WILLIAM CONNELLY, United States Magistrate Judge.
In the Memorandum Opinion and Order of September 28, 2011 this Court denied the Board of County Commissioners of St. Mary's County's (hereinafter "the County") motion for partial summary judgment and granted in part and denied in part Marcas, L.L.C.'s (hereinafter "Marcas") motion for partial summary judgment. ECF Nos. 107-108. On February 2, 2012 Marcas moved for leave to file a Third Amended Complaint which the County opposed. On April 16, 2012 the Court granted Marcas' motion. The Third Amended Complaint consisted of twelve (12) counts. Marcas later moved for partial summary judgment regarding its takings claims. After a motions hearing, the Court dismissed Counts XI and XII on December 28, 2012. See ECF No. 153. Pending before the Court and ready for resolution are the County's motion for partial summary judgment (seeking judgment as to Counts IV, V, VIII, IX and X) [ECF No. 159] and Marcas' cross-motion for partial summary judgment (seeking judgment as to Counts I, VI and VII) [ECF No. 163]. No hearing is deemed necessary and the Court now rules pursuant to Local Rule 105.6 (D.Md. 2011).
The Court outlined the factual background in detail in the Memorandum Opinion of September 28, 2011. ECF No. 107 at 2-52; see Marcas, L.L.C. v. Board of County Comm'rs, 817 F.Supp.2d 692, 696-730 (D.Md.2011). Other facts pertinent to the resolution of the cross-motions for partial summary judgment shall be discussed below.
A motion for summary judgment will be granted only if there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In other words, if there clearly exist factual issues "that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party," then summary judgment is inappropriate. Anderson, 477 U.S. at 250, 106 S.Ct. 2505; see also Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir.1987); Morrison v. Nissan Motor Co., 601 F.2d 139, 141 (4th Cir. 1979); Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir.1950). The moving party bears the burden of showing that there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(a); Pulliam Inv. Co., 810 F.2d at 1286 (citing Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.1979)).
When ruling on a motion for summary judgment, the court must construe the facts alleged in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Gill v. Rollins Protective Servs. Co., 773 F.2d 592, 595 (4th Cir.1985). A party who bears the burden of proof on a particular claim must factually support each element of his or her claim. "[A] complete failure of proof concerning an essential element ... necessarily renders all other facts immaterial." Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548.
On those issues where the nonmoving party will have the burden of proof, it is that party's responsibility to confront the motion for summary judgment with an affidavit or other similar evidence. Anderson, 477 U.S. at 256, 106 S.Ct. 2505. However, "`[a] mere scintilla of evidence is not enough to create a fact issue.'" Barwick v. Celotex Corp., 736 F.2d 946, 958-59 (4th Cir.1984) (quoting Seago v. North Carolina Theatres, Inc., 42 F.R.D. 627, 632 (E.D.N.C.1966), aff'd, 388 F.2d 987 (4th Cir.1967), cert. denied, 390 U.S. 959, 88 S.Ct. 1039, 19 L.Ed.2d 1153 (1968)). There must be "sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted).
When faced with cross-motions for summary judgment, the Court must consider "each motion separately on its own merits to determine whether either of the parties deserve judgment as a matter of law." Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir.2003) (internal quotation marks omitted). The Court applies the same standard of review. Monumental Paving & Excavating, Inc. v. Penn. Mfrs.' Ass'n Ins. Co., 176 F.3d 794, 797 (4th Cir.1999) (citing ITCO Corp. v. Michelin Tire Corp., 722 F.2d 42, 45 n. 3 (4th Cir.1983) ("The court is not permitted to resolve genuine issues of material fact on a motion for summary judgment — even where ... both parties have filed cross motions for summary judgment.") (emphasis omitted), cert. denied, 469 U.S. 1215, 105 S.Ct. 1191, 84 L.Ed.2d 337 (1985)).
The County moves for summary judgment on Count IV (Interference with Business
In support of its motion for partial summary judgment, the County has submitted the affidavit of George A. Erichsen, the County's Director of the Department of Public Works and Transportation ("DPW & T"). Mr. Erichsen has held his position since approximately December 1997 or January 1998. St. Andrew's Landfill (presently closed) was operated by DPW & T.
Mr. Erichsen reviewed the revenues, expenses and debt services for the County's municipal solid waste, rubble and recycling operations from 1986 to the end of fiscal year 2012.
Operating Operating Shortfall (-)
Fiscal Year Revenues Expenses Debt Service or Surplus (+)
1986 $21,293 $479,181 $457,888
1987 $74,476 $492,499 $418,023
1988 $98,486 $516,498 $418,012
1989 $404,331 $548,225 $50,922 $194,816
1990 $926,581 $692,381 $91,920 + $142,280
1991 $840,587 $1,075,713 $188,884 $424,010
1992 $1,820,242 $802,171 $194,360 + $823,711
1993 $1,758,327 $981,803 $189,420 + $587,104
1994 $1,765,668 $1,118,047 $263,425 + $384,196
1995 $1,762,253 $1,129,858 $308,477 + $323,918
1996 $1,682,635 $1,104,906 $918,394 $340,665
1997 $1,596,741 $1,017,641 $884,881 $305,781
1998 $1,445,979 $989,150 $952,025 $495,196
1999 $475,729 $1,266,725 $964,990 $1,755,986
2000 $420,501 $1,712,886 $961,112 $2,253,497
2001 $169,509 $1,745,130 $1,219,710 $2,795,331
2002 $197,912 $1,979,150 $1,331,776 $3,113,014
2003 $246,677 $2,121,953 $1,374,490 $3,249,766
2004 $288,939 $2,320,257 $1,170,588 $3,201,906
2005 $447,438 $2,533,968 $1,237,824 $3,324,354
2006 $467,417 $2,850,997 $767,075 $3,150,655
2007 $462,878 $3,449,013 $1,081,034 $4,067,169
2008 $2,713,065 $4,102,621 $1,362,168 $2,751,724
2009 $2,658,922 $4,036,131 $1,341,453 $2,718,662
2010 $2,678,119 $3,906,742 $1,074,568 $2,303,191
2011 $2,704,893 $3,733,825 $1,060,568 $2,089,500 2012 $3,496,321 $3,548,091 $1,058,252 $1,110,022
ECF No. 159-8 at 2-9 (Erichsen Aff. ¶¶ 4-30). For each fiscal year Mr. Erichsen concludes by declaring, "This does not include consideration of the administrative overhead expenses, vehicle maintenance, equipment replacement, utilities, or any related capital project expenditures that did not result in additional debt service."
Historically, the collection and disposal of garbage by a municipality is considered a governmental rather than a private function. The assessment of a fee for materials deposited at a landfill does not automatically mean the landfill is a private function. In Tadjer v. Montgomery County, the Court of Appeals of Maryland noted, when assessing a government operated landfill which charges a fee,
300 Md. 539, 549-50, 479 A.2d 1321, 1326 (Md.1984), superseded by statute on other grounds as recognized in Flaherty v. Weinberg, 303 Md. 116, 136, 492 A.2d 618, 628 (1985). Although between 1986 and 2012 there were five years when DPW & T operated the County's municipal solid waste, rubble and recycling operations at a surplus, for the vast majority of those 27 years, these facilities operated in the red. In its opposition Marcas notes the County began shutting down St. Andrew's Landfill in 1997. "According to the County's Declaration of George Erichsen, during the ten years prior to 1997, the County made a `surplus' from the Landfill five times — or 50% of the time. During the five years prior to 1997, the County made a surplus four times — or 80% of the time." ECF No. 163-1 at 41 (citations omitted). In the Memorandum Opinion of September 28, 2011, the Court noted, "[t]he County discontinued waste disposal in Cells 1, 2 and 4 in November 1997 and discontinued waste disposal in Cell 3 in February 1999. In June 2001 the disposal of rubble was discontinued." ECF No. 107 at 2. In its reply the County states the data presented by Mr. Erichsen is not skewed as Marcas contends. "[L]ong before landfilling operations ceased at St. Andrews Landfill, the County was regularly and substantially subsidizing its operations. Moreover, the County's ongoing costs for the Landfill are very real and must be a part of any consideration as to whether the Landfill was operated as a profit-making enterprise." ECF No. 168 at 20 (citation omitted).
In reviewing Mr. Erichsen's affidavit the Court notes Mr. Erichsen did not identify the cost of operating the St. Andrew's Landfill exclusively. The costs and revenues include all municipal solid waste, rubble and recycling operations for St. Mary's County as operated by DPW & T. Second, as the entity responsible for remediation at the St. Andrew's Landfill, the Court finds it is appropriate for DPW & T to include those real costs as part of DPW & T's operating expenses. Third, this Court requested evidence about the costs and revenues associated with operating the landfill in accordance with Tadjer, 300 Md. at 549, 479 A.2d at 1326. But this Court is mindful of a proclamation by the Tadjer court: "[t]he fact that a fee was charged for material deposited is not necessarily
Additional evidence supporting the operation of St. Andrew's Landfill as a governmental function can be found in legislation. The County has rules and regulations for solid waste. The recitals to those rules and regulations begin as follows:
ECF No. 159-7 at 3. St. Andrew's Sanitary Landfill was among the County's public solid waste acceptance facilities. Id. at 6.
Mayor of Baltimore v. State ex rel. Blueford, 173 Md. 267, 276, 195 A. 571, 576 (1937). This test has also been defined as "whether the act performed is for the common good of all or for the special benefit or profit of the corporate entity." Tadjer, 300 Md. at 547, 479 A.2d at 1325. Unquestionably, the operation of St. Andrew's Landfill was for the common good, to benefit the health and welfare of the residents of St. Mary's County.
Based on all the evidence presented, this Court finds the operation of St. Andrew's Landfill was an exercise of the County's governmental authority. "Where ... a municipality is engaged in the performance of a governmental function as an agent of the state, the same principle which protects the state from liability also protects the municipality." Blueford, 173 Md. at 271-72, 195 A. at 574. A municipality enjoys immunity from certain tort actions based on activities categorized as governmental. Housing Auth. v. Bennett, 359 Md. 356, 359, 754 A.2d 367, 368 (2000), superseded by statute on other grounds as
By way of background, after this Court issued its September 28, 2011 Memorandum Opinion and Order, Marcas moved for leave to file a Third Amended Complaint. See ECF No. 112. Among the proposed amendments were three new counts regarding the constitutionality of the statutory cap set forth in Maryland's Local Government Tort Claims Act ("LGTCA"), Md. Code Ann., Cts. & Jud. Proc. § 5-303(a) (Lexis Nexis 1974, 2013 Repl. Vol.). Marcas had raised this issue in its April 2009 motion for partial summary judgment filed with this Court and in its December 2009 brief to the Court of Appeals of Maryland on the certified questions. Neither court addressed this issue. In granting Marcas' motion for leave to file a Third Amended Complaint on April 16, 2012, this Court acknowledged, due to inadvertence, it did not address the issue of the constitutionality of the LGTCA damages cap. In reviewing the Court of Appeals of Maryland opinion regarding the two certified questions, the issue raised by Marcas had not been directly addressed. See ECF No. 127.
On May 3, 2012 the County moved to dismiss for failure to state a claim the newly added five counts of Marcas' Third Amended Complaint including the three counts concerning the constitutionality of the LGTCA's statutory liability limitation. See ECF No. 131. In the Order of June 11, 2012 this Court denied the County's motion on the grounds that the issues have been previously considered and rejected. See ECF No. 133.
For a third time the County challenges Counts VIII, IX and X. The Court considers this issue anew.
The Court has reviewed Marcas' (Appellee) Brief and the County's (Appellant) Reply Brief to the Court of Appeals of Maryland on the certified questions from this Court. Marcas contends "interpreting the LGTCA to cap Marcas' damages at $500,000 would allow an unconstitutional taking of the property." Brief for Appellee, Board of Cnty. Comm'rs v. Marcas, L.L.C. (Md.2009) (No. 3), 2009 WL 5196422 at *28. In its Reply Brief the County noted that "it does not appear that Marcas has been deprived of all use of the Property such that application of the LGTCA cap would result in an unconstitutional taking in this case. Accordingly, for this further reason, the Court need not address this issue." Reply Brief for Appellant, Board of Cnty. Comm'rs v. Marcas, L.L.C. (Md. 2010) (No. 3), 2010 WL 256598 at *14.
The Court of Appeals of Maryland has observed that "[a] property owner who is
The United States Supreme Court recognizes a distinction in the nature of a physical intrusion by the government onto private property. "[T]his Court has consistently distinguished between flooding cases involving a permanent physical occupation, on the one hand, and cases involving a more temporary invasion, or government action outside the owner's property that causes consequential damages within, on the other. A taking has always been found only in the former situation." Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 428, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982).
This case does not involve a permanent physical occupation of Marcas' property by the County. Despite the ongoing emission of methane gas from St. Andrew's Landfill, Marcas has the power to exclude the County from possession and use of its land. This is best illustrated by DPW & T having to obtain Marcas' permission to enter Marcas' land to install monitoring wells and to collect the data from those monitors. See, e.g., ECF No. 79-26 at 2-4 (August 5, 2003 Right-Of-Entry Agreement). "The power to exclude has traditionally been considered one of the most treasured strands in an owner's bundle of property rights." Loretto, 458 U.S. at 435, 102 S.Ct. 3164. Second, although the methane gas has interfered with Marcas' intended use of certain portions of its property for residential dwellings and commercial use, Marcas has not been denied forever the power to control the use of its property. Finally, despite the migration of methane gas onto its property, Marcas' property is not empty of any value. This is illustrated by the fact that Marcas has sold portions of its land for construction although not as originally planned due to the methane contamination. Remediation efforts to reduce the methane contamination below the lower explosive level ("LEL") and eliminate methane emissions are ongoing although at a much slower rate than either side envisioned. The Court therefore finds Marcas has not asserted a takings claim.
Marcas argues the partial immunity granted by the LGTCA to the County, whereby damages, are capped for nuisance and trespass claims, conflicts with the constitutional right to just compensation for a taking. First, as noted above, the methane migration from St. Andrew's Landfill to Marcas' property does not constitute a taking. Second, any compensation Marcas may be entitled to as a result of the methane migration onto portions of its property shall be determined in the State court condemnation action presently pending before the Circuit Court for St. Mary's County. Third, the County is not immune from liability for nuisance and trespass.
The LGTCA was enacted to shield local government employees from excessive litigation. Ennis v. Crenca, 322 Md. 285, 294, 587 A.2d 485, 490 (1991). The General Assembly of Maryland "may, in its wisdom, limit tort damages prospectively...." Longtin, 419 Md. at 490, 19 A.3d at 883. Local governments (not their officers
Although the Court of Appeals of Maryland has not specifically addressed the constitutionality of the monetary cap on liability under § 5-303(a)(1) of the LGTCA, that court has determined "the 180-day notice requirement of Section 5-304(a) of the LGTCA is constitutional under the Federal Constitution and the Maryland Declaration of Rights as applied to minors where the underlying local governmental action was governmental as opposed to proprietary in nature." Rios v. Montgomery Cnty., 386 Md. 104, 120, 872 A.2d 1, 10 (2005) (emphasis added) (footnote omitted). This Court has found the operation of St. Andrew's Landfill was governmental as opposed to proprietary in nature. The Rios court explained the notice requirement allowed a local government to project its potential costs for future budgeting. Id. at 131, 872 A.2d at 17. Similarly, the LGTCA's monetary cap on liability provides a remedy to those injured by the acts of local government officers and employees performed within the scope of employment and without malice, Faulk v. Ewing, 371 Md. 284, 298, 808 A.2d 1262, 1272 (2002); limits the financial remedy but not at such a low level "to equate with cutting off all remedy," Longtin, 419 Md. at 520, 19 A.3d at 901 (Harrell, J., concurring & dissenting); and ensures the financial burden for the injury is borne by the local government ultimately responsible for the public official's actions, Ashton v. Brown, 339 Md. 70, 108, 660 A.2d 447, 466 (1995). The legislative history explains the rationale behind the liability limitation.
Board of Cnty. Comm'rs v. Marcas, L.L.C., 415 Md. 676, 686-87, 4 A.3d 946, 952 (2010) (quoting Office of the Governor, Governor's Legislative Office, Briefing Paper H.B. 253/S.B. 237, 9-10).
In construing a notice provision is another act, comparable to the LGTCA notice requirement, the Court of Appeals of Maryland declared,
Hansen v. City of Laurel, 420 Md. 670, 685, 25 A.3d 122, 131 (2011) (quoting Neuenschwander v. Washington Suburban Sanitary Comm'n, 187 Md. 67, 76, 48 A.2d 593, 599 (1946)).
The General Assembly adjusted the relative rights of citizens, like Marcas, and
The Court of Appeals of Maryland did not specifically address Marcas' assertion that application of the LGTCA damages cap to Marcas' nuisance and trespass claims constitutes an unconstitutional taking of Marcas' property. This Court can only infer that based on previous decisions concerning the LGTCA as well as the legislative history of this Act, the Court of Appeals of Maryland rejected Marcas' challenge in reaching its decision. In short, that court does not find the LGTCA damages cap constitutes an unconstitutional taking. And this Court shall not second-guess Maryland's application of its own laws. National R.R. Passenger Corp. v. Rountree Transp. & Rigging, Inc., 422 F.3d 1275, 1282 (11th Cir.2005).
Moreover, if there was any basis supporting Marcas' constitutional challenge, the Court of Appeals of Maryland would not have issued a decision interpreting and applying the LGTCA's terms of "individual claim" and "same occurrence" in a manner which would violate either the Constitution of the United States or the Maryland Constitution. See Rios, 386 Md. at 121, 872 A.2d at 10 ("When determining a statute's constitutionality under the Equal Protection Clause or Due Process Clause, unless a suspect or quasi-suspect class is created or a fundamental important right is implicated, the appropriate standard of review of constitutionality is whether there is a rational basis for the created class or limited process afforded. [The Court of Appeals of Maryland consistently follows the] `principle that a court will, whenever reasonably possible, construe and apply a statute to avoid casting serious doubt upon its constitutionality.'") (citations omitted). For the above reasons the County is entitled to judgment as to Count VIII (42 U.S.C. § 1983 — The LGTCA Damages Cap, as Applied, Violates the Takings Clause of the Federal Constitution), as to Count IX (Common Law — The LGTCA Damages Cap, as Applied, Violates the Maryland State Constitution) and as to Count X (Declaratory Judgment
In its reply the County refutes Marcas' assertion that it was unaware of the contamination from St. Andrew's Landfill before September 2004. The County claims Cazimir Szlendak, the indirect owner of Marcas, was notified of migration of landfill contamination onto Marcas' property by a letter dated March 7, 2000. ECF No. 168-7 at 2. Mr. Szlendak's attorney wrote an August 13, 2011 letter to
The March 7, 2000 letter from DPW & T states in pertinent part,
ECF No. 168-7 at 2.
The issue of possible contamination of the groundwater from the landfill was alleged in Marcas' Second Amended Complaint and admitted by the County as noted in the Memorandum Opinion of September 28, 2011.
ECF No. 107 at 3 (footnotes omitted).
The contamination of groundwater is not the crux of this litigation. Rather it is the migration of methane gas, vinyl chloride and other volatile organic compounds ("VOCs") from St. Andrew's Landfill onto Marcas' property. This is the contamination Marcas alleges, and this Court found, Marcas had no notice of before September 8, 2004. The March 7, 2000 notification of groundwater contamination is not relevant to the migration of methane gas. In its
In the Memorandum Opinion of September 28, 2011 this Court entered judgment (liability only) in favor of Marcas on Count I. "It is not clear to the Court whether the amount claimed ($35,751.33) includes both pre-and post-September 8, 2004 investigative costs or only post-September 8, 2004 investigative costs. Marcas therefore will need to supplement the record with proof of its expenses." ECF No. 107 at 82.
Marcas now moves for judgment as to damages on Count I. The amount Marcas seeks is $35,751.33. Marcas' environmental expert, J. Lawrence Hosmer, P.E., describes the investigative and monitoring costs Marcas incurred.
ECF No. 163-4 at 2-3 (Hosmer Decl. ¶¶ 4-6).
In its opposition the County does not dispute the amount of the investigation and monitoring costs Marcas incurred. The County however reasserts its arguments that Marcas is not entitled to judgment as to liability on Count I because (a) Marcas' alleged response costs were not necessary and were incurred as part of the commercial development of the property, not in response to any threat to public health and (b) Marcas has failed to demonstrate substantial compliance with the National Contingency Plan ("NCP") for its investigative costs. ECF No. 168 at 4.
As noted in the Memorandum Opinion of September 28, 2011, the parties agreed that three of the four elements to satisfy a claim under 42 U.S.C. § 9607(a) were established: (1) a release of hazardous substances, i.e., methane and VOCs, (2) St. Andrew's Landfill is a facility under 42 U.S.C. § 9601(9), and (4) the County is the owner and operator of the facility under 42 U.S.C. § 9601(20)(A). See ECF No. 107 at 73-74. The Court now reconsiders the third element, the alleged response costs were necessary and in compliance with the NCP.
The Court has re-read Marcas' memorandum in support of its first motion for partial summary judgment as to Count I, see ECF No. 76-1 at 26-28, and its reply, see ECF No. 83 at 10-15. To be in substantial compliance with the NCP, Marcas' response action must satisfy the requirements of § 300.700(c)(5, 6). Marcas has not presented any evidence that it complied with the NCP requirement regarding community relations/public comment. 40 C.F.R. §§ 300.430(c), (f)(3), 300.700(c)(6). On this basis alone, the previously entered judgment (liability only) in favor of Marcas as to Count I shall be vacated.
In addition, the County challenges Marcas' contention that its investigative and monitoring costs were necessary. The County asserts these costs were, in fact, duplicative of work already performed by the MDE. The record clearly establishes the MDE inspecting St. Andrew's Landfill as early as 1999 regarding leachate seeps flowing from the landfill to adjacent waters. See ECF No. 107 at 4. The MDE is the lead agency
Because it has established the statutory elements of a Resource Conservation and Recovery Act ("RCRA") claim under 42 U.S.C. § 6972(a)(1), Marcas seeks injunctive relief. The County opposes the imposition of any injunctive relief on the grounds that (a) the offending activity, i.e., an actively operating landfill, has ceased and (b) because remediation is underway and has been ongoing, there is nothing for the court to restrain. In its reply Marcas asserts the mere fact that remediation efforts are ongoing does not preclude relief under RCRA. Injunctive relief is appropriate, even if remediation is ongoing, to require a party to install additional remediation systems.
When a cognizable citizen suit has been filed under 42 U.S.C. § 6972(a)(1), a district court has the authority "to restrain any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste... to order such person to take such other action as may be necessary, or both...." 42 U.S.C. § 6972(a)(2). A prohibitory injunction restrains a responsible party from further violating RCRA. A mandatory injunction orders the responsible party to take some action by cleaning up or remediating the hazard. Trinity Indus., Inc. v. Chicago Bridge & Iron Co., 867 F.Supp.2d 754, 763 (W.D.Pa.2012); City of Colton v. American Promotional Events, Inc., 824 F.Supp.2d 1015, 1020-21 (C.D.Cal.2011); Spillane v. Commonwealth Edison Co., 291 F.Supp.2d 728, 736 (N.D.Ill.2003).
Approximately a decade after the County first became aware of methane gas migrating from St. Andrew's Landfill onto Marcas' property, there are still at least two gas monitoring wells detecting methane gas above the LEL on Marcas' property as of January 2013. See ECF No. 163-5 at 3 (SALFGW-26 & SALFGW-32). During his deposition on January 9, 2013 George Erichsen, director of DPW & T, conceded the migration of methane gas onto Marcas' property has not been abated.
ECF No. 163-3 at 4 (Erichsen Dep. 18:7-13).
Jason L. Baer, an employee of the Maryland Environmental Service ("MES"), a state agency, is an expert witness for the County. During his April 4, 2013 deposition the following colloquy occurred between counsel for Marcas and Mr. Baer:
ECF No. 171-1 at 7 (Baer Dep. 135:3-13).
40 C.F.R. § 258.23(a)(2) states,
Landfill gas remediation systems were activated at St. Andrew's Landfill by DPW & T on March 8, 2007 (Area B, Cells 1, 2 & 4) and the week of April 16, 2007 (Cells 3 & 5). See ECF No. 79-57 at 2 (E-mail from Tarr to Wechsler of 7/25/07). Although these remediation efforts have effectively reduced gas readings below the 100% LEL, methane gas above the LEL continues to migrate onto Marcas' property and/or is present at the boundary of St. Andrew's Landfill.
The Court finds a prohibitory injunction is not an appropriate remedy because the County ceased all operations at the St. Andrew's Landfill as of June 2001. See City of Colton, 824 F.Supp.2d at 1021. The Court must now determine whether a mandatory injunction is an appropriate remedy.
Both sides agree the County has implemented a remedial action plan that is ongoing. Some courts have held a mandatory injunction is not necessary when a remedial action plan is in place. See, e.g., Trinity Indus., 867 F.Supp.2d at 764. This however is not the only basis for determining whether a mandatory injunction is warranted. "Even where an approved remediation plan exists, and remediation activities are taking place pursuant to that plan, a party may still advance a claim under the Act to require a defendant to install additional remediation systems, or to perform remediation activities that the original party has not yet undertaken." Keller Transp. Inc. v. Wagner Enters., LLC, 873 F.Supp.2d 1342, 1351 (D.Mont.2012). At his April 4, 2013 deposition the County's own expert witness, Mr. Baer, declares there is more that can be done to abate the methane gas migration.
ECF No. 171-1 at 4-6 (Baer Dep. 120:12-22, 122:4-123:22).
Although Mr. Baer, on behalf of MES, makes recommendations to the County about remedial actions, the County decides which remedial actions to implement.
Id. at 3 (Baer Dep. 18:12-22).
The County's role as the decision maker is verified by a February 4, 2005 letter from Martha Hynson of the MDE to Mr. Erichsen, Director of DPW & T. "[I]t is the County's decision, with notification to the Department, which steps to implement to protect human health from the migration of methane from the landfill. The County is responsible to implement additional remediation plans if the initial steps prove insufficient to protect human health." ECF No. 76-10 at 3 (emphasis added); ECF No. 79-15 at 3 (emphasis added).
In its opposition the County notes "remediation at the site is ongoing and is being conducted under the direction and supervision of MDE." ECF No. 168 at 15. The County further argues an injunction is not appropriate "when the site is already being remediated under the supervision of the state agency." Id. at 16. What the County fails to acknowledge is its role as the decision maker. Although a state agency, MES, makes recommendations and although another state agency, the MDE, supervises, reviews and approves the County's remediation efforts, the County ultimately decides what remedial plan to implement.
The County was aware of the migration of methane gas as early as 2004,
The injunctive relief this Court intends to provide Marcas is not redundant because the County will be required to implement additional remediation measures beyond what is presently in place and as recommended by its own expert witness from MES. This case is distinguishable from Christie-Spencer Corp. v. Hausman Realty Co., 118 F.Supp.2d 408 (S.D.N.Y. 2000) because in the Christie-Spencer case the plaintiffs did not present "any evidence that further remediation measures are necessary." Id. at 420. In this case Mr. Baer explained in detail the benefits of the additional remediation measures he recommends.
Marcas did not submit a proposed order with its cross-motion for partial summary judgment listing in detail the specific injunctive relief it seeks. The Court therefore directs the parties to submit a jointly proposed injunctive order. If the parties cannot agree on the terms of a proposed injunctive order, then each party must submit a proposed injunctive order. The jointly proposed order or separately proposed orders are due within twenty (20) days of the accompanying Order.
The Court shall enter summary judgment in favor of Marcas as to Count VI (RCRA claim) as to the County's violation of 40 C.F.R. § 258.23(a)(2) only. Because there is a dispute about a possible violation of 40 C.F.R. § 258.25, judgment is not entered as a matter of law in Marcas' favor as to this section. The Court previously found against Marcas on Count VI as to an alleged violation of 40 C.F.R. § 258.61(a)(4). See ECF No. 107 at 90-98.
Marcas argues, because it has satisfied the four elements of a RCRA claim pursuant to 42 U.S.C. § 6972(a)(1)(B), it is entitled to summary judgment as to Count VII. The County opposes the entry of summary judgment in favor of Marcas. The County asserts Marcas has failed to establish a necessary element of a RCRA claim under § 6972(a)(1)(B), namely, the hazardous waste is an imminent and substantial endangerment to the health or the environment.
The operative language for commencing a civil suit under § 6972(a)(1)(B) is "any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which
ECF No. 76-10 at 2, 3; ECF No. 79-15 at 2, 3. Consistent with Meghrig v. KFC Western, Inc., 516 U.S. 479, 485-86, 116 S.Ct. 1251, 134 L.Ed.2d 121 (1996), Marcas has demonstrated the methane gas migrating from the landfill may present an imminent and substantial endangerment to health or the environment as required by § 6972(a)(1)(B).
The facts of this case are distinguishable from the cases the County cites in its opposition. In Leister v. Black & Decker, Inc., No. 96-1751, 1997 WL 378046, at *3, 1997 U.S.App. LEXIS 16961, at *9 (4th Cir. Jul. 8, 1997), the Fourth Circuit affirmed the dismissal of the Leisters' RCRA claim because, with the installation of the filtration system, there was no longer a threat to health from drinking the well water. The filtration system abated the level of organic compounds below detectable levels. Similarly, in Birch Corp. v. Nevada Investment Holding, Inc., No. 97-55282, 1998 WL 442982, 1998 U.S.App. LEXIS 14923 (9th Cir. Jun. 29, 1998), the Ninth Circuit found the contamination did not present an imminent and substantial endangerment to the health or the environment in that case. This determination was based on the testing conducted by Birch's own environmental consultant who found no significant health risk existed as well as another expert who likewise found no significant risk level. Additionally, Birch's own attorney acknowledged in a letter to a regulatory agency that Birch's remediation activities and assessment "`have led to the inescapable conclusion that the contamination poses no risk to any source of drinking water nor does it pose a health risk.'" Id. at *2, 1998 U.S.App. LEXIS 14923 at *7. Finally in Scotchtown Holdings LLC v. Town of Goshen, No. 08-CV-4720, 2009 WL 27445, 2009 U.S. Dist. LEXIS 1656 (S.D.N.Y. Jan. 5, 2009), the plaintiff alleged contamination to land it owned, and intended to develop for residential purposes, due to repeated use of road salt containing sodium chloride to remove snow and ice from the highways. This repeated application of road salt caused the groundwater beneath the land to exceed the level for safe consumption by humans. The plaintiff had to abandon its plans for residential development. The Southern District of New York determined
Unlike the unsafe level of sodium chloride in the groundwater in Scotchtown Holdings which was not presently an imminent and substantial endangerment to the health and the environment since the land would not be approved for residential development, in this case, the migrating methane gas at levels above the LEL is a present imminent and substantial endangerment to the health or the environment irrespective of the planned construction of residential and/or commercial buildings on Marcas' property. The County is well aware of the serious nature of the migrating methane gas. As Ms. Hynson of the MDE reminded Mr. Erichsen, Director of DPW & T, "the federal regulations require that you take immediate corrective measures to protect human health from potentially explosive conditions from the migration of methane gas from the landfill." ECF No. 79-16 at 2. Moreover, John P. Norris, III, County Attorney, acknowledged the County's responsibility for remediating the methane gas in a January 10, 2005 letter to Marcas' counsel, stating in pertinent part,
ECF No. 76-31 at 3; ECF No. 79-30 at 3.
Despite the County's efforts to date, that migration continues unabated in certain locations. The imminent and substantial endangerment to the health and the environment remains. The Court therefore finds Marcas has established the elements of a RCRA claim under 42 U.S.C. § 6972(a)(1)(B).
The Court however declines to enter summary judgment in favor of Marcas as to Count VII. In the Memorandum Opinion of September 28, 2011 the Court noted it confronted an issue not raised by either party, namely, whether Maryland's hazardous waste management program supersedes federal law. See ECF No. 107 at 63-65. Since the Court lacked sufficient information to determine whether the alleged violations by the County under Subchapter III/Subtitle C of RCRA fell within the purview of Maryland or the purview of the EPA under the "dual State/Federal regulatory program in Maryland," the Court held in abeyance its ruling on Count VII. Neither party has addressed this specific issue in the cross-motions, oppositions or replies. The Court therefore continues to hold in abeyance its ruling on Count VII.
For the above reasons, the County's motion for partial summary judgment will be granted. Marcas' motion for partial summary judgment will be granted in part, denied in part and held in abeyance in part. An Order will be entered separately.
In accordance with the foregoing Memorandum Opinion, IT IS this 25th day of July, 2013 by the United States District Court for the District of Maryland,
1. That the Defendant Board of County Commissioners of St. Mary's County's Motion for Partial Summary Judgment (ECF No. 159) BE, and the same hereby IS,
2. That judgment is entered in favor of the Defendant and against the Plaintiff Marcas, L.L.C. as to Counts IV, V, VIII, IX and X;
3. That the Plaintiff Marcas, L.L.C.'s Motion for Partial Summary Judgment (ECF No. 163) is hereby
4. That the Court hereby
5. That judgment is entered in favor of the Defendant and against the Plaintiff as to Count I;
6. That judgment as to Count VII is held in abeyance;
7. That judgment as to Count VI is (a) entered in favor of the Plaintiff and against the Defendant as to the Defendant's violation of 40 C.F.R. § 258.23(a)(2), (b) is entered in favor of Defendant and against the Plaintiff as to 40 C.F.R. § 258.61(a)(4) and (c) is held in abeyance as to a possible violation of 40 C.F.R. § 258.25; and
8. That the Court has determined the Plaintiff is entitled to injunctive relief. The Plaintiff however did not submit a proposed order with its cross-motion for summary judgment listing the terms of the injunction. Thus, the parties must either submit a jointly proposed order or each party individually must submit a proposed order within twenty (20) days of this Order.
