BEFORE THE ADMINISTRATOR

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

CITIZENS PETITION FOR WITHDRAWAL OF THE NATIONAL POLLUTANT DISCHARGE

ELIMINATION SYSTEM PROGRAM DELEGATION FROM THE STATE OF MARYLAND

I. INTRODUCTION

The Chesapeake Bay watershed is in crisis. For more than twenty years, the citizens of
Maryland have watched as billions of dollars have been spent on efforts to preserve, protect and
restore the waters ofthe Chesapeake Bay and its tributaries. Despite these intense efforts, the
Chesapeake Bay's prognosis is dire. We are losing our "national treasure.") Our Bay is of
central importance to Maryland's overall environmental quality and economic future. Currently,
a variety of initiatives as well as proposed legislation are under consideration as solutions to the
decline of the Chesapeake Bay.2 However, none of them will succeed in restoring our Bay
without effective and consistent implementation ofthe underlying existing law, the Clean Water
Act ("CWA"). Unfortunately, for years Maryland has failed to adequately implement the CWA.

It is for these reasons that Petitioners, through their undersigned counsel, respectfully
request that the United States Environmental Protection Agency ("EPA") initiate proceedings
under 40 C.F.R. § 123.64(b) to withdraw approval of the State of Maryland's National Pollutant
Discharge Elimination System ("NPDES") program. Petitioners request that EPA formally
respond to this petition in writing, as required by 40 C.F.R. § 123.64(b)(l) and that EPA notify
the State of Maryland that it is not administering the NPDES permit program for discharges into
Maryland waters in accordance with the CWA. 3

Petitioners further request that EPA evaluate the systematic failure ofMaryland to
administer and enforce the NPDES program, and work collaboratively with the Maryland

I Exec. Order No. 13,508,74 Fed. Reg. 23099 (May 15,2009) at 1.

2 Exec. Order No. 13,508, 74 Fed. Reg. 23099 (May IS, 2009); H.R. 3852, III th Congo (2009); S. 1816, 111 th
Congo (2009); Preliminary Notice of Total Maximum Daily Load (TMDL) Development for the Chesapeake Bay, 74
Fed. Reg. 47,792 (Sept. 17,2009); Executive Order 13508 Draft Strategy for Protecting and Restoring the
Chesapeake Bay, Nov. 9, 2009, available at http://executiveorder.chesapeakebay.netJfi1e.axd?fi1e=
2009/11/Chesapeake+Bay+Executive+Order+Draft+Strategy.pdf.
3 See U.S.C. § 1342(c)(3); 40 C.F.R. § 123.64(b)(I).

1
Department of the Environment ("MOE") and Petitioners to develop solutions and remedies for
the problems identified by this petition and those that will be identified by EPA's review. If
MOE fails to demonstrate sufficient ability and authority to carry out the NPDES program, EPA
must withdraw its approval of the Maryland NPDES delegation and assume administration and
4
enforcement of the program.

Citizen petitions to withdraw state delegations are increasingly common due to a

combination of debilitating conditions that occurred between 2000 and 2009. These conditions
created powerful incentives for state governments to get by with only minimal effort to
implement their federally delegated authority. Funding shortfalls, weak and erratic enforcement,
and widespread failure of political will at the national level undermined the resolve of states
already beset by budget problems of their own. During this time period, EPA failed to monitor
the adequacy of state programs aggressively, as Congress clearly intended.

President Barack Obama and EPA Administrator Lisa Jackson have pledged to improve
CWA implementation and enforcement and have announced several initiatives to improve EPA's
performance and leadership in carrying out the mandates contained in the CWA. However,
unless they focus attention on the legally insufficient performance of their state partners, these
extraordinarily important efforts will have significantly less chance of succeeding. Specifically,
new programs and the infusion of dramatically expanded federal resources to accelerate the
restoration of the Chesapeake Bay will be undermined by Maryland's inability to effectively
implement and enforce the CWA at its most basic level- the permit structure.

The crisis in Maryland's CWA programs has developed over many years, involving
elected and appointed officials from both parties. The citizens ofMaryland deserve to have their
tax dollars spent on Bay restoration spent wisely. To ensure that this happens, the weaknesses of
Maryland's NPDES program must be addressed immediately.

A. PETITIONERS

Petitioners are Waterkeepers Chesapeake of Maryland ("Waterkeepers"), a coalition of

twelve independent Waterkeeper programs,S as well as Waterkeeper Alliance.

41d.
S These include the following programs: Anacostia Riverkeeper, Assateague Coastkeeper, Baltimore Harbor
Waterkeeper, Chester Riverkeeper, Choptank Riverkeeper, Lower Susquehanna Riverkeeper, Patuxent Riverkeeper,
Potomac Riverkeeper ("PRK"), Sassafras Riverkeeper, Severn Riverkeeper, South Riverkeeper, WestlRhode
Riverkeeper.
2
 The member programs of Waterkeepers Chesapeake of Maryland work to protect and
restore the Chesapeake and Coastal Bays and their tributaries by sharing resources and
leveraging their individual strengths to expand each Waterkeeper's capacity for on the water,
citizen-based enforcement of environmental laws. They patrol thousands of miles of tributaries
and shorelines in their individual watersheds throughout the Chesapeake and Coastal Bays, and
are at the forefront of advocacy for strong, enforceable permits, citizen activism and, when
necessary, vigorous enforcement of existing laws. These Waterkeepers spearheaded the Get the
Dirt Out program across the Chesapeake Bay watershed to protect the waterways from hannful
construction stormwater runoff. Since beginning the program in 2007, Waterkeepers trained
over two hundred local citizens to monitor construction sites in the Bay watershed to prevent
damage caused by sediment-laden runoff from construction sites and land development.

Waterkeeper Alliance is a non-profit environmental organization that represents the

interests of nearly 200 individual Waterkeepers around the world. The mission of the Alliance is
to protect water resources on both a local and global level. In order to achieve its goal of
swimmable, fishable, and drinkable waterways worldwide, the Alliance relies on the grassroots
advocacy oflocal Waterkeepers, including co-petitioners, Waterkeepers Chesapeake of
Maryland. In addition, the Alliance connects individual Waterkeeper organizations to each other
and supports them by providing expertise in science, law, strategic planning and
communications.

B. LEGAL FRAMEWORK

In 1972, Congress passed amendments to the Federal Water Pollution Control Act, which
is known as the CWA, outlining the basic structure of the NPDES permit program. The NPDES
permit program regulates the discharge of pollutants from point sources into waters ofthe United
States. Point source discharges include surface water runoff, such as stormwater runoff, that is
collected and channeled by human effort. 6 EPA may authorize a state to administer the NPDES
program. Under this authority, a delegated state must implement all aspects ofthe NPDES
program including permitting, enforcement, and inspections. EPA. however, retains the ability
to oversee the state programs. 7

In 1989, EPA and MDE entered into a Memorandum of Agreement ("MOAn) delegating
the CWA NPDES program to the State of Maryland. The MOA establishes key requirements to
ensure that MDE's NPDES program is at least as stringent as EPA's NPDES program. The

640 C.F.R. § 122.2.

733 U.S.C. § 1342(b); 40 C.F.R. Part 123.
3
tenns and conditions of the MOA are requirements that MOE is obligated to implement, and
failure to do so constitutes a basis for de-delegation. s Specifically, under the MOA, MOE agreed
to "create and maintain the legal capability and the resources required to carry out all aspects of
the NPOES program." These aspects include the issuance, modification, reissuance, compliance
monitoring, and enforcement of all permits in the state. Maryland made a commitment to
provide the necessary resources to adequately perfonn each of these tasks. 9

Under the CWA, EPA has the responsibility to withdraw a state's delegation if it fails to
meet the federal requirements or fulfill its responsibilities under the MOA. EPA must de-
delegate a state's program ifthe state fails to issue permits; fails to reissue permits in a timely
manner; issues pennits that do not confonn with federal requirements; fails to inspect facilities as
required by law; fails to effectively enforce the program; fails to seek adequate penalties; or fails
to comply with public participation requirements. 10

c. OVERVIEW OF THE PETITION

As this Petition illustrates, the State of Maryland's NPOES program is failing to fulfill
the federal requirements outlined above. EPA has also failed to exercise adequate oversight of
Maryland's program throughout the years, and this lack of oversight has contributed to the
failures that are adversely impacting the Chesapeake Bay watershed.

1. Permits:

MOE's pennitting procedures fail to fulfill the requirements of the CWA and its 1989
MOA. MOE has not issued permits to facilities that are required by law to have NPOES permits.
For example, abandoned mines are discharging pollutants into waters of the state without ever
being issued NPOES pennits. MOE also fails to reissue pennits in a timely manner as required
by the MOA. EPA set a goal stating that by the year 2004, up-to-date pennits should cover 90%
of the major and minor dischargers in every state. As of September 2007, which is the most
recent data available on EPA's website, Maryland had not yet reached this 90% target. At that
time, current permits covered only 70.1 % of major facilities in the state.

840 C.F.R. § 123.63(a)(4); See 40 C.F.R. § 123.24.

9 Memorandum of Agreement between the Dep't of Envt., State of Maryland and the Reg'J Adm'r, Region III, U.S.
EPA, § II.A(l)(May 28, 1989) [hereinafter "MOA"].
10 4 0 C.F.R. § 123.63.

4
 MDE issues pennits that do not conform to federal requirements. MDE does not evaluate
the effectiveness of permittees' stormwater pollution prevention plans (USWPPPs") before
issuing discharge permits. Industrial, marina, and municipal separate storm sewer system
("MS4") permittees must prepare SWPPPs, which are considered a critical line of defense
against pollutants that are choking the Chesapeake Bay and its tributaries. II Without
consideration of the actual terms and conditions of the SWPPP, it is impossible to know whether
the specific pennittee's plan complies with the regulatory requirements and adequately prevents
damaging stormwater pollution from entering the waters of the state. This is particularly
troubling regarding those facilities that discharge into impaired waters because stormwater
runoff is recognized as one of the most serious issues undermining the health ofthe Bay.12 MDE
also fails to consider impairments and Total Maximum Daily Loads (UTMDLs") for receiving
water bodies before issuing discharge permits. MDE cannot assure that a permit will comply
with water quality standards ("WQS") when it does not integrate applicable impairments and
TMDL waste load allocations ("WLAs") into the permit before coverage is granted. MDE also
violated federal laws and regulations by issuing a state permit that allows a class of Animal
Feeding Operations ("AFOs") to store poultry litter and other livestock manure outdoors and
uncovered for up to 90 days without regard to applicable water quality standards.

2. Inspections and Monitoring:

MDE fails to fulfill its inspection and monitoring responsibilities. The number of
facilities inspected by MDE continues to decrease each year. For example, in 2007 MDE
inspected 89% of facilities with NPDES discharge permits, including those covered under the
General Permit for Stormwater Associated with Construction Activity. However, in 2008 MDE
only inspected 20% of these facilities. 13 MDE fails to periodically inspect minor facilities as
required by federal law. According to the New York Times analysis,14 of the 832 facilities with

II The Chesapeake Bay Program. which includes as partners the state of Maryland and EPA, found that 17 percent
of phosphorus, 11 percent of nitrogen and 9 percent ofsediment loads to the Bay come from stormwater. Chemical
contaminants from runoff can exceed the amount reaching local waterways from industries, federal facilities and
wastewater treatment plants. Chesapeake Bay Program, "Stormwater", available at
http://www.chesapeakebay.netlstormwater.aspx?menuitem=19515 (last visited Dec. I, 2009).
12/d.
13 Statistics for inspections conducted in 2009 are not yet available on MDE's website. Water Mgmt. Admin., MDE,
MDEstat Meeting 7 (Oct. 20, 2008) [hereinafter "October 2008 MDEstat"), available at
http://www.mde.state.md.us/assets/documentIMDEStatlwmaIMDEStat_Meeting_10_20_08.pdf.
14 Find Polluters Near You, N.Y. Times, Sept. 12,2009, available at http://projects.nytimes.comltoxic-
waters/polluters/maryland. [hereinafter "NY Times Data"] The New York Times compiled data organized by state
of facilities regulated by the EPA and state agencies under the CWA's NPDES program. The New York Times
acquired the majority of its data from EPA's Enforcement and Compliance History Online (ECHO) database. Only
5
data on inspections, 335 or 40% have not been inspected since 2005, and 287 ofthose facilities
have at least one self-reported violation.

3. Enforcement:

MDE is required, under its MOA, to "maintain a program of timely and appropriate
enforcement action in accordance with the CWA." A strong enforcement program is central to
an effective CWA NPDES program. "Effective enforcement is based on the theory
of deterrence, which holds that a strong enforcement program deters the regulated community
from violating in the first place, deters specific violators from further violations, and deters the
public from violating other laws."IS MDE does not maintain such a program. According to
MDE's own data, in 2008 it rendered 17% less compliance assistance and imposed 23% fewer
total enforcement actions than in 2007. In addition, according to the data compiled by the New
York Times, out of239 Maryland facilities reporting thirty or more permit violations between
2004 and May 2009, MDE has taken formal enforcement actions against only 27 facilities during
this time period. In addition, MDE fails to follow-up self-reported violations with enforcement
actions and fails to continue to enforce compliance measures it (MDE) previously directed the
permittees to implement.

4. Penalties:

Maryland's statutory ceilings for both civil and criminal penalties are inadequate.
Maryland civil penalties have remained unchanged for over 20 years while federal civil penalty
maximums have been raised numerous times to adjust for inflation. MDE compounds this
statutory inadequacy by failing to impose and/or collect fines in amounts that will effectively
deter violators. According to the New York Times, MOE did not fine a single one of the over
2,400 facilities in Maryland that reported violations between 2004 and May 2009. The penalties
that are available, and those that are generally imposed, do not act as a credible deterrent to
violators.

active facilities listed on ECHO are included in the New York Times data. The New York Times has not corrected
the information received from ECHO. The database includes facilities with individual and general pennits and
major and minor facilities.
IS David R. Hodas, Enforcement ofEnvironmental Law in a Triangular Federal System: Can Three be a Crowd
when Enforcement Authority is Shared by the United States, the States, and their Citizens? 54 Md. L. Rev. 1552,
1604 (I995).

6
 5. Public Participation:

Maryland's program does not allow for adequate public participation in the pennitting or
enforcement processes of the CWA. First, Maryland law does not give citizens an explicit right
of intervention in agency enforcement actions, nor does it allow citizens to comment on any
proposed settlements that might result. Secondly, MDE's inefficient record-keeping methods
hamper the ability of the public to obtain infonnation through Public Infonnation Act ("PIA")
requests, which has the effect of impeding citizen participation in all areas of the CWA.

Cumulatively, the pervasiveness and breadth ofthe failures ofMDE's NPDES delegated
program undennine the goal of protecting and restoring the Chesapeake Bay and its tributaries.

D. SUGGESTED REMEDIES

Maryland's NPDES program is in critical condition. Petitioners recognize that MOE is

responsible for administering a wide range of important programs and they are required to do
this with too few resources. Despite the hard work of MDE employees, the chronic budget
shortfalls cripple critical functions that are needed to ensure that the state NPDES program is
fully and effectively implemented. However, budget shortfalls alone do not explain the failure of
the CWA NPDES program in Maryland and cannot be used as an excuse for all of its
deficiencies. As is illustrated below, corrective actions can be taken to improve the program
notwithstanding the current economic conditions.

Unfortunately, many of the problems identified in this Petition are not new or unheralded.
In 2002, at the request of Senator Brian Frosh, the University of Maryland Environmental Law
Clinic prepared an extensive report ("Frosh Report") 16 on the State's environmental challenges.
The Frosh Report identified deficiencies in staffing that resulted in inadequate inspections and
enforcement. Five years later, the 2007 Maryland Transition Work Group Report on
Environment and Natural Resources ("Transition Report,,)17 reached the same conclusion
regarding staffmg and the resulting lack of inspections and enforcement.

Both the Frosh Report and the Transition Report identified a variety ofstrategies to
address the under-funding of critical MDE programs, including the NPDES program. It is time

16 University of Maryland School of Law Environmental Law Clinic, Keeping Pace: An Evaluation of Maryland's
Most Important Environmental Problems and What We Can Do to Solve Them (2002), available at
http://www.law.urnaryland.edulprograms/environment.
17 Maryland Transition Work Group Report on Environment and Natural Resources, January 31,2007, available at
http://www.govemor.maryland.gov/docurnentsltransitionlEnvironment.pdf [hereinafter "Transition Report"].
7
to reexamine and implement those suggested strategies in order to remedy the current state of
Maryland's NPDES program. IS A specific recommendation included increasing permit and
filing fees. Maryland regulations state that fees are based on the "anticipated cost of monitoring
and regulating the permitted facility" and other costs the State incurs in managing discharges to
waters of the State. 19 Unfortunately, as the following chart vividly illustrates, the State permit
fee structure is wholly inadequate to cover the cost of administering the program. Adjusting for
inflation alone for the time period 1994 to 2009, the fees should be at least 50% higher than
current fees. 2o However, the real cost ofpermitting, monitoring and regulating permitted
facilities is not captured by a simple inflation adjustment. The additional programmatic
responsibilities MDE incurred during these years, the increasing complexity of program
requirements and sophistication ofthe regulated community must also be considered.

18 "Recommendation #1: Work with the General Assembly to: adjust the fee structure and reduce the number of
Special Funds by consolidating similar activities and fund sources; index fees to the Consumer Price Index or
ongoing program costs; avoid the withdrawal of General Fund support; relax legislative caps and funding limits; and
expand the allowable uses of fee revenue." Transition Report Page 8; "Recommendation #50: In cooperation with
the Attorney General, MOE and DNR should audit their enforcement programs, including existing policies for
initiating enforcement actions, assessing civil penalties, prosecuting criminal violations, and determining when
Supplemental Environmental Projects are appropriate. This review should evaluate how enforcement strategies can
best meet regulatory goals and whether statutory caps on the use of penalty funds for further enforcement activities
should be modified." Maryland Transition Work Group Report on Environment and Natural Resources, January 31,
2007, available at http://www.govemor.maryland.gov/documentsitransitionlEnvironment.pdf.
19 See COMAR 26.08.04.09-1(B)(1) and COMAR 26.08.04.11. Note that COMAR 26.08.04.09-1 (8)(1) for general
discharge permit fees states, "Fees are based on the anticipated cost of program activities related to management of
discharge to the waters of this State." (emphasis added) COMAR 26.08.04.11, for discharge permit fees, similarly
says, "(1) The permit fee is based on the anticipated: (a) Cost of monitoring and regulating the permitted facility;
and (b) Needs for program development activities related to management of discharge of poUution to waters of this
State."
20 See inflation calculator at the U.S. Bureau of Labor Statistics, http://www.blsgov/datalinflation_calculator.htm.

8
 The Frosh report, published in December 2002, listed the following pennit fees:

Pennit type Initial feel l Annual fee II Last date fee

raised

Surface Water $50 - $20,000 $100 - $5,000 1993

Discharge Pmt.

Industrial WW or $0 - $20,000lJ $0 - $5,000 1994

SWGenl
Discharge Pmt.

Groundwater $50 - $20,000 $100 to $5,000 1993

Discharge Pmt

Genl Pmt. For $0 - $2,500 NA 1994

Construction
activity / SW

Water and $125 - $2,000 NA 1992

sewerage
construction

None of these fees have increased in the past seven years. 24

Note that COMAR 26.08.04.09-1 (B) (1) for general discharge pennit fees says that,
"Fees are based on the anticipated cost of program activities related to management of discharge
to the waters of this State." (emphasis added)

21 "Initial Fee" refers to the application fee due when an applicant files a Notice of Intent that it intends to obtain or
renew a discharge permit. COMAR 26.08.04.01-1(C). COMAR. 26.08.04.11(A).
22 "Annual Fee" refers to the fee due once each year while the permit is in effect. COMAR. 26.08.04.11(A).
23 MDE's 2008 permit guide states that the application fee for these two categories is $0 to SI ,000. COMAR.
26.08.04.09-1 (C)(l)(a) lists only application fees of$550 (one-time) or S120 (annually during the five years of the
fermit) for stormwater discharges associated with industrial activity.
4 Based on a review ofMDE's 2008 Permit Guide, which is the latest available permit guide on the deparnnent's
web site, and reviews of COMAR. 26.08.04.09-1 and 26.08.04.11; 2008 MDE Guide to Environmental Permits and
Approvals, available at http://www.mde.state.md.uslPermitslbusGuide.asp (last viewed Dec. 2, 2009). Adjusting for
inflation alone between 1992-94 and 2009, fees should be about 50% higher. See inflation calculator at the U.S.
Bureau of Labor Statistics, http://www.bls.gov/data/inflation_calculator.htm.

9
 COMAR 26.08.04.11, for discharge permit fees, similarly says, "(1) The permit fee is
based on the anticipated: (a) Cost of monitoring and regulating the permitted facility; and (b)
Needs for program development activities related to management of discharge of pollution to
waters of this State."

Maryland should charge NPDES fees that recoup its actual costs for permitting and
enforcement. Those who want the benefit of discharging pollutants into our waterways should
cover the cost of such discharges in advance. Taxpayers should not have to bear the financial
burden of cleaning up what could have been prevented. Increased permit fees will bring the
focus of the NPDES permit program back to making those who enjoy the benefit of discharging
pollutants also bear the resulting costs.

Other possible remedies include:

• Institute and apoly mandatory minimum penalties:

These are successful in other states such as New Jersey. Requiring mandatory minimum
penalties will emphasize the importance of these laws, act as an important deterrent and
address the funding shortfalls.

• Update statutory penalties and adopt a chronic violator law:

Increased statutory penalties and a chronic violator law will place increasing
consequences on repeat violators again with the goal of deterring future violations.

• Permit all point sources:

According to the CWA, MOE must issue permits to all point sources discharging into
waters of the state, including its own dosers installed at abandoned mine sites. Additional
funding from EPA may be necessary to ensure that these dosers can meet required
effluent limitations.

• Make permitting and enforcement information available electronically:

Permitting and enforcement information should be made electronically available in a

format that is easily accessible to the public. Although there may be some up-front costs,
the state will save money in the long run since they will not have to search files by hand
every time there is a PIA request. Without more transparency, as the petition describes,
citizens are deprived of their ability to hold polluters accountable themselves, which also
eases the burden on the state.

10
 • Provide additional legal resources:

In order to draft legally sufficient and enforceable pennits, MDE staff must have access
to adequate legal resources to review the pennits for legal sufficiency before they are
issued. In addition, adequate legal resources are needed to tackle the backlog of
enforcement cases. This may require re-allocation ofattorney resources within MDE and
the Attorney General's office.

• Create an Ombudsman office in Maryland:

An Ombudsman office helps citizens navigate government departments and obtain

infonnation more quickly. These offices are successfully implemented in other states and
will help make MOE and the Maryland government more transparent.

• Maximize benefit to state of citizen suits:

When citizens wish to bring enforcement actions against violators, they must first provide
60 day Notice to the violator, MDE and EPA. During that time period, ifMDE files an
enforcement action in state court, there is a high likelihood that the Petitioners will be
prevented from pursuing the lawsuit. This is called "over-filing". Currently, it is MOE's
practice to over-file in every case initiated by citizens. Allowing citizens to bring a
number of cases each year will free up much needed MOE resources and serve as an
effective deterrent to potential violators.

• Re-invigorate EPA oversight:

A failure of the state NPDES program is also a failure of EPA oversight. Even when the
NPDES program is delegated to a state, EPA still has the responsibility to ensure that the
program is implemented effectively. This past summer, EPA Administrator, Lisa
Jackson, publicly announced that EPA was focusing on improving enforcement under the
CWA including strengthening the federal oversight of delegated state programs.
Administrator Jackson stated that "[c]ompliance with the CWA is a shared responsibility
of the EPA and the states... working together with the states, there are positive steps we
can take quickly to improve compliance and enhance water quality.,,25

25 Memorandum from Administrator Jackson: Improving Water Quality Transparency and Effective Enforcement of
CWA Requirements, July 2, 2009, available al
http://www.epa.gov/compliance/datalresultslperformance/cwaljackson-Itr-cwa-enf.htrnl (last viewed Dec. 2, 2009).
11
 II. PETITIONERS' ARGUMENTS

MDE's implementation of the CWA is inadequate and Maryland's authority to

administer the Act should therefore be reevaluated, and, if necessary, revoked. As demonstrated
below, Petitioners fully meet the criteria for withdrawal ofMDE's program set out in 40 C.F.R. §
123.63. First, MDE fails to issue and reissue discharge permits as required by the CWA.
Second, MDE does not diligently inspect and monitor activities subject to regulation. Third,
MDE's enforcement program is not sufficient to achieve an appropriate level of compliance
among regulated entities. Fourth, Maryland law does not allow for sufficiently high penalties,
and MDE often fails to collect penalties within the current statutory range that will effectively
deter future violators. Fifth, Maryland's program does not adequately allow for public
participation in the permitting and enforcement processes of the CWA.

A. PERMITS

Under the terms of the 1989 MOA and the Code of Federal Regulations ("CFR"), MOE
is required to issue NPDES permits to all facilities that require permits as well as reissue expired
permits in a timely manner. All NPDES permits that are issued by the state must comply with
the legal requirements of the CWA, as well as its implementing regulations. In recognition of
the importance of these responsibilities, two of the criteria that the EPA Administrator is directed
to consider when determining whether a state's delegated authority should be revoked are (I)
whether the state has failed to exercise control over activities required to be regulated under Part
123, which includes a state's failure to issue permits, and (2) whether the state has repeatedly
issued permits which do not conform to the legal requirements of Part 123. 26 MDE does not
adequately fulfill these duties because the agency neglects to issue NPDES permits to
dischargers when it is legally required to do so, issues permits that do not meet the legal
standards set out in the CWA, and fails to reissue numerous expired individual and general
discharge permits in a timely manner.

I. Unpermitted Discharges

Under the CWA, all point source discharges require a NPDES permit. 27 Under the MOA,
MDE assumed responsibility to "[a]dminister the NPDES Permit Program to include issuance,
... compliance monitoring, and enforcement of all permits in the State.,,28 The MOA goes on to

26 40 C.F.R. § 123.63.
27
33 U.S.C. §§ 1311, 1342.
28 MOA § II.A(2).
12
 29
state that MDE is obligated to expeditiously draft, circulate, and issue NPDES permits.
According to 40 C.F.R. § 123.63(a)(2)(i), a state's failure to issue permits is a "failure to exercise
control over activities required to be regulated [under Part 123],',30 which is one factor that EPA
should consider when determining whether it should revoke a state's authority to administer its
NPDES program. In spite of its legal obligations, MDE neglects to issue NPDES permits for
equipment that the agency operates in abandoned mines, which acts as a point source, allowing
toxic water to flow into state waters.

MDE, through its Maryland Abandoned Mine Reclamation Program,31 promotes the
reclamation of all abandoned mined areas in Maryland. Under this program, MOE operates
"dosers," or devices to neutralize the acidity of the mine drainage, at numerous abandoned mines
in Western Maryland. While all of these dosers are point sources discharging pollutants into
waters of the state, MOE has not issued NPDES permits for any of them.

At McDonald Mine, for example, MDE operates a doser without a permit. The
McDonald Mine is an abandoned mine that ceased operating prior to the passage of the Surface
Mining Control and Reclamation Act of 1977. Since October 2002, the doser at the McDonald
Mine has added alkalinity to acid mine discharges ("AMO") seeping from the mine, before those
discharges enter a stream that empties into George's Creek, a tributary of the North Branch
Potomac River. Violations of the CWA have been ongoing and continuous since MOE began
operating the McDonald Mine doser in October 2002.

The water quality of Georges Creek improved from 2002 until August 2005, allowing
stocked and native fish and other living resources to return to Georges Creek. 32 However, in
August 2005, internal hydrological changes in McDonald Mine caused a massive increase in the
toxicity, acidity and flow of AMD discharged through the doser. 33 At this time, a massive fish
kill occurred in Georges Creek, concurrent with a plume of orange AMD that was discharged
from the doser. 34 This change in discharge decimated four miles of Georges Creek in less than
one week. 35 Since this event in 2005 the doser has failed to adequately neutralize the AMD's

29/d. § III. See a/so /d. § II.A(3). Listed under Section II ("MOE Responsibilities") is the agency's obligation to
"[p]rocess in a timely manner and propose to issue... all NPOES permits including general permits."
30
40 C.F.R. § 123.63(a)(2)(i).
31 The Division of MOE responsible for the Maryland Abandoned Mine Reclamation Program is the Abandoned
Mines Lands Division.
32 Constance A. Lyons, MDE, The Tale of McOonald Mine 1 (2006).
33/d.
34/d. at 5.
3S /d. at 8.

13
acidity. Moreover, the doser lacks the capability to remove or reduce harmful metals from the
AMD before discharging these toxins into George's Creek.36

The pollutants discharged by the McDonald Mine doser harm the health and safety of
George's Creek, the Potomac River, and, ultimately, the Chesapeake Bay. Acidity hinders trout
and other aquatic life from flourishing in George's Creek. Metals from AMD precipitate out and
settle on the bottom of George's Creek, seriously harming the aquatic ecosystem. The AMD
discharge from the McDonald Mine doser destroys valuable environmental and aquatic resources
and must be subject to a NPDES permit.

Since an NPDES permit will require the doser's discharge to meet technology-based and
water-quality-based standards, obtaining a permit will improve the quality of George's Creek
and the Potomac River watershed.

2. Legally Deficient Permits

EPA must withdraw a state's NPDES program when permits are repeatedly issued that do
not conform to federal legal requirements37 and when the state fails to properly administer its
NPDES program as promised to EPA in its MOA. 38 The MOA requires MDE to "[c]reate and
maintain the legal capability ... to carry out all aspects ofthe NPDES program" and to properly
"[a]dminister the NPDES Permit Program to include issuance ... of all permits in the State.,,39
MOE fails to meet these requirements by failing to consider impaired water bodies and TMDLs
before issuing permits; failing to review Stormwater Pollution Prevention Plans ("SWPPPs")
before issuing permits; including illegal provisions in its Concentrated Animal Feeding
Operations ("CAFOs") permit; and issuing a variance for an industrial discharger that
contravenes permitting requirements.

36/d. at 10. "Although concentrations have decreased consistently from the devastating highs of August 2005, the
~uality of McDonald Mine seep remains extremely acidic and heavily metal laden ... n /d.
3 40 C.F.R. § 123.63{a){2){ii).
38 40 C.F.R. §123.63 (a){4).
39 MOA § II.A{ 1)-(2).

14
 a) TMDL FAIL.URES

Under the CWA, MDE is required to ensure compliance with WQS before issuing
discharge pennits. 4o In order to ensure that WQS are met in receiving waters, MDE must first
consider any applicable impainnents or TMDLs41 and WLAs for those receiving waters. These
impainnents and TMDLs must then be incorporated into specific provisions and limitations of
the pennit before MDE can legally issue the pennit.

The CWA requires that all NPDES pennits be based on technology-based standards to
limit or prevent discharges. 42 Where these technical standards are insufficient to assure that
discharges do not cause or contribute to violations of designated water quality standards, NPDES
pennits must contain more stringent limitations, often referred to as WQBELs (water quality
based effiuent limitations).43

Additionally, the pennitting regulations in 40 C.F.R. § 122.4(i) mandate steps that MDE
must take prior to issuing coverage under a NPDES pennit, to assure that discharges covered by
the pennit do not "cause or contribute to violations of water quality standards.,,44 The regulation
prohibits MDE from issuing pennits in the following circumstances:

(i) To a new source or a new discharger. if the discharge from its construction or
operation will cause or contribute to the violation of water quality standards, the
owner or operator of a new source or new discharger proposing to discharge into a
water segment which does not meet applicable water quality standards or is not
expected to meet those standards even after the application of the effluent limitations
required by sections 301(b)(I)(A) and 301 (b)(I)(B) ofCWA, and for which the State

40 The CWA requires that all NPDES permits contain "any more stringent limitation, including those necessary to
meet water quality standards established pursuant to any State law orregulation." 33 U.S.C. § 1311(b)(I)(C).
According to the CWA and its implementing regulations, "no permit shall be issued when imposition of conditions
cannot ensure compliance with applicable water quality requirements of all affected states." 40 C.F.R. § I22.4(d);
see CWA §301(b)(l)(C), 33 U.S.C. § 1311(b)(I)(C).
41 "A TMDL is a determination of the amount of a pollutant, or property of a pollutant, from point, nonpoint, and
natural background sources, including a margin of safety, that may be discharged to a water quality-limited water
body. Any loading above this capacity risks violating water quality standards:'
EPA, U.S. EPA NPDES Permit Writers' Manual 104 (December 1996), available at
http://www.epa.gov/npdes/pubs/owm0243.pdf[hereinafter "1996 Permit Writers' Manual"].
42 See CWA §§ 402(a)(I). 301(a) & (b), 33 U.S.C. §§ 1342(a), 131 1(a) & (b).
43 See CWA § 302(a). 33 U.S.C. §1312(a); 40 C.F.R. § 122.44(d)(I).
44 See also 1996 Permit Writers' Manual at 87. "Permit writers must consider the impact of every proposed surface
water discharge on the quality of the receiving water. Water quality goals for a water body are defined by State
water quality standards. A permit writer may find. by analyzing the effect of a discharge on the receiving water. that
technology-based permit limits are not sufficiently stringent to meet these water quality standards. In such cases, the
CWA and EPA regulations require development of more stringent, water quality-based effluent limits (WQBEL)
designed to ensure that water quality standards are met." Id.
15
 or interstate agency has perfonned a pollutants load allocation for the pollutant to be
discharged, must demonstrate, before the close of the public comment period, that:

(I) There are sufficient remaining pollutant load allocations to allow for the
discharge; and

(2) The existing dischargers into that segment are subject to compliance schedules
designed to bring the segment into compliance with applicable water quality
standards. The Director may waive the submission of information by the new source
or new discharger required by paragraph (i) of this section if the Director determines
that the Director already has adequate information to evaluate the request. An
explanation of the development of limitations to meet the criteria of this paragraph
(i)(2) is to be included in the fact sheet to the permit under § 124.56(b)(I) of this
chapter.

Thus, MDE must assure compliance with applicable water quality standards before
issuance of pennit coverage to a permit applicant. It is MDE's affinnative and mandatory duty
to undertake the above two-step analysis necessary to identify the need for and nature of
WQBELs, and whether the pennit can even be issued in the first place.45 The Department must
integrate these additional limitations into any permit issued to dischargers. MDE may not
simply, and without sufficient evidence and the necessary analysis, pre-determine that
compliance with the technical standards in the pennit will assure compliance with WQS. While
the permittee may, in its application materials, propose measures designed to comply with local
WQS and TMDL WLAs, MDE retains the ultimate obligation of ensuring that these measures
are adequate and meet the legal standard created by the CWA.

Similarly, MDE is bound by Maryland statutes and regulations which require the
Department to issue NPDES permits only upon a determination that "[t]he discharge or proposed
discharge specified in the application is or will be in compliance with all applicable requirements
of: (b) Surface and ground water quality standards.,,46

As an integral step in determining what permit provisions are necessary to comply with
WQS, MDE must examine any impairments to the receiving waters of the proposed discharges.
Pursuant to 40 C.F.R. § I 22.4(i), MDE cannot, through an individual or general permit, authorize
discharges ofpollutants into waters impaired by those same pollutants unless (1) there is a

4S See Friends ofPinto Creek v. U.S. Environmental Protection Agency, 2007 U.S. App. LEXIS 23251,65 ERC
(BNA) 1289 (9th Cir. 2007) (liThe plain language of the first sentence of the regulation is very clear that no permit
may be issued to a new discharger if the discharge will contribute to the violation of water quality standards. This
corresponds to the stated objectives of the CWA 'to restore and maintain the chemical, physical, and biological
integrity of the nation's waters."').
46 COMAR 26.08.04.02(A)(I)(b).

16
TMDL for the pollutant; (2) the TMDL has a WLA for the applicable discharger; (3) all other
point sources that discharge similar pollutants of concern are subject to compliance schedules;
and (4) there is some mechanism to ensure that permitted discharges will not exceed the WLA. 47

Furthermore, under section 303 ofthe CWA, which governs WQS and TMOLs, MOE
must identify waters which are impaired, but not necessarily listed as a 303 ranked priority.48
Not only must permits discharging to these waters require more stringent standards where
necessary to protect water quality, but state agencies are prohibited from issuing NPDES permits
for discharges to these watersheds except in certain limited circumstances.

In all cases, but particularly where dischargers are located in impaired watersheds or
those which have an approved TMDL, MOE must first conduct a reasonable potential analysis to
determine whether an applicant's stormwater discharges would cause, have reasonable potential
to cause, or contribute to violation of any applicable water quality standard. 49 MDE must deny
permit coverage to any permit applicant who fails to meet this test.

Unfortunately, MOE fails to ensure compliance with WQS prior to issuing permits. It
repeatedly fails to conduct the analyses necessary to determine whether WQBELs are required,
whether discharges will meet applicable TMOL WLAs, or whether impaired receiving waters
prevent permit issuance altogether.

47 See 40 C.F.R. §§ 130.2(h), 122.44(d)(I)(vii)(B).

48
33 U.S.C. § 1313(d)(l)(D)(3).
49 The CWA's implementing regulations require that NPDES permits "control all pollutants or pollutant parameters
(either conventional, nonconventional, or toxic pollutants) which the Director determines are or may be discharged
at a level which will cause, have the reasonable potential to cause, or contribute to an excursion above any State
water quality standard, including State narrative criteria for water quality." 40 C.F.R. § 122.44(d)(I)(i).
17
 This problem is compounded by the fact that there are over 540 impaired water bodies
throughout the State of Maryland. 5o Of those impaired waters t only 110 currently have an
approved TMOL. 51 Therefore over 400 water bodies in Maryland are impaired for pollutants
and MOE has no idea how much ofthose pollutants can be discharged into the water bodies
without exceeding WQS. Thus in many cases in order to ensure compliance with WQS, MOE
t

cannot safely permit any discharges of those pollutants. At a minimum t MDE must examine any
applicable impairments and TMOL WLAs, before issuing a discharge permit.

MOE not only fails to examine the specific impairments of receiving waters before
issuing discharge permits t but it instead relies on the permittee to do so after the permit is issued.
Instead of integrating specific requirements into the permit that ensure compliance with WQS
and TMOLs, MOE simply allows the permittee to determine these requirements for themselves
after permit coverage begins. However, according to the federal regulations outlined above t
MOE cannot transfer its responsibility to ensure compliance with WQS and TMOLs to the
permittee.

Before permit coverage begins, MOE is obligated to specify requirements for the
permittee that ensure compliance with WQS. If MOE is not aware of the specific actions the
permittee will take to ensure compliance with WQS and WLAs, then it cannot ensure
compliance before issuance of the permit. This obligation is repeatedly ignored by MOE, and
the following examples illustrate this point.

so This number includes 214 impaired waters in categories 4a and 4b, and 329 impaired waters in category 5 of the
2008 Integrated 303(d) List. Category 4a includes surface waters that are still impaired but have a TMDL that has
been completed or submitted to EPA. Category 4b includes surface waters impaired for one or more water quality
standards but not needing a TMDL because other pollution control requirements are reasonably expected to result in
the attainment of water quality standards 00 the near future. Category 5 includes waterbodies that may require a
TMDL. MDE, The 2008 Integrated Report of Surface Water Quality in Maryland (2008), available at
http://www.mde.state.md.us/assets/documeot/2008_IR]arts_A_thru_E%281%29.pdf[hereinafter "2008 Integrated
Report"].
SI After several environmental groups sued EPA, EPA Region III and MDE entered into a Memorandum of
Understanding (MOU) requiring MDE to establish TMDLs for all impaired water bodies by 2008. In 2002,
Maryland had committed to establish 371 TMDLs. MDE's web site currently lists 110 approved TMDLs, or 30
percent of that commitment. Maryland's 2008 Integrated Report of Surface Water Quality indicates that there are
stil1393 water bodies that state officials believe may require a TMDL. 2008 Integrated Report at 9.
18
 I. CAPO Permit:

On December 1,2009, MDE issued its General Permit for Combined Animal Feeding
Operations ("CAPOS").52 This permit applies to hundreds of CAFOs across the state of
Maryland. 53 Unfortunately the terms of the permit fail to consider the applicable impairments
and TMDLs in potential receiving waters, and thereby fail to ensure compliance with water
quality standards.

The permit simply makes the conclusory statement that its terms are consistent with
existing TMDLs for impaired water bodies, without actually examining those TMDLs or
incorporating specific emuent limitations that reflect applicable WLAs. 54 The permit assumes
compliance with WLAs at the time that coverage is granted to the CAPO.

The CAFO general permit also fails to provide meaningful monitoring requirements and
water quality based operational limitations. Specifically, the pennit fails to monitor the
groundwater in the area of the pennitted facilities. 55 Approximately 900,000 Marylanders obtain
their drinking water from private wells that are especially vulnerable to pollution from CAPOS. 56
In addition, underground water also feeds directly into the Chesapeake Bay. Yet, nothing in the
permit requires CAPO or MAPO owners to monitor how severely they are contaminating
groundwater or to take steps to minimize such contamination. The failure to monitor
groundwater also creates the potential to undermine Maryland's WQS and therefore violates the

S2 Land Mgmt. Admin., MDE, General Discharge Permit for Animal Feeding Operations (No. MDGOI) (December
I, 2009) [hereinafter "CAFO Permit"]; Animal feeding operations or "AFOs" are facilities where animals are
confined and fed for a total of 45 days or more in any 12 month period and crops are not sustained in the normal
growing season over any portion of the facility. 40 C.F.R. § 122.23(b)(I); Waterkeeper Alliance, Assateague
Coastkeeper, Lower Susquehanna Riverkeeper and C&B Schelts are currently appealing the final permit to the
Circuit Court for Baltimore City. Despite this pending appeal, MOE announced that the final permit was issued on
December 1,2009.
S3 Stephanie Jordan-Schwind, MDE Slated to Start Issuing MAFO. CAFO Permits Dec. J. Americanfarm.com, Oct.
20,2009.
S4 § K, pg. 23 of the CAFO Permit reads "Total Maximum Daily Loads. Permit requirements are consistent with
existing Total Maximum Daily Loads (TMDLs) for impaired water bodies."
ss Discharges into groundwater that have a direct hydrogeological connection to waters of the United States are
within the scope of the CWA. See. e.g.• Hernandez v. Esso Standard Oil Co., 599 F.Supp.2d 175, 181 (D. Puerto
Rico 2009).
56 Betty J. Dabney, Technical and Regulatory Servs. Admin., MDE, Improved Reporting and Access to Domestic
Well Water Quality Data Through Web-Based Automation 10, available at
http://www.mde.state.md.uslassets/documentlwatersupplylBettyDabney.pdf.
19
CWA's proscription that NPDES pennits may only be issued "where such permits ensure that
every discharge of pollutants will comply with all applicable effluent limitations and standards. 57

The general permit also presumes that facilities' nutrient management plans or
comprehensive nutrient management plans comply with permit requirements without MDE
actually reviewing them first. 58 The permit requires that nutrient management plans are created
by a nutrient management planner certified by the Maryland Department of Agriculture
("MDA") and meet the requirements of Maryland regulations. 59 However MDE never reviews
the plans to ensure that they do in fact meet these requirements. Essentially MDE is operating
upon the good faith belief that nutrient management planners certified by MDA always design
nutrient management plans and comprehensive nutrient management plans that comply with all
applicable effluent limitations, water quality standards and other federal and Maryland
regulations. By relying on these assumptions, MDE is not fulfilling the CWA's mandate that it
assure compliance with all applicable water quality standards before issuing a permit. 60

Similarly, the permit fails to address waters impaired for agriculture-related pollutants for
which no TMDL has been issued. There is no indication in the permit that MDE conducted the
required analysis to determine whether more stringent limitations are necessary for discharges to
these impaired waters. Furthermore, in many cases MDE may not grant coverage at all to
CAPOs that discharge to watersheds impaired by excessive agriculture-related pollutants. For
these watersheds, MDE must first complete a TMDL with WLAs for agricultural stormwater,
and incorporate those WLAs into the terms of the pennit. Until then, it may not grant coverage
to new CAPOs in these watersheds. 61

57 33 U.S.C. § 1342(b)(I) (requiring state NPDES programs insure compliance with emuent limitations and water
~uality related effluent limitations).
A CAFO is required to compile a comprehensive nutrient management plan when applying for coverage under the
general permit. A comprehensive nutrient management plan "addresses all aspects of the Animal Feeding Operation
including animal waste handling, nutrient management, and conservation practices." CAFO Permit at 4. A MAFO
is required to compile a nutrient management plan and conservation plan when applying for coverage under the
general permit. The plans shall "together take into account all animal manure or waste nutrients associated with
animal production" and "ensure that appropriate manure management measures are used to store, stockpile and
handle animal manure associated with animal production." CAFO Permit at 11.
59 CAFO Permit at Part II.R. " 'Nutrient Management Plan (NMP)' means a plan written by a nutrient
management planner certified by the Maryland Department of Agriculture (MDA) that meets all requirements of
COMAR 15.20.07 and 15.20.08." Id.
60 See 33 U.S.c. § 1342(b)(1) (requiring state NPDES programs insure compliance with emuent limitations and
water quality related emuent limitations).
61 See Friends a/the Wild Swan. Inc. v. U.S. EPA, 130 F. Supp. 2d 1204,1207 (D. Mont. 2000). affd in relevant
part. Friends a/the Wild Swan v. U.s. EPA, 74 Fed. App'x. 718,723 (9th Cir. 2003).
20
 ll. Maryland Airport Permit:

In August of 2009, MDE issued a draft individual permit authorizing Bauserman Service,
Inc. to discharge construction stormwater from the Maryland Airport runway expansion project
in Charles County. This construction project will take place on 95.7 acres of property, and
stormwater runoff will discharge directly into the Mattawoman Creek, a tributary of the Potomac
River.

The Mattawoman Creek is one of America's most endangered rivers. 62 It flows 27 miles
from the extensively forested Charles and Prince George's Counties, before joining the Potomac
River south of Washington, DC. The Creek is listed as a 303(d) waterway as impaired for
phosphorous and nitrogen, without any approved TMDLs.

Unfortunately the draft permit does not conform to the requirements of the CWA or its
implementing regulations. It fails to ensure that discharges will not exceed WQS, and thereby
threatens both the health of the vulnerable Mattawoman Creek, and the livelihoods of those who
depend upon it for employment.

The terms of the draft permit establish that MDE did not conduct the required analysis of
receiving water impairments and WQS. Section V of the draft permit states that "[i]fthe
discharge covered by this permit enters a water with an established or approved TMDL, the
permittee must implement measures to ensure that the discharge of pollutants from the site is
consistent with the assumptions and meets the requirements of the approved TMDL, including
any specific WLA that has been established that would apply to the discharge."63 However this
provision is wholly insufficient and does not release MDE of its legal obligations. If anything
the generality of this provision, and the fact that the Mattawoman Creek does not have any
approved TMDLs, indicate that MDE did not even review the 303(d) list for specific
impairments to the receiving water at issue.

In drafting this permit, MDE failed to mandate specific measures that the permittee must
take to ensure compliance with WQS, including any WQBELs that may be necessary to maintain
these WQS. Instead MDE provided a generic statement that the permittee is responsible for

62American Rivers, America's Most Endangered Rivers of2009: #4 Mattawoman Creek, American Rivers,
available at http://www.americanrivers.org/assetslpdfslmer-2009/mattawoman-creek.pdf; Chesapeake Bay Program.
Mattawoman Creek Named One ofAmerica 's Most Endangered Rivers, April 2009, available at
http://www.chesapeakebay.net/news_mattawoman09.aspx?menuitem=35408; Mattawoman Watershed Society, Inc.
Mattawoman Creek and its Watershed: Fact Sheet, available at http://mattawomanwatershedsociety.org/fact2.aspx.
63 Water Mgmt. Admin., MOE, Individual Permit for Stormwater Associated with Industrial Activity, Md. Airport
(No. MD0910346) Part V. Consistency with Total Maximum Daily Loads (2009).
21
implementing measures necessary to ensure compliance with TMDLs, after permit coverage
begins. Not only does Mattawoman Creek lack a TMDL for nutrients, but it is impossible for
MOE to ensure compliance with WQS without even knowing what these measures will be.

111. Montgomery County MS4 Permit:

In September of2008, MDE issued a draft individual permit for Montgomery County's
Municipal Separate Storm Sewer System ("MS4,,).64 Stormwater from this MS4 discharges
directly into various impaired water bodies throughout Montgomery County.

Unfortunately the terms of the draft permit transfer responsibility to the permittee for
determining how it will comply with WQS, TMDLs and WLAs after permit coverage begins.
MDE must instead include mandatory language that ensures compliance before issuance of the
permit. In the permit, MOE requires Montgomery County to develop its own TMOL
implementation plans, and gives the County one year from the permit issuance to submit them to
MOE for review and approval. The permit gives the County the discretion to develop its own
compliance benclunarks and monitoring requirements. To ensure that WQS are met, MOE
should have determined these requirements, and provided the County with actual deadlines,
before issuing the permit.

It is abundantly clear that MOE has the authority to issue MS4 permits that require
compliance with water quality standards. 65 EPA's Environmental Appeals Board rejected
portions of EPA Region Ill's MS4 Permit for the District of Columbia because the permit's
terms failed to ensure that urban stormwater discharges would comply with water quality
standards. 66

Therefore, MDE cannot issue this permit until it demonstrates that all permit conditions,
including requirements for Best Management Practices ("BMPs"), monitoring, and reporting,
will ensure compliance with the WQS of receiving water bodies. MDE must replace goal-
oriented statements in the permit with compulsory language and deadlines in order to ensure
compliance with WQS. For example, the Watershed Assessment section of the permit currently
contains no deadline by which the County must assess and develop restoration plans for all of its

64 Waterkeeper Alliance, Potomac Riverkeeper, Anacostia Riverkeeper, Friends of the Earth, Pat Munoz and Mac
Thornton are currently appealing the permit to the Circuit Court of Baltimore City. The final permit has not been
issued due to the pending appeal.
6S DefendersofWi/dlifev. Browner, 191 F.3d 1159, 1166 (9th Cir. 1999).
66 In re Government ofthe District a/Columbia Municipal Separate Storm Sewer System, 10 E.A.D. 323, 339-340
(E.PA 2002).
22
watersheds. Therefore the assessment and plan development phase alone could go on for
decades.

In addition, the Watershed Restoration and Assessment of Controls sections of the pennit
fail to ensure compliance with WQS. In the pennit, watershed restoration is measured by
"restoration of impervious surfaces," but the pennit fails to define what this entails. In order for
BMPs to "restore" impervious surfaces in furtherance ofWQS compliance, these BMPs need to
be specific and explicit, and the target objectives of restoration need to be enumerated.
Additionally, before requiring any BMPs, MDE needs to make the requisite detennination that
those BMPs will ensure compliance with WQS. 67

Monitoring requirements are also conditions of the pennit that must ensure compliance
with WQS. "Clearly, unless there is some method for measuring compliance, there is no way to
ensure compliance:,68 Without measurable progress requirements for monitoring results, there is
no way to ensure that the pennit monitoring conditions will ultimately lead to compliance with
WQS.

According to the EPA NPDES Pennit Writers' Guide, "[t]he goal of the permit writer is
to derive permit limits that are enforceable, adequately account for effluent variability, consider
available receiving water dilution, protect against acute and chronic impacts, account for
compliance monitoring sampling frequency, and assure attainment of the WLA and water quality
standards. ,,69 MDE fails to meet these requirements by issuing pennits that do not incorporate
applicable WQS, impairments, and TMDLs for receiving water bodies.

b) ADDITIONAL CAFO PERMITTING FAILURES

Not only does MDE's CAFO pennit violate the CWA by failing to ensure compliance
with WQS and WLAs as previously discussed, but the CAFO permit also violates federal laws
and the MOA by allowing a class of Animal Feeding Operations ("AFOs") 70 to store poultry
litter and other livestock manure for up to 90 days without regard to applicable WQS. MDE's

671d. at 339-340.
68 Champion lnt'/ Corp. v. U.S. E.P.A., 648 F.Supp. 1390, 1395 (W.D.N.C. 1986), vacated on other grounds, 850
F.2d 182 (4th Cit. 1988) (upholding EPA's objection to a state issued NPDES pennit that failed to include adequate
monitoring provisions, among other issues).
69 1996 Permit Writers' Manual at 111.
70 Animal feeding operations or "AFOs" are facilities where animals are confined and fed for a total of 45 days or
more in any 12 month period and crops are not sustained in the normal growing season over any portion of the
facility. 40 C.F.R. § 122.23(b)(I).
23
issuance of inadequate CAFO permits, in violation of the MOA, fits the criteria for de-delegation
71
ora State's NPDES program under federal regulations.

In December 2009, MDE issued a final general permit that created a special class of
AFOs, called Maryland Animal Feeding Operations or "MAFOs." By exempting these AFOs
from permit coverage, the permit fails to comply with the CWA's goal of eliminating
unpermitted point source discharges. 72 EPA's CAFO NPDES permit writers' guide states that,

operations that remove waste from confinement areas and stack or pile it in areas
exposed to rainfall are considered to have a liquid manure handling system. This
would include those operations that remove liner from the confmement area and
stockpile or store it in remote locations. Permining authorities may authorize some
limited period of temporary storage of liner of no more than 15 days that would not
result in the facility meeting the definition of a liquid manure handling system (e.g.,
where this limited time is needed to allow for contract hauling arrangements). Once
the liner is stockpiled beyond this temporary period the uncovered stockpile would
constitute a liquid manure handling system and the lower threshold for chickens at
30,000 ... would be applicable to these operations. 73

Therefore, an AFO with manure left uncovered for over 15 days becomes a CAFO at
30,000 chickens rather than 125,000 and therefore requires a NDPES permit. 74 In addition, a
presumption should exist that long-term uncovered storage of manure will result in runoff, which
means these AFOs "propose to discharge," also requiring them to obtain a NPDES permit.

Properly issuing CAFO permits is critical to the Chesapeake Bay's health. According to
the Chesapeake Bay Program animal manure and poultry litter contribute about half of the Bay
75
watershed's agricultural nutrient load. MDE's final CAFO permit, issued in violation of federal
law and regulation and the MOA, fits the criteria for the de-delegation of a State's NPDES
permit program. 76

71
40 C.F.R. § 123.63(a)(2)(ii) and 40 C.F.R. § 123.63(a)(4).
72 See 33 U.S.C. § 1251(a)(I).
73 EPA, NPDES Permit Writers' Guidance Manual and Example NPDES Pennit for Concentrated Animal Feeding
9perations 3.2.3 (December 31,2003), available at http://cfpub.epa.gov/npdeslafo/info.cfm#guide_docs.
74 40 C.F.R. §122.23(b)(4)(ix).
75 Agriculture - Bay Pressures - Chesapeake Bay Program,
http://www.chesapeakebay.net/landuse_agriculture.aspx?menuitem=19551 (last visited on Dec. 3, 2009).
76
40 C.F.R. § 123.63(a)(2)(ii) and 40 CFR § 123.63(a)(4).
24
 c) STORMWATER POLLUTION PREVENTION PLAN FAILURES

MDE violates federal regulations when it fails to consider whether stonnwater pollution
prevention plans ("SWPPPs") proposed by regulated entities adequately control stormwater
pollution before issuing permits to those entities. Scientific research repeatedly identifies
77
stonnwater pollution as a major problem affecting the Chesapeake Bay and its tributaries. Not
only is stonnwater the "fastest growing fonn of Bay pollution,,,7s but it is also the only major
79
source ofpollution in the Chesapeake Bay watershed that is actually increasing.

When MDE issues general and individual permits for industrial, marina, and MS4
stonnwater discharges that include requirements for SWPPPs, they must consider the efficacy of
the stormwater mitigation measures proposed by the pennittee before issuing the permit.
COMAR 26.08.04.01 states that MDE "shall issue ... NPDES pennits in accordance with ... the
regulatory requirements of the National Pollutant Discharge Elimination System (NPDES),
established under the Federal [Clean Water] Act." Under requirements for NPDES permitting,
all state programs must have the legal authority to implement stonnwater discharge NPDES
regulations 80 and "shall not begin the processing of a permit until the applicant has fully
complied with the application requirements for that pennit."sl However, MDE routinely issues
permits without even reviewing the proposed SWPPPs. As discussed previously on pages 15-18
of this petition, it is impossible for MDE to ensure compliance with WQS and WLAs ifthey
don't know the basic details of the permittees' SWPPPs before issuing permit coverage.

MDE has the regulatory authority to deny issuance of pennits without adequate
stonnwater mitigation measures. Federal regulations say, "[i]f an applicant fails or refuses to
correct deficiencies in the application, the permit may be denied and appropriate enforcement
actions may be taken."S2 EPA, in its Pennit Writers' Manual, stresses the importance of
incorporating effective stonnwater plans into pennits:

n See Tom Schueler, Bay-Wide Stonnwater Action Strategy: Recommendations for Moving Fonvard in the
Chesapeake Bay 6-7, available at http://www.cbesapeakestormwater.net/storage/admin-files/csn-source-
documentsIFinal%20Baywide%20StormwaterOIo20Action%20Strategy.pdf; See also Tom Zolper, Worsening
Stonnwater Requires Tougher State Regulations. CBF Says, available at bttp://www.cbf.orgIPage.aspx?pid=1268;
See also Chuck Epes, Cleaning Up Stonnwater: The Next Frontier, available at
http://www.cbf.orglPage.aspx?pid=1304.
78 Transition Report at 13.
th
79 Chesapeake Clean Water and Ecosystem Restoration Act of 2009, S. 1816, Ill Congo § 2(12) (2009).
80
40 C.F.R. § I23.25(a)(9).
81
40 C.F.R. § 124.3(a)(2).
82
40 C.F.R. § 124.3(d).
25
 the primary permit condition used to address discharges of pollutants in a facilities
stormwater is a pollution prevention plan. The development and implementation of a
site-specific stormwater pollution prevention plan is considered to be the most
important requirement of the EPA and State issued stormwater general permits. Site-
specific stormwater pollution prevention plans allow permittees to develop and
implement "best management practices", whether structural or non-structural, that
are best suited for controlling stormwater discharges from their industrial facility.83

Without considering the effectiveness of the SWPPP before issuing the pennit, MDE is
effectively issuing the pennit without reviewing all of its tenns, contravening 40 C.F.R.
124.3(a)(2). A NPDES pennit issued in this manner cannot adequately prevent damage from
stonnwater pollution.

MDE does not review SWPPPs prior to issuing pennits because MDE often does not
even require the pennittee to develop the plan until after the pennit is issued.

For example, in February 2002, MOE issued an individual NPDES permit to Velsicol
Chemical Corporation, the previous name of the plasticizer-manufacturing facility now operated
by Genovique. 84 In the pennit, MDE required the company to "develop a stonnwater pollution
prevention plan for each area ofthe facility with point source discharges of stonnwater
associated with general activity.,,85 The SWPPP was to incorporate sound engineering practices
to identify potential sources of stonnwater runoff and to reduce such runoff. Despite these
specific SWPPP requirements, MDE gave them one year from the date the pennit was issued to
develop the SWPPP. Furthennore, the SWPPP did not become effective until a year and a half
after the issuance ofthe pennit. Obviously, MOE did not review the adequacy of the facility's
SWPPP prior to issuing the pennit and thus abdicated its pennitting responsibilities.

In 2009, MDE issued a new individual pennit to the Mirant Morgantown Generating
Station in Morgantown, Charles County, Maryland. Although Mirant was required to develop a
SWPPP by the effective date of the pennit,86 MDE did not review the SWPPP prior to issuance
ofthe pennit. In fact, provision X.I.c. of the Mirant pennit states that "[i]fthe plan is reviewed
by the Department, the Department will notify the pennittee.',87 Without a thorough and rigorous
evaluation of the SWPPP in conjunction with the other components ofthe pennit, MOE and the
public cannot be assured of the pennit's effectiveness. Likewise, without rigorous evaluation,

83 1996 Permit Writers' Manual at ISO.

84 In October 2008 Velsicol Chemical Corporation changed its name to Genovique Specialties Corporation.
(http://www.velsicol.comlNews.aspx) The facility will be called Genovique throughout this petition.
8S Water Mgmt. Admin., MDE, NPDES Permit for Velsicol Chemical Corp. (No. MD0000345) § I(P)(I) (2002).
86 Water Mgmt. Admin., MDE, NPDES Permit for Mirant Mid-Atlantic, LLC (No. MD0002674) § I(X)(l) (2009).
87 Id. § I(X)( 1)(c).

26
MOE cannot be sure that the Facility has adequate spill controls in place to contain and respond
to leaks or spills, whether the Facility's preventive maintenance program and good housekeeping
practices are sufficient, nor whether the terms of the SWPPP will ensure compliance with WQS.

Given this practice, it is not surprising that MDE, and in at least one case EPA, have
turned up numerous SWPPP violations at facilities permitted by MDE.

For example, on July 10, 2009 EPA ordered Anne Arundel County to come into
compliance with its general permit for Stormwater Associated with Industrial Activity and its
MS4 Permit within 30 days. EPA found the SWPPPs on file at three of Anne Arundel County's
facilities did not meet the requirements of the permit. EPA found that "by failing to ensure the
proper development and implementation of pollution plans, including maintenance of stormwater
controls and applying best management practices at Sites 1, 2, and 3, Respondent has violated
Part III, Section E(4) of its MS4 Permit, and Section 301 of the Act, 33 U.S.C. § 1311.,,88

Another example is the Lafarge Landover Blacktop plant in Capitol Heights, Maryland
that recycles asphalt. The Lafarge Blacktop Plant is covered under the General Discharge Permit
for Stormwater Associated with Industrial Activity, a permit that requires a Swppp. 89 It
discharges into a tributary of Cabin Branch Creek that drains into the Anacostia River. The
Anacostia River is impaired for nutrients, sediments, toxics (pCBs in fish tissue), bacteria,
trash/debris and fecal coliform. 90 In 2002 and 2003, after LaFarge's coverage under the
discharge permit already began, MOE found that part of LaFarge's SWPPP could not be
produced, and the remaining part did not conform to the requirements of the permit. 91 On June
25,2009, in response to a public complaint, MDE again inspected the Lafarge Landover
Blacktop Plant. The inspection revealed that the SWPPP was both inadequate as well as not
implemented as drafted. The site lacked planned diversion ditches and an oiVwaste separator,
the site map in the SWPPP did not contain all of the information required in the NPDES permit,
and the facility did not have required records of employee training and inspections. In addition,

88 In the Mauer of: Anne Arundel County, Proceeding Under Section 309(a) of the CWA, 33 U.S.c. § 1319(a).
Docket No. CWA·03-2009-016SDN. July 10,2009. Pg. 4.
89 Water Mgmt. Admin., MDE, General Discharge Pennit for Stormwater Associated with Industrial Activities (No.
MOR) (2002).
90 2008 Integrated Report at Part F4 23-24.
91 "Only a portion of the Pollution prevention (P2) plan could be found on site - Advised that the up to date P2 plan
be obtained, reviewed and kept on site" 03/28/2002 Inspection Report for Permit 00-MM-9825 "LaFarge
Branchville Blacktop Plant". "The [pollution prevention] plan needs to be brought up to date to reflect the current
operations for the facility...."06/17/2003 Inspection Report for Pennit 00-MM-9825 "LaFarge Branchville Blacktop
Plant".
27
MDE discovered that materials had been placed in areas likely to pollute and liquid asphalt
remover was used in areas likely to result in discharges into storm drains.

At Aggregate and Dirt Solutions (uADS"), a concrete and wood waste recycling plant
also in Capitol Heights, Maryland, MDE again failed to check the SWPPP before issuing the
permit. Discharges from ADS also drain into the tributary of Cabin Branch Creek that drains
into the Anacostia River. Its coverage under the current General Discharge Permit for
Stormwater Associated with Industrial Activities began on April 24, 2003. 92 MDE conducted a
number of site inspections between May 2007 and August 2009,93 many in response to repeated
and numerous public complaints that the facility was discharging pollutant-laden stormwater into
Cabin Branch. The inspection that took place on May 25, 2007, over four years after permit
coverage began, revealed that the facility was operating without a SWPPP. MDE again
inspected the facility in December 2007 and ADS could not produce the SWPPP. Finally in
January 2008, MDE found the facility in compliance with a SWPPP on site. However, follow-up
inspections in 2009 revealed many violations, including that the SWPPP did not conform to
NPDES permitting requirements. 94 MDE conducted a final inspection in September 2009 and
found the facility in compliance. IfMDE had attempted to review the SWPPP for adequacy
before issuing permit coverage to the facility back in 2003, they would have realized that a
SWPPP did not exist, and could have prevented over four years of stormwater discharges
unregulated by pollution prevention measures. Furthermore, MDE has not imposed any
penalties on the facility despite these years of noncompliance.

92 MDE letter of acceptance of ADS Notice of Intent to be covered under Geneml Discharge Permit for Stormwater
Associated with Industrial Activities, dated April 24, 2003. Coverage under this permit extended through November
30,2007, at which time coverage was administmtively continued by MOE. At discussed later, this permit remains
expired as of the date of this petition.
93 According to records provided by MDE in response to PIA requests, MOE inspected this site on May 25, 2007
and found that the facility had no SWPPP. "As long as the plan has not been dmfted and is not maintained on site,
the site remains in noncompliance of Title 9, Environment Article, annotated Code of Maryland." 05/25/2007
Inspection Report for Permit 02-SW-I725 "Aggregate and Dirt Solutions". On December 20,2007 MOE inspected
the facility and the SWPPP could not be produced. Therefore MDE found the site in non-compliance. 12/20/2007
Inspection Report for Permit 02-SW-1725 "Aggregate and Dirt Solutions". A MOE inspection on January 31,2008
found the site in compliance, however follow-up inspections on June 16,2009 and July 1, 2009 found the facility to
be in non-compliance. Both 2009 inspection reports noted that the SWPPPs did not conform to NPDES permit
requirements. 1/3112007 Inspection Report for Permit 02-SW-1725 "Aggregate and Dirt Solutions". 06/16/2009
Inspection Report for Pennit 02-SW-1725 "Aggregate and Dirt Solutions". 07/0112009 Inspection Report for Permit
02-SW-I725 "Aggregate and Dirt Solutions".
94 Other violations included a SWPPP without containment training requirements; portions of the silt fence missing
or in need of repair; petrolewn spills; chemicals stored in exposed areas; no documentation of the stormwater pond's
adequacy for a site of that size; a sprinkler system used to control dust resulted in discharges into a storm dmin; and
no systems were in place to prevent stormwater from leaving the site and reaching the storm drain.
28
 Mitigating stonnwater pollution through effective SWPPPs is crucial to the health of the
Bay. As stonnwater runs over roads, parking lots, rooftops, and compacted land, it washes
chemical and microbial contaminants into the watershed. Additionally, stonnwater discharge
poses a physical hazard to aquatic habitats and stream function, owing to the increase in water
velocity and volume. The Chesapeake Bay Program, which includes as partners the state of
Maryland and EPA, found that 17 percent of phosphorus, 11 percent of nitrogen and 9 percent of
sediment loads to the Bay come from stonnwater. Chemical contaminants from runoff can
exceed the amount reaching local waterways from industries, federal facilities and wastewater
treatment plants. 95 MDE's failure to ensure adequate SWPPPs in NPDES pennits prevents
sufficient progress in mitigating the harm done by stonnwater to the delicate Bay ecosystem. 96

d) INVALID GRANT OF VARIANCE IN THE GENOVIQUE INDUSTRIAL PERMIT

Not only did MOE issue the Genovique pennit without first reviewing the SWPPP as
discussed previously, but it also set effluent limitations in the permit that exceed national effluent
limitation guidelines ("ELGs"). Under CWA implementing regulations, a facility must obtain a
fundamentally-different factors ("FDF") variance to be exempt from national ELGs. 97 On May
2, 1988, the owner of the plasticizer-manufacturing facility currently operated by Genovique98
petitioned for a FDF variance for the facility's NPDES permit. Implementing regulations require
the State agency to acquire EPA approval of the FDF variance, issue a draft permit, and consider
public comments before a state agency issues a permit based on the FDF variance. 99 The FDF
variance petition was submitted in 1988 and EPA has not since issued a detennination regarding
this request, which was confirmed by a FOIA request as well as a recent phone conversation with
an EPA employee. However, MDE gave Genovique the benefit of the variance when it issued its
NPDES pennit in 2002 and it is still in effect since a new permit with more stringent limits has
not been issued yet.

Thus, MOE failed to comply with federal requirements when it issued Genovique's
permit based on the FDF variance petition by neither acquiring EPA approval of the petition nor
fulfilling necessary procedures.

9S Stormwater - Bay Pressures - Chesapeake Bay Program,

http://www.chesapeakebay.net/stormwater.aspx?menuitem;:;19515.
96 Other examples of nonexistent and/or inadequate SWPPPs in permits issued by MDE can be found infra at p. 41.
97 4 0 C.F.R. § 125.31.
98 See supra note 84.
99 40 C.F.R. § 122.62.

29
 3. Expired Permits

When the CWA was passed in 1972, it declared as a national goal "that the discharge of
pollutants into the navigable waters be eliminated by 1985.,,100 While this has not yet come to
pass, this aspiration demonstrates that the Congress intended that NPDES permits would
incorporate progressively stricter standards. 101 To this end, a permitting authority has the
responsibility to reissue expired permits and impose tighter restrictions on the discharger.
According to 40 C.F.R. § 123.63(a)(2)(i), a state's failure to issue permits may constitute
grounds for revocation of the authority delegated to it by EPA. Implicit in this regulation is the
state's duty to reissue permits that have expired. When MOE signed the MOA with EPA in 1989
it explicitly pledged to "administer the NPDES permit program to include... [the] reissuance...
of all permits in the State:,102 as well as "process in a timely manner and propose to issue,
reissue, or modify all NPDES permits including general permits.,,103 Under the terms of the
MOA, MDE also agreed that "[e]xpiring NPDES permits shall be reissued on or before their date
of expiration and if such timely reissuance is not possible, MOE will reissue those permits as
expeditiously as possible."I04 By allowing permits to remain in force for years beyond their
expiration dates,loS MDE is not fully complying with the requirements of 40 C.F.R. § 123.63 and
is not fulfilling the obligations it undertook twenty years ago when it became a party to the
MOA.

The CWA requires that permit standards be periodically revisited, both to force the
development of new technology as well as to respond to changes in water quality standards. 106
These goals cannot be attained if permits expire and remain administratively continued for years.
EPA has acknowledged that permit backlogs are a serious problem in many states with delegated
authority. To ensure that these states were making progress in reducing their backlogs, EPA set
a goal stating that by the year 2004, up to date permits should cover 90% ofthe major and minor
dischargers in every state. As of September 2007, which is the most recent data available on
EPA's website, Maryland had not yet reached this 90% target. While Maryland was by no
means the furthest behind as of2007, neither was it among the leaders. At that time, current

100 33 U.S.C. § 1251(a)(1).

101 See 33 U.S.C. § 1314(b)(1).
102 MOA § II.A(2).
103 [d. § 1I.A(3).
104 Id. § III.
lOS Under 40 C.F.R. § 122.6(d), a State may administratively continue a NPDES permit past its date of expiration.
The expired permit remains in force until the new one is issued by the State permitting authority.
106 See 33 U.S.C § 1311 (b)(2)(A).

30
pennits covered only 70.1 % of major facilities in the state. Maryland came closer to meeting
EPA's goal in regard to minor facilities, with 82.5% of them operating under current pennits. 107

a) EXPIRED GENERAL DISCHARGE PERMITS

MOE has not reissued expired general permits in a timely manner, and is therefore failing
to fulfill its obligations under its delegated authority. General pennits regulate entire categories
of discharges and apply to a large number of facilities in Maryland. As discussed previously,
stormwater pollution is a major problem affecting the Chesapeake Bay and its tributaries. It is
critical that MOE keep these permits up to date. The five-year pennit tenn reflects EPA's
longstanding judgment that NPDES pennits should reflect current scientific understanding,
current best management practices, and current technological controls. 108 Presently the facilities
covered by MDE's expired general permits are operating under outdated regulatory
requirements. :MDE is required to update its general permits once they have expired but in some
cases has failed to do so. The following examples illustrate this problem.

MOE's current General Discharge Permit for Stormwater Associated with Industrial
Activities became effective on December I, 2002 and expired on November 30, 2007. :MDE
states on its website that it does not believe that the permit will be reissued until mid-2010,
nearly three years after its date of expiration. This general permit covers at least 1,600
facilities, J09 including those that engage in manufacturing, mining, and hazardous waste
treatment. Its scope also encompasses landfills that receive industrial waste, recycling facilities,
steam electric power generating facilities, transportation facilities that conduct vehicle
maintenance, sewage treatment works above a certain capacity, and any construction activity that
disturbs over an acre. IIO Stormwater that flows out of these facilities "may contain or mobilize
high levels of contaminants, such as sediment, suspended solids, nutrients, heavy metals,
pathogens, toxins, oxygen-demanding substances, and floatables."J II When this polluted
stonnwater enters local bodies of water, it can change the physical, biological, and chemical
composition of the water; elevate pollutant concentrations and loadings; and can result in an

107 Without any more recent data from either EPA or MOE, it is impossible to know what, if any, progress MDE has
made since 2007 in reducing its permitting backlog.
108 See 40 C.F.R. § 122.46(a).
109 Tom Schueler, Bay-Wide Stormwater Action Strategy: Recommendationsfor Moving Forward in the Chesapeake
Bay 12 (2008), available at http://www.chesapeakestormwater.netistorage/admin-fiIes/csn-source-
documentsIFinal%20Baywide%20StormwaterOIo20Action%20Strategy.pdf.
110 MDE Permit Guide - 3.03 General Discharge Permit for Stormwater Associated with Industrial Activities,
http://www.mde.state.md.uslassetsldocumentipermitl2008PermitGuidelWMA/3.03.pdf.
11140 C.F.R. § 122.30.
31
unhealthy environment for aquatic organisms, wildlife, and humans. I12 Accordingly, these
stormwater discharges need to be carefully regulated and their harm mitigated to the greatest
extent possible. All the facilities in Maryland that are covered by this general permit continue to
discharge potentially harmful stormwater under the terms of an expired permit. Assuming that
the permit is reissued in mid-20l0, as projected by MOE, the regulatory requirements contained
within the current permit will be over eight years old by the time a revised permit is issued.

The General Permit for Discharges from Small Municipal Separate Storm Sewer Systems
("MS4s") took effect on April 14, 2003 and expired five years later on April 14, 2008. It has not
been renewed since that time. According to EPA, "polluted stormwater runoff is commonly
transported through Municipal Separate Storm Sewer Systems ("MS4s"), from which it is often
discharged untreated into local water bodies.,,113 One study cited in the Federal Register
concluded that MS4s "draining runoff from residential, commercial, and light industrial areas
carried more than 10 times the annual loadings of total suspended solids ("TSS") than discharges
from municipal sewage treatment plants that provide secondary treatment.,,114 MS4s can convey
polluted stormwater as well as non-stormwater wastes and wastewater. These illicit discharges
into MS4s can include pollutants such as sanitary wastewater, effluent from septic systems,
pesticides, and used motor oil. IIS This is a major problem, as MS4s are not typically designed to
accept, process or discharge these wastes. I16 The end result, according to EPA, is "untreated
discharges that contribute high levels ofpollutants, including heavy metals, toxics, oil and
grease, solvents, nutrients, viruses and bacteria into receiving water bodies."II? Given the great
potential for harm that is posed by such discharges, it is important that MS4s, both large and
small, be regulated using up-to-date technical requirements and standards. Unfortunately,
because the General Permit for Small MS4s was allowed to expire, this means that discharges to
and from the small municipal separate storm sewer systems in approximately 60 towns and cities
across the State are covered by regulations that were originally promulgated over six years ago.

Finally, MOE's General Permit for Discharges from Marinas has also expired and has not
yet been reissued. The Marina permit became effective on January 3, 2002 and expired on
January 2,2007. This permit is designed to cover discharges such as stormwater runoff from

112 National Pollutant Discharge Elimination System - Regulations for Revisions of the Water Pollution Control
Program Addressing Stormwater Discharges, 64 Fed. Reg. 68,722, 68,724 (Dec. 8, 1999).
113 EPA - Stormwater Discharges from Municipal Separate Sewer Systems (MS4s) - Overview,
http://cfpub.epa.gov/npdeslstormwater/munic.cfrn.
114 National Pollutant Discharge Elimination System - Regulations for Revisions of the Water Pollution Control
Program Addressing Stormwater Discharges, 64 Fed. Reg. 68,722, 68,725 (Dec. 8, 1999).
liS /d. at 68,727.
116/d.
111 /d. at 68,727-28.
32
areas involved in boat maintenance, boat or equipment cleaning operations, and wastewater-to-
surface water discharges of treated bilge water for the more than 600 marinas in Maryland. I 18
Marinas involve potential discharges of pollutants that include"...dust from hull maintenance
operations, solvents from engine repair shops, petroleum from careless fueling practices, sewage
discharges from boats and heavy metals from antifouling paints. These pollutants may be
deposited directly into waterways or they may be carried in by stormwater runoff. .,119 Marinas
actually outnumber industrial dischargers in certain watersheds. For instance, the area
surrounding the South River contains almost no industrial sources but has seventeen marinas. 120
Therefore, in order to protect the health of the South River and similarly situated watersheds,
discharges from marinas need to be tightly regulated by up-to-date permits. It is unclear when
MDE plans to reissue this outdated and expired permit.

b) EXPIRED INDIVIDUAL DISCHARGE PERMITS

MDE is also responsible for issuing and reissuing individual NPDES permits to
dischargers who are not covered by one of the agency's general permits. Individual NPDES
permits are categorized as either major or minor. According to EPA, "major facilities" are
facilities that have "design flows greater than one million gallons per day and facilities with EPA
and State approved industrial pretreatment facilities" and facilities designated as industrial
dischargers. Since major facilities have higher levels ofpollutant discharges, they are subject to
more stringent reporting requirements. Minor facilities "must have a municipal discharge ofless
than one million gallons per day, must not have an industrial waste pretreatment program, and
must not be designated as an industrial discharger by the regulatory authority." I21 Both classes
of individual permits, when drafted, must consider the unique characteristics of the facility at
issue, the area in which it is located, and the nature of the receiving waters.

118 In a 2008 DNR Press Release, DNR states that 126 marinas, which are certified under the agency's clean marina
program, represent "20 percent of the marine facilities in the state." 126 is 20 percent of630, meaning that there are
roughly 630 marina facilities in the state as documented in this press release. ··Anchor Yacht Basin Becomes
Maryland's 126th Certified Clean Marina" (March 7, 2008), available at
http://www.dnr.state.md.us/dnrnews/pressrelease2008/030708.html.
119 Md. Dep't of Natural Res., Md. Clean Marina Guidebook I (2008),
http://www.dnr.state.md.uslboatingicleanmarinaiguidebooklMDCleanMarinaGuidebook2008.pdf.
120 Oak Grove, Liberty Marina, Holiday Point Marina, Selby Bay Marina (Old name was Selby Bay Yacht Basin),
Selby Bay Yacht Club, Turkey Point Marina, Londontowne Marina, Pier 7 Marina, Pocahontas Yacht Club &
Marina (up for sale now), Anchor Yacht Basin, Gingerville Yachting Center, Little Island Marina, South River
Marina, Mayo, Ridge Marina, South River Landing, Hillsmere Community
121 EPA, 2007 Annual Noncompliance Report National Pollutant Discharge Elimination System Non-Majors,
Calendar Year 2007 Final Report I (July 2,2009).
33
 As mentioned previously, a permit writer must be aware of whether the discharges are
into impaired waterways and whether there is a TMDL for the receiving waterbody. The CWA
requires Maryland to develop TMDLs for impaired water bodies. A TMDL is the upper limit of
a given pollutant allowed in those types of waters. A waterbody can be impaired for one or
multiple pollutants. Once a TMDL is established, the state must revisit the permits of all of the
facilities that discharge into the water body, ramping down the amount ofwaste that each entity
puts into the water. Ifthere is an impairment or TMDL, it must be considered when developing
the terms and conditions of the permit. 122 Accordingly, individual permits must be reissued in a
timely manner so that they may incorporate recent community concerns, advances in scientific
knowledge, as well as account for changes in the local environment. The EPA's NPDES Permit
Writers' Manual anticipates that water quality standards will playa key role in shaping the
NPDES permitting process through the water-quality based approach. 123 However, for obvious
reasons, administratively continued permits cannot incorporate water quality standards that were
enacted after the permit's original issuance date. This means that the facilities discharging under
these expired permits may be fully complying with the permit's standards, and yet may still be
further degrading an already impaired waterbody. Examples ofboth major and minor facilities
that are allowed to operate under outdated and expired permits include the examples below.

Charles County and Frederick County operate MS4s under expired major NPDES
individual permits that have been administratively continued since 2007. The Charles County
system discharges into the Lower Potomac Watershed, which includes the Mattawoman Creek
watershed and the Indian Creek watershed. Mattawoman Creek is impaired for both
benthic/fishes bioassessments and nutrients. Mattawoman Creek already has a TMDL for
nutrients, and still requires a TMDL for benthic/fishes bioassessments, though the latter has yet
to be issued. Indian Creek is impaired for fecal coliform and has had a TMDL in place to
address this issue since 2006. The Frederick County system discharges into the Monocacy
watershed, which has had a TMDL for total suspended solids since March 2009 as well as a 2003
TMDL for nutrients. This watershed has also been listed by MDE as a 303(d) Category 5

122 "Permit writers must consider the impact of every proposed surface water discharge on the quality of the
receiving water. Water quality goals for a water body are defined by State water quality standards. A permit writer
may find, by analyzing the effect of a discharge on the receiving water, that technology-based permit limits are not
sufficiently stringent to meet these water quality standards. In such cases, the CWA and EPA regulations require
development of more stringent, water quality-based effluent limits (WQBEL) designed to ensure that water quality
standards are met." 1996 Permit Writers' Manual at 89.
123 According to the Permit Writers' Manual, "States are to review and revise water quality standards, as necessary,
every three years and NPDES permits are to be re-evaluated and issued every five years. The water quality-based
approach links these two processes and is, therefore, an ongoing process of evaluation and modification." EPA,
Guidance for Water Quality-based Decisions: The TMDL Process II (April 1991).
34
impaired waterbody for fecal coliform, and will soon require a TMDL to address that problem.
Given the fact that every one of these TMDLs arose after the permits were originally issued in
2002, both of these MS4s remain subject to the 2002 permit provisions that do not incorporate
the applicable TMDL WLAs. Permit writers, when drafting new permits, must take into account
any TMDLs that apply to receiving waterbodies and adjust the terms of the permit accordingly.
By allowing these permits to remain in force beyond their expiration dates, MDE has neglected
to impose new effluent standards that are necessary to restore the health of these watersheds. In
light of the county-wide scope of these permits, the impairments of the receiving waters, and the
significant potential for harm posed by untreated stormwater, it is critical that these permits be
updated at least every five years.

The New Page Corporation operates a paper mill in Luke, Maryland that discharges into
the North Branch of the Potomac River and the Savage River. This facility operates under a
major individual permit that expired on April 30, 2006. The Potomac Riverkeeper has concerns
about the pH values in the facility's existing permit, because the Savage River has been
designated an impaired waterway due to low pH values. 124

Similarly, the major individual permit held by the Genovique has also been extended past
its 2007 expiration date. Genovique is a manufacturer of organic chemicals used in plasticizers
and synthetic lubricants. The Chester Riverkeeper conducted water quality sampling in the fall
of2007 and found high levels of phosphorus from the facility's outfall 001 and high levels of
BEHp 125 from outfall 002. Genovique's most recent NPDES permit, granted in 2002, does not
authorize the discharge of phosphorus from outfall 001 or the discharge ofBEHP from outfall
002. In 1996 MDE designated the Upper and Middle Chester River as impaired due to excessive
nutrients (including phosphorus) and the final TMDL was issued in 2006. Unfortunately,
Genovique was not included as a phosphorus source in the nutrient TMDL for the Middle
Chester River. 126

Another example of a major source with an expired permit is the Upper Potomac River
Commission's Westernport Wastewater Treatment Facility ("UPRC"). UPRC treats industrial

124 2008 Integrated Report at Part F4 27.

125 BEHP is the common abbreviation for Bis(2-ethylhexyl) phthalate, which is used as a plasticizer in plastics
manufacture and recycling. Animal studies have shown that there is a reasonable probability that it is a human
carcinogen. DHHSlNational Toxicology Program, Eleventh Report on Carcinogens: bis(2-Ethylhexyl) Phthalate
(117-81-7) (January 2005), available at http://ntp.niehs.nih.gov/ntp/roc/eleventhlprofilesls087dehp.pdf.
126 Technical Memorandum: Nutrient Point Sources in the Upper and Middle Chester River Watershed, in Total
Maximum Daily Loads of Nitrogen and Phosphorous for the Upper and Middle Chester Rivers in Kent and Queen
Anne's Counties, MD (Nov. 28,2006), available at http://www.mde.state.md.us/assets/documentlchester-ps-
techmemo_013106_fmal.pdf.
35
waste and municipal sewage from Westernport and Luke, Maryland as well as Piedmont, West
Virginia. The facility discharges into the Northern Branch of the Potomac River. UPRC's
NPDES permit expired on April 30, 2006 and has not been reissued.

Petitioners can also point to at least three examples of minor facilities in the state that
continue to discharge under the terms of expired individual permits. The Mayo Large
Communal Water Reclamation Facility has not had an up-to-date permit since March 31, 2005.
The Mayo facility is a wastewater treatment plant that discharges into the Rhode River, a water
body that is protected for shellfish harvesting. Under the current Tributary Strategy, Mayo is
required to upgrade their capabilities for Enhanced Nutrient Removal. However, despite this
fact, there is no indication that a new permit is anywhere near completion.

Another example is the Kelly Foods Corporation, a dog and cat food manufacturer that
discharges into Kitts Branch, which is a tributary of Newport Bay and part of the Maryland
Coastal Bays. Newport Bay is used extensively for recreation and aquaculture, but is also listed
as an impaired water body because of high nutrient levels. Despite numerous complaints from
local residents about the smells emanating from the plant and discharges from the facility into a
small creek that runs into Kitts Branch, Kelly Foods Corp. continues to discharge under the
terms of a permit that expired on July 31, 2007.

B. INSPECTION AND MONITORING

Federal regulations require delegated state programs "to have inspection and surveillance
procedures [that] determine ... compliance or noncompliance with applicable program
requirements.,,127 These procedures must include "a program for periodic inspections of
facilities subject to regulation" and inspections of "the facilities of all major dischargers at least
annually.,,12S In addition, in the 1989 MOA between MDE and EPA, MDE agreed to "operate a
timely and effective compliance monitoring program" including compliance review and
129
compliance inspection. Under 40 C.F.R. § I 23.63(3)(iii), the Administrator may withdraw a

127
40 C.F.R.§ 123.26.
128 40 C.F.R. § 123.26. Major facilities are facilities that have "design flows greater than one million gallons per day
and facilities with EPA and State approved industrial pretreatment facilities," and facilities designated as industrial
dischargers. A minor facility "must have a municipal discharge of less than one million gallons per day, must not
have an industrial waste pretreatment program, and must not be designated as an industrial discharger by the
regulatory authority." EPA, 2007 Annual Noncompliance Report National Pollutant Discharge Elimination System
Non-Majors Calendar Year 2007 Final Report 1 fu.l (July 2, 2009), available at
http://epa.gov/oecaerthlresourceslreportslperformance/cwalcwa-npdes-non-majors-2007.pdf.
129 MOA § IV.A. "For purposes of this MOA the term "compliance monitoring" is a generic term meant to cover all
activities taken by the MOE to ascertain a permitee's compliance status." [d.
36
state program when it fails "to inspect and monitor activities subject to regulation" according to
the federal law and agreement outlined above.

An effective compliance monitoring and inspection program is critical to achieving the

goals of the NPOES program and the CWA. As EPA said in a 2007 Memorandum outlining its
compliance monitoring strategy, "[c]ompliance monitoring is a cornerstone of EPA's program to
achieve clean water.,,130 An effective compliance monitoring program allows EPA and the
delegated state authority to ensure that permitted facilities are complying with their obligations
and generally "further the broad watershed improvement goals of the NPOES program.,,131

Effective enforcement programs require a great deal of state resources. MOE itself
admits that it does not have the resources to inspect every permittee every year. 132 The 2007
Transition Report acknowledged that as a result of "budgetary constraints, the agencies lack
sufficient personnel and resources to conduct comprehensive and total enforcement for all of its
priorities and programs.,,133 However, in the two years since this report was issued, the
inspection program has not seen increased budgetary or agency focus. As the below examples
show, MDE is failing to meet its requirements under federal law and violating its MOA with
EPA because it has conducted fewer inspections in recent years and fails to conduct follow-up
inspections when violations are detected.

1. Failure to Conduct Adequate Periodic Inspections at Permitted Facilities

The first step to enforcement and compliance is an inspection program that meets federal
requirements. However, according to the Department's own data, MOE has reduced the number
of inspections over the past few years. For example, in 2007 MOE inspected 89% of facilities
with NPDES discharge permits. However, in 2008 MOE only inspected 20% of these
facilities. 134 MDE also reported that for all the facilities regulated under the water management

130 Granta Y. Nakayama, Assistant Adm'r, CWA National Pollutant Discharge Elimination System Compliance
Monitoring Strategy for the Core Program and Wet Weather Sources I (Oct. 17,2007), available at
http://www.epa.gov/compliance/resources/policieslmonitoringlcwalnpdescms.pdf.
1311d.
132 MDE, Enforcement and Compliance Process Frequently Asked Questions (May 17,2007), available at
http://www.mde.state.md.uslassets/documentlEnforcement_Compliance]rocess_FAQ.pdf.
133 Transition Report at 33.
134 These facilities include construction sites covered under the General Permit for Stormwater Associated with
Construction Activity. October 2008 MDEstat Meeting at 7, available at
http://www.mde.state.md.uslassetsldocumentlMDEStatlwmalMDEStat_Meeting_10_20_08.pdf.
37
administration, 47,083 in 2007 and 51,891 in 2008, MOE only inspected 24% in 2007 and 18%
in 2008. This was a 33% reduction in one year from an already low inspection rate. 135

MDE is required to conduct "periodic" inspections ofpermitted facilities. MDE is not

meeting this criterion because it is failing to periodically inspect a number of permitted facilities.
According to the New York Times inspection data, of the 832 facilities with data on inspections,
335 or 40% have not been inspected since 2005 and 287 of those facilities have at least one self-
reported violation. 136 One facility listed in the New York Times data. Elkton Striped Bass
Hatchery, has not been inspected since September 1992 - more than 17 years ago. 137

2. Failure to Conduct Follow Up Inspections of Repeat Violators

MOE also fails to conduct follow-up inspections of repeat violators. Cambridge Iron &
Metal, a metal recycling facility in Baltimore City that discharges into the Baltimore City MS4,
which discharges into the Patapsco River, is an example of this failure. MOE inspected
Cambridge in March 2005 after receiving an anonymous complaint that the facility was violating
its requirements under the General Discharge Permit for Stormwater Associated with Industrial
Activity. The complaint stated that there were visible discharges of oil into storm drains at the
site. The inspection report noted permit violations in the form of oil sheen water running off the
site, an incomplete SWPPP, lack of annual site evaluations, and lack of employee training. A
follow-up inspection in April 2005 found that Cambridge had corrected only two of the eight
violations found in the initial inspection. Despite the company's failure to correct the majority of
these violations, this facility has not been inspected by MOE since April 2005.

The New York Times data includes more examples ofrepeat violators that MDE has not
inspected in over ten years (two full permit terms). For example, the T/A Golden Eye Seafood in
Piney Point, Maryland that discharges into St. George's Creek and eventually into the Potomac
River self-reported 42 permit violations in the past five years, but MOE has not inspected it since
August 1998. Similarly, the Hom Point Laboratory in Cambridge, Maryland that discharges into
the Choptank River had over 80 self-reported violations between 2004 and May 2009 and yet
MOE has not inspected it since August 1995. Northrop Grumman Systems Corporation in

135 [d. 2008 is the most recent data available on MDE's website.
136 N.Y. Times Data.
137 [d. According to the New York Times data, the Elkton Striped Bass Hatchery has no self-reported violations in
the past five years.
38
Linthicum, Maryland that discharges into the Patapsco River self-reported 34 violations, but
MDE has not inspected the facility since August 1999. 138

MDE fails to inspect facilities with a high number of violations. For example, Spencer
Sand & Gravel Eastside in Abingdon, Maryland that discharges into the Bush River reported 233
violations in the past five years, but MDE has not inspected the business since November 2002.
Similarly, 1.M. Huber Corporation in Havre de Grace, Maryland that discharges into the lower
Susquehanna River of the Gunpowder-Patapsco Watershed reported 138 violations in the past
five years, but MDE has conducted no inspection there since September 2003. The Susquehanna
Water Filtration Plant in Perryville, Maryland that drains into Susquehanna River reported 137
violations in the past 5 years and MDE has not inspected it since February 2002. Potomac Water
Filtration Plant in Potomac, Maryland discharges into the Potomac River and has 125 reported
violations in the past five years, but the last time MDE inspected the facility was December
2003. 139

These are only a few examples of the failure ofMDE's inspection program to follow up
after violations are detected. The New York Times data includes numerous other examples of
this failure. MDE is neither conducting periodic inspections of permitted facilities nor inspecting
facilities with numerous reported permit violations.

c. ENFORCEMENT

Pursuant to federal law, a state delegated enforcement program is required to have

authority to impose the following remedies on violators: (1) restrain immediately and effectively
any person from polluting, either by order or by suit in State court; (2) sue to enjoin any
threatened or continued violation; and (3) either assess civil penalties or sue for them in court,
and to seek criminal remedies including fines. 140 In addition, under the 1989 MOA between
MDE and EPA, MDE agreed to "maintain a program of timely and appropriate enforcement
action in accordance with the CWA and with the provisions of this agreement.,,141 Under 40
C.F.R. § 123.63(3)(i), EPA can withdraw a state delegated program when the state's enforcement
program does not comply with the above federal law by failing to take action against permit
violations.

138/d.
139 Jd.
140 4 0 C.F.R. § 123.27.
141 MOA § II.A.3.
39
 Petitioners recognize that it is impossible for MDE, or any state, to bring enforcement
actions against every violator. However, a strong enforcement program is central to an effective
CWA NPDES program. EPA, in their NPDES Permit Writers' Guide, states, "Achieving and
maintaining a high level of compliance with environmental laws and regulations are two of the
most important goals of Federal and State environmental agencies. Enforcement provides a
powerful incentive for NPDES permittees to comply.,,142 Furthermore,
"[e]ffective enforcement is based on the theory of deterrence, which holds that a strong
enforcement program deters the regulated community from violating in the first place, deters
specific violators from further violations, and deters the public from violating other laws.,,143
Strong enforcement is also critical in order to level the playing field for those businesses and
permittees that comply with the law. 144

The 2007 Transition Report recognized that to fulfill this goal of deterrence a strong
enforcement program must have "a strategic mix of criminal, civil, and administrative
complaints to notify the regulated community that compliance with environmental laws is of the
highest priority in this Administration.,,145 The report also acknowledged that Maryland had
failed to effectively implement these elements, thus damaging "the State's credibility among the
public and regulated community.,,146

As is the case with inspection failures, MDE blames its enforcement capabilities on a
lack of resources. 147 The 2007 Transition Report recommended that MDE audit its enforcement
procedures "including existing policies for initiating enforcement actions, assessing civil
penalties, [and] prosecuting criminal violations.,,148

In recent years, MDE reduced its number of enforcement actions. According to MDE's
own data,149 in 2008 MDE rendered 17% less compliance assistance and brought 23% fewer

142 1996 Pennit Writers' Manual at 211.

143 David R. Hodas, Enforcement ofEnvironmental Law in a Triangular Federal System: Can Three not be a Crowd
when Enforcement Authority is Shared by the United States, the States, and their Citizens?, 54 Md. L. Rev. 1552,
1604 (1995); see also EPA, Policy on Civil Penalties 3 (1984), available at
http://www.epa.gov/compliance/resourceslpolicieslciviVpenalty/epapolicy-civilpenalties021684.pdf.
144 Clifford Rechstschaffen, Deterrence v. Cooperation and the Evolving Theory ofEnvironmental Enforcement, 71
S. Cal. L. Rev. 1181, 1226 -27 (1998); EPA, Policy on Civil Penalties 3 (1984), available at
http://www.epa.gov/compliance/resourceslpolicieslciviVpenaltylepapolicy-civilpenalties021 684.pdf
14S Transition Report at 33.
146/d.
147 MOE, Enforcement and Compliance Process Frequently Asked Questions (May 17, 2007), available at
http://www.mde.state.md.uslassets/documentlEnforcement Compliance Process FAQ.pdf.
148 - - -
/d.
149 October 2008 MDEStat Meeting.

40
total enforcement actions than in 2007. In addition, according to the data compiled by the New
York Times, out of239 Maryland facilities reporting thirty or more pennit violations between
2004 and May 2009, MOE brought formal enforcement actions against only 27 facilities. ISO

1. Failure to Follow Up Reported Violations

When MDE is notified ofpermit violations through facility self reporting, inspections, or
citizen complaints, it frequently does not take enforcement action against the violators. Below
are examples of permit violations that have gone unaddressed by MDE's enforcement program.

Between August 2006 and March 2007, MDE found multiple violations ofP&1
Contracting's stormwater permit, but this resulted in no enforcement actions. P&1 Contracting
in Baltimore City crushes and recycles concrete and other materials. It is covered under the
General Discharge Permit for Stormwater Associated with Industrial Activities. P&J
Contracting's discharges drain into the Baltimore City MS4, which eventually discharges into
the Patapsco River. An August 29, 2006 inspection of the facility found non-compliance and an
October 2006 inspection showed that corrections were still needed. The SWPPP, though present,
was incomplete. Another inspection in March 2007 again found that P&1 needed to make
corrections, including containment around the drums, maintenance of stone entrances, and storm
drain inlet protection as detailed in SWPPP. According to data provided by MOE in response to
a Public Information Act ("PIA") request, MDE did not take any enforcement action against the
facility, nor have they followed up with any inspections since 2007.

Multiple violations yielded no enforcement actions at Martin Reese G&G Auto TA

Marty's Auto Parts ("Martin Reese") in Baltimore City, which discharges into Gwynn Falls. A
December 2003 compliance inspection at Martin Reese revealed "severely destabilized areas
around the site." Additionally, the auto yard had not moved junked automobiles as previously
required. MDE threatened enforcement if Martin Reese did not respond within 14 days. A
March 18, 2004 follow-up inspection report noted that the facility must develop a SWPPP within
7-10 days, remove more junked cars, and place stone and filter cloth around the perimeter.
Despite these permit violations, MDE still has not brought any enforcement action against the
facility, nor have they conducted any follow-up inspections or imposed any administrative fines
since March of 2004.

ISO N.Y. Times Data.

41
 The Berg Brothers Recycling Company in Baltimore, Maryland recycles ferrous and non-
ferrous scrap metal and discharges into the Baltimore City MS4 and eventually into the Patapsco
River. MOE inspected the facility in January 2002 and reported that the company violated its
permit by allowing sediment and unknown contaminants to run off into storm drains. Between
June 2002 and September 2009, there are no records showing that MDE brought any
enforcement actions against this facility, nor have they conducted any follow-up inspections or
imposed any administrative fines.

MOE also fails to take enforcement actions against a number of major facilities despite
repeated violations at these facilities. The following examples illustrate this concern.

MDE has not penalized the Maryland and Virginia Milk Producers Coop Association, a
manufacturer of dry, condensed, and evaporated dairy products in Laurel, Maryland, despite
numerous self-reported permit violations. The Association is a major NPDES facility that
discharges into the Patuxent River. According to MDE's violation data, between January 2007
and June 2009 the facility violated its permit 11 times. According to ECHO,ISI the facility has
been out of compliance for five of the last twelve quarters. However, according to MDE's
penalty data and ECHO, MOE did not take any enforcement action against the facility.

The Fort Detrick Wastewater Treatment Plant ("Fort Detrick") is a major NPDES facility
that discharges into the Upper Monocacy River. According to MDE's data, it violated its permit
30 times in June 2009. According to ECHO and MDE's penalty data, MDE has not taken any
enforcement actions against the facility for these violations.

Mirant Mid-Atlantic, LLC and Mirant MD Ash Management, LLC ("Mirant")

Brandywine Coal Combustion Waste Landfill is located in Prince George's County, Maryland.
The Brandywine Landfill stores coal combustion waste ("CCW" or "coal ash"), a hazardous
material that is notorious for contaminating ground and surface waters with toxic heavy metals.
Unsafe disposal of CCW is threatening the health oflocal communities, making groundwater
unsafe to drink, harming aquatic life and wildlife, and polluting rivers and streams. At the
Brandywine Landfill, Mirant is illegally discharging toxic pollutants into Mataponi Creek via
Outfalls 002, 004, and 006 and groundwater, in violation of the terms and conditions of its
NPDES permit. Mirant's discharges into Mataponi Creek, which flows into Merkle Wildlife
Sanctuary and the Patuxent River, have injured, and will continue to injure, the waters of the

151 Enforcement & Compliance History Online ("ECHO"), http://www.epa-echo.gov/echo. ECHO provides
integrated searches of EPA and state data for more than 800,000 regulated facilities. ECHO integrates inspection,
violation, and enforcement for CWA, Clean Air Act and hazardous waste laws.

42
State. Despite the serious and frequent nature of these violations, MDE has not pursued an
enforcement action against Mirant.

The Princess Anne Wastewater Treatment Plant ("Princess Anne") in Princess Anne,
Maryland is a major NPDES facility that discharges into Manokin River in the Pocomoke
Watershed. According to the major violations data provided by MOE, Princess Anne violated its
NPDES individual permit 13 times between January 2007 and June 2009. According to ECHO,
a number of these violations were "significant noncompliance" and the facility has been out of
compliance for eight of the past twelve quarters. Despite these violations, MDE has not taken
any enforcement actions against the facility.

The Chesapeake Beach Wastewater Treatment Plant ("Chesapeake Beach") in

Chesapeake Beach, Maryland also violated its NPDES permit numerous times between 2007 and
2009. Chesapeake Beach is a major facility that discharges into the Severn River watershed, and
ultimately into the Chesapeake Bay. In May 2008, Chesapeake Beach violated its permit nine
times. It violated its phosphorus limit four times; its total nitrogen limit two times; its total
suspended solids limit one time; and its dissolved oxygen limit twice. According to ECHO, the
New York Times data, and MOE's own data, MDE has not penalized Chesapeake Beach for
these violations, nor brought any enforcement actions against them.

MDE's failure to take enforcement actions when notified of permit violations does not
create a strong enforcement program that deters these facilities from continuing to violate their
permits.

2. Failure to Enforce Consent Decrees. Administrative Orders and Settlement Agreements

EPA, in its NPDES Permit Writers' Guide, "recommends an escalating response to

continuing noncompliance.,,152 Even when MDE takes action against permit violators, these
actions are not adequate to deter future violations. MDE fails to enforce existing administrative
orders requiring corrective actions, consent decrees, and settlement agreements. Examples
include the following cases:

The La Plata Wastewater Treatment Plant ("La Plata") located in the Town of La Plata in
Charles County discharges effluent into a tributary of the Port Tobacco Creek in the Lower
Potomac Watershed. The Lower Potomac Watershed is impaired for PCB in fish tissue, fecal
coliform, benthic/fish bioassessments, total nitrogen, total phosphorus, total suspended solids,

152 1996 Permit Writers' Manual at 211.

43
and estuarine bioassements. 153 MOE and La Plata signed an administrative consent order in
December 1999. 154 Under the consent order, MOE required La Plata to upgrade its plant by
March 2002. In 2002, La Plata also agreed to pay stipulated penalties to settle several
unauthorized discharges including a $1,000 penalty to settle unauthorized discharge of
wastewater on March 2, 2002. However, since entering into the administrative consent order and
agreeing to MDE's settlement terms, La Plata continues to report permit violations that go
unpunished by MDE. La Plata's own Discharge Monitoring Reports and information provided
by MOE indicates that La Plata violated its permit in June 2002, January 2003, February 2003,
March 2003, April 2003, June 2003, October to December 2004, April 2005, January 2007,
February 2007, March 2007, April 2007, July 2007, August 2007, February 2008, July 2008,
February 2009, and June 2009. These violations included: (1) 23 violations of its nitrogen limits;
(2) six violations of its total suspended solids limit; (3) 15 violations ofits phosphorus limit; (4)
two violations of its biological oxygen demand limit; and (5) three violation of its fecal coliform
limit. According to ECHO, La Plata has been out of compliance for ten of the last twelve
quarters and one violation of its phosphorus limits between July and September 2007 was
"significant noncompliance." Despite these numerous violations, according to the New York
Times Data and information on penalties provided by MOE, the agency has not taken
enforcement action against La Plata beyond the stipulated penalties in 2002.

MOE also failed to penalize the Celanese Wastewater Treatment Plant in Cumberland,
Maryland that discharges into the North Branch of the Potomac River for numerous violations
occurring subsequent to an MOE enforcement action. MOE took enforcement action against
Celanese in April of2007. The facility paid an administrative fine of$I,050. Despite this
penalty, according to data provided by MDE on major facility violations between 2007 and 2009,
Celanese WWTP has had 32 permit violations since this enforcement action (primarily in the
year 2009). However, according to the New York Times, ECHO, and data provided by MDE,
MOE has not imposed further penalties or taken further enforcement actions against this facility.

The Constellation Power CP Crane Generating Station in Baltimore City that discharges
into the Salt Peter Creek of the Gunpowder- Patapsco Watershed has also continued to illegally
discharge following enforcement proceedings by MOE. According to ECHO, in June of2005,
Constellation received a Notice of Violation from MOE. Despite this action, the power

153 A TMDL for PCB in fish tissue was approved in 2008 and a TMDL for the fecal colifonn was approved in 2006.
2008 Integrated Report at Part F4. In addition, the Lower Potomac Watershed is a category five watershed or an
impaired watershed for benthic/fishes bioassessments, total nitrogen, total phosphorous, Total Suspended Solids,
and Estuarine Bioassessments. [d. at Part F5.
154 This administrative consent order was amended in April 2000.
44
generating station has had thennal discharges above the limits allowed under its permit nine
times between January 2007 and June 2009. According to ECHO~ the station has been out of
compliance for six out of the past twelve quarters. However~ ECHO does not indicate that MDE
brought any new enforcement actions against Constellation as a result of the further illegal
discharges.

As the above examples illustrate, MOE fails to enforce its consent decrees~ settlement
agreements and administrative corrective action orders~ thereby allowing violators to continue to
illegally discharge subsequent to MOE's initial enforcement actions.

D. PENALTIES

Under 40 C.F.R. § I 23.63(3)(ii) EPA can withdraw a state NPOES program when its
enforcement program fails "to seek adequate enforcement penalties or collect administrative
fines when imposed." Pursuant to the 1989 MOA~ MOE agreed to "maintain a program of
timely and appropriate enforcement action in accordance with the CWA and with the provisions
of this agreement.,,155 The issuance of penalties that reflect the seriousness of the underlying
violation is part ofa "timely and appropriate enforcement action."

Administrative, civil and criminal penalties serve a number of important functions. The
imposition of penalties and fines are intended to further the goal of deterrence~ which is common
to all enforcement programs. In addition~ penalties and fines ensure that a violator does not
receive any economic benefit or advantage by violating the law. 156 These goals~ however, can be
accomplished only if the penalties and fines imposed are high enough to deter and to prevent the
violator from gaining economic advantages through its non-compliance. 157 Not only is
Maryland's statutory range for civil and criminal penalties inadequate, but MDE also fails to
impose penalties at an amount that will actually deter future violations.

ISS MOA § II.A.3.

1S6 Clifford Rechstschaffen, Deterrence v. Cooperation and the Evolving Theory ofEnvironmental Enforcement, 71
S. Cal. L. Rev. 1181, 1226 -1227 (1998); EPA, Policy on Civil Penalties 3 (1984), available at
http://www.epa.gov/compliance/resourceslpolicieslcivillpenalty/epapolicy-civilpenalties02I684.pdf.
IS7 Clifford RechstschatTen, Deterrence v. Cooperation and the Evolving Theory ofEnvironmental Enforcement. 71
S. Cal. L. Rev. 1181, 1226-27 (1998).

45
 1. Inadequate Statutory Range of Penalties

An administrative fine can be imposed on a permittee as a result of an inspection or

notice of violation. A civil penalty can be imposed on a permittee as a result of an enforcement
action or lawsuit. Criminal penalties can be imposed for various criminal violations of the
CWA. 158 Under Maryland law, an administrative fine imposed on a facility "shall be: up to
$5,000 for each violation, but not exceeding $50,000 total.,,159 In addition, under Maryland law
a person who violates a permit "is liable to a civil penalty not exceeding $10,000" per day or per
violation.160

When enacted, the CWA set administrative fines for Class I violations at a maximum of
$10,000 per violation and a total maximum of $25,000, and Class II violations at a maximum of
$10,000 per violation and a total maximum of$125,000. Similarly the Act set civil penalties at a
maximum of$25,000 per day for each violation. 161

In 1990, Congress passed the Federal Civil Penalties Inflation Adjustment Act requiring
each federal agency to adjust its civil penalties for inflation every four years. 162 ''The purpose of
these adjustments is to maintain the deterrent effect of civil penalties and to further the policy
goals of the underlying statutes.,,163 As a result of this Act, in 1997, EPA adjusted its
administrative fines to a maximum of$II,OOO per violation and a total maximum of$27,500 for
Class I violations and $137,500 for Class II violations. In addition, EPA adjusted its civil

158 Although Maryland rarely brings criminal charges for CWA violations, a violator is also subject to a criminal
penalty not exceeding S25,000 per day per violation and/or one year in prison for a fmt conviction and not
exceeding S50,000 per day per violation and/or two years in prison for any conviction thereafter. Md. Code Ann.
Envir. 9-343 (West 2009). In contrast, Federal criminal penalties under the CWA are as follows: (1) for negligent
violations "not less than $2,500 nor more than S25,000 per day per violations" and/or one year in prison for the first
conviction, and a fine of "not more than S50,000 per day per violation" and/or two years in prison for any conviction
thereafter; (2) for knowing violations, "not less than S5,000 nor more than S50,000 per day per violation" and/or
not more than three years in prison for the first conviction, and not more than SIOO,OOO per day of violation and/or
six years in prison for any conviction thereafter; for knowing endangerment violations, "not more than S250,000"
and/or 15 years in prison. For organizational violators guilty of knowing endangerment "not more than SI,OOO,OOO."
The fines are doubled for any conviction of knowing endangerment after the first conviction. 33 U.S.C. § 1319(d)
(2000). In addition, federal criminal fines can be increased pursuant to the Alternative Fines Act, 18 U.S.C.
3571(c)(l) which allows a penalty that is twice the pecuniary gain to violator or twice the loss caused by the
offiense.
159 Md. Code. Ann., Envir. § 9-342 (2009).
160 Id.
161 33 V.S.c. § 1319(d) (2000).
162 Federal Civil Penalties Inflation Adjustment Act of 1990, Pub. L. No. 104-410,104 Stat. 890, as amended by the
Debt Collection Improvement Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321.
163 73 Fed. Reg. 75340 (Dec. II, 2008).
46
penalties to a total of$27,500 per day for each violation. 1M In 2004, EPA again adjusted its
penalties as per the Act. EPA raised its total maximum administrative fines to $32,500 for Class
I violations and $157,500 for Class II violations. EPA also raised its civil penalties to a
maximum of$32,500. EPA's most recent adjustment took effect in January of2009. It raised its
administrative fines to a maximum of$16,000 per violation and a total maximum of$37,500 for
Class I violations and $177,500 for Class II violations. EPA raised its civil penalties to a
maximum $37,500 per violation. 165

In contrast, Maryland has no such inflation rule and has not raised most of its statutory
penalties to adjust for changing times. In 1986, Maryland's civil penalties used to enforce water
pollution laws were a maximum of $1 0,000. 166 The maximum amount for civil penalties has not
increased at all in over twenty years. 167

As supported by federal law, inflation alone prevents Maryland's outdated penalties from
acting as an effective deterrent of future violations. The State of Maryland and MDE must revise
their penalty range in order to implement an effective NPDES program.

2. Failure to impose penalties and fines that deter future violations

Administrative and civil penalties are effective when they are imposed at a level that will
deter future conduct. MDE is faced with an inadequate statutory range for civil penalties. MDE
compounds the statutory inadequacy by failing to impose and/or collect fines in amounts that
will effectively deter violators.

According to penalty data provided by MDE, the agency routinely reduces the amount of
penalties it imposes and collects from violators. Between January 2007 and September 2009,
MDE imposed 410 penalties. MDE reduced the amount of the original penalty imposed for 162,
or 40%, of the 410 original penalties. Of these 162 reduced penalties, MDE further reduced 121
penalties, or 75%, at the time the invoice was sent to the violator. In addition, as of September
2009, 60, or 15%, of all the penalties imposed remained unpaid. This data shows that even with
the low statutory maximum for penalties and fines, MDE still reduces the penalty amount for

164 40 C.F.R. § 19.4 (2009).

165/d.
166Md. Code Ann. Envir. § 9-342 (1986).
167In October 2009, Maryland did raise its administrative fme per violation maximum from SI,OOO per violation to
$5,000 per violation. which is still far below the current per violation maximum for federal administrative fines.
However, the maximum administrative fine is still capped at $50,000. 2009 Md. Laws Ch. 258. In 2004, Maryland
also raised its criminal penalties for knowingly making false statements. However, criminal penalties for general
criminal violations have not been raised. See 2004 Md. Laws, Ch. 21.
47
significant numbers of violations and even allows penalties to go unpaid. The New York Times'
article on CWA enforcement also outlined MDE's failure to impose adequate penalties when
violations occur. According to this data, MOE did not impose one fine on any ofthe 2,400-plus
168
facilities in Maryland that reported violations between 2004 and May 2009.

One example ofMDE's failure to impose adequate administrative penalties is Cambridge

Iron & Metal ("Cambridge"). As discussed above, Cambridge was inspected twice in 2005 and
MOE found oil sheen water running off the site, an incomplete SWPPP, a lack of annual site
evaluations and lack of employee training. As a result of these violations, MOE entered into an
agreement with Cambridge that it would only impose administrative penalties for the "two days
of unauthorized discharges of sediment-laden water" that the inspector observed in March 2005,
which totaled only $1,600.

Under Maryland law, at the time of the violation, MDE could have imposed up to $1,000
in administrative fines each day Cambridge was out of compliance with its permit, not just for
the days the inspector observed the violations. In addition, even for those two days of violations,
MOE could have imposed up to $2,000 dollars in fines, yet MOE chose to reduce that amount.

Another example of a failure to impose adequate penalties is the Assateague

PointelFrontier Town Waste Water Treatment Plant in Berlin, Maryland. The site was reported
to MOE in July 2008 for a faulty force main pipe that was spewing raw sewage into the woods
adjacent to Frontier Town on Route 611 in Worcester County that then discharges into
Sinepuxent Bay of the Coastal Bays Watershed. MDE inspected the property and found that the
facility's inspection and monitoring logs were not in compliance. However, MOE imposed no
fines for either the sewage discharges or the inadequate logs, and simply gave the facility a week
to bring its logs up to date. Although it is not reasonable to expect that every violation will
result in the imposition ofthe maximum fine, in this case MOE failed to impose any penalty for
the violation.

The ISG Sparrows Point Inc. steel works, a major facility in Sparrows Point, Maryland
that discharges into the Patapsco River of the Gunpowder-Patapsco watershed, also illustrates
this problem. Between January 2007 and June 2009, according to major violation data provided
by MOE, the facility violated its permit 17 times. According to ECHO, the facility was out of
compliance for six of the last twelve quarters. Despite 20 inspections in the last five years, the
last conducted in September 2009, MDE has not imposed any penalties on the facility.

168 N.Y. Times Data.

48
 MDE reduces the penalty amount collected from the violator and imposes penalties that
are ineffective in deterring future violations. Under the 1989 MOA, MOE is required to "create
and maintain the legal capability...and the resources required to carry out all aspects of the
NPOES program.,,169 By imposing more substantial administrative and civil penalties and
bringing more criminal actions in appropriate cases, MDE could fulfill its responsibility under
the MOA to maintain sufficient resources and recoup some economic benefit from the penalties
imposed.

E. PUBLIC PARTICIPATION IN PERMITTING AND ENFORCEMENT

The CWA requires that public participation in both the permitting and enforcement
processes be an integral part of every NPDES program. Title I of the Act, the section entitled
"Congressional declaration of goals and policy" clearly states:

Public participation in the development, revision, and enforcement of any regulation,

standard, effluent limitation, plan, or program established by the Administrator or
any State under this chapter shall be provided for, encouraged, and assisted by the
Administrator and the States. 170

In recognition of the prominent role that citizen involvement should have in any state-
administered program, 40 C.F.R. § 123.63(a)(iii) provides that the EPA may withdraw a state's
authority to administer the Act when that state's program fails to comply with the public
participation requirements of 40 C.F.R. § 123. Maryland's program, in its current state, does not
clearly and adequately provide for public participation in at least two areas. First, Maryland law
does not explicitly give citizens a right of intervention in agency enforcement actions, nor does it
allow citizens to comment on any proposed settlements that might result from a State
enforcement action. Second, MDE's inefficient recordkeeping methods hamper the ability of the
public to obtain information through Public Information Act ("PIA") requests, which has the
effect of impeding citizen participation in all areas of the CWA.

1. Limitations on Citizen Intervention

Under 40 C.F.R. § 123.27(d), any state administering the CWA must provide for citizen
participation in the enforcement process in one of two ways. The first option is for the state to
allow intervention as of right in any civil or administrative action for a citizen that has an interest

169 MOA § ILA.I.

170
33 U.S.C. § 1251(e).
49
which is or may be adverselyaffected.!7! Alternatively, under 40 C.F.R. § 123.27(d)(2), a state
that does not allow intervention as ofright in enforcement actions must provide assurances that
its enforcement agency (1) will investigate and provide written responses to all citizen
complaints submitted in accordance with proper procedures, (2) will not oppose pennissive
intervention by citizen groups when the intervention is authorized by statute, rule, or regulation,
and (3) will publish notice of and provide for a 30 day comment period on any proposed
settlement of a State enforcement action. However, Maryland law does not expressly allow
citizens to fully participate in enforcement actions through either avenue. The Maryland rule
governing intervention does not explicitly provide citizens the right to intervene in state
enforcement actions, and some trial courts have withheld the right to intervene in such cases. In
addition, MDE does not publish notice of and provide for a 30-day comment period for proposed
settlement agreements. Therefore the state's program does not meet the public participation
requirements of the CWA.

Citizens who have an interest that will be or may be adversely affected by the disposition
of a state enforcement action do not have an express right to intervene in the proceeding, be it
civil or administrative. Under Maryland Rule 2-214(a), a party in a civil case must be allowed to
intervene in a civil proceeding when the party has an unconditional right to do so as a matter of
law, or "when the person claims an interest relating to the property or transaction that is the
subject of the action, and the person is so situated that the disposition of the action may as a
practical matter impair or impede the ability to protect that interest unless it is adequately
represented by existing parties." Intervention as of right in an administrative proceeding is
governed by COMAR 26.01.02.24(A), which uses language that is identical to MD Rule 2-
214(a). Some Maryland trial courts have interpreted the last clause ofMD Rule 2-214(a)(2) and
COMAR 26.01.02.24(A)(2), "unless [the interest] ... is adequately represented by existing
parties," in such a way so as to deny citizens the opportunity to intervene in enforcement actions
brought by MDE, even when the agency itself supports the intervention and infonns the court
that the agency's interests and the interests of the proposed intervenors do not fully coincide.

Citizens should be encouraged to file their own lawsuits against violators. Citizen suits
save the state enforcement agency valuable resources, give concerned organizations and
members of the public an opportunity to stop violations that most affect them, and give the
public a say in the direction that enforcement actions take. This was clearly the goal when
Congress passed the CWA. But when citizens are denied the opportunity to intervene in existing
enforcement actions, or have their own suits consistently over-filed by the state agency. the

171
40 C.F.R. § 123.27.
50
citizen suit provision of the CWA becomes largely meaningless. In the two different state
enforcement actions discussed below t Maryland trial courts denied citizen groupst motions to
intervene t even though the outcome of the statets enforcement actions would significantly impact
the groupst interests.

The Chester River Association ("CRAt\ a non-profit environmental group dedicated to

preserving the Chester River and its tributaries, suspected that a local industry, the
aforementioned Genovique facilitYt was discharging excessive nutrients from its outfalls. CRA
took samples from the outfalls t and subsequent testing revealed that the facility was discharging
levels ofBEHP and phosphorous not authorized by its permit. With this information in hand t
CRA took its concerns to MOE. Although MOE eventually filed a civil complaint against
Genovique on October 31,2007, MOE's complaint only alleged that the facility was illegally
discharging pollutants into the local groundwater. The complaint did not include any of the
surface water discharge violations that CRA had brought to the agency's attention. Believing
this to be a serious omission, on November 20,2007 CRA filed a motion to intervene in MDE's
enforcement action and on the following day sent Genovique a 60 day Notice of Intent to file suit
in federal court for the surface water violations. On February 21, 2008 the Circuit Court for
Kent County denied CRA's motion to intervene, finding that there was insufficient evidence to
indicate that MOE would not properly represent the groupts interests. Seeking to address the
perceived shortcomings of MOE's lawsuit, eRA filed its own citizen suit in federal court on
March 12 t 2008. Later, on July 8,2008 (while CRA's citizen suit was still in its preliminary
stages), MDE and Genovique entered into a consent decree that addressed both surface and
ground water pollution t although the restrictions it imposed were not as stringent as CRA would
have liked. CRA was not given an opportunity to participate in the negotiation of the final
agreement, but felt compelled, in the interest ofjudicial economy, to ask the court to dismiss its
complaint without prejudice.

In this case, eRA did not have its concerns fully addressed by either MOE or a court.
The group was denied the opportunity to intervene in the state enforcement action because of the
court's interpretation ofMO Rule 2-214, despite the fact that the agency's complaint did not
make any allegations related to surface water discharges. When CRA sought to litigate these
concerns on its own, MDE and Genovique, without any input from CRA, entered into an
agreement that essentially rendered the citizen suit moot. MOE's litigation strategy, combined
with the Circuit Court's reading ofMO Rule 2-214, denied CRA any meaningful role in this
enforcement action, even though CRA was largely responsible for bringing Genovique's
discharge violations to light in the first place.

A pending case that also illustrates the shortcomings of Maryland's intervention law,
State ofMaryland Dept. ofthe Environment v. Mirant Mary/and Ash Management, involves the
51
Mirant Faulkner facility in Charles County, Maryland. Mirant Faulkner receives and disposes of
fly ash from a nearby coal-fired power plant. The facility discharges into Bowling Creek and
tributaries of Zekiah Swamp Run, which eventually feed into the Wicomico River. In 2000,
MDE entered into a consent decree with PEPCO, the previous owner of the facility, to address
permit violations. The consent decree's obligations transferred to Mirant when it purchased the
facility in December of 2000. Following its purchase, Mirant continued to illegally discharge
from the facility into the Zekiah swamp but MDE took no additional enforcement action, despite
being notified ofthe findings of the Environmental Integrity Project ("EIP"), an environmental
non-profit organization.

As a result of its own sampling and record review, EIP found violations that included
toxic discharges in excess of Maryland's water quality criteria, pollutant discharges without a
pennit and in violation of a NPDES permit, and failures to monitor as required by their permit.
The research identified nearly 13,000 CWA violations between 2006 and 2008. On April 2, 2008
EIP and PRK sent out a 60-day Notice of Intent to sue for violations of the CWA. Then, on May
29, 2009, and before the 60-day Notice of Intent time frame had elapsed, MDE filed suit against
Mirant Faulkner in state court. PRK and EIP filed a motion to intervene in the enforcement
action. MDE, in its memorandum in support ofPRK and EIP's motion, acknowledged that its
interests and the interests of the two citizen groups were not necessarily the same and that PRK
and EIP, having met all the criteria under Rule 2-214, were entitled to intervene as of right.
However, on September 23, 2009 the Circuit Court for Charles County denied the motion
without explanation. 172 PRK and EIP were thus not permitted to participate in MDE's
enforcement action, despite the fact that they had expended their own time and resources to
uncover Mirant Faulkner's illegal discharges.

Because Maryland courts interpret the state's intervention rule in a manner that does not
provide citizens an express right of intervention in CWA enforcement cases, Maryland's water
program must satisfy the three requirements of 40 C.F.R. § 123.27(d)(2) in order to fulfill the
public participation requirements of Part 123. However, state law does not provide for a 30-day
notice and comment period for proposed settlements of state enforcement actions. This
shortcoming is best demonstrated by the aforementioned Genovique example in which CRA was
not permitted to comment on the consent decree and thus was unable to press for some of the
more stringent limits and restrictions that it believed were necessary to protect the health of the
Chester River. Historically, citizen groups in this state have been prevented from participating in
enforcement actions through either of two approved methods set out in 40 C.F.R. § 123.27(d).

172 Intervenors have appealed this denial to the Maryland Court of Special Appeals.
52
Therefore Maryland's water program does not allow for public participation as envisioned by the
regulations enacted pursuant to the CWA.

2. Deficient Handling of PIA Requests

The ability of citizens to efficiently obtain information from the state is an important
prerequisite to public participation in the permitting and enforcement processes of the CWA.
This is primarily accomplished through Public Information Act (UPIA") requests. Under the
PIA, if a member ofthe public requests to inspect a public record, its custodian must approve or
deny the request within 30 days after receiving it. 173 Should a request be approved, the custodian
is directed to uproduce the public record immediately or within the reasonable period that is
needed to retrieve the public record, but not to exceed 30 days after receipt of the application.',174
Thus, the PIA clearly evinces the intention of the legislature that state agencies should respond to
PIA requests and produce the requested materials as soon as possible, or at least within the 30-
day statutory time frame. With an adequate system of record-keeping, thirty days is a reasonable
amount oftime in which to comply. Further, an efficient record-keeping system is required by
the terms ofthe 1989 MOA. Contained in the MOA are MDE's obligations to U[m]aintain an
adequate public file at the appropriate Regional or Central Office... for each permittee,"175 as
well as to make U[plermit applications, draft permits, public notices, fact sheets... and all
effluent data... available to any party upon request.,,176

The public can participate in the implementation of the CWA only if it has the relevant
information it needs; information that, in most cases, is in the possession ofMDE. When the
agency fails to properly handle PIA requests, it impedes public participation when instead it
should be encouraging and assisting it. As the examples below will demonstrate, MDE takes too
long to respond to PIA requests and charges excessively high fees to comply with them.
Additionally, when MDE does get around to providing a response it is often inadequate and
incomplete. MDE is not meeting the public participation requirement of 40 C.F.R. 123.63(a)(iii)
or the terms of its 1989 MOA.

173 Md. Code Ann., State Gov't, §10-614(b)(I).

174 Md. Code Ann., State Gov't, §10-614(b)(2).
I7S MOA § II.A(8).
176 Jd. § III.G( I)

53
 a) UNTIMELy PIA RESPONSES

In one example, Waterkeeper Alliance, Inc. submitted a PIA request on June 17,2009.
The Alliance had to follow up with MDE numerous times and was forced to severely narrow the
scope of its request. MOE did not produce any of the desired materials until October 2, 2009,
well in excess of thirty days. In a separate incident, the Sassafras Riverkeeper submitted a PIA
request to MOE dated July 10, 2009 seeking Field Inspection Reports and compliance files for
the Galena Wastewater Treatment Plant. As of the date ofthis petition, the agency has failed to
respond. One final example concerns nine PIA requests that were filed by the Baltimore Harbor
Waterkeeper, the West Rhode Riverkeeper, the Anacostia Riverkeeper, the Patuxent
Riverkeeper, and South Riverkeeper. These PIA requests sought information related to the MS4
permits for nine different Phase I (medium and large) jurisdictions across the state. One request
was received by MDE on July 30,2009, another on August 18,2009, and the remaining seven
were received on September 10, 2009. However, as of the date of this petition, none of the
organizations have received any documents, despite the fact that they had agreed to limit the
request to only include documents from the previous five years. The public cannot effectively
assist in enforcing the CWA when it is forced to wait months to receive relevant materials that
are exclusively in the agency's possession.

One potential reason for this problem is that MOE does not keep public records in a way
that makes them easily available for production or inspection. In the case of the MS4 PIA
requests mentioned above, MDE informed the Baltimore Harbor Waterkeeper that complying
with the requests would require the agency to expend ten information gathering hours per permit
and that the organization was not entitled to a fee waiver from the agency. Given the high
importance and broad scope of this class ofpermits, MOE should keep the documents pertaining
to them in a manner that makes them easily accessible to the public. It certainly should not take
the agency ten hours to gather the relevant materials for each individual MS4 permit.

The depth of this problem is also illustrated by the manner in which MOE keeps records
of the facilities that filed No Exposure Certifications (''NECs''). Industries that wish to exempt
themselves from coverage under the General Industrial Stormwater permit must file NECs with
MOE. On July 8,2009, the Baltimore Harbor Waterkeeper informally requested that MDE
provide it with a list of facilities in the Baltimore Harbor watershed that filed these certifications
in the past five years. The agency acknowledged that such information was contained in a
database and attempted to respond to this request in good faith, but maintained that no one in the
office knew how to generate a report of the data. The staffperson shared in Baltimore Harbor
Waterkeeper's frustration and explained that the Customer Service Center, which was previously
responsible for fulfilling these requests, had recently been disbanded with no one trained to take
over its tasks. The Baltimore Harbor Waterkeeper conducted numerous follow-ups with MDE in
54
the months that followed the initial inquiry. On November 2, 2009 the agency again told the
Waterkeeper that no one in the office had the training that was necessary to generate the NEC
report. As of November 30,2009, the Waterkeeper had still not received the list of facilities
fromMDE.

In regard to the June 17,2009 PIA request discussed above, MOE estimated that it would
take 168 hours to comply with the request, and would cost Waterkeeper Alliance around $1,680
to $6,720, depending on the pay grade of the employees involved. In another instance, a law
clerk for the Baltimore Harbor Waterkeeper submitted a PIA request during the summer of 2009
regarding several facilities located in the Baltimore Harbor watershed. In an e-mail dated July 7,
2009, MDE's PIA Coordinator informed Baltimore Harbor Waterkeeper that it would take
approximately 2,136 hours to fulfill the PIA request and would cost the organization somewhere
between $21,360 and $85,440. MDE also stated that electronic documents and electronic data
were not available in lieu of the physical documents.

Maryland's Public Information Act limits the custodian of a public record to charging a
"reasonable fee" for the search, preparation, and reproduction of requested records. 177 Under the
statute, "reasonable fee" is defined as "a fee bearing a reasonable relationship to the recovery of
actual costs incurred by a governmental unit.,,178 Petitioners believe that a fee between $21,360
and $85,440 cannot be said to bear a reasonable relationship to the actual costs that would be
incurred by the agency. If such estimates do in fact represent the actual costs that the agency
would incur by responding to PIA requests, then that only serves to demonstrate the extent of
inefficiency in MDE's record management system.

MDE's fee estimates for fulfilling PIA requests are, in many cases, higher than the initial
permit fee imposed by MOE on permit applicants. 179 The agency's record-keeping system is
clearly in need of improvement ifit costs MDE more to search for and produce documents than
it does for them to draft a discharge permit. Similarly, these estimates are often higher than any
administrative fines or penalties imposed on facilities in violation of their NPOES permits. Not
only do low administrative fines and penalties fail to deter future violations, but MDE's system
is truly in need of review when it charges those in violation of the law less than those attempting
to exercise their legal right to review public documents.

Improving MDE's record management would benefit the agency as well as the public, as
MOE undoubtedly needs many of these documents and records in order to fulfill its

177 Md. Code Ann., State Gov't, § 1O-621(b).

178 Md. Code Ann., State Gov't, § 10-621(a).
179 See chart of permit fees on page 9 of this petition.

55
responsibilities under the CWA. But, until MDE takes steps to upgrade and streamline its
system of recordkeeping, members of the public who request information from the agency will
continue to run into these high cost estimates and long delays. ISO These prohibitive costs can at
times make it impossible for public interest organizations, such as the Petitioners, to have access
to information. This defeats the goal of public participation in all aspects of the CWA.

b) INCOMPLETE AND INADEQUATE PIA RESPONSES

When MDE does produce public records pursuant to a PIA request, the agency often
produces only a fraction of what was requested or fails to produce a document that it should have
in its possession. For example, on September 20, 2007 PRK. asked MDE to produce the NPOES
permit, which includes the SWPPP, for the Mirant Morgantown Generating Station as part of a
general PIA request. PRK. was informed that MOE did not have a copy of the SWPPP in its
possession, and was directed to contact the facility itself to inquire about whether Mirant would
permit inspection of its SWPPP. MOE expressed doubts as to whether the public was entitled to
inspect the document, and stated its belief that the facility held discretion in determining who
could access the SWPPP. When challenged on the legality of their position, MOE eventually
worked with the Mirant Morgantown facility to get a copy of the SWPPP to PRK but the SWPPP
was not provided until February 2009. MOE would have saved both itself and the PRK a lot of
time and effort if, as a matter ofpolicy, it required permittees to provide a copy of the SWPPP to
the agency upon application for permit coverage. ISI

The Sassafras Riverkeeper encountered the same problem in March 2009 when she tried
to request a copy of the SWPPP submitted by the Alexander Gravel Pit facility in Massey,
Maryland. The Riverkeeper was told by MOE that the agency did not have a copy of the Plan in
its possession, and that she would have to request the document from the facility itself. Past
experience shows that permittees are resistant to the idea ofturning over copies of their SWPPPs
to environmental organizations because ofthe fear that the information contained in the SWPPP
will be used in subsequent litigation. MOE could easily remove this hurdle by retaining a copy
of these SWPPPs in each permittee's file, which would thereby promote greater public
participation in enforcing the CWA.

180 Although Petitioners' examples are limited to PIA requests handled by the Water Management Administration,
the agency's inefficient system ofrecordkeeping is a systemic problem. To ensure that the public is able to actively
participate in the enforcement of environmental laws other than the CWA, MOE's entire document management
sl.stem and method of handling PIA requests needs to be reevaluated and potentially overhauled.
I I This practice would also resolve one of the problems with permitting descnoed infra at page 25.

56
 Additionally, MDE's response to the aforementioned Waterkeeper Alliance PIA request
of June 17,2009 was inadequate. Waterkeeper Alliance, Inc. requested a range of documents
and records pertaining to MDE's permitting and enforcement processes. The request was
admittedly quite broad, but Waterkeeper Alliance demonstrated that it was willing to work with
MOE to narrow down the request to a manageable level. The Alliance suggested that MDE send
electronic versions of its records as one way of keeping costs on both sides to a minimum, and to
avoid MOE having to produce physical copies of the requested documents. Finally, after over
three months of back-and-forth, waiting, and conducting follow-up, the Waterkeepers received a
CD-ROM that contained ten files. The only records on the CD were compliance-related; there
was no data related to number of permits issued, number of expired permits, or number of
renewal applications received. Because it lacked a significant portion of the materials that the
Waterkeepers had requested, MOE's response was oflimited utility to the organization.

III. CONCLUSION

MDE has abdicated its delegated NPDES program responsibilities. This petition fulfills
the criteria of 40 CFR § 123.63(a)(4) by demonstrating that MOE's NPDES program is wholly
inadequate and, if the inadequacies are not corrected, the program must be administered by EPA.

EPA Administrator Jackson's emphasis on transparency and enforcement provides an

important framework for addressing the concerns raised by this petition. Petitioners hope that
this petition can serve as a vehicle for MOE to confront the deficiencies of the NPDES program
and identify the type and scope of solutions required to bring its program into compliance with
the CWA and its MOA with EPA.

The current status of Maryland's inefficient and under-performing NPOES program

should not be tolerated. It is time for serious and real change that will make the most ofthe new
initiatives and increased federal funding planned for Chesapeake Bay restoration efforts.
Although additional funding for the Bay is critically needed, it is imperative that EPA recognize
and address the underlying flaws in Maryland's NPOES program. The Waterkeepers
Chesapeake of Maryland and Waterkeeper Alliance recognize that Maryland's economic
problems, like those of states across the nation, are real and will not be resolved for some time.
At the same time, they believe that the weaknesses of Maryland's program impose far greater
costs on the citizens of the state than the short-term costs necessary to improve MOE's
performance.

The Chesapeake Bay is the heart of the state's economy, with commercial fishing of fin
and shellfish a critical part of that economy. Polluted water undermines tourism, fishing,
recreational boating, swimming, and the use of Bay waters for a myriad of other productive
activities. Neglect ofthe Bay literally makes people sick, destroys irretrievable natural
57
 resources, and costs taxpayers hundreds of millions in environmental damage and hann to public
health. An adequately funded, efficient and effective MDE with improved pemlitting,
enforcement and public participation is vilal to the success of any effort to save the Chesapeake
Bay.

Respectfully Submined,

Jan F. Barrett
'----'-"I rector
Environmental Law Clinic
University of Maryland School of Law
500 W. Baltimore Street
Baltimore, MD 21201-1786
(410)706-8074

Christine M. Meyers
Fellow
Environmental Law Clinic
University of Maryland School of Law
500 W. Bahimore Street
Baltimore, MD 21201-1786
(410) 706-5999

Daniella Einik*
Jim Getz*
Kcvin Leslie*
Chris Montaguc-Breakwell*
LiseHa Silvestri*

*Student Attorneys practicing pursuant to Rule 16 of the Maryland Rules

58