BALTIMORE — A Baltimore City Circuit Court judge tossed on Thursday the first of three challenges filed by Exelon Corporation in response to stringent requirements placed by the state on a permit its required to obtain to operate the Conowingo Dam in the long-term.
In her dismissal ruling, Circuit Court Judge Pamela J. White cited her primary reasoning as the fact that Exelon has yet to exhaust its administrative challenges with the Maryland Department of the Environment. The company has filed a request for reconsideration with the department, and, if still unsatisfied, could file an administrative appeal over the permit.
“There is no final administrative decision ripe for judicial review,” the judge wrote in her ruling.
Along with its administrative challenge to MDE, Exelon has also filed a lawsuit against the state in U.S. District Court. As of Tuesday, a judge’s ruling on the state’s motion to dismiss in that case was also still being awaited.
On Thursday, Gov. Larry Hogan touted his administration’s work toward water quality improvements in the Chesapeake Bay and his tough stance on drawing more resources from neighboring states as well as Exelon.
“Maryland is making historic progress in reducing pollution in the Chesapeake Bay. The bay recently received its highest water quality rating ever reported, but all of our progress could be at risk if we do not pursue a comprehensive regional approach to reducing pollution in the Susquehanna River,” Hogan said in a statement. “As the dam’s operator, Exelon has a critical role to play in a comprehensive strategy for bay restoration, and we are committed to working with all partners to obtain this vital water quality certification so we can preserve the bay for future generations.”
In his own Thursday statement, Maryland Environment Secretary Ben Grumbles said the water quality certificate put forward by his department “includes responsible and necessary conditions based on sound science and the law,” adding that the court’s decision was “great news for clean water and a step forward in the restoration of the Chesapeake Bay.”
In its suit in the state court, Exelon had argued, among other reasons, that because MDE had filed its water quality certificate with the Federal Energy Regulatory Committee (FERC) as part of Exelon’s federal relicensing process, that it had suffered “irreparable injury” because it would have to “immediately commence costly work and thus alter its practices almost at once.”
White disagreed, citing that fact that FERC’s licensing is unresolved and that Exelon has received numerous annual license renewals from the state since 2012.
The Chicago-based energy company has been seeking a new 50-year operating license from the federal government for the Conowingo Dam. In order to obtain that, however, it needs a state-issued water quality certificate.
Eager to address decades of built-up sediment behind the 90-year-old Conowingo Dam — which is scoured by storm events, depositing pollution into the Chesapeake Bay — the Hogan administration placed a number of weighty demands on its certificate. Among those conditions is the reduction of millions of pounds of nitrogen and phosphorus pollution that flows past the dam annually, or an annual payment in lieu of to the state of more than $170 million per year.
In its defense, Exelon has argued that the dam does not create any pollution, and enforcement actions should be aimed at upstream states, like Pennsylvania and New York, where runoff creates most of the pollution that ends up in the bay.
“Exelon Generation shares the state of Maryland’s commitment to restoring and sustaining the health of the Chesapeake Bay,” the company said in a Thursday statement. “The cleanup of pollution and debris is a basin-wide issue that must be collectively addressed by upstream states, which are the source of the pollution, not the Conowingo Dam which does not produce any pollution or debris. We will continue to contest the MDE 401 Certification, which sets a precedent of assigning sole responsibility for pollution to the Conowingo Dam.”