Howard County v. Davidsonville Area Civic & Potomac River Associations, Inc.

ROSALYN B. BELL, Judge. This case arises out of a decision by the Department of Health and Mental Hygiene (Department), appellant, granting a discharge permit to Howard County (County), appellant, for a sewage treatment plant. The Little Patuxent Wastewater Treatment Plant (County Plant) discharges treated wastewaters, called effluent, into the Little Patuxent River. The Potomac River Association, Inc. and the Davidsonville Area Civic Association, Inc., appellees, are two voluntary associations located in St. Mary’s County and Anne Arundel County, respectively.

The County applied to the Department to renew its discharge permit. Appellees, believing the permit would allow excess pollution into the waters, sought an adjudicatory hearing before the Department. At the conclusion of the adjudicatory hearing, the Department’s hearing examiner issued a proposed decision finding that the permit met all applicable regulations and adequately protected water quality and concluding that the permit should be issued as proposed. After considering written exceptions and oral argument, the Department issued a Final Order approving the permit.

Appellees appealed this decision to the Circuit ²³ Court for Calvert County. The circuit court found the Department’s decision was arbitrary and ordered the Department to modify substantially the terms of its permit. It also ordered the case remanded to the Department to consider new evidence. The Department and the County appeal presenting a number of questions: —Was there substantial evidence to support the Department’s findings that the permit adequately protected water quality? —Did the trial judge err in concluding the Department’s Final Order was arbitrary and thus substituting its judgment for that of the agency? —Did the trial judge err in concluding the Department acted arbitrarily in prejudging the issue? —Did the trial judge err when he remanded the decision to the Department to consider additional evidence? —Did the trial judge err in ordering a modification of the permit?

Before we reach the merits of these issues, we need to set out the statutory and factual background of this case. The Regulatory Scheme The Department was charged, inter alia, with managing, improving, controlling and conserving the waters of Maryland. A person may not discharge any pollutants into the waters of this State or operate any facility that discharges pollutants except as permitted by a State discharge permit issued by the Department. Md. Health-Envtl.Code Ann. §§ 9-322, 9-323 (1982).

The Department is authorized to adopt rules and regulations that set effluent standards 1 for discharge permits and water quality limitations 2 to protect ²⁴ public health, recreation, industry and wildlife. Md. HealthEnvtl.Code Ann. § 9-314 (1982). In adopting regulations, the Department is to consider, among other things, the character of the area involved, the nature of the receiving body of water, and the technical feasibility and the economic reasonableness of measuring or reducing the particular type of water pollution at issue. Md. Health-Envtl.Code Ann. § 9-313 (1982).

The Department may issue a discharge permit upon its determination that the terms of the permit meet all State and federal regulations, the water quality standards and the appropriate effluent limits. Md. Health-Envtl.Code Ann. § 9-324 (1982); COMAR 10.50.01.08H(l)(a). The Department’s effluent standards must be at least as stringent as federal standards. Md. Health-EnvtLCode Ann. § 9-314(c) (1982). 3 Publicly-owned treatment works, such as the County Plant, must meet the effluent standards of what is known as “secondary treatment.” 4 COMAR 10.50.01.08J(3)(a).

If the Department determines that the facility is discharging effluent into waters where secondary treatment is insufficient to maintain water quality, then “advanced waste treat ²⁵ ment” is required. 5 COMAR 10.50.01.08J(3)(b), (c), (d). A plant discharge permit must also comply with the basin water quality management plan 6 and the approved county water and sewerage plan. 7 COMAR 10.50.01.08H(l)(c)(i), (ii). The Patuxent River and Dissolved Oxygen The Patuxent River, a tributary of the Chesapeake Bay, is over 110 miles in length and, on its way to the Bay, flows through portions of Prince George’s, Howard, Anne Arundel, Calvert and St. Mary’s Counties. 8 The Little Patuxent River is one of two major tributaries flowing into the Patuxent. Water quality studies have determined that the surge in the addition of nutrients, particularly nitrogen and phosphorus, has contributed to a deterioration of water quality in the Patuxent River by increasing the level of algae.

Algae are an important part of the food chain in the marine ecosystem. The plants can also be responsible for depleting dissolved oxygen supplies in the water. Dissolved oxygen is necessary to sustain aquatic wildlife, both flora and fauna. During the time algae are living, the plants create dissolved oxygen through photosynthesis.

As the plants respire, they consume oxygen. The chemical process ²⁶ involved in their decomposition results in the further consumption of dissolved oxygen in the water. Thus, with large quantities of algae dying, the result is a depletion of the level of dissolved oxygen. This in turn reduces water quality and threatens aquatic life.

Nutrient control management attempts to control the level of production of the plants so as to maintain adequately the level of dissolved oxygen. Algae require the same conditions to grow and proliferate as all plants. These conditions include light, warmth, carbon, hydrogen, oxygen, and, most relevant here, the nutrients phosphorus and nitrogen. If any of these conditions are less than optimum, their growth will be retarded.

Nutrients may well be the only factor affecting algal growth which feasibly can be controlled. Even nutrient control, however, is difficult. This difficulty exists in part because both phosphorus and nitrogen enter the Patuxent River from both nonpoint sources, such as farm runoff, urban storm water, groundwater inflow and the atmosphere, 9 and from point sources, such as sewage treatment plants located along the River. 10 In the late 1970s, the State and the United States Environmental Protection Agency (EPA) sought to determine the extent to which nutrient control strategies would be effective in controlling algal growth in the Patuxent River and in turn improve water quality. One of the strategies proposed was to reduce the level of phosphorous and nitrogen discharges from sewage treatment plants flowing into the River.

Quantifying the exact role discharged nutrients play in algal growth is complicated and difficult. The Patuxent Basin Area, which includes the Little Patuxent River, is composed of both fresh-water segments, and salti ²⁷ er, more estuarine, waters. The upper portion of the River area, where the County Plant is located, is fresh water. Scientists agree that the growth of algae in the freshwater portion can be controlled by reducing the nutrient phosphorus.

The lower portion of the River flows into the Chesapeake Bay and is saltier. The crucial question in the case at bar concerns the reduction of nitrogen or phosphorus and the resulting effect on algal growth in the lower, estuarine portion of the River. Quantification of the effect of these nutrients in this area is complex because of (1) the relative extent to which other factors, such as animal grazing and reduced sunlight, may affect algal growth; (2) the uncertainty of how upstream nutrients from both point and nonpoint sources affect this portion of the River downstream; (3) the effect of the intrusion of Chesapeake Bay water back into this section of the River; and (4) the relationship of bottom sediment and its demand for oxygen in this area. The EPA, because of its responsibilities both to fund improvements through construction grants 11 and set permit limits, together with the Department, were interested in determining the benefit of advanced nutrient reduction technology in the Patuxent River.

The Department and the EPA sponsored a study in this regard. The report, prepared by HydroQual, Inc., entitled “Water Quality Analysis of the Patuxent River,” concluded that limiting the introduction of phosphorus from all major sewage treatment plants on the Patuxent River through advanced phosphorus removal would be the most effective means of controlling excessive algal growth in the River as a whole. The report was issued in August, 1981. ²⁸ In December, 1981, the Department sponsored a three-day meeting of environmentalists, scientists and other interested parties to examine the report and to determine the most appropriate nutrient control strategy for the Patuxent River. This meeting, referred to as the “charette,” concluded with a recommendation that both phosphorus and nitrogen removal should be implemented in order to reduce the pollutant load down to the approximate level of what it was thought to have been in the late 1950s.

The Washington Suburban Sanitary Commission (WSSC) volunteered to construct advanced nitrogen removal facilities at two of its treatment plants to help the Department and the EPA assess the cost and effect, if any, nitrogen removal would have in reducing algal growth in the River. The determination was made to record any nitrogen reductions achieved in the River pursuant to the WSSC’s efforts before requiring advanced nitrogen removal for some or all sewage treatment plants along the Patuxent River. The recommended strategy of advanced phosphorus removal was incorporated in the next Patuxent River basin plan. The County Plant The County Plant was originally built by Howard County in 1965.

Since the construction of the Plant, the County has received permits from the State to discharge effluent into the Little Patuxent River. It is uncontested that the County Plant is a clean, efficient facility. Effluent entering the Plant is biologically treated to remove large amounts of oxygen-demanding substances, suspended solids and other substances. 12 During this biological treatment, substantial ²⁹ amounts of both nitrogen and phosphorus are also removed. In addition, an advanced waste treatment process further removes phosphorus to one part per million. 13 Appellees have not challenged the ability of the County Plant to meet the terms of its previous discharge permits.

Rather, they contend that the Department must require, through more restrictive limits in the discharge permit, that the County install advanced nitrogen removal 14 to remove ³⁰ the remaining dissolved nitrogen in the Plant’s effluent. 15 The Department and the EPA determined that advanced nitrogen removal was not justified. The Agency Action On December 16, 1981, the County submitted an application to the Department to renew its permit. In accordance with Maryland law and regulations, and its review of the findings of the HydroQual report, the charette recommendations, the basin plan for the Patuxent River, and the County water and sewer plan, the Department prepared a proposed or draft permit that set effluent limitations. These limits included the federally-mandated effluent limits for publicly-owned treatment plants which require secondary treatment and, in addition, stricter limits to achieve advanced phosphorus treatment.

The Department then solicited comments from the EPA, the U.S. Army Corps of Engineers and several State agencies on the proposed permit. It also prepared a fact sheet to be distributed to all interested parties and a notice of public hearing and opportunity to comment on the proposed permit. Appellees, believing that the permit should also set specific limits for nitrogen, requested an adjudicatory hearing. At this hearing, appellees did not take issue with the determination that the proposed permit was adequate to meet all water quality requirements in the fresh water and the upper estuary portion of the River, but instead attempted to show that the remaining nitrogen in the Plant’s effluent would have an adverse effect on water quality in ³¹ the lower estuary approximately 50 to 70 miles downstream from the Plant’s discharge point.

At the conclusion of the adjudicatory hearing, the hearing examiner found that the evidence failed to establish that advanced nitrogen removal would, to any reasonable certainty, have a significant positive effect on water quality in the lower estuary area of the Patuxent River. Accordingly, the hearing examiner’s proposed findings of fact and conclusions of law recommended issuance of the permit for the County Plant as proposed with advanced phosphorus removal only. Appellees filed written exceptions and presented oral argument to the Department’s final decision-maker, who ratified the proposed decision of the hearing examiner. Appellees then appealed to the Circuit Court for Calvert County challenging the Department’s determination not to require advanced nitrogen removal at the County Plant through its discharge permit.

The circuit court reversed and remanded the decision precipitating this appeal. I. MOTION TO STRIKE Before we reach the substantive issues presented by this appeal, this Court must address appellant Howard County’s Motion to Strike Appellees’ Brief and to Prohibit Appellees from Participating in Oral Argument. Prior to argument, we granted that motion pursuant to Rule 1030 e. On December 16,1986, this Court sent a briefing schedule to all counsel.

By stipulation of counsel, the time for filing appellants’ briefs was extended to February 13, 1987. Appellants met that deadline. Counsel also stipulated that the time for filing appellees’ brief was extended to March 23, 1987. Oral argument was set by this Court for April 20, 1987.

Two days after the March 23 deadline, appellees served on appellants a motion for a further extension of time to file their briefs and to postpone the scheduled April 20th argument. ³² By a letter dated March 26, 1987, the Clerk of this Court notified all counsel that this Court had entered an order denying appellees’ motion. Despite this order, on April 6, 1987—two weeks beyond the stipulated March 23, 1987 deadline—appellees filed a brief and appendix. Rule 1030 sets out the time requirements for the filing of briefs. Rule 1030 a.2. provides that, within 30 days after an appellant’s brief is filed, the appellee shall file copies of a printed brief.

Rule 1030 a.3. permits the filing of a reply brief by the appellant in response to the appellee’s brief by a certain time “but in no event later than ten days before the case is called for argument.” Rule 1030 e. apprises the parties of the consequences of default: “When an appellant is in default under this Rule the case may be dismissed on motion or by this Court of its own motion; and when an appellee is in default, he will not be heard except upon consent of the appellant, or by request of Court.” (Emphasis supplied.) The Rule speaks in mandatory terms. If an appellee fails to file a brief timely, unless the appellant or this Court consents to hearing from the appellee, both by way of a brief and oral argument, 16 the appellee will not be permitted to argue its respective position. In the case sub judice, appellees not only failed to file a brief within the extended time period, they filed it a substantial period of time after the deadline, and did so in the face of an order of this Court to the contrary. In their motion in opposition to the motion to strike, appellees never explained to this Court the reasons for their tardiness. 17 They only oppose the motion on the grounds that (1) appellants have not suffered irreparable injury and (2) that ³³ appellees should be, in essence, exempt from the time requirements because “on one side, the forces of government [appellants] are accomodating [sic] principally land-based economic and population growth, where as, on the other side private persons and organizations [appellees] are representing declining water-based industry or not-for-profit interest groups seeking greater protection of the State’s waters than Appellants would provide.” We are not persuaded.

Appellants and this Court have been prejudiced. Appellees’ late filing reduced the time appellants had to file a reply brief to less than four days. Moreover, the work of this Court was delayed by at least two weeks. The pre-argument analysis by this Court was unnecessarily postponed and compressed by appellees’ unilateral actions, and such postponement directly threatened this Court’s understanding of this complex case.

The time requirements not only ensure the orderly administration of justice, but allow this Court time to prepare thoroughly for the argument phase of an appeal. We also reject appellees’ claim that their tardiness is excusable because of their commendable efforts to protect the environment. Every litigant must be accorded the same degree of respect from this Court, regardless of the benevolent or self-interested position they espouse. Likewise, every litigant must accord the Rules and orders of this Court the highest degree of respect, regardless of the substance of their particular appeal.

Appellees’ conduct in filing a brief two weeks beyond an already-extended schedule, particularly in the face of this Court’s order, is plainly improper. They cannot ignore the needs of appellants and this Court and help themselves to a substantial extension, even after we, by specific order, have denied such extension. Their conduct flaunts the provisions of Rule 1030 and the order of this Court. Accordingly, we exercised our discretion and authority and granted appel ³⁴ lant Howard County’s motion 18 to strike appellees’ brief and deny oral argument.

See Podolski v. Sibley, 12 Md.App. 642 , 648 n. 6, 280 A.2d 294 (1971). We now turn to an examination of the substantive issues presented by appellants’ appeal.

II

SCOPE OF ADMINISTRATIVE REVIEW This Court has recently and comprehensively reiterated the standard of review of agency action: “[A] very limited standard of review [is] applicable to the decisions of administrative agencies— The administrative decision will not be disturbed on appeal if substantial evidence supports factual findings and no error of law exists.” Citizens for Rewastico Creek v. Commissioners of Hebron, 67 Md.App. 466, 470 , 508 A.2d 493 , cert. denied, 306 Md. 260 , 513 A.2d 314 (1986). The Court of Appeals has stated the rule in another way: “We have made it quite clear that if the issue before the administrative body is ‘fairly debatable’, that is, that its determination involved testimony from which a reasonable man could come to different conclusions, the courts will not substitute their judgment for that of the administrative body—” Eger v. Stone, 253 Md. 533, 542 , 253 A.2d 372 (1969). This narrow scope of review is imposed because “[c]ognizance must be taken of the agency expertise and the administrative decision therefore carries a presumption of correctness.” Citizens for Rewastico Creek, 67 Md.App. at 470 , 508 A.2d 493 . A reviewing court is not permitted to ³⁵ substitute its judgment for that of the agency.

Citizens for Rewastico Creek, 67 Md.App. at 470 , 508 A.2d 493 . This Court in Secretary of Health and Mental Hygiene v. Crowder, 43 Md.App. 276, 281 , 405 A.2d 279 (1979), further explained the rationale for this rule: “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.” (Citations omitted). With these precepts in mind, the circuit court must review the record before the agency and decide whether there was substantial evidence before the agency, based on the record as a whole, to support the agency’s conclusions and final order. Peppin v. Woodside Delicatessen, 67 Md.App. 39, 44-45 , 506 A.2d 263 (1986).

In the present appeal, the role of this Court is essentially to repeat the circuit court’s review of the administrative record to determine whether the record as a whole reflects substantial evidence in support of the agency’s conclusions. Peppin, 67 Md.App. at 45 , 506 A.2d 263 . This standard of review specifically applies to a final order of the Department issuing a discharge permit for a municipal wastewater treatment plant. Citizens for Rewastico Creek, 67 Md.App. at 470 , 508 A.2d 493 .

III

SUBSTANTIAL EVIDENCE It is clear that in concluding that the Final Order of the Department was arbitrary, the circuit court failed to follow the controlling law. Specifically, the court failed to consider whether the record as a whole supported the Department’s decision not to require advanced nitrogen removal. This Court’s review of the testimony presented ³⁶ demonstrates there was substantial probative evidence presented before the Department to support the agency’s decision. To substantiate this conclusion, we briefly set out the more pertinent evidence presented by appellants.

Stephen Luckman, a water resources engineer with the Water Management Administration’s Permit Division within the State Office of Environmental Programs of the Department, testified that the EPA, as well as several State environmental departments, approved the permit without any negative comments. He stated that he prepared the draft permit after using a computer analysis tool, known as mathematical modelling, to analyze water quality effects of secondary treatment limits for discharges on the upper estuary. He determined that the permit discharges would not have any adverse effects on dissolved oxygen levels in the River as a whole, although he recognized, but dismissed as problematical and scientifically uncertain, the possibility that nitrogen discharges from the Plant would flow approximately 70 miles downstream to the lower estuary encouraging algal growth which in turn might reduce dissolved oxygen levels. He concluded by asserting that, in his opinion, it was unlikely that removal of nitrogen at the County Plant would have any significant beneficial effect on water quality.

Luckman also testified that it is technically difficult to implement both nitrogen and phosphorus removal at the same time. He also opined that implementation of nitrogen removal at this stage of scientific research may be unnecessarily wasteful of resources and disruptive of more appropriate treatment processes at sewage treatment plants because of the infancy of nitrogen removal technology. Arcadio Sincero, chief of the Water Management Administration’s Permit Division and a chemical and environmental engineer, agreed with Luckman’s conclusions. He explained that removing only phosphorus, and not nitrogen, was the most appropriate approach because certain species of algae, known as blue-green algae, have the ability to “fix” or pull nitrogen gas directly from the atmosphere. ³⁷ Since nitrogen is the most prevalent element in the atmosphere, he opined that removing nitrogen would simply stimulate the growth of nitrogen-fixing algae.

Sincero related that the blue-green algae are the least desirable form of algae, the most noxious to fish, and the most useless to the food chain. Richard Sellars, Jr., Director of the Water Management Administration’s Office of Environmental Programs, testified that, based on his understanding of the effects of nutrients on water quality, only phosphorus should be removed from the County Plant’s discharged effluent. He believed that advanced nitrogen removal at the County Plant would have no measurable impact on the water quality of the lower estuary. He also related that there was still disagreement and uncertainty in the scientific community about the most effective control for algal growth in the Chesapeake Bay region.

Sellars stated that if, after monitoring the effects in the lower estuary of WSSC’s voluntary advanced nitrogen removal at its plants, the Department finds a scientific connection between advanced nitrogen removal and dissolved oxygen improvement, the Department would require the County Plant to construct facilities to comply with advanced nitrogen removal. 19 Charles App, an official with the EPA and involved in water quality management planning for the federal agency, echoed the previous witnesses’ opinions. He stated that in his professional opinion the most appropriate strategy for improving the Patuxent River was to remove phosphorus at all upstream sewage treatment plants because of the certain and beneficial effect of this strategy. App explained that in his opinion the best way to improve water quality in the lower estuary was to reduce the amount of algae which could flow downstream into the lower estuary by reducing phosphorus. He opined that advanced nitrogen removal should not be implemented until the effect of nitrogen from ³⁸ upstream plants is shown to have a significant impact on the lower estuary.

He stated that there was no scientific evidence that nitrogen discharged many miles upstream would have a measurable impact on the lower estuary because of the tendency of nitrogen after it entered the water to (1) return to the atmosphere as nitrogen gas; (2) become buried in the sediment; or (3) be taken up by fish, marshes and other organisms before reaching the lower estuary. Concurring with Sincero that a nitrogen-removal approach may foster the growth of blue-green algae, App further stated that this type of algae was found to have increased in the Potomac River when nitrogen was found to be the limiting nutrient. 20 App concluded that because the advantages of advanced nitrogen removal were so uncertain, the EPA could not provide grant assistance for constructing advanced nitrogen removal facilities. Dr. Donald O’Conor, principal consultant for the firm of HydroQual, Inc. and a doctor of sanitary engineering, explained the methodology employed in formulating the HydroQual report and reiterated the conclusion that phosphorus rather than nitrogen should be removed. He rationalized as follows: “Now, the reason why I am saying phosphorus rather than nitrogen, because I believe from what we know now that phosphorus will have a much greater impact than will the nitrogen.

I know that if you put nitrogen [removal process] in, it probably would result in improvement. However, for the dollar spent, I believe the phosphorus removal will produce much greater, relevant improvement and might be sufficient to restore the environment to the state which it was previously____” He agreed with Sincero and App that nitrogen removal may induce the growth of nitrogen-fixing bacteria, but stated it was unlikely. ³⁹ In response to the experts presented by appellants, appellees presented several expert witnesses who offered opinions contrary to those stated by appellants’ witnesses. In particular, Dr. Christopher D’Elia, associate professor at Chesapeake Biological Laboratories of the University of Maryland, reported on the results of a controlled study he and two others conducted on the growth of algae after the addition of nitrogen and phosphorus into Patuxent River water. The results showed that under a controlled setting there was a ten-fold stimulation of algal growth during the warm period with the addition of nitrogen and a three-fold stimulation of algal growth due to the influx of phosphorus during the wintertime. 21 He concluded that, depending on the season, either nitrogen or phosphorus should be removed. 22 D’Elia admitted, however, that the added nutrient concentration did not represent likely nutrient levels in the estuary.

He also conceded that the controlled tests did not take into account the effects of light and he was not certain about the transferability of the controlled results to the River as a whole. Moreover, D'Elia could not state with any degree of certainty or even conjecture that implementation of advanced nitrogen removal at the County Plant would significantly improve the level of dissolved oxygen in the lower estuary. Appellees’ other experts testified similarly to D’Elia. It is patent there was substantial evidence to support the agency’s conclusion not to require advanced nitrogen removal at the County Plant.

Both the State and the County presented credible witnesses and their testimony, together ⁴⁰ with thousands of pages of supporting documentary evidence, was more than enough upon which “reasoning minds” could reasonably reach the conclusion set forth in the Department’s Final Order. See Peppin, 67 Md.App. at 43 , 506 A.2d 263 . While there was disputed evidence and opinion expressed by appellees’ expert witnesses at the adjudicatory hearing, the Department’s Order presents a conclusion fully supported by the record. Accordingly, the circuit court clearly erred in concluding the Final Order was arbitrary.

IV

SUBSTITUTION OF JUDGMENT Appellants next assert the circuit court incorrectly substituted its judgment for that of the Department'by making its own qualitative evaluation of the evidence and testimony. We agree. We point to two examples to bear out this conclusion. The circuit court found salient in its Opinion and Order that the Department had acknowledged it did not consider advanced nitrogen removal a viable option at the time because of the uncertain state of science in this regard.

As the court concluded, “[t]he fact that the State was unsure of its position cannot provide the reason, or basis, for renewing the permit.” The court mischaracterized the real import of the agency’s action. The