Sherrill v. Mayor & Cnty Council of Balt.

• Decision Date: 16 July 2014
• Docket Number: Civil Action No. RDB–13–2768.
• Citation: 31 F.Supp.3d 750
• Parties: Ruth SHERRILL, et al., Plaintiffs, v. MAYOR AND CITY COUNCIL OF BALTIMORE, et al., Defendants.
• Court: U.S. District Court — District of Maryland

31 F.Supp.3d 750

Ruth SHERRILL, et al., Plaintiffs

v.MAYOR AND CITY COUNCIL OF BALTIMORE, et al., Defendants.

Civil Action No. RDB–13–2768.

United States District Court, D. Maryland.

Signed July 16, 2014.

Anthony Gene Gorski, Aminah Famili, Rich and Henderson PC, Annapolis, MD, Gregory J. Degulis, Sarah J. Gable, McMahon Degulis LLP, Cleveland, OH, for Plaintiffs.

Matthew W. Nayden, Amy Beth Leasure, Elizabeth Ryan Martinez, Baltimore City Law Department, Kenneth L. Thompson, Mary Rosewin Sweeney, Thomas Mark Lingan, Venable LLP, Baltimore, MD, Donald J. Walsh, Offit Kurman PA, Owings Mills, MD, for Defendants.

MEMORANDUM OPINION

RICHARD D. BENNETT, District Judge.

This case is yet another lawsuit challenging the siting and construction of the Horseshoe Casino in Baltimore, Maryland.¹ Plaintiffs assert claims against the Mayor and City Council of Baltimore, City of Baltimore Development Corporation, CBAC Gaming, LLC, CBAC Borrower, LLC, and Maryland Chemical Company, Inc., arguing that the Defendants' various activities at the Site violated the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. Various Defendants have filed Motions to Dismiss, and all motions are now fully briefed. In addition, Plaintiffs have filed a Motion for Leave to File Sur–Reply as to the CBAC Defendants' Motion to Dismiss. The parties' submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D.Md.2011). For the reasons that follow, while the Plaintiffs' Motion for Leave to File Sur–Reply (ECF No. 33) is GRANTED, the Defendants CBAC Gaming, LLC and CBAC Borrower, LLC's Motion to Dismiss (ECF No. 11), Defendant Maryland Chemical Company, Inc.'s Motion to Dismiss (ECF No. 13), and Defendants Mayor and City Council of Baltimore and Baltimore Development Corporation's Motion to Dismiss (ECF No. 15) are GRANTED.

BACKGROUND

This Court accepts as true the facts alleged in the plaintiffs' complaint. See Aziz v. Alcolac, Inc., 658 F.3d 388, 390 (4th Cir.2011).

I. THE SITE

This lawsuit concerns various tracts of land in Baltimore City, Maryland where the Horseshoe Casino is currently under construction (“the Site”).² The Site is “situated immediately northwest of the Middle Branch of the Patapsco River” and adjacent to an area of protected open space (the “Waterfront Parcels”).³ Pls.' Comp. ¶¶ 38, 42. Plaintiffs allege that “past spills and releases of hazardous substances and/or hazardous wastes ... have been left unaddressed and/or unremediated and, as a result, are a continuing source of contamination in the soils and groundwater at the Casino Site.” Id. ¶ 2. According to the Complaint, “[t]he topography of the Casino Site and the Waterfront Parcels slopes downward to the southeast and, as a result, area groundwater and surface water flows downgradient towards the south and southeast and discharges into the Middle Branch.” Id. ¶ 44. Due to this movement, Plaintiffs allege that contamination has “migrat[ed] off-site and into the adjacent public recreational areas” and the Middle Branch of the Patapsco River. Id.¶ 1. It is further alleged that the Gwynns Falls Trail, an asphalt recreational path, runs through the Waterfront Parcels, and the shoreline areas of the Waterfront Parcels are “Designated Habitat Protection Area” for migratory waterfowl. Id. ¶ 43.

II. THE NAMED PLAINTIFFS

Plaintiff Ruth Sherrill (“Sherrill”) is the original lead plaintiff in this case and is joined in the suit by another seven (7) named plaintiffs (collectively, the “Plaintiffs”). The other named plaintiffs are Elizabeth Arnold (“Arnold”), Merab Rice (“Rice”), Sherry Moore–Edmonds (“Moore–Edmonds”), Tim Bull (“Bull”), Julia Dinkins (“Dinkins”), Bruce Goldfarb (“Goldfarb”), and Michael Gallagher (“Gallagher”). Goldfarb is “an avid photographer and journalist” who enjoys biking and taking photographs of the flaura and fauna along the Gwynns Falls Trail. Id. ¶ 12. Due to the contamination at the Site, however, Goldfarb does not stop for photographs near the Waterfront Parcel and refrains from bringing his children to bike along that portion of the Trail as well. Id. ¶ 13. Goldfarb alleges that, were the Waterfront Parcels safer for human use, he would visit those portions of the Trail. Id. ¶ 14.

Gallagher is a resident of the Westport neighborhood of Baltimore City and uses the Gwynns Falls trail to travel into downtown Baltimore on occasion. Id. ¶ 15. Gallagher also uses the Trail “for exercise and for its waterfront views” and is concerned about the health risk posed by “repeated exposure to contamination” at the Site. Id. ¶ 15. Gallagher “would like to see clean and fishable waters in the Middle Branch” and “would recreate and use the portion of the Gwynns Falls Trail on and around the Waterfront Parcels more often” if the Site were remediated. Id. ¶ 16.

Bull is a resident of Baltimore City and “enjoys fishing and boating in and around the Baltimore Harbor” and the Middle Branch area. Id. ¶ 17. Allegedly, Bull “currently recreates and/or fishes in the Middle Branch area of the Patapsco River approximately every five (5) months.” Id. ¶ 18. Although “he enjoys fishing with his son and teaching his son to fish,” he travels to more distant locations to do so “because of his fears and concerns regarding the adverse health effects associated with his son's exposure to the contamination of the Middle Branch.” Id. ¶ 17. If Bull knew the Middle Branch “was safe for recreational use, he would feel comfortable teaching his son to fish [there].” Id. ¶ 18.

Sherrill, Moore–Edmonds, and Rice are residents of the Westport neighborhood of Baltimore City. Id. ¶¶ 19–23. According to the Complaint, Sherrill “enjoys the greenery and water views in and around the Gwynns Falls Trail.” Id. ¶ 19. Moore–Edmonds “has used the portion of the Trail along the Waterfront Parcels and the open space area in and around its vicinity for recreation purposes.” Id. ¶ 20. Meanwhile, “Rice's children frequently use and recreate along the Gwynns Falls Trail.” Id. ¶ 21. All three are concerned about the health risks posed by the contamination at the Site.⁴ Id. ¶¶ 19–21. If the area were remediated, Sherrill alleges that she would “use and enjoy the area in the future” while the Moore–Edmonds and Rice assert that they would “feel safer” recreating in the area and would “derive greater enjoyment” from such use if the Site were remediated. Id. ¶¶ 19–21.

Arnold and Dinkins are also residents and property owners in nearby parts of Baltimore City. Neither alleges any specific usage of the area in the immediate vicinity of the Site, but both profess concern about the contamination at the Site. Id. ¶¶ 22, 23. Additionally, both Arnold and Dinkins assert that they would “feel safer” recreating in the area and would “derive greater enjoyment” from such use. Id. ¶¶ 22, 23.

III. THE DEFENDANTS

Plaintiffs have sued Maryland Chemical Company, Inc. (“Maryland Chemical”), the Mayor and City Council of Baltimore (the “City”), the City of Baltimore Development Corporation (“Baltimore Development Corp.”), CBAC Gaming, LLC (“CBAC Gaming”), and CBAC Borrower, LLC (“CBAC Borrower”).

Maryland Chemical is the past operator of a portion of the Site.⁵ Id. ¶ 25. “From since at least 1952 through September 2008, Maryland Chemical operated a chemical manufacturing facility and/or a bulk chemical storage, repackaging and distribution facility” at the Site. Id. ¶ 26.

The City is the present owner of the Russell Street Properties and the Waterfront Parcels. Id. ¶ 28. The City “acquired the parcels comprising the Waterfront Parcel in three (3) separate transactions on or around March 13, 1978, October 26, 1993, and April 24, 1996.” Id. ¶ 29. The Site parcels were acquired in four (4) separate transactions on or around April 27, 1976, October 26, 2005, May 5, 2008, and December 4, 2009. Id. ¶ 30. Baltimore Development Corp. is a 501(c)(3) corporation that was organized to facilitate public and private development projects in Baltimore City and was the past operator of the Site during the period of the City's ownership.⁶ Id. ¶¶ 31–32.

CBAC Gaming is the present operator of the Site, while CBAC Borrower is the present owner of a portion of the Site.⁷ Id. ¶ 37. CBAC Gaming is a foreign limited liability company formed to develop and operate the Horseshoe Casino. Id. ¶ 34. CBAC Borrower is a separate foreign limited liability company and is a indirectly wholly-owned subsidiary of CBAC Gaming. Id. ¶ 35. The City, CBAC Gaming, and CBAC Borrower entered into an agreement on or around October 31, 2012 in order to construct, develop, and operate the Horseshoe Casino. Id. ¶¶ 36, 37. The City maintains ownership over the Russell Street Properties under a lease agreement. Id.

IV. MARYLAND CHEMICAL'S OPERATIONS AT THE RUSSELL STREET PROPERTIES AND THE ALLEGED RESULTING CONTAMINATION

As noted above, Maryland Chemical performed “chemical manufacturing and/or bulk chemical storage, repackaging and distribution” operations at the Site from at least 1952 until 2008. Id. ¶ 49. These operations involved a variety of chemical compounds, including “chlorinated VOCs, metals, acids, bases and other organic and inorganic compounds including, but not limited to, trichloroethylene (“TCE”), tetrachloroethylene (“PCE”), cyclohexane, acetone, methylene chloride

, hydrochloric acid, hydrofluoric acid, nitric acid, sulfuric acid, ammonia and ammonium-containing compounds, manganese and magnesium-containing compounds, pesticide products and chelating agents.” Id. ¶ 50. While not specifying any dates, the Plaintiffs generally allege that these operations “resulted in spills and releases of hazardous substances and/or hazardous wastes including, but not limited to: at least one (1) TCE spill of an unidentified quantity in the northern portion of 1551 Russell Street (at or around the former Maryland Chemical storage yard); at least two (2) PCE spills of unidentified quantities in the northern portions of 1551 and 1525 Russell Street (at or around the former...