189 A.3d 819
Md. Ct. Spec. App.2018Background
- Upper Potomac River Commission (UPRC), a Maryland agency operating a wastewater treatment plant near Luke, MD, sought renewal of its NPDES permit to discharge treated effluent to the North Branch Potomac River; Luke Paper is the primary industrial source whose wastewater the plant treats.
- MDE issued a tentative determination and draft permit with nutrient “goals” for total nitrogen (TN) (not enforceable) and a phosphorus limit; public comment period and hearing occurred in 2013.
- Potomac Riverkeeper submitted multiple comments (2006, 2013) urging enforceable TN and TP limits and stricter color/turbidity controls; others (e.g., an angling guide) also raised aesthetics and color concerns earlier.
- In July 2014 MDE’s final permit converted TN/TP goals into enforceable annual loading limits but allowed compliance to be calculated on a “net” basis (subtracting upstream intake concentrations), and retained numeric color/turbidity limits; MDE explained the net approach by reference to Bay TMDL modeling and precedent for net turbidity reporting.
- Potomac Riverkeeper filed for judicial review within the published deadline, challenging (a) remand under EN §1-601(d) because the net methodology was not reasonably ascertainable during the comment period or arose after it, and (b) that post-comment evidence (2014 monitoring/photos) showed color/turbidity exceedances requiring remand; the circuit court denied remand and affirmed MDE.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of petition | Potomac Riverkeeper filed timely under MDE second publication; 30-day clock runs from publication date provided | UPRC: clock runs from first publication so petition late | Court: petition timely; statute requires two consecutive publications and copy complied with published deadline |
| Whether EN §1-601(d) requires remand when final permit adds net TN/TP methodology not in draft | Net methodology was not reasonably ascertainable during comment period and arose after it; remand required | MDE/UPRC: net approach was foreseeable — Bay TMDL/modeling and draft permit used net reporting for turbidity; comments asked for limits so adjustment was foreseeable | Court: no remand; net method was reasonably ascertainable and not materially different from earlier information |
| Whether post-comment 2014 evidence (photos, monitoring, affidavits) requires remand because grounds arose after comment period | New monitoring/photos demonstrate violations/new grounds that arose after comment period, so remand required under EN §1-601(d)(1)(ii) | MDE/Luke Paper: color/turbidity concerns were raised during comment period and historical data show similar levels; new info not materially different | Court: extra-record evidence may be considered for the §1-601(d) inquiry, but here the 2014 evidence was not materially different from earlier record; no remand |
| Scope of judicial review (administrative record limitation) | §1-601(d) exceptions should be interpreted to require remand when substantive changes occur in final permit | MDE: statute allows final permit to differ from draft; only materially new, unforeseeable objections require remand to avoid endless reopenings | Court: review is generally limited to administrative record; exceptions narrow — remand only when objections were not reasonably ascertainable or arose after comment period and are materially different |
Key Cases Cited
- Maryland Dept. of the Environment v. Anacostia Riverkeeper, 447 Md. 88 (Md. 2016) (describing NPDES/TMDL framework and standard of review for MDE permit decisions)
- Kor-Ko Ltd. v. Maryland Department of the Environment, 451 Md. 401 (Md. 2017) (appellate deference to agency and limits on agency obligation to respond to every comment)
- Sole v. Darby, 52 Md. App. 218 (Md. Ct. Spec. App. 1982) (relief where parties reasonably relied on erroneous published deadline)
- Natural Res. Def. Council v. U.S. Envtl. Prot. Agency, 279 F.3d 1180 (9th Cir. 2002) (final agency action need not be identical to draft; differences may result from notice-and-comment process)
- Piney Run Preservation Ass'n v. County Com'rs of Carroll County, 268 F.3d 255 (4th Cir. 2001) (NPDES permitting authorizes discharge limits under statutory framework)