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Potomac Riverkeeper, Inc. v. Maryland Department of Environment

Court of Special Appeals of Maryland

July 26, 2018

POTOMAC RIVERKEEPER, INC. D/B/A POTOMAC RIVERKEEPER NETWORK
v.
MARYLAND DEPARTMENT OF THE ENVIRONMENT, et al.

          Circuit Court for Allegany County Case No.: C-14-41065

          Woodward, C.J., Meredith, Friedman, JJ.

          OPINION

          Meredith, J.

         The Upper Potomac River Commission, an appellee and cross-appellant, is a Maryland agency that operates a wastewater treatment facility in Allegany County, Maryland. Potomac Riverkeeper Network ("Potomac Riverkeeper"), appellant, appeals the issuance of a renewed National Pollution Discharge Elimination System permit (an "NPDES permit") that was issued to Upper Potomac River Commission by the Maryland Department of the Environment ("MDE"), also an appellee. The renewed NPDES permit authorizes Upper Potomac River Commission to discharge treated water containing residual amounts of certain pollutants into the North Branch Potomac River. A brief was also filed by Luke Paper Company, another appellee, which operates the paper mill that contributes the majority of the wastewater treated at the Upper Potomac River Commission plant.[1] The Chesapeake Bay Foundation, Inc., submitted a brief as amicus curiae.

         After MDE published notice of its final determination to renew Upper Potomac River Commission's permit, Potomac Riverkeeper filed a petition for judicial review in the Circuit Court for Allegany County, challenging MDE's decision. Pursuant to Maryland Code (1982, 2013 Repl. Vol.), Environment Article ("EN"), §§ 1-601 et seq., Potomac Riverkeeper argued in the circuit court that a remand of the permit renewal case to MDE is required because certain grounds for objections to the permit were not reasonably ascertainable during the public comment period, or, in the alternative, because the grounds for Potomac Riverkeeper's objections had not arisen until after the close of the comment period. The circuit court denied Potomac Riverkeeper's request for a remand and affirmed MDE's final determination to issue the renewed NPDES permit. This appeal followed.

         QUESTIONS PRESENTED

         Potomac Riverkeeper presents the following questions for our review: [2]

1. Does § 1-601(d) of the Environment Article require a reviewing court to remand a permit to MDE when the petitioner demonstrates that an objection was not reasonably ascertainable during the comment period or that the grounds for an objection arose after the comment period?
2. Should the Court remand the permit to MDE for consideration of Potomac Riverkeeper's objection to the new methodology for calculating [Upper Potomac River Commission's] nitrogen and phosphorus discharges, since MDE did not incorporate that methodology into the permit until after the close of the comment period?
3. Should the Court remand the permit to MDE for consideration of Potomac Riverkeeper's objection that the permit is inconsistent with Maryland law and fails to protect the North Branch, since that objection is based on events and state agency investigations that occurred more than a year after the close of the comment period?

         In addition to the questions presented by the appellant, Upper Potomac River Commission presents the following question as cross-appellant: "Whether the Circuit Court erred in not granting Responder [sic] Upper Potomac River Commission's Motion to Dismiss Appellant's original Petition for Review for failure to Comply with the Maryland Code, Time for Filing."

         We conclude that Potomac Riverkeeper's petition was timely filed, and answer "no" to Upper Potomac River Commission's question asking whether the circuit court erred in failing to dismiss the petition for judicial review. With respect to Potomac Riverkeeper's contentions, we hold that the circuit court did not err in declining to remand the permit to MDE. Accordingly, we shall affirm the judgment of the Circuit Court for Allegany County.

         FACTS AND PROCEDURAL BACKGROUND

         The Upper Potomac River Commission

         The Upper Potomac River Commission is "a state agency within the Department of Natural Resources created by an act of the Maryland [General Assembly] in 1936. The [Upper Potomac River] Commission operates the Savage River Dam six miles west of Luke[, Maryland, ] and the waste treatment facility in Westernport . . . ." See "MDE Industrial Discharge Permits Division-Water Management Administration Summary Report and Fact Sheet 0230.UPRC.2013.fs.doc" (hereinafter "Summary Report and Fact Sheet"). The Summary Report and Fact Sheet provides this background information:

The [Upper Potomac River Commission] waste treatment facility was constructed in 1960 principally to treat wastewater from the New Page (previously known as Westvaco) paper mill in Luke. It also handles municipal waste from the towns of Luke and Westernport, Maryland and Piedmont, West Virginia. It treats an average of 22 million gallons per day of wastewater received from these sources in an activated sludge process. Because this plant is primarily an industrial wastewater treatment plant, several treatment steps that are not typical of activated sludge sewage plants are necessary. They include: pH control (the addition of sodium hydroxide or sulfuric acid as necessary), cooling (necessary to protect the treatment plant bacteria in the summer and to allow the plant discharge to meet the temperature and dissolved oxygen limits), and nutrient addition capability (addition of aqueous ammonia and phosphoric acid). The effluent from this plant (Outfall 001) is discharged into the North Branch Potomac River through a dispersion structure that is designed to mix the effluent with the River.

(Emphasis added.)

         The Clean Water Act and the National Pollution Discharge Elimination System

         The Clean Water Act (the "CWA") was enacted by Congress in 1972. In order to fulfill its stated goal to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters," the CWA prohibits the discharge of "any pollutant by any person." 33 U.S.C. § 1251(a); 33 U.S.C. § 1311. This prohibition applies to the discharge of pollutants through a "point source." NPDES Permit Basics, EPA.gov (June 13, 2018), https://perma.cc/RUN4-HUGX. 33 U.S.C. § 1362(14) defines a "point source" as

any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture.

         Despite the CWA's facially total prohibition of the discharge of any pollutant, the CWA establishes a permitting system whereby holders of permits may discharge some amount of pollutants into waterways. See, e.g., Piney Run Preservation Ass'n v. County Com'rs of Carroll County, MD, 268 F.3d 255, 265 (4th Cir. 2001). The Court of Appeals explained in Maryland Dept. of Env. v. Anacostia Riverkeeper, 447 Md. 88, 96 (2016): "Through the National Pollution Discharge Elimination System ('NPDES'), 33 U.S.C. § 1342, either the [United States] Environmental Protection Agency ('EPA') or an EPA-approved state, such as Maryland, may issue permits exempting a discharger from this [facially total] prohibition." NPDES permits issued by a state entity must contain water quality standards that meet or exceed federal standards.

         In Anacostia Riverkeeper, the Court of Appeals provided this explanation of the NPDES permitting process as it operates in Maryland:

MDE is the authority in Maryland that administers the NPDES program. Code of Maryland Regulations ("COMAR") 26.08.04.07. An NPDES permit, however, does not give a discharger carte blanche. "Generally speaking, the NPDES requires dischargers to obtain permits that place limits on the type and quantity of pollutants that can be released into the Nation's waters." S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe, 541 U.S. 95, 102, 124 S.Ct. 1537, 158 L.Ed.2d 264 (2004). These limits are called effluent limitations. See 33 U.S.C. § 1362(11) (defining an effluent limitation as "any restriction established by a State or the Administrator on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into navigable waters, the waters of the contiguous zone, or the ocean, including schedules of compliance"). The type of discharge determines the type of limitations the permit must impose on the discharger.

Id. (emphasis added).

         As provided by COMAR 26.08.04.06(1): "The term of each [NPDES] discharge permit shall be for a maximum of 5 years, unless the permit is previously amended, suspended, or revoked."

         In the present case, Upper Potomac River Commission is considered a point source under the CWA. Consequently, it needs an NPDES permit to discharge its effluent into the North Branch Potomac River, and the NPDES permit must impose effluent limitations that meet or exceed federal standards. EN § 9-324(a).

         Total Maximum Daily Loads ("TMDLs")

         Total Maximum Daily Loads (hereinafter "TMDLs") - an important focus of Potomac Riverkeeper's contentions on appeal - "arise out of a multi-step process [under the CWA] that begins with the establishment of water quality standards ('WQS')." Anacostia Riverkeeper, supra, 447 Md. at 101. In Anacostia Riverkeeper, id. At 101-04, the Court of Appeals explained:

Water quality standards, as the term itself suggests, protect water quality. 40 C.F.R. § 130.2(d); COMAR 26.08.02.01(A). Each state must set water quality standards by assigning a "use" to a water, such as recreation or fishing, then developing criteria to protect those uses, as well as ensuring that higher quality waters do not degrade to the minimally accepted standard (also known as an anti-degradation policy). 33 U.S.C. § 1313; COMAR 26.08.02.01(B)(1). All water quality standards are subject to EPA review, and if the EPA does not approve of them, the EPA will set those standards itself. 33 U.S.C. § 1313.
After setting WQSs, the states establish effluent limitations in permits as the primary way to meet the WQSs because, as we have explained, effluent limitations restrict the discharge of pollutants. See 33 U.S.C. § 1362(11). . . . Congress requires that "[e]ach State shall identify those waters within its boundaries for which the effluent limitations required by [33 U.S.C. § 1311] are not stringent enough to implement any water quality standard applicable to such waters." 33 U.S.C. § 1313(d)(1)(A).
This is where the TMDL comes into play. The TMDL tells a state what is the threshold amount of a pollutant that a body of water can tolerate before violating the WQS. See In re City of Moscow, Idaho, 10 E.A.D. 135, 2001 WL 988721, at *4 (EAB July 27, 2001) ("A TMDL is a measure of the total amount of a pollutant from point sources, nonpoint sources and natural background, that a water quality limited segment can tolerate without violating the applicable water quality standards."); EPA, Chesapeake Bay TMDL § 1.1, at 1-2 ("A TMDL specifies the maximum amount of a pollutant that a waterbody can receive and still meet applicable WQS.").
States must establish TMDLs "at a level necessary to implement the applicable water quality standards," 33 U.S.C. § 1313(d)(1)(C), when they identify those waters for which effluent limitations cannot implement the WQSs, 33 U.S.C.§ 1313(d)(1)(A). As with water quality standards, the states have the obligation of setting TMDLs and submitting them to the EPA for approval. See supra MDE, John Creek Basin TMDL (The EPA approved of MDE's TMDL in March 2007.). If the EPA disapproves of the TMDLs, the EPA will set them itself. 33 U.S.C. § 1313(d)(2).
For this case, [waste load] allocations ("WLAs") are the most critical part of the TMDL equation. See 40 C.F.R. § 130.2(i) (A TMDL is "[t]he sum of the individual WLAs for point sources and LAs [load allocations] for nonpoint sources and natural background."). The WLA represents a water's "loading capacity" assigned to its "point sources of pollution." Id. § 130.2(h) . . . .
Although TMDLs are informational tools, of which WLAs are a part, WLAs are more akin to restrictions. See Am. Farm Bureau Fed'n v. EPA, 984 F.Supp.2d 289, 328 (M.D.Pa.2013) ("WLAs are not permit limits per se; rather they still require translation into permit limits . . . .") (citation omitted) (internal quotation marks omitted) (emphasis in original), aff'd, 792 F.3d 281 (3d Cir.2015). Under 40 C.F.R. § 122.44(d)(1)(vii)(B), permitting authorities must ensure that effluent limitations "are consistent with the assumptions and requirements" of any approved WLA.

(Emphasis added; footnotes and some internal citations omitted.)

         On December 29, 2010, the EPA issued the "Chesapeake Bay Total Maximum Daily Load for Nitrogen, Phosphorus and Sediment" (the "Bay TMDL"). The EPA explained that the Bay TMDL "responds to consent decrees in Virginia and the District of Columbia from the late 1990s." The Bay TMDL "identifies the necessary pollution reductions of nitrogen, phosphorus and sediment across Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia, and the District of Columbia and sets pollution limits necessary to meet applicable water quality standards in the [Chesapeake] Bay and its tidal rivers and embayments."

         The Bay TMDL allocates 79, 218 pounds of nitrogen and 30, 773 pounds of phosphorus per year to the Upper Potomac River Commission's waste treatment operation. According to the Bay TMDL, the models upon which these calculated limits are based "all include the loads from natural background conditions because all the Bay models are mass balance models and are calibrated to observed conditions." The Bay TMDL explains:

Natural loads of nitrogen, phosphorus, and sediment from forested land are also part of the monitored load at the free-flowing stream, river, and river input monitoring stations throughout the Chesapeake Bay watershed. Because the loads are part of the total loads to which the Chesapeake Bay Program's mass balance models are calibrated, the natural nitrogen, phosphorus, and sediment loads in the system, while small, are fully accounted for in the Bay TMDL assessment.

         The Permit Renewal Process[3]

         On April 22, 2005, Upper Potomac River Commission applied to MDE for renewal of its NPDES effluent discharge permit. On May 2, 2005, MDE notified Potomac Riverkeeper and other interested parties that "the facility discharge permit is up for renewal."

         Public Notice and Opportunities for Comment

         Subsequent to interested parties receiving notice of the treatment facility's application for a renewed permit, MDE received written input from persons concerned about the water quality of the North Branch Potomac River. One such letter, dated July 11, 2005, was authored by Kenneth Pavol on behalf of the Western Maryland Professional Guides Association. Mr. Pavol works as a professional fishing guide on the North Branch. Mr. Pavol's letter stated that, until his retirement several months earlier, he had been employed by the Maryland Department of Natural Resources Fisheries Service for 31 years. Mr. Pavol's letter raised concerns about the color and turbidity of the North Branch downstream from Upper Potomac River Commission. He stressed that "the typical reaction of visiting anglers when they first observe the outfall [i.e., discharge of water] of the [Upper Potomac River Commission] treatment is disbelief that the discharge is legal or even possible in 2005."

         Mr. Pavol also stated: "Although each permit renewal since 1990 has resulted in improvements to the [] discharge from the [Upper Potomac River Commission] plant, there is certainly room for further progress." Mr. Pavol took issue with the permit's measurement of effluent discharges on a monthly basis, which, according to Mr. Pavol, allowed for significant day-to-day variance in the appearance and odor of the North Branch. He noted that, as a result of "the apparent wide variation in daily levels of suspended solids in the effluent from the [Upper Potomac River Commission] plant, . . . the North Branch becomes highly discolored for many miles downstream, with higher levels of the associated odor as well." He stated: "[T]he wide variation in effluent quality makes it very difficult to make a case for improved conditions and provide a high quality fishing experience." Mr. Pavol also stressed that "[t]he [use of a] monthly requirement simply does not adequately or consistently protect downstream water quality, angling quality, [a]esthetics, and quite possibly, the fishery resource as well."

         MDE held an informational meeting on September 5, 2005. A representative of Potomac Riverkeeper attended the meeting, at which the "main questions were directed toward treatment of color."

         In an 18-page letter dated April 17, 2006, Potomac Riverkeeper also submitted written comments to MDE addressing the application for renewal of Upper Potomac River Commission's NPDES permit. Potomac Riverkeeper's letter encouraged MDE to impose stricter limits on the permitted discharges of nutrients, and urged MDE to "revise the [Upper Potomac River Commission] permit to contain enforceable effluent limits on nitrogen and phosphorus" rather than mere "goals" that had been included in the previously-issued permit. Potomac Riverkeeper acknowledged that Special Condition A.1 of the existing permit "specifies that these 'goals' will be revised and converted to enforceable effluent limitations upon completion of a Total Maximum Daily Load (TMDL) for the North Branch Potomac River." Id. at 2. But Potomac Riverkeeper explained its objection to continuing that approach in a renewal permit: "[S]ince it is uncertain whether a TMDL will be developed for nutrient loading to the North Branch of the Potomac anytime soon, and since the North Branch remains impaired because of nutrients, Potomac Riverkeeper urges MDE to revise the [Upper Potomac River Commission NPDES] permit to contain enforceable effluent limits on nitrogen and phosphorus." Id. at 3.

         The comments submitted by Potomac Riverkeeper on April 17, 2006, also urged MDE to require a reduction of the discharges that affect color, and asserted that, in the data reporting effluent measurements taken during 2003 through 2005 (submitted with the application for renewal), "[t]here is not a single reported instance in which the facility is in compliance with its effluent limit relating to color. Not only is the facility never in compliance, but it is drastically out of compliance with respect to color."

         In additional written comments submitted to MDE on December 20, 2006, Potomac Riverkeeper again reiterated that it had "major concerns involv[ing] the discharge of excessive color from the [Upper Potomac River Commission] facility."

         The Bay TMDL

         On December 29, 2010, the EPA issued its Bay TMDL report.

         MDE's Tentative Determination

         On February 13, 2013, MDE notified interested parties of its "tentative determination," pursuant to EN § 1-604(a)(1), to renew the Upper Potomac River Commission NPDES permit. On February 19, 2013, MDE issued the draft permit, and on March 26, 2013, MDE held a public hearing to receive comments on the draft permit. At the hearing on March 26, 2013, MDE presented a summary of the proposed terms of the permit. The transcript of the public hearing is included in the record.

         In an "Overview of Permit Conditions" slide presentation, MDE explained that the renewed permit would impose more stringent limits on Upper Potomac River Commission's permission to discharge pollutants into the North Branch Potomac River. We shall provide a summary of MDE's explanation of the changes to several specific parameters that were included in the draft of the renewed permit.

         Total Suspended Solids ("TSS") and Turbidity

         The quantity of Total Suspended Solids in the body of water is a factor affecting the clarity or turbidity of the water, in addition to causing problems with the odor of the water. Turbidity is a measure of the cloudiness of water and is measured in nephelometric turbidity units ("NTUs"). Drinking water has a turbidity of 1 NTU.[4]

         MDE explained that the previously-issued permit's limits for Total Suspended Solids "were based on an evaluation of treatment performance during a five year period in the mid 1990s . . . . The proposed new limits are significantly more stringent." With respect to the limits in the Upper Potomac River Commission permit draft, MDE explained that "[t]he proposed end of pipe [monthly] average limit of 150 NTU and [daily] maximum of 300 NTU are new and much more stringent effluent limitations that are a result of a solids reduction program by the permittee. These limitations reflect a 62% reduction in allowed concentrations and corresponding loadings."

         Color

         MDE also noted that, in the renewal permit, the proposed end-of-pipe "color loading limit" would now be "expressed as a loading limit" calculated as a formula that "will achieve more consistent protection of stream color than a concentration limitation." According to MDE, "[c]olor is a complex characteristic and requires[] flexibility to implement additional recycling and water use reduction improvements that the previous permit's concentration limit would otherwise discourage or prevent." MDE further explained that the proposed in-stream color limitation for the proposed permit was 75 platinum-cobalt units ("PCU") as a weekly average, and 150 PCU as a daily maximum.

         Total Nitrogen Annual Maximum Loading Rate[5]

         With respect to the total nitrogen annual maximum loading rate, MDE stated:

[T]he allocation level [for total nitrogen] will be shown in the permit as a goal and not a limit.[6] Historical data over the past three years indicates that the facility achieves the [total nitrogen] loading allocation. While the assigned annual loading allocation is expressed as a goal, more stringent [total nitrogen] concentration limits of 3 mg/l monthly average and 6 mg/l daily maximum, limits which are not expected to inhibit the performance of the biological treatment system [utilized by the wastewater treatment plant to treat waste], are being added to the permit to ensure continued close attention to the [total nitrogen] levels.

         In the Summary Report and Fact Sheet, MDE noted that some amount of nitrogen can have a positive impact on water quality, and that point had been a consideration in establishing the above-quoted conditions in the draft permit:

[Upper Potomac River Commission] relies on addition of nitrogen as an essential treatment chemical for its biological treatment system, due to a lack of nitrogen in the untreated wastewater, necessary to meet technology based permit limits for BOD and [Total Suspended Solids]. Generally, EPA does not set effluent limits for parameters that are associated with wastewater treatment chemicals, assuming that system and site controls demonstrate good operation of the treatment technology. . . .

         Comments submitted in response to MDE's Tentative Determination

         Potomac Riverkeeper participated in the public hearing on March 26, 2013, and then submitted written comments to MDE on May 31, 2013. Among the concerns expressed in the written comments was ...


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