# Marcas, L.L.C v. Board of County Commissioners

> District Court, D. Maryland · September 28, 2011 · 817 F. Supp. 2d 692

URL: https://www.frixlaw.com/law-library/cases/8693397

## Case

- **Full name:** MARCAS, L.L.C. v. BOARD OF COUNTY COMMISSIONERS OF ST. MARY'S COUNTY
- **Court:** District Court, D. Maryland
- **Decided:** September 28, 2011
- **Citations:** 817 F. Supp. 2d 692; 74 ERC (BNA) 1857; 2011 U.S. Dist. LEXIS 110378
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Connelly
- **Judges:** Connelly
- **Cited by:** 3 later opinions in the Frix Law Library

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## Opinion text

MEMORANDUM OPINION
WILLIAM CONNELLY, United States Magistrate Judge.
Plaintiff Marcas, L.L.C. (“Marcas”) brought this action against Defendant Board of County Commissioners of St. Mary’s County (“the County”) alleging vio *696 lations 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 for resolution 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 Mareas 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 1^1) and one rubble disposal cell (Cell 5).” Id. ¶ 22 ; Answer ¶ 22. The County owns and operates 3 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, “tetrachlorathene 4 ” and vinyl chloride 5 , a *697 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 Z98-0B, 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 leachate 7 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.
*698 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 complete and reported the following preliminary sampling results as the percentage of gas below the Lower Explosive Limit (LEL): GW1, 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-50%; 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-280%; GW-3, 16%; GW4, 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 sys *699 tem 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 Report. St. Mary’s County is requesting a meeting with the above parties to discuss the six months of data collection to further evaluate future monitoring/remedial action initiatives.
Id., Ex. 6 (E-mail from Tarr to Chica of 9/7/01).
By the middle of 2002 there was some concern about gas migrating from the Landfill to properties nearby. George A. Erichsen, Director, St. Mary’s County DPW & T, proposed a solution to this potential problem in a May 23, 2002 letter to Edward M. Dexter of MDE.
As a follow up to our prior correspondences, this Department is requesting formal approval for the usage of mini-blowers at each of the landfill gas vent flares located on Cells 1 through 5 (St. Andrews Landfill — Area B). This particular active gas recovery system alternative is not intended to replace the previously approved active gas recovery system, but rather a supplemental alternative, at a significantly reduced cost for this particular rural application.
The mini-blower specifications appear to be compatible with the existing gas vent flares from a construction, opera *700 tional and performance standpoint. In addition, the mini-blowers will facilitate the extraction of landfill gas from the landfill at a more uniform rate, thus minimizing the potential for offsite landfill gas migration----
We trust you are in agreement with the above and look forward to your positive response. We appreciate your ongoing and comprehensive support of our solid waste issues. In the interim, if you should have any questions, please do not hesitate to contact either myself, or Mr. Tarr.
Id., Ex. 7 at 2 (Letter from Erichsen to Dexter of 5/23/02).
Two weeks later Mr. Dexter approved Mr. Erichsen’s request.
This is in reference to your request for formal approval for the usage of mini-blowers at each of the landfill gas vent flares located on Cells 1 through 5 at the St. Andrews Landfill located in California, St. Mary’s County. We note that the Air and Radiation Management Administration (ARMA) has determined that this will not require a.change to their permit. Therefore, this request is approved with the following comments:
• Your evaluation that the mini-blower specifications appear to be compatible with the existing gas vent flares from a construction, operational, and performance standpoint is noted. However, on page 1 of 4 on CF-5 Vent Flare specifications, it is indicated that the flares combust flammable gases at low ambient pressure without need for blowers or external power. Please ensure that the blowers do not exceed the maximum flow rate of the flares. If the flares cannot be maintained in an acceptably functional state, larger flares or another acceptable engineering solution will be required.
• We acknowledge that the blowers will facilitate the extraction of landfill gas at a higher and more uniform rate. This will help to reduce the offsite migration of landfill gas, and is an approved remedial measure.
Please notify us when the blowers are to be installed.
Id., Ex. 8 (Letter from Dexter to Erichsen of 6/6/02).
On December 31, 2002 Janet A. Parks of St. Mary’s County, Department of Facilities Management, sent the following letter to Caz Szlendak, Marcas L.L.C., stating in pertinent part,
The subsurface testing and monitoring plan for the St. Andrew’s Landfill has been submitted and approved by the State of Maryland. A copy of the plan in enclosed for your use.
I have also enclosed a copy of the right of entry document I previously sent you for review. Please sign and have notarized the right of entry agreement and return to this office.
Id., Ex. 65 at 2 (Letter from Parks to Szlendak of 12/31/02).
On May 30, 2003 Patrick Kelly, a geologist with the Maryland Environmental Service (“MES”), submitted to Mr. Tarr a Landfill Gas Management Plan for St. Andrew’s Landfill. The purpose of MES’s plan “is to augment the existing environmental monitoring plan for the St. Andrew’s landfill developed in February 2002, and address landfill gas management alternatives.” Id., Ex. 9 at 4. As part of its proposed management plan, MES intended to have a geologic study performed to determine the extent of landfill gas migrating off the site. If the study shows off-site migration is occurring, MES listed the additional steps which would need to be taken to quantify and mitigate the gas migration.
*701 If off-site migration of landfill gas proves to be a continuing problem after the corrective action efforts of cell capping and additional active gas removal flares, the addition of an active collection system may be considered between the landfill cells and the property line to prevent off-site migration of landfill gases from the cells. This would require the delineation of the gas plume for placement of extraction gas wells to intercept the migration of gas from the landfill. Vacuum levels will have to be determined to achieve an optimum gas removal rate.
Id., Ex. 9 at 5.
On July 21, 2003, Mr. Szlendak, on behalf of Marcas, signed and had notarized the Right-of-Entry Agreement. See id., Ex. 25 at 2-3; Pl.’s Mem., Ex. 65 at 3-4. On September 11, 2003 Mr. Tarr addressed a letter to Mr. Dexter and enclosed a copy of MES’s Landfill Gas Management Plan for St. Andrew’s Landfill. Mr. Tarr also made a reference to the Right-of-Entry Agreements, stating in pertinent part,
This Department recently acquired the majority of necessary Right-of-Entry Agreements to perform off-site landfill gas sampling on neighboring properties adjacent to the St. Andrews Landfill. A number of adjacent landowners have been nonresponsive to the request, and we feel it is prudent to move forward with the field work in a timely fashion. Field work is tentatively scheduled for October 2003 and we invite your staff to be present. Based on results of the field work, a meeting will be requested with your Department to discuss the findings and determine the appropriate plan of action; and the Management Plan will be revised accordingly, as may be required.
Id., Ex. 9 at 2 (Letter from Tarr to Dexter of 9/11/03).
Several months later, on January 15, 2004, Mr. Tarr sent another letter to Mr. Dexter. The letter concerned, among other things, the Landfill Gas Investigation at St. Andrew’s Landfill.
As you are aware, field work for the St. Andrews landfill gas investigation beyond the property boundary began on November 13, 2003 and the majority of the work around the eastern portion of the property was completed at that time. The results from the work were reported to Mr. Ed Carlson on November 14, 2003 and he was satisfied with same. Field work to complete the investigation began January 14, 2004 and was complete this date. Please find attached a copy of the preliminary investigative results, a final report will be provided by GCI Environmental Services in the near future.
As depicted, landfill gas has migrated beyond the property boundary along the eastern boundary of the St. Andrews Landfill, Cells 1, 2 and 4. In addition, landfill gas was detected (Sample ID# 27) along the northern portion of the County property near Gas Well # 8 at the property boundary. As a result, this Department sampled the crawl spaces of the nearest two (2) residences and no landfill gas was present. This Department has instructed GCI Environmental Services to return to the site next week to expand the investigation, namely around the residence adjacent to the positive reading. Also, Gas Wells 8 & 9 were sampled to determine if the combustible gas present is methane and/or volatile organic compound(s). Once the results are available, a copy will be forwarded to your Department.
Consistent with our meeting held on November 4, 2003, the Maryland Environmental Service (MES) will revise the existing landfill gas management plan based on this investigation and include *702 the recommended remedial action within 30 days. This revised plan is intended to replace the plan previously submitted to your Department on September 11, 2003. Once the gas eontrol/remediation approach has been selected by the County, a public information meeting will be scheduled to inform the community of the landfill gas situation and the selected control measures.
Id., Ex. 24 at 2 (Letter from Tarr to Dexter of 1/15/24).
Less than 10 days later, on January 23, 2004, George Erichsen, Director, St. Mary’s DPW & T, addressed a letter to Mr. Szlendak, Marcas L.L.C., stating,
This Department annually conducts environmental sampling and analysis at the St. Andrews Sanitary Landfill as per Federal and State requirements. On January 22, 2004, the Department concluded its annual sampling event, which included an investigation to determine the possibility of landfill gas migrating from the landfill and the extent of same.
Based on preliminary findings on the County property and samples taken on [Tax Map 34 Parcel 455 the Marcas’ Property], landfill gas has migrated approximately 200' beyond the County property boundary. The samples with positive results are not uniform around the landfill and suggest isolated areas will require some sort of remedial action in order to prevent any further landfill gas migration from occurring in the future.
We continue to work with the Maryland Department of the Environment; and if a remedial action is implemented, you will be notified accordingly. Lastly, we may need to perform additional sampling beyond our property boundary in accordance with the provisions of the Right-of-Entry Agreement forwarded to you previously by the County’s Real Property Manager, Joyce R. Malone. If a remedial action is required, the provisions in the Right-of-Entry Agreement may need to be revisited accordingly.
We will continue with the annual environmental sampling and analysis as required to ensure the health and safety of the community and we apologize for any inconvenience the testing may have caused. We thank you for your continued cooperation.
Id., Ex. 26 at 2 (Letter from Erichsen to Szlendak of 1/23/04); Ex. 46 at 2 (Letter from Erichsen to Szlendak of .1/23/04).
Mr. Szlendak claims he did not receive the January 23, 2004 letter from Mr. Erichsen. Second Am. Compl. ¶ 64.
On April 30, 2004 GCI submitted a written report to Mr. Tarr about the Soil Gas Survey conducted November 13-14, 2003, January 14-15, 2004 and January 22, 2004 with regard to St. Andrew’s Landfill. GCI summarized the data stating in pertinent part,
The highest landfill gas concentrations were measured at SG-4, SG-13, SG-14, SG-16 and SG-27. These relatively high concentrations ranged from 8% by volume methane at SG-4 to 68% by volume methane at SG-16. All of these monitoring points are located northeast of the waste disposal except for SG-27, which is located along the northwest boundary of the County property.
The property boundary northeast of the waste disposal area that divides the County property and Parcel No. 455 [Marcas] traversed a heavily wooded area and was not marked in the field so it is not clear if the soil gas monitoring locations, SG-4, SG-13, SG-14 and SG-16 are located on County property or on Parcel No. 455. These locations were assumed to be just over the County *703 property line on Parcel No. 455 based on field measurements.
The soil gas monitoring locations, SG-8, -9, -10 and -11, are located east of the waste disposal area on private property on Parcel 455. These locations are approximately 200-ft beyond the gas monitoring wells, GW-3 and GW-4. Quarterly gas readings measured at GW-3 and GW-4 in March 2004 ranged from 44% by volume methane to 54% by volume methane.
In summary, based on the soil gas data obtained during this survey the landfill gas concentrations measured along the property line northeast and east of the waste disposal area are above regulatory criteria and have migrated onto private property to a limited extent. The elevated landfill gas concentrations measured at GW-3 and GW-4 during the quarterly gas monitoring events does not appear to be migrating onto Parcel 455.
Pl.’s Mem. Supp. Mot. Partial Summ. J. (“Pl.’s Mem.”), Ex. 20 at 3 (Letter from GCI to Tarr of 4/30/04 at 2).
On August 11, 2004 Marcas, as the seller, and Lincoln Property Company Southwest, Inc. (“Lincoln”), as the buyer, executed a Lot Purchase Contract whereby Marcas agreed to sell and Lincoln agreed to buy certain residential building lots (POD 2 and POD 3) in the First Colony Planned Unit Development. Lincoln intended to construct new homes for the U.S. Navy. Id., Ex. 21; Def.’s Reply, Ex. 50.
According to Marcas, the January 23, 2004 letter from Mr. Erichsen and addressed to Mr. Szlendak was discovered in the files maintained by St. Mary’s County DPW & T on September 8, 2004. Second Am. Compl. ¶ 64. In the following memorandum Mr. Tarr, Solid Waste Manager, acknowledged having contact with a Marcas representative in September 2004.
This Memorandum serves as an update to the file regarding the St. Andrews Landfill Environmental Sampling and the possibility of residential units being constructed adjacent to same at the First Colony property(s). Attached are copies of transmittals to the referenced agency requesting information on the landfill and the status of the environmental sampling conducted to date. Mr. Chuck Miller of PF Summers, Inc. requested the information mentioned above as part of an environmental assessment for the First Colony Subdivision. Upon review of the information provided on September 9, 2004, Mr. Miller visited this Department ... In addition, Mr. Miller requested a brief overview of the data, prior investigations, status of the landfill operation, any future remedial action(s) which may be necessary as per Federal and State Regulations and the current closure project.
Mr. Miller was provided a brief overview of the information requested and was informed that all actions performed to date have been in accordance with Federal and State Regulations and concurrence from the Maryland Department of the Environment. Mr. Miller was satisfied with the information provided, current status of the sampling protocol and the possible future remedial actions required to address environmental requirements.
Def.’s Reply, Ex. 15 at 2 (Mem. from Tarr to File of 9/10/04). Mr. Tarr provided courtesy copies of this memorandum to file to Mr. Erichsen, Director of St. Mary’s County DPW & T and to the Deputy Director, John J. Groeger.
Having learned about Mr. Erichsen’s January 23, 2004 letter in September of 2004, Marcas “commissioned ARCADIS G *704 & M, Inc. to investigate the potential environmental impacts to the Property resulting from [the County’s] Landfill.” Second Am. Compl. ¶ 68. Meanwhile, Mr. Erichsen wrote a memorandum to George G. Forrest, County Administrator, regarding the Szlendak Meeting/First Colony and landfill related matters, stating in pertinent part,
As you are aware, yesterday there was a meeting at Land Use & Growth Management on the above-referenced matter. In addition, on September 29, 2004 there is a follow-up meeting with Mr. Szlendak and Paul Summers to walk the subject properties and explain our operations further. Of particular interest may be the following items, which have also been attached for ease of reference.
• Our January 28, 2004 coordination letter with Mr. Szlendak advising him of the results of gas migration beyond the St. Andrews Landfill boundary line.
• Our May 10, 2004 formal letter to the MDE submitting the Fall 2003 Semi-Annual Gas Monitoring Report for their review.
• The MDE’s June 24, 2004 approval of our remediation plan addressing the off-site gas migration after review by the Maryland Environmental Service.
* * *
• We met with P.F. Summers’ representative, Mr. Chuck Miller, on September 9, 2004 and transmitted information both that day and the following day as evidenced by the attached transmittals.
• Landfill gas also can result [in] elevated readings in our groundwater monitoring wells. The County is installing eleven (11) blowers and gas flares in conjunction with the closure project, which is almost completed. The remediation trenches approved by the State will address the gas and groundwater monitoring results. In fact, the trenches may also be flared to avoid any odor-related side complaints near residential properties.
• Apparently P.F. Summers has conducted portions of a Phase I environmental study as a part of marketing the development of a portion of First Colony as residential Navy housing. He advised that he would forward the results to us in the future.
Def.’s Reply, Ex. 27 at 3 (Mem. from Erichsen to Forrest of 9/29/04 at 2).
That same day Mr. Tarr wrote the following memorandum to file.
This memorandum serves as a followup to the attached 9/29/04 memorandum to the County Administrator regarding the St. Andrews Landfill Environmental Sampling. On this date, a meeting was conducted and the following individuals were present: Mr. John Groeger, Deputy Director; Mr. Caz Szlendak, Porto Bello Development Company, Inc.; Mr. Paul Summers, PF Summers, Inc. and myself. The meeting was requested by Mr. Szlendak as a follow-up to the 9/28/04 meeting held at the Department of Land Use and Growth Management.
A brief overview of the information contained in the Landfill Gas Remediation Plan, prepared by the Maryland Environmental Service and approved by the Maryland Department of the Environment (MDE), was provided to Mr. Szlendak and Mr. Summers. The primary concern expressed by Mr. Szlendak was the extent of landfill gas migrating from the St. Andrews Landfill and its potential impact on the future development of residential dwellings in the PUD at First Colony.
Mr. Szlendak was informed that he will be receiving a revised Right-of- *705 Entry Agreement from the County requesting continued access to his property ... for the possibility of additional sampling associated with the landfill gas remediation plan, and 8) Access from his property for the construction of a trench system to prevent migration of landfill gas from out property in FY06, with the design in FY05.
* * *
Lastly, Mr. Szlendak was informed that the MDE has approved all efforts by the County to address the above mentioned issues and any future initiatives will be coordinated with the MDE. Mr. Szlendak requested to be kept aware of any remedial actions associated with his property and this Department agreed to same.
Id., Ex. 27 at 2 (Mem. from Tarr to File of 9/29/04); Pl.’s Mem., Ex. 23 at 2 (Mem. from Tarr to File of 9/29/04).
About one month later, William Roger Truitt, Esquire, counsel for Marcas, sent the following letter to John P. Norris, III, County Attorney, St. Mary’s County.
On behalf of my client, Marcas LLC, I would like to thank you and the other St. Mary’s County officials who met with me and my client’s representatives last Thursday in Leondardtown. I believe the meeting was productive in terms of the information exchanged and I am hopeful that the County and my client can reach an amicable and timely resolution of the remaining First Colony development issues, including those associated with the St. Andrews Landfill.
At the conclusion of the meeting, Caz Szlendak provided County Administrator George Forrest "with a copy of an October, 2003 Phase I Environmental Site Assessment performed by GeoTechnology Associates, Inc. (“GTA”) and a January 19, 2004 letter from GTA reporting on the installation and field-screening of five soil-gas monitoring points on a portion of the First Colony PUD known as Settlers Landing, which is just north of the St. Andrews Landfill. This was a portion of the information requested from my client by George Erichsen.
The balance of information requested by Mr. Erichsen is enclosed and consists of a letter and report prepared by Mr. Lawrence Hosmer, a professional engineer with 34 years experience at more than 250 landfills across the country. Mr. Hosmer is a Senior Vice President of ARCADIS G & M, Inc., an international environmental consulting firm. The enclosed materials provide a more detailed version of Mr. Hosmer’s evaluation of the St. Andrews Landfill than there was time to present to County officials last Thursday and include specific recommendations with respect to gathering more data and implementing certain remedial measures that will help ensure public safety.
Please note that Mr. Hosmer estimates that implementation of these recommendations by the County will cost in the range of $750,000. When amortized over 20 years at the County’s current Maryland Water Quality Financing Administration rate (2.4%), the additional costs to protect future residents of First Colony amounts to approximately $50,000 per year. This compares to approximately $230,000 per year in additional property taxes that I understood the County is being paid by my client for the undeveloped portion of First Colony and to revenue several times that amount that the County will realize once the development is finished. Therefore, the County’s prompt completion of a comprehensive remedial investigation of necessary and appropriate remedial measures for the St. Andrews Landfill is in the best financial interests of St. Mary’s County.
*706 The owners and developers of First Colony have already incurred more than $4.8 million of extraordinary expenses, including nearly $1.5 million in public water facilities which have been dedicated to METCOM and provide protection to human health through the drilling of two deep wells into the Patapsco aquifer. A July 29, 2004 letter from Harry Blumenthal to Denis Canavan documenting these expenses is enclosed. It is clear, therefore, that significant off-site response and infrastructure costs have already been invested by the owners and developers of First Colony to assist the County’s remediation efforts at the St. Andrews Landfill.
As we discussed at our meeting last Thursday and as detailed in the enclosed materials, very similar circumstances to the St. Andrews Landfill arose in connection with Harford County’s Tollgate Landfill about 15 years ago. In that case, ARCADIS helped the County design and install an active landfill gas and groundwater extraction well system within a period of six months to forestall litigation threatened by the developer of adjacent condominiums that were impacted by the landfill. Not only was litigation avoided, but the aggressive engineering approach taken by the County was much less expensive than acquiring a buffer zone that may not have been adequate. Thanks to ARCADIS’s design and the County’s proactive approach, the Tollgate Landfill and its condominium neighbors coexist today without any reported problems.
Please be aware that' I have been advised by my client that Lincoln Properties Company, the contract purchaser for portions of the First Colony property, has just been awarded a contract for U.S. Naval housing. As a result, First Colony will need to make available 240 units for Naval housing between July 2005 and January 2006. Therefore, the environmental issues associated with the St. Andrews Landfill and the remaining development issues need to be resolved promptly.
After you and your client have had an opportunity to review these confidential settlement materials, please call me to discuss how and when the County plans to incorporate them into its remedial design. My client will cooperate with the County in granting access for testing on the First Colony property, with the services of Mr. Hosmer and others at his firm available to assist the County and its consultants in developing and implementing appropriate remedial responses for the St. Andrews Landfill. I look forward to hearing from you within the next 10 days concerning this matter.
Def.’s Reply, Ex. 47 at 2-4 (Letter from Truitt, Esq. to Norris, Esq. of 10/26/04 at 1-3); Pl.’s Mem., Ex. 24 at 2-4 (Letter from Truitt, Esq. to Norris, Esq. of 10/26/04 at 1-3).
The aforementioned report by Mr. Hosmer is dated October 27, 2004 and is addressed to Mr. Truitt.
ARCADIS G & M, Inc. (ARCADIS) herewith transmits an initial report entitled “Remedial Program Evaluation for St. Andrews Landfill” (SAL), located in St. Mary’s County, Maryland. The intent of this report was to review and evaluate basic data available for the site with respect to the potential for environmental releases to neighboring property to the east and northeast (onto Parcel 455 owned by the First Colony development), and to assess the potential exposure of proposed residences in that area to contaminants from the landfill. This situation is not uncommon, particularly in urban areas where development near existing landfills is proceeding. A very similar project at the Tollgate Landfill *707 in Belair, Harford County, Maryland indicates expectation of environmental conditions in such an instance, and provides guidance for a reasonable and safe resolution. At the Tollgate Landfill, a proactive, aggressive landfill gas and leachate management system permitted the development on an adjacent property on an expedited schedule, and has resulted in protection of the public for the ensuing 15 years.
After reviewing the reports available to date regarding SAL, and meeting with St. Mary’s County staff, ARCADIS has established the following conclusions and recommendations:
1. Fill “data gaps”: Data gaps have been noted based on the available reports. These data gaps can be resolved by a more comprehensive field investigation to determine ... landfill gas migration, and geologic conditions in the vicinity of the northeastern boundary of SAL, and extending onto Parcel 455. Specifics with respect to the design and operation of the landfill, as well as the Maryland Environmental Service (MES) recommended design for the remedial system, would aid in refining the remedial program.
2. Implement an active gas extraction system: An active landfill gas extraction system is recommended along the northeastern boundary of the SAL as a result of methane concentrations exceeding the regulatory limit for methane on property beyond the landfill boundary. Methane, at high levels, is unsafe due to its explosiveness if allowed to accumulate beneath structures. Additionally, VOCs that have been detected in the groundwater and surface water are most likely partitioning into the subsurface, or migrating coincident with the landfill gas. Although the VOCs may be below maximum contaminant levels in the groundwater, the inhalation pathway may result in adverse health effects in residents at that location.
* * *
6. Enhance security: A security fence should be installed to deter site access along the northeastern boundary. This additional security would reduce the risk of injury as well as maintenance due to lesser accessibility.
Before a final remedy can be implemented that is protective of future residents in the proposed First Colony development, further investigation of the landfill gas ... on Parcel 455 is warranted. This information will identify risk factors to proceeding with development at this time, and serve as a basis for designing an appropriate mitigation system on the SAL by the County. At this time, it is recommended that enhancements to the MES proposed remedy are warranted and necessary to protect public health and safety.
Our independent cost evaluation to implement the MES preferred alternative for a passive gas extraction system indicates a projected cost in the range of $170,000 to $200,000. The additional cost to convert this passive gas extraction system into an active gas extraction system, as perceived by the County, is approximately $60,000. These costs represent capital costs only, excluding operation, maintenance, and monitoring (O & M) activities which will be required regardless of the system instituted. An opinion of probable construction cost for implementing a more comprehensive remedy that considers each of the six issues identified above, again excluding O & M, but including ... an active gas extraction system, and an enclosed central flare will require funding at a level of approximately $750,000 above the MES preferred remedy cost, or a total on the order of $920,000 to $950,000.
*708 The major components of this work would include:
Site preparation and construction sup- $ 80,000 port
Supplemental cap $220,000
Active gas management system, includ- $225,000 ing trench and enclosed flare
Site security $ 30,000
Design, administration and contingency $265,000
We trust this information, discussed in greater detail in the attached report, provides a basis to proceed with further discussions between First Colony and St. Mary’s County. If you have any questions concerning the information provided herein, please do not hesitate to contact us.
Def.’s Reply, Ex. 11 at 2-4 (Letter from Hosmer to Truitt, Esq. of 10/27/04 at 1-3).
Meanwhile, on November 8, 2004, Richard N. Rose, Vice President, Lincoln Property Company Southwest, Inc., sent a letter to Mr. Szlendak of Marcas and Mr. Paul Summers of PF Summers Inc. regarding the August 11, 2004 Lot Purchase Contract between Marcas and Lincoln.
It is my understanding from several conversations with Paul Summers that Marcas, LLC would be willing to provide Lincoln Property Company Southwest, Inc. or its assigns a total of 240 residential lots in its First Colony Development, under similar terms and conditions of the above referenced contract. There would be a minimum of 176 single family detached lots and a combination of 64 duplexes and triplexes.
If you are in agreement with this please sign below and return a copy of this letter to me. Upon receipt, we will then prepare an amendment to document the corrected location of the land. Thank you and we look forward to working with you on this project.
Pl.’s Mem., Ex. 25 at 2 (Letter from Rose to Szlendak & Summers of 11/8/04). Both Mr. Szlendak and Mr. Summers signed and dated the document on November 8, 2004.
On November 15, 2004 a meeting was held involving five officials from the MDE, one individual from GCI, one official from MES and Mr. Tarr of St. Mary’s County. Mr. Tarr prepared the meeting minutes.
St. Andrews Landfill
Landfill Gas Remediation Update
Proposed County schedule as per correspondence dated October 15, 2004
The schedule as proposed to construct and install the passive/active trenches was discussed. Currently the system is being designed by the Maryland Environmental Service (MES) and is anticipated to be completed/submitted to the Maryland Department of the Environment (MDE) for review and approval by April 1, 2005; request for bid to construct by July 1, 2005; award/ initiate the project by August 1, 2005 and complete construction by November 30, 2005. At present, the County will proceed with the design and awaits a formal response from MDE regarding the proposed schedule, 8
Will additional sampling along the Eastern portion of property, slightly north of previous event based on investigation conducted by Geo-Technology Associates, Inc. as per their report date January 19, 2004, be required by MDE? Upon discussion of same, it was agreed that if the First Colony Developer is planning to perform their own investigation and provides same to the County and MDE in the near future, the results will be included in the design consider *709 ation for the landfill gas remediation system.
Should the County convert proposed remediation from passive trenches to active?
Upon discussion of same, the MDE expressed reservation in requiring the trenches to be active as they were originally approved. They have indicated that by making the trenches active, it may influence the migration of landfill gas from the landfill; thus they will conduct a meeting between their own staff to determine the status of passive v. active in l[i]eu of their previous approval of the remediation plan and if they revise their prior approval, the County will be notified immediately. The MDE recommends, as of this date, constructing the trenches to be active, however only implement same to be passive and if necessary, convert the trenches to an active system. The County advised that the design has begun in accordance with their approval to date.
Should the County modify the approved existing gas extraction system installed as part of the closure to a single flare for both sides?
The MDE has expressed an interest in the possible conversion of the landfill gas extraction system atop the landfills to utilize a centralized blower system possibly drawing a greater vacuum. This approach may further minimize the likelihood of gas migration, however, since the trench will be installed, too much oxygen may be introduced into the landfill and create landfill fires in the future which would be nearly impossible to extinguish once sta[r]ted. The County concurs with this observation. The MDE will provide their final recommendation in the near future once they have discussed and agreed upon same with their own staff. The County advised that sufficient time should be allowed to ascertain if the blowers and the planned trench remediation achieves the desired results.
Def.’s Reply, Ex. 12 at 3-4 (MDE/St. Mary’s County Meeting Minutes of 11/15/04 at 2-3).
On December 6, 2004 Mr. Tarr wrote another memorandum to file.
This Memorandum serves as an update to the file regarding the St. Andrews investigations previously performed, under way or planned for the future.
The St. Andrews Landfill continues to be monitored (... landfill gas) and the results of same are forwarded to the Maryland Department of the Environment (MDE) for their review and comment. To date, no comments have been received from the MDE regarding the results and based on historical meetings with the MDE, the monitoring has continued and no additional measures have been taken. The continued monitoring of the landfill has been consistent with direction from the MDE and the Director of this Department, Mr. George Erichsen, with no additional work being performed....
Lastly, as of this date, no information has been provided to the County regarding the field investigations being performed by an Environmental Engineering Firm hired by Mr. Caz S[z]lendak for the First Colony property. Mr. Erichsen has provided direction to myself that the County will not perform additional work unless the MDE directs the County to perform same or if Mr. S[z]lendak does not provide the field results; the additional information, if available, will be utilized for the landfill gas remediation design. Mr. Erichsen has directed myself to continue with the schedule to complete the landfill gas remediation project for the St. Andrews *710 Landfill as proposed and current of this date, regardless of the possible future development in the near future.
PL’s Mem., Ex. 26 at 2 (Mem. from Tarr to File of 12/6/04).
Ms. Hynson of MDE responded to Mr. Tarr’s November 17, 2004 9 letter stating in pertinent part,
This letter is in response to your submittal to the Maryland Department of the Environment (the “Department”) dated November 17, 2004, consisting of meeting minutes from the November 15, 2004 joint meeting on St. Andrews Landfill. The meeting was held to discuss the proposed landfill gas remediation plan....
In response to the issues raised at the November l[5]th meeting as well as your meeting minutes, the Department offers the following comments:
East Side:
You state that the First Colony developer might be planning to conduct additional gas sampling along the northeastern portion of the property. The Department would accept the results of this sampling. If the developer does not conduct the sampling, the Department recommends that the County conduct additional sampling to determine the extent of gas migration from the landfill.
The Department had previously approved the County’s plan to install an active gas trench along the eastern portion of the landfill. Operating an active system beyond the limit of waste could intensify the negative pressure gradient outside the fill. This process could magnify the migration of landfill gas beyond the footprint of the landfill towards the property boundary, which could increase the partitioning of volatile compounds into the groundwater. It is possible that a passive trench might sufficiently reduce the offset gas concentrations. It is therefore recommended that the trench be operated as a passive trench initially, but be constructed so that the trench could be converted to an active trench quickly should subsequent sampling results indicate a more proactive approach is necessary. It is recommended that monthly gas monitoring be done from new gas wells to be installed between the trench and the new development. Should the sampling results indicate that the passive trench was not sufficiently reducing the gas concentrations within a three-month period, the County would then convert to an active trench.
Def.’s Reply, Ex. 13 at 2 (Letter from Hynson to Tarr of 12/21/04 at 1).
On December 28, 2004 Mr. Hosmer submitted another report to Mr. Truitt, counsel for Marcas, upon performing an additional site evaluation, stating in pertinent part,
In response to the meeting with St. Mary’s County Government (the “County”) on October 22, 2004 and our subsequent discussions, a preliminary Supplemental Site Evaluation has been conducted for Parcel 455 of the First Colony Development in California, Maryland. The purpose of this evaluation was to confirm and further delineate the findings expressed in the document entitled “Remedial Evaluation Program for St. Andrew’s Landfill, St. Mary’s County, Maryland, prepared by AR-CADIS G & M, Inc. (ARCADIS) and dated October 27, 2004.” The ARCADIS report consolidated information previously prepared for, and made available by St. Mary’s County relative to *711 environmental conditions at the neighboring St. Andrew’s Landfill (SAL), which borders Parcel 455 to the southwest and west. The data provided included ... landfill gas monitoring activities at the SAL in the vicinity of the property boundary, prepared by GCI Environmental Services (GCI), and a subsequent “Landfill Gas Remediation Plan for the St. Andrew’s Landfill”, prepared by the Maryland Environmental Service (MES), both under contract to St. Mary’s County.
A preliminary field investigation program was developed to fill “data gaps”, as identified in the ARCADIS report, to confirm the prior findings to the extent possible, and to extrapolate the database into areas of the site and media not previously addressed. The focus of this investigation was the two development modules on Parcel 455 that are slated for residential and/or mixed development in the immediate future, identified as POD 2 and POD 3, and the intervening conservation and recreational areas. These areas of development bound the SAL to the southwest and west. In addition, a site reconnaissance of POD 6 was also conducted to identify any evidence of environmental degradation that could adversely affect future development. Environmental Resources Management, Inc. (ERM) of Annapolis, Maryland implemented the field program; the results of the data collection effort are presented by ERM in their report entitled “Submittal of Field and Laboratory Data Related to the Investigation of Parcel # 455 Near St. Andrews Landfill (SAL), St. Mary’s County, Maryland”, dated December 20, 2004, a copy of which is attached.
SUMMARY OF FINDINGS
While not exhaustive with respect to data point distribution or comprehensiveness, the Supplemental Site Evaluation program confirmed that landfill gas ... [has] migrated beyond the limits of the SAL and onto Parcel 455 of the First Colony Development. This finding is consistent with that of GCI, as consultant to St. Mary’s County, and as predicted by ARCADIS in their October 27, 2004 report. Further, the current evaluation also included an environmental reconnaissance and preliminary investigations on the interior of POD 2 with respect to the presence of landfill gas to establish the extent of gas migration into that area ... Limited analytical samples were collected for confirmation purposes. The goal of this data collection effort was ... to identify a “zero-concentration” line for landfill gas migrating from the SAL onto Parcel 455. The following specific findings were identified:
• While landfill gas continues to migrate onto Parcel 455, as previously concluded by GCI, the stream valleys are controlling the release and further migration of gas toward the east and north, away from the SAL. These streams, and the alignment of FDR Boulevard (indicated on Figure 1), therefore essentially represent the outer boundary of landfill gas migration observed to-date. The “zero-concentration” line presented on Figure 1 approximates this boundary; it may be observed that the area within the “zero-concentration” line appears, based on the development scheme currently under consideration, to be outside the footprint of residential construction for POD 3, and limited to conservation/recreational area between PODs 2 and 3 as well as along the perimeter of POD 2.
• Landfill gas monitoring in the past has included only the constituent methane, but had not considered oth *712 er volatile organic compounds (VOC’s) similar to those previously-identified in the leachate and groundwater releases. The data collected during this investigation confirmed total VOC emissions near the stream valleys, but these VOC levels were not differentiated by compound; it is anticipated that the compounds present in the leachate and contaminated groundwater will also be represented in the landfill gas.
• The SAL property is not secure from unauthorized access at the present time. After development on Parcel 455, access will become more readily available with the close proximity of residences, roadways and commercial establishments. This situation could cause significant potential public safety concerns through exposure to the environmental controls (i.e., open flame flares), mechanical and heavy construction equipment and physical hazards prevalent on the SAL. In addition, seeps, ponded liquids, gaseous emissions and other indications of environmental releases were present on the SAL during the investigations; these would create exposure pathways for humans unless unauthorized access is prevented through security controls (i.e., fencing).
DISCUSSION
The specifics of the data collection effort conducted during this Supplemental Site Evaluation are presented in the ERM report, attached, and are not reiterated herein. In general, these investigations served to independently document the findings presented above. They also serve to validate the conclusions drawn in the ARCADIS report concerning actions appropriate at the facility to assure protection of the public health and safety. All data available from the ERM data summary and the prior investigations by GCI, as consultants to the County, have been utilized in the following analysis.
Landfill Gas
The “zero-concentration” line for landfill gas migration, as determined utilizing a combination of the current data and that obtained previously, is approximately west of FDR Boulevard and generally south of POD 2, with limited indications at the perimeter of POD 2. It appears from the data collected during the Supplemental Site Evaluation that the topographically higher, less eroded areas of the site are overlain with a mantel of fine-grained soil that act as a “cap” where present. In these areas, gas is literally transmitted in the subsurface rather than discharged to the atmosphere since the subsurface soils are more porous and afford a “path of least resistance” to migration. However, near the stream valleys, where erosion has incised the surface fine-grained soils, the groundwater lends to discharge, and the landfill gas is free to daylight at the surface. This situation was observed along the length of the stream traversing Parcel 455, particularly in the conservation/recreational area north of the recreational area, and to a lesser extent on the southern and western boundaries of POD 2. Along these stream reaches, methane and VOC emissions were observed where they were generally not observed in the higher elevations. However, at least one location in the higher elevations, SG-16, yielded positive landfill gas indications; this was in the vicinity of the highest results obtained previously by GCI, as would be expected.
The data collected at depth by GCI, as well as the several recent shallow locations, indicates that the migration of *713 landfill gas onto Parcel 455 is occurring through the subsurface, with releases to the atmosphere at locations of enhanced permeability in the surface soils. Therefore, where landfill gas has been identified, residential construction with basements or other subsurface structures, as in the recreational area, is not recommended to assure the protection of public safety. This would include the outer perimeter of POD 2 and the entire conservation/recreational area. The interior of POD 2 was only explored with near-surface techniques; therefore, it is not certain, without additional study, whether landfill gas has migrated into this area. The presence of landfill gas at the perimeter of POD 2, and the potential for this gas to migrate upgradient toward the interior suggests that the possibility of gas migrating beneath structures in the interior of POD 2 is likely. Therefore, residential construction with basements in this area is also not recommended given that: 1.) Residences with basements would require mechanical systems to assure that no gas accumulation could occur; and 2.) Homeowner maintenance of such systems is not a reliable solution to mitigating this potential risk. The use of near-surface foundation/slab construction in the interior of POD 2 would not require such systems, and would therefore be protective. PODs 3 and 6 have not yielded any indication of landfill gas migration, and therefore could be constructed with basements.
In general, the release of landfill gas from the SAL onto Parcel 455 must be addressed to protect public safety after development of the parcel occurs, particularly with the placement of structures within close proximity of the property boundary in the recreational area and in POD 2, and to be in compliance with the Code of Maryland Regulations (CO-MAR) Title 26 (26.04.07.21), which specify that landfill gas in concentrations about 100% of the lower explosive limit (LEL) cannot be released at the property boundary of the landfill, a condition which currently exists at the SAL. As may be observed on Figure 1, landfill gas levels above the regulatory limit have been identified at distances of up to 250 feet beyond the SAL boundary. Further, the potential composition of the landfill gas, containing VOC constituents, indicates that open flame flares along a remedial trench system along the boundary, as proposed by MES, may not be appropriate. Two issues result from the use of open flares: 1.) The combustion efficiency of an open flare is lower than can be achieved with an enclosed flare, and this greater destruction efficiency may be necessary to contain any emissions from the combustion of non-methanogenic VOCs present in the gas; and, 2.) The flame in an open flare presents a direct public safety issue for potential trespassers on the SAL.
The MES report suggests that an active gas extraction system along the SAL/Parcel 455 boundary is warranted if the property will be developed for residential use. We concur with this position and since such development is proceeding, the MES should be directed to design such a system to intercept landfill gas migrating from SAL toward Parcel 455. The components of such a system should include:
• A cutoff trench which extends to a minimum depth to intercept, and penetrate, the perennial groundwater table elevation along the entire boundary of the SAL/Parcel 455 boundary along an alignment near the toe of the landfill waste as opposed to at the property boundary;
• A relatively impermeable cap (consisting of a minimum of a two-foot *714 thickness of compacted clay) constructed in the area between the existing] landfill cap and exterior limit of the trench to assure capture of the gas for destruction;
• A collection system in the trench connected to a central blower system which removes the gas for destruction at a remote location: i.e., away from the boundary of the landfill;
• Either a central enclosed flare for gas destruction, or demonstration of the combustion and dispersion efficiency of non-methanogenic compounds by an open flare system; and
• Establishment of a long-term landfill gas monitoring network along the interior and exterior of the property boundary to confirm the conformance of the system with the design goals and the COMAE regulations.
It is suggested that such a system could be installed, after proper design, within a period of less than four months, and further, that design and permitting could be affected in less than three months. Therefore, an appropriate system could be installed within 7 months, a period within which residential development of the property could proceed, but during which no residency would be established. This schedule would permit the system to be started-up, balanced and become effective, and would also allow the existing landfill gas in storage in the subsurface on Parcel 455 to dissipate prior to residential use of Parcel 455. As stated in the ARCADIS report, it is anticipated that such a system could be constructed for a total cost of on the order of $690,000, including design, construction oversight and contingency; this amount is approximately $450,000 more than the system projected by the MES, but is also protective of human health and public safety. Given that residences will be located in close proximity to the remedial system and the SAL, public safety must be assured; the recommended system would be more protective from this perspective.
Security
Not only does the SAL represent a potential public health threat through releases to the environment, it can also represent a public safety issue when located in close proximity to a residential development. The SAL will represent an “attractive nuisance” in close proximity to residences, and in particular the active recreational area. The openness of the landfill surface will attract trespassers that could be harmed accidentally on the property. Further, the presence of mechanical equipment, particularly the open flares, could result in accidents, vandalism and liability exposure to St. Mary’s County. It is therefore suggested that the boundary be closed to trespassers to the extent possible by the installation of a fence to prevent ready access to the landfill surface by vehicular and pedestrian traffic, and that mechanical equipment be located remote from residential areas and inside locked containments. While it is recognized that complete containment and protection is not possible, the incidental trespasser will be deterred.
Based on providing fencing along the Parcel 455/SAL boundary in the vicinity of the residential development, it is projected that this remedy will require on the order of $50,000 to implement.
POD 6
A site reconnaissance of POD 6 was independently conducted by ERM and the writer to identify any indications of environmental degradation of the property that would preclude immediate development. The indicators include vegetative stress; evidence of prior site disturbance and/or use for residen *715 tiaVeommercial/industrial purposes; seeps, springs or discharges with visual indications of potential degradation (i.e., color, odor or residual staining); or atmospheric odors. No such evidence was apparent in the reconnaissance conducted by either party (see the ERM report).
CONCLUSIONS
The migration of landfill gas ... from the SAL onto Parcel 455, in particular the areas programmed for the development of POD 2 and the conservation/recreational areas, was confirmed through the conduct of this preliminary Supplemental Site Evaluation ... The nature and extent of the contamination on Parcel 455 is broadly defined by the data collected by ERM in this effort as well as the prior activities of GCI for the County and Geo-Technology Associates, Inc. (GTA) on POD 1.
Id., Ex. 49 at 2-6, 8-9 (Letter from Hosmer to Truitt, Esq. of 12/28/04 at 1-5, 7-8).
Two days later Mr. Truitt, counsel for Marcas, sent the following letter to Mr. Norris, County Attorney for St. Mary’s County.
This letter is sent on behalf of my client, Marcas LLC, as a follow-up to my October 26, 2004 letter to you and our subsequent conversations. Enclosed with this letter is a December 23, 2004 Supplemental Site Evaluation performed by J. Lawrence Hosmer, P.E., who was responsible for the preparation of other technical materials I forwarded to you on October 26, 2004. Also enclosed is a December 22, 2004 letter and data submission from Environmental Resources Management (“ERM”), summarizing a field investigation that was performed by ERM between November 17-22, 2004.
The enclosed documents demonstrate that landfill gas ... from the County’s St. Andrew’s Landfill has migrated onto my client’s property (Parcel 455). The impacted areas include the proposed conservation and recreation areas between PODs 2 and 3. In order to safely develop these areas, Mr. Hosmer has developed a remedial plan which is consistent with the proposal in his October 27, 2004 letter and the accompanying report from ARCADIS G & M, Inc. that I forwarded to you previously. Based on the recent field work performed by ERM at the direction of Mr. Hosmer, it is anticipated that impacts to my client’s property resulting from the St. Andrew’s Landfill could be remedied by the County within seven months for approximately $700,000 if initiated early in 2005.
Please be aware that the U.S. Navy and Lincoln Properties, which had agreed to purchase all of the building lots in PODs 2, 3 and 6, now appear to be backing away from PODs 2 and 3 because of the Landfill’s impacts. Accordingly, it is extremely important that the County immediately begin to implement the remediation program recommended by Mr. Hosmer so that Marcas LLC does not suffer interference with its contracts, its ability to develop the remainder of the First Colony property and other damages associated with the Landfill.
My client hereby requests a meeting during the first week of January with you and/or County Department of Public Works officials to review Mr. Hosmer’s recommendations and to develop a timely implementation plan.
Id., Ex. 48 at 2-3 (Letter from Truitt, Esq. to Norris, Esq. of 12/30/04 at 1-2); Pl.’s Mem., Ex. 27 at 2-3 (Letter from Truitt, Esq. to Norris, Esq. of 12/30/04 at 1-2).
On January 7, 2005 Bill D. McKissick, Jr., Esquire, another attorney representing Mareas, sent the following letter to *716 Denis Canavan, Director, Department of Land Use and Growth Management, St. Mary’s County.
My client, Marcas L.L.C, has proposed relocating Residential Development Area # 2 as described in the Development Plan for First Colony to that area designated as Mixed Commercial Area # 6. This letter addresses whether this change constitutes a “Major Change” or “Minor Change” pursuant to page 13 of the First Colony Development Plan. It is our position that this constitutes a Minor Change.
* * *
The proposed relocation of the residential use to Mixed Commercial Area # 6 will not reduce the open space acreage and will not result in substantive changes in the design standards of roads[,] utilities, water, electricity and drainage. The issue therefore remains as to whether the utilization of Mixed Commercial Area # 6 for residential use constitutes a substantive amendment to the final governing agreements or covenants of the First Colony P.U.D.
Page 32 of the Development Plan provides that in the “Mixed-Use Commercial” the specific permitted land uses and structures include “[a]ll permitted uses in the residential and retail/commercial districts.” Accordingly, the Development Plan specifically permits residential development in Mixed Commercial Area # 6. The utilization of Mixed Commercial Area # 6 for residential development does not constitute a substantive amendment to the final governing agreements or covenants of the First Colony P.U.D.
Accordingly, it is our opinion that the proposed used of Mixed Commercial Area # 6 for residential development constitutes a Minor Change per page 13 of the Development Plan and will require Planning Commission approval in accordance with the process set forth in the Development Plan.
Def.’s Reply, Ex. 32 at 2, 3 (Letter from McKissick, Esq. to Canavan of 1/7/05 at 1, 2).
That same day, Mr. Erichsen sent the following letter to Mr. Dexter.
This Department is in receipt of your correspondences dated December 17 & 21 2004 regarding [landfill environmental monitoring]....
Attached, please find an environmental investigation report drafted by Environmental Resources Management (ERM) dated December 22, 2004 for the First Colony Property, which resides to the Northeast of the St. Andrews Landfill (Landfill). The investigation was performed by ERM, under contract for Piper Rudnick, LLP, whom is legal counsel for the current offsite property owner/developer. As you are aware, the owner intends to proceed through the local approval process to possibly develop the property for residential purposes and conducted the above investigation as part of a site feasibility analysis. The County was previously informed by the property owner that this investigation would be performed and the results would be made available to the County and Maryland Department of the Environment (MDE) for their review and permanent record. As we advised Ms. Hynson on October 26, 2004, we are transmitting the investigation as received on December 30, 2004.
The legal counsel for the First Colony property owner hired an independent consultant (Hosmer & Hosmer) to review and provide additional comment which is also included. As you will note, the consultant believes that an active gas extraction system adjacent to the toe of the landfill, an impermeable *717 cap/barrier and a collection system of pipes and gravel within the trench be incorporated into the collection trench to assure proper capture of the gas, a central enclosed flare or demonstration of the combustion efficiency of an open flare system and a gas monitoring system network to confirm conformance as required should be implemented. Based on your December 21, 2004 correspondence, you recommend the installation of a passive system, which can be quickly converted to an active system, if subsequent sampling indicates additional measures are required. With respect to the possible construction of homes on the adjacent site, we provided the developer’s representative, Mr. P.F. Summers, a copy of the attached Gas Monitor that he agreed to utilize as a part of home construction. The County is currently considering whether to allow development of the affected areas without a Waiver and Estoppel Certificate. The recommendations of Hosmer & Hosmer appear not to be supported even by ERM’s study, but we will need your concurrence prior to directing our consultant on how to proceed with design changes you deem appropriate.
This Department has contracted with the MES to provide the necessary design drawings to install the gas recovery system in order to address the presence of methane. In addition, on December 10, 2004, this Department met with the MES to discuss and conduct a field reconnaissance of the site for MES to acquire the necessary information to complete the design. The MES was instructed to design the system as directed by MDE, that is, to allow easy conversion from a passive to active system, if necessary.
* * *
Hosmer & Hosmer recommends the installation of a perimeter fence or barricade around the landfill to prevent the possibility of trespassers entering the property. The County is currently evaluating its obligations and authority to factor the gas migration into the zoning and planning approval process, including the possibility of restricting certain areas from residential development and/or conditional approval, which requires homes to be constructed with certain protective features such as gas monitors.
The gas recovery system is planned to be installed in accordance with the previously submitted timeline to your Department on November 4, 2004 (see below) which was also shared with the property owner’s representative on December 30, 2004.
Design to MDE for review and approval — April 1, 2005
Request for Bid (Advertisement) to Construct — July 1, 2005
Award/Initiate Construction Contract— August 1, 2005
Complete Construction — November 30, 2005
As mentioned in your December 21, 2004 correspondence, methane has been found off-site, west of the Landfill. The current remediation plan previously approved by your Department recommends an active gas recovery system, however your recent correspondence recommends a passive system unless directed otherwise after review of the attached information provided by the off-site owner. Therefore, the system will be designed, installed and initially operated as a passive system and, if necessary, quickly converted to an active system based on your review of subsequent sampling events which you indicated would occur over “several months”. Monitoring probes will be permanently installed up gradient and down gradient of the recovery system to monitor the effectiveness of the system.
*718 The gas recovery system proposed nearest the onsite buildings associated with this Department will be relocated and placed adjacent to the old landfill. The relocation of the system will facilitate the capture of gas, eliminate any possible offsite migration and address the recent isolated issue of gas entering the Recreation & Parks Office. Again, permanent monitoring probes will be installed in the vicinity of the recovery system to ensure the proper capture of the gas. As you are aware, quarterly sampling for the presence of gas is conducted in the Scale House, Recreation & Parks Office and Transportation Shop. Based on the recent findings in the Recreation & Parks Office, continuous gas monitors (see attached) are being installed in the previously mentioned buildings to continuously sample the atmosphere.
This Department concurs with your recommendation to continue utilizing the existing gas extraction system atop the Landfill and monitor same periodically to ensure proper operation, particularly after the installation of the perimeter gas recovery system.
Id., Ex. 51 at 2-3 (Letter from Erichsen to Dexter of 1/7/05 at 1-2); Pl.’s Mem., Ex. 28 at 2-3 (Letter from Erichsen to Dexter of 1/7/05 at 1-2).
On January 10, 2005 Mr. Norris, County Attorney sent the following letter to Mr. Truitt, counsel for Marcas.
This letter responds to your letter dated December 30, 2004 regarding the impacts of St. Andrews Landfill gas migration to property owned by Marcas LLC (Parcel 455). While the County appreciates the efforts of your client to provide guidance and advice on the development of a remedial plan for the migrating landfill gas, your client must understand that the approach the County selects will be made in accordance with the procedures it has in place and based on the evaluation and advice of its consultants. That is not to say that the County will ignore the suggestions of ERM or Mr. Hosmer. In its decision-making, the County will take all suggestions and advice into account.
In response to your assertion regarding potential damage suffered by Marcas, LLC, I would counter that your client assumed the risk of those damages long ago. Specifically you refer to “interference with its contracts, its ability to develop the remainder of the First Colony property and other damages associated with the landfill.” No such damages could be attributed to the County based on the facts and applicable law. Marcas LLC acquired Parcel 455 on May 8, 1998 with full knowledge of the presence of St. Andrews Landfill, its potential to generate landfill gas and the potential for the gas to migrate to adjacent properties. The County began negotiating an access agreement with First Colony/Marcas LLC in 2000, if not earlier, for the purpose of installing and constructing groundwater monitoring wells on Parcel 455. The negotiations resulted in the Right of Entry Agreement, dated August 5, 2003, by and between the County and Marcas LLC. Typical of landfill closures, the issue of migrating landfill gas has been a focus of the landfill closure efforts. In closing the Landfill, the County has followed and complied with the landfill closure process governed by state and federal solid waste laws and regulations and overseen by the Maryland Department of the Environment (“MDE”) and the landfill closure process has been conducted openly and publicly. Your client has had full access to public notices and public information hearings held in accordance with the law and regulations.
In light of these facts, Marcas LLC entered into the contracts with U.S. *719 Navy and Lincoln Properties with full knowledge that the landfill gases were likely migrating from the St. Andrews Landfill onto and under Parcel 455. Also, since final zoning and planning approvals have not yet been issued, no property rights have vested related to your client’s future development plans. In sum, although the negative consequences of U.S. Navy and Lincoln Properties withdrawing from prior agreements would be unfortunate for your client and the County, any monetary damages suffered by Marcas LLC would not be the responsibility of the County. It is very unlikely that the County could be found liable in tort for choosing a remediation plan in compliance with federal and state law. Should these parties decide to terminate their contract with Marcas LLC, such action could not be attributable to any wrongful conduct by St. Mary’s County.
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 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 ... from beyond County boundaries and to control the methane extraction safely within its property, all in accordance with MDE requirements. The County does not have the obligation to meet the development schedule of Marcus LLC. Furthermore, the risk of direct impact from the release of methane gas is heightened when, or if, development is approved and substantially increased again when the area becomes occupied. This increased risk should not be assumed by the County since it is not the generator of the risk. However, if your client desires the more extensive and costly remedies outlined by Mr. Hosmer to further its future use plans for the property, the County could entertain such additions. The County’s advisors would have to review and approve the enhancements. Such enhancements would need to be incorporated into the approved Plan so as not to delay its implementation, receive MDE approval and be paid for by your client. In addition, I am recommending that the County require the enclosed Waiver and Estoppel Certificate.
I will need to discuss these positions with the County Commissioners, but welcome the opportunity to meet with you and your client to discuss these matters and agree that the meeting should take place soon.
Def.’s Reply, Ex. 29 at 2-3 (Letter from Norris, Esq. to Truitt, Esq. of 1/10/05 at 1-2); Pl.’s Mem., Ex. 29 at 2-3 (Letter from Norris, Esq. to Truitt, Esq. of 1/10/05 at 1-2).
The following day, January 11, 2005, R. Jarl Bliss of Lincoln Property Company sent the following letter to Mr. Erichsen of St. Mary’s County DPW & T.
As you know, Lincoln Property Company plans to acquire certain residential building lots from MARCAS, LLC in the First Colony Planned Unit Development (PUD) for purposes of constructing new homes for the U.S. Navy.
Lincoln Property Company understands that the First Colony PUD is situated adjacent to the St. Andrews Landfill which is owned and was former *720 ly operated at St. Mary’s County and is presently undergoing remediation and closure pursuant to the requirements of the Maryland Department of the Environment. It is also understood by Lincoln Property Company that most of the remediation has been completed and the County is in the process of designing additional landfill gas and sediment and erosion control facilities on the eastern perimeter of the Landfill which abuts the First Colony PUD. The County has advised it will have funding to begin construction of these additional facilities in July 2005 and expects completion within approximately 2-8 months thereafter. After construction is completed, the County has stated that it will initiate a comprehensive monitoring program to confirm that the Landfill’s remedial facilities are preventing the migration of landfill gas into residential areas of First Colony.
I would appreciate your confirmation that my understanding concerning these matters is correct by signing below and returning a copy of this letter to my attention.
Def.’s Reply, Ex. 33 at 2 (Letter from Bliss to Erichsen on 1/11/05).
On February 4, 2005 the following letter was sent to Mr. Erichsen.
This letter is in response to your January 7, 2005 submittal to the Maryland Department of the Environment (the “Department”), concerning the St. Andrews Landfill (“landfill”). The submittal concerns the proposed landfill gas remediation plan .... at the landfill.
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.
The County proposed to install an active gas trench on May 12, 2004. The Department approved this plan on June 24, 2004. Subsequently, on October 26, 2004, the County requested a meeting to discuss current ... gas migration issues at the site. Representatives of the County met with the Department on November 15, 2004. The Department sent a letter to Mr. Richard Tarr on December 21, 2004 recommending that the active gas trench be installed as a passive trench initially, but be constructed so that the trench could be converted to an active trench quickly should subsequent monitoring results indicate that methane concentrations exceed regulatory limits.
The Department recognizes that there may be more than one option to control the migration of methane from the landfill. Three potential methods that we have been discussing are enhancing or upgrading the existing active gas collection system in the landfill, installing an active trench outside the landfill or installing a passive trench outside the landfill. There are advantages and disadvantages to each of these systems, as the Department has discussed with the County.
For example, an active , gas collection system within the landfill has the risk of introducing oxygen into the landfill, which increases the potential for a landfill fire. This system has the advantage of controlling or eliminating the migration of Volatile Organic Compounds (“VOCs”) and methane from the landfill. A passive trench outside the landfill may not be sufficient to reduce the concentration of methane at the property *721 boundary and may allow VOCs to escape from the landfill and partition into the ground water. On the other hand, an active collection trench outside the landfill may increase the flow of VOCs from the landfill, increasing the potential for ground water contamination.
In consideration of the above discussion, it 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.
Your letter indicates that the County is evaluating its obligations regarding site access by the public. 40 CFR 258.25 sets forth the federal requirements regarding control of public access to the site. This regulation indicates that the County must control public access as appropriate to protect human health and the environment.
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, 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.
Your letter indicates that the County will design, install, complete construction and initially operate a passive system by November 30, 2005. We recommend that you expedite your schedule.
In addition, the Department recommends that you do more than utilize and monitor the existing gas collection system on top of the landfill. We recommend that you evaluate the effectiveness of this system and determine if modifications to this system can address the migration of methane and VOCs from the landfill.
Def.’s Reply, Ex. 14 at 2-3 (Letter from Hynson to Erichsen of 2/4/05 at 1-2); Pl.’s Mem., Ex. 8 at 2-3 (Letter from Hynson to Erichsen of 2/4/05 at 1-2).
On March 22, 2005 Mr. Tarr sent the following e-mail to Mr. Erichsen.
I met with the Maryland Environmental Service (M’S) yesterday, Monday, March 21, 2005, to discuss the progress and review for the landfill gas recovery system design for St. Andrews. The M’S subcontracted the design work to KCE Engineering, whom was present for the meeting and subsequent discussions. Upon review of the drawings, it appears the recovery trench concept previously proposed and recommended by the M’S, and approved by the Maryland Department of the Environment (MDE) will prove difficult to implement in the field and possibly cost more than budgeted. The trench would extend to a depth of 40' in numerous locations which requires significant benching of the sides to prevent eollapse(s) and/or special trenching machinery to install same; again signifi *722 cant cost. Also, the excess soil material would exceed 4000 cubic yards and transportation and disposal of same would prove difficult, especially along the back side of the Cells 1, 2 and 4— not to mention the 4000 cubic yards of wash gravel to fill the trench.
The participants of the meeting discussed the feasibility of installing recovery wells instead of a trench at spacing sufficient enough to ensure gas recovery within the radius of influence of each well. The radius of influence is uncertain at this time and the M’S is planning to conduct onsite testing of the existing gas wells to determine same; once the radius is known, the appropriate number of wells will be proposed and located. The location of the well field is the same for recovery trench and the common header piping and flare locations are identical. Basically, the design concept is the same with the exception of the subsurface gas collection methodology. In addition, the wells may be easier to install and the amount of excess soil material will be minimal.
As you aware, the recovery trench was the system of choice from the onset, however based on review and the groundwater data and the fluctuations of same to during the dry seasons, the trench depth requires an additional depth of 5' — 10' than previously anticipated to ensure gas does not migrate under the trench during the dry seasons. The one disadvantage of the wells as compared to the trench is the necessity to ensure adequate coverage between each well, depth is not a problem. The trench concept provides a uniform and consistent recovery method which provides nearly complete capture of subsurface gases, as long as it is deep enough. The wells will provide similar recovery values as long the proper amount of wells are drilled. Based on the above comparison, it appears the constructability of the system now plays a significant factor for which system to install, not to mention the required funding levels.
The M’S is preparing a cost estimate for each system for comparison and the pros-cons of each. In addition, the drawings will be finalized with each system identified, with the exception of the # wells, so that this Department may review same with the MDE and acquire[ ] their feedback. I expect a submittal from the M’S some time next week.
I trust this information will prove useful and if you have any further questions, please don’t hesitate to inquire re: same.
Def.’s Reply, Ex. 16 at 2 (E-mail from Tarr to Erichsen of 3/22/05).
On May 19, 2005 Martha Hynson sent a letter to Mr. Erichsen. The first four paragraphs of the letter state,
This letter is in response to your April 11, 2005 submittal to the Maryland Department of the Environment (the “Department”) concerning the St. Andrews Landfill (the “landfill”). The submittal includes an update of the proposed landfill gas remediation plan for the site.
In your submittal, it states that the Maryland Environmental Service (MES) has begun evaluating the use of a series of gas extraction wells to be connected together by a shallow header, and installed along the path of the gas interceptor trench originally proposed on May 12, 2004. Preliminary review of the gas interceptor trench indicates that the trench might not be cost effective and an alternative design, such as the gas extraction wells, should be considered.
The Department has the same concerns about the active gas extraction wells that it had about an active gas extraction trench: the vacuum outside *723 the landfill may draw additional gases including methane and volatile organic compounds (“VOCs”) out of the landfill ----In addition, the wells may not be sufficient to reduce the concentration of methane at the property boundary and inside structures sufficiently to satisfy the requirements of Code of Federal Regulations 40 CFR Part 258.20, thus requiring additional remediation. However, the testing proposed by MES appears to be necessary to design the system that the County is now considering.
As we stated in our February 4, 2005 letter to you, 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. Your January 7, 2005 letter indicated that the County would design, install, complete construction, and initially operate a passive trench system by November 30, 2005. With the County now considering an alternative design, the Department is concerned this deadline will not be met. The County must inform the Department of which steps it plans to implement to protect human health from the migration of methane from the landfill. The Department requests that you take whatever steps are required to meet your target date to have a methane remediation system installed by November 30, 2005. Following installation, the remediation system will be evaluated to determine if it has effectively reduced methane concentrations to below the Lower Explosive Limit at the property boundary.
Def.’s Reply, Ex. 15 at 2-3 (Letter from Hynson to Erichsen of 5/19/05 at 1-2).
On June 2, 2005 Mr. Tarr sent the following letter to Mr. Dexter.
This Department is in receipt of the Maryland Department of the Environment’s (MDE) May 19, 2005 correspondence regarding [St. Andrew’s Landfill gas remediation design update]. We appreciate your review and comment of the April 5, 2005 proposal from the Maryland Environmental Service (MES) to convert the “trench” concept to a series of extraction wells. The “well” concept is intended to extract landfill gas from the subsurface and eliminate any further migration of landfill gas from the property. As you are aware, the installation of the “trench” concept will prove too difficult and may take a significant amount of time to construct. The “well” concept will allow proper placement of an extraction system down to the water table and based upon the testing proposed by the MES, direct the quantity of wells to ensure adequate extraction laterally.
As noted in the MDE correspondence, the Department has concerns regarding the potential to draw additional gases out of the landfill ... at the site. Please note, the proposed system is designed to operate as a passive system, with the potential to be converted to an active system if the landfill gases are not reduced to a level as required by 40 CFR Part 258, which is consistent with your prior correspondence dated December 21, 2004.
In addition, MDE’s February 4, 2005 correspondence indicates three (3) potential methods exist to control the migration of landfill gas: 1) installation of a passive system around the perimeter of the landfill, as discussed above; 2) installation of an active extraction system around the perimeter of the landfill, as discussed above, and 3) the enhancement of the existing extraction system atop the landfill(s). As per the MDE December 21, 200[4] correspondence, the Department recommended no changes to the gas extraction system atop the landfill(s) and monitor periodi *724 cally to ensure they are operating as designed. In addition, the Department has concerns that landfill fires may occur and the suppression of methanogenic bacteria due to excessive air entering the landfill may be caused due to too much vacuum being induced atop the landfill(s). Please note, recently a prominent landfill gas extraction system supplier/distributor was on site and installed vacuum/blowers on all the vents atop Cells 3 & 5 and replaced the existing vacuum/blowers atop Cells 1, 2 & 4 to ensure the extraction system(s) is working as intended.
On the other hand, the MDE’s correspondence dated February 4, 2005 recommends the County do more than utilize and monitor the existing gas collection system atop the landfill and “evaluate the effectiveness of this system and determine if modifications to this system can address the migration of methane and VOC’s from the landfill.” Also, the MDE’s correspondence dated May 19, 2005 recommends the County evaluate enhancing current extraction system atop the landfill(s) and perform a comparison of the costs and feasibility of same against the proposed “well” extraction system around the perimeter of the landfill. Upon conclusion of the above, conflicting recommendations are being provided to the County at this time, which may exasperate the design and construction schedule and the decision for which system is ultimately installed. The MDE previously stated in the February 4, 2005 correspondence “... it 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 previous direction and follow-up correspondences seem to conflict with one another; however, based upon preliminary discussions on June 1, 2005 with Mr. Andrew Grenzer regarding this issue ..., it was agreed a meeting is the most constructive means to fully comprehend the direction MDE is providing to the County in order to continue moving forward. We trust you are in agreement with the above and look forward to your positive response. In the Interim, if you should have any questions, please do not hesitate to contact this Department.
Id., Ex. 17 at 2-3 (Letter from Tarr to Dexter of 6/2/05 at 1-2).
On July 7, 2005 Mr. Tarr sent another letter to Mr. Dexter.
We appreciate the opportunity to meet with Maryland Department of the Environment (MDE) staff, Mr. Edward Carlson, Mr. Andrew Grenzer and Mr. Richard Glover on June 21, 2005 to discuss the above referenced. In addition to your staff, Mr. William Chicca 10 and Mr. Jason Baer from the Maryland Environmental Service (MES) and myself were in to provide a progress update for the St. Andrews Landfill; more specifically, to obtain further input and direction needed to complete the landfill gas remediation design and assessment of corrective measures.
It was mutually agreed that the proposed landfill gas recovery trench design previously proposed for the area(s) to the south and east of the property is not the preferred method of landfill gas extraction to eliminate the migration of landfill gas from the property, and that the current extraction system atop the landfill be evaluated and modified to further enhance landfill gas extraction utilizing a[] centralized vacuum system. *725 In addition, if the centralized system does not completely eliminate landfill gas migration in isolated areas, extraction wells will be installed and connected to the centralized system to enhance the overall extraction of landfill gas. The area(s) to the north of the property will not be modified and the recovery trench design will be installed as previously proposed. An evaluation and recommendation of the proposed alternatives will be provided as part of the final design submittal to support the final alternative(s) implemented for each area of the St. Andrews Landfill property.
On June 28, 2005, Mr. Baer and I met with staff from the Naval Air Station Patuxent River to tour the landfill gas extraction system utilized on a landfill similar in size to the St. Andrews Landfill. The extraction system ex-traets/flares the landfill gas utilizing a vacuum/blower system and timer to ensure extraction and combustion at a rate faster than it is being produced; however, minimizing the introduction of atmospheric air which could possibly initiate fires within the landfill. The Navy provided copies of the plans and specifications (attached) to the County and MES and will use same as a basis of design for the St. Andrews Landfill. As a result of the site visit, the County met with MES staff on June 30, 2005 to discuss the design modifications necessary for the St. Andrews Landfill and we are confident that the extraction system can be operational in accordance with the construction deadline previously submitted based on the following milestones:
August 31, 2005: Design complete— Submit to MDE for review and approval; initiate procurement process
September 30, 2005: MDE concurrence — Award contract/initiate construction
November 30, 2005: Construction complete
In the interim, if you should have any questions, please do not hesitate to contact this Department.
Id., Ex. 19 at 2 (Letter from Tarr to Dexter of 7/7/05).
Approximately 10 months later Brenda Keister, MDE, sent the following memorandum to Ed Carlson, MDE, stating in pertinent part,
Gas monitoring results for the 1st and 2nd quarter of 2005 showed methane levels exceeded the LEL at four wells (GW-1 thru GW-4) along the landfills northeast perimeter and well GW-8 located just north of the old unlined cells in March. These same 5 wells and GW-9 exceeded the LEL again in June.
St. Mary’s County is currently developing a remedial plan to prevent the migration of methane gas.
Pl.’s Mem., Ex. 16 at 2 (Mem. from Keister to Carlson of 5/16/06).
On June 15, 2006 Ed Carlson sent the following e-mail to Mr. Tarr.
Thanks for the update on the status of the remediation at the St. Andrew’s Landfill.
Your e-mail indicates MES will provide you the completed design drawings and technical specifications for the St. Andrew’s Landfill Gas Remediation System on or before June 30th. When will you submit these drawings to the Department? The Department will expedite the review of these drawings once they are received and plan on getting comments to you within a week or 10 days. If the Department is able to approve the drawings when they are submitted, when will construction begin and when will the system be functioning?
*726 What is the status of the development project on the properties near and adjacent to the landfill? Please update us on the status of the development on the nearby properties and plans to prevent potential risks caused by St. Andrew’s landfill to these properties and on site structures before the active gas system can be installed. The Department believes that aggressive gas monitoring of the St. Andrew’s landfill is needed to minimize the potential for risks caused by gas generation and migration at this site.
Id., Ex. 32 at 2-3 (E-mail from Carlson to Tarr of 6/15/06 at 1-2); Def.’s Reply, Ex. 36 at 2-3 (E-mail from Carlson to Tarr of 6/15/06 at 1-2).
The following day Mr. Tarr responded. The MES will be submitting the plans & specs no later than June 30 and the MES will be forwarding same directly to your Department for review. We plan to begin the solicitation process (no later than August 2006) as soon as we receive the package and allow at least ninety (90) days on the street for the potential bidders and then award same upon approval by your Department. If any changes must be made based on comments rec’d by your Department, we will also be requesting the bidder(s) to hold their pricing for thirty (30) to sixty (60) days to address, if any, changes to the plans. Once the solicitation is approved/awarded to the contractor, I would anticipate the project being operational no later than December 2006— the most complex component of the project is construction and installation of the flare unit.
The owner of the property is aware of the landfill gas issue and the County has attempted to acquire a right-of-entry agreement with same; to date the County has been unsuccessful. We recognize the importance of sampling and will continue to do so, especially after the remediation system is installed to evaluate the effectiveness. Development of the property which has been identified by the County and property owner as being impacted by the landfill gas remains undeveloped to date. Specifically, property development rights/agreements between the County and the developer were revised to allow the developer to “switch” commercial vs. residential rights on the parcel impacted by the landfill gas delaying development of the site until the remediation system has been installed and has addressed the landfill gas migration.
Pl.’s Mem., Ex. 32 at 2 (E-mail from Tarr to Carlson of 6/15/06); Def.’s Reply, Ex. 36 at 2 (E-mail from Tarr to Carlson of 6/15/06).
On January 22, 2007 Marcas filed a Complaint against the Board of County Commissioners of St. Mary’s County in the United States District Court for the District of Maryland. See Document No. 1. On March 15, 2007 Martha Hynson of MDE sent the following letter to Mr. Tarr of St. Mary’s County DPW & T.
This letter is in response to the draft Assessment of Corrective Measures for the St. Andrews Landfill (“ACM”) dated January 2007, which was submitted to the Maryland Department of the Environment (the “Department”) by St. Mary’s County (the “County”). The Department has reviewed the draft document and recommends the County revise the ACM subject to the following recommendations and comments.
The ACM must clearly define the area of the site that it addresses. The Department believes that the ACM should address Area B of the St. Andrews Landfill. * * *
*727 The ACM does not address trespassers to the site as potential receptors. Because the site is not fenced and security is limited, the possibility for trespass is high. There is evidence of trespassers near well MW-9 and GW-8. The road in this area provides easy access to trespassers. Other areas of the site are also accessible to trespassers. The ACM should evaluate trespassers as potential receptors and potential exposure routes. The County may take measures to prevent trespassers to the site.
* * :|:
The Department looks forward to working with the County in developing and implementing the appropriate corrective measure at the St. Andrews Landfill. The Department reserves the right to make additional recommendations and requirements to the ACM as necessary.
Id., Ex. 54 at 2, 4 (Letter from Hynson to Tarr of 8/15/07 at 1, 8); Pl.’s Mem., Ex. 9 at 2, 4 (Letter from Hynson to Tarr of 8/15/07 at 1, 3).
On March 30, 2007 Mr. Tarr sent an email to Mr. Dexter regarding MES’s proposal for landfill gas delineation at St. Andrew’s Landfill.
I’m inquiring as to the status of the review/comment for the above referenced which was provided to the MDE during our meeting on Feb. 23, 2007. The MES proposal as drafted outlined a series of ... gas wells both onsite and offsite relating to the St. Andrews property. Once the additional sample points are installed, monitoring will commence accordingly and the data generated will be used to evaluate the overall effectiveness of the landfill gas remediation system ....
As an update re: the landfill gas remediation system, the gas system for Area B, Cells 1, 2 & 4 was activated on March 8, 2007. We anticipate Cells 3 & 5 becoming effective the week of April 2, 2007 and Gas Collection Areas 1 & 2 during the month of April. Weekly sampling of the perimeter gas wells surrounding Area B, Cells 1-5 has been conducted and the results are promising. Historically Gas Wells 1 through 4 have revealed LEL levels in excess of 100%, as of today, Gas Wells 1 & 2 were 0% LEL, Gas Well 3 was above 100% LEL, though the % volume for CH4 seems to be declining and Gas Well 4 was 2% LEL. Gas Wells 5 & 6 were also 0% LEL.
Once the landfill gas readings are below the regulatory limit of 100% for the property line as identified in 40 CFR 258.23 and COMAR 26.04.07.21, what additional landfill gas measures must the County conduct other than maintain the landfill gas extraction system?
I look forward to the comments/suggestions the MDE may have re: the above referenced subject and if you have any questions, please don’t hesitate to call.
Pl.’s Mem., Ex. 36 at 2 (E-mail from Tarr to Dexter of 3/30/07).
Four months later Mr. Tarr sent another e-mail to Mr. Dexter.
As an update re: the landfill gas remediation system, the gas system for Area B, Cells 1, 2 & 4 was activated on March 8, 2007 and Cells 3 & 5 became effective the week of April 16, 2007. Sampling of the perimeter gas wells surrounding Area B, Cells 1-5 has been conducted weekly and the results (attached) are promising. Historically Gas Wells have revealed LEL levels in excess of 100% and wells 5 & 6-0%; as the data suggest, the gas levels have declined and are expected to be managed by the extraction system.
Since the beginning of June, Gas Wells 1 through 3 have been in compliance. Gas Well 4 seems to be manageable with the *728 extraction system, though a higher vacuum is necessary within the landfill nearest the well. It is important to note, the County issued a change order to the manufacturer of the extraction system to install a[n] electronically controlled variable flow device to adjust the vacuum of the flare, as opposed to the manually adjusted valve, in an attempt to compensate for atmospheric/barometric fluctuations. In addition, the device will allow the County to increase the vacuum within the landfill nearest GW4 and not effect the rest of the landfill; the goal is to eliminate the presence of gas in GW4 as we did with GW 1 through 3. The flare manufacturer has notified the County and they will be installing the device the week of July 30 or August 6, 2007.
As for Gas Collection Areas 1 & 2, the extraction wells for Area 1 are scheduled to be drilled the week of July 30 and operational shortly thereafter. The County and MES have decided to modify the extraction system for Area 2; revise the system to install extraction wells within the waste and plumb same to the flare system rather than extraction wells around the perimeter of the waste cells and manage the gas with solar powered flares. We anticipate this is the most aggressive approach to facilitate the extraction of gas from within the waste as the flare has capacity to handle the additional volume. The MES has discussed this w/your staff and they have given us verbal approval to move forward; MES is in the process of following up via written notification with your staff. MES is currently surveying the site and once completed, the well placement and piping will be designed and constructed shortly after Area 1 is complete.
I look forward to the comments/suggestions the MDE may have re: [St. Andrew’s Landfill gas extraction system update] and if you have any questions, please don’t hesitate to call.
Def.’s Reply, Ex. 56 at 2 (E-mail from Tarr to Dexter of 7/25/07).
On August 6, 2007 Marcas and the Board of County Commissioners for St. Mary’s County, Maryland executed a Right-of-Entry Agreement. On August 30, 2007 Marcas filed an Amended Complaint against the Board of County Commissioners of St. Mary’s County. See Document No. 21.
On September 5, 2007 Pamela D. Marks, and counsel for Marcas, sent the following letter to The Honorable Francis Jack Russell, President, St. Mary’s County Board of County Commissioners.
On March 29, 2007, Marcas provided notice pursuant to Section 7002(c) of the [Resource Conservation and Recovery Act (“RCRA”) ], 42 U.S.C. § 6972 (c), of its intent to amend its complaint for ongoing violations of the [RCRA] and regulations promulgated thereto in its legal action in the United States District Court for the District of Maryland against the Board of County Commissioners of St. Mary’s County (“the County”) for ongoing violations of the [RCRA], 42 U.S.C. § 6901 , et seq. and regulations promulgated pursuant thereto, at the St. Andrews Landfill (“SAL”) located at 44825 St. Andrews Church Road in California, Maryland. Pursuant to [RCRA] Section 7002(b), 42 U.S.C. § 6972 (b), this notice letter provides clarification of the notice provided in the March 29, 2007 letter.
The County continues to operate the SAL in violation of the County’s Refuse Disposal Permit, the [RCRA] and regulations promulgated pursuant thereto. In addition, the County’s storage, treatment, and transportation and/or disposal of solid wastes at the SAL may present an imminent and substantial endanger *729 ment to health or the environment. On information and belief, the County is allowing: (1) known carcinogens and other pollutants to discharge from the SAL 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 ; (2) methane to exceed its lower explosive limit at SAL’s property line; and (3) uncontrolled public access so as to expose the public to health and safety hazards at the SAL, in violation of 40 C.F.R. §§ 257.3-3 (a), 258.27, 257.3-8(a), 258.23, 258.25, and 257.3 — 8(d), and any other applicable regulations, restrictions, or requirements concerning landfill gas, leach[]ate, and public access control, and the County’s Refuse Disposal Permit. Pursuant to 40 C.F.R. § 258.1 (h), a landfill that 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, constitutes an open dump prohibited by Section 4005 of the [RCRA], 42 U.S.C. § 6945 . In addition, the County stores, treats, transports, and disposes of solid and hazardous wastes at the SAL in a manner which presents an imminent and substantial danger to health or the environment.
Marcas is a limited liability corporation registered under the laws of Maryland. It owns property adjacent to the SAL and its property and the surrounding environment are being impacted by the unlawful discharge of pollutants, ex-ceedances of the lower explosive limit of methane and uncontrolled public access that exposes the public to potential health and safety hazards.
If the County has reason to believe that the SAL is exempt from the requirements of the [RCRA], is in compliance with the [RCRA] and its Refuse Disposal Permit or otherwise has a defense liability, please advise us of the specific bases for its exemption, compliance or defense. Please direct all correspondence regarding this matter to my attention.
Pl.’s Mem., Ex. 37 at 2-3 (Letter from Marks, Esq. to The Honorable Russell of 9/5/07 at 1-2).
On July 25, 2008 Martha Hynson, MDE, sent the following letter to Mr. Erichsen, Director, St. Mary’s County DPW & T.
This letter is in response to the request for modification to the design of the gas collection system (also known as Gas Collection Area 2) for Area A at St. Andrew’s Landfill located in St. Mary’s County. The Maryland Department of the Environment (the “Department”) has reviewed the revised design drawings for the gas collection system and hereby approves the plan.
Please notify the Department in writing at least five working days prior to installation of the gas collection system. Upon completion of the project, the County must submit as-built drawings of the system to the Department.
Def.’s Reply, Ex. 22 at 2 (Letter from Hynson to Erichsen of 7/25/08).
On October 24, 2008 Marcas filed a Second Amended Complaint. See Document No. 47.
Each and every month St. Mary’s County collects sampling data to determine whether methane gas above the LEL of 5% continues to be present at the property boundary between St. Andrew’s Landfill and Marcas’ property and/or on Marcas’ property. As recent as October 2010 methane gas above the LEL of 5% was detected in the subsurface soils on Marcas’ property as well as at the property boundary between Marcas’ property and St. Andrew’s Landfill. PL’s Suppl. Mem. Supp. Mot. Partial Summ. J., Ex. 2 at 35-36.
*730
JURISDICTION AND VENUE
This Court has original jurisdiction pursuant to 28 U.S.C. § 1331 as to Counts I (Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. §§ 9601 , et seq.), VI ( [Resource Conservation and Recovery Act], 42 U.S.C. § 6972 (a)(1)(A)), and VII ( [Resource Conservation and Recovery Act], 42 U.S.C. § 6972 (a)(1)(B)). The remaining four counts — II (Trespass), III (Private Nuisance), IV (Interference with Business or Economic Relationship) and V (Strict Liability for Abnormally Dangerous or Ultrahazardous Activity) — are claims under the laws of the State of Maryland. Pursuant to 28 U.S.C. § 1367 (a), “district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” The Court finds the four state claims are in fact so closely related to the three counts under federal law that the four state claims form part of the same controversy.
Venue is proper in this judicial district based on Defendant’s residence in this judicial district, 28 U.S.C. § 1391 (b)(1). Venue is also proper in this judicial district because “a substantial part of the events or omissions giving rise to the claim occurred”, 28 U.S.C. § 1391 (b)(2), in Maryland. Additionally, pursuant to 42 U.S.C. § 9613 (b), “[v]enue shall lie in any district in which the release or damages occurred or in which the defendant resides, may be found, or has his principal office.”
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(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (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 , 106 S.Ct. 2505 ; 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(c); 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 , 82 S.Ct. 993 , 8 L.Ed.2d 176 (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, 106 S.Ct. 2548 .
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 , 106 S.Ct. 2505 . 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 Theatres, Inc., 42 F.R.D. 627, 632 *731 (E.D.N.C.1966), aff'd, 388 F.2d 987 (4th Cir.1967), cert. denied, 390 U.S. 959 , 88 S.Ct. 1039 , 19 L.Ed.2d 1153 (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 , 106 S.Ct. 2505 (citations omitted).
When faced with cross-motions for summary judgment, the Court must consider “each 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 standards 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) (“The court is not permitted to resolve genuine issues of material fact on a motion for summary judgment — even where ... both parties have filed cross motions for summary judgment.”) (emphasis omitted), cert. denied, 469 U.S. 1215 , 105 S.Ct. 1191 , 84 L.Ed.2d 337 (1985)).
DISCUSSION
A. The County’s Motion for Partial Summary Judgment
1. Whether Count VI, a Claim under 12 U.S.C. § 6972 (a)(1)(A), Must Be Dismissed as a Matter of Law?
The County argues that Count VI must be dismissed as a matter of law because Maryland is an “authorized state” with regard to hazardous waste under the Resource Conservation and Recovery Act (“RCRA”). As an authorized state Maryland operates its hazardous waste program in lieu of the Federal Program. The Maryland hazardous waste program thus preempts the Federal Program. Since the Federal hazardous waste program is superseded by the Maryland hazardous waste program, a citizen suit under RCRA cannot be used to bring a claim regarding alleged hazardous waste governed by the Maryland hazardous waste program.
In its Opposition, while acknowledging Maryland’s hazardous waste program supersedes the Federal hazardous waste program, Marcas asserts its claim is brought under the Municipal Solid Waste Landfill (“MSWLF”) program. Although the Environmental Protection Agency (“EPA”) determined Maryland’s municipal solid waste landfill program was partially adequate, the federal minimum criteria for MSWLF nonetheless apply and therefore Marcas is entitled to enforce this Federal program through a citizen suit pursuant to 42 U.S.C. § 6972 (a)(1)(A). Furthermore Marcas contends the County is confusing the management of the hazardous waste program under Subtitle C of RCRA and the management of municipal solid waste landfills under Subtitle D of RCRA.
By way of background, under RCRA, a State seeking to administer and enforce a hazardous waste program may develop such a program, provide notice to the public and an opportunity for a hearing and then submit it to the Administrator of the EPA for approval. 42 U.S.C. § 6926 (b). The State of Maryland in fact submitted such a proposal to the EPA. On October 26, 1984 the EPA issued a notice in the Federal Register regarding its intention to tentatively grant Final Authorization for Maryland’s hazardous waste program to operate in lieu of the Federal program. Hazardous Waste Management Program, 49 Fed. Reg. 43,072 (Oct. 26,1984).
On January 25, 1985 the EPA issued a notice of final determination on Maryland’s application for final authorization. Hazardous Waste Management Program, 50 Fed. Reg. 3,511 (Jan. 25, 1985). “Mary *732 land is granted final authorization to operate its hazardous waste program subject to the Hazar

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8693397. Public record. Not legal advice.