Northwest Land Corp. v. Maryland Dept. of Environment

• Decision Date: 01 September 1994
• Docket Number: No. 1325,1325
• Citation: Northwest Land Corp. v. Maryland Dept. of Environment, 656 A.2d 804, 104 Md.App. 471 (Md. App. 1994)
• Parties: , 99 Ed. Law Rep. 520 NORTHWEST LAND CORPORATION, v. MARYLAND DEPARTMENT OF THE ENVIRONMENT, et al. ,
• Court: Court of Special Appeals of Maryland

Page 471

104 Md.App. 471

656 A.2d 804, 99 Ed. Law Rep. 520

NORTHWEST LAND CORPORATION, v. MARYLAND DEPARTMENT OF THE ENVIRONMENT, et al.

No. 1325, Sept. Term, 1994.

Court of Special Appeals of Maryland.

April 6, 1995.

Michael J. Collins (Neuberger, Quinn, Gielden, Rubin & Gibber, P.A. on the brief), Baltimore, for appellant.

Nancy W. Young, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. and Neile S. Friedman, Asst. Atty. Gen. on the brief for appellee, Dept. of the Environment), Max H. Lauten (Andrew Jay Graham and Kramon & Graham, P.A. on the brief for appellee, Villa Julie College, Inc.), Baltimore, for appellees.

Argued Before FISCHER, CATHELL and HARRELL, JJ.

HARRELL, Judge.

Appellant, Northwest Land Corporation (Northwest), appeals from a judgment entered in the Circuit Court for Baltimore County (Howe, J.) affirming a final administrative decision of the Maryland Department of the Environment (MDE). The MDE issued a Final Determination recommending issuance of a National Pollutant Discharge Elimination System (NPDES) permit to Villa Julie College, Inc. (Villa Julie) for discharge of waste water effluent into an unnamed, intermittent stream on Villa Julie property that also crosses property owned by Northwest located downstream. Northwest challenged the MDE's Final Determination and a hearing was held before Administrative Law Judge (ALJ) Susan S. Wagner of the Office of Administrative Hearings. ALJ Wagner issued a Recommended Decision affirming the MDE's Final Determination, with certain modifications. Northwest filed exceptions to ALJ Wagner's Recommended Decision and, after a hearing before the Final Decision Maker for the MDE, the MDE issued its Final Decision and Order affirming in part and rejecting in part ALJ Wagner's Recommended Decision. Northwest appealed the MDE's Final Decision and Order to the Circuit Court for Baltimore County. The circuit court affirmed the MDE's Final Decision and Order and dismissed Northwest's appeal. Northwest filed a timely appeal to this Court.

ISSUES

I. Did the Secretary of the Department of the Environment err in the issuance of the NPDES discharge permit to Villa Julie where the permit does not comply with the approved Baltimore County water and sewer plan?

II. Did the Secretary of the Department of the Environment err in the issuance of the NPDES discharge permit to Villa Julie where the discharge permit effluent limitations do not comply with applicable state and federal law?

III. Did the Secretary of the Department of the Environment err in the issuance of the NPDES discharge permit to Villa Julie where the record before the Department demonstrates that there are feasible alternatives to Villa Julie's proposed sewage treatment plant and use of the intermittent stream for discharge of waste water effluent?

IV. Did the Secretary of the Department of the Environment err in the issuance of the NPDES discharge permit to Villa Julie where the discharge to the intermittent stream violates appellant's riparian rights to the use and enjoyment of the stream in its natural condition?

V. Did the Secretary of the Department of the Environment err in the issuance of the NPDES discharge permit to Villa Julie where Maryland law provides that the Secretary may order Baltimore County to extend sewage to the College as an alternative to discharge into the intermittent stream?

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

The Regulatory Scheme

The MDE is charged, inter alia, with managing, improving, controlling, and conserving the waters of Maryland. See Howard County v. Davidsonville Civic & Potomac River Ass'ns, Inc., 72 Md.App. 19, 23, 527 A.2d 772, cert. denied sub nom. St. Mary's County Watermen's Ass'n v. Howard County, 311 Md. 286, 533 A.2d 1308 (1987). A person may not discharge 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 MDE. Md.Code Ann., Envir. §§ 9-322, 9-323 (1993 Replacement Volume). The MDE 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. Id. § 9-314. In adopting regulations, the MDE 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. Id. § 9-313.

The MDE may issue a discharge permit upon its determination that the terms of the permit meet all state and federal regulations, water quality standards, and appropriate effluent limits. Id. § 9-324. The MDE's effluent standards must be at least as stringent as the federal standards. ³ Id. § 9-314(c).

A discharge permit for privately-owned waste water treatment plants, such as the one proposed by Villa Julie, must comply with effluent limitations, receiving water quality standards, ground water quality standards established by the state, and federal and state law. Md.Regs.Code tit. 26, § 26.08.04.02.A(1)(a)-(d) (1988 & Supp.1994) [hereinafter COMAR]. The plant discharge permit must also comply with the basin water quality management plan ⁴ and the approved county water and sewerage plan. ⁵ Id. § 26.08.04.02.A(3)(a), (b).

FACTS

Villa Julie College, founded in 1947, is a private college in the Greenspring Valley area of Stevenson, Maryland. In early 1990, Villa Julie learned that its septic system ⁶ had failed. Specifically, Villa Julie's and the adjacent Sisters's property have a very high water table (indeed, the septic system is in the water table) and clay soils. Percolation tests performed on the properties indicated that the percolation levels do not meet the minimum criteria for a filter drain system by Baltimore County standards.

As there are no public sewage facilities available in the Greenspring Valley, ⁷ Villa Julie has been forced to pump its excess waste water into storage tanks and haul it away by truck on a daily basis. According to Gene Neff, Director of Public Works for Baltimore County, however, this "pump and haul" method is only permitted in Baltimore County as a short-term solution to waste water disposal problems. ⁸ Therefore, Villa Julie engaged the services of Maryland Environmental Services, Inc. (MES) ⁹ to assist in solving its sewage problems. MES completed an initial evaluation of Villa Julie's existing septic system. Dane Sherman Bauer, MES's project manager for the Villa Julie project, explained:

We went to Baltimore County and got--and from the college and got whatever was available in the way of as-built drawings [of the existing septic system] to begin with. It had been modified at least once that we could find. We assessed that it was approximately 10,000 gallons we felt in size, although some of the preliminary plans showed it to be about 6,000.

We examined the area where the tile fields were to try to ascertain exactly where the tile fields were as compared to the drawing. We found that the system was failing immediately upon examining it, failing in the sense that there was water coming out of the ground--waste water coming out of the ground around the whole area where the tile fields were. We did some early-on flow determinations to see how much water was actually going into these systems as compared to the design and found that they were significantly hydraulically overloaded.

MES investigated other forms of waste water treatment on the Villa Julie property. First, the possibility of installing another septic system was examined. MES recommended against the installation of another septic system because "the entire property was generally subject to high water table and ... the soil conditions were silt, loam with heavy clay content and perk [sic] tests failed throughout." Second, MES examined the possibility of implementing spray irrigation, ¹⁰ and concluded that it would be inadequate to accommodate the amount of discharge contemplated by Villa Julie. ¹¹ Third, MES considered an on-site mound system ¹² to rectify Villa Julie's sewage problem. A mound system, however, requires a site that percolates, and was therefore incompatible with Villa Julie's property. MES's final recommendation to Villa Julie was "to put in some sort of a on-site waste water treatment plant discharged to one of several locations that were available to the college."

On 17 January 1991, pursuant to Villa Julie's application, the Office of Planning and Zoning, the Department of Environmental Protection and Resource Management, and the Department of Public Works jointly proposed an amendment to the Baltimore County Water and Sewer Plan (the Plan), which authorized the construction of a private waste water treatment plant for the combined properties of the Sisters and Villa Julie. ¹³ After two public hearings, the Baltimore County Council passed Resolution 2-91, which provided, inter alia 6. The maps attached hereto and marked as Exhibit 6 entitled "Villa Julie College and Baltimore Province--Sisters of Notre Dame Revision to the Water Supply and Sewerage Plan" are hereby approved with special authorization to operate an existing community water system for the combined properties and with special authorization to operate a community sewage treatment plant for the combined properties, with capacity subject to special exception to the RC-2 Zoning. This authorization is also granted pursuant to Section 34-7 of the Baltimore County Code, 1978. ¹⁴

On 14 June 1991, Villa Julie applied for a NPDES permit from the MDE to discharge up to 62,900 gallons per day of treated waste water effluent from its proposed waste water treatment plant into an intermittent stream that flows through its property, as well as property owned by Northwest, and into the Jones Falls downstream....