City files challenge to takeover of wastewater plant
Baltimore officials asked a judge to put on hold the state takeover of the troubled Back River Wastewater Treatment Plant, calling the move “unfair and politically motivated” in a motion filed Friday.
The motion, filed in Baltimore City Circuit Court, asks for an order declaring the takeover to be unlawful, unreasonable and unnecessary to protect public health. Maryland Secretary of the Environment Ben Grumbles ordered the takeover of the Dundalk facility Sunday, saying “the decline in the proper maintenance and operation of the Plant risks catastrophic failures.” The Maryland Environmental Service was asked to take over the plant immediately.
The move came after MDE issued a warning to the city on March 24 demanding the plant come into compliance with environmental laws within two days. A March 26 inspection of the site revealed it hadn’t made the needed improvements.
In the motion filed Friday, Baltimore officials argued the 48-hour notice was “unreasonably (actually, impossibly) short.”
“While an order that the city come into compliance with its permit might seem a reasonable demand, the secretary’s actions distort both the facts surrounding operations at the plant and the history of the city’s efforts to improve all aspects of Back River,” the motion states.
An inspection report from Back River released last week showed continuing widespread maintenance issues at the city-run facility, all preventing it from adequately treating the sewage flowing in from both the city and Baltimore County. For instance, only half of the necessary primary settling tanks, which are meant to separate out solid waste and fats and oils in the system, were working. Vegetation grew out of tanks open to the outdoors, which state inspectors had ordered be fixed months prior.
Baltimore’s Back River and Patapsco plants already are the subject of lawsuits filed in state court on behalf of the Maryland Department of the Environment in January and in federal court by local nonprofit Blue Water Baltimore over pollution violations. The violations include excessive releases of bacteria and nutrients such as nitrogen and phosphorous, which impair the Chesapeake Bay and its tributaries by stimulating algae growth that robs the water of oxygen and kills marine life.
Inspections began at the plants last year after Blue Water Baltimore’s water sampling flagged concerning bacteria and nutrient levels outside the Patapsco plant in Curtis Bay.
Baltimore officials have acknowledged the Back River facility is in violation of its permits, but in Friday’s motion further questioned the motivation of the state’s takeover, suggesting the timing closely followed a call for the resignation of Grumbles.
On March 23, Del. Robin Grammer Jr. wrote a letter to Gov. Larry Hogan calling for Grumbles’ resignation citing issues at the Back River plant. Grammer, a Republican who represents Baltimore County, posted the letter to his Facebook.
“After months of delay and hostile public questioning of MDE’s enforcement efforts, and mere days after a public call for his resignation, the secretary of MDE has sprung into action and filed an absurd demand for the City to instantaneously come into compliance with its discharge permit,” Baltimore’s motion states. “The secretary knew full well that full compliance would be impossible to manage in 48 hours, but sought to make a highly public demonstration of action with respect to the City,.”
City officials also argued the Maryland Environmental Service, MDE’s chosen operator for Back River, is not in a position to take control of the plant “operationally or from a management perspective.” The takeover could hinder rather than help efforts to fix the plant, the motion argued.
“While MES support is welcomed (and was previously solicited) by the City, so far, despite the MDE Directive, MES has only been able to send about four people to the plant without a schedule or plan as to how MES will staff the plant,” the motion states.
One of the MES employees can only be on site at Back River a couple of times per week, the motion noted.
An MES spokesperson did not respond to a request for comment.
Grumbles said the “urgency and severity” of the situation at Back River required immediate action.
“The most effective way to change the slow-moving discussions was to issue the order, which allowed us to bring in extra support and expertise on a temporary basis from the Maryland Environmental Service,” he said in a statement Friday. “We look forward to real progress and constructive engagement with the City.”
A Department of the Environment spokesman cited an Oct. 14, 2021, letter from Grumbles to Baltimore Mayor Brandon Scott as evidence the city had ample notice of the state’s concerns ahead of the March 24 order.
City officials said in the motion the state’s sudden order to improve the plant or face takeover caught them off guard “because it followed months of cooperation with MDE toward the issuance of a consent decree to govern long-term improvements to the plant.”
The motion states the city and state had a “good faith partnership.”
“Progress has no doubt been frustratingly slow, due in large part to the historic and unprecedented pandemic-induced challenges to staffing and the supply chain,” the motion argued.
In a news release Thursday, Baltimore’s Department of Public Works, which operates the plant, said the city is struggling to compensate for increasing numbers of seasoned staff who are retiring at the Back River facility.
Staffing shortages are further documented in exhibits submitted with the city’s motion. In a letter dated March 3 seeking information from the city, MDE states Baltimore has had trouble recruiting and retaining staff at Back River.
In the summer of 2021, the facility had a job vacancy rate of 25%, the letter notes.