Maryland Must Take Stronger Steps to Regulate Toxic Stormwater from Industrial Sites to Protect Marylanders and their Waterways
David Flores
May 3, 2021
As Maryland heads into the final stretch of a collective effort to clean up the Chesapeake Bay, it has inexplicably passed over its best opportunity in years to modernize regulation of industrial stormwater — rain and snow that collects toxic pollution as it runs off factories, warehouses, scrap metal dealers, and other industrial sites.
Earlier this year, Maryland released a proposed revision of its general water pollution permit, which limits the type and amount of pollutants that facilities can discharge into public waters and sets monitoring and reporting requirements to protect public and environmental health.
Unfortunately, the state missed an important opportunity to bring stormwater regulation from the last century into the present — but it’s not too late to change course.
The Chesapeake Accountability Project (CAP) — a coalition of clean water advocacy groups including the Center for Progressive Reform — and two dozen partner organizations submitted a comment letter to the Maryland Department of the Environment (MDE) objecting to the draft proposal in its current form and demanding a stronger one. We’re calling on Maryland to correct the proposal’s legal and technical deficiencies and ensure necessary progress toward environmental justice and Bay restoration. We’re also urging MDE to review and resolve public concerns and consult with advocates for environmental justice and local communities before seeking formal public input again.
What is Maryland’s general permit for industrial stormwater?
The U.S. Environmental Protection Agency (EPA) delegates authority to most states to administer the Clean Water Act. In Maryland, MDE grants water pollution permits to individual facilities and to broader pollution dischargers like local governments, construction sites, and industrial sectors.
MDE’s general permit for industrial stormwater covers some 1,200 landfills, chemical plants, auto and scrap metal recyclers, and other facilities across the state. Still, Maryland regulates only a fraction of stormwater discharge from all industrial facilities in the state.
MDE’s permit, like others, largely relies on required pollution control measures instead of numeric limits on the amount of pollution discharged. The required controls are premised on the notion, though unsubstantiated by MDE, that technological practices — proper storage of polluting chemicals, cleanup of spills, and facility maintenance, for example — ensure adequate protection of water quality. To assess the effectiveness of these controls, the general permit also requires periodic discharge monitoring and self-reporting of compliance to MDE regulators.
Unlike most other general permits, however, MDE’s current permit includes at least one numeric pollution limit for certain permit holders. The pollution limit — designed to support Maryland’s commitment to reduce pollution by 2025 to restore the Bay — requires control of stormwater from 20 percent of impervious surfaces. To the dismay of water advocates, MDE is now proposing to roll back this pollution limit, contravening Maryland’s commitment to the Bay and, more immediately, federal law.
How should Maryland revise the general permit for industrial stormwater?
In our analysis of the permit, we found that the industrial sector is likely contributing to water quality violations in Maryland and undermining Marylanders’ health. Indeed, the permit fails to adequately control toxic and hazardous contaminants, threatening public and worker health.
In Baltimore, most (69 percent) industrial stormwater dischargers are located in communities already overburdened by other forms of pollution. Maryland apparently did not consider the impact on these environmental justice communities when it developed its proposed permit — despite state and federal requirements to do so. Adding insult to injury, MDE failed to even consult the state’s environmental justice commission while developing the draft permit.
What are the problems with Maryland’s current permit?
In 2019, the National Research Council found that industrial stormwater permits — like EPA’s own Multi-Sector General Permit (MSGP), after which Maryland’s industrial permit is modeled — aren’t keeping up with rapid and powerful advances in stormwater treatment and monitoring.
Monitoring requirements, for example, fail to adequately characterize and detect pollution impacts and violation of water quality standards. The EPA reissued its MSGP in January, but it did not faithfully adopt all of the Academies’ recommended monitoring reforms (which is no surprise given that the permit was developed during the Trump administration). Maryland’s draft permit, however, falls even shorter than EPA’s, as it would require less frequent sampling and monitor fewer toxic pollutants.
Maryland can do better. Much better.
Discharge monitoring is a fundamental component of water pollution permits. Without this data, regulators, polluters, and the public can’t detect failures in pollution control practices or understand the impact of pollution discharges on water quality and human health.
Where is Maryland falling short?
In 2017, CPR studied Maryland’s monitoring data (what little of it was available) and found that permit violations and other forms of noncompliance are widespread and that pollutants from some facilities and sectors are exceedingly high, indicating substantial violations of required pollution controls. We confirmed this finding in a recent analysis supporting our comment letter.
Over the last three years, MDE found instances of permit noncompliance in the vast majority (76 percent) of its inspections of industrial stormwater permit-holders, but it took formal enforcement actions against a tiny fraction (0.3 percent) of these facilities. MDE’s enforcement policy is lackluster at best, and years of public monitoring and analysis suggest that the permit’s language is not adequately enforceable. As a result, noncompliance and permit violations are routine.
Maryland is also failing to keep pace with our rapidly changing environment. Global climate change is increasing pollution in the Chesapeake Bay and its tributaries. Maryland’s restoration effort is undermined by an additional million pounds of nitrogen pollution attributable to climate change not accounted for in the state’s cleanup plan for 2025.
Because Maryland’s stormwater cleanup plans are premised on precipitation data from the 1990s and earlier, CAP members and our allies worked with Maryland lawmakers this year to pass legislation requiring MDE to update stormwater management standards for the first time in over 20 years. But Maryland must do more to ensure pollution discharges, and practices to control them, account for changing environmental conditions such as increased heat, precipitation, and flooding.
Our June 1, 2020, Comment Letter to U.S. EPA on draft renewal of the Multi-Sector General Permit
