CLEAN AIR ACT CHALLENGES
United States District Court for the District of Maryland
Chesapeake Bay Foundation, Inc, et. al. v. United States Environmental Protection Agency, et. al.
Case No.: 1:17-cv-02939-JKB
Maryland suffers from high concentrations of ground level ozone or smog largely due to the pollution emitted from coal fired power plants (electric generating units) located in upwind states. Despite several meetings between Maryland and those states, none would to take action to curb their pollution. The Clean Air Act (CAA) includes a "Good Neighbor Provision" requiring each state to ensure that its air pollution will not interfere with the air quality standards in downwind or neighboring states. If a state does not comply, a downwind state can file a petition under Section 126 of the Act with US Environmental Protection Agency (EPA) asking it to step in.
On November 16, 2016, the State of Maryland submitted a Petition to the Administrator of the federal Environmental Protection Agency . The Petition requested that EPA make a formal finding that the air pollution from 36 power plant units in Indiana, Kentucky, Ohio, Pennsylvania and West Virginia are emitting air pollutants in violation of the provisions of the CAA and are significantly contributing to Maryland's inability to meet the federal ground level ozone standard thereby creating a human health hazard.
The CAA includes a "Good Neighbor Provision" requiring each state to ensure that its air pollution will not interfere with the air quality standards in downwind or neighboring states. Under the CAA, the EPA is required to hold a public hearing and respond to Maryland's petition within 60 days. EPA did not respond to Maryland's petition nor did it hold a public hearing.
As a result, on July 20, 2017, Maryland and the Chesapeake Bay Foundation ("CBF") filed separate notices with EPA, pursuant to 42 U.S.C § 7604(b), of their intentions to file a citizen suit against the EPA and the Administrator of the EPA for failure to perform a nondiscretionary duty as mandated by Section 126 of the CAA.
EPA failed to respond to Maryland and CBF's notices. On September 27th, Maryland filed a Complaint for Injunctive Relief with the United States District Court for the District of Maryland against the EPA and its Administrator, Scott Pruitt. CBF and our partners, Adirondack Council, Chesapeake Climate Action Network, Environmental Defense Fund, Environmental Integrity Project, Physicians for Social Responsibility, Chesapeake, Inc. and Sierra Club filed a similar Complaint on October 4th. It is anticipated that CBF's and the State's cases will be consolidated.
This case is being handled by the Vice President for Litigation Jon Mueller along with litigation staff attorney Ariel Solaski.
MARYLAND HABITAT AND NATURAL RESOURCES CASES
Maryland Court of Special Appeals
Vieglais v. Dep't of Natural Resources
Case No.: CSA-REG-0080-2017
The owners of Beehive Beach Farm, which consists of approximately 28.09 acres of land and is located on Sahlin Farm Road in Annapolis, Maryland, sought a variance to construct a home near steep slopes descending to Hopkins Creek on the Severn River. The Administrative Hearing Officer (“AHO”) denied the variance after a hearing on December 2, 2014 stating that the conditions for granting a variance were not met.
Prior to the AHO decision, the Maryland Department of Natural Resources (“DNR”) disapproved the proposed development of the property, asserting that it violated the terms of the Forest Conservation Easement (“FCE”). The purpose of the FCE is to restrict and limit the use of land and contiguous waters to preserve the state's forests and protect the Chesapeake Bay Critical Area shoreline and aquatic habitat. The FCE prohibits construction of new structures within the Critical Area Buffer. Approximately 19.07 acres of the Vieglais property is located in the critical area and is classified Resource Conservation Area ("RCA").
As a result, the property owners filed a lawsuit against DNR in the Circuit Court for Anne Arundel County on July 31, 2015 alleging breach of contract and requesting injunctive and declaratory relief pertaining to the provisions of the FCE. They claim DNR violated the terms of the FCE, by not allowing them to construct a new dwelling on their waterfront property at the location they desired. They also appealed the AHO decision. However, the administrative appeal was stayed pending the outcome of the suit against DNR.
Conservation easements serve a critical role in preserving riparian forests and other sensitive lands from development in the Chesapeake Bay watershed. CBF filed a Motion to Intervene in the Circuit Court action on December 11, 2015, as an interested person on the side of DNR to ensure enforcement and interpretation of the FCE and on March 15th CBF's Motion to Intervene was granted. After Discovery was completed, DNR, CBF and fellow co-intervenors (James and Sylvia Earl, Sherwood Forest Company and Sherwood Forest Club, Inc.) filed Motions for Summary Judgement asserting that Defendants are entitled to Judgment in their favor as a matter of law. Plaintiffs also filed a Motion for Summary Judgment. A Complex Motions Hearing was held on December 19, 2016 and on January 26th, Judge Goetzke Ordered summary judgment as to liability and damages in favor of DNR and the Intervenors against the Plaintiffs under Count 1 of the Complaint (Breach of Contract). However, the Judge denied judgment under Counts II through V (Declaratory Relief). Plaintiff's Motion for Summary Judgment was also denied. Trial was held the week of February 6, 2017. At the conclusion of trial, Judgment was granted in favor of DNR and the Intervenor Defendants.
On March 30, 2017, Plaintiff's noted an Appeal to the Maryland Court of Special Appeals based on the following Issues:
- Whether the Circuit Court erred in granting Motion to Intervene as to James and Sylvia Earl, The Sherwood Forest Club and Chesapeake Bay Foundation.
- Whether the Circuit Court erred in granting Summary Judgment as to liability and damages in favor of the Defendant and Intervening Defendants.
- Whether the Circuit Court erred in granting Motion for Judgment in favor of Defendants and Intervening Defendants.
- Whether the Circuit Court erred in its Declaratory Judgment in favor of Defendants and Intervening Defendants.
A briefing schedule has been issued by the Court and Appellant's brief is due by November 9, 2017. Appellee's briefs, including CBF, are due by February 14, 2018. Oral arguments will be held in April in front of a three-judge panel in the Maryland Court of Special Appeals located in Annapolis, Maryland.
This case is being handled by CBF Litigation Attorney Paul Smail.
Maryland Court of Special Appeals
Chesapeake Bay Foundation, Inc., et. al. v. K. Hovnanian's Four Seasons at Kent Island, LLC, et. al.
Case No.: September Term, 2016 No. 1705
The Maryland Board of Public Works voted 2-1 on November 18, 2015 to approve a Tidal Wetlands License for K. Hovnanian to build an active adult community known as Four Seasons on approximately 556 acres of land on Kent Island in Queen Anne's County, Maryland. The license authorizes K. Hovnanian to 1) drill a sewer line beneath the State wetlands of Cox Creek; 2) construct a community pier extending into Chester River; and, 3) discharge fill from the development project's stormwater management system into Cox Creek and the Chester River.
CBF, along with our co-petitioners Queen Anne's Conservation Association, Midshore Riverkeeper Conservancy, Chester River Association, and neighbors Robert Foley and Hal Fisher filed a Petition for Judicial Review of the Board's decision with the Queen Anne's County Circuit Court on December 18, 2015.
This matter has been ongoing for some time. K. Hovnanian applied for a Tidal Wetlands License in 1999 and was initially denied on Mar 23, 2007. K. Hovnanian appealed this decision to the Maryland Court of Appeals and the case was remanded back to the Board of Public Works for further consideration. K. Hovnanian submitted a modified proposal to the Board in May, 2013. However, MDE did not provide for public hearings or allow public comments on the revised License application regarding the current stormwater management system. As a result, the Board should not have voted to approve the License. CBF is committed to restoring water quality in the Chesapeake Bay and preserving the conservation of wetlands from polluted stormwater runoff.
A Hearing in this matter was held on June 28, 2016 and on September 20th, Judge John W. Sause, Jr., issued a Memorandum Affirming the decision made by the Board of Public Works approving the Tidal Wetlands License. CBF and our co-petitioners filed an Appeal of this decision to the Maryland Court of Special Appeals on October 20, 2016. Briefing is completed and Oral Arguments were held on October 12, 2017.
This case is being handled by CBF Litigation Attorney Paul Smail.
MARYLAND CRITICAL AREA CASES
Anne Arundel County Board of Appeals
In the Matter of Snyder Development Corporation and Snyder/Gladstone, LLC.
Case No.: BA 8-16A
Snyder Development Corporation is proposing to build a subdivision, known as Turtle Run, directly on the banks of Deep Cove Creek in Churchton, Maryland. The subdivision is located entirely within the Critical Area. On March 2, 2016, the Anne Arundel County Office of Planning & Zoning (OPZ) granted a Conditional Sketch Plan approval for the Turtle Run subdivision. The approval allows the developer to transfer building density from non-contiguous parcels located outside of the Critical Area or in the Limited Development Area (LDA) to separate property that is located entirely within the Resource Conservation Area (RCA). This transfer would allow the developer to reconfigure lots and transfer density within the critical area. The actions of the OPZ are contrary to the purpose and intent of critical area and county law.
On April 1, 2016, CBF filed an appeal of OPZ's Conditional Sketch Plan with the Anne Arundel County Board of Appeals. A similar appeal was filed by SACReD, West/Rhode Riverkeeper and local property owners. Hearings in this case began on September 7, 2016 and continue through March 2018.
This case is being handled by CBF Litigation Attorneys Ariel Solaski, Paul Smail, and Jon Mueller.
CLEAN WATER ACT PERMIT CHALLENGES
United States Court of Appeals for the District of Columbia Circuit
Chesapeake Bay Foundation, Inc and Potomac Riverkeeper v. United States Environmental Protection Agency
Case No.: 17-1039
The U.S Environmental Protection Agency ("EPA") released a draft stormwater Construction General Permit (‘Permit") in 2015. The Permit covers basic erosion and sediment control runoff from construction sites under the Federal Clean Water Act. The Permit covers the states and tribal jurisdictions that have not been delegated authority to issue such permits. In the Chesapeake Bay watershed, only the District of Columbia is covered under this federal Permit. CBF provided comments on the draft Permit that was issued in 2015 with both American Rivers and the Potomac Riverkeeper joining us. In their comment letter, CBF raised issues related to the relatively small size of the District and the need for the permit to provide standards for the District alone, as well as shortening the standard period for how long soils on construction sites may remain un-stabilized from fourteen days to seven.
After reviewing the comments filed, on January 25, 2017, EPA issued the current Permit which became effective on February 16th. The National Association of Homebuilders ("NAHB") filed a Petition for Review of the Permit in the United States Courts of Appeals for the District of Columbia Circuit. CBF and Potomac Riverkeeper filed a separate Petition for Review on May 25th out of concern that NAHB could further challenge the minimum standards in the Permit. Since the standards in the federal Permit serve as the regulatory "floor" for States that issue their own construction stormwater permits, any weakening of the Permit would harm water quality in the Chesapeake Bay by allowing the discharge of additional sediment into local tributaries.
On May 25th, the Court issued an Order consolidating CBF and NAHB's cases. Petitioner's initial submissions are due by February 1, 2018.
This case is being handled by CBF Litigation Attorney Paul Smail.
United States District Court for the District of Maryland
Potomac Riverkeeper and Chesapeake Bay Foundation v. Washington Suburban Sanitary Commission
Case No.: 14-CV-00417-TDC
The Potomac Water Filtration Plant, owned and operated by Washington Suburban Sanitary Commission (WSSC), provides the majority of the public drinking water supply in Montgomery County and Prince George's County, Maryland. The facility is located on the south branch of the Potomac River approximately 10 miles northwest of Washington, D.C. and within the Chesapeake Bay watershed. The plant removes water from the Potomac River, filters and disinfects it, transfers the treated water to a drinking water reservoir, and discharges the remaining wastewater back into the Potomac River. WSSC has chronically failed to meet monthly and daily effluent limitations for sediment and aluminum in the wastewater.
On February 12, 2014, CBF and Potomac Riverkeeper filed a lawsuit in the U.S. District Court of Maryland against WSSC for significant and ongoing violations of the Clean Water Act including National Pollutant Discharge Elimination System (NPDES) permit violations. Thereafter, the Maryland Department of the Environment (MDE) filed a Notice of Intent to Sue WSSC. CBF served WSSC with Interrogatories and Request for Production of Documents while settlement negotiations were ongoing and a consent decree was pending.
After over six months of settlement negotiations between CBF, co-plaintiff Environmental Integrity Project, WSSC and MDE, on October 20, 2015, WSSC's board voted unanimously to approve the Consent Decree and significantly reduce the amount of chemicals it releases into the Potomac River from one of its water purification plants. WSSC also agreed to pay a $100,000 state penalty and implement up to $8.5 million worth of short-term pollution control projects at the plant. After receiving comments from the United States Department of Justice pursuant to the Clean Water Act, the United States District Court granted an Order for Entry of the Consent Decree on April 15, 2016. Entry of the Consent Decree by the Court begins the process of planning and implementing Supplemental Environmental Projects CBF and its partner negotiated as a term of the Consent Decree.
The agreement is an important victory for clean water in the Potomac River and the Chesapeake Bay. In addition to the other commitments, WSSC will pay $1 million to for environmental projects that help reduce sediment pollution in the Potomac drainage area. WSSC will have up to ten years to complete the long term improvements to the plant.
CBF's role continues as it evaluates WSSC's progress in fulfilling the terms of the Consent Decree.
This matter is being handled by CBF Litigation Attorneys Paul Smail and Ariel Solaski, along with counsel from the Environmental Integrity Project.
VIRGINIA STORMWATER MANAGEMENT
In The United States District Court For the Western District of Virginia
Norfolk Southern Railway Company v. City of Roanoke
Case No.: 7:16-v-cv-00176
The Commonwealth of Virginia instituted a program allowing localities the ability to assess fees from landowners, including corporate and individual citizens, to address stormwater carrying pollution that runs into local streams and rivers. As a result, The City of Roanoke established an Ordinance which generates revenue for stormwater management activities. The Ordinance institutes a fee assessment structure based upon the amount of impervious surface identified on improved parcels of land.
Norfolk Southern Railway Company (NSR) filed suit in the U.S. District Court for the Western District of Virginia, on April 12, 2016, seeking a partial exemption from the City's fee assessment. NSR claims the fees are unlawful under the Federal Railroad Revitalization Reform Act of 1976 because railroad tracks are not exempted from the City's Ordinance, but lawns are exempted. NSR also claims that the Ordinance violates the anti-discrimination provisions of the Federal Railroad Reform Act. The City of Roanoke filed a Motion to Dismiss the lawsuit on June 6th.
CBF filed a Motion For Leave to Intervene on July 8th as NSR's suit attacking the fee assessment threatens to challenge an important program by Virginia to fund stormwater management locally and reduce pollutants to the Chesapeake Bay.
A Hearing on CBF's Motion to Intervene was held on September 14, 2016 and on October 19th, the Court Granted CBF's Motion to Intervene under Federal Rules of Civil Procedure 24(b) allowing permissive intervention. As a result, CBF is now an intervenor-defendant in this case supporting the City of Roanoke and the fee assessment.
The Court also heard the City of Roanoke's Motion to Dismiss on September 14th. CBF provided arguments supporting the City's motion. After hearing arguments on both sides, on October 6th, the Court issued an opinion Denying Without Prejudice the Motion to Dismiss filed by the City. However, the Court narrowed the issues to whether the City's stormwater utility fee is a "tax" for purposes of the NSR, and not a fee. In addition, the Court allowed limited discovery on this single issue. The Discovery period closed on March 6, 2017. All parties filed cross motions for summary judgment on April 3rd. The City of Roanoke also renewed its Motion to Dismiss and a Motions Hearing was held on May 15, 2017. During the hearing, the Court instructed the City of Roanoke and CBF to respond to a newly minted argument presented by NSR related to the City's stormwater management system. Briefing on this issue was completed on June 15, 2017.
This case is being handled by CBF Litigation Attorney Jon Mueller and staff counsel in the Virginia Office.
U.S. Court of Appeals for the D.C. Circuit
White Stallion Energy Center, et al. v. EPA
Case No.: 12-1100
Since 2005, CBF has successfully partnered with other organizations in court to require stringent controls on coal-fired power plants to reduce air borne pollution. In collaboration with others, CBF’s legal actions led to the creation of federal regulations, called the Mercury and Air Toxics Standards (MATS), which are designed to limit the emission of mercury and other toxic air pollutants. The reduction of airborne mercury will reduce the amount of mercury present in fish found within the Chesapeake Bay watershed and protect brain development in children, among other things. However, the MATS have been repeatedly challenged in court by the electric generating industry and some states. While those actions have been defeated in the lower courts, the challengers asked the U.S. Supreme Court to overturn those decisions and vacate the MATS.
CBF joined in the filing of a brief opposing the challengers' petition for certiorari. Unfortunately, the petition was granted and the case was heard by the Supreme Court on March 25, 2015, to consider whether EPA should have evaluated the costs of the new rule versus the benefits to human health and the environment before it decided to develop the regulations.
On June 19, 2015, in a 5-4 decision, the United States Supreme Court ruled against EPA and remanded the case back to the United States Court of Appeals for the D.C. Circuit for review of the economic impacts of the rule. The Supreme Court found EPA should have considered industry's costs to comply with the standards before it developed the rule. This, despite the fact that EPA did consider those costs after deciding that mercury and other hazardous pollutants emitted by power plants presented a significant health risk requiring regulation.
After the case was remanded, the National Mining Association and other parties asked the court to throw the standards out. On December 15, 2015, the D.C. Circuit rejected this attempt and remanded the proceedings to EPA without vacating the Mercury and Air Toxics Standards final rule. Undeterred, on March 14, 2016, the coal-industry allied states filed another Petition for Writ of Certiorari with the United States Supreme Court. The Petitioners are requesting the Court review the D.C. Circuit Court's decision not to vacate the MATS rule. CBF joined the Intervenor's Brief in Opposition to the Petition on April 13th. On June 13th, the United States Supreme Court denied the industries Petition and the case continued in the Circuit Court.
EPA completed its economic analysis supporting the rule and on April 25, 2016, submitted its Supplemental Findings in response to Michigan v. EPA. A day later, Murray Energy and other industry groups filed a petition seeking review of EPA's findings in the United States Court of Appeals for the D.C. Circuit. CBF and other environmental groups and organizations filed a Motion For Leave to Intervene opposing the petition. Our Motion to Intervene was granted on August 3, 2016.
Oral Arguments were scheduled for May 18, 2017 in the United States Court of Appeals for the D.C. Circuit. However, the government moved to hold the hearing in abeyance while it reconsidered its position supporting the rule in response to a recent Presidential Executive Order. The government must give the court periodic status reports on its progress reviewing the rule. It is expected that the agency will go through administrative rulemaking and attempt to rescind the rule. We continue to monitor the Federal Register for any developments and will take appropriate action to protect the rule which is already in place and with the majority of affected power plants in compliance reducing mercury and air toxics.
CBF has intervened in another industry lawsuit targeting the mercury and air toxics standards for power plants. In this challenge, industry groups have appealed EPA's denial of their petitions asking the agency to reconsider the standards. This case is pending in the United States Court of Appeals for the District of Columbia Circuit and on hold pending resolution of the above appeal challenging the MATS rule.
These matters are being handled by counsel for Earthjustice and CBF Vice President for Litigation Jon Mueller. CBF is participating with a number of other environmental groups, including Sierra Club and the Natural Resources Defense Council, as well as public health organizations like the American Lung Association.
CONOWINGO DAM RELICENSING
Federal Energy Regulatory Commission
Project No.: P-405-106
Since its construction in 1928, the Conowingo Dam on the Susquehanna River in Maryland has been trapping sediment and phosphorus pollution in the reservoir behind the structure. Today researchers estimate the reservoir is almost completely filled and, as a result, has lost much of its capacity to trap sediment and nutrients. In particular, during big storms when the flow through the dam is high, these sediments are scoured from the reservoir and released into the river below.
In August, 2013 CBF intervened in the Federal Energy Regulatory Commission’s (FERC) relicensing proceedings for the dam. Intervention ensures CBF’s voice is heard in the process, and positions CBF for a legal challenge if necessary. CBF has provided comments on FERC’s Draft Environmental Impact Statement (DEIS). FERC issued the Final EIS on March 11, 2015 recommending the relicensing of all three projects (Conowingo, Muddy Run, and York Haven) with certain modifications and additional measures. FERC will decide whether to issue a license after Exelon conducts a sediment study and after Maryland Department of the Environment issues a water quality certification for the projects under Section 401(a)(1) of the Clean Air Act. In April 2016, Exelon resubmitted their application for a water quality certification with the State of Maryland. Maryland issued a public notice of the proposed relicensing of Conowingo on July 10, 2017. CBF filed comments on the application on August 23, 2017 detailing the impacts of the Dam on Maryland's water quality and the achievement of the water quality standards associated with the Chesapeake Bay TMDL for nutrients and sediments. A public hearing regarding the water quality certification will be held on December 5, 2017.
CBF continues to monitor the projects for any new developments and will file comments or take action when necessary to protect water quality and aquatic resources.
This matter is being handled by CBF Litigation Attorney Paul Smail, CBF senior scientist Beth McGee and CBF’s Maryland Office.
The Sparrows Point steel mill is located on the banks of the Patapsco River in Baltimore, Maryland. The original owner, Bethlehem Steel Corporation (BSC), operated on the roughly 2,300 acre site for more than 80 years, making iron and steel and building ships. Hazardous wastes were deposited on the site and in the adjacent waterways.
In the late 1990s, the U.S. Environmental Protection Agency (EPA) and the Maryland Department of the Environment (MDE) sued BSC for numerous hazardous waste violations. The case was settled in 1997 when the parties signed a consent decree that required BSC and any subsequent owner to correct the violations, perform the necessary studies to fully evaluate the site, and cleanup the pollution both on- and off-site. BSC declared bankruptcy in 2000 and ownership of the property has changed hands several times since. The Russian steel company Severstal took ownership from ArcelorMital in 2008 but sold the site in 2011 – RG Steel (a subsidiary of The Renco Group) took control of the mill at this time. RG Steel went on to file for bankruptcy protection in Delaware federal court a year later.
The Chesapeake Bay Foundation has been directly involved in a number of federal lawsuits and bankruptcy proceedings related to the Sparrows Point facility, including Chesapeake Bay Foundation et al v. RG Steel Sparrows Point, RG Steel Sparrows Point v. EPA and MDE, and RG Steel's filing for bankruptcy in federal court in Delaware.
Cleaning-Up Sparrows Point
It has been nearly two decades since EPA and MDE signed a consent decree with the then owners of the Sparrows Point Steel Mill resolving litigation for numerous federal and state hazardous waste violations. However, other than removal of chromium from groundwater beneath the Rod and Wire Mill, very little clean-up of hazardous waste has occurred since then. In fact, environmental monitoring suggests that hazardous waste continues to leave the site from the Coke Point area, contaminating the adjacent Patapsco River and Bear Creek.
The new owner of the site, Sparrows Point Terminal, LLC, now known as Tradepoint Atlantic (TPA), entered into a settlement agreement with EPA and an administrative consent order with MDE. The agreement with EPA waives claims for contamination found offshore of the plant site which left the site prior to SPT's purchase of the property. In exchange, TPA committed $3 million to investigate and remediate offshore contamination. Under the consent order, TPA has committed $46 million to undertake investigation and remediation work on the former steel mill property.
CBF continues to monitor the progress of the on-site work, the offshore investigation, and the new owner’s voluntary cleanup efforts. When EPA refused to study the toxicity of the sediments offshore from the plant site, we hired an outside consultant to analyze sediment collected from the river bottom for toxicity. Several of those samples were found to be toxic to bottom dwelling organisms and fish. CBF also continues to advocate for the new owners’ compliance with state and federal environmental laws and to ensure it will undertake all necessary on-site work in accordance with the consent decree as well as federal and state law.
CBF and Blue Water Baltimore have filed joint comments on several environmental remediation measures, including the proposed remedy for Tin Mill Canal, which has long been recognized by EPA and MDE for hazardous waste activities.
All Sparrows Point matters are being handled by CBF Vice President for Litigation Jon Mueller and Litigation Attorney Paul Smail, along with counsel for Blue Water Baltimore, Inc.