Citizens for Rewastico Creek v. Commissioners of Hebron

BISHOP, Judge. Citizens for Rewastico Creek, a civic organization, and its individual members (Citizens) appeal the judgment of the Circuit Court for Wicomico County which affirmed the administrative decision of the Maryland Department of Health and Mental Hygiene (the Department) to issue to the town of Hebron a permit authorizing the discharge of treated sewage into the Rewastico Creek. Appellees are the Department and the Commissioners of Hebron (the Commissioners). 1 Appellants raise two issues: I. Was evidence improperly excluded from the administrative proceedings?

II

Was the denial of a de novo or limited rehearing upon the withdrawal of the original hearing examiner proper? FACTS In 1976, because of the widespread failure of private septic systems which posed a health threat to the community, the town of Hebron began the process of planning, funding and constructing a municipal sewage treatment facility. Studies of various alternatives were undertaken, federal and state funds were obtained, and, after public hearings, a Facilities Plan was approved by the Department and by the Federal Environmental Protection Agency (the ⁴⁶⁹ E.P.A.). The selected alternative was a lagoon treatment plan with a discharge to Rewastico Creek (the Creek), a small tributary of the Nanticoke River and part of the greater Chesapeake Bay system.

After approval of the facilities plan and the obtention of funding, the next step was to obtain a discharge permit from the Department pursuant to Md. Health-Environmental Code Ann. § 9-324. After further studies, the Department issued a proposed discharge permit which contained specific guidelines. Pursuant to COMAR 08.05.06.01 et seq., Citizens requested an adjudicatory hearing on the discharge permit. The Department appointed William O. Jensen as the Hearing Examiner.

After ruling at a prehearing conference that design alternatives and the need for the system were not issues for the hearing, a five day hearing was held during which extensive evidence was presented. After the hearing but prior to any proposed decision, Mr. Jensen resigned. Citizens requested an entirely new hearing. This request was denied; however, there was contained in the order denying the request a provision for the substitute hearing examiner to hear the testimony of specific witnesses, proposed by the parties, whose credibility was in question and to determine the issue or issues affected by that testimony.

Based on the criterion set out in the order, both sides proposed that certain witnesses be heard. The newly appointed Examiner, Elizabeth M. Eckhardt, declined to hold a limited rehearing, stating that it would not be necessary in order to decide the matter. Subsequently, the Hearing Examiner issued proposed Findings of Fact, Conclusions of Law, and a Recommendation that the discharge permit be issued. After receiving written exceptions and hearing oral argument, the final decision-maker, Assistant Secretary for Environmental Programs, William M. Eichbaum, overruled Citizens’ exceptions and adopted with some further elaboration the proposed Findings of Fact, Conclusions of Law and Recommendation of the Hearing Examiner as the final decision of the Department. ⁴⁷⁰ Citizens appealed to the Circuit Court for Wicomico County pursuant to Md.Ann.Code, art. 41, § 255 2 and Rule B2.

After accepting memoranda and hearing oral argument, the court issued a comprehensive opinion affirming the Department’s decision to issue the discharge permit. Citizens then noted an appeal to this Court pursuant to Md. State Gov’t Code Ann., § 10-216. I. Introduction! A. Standard of Review In this appeal we must apply the very limited standard of review applicable to the decisions of administrative agencies.

Cognizance must be taken of the agency’s expertise and the administrative decision therefore carries a presumption of correctness. In reviewing factual conclusions, this Court may not substitute its judgment for that of the agency. The administrative decision will not be disturbed on appeal if substantial evidence supports factual findings and no error of law exists. See Juiliano v. Lion’s Manor Nursing Home, 62 Md.App. 145, 152-53 , 488 A.2d 538 (1985); Commission on Human Relations v. Washington Co. Commissioners, 59 Md.App. 451, 455 , 476 A.2d 222 cert. denied, 301 Md. 354 , 483 A.2d 38 (1984); Secretary v. Crowder, 43 Md.App. 276, 280-82 , 405 A.2d 279 , cert. denied, 286 Md. 745 (1979).

B. Discharge Permits Obtaining a discharge permit is a necessary prerequisite to the discharging of any pollutants into waters of the ⁴⁷¹ State. See Md. Health-Environmental Code Ann., § 9-323. The standards by which the Department may issue a discharge permit are set forth in Md. Health-Environmental Code Ann., § 9-324: Issuance of discharge permit. (a) In general.—Subject to the provisions of this section, the Department may issue a discharge permit if the Department finds that the discharge meets: (1) All applicable State and federal water quality standards and effluent limitations; and (2) All other requirements of this subtitle.

(b) Information meeting and public hearing.—Before issuing a discharge permit, the Department shall: (1) In appropriate cases, hold an information meeting; and (2) Provide an opportunity for a hearing on the subject. (c) Time and place of information meeting.—The information meeting shall be held at least 15 days before the public hearing in the geographical area that will be affected if the discharge permit is issued. (d) Public notice of application.—The Department shall give public notice of each application for a discharge permit by: (1) Providing appropriate notice of the application for a discharge permit within 30 days after receipt of the application; (2) At least 30 days before the public hearing, inserting an appropriate notice for at least 1 business day in a newspaper of general circulation in the county where the facility for which the permit is sought is located; (3) Making available to the public appropriate documents, permit applications, supporting material, plans, and other relevant information; and (4) Sending copies of the notice of public hearing to the units of local government, including sewer and water ⁴⁷² agencies, that have jurisdiction over the area where the facility for which the permit is sought is located. The statutes also grant to the Department authority to adopt regulations related to the issuance of discharge permits.

Md. Health-Environmental Code Ann., § 9-325 (1985). Pursuant to such regulations, appellants initiated the adjudicatory hearing which is the subject of this appeal. See COMAR 08.05.06. 3 With this background in mind, we turn to the Citizens’ contentions.

II

Evidentiary Issues A. Facility Alternatives In the pretrial order, the Hearing Examiner ruled that design alternatives were not an issue in the adjudicatory hearing. Citizens does not attack this ruling directly, but rather they assert that the Hearing Examiner improperly excluded evidence of “cheaper and environmentally preferable alternatives to the proposed discharge.” In the prehearing process, Citizens had proffered reports from engineering and environmental consultants which contained alternative approaches to treating Hebron’s sewage. Appellees assert that the ruling of the Department which was affirmed by the circuit court is correct: that alternative treatment plans were not an issue at the discharge permit stage but rather were issues properly to be considered at the earlier facility planning stage. Citizens rely on regulations issued by the Department which in relevant part provide: ⁴⁷³ H. Criteria for the Issuance and Reissuance of State Discharge Permits.

(1) The Department of Health and Mental Hygiene shall issue or reissue a State discharge permit upon a determination that: (a) The discharge or proposed discharge specified in the application is or will be in compliance with all applicable requirements of: * * * * * * (iv) Federal and State law or regulation. * * * * * * (c) If the discharge or proposed discharge is from publicly owned treatment facilities or other facilities, including privately owned sewage treatment systems, the discharge is in compliance with: (i) The basin water quality management plan adopted pursuant to § 3-106 of the Natural Resources Article, Annotated Code of Maryland and the continuing planning process required under § 303(e) of the Federal Water Pollution Control Act Amendments of 1972, codified as Title 33, U.S.C. COMAR 10.50.01.08H. Citizens contends that the federal law and the basin plan, with which the regulations require compliance in issuing a discharge permit, necessitate the consideration of alternative treatment plans. Specifically, they cite language from the Federal Water Pollution Control Act, 33 U.S.C. 1281 et seq., which provides: (d) Waste treatment management construction of revenue producing facilities The Administrator [of the E.P.A.] shall encourage waste treatment management which results in the construction of revenue producing facilities providing for— (1) the recycling of potential sewage pollutants through the production of agriculture, silviculture, or aquaculture products, or any combination thereof; ⁴⁷⁴ (3) the reclamation of wastewater; Citizens further relies on the Nanticoke River Basin Plan which provides at page VI-10: In applications where site conditions and economics allow, land disposal will be promoted by the State to ensure equal and adequate consideration with other alternatives. To implement this policy, all sewage facilities planning studies are required to fully consider all feasible land disposal techniques____ They also refer us to page III—22 of the same plan: All facilities plans must fully consider all feasible land treatment methods as alternatives to surface discharge.

It is the State policy to promote equal and adequate evaluation of land treatment alternatives. (emphasis added). The above provisions must be considered in the context of the several steps involved in the creation of a sewage treatment facility. The initial step involves demonstrating the need for a facility, obtaining funding, and obtaining State and Federal approval of the facility plan.

See generally 40 C.F.R. 35.917 (1984); COMAR 10.17.80-09; Nanticoke River Basin Plan at III—12—23, 31-32. It is at this step that the above provisions require that various treatment alternatives be considered. The latter step of the process, at issue here, involves only the obtaining of a discharge permit from the State. As the Department and the Circuit Court concluded, the provisions Citizens rely upon do not require a reconsideration of treatment alternatives at the discharge permit stage.

To find otherwise would alter the carefully constructed and already time-consuming administrative process. The clear intent of the regulatory scheme is that treatment alternatives be considered in the facility planning stages of the process. 4 ⁴⁷⁵ Citizens’ reliance on Montgomery Environmental Coalition v. Costle, 646 F.2d 568 (D.C.Cir.1980) is misplaced. Costle involved whether the Blue Plain Sewage Treatment Plant located on the Potomac River was in compliance with the already existing E.P.A. permit. The Costle Court ruled that, under the federal statute and standards there involved, evidence of treatment alternatives which would bring the plant into compliance with the previously issued permit was improperly excluded.

Costle is factually and legally distinct from this case which involves a new facility seeking a discharge permit under Maryland law. B. Need for Discharge Citizens’ second evidentiary argument is that in ruling that they could not present evidence of issues involved in the State’s “Anti-Degradation Policy,” the Hearing Examiner improperly excluded evidence that the sewage treatment facility was not needed or justified. The “Anti-Degradation Policy” is set forth in COMAR 10.50.01.02E(1): (1) Certain waters of this State possess an existing quality which is better than the water quality standards established for them. The quality of these waters shall be maintained unless: (a) The Department determines a change is justifiable as a result of necessary economic or social development; and (b) A change will not diminish uses made of, or presently possible, in these waters. ⁴⁷⁶ Citizens assert that this provision required the Hearing Examiner to weigh the evidence of the amount of degradation versus the resulting social benefits.

They do not tell us, however, the specific evidence that they sought to introduce. The single citation to the record extract is to a portion of the testimony of their expert witness, Harold Miller: [I]t is my opinion that the facilities plan did not have enough documentation given to it that there was a serious public health risk from the existing failing septic systems, and that the selected plan which is the purpose, or which is the plan resulting in this discharge permit, proposed— MR. COHEN: I object. THE WITNESS: —is not cost effective.

MR. COHEN: I object. The witness has answered, anyway, over my objection, and I would simply ask the hearing officer to disregard the statement regarding the adequacy of the facilities plan and the determination that a sewer system is necessary since that is not the subject of this hearing. HEARING EXAMINER: Sustained.

The theory upon which appellants assert that the evidence should have been admitted, the anti-degradation policy, was not raised below in the portions, of the record to which appellants have referred us and therefore the issue is not properly preserved. Rule 1085. Even if we were to reach the point, in the absence of a more specific proffer of what evidence would have been presented, we have nothing to review and therefore can find no error. See Mack v. State, 300 Md. 583, 603 , 479 A.2d 1344 (1984); Parrish v. State, 64 Md.App. 663, 667 , 498 A.2d 673 (1985); Hartsock v. Strong, 21 Md.App. 110, 120 , 318 A.2d 237 (1974).

Further, as noted earlier, the need for the treatment system is properly an issue for the earlier planning stages and not for the discharge permit hearing. ⁴⁷⁷ III. Substitute Examiner and Rehearing Citizens contends that the denial of its original request for a de novo hearing upon the withdrawal of the original hearing examiner and the substitute hearing examiner’s decision not to conduct a limited rehearing of certain testimony effectively denies its right to a “live adjudicatory hearing before the finder of fact.” Citizens asserts that certain witnesses’ testimony was in conflict and that the “case turns on resolution of this conflicting testimony” and therefore the hearing examiner should have actually heard the testimony and seen the witnesses rather than merely reading the “cold record.” The circuit court found no error in the administrative decisions which precluded any rehearing of testimony. We find the circuit court’s detailed analysis of this issue to be correct and shall adopt as our own in the Appendix the pertinent portion of Judge Pollitt’s opinion. 5 JUDGMENT AFFIRMED; CROSS-APPEAL DISMISSED; COSTS TO BE PAID BY APPELLANTS. APPENDIX Memorandum Opinion We begin by noting that: The general rule in both the federal and state systems— although some states have decided otherwise, often on the particular unfairness of fact of the case being decided—is that in the absence of specific statutory direction to the contrary the deciding member or members of an administrative or quasi-judicial agency need not hear the witnesses testify---- The