High court upholds MDE’s broad view of ‘premises’ for air tests

ANNAPOLIS – A divided Maryland high court has upheld the state environmental agency’s approval of emissions from a crematorium, even though the test for airborne toxins was conducted at the outer edge of the commercial park in Millersville and not in a concerned, adjacent business.

The Court of Appeals said the testing complied with Maryland Department of the Environment regulations, which call for the agency to evaluate air quality on a property’s “premises.”

In its 4-3 decision, the court deferred to MDE’s interpretation of its own regulation in agreeing that the crematorium’s “premises” stretch beyond its doorstep to the end of the commercial park.

The high court’s ruling was a defeat for Kor-Ko Ltd., which shares a building on Headquarters Drive with Maryland Crematory LLC and argued that an emissions test should not be conducted so far away.

But the Court of Appeals also deferred to the MDE’s expertise in holding that the agency’s evaluation of the air quality, though taken at the edge of the park, assured the safety of workers and mourners at the crematorium as well as to employees and visitors at neighboring businesses.

“Because we are reviewing the MDE’s interpretation of its own regulations, we are especially mindful of the agency’s expertise in the field,” Judge Glenn T. Harrell Jr. wrote in the court’s majority opinion, filed Wednesday.  “Accordingly, we defer to the MDE’s interpretation of ‘premises’ and conclude that it is permissible legally, and neither arbitrary nor capricious, as applied via the MDE’s decision to rely on the modeling and screening of toxin concentrations at the boundary of the commercial park on the ground, rather than requiring modeling at the rooftops of any building within the complex.”

MDE spokesman Jay Apperson declined to comment Friday on the court’s decision.

Kor-Ko, a water- and sewer-line contractor, had raised concerns that the incineration of human remains produces toxic pollutants, including arsenic, chromium, dioxins and mercury, meaning emissions should be measured in the companies’ shared building and not at the edge of the commercial park.

‘Illogical’ definition

Writing for the three dissenters, Judge Shirley M. Watts assailed the majority for deferring to what she called MDE’s too-broad interpretation of “premises,” which ill-serves the goal of ensuring the safety of air quality in businesses that share the same building as the company being tested.

“It is the installations and sources of toxic emissions that are key to determining what the premises are, not other areas entirely unassociated with the installations and sources of toxic emissions,” Watts wrote.

“Indeed, in the context of this case, it would be illogical for ‘premises’ to mean a whole commercial park development where the installation or source of toxic emissions will be the crematory located in only one suite of the commercial park and where the other suites do not contain installations or sources of toxic emissions that would need to be regulated,” Watts added. “In other words, the entire commercial park is not an installation or source of toxic emissions, and it strains reason to conclude that the entire commercial park must be the ‘premises’ under (MDE regulations).”

After holding a public hearing and accepting public comments, MDE approved the crematorium’s construction permit July 24, 2013. Kor-Ko filed an appeal of the approval three weeks later in Anne Arundel County Circuit Court, challenging MDE’s testing as being conducted too far away.

When the circuit court agreed with Kor-Ko in September 2014, MDE sought review by the Court of Special Appeals.

The intermediate court sided with the agency’s interpretation of “premises,” a decision affirmed by the Court of Appeals.

Neither Kor-Ko’s attorney, John F. Dougherty, nor its vice president, John E. Rothamel, returned telephone messages seeking comment Friday on the court’s decision. Dougherty is with Kramon & Graham P.A. in Baltimore, and Rothamel is a named party in the company’s appeal.

Harrell was joined in the majority opinion by Chief Judge Mary Ellen Barbera and Judges Michele D. Hotten and Joseph M. Getty.

Harrell, a retired jurist, was sitting by special assignment in place of Judge Sally D. Adkins. Adkins did not publicly disclose the reason for her recusal.

Judges Clayton Greene Jr. and Robert N. McDonald joined Watts’ dissent.

The high court rendered its decision in Kor-Ko Ltd. and John E. Rothamel v. Maryland Department of the Environment, No. 23, September Term 2016.