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EPA Petition 2012 Update Supplement

by Katie Shaddix last modified April 24, 2012 12:43 PM

BEFORE THE ADMINISTRATOR OF THE

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

 

IN RE: PETITION TO COMMEMCE PROCEEDINGS TO WITHDRAW ALABAMA’S AUTHORIZATION TO ADMINISTER THE NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM

 

[ALABAMA RIVERS ALLIANCE, INC., ADEM REFORM COALITION, FRIENDS OF HURRICANE CREEK, MOBILE BAYKEEPER, INC., BLACK WARRIOR RIVERKEEPER, INC., CHOCTAWHATCHEE RIVERKEEPER, INC., FRIENDS OF THE LOCUST FORK RIVER, COOSA RIVER BASIN INITIATIVE, INC., ALABAMA ENVIRONMENTAL COUNCIL, SAND MOUNTAIN CONCERNED CITIZENS, INC., CONSERVATION ALABAMA FOUNDATION, INC., CAHABA RIVERKEEPER, and THE FRIENDS OF BIG CANOE CREEK

 

Petitioners]

_________________________________________/

 

Click here to read this document as a PDF with images displayed; otherwise images will not be displayed. 

 

I. SUPPLEMENT TO PETITION

 

      1.         This is a supplement to the petition filed January 15, 2010, by the petitioners to the Administrator of the United States Environmental Protection Agency (EPA) for the issuance of an order commencing proceedings to determine whether to withdraw approval of the National Pollutant Discharge Elimination System (NPDES) permit program for the state of Alabama because the operation of the state program fails to comply with the requirements of 40 C.F.R. Part 123.

2.         This supplement is provided to update the EPA on the status of the NPDES program in Alabama and to enter into the record such new information that has been made available to the petitioners subsequent to the filing of the petition on January 15, 2010

 

II. PROCEDURAL HISTORY

 

      3.         On January 14, 2010, Petitioners representing 14 organizations and hundreds of citizens of the State of Alabama submitted a petition to the Administrator of the EPA for the issuance of an order commencing proceedings to determine whether to withdraw approval of the NPDES permit program for the State of Alabama because the operation of the state program fails to comply with the requirements of 40 C.F.R. Part 123.  On February 18, 2010, Petitioners submitted a supplement to the Petition in support of Ground “T” (Failure of State to provide adequate personnel qualifications [33 U.S.C. § 1314(i)(2)(D); 40 C.F.R. §§ 123.25(c), 123.63(a)].  ADEM filed a response to the Petition on April 8, 2010.  Petitioners submitted a Reply to ADEM’s response on November 8, 2010. 

                  4.         Additionally, Petitioners have met with staff at EPA Region 4 on numerous occasions in the subsequent 2 years since the Petition in order to answer questions regarding the Petition and to receive updates on the progress of the EPAs consideration of the Petition. In the interim between ADEM’s response and this Supplement, Petitioners have made every effort to meet and establish a dialogue with ADEM in order to address the systemic problems in the State’s program.  With the exception of ADEM’s participation via telephone in the most recent meeting between Petitioner’s and Region 4 staff on October 31, 2011, ADEM has resisted every effort to communicate regarding the Petition.  Since the Petition, ADEM has met with individual petitioners regarding the NPDES program and these discussions have often overlapped with issues addressed in the Petition.


 

Table of Contents

I. SUPPLEMENT TO PETITION.. 1

II. PROCEDURAL HISTORY.. 2

III. GROUNDS. 5

A. Failure of State to ensure that monitoring data are entered into the Permit Compliance System [Memorandum of Agreement; 40 C.F.R. §§123.24, 123.63(a)(4)] 5

B. Failure of State to exercise control over activities required to be regulated, including failure to issue permits.  [40 C.F.R. § 123.63(a)(2)(i)] 6

D. Repeated issuance of permits by State which do not conform to the requirements of 40 C.F.R Part 123 [40 C.F.R. §§123.25(a)(15), 122.44(d)(1)(vii)(B), and 123.63(a)(2)(ii)] 12

E. Failure to provide required public notice of outfall locations [40 C.F.R. §§ 123.25(a)(28), 124.10(d), 123.63(a)(3)(iii) 13

F. Failure of State to inspect and monitor activities subject to regulations: Major dischargers [40 C.F.R. §§ 123.26(e)(5), 123.63(a)(3)(iii)] 21

G. Failure of State to inspect and monitor activities subject to regulations: Non-Major dischargers [40 C.F.R. §§ 123.26(b)(2), 123.63(a)(3)(iii)] 23

H. Failure of State to maintain procedures for receipt and consideration of alleged violations by public [40 C.F.R. §§ 123.26(b)(4), 123.27(d)(2)(i), 123.63(a)(2)(iii)] 25

I. Failure of State to monitor activities subject to regulation [40 C.F.R. §§ 123.26, 123.63(a)(3)(iii), 123.63(a)(4); Memorandum of Agreement] 26

J. Failure of State to maintain a vigorous program of taking timely and appropriate enforcement action [ Memorandum of Agreement; 40 C.F.R §§ 123.21(a)(4), 123.63(a)(4)] 33

K. Failure of State to seek adequate enforcement penalties:  Computation of violations of average limits [40 C.F.R. §§ 123.27(c), 123.63(a)(3)(ii)] 37

L. Failure of State to seek adequate enforcement penalties: Identification of all violations [40 C.F.R. §§ 123.27(c), 123.63(a)(3)(ii)] 39

M. Failure to seek enforcement penalties: Two year limitation period [40 C.F.R. §§ 123.27(c), 123.63(a)(3)(ii)] 40

N. Failure of State to seek adequate enforcement penalties:  Recovery of economic benefit [40 C.F.R. §§ 123.27(c), 123.63(a)(3)(ii)] 42

O. Failure of State to seek adequate enforcement penalties: Degree of culpability [40 C.F.R. §§ 123.27(c), 123.63(a)(3)(ii)] 46

P. Failure of State to seek adequate enforcement penalties: Consistency with past penalties [40 C.F.R. §§ 123.27(c), 123.63(a)(3)(ii)] 48

Q. Failure of State to timely prosecute case [Memorandum of Agreement; 40 C.F.R. §§ 123.21(a)(4), 123.24, 123.63(a)(4)] 49

R. Failure of State to timely prosecute cases [Memorandum of Agreement; 40 C.F.R. §§123.21(a)(4), 123.24, 123.63(a)(4)] 51

S. Failure of State to take prompt action where dischargers violate consent decrees [Memorandum of Agreement; 40 C.F.R. §§123.21(a)(4), 123.24, 123.63(a)(4)] 51

T. Failure of State to provide adequate personnel qualifications [33 U.S.C. § 1314(i)(2)(D); 40 C.F.R. §§ 123.25(c), 123.63(a)] 52

U. The State’s legal authority no longer meets the requirements of 40 C.F.R. Part 123: Penalties against state entities [40 C.F.R. §§ 123.27(a)(3) and 123.63(a)(1)] 54

V. The State’s legal authority does not meet the requirements of 40 C.F.R. Part 123: Large and medium separate storm sewer enforcement authority [40 C.F.R. §§ 123.25(a)(9) and 123.63(a)] 55

W. The State’s legal authority does not meet the requirements of 40 C.F.R. Part 123: TMDL implementation [40 C.F.R. §§ 123.25(a)(1) and 123.63(a)] 56

X. Failure of State to provide adequate manpower [40 C.F.R. § 123.63(a); 33 U.S.C. § 1314(i)(2)(D)] 57

Y. States are required to provide adequate funding necessary to effectively carry out the minimum requirements set forth under 33 U.S.C § 1342(b) 59

Z. Failure of State to Maintain to the maximum extent possible resources required to carry out all aspects of the NPDES program [Memorandum of Agreement; 40 C.F.R. § 123.63(a)(4); 33 U.S.C. § 1314(i)(2)(D)] 60

IV. REQUEST FOR RELEIF. 62

 

 

 


 

 

III. GROUNDS

A. Failure of State to ensure that monitoring data are entered into the Permit Compliance System [Memorandum of Agreement; 40 C.F.R. §§123.24, 123.63(a)(4)]

 

                  5.         A State NPDES program shall include a Memorandum of Agreement with the Regional Administrator of the U.S. Environmental Protection Agency as required by 40 C.F.R. § 123.24. 40 C.F.R. § 123.21(a)(4).

                  6.         National Pollutant Discharge Elimination System Memorandum of Agreement Between the State of Alabama and the United States Environmental Protection Agency, Region IV (April 11, 2008) requires

The State will ensure that monitoring and evaluation data are entered directly into ICIS-NPDES or into a data management system which is uploaded into ICIS-NPDES.  Data entry and accuracy rates will be as established in the State 106 Workplan.

 

ADEM Exhibit at A-1 at 17.

                  7.         In the Petition and subsequent reply to ADEM’s response, Petitioners allege that during Fiscal Year 2008 (October 2007-September 2008), the State of Alabama failed to achieve a 95% data entry accuracy rate for non-major dischargers as required by National Pollutant Discharge Elimination System Memorandum of Agreement Between the State of Alabama and the United States Environmental Protection Agency, Region IV (April 11, 2008) and State 106 Workplan for Fiscal Year 2008. Petition at 7-8, Petition Reply at 5-7.

                  8.         The State 106 Workplan for Fiscal Year 2010 provides that the State shall “[m]aintain DMR entry rate of at least 95% for facilities tracked under current WENDB requirements…”. Petition Exhibit A-4 at 48. In FY2010, the State of Alabama achieved a 51.6% entry rate into the ICIS-NPDES database for non-major dischargers. State Review Framework – CWA Data for Alabama, State Multi Year Report (U.S. EPA, last updated July 5, 2011). Petition Exhibit A-5. In FY 2009, The State of Alabama achieved a 45.38% entry rate into the ICIS-NPDES database for non-major dischargers.  Data Completeness Table (FY 2009). Petition Exhibit A-6. 

                  9.         The State 106 Workplan for Fiscal Year 2011 provides that the State shall “[m]aintain DMR entry rate of at least 95% for major facilities tracked under current WENDB requirements…”. Petition Exhibit A-7 at 14 (emphasis added).  It appears that EPA has now waived all DMR entry requirements for non-majors.  This is an unfortunate development because it severely limits the confidence that can be afforded to EPA’s database reports for non-major facilities in Alabama.

                  10.        Given the change in the FY2011 106 Workplan from previous years, it appears that the State of Alabama complied with the with the DMR data entry requirements for the FY2011 106 Workplan. 

B. Failure of State to exercise control over activities required to be regulated, including failure to issue permits.  [40 C.F.R. § 123.63(a)(2)(i)]

 

                  11.        A State NPDES program is required to exercise control over activities required to be regulated, including the issuance of permits. 

                  12.        In the Petition and subsequent reply to ADEM’s response, Petitioners allege that the State of Alabama has failed to issue NPDES permits for dischargers with expired permits that are not administratively continued. Petition at 8, 12, Petition Exhibit B-1, Petition Reply at 7-30.

                  13.        The State of Alabama has subsequently failed to issue NPDES permits for dischargers with expired permits that are not administratively continued.  These failures include the following major dischargers:

American Cast Iron Pipe, NPDES Permit No. AL0029378

Village Creek

Permit reissuance application filed on October 29, 2004, 179 days before expiration of the existing permit.  Permit expired on October 31, 2009.  A new permit has not been issued for at least 901 days.  During that time, discharges were unpermitted.  Delayed reissuance has delayed implementation of waste load allocations prescribed in TMDL.  A draft permit was publicly noticed on February 15, 2012.

 

City of Attalla, NPDES Permit No. AL0057657

Coosa River

No evidence (in available databases) of permit reissuance application having been filed.  Permit expired on January 31, 2009.  A new permit has not been issued for at least 1174 days.  (Note: The OTIS database identifies this permit as administratively continued).  Delayed reissuance has delayed implementation of waste load allocations prescribed in TMDL.

 

Bayou La Batre, NPDES Permit No. AL0022632 

Portersville Bay

Permit reissuance application filed on May 5, 2009, 179 days before expiration of the existing permit. Permit expired on October 31, 2009.  A new permit has not been issued for at least 901 days.  During that time, discharges were unpermitted.  (Note: The OTIS database identifies this permit as administratively continued).

 

City of Enterprise, NPDES Permit No. AL0020061 

Harrand Creek

Permit reissuance application filed on April 18, 2011, 104 days prior to expiration of the existing permit.  Permit expired on July 31, 2011.  A new permit was not issued for at least 231 days.  During that time, discharges were unpermitted.  A final permit was issued on March 20, 2012.

 

SMI Steel, Inc., NPDES Permit No. AL0001554

Village Creek

Permit reissuance application filed on March 5, 2007, 179 days prior to expiration of the existing permit.  Permit expired on August 31, 2007.  A new permit has not been issued for at least 1693 days.  During that time, discharges were unpermitted.  (Note: The OTIS database identifies this permit as administratively continued).  Delayed reissuance has delayed implementation of waste load allocations prescribed in TMDL.

 

Winfield Waterworks and Sewer Board, NPDES Permit No. AL0023400

Luxapallila Creek East Branch

Permit reissuance application filed on October 19, 2011, 49 days after expiration of the existing permit.  Permit expired on August 31, 2011.  A new permit was not issued for at least 200 days.  During that time, discharges were unpermitted.  A final permit was issued on March 20, 2012.

 

                  14.        In addition, the following permits are identified in EPA’s Online Tracking Information System (OTIS) database as being expired for more than one year:

 

NPDES ID

FACILITY NAME

PERMIT

EXPIRED DATE

AL0073300

CLEVELAND WATER TRTMT PLANT

05/30/10

AL0077356

JDS CONST PIT N 3

06/30/10

AL0077399

SALLY PATTERSON DIRT PIT

07/31/10

AL0077437

COOSA VALLEY MINERALS PLANT 1

08/31/10

AL0000019

U S ARMY GARRISON REDSTONE ARS

08/31/10

AL0000337

AWESOME PROPERTIES LLC

09/30/10

AL0077321

CHILTON COUNTY SAND AND GRAVEL

09/30/10

AL0071943

STEVE MITCHELL DIRT PIT

10/31/10

AL0073181

WEEMS SPRING WATER TRMT PLANT

10/31/10

AL0065919

MOBILE TERMINAL

11/30/10

 

                  19         The State of Alabama has subsequently failed to issue, reissue, modify or deny NPDES permits for dischargers with permits that have been administratively continued for more than one year.  These failures include the following major dischargers:

Powersouth Energy Cooperative, NPDES Permit No. AL0003671

Tombigbee River

Permit reissuance application submitted on September 1, 2009.  Permit has been administratively continued for at least 781 days after the expiration date of the permit (February 28, 2010). 

 

Jefferson County Commission (Cahaba River WWTP), NPDES Permit No. AL0023027

Cahaba River

Permit reissuance application submitted on May 2, 2002.  Permit has been administratively continued for at least 3458 days after the expiration date of the permit (October 31, 2002).  Delayed permit reissuance has delayed implementation of waste load allocations prescribed in TMDL.  A draft permit was prepared on April 10, 2012.

 

City of Prichard Waterworks and Sewer Board, NPDES Permit No. AL0023205

Three Mile Creek

Permit reissuance application submitted on October 1, 2009.  Permit has been administratively continued for at least 750 days after the expiration date of the permit (March 31, 2010).  Delayed permit reissuance has delayed implementation of waste load allocations prescribed in TMDL.

 

Utilities Board of the City of Chickasaw, NPDES Permit No. AL0020885

Chickasaw Creek

Permit reissuance application submitted on May 1, 2009.  Permit has been administratively continued for at least 901 days after the expiration date of the permit (October 31, 2009).  A draft permit was prepared on December 8, 2011.

 

Tennessee Valley Authority (Colbert Fossil Plant), NPDES Pewrmit No. AL0003867

Cane Creek

Permit reissuance application submitted on November 23, 2009.  Permit has been administratively continued for at least 689 days after the expiration date of the permit (May 31, 2010).

 

Decatur Utilities, NPDES Permit No. AL0048593

Tennessee River

Permit reissuance application submitted on September 11, 2008.  Permit has been administratively continued for at least 1115 days after the expiration date of the permit (March 31, 2009).  A draft permit was prepared on February 24, 2012.

 

Evonik Degussa Corp., NPDES Permit No. AL0023272

Middle Fork Deer River Dykes Creek

Permit reissuance application submitted on August 28, 2008.  Permit has been administratively continued for at least 1146 days after the expiration date of the permit (February 28, 2009).  A draft permit was prepared on April 6, 2012.

 

Alabama Power Co. (Gadsden Steam Plant), NPDES Permit No. AL0002887

Coosa River

Permit reissuance application submitted on May 23, 2007.  Permit has been administratively continued for at least 1540 days after the expiration date of the permit (January 31, 2008).  A draft permit was prepared on December 14, 2011.

 

Golden Rod Broilers, NPDES Permit No. AL0026832

Eight Mile Creek

Permit reissuance application submitted on April 13, 2010.  Permit has been administratively continued for at least 536 days after the expiration date of the permit (October 31, 2010).  Delayed permit reissuance has delayed implementation of waste load allocations prescribed in TMDL.  A draft permit was prepared on January 13, 2012.

 

City of Hartselle Utilities, NPDES Permit No. AL0054674

Shoal Creek

Permit reissuance application submitted on August 21, 2007.  Permit has been administratively continued for at least 1511 days after the expiration date of the permit (February 29, 2008).  Delayed permit reissuance has delayed implementation of waste load allocations prescribed in TMDL.

 

City of Hoover (Inverness WWTP), NPDES Permit No. AL0025852

Cahaba River

Permit reissuance application submitted on May 2, 2006.  Permit has been administratively continued for at least 1997 days after the expiration date of the permit (October 31, 2006).  Delayed permit reissuance has delayed implementation of waste load allocations prescribed in TMDL.

 

City of Hoover (Riverchase WWTP), NPDES Permit No. AL0041653

Cahaba River

Permit reissuance application submitted on April 30, 2002.  Permit has been administratively continued for at least 1997 days after the expiration date of the permit (October 31, 2006).   Delayed permit reissuance has delayed implementation of waste load allocations prescribed in TMDL.

 

International Paper, NPDES Permit No. AL0002674

Alabama River Dunns Creek

Permit reissuance application submitted on August 19, 2010.  Permit has been administratively continued for at least 416 days after the expiration date of the permit (February 28, 2011).  (Note:  The OTIS database identifies this permit as expired).  A draft permit was publicly noticed on February 15, 2012.

 

Masland Carpets, Inc. NPDES Permit No. AL0021997

Boggy Branch

Permit reissuance application submitted on July 21, 2009.  Permit has been administratively continued for at least 809 days after the expiration date of the permit (January 31, 2010).  A draft permit was publicly noticed on March 15, 2012.

 

City of Orange Beach (Hwy 180 WWTP), NPDES Permit No. AL0052515

Intracoastal Waterway

Permit reissuance application submitted on April 3, 2009.  Permit has been administratively continued for at least 901 days after the expiration date of the permit (October 31, 2009).  The permit was terminated on March 20, 2012.

 

City of Pelham, NPDES Permit No. AL0054666

Buck Creek

Permit reissuance application submitted on August 7, 2007.  Permit has been administratively continued for at least 1480 days after the expiration date of the permit (March 31, 2008).  Delayed reissuance has delayed implementation of waste load allocations prescribed in TMDL.  A darft permit was prepared on March 12, 2012.

 

City of Troy (Walnut Creek WWTP), NPDES Permit No. AL0032310

Walnut Creek

Permit reissuance application submitted on April 22, 2010.  Permit has been administratively continued for at least 506 days after the expiration date of the permit (November 30, 2010).

 

Jefferson County Commission (Trussville WWTP), NPDES Permit No. AL0022934

Cahaba River Pinchgut Creek

Permit reissuance application submitted on July 29, 2005.  Permit has been administratively continued for at least 2270 days after the expiration date of the permit (January 31, 2006).  Delayed reissuance has delayed implementation of waste load allocations prescribed in TMDL.  A draft permit was prepared on April 10, 2012.

 

Tyson Foods, Inc., NPDES Permit No. AL0001449

Graves Creek

Permit reissuance application submitted on March 31, 2010.  Permit has been administratively continued for at least 536 days after the expiration date of the permit (October 31, 2010).  Delayed reissuance has delayed implementation of waste load allocations prescribed in TMDL.  A draft permit was publicly noticed on January 17, 2012.

 

Tennessee Valley Authority (Widows Creek Fossil Plant), NPDES Permit No. AL0003875

Tennessee River

Permit reissuance application submitted on October 1, 2009.  Permit has been administratively continued for at least 750 days after the expiration date of the permit (March 31, 2010).

 

Mobile Area Water and Sewer System (Wright Smith WWTP), NPDES Permit No. AL0023094

Three Mile Creek

Permit reissuance application submitted on January 23, 2009.  Permit has been administratively continued for at least 993 days after the expiration date of the permit (July 31, 2009).  Delayed permit reissuance has delayed implementation of waste load allocations prescribed in TMDL.

 

                  20.        In addition, the following permits are identified in the EPA’s Online Tracking Information System (OTIS) database as having been administratively continued for more than one year:

 

NPDES ID

FACILITY NAME

PERMIT

EXPIRED DATE

AL0058734

BIG BEND

03/31/10

AL0077143

SLOAN MOUNTAIN MINE

03/31/10

AL0057801

LESAFFRE BAKERS YEAST

04/30/10

AL0067351

OAK GROVE DEGAS PROJECT

06/30/10

AL0021971

JIM WALTER MINE 3

07/31/10

AL0067253

ALABAMA HEMATITE PLANT

08/31/10

AL0068811

BLUE RIDGE MINE

09/30/10

AL0003891

ENVIRONMENTAL RESEARCH CENTER

09/30/10

AL0073474

RADCLIFF ECONOMY MARINE SVCS

09/30/10

AL0077542

BIRMINGHAM COAL AND COKE CO INC

10/31/10

AL0073377

EUTAW PLANT

10/31/10

AL0041866

PULL TIGHT WASHER

10/31/10

AL0060402

DRUMMOND MINE 89

11/30/10

AL0068942

GULF ATLANTIC OPERATIONS LLC

11/30/10

AL0076864

SEQUOYA COALBED METHANE

11/30/10

AL0003620

CONCORD PREPARATION PLANT

12/31/10

AL0060470

RUSSELLVILL PILGRIMS PRIDE PL

12/31/10

 

 

                  21.        The State of Alabama has failed to process in a timely manner and propose to issue, reissue, modify, or deny NPDES permits as required by National Pollutant Discharge Elimination System Memorandum of Agreement Between the State of Alabama and the United States Environmental Protection Agency, Region IV (April 11, 2008).

                  22.        Where the State program fails to comply with the terms of the Memorandum of Agreement required under 40 C.F.R. §123. 24, the State must take corrective action or suffer program withdrawal. 40 C.F.R. § 123.63(a)(4).  Accordingly, the EPA should require corrective action by the State of Alabama. Absent corrective action by the State of Alabama to address this and other program failures, EPA should commence proceedings to withdraw approval of the Alabama NPDES program.

D. Repeated issuance of permits by State which do not conform to the requirements of 40 C.F.R Part 123 [40 C.F.R. §§123.25(a)(15), 122.44(d)(1)(vii)(B), and 123.63(a)(2)(ii)]

 

                  23.        State NPDES Programs under 40 C.F.R. Part 123 must have legal authority to implement 40 C.F.R. §122.44(d)(1)(vii)(B) and must be administered in conformance with 40 C.F.R. § 122.44(d)(1)(vii)(B). 40 C.F.R. § 123.25(a)(15).

                  24.        40 C.F.R. § 122.44(d)(1)(vii)(B) provides that water quality-based effluent limits shall ensure that effluent limits developed to protect a narrative water quality criterion, a numeric water quality criterion, of both, are consistent with the assumptions and requirements of any available wasteload allocation for the discharge prepared by the State and approved by EPA pursuant to 40 C.F.R. § 130.7

                  25.        In the Petition, Petitioners allege that the State of Alabama has repeatedly issued permits which do not conform to the requirements of 40 C.F.R §§123.25(a)(15) and 122.44(d)(1)(vii)(B). Petition at 13-16, Petition Exhibit D. As an example, Petitioners referred to the State’s response to the 2004 Total Maximum Daily Load for Metals, Pathogens, and Turbidity in the Hurricane Creek Watershed (U.S. EPA, Region 4, October 2004). Petition Exhibit D.  Petitioners provided a list of 24 state issued construction stormwater registrations authorized or re-authorized subsequent to the publication of the TMDL, which clearly did not meet prescriptions set forth in Section 6.2.1 of the TMDL. Petition Table 1 at 15-16.

                  26.        According to Quadrennial Evaluation of Water Programs Report to the Alabama Department of Environmental Management, Part 1: Program Effectiveness, Section 3: TMDL Self Assessment Questions (September 2010), ADEM has modified, reissued, or issued 55 NPDES permits to reflect TMDL requirements. This is only 59% of NPDES permits covered by a TMDL that have been modified, reissued, or issued to reflect the TMDL requirements (53% considering MS4 Permits). Petition Exhibit D-2

                  27.        The State has failed to incorporate TMDL requirements in its NPDES program as required under 40 C.F.R §§ 123.25(a)(15) and  122.44(d)(1)(vii)(B).

                  28.        Where the operation of the State program fails to comply with the requirements of 40 C.F.R. Part 123, including repeated issuance of permits which do not conform to the requirements of 40 C.F.R. Part 122.44(d)(1)(vii)(B), the State must take corrective action or suffer program withdrawal.  40 C.F.R. § 123.63(a)(2)(ii). Accordingly, the EPA should require corrective action by the State of Alabama.  Absent corrective action by the State of Alabama to address this and other program failures, EPA should commence proceedings to withdraw approval of the Alabama NPDES program.

E. Failure to provide required public notice of outfall locations [40 C.F.R. §§ 123.25(a)(28), 124.10(d), 123.63(a)(3)(iii)

 

                  29.        State NPDES programs under 40 C.F.R. Part 123 must have legal authority to implement the public notice requirements of 40 C.F.R. § 124.10(d) and must be administered in conformance with the public notice requirements of 40 C.F.R. § 124.10(d). 40 C.F.R. § 123.25(a)(28).

                  30.        40 C.F.R § 124.10(a)(ii) requires that public notice of a draft permit be published.  40 C.F.R. §124.10(d) mandates that the public notice shall include the “[n]ame and address of the permittee or permit application and, if different, of the facility of activity regulated by the permit,” 40 C.F.R. § 124.10(d)(ii); “[a] brief description of the business conducted at the facility or activity described in the permit application or the draft permit,” 40 C.F.R. § 124.10(d)(iii); and “a general description of the location of each existing or proposed discharge point and the name of the receiving water and the sludge use and disposal practice(s) and the location of each sludge treatment works treating domestic sewage and use or disposal sites known at the time of permit application.” 40 C.F.R. § 124.10(d)(vii) (emphasis added).

                  31.        In the Petition and subsequent Reply to ADEM’s Response, Petitioner’s allege that the State of Alabama failed to include in public notices (from January 17, 2008 to December 15, 2009) “a general description of the location of each existing or proposed discharge point” as required by 40 C.F.R. §§ 123.25(a)(28) and 124.10(d)(vii). Petition at 16-17, Petition Reply at 39-42.

                  32.        Since the Petition, ADEM continues to fail to provide public notice of the general description of the location of existing and proposed discharge points as required by 40 C.F.R. § 123.25(a)(28).  See Petition Exhibit E-3.  It is not sufficient for a public notice to refer the reader to an ADEM webpage where the NPDES permit application can be reviewed to determine outfall locations.  “Only 50.5 to 55.8 percent of Alabama’s population uses the internet.”  Reply of Petitioners to the Response of the Alabama Department of Environmental Management (Nov. 8, 2010) at 31.  It is not sufficient for ADEM to provide a facility location and receiving water name because the facility may not be located near the discharge point and the receiving water may be large or merely an “unnamed tributary.”

                  33.        For example, on October 19, 2010, ADEM published the following notice:

Quality Coal Co., Inc. – Blue Creek Mine, Post Office Box 2705, Jasper, Alabama 35502, NPDES Permit Number AL0076678, located on Walker County Road 1 near Eldridge, for reissuance of a permit that limits discharges of treated drainage  from a new source coal mine and its associated areas, discharging to Trinity Creek, an Unnamed Tributary to Lost Creek, an Unnamed Tributary to Mallard  Creek, and an Unnamed Tributary to Mill Creek, all classified as Fish and Wildlife and located in the Black Warrior River Basin.

 

County Road 1 “near” Eldridge, Alabama is approximately 3.4 miles in length and runs from downtown Eldridge to north of Interstate 22.  See Figure E-1 (yellow).  Thus, the notice is imprecise about the location of the mine.  Mallards Creek is to the north and west of Eldridge.  Lost Creek, Trinity Creek and Mill Creek are all to the east of Eldridge.  See Figure E-1 (red).  The location of the “Unnamed Tributaries” of these creeks are not identified in the notice.  The number and location of the existing and proposed discharge points are not identified in the notice, but are likely to be anywhere in a 17-square mile area.  See Figure E-1 (green).  This notice does not satisfy the requirement for “a general description of the location of each existing or proposed discharge point.”  The actual number and location of each existing and proposed discharge point is shown in the application.  Figure E-2.

 

FIGURE E-1

Quality Coal Co., Inc. – Blue Creek Mine

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FIGURE E-2

Quality Coal Co., Inc. – Blue Creek Mine

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                  34.        For example, on December 15, 2011, ADEM published the following notice:

 

Birmingham Coal & Coke Company, Inc. - Ninna V Mine, 912 Edenton  Street, Birmingham, Alabama 35242, NPDES Permit Number AL0060682,  located off County Road 38, Nauvoo, for reissuance of a permit that limits discharges of treated drainage from a new source coal mine and associated areas,  discharging to Dry Creek, Blackwater Creek, an Unnamed Tributary to Dry Creek, and an Unnamed Tributary to Blackwater Creek, all classified as Fish and Wildlife and located in the Black Warrior River Basin.

 

County Road 38 is identified in Figure E-3 (yellow).  Dry Creek and Blackwater Creek are to the north and south of County Road 38.  See Figure E-3 (red).  The “Unnamed Tributaries” of these creeks are not identified in the notice.  The number and location of the existing and proposed discharge points are not identified in the notice, but are likely to be anywhere in a 9-square mile area.  See Figure E-3 (green).  This notice does not satisfy the requirement for “a general description of the location of each existing or proposed discharge point.”   The actual number and location of each existing and proposed discharge point is shown in the application.  Figure E-4.

 

FIGURE E-3

Birmingham Coal & Coke Company, Inc. - Ninna V Mine

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FIGURE E-4

Birmingham Coal & Coke Company, Inc. - Ninna V Mine

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                  35.        Many of the public notices included in Exhibit E-3 fail to provide public notice of the general description of the location of existing and proposed discharge points as required by 40 C.F.R. § 123.25(a)(28).

 

                  36.        Where the operation of the State program fails to comply with the requirements of 40 C.F.R. Part 123, including the public participation requirements of 40 C.F.R. § 123.25(a)(28), the State must take corrective action of suffer program withdrawal.  40 C.F.R. § 123.63(a)(2)(iii).  Accordingly, EPA should require corrective action by the State of Alabama. Absent corrective action by the State of Alabama to address this and other program failures, EPA should commence proceedings to withdraw approval of the Alabama NPDES program

 

F. Failure of State to inspect and monitor activities subject to regulation: Major dischargers [40 C.F.R. §§ 123.26(e)(5), 123.63(a)(3)(iii)]

 

 

 

                  37.        State NPDES programs under 40 C.F.R. Part 123 must have compliance and evaluation programs that have procedures and ability for inspecting the facilities of all major dischargers at least annually. 40 C.F.R. § 123.26(e)(5).

 

                  38.        In the Petition and subsequent reply to ADEM’s Response, Petitioners allege that that, for Fiscal Year 2008, the State of Alabama failed to inspect major dischargers at least once per year as required by 40 C.F.R. § 123.26(e)(5). Petition at 17-19, Petition Reply at 42-44.  As evidence for this, Petitioners provided the State Review Framework – CWA Data for Alabama, State Trends Report (U.S. EPA, Jan 5, 2010) (Petition Exhibit F-3)indicating that the State failed to inspect over 46% of major dischargers in 2008; the 2008 State Summary Data for Clean Water Act National Pollutant Discharge Elimination System Majors, Fiscal Year 2008 Final Report (U.S. EPA, July 2, 2009) (Petition Exhibit F-4) indicating that the State failed to inspect 43% of dischargers in 2008; and the Permit Compliance System Report – Inspection Dates of Major Dischargers FY 2008 (Petition Exhibit F-5) which provided that the State failed to inspect 44% of major dischargers.

 

                  39.        According to State Review Framework – CWA Data for Alabama, State Multi Year Report (U.S. EPA, last updated July 5, 2011) (Petition Exhibit A-5), the State of Alabama failed to inspect 44% of major dischargers in FY 2009 and over 46 % of major dischargers in FY 2010.  As shown in Figure F-1 below, this represents a continuing decline in inspections of Major dischargers from previous years.

 

Figure F-1

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                  40.        As demonstrated herein, the State of Alabama does not have compliance and evaluation programs that have procedures and ability for inspecting the facilities of all major dischargers at least annually as required by 40 C.F.R. §123.26(e)(5).

 

                  41.        Where the State’s enforcement program fails to comply with the requirements of 40 C.F.R. Part 123, including failure to inspect and monitor activities subject to regulation, the State must take corrective action or suffer program withdrawal. 40 C.F.R. §123.63(a)(3)(iii).  Accordingly, the EPA should require corrective action by the State of Alabama. Absent corrective action by the State of Alabama to address this and other program failures, EPA should commence proceedings to withdraw approval of the Alabama NPDES program.

 

G. Failure of State to inspect and monitor activities subject to regulation: Non-Major dischargers [40 C.F.R. §§ 123.26(b)(2), 123.63(a)(3)(iii)]

 

 

 

                  42.        State NPDES programs must maintain a program for periodic inspections of the facilities and activities subject to regulation.  40 C.F.R §123.26(b)(2).  While the frequency of these inspections is not specified, the regulation provides a clear purpose for conducting these periodic inspections:

 

These inspections shall be conducted in a manner designed to: (i) Determine compliance or noncompliance with issued permit conditions and other program requirements; (ii) Verify the accuracy of information submitted by permittees and other regulated persons in reporting forms and other forms supplying monitoring data; and (iii) Verify the adequacy of sampling, monitoring, and other methods used by permitees and other regulated persons to develop that information.

 

 

 

40 C.F.R. §123.26(b)(2)(i)-(iii)

 

                  43.        In the Petition and subsequent reply to ADEM’s Response, Petitioners allege that that, for Fiscal Year 2008, the State of Alabama failed to inspect 91% of all non-major dischargers with individual NPDES permits. Petition at 20-21.

 

                  44.        According to the State Review Framework – CWA Data for Alabama, State Multi Year Report (U.S. EPA, last updated July 5, 2011) (Petition Exhibit A-5), the State of Alabama failed to inspect over 78% of non-major dischargers with individual NPDES permits in both FY 2009 and FY 2010.  As shown in Figure G-1 below, this represents a continuing decline in inspections of Non-Major dischargers with individual permits from previous years.

 

Figure G- 1

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                  45         In the Petition and subsequent reply to ADEM’s Response, Petitioners allege that, for Fiscal Year 2008, the State of Alabama failed to inspect 99.4% of all non-major dischargers with general NPDES permits. Petition at 20-21.

 

                  46.        According to the State Review Framework – CWA Data for Alabama, State Multi Year Report (U.S. EPA, last updated July 5, 2011) (Petition Exhibit A-5), the State of Alabama failed to inspect over 93% of non-major dischargers with general NPDES permits in FY 2009 and 86% in FY 2010.  These inspection rates suggest that a general permit holder may only be inspected once every ten years on average.

 

                  47.        As demonstrated herein, the State of Alabama has not maintained a program for periodic inspections of the facilities and activities subject to regulation (including non-major dischargers with individual permits, and non-major dischargers with general permits) as required by 40 C.F.R. §123.26(b)(2) .

 

                  48.        Where the State’s enforcement program fails to comply with the requirements of 40 C.F.R. Part 123, including failure to inspect and monitor activities subject to regulation, the State must take corrective action or suffer program withdrawal. 40 C.F.R. §123.63(a)(3)(iii).  Accordingly, the EPA should require corrective action by the State of Alabama. Absent corrective action by the State of Alabama to address this and other program failures, EPA should commence proceedings to withdraw approval of the Alabama NPDES program.

 

H. Failure of State to maintain procedures for receipt and consideration of alleged violations by public [40 C.F.R. §§ 123.26(b)(4), 123.27(d)(2)(i), 123.63(a)(2)(iii)]

 

 

 

                  49.        State NPDES programs must have procedures for receiving and ensuring proper consideration of information submitted by the public about violations, must encourage public effort in reporting violations, and must make available information on reporting procedures, 40 C.F.R. § 123.26(b)(4); and must provide assurance that the State will investigate and provide written responses to all citizen complaints submitted pursuant to the procedures specified in 40 C.F.R. § 123.26(b)(4). 40 C.F.R. § 123.27(d)(2)(i).

 

                  50.        In the Petition and subsequent reply to ADEM’s response, Petitioners allege that the State of Alabama fails to make available information on violation reporting procedures and does not acknowledge receipt of complaints, provide complainants with copies of inspection reports, or provide complainants with copies of enforcement actions or decisions not to commence enforcement actions.  Petitioners allege that these failures do not conform to the requirements of 40 C.F.R. §123.26(b)(4). Petition at 27, Petition Reply at 49-51.

 

                  51.        Since the Petition, ADEM has posted a new complaint page with the ability to upload photographs.  See http://app.adem.alabama.gov/complaints/submission.aspx. The submission of a complaint generates an instant complaint number which can be used to trace ADEM's response.

 

                  52.        As explained in Petitioners’ Reply to ADEM’s Response, a system that does not identify procedures that it makes available to the public for written, fax, telephone, or in-person complaints or reports is deficient. Petition Reply at 50. 

 

                  53.        ADEM’s complaint process remains deficient in two respects: (1) ADEM refuses to adopt a process that requires ADEM to keep the complainant apprised of ADEM's response; (2) ADEM provides no complaint process for Alabamians without access to computers or the internet which, apart from rendering the State’s complaint process deficient under 40 C.F.R. § 123.26(b)(4), suggests that ADEM remains insensitive to environmental injustice concerns. 

 

                  54.        The State of Alabama has failed to comply with the public participation requirements of 40 C.F.R. §§ 123.26(b)(4) and 123.27(d)(2)(i).

 

                  55.        Where the operation of the State program fails to comply with the requirements of 40 C.F.R. Part 123, including the requirements of 40 C.F.R. § 123 .26(e)(5), the State must take corrective action or suffer program withdrawal. 40 C.F.R. § 123.63(a)(2)(iii).  Accordingly, the EPA should require corrective action by the State of Alabama.  Absent corrective action by the State of Alabama to address this and other program failures, EPA should commence proceedings to withdraw approval of the Alabama NPDES program.

 

I. Failure of State to monitor activities subject to regulation [40 C.F.R. §§ 123.26, 123.63(a)(3)(iii), 123.63(a)(4); Memorandum of Agreement]

 

 

 

                  56.        State NPDES programs are required to have procedures for receipt, evaluation, retention, and investigation for possible enforcement of all notices and reports required of permittees and other regulated persons (and for investigation for possible enforcement of failure to submit these notices and reports). 40 C.F.R § 123.26(a).

 

                  57.        A State NPDES program shall include a Memorandum of Agreement with the Regional Administrator of the U.S. Environmental Protection Agency as required by 40 C.F.R  § 123.24. 40 C.F.R. § 123.21(a)(4).

 

                  58.        National Pollutant Discharge Elimination System Memorandum of Agreement Between the State of Alabama and the United States Environmental Protection Agency, Region IV (April 11, 2008), Section III. A. 5, (ADEM Exhibit A-1 at 4) requires the State to “comprehensively evaluate and assess compliance with permit conditions (e.g. effluent limits and compliance schedules) and any applicable enforcement action as outlined in Section V of this MOA.”

 

For all major dischargers and those other dischargers or types of dischargers identified in the State 106 Workplan, the State will update ICIS-NPDES…with the information necessary to determine if

 

 

 

a.         any required self monitoring reports (including DMRs or other reports required to be submitted pursuant to a permit or an applicable administrative or judicial enforcement action are submitted on time;

 

b.         the submitted reports are complete; and

 

c.         the permit conditions (e.g., effluent limits and compliance schedules) of requirements of an applicable administrative or judicial enforcement action are met.

 

 

 

Memorandum of Agreement, (April 11, 2008) Section V.B.1.  (ADEM Exhibit A-1 at 16-17)

 

 

 

                  59.        National Pollutant Discharge Elimination System Memorandum of Agreement Between the State of Alabama and the United States Environmental Protection Agency, Region IV (April 11, 2008), Section V.B.2 (ADEM Exhibit A-1 at 17), requires that “[t]he State will conduct a timely and substantive review of all [self monitoring reports] and all independently gathered information to evaluate the discharger’s compliance status. 

 

                  60.        National Pollutant Discharge Elimination System Memorandum of Agreement Between the State of Alabama and the United States Environmental Protection Agency, Region IV (April 11, 2008), requires:

 

In the case of a violation by a major discharger, or other dischargers or types of dischargers identified in the state 106 Workplan, or for a violation that would cause a facility to be in [Significant Non-Compliance], the State will determine within thirty (30) days the appropriate initial response to the violation.  Where the State has determined an enforcement action is appropriate, it shall commence such appropriate enforcement action within thirty (30) calendar days of its determination of the initial response.  This response shall be documented in the compliance and/or enforcement file within sixty (60) days of identification of the violation….  The date of identification of the violation is the point at which the state enforcement staff learns of the violation.  The State shall make every effort to pursue and complete all the enforcement actions it takes within a reasonable amount of time.

 

 

 

Enforcement actions determined to be appropriate by the State with respect to [all other violations] should be commenced and completed within a reasonable amount of time

 

 

 

Memorandum of Agreement, (April 11, 2008) Section VI. A. 3,4. (ADEM Exhibit A-1 at 21-22) (emphasis added)

 

 

 

                  61.        National Pollutant Discharge Elimination System Memorandum of Agreement Between the State of Alabama and the United States Environmental Protection Agency, Region IV (April 11, 2008), requires:

 

[T]he State shall submit to EPA for review and comment a current [Enforcement Management System (EMS)].  The EMS is a document outlining procedures, policies, etc., to be used by the State in conducting official business (e.g., inspections, enforcement actions, assessment of penalties, etc.). Such procedures and policies with respect to enforcement shall be consistent with EPA’s “Enforcement Response Guide” for the NPDES program and shall include application of technical review criteria for screening the significance of violations, procedures and time frames for selecting appropriate initial and follow-up response options to identified violations, and procedures for maintaining a chronological summary of all violations…

 

 

 

Memorandum of Agreement, (April 11, 2008) Section V. E. (ADEM Exhibit A-1 at 20).

 

 

 

                  62.        ADEM submitted its EMS on January 28, 2011. Alabama Department of Environmental Management NPDES and Pretreatment Permit Program Compliance/Enforcement Management Strategy (CMS/EMS), (January 28, 2011). Petition Exhibit I-59.

 

                  63.        Subsequent to the Petition, ADEM has made no revisions to its Memorandum #105: Compliance and Enforcement Strategy (ADEM, Sept. 4,2007) (Petition Exhibit I-1). See Email from Azure Jones, ADEM-Permits &Services, to David Ludder (January 19, 2012). Petition. Exhibit I-60.

 

                  64.        In the Petition and subsequent Reply to ADEM’s Response, Petitioners allege that the State of Alabama has failed to comprehensively evaluate and assess compliance with compliance schedules, effluent limitations, and other conditions in NPDES permits; failed to conduct timely and substantive review of all self-monitoring reports received and to evaluate the permittee’s compliance status; failed to screen all Discharge Monitoring Reports (DMRs) from permittees to determine the level and frequency of all violations; and failed to evaluate instances of noncompliance by all major dischargers and those other dischargers or types of dischargers identified in the State 106 Workplan within thirty days of the identification of a violation as required by National Pollutant Discharge Elimination System Memorandum of Agreement Between the State of Alabama and the United States Environmental Protection Agency, Region IV (April 11, 2008). Petition at 28-36, Petition Reply at 51-57.

 

                  65.        Although ADEM has produced an EMS, the Department has still failed to identify the specific operating policies that control the receipt and methodology for evaluating self-monitoring reports (including DMRs or other reports required to be submitted pursuant to a permit or an applicable administrative or judicial enforcement action).   ADEM’s EMS merely provides that “[t]he designated management staff have the responsibility to set compliance and enforcement priorities consistent with this document” Alabama Department of Environmental Management NPDES and Pretreatment Permit Program Compliance/Enforcement Management Strategy (CMS/EMS) (January 28, 2011) (Petition Exhibit I-59 at 5); “[p]rogram staff periodically reviews DMR information for timeliness, completeness, detail, anomalies, and compliance with regulatory requirements”, Id. at 9, and “[b]ased on the volume of the regulated universe and nature of the discharges, the review of DMR information and other routine reports for general permit facilities are made as resources allow with priority given to impaired/TMDL waters, complaint investigations, facilities with historical compliance issues or unpermitted discharges that potentially threaten (based on best professional  judgment) public health and/or water quality”, Id. (emphasis added).

 

                  66.        Absent another, undisclosed policy, EPA must consider the policy descriptions provided by Mr. Chip Crockett, Chief, ADEM NPDES Enforcement Branch, whereby DMRs submitted by major dischargers will be reviewed only once every two years and non-major dischargers will be reviewed only once every five years as part of a “compliance evaluation.”  Electronic mail communication from Chip Crockett to David A. Ludder (Oct 5, 2009) (Petition Exhibit F-1), Petition at 29-35, Petition Reply at 54-57.  Only after these reviews take place will a compliance determination be made and an enforcement response be taken.  Memorandum #105: Compliance and Enforcement Strategy (ADEM, Sept. 4, 2007) at 2-5 (Petition Exhibit I-1). This policy has and will continue to delay enforcement responses for self-reported violations.

 

                  67.        Implementation of the “compliance evaluation” policy is illustrated in the following examples[1]:

 

AL0067041 Huntsville Wood Products

 

The Permittee failed to submit DMRs from March 2010 through December 2012. ADEM completed a comprehensive compliance evaluation of the permit in March, 2012. On March 30, 2012, ADEM sent a Warning Letter to the Permittee for the violations. Petition Exhibit I-61.

 

 

 

AL0045381 Warren Distribution Inc.

 

On December 8, 2010, Permittee submitted a non-compliance notification to ADEM showing discharge violations in November, 2010. ADEM received this notification on or before December 14, 2010. Petition Exhibit I-62.  The Permittee failed to submit DMRs or submitted DMRs that were incomplete on March 2010, June 2010, September 2010, December 2010, March 2011, June 2011, and September 2011. ADEM completed a comprehensive evaluation of the permit in March 2012. On March 30, 2012, ADEM sent a Warning Letter to the Permittee for the violations. Petition Exhibit I-63.

 

 

 

AL0069591 SWWC Utilities, Inc.

 

SWWC Utilities operates the North County WWTP in Madison, Alabama under NPDES Permit No. AL0069591. Pemittee submitted a notification of a Sanitary Sewer Overflow event in December 2010.  This notification was received by ADEM on or before December 3, 2010. Petition Exhibit I-64. Permitte submitted a notification of a Sanitary Sewer Overflow event in November 2011. ADEM received this notification or before November 17, 2011. Petition Exhibit I-65.  The Permittee violated permit limits in August 2010, November 2011, December 2011 and January 2012. ADEM completed a comprehensive evaluation of the permit in March 2012. On March 28, 2012, ADEM sent a Warning Letter to the Permittee for the violations. Petition Exhibit I-66.

 

 

 

AL0054879 Lawrence County Board of Education

 

The Lawrence County Board of Education operates the East Lawrence School Lagoon under NPDES Permit No. AL0054879.  On December 22, 2011, Permittee submitted a non-compliance notification to ADEM for violations in November 2011.  ADEM received the notification on or before December 22, 2011. Petition Exhibit I-67. Timely DMRs submitted by the Permitte show that the Permittee violated permit limits in November2011, December 2011, and January 2012. ADEM completed a comprehensive evaluation of the permit in March 2012.  On March 28, 2012, ADEM sent a Warning Letter to the Permittee for the violations. Petition Exhibit I-68.

 

 

 

AL0067709 Jim Gipson D.B.A. Faulkville Quarry

 

On March 31, 2008, ADEM issued a Notice of Violation to Permittee for failure to submit required DMRs. Petition Exhibit I-69.  ADEM reissued the Permit on February 19, 2009. Petition Exhibit I-70. Permittee has failed to submit any DMRs since the reissuance of the permit. ADEM completed a comprehensive evaluation of the permit in March 2012. On March 28, 2012, ADEM issued a Notice of Violation to the Permittee for the violations. Petition Exhibit I-71.

 

 

 

AL0002844 Power South Energy Cooperative

 

On January 27, 2011, Permittee submitted a non-compliance report to ADEM for violations in November 2010 and December 2010. ADEM received the notification on or before January 28, 2011. Petition Exhibit I-72. In January 2012, Permittee submitted a non-compliance report to ADEM for violations in December 2011.  ADEM received the notification on or before January 25, 2012. Petition Exhibit I-73. ADEM completed a comprehensive evaluation of the permit in March 2012.  On March 26, 2012, ADEM sent a Warning Letter to the Permittee for the violations. Petition Exhibit I-74.

 

 

 

AL0056278 Littleville WWTP

 

The Town of Littleville operates the Littleville WWTP under NPDES Permit No. AL0056278. ADEM completed a comprehensive evaluation of the permit in March 2011.  On March 23, 2011, ADEM sent a Warning Letter to the Permittee for violations in March 2009, May 2009, September 2009, October 2009 December 2009, May 2010, July 2010, September 2010, and November 2010. Petition Exhibit I-75. On April 15, 2011, Permittee submitted a non-compliance report to ADEM for violations in March 2011.  ADEM received the notification on or before April 21, 2011. Petition Exhibit I-76. On May 3, 2011, Permittee submitted a notification of a Sanitary Sewer Overflow event on April 27, 2011.  ADEM received the notification on or before May 3, 2011. Petition Exhibit I-77. On May 31, 2011, ADEM reissued the Permit to the Town of Littleville. Petition Exhibit I-78. On June 13, 2011, Permittee submitted a non-compliance report to ADEM for violations in May 2011. ADEM received the notification on or before June 15, 2011. Petition Exhibit I-79. On August 18, 2011, Permittee submitted a non-compliance report to ADEM for violations in July 2011. ADEM received the notification on or before August 25, 2011. Petition Exhibit I-80. On October 19, 2011, Permittee submitted a non-compliance report to ADEM for violations in September 2011. ADEM received the notification on or before October 21, 2011. Petition Exhibit I-81. On January 1, 2012, Permittee submitted a non-compliance report to ADEM for violations in December 2011. ADEM received the notification on or before January 1, 2012. Petition Exhibit I-82. On January 11, 2012, Permittee submitted a notification of a Sanitary Sewer Overflow event on January 11, 2012. ADEM received the notification on or before February 1, 2012. Petition Exhibit I-83. The Permittee failed to submit DMRs or submitted DMRs that were incomplete on June 2011. ADEM completed a comprehensive evaluation of the permit in March 2012. ADEM issued a Notice of Violation to the Permittee on March 26, 2012. Petition Exhibit I-84.

 

 

 

                  68.        The State of Alabama has failed to comprehensively evaluate and assess compliance with permit conditions (e.g. effluent limits and compliance schedules) and any applicable enforcement action as outlined in National Pollutant Discharge Elimination System Memorandum of Agreement Between the State of Alabama and the United States Environmental Protection Agency, Region IV (April 11, 2008), Section V.; failed to conduct timely and substantive review of all self monitoring reports received and to evaluate permittee’s compliance status; failed to screen all DMRs from permittees to determine the level and frequency of violations; and, in cases of violations by major dischargers, or other dischargers or types of dischargers identified in the State 106 Workplan, or for a violation that would cause a facility to be in Significant Non-Compliance, the State fails to determine within thirty days of identification of a violation the appropriate initial response to the violations and, where the State has determined an enforcement action is appropriate, to commence such appropriate enforcement action within thirty calendar days of its determination of the initial response; the State fails to document in the compliance and/or enforcement files within sixty days of identification of the violation; the State fails to make every effort to pursue and complete enforcement actions it takes within a reasonable amount of time; and for enforcement action determined to be appropriate by the State with respect to all other violations the state fails to commence and complete such actions within a reasonable amount of time as required by National Pollutant Discharge Elimination System Memorandum of Agreement Between the State of Alabama and the United States Environmental Protection Agency, Region IV (April 11, 2008), Sections II, IV, and V (ADEM Exhibit A-1).

 

                  69.        Where the State program fails to comply with the terms of the Memorandum of Agreement required under 40 C.F.R. § 123.24, or where the State’s enforcement program fails to comply with the requirements of 40 C.F.R. Part 123, including 40 C.F.R. § 123.26(a) the State must take corrective action or suffer program withdrawal. 40 C.F.R § 123.63(a)(4).  Accordingly, the EPA should require corrective action by the State of Alabama.  Absent corrective action by the State of Alabama to address this and other program failures, EPA should commence proceedings to withdraw approval of the Alabama NPDES program. 

 

J. Failure of State to maintain a vigorous program of taking timely and appropriate enforcement action [ Memorandum of Agreement; 40 C.F.R §§ 123.21(a)(4), 123.63(a)(4)]

 

 

 

                  70.        A State NPDES program shall include a Memorandum of Agreement with the Regional Administrator of the U.S. Environmental Protection Agency as required by 40 C.F.R. § 123.24. 40 C.F.R. § 123.21(a)(4).

 

                  71.        National Pollutant Discharge Elimination System Memorandum of Agreement Between the State of Alabama and the United States Environmental Protection Agency, Region IV, (April 11, 2008) Section III, A, 6 (ADEM Exhibit A-1 at 4) requires the State of Alabama to “Maintain a vigorous program of taking timely and appropriate enforcement action” against all dischargers found to be in violation of either state or federal regulations. 

 

                  72.        In the Petition and subsequent Reply to ADEM’s Response, Petitioners allege that the State of Alabama has failed to maintain a vigorous program of taking timely and appropriate enforcement action as required by National Pollutant Discharge Elimination System Memorandum of Agreement Between the State of Alabama and the United States Environmental Protection Agency, Region IV, (April 11, 2008) Section III, A, 6.

 

                  73.        Since the Petition the State has failed to take any enforcement action, or failed to take timely and appropriate action against the following violators of permits and program requirements[2] :

 

AL0026832 Golden Rod Boilers (Major)

 

Cullman, Al

 

Eight Mile Creek

 

Warning letter sent in response to violations in January and February 2011. Violations resumed on or before May 2011. No subsequent enforcement action.

 

 

 

AL0025984 City of Tuskegee Utilities Board (Major)

 

Tuskegee South WPCP - Tuskegee, AL

 

Calebee Creek

 

Violations commenced on or before 1/2004. Informal enforcement action by ADEM on 9/7/2005. Violations continued thereafter. Informal enforcement action by ADEM on 11/30/2005. Violations continued thereafter. Warning Letter issued by ADEM on 7/20/2007. Violations continued thereafter. ADEM issued Consent Order 07-037-CWP on 1/17/2007 requiring compliance not later than date indicated in future compliance plan and assessing a $7,800 penalty for past violations. ADEM received stipulated penalties on 1/2/2008, 1/28/2008, and 3/4/2008.  Violations continued thereafter. Facility is listed in the EPA’s OECA's February 2012 Clean Water Act (CWA) Watch List. Petition Exhibit J-8

 

 

 

AL0059218 Opelika Eastside WWTP (Major)

 

Opelika, Al

 

Unnamed Tributary to Halawaka Creek

 

ADEM issued a warning letter on 9/29/2011 for violations in May and June of 2011. Petition Exhibit J-9. On November 15, 2011, ADEM made a “No Action” determination on 11/15/2011. Petition Exhibit J-10. Violations continued in December 2011. Petition Exhibit J-11.  No subsequent enforcement action. Facility is listed in the EPA’s OECA's February 2012 Clean Water Act (CWA) Watch List. Petition Exhibit J-8

 

 

 

AL0000973 Hunt Refining Company (Major)

 

Tuscaloosa, Al

 

On November 12, 2009, ADEM issued a Notice of Violation for violations occurring in May 2008, July 2008, August 2008, January 2009, and February 2009. Petition Exhibit J-12 Violations resumed in December 2010.  No subsequent enforcement action. Facility is listed in the EPA’s OECA's February 2012 Clean Water Act (CWA) Watch List. Petition Exhibit J-8

 

 

 

AL0020044 City of Enterprise (Major)

 

Enterprise Southeast Lagoon - Enterprise, AL

 

Cowpen Creek

 

Violations commenced on or before 11/2005. Informal enforcement action by ADEM on 12/19/2005. Violations continued thereafter. Informal enforcement action by ADEM on 11/08/2006. Violations continued thereafter. Notice of Violation issued by ADEM on 8/24/2007. Violations continued thereafter. ADEM issued a notice of violation on January 12, 2011. Petition Exhibit J-13. Violations continued thereafter.  ADEM made a “No Action” determination on June 28, 2011. Petition Exhibit J-14.  Violations.  Violations continued thereafter. No subsequent enforcement action. Facility is listed in the EPA’s OECA's February 2012 Clean Water Act (CWA) Watch List. Petition Exhibit J-8

 

 

 

AL0003697 Enterprise Processing Plant (Major)

 

Pilgrims Pride, Enterprise, Al

 

Violations began on or before 6/30/2009. No enforcement action. Facility is listed in the EPA’s OECA's February 2012 Clean Water Act (CWA) Watch List. Petition Exhibit J-8

 

 

 

AL0069701 AAF McQuay International

 

Scottsboro, Al

 

Unnamed Tributary to Roseberry Creek

 

Violations began on or before March 2009. No enforcement

 

 

 

AL0057657 Attalla Wastewater Treatment Lagoon

 

Rainbow City, Al

 

Coosa River

 

Violations began on or before April 2011. No enforcement

 

 

 

AL0051161 Bottenfield Jr. High School Lagoon

 

Adamsville, Al

 

Warning letter sent on December 9, 2009 for violations occurring in February 2008, April 2008, May 2008, December 2008 and January 2009 and for missing reports from November 2008, March 2009, April 2009, and August 2009. Violations resumed on or before January 2010. No subsequent enforcement.

 

 

 

AL0062308 Brown Wood Preserving Swamp

 

Northport, Al

 

Thorton creek

 

Violations began on or before January 2009. No enforcement

 

 

 

AL0065731 C.T. Perry Water Treatment Plant

 

Montgomery, Al

 

Tallapoosa River

 

Violations began on or before January 2010. No enforcement.

 

 

 

AL0055166 Castlen Elem School WWTP

 

Grand Bay, Al

 

Franklin Creek

 

Violations began on or before December 2009. No enforcement.

 

 

 

AL0060887 Citronelle WWTP

 

Citronelle, Al

 

Consent Decree entered June 5, 2009. Violations began on or before August 2009. No subsequent enforcement.

 

 

 

AL0065480 Double Springs WWTP

 

Double Springs, Al

 

Sipsey Fork

 

Violations began on or before May 2010. No enforcement action.

 

 

 

Al0046744 Fountain Holman Correctional

 

Atmore, Al

 

Wetweather Creek

 

Violations began on or before January 2009. No enforcement action taken.

 

 

 

AL0042391 Leroy High School

 

Leroy, Al

 

Unnamed Tributary to Bassetts Creek

 

Violations began on or before January 2009. No enforcement action

 

 

 

AL0045683 Linden HCR Lagoon

 

Linden, Al

 

Sycamore Creek

 

Violation began on or before January 2009.  ADEM made no action determinations in January 2010 and April 2011. Violations continued. No subsequent enforcement action.

 

 

 

AL0069418 Alabama Renderers, Inc., Loxley

 

Loxley, Al

 

Unnamed tributary (Impaired)

 

Violations began on or before March 2009. No enforcement action

 

 

 

AL0079081 Meadowbrook HCR Lagoon

 

Camden, Al

 

Pursley Creek

 

Violations began on or before June 2009. No enforcement action.

 

 

 

AL0064335 Miller Johnson Seafood

 

Coden, Al

 

Heron, Bay

 

Violations began on or before March 2009. No enforcement action

 

 

 

AL0023761 New Hope Lagoon

 

New Hope, Al

 

Paint Rock River

 

Violations began on or before January 2009. ADEM issued an NOV in April 2011.  Violations resumed on or before October 2011.  No subsequent enforcement action.

 

 

 

AL0059315 Oak Hills Wastewater Lagoon

 

Montgomery, Al

 

Catoma Creek

 

Violations began on or before January 2009. No enforcement action.

 

 

 

AL0058688 Ozark North East Lagoon

 

Ozark, Al

 

West Fork of the Choctawhatchee River

 

Violations began on or before April 2009.  ADEM made a “No Action” determination in December 2009.  Violations resumed in June 2010. No subsequent enforcement action.

 

 

 

AL0044644 Piney Chapel School WWTP

 

Athens, Al

 

Unnamed Tributary to Muddy Creek

 

ADEM made a “No Action” determination in June 2009.  Violations began or resumed on or before September 2009.  No subsequent enforcement action.

 

 

 

AL0057509 Suntrace Mobile Home Park, LLC

 

Troy, Al

 

Unnamed Tributary to Walnut Creek

 

Violations began on or before January 2009. No enforcement action.

 

 

 

AL0022349 Talladega Brecon WWTP

 

Talladega, Al

 

Violations began on or before January 2009. ADEM makes “No Action” determination in October 2011 despite 33 exceedences and 38 Sanitary Sewer Overflows over a two year period. Violations resumed in December 2011. No subsequent enforcement action.

 

 

 

                  74.        The State of Alabama has failed to maintain a vigorous program of taking timely and appropriate enforcement action as required by National Pollutant Discharge Elimination System Memorandum of Agreement Between the State of Alabama and the United States Environmental Protection Agency, Region IV, (April 11, 2008) Section III, A, 6.

 

                  75.        Where the State program fails to comply with the terms of the Memorandum of Agreement required under 40 C.F.R. § 123.24, the State must take corrective action or suffer program withdrawal. 40 C.F.R. § 123.63(a)(4). Accordingly, the EPA should require corrective action by the State of Alabama. Absent corrective action by the State of Alabama to address this and other program failures, EPA should commence proceedings to withdraw approval of the Alabama NPDES program.

 

K. Failure of State to seek adequate enforcement penalties:  Computation of violations of average limits [40 C.F.R. §§ 123.27(c), 123.63(a)(3)(ii)]

 

 

 

                  76.        40 C.F.R. § 123.27(c) requires that a civil penalty assessed, sought, or agreed upon by the State Director under 40 C.F.R. § 123.27(a)(3) shall be appropriate to the violation.

 

                  77.        In the Petition and subsequent Reply to ADEM’s response, Petitioners assert that the State of Alabama failed to seek penalties that are appropriate to the violation as required by 40 C.F.R. §127.27(c). Petition at 42-43, Petition Reply at 64-68.  Specifically, Petitioners assert that in proceedings to enforce the Clean Water Act, a violation of a weekly average and monthly average discharge limitation is counted as a violation of each day of the week or month, see Interim Clean Water Act Settlement Policy (U.S. EPA, 1995) at Attachment 1 (Petition Exhibit K-1); Atlantic States Legal Found., Inc. v. Tyson Foods, Inc., 897 F.2 1128, 1139-1140 (11th Cir. 1990) (monthly average violations counted as violation of each day of month), whereas in proceedings to enforce state law, the State of Alabama has historically counted a violation of a weekly average or monthly average discharge limitation as a single violation subject to a penalty.

 

                  78.        ADEM continues to assess penalties for violations of monthly average limits and weekly average limits as a single violation rather than as multiple violations consistent with Atlantic States Legal Found., Inc. v. Tyson Foods, Inc., 897 F.2 1128, 1139-1140 (11th Cir. 1990) and Interim Clean Water Act Settlement Policy (U.S. EPA, 1995) at Attachment 1 (Petition Exhibit K-1).

 

                  79.        For example, ADEM cited ACRLIN USA, Inc. for “29 discrete violations of the [NPDES] Permit” and assessed a penalty of $7,488 based on 29 effluent limitation violations.  ACRLIN USA, Inc., Consent Order 10-179-CWP (Sep. 30, 2010). Petition Exhibit K-14.  Applying the methods dictated by Atlantic States Legal Found., Inc. v. Tyson Foods, Inc. and EPA’s Interim Clean Water Act Settlement Policy, the number of violations subject to a penalty should have been 491.

 

                  80.        In another example, ADEM cited Hope Coal Co., Inc. for “174 discrete violations of the [NPDES] Permits” and assessed a penalty of $33,500 based on 174 effluent limitation violations.  Hope Coal Co., Inc., Consent Order 11-058-CWP (Feb. 25, 2011). Petition Exhibit K-15.  Applying the methods dictated by Atlantic States Legal Found., Inc. v. Tyson Foods, Inc. and EPA’s Interim Clean Water Act Settlement Policy, the number of violations subject to a penalty should have been 3,129.

 

                  81.        Although the above examples involve administrative penalties rather than judicial penalties, both are based on the same statutory authority in Ala. Code § 22-22A-5(18)c.  Thus, ADEM’s interpretation of § 22-22A-5(18)c. in the judicial penalty context must be the same as in the administrative penalty context.  In ADEM’s response to public comment on National Coal of Alabama, Inc.,  Consent  Order  11-003-CWP  (Oct. 1, 2010), ADEM explains its rationale for disregarding Atlantic States Legal Found., Inc. v. Tyson Foods, Inc. and EPA’s Interim Clean Water Act Settlement Policy as follows:

 

ADEM Admin. Code r. 335-6-6-.02 defines the monthly average limitation as being the highest allowable average of daily discharges over a calendar month, calculated as the sum of all daily discharges measured during a calendar month divided by the number of daily discharges measured during the month.  Because the monthly average limitation can only be calculated once per month over the entire range of daily discharges in that month, a violation of the monthly average permit limitation cannot mathematically occur more than once per month.

 

 

 

Petition Exhibit K-16.

 

 

 

                  82.        ADEM’s method for determining the number of violations of average limitations necessarily results in fewer violations being subject to penalties and inadequate penalties.

 

                  83.        The State of Alabama has failed to assess, seek, or agree to civil penalties appropriate to the violation as required by 40 C.F.R. § 123.27(c).

 

                  84.        Where the operation of the State program fails to comply with the requirements of 40 C.F.R. Part 123, including the requirements of 40 C.F.R. §123.27(c), the State must take corrective action or suffer program withdrawal.  40 C.F.R § 123.63(a)(2)(iii).  Accordingly, the EPA should require corrective action by the State of Alabama.  Absent corrective action by the State of Alabama to address this and other program failures, EPA should commence proceedings to withdraw approval of the Alabama NPDES program.

 

L. Failure of State to seek adequate enforcement penalties: Identification of all violations [40 C.F.R. §§ 123.27(c), 123.63(a)(3)(ii)]

 

 

 

                  85.        40 C.F.R. § 123.27(c) requires that a civil penalty assessed, sought, or agreed upon by the State Director under 40 C.F.R. § 123.27(a)(3) shall be appropriate to the violation.

 

                  86.        In the Petition and subsequent reply to ADEM’s response, Petitioners allege that the State of Alabama failed to assess, seek, or agree to civil penalties appropriate to the violation as required by 40 C.F.R. § 123.27(c). Petition at 43-46, Petition Reply 68-72.  To put the issue in perspective, Petitioners provided a comparison of the penalties assessed and agreed to by ADEM from FY 2004 to FY2009. Petition at 46, Para 115.

 

                  87.        In the two years since the Petition was filed, ADEM’s Administrative order penalties for surface water increase slightly in 2010 to $666,988.00 (Petition Exhibit L-10) and fell in 2011 to $461,250 (Petition Exhibit L-11).  This shows a continuing trend of reduced penalties when compared to FY2007 ($1,239,740) and FY2008 ($1,274, 270).

 

                  88.        The State of Alabama has failed to assess, seek, or agree to civil penalties appropriate to the violation as required by 40 C.F.R. §123.27(c). 

 

                  89.        Where the operation of the State program fails to comply with the requirements of 40 C.F.R. Part 123, including the requirements of 40 C.F.R. § 123.27(c), the State must take corrective action or suffer program withdrawal. 40 C.F.R. § 123.63(a)(2)(iii). Accordingly, the EPA should require corrective action by the State of Alabama.  Absent corrective action by the State of Alabama to address this and other program failures, EPA should commence proceedings to withdraw approval of the Alabama NPDES program.

 

M. Failure to seek enforcement penalties: Two year limitation period [40 C.F.R. §§ 123.27(c), 123.63(a)(3)(ii)]

 

 

 

                  85.        40 C.F.R. § 123.27(c) requires that a civil penalty assessed, sought, or agreed upon by the State Director under 40 C.F.R. § 123.27(a)(3) shall be appropriate to the violation.

 

                  86.        Administrative and judicial penalties under the Clean Water Act shall be assessed for violations occurring up to five years prior to the administrative or judicial action. 28 U.S.C. § 2462. See Petition at 46-47.

 

                  87.        In the Petition and subsequent Reply to ADEM’s Response, Petitioners allege that the State of Alabama failed to assess, seek, or agree to administrative or judicial penalties for any violations occurring more than two years prior to commencement of the administrative or judicial action.  Petition at 46-47, Petition Reply at 72-73.

 

                  88.        Petitioners are unaware of any corrective action by the State of Alabama to address this program failure and violators continue to benefit from this deficiency. For example:

 

 

 

AL0056278 Littleville WWTP

 

The Town of Littleville operates the Littleville WWTP under NPDES Permit No. AL0056278. Permittee submitted a notification of a Sanitary Sewer Overflow on September 4, 2008.  ADEM received the notification on or about September 4, 2008. Petition Exhibit M-1. ADEM completed a comprehensive evaluation of the permit in March 2011.  On March 23, 2011, ADEM sent a Warning Letter to the Permittee for violations in March 2009, May 2009, September 2009, October 2009 December 2009, May 2010, July 2010, September 2010, and November 2010. Petition Exhibit I-75. No violations were cited that went back more than two years including the September 4, 2008 SSO.  No enforcement action has been taken on the September 4, 2008 event.

 

 

 

Black Warrior Minerals, Inc.

 

Fleetwood Mine, NPDES Permit No. AL0071358

 

Violations dating from February 2008. Petition Exhibit M-2. November 28, 2011 ADEM files suit (No. 63-CV-2011-900978). Petition Exhibit M-3. No penalties authorized under State law for violations prior to November 28, 2009

 

 

 

Utilities Board of the City of Tuskegee

 

Tuskegee South Water Pollution Control Plant, NPDES Permit No. AL0025984

 

Violations dating from January 18, 2007. Petition Exhibit M-4. December 22, 2010 Attorney General and ADEM file suit (No. 46-CV-2010-900128). Petition Exhibit M-5. No penalties for violations prior to December 10, 2008

 

 

 

The Water and Sewer Board of the Town of Leighton

 

Wastewater Treatment Facility, NPDES Permit No. AL0071901

 

Violations dating from July 2007. Petition Exhibit M-6. December 7, 2010 Attorney General and ADEM file suit (No. 20-CV-2010-900232). Petition Exhibit M-7. No penalties authorized under State law for violations prior to December 7, 2008

 

 

 

The Water Works and Sewer Board of the City of Demopolis

 

Demopolis Wastewater Treatment Plant, NPDES  Permit  No.  AL0046138

 

Violations dating from December 2004. Petition Exhibit M-8. April 8, 2010 Attorney General and ADEM file suit (No. 48-CV-2010-900032). Petition Exhibit M-9. No penalties for violations prior to April 8, 2008

 

 

 

Town of Wadley

 

Town of Wadley Lagoon,  NPDES Permit No. AL0062847

 

Violations dating from June 2003. Petition Exhibit M-10. August 18, 2008 Attorney General and ADEM file suit (No. 56-CV-2008-900036). Petition Exhibit M-11. No penalties authorized under State law for violations prior to August 18, 2006

 

 

 

Alabama Department of Mental Health and Mental Retardation

 

Searcy Hospital Lagoon, NPDES Permit No. AL0056928

 

Violations dating from April 2005. Petition Exhibit M-12. August 4, 2008 Attorney General and ADEM file suit (No. 03-CV-2008-900806). Petition Exhibit M-13. No penalties for violations prior to August 4, 2006

 

 

 

Alabama Department of Conservation and Natural Resources

 

Upper Wastewater Treatment Plant at Cheaha Resort State Park, NPDES Permit No. AL0046728

 

Violations dating from May 2003. Petition Exhibit M-14. July 3, 2008 Attorney General files suit (No. 03-CV-2008-900707). Petition Exhibit M-15. No penalties authorized under State law for violations prior to July 3, 2006

 

 

 

City of Dothan

 

Beaver Creek Wastewater Treatment Plant, NPDES Permit No. AL0022756

 

Violations dating from April 2005. Petition Exhibit M-16. June 10, 2008 Attorney General files suit (No. 38-CV-2008-900196). Petition Exhibit M-17. No penalties for violations prior to June 10, 2006

 

 

 

DeKalb County Board of Education

 

Ider High School Wastewater Treatment Plant, NPDES Permit No. AL0043851

 

Violations dating from February 2005. Petition Exhibit M-18. May 20, 2008 Attorney General files suit (No. 28-CV-2008-900063). Petition Exhibit M-19. No penalties for violations prior to May 20, 2006

 

 

 

DeKalb County Board of Education

 

Sylvania High School Wastewater Treatment Plant, NPDES  Permit  No.  AL0051004

 

Violations dating from July 2005. Petition Exhibit M-20. May 20, 2008 Attorney General files suit (No. 28-CV-2008-900063) Petition Exhibit M-19. No penalties authorized under State law for violations prior to May 20, 2006

 

 

 

Town of Carrollton

 

Carrollton HCR Lagoon, NPDES Permit No. AL0020907

 

Violations dating from March 2003. Petition Exhibit M-21. April 22, 2008 Attorney General files suit (No. 54-CV-2008-900021). Petition Exhibit M-22. No penalties authorized under State law for violations prior to April 22, 2006

 

 

 

City of Marion

 

Marion Water Treatment Plant,  NPDES Permit No. AL0052639

 

Violations dating from December 2004. Petition Exhibit M-23. April 9, 2008 Attorney General files suit (No. 53-CV-2008-900016). Petition Exhibit M-24. No penalties authorized under State law for violations prior to April 9, 2006

 

 

 

Town of Cuba

 

Cuba Wastewater Treatment Plant, NPDES Permit No. AL0064386

 

Violations dating from September 2004. Petition Exhibit M-25. April 9, 2008 Attorney General files suit (No. 60-CV-2008-900017). Petition Exhibit M-26. No penalties authorized under State law for violations prior to April 9, 2006

 

 

 

City of Dadeville

 

City of Dadeville Wastewater Treatment Plant, NPDES Permit  No. AL0063797

 

Violations dating from July 2002. Petition Exhibit M-27. May 4, 2007 Attorney General files suit (No. 62-CV-2007-000050). Petition Exhibit M-28. No penalties authorized under State law for violations prior to May 4, 2005

 

 

 

                  89.        The State of Alabama has failed to seek civil penalties that are appropriate to the violation as required by 40 C.F.R. § 123.27(c).

 

                  90.        Where the operation of the State program fails to comply with the requirements of 40 C.F.R Part 123, including the requirements of 40 C.F.R § 123.27 (c), the State must take corrective action or suffer program withdrawal. 40 C.F.R. § 123.63 (a)(2)(iii). Accordingly, the EPA should require corrective action by the State of Alabama. Absent corrective action by the State of Alabama to address this and other program failures, EPA should commence proceedings to withdraw approval of the Alabama NPDES programs.

 

N. Failure of State to seek adequate enforcement penalties:  Recovery of economic benefit [40 C.F.R. §§ 123.27(c), 123.63(a)(3)(ii)]

 

 

 

                  91.        40 C.F.R. § 123.27(c) requires that a civil penalty assessed, sought, or agreed upon by the State Director under 40 C.F.R. § 123.27(a)(3) shall be appropriate to the violation.  “Insuring that violators do not reap economic benefit by failing to comply with the statutory mandate is of key importance if the penalties are successfully to deter violations.”  Atlantic States Legal Found., Inc. v. Tyson Foods, Inc., 897 F.2d 1128, 1141 (11th Cir. 1990).  Typically, the benefit component is represented by the present value of avoided costs of compliance (e.g., avoided operation and maintenance costs) plus the potential return on investment of avoided costs of compliance and the potential return on investment of delayed costs of compliance (e.g., interest on delayed capital expenditures).  Economic Benefit: Context, Theory and Methodology (U.S. EPA) (Exhibit N-2).  Delayed capital expenditures are those expenditures which should have been made to maintain compliance.

 

                  92.        In the Petition and subsequent reply to ADEM’s response, Petitioners allege that the State of Alabama failed to seek civil penalties that are appropriate to the violation as required by 40 C.F.R § 123.27(c) because the State failed to address all violations. Petition at 47-50, Petition Reply at 73-75.

 

                  93.        Recent administrative penalty orders developed and issued by ADEM fail to make an accurate and complete assessment of “the economic benefit which delayed compliance may

 

confer upon [the violator].”  For example:

 

Burroughs Construction Company, Inc., Unpermitted Facility File #44613.2

 

ADEM inspected this construction site on September 24, 2010, April 6, 2011, and August 18, 2011.  Each time, ADEM documented that construction activity had commenced and was continuing without NPDES coverage and documented failure to implement and maintain effective best management practices.  On March 6, 2012, ADEM issued an administrative penalty order.  Petition Exhibit N-16.  ADEM determined that “[t]he owner/operator has delayed certain costs associated with implementing and maintaining proper BMPs and with registering for NPDES coverage.  In consideration of the economic benefit to the owner/operator, the Department enhanced the penalty by an additional $200.00.”  ADEM failed to identify the specific BMPs that were not implemented and maintained and the costs associated with those BMPs (including materials and avoided labor costs for installation and periodic inspection and maintenance).  ADEM failed to identify the specific costs associated with obtaining a NPDES registration (including preparation of a CBMPP by a registered professional engineer, preparation of a notice of registration, and ADEM filing fee).  ADEM failed to identify the interest rate or delay period it used to calculate economic benefit.  Without such details, the public cannot understand the basis for the $200.00 economic benefit determined by ADEM.

 

 

 

Oakley Excavating, Inc., NPDES ALR168243

 

ADEM inspected this construction site on July 19, 2011, August 25, 2011 and September 27, 2011.  Each time, ADEM documented failure to implement and maintain effective best management practices.  The operator’s NPDES coverage expired on August 14, 2011 and was not renewed until September 26, 2011.  On February 6, 2012, ADEM issued an administrative penalty order.  Order 12-065-CWP. Petition Exhibit N-17.  ADEM determined that “[t]he Operator has avoided and/or delayed costs associated with maintaining a valid NPDES registration and proper implementation and maintenance of BMP’s.”  ADEM included an economic benefit of $1,700.00 in the penalty.  ADEM failed to identify the specific BMPs that were not implemented and maintained and the costs associated with those BMPs (including materials and avoided labor costs for installation and periodic inspection and maintenance).  ADEM failed to identify the specific costs associated with maintaining a valid NPDES registration (including preparation of a CBMPP by a registered professional engineer, preparation of a notice of registration, and payment of ADEM filing fee).  ADEM failed to identify the interest rate or delay period it used to calculate economic benefit.  Without such details, the public cannot understand the basis for the $1,700.00 economic benefit determined by ADEM.

 

 

 

McWane, Inc., NPDES ALR16EFP3

 

ADEM inspected this construction site on August 12, 2011 and September 16, 2011.  Each time, ADEM documented failure to implement and maintain effective best management practices.  On December 8, 2011, ADEM proposed an administrative penalty order.  Petition Exhibit N-18.  ADEM determined that “[t]he owner/operator has delayed certain costs associated with implementing and maintaining proper BMPs.  In consideration of the economic benefit to the owner/operator, the Department enhanced the penalty by an additional $100.00.”  ADEM failed to identify the specific BMPs that were not implemented and maintained and the costs associated with those BMPs (including materials and avoided labor costs for installation and periodic inspection and maintenance).  ADEM failed to identify the interest rate or delay period it used to calculate economic benefit.  Without such details, the public cannot understand the basis for the $100.00 economic benefit determined by ADEM.  No final order has been posted on eFile.

 

 

 

City of Mobile, NPDES ALS000002

 

On November 17, 2011, ADEM issued a proposed order to the City of Mobile. Petition Exhibit N–19.  The order cited the City for failure to provide a program to enforce controls on new development or significant redevelopment and failure to provide an adequate program of construction site inspections and enforcement of controls.  ADEM stated that “[t]he Operator avoided or delayed certain costs associated with maintaining full compliance with the permit requirements; however the Department believes the civil penalty in this matter is sufficient to address any economic benefit associated with these costs.”  ADEM included no penalty amount for economic benefit.   ADEM failed to determine the value of the economic benefit from the City’s violations.  It is not appropriate or lawful for ADEM to waive consideration of the economic benefit component of a penalty assessment merely because ADEM believes other components of the penalty assessment will provide sufficient deterrence.  No final order has been posted on eFile.

 

 

 

Four Star Land Ventures, LLC, NPDES ALR16A789

 

ADEM inspected this construction site on July 20, 2011 and September 9, 2011.  On each occasion, ADEM documented that the operator has failed to properly implement and maintain effective best management practices and that discharges had caused offsite accumulations of sediment.  On January 6, 2012, ADEM issued an administrative penalty order.  Order 12-056-CWP. Petition Exhibit N-20.  ADEM determined that “[t]he owner/operator has delayed certain costs associated with implementing and maintaining proper BMPs.  In consideration of the economic benefit to the owner/operator, the Department enhanced the penalty by an additional $1,100.00.”  ADEM failed to identify the specific BMPs that were not implemented and maintained and the costs associated with those BMPs (including materials and avoided labor costs for installation and periodic inspection and maintenance).  Without such details, the public cannot understand the basis for the $1,100.00 economic benefit determined by ADEM.

 

 

 

GTG Development, LLC, NPDES ALR16EEB9

 

ADEM inspected this construction site on July 13, 2011 and documented that the operator had not obtained NPDES coverage for the site although regulated disturbance activities and/or discharges were continuing and that the operator had not properly implemented or maintained effective best management practices.  The operator also constructed a stream crossing that resulted in water quality impacts and an accumulation of sediment downstream.  On December 2, 2011, ADEM issued an administrative penalty order.  Consent Order 12-032-CWP. Petition Exhibit N-21.  ADEM determined that “[t]he Operator has delayed certain costs associated with obtaining/maintaining a valid NPDES permit.  The Operator has delayed certain costs associated with implementing and maintaining effective BMPs. In consideration of the economic benefit to the Operator, the Department enhanced the penalty by an additional $200.”  ADEM failed to determine whether any economic benefit resulted from the improperly designed and constructed stream crossing (including materials and labor costs).  ADEM failed to identify the specific BMPs that were not implemented and maintained and the costs associated with those BMPs (including materials and avoided labor costs for installation and periodic inspection and maintenance).  ADEM failed to identify the specific costs associated with obtaining a valid NPDES permit (including preparation of a CBMPP by a registered professional engineer, preparation of a notice of intent, and payment of ADEM filing fee).  ADEM failed to identify the interest rate or delay period it used to calculate economic benefit.  Without such details, the public cannot understand the basis for the $200.00 economic benefit determined by ADEM.

 

 

 

Phenix City Board of Education, NPDES ALR16EEY7

 

ADEM inspected this construction site on October 6, 2010 and documented that the operator had not properly implemented and maintained effective best management practices.  ADEM also documented offsite sediment accumulation in a creek.  ADEM inspected the site again on July 13, 2011 and documented that the operator had not obtained NPDES coverage for the site although regulated disturbance activities and/or discharges were continuing.  ADEM also documented that the operator had not properly implemented and maintained effective best management practices resulting in offsite sediment accumulation in a creek.  On December 7, 2011, ADEM issued an administrative penalty order.  Consent Order 12-035-CWP. Petition Exhibit N-22.  ADEM determined that “[t]he Operator has delayed certain costs associated with obtaining/maintaining a valid NPDES permit.  The Operator has delayed certain costs associated with implementing and maintaining effective BMPs.  In consideration of the economic benefit to the Operator, the Department enhanced the penalty by an additional $100.”  ADEM failed to identify the specific BMPs that were not implemented and maintained and the costs associated with those BMPs (including materials and avoided labor costs for installation and periodic inspection and maintenance).  ADEM failed to identify the specific costs associated with obtaining NPDES coverage (including preparation of a CBMPP by a registered professional engineer, preparation of a notice of intent/registration, and payment of ADEM filing fee).  ADEM failed to identify the interest rate or delay period it used to calculate economic benefit.  Without such details, the public cannot understand the basis for the $100.00 economic benefit determined by ADEM.

 

 

 

New Castle Development, Inc., NPDES ALR16ECWV

 

ADEM inspected this construction site on June 8, 2011 and documented that the operator had not obtained NPDES coverage for the site prior to commencing regulated disturbance activities and that the operator had not properly implemented or maintained effective best management practices.  On August 17, 2011, ADEM proposed an administrative penalty order.  Petition Exhibit N-23.  ADEM determined that “[t]he owner/operator has delayed certain costs associated with obtaining/maintaining a valid NPDES permit.  The Operator has delayed certain costs associated with obtaining/maintaining a valid NPDES permit.  In consideration of the economic benefit to the owner/operator, the Department enhanced the penalty by an additional $100.00.”  ADEM later explained that “[t]he economic benefit in this case was the time value of money associated with the delayed permit fee.” Electronic mail correspondence from Steven O. Jenkins dated September 26, 2011.  Petition Exhibit N-24.  This explanation was reiterated in correspondence from Steven O. Jenkins dated October 3, 2011.  Petition Exhibit N-25.  ADEM failed to identify the specific costs associated with obtaining NPDES coverage (including preparation of a CBMPP by a registered professional engineer, preparation of a notice of intent/registration, and payment of ADEM filing fee).  ADEM failed to consider the costs associated with BMPs that were not implemented and maintained (including materials and avoided labor costs for installation and periodic inspection and maintenance). ADEM failed to identify the interest rate or delay period it used to calculate economic benefit.  Without such details, the public cannot understand the basis for the $100.00 economic benefit determined by ADEM.  The order was made final on October 3, 2011.  Consent Order 12-002-CWP, Petition Exhibit N-26.

 

 

 

                  94.        The State of Alabama has failed to assess, seek, or agree to civil penalties appropriate to the violation as required by 40 C.F.R. § 123.27(c).

 

                  95.        Where the operation of a State program fails to comply with the requirements of 40 C.F.R. Part 123, including the requirements of 40 C.F.R. § 123.27(c), the State must take corrective action or suffer program withdrawal. 40 C.F.R. § 123.63(a)(2)(iii). Accordingly, the EPA should require corrective action by the State of Alabama. Absent corrective action by the State of Alabama to address this and other program failures, EPA should commence proceedings to withdraw approval of the Alabama NPDES program.

 

O. Failure of State to seek adequate enforcement penalties: Degree of culpability [40 C.F.R. §§ 123.27(c), 123.63(a)(3)(ii)]

 

 

 

                  96.        40 C.F.R. § 123.27(c) requires that a civil penalty assessed, sought, or agreed upon by the State Director under 40 C.F.R. § 123.27(a)(3) shall be appropriate to the violation.  Ala. Code § 22-22A-5(18)c. requires that the Alabama Department of Environmental Management consider “the standard of care manifested by such person” in determining the amount of any penalty.  The standard of care required by law of all dischargers is one of “strict liability.”  This standard of care requires compliance regardless of the care taken by a discharger to avoid a violation.  The “standard of care manifested by such person” requires that ADEM characterize the care exhibited by the violator, i.e., the extent to which the violator deviated from the strict liability standard of care. 

 

                  97.        In the Petition and subsequent supply to ADEM’s response, Petitioners allege that the State of Alabama failed to seek civil penalties that are appropriate to the violation as required by 40 C.F.R. § 123.27(c) because the State assessed inadequate penalties for violations because the Department routinely fails to consider the standard of care manifested by violators. Petition at 50-52, Petition Reply at 75-77.

 

                  98.        In recent administrative penalty orders developed and issued by ADEM the State of Alabama has assessed inadequate penalties for violations because ADEM routinely fails to appropriately consider the standard of care manifested by violators. For example:

 

Burroughs Construction Company, Inc., Unpermitted Facility File #44613.2

 

ADEM inspected this construction site on September 24, 2010, April 6, 2011, and August 18, 2011.  Each time, ADEM documented that construction activity had commenced and was continuing without NPDES coverage and documented failure to implement and maintain effective best management practices.  On March 6, 2012, ADEM issued an administrative penalty order.  Petition Exhibit N-16 .  ADEM described the standard of care manifested by the violator by stating that the “violations, such as the failure to submit a NOR/NOI, were non-technical requirements and easily avoidable.”  ADEM also noted “the Operator’s failure to respond to the Department’s April 26, 2011 NOV.”  While these facts may inform ADEM’s determination of the standard of care manifested by the violator, they do not characterize the standard of care manifested by the violator (e.g., negligent, reckless, knowing, or intentional).  Without such a characterization, the public cannot know whether the enhanced penalty amount (in this case $5,375.00) is appropriate and comparable to other penalties.

 

 

 

Oakley Excavating, Inc., NPDES ALR168243

 

ADEM inspected this construction site on July 19, 2011, August 25, 2011 and September 27, 2011.  Each time, ADEM documented failure to implement and maintain effective best management practices.  The operator’s NPDES coverage expired on August 14, 2011 and was not renewed until September 26, 2011.  On February 6, 2012, ADEM issued an administrative penalty order.  Order 12-065-CWP. Petition Exhibit N-17.  ADEM described the standard of care manifested by the violator by stating that “the Department noted that the violations continued to be observed at the facility after issuing less formal enforcement.”  While this fact may inform ADEM’s determination of the standard of care manifested by the violator, it does not characterize the standard of care manifested by the violator (e.g., negligent, reckless, knowing, or intentional).  Without such a characterization, the public cannot know whether the enhanced penalty amount (in this case $625) is appropriate and comparable to other penalties.

 

 

 

McWane, Inc., NPDES ALR16EFP3

 

ADEM inspected this construction site on August 12, 2011 and September 16, 2011.  Each time, ADEM documented failure to implement and maintain effective best management practices.  On December 8, 2011, ADEM proposed an administrative penalty order.  Petition Exhibit N-18.  ADEM described the standard of care manifested by the violator by stating that “the Department noted that the violations continued to be observed at the facility after issuing less formal enforcement.”  While this fact may inform ADEM’s determination of the standard of care manifested by the violator, it does not characterize the standard of care manifested by the violator (e.g., negligent, reckless, knowing, or intentional).  Without such a characterization, the public cannot know whether the enhanced penalty amount (in this case $5,500) is appropriate and comparable to other penalties.  No final order has been posted on eFile.

 

 

 

City of Mobile, NPDES ALS000002

 

On November 17, 2011, ADEM issued a proposed order to the City of Mobile.  Petition Exhibit N-19.  The order cited the City for failure to provide a program to enforce controls on new development or significant redevelopment and failure to provide an adequate program of construction site inspections and enforcement of controls. ADEM assessed no incremental increase in the proposed penalty for deviation from the required standard of care explaining that “[t]he Department believes the base penalty is sufficient to address the standard of care manifested by the Permittee.”  The City’s violations were not innocent and the penalty assessed warranted an incremental increase for the City’s deviation from strict liability.  No final order has been posted on eFile.

 

 

 

Four Star Land Ventures, LLC, NPDES ALR16A789

 

ADEM inspected this construction site on July 20, 2011 and September 9, 2011.  On each occasion, ADEM documented that the operator had failed to properly implement and maintain effective best management practices and that discharges had caused offsite accumulations of sediment.  On January 6, 2012, ADEM issued an administrative penalty order.  Order 12-056-CWP, Petition Exhibit N-20.  The only finding with regard to standard of care is that “the Department noted the substantial off-site environmental impacts.”  On the basis of this finding, ADEM “enhanced the penalty by an additional $1,100.00.”  The occurrence of “substantial off-site environmental impacts” says nothing about the standard of care manifested by the violator.  Such impacts could have resulted from innocent actions of the violator or intentional actions of the violator.  Thus, ADEM failed to consider the standard of care manifested by the violator.

 

 

 

New Castle Development, Inc., NPDES ALR16ECWV

 

ADEM inspected this construction site on June 8, 2011 and documented that the operator had not obtained NPDES coverage for the site prior to commencing regulated disturbance activities and that the operator had not properly implemented or maintained effective best management practices.  On October 3, 2011, ADEM issued Consent Order 12-002-CWP. Petition Exhibit N-26.   ADEM described the standard of care manifested by the violator by stating that “the violation of operating without a permit was a non-technical requirement and easily avoided.”  While these facts may inform ADEM’s determination of the standard of care manifested by the violator, they do not characterize the standard of care manifested by the violator (e.g., negligent, reckless, knowing, or intentional).  Without such a characterization, the public cannot know whether the enhanced penalty amount (in this case $1,525.00) is appropriate and comparable to other penalties.

 

 

 

                  99.        The State of Alabama has failed to assess, seek, or agree to civil penalties appropriate to the violation as required by 40 C.F.R. § 123.27(c).

 

                  100       Where the operation of a State program fails to comply with the requirements of 40 C.F.R. Part 123, including the requirements of 40 C.F.R. § 123.27(c), the State must take corrective action or suffer program withdrawal. 40 C.F.R. § 123.63(a)(2)(iii). Accordingly, the EPA should require corrective action by the State of Alabama. Absent corrective action by the State of Alabama to address this and other program failures, EPA should commence proceedings to withdraw approval of the Alabama NPDES program.

 

P. Failure of State to seek adequate enforcement penalties: Consistency with past penalties [40 C.F.R. §§ 123.27(c), 123.63(a)(3)(ii)]

 

 

 

                  101.      40 C.F.R § 123.27(c) requires that a civil penalty assessed, sought, or agreed upon by the State Director under 40 C.F.R. 123.27 (a)(3) shall be appropriate to the violation.

 

- In the Petition and subsequent reply to ADEM’s response, Petitioners allege that the State of Alabama assesses inadequate penalties for violations because it impermissibly considers, and places heavy emphasis on consistency with previous penalty assessments for similar violations. Petition at 52-55, Petition Reply at 77-81.

 

                  102.      As EPA has recognized, ADEM does not have a penalty policy. Petition Reply at 79-80, Petition Exhibit P-2. In lieu of a penalty policy to a given violation, ADEM has elevated “consistency” with past penalties as the single most important factor to be considered in determining a penalty amount. See Testimony of Steven Jenkins, Friends of Hurricane Creek v. Alabama Dep’t of Envtl. Mgmt., EMV Docket No. 09-02 (May 6, 2009). Petition at 53-54.  As demonstrated, consistency with past penalties is not a factor that ADEM is authorized to consider. See Ala. Code § 22-22A-5(18)c, Petition Reply at 79-80.

 

                  103.      Subsequent to the Petition, ADEM has made no revisions to its Memorandum #105: Compliance and Enforcement Strategy (ADEM, Sept. 4,2007) (Petition Exhibit I-1). See Email from Azure Jones, ADEM-Permits &Services, to David Ludder (January 19, 2012). Petition Exhibit I-60.

 

                  104.      The State of Alabama has failed to seek civil penalties that are appropriate to the violation as required by 40 C.F.R. § 123.27(c) because ADEM has unlawfully considered consistency with past penalties to be the most important determinant of the penalty amount.

 

                  105.      Where the operation of the State program fails to comply with the requirements of 40 C.F.R. Part 123, including the requirements of 40 C.F.R. § 123.27(c), the State must take corrective action or suffer program withdrawal. 40 C.F.R. 123.63(a)(2)(iii). Accordingly, the EPA should require corrective action by the State of Alabama. Absent corrective action by the State of Alabama to address this and other program failures, EPA should commence proceedings to withdraw approval of the Alabama NPDES program

 

Q. Failure of State to timely prosecute case [Memorandum of Agreement; 40 C.F.R. §§ 123.21(a)(4), 123.24, 123.63(a)(4)]

 

 

 

                  106.      40 C.F.R § 123.27(c) requires that a civil penalty assessed, sought, or agreed upon by the State Director under 40 C.F.R. 123.27 (a)(3) shall be appropriate to the violation.

 

                  107.      In the Petition and subsequent reply to ADEM’s response, Petitioners allege that the State of Alabama routinely assesses penalties for future violations without consideration of the penalty criteria in Ala. Code § 22-22A-5(18)c. to the circumstances of the future violations. Petition at 55-56, Petition Reply at 81-82.

 

                  108.      As demonstrated, ADEM does not have authority to assess penalties for future violations, Petition at 55, n. 1, Petition Reply at 81, and ADEM cannot determine the penalty amount without consideration of all penalty criteria in Ala Code. § 22-22A-5(18)c. Petition Reply at 81-82. Stipulated penalties should not be included for violations of milestone dates. Violations of orders are subject to penalties and penalty factors just like permit violations.  Why the violator missed a milestone date is important to consider in determining the amount of the penalty.

 

                  109.      Subsequent to the Petition, ADEM has made no revisions to its Compliance and Enforcement Strategy. See Email from Azure Jones, ADEM-Permits &Services, to David Ludder (January 19, 2012). Petition Exhibit I-60.  ADEM has not changed their policy with respect to stipulated penalties for future violations of milestone dates. 

 

                  110.      The State of Alabama has failed to seek civil penalties that are appropriate to the violation as required by 40 C.F.R. § 123.27(c) because ADEM assesses inadequate stipulated penalties for future violations.

 

                  111.      Where the operation of the State program fails to comply with the requirements of 40 C.F.R. Part 123, including the requirements of 40 C.F.R. § 123.27(c), the State must take corrective action or suffer program withdrawal. 40 C.F.R. 123.63(a)(2)(iii). Accordingly, the EPA should require corrective action by the State of Alabama. Absent corrective action by the State of Alabama to address this and other program failures, EPA should commence proceedings to withdraw approval of the Alabama NPDES program.

 

R. Failure of State to timely prosecute cases [Memorandum of Agreement; 40 C.F.R. §§123.21(a)(4), 123.24, 123.63(a)(4)]

 

 

 

                  112.      A State NPDES program shall include a Memorandum of Agreement with the Regional Administrator of the U.S. Environmental Protection Agency as required by 40 C.F.R. § 123.24. 40 C.F.R. § 123.21(a)(4).

 

                  113.      “The State shall make every effort to pursue and complete all the enforcement action it takes within a reasonable amount of time.” National Pollutant Discharge Elimination System Memorandum of Agreement Between the State of Alabama and the United States Environmental Protection Agency, Region IV (April 11, 2008) (ADEM Exhibit A-1).

 

                  114.      In the Petition and Subsequent Reply to ADEM’s Response, Petitioners allege that the State of Alabama failed to timely prosecute cases of NPDES violations as required by National Pollutant Discharge Elimination System Memorandum of Agreement Between the State of Alabama and the United States Environmental Protection Agency, Region IV (April 11, 2008). Petition at 56-60, Petition Reply at 82-84.

 

                  115.      Petitioners are unaware of any corrective action by the State of Alabama to address this program failure.

 

                  116.      Where the operation of the State program fails to comply with the requirements of 40 C.F.R. Part 123, including the Memorandum of Agreement, the State must take corrective action or suffer program withdrawal.  40 C.F.R. § 123.63(a)(2)(iii). Accordingly, the EPA should require corrective action by the State of Alabama. Absent corrective action by the State of Alabama to address this and other program failures, EPA should commence proceedings to withdraw approval of the Alabama NPDES program

 

S. Failure of State to take prompt action where dischargers violate consent decrees [Memorandum of Agreement; 40 C.F.R. §§123.21(a)(4), 123.24, 123.63(a)(4)]

 

 

 

                  117.      A State NPDES program shall include a Memorandum of Agreement with the Regional Administrator of the U.S. Environmental Protection Agency as required by 40 C.F.R. § 123.24. 40 C.F.R. § 123.21(a)(4).

 

                  118.      “The State is responsible for commencing and completing timely and appropriate enforcement action against dischargers in violation of… judicial enforcement actions.” National Pollutant Discharge Elimination System Memorandum of Agreement Between the State of Alabama and the United States Environmental Protection Agency, Region IV (April 11, 2008) (ADEM Exhibit A-1).

 

                  119.      In the Petition and Subsequent Reply to ADEM’s Response, Petitioners allege that the State of Alabama failed to take prompt action where dischargers violate consent decrees as required by National Pollutant Discharge Elimination System Memorandum of Agreement Between the State of Alabama and the United States Environmental Protection Agency, Region IV (April 11, 2008). Petition at 60-62, Petition Reply at 84-87.

 

                  120.      Petitioners are unaware of any corrective action by the State of Alabama to address this program failure.

 

                  121.      Where the operation of the State program fails to comply with the requirements of 40 C.F.R. Part 123, including the Memorandum of Agreement, the State must take corrective action or suffer program withdrawal.  40 C.F.R. § 123.63(a)(2)(iii). Accordingly, the EPA should require corrective action by the State of Alabama. Absent corrective action by the State of Alabama to address this and other program failures, EPA should commence proceedings to withdraw approval of the Alabama NPDES program

 

T. Failure of State to provide adequate personnel qualifications [33 U.S.C. § 1314(i)(2)(D); 40 C.F.R. §§ 123.25(c), 123.63(a)]

 

 

 

                  122.      The Clean Water Act § 304(i)(2)(D), 33 U.S.C. § 1314(i)(2)(D), provides that “no board or body which approves permit applications or portions thereof shall include, as a member, any person who receives, or has during the previous two years received, a significant portion of his income directly or indirectly from permit holders or applicants for a permit.” (Parentheses omitted; emphasis added).

 

                  123.      40 C.F.R. § 123.25(c) provides:

 

State NPDES programs shall ensure that any board or body which approves all or portions of permits shall not include as a member any person who receives, or had during the previous 2 years received, a significant portion of income directly or indirectly from permit holders or applicants for a permit.

 

 

 

                  124.      “All State programs must have conflict of interest protections which are at least as stringent as those of the [Clean Water Act].” National Pollutant Discharge Elimination System State Program Guidance, Vol. I at 3-23 (U.S. EPA 1986). Petition. Exhibit T-1.

 

                  125.      The State of Alabama must certify to the United States Environmental Protection Agency that the Director of the Alabama Department of Environmental Management (and any delegates) and the members of the Environmental Management Commission are in compliance with the conflict of interest provision of 40 C.F.R. § 123.25(c). See General Counsel Opinion (U.S. EPA, Feb. 14, 1973). Petition Exhibit T-2.

 

                  126.      As provided in the Petition, the plain and unambiguous language of the Clean Water Act § 3004(i)(2)(D), 33 U.S.C. § 1314(1)(2)(D), and 40 C.F.R. § 123.25(c) require that the Director, the Chief of the Water Division, and members of the Environmental Management Commission comply with the conflict of interest provisions or not serve.

 

                  127.      In the Petition, Petition Supplement dated February 18, 2010, and subsequent Reply to ADEM’s Response, Petitioner allege that the State of Alabama failed to comply with the conflict of interest provisions of the 33 U.S.C. § 1314(i)(2)(D) and 40 C.F.R. § 123.25(c) by failing to provide a procedure to ensure that persons who do not comply with the aforementioned conflict of interest provisions do not remain as members of the Environmental Management Commission or ADEM administrators. Petition at 62-66, February 18 Supplement, Petition Reply at 87-90.

 

                  128.      Petitioners are unaware of any corrective action by the State of Alabama to address this program failure. Rather, the State program allowed for Anita Archie, Senior Vice President of Governmental Affairs and Legal Advisor for the Business Council of Alabama, to serve as a commissioner on the Environmental Management Commission. February 18 Supplement, Petition Reply at 87-88.

 

                  129.      The State of Alabama has failed to comply with the conflict of interest provisions of 33 U.S.C. § 1314(i)(2)(D) and 40 C.F.R. § 123.25(c).

 

                  130.      Where the operation of the State program fails to comply with the requirements of 40 C.F.R. Part 123, including the conflict of interest requirements of 40 C.F.R. § 123.25(c), the State must take corrective action or suffer program withdrawal.  40 C.F.R. § 123.63(a)(2)(iii).  Accordingly, the EPA should require corrective action by the State of Alabama. Absent corrective action by the State of Alabama to address this and other program failures, EPA should commence proceedings to withdraw approval of the Alabama NPDES program.

 

U. The State’s legal authority no longer meets the requirements of 40 C.F.R. Part 123: Penalties against state entities [40 C.F.R. §§ 123.27(a)(3) and 123.63(a)(1)]

 

 

 

                  131.      State programs under 40 C.F.R. Part 123 must have the authority to assess or sue to recover in court civil penalties. Civil penalties shall be recoverable for the violation of any NPDES permit condition; any NPDES filing requirement; any duty to allow or carry out inspection, entry, or monitoring activities; or any regulation or orders issued by the State Director.  These penalties shall be assessable in at least the amount of $5,000 a day for each violation. 40 C.F.R. § 123.27(a)(3).

 

                  132.      In the Petition and subsequent Reply to ADEM’s Response, Petitioners allege that the State of Alabama’s legal authority does not meet the requirements of 40 C.F.R. § 123.27(a)(3). Petition at 66-67, Petition Reply at 90-92.

 

                  133.      Petitioners are unaware of any corrective action by the State of Alabama to address this program failure.

 

                  134.      Where the operation of the State program fails to comply with the requirements of 40 C.F.R. Part 123, including the penalty authority requirements of 40 C.F.R. § 123.27(a)(3), the State must take corrective action or suffer program withdrawal. 40 C.F.R. § 123.63(a)(2)(iii).  Accordingly, EPA should require corrective action by the State of Alabama. Absent corrective action by the State of Alabama to address this and other program failures, EPA should commence proceedings to withdraw approval of the Alabama NPDES program.

 

V. The State’s legal authority does not meet the requirements of 40 C.F.R. Part 123: Large and medium separate storm sewer enforcement authority [40 C.F.R. §§ 123.25(a)(9) and 123.63(a)]

 

 

 

                  135.      State programs under 40 C.F.R. Part 123 must have legal authority to implement 40 C.F.R § 122.26 (storm water discharges). 40 C.F.R. § 123.25(a)(9).

 

                  136.      Permits must be obtained for all discharges from large and medium municipal separate storm sewer systems (MS4 Phase I). 40 C.F.R. § 122.26(a)(3).  To qualify for a permit, an MS4 Phase I must demonstrate that it can operate pursuant to legal authority established by statute, ordinance or series of contract which authorizes or enables it at a minimum to:

 

(A) Control through ordinance, permit, contract, order, or similar means, the contribution of pollutants to the municipal storm sewer by storm water discharges associated with industrial activity and the quality of storm water discharged from sites of industrial activity;

 

(B) Prohibit through ordinance, order or similar means, illicit discharges to the municipal separate storm sewer;

 

(C) Control through ordinances, order or similar means the discharge to a municipal separate storm sewer of spills, dumping or disposal of materials other than storm water.

 

(D) Control through interagency agreements among coapplicants the contribution of pollutants from one portion of the municipal system to another portion of the municipal system;

 

(E) Require compliance with conditions in ordinances, permits, contracts or orders; and

 

(F) Carry out all inspection, surveillance and monitoring procedures necessary to determine compliance and noncompliance with permit conditions including the prohibition on illicit discharges to the municipal separate storm sewer.

 

 

 

                  137.      In the Petition and subsequent Reply to ADEM’s Response, Petitioners allege that the State’s legal authority does not meet the requirements of 40 C.F.R. § 123.25(a)(9) because Ala. Code §§ 11-89C-11 and 11-89C-12 limit the authority of governing bodies of MS4 Phase I’s to require compliance with conditions in ordinances, permits, contracts or orders. Petition at 68-69, Petition Reply at 92-93.

 

                  138.      On April 15, 2011, EPA Region 4 sent a letter to Lance Lefleur, Director, ADEM requesting that ADEM provide an opinion, based on consultation with ADEM’s Office of General Counsel, interpreting the above provision of Alabama law, clarify how certify that the MS4s possess the necessary authority to comply with the requirements of 40 C.F.R. § 122.26(a)(3). Petition Exhibit V-2. Petitioners are unaware of any response to this request or any interpretation by the State of Alabama which would counter the plan meaning of these statutes as described in the Petition.

 

                  139.      Petitioners are unaware of any corrective action by the State of Alabama to address this program failure.

 

                  140.      Where the operation of the State program fails to comply with the requirements of 40 C.F.R. Part 123, including the authority requirements of 40 C.F.R. § 123.25(a)(9), the State must take corrective action or suffer program withdrawal. 40 C.F.R. § 123.63(a)(2)(iii). Accordingly, the EPA should require corrective action by the State of Alabama.  Absent corrective action by the State of Alabama to address this and other program failures, EPA should commence proceedings to withdraw approval of the Alabama NPDES program.

 

W. The State’s legal authority does not meet the requirements of 40 C.F.R. Part 123: TMDL implementation [40 C.F.R. §§ 123.25(a)(1) and 123.63(a)]

 

 

 

                  141.      All State programs under 40 C.F.R. Part 123 must have legal authority to implement 40 C.F.R § 122.4(i) and must be administered in conformance with  40 C.F.R. § 122.4(i), except that States are not precluded from omitting or modifying any provisions to impose more stringent requirements. 40 C.F.R. § 123.25(a)(1).

 

                  142.      In the Petition and subsequent Reply to ADEM’s Response, Petitioners allege that the State of Alabama’s NPDES program does not have adequate legal authority to implement 40 C.F.R. § 122. 4(i). Petition at 69-72, Petition Response at 93-96.

 

                  143.      Petitioners are unaware of any corrective action by the State of Alabama to address this program failure.

 

                  144.      Where the operation of the State program fails to comply with the requirements of 40 C.F.R. Part 123, including the authority requirements of 40 C.F.R § 123.25(a)(1), the State must take corrective or suffer program withdrawal. 40 C.F.R. §123.63(a).  Accordingly, the EPA should require corrective action by the State of Alabama. Absent corrective action by the State of Alabama to address this and other program failures, EPA should commence proceedings to withdraw approval of the Alabama NPDES program.

 

X. Failure of State to provide adequate manpower [40 C.F.R. § 123.63(a); 33 U.S.C. § 1314(i)(2)(D)]

 

 

 

                  145.      States are required by 33 U.S.C. § 1314(i)(2)(D) to provide adequate manpower in order to effectively carry out the minimum requirements for NPDES programs set forth under 33 U.S.C. § 1342(b).

 

                  146.      EPA’s guidance to State NPDES programs, published pursuant to 33 U.S.C. § 1314(i)(2)(D) provides that “EPA must require that proper funding and staffing be provided by the State as a condition of continued program approval. Petition Exhibit Z-1 at 6-2.

 

                  147.      A State NPDES program shall include a Memorandum of Agreement with the Regional Administrator of the U.S. Environmental Protection Agency as required by 40 C.F.R § 123.24. 40 C.F.R. § 123.21(a)(4).

 

                  148.      Under National Pollutant Discharge Elimination System Memorandum of Agreement Between the State of Alabama and the United States Environmental Protection Agency, Region IV, (April 11, 2008) Section III. A.1.,  the State of Alabama is required to “create and maintain … the resources required to the maximum extent possible to carry out all aspects of the State NPDES program.” ADEM Exhibit A-1 at 4.

 

                  149.      In the Petition and subsequent Reply to ADEM’s Response, Petitioners allege that the State of Alabama has failed to create and maintain to the maximum extent possible, the resources required to carry out all aspects of the State NPDES program as required by National Pollutant Discharge Elimination System Memorandum of Agreement Between the State of Alabama and the United States Environmental Protection Agency, Region IV, Section III. A.1. (April 11, 2008). Petition at 72-74, Petition Response at 97-98.

 

                  150.      Subsequent to the Petition, the State of Alabama has significantly undercut the Department’s funding from $10,176,960 in FY 2009 to $4,212,537 – a 60% reduction.  Petition Exhibit X-3.  Proposed budgets for FY2013 carry these cuts even further with the Governor proposing to reduce ADEM’s budget to $3,406,164 and the Alabama State Legislature proposing to reduce the budget another 30% to $2,963.363.  Id.  This would result in a 71% reduction from FY2009.

 

                  151.      Despite ADEM’s commendable efforts to absorb these cuts through staff realignments and technological innovations, the Department has been unable to add manpower and is therefore simply unable to fulfill its responsibility under 33. U.S.C. §1314(i)(2)(D) and National Pollutant Discharge Elimination System Memorandum of Agreement Between the State of Alabama and the United States Environmental Protection Agency, Region IV, Section III. A.1. (April 11, 2008).

 

                  152.      The State of Alabama has failed to create and maintain to the maximum extent possible, the resources required to carry out all aspects of the State NPDES program as required by 33.U.S.C. § 1314(i)(2)(D) and National Pollutant Discharge Elimination System Memorandum of Agreement Between the State of Alabama and the United States Environmental Protection Agency, Region IV, Section III. A.1. (April 11, 2008).

 

                  153.      Where the State program fails to provide adequate manpower as required to meet minimum requirements under 33 U.S.C. § 1314(i)(2)(D) or comply with the terms of the Memorandum of Agreement required under 40 C.F.R. § 123.24, the State must take corrective action or suffer program withdrawal. 40 C.F.R. § 123.63(a)(4). Accordingly, the EPA should require corrective action by the State of Alabama.  Absent Corrective action by the State of Alabama to address this and other program failures, EPA should commence proceedings to withdraw approval of the Alabama NPDES program.

 

Y. States are required to provide adequate funding necessary to effectively carry out the minimum requirements set forth under 33 U.S.C § 1342(b)

 

 

 

                  154.      EPA’s guidance to State NPDES programs, published pursuant to 33 U.S.C. § 1314(i)(2)(D) provides that “EPA must require that proper funding and staffing be provided by the State as a condition of continued program approval. Petition Exhibit Z-1 at 6-2.

 

                  155.      Under National Pollutant Discharge Elimination System Memorandum of Agreement Between the State of Alabama and the United States Environmental Protection Agency, Region IV, Section III. A.1. (April 11, 2008), the State of Alabama is required to “create and maintain … the resources required to the maximum extent possible to carry out all aspects of the State NPDES program.” ADEM Exhibit A-1 at 4.

 

                  156.      In the Petition and subsequent Reply to ADEM’s Response, Petitioners allege that the State of Alabama has failed to create and maintain to the maximum extent possible, the resources required to carry out all aspects of the State NPDES program as required by National Pollutant Discharge Elimination System Memorandum of Agreement Between the State of Alabama and the United States Environmental Protection Agency, Region IV, Section III. A.1. (April 11, 2008). Petition at 74-75, Petition Response at 98-100.

 

                  157.      Subsequent to the Petition, the State of Alabama has significantly undercut the Department’s funding from $10,176,960 in FY 2009 to $4,212,537 – a 60% reduction.  Petition Exhibit X-3.  Proposed budgets for FY2013 carry these cuts even further with the Governor proposing to reduce ADEM’s budget to $3,406,164 and the Alabama State Legislature proposing to reduce the budget another 30% to $2,963.363.  Id.  This would result a 71% reduction from FY2009.

 

                  158.      The State of Alabama has failed to maintain the funding necessary to adequately carry out all aspects of the State NPDES program. Accordingly, the State of Alabama has failed to create and maintain to the maximum extent possible, the resources required to carry out all aspects of the State NPDES program as required by 33.U.S.C. § 1314(i)(2)(D) and National Pollutant Discharge Elimination System Memorandum of Agreement Between the State of Alabama and the United States Environmental Protection Agency, Region IV, Section III. A.1. (April 11, 2008).

 

                  159.      Where the State program fails to maintain the funding necessary to meet minimum requirements under 33 U.S.C. § 1314(i)(2)(D) or comply with the terms of the Memorandum of Agreement required under 40 C.F.R. § 123.24, the State must take corrective action or suffer program withdrawal. 40 C.F.R. § 123.63(a)(4). Accordingly, the EPA should require corrective action by the State of Alabama.  Absent Corrective action by the State of Alabama to address this and other program failures, EPA should commence proceedings to withdraw approval of the Alabama NPDES program.

 

Z. Failure of State to Maintain to the maximum extent possible resources required to carry out all aspects of the NPDES program [Memorandum of Agreement; 40 C.F.R. § 123.63(a)(4); 33 U.S.C. § 1314(i)(2)(D)]

 

 

 

                  160       EPA’s guidance to State NPDES programs, published pursuant to 33 U.S.C. § 1314(i)(2)(D) provides that “EPA must require that proper funding and staffing be provided by the State as a condition of continued program approval. Petition Exhibit Z-1 at 6-2.

 

                  161.      A State NPDES program shall include a Memorandum of Agreement with the Regional Administrator of the U.S. Environmental Protection Agency as required by 40 C.F.R § 123.24. 40 C.F.R. § 123.21(a)(4).

 

                  162.      Under National Pollutant Discharge Elimination System Memorandum of Agreement Between the State of Alabama and the United States Environmental Protection Agency, Region IV, Section III. A.1. (April 11, 2008), the State of Alabama is required to “create and maintain … the resources required to the maximum extent possible to carry out all aspects of the State NPDES program.” ADEM Exhibit A-1 at 4.

 

                  163.      In the Petition and subsequent Reply to ADEM’s Response, Petitioners allege that the State of Alabama has failed to create and maintain to the maximum extent possible, the resources required to carry out all aspects of the State NPDES program as required by National Pollutant Discharge Elimination System Memorandum of Agreement Between the State of Alabama and the United States Environmental Protection Agency, Region IV, Section III. A.1. (April 11, 2008). Petition at 74-75, Petition Response at 98-100.

 

                  164.      Subsequent to the Petition, the State of Alabama has significantly undercut the Department’s funding from $10,176,960 in FY 2009 to $4,212,537 – a 60% reduction.  Petition Exhibit X-3.  Proposed budgets for FY2013 carry these cuts even further with the Governor proposing to reduce ADEM’s budget to $3,406,164 and the Alabama State Legislature proposing to reduce the budget another 30% to $2,963.363.  Id.  This would result a 71% reduction from FY2009.

 

                  165       The State of Alabama has failed to create and maintain to the maximum extent possible, the resources required to carry out all aspects of the State NPDES program as required by 33.U.S.C. § 1314(i)(2)(D) and National Pollutant Discharge Elimination System Memorandum of Agreement Between the State of Alabama and the United States Environmental Protection Agency, Region IV, Section III. A.1. (April 11, 2008).

 

                  166.      Where the State program fails comply with the terms of the Memorandum of Agreement required under 40 C.F.R. § 123.24, the State must take corrective action or suffer program withdrawal. 40 C.F.R. § 123.63(a)(4). Accordingly, the EPA should require corrective action by the State of Alabama.  Absent corrective action by the State of Alabama to address this and other program failures, EPA should commence proceedings to withdraw approval of the Alabama NPDES program.


IV. REQUEST FOR RELEIF

 

 

 

      Wherefore, Petitioners maintain their request that the Administrator require corrective action by the State of Alabama under 40 C.F.R. § 123.63(a)(4).  Absent corrective action by the State of Alabama to address the program failures identified in this Petition, Petitioners request that the Administrator of the United State Protection Agency order the commencement of proceedings to withdraw approval of the National Pollutant Discharge Elimination System (NPDES) permit program for the State of Alabama in accordance with 40 C.F.R. § 123.64(b).

 

 

 

 

 

                                                                                    Respectfully submitted,

 

 

 

 

 

                                                                                    _______________________________________

 

                                                                                    David A. Ludder

 

                                                                                    LAW OFFICE OF DAVID A. LUDDER, PLLC

 

                                                                                    9150 McDougal Court

 

                                                                                    Tallahassee, Florida 32312-4208

 

                                                                                    Phone: (850) 386-5671

 

                                                                                    Fax: (267) 873-5848

 

                                                                                    Email: DavidALudder@enviro-lawyer.com

 

 

 

 

 

                                                                                    ______________________________________

 

                                                                                    Mitch Reid

 

                                                                                    ALABAMA RIVERS ALLIANCE

 

                                                                                    2027 2nd Ave. North, Suite A.

 

                                                                                    Birmingham, Alabama 35203

 

                                                                                    Phone: (205) 322-6395

 

                                                                                    Fax: (205) 322-6397

 

                                                                                    Email: mreid@alabamarivers.org

 

                 

 

                                                                                    Attorneys for Petitioners

 



[1] This list is only a partial list compiled from EPA and ADEM databases: EPA’s Enforcement and Compliance History Online (ECHO), and ADEM’s FileNet. These databases may not be 100% complete or accurate. Any errors in this list are the result of incomplete or inaccurate data in these databases.

[2] This list is only a partial list compiled from EPA and ADEM databases: EPA’s Enforcement and Compliance History Online (ECHO), and ADEM’s FileNet. These databases may not be 100% complete or accurate. Any errors in this list are the result of incomplete or inaccurate data in these databases.


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