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Baltimore judge rejects Exelon lawsuit over Conowingo Dam cleanup, but other appeals still pending

Debris continues to gather behind the Conowingo Dam.
Debris continues to gather behind the Conowingo Dam. (Matt Button / Aegis Staff / Baltimore Sun Media Group)

A Baltimore Circuit Court judge has rejected a lawsuit filed by Conowingo Dam owner Exelon Corp. against the state of Maryland, saying the company was premature in suing environmental regulators over demands that it do more to reduce pollution flowing into the Chesapeake Bay from the Susquehanna River.

The company can’t go to court to fight permit requirements imposed by the state until it has exhausted its options under Maryland’s administrative appeals statute, Judge Pamela J. White ruled.

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An Exelon appeal to the Maryland Department of the Environment is still pending. So is a companion lawsuit that the Chicago-based company filed in federal court at the same time as the Circuit Court lawsuit.

A month after Maryland environmental regulators demanded the Conowingo Dam's owner do more to help reduce pollution that flows down the Susquehanna River, the company has filed two lawsuits against the state. Exelon Corp. argues it should not be held responsible for pollution it doesn't create.

Gov. Larry Hogan, a Republican who is in the midst of a re-election campaign against Democratic challenger Ben Jealous, nonetheless celebrated White’s decision. Hogan said “historic progress” at improving the Chesapeake Bay’s health could be put at risk “if we do not pursue a comprehensive regional approach to reducing pollution in the Susquehanna River.”

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Maryland environment Secretary Ben Grumbles called the ruling “great news for clean water and a step forward in the restoration of the Chesapeake Bay.”

Exelon officials said they plan to continue to contest the state permit, known as a water quality certification, because it “sets a precedent of assigning sole responsibility for pollution to the Conowingo Dam.”

The Susquehanna is the source of most of the fresh water in upper portions of the Chesapeake. It also carries heavy loads of nutrient and sediment pollution into the bay from across Pennsylvania and, to a lesser extent, New York.

Maryland environmental regulators are requiring the owner of the Conowingo Dam to find a way to limit pollution that flows down the Susquehanna River from reaching the Chesapeake Bay, because the structure is no longer effectively trapping the sediment and nutrients washing down from Pennsylvania.

Much of that pollution has, for decades, been building up against the Conowingo, which stretches across the river about 10 miles north of the upper reaches of the Chesapeake. But the dam has hit its capacity to hold back any more of the pollution, requiring some sort of intervention to prevent the excess from reaching the bay.

Maryland officials have demanded Exelon find a way to solve that problem. They imposed new water quality requirements in a permit that the company needs to secure a renewed federal license to operate the Conowingo.

Exelon officials repeated concerns that the Conowingo doesn’t create the pollutants, and therefore should not carry the entire burden of eliminating them.

“Exelon Generation shares the State of Maryland’s commitment to restoring and sustaining the health of the Chesapeake Bay,” the company said in a statement. “The cleanup of pollution and debris is a basin-wide issue that must be collectively addressed by upstream states, which are the source of the pollution, not the Conowingo Dam which does not produce any pollution or debris.”

Conowingo Dam opens the floodgates that allow sediment, nutrient pollution and trash flowing down from Pennsylvania to reach the Chesapeake Bay. (Kenneth K. Lam/Baltimore Sun video)

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