Gunpowder Riverkeeper Sends EPA a Notice Of Intent to sue under the Clean Water Act to Protect the Tidal Gunpowder and Bird Rivers from PCB Pollution

For Immediate Release: February 27, 2020

Contact: Theaux M. Le Gardeur (410) 967-3526
Gunpowder Riverkeeper,
Ben Barczewski, Staff Attorney
Institute for Public Representation

Joppa, Maryland. – Today, Gunpowder Riverkeeper served the U.S. Environmental Agency (EPA) with a 60-day Notice of Intent to Sue under the Clean Water Act to ensure that the Tidal Gunpowder River and Bird River get the protection they deserve from the Environmental Protection Agency and the Maryland Department of the Environment (MDE).

The Gunpowder and Bird Rivers are used by boaters and swimmers, especially along the Hammerman area of Gunpowder State park. It is also is a great area for fishing and crabbing along the Chesapeake Bay. Unfortunately, State and federal regulators have recently failed in their duty to provide the required protections under the Clean Water Act
for these waterways and the communities that use them. Although the waterways have been recognized for years as impaired by carcinogenic polychlorinated biphenyls (PCBs), EPA has allowed MDE to delay the cleanup in these areas.

The Clean Water Act requires MDE to identify all of the rivers, streams, lakes and coastlines that fail to meet state water quality standards and submit a list of those waterways to the EPA. Placement on that list, known as the Section 303(d) List, is important because it prioritizes reducing pollution in those waters. The list’s ultimate goal is to restore those waters so they can fully support their designated uses for fish and wildlife, recreation, and drinking water.

MDE placed the Gunpowder River on its Section 303(d) List in 2006, and the Bird River on the 303(d) list in 2008. Both were placed on the list for high levels of PCBs. Consequently, MDE must reduce pollution in both rivers by establishing a “pollution budget,” known as a total maximum daily load (TMDL). The Clean Water Act requires MDE’s PCB pollution budget to limit the flow of PCBs into the Gunpowder and Bird Rivers from all sources.

In 2016, MDE finalized the current, combined TMDL for PCBs in the Gunpowder and Bird Rivers. That TMDL relies on natural attenuation—the process of allowing the chemicals to break down naturally—to gradually reduce PCB concentrations. As a result,MDE estimates that it will take nearly 49 years for PCB concentrations in the Gunpowder River to meet water quality standards, and 93 years for the Bird River.

MDE’s TMDL violates the Clean Water Act by failing to set pollution limits for the major source of PCBs in both rivers: highly contaminated riverbed sediments.

“The Gunpowder and Bird Rivers are important tidal waterways which deserve to be fully protected for fishing, swimming, drinking water, recreation, and wildlife habitat,” said Theaux Le Gardeur, the Gunpowder Riverkeeper. “It is unfair for the state of Maryland to subject generations of Marylanders to the presence of carcinogenic compounds when a clearer path that would have resulted in a quicker cleanup to meet minimum water quality standards was and still is attainable.”

Gunpowder Riverkeeper’s notice letter asks EPA to correct its mistake in approving the 2016 PCB TMDL within 60 days, and to establish a revised TMDL that includes pollution limits for sediment. If EPA fails to correct within the 60-day period, Gunpowder Riverkeeper intends to file suit in U.S. District Court.

“EPA’s approval of the Gunpowder and Bird Rivers PCB TMDL violated the Agency’s . . . duty to disapprove a TMDL that does not meet the basic requirements of the [CleanWater Act],” said Gunpowder Riverkeeper in the notice letter.

PCBs bind with sediment and particularly impact groundfish that subsistence anglers rely on to feed their families. “The timelines of 49 years for the Gunpowder River and 93 years for the Bird River is too long to wait for PCB legacy pollution to move through the Chesapeake Bay to meet water quality standards,” said Theaux M. Le Gardeur, Gunpowder Riverkeeper.

Gunpowder Riverkeeper is represented by the Institute for Public Representation (IPR), a public interest law firm and clinical education program established at Georgetown University Law Center in 1971. Attorneys at IPR function as counsel for groups and individuals who are unable to obtain effective legal representation on matters including those involving the environment.

The Gunpowder RIVERKEEPER is a 501(c)(3) nonprofit, EIN # 27-1517453 is
categorized by the IRS under natural resource conservation and protection and was founded in 2010 by a grassroots group of fishing guides, hikers and boaters who enjoyed the natural beauty of the Gunpowder River. Our focus is on regulatory reform and compliance. We hold polluters accountable by prompting enforcement of water laws. This work strengthens public notice and public engagement in permits impacting waterways and addresses threats that include; invasive species (Didymo algae was discovered in 2008) loss of agricultural and forested land caused by residential development pressure, overuse of State Parklands, and unchecked industrial pollution along the river corridor.