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United States v. Gulf States Steel Inc.

Citation: 29 ELR 21381
No. No. CV-97-BU-2755-M, 54 F. Supp. 2d 1233/48 ERC 1839/(N.D. Ala., 06/08/1999)

The court holds an Alabama steel mill liable for 1,000 violations of its national pollutant discharge elimination system (NPDES) permit. The mill's NPDES permit placed effluent limitations on one river outfall and six outfalls within the mill's internal wastewater treatment system. The court first holds that the mill's failure to seek review of the permit under Federal Water Pollution Control Act (FWPCA) § 509(b)(1) does not preclude the mill from litigating the validity of the internal waste stream effluent limitations. The terms and conditions of the mill's NPDES permit is not subject to federal review under FWPCA § 509(b)(1) because the permit was issued by the state environmental agency, not the U.S. Environmental Protection Agency. Nevertheless, the court then holds that the mill is prevented from contesting the permit's effluent limitations on the internal waste streams because the mill failed to seek administrative or judicial review of the permit under Alabama state law. Alabama state law expressly prohibits an alleged FWPCA violator from collaterally attacking the terms of its permit in an enforcement proceeding. Thus, regardless of whether the internal waste streams of the mill are themselves waters of the United States, the mill must comply with all of the terms and conditions of its NPDES permit. Moreover, the mill may not escape liability regarding violations from outfalls on the internal waste streams based on the alleged verbal assurances of state representatives.

The court next holds that the mill has not presented sufficient evidence to establish the single operational upset defense for any of its permit violations. Simultaneous multiple pollutant parameter violations are to be counted as if they were a single pollutant parameter violation where the multiple pollutant parameter violations were caused by a single operational upset. To hold otherwise would give a polluter incentive to drag its heels in curing noncompliance resulting from an upset. Moreover, violations that are long standing, continuous, or reoccur every year at the same time, such as warm summers, are generally not considered to result from "exceptional incidents," and such noncompliance is not merely "temporary" and, therefore, does not qualify as upsets. And the single operational upset defense does not apply to violations that may be traced merely to some single cause. The court, therefore, holds that the United States is entitled to judgment as a matter of law as to the mill's liability for the 1,000 NPDES violations.

Counsel for Plaintiff
G. Douglas Jones
U.S. Attorney's Office
200 Robert S. Vance Federal Bldg.
1800 5th Ave. N., Rm. 200, Birmingham AL 35203
(205) 731-1785

Counsel for Defendant
H. Thomas Wells
Maynard, Cooper & Gale
2400 AmSouth/Harbert Plaza
1901 6th Ave. N., Birmingham AL 35203
(205) 254-1000