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Home , Antietam Creek, Liberty Reservoir, Maryland Route 65, Patapsco River, Pocomoke Sound, Prettyboy Reservoir

TABLE OF CONTENTS

INTRODUCTION ...... 2

CHAPTER ONE: LIBERTY AND PRETTYBOY RESERVOIRS ...... 5 I. Background ...... 5 II. Active Enforcement Efforts and Pending Matters ...... 8 III. The and Audit, May 29, 2013: What the Attorney General Learned ...... 11

CHAPTER TWO: THE WICOMICO ...... 14 I. Background ...... 14 II. Active Enforcement and Pending Matters ...... 16 III. The Wicomico River Audit, July 15, 2013: What the Attorney General Learned ...... 18

CHAPTER THREE: ...... 22 I. Background ...... 22 II. Active Enforcement Efforts and Pending Matters ...... 24 III. The Antietam Creek Audit, January 27, 2014: What the Attorney General Learned ...... 27

CHAPTER FOUR: UPDATES AND FOLLOW-UP ...... 30 I. Liberty and Prettyboy Reservoirs ...... 30 II. Wicomico River ...... 30 III. Antietam Creek ...... 31 IV. Miscellaneous ...... 31

CONCLUSION ...... 41

This report is available on the web at: http://www.oag.state.md.us/reports/2013EnvironmentalAudit.pdf

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INTRODUCTION

The is North America’s largest . Supplied by water from the Atlantic Ocean and from some 150 , streams, and creeks, the Bay contains more than 15 trillion gallons of water and has about 11,700 miles of shoreline.1 The Chesapeake Bay watershed encompasses more than 64,000 square miles and includes parts of six states – New York, , Delaware, , West , and Virginia – and all of the District of Columbia.2

For centuries, the Bay was the most bountiful and productive bay on the continent, providing the perfect natural habitat for thousands of different species. When Captain John Smith explored the region in 1607 and 1608, he described the Bay’s incomparable beauty and marveled at an abundance of fish in 3 greater numbers and variety than he and his men had ever seen. Today, however, the health of the Chesapeake Bay is poor, the result of hundreds of years of stress and pollution.

1 http://www.chesapeakebay.net/discover/bay101/facts. 2 Id. A watershed is an area of land that drains to a particular river, lake, bay or other body of water. Watersheds are also called “basins” or “drainage basins.” http://www.chesapeakebay.net/discover/baywatershed. 3 http://www.chesapeakebay.net/discover/bayhistory/johnsmith. 2

The decline of the Bay is linked directly to population growth within the Bay’s watershed, which has doubled since 1950. As of 2008, approximately 16.9 million people lived in the watershed, a number that is expected to climb above 20 million people by 2030. 4 The growth and attendant development are associated with three of the biggest problems endangering the Bay: excess nitrogen, phosphorus and sediments. 5 Urban and suburban stormwater runoff, which contains significant quantities of these pollutants, is now the fastest-growing source of pollution to the Bay.6 The agriculture industry supplies this growing population, and agricultural runoff is the single largest source of pollution to the Bay.7

The University of Maryland Center for Environmental Science (“UMCES”) releases an annual assessment of the health of the Chesapeake Bay habitat. The assessment measures a variety of indicators that are combined into a single index to grade each of the 15 Bay regions. In the 2012 Report Card released in July 2013, the Bay regions received grades ranging from B- to F, with the Bay receiving an overall grade of C.8

Beginning in April 2008, the Office of the Attorney General (“OAG”) embarked on a river-by-river environmental audit to identify problems at their source and formulate solutions that will benefit the Bay. Communities and local activists in these rivers’ watersheds are in the best position to know where problems exist, and the residents can offer practical and innovative solutions. This approach is central to the Attorney General’s environmental audits. Traveling into communities in each watershed, the Attorney General is learning first-hand from those who know, use, and love the State’s rivers. Each year, the Attorney General visits several of the Bay’s , meeting with citizens, environmental leaders, and elected officials to learn about the specific problems in each individual watershed, as well as pollution issues common throughout the greater Chesapeake Bay watershed.

4 http://www.chesapeakebay.net/content/publications/cbp_50513.pdf (p. 4). 5 See http://dnr.maryland.gov/bay/pdfs/LESbasinsum8505FINAL2007.pdf (p. 1). 6 See http://www.chesapeakebay.net/issues/issue/stormwater_runoff. 7 See http://www.chesapeakebay.net/indicators/indicator/reducing_nitrogen_pollution; http://www.cbf.org/Page.aspx?pid=913 (noting that agricultural runoff contributes 40% of the nitrogen and 50% of the phosphorus entering the Bay). In Maryland, manure and waste from commercial chicken production also play a large role in nitrogen pollution to the Bay. On Maryland’s Eastern Shore, chickens outnumber people approximately 1,000 to 1. Id. It is estimated that Maryland chickens create more than 1.5 billion pounds of manure annually, based on 2012 production numbers. See http://www.dpichicken.org/faq_facts/docs/factsmd2012.doc (on the number of chickens in Maryland in 2012; 304,000,000); J. Ronald Miner et al., Managing Livestock Waste to Preserve Environmental Quality (Iowa State University Press, 2000) (on the pounds of manure per chicken; approximately 5.88). 8 http://ian.umces.edu/ecocheck/report-cards/chesapeake-bay/2013/. The Bay received a C in 2012, a D+ in 2011, a C- in 2010, a C in 2009, a C- in 2008 and 2007, and a D+ in 2006. These report cards can be accessed at the same website by clicking on the appropriate year. 3

In 2012, the Attorney General expanded his environmental audits beyond the Chesapeake Bay watershed, visiting the , and the Coastal Bays.9 This report contains the results of the Attorney General’s 2013 environmental audits, which brought him to the Liberty and Prettyboy Reservoirs, Wicomico River and Antietam Creek. In each watershed, the Attorney General spent a full day meeting with local elected officials, environmental leaders, students, and citizens. He traveled by boat and walked the shores of the waterways to learn about the watersheds, their problems, and ongoing restoration efforts, and also to identify unique sources of pollution. River by river, the Attorney General’s focus is on gathering information from those most intimately familiar with the rivers in order to develop solutions and enhance enforcement of those environmental laws that serve to protect the rivers and the Chesapeake Bay. The ultimate goal of the Attorney General is to improve the health of the Bay and Maryland’s other bodies of water.

9 See http://www.oag.state.md.us/Reports/2012EnvironmentalAudit.pdf. 4

CHAPTER ONE: LIBERTY AND PRETTYBOY RESERVOIRS

I. Background

Liberty Reservoir

Located on the North Branch of the , the Liberty Reservoir watershed covers 104,800 acres (163.75 square miles). Most of the watershed is in eastern Carroll , with a small portion in southwestern County. The Patapsco River is the main flowing in and out of the reservoir.10 The 9,200-acre Liberty Reservoir tract is owned and managed by Baltimore City.11 Water from the reservoir flows by gravity through a 12.7 mile-long tunnel to the Ashburn Water Filtration Plant and, after treatment, provides the drinking water supply to Carroll and Baltimore counties and Baltimore City. The Liberty watershed is divided into seven sub-watersheds: Beaver Run, Bonds Run, Liberty Reservoir, Little Morgan Run, Middle Run, Morgan Run and North Branch.12

Liberty Reservoir, also known as Liberty Lake, is located on land that was once home to Oakland, a company mill town. The property was purchased by Baltimore City for the purpose of

10 See http://www.mde.state.md.us/programs/Water/TMDL/ApprovedFinalTMDLs/Pages/Programs/WaterPrograms/TMDL/approv edfinaltmdl/tmdl_final_liberty%20reservoir_bacteria.aspx. 11 http://www.dnr.state.md.us/wildlife/Publiclands/central/liberty.asp. 12 http://cityservices.baltimorecity.gov/dpw/waterwastewater03/wdwcf.htm. 5

constructing the reservoir. The mill closed in 1951 and the dam was completed in April 1954. The reservoir began to fill in July 1954 and was full by February 1956.13

Land use in the Liberty Reservoir watershed is 39% agricultural, 31% forest, 3% water and 3% urban. 14 Large urban areas include Hampstead, Manchester and Westminster; smaller urban areas include Eldersburg, Finksburg and Reisterstown. One of the area’s most notable environmental features is Soldier’s Delight Natural Environment Area, which has more than 39 rare, threatened or endangered plant species, as well as rare insects, rocks and minerals. The area surrounding the reservoir is open to hiking, boating, bird-watching, horseback riding, nature photography and hunting. Liberty Reservoir is also a popular location for fishing because the water is maintained for warm, cool and cold water fish species. Largemouth bass, smallmouth bass, bluegill, crappie, and white perch are among some of the warm water fish in the reservoir.15

The North Branch Patapsco River, West Branch Patapsco River, and Cranberry Branch and its tributaries have been designated for use as recreational trout waters and public water supply. Roaring Run has been designated as non-tidal cold water. Beaver Run, Cooks Branch, East Branch Patapsco River, Keysers Run, Locust Run, Morgan Run, Norris Run and all their tributaries have been designated as both non-tidal cold water and public water supply. Liberty Reservoir and all of its remaining tributaries have been designated for water contact recreation, protection of aquatic life, and public water supply uses.16

In 1996, Liberty Reservoir was listed as impaired by nutrients and sediments in the State’s 303(d) listing.17 and lead were removed from this list through a water quality analysis in 2003. While the reservoir itself is not listed as impaired by fecal bacteria, the tributaries of the reservoir were listed as impaired by fecal bacteria and biological impacts in 2002. A Total Maximum Daily Load18 for fecal bacteria has been issued to protect the reservoir’s beneficial uses. The listings for sediments, nutrients, and impacts to biological communities have not yet been addressed.19

13 http://msa.maryland.gov/megafile/msa/stagsere/se1/se5/008000/008200/008225/pdf/msa_se5_8225.pdf. 14 See http://www.mde.state.md.us/programs/Water/TMDL/Documents/BSID_Reports/LibertyRes_BSID_25Jan2012_final.pdf (pp. 4-5). 15 http://www.lakelubbers.com/liberty-reservoir-567/. 16 See http://www.mde.state.md.us/programs/Water/TMDL/Documents/BSID_Reports/LibertyRes_BSID_25Jan2012_final.pdf (pp. iii-iv). 17 The 303(d) list is a list that states are required to submit to the federal government under Section 303(d) of the federal Clean Water Act, in which they indicate which state water bodies do not meet minimum water quality standards. See http://water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/policy.cfm#statute (providing an overview of the Section303(d) statute); see also http://www.mde.maryland.gov/programs/Water/TMDL/Integrated303dReports/Pages/Programs/WaterProg rams/TM DL/Maryland%20303%20dlist/index.aspx (detailing Maryland’s approach to this reporting requirement). 18 On December 29, 2010, the EPA, together with Maryland, Virginia, Pennsylvania, Delaware, , New York, and the District of Columbia (the Bay jurisdictions), established a nutrient and sediment pollution diet for the Bay, consistent with Clean Water Act requirements, to guide and assist Chesapeake Bay restoration efforts. This pollution diet is known as 6

Both Baltimore and Carroll counties have individual permits to regulate stormwater discharges. Nonpoint sources of fecal bacteria are likely from , which is influenced by rainfall, soil type, land use and topography of the watershed. Many sources contribute to the fecal coliform in the surface runoff, including: manure, direct deposition from livestock, and excretions from pets and wildlife. Nonpoint source contributions from human sources also arise from failing septic systems. 20

Invasive species have caused environmental issues in the Liberty Reservoir area. Rare grassland plant species are threatened by invasive Virginia pines, and there are currently efforts to remove the pines in an attempt to return the area to its natural habitat.

Prettyboy Reservoir

Home to the headwaters of the , the Prettyboy Reservoir watershed covers 80 square miles in south York County, Pennsylvania, northeast Carroll County, Maryland, and the northwest corner of Baltimore County, where it drains into the Prettyboy Reservoir.21 The Prettyboy watershed is divided into 19 sub-watersheds: South Branch Gunpowder Falls, South Branch, Gunpowder Falls, Muddy Creek, Walker Run, Silver Run, Indian Run, Grave Run, Georges Run, Murphy Run, Poplar Run, Compass Run, Peggys Run, Prettyboy Branch, Frog Hollow, and Pretty Boy Direct Drainages 1, 2, 3 and 4.22

Before the Prettyboy impoundment was created by construction of the dam, the land was home to several successful paper mills owned by the Hoffman family.23 The Prettyboy dam was built in the early 1930’s to augment storage capacity at located 12 miles downstream of the dam. The city of Baltimore owns the dam, as well as about 7,000 acres surrounding the reservoir. 24

The Prettyboy Reservoir watershed extends some seven miles from east to west and about 10 miles from north to south.25 About 15% of the watershed is developed, 47% is agricultural, and 38% is

the Chesapeake Bay Total Maximum Daily Load (TMDL), or Bay TMDL. See http://www.mde.maryland.gov/programs/Water/TMDL/ChesapeakeBayTMDL/Pages/programs/waterprograms/tmdl/cb_tmdl /index.aspx. Meeting these reductions requires the participation and cooperation of local jurisdictions. 19http://www.mde.state.md.us/programs/Water/TMDL/Documents/BSID_Reports/LibertyRes_BSID_25Jan2012_final.pdf (pp. iii-iv). 20 Id. 21 http://www.prettyboywatershed.org/some-facts-about-prettyboy. 22 Prettyboy Reservoir Watershed Restoration Action Strategy (p. 4-2, Table 4-1), available at http://www.cbtrust.org/atf/cf/%7Beb2a714e-8219-45e8-8c3d- 50ebe1847cb8%7D/PRETTYBOY%20RESERVOIR%20WRAS.PDF. 23 Michael Wentzel, “The River You Drink”, The Gunpowder Served Man as Power Source for Varied Mills, available at http://lrr-bcw.info/Sun%20Article%20II.pdf (p. 4). 24 Mary Gail Hare, The Baltimore Sun, Forum Focuses on Watershed of Reservoir, available at http://articles.baltimoresun.com/2003-04-08/news/0304080261_1_watershed-reservoir-prettyboy. 25 http://www.baltimorecountymd.gov/Agencies/environment/watersheds/pbmain.html. 7

forest, wetlands and water.26 The watershed offers beautiful scenery with opportunities for biking, hiking, bird watching, boating, archery and fishing. The wildlife management area provides habitat for upland and forest wildlife species, including white-tailed deer, wild turkey, rabbit, squirrel and songbirds.27

Prettyboy Reservoir is the most impaired of Baltimore County’s three reservoirs and, as a result of dissolved phosphorus, has the highest algae levels. Likely sources for the high phosphorus levels include sediment erosion from farms, roads and construction sites, fertilizers on farm crops, home lawns and gardens, and wastewater treatment plants. 28 The Prettyboy Reservoir was first identified on Maryland’s 1996 303(d)29 list of water quality-limited segments as impaired by nutrients, sediment and metal. The 2002 Total Maximum Daily Load addressed additional impairments including bacteria, in fish tissue, and impacts to biological communities.30

The Baltimore County Department of Environment Protection and Resource Management initiated the Pretty Reservoir Watershed Restoration Action Strategy in 2005 to address issues relating to water quality, aquatic and terrestrial habitat.31 These efforts include: a reservoir management agreement between Baltimore City, Carroll County and Baltimore County, a forest management plan, a source water stewardship program, and source water assessments. The department’s goals include: improving and maintaining clean water, restoring and maintaining aquatic biology and terrestrial biodiversity, supporting wildlife habitat, recreation and aesthetics and promoting ecological and economic sustainability of the surrounding forest.32

II. Active Enforcement Efforts and Pending Matters

At the time of the Attorney General’s audit of the Liberty and Prettyboy Reservoirs, there were a number of ongoing significant matters in the watersheds, including:

MDE v. Carroll County Bureau of Resource Management and Kibler Construction Co., Inc. This case involves violations of Maryland’s non-tidal wetlands law at a new stormwater facility for the Westminster High School. The Carroll County Bureau of Resource Management obtained a non-tidal wetlands permit from MDE. Kibler Construction is the contractor on the project. On January 11, 2013, a representative from MDE observed soil and wood chips stockpiled

26 http://www.prettyboywatershed.org/some-facts-about-prettyboy. 27Department of Natural Resources, Prettyboy Reservoir (CWMA), available at http://www.dnr.state.md.us/wildlife/Publiclands/central/prettyboy.asp. 28 http://www.tpl.org/prettyboy-watershed. 29 See n. 17 , supra. 30 See http://www.mde.maryland.gov/programs/water/tmdl/approvedfinaltmdls/pages/programs/waterprograms/tmdl/approvedfinalt mdl/tmdl_final_gunpowder_p_sed.aspx. 31 Prettyboy Reservoir Watershed Restoration Action Strategy, available at http://www.cbtrust.org/atf/cf/%7Beb2a714e- 8219-45e8-8c3d-50ebe1847cb8%7D/PRETTYBOY%20RESERVOIR%20WRAS.PDF. 32 See generally, id. 8

within non-tidal wetlands and within the 25 foot buffer of the non-tidal wetlands, in violation of the permit. In addition, the temporary wetland crossing required by the permit had not been installed. When MDE inspected the property again on January 22 and February 5, soil and wood chips were again seen in the non-tidal wetlands and buffer. MDE referred the case to the Office of the Attorney General. At the time of the audit, settlement discussions were underway.

The Bare Property. On January 9, 2009, MDE learned of scrap tire stockpiles on property belonging to John and Carol Bare located at 1920 Bachman Valley Road in Manchester. Inspections between 2009 and 2012 confirmed the presence of an open solid waste dump, with two scrap tire stockpiles containing 300 to 400 tires. The Bares have not responded to a notice of violation, nor have they submitted a cleanup plan to MDE. The matter was referred to the OAG for review and enforcement, which was pending at the time of the Attorney General’s audit.

R.F. Associates Limited Partnership. On October 24, 2012, the Carroll County Bureau of Utilities (BOU) discovered that large quantities of solidified grease in a manhole on the property of the Robert Fields Shopping Center had caused a blockage resulting in a wastewater overflow of 15,000 to 30,000 gallons. The overflow entered a stormwater ditch that empties into a retention pond that flows into a tributary of Creek. BOU personnel opened the sewer lines and established normal flows, however, a second blockage occurred on November 21, 2012. To resolve the matter, R.F. Associates Limited Partnership would be required to clear any remaining grease from the manhole and sewer lines, properly maintain the system in the future, and pay a civil penalty for the violations. The matter was pending at the time of the audit.

Congoleum Corporation. Located in Finksburg, the Congoleum Corporation manufactures flooring felt from cellulose. The company, which holds a discharge permit for industrial use, reported numerous effluent violations that occurred between July 2011 and August 2012. The matter was under review by the OAG at the time of the audit.

Recycled Green Industries, LLC. From June through December of 2011, Recycled Green Industries accumulated food scraps and yard waste at its composting facility in Woodbine without controls in place to screen out inorganic refuse or to prevent pollution of ground and surface water, and without the required refuse disposal and discharge permits. MDE documented discharges of wastewater containing elevated levels of nutrients and bacteria from the facility. Recycled Green stopped accepting food waste in December 2011 and removed accumulated raw material and products containing food waste from the facility.

On March 5, 2013, MDE and Recycled Green entered into a settlement agreement and consent order to resolve violations of solid waste management, sediment pollution, and control. Under the consent order, the company agreed to perform a nature and extent of contamination study to determine the extent of groundwater and/or surface water pollution from its composting activities and to develop and implement a corrective measures plan to address any ongoing water pollution. Recycled Green will also submit a revised operations and maintenance plan, including procedures for screening incoming material and rejecting or properly disposing of materials that cannot be composted, for maintaining aerobic conditions in compost piles, and for ensuring that the facility meets the operational and product quality standards set by the Department of Agriculture. In addition, Recycled Green agreed

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to pay civil penalties of $50,000; an additional penalty of $25,000 was held in abeyance pending completion of the required corrective action.

Forest Service. In the early 2000s, the Maryland Department of Natural Resources (DNR) began working with the Baltimore City Reservoir Management staff on a forest management plan based on sustainable forestry principles. The city subsequently expanded deer hunting from the Prettyboy and Liberty Reservoirs down to the Loch Raven area, but deer browse and invasive species remained problematic. In 2010, DNR and Baltimore City worked to implement the next step of the forest management plan, doing some demonstration harvests to gauge seedling response and establishing some deer exclosures to understand effects of deer browse on seedling survival and invasive species growth. Invasive species have spread substantially in the forest since the plan was first initiated and are likely to be an ongoing management challenge. A meeting was scheduled in June 2013 to establish the next steps in keeping the forests healthy into the future, most likely related to aging pine plantations that are very susceptible to expected insect pests like Sirex wood wasp.

In addition to the work with the reservoir properties, DNR is piloting a landscape scale stewardship planning project in Baltimore County, including the reservoir watersheds. The intent is to recruit adjacent landowners in forest patches important for water quality and encourage forest management for healthy forests and long-term retention of land in forest. This is being done in partnership with Baltimore County, and two contractors are working on different approaches to developing landscape-scale plans.

Freedom District Wastewater Treatment Plant. The Maryland Department of Environmental Services (MES) owns and operates the Freedom District Wastewater Treatment Plant (WWTP) near Sykesville. The facility was built in the 1970s and has a permitted flow of 3.5 million gallons a day. Under the Bay Restoration Program, the plant must be upgraded to meet an ENR (enhanced nutrient removal) level of treatment. Following a delay in securing State funds that were needed to finance the upgrade, MES entered into a consent agreement with MDE that requires specific dates for the upgrade: start design by November 11, 2012; begin construction by August 1, 2014; and substantially complete construction by August 1, 2016. As of May 2013, MES was managing the design, which was 60% completed. However, in mid-May 2013, MES officials learned for the first time that in 2010, when the Carroll County Commissioners updated the County Comprehensive Plan, they decided to expand the plant’s capacity from 3.5 to 5 million gallons per day without seeking State approval. The physical size of the site where the WWTP is located will make it very difficult to expand the number of tanks needed for the treatment process. The tanks being designed for the ENR upgrade could be modified to be made slightly deeper, which would provide some of the increased capacity, but any change in the design at this point would require the county to agree to pay all of the associated cost increase. Further, MDE would need to agree to an extension of the deadlines in the consent agreement, as a design change would make it difficult to start construction in August of 2014. At the time of the audit, there was no indication that the county had such funding available.

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III. The Liberty Reservoir and Prettyboy Reservoir Audit, May 29, 2013: What the Attorney General Learned

The Attorney General conducted an audit of the Liberty and Prettyboy Reservoirs on May 29, 2013. He was accompanied by 10 members of his staff, including the special assistant for the environment, principal and deputy counsel to the Maryland Department of the Environment, principal counsel to the Maryland Department of Natural Resources, and principal counsel to the Maryland Department of Environmental Services.

He began the day in Eldersburg meeting with elected officials, including the Carroll County court clerk and the mayors of Taneytown and New Environmental leaders meeting Windsor. The Attorney General then went to the north dock of the Liberty Reservoir, where he was briefed by an officer with the Baltimore Environmental Police and a representative of the Metro Reservoir Anglers. He then went to Hemlock Gorge on the Prettyboy Reservoir in Hoffmansville, where he was briefed by an officer representing the Baltimore Environmental Police, the Gunpowder Riverkeeper and a member of the Prettyboy Watershed Alliance. The Attorney General ended the audit with a meeting with environmental leaders, including representatives from the League of Women Voters, North County Preservation, Trout Unlimited, Metro Reservoir Anglers and the Prettyboy Reservoir Alliance.

Throughout the day, the Attorney General heard from these individuals and organizations about a variety of environmental concerns in the watersheds, including the following:

“Rain Tax”. The perceived burden of the so-called “rain tax”33 was a topic of considerable discussion at the elected officials meeting. One attendee complained that the fees were not environmentally driven, but just a “tax on business.” Another worried that the fees will cripple people, not the government. In addition, there was a generalized concern that the area’s industrial base will be adversely affected. One elected official said that businesses want to expand in Taneytown but are fearful of the new tax and could easily relocate to nearby Pennsylvania to avoid it. Driving industry away would be inconsistent with smart growth strategies to concentrate development around existing municipalities.

33 In 2012, the Maryland General Assembly passed legislation requiring Baltimore City and nine counties (including Baltimore and Carroll counties) with the greatest population density to adopt and implement a local stormwater remediation fee, the so-called “rain tax”, and a watershed protection and restoration fund. The purpose of the fee is to fund programs and projects to meet stormwater pollutant load reductions required by federal and state law. See http://www.mde.maryland.gov/programs/marylander/pages/stormwaterfeefaq.aspx. 11

Wastewater Treatment Plants. The elected officials also discussed the costs associated with the requirements that they upgrade their local wastewater treatment plants to meet an ENR level of treatment. Although New Windsor and Taneytown have been able to get interest free state loans, it took them two years to obtain the money, which must still be repaid. Because of the small size of the plants, they are not eligible for Bay Restoration Fund assistance.34

Invasive Non-native Species. Non-native invasive animal and plant species pose significant risks to the natural habitat of the watersheds. Zebra mussels, which are native to Eastern Europe, readily attach to surfaces, including other forms of marine life. The mussels form a thick layer, which can inhibit movement and suffocate the organisms to which they adhere.35 In order to prevent the introduction of zebra mussels into the reservoirs, boaters must sign an affidavit attesting that they will not use their boats anywhere but the Liberty, Prettyboy and Loch Laven Reservoirs. Use of live bait is allowed only if purchased at a Maryland certified zebra mussel-free bait store.36

Another non-indigenous species, wavyleaf basketgrass, was first seen in the State Park in 1996. Native to southeast Asia, this grass was also found in spotty patches in Liberty Reservoir property. Within the next decade, the rapidly spreading plant species had covered many acres.37 The Maryland Department of Natural Resources has worked with public and private Hemlock Gorge on the Prettyboy Reservoir in partners, including Baltimore City and Baltimore County, Hoffmansville to prevent further spread of the plant.38

Pollution Sources in the Liberty Reservoir. According to the Baltimore Environmental Police, most pollution in the Liberty Reservoir comes from fertilizer from lawns and golf courses. Runoff from these nutrient rich applications has caused algae blooms in the reservoir.

34 The water quality of the Chesapeake Bay has declined as a result of excess nutrients, primarily nitrogen and phosphorus. Effluent from wastewater treatment plants is one of the major contributors of these nutrients. Accordingly, in 2004, the legislature established the Bay Restoration Fund, financed by wastewater treatment users, to upgrade Maryland’s wastewater treatment plants with enhanced nutrient removal (ENR) technology. The 67 major, publicly owned facilities received priority for the funding. See http://www.mde.maryland.gov/programs/water/bayrestorationfund/pages/index.aspx. 35 See http://dnr.maryland.gov/irc/zebra/zmussel1.html. 36 See http://www.dnr.state.md.us/fisheries/recreational/fwhotlibertyres.html. 37 See http://dnr.maryland.gov/wildlife/Plants_Wildlife/WLBG/wl_basketgrass_history.asp and http://dnr.maryland.gov/wildlife/plants_wildlife/wlbg/index.asp. 38 See http://dnr.maryland.gov/wildlife/Plants_Wildlife/WLBG/wl_basketgrass_management.asp. 12

Increased salinity from road salts is also a problem. The Prettyboy Reservoir has reached its capacity for sediment, which will eventually filter down to the Liberty.

Healthy Trout Waters. At the environmental leaders meeting, one attendee expressed concern about the lack of appreciation for keeping the water safe and healthy for fish, especially trout which need cold water. Healthy water for fish is beneficial for a healthy drinking water supply. He suggested a statewide focus on the inherent value of stream health, instead of considering just the major waterways, with systematic monitoring and assessment.

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CHAPTER TWO: THE WICOMICO RIVER

I. Background

The Wicomico River watershed covers 240 square miles across parts of Wicomico and Somerset counties in Maryland and Sussex County, Delaware.39 About 33 miles long, the Wicomico River drains an area of low marshlands and farming country in the middle Delmarva Peninsula. The river rises in northern Wicomico County along the Delaware state line. It flows generally southwest, through Salisbury and enters Monie Bay on the eastern edge of the Chesapeake Bay about 15 miles southwest of Salisbury. The lower 20 miles of the river form a tidal estuary.40

The Wicomico River is part of the Lower Eastern Shore basin, which includes the Nanticoke, Wicomico, Manokin, Big Annemessex and Pocomoke Rivers, as well as , , and .41 The Wicomico River watershed can be divided into four sub-watersheds: Wicomico Head, Lower Wicomico, Wicomico Creek and Monie Bay.42 Land use in the 108,074 acres

39 http://mddnr.chesapeakebay.net/eyesonthebay/documents/wicomico_newsletter.pdf (p. 1). 40 http://www.anglerweb.com/fishing_spots/wicomico-river. 41 http://dnr.maryland.gov/bay/pdfs/lesbasinsum8505final2007.pdf (p. 2). 42 http://mddnr.chesapeakebay.net/eyesonthebay/documents/wicomico_newsletter.pdf (p.1). 14

consists of forest and other herbaceous (60,792 acres or 54.6%), mixed agriculture (23,819 acres or 21.4%), urban (23,464 acres or 21.1%), and water (3,260 acres or 2.9%).43

The Wicomico’s gentle, free-flowing nature makes it a popular area for recreational canoeing, kayaking, fishing, and crabbing. The river is also used for larger vessels, having barge traffic and two automobile ferries located at Whitehaven and Upper Ferry.44 While a large portion of the watershed is agricultural, much of Wicomico’s agricultural land is being lost to development. Wicomico County leads the Eastern Shore in population growth as well as loss and fragmentation of agricultural land. Between 1973 and 2002, 11% of the county’s agricultural land and forests were lost to development. Of this loss, 17,100 acres were converted to residential use, representing roughly 75% of the total developed acreage.45

One of the watershed’s most notable environmental features is the Pemberton Historical Park located in western Salisbury. The park consists of 262 acres and contains 4.5 miles of nature trails. The park is home to Pemberton Hall, which was built in 1741 by Isaac and Anne Handy. The first home and plantation established in Wicomico County, Pemberton Hall is now open to the public and is used for environmental education, historical interpretations and special community events.46

The surface water use designation for the Wicomico River is “Use II: Shellfish Harvesting Waters”. The Wicomico River was originally listed in Maryland’s 1996 §303(d) list for water-quality limited segments as being impaired by bacteria, nutrients, and sediments. In 2002, portions of the Wicomico River were added to the 303(d) list for biological impairments. 47 In response to observed high nutrient levels over many years, all hydrological divisions (except Monie Bay) of the Wicomico River have been listed as impaired for nitrogen and phosphorus.48 In addition, Total Maximum Daily Loads for fecal coliform have been established for the river.49

In 2006, the Maryland Department of Natural Resources began a three-year water quality criteria assessment of the Wicomico River. Three continuous monitoring stations, located at Upper Ferry, Whitehaven, and Little Monie Creek, recorded automated water quality measurements every fifteen minutes, April through October. Water quality mapping was conducted monthly April through

43 See http://www.mde.state.md.us/programs/Water/TMDL/ApprovedFinalTMDLs/Documents/www.mde.state.md.us/assets/docum ent/tmdl/lower_wicomico/lwr_wicomico_main_fin.PDF (p. 1). 44 http://www.anglerweb.com/fishing_spots/wicomico-river. 45 http://mddnr.chesapeakebay.net/eyesonthebay/documents/wicomico_newsletter.pdf (p. 2). 46 http://www.pembertonpark.org. 47 See http://www.mde.state.md.us/programs/Water/TMDL/ApprovedFinalTMDLs/Documents/WicomicoBasin_Chaptico_FC_DR. pdf (p. 2). 48 http://mddnr.chesapeakebay.net/eyesonthebay/documents/wicomico_newsletter.pdf (p. 2). 49 See http://www.mde.state.md.us/programs/Water/TMDL/ApprovedFinalTMDLs/Documents/WicomicoBasin_Chaptico_FC_DR. pdf (p. 2-5). 15

October.50 There are a number of citizen based groups at work in this watershed, and initiatives to improve the quality of the river and its watershed have been ongoing.

In October of 2012, the National Fish and Wildlife Foundation announced a $75,000 grant to be given to the City of Salisbury, the Center for Watershed Protection, the Wicomico Environmental Trust, and the Wicomico Creekwatchers to fund a watershed characterization and baseline assessment of the Wicomico River watershed, field assessments in two priority subwatersheds in Salisbury, and public outreach to increase awareness of the need for pollution reduction. This grant will help the county develop a watershed improvement plan and initiate restoration and remedial actives to improve water quality in the Wicomico River.51

II. Active Enforcement and Pending Matters

Prior to conducting the audit, the Office of the Attorney General identified the following ongoing enforcement and pending matters within the Wicomico River watershed:

Delmar Wastewater Treatment Plant. In 2011, the Delmar Wastewater Treatment Plant, which serves the contiguous towns of Delmar, Delaware and Delmar, Maryland, was upgraded to include biological and enhanced nutrient removal systems.52 During the construction process, the plant was under a consent agreement with MDE as a result of some issues over acceptable phosphorus limits. Since the upgrade, however, MDE again documented a number of weekly and monthly phosphorus limit exceedances, some of which triggered penalties. At the time of the audit, the matter was under review by the OAG.

Pohanka Honda. On October 6, 2011, MDE received a report of a bright green liquid being discharged from a storm water outfall for the North Salisbury Boulevard storm drain system. The following day, MDE determined that the origin was the Pohanka Honda property in Salisbury, Maryland. A representative of Pohanka Honda admitted that pools of green liquid had been on the site the day prior due to a delivery of cleaning solution. MDE instructed the dealership to clean up the affected areas and to submit receipts and documentation showing where the material was discarded. On October 10, MDE received a letter stating that the cleanup process was complete. However, on October 21, MDE representatives observed the continued discharge of wastewater from the car wash area that drained into the public storm drain system as a result of car washing that was occurring outside of the car wash bay. On October 25, the company documented corrective actions taken and measures implemented to prevent future overflows of wastewater. To resolve this matter, the property owner must continue to implement pollution control measures to prevent future discharges and pay a civil penalty. The matter was pending at the time of the audit.

50 See http://mddnr.chesapeakebay.net/sim/dataflow_data.cfm#wicomico. 51 http://wicomicoenvironment.org/wicomico-river-watershed-assessment. 52 See http://news.delaware.gov/2011/12/20/delmars-new-state-of-the-art-wastewater-treatment-facility-unveiled/. 16

Contamination of Residential Wells. At the time of the audit, the MDE, Wicomico County Health Department (WCHD), the Maryland Department of Health and Mental Hygiene (DHMH) and the Environmental Protection Agency (EPA) were investigating the source of contamination of residential wells in and around Morris Road in Salisbury. The contamination of concern was trichloroethylene (TCE), a clear liquid with a sweet odor. TCE is used as an industrial solvent to remove grease from metals and in the production of other chemicals. It is also used in paints, varnishes, lacquers, paint removers, adhesives, and other commercial and consumer products. In the early to mid-20th century, TCE was commonly used in food production and as an anesthetic; it was also a common ingredient in septic tank cleaners. Such usage was discontinued in the 1970s because of it harmful effects. 53 The Morris Road contamination may have been the result of authorized septic disposal 30 to 40 years ago.

In the spring of 2013, approximately 226 wells in the Morris Mill neighborhood were tested in an effort to identify the source of contamination and size of the plume. At the request of MDE, EPA installed 38 carbon treatment units to the most affected and at-risk residences. At the time of the audit, bottled water was being supplied by MDE to those residences that did not meet the criteria for a carbon unit. MDE is continuing to sample approximately 150 residential wells on a quarterly basis. EPA was to maintain the carbon treatment units for one year, after which MDE was to take over that maintenance.

Wicomico County and the State are also evaluating a long-term solution to address this situation, including extension of a municipal waterline, a community well, or the replacement of existing wells. MDE and the county are trying to secure funding to connect the area to the Fruitland water line, which could occur within two years of funding.

Salisbury Wastewater Treatment Plant. The Salisbury Wastewater Treatment Plant (WWTP) has had a long history of trying to achieve compliance with its permit limits. Pursuant to a 2005 consent order between MDE and the city resolving permit violations, the city committed to upgrade the WWTP to achieve enhanced nutrient removal (ENR) and to perform certain other corrective action. At a cost of over $60 million, Salisbury implemented the requirements of the 2005 order, including the upgrade of the plant to ENR, but the plant was unable to achieve ENR levels of treatment.

MDE filed another complaint in 2010 for violations of the 2005 consent order and permit limits, and that action was resolved by a new consent order that provided for optimization and upgrade of the WWTP to achieve ENR and compliance with permit limits no later than July 1, 2013. When it entered the 2010 order, the city believed it could achieve ENR at the WWTP by tweaking the existing system. Shortly thereafter, it became clear that the problems with the newly constructed WWTP were substantial and an entirely new plant (at a cost of $58 million) would have to be constructed for the city to achieve ENR levels of treatment and comply with its permit.

53 The EPA has characterized TCE as a human carcinogen. Long-term exposure could pose risks to the nervous system, kidneys, liver, immune system, and male reproductive system as well as it may pose a risk to unborn babies including birth defects. http://www.epa.gov/ttn/atw/hlthef/tri-ethy.html. 17

On September 14, 2010, MDE issued a new permit for the WWTP that established annual loading limits for total phosphorous and total nitrogen consistent with the new Chesapeake Bay Total Maximum Daily Load (TMDL) allowance that the WWTP was not going to be able to meet until it achieved ENR levels of treatment. The city petitioned for judicial review of the permit, challenging the basis for the annual limits (effectively challenging the entire Bay TMDL) and the effective date of the annual loading limits. MDE and the city agreed to dismiss the judicial review action and to remand the permit back to MDE.

The parties then began intensive negotiations centered largely on the timing and financing of the reconstruction of the WWTP. Ultimately, the 2010 consent order was amended, and Salisbury agreed to: complete the upgrade of the plant to achieve ENR treatment levels and achieve compliance with its permit, by December 31, 2017; pay stipulated penalties due under the 2010 order in the amount of $48,650 and pay additional stipulated penalties for certain future violations that occur during the effective period of the amended consent; and reinstatement of all provisions of the 2010 permit, including immediately effective total nitrogen and total phosphorous annual loadings. In exchange, MDE agreed to favorable grant and loan terms to pay for the upgrade. As the time of the audit, the city was on track with upgrades to meet ENR treatment levels by 2017.

Market Street Stormwater Restoration Project. Part of the Wicomico River Watershed Management Planning that was completed in February 2013, the Market Street Stormwater Restoration Project is a collaborative effort among the Salisbury Mayor, Salisbury Public Works staff, Maryland Department of Natural Resources staff and the Center for Watershed Protection. Market Street in downtown Salisbury runs parallel to the South Prong (Beaver Creek) portion of the Wicomico River; the area has a large number of buildings and parking lots. This project will address inadequate stormwater management in a one-acre area that consists primarily of impervious parking lots. Stormwater improvements will be achieved by adding bio-retention cells and other low impact development techniques to treat water before entering the river, thereby reducing nutrient and sediment loads. These improvements will help ensure that Salisbury is working towards its TMDL requirements by removing suspended solids, nitrogen, and phosphorus prior to entering the Wicomico River.

III. The Wicomico River Audit, July 15, 2013: What the Attorney General Learned

The Attorney General’s audit of the Wicomico River took place on July 15, 2013. He was accompanied by seven members of his staff, including the special assistant for the environment, principal counsel of the Maryland Department of the Environment and principal counsel of the Maryland Department of Natural Resources.

The Attorney General began the day in Salisbury meeting with elected officials, including the county executive of Wicomico County, a member of the Wicomico County Council and other Wicomico County officials, the mayor of Salisbury, and members of the Salisbury City Counsel. Following that meeting, he boarded a Salisbury fire boat for a trip on the Wicomico River during which he was briefed by a Salisbury University professor and members of the Wicomico Environmental Trust and Wicomico Creekwatchers. He then went to the Ward Museum in Salisbury, where he was briefed by a number of 18

environmental leaders, including representatives from the University of Maryland Center for Environmental Science, Salisbury University, the Lower Shore Land Trust, and the Delmarva Water Transport Committee.

Throughout the day, these participants shared a number of environmental issues and concerns, including:

Funding for Environmental Upgrades. As it was during the Liberty and Prettyboy Reservoirs audit, the so-called “rain tax” 54 was mentioned at the elected officials meeting. One participant remarked that the counties and municipalities should “lead by example,” that is, they should not be exempting themselves from the tax and imposing it only on businesses and residents. Currently, federal facilities must pay the fees, and there is a move to apply them to state facilities as well. That led to a discussion about how to pay for all of the projects needed protect the Bay from sprawl, septics, farms and other sources of pollutants. One elected official acknowledged the benefits of environmental improvements, such as forest buffers, but lamented the lack of local resources to pay for “unfunded mandates”. For example, Salisbury is expecting to need another $60 million to make necessary upgrades to its wastewater Elected officials meeting in Salisbury treatment plant.55

Septics. One elected official predicted that septics would be a major focus over the next 10 years. There is a need to remove failing septics in the watershed and the decision must be made whether to replace them or connect with city water and sewer. Many people object to being connected to city facilities because they have to pay city taxes, which are higher than county taxes. Some communities also object to annexation because it increases the possibility of development. In the official’s view, people who do not want to be connected to water and sewer should not have to, but if they are compelled, the government needs to establish those connections in a timely, predictable way. Presently, no one knows whether those connections will be made when five new homes or built, or when 10 or more are built, or whether they will be made at all.

TMDLs. Some of the elected officials do not agree with the approach that the EPA and MDE have taken with the Total Maximum Daily Loads.56 In their view, it makes no sense for the lower Bay

54 See n. 33, supra. 55 See pp. 17-18, supra. 56 See n. 18, supra. 19

region to clean its watershed when it is still being heavily polluted in the headwaters. Wicomico, it was argued, can have no impact on what happens to the Bay at points north. It was suggested that TMDLs should be assigned based on pollution contribution of each watershed and the proper sequence of clean up should be top (headwaters) to bottom (lower Bay).

Pollution Sources. Cigarette butts are one of the most readily identifiable sources of pollution in the watershed. Discarded everywhere, they collect in piles and ultimately are washed into the waterways. Although there is a local $100 fine for littering, there is nothing specific to cigarette butts. One elected official said there should be major fines for littering with cigarette butts. Apparently, many of the older homes have wrap-around yards; when rain runs off the roof into the yard, there is a natural filtering process that prevents stormwater runoff into the street. A bigger problem, however, is pollution from automobiles depositing substances on the streets that end up in storm drains and eventually the water.

State Assistance. One elected official said that MDE should not be fining local government for pollution violations; instead, the State should be finding revenue to address sources of pollution. Another participant expressed a desire to have more guidance from the State on establishing best management practices; he suggested that the State might provide sample plans that the local municipalities and cities could use. It would be beneficial if the State could incentivize putting in more tree cover for pollution abatement.

Smart Growth. While acknowledging the benefits of smart growth strategies that concentrate development near existing urban areas, an environmental leader cautioned against plans to displace forested areas. As he said, developing Central Park in Manhattan might be consistent with smart growth, but it would not be a good idea. Smart growth must be done in a way that does not result in loss of trees because nothing substitutes for mature forest.

Shorelines. During the boat trip, the Attorney General observed non-compliant shoreline homes which had fences extending into the water instead of green shorelines with vegetation. Sheer bulkheads are also not good for preserving shorelines. Living shorelines would be beneficial in light of rising sea levels. In addition, awareness of rising sea levels is essential to ensure that homes are not built in areas that will flood.

Oysters and Tracking Pollution Sources. At the Ward Museum, the Aboard Salisbury fire boat on the Wicomico River Attorney General learned from a scientist about how oysters can be used to identify and track sources of pollution. Poultry is a big source of pollution in the watershed. Delmarva has almost 1.2 million people, but more than 300 million broiler chickens in Maryland alone. In order to generate as much waste as the poultry generates, the human population would need to increase by about 900,000, 20

or 76% of the population. Human waste has different oyster isotopes than poultry waste. When those oyster isotopes are studied, it helps identify where the waste originated. The scientist suggested that such information could be used to target nutrient rich reduction efforts, provide accountability by verification and ultimately help meet restoration milestones.

River Traffic and Water Quality. An environmental leader suggested a study of the effect of river traffic on water quality in the river. Salisbury is the second busiest port in the State. The river fills in on a continuous basis and is dredged periodically to allow barges to navigate. Whenever boats come through, the river’s bottom is stirred up. A study would help determine if more frequent and deeper dredging is needed or if traffic should be controlled to a great extent.

State Enforcement Staff. The dearth of inspectors at MDE and MDA was lamented by one environmental leader, who observed that “the laws are only as strong as their enforcement.” He said that the staff at MDE is about half what it was 20 years ago. And at MDA, there are only two inspectors to look at all 13,000 farm plans.57

Conowingo Dam. The Conowingo Dam is located in northeast Maryland on the .58 The dam collects massive quantities of silt, sediment and debris that flow down the river. After a heavy rainfall and when the floodgates are opened, some of this debris and sediment flows over the dam and into the Chesapeake Bay and its tributaries, often with significant adverse environmental impacts. The Conowingo is part of a hydroelectric power plant owned and operated by Exelon, which has a license from the Federal Energy Regulatory Commission (FERC) that is due to expire on September 1, 2014. Exelon has filed an application with FERC to relicense the plant.59

As in virtually every other audit the Attorney General has conducted, participants expressed serious concerns about Conowingo Dam and the sediment which is near capacity. There was discussion about the opportunity to require Exelon to assume responsibility for the sediment removal as part of the licensing process.

57 Maryland’s Water Quality Improvement Act of 1998 (“WQIA”), MD. CODE ANN., AGRIC. § 8-801 et seq. (2010), requires all Maryland farmers grossing $2,500 or more annually or raising 8,000 pounds or more of live animal weight to run their operations using a nutrient management plan that addresses both nitrogen and phosphorus inputs. See http://mda.maryland.gov/resource_conservation/Pages/farmer_information.aspx. These plans are submitted to the Maryland Department of Agriculture, which conducts inspections of the plans for potential enforcement action. 58 The Attorney General visited the Conowingo Dam in 2009 as part of his audit of the Susquehanna River. See http://www.oag.state.md.us/Reports/2009EnvironmentalAudit.pdf (pp. 36-38). 59 See http://www.exeloncorp.com/powerplants/conowingo/relicensing/overview.aspx. 21

CHAPTER THREE: ANTIETAM CREEK

I. Background

The Antietam Creek watershed, which is part of the Upper basin, covers 290 square miles, 185 of which are located in Washington County, Maryland. A free flowing stream, Antietam Creek originates in Pennsylvania and empties into the Potomac River in Maryland. It is approximately 54 miles in length, with 37 of the miles in Maryland.60 Tributaries of Antietam Creek include West Branch Antietam Creek, East Branch Antietam Creek, Little Antietam Creek (north and south), Marsh Run, Hamilton Run, Landis Spring Branch, Beaver Creek and Sharmans Branch.61

Centrally located along the western edge of the 186,166 acre watershed, the city of Hagerstown is the main metropolitan area.62 Land use in the watershed is almost half agricultural (45%), with forest (30%) and urban (25%) comprising the remaining portions. The agricultural land use is mostly crop production, but also includes some pasture.63

60 See http://www.mde.state.md.us/programs/Water/TMDL/Documents/BSID_Reports/Antietam_Creek_BSID_Report_final_05241 2.pdf (p. 2). 61 See http://www.mde.maryland.gov/programs/water/tmdl/approvedfinaltmdls/pages/programs/waterprograms/tmdl/approvedfinalt mdl/tmdl_final_antietam_bacteria.aspx. 62 Id. 63 See 22

Antietam Creek is best known for the Civil War battle that took place on September 17, 1862, along its banks near the town of Sharpsburg, Maryland. The marked the first invasion of the North by Confederate General Robert E. Lee. During this one-day battle, the bloodiest single day of battle in American history, more than 23,000 soldiers were killed or wounded.64 The battle ended the first invasion into the North of the Confederate Army of Northern Virginia and led to President Lincoln's issuance of the preliminary Emancipation Proclamation.65

Today, Antietam Creek is a peaceful setting that attracts anglers, canoeists and history enthusiasts. The lower 14 miles of the creek offer a variety of fishing opportunities and aesthetic natural surroundings. Devil's Backbone County Park and the Antietam National Battlefield Park are two primary locations that offer access to lower Antietam Creek. Devil's Backbone is named after a prominent ridge in the creek. The Antietam National Battlefield Park provides picnic areas with grills, a playground, pavilions and parking. The Fisheries Service manages most of Antietam Creek as a put- and-grow fishery that stocks fingerling, rainbow and brown trout, along with smallmouth bass and carp.66

The designated use of Antietam Creek and its tributaries is Use IV-P (Recreational Trout Waters and Public Water Supply) except for Beaver Creek, Marsh Run, and Little Antietam Creek, which are classified as Use III-P (Nontidal Cold Water and Public Water Supply). The Maryland Department of the Environment identified the waters of the Antietam Creek watershed on the State’s 303(d) List67 as impaired by sediments (1996), nutrients (1996, 1998 in the Greenbrier Lake impoundment), dissolved oxygen (1996), bacteria (2002), and impacts to biological communities (2002). MDE has established a Total Maximum Daily Load (TMDL) to ensure that there will be no sediment impacts affecting aquatic health and the water use designation. TMDLs for carbonaceous biochemical oxygen demand and nitrogenous biochemical oxygen demand to address the 1996 dissolved oxygen listing were approved by the U.S. Environmental Protection Agency (EPA) in 2002. A TMDL was submitted to the EPA in 2008 to address the 2002 bacteria listing. The listings for nutrients and impacts to biological communities will be addressed separately at a future date.68

Point source discharges are one source of nutrient and suspended solids in surface waters; there are ten municipal and nine industrial discharges in the Antietam Creek watershed.69 Many areas in

http://www.mde.state.md.us/programs/Water/TMDL/Documents/BSID_Reports/Antietam_Creek_BSID_Report_final_05241 2.pdf (p. 4). 64 John Mullican, Antietam Creek Rich in History, Rich in Resources, available at http://dnr.maryland.gov/naturalresource/fall2003/antietam_creek.html (last visited June 6, 2013). 65 http://www.nps.gov/ancm/index.htm. 66 http://dnr.maryland.gov/naturalresource/fall2003/antietam_creek.html. 67 See n. 17, supra. 68 See http://www.mde.maryland.gov/programs/water/tmdl/approvedfinaltmdls/pages/programs/waterprograms/tmdl/approvedfinalt mdl/tmdl_final_antietam_creek_sediment.aspx. 69 See http://www.mde.maryland.gov/programs/water/tmdl/approvedfinaltmdls/pages/programs/waterprograms/tmdl/approvedfinalt mdl/tmdl_final_antietam_bacteria.aspx. 23

Hagerstown were built before modern stormwater runoff controls were required by the State. The prevalence of agricultural land use in the Antietam Creek watershed contributes to non-point sources of pollution when rainfall carries sediment, fertilizers, manure, and pesticides into streams.

There are a number of citizen groups in the watershed that work in conjunction with state and local officials to clean up the Antietam watershed. One such group, the Antietam Creek Watershed Alliance (ACWA), is an active advocate for the watershed. Recently, the ACWA has worked with Trout Unlimited to improve the trout habitat in Antietam Creek, which includes their program aimed at increasing the prevalence of sustainable gardens in Washington County communities. ACWA is also active in educating the community about stormwater remediation and watershed management.70

II. Active Enforcement Efforts and Pending Matters

At the time of the Attorney General’s Antietam Creek audit, there were a number of ongoing significant matters in the watershed, including:

Hagerstown Municipal Electric Light Plant. The Hagerstown Municipal Electric Light Plant (MELP) is an abandoned former electric power station located on Antietam Creek in southeastern Hagerstown. The coal-fired power plant was built in the 1920s, expanded in the 1960s, and ceased operations in the early 1970s. It has been unused for many years.

The current owner of the property, Partners Marketing LLP, a firm based in Staunton, Virginia, has owned the site since the 1990s. The company wants to salvage metal from the large generating machinery at the site and then raze the building to facilitate sale or redevelopment of the property. The developers have sought the necessary permits to demolish the building and fill the basement with rock and clean fill to grade. The main MELP building is divided into the old side that was built in the 1920s and the new side that was built in the 1960s. The new side basement is flooded with approximately 6 to 8 feet of water. To remove the equipment in the basement, approximately 600,000 gallons of water will need to be pumped out, treated and discharged. The developers have submitted an application to MDE’s Water Management Administration for a discharge to surface water permit. Additionally, approximately 30 to 60 tons of sediment will need to be removed from the basement following the water discharge.

Testing of the water and sludge revealed elevated levels above the MDE cleanup standards for metals, PCBs, and TPH. Concentrations of PCBs over 50 parts per million are considered to be hazardous waste in Maryland. Although the source of the PCBs is not known, the developer’s consultant believes the building was used to store transformers for a period of time after the plant shut down. In addition, there are likely to be many other materials at the site, such as coal combustion byproducts and asbestos as well as the structural elements of the building itself, that are regulated solid wastes in Maryland.

70 See generally http://www.acwamaryland.org/about-us/. 24

MDE’s Solid Waste Program advised the developer’s consultant to contact the Toxic Substances Control Act Program at EPA to set up a joint meeting before developing any remedial plan to address the PCB-contaminated media within the facility. The city of Hagerstown has been debating possible acquisition of the site for a downtown stadium or stream access, but concerns about the liability for the cleanup appear to have delayed any action.

Mansoor and Janet Shaool Property. This property is located at 11314 Bovey Lane, Smithburg, in Washington County. Inspection of the site has revealed both land management and water management violations. The property has disturbed areas of about an acre where pits were dug. There were no sediment and erosion controls in place on the property, nor was there was there a sediment and erosion plan approved by MDE when the work occurred on the site. In addition to the sediment and erosion violations, unpermitted open dumping of waste and debris, including concrete block, brick, dirt, scattered tires and bags of trash, has also occurred on the property. The property has two means of ingress and egress, and the inspector believes that this area was subject to dumping by non-owners and trespassers to the property. These waste items remained on the property as of January 8, 2014. At the time of the Attorney General’s audit, the matter was under review by the OAG for potential enforcement action. Advance Auto Parts Store. This property is located at 325 E. Washington Street in Hagerstown. Two adjacent parcels, one of which is improved by an Advanced Auto Parts store and the other of which is unimproved, share a stormwater management pond that drains into the City of Hagerstown's stormwater system and into a tributary of Antietam Creek. The Department of the Environment has responded to past complaints of foul odors emanating from the pond. MDE sampled the stagnant water and found no contaminants, but was unable to determine the source or cause of the odors or stagnant water. At the Department's request, the Advanced Auto Parts tenant conducted a limited environmental sampling, which ruled out the store as a cause of the contamination, but was otherwise inconclusive as to the source or cause. After involvement from the Office of the Attorney General, the owner of the improved parcel agreed to conduct a Phase II Environmental Site Assessment (ESA). The results of the ESA were also inconclusive as to the source of the contamination, but it was recommended that certain minimal steps be taken for regrading the stormwater management pond to prevent stagnating water and buildup of organic material that may contribute to odors. In 2013, the OAG asked the property owner to perform the recommendations outlined in the ESA. The owner agreed to do so, but has asked for contribution toward the costs from the owner of the unimproved parcel. That owner had not responded at the time of the audit.

Boonsboro Wastewater Treatment Plant. Between 2007 and December 2010, the Boonsboro Wastewater Treatment Plant repeatedly violated its discharge permit limits, including ammonia-nitrogen and total suspended solids. The Town of Boonsboro completed the construction of a sequential batch reactor (SBR) plant to replace its old lagoon plant in December 2009 but neglected to request a consent order with interim performance standards for parameters affected by the construction and start-up of the new plant. The total nitrogen permit limit of 6,100 pounds per year went into effect on January 1, 2011. Although there were operational problems during the start-up of the new SBR plant in 2010, the reported total nitrogen annual maximum cumulative loading for 2012 was in compliance with the permit limit. An enforcement action with a penalty to resolve past violations when the plant did not meet permit limit was referred to the Office of the Attorney General for enforcement. During

25

settlement discussions, the town asked that current compliance and limited funds to pay any assessed penalty be considered in mitigation. The matter was under review at the time of the audit.

Hamzah Slaughter House. MDE first inspected the Hamzah Slaughter House in 2011 after receiving a citizen complaint. MDE found blood from animal remains and wash water being discharged into a tributary of . The facility did not have a federal or state discharge permit. The facility subsequently submitted a notice of intent to operate under the general permit for storm water discharges associated with industrial activity and prepared a storm water pollution prevention plan (SWPPP). Following approval of the SWPPP, MDE entered into settlement negotiations and had reached an agreement in principle. However, further inspections in December of 2012 showed that the facility was not complying with the SWPPP it had submitted and again had allowed blood and animal manure to be exposed to storm water in a position likely to pollute. MDE rescinded its settlement offer. During a follow up inspection in April 2013, MDE found that the facility had made significant improvements, including construction of a building to store animal skins with a drain to a collection tank that is pumped and hauled daily to a permitted wastewater treatment plant. However, corrections were still needed to prevent discharges of manure, stabilize portions of the site, and revise the SWPPP to reflect current practices. At the time of the audit, MDE had provided a new proposed consent order, but had not yet reached settlement.

Public Water Access. Department of Natural Resources staff has worked with Washington County to identify water access sites in order to develop a water trail for Antietam Creek. Currently, public water access to Antietam Creek is limited due to a lack of state or county owned properties along the waterway. The upper reaches of the creek were surveyed by DNR and county staff in summer 2013. A survey of the lower portions of the creek was to be resumed in spring 2014. It is apparent that developing the proposed water trail will require access agreements with private property owners.

Maryland Correctional Institution Wastewater Plant. The largest facility operated by Maryland Environmental Services in Washington County is the Maryland Correctional Institution Wastewater Treatment Plant that serves the various correctional and military facilities located south of Hagerstown along the Sharpsburg Pike, . Treated wastewater is discharged to Little Antietam Creek. At the time of the audit, design was underway to upgrade the plant to ENR treatment standards. One of the critical elements of the upgrade will be replacing the existing chlorine disinfection process with a UV system. Currently the plant stores chlorine gas in multiple one-ton cylinders, along with sulfur dioxide gas to neutralize the chlorine. EPA has identified the chlorine cylinders as a public safety and security risk.

The last permit violations, a chlorine residual violation and two flow meter failures, were in 2009. This facility also had two overflows in recent years. The first, in 2011, was an overflow estimated at 200 gallons caused by a plugged inlet line. The second overflow, about 1,000 gallons, was in August 2013 at the headworks building. This overflow was caused by the flushing of a fire hydrant main in the basement of the prison. The excess flow and volumes of trash to the wastewater treatment facility overwhelmed the equipment in the headworks building, resulting in the overflow onto the ground. In both instances, all proper reporting and clean up procedures were followed.

26

St. Lawrence Cement Wastewater Treatment Plant. The wastewater treatment facility at the Holcim Cement plant (formerly the St. Lawrence Cement Plant) at 1260 Security Road in Hagerstown is not currently operational. It was closed in 2006 because it needed substantial upgrades to meet permit limits. Approximately 1,200 gallons per day of non-industrial wastewater is hauled to the Maryland Correctional Institution Wastewater Treatment Plant for disposal. The owners have submitted an application for a new discharge permit, and a draft permit was circulated for review in 2012. If issued, the permit will allow for discharge of treated wastewater to Little Antietam Creek. However, due to the estimated cost of the improvements, the owners are also examining alternative disposal options.

III. The Antietam Creek Audit, January 27, 2014: What the Attorney General Learned

The Attorney General conducted an audit of Antietam Creek on January 27, 2014. He was accompanied by 10 members of his staff, including the special assistant for the environment, principal and deputy counsel for the Maryland Department of the Environment, principal counsel for the Maryland Department of Natural Resources, principal counsel for the Maryland Environmental Services and principal counsel for the Maryland Department of Planning.

The day began in Hagerstown, where the Attorney General met with local elected officials, including the Washington County circuit court clerk, a Environmental leaders meeting in Hagerstown Washington County commissioner, the Washington County administrator and a Hagerstown councilmember. In the afternoon, the Attorney General was briefed by members of the Antietam Creek Watershed Alliance and the Washington County Soil Conservation District. He ended the day meeting with environmental leaders, including the Potomac Riverkeeper, the Antietam Creek Watershed Alliance and the Washington County Soil Conservation District.

During the audit, the Attorney General heard about a number of environmental issues and concerns, including the following:

Municipal Electric Power Plant. Demolition of the old Hagerstown Municipal Electric Power Plant is the city’s number one priority. The site, which is fenced off, is a dangerous eyesore. The city wants to purchase the property and has been negotiating with the owner. Unlike the owner, who believes there is value in scrap material on the site, the city believes it has negative value, but has offered a six-figure purchase price. The city has also initiated eminent domain proceedings. There was discussion at the meeting with elected officials about the possibility of the State assisting with the eminent domain process.

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Pollution Sources in Antietam Creek. Although the water is fairly clean, there are several sources of pollution in Antietam Creek:

■ Trash. The biggest problem for Antietam Creek is trash, especially scrap tires from illegal dumping. Some of these tires are very old.

■ Sediment and Stormwater. Sediment and stormwater pollution are also problems for Antietam Creek, and the elected officials expressed concern that development and increased impervious surfaces could aggravate stormwater pollution issues. Washington County has arranged to spray-paint storm drain inlets to raise public awareness about stormwater pollution issues.

■ Dairy Operations. Dairy operations are concentrated in the upper half of Washington County. Often there are no buffer zones or fencing, and voluntary compliance does not work. Cows frequently wade into small tributaries and cause direct deposits of pollution. There was some discussion with the environmental leaders about the Mennonite community, which has been reluctant to put in fencing and buffer zones. Although there are cost-share programs to reduce the financial burden on farmers, Mennonites do not participate in such programs. New regulations Livestock in Antietam Creek (photo courtesy of ACWA) that mandate these measures should help if they are appropriately enforced; however, there is concern about the small number of inspectors at the Maryland Department of Agriculture to oversee compliance.

■ Failing Septic Systems. Failing septic systems are a significant source of bacteria. Washington County and the Soil Conservation District have been working together to put best available technology systems in place. One environmental leader expressed his doubt that the TMDL for fecal coliform will ever be met.

Bank Erosion. Bank erosion is an issue for Antietam Creek, where stream beds and banks are eroding rapidly. The environmental leaders discussed the need for natural channel restoration, that is, restoring stream banks with rock structures, plants, trees, shrubs and vegetated buffers. The Washington County Soil Conservation District has identified 15 priority stream restoration projects and is actively seeking funding to implement them.

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Agricultural Certainty Program. Administered by the Maryland Department of Agriculture (MDA), the Maryland Agricultural Certainty Program provides a mechanism to certify farm operations that meet an advanced level to best management practices implementation, addressing all soil conservation and water quality issues on the farm and achieving the farm’s proportionate share of the agricultural TMDL nutrient and sediment load reduction. Once certified under the program, a farm is excused for a 10 year period from meeting new state or local requirements imposed after the certification date when they relate to the reduction of nutrients and sediment. At the end of the 10 year certainty period, the certified operation is required to be in compliance with any new requirements that may have been enacted or adopted in the interim.71

The Washington County Soil Conservation District interviewed 20 farmers about the program. Although they expressed interest in the concept, “the devil is in the details.” Farmers generally believed the grace period would help. The changes required to comply with environmental regulations require capital outlay, and having more time to implement all changes is very attractive to the farmers. However, ultimate interest and participation in the program cannot be determined until MDA issues its regulations.

MDE Response and Accountability. MDE needs more inspectors to have a greater field presence. There should be an inspection every two weeks on bigger urban sites. More inspectors, more inspections and larger fines were recommended. Companies often consider it cheaper to pay a few small penalties than to install required controls. One attendee also complained that when reporting pollution to MDE, it is difficult to get a satisfactory resolution. There is no follow up with the caller. Greater accountability and following up with results of pollution complaints would increase confidence in State government.

West Virginia Wastewater Treatment Plants. Unlike Maryland, where wastewater treatment plants sample weekly, West Virginia plants only sample monthly. These plants discharge directly into the Potomac River and these infrequent samplings can lead to delayed detection of discharge pollutants. The Potomac Riverkeeper challenged this practice and received a favorable opinion from the West Virginia Environmental Quality Board. That opinion has been appealed, and the appellate process was ongoing at the time of the audit.

Central Chemical Facility. Central Chemical in Hagerstown used to make fertilizer. According to an environmental leader, hazardous materials were dumped in the water when the facility closed. The owner ultimately reached a settlement with the Environmental Protection Agency,72 which fenced the property and has been cleaning it up.

71 The Agricultural Certainty Program was created by the General Assembly in the 2013 legislative session. See http://mgaleg.maryland.gov/webmga/frmMain.aspx?id=sb1029&stab=01&pid=billpage&tab=subject3&ys=2013rs, and http://mda.maryland.gov/about_mda/Pages/Ag-Certainty-Oversight-Committee.aspx. 72 See http://yosemite.epa.gov/opa/admpress.nsf/d0cf6618525a9efb85257359003fb69d/e6f7bb1b571e2fbc852577890071cebb!Ope nDocument and http://www2.epa.gov/enforcement/case-summary-epa-funded-sites-and-communities-chemtura-bankruptcy- settlements. 29

CHAPTER FOUR: UPDATES AND FOLLOW-UP

The Attorney General is pleased to provide the following updates and actions taken since the 2013 audits began on May 29, 2013:73

I. Liberty and Prettyboy Reservoirs

MDE v. Carroll County Bureau of Resource Management and Kibler Construction Co., Inc. On July 8, 2013, MDE, represented by the Office of the Attorney General, entered into a consent order with the Carroll County Bureau of Resource Management and Kibler Construction. The order required restoration of the impacted non-tidal wetlands and wetland buffer, as well as a civil penalty. Subsequent MDE inspections have confirmed completion of the restoration.

R.F. Associates Limited Partnership. In March 2014, the owner agreed to pay a civil penalty and the matter was settled.

Recycled Green Industries, Inc. Pursuant to the consent order, Recycled Green Industries submitted a scope of work for a nature and extent of contamination study and an operations and maintenance plan. As of April 2014, these documents were under review by MDE.

Congoleum Corporation. Congoleum Corporation paid penalties to resolve the matter and the case was closed.

II. Wicomico River

Delmar Wastewater Treatment Plant. In October 2013, the Town of Delmar entered into a consent order and agreed to pay penalties. The matter was then closed.

Pohanka Honda. This case was settled in March 2014 after the owner agreed to pay a civil penalty.

Conowingo Dam. In January 2014, Exelon submitted to MDE its application for a water quality certification under Section 401 of the Clean Water Act.74 The State must act within one year or it waives certification. The Federal Energy Regulatory Commission cannot issue a new license prior to issuance of the certification, and must include conditions of the certification in its license. As of April 2014, MDE and DNR were in the process of evaluating the application and were focused on sediment,

73 As is apparent, a number of issues that arose during the 2013 audits were not limited to a single watershed but had more general application. These matters are discussed infra in Section IV, entitled “Miscellaneous”. 74 33 U.S.C. §1251 et seq. 30

nutrient and fish passage issues. There were important sediment study results pending from the U.S. Army Corps of Engineers, with drafts expected in May or June 2014.

III. Antietam Creek

Boonsboro Wastewater Treatment Plant. As of April 2014, settlement discussions to resolve the matter were ongoing.

Hamzah Slaughter House. The owner of the facility submitted a new notice of intent to comply with the general permit and stormwater pollution prevention plan. The matter was pending as of April 2014.

IV. Miscellaneous

Chesapeake Bay Foundation, et al v. DCW Dutchship Island, LLC, et al. This protracted litigation arose out of a 2007 decision of the Anne Arundel County Board of Appeals granting a Critical Area variance to Darryl Wagner and his business entity for a sprawling residence and boat ramp that Wagner constructed without permits on Little Dobbins Island in the .75 The Maryland Court of Appeals heard arguments in the case on April 4, 2014. The Office of the Attorney General, on behalf of the Chair of the Critical Area Commission for the Chesapeake and Atlantic Coastal Bays, argued to the Court of Appeals that Wagner did not prove in the proceedings below that the scale, scope and size of the residence that he constructed on the island was the "minimum necessary" to provide reasonable and significant residential use of the property. A decision from the Court is expected later this year.

Toxic Substances Control Act. The Toxic Substances Control Act (TSCA)76 was enacted in 1976 to give the Environmental Protection Agency authority to address the risks posed by production and use of toxic chemicals. Recently, Congress has been considering legislation that would amend the TSCA. In its current form, the TSCA recognizes that public interests are better served when states work with federal partners to enhance federal authority, and when states are allowed to identify emerging risks to health and the environment and drive innovations that reduce or eliminate those risks. The draft legislation, however, would severely diminish the states’ ability to act. On July 31, 2013, the Attorney General, joined by eight other state attorneys general, wrote a letter recognizing the need for reform to make the statute more protective, but expressing grave concerns about language that would greatly expand the TSCA’s preemption.

Currently, a TSCA Discussion Draft circulating in Congress contained even more sweeping preemption proposals that would eliminate the states’ role in toxic chemical regulation and therefore

75 See Daniel deVise, No Man Is an Island¸ Wash.Post, February 25, 2006, available at http://www.washingtonpost.com/wp- dyn/content/article/2006/02/24/AR2006022401776.html. 76 15 U.S.C. §§2601 et seq. 31

make the TSCA less protective, not more. On April 17, 2014, the Attorney General and 12 other state attorneys general again wrote to Congress to reiterate the adverse consequences of such preemption to public health and the environment.77

Out-of-State Pollution. The Attorney General frequently heard concerns about pollution originating outside of Maryland that ultimately reaches the Chesapeake Bay and its watershed. The Office of the Attorney General has been involved in significant litigation and other measures related to this issue:

■ American Electric Power. In October 2007, the Attorney General, joined by seven other states, reached a $15 million settlement with Ohio-based American Electric Power (AEP), which also agreed to reduce air pollution emissions to downwind states from its coal-fired electric power plants. AEP also committed $60 million to perform or finance environmental mitigation projects to address the impacts of past emissions.78 The consent order signed by the court directed AEP to provide the funds for the projects identified by the states through their respective attorneys general. The consent order was amended in 2013 to provide additional funds from AEP, also at the discretion of the state attorneys general.79

In 2009, the Attorney General directed $480,000 to the Marylanders Plant Trees program.80 That money funded 24,000 trees, which protect water quality, clean the air and provide wildlife habitat. In 2014, the Attorney General designated another $150,000 to go to the program, for a total of 31,500 coupons for native trees.

Recently, the Attorney General determined that $1 million of the designated funds should be used to promote the installation and use by the public of DC Fast Charging Stations for electric vehicles in the State. The OAG, the Maryland Energy Administration (MEA) and the Maryland Departments of the Environment (MDE) and Transportation (MDOT) have developed a grant program that MEA will implement to use and distribute these funds for the purpose of building an electric vehicle DC fast-charging infrastructure in Maryland to enable through-travel and help alleviate range anxiety of electric vehicle drivers. Grant applications are due by August 1, 2014 and grant awards are expected to be announced on September 1, 2014.

■ American Farm Bureau Federation v. EPA. The American Farm Bureau Federation filed suit in federal district court in Pennsylvania to challenge the EPA’s authority to establish the Chesapeake Bay Total Maximum Daily Load (TMDL) for nitrogen, phosphorous and sediment in the Bay. In September 2013, the court ruled in favor of EPA, finding that the EPA acted properly under the Clean Water Act81 and the Administrative Procedure Act.82 The American Farm Bureau Federation filed an appeal in the Third Circuit in December 2013. The Maryland

77 See http://www.oag.state.md.us/Press/2014/041714.html. 78 See http://www.oag.state.md.us/Press/2007/100907.htm. 79 See http://www.oag.state.md.us/Press/2013/022513.html. 80 See http://trees.maryland.gov/. 81 33 U.S.C. §1251 et seq. 82 5 U.S.C. §706. 32

Office of the Attorney General took the lead on authoring an amicus curiae or “friend of the court” brief on behalf of several Chesapeake Bay states supporting the EPA in their appeal to the Third Circuit. That appeal was pending in April 2014.

■ Commonwealth of Pa., et al. v. Allegheny Energy. Maryland joined with five other plaintiff states in a Clean Air Act (CAA) citizen suit in federal court in , Pennsylvania against Allegheny Energy for violation of New Source Review requirements. This is a fairly unusual case because it is one of a very small number of CAA New Source Review enforcement actions brought (an even smaller number of cases have gone to trial), and one of the only ones in which the EPA has not been involved. The plaintiffs sought injunctive relief to require Allegheny to install controls on 8 units at 3 of its Pittsburgh-area power stations, which would significantly decrease their emissions of sulfur dioxide and nitrogen oxide. Maryland is downwind of these plants and therefore these emissions directly impact air quality and the environment in Maryland.

The chief judge who presided over the case at an 8-day trial in 2010, and prior to that issued a summary judgment decision, passed way in April 2013 without having rendered judgment. Thereafter, the new chief judge took over the case. All parties agreed that they did not wish the new judge to re-hear trial testimony or any other testimony, but to render a decision based on the trial transcript and the voluminous record. The judge recently issued a judgment in favor of Allegheny Energy and against the plaintiff states on all counts in the complaint.

On March 10, 2014, Maryland, New York and Connecticut noted an appeal in the Court of Appeals for the Third Circuit.

■ New York, et al. v. EPA. In September 2013, Maryland and six other states, as well as the Puget Sound Clean Air Agency in Washington, joined New York in filing a complaint against the EPA seeking regulation of air pollution emissions from wood boilers. On February 3, 2014, EPA published a proposed rule in the Federal Register, and in an effort to settle this matter, offered to publish the final rule within a year of the date of the publication of the proposed rule, which is consistent with the statutory requirement. In February 2014, the parties agreed to the proposed settlement.

In the proposed rule, EPA proposes to amend the Standards of Performance for New Residential Wood Heaters and add two new subparts: Standards of Performance for New Residential Hydronic Heaters and Forced-Air Furnaces and Standards of Performance for New Residential Masonry Heaters. The proposed rule states that it is aimed at achieving several objectives for new residential wood heaters and other wood-burning appliances, including applying updated emission limits that reflect the current best systems of emission reduction; eliminating exemptions for a broad range of residential wood combustion devices; strengthening test methods as appropriate; and streamlining the certification process.

Pursuant to the Clean Air Act, the proposed rule would affect only new sources; once the final rule is promulgated, the Clean Air Act requires EPA to promulgate regulations to establish a procedure under which states must establish standards for existing sources.

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■ EPA Mercury Emissions Standards. In March 2012, the Attorney General joined 11 states and the District of Columbia in defending the Environmental Protection Agency's Mercury and Air Toxics Standards (“MATS”) rule against an appeal in federal court, arguing that mercury emissions by electric power plants are highly toxic and a threat to public health. After the EPA issued its standards in February 2012, various industry groups brought cases challenging the standards, which aim to reduce mercury emissions by 90 percent through the implementation of technology already used in the industry.

Mercury is highly toxic to humans, especially to developing fetuses and children, and wildlife. Deposited mercury can change into methylmercury, an even more toxic form, which can accumulate in the food chain, causing serious illness and learning disabilities. As a sector, electricity generating plants are the largest domestic source of mercury emissions in the United States. The MATS allows existing sources three years to comply, and notes that up to two additional years may be allowed in certain special cases. The EPA estimates that health benefits of the MATS rule will range from $37 to $90 billion annually, and will cost electric power plants only $3 to $9 billion a year.

The MATS will ensure that power plants in the rest of the country are subject to the same low mercury emissions limits already in place in Maryland. In 2006, Maryland enacted the Healthy Air Act, which required major reductions in mercury emissions to be phased-in at Maryland power plants starting in 2010 with additional reductions in 2013. The Healthy Air Act impacts Maryland's largest coal-burning power plants, which account for over 95% of the state's power plant emissions. At full implementation Maryland's Healthy Air Act will reduce mercury emissions by 90 percent. In fact, data from the last four quarters submitted by these coal-fired plants in Maryland show mercury emissions have already been reduced by 88 percent (953 pounds per year to 110 pounds per year) without affecting reliability.

EPA and the intervening states filed briefs in the United States Court of Appeals for the District of Columbia Circuit in April 2013. The Court heard arguments on December 10, 2013. On April 15, 2014, the Court upheld the EPA’s MATS rule.

Greenhouse Gas Emissions. Recognizing the importance of reducing greenhouse gas emissions, the Office of the Attorney General participated in significant litigation on this issue:

■ Utility Air Regulatory Group v. EPA. In this case, the plaintiffs have challenged the regulation of greenhouse gas emissions from power plants, established by the Obama administration in 2009. Specifically, they argued that the EPA impermissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act83 for stationary sources that emit greenhouse gases. In January 2014, the Attorney General, joined by attorneys general from 14 other states, filed an amicus curiae, or “friend of the court” brief arguing the states’ interest in EPA’s authority to

83 42 U.S.C. §7401 et seq. 34

protect air quality. As argued in the state’s brief, greenhouse-gas permitting has, like the rest of the PSD (Prevention of Significant Deterioration permitting) program, resulted in more efficient and less polluting industrial processes, delivered at reasonable costs. By contrast, limiting the PSD program to cut out greenhouse gases altogether not only risks disrupting controls for other dangerous pollutants; it also forfeits the public health and welfare benefits associated with applying this well-tested program to greenhouse-gas pollution.84 The United States Supreme Court heard argument in the case on February 24, 2014.

■ Coalition for Responsible Regulation, et al. v. EPA and Ohio Coal Association, et al. v. EPA

In the first case (Coalition), Maryland joined with several other states in support of the EPA against the petitioners, who were seeking review of the EPA's decision to adopt light-duty vehicle greenhouse gas emission standards for model years 2012 to 2016. The new EPA rules were adopted pursuant to a National Program advanced by the federal government, California, and the automobile manufacturing industry. If the federal government adopts greenhouse gas emission standards equivalent to California's already-adopted and approved standards, California would allow compliance with the federal standards to be deemed compliance with its standards; in turn, the automobile industry would drop its lawsuits challenging the California standards and would not challenge these federal standards.

The second suit (Ohio Coal) challenged the EPA's "Tailoring Rule," which became final on June 3, 2010, and which tailors the applicability of permitting requirements under the Prevention of Significant Deterioration ("PSD") and Title V programs of the Clean Air Act for new and modified stationary sources of greenhouse gas emissions. Maryland joined 12 other states in intervening in July 2010 in support of the EPA in this matter. This rule essentially phases in regulation of greenhouse gas emissions over time, starting with those sources that are already subject to PSD and Title V permitting requirements for other pollutants, followed by other sources that are the largest emitters of greenhouse gases, but are not already subject to PSD/Title V requirements for other pollutants.

These two cases were consolidated by the United States Court of Appeals for the District of Columbia Circuit. The Court ultimately dismissed the petitions for review and found in favor of the EPA, on whose behalf Maryland and the other states had intervened. The Supreme Court denied certiorari on October 15, 2013.

Environmental Crimes Enforcement. Throughout the audits, the Attorney General heard repeated concerns about enforcement against polluters. He has worked diligently to respond to those concerns by supporting greater environmental enforcement throughout the State and prosecuting polluters for environmental crimes. Over the past year, the Environmental Crimes Unit of the Office of the Attorney General (ECU) successfully prosecuted a number of environmental crimes statewide, including the following:

84 See http://www.oag.state.md.us/Press/2014/022314.html. 35

■ State v. Fox. On April 29, 2013, Richard Kevin Fox, Jr., pleaded guilty in Baltimore City Circuit Court to a felony charge for improper disposal and abandonment of a controlled hazardous substance. He was sentenced to five years’ incarceration, all but 18 months of which was suspended, and two years’ supervised probation. On April 28, 2012, a special investigator with Baltimore City Housing Permits and Code Enforcement arrived at a site in the 1800 block of South Monroe Street and found two full 55-gallon drums that had been dumped on the side of the street in an empty lot. Samples taken from the drums tested positive for hazardous waste and the liquid found in the drums was consistent with wastewater from brick-washing activities. Brick-washing involves the removal of paint from building facades and is a common practice in Baltimore. Many of the buildings are covered in lead-based paint and the proper removal of the paint is necessary to avoid the release of toxic waste. If improperly removed, the waste generated results in hazardous waste and water pollution violations. Investigators were able to locate the vehicle used in the dumping and Fox was identified as the driver of the vehicle, which belonged to a contractor for whom he worked. Fox admitted that he had been asked to dispose of the drums for money and that he dumped the drums in the location where they were found.85

■ State v. National Waste Clean, LLC. In June 2013, National Waste Clean, LLC, a New Jersey-based company, pleaded guilty in the District Court for Prince George's County to transporting hazardous waste without a permit. The company was sentenced to a $50,000 fine with all but $15,000 suspended and three years’ probation to ensure ongoing compliance with all regulations. The permitting violation was discovered in March 2012 while investigators from the Attorney General's Environmental Crimes Unit were looking into separate hazardous waste violations of a dry cleaning business. During the initial probe, investigators learned that National Waste Clean was the normal hauler for the dry cleaner. The company picks up controlled hazardous waste products from clients in numerous states, including Maryland, and then transports those wastes to a licensed facility in Canada. Any hauler of controlled hazardous substances in Maryland is required to be licensed by the Maryland Department of the Environment; requiring valid permits and proper reporting are vital and necessary to track hazardous waste to ensure that it is being properly disposed and poses no danger to citizens. National Waste Clean was issued a one-year Controlled Hazardous Substances hauler permit in 2011. Although MDE sent multiple notices of the need to obtain a new permit, no renewal request was submitted by the hauler and the permit expired. Despite lacking a valid permit, the company continued to pick up and transport hazardous waste materials in Maryland. Evidence determined that the company properly disposed of the hazardous waste once picked up and has since obtained the proper permits.86

■ State v. Sterling. On June 20, 2013, Gregory Sterling pleaded guilty in the Somerset County District Court to polluting state waters by abandoning a dilapidated and sinking boat in the Little Annemessex River, a tributary of the Chesapeake Bay. He was sentenced to 45 days in jail. According to the investigation, a waterfront property homeowner on Wellington Road in Crisfield reported to the Natural Resources Police that a boat had been tied up at his dock without his permission. Upon interviewing other persons normally in the area, investigators

85 See http://www.oag.state.md.us/Press/2013/042913.html. 86 See http://www.oag.state.md.us/Press/2013/061213.html. 36

determined that Sterling was the person who had left the 21-foot Bayliner cabin cruiser tied up at the dock. The boat, which had no motor, was flooding and about to sink. When interviewed, Sterling admitted placing the boat at that dock. Claiming that he had an ownership right in the dock and was asserting his right to use it, he refused to remove the boat. In a civil proceeding, a circuit court judge denied the defendant's claim of ownership. The boat subsequently came away from its moorings at the dock and proceeded to sink.87

■ State v. Coleman. In July 2013, Harold Dean Coleman, Jr., pleaded guilty in Kent County Circuit Court to illegally dumping oil into the waters of the Millington Wildlife Area in Kent County and defacing the land of a state wildlife area. He was sentenced to six months incarceration with all but four days suspended, a $10,000 fine with all but $5,000 suspended, 50 hours of community service and two years’ probation. In the pre-dawn hours of April 5, 2011, DNR employee Edmund Cook came upon an oil tanker parked on the wrong side of Black Bottom Road in the Millington Wildlife Management Area. Cook saw two men jump quickly into the waste oil tanker truck that was parked at an angle alongside a drainage ditch. When he investigated, Cook detected the strong smell of oil and observed an oil discharge in the ditch. He also saw the suspects attempting to turn around in a parking lot and observed identifying information -- Richland Oil Refining -- on the truck door. Later, the Maryland Department of the Environment's Emergency Response Division discovered substantial amounts of petroleum in the ditch that was flowing into a marshy area, which feeds into a nearby stream, and took measures to prevent the further spread of oil. Investigation by DNR police revealed that Coleman was one of the men in the waste oil tanker truck.88

■ State v. John R. Pasquinelli Enterprises, Inc. In July 2013, John R. Pasquinelli Enterprises, Inc., located in Edgewood, pleaded guilty to making a false statement in a 2011 underground storage tank system compliance inspection report. Harford County District Court Judge Mimi R. Cooper imposed a fine of $10,000, with all but $5,000 suspended, and placed the corporation, which conducts business as J.C. Discount Tires, on probation for one year. The company's false report was discovered by the Maryland Department of the Environment after a discrepancy was observed between the report submitted by the company hired to do the testing and the report ultimately submitted by the company. The testing company had been told by the defendant not to perform a test on the facility's "catch basin," also known as a spill bucket. However, the testing company's report had been altered by the defendant to show a passing test for the "catch basin." An investigation revealed that the facility's first record of "catch basin" testing was performed in 2008. At that time, the "catch basin" for the regular gasoline tank fill port had failed. The next record of testing received by MDE was in 2009 when three spill buckets failed. No testing results were received for 2010.

A failing underground gasoline tank poses a unique threat to the drinking water and overall health of the surrounding community. Regular inspections of these facilities help prevent the

87 See http://www.oag.state.md.us/Press/2013/062013.html. 88 See http://www.oag.state.md.us/Press/2013/073113a.html. 37

safety risks and great expense that follows when gasoline seeps into the soil and eventually the water table.89

■ State v. Capitol Petroleum Equipment, Inc. In July 2013, Capitol Petroleum Equipment, Inc., located in Beltsville, pleaded guilty to making false statements in an application for an underground storage system technician. Prince George's County District Court Judge Erick H. Nyce imposed a fine of $10,000, with all but $3,000 suspended. An investigation revealed that false statements were made in an application completed by the company for the underground storage tank technician certification of one of their employees. It was discovered that the employee, William Todd Eason, had never worked at any of the six sites listed by the company on the application. Eason told investigators that the work on the sites listed all occurred before he began employment.

In addition to passing the certification test, the Maryland Department of the Environment requires an applicant to have had direct involvement in a minimum of six underground storage systems installations.90

■ State v. Pierce. In August 2013, Donald Charles Pierce pleaded guilty to two counts of exceeding daily fishing limits on striped bass as a commercial waterman. Kent County Circuit Court Judge Paul M. Bowman ordered Pierce to pay a $4,000 fine to the Natural Resources Fisheries Research and Development Fund. In addition, Pierce’s entire fishing license was suspended for 30 days and his license specifically for striped bass was suspended for one year. After receiving information that Pierce had been using fishing licenses that did not belong to him during the striped bass season in January and February of 2011, Maryland Natural Resources Police began an investigation. Striped bass regulations from 2011 allowed Pierce to catch the daily legal limit of 300 pounds per striped bass allocation. There was also a maximum permitted allotment for total catch per boat of 1,400 pounds per day. The defendant used a check station at Ford's Seafood in Rock Hall for his striped bass catch; records were obtained from that facility, as well as from the filings made to the Department of Natural Resources. The investigation determined that Shirlyn Edwards had given Pierce her deceased husband's striped bass allocation to use and that Nevitte Ford, owner of Ford's Seafood, had given the defendant his striped bass allocation to use. Neither of these striped bass allocations was properly transferred to Pierce, who himself already held the maximum number of permits per person of four striped bass allocations. Records from Ford's Seafood and witness interviews revealed that on February 1, 2011, Pierce checked in 1,101 pounds of striped bass under his allocations, as well as 313 pounds under the deceased Mr. Edwards' allocation and 324 pounds under the allocation of Mr. Ford. Additionally, Allen Sutton, who was fishing on the defendant's boat that day, checked in 690 pounds of striped bass under his own two allocations. Thus a total of eight allocations, four over the maximum allowed, were checked in striped bass from Pierce's boat on that date. The checked striped bass from the defendant's boat totaled 2,428 pounds -- 45 percent over the legal limit. On February 25, 2013, Pierce checked in 1,389 pounds of striped bass under his allocations, as well as 245 pounds under the deceased Mr. Edwards' allocation. Mr. Sutton was

89 See http://www.oag.state.md.us/Press/2013/072513.html. 90 See http://www.oag.state.md.us/Press/2013/072613.html. 38

again fishing on the defendant's boat that day and checked in 670 pounds of striped bass under his own allocations. The total striped bass checked in from the defendant's boat with 7 allocations was 2,307 pounds, 36 percent over the legal limit.

Striped bass fisheries are managed on a coast-wide level by the Atlantic States Marine Fisheries Commission (ASMFC), which is comprised of 15 member states from Maine to Florida. The harvest of striped bass is managed according to an ASMFC fishery management plan to ensure the sustained health of the coastal population and its dependent fisheries. The illegal taking of striped bass in any jurisdiction along the Atlantic coast threatens the long-term health of this highly-valued coastal migratory fish.91

■ State v. Catlin. In March 2014, William Catlin and his brother, Irving Catlin, were convicted in the first case ever charged under the use of the Maryland Law Enforcement Information Network (MLEIN) radar system. Both defendants were found guilty of unlawfully harvesting oysters from a state sanctuary. Somerset County District Court Judge Paula Price ordered William Catlin to pay a $1,000 fine and Irving Catlin to pay a $450 fine.

The MLEIN system consists of radar and cameras used throughout the Chesapeake Bay for homeland security, to monitor vessel activity and to assist first responders. It was established in 2010 and three years later, Maryland became one of the first jurisdictions in the nation to put it to work protecting natural resources. MLEIN "draws" an electronic fence around sensitive areas, such as oyster sanctuaries. When the "fence" is tripped by a vessel that enters the area, Maryland Natural Resources Police (NRP) can monitor the vessel in real time from their laptop computers.

According to the investigation, an NRP officer assigned to Somerset County on November 25, 2013, was monitoring activities in the area of the Deal Island radar system on his computer. He spotted what appeared to be an oyster dredging vessel inside the sanctuary in Tangier Sound. The officer was able to monitor the movements of the vessel while responding to the location. The work boat, captained by William Catlin, was identified by the officer as the boat seen on MLEIN. The officer watched the boat leaving the sanctuary area and stopped the vessel. Upon finding active oyster culling being done by Irving Catlin, the officer ordered the men to return the seven bushels of oysters found on board to the sanctuary and issued the citation charges for the violation.

Sanctuaries are areas where the wild harvest of oysters, and both oysters and clams in previously established sanctuaries, is prohibited. They often contain oyster restoration projects to help enhance native oyster populations for their environmental benefits.92

Natural Resource Criminal Violations. The Attorney General’s Office was instrumental in the planning and implementation of a pilot enforcement program for natural resource criminal violations. Historically, fishing, hunting and forestry criminal violation cases were not always prosecuted aggressively in Maryland courts. To address this problem, the OAG worked closely with the

91 See http://www.oag.state.md.us/Press/2013/082013.html. 92 See http://www.oag.state.md.us/Press/2014/032114.html. 39

Department of Natural Resources and the Maryland District Court to establish a special natural resources docket in the Anne Arundel County District Court. Since January 2010, all natural resource cases in Anne Arundel County have been heard on a designated day each month on a special docket. The natural resources docket allows prosecutors and judges to focus on natural resources law, become acquainted with repeat offenders and better assess the gravity of the violations.

The successful program has since been expanded several times. Today, 18 of Maryland’s 24 jurisdictions have special natural resources dockets and DNR is working to have special dockets in the remaining jurisdictions (Baltimore City, and Frederick, Harford, Montgomery, Prince George’s, and Washington counties).93

Fisheries Violations. Since initiating his first audit in April 2008, the Attorney General has heard from many participants about over harvesting of oysters, crabs and fish, as well as other fishing license violations. During the 2011 legislative session, the Attorney General supported important legislation to address these problems, including bills that allow DNR to revoke a person’s license to catch oysters;94 to revoke a license to catch crab or striped bass for designated violations;95 and to seek enhanced penalties for committing certain commercial fisheries violations while a license is suspended or revoked.96

Since that time, assistant attorneys general who represent the Department of Natural Resources have aggressively and successfully enforced these and other fisheries statutes. Over the last year alone, the OAG has sought and obtained the suspension of commercial and recreational fishing licenses of numerous individuals for a variety of violations, including possession of undersized oysters, crabs and summer flounder; possessing crabs out of season; possessing oysters over the daily catch limit; operating a haul seine without a state seal; and fishing in a closed trout stream. In one particularly egregious case, the OAG sought revocation of a commercial fishing license for three violations of possession of undersized oysters. A hearing was held on April 1, 2014, and an order is pending.

93 See http://dnr.maryland.gov/nrp/pdfs/nrpstandalonecourtdates.pdf. 94 See HB273, available at http://mlis.state.md.us/2011rs/bills/hb/hb0273t.pdf, and SB 159, available at http://mlis.state.md.us/2011rs/bills/sb/sb0159t.pdf. 95 See HB1154, available at http://mlis.state.md.us/2011rs/bills/hb/hb1154t.pdf, and SB635, available at http://mlis.state.md.us/2011rs/bills/sb/sb0635e.pdf. 96 See HB 1225, available at http://mlis.state.md.us/2011rs/bills/hb/hb1225t.pdf, and SB655, available at http://mlis.state.md.us/2011rs/bills/sb/sb0665f.pdf. 40

CONCLUSION

NASA image of the Chesapeake Bay watershed

During the 2013 environmental audits, the Attorney General met with elected officials, environmental leaders and community members from the Liberty and Prettyboy Reservoirs, Wicomico River and Antietam Creek watersheds. At each watershed audit, the Attorney General learned about environmental matters specific to that location, ranging from invasive non-native species, to failing septics, to streambed erosion, to agricultural animal waste. Just as often, however, the audits revealed concerns common among the watersheds. Notable among these was a concern related to urban and residential growth, primarily from stormwater, erosion, sediment and wastewater treatment. Other common issues included the concern about pollution from out-of-state sources and the benefits of greater enforcement against polluters. As this information was gathered from each watershed, the Attorney General worked with his regulatory partners to identify and target polluters; initiated and concluded criminal prosecutions, and civil enforcement actions and lawsuits; and obtained significant civil and criminal monetary penalties that will enhance future enforcement efforts.

Much remains to be done to save the Chesapeake Bay and to protect other Maryland waters, as the Attorney General is acutely aware. The actions he and his office are able to take as a result of these environmental audits, however, help improve the health of the Bay and other State waters in important ways. For instance, information provided by the watershed communities he visits allows the Attorney General to identify and target individuals and corporations that pollute, as well as to determine where carefully tailored legislation can make a difference. Through the audits, the Attorney General has also established relationships with those citizens in Maryland’s watersheds who provide eyes and ears to help identify polluters and other environmental threats. Communication continues long after the day spent at each river, as new issues and problems arise with regularity, and what has been learned will inform future audits and enhance their effectiveness.

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