Gwinnett County v. Lake Lanier Ass'n

• Decision Date: 16 January 2004
• Docket Number: No. A03A2342., No. A03A2340, No. A03A2341
• Citation: 265 Ga. App. 214,593 S.E.2d 678
• Parties: GWINNETT COUNTY v. LAKE LANIER ASSOCIATION et al. Reheis v. Hughey et al. Hughey v. Environmental Protection Division, Department of Natural Resources.
• Court: Georgia Court of Appeals

593 S.E.2d 678

265 Ga. App. 214

GWINNETT COUNTY v. LAKE LANIER ASSOCIATION et al.

Reheis v. Hughey et al.

Hughey v. Environmental Protection Division, Department of Natural Resources.

Nos. A03A2340, A03A2341, A03A2342.

Court of Appeals of Georgia.

January 16, 2004.

Certiorari Granted April 28, 2004.

Alston & Bird, Lee A. DeHihns III, E. Peyton Nunez, Daniel N. Esrey, for Gwinnett County.

Smith, Gambrell & Russell, Stephen E. O'Day, Andrew M. Thompson, Justine I. Thompson, Atlanta, for Lake Lanier Association and Hughey et al.

Thurbert E. Baker, Atty. Gen., Isaac Byrd, Deputy Attorney General, John E. Hennelly, Senior Assistant Attorney General, William R. Phillips, Assistant Attorney General, for

Reheis and Environmental Protection Division.

King & Spalding, Patricia T. Barmeyer, Lewis B. Jones, Atlanta, Andrew, Merritt, Reilly & Smith, Paul E. Andrew, Lawrenceville, Clyde Y. Morris, Jr., Mary M. Asbill, Atlanta, amici curiae. ELDRIDGE, Judge.

Lake Lanier Association, Terence D. Hughey, Upper Chattahoochee Riverkeeper Fund, Inc., and the Sierra Club petitioned for judicial review to the Superior Court of Hall County from the administrative law judge's ("ALJ") affirmance of the grant by the Georgia Environmental Protection Division ("EPD") of wastewater discharge National Pollutant Discharge Elimination System ("NPDES") Permit No. GA0038130 to Gwinnett County, allowing it to discharge into Lake Lanier highly treated wastewater. The trial court affirmed in part and reversed in part the ALJ's Final Decision. The reversal involved two issues: public notice and antidegradation; with regard thereto, the trial court misinterpreted state antidegradation regulations and applicable law, as well as the public notice and comment regulations, which we reverse as legal error. As to the trial court's affirmance of the ALJ, we find no error and affirm.

Factual Basis: Case Nos. A03A2340 and A03A2341

The Georgia Water Quality Control Act, OCGA § 12-5-20, authorizes the EPD to implement, administer, and enforce the Act and rules promulgated under the Act regarding water quality standards and issuing permits. The Georgia Board of Natural Resources ("Board") is conferred with the authority to promulgate rules and regulations governing water quality standards and the NPDES, which EPD implements. OCGA §§ 12-5-23(b)(3), (c)(15); 12-5-30; 33 USC §§ 1311(a); 1342. The Board adopted water quality standards and the federal Environmental Protection Agency ("EPA") approved them for designated uses, which specifically included water quality standards for Lake Lanier. Ga. Comp. R. & Regs. r. 391-3-6-.03(5), (17)(e). The Director of EPD has the responsibility for issuing NPDES permits. OCGA §§ 12-5-23(b)(3), (c)(15); 12-5-30. Because the EPA has approved Georgia's NPDES program as complying with the federal Clean Water Act, any challenges to such issued permits are evaluated against the requirements of Georgia law and regulations and those federal regulations incorporated by reference. See Prairie Rivers Network v. Illinois Pollution Control Bd., 335 Ill.App.3d 391, 403, 269 Ill.Dec. 575, 781 N.E.2d 372 (2002) (challenge to Illinois-issued NPDES permit).

Any discharge or proposed discharge of any pollutant into Georgia waters from a point source must obtain a NPDES permit from EPD. OCGA § 12-5-30; Ga. Comp. R. & Regs. r. 391-3-6-.06(3)(a). Such permit is issued for no more than five years. Ga. Comp. R. & Regs. r. 391-3-6-.06(15)(a). The NPDES permit for a new point source discharge must contain limitations necessary to meet water quality standards which were established to protect the receiving water's designated uses. Ga. Comp. R. & Regs. r. 391-3-6-.03(2)(c)(3). In determining what effluent limitations to establish in the NPDES permit, an evaluation of the proposed discharge is required by the regulations. Ga. Comp. R. & Regs. r. 391-3-6-.06(4)(b) (incorporated by reference 40 CFR § 122.44(d)(i)). Only those pollutants which are known or expected to be present in the discharge must be limited in the permit. Proposed NPDES permits must be submitted by EPD to the EPA for review and approval. 33 USC § 1342(d)(1); 40 CFR § 123.43(a)(1). Thus, EPD is prohibited from issuing a permit if EPA objects within 90 days. 33 USC § 1342(d)(2). The NPDES permit in this case was submitted by EPD to EPA for review; and both EPD and EPA gave the permit application a higher level of scrutiny than usual without either finding any objectionable issues.

Although the administration and enforcement of the permit program initially [were] vested entirely in the EPA, Congress intended that much of this authority would devolve to the states. See § 101(b), 33 USC § 1251(b). The Clean Water Act stipulates that any time after the promulgation of EPA guidelines establishing the minimum elements of state permit programs, a state may submit a description of a proposed program, along with a statement from the state attorney general that state law provides adequate authority to carry out the program, for evaluation by the Administrator of the EPA. If the state program satisfies the statutory requirements of section 402(b) [of the Clean Water Act], 33 USC § 1342(b), and the guidelines issued under section 304(i), 33 USC § 1314(i), the Administrator must approve the program. The state would then assume primary responsibility for the issuance of permits and for the administration and enforcement of the NPDES program within its jurisdiction.

Citizens for a Better Environment v. Environmental Protection Agency, 596 F.2d 720, 721-722 (7th Cir.1979); accord Prairie Rivers Network v. Illinois Pollution Control Bd., supra at 398.

On August 4, 1999, Gwinnett submitted a NPDES permit application to EPD to discharge highly treated wastewater into Lake Lanier. On August 8, 2000, EPD provided a draft permit ("Permit") for public comment, providing a fact sheet for Lake Lanier as the discharge site and giving a general geographic description of the discharge point as near Buford Dam in Lake Lanier. During the public comment period, EPD received over 200 comment letters from the public both for and against the Permit. The Association submitted comments during the public comment period. On November 9, 2000, after the public comment period had closed, EPD issued the Permit to Gwinnett County to discharge highly treated wastewater from the North Advanced Water Reclamation Facility ("North Plant") to the Buford Dam embayment of Lake Lanier. Also, the EPD issued its response to the public comments. After making revisions to the draft permit versions based on the public comments, the EPD did not put the Permit out for another public notice and comment period prior to issuing the final Permit. The final Permit included a revised discharge point in Lake Lanier near Buford Dam, which was determined after the close of the public comment period.

On December 8, 2000, Hughey, the Association, the Riverkeepers, and Sierra Club (hereinafter referred to collectively as the "Association") administratively appealed EPD's permit issuance. On March 16, 2001, Gwinnett was permitted to intervene in the appeal. On March 23, 2001, the Association filed a motion for summary determination, contending that in issuing the Permit EPD violated the applicable public notice and comment requirements. On April 20, 2001, the ALJ denied the motion, finding that EPD had complied with applicable public notice and comment requirements.

Over 17 days, the ALJ took testimony, held an evidentiary hearing involving 24 witnesses, and made findings of fact and conclusions of law based upon such evidence. On October 16, 2002, the ALJ issued a Final Decision affirming the EPD's permit issuance and finding in favor of EPD and Gwinnett on all issues. In determining whether the Permit complied with antidegradation requirements, the ALJ found: that the discharge was necessary for social and economic development; that Gwinnett had demonstrated the need for additional wastewater capacity; that there were no alternatives available to Gwinnett; that returning treated water to Lake Lanier provided such necessary social and economic development; that Gwinnett had affirmatively demonstrated to EPD compliance with antidegradation requirements; and that EPD approved Gwinnett's demonstration.

Factual Basis: Case No. A03A2342

Gwinnett's permit application indicated that the discharge was not expected to contain any detectable levels of mercury. Samples taken at the North Plant facility did not indicate the presence of mercury coming into the plant. The data reviewed by an expert witness showed that there would be no mercury coming into the plant. Further, the expert testified that even if mercury were present in the influent, the processes utilized by the North Plant would remove the metal to nondetectable levels in the effluent. The North Plant is patterned after the most advanced treatment facilities in the country. Testing at such other facilities has shown no evidence of mercury or other materials at levels that produce acute or chronic toxicity in the effluent. The Permit contained the requirements that Gwinnett perform quarterly Priority Pollution and Whole Effluent Toxicity testing and monitoring for the discharge for mercury.

At the hearing, Roosevelt Childress, the Chief of the U.S. EPA's Region 4 NPDES and Biosolids Permit Section, testified. For the last thirty years of the existence of the NPDES program, he has reviewed and supervised NPDES permits for eight states including Region 4. Childress gave his expert testimony that the Permit posed no environmental or health risks. He further testified that the Permit did not authorize the unlimited discharge of mercury as contended by the Association. If the required monitoring under the Permit were to indicate the presence of mercury in the discharge, the State could reopen the Permit and include in it an effluent limit for mercury to...