State, Department of Health & Mental Hygiene v. Congoleum Corp.

Lowe, J., delivered the opinion of the Court. The Congoleum Corporation, located in the vicinity of Finksburg, Maryland, has, since 1967, unsuccessfully fought an infestation of psychoda flies which breed in the trickling filters Congoleum has provided for treatment of its waste waters prior to their discharge into the Patapsco River, one-half mile away. The waste water treatment consists of two lagoons, two trickling filters and two clarifiers. Although the gnat-like creatures are annoying, especially when in substantial numbers, they are not known to be detrimental to health.

The flies do not appear to have excessively annoyed the employees of Congoleum; however, complaints of nearby residents appear to have been in proportion to the vigor of the Company’s attempts to control the flies, which may be wind-carried well beyond their limited flight potential. Increased complaints in 1978 brought about intensified efforts, including the retention of a licensed exterminating firm recommended by a professional entomologist. In that year, the State Department of Health and Mental Hygiene (which had contributed very little assistance in controlling the problem, save exerting increasing pressure upon the Company) ordered the Company: 1. to remove vegetation in and around the filters, 2. retain the licensed exterminator, 3. submit for approval any pesticide to be sprayed in the trickling filters, and 4. submit an annual and comprehensive program to control the flies; then comply with its provisions. Congoleum has complied with the first two of the requirements, but there the lines were drawn.

It requested an administrative hearing, at which the order was upheld by the Hearing Officer, and then unsuccessfully appealed the ²⁶⁰ order to the Board of Review. On appeal to the Circuit Court for Carroll County, however, Congoleum succeeded in convincing the court that, because "there is no danger to the public health nor is there any [allegation 1 ] that the public waters are being polluted,” the portion of the order directing the submission of, and compliance with, an annual pest control plan was invalid. With regard to the requirement that the Company receive approval from the Department’s Toxic Substances Control Program of any proposed pesticide before spraying the trickling filters, the trial judge reasoned implicitly that because the authority to control pesticides was delegated to the Secretary of Agriculture, such delegation preempted any control by the Health Department. The Board of Review had adopted the findings and reasoning of the Hearing Officer, as had the Secretary of the department.

That report initially concluded that there was sufficient evidence to conclude that the fly infestation in the communities neighboring Congoleum emanated from the trickling filter waste water disposal system of that Company. "The Administration has established that the psychoda flies breed at the Company’s trickling filters and that there are psychoda flies in the neighboring communities. There was no evidence presented by the appellant to indicate the location of any other sources of the psychoda fly infestation other than their own trickling filters. Although the psychoda flies can only travel a short distance, the same can be windblown.

The testimony of Dr. Singer indicated that she believed that the Company’s trickling filters were the primary source for the psychoda fly infestation in the Cedarhurst-Finksburg area. Her belief was based on County and DHMH investigations of possible ²⁶¹ alternative breeding places for flies in and around the area. It is concluded that these investigations were sufficient to eliminate the possibility of any alternative source. It is further concluded that the Administration has met the burden of proof absence [sic] any rebuttable evidence presented by the appellant to indicate that the fly infestation in the communities surrounding the Company’s property originated from its trickling filters.” Because the judge did not take issue with these findings, and even predicated his opinion on the presupposition that such facts amounted to substantial factual evidence to support the conclusions reached by the Board, we will not address the sufficiency of evidence issue, except to note that it meets the required test of being "believed by the factfinder,” which it obviously was.

The trial judge appears to have held that the opinion of the Board of Review was affected by error of law and that the order was in excess of the authority of the Secretary. Md. Ann. Code (1957,1978 Repl. Vol., 1981 Supp.) Art. 41, § 255 (f) (2) and (4). According to the judge, in order for the department to have authority to compel pest control program submission and compliance relating to the waste water disposal system, there must be 1) some public health (as opposed to comfort) concern which must be 2) directly related to the purity of State waters.

"The Secretary of Health and Mental Hygiene takes the position that, because the psychoda flies breed in the corporation’s trickling filters and have been determined by the Secretary to be a source of public discomfort he is empowered by Sections 388 and 397 [Md. Code, Art. 43] to issue the Order. In our opinion, the reliance on the word 'comfort’ in the statute is overly broad. As we noted supra, there is no danger to the public health nor is there any delegation [sic allegation]. We have carefully reviewed the enabling Statute, Chapter 810, Sec ²⁶² tion 2 and 11 Laws of Maryland 1914, and the Amendments thereto.

We believe that there must be some reasonable relationship between the Order passed by the Secretary and the purity of the waters of the State. We find no such relationship in this case.” "comfort” Appellee, picking up on the judge’s observation as to the breadth of the definition of the word "comfort”, points out that: "The American Heritage Dictionary of the English Language (1969 Edition) attests to the breadth of meaning associated with the word 'comfort’: '-n. 1. A state of ease or well-being. 2. Relief; consolation; solace. 3.

Help; assistance. 4. One that brings ease. 5. Capacity to give physical ease and well-being: enjoying the comfort of his favorite chair.’ ” It appears, however, with but brief perusal, that the dictionary it quoted has relatively few words without more than one definition. Words of ordinary meaning used in a statute are assumed to mean that which it is generally intended to convey.

John McShain, Inc. v. State, 287 Md. 297, 301 (1980). Few, if any, of us understand the term "comfort” to relate exclusively to a "favorite chair”, as employed in the example appellee provided from the fifth dictionary definition. Common sense dictates that comfort relates to a state of ease or well-being and it is not difficult to determine when that is prevalent, interrupted, or interefered with. Appellee further contends that we must apply the principle of noscitur a sociis, i.e., that" '[wjords are known by the company they keep,’ ” or ejusdem generis which reasons that general words are not to be construed in their widest extent but are to be held as applying only to persons or things ²⁶³ specifically mentioned. 2 But these rules obviously apply to specific words conjunctively intended to be joined to those general references.

It would be absurd to apply either doctrine to two words in the disjunctive. It is most unlikely that when the Legislature uses the terms "public health or comfort”, it meant to limit the department’s control over health matters that were uncomfortable, or comfort matters that were unhealthy. Statutes should never be read so as to make any of the words meaningless. Balto.

Bldg. & Constr. Trades v. Barnes, 290 Md. 9,15 (1981). To the contrary, the extended meaning following the disjunctive was obviously used to indicate that the authority of the department was broader than related to matters of public health only. It indicated that the Legislature was concerned with the public’s state of well-being, as well as its organic functioning.

But even if we were persuaded by the "words of a feather” doctrine as described by appellee, the legislative intent could be determined from a companion section of Art. 43. Section 391 provides that when any disposal system is inefficiently operated so as to be, or appear to become, "in any way a menace to health or comfort, or is creating a nuisance, it shall issue an order. ...” Applying appellee’s doctrine of interpretation to this section (which is also appropriate to the facts here) while the general term "comfort” might be restricted by the term "health”, it would here be explained as including a "nuisance”. Alas, however, one who can find no common understanding of the meanings of "comfort” would be equally nonplused by what might constitute a "nuisance.” We have no difficulty with either. Appellee carries its rationale even to a constitutional ²⁶⁴ dimension, arguing that "comfort” is an unconstitutionally vague term.

It contends that: "Although it is possible for a person to order his behavior to avoid affecting the public health, the public comfort (unless grounded in some concept of the public health) is so amorphous that a person of ordinary intelligence would likely find it impossible to know when his conduct might be deemed by the Secretary harmful to the public comfort.” "Words are granted their ordinary signification so as to construe the statute according to the natural import of the language used without resorting to subtle or forced interpretations for the purpose of extending or limiting its operation.” Schweitzer v. Brewer, 280 Md. 430, 438 (1977). We find it incredible that appellee would suggest that ordinary, intelligent people could not readily identify discomfort far more easily even than matters related to the more scientific connotation understood by the term "health”. We reject that constitutional argument (which was not decided below) as well and adhere to the Legislature’s admonition that this subtitle, "Water and/or Sewer Authorities”, be "liberally construed”. Md. Ann. Code (1957, 1980 Repl.

Vol.) Art. 43, §§ 465, 671. "waters of the State” But even assuming the judge had not been uncomfortable with the "overly broad” reliance the Secretary (and Board) placed on the word "comfort”, the essence of his opinion seems to be that "... there must be some reasonable relationship between the Order passed by the Secretary and the purity of the waters of the State.” This conclusion appears to have been drawn from the first sentence of the general powers section of the Health Article, Md. Ann. Code (1957, 1980 Repl. Vol.),