Anne Arundel County v. Governor

Gilbert, C. J., delivered the opinion of the Court. The distance from Sharptown in Wicomico County, 1 to Curtis Bay, Anne Arundel County, is approximately 80 miles. Nevertheless, the State of Maryland 2 needed almost three months to complete the journey. The reason for the delay enroute was the paper barricade hastily pieced together by Anne Arundel County. 3 As it turned out, the ⁴³⁷ roadblock was easily pierced, yet it caused the State to make a detour through the courts.

At first, the Circuit Court for Anne Arundel County enjoined temporarily the County from interfering with the State’s transporting of polychlorinated biphenyl (PCB) and storing it at the United States General Services Administration (GSA) facility at Curtis Bay. Dissatisfied at its lack of success in the circuit court, the County appealed to this Court. Once here they requested that we "stay” the temporary injunction issued by Judge Morris Turk of the circuit court and "advance” the matter for hearing in March 1980. The State opposed both of the County’s requests, noting that to grant what the County asked would for all practical purposes defeat the State in its efforts to move the PCB from Sharptown to Curtis Bay.

We found it unnecessary to "stay” Judge Turk’s order, but we did advance the case for argument to Friday, February 15,1980. After oral argument, we issued a per curiam order in which we affirmed the temporary injunction. In our order we said that we would subsequently explain the reasons for our action. The County, refusing to concede defeat, sought certiorari to the Court of Appeals.

That Court, in an unprecedented night session, February 19,1980, denied a "stay” and denied certiorari. Although the transportation and storage of PCB has been accomplished, so that the issue in this particular case has been mooted, we deem it advisable to discuss the point of law involved. The County, learning that "large amounts of PCB ... stored... at Sharptown” might be moved to "a site owned by the ... [GSA] known as the Ordnance Depot located adjacent to Curtis Creek in Anne Arundel County” filed a "Bill of Complaint for an Ex Parte, Interlocutory and Permanent Injunction” against the State. 4 The action, brought in the Circuit Court for Anne Arundel County, alleged, inter alia: "11. That the Ordnance Depot may be the ⁴³⁸ depository of many other [Designated Hazardous Substances] DHS. 12.

That one integral element which ... [the State] should have considered in reaching a decision as to the storage of PCB at the Ordnance Depot was what other DHS is already at the site, in what amounts, the proximity to the proposed storage area, and the effect of an involvement of PCB with other DHS in the event of a national [sic] or man made disaster. 13. That, in fact .. . [the State has] not entered into such consideration ... [and does] not have an inventory of what is stored at the site, nor has same been requested. 14. That the Ordnance Depot is situated in a metropolitan community and is surrounded by the dwellings and places of employment of thousands of individuals whose health and safety could be affected by mishandling of or catastrophe associated with the PCB. 15. That the Ordnance Depot is located adjacent to major water and road networks which could be adversely affected by the mishandling of or catastrophe associated with the PCB. 16.

That . .. [the County’s] Fire Department, through arrangement with the GSA has the primary responsibility for fire suppression on the site and must have specific information regarding the precise location, type, amount, toxicity and other technical details of all DHS at the site in order to responsibly and effectively suppress any conflagration. 17. That... [County agencies] would be involved on an initial response basis were there to be a natural or man made disaster at the site, these being the Health Department, Police Department, Office of Emergency Preparedness, and various divisions of the Public Works Department. ⁴³⁹ 18. That the transportation of large amounts of PCB over long distances through populated areas from one area of storage to another site for storage purposes creates an unnecessary risk to the health and safety of the general public and a threat to the environment. 19. That ... [the State] should not grant any transportation or storage approvals for a new site until complete compliance has been demonstrated with CFR Part 761.42, [5] to wit: a.

The proposed site does not have adequate roof and walls to prevent the seepage of rain water; b. The proposed site does not have an adequate floor surrounded by continuous curbing; c. The proposed site, particularly the doors and other access portals thereto are not constructed so as to prevent liquids from seeping out; d. The proposed site does not have an impervious floor; e.

The proposed site is not significantly distant from a 100 year flood plain in its relationship to Curtis Creek. f. The proposed site does not have facilities for safe decontamination of the equipment used to handle PCB. g. No arrangements have been made to provide inspection of the site at least every 30 days; [6] and h. Other summary irregularities. 20.

That no immediate health or safety reason compels the movement of the PCB before a careful ⁴⁴⁰ study is completed and all safety regulations duly complied with. 21. That a precipitous decision to move the PCB does present a clear present and immediate threat to the health, safety and welfare of many citizens of the State of Maryland in general, and Anne Arundel County in particular, and to the environment. 22. That... [the County] has received no formal request to participate in a decision making process which is so vital to the citizens of Anne Arundel County and the consequence of which would be ... [the County’s] to bear. 23. That ... [the County] has requested data from the GSA regarding the Ordnance Depot and is employing a responsible consultant to study every aspect of the impact of the storage of PCB at this site. 24.

That no harm or prejudice will be sustained if ... [the State delays its] approval of the transportation and storage of the PCB until such time as the study is completed. 25. That... [the State] should require the GSA to compile and publish an environmental impact statement dealing with the effect of the present storage of DHS at the said Ordnance Depot and as to any proposed future storage there. 26. That immediate, substantial and irreparable injury will result if approval to transport and store PCB at the said site is given before adequate study is conducted as set forth above.” (Emphasis in original.) Judge Williams, on November 13, 1979, granted the sought ex parte injunction and required the State to respond within ten days. The parties entered into a stipulation "whereby it was agreed that the ... [County] need not continue to seek ex parte relief pending the hearing on the interlocutory injunction and that... [the State] would notify ⁴⁴¹ ... [the County] when .. . applications were submitted ... to ... transfer ... the PCB.” 7 The State demurred to the County’s suit, but because of subsequent events, the demurrer was withdrawn in open court.

In this Court the facts were conceded to be those found by Judge Morris Turk in the Circuit Court for Anne Arundel County. We now quote extensively, with minor editing, from the Memorandum Opinion of Judge Turk: 8 "In the interim, the Anne Arundel County Council passed two ordinances relating to the storage and transfer of hazardous substances within the County. Bill Number 158-79 amends Anne Arundel County Code § 11-401, 11-409 (i) and to add § 11-408 (g). Its stated purpose is: '. . . to further define the terms hazardous, TOXIC and special wastes; to establish certain license and permit fees and bond requirements; to provide that the application for the approval of the depositing of hazardous, TOXIC and special wastes shall be on a prescribed form; to require a manifest to accompany certain shipments; to prohibit the landfilling in Anne Arundel County of certain wastes not generated in the County; TO PERMIT REQUESTS FOR INJUNCTIVE RELIEF OR OTHER APPROPRIATE REMEDIES FOR SUBTITLE VIOLATION; to prohibit the transportation on the roads of Anne Arundel County, OR IN THE COASTAL ZONES AS DEFINED IN THE COASTAL ZONE COMMISSION OF ANNE ARUNDEL COUNTY REPORT, of such wastes not generated in the County, and generally relating to the regulation of transporting and disposal of dangerous substances in Anne Arundel County.’ [(Emphasis in original.)] ⁴⁴² Bill Number 159-79 amended the County Code to add § 11-408 (h) and (i).

The Council’s express intent was: '... to add certain definitions relating to hazardous, TOXIC and special wastes; to permit the movement in Anne Arundel County of certain hazardous, TOXIC and special wastes under certain conditions; to establish certain licenses for the transporting of certain substances; providing that the subtitle does not apply to certain substances; establishing certain license and permit fees; providing that the ordinance is contingent on the passage of another; and generally relating to the regulation of certain dangerous substances in Anne Arundel County.’ [(Emphasis in original.)] As a result of the passage of these local ordinances by Anne Arundel County, the ... [State] filed a counter-claim for Declaratory Injunction and Interlocutory and Permanent Relief alleging that State and Federal regulation[s] of hazardous substances have preempted the field of hazardous waste control from local regulation; that the area is beyond the County’s legislative authority; and that the ordinances violate the commerce clause of the Federal Constitution.... A hearing on both interlocutory injunctions was held ... on January 11, 1980. On that date, after consultation with all parties ..., Browning-Ferris, Inc., a certified hauler of hazardous substances, was granted leave to intervene as a party-Defendant. . . . The ... [State’s] case was supported by the testimony of several individuals who represented various Federal and State agencies in developing the plan for the movement of the PCB’s from Sharptown and their storage at Curtis Bay. ⁴⁴³ Mr. Philip Retallick, an environmental scientist with the United States Environmental Protection Agency (EPA) testified concerning the chemical characteristics and hazards of PCB’s....

Mr. Retallick described the workings of the Federal Water Pollution Control Act § 311, which provides for expenditure of federal funds whenever one of the 'Regional Response Teams’ authorized by that Act determines that a navigable waterway is being threatened by the discharge or potential discharge of hazardous substances. The EPA became involved following notification by the Coast Guard that a Sharptown facility operated by the GRICO Company for the purpose of recovering and reclaiming waste oil was storing hazardous substances in an unsafe fashion. An on-site investigation revealed that several tanks, some located approximately 25 yards from the Nanticoke River, contained petro-chemicals, waste oil and PCB’s and other hazardous substances. Testing was done at EPA, Coast Guard and DNR Laboratories.

The testing report indicated that Tank No. 16, which is located closest to the River, contains PCB’s in the level of 310,000 parts per million (ppm). Tank No. 17 contains traces of xylene, a chemical with a flash point of 80 degrees Fahrenheit. Tank No. 18 contains xylene mixed with PCB in the level of 6,700 ppm. (See Defendants’ Exhibit A).

Mr. Retallick testified that materials containing PCB’s in excess of 50 ppm are considered to be a toxic substance. As to the effect of PCB’s, Mr. Retallick stated that PCB causes liver cancer in test animals, such as mice and rats. When humans come into contact with PCB’s, they are susceptible to a skin reaction much like acne, dizziness, jaundice, loss of appetite, sterility and nausea. Also, PCB’s are not biodegradable and remain in the environment for approximately the same length of ⁴⁴⁴ time as the insecticide DDT.

The soil can absorb PCB’s. In waterways, PCB’s sink to the bottom and rest in the sediment where it can be consumed by fish and other acquatic [sic] species. If these fish are in turn eaten by others along the food chain, the PCB’s are passed along, resting in the fatty tissue of the recipient. Mr. Retallick further testified that liquids containing PCB’s between 50 and 500 ppm can be boiled in an EPA approved boiler and that such a facility did exist in Maryland.

Liquids containing PCB’s in excess of 500 ppm must be burned in EPA approved incinerators. At present, there are incinerators in Arkansas and Texas that have successfully completed the testing stage and are awaiting final approval. Assuming no public opposition to those plants, they will be operational by April 1,1980. In Sharptown tanks, 7960 gallons of PCB materials may be destroyed in boilers and 24,510 gallons must be burned in incinerators.

Testing by the Coast Guard and the National Oceanic Atmospheric Administration (NO A A) revealed no abnormal levels of PCB’s in the Nanticoke River adjacent to the GRICO site, at the time of said test. Mr. Retallick personally inspected the Sharptown facility in connection with his duties with EPA as a member of the regional response team. As such, he is charged with the enforcement of the Federal Toxic Substances Control Act and 40 CFR § 761.42 , which sets forth the Federal requirements for the storage of PCB’s. He found that the present Sharptown facility is deficient in that the tanks lack an impervious base of finished concrete or steel; there are no adequate roof and walls, the tanks are below the 100 year flood plain, there is no proper levee system to protect the River nearby. ⁴⁴⁵ The Team felt that leaving the material in the tanks at Sharptown constitutes a serious hazard.

The tanks, resting on sandy soil, would have to be raised to construct an impervious base. The danger of rupture in such a procedure was felt to be too great. The Court attempted to obtain from Mr. Retallick a general statement as to the approximate period of time from the transfer from Sharptown to final disposal in the incinerators. He stated that removal from the tanks to Curtis Bay would take approximately two weeks and that, assuming an April 1, 1980 starting date for the incinerators, all of the material could be out of Curtis Bay by April 14, 1980.

The Mayor of Sharptown, Mr. Ralph Cordrey, testified on behalf of the ... [State]. He described the location of the GRICO facility as surrounded by Sharptown on three sides, the fourth side being the Nanticoke River. Mr. Cordrey stated that because of the seriousness of the situation, an evacuation plan was developed by the local fire department with the help of civil defense officials in Salisbury, in the event of an emergency. The plan includes, among other things, a three block evacuation.

Finally, the Mayor testified concerning the importance of the Nanticoke River as a rich source of local food and income and its value as a prime spawning area for Chesapeake Bay rockfish. Mr. James L. Hearn, Director of the Department of Natural Resources Water Resources Administration, a named Defendant, testified concerning the State’s role in the present controversy. Tests of materials taken by DNR during the August visit to Sharptown along with EPA and the Coast Guard resulted in findings identical to those reported by Mr. Retallick. Based on the preliminary results of these tests, the Response Team, of which Mr. Hearn was a ⁴⁴⁶ member, surveyed 1,000 potential sites for interim storage, consisting mainly of State and Federal government facilities.

Criteria for selection included availability, expense, present use, modification required, access, security, proximity to population centers and number of persons working in the area. Only one potential private site located in Jessup, Georgia, was considered, but that facility did not meet Federal standards and is now under investigation by EPA. Haulers of hazardous substances contacted by the Team were unable to suggest any additional private locations. ... [A] Memorandum to Mr. Hearn from the Maryland Environmental Service, [9] listed the five final candidate sites for interim storage. These included a vacant turkey house at the Maryland Correctional Institute in Washington County, the Dundalk Marine Terminal, the Edgewood Area of the Aberdeen Proving Ground, an abandoned Nike Site in Tolchester and the Curtis Bay Ordnance Depot.

Mr. Hearn stated that the Curtis Bay Depot was given a 'priority one’ rating due to its immediate availability, security, location one-half mile from the nearest population center, the fact that only 30-40 persons are employed there and the minor nature of the modifications required. ... In addition, Mr. Hearn described the Curtis Bay warehouse as 1/4 to 1/2 mile to the nearest water and 19 feet above the 100 year flood plain. [The witness testified as to why other sites were rejected.] . .. [T]he suggestion of keeping the material in drums on trucks at the GRICO location was rejected because all of Sharptown is below the 100 year flood plain. Mr. Hearn was cross-examined at length about the events leading up to the selection of Curtis Bay. ⁴⁴⁷ The DNR issued an administrative order against Mr. Grigsby, the owner of the GRICO facility and the Small Business Administration (SBA) as trustee of the Company, ordering them to remove the PCB’s from Sharptown. . . . Mr. Hearn also described an unsuccessful attempt to have General Electric Inc. accept the PCB’s so the Company can store the chemical along with their own at its Philadelphia location. . . .

Captain John Kime of the Coast Guard, Captain of the Port of Baltimore, Marine Safety Officer, . . . testified concerning his duties under § 311 of the Federal Water Pollution Control Act. By agreement between EPA and the Coast Guard, the latter agency assumes control over water pollution emergencies occurring in the coastal areas of the United States. In his capacity as the pre-designated on-scene coordinator of the Regional Response Team, Captain Kime received a telephone call this past July, from the SBA. After having assumed control of the GRICO facility as Trustee under a loan agreement, the SBA conducted a sale of the property.

After the sale, Mr. Grigsby of GRICO informed the SBA that hazardous materials were stored along with the waste oils at Sharptown. The Buyer refused to complete his purchase. . . . [T]he Coast Guard declared the situation at Sharptown to be a Federal project under § 311 to secure funding. In July, the Sharptown facility was secured, the fence repaired, valves checked, handles removed and