverkeeper based in Troy, Ala., on Monday, after reviewing ADEM’s Sept. 25 letter and earlier orders.

“The problems are: one, the lack of transparency in the ADEM penalty assessment; two, the small size of penalties that ADEM issues; and three, the fact that ADEM appears — although it’s hard to know as there is no transparency — to fail to assess even the minimum penalties specified in its own rules.”

Mullen, a former graduate faculty member in environmental studies at Troy University, who is certified in erosion and sediment control, contrasted ADEM’s approach to calculating penalties with the state of Florida’s environmental agency that uses a penalty matrix and specifies in detail how it arrives at its calcuations, he said.

For example, he pointed to one section of the ADEM consent order regarding the Publix case, in which the agency stated that it was unable to ascertain whether the company enjoyed any economic benefits from the alleged violations.

“ADEM is always unable to ascertain any economic benefit,” Mullen wrote on a copy of the proposed consent order, which he had annotated with comments regarding many of its provisions.

In April 2005, a final report was issued by the Enforcement and Administrative Stakeholders Committee established to implement a strategic planning set out by the Environmental Management Commission, the agency which oversees ADEM. That committee included Ludder, ADEM’s current general counsel, the Alabama Attorney General’s chief environmental attorney, and an environmental law professor at the University of Alabama Law School.

“Historically, administrative orders and consent orders issued by ADEM and containing penalties have not included adequate findings of fact regarding the six penalty factors specified (in state law),” the final report stated in conclusion.

The report recommended that adequate findings of fact regarding the six factors, including the economic benefit, which delayed compliance, may confer upon the (company), be made by the agency when calculating penalties.

“The ($11,000 ) penalty amount that ADEM assessed is ridiculously low,” Ludder said Monday. “ADEM’s findings with regard to the six penalty factors are inadequate.”

As for the shortcomings of the agency’s penalty determination methods as set out in the 2005 report, those “criticisms remain valid today,” he said.