FAIRHOPE, Ala. — The state environmental agency proposed a fine of $11,000 this week against the “operator” of the Publix Super Market in Fairhope for violations of clean water laws.

Regency Centers Corp., the developer of the project, began construction in 2008 of the 54,000-square-foot grocery store and shopping center at U.S. 98 and Parker Road, which opened July 1.

The Alabama Department of Environmental Management’s “proposed order” issued on July 22 cites seven incidents from August 2008 through May 2009 when the operator “had not properly implemented and maintained effective Best Management Practices” and that “significant offsite accumulations of sediment resulting from discharges at the facility” occurred on those days.

The “operator” is the company that registered for and holds the required stormwater pollution permit in such construction projects, according to state records.

The proposed order also requires a comprehensive inspection of the facility and “affected State waters” after the order becomes final, as well as cleanup of adjacent wetlands, a new BMP plan and evidence of its implementation.

The public has 30 days from July 22 to file written comments regarding the proposed order and to request a public hearing.

“We have the discretion to hold the public hearing here in Montgomery or in the area where the violations occurred,” said Scott Hughes, ADEM spokesman. “We will do a thorough review of all the comments submitted, look at the number of comments submitted, as well as the technical nature of the comments, and then make a decision (whether to hold a hearing) at the end of the public comment period.”

The proposed order could change based on public comments at such a hearing, but David Ludder, an attorney who has a practice in Alabama and Florida with an emphasis on environmental law, said he has never heard of a public hearing having occurred in such cases. Ludder said he has been followin closely the local case against Publix.

The proposed order “may be the subject of public hearing if significant comments are received,” according to an earlier proposed “unilateral order” sent on April 1 by ADEM to Regency Centers Corp. That document began negotiations that led to current proposed order, Hughes said.

“The public comment period is to allow the public to offer additional information that ADEM didn’t include in the order,” Ludder said. “I would be asking how much of the creek bottoms are now covered in sediment, what’s been the biological impact of that and how permanent is it. Those impacts could smother all the organisms that are on the bottoms of the creek and essentially make the creek difficult for other aquatic organisms to survive.”

The agency first issued a notice of violation against Regency Centers in September after muddy water and sediment flowed off the construction site into Fly Creek and adjacent wetlands following heavy rains last August, according to state records.

ADEM issued the July 22 proposed consent order, not against Regency Centers, but against Fairhope LLC, a Delaware-based limited liability company formed in February, which ADEM refers to as the current “operator” in that document.

However, Fairhope LLC is identified as the current owner of the property and Regency Centers as the current ADEM permittee, according to a June 19 letter by Gerald Pouncey, an attorney for Regency Centers and Fairhope LLC. The letter was sent to attorneys for the Fly Creek Preservation Association and Mobile Baykeeper, both of which filed notices of intent to bring federal environmental citizen suits against the Publix developer earlier this year.

Ludder said he does not know why ADEM issued the proposed consent order against Fairhope LLC because the agency’s online records currently list Regency Centers as the permittee for the Publix project.

On July 9, Jeff Pape, Regency’s vice president, signed the proposed consent order on behalf of Regency Centers and Fairhope LLC.

Pape did not respond to a request seeking comment for this story.

The proposed fine of $11,000 was reduced from a earlier proposed fine of $24,000 sent by ADEM in that April 1 letter to Regency Centers, which was referred to by ADEM as a proposed “unilateral order.”

The July 22 document states that “this special order by consent is a negotiated settlement and, therefore, the department has compromised the amount of the penalty the department believes is warranted in this matter in the spirit of cooperation and the desire to resolve this matter amicably, without incurring the unwarranted expense of litigation.”

Other fines in stormwater cases average about $20,000, Ludder said.

“They tend to fall in the area of $15,000 to $25,000,” said Ludder. “My personal feeling is that this one is low with respect to stormwater violations.”

Ludder said ADEM’s penalty enforcement actions generally have weakened in the past four years.

He will present a report at the Aug. 21 Environmental Management Commission meeting in Montgomery “showing some hard data about how poorly they’re doing.”

He said the agency does not, in general, adequately determine a penalty amount that will deter violators.

“They need to do a better job of articulating how the penalty factors apply,” Ludder said. “They just look at what’s the historical penalty for these kinds of violations, and they don’t make an attempt to calculate what a penalty should be.”

The penalty factors specified in the current order include: “seriousness of the violations,” “standard of care,” “economic benefit which delayed compliance may have conferred,” “efforts to minimize or mitigate the effects of the violations upon the environment,” “history of previous violations,” and “ability to pay.”

The language in the current July proposed order changed from the initial proposed order sent in April.

“There were a number of paragraphs that said there had been discharges to waters and those have all been dropped out and now just talk about offsite accumulations of sediment,” Ludder said. “That might have been done to make the violations sound less significant to justify a lower penalty.”

According to the proposed order, interested persons may submit written comments , including request for a hearing, within 30 days of July 22, to the Alabama Department of Environmental Management, attention James W. McIndoe, Chief of Water Division, P.O. Box 301463, Montgomery, AL 36130-1463. A copy of the proposed order is available on the ADEM Web site: www.adem.state.al.us, under the tab on public notices.