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Is the Maryland Department of the Environment cleaning up its act when it comes to enforcement? | COMMENTARY

Dirty, polluted stormwater that runs off of industrial sites when it rains is a major cause of pollution to Maryland’s streams and rivers, and ultimately to the Chesapeake Bay. Maryland is home to thousands of such industrial sites, all of which are required by law to obtain a stormwater discharge permit from the Maryland Department of the Environment (MDE) to prevent pollution and protect public and environmental health.

Unfortunately, many of these sites do not have a permit. For example, our research in one small area of Anne Arundel County found that only four out of 12 industrial sites possessed a current permit. Of the industrial sites that hold a permit, many are not in compliance with the permit requirements. Between 2017 and 2020, MDE conducted just under 2,000 inspections of permitted sites throughout Maryland and found that more than two-thirds (68%) were violating the terms of their permits. These industrial sites are commonly clustered in urban areas, creating pollution hot spots of runoff that can include heavy metals and other toxins. Such polluted waters threaten the health of those who live nearby, who are more likely to be low income and populated by people of color.

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The problem has been compounded during the Hogan administration thanks to MDE’s failure to impose consequences on violators in the form of fines or penalties. Based on our analysis, MDE’s own data show that by 2020, its efforts to enforce the Clean Water Act had declined by a whopping 77% percent from the average level from 1998 through 2015. In fact, MDE took enforcement action against only six of the more than 1,500 industrial stormwater violations its inspections uncovered between 2017 and 2020.

With no threat of serious sanctions, polluters have no incentive to spend money on cleaning up after themselves. They are free to wait until they are caught, knowing there will be no penalty for violating the law.

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MDE recently filed a lawsuit against Ecology Services, a waste management and recycling company in Anne Arundel County for stormwater pollution violations. The suit asks for over $2.1 million in penalties to cover fines of $10,000 a day for the 213 days in which the company operated without a permit and in violation of its consent order. Before then, the company failed for years to obtain the permit the law requires, and MDE found violations during eight inspections.

It is unclear why MDE is taking such a muscular enforcement stance now, though it gives us reason to be optimistic that the company will be forced to clean up its act. This particular enforcement action is almost certainly due in part to the efforts of a volunteer organization that documented and publicized the industrial site’s harms to the upper part of the Magothy River. With the assistance of the Chesapeake Legal Alliance, the Magothy River Association also filed a notice of intent to sue Ecology Services and kept after the department to take action.

Is MDE finally recognizing its ineffectiveness in enforcing the law in this area? In describing its suit to the press, MDE Secretary Ben Grumbles said, “It’s important to prevent further harm and send a strong signal to all that violations of stormwater pollution will not be tolerated.”

We hope MDE’s actions reflect a change in policy that will lead to more effective efforts to ensure that all companies comply with laws that protect local communities and waterways from pollution.

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If this is the case, then we may see an increase in serious enforcement activity and a resulting reduction in pollution from industrial sites. But if this is just a one-off action and MDE does not follow up with continued strong enforcement measures, its credibility as an enforcement agency will continue to suffer, as will the bay and our local rivers and streams.

Russ Stevenson (rstevenson@chesapeakelegal.org) chairs the board of directors at the Chesapeake Legal Alliance. Katlyn Schmitt (kschmitt@progressivereform.org) is a policy analyst at the Center for Progressive Reform.

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