Petition for Writ of Certiorari — Are Acquisitions, LLC v. Hanna (No. 07-890)

reme Co S.

Supreme Cat US

mal No. CD

07-890 DEC 20 2007

In The GFY7CE OF THE CLERK

Supreme Court of the Untted States

ARE ACQUISITIONS, LLC,

Petitioner,

v.

MICHAEL G. HANNA, JR., PETER NARDIN,

JONATHAN SWINDLE, RICHARD COX, CHARLES

LINDSAY, CHARLES DUBROFF, and DAVID FOX,

Respondents.

°

On Petition For A Writ Of Certiorari

To The Court Of Appeals Of Maryland

°

PETITION FOR WRIT OF CERTIORARI

>

CHARLES S. HIRSCH ROBERT B. MCKINSTRY, JR.

BALLARD SPAHR ANDREWS & Counsel of Record

INGERSOLL, LLP DAVID G. MANDELBAUM

300 East Lombard Street, MARLENE S. GOMEZ

18th Floor BALLARD SPAHR ANDREWS &

Baltimore, MD 21202 INGERSOLL, LLP

(410) 528-5600 1735 Market Street,

51st Floor

Philadelphia, PA 19103

(215) 665-8500

Attorneys for Petitioner

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether the cradle to grave system for managing

hazardous waste under the federal Resource Conser-

vation and Recovery Act (“RCRA”), 42 U.S.C. §§ 6901-

6992k, creates a duty for a tenant to manage hazard-

ous wastes that it has generated at its leasehold

safely and in compliance with the law, including the

duty not to abandon hazardous wastes in a leased

building at the conclusion of a leasehold without

complying with the requirements of RCRA.

il

PARTIES TO THE PROCEEDING

ARE Acquisitions, LLC, is Petitioner in this

Court and was the respondent and cross-petitioner

before the Court of Appeals of Maryland, the appel-

lant in the Court of Special Appeals of Maryland and

plaintiff in the Circuit Court for Montgomery County,

Maryland. Michael G. Hanna, Jr., Peter Nardin,

Jonathan Swindle, Richard Cox, Charles Lindsay,

Charles Dubroff and David Fox are Respondents in

this Court and were petitioners in the Court of Ap-

peals of Maryland, the appellee in the Court of Spe-

cial Appeals of Maryland and defendants in the

Maryland Circuit Court.

CORPORATE DISCLOSURE STATEMENT

Alexandria Real Estate Equities, Inc., a publicly

traded real estate investment trust, has a 1% manag-

ing member interest (through a wholly owned sub-

sidiary) and a 99% non-managing member interest in

Petitioner.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED.............002:scsssesssescosseee i

PARTIES TO THE PROCEEDING ..................... ii

CORPORATE DISCLOSURE STATEMENT....... li

TABLE OF AUTHORITIES ..................cccceseseeeeees Vv

ey IO catcchianecekscctcrcedsianahbscnnntxstibanten 1

i hii nitinnakieiin sdctutccirdinntinnitilensineninunets 2

RELEVANT PROVISIONS INVOLVED.............. 2

INS pated cilnctaatictodaiatinininsantatdenndiacuioanies 3

A. Statutory Backgroun .........................02000 4

B. Factual BOCRQrouine ..........0.cc0cccecessescesssesss 6

C. Procedural Background ..........................+ 10

REASONS FOR GRANTING THE PETITION ..... 13

I. THE -MARYLAND COURTS HAVE

DECIDED AN IMPORTANT ISSUE OF

FEDERAL HAZARDOUS WASTE LAW

INCONSISTENTLY WITH THE DECI-

SIONS OF SEVERAL COURTS OF AP-

PRIN s6kidhantekaussiiicnachouinntaitidebmuaienbentastoninen 13

Il. THE CURRENT STATE OF THE LAW

IN MARYLAND THREATENS ADVERSE

CONSEQUENCES AFFECTING PUB-

LIC HEALTH AND SAFETY..................... 20

Cea NIT sebscienhcsieminhacceavniaaietnatummeandguniens 23

1V

TABLE OF CONTENTS -— Continued

Page

APPENDIX

ARE Acquisitions, LLC v. Hanna, No. 1502,

Sept. Term, 2004 (Md. Ct. Spec. App. Aug.

ig I Sac said. hiiosoach pllgmasita ha aioneinnatbtindichbiieb panda App. 1

Order, ARE Acquisitions, LLC v. Hanna, No.

236630 (Md. Cir. Ct. Mont. Cty. July 22,

TE sactisitiab nab icslacigiilaib enka sinuaistnidanstideedndctedaanaihcen App. 45

Order, Hanna v. ARE Acquisitions, LLC, No.

400, Sept. Term, 2006 (Md. App. Ct. Dec. 6,

Es cinshsias sak iiedetadaanbaoungsbackchakiesintteasintionen App. 49

Order, Hanna v. ARE Acquisitions, LLC, No.

400, Sept. Term, 2006 (Md. App. Ct. Dec. 6,

I ecadiiccinicchtanceontcbind ail cdiijiciasiideansnnsdsoncens App. 51

Order, Hanna v. ARE Acquisitions, LLC, No.

400, Sept. Term, 2006 (Md. App. Ct. Sept. 27,

BE aa aiisasacindasstaencelbassachanniceucanedinisennanitedblaaens App. 53

ee ete ee IE beiacteasatctcdanitascnemnaesrastaasrannonc outs App. 54

BZ UEC, § GRU N SAS) 2 .ccccnncncccsesscssecrsrrosens App. 56

42 USC. § GOOG), (15), (BT) ........0..cccrcccesseese0e App. 57

I i irlat cela nowlicsacknansinesdsxncaselsileoniens App. 59

42 U.S.C. § 6928(d)-(e)...................... OER A! App. 61

ese ON ihe os iv nieasdcsceccknpsianteenscssnciceeamanenecll App. 65

oi iaeicicsincinnccocdnepahinnsanntoamabans App. 67

le ie OE erica scenccnstnnervanantstnatiiokens App. 69

40 C.FR. § 261.4(a)(4) ..ceccscecccecccesccececeeesecsesecene App. 70

Oe es Oe Es sn eiiccistnnninsenisshicsnntenwcemnniens App.

Vv

TABLE OF AUTHORITIES

Page

CASES

City of Chicago v. Environmental Defense

PE, Ak Fee I hin bas cincscaseiasestacthantdantndhansarens 4

Meghrig v. KFC Western, Inc., 516 U.S. 479

RRR nara RE Sr RE Pree Oona RU ahr sient 6, 19

Nurad, Inc. v. Hooper & Sons Co., 966 F.2d 837

A Es’ I arishikiscsnacecsxicinsnsnakedaidecestepinas 13, 14, 18

Owen Electric Steel Co. v. Browner, 37 F.3d 146

CEE PIO his a cisinscssstnesintnthiecitadapecnicseanatiocioens 13, 15, 18

United States v. Dee, 912 F.2d 741 (4th Cir.

1990), cert..denied, 499 U.S. 919 (1991)................. 18

United States v. Hoflin, 880 F.2d 1033 (9th Cir.

i caiiidiiintinickticireuceniiataodeaicaanalecuaeaia 21, 22

United States v. Northeastern Pharmaceutical

and Chemical Co., Inc., 810 F.2d 726 (8th

As Se cick dessdinchidicatesesarelinvsntbinsas ciekerebamee tables 19

United States v. Sims Brothers Construction,

Inc., 277 F.3d 734 (5th Cir. 2001) ........20.... 13, 14, 18

United States v. Union Corp., 259 F. Supp. 2d

Be es Bk SD visite vnctcrsnasivatinenandceaaicanetaaares 19

United States v. Wagner, No. 92-CR-71, 1992

U.S.Dist. LEXIS 22218 (E.D. Wis. Dec. 16,

1992), aff’d, 29 F.3d 264 (7th Cir. 1994)....... ane 14

United States v. Wagner, 29 F.3d 264 (7th Cir.

BE ieivctdtconcitinininiinbeaaee 13, 14, 18

vi

TABLE OF AUTHORITIES — Continued

Page

STATUTES

I all cea shinee ciel 1

I i a a 1

42 U.S.C. §§ 2014-2114 (Atomic Energy Act of

SPITS caddiliciidiisibisaleineacnahedvnddnuiuapennnanacainestindiauesiaaed 16

ME UF. Be OEE on ccsssncendacnescccecssoesccnenes 1, 2, 3,4

IIE al cosas sicnnbncheensiedisanbeenbscckunsmmnaieiail 21

ascii son on censiniinnannsanneneieliaeen 4, 22

i a nis cinco nisanipneninnedsioensliail 5, 14,16

I aca a a 5, 16

I coo sicckcsntensacsdislinhosantadibomondineeaieeneane 4

I anda isisnsoshinaceanaconeaananeubeuianiell 5, 6,9

a ac anc din scien asciebeisiidehanmusnaeneleueueel 5

NG St ITED ecnkinninckstnsnisatnciscendisnssnsubeadsubeniied 6

Ie i nas isa sa naan pidsn ainnianieseumbennnellane 6

FEDERAL REGULATIONS

gE eR Se eS ee 5, 16

Sy en ERT PRI 2S” 16

I i nce ahaineathnleciasintbimatcon 5, 16, 17

I BEE TED ii cdeicniisnivecinnesnenbsetigadeanann dieesiasacnenaaiiomaes 16

vii

TABLE OF AUTHORITIES — Continued

Page

STATE REGULATIONS

I Nc i 16

Se a CII sin ccnccscicschsnhadsiisiganicnsnsadunaadonnadmatios 16

RIN © SL ROI ncscnacccdsicansvcscinsnsednasesannsoaens 17

CouRT RULES

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FE EY Ge csviceiinnidssnivsienseencbeanedabensiesmduarapaianan 2

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner respectfully petitions for a writ of

certiorari to review the judgment of the Court of

Appeals of Maryland denying a petition for a writ of

certiorari to review the action of the Court of Special

Appeals of Maryland dismissing Petitioner’s claim of

negligence and denying Petitioner’s motion for recon-

sideration of that act after reversing the Court of

Special Appeals and dismissing all of Petitioner's

remaining claims against Respondents.

¢

OPINIONS BELOW

The following orders and opinions are reproduced

in the Appendix hereto:

The August 24, 2006 unreported opinion of the

Court of Special Appeals of Maryland affirming

dismissal of Petitioner’s negligence claim (App. 1-44);

The July 22, 2004 order of the Circuit Court of

Maryland for Montgomery County dismissing Peti-

tioner’s negligence claim (App. 45-48);

The orders of the Court of Appeals of Maryland

denying Petitioner's conditional cross-petition for writ

of certiorari (App. 49-52) and denying Petitioner’s

motion for reconsideration (App. 53).

¢

2

JURISDICTION

The Court of Appeals of Maryland denied Peti-

tioner’s conditional cross-petition for writ of certiorari

on December 6, 2006. Pursuant to Md. Rule 8-605,

which permits reconsideration only of “a decision by

the Court that disposes of the appeal,” Petitioner was

required to wait until the Court of Appeals issued its

August 22, 2007 opinion before requesting reconsid-

eration. Petitioner timely filed a motion for reconsid-

eration on September 20, 2007, which was denied by

the Court of Appeals on September 27, 2007.

This petition for writ of certiorari is filed within

90 days of the date of the Court of Appeals’ denial of

the Petitioner’s motion for reconsideration pursuant

to 28 U.S.C. §2101(c) and Sup. Cr. R. 13.3.. This

Court has jurisdiction to review on a writ of certiorari

the Court of Appeals of Maryland’s judgment pursu-

ant to 28 U.S.C. § 1254(1).

¢

RELEVANT PROVISIONS INVOLVED

The relevant statutory provisions of the Resource

Conservation and Recovery Act, 42 U.S.C. §§ 6901-

6992k, and the regulations promulgated thereunder,

are set forth in the Appendix hereto at App. 54-77.

°

3

STATEMENT

Petitioner, ARE Acquisitions LLC (“ARE” or

“Petitioner”) seeks review of the decisions of the

Court of Appeals of Maryland denying (1) ARE’s

cross-petition for certiorari from a decision of the

Court of Special Appeals dismissing ARE’s claim for

negligence against Respondents on the basis of a

determination that a tenant owed no duty to its

landlord to handle its hazardous and radioactive

wastes safely and in accordance with the law, and (2)

ARE’s petition for reconsideration of that denial after

the Court of Appeals disposed of Petitioners’ remain-

ing claims against Respondents. The opinions below,

on their face, read as if this were a routine decision

on a matter of state negligence law in a case where a

disgruntled landlord is attempting to avoid the con-

sequence of a former tenant’s bankruptcy. However,

the decision that a tenant can abandon materials

constituting hazardous and radioactive waste and

owes no legal duty to manage those wastes in accor-

dance with the requirements of the federal Resource

Conservation and Recovery Act (“RCRA”), 42 U.S.C.

§§ 6901-6992k, stands in stark conflict with decisions

of several courts of appeals that have affirmed crimi-

nal convictions and civil liability premised on the

opposite proposition. Parties who generate hazardous

waste have a clear obligation to comply with the

cradle-to-grave program that Congress created in

RCRA for the handling of hazardous waste. The fact

that, months after abandonment, a company files a

petition in bankruptcy does not and should not excuse

4

either the company or its officers from their obliga-

tions to handle the waste in accordance with the law.

Given the importance attached by Congress to the

proper handling of hazardous waste, see 42 U.S.C.

§ 6902(b), this Court should grant the petition for

certiorari, because the Maryland Court of Appeals

“has decided an important federal question in a way

that conflicts with the decision .. . of a United States

court of appeals.” Sup. CT. R. 10(b).

A. Statutory Background

The federal Resource Conservation and Recovery

Act, 42 U.S.C. §§ 6901-6992k, is a comprehensive

environmental statute that governs the treatment,

storage and disposal of solid and hazardous waste.

See City of Chicago v. Envtl. Def. Fund, 511 U.S. 328,

331-332 (1994). RCRA’s primary purpose is to reduce

the generation of hazardous waste and to ensure the

proper treatment, storage, and disposal of that waste

which is nonetheless generated, “so as to minimize

the present and future threat to human health and

the environment.” 42 U.S.C. § 6902(b). RCRA imposes

significant obligations on generators of hazardous

waste in their handling and disposal of such waste

and provides for stringent penalties, including crimi-

nal penalties, for the violation of its provisions. 42

U.S.C. § 6928(d), (e). RCRA imposes strict liability

upon “any person” who is contributing or who has

contributed to the disposal of hazardous substances

that may present an imminent and substantial

endangerment to health or the environment. 42

5

U.S.C. § 6973(a). As defined by statute, the term

“person” includes both individuals and corporations

and does not exclude corporate officers and employ-

ees. 42 U.S.C. § 6903(15).

RCRA defines “solid waste” as “any garbage,

refuse, sludge from a waste treatment plant, water

supply treatment plant, or air pollution control

facility and other discarded material... .” 42 U.S.C.

§ 6903(27). The regulations promulgated under RCRA

define “discarded material” as any material which is

abandoned by being disposed of, burned or inciner-

ated or accumulated, stored or treated before or in

lieu of being abandoned by being disposed of, burned,

or incinerated. 40 C.F.R. § 261.2(a), (b). Under RCRA,

“hazardous waste” is a subset of “solid waste” that,

for enumerated reasons, creates public health and

environmental dangers. 42 U.S.C. § 6903(5). Hazard-

ous waste must be labeled, contained, and properly

stored while awaiting transportation to a permitted

treatment, storage, or disposal facility. 42 U.S.C.

§ 6922(a); 40 C.F.R. § 262.34.

RCRA provides for certain private causes of

action by citizens against violators of RCRA. 42

U.S.C. § 6972. Section 7002(a)(1)(B) of RCRA author-

izes citizens to bring a private cause of action against

any person who causes or contributes to conditions

which “may present an imminent and substantial

endangerment to health or the environment” due to the

disposal of a RCRA solid or hazardous waste. 42 U.S.C.

§ 6972(aX 1B). In addition, Section 7002(axX1\A) of

RCRA authorizes citizens to bring a suit for injunctive

6

relief against persons who are “alleged to be in viola-

tion” of a permit, standard or the requirements under

RCRA. 42 U.S.C. § 6972(a)(1)(A). RCRA does not

provide its own private federal right of action for

damages, Meghrig v. KFC Western, Inc., 516 U.S. 479

(1996); damages must be sought under state law or

the Comprehensive Environmental Response, Com-

pensation and Liability Act (“CERCLA”), 42 U.S.C.

§§ 9601-9675. See 42 U.S.C. § 9613(f)(1) (providing

that “any person may seek contribution from any

other person who is liable or potentially liable” for

cleanup costs under CERCLA).

B. Factual Background

Intracel Corporation (“Intracel”) is a biotechnol-

ogy company that leased laboratory and office space

from Petitioner ARE in Rockville, Maryland (the

“Premises”) until the end of April 2001. Intracel’s

operations at the Premises involved the use of haz-

ardous materials, including biological agents, radio-

active materials and various chemicals. Intracel was

regulated as a generator of hazardous waste under

RCRA and, as such, was permitted to store hazardous

waste at the Premises for limited periods of time so

long as it complied with regulations regarding the

proper handling and storage of the waste. Intracel

also had a license conditionally authorizing its use of

radioactive materials. After ARE terminated In-

tracel’s lease for failure to pay rent, Intracel moved

out and left huge amounts of material in ARE’s

building, including tons of low-level radioactive

7

waste, tons of chemically hazardous waste, tons of

biomedical waste, and enough trash to fill seventeen

dumpsters. This material was not appropriately

labeled, segregated, or contained in compliance with

law. Despite repeated efforts to get Intracel to return

to clean up the property in May and June 2001,

Intracel refused, requiring ARE — the landowner — to

incur enormous costs over many months to identify

and to separate the materials left on-site, to dispose

of them properly, and to decontaminate the property.

In addition, ARE suffered significant damages be-

cause the property was untenantable into 2002, by

which point market conditions had changed materi-

ally to ARE’s detriment.

Respondents Hanna, Nardin, Swindle, and Cox

were Intracel’s operating management, specifically its

chief executive officer, chief operating officer, chief

financial officer, and general counsel, while Respon-

dents Lindsay, Dubroff, and Fox were Intracel’s

directors (collectively “Respondents”). They controlled

Intracel’s primary funding source, supervised In-

tracel’s activities on a day-to-day or week-to-week

basis and were heavily involved in key operating

decisions such as those related to Intracel’s move-out.

Respondents knew that Intracel used chemicals,

radiation, and biological materials, and that leaving

the Premises entailed moving or disposing of tons of

material, much subject to special government regula-

tion. Cox had experience practicing environmental

law. Each of the defendants other than Fox had been

present at the Premises. Hanna, Nardin, Swindle,

8

and Cox worked there. Lindsay and Dubroff had

visited. These seven were the individuals who decided

to leave materials in ARE’s buildings.

During the last week of April 2001, Intracel

began the process of moving its operation to another

location. By April 30, Intracel had vacated the Prem-

ises but had failed to remove huge quantities of its

materials. Intracel abandoned a variety of materials

and equipment on the Premises including, but not

limited to, laboratory and scientific equipment, two

irradiators,' chemicals, biological materials, radioac-

tive materials, papers, and furniture.

ARE called its environmental consultant, Envi-

ron Corporation, upon finding the Premises in disar-

ray on April 30, 2001. Environ photographed the

condition in which defendants left the Premises.

There is no dispute that unlabelled chemicals were

left throughout the Premises. There is no dispute that

some materials were spilled and left. There is no

dispute that radioactivity was found in areas outside

the rooms licensed for use of radioactive materials,

raising the specter that hazardous materials were

located indiscriminately throughout the building.

Because ARE did not know the identities of all the

’ Irradiators are relatively large pieces of equipment used

to give a biological specimen a precisely known dose of radiation.

They contain within them radioactive material to provide a

source of radiation. Their use is permitted and controlled by

government regulation.

9

materials, and because some were obviously chemi-

cally hazardous, biohazardous, and radioactive, the

condition of the building posed a risk to ARE’s em-

ployees, other tenants, any new tenant, and the

general public. Neither ARE nor its experts have ever

heard of a departing health sciences tenant leaving

space in as bad a condition as defendants left the

Intracel space.

For months, ARE attempted unsuccessfully to

induce Respondents to return to the Premises to

remove the abandoned materials from the Premises.

By July 2001, ARE determined that it needed to take

action both to mitigate its own damages and to mini-

mize the risk to the public health and the environ-

ment. ARE could have brought suit against

Respondents immediately after they discovered Respon-

dents’ violations of RCRA to force Respondents to fund a

clean-up of the Premises. See 42 U.S.C. § 6972(a1)A)

and (B). Given the danger posed by conditions at the

premises which would continue to pose a threat to ARE’s

other tenants and anyone else in the building during

the pendency of a lawsuit, ARE opted to clean up the

Premises itself, although ARE had no hand in creat-

ing the hazardous conditions at the Premises. ARE

therefore engaged its own contractor to clean up

Respondents’ mess. The clean-up took several months

and cost more than $500,000. In addition, ARE in-

curred substantial legal expenses and suffered dam-

ages in the form of lost rent during the period of time

the Premises was unavailable to be leased. In Sep-

tember 2001, after months of operations in a new

10

Frederick, Maryland, facility and months after it had

abandoned the hazardous wastes, Intracel filed a

petition in bankruptcy.

Respondents did not abandon hazardous waste,

radioactive materials and other hazardous materials

at ARE’s property due to a lack of funds. ARE prop-

erly pleaded, based upon an investigation into the

evidence, that Intracel had plenty of money to pay for

the clean-up, but instead used the money to pay for

such things as a security deposit and rent for a new

location in Frederick, payroll, raises for certain

employees, and $600 per month for Hanna’s luxury

car lease. Intracel continued to receive hundreds of

thousands of dollars from Intracel Acquisitions Hold-

ing Company (“IAHC”), a corporate entity created to

fund Intracel’s operations, in the months prior to and

after Intracel vacated and abandoned materials at

the Premises. David Carlisle, Intracel’s former con-

troller, testified that he prepared a chart listing all of

the money Intracel received from IAHC through

August 2001. Intracel received more than $730,000

from IAHC in the month it vacated the Premises and

$1.2 million from IAHC in the five months after

Intracel vacated. Respondents simply chose not to use

the available funds to remove their waste.

C. Procedural Background

In September 2002, ARE brought suit in the

Circuit Court for Montgomery County, Maryland,

against Respondents, the individuals who oversaw

11

and directed the abandonment of materials on ARE’s

property. On July 27, 2004, on a motion to dismiss,

the circuit court decided that ARE could not state a

claim for negligence, ruling that a tenant owed no

duty to its landlord to handle or to discard hazardous

wastes, radioactive materials and other hazardous

materials safely and in compliance with law. At the

same time, the circuit court decided that ARE could

not state a claim for punitive damages arising from

intentional, unsafe abandonment of hazardous,

biohazardous, and radioactive materials. On Novem-

ber 4, 2004, the circuit court granted summary judg-

ment against ARE on the remaining counts of the

Second Amended Complaint, holding that abandoning

hazardous materials on someone else’s property in

violation of law did not constitute either a trespass or

the tort of waste. On November 5, 2004, ARE ap-

pealed. In an unreported decision dated August 24,

2006, the Court of Special Appeals of Maryland

reversed the circuit court’s decision with respect to

trespass, but affirmed the circuit court’s dismissal of

all other counts, including negligence. (App. 1-44.)

The Court of Special Appeals affirmed the dis-

missal because it found that Respondents did not

violate any statute that was intended to protect

against the type of harm ARE suffered at the hands

of Respondents. (App. 18.) The Court of Special

Appeals reasoned that Respondents owed no common

law or regulatory duty to leave waste behind in a safe

condition. (App. 17-21.) Additionally, the Court of

Special Appeals held that ARE had not properly

12

pleaded a breach by Respondents of any duty they

owed under RCRA or Maryland’s parallel regulations

to segregate, to package, or to label hazardous

wastes, radioactive materials and other hazardous

materials correctly because those materials were not

offered for transportation; they were abandoned in

place. (App. 20.)

By order dated December 6, 2006, the Court of

Appeals of Maryland granted Respondents’ petition

for writ of certiorari to consider whether Respondents’

abandonment of hazardous materials on ARE’s prop-

erty constituted trespass. (App. 49-52.) On the same

day, the Court of Appeals of Maryland denied ARE’s

conditional cross-petition to consider whether the

Respondents’ conduct also constituted negligence.

(App. 49-50.) In its opinion dated August 22, 2007,

the Court of Appeals ruled that Respondents’ conduct

could not constitute trespass. The Court of Appeals

did not address the merits of the negligence claim

because it had denied ARE’s conditional cross-petition

for certiorari with respect to the negligence count. On

September 20, 2007, Petitioner timely filed a motion

for reconsideration of the denial of the negligence

claim founded on the duties created by RCRA, and

that motion was denied by the Court of Appeals of

Maryland on September 27, 2007. (App. 53.)

6

13

REASONS FOR GRANTING THE PETITION

I. THE MARYLAND COURTS HAVE DECIDED

AN IMPORTANT ISSUE OF FEDERAL HAZ-

ARDOUS WASTE LAW INCONSISTENTLY

WITH THE DECISIONS OF SEVERAL

COURTS OF APPEALS

In contrast to the Maryland courts’ findings of no

duty, at least two courts of appeals have upheld crimi-

nal convictions premised upon individuals, including

owners of a company, abandoning hazardous materials

that became waste, United States v. Sims Brothers

Construction, Inc., 277 F.3d 734 (5th Cir. 2001);

United States v. Wagner, 29 F.3d 264 (7th Cir. 1994); a

third has upheld an action by the Environmental

Protection Agency (“EPA”) concluding that abandoned

slag was a solid waste regulated under RCRA, Owen

Electric Steel Co. v. Browner, 37 F.3d 146 (4th Cir.

1994); and a fourth held that closure of a plant with

stored useful solvents constituted “disposal,” Nurad,

Inc. v. Hooper & Sons Co., 966 F.2d 837 (4th Cir.

1992).

In United States v. Sims Brothers Construction,

Inc., the Fifth Circuit Court of Appeals affirmed the

district court’s acceptance of guilty pleas for viola-

tions of RCRA for illegal storage of hazardous waste.

The defendants had left canisters of methyl bromide

in an open area near a work site for three weeks until

they were stolen. Jd. at 738. Eventually someone died

from methyl bromide poisoning. The same could have

occurred here were it not for ARE’s responsible ac-

tions. In Sims Brothers, the defendants, showing

14

more responsibility than the Respondents in this

case, had, at least, intended to have someone remove

the canisters from the site, but the canisters were

never removed. Nevertheless, the Court of Appeals for

the Fifth Circuit held that there was no other conclu-

sion but that the canisters were abandoned or dis-

carded and were therefore “solid waste” for purposes

of RCRA. Id. at 742.

Similarly, in United States v. Wagner, the Court

of Appeals for the Seventh Circuit affirmed convic-

tions for unlawful storage and disposal of hazardous

waste in violation of RCRA. Defendants owned a

photo-etching business that used ferric chloride in the

photo-etching process. The defendants did not have a

permit for storage or disposal of hazardous waste.

The convictions were based on the defendants’ illegal

storage of spent ferric chloride in and around the

facility, and their subsequent disposal of similar

wastes by abandoning the business premises when

the owners moved the business operation to Florida.

See U.S. v. Wagner, No. 92-CR-71, 1992 U.S. Dist.

LEXIS 22218, *3 (E.D. Wis. Dec. 16, 1992), aff’d, 29

F.3d 264 (7th Cir. 1994).

The Court of Appeals for the Fourth Circuit in

Nurad, Inc. v. Hooper & Sons Co., similarly held that

abandoning hazardous materials constituted “dis-

posal” for purposes of RCRA. Although this is actually

a CERCLA case, the court notes that Congress ex-

pressly provided that the term “disposal” under

CERCLA “shall have the meaning provided in section

1004” of RCRA (42 U.S.C. 6903(3)). Nurad, 966 F.2d

15

at 845. The court found that defendants disposed of

hazardous substances at the site by depositing them

in underground storage tanks and abandoning them

upon closing the plant. The court reasoned that even

if it were to accept the defendants’ argument that the

storage of useful mineral spirits for active use as a

raw material cannot constitute disposal because the

spirits were not “waste,” the spirits became waste

when the company closed down the plant and aban-

doned the tanks. Jd. at 847.

Finally, in Owen Electric Steel Co. v. Browner, the

Court of Appeals for the Fourth Circuit held that EPA

did not abuse its discretion in concluding that Owen

Electric Steel Company’s slag was solid waste within

the definition of RCRA. In analyzing case law ad-

dressing the meaning of “discarded material,” the

court noted that “only materials that are ‘disposed of’

or ‘abandoned’ become part of the waste disposal

problem” with which RCRA is concerned. Browner, 37

F.3d at 149. The court held that the EPA was justified

in concluding that, because the slag sits untouched

for six months before it is sold to other entities, it is

“part of the waste disposal problem.” /d. at 150.

We have been unable to find any court of appeals

that has endorsed the remarkable notion that a

company that abandons materials that constitute

hazardous waste has no duty to label them, to store

them properly, and, pursuant to a waste manifest, to

arrange for their transportation to a permitted haz-

ardous waste treatment or disposal unit for their

proper disposition.

16

When Respondents abandoned hazardous mate-

rials at ARE’s property, the materials became “part of

the waste disposal problem” with which RCRA is

concerned, and that material was “discarded” for

purposes of RCRA. The regulations define “discarded

material” as any material that is abandoned by being

“disposed of,” “burned or incinerated” or “accumu-

lated, stored or treated ... before or in lieu of being

abandoned by being disposed of, burned, or inciner-

ated.” 40 C.F.R. § 261.2. The material then became

“solid waste.” See 42 U.S.C. § 6903(27). Some of the

material was “hazardous waste” for purposes of

RCRA. Hazardous waste must be labeled, contained,

and properly stored while awaiting transportation to

a permitted treatment, storage, or disposal facility.’

See 42 U.S.C. § 6922(a); 40 C.F.R. § 262.34. Maryland

has parallel regulations. COMAR § 26.13.03.05. In a

nutshell, the federal and state hazardous waste rules

(and the other rules cited by Petitioner) do not re-

quire hazardous waste pickups every hour or every

* RCRA excludes “(sJource, special nuclear or by-product

material as defined by the Atomic Energy act of 1954” from the

definition of solid waste. 40 C.F.R. § 261.4(aX4). The federal

Atomic Energy Act of 1954, 42 U.S.C. §§ 2014-2114, and the

regulations promulgated thereunder, however, impose similar, if

not more stringent requirements for the storage, transfer and

disposal of by-product, source or special nuclear material

pursuant to licenses issued by the Nuclear Regulatory Commis-

sion (“NRC”). See 40 C.F.R. Part 20. In Maryland, by agreement

with the NRC, the Maryland Department of the Environment

regulates the use and disposal of radioactive materials. See

COMAR §§ 26.12.26.15.

17

day. As a generator of hazardous waste under RCRA,

Intracel was permitted to store hazardous waste at

the Premises for limited periods of time so long as it

complied with regulations regarding the proper

handling and storage of the waste. Waste cannot be

accumulated in a facility in random corners without

packaging or labeling precisely to protect against

events like the abandonment here. In addition, at the

moment Intracel abandoned the premises, the materi-

als were “abandoned” and become hazardous wastes.

The Maryland Court of Special Appeals found

that the “[njone of the COMAR [hazardous waste]

regulations cited in ARE’s brief here have application

because ... there was no allegation that any of the

defendants transported the waste offsite or otherwise

disposed of the hazardous materials. Instead, they

left it at the leased premises.” (App. 20.) In fact, the

federal case law makes its clear that leaving the

hazardous materials at the leased premises consti-

tutes abandonment which constitutes disposal. More-

over, the regulatory sections cited by ARE do not

apply only where hazardous wastes (or other forms of

waste) are actually offered for transporiation. They

apply to all waste accumulated at a facility that is not

permitted as a hazardous waste facility. If waste

generated by a business — like ARE’s tenant’s business

— is never going to be offered for transportation to a

proper disposal facility, that business cannot have it on

the property at all without a permit. 40 C.FR.

§ 262.34(b); COMAR § 26.13.03.05E(2). The Court of

Special Appeals’ decision holds the opposite. The Court

18

of Special Appeals ruled, in effect, that wastes may be

held indefinitely without any regulatory obligation to

put them in a safe package in a safe place with a

label that identifies them and how long they have

been stored. (App. 20.) If the regulators happened

upon a warehouse full of unlabelled, leaking, uniden-

tified chemicals, they could take no action, under the

Court of Special Appeals’ reading of the law, because

those chemicals had not been offered for transporta-

tion.

This ruling conflicts with the rulings of the

Courts of Appeals for the Fifth and Seventh Circuits,

discussed above, which have upheld criminal convic-

tions for violations of RCRA premised on abandon-

ment of hazardous materials. Sims Bros. Constr., Inc.,

277 F.3d at 742; Wagner, 29 F.3d at 267. The decisions

of the Court of Appeals for the Fourth Circuit, also

discussed above, further confirm that abandoning

materials is the type of activity that falls within the

purview of RCRA. Browner, 37 F.3d at 150; Nurad,

966 F.2d at 847.

Thus, Intracel had a duty to ARE to comply with

the requirements of RCRA and its failure to do so was

a breach of that duty. Moreover, it is well-established

that corporate officers and directors can be held

individually liable if they were personally involved in

or directly responsible for corporate acts in violation

of RCRA. See, e.g., United States v. Dee, 912 F.2d 741

(4th Cir. 1990), cert. denied, 499 U.S. 919 (1991)

(upholding criminal conviction of civilian employees

of Aberdeen Proving Ground for unpermitted storage

19

of hazardous wastes); United States v. Union Corp.,

259 F. Supp. 2d 356, 404 (E.D. Pa. 2003) (holding

corporate officers and directors individually liable

under § 7003(a) of RCRA because, as corporate offi-

cers and directors, they operated the facility); see also

United States v. Ne. Pharm. and Chem. Co., Inc., 810.

F.2d 726, 746 (8th Cir. 1986) (holding corporate vice

president who had authority to control the handling

and disposal of hazardous substances liable for viola-

tions of CERCLA and RCRA and rejecting defendant’s

argument that he could not be held individually liable

because he acted solely as a corporate officer on behalf

of the corporation). It is not necessary to “pierce the

corporate veil” in order to impose liability directly on

the corporate officers or directors who were in a posi-

tion to control the proper disposal of hazardous

wastes. See Union Corp., 259 F.Supp. 2d at 404.

Liability in these cases does not flow from the corpora-

tion’s obligations. Individuals have a personal duty to

conduct their affairs without imposing a risk to public

health, safety, or the environment. If those affairs

include acting for or controlling a corporation, then

the corporation may have duties as well, but the

individual duties remain.

Additionally, the Court of Special Appeals im-

properly relied on Meghrig in finding no duty on the

part of the Respondents. (App. 18.) In Meghrig this

Court ruled that RCRA does not create a federal

private cause of action for past clean-up costs. Megh-

rig, 516 U.S. at 486. Meghrig, however, does not

address the scope of the duty created by RCRA, which

20

is separate from the type of remedy available under

the statute. RCRA may not provide a federal remedy

for damages, but that does not change the fact that .

Respondents had a duty under RCRA to manage and

to dispose of their hazardous waste in compliance

with RCRA and other parallel laws.

Il. THE CURRENT STATE OF THE LAW IN

MARYLAND THREATENS ADVERSE CON-

SEQUENCES AFFECTING PUBLIC HEALTH

AND SAFETY

The legal errors of the Maryland courts have

significant implications for public policy and public

safety. They endorse a cavalier attitude toward the

management of dangerous materials, which is in

direct contravention to the objectives of RCRA. Con-

gress enacted RCRA in 1976 in response to the haz-

ards posed by improper handling of hazardous

wastes. We are all familiar with the damage to health

and the environment by notorious disposal sites such

as Love Canal or the Valley of the Drums. Congress

enacted RCRA to prevent such incidents from recur-

ring. This is reflected in the legislative findings

expressed in the statute:

The Congress finds with respect to the envi-

ronment and health, that —

21

(2) disposal of solid waste and hazardous

waste in or on the land without careful plan-

ning and management can present a danger

to human health and the environment;

(5) the placement of inadequate controls on

hazardous waste management will result in

substantial risks to human health and the

environment;

(6) if hazardous waste management is im-

properly performed in the first instance, cor-

rective action is likely to be expensive,

complex, and time consuming... .

42 U.S.C. § 6901(b).

In light of these findings, in United States v.

Hoflin, 880 F.2d 1033 (9th Cir. 1989), the Court of

Appeals for the Ninth Circuit noted the following in

affirming a defendant’s felony conviction for disposal

of hazardous waste without a permit where defen-

dant had ordered the burial of paint-filled drums:

The overriding concern of RCRA is the grave

danger to people and the environment from

hazardous wastes. Such wastes typically

have no value, yet can only be safely dis-

posed of at considerable cost. Millions of tons

of hazardous substances are literally dumped

on the ground each year; a good deal of these

can blind, cripple or kill. RCRA “was enacted

to protect the national health and environ-

ment” ... Congress has determined that

“hazardous waste presents, in addition to the

22

problems associat[ed] with non-hazardous

waste, special dangers to health and requires

a greater degree of regulation than does non-

hazardous solid waste.”

Hoflin, 880 F.2d at 1038 (citations omitted). The

objectives of RCRA therefore include “assuring that

hazardous waste management practices are con-

ducted in a manner which protects human health and

the environment” and “requiring that hazardous

waste be properly managed in the first instance

thereby reducing the need for corrective action at a

future date.” 42 U.S.C. § 6902(a)(4) and (5). This

Court should not let stand a holding that hazardous

materials may be left in any condition in any location

prior to being offered for transportation. That has not

been the law since the 1970s. This Court should not

let stand a holding that any material may be left

behind in any condition with no minimal efforts to

protect the next person who enters the room from

harm.

23

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted in order that this

Court may review the judgment of the Court of Ap-

peals of Maryland and, ultimately, to vacate the

judgment below.

Respectfully submitted,

ROBERT B. McKInstTrY, JR.

Counsel of Record

DaviD G. MANDELBAUM

MARLENE S. GOMEZ

BALLARD SPAHR ANDREWS &

INGERSOLL, LLP

1735 Market Street, 51st Floor

Philadelphia, PA 19103

(215) 665-8500

CHARLES S. HIRSCH

BALLARD SPAHR ANDREWS

& INGERSOLL, LLP

300 East Lombard Street,

18th Floor

Baltimore, MD 21202

(410) 528-5600

Attorneys for Petitioner

App. 1

UNREPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1502

September Term, 2004

ARE ACQUISITIONS, LLC

V.

MICHAEL HANNA, JR., ET AL.

Salmon,

Krauser,

Wenner, William W. (Ret., Specially Assigned),

JJ.

Opinion by Salmon, J.

Filed: August 24, 2006

This appeal involves a complicated set of under-

lying facts, many of which were set forth in a forty-

two page, second-amended complaint filed by appel-

lant, ARE Acquisitions, LLC (“ARE”). The second-

amended complaint was filed in the Circuit Court for

Montgomery County, and it names seven individual

defendants, all of whom were alleged to be affiliated,

in some fashion, with Intracel Corporation (“In-

tracel”). In addition, ARE named Intracel Acquisition

Holding Company, LLC (“IAHC”), and Dublind Part-

ners, Inc. (“Dublind Corp.”), as defendants.

App. 2

The individual defendants and their affiliation

with Intracel are: Michael G. Hanna, Jr. (Chief Ex-

ecutive Officer); Peter Nardin (Chief Operating

Officer); Jonathan Swindle (Chief Financial Officer);

Charles Dubroff (Director); Richard Cox (General

Counsel); Charles Lindsay (Director); and David Fox

(Director). The second-amended complaint contains

six counts, but only three are here of importance, i.e.,

trespass (Count 1); waste (Count 2); and negligence

(Count 3).’

Intracel was not named as a defendant. It filed

for bankruptcy in September 2001. ARE asserted a

$728,752 claim against it in the bankruptcy proceed-

ing.

As to the trespass count, ARE sought summary

judgment against all the individual defendants except

Cox. That motion was denied. The motions judge also

dismissed, without leave to amend, ARE’s negligence

count and all portions of the complaint requesting

punitive damages. Later, the court granted. a motion

for summary judgment in favor of all defendants as to

the trespass and waste counts.

' In its reply brief, ARE contends that it challenges in this

appeal the circuit court’s grant of summary judgment in favor of

the defendant as to the counts of aiding and abetting waste and

aiding and abetting trespass. But in its initial brief, ARE did not

challenge the grant of summary judgment as to either aiding

and abetting waste or aiding and abetting trespass. Thus, those

challenges are waived. Oak Crest Village, Inc. v. Murphy, 379

Md. 229, 241-42 (2004).

App. 3

ARE filed this timely appeal in which it claims:

(1) the court erred in dismissing the negligence count;

(2) the court erred in granting summary judgment in

favor of the defendants on the trespass count; (3) the

trial court erred in granting summary judgment in

favor of the defendants as to the waste count; (4) the

court erred in dismissing the portion of the second

amended complaint in which ARE attempted to set

forth its entitlement to punitive damages; and (5) the

court erred in denying ARE’s motion for summary

judgment as to liability as to all individual defen-

dants except Cox on the trespass count.

I.

A. Dismissal of the Negligence Count

All of the defendants filed motions to dismiss

Count 3, the negligence count, for failure to state a

cause of action upon which relief could be granted. In

considering whether the motions judge erred in

granting the dismissal motion, we must assume the

truth of all well-pleaded relevant facts as set forth in

the second-amended complaint, as well as all infer-

ences that reasonably can be drawn therefrom. See

Alleco v. Weinberg Foundation, 340 Md. 176, 193

(1995). “On the other hand, any ambiguity or uncer-

tainty in the allegations bearing on whether the

complaint states a cause of action must be construed

against the Pleader.” Alleco, 340 Md. at 193 (quoting

Charrow v. State Farm Mut., 306 Md. 754, 768

(1986)).

App. 4

“[S]o long as the complaint on its face does not

‘state a claim upon which relief may be granted, we

may affirm the dismissal of the complaint, even on a

ground not relied upon by the circuit court.” Lizzi v.

WMATA, 156 Md. App. 1, 7 (2004).

B. Allegations in the Second-Amended Com-

plaint Concerning Defendants’ Negligence

ARE is the owner of an office building containing

laboratory space located at 1330 Fickard Drive,

Rockville, Maryland (hereafter “the property”). When

ARE purchased the property in June 1997, Intracel, a

biopharmaceutical company that was in the business

of developing vaccines and other products for the

treatment of various diseases, was a tenant occupying

the property. ARE thus inherited Intracel as a tenant.

Intracel’s operations involved the use of hazard-

ous material commonly used in the biopharmaceuti-

cal industry, including biological agents and

radioactive material, as well as various chemicals,

such as acids, lacquer thinner, oxygen, argon, cage-

washing detergent, and sodium hydroxide. Intracel’s

operation also involved the use of incinerators, irra-

diators, syringes, and other scientific equipment.

Intracel experienced financial difficulties in 1998

because it was generating little or no revenue. As a

consequence, it needed “regular infusions of capital to

meet its expenses.”

App. 5

In March 1999, Intracel’s then chief executive

officer approached Charles Lindsay (one of the appel-

lees) and attempted to Persuade him to invest money

in Intracel. Lindsay and Charles Dubroff (also an

appellee) were part owners of another, appellee,

Dublind Corp. Prior to March 1999, Dublind Corp.

had made investments in Intracel.

The discussions with Lindsay proved fruitful, and

in August 1999, Lindsay agreed to have Dublind

Corp. transfer money to Intracel in exchange for

seventy percent of Intracel’s common stock, one

hundred percent of Intracel’s preferred stock, and a

security interest in certain of Intracel’s assets.

Shortly thereafter, Dublind Corp., Lindsay, and

Dubroff formed IAHC “and began advancing money to

Intracel through LAHC to fund Intracel’s operations.”

Contemporaneously with this infusion of money,

IAHC began to take measures to protect its invest-

ment. For instance, IAHC sent Appellee Nardin, an

employee of Dublind Corp., to Intracel with the job of

protecting LAHC’s investment by monitoring In-

tracel’s finances and operations. Thereafter, Nardin

reported back to Defendants Lindsay, Dubroff, and

other individuals affiliated with Dublind Corp. and

IAHC concerning Intracel’s operation. From August

1999 onward, Nardin “worked at the premises to limit

and closely control Intracel’s cash and spending and

to protect L[AHC’s investment in Intracel.”

Dublind Corp. and IAHC hired Appellee Swindle

in December of 1999 “to consult for Dublind [Corp.]

and IAHC regarding Intracel’s finances and to protect

App. 6

the investment in Intracel made by Dublind [Corp.]

and IAHC.” In March 2000, Dublind Corp. and IAHC

arranged “to have Swindle become Intracel’s full-time

chief financial officer.”

At approximately the same time as Swindle

became the chief financial officer of Intracel, Appel-

lees Nardin, Dubroff, Lindsay, and Fox became mem-

bers of Intracel’s board of directors, and Nardin

became Intracel’s chief operating officer. Thereafter,

Dublind Corp. and IAHC “became Intracel’s primary

source of funding for operations” and all the individ-

ual defendants, except Cox, “controlled the flow of

money into and out of Intracel,” as well as the uses of

such funds. Financial control was so strict that, by

early 2000, Intracel was required to obtain the ap-

proval of LAHC and all individual defendants, except

for Cox and Fox, “for every payment Intracel made.”

Whenever Intracel needed to pay money for operating

expenses, Intracel’s comptroller would submit a

written request to Swindle, Intracel’s CFO; Swindle

would, in turn, consult with Defendants Dubroff,

Lindsay, and Nardin, and that foursome “would

decide which expenses IAHC would provide Intracel

with funds to pay.” If a decision was made to pay the

expense, Dublind Corp. and/or IAHC “would then

wire only enough funds” to Intracel to pay for the

specific expenditures which Dublind Corp., “IAHC,

Dubroff, Lindsay, Nardin, and swindle approved.”

Despite this infusion of money, Intrace] continued to

incur significant expenses, including rent.

App. 7

In early 2000, Clym Environmental Services,

LLC, conducted an environmental audit of the prem-

ises Intracel leased from ARE. The audit revealed

that “Intracel was not in compliance with numerous

environmental health and safety laws and regula-

tions because, inter alia, Intracel was storing its

hazardous waste onsite for extended periods of time,

rather than removing and properly disposing of it as

required by law.” The audit also revealed that In-

tracel “had failed to maintain proper records concern-

ing its hazardous activities, failed to conduct

adequate employee safety training, and failed to

conduct legally mandated surveys of its chemical and

radioactive waste.” Despite knowing of these safety

deficiencies, “[djefendants failed to provide funding to

allow Intracel to adequately correct these conditions.”

In September 2000, Intracel fell behind in its

rent payments to ARE. By early 2001, Intracel owed

ARE approximately $400,000 in back rent.

In January 2001, the defendants caused Intracel

to sell one of its divisions for $9 million. After Intracel

paid off the division’s creditors, Intracel netted ap-

proximately $7 million in cash from the sale. But

instead of “using a portion of the $7 million [proceeds]

to pay Intracel’s lease obligations and to correct the

illegal and improper management of hazardous

waste, biomedical waste and radioactive materials by

Intracel,” Dublind Corp. and IAHC, along with Appel-

lees Dubroff, Lindsay, Nardin, and Fox “caused all of

the $7 million to be transferred to IAHC and/or

Dublind [Corp.].” In addition, from the sale of the

App. 8

division, Dublind Corp. was paid a sales commission

“of between $450,000 and $600,000.”

Defendants also used $500,000 of the proceeds

from the sale of the division “to fund IAHC’s purchase

of debt from another of Intracel’s lenders.” This half-

million-dollar expenditure “did nothing to benefit

Intracel, and only served to increase [dJefendants’

potential yield on their investment in Intracel.”

During some unspecified period, the defendants

“continued to operate Intracel despite the {act that it

was insolvent,” inasmuch as its “liabilities exceeded

its assets by a significant margin, and Intracel was

unable to meet its obligations as they became due.”

On April 4, 2001, “after Intracel was in default on

its lease obligations for approximately seven months,

and after Intracel breached numerous promises to

cure its defaults and to fulfil its obligations under the

lease,” ARE notified Intracel that the lease was

terminated effective April 19, 2001, and that Intracel

had to vacate the premises by that date.

After receipt of the April 4, 2001, termination

notice, “Defendants [sic] made a payment to ARE,

which was only a portion of the rental arrearages.”

According to the second-amended complaint, all

nine defendants “became upset at ARE over what

* As to several of the individual defendants, there is no

indication in the second-amended complaint that they had any

investment in Intracel.

App. 9

they perceived as ARE’s unreasonable refusal to

accept their proposal to reduce Intracel’s monthly

rent obligation and/or the amount of space at the

[pJroperty that Intracel was leasing.” Intracel held a

board of directors meeting on April 12, 2001. At the

meeting, Defendant Swindle, Intracel’s chief financial

officer, advised the board members in attendance,

which included Appellees Hanna, Dubroff, Lindsay,

and Nardin, that Intracel would be evicted from the

premises “immediately” unless the rent was paid in

full. Despite this immediate eviction threat, the board

of directors of Intracel “deliberately decided to take

no action so as to keep the $7 million received” in the

hands of IAHC and Dublind Corp. and thereby

“avoid([ed] paying ARE the rent owed and/or properly

removing the hazardous waste material from the

premises.”

According to the second-amended complaint, at

some point in time, which is not specified, Dublind

Corp., IAHC, and all of the individual defendants

except Cox “had already decided that Intracel would

vacate the [p]remises and relocate to a smaller facil-

ity without paying ARE any of the money due under

the [l]ease, and without paying” for the proper dis-

posal of the hazardous waste being stored on the

property.

On the same day as the board of directors meet-

ing (April 12, 2001), Appellee Dubroff met with “cer-

tain upper-level employees” of Intracel and told them

for the first time that Intracel was going to move out

of the premises to a new location. On April 12, 2001,

App. 10

Intracel began “the huge task of vacating the prem-

ises.”

Twelve days later, on April 24, 2001, Nicholas

Pomotto, Ph.D., Intracel’s safety officer, sent Appel-

lees Hanna, Nardin, Swindle, and Cox a memoran-

dum “reminding them of Intracel’s obligation under

various environmental laws and regulations to prop-

erly remove and dispose of all hazardous materials at

the premises.” Dr. Pomotto sent this memorandum

because “[dJefendants ignored his prior oral request”

for “resources to properly and legally remove and

dispose of Intracel’s hazardous materials.”

Intracel remained in possession of the premises

until April 30, 2001.

The complaint asserts that “in retaliation for

ARE’s refusal to allow Intracel to remain at the

premises on their terms, [{djefendants deliberately

elected not to properly and legally contain and safely

remove all the hazardous waste and material from

the premises,” and based on the same motive, “In-

tracel left the premises in disarray, abandoning large

quantities of unwanted hazardous waste and con-

taminated materials, including but not limited to,

biological agents, radioactive materiai, and dangerous

chemicals....” The abandoned materials, in many

cases, “were left unlabeled, and/or unidentified,”

which significantly and quantifiably increased the

risk, timing, and expenses of disposal, which ARE

later incurred. In addition, at some unspecified time,

App. 11

hazardous materials were spilled on lab benches and

the floor. Moreover, hazardous materials

were strewn about the premises in a manner

which demonstrated that [d]Jefendants in-

tended in retaliation for ARE’s refusal to

Intrace]l to remain at the premises on defen-

dants’ terms, and with actual malice and ill

will to increase the amount of harm to ARE’s

property, as well as a risk and expense of

cleaning up the material.

In addition, Intracel “left strewn about the prem-

ises unwanted and contaminated laboratory materi-

als and equipment, including but not limited to,

cabinets, refrigerators, freezers, incubators, syringes,

thermometers, carts, shelving, chairs, desks, and

office supplies.” Included in the contaminated mate-

rial left behind “were two large irradiators, which

were subject to numerous permits and environmental

laws.” These irradiators had to be later “leak tested

and removed from the site by ARE at great expense.”

Intracel also left at the premises an incinerator

that “contained a large quantity of ash, including

some which was only partially incinerated.” The

incinerator ash had to be analyzed, packaged, and

disposed of by ARE. In addition, Intracel, “at the

direction of {[djefendants and with retaliatory intent

also caused other significant damage to the premises,

including intentionally ripping out interior doors and

doorframes.”

App. 12

All the individual defendants, except Dubroff,

Lindsay, and Fox “were present at the premises in

late April 2001, and directed and participated in

Intracel’s departure from the premises, including the

retaliatory abandonment of waste and contaminated

material at the premises.”

Swindle was in charge of overseeing Intracel’s

move from the premises, and he “physically partici-

pated in removing hazardous materials from refrig-

erators and abandoning it at the premises.” When

Intracel left, the premises were in a “state of disarray,

disrepair, and full of chemical, biological, and radioac-

tive hazardous waste.” This was done intentionally by

the defendants “with ill will and actual malice, and in

retaliation for ARE’s refusal to allow Intracel. to

remain at the premises on [djefendant’s terms. . . .”

On the date of Intracel’s departure, Defendants

Cox and Swindle met with representatives of ARE, as

well as a representative from Intracel’s environ-

mental consultant. The consultant observed that

“Intracel had left ‘substantial’ amounts of waste,

chemicals, trash, and other items strewn about the

premises in a way that a ‘major effort’ would be

required to properly clean up the premises.” The

environmental consultant concluded that an earlier

cost estimate for the clean-up “was no longer valid in

light of the manner in which [dJefendants had strewn

hazardous materials around the premises.”

Despite a promise by Intracel] to have the envi-

ronmental consultant perform the clean-up, Intracel

App. 13

never provided ARE with an adequate plan, nor did

Intracel provide the environmental consultant “with

adequate funds to perform the clean-up.”

On June 15, 2001, Intracel’s environmental

consultant told Intracel that it “would not do any

additional work unless it received payment of

$12,440.” The defendants refused to authorize money

to initiate the plan to cleanup the premises “in re-

taliation for ARE’s refusal to allow Intracel to remain

at the premises on [d]efendants’ terms.” This refusal

was made despite the fact that Intracel had received

the aforementioned $7 million from the sale of one of

its divisions, plus another $1 million for the sale of

one its licenses. Instead of paying for clean-up costs,

“(djefendants caused the money received by Intracel

to be transferred to and retained by IAHC and/or

Dublind [Corp.] for the benefit of LAHC and its own-

ers, including” Dublind Corp., Dubroff, Lindsay, and

Fox.

After the eviction, defendants “authorized In-

tracel to enter into leases for new premises and

storage facilities, pay security deposits at [the] new

locations, and incur additional expenditures, includ-

ing hiring movers and storing material at a ware-

house.” Because “of [d]efendants’ conduct,” ARE was

forced to hire contractors “to perform extensive clean-

up over a prolonged period of time” to decontaminate

the premises at a cost of in excess of $500,000. Addi-

tionally, because of the failure to clean up the prop-

erty, ARE lost rental income in excess of $1.5 million.

App. 14

The negligence count also alleged that all defen-

dants except for Swindle and Cox “sold Intracel’s

most valuable assets and siphoned off the property

from Intracel, leaving Intracel unable to meet its

obligations under the lease and under applicable law

and regulations.” Lastly, the second-amended com-

plaint alleges that all the defendants “directed, were

aware of, and participated in the intentional and

wrongful conduct of Intracel, which resulted in prop-

erty damage to the premises and a loss of use of the

premises.”

The second-amended complaint alleged that all

the defendants owed duties to ARE that

includ[ed], but [were] not limited to, duties to

comply with all the applicable laws, regula-

tions, rules, and orders of every governmen-

tal agency having jurisdiction over the

[p]remises, including but not limited to those

related to health, safety, and environmental

protection and to diligently remove and clean

up any waste and material abandoned at the

premises.

The “acts and omissions” of the defendants

constituted violations of numerous environ-

mental statutes and regulations, including

but not limited to the Atomic Energy Act, the

Resource Conversation and Recovery Act, 42

U.S.C. § 6922 (and related regulations at 40

C.F.R. §§ 262.30 and 262.34) and 42 U.S.C.

6929(d)(1) to 6928(d)(2); Md. Code, Environ-

mental Article, Titles 7 and 8; and Sections

App. 15

26.13.11 and .12 of the Code of Maryland

Regulations. These statutes were enacted as

safety measures, and were designed to pro-

tect a class of persons which included ARE,

its employees and other occupants of the

Property.

In Paragraph 118 of the second-amended com-

plaint, ARE reiterates, albeit in a slightly different

fashion, the following allegation:

Instead of authorizing the payment of

funds to pay Intracel’s rent and to clean up

the [p]remises and restore it to its proper

condition, [dJefendants Dublind, Dubroff,

Lindsay, Nardin, Fox and LAHC sent $7 mil-

lion in cash to Dublind and/or IAHC, thereby

leaving Intracel insolvent and devoid of

funds to perform its obligations under the

[l]ease.

II.

Did the court err in dismissing the

negligence count as against all defen-

dants?

For a plaintiff to state a prima facie

claim in negligence, he or she must prove the

existence of four elements by alleging facts

demonstrating: “(1) that the defendant was

under a duty to protect the plaintiff from in-

jury, (2) that the defendant breached that

duty, (3) that the plaintiff suffered actual in-

jury or loss, and (4) that the loss or injury

App. 16

proximately resulted from the defendant’s

breach of the duty.”

Patton v. United States Rugby Football, 381 Md. 627,

635-36 (2004) (citations omitted).

All nine defendants contend, inter alia, that

appellant’s negligence counts failed to allege facts

showing that any of them breached a duty for which

recompense can be obtained under a negligence

theory.

ARE counters by asserting: officers and directors

of a corporation bear personal responsibilities for

torts of the corporation in which they participate or

that they bring about (citing Metromedia Co. v.

WCBM Maryland, Inc., 327 Md. 514, 520 (1992)); the

defendants are all officers and directors of Intracel

who participated in or brought about the negligence;

therefore, if ARE alleged facts showing that Intracel

was negligent, then all nine defendants were negli-

gent.

There are several problems with ARE’s analysis.

First, three of the nine defendants were neither

officers nor directors of Intracel, i.e., [AHC, Dublind

Corp., and Cox. Thus, as to those defendants, the

analysis is fatally flawed. As to the remaining six

defendants, there are additional problems.

Violation of a statute may furnish evidence of

negligence, but “only where the person alleging

negligence is within the class of persons sought to be

protected, and the harm suffered is of the kind which

App. 17

the statute was intended, in general, to protect.” See

Atlantic Mutual v. Kenney, 323 Md. 116, 124 (1991)

(and cases therein cited) (emphasis added). The

defendants contend, and we agree, that the statutes

relied upon by appellant were not intended to protect

against the type of harm appellant experienced.

In its opening brief, appellant claimed that

Intracel and the nine defendants had a duty recog-

nized by various laws and regulations to clean up the

premises. ARE contends that a cause of action for

negligence was stated because the “defendants di-

rected Intracel to leave materials at the Premises and

as a result the material was ‘discarded’ within the

meaning of the federal Resource Conservation and

Recovery Act (“RCRA’), 42 U.S.C. §§ 6901-991. And,

according to ARE, under the RCRA, the material,

when the defendants left it on the Premises, became

‘solid waste,” as defined in section 6903 (27) of the

RCRA.

ARE then argues as follows:

Any person adversely affected has stand-

ing to enforce the requirements of RCRA. 42

U.S.C. § 6972. Corporate officers and direc-

tors are responsible for RCRA violations of

their corporations. See, e.g., United States v.

Dee, 912 F.2d 741 (4th Cir. 1990), cert. de-

nied, 499 U.S. 919 (1991) (upholding crimi-

nal conviction of civilian employees of

Aberdeen Proving Ground for unpermitted

storage of hazardous wastes); United States

v. Conservation Chemical Co., 733 F. Supp.

App. 18

1215 (N.D. Inc. 1989) (civil enforcement

case); Noel Wise, Personal Liability Promotes

Responsible Conduct: Extending the Respon-

sible Corporate officer Doctrine to Federal

Civil Enforcement, 21 STAN. ENVTL. L.J. 283

(2002); cf. Delaney v. Town of Carmel, 55

F. Supp. 2d 237 (S.D.N.Y. 1999) (citizen suit

against corporate officers of real estate de-

velopment company fails only because no

proof of any more than ownership of real es-

tate).

None of the cases cited by ARE are apposite.

RCRA was not designed to protect private entities,

like ARE, from economic harm. And what ARE seeks

in the subject lawsuit is solely for recompense for

economic harm, i.e., its clean-up costs.

The Supreme Court has ruled that RCRA’s

protection for private citizens by way of section 6972

“was not intended to provide a remedy for past clean-

up costs.” Meghrig v. KFC Western, Inc., 516 U.S. 479,

486 (1996). The Meghrig Court said, in relevant part:

That RCRA’s citizen suit provision was

not intended to provide a remedy for past

clean-up costs is further apparent from

the harm at which it is directed. Section

6972(a)(1) B) permits a private party to bring

suit only upon a showing that the solid, or

hazardous waste at issue “may present an

imminent and substantial endangerment to

health or the environment.” The meaning of

this timing restriction is plain: An endanger-

ment can only be “imminent” if it “threaten(s]

App. 19

to occur immediately,” Webster’s New Inter-

national Dictionary of English Language

1245 (2d ed. 1934), and the reference to

waste which “may present” imminent harm

quite clearly excludes waste that no longer

presents such a danger. As the Ninth Circuit

itself intimated in Price v. United States

Navy, 39 F.3d 1011, 1019 (1994), this lan-

guage “implies that there must be threat

which is present now, although the impact of

the threat may not be felt until later.” It fol-

lows that § 6972(a) was designed to provide a

remedy that ameliorates present or obviates

the risk of future “imminent” harms, not a

remedy that compensates for past clean-up ef-

forts. Cf. § 6902 (b) (national policy behind

RCRA is “to minimize the present and future

threat to human health and the environ-

ment”).

516 U.S. 485-86 (emphasis added); see also Furrer v.

Brown, 62 F.3d 1092, 1097-1101 (8th Cr. 1995) hold-

ing that Congress did not intend RCRA to provide

private citizens with a monetary award for past

clean-up costs); U.S. v. Domestic Indust., Inc., 32

F.Supp.2d 855, 870 (1991) (same).

ARE also argues that Maryland has regulations

“paralle[l]” to those set forth in section 6922(a) of the

RCRA. The “parallel” regulation cited is Code of

Maryland Regulations (“COMAR”), section 26.13.05.05.

ARE alleges that “special medical waste” and “regu-

lated radiological hazardous substance” as defined in

COMAR must be “specially packaged, labeled, and

App. 20

handled once discarded.” For this last proposition,

appellant cites COMAR §§ 26.13.12.05 and

26.15.02.04.

COMAR § 26.13.12.05 is inapplicable because it

deals with how hazardous material must be specially

packaged, labeled, and handled before “transporting

or offering for transport” the hazardous material.

(Emphasis added.) COMAR § 26.15.02.04 deals’ with

identification, classification, and minimum predis-

posal requirements for hazardous substances and

deals with what must be done before shipping or

disposing of the substance. None of the COMAR

regulations cited in ARE’s brief here have application

because, in the second-amended complaint, there was

no allegation that any of the defendants transported

the waste offsite or otherwise disposed of the hazard-

ous materials. Instead, they left it at the leased

premises. In sum, appellant’s brief fails to point to

any COMAR regulation that was breached when

Intracel abandoned the property.

ARE also now asserts that the landlord, and by

extension all nine defendants, owed a common law

duty to it to avoid damage to the leased property. But

in the second amended complaint, ARE alleged that

the duties, which the defendants owed to it, were the

duties

to comply with all the applicable laws, regu-

lations, rules, and orders of every govern-

mental agency having jurisdiction over

the [leased] premises including but not lim-

ited to those relating to health, safety, and

App. 21

environmental protection, and [imposing the

requirement] to diligently remove and clean

up any waste and material abandoned at the

[leased] Premises.

Thus, although the second amended complaint

was ARE’s third try at stating a cause of action for

negligence, it failed to allege any common law duty

that was negligently breached by the defendants.

In large measure, appellant appears to be at-

tempting to assert that the defendants “negligently”

breached the lease contract. Such an assertion is

insufficient to state a cause of action for negligence.

See Heckrotte v. Riddle, 224 Md. 591, 595 (1961)

(Maryland does not recognize a cause of action for

negligent breach of contract unless the plaintiff can

show a duty or obligation imposed by law independ-

ent of that arising out of contract). More importantly,

in its opposition to the motion to dismiss the negli-

gence count, ARE never contended before the motions

court that any of the defendants breached a common

law duty owed to it. Its sole contention was that the

tenant breached a duty imposed by RCRA and/or

other governmenta! statutes or regulations dealing

with the handling of hazardous materials. Therefore,

appellant’s present contention that the defendants

were liable under Count 3 due to a breach of a com-

mon law duty is not preserved for appellate review.

See Md. Rule 8-131(a) (except for jurisdictional is-

sues, an appellate court ordinarily will not review on

appeal any issue that was neither raised nor decided

below).

App. 22

The motions judge did not err, or abuse his

discretion, by dismissing Count III.

iil.

Did the trial court err in granting sum-

mary judgment in favor of all defen-

dants as to the trespass count?

When the motions judge granted summary

judgment in favor of all defendants as to the counts

alleging trespass, he did so for “the reasons advanced

by [the defendants] in their global motion for sum-

mary judgment” set forth at “Docket Entry [No.] 294,”

including defendants’ memoranda in support of that

global motion.

Maryland appellate courts, as a general rule, will

sustain the granting of a motion for summary judg-

ment only on the grounds upon which the motions

judge relied in granting the motion. Kid v. Duke, 373

Md. 2, 10 (2003) (citing Lovelace v. Anderson, 366 Md.

690, 695 (2001) (quoting PaineWebber v. East, 363

Md. 408, 422 (2001))). There is an exception to this

general rule, viz., “if the alternative ground is one

upon which the circuit court would have had no

discretion to deny summary judgment, summary

judgment may be granted for a reason not relied

on by the trial court.” Vogel v. Touhey, 151 Md. App.

682, 706 (2003) (citing Ragin v. Hayden Co., 133 Md.

App. 116, 134 (2000)). In the subject case, neither

party argues that the exception to the general rule is

applicable. In fact neither party even mentions the

App. 23

exception. Accordingly, we shall focus, exclusively, on

the grounds relied upon by defendants in their global

motion for summary judgment in discussing the

trespass and waste counts.

In their motions for summary judgment, the

defendants pointed out that a part of ARE’s trespass

action concerned Intracel’s activities on the property

between April 18 and April 30, 2001. According to

movants, the District Court for Montgomery County

ruled that Intracel had a right to remain on the

premises and ARE had no right to throw them out

during the twelve-day period between April 18

through April 30. The circuit court agreed with this

contention, and in this appeal, ARE does not argue

that the court erred in granting summary judgment

as to that relatively small part of its trespass claim.

The second part of the defendants’ global motion

for summary judgment, and the only part briefed in

this Court by the parties, concerned the defendants’

contention that, even if the defendants committed

trespass by leaving behind hazardous waste and

other materials after they vacated the premises,

abandonment of property in this fashion “does not

constitute a trespass under Maryland law.”

According to movants, the dispositive issue (as to

the trespass count) was addressed “squarely” in

Rosenblatt v. Exxon Co., 335 Md. 58, 78 (1994).

Rosenblatt involved land owned by Earl Wagner,

which had been leased by Wagner to Exxon from 1951

through 1985. 335 Md. at 63. During that period,

App. 24

Exxon subleased the property to various operators of

gasoline stations. Jd. In 1986, after Exxon’s lease

expired, Rosenblatt leased from Wagner the same

property that previously had been leased to Exxon. It

was thereafter discovered by Rosenblatt that there

was extensive petroleum contamination of the soil

and ground water on the leased property. Id. at 64.

Rosenblatt sued Exxon for damages and included

in his complaint a count alleging trespass. Id. As to

the trespass count, Exxon contended that the tort of

trespass

is concerned only with the rights and obliga-

tions of occupiers of adjoining land. For a

continuing trespass to occur, it alleged that

“there must be an original tortious placing of

something on the land of another.” Jd. at 68.

The circuit court granted summary judgment

in favor of Exxon as to the trespass count

and all others.

Id. at 65.

The Court of Appeals said in Rosenblatt:

When a defendant interferes with a

plaintiff’s interest in the exclusive posses-

sion of the land by entering or causing some-

thing to enter the land, a trespass occurs.

See Rockland, Inc. v. H. J. Williams, 242 Md.

375, 385... . (1966).

We have recognized that a trespass oc-

curs when there is interference in the exclu-

sive Possession of the land of another, see

App. 25

Rockland, supra, but we have never recog-

nized a trespass where the thing which in-

trudes actually entered the land during the

“trespasser’s” possession and the plaintiff

took possession of the land subsequent to the

“intrusion.”

Rosenblatt relies upon § 161 of the Re-

statement (Second) of Torts (1975) to support

his position that Exxon committed a trespass

when it allegedly caused the property to be

contaminated during its occupancy and the

contamination continued into Rosenblatt’s

occupancy of the land. Section 161 provides

that: “A trespass may be committed by the

continued presence on the land of a struc-

ture, chattel, or other thing which the actor

has tortiously placed there.”

Section 161 does not support Rosen-

blatt’s position. It explicitly provides that a

trespass involves the tortious placing of

something on the land and implicitly pro-

vides that the affected land is the land of an-

other. Section 158 [of the Restatement

(Second) of Torts] further supports this inter-

pretation. It states that “one is subject to li-

ability to another for trespass ... if he

intentionally enters land in the possession of

the other, or causes a thing or a third person

to do so, or remains on the land, or fails to

remove from the land a thing which he is un-

der a duty to remove.” (emphasis added).

Exxon did not cause the contamination to oc-

cur during Rosenblatt’s occupancy; the intro-

duction of the contamination could only have

App. 26

occurred prior to its relinquishing possession

of the land. Additionally, Exxon owed Rosen-

blatt no duty to remove the contamination.

Rosenblatt cites no authority, nor do we

find any, to support the position he asserts.

At least two courts have explicitly rejected

similar claims, see Wilson Auto Enterprises v.

Mobil Oil Corp., 778 F.Supp. 101 (D.R.L

1991) (company’s release of oil on own land

could not constitute trespass upon subse-

quent occupier); Wellesley Hills, supra, 747 F.

Supp. at 99 (same), and we think that theirs,

is the better interpretation. We conclude,

therefore, that the trial court did not err in

granting Exxon’s motion for summary judg-

ment.

Id. at 78-79 (emphasis added).

Admittedly, as the appellees stress, the words

“we have never recognized a trespass where the thing

which intrudes actually entered the land during the

trespasser’s possession and the plaintiff took posses-

sion of the land subsequent to the intrusion,” when

read in isolation, would support the grant of sum-

mary judgment in favor of all defendants as to the

trespass count. But the language must be read in

context. The Rosenblatt Court used the language just

quoted when explaining why Section 161 of the

Restatement (Second) of Torts was inapplicable. But

it is important to note that in the course of that

discussion, the Rosenblatt Court quoted portions of

Section 158 of the Restatement (Second) of Torts.

Section 158 reads:

App. 27

§ 158. Liability for Intentional Intrusions

on Land

One is subject to liability to another for

trespass, irrespective of whether he

thereby causes harm to any legally pro-

tected interest of the other, if he inten-

tionally

(a) enters land in the possession of

the other, or causes a thing or a third

person to do so, or

(b) remains on the land, or

(c) fails to remove from the land a

thing which he is under a duty to re-

move.

(Emphasis added.)

We read the Rosenblatt Court’s decision as hav-

ing said, in effect, that Section 158(a) of Restatement

(Second) of Torts was inapplicable because, inter alia,

Exxon did not “enter land in the possession of the

other or cause a thing or a third person to do so.” And

the Rosenblatt Court also rejected the applicability of

Section 158(c) because no duty was owed by a former

tenant to a successor lessee to remove anything. Id.

at 79. But in the case at hand, no “successor lessee” is

involved.

In the subject case, we can see no reason why

Section 158(c) would not be applicable to Intracel. In

their global motion appellees asked for summary

judgment as to the trespass count because Intracel

App. 28

could not be sued in trespass for failure to remove

material from the formerly leased premise. Appellees

did not contend that no duty was owed by them to

ARE. Thus, we cannot affirm on the latter ground.

ARE contended below and contends in this

appeal that the Metromedia case is apposite and

demonstrates that the defendants may be held liable

under the trespass count. We agree. Metromedia

Company was the sublessee of approximately forty

acres of improved real estate located in Owings Mills,

Maryland. 327 Md. at 515. In February 1987,

Metromedia entered into an agreement for the sub-

leasing of the premises to Magic 680, Inc. (hereinafter

“Magic 680”). Magic 680 defaulted on its obligation to

Metromedia, and the receiver of Magic 680 executed

an agreement with WCBM to allow the latter to

occupy the premises until February 28, 1989. Jd. at

516.

WCBM refused to move from the premises after.

February 28, 1989, and Metromedia filed an action in

ejectment against WCBM and its chief executive

officer, Nicholas Mangione. Jd. at 517. Prior to trial,

Mangione moved for, and was granted, summary

judgment in his favor based on the court’s finding

that “the plaintiff cannot claim that Mr. Mangione’s

wearing one hat when he’s dealing with them and

then wearing another at a later time, and there’s

been no showing that he was dealing with Metrome-

dia as an individual at any time.” /d.

App. 29

The central issue presented in the Metromedia

appeal was whether WCBM’s chief executive officer

could be successfully sued in tort for trespass based

upon the fact that he, as the chief executive officer of

WCB\M, had participated in the decision to unlawfully

have WCBM remain on the premises after its right to

do so had expired. Jd. at 518. In ruling that summary

judgment should not have been granted in favor of

Mr. Mangione, the Court said that Metromedia had

alleged facts sufficient to establish that WCBM

occupied the premises until February 28, 1989, by

virtue of an agreement with the receiver of Magic

680. Magic 680, in turn, occupied the premises under

a sub-sublease from Metromedia; the term of that

sub-sublease expired on February 28, 1989; and

consequently, WCBM’s rights to occupy the premises

also expired on February 28, 1989. According to the

Metromedia Court, the failure of WCBM to vacate the

premises in response to Metromedia’s demand caused

WCBM to be a trespasser on the property of

Metromedia. The Court explained:

Fett v. Sligo Hills, 226 Md. 190 ...

(1961), is apposite. In that case, the evidence

showed that Herbert Fett was an accountant

employed in New York by Sligo Hills Devel-

opment Corp., that he moved to Washington,

D.C., to work full time for the corporation,

that Sligo built a house so that Fett and his

family would have a place to live, and that

the family moved into the premises with

Sligo’s permission. There was further proof

that Sligo orally agreed to sell Fett the house

App. 30

for its cost, approximately $40,000, and that,

when he sold his house in New York, he was

to pay $25,000 in cash and give a deferred

purchase money mortgage for the balance of

the purchase price. Fett died severalymonths

after moving into the house. His widow,

without honoring her husband’s promise to

buy the house, continued to live in the house

rent-free with her children and refused to

vacate the premises upon Sligo’s demand.

Sligo brought suit in ejectment and ob-

tained a judgment for immediate possession

of the house and damages against the widow

and her children. We affirmed that judgment

with a modification of the amount awarded

as damages. Judge Hammond, later Chief

Judge of this Court, wrote that “ejectment is

an appropriate remedy under the circum-

stances of the case before us.” Jd. at 196....

Explaining the appropriate measure of dam-

ages, the Court stated:

“On the question of damages as

apart from the right to possession,

we think a different test should be

applied in this case. Sligo put the

Fetts in possession without demand-

ing or expecting compensation in re-

turn and left them there on that basis

for an extended period. It should not

be entitled to damages until their oc-

cupation became tortious, which we

think was when the first unequivocal

demand to all the Fetts, both adult

and infants, to vacate the premises

App. 31

was made by the filing of the eject-

ment suit in May, 1958. An occu-

pancy rightful because permissive

becomes tortious when a proper de-

mand to vacate is ignored and it is

then the occupants become trespass-

ers and damages for their wrongful

occupancy begin to accrue. 1 Re-

statement, Torts, Sec. 158(6b), and

comment k thereof; Sec. 171, and

comment d thereof.”

Id. at 197... . (emphasis added).

Td. at 518-19 (some emphasis added).

As can be seen, the Fett Court relied on 1 Re-

statement, Torts, Section 158(b), comment k to Sec-

tion 158(b), Section 171 of 1 Restatement, Torts, and

comment d to Section 171. 1 Restatement Torts,

Section 158(b), is substantively the same as Section

158(b), Restatement (Second) of Torts, which we have

quoted supra. Comment k to Section 158(b) in 1

Restatement of Torts is now comment 1 to Section

158(b), Restatement (Second) of Torts.® Section 171 of

* Comment 1 to Section 158, Restatement (Second) of Torts,

reads:

Liability for Intentional Intrusions on Land

One is subject to liability to another for trespass, irre-

spective of whether he thereby causes harm to any le-

gally protected interest of the other, if he intentionally

(a) enters land in the possession of the other, or

causes a thing or a third person to do so, or

(b) remains on the land, or

(Continued on following page)

App. 32

the Restatement (Second) of Torts is the same as l

Restatement of Torts, Section 171.*

The Court held that, if Metromedia’s version of

events were believed, WCBM became “a trespasser

on” the Premises when it refused Metromedia’s

demand to leave” and that the “trespass constituted

tortious conduct on the part of WCBM.” Metromedia,

327 Md. at 518. The Court went on to hold that Mr.

Mangione, as the chief executive officer of WCBM,

would also be liable if plaintiffs could prove that

Mangione “participated in what is alleged to be an

unlawful detention of Metromedia’s property by

WCBM.” Id. at 519 (citing, inter alia, Tedrow v.

Deskin, 265 Md. 546, 550-51 (1972)). “The general

rule is that corporate officers or agents are personally

liable for those torts which they personally commit, or

(c) fails to remove from the land a thing which

he is under a duty to remove.

* Section 171 of the Restatement (Second) of Torts reads:

Termination of Consent

Subject to the privileges of reasonable egress and re-

moval of things, the actor’s privilege to enter land

created by consent of the possessor is terminated by

(a) the doing of any act, or the happening of any

event, or the lapse of any specified period of time by

which the consent is restricted, or

(b) a revocation of the possessor’s consent, of

which the actor knows or has reason to know, or

(c) a transfer or other termination of the posses-

sor’s possessory interest in the land.

App. 33

which they inspire or participate in, even though

performed in the name of” the corporation. Jd. at 520.

In their brief, the appellees’ only comment in

regard to the Metromedia decision is contained in a

footnote in their brief that reads:

Thus a compelling distinction between

this case and Metromedia ... is that in

Metromedia, the defendant continued opera-

tions at the leased premises after the expira-

tion of the lease. It was an ejectment action,

similar to what ARE filed against Intracel

Corporation in District Court. “Abandon-

ment” of the premises was not an issue in

Metromedia.

Although the precise claim in Metromedia was

for ejectment, that fact does not detract from the

viability of the statement in Metromedia that refusal

to vacate premises after the term of the sub-sublease

expired resulted in the sub-sublessees having com-

mitted the tort of trespass. That holding was in

complete accord with the provision set forth in Re-

statement (Second) of Torts, Section 158(b)(2).

It is true, as appellees point out, that Metrome-

dia involved a tenant failing to leave after the term of

the lease expired, whereas the case at hand is one

where the tenant left but in doing so abandoned

property on the formerly leased premises. The Re-

statement (Second) of Torts, Sections 158(b) and (c)

provide that a tenant is liable in tort if, after the term

of the lease expires, the tenant either refuses to leave

App. 34

or abandons property that the tenant had a duty to

remove. Appellees suggest no reason why Section

158(c) would not be here applicable, and we think it is

applicable in light of the fact that the Court of Ap-

peals gave its implied imprimatur (in the Metromedia

case) to the legal principles set forth in that section of

the Restatement (Second) of Torts.

We can find no meaningful distinction between

the Metromedia case and the one sub judice. We

therefore hold that the motions judge erred in grant-

ing summary judgment in favor of the defendants on

the ground stated, i.e., that no cause of action for

trespass could succeed against the landlord and

therefore none of the defendants could be liable for

trespass. Nothing in the opinion should be read to

prevent the defendants, in the future, from moving

for summary judgment on the trespass count for any

other reason not mentioned in the global motion for

summary judgment.

IV.

Did the trial court err in granting summary

judgment in favor of appellant on the count

alleging waste?

In the global motion for summary judgment, the

appellees made the following argument, among

others, as to why all defendants were entitled to

summary judgment on the waste count: in Maryland

damages in an action for waste are controlled by

statute; the statute in question is section 14-102 of

App. 35

the Maryland Real Property Article of the Maryland

Code (2003 Repl. Vol.) and imposes liability for waste

only upon persons who are (or were) in lawful posses-

sion of the premises or who hold (or held) any posses-

sory interest in the nature of a tenancy; ARE had “no

evidence to suggest that any of the [d]efendants were

in ‘lawful possession’ of its leased premises, or had

any possessory interest in the nature of a tenancy” in

those leased premises. The foregoing argument is

based on the language of section 14-102, viz.:

Any mortgagor, including grantor under a

deed of trust given as security for payment of

a debt or the performance of an obligation,

any other person in possession of land, any

life tenant, tenant for years, tenant at will,

periodic tenant, tenant in common or joint

tenant, who, without express or implied au-

thorization, commits or permits waste, is li-

able for the actual damages suffered by the

property.

The just-quoted argument was one of those relied

upon by the trial judge when he granted summary

judgment in favor of all the defendants as to the

count alleging waste.

While ARE acknowledges in its brief that one of

the grounds argued by defendants below was that

“only the leaseholder, Intracel could be responsible for

waste,” ARE made no effort whatsoever in its opening

brief to show, or even attempt to show, that the

statutory cause of action for waste was applicable to

App. 36

anyone not alleged to be a possessor of real property

or who had a possessory interest in the property.

In their brief, the appellees asserted:

Appellant has never cited any case for

the proposition that there may be personal

liability for waste, in tort, on the part of

someone who did not have a direct posses-

sory interest in the property. Nothing in the

statute suggests that the action may be ex-

panded to include such individuals.

ARE, in its reply brief, again made no effort,

whatsoever, te rebut the argument that, in order to

prove waste, the plaintiff must show that it has facts

that demonstrate that the defendant(s) accused of

waste was (or were), at some time a “possessor” of the

property.

It is a fundamental principle of appellate litiga-

tion that if an appellant contends that the circuit

court committed error in granting summary judg-

ment, the appellant must present some argument to

prove that the motions judge was in fact wrong.

Absent such an argument, an appeal cannot succeed.

This basic appellate principle forms the basis for

Maryland Rule 8-504(a)(5) that requires that an

appellant’s brief contain “[a]Jrgument in support of the

party’s position.” See also Beck v. Mangels, 100 Md.

App. 144, 148 (1994) (failure to make an argument in

support of position, waives argument on appeal); see

also Harmon v. State Rds. Comm’n, 242 Md. 24, 30-31

(1966) (where appellant’s brief makes no reference to

App. 37

one of the issues raised in the trial court, the issue

was abandoned and therefore was not properly before

this Court).

For the foregoing reason we affirm the grant of

summary judgment as to the waste count.

V. DISMISSAL OF THE CLAIM FOR PUNITIVE

DAMAGES

As mentioned earlier, the motions judge dis-

missed ARE’s claim for punitive damages.

In Scott v. Jenkins, 345 Md. 21 (1997), the Court

sald:

We have lately, and at great length, dis-

cussed the necessary prerequisites, to a pu-

nitive damages award. Lest there be any

remaining doubt, in order to recover punitive

damages in any tort action in the State of

Maryland, facts sufficient to show actual

malice must be pleaded and proven by clear

and convincing evidence, and a specific de-

mand for the recovery of punitive damages

must be made before an award of such dam-

ages may be had.

Id. at 29.

Later in Scott, the Court of Appeals makes it

clear what must be plead in any tort action where

punitive damages are sought:

Since [Owens-Illinois v.] Zenobia, [325 Md.

420 (1992)], we have made it abundantly

App. 38

clear that “with respect to both intentional

and non-intentional torts, ... an award of

punitive damages must be based upon actual

malice, in the sense of conscious and deliber-

ate wrongdoing, evil or wrongful motive, in-

tent to injure, ill will, or fraud.” Montgomery

Ward v. Wilson, 339 Md. 701, 733 ... (1995)

(citing Ellerin v. Fairfax Savings, 337 Md.

216 (1995); Alexander & Alexander Inc. v. B.

Dixon Evander & Assocs., 336 Md. 635, 652

... (1994); Komornik v. Sparks, 331 Md. 720,

725 ... (1993); Adams v. Coates, 331 Md. 1,

13... (1993)).

V.

As we indicated earlier, the present con-

troversy is prompted by what Scott perceives

to be Jenkins’ failure to plead adequately his

claim for punitive damages, thereby depriv-

ing Scott of fair opportunity to respond to the

claim. Although the precise issue now raised

has never been addressed by this Court, we

have offered ample guidance in the past.

a.

Amicus for Petitioner Scott points out

that in Smith v. Gray Concrete and Pipe Co.,

[267 Md. 149 (1972)], we imposed a strict

pleading requirement in punitive or exem-

plary damages cases. We there said that

“No bald on conclusory allegations

of ‘wanton or reckless disregard for

App. 39

human life’ or language of similar

import, shall withstand attack on

grounds of insufficiency. It follows

from what we have said that far

greater specificity will be required

[when pleading punitive damages]

than that reflected by the ‘Appendix

of Forms’ accompanying the Mary-

land Rules.”

Smith, 267 Md. at 168 ... ; see also Nast v.

Lockett, 312 Md. 343, 370 ... (1988), over-

ruled on other grounds by Owens-Illinois Ze-

nobia, 325 Md. 420, 460 ... (1992).

Professors Lynch and Bourne of the Univer-

sity of Baltimore have echoed this sentiment,

stating that “({a] plaintiff seeking to recover

punitive damages must allege in detail in his

complaint the facts that indicate the enter-

tainment by the defendant of [an evil motive

or intent].” MODERN MARYLAND CIVIL PROCE-

DURE, supra § 6.5(b)(2) (emphasis added). Cf#

Summit Loans, Inc. v. Pecola, 265 Md. 43. .

(1972) (systematic threatening and vile tele-

phone calls to a debtor sufficient to support 4

punitive damages award). Our decisions sub-

sequent to Smith and Nast in no way suggest

a departure from that strict pleading re-

quirement.

Id. at 33-35.

ARE argues:

The facts alleged in the Second Amended

Complaint would readily allow a fact finder

to infer the defendants’ malicious state of

App. 40

mind. Defendants did not merely leave the

Premises in an untidy condition. Rather, as

ARE has alleged, certain [dlefendants left

extremely hazardous, chemical, biological,

and radiological materials strewn abut the

Premises, and diverted the funds necessary

to remove those materials to themselves.

ARE alleged that prior to Intracel’s re-

ceipt of the termination notice from ARE, de-

fendants had made a payment towards the

rental arrearage. Although this payment did

not cover the entire arrearage, defendants

became angry at ARE when ARE terminated

Intracel’s Lease. Defendants were also upset

at ARE for what they perceived to be ARE’s

unreasonable refusal to accept Intracel’s re-

quest to pay reduced rent or to give back a

portion of the Premises.

ARE further alleged in the Second Amended Com-

plaint that:

58. Despite their obligations under envi-

ronmental laws, and in retaliation for ARE’s

refusal to allow Intracel to remain at the

Premises on their terms, Defendants delib-

erately elected not to properly and legally

contain and safely remove all of the hazard-

ous waste and materials from the Premises

by April 30, 2001.

59. At the direction of Defendants and in

retaliation for ARE’s refusal to allow Intracel

to remain at the Premises on their terms, In-

tracel left the Premises in disarray, abandon-

ing large quantities of unwanted hazardous

App. 41

waste and contaminated materials, including

but not limited to biological agents, radioac-

tive materials and dangerous chemicals at

the Premises. ...

62. Some hazardous materials were strewn

about the Premises in a manner which dem-

onstrated that Defendants intended, in re-

taliation for ARE’s refusal to allow Intracel

to remain at the Premises on Defendants’

terms, and with actual malice and ill will, to

increase the amount of harm [to] ARE’s

property, as well as the risk and expense of

cleaning up the materials. ...

70. Defendants intentionally, and with ill

will and actual malice, and in retaliation for

ARE’s refusal to allow Intracel to remain at

the Premises on Defendants’ terms, left the

Premises in a state of disarray, disrepair and

full of chemical, biological and radioactive

hazards. Photographs accurately depicting

the condition of the Premises upon Intracel’s

departure are attached to this Second

Amended Complaint as Exhibit A.

The foregoing allegations satisfy the

pleading requirements for actual malice... .

(References to record extract omitted.)

The amended complaint looks in two directions

simultaneously as to why the defendants abandoned

materials on the leased premises and thereby com-

mitted a trespass, which is the only count with con-

tinued viability. A large part of the second amended

>? = ee

App. 42

complaint alleges what can be characterized as

“financial-control misdeeds” actions that came about

because the defendants failed to provide funding to

Intracel. In that regard, IAHC and Dublind Corp. and

their agents took various steps to protect their in-

vestment by keeping a tight rein on what monies

Intracel spent. For instance, according to the second-

amended complaint, the Board of Directors on April

12, 2001, deliberately took no action to “properly

remove ... hazardous waste” in order to keep the “$7

million received.” These “financial-control misdeeds”

were alleged to have taken place because Intracel was

insolvent, and IAHC and Dublind Corp. were In-

tracel’s “primary source of funding for operations”

and did not want to spend money to fund Intracel’s

contractual obligation to clean up the premises.

Financial motives of this sort for not spending money

to clean up the leased premises plainly do not show

“actual malice” and thus do not support an award of

punitive actions. Other portions of the second-

amended complaint allege that property was aban-

doned by “[dJjefendants” not because the defendants

simply did not want to spend money but (purportedly)

in retaliation “for ARE’s refusal to allow Intracel to

remain at the premises.” As mentioned earlier, when

considering a motion to dismiss for failure to state a

cause of action, ambiguities or uncertainties must be

construed against the pleader. Alleco, supra, 340 Md.

at 193. This rule is applicable here given the very

strict requirements Maryland imposes when a plaintiff

attempts to plead the right to punitive damages. Due

to its internal inconsistency as to motive, appellant’s

App. 43

second-amended complaint is too ambiguous to meet

those strict specificity requirements.

Additionally, in regard to the punitive damage

claim, the complaint is ambiguous as to which defen-

dant or defendants did what and for what motive. For

example, appellant says in its complaint that Intracel

“at the direction of [djefendants and with retaliatory

intent also caused other significant damage to the

premises, including intentionally ripping out interior

doors and doorframes.” Does this mean that Intracel’s

general counsel, Cox, ripped out interior doors? Does

it meant that Dublind Corp., by its agents, ripped out

doors? It is impossible to tell. The complaint in this

regard is so all-encompassing as to be meaningless.

The motions judge did not err, after giving ARE

three tries, in dismissing ARE’s claim for punitive

damages.

VI. FAILURE OF MOTIONS JUDGE TO GRANT

PARTIAL SUMMARY JUDGMENT ON THE

TRESPASS COUNT AS AGAINST CERTAIN

DEFENDANTS

Appellant claims that the motions judge erred in

failing to grant partial summary judgment as to

liability for trespass against Defendants Hanna,

Swindle, Nardin, Lindsay, and Dubroff. This conten-

tion will not detain us long. As pointed out recently

by this Court in Mathis v. Hargrove, 166 Md. App.

286, 304-05 (2005), with an exception not here appli-

cable, “no party is entitled to summary judgment as a

App. 44

matter of law,” even if the motions judge finds no

uncontradicted material facts. Therefore, the motions

judge did not err when he denied ARE’s motion.

VII.

Appellees filed a motion to dismiss this appeal

due to ARE’s failure to supply certain required mate-

rial in an appendix to its brief. We shall deny the

motion because the deficiency has now been remedied

and appellees have demonstrated no prejudice. See

Burdette v. LaScola, 40 Md. App. 720, 736 (1978).

JUDGMENT IN FAVOR OF AP-

PELLEES AS TO THE TRESPASS

COUNT REVERSED; ALL OTHER

JUDGMENTS AFFIRMED; COSTS

TO BE PAID SEVENTY-FIVE

PERCENT BY APPELLANT AND

TWENTY-FIVE PERCENT BY AP-

PELLEES.

App. 45

IN THE CIRCUIT COURT

FOR MONTGOMERY COUNTY

ARE Acquisitions, LLC

Plaintiff

v.

Michael J. Hanna, e al.

Defendants

* * +* * * * * *€ KF * KF KF FF * KF KH

No. 236630

(Entered Jul. 27, 2004)

&* ef &# #% @&@ & @

ORDER GRANTING IN PART AND DENYING

IN PART THE MOTIONS OF DEFENDANTS

MICHAEL HANNA, JR., PETER NARDIN

RICHARD COX, JONATHAN SWINDLE,

CHARLES DUBROFF, CHARLES LINDSAY.

DAVID FOX, INTRACEL ACQUISITION

HOLDING CO., LLC, AND DUBLIND PARTNERS

INC. TO DISMISS AND/OR STRIKE THE

PLAINTIFF’S SECOND AMENDED COMPLAINT

Upon consideration of the Motions of Defendants

Michael Hanna, Jr., Peter Nardin, Richard Cox,

Jonathan Swindle, Charles Dubroff, Charles Lindsay,

David Fox, and Intracel Acquisition Holding Co., LLC

(“IAHC”) (Docket number 235) and of Dublind Part-

ners, Inc. (““Dublind”) (Docket number 249) To Dis-

miss and/or Strike the Second Amended Complaint,

and upon consideration of Plaintiff’s responses and

oppositions thereto, and for the reasons given by the

Court at the hearing on July 19, 2004, it is this

22 day of July , 2004 ORDERED, ADJUDGED

AND DECREED THAT:

App. 46

The said MOTIONS are hereby GRANTED IN

PART AND DENIED IN PART as follows:

1. The Motions to Dismiss Count I of the Second

Amended Complaint (Trespass — All Defendants) are

DENIED;

2. The Motions to Dismiss Count II of the

Second Amended Complaint (Waste — All Defendants)

are DENIED;

3. The Motions to Dismiss Count III of the Sec-

ond Amended Complaint (Negligence — All Defendants)

are GRANTED, WITHOUT LEAVE TO AMEND;

4. The Motions to Dismiss Count IV of the

Second Amended Complaint (Tortious Interference

with Contract — Defendants IAHC and Dublind) are

GRANTED, WITHOUT LEAVE TO AMEND;

5. The Motions to Dismiss Count VI of the

Second Amended Complaint’ (Tortious Interference

with Prospective Economic Relations — Defendants

Dublind, IAHC, Hanna, Dubroff, Lindsay, Nardin and

Fox) are GRANTED, WITHOUT LEAVE TO AMEND;

6. The Motions to Dismiss Count VII of the

Second Amended Complaint (Alter Ego Liability —

Defendant [IAHC) are GRANTED, WITHOUT LEAVE

TO AMEND;

" The Second Amended Complaint does not contain a Count

V.

App. 47

7. The Motions to Dismiss Count VIII of the

Second Amended Complaint (Aiding and Abetting

Trespass — All Defendants) are DENIED;

& The Motions to Dismiss Count IX of the

Second Amended Complaint (Aiding and Abetting

Waste — All Defendants) are DENIED;

9. The Motions to Dismiss Count X of the

Second Amended Complaint (Aiding and Abetting

Negligence — All Defendants) are GRANTED, WITH-

OUT LEAVE TO AMEND;

10. The Motions to Dismiss Count XI of the

Second Amended Complaint (Respondeat Superior

Liability -— Defendant Dublind) are GRANTED,

WITHOUT LEAVE TO AMEND;

11. The Motions to Dismiss Count XII of the

Second Amended Complaint (Agency Liability -

Defendant Dublind) are GRANTED, WITHOUT

LEAVE TO AMEND;

12. The Motions to Dismiss Count XIII of the

Second Amended Complaint (Fraud — Defendants

Hanna, Swindle, Nardin, Lindsay, Dubroff, LAHC and

Dublind) are GRANTED, WITHOUT LEAVE TO

AMEND;

13. The Motions to Dismiss all of Plaintiff’s

claims for Punitive Damages are GRANTED, WITH-

OUT LEAVE TO AMEND.

App. 48

SO ORDERED:

/s/ Joseph A. Dugan, Jr.

Judge, Circuit Court for

Montgomery County

ce: Thomas J. Minton, Esq.

Goldman & Minton, P.C.

207 E. Redwood Street, Suite 400

Baltimore, Maryland 21202

Attorneys for All Defendants

Albert D. Brault, Esq.

James M. Brault, Esq.

Brault, Graham, Scott & Brault

101 South Washington Street

Rockville, Maryland 20850

Attorneys for Defendant Dubroff

Charles S. Hirsch, Esq.

Robert A. Scott, Esq.

Ballard Spahr Andrews & Ingersoll, LLP

300 East Lombard Street

18th Floor

Baltimore, Maryland 21202

Attorneys for Plaintiff ARE Acquisitions, LLC

App. 49

MICHAEL HANNA, JR. : IN THE

et al. : COURT OF APPEALS

‘ OF MARYLAND

v. . Petition Docket No. 400

September Term, 2006

: (No. 1502, Sept. Term,

ARE ACQUISITIONS, =: 2004, Court of

LLC : §pecial Appeals)

ORDER

Upon consideration of the petition for a writ of

certiorari to the Court of Special Appeals, the condi-

tional cross petition and the answer filed thereto, in

the above entitled case, it is this 6th day of December,

2006

ORDERED, by the Court of Appeals of Maryland,

that the petition be, and it is hereby, granted, and a

writ of certiorari to the Court of Special Appeals shall

issue; and it is further

ORDERED, that the conditional cross-petition

be, and it is hereby denied; and it is further

ORDERED, that said case shall be transferred to

the regular docket as No. 87, September Term, 2006;

and it is further

ORDERED, that counsel shall file briefs and

printed record extract in accordance with Md. Rules

8-501 and 8-502, petitioner’s brief and record extract

to be filed on or before January 5, 2007; respondent’s

App. 50

brief to be filed on or before February 5, 2007; and it

is further

ORDERED, that this case shall be set for argu-

ment during the March session of Court.

/s/ Robert M. Bell

Chief Judge

App. 51

MICHAEL HANNA, JR., : IN THE

et al. > COURT OF APPEALS

‘ OF MARYLAND

Vv. - Petition Docket No. 400

. September Term, 2006

> (No. 1502, Sept. Term,

ARE ACQUISITIONS, : 2004, Court of

LLC : Special Appeals)

WRIT OF CERTIORARI

STATE OF MARYLAND, to wit:

TO THE HONORABLE THE JUDGES OF THE

COURT OF SPECIAL APPEALS OF MARYLAND:

WHEREAS, ARE ACQUISITIONS, LLC. v.

MICHAEL HANNA, JR., et al., No. 1502, September

Term, 2004 was pending before your Court and the

Court of Appeals is willing that the record and pro-

ceedings therein be certified to it.

YOU ARE HEREBY COMMANDED TO

HAVE THE RECORD TRANSMITTED TO THE

COURT OF APPEALS OF MARYLAND ON OR

BEFORE December 19, 2006, together with this

writ, for the said Court to proceed thereon as justice

may require.

WITNESS the Chief Judge of the Court of Ap-

peals of Maryland this 6th day of December, 2006.

App. 52

/s/ Alexander L. Cummings

Clerk

Court of Appeals of Maryland

App. 53

MICHAEL HANNA, JR., * IN THE

veins - COURT OF APPEALS

* OF MARYLAND

_ Petition Docket No. 400

” a September Term, 2006

+ (No. 1502, Sept. Term,

+ 2004, Court of Special

ARE ACQUISITIONS, LLC: Appeals)

ORDER

The court having considered the motion for

reconsideration of the conditional cross-petition filed

in the above entitled case, it is

ORDERED, by the Court of Appeals of Maryland,

that the motion for reconsideration be, and it is

hereby, denied.

/s/ Irma S. Raker

Judge

DATE September 27, 2007

App. 54

42 U.S.C.A. § 6901. Congressional findings

* * -

(b) Environment and health

The Congress finds with respect to the environment

and health, that —

(1) although land is too valuable a national re-

source to be needlessly polluted by discarded ma-

terials, most solid waste is disposed of on land in

open dumps and sanitary landfills;

(2) disposal of solid waste and hazardous waste

in or on the land without careful planning and

management can present a danger to human

health and the environment;

(3) as a result of the Clean Air Act [42 U.S.C.A.

§ 7401 et seq.], the Water Pollution Control Act

[33 U.S.C.A. § 1251 et seq.], and other Federal

and State laws respecting public health and the

environment, greater amounts of solid waste (in

the form of sludge and other pollution treatment

residues) have been created. Similarly, inadequate

and environmentally unsound practices for the

disposal or use of solid waste have created greater

amounts of air and water pollution and other

problems for the environment and for health;

(4) open dumping is particularly harmful to

health, contaminates drinking water from under-

ground and surface supplies, and pollutes the air

and the land;

App. 55

(5) the placement of inadequate controls on

hazardous waste management will result in sub-

stantial risks to human health and the environ-

ment;

(6) if hazardous waste management is improp-

erly performed in the first instance, corrective ac-

tion is likely to be expensive, complex, and time

consuming;

(7) certain classes of land disposal facilities are

not capable of assuring long-term containment of

certain hazardous wastes, and to avoid substantial

risk to human health and the environment, reli-

ance on land disposal should be minimized or

eliminated, and land disposal, particularly landfill

and surface impoundment, should be the least fa-

vored method for managing hazardous wastes; and

(8) alternatives to existing methods of land dis-

posal must be developed since many of the cities

in the United States will be running out of suit-

able solid waste disposal sites within five years

unless immediate action is taken.

* * *

App. 56

42 U.S.C.A. § 6902. Objectives and national policy

(a) Objectives

The objectives of this chapter are to promote the

protection of health and the environment and to

conserve valuable material and energy resources by —

* * *

(4) assuring that hazardous waste management

practices are conducted in a manner which pro-

tects human health and the environment;

(5) requiring that hazardous waste be properly

managed in the first instance thereby reducing

the need for corrective action at a future date;

So * *

(b) National policy

The Congress hereby declares it to be the national

policy of the United States that, wherever feasible,

the generation of hazardous waste is to be reduced or

eliminated as expeditiously as possible. Waste that is

nevertheless generated should be treated, stored, or

disposed of so as to minimize the present and future

threat to human health and the environment.

App. 57

42 U.S.C.A. § 6903. Definitions

As used in this chapter:

* * *

(5) The term “hazardous waste” means a solid

waste, or combination of solid wastes, which because

of its quantity, concentration, or physical, chemical,

or infectious characteristics may —

(A) cause, or significantly contribute to an in-

crease in mortality or an increase in serious irre-

versible, or incapacitating reversible, illness; or

(B) pose a substantial present or potential haz-

ard to human health or the environment when

improperly treated, stored, transported, or dis-

posed of, or otherwise managed.

* * *

(15) The term “person” means an individual,

trust, firm, joint stock company, corporation (including

a government corporation), partnership, association,

State, municipality, commission, political subdivision of

a State, or any interstate body and shall include each

department, agency, and instrumentality of the United

States.

* * *

(27) The term “solid waste” means any garbage,

refuse, sludge from a waste treatment plant, water

supply treatment plant, or air pollution control facility

and other discarded material, including solid, liquid,

semisolid, or contained gaseous material resulting

from industrial, commercial, mining, and agricultural

App. 58

operations, and from community activities, but does

not include solid or dissolved material in domestic

sewage, or solid or dissolved materials in irrigation

return flows or industrial discharges which are point

sources subject to permits under section 1342 of Title

33, or source, special nuclear, or byproduct material

as defined by the Atomic Energy Act of 1954, as

amended (68 Stat. 923) [42 U.S.C.A. § 2011 et seq.].

* * *

App. 59

42 U.S.C.A. § 6922. Standards applicable to

generators of hazardous waste

(a) In general

Not later than eighteen months after October 21,

1976, and after notice and opportunity for public

hearings and after consultation with appropriate

Federal and State agencies, the Administrator shall

promulgate regulations establishing such standards,

applicable to generators of hazardous waste identified

or listed under this subchapter, as may be necessary

to protect human health and the environment. Such

standards shall establish requirements respecting —

(1) recordkeeping practices that accurately

identify the quantities of such hazardous waste

generated, the constituents thereof which are

significant in quantity or in potential harm to

human health or the environment, and the dispo-

sition of such wastes;

(2) labeling practices for any containers used

for the storage, transport, or disposal of such

hazardous waste such as will identify accurately

such waste;

(3) use of appropriate containers for such haz-

ardous waste;

(4) furnishing of information on the general

chemical composition of such hazardous waste to

persons transporting, treating, storing, or dispos-

*ng of such wastes;

(5) use of a manifest system and any other rea-

sonable means necessary to assure that all such

App. 60

hazardous waste generated is designated for

treatment, storage, or disposal in, and arrives at,

treatment, storage, or disposal facilities (other

than facilities on the premises where the waste is

generated) for which a permit has been issued as

provided in this subchapter, or pursuant to title I

of the Marine Protection, Research, and Sanctu-

aries Act (86 Stat. 1052) [83 U.S.C.A. § 1411 et

seq.]; and

(6) submission of reports to the Administrator

(or the State agency in any case in which such

agency carries out a permit program pursuant to

this subchapter) at least once every two years,

setting out —

(A) the quantities and nature of hazardous

waste identified or listed under this sub-

chapter that he has generated during the

year;

(B) the disposition of all hazardous waste

reported under subparagraph (A);

(C) the efforts undertaken during the year

to reduce the volume and toxicity of waste

generated; and

(D) the changes in volume and toxicity of

waste actually achieved during the year in

question in comparison with previous years,

to the extent such information is available

for years prior to November 8, 1984.

** * *

Be

App. 61

42 U.S.C.A. § 6928. Federal enforcement

* * *

(d) Criminal penalties

Any person who —

(1) knowingly transports or causes to be trans-

ported any hazardous waste identified or listed

under this subchapter to a facility which does not

have a permit under this subchapter, or pursuant

to title I of the Marine Protection, Research, and

Sanctuaries Act (86 Stat. 1052) (33 U.S.C.A.

§ 1411 et seq.],

(2) knowingly treats, stores, or disposes of any

hazardous waste identified or listed under this

subchapter —

(A) without a permit under this subchapter

or pursuant to title I of the Marine Protec-

tion, Research, and Sanctuaries Act (86 Stat.

1052) (33 U.S.C.A. § 1411 et seq.J; or

(B) in knowing violation of any material

condition or requirement of such permit; or

(C) in knowing violation of any material

condition or requirement of any applicable

interim status regulations or standards;

(3) knowingly omits material information or

makes any false material statement or represen-

tation in any application, label, manifest, record,

report, permit, or other document filed, main-

fained, or used for purposes of compliance with

regulations promulgated by the Administrator (or

App. 62

by a State in the case of an authorized State pro-

gram) under this subchapter;

(4) knowingly generates, stores, treats, trans-

ports, disposes of, exports, or otherwise handles

any hazardous waste or any used oil not identi-

fied or listed as a hazardous waste under this

subchapter (whether such activity took place be-

fore or takes place after November 8, 1984) and

who knowingly destroys, alters, conceals, or fails

to file any record, application, manifest, report,

or other document required to be maintained or

filed for purposes of compliance with regulations

promulgated by the Administrator (or by a State

in the case of an authorized State program) un-

der this subchapter;

(5) knowingly transports without a manifest, or

causes to be transported without a manifest, any

hazardous waste or any used oil not identified or

listed as a hazardous waste under this subchap-

ter required by regulations promulgated under

this subchapter (or by a State in the case of a

State program authorized under this subchapter)

to be accompanied by a manifest;

(6) knowingly exports a hazardous waste iden-

tified or listed under this subchapter (A) without

the consent of the receiving country or, (B) where

there exists an international agreement between

the United States and the government of the re-

ceiving country establishing notice, export, and

enforcement procedures for the transportation,

treatment, storage, and disposal of hazardous

wastes, in a manner which is not in conformance

with such agreement; or

App. 63

(7) knowingly stores, treats, transports, or

causes to be transported, disposes of, or other-

wise handles any used oil not identified or listed

as a hazardous waste under this subchapter —

(A) in knowing violation of any material

condition or requirement of a permit under

this subchapter; or

(B) in knowing violation of any material

condition or requirement of any applicable

regulations or standards under this chapter;

shall, upon nee wy to a fine of

not more than $50,00 each day of viola-

tion, or imprisonment not to exceed two

years (five years in the case of a violation of

paragraph (1) or (2)), or both. If the convic-

tion is for a violation committed after a first

conviction of such person under this para-

graph, the maximum punishment under the

respective paragraph shall be doubled with

respect to both fine and imprisonment.

(e) Knowing endangerment

Any person who knowingly transports, treats, stores,

disposes of, or exports any hazardous waste identified

or listed under this subchapter or used oil not identi-

fied or listed as a hazardous waste under this sub-

chapter in violation of paragraph (1), (2), (3), (4), (5),

(6), or (7) of subsection (d) of this section who knows

at that time that he thereby places another person in

imminent danger of death or serious bodily injury,

shall, upon conviction, be subject to a fine of not more

than $250,000 or imprisonment for not more than

App. 64

fifteen years, or both. A defendant that is an organi-

zation shall, upon conviction of violating this subsec-

tion, be subject to a fine of not more than $1,000,000.

* * *

App. 65

42 U.S.C.A. § 6972. Citizen suits

(a) In general

Except as provided in subsection (b) or (c) of this

section, any person may commence a civil action on

his own behalf —

(1)(A) against any person (including (a) the

United States, and (b) any other governmental

instrumentality or agency, to the extent permit-

ted by the eleventh amendment to the Constitu-

tion) who is alleged to be in violation of any

permit, standard, regulation, condition, require-

ment, prohibition, or order which has become ef-

fective pursuant to this chapter; or

(B) against any person, including the United

States and any other governmental instrumen-

tality or agency, to the extent permitted by the

eleventh amendment to the Constitution, and in-

cluding any past or present generator, past or

present transporter, or past or present owner or

operator of a treatment, storage, or disposal facil-

ity, who has contributed or who is contributing to

the past or present handling, storage, treatment,

transportation, or disposal of any solid or haz-

ardous waste which may present an imminent

and substantial endangerment to health or the

environment; or

(2) against the Administrator where there is al-

leged a failure of the Administrator to perform

any act or duty under this chapter which is not

discretionary with the Administrator.

App. 66

Any action under paragraph (a)(1) of this subsection

shall be brought in the district court for the district in

which the alleged violation occurred or the alleged

endangerment may occur. Any action brought under

paragraph (a)(2) of this subsection may be brought in

the district court for the district in which the alleged

violation occurred or in the District Court of the

District of Columbia. The district court shall have

jurisdiction, without regard to the amount in contro-

versy or the citizenship of the parties, to enforce the

permit, standard, regulation, condition, requirement,

prohibition, or order, referred to in paragraph (1)(A),

to restrain any person who has contributed or who is

contributing to the past or present handling, storage,

treatment, transportation, or disposal of any solid or

hazardous waste referred to in paragraph (1)(B), to

order such person to take such other action as may be

necessary, or both, or to order the Administrator to

perform the act or duty referred to in paragraph (2),

as the case may be, and to apply any appropriate civil

penalties under section 6928(a) and (g) of this title.

* * *

App. 67

42 U.S.C.A. § 6973. Imminent hazard

(a) Authority of Administrator

Notwithstanding any other provision of this chapter,

upon receipt of evidence that the past or present

handling, storage, treatment, transportation or

disposal of any solid waste or hazardous waste may

present an imminent and substantial endangerment

to health or the environment, the Administrator may

bring suit on behalf of the United States in the ap-

propriate district court against any person (including

any past or present generator, past or present trans-

porter, or past or present owner or operator of a

treatment, storage, or disposal facility) who has

contributed or who is contributing to such handling,

storage. treatment, transportation or disposal to

restrain such person from such handling, storage,

treatment, transportation, or disposal, to order such

person to take such other action as may be necessary,

or both. A transporter shall not be deemed to have

contributed or to be contributing to such handling,

storage, treatment, or disposal taking place after

such solid waste or hazardous waste has left the

possession or control of such transporter if the trans-

portation of such waste was under a sole contrac-

tural’ arrangement arising from a published tariff

and acceptance for carriage by common carrier by

rail and such transporter has exercised due care in

the past or present handling, storage, treatment,

' So in original. Probably should be “contractual”.

App. 68

transportation and disposal of such waste. The Ad-

ministrator shall provide notice to the affected State

of any such suit. The Administrator may also, after

notice to the affected State, take other action under

this section including, but not limited to, issuing such

orders as may be necessary to protect public health

and the environment.

* * 4+

App. 69

40 C.F.R. § 261.2 Definition of solid waste.

(a1) A seclid waste is any discarded material

that is not excluded by § 261.4(a) or that is not ex-

cluded by variance granted under §§ 260.30 and

260.31.

(2) A discarded material is any material which

is:

(i) Abandoned, as explained in paragraph (b) of

this section; or

(ii) Recycled, as explained in paragraph (c) of

this section; or

(iii) Considered inherently waste-like, as ex-

plained in paragraph (d) of this section; or

(iv) A military munition identified as a solid

waste in 40 CFR 266.202.

(b) Materials are solid waste if they are aban-

doned by being:

(1) Disposed of; or

(2) Burned or incinerated; or

(3) Accumulated, stored, or treated (but not

recycled) before or in lieu of being abandoned

by being disposed of, burned, or incinerated.

* * *

App. 70

40 C.FE.R. § 261.4 Exclusions.

(a) Materials which are not solid wastes. The follow-

ing materials are not solid wastes for the purpose of

this Part:

* * *

(4) Source, special nuclear or by-product mate-

rial as defined by the Atomic Energy Act of 1954,

as amended, 42 U.S.C. 2011 et seq.

App. 71

40 C.F.R. § 262.34 Accumulation time.

(a) Except as provided in paragraphs (d), (e), and (f)

of this section, a generator may accumulate hazard-

ous waste on-site for 90 days or less without a permit

or without having interim status, provided that:

(1) The waste is placed:

(i) In containers and the generator complies

with the applicable requirements of subparts I,

AA, BB, and CC of 40 CFR part 265; and/or

(ii) In tanks and the generator complies with the

applicable requirements of subparts J, AA, BB, and

CC of 40 CFR part 265 except §§ 265.197(c) and

265.200; and/or

(iii) On drip pads and the generator complies

with subpart W of 40 CFR part 265 and main-

tains the following records at the facility:

(A) Adescription of procedures that will be

followed to ensure that all wastes are re-

moved from the drip pad and associated col-

lection system at least once every 90 days;

and

(B) Documentation of each waste removal,

including the quantity of waste removed

from the drip pad and the sump or collection

system and the date and time of removal;

and/or

(iv) In containment buildings and the generator

complies with subpart DD of 40 CFR part 265,

has placed its professional engineer certification

App. 72

that the building complies with the design stan-

dards specified in 40 CFR 265.1101 in the facil-

ity’s operating record no later than 60 days after

the date of initial operation of the unit. After

February 18, 1993, PE certification will be re-

quired prior to operation of the unit. The owner

or operator shall maintain the following records

at the facility:

(A) A written description of procedures to

ensure that each waste volume remains in

the unit for no more than 90 days, a written

description of the waste generation and

management practices for the facility show-

ing that they are consistent with respecting

the 90 day limit, and documentation that the

procedures are complied with; or

(B) Documentation that the unit is emptied

at least once every 90 days.

In addition, such a generator is exempt from all the

requirements in subparts G and H of 40 CFR part

265, except for §§ 265.111 and 265.114.

(2) The date upon which each period of accumu-

lation begins is clearly marked and visible for in-

spection on each container;

(3) While being accumulated on-site, each con-

tainer and tank is labeled or marked clearly with

the words, “Hazardous Waste”; and

(4) The generator complies with the require-

ments for owners or operators in Subparts C and

D in 40 CFR part 265, with § 265.16, and with 40

CFR 268.7(a)(5).

App. 73

(b) A generator who accumulates hazardous waste

for more than 90 days is an operator of a storage

facility and is subject to the requirements of 40 CFR

Parts 264 and 265 and the permit requirements of 40

CFR Part 270 unless he has been granted an exten-

sion to the 90-day period. Such extension may be

granted by EPA if hazardous wastes must remain on-

site for longer than 90 days due to unforeseen, tempo-

rary, and uncontrollable circumstances. An extension

of up to 30 days may be granted at the discretion of

the Regional Administrator on a case-by-case basis.

(c(1) A generator may accumulate as much as 55

gallons of hazardous waste or one quart of acutely

hazardous waste listed in § 261.33(e) in containers at

or near any point of generation where wastes initially

accumulate, which is under the control of the opera-

tor of the process generating the waste, without a

permit or interim status and without complying with

paragraph (a) of this section provided he:

(i) Complies with §§ 265.171, 265.172, and

265.173(a) of this chapter; and

(ii) Marks his containers either with the words

“Hazardous Waste” or with other words that

identify the contents of the containers.

(2) A generator who accumulates either hazard-

ous waste or acutely hazardous waste listed in

§ 261.33(e) in excess of the amounts listed in

paragraph (c)(1) of this section at or near any

point of generation must, with respect to that

amount of excess waste, comply within three

days with paragraph (a) of this section or other

App. 74

applicabie provisions of this chapter. During the

three day period the generator must continue to

comply with paragraphs (c)(1)(i)-(ii) of this sec-

tion. The generator must mark the container

holding the excess accumulation of hazardous

waste with the date the excess amount began ac-

cumulating.

(d) A generator who generates greater than 100

kilograms but less than 1000 kilograms of hazardous

waste in a calendar month may accumulate hazard-

ous waste on-site for 180 days or less without a

permit or without having interim status provided

that:

(1) The quantity of waste accumulated on-site

never exceeds 6000 kilograms;

(2) The generator complies with the require-

ments of subpart I of part 265 of this chapter, ex-

cept for §§ 265.176 and 265.178;

(3) The generator complies with the require-

ments of § 265.201 in subpart J of part 265;

(4) The generator complies with the require-

ments of paragraphs (a)(2) and (a)(3) of this sec-

tion, the requirements of subpart C of part 265,

the requirements of 40 CFR 268.7(a)(5); and

(5) The generator complies with the following

requirements:

(i) At all times there must be at least one em-

ployee either on the premises or on call (i.e.,

available to respond to an emergency by reaching

the facility within a short period of time) with the

App. 75

responsibility for coordinating all emergency re-

sponse measures specified in paragraph (d\(3\iv)

of this section. This employee is the emergency

coordinator.

(ii) The generator must post the following in-

formation next to the telephone:

(A) The name and telephone number of the

emergency coordinator;

(B) Location of fire extinguishers and spill

control material, and, if present, fire alarm;

and

(C) The telephone number of the fire de-

partment, unless the facility has a direct

alarm.

Gii) The generator must ensure that all employ-

ees are thoroughly familiar with proper waste

handling and emergency procedures, relevant to

their responsibilities during normal fac*‘ity op-

erations and emergencies;

(iv) The emergency coordinator or his designee

must respond to any emergencies that arise. The

applicable responses are as follows:

(A) In the event of a fire, call the fire de-

partment or attempt to extinguish it using a

fire extinguisher;

(B) In the event of a spill, contain the flow

of hazardous waste to the extent possible,

and as soon as is practicable, clean up the

hazardous waste and any contaminated ma-

terials or soil;

App. 76

(C) In the event of a fire, explosion, or other

release which could threaten human health

outside the facility or when the generator

has knowledge that a spill has reached sur-

face water, the generator must immediately

notify the National Response Center (using

their 24-hour toll free number 800/424-8802).

The report must include the following infor-

mation:

(1) The name, address, and U.S. EPA

Identification Number of the generator;

(2) Date, time, and type of incident

(e.g., spill or fire);

(3) Quantity and type of hazardous

waste involved in the incident;

(4) Extent of injuries, if any; and

(5) Estimated quantity and disposition

of recovered materials, if any.

(e) A generator who generates greater than 100

kilograms but less than 1000 kilograms of hazardous

waste in a calendar month and who must transport

his waste, or offer his waste for transportation, over a

distance of 200 miles or more for off-site treatment,

storage or disposal may accumulate hazardous waste

on-site for 270 days or less without a permit or with-

out having interim status provided that he complies

with the requirements of paragraph (d) of this sec-

tion.

(f) A generator who generates greater than 100

kilograms but less than 1000 kilograms of hazardous

App. 77

waste in a calendar month and who accumulates

hazardous waste in quantities exceeding 6000 kg or

accumulates hazardous waste for more than 180 days

(or for more than 270 days if he must transport his

waste, or offer his waste for transportation, over a

distance of 200 miles or more) is an operator of a

storage facility and is subject to the requirements of

40 CFR Parts 264 and 265 and the permit require-

ments of 40 CFR Part 270 unless he has been granted

an extension to the 180-day (or 270-day if applicable)

period. Such extension may be granted by EPA if

hazardous wastes must remain on-site for longer

than 180 days (or 270 days if applicable) due to

unforeseen, temporary, and uncontrollable circum-

stances. An extension of up to 30 days may be granted

at the discretion of the Regional Administrator on a

case-by-case basis.

* * *