241 A.3d 40
Md. Ct. Spec. App.2020Background:
- GenOn operates three coal-fired steam electric plants in Maryland that discharge FGD (flue gas desulfurization) wastewater and bottom-ash transport water and require NPDES permits from the Maryland Department of the Environment (MDE).
- EPA issued a stricter Effluent Limitation Guidelines (ELGs) in the 2015 Final Rule that tightened limits on toxic metals and required no discharge for bottom ash transport water.
- EPA administratively stayed parts of the 2015 Rule in April 2017, then issued a 2017 Postponement Rule that preserved the 2015 ELGs but postponed certain compliance dates — for FGD wastewater and bottom ash transport water the phrase “as soon as possible” was moved to November 1, 2020.
- MDE issued draft renewal permits (July 2017) noting regulatory uncertainty and offering a 12‑month window to request permit modification; public comment followed but GenOn did not submit a feasibility study showing inability to meet the ELGs.
- MDE issued final permits (July 27, 2018) requiring compliance with the ELGs no later than November 1, 2020; GenOn sought judicial review arguing MDE should have awaited or anticipated further EPA rulemaking and that the permits lacked substantial evidentiary support.
- Three circuit courts affirmed MDE; the Court of Special Appeals consolidated appeals and affirmed, holding MDE acted within its discretion and the record contained substantial evidence.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MDE's issuance of permits that set compliance deadlines based on the existing EPA regulations (2015 Rule as modified by 2017 Postponement) was arbitrary and capricious | GenOn: MDE should have awaited/anticipated EPA's promised future rulemaking and not bind industry to ELG limits that EPA intended to revisit | MDE: MDE correctly applied the unambiguous operative regulations in force (including the 2017 Postponement), and preamble language cannot override regulatory text | Held: Not arbitrary or capricious — MDE followed unambiguous regulatory language and properly applied the 2015 Rule as preserved by the 2017 Postponement Rule |
| Whether MDE's final determinations lacked substantial evidence because GenOn did not submit feasibility data during the comment period | GenOn: Record was incomplete without GenOn’s feasibility study; remand required to consider feasibility evidence | MDE: GenOn had the opportunity to submit feasibility evidence during public comment and failed to do so; record was sufficient and review is limited to matters raised in comment | Held: Substantial evidence supports MDE — GenOn failed to present feasibility evidence during the comment period and cannot obtain a remand by withholding it |
Key Cases Cited
- Md. Dept. of Env’t v. Anacostia Riverkeeper, 447 Md. 88 (2016) (standard of review: substantial evidence for agency factfinding)
- Kor-Ko Ltd. v. Md. Dept. of Env’t, 451 Md. 401 (2017) (review principles; deference to agency regulation interpretation)
- Md. Dept. of Env’t v. Cnty. Comm’rs of Carroll Cnty., 465 Md. 169 (2019) (NPDES delegation and anti-backsliding context)
- Potomac Riverkeeper, Inc. v. Md. Dept. of Env’t, 238 Md. App. 174 (2018) (judicial review limited to administrative record and objections raised in comment)
- Clean Water Action v. EPA, 936 F.3d 308 (5th Cir. 2019) (characterizing EPA’s 2017 Postponement as a narrow preservation of the 2015 Rule)
- Kennecott v. EPA, 780 F.2d 445 (4th Cir. 1985) (explaining BAT standard and its stringency)