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3 ELR 20581 | Environmental Law Reporter | copyright © 1973 | All rights reserved Dept. of Water Resources v. A. H. Smith Sand & Gravel Co.Law No. 47,029 (Md. Cir. Ct. April 13, 1973)The court upholds the authority of the Maryland Department of Water Resources to regulate the floodplain of free flowing waters on the basis of a fifty year flood frequency. The court sets the boundaries of the Indian Creek floodplain as those which occured during hurricane Agnes. The Department's regulation of floodplains is a legitimate exercise of police power because it benefits the general public by preserving water resources, is reasonably necessary to accomplish its purpose, and is not unduly oppressive. The Department's finding that appellant gravel company violated water quality regulations was made on the basis of adequate evidence. Appellant had fair notice of violation hearings. The exercise of other authority delegated to the Department under Section 25 of Article 96 A is not prerequisite to its enforcement of the regulations at issue. Counsel for Plaintiff Counsel for Defendant Taylor, J. MEMORANDUM AND ORDER OF THE COURT The petitioner, A. H. Smith, T/A the A. H. Smith Sand & Gravel Co., (hereinafter referred to as "Smith") has been engaged in the operation of an extensive sand and gravel excavation, washing and distribution business in the Branchville area of Prince George's County, Maryland for more than 45 years. For part of such time and at the present, Indian Creek, a waterway of the State bisects portions of the property. In the day to day operations of the business, Smith mines sand and gravel at various sites then transports it to his Branchville plant for the cleansing, grading and ultimate commercial disposal of the saleable material. The saleable material is placed in piles on Smith's property, while the effluent from the washing and grading operation is processed through a system of ponds to curtail sediment deposition in Indian Creek and to maintain the water standard of no more than 400 p.p.m. (parts per million) of settleable solids entering that waterway. The Department of Water Resources (hereinafter referred to as the Department) and its predecessor, the Maryland Water Pollution Control Commission, has maintained a continuing interest since 1950 in the effect of Smith's operations on the waters of Indian Creek and its floodplain. In May, 1950, Judge John B. Gray, then C.J. of this Circuit found in Equity A 2710 in the Circuit Court for Prince George's County that Smith had polluted Indian Creek by the discharging of waters therein containing settleable solids of more than 400 p.p.m. He ordered Smith to take corrective measures to prevent the siltation of Indian Creek, and it is apparent from the record in this case that the present "anti-pollution system" employed by Smith was brought about by Judge Gray's Order, with modifications of the initial system being made over the years. Throughout the years, since May, 1950, the Department, and its predecessor, had inspected the Smith operation at Branchville, has counselled with him concerning modifications to the anti-pollution system, has approved plans for improvement of the system and has apparently found the system reasonably satisfactory except on a few occasions. On August 27, 1970, the Department served upon Smith, by certified mail, a series of letters (hereinafter referred to as "complaints") identified as C71-074, 075, 076, 077 and 078 informing him that it had determined that pollution violations by way of sediment deposition in Little Paint Branch had occurred at five locations at his Branchville site due to erosion from his sand and gravel pits. On September 29, 1970, the Department served upon Smith, by certified mail, complaint bearing identification C71-103 informing him thereby that it had made the determination that a pollution violation had occurred in the erosion from sand and gravel storage pits along the west side of Indian Creek was causing sediment deposition therein; that the pipe carrying dredged material across Indian Creek leaked causing sediment deposition in the Creek; and that concrete and concrete washings had been discharged into Indian Creek and onto its floodplain, thus causing pollution and constriction of Indian Creek. Smith was directed to appear before the Department to answer the charges. The initial hearing on these complaints was held before Mr. Henry Silvermann, a hearing officer, on November 4, 1970. A further hearing was held on June 21, 1970, to establish the lines of the 50 year floodplain of Indian Creek at and near the Smith property at Branchville and to take evidence relative to the charge of the Department on April 26, 1971 that Smith was constructing a new "settling pond" without a proper permit therefor as required by Section 12 of Article 96A. After the hearing on November 4, 1970, the Department ordered on December 17, 1970, that Smith take corrective measures to terminate the pollution of Indian Creek and tributaries of Little Paint Branch, as alleged in complaints C71-074, 075, 076, 078 and 103, and found to be existent by the hearing officer. By this Order the Department directed that no filling operations take place in the 50 year floodplain along the east side of Indian Creek, without a permit therefore and it was to formally establish such floodplain lines from University Boulevard to the Capitol Beltway. Complaint C71-077 was dismissed because of lack of evidence of Smith's ownership or control of the property referred to therein. By Supplemental Order of February 5, 1971, the Department informed Smith that it had determined the limits of the 50 year floodplain for Indian Creek as it indicated that it would do in its December 17, 1970 Order, and directed him to obtain a permit before dumping or placing any matter within that established floodplain. At the conclusion of the June 21, 1971 hearing, which was requested by Smith as a follow up of the February 5, 1971 Order and as a sequel to the April 26, 1971 letter, the hearing officer found that Smith had deposited concrete and other debris in the floodplain of Indian Creek in violation of the Water Resources Law and the Department's regulations; that such deposition had an adverse effect on the free flow of the waters of Indian Creek; that Mr. Smith had not obtained a permit to construct waste treatment facilities and that regulation of Smiths activities in the floodplain will not so hamper his operations as to be prohibitive. This appeal is taken from the Order and Supplemental Order of the Department as referred to hereinabove, and Smith suggests to the Court that the Department has violated his rights as guaranteed by the Fifth and Seventh Amendments to the U.S. Constitution as made applicable to the States by the 14th Amendment and Articles V and XXIII of the Maryland Declaration of Rights, in that his property is being taken for public use without just compensation, without due process of law, without equal protection of the laws and without trial by jury. He also suggests that substantial of his rights have been prejudiced because the administrative findings, inferences, conclusions and orders are in excess of statutory authority and jurisdiction of the Department; made upon unlawful procedure; that the Department made findings and orders unsupported by competent, material and substantial evidence in view of the entire record as submitted; made findings and orders against the weight of competent, material and substantial evidence; made findings and orders unsupported by the entire record as submitted and made findings and orders and acted in other manners affected by error of law. With these contentions the Court disagrees. The record of the administrative hearing clearly shows that there was substantial, competent, material evidence, both testimonial and pictorial, supportive of the hearing officers' findings and conclusions that there was sediment pollution by Smith of tributaries of Little Paint Branch, one of the waters of the State as alleged in Complaints C71-074, 075, 076, and 078, although not of such intensity as would violate the settleable solids standard. Section 24(b) of Article 96A defines wastes as industrial waste and all other liquid, gaseous, solid or other substances which will pollute any waters of this State while Section 26(a)(1) of Article 96A declares it unlawful for any person to cause pollutions of any waters of the State or to place or cause to be placed any wastes in a location where they are likely to cause pollution of any waters of the State. Therefore Smith's placement of sand and gravel piles adjacent to and in locations where they are likely to cause pollution is shown by the pictorial and testimonial evidence in this case and is sufficient to invoke the corrective authority of the Department. The record will further show that there was sediment pollution of Indian Creek, one of the waters of the State, by erosion of sand and gravel stockpiles and by leakage from a pipe carrying dredged material, andthat concrete and concrete washings had been discharged into the floodplain of Indian Creek as alleged in C71-103, [3 ELR 20583] notwithstanding that the Department had not, prior to February 5, 1971, established the floodplain limits of Indian Creek. As Dr. Mueller stated, the Indian Creek floodplain is well defined irrespective of what the time period (50 year 100 year designation) might be since a floodplain is a flat area near a stream which is subject to flood. The Water Pollution Control Commission was established by Chapter 697 of the Laws of 1947 and codified as Sections 28 through 37 of Article 19A of the Code. Under that act the commission was empowered to adopt regulations to effectuate the purpose of the act and pursuant to that power adopted regulation IV, which provided among other things, that industrial wastes before being discharged into any waters of the State must not contain settleable solids in excess of 400 parts per million (p.p.m.). It was because of Smith's violation of that regulation that the State sought an injunction before Judge Gray, in 1950. That standard of water quality still prevails. By Chapter 73 of the Laws of 1964, which was subsequently codified as Article 96A of the Code, the Department of Water Resources was created and endowed with certain powers and duties among which were those powers and duties formerly exercised by the Water Pollution Control Commission. When the Department determined that it had reasons to believe that Smith had committed violations of the Water Pollution Abatement Act, it caused to be served upon him, by certified mail, written complaints referring him to Section 23 to Section 29 of Article 96A of the Code as amended and then in effect, which was a codification of Chapter 243 of the Laws of 1970. This method of notice was prescribed by the legislature. See Section 28(a)(3) of Article 96A. The language of the complaints to Smith, that "the Department of Water Resources has determined that a pollution violation has occurred" affords no grace to him inasmuch as judicial due process requirements had been satisfied by providing him with notice of the alleged violations and an opportunity to be heard thereon. Accrocco v. Splawn, 264 Md. p. 534. Furthermore, Section 28(b) of Article 96A then in effect provided that persons aggrieved by an Order of the Department could obtain judicial review pursuant to the provisions of Sections 255 and 256 of Article 41. Nor does the failure of the Department to specify the numerical subsection of law alleged to be violated afford sanctuary to Smith. The notices to Smith referred him to the subsection of law relating to "Pollution Abatement" and informed him of the date, place and nature of the alleged violations set forth in the complaints and is constitutionally and procedurally sufficient in alerting him to the proscribed activity in which he was allegedly engaged. Smith's further contention that he was denied the equal protection of the laws and substantive due process of law is without merit. The 14th Amendment's guarantee of due process and equal protection of the laws does not prohibit a state from exercising its police powers. Chapter 243 of the Laws of 1970 is a legitimate exercise of the legislature's police power to regulate and restrain the use of property that would be inconsistent with or injurious to the rights of the public, of property within the control of the State. Such regulation and restraint is not an unconstitutional taking of private property as prohibited by the Fifth Amendment to the Constitution of the U.S. and Article XXIII of the Declaration of Rights of Maryland, nor a violation of the Fourteenth Amendment to the Federal Constitution. Potomac Sand and Gravel Company v. Governor, et al., 266 Md. 364. The State indeed has an interest in the preservation of its waters and the quality thereof. The legislature recognized that pollution constitutes a menace to public health and welfare, among other things, and by the enactment of Chapter 243 of the Acts of 1970 made it unlawful for any person, as defined therein, to cause pollution of waters of the State or to place or cause to be placed any wastes in a location where they are likely to cause pollution of any waters of the State or to discharge any wastes into any waters of the State which would violate effluent standards or reduce the quality of such waters below the water quality standards established therefore by the Department. Such action was declared to be a nuisance. (Underscoring added.) As the Court said in Potomac Sand and Gravel Company v. Governor, supra, p. 373, "The current trend is for the Courts to consider the preservation of natural resources as a valid exercise of the police powers." There is no natural resource more necessary to human life than water. The three prong rule pertaining to the State's exercise of its police powers set forth in Lawton v. Steel, 152 U.S. 133, that the interests of the public generally, as distinguished from those of a particular class, require such interference; that the means are reasonably necessary for the accomplishment of the purpose, and that the means are not unduly oppressive upon individuals is met in this case. Notwithstanding Smith's urging that the implementation of the Department's Orders will put him out of business the record before the Department does not indicate that such is a logical or necessary result. Inasmuch as the rule of Lawton supra, is met, the restriction of the use of Smith's property is not a taking by eminent domain requiring compensation by jury but a legitimate exercise of its power to legislate to protect the life, health, morals and welfare of its citizenry. In this circumstance Articles V and XXIII of the Declaration of Rights is not aborted nor is the Seventh Amendment to the U.S. Constitution invocable, for it has not been held to be applicable to the States. Smith raises the question whether the acts complained of by the Department (now the Department of Natural Resources) are within the scope of Sections 23 through 29D of Article 96A. Section 24(a) of Article 96A states that pollution is: Such contamination or other alteration of the physical, chemical or biological properties, of any waters of the State, including change in temperature taste, color, turbidity, or odor of the waters, or such discharge or deposit of any organic matter, harmful organisms, liquid, gaseous, solid, radioactive, or other substance into any waters of the State as will render such waters harmful, detrimental or injurious to public health, safety or welfare, or to domestic commercial, industrial, agricultural, recreational or other legitimate beneficial uses, or to livestock, wild animals, birds, fish or other aquatic life. Under paragraph (e) of Section 24, waters of the State include all waters subject to State jurisdiction. Such of these waters are rivers, streams and "the floodplain of free flowing waters on the basis of a fifty (50) year flood frequency." Smith's sand and gravel operations produced, as described in complaints C71-074, C71-075, C71-076, C71-078, sediment which found its was into Indian Creek and tributaries of Little Paint Branch. His operations also produced, as described in complaint C71-103, concrete deposits, concrete washings, and sediment deposition from erosion and leakage in the area of his property designated as a floodplain area of Indian Creek. Thus, the Court finds that the Department could properly find these sedimentary and concrete deposits and washings, which are directly related to the Smith Sand and Gravel operations, are pollutants as defined by Section 24 of Article 96A, and as such, the control of their influx into Indian Creek and the tributaries of Little Paint Branch and the floodplain of Indian Creek is authorized by Article 96A § 23-29. Another issue raised by Smith is whether the Department on July 27, and August 3, 1970 legally exercised its administrative powers against him under Section 28(a) of Article 96A, when the Department in violation of Section 25 had failed to take certain prerequisite steps. He lists these prerequisites as: (a) Development of comprehensive program for the prevention, control and abatement of pollution. (b) Previously advise appellant of the purpose of the subtitle. (c) Participate in or conduct studies, research and demonstrations relating to water pollution by sediment deposition and causes, prevention, control and abatement thereof. (d) Collect and disseminate information relating to water pollution by sediment deposition and the prevention, control and abatement thereof. (e) Adopt and promulgate water quality standards and effluent standards as required by Section 25 and 27. (f) Issue conditions for the discharge of waters into the waters of the State. The Court notes that these "prerequisites" are essentially several of the provisions of Sections 25 of Article 96A that delegate [3 ELR 20584] certain powers and duties to the Department.It is not mandatory that the Department exercise any one or more of those powers as a preliminary step to exercising other powers in Section 25, or its powers under other sections of the subtitle. Subsection (a) through (n) of Section 25 are in pari materia and therefore must be construed as having equal status. The alleged prerequisites are essentially subsections b, c, e, f, g, and 1 of Section 25. Subsection (i) of Section 25 authorizes the Department to issue, modify, or revoke orders "prohibiting discharges of wastes into waters of the State . . . or the adoption of other reasonable remedial measures to prevent, control or abate pollution or undesirable changes in the quality of the waters of the State." The Court finds that the procedure for exercising this power of the Department is delineated in Section 28, and concludes that since subsection (i) is to be construed as being in pari materia with the other subsections of Section 25, it is not a requirement of the Department that it exercise any one delegated power as a prerequisite to issuing complaints, cease and desist orders, or orders made pursuant to an administrative hearing and evidentiary findings. Smith suggests that the Department has failed to adopt standards for defining sediment pollution. This is not consistent with the evidence for the standard of 400 p.p.m. found to be applicable to Smith by Judge Gray has not been shown by him to have been changed. It appears that this standard still prevails in instances of pollution by settleable solids. In this connection the record is devoid of evidence of measurement by the Department of the settleable solids emanating from Smith's operations. Neither Mr. Kanerva, Mr. Norton, Dr. Mueller or Mr. Weber tested the quality of the waters at issue herein, to determine whether there was a violation of the standard. Jurisdiction of the Department over Smith's operations is questioned in light of the ruling of Judge Gray in the 1950 case, Equity Number A-2710. These questions are: 1. Does the retention by the Circuit Court for Prince George's County in 1950 of jurisdiction over Smith's sediment control system oust the Department of Natural Resources (Water Resources) of administrative jurisdiction relating to said system? 2. Does not the Circuit Court decree in 1950 ordering the use by Smith of the sediment control system prohibit the Department from ordering Smith to stop using the sediment control system? 3. Does not the Department's formal approval of the system in 1950 and again in 1963 plus its continued supervision thereof over twenty years constitute all the approval or permission that is required? Judge Gray's decision dealt with application of the pollution of Indian Creek by siltation; the quality control standards of 400 p.p.m. settleable solids in the waters of Indian Creek, and the proper enforcement of that standard. The measures for meeting that standard set by Judge Gray resulted in Mr. Smith's "sediment control system". The "Pollution Abatement" subtitle of Article 96A authorizes the Department to control through administrative means those acts, incidents, and violations of the subtitle which during 1950 could have been enforced through equity proceedings in the Circuit Court. It is also noted that the subtitle provides broader measures for pollution control and abatement than did Chapter 697 of the Acts of 1947. The case currently before it is addressed to the issue of pollution by means of causing alteration of the physical properties of those waters of Indian Creek and tributaries of Little Paint Branch, of which there was substantial evidence from which the Department could take notice that the changing of the physical properties of the waters will render such water harmful, detrimental or injurious to public health, safety or welfare, rather than pollution by discharging settleable solids therein in excess of that standard. The Court is also of the view that jurisdiction of the Department is not divested because of the prior Order of this Court. Under the appropriate sections of the Pollution Abatement Subtitle of Article 96A, and specifically the "procedure upon violation" set forth in Section 28, the Department can require that Smith modify or terminate the use of his sediment control system, notwithstanding that the Department has approved of the operations of the system for more than 20 years. In approaching the issue, whether the Pollution Abatement subtitle authorizes the Department to regulate floodplain construction, the Court has found floodplains to be included under the definition of pollution in Section 24. It is needless to say that the constriction of the flow of water by construction or fill in the floodplain poses a threat to the safety of the public and is subject to control by the means set forth in the Subtitle. Therefore, the Regulations of the Department prohibiting construction in floodplain areas without first obtaining a permit does not constitute an unreasonable restriction or unlawful taking without compensation. Under Section 25 (i) and Section 28 the Department may prohibit construction in the floodplain area of the Smith property. Regulation 8.05.03.05 of the Rules and Regulations promulgated by the Department places the onus upon the applicant to present data and information in justification of receiving a permit to construct upon or fill on a floodplain. Section C of that regulation entitled "Information Required for Permit" and regulation 8.05.03A entitled "Application to the Department", further specify the information and studies to be made by an applicant and to be submitted with the application for a permit. In light of these requirements and evidence before the Department the Court concludes that the issuance of a permit for construction in floodplain areas is determined on a case by case basis. Smith has not sought a permit for construction or filing within the floodplain of Indian Creek, therefore, he cannot complain at this stage that there are no regulations or standards under which a construction permit will be granted. The evidence before the Department shows that it has granted a permit for construction on the floodplain of Indian Creek. Although standards for issuing floodplain construction permits may not in fact exist, their absence in light of the above mentioned regulations and Smith's non-application for a permit do not warrant a finding that the Department's actions regarding Smith's property in the floodplain area was an unreasonable restriction or an unlawful taking without compensation. The Appellant next asks whether the Department may pursuant to regulation 8.05.03.05, cause all existing and future activities in the floodplain area in question to be discontinued until studies are undertaken to establish the standards by which floodplain encroachment limits may be determined. In light of the testimony of Dr. Meuller and Mr. Norton presented at the Administrative hearings as well as photographs exhibited by Dr. Mueller, there was sufficient evidence before the hearing officer upon which he could find and did find pollution by Smith of the floodplain of Indian Creek as alleged in complaint C71-103. Photographs in evidence show the depositing of washings from concrete trucks as well as concrete flowing to the edge of Indian Creek. This, in conjunction with the testimony of Mr. Norton projecting the extent of the 50 year floodplain (1800 feet wide) of Indian Creek, establishes lines within which the Department may stop existing and future activities, notwithstanding that it had not formally established the lines of the floodplain prior thereto. As noted above, Smith has not applied for a permit as required by regulation 8.05.03.05. Mr. Norton indicated that Mr. Smith could obtain a permit if Prince George's County and the Department could agree upon an encroachment limit. He further indicated that such might be done and that the limitation of the encroachment would be determined by a hydrological study. He stated that no study had been made, but it was his opinion that Indian Creek is probably high priority in future studies, and because of this, if Mr. Smith applied for a permit it was likely that the would be denied such or held in abeyance until a determination of the effects of the construction could be made.Mr. Norton noted in this regard that due to the background information prepared by Mr. Clark, a study could be prepared in six months depending upon priority assigned it by Mr. McKee, his superior. He further stated that if Mr. Smith came in with a study of his own, and said a certain encroachment would not increase the hazard of flooding in the area, the permit would be granted as a matter of course. In light of this testimony the Court concludes that obtaining permits for encroachment in such areas must be predicated upon the information provided by the applicant as required by regulation 8.05.03.05D. The fact that the Department under the police powers delegated to it pursuant to Section 25(i) and 28 inclusive, may prohibit floodplain encroachment [3 ELR 20585] pending a departmental study does not preclude an applicant from presenting information and evidence in compliance with the regulation and in aid of his particular case and purpose. The limitations upon use of the floodplain imposed by regulation and the limitation of flow from Indian Creek imposed by the Greenbelt Road culvert are not so restrictive as to constitute an unlawful taking of Smith's property without compensation. The evidence presented to the Court reflects that hurricane Agnes during June, 1972, was a storm of more than a 50 year frequency. However, Smith presented no evidence showing that retention of water on his property was greater at that time than at any other. The duty was his to show that the limitations referred to hereinabove amounted to confiscation rather than regulation. He failed to do so. 1. In light of the empirical data obtained from storm Agnes, should the limits of the flooplain be redetermined. 2. Is the method of calculation of the floodplain employed by the Department incorrect, unreasonable, arbitrary and a capricious. 3. Must the Department establish standards for floodplain determination before attempting to prohibit floodplain use. The evidence indicates that Mr. Smith's expert agreed that the method of calculation of the floodplain employed by the Department was the accepted method. However, its computations were made before Agnes, while Smith's computations of the floodplain of Indian Creek were made subsequent thereto. Although the difference between the elevations arrived at by the different studies is no greater than 2+ feet, this difference projected over an area 5,000 feet deep and 1800 feet wide is indeed appreciable. The Court is aware that the data from which the Department's computations were made was derived from storms occurring over the past 40 years, but not Agnes. It is felt that the immediate data resulting from the retention of the Agnes waters forms a more enlightened basis for the determination of the floodplain of Indian Creek. Therefore, the Court adopts the limit of the 50 year floodplain along the east side of Indian Creek as established by the testimony of Mr. B. Edward Prescott. Those limits are:
In any case where a violation of a provision of this subtitle has occurred, and the existance of such violation has been finally determined, the Department shall promptly issue an order requiring a correction of each violation found to have occurred, and the Department shall secure compliance with the provisions of such order . . . If the violation has not been corrected and a plan for compliance submitted by the violator has not been approved by the Department . . ., the violation shall be referred to the Attorney General . . . who shall . . . take appropriate legal action to require correction of the violation. It would be imprudent for the Court to direct the removal of concrete from the floodplain. The record shows that Smith has caused or allowed the deposition or concrete dumpings on the floodplain. However, the extent of his deposition of concrete wastes are not shown. The Department is charged with the responsibility to and has authority to adopt means to secure the correction of the floodplain violations caused by the dumping of concrete and concrete wastes. In the exercise of its expertise in this area; it has prescribed corrective measures in its Order of December 17, and in addition has forbidden the further filling within the floodplain as was established by it and modified by the Court herein. The corrective measures directed by the Department to be taken would assure vegetative stabilization of the concrete fill area as requested by Citizens for a Better Environment. In light of the aforegoing, it is this 13th day of April, 1973, by the Circuit Court for Prince George's County, Maryland, ORDERED, that the Order of the Department dated December 17, 1970 and its supplemental order of February 5, 1971, be affirmed with modification of the floodplain limits along the east side of Indian Creek from University Boulevard to the Capitol Beltway as set forth hereinabove. 3 ELR 20581 | Environmental Law Reporter | copyright © 1973 | All rights reserved |