Photo Credit: https://www.activistpost.com/2013/04/7-tap-water-toxins.html (last visited January 29, 2021).
Written By: Dylan Martin
Member, American Journal of Trial Advocacy
Pollution, climate change, and environmental regulations have been at the forefront of political and legal debate for years and had reemerged once again throughout the 2020 Presidential campaign. Naturally, depending on the swing of the political pendulum of power in the White House every 4 to 8 years, immense changes and rollbacks of environmental protections come and go with the change in the political tide. According to a recent New York Times analysis, since the beginning of President Trump’s administration in 2016, there have been “100 environmental protections that have been reversed or in the process of being rolled back.”[i] To be fair, even with significant rollbacks of protections there will always be the occasional violation or underenforcement of an environmental regulation. However, since the creation of the EPA in 1970, legislation enacted by Congress including, but not limited to, the Clean Water Act (“CWA”), National Environmental Protection Act (“NEPA”), Clean Air Act (“CAA”), and Resource Conservation and Recovery Act (“RCRA) have been underenforced by governmental agencies, rolled back by the federal government itself, and violated by permit holders in heavy regulated industries such as coal mining. Due to this lack of enforcement, conservationist and environmental groups such as Defenders of Wildlife, Black Warrior River Keeper, Green Peace, and the SELC consistently challenge regulatory agency decisions and file lawsuits in federal court under citizen suit provisions of the aforementioned environmental acts.
In Parts 1 & 2, this article will briefly lay out some of the key provisions for two of the most cited environmental protection acts, which are applicable to the context of toxic pollutants in our nation’s waterways. In Part 3, this article will address recent Alabama caselaw portraying a small microcosm of a larger national issue associated with coal mining permits, wastewater discharge, acid mine drainage cites as well as the current status of the Black Warrior River.
- Clean Water Act (“CWA”)
The Clean Water Act (“CWA”) was enacted by Congress in 1972 with the purpose “to restore and maintain chemical, physical, and biological integrity of the Nation’s waters.”[ii] The Act provides funding to municipalities and states to encourage the protection of the Nation’s waters and prohibits all discharges of pollutants except as provided in the Act.[iii] There are two permits under the CWA: (1) Section 402 of the Act provides for the National Pollutant Discharge Elimination System (NPDES) permit program, and (2) Section 404 provides for the “Dredge and Fill” permit program.[iv] Both programs are administered by the Environmental Protection Agency and the U.S. Army Corps of Engineers; however, states can apply for authority to implement them. Currently, the Alabama Department of Environmental Management implements the NPDES permit program in the state. A majority of “dredge and fill” permits are still issued by the U.S. Army Corps of Engineers. The CWA heavily implicates the activities of the mining operations, specifically with respect to the coal ash ponds/sediment ponds. Runoff of heavy sediments and other toxic chemicals from these ponds are directly regulated by the CWA as a result of these toxic chemicals running into the waters of the United States.
- National Environmental Protection Act (“NEPA”)
NEPA is an extremely important piece of legislation to discuss because it is at the heart of many issues involved in the litigation concerning the Black Warrior River as well as litigation across the country. Congress enacted NEPA on January 1, 1970 “[t]o declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological system and natural resources important to the Nation; and to establish a Council on Environmental Quality.”[v] The Council on Environmental Quality (“CEQ”) is responsible for writing the NEPA regulations, and all federal agencies are responsible for complying with the review process imposed by the statute.[vi] The CEQ regulations require that “[a]gencies shall integrate the NEPA process with other planning at the earliest possible time to insure that planning and decisions reflect environmental values, to avoid delays later in that process, and to head off potential conflicts.”[vii]
The most important provision in NEPA requires all federal agencies to report the environmental impact of proposed actions.[viii] CEQ regulations also instruct “[a]gencies [to] integrate the NEPA process with other planning at the earliest possible time to insure that planning and decisions reflect environmental values, to avoid delays later in the process, and to head off potential conflicts.”[ix] The first step for any federal agency undertaking an action that may qualify as a “major Federal action significantly affecting the quality of the human environment,” is to determine whether that action is one that typically requires an Environmental Impact Statement (“EIS”).[x] Agencies will typically prepare an Environmental Assessment (EA) for actions that do not require an EIS normally, have not been categorically excluded from the NEPA process, or are to indistinctive to determine whether an EIS is required. An EA is different from an EIS in terms of the depth and detail required. An EA is a “concise public document” that “[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact (FONSI), and briefly discusses ‘the need for proposal[s], alternatives, and the environmental impacts of the proposed action or alternatives.’”[xi] Agencies may try to avoid the burden of preparing an EIS through: mitigation at the EA stage, segmenting projects so that each project has no individual significant impact, seeking categorical exclusions for actions under NEPA, or tiering EA’s for specific programs. Categorical exclusions are “[a]ctions which do not individually or cumulatively have a significant effect on the human environment . . . therefore, neither an environmental assessment nor an environment impact statement is required.”[xii]
According to CEQ regulations, agencies must also discuss mitigation measures if it is to prepare an EIS. Mitigation includes: “[n]ot taking action or certain parts of an action;” “[l]imiting the degree or magnitude of the action and implementation;” “[r]epairing, rehabilitating, or restoring the affected environment;” “[r]educing or eliminating the impact over time by preservation and maintenance operations during the life of the action;” and “compensating for the impact by replacing or providing substitute resources or environments.”[xiii] Agencies whose actions do not follow proper NEPA procedures are subject to judicial review. It is important to note that unlike other Federal environmental statutes, NEPA does not have a citizen suit provision. Therefore, citizens seeking relief for an agency action for any violation of NEPA must do so under the Administrative Procedure Act (“APA”).[xiv] Further, NEPA is applicable to coal mining sites because the Army Corps of Engineers has consistently authorized these permits without first doing a comprehensive, timely, and proper environmental assessment for these major federal actions.
- Black Warrior River Basin
What is the Black Warrior River and why is it important? The Black Warrior River is 180 miles long and stretches from the southern edges of the Appalachian Highlands to the Tombigbee River.[xv] The river is fed by three main tributaries, Sipsey Fork, Locust Fork, and Mulberry Fork.[xvi] Part of Sipsey Fork has even earned Federal Wild and Scenic Designation for its “[d]iverse plant life and outstanding scenery. . . .”[xvii] The Black Warrior River and Basin is vitally important to many cities and townships who pull from the river and its tributaries for drinking water, industrial water, and hydroelectric power. The river also provides for some of the best bass fishing and watersports in the region.[xviii]
In addition to being a haven for vast wildlife and watersports, the Black Warrior River Basin contains rich seams of coal. Coal mining is a large and profitable industry in Alabama. However, the process of coal mining, especially strip mining, can create extremely negative consequences for the surrounding environment, wildlife, and local inhabitants. Strip mining includes blasting the surface of the mountaintops with explosives, removing the coal from the coal seams, and discharging the dredged or fill material into viable water streams.[xix] This process typically leaves the mined-out area barren, with poor reclamation efforts.[xx] Additionally, these coal mining operations include sediment ponds that are designed to catch the runoff containing these toxic heavy metals and allow for settlement of toxic waste at the base of the pond.[xxi] Hopefully, the result being clean water flowing into the states’ waterways. However, according to the Black Warrior Riverkeeper many sediment ponds at mines in the area are inadequate and cannot contain the amount of runoff flowing into them.[xxii] Consequently, the toxic materials do not settle and the unsettled toxic substances flow into Alabama waterways.[xxiii] There was no initial indication the inadequacy of the sediment ponds were due to a lack of lining. In 1976, the Industrial Environmental Research Laboratory, led by Dr. David G. Stephan, published a report on the Effectiveness of Surface Mine Sedimentation Ponds.[xxiv] The report found that the sedimentation ponds were theoretically successful under low flow conditions, “but performed poorly under high flow conditions.”[xxv] The report stated this inadequacy was a result of poor construction, not in accordance with the approved plans, and poor maintenance.[xxvi] Thus, the likelihood of pollution of the waterway is likely. This water runoff flowing into watersheds, including the Black Warrior River, can typically contain pulverized coal, clay, mercury, selenium, lead, iron, manganese, aluminum, and chromium creating a toxic combination which poisons the water, ruins riverbeds, and threatens wildlife.[xxvii] This pollution is a huge problem due to the amount of cities that pull water from the Black Warrior River for drinking water. According to the Black Warrior Riverkeeper, Birmingham, the largest city in Alabama, obtains roughly half of its drinking water from the Black Warrior and its tributaries. Bessemer, Cullman, Jasper, Oneonta, Tuscaloosa, and many other cities acquire most of, if not all, their water from the Black Warrior River basin. People from all over frequent the river to swim, fish, paddle, and recreate. The river is also heavily relied upon for commercial navigation and industry, making it a silent giant in the state’s economy.[xxviii]
What is the scope of the issue? The Black Warrior River watershed contains over ninety active coal mining operations and hundreds of inactive mines.[xxix] According to the Southern Environmental Law Center (“SELC”), the U.S. Army Corps of Engineers has allowed “[t]he majority of the Black Warrior River watershed’s approximately 95 active coal mines to operate under a general permit known as Nationwide Permit (NWP21) 21.”[xxx] These general permits allow for the unlimited filling of dredged materials into the Black Warrior River and Basin. The SELC, Black Warrior Riverkeeper, and others have brought numerous lawsuits against the Corps under the Administrative Procedure Act (“APA”) for violations of the Clean Water Act (“CWA”) and the National Environmental Policy Act (“NEPA”).[xxxi] Generally, they argue the use of NWP21 “does not take local wetland and stream conditions into account, study the possible impacts of the mines or provide for public input.”[xxxii] In June 2010, the Corps suspended NWP21 in the Appalachian regions of Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia.[xxxiii] The suspension was due to concerns of the water quality in the Appalachian States, but apparently the same concerns were not harbored for Alabama’s waterways. The NWP21 still remained in effect in Alabama coal mining operations thereby severely threatening Alabama’s waterways, forest habitats, and wildlife surrounding the Black Warrior River.[xxxiv] In 2016, the 11th Circuit Court of Appeals held that the U.S. Army Corps of Engineers was not “arbitrary and capricious” in finding minimal individual and cumulative adverse effects or in treating new and old coal mining activities differently in their reissuance of NWP21.[xxxv] Despite this finding, environmental activist organizations continue to challenge this practice of dredge and fill permits utilized by the Corps as well as bringing suit for violations of the CWA regarding Acid Mine Drainage sites.[xxxvi]
The upstream legal battles over the pollution stemming from abandoned and active mining operations continues across numerous states and jurisdictions. According to the Black Warrior Riverkeeper, many old coal mines were not properly reclaimed resulting in “hundreds of acid mine drainage (AMD) sites.”[xxxvii] Reclamation is the process of removing harmful toxic substances from a RCRA facility and constructing containment structures to prevent further releases. According to the EPA, “the drainage can contaminate drinking water, disrupt growth and reproduction of aquatic plants and animals, and corrode infrastructure such as bridges.”[xxxviii] One mine is owned by the Drummond family. In May 2019, U.S. District Judge Abdul Kallon issued partial summary judgment in favor of Black Warrior Riverkeeper and dismissed the coal company’s assertion “that the law does not apply to pollution from waste after mine operations ended.”[xxxix] Jim Hecker, co-counsel in the case and Environmental Enforcement Director for Public Justice, stated “[t]his case is a prime example of the need to address long-standing, serious water pollution violations in Alabama.[xl] The Riverkeeper’s citizen suit has worked as Congress intended to enforce the law when governmental agencies have not.”[xli]
However, in the wake of this positive result, there is more work to be done by environmental activists on a national level. In January of 2019, Thomas Spencer from AL.com, published an article stating that as of November 2018, ADEM was considering 25 proposed surface mining permits.[xlii] According to surface-mining.Alabama.gov, as of November 2020, there are only 3 new surface mining permits on file with the commission; however, there are 20 permit renewal applications on file with the ASMC some of which have significant revisions.[xliii] Additionally, many current operating coal mines continue to threaten Alabama’s waterways, wildlife, and drinking water because of general permits like NWP21 which allows the disposal of dredge and fill materials into the river.
[i] Nadja Popovich et al., The Trump Administration Is Reversing More Than 100 Environmental Rules: Here’s the Full List, N.Y. Times, https://www.nytimes.com/interactive/2020/climate/trump-environment-rollbacks-list.html (last visited November 15, 2020); https://www.nationofchange.org/2020/08/24/trumps-toxic-wake-10-ways-the-epa-has-made-life-more-hazardous/ (last visited November 15, 2020); https://www.nationalgeographic.com/environment/2019/02/15-ways-trump-administration-impacted-environment/ (last visited November 15, 2020).
[ii] CWA § 101(a), 33 U.S.C. § 1251(a).
[iii] CWA § 301(a), 33 U.S.C. § 1311(a)
[iv] See generally CWA §§ 402, 404, 33 U.S.C. §§ 1342, 1344.
[v] NEPA § 2, 42 U.S.C. § 4321.
[vi] NEPA § 204, 42 U.S.C. § 4344.
[vii] 40 C.F.R. § 1501.2 (West 2019).
[viii] NEPA § 102(2)(C), 42 U.S.C. § 4332(2)(C).
[ix] 40 C.F.R. § 1501.2.
[x] NEPA § 102(2)(C), 42 U.S.C. § 4332(2)(C).
[xi] 40 C.F.R. § 1508.9.
[xii] 40 C.F.R § 1508.4.
[xiii] 40 C.F.R § 1508.20.
[xiv] 5 U.S.C. § 702
[xv] Black Warrior: Vast and Varied, American Rivers (last visited Nov. 15, 2020), https://www.americanrivers.org/river/black-warrior-river/
[xix] Lacey Kennedy, Overburdened: Undermined, Southern Exposure Films (last visited Nov. 15, 2020), https://www.southernexposurefilms.org/films/overburdened-undermined
[xxiv] Industrial Environmental Research Laboratory, Effectiveness of Surface Mine Sedimentation Ponds, EPA (last visited Nov. 15, 2020), https://nepis.epa.gov/Exe/ZyPDF.cgi/9101OLC6.PDF?Dockey=9101OLC6.PDF, at 3.
[xxvii] Lacey Kennedy, Overburdened: Undermined, Southern Exposure Films (last visited Nov. 15, 2020), https://www.southernexposurefilms.org/films/overburdened-undermined
[xxx] Coal Mining: A Threat to Alabama Waters, Southern Environmental Law Center, https://www.southernenvironment.org/cases-and-projects/coal-mining-a-threat-to-alabama-waters (last visited Nov. 15, 2020).
[xxxiii] Suspension of Nationwide Permit 21, 75 Fed. Reg. 34711 (June 18, 2010) (codified at 33 C.F.R. 330.5).
[xxxiv] Black Warrior: Vast and Varied, American Rivers (last visited Nov. 15, 2020),https://www.americanrivers.org/river/black-warrior-river/
[xxxv] Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Engineers, 833 F.3d 1274, 1290 (11th Cir. 2016).
[xxxvi] See Black Warrior River-Keeper, Inc. v. Drummond Company, Inc., 357 F. Supp. 3d 1271 (N.D. AL 2019) (finding sufficient evidence that acid mine drainage discharged from abandoned coal mine site into stream to support organization’s CWA claim).
[xxxviii] Birmingham Watch, (last visited Nov. 15, 2020), https://birminghamwatch.org/judge-historic-ruling-says-drummond-violating-clean-water-act-ongoing-discharge-closed-mine/
[xlii] Thomas Spencer, New Coal Mining Permits Surge in Central Alabama, Especially in Black Warrior River Watershed, Birmingham News, (last visited Nov. 15, 2020), https://www.al.com/spotnews/2010/12/new_coal_mining_permits_surge.html
[xliii] Permit Applications, Alabama Surface Mining Commission, (last visited Nov. 15, 2020), http://surface-mining.alabama.gov/PermitApplications.html