Bd. Of County Comm'rs Of St. Mary's County v. Marcas, Misc. No. 3, Sept. Term, 2009.
| Decision Date | 20 September 2010 |
| Docket Number | Misc. No. 3, Sept. Term, 2009. |
| Citation | 4 A.3d 946,415 Md. 676 |
| Parties | BOARD OF COUNTY COMMISSIONERS OF ST. MARY'S COUNTY v. MARCAS, L.L.C. |
| Court | Maryland Court of Appeals |
OPINION TEXT STARTS HERE
Warren N. Weaver and Emily A. Daneker (Thurman W. Zollicoffer, Jr., Dale B. Garbutt, Jeremiah J. Kelly of Whiteford, Taylor & Preston, L.L.P. of Baltimore, MD), on brief, for appellant.
Thomas M. DiBiagio (Timothy M. Sullivan and Erica M. Zilioli of Beveridge & Diamond, P.C. of Baltimore, MD), on brief, for appellee.
Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.
On January 22, 2007, the United States District Court for the District of Maryland opened Case No. 8:07-cv-00196-CBD as a result of a Complaint filed by Marcas, L.L.C. against the Board of County Commissioners of St. Mary's County. On October 2, 2009, that case was “Stayed pending the receipt of the written opinion of the Court of Appeals of Maryland stating the law governing [two] questions certified” pursuant to the Maryland Uniform Certification of Questions of Law Act, 1 and Maryland Rule 8-305(b). 2 The certified questions are:
1. Whether multiple tort counts and injuries as alleged in [the] Complaint [filed by Marcas, L.L.C. against the Board of County Commissioners of St. Mary's County] constitute an “individual claim” under the Maryland Local Government Tort Claims Act [ (LGTCA) ], Md.Code Ann. Cts. & Jud. Proc. § 5-303(a); and
2. Whether the multiple tort counts and injuries as alleged in [Marcas, L.L.C.'s] Complaint constitute the “same occurrence” under the Maryland Local Government Tort Claims Act, Md.Code Ann. Cts. & Jud. Proc. § 5-303(a)[?]
For the reasons that follow, we answer “yes” to both questions. Despite the fact that Appellant's negligence is alleged to have occurred in many ways over an extended period of time, for purposes of C.J. § 5-303(a), 3 all of the causes of action in which Appellee has asserted a claim for money damages constitute an “individual claim” that arises out of the “same occurrence.”
In a Memorandum Opinion accompanying its certification order, the federal court stated:
This case arises out of [Appellee's] claims that sub-surface methane gas and other volatile organic compounds migrated from the St. Andrews Landfill to [Appellee's] adjacent property. [Appellee] alleges that each day of contamination equals a separate occurrence and separate claims for damages, thus allowing for a maximum of $500,000 in damages for each day that a violation exists. In contrast, [Appellant] argues that sub-surface migration over time amounts to one occurrence and one individual claim under the statute, resulting in a maximum total liability of $200,000.
Appellee's SECOND AMENDED COMPLAINT, in pertinent part, alleges:
INTRODUCTION
1. This suit is brought under the federal Comprehensive Environmental Response, Compensation and Liability Act, Solid Waste Disposal Act, and in tort for releases of hazardous substances and other pollutants by [Appellant] onto the property of [Appellee]. [Appellant's] actions have damaged or threatened the environment and public health and safety and have harmed [Appellee] through damage to and loss of value of [Appellee's] property, as well as interference with [Appellee's] efforts to use, develop, and sell [Appellee's] property. [Appellee] seeks its necessary costs of response to [Appellant's] releases of hazardous substances under the federal Superfund statute as alleged in Count One; injunctive relief and damages in nuisance and trespass by [Appellant] as alleged in Counts Two and Three; damages for [Appellant's] wrongful interference with [Appellee's] business relationships as set forth in Count Four; and damages in strict liability for [Appellant's] harm to [Appellee's] property and business interests, as alleged in Count Five.
* * * 8. The property that is the subject of [Appellee's] claims is a tract of land consisting of approximately 227 acres, located in California, Maryland, at St. Mary's County Tax Map 34, Parcel 455 (the “Property”).
9. Cazimir Szlendak, a person who directly or indirectly has an interest in [Appellee], acquired the Property in 1978.
10. [Appellee] acquired the Property on April 10, 1998 from Cazimir Szlendak.
* * *
22. [Appellant] began purchasing land for the St. Andrews Landfill in 1971 and completed land acquisition in 1984, for a total site area of approximately 270 acres. The Landfill includes four sanitary waste disposal cells (Cells 1-4) and one rubble disposal cell (Cell 5).
23. Active land-filling operations were conducted and wastes were disposed at the Landfill beginning in approximately 1974 under the authority of [Appellant].
24. [Appellant] was in 1974 and continues to be the owner and operator of the Landfill.
25. Disposal operations at the Landfill were conducted until [Appellant] discontinued waste disposal in Cells 1, 2, and 4 in November 1997 and in Cell 3 in February 1999. The disposal of rubble was discontinued in June 2001.
* * *
COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT OF 1980, AS AMENDED (“CERCLA”), 42 U.S.C. §§ 9601, ET SEQ.
* * *
96. There has been a release or threatened release of hazardous substance from the Landfill.
97. [Appellee] has incurred necessary response costs, including monitoring, assessment, and evaluation costs consistent with the National Contingency Plan, in response to the releases or threatened releases from the Landfill. [Appellee] expects to incur further response costs, consistent with the National Contingency Plan, in response to the releases from the Landfill.
98. [Appellant] is a current owner or operator of the Landfill.
99. [Appellant] was an owner or operator of the Landfill at the time of disposal of a hazardous substance.
100. Pursuant to 42 U.S.C. § 9607(a), [Appellant] is liable to [Appellee] for all necessary response costs incurred and to be incurred by [Appellee] at its Property.
103. [Appellant] has allowed and is continuing to allow hazardous substances, pollutants and contaminants from the Landfill to invade [Appellee]'s Property and interfere with [Appellee]'s interest in the exclusive possession, use and enjoyment of the Property.
104. [Appellant] had notice of its actions giving rise to the trespass and failed to cease the actions.
105. As an actual and proximate result of the trespass by [Appellant], has been damaged in an amount greater than $10,300,000, the exact amount to be proven at trial.
107. [Appellant]'s ownership and/or operation of the Landfill has been conducted and is continuing to be conducted in a manner that interferes with [Appellee's] reasonable use and enjoyment of the Property.
108. [Appellant] knew or should have known of the condition and the nuisance or unreasonable risk involved.
109. [Appellant] knew or should have known that the condition existed without the consent of [Appellee].
110. [Appellant] has failed, after a reasonable opportunity, to abate the condition.
111. As an actual and proximate result of the nuisance maintained by [Appellant], has been damaged in an amount greater than $10,300,000, the exact amount to be proven at trial.
115. [Appellant] wrongfully interfered with [Appellee's] business or economic relationship though intentional and willful acts that had the foreseeable effect of causing damage to [Appellee] in its lawful business of developing property within the First Colony PUD.
116. [Appellant] caused damage to [Appellee] in its lawful business without right or justifiable cause.
117. As an actual and proximate result of [Appellant]'s actions, [Appellee] was damaged in an amount greater than $2,000,000, the exact amount to be proven at trial.
119. [Appellant's] operations of the Landfill as an open dump in violation of the Solid Waste Disposal Act and regulation promulgated thereunder is an activity that is unduly dangerous and inappropriate to the place in which it is conducted.
120. As an actual and proximate result of [Appellant's] activity, [Appellee] has been damaged in an amount greater than $10,300,000, the exact amount to be proven at trial.
SOLID WASTE DISPOSAL ACT (“SWDA”), 42 U.S.C. § 6972(a)(1)(A)
123. [Appellant] has allowed and is allowing known carcinogens and other pollutants to discharge from the Landfill into waters of the United States without a permit in violation of the requirements of § 402 of the Clean Water Act, 33 U.S.C. § 1342. 124. [Appellant] has allowed and is allowing methane gas to exceed its lower explosive limit at the facility boundary of the Landfill.
125. [Appellant] has allowed and is allowing uncontrolled public access so as to expose the public to health and safety hazards at the Landfill.
126. Because the Landfill fails to satisfy the criteria in 40 C.F.R. Part 258, including but not limited to, criteria in 40 C.F.R. §§ 258.27, 258.23, or 258.25, the Landfill is an open dump prohibited by Section 4005 of the SWDA, 42 U.S.C. § 6945.
127. [Appellant]'s operation and closure of the Landfill is in violation of the SWDA and regulations, conditions, requirements, and prohibitions that are effective pursuant to the SWDA.
128. Pursuant to 42 U.S.C. § 6972(a), [Appellant] should be enjoined from further violations of the SWDA.
SOLID WASTE DISPOSAL ACT (“SWDA”), 42 U.S.C. § 6972(a)(1)(B)
130. [Appellant] has contributed or is contributing to the past or present storage, treatment, transportation, or disposal of solid and hazardous wastes which present an imminent and substantial endangerment to health or the environment.
131. [Appellant] did not and does not now comply with the requirements for the management of hazardous waste at the Landfill under Subchapter III of the SWDA.
132. [Appellant] did not and does not now possess a...
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