Maloof v. DEPT. of ENVIRONMENT, 2228

Citation136 Md. App. 682,767 A.2d 372
Decision Date28 February 2001
Docket NumberNo. 2228,2228
PartiesNaji P. MALOOF v. STATE of Maryland, DEPARTMENT OF the ENVIRONMENT.
CourtCourt of Special Appeals of Maryland

R. Calvert Steuart, Largo, for Appellants.

J. Van Lear Dorsey, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on the brief), Baltimore, for Appellee.

Argued before HOLLANDER, THIEME,1 ADKINS, JJ.

HOLLANDER, Judge.

In this case we must analyze the scope of authority conferred by statute and regulation upon the Maryland Department of the Environment to regulate the disposal of solid waste, particularly land clearing debris. The matter arises from a dispute between Naji P. Maloof and Parkers Wharf, LLC,2 appellants, and the Maryland Department of the Environment ("MDE" or the "Department"), appellee, concerning appellants' operation of a landfill on their Calvert County farm, without a permit, allegedly in violation of Md.Code (1982, 1998 Repl.Vol., 2000 Supp.), § 9-204(d) of the Environment Article ("E.A."), and the Code of Maryland Regulations ("COMAR"). The landfill contained land-clearing debris that commercial excavators transported to appellants' farm for a fee. According to Maloof, the purpose was to create additional pastureland for his livestock.

On July 30, 1999, MDE filed suit in the Circuit Court for Calvert County against Maloof, seeking injunctive relief and civil penalties based on his operation of a landfill without a permit. The suit was amended to add Parkers Wharf as a defendant. The dispute led to an evidentiary hearing on September 1 and 15, 1999, as well as a site visit by the court, and culminated in a Memorandum and Order dated October 8, 1999 (Chappelle, J.), granting a preliminary injunction that enjoined Maloof from operating "an open dump, land clearing debris landfill, or refuse disposal system."

Appellants timely noted their appeal and present two questions for our review, which we have rephrased:

I. Did the circuit court properly determine that appellants violated the laws and regulations governing solid waste disposal by operating the landfill without a permit?

II. Did the lower court err or abuse its discretion in granting injunctive relief?

For the reasons that follow, we shall affirm.

FACTUAL SUMMARY

Maloof operates a farm at 6755 Parker's Wharf Road in Calvert County. The land is owned in fee simple by Parkers Wharf, LLC. Maloof contends that by filling several areas on his farm with stumps, limbs, rubble, and other land-clearing debris, he sought to create additional flatland on his farm to use as pasture for his livestock. He obtained the land-clearing debris from various commercial excavators who paid fees to him to dump their debris.

On February 22, 1999, an anonymous phone call alerted MDE to Maloof's activities at his farm. A representative of the Department then made an unannounced visit to Maloof's property on February 24, 1999, but was not permitted to enter the premises. MDE inspectors were also denied access to the property on March 25, 1999. On April 14, 1999, MDE agents observed activities on the Maloof property from outside its gates, noting at least three trucks entering the property hauling land-clearing debris and departing the premises without the debris. Ground level photographs were also taken. On July 7, 1999, MDE took aerial photographs of the Maloof property, which showed land-clearing debris, as well as vehicles "approaching and moving away from the debris pile...."

On July 30, 1999, MDE filed a complaint for preliminary and permanent injunctive relief and civil penalties, alleging that appellants' landfilling practices posed significant health and environmental risks, and violated Maryland statutory and regulatory law. Additionally, MDE filed a motion seeking immediate access to appellants' property. The court granted that motion and, on August 4, 1999, MDE conducted an on-site inspection of Maloof's property.

The Department ascertained that appellants' property was divided into three parts: Area A; Area B; and Area C. Area A totals four to five acres in size. In a three-acre section of Area A, MDE observed piles of land-clearing debris on top of buried land-clearing debris. The combined height of the two piles reached approximately twenty feet. Area B is about one and a half acres in size, and a one-acre section of it contained land-clearing debris covered with soil. Additionally, the edge of Area B sloped off, and a section of exposed land-clearing debris had been put into a ravine. Area C appeared to have been recently filled with landfill debris, but it had no soil cover. The inspectors did not observe any soil erosion or fire control measures at the site.

An inspector returned to the Maloof property on August 26, 1999, and noticed that a silt fence had been placed below Area A near a stream. The fence was not adequate to prevent runoff from the landfill to prevent pollution of the stream.

Based on the on-site observations, MDE filed an Amended Complaint on September 8, 1999, which added several new claims, including allegations of construction of a waterway obstruction without a permit (Count II); unlawful water pollution (Count III); failure to obtain a discharge permit (Count IV); and nontidal wetlands violations (Count V).3 With respect to the request for a preliminary injunction, the court held an evidentiary hearing that began on September 1, 1999, and continued on September 15, 1999. We shall briefly review the evidence adduced at the hearing.

Heather Nelson, an MDE employee, testified that during the site inspection on August 4, 1999, she observed land-clearing debris on the site as well as a dump truck unloading additional land-clearing debris. She also testified that, in Area A, the debris had been dumped around some free standing trees, and the area surrounding these trees served as "hot pockets," from which heat generated by decaying debris could escape. Nelson added that the depth of the fill in Area A was approximately ten feet.

Richard Glover, a sanitarian for the State, testified that he observed trucks bring debris to the site in April 1999, and photographed the dumping during the August inspection. Glover also testified that in an aerial inspection of the property in July 1999, he observed a front end loader moving debris on the property. Several photographs were presented to support Glover's testimony.

James Grainer, an excavator who hauls land-clearing debris, also testified for the Department. He admitted that he had received an invoice from Maloof for the dumping of debris, but was unable to specify where the material had been dumped.

Robert Hartlove, the Regional Forest Fire Protection Supervisor for the Department of Natural Resources, testified as an expert for MDE. In his opinion, there was a risk of subterranean fire in the filled area. In addition, the access around Area A was inadequate to accommodate fire equipment in the event of a fire.

Edward Dexter, a geologist and the Chief of the Field Operations and Compliance Division of MDE's Solid Waste Program, testified as an expert in solid waste management, including pollution control at solid waste facilities. He indicated that material from the filled areas might leach into a downhill stream because of the lack of adequate barriers to prevent the discharge of sediment and pollutants. Dexter also stated that appellants did not have a permit to operate a land-clearing debris landfill. As no permit had been issued to appellants for a land-clearing debris landfill on the property, Dexter classified the site as an "open dump," as defined by COMAR 26.04.07.02.4

The defense did not dispute that land-clearing debris had been brought to appellants' farm. Perry Bowen III, who testified for appellants, acknowledged that Maloof received compensation from businesses that were allowed to dump land-clearing debris. He also acknowledged that appellants did not have a soil erosion plan for the site. But, Bowen claimed that the use of land-clearing debris is a traditional method of altering the existing grade or contours of land, and is done to fill in gullies or ravines in order to make the land suitable for various farm purposes, such as livestock grazing. Ward Cattington, Jr. testified as an expert in the field of fire prevention. He denied having seen any hot pockets during his on-site inspection. But, he conceded that he was not present when the court inspected the property on September 15, 1999.

As noted, the judge visited the property on September 15, 1999. At that time, he saw "smoke coming out of the ground," where land clearing debris had been packed around trees.

On October 8, 1999, the court issued a memorandum and order granting the preliminary injunction. The court found that appellants operated a "refuse disposal system for public use," as defined in COMAR 26.04.07.02B(30). It also concluded that appellants operated a land-clearing debris landfill, without a permit, in violation of E.A. § 9-204 and COMAR 26.04.07.11. The court reasoned, in part:

In applying the above referenced statutes and regulations to the current case the Court concludes that as the Defendant operated a landfill, he was operating a "refuse disposal system" as Section 9-201(e) of the Environment Article indicates that a landfill is a refuse disposal system. His refuse disposal system is further a system of refuse disposal for public use as defined in COMAR 26.04.07.03(30) because the Defendant's property was the final disposal place for solid waste that was generated by more than one individual or single corporation. Therefore, pursuant to Environment Article Section 9-204, and COMAR 26.04.07.03B, Mr. Maloof needs a permit issued by the Secretary to operate this landfill. The Court further concludes that the Defendant has operated a Land Clearing Debris landfill without a valid permit in violation of Section 9-204 of the Environment Article of the Maryland Annotated
...

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