Marcas, L.L.C v. Board of County Commissioners (817 F. Supp. 2d 692, 2011)

MEMORANDUM OPINION

WILLIAM CONNELLY, United States Magistrate Judge.

Plaintiff Marcas, L.L.C. (“Marcas”) brought this action against Defendant Board of County Commissioners of St. Mary’s County (“the County”) alleging violations of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, (“CERCLA”), 42 U.S.C. §§ 9601 et seq., the Solid Waste Disposal Act, 42 U.S.C. §§ 6901, et seq., (“SWDA”) as amended by the Resource Conservation and Recovery Act (“RCRA”), and various tort causes of action under Maryland law stemming from the releases of hazardous substances and other pollutants from a landfill operated by the County onto Marcas’ property. The parties consented to proceed before a United States Magistrate Judge for all further proceedings in the case and the entry of a final judgment. See Document No. 46. This case was subsequently referred to the undersigned. See Document No. 98. Pending and ready for resolution are the County’s Motion for Partial Summary Judgment (Document No. 68) and Marcas’ Motion for Partial Summary Judgment (Document No. 76). No hearing is deemed necessary and the Court now rules pursuant to Local Rule 105.6 (D.Md.2011).

BACKGROUND

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

The Marcas property is adjacent to St. Andrew’s Landfill (“St. Andrew’s Landfill” or “the Landfill”), which lies to the south and southwest of the Marcas property. The County “began purchasing land for St. Andrews Landfill in 1971 and completed land acquisition in 1984, for a total site area of approximately 270 acres. The Landfill includes four sanitary waste disposal cells (Cells 1^1) and one rubble disposal cell (Cell 5).” Id. ¶ 22; Answer ¶ 22. The County owns and operates the Landfill. The County discontinued waste disposal in Cells 1, 2 and 4 in November 1997 and discontinued waste disposal in Cell 3 in February 1999. In June 2001 the disposal of rubble was discontinued. Second Am. Compl. ¶ 25; Answer ¶ 25.

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

In June of 1996 representatives of Marcas and representatives of St. Mary’s County Department of Public Works & Transportation (“DPW & T”) met and discussed St. Andrew’s Landfill and the County’s remediation plan. Second Am. Compl. ¶ 11; Answer ¶ 11. Subsequent to this meeting, in November 1996, a related entity of Marcas, Porto Bello Development, Inc., applied to the County to have the Property rezoned as a Planned Unit Development (“PUD”), to be known as First Colony Planned Unit Development or First Colony PUD. Second Am. Compl. ¶ 12. Subject to certain terms and conditions, on October 27, 1997, the St. Mary’s County Planning Commission approved the application. Id. ¶ 12. The County approved the rezoning and creation of the First Colony PUD, by Ordinance Z98-0B, on June 9, 1998. Id. ¶ 13; Answer ¶ 13.

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

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

On July 23, 2001, GCI Environmental Services began the installation of nine (9) landfill gas monitoring probes around the perimeter of the St. Andrews Landfill property. The locations of the probes can be found [in] the “Environmental Monitoring Plan,” which was approved by the Maryland Department of the Environment (MDE) on July 3, 2000. On June 18, 2001, GCI Environmental Services requested the relocation of three probes and was subsequently approved by the MDE on July 20, 2001. On July 26, 2001, Mr. Steve Brown of GCI Environmental Services notified me that the installation of the nine probes were complete and reported the following preliminary sampling results as the percentage of gas below the Lower Explosive Limit (LEL): GW1, 100%; GW-2[,] 100%; GW-3, 8%; GW-4, 100%; GW-5, 0%; GW-6, 0%; GW-7, 0%; GW-8, 0% & GW-9, 100%. These sampling results were acquired directly after the probes were installed.

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

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

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

On July 26, 2001, Mr. Steve Brown of GCI Environmental Services notified this office that installation of the wells was complete and had the following results to report as percent Lower Explosive Limit (% LEL): GW-1,100%; GW-2, 100%; GW-3, 8%; GW-4, 100%; GW-50%; GW-6, 0%; GW-7, 0%; GW-8, 0% & GW-9,100%. The results were acquired directly after the wells were installed. I contacted your office on July 26, 2001 and left a message requesting you contact this office immediately. In accordance with 40 CFR 258.23(c)(2), a memorandum was placed in the operating record on July 26, 2001, which included the above mentioned results and steps taken to protect human health.

On July 27, 2001, we spoke regarding the findings and all regulatory requirements that must be fulfilled. In addition, Mr. Brown returned to re-sample the wells and the three buildings as identified in the above-mentioned plan. The following results were reported as % LEL: GW-1, 100%; GW-280%; GW-3, 16%; GW4, 16%; GW-5, 0%; GW-6, 0%; GW-7, 0%; GW-8, 100%; GW-9, 0%; and three buildings, 0%. As you can see, the results remained the same for GW-1, 5, 6 & 7, increased for GW-3 & 8 and decreased for GW-2, 4 & 9. Upon review of the data, I discussed with Mr. Brown any circumstances causing such drastic differences, such as proper calibration of the instrument, past and present weather conditions and sampling techniques.

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

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

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

The following summarizes the meeting held at the Maryland Department of the Environment (MDE) on 9/6/01 with Ed Carlson and Brian Coblentz from the MDE, Les Shaw and William Chica from the Maryland Environmental Service (MES) and Richard Tarr from St. Mary’s County. The recent installation (July 2001) of nine (9) landfill gas monitoring wells around the perimeter of the St. Andrews Landfill and subsequent sampling of same prompted a discussion with the above mentioned in order to further evaluate the current findings and outline a plan for the near future. The following items were agreed upon by all parties based on the discussion: 1. Continue to monitor the nine landfill gas monitoring wells for LEL as required by Federal and State Regulations on a monthly basis to determine if the recently placed landfill cover and passive landfill gas extraction system has any effect on subsurface migration of landfill gas originating from Cells 1, 2 & 4. This monitoring will continue for 6 months and a follow-up meeting will be conducted with MDE to discuss such findings. 2. Collect one air sample from gas wells 8 & 9 to determine chemical makeup which resulted in elevated LEL readings. This sampling will be conducted during the upcoming groundwater sampling event or during the subsequent quarterly gas well sampling event to be conducted by GCI Environmental, Inc.

Lastly, MDE will include recommendations above in their correspondence to St. Mary’s upon review of the September — October 01 Sampling and Analysis Report. St. Mary’s County is requesting a meeting with the above parties to discuss the six months of data collection to further evaluate future monitoring/remedial action initiatives.

Id., Ex. 6 (E-mail from Tarr to Chica of 9/7/01).

By the middle of 2002 there was some concern about gas migrating from the Landfill to properties nearby. George A. Erichsen, Director, St. Mary’s County DPW & T, proposed a solution to this potential problem in a May 23, 2002 letter to Edward M. Dexter of MDE.

As a follow up to our prior correspondences, this Department is requesting formal approval for the usage of mini-blowers at each of the landfill gas vent flares located on Cells 1 through 5 (St. Andrews Landfill — Area B). This particular active gas recovery system alternative is not intended to replace the previously approved active gas recovery system, but rather a supplemental alternative, at a significantly reduced cost for this particular rural application.

The mini-blower specifications appear to be compatible with the existing gas vent flares from a construction, operational and performance standpoint. In addition, the mini-blowers will facilitate the extraction of landfill gas from the landfill at a more uniform rate, thus minimizing the potential for offsite landfill gas migration----

We trust you are in agreement with the above and look forward to your positive response. We appreciate your ongoing and comprehensive support of our solid waste issues. In the interim, if you should have any questions, please do not hesitate to contact either myself, or Mr. Tarr.

Id., Ex. 7 at 2 (Letter from Erichsen to Dexter of 5/23/02).

Two weeks later Mr. Dexter approved Mr. Erichsen’s request.

This is in reference to your request for formal approval for the usage of mini-blowers at each of the landfill gas vent flares located on Cells 1 through 5 at the St. Andrews Landfill located in California, St. Mary’s County. We note that the Air and Radiation Management Administration (ARMA) has determined that this will not require a.change to their permit. Therefore, this request is approved with the following comments:

• Your evaluation that the mini-blower specifications appear to be compatible with the existing gas vent flares from a construction, operational, and performance standpoint is noted. However, on page 1 of 4 on CF-5 Vent Flare specifications, it is indicated that the flares combust flammable gases at low ambient pressure without need for blowers or external power. Please ensure that the blowers do not exceed the maximum flow rate of the flares. If the flares cannot be maintained in an acceptably functional state, larger flares or another acceptable engineering solution will be required.

• We acknowledge that the blowers will facilitate the extraction of landfill gas at a higher and more uniform rate. This will help to reduce the offsite migration of landfill gas, and is an approved remedial measure.

Please notify us when the blowers are to be installed.

Id., Ex. 8 (Letter from Dexter to Erichsen of 6/6/02).

On December 31, 2002 Janet A. Parks of St. Mary’s County, Department of Facilities Management, sent the following letter to Caz Szlendak, Marcas L.L.C., stating in pertinent part,

The subsurface testing and monitoring plan for the St. Andrew’s Landfill has been submitted and approved by the State of Maryland. A copy of the plan in enclosed for your use.

I have also enclosed a copy of the right of entry document I previously sent you for review. Please sign and have notarized the right of entry agreement and return to this office.

Id., Ex. 65 at 2 (Letter from Parks to Szlendak of 12/31/02).

On May 30, 2003 Patrick Kelly, a geologist with the Maryland Environmental Service (“MES”), submitted to Mr. Tarr a Landfill Gas Management Plan for St. Andrew’s Landfill. The purpose of MES’s plan “is to augment the existing environmental monitoring plan for the St. Andrew’s landfill developed in February 2002, and address landfill gas management alternatives.” Id., Ex. 9 at 4. As part of its proposed management plan, MES intended to have a geologic study performed to determine the extent of landfill gas migrating off the site. If the study shows off-site migration is occurring, MES listed the additional steps which would need to be taken to quantify and mitigate the gas migration.

If off-site migration of landfill gas proves to be a continuing problem after the corrective action efforts of cell capping and additional active gas removal flares, the addition of an active collection system may be considered between the landfill cells and the property line to prevent off-site migration of landfill gases from the cells. This would require the delineation of the gas plume for placement of extraction gas wells to intercept the migration of gas from the landfill. Vacuum levels will have to be determined to achieve an optimum gas removal rate.

Id., Ex. 9 at 5.

On July 21, 2003, Mr. Szlendak, on behalf of Marcas, signed and had notarized the Right-of-Entry Agreement. See id., Ex. 25 at 2-3; Pl.’s Mem., Ex. 65 at 3-4. On September 11, 2003 Mr. Tarr addressed a letter to Mr. Dexter and enclosed a copy of MES’s Landfill Gas Management Plan for St. Andrew’s Landfill. Mr. Tarr also made a reference to the Right-of-Entry Agreements, stating in pertinent part,

This Department recently acquired the majority of necessary Right-of-Entry Agreements to perform off-site landfill gas sampling on neighboring properties adjacent to the St. Andrews Landfill. A number of adjacent landowners have been nonresponsive to the request, and we feel it is prudent to move forward with the field work in a timely fashion. Field work is tentatively scheduled for October 2003 and we invite your staff to be present. Based on results of the field work, a meeting will be requested with your Department to discuss the findings and determine the appropriate plan of action; and the Management Plan will be revised accordingly, as may be required.

Id., Ex. 9 at 2 (Letter from Tarr to Dexter of 9/11/03).

Several months later, on January 15, 2004, Mr. Tarr sent another letter to Mr. Dexter. The letter concerned, among other things, the Landfill Gas Investigation at St. Andrew’s Landfill.

As you are aware, field work for the St. Andrews landfill gas investigation beyond the property boundary began on November 13, 2003 and the majority of the work around the eastern portion of the property was completed at that time. The results from the work were reported to Mr. Ed Carlson on November 14, 2003 and he was satisfied with same. Field work to complete the investigation began January 14, 2004 and was complete this date. Please find attached a copy of the preliminary investigative results, a final report will be provided by GCI Environmental Services in the near future.

As depicted, landfill gas has migrated beyond the property boundary along the eastern boundary of the St. Andrews Landfill, Cells 1, 2 and 4. In addition, landfill gas was detected (Sample ID# 27) along the northern portion of the County property near Gas Well # 8 at the property boundary. As a result, this Department sampled the crawl spaces of the nearest two (2) residences and no landfill gas was present. This Department has instructed GCI Environmental Services to return to the site next week to expand the investigation, namely around the residence adjacent to the positive reading. Also, Gas Wells 8 & 9 were sampled to determine if the combustible gas present is methane and/or volatile organic compound(s). Once the results are available, a copy will be forwarded to your Department.

Consistent with our meeting held on November 4, 2003, the Maryland Environmental Service (MES) will revise the existing landfill gas management plan based on this investigation and include the recommended remedial action within 30 days. This revised plan is intended to replace the plan previously submitted to your Department on September 11, 2003. Once the gas eontrol/remediation approach has been selected by the County, a public information meeting will be scheduled to inform the community of the landfill gas situation and the selected control measures.

Id., Ex. 24 at 2 (Letter from Tarr to Dexter of 1/15/24).

Less than 10 days later, on January 23, 2004, George Erichsen, Director, St. Mary’s DPW & T, addressed a letter to Mr. Szlendak, Marcas L.L.C., stating,

This Department annually conducts environmental sampling and analysis at the St. Andrews Sanitary Landfill as per Federal and State requirements. On January 22, 2004, the Department concluded its annual sampling event, which included an investigation to determine the possibility of landfill gas migrating from the landfill and the extent of same.

Based on preliminary findings on the County property and samples taken on [Tax Map 34 Parcel 455 the Marcas’ Property], landfill gas has migrated approximately 200' beyond the County property boundary. The samples with positive results are not uniform around the landfill and suggest isolated areas will require some sort of remedial action in order to prevent any further landfill gas migration from occurring in the future.

We continue to work with the Maryland Department of the Environment; and if a remedial action is implemented, you will be notified accordingly. Lastly, we may need to perform additional sampling beyond our property boundary in accordance with the provisions of the Right-of-Entry Agreement forwarded to you previously by the County’s Real Property Manager, Joyce R. Malone. If a remedial action is required, the provisions in the Right-of-Entry Agreement may need to be revisited accordingly.

We will continue with the annual environmental sampling and analysis as required to ensure the health and safety of the community and we apologize for any inconvenience the testing may have caused. We thank you for your continued cooperation.

Id., Ex. 26 at 2 (Letter from Erichsen to Szlendak of 1/23/04); Ex. 46 at 2 (Letter from Erichsen to Szlendak of .1/23/04).

Mr. Szlendak claims he did not receive the January 23, 2004 letter from Mr. Erichsen. Second Am. Compl. ¶ 64.

On April 30, 2004 GCI submitted a written report to Mr. Tarr about the Soil Gas Survey conducted November 13-14, 2003, January 14-15, 2004 and January 22, 2004 with regard to St. Andrew’s Landfill. GCI summarized the data stating in pertinent part,

The highest landfill gas concentrations were measured at SG-4, SG-13, SG-14, SG-16 and SG-27. These relatively high concentrations ranged from 8% by volume methane at SG-4 to 68% by volume methane at SG-16. All of these monitoring points are located northeast of the waste disposal except for SG-27, which is located along the northwest boundary of the County property.

The property boundary northeast of the waste disposal area that divides the County property and Parcel No. 455 [Marcas] traversed a heavily wooded area and was not marked in the field so it is not clear if the soil gas monitoring locations, SG-4, SG-13, SG-14 and SG-16 are located on County property or on Parcel No. 455. These locations were assumed to be just over the County property line on Parcel No. 455 based on field measurements.

The soil gas monitoring locations, SG-8, -9, -10 and -11, are located east of the waste disposal area on private property on Parcel 455. These locations are approximately 200-ft beyond the gas monitoring wells, GW-3 and GW-4. Quarterly gas readings measured at GW-3 and GW-4 in March 2004 ranged from 44% by volume methane to 54% by volume methane.

In summary, based on the soil gas data obtained during this survey the landfill gas concentrations measured along the property line northeast and east of the waste disposal area are above regulatory criteria and have migrated onto private property to a limited extent. The elevated landfill gas concentrations measured at GW-3 and GW-4 during the quarterly gas monitoring events does not appear to be migrating onto Parcel 455.

Pl.’s Mem. Supp. Mot. Partial Summ. J. (“Pl.’s Mem.”), Ex. 20 at 3 (Letter from GCI to Tarr of 4/30/04 at 2).

On August 11, 2004 Marcas, as the seller, and Lincoln Property Company Southwest, Inc. (“Lincoln”), as the buyer, executed a Lot Purchase Contract whereby Marcas agreed to sell and Lincoln agreed to buy certain residential building lots (POD 2 and POD 3) in the First Colony Planned Unit Development. Lincoln intended to construct new homes for the U.S. Navy. Id., Ex. 21; Def.’s Reply, Ex. 50.

According to Marcas, the January 23, 2004 letter from Mr. Erichsen and addressed to Mr. Szlendak was discovered in the files maintained by St. Mary’s County DPW & T on September 8, 2004. Second Am. Compl. ¶ 64. In the following memorandum Mr. Tarr, Solid Waste Manager, acknowledged having contact with a Marcas representative in September 2004.

This Memorandum serves as an update to the file regarding the St. Andrews Landfill Environmental Sampling and the possibility of residential units being constructed adjacent to same at the First Colony property(s). Attached are copies of transmittals to the referenced agency requesting information on the landfill and the status of the environmental sampling conducted to date. Mr. Chuck Miller of PF Summers, Inc. requested the information mentioned above as part of an environmental assessment for the First Colony Subdivision. Upon review of the information provided on September 9, 2004, Mr. Miller visited this Department ... In addition, Mr. Miller requested a brief overview of the data, prior investigations, status of the landfill operation, any future remedial action(s) which may be necessary as per Federal and State Regulations and the current closure project.

Mr. Miller was provided a brief overview of the information requested and was informed that all actions performed to date have been in accordance with Federal and State Regulations and concurrence from the Maryland Department of the Environment. Mr. Miller was satisfied with the information provided, current status of the sampling protocol and the possible future remedial actions required to address environmental requirements.

Def.’s Reply, Ex. 15 at 2 (Mem. from Tarr to File of 9/10/04). Mr. Tarr provided courtesy copies of this memorandum to file to Mr. Erichsen, Director of St. Mary’s County DPW & T and to the Deputy Director, John J. Groeger.

Having learned about Mr. Erichsen’s January 23, 2004 letter in September of 2004, Marcas “commissioned ARCADIS G & M, Inc. to investigate the potential environmental impacts to the Property resulting from [the County’s] Landfill.” Second Am. Compl. ¶ 68. Meanwhile, Mr. Erichsen wrote a memorandum to George G. Forrest, County Administrator, regarding the Szlendak Meeting/First Colony and landfill related matters, stating in pertinent part,

As you are aware, yesterday there was a meeting at Land Use & Growth Management on the above-referenced matter. In addition, on September 29, 2004 there is a follow-up meeting with Mr. Szlendak and Paul Summers to walk the subject properties and explain our operations further. Of particular interest may be the following items, which have also been attached for ease of reference.

• Our January 28, 2004 coordination letter with Mr. Szlendak advising him of the results of gas migration beyond the St. Andrews Landfill boundary line.

• Our May 10, 2004 formal letter to the MDE submitting the Fall 2003 Semi-Annual Gas Monitoring Report for their review.

• The MDE’s June 24, 2004 approval of our remediation plan addressing the off-site gas migration after review by the Maryland Environmental Service.

* * *

• We met with P.F. Summers’ representative, Mr. Chuck Miller, on September 9, 2004 and transmitted information both that day and the following day as evidenced by the attached transmittals.

• Landfill gas also can result [in] elevated readings in our groundwater monitoring wells. The County is installing eleven (11) blowers and gas flares in conjunction with the closure project, which is almost completed. The remediation trenches approved by the State will address the gas and groundwater monitoring results. In fact, the trenches may also be flared to avoid any odor-related side complaints near residential properties.

• Apparently P.F. Summers has conducted portions of a Phase I environmental study as a part of marketing the development of a portion of First Colony as residential Navy housing. He advised that he would forward the results to us in the future.

Def.’s Reply, Ex. 27 at 3 (Mem. from Erichsen to Forrest of 9/29/04 at 2).

That same day Mr. Tarr wrote the following memorandum to file.

This memorandum serves as a followup to the attached 9/29/04 memorandum to the County Administrator regarding the St. Andrews Landfill Environmental Sampling. On this date, a meeting was conducted and the following individuals were present: Mr. John Groeger, Deputy Director; Mr. Caz Szlendak, Porto Bello Development Company, Inc.; Mr. Paul Summers, PF Summers, Inc. and myself. The meeting was requested by Mr. Szlendak as a follow-up to the 9/28/04 meeting held at the Department of Land Use and Growth Management.

A brief overview of the information contained in the Landfill Gas Remediation Plan, prepared by the Maryland Environmental Service and approved by the Maryland Department of the Environment (MDE), was provided to Mr. Szlendak and Mr. Summers. The primary concern expressed by Mr. Szlendak was the extent of landfill gas migrating from the St. Andrews Landfill and its potential impact on the future development of residential dwellings in the PUD at First Colony.

Mr. Szlendak was informed that he will be receiving a revised Right-of-Entry Agreement from the County requesting continued access to his property ... for the possibility of additional sampling associated with the landfill gas remediation plan, and 8) Access from his property for the construction of a trench system to prevent migration of landfill gas from out property in FY06, with the design in FY05.

* * *

Lastly, Mr. Szlendak was informed that the MDE has approved all efforts by the County to address the above mentioned issues and any future initiatives will be coordinated with the MDE. Mr. Szlendak requested to be kept aware of any remedial actions associated with his property and this Department agreed to same.

Id., Ex. 27 at 2 (Mem. from Tarr to File of 9/29/04); Pl.’s Mem., Ex. 23 at 2 (Mem. from Tarr to File of 9/29/04).

About one month later, William Roger Truitt, Esquire, counsel for Marcas, sent the following letter to John P. Norris, III, County Attorney, St. Mary’s County.

On behalf of my client, Marcas LLC, I would like to thank you and the other St. Mary’s County officials who met with me and my client’s representatives last Thursday in Leondardtown. I believe the meeting was productive in terms of the information exchanged and I am hopeful that the County and my client can reach an amicable and timely resolution of the remaining First Colony development issues, including those associated with the St. Andrews Landfill.

At the conclusion of the meeting, Caz Szlendak provided County Administrator George Forrest "with a copy of an October, 2003 Phase I Environmental Site Assessment performed by GeoTechnology Associates, Inc. (“GTA”) and a January 19, 2004 letter from GTA reporting on the installation and field-screening of five soil-gas monitoring points on a portion of the First Colony PUD known as Settlers Landing, which is just north of the St. Andrews Landfill. This was a portion of the information requested from my client by George Erichsen.

The balance of information requested by Mr. Erichsen is enclosed and consists of a letter and report prepared by Mr. Lawrence Hosmer, a professional engineer with 34 years experience at more than 250 landfills across the country. Mr. Hosmer is a Senior Vice President of ARCADIS G & M, Inc., an international environmental consulting firm. The enclosed materials provide a more detailed version of Mr. Hosmer’s evaluation of the St. Andrews Landfill than there was time to present to County officials last Thursday and include specific recommendations with respect to gathering more data and implementing certain remedial measures that will help ensure public safety.

Please note that Mr. Hosmer estimates that implementation of these recommendations by the County will cost in the range of $750,000. When amortized over 20 years at the County’s current Maryland Water Quality Financing Administration rate (2.4%), the additional costs to protect future residents of First Colony amounts to approximately $50,000 per year. This compares to approximately $230,000 per year in additional property taxes that I understood the County is being paid by my client for the undeveloped portion of First Colony and to revenue several times that amount that the County will realize once the development is finished. Therefore, the County’s prompt completion of a comprehensive remedial investigation of necessary and appropriate remedial measures for the St. Andrews Landfill is in the best financial interests of St. Mary’s County.

The owners and developers of First Colony have already incurred more than $4.8 million of extraordinary expenses, including nearly $1.5 million in public water facilities which have been dedicated to METCOM and provide protection to human health through the drilling of two deep wells into the Patapsco aquifer. A July 29, 2004 letter from Harry Blumenthal to Denis Canavan documenting these expenses is enclosed. It is clear, therefore, that significant off-site response and infrastructure costs have already been invested by the owners and developers of First Colony to assist the County’s remediation efforts at the St. Andrews Landfill.

As we discussed at our meeting last Thursday and as detailed in the enclosed materials, very similar circumstances to the St. Andrews Landfill arose in connection with Harford County’s Tollgate Landfill about 15 years ago. In that case, ARCADIS helped the County design and install an active landfill gas and groundwater extraction well system within a period of six months to forestall litigation threatened by the developer of adjacent condominiums that were impacted by the landfill. Not only was litigation avoided, but the aggressive engineering approach taken by the County was much less expensive than acquiring a buffer zone that may not have been adequate. Thanks to ARCADIS’s design and the County’s proactive approach, the Tollgate Landfill and its condominium neighbors coexist today without any reported problems.

Please be aware that' I have been advised by my client that Lincoln Properties Company, the contract purchaser for portions of the First Colony property, has just been awarded a contract for U.S. Naval housing. As a result, First Colony will need to make available 240 units for Naval housing between July 2005 and January 2006. Therefore, the environmental issues associated with the St. Andrews Landfill and the remaining development issues need to be resolved promptly.

After you and your client have had an opportunity to review these confidential settlement materials, please call me to discuss how and when the County plans to incorporate them into its remedial design. My client will cooperate with the County in granting access for testing on the First Colony property, with the services of Mr. Hosmer and others at his firm available to assist the County and its consultants in developing and implementing appropriate remedial responses for the St. Andrews Landfill. I look forward to hearing from you within the next 10 days concerning this matter.

Def.’s Reply, Ex. 47 at 2-4 (Letter from Truitt, Esq. to Norris, Esq. of 10/26/04 at 1-3); Pl.’s Mem., Ex. 24 at 2-4 (Letter from Truitt, Esq. to Norris, Esq. of 10/26/04 at 1-3).

The aforementioned report by Mr. Hosmer is dated October 27, 2004 and is addressed to Mr. Truitt.

ARCADIS G & M, Inc. (ARCADIS) herewith transmits an initial report entitled “Remedial Program Evaluation for St. Andrews Landfill” (SAL), located in St. Mary’s County, Maryland. The intent of this report was to review and evaluate basic data available for the site with respect to the potential for environmental releases to neighboring property to the east and northeast (onto Parcel 455 owned by the First Colony development), and to assess the potential exposure of proposed residences in that area to contaminants from the landfill. This situation is not uncommon, particularly in urban areas where development near existing landfills is proceeding. A very similar project at the Tollgate Landfill in Belair, Harford County, Maryland indicates expectation of environmental conditions in such an instance, and provides guidance for a reasonable and safe resolution. At the Tollgate Landfill, a proactive, aggressive landfill gas and leachate management system permitted the development on an adjacent property on an expedited schedule, and has resulted in protection of the public for the ensuing 15 years.

After reviewing the reports available to date regarding SAL, and meeting with St. Mary’s County staff, ARCADIS has established the following conclusions and recommendations:

1. Fill “data gaps”: Data gaps have been noted based on the available reports. These data gaps can be resolved by a more comprehensive field investigation to determine ... landfill gas migration, and geologic conditions in the vicinity of the northeastern boundary of SAL, and extending onto Parcel 455. Specifics with respect to the design and operation of the landfill, as well as the Maryland Environmental Service (MES) recommended design for the remedial system, would aid in refining the remedial program.

2. Implement an active gas extraction system: An active landfill gas extraction system is recommended along the northeastern boundary of the SAL as a result of methane concentrations exceeding the regulatory limit for methane on property beyond the landfill boundary. Methane, at high levels, is unsafe due to its explosiveness if allowed to accumulate beneath structures. Additionally, VOCs that have been detected in the groundwater and surface water are most likely partitioning into the subsurface, or migrating coincident with the landfill gas. Although the VOCs may be below maximum contaminant levels in the groundwater, the inhalation pathway may result in adverse health effects in residents at that location.

* * *

6. Enhance security: A security fence should be installed to deter site access along the northeastern boundary. This additional security would reduce the risk of injury as well as maintenance due to lesser accessibility.

Before a final remedy can be implemented that is protective of future residents in the proposed First Colony development, further investigation of the landfill gas ... on Parcel 455 is warranted. This information will identify risk factors to proceeding with development at this time, and serve as a basis for designing an appropriate mitigation system on the SAL by the County. At this time, it is recommended that enhancements to the MES proposed remedy are warranted and necessary to protect public health and safety.

Our independent cost evaluation to implement the MES preferred alternative for a passive gas extraction system indicates a projected cost in the range of $170,000 to $200,000. The additional cost to convert this passive gas extraction system into an active gas extraction system, as perceived by the County, is approximately $60,000. These costs represent capital costs only, excluding operation, maintenance, and monitoring (O & M) activities which will be required regardless of the system instituted. An opinion of probable construction cost for implementing a more comprehensive remedy that considers each of the six issues identified above, again excluding O & M, but including ... an active gas extraction system, and an enclosed central flare will require funding at a level of approximately $750,000 above the MES preferred remedy cost, or a total on the order of $920,000 to $950,000.

The major components of this work would include:

Site preparation and construction sup- $ 80,000 port

Supplemental cap $220,000

Active gas management system, includ- $225,000 ing trench and enclosed flare

Site security $ 30,000

Design, administration and contingency $265,000

We trust this information, discussed in greater detail in the attached report, provides a basis to proceed with further discussions between First Colony and St. Mary’s County. If you have any questions concerning the information provided herein, please do not hesitate to contact us.

Def.’s Reply, Ex. 11 at 2-4 (Letter from Hosmer to Truitt, Esq. of 10/27/04 at 1-3).

Meanwhile, on November 8, 2004, Richard N. Rose, Vice President, Lincoln Property Company Southwest, Inc., sent a letter to Mr. Szlendak of Marcas and Mr. Paul Summers of PF Summers Inc. regarding the August 11, 2004 Lot Purchase Contract between Marcas and Lincoln.

It is my understanding from several conversations with Paul Summers that Marcas, LLC would be willing to provide Lincoln Property Company Southwest, Inc. or its assigns a total of 240 residential lots in its First Colony Development, under similar terms and conditions of the above referenced contract. There would be a minimum of 176 single family detached lots and a combination of 64 duplexes and triplexes.

If you are in agreement with this please sign below and return a copy of this letter to me. Upon receipt, we will then prepare an amendment to document the corrected location of the land. Thank you and we look forward to working with you on this project.

Pl.’s Mem., Ex. 25 at 2 (Letter from Rose to Szlendak & Summers of 11/8/04). Both Mr. Szlendak and Mr. Summers signed and dated the document on November 8, 2004.

On November 15, 2004 a meeting was held involving five officials from the MDE, one individual from GCI, one official from MES and Mr. Tarr of St. Mary’s County. Mr. Tarr prepared the meeting minutes.

St. Andrews Landfill

Landfill Gas Remediation Update

Proposed County schedule as per correspondence dated October 15, 2004

The schedule as proposed to construct and install the passive/active trenches was discussed. Currently the system is being designed by the Maryland Environmental Service (MES) and is anticipated to be completed/submitted to the Maryland Department of the Environment (MDE) for review and approval by April 1, 2005; request for bid to construct by July 1, 2005; award/ initiate the project by August 1, 2005 and complete construction by November 30, 2005. At present, the County will proceed with the design and awaits a formal response from MDE regarding the proposed schedule,

Will additional sampling along the Eastern portion of property, slightly north of previous event based on investigation conducted by Geo-Technology Associates, Inc. as per their report date January 19, 2004, be required by MDE? Upon discussion of same, it was agreed that if the First Colony Developer is planning to perform their own investigation and provides same to the County and MDE in the near future, the results will be included in the design consider ation for the landfill gas remediation system.

Should the County convert proposed remediation from passive trenches to active?

Upon discussion of same, the MDE expressed reservation in requiring the trenches to be active as they were originally approved. They have indicated that by making the trenches active, it may influence the migration of landfill gas from the landfill; thus they will conduct a meeting between their own staff to determine the status of passive v. active in l[i]eu of their previous approval of the remediation plan and if they revise their prior approval, the County will be notified immediately. The MDE recommends, as of this date, constructing the trenches to be active, however only implement same to be passive and if necessary, convert the trenches to an active system. The County advised that the design has begun in accordance with their approval to date.

Should the County modify the approved existing gas extraction system installed as part of the closure to a single flare for both sides?

The MDE has expressed an interest in the possible conversion of the landfill gas extraction system atop the landfills to utilize a centralized blower system possibly drawing a greater vacuum. This approach may further minimize the likelihood of gas migration, however, since the trench will be installed, too much oxygen may be introduced into the landfill and create landfill fires in the future which would be nearly impossible to extinguish once sta[r]ted. The County concurs with this observation. The MDE will provide their final recommendation in the near future once they have discussed and agreed upon same with their own staff. The County advised that sufficient time should be allowed to ascertain if the blowers and the planned trench remediation achieves the desired results.

Def.’s Reply, Ex. 12 at 3-4 (MDE/St. Mary’s County Meeting Minutes of 11/15/04 at 2-3).

On December 6, 2004 Mr. Tarr wrote another memorandum to file.

This Memorandum serves as an update to the file regarding the St. Andrews investigations previously performed, under way or planned for the future.

The St. Andrews Landfill continues to be monitored (... landfill gas) and the results of same are forwarded to the Maryland Department of the Environment (MDE) for their review and comment. To date, no comments have been received from the MDE regarding the results and based on historical meetings with the MDE, the monitoring has continued and no additional measures have been taken. The continued monitoring of the landfill has been consistent with direction from the MDE and the Director of this Department, Mr. George Erichsen, with no additional work being performed....

Lastly, as of this date, no information has been provided to the County regarding the field investigations being performed by an Environmental Engineering Firm hired by Mr. Caz S[z]lendak for the First Colony property. Mr. Erichsen has provided direction to myself that the County will not perform additional work unless the MDE directs the County to perform same or if Mr. S[z]lendak does not provide the field results; the additional information, if available, will be utilized for the landfill gas remediation design. Mr. Erichsen has directed myself to continue with the schedule to complete the landfill gas remediation project for the St. Andrews Landfill as proposed and current of this date, regardless of the possible future development in the near future.

PL’s Mem., Ex. 26 at 2 (Mem. from Tarr to File of 12/6/04).

Ms. Hynson of MDE responded to Mr. Tarr’s November 17, 2004 letter stating in pertinent part,

This letter is in response to your submittal to the Maryland Department of the Environment (the “Department”) dated November 17, 2004, consisting of meeting minutes from the November 15, 2004 joint meeting on St. Andrews Landfill. The meeting was held to discuss the proposed landfill gas remediation plan....

In response to the issues raised at the November l[5]th meeting as well as your meeting minutes, the Department offers the following comments:

East Side:

You state that the First Colony developer might be planning to conduct additional gas sampling along the northeastern portion of the property. The Department would accept the results of this sampling. If the developer does not conduct the sampling, the Department recommends that the County conduct additional sampling to determine the extent of gas migration from the landfill.

The Department had previously approved the County’s plan to install an active gas trench along the eastern portion of the landfill. Operating an active system beyond the limit of waste could intensify the negative pressure gradient outside the fill. This process could magnify the migration of landfill gas beyond the footprint of the landfill towards the property boundary, which could increase the partitioning of volatile compounds into the groundwater. It is possible that a passive trench might sufficiently reduce the offset gas concentrations. It is therefore recommended that the trench be operated as a passive trench initially, but be constructed so that the trench could be converted to an active trench quickly should subsequent sampling results indicate a more proactive approach is necessary. It is recommended that monthly gas monitoring be done from new gas wells to be installed between the trench and the new development. Should the sampling results indicate that the passive trench was not sufficiently reducing the gas concentrations within a three-month period, the County would then convert to an active trench.

Def.’s Reply, Ex. 13 at 2 (Letter from Hynson to Tarr of 12/21/04 at 1).

On December 28, 2004 Mr. Hosmer submitted another report to Mr. Truitt, counsel for Marcas, upon performing an additional site evaluation, stating in pertinent part,

In response to the meeting with St. Mary’s County Government (the “County”) on October 22, 2004 and our subsequent discussions, a preliminary Supplemental Site Evaluation has been conducted for Parcel 455 of the First Colony Development in California, Maryland. The purpose of this evaluation was to confirm and further delineate the findings expressed in the document entitled “Remedial Evaluation Program for St. Andrew’s Landfill, St. Mary’s County, Maryland, prepared by AR-CADIS G & M, Inc. (ARCADIS) and dated October 27, 2004.” The ARCADIS report consolidated information previously prepared for, and made available by St. Mary’s County relative to environmental conditions at the neighboring St. Andrew’s Landfill (SAL), which borders Parcel 455 to the southwest and west. The data provided included ... landfill gas monitoring activities at the SAL in the vicinity of the property boundary, prepared by GCI Environmental Services (GCI), and a subsequent “Landfill Gas Remediation Plan for the St. Andrew’s Landfill”, prepared by the Maryland Environmental Service (MES), both under contract to St. Mary’s County.

A preliminary field investigation program was developed to fill “data gaps”, as identified in the ARCADIS report, to confirm the prior findings to the extent possible, and to extrapolate the database into areas of the site and media not previously addressed. The focus of this investigation was the two development modules on Parcel 455 that are slated for residential and/or mixed development in the immediate future, identified as POD 2 and POD 3, and the intervening conservation and recreational areas. These areas of development bound the SAL to the southwest and west. In addition, a site reconnaissance of POD 6 was also conducted to identify any evidence of environmental degradation that could adversely affect future development. Environmental Resources Management, Inc. (ERM) of Annapolis, Maryland implemented the field program; the results of the data collection effort are presented by ERM in their report entitled “Submittal of Field and Laboratory Data Related to the Investigation of Parcel # 455 Near St. Andrews Landfill (SAL), St. Mary’s County, Maryland”, dated December 20, 2004, a copy of which is attached.

SUMMARY OF FINDINGS

While not exhaustive with respect to data point distribution or comprehensiveness, the Supplemental Site Evaluation program confirmed that landfill gas ... [has] migrated beyond the limits of the SAL and onto Parcel 455 of the First Colony Development. This finding is consistent with that of GCI, as consultant to St. Mary’s County, and as predicted by ARCADIS in their October 27, 2004 report. Further, the current evaluation also included an environmental reconnaissance and preliminary investigations on the interior of POD 2 with respect to the presence of landfill gas to establish the extent of gas migration into that area ... Limited analytical samples were collected for confirmation purposes. The goal of this data collection effort was ... to identify a “zero-concentration” line for landfill gas migrating from the SAL onto Parcel 455. The following specific findings were identified:

• While landfill gas continues to migrate onto Parcel 455, as previously concluded by GCI, the stream valleys are controlling the release and further migration of gas toward the east and north, away from the SAL. These streams, and the alignment of FDR Boulevard (indicated on Figure 1), therefore essentially represent the outer boundary of landfill gas migration observed to-date. The “zero-concentration” line presented on Figure 1 approximates this boundary; it may be observed that the area within the “zero-concentration” line appears, based on the development scheme currently under consideration, to be outside the footprint of residential construction for POD 3, and limited to conservation/recreational area between PODs 2 and 3 as well as along the perimeter of POD 2.

• Landfill gas monitoring in the past has included only the constituent methane, but had not considered other volatile organic compounds (VOC’s) similar to those previously-identified in the leachate and groundwater releases. The data collected during this investigation confirmed total VOC emissions near the stream valleys, but these VOC levels were not differentiated by compound; it is anticipated that the compounds present in the leachate and contaminated groundwater will also be represented in the landfill gas.

• The SAL property is not secure from unauthorized access at the present time. After development on Parcel 455, access will become more readily available with the close proximity of residences, roadways and commercial establishments. This situation could cause significant potential public safety concerns through exposure to the environmental controls (i.e., open flame flares), mechanical and heavy construction equipment and physical hazards prevalent on the SAL. In addition, seeps, ponded liquids, gaseous emissions and other indications of environmental releases were present on the SAL during the investigations; these would create exposure pathways for humans unless unauthorized access is prevented through security controls (i.e., fencing).

DISCUSSION

The specifics of the data collection effort conducted during this Supplemental Site Evaluation are presented in the ERM report, attached, and are not reiterated herein. In general, these investigations served to independently document the findings presented above. They also serve to validate the conclusions drawn in the ARCADIS report concerning actions appropriate at the facility to assure protection of the public health and safety. All data available from the ERM data summary and the prior investigations by GCI, as consultants to the County, have been utilized in the following analysis.

Landfill Gas

The “zero-concentration” line for landfill gas migration, as determined utilizing a combination of the current data and that obtained previously, is approximately west of FDR Boulevard and generally south of POD 2, with limited indications at the perimeter of POD 2. It appears from the data collected during the Supplemental Site Evaluation that the topographically higher, less eroded areas of the site are overlain with a mantel of fine-grained soil that act as a “cap” where present. In these areas, gas is literally transmitted in the subsurface rather than discharged to the atmosphere since the subsurface soils are more porous and afford a “path of least resistance” to migration. However, near the stream valleys, where erosion has incised the surface fine-grained soils, the groundwater lends to discharge, and the landfill gas is free to daylight at the surface. This situation was observed along the length of the stream traversing Parcel 455, particularly in the conservation/recreational area north of the recreational area, and to a lesser extent on the southern and western boundaries of POD 2. Along these stream reaches, methane and VOC emissions were observed where they were generally not observed in the higher elevations. However, at least one location in the higher elevations, SG-16, yielded positive landfill gas indications; this was in the vicinity of the highest results obtained previously by GCI, as would be expected.

The data collected at depth by GCI, as well as the several recent shallow locations, indicates that the migration of landfill gas onto Parcel 455 is occurring through the subsurface, with releases to the atmosphere at locations of enhanced permeability in the surface soils. Therefore, where landfill gas has been identified, residential construction with basements or other subsurface structures, as in the recreational area, is not recommended to assure the protection of public safety. This would include the outer perimeter of POD 2 and the entire conservation/recreational area. The interior of POD 2 was only explored with near-surface techniques; therefore, it is not certain, without additional study, whether landfill gas has migrated into this area. The presence of landfill gas at the perimeter of POD 2, and the potential for this gas to migrate upgradient toward the interior suggests that the possibility of gas migrating beneath structures in the interior of POD 2 is likely. Therefore, residential construction with basements in this area is also not recommended given that: 1.) Residences with basements would require mechanical systems to assure that no gas accumulation could occur; and 2.) Homeowner maintenance of such systems is not a reliable solution to mitigating this potential risk. The use of near-surface foundation/slab construction in the interior of POD 2 would not require such systems, and would therefore be protective. PODs 3 and 6 have not yielded any indication of landfill gas migration, and therefore could be constructed with basements.

In general, the release of landfill gas from the SAL onto Parcel 455 must be addressed to protect public safety after development of the parcel occurs, particularly with the placement of structures within close proximity of the property boundary in the recreational area and in POD 2, and to be in compliance with the Code of Maryland Regulations (CO-MAR) Title 26 (26.04.07.21), which specify that landfill gas in concentrations about 100% of the lower explosive limit (LEL) cannot be released at the property boundary of the landfill, a condition which currently exists at the SAL. As may be observed on Figure 1, landfill gas levels above the regulatory limit have been identified at distances of up to 250 feet beyond the SAL boundary. Further, the potential composition of the landfill gas, containing VOC constituents, indicates that open flame flares along a remedial trench system along the boundary, as proposed by MES, may not be appropriate. Two issues result from the use of open flares: 1.) The combustion efficiency of an open flare is lower than can be achieved with an enclosed flare, and this greater destruction efficiency may be necessary to contain any emissions from the combustion of non-methanogenic VOCs present in the gas; and, 2.) The flame in an open flare presents a direct public safety issue for potential trespassers on the SAL.

The MES report suggests that an active gas extraction system along the SAL/Parcel 455 boundary is warranted if the property will be developed for residential use. We concur with this position and since such development is proceeding, the MES should be directed to design such a system to intercept landfill gas migrating from SAL toward Parcel 455. The components of such a system should include:

• A cutoff trench which extends to a minimum depth to intercept, and penetrate, the perennial groundwater table elevation along the entire boundary of the SAL/Parcel 455 boundary along an alignment near the toe of the landfill waste as opposed to at the property boundary;

• A relatively impermeable cap (consisting of a minimum of a two-foot thickness of compacted clay) constructed in the area between the existing] landfill cap and exterior limit of the trench to assure capture of the gas for destruction;

• A collection system in the trench connected to a central blower system which removes the gas for destruction at a remote location: i.e., away from the boundary of the landfill;

• Either a central enclosed flare for gas destruction, or demonstration of the combustion and dispersion efficiency of non-methanogenic compounds by an open flare system; and

• Establishment of a long-term landfill gas monitoring network along the interior and exterior of the property boundary to confirm the conformance of the system with the design goals and the COMAE regulations.

It is suggested that such a system could be installed, after proper design, within a period of less than four months, and further, that design and permitting could be affected in less than three months. Therefore, an appropriate system could be installed within 7 months, a period within which residential development of the property could proceed, but during which no residency would be established. This schedule would permit the system to be started-up, balanced and become effective, and would also allow the existing landfill gas in storage in the subsurface on Parcel 455 to dissipate prior to residential use of Parcel 455. As stated in the ARCADIS report, it is anticipated that such a system could be constructed for a total cost of on the order of $690,000, including design, construction oversight and contingency; this amount is approximately $450,000 more than the system projected by the MES, but is also protective of human health and public safety. Given that residences will be located in close proximity to the remedial system and the SAL, public safety must be assured; the recommended system would be more protective from this perspective.

Security

Not only does the SAL represent a potential public health threat through releases to the environment, it can also represent a public safety issue when located in close proximity to a residential development. The SAL will represent an “attractive nuisance” in close proximity to residences, and