Stevens v. Prettyman Manor Mobile Home Park Wastewater Treatment Plant

Decision Date27 June 2018
Docket NumberNo. 487, Sept. Term, 2017,487, Sept. Term, 2017
Citation237 Md.App. 565,187 A.3d 715
Parties Arlene Q. STEVENS, et al. v. PRETTYMAN MANOR MOBILE HOME PARK WASTEWATER TREATMENT PLANT
CourtCourt of Special Appeals of Maryland

Argued by: David C. Blitzer (Philip W. Hoon, HoonBlitzer Associates, LLC on the brief) all of Chestertown, MD, for Appellant.

Argued by: Roberta R. James of Baltimore, MD and Michael J. Kopen (Kopen & Collison, LLP of Easton, MD on the brief) for Appellee.

Panel: Berger, Shaw Geter, J. Frederick Sharer (Senior Judge, Specially Assigned), JJ.

Berger, J.

This case is an appeal from a judgment entered on judicial review of an administrative decision. In 2015, the Maryland Department of the Environment ("MDE") issued a permit ("the Permit") to Prettyman Manor, LLC ("Prettyman"), appellee, to discharge treated wastewater into Little Creek, a tributary of the Choptank River. Arlene Q. Stevens and Mildred Quidas (collectively, "Stevens and Quidas"), appellants, filed a petition for judicial review in the Circuit Court for Caroline County. The circuit court affirmed MDE's decision to issue the discharge permit.

On appeal, Stevens and Quidas present two questions for our review, which we have rephrased as follows:

1. Whether MDE failed to publish proper notice of Prettyman's application before issuing the Permit.
2. Whether the Permit allows an unlawful discharge of total suspended solids into an impaired water in violation of state and federal water quality standards.1

For the reasons explained herein, we shall affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND
I. Regulatory Background
A. The Clean Water Act and the National Pollutant Discharge Elimination System

Congress enacted the Clean Water Act ("the CWA") in 1972 to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). To this end, the CWA prohibits the discharge of any pollutant to waters of the United States without a permit issued through the National Pollutant Discharge Elimination System ("NPDES"). 33 U.S.C. § 1251(a)(1) ; 33 U.S.C. § 1311(a) ; 33 U.S.C. § 1342(a)(1). The CWA requires that every NPDES permit contain

(1) effluent limitations that reflect the pollution reduction achievable by using technologically practicable controls and
(2) any more stringent pollutant release limitations necessary for the waterway receiving the pollutant to meet "water quality standards."

Piney Run Preservation Ass'n v. Cnty. Commissioners of Carroll Cnty. , 268 F.3d 255, 266 (4th Cir. 2001) (quoting Am. Paper Inst., Inc. v. U.S. E.P.A. , 996 F.2d 346, 349 (D.C. Cir. 1993) ).

Pursuant to 33 U.S.C. § 1313(d), states are required to identify all waters within their respective boundaries where technology-based effluent limitations are inadequate to ensure that water quality standards are being met. For each impaired water, a state must establish a total maximum daily load ("TMDL") for every pollutant that is preventing the water from meeting water quality standards. 33 U.S.C. § 1313(d). Under 40 C.F.R. § 122.4(i), no permit may be issued "[t]o a new source or a new discharger, if the discharge from its construction or operation will cause or contribute to the violation of water quality standards." When an applicant for an NPDES permit proposes to discharge a pollutant into an impaired body of water subject to a TMDL for that pollutant, the applicant must demonstrate that

(1) [t]here are sufficient remaining pollutant load allocations to allow for the discharge; and
(2) [t]he existing dischargers into that segment are subject to compliance schedules designed to bring the segment into compliance with applicable water quality standards. The Director may waive the submission of information by the new source or new discharger required by paragraph (i) of this section if the Director determines that the Director already has adequate information to evaluate the request.

40 C.F.R. § 122.4(i).

MDE is authorized to issue NPDES permits for discharges in Maryland. Maryland Code (1986, 2014 Repl. Vol., 2016 Supp.), § 9–324 of the Environment Article ("Env't"); see also Piney Run Preservation Ass'n , supra , 268 F.3d at 266 (noting that "EPA has authorized approximately forty states, including Maryland, to issue NPDES permits"). When issuing NPDES permits for wastewater treatment plants ("WWTPs"), MDE must ensure that the proposed designs comply with technology-based effluent limitations as well as specific limitations for total suspended solids ("TSS"), biochemical oxygen demand, and pH levels. 40 C.F.R. § 133.100 et seq. Pursuant to 40 C.F.R. § 122.4(i), MDE must also ensure that a new discharge to an impaired body of water does not violate applicable TMDLs.

B. Notice and Comment Procedures for NPDES Permits

MDE is required to publish notice for each application for an NPDES permit. Env't § 1–603; Env't § 9–324. The notice of application must include the following information:

a) The name of the applicant;
b) The type of permit applied for;
c) The type of proposed discharge;
d) The volume of the proposed discharge;
e) The location of the proposed discharge;
f) A statement that persons may review and copy the application or related material and the procedure for doing so;
g) A statement that the Department shall hold an informational meeting, if a person makes a written request within 10 working days of the publication of the notice, and the procedure for requesting an informational meeting; andh) Other information the Department determines is necessary for adequate public notification.

COMAR 26.08.04.01–1(D).

Upon receiving an application for an NPDES permit, MDE "shall prepare a tentative determination[.]" Env't § 1–604; COMAR 26.08.04.01–2(B)(1)(a). MDE must then publish—or require the applicant to publish—a notice of tentative determination that includes the following information:

(i) The information in § B(1)(a) of this regulation;2
(ii) The procedures for a person to review and copy the tentative determination, draft permit, or related material;
(iii) A statement allowing 30 days for public comment to the notice of tentative determination before the issuance of the final determination and the procedures for offering public comment;
(iv) A statement that the Department shall hold a public hearing when a written request for a public hearing is made within 20 days of the publication of the notice of tentative determination and the procedure for making a written request for a public hearing; and
(v) Other information the Department considers necessary to ensure adequate public notice.

COMAR 26.08.04.01–2(B)(2)(b). After the public comment period closes, MDE may proceed to make a final determination and issue the permit. COMAR 26.08.04.01–3.

II. Factual and Procedural Background

Stevens and Quidas own two parcels in Preston, Maryland. One of the parcels is located at 3740 Frazier Neck Road, while the other is located at 21355 Marsh Creek Road. For more than fifty years, Stevens and Quidas have grown vegetables on their property (hereinafter "Quidas Farm") as their primary source of income. To irrigate their crops, Stevens and Quidas draw water from a retaining pond that they constructed by diverting water from Little Creek, a tidal tributary of the Choptank River. Maryland has identified this segment of the Choptank River as impaired due to excess nitrogen, phosphorus, TSS, and other pollutants.

Directly across from Quidas Farm on Little Creek is a mobile home park ("Prettyman Manor") owned and operated by Prettyman. Located at 21269 Dover Bridge Road, Prettyman Manor has been home to dozens of families for decades. Over time, the sewage generated by the residents of Prettyman Manor has overwhelmed the park's aging septic tanks and drainfields. Eventually, MDE initiated an enforcement action, forcing Prettyman to pump and haul the sewage from the failing on-site disposal systems to a treatment facility in Dorchester County. Thereafter, Prettyman decided to build an on-site WWTP to service Prettyman Manor.

A. Prettyman's 2012 Application for a Discharge Permit

In April of 2012, Prettyman submitted an application for a discharge permit to discharge treated wastewater from the proposed WWTP into Little Creek ("the 2012 Application"). According to the 2012 Application, the proposed facility would treat up to 40,000 gallons per day using extended aeration technology. MDE published notice of the 2012 Application in The Times Record on August 8, 2012 and August 15, 2012 ("the 2012 Notice"). MDE did not receive any requests for an informational meeting.

MDE quickly determined that the 2012 Application was not consistent with the Caroline County Water and Sewer Plan.

On August 24, 2012, MDE gave Prettyman an update on the status of the 2012 Application:

In reviewing your discharge permit application for the proposed Prettyman Manor WWTP, we have found that your proposal is not consistent with the Caroline County Water and Sewer Plan. We cannot issue a wastewater surface water discharge permit until the proposed facility is consistent with the county Plan and have suspended further processing of your application. However, to assist you in making a determination whether to proceed with the project, we will develop planning effluent limitations which are needed to estimate potential costs for the project.

In October of 2012, MDE helped Prettyman determine the best point of discharge for the proposed WWTP. In December of 2013, MDE met with Prettyman to discuss, among other things, the possibility of amending the Caroline County Water and Sewer Plan.

B. Prettyman's 2014 Revised Application for a Discharge Permit

On July 21, 2014, Prettyman submitted a revised permit application ("the 2014 Revision"). In the 2014 Revision, Prettyman proposed using a membrane bioreactor rather than extended aeration technology in order to meet MDE's enhanced nutrient removal standards. The new design also lowered the treatment capacity from 40,000 gallons per day to 20,000...

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