Sugarloaf Citizens' Ass'n v. Department of Environment

WILNER, Chief Judge. This appeal is the latest event in a long struggle by certain residents in the Dickerson area of Montgomery County, joined by a number of organizations, to prevent the county from proceeding with the construction of a “resource recovery facility” (RRF)—a power-generating solid waste incinerator. This phase involves the issuance of air quality construction and refuse disposal permits by the Maryland Department of the Environment (MDE), allowing construction to proceed. Appellants sought judicial review of the administrative action in the Circuit Court for Montgomery County.

That court dismissed their petitions upon a finding that none of the appellants had legal standing to contest the permits. We are concerned here with the correctness of that finding, in particular whether the court erred in determining that (1) the Audubon Naturalist Society, the Izaac Walton League, and the individual appellants lacked common law standing, and (2) all appellants lacked standing under the Maryland Environmental Standing Act (MESA). We find no error in the court’s rulings and shall affirm. BACKGROUND Md.Code Envir. art., § 9-503 requires each county to adopt a 10-year plan dealing, among other things, with solid waste acceptance facilities and disposal systems.

The plan must provide for facilities that are adequate to treat, recover, or dispose of solid waste in a manner consistent with State law relating to air and water pollution and land use. Id. at § 9-505(a)(5). Pursuant to that requirement, discussions, planning, and hearings with respect to an RRF began in 1982. Plans to construct such a facility at the Dickerson site commenced in 1987.

The site chosen is a 35-acre tract purchased by the county from Potomac Electric Power Company (PEP-CO). It is more or less in the middle of a much larger tract, of about 1,000 acres, owned by PEPCO, upon which that utility presently operates two coal-fired electric generating plants. ²⁷³ In 1988, the county and the North East Maryland Waste Disposal Authority applied to MDE for a Prevention of Significant Deterioration (PSD) approval. Three of the appellants in this appeal—-Sugarloaf Citizens Association and two individual landowners—protested and insisted that MDE conduct a contested case (adjudicatory) hearing under the Administrative Procedure Act before ruling on the application. When MDE rejected that demand in favor of a more general public comment hearing, those appellants filed an action in the Circuit Court for Baltimore City, seeking a declaratory judgment that an adjudicatory hearing was necessary.

The appellants lost that case. In Sugarloaf Citizens Association v. Northeast Waste Disposal, 323 Md. 641 , 594 A.2d 1115 (1991), the Court held that, although an adjudicatory hearing would, on demand, be required in connection with an application for a construction permit, one was not required with respect to a PSD approval. In light of that conclusion, the Court declined to consider whether the individual appellants lacked standing to bring the declaratory judgment action. Id. at 650-51 n. 6, 594 A.2d 1115 .

While the Sugarloaf case was pending, the county applied for, and MDE decided to issue, air quality construction and refuse disposal permits. The appellants then contesting the PSD permit demanded an adjudicatory hearing on those permits as well. Although initially of the view that adjudicatory hearings were not required with respect to any of the permits, when the Sugarloaf Opinion was filed in July, 1991, and a motion to reconsider was denied the following September, the Secretary of MDE, acting pursuant to Md.Code State Gov’t, art., § 10-207, delegated to the Office of Administrative Hearings the authority to conduct an adjudicatory hearing and prepare a recommended decision on the proposed air quality construction and refuse disposal permits. 1 ²⁷⁴ The county, which had challenged the protestants’ standing in the Sugarloaf case, also challenged their standing with respect to the construction and refuse disposal permits. Aware that standing would likely be an issue, the Secretary stated in his letter of delegation: “This referral does not reflect a decision by me or MDE that the association or the individual property owners have standing to participate in the hearing.

I anticipate that standing will be an issue at the hearing. It is my desire, therefore, that the administrative law judge entertain arguments on the issue of standing and make findings for me to consider.” A proper methodology for resolving the standing issues was established prior to the administrative hearing. The county continued to maintain that neither the three original protestants nor the additional organizations and individual landowners who sought to become parties had proper standing. To avoid the danger of a remand if the protestants were excluded from participation and a reviewing court were to conclude that they had standing, the county withdrew any objection to their participating at the administrative level, provided that findings as to their standing were made at the conclusion of the hearing.

The hearing, which consumed 15 days, was conducted on that basis; appellants were permitted to testify and produce evidence on all issues, including those relating to their standing. On June 17, 1992, Administrative Law Judge Suzanne S. Wagner filed a comprehensive 170-page proposed decision and order finding that (1) appellants had failed to establish standing under common law or statutory authority, and (2) the permits should issue. In accordance with the Secretary’s request, the ALJ made specific findings regarding the standing of each of the appellants. Statutory standing under the Environmental Standing Act was rejected upon a finding that the appellants were not challenging a failure by MDE to perform a ministerial duty.

See Md.Code Nat.Res. art., § 1-503(b). ²⁷⁵ With respect to common law standing on the part of the individual landowners, the ALJ found that they (1) owned property “in proximity to” the proposed RRF, (2) demonstrated that they use and enjoy, eat food grown on, and derive income from activities conducted on their respective properties, (3) were concerned about the possibility of adverse impact from the RRF’s emissions on the use, enjoyment, and value of their properties, but (4) “did not establish, with any degree of probability or specificity, the kind, quality, or extent of any harm they perceived.” Three of the organizational protestants (Sugarloaf Citizens Association, Dickerson-Beallsville Coalition, and Audubon Naturalist Society), she concluded, failed to demonstrate that they owned any property “proximate to the proposed RRF which might be harmed as the result of the construction of the proposed RRF.” The fourth organizational protestant (Izaac Walton League) owned a 360-acre tract four miles from the site and, though concerned about the possibility of adverse impact from RRF emissions, “failed to establish, with any probability or specificity the kind, quality or extent of any harm they perceived as the result of construction of the proposed RRF.” In further discussion of the standing issues, the ALJ stated that, while the individual protestants expressed “genuine generalized concerns about possible adverse consequences to the Dickerson area as the result of emissions from the proposed RRF,” none of them presented “any specific evidence related to his or her perceived harm from the facility.” She continued: “Each feared an adverse impact on local produce, but no evidence was produced to substantiate what damage would occur, what the present level of pollutants is in local produce, or what the expected level would be as the result of emissions from the proposed RRF.” Addressing allegations of reduced property values, the ALJ found: “All of the individual Plaintiffs expressed their concern that their property values might diminish as the result of ²⁷⁶ the proposed RRF. However, most of the Plaintiffs bought their properties in the past several years with full knowledge of the PEPCO facility, and some bought their properties after planning for the proposed RRF was already public knowledge. None of the individual Plaintiffs produced any specific evidence that his or her property values had decreased. They stated that properties were difficult to sell in the area, but also that property values in general have fallen significantly in the past few years as a result of the recession.

No one produced any evidence to demonstrate that the proposed RRF has or will decrease their property value, or to what extent. The concerns expressed by the individual Plaintiffs are identical to the concerns of the public generally.” (Emphasis added.) Similar findings were made with respect to the organizational protestants. We are informed by appellants that extensive exceptions were filed to the ALJ’s proposed decision and order, although none of them are in the record extract. Following a review of the record and consideration of argument, MDE, through the Secretary’s Final Decision Maker, affirmed, for purposes of this appeal, the findings and conclusions of the ALJ.

Specifically, MDE, in its Final Decision and Order, affirmed the ALJ’s conclusion that none of the appellants had established common law standing. As we indicated, appellants sought judicial review of the Final Decision and Order in the Circuit Court for Montgomery County. The court dismissed that action, however, upon a finding that none of the appellants had standing under either the common law or the Environmental Standing Act. This appeal followed.

ENVIRONMENTAL STANDING ACT The issue of appellants’ standing under the Environmental Standing Act need not detain us long. Although that Act relaxed common law standing requirements in certain circumstances, the Court of Appeals made clear in Medical ²⁷⁷ Waste v. Maryland Waste, 327 Md. 596, 618 , 612 A.2d 241 (1992), that the Act “does not broaden standing requirements in actions for direct judicial review of administrative proceedings.” This is precisely that type of action; hence, no special statutory standing. COMMON LAW STANDING To have standing under