Summary of a Recent
Judicial
Development in
Environmental Law
Issuance of NPDES Permits by States Must Comply with the Statutory
Requirements of the Clean Water Act
Eric H. FoyNational AgLaw Center Research Associate
Summary of Decision
In Alabama Department of Environmental Management v. Alabama Rivers Alliance, Inc., 14 So.3d 853 (Ala. Civ. App. 2007), the Alabama Court of Appeals affirmed the decision of the Circuit Court, Montgomery County, which had reversed the Alabama Environmental Management Commission's (Commission) issuance of a National Pollutant Discharge Elimination System (NPDES) Permit for coal mining operations. The court of appeals held that the Commission's decision to issue the permit was clearly erroneous and could not be affirmed on the basis of harmless error. Rather than remand the decision for clarification, the instant court held that reversal was appropriate.
Background
On December 17, 2001, the Commission issued an NPDES permit to Tuscaloosa Resources, Inc. (TRI) to conduct mining operations in Tuscaloosa County. Id. at *1. In January 2002, two environmental groups petitioned for an administrative hearing to contest the permit's issuance, alleging that discharges from TRI's mining operations would contribute to an existing violation of water quality standards in the North Fork, and was therefore prohibited by law. Id. After a hearing was conducted and the evidence was reviewed, the administrative law judge (ALJ) assigned to serve as the hearing officer recommended that the permit's issuance should be overturned. Id. However, in rejecting the ALJ's recommendation and reaffirming the permit's issuance, the Commission stated, "[t]here [was] no evidence that [the] permit [was] not consistent with applicable Environmental Protection Agency requirements, and not in accordance with State law and applicable State rules and regulations." Id. The environmental groups appealed to Montgomery Circuit Court, which reversed the Commission's decision. Id. at *2. Thereafter, TRI filed a motion to alter or amend the circuit court's judgment, asking that the court remand the case to the Commission to make additional findings and to stay enforcement. Id. at *3. After 90 days elapsed without a response, TRI's motion was denied by operation of law. Id. TRI appealed to the instant court.
Arguments
TRI argued that the issuance of the NPDES permit was consistent with the Environmental Protection Agency's (EPA) published Total Maximum Daily Load (TMDL) of pollutants for the North Fork. Id. Furthermore, TRI claimed that the circuit court erred in determining that the Commission's finding of a lack of evidence that the biota of the North Fork were impaired by iron, aluminum, or turbidity constituted clear error. Id. at *10.
Analysis and Holdings
The court limited the case to the question of whether, at the time the NPDES permit was issued, the North Fork was in violation of water quality standards, and, if so, whether the discharges from TRI's mining operation would cause or contribute to a violation of water quality standards. Id. at *4.
In holding that the North Fork was in violation of water quality standards when the permit was issued, the instant court found that TRI never offered any evidence suggesting that the North Fork was not impaired, and held that the inclusion of the North Fork on the state's Clean Water Act § 303(d) list of impaired waters was prima facie evidence of the North Fork's impairment due to aluminum, and the undisputed chemical and biological evidence supported a finding of impairment in the North Fork. Id. at *10.
The court then examined whether TRI's mining operations would contribute to the North Fork's violation of water quality standards. Id. at *11-12. After examining the evidence, the court held that the case indicated that the North Fork was impaired and that TRI's mining would contribute to the impairment. Id. at *12. Because the evidence was so overwhelming, the court concluded that the circuit court did not err in failing to remand the case to the Commission. Id. at *14.
The case was decided on December 28, 2007.