Assateague Coastkeeper v. Maryland Department of the Environment

GRAEFF, J. This appeal involves the propriety of regulation by the Maryland Department of the Environment (“MDE”), appellee, of Animal Feeding Operations (“AFOs”), facilities that house animals. 1 AFOs produce large quantities of animal manure each year, which is applied to crops in place of chemical fertilizer. The manure contains nutrients that, if improperly managed, contribute to water quality problems for lakes, rivers, and groundwater. As discussed in more detail, infra, both federal and state law prohibit discharges of pollutants to water, except as authorized by permit. The challenge here is to the decision by MDE to issue a General Discharge Permit for AFOs (the “GP”).

The GP authorizes certain discharges, but it imposes ⁶⁶⁹ requirements regarding the management of manure and its application as fertilizer. Both parties have represented that the GP primarily impacts poultry farms on the Eastern Shore. Appellants, Assateague Coastkeepers, Waterkeeper Alliance, Lower Susquehanna Riverkeeper, and Charles and Betty Schelts, acknowledge some benefit from the GP, in that it imposes restrictions on entities that were not otherwise restricted, but they contend that the GP is not stringent enough. 2 They argue that the GP allows discharge of pollutants in violation of federal law, and it fails to address adequately the problem of animal waste threatening “the quality of the waters of the nation” and of Maryland. Appellants challenged the GP pursuant to the Administrative Procedure Act.

See Md.Code (2004 RepLVol., 2009 Supp.) § 10-201 ei seq. of the State Government Article (“S.G.”). After a decision by an administrative law judge (“ALJ”) in MDE’s favor, to which appellants filed exceptions, the Final Decision Maker (“FDM”) of MDE found that the promulgation of the GP was in accord with state and federal law and it was not arbitrary and capricious. Accordingly, the FDM granted MDE’s motion for summary decision. The Circuit Court for Baltimore City affirmed the decision of the FDM.

Appellants presented seven questions for our review. 3 We have consolidated and rephrased these questions, to the extent ⁶⁷⁰ properly before this Court, 4 as follows: 1. Did the FDM err: (a) in failing to find that the decision to promulgate the GP was arbitrary and capricious and unsupported by substantial evidence; and (b) in granting MDE’s motion for summary decision when there was a dispute of material fact? 2. Does the GP violate federal regulations governing water quality standards? 3. Is the GP less stringent than federal law because it fails to regulate all AFOs that meet the federal definition of Concentrated Animal Feeding Operations?

For the reasons that follow, we shall affirm the judgment of the circuit court. ⁶⁷¹ STATUTORY BACKGROUND A. Federal Regulatory Scheme Congress enacted the federal Clean Water Act (“CWA”) in 1972 to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251 (a) (2008). Among its core provisions, the CWA prohibits the “discharge of any pollutant” to waters of the United States, except as authorized by a permit issued under the National Pollutant Discharge Elimination System (“NPDES”). Id. §§ 1251(a)(1), 1311(a), 1342(a)(1). The term “discharge of a pollutant” means “any addition of any pollutant to navigable waters from any point source.” Id. § 1362(12).

A “point source” is defined as “any discernible, confined and discrete conveyance,” including any container or “concentrated animal feeding operation” (“CAFO”) “from which pollutants are or may be discharged.” Id. § 1362(14). An AFO becomes a CAFO in two ways: (1) automatically, if it confines a certain number of animals; and (2) if it is specifically designated as a CAFO based on a determination that it is a significant contributor of pollutants to waters of the United States. 40 C.F.R. § 122.23 (b)-(c) (2010). 5 Agricultural storm water runoff is excluded as a discharge requiring an NPDES permit. See 33 U.S.C. § 1362 (14). The ⁶⁷² CWA regulates discharges to surface water; it does not regulate discharges to ground water because ground water does not qualify as “waters of the United States.” See Rice v. Harken Exploration Co., 250 F.3d 264, 269 (5th Cir.2001).

Federal regulations regarding CAFOs have evolved through the years. In 2003, the Environmental Protection Agency (“EPA”) expanded the definition of CAFO to include poultry operations utilizing a dry manure handling system. See National Pollutant Discharge Elimination System Permit Regulation and Effluent Limitation Guidelines and Standards for Concentrated Animal Feeding Operations (CAFOs), 68 Fed. Reg. 7176 , 7179-80, 7192 (Feb. 12, 2003). The United States Court of Appeals for the Fifth Circuit recently summarized the regulations in effect in 2003: Under the 2003 Rule, all CAFOs were required to apply for an NPDES permit whether or not they discharged. 68 Fed.Reg. 7176, 7266 (Feb. 12, 2003).

Specifically, every CAFO was assumed to have a “potential to discharge” and had to apply for an NPDES permit. Id. at 7266-67 . However, an option built into the Rule permitted a CAFO to request from the EPA a “no potential to discharge” determination. Id.

If the CAFO proved that it did not have the potential to discharge, the CAFO was not required to seek a permit. Id. The 2003 Rule also expanded the definition of exempt “agricultural stormwater discharge” to include land application discharge, if the land application comported with appropriate site-specific nutrient management practices. Id. at 7198 .

However, if the land application was not in compliance with those practices, the land application discharge would be an unpermitted discharge in violation of the CWA. Id. at 7197 . Furthermore, the 2003 Rule created a mandatory duty for all CAFOs, applying for a permit, to develop and implement a site-specific Nutrient Management Plan (NMP). Id. at 7176 .

An NMP required a CAFO to establish “best management practices” (BMPs). Id. at 7213-14 . The BMPs were designed to ensure adequate storage of manure and ⁶⁷³ wastewater, proper management of mortalities and chemicals, and appropriate site-specific protocols for land application. Id. at 7176 .

The BMPs were neither reviewed by the EPA nor were they included in the terms of a CAFO’s permit to discharge. Nat’l Pork Producers Council v. EPA, 635 F.3d 738, 744 (5th Cir.2011). In 2005, in Waterkeeper Alliance v. EPA, 399 F.3d 486 , 504-06 (2d Cir.2005), the United States Court of Appeals for the Second Circuit held that the EPA had no authority to require CAFOs to apply for a permit based on a “potential to discharge.” It held that the CWA “gives the EPA jurisdiction to regulate and control only actual discharges — not potential discharges, and certainly not point sources themselves.” Id. at 505. The court also held that the 2003 Rule violated the CWA in failing to require that NMPs be included in NPDES permits.

Id. at 502. 6 ⁶⁷⁴ In response to the Waterkeeper decision, the EPA promulgated new regulations in 2008, requiring CAFOs to obtain a NPDES permit if they discharge or “propose to discharge.” 7 See Revised National Pollutant Discharge Elimination System Permit Regulation and Effluent Limitations Guidelines for Concentrated Animal Feeding Operations in Response to the Waterkeeper Decision; Final Rule. 73 Fed.Reg. 70418, 70421-22 (Nov. 20, 2008) (codified at 40 C.F.R. pts. 9, 122, 412). The 2008 rule also required a CAFO seeking a permit to submit a NMP, and it required the permitting authority to review the NMP, provide the public the opportunity to comment, and incorporate the terms of the NMP as an element of the NPDES permit. Id. at 70422. Additional challenges were made regarding the propriety of the 2008 rule.

On March 15, 2011, after the briefs were filed in this case, the United States Court of Appeals for the Fifth Circuit rendered its decision in National Pork Producers Council, 635 F.3d at 750-51 , striking down provisions of the 2008 rule. As relevant to this appeal, the court struck down provisions of the CWA that required CAFOs to obtain a NPDES permit if they “propose to discharge” and imposed liability for a failure to apply. Id. The court held that “the EPA’s authority is limited to the regulation of CAFOs that discharge,” and “[a]ny attempt to do otherwise exceeds the EPA’s statutory authority.” Id. at 751 .

Thus, pursuant to federal law, only CAFOs that discharge pollutants are required to apply for a NPDES permit. To obtain a NPDES permit, however, applicants are required to develop and implement NMPs to limit the discharge of pollutants to water. The CWA contains other provisions to protect water quality, including limiting the issuance of a discharge permit if waters within a State’s borders are identified as impaired by pollutants. The CWA requires that states develop water quality ⁶⁷⁵ standards for water bodies within their boundaries. 33 U.S.C. § 1313 (e)(2)(A) (requiring standards sufficient to “protect the public health or welfare, enhance the quality of water and serve the purposes of this Act”).

It also requires states to identify those waters within its borders that are impaired by one or more pollutants. Id. § 1313(d)(1)(A). For those impaired waters, states are directed to establish a Total Maximum Daily Load (“TMDL”) for each impairing pollutant that can be accommodated by the water body without violating water quality standards and to allocate the available load to existing and future sources. Id. § 1313(d)(1)(C). 8 All NPDES permits must ensure that permitted discharges comply with all applicable water quality standards for the body of water that receives the discharge.

Id. § 1342(a)(1). To this end, federal regulations prohibit the issuance of an NPDES permit: To 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. The owner or operator of a new source or new discharger proposing to discharge into a water segment which does not meet applicable water quality standards or is not expected to meet those standards even after the application of the effluent limitations required by sections 301(b)(1)(A) and 301(b)(1)(B) of CWA, and for which the State or interstate agency has performed a pollutants load allocation for the pollutant to be discharged, must demonstrate, before the close of the public comment period, that: (1) There are sufficient remaining pollutant load allocations to allow for the discharge; and (2) The existing dischargers into that segment are subject to compliance schedules designed to bring the segment into compliance with applicable water quality ⁶⁷⁶ 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.

An explanation of the development of limitations to meet the criteria of this paragraph (i)(2) is to be included in the fact sheet to the permit under § 124.56(b)(1) of this chapter. 40 C.F.R. § 122.4 (h)(2)®. B. Maryland Regulatory Scheme MDE is charged with “managing, improving, controlling and conserving the waters of Maryland.” Northwest Land Corp. v. Md. Dep’t of the Env’t, 104 Md.App. 471, 478 , 656 A.2d 804 (1995). The General Assembly has provided that MDE shall cooperate with others to accomplish the following objectives: (1) To improve, conserve, and manage the quality of the waters of this State; (2) To protect, maintain, and improve the quality of water for public supplies, propagation of wildlife, fish, and aquatic life, and domestic, agricultural, industrial, recreational, and other legitimate beneficial uses; (3) To provide that no waste is discharged into any waters of this State without first receiving necessary treatment or other corrective action to protect the legitimate beneficial uses of the waters of this State; (4) Through innovative and alternative methods of waste and wastewater treatment, to provide and promote prevention, abatement, and control of new or existing water pollution; and (5) To promote and encourage the use of reclaimed water in order to conserve water supplies, facilitate the indirect recharge of groundwater, and develop an alternative to discharging wastewater effluent to surface waters, thus pursuing the goal of the Clean Water Act to end the discharge of pollutants and meet the nutrient reduction goals of the Chesapeake Bay Agreement. ⁶⁷⁷ McLCode (2007 RepLVol.) §§ 9-302(b)-(c) of the Environment Article (“Envir.”). One way MDE works to achieve these objectives and comply with federal law is to adopt rules and regulations regarding: (1) water quality standards, which “specify the maximum permissible short- and long-term concentrations of pollutants in the water, the minimum permissible concentrations of dissolved oxygen and other desirable matter in the water, and the temperature range for the water”; and (2) water effluent standards, which “specify the maximum loading or concentrations and the physical, thermal, chemical, biological, and radioactive properties of wastes that may be discharged into the waters of this State.” Id. § 9-314(b). 9 MDE is also tasked with issuing discharge permits.

Id. § 9-323. Maryland law prohibits the discharge of pollutants to “waters of the State,” i.e., surface or ground water, except as authorized by a discharge permit issued by MDE. Id. §§ 9— 101(£). -322, -323. Tn this respect, Maryland law is more stringent than federal law; it regulates discharges to groundwater and surface water, whereas federal law regulates only discharges to surface water.

Compare 33 U.S.C. § 1362 (14), and Envir. § 9-101 (l )(1), -322. MDE is authorized to issue a discharge permit upon its determination that the discharge meets all state and federal water quality standards, 10 and appropriate effluent limits. Envir. § 9-324. Accord Northwest Land Corp., 104 Md.App. at 479 , 656 A.2d 804 . ⁶⁷⁸ Maryland, like the EPA, has regulations in place governing the issuance of general discharge permits.

See COMAR 26.08.04.09 (method of obtaining coverage). A general discharge permit is issued to categories or classes of discharge that are susceptible to regulation under common terms and conditions. See COMAR 26.08.04.08. Maryland’s initial permit scheme, which became effective December 18,1996, governed only CAFOs, which were defined as operations “with more than 1000 animal units; more than 55,000 turkeys; or 30,000 or more chickens which produce[ ] a liquid waste stream.” General Permit for Concentrated Animal Feeding Operations (“1996 GP”), Part II.D. The 1996 GP did not authorize discharges of wastewater to surface water, and it did not set forth any regulations regarding dry manure handling systems.

Id. Parts I.B-C. To be covered under the 1996 GP, an applicant needed only to submit an application and a Notice of Intent (“NOI”), and pay the required fees. Id. Part III. 11 The 1996 GP expired on December 17, 2001.

Id. at 1. MDE subsequently established a new permit scheme for AFOs, CAFOs, and Maryland Animal Feeding Operations (“MAFOs”). On September 12, 2008, MDE published a tentative determination regarding the GP at issue here. 35: 19 Md. Reg. 1737 (Sept. 12, 2008). The GP established two categories of AFOs.

The first category, CAFOs, are AFOs that discharge to surface waters, which are covered by the CWA and must obtain a NPDES permit issued by MDE. GP, Part I.A1; ⁶⁷⁹ COMAR 26.08.03.09B(3) (2009). The second category, an AFO that qualifies as a CAFO under federal regulations, but does not discharge or propose to discharge to surface water, is classified as a MAFO. Id. 26 .08.03.09B(l)(d).

MAFOs are not required to obtain a NPDES permit because they do not discharge to surface water. The State discharge permit required for MAFOs addresses groundwater; it does not permit discharges to surface water. Id. 26 .08.03.09C(5)(c)-(6). 12 The GP regulations for MAFOs and CAFOs have many of the same requirements. For instance, both operations are subject to public comment on their plans.

COMAR 26.08.04.09N(3). Both MAFOs and CAFOs are required to develop a NMP, although CAFOs must develop a Comprehensive Nutrient Management Plan (“CNMP”), whereas a MAFO may develop a CNMP or a NMP and a Conservation Plan. 13 GP, Part IV.A.1. One significant difference between MAFOs and CAFOs, however, is with regard to field storage operations. CAFOs can store dry manure in the field, without separating it from ground water and storm water through use of a plastic liner and a cover, for no more than 14 days; MAFOs can store dry manure in the field for up to 90 days. 14 GP, Part IV.B.6.b-c. ⁶⁸⁰ FACTUAL AND PROCEDURAL BACKGROUND After MDE reached a Final Determination authorizing the GP, 15 appellants filed with MDE a petition for a contested hearing, asserting that the GP violated both Maryland and federal law.

Specifically, appellants asserted that the GP: (1) “allows open storage of poultry litter under conditions that are certain to result in discharges of pollutants to the waters and groundwaters of’ Maryland; and (2) “fails to ensure compliance with water quality standards and TMDL waste load allocations prior to permit coverage approval.” 16 The case was transmitted to the Office of Administrative Hearings (“OAH”) for a hearing before an ALJ. On March 30, 2009, MDE filed a Motion for Summary Decision, asserting that the GP was “entirely consistent with state and federal law and regulations and reflected] the best scientific information available.” It argued that, “because the GP requires compliance with water quality standards and applicable TMDLs,” MDE was entitled to judgment as a matter of law. MDE supported its motion with affidavits from Robert M. Summers, Ph.D., who at that time was Deputy Secretary of MDE, and Dinorah Dalmasy, a Senior Regulatory and Compli- ⁶⁸¹ anee Engineer with MDE. Attached to Dr. Summers’ affidavit was a document he prepared, entitled: “Basis for Requirements to Protect Water Quality During Field Storage of Litter Stockpiles in the Maryland General Permit for Animal Feeding Operations,” which explained the rationale and basis for establishing the time limits set forth in the GP regarding field storage of poultry manure.

In this document, Dr. Summers explained that “EPA regulations do not specify a time period for outdoor stockpiling of dry poultry manure, but EPA’s guidance document suggests 14 days is appropriate.” MDE had requested, but the EPA was not able to provide, “technical documentation of the factual basis and risk level associated with the 15th day of storage, versus 10 days or 30 days, for example.” MDE consulted with University of Maryland scientists at the Cooperative Extension Service and the Wye Research Education Center. They advised: [T]he scientific literature regarding loss of nutrients from field storage of poultry litter was not consistent regarding the water quality impact of stockpiles, whether covered or uncovered. They also stressed that it is most important to control runoff from the litter when it is applied to cropland by meeting nutrient management plan requirements for the timing and rate of application. Dr. Summers also noted that the Chesapeake Research Consortium, at the request of the Eastern Shore Agricultural Collaborative and the University of Maryland Environmental Finance Center, had convened a group of scientists to review the scientific data regarding field storage of poultry manure and to develop a consensus as to the appropriate limits on field storage times.

Among their recommendations, the scientists concluded: “[TJhere is little difference (in terms of nutrient losses to the surrounding soil) between litter stockpiled for 14 days and litter stockpiled for 190 days.” (Emphasis omitted). The panel recommended that: Temporary stockpiling of poultry litter should be encouraged when other immediate use options (e.g., field applica ⁶⁸² tion meeting seasonal planting schedules, or regional hydrological cycles, or alternative off-site uses) are not ávailable, regardless of the length of time required, up to a maximum of 190 days based on documented research trials of 190 days in length. (Emphasis omitted). Based on the information MDE was able to obtain, and “[a]bsent clear documented evidence of significant water quality impacts between uncovered litter storage of between 14 days and 90 days (and even up to 190 days, according to the Science Panel),” MDE determined that a 30-day limit for unprotected field stockpiling of litter from MAFO permitted operations “would be protective of water quality.” MDE further determined that the initial 90-day time limit for a 3-year compliance period “would provide water quality benefits by beginning to restrict field storage and still give the agricultural community time to develop alternatives other than premature field application and/or transfer to unregulated operations.” 17 Ms. Dalmasy also filed an affidavit, explaining MDE’s development of TMDLs for bodies of water in the State that have been identified as impaired by pollutants.

As discussed in more detail, infra, she asserted that the GP “contains measures intended to ensure that AFOs/CAFOs/MAFOs discharges do not cause or contribute to violations of water quality standards.” That same day, appellants filed their own motion for summary judgment, asserting that the GP, in permitting MAFOs to store poultry litter and manure for up to 90 days, violated federal and state laws “designed to protect both this nation’s and Maryland’s waters.” They argued that the ALJ should ⁶⁸³ “overturn” the GP “because it is affected by an error of law, is unsupported by competent, material, and substantial evidence, and is arbitrary and capricious.” Appellants argued that MDE’s decision to adopt the GP was “fundamentally flawed for three reasons.” First, they asserted that the GP “conflicts with federal law” because “[i]t allows certain AFOs that would otherwise be classified as a [CAFO] under the [CWA], and therefore likely subject to the [NPDES] permit pursuant to the [CWA], to instead qualify as a MAFO under State law” and maintain open storage of poultry manure for up to 90 days, an action not permitted as a CAFO. Second, appellants argued that the GP failed to assure compliance with applicable water quality standards before issuance of permit coverage. They asserted that MDE may not, without sufficient evidence, presume that “compliance with the technical standards in the Final Permit will assure compliance with all the various water quality standards applicable in Maryland.” Third, appellants contended that the GP was not based on sufficient evidence. They argued that MDE ignored studies relating to the proper storage of poultry manure and that it “acted arbitrarily and capriciously.” Appellants supported their motion with 26 documents, including several scientific studies regarding the implications of poultry manure storage.

On April 13, 2009, MDE filed its opposition to appellants’ motion for summary decision. With respect to appellants’ first argument, MDE argued that the GP was consistent with federal law, asserting that it required CAFO permit coverage for every facility that then qualified under the federal program. It noted that MAFOs, by definition, are not CAFOs, and therefore, they are not subject to the same federal requirements. MDE next disputed appellants’ argument that the GP failed to ensure compliance with applicable water quality standards, asserting that “the NOI process, which requires the preparation of a CAFO-specific [CNMP] and subjects the NOI and related plans to public review and ⁶⁸⁴ opportunity for a public hearing, and the process by which [MDE] can require an individual permit, satisfy any legal requirement in this regard.” Finally, MDE argued that its factual findings were based on correct determinations of relevant and material facts.

MDE contended that its decision to issue the GP was based on available evidence and was neither arbitrary nor capricious. The ALJ did not conduct a hearing on the motions. On May 5, 2009, it issued a proposed decision, denying appellants’ motion for summary decision and granting MDE’s motion. The ALJ initially rejected appellants’ contention that the GP’s open storage provision was inconsistent with federal law, reasoning that, because MAFOs are unregulated at the federal level, MDE’s regulation of them was in excess of its responsibilities under the CWA.

It stated that “MDE is not narrowing the definition of CAFOs as the Petitioners suggest, but instead they are expanding the group of AFOs that must submit to some sort of permitting requirement in order to operate and store manure.” The ALJ likewise rejected appellants’ assertion that MDE’s decision to regulate MAFOs differently from CAFOs was arbitrary and capricious, noting that MDE’s decision was based on available scientific information. Finally, the ALJ found that the GP complied with federal regulations governing water quality, noting: (1) all of Maryland’s water quality standards had been approved at that point by the EPA; and (2) the GP was consistent with the existing approved standards. On or about May 27, 2009, appellants filed exceptions to the ALJ’s proposed decision granting MDE’s motion for summary decision in its favor. Appellants argued that MDE’s regulation of MAFOs “ensures continued environmental pollution in direct contravention of both federal and state law.” They stated that “[t]he most pointed demonstration of MDE’s violation of federal and state law is the provision that allows MAFOs to store poultry litter outside without a cover or ground liner for up to 90 days (which may be reduced [to] 30 days in three years),” asserting “the common sense (and scientifically buttressed) observation that large open stockpiles ⁶⁸⁵ of manure exposed to rain events will have devastating impacts on the environment.” They argued that “MDE is out of step with federal and other jurisdictions in fashioning the 90-day rule.” Appellants set forth four specific exceptions to the ALJ’s proposed decision.

First, they argued that the proposed decision must be vacated on the procedural ground that the ALJ failed to make adequate findings of fact and conclusions of law. Second, appellants argued that the ALJ’s grant of summary decision was improper because it was based on an incorrect legal standard, asserting that the briefs revealed “obvious disputed issues of material fact” regarding the basis to allow uncovered poultry manure for 90 days. Third, they argued that the ALJ failed to address the issue whether the GP contained measures to ensure that CAFO discharges do not cause or contribute to violations of water quality. Fourth, they asserted that the ALJ “relied upon incorrect statements of fact and law and reached erroneous conclusions.” Appellants requested that the proposed decision be vacated and the case set for a full hearing.

On August 19, 2009, the FDM heard argument on the exceptions to the ALJ’s proposed decision granting MDE’s motion for summary decision. On September 2, 2009, it issued a final decision, concluding: That Petitioners have demonstrated neither an error of law nor a dispute of material fact. MDE’s issuance of the GP is in accord with federal and State law, is supported by substantial evidence, and is not arbitrary and capricious. For these reasons, MDE’s motion for summary decision is granted, and Petitioners’ motion for summary decision is denied.[ 18 ] ⁶⁸⁶ The FDM noted that, pursuant to the GP, “[b]oth CAFOs and MAFOs are required to comply with certain minimum standards to protect water quality.” The GP regulates discharges “by regulating the management of manure as it is stored, and also when it is land applied as fertilizer.” The FDM summarized the substantive differences in the regulations for a CAFO and a MAFO: • A CAFO’s CNMP must be submitted to [MDE] for approval before the CAFO can be covered by the GP, whereas MAFOs are allowed to submit their plans after obtaining permit coverage.

GP, Part III.C.2. and B.2. • CAFOs cannot store poultry litter manure in the field for more than 14 days unless it is separated from ground water and storm water by a liner and a cover to prevent leaching or runoff of pollutants. GP, Part IV.B.6.b. • MAFOs are allowed to store poultry litter manure for up to 90 days (scheduled to be reduced in the future to 30 days unless studies demonstrate that 30 days is more restrictive than necessary) without a liner or cover. GP, Part IV.B.6.C. 19 The FDM rejected the argument that the GP violated federal law “by regulating as MAFOs, instead of CAFOs, certain facilities that store manure uncovered for more than 14 days.” It explained: In Maryland, poultry litter is generally destined for application to cropland, where it can be used in place of chemical fertilizer. The litter must, however, be staged or stored ⁶⁸⁷ after it is removed from the chicken house and before it can applied to fields.

The field application has long been subject to nutrient management plans under the Water Quality Improvement Act of 1998. Md. Agrie. Art. Title 8, Subtitle 8. The GP allows CAFOs to store the litter in uncovered piles for up to 14 days.

GP, Part IV.B.6.b. If a CAFO wishes to store the litter for a longer period, it must use both a liner and cover to separate the pile from ground water and storm water to prevent leaching or runoff of pollutants. Id. Petitioners do not challenge this provision.

The GP, however, allows MAFOs [to store] poultry litter manure in uncovered piles for a longer time-up to 90 days. GP, Part IV.B.6.C. Petitioners argue that uncovered storage for more than 14 days converts an AFO with a dry manure handling system to a facility with a liquid manure system. (Footnote omitted). The FDM recognized that an AFO qualifies as a CAFO with fewer animals if it has a liquid manure system.

It noted, however, that appellants did not identify any “federal law or regulation that defines a liquid manure handling system or that determines that uncovered storage will cause a dry system to be classified as a liquid one.” The FDM rejected appellants’ “unsupported assertion that ‘prolonged uncovered storage necessarily results in liquified manure.’ ” The FDM was not persuaded by appellants’ argument that “MAFOs that take advantage of the extended storage time will, of necessity, discharge to surface waters and therefore must be classified as CAFOs and made subject to the NPDES permitting requirements.” It noted that the CWA does not apply to an AFO with the potential to discharge and that “a MAFO that discharges to surface water loses its status as a MAFO and becomes a CAFO.” The FDM further rejected the argument that the GP violated the CWA “because it fail[ed] to ensure that poultry waste discharges do not cause or contribute to violations of water quality.” It noted that the CWA “does not mandate a com- ⁶⁸⁸ píete ban on discharges into a waterway that is in violation of existing water quality standards,” and deference should be given to the EPA’s interpretation of the phrase “cause or contribute to the violation of water quality standards.” The FDM stated that “the issuance of a permit that would result in a net reduction of the pollutant causing the impairment” is permissible pursuant to the CWA, and it found that, given the stringent requirements of the GP, “it is reasonable to conclude that compliance with the GP will reduce the loading to the impaired waterbody.” The FDM concluded: “Under the particular circumstances of this case, I find that the issuance of the GP to existing CAFOs in impaired waterways, regardless whether a TMDL has been promulgated, will not cause or contribute to the violation of water quality standards.” Finally, the FDM determined that summary decision was appropriate. It found that there was no genuine dispute of material fact, and the decision of MDE to issue the GP was not arbitrary and capricious. On October 1, 2009, appellants filed in the Circuit Court for Baltimore City a Petition for Judicial Review of the Final Decision. On January 11, 2010, appellants filed a motion to present additional evidence, requesting that the court remand the case with instructions to MDE to consider evidence that it was prevented from introducing when MDE’s motion for summary decision was granted, without an evidentiary hearing.

On January 27, 2010, MDE filed its opposition to appellant’s motion to present additional evidence, asserting that appellants were “free under the applicable rules, indeed they were compelled, to support their motion! ] for summary decision by record evidence and affidavit providing evidence of the facts alleged in their motion! ],” but they failed to do so. It argued that appellants “elected to rely exclusively on their lawyers’ arguments,” rather than present expert evidence needed to ⁶⁸⁹ make their case, and that this “tactical failure” did not constitute good cause to permit them to introduce additional evidence. On February 3, 2010, appellants filed their reply. They argued that they “were unreasonably denied an opportunity to present their view of the scientific literature and to challenge and cross-examine the MDE’s view of it in a contested hearing prior to MDE’s resolution of the issue as required by MDE’s administrative rules of procedure.” On February 4, 2010, the circuit court denied appellant’s motion to present additional evidence.

On March 3, 2010, the court heard argument on the merits. It requested supplemental briefing regarding the right to an evidentiary hearing at the administrative level. On March 9, 2010, MDE filed its bench memorandum, arguing that there is “no support for the proposition that the OAH was required to hold any kind of hearing on a motion for summary decision, much less a full evidentiary hearing.” Appellants disagreed, arguing in their memorandum that, “[b]e-cause the OAH [ALJ] improperly granted MDE summary decision, [appellants] were unlawfully denied the opportunity to present evidence at an evidentiary hearing.” They asserted: “On May 5, 2009, without holding a single hearing or having the benefit of a fully developed record, in a proposed decision so fraught with legal errors it was discarded in its entirety by the Final Decision Maker ... the ALJ granted MDE’s and denied [appellants’] motion for summary decision.” Appellants requested the court to “reverse and remand the matter to the administrative agency.” On April 8, 2010, the court issued an Order and Memorandum affirming MDE’s Final Decision. It stated that appellants were “unable to establish that a per se ‘right’ to an evidentiary hearing during a contested case is required.” The court found that substantial evidence existed in the record to support the Final Decision, and accordingly, it affirmed. ⁶⁹⁰ This timely appeal followed. 20 STANDARD OF REVIEW The Court of Appeals has explained the standard of review of an agency decision: A court’s role in reviewing an administrative agency adjudicatory decision is narrow; it “is limited to determining if there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law.” In applying the substantial evidence test, a reviewing court decides “whether a reasoning mind reasonably could have reached the factual conclusion the agency reached.” A reviewing court should defer to the agency’s fact-finding and drawing of inferences if they are supported by the record.

A reviewing court “must review the agency’s decision in the light most favorable to it; ... the agency’s decision is prima facie correct and presumed valid, and ... it is the agency’s province to resolve conflicting evidence” and to draw inferences from that evidence. Despite some unfortunate language that has crept into a few of our opinions, a court’s task on review is not to “substitute its judgment for the expertise of those persons who constitute the administrative agency.” Even with regard to some legal issues, a degree of deference should often be accorded the position of the administrative agency. Thus, an administrative agency’s interpretation and application of the statute which the agency administers should ordinarily be given considerable weight by reviewing courts. Furthermore, the expertise of the agency in its own field should be respected. ⁶⁹¹ Najafi v. Motor Vehicle Admin., 418 Md. 164, 173-74 (2011) (quoting Md. Aviation Admin. v. Noland, 386 Md. 556, 571-72 , 873 A.2d 1145 (2005)).

When an agency acts in a “discretionary” capacity, we will overturn its decision only upon a finding that its action is “arbitrary and capricious.” Md. Bd. of Physicians v. Elliott, 170 Md.App. 369, 406 , 907 A.2d 321 (quotations omitted), cert. denied, 396 Md. 12 , 912 A.2d 648 (2006). Accord S.G. § 10-222(h)(3)(vi). The rationale for this deferential standard of review has been set forth as follows: “State administrative ‘agencies are created in order to perform activities which the Legislature deems desirable and necessary’ to further the public health, safety, welfare, and morals. “The powers vested in the courts, by statute or inherence, to review administrative decisions does not carry with it the right to substitute its fact finding process for that of an agency.” Northwest Land Corp., 104 Md.App. at 488 , 656 A.2d 804 (quoting Sec’y of Health & Mental Hygiene v. Crowder, 43 Md.App. 276, 281 , 405 A.2d 279 (1979)). In reviewing a circuit court decision on appeal from an administrative agency decision, “our role ‘is precisely the same as that of the circuit court.’ ” Tabassi v. Carroll County Dep’t of Soc.

Servs., 182 Md.App. 80, 85 , 957 A.2d 620 (2008) (quoting Howard County Dep’t of Soc. Servs. v. Linda J., 161 Md.App. 402, 407 , 869 A.2d 404 (2005)). We “review[ ] the agency’s decision, and not that of the circuit court.” P Overlook, LLLP v. Bd. of County Comm’rs of Wash. County, 183 Md.App. 233, 247 , 960 A.2d 1241 (2008).

Accord Elliott, 170 Md.App. at 401 , 907 A.2d 321 . DISCUSSION I. As the discussion of the background of this case illustrates, one of appellants’ primary concerns is the provision in the GP ⁶⁹² that allows MAFOs “to store poultry litter on bare ground, in uncovered piles,” for more than the 14 days permitted for CAFOs. 21 They argue that the FDM’s decision, to uphold this provision of the GP by granting MDE’s motion for summary decision, was erroneous for several reasons. Initially, appellants argue that the FDM erred in failing to find that the decision to promulgate the GP was arbitrary and capricious because: (1) MDE did not “provide any evidentiary support for its decision to adopt a 3-year, 90/30 day phase-in-period”; (2) the GP is contrary to “the ‘policy goals’ of the Maryland Environmental Article” to “ ‘prevent, abate, and control pollution of the waters of this State’ ”; and (3) the FDM “failed to address substantial evidence provided by Appellants.” Moreover, they argue that the FDM erred in deciding the case by summary decision because there were disputes of material fact involving: (1) “the water quality impacts of litter stockpiling”; and (2) “whether discharges to groundwater and discharges to surface water pose the same risks.” MDE disagrees. It asserts that there was substantial evidence to support the provisions of the GP, and there was no dispute of material fact precluding- the FDM’s ruling by summary decision.

MDE contends that, “absent clear documented evidence of significant water quality impacts between uncovered litter storage of between 14 and 90 days,” the “90/30 day limit imposed within the MAFO portions of the GP” was not “arbitrarily lax.” MDE further asserts that “[ajppellants do not explain how regulating agricultural operations that were ‘previously unregulated’ ... is ‘contrary to or inconsistent with’ ... MDE’s statutory charge.” It argues that appellants’ desire for “stricter controls on farms is not grounds for reversal,” particularly given the deference that should be afforded to an agency decision “relating] to scientific matters traditionally left to agency expertise.” ⁶⁹³ A. We will address first appellants’ contention that MDE’s final decision was “arbitrary and capricious and unsupported by substantial evidence.” Appellants contend that MDE failed “to provide any evidentiary support for its decision to adopt a 3-year, 90/30 day phase-in-period.” The record reflects, however, that MDE did provide support for its decision. MDE submitted the affidavit of Dr. Summers, who stated that, as Deputy Secretary of MDE, he had been involved with efforts “to establish through the GP requirements to protect water quality during field storage of poultry litter.” He attached a document he prepared, entitled: “Basis for Requirements to Protect Water Quality During Field Storage of Litter Stockpiles in the Maryland General Permit for Animal Feeding Operations,” which described MDE’s rationale for adopting the provisions of the GP establishing time frames for field storage of poultry litter. Dr. Summers noted that “EPA regulations do not specify a time period for outdoor stockpiling of dry poultry manure, but EPA’s guidance document suggests 14 days is appropriate.” 22 Dr. Summers explained that, in determining how stringent to make the storage requirement for the GP, MDE had requested, “but EPA was not able to provide, technical documentation of the factual basis and risk level associated with the 15th day of storage, versus 10 days or 30 days, for example.” Dr. Summers explained that MDE consulted with University of Maryland scientists at the Cooperative Extension Service and the Wye Research and Education Center.

He summarized their thoughts as follows: ⁶⁹⁴ Their guidance was that the scientific literature regarding loss of nutrients from field storage of poultry litter was not consistent regarding the water quality impact of stockpiles, whether uncovered or covered. They also stressed that it is most important to control runoff from the litter when it is applied to cropland by meeting nutrient management plan requirements for the timing and rate of application. Stacking of litter in the appropriate locations in the field as far as possible, but at least 100 feet from waterways, including field ditches[,] provides better water quality protection compared to premature field spreading since the surface area of exposed litter is much smaller in a stockpile than it is spread on a field. A stringent field storage time limit encourages spreading of litter at times of the year that are not optimal for crop uptake.

Based on concerns relating to a stringent field storage time limit, “MDE determined that a 30 day limit for unprotected field stockpiling of litter from MAFO permitted operations was a more reasonable time frame that could be applied to all farms in Maryland, through modifications to the [Maryland Department of Agriculture (“MDA”) ] administered State Nutrient Management Regulations.” Dr. Summers explained that the “initial 90 day requirement for three years allows a reasonable phased-in compliance period for the agricultural community to adjust whole-house clean out schedules, build additional storage capacity, or other compliance steps needed to meet the 30 day restriction.” The document prepared by Dr. Summers explained that, subsequent to MDE’s publication of its Tentative Determination for the GP, the Chesapeake Research Consortium “convened a group of scientists to review the pertinent scientific data and develop a consensus document to provide guidance for consideration in making a final determination on Maryland’s General Permit.” Pertinent to this appeal, Dr. Summers set forth the recommendation regarding the issue of limits of field storage as follows: “[TJhere is little difference (in terms of nutrient losses to the surrounding soil) between litter stockpiled for 14 days and litter stockpiled for 190 days.” ⁶⁹⁵ (emphasis omitted). He noted that the panel also recommended: Temporary stockpiling of poultry litter should be encouraged when other immediate use options (e.g., field application meeting seasonal planting schedules, or regional hydrological cycles, or alternative off-site uses) are not available, regardless of the length of time required, up to a maximum of 190 days based on documented research trials of 190 days in length---- Due to a lack of consistent differences between covered and uncovered litter storage piles with regard to nutrient runoff, the Panel does not support mandatory covering of temporary field stockpiles as a technique to reduce nutrient loading to soils or water. (Emphasis omitted). MDE considered all comments, including those from the scientists.

It concluded: Since available evidence indicates that there are water quality impacts resulting from storage of litter in the field and those impacts are highly variable, it is very likely that the differences between a 14-day storage limit and a 30-day storage limit would be un-measurable. Absent clear documented evidence of significant water quality impacts between uncovered litter storage of between 14 days and 90 days (and even up to 190 days, according to the Science Panel), MDE concluded that the 30-day limit would be protective of water quality. MDE also concluded that the initial 90-day limit for a 3-year compliance period would provide water quality benefits by beginning to restrict field storage and still give the agricultural community time to develop alternatives other than premature field application and/or transfer or unregulated operations. The FDM considered this evidence and rejected the argument that there was not a substantial basis for the GP.

It found that MDE “had a rational basis for the decision to allow MAFOs to store poultry manure uncovered for up to 90 days for the next 3 years, and that the decision was not arbitrary and capricious.” The FDM noted that, in the absence of ⁶⁹⁶ definitive data “on the questions of whether a cover reduces the leaching of nutrients and how, in what amounts, and over what [ ] period of time nitrogen and phosphorus are lost from a poultry manure litter pile,” MDE sought advice from experts in the field. The FDM found that the initial 90-day storage period was consistent with the advice MDE received, and this advice provided a substantial basis for MDE’s decision. Appellants do not dispute the factual assertions set forth in the document prepared by Dr. Summers. Rather, they fault MDE for not conducting “its own analysis or review of the scientific literature.” They further state that “[t]he summary cited in the Summers Affidavit also largely relies on one sentence drawn from a ‘Poultry Litter Experts Science Forum’ white paper that summarizes the proceedings of a 2008 meeting of academic experts convened in response to the tentative General Permit,” suggesting that the unpublished study was not a substantial basis for MDE to adopt the 90-day storage provisions in the GP.

As indicated, our inquiry is whether a “reasoning mind reasonably could have reached the factual decision the agency reached.” Najafi, 418 Md. at 173 , 12 A.3d 1255 . That test is satisfied here. MDE sought advice regarding the water quality impact of various poultry litter storage times from several different sources: the EPA; the University of Maryland scientists at the Cooperative Extensive Service; the Wye Research and Education Center; and scientists at the Chesapeake Research Consortium. None of these sources advised that 30 to 90 days of storage would significantly increase nutrient loss to the environment.

And, as indicated, the scientific experts at the Chesapeake Research Consortium gave the following recommendation: The available data suggests that while any stockpiled litter presents a potential for nutrient loss to the environment, the majority of this risk occurs within the first days of litter pile construction. In other words, there is little difference (in terms of nutrient losses to the surrounding soil) between ⁶⁹⁷ litter stockpiled for 14 days and litter stockpiled for 190 days. Still, the impact is greater than zero, and minimizing the need for such stockpiles will reduce even these minimal loads. Temporary stockpiling of poultry litter should be encouraged when other immediate-use options (e.g., field application meeting seasonal planting schedules, or regional hydrological cycles, or alternative off-site uses) are not available, regardless of the length of time required, up to a maximum of 190 days based on documented research trials of 190 days in length.

(Emphasis omitted). The rationale set forth by Dr. Summers made clear that MDE considered the lack of evidence of any significant differences in water quality impacts between litter storage of 14 and 90 days, and it weighed that against the potential adverse effects of a stringent field storage time limit, as well as the need to give chicken farmers time to makes changes to their business practices to comply with the new requirements. Under these circumstances, we hold that MDE had a reasonable basis for establishing the three year, 90-day phase-in-period for the storage of uncovered manure by MAFOs. Appellants have not stated a ground for reversal of the agency’s decision in this regard.

B. Appellants next assert that MDE’s decision was “arbitrary and capricious because it is contrary to the ‘policy goals’ of the Maryland Environmental Article,” particularly the goal to “ ‘prevent, abate, and control pollution of the waters of this State.’” (Quoting Envir. § 9-302(a)). They dispute MDE’s argument that the GP satisfies this goal because it provides some regulation in an area that was previously unregulated, arguing that “merely chipping away at what was ‘previously unregulated’ does not make the General Permit protective of ⁶⁹⁸ water quality, particularly when the previous policy led to the environmental crisis faced by the Chesapeake Bay.” MDE disagrees. It states: “Appellants do not explain how regulating agricultural operations that were ‘previously unregulated’ ... is ‘contrary to or inconsistent with,’ ... MDE’s statutory charge.” We agree with MDE.

Its decision to regulate MAFOs, which, as indicated, previously were not regulated, is consistent with the statutory policy goal to “prevent, abate, and control pollution of the waters of this State.” Envir. § 9-302(a). That appellants would like stricter controls on MA-FOs is not dispositive. As noted, our review of MDE’s decision to issue the GP is limited to the narrow issue whether there was substantial evidence to support MDE’s determination. We have already determined that there was, and appellants’ policy arguments are not a basis for reversing the agency determination.

C. Appellants next assert that, even if there was substantial evidence to support the issuance of the GP, the FDM disregarded “well-settled legal principles” in granting MDE’s motion for summary decision when there were several disputed issues of material fact. Specifically, appellants allege two disputes of material fact: (1) “whether there are discernible water quality impacts between covered and uncovered manure storage”; and (2) “whether discharges to groundwater and discharges to surface water pose the same risks.” MDE argues that there were no disputes of material fact as alleged by appellants. It contends that the FDM properly granted summary decision in its favor. The rules of procedure for the OAH permit a party to move for summary decision on any appropriate issue in the case.

COMAR 28.02.01.16.D(2) (2001). The rules provide: “A judge may grant a proposed or final summary decision if the judge finds that: (a) [tjhere is no genuine issue of material fact; and (b) [a] party is entitled to prevail as a matter of law.” Id. This ⁶⁹⁹ standard is the same as that applied in the courts in determining whether to grant summary judgment to a party. See Md. Rule 2-501 (a) (providing that a trial court may grant summary judgment when there is “no genuine dispute as to any material fact” and the moving party is entitled to judgment “as a matter of law”).

See also Eng’g Mgmt. Servs., Inc. v. Md. State Highway Admin., 375 Md. 211, 229 , 825 A.2d 966 (2003) (noting that the standard of review for the grant of summary judgment, whether it is “legally correct,” is “the same standard of review we apply to the question of the legal correctness of an administrative agency’s decision”). We address first appellants’ contention that there was a dispute of material fact regarding “whether there are discernible water quality impacts between covered and uncovered manure storage.” MDE asserts that Dr. Summers’ affidavit demonstrated that “the existing scientific literature ‘was not consistent’ on whether there is a discernible difference in water quality impacts between covered and uncovered manure storage beyond 14 days.” MDE asserts that, “having produced such evidence, the burden then shifted to [ajppellants to come forward with their own affidavits or other admissible evidence to contradict the fact that the scientific community had not developed a consensus as to the relative impact of uncovered versus covered manure storage,” which they failed to do. The FDM rejected appellants’ argument that summary decision was inappropriate because there was a dispute of material fact regarding whether the GP, which allows MAFOs to store poultry litter on the ground, in uncovered piles, beyond 14 days, adequately protected water quality.

The FDM found that appellants: (1) did not raise a genuine dispute of fact; and (2) failed to show that the allegedly disputed fact was material. The FDM explained: There is no dispute that piles of poultry manure release nitrogen and phosphorus to the environment, whether the piles are covered or uncovered. The GP is the mechanism ⁷⁰⁰ by which the release to ground water is regulated and permitted. The literature cited in support of their respective positions by [appellants] and [MDE] document losses in various ways, but do not provide sufficient information to specifically quantify the differences, either by whether the piles are covered or uncovered, or how long an uncovered pile remains.

Indeed, [appellants] cite with apparent approval a study that determined that the greatest losses occur during the first few days after the pile is constructed, which would seem to indicate that the risk of nutrient loss declines as time passes. It may be the “fact” [appellants] wish to dispute cannot be answered with the available scientific data. Clearly, [appellants] have not alleged that they can better quantify the losses, or demonstrate that the differences between 14 day storage and 90 day storage would be measurable, much less presented an actual factual dispute by the use of affidavits or otherwise. [Appellants] have failed to raise a factual dispute. Even if [appellants] were able to quantify the losses from uncovered piles precisely over time, it would not answer the question whether the conditions “adequately” protect ground water, because [appellants] have not identified any law or regulation that would provide the standard by which to judge “adequacy.” In oral argument, [appellants] indicated that the only acceptable time was “the shortest time possible.” If this were the legal measure of adequacy, the “fact” is not material.

I find that [appellants] have not raised a genuine dispute of material fact. (Footnote omitted). The FDM stated that it had reviewed the scientific literature referred to by appellants. It noted that the studies reported “different observations on the questions of whether a cover reduces the leaching of nutrients and how, in what amounts, and over what [ ] period of time nitrogen and phosphorus are lost from a poultry manure litter pile.” 23 ⁷⁰¹ We find no error in the FDM’s conclusion that there existed no dispute of material fact in this regard precluding summary decision in favor of MDE.

As the FDM stated, appellants did not submit any evidence, by affidavit or otherwise, stating that there were quantifiable differences in nutrient loss for 90-day storage of poultry litter as opposed to 14-day storage. 24 Given the lack of evidence quantifying the nutrient losses for uncovered piles of poultry manure over time, there was no material dispute of fact that the 90-day provision in the GP, based on the recommendation of the Chesapeake Research Consortium, did not adequately protect water quality. We turn next to appellants’ argument that there existed a “fierce dispute” of material fact regarding “whether discharges to groundwater and discharges to surface water pose the same risks.” Appellants argue that MDE did not provide any evidence in support of its claim that “ ‘soils can prevent or inhibit transport’ of potential pollutants, such as nitrates, from manure piles to groundwater.” They note that they cited studies indicating that groundwater is particularly susceptible to contamination by nitrates, which, unlike phosphorus, bind to soils and threaten surface water by runoff. They argue that the FDM ignored these studies and “resolved this disputed issue by finding ‘[djischarges to groundwater and discharges ⁷⁰² directly to surface water are not the same and do not pose the same risk.’ ” MDE responds that its position below was not that “soils prevent nitrates from migrating to groundwater,” but rather that “nitrogen, phosphorus, and other nutrients are taken up by crops and other vegetation, making MAFO discharges— which, by definition, are to ground water, not surface water— less likely to cause water pollution than CAFO discharges to surface waters.” It asserts that the ability of plants to “take up the nutrients within the soil is the very principle upon which the agricultural use of manure is based,” and that appellants acknowledge that crop and pasture land can absorb nutrients. Accordingly, MDE argues that the FDM “properly found that there was no dispute of fact on this point and that the ability of vegetation and soils to take up nutrients justifies separate standards for agricultural operations that discharge to surface waters and those that do not.” The statements to which appellants now object were made by the FDM in the context of appellants’ argument that MDE’s decision to establish a class of AFOs as MAFOs, and regulate them less stringently than CAFOs, was arbitrary and unsupported by the record.

The FDM rejected this argument, noting that MAFOs were regulated differently from CAFOs because they do not discharge to surface water. It stated: Discharges to groundwater and discharges directly to surface water are not the same and do not pose the same risk. Concentration of contaminants discharged to groundwater can be reduced by dilution, attenuation, chemical or biological reactions, and uptake by plants before that groundwater enters surface water. The GP does not leave MAFOs unregulated.

They are subject under the GP to design and operational standards and a NMP. The FDM’s comments do not indicate that they were made in response to an argument, as alleged on appeal, that there was a dispute of material fact regarding “whether discharges to groundwater and discharges to surface water pose the same ⁷⁰³ risks.” We have reviewed the record and have been unable to find anywhere that this argument was made