Stevens v. Prettyman Manor Mobile Home Park Wastewater Treatment Plant

Berger, J. This case is an appeal from a judgment entered on judicial review of an administrative decision. In 2015, the Maryland Department of the Environment ("MDE") issued a permit ("the Permit") to Prettyman Manor, LLC ("Prettyman"), appellee, to discharge treated wastewater into Little Creek, a tributary of the Choptank River. Arlene Q. Stevens and Mildred Quidas (collectively, "Stevens and Quidas"), appellants, filed a petition for judicial review in the Circuit Court for Caroline County. The circuit court affirmed MDE's decision to issue the discharge permit.

On appeal, Stevens and Quidas present two questions for our review, which we have rephrased as follows: 1. Whether MDE failed to publish proper notice of Prettyman's application before issuing the Permit. 2. Whether the Permit allows an unlawful discharge of total suspended solids into an impaired water in violation of state and federal water quality standards. 1 For the reasons explained herein, we shall affirm the judgment of the circuit court. FACTUAL AND PROCEDURAL BACKGROUND I. Regulatory Background A. The Clean Water Act and the National Pollutant Discharge Elimination System Congress enacted the Clean Water Act ("the CWA") in 1972 to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251 (a).

To this end, the CWA prohibits the discharge of any pollutant to waters of the United States without a permit issued through the National Pollutant Discharge Elimination System ("NPDES"). 33 U.S.C. § 1251 (a)(1) ; 33 U.S.C. § 1311 (a) ; 33 U.S.C. § 1342 (a)(1). The CWA requires that every NPDES permit contain (1) effluent limitations that reflect the pollution reduction achievable by using technologically practicable controls and (2) any more stringent pollutant release limitations necessary for the waterway receiving the pollutant to meet "water quality standards." Piney Run Preservation Ass'n v. Cnty. Commissioners of Carroll Cnty. , 268 F.3d 255 , 266 (4th Cir. 2001) (quoting Am. Paper Inst., Inc. v. U.S. E.P.A. , 996 F.2d 346 , 349 (D.C. Cir. 1993) ).

Pursuant to 33 U.S.C. § 1313 (d), states are required to identify all waters within their respective boundaries where technology-based effluent limitations are inadequate to ensure that water quality standards are being met. For each impaired water, a state must establish a total maximum daily load ("TMDL") for every pollutant that is preventing the water from meeting water quality standards. 33 U.S.C. § 1313 (d). Under 40 C.F.R. § 122.4 (i), no permit may be issued "[t]o 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." When an applicant for an NPDES permit proposes to discharge a pollutant into an impaired body of water subject to a TMDL for that pollutant, the applicant must demonstrate that (1) [t]here are sufficient remaining pollutant load allocations to allow for the discharge; and (2) [t]he existing dischargers into that segment are subject to compliance schedules designed to bring the segment into compliance with applicable water quality 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. 40 C.F.R. § 122.4 (i).

MDE is authorized to issue NPDES permits for discharges in Maryland. Maryland Code (1986, 2014 Repl. Vol., 2016 Supp.), § 9-324 of the Environment Article ("Env't"); see also Piney Run Preservation Ass'n , supra , 268 F.3d at 266 (noting that "EPA has authorized approximately forty states, including Maryland, to issue NPDES permits"). When issuing NPDES permits for wastewater treatment plants ("WWTPs"), MDE must ensure that the proposed designs comply with technology-based effluent limitations as well as specific limitations for total suspended solids ("TSS"), biochemical oxygen demand, and pH levels. 40 C.F.R. § 133.100 et seq.

Pursuant to 40 C.F.R. § 122.4 (i), MDE must also ensure that a new discharge to an impaired body of water does not violate applicable TMDLs. B. Notice and Comment Procedures for NPDES Permits MDE is required to publish notice for each application for an NPDES permit. Env't § 1-603; Env't § 9-324. The notice of application must include the following information: a) The name of the applicant; b) The type of permit applied for; c) The type of proposed discharge; d) The volume of the proposed discharge; e) The location of the proposed discharge; f) A statement that persons may review and copy the application or related material and the procedure for doing so; g) A statement that the Department shall hold an informational meeting, if a person makes a written request within 10 working days of the publication of the notice, and the procedure for requesting an informational meeting; and h) Other information the Department determines is necessary for adequate public notification.

COMAR 26.08.04.01-1(D). Upon receiving an application for an NPDES permit, MDE "shall prepare a tentative determination[.]" Env't § 1-604; COMAR 26.08.04.01-2(B)(1)(a). MDE must then publish-or require the applicant to publish-a notice of tentative determination that includes the following information: (i) The information in § B(1)(a) of this regulation; 2 (ii) The procedures for a person to review and copy the tentative determination, draft permit, or related material; (iii) A statement allowing 30 days for public comment to the notice of tentative determination before the issuance of the final determination and the procedures for offering public comment; (iv) A statement that the Department shall hold a public hearing when a written request for a public hearing is made within 20 days of the publication of the notice of tentative determination and the procedure for making a written request for a public hearing; and (v) Other information the Department considers necessary to ensure adequate public notice. COMAR 26.08.04.01-2(B)(2)(b).

After the public comment period closes, MDE may proceed to make a final determination and issue the permit. COMAR 26.08.04.01-3.

II

Factual and Procedural Background Stevens and Quidas own two parcels in Preston, Maryland. One of the parcels is located at 3740 Frazier Neck Road, while the other is located at 21355 Marsh Creek Road. For more than fifty years, Stevens and Quidas have grown vegetables on their property (hereinafter "Quidas Farm") as their primary source of income. To irrigate their crops, Stevens and Quidas draw water from a retaining pond that they constructed by diverting water from Little Creek, a tidal tributary of the Choptank River.

Maryland has identified this segment of the Choptank River as impaired due to excess nitrogen, phosphorus, TSS, and other pollutants. Directly across from Quidas Farm on Little Creek is a mobile home park ("Prettyman Manor") owned and operated by Prettyman. Located at 21269 Dover Bridge Road, Prettyman Manor has been home to dozens of families for decades. Over time, the sewage generated by the residents of Prettyman Manor has overwhelmed the park's aging septic tanks and drainfields.

Eventually, MDE initiated an enforcement action, forcing Prettyman to pump and haul the sewage from the failing on-site disposal systems to a treatment facility in Dorchester County. Thereafter, Prettyman decided to build an on-site WWTP to service Prettyman Manor. A. Prettyman's 2012 Application for a Discharge Permit In April of 2012, Prettyman submitted an application for a discharge permit to discharge treated wastewater from the proposed WWTP into Little Creek ("the 2012 Application"). According to the 2012 Application, the proposed facility would treat up to 40,000 gallons per day using extended aeration technology.

MDE published notice of the 2012 Application in The Times Record on August 8, 2012 and August 15, 2012 ("the 2012 Notice"). MDE did not receive any requests for an informational meeting. MDE quickly determined that the 2012 Application was not consistent with the Caroline County Water and Sewer Plan. On August 24, 2012, MDE gave Prettyman an update on the status of the 2012 Application: In reviewing your discharge permit application for the proposed Prettyman Manor WWTP, we have found that your proposal is not consistent with the Caroline County Water and Sewer Plan.

We cannot issue a wastewater surface water discharge permit until the proposed facility is consistent with the county Plan and have suspended further processing of your application. However, to assist you in making a determination whether to proceed with the project, we will develop planning effluent limitations which are needed to estimate potential costs for the project. In October of 2012, MDE helped Prettyman determine the best point of discharge for the proposed WWTP. In December of 2013, MDE met with Prettyman to discuss, among other things, the possibility of amending the Caroline County Water and Sewer Plan.

B. Prettyman's 2014 Revised Application for a Discharge Permit On July 21, 2014, Prettyman submitted a revised permit application ("the 2014 Revision"). In the 2014 Revision, Prettyman proposed using a membrane bioreactor rather than extended aeration technology in order to meet MDE's enhanced nutrient removal standards. The new design also lowered the treatment capacity from 40,000 gallons per day to 20,000 gallons per day. Additionally, Prettyman changed the outfall location from the southwest corner of Prettyman Manor to the southeast portion of the property.

MDE processed the 2012 Revision under the same NPDES number as the 2014 Application and did not publish a new notice of application. Because Little Creek was impaired by excess amounts of phosphorus and nitrogen, MDE required Prettyman to secure offsets in the form of total nitrogen ("TN") credits and total phosphorus ("TP") credits. To obtain the necessary TN credits, Prettyman had to eliminate eighty on-site disposal systems. To obtain the necessary TP credits, Prettyman entered into a nutrient credit transfer agreement with the Town of Denton.

On February 5, 2015, MDE provided Prettyman with effluent limits for the purpose of planning the wastewater treatment system. That same month, the Caroline County Commissioners amended the Caroline County Water and Sewer Plan to authorize the treatment technology and discharge volume proposed in the 2014 Revision. On July 28, 2015, MDE notified Prettyman and other interested parties of its tentative determination to issue the Permit. C. Tentative Determination, Comment Period, and Final Determination MDE published a notice of tentative determination in The Times Record on August 5, 2015 and August 12, 2015.

The notice included the following information: (1) the location of the WWTP; (2) the water that would receive the discharge; (3) the effluent limits; (4) details of the nutrient credit agreement with the Town of Denton; (5) the deadline for requesting a public hearing; and (6) the deadline for submitting comments, which was September 4, 2015. There was no request for a public hearing. On September 2, 2015, Stevens and Quidas sent a letter to MDE expressing their concern about the potential environmental impact of the project and requesting a meeting. MDE met with Stevens and Quidas on September 15, 2015.

According to a letter from MDE to Prettyman's contractor, "[t]he neighboring farmers had concerns about potential bacterial contamination of their produce and they requested a few more days to take our proposed effluent bacterial limit and run it by their inspector before sending something in writing." On September 27, 2015, Stevens and Quidas sent a letter to MDE with additional questions and comments. MDE responded on October 21, 2015 with a detailed letter addressing each issue raised by Stevens and Quidas. Regarding the effect of the proposed WWTP on the Quidas Farm irrigation pond, MDE wrote the following: In addition, information of stage of the stream and wet trace observed during our site visit, and a Digital Elevation Model (DEM) (USGS, 2009) of Little Creek were analyzed to determine the tidal boundary of the Creek, and the runoff drainage pattern for the landscape above the proposed outfall location. The DEM indicates the tidal boundary is 670 ft upstream of the point of discharge.

Given your property is 850 ft upstream from the proposed outfall location and the stream bed elevation beside your property is 3 ft above the stream bed elevation adjacent to the proposed outfall location, there is no reasonable potential the irrigation pond will be affected by the proposed discharge under normal circumstances (water profile modeled by HEC-RAS using DEM data, attachment pages 5-6). MDE provided Prettyman with the final discharge permit on October 27, 2015 and published notice of its final determination in The Times Record on November 11, 2015 and November 18, 2015. On December 11, 2015, Stevens and Quidas filed a petition for judicial review in the Circuit Court for Caroline County. D. Judicial Review The circuit court held a hearing on December 12, 2016.

At the hearing, Stevens and Quidas argued that the Permit was invalid because MDE failed to publish notice of the 2014 Revision. Stevens and Quidas further argued that the Permit unlawfully allowed Prettyman to discharge TSS into a body of water already impaired by excess TSS levels without requiring any offsets. MDE argued that the 2012 Notice was sufficient and that Stevens and Quidas had waived any objection to the TSS limit specified in the Permit. In a memorandum opinion and order issued on March 22, 2017, the circuit court found that MDE had "acted properly within its authority and did not err by granting the discharge permit in this matter[.]" Stevens and Quidas timely appealed.

DISCUSSION I. Standard of Review In reviewing a decision by MDE to issue a discharge permit, we apply the substantial evidence and arbitrary and capricious standards of review. Maryland Dep't of Env't v. Anacostia Riverkeeper , 447 Md. 88 , 118-19, 134 A.3d 892 (2016), reconsideration denied (May 20, 2016). In Assateague Coastkeeper v. Maryland Dep't of Env't , we explained the substantial evidence standard as follows: 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. 200 Md. App. 665 , 690, 28 A.3d 178 (2011) (quoting Najafi v. Motor Vehicle Admin. , 418 Md. 164 , 173-74, 12 A.3d 1255 (2011) ).

Under the arbitrary and capricious standard of review, we consider whether the agency "relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Anacostia Riverkeeper , supra , 447 Md. at 121 , 134 A.3d 892 (quoting Nat. Res. Def. Council v. U.S. E.P.A. , 808 F.3d 556 , 569 (2d Cir. 2015) ) "When an agency resolves a question of law, however, our review is less deferential." HNS Dev., LLC v. People's Counsel for Baltimore Cty. , 425 Md. 436 , 449, 42 A.3d 12 (2012) ).

"We refuse to uphold an agency decision 'premised solely upon an erroneous conclusion of law.' " Anacostia Riverkeeper , supra , 447 Md. at 122 , 134 A.3d 892 (quoting HNS Dev., LLC , supra , 425 Md. at 449 , 42 A.3d 12 ). Nevertheless, we give deference to an administrative agency's interpretation of the law in certain cases: 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.

Assateague Coastkeeper , supra , 200 Md. App. at 690 -91 , 28 A.3d 178 (quoting Najafi v. Motor Vehicle Admin. , 418 Md. 164 , 173-74, 12 A.3d 1255 (2011) ).

II

MDE Was Not Required to Publish Notice of the 2014 Revision MDE acknowledges that it did not publish notice upon receiving Prettyman's 2014 Revision. MDE argues, however, that the 2014 Revision was not a new application, but merely a revised version of the 2012 Application. Stevens and Quidas, on the other hand, assert that the 2014 Revision and the 2012 Application were "materially different" and that, consequently, each plan required a separate public notice. 3 The question before us, therefore, is whether the 2014 Revision and the 2012 Application constitute a single "application" under Maryland law. We hold that MDE's interpretation of the notice requirement is both reasonable and consistent with the CWA's goal of public participation.

A. MDE's Interpretation of the Notice Requirement Is Reasonable MDE argues that "the regulation does not require the Department to continually provide updates about revisions to a permit application, which do not substantially change the permitted activity, prior to the Department's issuance of a tentative determination." Although the underlying statutes and regulations are ambiguous on this point, we will not substitute our judgment for MDE's reasonable interpretation of the notice requirement. Under Env't § 1-603, MDE "shall cause to be published notice of applications for [discharge] permits." Likewise, Env't § 9-324 provides that MDE "shall give public notice of each application for a discharge permit as required by Title 1, Subtitle 6 of this article, and by making available to the public appropriate documents, permit applications, supporting material, plans, and other relevant information." "After the Department receives the discharge permit application, the Department shall prepare a tentative determination[.]" Env't § 1-604; COMAR 26.08.04.01-2(B)(1)(a). Neither the statutes nor the regulations address whether a revised application should be treated as a new application for the purposes of the notice requirement. We must turn, therefore, to statutory construction.

The "cardinal rule" of statutory construction is "to ascertain and effectuate the intent of the Legislature." Assateague Coastkeeper , supra , 200 Md. App. at 708 -09 , 28 A.3d 178 (quoting Headen v. Motor Vehicle Admin. , 418 Md. 559 , 569, 16 A.3d 196 (2011) ). "If, after considering the plain language in its ordinary and common sense meaning, two or more equally plausible interpretations arise, however, then the general purpose, legislative history, and language of the act as a whole is examined in an effort to clarify the ambiguity." Id. at 709 , 28 A.3d 178 (quoting Wal Mart Stores, Inc. v. Holmes , 416 Md. 346 , 359, 7 A.3d 13 (2010) ). "When applying these rules of statutory construction, we give deference to an administrative agency's interpretation of the statutes it administers." Headen v. Motor Vehicle Admin. , 418 Md. 559 , 570, 16 A.3d 196 (2011). Our decision in Assateague Coastkeeper v. Maryland Dep't of Env't clarifies the proper role of agency deference in matters of statutory construction.

In that case, an environmental group challenged an NPDES permit for animal feeding operations in Maryland. Assateague Coastkeeper , supra , 200 Md. App. at 680 -83 , 28 A.3d 178 . The basis of the challenge was that the permit violated 40 CFR § 122.4 (i), which prohibits the issuance of a permit "[t]o a new source or a new discharger, if the discharge from its construction or