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Stevens v. Prettyman Manor Mobile Home Park Wastewater Treatment Plant

Court of Special Appeals of Maryland

June 27, 2018

ARLENE Q. STEVENS, ET AL.
v.
PRETTYMAN MANOR MOBILE HOME PARK WASTEWATER TREATMENT PLANT

          Circuit Court for Caroline County Case No. 05-C-15-018616

          Berger, Shaw Geter, Sharer, J. Frederick (Senior Judge, Specially Assigned), JJ.

          OPINION

          BERGER, J.

         This case is an appeal from a judgment entered on judicial review of an administrative decision. In 2015, the Maryland Department of the Environment ("MDE") issued a permit ("the Permit") to Prettyman Manor, LLC ("Prettyman"), appellee, to discharge treated wastewater into Little Creek, a tributary of the Choptank River. Arlene Q. Stevens and Mildred Quidas (collectively, "Stevens and Quidas"), appellants, filed a petition for judicial review in the Circuit Court for Caroline County. The circuit court affirmed MDE's decision to issue the discharge permit.

         On appeal, Stevens and Quidas present two questions for our review, which we have rephrased as follows:

1. Whether MDE failed to publish proper notice of Prettyman's application before issuing the Permit.
2. Whether the Permit allows an unlawful discharge of total suspended solids into an impaired water in violation of state and federal water quality standards.[1]

         For the reasons explained herein, we shall affirm the judgment of the circuit court.

         FACTUAL AND PROCEDURAL BACKGROUND

         I. Regulatory Background

         A. The Clean Water Act and the National Pollutant Discharge Elimination System

         Congress enacted the Clean Water Act ("the CWA") in 1972 to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). To this end, the CWA prohibits the discharge of any pollutant to waters of the United States without a permit issued through the National Pollutant Discharge Elimination System ("NPDES"). 33 U.S.C. § 1251(a)(1); 33 U.S.C. § 1311(a); 33 U.S.C. § 1342(a)(1).

         The CWA requires that every NPDES permit contain

(1) effluent limitations that reflect the pollution reduction achievable by using technologically practicable controls and

Piney See Run Preservation Ass'n v. Cnty. Commissioners of Carroll Cnty., 268 F.3d 255, 266 (4th Cir. 2001) (quoting Am. Paper Inst., Inc. v. U.S. E.P.A., 996 F.2d 346, 349 (D.C. Cir. 1993)).

         Pursuant to 33 U.S.C. § 1313(d), states are required to identify all waters within their respective boundaries where technology-based effluent limitations are inadequate to ensure that water quality standards are being met. For each impaired water, a state must establish a total maximum daily load ("TMDL") for every pollutant that is preventing the water from meeting water quality standards. 33 U.S.C. § 1313(d). Under 40 C.F.R. § 122.4(i), no permit may be issued "[t]o a new source or a new discharger, if the discharge from its construction or operation will cause or contribute to the violation of water quality standards." When an applicant for an NPDES permit proposes to discharge a pollutant into an impaired body of water subject to a TMDL for that pollutant, the applicant must demonstrate that

(1) [t]here are sufficient remaining pollutant load allocations to allow for the discharge; and

(2) [t]he existing dischargers into that segment are subject to compliance schedules designed to bring the segment into compliance with applicable water quality standards. The Director may waive the submission of information by the new source or new discharger required by paragraph (i) of this section if the Director determines that the Director already has adequate information to evaluate the request.

40 C.F.R. § 122.4(i).

         MDE is authorized to issue NPDES permits for discharges in Maryland. Maryland Code (1986, 2014 Repl. Vol., 2016 Supp.), § 9-324 of the Environment Article ("Env't"); see also Piney See Run Preservation Ass'n, supra, 268 F.3d at 266 (noting that "EPA has authorized approximately forty states, including Maryland, to issue NPDES permits"). When issuing NPDES permits for wastewater treatment plants ("WWTPs"), MDE must ensure that the proposed designs comply with technology-based effluent limitations as well as specific limitations for total suspended solids ("TSS"), biochemical oxygen demand, and pH levels. 40 C.F.R. § 133.100 et seq. Pursuant to 40 C.F.R. § 122.4(i), MDE must also ensure that a new discharge to an impaired body of water does not violate applicable TMDLs.

         B. Notice and Comment Procedures for NPDES Permits

         MDE is required to publish notice for each application for an NPDES permit. Env't § 1-603; Env't § 9-324. The notice of application must include the following information:

a) The name of the applicant;
b) The type of permit applied for;
c) The type of proposed discharge;
d) The volume of the proposed discharge;
e) The location of the proposed discharge;
f) A statement that persons may review and copy the application or related material and the procedure for doing so;
g) A statement that the Department shall hold an informational meeting, if a person makes a written request within 10 working days of the publication of the notice, and the procedure for requesting an informational meeting; and
h) Other information the Department determines is necessary for adequate public notification.

COMAR 26.08.04.01-1(D).

         Upon receiving an application for an NPDES permit, MDE "shall prepare a tentative determination[.]" Env't § 1-604; COMAR 26.08.04.01-2(B)(1)(a). MDE must then publish -- or require the applicant to publish -- a notice of tentative determination that includes the following information:

(i) The information in §B(1)(a) of this regulation;[2]
(ii) The procedures for a person to review and copy the tentative determination, draft permit, or related material;
(iii) A statement allowing 30 days for public comment to the notice of tentative determination before the issuance of the final determination and the ...

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