Party Crasher: Clean-water group’s failed legal effort to help oversee Baltimore’s sewage-repair plan exposes lax enforcement

By Van Smith

Published by City Paper, Oct. 30, 2013

After years of watching state and federal regulators fail to enforce violations of Baltimore City’s 11-year-old agreement to fix its leaking sewer system, Blue Water Baltimore (BWB) this summer “went forward and took action,” says the clean-water group’s executive director, Halle Van der Gaag. But BWB’s bold step—litigating to become an intervening party in the 2002 lawsuit that crafted the “consent decree” that dictates how the city is to spend nearly $1 billion to overhaul its sewers—failed on Oct. 1.

That’s when U.S. District Judge J. Frederick Motz denied BWB’s motion to intervene, leaving intact the existing roster of parties: the U.S. Environmental Protection Agency (EPA) and the Maryland Department of the Environment (MDE), the plaintiffs who alleged the city was committing chronic violations of the federal Clean Water Act, and the defendant, Baltimore City, which avoided massive fines and legal costs by accepting the terms of the consent decree—but, as a result, had to send water and wastewater fees on users soaring in order to fund the required upgrades.

The system, though, remains rife with leaks and overflows—a point that BWB drove home in its legal filings, which also exposed seemingly lax enforcement by EPA and MDE for apparent violations of the consent decree.

In one instance, Baltimore City estimated that a sewage overflow on Herring Run last fall amounted to 8,100 gallons—versus the 800,000- to 1,000,000-gallon estimate calculated by BWB volunteer Thayer Young, an environmental engineer who lives nearby the spill and is an expert in tracking sewage contamination. What’s more, the city’s official report of the leak attributed it to wet weather from Superstorm Sandy, but Young observed the leak already occurring before the storm hit Baltimore.

“I believe that the City of Baltimore highly underestimated the flow rate and total sewage overflow volume” of this “sewage overflow incident,” Young concluded in an affidavit attached to BWB’s recent court filings. “Furthermore,” he added,” although Super Storm Sandy clearly exacerbated” the incident, “the overflow actually began at least 12 hours before the storm showed an impact” on the Herring Run’s water levels.

The discrepancy in the estimated amounts of leaked sewage is important not only because of public-health and environmental concerns arising from such a massive release into a Baltimore stream, but because the City of Baltimore, under the consent decree, is required to pay fines based on the amount of sewage it estimates was released. In this case, the city’s estimate was two orders of magnitude lower than Young’s, which was based on meticulous observations and technically proficient calculations based on video recordings and engineering concepts.

Yet, according to David Flores, BWB’s longtime water-quality manager who was recently appointed as Baltimore Harbor Waterkeeper—a BWB program that seeks to apply the law to attain cleaner water—“there hasn’t been any enforcement” by MDE or EPA over this incident.

In its legal filings, BWB’s attorneys wrote that the city’s estimate of the amount leaked during the incident is tantamount “to the flow rate from a standard drinking water fountain”—which photos of the leaking sewer give lie to—and that the city “has not provided any correction of its inaccurate volume estimates or any explanation as to how those estimates could be so far off the mark.”

When CP asked the two agencies and the city’s Department of Public Works (DPW) about this, EPA and DPW each provided a copy of an 80-page document prepared in May in response to BWB’s numerous concerns about ongoing sewer-related problems under the consent decree. On page nine, the document explains what was done: Last November, an inspection revealed “roots and debris” had clogged the sewer line, so it was cleaned and the manhole was rebuilt.

“It is believed that all of the problems causing previous overflows at this location have been resolved,” the document concludes—without addressing at all the seriously low-balled estimate of the size of the overflow.

“EPA understands that sewage discharges in Baltimore are a serious problem and we have been working with the State of Maryland and the City of Baltimore to curtail them,” EPA spokesperson David Sternberg writes in an email to City Paper, adding that “sanitary sewer overflows are being addressed within the context of the 2002 federal consent decree.”

But BWB’s court filings detailed numerous instances of apparent consent-decree violations by the city that appear not to have prompted any regulatory response by EPA or MDE. They included continuous leaks from a sewage structure and large periodic sewage overflows along the Jones Falls near the Baltimore Streetcar Museum, a stretch of the river where a heavily used pedestrian and bike path is located; evidence of unreported overflows from the Jones Falls Pumping Station in Hampden; a June 2012 week-long sewage discharge into the harbor, of unknown origin; repeated sewage overflows on South Clinton Street in Canton; and failures to adequately clean up or warn the public of sewage contamination after overflows occur.

The 80-page document that EPA and DPW provided to City Paper addresses most of the issues BWB raised—but it does not indicate that any penalties or other enforcement action was taken by federal and state regulators as a result. It merely explains the problems and how they are being addressed.

After helping to document all of these problems, Flores has been disappointed by the official response. “We documented all the violations that we observed,” he says, and put them “in a written report to EPA and MDE, and rather than investigate and enforce them, they requested a response from Baltimore City, which was inadequate.”

Van der Gaag says she’s “disappointed” and “frustrated” that Motz denied BWB’s attempt to intervene in the consent decree, because having a citizen group at the table would help “ensure accountability” in the sewer-upgrade process. So far, she points out, “hundreds of millions of dollars are being spent with very little outcome that the water quality is getting better.”

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