Montgomery County v. One Park North Associates, 198

• Decision Date: 09 June 1975
• Docket Number: No. 198,198
• Citation: 275 Md. 193,338 A.2d 892
• Parties: MONTGOMERY COUNTY, Maryland v. ONE PARK NORTH ASSOCIATES.
• Court: Maryland Court of Appeals

Page 193

275 Md. 193

338 A.2d 892

MONTGOMERY COUNTY, Maryland v. ONE PARK NORTH ASSOCIATES.

No. 198.

Court of Appeals of Maryland.

June 9, 1975.

Charles S. Rand, Asst. County Atty., Rockville (Richard S. McKernon, County Atty., and Robert G. Tobin, Jr., Deputy County Atty., Rockville, on the brief), for appellant.

David N. Webster, Washington, D. C. (Paul R. Connolly, J. Alan Galbraith and Williams, Connolly & Califano, Washington, D. C., on the brief), for appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

MURPHY, Chief Judge.

One Park North Associates (OPNA) applied to the Washington Suburban Sanitary Commission (WSSC) in May of 1972 for sewer connection and hookup authorizations for a two-level retail store and office complex which it proposed to construct in Montgomery County, Maryland. OPNA's application was pending before the WSSC when, on August 16, 1973, the Secretary of Health and Mental Hygiene (the Secretary), acting pursuant to powers vested in him by Maryland Code (1971 Repl.Vol.) Art. 43, passed an order declaring that the sewerage facilities owned and operated by the WSSC in designated basins tributary to the Blue Plains treatment plant-including the Little Falls basin where OPNA's property was located-were inadequate. The Secretary's order specified that 'the capability of sewerage facilities at the wastewater treatment plant at Blue Plains to provide adequate treatment is being exceeded, which conditions continue to cause discharges of raw and inadequately treated sewage into the waters of the State, which waters are being, or are liable to become polluted in a way dangerous to health, thereby constituting a menace and nuisance prejudicial to the health, safety and comfort of the public.' With exceptions not here pertinent, the Secretary's order prohibited issuance by the WSSC of any sewer 'authorization, connection, or hookup within (the designated) basins tributary to the Blue Plains Plant,' without his approval. ¹

On September 26, 1973, OPNA sought the Secretary's approval for a sewer and water authorization, connection and hookup for its proposed complex. OPNA's application recited that water and sewer lines of adequate capacity were immediately available to the site in public rights of way; that Phase I of the proposed complex would be two years in construction and when completed would, according to WSSC engineering calculations, generate a sewer volume of 31,987 gallons per day; that during the period of construction of Phase I, OPNA would effect an immediate reduction of sewer flow of 40,796 gallons per day into the Blue Plains Plant; that of this reduced daily sewer flow, 37,796 gallons would result from the installation of water reclamation systems on two commercial car wash operations which OPNA controlled in basins tributary to the Blue Plains Plant; that the remaining 3,000 gallons per day of reduced flow would be effectuated by disconnecting six active sewer connections on OPNA's property; and that as a result, there would be a permanent reduction of flow into Blue Plains, after Phase I was completed, of 8,809 gallons per day, or 3,215,285 gallons annually. Because of the proposed reductions of sewer flow, both immediate and permanent, OPNA urged the Secretary to make an exception to his order of August 16, 1973.

By a letter dated October 19, 1973, the Secretary advised OPNA that 'such an exception as you request would constitute a clear violation of the intent of our Orders which are to prohibit further discharges of raw or inadequately treated sewage into the waters of the State.' In his letter, the Secretary stated that OPNA could appeal his decision to the Board of Review of the Department of Health and Mental Hygiene (the Board).

OPNA noted an appeal to the Board on November 1, 1973, alleging that the Secretary's decision not to grant the exception was 'arbitrary, capricious and unreasonable.' A hearing was held on December 20, 1973, before the Board. The Attorney General appeared on behalf of the Secretary; he maintained that even if the water reclamation devices-which 'do not have a track record' and are 'conceptual theories'-operated to decrease the amount of water used to carry the organic material, the organic load itself, which causes the pollution to the State's waters, would not thereby be decreased. In rebuttal, OPNA argued that its water savings system were 'tested, tried, and proven.' It stated:

'The only people who will be coming to this shopping center will be those who are serviced in this area by the Bule Plains Treatment Plant. . . . (T)hose people . . . will either flush at home or they will flush here.'

OPNA pointed out that its proposed complex was designed to service the Metropolitan Washington area, all of which was serviced by the Blue Plains Treatment Plant and that, as a result, the overall volume of the organic load in the sewage would not be increased. It argued 'So if somebody comes from Virginia to shop there or someone from 12th and M Street, Northwest, comes to shop in Montgomery County, they are still using that same old Blue Plains Treatment Plant and it is really just a trade off. Your volume doesn't increase. Your pollutants don't increase but your volume is being tremendously decreased.'

Speaking on the Secretary's behald, Mr. Bingley, a sewage engineer, said:

'(W)e are not talking about pollution due to a volume of water or a volume of liquid. We are talking about pollution dur to orgnic material discharged by the human being. This amount of organic material discharged by the human being can be conveyed to a treatment facility by 10 gallons or by a hundred gallons. Ten gallons admittedly is less hydraulic volume but the organic load, the stuff that really causes pollution, is still there regardless of the quantity of water.

'. . . (W)e are not talking about real volume as a pollution, we are talking about a volume of water carrying a pollution load.'

'We can decrease the volume of water but we haven't decreased the pollution problem. We have only decreased the possibility of sewage overflow.'

'(I)f you decrease the volume and increase the number of people, you are automatically increasing the organic material.'

'In a commercial enterprise such as a shopping center or something the public uses, I submit to you that there are plenty of people outside the area who are coming in to use that facility. That is, coming in to shop.'

Asked whether the water reclamation devices to be installed on the car wash operations would reduce the chemical pollutants, Bingley said they would not.

By an order dated January 21, 1974, the Board concluded that OPNA had 'presented a factual case for the relief of sewage effluent in the aggregate by a combination of water saving devices in two car wash operations and the deactivation of housing in the area of construction of the proposed shopping center . . ..' In its order, the Board found that OPNA presented '(a) reasonable alternative to sewage overflow . . . in the sewage drainage basin effected by the proposed project'; that the State failed 'to contradict the reasonable conclusion that there would be no threat to the health and welfare of the citizens of the State in the implementation of this total plan'; and that '(t)he State and its subdivisions will be well served if the project is completed.' The Board 'set aside' the Secretary' order of August 16, 1973 and directed that OPNA 'shall be granted' the requisite authorizations by the WSSC.

While neither a party nor an intervenor in the proceedings before the Secretary or the Board, Montgomery County (the County) noted an appeal to the Circuit Court for Montgomery County from the Board's order of January 21, 1974. The County alleged that it was required by § 387C of Art. 43 to provide for the orderly expansion and extension of community sewerage systems and to provide for adequate sewage treatment facilities to prevent the discharge of untreated or inadequately treated sewage into the waters of the State. It maintained that the Board's order had undermined the authority vested in the County under the statute; that the Board had acted in excess of its statutory authority; and that the Board was without power to set aside an order of the Secretary, or to direct the issuance of a sewer connection authorization, which was a function vested exclusively in the WSSC. OPNA challenged the County's right to appeal; it asserted that, because the County was not a party, it had no standing to appeal from the Board's decision.

In an opinion dated September 11, 1974, the court (Shure, J.) concluded that the County, though not a party in the proceedings below, was aggrieved by the Board's order and had a right to appeal under the Administrative Procedure Act, Code Art. 41, § 244 et seq. and subtitle B (Administrative Agencies-Appeal From) of Chapter 1100 of the Maryland Rules. The court nevertheless concluded that the action taken by the Board was within its authority and was neither...