Potomac Riverkeeper, Inc. v. Md. Dep't of the Env't

Panel: Woodward, C.J., Meredith, Friedman, JJ. Meredith, J. ¹⁷⁹ The Upper Potomac River Commission, an appellee and cross-appellant, is a Maryland agency that operates a wastewater treatment facility in Allegany County, Maryland. Potomac Riverkeeper Network ("Potomac Riverkeeper"), appellant, appeals the issuance of a renewed National Pollution Discharge Elimination System permit (an "NPDES permit") that was issued to Upper Potomac River Commission by the Maryland Department of the Environment ("MDE"), also an appellee. The renewed NPDES permit authorizes Upper Potomac River Commission to discharge treated water containing residual amounts of certain pollutants into the North Branch Potomac River.

A brief was also filed by Luke Paper Company, another appellee, which operates the paper mill that contributes the majority of the wastewater treated at the Upper Potomac River Commission plant. 1 The Chesapeake Bay ⁸²³ Foundation, Inc., submitted a brief as amicus curiae . After MDE published notice of its final determination to renew Upper Potomac River Commission's permit, Potomac Riverkeeper filed a petition for judicial review in the Circuit Court for Allegany County, challenging MDE's decision. Pursuant to Maryland Code (1982, 2013 Repl. Vol.), Environment Article ("EN"), §§ 1-601 et seq. , Potomac Riverkeeper argued in the circuit court that a remand of the permit renewal case ¹⁸⁰ to MDE is required because certain grounds for objections to the permit were not reasonably ascertainable during the public comment period, or, in the alternative, because the grounds for Potomac Riverkeeper's objections had not arisen until after the close of the comment period.

The circuit court denied Potomac Riverkeeper's request for a remand and affirmed MDE's final determination to issue the renewed NPDES permit. This appeal followed. QUESTIONS PRESENTED Potomac Riverkeeper presents the following questions for our review: 2 1. Does § 1-601(d) of the Environment Article require a reviewing court to remand a permit to MDE when the petitioner demonstrates that an objection was not reasonably ascertainable during the comment period or that the grounds for an objection arose after the comment period? 2.

Should the Court remand the permit to MDE for consideration of Potomac Riverkeeper's objection to the new methodology for calculating [Upper Potomac River Commission's] nitrogen and phosphorus discharges, since MDE did not incorporate that methodology into the permit until after the close of the comment period? 3. Should the Court remand the permit to MDE for consideration of Potomac Riverkeeper's objection that the permit is inconsistent with Maryland law and fails to protect the North Branch, since that objection is based on events ¹⁸¹ and state agency investigations that occurred more than a year after the close of the comment period? In addition to the questions presented by the appellant, Upper Potomac River Commission presents the following question as cross-appellant: "Whether the Circuit Court erred in not granting Responder [sic] Upper Potomac River Commission's Motion to Dismiss Appellant's original Petition for Review for failure to Comply with the Maryland Code, Time for Filing." We conclude that Potomac Riverkeeper's petition was timely filed, and answer "no" to Upper Potomac River Commission's question asking whether the circuit court erred in failing to dismiss the petition for judicial review. With respect to Potomac Riverkeeper's contentions, we hold that the circuit court did not err in declining to remand the permit to MDE.

Accordingly, we shall affirm the judgment of the Circuit Court for Allegany County. ⁸²⁴ FACTS AND PROCEDURAL BACKGROUND The Upper Potomac River Commission The Upper Potomac River Commission is "a state agency within the Department of Natural Resources created by an act of the Maryland [General Assembly] in 1936. The [Upper Potomac River] Commission operates the Savage River Dam six miles west of Luke[, Maryland,] and the waste treatment facility in Westernport ...." See "MDE Industrial Discharge Permits Division-Water Management Administration Summary Report and Fact Sheet 0230.UPRC.2013.fs.doc" (hereinafter "Summary Report and Fact Sheet"). The Summary Report and Fact Sheet provides this background information: The [Upper Potomac River Commission] waste treatment facility was constructed in 1960 principally to treat wastewater from the New Page (previously known as Westvaco) paper mill in Luke. It also handles municipal waste from the towns of Luke and Westernport, Maryland and Piedmont, West Virginia.

It treats an average of 22 million gallons per day of wastewater received from these sources in an activated ¹⁸² sludge process. Because this plant is primarily an industrial wastewater treatment plant, several treatment steps that are not typical of activated sludge sewage plants are necessary. They include: pH control (the addition of sodium hydroxide or sulfuric acid as necessary), cooling (necessary to protect the treatment plant bacteria in the summer and to allow the plant discharge to meet the temperature and dissolved oxygen limits), and nutrient addition capability (addition of aqueous ammonia and phosphoric acid). The effluent from this plant (Outfall 001) is discharged into the North Branch Potomac River through a dispersion structure that is designed to mix the effluent with the River.

(Emphasis added.) The Clean Water Act and the National Pollution Discharge Elimination System The Clean Water Act (the "CWA") was enacted by Congress in 1972. In order to fulfill its stated goal to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters," the CWA prohibits the discharge of "any pollutant by any person." 33 U.S.C. § 1251 (a) ; 33 U.S.C. § 1311 . This prohibition applies to the discharge of pollutants through a "point source." NPDES Permit Basics , EPA.GOV (June 13, 2018), https://perma.cc/RUN4-HUGX. 33 U.S.C. § 1362 (14) defines a "point source" as any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture.

Despite the CWA's facially total prohibition of the discharge of any pollutant, the CWA establishes a permitting system whereby holders of permits may discharge some amount of pollutants into waterways. See, e.g., ¹⁸³ Piney Run Preservation Ass'n v. County Com'rs of Carroll County, MD , 268 F.3d 255 , 265 (4th Cir. 2001). The Court of Appeals explained in Maryland Dept. of Env. v. Anacostia Riverkeeper , 447 Md. 88 , 96, 134 A.3d 892 (2016) : "Through the National Pollution Discharge Elimination System ('NPDES'), 33 U.S.C. § 1342 , either the [United States] Environmental Protection Agency ('EPA') or an EPA-approved state, such as Maryland, may issue permits exempting a ⁸²⁵ discharger from this [facially total] prohibition." NPDES permits issued by a state entity must contain water quality standards that meet or exceed federal standards. In Anacostia Riverkeeper , the Court of Appeals provided this explanation of the NPDES permitting process as it operates in Maryland: MDE is the authority in Maryland that administers the NPDES program.

Code of Maryland Regulations ("COMAR") 26.08.04.07. An NPDES permit, however, does not give a discharger carte blanche. "Generally speaking, the NPDES requires dischargers to obtain permits that place limits on the type and quantity of pollutants that can be released into the Nation's waters." S. Fla. Water Mgmt.

Dist. v. Miccosukee Tribe , 541 U.S. 95 , 102, 124 S.Ct. 1537 , 158 L.Ed.2d 264 (2004). These limits are called effluent limitations. See 33 U.S.C. § 1362 (11) (defining an effluent limitation as "any restriction established by a State or the Administrator on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into navigable waters, the waters of the contiguous zone, or the ocean, including schedules of compliance"). The type of discharge determines the type of limitations the permit must impose on the discharger.

Id. (emphasis added). As provided by COMAR 26.08.04.06(1) : "The term of each [NPDES] discharge permit shall be for a maximum of 5 years, unless the permit is previously amended, suspended, or revoked." ¹⁸⁴ In the present case, Upper Potomac River Commission is considered a point source under the CWA. Consequently, it needs an NPDES permit to discharge its effluent into the North Branch Potomac River, and the NPDES permit must impose effluent limitations that meet or exceed federal standards.

EN § 9-324(a). Total Maximum Daily Loads ("TMDLs") Total Maximum Daily Loads (hereinafter "TMDLs") - an important focus of Potomac Riverkeeper's contentions on appeal - "arise out of a multi-step process [under the CWA] that begins with the establishment of water quality standards ('WQS')." Anacostia Riverkeeper , supra , 447 Md. at 101 , 134 A.3d 892 . In Anacostia Riverkeeper , id. at 101-04 , 134 A.3d 892 , the Court of Appeals explained: Water quality standards, as the term itself suggests, protect water quality. 40 C.F.R. § 130.2 (d) ; COMAR 26.08.02.01(A). Each state must set water quality standards by assigning a "use" to a water, such as recreation or fishing, then developing criteria to protect those uses, as well as ensuring that higher quality waters do not degrade to the minimally accepted standard (also known as an anti-degradation policy). 33 U.S.C. § 1313 ; COMAR 26.08.02.01(B)(1).

All water quality standards are subject to EPA review, and if the EPA does not approve of them, the EPA will set those standards itself. 33 U.S.C. § 1313 . * * * After setting WQSs, the states establish effluent limitations in permits as the primary way to meet the WQSs because, as we have explained, effluent limitations restrict the discharge of pollutants. See 33 U.S.C. § 1362 (11).... Congress requires that "[e]ach State shall identify those waters within its boundaries for which the effluent limitations required by [ 33 U.S.C. § 1311 ] are not stringent enough to implement any water quality standard applicable ⁸²⁶ to such waters." 33 U.S.C. § 1313 (d)(1)(A). This is where the TMDL comes into play.

The TMDL tells a state what is the threshold amount of a pollutant ¹⁸⁵ that a body of water can tolerate before violating the WQS. See In re City of Moscow, Idaho, 10 E.A.D. 135 , 2001 WL 988721 , at ⁴ (EAB July 27, 2001) ("A TMDL is a measure of the total amount of a pollutant from point sources, nonpoint sources and natural background, that a water quality limited segment can tolerate without violating the applicable water quality standards."); EPA, Chesapeake Bay TMDL § 1.1, at 1-2 ("A TMDL specifies the maximum amount of a pollutant that a waterbody can receive and still meet applicable WQS."). States must establish TMDLs "at a level necessary to implement the applicable water quality standards," 33 U.S.C. § 1313 (d)(1)(C), when they identify those waters for which effluent limitations cannot implement the WQSs , 33 U.S.C.§ 1313(d)(1)(A). As with water quality standards, the states have the obligation of setting TMDLs and submitting them to the EPA for approval.

See supra MDE, John Creek Basin TMDL (The EPA approved of MDE's TMDL in March 2007.). If the EPA disapproves of the TMDLs, the EPA will set them itself. 33 U.S.C. § 1313 (d)(2). For this case, [waste load] allocations ("WLAs") are the most critical part of the TMDL equation. See 40 C.F.R. § 130.2 (i) (A TMDL is "[t]he sum of the individual WLAs for point sources and LAs [load allocations] for nonpoint sources and natural background.").

The WLA represents a water's "loading capacity" assigned to its "point sources of pollution. " Id. § 130.2(h).... Although TMDLs are informational tools, of which WLAs are a part, WLAs are more akin to restrictions. See Am.

Farm Bureau Fed'n v. EPA, 984 F.Supp.2d 289 , 328 (M.D.Pa.2013) ("WLAs are not permit limits per se ; rather they still require translation into permit limits ....") (citation omitted) (internal quotation marks omitted) (emphasis in original), aff'd, 792 F.3d 281 (3d Cir.2015). Under 40 C.F.R. § 122.44 (d)(1)(vii)(B), permitting authorities must ensure that effluent limitations "are consistent with the assumptions and requirements" of any approved WLA. ¹⁸⁶ (Emphasis added; footnotes and some internal citations omitted.) On December 29, 2010, the EPA issued the "Chesapeake Bay Total Maximum Daily Load for Nitrogen, Phosphorus and Sediment" (the "Bay TMDL"). The EPA explained that the Bay TMDL "responds to consent decrees in Virginia and the District of Columbia from the late 1990s." The Bay TMDL "identifies the necessary pollution reductions of nitrogen, phosphorus and sediment across Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia, and the District of Columbia and sets pollution limits necessary to meet applicable water quality standards in the [Chesapeake] Bay and its tidal rivers and embayments." The Bay TMDL allocates 79,218 pounds of nitrogen and 30,773 pounds of phosphorus per year to the Upper Potomac River Commission's waste treatment operation. According to the Bay TMDL, the models upon which these calculated limits are based "all include the loads from natural background conditions because all the Bay models are mass balance models and are calibrated to observed conditions." The Bay TMDL explains: ⁸²⁷ Natural loads of nitrogen, phosphorus, and sediment from forested land are also part of the monitored load at the free-flowing stream, river, and river input monitoring stations throughout the Chesapeake Bay watershed.

Because the loads are part of the total loads to which the Chesapeake Bay Program's mass balance models are calibrated, the natural nitrogen, phosphorus, and sediment loads in the system, while small, are fully accounted for in the Bay TMDL assessment. The Permit Renewal Process 3 On April 22, 2005, Upper Potomac River Commission applied to MDE for renewal of its NPDES effluent discharge ¹⁸⁷ permit. On May 2, 2005, MDE notified Potomac Riverkeeper and other interested parties that "the facility discharge permit is up for renewal." Public Notice and Opportunities for Comment Subsequent to interested parties receiving notice of the treatment facility's application for a renewed permit, MDE received written input from persons concerned about the water quality of the North Branch Potomac River. One such letter, dated July 11, 2005, was authored by Kenneth Pavol on behalf of the Western Maryland Professional Guides Association.

Mr. Pavol works as a professional fishing guide on the North Branch. Mr. Pavol's letter stated that, until his retirement several months earlier, he had been employed by the Maryland Department of Natural Resources Fisheries Service for 31 years. Mr. Pavol's letter raised concerns about the color and turbidity of the North Branch downstream from Upper Potomac River Commission. He stressed that "the typical reaction of visiting anglers when they first observe the outfall [ i.e. , discharge of water] of the [Upper Potomac River Commission] treatment is disbelief that the discharge is legal or even possible in 2005." Mr. Pavol also stated: "Although each permit renewal since 1990 has resulted in improvements to the [ ] discharge from the [Upper Potomac River Commission] plant, there is certainly room for further progress." Mr. Pavol took issue with the permit's measurement of effluent discharges on a monthly ¹⁸⁸ basis, which, according to Mr. Pavol, allowed for significant day-to-day variance in the appearance and odor of the North Branch.

He noted that, as a result of "the apparent wide variation in daily levels of suspended solids in the effluent from the [Upper Potomac River Commission] plant, ... the North Branch becomes highly discolored for many miles downstream, with higher levels of the associated odor as well." He stated: "[T]he wide variation in effluent quality makes it ⁸²⁸ very difficult to make a case for improved conditions and provide a high quality fishing experience." Mr. Pavol also stressed that "[t]he [use of a] monthly requirement simply does not adequately or consistently protect downstream water quality, angling quality, [a]esthetics, and quite possibly, the fishery resource as well." MDE held an informational meeting on September 5, 2005. A representative of Potomac Riverkeeper attended the meeting, at which the "main questions were directed toward treatment of color." In an 18-page letter dated April 17, 2006, Potomac Riverkeeper also submitted written comments to MDE addressing the application for renewal of Upper Potomac River Commission's NPDES permit. Potomac Riverkeeper's letter encouraged MDE to impose stricter limits on the permitted discharges of nutrients, and urged MDE to "revise the [Upper Potomac River Commission] permit to contain enforceable effluent limits on nitrogen and phosphorus" rather than mere "goals" that had been included in the previously-issued permit. Potomac Riverkeeper acknowledged that Special Condition A.1 of the existing permit "specifies that these 'goals' will be revised and converted to enforceable effluent limitations upon completion of a Total Maximum Daily Load (TMDL) for the North Branch Potomac River." Id. at 2 .

But Potomac Riverkeeper explained its objection to continuing that approach in a renewal permit: "[S]ince it is uncertain whether a TMDL will be developed for nutrient loading to the North Branch of the Potomac anytime soon, and since the North Branch remains impaired because of nutrients, Potomac Riverkeeper urges MDE to revise the [Upper Potomac River ¹⁸⁹ Commission NPDES] permit to contain enforceable effluent limits on nitrogen and phosphorus." Id. at 3 . The comments submitted by Potomac Riverkeeper on April 17, 2006, also urged MDE to require a reduction of the discharges that affect color, and asserted that, in the data reporting effluent measurements taken during 2003 through 2005 (submitted with the application for renewal), "[t]here is not a single reported instance in which the facility is in compliance with its effluent limit relating to color. Not only is the facility never in compliance, but it is drastically out of compliance with respect to color." In additional written comments submitted to MDE on December 20, 2006, Potomac Riverkeeper again reiterated that it had "major concerns involv[ing] the discharge of excessive color from the [Upper Potomac River Commission] facility." The Bay TMDL On December 29, 2010, the EPA issued its Bay TMDL report. MDE's Tentative Determination On February 13, 2013, MDE notified interested parties of its "tentative determination," pursuant to EN § 1-604(a)(1), to renew the Upper Potomac River Commission NPDES permit.

On February 19, 2013, MDE issued the draft permit, and on March 26, 2013, MDE held a public hearing to receive comments on the draft permit. At the hearing on March 26, 2013, MDE presented a summary of the proposed terms of the permit. The transcript of the public hearing is included in the record. In an "Overview of Permit Conditions" slide presentation, MDE explained that the renewed permit would impose more stringent limits on Upper Potomac River Commission's permission to discharge pollutants into the North Branch Potomac River.

We shall provide a summary of MDE's explanation of the changes to several ⁸²⁹ specific parameters that were included in the draft of the renewed permit. ¹⁹⁰ Total Suspended Solids ("TSS") and Turbidity The quantity of Total Suspended Solids in the body of water is a factor affecting the clarity or turbidity of the water, in addition to causing problems with the odor of the water. Turbidity is a measure of the cloudiness of water and is measured in nephelometric turbidity units ("NTUs"). Drinking water has a turbidity of 1 NTU. 4 MDE explained that the previously-issued permit's limits for Total Suspended Solids "were based on an evaluation of treatment performance during a five year period in the mid 1990s .... The proposed new limits are significantly more stringent." With respect to the limits in the Upper Potomac River Commission permit draft, MDE explained that "[t]he proposed end of pipe [monthly] average limit of 150 NTU and [daily] maximum of 300 NTU are new and much more stringent effluent limitations that are a result of a solids reduction program by the permittee.

These limitations reflect a 62% reduction in allowed concentrations and corresponding loadings." Color MDE also noted that, in the renewal permit, the proposed end-of-pipe "color loading limit" would now be "expressed as a loading limit" calculated as a formula that "will achieve more consistent protection of stream color than a concentration limitation." According to MDE, "[c]olor is a complex characteristic and requires[ ] flexibility to implement additional recycling and water use reduction improvements that the previous permit's concentration limit would otherwise discourage or ¹⁹¹ prevent." MDE further explained that the proposed in-stream color limitation for the proposed permit was 75 platinum-cobalt units ("PCU") as a weekly average, and 150 PCU as a daily maximum. Total Nitrogen Annual Maximum Loading Rate 5 With respect to the total nitrogen annual maximum loading rate, MDE stated: [T]he allocation level [for total nitrogen] will be shown in the permit as a goal and not a limit. [ 6 ] Historical data over the ⁸³⁰ past three years indicates that the facility achieves the [total nitrogen] loading allocation. While the assigned annual loading allocation is expressed as a goal, more stringent [total nitrogen] concentration limits of 3 mg/l monthly average and 6 mg/l daily maximum, limits which are not expected to inhibit the performance of the biological treatment system [utilized by the wastewater treatment plant to treat waste], are being added to the permit to ensure continued close attention to the [total nitrogen] levels. In the Summary Report and Fact Sheet, MDE noted that some amount of nitrogen can have a positive impact on water quality, and that point had been a consideration in establishing the above-quoted conditions in the draft permit: ¹⁹² [Upper Potomac River Commission] relies on addition of nitrogen as an essential treatment chemical for its biological treatment system, due to a lack of nitrogen in the untreated wastewater, necessary to meet technology based permit limits for BOD and [Total Suspended Solids].

Generally, EPA does not set effluent limits for parameters that are associated with wastewater treatment chemicals, assuming that system and site controls demonstrate good operation of the treatment technology.... Comments submitted in response to MDE's Tentative Determination Potomac Riverkeeper participated in the public hearing on March 26, 2013, and then submitted written comments to MDE on May 31, 2013. Among the concerns expressed in the written comments was this criticism of MDE's delay in issuing a renewed permit: As Potomac Riverkeeper stated at the public hearing on March 26, 2013, MDE's failure to reissue the permit in a timely manner is unacceptable. Potomac Riverkeeper urges MDE to promptly address the issues raised in these comments and at the public hearing and to ensure that future renewals are processed in a timely manner.

Potomac Riverkeeper also criticized MDE's tentative determination and draft permit for failing to impose defined limits on discharges of total nitrogen, stating: Potomac Riverkeeper objects to MDE's decision to express the Total Nitrogen Annual Maximum Loading Rate in the Tentative Determination as a goal, rather than an enforceable limit. Expressing the Annual Maximum Loading Rate as a goal is inconsistent with the Chesapeake Bay Total Maximum Daily Load ("Bay TMDL") total nitrogen annual allocation for the [Upper Potomac River Commission] facility and Maryland's Phase II Watershed Implementation Plan ("WIP").... In order to provide certainty regarding compliance with the Bay TMDL, Potomac Riverkeeper asks MDE to incorporate the annual load limit for ¹⁹³ TSS into the final permit, in addition to the daily loads already included in the Tentative Determination. (Footnote omitted.) In Potomac Riverkeeper's written comments submitted to MDE on May 31, 2013, it again expressed concern that "the turbidity and color limits for [Upper Potomac River Commission] remain very high, and could impact aquatic life and the aesthetic value of the North Branch [Potomac River]." Potomac Riverkeeper urged MDE to incorporate more stringent color and turbidity limits in the new permit and try to achieve "continued reductions for color and turbidity." The public comment period closed on June 1, 2013. ⁸³¹ Changes Made to the Permit as Reflected in MDE's Notice of Final Determination 7 On July 16, 2014, MDE issued the final renewed NPDES permit, which contained the substantive terms described in MDE's notice of final determination, and was to be effective September 1, 2014.

On July 28 and 29, 2014, MDE mailed ¹⁹⁴ notice of final determination to Potomac Riverkeeper and the other interested parties. In the final permit issued in July 2014, MDE revised some of the terms relating to Upper Potomac River Commission's discharge of nutrients into the North Branch Potomac River. Instead of the total nitrogen annual maximum loading rate goal (as proposed in the draft permit), MDE had included enforceable annual maximum loading limits on both total nitrogen and phosphorus in the final permit. MDE also added language to the final permit which would allow Upper Potomac River Commission to calculate total nitrogen and phosphorus loading levels on a "net" basis that would take into account the level of those nutrients already present in the river upstream from Luke Paper.

The terms of the final permit explained the method that would be used to calculate such rates on a net basis as follows: For compliance with the loading limitation, the permittee may calculate and report the net load discharged as follows. After monitoring and reporting, at the same frequency and sample type as specified at Outfall 001, the influent river water concentration at the Newpage river water intake supply, to be designated as Monitoring Point 901, and then subtracting the monthly average concentration measured at Monitoring Point 901 from the monthly average concentration at Outfall 001, the resulting calculated concentration may then be used as "the average daily concentration for the month" in the Monthly loading Rate calculation in footnote (6) above to determine compliance with the loading limit. The average concentrations measured at Monitoring Point 901 and Outfall 001 shall each be reported on the discharge monitoring report and the reported loading shall note when it is being reported as the net load discharged using the monitoring and calculation described in this footnote. At the time MDE issued its final determination, MDE also provided a written Response to Public Comments, responding to many of the comments it received following the issuance of its tentative determination.

MDE noted that, in response to ^{195 832} the public comment that it "must include a total nitrogen annual maximum loading rate as a limit, rather than the goal that is currently established in the draft NPDES permit," MDE had "changed the annual nitrogen loading goal ... to a limitation in the final permit." MDE further explained: "A net limit is applicable because the source intake water used for the industrial water is river water from upstream of [Upper Potomac River Commission] and [Luke Paper], and the [Upper Potomac River Commission] facility is responsible only for the Total Nitrogen loading that is being added to the receiving waters and not the concentrations of nutrients that are already present in the river water intake." On August 4, 2014, and August 11, 2014, MDE published the required notice of final determination in The Cumberland Times-News , pursuant to the notice provision set forth in EN § 1-602(a)(1). 8 In the published notice of final determination, MDE expressly notified interested parties that "[a]ny person adversely affected by this final determination may request a judicial review. The [request for] judicial review must be filed no later than September 4, 2014 in the circuit court of the county where the activity will occur." (Emphasis in original.) Potomac Riverkeeper's Petition for Judicial Review and Subsequent Proceedings On September 4, 2014, Potomac Riverkeeper filed a petition for judicial review in the Circuit Court for Allegany County. Upper Potomac River Commission and Luke Paper Company filed responses to the petition on October 1, 2014, and October 9, 2014, respectively. (As we will discuss herein, Upper Potomac River Commission asserted that the petition for judicial review was not timely filed.) ¹⁹⁶ On May 15, 2015, the circuit court held a hearing on Potomac Riverkeeper's petition, and on June 19, 2015, it affirmed MDE's issuance of the final permit.

The circuit court denied Potomac Riverkeeper's request for remand of the permit to MDE. In rejecting Potomac Riverkeeper's objections to MDE's imposition of a net basis calculation for total nitrogen and phosphorus loading limits, the circuit court explained: Preliminarily, the Court finds it of no moment that the nitrogen and phosphorous limits of which Petitioner complains appears [sic] as new language in the final permit. The permitting process described in the Environment[ ] Article contemplates [MDE] having different language in the final permit than in the tentative determination. See , Md. Code Ann. Envir.

Section 1-604. [ 9 ] This allows MDE to incorporate public input received during the comment period into the final permit. Thus, the question is simply to determine whether the final permit allows excessive discharges of nitrogen ⁸³³ and phosphorus from the [Upper Potomac River Commission] facility. * * * The record reveals that the final permit imposes "net" nitrogen and phosphorus limits, allowing [Upper Potomac River Commission] to subtract nitrogen and phosphorus content in its intake waters from its effluent discharges. In essence[,] MDE is not holding [Upper Potomac River Commission] responsible for the pollutants upstream from the Luke Mill that are already in the water, but holding [Upper Potomac River Commission] responsible for the additional pollution in its discharge. Indeed, in its response to comments ¹⁹⁷ received on the tentative permit determination MDE said "a net limit is applicable because the source intake water used for the industrial water is river water upstream of [Upper Potomac River Commission] and [Luke Paper], and the facility is responsible only for the Total Nitrogen loading that is being added to the receiving waters and not the concentrations of nutrients that are already present in the river water intake." (Italics in original.) The circuit court further concluded that, because "[MDE's] decision to permit the net calculation of the total nitrogen and total phosphorus limitations is reasonable and supported by substantial evidence, it will not be disturbed by the Court." The circuit court also rejected Potomac Riverkeeper's request to order a remand for consideration of photos and measurements recorded subsequent to the close of the public comment period.

The circuit court stated: Petitioner asserts that the permit fails to assure [Upper Potomac River Commission] meets State water quality standards as a result of additional objectionable and unsightly discoloration of the River it observed after the comment period. For that reason alone[,] it argues[,] the Court should remand the permit to MDE. However, the Court is limited to reviewing the administrative record and the objections raised during the public comment period. Because [Potomac Riverkeeper's] argument is based on extra-record material, i.e., observations of additional North Branch discoloration not presented to MDE, the Court will not consider the "appearance" of the River as a basis for remand. [The court's footnote 1 added: "It is noted [that] River color, turbidity impacts, aesthetics, and appearance were issues that existed before the comment period.

The attempt to introduce wholly subjective anecdotal evidence now, not showing violations of numeric water quality standards, is not fair to other parties and[,] if permitted[,] would lead to never-ending remands."] ¹⁹⁸ Potomac Riverkeeper noted this appeal of the circuit court's order, and Upper Potomac River Commission noted a cross-appeal challenging timeliness. STANDARD OF REVIEW "In reviewing an agency's legal conclusions, it is a fundamental principle of administrative law that a reviewing court should not substitute its judgment for the expertise of those persons who constitute the administrative ⁸³⁴ agency." John A. v. Bd. of Educ. for Howard Cnty. , 400 Md. 363 , 381-82, 929 A.2d 136 (2007). See generally Maryland Aviation Administration v. Noland , 386 Md. 556 , 571-72, 873 A.2d 1145 (2005), where the Court of Appeals said: "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,'["] United Parcel [ Service, Inc. ] v. People's Counsel [ for Baltimore County ] , supra , 336 Md. [569] at 576-577, 650 A.2d [226] at 230 [ (1994) ], quoting Bulluck v. Pelham Wood Apts., supra , 283 Md. [505] at 513, 390 A.2d [1119] at 1124 [ (1978) ]. 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.... In Anacostia Riverkeeper , supra , 447 Md. at 118 -20 , 134 A.3d 892 , the Court of Appeals discussed the standard of review that applies to MDE's decision to issue an NPDES permit: EN § 1-601 now permits direct judicial review of agency permitting decisions without a contested case hearing. Although this statute does not set forth a standard of review, the substantial evidence and arbitrary and capricious standards apply where an "organic statute" authorizes judicial review without a contested case hearing and does not set forth a standard of review. ¹⁹⁹ * * * In a review for substantial evidence, we ask "whether a reasoning mind reasonably could have reached the factual conclusion the agency reached." Najafi v. Motor Vehicle Admin. , 418 Md. 164 , 173, 12 A.3d 1255 (2011). We should accord deference " 'to the agency's fact-finding and drawing of inferences' " when the record supports them.

Id. (citation omitted); see Mayor & Aldermen of City of Annapolis v. Annapolis Waterfront Co. , 284 Md. 383 , 399, 396 A.2d 1080 , 1089 (1979) ("The court may not substitute its judgment on the question whether the inference drawn is the right one or whether a different inference would be better supported. The test is reasonableness, not rightness.") (citation and internal quotation marks omitted). Moreover, we shall review the agency's decision " 'in the light most favorable to it.' " Najafi , 418 Md. at 173 , 12 A.3d at 1261 .

Finally, we must accord an agency great deference regarding factual questions involving scientific matters in its area of technical expertise. Bd. of Physician Quality Assurance v. Banks , 354 Md. 59 , 69, 729 A.2d 376 , 381 (1999) ("[T]he expertise of the agency in its own field should be respected."). We have characterized the arbitrary and capricious standard of review as one that is "extremely deferential." Harvey v. Marshall , 389 Md. 243 , 299, 884 A.2d 1171 , 1205 (2005). (Emphasis added.) See also Kor-Ko Ltd. v. Maryland Department of the Environment , 451 Md. 401 , 425, 152 A.3d 841 (2017) (the appellate court "must honor ... the deferential standard of review that guides our assessment of the type of agency action before us").

DISCUSSION I. Timeliness of Potomac Riverkeeper's Petition for Judicial Review Prior to addressing the questions presented by Potomac Riverkeeper, we will consider whether Upper Potomac River ²⁰⁰ Commission, as cross-appellant, is correct in its contention that Potomac Riverkeeper failed to file a timely petition for judicial review after MDE published notice of its final determination. As noted above, Upper Potomac River Commission contends that Potomac Riverkeeper's petition for judicial review was ⁸³⁵ filed one day after the deadline in EN § 1-605(b), which provides: "A party submitting a petition for judicial review shall file the petition within 30 days after publication of a notice of final determination ." (Emphasis added.) Upper Potomac River Commission argues that Maryland Code (2014), General Provisions Article, § 1-302(a) "specifically addresses how to properly compute time, providing that the time begins to run the day after the event described in the statute" unless the statute requires a different method of computation. In the present case, Upper Potomac River Commission contends that Potomac Riverkeeper's petition for judicial review was filed in the circuit court "31 days after initial publication .... Although MDE's [n]otice of [f]inal [d]etermination referred in error to a required filing date of September 4 [for any petition for judicial review,] ...

MDE's courtesy statement may not supplement the Code requirement." Potomac Riverkeeper, on the other hand, contends that its petition was timely filed. It points out that EN § 1-605(b) requires those parties seeking judicial review to file "a petition 'within 30 days after publication of a notice of final determination .' " (Emphasis added by Potomac Riverkeeper.) Potomac Riverkeeper points out that MDE published two notices of final determination: one on August 4, 2014, and one on August 11, 2014. Because the statute does not require that the petition be filed within 30 days after the initial publication of notice of final determination - i.e., the August 4 notice - Potomac Riverkeeper argues it was well within its right to file the petition within 30 days after the August 11 publication of notice of final determination, and its petition for judicial review was filed on the 24th day after August 11. ²⁰¹ The record indicates that MDE's notice of final determination was published in The Cumberland Times-News two times. MDE directed the Times-News to publish the notice required by EN §§ 1-602(a)(1) and 1-604(b)(2) on two specific dates, stating: "Publication Dates: Please publish on August 4 and 11, 2014 ." 10 (Bold type in original.) Pursuant to this directive, the notice of final determination was published on August 4, 2014, and on August 11, 2014.

Each of the published notices states: "The [petition for] judicial review must be filed no later than September 4, 2014 in the circuit court of the county where the activity will occur." (Emphasis in original.) The docket entries show that Potomac Riverkeeper filed its petition for judicial review on September 4, 2014, in compliance with the date specified by MDE in the published notice. Nevertheless, Upper Potomac River Commission argues that Potomac Riverkeeper's petition for judicial review was untimely because the 30th day after the first published notice of final determination in The Cumberland Times-News was September 3, 2014. In Sole v. Darby , 52 Md. App. 218 , 447 A.2d 506 (1982), we concluded that the principles of waiver and estoppel applied where the personal representatives of a decedent caused the publication of an ambiguous public notice of a filing deadline upon which a party who wished to contest the will detrimentally relied. The public ⁸³⁶ notice of appointment in Sole incorrectly "stated that '...

All persons having any objections to such appointment (or to the probate of the Decedent's Will) shall file the same with the Register of Wills of Baltimore County on or before March 3, 1980 (6 months from the date of such appointment) ... [.]' " Id. at 220 , 447 A.2d 506 . In fact, pursuant to the tolling provision in Maryland Code, ²⁰² Estates and Trusts Article § 5-207(a), "the last date of the six month filing period would have expired on the 29th day of February 1980 ...." Id. at 221, 447 A.2d 506 . In Sole , a petition to caveat was filed on March 3, 1980, i.e. , the deadline stated in the published notice. Id.

We reversed the circuit court's ruling that the caveator's claim was not timely filed and therefore was properly dismissed by the orphans' court. We explained: "To require greater diligence from the [caveator] than from the Register of Wills or the personal representatives would, in our opinion, lead to an unduly harsh result." Id. at 224 n.1, 447 A.2d 506 . Our reasoning in Sole applies in the instant case. MDE's published notice of final determination advised interested parties (on two occasions) that any petition for judicial review must be filed "no later than September 4, 2014." Potomac Riverkeeper complied with the express language in the published notice of final determination.

To hold that Potomac Riverkeeper's petition was untimely despite meeting the published deadline would, in our opinion, lead to an unjust result. See id. Under the circumstances, we would conclude Potomac Riverkeeper's petition for judicial review was timely filed even if we agreed that the time limit prescribed in EN § 1-605(b) begins on the day the first notice of publication appears. But we also disagree with Upper Potomac River Commission's argument that a petition for judicial review must be filed within 30 days of MDE's initial publication of the notice of final determination.

EN § 1-605(b) requires that a petition for judicial review be submitted "within 30 days after publication of a notice of final determination." (Emphasis added.) As Potomac Riverkeeper correctly points out, however, that language does not require the filing of a petition within 30 days of the initial publication. And MDE's notice obligations are not complete upon the date of initial publication. EN § 1-602(a)(1) provides: "Notice shall be published at least once a week for 2 consecutive weeks ...." (Emphasis added.) As mentioned above, MDE published its first notice of final determination on ²⁰³ August 4, 2014. MDE's second notice was published on August 11, 2014.

Pursuant to EN § 1-602(a)(1), MDE's notice obligation was not satisfied until its second publication of notice on August 11, 2014. For this additional reason, we conclude that Upper Potomac River Commission's argument that the time limit for filing a petition for judicial review begins to run on the date of the initial publication of notice of final determination is incorrect, and Potomac Riverkeeper's September 4, 2014, petition was timely filed.

II

EN § 1-601(d) In its brief, Potomac Riverkeeper contends that the circuit court erred in refusing to remand the permit to MDE for further consideration prior to its final confirmation of the permit. As noted above, EN § 1-601(d) provides that judicial review of MDE's final determination ordinarily "shall be on the administrative record before the [MDE] and limited to objections raised during the public comment period." But the statute also provides that the court "shall remand the matter to the [MDE]" if the party petitioning for judicial review can demonstrate ⁸³⁷ either that "(i) The objections were not reasonably ascertainable during the comment period; or (ii) Grounds for the objections arose after the comment period." Potomac Riverkeeper asserts that, pursuant to EN § 1-601(d)(1), a remand is required because it was not reasonably ascertainable (during the period for public comment) that MDE would add to the final permit a net basis methodology for calculating total nitrogen and phosphorus discharges. Furthermore, Potomac Riverkeeper contends that the circuit court should have remanded the permit because information regarding the insufficiency of the color and turbidity limits in the final permit was acquired after the close of the comment period, and was, therefore, not reasonably ascertainable during the public comment period, and also provided grounds for an objection that arose after the comment period closed. We have been directed to no Maryland case that thoroughly analyzes the sufficiency of a petitioning party's request for a remand pursuant to EN § 1-601(d), but federal case law on ²⁰⁴ EPA-issued NPDES permits supports the appellees' position that the final version of the permit adopted in the final determination need not be identical to the one previously made available for public comment.

See, e.g., Natural Res. Def. Council v. U.S. Envtl. Prot.

Agency , 279 F.3d 1180 , 1186 (9th Cir. 2002) (quoting Trans-Pac. Freight Conference v. Fed. Mar. Comm'n , 650 F.2d 1235 , 1249 (D.C. Cir. 1980) ) ("[T]he final permit issued by the agency need not be identical to the draft permit. That would be antithetical to the whole concept of notice and comment.

Indeed, it is 'the expectation that the final rules will be somewhat different [-] and improved [-] from the rules originally proposed by the agency.' "). An alternative requirement precluding amendments could lead to a never-ending cycle of comments and revisions. The statutory scheme for public comment on the MDE-issued permits listed in EN § 1-601(a) contemplates published notice of permit applications ( EN § 1-602 ), informational meetings ( EN § 1-603 ), and publication of MDE's tentative determination ( EN § 1-604(a) ). If the tentative determination is to grant the application, EN § 1-604(a)(3) requires MDE to prepare a draft permit and "publish a notice of the tentative determination" that provides 30 days for public comment, and, if requested, hold a public hearing pursuant to EN § 1-604(a)(4).

There is no statutory provision for additional public comment on MDE's final determination and revised final permit; MDE is simply required to "publish a notice of the final determination" pursuant to EN § 1-604(2), after which an eligible party may petition for judicial review of the permit