FAIRHOPE, Ala. — The Alabama Department of Environmental Management has begun using a new penalty calculation worksheet to show how fines are determined for violations of environmental laws.

“We have for years been taking steps to make our penalty orders clearer so people could understand where the numbers come from,” said ADEM director Trey Glenn at the Oct. 16 meeting of the Environmental Management Commission, which sets state environmental policy and provides oversight of ADEM. “So we will enhance the content of those penalty orders to include more specific information regarding the derivation of that penalty amount.”

Glenn said ADEM would begin using the new worksheet in administrative orders initiated this month.

The announcement came less than a month after a final order was issued in the case involving the operator of The Shoppes at Fairhope Village, where the Publix Super Market is located on U.S. 98 and Parker Road. That Sept. 26 consent order resulted in an $11,000 fine against Fairhope LLC for alleged violations of clean water laws from muddy runoff leaving the construction site and entering adjacent wetlands.

“The worksheet was not utilized in the Publix case, but the process was very similar,” said ADEM spokesman Scott Hughes. “The Alabama Environmental Management Act requires us to base our penalties on six factors that are outlined in the law. So, our process for what we consider and what we look at in establishing penalties is consistent and has not changed. What has changed is that we are now using this worksheet that will provide greater transparency and provide interested parties with more insight into how we develop our penalties.”

Hughes said the six factors consist of the following: the seriousness of the violation; the standard of care; the company’s compliance history; the economic benefit achieved; efforts to mitigate; and ability to pay.

Two environmental leaders praised ADEM’s development of the new worksheet.

“I commend ADEM for seeking to create more transparency in its penalty calculations, and I sincerely hope that will take place with the changes that the director announced at the (October) EMC meeting,” said Michael Mullen, Choctawhatchee Riverkeeper, who has been critical of how ADEM calculates penalty amounts.

An attorney who represents groups and individuals in Alabama and Florida in environmental cases, and who recently released a report showing a decline in environmental penalty amounts by ADEM during the past fiscal year, was also cautiously optimistic about the new worksheet.

”I applaud ADEM for making the decision that penalty determinations should be more transparent,” said David Ludder, who served as ADEM’s general counsel in the mid-1980s. “It remains to be seen how ADEM will implement this decision.”

While Ludder praised the agency for use of the new penalty worksheet, he also said some past concerns in how penalty amounts have been determined will continue to be an issue.

“ADEM has often cited violators for fewer violations than it knows have occurred,” he said. “This is deliberate to prevent penalties from becoming larger than desired by ADEM. ADEM should cite every credible violation.”

Ludder said ADEM also states in many penalty orders that it has been unable to ascertain whether a significant economic benefit has been conferred on the violator by its failure to comply with environmental laws.

“As a result, ADEM claims to ‘consider’ economic benefit as required by law, but routinely includes no value for economic benefit in penalty determinations,” Ludder said. “ADEM must develop the capacity to determine economic benefit and begin to assign a defensible value to this factor.”

In the Publix development case, ADEM did state that it was unable to determine whether the company had received an economic benefit.

“The worksheet is being used now,” Hughes said. “The administrative orders that we are issuing with penalties will include a copy of the worksheet. But it takes time from when we propose an order before it gets to the public comment period. I would venture to say that around the first or middle of December the actual worksheet would be included (in those orders).”