Days Cove Reclamation Co. v. Queen Anne's County

RODOWSKY, Judge. This appeal arises out of the denial by the Queen Anne’s County Board of Appeals (the Board) of a conditional use (special exception) for a rubble landfill. 1 The aggrieved applicant submits that there was a want of substantial evidence to support the Board’s action. Underlying this contention are two factually-interrelated legal issues — whether the denial is sustainable under the analysis required by Schultz v. Pritts, 291 Md. 1 , 432 A.2d 1319 (1981), and whether the Board encroached into areas preempted by State regulation. In Schultz , the Court of Appeals explained that conditional uses result from the legislative determination that the use is “compatible with the permitted uses in a use district, but that the beneficial purposes [that conditional] uses serve do not outweigh their possible adverse effect.” Id. at 21 , 432 A.2d at 1330 .

The adverse effect referred to is “at the particular location proposed” and is “above and beyond that ordinarily associated with” the particular conditional use. Id. at 22 , 432 A.2d at 1330 . Thus, the Court held that “the appropriate standard to be used in determining whether a requested special exception use would have an adverse effect and, therefore, should be denied is whether there are facts and circumstances that show that the particular use proposed at the particular location proposed would have any ⁴⁷⁵ adverse effects above and beyond those inherently associated with such a special exception use irrespective of its location within the zone.” Id. at 22-23 , 432 A.2d at 1331 . The conditional use provisions of a county zoning code must be read with the holding of Schultz engrafted upon them.

See Mossburg v. Montgomery County, 107 Md.App. 1, 21 , 666 A.2d 1253, 1263 (1995), cert. denied, 341 Md. 649 , 672 A.2d 623 (1996). Days Cove Reclamation Company (DCRCo), one of the appellants, seeks to operate the landfill in an agricultural use zone on property owned by the other appellant, Springview, Inc. We shall refer to the appellants jointly as “Applicant.” After hearings were conducted on three separate dates in order to accommodate the many protestants, the Board denied Applicant’s request by a vote of two to one. Applicant sought judicial review in the Circuit Court for Queen Anne’s County. The circuit court concluded that some .of the reasons given by the Board to support denial of the special exception were based on determinations which the State alone could make.

The court further concluded that the “Board did not specifically identify those adverse impacts” which justified rejection of the proposed use under the rule of Schultz . Because the court could affirm only for reasons stated by the Board, see United Steelworkers v. Bethlehem Steel Corp., 298 Md. 665, 679 , 472 A.2d 62, 69 (1984), the court remanded the matter to the Board. Applicant appeals from that judgment. The appellees are Queen Anne’s County (the County) and persons from the vicinity who oppose the project (the Protestants).

There is no cross-appeal by the appellees from the order of remand. I. Legal Background Extraction and disposal industrial uses, including a rubble landfill, are permitted in the County as conditional uses in the Agricultural, Countyside, Suburban Industrial and Light Industrial Highway Service zones. Queen Anne’s County Code § 18-1-025 (1996). A rubble landfill may not be located ⁴⁷⁶ within 500 feet of a residential zone, and it must set back 100 feet from the boundaries of the property on which the landfill is located.

County Code § 18-l-132(d)(7)(v). The County Zoning Code imposes general use standards for conditional uses of any type. Pertinent here is that found in § 13-l-131(b)(3), reading as follows: “The proposed use at the proposed location may not result in a substantial or undue adverse effect on adjacent property, the character of the neighborhood, traffic conditions, parking, public improvements, public sites or rights-of-way, or other matters affecting the public health, safety, and general welfare.” In addition, Maryland Code (1982, 1996 RepLVol.), § 9-503(a) of the Environment Article (Envir) requires each Maryland county, acting individually or in conjunction with adjoining counties, to adopt a plan dealing with, inter alia, solid waste acceptance facilities. A sanitary landfill “whose primary purpose is to dispose of, treat, or process solid waste” is a type of solid waste acceptance facility.

Envir § 9-501(n). The county plan is “a comprehensive plan for adequately providing throughout the county” facilities, including solid waste acceptance facilities. Envir § 9-501(d). County plans are to be reviewed at least once every three years.

Envir § 9-503(b). The Maryland Department of Environment (MDE) may require the governing body of a county to adopt, after public hearing, and submit to MDE a revision or amendment to its county plan. Envir § 9-503(c) and (d). When a county submits its proposed county plan, or revision thereof, to MDE, MDE may approve or disapprove in whole or in part or “[mjodify or take other appropriate action on the proposal.” Envir § 9-507(a).

The County has a Solid Waste Management Plan. It was amended at Applicant’s request in December 1994 to include, as a proposed rubble landfill, the property that is the subject of these proceedings (the Site). The amendment recited that “[t]he facility will not be allowed to accept any material until it ⁴⁷⁷ receives all state, local and other required permits and approvals.” In June 1996 DCRCo applied to MDE for a permit to operate a rubble landfill at the Site. See County Comm’rs of Queen Anne’s County v. Days Cove Reclamation Co., 122 Md.App. 505 , 713 A.2d 351 (1998) (DCRCo I).

It appears that DCRCo’s application for a State permit is presently at the stage of MDE’s review process that is described in Envir (2001 Supp.), § 9-210(a)(3) and (b), namely, MDE has ceased processing DCRCo’s application awaiting the determination of the County as to whether the proposal “[m]eets all applicable county zoning and land use requirements!.]” 2 In November 1996 a proposed ordinance was introduced before the County Commissioners that would have amended the County’s Solid Waste Management Plan, reversed the action taken in December 1994, and deleted the Site as a potential rubble landfill. DCRCo I, 122 Md.App. at 514 , 713 A.2d at 355 . DCRCo obtained an injunction against the ⁴⁷⁸ proposed ordinance, and this Court affirmed. Based on Holmes v. Maryland Reclamation Assocs., Inc., 90 Md.App. 120 , 600 A.2d 864 , cert. granted, 327 Md. 55 , 607 A.2d 564 , and cert. dismissed, 328 Md. 229 , 614 A.2d 78 (1992), this Court held that “the County may not now amend the Plan to exclude the facility because of some negative reaction from community representatives.

The facility’s fate is the province of the MDE.” DCRCo I, 122 Md.App. at 525 , 713 A.2d at 361 . Thereafter, by Ordinance No. 99-04, effective June 18,1999, the County amended § 18 — 1—132(d) of its Zoning Code, dealing with additional standards for extraction and disposal businesses, including rubble landfills, as conditional uses. All references to geology, groundwater movements, and aquifer information were deleted. See former § 18 — 1—132(d)(3) (ii) 1, 3, 4, and (iii)(4)(i)2.

Also deleted from the Zoning Code were requirements that the proposed plan of operation of the Site describe the “types of liners or other banders to prevent movement through the soils,” and the “types of leachates generated and method of managing these materials.” Former § 18 — 1—132(d)(3)(iii)2D and E. The 1999 amendment also limited to data “related to storm water management” a former requirement that a plan of a proposed rubble landfill include basic data concerning soils and geology. § 18 — 1—132(d)(4) (i) 1. Also added to the Zoning Code in 1999 was the requirement that “[s]ubmittals should demonstrate that the landfills or rubble fill will not adversely affect wetlands, floodplains, or other environmentally sensitive areas.” § 18-l-132(d)(7)(vi)6. The Board quoted this provision in its written opinion in this case.

II

Factual Background The Site is located in an agricultural zone in the northern part of the County, a little over one mile south of Millington and over three miles north of Sudlersville. A sand and gravel pit operation, formerly conducted at the Site, has been discontinued. The Site consists of fifty-eight acres of unimproved land, lying on the southeasterly side of Glanding Road, south of its acute angle intersection with Peters Corner Road. The ⁴⁷⁹ Site is bounded on its northeasterly side by Peters Corner Road and along its eastern boundary by railroad tracks of the Penn Central line.

That right-of-way is now owned by the State of Maryland. To the south of the Site is a 143 acre farm, the frontage of which extends along the north side of Haekett Corner Road from a southern extension of the Site’s eastern property line to Glanding Road. In the northwest corner of that farm is a relatively small, separately titled parcel, zoned agricultural. It faces on the easterly side of Glanding Road and its northern boundary abuts the southwestern comer of the Site.

DCRCo plans to locate a stormwater management pond in that corner. The small parcel is the home of Allen Boyles and his family. It is the closest residence to the Site. A line of trees twenty-five to fifty-five feet tall separates the Boyles’s property from the Site.

On the northwesterly side of Glanding Road are three properties, owned, from south to north, by the County, by a rod and gun club, and by an electric utility. The County property was the site of a sanitary landfill which has been closed and capped for a number of years. In their report on the Site the County’s Department of Planning and Zoning and Department of Public Works state that the County property is currently used as a “residential solid waste convenience center.” 3 On the electric utility property is a large transfer station. Traversing the Site in north-south and east-west directions are two power line transmission corridor easements, the former 300 feet wide and the latter 150 feet wide.

In the corridors high voltage electric power lines are suspended from metal towers containing one to three cross-arms each. The rear or west side of the County’s Glanding Road property abuts a former millpond known as Unicom Lake. At the nearest point the lake lies approximately 200 feet from ⁴⁸⁰ that portion of the County land that is the closed landfill, and the lake lies about 1,000 feet from the Site. The lake was formed by damming Unicorn Branch, a stream which flows from south to north.

At the north end of the lake, near the dam, is a fish hatchery operated by the Department of Natural Resources (DNR). “Unicorn Millpond,” i.e., Unicom Lake, is designated by MDE as a nontidal wetland of special State concern. COMAR 26.23.06.01Q(12). DCRCo’s design for the Site utilizes twenty-six out of the fifty-eight acres for disposal cells. Three cells are planned for twenty-one acres lying to the west of the electrical power transmission lines right-of-way, and a five acre cell is planned to the east of that right-of-way.

Stormwater management structures complying with MDE soil conservation requirements and the County Code are to be built into the project. Containment of surface water will also be effected by a berm forty feet wide and five feet high on which trees, will be planted and which will extend 3700 feet along the Glanding Road and Peters Corner Road perimeters of the landfill. Stormwater collection and management is separated from leachate collection and management. 4 Each cell will contain a leachate collection system. The leachate drains by gravity to a sump area in the double lined bottom of the cell.

The leachate then flows by gravity or is pumped to a storage facility,, either a lined basin or a storage tank, from which it is transferred to tanker trucks for transport to a licensed waste water treatment plant. Deep below the Site is the Aquia aquifer, the drinking water source for a large area. A vertical cross-section of a cell after it has been filled and closed would reveal the following levels, ascending from the subterranean to above ground: 1. The Aquia aquifer, an area of deep groundwater; ⁴⁸¹ 2.

The Calvert formation, a twenty-foot thick clay aqui-clude; 3. The Columbia aquifer, an area of high groundwater; 4. A level of buffer soil extending three feet above the highest groundwater level recorded within the prior year; 5. A geosynthetic clay liner; 6.

A sixty millimeter thick geomembrane liner. (Layers 5 and 6 form the double lining of the bottom of a cell.); 7. A layer of gravel of a minimum depth of two feet, see COMAR 26.04.07.16C(5), through which the leachate drains to the bottom of the cell for collection; 8. The rubble waste, in a series of levels, or “lifts,” each not exceeding eight feet in depth, with each lift covered by at least six inches in depth of clean earth, see COMAR 26.04.07.18E and F; 9.

A two foot thick earth cover over the highest lift to provide a smooth surface on which to place layer 10; 10. A forty millimeter thick geomembrane cap; 11. A composite drainage net (The purpose of layers 10 and 11 is to restrict stormwater from reentering the rubble once the cell is closed.); and 12. Two feet of soil with vegetation.

DCRCo estimates that the Site will be operational as a rubble landfill for five to ten years. When a cell is closed its elevation above ground level will be forty feet, according to the Board’s finding. 5 DCRCo plans to limit trucks traveling to the Site to the following route: U.S. Route 301 to Maryland Route 544, east on Route 544 to Maryland Route 313, south on Route 313 to Hackett Comer Road, east on Hackett Corner Road to Gland-ing Road, and north on Glanding Road to the Site. This route ⁴⁸² would be reversed for return trips. It avoids Millington and Sudlersville.

The State Highway Administration and the County Public Works Department have recommended that Glanding Road, presently eighteen feet wide with no shoulders, and Hackett Corner Road, presently twenty feet wide with no shoulders, be widened along the above-described route to twenty-two foot roadbeds with four foot shoulders on each side. DCRCo will make these improvements at its expense. In addition, enlarged turning radii, and lanes for traffic to bypass a left turn movement and for traffic making a right turn to merge, would be built at points along the route at DCRCo’s expense. The existing rights of way are sufficient to accommodate these improvements.

In an effort to insure that customers’ trucks follow the above-described route, DCRCo proposes, and the County Departments recommend as a condition, that an electronic tracking system be used. Each truck driver must obtain in advance a device utilizing technology similar to the “M-Tag” used on toll roads. When the truck arrives at the scales at the Site, information from this device will be downloaded to disclose any violations of the required route. For a second violation a driver will be denied access to the Site for one year; access will be denied permanently for a third violation.

In addition, DCRCo, as a condition of the special exception, would enter into a contract with an independent governmental authority to provide a full-time checker at the Site, to insure that only waste that is authorized to be deposited in a rubble landfill is deposited at the Site. 6 Additional facts will be set forth in discussing particular arguments of the parties. ⁴⁸³ III. The Board’s Hearing and Decision DCRCo presented a prima facie case through a corporate officer, an engineer, a traffic consultant, a real estate appraiser, an environmental consultant, and a fact witness from DNR. Representatives of the County’s Planning and Zoning Department and Public Works Department presented the recommendations of those agencies for approval, subject to conditions. The Protestants presented evidence through an environmental consultant, a professor of toxicology, a realtor, a DNR manager for fresh water fisheries, the Director of Environmental Health from the County Health Department, numerous protesting citizens, and elected public officials.

In its two to one decision the Board found the following adverse effects: “The substantial or undue effects would include [1] the forty (40) foot mound that is proposed on-site; [2] the substantial increased truck traffic, and [3] the increased speed of the trucks due to the upgrading of the existing roadways; [4] the ‘human’ characteristics of the various personnel that would be involved in maintaining the tracking system; [5] the additional cumulative impact of the proposed use in an area where there is already a landfill; [6] the diminished property values that would result from the second landfill and substantial truck traffic on existing residential properties; [7] the potential — and perhaps catastrophic — impacts on the adjacent Unicorn Branch and Unicorn Lake and Millpond; [8] the potential impact on drinking water in the area; [and][9] the negative impact on residential, rural roadways. “The majority of the Board finds the testimony regarding [10] what will and will not be accepted as waste in the rubble fill is less than credible. Similarly, [11] the details of the truck tracking system seem less than efficient or reliable. [12] There are certainly other sites within the district that would have direct — or more direct — connection to a major highway, such as U.S. Route 301.[13] The up to seventy-five (75) trucks traveling the proposed rural roads, ⁴⁸⁴ particularly at early hours of the morning, -will negatively impact on the neighborhood. [14] The majority notes with concern the adjacent residential property, school aged children, school buses, and safety factors that would adversely be affected by truck traffic. [15] The cumulative impact of two landfills will substantially impact the neighboring community by devaluing residential properties. [16] There are clearly other sites within the zone that would have a more substantial clay buffer separating the ‘drinking water’ aquifers, and which would not be adjacent to important natural conditions, such as Unicom Branch and Unicom Lake.” IV. Scope of Review In reviewing the decision of an administrative agency, “we reevaluate the decision of the agency, not the decision of the lower court.” Gigeous v. Eastern Correctional Instit., 363 Md. 481, 495-96 , 769 A.2d 912, 921 (2001) (citing Public Serv. Comm’n v. Baltimore Gas & Elec.

Co., 273 Md. 357, 362 , 329 A.2d 691, 694-95 (1974)). The scope of our review of administrative agency action is narrow and we are “not to substitute [our] judgment for the expertise of those persons who constitute the administrative agency.” United Parcel Serv., Inc. v. People’s Counsel for Baltimore County, 336 Md. 569, 576-77 , 650 A.2d 226, 230 (1994) (internal quotations omitted). Accordingly, this Court is tasked with “ ‘determining if there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law.’ ” Board of Phys. Quality Assurance v. Banks, 354 Md. 59, 67-68 , 729 A.2d 376, 380 (1999) (quoting United Parcel Serv., 336 Md. at 577 , 650 A.2d at 230 ).

With regard to questions of fact, we will only disturb the decision of an administrative agency if “a reasoning mind reasonably could [not] have reached the factual conclusion the agency reached.” Baltimore Lutheran High Sch. Ass’n v. Employment Sec. Admin., 302 Md. 649, 662 , 490 A.2d 701, 708 (1985). Thus, “[a] reviewing court should defer to the agency’s ⁴⁸⁵ fact-finding and drawing of inferences if they are supported by the record.” Banks, 354 Md. at 68 , 729 A.2d at 380-81 . V. Narrowing the Issues Although the Board expressed recognition of the Schultz v. Pritts requirements, the scattershot approach in the Board’s decision did not distinguish between adverse effects that are common to rubble landfills and those that the Board found to be unique to the Site.

Those findings that are not candidates for possibly satisfying the Schultz test must be culled first from the Board’s list of reasons. When the County authorized landfills as special exceptions in the agricultural use district, the County authorized a use that would be elevated substantially above ground level (fact-finding 1). Contemporary landfills no longer fill a hole to the level of the ground surrounding the hole. At the Site, the elevated landfill will be less offensive, visually, than ordinarily would be the case because high voltage electricity lines, supported by metal towers, traverse the Site.

When a location which has not been used as a rubble landfill is used as a rubble landfill, it draws trips by large trucks. Consequently, an increase in truck traffic (fact-finding 2) is not unique to the Site. Similarly, because a landfill may be located in an agricultural zone, truck travel on rural roads is implicit (fact-findings 9 and 13). Presumably the County could have adopted a zoning map or solid waste management plan that limited rubble landfills to certain locations along Route 301 (fact-finding 12), but it did not do so.

The Board’s fact-findings 4, 10, and 11 appropriately might be called human frailty reasons, ie., that the checker may not check and the trackers may not track. There is no basis for concluding that the independent checker or DCRCo’s employees engaged to work at the Site will be less reliable than if they were engaged to work at a landfill located elsewhere. The appellees’ real estate expert demonstrated that residential property located adjacent to a landfill is less valuable than property that is not (fact-finding 6). The appellees’ expert, ⁴⁸⁶ however, presented no evidence that property values would be more adversely affected by a landfill at the Site than would the value of properties adjacent to or in the vicinity of a landfill elsewhere in the zone.

Indeed, when one considers that the properties in the neighborhood are already adversely affected by high voltage electrical transmission lines and their supporting towers, as well as by railroad tracks, any decline in value that the proposed landfill causes at the Site would seem to be less than that near a landfill at some other location. For the foregoing reasons we hold that fact-findings 1, 2, 4, 6, 9, 10, 11, and 13 are not candidates for possibly satisfying the Schultz test. Recognizing that there must be substantial evidence under the Schultz v. Pritts rule to sustain the denial of the conditional use, Protestants select for emphasis the aspects set forth below: “There were four separate and independent bases for the Board’s finding the impact of this proposed rubble fill on adjoining and surrounding properties unique and different in kind or degree from that inherently associated with such a use: First, the uniqueness of the fishery aspects of Unicorn Branch and Unicorn Lake [fact-findings 7, 8, and 16]; Second, the underlying thinness of the clay strata between the Columbia and the Aquia aquifer below the proposed site [fact-findings 7, 8, and 16]; Thirdly, the uniqueness and special impacts of two landfill operations on the same road in the same community [fact-findings 5 and 15]; and finally, the impact of truck traffic upon the narrow roads accessing the subject site as opposed to a location on a major highway which would have less of an impact [fact-findings 3, 9,13, and 14].” Appellees’ first and second supporting reasons, involving Unicorn Branch, Unicorn Lake, and the aquifers may be considered together. Appellees, by opinion testimony, undertook to show that leachate contamination of groundwater, leachate contamination of surface water, and thermal pollution adversely would affect fish in the Unicorn waters and drinking ⁴⁸⁷ water in the aquifers.

Applicant argues, correctly in our view, that the Schultz requirement is not satisfied simply by identifying some unique characteristic of the neighborhood. In order for a unique characteristic of the neighborhood to support the denial of a conditional use it is necessary that the ordinary adverse effects of the conditional use be greater at the location in question, because of the unique characteristics of that location’s neighborhood, than would be the case if the use were located elsewhere in the zone. Applicant submits that, although Unicorn Branch and Unicom Lake, with their aquatic life, may be unique features of the neighborhood, there is a lack of substantial evidence that the proposed landfill will have an adverse effect on the Unicom waters. Applicant also argues that issues concerning whether a landfill would pollute surface and groundwater are to be decided by MDE in the State permit process, and not in a zoning case.

Appellees respond that Envir § 9-210, see note 2, supra, which brings the State permit process to a halt until a county advises MDE that zoning and land use requirements have been met, demonstrates that there is no preemption of the County’s role. Further, appellees submit that § 18 — 1— 132(d)(7)(vi)6 of the County Code injects environmental considerations into the zoning process.

VI

Evidentiary Sufficiency — Surface and Groundwater (Fact-findings 7, 8, and 16) The Protestants produced Richard D. Klein (Klein) as their environmental science expert witness. Klein was employed by DNR from 1969 to 1987, where he rose from the position of a conservation aide to that of manager of the Save Our Streams Program. Thereafter, he has rendered consulting services through his corporation, Community & Environmental Defense Services. He holds no degrees or certifications as a hydrologist, chemist, biologist, civil engineer, or sanitary scientist.

Klein opined that there were possible adverse effects on Unicorn Branch and Unicom Lake from the proposed rubble ⁴⁸⁸ landfill. He pointed out that Unicorn Branch has an abundance and diversity of fish, and in particular, it is the only stream on the Eastern Shore, south of Cecil County, in which brown trout are found throughout the year. Moreover, the DNR fish hatchery at Unicorn Lake is one of only two warm water fish hatcheries in Maryland. In addition, the State built, at considerable expense, a fish ladder at the dam forming Unicorn Lake.

Klein presented a worst case scenario of the metal content of leachate. He admittedly used, as the metal concentration in leachate, the highest concentration that he could find for a given metal, as reported in data that had been collected at forty rubble landfills. 7 The maximum levels presented by Klein exceed MDE standards for the protection of aquatic life. The landfills on whose data Klein relied were unlined landfills. 8 Because a manufacturer of synthetic liners and of closing caps for cells guarantees the life of the materials for only thirty years, Klein opined that, thirty or more years in the future, leachate containing worst case concentrations of metals would work its way to Unicorn Branch and Lake. He stated that, “[a]t that point [in time], this entire toxic brew is going to be released into the' adjoining waterways.” It is well established that “ ‘an expert’s opinion is of no greater probative value than the soundness of his reasons given therefor will warrant.’ ” Surkovich v. Doub, 258 Md. ⁴⁸⁹ 263, 272, 265 A.2d 447, 451 (1970) (quoting Miller v. Abrahams, 239 Md. 263, 273 , 211 A.2d 309, 314 (1965)).

An expert opinion “derives its probative force from the facts on which it is predicated, and these must be legally sufficient to sustain the opinion of the expert.” State Health Dep’t v. Walker, 238 Md. 512, 520 , 209 A.2d 555, 559 (1965). See also Jones v. State, 343 Md. 448 , 682 A.2d 248 (1996) (expert testimony by police officer that he was able to identify crack cocaine by touch was nothing more than a conclusion); Beatty v. Trailmaster Prods., Inc., 330 Md. 726 , 625 A.2d 1005 (1993) (holding inadmissible auto reconstruction expert’s opinion that height of bumper on truck was unreasonably dangerous, where height complied with industry standards and no scientific studies or emerging consensus supported opinion); Wood v. Toyota Motor Corp., 134 Md.App. 512 , 760 A.2d 315 (trial judge did not err in excluding expert testimony regarding the danger of air bags because the expert “never explained how the data upon which he relied led him to the conclusion that the size of the vent holes caused appellant’s injuries”), cert. denied, 362 Md. 189 , 763 A.2d 735 (2000); Skrabak v. Skrabak, 108 Md.App. 633 , 673 A.2d 732 (expert’s opinion regarding goodwill value of a corporation based on facts that did not support opinion and on “guesswork and speculation”), cert. denied, 342 Md. 584 , 678 A.2d 1048 (1996). See also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 , 119 S.Ct. 1167 , 143 L.Ed.2d 238 (1999); General Elec. Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512 , 139 L.Ed.2d 508 (1997); Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993).

Klein’s opinion is not substantial evidence that metals contained in leachate will adversely affect the Unicom waters. Klein’s opinion necessarily rests on the following assumptions: ■ — At some time more than thirty years after the closing of a cell, there will be a total failure of the synthetic liner and cover and that the second, geosynthetic clay (bentonite), lining of the cell bottom either will not have been installed or will suffer, concurrently, a catastrophic failure of un ⁴⁹⁰ known origin, inasmuch as Klein gives no protective effect to the second liner in his assumption. 9 —The failure of the cover will not be minor, i.e., holes that would be capable of repair. —The failure of the liner will not be minor, will not be detected by the monitoring system, and leakage of leachate will not be reduced by the collection system to insignificant levels. —During the operational life of a cell, i.e., when the working face of the cell is uncovered, water passing through the cell to the leachate collection system will not have eliminated the most easily removable of the metal particles in the rubble. —The maximum concentrations of metals at unlined landfills utilized in Klein’s opinion are comparable to the levels to be anticipated thirty or more years in the future at the subject rubble fill with its double lining and leachate collection system. —The leachate would work its way as groundwater to Unicorn Branch and Lake, although the unlined municipal solid waste landfill, now closed, which is adjacent to the Unicorn waters, has had no adverse effect on their unique qualities. —The more than 1,000 foot journey of the leachate from the Site to the Unicorn waters will occur without undergoing natural attenuation processes, including dilution and absorption. Klein’s opinion that leachate will adversely affect Unicom waters is speculation. Klein also presented the Board with a scenario, adversely affecting the Unicorn waters, that might take place before the hypothetical total failure of the plastic liners and covers would occur.

Hypothesizing a 1.3 inch rainfall, he opined that a discharge of 8636 cubic feet of stormwater from 12.2 acres of ⁴⁹¹ the Site draining into the westernmost stormwater management basin could reach a temperature of 97°F and that the surfaces of Glanding and Hackett Corner Roads would produce a runoff at 83°F. The combined surface waters, in the witness’s opinion, would cause the temperature of Unicorn Branch to rise to 72.8°F, which is above the 68°F that is the optimum temperature for trout. The 97°F temperature was based on the maximum summertime measurement of water in three highway ponds in Anne Arundel County that are designed to discharge completely within six, twelve, and twenty-four hours. The western storm-water management basin at the Site, however, will discharge only during high volume rain storms when the temperature of the runoff will be the same as the rainfall temperature. Otherwise, the draw down from that basin will be over two to seven days, thus reducing volume discharged at any one time.

Further, Klein acknowledged that his road runoff calculation is premised upon 7.76 acres of impervious road surface, a figure which he also acknowledged included the preexisting roads, and not simply the additional surface that would result from the widening to accommodate truck traffic generated by the proposed landfill. On cross-examination the witness stated that 5.5 or 6 acres of surface area of the 7.76 acres of road utilized by him in his calculation represented the existing roads. Under Schultz v. Pritts a preexisting road is not attributable to the proposed conditional use. Although Klein stated that he could calculate the revised runoff using only the area of the additional surface of the widenings, we have not been directed to that evidence and have not independently found it in this voluminous record.

Nor have we been directed to, or found, a revised temperature impact on Unicorn Branch, based on the revised road surface runoff. Klein also opined that the temperature of Unicorn Branch could reach 79.2°F, well above the lethal temperature for trout of 75°F. This latter scenario assumed an increase in the volume of the discharge from the western stormwater management basin from 8,636 cubic feet to 47,829 cubic feet. ⁴⁹² In order to increase the runoff from the Site that he determined drained into the westernmost stormwater basin, and thereby produce a trout killing temperature in Unicorn Branch, Klein assumed that the same 12.2 acres of the Site would be covered by an impermeable (but not yet disintegrated) cap. In other words, Klein assumed that the plastic cap would be placed over 12.2 acres of filled cells, but that the required two feet of soil would not have been placed over the plastic cap when the assumed 1.3 inch rain fell. COMAR 26.04.07.18H requires that “[a] uniform compacted layer of earthen material not less than 2 feet in depth shall be placed over the final lift not later than 90 days following completion of that lift.” 10 The western cell area of the Site is the twenty-one acre area that will be divided into three separate cells.

Because the division is for efficiency of operation, each cell should be approximately seven acres. It is not reasonable to assume that one of the three cells would be 12.2 acres or larger and that the other two would be 4.4 acres or smaller. In order for Klein’s hypothetical to be realized, two cells, successively, would have to be filled, covered with a plastic cap, but never covered with earth. Since the estimated operational life of the entire four cell landfill is five to ten years, Klein’s scenario assumes that the first of the three western cells to be filled and covered with a plastic cap would remain exposed for better than a year, and that no soil cover would be applied until two cells had been filled.

No reasonable fact finder could conclude that an area of fully exposed plastic cap would ever