Anne Arundel County v. Governor

Citations: 413 A.2d 281; 45 Md. App. 435; 1980 Md. App. LEXIS 268Docket: 1592, September Term, 1979

Court: Court of Special Appeals of Maryland; April 16, 1980; Maryland; State Appellate Court

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The Court of Special Appeals of Maryland affirmed the Circuit Court for Anne Arundel County's orders regarding the transportation and storage of polychlorinated biphenyl (PCB) at the General Services Administration (GSA) facility in Curtis Bay. The case originated from a temporary injunction issued by the Circuit Court that prohibited Anne Arundel County from obstructing the State's efforts to transport PCB. The County's appeal sought to stay the injunction and expedite the hearing, but the State opposed these requests, arguing they would hinder the transportation process. After hearing arguments on February 15, 1980, the appellate court upheld the injunction. Although the transportation was completed, the court deemed it important to address the legal issues raised by the County's complaint, which highlighted concerns about the potential hazards of storing PCB at a site that may also contain other hazardous substances. The County's refusal to accept the ruling led to a request for certiorari to the Court of Appeals, which was denied. Costs were to be borne by the appellant, and a mandate was issued promptly.

The State has not assessed or inventoried the PCB stored at the Ordnance Depot, which is located in a densely populated area, posing health risks to residents and potential environmental hazards due to its proximity to major transportation routes. The County Fire Department, responsible for fire suppression on-site, requires detailed information about the stored PCB to manage fire risks effectively. Additionally, various County agencies would respond in case of an emergency at the site. The transport of PCB through populated areas heightens risks to public safety and the environment. The State should not authorize transportation or storage at a new site until compliance with specific safety regulations is demonstrated, including structural adequacy, floodplain distance, and decontamination facilities. No urgent health or safety reasons justify moving the PCB before thorough studies are completed, and a hasty decision could endanger Maryland citizens, particularly in Anne Arundel County. The County has not been formally involved in decision-making regarding the PCB and has requested data from the GSA while engaging a consultant to evaluate the storage impacts. Delaying State approval for PCB movement will not cause harm, and an environmental impact statement is necessary to assess current and future storage implications. Immediate and significant harm could occur if PCB transport and storage approvals are granted before adequate studies are conducted. Judge Williams granted an ex parte injunction requiring the State to respond within ten days, and a stipulation was made that the County would not pursue further ex parte relief before a hearing on the interlocutory injunction, with the State agreeing to inform the County of any PCB transfer applications.

The State withdrew its demurrer to the County's suit in open court following subsequent developments. The facts recognized in this case are those established by Judge Morris Turk in the Anne Arundel County Circuit Court. The Anne Arundel County Council enacted two ordinances addressing the storage and transfer of hazardous substances. Bill Number 158-79 amends the County Code to clarify definitions of hazardous, toxic, and special wastes; establish licensing and permit fees; require specific application forms for waste disposal; mandate manifests for certain shipments; and restrict the landfilling and transportation of certain wastes not generated within the County. Bill Number 159-79 introduces additional definitions and conditions for the movement of hazardous substances, alongside licensing provisions. 

In response to these ordinances, the State filed a counterclaim for Declaratory Injunction and other relief, arguing that State and Federal regulations preempt local control over hazardous waste and that the ordinances violate the Federal Commerce Clause. A hearing on interlocutory injunctions occurred on January 11, 1980, during which Browning-Ferris, Inc., a certified hazardous substance hauler, was allowed to intervene. The State's case included testimonies from Federal and State agency representatives regarding the management of PCB movement from Sharptown to Curtis Bay. Notably, Mr. Philip Retallick from the EPA provided insight into the chemical risks of PCBs and the Federal Water Pollution Control Act, which authorizes federal funding for addressing hazardous substance threats to navigable waterways. The EPA's involvement began after the Coast Guard alerted them to unsafe storage practices at a facility operated by the GRICO Company, which was found to contain hazardous substances near the Nanticoke River.

Tank No. 16 contains PCB levels of 310,000 parts per million (ppm), while Tank No. 17 has traces of xylene with a flash point of 80°F, and Tank No. 18 contains xylene mixed with PCB at 6,700 ppm. Mr. Retallick testified that materials with PCB levels exceeding 50 ppm are toxic and can cause severe health effects in humans, including skin reactions, dizziness, jaundice, loss of appetite, sterility, and nausea. PCBs are non-biodegradable and persist in the environment, accumulating in the fatty tissues of aquatic species and moving up the food chain.

PCBs in the range of 50-500 ppm can be processed in EPA-approved boilers, while those over 500 ppm require incineration in approved facilities, with incinerators in Arkansas and Texas expected to be operational by April 1, 1980. The Sharptown facility can dispose of 7,960 gallons of PCB materials in boilers and 24,510 gallons must be incinerated. Testing by the Coast Guard and NOAA indicated no abnormal PCB levels in the Nanticoke River near the GRICO site. 

Mr. Retallick's inspection of the Sharptown facility revealed significant deficiencies, including inadequate tank structures that lack an impervious base, proper roofing, and sufficient flood protection, posing a serious hazard. The tanks are situated on sandy soil, complicating necessary safety upgrades without risk of rupture. He estimated that transferring materials from Sharptown to incineration would take about two weeks, allowing for completion by April 14, 1980, if incineration begins on schedule.

Mayor Ralph Cordrey of Sharptown highlighted the facility’s critical location and the development of an evacuation plan due to the potential risks. The Nanticoke River is vital for local food, income, and as a spawning ground for rockfish. Additionally, James L. Hearn, the Director of the Department of Natural Resources Water Resources Administration, testified regarding the state's involvement in the situation.

Materials tested by the DNR, EPA, and Coast Guard in August at Sharptown yielded results consistent with those reported by Mr. Retallick. Following these findings, the Response Team, of which Mr. Hearn was a member, evaluated 1,000 potential interim storage sites, primarily focusing on State and Federal government facilities. Key selection criteria included availability, cost, current use, necessary modifications, accessibility, security, proximity to populated areas, and employee count. A private site in Jessup, Georgia, was considered but failed to meet Federal standards and is now under EPA investigation.

Five candidate sites for interim storage were ultimately identified by a memorandum to Mr. Hearn, including a vacant turkey house at the Maryland Correctional Institute, the Dundalk Marine Terminal, the Edgewood Area of Aberdeen Proving Ground, an abandoned Nike Site in Tolchester, and the Curtis Bay Ordnance Depot. The Curtis Bay Depot was prioritized due to its immediate availability, security, distance from population centers, low employee count, and minimal modification needs. It is located approximately 19 feet above the 100-year flood plain and between 1/4 to 1/2 mile from the nearest water.

Mr. Hearn explained why other sites were dismissed, including the GRICO location, which was rejected due to being situated below the 100-year flood plain. An administrative order was issued by the DNR against Mr. Grigsby, the GRICO owner, and the SBA to remove PCBs from Sharptown. An attempt to have General Electric Inc. accept the PCBs for storage was unsuccessful.

Captain John Kime of the Coast Guard, who oversees pollution emergencies along coastal areas, testified about his role as the pre-designated on-scene coordinator. After the SBA acquired the GRICO facility, they discovered hazardous materials that led to the buyer backing out of the purchase. The Coast Guard declared Sharptown a Federal project to secure funding, and actions were taken to secure the site. A court ruling declared Mr. Grigsby as the owner of the chemicals, yet he refused to remove them. Captain Kime corroborated the testimonies of Mr. Retallick and Mr. Hearn regarding sampling conducted in July, August, and September 1979. The Response Team voted unanimously for Curtis Bay as the interim site, though the final decision rested with Captain Kime, who later sought a reevaluation meeting with local officials.

Captain Kime confirmed Curtis Bay as the interim storage site for PCB materials, citing factors such as compliance with EPA standards, security, minimal population impact, and suitability concerning flood risks. The facility features a reinforced concrete floor, 12-inch high berms, an impervious epoxy coating, and secure access through heavy metal doors. The Coast Guard has coordinated with Rollins Environmental Services for the transfer of PCB materials from Sharptown to Curtis Bay, with plans to move them to incinerators once approved. Although no final contract was signed by the hearing date, the Coast Guard was ready to accept modified terms from Rollins, including a maximum storage of 100,000 gallons in Texas and a 60-90 day timeframe for removal post-approval. Captain Kime estimated completion between July 1 and Labor Day, but the Curtis Bay agreement with GSA stipulates a December 31, 1980 expiration.

The transfer protocol involves deploying a contractor and Coast Guard team to Sharptown within thirty days of final agreement. PCB materials with less than 50 ppm will be sent to New Jersey and Arkansas, while hazardous materials will be contained in DOT-approved 55-gallon drums. These drums will be transported in closed tractor trailers, with two loads per day planned. Movement will occur during safe daylight hours, escorted by State Police, along designated state highways. Upon arrival at Curtis Bay, unloading will happen on a prepared concrete apron within a containment dike. Additional safety measures include the availability of protective gear, clean-up materials, and compliance with Underwriters Laboratory standards for forklifts. Notably, Anne Arundel County officials were consulted only after site selection, and the warehouse currently lacks electricity. An EPA-approved spill prevention plan will be established prior to the movement of materials.

A dispute arose between State and Federal officials regarding the need for a State permit for the Curtis Bay facility. The Coast Guard supplied necessary materials for the permit but denied that a permit was required. The hauler must obtain State certification for transporting materials. Mr. Hearn from the Water Resources Administration testified that the State was ready to issue an emergency permit for the facility based on Coast Guard materials, despite no formal application. If no removal occurs within 180 days, the State will reassess the situation. Mr. Hearn had minimal interaction with the proposed hauler, Rollins, only providing regulatory information. Certification for the hauler can be granted within two days of application.

County Executive Mr. Robert A. Pascal expressed concerns about the lack of County input in choosing Anne Arundel County for hazardous material storage and the potential risks of spills, vandalism, and proximity to the Baltimore-Washington International Airport. Mr. Donald T. Perry, Chief of the County Water Division, testified that the GSA warehouse is 2.5 miles from the County water supply but lacked expertise in the chemical properties of hazardous materials. He found no reason to believe that PCBs would contact the ground beneath the warehouse based on Captain Kime's testimony. Mr. Singh Dillon, Director of Environmental Health, explained his role in enforcing County ordinances related to hazardous waste, which align with DNR and EPA criteria and require County involvement.

Mr. Fred Cashen, a chemist, raised alarms about the storage of materials containing PCBs and xylene, highlighting xylene's low flash point and the risk of fire due to improper ventilation and storage practices. His conclusions were based on National Fire Prevention Association recommendations, although he had not inspected the warehouse.

The County sought a dichotomous injunction to prevent the State from issuing permits for the Coast Guard's hazardous waste operations and for the transportation of PCBs.

The State filed a counterclaim seeking an interlocutory injunction to prevent the County from enforcing Bill Nos. 158-79 and 159-79, and for a declaratory judgment declaring these provisions invalid under federal and state law. Judge Turk found that the County failed to prove an imminent threat or irreparable injury from storing PCB materials at Curtis Bay, while the State successfully demonstrated that keeping PCB in Sharptown posed an immediate danger. Judge Turk made four key findings: 1) An emergency existed at Sharptown regarding PCB storage; 2) The storage tank did not meet standards; 3) Both federal and state authorities designated Curtis Bay for temporary PCB storage; 4) Storing PCB at Curtis Bay posed less risk to the public than at Sharptown. The judge ruled that granting the County's request would ignore a dangerously precarious situation. Consequently, he granted the State's request for an injunction against the County's ordinances. The County's appeal focuses on whether Judge Turk abused his discretion in denying its temporary injunction while granting the State's. The Court of Appeals noted that trial court decisions on preliminary injunctions are rarely overturned, emphasizing that such discretion must consider all relevant factors.

A proper exercise of discretion by the court requires consideration of four key factors: likelihood of success on the merits, balance of convenience, potential for irreparable injury (including the need to maintain the status quo), and the public interest. The complainant bears the burden of presenting a case that justifies the issuance of a preliminary injunction. If the facts in the complaint are not sufficiently clear or definite to support the asserted right, the court will deny preliminary relief. In situations where two government entities (State and County) are in conflict over public interest duties, a temporary injunction can help resolve the impasse and preserve the status quo, provided it does not harm the public interest more than a refusal to intervene would. In previous rulings, such as Pr. George's Co. v. Md-Nat'l Cap., the court found that declaratory relief was suitable for disputes between public agencies, leading to a temporary injunction to protect essential functions and activities. Applying these four factors to the current case, the assessment indicates a substantial likelihood of success for the State at trial.

Judge Turk exercised his discretion appropriately by allowing the State to remove PCB from the Sharptown storage tanks to prevent potential irremediable harm to the people of Maryland. He enjoined the County from enforcing ordinances that would obstruct this action. The key parties involved included Maryland Governor Harry R. Hughes and various state officials, referred to collectively as "the State," as well as Browning-Ferris, Inc., a contractor involved in the PCB removal. The Mayor and City Council of Baltimore were allowed to intervene as plaintiffs, referred to as "the County." The excerpt references regulatory requirements for the management and disposal of PCBs, including leak checks every 30 days and the need for permits from the Department of Natural Resources for transporting hazardous substances. The parties agreed on the accuracy of Judge Turk's factual recitation, which was supported by evidence in the form of a memorandum. The legal framework cited includes Maryland Natural Resources Code and federal regulations regarding hazardous substances.