MONTGOMERY, AL - Environmentalists who spurred the state's lawsuit against the Department of Corrections for wastewater violations at Donaldson prison are criticizing movements to dismiss the case, saying doing so would send the message that the state is above the law.

The Black Warrior Riverkeeper filed a complaint with the Alabama Department of Environmental Management in November 2004 after it found the Jefferson County prison had committed 1,060 violations of the Clean Water Act since 1999.

The Donaldson prison had been discharging its sewage into Big Branch and Valley Creek, a tributary of the Black Warrior River, creating a stinky mess that environmentalists say killed marine life and exposed residents to harmful bacteria.

In a move to avoid federal intervention, the attorney general's office took over the complaint in January 2005 and sued the DOC in state court. The wastewater plant was taken over by a private company in August and the attorney general's office filed a motion to dismiss the case last month, saying it was satisfied with the vast improvements that have been made at the prison.

Not so fast, say officials at the Birmingham-based environmental group, which wants the state to either pay fines for the violations or perform a Supplemental Environmental Project, or SEP, to make up for the damage.

"We feel like the prisons should pay a penalty. They've been violating for nine years out there," Mark Martin, an attorney for the Black Warrior Riverkeeper said Monday. "They've got to be held accountable for their nine years of violations in some method just like any private citizen or any private entity would be. Just because it's the DOC, that doesn't mean that they put on the kid gloves and fail to prosecute."

Assistant Attorney General William Little said the lawsuit did ask for monetary damages, but it was later decided to drop that request because the state has sovereign immunity and cannot be asked to pay damages to itself.

"They're a permittee, they're subject to suit," Little said of the corrections department. "State agencies are able to sue each other. That doesn't mean you can get money, but you can force them to do something to come into compliance."

Nelson Brooke, who heads the environmental organization, said the group has done more than its part to work to reach a settlement in the case. Martin agreed, saying after months of negotiation with the AG's office and DOC, the latest turn of events smells less than pleasant.

"This case has been pending a year and a half. It's only been recently that anybody's mentioned sovereign immunity and the state's inability to pay penalties," he said. "If it was that obvious, they would have been talking about it all along."
Little said a hearing on whether to dismiss the case is scheduled for next month.

He said the outcome likely would not affect the lawsuits the state filed for violations committed at eight other DOC-operated wastewater management sites.
Prisons commissioner Richard Allen announced earlier this month that the department was seeking bids from private contractors to take over those sites.

Martin said fines for each violation at Donaldson would range from $100 to $25,000 and monetary damages, if granted, would go from the corrections department to the state. That's why he said the group is largely in favor of the state working to improve environmental conditions instead of paying fines.