Black Warrior Riverkeeper, Inc. v. Ala. Dep't of Envtl. Mgmt.

• Decision Date: 18 February 2022
• Docket Number: 2200609
• Parties: Black Warrior Riverkeeper, Inc. v. Alabama Department of Environmental Management, Alabama Environmental Management Commission, and Metalplate Galvanizing, L.P.
• Court: Alabama Court of Civil Appeals

Black Warrior Riverkeeper, Inc. v. Alabama Department of Environmental Management, Alabama Environmental Management Commission, and Metalplate Galvanizing, L.P.

No. 2200609

Alabama Court of Civil Appeals

February 18, 2022

Appeal from Montgomery Circuit Court (CV-20-900845)

FRIDY JUDGE

In this appeal, we review a challenge by Black Warrior Riverkeeper Inc. ("Riverkeeper"), to the issuance by the Alabama Department of Environmental Management ("ADEM") of two individual permits to Metalplate Galvanizing, L.P. ("Metalplate"), pursuant to the National Pollutant Discharge Elimination System ("NPDES"). For the reasons set forth herein, we conclude that the issuance of the permits complied with applicable law, and we affirm the judgment of the Montgomery Circuit Court ("the circuit court") sustaining ADEM's issuance of the permits.

I. Background

A. Relevant Legal Framework

Congress enacted the federal Clean Water Act ("the CWA"), 33 U.S.C. § 1251 et seq., in 1972, intending "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). To further that objective, the CWA prohibits the "discharge of a pollutant" from a "point source" to "navigable waters" unless, in most cases, the entity discharging the pollutant obtains a permit issued under the NPDES.^[1] See 33 U.S.C §§ 1311(a) and 1342. The CWA is enforced by state and federal authorities working together.

Under the CWA, a state may apply for a transfer of NPDES permitting authority from federal to state officials. See 33 U.S.C. § 1342. Once that authority is transferred, state officials rather than the federal Environmental Protection Agency ("the EPA") maintain the primary responsibility for reviewing and approving NPDES discharge permits, although the EPA continues to exercise oversight. See National Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 650 (2007). Nonetheless, the state must advise the EPA of each permit it proposes to issue, and the EPA may object to any permit. 33 U.S.C. § 1342(d)(1) and (2).

States with authorized NPDES permitting programs may issue either general permits or individual permits to address point sources within their boundaries. An individual permit is issued to a specific operation and tailored to its pollution issues. A general permit is written to cover a category of point sources with similar characteristics for a defined area. Save the Valley, Inc. v. United States EPA, 223 F.Supp.2d 997, 1007 (S.D. Ind. 2002).

Alabama has obtained NPDES permitting authority from the federal government. See Ex parte Fowl River Protective Ass'n, 572 So.2d 446, 450 (Ala. 1990). Alabama law, specifically the Alabama Water Pollution Control Act ("the AWPCA"), § 22-22-1 et seq., Ala. Code 1975, confers on ADEM, a state agency, the primary responsibility for administering environmental legislation, including the AWPCA. See § 22-22A-2(1), Ala. Code 1975; Alabama Dep't of Env't Mgmt. v. Friends of Hurricane Creek, 71 So.3d 673, 674 (Ala. Civ. App. 2011). The AWPCA charges the Alabama Environmental Management Commission ("the commission"), which oversees ADEM, see § 22-22A-6, Ala. Code 1975, with issuing NPDES permits for the discharge of pollutants into the waters of the State. See § 22-22-9(g), Ala. Code 1975.

Alabama regulations relating to NPDES permitting require that each NPDES permit include, among other things, technology-based effluent limitations ("TBELs") that restrict the quantities, discharge rates, and concentration of pollutants discharged by the permittee. See Ala. Admin. Code (ADEM) r. 335-6-6-.14(3)(a); see also Ala. Admin. Code (ADEM), r. 335-6-6-.02(u) (defining "effluent limitations"). In addition, a permit must include water-quality-based effluent limitations ("WQBELs") that are in addition to or more stringent than the required TBELs when ADEM determines, among other things, that such limitations are necessary to achieve certain water quality standards. See Ala. Admin. Code (ADEM), r. 335-6-6-.14(3)(e)(1); Alabama Dep't of Env't Mgmt. v. Alabama Rivers All., Inc., 14 So.3d 853, 859 (Ala. Civ. App. 2007).

B. Factual Background Metalplate operates two hot-dip steel-galvanizing plants - Plant 1 and Plant 2 - in Birmingham. Metalplate's processes involve the use of zinc, and zinc compounds are produced as byproducts of those processes. Dissolved zinc is regulated as a toxic pollutant. Metalplate has a history of "elevated" or "high" quantities of zinc in its storm-water discharges at both plants.^[2] The storm-water discharge from Plant 1 goes to an unnamed tributary that flows into Village Creek, which is in the Black Warrior River Basin. The storm-water discharge from Plant 2 goes to an unnamed tributary that flows into Avondale Creek, which, in turn, is a tributary of Village Creek. The flow of both unnamed tributaries is largely dependent on storm-water flow and storm events. At times, the unnamed tributaries are dry beds.

In 2008, a consent order was entered pursuant to which ADEM required Metalplate to apply for individual NPDES permits to replace the general NPDES storm-water permits under which it had been operating. On December 15, 2010, ADEM provided public notice of the drafts of the individual permits for Plant 1 and Plant 2 to allow any interested person an opportunity to comment on them, as required by Ala. Admin. Code (ADEM), r. 335-6-6-.21. Riverkeeper commented on the drafts, and ADEM subsequently revised them.

On August 29, 2018, ADEM issued NPDES Permit No. AL0080403 for Plant 1 and NPDES Permit No. AL0080411 for Plant 2.^[3] Both permits authorize storm-water runoff associated with metal-finishing storage and operations areas, equipment parking and maintenance areas, and petroleum storage and handling areas. The language in both permits regarding discharge limitations and monitoring requirements is identical. Each permit requires Metalplate to monitor the waterways into which its storm water is discharged. Although the permits require Metalplate to monitor its storm-water outflows for most effluents on a quarterly basis, the permits require it to monitor those outflows twice per month for dissolved zinc, oil and grease, and suspended solids. Neither permit includes a numeric limitation on zinc in Metalplate's storm-water discharges; ADEM concluded that such a numeric limitation was not feasible

"because storm-water events are very unpredictable resulting in varying discharge rates, varying pollutant loadings, and different flows in the receiving waterbodies; the receiving stream flow is variable and largely driven by storm-water; and the complex relationship between the nature of storm-water and receiving waterbodies."

In addition to the monitoring requirements, the permits require Metalplate to adopt TBELs in the form of a best-management-practices ("BMP") plan to prevent or minimize the potential for the release of pollutants into the waters of the State. BMPs are defined as schedules of activities, prohibitions of practices, maintenance procedures, and other management practices to prevent or reduce pollution. BMPs also include treatment requirements, operating procedures, and practices to control plant-site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw-material storage. 40 C.F.R. § 122.2. Federal regulations authorize ADEM to use BMPs to control or abate the discharge of pollutants when numeric effluent limitations are infeasible, or the BMPs are reasonably necessary to achieve effluent limitations and standards, or to carry out the purposes and intent of the CWA. 40 C.F.R. § 122.44(k)(3) and (4).

The permits require Metalplate's BMP plans to include, among other things, provisions for Metalplate to examine each facility component or system for its potential for releasing pollutants and to establish specific preventative or remedial measures to be implemented; to establish a program to identify and repair leaking equipment items and damaged containment structures; to prevent the spillage or loss of fluids from vehicle- and equipment-maintenance activities; to develop a solvent-management plan; to prevent or minimize storm-water contact with stored materials; and to provide for routine inspections of structures functioning to prevent storm-water pollution. The BMP plans are required to be made available to the director of ADEM upon request, and the director can require Metalplate to correct any deficiency he or she finds in the plans.

Additionally before issuing the permits, ADEM conducted a "reasonable potential analysis" and determined that storm-water discharge at both plants had a reasonable potential to cause or contribute to an amount of zinc to enter the waterways beyond water-quality standards. As a result of that determination, ADEM included in the individual permits certain WQBELs to achieve water-quality standards. Specifically, the permits require Metalplate to develop zinc-minimization plans ("ZMPs") within ninety days from the effective date of the permits. To develop the ZMPs, the permits require a professional engineer to prepare and certify a report identifying the potential sources of zinc in the storm-water runoff from the plants and to propose a method of reducing the impact of those sources to the unnamed tributaries, including a time line for implementing that method. The engineering report must contain a map of the facility that includes "the property boundaries, a general description of the industrial or other activities occurring within each area of the property, identification of the retention pond, identification of all outfalls, the direction of storm-water flows within and around the property boundaries, and the location of any proposed structural controls." The...