UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF MARYLAND
________________________________________________________
                                                        )
NATURAL RESOURCES DEFENSE COUNCIL,                      )
INC. (40 W. 20TH St., New York, NY 10011),              )
                                                        )
AIRPORT ENVIRONMENTAL COALITION                         )
(P.O. Box 322, Linthicum, MD 21090) (Anne               )
Arundel County),                                        )
                                                        )
HUMANE SOCIETY OF THE UNITED STATES                     )
(2100 l St., N.W., Washington, DC 20037),               )
                                                        )
and                                                     )
                                                        )
US CITIZENS AVIATION WATCH                              )
(P.O. Box 1702, Arlington Heights, IL 60006),           )
                                                        )
                            Plaintiffs,                 )
                                                        )
              vs.                                       )   Civil Action No. 
                                                        )
THEODORE MATHISON, in his official capacity             )
as Executive Director of the Maryland Aviation          )
Administration (Third Floor, Terminal Building,         )
BWI Airport, MD 21240-0766),                            )
                                                        )
                            Defendant.                  )
________________________________________________________)

COMPLAINT

1. This is a citizens' enforcement action brought to abate the discharge of toxic and environmentally harmful pollutants from the Baltimore Washington International Airport ("BWI" or "the Airport") and to enforce the public’s right to know about such discharges. Plaintiffs, Natural Resources Defense Council, Inc. ("NRDC"), the Airport Environmental Coalition, the Humane Society of the United States, and US Citizens Aviation Watch (collectively, "Plaintiffs") are suing defendant Theodore Mathison in his official capacity as Executive Director of the Maryland Aviation Administration ("Defendant") for violations of the Clean Water Act, 33 U.S.C. 1251-1387 ("CWA"), the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9601-9675 ("CERCLA"), and the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. 11001-11050 ("EPCRA").


STATEMENT OF THE CASE

2. BWI has been and continues to be in violation of National Pollutant Discharge Elimination System ("NPDES") permit 93-DP-2546 issued to the Maryland Aviation Administration ("MAA") and CWA Sections 301 and 402, 33 U.S.C. 1311 and 1342, among other provisions, because of its inadequate stormwater pollution prevention plan and glycol tracking system and discharge of polluted stormwater and other effluent into waters of the State of Maryland, the Chesapeake Bay and the Atlantic Ocean. The unlawful and excessive discharges of stormwater pollution by BWI have introduced and continue to introduce noxious pollutants into these waters and have injured and continue to injure plaintiffs.

3. BWI also has been and continues to be in violation of CERCLA Section 103(a), 42 U.S.C. 9603(a), and EPCRA Section 304(a), (b) and (c), 42 U.S.C. 11004(a), (b) and (c), for failing to submit the required right-to-know reports of releases of hazardous substances to the National Response Center, state emergency planning commissions, and local emergency planning committees.

4. By this action, Plaintiffs seek (i) a declaration that Defendant has violated and continues to violate the CWA, CERCLA, and EPCRA; (ii) an order compelling Defendant to suspend the unlawful and excessive discharges by complying with the specific terms of its NPDES permit; (iii) an order compelling Defendant to comply with the reporting requirements under CERCLA and EPCRA; and (iv) the costs and disbursements, including attorneys' and experts' fees, of bringing this action.


JURISDICTION AND VENUE

5. This Court has subject matter jurisdiction over the claims set forth in this complaint under Section 505(a) of the CWA, 33 U.S.C. 1365(a), Section 310(c) of CERCLA, 42 U.S.C. 9659(c), and Section 326(c) of EPCRA, 42 U.S.C. 11046(c). This Court also has subject matter jurisdiction over the claims set forth in this complaint under 28 U.S.C. 1331 (federal question) and 28 U.S.C. 2201-02 (declaratory judgment).

6. On January 7, 1998, Plaintiffs gave notice of the violations alleged and their intent to file suit to Defendant Mathison, MAA, the Maryland Department of the Environment (MDE), the Attorney General of Maryland, the Administrator of the United States Environmental Protection Agency (EPA), the Regional Administrator of EPA, and the United States Attorney General, as required by Section 505(b)(1)(A) of the CWA, 33 U.S.C. 1365(b)(1)(A), Section 310(d)(1) of CERCLA, 42 U.S.C. 9659(d)(1), and Section 326(d)(1) of EPCRA, 42 U.S.C. 11046(d)(1). The notice letter specifically reserved the right to allege additional violations. A copy of the notice letter and the return receipts are attached hereto as Exhibit A and are incorporated into this complaint.

7. More than sixty days have passed since notice was served, and neither EPA nor MDE has commenced and diligently prosecuted a court action to redress the violations alleged in the notice letter.

8. This action is not barred by any prior administrative penalty under Section 309(g) of the CWA, 33 U.S.C. 1319(g).

9. The violations alleged in the notice letter are continuing and future violations of the CWA, CERCLA and EPCRA by Defendant are imminent.

10. Venue is appropriate in the District of Maryland under Section 505(c)(1) of the CWA, 33 U.S.C. 1365(c)(1), Section 310(b)(1) of CERCLA, 42 U.S.C. 9659(b)(1), Section 326(b)(1) of EPCRA, 42 U.S.C. 11046(b)(1) and 28 U.S.C. 1391(b), because the violations occurred within this District. Venue is also appropriate under 28 U.S.C. 1391(b) because Defendant may be found in this District.


PARTIES

11. Plaintiff NRDC is a not-for-profit membership corporation organized under the laws of the State of New York, with offices in Washington, D.C., New York, Los Angeles, and San Francisco. NRDC has over 350,000 members nationwide and over 8,500 members in Maryland. NRDC is dedicated to reducing pollution and protecting natural resources, and has a long history of advocacy, litigation, and research in industrial and municipal stormwater. In October 1996, NRDC published a report entitled Flying Off Course, which examined the environmental impacts of airports in the United States, including the impact of deicing on water quality.

12. Plaintiff Airport Environmental Coalition is a not-for-profit corporation organized under the laws of the State of Maryland and based in Linthicum, Anne Arundel County, Maryland. The Airport Environmental Coalition has approximately 10 to 20 members, most of whom reside in the vicinity of BWI Airport and some of whom reside immediately adjacent to the banks of creeks that drain stormwater from BWI Airport. The Airport Environmental Coalition is dedicated to reducing pollution and reducing adverse environmental impact from BWI Airport.

13. Plaintiff Humane Society of the United States (Humane Society) is a national non-profit corporation organized under the laws of the State of Delaware. The Humane Society has over 818,566 members nationwide and approximately 24,000 members in Maryland. The Humane Society is organized to promote the humane treatment and welfare of all animals and to protect animals from, among other things, environmental pollution.

14. Plaintiff US Citizens Aviation Watch (Aviation Watch) is a nationwide umbrella organization organized under the laws of the State of Illinois and comprised of approximately 15 local airport environmental groups in various states, including the Airport Environmental Coalition in Maryland and Citizens For The Abatement Of Aircraft Noise in Washington, D.C. Aviation Watch represents thousands of members nationwide, including members who reside in the proximity of BWI. Aviation Watch is dedicated to protecting the public from the adverse environmental impacts of airports.

15. All of the above-named Plaintiffs sue on behalf of themselves and their members.

16. Members of all of the above-named Plaintiffs use, enjoy and benefit from the waters into which BWI unlawfully discharges stormwater pollution. In particular, Plaintiffs’ members do, or did until the waters became too contaminated but continue to desire to, reside, walk, and recreate near and boat on, fish and wade or swim in, and otherwise value waters adversely affected by pollutants from BWI Airport. The quality of these waters directly affects the health, recreational, aesthetic, scientific, environmental and economic interests of Plaintiffs' members. The interests of Plaintiffs' members have been, are being, and will be adversely affected by Defendant’s discharge of stormwater pollution into water in violation of the specific requirements of the NPDES permit.

17. Moreover, Plaintiffs report to their members and the public about the storage of chemicals and chemical releases into the environment, prepare reports for their members and the public, advocate for the reduction of chemicals and seek to promote the effective enforcement of environmental laws. Plaintiffs’ right-to-know about chemical releases and their interests in protecting and improving the environment and the health of their members have been, are being, and will be adversely affected by Defendant’s failure to provide timely information regarding chemical releases under CERCLA and EPCRA. Plaintiffs use such reported information to learn about chemical releases and the use of hazardous substances in their communities and to advocate reduction of chemicals in areas in which their members reside, work and visit. The violations of CERCLA and EPCRA have reduced, are reducing, and will reduce the ability of Plaintiffs to act on such information.

18. Defendant Theodore Mathison is the Executive Director of MAA, an agency of the State of Maryland. MAA owns, maintains and operates BWI. Upon information and belief, Mathison is responsible for all aspects of BWI’s operations including its compliance with its NPDES permit and all applicable environmental laws.


FACTS COMMON TO ALL CAUSES OF ACTION

19. Removing ice from aircraft is a part of airport operations in winter months. BWI and the airlines using the Airport control ice through the use of chemicals, including ethylene glycol mixtures and propylene glycol mixtures, both with additives. As a general matter, chemical deicers are applied as a hot liquid mixture of compound and water under pressure using a nozzle mounted on a vehicle. The pressure of the liquid hitting the surface of the aircraft mechanically removes snow and ice, which is also melted by the heat of the solution. The antifreeze property of the compound further removes snow and ice. Most deicer solution falls off airplanes, and the remainder prevents exposed portions of the airplane from getting re-covered by ice prior to take-off. Runway deicing may also involve liquid deicing solution.


Glycols

20. According to the Occupational Safety and Health Administration (OSHA), ethylene glycol "causes eye irritation, central nervous system depression, and kidney and liver damage" in lab tests. OSHA states that, in humans, exposure to ethylene glycol by either ingestion or inhalation causes eye and upper respiratory tract irritation and headaches. Ingestion of ethylene glycol causes kidney damage and can be fatal, even in small amounts.

21. Glycols, both ethylene and propylene, exert a high biochemical oxygen demand (BOD) when released into surface waters. BOD is the measure of the amount of dissolved oxygen needed to break down (or oxidize) a substance. A high BOD means that large amounts of dissolved oxygen in water must be used up to oxidize the substance, thereby reducing the amount of dissolved oxygen available for fish and other aquatic organisms to breathe. For this reason, fish kills have been associated with discharges of deicing chemicals. Other environment impacts associated with deicing chemicals include odors, foam and contaminated surface water and groundwater.

22. Deicing solutions used at BWI Airport also contain additives including anti-corrosive agents and surfactants. Upon information and belief, many of these additives, or their breakdown products, are toxic to humans and wildlife and otherwise harmful to the environment. Upon information and belief, at least several of these additives are hazardous substances within the meaning of CERCLA and EPCRA.

23. Deicing solution, including ethylene glycol, may be discharged to the environment in harmful amounts if not properly controlled. Because deicing solutions pose serious health and environmental risks, various environmental laws control their use.

24. Runoff from BWI Airport drains into three creeks: Sawmill Creek, Stony Run, and Cabin Branch. These creeks all flow into the Patapsco River, whose waters run into the Chesapeake Bay and ultimately the Atlantic Ocean. All of these waters are navigable waters of the United States.


The Stormwater Pollution Prevention Plan

25. The stormwater discharges at BWI Airport must meet the requirements of NPDES permit 93-DP-2546 issued by MDE to MAA on May 9, 1994 (the "Permit").

26. The Permit requires MAA to

develop a storm water pollution prevention plan for each area of the facility with point source discharges of storm water associated with industrial activity. Only those portions of the facility that are either involved in aircraft or ground vehicle maintenance (including aircraft or ground vehicle rehabilitation, mechanical repairs, painting, fueling, and lubrication), equipment cleaning operations, or deicing operations are addressed under this requirement.
27. The Permit requires the stormwater pollution prevention plan (SWPPP) developed by MAA to "describe and ensure the implementation of practices which are to be used to reduce the amount of pollutants in storm water discharges associated with industrial activity at the facility and to assure compliance with the terms and conditions of this permit."

28. In addition, under the Permit, MAA has a continuing obligation to

amend the plan whenever there is a change in design, operation, or maintenance which has a significant effect on the potential for the discharge of pollutants to the waters of the State or if the storm water pollution prevention plan proves to be ineffective in achieving the general objectives of controlling pollutants in storm water discharges associated with industrial activity.
29. Furthermore, the Permit requires MAA to "implement deicing collection facilities and best management practices which reduce the total volume of deicing fluids discharged from the facility to 50% (or less) of the total volume of deicing fluids applied at the facility."

30. The SWPPP includes an aircraft deicing plan, dated November 1993, which relies on installation of a deicing pad at runway 15R (the "15R pad"). MAA projected this pad would collect over 38% of the total amount of glycol used at BWI. This projection was premised on two operational parameters: (i) that the pad would recover over 95% of the glycol applied on it; and (ii) that the 15R pad would be used for 72% of deicing events.

31. The SWPPP also assumes that 20% of the glycol mixture applied would stay on the plane as it left the deicing pad. This amount would either evaporate or come off the plane during the time it taxies and takes off.

32. These assumptions were false. First, the 15R pad recovered far less than 95% of the glycol applied on planes that used the pad. The actual collection rate at the 15R pad was very low; the 15R pad collected 1.15% (891 gallons) of the glycol applied on planes that used the pad from 1994 to 1995, 44.7% from 1995 to 1996 and 54.5% from 1996 to 1997.

33. Second, the 15R pad was in use far less than 72% of the time. In fact, MAA’s data from 1994-1997 show that the 15R pad was in use about 40% of the time -- not 72% of the time as asserted -- because the amount of time the 15R pad is used depends on weather conditions. Operations at BWI Airport occur in East and West Mode depending on wind direction and the 15R pad is not used when runway operations are in West Mode. The percentage of West Mode operations actually increases -- not decreases -- with inclement weather, the period when deicing occurs.

34. In fact, MAA knew that the airport operated in West Mode approximately 70% of the time between September 1986 and March 1996 and West Mode operations were used over 80% of the time during some winter months. At the time MAA submitted the deicing plan incorporated into the SWPPP, BWI operated in East Mode when the pad can be used only about 20% of the time.

35. Despite this data, MAA asserted in the deicing plan that was incorporated in the SWPPP that

[t]ypically, 80 percent of BWI's aircraft operations are conducted in the "West Mode" with airline jet aircraft departing on Runway 28 and most general aviation and commuter aircraft departing on Runway 33R. For the remaining 20 percent of the time the airport operates in "East Mode" with most airline jets departing on Runway 15R and commuter aircraft departing on Runway 15L.
However, during inclement weather when most deicing occurs, aircraft depart in East Mode 72 percent of the time and in West Mode 28 percent of the time.

36. MAA did not amend the plan to include new effective pollution control options even though the initial SWPPP was inadequate. From 1994 to 1997 (i) West Mode operations during deicing events were much more prevalent than projected in the SWPPP (in actual practice, 60% of deicing events occurred during West Mode operations rather that 38% as projected in the plan) and (ii) the total volume of deicing fluids and ethylene glycol discharged from BWI was not reduced by 50%.

37. Moreover, the number of gates on BWI’s international pier has tripled in recent years. Accordingly, the number of flights requiring deicing, and the amount of deicing fluids discharged from BWI, have increased beyond the levels existing or anticipated at the time the SWPPP was developed. Despite these increases, Defendant has not amended its SWPPP.


Monitoring Requirements

38. The Permit requires MAA to submit to MDE a plan

to track and report to the Department the volume of deicing fluids applied at the facility and the volume of fluids that are discharged. As a part of the plan, the permittee shall require all users of deicing fluids to maintain deicing fluid usage logs. The plan shall also include quality control measures to assure accuracy of the information maintained in the reporting logs.
39. The aircraft deicing plan and SWPPP never included, as required, quality control measures.

40. The MAA glycol tracking plan relied on a mass balance model, whereby the amount of fluid discharged was calculated by considering only the volume of fluid collected and applied.

41. MAA knew when it submitted the SWPPP and when it failed to amend the SWPPP that the tracking plan was inadequate to determine definitively compliance with the 50% reduction requirement.


Pollution Reduction Requirements

42. The Permit further requires that

within 36 months after the effective date of this permit, the permittee shall submit to the Department for approval a plan and schedule which will address the need for additional reductions in the total volume of deicing fluids discharged from the facility based on an evaluation of practices, including supporting data (discharge data and/or water quality studies) and rationale. Structural controls, such as establishing additional centralized deicing facilities, and/or collection of contaminated runoff for treatment or recycling should be considered, as well as any new technology or chemicals which may have been developed by that time. The plan shall include treatment requirements (if applicable), operating and maintenance procedures and other management practices to prevent or reduce the discharge of deicing chemicals to waters of the State.
43. MAA's submission in response to this requirement, the May 1997 glycol review report, failed to include a schedule to address the need for additional reductions; failed to consider additional centralized deicing facilities; failed to consider available new technology; failed to consider alternative operating and maintenance procedures; and failed to address the effect of the airport expansion that was already under construction at the time.

44. The Permit requires MAA to "implement deicing collection facilities and best management practices which reduce the total volume of deicing fluids discharged from the facility to 50% (or less) of the total volume of deicing fluids applied at the facility."

45. According to the MAA model, the amount of glycol discharged amounted to 83.9% of glycol applied in 1994 to 1995, 65.3% applied in 1995 to 1996 and 68.1% applied in 1996 to 1997.

46. Upon information and belief, since the overall statistics indicate that the main part of the deicing fluid control system (the 15R pad) operates only approximately 40% of the time, on at least 60% of the days where glycol applications occur the total volume of deicing fluids discharged from the from the facility exceed 50% of that applied.


Reporting Requirements Under The Permit

47. The Permit requires MAA to report the quarterly average and maximum propylene, ethylene and total glycol concentrations for October to May of each year.

48. The Discharge Monitoring Reports (DMRs) originally submitted by MAA for monitoring point 306 in the western drainage basin of the Airport covering the periods October 1 to December 31, 1995; January 1 to March 31, 1996; October 1 to December 31, 1996; and January 1 to March 31, 1997 do not include propylene and total glycol average concentrations.


Persistent Foam From The Discharge Of Deicing Chemicals

49. The Permit provides, "There shall be no discharge of floating solids or persistent foam in other than trace amounts. Persistent foam is foam that does not dissipate within one half-hour of point of discharge."

50. On March 1, 1997, March 2, 1997, March 3, 1997, and March 19, 1997, persistent foam was discharged and was observed for long periods of time (well over 30 minutes) at both the culvert under Aviation Boulevard and at the former Hollins Ferry Road culvert along Muddy Bridge Branch during deicing events. The latter point is approximately 0.9 miles from the discharge. The foam on March 1, 1997 and March 19, 1997 extended a considerable distance downstream.

Document Continued