Marcas, L.L.C. v. Bd. of Cnty. Comm'rs of St. Mary's Cnty.

• Decision Date: 28 September 2011
• Docket Number: Civil Action No. WGC-07-196
• Parties: MARCAS, L.L.C. Plaintiff, v. BOARD OF COUNTY COMMISSIONERS OF ST. MARY'S COUNTY Defendant.
• Court: U.S. District Court — District of Maryland

MARCAS, L.L.C. Plaintiff,

v.BOARD OF COUNTY COMMISSIONERS OF ST. MARY'S COUNTY Defendant.

Civil Action No. WGC-07-196

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

September 28, 2011

MEMORANDUM OPINION

Plaintiff Marcas, L.L.C. ("Marcas") brought this action against Defendant Board of County Commissioners of St. Mary's County ("the County") alleging violations of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, ("CERCLA"), 42 U.S.C. §§ 9601 et seq., the Solid Waste Disposal Act, 42 U.S.C. §§ 6901, et seq., ("SWDA") as amended by the Resource Conservation and Recovery Act ("RCRA"¹ ), and various tort causes of action under Maryland law stemming from the releases of hazardous substances and other pollutants from a landfill operated by the County onto Marcas' property. The parties consented to proceed before a United States Magistrate Judge for all further proceedings in the case and the entry of a final judgment. See Document No. 46.² This case was subsequently referred to the undersigned. See Document No. 98. Pending and ready forresolution are the County's Motion for Partial Summary Judgment (Document No. 68) and Marcas' Motion for Partial Summary Judgment (Document No. 76). No hearing is deemed necessary and the Court now rules pursuant to Local Rule 105.6 (D. Md. 2011).

BACKGROUND

Marcas is a limited liability corporation, formed under the laws of Maryland and doing business in Maryland. Second Am. Compl. ¶ 6. Marcas owns property consisting of about 227 acres of land, located in California, Maryland, designated as Parcel 455 on St. Mary's County Tax Map 34. Id. ¶ 8. Cazimir Szlendak acquired the Property in 1978. Id. ¶ 9. On April 10, 1998 Marcas acquired the Property from Cazimir Szlendak, who directly or indirectly has an interest in Marcas.

The Marcas property is adjacent to St. Andrew's Landfill ("St. Andrew's Landfill" or "the Landfill"), which lies to the south and southwest of the Marcas property. The County "began purchasing land for 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)." Id. ¶ 22; Answer ¶ 22. The County owns and operates³ the Landfill. The 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. Second Am. Compl. ¶ 25; Answer ¶ 25.

The County has tested the groundwater around the Landfill for many years. Beginning in 1994, on some occasions, "tetrachlorathene⁴ " and vinyl chloride⁵ , a known human carcinogen, were detected exceeding maximum allowable contaminant levels in a monitoring well (W-4) located approximately 200 feet from the Marcas property. Second Am. Compl. ¶ 27; Answer ¶ 27. Furthermore, in some groundwater monitoring wells of the Landfill at various points in time, volatile organic compounds ("VOCs")⁶ exceeding safe drinking water levels were detected. Second Am. Compl. ¶ 26; Answer ¶ 26.

In June of 1996 representatives of Marcas and representatives of St. Mary's County Department of Public Works & Transportation ("DPW&T") met and discussed St. Andrew's Landfill and the County's remediation plan. Second Am. Compl. ¶11; Answer ¶11.Subsequent to this meeting, in November 1996, a related entity of Marcas, Porto Bello Development, Inc., applied to the County to have the Property rezoned as a Planned Unit Development ("PUD"), to be known as First Colony Planned Unit Development or First Colony PUD. Second Am. Compl. ¶ 12. Subject to certain terms and conditions, on October 27, 1997, the St. Mary's County Planning Commission approved the application. Id. ¶ 12. The County approved the rezoning and creation of the First Colony PUD, by Ordinance Z98-03, on June 9, 1998. Id. ¶ 13; Answer ¶ 13.

In 1999 the Maryland Department of the Environment ("MDE") inspected the Landfill and found evidence of several leachate⁷ seeps flowing from the Landfill to adjacent waters. Second Am. Compl. ¶ 33; Answer ¶ 33. "As a result of its inspections of the Landfill, MDE issued a site complaint to St. Mary's County, ordering the [County] to contain and collect leachate seeps to prevent further discharges." Second Am. Compl. ¶ 35. See Answer ¶ 35.

At some point before June 18, 2001 the County contracted with GCI Environmental Services ("GCI"). Nine landfill gas monitoring probes were installed around the perimeter of the Landfill by GCI. In a July 26, 2001 Memorandum to File, Richard Tarr ("Mr. Tarr"), Solid Waste Manager, St. Mary's County DPW&T, summarized recent events regarding landfill gas monitoring, stating in pertinent part,

On July 23, 2001, GCI Environmental Services began the installation of nine (9) landfill gas monitoring probes around the perimeter of the St. Andrews Landfill property. The locations of the probes can be found [in] the "Environmental Monitoring Plan," which was approved by the Maryland Department of the Environment (MDE) on July 3, 2000. On June 18, 2001, GCI Environmental Services requested the relocation of three probes and was subsequently approved by the MDE on July 20, 2001. On July 26, 2001, Mr. Steve Brown of GCI Environmental Services notified me that the installation of the nine probes were completeand reported the following preliminary sampling results as the percentage of gas below the Lower Explosive Limit (LEL): GW-1, 100%; GW-2[,] 100%; GW-3, 8%; GW-4, 100%; GW-5, 0%; GW-6, 0%; GW-7, 0%; GW-8, 0% & GW-9, 100%. These sampling results were acquired directly after the probes were installed.

I contacted MDE and left a message with Mr. Edward Dexter of the Solid Waste Program requesting he contact my office immediately. In addition, I have contacted the St. Mary's County Health Department, Environmental Division requesting they sample the three buildings as outlined in the Plan mentioned above.

Def.'s Reply, Ex. 4 at 2 (Mem. from Tarr to File of 7/26/01).

On August 1, 2001 Mr. Tarr wrote a two page letter to Mr. Dexter stating in the final three paragraphs,

On July 26, 2001, Mr. Steve Brown of GCI Environmental Services notified this office that installation of the wells was complete and had the following results to report as percent Lower Explosive Limit (%LEL): GW-1, 100%; GW-2, 100%; GW-3, 8%; GW-4, 100%; GW-5 0%; GW-6, 0%; GW-7, 0%; GW-8, 0% & GW-9, 100%. The results were acquired directly after the wells were installed. I contacted your office on July 26, 2001 and left a message requesting you contact this office immediately. In accordance with 40 CFR 258.23(c)(2), a memorandum was placed in the operating record on July 26, 2001, which included the above mentioned results and steps taken to protect human health.

On July 27, 2001, we spoke regarding the findings and all regulatory requirements that must be fulfilled. In addition, Mr. Brown returned to re-sample the wells and the three buildings as identified in the above-mentioned plan. The following results were reported as %LEL: GW-1, 100%; GW-2 80%; GW-3, 16%; GW-4, 16%; GW-5, 0%; GW-6, 0%; GW-7, 0%; GW-8, 100%; GW-9, 0%; and three buildings, 0%. As you can see, the results remained the same for GW-1, 5, 6 & 7, increased for GW-3 & 8 and decreased for GW-2, 4 & 9. Upon review of the data, I discussed with Mr. Brown any circumstances causing such drastic differences, such as proper calibration of the instrument, past and present weather conditions and sampling techniques.

This Department is requesting a meeting with your agency, Mr. Brown, and Mr. Louis Shaw (Maryland Environmental Service) to discuss the findings and the recently revised landfill gas system which was approved by your agency on July 20, 2001 and how each subject relates to any action St. Mary's County may implement to fulfill all federal and state regulatory requirements. This discussion should fulfill the requirements in implementing a remediation plan within 60 days of detection as outlined in 40 CFR 258.23 (c)(3). In the interim, if you should have any questions, please do not hesitate to contact myself. We appreciate your ongoing support of our operations.

Id., Ex. 5 at 2-3 (Letter from Tarr to Dexter of 8/1/01 at 1-2).

On September 7, 2001 Mr. Tarr sent an e-mail to multiple recipients summarizing the St. Mary's County Landfill Gas Monitoring Status Meeting of September 6, 2001.

The following summarizes the meeting held at the Maryland Department of the Environment (MDE) on 9/6/01 with Ed Carlson and Brian Coblentz from the MDE, Les Shaw and William Chica from the Maryland Environmental Service (MES) and Richard Tarr from St. Mary's County. The recent installation (July 2001) of nine (9) landfill gas monitoring wells around the perimeter of the St. Andrews Landfill and subsequent sampling of same prompted a discussion with the above mentioned in order to further evaluate the current findings and outline a plan for the near future. The following items were agreed upon by all parties based on the discussion:

1. Continue to monitor the nine landfill gas monitoring wells for %LEL as required by Federal and State Regulations on a monthly basis to determine if the recently placed landfill cover and passive landfill gas extraction system has any effect on subsurface migration of landfill gas originating from Cells 1, 2 & 4. This monitoring will continue for 6 months and a follow-up meeting will be conducted with MDE to discuss such findings.

2. Collect one air sample from gas wells 8 & 9 to determine chemical makeup which resulted in elevated %LEL readings. This sampling will be conducted during the upcoming groundwater sampling event or during the subsequent quarterly gas well sampling event to be conducted by GCI Environmental, Inc.

* * *

Lastly, MDE will include recommendations above in their correspondence to St. Mary's upon review of the September - October 01 Sampling and Analysis

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