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

MURPHY, J. On January 22, 2007, the United States District Court for the District of Maryland opened Case No. 8:07-cv-00196-CBD as a result of a Complaint filed by Marcas, L.L.C. against the Board of County Commissioners of St. Mary’s County. On October 2, 2009, that case was “Stayed pending the receipt of the written opinion of the Court of Appeals of Maryland stating the law governing [two] questions certified” pursuant to the Maryland Uniform Certification of Questions of Law Act, 1 and Maryland Rule 8-305(b). 2 The certified questions are: 1. Whether multiple tort counts and injuries as alleged in [the] Complaint [filed by Marcas, L.L.C. against the Board of County Commissioners of St. Mary’s County] constitute an “individual claim” under the Maryland Local Government Tort Claims Act [ (LGTCA) ], Md.Code Ann. Cts. & Jud. Proc. § 5—303(a); and 2.

Whether the multiple tort counts and injuries as alleged in [Marcas, L.L.C.’s] Complaint constitute the “same occurrence” under the Maryland Local Government Tort Claims Act, Md.Code Ann. Cts. & Jud. Proc. § 5-303(a)[?] For the reasons that follow, we answer “yes” to both questions. Despite the fact that Appellant’s negligence is alleged to have occurred in many ways over an extended period of time, for purposes of C.J. § 5-303(a), 3 all of the causes of action in which Appellee has asserted a claim for money damages constitute an “individual claim” that arises out of the “same occurrence.” ⁶⁷⁹ Background In a Memorandum Opinion accompanying its certification order, the federal court stated: This case arises out of [Appellee’s] claims that sub-surface methane gas and other volatile organic compounds migrated from the St. Andrews Landfill to [Appellee’s] adjacent property. [Appellee] alleges that each day of contamination equals a separate occurrence and separate claims for damages, thus allowing for a maximum of $500,000 in damages for each day that a violation exists. In contrast, [Appellant] argues that sub-surface migration over time amounts to one occurrence and one individual claim under the statute, resulting in a maximum total liability of $200,000.

Appellee’s SECOND AMENDED COMPLAINT, in pertinent part, alleges: INTRODUCTION 1. This suit is brought under the federal Comprehensive Environmental Response, Compensation and Liability Act, Solid Waste Disposal Act, and in tort for releases of hazardous substances and other pollutants by [Appellant] onto the property of [Appellee]. [Appellant’s] actions have damaged or threatened the environment and public health and safety and have harmed [Appellee] through damage to and loss of value of [Appellee’s] property, as well as interference with [Appellee’s] efforts to use, develop, and sell [Appellee’s] property. [Appellee] seeks its necessary costs of response to [Appellant’s] releases of hazardous substances under the federal Superfund statute as alleged in Count One; injunctive relief and damages in nuisance and trespass by [Appellant] as alleged in Counts Two and Three; damages for [Appellant’s] wrongful interference with [Appellee’s] business relationships as set forth in Count Four; and damages in strict liability for [Appellant’s] harm to [Appellee’s] property and business interests, as alleged in Count Five. ⁶⁸⁰ 8. The property that is the subject of [Appellee’s] claims is a tract of land consisting of approximately 227 acres, located in California, Maryland, at St. Mary’s County Tax Map 34, Parcel 455 (the “Property”). 9. Cazimir Szlendak, a person who directly or indirectly has an interest in [Appellee], acquired the Property in 1978. 10. [Appellee] acquired the Property on April 10, 1998 from Cazimir Szlendak. 22. [Appellant] began purchasing land for the St. Andrews Landfill in 1971 and completed land acquisition in 1984, for a total site area of approximately 270 acres.

The Landfill includes four sanitary waste disposal cells (Cells 1-4) and one rubble disposal cell (Cell 5). 23. Active land-filling operations were conducted and wastes were disposed at the Landfill beginning in approximately 1974 under the authority of [Appellant]. 24. [Appellant] was in 1974 and continues to be the owner and operator of the Landfill. 25. Disposal operations at the Landfill were conducted until [Appellant] discontinued waste disposal in Cells 1, 2, and 4 in November 1997 and in Cell 3 in February 1999. The disposal of rubble was discontinued in June 2001.

COUNT ONE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT OF 1980, AS AMENDED (“CERCLA”), 42 U.S.C. §§ 9601 , ET SEQ. 96. There has been a release or threatened release of hazardous substance from the Landfill. 97. [Appellee] has incurred necessary response costs, including monitoring, assessment, and evaluation costs consistent with the National Contingency Plan, in response to the releases or threatened releases from the Landfill. [Appellee] expects to incur further response costs, consistent ⁶⁸¹ with the National Contingency Plan, in response to the releases from the Landfill. 98. [Appellant] is a current owner or operator of the Landfill. 99. [Appellant] was an owner or operator of the Landfill at the time of disposal of a hazardous substance. 100. Pursuant to 42 U.S.C. § 9607 (a), [Appellant] is liable to [Appellee] for all necessary response costs incurred and to be incurred by [Appellee] at its Property. COUNT TWO TRESPASS 103. [Appellant] has allowed and is continuing to allow hazardous substances, pollutants and contaminants from the Landfill to invade [Appellee]’s Property and interfere with [Appellee]’s interest in the exclusive possession, use and enjoyment of the Property. 104. [Appellant] had notice of its actions giving rise to the trespass and failed to cease the actions. 105.

As an actual and proximate result of the trespass by [Appellant], has been damaged in an amount greater than $10,300,000, the exact amount to be proven at trial. COUNT THREE PRIVATE NUISANCE 107. [Appellant’s ownership and/or operation of the Landfill has been conducted and is continuing to be conducted in a manner that interferes with [Appellee’s] reasonable use and enjoyment of the Property. 108. [Appellant] knew or should have known of the condition and the nuisance or unreasonable risk involved. 109. [Appellant] knew or should have known that the condition existed without the consent of [Appellee]. 110. [Appellant] has failed, after a reasonable opportunity, to abate the condition. 111. As an actual and proximate result of the nuisance maintained by [Appellant], has been damaged in an amount ⁶⁸² greater than $10,300,000, the exact amount to be proven at trial. COUNT FOUR INTERFERENCE WITH BUSINESS OR ECONOMIC RELATIONSHIP 115. [Appellant] 'wrongfully interfered with [Appellee’s] business or economic relationship though intentional and willful acts that had the foreseeable effect of causing damage to [Appellee] in its lawful business of developing property within the First Colony PUD. 116. [Appellant] caused damage to [Appellee] in its lawful business without right or justifiable cause. 117.

As an actual and proximate result of [Appellant’s actions, [Appellee] was damaged in an amount greater than $2,000,000, the exact amount to be proven at trial. COUNT FIVE STRICT LIABILITY FOR ABNORMALLY DANGEROUS OR ULTRAHAZARDOUS ACTIVITY 119. [Appellant’s] operations of the Landfill as an open dump in violation of the Solid Waste Disposal Act and regulation promulgated thereunder is an activity that is unduly dangerous and inappropriate to the place in which it is conducted. 120. As an actual and proximate result of [Appellant’s] activity, [Appellee] has been damaged in an amount greater than $10,300,000, the exact amount to be proven at trial. COUNT SIX SOLID WASTE DISPOSAL ACT (“SWDA”), 42 U.S.C. § 6972 (a)(1)(A) 123. [Appellant] has allowed and is allowing known carcinogens and other pollutants to discharge from the Landfill into waters of the United States without a permit in violation of the requirements of § 402 of the Clean Water Act, 33 U.S.C. § 1342 . ⁶⁸³ 124. [Appellant] has allowed and is allowing methane gas to exceed its lower explosive limit at the facility boundary of the Landfill. 125. [Appellant] has allowed and is allowing uncontrolled public access so as to expose the public to health and safety hazards at the Landfill. 126.

Because the Landfill fails to satisfy the criteria in 40 C.F.R. Part 258, including but not limited to, criteria in 40 C.F.R. §§ 258.27 , 258.23, or 258.25, the Landfill is an open dump prohibited by Section 4005 of the SWDA, 42 U.S.C. § 6945 . 127. [Appellant’s operation and closure of the Landfill is in violation of the SWDA and regulations, conditions, requirements, and prohibitions that are effective pursuant to the SWDA. 128. Pursuant to 42 U.S.C. § 6972 (a), [Appellant] should be enjoined from further violations of the SWDA. COUNT SEVEN SOLID WASTE DISPOSAL ACT (“SWDA”), 42 U.S.C. § 6972 (a)(1)(B) 130. [Appellant] has contributed or is contributing to the past or present storage, treatment, transportation, or disposal of solid and hazardous wastes which present an imminent and substantial endangerment to health or the environment. 131. [Appellant] did not and does not now comply with the requirements for the management of hazardous waste at the Landfill under Subchapter III of the SWDA. 132. [Appellant] did not and does not now possess a permit for the disposal or management of hazardous waste at the Landfill. 133. [Appellant’s] Landfill has not been designed, operated, or closed in accordance with the requirements of Subchapter III of the SWDA or its implementing regulations. 134. Pursuant to 42 U.S.C. § 6972 (a), [Appellant] should be enjoined from further violations of the SWDA. ⁶⁸⁴ While pretrial proceedings were underway, the federal court granted the parties’ request that the “individual claim” and “same occurrence” questions be certified to this Court.

Discussion In Housing Authority of Baltimore City v. Bennett, 359 Md. 356 , 754 A.2d 367 (2000), while holding that the LGTCA’s damages cap provision does not limit the liability of a local government in a tort action in which the local government itself is a defendant, this Court stated: In 1987 the General Assembly enacted Ch. 594 of the Acts of 1987 which affected the tort liability of local governments in several ways----§ 1 of Ch. 594 enacted the LGTCA. The third section contains the monetary caps ($200,000 per individual claim and $500,000 per total claims arising from the same occurrence, § 5—303(a)(l))[.] Id. at 361-62, 754 A.2d at 370 . As a result of our holding in Bennett , in 2001, the General Assembly enacted Ch. 286 of the Acts of 2001, an emergency measure “clarifying that the monetary limits on the liability of a local government under the [LGTCA] apply to claims against local governments when named as defendants[.]” Since April 20, 2001, C.J. § 5-303(a) has, in pertinent part, provided: (a) Limitation on liability,—(1) Subject to paragraph (2) of this subsection, the liability of a local government may not exceed $200,000 per an individual claim, and $500,000 per total claims that arise from the same occurrence for damages resulting from tortious acts or omissions, or liability arising under subsection (b) of this section and indemnification under subsection (c) of this section. The terms, “individual claim,” and “same occurrence,” are not defined in the LGTCA.

Appellant argues that, under C.J. § 5-303(a), Appellee’s Second Amended Complaint asserts only one “individual claim,” and the alleged contamination of Appellee’s property constitutes the “same occurrence.” Appellee argues that it is entitled to assert an “individual claim” ⁶⁸⁵ for each day that its property is contaminated, and that claims based upon different levels of pollution on different days are not claims that arise from the “same occurrence.” These arguments present us with an issue of statutory interpretation. In Lockshin v. Semsker, 412 Md. 257 , 987 A.2d 18 (2010), this Court stated: The cardinal rule of statutory interpretation is to ascertain and effectuate the real and actual intent of the Legislature. A court’s primary goal in interpreting statutory language is to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied by the statutory provision under scrutiny. To ascertain the intent of the General Assembly, we begin with the normal, plain meaning of the language of the statute.

If the language of the statute is unambiguous and clearly consistent with the statute’s apparent purpose, our inquiry as to legislative intent ends ordinarily and we apply the statute as written, without resort to other rules of construction. We neither add nor delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute, and we do not construe a statute with “forced or subtle interpretations” that limit or extend its application. We, however, do not read statutory language in a vacuum, nor do we confíne strictly our interpretation of a statute’s plain language to the isolated section alone. Rather, the plain language must be viewed within the context of the statutory scheme to which it belongs, considering the purpose, aim, or policy of the Legislature in enacting the statute.

We presume that the Legislature intends its enactments to operate together as a consistent and harmonious body of law, and, thus, we seek to reconcile and harmonize the parts of a statute, to the extent possible consistent with the statute’s object and scope. Where the words of a statute are ambiguous and subject to more than one reasonable interpretation, or where the ⁶⁸⁶ words are clear and unambiguous when viewed in isolation, but become ambiguous when read as part of a larger statutory scheme, a court must resolve the ambiguity by searching for legislative intent in other indicia, including the history of the legislation or other relevant sources intrinsic and extrinsic to the legislative process. In resolving ambiguities, a court considers the structure of the statute, how it relates to other laws, its general purpose, and the relative rationality and legal effect of various competing constructions. In every case, the statute must be given a reasonable interpretation, not one that is absurd, illogical, or incompatible with common sense.

Id. at 274-76 , 987 A.2d at 28-29 (internal citations omitted). It is clear that the limitation on liability provision was enacted “for the purpose of limiting the civil liability of local government.” S. Judicial Proceedings Comm., Summary of Com. Rep., S.B. 287, pg. 3 (Md.1987). The current “cap” amounts resulted from a compromise reached by a Conference Committee convened when “neither house concurred in the other’s proposed amendments to H.B. 253 or S.B. 237[J” Bennett, supra, 359 Md. at 378 , 754 A.2d at 379 .

The legislative history includes the following explanation for the cap: The $100,000 per occurrence cap has both historic and statutory precedent. Since 1971, Boards of Education that are self-insured have been able to raise immunity for judgments in excess of $100,000. Presently, liability may be limited to $100,000 per occurrence. Further, the State’s liability in action for which the State is self-insured is limited to $50,000 per individual and $100,000 per occurrence.

These limits are established by regulations issued by the State Treasurer pursuant to amendments to the State Tort Claims Act effective in 1985. Thus, the cap is consistent with existing law. Considering that local governments will be paying judgments in situations where they could have previously avoided liability, the cap is equitable. The cap is necessary so that local governments can predict exposure for both insurance and budgetary purposes.

Since ⁶⁸⁷ local governments provide vital services, unlimited recovery prudents [sic] the prospect of severely impeding the provision of such services. Office of the Governor, Governor’s Legislative Office, Briefing Paper H.B. 258/S.B. 237, 9-10. The legislative history also includes the following testimony presented to the Senate Judicial Proceedings Committee by Maureen Lamb, then Vice President of the Maryland Association of Counties, and Chair of that organization’s Legislative Committee, as well as a member of the Anne Arundel County Council: In the Spring of 1985 the Legislative Committee of the Maryland Association of Counties became aware of the problems that local governments were having in purchasing insurance.... In analyzing the situation it was soon realized that the problem was greater than merely a down cycle of the insurance market.

Insurance companies were not only raising prices, they were abandoning the business of insuring governments. S. Judicial Proceedings Committee, Testimony of Maureen Lamb (Feb. 25,1987). In Bennett, supra, this Court summarized “the status of local governmental immunity from suit up to and including the enactment of the LGTCA[.]” 359 Md. at 358-361 , 754 A.2d at 368-69 . In light of the fact that the LGTCA was enacted at a time when local governments were having problems purchasing insurance, we conclude that the