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MD Prepares Lawsuit Against EPA And PA Over Chesapeake Cleanup Failures

Office of Governor Larry Hogan

In 1983, 1987 and 2000, Maryland, Pennsylvania and the other Chesapeake Bay region states all signed much-heralded agreements to clean up the nation’s largest estuary.

But these agreements all failed to make any progress in the overall health of the Chesapeake Bay for a simple reason: They were purely voluntary, with no enforcement mechanism.

Then, in 2010, the Obama Administration – after being sued – issued a new and revised Bay cleanup plan that everyone praised as being the real breakthrough. For the first time, EPA set firm numeric pollution limits for the states, and threatened to penalize the states that failed to meet the cleanup targets by the deadline of 2025.

For a few years, there was real hope for the Bay’s restoration – despite the stubborn refusal of the Bay’s biggest polluter, Pennsylvania, to stop dumping on its downstream neighbors in Maryland and Virginia.

Then, on January 3, the Trump Administration’s EPA caused an uproar. The Administration’s Chesapeake Bay Program director suddenly announced that the 2010 agreement was, in fact, not enforceable, and was instead just “informational” and “aspirational” – just like all the previous failed bay cleanup agreements.  The Trump EPA would do nothing to crack down on Pennsylvania’s pollution.

Five days later, Maryland Governor Larry Hogan, a Republican, sent a letter to Maryland’s Attorney General, Brian Frosh. Hogan directing Frosh to file a federal lawsuit on behealf of the state of Maryland against both the Republican Trump Administration and Pennsylvania’s Democratic Governor, Tom Wolf, for failing to enforce or follow the 2010 agreement.

“Governor Hogan has underscored the power of partnerships, the use of carrots – but also sticks,” said Maryland’s Secretary of the Environment, Ben Grumbles.  “And EPA, as the interstate umpire, needs to have the courage to use the authorities it has under the Clean Water Act to step up and meet its obligations.”

On January 10, Maryland Senator Chris Van Hollen wrote a letter to the Trump EPA that was signed by Maryland Senator Ben Cardin and 19 other high-ranking elected officials in the Chesapeake region. The lawmakers demanded an explanation of why the administration had ignored court decisions that ruled the 2010 Bay cleanup agreement – also called the Bay Total Maximum Daily Load or TMDL -- was, in fact, legitimate and enforceable.

“Yes, those comments by the Chesapeake Bay coordinator at the EPA set off alarm bells because the TMDL’s were written to be enforceable,” Senator Van Hollen said.

One thing the Trump EPA could and should have done, Van Hollen said, was to force Pennsylvania to modernize its sewage plans to the same level that Maryland has.  While Maryland approved a multibillion dollar “flush tax” to pay for state-of-the-art upgrades to 95 percent of its 67 largest municipal sewage treatment plants, Pennsylvania has only upgraded 4 percent of its 167 largest sewage plants to the highest level.

During the last decade, when Pennsylvania should have been investing more in its bay cleanup, the state instead slashed the funding and staffing for its state Department of Environmental Protection by 15 percent.

The state capital, Harrisburg, released 1.4 billion gallons of raw sewage mixed with stormwater into the Bay’s biggest tributary in 2018 – including from the Pennsylvania governor’s mansion and state house. But EPA did nothing to penalize Pennsylvania for this pollution or force it to fix the combined sewage overflow problem.

Senator Van Hollen said the Trump Administration’s failure to enforce the 2010 bay cleanup agreement makes the environment a critical issue for voters to consider in November.

“If this administration, under this President, is not going to do its job,” Van Hollen said, “then that clearly becomes an important issue for the bay states in the upcoming election.”

Tom Pelton, a national award-winning environmental journalist, has hosted "The Environment in Focus" since 2007. He also works as director of communications for the Environmental Integrity Project, a non-profit organization dedicated to holding polluters and governments accountable to protect public health. From 1997 until 2008, he was a journalist for The Baltimore Sun, where he was twice named one of the best environmental reporters in America by the Society of Environmental Journalists.