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Posted on December 16, 2009
Riverkeeper keeps coal clean
The litigation of ADEM’s permit process
A riverkeeper has a single purpose: to preserve and protect our waterways and watersheds. Often a riverkeeper, like Nelson Brooke of Black Warrior Riverkeeper (BWR), does this by investigating and reporting pollution. The notion of a Lone Ranger-type in a boat — roving the river with a jar full of samples and a camera, on a mission to protect the environment — is sort of romantic. Like a real-life Captain Planet with a boating license.
But Captain Planet had it easy. He was a superhero, an ever-ready deus ex machina. Other than his need to have the Planeteers combine their powers, he never had to deal with a bureaucracy.
Riverkeepers, on the other hand, get to deal with the Alabama Department of Environmental Management (ADEM). But when ADEM fails to follow its own regulations, riverkeepers must use another tool, one far removed from the great outdoors: the legal system.
BWR has been active in the legal arena as of late. The organization has an ally in the Southern Environmental Law Center (SELC), a group of attorneys that works to protect the South’s environmental treasures. Together, SELC and BWR have filed actions regarding two permits ADEM has issued, contending that ADEM did not receive a critical pollution abatement and prevention plan, or PAP, from either the 3,255-acre Rosa mine in Blount County or the 1,773-acre Shepherd Bend mine in Walker County. ADEM says it has an agreement with the Alabama Surface Mining Commission (ASMC), which also must approve coal mines, to review pollution plans, but BWR and SELC contend ASMC does not have authority over water pollution—ADEM does.
In the case of the massive Rosa mine, which would discharge pollutants at more than 60 points along the Locust Fork of the Black Warrior River, the permit ADEM issues exempts the mine from discharge limits during rains, a time when water contamination and sedimentation are potentially at their highest. In addition, the mine would discharge pollutants into a stretch of the Locust Fork on Alabama’s list of already impaired waterways, known as the 303(d) list. BWR and SELC argue issuing a permit for a new source of pollution on a 303(d) section is not allowed.
“That portion of the Locust Fork is on the 303(d) list for sedimentation,” Brooke says. “And so we’ve contended in that appeal that it is illegal for ADEM to issue a permit that would cause or contribute to water quality violations in an already impaired stream.”
The Shepherd Bend mine, located on the Mulberry Fork of the Black Warrior River, would discharge potentially dangerous pollutants 800 feet from a major intake for Birmingham Water Works. BWR also says ADEM failed to follow its own public comment process because the agency issued the permit without notifying BWR or responding to the organization’s comments on the draft permit.
The ability to seek relief from the courts has been a tool of riverkeepers since the first such organization was founded to protect the Hudson River fishery. In 1966, Robert Boyle, an ex-marine and fly-fisherman who founded the Hudson River Fishermen’s Association (which later became Riverkeeper) discovered a 19th century federal statute, the Rivers and Harbors Act, which made it a finable offense to pollute America’s waterways and granted the person reporting the pollution a bounty equal to half of the fine levied against the polluter. The fishermen soon received their first bounty and used that money to sue other polluters.
In November, BWR petitioned for a hearing on the Rosa mine permit. An administrative law judge would hear that case and then make a recommendation to the Environmental Management Commission (EMC), which oversees ADEM. The two organizations went through a similar process with the Shepherd Bend mine earlier this year. The judge found that ADEM’s shuffling of the PAP review to ASMC was industry practice, and EMC agreed. BWR has appealed that ruling to a Montgomery County Circuit Court.
“The other counts of our complaint regarding water quality concerns were not addressed by the administrative law judge adequately, and so the EMC sent that part of our appeal back to the administrative law judge for a re-hearing,” Brooke says. “So we’ll see where that goes.”
Things might be looking up. ADEM’s director, Trey Glenn, resigned last week. Glenn’s tenure was plagued by claims from environmental watchdog groups that ADEM was barely enforcing pollution regulations despite having 600 employees and a $70 million budget at his command. Those complaints did much to raise awareness about environmental protection issues in Alabama.
On Wednesday, The Birmingham News editorial board chimed in on Glenn’s resignation: “The next director of ADEM needs to be someone who treats polluting businesses fairly but takes environmental laws seriously,” the article said. “And the next director needs to understand his most important job of all is to be a careful steward of the public’s trust.”
Let’s hope someone is listening.
Madison Underwood is a contributing writer for Birmingham Weekly. Send your feedback to madison@bhamweekly.com.
But Captain Planet had it easy. He was a superhero, an ever-ready deus ex machina. Other than his need to have the Planeteers combine their powers, he never had to deal with a bureaucracy.
Riverkeepers, on the other hand, get to deal with the Alabama Department of Environmental Management (ADEM). But when ADEM fails to follow its own regulations, riverkeepers must use another tool, one far removed from the great outdoors: the legal system.
BWR has been active in the legal arena as of late. The organization has an ally in the Southern Environmental Law Center (SELC), a group of attorneys that works to protect the South’s environmental treasures. Together, SELC and BWR have filed actions regarding two permits ADEM has issued, contending that ADEM did not receive a critical pollution abatement and prevention plan, or PAP, from either the 3,255-acre Rosa mine in Blount County or the 1,773-acre Shepherd Bend mine in Walker County. ADEM says it has an agreement with the Alabama Surface Mining Commission (ASMC), which also must approve coal mines, to review pollution plans, but BWR and SELC contend ASMC does not have authority over water pollution—ADEM does.
In the case of the massive Rosa mine, which would discharge pollutants at more than 60 points along the Locust Fork of the Black Warrior River, the permit ADEM issues exempts the mine from discharge limits during rains, a time when water contamination and sedimentation are potentially at their highest. In addition, the mine would discharge pollutants into a stretch of the Locust Fork on Alabama’s list of already impaired waterways, known as the 303(d) list. BWR and SELC argue issuing a permit for a new source of pollution on a 303(d) section is not allowed.
“That portion of the Locust Fork is on the 303(d) list for sedimentation,” Brooke says. “And so we’ve contended in that appeal that it is illegal for ADEM to issue a permit that would cause or contribute to water quality violations in an already impaired stream.”
The Shepherd Bend mine, located on the Mulberry Fork of the Black Warrior River, would discharge potentially dangerous pollutants 800 feet from a major intake for Birmingham Water Works. BWR also says ADEM failed to follow its own public comment process because the agency issued the permit without notifying BWR or responding to the organization’s comments on the draft permit.
The ability to seek relief from the courts has been a tool of riverkeepers since the first such organization was founded to protect the Hudson River fishery. In 1966, Robert Boyle, an ex-marine and fly-fisherman who founded the Hudson River Fishermen’s Association (which later became Riverkeeper) discovered a 19th century federal statute, the Rivers and Harbors Act, which made it a finable offense to pollute America’s waterways and granted the person reporting the pollution a bounty equal to half of the fine levied against the polluter. The fishermen soon received their first bounty and used that money to sue other polluters.
In November, BWR petitioned for a hearing on the Rosa mine permit. An administrative law judge would hear that case and then make a recommendation to the Environmental Management Commission (EMC), which oversees ADEM. The two organizations went through a similar process with the Shepherd Bend mine earlier this year. The judge found that ADEM’s shuffling of the PAP review to ASMC was industry practice, and EMC agreed. BWR has appealed that ruling to a Montgomery County Circuit Court.
“The other counts of our complaint regarding water quality concerns were not addressed by the administrative law judge adequately, and so the EMC sent that part of our appeal back to the administrative law judge for a re-hearing,” Brooke says. “So we’ll see where that goes.”
Things might be looking up. ADEM’s director, Trey Glenn, resigned last week. Glenn’s tenure was plagued by claims from environmental watchdog groups that ADEM was barely enforcing pollution regulations despite having 600 employees and a $70 million budget at his command. Those complaints did much to raise awareness about environmental protection issues in Alabama.
On Wednesday, The Birmingham News editorial board chimed in on Glenn’s resignation: “The next director of ADEM needs to be someone who treats polluting businesses fairly but takes environmental laws seriously,” the article said. “And the next director needs to understand his most important job of all is to be a careful steward of the public’s trust.”
Let’s hope someone is listening.
Madison Underwood is a contributing writer for Birmingham Weekly. Send your feedback to madison@bhamweekly.com.
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tcousins
why is it that the enviro left only picks on the miners. what about the jefferson county commision that last year let san-tec expand the mt.olive land fields area and now san-tec is building a new 160 acer waste site at the mt.olive land field and not one of you riverkeepers is whinning about that. i would guess it is because you or the splc will not get a large settlement from it. does any one but me smell a rat?what will you do when you finaly rum all the good jobs out of alabama?better think about it.
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froggergal
Well done, Madison!
REPLY TO THIS COMMENT
mikedale
At a cost of $70 million to the state, an organization clearly not doing its job (ADEM) should be investigated for wasting taxpayer money. I fail to see the difference between the officials of ADEM and Representative Sue Schmitz. She was hauled off to jail one morning at 6:30 AM and later convicted because she was accused of not putting enough into her state job.
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al credit repair
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