In re Little Patuxent Wastewater Treatment Plant

No. 85-362 (Md. Cir. Ct. September 24, 1986)

The court holds that the decision of the Maryland Department of Health and Mental Hygiene (DHMH) to renew a wastewater discharge permit for Howard County's Little Patuxent Wastewater Treatment Plant that increases its discharge and does not set effluent standards for nitrogen was not supported by substantial evidence. The court therefore modifies the permit to prohibit any increase in the discharge of nitrogen. The court first surveys the evidence of the effects of treated wastewater, particularly increased nitrogen, on the aquatic ecosystem that was presented to DHMH, and concludes that the Department's decision to increase wastewater discharges without setting effluent standards for nitrogen is not supported by substantial evidence. The court holds as illogical and arbitrary DHMH's grounding of its decision on the scientific uncertainty regarding the effects of wastewater on nutrient dynamics in the Patuxent River Basin and methods of nitrogen removal. The court holds that a state of uncertainty does not constitute a reasonable justification for the decision, especially since the Department has a duty to remedy eutrophic water conditions by setting effluent standards. The court also holds that the evidence presented DHMH in fact supports the conclusion that nitrogen removal is feasible and necessary for the protection of the Patuxent's water quality. The court therefore holds that DHMH's decision was arbitrary and unsupported by the evidence, despite facial compliance with § 9-212 of the Maryland Health and Environmental Code. The decision was also rendered arbitrary by the fact that a decision had been made to approve the permit long before opposing views had been solicited. The court further holds that § 10-215 of the Maryland State Government Code required DHMH to consider relevant new evidence from the Environmental Protection Agency and other sources regarding wastewater discharges on the water quality of the Chesapeake Bay and environs with respect to the impact of nitrogen and the feasibility of its removal, and that the failure to do so was arbitrary under the section. The court orders the Department to consider the new evidence on remand and modifies the permit to prohibit any increased discharge of nitrogen.

Counsel for Appellants
William D. Johnston III
Staas & Halsey
1825 K St. NW, Washington DC 20006
(202) 628-5197

Daniel P. Sheridan
Prince Frederick MD 20678
(301) 535-1070

Diane D. Donahue
P.O. Box 635, California MD 20619

Counsel for Respondents
Marc K. Cohen, Ass't Attorney General
300 W. Preston St., Baltimore MD 21201
(301) 539-2940

Richard J. Magid
Whiteford, Taylor & Preston
Seven Saint Paul St., Baltimore MD 21202
(301) 347-8700

[17 ELR 20462]

Bowen, J.:

Opinion and Order

The impetus for this appeal springs from a decision rendered on June 6, 1985 by the Maryland Department of Health and Mental Hygiene to renew a wastewater discharge permit for Howard County's Little Patuxent Wastewater Treatment Plant (the plant). The treatment plant is one of nine such facilities situated along the Patuxent Basin. Including the Patuxent's two tributaries, the Western Branch and the Little Patuxent River, these rivers encompass a drainage area of hundreds of square miles between Washington, D.C. and Baltimore, Maryland.

If affirmed, the permit would authorize the plant to continue its current discharge of 10 million gallons per day (mgd) of treated municipal wastewater, and to increase such discharge to 13.9 mgd by December 31, 1987. The permit, for Class I-EPA protected waters, allows the discharge of "certain organics, suspended solids, measurable bacteria levels, and low concentrations of total residual chlorine, phosphorus and some metals," treated to certain effluent limitations. Maryland Register, Vol. 10, issue 22 (Oct. 28, 1983). Further, as a part of Howard County's Water Quality Management Plan for the Patuxent River Basin, the permit would enable the plant to orchestrate its wastewater management strategy in the future.

Appellants and intervenors are the St. Mary's County Watermen's Association, the Potomac River Association of St. Mary's County, the Hollard Cliff Shores Association, Inc., of Calvert County, the Davidsonville Area Civic Association of Anne Arundel County, and the Maryland Conservation Council. Respondents are the Department of Health and Mental Hygiene for the State of Maryland, and Howard County, Maryland.

With trepidation, we will begin this Opinion with a basic summary of the voluminous scientific and technical data pertinent to the record before us.

In the aquatic ecosystem, overabundant microscopic plantlife flourishes, and is carried by currents downstream. Throughout this movement, dying and decaying plantlife, or algae, fall to the river bottom, and with other organic matter or sediment there, consume oxygen during the process of bacterial decomposition. This system of overabundant algal growth, decay and oxygen depletion, seasonally and cyclically effected, is further confounded where fresher, river water is infused with Chesapeake Bay salt water, as the heavier saline water effectually inhibits the water's ability to destratify — to circulate layers of water — trapping some available oxygen in deeper water. Anoxia is a primary result: the dynamics produced by massive oxygen consumption during algal decompositions, and salinity's trapping effect combine to rob all aquatic life of vital oxygen.

While these chemical, biological, and physical processes once regulated themselves, the Patuxent River Basin, like other facets of our environment, now shows man's negative impact. Curatively, wastewater treatment plants seek to control the kind and amount of nutrients (e.g. phosphorus, nitrogen), in the water which have accumulated from both natural and man-caused sources.

The aquatic ecosystem, at a minimum, needs the proper interplay of nutrients and physical elements. However, by-products from urbanization and agricultural development have caused an imbalance; efflux from urban waste and agricultural fertilizers have mega-stimulated algal growth beyond natural correctives. Given that scientific technology cannot control such factors as sunlight, or the presence of certain other naturally occurring physical factors that comprise the aquatic ecosystem, science has targeted two key algal nutrients, nitrogen and phosphorus, for its management strategy. Control of algal food is control of algal growth. Discordant scientific opinion debates which nutrient to minimize. Interestingly, science now asks the province of law to decide. We acknowledge the utter, imminent gravity of the situation before us, and now turn to examine the legal issues presented.

[17 ELR 20463]

Appellants' requested remedies include permit reversal/modification, enjoining any increase in wastewater discharge, as well as any changes in the plant itself to include nitrogen removal technology, and remand for a new hearing on any evidence this court may find material, as submitted by Appellants. The measure by which these remedies stand or fall is set forth in the State Government Article, Md. Code, (1984) section 10-215 et seq.:

(e) Additional evidence before agency — (1) the court may order the agency to take additional evidence on terms that the court considers proper if:

(i) before the hearing date in court, a party applies for leave to offer additional evidence; and

(ii) the court is satisfied that:

(1) the evidence is material; and

(2) there were good reasons for the failure to offer the evidence in the proceeding before the agency.

(2) On the basis of the additional evidence, the agency may modify the findings and decision.

(3) The agency shall file with the reviewing court, as part of the record:

(i) the additional evidence; and

(ii) any modifications of the findings or decision.

(g) Decision. — In a proceeding under this section, the court may

(1) remand the case for further proceedings;

(2) affirm the decision of the agency; or

(3) reverse or modify the decision if any substantial right of the petitioner may have been prejudiced because a finding, conclusion, or decision of the agency:

(i) is unconstitutional;

(ii) exceeds the statutory authority or jurisdiction of the agency;

(iii) results from an unlawful procure;

(iv) is affected by any other error of law;

(v) is unsupported by competent, material and substantial evidence in light of the entire record as submitted; or

(vi) is arbitrary or capricious.

These legislative parameters of judicial review are further illustrated in Bullock v. Pelham Wood Apartments, 283 Md. 505, 512-13, 390 A.2d 1119, 1123-24 (1978), where the Maryland Court of Appeals said that the "substantial evidence" test considers "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Judicial review "is limited to whether a reasoning mind reasonably could have reached the factual conclusion the agency reached." (Id.) The Bullock court added that when applying the substantial evidence test, the reviewing court may not "substitute its judgment for the expertise of those persons who constitute the administrative agency," and should "review the agency's decision in the light most favorable to the agency." (Id.) See also Maryland State Department of Personnel v. Sealing, 298 Md. 524, 471 A.2d 693 (1984); Courtney v. Board of Trustees of the Maryland State Retirement Systems, 285 Md. 356, 402 A.2d 885 (1979). Holy Cross Hospital v. Health Services Cost Review Commission, 283 Md. 677, 393 A.2d 181 (1978).

Our path is further guided by Breedon v. Maryland State Department of Education, 45 Md. App. 73, 411 A.2d 1073 (1980), which reasoned that "material evidence need not be determinative of the outcome of a given issue, but rather, it must be of such nature as would tend to influence the making of the decision." (Id. at 84). In sum, our role is to consider whether the Department's final order was reasonable, given the material evidence before it; our analysis must also include careful review of the complete record before us. See Juliano v. Lion's Manor Nursing Home, 62 Md. App. 145, 488 A.2d 538 (1985).

Upon such review, we are persuaded that the record and the new evidence submitted compels Appellants requested remedies of remand and modification of the June 6, 1985 final order, within parameters set by this court. Our explanation evolves as follows.

The final order at page 6, states that:

the Appellant further argues that it is illegal to increase the discharge of nutrients into waters that are already recognized as being eutrophic, water quality standards as a result of, at least in part, of such discharges. The State does not have water quality standards that specify an ambient level for nitrogen or phosphorus in the Patuxent River Basin. The limits do specify standards for dissolved oxygen, but the linkage between nitrogen discharge and dissolved oxygen has not been established. Therefore the State's proposed permit is not illegal.

(emphasis added). At the very beginning of the adjudicatory hearing below, the hearing examiner heard testimony, read to her from the Md. Code, Health and Environmental Article 9-101 (g), defining pollutants as ". . . any waste or wastewater that is discharged from a public treatment works . . ." (T. at 8), and testimony from section 9-302 (3), that "no waste is discharged into any waters in this State without first receiving necessary treatment or other corrective action . . ." (T. at 9-10). The examiner took testimony from section 9-314, in pertinent part, which "deals with water quality standards, including concentrations of dissolved oxygen and effluent standards for maximum loading or concentration of chemical properties of waste waters" (T. at 10-11, emphasis added), and testimony that it is the statutory duty of the Department of Health and Mental Hygiene to "adopt, modify, repeal, and promulgate water quality standards for the waters of the State and effluent standards for water discharge into the waters of the State." (T. at 12, emphasis added). Also rendered into the record was the definition that "eutrophic means an excessive enrichment of waters of the State by the discharge or addition of nutrients which results in degradation of water quality or undesirable ecological changes . . ." (T. at 13, cite omitted).

Apart from statutory requirements and definitions, the record evinces eloquent testimony by watermen's association counsel that "it's somewhat horrifying to see the way that the shellfish industry and the watermen's industry has essentially . . . died out. The oyster plants, et cetera, are cobwebs of the past." (T. at 4). He added:

It's a very sad state of affairs, the way the water industry has died there in Southern Maryland and what has gone about. I've seen it die. They have all the pictures of oyster boats harvesting oysters out of the Patuxent River where they were so thick that you could almost walk across the water on the boats. No longer the case. There are alot of historical documents. No one cares about them anymore because they're meaningless.

(T. at 25-26). He further said that "we have been treating phosphate for many years, and the river continues to die and die and die." (T. at 33).

As mentioned in the final order, at page 4, "the State has acknowledged that the state of science is that we don't fully understand the nutrient dynamics . . . for that reason, the State has adopted the position it has with respect to the permit conditions at this time." (emphasis added, and see T. at 234). This latter inference operates as a non sequitur. The fact that the State was unsure of its position cannot provide the reason, or basis, for renewing the permit. This justification becomes even more specious where a state agency — duty bound to protect and safeguard water quality — is considering whether or not to approve the discharge of over ten million gallons per day of effluents that are even suspected of having a casual relationship to the problem at hand. The State has recognized the waters as being eutrophic/water quality limited, (T. at 226), has a duty to correct by, among other means, setting effluent standards, and has to treat all waste before discharge. Since nitrogen in certain forms is a waste now being discharged, it reasonably follows that nitrogen should be checked and monitored. Thus it is not logical, as noted at page 6 of the final order, that the Agency does not have water quality standards that specify the ambient level for nitrogen and phosphorus in the Patuxent River Basin, when they have a duty to do so, nor is it reasonable to permit the unchecked flow of nitrogen when the Agency is admittedly unsure of nutrient dynamics. In brief, a state of uncertainty does not constitute reasonable justification for choosing one nutrient removal strategy over another.

A number of scientific studies, along with expert testimony, contribute to the record below. Major studies included the Patuxent Charette, a December, 1981 conference and report sponsored [17 ELR 20464] by the EPA and the Department of Health and Mental Hygiene, the HydroQual Report, jointly commissioned by the Department and the EPA, and issued in August, 1981, and the Microcosm Study, commissioned primarily through the Department and issued in August, 1981. A conclusion reached in the hearing examiner's Synopsis, as reiterated in the final order (at page 4), was that Appellants' testimony and evidence offered "no conclusive information" to support their case for nitrogen removal. We disagree, based in part on the State's own testimony.

During direct examination by Mr. Cohen, counsel for the Department, it was the testimony of Mr. Sellars, chief administrator of the Water Management Administration, that the Charette, comprised of "about 70 percent of the cream of the crop that understands the estuarine nutrient controversy with particular emphasis on the Patuxent River" (T. at 229), was in favor of nitrogen reduction. He stated that:

the bottom line of the Charette was that we agreed to set a goal of nutrient reduction, both phosphorus and nitrogen, from both point sources and non-point sources, to treat the river as a whole.

(T. at 232, emphasis added). The Department and its sub-groups were under extreme pressure by 1981 to form a nutrient control strategy or lose federal funds. Without the Charette, Sellars testified, "there was so much difference of opinion," that "we may have been subjected to not winning the case if we had to go through a litigation or an adjudication of the particular decision." (T. at 226). Unanimity, achieved through the Charette, apparently eased such litigation fears, by agreeing that both nitrogen and phosphorus should be removed. Someone had to effectuate the Charette agreement, which was apparently why "we had a very welcome volunteer, the Washington Sanitary Commission, offer to achieve those reductions at the WSSC treatment plants." (T. at 233). Thus the federal funds could be freed, as indicated in the parties following exchange, that:

two or three very important other reasons why we needed to resolve this controversy were the fact we had federal funds set aside which were in jeopardy and needed to make decisions on the permits according to court orders.

(T. at 226). Decisive action and consensus was imminently necessary because Sellars "sought from the EPA to hold (the funds) from reallotment, and, once they set down a very strict schedule . . . one critical thing was the issuance of permits to these facilities to proceed with design and construction." (T. at 227). He elsewhere spoke of pressure because "we were way behind in terms of getting the job done." (Id.)

We note, albeit in passing, testimony by OEP's Mr. Luckman, who apparently authored the permit in question. His background reasearch "did not do any analysis of the effect of the nutrients in the river or the estuary." (final order at 7, and see T. at 64-65). We assume that since he drew up the permit in question that he did so primarily on data that contained no inclusion of the effects of nutrient loadings into the very waters likely to be effected by such effluents. If this sequence is true, then we may question the reasonableness of the permit itself, as concluded in the final order.

EPA approval was all but mandatory for the permit. EPA input, both technical and financial, was a coexistent part of the facility itself, from initial design and construction stages. The final order, at page 5, indicates that on December 16, 1981, the Water Management Administration received Howard County's permit renewal request. Mr. Luckman testified (T. at 53-54), that his office makes an initial check on the permit, "then send(s) copies of it to the EPA Region III in Philadelphia, to the State Planning Division and to the State Fisheries part of Natural Resources."

OEP would then "wait for their comments. We also put a copy — or write up a notice that we received the application, put that in the local newspaper, and in the Maryland Register." (Id.) Next, they "wait for a response from the EPA and Planning and Fisheries to see if they have any comment on it, one way or another." (Id.) He added that "in this case we received comments from our planning people (on) January 8, 1982 that they had no problem with the application. It was consistent with the 208 Basin Plan and the Howard County water and sewer plant." (Id. and see T at 219). He then said that OEP "received a letter from EPA on January 15, 1982, requesting joint review, which was standard procedure for any discharge of this volume." (Id.) Luckman later testified that the joint concurrence was received on September 15, 1982. (Id.) At this point, EPA had reviewed and concurred with the application and permit.

The record elsewhere shows that EPA's Mr. App began his review of the permit in August of 1982, and that he testified "that the primary technical basis of that decision (to approve) was the HydroQual modeling study . . ." (T. at 274). Thus by September of 1982, the EPA and all concerned State parties had reviewed the application and the permit, and had approved. Over a year after their decision to approve, notice(s) appeared in October, 1983 edition(s) of the Maryland Register. We note that an edition dated October 28, 1983, (Vol. 10, issue 22), contained notice of a "tentative decision to reissue" the discharge permit in question, and advertised December 20, 1983 as the public hearing date.

Compliance with Maryland Code Health and Environmental Article section 9-212 et seq. does not re-countenance the fact that an interdepartmental decision was made on this permit long before these departments had heard opposing testimony thereto. We believe that the above scenario helped render the final order arbitrary.

The final order agreed that the hearing examiner "has placed too much emphasis in her conclusions on the subject of costs." (final order at 5). While Appellants were denied the opportunity to present testimony on the costs of nitrogen removal, the examiner began, ended, and generously seasoned her Conclusions and Findings of Fact with State testimony on comparative costs of nitrogen or phosphorus removal, as well as how much money the State had already invested in the facility. The examiner also indicated that the EPA would not fund the facility unless phosphorus removal was instituted (Findings of Fact at 2, and see T. at 237).

We believe that the question of whether or not the permit was to be reissued for phosphorus removal was moot by the public hearing in December 1983, or the subsequent adjudicatory hearing. The Department was under pressure to choose phosphorus removal in order to be aligned with the federal funding. Also extent was a confluence of other factors. The Director of the Water Management Administration for the Office of Environmental Programs stated "I think the political pressures could be characterized better than anything else as the pressure to move on and get permits issued . . ." (T. at 240). He then added "that materials that come up after a decision is made by the administrative agency is not going to be relevant, such as in the case of any kind of decision by anybody." (T. at 246, emphasis added).

We do not agree. Appellant has submitted new evidence which this court finds highly relevant; so much so that we will remand for its consideration. Such evidence, in part from the Scientific and Technical Advisory Committee to the EPA's Chesapeake Bay Program now shows that the EPA may be finding favor in nitrogen removal strategy. STAC's January, 1986 report, "Nutrient Control in the Chesapeake Bay" states that:

the best way to achieve water quality improvements in the saline portion of the Chesapeake Bay in the immediate future is to reduce the amounts of nitrogen entering the bay system during the growing season . . . .

Moreover, the report specifically finds that "the principal inputs of nitrogen are from sewage treatment plants and groundwater inflow . . . the immediate control strategy must be centered on reducing nitrogen inputs from wastewater treatment plants . . ." (Id., emphasis added).

The new evidence also indicates that the STAC Chairman and Director now believe that "nitrogen removal technology has come to the point where it is not way out and prohibitively expensive." (BNA's Environment Reporter, Vol. 17, number 11, July 11, 1986). Furthermore, in June 24, 1986 Senate subcommittee testimony, EPA Administrator Lee M. Thomas said that:

that agency is considering altering its policies on federally funded municipal treatment plants to make nitrogen removal processes eligible for construction funding . . . nitrogen is suspected as a major contributor to the bay's pollution problems . . . .

(Id.) At the same hearing, Governor Hughes also testified that nitrogen removal was necessary. The evidence further suggests that [17 ELR 20465] the EPA will have completed a definitive, computerized model by May of 1987. (BNA's Environment Reporter, Vol. 17, number 9, June 27, 1986.)

Appellants' evidence stands under Bullock, Breedon, and the statutory guidelines discussed supra. We remand not only because of glaring indications that the final order is grounded in error and uncertainty, but because we find that Appellants' rights have been prejudiced by an order considered herein to be arbitrary.

Therefore, on the 24th day of September, 1986, by the Circuit Court for Calvert County, Maryland, it is,

ORDERED, that this case be remanded to the Department of Health and Mental Hygiene for further proceedings to include consideration of new evidence as submitted by Appellants, and it is also,

ORDERED, that the discharge permit is modified to prohibit any increased discharge of nitrogen, both actions subject to the continuing jurisdiction of this court.