Sugarloaf Citizens' Ass'n v. Department of Environment

²⁷⁷ ELDRIDGE, Judge. The dispute in this case concerns the decision of the Maryland Department of the Environment (the Department) to issue two permits which authorized the construction of a solid waste incinerator near Sugarloaf Mountain in Dickerson, Maryland. A group comprised of local landowners, environmental organizations and citizens’ groups challenged the Department’s decision by filing in the Circuit Court for Montgomery County an action for judicial review under the Maryland Administrative Procedure Act, Maryland Code (1984, 1995 RepLVol.), § 10-222 of the State Government Article. 1 The circuit court dismissed the action on the ground that none of the plaintiffs had standing to seek review of the Department’s decision. The Court of Special Appeals affirmed.

Sugarloaf v. Dept. of Environment, 103 Md.App. 269 , 653 A.2d 506 (1995). We issued a writ of certiorari to determine whether the two courts below correctly interpreted and applied Maryland law regarding standing to maintain actions for judicial review of adjudicatory administrative decisions. Since we shall hold that both courts below erred with respect to standing, we shall also determine whether the administrative deci ²⁷⁸ sion should be upheld on the merits in light of the judicial review criteria set forth in the Administrative Procedure Act, § 10-222(h)(3) of the State Government Article. I. The Potomac Electric Power Company (PEPCO) owned a tract of land, containing over 1,000 acres, in the Dickerson area of Montgomery County, Maryland.

Two generating stations operated by PEPCO and auxiliary structures were on the tract. In 1987, PEPCO and Montgomery County entered into a transaction whereby the County purchased a 35-acre portion of the PEPCO tract to build a Resource Recovery Facility which would incinerate solid waste and would produce energy for sale to PEPCO. The facility was to be designed and constructed jointly by Montgomery County and the Northeast Maryland Waste Disposal Authority. Among the several plaintiffs who opposed the construction of this facility were the Buchanans, owners of approximately 234 acres of land immediately adjacent to the PEPCO tract.

About two hundred of the Buchanans’ acres are devoted to farming, while the remaining acreage constitute woodland. 2 The Buchanans’ property is located approximately 2,000 feet from the facility, and is separated from the PEPCO property by a narrow road. 3 In 1988 Montgomery County and the Northeast Maryland Waste Disposal Authority filed an application with the Department for a Prevention of Significant Deterioration (PSD) ²⁷⁹ permit, the first permit in the PSD permit process required by the federal Clean Air Act, 42 U.S.C. § 7401 et seq., the Maryland Air Quality Control statutes, Code (1982, 1996 Repl. Vol.), Title 2 of the Environment Article, and implemented by the Air Management Administration of the Maryland Department of the Environment. 4 The present case had its genesis in this Court’s opinion in Sugarloaf v. Waste Disposal, 323 Md. 641 , 594 A.2d 1115 (1991) (Sugarloaf I), where some of the present plaintiffs argued that they were entitled to a “contested case” administrative hearing on the application by the County and the Authority for the PSD approval permit. 5 In rejecting this argument, we held that, although a full contested case hearing was available upon an application for a construction permit, it was not available at the PSD approval stage. 6 The Court did not, however, determine whether any of the plaintiffs would have standing to seek judicial review of a Department decision ²⁸⁰ to issue a construction permit. Sugarloaf I, supra, 323 Md. at 650 -651 n. 6, 594 A.2d at 1119 n. 6. In light of this Court’s decision in Sugarloaf I, the Secretary of the Department delegated authority to the Office of Administrative Hearings, under Code (1984, 1995 Repl-Vol.), § 10-207 of the State Government Article, to hold a contested case hearing on the issue of whether a permit to construct should be issued to the applicants.

The Secretary later expanded this authority to include consideration of whether a .refuse disposal permit should be issued. 7 The Secretary also requested that the Administrative Law Judge (ALJ) “enter ²⁸¹ tain arguments on the issue of standing and make findings.” 8 Thereafter, Administrative Law Judge Suzanne S. Wagner conducted a 15-day hearing on these issues. After the conclusion of the hearing, the ALJ submitted an opinion containing extensive findings and conclusions as well as a proposed order. The ALJ concluded: (1) the construction and refuse disposal permit applications conformed to applicable federal and state law, and the permits should be issued; (2) all of the plaintiffs lacked standing either under the Maryland Environmental Standing Act, Code (1974, 1989 RepLVol., 1995 Cum.Supp.), §§ 1-501 through 1-508 of the Natural Resources Article, or under Maryland common law principles of standing embodied in the Administrative Procedure Act, § 10-222(a) of the State Government Article, to bring an action challenging the Department’s decision to issue the permits. 9 The Department adopted, without modification, ²⁸² the ALJ’s findings, conclusions, and proposed decision, and issued the two permits. The plaintiffs then brought the present action in the Circuit Court for Montgomery County, seeking judicial review of the final administrative decision.

The circuit court, in a brief order, dismissed the action on the ground that all of the plaintiffs lacked standing to seek judicial review of the administrative decision. The Court of Special Appeals, agreeing that the plaintiffs lacked standing, affirmed. Sugarloaf v. Dept. of Environment, supra, 103 Md.App. 269 , 653 A.2d 506 . In its opinion, the Court of Special Appeals indicated that the standing issue in the present case concerned the plaintiffs’ standing to bring a judicial review action in the circuit court and not their standing to be parties at the administrative hearing.

The intermediate appellate court thus stated ( 103 Md.App. at 277 , 653 A.2d at 510 ): “To have standing under common law principles to challenge a final order or decision of an administrative agency entered in a contested case, a person must show two things—that he was a party to the administrative proceeding and that he is ‘aggrieved’ by the agency’s order or decision. Medical Waste v. Maryland Waste, supra, 327 Md. 596 , 612 A.2d 241 (1992); Bailey v. Dep’t. of Public Safety, 333 Md. 397 , 635 A.2d 432 (1994). There is no question here that appellants were parties to the administrative proceeding; with the county’s acquiescence, they were permitted to participate in the proceeding, and they did participate by giving evidence and presenting argument. ²⁸³ The only question is whether any of them were ‘aggrieved,’ in the legal sense.” The Court of Special Appeals also pointed out that, in determining whether the plaintiffs were “aggrieved” by the final administrative decision and thus had standing to bring a judicial review action, a court may look to the evidence adduced at the administrative hearing as well as the pleadings and any evidence submitted to the circuit court. The Court of Special Appeals, however, went further and held that, in determining whether plaintiffs had standing to bring a judicial review action, the findings and conclusions of the ALJ regarding standing could be accepted if supported by substantial evidence.

The intermediate appellate court stated ( 103 Md. App. at 279 , 653 A.2d at 511 ): “Where ... the issue of standing has been litigated at the administrative level and findings based on substantial evidence have been made, the court need not relitigate that issue de novo." The Court of Special Appeals reviewed some of the evidence concerning the emission of “toxic and potentially harmful” substances from the facility, and a “study carried out for Montgomery County ... showing that more of these emissions will likely fall on [plaintiffs’] properties than on properties much farther from the site.” 103 Md.App. at 280 , 653 A.2d at 511 . The appellate court next pointed to the ALJ’s findings discounting certain evidence that the emissions “ ‘may have unacceptable levels of ... arsenic, mercury, dioxins, and PCB’s,’ ” and the ALJ’s findings that the emissions would be “insignificant or well within acceptable limits established by national health and environmental agencies.” 103 Md.App. at 281 , 653 A.2d at 512 . The Court of Special Appeals then concluded (ibid.): “As we have indicated, where the issue of standing has been fully litigated by the agency, parties do not achieve the status of aggrieved persons gratis, or based on bare allega ²⁸⁴ tions, or solely on evidence they have produced. A court is entitled to credit the agency’s findings if there is substantial evidence in the record as a whole to support them.

Here, there was.” The plaintiffs filed a petition for a writ of certiorari challenging the Court of Special Appeals’ decision on the standing issue, and we granted the petition. During oral argument the respondents took the position that, if this Court were to conclude that the decisions below concerning standing were erroneous, then this Court could decide the merits. 10 The petitioners, in their rebuttal argument, stated that they were “ready” to have the case decided on the merits but that they would like to brief the merits first. 11 Subsequently, this Court issued an order directing the parties to file supplemental briefs as to whether the Department’s decision “should be affirmed, reversed, modified, or the case remanded to the agency for further proceedings, in light of the judicial review ²⁸⁵ criteria set forth in the Administrative Procedure Act....” 12 Both sides have filed extensive supplemental briefs, with additional record extracts, on this issue.

II

A. The decisions below appear to reflect some confusion between standing to be a party at the administrative level and standing to maintain a judicial review action in the circuit court, as well as confusion over the appropriate roles of an administrative agency and a reviewing court with regard to each type of standing. The cases in this Court, and the language of the Administrative Procedure Act itself, § 10—222(a)(1) of the State Government Article, recognize a distinction between standing to be a party to an administrative proceeding and standing to bring an action in court for judicial review of an administrative decision. Thus, a person may properly be a ²⁸⁶ party at an agency hearing under Maryland’s “relatively lenient standards” for administrative standing but may not have standing in court to challenge an adverse agency decision. Maryland-Nat’l v. Smith, 333 Md. 3, 11 , 633 A.2d 855, 859 (1993).

See Medical Waste v. Maryland Waste, 327 Md. 596, 611-614 , 612 A.2d 241, 248-250 (1992) (organization was a party at the administrative proceeding but lacked standing to maintain a judicial review action.) The requirements for administrative standing under Maryland law are not very strict. Absent a statute or a reasonable regulation specifying criteria for administrative standing, one may become a party to an administrative proceeding rather easily. In holding that a particular individual was properly a party at an administrative hearing, Judge J. Dudley Digges for the Court in Morris v. Howard Res. & Dev. Corp., 278 Md. 417, 423 , 365 A.2d 34, 37 (1976), explained as follows: “He was present at the hearing before the Board, testified as a witness and made statements or arguments as to why the amendments to the zoning regulations should not be approved.

This is far greater participation than that previously determined sufficient to establish one as a party before an administrative agency. See, e.g., Baxter v. Montgomery County, 248 Md. 111, 113 , 235 A.2d 536 (1967) (per curiam) (submitting name in writing as a protestant); Bryniarski v. Montgomery Co., 247 Md. 137, 143 , 230 A.2d 289, 293-94 (1967) (testifying before agency); Hertelendy v. Montgomery Cty., 245 Md. 554, 567 , 226 A.2d 672, 680 (1967) (submitting into evidence letter of protest); DuBay v. Crane, 240 Md. 180, 184 , 213 A.2d 487, 489 (1965) (identifying self on agency record as a party to proceedings); Brashears v. Lindenbaum, 189 Md. 619, 628 , 56 A.2d 844, 849 (1948) (same). Bearing in mind that the format for proceedings before administrative agencies is intentionally designed to be informal so as to encourage citizen participation, we think that absent a reasonable agency or other regulation providing for a more formal method of becoming a party, anyone clearly identifying himself to the agency for the record as having an interest in the outcome of the ²⁸⁷ matter being considered by that agency, thereby becomes a party to the proceedings.” More recently, Judge McAuliffe for the Court in Maryland-Nat’l v. Smith, supra, 333 Md. at 10, 633 A.2d at 859 , summarized Maryland law relating to status as a party in administrative proceedings: “Morris and other cases of this Court indicate that the threshold for establishing oneself as a party before an administrative agency is indeed low. Although we have said that one’s presence at the hearing and testimony in favor of an asserted position is sufficient, id., we have also said that personal appearance and testimony at the hearing are not required.

Hertelendy v. Montgomery Cty., 245 Md. 554, 567 , 226 A.2d 672 (1967); Largo Civic Ass’n v. Pr. Geo’s Co., 21 Md.App. 76, 81 , 318 A.2d 834 (1974). In fact, it has been held to be sufficient that the hearing examiner considered the appellant to be a party, Northampton Corp. v. Pr. George’s Co., 21 Md.App. 625, 633-34 , 321 A.2d 204 , rev’d on other grounds, 273 Md. 93 , 327 A.2d 774 (1974), or that the appellant’s name was submitted to the Board of Appeals as one who would be aggrieved by an adverse decision.

Wright v. McCubbin, 260 Md. 11, 14 , 271 A.2d 365 (1970). See also Baxter v. Montgomery County, 248 Md. 111, 113 , 235 A.2d 536 (1967) (submitting name in writing as a protestant is sufficient); Bryniarski v. Montgomery Co., 247 Md. 137, 143 , 230 A.2d 289 (1967) (testifying before agency is sufficient); DuBay v. Crane, 240 Md. 180, 184 , 213 A.2d 487 (1965) (identifying self on agency record as a party is sufficient).” See Medical Waste v. Maryland Waste, supra, 327 Md. at 611-612 , 612 A.2d at 248-249 . For a person or entity to maintain an action under the Administrative Procedure Act for judicial review of an administrative decision, the person or entity “must both be a ‘party’ to the administrative proceedings and be ‘aggrieved’ by the final decision of the agency.” Medical Waste v. Maryland Waste, supra, 327 Md. at 611 , 612 A.2d at 248 . See § 10- ²⁸⁸ 222(a)(1) of the State Government Article; Bailey v. Dep’t. of Public Safety, 333 Md. 397, 405 , 635 A.2d 432, 436 (1994); Maryland-Nat’l v. Smith, supra, 333 Md. at 11, 633 A.2d at 859 (“Establishing the [plaintiffs] status as a party to the proceedings before the Board of Appeals completes only half of the required analysis; the [plaintiff] must also be aggrieved by the Board’s decision in order to have standing”).

While the term “aggrieved” is not defined in the Administrative Procedure Act, we have held that the statutory requirement that a party be “‘aggrieved’ mirrors general common law standing principles applicable to judicial review of administrative decisions.” Medical Waste v. Maryland Waste, supra, 327 Md. at 611 n. 9, 612 A.2d at 248 -249 n. 9; Bryniarski v. Montgomery Co., 247 Md. 137, 143-146 , 230 A.2d 289, 294-295 (1967). Accordingly, in order to be “aggrieved” for purposes of judicial review, a person ordinarily must have an interest “ ‘such that he is personally and specifically affected in a way different from ... the public generally.’ ” Medical Waste v. Maryland Waste, supra, 327 Md. at 611 n. 9, 612 A.2d at 248 -249 n. 9, quoting Bryniarski v. Montgomery Co., supra, 247 Md. at 144 , 230 A.2d at 294 . See Maryland-Nat’l v. Smith, supra, 333 Md. at 11, 633 A.2d at 859 ; Abramson v. Montgomery County, 328 Md. 721, 733 , 616 A.2d 894, 900 (1992); DuBay v. Crane, 240 Md. 180, 185 , 213 A.2d 487, 489-490 (1965) (“the [administrative] decision must not only affect a matter in which the protestant has a specific interest or property right but his interest therein must be such that he is personally and specially affected in a way different from ... the public generally”). In the present case, the letter from the Secretary of the Department delegating authority to an ALJ to hold a hearing requested that the ALJ render findings and conclusions on whether the plaintiffs had standing to participate in the administrative hearing.

If there were a statutory provision or a regulation setting forth criteria for administrative standing, the Secretary’s request would have been appropriate. Under such circumstances, the ALJ could properly make ²⁸⁹ findings and conclusions concerning administrative standing. No party in the instant case, however, has called to our attention any statute or regulation prescribing criteria for administrative standing in a case like this, and we are not aware of any such statute or regulation. Consequently, under the decisions of this Court discussed above, the plaintiffs were appropriately accorded standing as parties to the administrative hearing.

There was no proper issue of administrative standing to be resolved by the ALJ. The ALJ, however, did in fact render findings and conclusions with respect to the plaintiffs’ standing, holding that the plaintiffs would not be “aggrieved” by the issuance of the permits and that, therefore, they did not “have standing to challenge the administrative decisions.” The ALJ purported to apply the case law dealing with standing in court to maintain a judicial review action. If the ALJ’s findings and conclusions concerning the plaintiffs’ standing were intended to relate to administrative standing, the ALJ clearly applied an erroneous standard. Moreover, as pointed out previously, the plaintiffs were in fact properly accorded administrative standing.

The plaintiffs’ status at the administrative hearing was simply a non-issue. If, on the other hand, the ALJ was rendering findings and conclusions on the plaintiffs’ entitlement to maintain a judicial review action, which appears more likely and which was the Court of Special Appeals’ interpretation of the ALJ’s opinion, then the ALJ went beyond her proper role. In addition, the Court of Special Appeals erred in according any deference to the ALJ’s findings and conclusions concerning judicial standing. Under basic principles of administrative law, as well as the separation of powers requirement set forth in Article 8 of the Maryland Declaration of Rights, 13 it is not the proper ²⁹⁰ function of an administrative official or agency in the executive branch of government to decide whether a plaintiff or potential plaintiff has standing to maintain an action in court.

The purpose of the “Contested Cases” subtitle of the Administrative Procedure Act is “to resolve disputes in administrative prceedings,” Code (1984, 1995 RepLVol.), § 10-201(1) of the State Government Article, and not to resolve disputes in judicial proceedings. The General Assembly may, of course, enact legislation affecting a person’s standing to bring a type of action in court or prescribing criteria for standing to bring such an action. See, e.g., State Administrative Bd. v. Election Bd. of Balt., 342 Md. 586, 596-597 , 679 A.2d 96, 101 (1996); Medical Waste v. Maryland Waste, supra, 327 Md. at 614-623 , 612 A.2d at 250-255 ; Boulden v. Mayor, 311 Md. 411, 414 , 535 A.2d 477, 479 (1988); Public Serv. Comm’n v. Md. People’s Counsel, 309 Md. 1, 6-10 , 522 A.2d 369, 371-373 (1987); Dep’t. of State Planning v. Mayor and Council of Hagerstown, 288 Md. 9, 10-16 , 415 A.2d 296, 297-300 (1980).

Nevertheless, with respect to the allocation of functions between administrative agencies and the judiciary, the determination of whether a person has standing to maintain an action in court is exclusively a judicial function. See, generally, Attorney General v. Johnson, 282 Md. 274, 283-290 , 385 A.2d 57, 63-67 , appeal dismissed, 439 U.S. 805 , 99 S.Ct. 60 , 58 L.Ed.2d 97 (1978); Shell Oil Co. v. Supervisor, 276 Md. 36, 44-47 , 343 A.2d 521, 526-527 (1975); Dep’t of Nat. Res. v. Linchester Sand and Gravel Corp., 274 Md. 211, 220-223 , 334 A.2d 514, 521-522 (1975); Dal Maso v. County Commrs., 182 Md. 200, 205 , 34 A.2d 464, 466 (1943); Mayor and Council of Hagerstown v. Dechert, 32 Md. 369, 383 (1870); Wright v. Wright’s Lessee, 2 Md. 429, 452-453 (1852); Miller v. State, 8 Gill. 145, 148-150 (1849); Berrett v. Oliver et al., 7 G. & J. 191, 206 (1835). See also New England Rehabilitation Hosp. v. CHHC, 226 Conn. ²⁹¹ 105, 627 A.2d 1257, 1272 (1993) (administrative agency is not “vested with the authority to decide ... who could challenge an adverse decision of the agency in court”); Rose v. Freedom of Information Com’n, 221 Conn. 217 , 602 A.2d 1019, 1024 (1992); Kemp-Golden v. Dept. of Children & Fam., 281 Ill.App.3d 869 , 217 Ill.Dec. 599, 605-606 , 667 N.E.2d 688, 694-695 (1996).

In holding that the issue of standing in court may properly be litigated at the administrative level, and that a reviewing court may appropriately defer to the agency’s findings and conclusions regarding judicial standing if those findings and conclusions are supported by substantial evidence, the Court of Special Appeals relied on Bryniarski v. Montgomery Co., supra, 247 Md. 137 , 230 A.2d 289 . The Bryniarski opinion pointed out that, when “[a] person whose property is far removed from the subject property” faces a challenge in court to his standing, and therefore attempts to establish in court that he is aggrieved by an administrative zoning decision, he may rely on “evidence” before the agency, as well as evidence before the court, to show “that his personal or property rights are specially and adversely affected by the [administrative] action.” 247 Md. at 145 , 230 A.2d at 295 . The opinion in Bryniarski did not suggest that it would be appropriate for the administrative agency to render findings and conclusions with regard to standing in court, or that a reviewing court should give any deference to administrative findings and conclusions when deciding whether the plaintiff was entitled to maintain an action for judicial review. Instead, Bryniarski clearly viewed the resolution of the standing dispute to be exclusively a judicial function.

Thus, the Court in Bryniarski referred to the standing issue as having been “determined by the courts on a case by case basis,” and, in commenting on a prior case, Bryniarski referred to findings of the “trial court ... on conflicting evidence, that the protestant was a person aggrieved.” 247 Md. at 144-145 , 230 A.2d at 294-295 , emphasis added. The other cases in this Court have also treated the question of standing to maintain a judicial review action as a matter to ²⁹² be resolved exclusively by the courts. Thus, in Town of Somerset v. Montgomery County Board of Appeals, 245 Md. 52, 63 , 225 A.2d 294, 301 (1966), Judge Oppenheimer for the Court stated: “When the issue of the standing of an appellant to [seek judicial review] is raised in the court in which review of the administrative action is asked, we have approved the practice of trial judges in permitting testimony on the point to be taken before them, see e.g., Chatham Corp. v. Beltram, 243 Md. 138, 148 , 220 A.2d 589 (1966) and Wilkinson v. Atkinson, 242 Md. 231 , 218 A.2d 503 (1966). The question is not one of taking additional testimony on the merits of the substantive issues decided by the Board [compare Suburban Properties, Inc. v. Mayor and Council of Rockville, 241 Md. 1, 5-6 , 215 A.2d 200 (1965) and cases therein cited], but of determining whether the appellants have the requisite standing to have those issues reviewed.” See, e.g., Maryland-Nat’l v. Smith, supra, 333 Md. at 11-14, 633 A.2d at 859-861 ; Morris v. Howard Res. & Dev.

Corp., supra, 278 Md. at 424-425 , 365 A.2d at 38 (judicial standing issue should be adjudicated by the circuit court “through a motion or other pleading filed by [an adverse party] to dismiss Morris as a party, Morris’s answer thereto, and testimony if need be on the point”); Baxter v. Montgomery County, 248 Md. 111, 113 , 235 A.2d 536, 537 (1967) (it is the trial court’s function to decide whether the plaintiffs are aggrieved, and “the court may hear evidence to establish that aggrievement”); Kennerly v. Mayor & Council of Baltimore, 247 Md. 601, 606 , 233 A.2d 800, 803 (1967); Hertelendy v. Montgomery Cty., 245 Md. 554, 564-568 , 226 A.2d 672, 678-680 (1967); The Chatham Corp. v. Beltram, 243 Md. 138, 148-149 , 220 A.2d 589, 595 (1966); Wilkinson v. Atkinson, 242 Md. 231, 233-235 , 218 A.2d 503, 505-506 (1966); Brashears v. Lindenbaum, 189 Md. 619, 628-629 , 56 A.2d 844, 849 (1948) (“These jurisdictional facts [showing standing to seek judicial review and thereafter to appeal] should appear from the record, and in the event of dispute, should be resolved by the Circuit Court”). ²⁹³ The Court of Special Appeals, therefore, erred in holding that any deference could be given to the administrative decision concerning the plaintiffs’ standing to maintain an action for judicial review. B. The Court of Special Appeals also erred by blurring the distinction between standing to seek judicial review of an administrative decision and the merits of that administrative decision. While recognizing that there was evidence showing that more toxic substances from the incinerator would likely fall on the plaintiffs’ properties than on properties much farther from the incinerator, the Court of Special Appeals relied on administrative findings “that the probable emissions from the [incinerator] would be insignificant or well within acceptable limits established by national health and environmental agencies.” Sugarloaf v. Dept. of Environment, supra, 103 Md.App. at 281 , 653 A.2d at 511-512 . The Court of Special Appeals pointed out that the ALJ discounted conclusions from the Department of Natural Resources that “unacceptable levels of ... arsenic, mercury, dioxins, and PCBs” may fall on nearby farm ponds. 103 Md.App. at 281 , 653 A.2d at 512 .

Because, in the Court of Special Appeals’ view, substantial evidence supported the ALJ’s findings that the plaintiffs would not suffer “actual ... harm” and that emissions falling on their properties would be insignificant or “within acceptable limits,” 103 Md.App. at 280-281 , 653 A.2d at 511-512 , the intermediate appellate court concluded that the ALJ’s views regarding the plaintiffs’ lack of standing should be upheld. Presumably, if the ALJ had found that the emissions from the incinerator would have been harmful to nearby property owners, or if the level of emissions were found to have been “unacceptable,” the permits would not have been issued. Thus, under the analysis by the Court of Special Appeals, the issue of whether any of the plaintiffs were sufficiently affected to have standing, and the issue of whether the permits should have been granted, became identical. ²⁹⁴ Moreover, the applicants and the Department take the same approach before this Court, arguing that, since the level of emissions upon any of the plaintiffs’ properties were found to have been “acceptable” under government air quality standards, none of the plaintiffs was sufficiently “harmed” to have standing to challenge in court the issuance of the permits. During oral argument before this Court, counsel for the applicants and the Department frankly acknowledged that, in their view, the standing issue and the merits were the same. 14 In cases involving challenges to administrative land use decisions, there is a distinction between standing in court to obtain review of the governmental action and the merits of the challenger’s position.

Thus, in Bryniarski v. Montgomery Co., supra, 247 Md. at 145-146, 230 A.2d at 295 , involving the administrative grant of a special exception permitting the construction and operation of an apartment hotel, this Court stated: “The status of a person to [obtain judicial review] as a ‘person aggrieved’ is to be distinguished from the result on the merits of the case itself.... If, on the merits, the board acted properly in approving the application, the protesting property owner is not damaged in law, however much he may be damaged in fact. His damage is then damnum absque injuria. Because the result on the merits might be adverse, however, does not mean that the protes ²⁹⁵ tant would not have status to challenge the board’s action.” (Emphasis in original).

The Court in Bryniarski went on to hold that evidence indicating that there would be an increase in traffic in the area because of the apartment hotel was sufficient to give landowners, who were “contiguous or close in proximity” to the proposed hotel, standing to challenge in court the grant of a special exception. Such persons would have standing even if it were ultimately determined that the increase in traffic was not so great as to require denial of the special exception. Similarly, with respect to a facility discharging toxins into the air pursuant to a permit, a nearby property owner may be subject to greater emissions than the public generally but, nevertheless, the amount falling upon the nearby property owner might be within “acceptable” limits. The impact upon a nearby property owner may well be different from the impact upon the general public but may not amount to legally cognizable harm.

Therefore, standing to challenge governmental action, and the merits of the challenge, are separate and distinct issues. See, e.g., Assn. of Data Processing Service Org. v. Camp, 397 U.S. 150, 153 , 90 S.Ct. 827, 830 , 25 L.Ed.2d 184, 188 (1970) (whether there has been an invasion of one’s “ ‘legal interest’ ... goes to the merits. The question of standing is different. It concerns ... the question whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question ”); Flast v. Cohen, 392 U.S. 83, 99 , 88 S.Ct. 1942, 1952 , 20 L.Ed.2d 947, 961 (1968) (“The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a ... court and not on the issues he wishes to have adjudicated”); Town of Somerset v. Board, supra, 245 Md. at 63, 225 A.2d at 301 (distinguishing between “the merits of the substantive issues decided by the Board” and whether “the appellants have the requisite standing to have those issues reviewed”); Stein, Mitchell & Mezines, Administrative Law § 50.01, at 50-3 (5th ed. 1996) (“Questions of standing focus ²⁹⁶ not on the merits of the case but on what parties have the right to seek judicial review”).

If a plaintiffs standing in court to challenge the issuance of a government permit allowing particular activity on the permittee’s land were dependent upon the plaintiffs establishing that he or she would suffer legally cognizable harm, the result would be that numerous permits, issued after adjudicatory hearings, would be immune from judicial review. Furthermore, as illustrated by the present case, plaintiffs in judicial review actions would be faced with an unreasonable hurdle. The Court of Special Appeals did seem to require in the present case, as a pre-requisite for the denial of standing, that the record contain substantial evidence supporting the administrative findings and conclusions that the emission levels from the incinerator would be within acceptable limits under governmental standards. But, in the instant case, the plaintiffs’ argument on the merits is not that particular findings by the ALJ were unsupported by substantial evidence.

Instead, as discussed in Part III of this opinion, infra, the plaintiffs contend that the ALJ committed numerous errors of law by excluding relevant issues and evidence, by misconstruing the applicable governmental air quality standards, and by ignoring certain evidence. According to the plaintiffs’ theory, if the ALJ had not erroneously excluded certain issues and evidence, the ALJ would have found that the levels of toxic substances falling on nearby property owners were not acceptable, and thus the nearby property owners would have suffered legally cognizable harm. Similarly, under the plaintiffs’ theory, if the ALJ had applied correct governmental standards, she would have found that the amount of pollutants emitted from the incinerator and falling on nearby property owners was unacceptable. If the plaintiffs’ contentions on the merits are valid, they may have suffered legally cognizable harm.

But they were precluded from making these arguments in the courts below on the ground that, under the ALJ’s decision, they would not suffer legally cognizable harm. Under the approach taken by the Court of Special Appeals and the respondents, an administrative agency can, by erroneously ²⁹⁷ excluding issues and evidence or by misconstruing the law, conclude that none of the challengers to the issuance of a permit would be harmed in a legally significant manner, and such finding, if supported by sufficient evidence at the hearing, would deprive any challengers of standing to maintain a judicial review action. The challengers would lack standing even though, if the challengers’ arguments on the merits are sound, they might suffer such legally cognizable harm. Consequently, we reject the argument that the plaintiffs lack standing because, in the respondents’ view, the likely fallout of toxic substances upon their properties will be acceptable under government air quality standards.

Under Maryland law, this is an erroneous test for standing. C. It is a settled principle of Maryland law that, “ “where there exists a party having standing to bring an action ... we shall not ordinarily inquire as to whether another party on the same side also has standing.’ ” People’s Counsel v. Crown Development Corp., 328 Md. 303, 317 , 614 A.2d 553, 559-560 (1992), quoting Board v. Haberlin, 320 Md. 399, 404 , 578 A.2d 215, 217 (1990). See, e.g., County Council v. Md. Reclamation, 328 Md. 229 , 232 n. 1, 614 A.2d 78 , 80 n. 1 (1992); Sugarloaf v. Waste Disposal, supra, 323 Md. at 650 n. 6, 594 A.2d at 1119 n. 6, and cases there cited. The record in the present case establishes that the Buchanans had standing to maintain this action.

Consequently, it is unnecessary to determine whether any of the other plaintiffs also had standing. In actions for judicial review of administrative land use decisions, “[a]n adjoining, confronting or nearby property owner is deemed, prima facie, ... a person aggrieved. The person challenging the fact of aggrievement has the burden of denying such damage in his answer to the petition for [judicial review] and of coming forward with evidence to establish that the petitioner is not, in fact, aggrieved.” Bryniarski v. Montgomery Co., supra, 247 Md. at 145, 230 A.2d at 294 . See, e.g., Md.-Nat’l Cap.

P. & P. v. Rockville, 269 Md. 240, 248 , 305 ²⁹⁸ A.2d 122, 127 (1973) (indicating that one who “owns any property located within sight or sound of the subject property” is aggrieved); Wier v. Witney Land Co., 257 Md. 600, 612-613 , 263 A.2d 833, 839 (1970) (“ ‘At least three of the protestants ... are in sight distance of the property forming the subject of the petition____ These protestants were ... nearby property owners and are deemed, prima facie, to be specially damaged and, consequently, persons aggrieved’”); Chatham Corp. v. Beltram, 252 Md. 578 , 251 A.2d 1, 4 (1969) (“In light of the testimony of Mr. Beltram and Mrs. Hahn with reference to the proximity of their homes within the same subdivision to the reclassified area ... there was no error in the ruling that [they] had standing to sue”); Aubinoe v. Lewis, 250 Md. 645, 650-652 , 244 A.2d 879, 882-883 (1968); The Chatham Corp. v. Beltram, supra, 243 Md. at 148 , 220 A.2d at 595 (“Since Beltram’s evidence was that he owned property, in which he lived, in close proximity to the reclassified land ..., there was no error in ruling that Beltram had standing to sue”); Toomey v. Gomeringer, 235 Md. 456, 460 , 201 A.2d 842, 844 (1964) (although “the protestants’ properties were more than two city blocks away from the property for which rezoning was sought,” they were accorded standing); Bd. of Zoning Appeals v. Bailey, 216 Md. 536, 539 , 141 A.2d 502, 503 (1958) (standing accorded to zoning reclassification protestants who lived “three-fourths of a mile by road and between one-third and one-half a mile as the crow flies” from the subject property). In cases involving government-issued permits allowing activity which causes the emission of toxic substances into the air, the concept of “nearby” property owners who are presumptively aggrieved may well include persons in a greater geographical range than in a typical zoning matter. We need not, however, explore that issue in the present case. Under the above-cited decisions, the Buchanans were adjacent or nearby property owners who were prima facie aggrieved.

Their farm was adjacent to the PEPCO tract of land which encircled the incinerator and which contained the generating stations utilizing the energy produced by the incinerator. The ²⁹⁹ Buchanans’ farm was only 2,000 feet from the incinerator itself. If the Buchanans’ farm would not be considered adjoining or sufficiently nearby because of the size of the tract on which the joint PEPCO-Montgomery County operation was to take place, then no property owner would be presumptively aggrieved. In our view, the Buchanans were adjoining or nearby property owners, and, therefore, they were prima facie aggrieved.

Since the respondents failed in the circuit court to “com[e] forward with evidence to establish that [they were] not, in fact, aggrieved,” Bryniarski v. Montgomery Co., supra, 247 Md. at 145, 230 A.2d at 294 , the Buchanans had standing to maintain this action for judicial review. 15 Moreover, as indicated earlier, the evidence adduced at the administrative hearing demonstrated that much higher ³⁰⁰ levels of toxic substances would fall on the Buchanans’ farm and on other nearby property owners than would fall on properties farther away from the site. This would ordinarily be expected in any case involving a permit for activity causing toxic emissions into the air. Thus, as acknowledged in the applicants’ brief in this Court, there was expert testimony that property four miles from the incinerator would be less impacted than nearby property “that will be most impacted by the” incinerator. (Brief of the Northeast Maryland Waste Disposal Authority and Montgomery County at 27).

The applicants also acknowledged “that the ambient impact analysis by [applicants’] expert shows different geographic areas experience different levels of impact” (id. at 21), and that persons in close proximity to the incinerator, such as the Buchanans, will be exposed to higher levels of pollutants. As to the level of toxins on soil, vegetation and water, one expert stated that “the peak concentration point is predicted to occur” within four or five kilometers from the incinerator, while another expert put this distance as within three miles. The applicants’ expert witness Dr. Jones had conducted a toxic risk assessment on the Buchanans’ farm pond, and testified that one “would anticipate the highest deposition and runoff [of mercury and dioxide] into the [Buchanans’] pond.” With respect to mercury contamination of fish taken from the pond, Dr. Jones stated that the “hazard index ... based on the emissions rates from ... this facility was approximately ... 20% of the allowable hazard index,” and Dr. Jones characterized this as “acceptable” under federal air quality standards. With regard to dioxins, he stated that “the calculated risk for dioxins due to fish consumption of the pond was two and a half chances in a million” which he viewed as an “acceptable” risk.

As previously discussed, however, the fact that the level of pollutants from the incinerator falling on-nearby property may be “acceptable” under governmental air quality standards, thereby justifying the issuance of the permits, is not the test for a plaintiffs standing to seek judicial review. Instead, the test is whether the plaintiff is affected in a way different from ³⁰¹ the public generally. The administrative record in this case, without contradiction, shows that nearby property owners such as the Buchanans would be affected in a way different from the general public.

III

Turning to the merits, the plaintiffs contend that the ALJ committed numerous errors of law in the course of the extensive administrative hearing and in her proposed decision which was adopted by the Department. A. The plaintiffs initially contend that the ALJ, in a prehearing memorandum order filed on December 24, 1991, concerning the issues to be considered at the adjudicatory hearing, erroneously excluded from consideration any “air quality issues addressed in the PSD approval stage” even though these same “air quality matters ... [were] at the heart of whether an air quality Permit to Construct should be issued.” (Plaintiffs’ supplemental brief at 17). The plaintiffs advance the same argument with regard to the refuse disposal permit. (Id. at 40-45).

The only such allegedly excluded issue which is identified and discussed in the plaintiffs’ briefs, however, concerned “the best available control technology for toxic air emissions” or “T-BACT” as it is referred to by the parties. The plaintiffs assert that “ALJ Wagner clearly erred in concluding that T-BACT ... issues were part of the PSD ' regulatory program and therefore must be excluded” from the adjudicatory hearing on the permit to construct and the refuse disposal permit. (Id. at 45). 16 The applicants respond by arguing, inter alia, that under the broad listing of issues which the ALJ agreed to consider, and at the hearing itself, ³⁰² the plaintiffs “had the opportunity to present evidence ... in relation to every applicable air regulatory standard.” (Applicants’ supplemental brief at 14). If the ALJ had actually excluded issues and evidence relevant to the construction and the refuse disposal permit applications on the ground that such issues had been resolved in the earlier PSD permit proceeding, then we would agree with the plaintiffs that the ALJ would have committed a prejudicial error requiring a reversal of the administrative decision.

As discussed previously, this Court in Sugarloaf I held that, under the statutory and regulatory air quality scheme, the permit to construct stage is the more appropriate time at which to. hold a contested case hearing. Sugarloaf I, supra, 323 Md. at 659 , 594 A.2d at 1124 . In support of this conclusion, we explained as follows ( 323 Md. at 658 , 594 A.2d at 1123 ): “The PSD approval, however, is simply a preliminary finding that the incinerator will not significantly harm the air quality in the Sugarloaf Mountain area generally. Although such approval is required in order to construct and operate the incinerator, the PSD approval itself does not authorize the construction or operation of the facility. .

As noted previously, Montgomery County and the Northeast Authority must engage in a permit application approval process at each of these stages also. Approval of the PSD permit has no immediate effect on any individual property rights, nor does it grant to the County the authority to begin constructing the proposed facility. “Conversely, the granting of a permit to construct would more immediately affect the individuals living around the proposed facility whose property might be harmed by the incinerator. The construction permit would create an immediate right in the County to begin building the facility. Clearly at this stage in the process, where actual harm may occur, a contested case hearing is more appropriate.” Because the PSD permit approval was “simply a preliminary finding,” and because the PSD hearing was not a trial type ³⁰³ hearing, we specifically held in Sugarloaf I