Editor’s note: The Anniston Star’s investigation of state and national environmental regulation, which began with a focus on asbestos, continues today with a look at the Alabama Department of Environmental Management.The regulatory problems faced by ADEM have led to numerous lawsuits.
In 2001, the grassroots Cahaba River Society sued the chicken-processing company Gold Kist, alleging that the company’s plant near Trussville violated its wastewater discharge permit 385 times over a five-year period.
Ruling in the plaintiffs’ favor, U.S. District Judge Lynwood Smith found that ADEM had failed to enforce federal laws in allowing the pollution to continue.
If it had enforced the laws, ADEM might have prevented Gold Kist from pumping millions of gallons of wastewater containing fecal coliform bacteria and ammonia into a tributary of the Cahaba River, just 30 miles north of the point where Birmingham draws much of its drinking water.
ADEM has been accused for years of being too lenient in enforcing environmental laws, critics say.
"There’s been a mindset that’s plagued ADEM for the last 22 years to interpret the law the way they wanted to interpret it," said Jamie Hill, executive director of the Birmingham-based Alabama Environmental Council.
"They, meaning the leadership, have often stood by the claim that they’re not a land-use, zoning, permitting agency, but that's not entirely true."
In a first-of-its-kind study of ADEM’s enforcement policy, an advisory committee of environmental experts formed by the state Environmental Management Commission found ADEM’s penalties and guidelines insufficient for the kinds of violations the agency encounters.
The policy doesn’t outline the factors ADEM inspectors should consider when determining the appropriate course of action for a violation, the report said. It doesn’t list some basic responses available to inspectors, such as imposing multiple penalties, escalating the administrative orders or suspending the violator’s permit. It doesn’t offer guidance on calculating penalties. In fact, it doesn’t even define what is meant by terms such as "minor violation," "significant exceedance," and "major noncompliance."
ADEM is to respond to major landfill and water violations with phone calls, letters and administrative orders — but no mention is made of penalties, the report said.
"The department has been steadfast in refusing to explain how it arrived at penalty amounts," said David Ludder, executive director of the Tallahasee, Fla.,-based Legal Environmental Assistance Foundation and a member of the advisory committee. "And from a public standpoint, those of us who have been watching administrative orders have been very frustrated."
In addition, ADEM’s records are often incomplete, making it difficult to establish a history of violations and justify increased penalties.
The same problem arises in granting discharge permits, critics say.
In 2003, the Birmingham-based coke producer Sloss Industries Inc., applied for a permit to discharge pollutants such as cyanide and heavy metals into Five Mile Creek, a tributary of the Black Warrior River. The permit application left out a string of enforcement actions, but ADEM granted the permit, giving the company three years to come into compliance with the former industrial creek’s more-stringent fish and wildlife classification.
LEAF sued Sloss Industries and ADEM over the permit, saying it gave the company too long to come into compliance with the creek’s new standards. The environmental group argued that ADEM’s casual interpretation of environmental regulations had allowed the agency to determine that the application was complete, even though it wasn’t.
Montgomery Circuit Judge William Shashy disagreed. Under the existing statutes, he said, ADEM had the authority to make such an interpretation. LEAF is appealing the ruling.
The agency’s money and enforcement problems can be traced to the Legislature, critics say. State lawmakers have allowed ADEM to profit from permit fees, but not from penalties. The law requires that any money the agency gains above the costs of inspections and administering penalties must go to the state’s general fund. The purpose is to avoid a "speed trap" mentality, officials say. But critics contend it provides ADEM with more of an incentive to process businesses than to police them.
Clint Niemeyer, ADEM’s public-affairs officer, explained that the agency originally was created as a place where businesses could do one-stop shopping for environmental permits in an effort to bring poor, rural Alabama up to par with other industrialized states. He acknowledged that the procedures used in those days to regulate the environment needed to catch up with the changing complexity of the agency’s mission.
"I guess what I would offer is, it seems people in this state are very adamant about having a good environment for themselves and their children, and I think we all do, every single person that works here feels the same way," Niemeyer said.
"Some of the criticism we have felt was unfair in the past has centered more than anything on our enforcement mechanisms. This is not falling on deaf ears, and we are looking into the entire process of how we assess penalties, the fairness of that. That’s really a lynchpin of a lot of the problems."
