Opinion
Civil Action No. 21-cv-03176-LKG
2022-10-12
BLUE WATER BALTIMORE, INC., Plaintiff, v. MAYOR & CITY COUNCIL OF BALTIMORE, Defendant.
Angela Haren, Chesapeake Legal Alliance, Annapolis, MD, Martin R. Siegel, Barley Snyder, York, PA, for Plaintiff. Mary Rosewin Sweeney, Baltimore, MD, Frank Paul Calamita, III, AquaLaw PLC, Richmond, VA, for Defendant.
Angela Haren, Chesapeake Legal Alliance, Annapolis, MD, Martin R. Siegel, Barley Snyder, York, PA, for Plaintiff. Mary Rosewin Sweeney, Baltimore, MD, Frank Paul Calamita, III, AquaLaw PLC, Richmond, VA, for Defendant. MEMORANDUM OPINION AND ORDER LYDIA KAY GRIGGSBY, United States District Judge
I. INTRODUCTION
This case involves a citizen suit for declaratory, injunctive, and other relief against the Mayor and City Council of Baltimore for alleged violations of the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. (the "Clean Water Act") at the Patapsco Wastewater Treatment Plant and the Back River Wastewater Treatment Plant. See generally Compl., ECF No. 1. Plaintiff, Blue Water Baltimore, Inc. ("BWB"), has moved for a preliminary injunction to require defendants to take immediate steps to address "chronic and ongoing" violations of the Clean Water Act at these facilities, pursuant to Fed. R. Civ. P. 65. See generally Pl. Mot., ECF No. 24; Pl. Mem., ECF No. 24-1. The motion is fully briefed. See Def. Resp., ECF No. 25; Pl. Reply, ECF No. 28; Def. Sur-reply, ECF No. 34; Pl. Supp. Br., ECF No. 45; Def. Supp. Br., ECF No. 47.
The Court held evidentiary hearings on BWB's motion on July 20, 2022, and October 11, 2022. See generally July 20, 2022, Hearing Transcript ("Tr."), ECF No. 42; Sept. 13, 2022, Order, ECF No. 48. For the reasons set forth below, the Court DENIES BWB's motion for a preliminary injunction WITHOUT PREJUDICE. II. FACTUAL AND PROCEDURAL BACKGROUND
The Court has received the following evidence in this case. From BWB: The MES' Back River Wastewater Treatment Plant Assessment Report, dated June 6, 2022; Discharge Permits for Back River and Patapsco Wastewater Treatment Plants, dated August 23, 2017; Discharge Monitoring Reports from the EPA's Environmental Compliance History Online Database for July 2019 to January 2022; Baltimore City's Capital Improvement Plan, dated June 30, 2021; a letter from the Maryland Secretary of the Environment to the Mayor of Baltimore, dated October 14, 2021; MDE Reports for Back River and Patapsco for the years 2020-22; the Declaration of Alice Volpitta; the Declaration of Randall Grachek, P.E.; the Baltimore City Wastewater Treatment Plant Corrective Action Plan for the years 2022-24; an MDE Back River Progress Report, dated April 28, 2022; MDE's Directive Regarding Back River, dated March 27, 2022; MDE's Request Letter, dated March 2, 2022; MDE's Bacteria Monitoring Data from April 19, 2022 to May 24, 2022; MDE's Back River Inspection Reports for April 2022 - June 2022; MDE's letter to the Baltimore City Department of Public Works, dated June 17, 2022; the Declaration of Keith Barr; the Second Declaration of Alice Volpitta; the Declaration of Douglas Celmer; the Declaration of Michael S. Myers; Back River's Effluent Data Chart Through June 27, 2022; S & P's Global Ratings for Baltimore Mayor and City Council, dated April 6, 2022; the Declaration of Maryland State Delegate Robin Grammar; the Declaration of Dr. Lora Harris; the Declaration of Dr. Ryan Woodland; the Declaration of Dr. Jeremy Testa; MDE's Memorandum Regarding NPDES Municipal Major Surface Water, dated August 5, 2022; the Patapsco Wastewater Treatment Plant's Flow and Select Lab Data Report for April 1, 2022, to July 31, 2022; and MDE's inspection report for Patapsco, dated September 30, 2022. From the City: Greeley & Hansen's Third Party Engineering Evaluation for Back River, dated June 6, 2022; Greeley & Hansen's Third Party Engineering Evaluation for Patapsco, dated June 6, 2022; a list of contractors servicing Back River and Patapsco; tables summarizing the Department of Public Works' responses to MDE's March 4, 2022 Information Requests; MDE's Order for Back River, dated March 24, 2022; MDE's Progress Report for Back River, dated June 10, 2022; a Consent Order and Reimbursement Agreement for Back River, dated June 22, 2022; MDE's Revised Directive to MES for Back River, dated June 10, 2022; MDE's Press Release, dated June 10, 2022; a status of progress at Back River based on MES and Greeley & Hansen's recommendations, dated June 24, 2022; a status of progress at Patapsco based on Greeley & Hansen's recommendations, dated June 24, 2022; MDE's Statement on Back River, dated April 15, 2022; MDE's Statement on Fish Kill Near Back River, dated March 22, 2022; the Affidavit of Yosef Kebede; the Affidavit of Matthew Garbark; the Affidavit of Al Cassel; a progress report for Back River, dated July 8, 2022; a status report for Back River, dated July 7, 2022; a map of sampling locations near the Plants; bacteria sampling results dated April 2022 to July 2022; a Patapsco Discharge Monitoring Report, dated June 14, 2022; the Second Declaration of Yosef Kebede; the City's Progress Report for Back River, dated September 1, 2022; the City's Progress Report for Patapsco, dated September 1, 2022; the July 2022 Discharge Monitoring Report for Back River; and the July 2022 Discharge Monitoring Report for Patapsco.
The facts recited in this Memorandum Opinion and Order are taken from the complaint ("Compl."); BWB's motion for a preliminary injunction ("Pl. Mot.") and the memorandum in support thereof ("Pl. Mem."); the City's response in opposition to BWB's motion for a preliminary injunction ("Def. Resp."); BWB's supplemental brief in support of its motion ("Pl. Supp. Br.") and the City's responsive supplemental brief ("Def. Supp. Br.").
This case involves a citizen suit for declaratory, injunctive, and other relief against the Mayor and City Council of Baltimore for alleged violations of the Clean Water Act at the Patapsco Wastewater Treatment Plant ("Patapsco") and the Back River Wastewater Treatment Plant ("Back River") (collectively, the "Plants"). See generally Compl. BWB is a 501(c)(3) nonprofit organization dedicated to protecting clean water in the Baltimore, Maryland area. See id. at ¶ 11. Defendants, the Mayor and City Council of Baltimore (collectively, "the City"), are the executive and legislative components of the Baltimore City Government, respectively. See id. at ¶ 18.
The Back River Wastewater Treatment Plant
As background, Back River is located in the Dundalk area of Baltimore County, Maryland and the Plant is subject to a discharge permit issued by the Maryland Department of the Environment ("MDE") that became effective on May 1, 2018 (the "Back River Permit"). Def. Resp. at 4. The Back River Permit imposes effluent limits and conditions on Back River's pollutant levels, including the amount of dissolved oxygen, suspended solids, and nutrients (phosphorus and nitrogen) that can be discharged. See id.
Part III.A. of the Back River Permit requires the City to submit permit monitoring results in the form of discharge monitoring reports ("DMRs") and monthly operating reports ("MORs") that are submitted to MDE using an electronic reporting tool known as "Net DMR." Id. at 5; Pl. Mot. Ex. B at 1-2, ECF No. 24-2. "Depending on the pollutant parameter, most of the effluent limits are expressed as a concentration or mass loading (or both) on a weekly, monthly, seasonal, or annual basis limit, based on the pounds or pollutant concentration discharged." Def. Resp. at 5.
The Patapsco Wastewater Treatment Plant
Patapsco is located on a 69-acre site in the Fairfield area of Baltimore City. Id. Patapsco treats wastewater from an approximately 184 square mile service area, spanning portions of Baltimore City and three adjacent counties, with advanced treatment. Id. Patapsco is rated to treat an average daily flow of up to 73 million gallons per day ("MGD"), and its annual average daily flow ("AADF") was 63 MGD between January 2021 and April 2022. Id. at 5-6.
The City operates Patapsco subject to a discharge permit issued by MDE (the "Patapsco Permit"). See Pl. Mot. Ex. B. Like Back River, the City has implemented facility improvements over the last 20 years to improve the processes for accommodating flow, treating various pollutants of concern, providing enhanced nutrient removal ("ENR"), and complying with the Patapsco Permit. Def. Resp. at 6. Patapsco was upgraded to provide ENR and "began discharging wastewater at ENR standards by December 2018." Id. Like the Back River Permit, the Patapsco Permit contains effluent limitations for a variety of pollutant parameters, expressed as a concentration or mass loading (or both) on a weekly, monthly, seasonal, or annual basis limit, based on the pounds discharged or the concentration. Id.
Performance Of The Plants
Following their upgrades to ENR technology, both Plants discharged low levels of pollutants in 2019 and 2020. Pl. Mem. at 3. But, more recently, the City has faced significant challenges with operation and maintenance at the Plants due to, among other things, a May 2019 ransomware attack, the COVID-19 pandemic, supply chain issues, staffing shortages, inflation, and the retirement or resignation of several of its senior wastewater staff. Id.; see Def. Resp. Ex. 15 at ¶¶ 2-4, ECF No. 25-16; Def. Resp. Ex. 1 at 1-1, ECF No. 25-2; Def. Resp. Ex. 2 at 1-1, ECF No. 25-3. As a result, the Plants have faced operational challenges that have led to failing equipment and treatment processes, thereby leading to permit excursions. Def. Resp. at 6.
The City believes that the retirement of key senior managers, along with an acute shortage of operators, among other issues, caused the Plants' operators to "fall further and further behind." Id. at 6-7. But, the City maintains that addressing the Plants' solids inventory—which it contends is fully underway at both Plants—will facilitate a prompt return to permit compliance. Id. at 7; see also Def. Mot. Ex. 16 at ¶¶ 5-6, ECF No. 25-17.
During the pandemic, the City's Department of Public Works altered its operations to prevent the virus from spreading among plant staff. Def. Resp. at 7. Nonetheless, the City experienced a high rate of COVID-19 infections. See id. And so, plant managers at Back River quarantined entire sections of employees multiple times, which strained personnel. Def. Resp. Ex. 15 at ¶ 3. In addition, plant managers utilized skeleton crews to prevent the virus from spreading among staff and to protect against widespread illness among employees necessary to operate the facilities. See id. Crews were also separated to prevent cross-contamination of staff members working different shifts. See id.
The City also acknowledges that facility inspections by MDE in May and June of 2021 noted that the Plants were failing to consistently meet the final effluent standards of their permits for total suspended solids ("TSS"), biological oxygen demand ("BOD"), total nitrogen ("TN"), and total phosphorous ("TP"). Def. Resp. at 8; see Def. Resp. Ex. 1 at 1-1; Def. Resp. Ex. 2 at 1-1. But, the City contends that it took numerous steps in 2021 in response to declining performance at the Plants to address these concerns. See Def. Resp. at 8.
Notably, the City states that the director of its Department of Public Works: (1) instituted enterprise-wide changes to facilitate responsive actions; (2) executed emergency procurement authorizations to start addressing staffing gaps and equipment and parts needs; (3) procured contract service support; (4) produced a strategic plan to address the violations; (5) instituted and staffed an enterprise compliance department (the "Environmental Regulatory Compliance Section") to ensure quality assurance; (6) mandated a full assessment via a gap analysis; (7) raised and invested millions of dollars in remediation of the Plants; and (8) began implementing those improvements within the constraints imposed by the pandemic. Id. And so, the City contends that it has spent tens of millions of dollars on consultants and emergency improvements on both Plants during the past year. Def. Resp. at 8.
Intervention By MDE
On January 21, 2022, MDE filed an enforcement action against the City in the Circuit Court of Baltimore City regarding alleged violations at Patapsco and Back River. See generally Pl. Mot. Ex. J. Thereafter, in October of 2021, the City began working closely with MDE to address problems with the performance of the Plants, with the goal of entering into a consent decree with MDE that would incorporate a binding schedule of improvements designed to return the Plants to compliance. Def. Resp. at 9.
Since then, the City has provided biweekly briefings to MDE and has regularly updated progress reports regarding the Plants. Id.; see Def. Resp. Ex. 14 at ¶ 4. The City has also hired consulting firms to comprehensively assist with operations, maintenance, and repairs at both Plants. Id.; see also Def. Resp. Ex. 3, ECF No. 25-4.
While performance at the Plants improved by late 2021, the City acknowledges that problems with solids handling resulted in declining performance at the Plants in 2022. Def. Resp. at 9; see Def. Resp. Ex. 14 at ¶ 4. And so, MDE has directed the City to provide it with more than 30 separate submittals on staffing, equipment status, maintenance needs, repair and replacement needs and costs, schedules, capital projects, and other topics. Def. Resp. at 10; Pl. Mot. Ex. N at 1-8, ECF N. 24-8. MDE also directed the City to:
Within 90 days, provide the Department with a third-party certified engineering evaluation and report for the [plants'] operation and equipment. The report shall include a comprehensive list of needed improvements, ranked by their impact on compliance with discharge permit effluent limits.Pl. Mot. Ex. N.
On March 24, 2022, the Secretary of MDE ordered the City to operate Back River in compliance with all terms of the Back River Permit within 48 hours. Def. Resp. at 10-11. That deadline was not met, and so the Secretary issued a directive on March 27, 2022, to the Maryland Environmental Service ("MES"), instructing MES to, among other things, provide staff at Back River and prepare an "evaluation and assessment of the Back River WWTP's operation, maintenance, staffing, and equipment and, by June 6, 2022, to submit a report to the Department of the Service's findings and recommendations, including a comprehensive list of needed improvements, ranked by their impact on compliance with discharge permit effluent limitations." Def. Resp. at 11; see Pl. Mot. Ex. M at ¶ 10, ECF No. 24-8. MES staff have been present at Back River since March 28, 2022. Def. Resp. at 11.
Recent Conditions At The Plants
MES' June 6, 2022, report on Back River concluded that the issues at the Plant:
are not insurmountable. With a renewed sense of urgency, a focus from city leadership, we can quickly bring the Back River WWTP back into compliance, and—together—do our part to protect the waters of our city, county, and state.Pl. Mot. Ex. A at 49, ECF No. 24-2. And so, the City maintains that Back River is "on track toward a near-term return to permit compliance." Def. Resp. at 11.
To that end, the City and MDE have entered into a consent order and reimbursement agreement with regard to Back River, which was approved by the Baltimore City Board of Estimates on June 22, 2022. Def. Resp. at 11-12. The City represents that it is in the process of negotiating an extension of its consent order to allow MES to continue to provide support to the City at Back River until the end of 2022. See Def. Supp. Br. at 4.
According to the City, recent data for Back River shows a steady improvement in the quality of the Plant's effluent. Def. Resp. at 12. For example, the City contends that it has taken multiple steps to remove solids, increase staff, address maintenance backlogs, and repair and replace equipment at Back River. Def. Resp. at 12; see Def. Resp. Ex. 14 at ¶ 5; Def. Resp. Ex. 3; Def. Resp. Ex 10, ECF No. 25-11. The City represents that similar steps to remove solids, increase staff, address maintenance backlogs, and repair and replace equipment are being taken at Patapsco. Def. Resp. at 13; Def. Resp. Ex. 14 at ¶ 6; Def. Resp. Ex. 3; Def. Resp. Ex 11, ECF No. 25-12.
The City also maintains that there have been other recent improvements at the Plants as of September 2022. Def. Supp. Br. at 8-11. Notably, the City represents that it has installed centrifuges, filters, and tanks at Back River. See id. at 10. The City also represents that it has reduced solids and algae, and increased staff numbers at Patapsco. Id. at 11.
As a result of these efforts, the City maintains that Back River is now in compliance with permit limits and that this Plant has met its permit limits since at least June 1, 2022. Id. at 4-5. The City also maintains that Patapsco currently maintains a normal level of solids, and that this Plant is currently meeting its BOD, TSS, and bacterial permit limits. Id. at 8.
BWB's Requested Injunctive Relief
While the parties to this Clean Water Act action agree that the City has taken steps to address the well-documented problems at Back River and Patapsco, BWB maintains that a preliminary injunction is needed to require the City to take immediate steps to address "ongoing and chronic" violations of the Clean Water Act at these facilities. Pl. Mem. at 21. And so, BWB seeks the following injunctive relief:
1. For Back River WWTP:
a. Solids/Sludge
i. Improve centrifuge operations, including repairing all centrifuges, optimizing dewatering, and taking all steps to ensure that the centrifuges are properly maintained;
ii. Maintain continuous communication with Dryer facility operations staff and an adequate supply of potable water to the Dryer facility;
iii. Develop, expand, and update asset inventory and incorporate rapid deployment of CityWorks to get work order system in working condition;
iv. Remove solids that have accumulated in the primary settling tanks, the secondary clarifiers, and the denitrification filters, and enhance the scope of solids removal options;
v. Take all steps necessary to ensure that floating materials and partially treated solids do not discharge to waters of the State;
vi. Remove and prevent the accumulation of any algae and vegetation in any unit process at the WWTP that impacts the ability of the treatment train to control solids releases to the receiving water body;
vii. Within 30 days, implement a permanent solution for the proper management, treatment, and disposal off-site of solids produced by the WWTP; and
viii. Initiate work immediately to place more primary settling tanks in service.
b. Public Notification to Protect Public Health
i. Report to the Maryland Department of the Environment (MDE), Baltimore County Department of Health, and Blue Water Baltimore within 24 hours each instance in which bacteria levels as monitored in the final treatment stage surpass state thresholds for safe contact and subsequently provide a letter of explanation within 5 days of reporting the exceedance to facilitate clear communication to entities responsible for posting warning signs; and
ii. Issue public notifications online and via the existing SSO notification system when bacteria levels as monitored in the final treatment stage surpass state thresholds for safe contact.
c. Qualified Staff
i. Immediately acquire and train adequate staff to supplement existing staff and address any critical staffing shortages that exist at any unit in the WWTP; and
ii. Within 30 days, report to Blue Water Baltimore and the Court any newly acquired certifications from the State Board of Waterworks and Waste Systems Operators for staff at each unit of the WWTP and the
number of new hires or newly vacant positions for each unit.
d. Monitoring
i. Immediately ensure all sampling and data reporting is conducted in accordance with all applicable guidelines, best practices, and requirements, and that any mishandled samples are discarded and reported properly to MDE.
ii. Every week, share summary results or screen capture of the data dashboard used to track daily compliance within the plant with MDE and BWB.
2. For Patapsco WWTP:
a. Solids/Sludge
i. Improve and optimize dewatering processes and take all steps to ensure adequate solid removal from the facility;
ii. Take immediate action to process biosolids at a sufficient level to maintain satisfactory performance in all treatment processes, taking into consideration the backlog of solids within the system that must be removed. Within 30 days, begin to implement a permanent solution for the proper management, treatment, and disposal of solids produced by the treatment process;
iii. Take all steps necessary to ensure that floating materials and partially treated solids do not discharge to waters of the State, including, but not limited to, regularly skim the final effluent of floating solids in the chlorine contact chambers to prevent public nuisances and unpermitted discharges of partially treated materials;
iv. Ensure the proper dosing of chemicals and any other activities necessary to prevent the generation of hydrogen sulfide and ensure ventilation of hazardous gases, which has been detected in the headworks buildings and can create hazardous conditions and damage or interfere with plant operations; and
v. Initiate work immediately to place more primary settling tanks in service and to ensure adequate skimming and other manual operations until tank automation is complete.
b. Fats, Oil, Grease Mitigation
i. Within 15 days, submit to the Court, MDE and Blue Water Baltimore a report detailing all specific measures and actions taken to ensure compliance with the FOG Mitigation Plan for the year 2021;
ii. Within 15 days, concerning industrial facilities that discharge into the Patapsco WWTP sewershed, provide:
(1) any information on FOG tracking that has been done in the last year, including, who conducted it and when it was conducted;
(2) a list of all industrial facilities that the City has issued a pretreatment permit to; and
(3) for each industrial facility identified in (ii) above: the date of the last inspection; a description of the facility's pretreatment processes, and the compliance/non-compliance status.
c. Public Notification to Protect Public Health
i. Report to MDE and Blue Water Baltimore within 24 hours each instance in which bacteria levels as monitored in the final treatment stage surpass state thresholds for safe contact and subsequently provide a letter of explanation within 5 days of reporting the violation;
ii. Issue public notifications online and via the existing SSO notification system when bacteria levels as monitored in the final treatment stage surpass state thresholds for safe contact; andSee Pl. Reply Ex. G.
iii. Immediately post signs in all public access points to the Patapsco River impacted by the WWTP out-fall indicating that the area is known to experience high levels of bacteria that can pose a threat to human health. At a minimum, these locations include:
(1) Downtown Sailing Center
(2) Canton Waterfront Park
(3) Middle Branch Rowing Center
(4) MedStar Harbor Hospital
(5) Ferry Bar Park
(6) Dragon Paddle Boats
(7) Maryland Science Center
(8) Inner Harbor Amphitheater
(9) Swan Park
(10) Canton Kayak Club locations
(11) Fort Armistead
d. Qualified Staff
i. Immediately acquire and train adequate staff to supplement existing staff and address any critical staffing shortages that exist at any unit in the WWTP; and
ii. Within 30 days, report to Blue Water Baltimore and the Court any newly acquired certifications from the State Board of Waterworks and Waste Systems Operators for staff at each unit of the WWTP and the number of new hires or newly vacant positions for each unit.
e. Monitoring
i. Immediately ensure all sampling and data reporting is conducted in accordance with all guidelines, best practices, and applicable requirements, and that any mishandled samples are discarded and reported properly to MDE.
ii. Every week, share summary results or screen capture of the data dashboard used to track daily compliance within the plant with MDE and BWB.
3. In addition to the specific measures set forth in this Order, Defendant shall take all steps necessary to immediately come into compliance with the NPDES permits and all state and federal requirements.
4. Defendant shall provide a report to the Court within 30 days of this Order and every 30 days thereafter regarding progress on all actions listed below. The report should include 1) a summary of progress with complying with each requirement; 2) an identification of obstacles encountered in achieving compliance; and 3) steps taken to address those obstacles.
B. Procedural Background
BWB commenced this action on December 15, 2021. See generally Compl. On June 13, 2022, BWB filed a motion for a preliminary injunction and a memorandum in support thereof. See Pl. Mot.; Pl. Mem.
On June 27, 2022, the City filed a response in opposition to BWB's motion. See Def. Resp. On July 11, 2022, BWB filed a reply in support of its motion for a preliminary injunction. See Pl. Reply, ECF No. 28.
The City filed a sur-reply to BWB's motion on July 18, 2022. See Def. Sur-reply. On August 23, 2022, and September 6, 2022, respectively, the parties filed supplemental briefs. See Pl. Supp. Br.; Def. Supp. Br.
On July 20, 2022, and on October 11, 2022, the Court held hearings on BWB's motion for a preliminary injunction. See ECF Nos. 37, 48.
BWB's motion for a preliminary injunction having been fully briefed, the Court resolves the pending motion.
III. LEGAL STANDARDS
A. Preliminary Injunction
A preliminary injunction is an "extraordinary remed[y] involving the exercise of very far-reaching power to be granted only sparingly and in limited circumstances." MicroStrategy Inc. v. Motorola, Inc., 245 F.3d 335, 339 (4th Cir. 2001). In determining whether to issue a preliminary injunction, the Court must follow the test set forth by the Supreme Court in Winter v. Natural Resources Defense Council, Inc., which requires a showing that: (1) the movant is likely to succeed on the merits; (2) the movant is likely to suffer irreparable harm absent preliminary relief; (3) the balance of equities favors the movant; and (4) an injunction is in the public interest. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008); accord Roe v. Dep't of Def., 947 F.3d 207, 219 (4th Cir. 2020); League of Women Voters of N.C. v. N.C., 769 F.3d 224, 236 (4th Cir. 2014).
The movant must show more than a "grave or serious question for litigation;" instead, it bears the "heavy burden in showing its likelihood of success" at trial on the merits. Real Truth About Obama, Inc. v. Fed. Election Comm'n, 575 F.3d 342, 346 (4th Cir. 2009); Int'l Bhd. of Teamsters, Loc. Union No. 639 v. Airgas, Inc., 239 F. Supp. 3d 906, 912 (D. Md. 2017) (quoting Winter, 555 U.S. at 22, 129 S.Ct. 365) ("Because a preliminary injunction is 'an extraordinary remedy,' it 'may only be awarded upon a clear showing that the plaintiff is entitled to such relief.' "). Still, an injunction "is not granted as a matter of course, and whether to grant the injunction still remains in the equitable discretion of the [district] court even when a plaintiff has made the requisite showing." Bethesda Softworks, L.L.C. v. Interplay Entm't Corp., 452 F. App'x 351, 353 (4th Cir. 2011) (internal citations omitted) (alteration in original); see also Amoco Prod. Co. v. Vill. of Gambell, AK, 480 U.S. 531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) ("[A]n injunction is an equitable remedy that does not issue as of course.").
In this regard, the Supreme Court has recognized that "[e]nvironmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable. If such injury is sufficiently likely, therefore, the balance of harms will usually favor the issuance of an injunction to protect the environment." Amoco, 480 U.S. at 545, 107 S.Ct. 1396. Courts have also recognized that irreparable harm should be determined by reference to the purposes of the statute being enforced. See, e.g., Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 886 F.3d 803, 818 (9th Cir. 2018). But, a movant must still show that irreparable injury is likely in the absence of an injunction. See Winter, 555 U.S. at 22, 129 S.Ct. 365. And so, a mere possibility of irreparable harm cannot support an injunction. See id.
B. The Clean Water Act
Congress amended the Clean Water Act in 1972 "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters" and with an eye toward "the national goal that the discharge of pollutants into the navigable waters be [e]liminated by 1985." 33 U.S.C. § 1251(a)(1); Schneider v. Donaldson Funeral Home, P.A., No. 16-2843, 2017 WL 68644, at *3 (D. Md. Jan. 6, 2017). Section 301 of the Clean Water Act provides that, "[e]xcept as in compliance with this section [and other sections] of this title, the discharge of any pollutant by any person shall be unlawful." 33 U.S.C. § 1311(a). The Clean Water Act has narrow exceptions to this general prohibition, including for the discharge of pollutants, which is allowed within the boundaries of a permit which is properly issued through the National Pollution Discharge Elimination System ("NPDES"). See 33 U.S.C. § 1342(a).
The Clean Water Act also contemplates interlocking but "distinct roles for the Federal and State Government" in regulating compliance with the Act. Schneider, 2017 WL 68644, at *3 (citation omitted). Specifically, the Clean Water Act requires States to set up parallel regulatory systems for their own waterways that are tailored to specific intrastate needs. See 33 U.S.C. §§ 1311, 1314. Under the Clean Water Act's statutory scheme, NPDES permits may be issued directly by the EPA Administrator or, if a state's water quality regulation program has been approved by the Administrator, the EPA may delegate its permitting authority to the state regulatory body. See 33 U.S.C. § 1342(a)-(b). Relevant here, the State of Maryland's regulatory scheme and its accompanying antidegradation policy has been approved by the EPA and MDE retains the authority to issue NPDES permits within the state. See Schneider, 2017 WL 68644, at *4; see also Md. Code Regs. 26.08.02.04.
IV. LEGAL ANALYSIS
BWB has moved for a preliminary injunction requiring the City to: (1) immediately undertake several actions to ensure that it operates Back River and Patapsco in compliance with their respective NPDES Permits and all applicable state and federal laws and (2) implement certain public notification and monitoring efforts for Back River and Patapsco to protect the health and safety of the public. See generally Pl. Mem.; see also Pl. Reply Ex. G, ECF No. 28-8. BWB argues that it is entitled to this injunctive relief, because: (1) most of the Clean Water Act violations alleged in this action are based upon the City's self-reported violations; (2) it will suffer irreparable harm in the absence of a preliminary injunction; and (3) the balance of the equities and public interest weigh in favor of granting such relief. Id. at 18-27; Pl. Supp. Br. at 2-33.
In its response in opposition to BWB's motion, the City acknowledges that BWB is likely to succeed on the merits of at least some of its claims. See Def. Resp. at 14. But, the City argues that the requested injunctive relief should not be granted, because: (1) BWB has not shown that it is likely to suffer irreparable harm absent this relief; (2) the balance of the equities weighs against granting injunctive relief in this case; and (3) the public interest would not be served by the requested injunctive relief. Def. Resp. at 14-34; Def. Supp. Br. at 6-20. And so, the City requests that the Court deny BWB's motion. Def. Resp. at 34.
For the reasons that follow, BWB has shown that it is likely to succeed on the merits of its claims in this Clean Water Act action. But, BWB has neither shown that it is likely to suffer irreparable harm absent the requested injunctive relief, nor that the balance of hardships in this case weigh in favor of granting such relief. And so, the Court must DENY BWB's motion for a preliminary injunction. Because BWB persuasively argues that the remedial measures needed to ensure that the Plants comply with their respective NPDES Permits must be completed without delay, the Court will deny BWB's motion WITHOUT PREJUDICE, to allow BWB to renew its motion if these remedial measures are not promptly completed.
A. BWB Has Shown A Substantial Likelihood Of Success On The Merits
As an initial matter, BWB has shown that it is likely to succeed on the merits of at least some of its Clean Water Act claims. See Winter, 555 U.S. at 22, 129 S.Ct. 365 (holding that to obtain a preliminary injunction a movant must show, among other things, that it is likely to succeed on the merits). As the City acknowledges, there is no dispute that facility inspections conducted by MDE in May and June of 2021 revealed that the Plants were failing to consistently meet the total suspended solids, biological oxygen demand, total nitrogen and total phosphorous final effluent standards of their respective NPDES Permits. Def. Resp. at 14 (acknowledging that BWB "will be able to establish a number of violations at the City's plants."); see also Def. Resp. Ex. 1 at 1-1; Def. Resp. Ex. 2 at 1-1. It is also undisputed that the City's own data reports regarding the Plants found 254 separate violations of these NPDES Permits at Back River and Patapsco, collectively. See Pl. Mot. Ex. 1; see generally Def. Resp. Because BWB's Clean Water Act claims in this action are based upon these acknowledged violations, BWB has shown that is likely to succeed on the merits of its claims. See Compl. at ¶¶ 71-147; Winter, 555 U.S. at 20, 129 S.Ct. 365.
B. BWB Has Not Shown Irreparable Harm
The issue of whether BWB has shown that it is likely to suffer irreparable harm absent the injunctive relief that it seeks in this case is, however, a much closer question. As BWB correctly argues, the Supreme Court has recognized that "[e]nvironmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable." Amoco, 480 U.S. at 545, 107 S.Ct. 1396; see Pl. Supp. Br. at 2. And so, if an environment injury is sufficiently likely, the balance of harms will usually favor the issuance of an injunction to protect the environment. See Amoco, 480 U.S. at 545, 107 S.Ct. 1396.
But, BWB must also show that any irreparable harm to the environment, or to its members, caused by the alleged Clean Water Act violations in this case is likely in the absence of an injunction. See Winter, 555 U.S. at 22, 129 S.Ct. 365. Given this, the mere possibility of irreparable harm in the absence of the requested relief is not sufficient to support the issuance of a preliminary injunction. See id.
Here, BWB alleges both irreparable harm to the environment, through damage to the ecosystem, and irreparable harm to its members, because the alleged Clean Water Act violations will interfere with the ability to safely swim, fish and operate businesses in and along the Back River and the Patapsco River. Pl. Mem. at 22-24. But, the City argues with some persuasion that BWB identifies only potential harms, such as fish kills, malodors, and loss of enjoyment of water-based activities, that could occur if the Court declines to grant the requested injunctive relief. See Def. Resp. at 17; see also Pl. Mem. at 21-24 ("The public . . . are at risk of experiencing . . . physical ailments if they come into contact with harmful algae blooms.") (emphasis added); Pl. Supp. Br. at 10-12 (stating that those who swim in the Back River "may" face safety risks).
The evidence before the Court regarding the City's ongoing efforts to remedy the violations at Back River and Patapsco, at the direction of the MDE, also casts doubt upon BWB's argument that it will be irreparably harmed absent the requested injunctive relief. It is undisputed that the City has already undertaken several steps to address and remedy the violations at Back River at the direction of MDE. Notably, the Secretary of MDE issued a directive instructing MES to, among other things, provide staff at Back River, and MES staff have been present at Back River since March 28, 2022. Def. Resp. at 11. The City and MDE have also entered into a consent order and reimbursement agreement regarding Back River, which has resulted in several improvements at this facility. See id. at 11-12.
For example, the City represents that it has taken multiple steps to remove solids, increase staff, address maintenance backlogs, and repair and replace equipment at Back River, including installing centrifuges, filters, and tanks. See Def. Resp. Ex. 14 at ¶ 5; Def. Resp. Ex. 3; Def. Resp. Ex 10, ECF No. 25-11. Due to these efforts, the City represents to the Court that Back River is now in compliance with permit limits and that this facility has met its BOD, TSS, and bacterial limits since at least June 1, 2022. Def. Supp. Br. at 4-5.
The City also represents to the Court that similar steps to remove solids, increase staff, address maintenance backlogs, and repair and replace equipment are being undertaken at Patapsco. Def. Resp. at 13; Def. Resp. Ex. 14 at ¶ 6; Def. Resp. Ex. 3; Def. Resp. Ex 11, ECF No. 25-12. Notably, the City represents that it has reduced solids and algae, and increased staff numbers at Patapsco. Def. Supp. Br. at 10-11. And so, the City also maintains that Patapsco currently maintains a normal level of solids, and that this facility is currently meeting its BOD, TSS, and bacterial permit limits. Id. at 8.
To be clear, the evidence before the Court shows that problems still persist at Patapsco. For example, MDE identified a number of issues during its unannounced September 30, 2022, visit to Patapsco, including: (1) an overdue plan for FOG mitigation; (2) problems hiring qualified staff; (3) a lack of reliable parts and equipment inventory; (4) solids output in excess of Patapsco's permit; and (5) a failure to report significant numbers of collected samples. See ECF No. 49-1 at 33-35. But, MDE's September 30, 2022, inspection report also notes that Patapsco's TSS and BOD levels have declined significantly since April 2022. See id. at 11. Given this, the evidence currently before the Court shows that the City's efforts to address and improve the conditions at both Plants have been met with some success.
BWB also acknowledges that the injunctive relief that it seeks in this action closely mirrors the steps that the City has already agreed to undertake to address and remedy the Clean Water Act violations at Back River and Patapsco. See Pl. Reply Ex. G; Pl. Mem. at 31; Pl. Supp. Br. at 18, 27. In fact, a comparison of BWB's proposed order for injunctive relief and the recommendations in MDE's Engineering Report, which have been adopted by the City, shows that the City has agreed to, and in some cases has completed, many of the remedial measures requested by BWB. See Pl. Reply Ex. G; Def. Supp. Br. Exs. 2, 3. Given this, the evidence before the Court makes clear that the remedial measures requested by BWB will largely be accomplished without the need for this Court to intervene.
C. The Balance Of Hardships Weighs Against Granting Injunctive Relief
Even if BWB could show that it is likely to suffer irreparable harm, absent the requested injunctive relief, the balance of the hardships in this case also weighs against granting this relief. BWB argues that the balance of harm usually favors the entry of an injunction when environmental injury is shown. Pl. Mem. at 2-3; see also Amoco, 480 U.S. at 545, 107 S.Ct. 1396. But, balanced against the alleged harm in this case is the undisputed fact that the City has already undertaken several steps to address and remedy the violations at Back River and Patapsco.
As discussed above, the City reports that: (1) Back River is now in compliance with Permit limits; (2) Patapsco currently maintains a normal level of solids; and (3) both Plants are currently meeting their BOD, TSS, and bacterial Permit limits. Def. Supp. Br. at 3-5, 8. The record currently before the Court also shows that there has been meaningful, albeit at times slow, improvement at both Plants through the measures undertaken by City at the direction of MDE. See generally id.; Def. Supp. Br. Exs. 2, 3. Given this, the Court is concerned that issuing the requested injunction would force the City to comply with parallel actions to remedy the violations at Back River and Patapsco. Such a result could have the unintended consequence of further delaying the much-needed improvements that BWB identifies in its motion.
The Court also recognizes that the State of Maryland is actively engaged in addressing the violations at Back River. This fact also weighs against granting injunctive relief. As the Supreme Court has recognized, "the citizen suit is meant to supplement, not supplant, governmental action." See Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 60, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). And so, the overall public interest in avoiding further pollution of the waterways impacted by the Plants is better served with active enforcement by MDE, rather than by this Court, absent proof of the inadequacy of MDE's enforcement. See Sierra Club v. City of Colo. Springs, No. 05-1994, 2009 WL 2588696, at *17 (D. Colo. Aug. 20, 2009) ("Given the state's involvement with its permits and compliance orders [and] absent proof of the inadequacy of the state's enforcement, the overall public interest in avoiding pollution of navigable waters is better served with active enforcement by the CDPHE rather than by this Court.").
While the Court concludes that BWB has not shown that a preliminary injunction is warranted in this case, based upon the current evidentiary record, the Court shares BWB's concern that the violations at Back River and Patapsco must be promptly remedied to protect the health and safety of the impacted communities. As BWB correctly observes, any delay in completing this important work will further erode public trust and confidence in the City's stewardship of Back River and Patapsco. And so, the Court will deny BWB's motion without prejudice, to allow BWB to renew its motion if the City's remedial measures are delayed, or if the conditions at the Plants indicate that new Clean Water Act violations are likely to occur.
V. CONCLUSION
In sum, BWB has shown that it is likely to succeed on the merits of its claims in this Clean Water Act case. But, BWB has neither shown that it is likely to suffer irreparable harm in the absence of a preliminary injunction, nor that the balance of hardships weighs in favor of granting injunctive relief. And so, for the foregoing reasons, the Court:
1. DENIES BWB's motion for a preliminary injunction WITHOUT PREJUDICE;
2. DIRECTS the City to FILE a status report advising the Court of the status of the remedial measures and repairs at Back River and Patapsco, and stating whether each Plant is in compliance with its respective NPDES Permit, on or before November 8, 2022, and every 30 days thereafter. BWB may join in this
status report to state its views on the status of the Plants, if warranted; and
3. DIRECTS the parties to FILE a joint status report proposing a schedule for further proceedings on or before November 8, 2022.
IT IS SO ORDERED.