By GUY MARTIN
The press has made Jefferson County’s sewer crisis relevant through its favorite lens – public corruption – and will re-write history if we let it. In truth, public corruption is peanuts compared to the elephants in that arena, which, if viewed through a holistic lens, render that crisis more relevant than ever.
By way of background, few love the Cahaba more than me, having grown up along her banks, nor have managed to steer as much development away from her, while at the same time sharing an equal love for the County and her impact on our lives, from the arts to education.
That said, let’s talk history:
1. When the Clean Water Act (CWA) was passed in 1972, Jefferson County spent $300 million upgrading its treatment plants, earning national awards for achieving the goals of the CWA. The upgrades were based on established science that, during heavy rains, which happen only 4% of the time, (a) the relatively small volume of “SSO”–sanitary sewage overflowing or bypassing the treatment and collector systems–pales in comparison to the total volume of rain-swollen rivers and streams, and (b) the SSOs are not only partially treated, but are also so diluted by swollen rivers, they impact the river far less than overland runoff during those rains, from the vast reaches of the Cahaba River basin, spanning thousands of pastures, hog parlors, lawns, factories, highways and parking lots. The CWA frowned on SSOs, but exceptions allowed the common sense of cost-benefit to enter the process, so that even EPA manuals (e.g., EPA-430/9-77-006 March 1977) acknowledged SSOs during heavy rains as a standing practice and accepted design technique.
2. In 1992, however, with a new president and EPA director, came a new rule by an unelected official – of the sort criticized by Justice Kavanagh: sewage systems must treat all sewage, even during heavy rains. Jefferson County stood alone –even though cities fed sewer into its system through millions of feet of the cities’ broken sewer lines–but had experts ready to testify that the science failed to justify the new rule (benefit), and the County could never pay for it (cost). But the EPA was deaf to the common sense of cost-benefit analysis, and threatened millions in fines if the County even litigated. See Cumberland Law Review 40:3 (“Untold Story”). The Commissioners lacked the mettle to square off against such a mighty enforcement power, and it’s hard to disagree with those who claim the County was bullied by the EPA.
3. Other cities have put their feet down when the EPA has called, relying on that prevailing science and cost-benefit economics, managing to escape the hyper expense of total treatment. See Marquette Law Review 87: 224 (“SSO Regulation”).
4. That prevailing science appears to have been further validated: in its Report to Congress 833-R-04-001 (2004), the EPA found “an absence of direct cause-and-effect data relating to occurrence of CSO [overflows from combined storm and sanitary sewer systems] and SSO discharges to specific human health impacts;” that SSO volumes make up less than 1% of discharges into the water bodies; and that the “leading” source of impairment to water quality is pollution transported by precipitation and runoff. Meaning that SSOs are not. Cases such as Iowa League of Cities v. EPA, 711 F.3d 844 ( 8th Cir. 2013) (EPA letter ruling held invalid, thus sanctioning blended flows into river), further support that prevailing science. Therefore, it may be that the billions spent by the County yielded marginal benefit to the Cahaba.
5. Ironically, the EPA approved the County’s system after the billions spent, knowing SSOs would continue–and they have indeed: SSOs remain common, including during heavy rains in February, 2019, which must be factored into the cost-benefit analysis.
These factors radiate points of relevance.
First, we’ve never had empirical closure on the benefit of the four billion dollars. Yet, if that closure confirms what many have told me – professionals, including officials in the sewer department, engineers, and biologists – the Cahaba may be only about 1% cleaner than before the four billion.
Second, ever wondered where the Birmingham Water Works Board pumps water from the Cahaba in relation to where the treated sewage is released–thus where SSOs occur? Have we been blind to damage to the Cahaba, its flora and fauna, more lasting than caused by SSOs? Are we not advanced enough as a society to implement solutions that can solve our water-rationing during droughts and improve property values?
Third, the magnitude of the structures and mechanical systems comprising our sewer system has been compared to multiple Empire State Buildings, vulnerable to earthquakes and things wearing out. If something bad happens down there, our County may lack financing to repair the same. If the EPA made us buy a Lamborghini when we owned a serviceable Chevy, must we repair based on Lamborghini standards?
Finally, Jefferson County’s experience could provide relevance on the national stage. We know zealots burned Monsanto’s corn fields based on an “unscientific, anti-GMO bias.” One confessed, writing that the anti GMO campaign “deprived much of the world of a crucial, life improving technology, and has shown the readiness of many environmentalists to ignore science when it contradicts their prejudices.” See Confessions, WSJ, 6/23/2018. Zealots like those inhabit the EPA. They live in a cocoon, in which nothing in the world outside them has value unless it furthers their objectives. They would relish a brochure reading, “Welcome to Jefferson County–we have no schools, civic center, courthouse, or hospitals, but you can flush our toilets with confidence it won’t harm our river.”
As we face today’s Green New Deal zealots–as well as ways to improve the quality of life in this County–it would be nice to know if EPA zealots bankrupted our county like the GMO ones before them damaged third-world countries.
Stay tuned for further analysis of these issues.
Guy V. Martin, Jr., is a former Adjunct Professor at the University of Alabama School of Law and a retired teacher at the Birmingham School of Law. He has worked extensively on projects such as the Turf Club, downtown hotels (the PickWick complex, Redmont and Tutwiler), Crossplex, and various public ventures, including several with his cousin, the late David Vann, former Mayor of Birmingham, during the Arrington years. He is semi-retired, and serves as a Director of The Foundry Ministries.