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Case 1:21-cv-03176-LKG Document 1 Filed 12/15/21 Page 1 of 29
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MARYLAND
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`BLUE WATER BALTIMORE, INC.
`2631 Sisson Street
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`Baltimore, MD 21211
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`Plaintiffs,
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`v.
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`MAYOR & CITY COUNCIL OF
`BALTIMORE
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`City Hall, 100 N. Holliday Street
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`Baltimore, Maryland 21202
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`Defendants.
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`:
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`CIVIL ACTION - LAW
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`No.:
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`COMPLAINT
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`And now the Plaintiff, Blue Water Baltimore, Inc., by and through its attorneys,
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`Chesapeake Legal Alliance and Barley Snyder, files this Complaint alleging the following:
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`STATEMENT OF THE CASE
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`1.
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`This is a citizen suit for declaratory and injunctive relief, the assessment of civil
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`penalties, and other appropriate relief against the Mayor and City Council of Baltimore
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`(“Defendants” or “Baltimore City”) for violations of the Federal Water Pollution Control Act, 33
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`U.S.C. § 1251 et seq. (hereafter the Clean Water Act (“CWA”)).
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`2.
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`These violations occurred and are occurring at the Patapsco Wastewater
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`Treatment Plant (“Patapsco WWTP”) and the Back River Wastewater Treatment Plant (“Back
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`River WWTP”) (collectively, “Facilities”). The Patapsco Wastewater Treatment Plant is located
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`Case 1:21-cv-03176-LKG Document 1 Filed 12/15/21 Page 2 of 29
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`at 3501 Asiatic Ave, Baltimore, MD 21226. The Back River WWTP is located at 8201 Eastern
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`Ave, Baltimore, MD 21224. Both Facilities are owned and operated by Defendants.
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`3.
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`As detailed below, Defendants have discharged and continue to discharge
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`pollutants into waters of the United States in violation of sections 301 and 402 of the CWA, 33
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`U.S.C. §§ 1311, 1342, and the conditions and limitations of National Pollutant Discharge
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`Elimination System (“NPDES”) Permit No. MD0021601 (State Permit 15-DP-0580) (“Patapsco
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`Permit”) and NPDES Permit No. MD0021555 (State Permit 15-DP-0581) (“Back River
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`Permit”), issued pursuant to section 402 of the CWA, 33 U.S.C. § 1342.
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`4.
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`Defendants have demonstrated an unwillingness and/or inability to comply with
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`the terms of their NPDES permits as well as federal and state law.
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`JURISDICTION AND VENUE
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`5.
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`This Court has original subject matter jurisdiction over this action pursuant to 33
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`U.S.C. § 1365(a), and 28 U.S.C. § 1331.
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`6.
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`This Court has supplemental jurisdiction over state law claims included in this
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`Complaint pursuant to 28 U.S.C. § 1367.
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`7.
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`Pursuant to 33 U.S.C. § 1365(c), venue is correct because the Clean Water Act
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`(CWA) violations alleged in this Complaint occurred or may occur in this District.
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`8.
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`Pursuant to the CWA, 33 U.S.C. § 1365(b)(1)(A) (requiring 60 days notice), Blue
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`Water Baltimore. (“Plaintiff”) gave notice on October 5, 2021, which is more than 60 days prior
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`to commencing this action, to all required parties including: 1) the Defendants; 2) the Maryland
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`Department of the Environment (“the Department”); 3) the United States Environmental
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`Protection Agency (EPA); and 4) the State of Maryland.
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`8993442.1
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`9.
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`Neither EPA nor the State of Maryland has commenced or is diligently
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`prosecuting a civil or criminal action against Defendants in a court of the United States or the
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`State of Maryland, or pursuing an administrative penalty action, to require compliance with the
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`laws, rules, regulations, permits, standards, or limitations at issue in this case.
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`10.
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`As explained below, Defendants are in violation of effluent standards and
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`limitations set forth in their Permits and are not otherwise complying with the terms and
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`conditions of the Permits. Therefore, the violations alleged herein will continue until this Court
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`enjoins Defendants from discharging in violation of the Permits and orders Defendants to
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`address and remedy the underlying causes of the violations.
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`PARTIES
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`11.
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`Plaintiff Blue Water Baltimore is a 501(c)(3) nonprofit organization formed in
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`2010. It is dedicated to protecting clean water in the Baltimore, Maryland, area. Blue Water
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`Baltimore is headquartered at 2631 Sisson Street, Baltimore, Maryland. Its mission is to protect
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`and restore the Baltimore Harbor, the greater Patapsco and Back Rivers, and their tributaries
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`through enforcement, fieldwork, and citizen action on behalf of its members in order to make
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`these waterways suitable for recreation (including fishing and swimming), to improve public
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`health, and to improve the health of the aquatic ecosystems. Baltimore Harbor Waterkeeper, a
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`program of Blue Water Baltimore, is responsible for protecting the Patapsco River and Back
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`River watersheds, including all of the neighborhood streams and rivers that discharge into the
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`Patapsco and Back Rivers.
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`12.
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`Blue Water Baltimore has over 1000 members, over 800 of whom live in
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`Baltimore City and Baltimore County, surrounded by the Patapsco and Back Rivers, which drain
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`to the Chesapeake Bay.
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`8993442.1
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`Case 1:21-cv-03176-LKG Document 1 Filed 12/15/21 Page 4 of 29
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`Blue Water Baltimore supports its members by utilizing the CWA and other
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`environmental laws to stop pollution that threatens public health, impairs water quality, damages
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`ecosystems, and negatively impacts the ability of its members to use and enjoy the waterways of
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`Baltimore. Blue Water Baltimore’s members include individuals who participate in and enjoy
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`many recreational activities in and around the Patapsco and Back Rivers and the Chesapeake
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`Bay, including fishing, boating, kayaking, and enjoyment of their aesthetic qualities. See
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`Declarations of Alice Volpitta, Desiree Greaver, Sara Bundy, and Rodette Jones. Attached as
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`Exhibit 1 and incorporated herein.
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`13.
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`Blue Water Baltimore’s members are harmed by the violations alleged in this
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`Complaint. Pollution in Patapsco and Back Rivers impairs water quality, threatens public health,
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`and harms river habitats and aquatic ecosystems. Defendants’ violations of the CWA have
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`resulted in excess pollution which impairs the water quality and contributes to algae blooms, fish
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`kills, and unsafe swimming conditions in the Patapsco and Back Rivers and have diminished
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`Blue Water Baltimore’s members' use and enjoyment of these waters by making it less likely that
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`they will continue to enjoy recreating on and around them in the future. See Declarations of
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`Alice Volpitta, Desiree Greaver, Sara Bundy, and Rodette Jones. Exh. 1.
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`14.
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`A favorable decision in this matter would compel Baltimore City to comply with
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`applicable laws and ensure the operation of the Facilities do not continue to negatively impact
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`the water quality in the Back River, Patapsco River, and Chesapeake Bay and would lead to
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`improvements in water quality and redress the concerns of Blue Water Baltimore’s members.
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`15.
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`The interests that Plaintiff seeks to protect are germane to its organizational
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`purposes.
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`8993442.1
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`16.
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`Neither the claims asserted nor the relief requested requires the participation of
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`Plaintiff’s individual members in this action.
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`17.
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`At all relevant times, Plaintiff was and is a “person” as that term is defined by the
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`CWA, 33 U.S.C. § 1362(5).
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`18.
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`Defendants Baltimore Mayor and members of the Baltimore City Council are the
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`executive and legislative components of the Baltimore City government and are the permittees
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`and the responsible parties on the Permits. Their address is City Hall, 100 N. Holliday Street,
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`Baltimore, MD 21202.
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`19.
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`Baltimore City owns and operates the Patapsco WWTP. The Facility treats
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`wastewater from the Baltimore metropolitan area, including Baltimore City, Baltimore County,
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`Anne Arundel County, and Howard County.
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`20.
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`Baltimore City also owns and operates the Back River WWTP. The Facility treats
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`wastewater from Baltimore City and Baltimore County.
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`21.
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`The Defendants are “persons” within the meaning of the CWA, 33 U.S.C. §
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`1362(5).
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`STATUTORY AND REGULATORY FRAMEWORK
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`22.
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`Section 301(a) of the CWA, 33 U.S.C. § 1311(a), prohibits the “discharge of any
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`pollutant by any person” into waters of the United States except in compliance with the terms of
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`a permit, such as an NPDES permit issued by EPA or an authorized state pursuant to Section 402
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`of the CWA, 33 U.S.C. § 1342.
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`23.
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`Title 9 of the Maryland Environment Code and its accompanying regulations
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`detail Maryland’s NPDES permit program.
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`8993442.1
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`24.
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`The term “discharge of pollutants” is defined in section 502(12) of the CWA, 33
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`U.S.C. § 1362(12), to mean “any addition of any pollutant to navigable waters from any point
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`source…”
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`25.
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`The term “pollutant” is defined in section 502(6) of the CWA, 33 U.S.C. §
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`1362(6) to mean “dredged spoil, solid waste. . . sewage. . . sewage sludge. . . chemical wastes,
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`biological materials. . . . and industrial, municipal . . . waste discharged into water.”
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`26.
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`The term “point source” is defined in section 502(14) of the CWA, 33 U.S.C. §
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`1362(14), to mean “any discernible, confined and discrete conveyance, including but not limited
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`to any pipe, ditch, channel, tunnel…from which pollutants are or may be discharged.”
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`27.
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`The term “navigable waters” is defined in section 502(7) of the CWA, 33 U.S.C.
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`§ 1362(7) to mean “the waters of the United States, including the territorial seas.”
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`28.
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`Section 402(a) of the Act, 33 U.S.C. § 1342(a), provides that the EPA may issue
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`NPDES permits to “persons” that authorize the discharge of any pollutant into navigable waters,
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`but only in compliance with section 301 of the Act, 33 U.S.C. § 1311, and such other conditions
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`as EPA determines are necessary to carry out the provisions of the Act.
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`29.
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`Section 402(b) of the Act, 33 U.S.C. § 1342(b), provides that a State may
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`establish its own permit program and, after receiving approval of its program by the EPA, may
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`issue NPDES permits. Under COMAR 26.08.04.07, the State of Maryland established its own
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`NPDES permit program and received EPA approval of its program in 1974. The Department
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`issues NPDES permits under Title 9 of the Maryland Code of the Environment.
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`30.
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`Section 505(a)(1) of the CWA, 33 U.S.C. § 1365(a)(1), allows citizens to bring
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`suit against “any person…alleged to be in violation” of an “effluent standard or limitation”
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`8993442.1
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`established under the CWA or “an order issued by…a State with respect to such a standard or
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`limitation.”
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`31.
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`Section 505(f)(7), 33 U.S.C. § 1365(f)(7) defines “effluent standard or limitation”
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`as “a permit or condition of a permit issued under section 402 [33 U.S.C. § 1342],” the NPDES
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`Permit is an “effluent standard or limitation” as defined by section 505(f)(7) of the CWA, 33
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`U.S.C. § 1366(f)(7).
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`32.
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`40 C.F.R. § 122.41 states that permittees “must comply with all conditions of this
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`permit. Any permit noncompliance constitutes a violation of the Clean Water Act and is grounds
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`for enforcement action…” 40 C.F.R. § 122.41(a).
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`33.
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`In an action brought under Section 505(a) of the CWA, 33 U.S.C. § 1365(a), the
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`district court has jurisdiction to order Defendants to comply with the CWA and to assess civil
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`penalties.
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`34.
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`Under Section 505(d) of the CWA, 33 U.S.C. § 1365(d), the court “may award
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`costs of litigation (including reasonable attorney and expert witness fees) to any prevailing or
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`substantially prevailing party, whenever the court determines such an award is appropriate.”
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`35.
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`Section 309(d) of the Act, 33 U.S.C. § 1319(d), provides that any person who
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`violates, inter alia, section 301 of the Act, 33 U.S.C. § 1311, or who violates any condition or
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`limitation of an NPDES permit issued pursuant to section 402 of the Act, 33 U.S.C. § 1342, shall
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`be subject to a civil penalty.
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`36.
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`Pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, 28
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`U.S.C. § 2461, as amended by the Debt Collection Improvement Act of 1996, 31 U.S.C. §3701,
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`any person who violates sections 301 and 402 of the Act, 33 U.S.C. §§ 1311 and 1342, shall be
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`subject to a civil penalty up to $56,460 per day per violation occurring on or after January 13,
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`8993442.1
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`2009. See also 40 C.F.R. § 19.4 for violations that occurred after November 2, 2015, where
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`penalties are assessed after December 23, 2020.
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`FACTUAL BACKGROUND
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`The Facilities: Patapsco WWTP
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`37.
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`The Patapsco WWTP Permit is effective October 1, 2017, to September 30, 2022,
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`pursuant to § 402 of the CWA, 33 U.S.C. § 1342(b).
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`38.
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`The Patapsco Permit authorizes Defendants to discharge pollutants from treated
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`wastewater to the Patapsco River in accordance with certain effluent limitations, monitoring
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`requirements, and other conditions set forth in the Permit.
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`39.
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`The Patapsco Permit authorizes Defendants to discharge pollutants via Outfall
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`001A into the Patapsco River, which flows to the Chesapeake Bay.
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`40.
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`41.
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`Outfall 001A is a point source under the Clean Water Act.
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`The Patapsco River is a tidal estuary located on the western shore of the
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`Chesapeake Bay that includes the Baltimore Harbor, Curtis Creek, and Bear Creek. The Patapsco
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`WWTP discharges into the Patapsco River Mesohaline sub-watershed 7.5 miles from the River’s
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`confluence with the Chesapeake Bay.
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`42.
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`The Patapsco River is designated Use II waters for support of estuarine and
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`marine aquatic life and shellfish harvesting.
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`43.
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`The Patapsco River is a navigable water of the United States within the meaning
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`of 33 U.S.C. § 1362(7).
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`44.
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`The Department has listed the Patapsco River under section 303(d) of the CWA
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`as impaired for the following pollutants: total phosphorus, total nitrogen, total suspended solids,
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`Enterococcus, toxics (polychlorinated biphenyls, or PCBs), chlordane, impacts to biological
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`8993442.1
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`communities, and debris/Floatables.
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`45.
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`The EPA has approved the Department’s Total Maximum Daily Loads (“TMDL”)
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`for the Patapsco River Mesohaline for nitrogen (2007), phosphorus (2007), and trash and debris
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`(2016). In addition, TMDLs have been established for the Baltimore Harbor for chlordane (2001)
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`and PCBs (2012). The Patapsco River is also part of the Chesapeake Bay TMDL, established in
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`2010, which limits total nitrogen, total phosphorus, and TSS entering the Chesapeake Bay.
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`Maryland's Watershed Implementation Plan for the Bay TMDL recognizes the Patapsco WWTP
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`as having a significant impact on the state's overall nutrient load to the Chesapeake Bay.
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`46.
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`Excessive nutrient pollution to the Patapsco River and the Chesapeake Bay can
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`result in harmful algae blooms, fish kills, and other negative environmental and health impacts.
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`The Facilities: Back River Wastewater Treatment Plant
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`47.
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`The Back River WWTP Permit is effective May 1, 2018 to April 30, 2023,
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`pursuant to § 402 of the CWA, 33 U.S.C. § 1342(b).
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`48.
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`The Back River Permit authorizes Defendants to discharge pollutants from treated
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`wastewater to the Back River in accordance with certain effluent limitations, monitoring
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`requirements, and other conditions set forth in the Permit.
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`49.
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`The Back River Permit authorizes Defendants to discharge pollutants via Outfall
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`001A into the Back River, which flows into the Chesapeake Bay and via Outfall 002A into High
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`Head Lake at the Sparrows Point Trade Point Property, and from there, is pumped into existing
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`outfalls to Bear Creek, which flows to the Chesapeake Bay.
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`50.
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`51.
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`Outfall 001A and Outfall 002A are point sources under the Clean Water Act.
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`The Back River is located on the western shore of the Chesapeake Bay. The Back
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`River WWTP discharges into the Back River 6.3 miles from its confluence with the Chesapeake
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`8993442.1
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`Case 1:21-cv-03176-LKG Document 1 Filed 12/15/21 Page 10 of 29
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`Bay.
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`52.
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`The Back River is designated Use II waters for support of estuarine and marine
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`aquatic life and shellfish harvesting.
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`53.
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`The Back River is a navigable water of the United States within the meaning of
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`33 U.S.C. § 1362(7).
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`54.
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`The Department has listed the Back River under section 303(d) of the CWA as
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`impaired for the following pollutants: PCBs in sediment and fish tissue, sediments, chlordane,
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`nitrogen and phosphorus, chlorides, and sulfates.
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`55.
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`The EPA has approved the Department’s TMDLs for the Patapsco River
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`Mesohaline for nutrients (established in 2005), chlordane (1999), zinc (2004), PCBs (2005), and
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`E. coli (2007). The TMDLs for nutrients and PCBs for the Baltimore Harbor (established in 2007
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`and 2012, respectively) also apply to the Back River. In addition, the Back River is part of the
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`Chesapeake Bay TMDL limits for total nitrogen, total phosphorus, and TSS. Maryland's
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`Watershed Implementation Plan for the Bay TMDL recognizes the Back River WWTP as having
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`a significant impact on the state's overall nutrient load to the Chesapeake Bay.
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`56.
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`Excessive nutrient pollution to the Back River and the Chesapeake Bay can result
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`in harmful algae blooms, fish kills, and other negative environmental and health impacts.
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`The Permits: Patapsco WWTP
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`The Patapsco Permit establishes, among others, the following effluent limits:
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`BOD: 18,000 lb/d monthly average loading rate and 27,000 lb/d weekly average
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`57.
`
`a.
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`loading rate.
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`b.
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`TSS: 18,000 lb/d monthly average loading rate and 27,000 lb/d weekly average
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`loading rate.
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`Case 1:21-cv-03176-LKG Document 1 Filed 12/15/21 Page 11 of 29
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`c.
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`Ammonia (As N): 3,836 lb/d monthly average loading rate from May 1 through
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`October 31 each year.
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`d.
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`e.
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`f.
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`g.
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`h.
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`i.
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`Total Phosphorus: 33,330 lb total May 1 through October 31, and 66,700 lb/yr.
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`Total Nitrogen: 333,330 lb total May 1 through October 31, and 889,300 lb/yr.
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`Enterococci: 35 MPN/100 ml monthly geometric mean.
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`Total Residual Chlorine: 0.018 mg/l maximum.
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`pH: minimum of 6.5 and maximum of 8.5.
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`Dissolved oxygen: 5.0 mg/l minimum year-round, with minimum 6.0 mg/l weekly
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`average February 1 through May 31.
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`58.
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`Defendants are required to submit timely and accurate Discharge Monitoring
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`Reports (“DMRs”) verifying compliance with the Patapsco Permit’s effluent limits. (General
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`Condition III.A.2.)
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`59.
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`The Patapsco Permit contains numerous Special and General Conditions that
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`establish additional enforceable requirements on the Patapsco WWTP’s operation.
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`60.
`
`The Patapsco Permit Special Conditions pertain to, among other things: PCBs
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`testing and reporting (Special Conditions II.B.1 and II.F.4), toxic chemical testing and reporting
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`(Special Condition F), special reporting requirements including Wastewater Capacity
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`Management Plans (Special Condition II.B.2), and mitigation of Fats, Oils, and Grease (“FOGs”)
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`(Special Condition M).
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`61.
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`The Patapsco Permit General Conditions pertain to, among other things:
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`maintaining the Patapsco WWTP in efficient and good working order (General Condition
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`III.B.3) and minimizing and preventing adverse impacts to waters of the state or to human health
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`(General Condition III.B.4).
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`62.
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`The Patapsco Permit references civil and criminal penalties for violations of
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`Permit Conditions (Civil and Criminal Penalties IV).
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`The Permits: Back River WWTP
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`63.
`
`The Back River Permit establishes, among others, the following effluent limits for
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`Outfall 001A:
`
`a.
`
`Biological Oxygen Demand (BOD): 11,000 lb/d monthly average loading rate and
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`16,000 lb/d weekly average loading rate.
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`b.
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`TSS: 11,000 lb/d monthly average loading rate and 16,000 lb/d weekly average
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`loading rate, with an annual maximum of 3,959,228 lb.
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`c.
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`Ammonia (As N): 2,200 lb/d monthly average loading rate and 3,300 lb/d weekly
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`average loading rate from May 1 through October 31 each year, and 5,529 lb/d monthly average
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`loading rate the remainder of the year. Total nitrogen is limited to 99,782 lb/m from May 1 to
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`October 31, with an annual maximum of 1,582,055 lb.
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`d.
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`Total Phosphorus: 220 lb/d monthly average loading rate and 330 lb/d weekly
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`average loading rate, with a limit of 6,652 lb/m from May 1 through October 31, and total limit
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`of 79,277 lb.
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`e.
`
`f.
`
`g.
`
`h.
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`E. coli: 126 MPN/100 ml monthly geometric mean.
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`Total Residual Chlorine: 0.011 mg/l.
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`pH: minimum of 6.5 and maximum of 8.5.
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`Dissolved oxygen: 5.0 mg/l minimum year-round, with minimum 6.0 mg/l weekly
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`average February 1 through May 31.
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`i.
`
`j.
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`WET Acute Toxicity: TUa<1.00.
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`WET Chronic Toxicity: TUc<1.02.
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`Case 1:21-cv-03176-LKG Document 1 Filed 12/15/21 Page 13 of 29
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`64.
`
`The Back River Permit establishes, among others, the following effluent limits for
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`Outfall 002A:
`
`a.
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`Biological Oxygen Demand (BOD): 8,340 lb/d monthly average loading rate and
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`12,520 lb/d weekly average loading rate from May 1 through October 31, and 12,520 lb/d
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`monthly average loading rate and 18,770 lb/d weekly average loading rate for the remainder of
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`the year.
`
`b.
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`TSS: 12,520 lb/d monthly average loading rate and 18,770 lb/d weekly average
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`loading rate, with an annual maximum of 4,589,026 lb.
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`c.
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`Ammonia (As N): 830 lb/d monthly average loading rate and 1,250 lb/d weekly
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`average loading rate from May 1 through October 31 each year, and 2,120 lb/d monthly average
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`loading rate the remainder of the year. Total nitrogen is limited to 230,294 from May 1 to
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`October 31, with an annual maximum of 610,748 lb.
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`d.
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`Total Phosphorus: 83 lb/d monthly average loading rate and 125 lb/d weekly
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`average loading rate, with a limit of 15,353 lb total from May 1 through October 31, and an
`
`overall limit of 30,363 lb/y.
`
`e.
`
`f.
`
`g.
`
`E. coli: 126 MPN/100 ml monthly geometric mean.
`
`pH: minimum of 6.5 and maximum of 8.5.
`
`Dissolved oxygen: 5.0 mg/l minimum year-round, with minimum 6.0 mg/l weekly
`
`average February 1 through May 31.
`
`65.
`
`The entire Back River WWTP (Outfalls 001A and 002A combined, are subject to
`
`annual load limits:
`
`a.
`
`b.
`
` Total Nitrogen: 2,192,800 lb/y.
`
`Total Phosphorus: 109,600 lb/y.
`
`8993442.1
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`13
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`Case 1:21-cv-03176-LKG Document 1 Filed 12/15/21 Page 14 of 29
`
`c.
`
`66.
`
`TSS: 8,548,254 lb/y.
`
`Defendants are required to submit timely and accurate DMRs verifying
`
`compliance with the Back River Permit’s effluent limits. (General Condition III.A.2).
`
`67.
`
`The Back River Permit contains numerous Special and General Conditions that
`
`establish additional enforceable requirements on the Back River WWTP’s operation.
`
`68.
`
`The Back River Permit Special Conditions pertain to, among other things: PCBs
`
`testing and reporting (Special Conditions II.B) and the proper execution of a biomonitoring
`
`program (Special Condition D).
`
`69.
`
`The Back River Permit General Conditions pertain to, among other things:
`
`required notifications of any permit noncompliance (General Condition III.B.1), requirements to
`
`provide information to regulators upon request (General Condition III.B.11), maintaining the
`
`Back River WWTP in efficient and good working order (General Condition III.B.3), and
`
`minimizing and preventing adverse impacts to waters of the state or to human health (General
`
`Condition III.B.4).
`
`70.
`
`The Back River Permit references civil and criminal penalties for violations of
`
`Permit Conditions (General Conditions C.15 and C.16).
`
`CAUSES OF ACTION
`
`Counts 1-15
`
`Count 1: Failure to Comply with the Patapsco Permit’s Effluent Limits
`
`71.
`
`72.
`
`Plaintiff realleges and incorporates by reference all preceding paragraphs.
`
`The Patapsco Permit requires compliance with state water pollution abatement
`
`statutes in particular Title 9, Subtitle 3 of the Maryland Environment Code. Permit II.C.13.
`
`Section 9-342 states that any person who violates a permit condition, including effluent limits, is
`
`8993442.1
`
`14
`
`

`

`Case 1:21-cv-03176-LKG Document 1 Filed 12/15/21 Page 15 of 29
`
`subject to civil and administrative enforcement action, including, but not limited to, injunctive
`
`relief and monetary penalties. In addition, each day a violation occurs is a separate violation of
`
`the permit and state law.
`
`73.
`
`For the Patapsco WWTP, DMR data from January 2017 - September 2021 show
`
`that Defendants violated the Patapsco Permit limits described above in Paragraph 57 at least 133
`
`times, for a total of 899 exceedance days, for various pollutants including nitrogen, phosphorus,
`
`TSS, enterococci, and BOD.
`
`74.
`
`Defendants have violated and are violating sections 301 and 402 of the CWA, 33
`
`U.S.C. §§ 1311 and 1342, and Md. Code Ann., Envir. §9-322 which prohibit the “discharge” of
`
`pollutants except in compliance with conditions of an NPDES permit.
`
`75.
`
`Each day during the last five years that Defendants exceeded effluent limits and
`
`continues to exceed is a separate violation of the CWA. Defendants are subject to civil penalties
`
`under CWA section 309(d), 33 U.S.C. § 1319(d), for which a penalty of up to $37,500 per day
`
`for each violation occurring through November 2, 2015, and $56,460 per day for each violation
`
`thereafter. 40 C.F.R. § 19.4.
`
`
`
`Count 2: Failure to Comply with Patapsco Permit Special Condition II.B.1 and II.F.4
`Requiring Adequate Testing and Reporting of PCBs
`
`76.
`
`77.
`
`Plaintiff realleges and incorporates by reference all preceding paragraphs.
`
`Special Condition II.B.1 of the Patapsco Permit requires Defendants to monitor
`
`PCBs year-round by reporting a 24-hour composite measure from a sample taken quarterly.
`
`Monitoring for PCBs and all other toxic chemicals monitoring required by the Patapsco Permit is
`
`required to be performed in accordance with protocols specified by the Department that include
`
`specifications of “analytical methodology, detection levels, holding times, preservation methods,
`
`sample types and reporting.
`
`8993442.1
`
`15
`
`

`

`Case 1:21-cv-03176-LKG Document 1 Filed 12/15/21 Page 16 of 29
`
`78.
`
`Based on information and belief, Defendants have not complied with the
`
`requirements of Special Condition II.B.1 described above. For example, Department inspections
`
`reveal that rinsate and equipment blanks have been collected incorrectly for the purposes of the
`
`PCB TMDL that applies to the Patapsco WWTP. Furthermore, Defendants were inaccurately
`
`reporting the results of the testing. Both total PCBs and individually measured congeners must
`
`be reported under Special Condition F(4) of the Patapsco Permit. In addition, Defendants
`
`neglected to report a second quarterly sample taken on January 12, 2021 and failed to report
`
`twelve PCB congeners that are specified in the Department’s “Reporting Requirements for PCBs
`
`(PCB Congeners by EPA method 1668 A or C Rev 11/9/2017)” guidance document.
`
`79.
`
`Defendants have continually failed to satisfy the requirements of Special
`
`Condition II.B.1, which is enforceable pursuant to the CWA, 33 U.S.C. § 1365(a)(1)(A).
`
`
`
`Count 3: Failure to Comply with Patapsco Permit Special Condition II.F Requiring Toxic
`Chemical Testing
`
`80.
`
`81.
`
`Plaintiff realleges and incorporates by reference all preceding paragraphs.
`
`Special Condition II.F of the Patapsco Permit requires toxic chemical testing
`
`concurrently with the biomonitoring program required elsewhere in the permit. Defendants must
`
`test effluent from the Patapsco WWTP for all chemicals identified in the Department’s Toxic
`
`Pollutant Monitoring Protocol and Reporting Requirements for Toxic Chemical Testing
`
`Analytical Data and must perform the tests in accordance with 40 CFR Part 136 and the
`
`Department-approved toxic chemical testing plan.
`
`82.
`
`Based on information and belief, Defendants’ inadequate testing and reporting of
`
`toxic chemicals has been an ongoing problem at the Facility. The Department’s May 2021
`
`inspection of the Patapsco Facility found that Defendants failed to meet the sampling and
`
`8993442.1
`
`16
`
`

`

`Case 1:21-cv-03176-LKG Document 1 Filed 12/15/21 Page 17 of 29
`
`analytical requirements for the 2021 Toxic Chemical testing and failed to properly collect rinsate
`
`and equipment blanks for toxic chemical testing.
`
`83.
`
`In addition, a routine inspection of the Patapsco WWTP by the Department on
`
`September 26, 2018, found that Defendants 1) did not quantify acrolein and cyanide to the level
`
`specified in the Permit, 2) used incorrect sampling methods for phenols, and 3) that the
`
`Department had “additional concerns regarding toxic chemical testing that will be resolved as a
`
`later date after further investigations and discussions with the permittee.”
`
`84.
`
`Defendants have continually failed to meet Special Condition II.F, which is
`
`enforceable pursuant to the CWA, 33 U.S.C. § 1365(a)(1)(A).
`
`
`
`Count 4: Failure to Comply with Patapsco Permit Special Condition II.B.2 Requiring
`Wastewater Capacity Management Plans
`
`85.
`
`Plaintiff realleges and incorporates by reference all preceding paragraphs.
`
`86. Wastewater Capacity Management Plans (“WCMP”) are required where a plant
`
`has a three-year average flow at or above 80% of its design capacity. Special Condition II.B.2
`
`requires the Patapsco WWTP to submit a Wastewater Capacity Management Plan (“WCMP”)
`
`within 90 days of the effective date of the permit.
`
`87.
`
`A three-year update of the WCMP for the period ending December 2020 is
`
`required.
`
`88.
`
`The most recent WCMP for Patapsco was the 2017 Wastewater Capacity
`
`Management Plan, submitted February 9, 2019. Defendants have not submitted an updated
`
`WCMP for the period of 2017-2020.
`
`89.
`
`Based on information and belief, Defendants have not complied with Special
`
`Permit Condition II.B.2 by failing to submit a three-year updated WCMP for the period ending
`
`8993442.1
`
`17
`
`

`

`Case 1:21-cv-03176-LKG Document 1 Filed 12/15/21 Page 18 of 29
`
`December 2020 to the Department. This constitutes a continuous enforceable violation of the
`
`CWA, 33 U.S.C. § 1365(a)(1)(A).
`
`
`
`Count 5: Failure to Comply with Patapsco Permit Special Condition II.M Requiring
`Mitigation of FOGs
`
`90.
`
`91.
`
`Plaintiff realleges and incorporates by reference all preceding paragraphs.
`
`Special Condition II.M requires the Patapsco WWTP to develop and implement a
`
`FOG mitigation plan that includes “a description of the measures that will be taken to achieve the
`
`maximum practicable reduction of fats oils and grease and implementation schedule.” The plan
`
`is required to include “[r]egular maintenance and repair of the skimmers, as required in the
`
`Department's Consent Order (CO-16-2405).”
`
`92.
`
`The Patapsco Permit requires Defendants to submit annual updates to the
`
`Department on all measures taken to comply with the FOG mitigation plan.
`
`93.
`
`Defendants have not conducted required maintenance and repair of the systems
`
`that control FOGs. The Department’s May 6, 2021 inspection of the Facility found that the
`
`current mitigation plan is not accurate or consistent with current Facility operations. The
`
`inspection noted that 1) only five of 18 primary settling tanks were operational; 2) planned
`
`replacement or refurbishment of the actuators, flight plant brackets, and scum troughs had not yet
`
`begun, and 3) most of the problems identified in the mitigation plan had not been corrected.
`
`94.
`
`Defendants did not submit the annual update for 2018, 2019, and 2020 on
`
`measures taken at the Patapsco WWTP to comply with the FOG mitigation plan.
`
`95.
`
`Based on information and belief, Defendants have not complied with Special
`
`Permit Condition II.M by failing to maintain FOG control systems and by failing to submit
`
`annual updates to the Department. This constitutes a continuous enforceable violation of the
`
`CWA, 33 U.S.C. § 1365(a)(1)(A).
`
`8993442.1
`
`18
`
`

`

`Case 1:21-cv-03176-LKG Document 1 Filed 12/15/21 Page 19 of 29
`
`
`
`Count 6: Failure to Comply with Patapsco Permit General Condition III.A Requiring
`Monitoring and Reporting
`
`96.
`
`97.
`
`Plaintiff realleges and incorporates by reference all preceding paragraphs.
`
`General Condition A of the Patapsco Permit contains num

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