Marcas, L.L.C. v. Board of County Commissioners of St. Mary's County

Filing 172

MEMORANDUM OPINION. Signed by Magistrate Judge William Connelly on 7/25/2013. (nk, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE 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

MEMORANDUM OPINION
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).

1 

BACKGROUND
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 crossmotions for partial summary judgment shall be discussed below.
STANDARD OF REVIEW
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 (1986); Celotex Corp. v. Catrett,
477 U.S. 317, 322 (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; 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 (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.

2 

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. 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 Theaters, 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 (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 (citations omitted).
When faced with cross-motions for summary judgment, the Court must consider Aeach
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) (AThe court is not permitted to
resolve genuine issues of material fact on a motion for summary judgment B B even where . . .
both parties have filed cross motions for summary judgment.@) (emphasis omitted), cert. denied,
469 U.S. 1215 (1985)).
DISCUSSION
A.

The County’s Motion for Partial Summary Judgment
1.

The operation of St. Andrew’s Landfill – governmental or proprietary?

The County moves for summary judgment on Count IV (Interference with Business or
Economic Relationship) and Count V (Strict Liability for Abnormally Dangerous or

3 

Ultrahazardous Activity).

In the Memorandum Opinion of September 28, 2011 the Court

deferred ruling on these two counts because there was insufficient information in the record
concerning whether the County’s operation of St. Andrew’s Landfill was governmental or
proprietary. See ECF No. 107 at 72-73. “The record in this case must be supplemented with
information about the fees collected in relation to the expenses incurred for operating St.
Andrew’s Landfill.” Id. at 72.
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 2012.1
The County does not maintain revenue and expense information for its municipal solid waste,
rubble and recycling operations before 1986. ECF No. 159-8 at 2 (Erichsen Aff. ¶ 3). The
breakout of revenues, expenses and debt service between 1986 and 2012, per Mr. Erichsen’s
affidavit, is as follows:
Fiscal Year
1986
1987
1988
1989
1990
1991
1992
1993
1994
1995

Operating
Revenues
$21,293
$74,476
$98,486
$404,331
$926,581
$840,587
$1,820,242
$1,758,327
$1,765,668
$1,762,253

Operating
Expenses
$479,181
$492,499
$516,498
$548,225
$692,381
$1,075,713
$802,171
$981,803
$1,118,047
$1,129,858

1

 The affidavit of George A. Erichsen is dated February 7, 2013.   

4 

Debt Service

$50,922
$91,920
$188,884
$194,360
$189,420
$263,425
$308,477

Shortfall (-) or
Surplus (+)
- $457,888
- $418,023
- $418,012
- $194,816
+ $142,280
- $424,010
+ $823,711
+ $587,104
+ $384,196
+ $323,918

1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012

$1,682,635
$1,596,741
$1,445,979
$475,729
$420,501
$169,509
$197,912
$246,677
$288,939
$447,438
$467,417
$462,878
$2,713,065
$2,658,922
$2,678,119
$2,704,893
$3,496,321

$1,104,906
$1,017,641
$989,150
$1,266,725
$1,712,886
$1,745,130
$1,979,150
$2,121,953
$2,320,257
$2,533,968
$2,850,997
$3,449,013
$4,102,621
$4,036,131
$3,906,742
$3,733,825
$3,548,091

$918,394
$884,881
$952,025
$964,990
$961,112
$1,219,710
$1,331,776
$1,374,490
$1,170,588
$1,237,824
$767,075
$1,081,034
$1,362,168
$1,341,453
$1,074,568
$1,060,568
$1,058,252

- $340,665
- $305,781
- $495,196
- $1,755,986
- $2,253,497
- $2,795,331
- $3,113,014
- $3,249,766
- $3,201,906
- $3,324,354
- $3,150,655
- $4,067,169
- $2,751,724
- $2,718,662
- $2,303,191
- $2,089,500
- $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,
If . . . the income was not adequate to maintain the landfill or if this
income were barely adequate to cover expenses, we would agree
that this landfill operation was a governmental function. On the
other hand, if the income derived was in an amount substantially in
excess of the County’s expenses for rent, operation and the like, so
that the landfill was a real moneymaking proposition, it would be a
proprietary function.
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).
5 

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

6 

charged for material deposited is not necessarily dispositive of the issue of whether this was a
proprietary or governmental function.” Tadjer, 300 Md. at 548, 479 A.2d at 1325 (emphasis
added). The Court finds the 22 out of 27 years of shortfalls indicate the County’s municipal
solid waste, rubble and recycling operations was a governmental function.
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:
WHEREAS, Article 25, Section 14A, Paragraph (a),
subparagraph (1) of the Maryland Annotated Code empowers the
County Commissioners to prescribe and enforce Rules and
Regulations concerning the operation and manner of use Public
and Private Solid Waste Acceptance Facilities in St. Mary’s
County; and
WHEREAS, the Board of County Commissioners adopted
Rules and Regulations governing the use of the County Solid
Waste Acceptance Facilities by Resolution No. 71-4, effective
March 1, 1971, amended at Resolution No. 91-20, effective August
1, 1991, amended again at Resolution No. 96-24, effective August
12, 1996; and
WHEREAS, the Solid Waste Ordinance, Ordinance 88-32,
(the “Solid Waste Ordinance”) was adopted by the Board of St.
Mary’s County Commissioners on November 29, 1988 and which
Ordinance authorizes the County Commissioners to establish by
Resolution, a schedule of fees as they deem necessary in
connection with the use and operation of the Solid Waste
Acceptance Facilities; and
WHEREAS, the Solid Waste Ordinance authorizes the
Department of Public Works and Transportation to set the hours of
operation of the County’s Solid Waste Acceptance Facilities; and
WHEREAS, these Rules and Regulations authorize the
Board of County Commissioners to establish a fee schedule for the
operations of the Solid Waste Program and properly manage the
disposal of solid waste in St. Mary’s County, Maryland.

7 

ECF No. 159-7 at 3. St. Andrew’s Sanitary Landfill was among the County’s public solid waste
acceptance facilities. Id. at 6.
Where the act in question is sanctioned by legislative authority, is
solely for the public benefit, with no profit or emolument inuring
to the municipality, and tends to benefit the public health and
promote the welfare of the whole public, and has in it no element
of private interest, it is governmental in nature.
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 recognized in Prince George’s
Cnty. v. Longtin, 419 Md. 450, 484, 19 A.3d 859, 879 (2011). Since St. Andrew’s Landfill was a
governmental function, the County enjoys immunity and is entitled to judgment as to Count IV
(Interference with Business or Economic Relationship), see Moxley v. Town of Walkersville, 601
F. Supp. 2d 648, 658 (D. Md. 2009)2, and as to Count V (Strict Liability for Abnormally

2

  During  a  motions  hearing  Plaintiffs  acknowledged  that  they  could  not  pursue  their  claim  of  interference  with 
prospective business relations directly against the municipality.  The court thus dismissed the count. 

8 

Dangerous or Ultrahazardous Activity), see Board of Educ. of Prince George’s County v. Town
of Riverdale, 320 Md. 384, 387-88, 578 A.2d 207, 209 (1990).3
2.

Marcas’ Constitutional Challenge to the LGTCA Limitation on Liability

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.

3

 “Preliminary, we note that, even if the doctrine of governmental immunity were to protect Riverdale from the 
Board’s  claims  based  on  negligence  and  strict  liability,  the  doctrine  of  governmental  immunity  would  have  no 
application to the Board’s nuisance claim.”  Emphasis added. 

9 

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 denied
all economically beneficial or productive use of his or her land in the name of the public at large
has likely suffered a taking, unless the regulation prohibits a common law nuisance.” Neifert v.
Dep’t of Env’t, 395 Md. 486, 517, 910 A.2d 1100, 1119 (Md. 2006) (citing Lucas v. South
Carolina Coastal Council, 505 U.S. 1003, 1022-30 (1992)). As the parties are well aware, this
case does not involve a regulatory taking but one comparable to a physical taking. Nonetheless,
it is undisputed that Marcas has not been denied all economically beneficial or productive use of
its property despite the methane contamination.
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 (1982).

10 

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.
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.

11 

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 or employees) enjoyed
immunity against most non-constitutional tort claims before the enactment of the LGTCA.
“Through the LGTCA, the Legislature altered the common law, giving plaintiffs limited access
to the often sizable assets of local government. . . .” Id. at 519, 19 A.3d at 119 (Harrell, J.,
concurring & dissenting).
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 120-21 (Harrell, J., concurring & dissenting); and
ensures the financial burden for the injury is borne by the local government ultimately

12 

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.
[The $200,000 limit per individual claim and $500,000 limit per
total claims that arise from the same occurrence] are established by
regulations issued by the State Treasurer pursuant to amendments
to the State Tort Claims Act effective in 1985. Thus, the cap is
consistent with existing law. Considering that local governments
will be paying judgments in situations where they could have
previously avoided liability, the cap is equitable. The cap is
necessary so that local governments can predict exposure for both
insurance and budgetary purposes. Since local governments
provide vital services, unlimited recovery prudents [sic] the
prospect of severely impeding the provision of such services.
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,
It is a fundamental doctrine that the Legislature may grant or deny
to individuals a right of action against municipal corporations for
injuries resulting from the negligent manner in which streets are
maintained. When the Legislature creates a municipal corporation
as part of the machinery of government of the State, it is within its
province to adjust the relative rights of the corporation and its
citizens.
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 municipal
corporations, like St. Mary’s County, by allowing the County to be sued and held financially
responsible for certain non-constitutional torts committed by its officers or employees but up to a
specific dollar amount to limit local governments from excessive civil liability exposure so local
governments may continue to provide vital services to their residents. Marcas does not have a
constitutional right to unlimited damages from the County. With the enactment of the LGTCA
13 

the General Assembly balanced these competing issues of compensating the injured citizen
without bankrupting the local government.
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

14 

the Maryland State Constitution) and as to Count X (Declaratory Judgment4). Because the Court
has granted judgment in favor of the County as to Counts IV, V, VIII, IX and X, the Court will
enter a separate order granting the County’s motion for partial summary judgment.
B.

When was Marcas on notice about the contamination to its property?
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 Maryland Department of the Environment (“MDE”) seeking the
MDE’s assessment regarding future contamination. ECF No. 168-7 at 1. The County contends,
based on the March 7, 2000 letter, Mr. Szlendak (and therefore Marcas) had actual notice of the
contamination or minimally inquiry notice of its injury in 2000. “As such, Plaintiff’s trespass,
nuisance, and strict liability claims are arguably barred by Maryland’s three year statute of
limitations and Marcas was not entitled to summary judgment in its favor on the trespass and
nuisance claims.” ECF No. 168 at 18. The Court disagrees.
The March 7, 2000 letter from DPW&T states in pertinent part,
The monitoring of the groundwater shows that there is some
migration of landfill contamination to a tract of your land (Parcel
455) shown as a Forest Conservation Parcel. This parcel of land is
bound by the landfill, St. Mary’s River State Park and the Holly
Acres Subdivision. This particular contamination was found in a
very shallow aquifer that is not used for drinking water. The Holly
Acres Subdivision obtains its drinking water from a separate, deep
aquifer located 390 feet below the ground surface. The wells of
the homes in this subdivision were tested for possible landfill
contamination, and none was found. The landfill is slated to

4

 A declaratory judgment “declaring that the LGTCA Damages Cap, as applied to limit Defendant’s liability for the 
entirety  of  damage  Defendant  has  caused  to  Plaintiff’s  Property,  is  unconstitutional  under  the  United  States 
and/or Maryland Constitutions because such application will result in a taking without just compensation.”  Third 
Am. Compl. § 213. 

15 

receive a membrane top cover in the Spring of 2000. This
“closure” will greatly reduce rainfall infiltration, which should
bring about a mitigation of the upper aquifer contamination.
In addition, we expect that the MD Department of the Environment
will request that another well or sampling point for surface water
be located on Parcel 455. In accordance with State and Federal
Regulations 40 CFR, Part 258, we are notifying you with the
results of our most recent testing information.
In prior
conversations with Mr. Donald Cropp, we obtained no objection to
our contractor installing Well #11 as shown on the attached
Permanent Monitoring Well and Access Easement. We are
requesting your additional concurrence in allowing a right-of-entry
for our Contractor to test the surface water ponded along the
southern central portion of Parcel 455.
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.
The County has tested the groundwater around the Landfill for
many years. Beginning in 1994, on some occasions,
“tetrachlorathene” and vinyl chloride, 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”) exceeding safe drinking water levels were detected.
Second Am. Compl. ¶ 26; Answer ¶ 26.
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 reply the
16 

County has not presented any new evidence of notice to Mr. Szlendak about the migration of
methane gas prior to the meeting between Mr. Tarr of DPW&T and a Marcas representative in
September of 2004. Therefore the County is not entitled to summary judgment in its favor as to
Marcas’ trespass (Count II) and nuisance (Count III) claims.
C.

Marcas’ Motion for Partial Summary Judgment
1.

Whether Marcas is entitled to summary judgment as to damages on Count I.

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.
From October 8, 2004 to the present, through my work with
ARCADIS and Environmental Resources Management, Inc., I
have overseen efforts on behalf of Marcas, L.L.C. to investigate
and monitor the nature and extent of contamination in the form of
hazardous substances, including methane gas, vinyl chloride, and
other volatile organic substances, from the St. Andrews Landfill on
and beneath property owned by Marcas known as the First Colony
Planned Unit Development.
The investigation and monitoring activities which I have
performed for Marcas include obtaining preliminary information
on the levels of hazardous substances in the subsurface beneath
Marcas’ property, evaluating the lateral and vertical extent of the
contamination, and consideration of remedial options and remedial
costs estimates.
The investigation and monitoring costs incurred by Marcas,
L.L.C. include $35,751.33 represented on the true and correct
17 

copies of invoices from ARCADIS and Environmental Resources
Management, Inc. . . .of work performed from October 8, 2004
through April 1, 2005.
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.
Marcas, as a private party, may receive a court award to recover its response costs under
CERCLA provided Marcas’ response action is consistent with the NCP. The NCP outlines the
procedures and organizational structure to prepare for and respond to the release of hazardous
substances. 40 C.F.R. § 300.1 (2012). It is readily apparent from the record in this case that the
response action was a remedial one, not a removal action.

Pursuant to 40 C.F.R. §

300.700(c)(3)(i), a private party response action must be in substantial compliance with the
requirements of paragraphs (5) and (6) of section (c) and must result in a CERCLA-quality

18 

cleanup. Under paragraph 5 potentially applicable private party response actions include (vii)
Section 300.420 (on remedial site evaluation) and (viii) Section 300.430 (on RI/FS5 and selection
of remedy). Under paragraph 6 the private party must provide the public an opportunity to
comment about the proposed response action.
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 agency6 regarding St. Andrew’s Landfill.
As revealed in the extensive Background of the Memorandum Opinion of September 28, 2011,
the MDE supervised, reviewed and approved the County’s, i.e., DPW&T, remediation efforts.
Unlike 1325 G Street Associates, LP v. Rockwood Pigments NA, Inc., No. Civ.A.DKC 20021622, 2004 WL 2191709 at *6 (D. Md. Sept. 7, 2004) where the MDE directed the plaintiff to
perform environmental investigations at a facility and further directed the plaintiff to install a
security fence, and also unlike SPS Limited Partnership, LLLP v. Severstal Sparrows Point, LLC,

5

 Remedial investigation/feasibility study. 
  “Lead  agency  means  the  agency  that  provides  the  [On‐scene  coordinator]/[Remedial  project  manager]  to  plan 
and implement response actions under the NCP.”  40 C.F.R. § 300.5 (2012).  
6

19 

808 F. Supp. 2d 794, 799 (D. Md. 2011) where the MDE asked the plaintiff to test for benzene
and subsequently the MDE directed the plaintiff to install a wastewater treatment system
designed to remove benzene, in this case, the MDE did not task Marcas with response actions.
Marcas cannot deny the gas monitoring wells installed on its property ̶ those same gas
monitoring wells which have reported the presence of methane gas at various locations for many
years ̶ were installed at the direction of the MDE without cost borne by Marcas. Thus the
necessity of Marcas’ own investigative and monitoring costs has not been demonstrated. “To
establish compliance with the NCP, a plaintiff need only show that its remediation was
conducted under the aegis of a state environmental agency.” Rococo Assocs., Inc. v. Award
Packaging Corp., 803 F. Supp. 2d 184, 191 (E.D.N.Y. 2011). Marcas has not met its burden of
showing its investigative and monitoring costs were substantially compliant with the NCP. Since
Marcas has not established the third element of a claim under 42 U.S.C. § 9607(a), the judgment
(liability only) in favor of Marcas as to Count I shall be vacated. Consequently, Marcas’ request
for summary judgment in its favor on Count I in the amount of $35,751.33 is denied.
2.

Whether Marcas is entitled to summary judgment on Count VI.

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.

20 

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.
Q:
Is it fair to say that currently there are readings in gas wells
near the property - - near or at the property’s boundary that equal
or exceed 100 percent of LEL for methane gas?
A:
That would be a fair question, and the answer would be,
yes, based on my reading of the report.
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:
21 

Q:
So we know as we sit here today that methane exceeding
the LEL has migrated from the landfill onto Marcas’s property,
right?
A:

Yes.

Q:
Okay. Can you tell me when methane exceeding the LEL
will stop migrating from the landfill on to Marcas’s property?
A:
No. Because I’m currently not able to tell you when the
Department will approve the ACM7 and when the County will
approve funds for implementation of the ACM.
ECF No. 171-1 at 7 (Baer Dep. 135:3-13).
40 C.F.R. § 258.23(a)(2) states,
Owners or operators of all MSWLF8 units must ensure that: The
concentration of methane gas does not exceed the lower explosive
limit for methane at the facility property boundary.
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

7
8

 Assessment of Corrective Measures. 
 Municipal Solid Waste Landfill. 

22 

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.
Q:
So in simple terms, if the methane level exceeds a lower
explosive limit at the County’s boundary, the County is not in
compliance with the regulations, correct?
A:

That would be correct.

Q:
And currently the County is not in compliance with the
regulations, correct?
A:

That is correct.

Q:

And that’s been the case now for several years, correct?

A:

It has been, unfortunately.

*

*

*

Q:
Now, you mentioned you would like to see the gas
extraction system expanded and enhanced.
A:

Yes.

Q:

How would you like to see it expanded and enhanced?

A:
I don’t have the plans in front of me, but currently under
the ACM, MES proposed the installation of out-of-waste gas
extraction wells in an alignment along the northern and eastern
property boundaries that abut the Marcas property.

23 

It was our intent to extract gas from those locations. And,
again, I apologize, I can’t specifically show you where those are
because I don’t have that document in front of me, but the intent is
to extract gas from those locations and send that gas to the same
treatment unit currently employed for the in-waste extraction wells
in area B.
Q:
And I take it at least one of the reasons why you would like
to add those additional wells is to hopefully stop the migration of
methane gas onto the Marcas property, correct?
A:

Yes.

Q:

Okay.

A:
However, we’ve also determined that it is a likely scenario
that the removal of the gas will result in the remediation of the low
level VOCs present in the groundwater on the County property and
the Marcas property.
So the installation of the landfill gas remediation system
and subsequent enhancements of it, it’s really a twofold goal of not
only achieving compliance with the federal and state standards for
landfill gas, but for achieving compliance with the federal
requirements for groundwater at a landfill site.
Q:
I understand. So at the present time, the County is not in
compliance with the federal and state standards for landfill gas or
groundwater, but you would like to take additional action to try to
get into compliance?
A:

That is the case, yes.

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.
Q:
I guess what I’m trying to get at is, when it comes to taking
action on the landfill to try to remediate it, who makes the
decisions, the County or MES?
A:
The County does ultimately as the entity that’s paying for
that service. We provide recommendations. But we don’t have the
decision to actually initiate action.
24 

Q:

The County ultimately decides what action to initiate?

A:

Correct.

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, implemented a
remediation system in 2007 and today, in 2013, methane gas continues to exceed the LEL at the
boundary of St. Andrew’s Landfill is violation of 40 C.F.R. § 258.23(a)(2). The County’s own
expert witness has recommended additional remediation measures which the County has not
implemented. The Court therefore finds, due to the continual migration of methane gas from St.
Andrew’s Landfill more than a decade after operations at the facility were terminated, additional

25 

remediation plans must be considered and a mandatory injunction is warranted and appropriate
under these circumstances.
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.
3.

Whether Marcas is entitled to summary judgment on Count VII.

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

26 

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
may present an imminent and substantial endangerment to the health or the
environment[.]” Emphasis added. The County’s own employee and own expert witness admit
methane gas exceeding the LEL is present at the boundary of St. Andrew’s Landfill. As the
MDE, the agency supervising the remediation efforts, advised the County in 2005,
This Department has been working with the County for some time
to remedy the migration of methane gas and volatile organic and
inorganic compounds from the landfill. As you are aware, 40 CFR
258.20 governs the operating criteria, including explosive gases
control and access requirements, for municipal solid waste landfills
and requires that you take immediate steps to protect human health
from potentially explosive conditions from the migration of
methane gas from the landfill.
*

*

*

Your letter states that the County will monitor the methane control
systems and based on the Department’s review and
recommendation, make modifications to the systems. Please be
advised, the Solid Waste Program is concerned about possible gas
generation and migration from landfills into facility structures and
across property boundaries. As you are aware, such migration can
cause potential risks to on-site structures, neighboring homes,
pedestrians, businesses and properties. The Department believes
that continued and intensified gas monitoring of the landfill is
needed to minimize the potential for risks caused by gas generation
and migration. You must guard against any problems that may
result from gas generation and migration into facility structures or
across property lines. In accordance with the federal regulations,
27 

the County must immediately take all necessary steps to protect
human health from potentially explosive conditions from the
migration of methane gas from the landfill.
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 (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 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 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 *7. Finally in Scotchtown Holdings LLC v. Town of Goshen,
No. 08-CV-4720, 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

28 

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 the road salt is not an imminent and substantial
endangerment to the health or the environment. “The purported endangerment to health of future
occupants is not actionable under RCRA because, under Plaintiff’s own theory, the harm posed
by the sodium chloride will never occur. If indeed the ground water is contaminated, as Plaintiff
alleges, it will never be approved for human consumption, as Plaintiff also alleges.” Id. at *7-8.
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,
I reiterate that the County will continue to pursue the investigation
and remediation of the landfill gas migration occurring from the St.
Andrews Landfill in accordance with applicable federal and state
law and as directed by MDE. It will continue to rely on the advice
of the Department of Public Works and Transportation, its
environmental consultants and Maryland Environmental Services,
as well as the recommendations of MDE. The remedies selected
and implemented will be more than adequate to protect your
29 

client’s current property interests. The County readily accepts its
responsibility to safeguard its residents; it has the obligation to stop
the migration of methane (and various Volatile Organic
Compounds, “VOCs” in the ground water) from beyond County
boundaries and to control the methane extraction safely within its
property, all in accordance with MDE requirements.
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.
CONCLUSION
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.
Date: July 25, 2013

________________/s/________________
WILLIAM CONNELLY
UNITED STATES MAGISTRATE JUDGE
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