Maryland Waste Coalition, Inc. v. Maryland Department of Environment

ROSALYN B. BELL, Judge. This case arises from a decision of one of the appellees, the Maryland Department of the Environment (Department), to issue two permits to appellee, Medical Waste Associates, Inc. (Associates), to construct and operate an infectious medical waste incinerator in the Hawkins Point area of Baltimore City. Appellant, Maryland Waste Coali ⁵⁴⁷ tion, Inc. (Coalition), an environmental organization, whose stated purpose is to protect Maryland’s environment, appealed that decision to the Circuit Court for Baltimore City. The Coalition filed two separate actions.

On September 18, 1989, the Coalition filed an appeal under Md.Envt.Code Ann. § 9-263 (1982, 1987 Repl.Vol.), which provides for judicial review of an “order, rule or regulation.” In addition, the Coalition filed an appeal under Rule B2, which provides for appeals, in the form of an application for a review, from “any final action of an administrative agency----” Rule Bl. The circuit court granted the Associates’ Motion to Consolidate the two appeals on October 11, 1989. On October 23, 1989, the circuit court granted the Associates’ Motion to Intervene in the B-Rule appeal and granted both the Associates’ and the Department’s Motions to Dismiss. In the interest of completeness, we observe that the transcript of the proceedings of October 23, 1989 indicates that the case was dismissed for lack of subject matter jurisdiction.

The trial judge, however, suggested his ruling was also based on his view that the Coalition lacked standing: “THE COURT: Counsel, there is one order entitled Order Dismissing Case and it reads as follows: After consideration of the arguments of counsel it is hereby ordered that this case be dismissed because the Court finds that the appeal is not authorized by law and the Court lacks jurisdiction over the subject matter of the case. * sjs :j« # £ # “The other order is in the other case which reads as follows: After consideration of the arguments of counsel it is hereby ordered that this case be dismissed because the Court finds that it lacks jurisdiction — counsel, I would have preferred orders more definitive on the standing issue. I guess dismissing over subject matter jurisdiction is basically the same. I had wanted something more definitive but — it will have the same legal operative effect.” ⁵⁴⁸ We disagree with any implication in the trial judge’s statement that dismissing a case for lack of subject matter jurisdiction is “basically the same” as dismissing a case for lack of standing. Although the effect of the dismissal, barring the plaintiff’s cause of action, is the same, the issues on appeal are not.

Standing is concerned with whether the parties have the right to bring suit. Subject matter jurisdiction is concerned with whether the court has the power to hear a case. Nevertheless, although the court explicitly ruled that it lacked jurisdiction to hear the case, the court implicitly ruled that the Coalition lacked standing to obtain judicial review. Additionally, the parties argued the issue of standing at some length.

In view of the court’s comments and the interrelatedness of jurisdiction and standing, we will deal with both issues. On appeal, the Coalition contends: —It may obtain judicial review of the issuance of the refuse disposal permit under Md.Envt.Code Ann. § 9-263. —It may obtain judicial review of the issuance of the refuse disposal permit and air management permit under Maryland’s Administrative Procedure Act (MAPA). —It has' common law standing to maintain this appeal. —Maryland courts should adopt the position of federal courts regarding environmental standing. We disagree. We will, however, vacate the judgment of the circuit court and remand for further proceedings.

We explain. JUDICIAL REVIEW UNDER § 9-263 The Coalition argues that under § 9-263 of the Environmental Law Article it is entitled to obtain judicial review of the issuance of the refuse disposal permit. In relevant part, § 9-263 provides: “Any county, municipality, legally constituted water, sewerage or sanitary district, institution, or person dissatisfied with any order, rule, or regulation of the Secretary under this subtitle may commence, within 10 ⁵⁴⁹ days after the service of the order, rule, or regulation, an action in the circuit court for any county to vacate and set aside the order, rule, or regulation on the ground that the order, rule, or regulation is unlawful, or unreasonable, or that the order is not necessary for the protection of the public health or comfort, in which action a copy of the complaint shall be served with the summons.” (Emphasis added.) We agree with the Coalition that § 9-263 establishes three pertinent criteria for judicial review of its action: (1) an institution or person must be dissatisfied (2) with an order, rule or regulation of the Secretary of the Department and (3) the action must commence within 10 days after the service of the order, rule or regulation. We disagree, however, with the Coalition’s claim that it meets all three of these criteria.

Specifically, we hold that the issuance of a permit is not the equivalent of an “order, rule or regulation” as set forth in § 9-263. The Coalition argues that the issuance of a permit is an order and thus the circuit court has jurisdiction to review the Department’s action. Although the Coalition concedes that the statute does not define “order,” it maintains that, by implication, Williamsport v. Washington County Sanitary District, 247 Md. 326 , 231 A.2d 40 (1967), Jett v. Department of the Environment, 77 Md.App. 503 , 551 A.2d 139 (1989), and Howard County v. Davidsonville Area Civic Association, 72 Md.App. 19 , 527 A.2d 772 , cert. denied, 311 Md. 286 , 533 A.2d 1308 (1987), have held that the issuance of a permit is an order of the Secretary. We disagree.

In Williamsport , the focus of the dispute was a contract between the Town of Williamsport (Town) and the Washington County Sanitary District (District). The Court of Appeals noted that “[t]he facts of the case have all been stipulated.” Williamsport, 247 Md. at 328 , 231 A.2d 40 . The Court observed that, despite the Town’s request for a hearing before the Department of Health prior to the issuance of the permit, the permit was issued without such a ⁵⁵⁰ hearing. The Court noted that the Town appealed the decision of the Department to the circuit court “presumably pursuant to the authority of Maryland Code Article 43, section 404 (1965 Repl.Vol.) [now Md.Envt.Code Ann. § 9-263 (1987) ].” Williamsport, 247 Md. at 328 , 231 A.2d 40 .

The circuit court remanded the question of the issuance of the permit to the Department for further consideration. Following the remand, the Town and the District reached an agreement which addressed the Town’s concerns. The Town subsequently sought to have the contract declared void. Williamsport, 247 Md. at 329-30 , 231 A.2d 40 .

The circuit court ruled that the Town was bound by the contract. Williamsport, 247 Md. at 327 , 231 A.2d 40 . It was this circuit court ruling that was at issue in Williamsport . According to the Coalition, the fact that the Court presumed that the Town’s appeal from the Department’s original decision was pursuant to Md.Code Ann. Art. 43, § 404 “is a strong indicator of the Court’s view that the definition of an ‘order’ is sufficiently broad to encompass a permit.” We disagree.

The Court of Appeals simply adopted the parties’ presumption. Nor do we agree with the Coalition that it is “highly significant that the Court of Appeals did not indicate any disagreement with the parties’ characterization of the basis for the appeal.” The basis for appellate review was irrelevant to the issue before the Court in this case. Thus, Williamsport has no precedential value regarding the issues in the present case. Jett is equally inapposite to the case at bar.

The facts of Jett are as follows: Mr. Jett owned a 222-acre Christmas tree farm and had been receiving “stumps and land clearing debris from hauling contractors to fill in low-lying areas of the farm to create level ground to accommodate the growing of trees.” Jett, 77 Md.App. at 505 , 551 A.2d 139 . The precursor to the Department, the Maryland Department of Health and Mental Hygiene, then determined that the receipt of the stumps required a permit under Md.HealthEnvtl.Code Ann. § 9-210 (1982, 1986 Cum.Supp.) (now Md. ⁵⁵¹ Envt.Code Ann. § 9-204 (1987)). After negotiations, the Department issued a permit for such activity on a 4.53-acre portion of the farm. Thereafter, Jett requested a modification of the permit because the permit limited the hours of operation and the amount of traffic to the landfill.

At a hearing held on the matter, Jett’s position was that the limitations applied only to the 4.53-acre portion of his farm the permit covered. The Department ruled and the trial court affirmed, however, that the permit applied to the entire farm and restricted disposal operations to the 4.53-acre portion with all the attendant permit restrictions. Jett appealed from this ruling. Jett, 77 Md.App. at 505-06 , 551 A.2d 139 .

Unfortunately, the decision does not address how Mr. Jett obtained circuit court review. Nonetheless, the Coalition contends that, since the Associates’ and Jett’s permits were issued under the same statutory authority (§ 9-204) and Jett appealed to the circuit court without eliciting any comment from this Court concerning jurisdiction, the circuit court had subject matter jurisdiction. We disagree. As was the case in Williamsport , jurisdiction was not at issue in Jett .

As both the Department and the Associates observe, Jett, as the applicant for a permit variance, was entitled to, and availed himself of, an adjudicatory hearing. Because Jett was entitled to an adjudicatory hearing, judicial review may have been appropriate under MAPA. See text infra. This Court’s lack of consideration of the jurisdictional issue in Jett is not tantamount to approval of the procedure used in that case.

The third case the Coalition cites to support its position that the issuance of a permit is an order for purposes of § 9-263 is Howard County v. Davidsonville Area Civic Association. In Howard County , the facts clearly state that appellees sought and obtained an adjudicatory hearing on the renewal of a water discharge permit. Howard County, 72 Md.App. at 22 , 527 A.2d 772 . After a hearing, the hearing examiner issued a proposed opinion, finding that the permit should be issued as suggested.

Subse ⁵⁵² quently, the agency considered written exceptions and oral argument before issuing a “Final Order” approving the permit. Howard County, 72 Md.App. at 22 , 527 A.2d 772 . The civic association appealed this order to the circuit court. As the Department and the Associates note, however, water discharge permits are regulated under a completely different scheme (now Md.Envt.Code Ann. § 9-322 et seq.

(1987)), which explicitly includes the opportunity for interested persons to request an adjudicatory hearing after the final determination is published, or, if it is not published, after the public hearing. The request for the adjudicatory hearing must contain a “statement of the specific rights, duties, or privileges of the requestor which are adversely affected by the final determination.” The Department may grant or deny the request or limit the issues to be heard at the hearing. The adjudicatory hearing must be conducted in accordance with MAPA procedures. See COMAR 26.08.04.-01G(9).

The Coalition’s claim that our characterization of the permit in Howard County as a final order is equally applicable to the case at bar is mistaken. Howard County involved a substantially different factual and legal scenario where jurisdiction, that was clearly proper under both the B Rules and the Maryland Administrative Procedure Act, was not at issue and § 9-263 was not mentioned anywhere in the opinion. As previously noted, “order,” as used in § 9-263, is not defined in the code or case law. Other sources define the word “order” as: “An authoritative command (court order).

Mandate, decree, direction, dictate, fiat, ukase, instruction, prescription, injunction, pronouncement, demand, rule, commandment, directive, edict, regulation, ultimatum, behest, manifesto, declaration, imperative, ordinance.” West’s Legal Thesaurus/Dictionary, (Special Deluxe Edition, 1986). ⁵⁵³ “[A] specific rule, regulation, or authoritative direction: COMMAND.” Webster’s Ninth New Collegiate Dictionary (1985). “A mandate; precept; command or direction authoritatively given; rule or regulation____ Direction of a court or judge made or entered in writing, and not included in a judgment.” Black’s Law Dictionary (5th ed. 1979). “A command or direction____ The determination of an administrative body or agency.” Ballentine’s Law Dictionary (3d ed. 1969). In contrast, these sources define a permit as: “A document that grants a person the right to do something (work permit). License, authorization, permission, consent, authority, sanction, certification, franchise, patent, commission, approbation, endorsement, carte blanche, leave, ticket, privilege.” West’s Legal Thesaurus/Dictionary, (Special Deluxe Edition, 1986). “[A] written warrant or license granted by one having authority.” Webster’s Ninth New Collegiate Dictionary (1985). “[A]ny document which grants a person the right to do something. A license or grant of authority to do a thing____ A written license or warrant, issued by a person in authority, empowering the grantee to do some act not forbidden by law, but not allowable without such authority.” Black’s Law Dictionary (5th ed. 1979). “A permission granted in writing, such as a building permit.

A license.” Ballentine’s Law Dictionary (3d ed. 1969). As these sources make clear, an order and a permit are not the same nor does the term “order” include “permit.” An order is a command of some authority which cannot be ignored. A permit is merely a grant of authority to do a ⁵⁵⁴ specific act. The permittee need not do the specified act, but is allowed to do so.

Moreover, the issuance of an order is adjudicatory in nature, while the issuance of a permit is ministerial or administrative in nature. We hold, therefore, that the issuance