FAIRHOPE, Ala. - The Daphne-based company doing excavation work this week in Big Mouth Gully in Fairhope has been cited twice since July 2009 by the Alabama Department of Environmental Management for alleged violations of water pollution control laws at two different construction projects in Baldwin County.

The current excavation work at the corner of North Section Street and Bayou Drive is to improve drainage south of the new Fairhope Elementary School that Don Gordon Construction Inc. built last year, a county school spokesman said Wednesday.

“As follow up to the construction of the new elementary school, the contractor is increasing the capacity of the water detention area, which isn’t required but is being done as a good, proactive move, as routine follow up to the construction,” Terry Wilhite, director of communications for Baldwin County Public Schools, said this week. “School system officials met with representatives from the city, FEMA, the state, the architect and contractor last week to go over details. It should take about 10 to 20 days for the work to be completed, depending on the weather.”

Questions about the excavation were raised Wednesday at a meeting of the Fairhope Environmental Advisory Board. A city employee said a recent report the company filed with ADEM did not address the use of “best management practices” for the continuation of a drainage improvement project begun last summer during construction of the school. The employee also said the project was not covered by city environmental laws, which prompted questions about the ownership of the gully property and which laws did apply to the project.

Some advisory board members thought the property had been donated to the city by the county school system last year. That donation was part of a well-publicized overall donation of some nine acres of gully property to the city from the school board that the Fairhope Single Tax Corp. helped facilitate.

“The land where the detention pond is located – the gully area – is owned by the state of Alabama,” Wilhite said. “During the meetings to discuss the detention pond work, it was discovered the state of Alabama holds clear title to the land where the detention pond is located despite earlier conveyed deeds. There seems to be interest on everyone’s part, including the state, to do the title work necessary to get the ownership settled as originally set out by the board’s action and subsequent deed.”

On July 20, 2009, ADEM issued a notice of violation (NOV) against Don Gordon Construction for alleged deficiencies in its use of “best management practices” (BMPs) to prevent stormwater runoff during its construction of the elementary school, according to state records. Six months later, the agency issued a similar NOV regarding the company’s construction of a satellite courthouse in Foley.

In the Fairhope case, the NOV followed an inspection report that included 69 photographs with captions describing alleged violations such as “silt fencing improperly installed and/or maintained, inadequate inlet protection, disturbed slope not stabilized and/or protected, onsite sedimentation noted in parking lot and onsite erosion near stockpiles of sediment.”

The report also included several pictures taken after a rain storm, showing muddy water being retained at Big Mouth Gully, a plume of sediment at the discharge point into the gully, and a “red turbid contrast” where a creek near that gully entered Mobile Bay.

Environmental regulations require that runoff of water and sediment from construction sites meet certain turbidity requirements, which the agency alleged the company had violated in construction of the Fairhope school.

The July 2009 NOV required the company to respond within a month, setting out a plan for fixing the deficiencies noted and coming into compliance with environmental laws. A company hired by Don Gordon Construction to handle the problems, Bay Environmental LLC of Fairhope, responded to ADEM, showing how the company had complied. The state agency apparently took no further action, which could have included a fine or other penalties, according to state records.

Gordon did not respond to a phone call seeking comment for this story.

On Feb. 25 this year, ADEM issued another NOV against the company, following a January inspection report, this time for alleged practices during the construction of a satellite courthouse near Foley. The letter stated in terms similar to the earlier NOV that appropriate BMPs for the control of pollutants in stormwater runoff had not been fully implemented or maintained with “the potential for uncontrolled discharges of sediment and other pollutants to Wolf Creek.”

Bay Environmental responded for the company in March and April, showing how it had fixed the problems and come into compliance. ADEM has not responded to that letter, according to online records, and the agency could not be reached for comment whether the earlier violation would be considered in deciding whether to take any further action against the company.

“The work that is being done will hopefully ward off any future problems,” said Wilhite, regarding the current excavation and drainage improvement work being done at Big Mouth Gully. “Bringing a new elementary school into reality always requires a great measure of work before, during and after construction. What you see now is just part of the process of bringing a new state of the art learning facility into existence. Parents, students and residents have been ecstatic over the new school, and we’ve appreciated everyone’s cooperation, patience and contribution to this new facility.”