State, Dept. of Environment v. Showell

• Decision Date: 01 September 1987
• Docket Number: No. 61,61
• Citation: 558 A.2d 391,316 Md. 259
• Parties: STATE of Maryland, DEPARTMENT OF THE ENVIRONMENT v. John Dale SHOWELL III. ,
• Court: Maryland Court of Appeals

Page 259

316 Md. 259

558 A.2d 391

STATE of Maryland, DEPARTMENT OF THE ENVIRONMENT v. John Dale SHOWELL III.

No. 61, Sept. Term, 1987.

Court of Appeals of Maryland.

June 2, 1989.

Richard M. Hall, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Linda B. Duff, Staff Atty., on the brief), Baltimore, for appellant.

Raymond S. Smethurst, Jr. (Barbara R. Trader and Adkins, Potts & Smethurst, on the brief), Salisbury, for appellee.

Argued before MURPHY, C.J., ELDRIDGE, COLE, McAULIFFE, ADKINS, and BLACKWELL, JJ., and MARVIN H. SMITH, Associate Judge of the Court of Appeals (Retired), Specially Assigned.

COLE, Judge.

In the mid-1970s a significant sewage disposal problem developed in the West Ocean City area of Worcester County, Maryland. A high water table coupled with poor soil for disposing of sewage caused approximately half of the septic tanks actively used by homes and businesses in the area to fail at one time or another. As a result, untreated sewage was spilling into the groundwater of West Ocean City contaminating the drinking water and creating a public health hazard.

In 1976, Worcester County began implementing a state policy requiring seasonal percolation tests in areas having a high water table. This resulted in the denial of eighty to ninety percent of new applications for septic tank permits in West Ocean City, thus limiting the source of the pollution problem essentially to the homes already constructed in the area. In conjunction with this policy, the Worcester County Sanitary Commission (WCSC) and the Maryland Department of Health and Mental Hygiene (the Department) ¹ began to consider various means for providing public sewer service in West Ocean City. Ultimately, the WCSC and the Department concluded that a sewerage system would have to be constructed to convey sewage from West Ocean City to an existing sewage treatment facility in Ocean City proper.

The enormous expense associated with such a project eliminated local funding alone as an alternative and forced the WCSC to seek a construction grant from the United States Environmental Protection Agency (EPA). ² In response, the EPA conducted an extensive investigation culminating with the release of a Final Environmental Impact Statement (FEIS) in 1983. See National Environmental Protection Act, 42 U.S.C. § 4332(C) (requiring analysis of environmental effects if particular project amounts to a major federal action significantly affecting the quality of the environment). The FEIS outlined the significant problems and potential remedies pertaining to West Ocean City and elaborated on the environmental implications of constructing the sewerage system. Specifically, the FEIS projected concerns that while the sewerage system would serve to alleviate the immediate groundwater pollution problem associated with the ineffective sewage drainfields, its construction would at the same time promote extensive commercial development in West Ocean City, thereby creating conditions adverse to the 100-year floodplain ³ and wetlands in the area.

The EPA opined that such development would, contrary to the EPA's mission, eventually defeat the purpose of constructing the sewerage system in the first place. Accordingly, the EPA announced that it would only approve the requested construction grant on the contingency that the Department and the WCSC consent to restrictions limiting access to the sewerage system. In particular, the EPA proposed to limit use of the sewerage system to all existing and future structures outside of the 100-year floodplain, to all existing structures within the 100-year floodplain, and to structures to be built in the future within the 100-year floodplain if the land on which they are constructed was platted as a building lot prior to June 1, 1977. ⁴

The Department and the WCSC consented to the grant restrictions by executing a consent order on June 8, 1983. Thereafter, the EPA approved a grant of 5.3 million dollars to the WCSC; the grant represented seventy-five percent of the entire cost of the project.

John D. Showell, III, owns 39.4 acres of land in West Ocean City. Most of this land is located in the 100-year floodplain. Although Showell owned this tract of land prior to June 1, 1977, the land was never platted for use as a building lot prior to that date. Accordingly, under the consent order, Showell is only entitled to sewer service equal to one residential unit for the entire tract. This lack of sewer service has hampered Showell's development plans; consequently, he filed suit in the Circuit Court for Worcester County questioning the authority of the Department and the WCSC to execute the administrative consent order.

Showell initially filed suit solely against the Department. This suit was dismissed on the Department's motion that the WCSC and the EPA were necessary parties. Showell then amended his complaint naming the WCSC and the EPA as additional defendants. This prompted the EPA to remove the case to the United States District Court for the District of Maryland which subsequently remanded the case for lack of subject matter jurisdiction. Showell then amended his complaint a second time naming only the WCSC and the Department as defendants. Next, the Department's motion to dismiss based on the lack of a necessary party (the EPA) was denied. Showell's motion for summary judgment, however, was granted as to both defendants. ⁵

In the order granting summary judgment in favor of Showell, the trial judge found Cape May Greene, Inc. v. Warren, 698 F.2d 179 (3d Cir.1983), to be controlling and specifically found that the Department and the WCSC had acted beyond their authority. The Department appealed this ruling to the Court of Special Appeals. We granted certiorari prior to consideration by the intermediate appellate court to address the important question presented.

The Department argues that execution of the consent order represented a proper exercise of the authority of the Secretary of the Department ("the Secretary") to protect public health and abate water pollution and that the circuit court's ruling to the contrary is erroneous. In support of this argument the Department emphasizes that the Secretary enjoys broad powers to protect the public health, citing § 9-204(a) of the Health-Environmental Article. In addition to these general powers, the Department directs attention to the more specific grants of power in subtitle 3 of title 9 which relate to the control of water pollution. As the Department sees it, the consent order was clearly a "reasonable remedial measure" executed within the authority of the Department to promote a legitimate governmental objective.

The Department also relies on Shanty Town Associates Ltd. Partnership v. E.P.A., 843 F.2d 782 (4th Cir.1988), to support the argument that the Secretary properly exercised his authority. In Shanty Town, the federal appellate court ruled that the Federal Water Pollution Control Act (FWPCA) served to authorize the EPA to impose grant restrictions as to funds earmarked for construction of the West Ocean City sewerage system. The Department reasons that if the EPA was justified in imposing the restrictions, the Secretary was obligated to consent to the restrictions in order to satisfy the Department's statutory mandate of maintaining the quality of the state's waters.

Next, the Department denies that the consent order constitutes a land use restriction. Rather, as previously stated, the Department is of the opinion that the consent order represents a reasonable remedy to existing water pollution and attendant health risks in West Ocean City. The Department contends that it has never asserted that it has the authority to control land use; moreover, the consent order does not preclude development but merely requires that certain tracts of land must have sewage disposal systems independent of the sewer line constructed with funds granted by the EPA. The Department cites Mont. Co. v. One Park North, 275 Md. 193, 194-95 n. 1, 338 A.2d 892, 894 n. 1 (1975), for the proposition that in upholding the Department's power to issue sewer moratoria, this Court has focused on the Department's authority to abate water pollution rather than on the indirect effect upon land use such moratoria may have.

Finally, the Department asserts that the circuit court erred in relying on Cape May Greene, Inc. v. Warren, 698 F.2d 179 (3d Cir.1983), in granting the order for summary judgment. First, the Department argues that the EPA was not a party to the case below, and thus, the circuit court could not reach the question of the EPA'S authority to impose the grant restriction. Moreover, even if the issue of the EPA's authority was before the circuit court, the facts underlying the Cape May Greene decision can be distinguished from the facts sub judice.

In the alternative, the Department argues that the EPA was an indispensable party to the lawsuit and that the circuit court abused its discretion in failing to either dismiss the case or issue a protective order in the Department's behalf. The Department contends that it suffered prejudice as a result of the EPA's absence from the suit and that adequate relief cannot be granted to either Showell or the Department unless the EPA is joined as a party.

Showell counters that the Department lacked authority to execute the consent order. First, Showell cites §§ 9-504 and 9-505 of the Health-Environmental Article for the proposition that regulation of access to sewer service is a matter of concern for local governmental units. In Showell's view, the Department is merely empowered to regulate access to sewerage systems to ensure that such facilities are not overloaded. One Park North, supra, 275 Md. 193, 338 A.2d 892.

Next, Showell asserts that the Department's execution of the consent order usurped the power extended to local governmental units to control nonpoint source pollution ⁶ and land use. In this respect Showell...