New EPA administrator faces DeKalb County sewage spills, coal ash

By David Pendered

DeKalb County’s discharge of raw sewage is one of the first issues facing the newly appointed EPA administrator for the Southeast. Coal ash is right behind sewage.

The Biden administration has tapped Daniel Blackman, the Sierra Club Georgia Chapter’s executive committee chair, for the EPA Region 4 post. Blackman will oversee federal environmental operations in Georgia and eight surrounding states, plus six recognized tribes in those states.

Blackman, a Democrat, took the Sierra Club job in April after narrowly losing the Jan. 5 runoff election to Lauren “Bubba” McDonald, a Republican, for a seat on the Public Service Commission, the state’s utility regulator.

Blackman has not been cited as a potential Democratic challenger for statewide office in the 2022 election cycle.

Georgia has two hot-button issues in the Region 4 office:

• In DeKalb County, the issue is the federal lawsuit that challenges the EPA’s enforcement of the federal Clean Water Act in the consent decree that’s to halt the discharge of raw sewage into waterways of the state. The next hearing will be on Dec. 16.
• Statewide, the issue is the disposal of coal ash created over decades in the process of generating electricity. The Georgia Legislature faces a number of bills by Republicans and Democrats when it returns in January 2022. Critics of Georgia’s coal ash program object to EPA’s Dec. 16, 2019, decision to approve Georgia to develop its own program to manage coal combustion residuals, in place of federal standards. In October, the Georgia Court of Appeals upheld the PSC vote to allow Georgia Power to pass to consumers a portion of costs of compliance.

On Dec. 16, the EPA is scheduled to defend its actions regarding DeKalb County in the U.S. Court of Appeals in Atlanta. The South River Watershed Alliance, Inc. filed the lawsuit against DeKalb County to allege the EPA has not engaged in “diligent prosecution” of the federal Clean Water Act to halt DeKalb’s sewage leaks.

The issue involves the consent decree signed by the U.S. Environmental Protection Agency, the Georgia Environmental Protection Division of the Department of Natural Resources and DeKalb County. The purpose of the decree is to compel DeKalb County to stop the discharge of untreated sewage into the waters of the state.

The consent decree has no deadline for DeKalb County to stop the discharges in non-priority areas, most of which are in predominately Black south DeKalb. The EPA is being compelled by a federal lawsuit to explain how the lack of this deadline can be justified under the federal Clean Water Act.

The Clean Water Act requires “diligent prosecution” by the EPA, which means the EPA is diligently pursuing action against the polluter. A lower court has confirmed the consent decree has no deadline. U.S. District Court Judge Steven Grimberg wrote: “the Consent Decree does not establish a timeline for DeKalb to stop spills…”

The EPA’s actions were cited in a brief DeKalb County filed Nov. 10, as the defendant in the Court of Appeals case. The brief states the EPA and EPD worked many years to reach a deal with DeKalb County that would avoid lawsuits. “This is a Consent Decree that EPA and EPD negotiated with DeKalb over many years; that allowed the EPA, EPD, and DeKalb to avoid contentious litigation,” the brief reads.

This raises the issue that the South River Watershed Alliance has called into question the authority of the two organizations to replace a requirement of the Clean Water Act with their judgment. The lawsuit “implicates the judgment and expertise of EPA and EPD and threatens to intrude on their ability to enforce and reach reasonable settlements to bring about compliance with the Clean Water Act…”