Potomac Riverkeeper v. Dept. of the Env. , 238 Md. App. 174 ( 2018 )

Potomac Riverkeeper, Inc. D/B/A Potomac Riverkeeper
Network v. Maryland Department of the Environment, et al.
Case No. 1028 September Term, 2015
ENVIRONMENTAL LAW – ADMINISTRATIVE LAW – CLEAN WATER ACT
– PERMITTING PROCESS FOR WATER TREATMENT FACILITIES. An entity
that discharges effluent into Maryland’s waters must obtain a permit from the Maryland
Department of the Environment (“MDE”). Sections 1-601 et seq. of Maryland Code
(1982, 2013 Repl. Vol.), Environment Article (“EN”), provide that, before MDE may
issue a permit, MDE must provide notice and opportunity for public comment. Upon
issuance of the permit, persons who participated in the public comment process may seek
judicial review in the circuit court. EN § 1-601(d)(1) provides: “Judicial review shall be
on the administrative record before [MDE] and limited to objections raised during the
public comment period, unless the petitioner demonstrates that: (i) The objections were
not reasonably ascertainable during the comment period; or (ii) Grounds for the
objections arose after the comment period.” If the petitioning party demonstrates to the
circuit court either of the exceptions listed in EN § 1-601(d)(1)(i) or (ii), the court is
required to remand the matter to MDE for consideration of the newly raised objections.
But the court is not required to order a remand if the objections are not materially
different from those that were presented to MDE prior to the close of the public comment
period.
Circuit Court for Allegany County
Case No.: C-14-41065
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1028
September Term, 2015
_______________________________________
POTOMAC RIVERKEEPER, INC. D/B/A
POTOMAC RIVERKEEPER NETWORK
v.
MARYLAND DEPARTMENT OF THE
ENVIRONMENT, et al.
_______________________________________
Woodward, C.J.,
Meredith,
Friedman,
JJ.
_______________________________________
Opinion by Meredith, J.
_______________________________________
Filed: July 26, 2018
2018-07-26
14:01-04:00
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 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
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
1
Due to changes in ownership of the paper mill during the course of the
proceedings before MDE and in the circuit court, the record refers to the owner of the
mill by several names, including Westvaco, Newpage, and New Page. In this opinion we
shall refer to that entity as “Luke Paper.”
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 and state agency investigations that
occurred more than a year after the close of the comment period?
2
Potomac Riverkeeper’s questions all focus upon EN § 1-601(d), which states:
(d)(1) Judicial review shall be on the administrative record before [MDE]
and limited to objections raised during the public comment period, unless
the petitioner demonstrates that:
(i) The objections were not reasonably ascertainable during the
comment period; or
(ii) Grounds for the objections arose after the comment period.
(2) The court shall remand the matter to [MDE] for consideration of
objections under paragraph (1) of this subsection.
2
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.
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
3
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 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
4
amount of pollutants into waterways. See, e.g., 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 (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 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.”
5
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. In Anacostia Riverkeeper, id. at 101-04,
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 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 that a body of water can
6
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.
(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
7
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:
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.
8
The Permit Renewal Process3
On April 22, 2005, Upper Potomac River Commission applied to MDE for
renewal of its NPDES effluent discharge 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
3
EN § 1-604(a) describes the requirement for MDE to issue a “tentative
determination,” and the process that precedes MDE’s final determination as follows:
(a) (1) After [MDE] receives the permit application, [MDE] shall
prepare a tentative determination, which shall include the following
information:
(i) A proposal to issue or to not issue a permit;
(ii) Any proposed permit limitations and conditions;
(iii) A brief explanation of [MDE’s] tentative
determination; and
(iv) Any proposed schedule of compliance.
(2) If the tentative determination is to issue a permit, the
tentative determination shall include a draft permit, which shall be
available to the public for inspection and copying.
9
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 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 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
________________________
(3) [MDE] shall publish a notice of the tentative
determination. This publication shall allow 30 calendar days for
public comment before the issuance of the final determination.
10
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
Commission NPDES] permit to contain enforceable effluent limits on nitrogen and
phosphorus.” Id. at 3.
11
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.
12
We shall provide a summary of MDE’s explanation of the changes to several specific
parameters that were included in the draft of the renewed permit.
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.”
4
The United States Geological Survey provides the following brief explanation of
this measure of water quality: “Turbidity is the measure of relative clarity of a liquid. It is
an optical characteristic of water and is an expression of the amount of light that is
scattered by material in the water when a light is shined through the water sample. The
higher the intensity of scattered light, the higher the turbidity. Material that causes water
to be turbid include clay, silt, finely divided inorganic and organic matter, algae, soluble
colored organic compounds, and plankton and other microscopic organisms.” THE USGS
WATER SCIENCE SCHOOL, https://perma.cc/6EPQ-HCZ9.
13
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 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 Rate5
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 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
5
Special Conditions A.1(5) stated: “Total Nitrogen is the sum of ammonia
nitrogen, organic nitrogen, and nitrate-nitrogen. The permittee shall report the total and
each individual concentration. Testing for all forms of nitrogen must be performed on the
same sample. The permit may be reopened to propose additional nitrogen limitations
upon completion of a Total Maximum Daily Load (TMDL) for the North Branch
Potomac River.”
6
MDE explained in Special Conditions A.1(6): “This [draft] permit establishes a
Total Nitrogen Annual Maximum Loading Rate goal of 79,218 lbs/year. Failure to attain
this annual goal will not be a permit violation but the permit may be reopened after three
years if the data shows that additional allocation needs to be addressed and/or a limit is
appropriate.” According to Special Conditions A.1(7), the “Total Phosphorus Annual
Maximum Loading Rate” is 30,773 lbs/year. This loading rate for phosphorus is
expressed as an enforceable “limit” rather than a goal in MDE’s tentative determination.
14
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:
[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
15
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 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.
Changes Made to the Permit as Reflected in MDE’s Notice of Final Determination7
On July 16, 2014, MDE issued the final renewed NPDES permit, which contained
7
EN § 1-604(b) describes the procedure MDE is required to follow after the close
of the public comment period:
(b) (1) [MDE] shall prepare a final determination if:
(i) Written comments adverse to the tentative determination
were received by [MDE] within 30 days after the publication
of the notice of tentative determination pursuant to this
section;
(ii) Comments adverse to the tentative determination were
received in writing at, or within 5 days after, the public
hearing conducted pursuant to this section;
16
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 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:
________________________
(iii) Comments adverse to the tentative determination were
received orally at the public hearing conducted pursuant to
this section and [MDE] prepared a transcript of the comments
made at the hearing; or
(iv) The final determination is substantively different from
the tentative determination and all persons aggrieved by the
final determination have not waived, in writing, their right to
request a contested case hearing.
(2) If [MDE] is required to prepare a final determination
under this section, [MDE] shall publish notice of the final
determination.
17
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 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.”
________________________
(3) If [MDE] is not required to prepare a final determination
under this section, the tentative determination is a final decision by
[MDE] when the permit is issued or denied.
18
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.)
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
8
The notice provision in EN § 1-602(a)(1) provides:
(a) Wherever this subtitle requires [MDE] to publish notice:
(1) Notice shall be published at least once a week for 2
consecutive weeks in a daily or weekly newspaper of general
circulation in the geographical area in which the proposed
facility is located; . . . .
19
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 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 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.)
9
EN § 1-604(b)(1), quoted above, requires MDE to prepare a final determination
if “comments adverse to the tentative determination were received by [MDE],” as they
were in this case, and also requires MDE to prepare a final determination if MDE’s final
permit is “substantively different from the tentative determination.” But the statute
makes no provision for additional public comment after MDE issues its final
determination and publishes notice of its final determination pursuant to EN § 1-
604(b)(2).
20
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.”]
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 agency.” John A. v. Bd. of
21
Educ. for Howard Cnty., 400 Md. 363, 381-82 (2007). See generally Maryland Aviation
Administration v. Noland, 386 Md. 556, 571-72 (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 v. People’s Counsel, supra, 336 Md. at 576–577, 650 A.2d at
230, quoting Bulluck v. Pelham Wood Apts., supra, 283 Md. at 513, 390
A.2d at 1124. 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, 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.
***
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 (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
22
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 (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 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 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
23
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.
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.)
10
EN § 1-604(b)(2) provides: “If the Department is required to prepare a final
determination under this section, the Department shall publish a notice of the final
24
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 (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 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. In fact, pursuant to the tolling provision in Maryland
Code, Estates and Trusts Article § 5-207(a), “the last date of the six month filing period
________________________
determination.” EN § 1-602(a)(1) states:
(a) Wherever this subtitle requires the Department to publish notice:
(1) Notice shall be published at least once a week for 2 consecutive weeks
in a daily or weekly newspaper of general circulation in the geographical
area in which the proposed facility is located[.]
25
would have expired on the 29th day of February 1980 . . . .” Id. at 221. 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.
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
26
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 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 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
27
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 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-
28
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 pursuant to EN § 1-
605 within 30 days after published notice of the final determination. At that point, the
judicial review is limited to the administrative record and “limited to objections raised
during the public comment period” unless the petitioning party can demonstrate that there
are new objections that “were not reasonably ascertainable during the comment period,”
or “arose after the comment period” ended. EN § 1-601(d)(1). If the petitioning party
demonstrates that there are genuinely new objections that are materially different from
those that have already been considered by MDE, the court is required to remand the
matter to MDE for consideration of the newly raised objections. EN § 1-601(d)(2). But a
remand would serve no purpose, and would only introduce unnecessary delay, if the
proffered new objections are not materially different from objections that were already
considered by MDE.
As we shall discuss in addressing Potomac Riverkeeper’s second and third
questions, the information that was gathered after the close of the public comment period,
and the concerns Potomac Riverkeeper raised in the circuit court regarding the final
permit, were not materially different from information and objections that were presented
to MDE before the close of the comment period, and, for that reason, we conclude that
29
this is not a case in which the circuit court was required by EN § 1-601(d) to remand the
matter to MDE for consideration of objections that were not materially different from the
objections that had previously been presented.
III. The Net Limit for Total Nitrogen and Phosphorus
Potomac Riverkeeper asserts that its “objection to the nitrogen and phosphorus
limits happens to satisfy both [EN § 1-601(d)(1)(i) and (ii)].” In that regard, Potomac
Riverkeeper contends that, “after the public comment period, MDE incorporated a new
methodology for calculating nitrogen and phosphorus discharges, allowing [Upper
Potomac River Commission] to exceed its Bay TMDL [waste load] allocations for those
pollutants.”
As noted above, in the final permit, MDE included a provision permitting the
calculation of maximum loading rates on a “net” basis by monitoring the amount of
nitrogen and phosphorus in the upstream river water before that water is utilized by Luke
Paper and then subtracting that intake level from the quantities of nitrogen and
phosphorus present in the water being discharged into the river after treatment by Upper
Potomac River Commission. MDE’s stated rationale for adding this net limit provision
to the final permit was that Upper Potomac River Commission should not be held
responsible for “the concentration of nutrients that are already present in the river water
intake.”
In its brief, Potomac Riverkeeper argues that the potential for MDE’s inclusion of
this methodology was not reasonably ascertainable before the close of the public
comment period: “None of the documents available to the public during the comment
30
period mention the possibility of MDE including this new methodology . . . .” Potomac
Riverkeeper asserts that “the first mention anywhere in the record of applying [Upper
Potomac River Commission’s] nitrogen and phosphorus limits on a net basis was on
April 28, 2014, nearly eleven months after the end of the comment period, when MDE
provided a revised permit, response to public comments, and [notice of] final
determination in draft form to [Upper Potomac River Commission] (but not the public)
for review.”
Potomac Riverkeeper further asserts that the “new methodology for calculating
nitrogen and phosphorus discharges actually allows [Upper Potomac River Commission]
to discharge more of those pollutants into the North Branch,” and that it “had no
opportunity to object to the legality or practicality of this new methodology before MDE
issued the final permit.” Allowing such new and substantive changes in the final permit
would, according to Potomac Riverkeeper, “render[] [the exceptions set forth in EN] § 1-
601(d) completely meaningless.” Accordingly, Potomac Riverkeeper requests that we
remand the matter to the circuit court with instructions for it to remand the matter to
MDE for further consideration of this objection to the final permit.
Upper Potomac River Commission denies that the grounds for objecting to use of
a net calculation were not reasonably ascertainable during the comment period. It
contends that a net basis calculation “simply recognizes that there are other sources of
[total nitrogen and total phosphorus] for which [Upper Potomac River Commission] is
not responsible. Clarification of the applicability of a net limitation was necessary to
support MDE’s translation of the prior nutrient ‘goals’ into specific enforceable
31
limitations.” And the replacement of the draft permit’s goals with specific enforceable
limits was something expressly requested by Potomac Riverkeeper during the comment
period.
Citing 40 C.F.R. § 122.45(g), which provides that, “[u]pon request of the
discharger, technology-based effluent limitations or standards shall be adjusted to
reflect credit for pollutants in the discharger’s intake water [emphasis added],”
Upper Potomac River Commission asserts that the use of a net limitation should not have
surprised Potomac Riverkeeper, and does not provide a basis for a remand. Upper
Potomac River Commission argues:
The nitrogen and phosphorus already in the water taken in at Luke Paper is
thus part of the Load Allocation included within the [upstream water’s]
TMDL when it reaches the [Upper Potomac River Commission] plant. To
not [subtract] that Load Allocation out of the [Upper Potomac River
Commission] [Waste Load] Allocation would be to count it twice within
the [Bay] TMDL calculations.
MDE offers two arguments in support of its decision to incorporate the net
calculation methodology in the final permit without further opportunity for public notice
and comment. First, MDE cites the Bay TMDL and notes that it “establishes [waste
load] allocations for discharges of total nitrogen and total phosphorus from [Upper
Potomac River Commission]. In developing the [Bay TMDL’s waste load] allocations,
the EPA took into account other sources of pollution, including other point source
dischargers and non-point sources. Additionally, the models on which the Bay
TMDL is based account for natural background pollution.” (Emphasis added.)
32
As urged by Potomac Riverkeeper, MDE changed the permit’s annual nitrogen
and phosphorus maximum loading levels to limits, replacing the unenforceable goals in
the draft permit. This change in the terms of the final permit aligned the permit’s limits
with those found in the Bay TMDL. In its Response to Public Comments that
accompanied its final determination on July 14, 2014, MDE explained its reasoning
behind the change:
A net limit was applicable because the source intake water used for the
industrial water is river water from upstream of [Upper Potomac River
Commission] . . . 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.
(Emphasis added.)11
MDE also argues that its inclusion of a net calculation methodology in the final
permit should not have surprised Potomac Riverkeeper because the same methodology
was used calculate another loading limit, namely turbidity, in the draft permit. MDE
emphasizes that the draft permit available for public comment “included a water quality-
based turbidity limit and allowed [Upper Potomac River Commission] to report turbidity
as the net increase from a monitoring point upstream of the effluent to a monitoring point
downstream.” According to MDE, its use of a net increase methodology in calculating
11
See generally Kor-Ko, supra, 451 Md. at 422 n.18, in which the Court observed:
“The agency is not obliged to respond to all public comments, but rather may pick and
choose where to do so.”
33
another limit demonstrates that “it was reasonably ascertainable that [MDE] would do the
same when adding a limit for nitrogen as requested by [Potomac] Riverkeeper.”12
We agree with appellees, and hold that Potomac Riverkeeper failed to demonstrate
that its objections fall within EN § 1-601(d)(1)’s exceptions to the general rule that
judicial review “shall be on the administrative record.” First, Potomac Riverkeeper’s
objection to MDE’s implementation of a net calculation for nitrogen and phosphorus was
reasonably ascertainable during the public notice and comment period because the
information upon which its objection is based is not materially different from the
12
In its tentative determination, MDE proposed the following net calculation
methodology for reporting turbidity limits:
Limitations apply to turbidity in the surface water, and may be measured
and reported either as (1) total turbidity measured at stream Monitoring
Location 01A; or as 2) the net increase in turbidity concentration that
occurs between stream Monitoring Location 201 (on the Maryland side of
the River approximately 25 feet upstream of Outfall 001) and stream
Monitoring Location 01A. The maximum or average limitations at location
01A do not apply during periods where the Outfall 001 turbidity
measurements are below the corresponding maximum or average limits at
instream location 01A after considering the travel time between Outfall 001
and Monitoring Location 01A.
This same language appears in MDE’s final permit under the subheading “EFFLUENT
LIMITATIONS AND MONITORING REQUIREMENTS.”
MDE further explained its decision to allow Upper Potomac River Commission to
report its turbidity data using a net calculation in its Summary Report and Fact Sheet that
accompanied the release of its tentative determination:
The proposed in-stream limitations at downstream monitoring point 01A
remain unchanged from the previous permit. . . . Water quality standards
for turbidity are expressed in terms of an increase to the background, so
background monitoring is optional so that the permittee may choose
34
information that was presented to MDE before the close of the comment period.
Although it is true that MDE’s use of a net formula to calculate “the average daily
concentration per month” of the total phosphorus and total nitrogen maximum loading
rates measured in lbs/year was added to the final permit after the public comment period,
the draft permit employed a similar net calculation methodology for calculating turbidity.
Because MDE had already employed this methodology in calculating other effluent
discharges addressed in the permit, all interested parties, including Potomac Riverkeeper,
were on notice that the methodology could be implemented with respect to nitrogen and
phosphorus loading limits. And Potomac Riverkeeper itself urged MDE to adopt limits
in place of goals for nitrogen and phosphorus.
The net calculation methodology’s potential implementation was also reasonably
ascertainable during the public notice and comment period because it was derived from
the models used to create the Bay TMDL, which Potomac Riverkeeper was clearly aware
of during the comment period. In its comments, Potomac Riverkeeper “object[ed] to
MDE’s decision to express the Total Nitrogen Annual Maximum Loading Rate . . . as a
goal, rather than an enforceable limit,” and it further asserted that “[e]xpressing the
Annual Maximum Loading Rate as a goal is inconsistent with the Chesapeake Bay
Total Maximum Daily Load (“Bay TMDL”) total nitrogen allocation for the [Upper
Potomac River Commission] facility . . . .” (Emphasis added.)
________________________
reporting of the data as net increase only as needed for demonstrating
compliance with the limitations.
35
Much like the above net-basis calculation utilized in the final permit, the Bay
TMDL’s water quality models “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 further explains:
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.
(Emphasis added.)
As previously stated, the relevant federal regulation provides that a TMDL is
“[t]he sum of the individual [waste load allocations] for point sources and [load
allocations] for nonpoint sources and natural background.” 40 C.F.R. § 130.2(i)
(emphasis added). 40 C.F.R. § 130.2(i) therefore provides notice that a waste load
allocation limit may take into account the pre-existing or “background level” of pollution
in the body of water under consideration. That regulation states:
If a receiving water has only one point source discharger, the TMDL is the
sum of that point source [waste load allocation] plus the [load allocations]
for any nonpoint sources of pollution and natural background sources,
tributaries, or adjacent segments. TMDLs can be expressed in terms of
either mass per time, toxicity, or other appropriate measure.
40 C.F.R. § 130.2(i) (emphasis added).
The Bay TMDL itself recognizes that “background pollution” may be subtracted
when calculating a permittee’s authorized load maximum for a given nutrient. MDE’s
use of that type of calculation in its final determination was a foreseeable response to the
36
comments made by Potomac Riverkeeper during the public comment period. In
authorizing a calculation methodology that allowed Upper Potomac River Commission to
subtract the contribution of other point and non-point sources, MDE was responding
directly to Potomac Riverkeeper’s request that the permit should set limits rather than
unenforceable “goals.” It was therefore reasonably ascertainable that, if MDE revised the
permit — by changing the total nitrogen and phosphorus maximum loading limits from a
“goal” to an enforceable limit — the permittee would be authorized to calculate its
discharge in such a way that does not hold it accountable for the pre-existing, baseline
level of nutrients in the North Branch that the permittee did not discharge. See also 40
C.F.R. § 122.45(g) (providing for the adjustment of standards “to reflect credit for
pollutants in the discharger’s intake water”). We are satisfied that all interested parties,
including Potomac Riverkeeper, had an adequate opportunity to anticipate and comment
on these foreseeable terms of the final permit.
Moreover, although Potomac Riverkeeper asserted, and continues to assert, that
MDE’s implementation of a net calculation for total nitrogen and phosphorus “actually
allows [Upper Potomac River Commission] to discharge more of those pollutants into the
North Branch” than it could under the tentative draft permit, it directs us to no specific
data in the record that validates this assertion. And when Potomac Riverkeeper presented
a similar argument to the circuit court, it similarly failed to direct the circuit court to
evidence to support its claim. The administrative record transmitted to the circuit court
for judicial review comprised four binders containing 2414 pages, and in its
“Memorandum in Support of Petition for Judicial Review,” Potomac Riverkeeper argued:
37
[Potomac Riverkeeper] objects to the new language in Special
Condition A.1(7) of the final permit that allows [Upper Potomac River
Commission] to discharge nitrogen and phosphorus in excess of its
WLAs in the Bay TMDL for those pollutants. For the Court to remand
the permit to MDE, [Potomac Riverkeeper] need only show that its
objections were ‘not reasonably ascertainable during the comment period’
or that the ‘[g]rounds for the objections arose after the comment period.’
Md. Code Ann., E[N] § 1-601(d). Here, the grounds for [Potomac
Riverkeeper’s] objection cleary arose after the comment period because the
language in Special Condition A.1(7) did not appear in the tentative
determination. (Compare R. at 6-7 to R. at 439-40.) Therefore, Petitioner
did not have any opportunity to object to the new language. Furthermore,
the new Special Condition was not reasonably foreseeable based on the
information provided by MDE with the tentative determination. The
tentative determination and supporting documents did not in any way
suggest that [Upper Potomac River Commission] would be allowed to
subtract the nitrogen and phosphorus in LPC’s intake water for the purpose
of complying with [Upper Potomac River Commission’s] permit limits. For
these reasons alone, the Court should remand the permit to MDE to
consider Petitioner’s objection. See Md. Code Ann., E[N] § 1-601(d).
Petitioner objects to Special Condition A.1(7) because it is contrary
to the “assumptions and requirements” in the Bay TMDL. See 40 C.F.R. §
122.44(d)(vii); see also Md. Code Ann., E[N] § 9-324. The Bay TMDL
specifically provides nitrogen and phosphorus WLAs for [Upper Potomac
River Commission] of 79,218 pounds per year and 30,773 pounds per year,
respectively. (Ex. 1 at 42.) The final permit purports to adopt those
limits, (R. at 5), but actually allows [Upper Potomac River
Commission] to discharge additional nitrogen and phosphorus. It does
so through the new language in Special Condition A.1(7), which
changes the way that [Upper Potomac River Commission] calculates
nitrogen and phosphorus discharges for the purpose of permit
compliance. The Special Condition states that [Upper Potomac River
Commission] can calculate ‘the average daily concentration for the
month’ by subtracting ‘the monthly average concentration measured
at Monitoring Point 901 [LPC’s water intake supply] from the monthly
average concentration at Outfall 001 [Upper Potomac River
Commission’s outfall].” (R. at 6-7.) Therefore, [Upper Potomac River
Commission’s] actual discharges of nitrogen and phosphorus can
exceed the WLAs in the Bay TMDL.
Allowing [Upper Potomac River Commission] to exceed its Bay
TMDL allocations for nitrogen and phosphorus would be detrimental to the
38
health of the Potomac River and the Chesapeake Bay. Pollutant levels that
may be coming into any given facility were not considered in setting the
individual WLAs in the Bay TMDL. (See Ex. 1 at 28-32 (summarizing
the assumptions incorporated into the Bay TMDL allocations).) The
pollutant allocations for individual facilities and other pollution
sources throughout the Chesapeake Bay watershed are all inter-related
and together account for the maximum amount of pollution that the
Chesapeake Bay and its tributaries can tolerate. (Ex. 1 at 2.) Therefore,
allowing [Upper Potomac River Commission] to discharge additional
nitrogen and phosphorus undermines the effectiveness of hundreds of other
allocations and jeopardizes the overall effectiveness of the Bay TMDL in
restoring the Potomac River and the Chesapeake Bay.
(Bold emphasis added.)
Although Potomac Riverkeeper repeatedly asserts that a net calculation allows
Upper Potomac River Commission to “exceed” the Bay TMDL allocations for nitrogen
and phosphorus, there is no estimate or description in the briefing, or that we can find in
the voluminous record, regarding how much of the 79,218 pounds of nitrogen, originally
expressed as a goal, was preexisting nitrogen in Luke Paper’s intake water. Without any
data comparing the anticipated discharges under the final permit to those allowed under
the proposed draft permit, there is no way for the court to assess whether the new
language in the final permit introduced a material change. Accordingly, Potomac
Riverkeeper failed to “demonstrate[]” that it was entitled to a remand, pursuant to EN §
1-601(d)(2), to address an objection to a material change in the terms of the permit made
by MDE after arose the comment period.
Similarly, with respect to Potomac Riverkeeper’s assertion that the grounds for
this objection “arose after the comment period,” and therefore require a remand pursuant
to EN § 1-601(d)(1)(ii), we disagree. Citing this Court’s decision in Maryland Dept. of
39
the Environment v. Anacostia Riverkeeper, 222 Md. App. 153, 178 (2015), rev’d, 447
Md. 88 (2016), for the proposition that “the public can’t comment on a program that
doesn’t yet exist,” Potomac Riverkeeper appears to suggest that it has the right to a new
comment period if any change is made to the draft permit when MDE makes its final
determination. But a similar argument was rejected by the Court of Appeals in Anacostia
Riverkeeper, supra, 447 Md. at 168. In that case, certain details regarding “best
management practices” were subject to modification by MDE after the approval of a
discharge permit. Nevertheless, the Court of Appeals concluded that “the public was able
to comment on [best management practices] — the core component of the TMDL
restoration plans” during the permitting process, id., and, as a consequence, the Court of
Appeals “conclude[d] that the public ha[d] not been deprived of notice and comment.” Id.
at 169.
Analogous reasoning applies in the present case. Here, despite some changes to
the language in MDE’s final permit, all interested parties, including Potomac
Riverkeeper, were provided the opportunity to comment on the “core components” of the
permit -- including total nitrogen and phosphorus maximum loading limits -- during the
public comment period, and could have provided comments criticizing the use of net
calculations for measuring compliance with the nutrient limits.
The mere fact that the net calculation language applicable to nitrogen and
phosphorus was added after the public comment period is not sufficient to satisfy EN § 1-
601(d)(1)(ii) and require remand of a permit to MDE. Such an interpretation would
expand the exception to the point that it swallows the rule and would introduce a
40
potentially perpetual review and revise cycle in the permitting process. When Potomac
Riverkeeper submitted its comments to MDE, it was on notice that the Bay TMDL’s
annual maximum nutrient loading limits were calculated on a net basis, and had notice
that MDE’s tentative determination provided for calculating the load limit for turbidity on
a net basis. Therefore, it was foreseeable that, if MDE adopted Potomac Riverkeeper’s
request to replace the goals with limits, the final permit could employ the same
methodology to calculate other loading limits. If Potomac Riverkeeper had additional
comments to provide MDE regarding the methodology for calculating compliance with
the limits, it could have provided guidance to MDE during the comment period. The
inclusion of this language in the final permit did not require the court to remand the case
to MDE.
IV. Information Gathered After the Close of the Comment Period
Potomac Riverkeeper’s second argument in support of the request for a remand
asserts that, “in the spring and summer of 2014, a year after the public comment period
closed, events and state agency investigations [of the North Branch Potomac River’s
color and turbidity] showed that the new permit is inconsistent with Maryland law and
fails to protect the North Branch.” Accordingly, Potomac Riverkeeper argues that EN §
1-601(d) required the circuit court (and similarly requires this Court) to remand the case
to MDE for further consideration of these objections that “arose after the close of the
comment period.”
Potomac Riverkeeper contends that information gathered after the close of the
public comment period shows that the NPDES permit issued to Upper Potomac River
41
Commission violates Maryland and federal water quality standards and effluent
limitations, citing the “narrative water quality criteria” in COMAR 26.08.02.03(B)(2),
which provide:
The waters of this State may not be polluted by . . . [a]ny material,
including floating debris, oil, grease, scum, sludge, and other floating
materials attributable to sewage, industrial waste, or other waste in amounts
sufficient to: (a) Be unsightly; (b) Produce taste or odor; (c) Change the
existing color to produce objectionable color for aesthetic purposes; (d)
Create a nuisance; or (e) Interfere directly or indirectly with designated uses
....
Because these unquantified, narrative water quality standards are difficult to
enforce, COMAR provides enforceable, numeric water quality criteria to accompany
these narrative standards. COMAR 26.08.02.03-3A(5)-(6) provide that turbidity “may
not exceed 150 units at any time or 50 units as a monthly average,” and color “may not
exceed 75 units as a monthly average.” Prior to issuing a discharge permit, MDE is
required to find that the permitted discharge meets “[a]ll applicable State and federal
water quality standards and effluent limitations.” EN § 9-324(a).
As Potomac Riverkeeper points out, in 2014, after the public comment period
closed, State agencies collected data on the color and turbidity of the river near Upper
Potomac River Commission’s outflow. Potomac Riverkeeper cites a Department of
Natural Resources report which indicates that, on July 15, 2014, the river was in an
“[u]nfishable condition at 20.5 NTUs (Daily Avg Limit is 50 NTUs.)” In its brief,
Potomac Riverkeeper includes a photograph date-stamped July 12, 2014, from a
Department of Natural Resources presentation which, Potomac Riverkeeper contends,
“shows that [the permit’s] new, more stringent limits for color and turbidity fail to
42
prevent [Upper Potomac River Commission] from causing unsightly and objectionable
discoloration that interferes with the North Branch’s designated uses, such as swimming
and fishing.” Potomac Riverkeeper states that, in this photograph, the effluent turbidity
was at 280 NTU, and the effluent color was at 370 PCU.
Potomac Riverkeeper also offers the December 2014 declaration of Kenneth
Pavol, who asserted that, in 2014, i.e., after the public comment period closed, he
“observed discoloration of the North Branch from [Upper Potomac River Commission]
much more frequently than in previous years.” Mr. Pavol declared that Upper Potomac
River Commission’s “discharge was also significantly darker and more opaque than I
have seen in the past 5 to 10 years . . . . On some days I cannot see my oar past six inches
into the water and the decrease in visibility is noticeable for approximately 20 miles
downstream.”
On appeal, Potomac Riverkeeper contends that these 2014 photos and
observations require this Court — pursuant to EN § 1-601(d)(2) — to remand the permit
to MDE for further consideration of the argument that the current permit’s color and
turbidity standards fail to adequately protect the North Branch Potomac River.
Preliminarily, Potomac Riverkeeper argues that the “circuit court erroneously
concluded that [the court] could not consider the evidence that arose in 2014 because it
was not reflected in the administrative record.” Potomac Riverkeeper argues that it was
obviously not possible to present this particular evidence during the administrative
process because it became available only after the opportunity for public comment had
closed, and some of the information did not become available until the final
43
determination had been made. According to Potomac Riverkeeper, the above-mentioned
evidence can be properly considered for the “limited purpose of demonstrating that the
grounds for an objection arose after the comment period” as contemplated by EN § 1-
601(d)(1)(ii). Potomac Riverkeeper argues that, because “no remotely similar
information was available to the public during the comment period,” EN § 1-
601(d)(1)(ii)’s exception is satisfied, and therefore, because EN § 1-601(d)(2) states that
“the court shall remand the matter” if the petitioner demonstrates either of the
circumstances described in EN § 1-601(d)(1), a remand is required for MDE to consider
objections based on this evidence.
We agree with Potomac Riverkeeper’s contention that the circuit court applied an
erroneous standard for excluding consideration of the information gathered after the close
of the comment period, and we disapprove of the circuit court’s stated rationale that,
“[b]ecause [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.” Although, for the
reasons explained herein, we agree with the circuit court’s conclusion that a remand is
not required, we agree with Potomac Riverkeeper’s assertion that extra-record material
may be considered for the limited purpose of determining whether the objection raised
during judicial review falls within EN § 1-601(d)(1)’s exceptions. Such a determination
will necessarily, at times, require the consideration of extra-record material to analyze
whether grounds for an objection “arose after the comment period,” or “were not
reasonably ascertainable during the comment period.” Id.
44
But, in this case, the appellees assert that the objections that Potomac Riverkeeper
raised in the circuit court in support of the request for a remand were not materially
different from objections that had already been considered. With respect to color, MDE
contends that Potomac Riverkeeper did not demonstrate that the grounds for its
objections regarding the insufficient color and turbidity limits arose after the public
comment period closed. First, MDE points to the letter it received from Kenneth Pavol in
2005. In that letter, Mr. Pavol similarly “argued that [Upper Potomac River
Commission’s] discharge caused discoloration which negatively impacted fishing quality
and aesthetics.” MDE also points to Potomac Riverkeeper’s own comments to MDE in
2006, at which time Potomac Riverkeeper “argued that the in-stream turbidity limits of
the previous permit, set at 150 NTU maximum and 50 NTU average in accordance with
the water quality standard, were not adequate to protect aquatic life.”
MDE also argues that, in written comments submitted on May 31, 2013, Potomac
Riverkeeper “addressed color and turbidity in relation to aesthetics and aquatic life.” In
that letter, Potomac Riverkeeper observed that “the proposed limits were the ‘maximum
allowed by Maryland’s Water Quality Criteria for Use I waters.’” Furthermore, MDE
notes that the color and turbidity levels measured by the Department of Natural
Resources in 2014 were not materially different from the levels measured in 2004 and
2012.
And, although MDE is not required to address all public comments when it issues
its final determination, see Kor-Ko, supra, 451 Md. at 422 n.18, in MDE’s Response to
Public Comments that accompanied the final determination, MDE provided a response to
45
a comment it had received requesting “continued reductions for color and turbidity,”
stating:
The final permit issued to [Upper Potomac River Commission] includes
authority for [MDE] to reopen the permit in the future to address any new
technology controls for color at industrial user [Luke Paper] resulting from
the Pretreatment Permit issued to [Luke Paper] that requires additional
efforts to control color. The final permit for [Upper Potomac River
Commission] also gives the Department authority to reopen the permit to
address any new or additional water quality issues resulting from the
[Upper Potomac River Commission] discharge.
In Luke Paper’s brief, the company contends that the objection raised by Potomac
Riverkeeper was reasonably ascertainable during the comment period, and that “the
conditions that purportedly created grounds for [its] objection existed before and during
the comment period.” Luke Paper argues: “The record documents fluctuations in
turbidity and color, and prior to the end of the public comment period, levels have
occasionally been in the precise range that [Potomac Riverkeeper] now asserts as new.”
Luke Paper further asserts that Potomac Riverkeeper is merely “repackaging” the same
types of assertions it made during the comment process to frame it as a new argument.
Because of these earlier assertions, and because the “public had ample access to view
both the river and related data before and during the public comment period,” Luke Paper
argues that Potomac Riverkeeper’s objection does not fall within EN § 1-601(d)(1)’s
exceptional circumstances that require a remand.
We agree with appellees’ argument that Potomac Riverkeeper’s objections
regarding the efficacy of the color and turbidity permit levels do not fall under either of
EN § 1-601(d)(1)’s exceptions to the general rule that “[j]udicial review shall be on the
46
administrative record before [MDE] and limited to objections raised during the public
comment period . . . .” First, the essence of Potomac Riverkeeper’s “new” objections
regarding color and turbidity limits was reasonably ascertainable during the public notice
and comment period. Potomac Riverkeeper submitted comments to MDE regarding the
proposed permit renewal on April 17, 2006, in which it requested stricter limits for both
color and turbidity. On December 20, 2006, Potomac Riverkeeper sent a letter to MDE
which indicated that one of its “major concerns involved the discharge of excessive color
from the [Upper Potomac River Commission] facility.”
In a letter dated April 3, 2013, Potomac Riverkeeper requested that MDE provide
a “detailed explanation of the conversion factor and limit for color in the Tentative
Determination,” and further inquired as to “what impact [] the proposed limit for color
[will] have on water quality . . . .”
In Potomac Riverkeeper’s written comments to MDE dated May 31, 2013, it urged
MDE to include stricter color and turbidity limits in the permit:
Potomac Riverkeeper appreciates the reductions in color and
turbidity discharges achieved by [Upper Potomac River Commission] since
the initiation of the preceding permit term. Despite the improvements,
however, 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 Riverkeeper notes that the
in-stream limits for turbidity and color are the maximum allowed by
Maryland’s Water Quality Criteria for Use I waters. Potomac Riverkeeper
urges MDE and [Upper Potomac River Commission] to investigate
opportunities to achieve further reductions to protect and improve the
water quality of the North Branch.
(Emphasis added.)
47
The above-mentioned comments, all of which were provided prior to or during the
public comment period, indicate that Potomac Riverkeeper always had concerns about
the permit’s color and turbidity limits. And, as the record demonstrates, Potomac
Riverkeeper did, in fact, comment on these limits multiple times. Therefore, it was
reasonably ascertainable during the public comment period that the limits prescribed by
MDE in its tentative determination (which remained the same in the final permit) would
have generated concerns that were not materially different from those raised in the circuit
court.
We conclude that the grounds for Potomac Riverkeeper’s proffered objection
about color and turbidity did not arise after the comment period because information
regarding fluctuating color and turbidity levels was readily available both before and
during the comment period, and even if the previously available data and photos were not
identical to the information gathered after the close of the public comment period, the
information was not materially different.
For example, in comments submitted to MDE in 2006, Potomac Riverkeeper
addressed color limits, stating:
The [Upper Potomac River Commission] facility is not in
compliance with its effluent limitation on color. In its renewal application,
[Upper Potomac River Commission] reports a maximum daily value of 550
PCU, a maximum monthly value of 427 PCU, and a long term average of
384 PCU. The permit application includes data sets reporting effluent
measurements taken between 2003 and 2005. There 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.
(Emphasis added.)
48
Therefore, Potomac Riverkeeper’s own comment to MDE demonstrates that the
problems stemming from MDE’s limits on color did not arise for the first time after the
close of the public comment period. The fact that Potomac Riverkeeper repeatedly
commented on the efficacy of the color and turbidity limits during the public notice and
comment period lends credence to Luke Paper’s assertion in its brief that “[Potomac
Riverkeeper] cannot credibly maintain that the very issue it repeatedly commented on
during the comment period was not ascertainable during the comment period.”
Nor does the proffered photograph from the Department of Natural Resources,
reproduced in Potomac Riverkeeper’s brief, shed any materially different light on the
issue. According to this picture of the effluent in the North Branch Potomac River on July
12, 2014, the effluent turbidity level was 280 NTU and the effluent color was 370 PtCo.
But, as disturbing as the photo appears, it does not provide new information of a problem
that had never been observable prior to the close of the public comment period.
Information from MDE regarding color and turbidity levels over the years shows that, on
certain days, the turbidity and color could be measured at even higher rates than those
measured in 2014. For example, on January 23, 2012, turbidity was measured at 450
NTU and color was measured at 880 units. In October 2009, the average color
measurement for the month was 327 units, with a high measurement of 530 units
recorded on October 14, 2009. These are not the only instances when the turbidity and/or
color were measured at higher rates than those measured by the Department of Natural
Resources in July 2014. Although the Department of Natural Resources’s more recent
findings are understandably of concern to Potomac Riverkeeper (and undoubtedly
49
others), they do not demonstrate symptoms that could not have been anticipated before
the close of the public comment period or establish new grounds for objection that arose
after the close of the public comment period.
Similarly, Potomac Riverkeeper’s reference to the personal observations of
Kenneth Pavol also fails to demonstrate that the conditions Mr. Pavol observed after the
close of the public comment period were materially different from the conditions he had
brought to the attention of MDE prior to the close of the comment period. As mentioned
above, Mr. Pavol provided an affidavit dated December 4, 2014, in which he declared
that, beginning in May 2014, he had “observed discoloration of the North Branch from
[discharges by Upper Potomac River Commission] much more frequently than in
previous years. . . . On some days [he could not] see [his] oar past six inches into the
water . . . .” But, as MDE points out, Mr. Pavol had written similar letters to MDE in the
past. In 2005, Mr. Pavol wrote that his “particular concern is the apparent wide variation
in daily levels of suspended solids in the effluent from the [Upper Potomac River
Commission] plant. As a result, the North Branch becomes highly discolored for many
miles downstream . . . .” These 2005 observations, according to Mr. Pavol, led him “to
question whether the effluent is actually within the permit requirements.” Mr. Pavol’s
2005 observations negate Potomac Riverkeeper’s assertion that his 2014 comments
provided a new basis for objecting to the effluent limits in Upper Potomac River
Commission’s permit that arose only after the public comment period had closed.
Because Potomac Riverkeeper failed to demonstrate that its objections regarding
the efficacy of the color and turbidity limits in the permit fall under either of EN § 1-
50
601(d)(1)’s narrow exceptions to the requirement that judicial review is limited to the
administrative record and the objections raised during the public comment period, we
affirm the circuit court’s denial of the request for a remand, and its judgment affirming
the final determination of MDE.
JUDGMENT OF THE CIRCUIT COURT
FOR ALLEGANY COUNTY AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
51