Lawsuit on MDE papers in court

Bay foundation says documents will show delays on water act

State asserts privilege

Annapolis

September 27, 2000|By Andrea F. Siegel | Andrea F. Siegel,SUN STAFF

The Chesapeake Bay Foundation and the Maryland Department of the Environment will square off in an Annapolis courtroom today as the conservation group asks a judge to force the state agency to turn over nearly 1,000 documents it suspects will bolster its claim that the state is slow in complying with the federal Clean Water Act.

The nonprofit organization and the state agency have been tangling over access to the documents since 1997. The Chesapeake Bay Foundation is arguing that it has the right to see the records, which it thinks will help it in a federal lawsuit in which it and two other groups are seeking to speed the cleanup of Maryland's waterways.

The Department of the Environment has countered that the documents are private because they are part of the agency's internal planning and discussions.

"They are privileged because they are attorney-client privilege and they are held under executive privilege," said Richard McIntyre, department spokesman. He described the information in the documents as "very preliminary" and deliberative.

In a hearing set for this morning, the state agency will ask an Anne Arundel County Circuit Court judge to dismiss the foundation's lawsuit.

But the Chesapeake Bay Foundation maintains that because the documents relate to the state's compliance with the federal Clean Water Act of 1972, they should be available. The organization believes the documents, some of which were shown to it inadvertently and then pulled back, would demonstrate that the agency failed to comply with the law.

"It is the most significant water quality control program out there, and one of the most significant tools for cleaning up the water quality for the Chesapeake Bay," George Chmael, senior staff attorney for the foundation, said of the federal act's provisions. "We want to know what the state and federal agencies are doing with the program. ... What's in there that they would go to such effort over three years to keep it from the public?"

Decision overruled

In 1998, an administrative law judge told the state agency to release the records.

But MDE appealed that decision to what is known as a "final decision-maker," someone within MDE who in January overruled the administrative law judge and ordered most of the documents kept private.

The foundation sued. It has argued that in one of the documents the agency showed it and then took back, MDE said it needed to do "quick and dirty" plans for thefederal Environmental Protection Agency.

McIntyre said that was taken out of context and referred to a "quick and dirty review of what data they needed to assess."

The 1972 federal law requires each state to identify polluted waterways and set limits for each pollutant, known as the total maximum daily load, or TMDL. Each state is to devise plans to get the pollutants under the limit, with each plan being approved by the EPA.

But for two decades, states generally did little work on TMDL, and the EPA did not prod them. A flurry of lawsuits helped force the EPA to act.

Environmental groups around the nation have sued the EPA to force compliance with the law in 38 states. Maryland, the subject of a 1997 lawsuit in U.S. District Court in Baltimore, is one of eight states in which the issue remains in litigation.

`Impairments' identified

The EPA is under court order to run the compliance program in 18 states - Virginia, Pennsylvania, Delaware and West Virginia among them - if the states do not.

Maryland submitted its first list in 1996 and has had about 10 of the pollution control plans approved. But MDE has identified about 360 "impairments" to waterways around the state. In 1998, the federal government gave states more time to develop their cleanup plans. Maryland has until 2008.

Sun staff writer Chris Frates contributed to this article.

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