52. On information and belief, persistent foam was discharged from BWI in violation of the Permit on additional occasions.

Toxicity Of The Discharges and Violations of State Water Quality Standards

53. An outfall is a point at which water is discharged into another body of water and is a point source within the meaning of Section 301 of the CWA, 33 U.S.C. 1311.

54. The Permit applies to discharges from BWI Airport to "Stony Run (outfalls 001 and 003) and Sawmill Creek (outfalls 006 and 007) and to Cabin Branch which are protected for water contact recreation, fishing, aquatic life, and wildlife." The Permit specifies monitoring points upstream of the outfalls to assess compliance with discharge limits measured at these outfalls. For example, monitoring point 703 precedes outfall 007 and monitoring point 306 precedes outfall 003.

55. The Permit provides that the SWPPP "shall include a complete discussion of measures taken to conform with . . . applicable State rules, regulations, and guidelines." Maryland water quality regulations prohibit discharge of "[1] any material including floating debris, oil, grease, scum, sludge and other floating materials . . . in amounts sufficient to: (a) Be unsightly; (b) Produce taste or odor; (c) Change the existing color; (d) Change other chemical or physical conditions in the surface waters; (e) Create a nuisance; or (f) Interfere directly or indirectly with other uses; and [2] high-temperature, toxic, corrosive substances . . . in concentrations or combinations which: (a) Interfere directly or indirectly with designated uses; or (b) Are harmful to human, animal, plant or aquatic life."

56. The Permit further provides that MAA "shall take all reasonable steps to minimize or prevent any adverse impact to waters of the State or to human health resulting from noncompliance with any effluent limitation specified in this permit."

57. The Permit further provides that MAA "shall comply at all times with the provisions of the Environment Article, Title 7, Subtitle 2 and Title 9, Subtitle 3 of the Annotated Code of Maryland and the Clean Water Act, 33 U.S.C. 1251 et seq." The Annotated Code of Maryland provides that all discharges must meet applicable state and federal water quality standards.

58. On numerous occasions, pollutants were discharged from BWI causing violations of state water quality standards in violation of the Permit.

59. Very high concentrations of glycol compounds are discharged from the airport. These discharges are sufficient to harm aquatic and terrestrial life (including companion animals), cause discoloration, change chemical characteristics in the surface waters, produce taste and odor, and create a nuisance. These discharges thus violate effluent limitations or conditions of the Permit.

60. The DMR filed by MAA for monitoring point 703 for the first quarter of 1997 shows average BOD of 28,150 milligrams per liter (mg/l) and a maximum of 90,000 mg/l. Average total glycol concentration for this period was 6,430 mg/l, with a maximum of 11,629 mg/l. Monitoring at outfall 007 for the same period shows average BOD of 4,100 mg/l, maximum BOD of 9,000 mg/l, average total glycol of 3,011 mg/l, and maximum total glycol of 5,710 mg/l. The DMR for monitoring point 703 covering the last quarter of 1995 shows average total glycol of 5,673 mg/l and maximum total glycol of 9,310 mg/l. The first quarter 1996 DMR for monitoring point 703 reports average total glycol of 4,612 mg/l and maximum total glycol of 10,900 mg/l. These discharges constitute separate and repeated violations of water quality prohibitions and thus of the conditions of the Permit.

61. Toxicity studies conducted by Maryland Environmental Service (MES) on behalf of MAA also show significant toxicity for samples collected on February 14, 1997 at outfall 007 and monitoring points 306 and 703. For example, the sample collected at outfall 007 was toxic to 50% of a population of daphnids even when diluted to 39% of the original concentration. At monitoring points 703, the sample was equally toxic even when diluted to 15% of the original concentration. Thus, even when diluted over six times, the discharge was still highly toxic to aquatic life. During storm or snowmelt events, the water in the stream is almost entirely made up of stormwater discharges from BWI Airport.

62. Residents of the area downstream from BWI have witnessed large quantities of foam and experienced nausea from the odor of decomposing glycol compounds in Muddy Bridge Branch of Sawmill Creek since at least September 1995. A video shot on various dates between February 8, 1997 and August 3, 1997, and a March 1997 report by the Allwood Community Association evidence discoloration in the Muddy Bridge Branch of Sawmill Creek on nine occasions due to the presence of glycol compounds.

FIRST CAUSE OF ACTION (CWA)

63. Defendant's discharges of stormwater pollution are discharges of pollutants from a point source or sources into navigable waters of the United States within the meaning of Sections 301 and 402 of the CWA, 33 U.S.C. 1311 and 1342.

64. Defendant is prohibited from discharging stormwater except in full compliance with the specific terms set forth in the Permit. Defendant must also comply with all other terms of the Permit, including the monitoring and planning requirements.

65. Defendant has failed to adopt an adequate SWPPP as required by the Permit. The SWPPP is inadequate and Defendant knew or should have known from the date of the plan's initial submission that the SWPPP was inadequate at that time.

66. Defendant has failed to monitor adequately discharges as required by the Permit.

67. Defendant has failed to measure accurately the amount of deicing fluids applied and compromised the accuracy of the entire tracking system.

68. Defendant has failed to reduce the total volumes of deicing fluids discharges from BWI to 50% or less of the total volume of deicing fluids applied at BWI.

69. Defendant has failed to plan and schedule for additional deicing fluid control facilities.

70. Defendant has failed to amend the SWPPP when that plan proved inadequate to meet the requirements of the Permit.

71. Defendant and BWI has discharged pollutants and persistent foam in more than trace amounts.

72. Defendant's and BWI's discharges of non-stormwater and stormwater, failure to adopt an adequate SPPPP, failure to amend the SWPPP, failure to monitor adequately discharges, failure to track adequately glycol, failure to reduce the amount of deicing fluid discharged, and failure to plan and to schedule for additional deicing fluid control facilities violate the Permit.

73. Defendant's violations of the Permit are violations of Sections 301(a) and 402(k) of the CWA, 33 U.S.C. 1311(a) and 1342(k). Upon information and belief, Defendant continues to violate Sections 301(a) and 402(k) of the CWA, 33 U.S.C. 1311(a) and 1342(k), and future violations are imminent.

74. Defendant and BWI discharge pollutants into waters regulated by the State of Maryland and subject to State Water Quality Standards. Defendant's and BWI's discharges in violation of State Water Quality Standards constitute violations in excess of effluent limitations or conditions imposed by the Permit.

75. Defendant's violations of State Water Quality Standards violate Section 301(a) of the CWA, 33 U.S.C. 1311(a). Upon information and belief these violations are continuing and future violations are imminent.

76. Plaintiffs have no adequate remedy at law.

SECOND CAUSE OF ACTION (CERCLA)

77. Ethylene glycol, as well as several other chemicals used at BWI, is a listed hazardous substance within the meaning of CERCLA. 40 C.F.R. Table 302.4.

78. Since July 1995, the reportable quantity of ethylene glycol has been 5,000 pounds per day; prior to that date the reportable quantity was one pound per day.

79. The EPA has determined that Defendant must aggregate all releases at BWI for reporting purposes. Any use of ethylene glycol that is not performed entirely indoors and contained constitutes a "release." See 42 U.S.C. 9601(22), 40 C.F.R. 302.3. See also 42 U.S.C. 9601(8). BWI does not qualify for, and has not sought to qualify for, the limited exception to this requirement.

80. BWI is a facility under 42 U.S.C. 9601(9). Mathison is a person in charge and control of the facility.

81. Ethylene glycol has been released in amounts over the reportable quantity from BWI on at least eight separate occasions. Using the average non-recovery of ethylene glycol (83.9% in the 1994 to 1995 season, 65.3% in the 1995 to 1996 season, and 68.1% in the 1996 to 1997 season), the amount of ethylene glycol discharged is derived from the known amount applied. MAA has identified two types of deicing mixtures; Type 1 has the lowest concentration of ethylene glycol at 42% of the total. Using this as the most conservative scenario, MAA's data shows that BWI released ethylene glycol in amounts over the reportable quantity on the following dates:

These data may underestimate the number of days because they do not account for actual West Mode operations, instead using the average recovery rates for the dates in question. On information and belief, because of the reduced recovery rates in West Mode, reportable quantities of ethylene glycol were released from BWI on additional days.

82. Defendant has also released ethylene glycol in amounts over the reportable quantity from BWI on at least three other occasions. According to MAA, its the deicing fluid used at BWI has a maximum concentration of 59% ethylene glycol. Taking a moderate assumption that the ethylene glycol concentration averaged 50%, MAA’s data show that ethylene glycol was released in amounts over the reportable quantity on the following additional dates:

As mentioned in the preceding paragraph, these data may underestimate the number of days that Mathison released reportable quantities.

83. Moreover, it is likely that the amount calculated is an underestimate of the total the total amount of ethylene glycol released to the environment. The model used by MAA to calculate glycol runoff amounts assumes 10% of glycol applied to an airplane infiltrates into the ground and 4% remains adhered to the airplane. If this 10% loss is factored into the discharge, as it should be, then ethylene glycol was released to the environment above the reportable quantity on the following dates:

84. Deicing fluids include many other hazardous substances that may have a reportable quantity under CERCLA. On information and belief, additional hazardous substances were discharged in amounts in excess of these reportable quantities.

85. The above-mentioned releases were not federally permitted releases.

86. Defendant knew or should have known that it released deicing fluids, and ethylene glycol in particular.

87. Defendant failed to report and to give immediate notice to the National Response Center of all releases of hazardous substances, including ethylene glycol, in excess of reportable quantities as soon as it had knowledge of that release.

88. Defendant's failure to report and to give immediate notice to the National Response Center all releases of hazardous substances, and ethylene glycol in particular, in excess of the reportable quantities violated and continues to violate Section 103(a) of CERCLA, 42 U.S.C. 9603(a), and its implementing regulation, 40 C.F.R. 302.6.

89. Defendant's inadequate tracking and monitoring systems are likely to result in future violations of Section 103(a) of CERCLA, 42 U.S.C. 9603(a), and its implementing regulation, 40 C.F.R. 302.6.

90. Plaintiffs have no adequate remedy at law.

THIRD CAUSE OF ACTION (EPCRA)

91. Hazardous substances, and ethylene glycol in particular, were released from BWI in excess of reportable quantities in violation of Sections 103 of CERCLA, 42 U.S.C. 9603.

92. Defendant failed to report all releases of hazardous substances, including ethylene glycol, in excess of the reportable quantities, to the state emergency planning commission and the relevant local emergency planning committees.

93. Defendant's failure to report the release to the state emergency planning commission and the relevant local emergency planning committees violated and continues to violate Section 304(a) and (c) of EPCRA, 42 U.S.C. 11004(a) and (c), and its implementing regulation, 40 C.F.R. 355.40(b)(2).

94. Defendant's inadequate tracking and monitoring systems are likely to result in future violations of Section 304(a) and (c) of EPCRA, 42 U.S.C. 11004(a) and (c), and its implementing regulation, 40 C.F.R. 355.40(b)(2).

95. Plaintiffs have no adequate remedy at law.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully request that this Court:

A. Enter judgment declaring that Defendant has violated the CWA by failing to comply with the Permit;

B. Enter judgment declaring that Defendant has violated CERCLA and EPCRA by failing to report releases of hazardous substances;

C. Issue an injunction compelling Defendant to comply with the CWA and each specific term of the Permit;

D. Issue an injunction compelling Defendant to comply with its reporting requirements under CERCLA and EPCRA;

E. Award Plaintiffs their costs of suit, including reasonable attorney and expert witness fees, pursuant to Section 505(d) of the CWA, 33 U.S.C. 1365(d), Section 310(f) of CERCLA, 42 U.S.C. 9659(f), and Section 326(f) of EPCRA, 42 U.S.C. 11046(f); and

F. Grant Plaintiffs such further relief as may be appropriate.

Dated: March 16, 1998
New York, New York

Respectfully Submitted,

SCHULTHEIS & WALTON, P.A.

By:____________________________
     Simon Walton (Federal Bar # 24002)
4635 Falls Road
Baltimore, MD 21209
410-235-6425


NATURAL RESOURCES DEFENSE
     COUNCIL, INC.

By:____________________________
     Peter Lehner* 
     Nancy Marks*
40 West 20th Street
New York, New York 10011
(212) 727-4425

*Application for Admission Pro Hac Vice to be Submitted.

Attorneys for Plaintiffs