FAIRHOPE, Ala. — Regency Centers Corp., whose affiliated company Fairhope LLC was fined $11,000 last fall for muddy runoff flowing from the Publix Super Market construction site into Fly Creek wetlands, has completed all remediation efforts but also plans to install a new outfall structure on the existing detention pond “as an additional precautionary measure,” according to a January letter filed by the company’s environmental consultant with the Alabama Department of Environmental Management.

“Please let this letter serve as certification that effective Best Management Practices have been implemented, all deficiencies have been corrected, and full compliance with the requirements of ADEM (rules) has been achieved at the facility, off-site conveyances, and affected state waters, including sediment removal and remediation in a manner acceptable to the Department,” the Jan. 22 letter from Volkert Environmental Group, a subsidiary of Volkert & Associates, the engineering firm for the project, stated to ADEM.

The state agency is expected soon to either accept that report or require additional remediation efforts, according to an attorney providing consulting services to the Fly Creek Preservation Association, which criticized the company’s remediation plans in the fall and has since hired its own engineer to analyze the company’s remediation activities and alleged damage to Fly Creek and adjacent wetlands. That engineer filed his own report with ADEM earlier this month contesting the company consultant’s findings.

“If ADEM orders remediation, hopefully it’s enough,” said attorney David Ludder, who works mainly on environmental cases in Alabama and Florida and served as ADEM’s general counsel in the mid-’80s, on Monday. “If ADEM doesn’t require remediation, the group does intend to file suit.”

In September 2008, ADEM issued a notice of violation against Regency Centers, the developer of The Shoppes at Fairhope Village, where the 54,000-square-foot Publix grocery story was built, for alleged environmental violations stemming from muddy water and sediment that ran off the property during construction. The NOV stated that the material ended up in Fly Creek and adjacent wetlands, but that language was deleted from the consent order entered into with Fairhope LLC on Sept. 26, 2009, stating instead that it left the site but did not enter Fly Creek itself.

An administrative order that followed the original NOV and was issued against the company in April 2009 listed a number of violations that began in August 2008, and also stated that sediment entered Fly Creek and proposed a $24,000 fine. That order was negotiated with Fairhope LLC, resulting in a proposed consent order in July with the smaller fine and removal of that language alleging that sediment entered the creek.

As part of the public comment process following the July proposed order, approximately 40 local residents requested a public hearing to discuss that order, which ADEM denied when it issued the Sept. 26 final Special Order by Consent with Fairhope LLC.

“It is not at all surprising that ADEM chose not to conduct a hearing on the proposed order,” Ludder said at the time. “ADEM rarely affords the public any opportunity to comment on proposed decisions that it is not required by law or rule to provide. … The $11,000 penalty amount that ADEM assessed is ridiculously low.”

When Fairhope LLC filed its proposed remediation plan in October with ADEM, Jackie Wavrunek of FCPA criticized it harshly.

“The plan does not include removing any of the breach from Fly Creek or even mention Fly Creek,” she said then. “It addresses cleaning up the Fly Creek wetlands near the Publix site and is worded to convey that wetlands require cleaning because of one event — the Sept. 2, 2009, water-main break near the intersection of Fly Creek Road and Angelo Road. This was actually just one of the most recent of many damaging breaches in the Fly Creek wetlands from the detention outfall pond.”

Regarding the proposed new outfall structure on that detention pond, engineer Randy Davis of Volkert Environmental Group stated in his January letter to ADEM, that “Regency Center intends to install an engineer-designed and approved drop structure on the outfall from the detention pond as an additional precautionary measure to better manage energy dissipation of outfall flow during catastrophic rain events.”

Davis’ letter also states that, “At the request of the city of Fairhope we have asked for a written statement from (ADEM) indicating it was in agreement with installation of this structure. As we understand from your staff such a statement will not be provided. This drop structure has been recommended by Volkert (& Associates), the engineering firm of record and by Hatch Mott McDonald who was hired to provide an independent third party review of the design. Currently, this structure has not been installed but will be installed provided the city agrees.”

Throughout the construction phase of The Shoppes at Fairhope Village and after its completion, during the rain events that resulted in breaches at the detention pond, a number of local environmentalists and residents have criticized the existing detention pond stating that it was incorrectly designed for the size of the Publix grocery story and shopping center site.

Volkert & Associates is the Mobile-based engineering firm that agreed last month to pay the Mobile County school board approximately $9 million regarding the construction of five local schools that were supervised by Volkert, according to media reports at the time. That agreement was reached after trial began in the lawsuit brought by the school board demanding $25 million, claiming the schools had leaky roofs and other problems. Volkert blamed architects and contractors for problems at the schools, according to media reports.

The engineer for FCPA, in his March 6 letter to ADEM, criticized the Volkert report on a number of grounds, pointing especially to the amount of sediment Volkert stated left the Publix construction site.

“That quantity of soil would not completely load one tandem axle dump truck,” wrote engineer Kenneth D. Underwood of Magnolia Springs. “To conclude that the total volume of materials generated over the construction site during the twelve month period considered in the report is between 16 and 20 cubic yards total is not supported by the evidence within the wetlands and within Fly Creek.”

Although ADEM’s consent order with the Regency Centers’ affiliated company does not address whether sediment from the construction site entered Fly Creek, Underwood’s letter states there is evidence of that and that further analysis could quantify how much was deposited there as a result of The Shoppes at Fairhope Village project.

“Quantification of the volume of sands and silts and/or clays deposited within Fly Creek can be done to a reasonable degree of accuracy,” Underwood wrote. “This work would require surveyed cross-sections spaced at proper intervals along the creek, beginning at the location of the detention pond discharge and extending downstream to the end of sediment deposition within the bed. … It is my recommendation that the party or parties responsible for control and management of the construction site be required to remove all sediments deposited within the wetlands, along Fly Creek and within the Fly Creek bed and deposit those materials in environmental acceptable locations.”