January 4, 2013 Via Electronic and First Class Mail Mr. Michael

January 4, 2013

Via Electronic and First Class Mail

Mr. Michael Richardson Water Management Administration Maryland Department of the Environment 1800 Washington Boulevard Baltimore, Maryland 21230 [email protected]

RE: Comments on Draft General Permit for Discharges from Stormwater Associated with Industrial Activities; Discharge Permit No. 12-SW; NPDES Permit No. MDR0000

Dear Maryland Department of the Environment (MDE):

Thank you for the opportunity to comment on MDE’s Draft General Permit for Discharges from Stormwater Associated with Industrial Activities (Draft Permit or Permit). These comments are submitted on behalf of Blue Water Baltimore, Inc., the Environmental Integrity Project, as well as the other undersigned environmental non-profit organizations.

Blue Water Baltimore is a grassroots environmental organization dedicated to restoring the quality of Baltimore’s rivers, streams and Harbor to foster a healthy environment, a strong economy, and thriving communities. Specifically, the Baltimore Harbor WATERKEEPER program of Blue Water Baltimore is dedicated to stopping water pollution in the Baltimore Harbor watershed through the use of advocacy, enforcement, education, and water quality monitoring. Baltimore is one of Maryland’s main industrial centers, and consequently, members of Blue Water Baltimore use and enjoy waterways adversely affected by the industrial stormwater discharges regulated by the Draft Permit, including the Jones Falls, Gwynns Falls and Direct Harbor within the Baltimore Harbor/ Patapsco River watershed and the Herring Run within the Back River watershed.

The Environmental Integrity Project (EIP) is a national non-profit organization dedicated to advocating for more effective enforcement of environmental laws, with a focus on Clean Water Act (CWA) enforcement in the Chesapeake Bay watershed. EIP works to provide objective analysis of how the failure to enforce or implement environmental laws increases pollution and affects the public's health; to hold federal and state agencies, as well as individual corporations, accountable for failing to enforce or comply with environmental laws; and to help local communities obtain the protection of environmental laws.

The fundamental purpose of the Draft Permit is to help “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 1 For the reasons discussed in these comments, MDE must revise the Permit in order to achieve this goal and to meet minimum legal requirements for issuing stormwater National Pollutant Discharge Elimination System (NPDES) permits.

Introduction

I. Cleaning up Maryland’s Waterways Will Require Clear and Enforceable Terms in the Industrial Permit

Stormwater runoff from industrial sites is a major source of the pollution degrading Maryland’s waterways. This pollution is one of the main reasons Maryland’s waterways are currently suffering so badly and are often unsafe for residents to swim, fish, and crab in. Pollutants such as nutrients and sediment enter our waterways through industrial stormwater, and contribute to the fish kills and algal blooms that occur across Maryland each year. Toxic metals entering our waterways from industrial stormwater pollution accumulate in the tissue of fish and crabs, leading to human health risks when consumed. The CWA requires that our waterways be restored to fishable and swimmable pollutant levels and the Draft Permit, although a significant improvement over the current permit, must be strengthened in order to do so.

The final permit must clearly and unequivocally mandate reductions of stormwater pollution into Maryland’s waterways. Currently, due in part to the lack of specific and enforceable requirements in the existing permit, stormwater pollution regularly fouls Maryland’s waterways and the Chesapeake Bay.2 Maryland’s residents and visitors, who endure unsavory and unsightly surface water conditions, unsafe conditions for water-contact recreation, and health risks associated with subsistence fishing, pay the costs of stormwater runoff.3 The burdens of

1 33 U.S.C. § 1311(a). 2 See list of impaired waterways in Maryland in MDE’s Integrated Report: http://www.mde.state.md.us/programs/Water/TMDL/Integrated303dReports/Pages/Programs/WaterPrograms/TMD L/Maryland%20303%20dlist/index.aspx (last visited 1/1/13). 3 See Gibson and McClafferty, Identifying Populations at Risk for Consuming Contaminated Fish in Three Regions of Concern, Results for Baltimore Region of Concern (March 29, 2005) available at http://pbadupws.nrc.gov/docs/ML1005/ML100500321.pdf (last visited 1/1/13); see also Addressing the Risk:

2 excessive stormwater pollution and uncontrolled stormwater flows are also borne by Maryland’s native wildlife, whose health and survival depends on clean water.

The deplorable state of Maryland’s water bodies is one of the clearest indications that weak and vague permits issued by MDE in the past simply have not worked. Without clear water quality-based requirements in the Permit, many of the considerable resources that will be expended on Maryland’s stormwater management programs will go to waste. It is therefore imperative to the people, environment and wildlife of Maryland, and of the Chesapeake Bay, that MDE revise the Draft Permit to include enforceable permit terms that reflect the good intentions of MDE in drafting this permit.

II. This Permit is an Integral Regulatory Mechanism for Enforcing the Chesapeake Bay TMDLs and Associated Watershed Implementation Plans (WIPs)

The Permit is part of the regulatory regime identified in the “Accountability Framework” for implementing the Chesapeake Bay TMDLs, consistent with the legal requirements of the CWA.4 This permit, along with other NPDES permits such as the municipal separate storm sewer system (MS4) permits, are meant to serve as the primary difference between the Bay TMDL and prior Bay agreements, which lacked enforcement and accountability measures and consequently failed to achieve their goals, while wasting taxpayer dollars. The final permit must therefore include a clear and enforceable provision for implementing the wasteload allocations included in the Bay TMDL for nutrients and sediment in stormwater discharges to the Maryland’s waterways.5

III. Adding Clear and Enforceable Terms to the Draft Permit is Imperative if Real Water Quality Improvements Are to be Achieved

Congress adopted a national permitting program in order to bridge the gap between the states’ adoption of water quality standards and the continuing lack of tangible improvements in water quality. Permits issued for point source stormwater discharges are required to ensure that the pollution reductions needed to implement Maryland’s water quality standards (WQS) are actually achieved. 6 Accordingly, the final permit must be an enforceable regulatory instrument that ensures compliance with WQS. To this end, MDE should draw from existing guidance and studies discussed below, which identify the critical elements of writing successful stormwater permits.

Understanding and Changing Angler’s Attitudes About the Dangers of Consuming Anacostia River Fish available at http://www.anacostiaws.org/userfiles/file/AWS_angling_FINAL_web.pdf (last visited 1/1/13). 4 See EPA, Final Chesapeake Bay Total Maximum Daily Load, 7-1 (Dec. 29, 2010) (hereafter Bay TMDL). 5 See infra Section III.B.2. 6 See Gov’t of the Dist. of Columbia, MS4 System , 10 E.A.D. 323, 335 and 342-43 (2002).

In its guidance designed to address stormwater permits in the Chesapeake Bay and Mid- Atlantic region, EPA recommended the following:

Issuing Permits with Clear and Measurable Provisions: It is critical that all permit provisions be clear, objective, specific, measurable, and enforceable. Permits should incorporate clear performance standards, include measurable goals or quantifiable targets for implementation and include specific deadlines for compliance . Doing so will clarify expectations for permittees and also allow permitting authorities to more easily assess compliance. These are not elements to be delegated to permittees as part of their stormwater management program planning or updating processes. Practicability determinations are the obligation of the permitting authority not the permittee. Vague phrases such as "as feasible" and ‘as possible’ and ‘practicable’ are to be avoided in a permit because such caveats allow subjective interpretation, result in inconsistent implementation by permittees, and create difficulties in permit authority oversight and enforcement. The permit writer’s role is to determine what is necessary to achieve in effluent controls and to develop clear, enforceable language that conforms to these determinations. 7 Although this guidance was specifically aimed at municipal stormwater permits, it is equally applicable to, and important for, industrial stormwater permits. MDE should integrate this guidance into the Draft Permit by clarifying ambiguous terms such as “feasible.”

More recently, EPA has provided updated guidance on “providing numeric water quality- based effluent limitations in NPDES permits for stormwater discharges.” The memo states:

The Clean Water Act (CWA) requires that permits for stormwater discharges associated with industrial activity comply with section 301 of the Act, including the requirement under section 301(b)(l)(C) to contain WQBELs for any discharge that the permitting authority determines has the reasonable potential to cause or contribute to a water quality standard excursion. CWA section 402(p)(3)(A), 40 CFR 122.44(d)(1)(iii). When the permitting authority determines, using the procedures specified at 40 CFR 122.44(d)(1)(ii) that the discharge causes or has the reasonable potential to cause or contribute to an in-stream excursion of the water quality standards, the permit must contain effluent limits for that pollutant . EPA recommends that NPDES permitting authorities use numeric effluent limitations where feasible as these types of effluent limitations create objective and accountable means for controlling stormwater discharges .8

7 EPA, “Urban Stormwater Approach for the Mid-Atlantic Region and the Chesapeake Bay Watershed” at 5 (July 2010) available at http://www.epa.gov/reg3wapd/pdf/pdf_chesbay/MS4GuideR3final07_29_10.pdf (last visited 1/2/13) (emphasis added). 8 Hanlon and Keehner, “Revisions to the November 22, 2002 Memorandum ‘Establishing Total Maximum Daily Load (TMDL) Waste Load Allocations (WLAs) for Storm Water Sources and NPDES Permits Based on Those WLAs” at 3 (Nov. 12, 2010), available at http://www.epa.gov/npdes/pubs/establishingtmdlwla_revision.pdf (last visited 1/2/13) (emphasis added).

Taken together, the foregoing guidance documents make clear that the final permit must include clear and enforceable permit terms that are expressed as numeric effluent limitations whenever feasible. 9 Evidence that the existing permit requirements are ineffective can be found in the ongoing violations of water quality standards in Maryland, including ongoing failure to achieve the designated beneficial uses in the receiving waterbodies. MDE must therefore improve the Draft Permit significantly in order to achieve WQS.

IV. Increasing the Monitoring and Reporting Requirements, Public Transparency, and Imposing Clear Limits are Imperative to the Effective Enforcement of the Permit

Although the Draft Permit is a significant improvement over the current permit, MDE must strengthen and clarify the Permit requirements so that MDE’s good intentions result in real reductions to industrial stormwater pollution and corresponding improvements to water quality. It is imperative that the final permit include enforceable limits on the amount of pollution that is allowed to go into Maryland’s waterways, and also increased water quality monitoring, reporting, public transparency, and maintenance requirements. These revisions are necessary for the Permit to lead to compliance with WQS and to ensure that the Permit lives up to its important role in Bay-wide regulatory schemes. Furthermore, these revisions are necessary to allow for effective enforcement and oversight by both MDE and citizens.

At a minimum, MDE must revise the Draft Permit to be consistent with EPA’s Multi- Sector General Permit (MSGP). 10 Currently the Draft Permit is drastically less stringent than the MSGP, due to fewer enforceable and specific permit terms and fewer industrial sectors included in the benchmark monitoring requirements. 11

The necessity and importance of easily enforceable permit terms, greater public oversight, and therefore greater ability for citizens to supplement the limited enforcement resources of MDE, is illustrated by the following examples of industrial stormwater pollution in Baltimore that may have gone unnoticed if not for citizen reporting to MDE:

• J.W. Treuth & Sons 328 Oella Avenue Baltimore, MD 21228

J.W. Treuth & Sons (“Treuth”) is a slaughterhouse, meat processing plant and hide curing facility located in Ellicott City, Maryland. Blue Water Baltimore received several citizen reports

9 See infra Section III.B. 10 EPA, Multi-Sector General Permit for Stormwater Discharges Associated with Industrial Activity (MSGP) available at http://cfpub.epa.gov/npdes/stormwater/msgp.cfm (last visited 1/2/13). 11 See infra Section V.B.

5 regarding animal processing waste and other pollution discharges from the facility into the Cooper Branch, a tributary of the Patapsco River. The citizen reporter had observed pollution from the facility between 2008 and 2012. Both the citizen and Blue Water Baltimore reported the pollution to MDE and the Attorney General’s Office, which led to a Consent Order entered by MDE and Treuth on October 26, 2012. 12

The first two pollution incidents observed at this facility occurred in April, 2008 (grading to remove abandoned waste pit and waste/sediment allowed to wash into creek) and then in September, 2011 (facility’s truck hauling waste discharged liquid animal waste onto Frederick Road and Main Street in Ellicott City). 13 The 2011 incident was not reported by the facility, and the State found out only because the citizen followed the manure trail back to the facility and reported it to MDE. Then in January, 2012, the citizen observed and photodocumented liquid animal processing waste discharging from the Treuth facility into the Cooper Branch. 14 It appeared that processing waste was placed in a trailer and the trailer bed was left open to allow the waste to drain across the parking lot and into the creek.

This example emphasizes the need for stronger requirements in the final permit for the meat processing operation industrial sector, including benchmark monitoring requirements and numeric effluent limits. 15 This example also emphasizes the need for clear and direct permit terms so that it is easy for both MDE and citizens to spot and enforce against violations of the Permit. Lastly, this example clearly emphasizes the importance of citizen reporting and supplementation of MDE’s enforcement program which necessitates greater public transparency and reporting requirements in the final permit.

• Baltimore Recycling Center 1030 Edison Highway, Baltimore, MD 21213

The Center for Watershed Protection conducted an illicit discharge investigation in Baltimore during summer and fall of 2011 and found dry weather flows in a manhole at the corner of N. Linwood and E. Eager Streets. Sampling results showed concentrations of potassium, conductivity, fluoride, detergents and ammonia that are indicative of illicit industrial discharges. The levels were tracked to surface water discharges from Baltimore Recycling Center, and after the Center for Watershed Protection and Blue Water Baltimore followed up

12 See Consent Order attached hereto as Attachment A. 13 See CBS news article “Smell Lingers in Howard County After Liquid Manure Spill & Cleanup” available at http://baltimore.cbslocal.com/2011/09/19/crews-clean-up-manure-spill-in-howard-county/ (last visited 1/3/12). 14 See compilation of photodocumentation taken by citizen reporter in January, 2012 attached hereto as Attachment B. 15 See infra Section V.B.

6 with MDE about it, they were told that the discharges did not constitute a violation of the current industrial stormwater permit. 16

This example emphasizes the need for stronger requirements in the final permit that do not allow such harmful discharges, such as increased monitoring requirements and numeric effluent limits.

• LAI Construction Services, Inc. 10711A Philadelphia Road, Perry Hall, Maryland, 21128

LAI Construction Services, Inc. is a trucking company that transports building materials, among other things. Blue Water Baltimore received reports from concerned citizens during the spring and summer of 2011 regarding unstabilized stockpiles of sediment lacking perimeter controls, suspected improper storage of petroleum and other chemical materials, and stream buffer encroachment. Blue Water Baltimore then reported the issues to the MDE Water Management Administration Compliance program staff, which precipitated MDE inspections of the site on both May 25, 2011 and July 21, 2011.

MDE investigations found that the facility was not covered under a required NPDES Industrial Stormwater Permit with an associated stormwater pollution prevention plan (SWPPP), nor a permit application on file with MDE’s Industrial Permits Section. MDE investigations also uncovered violations of Maryland Article Title 9 and Title 4 requirements including, but not limited to, petroleum products improperly stored with the potential to discharges to waters of the State of Maryland; petroleum products improperly discharged to impervious surfaces; improper disposal of unmarked storage containers; improper discharge of wastewater from vehicle maintenance and washing operations; improper disposal of sediment and other debris within the 100 year floodplain; and absence of practices to control discharge of pollution to stormwater inlets located on the facility.17

This example emphasizes the need for clear and direct permit terms so that it is easy for both MDE and citizens to spot and enforce against violations of the permit. These terms should include the mandatory covering of all exposed material piles. This example also clearly emphasizes the importance of citizen reporting and supplementation of MDE’s enforcement program, which necessitates greater public transparency and reporting requirements in the Draft Permit.

16 See attached report sent by Blue Water Baltimore to MDE Industrial Permits Section in December, 2011, attached hereto as Attachment C. 17 MDE May 25, 2011 Inspection Report, attached hereto as Attachment D; MDE July 21, 2011 Inspection Report attached hereto as Attachment E.

The following sections of these comments expand on the above concerns by referencing specific sections of the Draft Permit. The comments are organized in the same order as the corresponding Draft Permit sections.

Specific Comments Organized by Draft Permit Section

I. Applicability

While we strongly support the Draft Permit’s clear prohibition on stormwater discharges that contribute to violations of WQS, it impermissibly allows new discharges to impaired waters under circumstances prohibited by EPA’s regulations. Specifically, the Draft Permit authorizes permit coverage for new stormwater discharges where the receiving water does not meet WQS, there is no TMDL in place, and existing dischargers are not subject to compliance schedules. 18 Federal rules state that “no permit may be issued:

…

(i) To a new source or a new discharger, if the discharge from its construction or operation will cause or contribute to the violation of water quality standards. The owner or operator of a new source or new discharger proposing to discharge into a water segment which does not meet applicable water quality standards or is not expected to meet those standards even after the application of the effluent limitations required by sections 301(b)(1)(A) and 301(b)(1)(B) of CWA, and for which the State or interstate agency has performed a pollutants load allocation for the pollutant to be discharged, must demonstrate, before the close of the public comment period, that:

(1) There are sufficient remaining pollutant load allocations to allow for the discharge; and

(2) The existing dischargers into that segment are subject to compliance schedules designed to bring the segment into compliance with applicable water quality standards…” 19

This rule prohibits states from allowing new discharges into impaired waters, unless the new discharge will not exceed the WQS when combined with the existing waste load allocations (WLA) and load allocations (LA), and all existing dischargers are subject to compliance plans if not yet in compliance with their WLAs. The new discharge must fit into an overall plan that will bring the waterway into compliance with WQS. If there is no TMDL in place yet, and therefore no allocations or compliance schedules to restore water quality, MDE may not authorize a new

18 Draft Permit at 6. 19 40 C.F.R. § 122.4(i).

8 discharge regardless of whether the discharger asserts that the stormwater will meet the water quality criteria at the point of discharge.

Recent 9 th Circuit case law supports this plain language interpretation. In Friends of Pinto Creek ,20 the Court held that EPA could not permit a new copper discharge into a copper- impaired river even where EPA had issued a TMDL, because existing dischargers were not yet subject to WLAs or compliance schedules – even if the new source purchased offsets for its copper discharge. Because the regulation requires the new source to “show how the water quality standard will be met” if the new discharge is permitted, the Court made clear that the obligation to account for existing pollution sources and establish compliance schedules also extends to non-point sources where point source WLAs alone will not meet WQS. 21 Any new discharge into an impaired water that does not meet these requirements will “cause or contribute to the violation of [WQS].” 22

MDE also should revise the Draft Permit to prohibit facilities discharging into any impaired waters, not just those impaired for nutrients or sediments, from acquiring a no-exposure certification. The Draft Permit allows facilities to obtain certificates exempting them from permit requirements if there is no potential for their stormwater to come in contact with pollutants. Facilities discharging into watersheds impaired for nutrients or suspended solids are not eligible, but presumably those discharging into waters impaired for other pollutants are. The Draft Permit does not provide a basis for this arbitrary distinction, and MDE should extend this restriction on eligibility to discharges into waterways impaired for other pollutants.

The final permit should also clarify the definition of the receiving “watershed” by limiting it to the receiving stream segment,23 and ensure that downstream impairments are taken into consideration when determining whether a facility may obtain a permit exemption certification.

II. Authorization Under this Permit

The Draft Permit will significantly improve transparency by making SWPPPs publicly available and requiring that dischargers submit their SWPPPs electronically. However, MDE should go one step further by maintaining a publicly accessible database on its website where

20 Friends of Pinto Creek v. U.S. Envt’l Protection Agency , 504 F.3d 1007 (9th Cir. 2007). 21 Id . at 1014. 22 40 C.F.R. § 122.4(i). The Maryland Court of Special Appeals’ holding in Assateague Coastkeeper (Assateague Coastkeeper v. MD Dep’t of the Environment , 200 Md.App. 665 (Sept. 6, 2011)) does not affect this analysis, because the Draft Permit would allow net increases of pollution into impaired waters. 23 MDE should define stream segment as no larger than the federal 12 digit watershed level (also called the 12 digit hydrologic unit code or HUC) or the equivalent Maryland 8 digit watershed level.

9 citizens can read any permit holder’s current SWPPP and related documents,24 as well as all Notices of Intent (NOIs) for coverage under the Permit as they are received. This would require minimal MDE resources, would improve accountability, and would facilitate citizen enforcement and oversight.

In addition, each NOI and SWPPP that facilities submit to MDE for coverage under the Permit should be subject to public comment. MDE should follow the same process that it uses for its General Permit for Stormwater Discharges Associated with Construction Activity, which includes publishing the NOI on its website once it is received, providing access to the Erosion and Sediment Control Plan, and holding a public comment period.25 Alternatively, MDE could follow the lead of the State of Washington Department of Ecology, which requires the permittee to provide public notice of its NOI once a week for two weeks and then provides a 30 day public comment period. 26 MDE should make both the NOI and the SWPPP subject to that comment period and also provide a public hearing upon request.

Furthermore, MDE should increase the fee for coverage under the Permit by at least 50 percent to more realistically address the costs of implementing the permitting program, and to be consistent with other states.27 The current fee of $550 has remained unchanged for at least a decade. This negligible fee does not reflect the actual costs of MDE’s oversight and enforcement of the permitting program. These costs will likely continue to rise due to new obligations under the Bay TMDL, and should be partially absorbed by the permittees.

III. Stormwater Management Requirements

A. Restoration Requirement

The 20 percent impervious surface restoration requirement in the Draft Permit is a critical step towards restoring Maryland’s rivers and streams, as well as meeting Chesapeake Bay and local TMDL goals. However, it does not go far enough. Neither the Draft Permit nor the Fact

24 See infra Section V.C. for specific documents that should be both submitted to MDE and maintained in a publicly accessible fashion. 25 See http://www.mde.state.md.us/programs/Permits/WaterManagementPermits/WaterDischargePermitApplications/Page s/permits/watermanagementpermits/water_applications/gp_construction.aspx (last visited 1/1/13). 26 See State of Oregon’s NOI [hereinafter “State of Oregon NOI”] available at https://fortress.wa.gov/ecy/publications/publications/ecy02084.pdf (last visited 1/1/13); See also State of Oregon’s General Permit for Industrial Stormwater Discharges [hereinafter “State of Oregon General Permit”] available at http://www.deq.state.or.us/wq/wqpermit/docs/general/npdes1200a/permit2012.pdf (last visited 1/1/13). 27 See State of Oregon fee schedule ($803 for new applications and $826 annual fee) available at http://www.deq.state.or.us/wq/wqpermit/stminfo.htm (last visited 1/1/13). See also State of Washington fee schedule (annual fee ranges from $128 to $2,006 depending on gross revenue of permittee) available at http://apps.ecy.wa.gov/permithandbook/permitdetail.asp?id=17 (last visited 1/1/13).

Sheet explain why facilities developed or redeveloped after 2002 are exempt from restoration requirements. 28 The 2002 General Permit did not include a restoration requirement, 29 the 2002 Design Manual did not include a restoration requirement, 30 and to the best of our knowledge other applicable laws in effect since 2002 have not imposed similar requirements on this universe of stormwater dischargers. Exempting all new or redeveloped sites from this provision is arbitrary and capricious, and will significantly limit the water quality benefit of the Permit.

MDE should revise the restoration requirement to ensure equivalency between the industrial discharges from the permittee’s facility and the discharges prevented by restoration practices (in pollution type, amount, and location). The restoration requirement contains loopholes that will limit the effectiveness of restoration projects, and prevent the projects from leading to attainment of water quality standards and TMDL WLAs at the site. 31 For example, the Draft Permit allows restoration on “any untreated impervious surface on [the] facility, not just those in areas of industrial activity.” 32 Restoration of impervious surface will be most effective, and only lead to compliance with water quality standards and WLAs, if it takes place where stormwater carries pollutants of concern to Maryland waters, i.e., in areas of industrial activity.

The Draft Permit’s proposal to allow restoration off-site if on-site restoration is not “feasible” raises the same concerns. MDE must clarify when restoration is “feasible” and should in all cases limit off-site restoration to areas that drain to the same stream segment 33 . Because restoration that takes place outside the area of industrial activity or off-site will likely be less effective at reducing the relevant pollutants of concern, facilities that elect to restore impervious surface in these areas should be subject to a restoration requirement of greater than 20 percent and must meet water quality standards and WLAs on-site with other control practices. MDE should seek to require comparable pollution reductions through restoration, rather than focusing solely on the amount of surface area restored.

The final permit should further emphasize the operation and maintenance requirement for all restoration or best management practices (BMPs) and control practices installed pursuant to its terms. Requiring impervious surface restoration to take place in accordance with Maryland’s Design Manual will ensure some consistency when facilities complete their initial restoration; however, the Manual does not require regular inspection or maintenance of allowed BMPs, and the Draft Permit’s maintenance and inspection requirements need further clarification. Most

28 Draft Permit at 8; Fact Sheet at 23-24. 29 Fact Sheet at 24. 30 See Maryland Stormwater Design Manual available at http://www.mde.state.md.us/programs/Water/StormwaterManagementProgram/MarylandStormwaterDesignManual/ Pages/programs/waterprograms/sedimentandstormwater/stormwater_design/index.aspx (last visited 1/2/13). 31 See infra Section III.B.2. 32 Draft Permit at 8. 33 See definition of stream segment supra in FN 23.

BMPs, such as use of vegetation to reduce flow and increase infiltration, will lose efficacy if permittees do not actively maintain and inspect them over time.

The Draft Permit’s Technology-Based Effluent Limits (TBELs) do require permittees to “maintain all … measures used to restore impervious surfaces.”34 The final permit must retain this requirement, which makes the restoration requirement an enforceable effluent limit. However, the final permit should also include more detail on the inspections and upkeep required for specific practices and BMPs described in the Design Manual, and should require permittees to include maintenance activities in their Restoration Plans, for both on-site and off-site restoration practices. For off-site practices on property not owned by the permittee, the final permit should require an easement or equivalent mechanism to allow for continued upkeep and maintenance throughout the permit term and beyond. Furthermore, the permit should require that maintenance of all on-site control measures be reflected in the permittee’s annual report.

Moreover, the Permit should not allow MS4s to “double count” impervious restoration done pursuant to this permit toward their MS4 permit restoration requirement. The Draft Permit effectively makes clear that impervious surface restoration is a baseline permit requirement and will not generate pollution credits. However, it goes on to state that restoration “shall be counted within the local jurisdiction as restored impervious surface.” 35 The final permit should clarify that “counting” reductions within the local jurisdiction as restored surface does not allow municipalities to double-count industrial reductions as part of their required 20 percent MS4 permit restoration requirements.

Maryland’s MS4 permits require localities to establish their restoration baselines according to MDE Guidance. 36 This Guidance makes clear that although industrial sites are part of the same storm drain system, “industrial facilities are regulated under other NPDES stormwater permits and the storm drain systems in these entities may be excluded from a locality's responsibility.” 37 Allowing localities to opt out of responsibility but take credit for industrial site improvements would undermine the effectiveness of Maryland’s MS4 and industrial stormwater programs and reduce transparency and accountability as Maryland seeks to meet its Chesapeake Bay TMDL goals.

In addition to clarifying that local governments cannot double-count restoration by industrial facilities, the final permit should better explain the role local jurisdictions will play and the procedures that must be followed with regard to off-site restoration activities. The Draft

34 Draft Permit at 11. 35 Draft Permit at 9. 36 MDE, Accounting for Stormwater Wasteload Allocations and Impervious Areas Treated, Guidance for National Pollutant Discharge Elimination System Stormwater Permits (June 2011), available at http://www.mde.state.md.us/programs/Water/StormwaterManagementProgram/Documents/NPDES%20Draft%20G uidance%206_14.pdf . 37 Id . at 3.

Permit indicates that general permit holders will make an “agreement” with the local jurisdiction, 38 but does not set out any requirements for local oversight or approval of restoration sites. The final permit should clarify how permittees must obtain approval for off-site restoration, the obligations of local governments that enter restoration agreements for public property, how the local governments should determine whether on-site restoration is “feasible,” and the scope of the oversight role retained by MDE.

B. Effluent Limits

1. Technology based effluent limits

The Draft Permit fails to establish numeric TBELs for any industry sector or subsector 39 because MDE claims that it is infeasible to set such limits. 40 However, other states have found it feasible to set numeric TBELs for certain sectors, and MDE should do the same. Specifically, the Oregon Department of Environmental Quality has set numeric TBELs for runoff from asphalt emulsion facilities, material storage piles at cement manufacturing facilities, hazardous waste landfills, non-hazardous waste landfills, and coal storage piles at steam electric generating facilities. 41 Thus, it is feasible to set numeric TBELs for stormwater discharges from these industries, and MDE should do so in the final permit. EPA recommends numeric TBELs whenever feasible, as they provide objective and enforceable standards 42 completely lacking in the Draft Permit.

MDE should expand the Permit section titled “Minimize Exposure” to include other materials stored by industrial facilities that contribute to stormwater discharges. It is unclear why the requirement to store materials under cover on an impervious surface is limited to storage of solid chemical products, chemical solutions, paints, oils, solvents, acids, caustic solutions and waste materials. 43 This requirement should apply to all stored industrial materials, including coal piles, which can discharge several toxic pollutants, such as arsenic, iron and lead, into receiving waterways.44

38 Draft Permit at 9. 39 Draft Permit at 10. 40 Fact Sheet at 26-28. 41 Oregon Department of Environmental Quality, General National Discharge Elimination System Stormwater Discharge Permit (July 1, 2012) at 12, 26, 28, 46, 60, 70, available at http://www.deq.state.or.us/wq/wqpermit/docs/general/npdes1200z/Final1200Zpermit.pdf (last visited 1/1/13). 42 See EPA, supra note 8. 43 See Draft Permit at 10. 44 See EPA website, available at http://www.epa.gov/cleanenergy/energy-and-you/affect/coal.html (“... if rain falls on coal stored in piles outside the power plant, the water that runs off these piles can flush heavy metals from the coal, such as arsenic and lead, into nearby bodies of water.”); see Angie M. Cook, et. al., Environmental Impacts from Acid Leachate Derived from Coal-Storage Piles Upon Groundwater, 135 WATER , AIR AND SOIL POLLUTION 371 (2002), available at http://link.springer.com/content/pdf/10.1023%2FA%3A1014750225629 ; see also Davis,

We appreciate that MDE has included requirements for maintenance of control measures, as maintenance is essential to ensure the ongoing efficacy of these practices. However, the Draft Permit only requires that inspection, testing, maintenance and repair of equipment and systems must be performed “regularly,” which is too vague to provide sufficient instruction to regulated industries and too vague for MDE and citizens to adequately enforce. 45 MDE should require that these activities be performed at specified intervals, such as quarterly, along with the facilities’ quarterly visual inspections.46 As discussed above in Section III.A, MDE should also clarify that control measures used to meet the restoration requirement are enforceable effluent limitations, as the maintenance section appears to treat the two separately. 47

The Draft Permit requires that certain erosion and sediment controls, specifically flow velocity dissipation devices, be placed at discharge locations and within outfall channels “where necessary to reduce erosion and/or settle out pollutants.” 48 MDE should define where it is necessary to place these devices or provide guidance with respect to how this determination is to be made. Without such definition, there is no assurance that the use of flow velocity dissipation devices, which is the only specific measure identified in the Draft Permit for the control of erosion and sediment, will be done effectively or that this requirement can be enforced.

We appreciate that the Draft Permit requires that salt piles and piles containing salt must be covered or enclosed. However, this requirement is seriously weakened by the exemption allowing piles to remain unenclosed and uncovered if the pile is not discharging stormwater or its stormwater discharges are authorized under another NPDES or state discharge permit. 49 Runoff from salt piles and piles containing salt leads to chloride levels in receiving waters that are often unhealthy, and can be toxic, for aquatic organisms. 50 The final permit should require that all such piles be covered or enclosed, regardless of whether their stormwater discharges are authorized under another permit. Additionally, it is extremely unlikely that any uncovered, unenclosed salt pile is not discharging any stormwater. 51 For this reason, the final permit should not include any exemption for facilities that claim zero discharge from salt piles and piles containing salt.

Edward C. and William J. Boegly, Jr., A Review of Water Quality Issues Associated with Coal Storage, 10 JOURNAL OF ENVIRONMENTAL QUALITY 2 (1981), available at https://www.soils.org/publications/jeq/pdfs/10/2/JEQ0100020127 . 45 Draft Permit at 11. 46 Draft Permit at 21. 47 See Section III.A supra . 48 Draft Permit at 12. 49 Draft Permit at 12. 50 Environment Canada & Health Canada, Priority Substances List Assessment Report, Road Salts (2001) at 25- 31,81-84, available at http://www.hc-sc.gc.ca/ewh-semt/alt_formats/hecs-sesc/pdf/pubs/contaminants/psl2- lsp2/road_salt_sels_voirie/road_salt_sels_voirie-eng.pdf . 51 See id. at 27-29.

We commend MDE on the section of the Draft Permit prohibiting the discharge of waste, garbage and floatable debris to receiving waters. 52 This is especially important in watersheds impaired for trash and debris, such as the Baltimore Harbor and Anacostia River, and will be necessary for compliance with their respective trash TMDLs.

MDE should clarify that the section titled “Dust Generation and Vehicle Tracking of Industrial Materials” applies to dust generated by the storage and shipment of coal and other minerals. 53 MDE should further clarify that minimizing dust generation from these sources requires covering the source, including coal piles and truck or freight shipments of coal, or enclosing the source.

2. Water Quality Based Effluent Limits

The Draft Permit prohibits violation of WQS, which is an important and common sense improvement from the 2002 General Permit. 54 However, MDE should also explicitly require that all discharges comply with any applicable WLAs from all applicable TMDLs (both the Bay TMDL and local TMDLs). Industrial stormwater discharges are taken into account when developing TMDLs and this permit is the mechanism necessary to make those allocations enforceable. If the 20 percent restoration requirement is estimated to bring the industrial stormwater sector under its WLA for the Bay TMDL, then the final permit needs to state that explicitly.

NPDES permits are the enforcement mechanism for TMDLs; without enforcement through permits, TMDLs are nothing more than theoretical and ineffective guidance. States must ensure that dischargers achieve pollutant reductions needed to meet TMDL wasteload allocations, through NPDES permit and water quality plans. 55 Accordingly, CWA regulations require that effluent limits in NPDES permits “are consistent with the assumptions and requirements of any available wasteload allocation….” 56

TMDLs are founded on the assumption and requirement that point source WLAs will be enforced through NPDES permits. Thus, the final permit must require achievement of applicable WLAs. 57 The Draft Permit currently makes no mention of how TMDL WLAs will be achieved

52 Draft Permit at 13. 53 Id. 54 Id. 55 33 U.S.C. 1313(d), (e). 56 40 C.F.R. § 122.44(d)(1)(vii)(B) (applicable to Maryland’s ongoing administration of its NPDES program under 40 C.F.R. § 123.25). 57 See, e.g. Chesapeake Bay TMDL at 7-1 (stating that for point source WLAs in a TMDL, “the existence of the National Pollutant Discharge Elimination System (NPDES) regulatory program and the issuance of an NPDES permit provide the reasonable assurance that the WLAs in the TMDL will be achieved .”) (Emphasis added.)

15 by the industrial stormwater sector. MDE must therefore revise the Permit to ensure that WLAs are attained and to fully comport with minimum legal requirements.

If MDE intends that the 20 percent restoration requirement will serve as a surrogate effluent limit for meeting TMDL WLAs, the final permit must ensure that such surrogate limits have a clear mandatory link to the underlying WLAs. First, the final permit must require “TMDL implementation plans,” that are designed at the outset to achieve TMDL WLAs, rather than an open-ended “restoration plan.” This is not a matter of mere semantics; the Draft Permit’s requirement of “restoration plans” is ambiguous and creates enforcement uncertainty, by obscuring the mandatory nature of the legal requirement to achieve TMDL WLAs.

The final permit must also incorporate all applicable WLAs for the industrial sector by reference, and expressly require attainment of the WLAs and any associated Implementation Plans for such TMDL WLAs. This is the surest, most straightforward way to ensure that the permit’s effluent limits “are consistent with the assumptions and requirements of any available wasteload allocation.” 58

Furthermore, MDE must strengthen the language of the Draft Permit relating to the water quality based effluent limits (WQBELs) in order to require dischargers to identify and correct violations through the non-numeric WQBELs. For instance, the requirements to take, document, and report corrective action should be triggered by a discharge that causes or contributes to an exceedance of the applicable WQS, and not by either the permittees “becom[ing] aware” of that exceedance or MDE’s determination that an exceedance has occurred. 59 The burden of monitoring compliance with the WQS should be placed on the permittee and not on MDE or another party to inform the permittee that discharges are causing or contributing to an exceedance of WQS.

Additionally, the final permit should clarify that the corrective actions required under the WQBELs section are those required under Part IV of the Permit. MDE should revise Part III(B)(2)(a) of the Draft Permit to specify “Corrective Action as identified in Part IV of this Permit” so that the requirements of Part IV are clearly triggered.

For discharges to impaired waters, it is crucial that the final permit include numeric WQBELs in order to prevent further degradation of these waters. The Washington Department of Ecology set such numeric limits in its Industrial Stormwater General Permit for turbidity, pH, fecal coliform bacteria, TSS, phosphorus, ammonia, copper, lead, mercury, zinc, and pentachloropheol. 60 We recommend that MDE do the same in the final permit. Additionally, the

58 40 C.F.R. § 122.44(d)(1)(vii)(B). 59 Id. 60 State of Washington Department of Ecology, Industrial Stormwater General Permit (May 16, 2012) at 32, available at http://www.ecy.wa.gov/programs/wq/stormwater/industrial/permitdocs/iswgpfinal051612.pdf

Draft Permit puts far too much burden on MDE to determine whether to impose monitoring, limits, and/or controls on dischargers to impaired waters, and what those requirements might be. 61 The final permit should specifically identify the additional monitoring, limits, and/or control requirements that will apply to facilities discharging to impaired waters.

C. SWPPP Requirements

The SWPPP requirements in the Draft Permit represent a significant improvement from Maryland’s current General Permit, and we support the provision that this permit supersedes the SWPPP requirements of industry-specific stormwater general permits and the stormwater section of individual industrial permits so these facilities cannot continue following inadequate SWPPPs. However, the final permit should explicitly require SWPPPs to describe best available technology economically achievable (BAT)62 and best conventional pollutant control technology (BCT)63 and it should require facilities to implement their SWPPPs. The final permit should require all SWPPPs to specifically describe which control measures are used to meet each applicable TBEL listed in Section III.B.1.b. and Appendix D, and each applicable WQBEL in Section III.B.2.

Under the “site description” section, requirement “xi” should also require the permittee to include the latitude and longitude locations of each discharge point.64

The final permit should also require more robust descriptions of inspection and monitoring practices, including monitoring and inspection schedules for each outfall, the parameters to be monitored at each location, any numeric limits applicable to discharges from each outfall, and sample collection and monitoring procedures to be included in each SWPPP.65 The Draft Permit only requires SWPPPs to include the person responsible for inspections and “items to be covered by the inspection,” 66 which does not include sufficient detail and will result in vague SWPPPs that cannot be used to determine how a facility conducts its inspections.

MDE should also require facilities seeking to use the substantially identical outfall exception to benchmark monitoring to include studies or monitoring results indicating the

61 Id. 62 Best Available Technology Economically Achievable (BAT) is defined at Section 304(b)(2) of the CWA 63 Best Conventional Pollutant Control Technology (BCT) is defined at Section 304(b)(4) of the CWA 64 Draft Permit at 15; See State of Washington General Permit NOI available at https://fortress.wa.gov/ecy/publications/publications/ecy02084.pdf (last visited 1/1/13). 65 See EPA, Multi-Sector General Permit for Stormwater Discharges Associated with Industrial Activity (MSGP) (Sept. 29, 2008) at 29-30, available at http://cfpub.epa.gov/npdes/stormwater/msgp.cfm [hereinafter EPA MSGP]. 66 Draft Permit at 17.

17 outfalls have similar effluents in the SWPPP, rather than only requiring the permittee to state why they expect similar effluents. 67

The documentation requirements for SWPPPs in the Draft Permit are also inadequate. The Draft Permit requires SWPPP modifications when necessary to address triggering conditions for corrective actions or when control measures are not adequate to meet effluent limits, but does not require permittees to submit the amended SWPPPs to MDE. 68 “Encouraging” facilities to post current SWPPPs online is similarly inadequate.

Moreover, the Draft Permit does not require facilities to submit inspection, monitoring, or certification records to MDE, but rather only requires permittees to keep them on-site with the up-to-date SWPPPs. 69 It is unclear how MDE and citizens will be able to effectively enforce industrial stormwater permits when the agency and the public may only have immediate access to an outdated SWPPP and no inspection or monitoring reports. 70

IV. Corrective Actions

As discussed above in the context of the WQBELs, it is important that the burden to comply with WQS be placed upon the permittee rather than placing a burden on MDE or another party to inform the permittee of discharges that cause exceedances of the WQS. Therefore, the third condition that triggers the duty to take corrective action (Part IV.A.3) 71 should be replaced with the following language: “if a discharge causes or contributes to a violation of applicable water quality standards.” This places the burden properly on the permittee as well as providing the permittee with an incentive to make itself aware of the effect that its discharges has on the attainment of WQS.

Additionally, the Draft Permit must be revised to achieve consistency among the deadlines for the following: (1) corrective action of conditions listed under Part IV.A;72 (2) corrective action arising from a routine facility inspection;73 and (3) corrective action after a comprehensive site compliance evaluation. 74 The conditions listed under Part IV.A include problems arising from a routine facility inspection or a “comprehensive site inspection,” which is presumably the same thing as a comprehensive site compliance evaluation. Part IV.C requires that those conditions be addressed “before the next storm event if possible or as soon as

67 Id . 68 Draft Permit at 17-18. 69 Id . at 18. 70 See infra Section V.C. 71 Draft Permit at 19. 72 Draft Permit Part IV.A at 19. 73 Draft Permit Part V.A.1 at 20. 74 Draft Permit Part V.A.2.b at 21.

18 practicable following that storm event.” 75 However, Part V establishes different deadlines for these same corrective actions.76 The final permit should require that corrective action under all three parts be taken within 30 days. In the alternative, the deadline should be “before the next storm event if possible, or as soon as possible following that storm event.” Allowing corrective action to be taken “as soon as practicable” following a storm event makes this requirement too vague to be enforceable. The final permit must also clarify whether the “comprehensive site inspection” identified in condition 5 under Part IV.C is the same as a comprehensive site compliance evaluation discussed in Part V.A.2.

We support the requirement that the permittee document the condition triggering the need for corrective action review, the problem identified, and the date on which the problem was identified. 77 However, merely including this documentation as part of the annual report, which is not even submitted to MDE, does not provide MDE with any notice of the problems at the facility and the actions taken to correct them. 78 A permittee could be discharging in a way that violates the Permit indefinitely without MDE becoming aware of the problem, which, under the terms of the Draft Permit, would likely occur only as a result of an MDE site inspection. Not only should the final permit require that annual reports and associated documentation are submitted to MDE, but it should also require the permittee to inform MDE as soon as possible after corrective action is taken, certainly within 30 days 79 , in order to evaluate the permittee’s compliance and ensure that the corrective action taken is sufficient to remedy the problem.

Lastly, we support that the Draft Permit clearly makes it an additional permit violation to fail to take corrective action following an initial permit violation. 80

75 Draft Permit at 19. 76 Draft Permit Part V.A.1 (corrective action arising out of a routine facility inspection must be taken no later than the end of the next quarterly inspection) & Part V.A.2.b (corrective action following a comprehensive site compliance evaluation must be taken within 30 days) at 20-21. 77 Draft Permit at 20. 78 Id. 79 This requirement is dependent on MDE also requiring that the permittee take the corrective action within 30 days or before the next storm event. See Sections IV and V.A. of these comments. Otherwise the permittee could take an extended period of time to perform the corrective action, and MDE’s notification of that action will not be timely. 80 Id.

V. Inspections, Monitoring, and Reporting

The Draft Permit falls short by establishing weak site inspection and benchmark monitoring requirements.

A. Site Inspections and Evaluations

As noted previously, the timeline for completing corrective actions arising out of routine inspections in Section V.A.1. is inconsistent with the timeline in Section IV.C., and MDE should adopt a consistent requirement throughout the final permit to complete corrective actions within 30 days, or, in the alternative, before the next storm event when possible or as soon as possible thereafter.

The Draft Permit’s list of annual report requirements omits corrective action reports; Sections V.A.2.a. and b. should cross-reference this requirement in Section IV.D.3. or restate the requirement to include documentation of triggering conditions, problems identified, corrective actions required, dates when corrective actions were initiated and completed, and SWPPP modifications required. Moreover, the inclusion of an annual report summarizing actions taken in the previous year does not supplant MDE’s need for timely reporting of conditions triggering corrective actions as these conditions occur. Permittees should be required to submit reports to MDE within 30 days after corrective action is taken.

We support the Draft Permit’s quarterly visual inspection and benchmark monitoring requirements that permittees take samples from each outfall within the first 30 minutes of the storm event. However, MDE should require facilities to conduct this sampling consistent with 40 CFR § 36, or at least require those facilities discharging stormwater into impaired waters to conduct this sampling consistent with 40 CFR § 36 for the pollutant(s) causing the impairment(s). 81 The final permit should also incorporate the explanation of “representative sampling” from Section V.C.6. into the quarterly inspection section by reference.

B. Benchmarks

We have serious concerns about the lack of and weakness of the benchmarks included in the Draft Permit as compared to those in EPA’s MSGP. EPA’s MSGP establishes benchmarks for far more industry sectors and for more parameters, and at the minimum MDE should require benchmark monitoring for all of the industry sectors in the MSGP.82 Out of 26 industry sectors covered by the Draft Permit, MDE has established benchmarks for only 3 sectors and 1

81 See EPA MSGP at 39. 82 MDE should not eliminate any industrial sector from the benchmark requirements without full justification in the record as to why that industry does not necessitate these requirements. Currently there is no such justification in the record; therefore no industrial sectors should be eliminated. See supra Introduction, Section IV regarding slaughterhouses.

20 subsector. 83 Conversely, EPA has established benchmarks for 19 sectors. 84 Among the industry sectors that escape benchmark monitoring under the Draft Permit are several sectors that were shown, in EPA’s “Review of Discharge Monitoring Report Data from the 2000 NPDES industrial Stormwater Permit Program,” to exceed benchmarks more than half of the time at facilities that did not report no discharge. These include Sector E (Glass, Clay, Cement, Concrete and Gypsum Product Manufacturing), Sector L (Landfill and Landfill Application), and Sector O (Steam Electric Generating Facilities), all of which exceeded benchmarks for iron and/or TSS. 85

To compound the problem, MDE includes benchmarks for fewer than half of the parameters for which EPA has applied benchmarks. EPA has applied benchmarks for a total of 25 parameters, and the Draft Permit includes benchmarks for only 9 of those parameters. 86 While we appreciate that MDE is using more stringent benchmarks than EPA for zinc and lead, this is not sufficient to compensate for the total lack of any benchmarks in the Draft Permit for 14 out of 25 parameters covered by the benchmarks in EPA’s MSGP.

MDE relies on a single NAS study to support its decision to limit benchmark monitoring requirements. 87 However, this study actually recommended better monitoring methods and more BMP data. Remaining uncertainty as to the value of benchmark monitoring does not support eliminating these requirements in the majority of sectors, and EPA clearly came to a very different conclusion about the importance of benchmark monitoring when determining what requirements to include in its MSGP.

Even where MDE does require benchmark monitoring, the requirements are inadequate. Although benchmarks are not effluent limits, the final permit should reiterate that any benchmark exceedance that also causes or contributes to a violation of WQS is a permit violation. And while we support MDE’s application of benchmark monitoring requirements to co-located industries as well as the primary industry at a site, this does not make up for the tiny number of industry sectors subject to benchmarks in the Draft Permit.

We support the Draft Permit’s requirement to follow the 40 CFR § 136 analytical methods when collecting and analyzing benchmark samples. However, this requirement would have a far greater impact on data quality and would better inform MDE of the nature of industrial

83 Fact Sheet at 15. 84 EPA MSGP at 47-139. 85 Memorandum from Jack Faulk, Tetratech Inc, to Jon Harcum and Jim Collins, Review of Discharge Monitoring Report data from the MSGP 2000 (January 26, 2005), available as part of EPA Rulemaking Docket EPA–HQ–OW– 2005–0007. 86 Fact Sheet at 63. 87 Fact Sheet at 14.

21 stormwater discharges and the compliance status of specific facilities if more sectors were required to conduct benchmark monitoring in the first place.

Other aspects of the limited benchmark monitoring in the Draft Permit fall short and will limit available discharge information even further. For example, allowing permittees to stop monitoring if they do not violate a benchmark after 4 averaged quarters does not make sense given the sporadic nature of stormwater discharges and possible changes in the activity or conditions at a site over a 5 (or likely more) year permit term. The final permit should not include any provisions allowing facilities to stop conducting benchmark monitoring during their permit term.

The Draft Permit also illegally allows a permittee to avoid taking corrective action or performing additional monitoring if it determines that a benchmark exceedance is due to natural background pollutant levels occurring in soils and groundwater. 88 Under the CWA, any discharge of any pollutant to navigable waters from a point source is prohibited without authorization under a NPDES permit.89 All structures by which stormwater would be channeled and conveyed into navigable waters are covered by the definition of “point source.” 90 Therefore, a permittee is responsible for all of the pollutants discharged from structures channeling stormwater, including background pollutants from soils and groundwater, and MDE may not exempt discharges of these pollutants from permit requirements.

In the alternative, MDE must at least clarify its exemption from benchmark monitoring and corrective actions for exceedances due solely to pollutants “in the natural background.” 91 The final permit should continue to exclude legacy pollutants and run-on from other sources from its definition of “natural background pollutants,” but should further define what a permittee must document to prove that natural background levels are responsible for monitoring results. The current language does not go as far as EPA in its MSGP, which requires facilities claiming the exception to keep the following documentation onsite with their SWPPP:

• Map showing the reference site location in relation to facility along with available land cover information • Reference site and test site elevation • Available geology and soil information for reference and test sites • Photographs showing site vegetation • Site reconnaissance survey data regarding presence of roads, outfalls, or other human- made structures

88 Draft Permit at 23. 89 42 U.S.C. §§1311(a), 1362(12). 90 42 U.S.C. § 1362(14) (defining “point source” as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel [or] conduit . . . from which pollutants are or may be discharged.”) 91 Draft Permit at 23.

• Records from relevant state or federal agencies indicating no known mining, forestry, or other human activities upstream of the proposed reference site • The background concentration of a pollutant in runoff from a non-human impacted reference site in the same watershed should be determined by evaluation of ambient monitoring data or by using information from a peer-reviewed publication or a local, state, or federal government publication specific to runoff or stormwater in the immediate region. Studies that are in other geographic areas, or are based on clearly different topographies or soils, are not eligible. When no data are available, and there are no known sources of the pollutant, the background concentration should be assumed to be zero. 92

MDE should require the same documentation, and establish the same presumption that background pollutant levels are zero until a permittee demonstrates elevated background levels with relevant data and studies.

Lastly, the second sentence of subsection B (“Industry Specific Benchmarks Monitoring Requirements”) 93 references the effluent limitations in “Part II.B.1” of the Permit. MDE should revise that reference to “Part III.B” of the Permit, which includes all effluent limits. Subsection B.3.b.ii of the Draft Permit 94 also incorrectly references the water quality based effluent limitations in “Part II” of the Permit; the WQBELs are actually listed in Part III.B of the Permit.

C. Reporting

The Draft Permit references “Documentation” in Section III and “Reporting” in Section V, however fails to include any real reporting requirements. 95 The Draft Permit also fails to require facilities to submit their annual reports, including all inspection, monitoring, or certification records, to MDE, but rather only requires permittees to keep them on-site with the up-to-date SWPPPs. 96 It is unclear how MDE and citizens will be able to effectively enforce the Permit when the agency and the public may only have immediate access to an outdated SWPPP and no inspection or monitoring reports.

Also, as mentioned above, it is imperative that MDE require permittees to report information on corrective actions to MDE in a timely manner. Currently this documentation is merely included as part of the annual report, which is not submitted to MDE, and therefore does not provide MDE with any notice of the problems at the facility and the actions taken to correct

92 EPA, Multi-Sector General Permit for Stormwater Discharges Associated with Industrial Activity (MSGP) – Fact Sheet at 108-09. 93 Draft Permit at 21. 94 Draft Permit at 22. 95 Draft Permit at 18, 26. 96 Draft Permit at 18.

23 them. 97 A permittee could be discharging in a way that violates the Permit indefinitely without MDE becoming aware of the problem, which, under the terms of the Draft Permit, would likely occur only as a result of an MDE site inspection. Not only should the final permit require that annual reports and associated documentation are submitted to MDE, but it should also require the permittee to inform MDE as soon as possible after corrective action is taken, certainly within 30 days, in order to evaluate the permittee’s compliance and ensure that the corrective action taken is sufficient to remedy the problem.

Finally, MDE should commit to report all benchmark Discharge Monitoring Report (DMR) data to EPA’s Enforcement and Compliance History Online (ECHO) database, rather than only requiring facilities to report data to NetDMR. NetDMR is not publicly accessible or searchable like ECHO, and making this pollution data – which MDE will already have in electronic form – publicly searchable will improve transparency and better enable citizens to monitor and enforce permits.

VI. Appendices

MDE should make two revisions to the appendices to the Permit. First, MDE should revise Appendix B (Visual Monitoring Form) to include fields for more specific information on what procedures were followed during the monitoring. These fields should include what type of container the sample was collected in, whether the collector wore gloves during sample collection, etc.

Second, MDE should revise Appendix F (Restoration Update Form) to include the specific location of all restoration activities (i.e. whether on-site or off-site, the receiving stream segment, etc.).

Conclusion

Overall the Draft Permit is a significant improvement over the current permit, but the above-recommended changes are necessary to ensure that the good intentions of MDE result in real reductions in industrial stormwater pollution in Maryland. MDE must strengthen the requirements of the Permit to include stronger effluent limits and increased reporting, transparency, monitoring, and maintenance so that the large financial investment in implementation of this permit by both the private sector and taxpayers will not be wasted. Making these revisions is imperative if the Permit will effectively lead to water quality improvements in Maryland’s local waterways and the greater Chesapeake Bay.

97 Draft Permit at 20.

Thank you in advance for your consideration of our comments. Please do not hesitate to contact us at the below contact information to discuss these issues further.

Sincerely,

Leah Kelly, Esq. Christine (“Tina”) M. Meyers, Esq. Tarah Heinzen, Esq. Baltimore Harbor WATERKEEPER Environmental Integrity Project Blue Water Baltimore, Inc. 1 Thomas Circle, Suite 900 3545 Belair Road Washington, D.C. 20005 Baltimore, MD 21213 202-263-4448 410-254-1577, x112 [email protected] [email protected] [email protected] On behalf of Blue Water Baltimore On behalf of Blue Water Baltimore and EIP

Mike Bolinder Kathy Phillips Anacostia RIVERKEEPER Assateague COASTKEEPER 515 M Street, SE, #218 Assateague Coastal Trust Washington, D.C. 20003 P.O. Box 731 [email protected] 9931 Old Ocean City Boulevard Berlin, MD 21811 [email protected] Diana Dascalu-Joffe John Long Chesapeake Climate Action Network Clean Bread and Cheese Creek 6930 Carroll Avenue 2408 Plainfield Road Takoma Park, MD 20912 Dundalk, MD 21222 [email protected] [email protected] Dan Smith Theaux M. Le Gardeur Friends of Lower Beaverdam Creek Gunpowder RIVERKEEPER 6019 Inwood Street P.O. Box 156 Cheverly, MD 20785 Monkton, MD 21111 [email protected] [email protected] Drew J. Koslow Rebecca Hammer Choptank RIVERKEEPER Natural Resources Defense Council Midshore Riverkeeper Conservancy 1152 15 th Street NW, Suite 300 23 N. Harrison St. Washington, D.C. 20005 Easton, MD 21601 [email protected] [email protected]

Matt Logan Fred Kelly Potomac RIVERKEEPER Severn RIVERKEEPER 1100 15 th Street NW, 11 th Floor 329 Riverview Trail Washington, DC 20005 Annapolis, MD 21401 [email protected] [email protected]

Chris Trumbauer West/ Rhode RIVERKEEPER 4800 Atwell Street Shady Side, MD 20764 [email protected]

Copies via email only to:

Dr. Robert M. Summers, Md. Secretary of the Environment ( [email protected] ) Jay Sakai, Director, MDE Water Management Administration ( [email protected] ) Paul Hlavinka, MDE Water Management Administration ( [email protected] ) Jeff Corbin, Senior Advisor on Chesapeake Bay Program, U.S. EPA ( [email protected] ) Steve Johnson, Principal Counsel, MDE ( [email protected] ) Erin Fitzsimmons, Special Assistant for the Environment, MD Attorney General’s Office ([email protected] )