Black Warrior Riverkeeper legal report

By: Mark Martin and David Whiteside

Executive Summary for 2001-2006

BLACK WARRIOR RIVERKEEPER LEGAL DOCKET

Filed for Black Warrior RIVERKEEPER by Mark Martin Esq, with support from the staff,  Riverkeeper's legal actions address significant and ongoing pollution violations throughout the Black Warrior River watershed,  the largest river system entirely contained within Alabama , "the River State ."  Riverkeeper's legal actions from 2002–2006 have addressed over 10,000 Clean Water Act violations in the Black Warrior basin.  Litigation is not always the most popular route, but it is often the best way to convince violators to cease burdening waterways and the public with harmful wastes.  Riverkeeper believes that clean water is a basic human right that polluters have effectively stolen from countless citizens in the Black Warrior basin.  While many of the people Riverkeeper represents -- the 1.1 million Alabamians living in the watershed -- lack financial or political clout, the law is the law and Riverkeeper intends to use it to maintain and restore the recreational opportunities, drinking water, fisheries, scenery, and prosperity that clean waterways offer.  Alabama is a state whose freshwater biodiversity is second to none, but ranks dead last in environmental protection -- Riverkeeper was honored by the Alabama Rivers Alliance "Watershed Group of the Year" award in 2006.

May 2006 – present.  Black Warrior RIVERKEEPER filed a notice of intent to sue the Brookside Village Wastewater Treatment plant in Jefferson County for over 1,000 Clean Water Act violations.

December 2005 – present.  Black Warrior RIVERKEEPER filed a notice of intent to sue the Moundville Wastewater Treatment plant in Hale County for an alleged 1,486 Clean Water Act violations.

October 2005 – present.  Black Warrior RIVERKEEPER filed a notice of intent to sue the Cordova Wastewater Treatment plant in Walker County for an alleged 518 Clean Water Act violations.  Cordova’s discharges pollute the Mulberry Fork of the Black Warrior River.  Further action is pending.

September 2005 – present.  After Black Warrior RIVERKEEPER filed notice of intent to sue East Walker County Sewer Authority under the Clean Water Act, ADEM filed a lawsuit against the wastewater treatment plant for their alleged 4,473 Clean Water Act violations.  Discharges pollute the Mulberry Fork of the Black Warrior River.  This action is still pending.

November 2004 – present.  Donaldson Correctional Facility, a state prison in Jefferson County had an alleged 1,060 Clean Water Act violations and was discharging sewage for nine years into Big Branch of Valley Creek.  After RIVERKEEPER issued Notice of Intent to Sue Donaldson, the Alabama Attorney General’s office pre-empted us with a state suit.  We then intervened in the state case.  Black Warrior RIVERKEEPER, the Alabama Attorney General’s Office, and the Department of Corrections are negotiating a final settlement of the lawsuit.  Under the terms of the settlement, Donaldson has contracted with NOVUS Utility Services to improve and operate the plant.  Most of the improvements, such as a new surge basin (see right) are already in operation and NOVUS reports that discharge violations have ceased.

August 2004 – present.  RIVERKEEPER found 465 Clean Water Act violations of the Clean Water Act for total suspended solids at Vulcan Material’s Bessemer Quarry and filed a notice of intent to sue.  The discharges from this limestone quarry muddies the creek for many miles downstream, and is detrimental to aquatic species including fish and other creatures that depend on clean water. 

Two months later, days before the suit could be filed, the Alabama Department of Environmental Management (ADEM) issued a proposed consent order containing a penalty of $50,000 without explaining the application of the 6 penalty factors required by Alabama law, and without setting out findings of fact which support the penalty amount. 

Black Warrior RIVERKEEPER filed an appeal of the consent order which will be scheduled for a hearing in the near future. The appeal asks the Environmental Management Commission to confirm that ADEM must  follow statutory law which would require ADEM to develop a procedure for assessing civil penalties, clearly setting out the rationale for the amounts of penalties. Under ADEM’s current scheme, penalty amounts often result from secret negotiations between ADEM and the violator.  Black Warrior Riverkeeper contends that Alabama’s law and the Clean Water Act require a process transparent to and reviewable by the public.

May 2002 – June 2003.  Sloss Industries was repeatedly dumping illegal amounts of cyanide into Five Mile Creek, a tributary of the Black Warrior.  Sloss had a permit to dump a little over one pound of cyanide a day.  However, they exceeded the cyanide portion of their permit for over 500 straight days and were dumping as much as 20 pounds of cyanide per day. Because the Alabama Department of Environmental Management (ADEM) failed to act, RIVERKEEPER determined that litigation was the only remedy to the cyanide discharges. Riverkeeper’s collaborative suit with Alabama Rivers Alliance and the Legal Environmental Assistance Foundation prodded ADEM into action.  When Sloss settled with ADEM, they agreed to pay $675,000 in civil penalties to Alabama. They must also curb their discharges, donate 350+ acres of land on Five Mile Creek for a greenway and public park, and plant 25,000 trees along the creek.

Updated May 22, 2006 - D.P.W.