by Van Smith
Published by City Paper, June. 4, 2014
For years, people in Baltimore have lived with the presence of sewage in local waters, be it in the harbor, the Jones Falls, the Gwynns Falls, Herring Run, or any of their tributaries. City Hall, in order to avoid costly litigation and the likelihood of extreme penalties for failing to comply with the Clean Water Act for this problem, in 2002 agreed to spend about a billion dollars over 14 years to fix its leaky sewer system. Since then, users of the system have seen their water-and-wastewater bills rise dramatically, as efforts to pay for the costly repairs have mounted. Yet still, the sewage leaks, the air reeks, and waterways remain fouled.
Now we know why: Blue Water Baltimore, a non-profit organization that seeks to improve the degraded water quality of the area’s waterways, today filed lengthy legal papers demonstrating the abject failure of city, state, and federal regulators to properly uphold their legal duties under the Clean Water Act and the 2002 agreement, known as a consent decree, that avoided costly litigation. In seeking to intervene in the federal court case under which the consent degree was entered, BWB’s lawyers have done an admirable job demonstrating the facts of the matter: despite underwriting expensive efforts to deliver a sealed sewer system that keeps waters from being fouled by delivering sewage only to treatment plants, the city’s residents still live cheek-to-jowel with sewage that’s erupting up through manhole covers in storms, steadily flowing directly into the Jones Falls from an outfall, and chronically leaking from upstream pipes that haven’t been replaced or repaired.
City Paper published a painstakingly researched article about this problem in 2007, and the regulators’ response at that time was utterly naïve. “I am not aware of any continuous discharges of untreated sewage going on,” said Angela McFadden, a high-ranking EPA water-pollution enforcer – a declaration that many Baltimore residents would find laughable, then and now. Eventually, CP‘s follow-up coverage included the EPA getting its hackles up about the problem and the city admitting to under-reporting and professing to make much-needed improvements. Now, EPA and the city are reportedly negotiating to revise the consent decree so that it’s 2016 deadline for fixing the system can be extended, and BWB is asking to be allowed in as a party to the litigation in order “to give citizens a voice in the revision process and to formally request that all parties do more to stop sewer spills and protect public health,” according to an email BWB sent out today.
According to the filings, BWB is asking the federal court for six things: “1. A declaration that the City of Baltimore is in violation of the Clean Water Act and the 2002 Consent Decree; 2. A modification of the 2002 Consent Decree to address the lack of compliance and enforcement of the City of Baltimore’s obligations; 3. An injunction against the City of Baltimore compelling compliance with the Clean Water Act and the 2002 Consent Decree; 4. An order enforcing the Clean Water Act and imposing civil penalties against the City of Baltimore pursuant to 33 U.S.C. §§ 1319, 1365; 5. An award of attorney’s fees and reasonable litigation expenses incurred in this case; and 6. Such other relief as this Court may deem appropriate.”
In building up to those requests, though, BWB’s filings, authored by its Covington & Burling attorneys, provide compelling evidence that Baltimore’s chronically leaking sewer system is far from repaired, despite huge public investments. Now that BWB has thrown down the gauntlet, accusing regulators at all levels of failing to protect the environment and public health in this arena, it’s up to U.S. District judge Frederick Motz, who presides over the case, to decide what is to be done.