Gertz v. Maryland Department of the Environment

JAMES A. KENNEY, III (Retired, Specially Assigned), J. This appeal is the latest chapter in a decades-long environmental saga involving landfill operations conducted at property owned by Robert E. Gertz, appellant, on Saint Stevens Church Road in Anne Arundel County (the Site). After finding that Gertz willfully violated a prior contempt order requiring closure of his landfill in accordance with specified deadlines and regulations, the Circuit Court for Anne Arundel County entered a second contempt judgment against Gertz. The court imposed a fine of $50,000 as a stipulated penalty stemming from the prior contempt order, plus an additional $22,000 that it suspended on the condition that Gertz complies with future inspection and monitoring requirements. Gertz appeals this contempt judgment, presenting the following three slightly revised questions for our review: I. Whether the circuit court erred in finding him in constructive civil contempt and imposing sanctions for his past failure to comply with a court order?

II

Whether the circuit court erred by finding him in constructive civil contempt and by failing to specify how the contempt may be purged?

III

Whether the circuit court erred in finding that a delay in complying with the Court Order dated January 7, 2004, was a willful violation of a court order warranting a finding of contempt and a $72,000 fine? We conclude that there is sufficient evidence to support the challenged contempt finding and that the court did not err or abuse its discretion in imposing the fine. In particular, we agree with appellee, the Maryland Department of the Environment (MDOE), that the $50,000 fine was imposed pursuant to the prior contempt order, in which Gertz consented to the imposition of a penalty if he failed to comply with specified closure deadlines, and that the $22,000 suspended fine is ⁴¹⁹ subject to a clear purge provision. Accordingly, we shall affirm the judgment.

FACTS AND LEGAL PROCEEDINGS According to MDOE records, beginning in 1984, Gertz began to accept, in exchange for payment, truckloads of organic material, primarily consisting of debris from land-clearing, such as tree stumps, other plant material, and dirt. Gertz ground up the debris and spread it over the Site, claiming that no permit was required because he was merely creating pasture for his horses or composting, and that this activity was “grandfathered” as a “preexisting use.” By December 15, 1997, MDOE had notified Gertz that a permit was necessary for such operations. Nevertheless, Gertz continued to accept such material without a permit. In June 2000, MDOE filed a complaint in the Circuit Court for Anne Arundel County, alleging that the Site, as utilized by Gertz, constituted an open dump, landfill, landfill system, refuse disposal system, or solid waste acceptance facility.

MDOE sought a fine of $400,000 against Gertz for operating the facility without a permit and in violation of applicable environmental regulations. On January 4, 2001, the court preliminarily enjoined Gertz from accepting waste at the Site. On May 23, 2002, after MDOE’s complaint was fully litigated, the court issued a memorandum opinion finding that Gertz had “knowingly, willfully, and unabatedly operated,” “without the required permit, a solid waste acceptance facility and/or a refuse disposal system for public use[.]” An accompanying order “permanently enjoined [Gertz] from conducting the solid waste acceptance facility/refuse disposal system ... until he obtain[ed] the necessary permit.” This order, which we will refer to as the 2002 Injunction, imposed a $110,925 civil fine for these environmental violations and further provided that if Gertz did not have a permit within three months, he would have to close the facility in accordance with applicable regulations. Specifically, the 2002 Injunction stated that Gertz ⁴²⁰ must implement the land fill closure procedures of COMAR 26.04.07.21 if, within three (3) months of this Order, he is unable or refuses to secure the necessary permit to continue operating his site.

If [Gertz] does not receive a permit in the allotted time, he must complete the aforementioned landfill closure procedures within six (6) months from the date of this Order[.] MDOE was granted “continuing access” to the Site “until [Gertz] secure[d] the necessary permit or complete[d] the closure procedures[.]” Gertz thereafter elected not to obtain a permit and ceased operations, but he did not comply with the closure requirements in the 2002 Injunction. As a result, MDOE returned to court seeking enforcement of those provisions. By January 8, 2004, Gertz had consented to closure of the facility under terms that were spelled out in an order of contempt, which we shall refer to as the 2004 Contempt Order. In that order, the court found that Gertz willfully violated the 2002 Injunction and imposed new deadlines for closing the facility in accordance with applicable regulations.

Gertz was obligated, inter alia, to [s]ubmit a grading plan including five copies of a sediment and erosion control plan ... in compliance with Article 21 of the Anne Arundel County Code within 3 months of the date of [the 2004 Contempt Order], to be approved by the County with a copy of the plan to [MDOE], Such plan shall be in conformance with closure requirements for landfills as found in COMAR 26.04.07.21.01 and the sediment and control regulations, Title 4, of the Environment Article and COMAR 26.17.01. The 2004 Contempt Order further required that within 30 days after the grading plan was approved, Gertz had to submit a plan for closing the facility and that “closure shall be completed pursuant to an approved schedule but in any case shall be completed within 90 days of approval of the plan[.]” To enforce these deadlines, the 2004 Contempt Order provided that Gertz “shall pay a stipulated penalty to [MDOE] of ⁴²¹ at least $10,000 for any violation of the deadlines and terms of this Order of Contempt.” Payment of such a penalty was required “upon demand by [MDOE]” and was payable “to the Clean Water Fund administered by [MDOE].” Over the next five years, a series of events culminated in a second contempt order against Gertz, followed by this appeal. After the 2004 Contempt Order, Gertz hired an engineering firm to develop a grading and closure plan that complied with applicable regulations. On April 7, 2004, the last day of the three month deadline set in the 2004 Contempt Order, Gertz filed an application for a grading permit.

On May 5, 2004, the Anne Arundel County Permit Application Center (the County) notified Gertz that it would not approve the application as submitted, citing a number of deficiencies, including lack of both a storm water management plan and a down stream analysis as required by County regulations. According to Gertz’s second engineer, however, it would have been unprecedented to obtain approval of an initial grading plan without such comments, revision, and re-application. Gertz did not submit another grading plan until May 2008— a four-year delay that Gertz attributed to his engineering firm’s claimed inability to obtain County approval “because they ... were out of this County and couldn’t get it through.” Although the County had approved Gertz’s steep slope waiver request on February 2, 2005, that approval did not prompt the filing of a revised application for a grading permit. Instead, progress toward closure of the landfill stalled until late 2007, when Gertz changed engineering firms.

On May 14, 2008, that firm filed a revised grading permit application for the Site that was approved the following day. On May 30, 2008, citing Gertz’s failure to satisfy the closure deadlines in the 2004 Contempt Order, MDOE filed a petition asking that Gertz again be held in constructive civil contempt. On June 10, the court issued an order to show cause and set a hearing date, which was continued several times at both parties’ requests. A grading permit was issued on August 20, ⁴²² 2008, and Gertz thereafter agreed to yet another timetable for closing the facility.

On February 4, 2009, the circuit court entered a Consent Order providing, inter alia, that by February 15, Gertz was to submit a closure plan and schedule that required capping of the landfill by March 15, 2009 and vegetative stabilization by May 1, and file a compliance report by June 1. This order, which we will refer to as the 2009 Consent Order, required twice-yearly inspection of the Site after closure, for a period of five years. In addition, it established “stipulated penalties for violations of the[se] ... deadlines, ... in the amount of $2500.00 ... each,” and for continuing violations “uncured for more than two weeks” a stipulated penalty of $500 per day. Finally, the order set a hearing date of June 29, 2009, “for final review and assessment of penalties regarding [Gertz’s] compliance with the [2004 Contempt Order] and the provisions of [the 2009] Consent Order.” Thereafter Gertz timely filed, and the County approved, a closure plan.

By the time of the June 29 hearing, Gertz had performed all the grading and other required closure work. At the June 29 hearing, after hearing testimony and argument, the court found that Gertz willfully violated the terms of the 2004 Contempt Order; ordered him to pay a fine of $72,000, with $22,000 of that amount “suspended contingent on [Gertz] complying with the Court Order.” The court further required twice-yearly inspections for five years following closure and regular methane gas monitoring. On July 21, the court entered an order and judgment in accordance with its bench ruling. We shall refer to this as the 2009 Contempt Order.

We shall include additional facts as they pertain to our discussion of the issues. DISCUSSION Gertz challenges the 2009 Contempt Order on multiple grounds. After reviewing the law governing review of contempt orders, we shall address each of his complaints in turn. ⁴²³ Standards Governing Review Of Contempt Orders “[I]t is beyond cavil that ‘the power to hold a person in contempt is inherent in all courts as a principal tool to protect the orderly administration of justice and the dignity of that branch of government that adjudicates the rights and interests of the people.’ ” Usiak v. State, 413 Md. 384, 395 , 993 A.2d 39 (2010). Thus, a person subject to a court order may be held in contempt for willfully violating that order.

Dodson v. Dodson, 380 Md. 438, 452 , 845 A.2d 1194 (2004). The violation must be intentional; it is not enough that it result from the alleged contemnor’s negligence. Id. “When a court ... makes a finding of contempt, the court shall issue a written order that specifies the sanction imposed for the contempt.” Md. Rule 15-207(d)(2). The distinctions between civil and criminal contempt are important.

See Dodson, 380 Md. at 448 , 845 A.2d 1194 . For example, in contrast to criminal contempt, which must be proved beyond a reasonable doubt, civil contempt may be proven by a preponderance of the evidence. See Royal Inv. Group, LLC v. Wang, 183 Md.App. 406, 448 , 961 A.2d 665 (2008), cert. dismissed, 409 Md. 413 , 975 A.2d 875 (2009).

For purposes of this appeal, the distinction between the two of particular importance is that, “whereas imposing a sanction for past misconduct is the function of criminal contempt,” “the purpose of civil contempt is to coerce present or future compliance with a court order[.]” Id. For this reason, a civil contempt order may not “impose a sanction upon [the contemnor] for a past failure to comply with a court order.” Id. at 452, 961 A.2d 665 . Rather, a civil contempt order is “remedial in nature” in the sense that it is “intended to coerce future compliance” with court orders that “preserve and enforce the rights of ... parties to a suit[.]” Dodson, 380 Md. at 448 , 845 A.2d 1194 (quoting State v. Roll and Scholl, 267 Md. 714, 728 , 298 A.2d 867 (1973)). “Thus, the penalty in a civil contempt action must provide for purging.” Id. See also Md. Rule 15-207(d)(2) (“In the case of a civil contempt, the order shall specify how the contempt may be purged.”) The court, in the exercise of its civil contempt power, may make “ancillary orders for the purpose of facilitat ⁴²⁴ ing compliance or encouraging a greater degree of compliance with court orders.” Dodson, 380 Md. at 448 , 845 A.2d 1194 ; see Royal Inv.

Group, 183 Md.App. at 447 , 961 A.2d 665 . An appellate court may reverse a finding of civil contempt only “ ‘upon a showing that a finding of fact upon which the contempt was imposed was clearly erroneous or that the court abused its discretion in finding particular behavior to be contemptuous.’ ” Royal Inv. Group, 183 Md.App. at 448 , 961 A.2d 665 (citation omitted). See Espinosa v. State, 198 Md.App. 354, 399-400 , 17 A.3d 754 (2011).

The distinctions between civil and criminal contempt are important. See Dodson, 380 Md. at 448 , 845 A.2d 1194 . For example, in contrast to criminal contempt, which must be proved beyond a reasonable doubt, civil contempt may be proven by a preponderance of the evidence. See Royal Inv.

Group, LLC v. Wang, 183 Md.App. 406, 448 , 961 A.2d 665 (2008), cert. dismissed, 409 Md. 413 , 975 A.2d 875 (2009). For purposes of this appeal, the distinction between the two of particular importance is that, “whereas imposing a sanction for past misconduct is the function of criminal contempt,” “the purpose of civil contempt is to coerce present or future compliance with a court order[.]” Id. For this reason, a civil contempt order may not “impose a sanction upon [the contemnor] for a past failure to comply with a court order.” Id. at 452, 961 A.2d 665 . Rather, a civil contempt order is “remedial in nature” in the sense that it is “intended to coerce future compliance” with court orders that “preserve and enforce the rights of ... parties to a suit[.]” Dodson, 380 Md. at 448 , 845 A.2d 1194 (quoting State v. Roll and Scholl, 267 Md. 714, 728 , 298 A.2d 867 (1973)). “Thus, the penalty in a civil contempt action must provide for purging.” Id.

See also Md. Rule 15-207(d)(2) (“In the case of a civil contempt, the order shall specify how the contempt may be purged.”) The court, in the exercise of its civil contempt power, may make “ancillary orders for the purpose of facilitating compliance or encouraging a greater degree of compliance with court orders.” Dodson, 380 Md. at 448 , 845 A.2d 1194 ; see Royal Inv. Group, 183 Md.App. at 447 , 961 A.2d 665 . An appellate court may reverse a finding of civil contempt only ⁴²⁵ “ ‘upon a showing that a finding of fact upon which the contempt was imposed was clearly erroneous or that the court abused its discretion in finding particular behavior to be contemptuous.’ ” Royal Inv. Group, 183 Md.App. at 448 , 961 A.2d 665 (citation omitted).

See Espinosa v. State, 198 Md.App. 354, 399-400 , 17 A.3d 754 (2011). I. Gertz’s Complaint That The 2009 Contempt Order Impermissibly Sanctions His Past Failure To Comply With The 2004 Contempt Order Gertz argues that “the circuit court erred in finding [him] in constructive civil contempt and imposing sanctions for [his] past failure to comply with a court order.” According to Gertz, “the court based its findings on events that had already occurred; namely, the four year delay between submission of the original grading plan in 2004 and a submission of a revised plan in 2005,” which the court attributed to him. In his view, “[t]he Court’s finding of civil contempt based solely on [his] past conduct” violated the rule that civil contempt “proceedings are generally remedial in nature and are intended to coerce future compliance.” See Dodson, 380 Md. at 448 , 845 A.2d 1194 . We are not persuaded by Gertz’s contention that the court erred in premising its civil contempt finding on his past failure to close the landfill in accordance with the deadlines set in the 2004 Contempt Order.

To the contrary, the court’s threshold task in adjudicating MDOE’s latest contempt complaint was to decide whether Gertz’s “past conduct” violated the 2004 Contempt Order. Cf. Fisher v. McCrary Crescent City, LLC, 186 Md.App. 86, 114, 120 , 972 A.2d 954 (2009) (In constructive civil contempt proceedings, the court must determine by a preponderance of the evidence whether a contemptuous act occurred.), cer t. denied, — U.S. —, 131 S.Ct. 637 , 178 L.Ed.2d 476 (2010). Gertz further complains that because he had already closed the landfill before the 2009 Contempt Order was issued, ⁴²⁶ the $72,000 fine “was not meant to coerce compliance with a court order but to ‘impose a sanction’ on Gertz for a past failure to comply with the court order.” MDOE responds that “the circuit court properly assessed penalties against Mr. Gertz for violation of the 2004 Contempt Order because the penalty was a sanction designed to coerce compliance with [that] order and provided for purging.” We agree.

Although the court set the amount of the penalty for failure to comply with the 2004 Contempt Order at $72,000, it explained that it would “suspend a portion of that as a final incentive for Mr. Gertz to complete the work that remains to be completed under the February 2009 order,” which requires regular methane monitoring and Site inspections over a period of five years. In the ensuing order, the court directed that $22,000 of the fine “shall be suspended contingent on [Gertz’s] full compliance with [the February 2009 Consent] Order and within the time frames set forth” therein. With respect to the remaining “$50,000 non-suspended penalty,” the court explained in its bench ruling that “the parties in the consent order from 2004 had agreed that it would be a minimum penalty .... of $10,000” and that a fine in the range of $50.00 per day or $1,500.00 per month would serve as a “lesson to the public to deter other people from similar'violations[.]” In accordance with the 2004 Contempt Order, the court ordered Gertz to make payment of this amount “to the ‘Maryland Clean Water Fund[.]’ ” In our view, because it was subject to suspension by Gertz’s compliance with the inspection and monitoring requirements in the 2009 Contempt Order, the $22,000 portion of the $72,000 penalty clearly qualifies as a remedial sanction designed to compel future compliance. The court gave Gertz an opportunity to avoid payment of this amount by complying with these easily satisfied obligations.

Therefore, this portion of the contempt sanction is both remedial and capable of being purged. See, e.g., Bryant v. Howard County Dep’t of Soc. Servs., 387 Md. 30, 46 , 874 A.2d 457 (2005) (A contempt sanction can be purged if it permits the contemnor “to avoid ⁴²⁷ the penalty by