Howard County v. Davidsonville Area Civic and Potomac River Associations, Inc.

• Citation: 72 Md.App. 19,527 A.2d 772
• Decision Date: 01 September 1986
• Docket Number: No. 1355,1355
• Parties: HOWARD COUNTY, Maryland, et al. v. DAVIDSONVILLE AREA CIVIC AND POTOMAC RIVER ASSOCIATIONS, INC., et al. ,
• Court: Court of Special Appeals of Maryland

Page 19

72 Md.App. 19

527 A.2d 772

HOWARD COUNTY, Maryland, et al. v. DAVIDSONVILLE AREA CIVIC AND POTOMAC RIVER ASSOCIATIONS, INC., et al.

No. 1355, Sept. Term, 1986.

Court of Special Appeals of Maryland.

July 8, 1987.

Marc K. Cohen, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. and Richard M. Hall, Asst. Atty. Gen., on brief), Baltimore, for Dept. of Health and Mental Hygiene.

Wilbur D. Preston, Jr., (Richard J. Magid, Whiteford, Taylor & Preston, Baltimore, Timothy E. Welsh, Acting Howard County Sol. and F. Todd Taylor, Ellicott City, on brief), for appellants.

William D. Johnston, III, Washington, D.C. (R. Graydon Ripley, Davidsonville, Diane D. Donahue, California, Daniel P. Sheridan and Rymer and Sheridan, Prince Frederick, on brief), for appellees.

Argued before WILNER, ROSALYN B. BELL and ROBERT M. BELL, JJ.

ROSALYN B. BELL, Judge.

This case arises out of a decision by the Department of Health and Mental Hygiene (Department), appellant, granting a discharge permit to Howard County (County), appellant, for a sewage treatment plant. The Little Patuxent Wastewater Treatment Plant (County Plant) discharges treated wastewaters, called effluent, into the Little Patuxent River. The Potomac River Association, Inc. and the Davidsonville Area Civic Association, Inc., appellees, are two voluntary associations located in St. Mary's County and Anne Arundel County, respectively.

The County applied to the Department to renew its discharge permit. Appellees, believing the permit would allow excess pollution into the waters, sought an adjudicatory hearing before the Department. At the conclusion of the adjudicatory hearing, the Department's hearing examiner issued a proposed decision finding that the permit met all applicable regulations and adequately protected water quality and concluding that the permit should be issued as proposed. After considering written exceptions and oral argument, the Department issued a Final Order approving the permit. Appellees appealed this decision to the Circuit Court for Calvert County. The circuit court found the Department's decision was arbitrary and ordered the Department to modify substantially the terms of its permit. It also ordered the case remanded to the Department to consider new evidence. The Department and the County appeal presenting a number of questions:

--Was there substantial evidence to support the Department's findings that the permit adequately protected water quality?

--Did the trial judge err in concluding the Department's Final Order was arbitrary and thus substituting its judgment for that of the agency?

--Did the trial judge err in concluding the Department acted arbitrarily in prejudging the issue?

--Did the trial judge err when he remanded the decision to the Department to consider additional evidence?

--Did the trial judge err in ordering a modification of the permit?

Before we reach the merits of these issues, we need to set out the statutory and factual background of this case.

The Regulatory Scheme

The Department was charged, inter alia, with managing, improving, controlling and conserving the waters of Maryland. A person may not discharge any pollutants into the waters of this State or operate any facility that discharges pollutants except as permitted by a State discharge permit issued by the Department. Md. Health-Envtl.Code Ann. §§ 9-322, 9-323 (1982). The Department is authorized to adopt rules and regulations that set effluent standards ¹ for discharge permits and water quality limitations ² to protect public health, recreation, industry and wildlife. Md. Health-Envtl.Code Ann. § 9-314 (1982). In adopting regulations, the Department is to consider, among other things, the character of the area involved, the nature of the receiving body of water, and the technical feasibility and the economic reasonableness of measuring or reducing the particular type of water pollution at issue. Md. Health-Envtl.Code Ann. § 9-313 (1982).

The Department may issue a discharge permit upon its determination that the terms of the permit meet all State and federal regulations, the water quality standards and the appropriate effluent limits. Md. Health-Envtl.Code Ann. § 9-324 (1982); COMAR 10.50.01.08H(1)(a). The Department's effluent standards must be at least as stringent as federal standards. Md. Health-Envtl.Code Ann. § 9-314(c) (1982). ³

Publicly-owned treatment works, such as the County Plant, must meet the effluent standards of what is known as "secondary treatment." ⁴ COMAR 10.50.01.08J(3)(a). If the Department determines that the facility is discharging effluent into waters where secondary treatment is insufficient to maintain water quality, then "advanced waste treatment" is required. ⁵ COMAR 10.50.01.08J(3)(b), (c), (d). A plant discharge permit must also comply with the basin water quality management plan ⁶ and the approved county water and sewerage plan. ⁷ COMAR 10.50.01.08H(1)(c)(i), (ii).

The Patuxent River and Dissolved Oxygen

The Patuxent River, a tributary of the Chesapeake Bay, is over 110 miles in length and, on its way to the Bay, flows through portions of Prince George's, Howard, Anne Arundel, Calvert and St. Mary's Counties. ⁸ The Little Patuxent River is one of two major tributaries flowing into the Patuxent. Water quality studies have determined that the surge in the addition of nutrients, particularly nitrogen and phosphorus, has contributed to a deterioration of water quality in the Patuxent River by increasing the level of algae.

Algae are an important part of the food chain in the marine ecosystem. The plants can also be responsible for depleting dissolved oxygen supplies in the water. Dissolved oxygen is necessary to sustain aquatic wildlife, both flora and fauna. During the time algae are living, the plants create dissolved oxygen through photosynthesis. As the plants respire, they consume oxygen. The chemical process involved in their decomposition results in the further consumption of dissolved oxygen in the water. Thus, with large quantities of algae dying, the result is a depletion of the level of dissolved oxygen. This in turn reduces water quality and threatens aquatic life. Nutrient control management attempts to control the level of production of the plants so as to maintain adequately the level of dissolved oxygen.

Algae require the same conditions to grow and proliferate as all plants. These conditions include light, warmth, carbon, hydrogen, oxygen, and, most relevant here, the nutrients phosphorus and nitrogen. If any of these conditions are less than optimum, their growth will be retarded. Nutrients may well be the only factor affecting algal growth which feasibly can be controlled. Even nutrient control, however, is difficult. This difficulty exists in part because both phosphorus and nitrogen enter the Patuxent River from both nonpoint sources, such as farm runoff, urban storm water, groundwater inflow and the atmosphere, ⁹ and from point sources, such as sewage treatment plants located along the River. ¹⁰

In the late 1970s, the State and the United States Environmental Protection Agency (EPA) sought to determine the extent to which nutrient control strategies would be effective in controlling algal growth in the Patuxent River and in turn improve water quality. One of the strategies proposed was to reduce the level of phosphorous and nitrogen discharges from sewage treatment plants flowing into the River. Quantifying the exact role discharged nutrients play in algal growth is complicated and difficult. The Patuxent Basin Area, which includes the Little Patuxent River, is composed of both fresh-water segments, and saltier, more estuarine, waters. The upper portion of the River area, where the County Plant is located, is fresh water. Scientists agree that the growth of algae in the freshwater portion can be controlled by reducing the nutrient phosphorus.

The lower portion of the River flows into the Chesapeake Bay and is saltier. The crucial question in the case at bar concerns the reduction of nitrogen or phosphorus and the resulting effect on algal growth in the lower, estuarine portion of the River. Quantification of the effect of these nutrients in this area is complex because of (1) the relative extent to which other factors, such as animal grazing and reduced sunlight, may affect algal growth; (2) the uncertainty of how upstream nutrients from both point and nonpoint sources affect this portion of the River downstream; (3) the effect of the intrusion of Chesapeake Bay water back into this section of the River; and (4) the relationship of bottom sediment and its demand for oxygen in this area.

The EPA, because of its responsibilities both to fund improvements through construction grants ¹¹ and set permit limits, together with the Department, were interested in determining the benefit of advanced nutrient reduction technology in the Patuxent River. The Department and the EPA sponsored a study in this regard. The report, prepared by HydroQual, Inc., entitled "Water Quality Analysis of the Patuxent River," concluded that limiting the introduction of phosphorus from all major sewage treatment plants on the Patuxent River through advanced phosphorus removal would be the most effective means of controlling excessive algal growth in the River as a whole. The report was issued in August, 1981.

In December, 1981, the Department sponsored a three-day meeting of environmentalists, scientists and other interested parties to examine the report and to determine the most appropriate nutrient control strategy for the Patuxent River. This meeting, referred to as the "charette," concluded with a recommendation that both phosphorus and nitrogen removal should be implemented in order to reduce the pollutant load down to the approximate level of what it was thought to have been in the late 1950s. The Washington Suburban Sanitary Commission (WSSC) volunteered to construct advanced nitrogen removal...