Sugarloaf Citizens Ass'n v. Northeast Maryland Waste Disposal Authority

• Decision Date: 01 September 1990
• Docket Number: No. 32,32
• Citation: 323 Md. 641,594 A.2d 1115
• Parties: SUGARLOAF CITIZENS ASSOCIATION and Karen Kalla and Beverly Thoms v. NORTHEAST MARYLAND WASTE DISPOSAL AUTHORITY and Montgomery County, Maryland et al
• Court: Maryland Court of Appeals

Page 641

323 Md. 641

594 A.2d 1115

SUGARLOAF CITIZENS ASSOCIATION and Karen Kalla and Beverly Thoms v. NORTHEAST MARYLAND WASTE DISPOSAL AUTHORITY and Montgomery County, Maryland et al.

No. 32 Sept. Term, 1990.

Court of Appeals of Maryland.

July 18, 1991.

Motions for Reconsideration Denied September 6, 1991.

John Michael Adragna (Kathleen Winters Akerley, James R. Choukas-Bradley, Miller, Balis & O'Neil, P.C., all on brief), Washington, D.C., for petitioners

Deborah E. Jennings (Susan D. Sawtelle, Gina M. Zawitoski, Stephen Stec, Piper & Marbury, Baltimore, Md., Clyde H. Sorrell, County Atty., Diane R. Kramer, Associate County Atty., Rockville, M.D.), all on brief, Ralph S. Tyler, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Jeffrey E. Howard, Asst. Atty. Gen., all on brief), Baltimore, Md., for respondents.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE and CHASANOW, JJ.

ELDRIDGE, Judge.

The controversy in this case centers around the Prevention of Significant Deterioration (PSD) permit process required by the federal Clean Air Act, 42 U.S.C. § 7401 et seq., and implemented by the State of Maryland through the Air Management Administration of the Maryland Department of the Environment. The purpose of the PSD permit process is to prevent degradation of the ambient air quality in areas where air quality is already superior to that required by the National Ambient Air Quality Standards. PSD approval is the first step in a three stage air quality permit process, and PSD approval is required before any potential source of air pollution can be located in a PSD area. The next stage in the air quality approval process requires an applicant to obtain a permit to construct, and the final stage requires the applicant to obtain a permit to The plaintiffs are two individual landowners, Beverly Thoms and Karen Kalla, who reside near Sugarloaf Mountain, and the Sugarloaf Citizens Association, a nonprofit corporation representing the interests of the citizens residing in the Sugarloaf Mountain area of Montgomery County, Maryland. ² The defendants are Montgomery County, Maryland, the Northeast Maryland Waste Disposal Authority, and the Air Management Administration.

operate. ¹

At issue in this case is a municipal solid waste incinerator which Montgomery County and the Northeast Authority propose to construct at Dickerson, Maryland, near Sugarloaf Mountain. ³ Sometime in 1988, Montgomery County and the Northeast Authority filed an application for PSD approval of the proposed facility with the Air Management Administration. ⁴ See COMAR 26.11.02.09.

On May 10, 1988, the plaintiffs sent a letter to George P. Ferreri, head of the Air Management Administration, requesting that the Administration hold an "adjudicatory" Pursuant to COMAR 26.11.02.10C, notices were published in newspapers in the Sugarloaf Mountain area, informing residents that the Air Management Administration would hold a public hearing on November 18, 1989, regarding the PSD application, and that comments would be received through the date of the hearing. A five hour non-trial type hearing was held on November 18th, and the record was kept open for an additional thirty days in order to receive any further comments.

                hearing on the PSD application.   The Citizens Association sent numerous additional requests for an adjudicatory hearing to the Administration, specifically on May 24, 1988, September 28, 1988, and September 13, 1989.   By letter of October 13, 1989, Mr. Ferreri denied the request for an [594 A.2d 1119] adjudicatory hearing.   Furthermore, he stated that a public hearing at which interested persons could make comments would be held on November 18, 1989
                

Prior to the public hearing, on November 6, 1989, Sugarloaf Citizens Association filed in the Circuit Court for Baltimore City a complaint for a declaratory judgment, requesting the court to declare that the Air Management Administration was required to hold an "adjudicatory" hearing before taking final action on the PSD application filed by Montgomery County and the Northeast Authority. ⁵ A petition for a writ of mandamus was also filed.

The original defendants, Air Management Administration and the head of the Administration, George Ferreri, answered the complaint and petition. Subsequently, the Northeast Authority and Montgomery County moved to intervene as defendants, and filed an answer to the complaint and petition; intervention was granted.

Each defendant then filed a motion for summary judgment on two grounds, namely that the Citizens Association had no standing to sue because it lacked a property interest or special damages, and that a contested case hearing in PSD permit proceedings was not required by statute, regulation, or due process. After the defendants' motions for summary judgment were filed, the complaint and mandamus petition were amended to include the two individual plaintiffs, Ms. Thoms and Ms. Kalla.

On March 2, 1990, the circuit court held a hearing on the defendants' motions for summary judgment. The trial court entered an order on March 6, 1990, granting summary judgment in favor of the defendants. The court declared that a contested case hearing was not required by any law or by due process principles. The circuit court further held that the standing issue was moot because of its decision on the merits.

The Citizens Association and the individual plaintiffs then filed an appeal to the Court of Special Appeals. Before the case was heard in that court, Montgomery County, the Northeast Authority, and the Administration petitioned this Court for a writ of certiorari. The Citizens Association, Thoms, and Kalla filed a cross-petition. We granted both petitions and shall affirm. ⁶ The issue in this case is whether the Air Management Administration, upon request, is required to hold a "contested case" hearing as defined by Maryland's Administrative Procedure Act (APA), Code (1984, 1990 Cum.Supp.), §§ 10-201 through 10-217 of the State Government Article, before ruling on an application for PSD approval.

A "contested case" is defined by the APA as follows:

" § 10-201. Definitions.

* * * * * *

"(c) Contested case.--'Contested case' means a proceeding before an agency to determine:

(1) a right, duty, statutory entitlement, or privilege of a person that is required by law to be determined only after an opportunity for an agency hearing; or

(2) the grant, denial, renewal, revocation, suspension, or amendment of a license that is required by law to be determined only after an opportunity for an agency hearing."

Under the terms of the APA, when a proceeding meets the definition of a "contested case," the agency is required to provide certain trial type procedures during the course of the proceeding. ⁷ It is well established, however, that the APA itself does not grant a right to a hearing. That right must come from another source such as a statute, a regulation, or due process principles. See Prince George's County v. Blumberg, 288 Md. 275, 295-296, 418 A.2d 1155, 1166-1167 (1980), cert. denied, 449 U.S. 1083, 101 S.Ct. 869, 66 L.Ed.2d 808 (1981); Eliason v. State Roads Comm., 231 Md. 257, 260, 189 A.2d 649, 650-651, cert. denied, 375 U.S. 914, 84 S.Ct. 211, 11 L.Ed.2d 152 (1963); Warwick Corp. v. Dep't of Transp., 61 Md.App. 239, 244-245, 486 A.2d 224, 226 (1985); Dunkel v. Elkins, 325 F.Supp. 1235, 1246-1247 (D.Md.1971). See also Modular Closet v. Comptroller, 315 Md. 438, 445-447, 554 A.2d 1221, 1224-1225 (1989); Donocam Assoc. v. Wash. Sub. San. Comm'n, 302 Md. 501, 512, 489 A.2d 26, 31-32 (1985); Murray v. Dep't of Soc. Services, 260 Md. 323, 326-327, 272 A.2d 16, 18 (1971); Md.-Nat'l Cap. P. & P. v. Friendship Hts., 57 Md.App. 69, 81, 468 A.2d 1353 The Air Management Administration, as part of the Maryland Department of the Environment, constitutes a State agency to which the provisions of the APA are fully applicable. See §§ 10-201(b) and 10-202 of the State Government Article. Furthermore, approval of a PSD permit application constitutes the granting of a license as set forth in the definition of "contested case." See § 10-201(d) of the State Government Article.

                1359, cert. denied, 300 Md. 89, 475 A.2d 1200 (1984).   Moreover, the statute or regulation which grants the right to a hearing may negate the fact that the hearing is to be a "contested case" or "adjudicatory" hearing.   If the statutory or regulatory scheme does so, then the "contested case" provisions of the APA are inapplicable.   See, e.g., Board v. Secretary of Personnel, 317 Md. 34, 562 A.2d 700 (1989)
                

The Citizens Association and the individual plaintiffs contend that "[Code (1982, 1987 Repl.Vol.) ] Env't Art. § 2-404 and COMAR 26.11.02.10C legally obligate [the Air Management Administration] to provide an opportunity for a hearing on an application for PSD approval. Thus, the PSD approval application for the incinerator fully meets the definition of a 'contested case' under the APA." ⁸ Nevertheless, as pointed out above, the source which gives a right to a hearing may negate the fact that the hearing is to be a "contested case" or "adjudicatory" hearing. An examination of the entire statutory and regulatory scheme regarding the air quality permit process reveals that PSD approval is merely a preliminary or interlocutory requirement, prior to obtaining permission to actually construct and operate a potential source of pollution. Under COMAR 26.11.02.10C and the statutory permit scheme as a whole, the hearing required at the PSD permit stage is not a contested case hearing.

As the Citizens Association and the individual plaintiffs state, COMAR 26.11.02.10C does provide for a "public hearing" on an application for PSD approval. ⁹ The provisions of the regulation itself, however, imply that the hearing required is not to be a contested case hearing. See Board v. Secretary of Personnel, supra, 317 Md. at 41-42, 562 A.2d at 703-704; Eliason v. State Roads Comm....