Environmental UPDATE
www.balch.com
www.balch.com/seenvlaw
www.twitter.com/seenvlaw
1.800.762.2426
2011 ALABAMA ENVIRONMENTAL MANAGEMENT COMMISSION
MEETING OF DECEMBER 16, 2016
Director’s Report
 Budget: Director LeFleur stated that the Alabama Department of Environmental Management’s efficiency and costcutting programs are showing good results. Although there is inadequate funding through the General Fund, the
anticipated fee collection from the concentrated animal feeding operation (“CAFO”) program should provide a stable
budget and allow the Department to meet all its regulatory obligations. This funding, although at a low level, along
with continued Department good performance, should reflect favorably on the National Pollutant Discharge
Elimination System (“NPDES”) program withdrawal petition pending before EPA. The Department will submit a
timely application for a portion of the 2010 Deepwater Horizon BP oil spill settlement to use for improving the
Department’s Mobile physical facilities. According to Director LeFleur, that building is the Department’s most
demanding, unmet financial need at this time.
 Changes at EPA: Director LeFleur mentioned that President-elect Donald Trump has selected Scott Pruitt, the
Oklahoma Attorney General, to head the EPA in his new administration. While the Director stated that he can only
speculate about upcoming changes, there is likely to be a decreased emphasis on climate change and federal control.
The Director said the federal-state balance is likely to be restored.
EPA Headquarters made a recent change to move the Office of Civil Rights (“OCR”), which previously stood alone,
into the Office of General Counsel (“OGC”). The purpose of this decision remains unclear, but the OCR will be
subordinate to the OGC structure. The Director commented that this move will hopefully help EPA respond to several
pending Title VI complaints.
For EPA Region 4, on January 20, 2017, Anne Heard will become Acting Regional Administrator. Mary Walker from
the Georgia Environmental Protection Division will become the head of the Water Protection Division.
 State of the Environment in Alabama: In past reports, the Director has focused on performance measures that
address the last five years. Today’s report focused on the longer historical view. The Director discussed how the public
and the federal government view the state of Alabama’s environment. The Department has issued a survey every five
years since 1998 to see how well the public understands what is occurring in the environment. The data collected shows
that the public has a favorable view of the state’s environment. In 2013, 88% of the public viewed the environment as
improved, as opposed to 76% in 1998. Thirty-six percent of the public views the water as cleaner than 25 years ago, as
opposed to 19% in 1998. The Director also shared some incorrect public perceptions using statistics to show how many
knew the biggest pollution sources for air (motor vehicles) and water (stormwater). From the federal government
perspective, the U.S. Office of Inspector General places Alabama in the top 10 environmental programs in the nation.
The Director then shared some of the data that demonstrates the status of Alabama’s environment. Over time, air
standards have become more stringent, with multiple revisions to the PM2.5, ozone, NOx, SO2, CO, Pb, and regional
haze standards. In 2015, by meeting the lead standard for the first time, Alabama was in attainment for all the air
quality standards. Air emissions have declined materially since 1990. For water, the number of regulated organic
chemicals, inorganic chemicals, radionuclides, and microbes have greatly increased from 23 in 1982 to 89 in 2016.
Eighty-two percent of water systems were in compliance in 1982, while 99% are in compliance in 2016. Overall,
Alabama has much safer drinking water than it has historically had. There has been a large reduction in the number of
impaired waters under Clean Water Act section 303(d). In terms of water quality, today there are 805 miles of
Outstanding National Waters in Alabama, 350 miles of Outstanding Alabama Waters, and 39,738 acres of Treasured
Alabama Lakes, whereas there were zero water bodies with these higher classifications in 1982. In addition, the number
ALABAMA l FLORIDA l GEORGIA l MISSISSIPPI l WASHINGTON, DC
of low-quality classifications for waterbodies (under the Fish & Wildlife classification) has decreased. For land issues,
instead of 141 unlined municipal solid waste landfills in the state in 1989, Alabama now has 31 state-of-the-art lined
landfills. In 2003, the Anniston Army Depot deconstructed 650,000+ weapons without a single unpermitted discharge,
setting the example for a model program of how to eliminate stored chemical weapons. In terms of unauthorized solid
waste dumping, 1,640 dumps have been remediated from 2009-2016. Under the scrap tire program, the rate of solid
waste recycling has increased from 5% in 1989 to 16% in 2016. Since 1989, there have been 11,000 out of 12,000
cleanups of underground storage tank leak sites, with the Department presently addressing the remaining tanks. Since
2001, 300 brownfields have been put to productive use, and 119 brownfield sites are currently enrolled in the
brownfield program.
 Concluding Remarks: Director LeFleur concluded by stating that with the approaching change in administrations, it
was an opportune time to reflect on Alabama’s environmental progress. He stated the public and the federal
government recognize Alabama’s progress, supported by the data. The state of Alabama’s environment is good, and the
Director sees those trends continuing.
Adoptions of Rules
 The proposed amendments to ADEM Admin. Code Rule 335-6 (Water Quality Program Regulations), Chapters 335-65 and 335-6-6 (NPDES-Related Matter) were adopted 7-0.
 The proposed amendments to ADEM Admin. Code Rule 335-6 (Water Quality Program Regulations), Chapters 335-610 and 335-6-11 (NPDES-Related Matter) were adopted 7-0.
 The Commission denied the Petition for Rulemaking to Amend ADEM Admin. Code Rule 335-6-10-.07 (Water
Quality Criteria for Toxic Pollutants EMC Rulemaking Petition 17-02 (NPDES-Related Matters)). Various
environmental groups were requesting that the Commission should direct the Department to create a toxic water quality
criterion for methyl mercury to protect human health. Mr. David Ludder provided oral comments, stating that although
EPA recommended a criterion in 2001 for methyl mercury, ADEM has failed to make a change in the last several triannual reviews. Mr. Ludder referenced the state of Washington as an example where the EPA put forth a federal rule
imposing a criterion for methyl mercury when the state failed to take action. The Director responded that EPA has
reviewed all the Water Quality Standards for the state and has signed off on them, while raising no issues. The Director
encouraged participation in the tri-annual process and recommended that the Commission deny the petition.
Rickey E. Shelby v. ADEM, EMC Docket No. 17-01
 The Commission voted 7-0 to modify the Department’s proposed administrative order to reduce the penalty amount
from $3,500 to $2,500.
Future Business Meetings
 The Commission’s next meeting will take place on February 10, 2017, at 11:00 in the Alabama Room at ADEM.
Public Comments
 Mr. David Ludder participated in the public comments at the end of the meeting, commenting on the August 2016
Department publication entitled “Community Engagement.” Mr. Ludder stated that the EMC should advise the
Department to suspend promotion of rubber crumbs (shredded scrap tires) on playgrounds and recreational areas until
there is a definitive answer as to whether these crumbs are safe. The Director commented that they will review the
documents Mr. Ludder submitted and will take the information under advisement.
 Mr. Michael William McMullen commented on a letter sent from Director LeFleur to President-elect Donald Trump,
stating that the Director should not imply that his letter represents the policy viewpoints of the Department without the
Commission’s approval. Mr. McMullen also commented that ongoing ADEM enforcement actions are not having an
overall deterrent effect.
Questions about items appearing in this Update may be directed to Steve McKinney at (205) 226-3496 in Birmingham or Jim Byram at (334) 269-3159 in Montgomery,
or our website can be accessed at www.balch.com. This publication is intended to provide general information and does not constitute advice. It is not intended as a
solicitation and, in the event legal services are sought, no representation is made that the quality of the legal services to be performed is greater than the quality of legal
services performed by other lawyers.
ALABAMA l FLORIDA l GEORGIA l MISSISSIPPI l WASHINGTON, DC