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 ofMaryland have watched as billions ofdollars have been spent on efforts to preserve, protect andrestore the waters ofthe Chesapeake Bay and its tributaries. Despite these intense efforts, theChesapeake Bay's prognosis is dire. We are losing our "national treasure.") Our Bay is ofcentral 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 thedecline of the Chesapeake Bay.2 However, none of them will succeed in restoring our Baywithout effective and consistent implementation ofthe underlying existing law, the Clean WaterAct ("CWA"). Unfortunately, for years Maryland has failed to adequately implement the CWA.

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

Petitioners further request that EPA evaluate the systematic failure ofMaryland toadminister 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 thCongo (2009); Preliminary Notice ofTotal Maximum Daily Load (TMDL) Development for the Chesapeake Bay, 74Fed. Reg. 47,792 (Sept. 17,2009); Executive Order 13508 Draft Strategy for Protecting and Restoring theChesapeake 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).

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Department of the Environment ("MOE") and Petitioners to develop solutions and remedies forthe problems identified by this petition and those that will be identified by EPA's review. IfMOE 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

enforcement of the program.4

Citizen petitions to withdraw state delegations are increasingly common due to acombination ofdebilitating conditions that occurred between 2000 and 2009. These conditionscreated powerful incentives for state governments to get by with only minimal effort toimplement their federally delegated authority. Funding shortfalls, weak and erratic enforcement,

and widespread failure ofpolitical 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 monitorthe adequacy ofstate programs aggressively, as Congress clearly intended.

President Barack Obama and EPA Administrator Lisa Jackson have pledged to improveCWA implementation and enforcement and have announced several initiatives to improve EPA'sperformance 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, theseextraordinarily important efforts will have significantly less chance ofsucceeding. Specifically,

new programs and the infusion ofdramatically expanded federal resources to accelerate the

restoration of the Chesapeake Bay will be undermined by Maryland's inability to effectivelyimplement and enforce the CWA at its most basic level- the permit structure.

The crisis in Maryland's CWA programs has developed over many years, involvingelected 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 ofMaryland's NPDES program must be addressed immediately.

A. PETITIONERS

Petitioners are Waterkeepers Chesapeake ofMaryland ("Waterkeepers"), a coalition oftwelve independent Waterkeeper programs,S as well as Waterkeeper Alliance.

41d.S These include the following programs: Anacostia Riverkeeper, Assateague Coastkeeper, Baltimore HarborWaterkeeper, Chester Riverkeeper, Choptank Riverkeeper, Lower Susquehanna Riverkeeper, Patuxent Riverkeeper,Potomac Riverkeeper ("PRK"), Sassafras Riverkeeper, Severn Riverkeeper, South Riverkeeper, WestlRhodeRiverkeeper.

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The member programs of Waterkeepers Chesapeake ofMaryland work to protect andrestore the Chesapeake and Coastal Bays and their tributaries by sharing resources andleveraging their individual strengths to expand each Waterkeeper's capacity for on the water,citizen-based enforcement of environmental laws. They patrol thousands ofmiles of tributariesand shorelines in their individual watersheds throughout the Chesapeake and Coastal Bays, andare at the forefront of advocacy for strong, enforceable permits, citizen activism and, whennecessary, vigorous enforcement of existing laws. These Waterkeepers spearheaded the Get theDirt Out program across the Chesapeake Bay watershed to protect the waterways from hannfulconstruction stormwater runoff. Since beginning the program in 2007, Waterkeepers trainedover two hundred local citizens to monitor construction sites in the Bay watershed to preventdamage caused by sediment-laden runoff from construction sites and land development.

Waterkeeper Alliance is a non-profit environmental organization that represents theinterests ofnearly 200 individual Waterkeepers around the world. The mission of the Alliance isto protect water resources on both a local and global level. In order to achieve its goal ofswimmable, fishable, and drinkable waterways worldwide, the Alliance relies on the grassrootsadvocacy oflocal Waterkeepers, including co-petitioners, Waterkeepers Chesapeake ofMaryland. In addition, the Alliance connects individual Waterkeeper organizations to each otherand supports them by providing expertise in science, law, strategic planning andcommunications.

B. LEGAL FRAMEWORK

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

In 1989, EPA and MDE entered into a Memorandum ofAgreement ("MOAn) delegatingthe CWA NPDES program to the State ofMaryland. The MOA establishes key requirements toensure 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.

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tenns and conditions of the MOA are requirements that MOE is obligated to implement, andfailure to do so constitutes a basis for de-delegation.s Specifically, under the MOA, MOE agreedto "create and maintain the legal capability and the resources required to carry out all aspects ofthe NPOES program." These aspects include the issuance, modification, reissuance, compliancemonitoring, and enforcement of all permits in the state. Maryland made a commitment toprovide 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 tomeet the federal requirements or fulfill its responsibilities under the MOA. EPA must de­delegate a state's program ifthe state fails to issue permits; fails to reissue permits in a timelymanner; issues pennits that do not confonn with federal requirements; fails to inspect facilities asrequired by law; fails to effectively enforce the program; fails to seek adequate penalties; or failsto comply with public participation requirements. 10

c. OVERVIEW OF THE PETITION

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

1. Permits:

MOE's pennitting procedures fail to fulfill the requirements of the CWA and its 1989MOA. 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 everbeing issued NPOES pennits. MOE also fails to reissue pennits in a timely manner as requiredby 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 ofSeptember 2007, which is the mostrecent data available on EPA's website, Maryland had not yet reached this 90% target. At thattime, current permits covered only 70.1% ofmajor 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 40 C.F.R. § 123.63.

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MDE issues pennits that do not conform to federal requirements. MDE does not evaluatethe effectiveness ofpermittees' 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 ofdefense

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 particularlytroubling regarding those facilities that discharge into impaired waters because stormwaterrunoff 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 complywith 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 ofAnimalFeeding 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% ofthese 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 ofMaryland and EPA, found that 17 percentofphosphorus, 11 percent ofnitrogen and 9 percent ofsediment loads to the Bay come from stormwater. Chemicalcontaminants from runoff can exceed the amount reaching local waterways from industries, federal facilities andwastewater treatment plants. Chesapeake Bay Program, "Stormwater", available athttp://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 athttp://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.comltoxic­waters/polluters/maryland. [hereinafter "NY Times Data"] The New York Times compiled data organized by stateof facilities regulated by the EPA and state agencies under the CWA's NPDES program. The New York Timesacquired the majority of its data from EPA's Enforcement and Compliance History Online (ECHO) database. Only

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data on inspections, 335 or 40% have not been inspected since 2005, and 287 ofthose facilitieshave at least one self-reported violation.

3. Enforcement:

MDE is required, under its MOA, to "maintain a program of timely and appropriateenforcement action in accordance with the CWA." A strong enforcement program is central toan effective CWA NPDES program. "Effective enforcement is based on the theoryofdeterrence, which holds that a strong enforcement program deters the regulated communityfrom violating in the first place, deters specific violators from further violations, and deters thepublic from violating other laws."IS MDE does not maintain such a program. According toMDE's own data, in 2008 it rendered 17% less compliance assistance and imposed 23% fewertotal enforcement actions than in 2007. In addition, according to the data compiled by the NewYork Times, out of239 Maryland facilities reporting thirty or more permit violations between2004 and May 2009, MDE has taken formal enforcement actions against only 27 facilities duringthis time period. In addition, MDE fails to follow-up self-reported violations with enforcementactions and fails to continue to enforce compliance measures it (MDE) previously directed thepermittees 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 penaltymaximums have been raised numerous times to adjust for inflation. MDE compounds thisstatutory inadequacy by failing to impose and/or collect fines in amounts that will effectivelydeter violators. According to the New York Times, MOE did not fine a single one of the over2,400 facilities in Maryland that reported violations between 2004 and May 2009. The penaltiesthat are available, and those that are generally imposed, do not act as a credible deterrent toviolators.

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

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5. Public Participation:

Maryland's program does not allow for adequate public participation in the pennitting orenforcement processes of the CWA. First, Maryland law does not give citizens an explicit rightof intervention in agency enforcement actions, nor does it allow citizens to comment on anyproposed settlements that might result. Secondly, MDE's inefficient record-keeping methodshamper 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 delegatedprogram undennine the goal ofprotecting and restoring the Chesapeake Bay and its tributaries.

D. SUGGESTED REMEDIES

Maryland's NPDES program is in critical condition. Petitioners recognize that MOE isresponsible for administering a wide range of important programs and they are required to dothis with too few resources. Despite the hard work of MDE employees, the chronic budgetshortfalls cripple critical functions that are needed to ensure that the state NPDES program isfully and effectively implemented. However, budget shortfalls alone do not explain the failure ofthe CWA NPDES program in Maryland and cannot be used as an excuse for all of itsdeficiencies. As is illustrated below, corrective actions can be taken to improve the programnotwithstanding the current economic conditions.

Unfortunately, many ofthe problems identified in this Petition are not new or unheralded.In 2002, at the request of Senator Brian Frosh, the University ofMaryland Environmental LawClinic 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 andenforcement. Five years later, the 2007 Maryland Transition Work Group Report onEnvironment and Natural Resources ("Transition Report,,)17 reached the same conclusionregarding staffmg and the resulting lack of inspections and enforcement.

Both the Frosh Report and the Transition Report identified a variety ofstrategies toaddress the under-funding ofcritical MDE programs, including the NPDES program. It is time

16 University ofMaryland School of Law Environmental Law Clinic, Keeping Pace: An Evaluation of Maryland'sMost Important Environmental Problems and What We Can Do to Solve Them (2002), available athttp://www.law.urnaryland.edulprograms/environment.17 Maryland Transition Work Group Report on Environment and Natural Resources, January 31,2007, available athttp://www.govemor.maryland.gov/docurnentsltransitionlEnvironment.pdf [hereinafter "Transition Report"].

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to reexamine and implement those suggested strategies in order to remedy the current state ofMaryland's NPDES program. IS A specific recommendation included increasing permit andfiling fees. Maryland regulations state that fees are based on the "anticipated cost ofmonitoringand regulating the permitted facility" and other costs the State incurs in managing discharges towaters of the State.19 Unfortunately, as the following chart vividly illustrates, the State permitfee structure is wholly inadequate to cover the cost ofadministering the program. Adjusting forinflation alone for the time period 1994 to 2009, the fees should be at least 50% higher thancurrent fees.2o However, the real cost ofpermitting, monitoring and regulating permittedfacilities is not captured by a simple inflation adjustment. The additional programmaticresponsibilities MDE incurred during these years, the increasing complexity ofprogramrequirements 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 ofSpecial Funds by consolidating similar activities and fund sources; index fees to the Consumer Price Index orongoing program costs; avoid the withdrawal ofGeneral Fund support; relax legislative caps and funding limits; andexpand the allowable uses offee revenue." Transition Report Page 8; "Recommendation #50: In cooperation withthe Attorney General, MOE and DNR should audit their enforcement programs, including existing policies forinitiating enforcement actions, assessing civil penalties, prosecuting criminal violations, and determining whenSupplemental Environmental Projects are appropriate. This review should evaluate how enforcement strategies canbest meet regulatory goals and whether statutory caps on the use ofpenalty funds for further enforcement activitiesshould 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 generaldischarge permit fees states, "Fees are based on the anticipated cost ofprogram activities related to management ofdischarge to the waters of this State." (emphasis added) COMAR 26.08.04.11, for discharge permit fees, similarlysays, "(1) The permit fee is based on the anticipated: (a) Cost ofmonitoring and regulating the permitted facility;and (b) Needs for program development activities related to management ofdischarge ofpoUution to waters of thisState."20 See inflation calculator at the U.S. Bureau of Labor Statistics, http://www.blsgov/datalinflation_calculator.htm.

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

Pennit type Initial feell Annual fee II Last date feeraised

Surface Water $50 - $20,000 $100 - $5,000 1993Discharge Pmt.

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

SWGenlDischarge Pmt.

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

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

Constructionactivity / SW

Water and $125 - $2,000 NA 1992sewerage

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 ofdischargeto 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 orrenew 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 thefermit) 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 ofCOMAR. 26.08.04.09-1 and 26.08.04.11; 2008 MDE Guide to Environmental Permits andApprovals, available at http://www.mde.state.md.uslPermitslbusGuide.asp (last viewed Dec. 2, 2009). Adjusting forinflation alone between 1992-94 and 2009, fees should be about 50% higher. See inflation calculator at the U.S.Bureau ofLabor Statistics, http://www.bls.gov/data/inflation_calculator.htm.

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COMAR 26.08.04.11, for discharge permit fees, similarly says, "(1) The permit fee isbased on the anticipated: (a) Cost ofmonitoring and regulating the permitted facility; and (b)Needs for program development activities related to management ofdischarge ofpollution towaters of this State."

Maryland should charge NPDES fees that recoup its actual costs for permitting andenforcement. Those who want the benefit ofdischarging pollutants into our waterways shouldcover the cost ofsuch discharges in advance. Taxpayers should not have to bear the financialburden ofcleaning up what could have been prevented. Increased permit fees will bring thefocus of the NPDES permit program back to making those who enjoy the benefit ofdischargingpollutants 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 minimumpenalties will emphasize the importance of these laws, act as an important deterrent andaddress the funding shortfalls.

• Update statutory penalties and adopt a chronic violator law:

Increased statutory penalties and a chronic violator law will place increasingconsequences on repeat violators again with the goal ofdeterring future violations.

• Permit all point sources:

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

• Make permitting and enforcement information available electronically:

Permitting and enforcement information should be made electronically available in aformat 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 handevery time there is a PIA request. Without more transparency, as the petition describes,citizens are deprived oftheir ability to hold polluters accountable themselves, which alsoeases the burden on the state.

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• Provide additional legal resources:

In order to draft legally sufficient and enforceable pennits, MDE staffmust have accessto adequate legal resources to review the pennits for legal sufficiency before they areissued. In addition, adequate legal resources are needed to tackle the backlog ofenforcement cases. This may require re-allocation ofattorney resources within MDE andthe Attorney General's office.

• Create an Ombudsman office in Maryland:

An Ombudsman office helps citizens navigate government departments and obtaininfonnation more quickly. These offices are successfully implemented in other states andwill help make MOE and the Maryland government more transparent.

• Maximize benefit to state ofcitizen suits:

When citizens wish to bring enforcement actions against violators, they must first provide60 day Notice to the violator, MDE and EPA. During that time period, ifMDE files anenforcement action in state court, there is a high likelihood that the Petitioners will beprevented from pursuing the lawsuit. This is called "over-filing". Currently, it is MOE'spractice to over-file in every case initiated by citizens. Allowing citizens to bring anumber ofcases each year will free up much needed MOE resources and serve as aneffective deterrent to potential violators.

• Re-invigorate EPA oversight:

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

25 Memorandum from Administrator Jackson: Improving Water Quality Transparency and Effective Enforcement ofCWA Requirements, July 2, 2009, available alhttp://www.epa.gov/compliance/datalresultslperformance/cwaljackson-Itr-cwa-enf.htrnl (last viewed Dec. 2, 2009).

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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 demonstratedbelow, 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 ofcompliance

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 effectivelydeter future violators. Fifth, Maryland's program does not adequately allow for publicparticipation 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"), MOEis 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 withthe legal requirements of the CWA, as well as its implementing regulations. In recognition of

the importance of these responsibilities, two ofthe criteria that the EPA Administrator is directedto 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 Part123, 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 notadequately fulfill these duties because the agency neglects to issue NPDES permits todischargers when it is legally required to do so, issues permits that do not meet the legalstandards set out in the CWA, and fails to reissue numerous expired individual and generaldischarge 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).

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state that MDE is obligated to expeditiously draft, circulate, and issue NPDES permits.29

According to 40 C.F.R. § 123.63(a)(2)(i), a state's failure to issue permits is a "failure to exercisecontrol 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 itsNPDES program. In spite of its legal obligations, MDE neglects to issue NPDES permits forequipment 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 ofall abandoned mined areas in Maryland. Under this program, MOE operates"dosers," or devices to neutralize the acidity of the mine drainage, at numerous abandoned minesin Western Maryland. While all of these dosers are point sources discharging pollutants intowaters 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. TheMcDonald 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 thosedischarges enter a stream that empties into George's Creek, a tributary of the North BranchPotomac 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, inAugust 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 fishkill occurred in Georges Creek, concurrent with a plume of orange AMD that was dischargedfrom the doser.34 This change in discharge decimated four miles ofGeorges Creek in less thanone 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 AbandonedMines Lands Division.32 Constance A. Lyons, MDE, The Tale of McOonald Mine 1 (2006).33/d.34/d. at 5.3S /d. at 8.

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

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

Since an NPDES permit will require the doser's discharge to meet technology-based andwater-quality-based standards, obtaining a permit will improve the quality ofGeorge's Creekand the Potomac River watershed.

2. Legally Deficient Permits

EPA must withdraw a state's NPDES program when permits are repeatedly issued that donot conform to federal legal requirements37 and when the state fails to properly administer itsNPDES program as promised to EPA in its MOA.38 The MOA requires MDE to "[c]reate andmaintain the legal capability ... to carry out all aspects ofthe NPDES program" and to properly"[a]dminister the NPDES Permit Program to include issuance ... ofall permits in the State.,,39MOE fails to meet these requirements by failing to consider impaired water bodies and TMDLsbefore issuing permits; failing to review Stormwater Pollution Prevention Plans ("SWPPPs")before issuing permits; including illegal provisions in its Concentrated Animal FeedingOperations ("CAFOs") permit; and issuing a variance for an industrial discharger thatcontravenes 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).

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a) TMDL FAIL.URES

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

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

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

(i) To a new source or a new discharger. if the discharge from its construction oroperation will cause or contribute to the violation of water quality standards, theowner or operator of a new source or new discharger proposing to discharge into awater segment which does not meet applicable water quality standards or is notexpected to meet those standards even after the application of the effluent limitationsrequired 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 tomeet 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 ofconditionscannot ensure compliance with applicable water quality requirements ofall 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 ofthe amount of a pollutant, or property ofa pollutant, from point, nonpoint, andnatural background sources, including a margin ofsafety, that may be discharged to a water quality-limited waterbody. Any loading above this capacity risks violating water quality standards:'EPA, U.S. EPA NPDES Permit Writers' Manual 104 (December 1996), available athttp://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 ofevery proposed surfacewater discharge on the quality of the receiving water. Water quality goals for a water body are defined by Statewater quality standards. A permit writer may find. by analyzing the effect ofa discharge on the receiving water. thattechnology-based permit limits are not sufficiently stringent to meet these water quality standards. In such cases, theCWA and EPA regulations require development of more stringent, water quality-based effluent limits (WQBEL)designed to ensure that water quality standards are met." Id.

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or interstate agency has perfonned a pollutants load allocation for the pollutant to bedischarged, must demonstrate, before the close ofthe public comment period, that:

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

(2) The existing dischargers into that segment are subject to compliance schedulesdesigned to bring the segment into compliance with applicable water qualitystandards. The Director may waive the submission of information by the new sourceor new discharger required by paragraph (i) of this section if the Director determinesthat the Director already has adequate information to evaluate the request. Anexplanation 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 thischapter.

Thus, MDE must assure compliance with applicable water quality standards before

issuance ofpennit coverage to a permit applicant. It is MDE's affinnative and mandatory dutyto undertake the above two-step analysis necessary to identify the need for and nature ofWQBELs, 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 requirementsof: (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. § I22.4(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 permitmay be issued to a new discharger if the discharge will contribute to the violation of water quality standards. Thiscorresponds to the stated objectives of the CWA 'to restore and maintain the chemical, physical, and biologicalintegrity of the nation's waters."').46 COMAR 26.08.04.02(A)(I)(b).

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TMDL for the pollutant; (2) the TMDL has a WLA for the applicable discharger; (3) all otherpoint sources that discharge similar pollutants ofconcern 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, MOEmust 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 wherenecessary to protect water quality, but state agencies are prohibited from issuing NPDES permitsfor discharges to these watersheds except in certain limited circumstances.

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

Unfortunately, MOE fails to ensure compliance with WQS prior to issuing permits. Itrepeatedly fails to conduct the analyses necessary to determine whether WQBELs are required,whether discharges will meet applicable TMOL WLAs, or whether impaired receiving watersprevent 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 dischargedat a level which will cause, have the reasonable potential to cause, or contribute to an excursion above any Statewater quality standard, including State narrative criteria for water quality." 40 C.F.R. § 122.44(d)(I)(i).

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This problem is compounded by the fact that there are over 540 impaired water bodiesthroughout the State ofMaryland.5o Ofthose impaired waterst only 110 currently have anapproved TMOL.51 Therefore over 400 water bodies in Maryland are impaired for pollutantsand MOE has no idea how much ofthose pollutants can be discharged into the water bodieswithout exceeding WQS. Thus in many cases t in order to ensure compliance with WQS, MOEcannot safely permit any discharges of those pollutants. At a minimumt MDE must examine anyapplicable impairments and TMOL WLAs, before issuing a discharge permit.

MOE not only fails to examine the specific impairments of receiving waters beforeissuing discharge permitst 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 WQSand TMOLs, MOE simply allows the permittee to determine these requirements for themselvesafter permit coverage begins. However, according to the federal regulations outlined abovet

MOE cannot transfer its responsibility to ensure compliance with WQS and TMOLs to thepermittee.

Before permit coverage begins, MOE is obligated to specify requirements for thepermittee that ensure compliance with WQS. IfMOE is not aware of the specific actions thepermittee will take to ensure compliance with WQS and WLAs, then it cannot ensurecompliance before issuance of the permit. This obligation is repeatedly ignored by MOE, andthe 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 the2008 Integrated 303(d) List. Category 4a includes surface waters that are still impaired but have a TMDL that hasbeen completed or submitted to EPA. Category 4b includes surface waters impaired for one or more water qualitystandards but not needing a TMDL because other pollution control requirements are reasonably expected to result inthe attainment of water quality standards 00 the near future. Category 5 includes waterbodies that may require aTMDL. MDE, The 2008 Integrated Report of Surface Water Quality in Maryland (2008), available athttp://www.mde.state.md.us/assets/documeot/2008_IR]arts_A_thru_E%281%29.pdf[hereinafter "2008 IntegratedReport"].SI After several environmental groups sued EPA, EPA Region III and MDE entered into a Memorandum ofUnderstanding (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 30percent of that commitment. Maryland's 2008 Integrated Report of Surface Water Quality indicates that there arestil1393 water bodies that state officials believe may require a TMDL. 2008 Integrated Report at 9.

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I. CAPO Permit:

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

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

The CAFO general permit also fails to provide meaningful monitoring requirements andwater quality based operational limitations. Specifically, the pennit fails to monitor thegroundwater in the area of the pennitted facilities.55 Approximately 900,000 Marylanders obtaintheir 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 thepermit requires CAPO or MAPO owners to monitor how severely they are contaminatinggroundwater or to take steps to minimize such contamination. The failure to monitorgroundwater 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) (DecemberI, 2009) [hereinafter "CAFO Permit"]; Animal feeding operations or "AFOs" are facilities where animals areconfined and fed for a total of45 days or more in any 12 month period and crops are not sustained in the normalgrowing season over any portion of the facility. 40 C.F.R. § 122.23(b)(I); Waterkeeper Alliance, AssateagueCoastkeeper, Lower Susquehanna Riverkeeper and C&B Schelts are currently appealing the final permit to theCircuit Court for Baltimore City. Despite this pending appeal, MOE announced that the final permit was issued onDecember 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 withexisting 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 arewithin the scope of the CWA. See. e.g.• Hernandez v. Esso Standard Oil Co., 599 F.Supp.2d 175, 181 (D. PuertoRico 2009).56 Betty J. Dabney, Technical and Regulatory Servs. Admin., MDE, Improved Reporting and Access to DomesticWell Water Quality Data Through Web-Based Automation 10, available athttp://www.mde.state.md.uslassets/documentlwatersupplylBettyDabney.pdf.

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CWA's proscription that NPDES pennits may only be issued "where such permits ensure thatevery discharge ofpollutants will comply with all applicable effluent limitations and standards.57

The general permit also presumes that facilities' nutrient management plans orcomprehensive nutrient management plans comply with permit requirements without MDEactually reviewing them first. 58 The permit requires that nutrient management plans are createdby a nutrient management planner certified by the Maryland Department ofAgriculture("MDA") and meet the requirements of Maryland regulations.59 However MDE never reviewsthe plans to ensure that they do in fact meet these requirements. Essentially MDE is operatingupon the good faith belief that nutrient management planners certified by MDA always designnutrient management plans and comprehensive nutrient management plans that comply with allapplicable effluent limitations, water quality standards and other federal and Marylandregulations. By relying on these assumptions, MDE is not fulfilling the CWA's mandate that itassure compliance with all applicable water quality standards before issuing a permit.60

Similarly, the permit fails to address waters impaired for agriculture-related pollutants forwhich no TMDL has been issued. There is no indication in the permit that MDE conducted therequired analysis to determine whether more stringent limitations are necessary for discharges tothese impaired waters. Furthermore, in many cases MDE may not grant coverage at all toCAPOs that discharge to watersheds impaired by excessive agriculture-related pollutants. Forthese watersheds, MDE must first complete a TMDL with WLAs for agricultural stormwater,and incorporate those WLAs into the terms ofthe pennit. Until then, it may not grant coverageto 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 thegeneral permit. A comprehensive nutrient management plan "addresses all aspects of the Animal Feeding Operationincluding animal waste handling, nutrient management, and conservation practices." CAFO Permit at 4. A MAFOis required to compile a nutrient management plan and conservation plan when applying for coverage under thegeneral permit. The plans shall "together take into account all animal manure or waste nutrients associated withanimal production" and "ensure that appropriate manure management measures are used to store, stockpile andhandle 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 nutrientmanagement planner certified by the Maryland Department of Agriculture (MDA) that meets all requirements ofCOMAR 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 andwater 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 relevantpart. Friends a/the Wild Swan v. U.s. EPA, 74 Fed. App'x. 718,723 (9th Cir. 2003).

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ll. Maryland Airport Permit:

In August of2009, MDE issued a draft individual permit authorizing Bauserman Service,Inc. to discharge construction stormwater from the Maryland Airport runway expansion projectin Charles County. This construction project will take place on 95.7 acres ofproperty, andstormwater runoff will discharge directly into the Mattawoman Creek, a tributary of the Potomac

River.

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

Unfortunately the draft permit does not conform to the requirements of the CWA or itsimplementing regulations. It fails to ensure that discharges will not exceed WQS, and therebythreatens both the health of the vulnerable Mattawoman Creek, and the livelihoods of those whodepend upon it for employment.

The terms ofthe draft permit establish that MDE did not conduct the required analysis ofreceiving water impairments and WQS. Section V of the draft permit states that "[i]fthedischarge covered by this permit enters a water with an established or approved TMDL, thepermittee must implement measures to ensure that the discharge ofpollutants from the site is

consistent with the assumptions and meets the requirements of the approved TMDL, includingany specific WLA that has been established that would apply to the discharge."63 However thisprovision is wholly insufficient and does not release MDE of its legal obligations. If anythingthe generality of this provision, and the fact that the Mattawoman Creek does not have anyapproved TMDLs, indicate that MDE did not even review the 303(d) list for specificimpairments to the receiving water at issue.

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

62 American 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 athttp://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).

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implementing measures necessary to ensure compliance with TMDLs, after permit coveragebegins. Not only does Mattawoman Creek lack a TMDL for nutrients, but it is impossible forMOE 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'sMunicipal 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 fordetermining 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 thepermit. In the permit, MOE requires Montgomery County to develop its own TMOLimplementation plans, and gives the County one year from the permit issuance to submit them toMOE for review and approval. The permit gives the County the discretion to develop its owncompliance benclunarks and monitoring requirements. To ensure that WQS are met, MOEshould 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 requirecompliance with water quality standards.65 EPA's Environmental Appeals Board rejectedportions ofEPA Region Ill's MS4 Permit for the District ofColumbia because the permit'sterms failed to ensure that urban stormwater discharges would comply with water qualitystandards.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 ofreceiving water bodies. MDE must replace goal­oriented statements in the permit with compulsory language and deadlines in order to ensurecompliance with WQS. For example, the Watershed Assessment section of the permit currentlycontains 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 MacThornton are currently appealing the permit to the Circuit Court of Baltimore City. The final permit has not beenissued 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).

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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 pennitfail 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 forBMPs to "restore" impervious surfaces in furtherance ofWQS compliance, these BMPs need tobe 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 thatthose BMPs will ensure compliance with WQS.67

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

According to the EPA NPDES Pennit Writers' Guide, "[t]he goal of the permit writer isto derive permit limits that are enforceable, adequately account for effluent variability, consideravailable receiving water dilution, protect against acute and chronic impacts, account forcompliance monitoring sampling frequency, and assure attainment of the WLA and water qualitystandards.,,69 MDE fails to meet these requirements by issuing pennits that do not incorporateapplicable 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 compliancewith WQS and WLAs as previously discussed, but the CAFO permit also violates federal lawsand the MOA by allowing a class ofAnimal Feeding Operations ("AFOs") 70 to store poultrylitter 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, 850F.2d 182 (4th Cit. 1988) (upholding EPA's objection to a state issued NPDES pennit that failed to include adequatemonitoring 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 of45 days ormore in any 12 month period and crops are not sustained in the normal growing season over any portion of thefacility. 40 C.F.R. § 122.23(b)(I).

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issuance of inadequate CAFO permits, in violation of the MOA, fits the criteria for de-delegation

ora State's NPDES program under federal regulations.71

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 AFOsfrom permit coverage, the permit fails to comply with the CWA's goal ofeliminating

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 areasexposed to rainfall are considered to have a liquid manure handling system. Thiswould include those operations that remove liner from the confmement area andstockpile or store it in remote locations. Permining authorities may authorize somelimited period of temporary storage of liner of no more than 15 days that would notresult 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). Oncethe liner is stockpiled beyond this temporary period the uncovered stockpile wouldconstitute a liquid manure handling system and the lower threshold for chickens at30,000 ... would be applicable to these operations.73

Therefore, an AFO with manure left uncovered for over 15 days becomes a CAFO at30,000 chickens rather than 125,000 and therefore requires a NDPES permit.74 In addition, a

presumption should exist that long-term uncovered storage ofmanure 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 tothe Chesapeake Bay Program animal manure and poultry litter contribute about halfof the Bay

watershed's agricultural nutrient load.75 MDE's final CAFO permit, issued in violation of federallaw and regulation and the MOA, fits the criteria for the de-delegation ofa State's NPDESpermit 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 Feeding9perations 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).

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c) STORMWATER POLLUTION PREVENTION PLAN FAILURES

MDE violates federal regulations when it fails to consider whether stonnwater pollutionprevention plans ("SWPPPs") proposed by regulated entities adequately control stormwaterpollution before issuing permits to those entities. Scientific research repeatedly identifiesstonnwater pollution as a major problem affecting the Chesapeake Bay and its tributaries.77 Notonly is stonnwater the "fastest growing fonn of Bay pollution,,,7s but it is also the only major

source ofpollution in the Chesapeake Bay watershed that is actually increasing.79

When MDE issues general and individual permits for industrial, marina, and MS4stonnwater discharges that include requirements for SWPPPs, they must consider the efficacy ofthe 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 ... theregulatory 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 NPDESregulations80 and "shall not begin the processing of a permit until the applicant has fullycomplied with the application requirements for that pennit."sl However, MDE routinely issues

permits without even reviewing the proposed SWPPPs. As discussed previously on pages 15-18ofthis petition, it is impossible for MDE to ensure compliance with WQS and WLAs iftheydon't know the basic details of the permittees' SWPPPs before issuing permit coverage.

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

n See Tom Schueler, Bay-Wide Stonnwater Action Strategy: Recommendations for Moving Fonvard in theChesapeake Bay 6-7, available at http://www.cbesapeakestormwater.net/storage/admin-files/csn-source­documentsIFinal%20Baywide%20StormwaterOIo20Action%20Strategy.pdf; See also Tom Zolper, WorseningStonnwater 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 athttp://www.cbf.orglPage.aspx?pid=1304.78 Transition Report at 13.79 Chesapeake Clean Water and Ecosystem Restoration Act of2009, S. 1816, Ill th 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).

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the primary permit condition used to address discharges of pollutants in a facilitiesstormwater is a pollution prevention plan. The development and implementation ofa

site-specific stormwater pollution prevention plan is considered to be the mostimportant requirement of the EPA and State issued stormwater general permits. Site­specific stormwater pollution prevention plans allow permittees to develop andimplement "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 iseffectively 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 noteven 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 VelsicolChemical Corporation, the previous name of the plasticizer-manufacturing facility now operatedby Genovique.84 In the pennit, MDE required the company to "develop a stonnwater pollutionprevention plan for each area ofthe facility with point source discharges of stonnwaterassociated 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 thesespecific SWPPP requirements, MDE gave them one year from the date the pennit was issued todevelop the SWPPP. Furthennore, the SWPPP did not become effective until a year and a halfafter the issuance ofthe pennit. Obviously, MOE did not review the adequacy ofthe facility'sSWPPP prior to issuing the pennit and thus abdicated its pennitting responsibilities.

In 2009, MDE issued a new individual pennit to the Mirant Morgantown GeneratingStation in Morgantown, Charles County, Maryland. Although Mirant was required to develop aSWPPP by the effective date of the pennit,86 MDE did not review the SWPPP prior to issuanceofthe pennit. In fact, provision X.I.c. of the Mirant pennit states that "[i]fthe plan is reviewedby the Department, the Department will notify the pennittee.',87 Without a thorough and rigorousevaluation ofthe SWPPP in conjunction with the other components ofthe pennit, MOE and thepublic 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).

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MOE cannot be sure that the Facility has adequate spill controls in place to contain and respondto leaks or spills, whether the Facility's preventive maintenance program and good housekeepingpractices 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, haveturned up numerous SWPPP violations at facilities permitted by MDE.

For example, on July 10, 2009 EPA ordered Anne Arundel County to come intocompliance with its general permit for Stormwater Associated with Industrial Activity and itsMS4 Permit within 30 days. EPA found the SWPPPs on file at three ofAnne Arundel County'sfacilities did not meet the requirements of the permit. EPA found that "by failing to ensure theproper development and implementation ofpollution plans, including maintenance of stormwatercontrols and applying best management practices at Sites 1, 2, and 3, Respondent has violatedPart 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, Marylandthat recycles asphalt. The Lafarge Blacktop Plant is covered under the General Discharge Permitfor Stormwater Associated with Industrial Activity, a permit that requires a Swppp.89 Itdischarges into a tributary ofCabin Branch Creek that drains into the Anacostia River. TheAnacostia 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 thedischarge permit already began, MOE found that part of LaFarge's SWPPP could not beproduced, and the remaining part did not conform to the requirements of the permit.91 On June25,2009, in response to a public complaint, MDE again inspected the Lafarge LandoverBlacktop Plant. The inspection revealed that the SWPPP was both inadequate as well as notimplemented 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 planbe obtained, reviewed and kept on site" 03/28/2002 Inspection Report for Permit 00-MM-9825 "LaFargeBranchville Blacktop Plant". "The [pollution prevention] plan needs to be brought up to date to reflect the currentoperations for the facility...."06/17/2003 Inspection Report for Pennit 00-MM-9825 "LaFarge Branchville BlacktopPlant".

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MDE discovered that materials had been placed in areas likely to pollute and liquid asphaltremover was used in areas likely to result in discharges into storm drains.

At Aggregate and Dirt Solutions (uADS"), a concrete and wood waste recycling plantalso in Capitol Heights, Maryland, MDE again failed to check the SWPPP before issuing thepermit. Discharges from ADS also drain into the tributary ofCabin Branch Creek that drainsinto the Anacostia River. Its coverage under the current General Discharge Permit forStormwater Associated with Industrial Activities began on April 24, 2003.92 MDE conducted anumber of site inspections between May 2007 and August 2009,93 many in response to repeatedand numerous public complaints that the facility was discharging pollutant-laden stormwater intoCabin Branch. The inspection that took place on May 25, 2007, over four years after permitcoverage began, revealed that the facility was operating without a SWPPP. MDE againinspected the facility in December 2007 and ADS could not produce the SWPPP. Finally inJanuary 2008, MDE found the facility in compliance with a SWPPP on site. However, follow-upinspections in 2009 revealed many violations, including that the SWPPP did not conform toNPDES permitting requirements.94 MDE conducted a final inspection in September 2009 andfound the facility in compliance. IfMDE had attempted to review the SWPPP for adequacybefore issuing permit coverage to the facility back in 2003, they would have realized that aSWPPP did not exist, and could have prevented over four years ofstormwater dischargesunregulated by pollution prevention measures. Furthermore, MDE has not imposed anypenalties on the facility despite these years ofnoncompliance.

92 MDE letter of acceptance of ADS Notice of Intent to be covered under Geneml Discharge Permit for StormwaterAssociated with Industrial Activities, dated April 24, 2003. Coverage under this permit extended through November30,2007, at which time coverage was administmtively continued by MOE. At discussed later, this permit remainsexpired 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, 2007and 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 ofTitle 9, Environment Article, annotated Code of Maryland." 05/25/2007Inspection Report for Permit 02-SW-I725 "Aggregate and Dirt Solutions". On December 20,2007 MOE inspectedthe facility and the SWPPP could not be produced. Therefore MDE found the site in non-compliance. 12/20/2007Inspection Report for Permit 02-SW-1725 "Aggregate and Dirt Solutions". A MOE inspection on January 31,2008found the site in compliance, however follow-up inspections on June 16,2009 and July 1, 2009 found the facility tobe in non-compliance. Both 2009 inspection reports noted that the SWPPPs did not conform to NPDES permitrequirements. 1/3112007 Inspection Report for Permit 02-SW-1725 "Aggregate and Dirt Solutions". 06/16/2009Inspection Report for Pennit 02-SW-1725 "Aggregate and Dirt Solutions". 07/0112009 Inspection Report for Permit02-SW-I725 "Aggregate and Dirt Solutions".94 Other violations included a SWPPP without containment training requirements; portions of the silt fence missingor in need ofrepair; petrolewn spills; chemicals stored in exposed areas; no documentation of the stormwater pond'sadequacy for a site of that size; a sprinkler system used to control dust resulted in discharges into a storm dmin; andno systems were in place to prevent stormwater from leaving the site and reaching the storm drain.

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Mitigating stonnwater pollution through effective SWPPPs is crucial to the health of theBay. As stonnwater runs over roads, parking lots, rooftops, and compacted land, it washeschemical and microbial contaminants into the watershed. Additionally, stonnwater dischargeposes a physical hazard to aquatic habitats and stream function, owing to the increase in watervelocity and volume. The Chesapeake Bay Program, which includes as partners the state ofMaryland and EPA, found that 17 percent ofphosphorus, 11 percent of nitrogen and 9 percent ofsediment loads to the Bay come from stonnwater. Chemical contaminants from runoff canexceed the amount reaching local waterways from industries, federal facilities and wastewatertreatment plants.95 MDE's failure to ensure adequate SWPPPs in NPDES pennits preventssufficient 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 asdiscussed previously, but it also set effluent limitations in the permit that exceed national effluentlimitation guidelines ("ELGs"). Under CWA implementing regulations, a facility must obtain afundamentally-different factors ("FDF") variance to be exempt from national ELGs.97 On May2, 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 requirethe State agency to acquire EPA approval of the FDF variance, issue a draft permit, and considerpublic comments before a state agency issues a permit based on the FDF variance.99 The FDFvariance petition was submitted in 1988 and EPA has not since issued a detennination regardingthis request, which was confirmed by a FOIA request as well as a recent phone conversation withan EPA employee. However, MDE gave Genovique the benefit of the variance when it issued itsNPDES pennit in 2002 and it is still in effect since a new permit with more stringent limits hasnot been issued yet.

Thus, MOE failed to comply with federal requirements when it issued Genovique'spermit based on the FDF variance petition by neither acquiring EPA approval of the petition norfulfilling necessary procedures.

9S Stormwater - Bay Pressures - Chesapeake Bay Program,http://www.chesapeakebay.net/stormwater.aspx?menuitem;:;19515.96 Other examples ofnonexistent and/or inadequate SWPPPs in permits issued by MDE can be found infra at p. 41.97 40 C.F.R. § 125.31.98 See supra note 84.99 40 C.F.R. § 122.62.

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3. Expired Permits

When the CWA was passed in 1972, it declared as a national goal "that the discharge ofpollutants 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 wouldincorporate 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 constitutegrounds for revocation of the authority delegated to it by EPA. Implicit in this regulation is thestate's duty to reissue permits that have expired. When MOE signed the MOA with EPA in 1989it explicitly pledged to "administer the NPDES permit program to include... [the] reissuance...ofall 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 theMOA, MDE also agreed that "[e]xpiring NPDES permits shall be reissued on or before their dateofexpiration and if such timely reissuance is not possible, MOE will reissue those permits asexpeditiously as possible."I04 By allowing permits to remain in force for years beyond theirexpiration dates,loS MDE is not fully complying with the requirements of40 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 thedevelopment ofnew 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 delegatedauthority. To ensure that these states were making progress in reducing their backlogs, EPA seta goal stating that by the year 2004, up to date permits should cover 90% ofthe major and minordischargers in every state. As of September 2007, which is the most recent data available onEPA's website, Maryland had not yet reached this 90% target. While Maryland was by nomeans 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 ofexpiration.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).

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pennits covered only 70.1 % ofmajor facilities in the state. Maryland came closer to meetingEPA'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 failingto fulfill its obligations under its delegated authority. General pennits regulate entire categoriesofdischarges 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 iscritical that MOE keep these permits up to date. The five-year pennit tenn reflects EPA'slongstanding judgment that NPDES pennits should reflect current scientific understanding,current best management practices, and current technological controls. 108 Presently the facilitiescovered by MDE's expired general permits are operating under outdated regulatoryrequirements. :MDE is required to update its general permits once they have expired but in somecases has failed to do so. The following examples illustrate this problem.

MOE's current General Discharge Permit for Stormwater Associated with IndustrialActivities became effective on December I, 2002 and expired on November 30, 2007. :MDEstates on its website that it does not believe that the permit will be reissued until mid-2010,nearly three years after its date ofexpiration. This general permit covers at least 1,600facilities, J09 including those that engage in manufacturing, mining, and hazardous wastetreatment. Its scope also encompasses landfills that receive industrial waste, recycling facilities,steam electric power generating facilities, transportation facilities that conduct vehiclemaintenance, sewage treatment works above a certain capacity, and any construction activity thatdisturbs over an acre. IIO Stormwater that flows out of these facilities "may contain or mobilizehigh levels ofcontaminants, such as sediment, suspended solids, nutrients, heavy metals,pathogens, toxins, oxygen-demanding substances, and floatables."J II When this pollutedstonnwater enters local bodies ofwater, it can change the physical, biological, and chemicalcomposition 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 hasmade 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 ChesapeakeBay 12 (2008), available at http://www.chesapeakestormwater.netistorage/admin-fiIes/csn-source­documentsIFinal%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.

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unhealthy environment for aquatic organisms, wildlife, and humans. I12 Accordingly, thesestormwater discharges need to be carefully regulated and their harm mitigated to the greatestextent possible. All the facilities in Maryland that are covered by this general permit continue todischarge potentially harmful stormwater under the terms ofan expired permit. Assuming thatthe permit is reissued in mid-20l0, as projected by MOE, the regulatory requirements containedwithin 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 notbeen renewed since that time. According to EPA, "polluted stormwater runoff is commonlytransported through Municipal Separate Storm Sewer Systems ("MS4s"), from which it is oftendischarged untreated into local water bodies.,,113 One study cited in the Federal Register

concluded that MS4s "draining runoff from residential, commercial, and light industrial areascarried more than 10 times the annual loadings of total suspended solids ("TSS") than dischargesfrom municipal sewage treatment plants that provide secondary treatment. ,,114 MS4s can convey

polluted stormwater as well as non-stormwater wastes and wastewater. These illicit dischargesinto 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 toaccept, 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 andgrease, 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 andsmall, 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 toand from the small municipal separate storm sewer systems in approximately 60 towns and citiesacross 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 notyet been reissued. The Marina permit became effective on January 3, 2002 and expired onJanuary 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 ControlProgram 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 ControlProgram 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.

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areas involved in boat maintenance, boat or equipment cleaning operations, and wastewater-to­surface water discharges of treated bilge water for the more than 600 marinas in Maryland. I18

Marinas involve potential discharges ofpollutants that include"...dust from hull maintenanceoperations, solvents from engine repair shops, petroleum from careless fueling practices, sewagedischarges from boats and heavy metals from antifouling paints. These pollutants may bedeposited directly into waterways or they may be carried in by stormwater runoff..,119 Marinasactually outnumber industrial dischargers in certain watersheds. For instance, the areasurrounding 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 whenMDE plans to reissue this outdated and expired permit.

b) EXPIRED INDIVIDUAL DISCHARGE PERMITS

MDE is also responsible for issuing and reissuing individual NPDES permits todischargers who are not covered by one of the agency's general permits. Individual NPDESpermits are categorized as either major or minor. According to EPA, "major facilities" arefacilities that have "design flows greater than one million gallons per day and facilities with EPAand State approved industrial pretreatment facilities" and facilities designated as industrialdischargers. Since major facilities have higher levels ofpollutant discharges, they are subject tomore stringent reporting requirements. Minor facilities "must have a municipal discharge oflessthan one million gallons per day, must not have an industrial waste pretreatment program, andmust not be designated as an industrial discharger by the regulatory authority." I21 Both classesofindividual permits, when drafted, must consider the unique characteristics of the facility atissue, 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 marinaprogram, represent "20 percent of the marine facilities in the state." 126 is 20 percent of630, meaning that there areroughly 630 marina facilities in the state as documented in this press release. ··Anchor Yacht Basin BecomesMaryland's 126th Certified Clean Marina" (March 7, 2008), available athttp://www.dnr.state.md.us/dnrnews/pressrelease2008/030708.html.119 Md. Dep't ofNatural 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 RiverMarina, Mayo, Ridge Marina, South River Landing, Hillsmere Community121 EPA, 2007 Annual Noncompliance Report National Pollutant Discharge Elimination System Non-Majors,Calendar Year 2007 Final Report I (July 2,2009).

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As mentioned previously, a permit writer must be aware ofwhether the discharges areinto impaired waterways and whether there is a TMDL for the receiving waterbody. The CWArequires Maryland to develop TMDLs for impaired water bodies. A TMDL is the upper limit ofa given pollutant allowed in those types ofwaters. A waterbody can be impaired for one ormultiple pollutants. Once a TMDL is established, the state must revisit the permits ofall of thefacilities that discharge into the water body, ramping down the amount ofwaste that each entityputs into the water. Ifthere is an impairment or TMDL, it must be considered when developingthe terms and conditions of the permit. 122 Accordingly, individual permits must be reissued in atimely manner so that they may incorporate recent community concerns, advances in scientificknowledge, as well as account for changes in the local environment. The EPA's NPDES PermitWriters' Manual anticipates that water quality standards will playa key role in shaping theNPDES permitting process through the water-quality based approach. 123 However, for obviousreasons, administratively continued permits cannot incorporate water quality standards that wereenacted after the permit's original issuance date. This means that the facilities discharging underthese expired permits may be fully complying with the permit's standards, and yet may still befurther degrading an already impaired waterbody. Examples ofboth major and minor facilitiesthat are allowed to operate under outdated and expired permits include the examples below.

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

122 "Permit writers must consider the impact ofevery proposed surface water discharge on the quality of thereceiving water. Water quality goals for a water body are defined by State water quality standards. A permit writermay find, by analyzing the effect ofa discharge on the receiving water, that technology-based permit limits are notsufficiently stringent to meet these water quality standards. In such cases, the CWA and EPA regulations requiredevelopment ofmore stringent, water quality-based effluent limits (WQBEL) designed to ensure that water qualitystandards 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-basedapproach 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).

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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 in2002, both of these MS4s remain subject to the 2002 permit provisions that do not incorporatethe applicable TMDL WLAs. Permit writers, when drafting new permits, must take into accountany 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 neglectedto impose new effluent standards that are necessary to restore the health of these watersheds. Inlight of the county-wide scope of these permits, the impairments of the receiving waters, and thesignificant potential for harm posed by untreated stormwater, it is critical that these permits beupdated at least every five years.

The New Page Corporation operates a paper mill in Luke, Maryland that discharges intothe North Branch of the Potomac River and the Savage River. This facility operates under amajor individual permit that expired on April 30, 2006. The Potomac Riverkeeper has concernsabout 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 pastits 2007 expiration date. Genovique is a manufacturer oforganic chemicals used in plasticizersand synthetic lubricants. The Chester Riverkeeper conducted water quality sampling in the fallof2007 and found high levels ofphosphorus from the facility's outfall 001 and high levels ofBEHp125 from outfall 002. Genovique's most recent NPDES permit, granted in 2002, does notauthorize the discharge ofphosphorus from outfall 001 or the discharge ofBEHP from outfall002. In 1996 MDE designated the Upper and Middle Chester River as impaired due to excessivenutrients (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 MiddleChester River. 126

Another example of a major source with an expired permit is the Upper Potomac RiverCommission'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 plasticsmanufacture and recycling. Animal studies have shown that there is a reasonable probability that it is a humancarcinogen. 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 TotalMaximum Daily Loads ofNitrogen and Phosphorous for the Upper and Middle Chester Rivers in Kent and QueenAnne's Counties, MD (Nov. 28,2006), available at http://www.mde.state.md.us/assets/documentlchester-ps­techmemo_013106_fmal.pdf.

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waste and municipal sewage from Westernport and Luke, Maryland as well as Piedmont, WestVirginia. The facility discharges into the Northern Branch of the Potomac River. UPRC'sNPDES permit expired on April 30, 2006 and has not been reissued.

Petitioners can also point to at least three examples ofminor facilities in the state thatcontinue 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 isrequired to upgrade their capabilities for Enhanced Nutrient Removal. However, despite thisfact, 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 thatdischarges 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 listedas an impaired water body because ofhigh nutrient levels. Despite numerous complaints fromlocal residents about the smells emanating from the plant and discharges from the facility into asmall creek that runs into Kitts Branch, Kelly Foods Corp. continues to discharge under theterms ofa permit that expired on July 31, 2007.

B. INSPECTION AND MONITORING

Federal regulations require delegated state programs "to have inspection and surveillanceprocedures [that] determine ... compliance or noncompliance with applicable programrequirements.,,127 These procedures must include "a program for periodic inspections of

facilities subject to regulation" and inspections of "the facilities ofall major dischargers at leastannually.,,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

compliance inspection. 129 Under 40 C.F.R. § I23.63(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 dayand facilities with EPA and State approved industrial pretreatment facilities," and facilities designated as industrialdischargers. A minor facility "must have a municipal discharge of less than one million gallons per day, must nothave an industrial waste pretreatment program, and must not be designated as an industrial discharger by theregulatory authority." EPA, 2007 Annual Noncompliance Report National Pollutant Discharge Elimination SystemNon-Majors Calendar Year 2007 Final Report 1 fu.l (July 2, 2009), available athttp://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 allactivities taken by the MOE to ascertain a permitee's compliance status." [d.

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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 itscompliance monitoring strategy, "[c]ompliance monitoring is a cornerstone ofEPA'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 2007Transition 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 itspriorities 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 facilitieswith 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 ComplianceMonitoring Strategy for the Core Program and Wet Weather Sources I (Oct. 17,2007), available athttp://www.epa.gov/compliance/resources/policieslmonitoringlcwalnpdescms.pdf.1311d.132 MDE, Enforcement and Compliance Process Frequently Asked Questions (May 17,2007), available athttp://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 withConstruction Activity. October 2008 MDEstat Meeting at 7, available athttp://www.mde.state.md.uslassetsldocumentlMDEStatlwmalMDEStat_Meeting_10_20_08.pdf.

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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 notmeeting this criterion because it is failing to periodically inspect a number ofpermitted 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 ofthose facilities have at least one self­reported violation. 136 One facility listed in the New York Times data. Elkton Striped BassHatchery, has not been inspected since September 1992 - more than 17 years ago. 137

2. Failure to Conduct Follow Up Inspections ofRepeat 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 inspectedCambridge in March 2005 after receiving an anonymous complaint that the facility was violatingits requirements under the General Discharge Permit for Stormwater Associated with IndustrialActivity. The complaint stated that there were visible discharges ofoil into storm drains at thesite. The inspection report noted permit violations in the form of oil sheen water running off thesite, an incomplete SWPPP, lack ofannual site evaluations, and lack of employee training. Afollow-up inspection in April 2005 found that Cambridge had corrected only two of the eightviolations found in the initial inspection. Despite the company's failure to correct the majority ofthese 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 notinspected in over ten years (two full permit terms). For example, the T/A Golden Eye Seafood inPiney Point, Maryland that discharges into St. George's Creek and eventually into the PotomacRiver self-reported 42 permit violations in the past five years, but MOE has not inspected it sinceAugust 1998. Similarly, the Hom Point Laboratory in Cambridge, Maryland that discharges intothe Choptank River had over 80 self-reported violations between 2004 and May 2009 and yetMOE 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 inthe past five years.

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Linthicum, Maryland that discharges into the Patapsco River self-reported 34 violations, butMDE has not inspected the facility since August 1999.138

MDE fails to inspect facilities with a high number ofviolations. For example, Spencer

Sand & Gravel Eastside in Abingdon, Maryland that discharges into the Bush River reported 233violations 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 lowerSusquehanna River of the Gunpowder-Patapsco Watershed reported 138 violations in the pastfive years, but MDE has conducted no inspection there since September 2003. The SusquehannaWater Filtration Plant in Perryville, Maryland that drains into Susquehanna River reported 137violations in the past 5 years and MDE has not inspected it since February 2002. Potomac WaterFiltration Plant in Potomac, Maryland discharges into the Potomac River and has 125 reportedviolations in the past five years, but the last time MDE inspected the facility was December2003. 139

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

c. ENFORCEMENT

Pursuant to federal law, a state delegated enforcement program is required to haveauthority to impose the following remedies on violators: (1) restrain immediately and effectivelyany person from polluting, either by order or by suit in State court; (2) sue to enjoin anythreatened 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 betweenMDE and EPA, MDE agreed to "maintain a program of timely and appropriate enforcementaction 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 enforcementprogram does not comply with the above federal law by failing to take action against permitviolations.

138/d.

139 Jd.140 40 C.F.R. § 123.27.141 MOA § II.A.3.

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Petitioners recognize that it is impossible for MDE, or any state, to bring enforcementactions against every violator. However, a strong enforcement program is central to an effectiveCWA NPDES program. EPA, in their NPDES Permit Writers' Guide, states, "Achieving andmaintaining a high level ofcompliance with environmental laws and regulations are two of themost important goals of Federal and State environmental agencies. Enforcement provides apowerful incentive for NPDES permittees to comply.,,142 Furthermore,

"[e]ffective enforcement is based on the theory ofdeterrence, which holds that a strongenforcement program deters the regulated community from violating in the first place, detersspecific 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 andpermittees that comply with the law.144

The 2007 Transition Report recognized that to fulfill this goal ofdeterrence a strongenforcement program must have "a strategic mix ofcriminal, civil, and administrativecomplaints to notify the regulated community that compliance with environmental laws is of thehighest priority in this Administration.,,145 The report also acknowledged that Maryland hadfailed to effectively implement these elements, thus damaging "the State's credibility among thepublic and regulated community.,,146

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

In recent years, MDE reduced its number ofenforcement actions. According to MDE'sown 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 Crowdwhen 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 athttp://www.epa.gov/compliance/resourceslpolicieslciviVpenalty/epapolicy-civilpenalties021684.pdf.144 Clifford Rechstschaffen, Deterrence v. Cooperation and the Evolving Theory ofEnvironmental Enforcement, 71S. Cal. L. Rev. 1181, 1226 -27 (1998); EPA, Policy on Civil Penalties 3 (1984), available athttp://www.epa.gov/compliance/resourceslpolicieslciviVpenaltylepapolicy-civilpenalties021684.pdf14S Transition Report at 33.146/d.147 MOE, Enforcement and Compliance Process Frequently Asked Questions (May 17, 2007), available athttp://www.mde.state.md.uslassets/documentlEnforcement Compliance Process FAQ.pdf.148 - --/d.149 October 2008 MDEStat Meeting.

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total enforcement actions than in 2007. In addition, according to the data compiled by the NewYork Times, out of239 Maryland facilities reporting thirty or more pennit violations between2004 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, orcitizen complaints, it frequently does not take enforcement action against the violators. Beloware examples ofpermit violations that have gone unaddressed by MDE's enforcement program.

Between August 2006 and March 2007, MDE found multiple violations ofP&1Contracting's stormwater permit, but this resulted in no enforcement actions. P&1 Contractingin Baltimore City crushes and recycles concrete and other materials. It is covered under theGeneral Discharge Permit for Stormwater Associated with Industrial Activities. P&JContracting's discharges drain into the Baltimore City MS4, which eventually discharges intothe Patapsco River. An August 29, 2006 inspection of the facility found non-compliance and anOctober 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 makecorrections, including containment around the drums, maintenance ofstone entrances, and stormdrain inlet protection as detailed in SWPPP. According to data provided by MOE in response toa Public Information Act ("PIA") request, MDE did not take any enforcement action against thefacility, nor have they followed up with any inspections since 2007.

Multiple violations yielded no enforcement actions at Martin Reese G&G Auto TAMarty's Auto Parts ("Martin Reese") in Baltimore City, which discharges into Gwynn Falls. ADecember 2003 compliance inspection at Martin Reese revealed "severely destabilized areasaround the site." Additionally, the auto yard had not moved junked automobiles as previouslyrequired. MDE threatened enforcement ifMartin Reese did not respond within 14 days. AMarch 18, 2004 follow-up inspection report noted that the facility must develop a SWPPP within7-10 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 thefacility, nor have they conducted any follow-up inspections or imposed any administrative finessince March of2004.

ISO N.Y. Times Data.

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The Berg Brothers Recycling Company in Baltimore, Maryland recycles ferrous and non­ferrous scrap metal and discharges into the Baltimore City MS4 and eventually into the PatapscoRiver. MOE inspected the facility in January 2002 and reported that the company violated itspermit by allowing sediment and unknown contaminants to run off into storm drains. BetweenJune 2002 and September 2009, there are no records showing that MDE brought anyenforcement actions against this facility, nor have they conducted any follow-up inspections orimposed any administrative fines.

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

MDE has not penalized the Maryland and Virginia Milk Producers Coop Association, amanufacturer ofdry, condensed, and evaporated dairy products in Laurel, Maryland, despitenumerous self-reported permit violations. The Association is a major NPDES facility thatdischarges into the Patuxent River. According to MDE's violation data, between January 2007and June 2009 the facility violated its permit 11 times. According to ECHO,ISI the facility hasbeen out ofcompliance for five of the last twelve quarters. However, according to MDE'spenalty 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 facilitythat discharges into the Upper Monocacy River. According to MDE's data, it violated its permit30 times in June 2009. According to ECHO and MDE's penalty data, MDE has not taken anyenforcement 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 hazardousmaterial that is notorious for contaminating ground and surface waters with toxic heavy metals.Unsafe disposal ofCCW is threatening the health oflocal communities, making groundwaterunsafe to drink, harming aquatic life and wildlife, and polluting rivers and streams. At theBrandywine Landfill, Mirant is illegally discharging toxic pollutants into Mataponi Creek viaOutfalls 002, 004, and 006 and groundwater, in violation of the terms and conditions of itsNPDES permit. Mirant's discharges into Mataponi Creek, which flows into Merkle WildlifeSanctuary 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 providesintegrated 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.

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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 ofcompliance 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 tocontinuing 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. Examplesinclude 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.

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and estuarine bioassements. 153 MOE and La Plata signed an administrative consent order inDecember 1999.154 Under the consent order, MOE required La Plata to upgrade its plant byMarch 2002. In 2002, La Plata also agreed to pay stipulated penalties to settle severalunauthorized discharges including a $1,000 penalty to settle unauthorized discharge ofwastewater on March 2, 2002. However, since entering into the administrative consent order andagreeing to MDE's settlement terms, La Plata continues to report permit violations that gounpunished by MDE. La Plata's own Discharge Monitoring Reports and information providedby 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 coliformlimit. According to ECHO, La Plata has been out ofcompliance for ten of the last twelvequarters and one violation of its phosphorus limits between July and September 2007 was"significant noncompliance." Despite these numerous violations, according to the New YorkTimes Data and information on penalties provided by MOE, the agency has not takenenforcement 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 violationsoccurring subsequent to an MOE enforcement action. MOE took enforcement action againstCelanese in April of2007. The facility paid an administrative fine of$I,050. Despite thispenalty, 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 theyear 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 dischargesinto the Salt Peter Creek of the Gunpowder- Patapsco Watershed has also continued to illegallydischarge following enforcement proceedings by MOE. According to ECHO, in June of2005,Constellation received a Notice ofViolation 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 animpaired 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.

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generating station has had thennal discharges above the limits allowed under its permit ninetimes between January 2007 and June 2009. According to ECHO~ the station has been out ofcompliance for six out of the past twelve quarters. However~ ECHO does not indicate that MDEbrought 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~ settlementagreements and administrative corrective action orders~ thereby allowing violators to continue toillegally discharge subsequent to MOE's initial enforcement actions.

D. PENALTIES

Under 40 C.F.R. § I23.63(3)(ii) EPA can withdraw a state NPOES program when itsenforcement program fails "to seek adequate enforcement penalties or collect administrativefines when imposed." Pursuant to the 1989 MOA~ MOE agreed to "maintain a program oftimely and appropriate enforcement action in accordance with the CWA and with the provisionsof 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 ofpenalties and fines are intended to further the goal ofdeterrence~which is commonto all enforcement programs. In addition~ penalties and fines ensure that a violator does notreceive any economic benefit or advantage by violating the law. 156 These goals~ however, can beaccomplished only if the penalties and fines imposed are high enough to deter and to prevent theviolator from gaining economic advantages through its non-compliance. 157 Not only isMaryland's statutory range for civil and criminal penalties inadequate, but MDE also fails toimpose 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, 71S. Cal. L. Rev. 1181, 1226 -1227 (1998); EPA, Policy on Civil Penalties 3 (1984), available athttp://www.epa.gov/compliance/resourceslpolicieslcivillpenalty/epapolicy-civilpenalties02I684.pdf.IS7 Clifford RechstschatTen, Deterrence v. Cooperation and the Evolving Theory ofEnvironmental Enforcement. 71S. Cal. L. Rev. 1181, 1226-27 (1998).

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1. Inadequate Statutory Range ofPenalties

An administrative fine can be imposed on a permittee as a result ofan inspection ornotice ofviolation. A civil penalty can be imposed on a permittee as a result ofan enforcementaction or lawsuit. Criminal penalties can be imposed for various criminal violations of theCWA.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 perviolation.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 amaximum of$25,000 per day for each violation. 161

In 1990, Congress passed the Federal Civil Penalties Inflation Adjustment Act requiringeach federal agency to adjust its civil penalties for inflation every four years. 162 ''The purpose ofthese adjustments is to maintain the deterrent effect ofcivil penalties and to further the policygoals 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 forClass 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 criminalpenalty not exceeding S25,000 per day per violation and/or one year in prison for a fmt conviction and notexceeding 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 negligentviolations "not less than $2,500 nor more than S25,000 per day per violations" and/or one year in prison for the firstconviction, and a fine of "not more than S50,000 per day per violation" and/or two years in prison for any convictionthereafter; (2) for knowing violations, "not less than S5,000 nor more than S50,000 per day per violation" and/ornot more than three years in prison for the first conviction, and not more than SIOO,OOO per day of violation and/orsix 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 theoffiense.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 theDebt Collection Improvement Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321.163 73 Fed. Reg. 75340 (Dec. II, 2008).

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penalties to a total of$27,500 per day for each violation. 1M In 2004, EPA again adjusted itspenalties as per the Act. EPA raised its total maximum administrative fines to $32,500 for ClassI violations and $157,500 for Class II violations. EPA also raised its civil penalties to amaximum of$32,500. EPA's most recent adjustment took effect in January of2009. It raised itsadministrative fines to a maximum of$16,000 per violation and a total maximum of$37,500 forClass I violations and $177,500 for Class II violations. EPA raised its civil penalties to amaximum $37,500 per violation. 165

In contrast, Maryland has no such inflation rule and has not raised most of its statutorypenalties to adjust for changing times. In 1986, Maryland's civil penalties used to enforce waterpollution laws were a maximum of$10,000. 166 The maximum amount for civil penalties has notincreased at all in over twenty years. 167

As supported by federal law, inflation alone prevents Maryland's outdated penalties fromacting as an effective deterrent of future violations. The State of Maryland and MDE must revisetheir 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 willdeter future conduct. MDE is faced with an inadequate statutory range for civil penalties. MDEcompounds the statutory inadequacy by failing to impose and/or collect fines in amounts thatwill effectively deter violators.

According to penalty data provided by MDE, the agency routinely reduces the amount ofpenalties 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 121penalties, or 75%, at the time the invoice was sent to the violator. In addition, as ofSeptember2009, 60, or 15%, of all the penalties imposed remained unpaid. This data shows that even withthe low statutory maximum for penalties and fines, MDE still reduces the penalty amount for

164 40 C.F.R. § 19.4 (2009).165/d.

166 Md. Code Ann. Envir. § 9-342 (1986).167 In 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, Marylandalso raised its criminal penalties for knowingly making false statements. However, criminal penalties for generalcriminal violations have not been raised. See 2004 Md. Laws, Ch. 21.

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significant numbers ofviolations 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

facilities in Maryland that reported violations between 2004 and May 2009. 168

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

Iron & Metal ("Cambridge"). As discussed above, Cambridge was inspected twice in 2005 andMOE found oil sheen water running off the site, an incomplete SWPPP, a lack ofannual site

evaluations and lack ofemployee training. As a result of these violations, MOE entered into anagreement with Cambridge that it would only impose administrative penalties for the "two daysof unauthorized discharges ofsediment-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 ofcompliance with its permit, not just for

the days the inspector observed the violations. In addition, even for those two days ofviolations,MOE could have imposed up to $2,000 dollars in fines, yet MOE chose to reduce that amount.

Another example ofa failure to impose adequate penalties is the AssateaguePointelFrontier Town Waste Water Treatment Plant in Berlin, Maryland. The site was reportedto 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 ofthe Coastal Bays Watershed. MDE inspected the property and found that the

facility's inspection and monitoring logs were not in compliance. However, MOE imposed nofines for either the sewage discharges or the inadequate logs, and simply gave the facility a weekto bring its logs up to date. Although it is not reasonable to expect that every violation willresult in the imposition ofthe maximum fine, in this case MOE failed to impose any penalty forthe violation.

The ISG Sparrows Point Inc. steel works, a major facility in Sparrows Point, Marylandthat discharges into the Patapsco River of the Gunpowder-Patapsco watershed, also illustratesthis 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 ofcompliance for six of the last twelve quarters. Despite 20 inspections in the last five years, thelast conducted in September 2009, MDE has not imposed any penalties on the facility.

168 N.Y. Times Data.

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MDE reduces the penalty amount collected from the violator and imposes penalties thatare 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 theNPOES program.,,169 By imposing more substantial administrative and civil penalties and

bringing more criminal actions in appropriate cases, MDE could fulfill its responsibility underthe 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 enforcementprocesses be an integral part ofevery 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 orany State under this chapter shall be provided for, encouraged, and assisted by theAdministrator and the States. 170

In recognition of the prominent role that citizen involvement should have in any state­administered 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 of40 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 itallow citizens to comment on any proposed settlements that might result from a Stateenforcement action. Second, MDE's inefficient recordkeeping methods hamper the ability of thepublic to obtain information through Public Information Act ("PIA") requests, which has theeffect 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 citizenparticipation in the enforcement process in one of two ways. The first option is for the state toallow intervention as ofright in any civil or administrative action for a citizen that has an interest

169 MOA § ILA.I.170 33 U.S.C. § 1251(e).

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which is or may be adverselyaffected.!7! Alternatively, under 40 C.F.R. § 123.27(d)(2), a statethat does not allow intervention as ofright in enforcement actions must provide assurances thatits enforcement agency (1) will investigate and provide written responses to all citizencomplaints submitted in accordance with proper procedures, (2) will not oppose pennissiveintervention by citizen groups when the intervention is authorized by statute, rule, or regulation,and (3) will publish notice ofand provide for a 30 day comment period on any proposedsettlement of a State enforcement action. However, Maryland law does not expressly allowcitizens to fully participate in enforcement actions through either avenue. The Maryland rulegoverning intervention does not explicitly provide citizens the right to intervene in stateenforcement actions, and some trial courts have withheld the right to intervene in such cases. Inaddition, MDE does not publish notice ofand provide for a 30-day comment period for proposedsettlement agreements. Therefore the state's program does not meet the public participationrequirements of the CWA.

Citizens who have an interest that will be or may be adversely affected by the dispositionofa state enforcement action do not have an express right to intervene in the proceeding, be itcivil or administrative. Under Maryland Rule 2-214(a), a party in a civil case must be allowed tointervene in a civil proceeding when the party has an unconditional right to do so as a matter oflaw, or "when the person claims an interest relating to the property or transaction that is thesubject of the action, and the person is so situated that the disposition ofthe action may as apractical matter impair or impede the ability to protect that interest unless it is adequatelyrepresented by existing parties." Intervention as of right in an administrative proceeding isgoverned by COMAR 26.01.02.24(A), which uses language that is identical to MD Rule 2­214(a). Some Maryland trial courts have interpreted the last clause ofMD Rule 2-214(a)(2) andCOMAR 26.01.02.24(A)(2), "unless [the interest] ... is adequately represented by existingparties," in such a way so as to deny citizens the opportunity to intervene in enforcement actionsbrought by MDE, even when the agency itself supports the intervention and infonns the courtthat 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 suitssave the state enforcement agency valuable resources, give concerned organizations andmembers of the public an opportunity to stop violations that most affect them, and give thepublic a say in the direction that enforcement actions take. This was clearly the goal whenCongress passed the CWA. But when citizens are denied the opportunity to intervene in existingenforcement actions, or have their own suits consistently over-filed by the state agency. the

171 40 C.F.R. § 123.27.

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citizen suit provision of the CWA becomes largely meaningless. In the two different stateenforcement actions discussed belowt Maryland trial courts denied citizen groupst motions to

intervenet 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, theaforementioned Genovique facilitYt was discharging excessive nutrients from its outfalls. CRAtook samples from the outfallst and subsequent testing revealed that the facility was discharginglevels ofBEHP and phosphorous not authorized by its permit. With this information in handtCRA took its concerns to MOE. Although MOE eventually filed a civil complaint againstGenovique on October 31,2007, MOE's complaint only alleged that the facility was illegallydischarging pollutants into the local groundwater. The complaint did not include any of thesurface water discharge violations that CRA had brought to the agency's attention. Believingthis to be a serious omission, on November 20,2007 CRA filed a motion to intervene in MDE'senforcement 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 forKent 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 onMarch 12t 2008. Later, on July 8,2008 (while CRA's citizen suit was still in its preliminarystages), MDE and Genovique entered into a consent decree that addressed both surface and

ground water pollutiont 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 finalagreement, but felt compelled, in the interest ofjudicial economy, to ask the court to dismiss itscomplaint 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 thecourt's interpretation ofMO Rule 2-214, despite the fact that the agency's complaint did notmake 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 anagreement that essentially rendered the citizen suit moot. MOE's litigation strategy, combinedwith the Circuit Court's reading ofMO Rule 2-214, denied CRA any meaningful role in thisenforcement 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 ofMaryland's intervention law,State ofMaryland Dept. ofthe Environment v. Mirant Mary/and Ash Management, involves the

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Mirant Faulkner facility in Charles County, Maryland. Mirant Faulkner receives and disposes offly ash from a nearby coal-fired power plant. The facility discharges into Bowling Creek and

tributaries ofZekiah 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 thefacility in December of2000. Following its purchase, Mirant continued to illegally discharge

from the facility into the Zekiah swamp but MDE took no additional enforcement action, despitebeing 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 ofMaryland's water quality criteria, pollutant discharges without apennit and in violation ofa 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, 2008EIP and PRK sent out a 60-day Notice of Intent to sue for violations of the CWA. Then, on May29, 2009, and before the 60-day Notice of Intent time frame had elapsed, MDE filed suit againstMirant Faulkner in state court. PRK and EIP filed a motion to intervene in the enforcementaction. 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 PRKand EIP, having met all the criteria under Rule 2-214, were entitled to intervene as ofright.However, on September 23, 2009 the Circuit Court for Charles County denied the motionwithout explanation. 172 PRK and EIP were thus not permitted to participate in MDE'senforcement 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 notprovide citizens an express right of intervention in CWA enforcement cases, Maryland's water

program must satisfy the three requirements of40 C.F.R. § 123.27(d)(2) in order to fulfill thepublic participation requirements ofPart 123. However, state law does not provide for a 30-daynotice and comment period for proposed settlements ofstate enforcement actions. Thisshortcoming 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 ofthemore stringent limits and restrictions that it believed were necessary to protect the health of theChester River. Historically, citizen groups in this state have been prevented from participating inenforcement 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 ofSpecial Appeals.

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Therefore Maryland's water program does not allow for public participation as envisioned by theregulations enacted pursuant to the CWA.

2. Deficient Handling ofPIA Requests

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

The public can participate in the implementation of the CWA only if it has the relevantinformation it needs; information that, in most cases, is in the possession ofMDE. When theagency fails to properly handle PIA requests, it impedes public participation when instead itshould be encouraging and assisting it. As the examples below will demonstrate, MDE takes toolong 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 andincomplete. MDE is not meeting the public participation requirement of40 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)

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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 forthe Galena Wastewater Treatment Plant. As of the date ofthis petition, the agency has failed torespond. One final example concerns nine PIA requests that were filed by the Baltimore HarborWaterkeeper, the West Rhode Riverkeeper, the Anacostia Riverkeeper, the PatuxentRiverkeeper, and South Riverkeeper. These PIA requests sought information related to the MS4permits for nine different Phase I (medium and large) jurisdictions across the state. One requestwas received by MDE on July 30,2009, another on August 18,2009, and the remaining sevenwere received on September 10, 2009. However, as of the date of this petition, none of theorganizations have received any documents, despite the fact that they had agreed to limit therequest to only include documents from the previous five years. The public cannot effectivelyassist in enforcing the CWA when it is forced to wait months to receive relevant materials thatare exclusively in the agency's possession.

One potential reason for this problem is that MOE does not keep public records in a waythat 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 complyingwith the requests would require the agency to expend ten information gathering hours per permitand 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 takethe 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 recordsof 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 withMOE. On July 8,2009, the Baltimore Harbor Waterkeeper informally requested that MDEprovide 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 adatabase and attempted to respond to this request in good faith, but maintained that no one in theoffice knew how to generate a report of the data. The staffperson shared in Baltimore HarborWaterkeeper's frustration and explained that the Customer Service Center, which was previouslyresponsible for fulfilling these requests, had recently been disbanded with no one trained to takeover its tasks. The Baltimore Harbor Waterkeeper conducted numerous follow-ups with MDE in

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the months that followed the initial inquiry. On November 2, 2009 the agency again told theWaterkeeper that no one in the office had the training that was necessary to generate the NECreport. As ofNovember 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 wouldtake 168 hours to comply with the request, and would cost Waterkeeper Alliance around $1,680to $6,720, depending on the pay grade of the employees involved. In another instance, a lawclerk for the Baltimore Harbor Waterkeeper submitted a PIA request during the summer of2009regarding 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 takeapproximately 2,136 hours to fulfill the PIA request and would cost the organization somewherebetween $21,360 and $85,440. MDE also stated that electronic documents and electronic data

were not available in lieu ofthe 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 thestatute, "reasonable fee" is defined as "a fee bearing a reasonable relationship to the recovery ofactual 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 beincurred by the agency. If such estimates do in fact represent the actual costs that the agencywould incur by responding to PIA requests, then that only serves to demonstrate the extent ofinefficiency in MDE's record management system.

MDE's fee estimates for fulfilling PIA requests are, in many cases, higher than the initialpermit fee imposed by MOE on permit applicants.179 The agency's record-keeping system isclearly in need of improvement ifit costs MDE more to search for and produce documents thanit does for them to draft a discharge permit. Similarly, these estimates are often higher than anyadministrative fines or penalties imposed on facilities in violation of their NPOES permits. Notonly do low administrative fines and penalties fail to deter future violations, but MDE's systemis truly in need of review when it charges those in violation ofthe law less than those attemptingto exercise their legal right to review public documents.

Improving MDE's record management would benefit the agency as well as the public, asMOE 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 ofpermit fees on page 9 of this petition.

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responsibilities under the CWA. But, until MDE takes steps to upgrade and streamline itssystem of recordkeeping, members of the public who request information from the agency willcontinue 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 ofwhat was requested or fails to produce a document that it should havein its possession. For example, on September 20, 2007 PRK. asked MDE to produce the NPOESpermit, which includes the SWPPP, for the Mirant Morgantown Generating Station as part of ageneral PIA request. PRK. was informed that MOE did not have a copy ofthe SWPPP in its

possession, and was directed to contact the facility itself to inquire about whether Mirant wouldpermit inspection of its SWPPP. MOE expressed doubts as to whether the public was entitled toinspect the document, and stated its belief that the facility held discretion in determining whocould 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 SWPPPwas 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 ofthe SWPPP tothe 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 inits possession, and that she would have to request the document from the facility itself. Pastexperience 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 SWPPPwill be used in subsequent litigation. MOE could easily remove this hurdle by retaining a copyofthese SWPPPs in each permittee's file, which would thereby promote greater publicparticipation 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 activelyparticipate in the enforcement ofenvironmental laws other than the CWA, MOE's entire document managementsl.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.

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Additionally, MDE's response to the aforementioned Waterkeeper Alliance PIA requestof June 17,2009 was inadequate. Waterkeeper Alliance, Inc. requested a range of documentsand records pertaining to MDE's permitting and enforcement processes. The request wasadmittedly quite broad, but Waterkeeper Alliance demonstrated that it was willing to work withMOE to narrow down the request to a manageable level. The Alliance suggested that MDE sendelectronic versions of its records as one way ofkeeping costs on both sides to a minimum, and toavoid MOE having to produce physical copies of the requested documents. Finally, after overthree months ofback-and-forth, waiting, and conducting follow-up, the Waterkeepers received aCD-ROM that contained ten files. The only records on the CD were compliance-related; therewas no data related to number of permits issued, number ofexpired permits, or number ofrenewal applications received. Because it lacked a significant portion of the materials that theWaterkeepers had requested, MOE's response was oflimited utility to the organization.

III. CONCLUSION

MDE has abdicated its delegated NPDES program responsibilities. This petition fulfillsthe criteria of40 CFR § 123.63(a)(4) by demonstrating that MOE's NPDES program is whollyinadequate and, if the inadequacies are not corrected, the program must be administered by EPA.

EPA Administrator Jackson's emphasis on transparency and enforcement provides animportant framework for addressing the concerns raised by this petition. Petitioners hope thatthis petition can serve as a vehicle for MOE to confront the deficiencies of the NPDES programand identify the type and scope of solutions required to bring its program into compliance withthe CWA and its MOA with EPA.

The current status ofMaryland's inefficient and under-performing NPOES programshould not be tolerated. It is time for serious and real change that will make the most ofthe newinitiatives and increased federal funding planned for Chesapeake Bay restoration efforts.Although additional funding for the Bay is critically needed, it is imperative that EPA recognizeand address the underlying flaws in Maryland's NPOES program. The WaterkeepersChesapeake ofMaryland and Waterkeeper Alliance recognize that Maryland's economicproblems, 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 ofMaryland's program impose far greatercosts on the citizens of the state than the short-term costs necessary to improve MOE'sperformance.

The Chesapeake Bay is the heart of the state's economy, with commercial fishing of finand shellfish a critical part of that economy. Polluted water undermines tourism, fishing,recreational boating, swimming, and the use of Bay waters for a myriad ofother productiveactivities. Neglect ofthe Bay literally makes people sick, destroys irretrievable natural

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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'----'-"Irector

Environmental Law ClinicUniversity of Maryland School of Law500 W. Baltimore StreetBaltimore, MD 21201-1786(410)706-8074

Christine M. MeyersFellowEnvironmental Law ClinicUniversity of Maryland School of Law500 W. Bahimore StreetBaltimore, 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

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