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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 01779 September Term, 2009

ENVIRONMENTAL INTEGRITY PROJECT, ET AL. v. MIRANT ASH MANAGEMENT, LLC, ET AL.

Woodward, Matricciani, Moylan, Charles E., Jr. (Retired, Specially Assigned), JJ.

Opinion by Matricciani, J.

Filed: December 29, 2010

Appellants, the Environmental Integrity Project ("EIP"), the Potomack Riverkeeper ("PRK"), and several individual Maryland citizens ("Individual Appellants") (collectively, "appellants") appeal the denial of their motion to intervene in the Circuit Court for Charles County. Appellants sought to intervene in an action filed by the Maryland Department of the Environment ("MDE") against Mirant Maryland Ash Management, LLC, and Mirant Mid-Atlantic, LLC (collectively, "Mirant") seeking injunctive relief and civil penalties for alleged violations of the Clean Water Act at one of Mirant's facilities. Appellants present two issues for our consideration, which we have rephrased as such: I. Whether the circuit court erred in denying appellants' motion for intervention as a matter of right. II. Whether the circuit court erred in denying appellants' motion for permissive intervention. For the reasons set forth below, we answer both questions in the negative, and we affirm the judgment of the circuit court.1 FACTS Appellees lease and operate two power plants in Southern Maryland, including the Morgantown Generation Station in Morgantown, Maryland. The Morgantown plant generates electricity through the combustion of coal, which produces waste byproducts
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In their brief, appellees have also argued that appellants should be prohibited from recovering attorney's fees. Appellants never addressed this issue in their briefs. Based on our holding, however, we believe this issue is moot, and we decline to answer this question in the present appeal.

(hereinafter referred to as coal combustion byproducts, or "CCBs"), including fly ash.2 In order to dispose of the fly ash and other waste products created by their power plants, appellees own and operate the Faulkner Fly Ash Storage Facility near La Plata, Maryland.3 The Faulkner facility was previously owned and operated by the Potomac Electric Power Company (PEPCO). Appellant Environmental Integrity Project4 is a nonprofit organization based in Washington, DC, that advocates for the enforcement of environmental laws, focusing on coal-burning plants, refineries, and factory farms. Appellant Potomac Riverkeeper5 is a nonprofit organization that advocates for the creation of new laws and the enforcement of existing state and federal laws affecting the Potomac River watershed. The five individual appellants are persons whose homes are located within ten to fifteen miles of the Faulkner facility, on either the Wicomico River or Potomac River. On December 18, 2000, MDE and PEPCO, appellee's predecessor at the Faulkner facility, entered into a Complaint and Consent Order, through which the parties agreed

Fly ash is only one type of CCB. Other such byproducts generated when coal is burned for electricity include bottom ash, boiler slag, and pozzolan. These substances are filtered by air pollution control devices, and the residue is commonly disposed and stored in facilities like the Faulkner site. The Faulkner facility consists of approximately 900 acres, 180 acres of which has been utilized specifically for the disposal of fly ash, bottom ash, and other CCBs generated by the Morgantown Generation Station.
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See http://www.environmentalintegrity.org/index.php for more information. See http://www.potomacriverkeeper.org/ for more information. -2-

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that PEPCO, and subsequently Mirant, would be responsible for installing a water treatment system to address discharges from the fly ash material to surface water and groundwater.6 Appellees maintain that this water treatment system was put in place and that it was in conformity with MDE regulations. On April 2, 2008, EIP and PRK sent a letter to Mirant's leadership notifying Mirant of their intent to sue for violations of the Clean Water Act at the Faulker facility. In its letter, EIP explained that its research indicated that the levels of toxic pollutants being discharged from the facility were in excess of Maryland's water quality criteria, among other violations. On May 29, 2008, MDE filed a civil enforcement action seeking injunctive relief and civil penalties pursuant to Md. Code Ann. (1982, 2007 repl. vol.), Environment Article

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