Bruce Goldfarb v. Mayor and City Council of Balt

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:13-cv-02768-RDB. [999612917]. [14-1825]

Appeal: 14-1825

Doc: 61

Filed: 07/01/2015

Pg: 1 of 40

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-1825

BRUCE GOLDFARB; MICHAEL GALLAGHER,
Plaintiffs - Appellants,
and
RUTH SHERRILL; ELIZABETH ARNOLD; MERAB RICE; SHERRY MOOREEDMONDS; TIM BULL; JULIA DINKINS,
Plaintiffs,
v.
MAYOR AND CITY COUNCIL OF BALTIMORE; CITY OF BALTIMORE
DEVELOPMENT CORPORATION; CBAC GAMING, LLC; CBAC BORROWER,
LLC; MARYLAND CHEMICAL COMPANY, INC.,
Defendants – Appellees.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Richard D. Bennett, District Judge.
(1:13-cv-02768-RDB)

Argued:

March 25, 2015

Decided:

July 1, 2015

Before TRAXLER, Chief Judge, and KING and AGEE, Circuit Judges.

Vacated and remanded by published opinion. Judge Agee wrote the
opinion, in which Chief Judge Traxler and Judge King joined.

ARGUED: Timothy Robert Henderson, RICH & HENDERSON, PC,
Annapolis, Maryland, for Appellants.
Mary Rosewin Sweeney,

Appeal: 14-1825

Doc: 61

Filed: 07/01/2015

Pg: 2 of 40

VENABLE LLP, Baltimore, Maryland; Matthew Wade Nayden, BALTIMORE
CITY SOLICITOR'S OFFICE, Baltimore, Maryland; Donald James
Walsh, OFFIT KURMAN, PA, Owings Mills, Maryland, for Appellees.
ON BRIEF: Thomas M. Lingan, Kenneth L. Thompson, VENABLE LLP,
Baltimore, Maryland, for Appellees CBAC Borrower, LLC, and CBAC
Gaming, LLC; Amy Beth Leasure, Elizabeth R. Martinez, BALTIMORE
CITY LAW DEPARTMENT, Baltimore, Maryland, for Appellees Mayor
and City Council of Baltimore and City of Baltimore Development
Corporation.

2

Appeal: 14-1825

Doc: 61

Filed: 07/01/2015

Pg: 3 of 40

AGEE, Circuit Judge:
The

Resource

Conservation

and

Recovery

Act

(“RCRA”),

42

U.S.C. § 6901 et seq., “establishes a cradle-to-grave regulatory
program for hazardous waste management.”

Envtl. Tech. Council

v. Sierra Club, 98 F.3d 774, 779 (4th Cir. 1996).
Maryland

residents

brought

statutory

claims

under

Several
the

RCRA

against the current and former owners of an industrial property
in

Baltimore

waste.

alleged

to

been

contaminated

by

hazardous

The district court granted the property owners’ motions

to dismiss the claims.
vacate

have

the

district

For the reasons set forth below, we

court’s

judgment

and

remand

for

further

proceedings.

I. 1
In

2012,

the

City

of

Baltimore 2

(“the

City”)

and

CBAC

Gaming, LLC (“CBAC Gaming”) entered into an agreement to develop
a tract of approximately 8.58 acres in Baltimore for use as a

1

Given the posture of this case, we accept as true the
facts alleged in the complaint, construing them in the light
most favorable to the plaintiffs-appellants.
See Nemet
Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255
(4th Cir. 2009).
2 The City Council of Baltimore, the Mayor of Baltimore, and
the City of Baltimore Development Corporation are named party
defendants.
Though their precise roles varied, the complaint
essentially alleges the same conduct against each of them. For
purposes of this appeal, these parties will be collectively
referred to as “the City.”
3

Appeal: 14-1825

Doc: 61

Filed: 07/01/2015

Pg: 4 of 40

casino and ancillary facilities (“the Casino Site”).

As a part

of the arrangement, the City transferred ownership of some of
the land (the “Warner Street Properties”) to CBAC Borrower, LLC,
a subsidiary of CBAC Gaming, while it retained ownership of the
remaining parcels (the “Russell Street Properties”). 3

Although

ownership of the Casino Site is divided, CBAC Gaming alone will
operate the casino and related facilities.
Prior to the Casino Site development, the property had been
the location of “various industrial uses” for over a century.
(J.A.

18.)

In

particular,

(“Maryland

Chemical”)

Properties,

where

bulk

chemical

it

previously
conducted

storage,

City

also

owned

“chemical

repackaging

approximately fifty years.
The

Maryland

owns

Chemical
the

Co.,

Russell

manufacturing

and

Inc.
Street
and/or

distribution”

for

(J.A. 18.)
adjacent

property

(the

“Waterfront

Parcels”) located between the Casino Site and the Middle Branch
of the Patapsco River.
Casino

Site

and

Given the topography of the area, the

Waterfront

Parcels

“slope[]

downward

southeast” until reaching the shoreline of the river.

3

to

the

(J.A.

Defendant CBAC Gaming, LLC “is a consortium of investors
formed to develop and operate the proposed” casino.
(Appendix
(“J.A.”) 15.) CBAC Borrower, LLC “is an indirectly wholly-owned
subsidiary of CBAC Gaming.” (J.A. 15.) Although their precise
roles vary, these parties will be referred to collectively as
“CBAC Gaming,” as they can be properly treated as one entity for
the purposes of our analysis.
4

Appeal: 14-1825

17.)

Doc: 61

Filed: 07/01/2015

Pg: 5 of 40

The Waterfront Parcels are used for various recreational

activities,

and

include

a

pathway

for

biking,

running,

and

walking.
Relying on environmental assessments performed in the 1990s
and early 2000s, Plaintiffs Bruce Goldfarb, Michael Gallagher,
and

Tim

waste

Bull

(collectively

contaminates

migrating

to

portions

the

“Goldfarb”)
of

the

Waterfront

allege

Casino

Parcels

that

Site

and

and

hazardous
has

Middle

been

Branch.

Goldfarb, who utilizes the recreational activities available in
and around the Waterfront Parcels and Middle Branch, filed a
Complaint in the United States District Court for the District
of Maryland alleging that the City, CBAC Gaming, and Maryland
Chemical’s actions (and inactions) on the Casino Site violate
RCRA.
The City, CBAC Gaming, and Maryland Chemical each moved to
dismiss

under

Procedure.

Rule

12(b)

of

the

Federal

Rules

of

Civil

The district court granted the motions as to all

claims against all defendants, though its specific reasoning was
sometimes
claim.

imprecise

and

it

varied

as

to

each

defendant

and

More will be said about the court’s specific rationales

below. 4

4

Several of the district court’s rulings are not challenged
on appeal.
It granted a motion to file a surreply brief; it
concluded that although Goldfarb and his remaining co-appellants
(Continued)
5

Appeal: 14-1825

Doc: 61

Goldfarb

Filed: 07/01/2015

timely

appeals

dismissing the Complaint.

Pg: 6 of 40

from

the

district

court’s

order

We have jurisdiction under 28 U.S.C.

§ 1291.

II.
“RCRA is a comprehensive environmental statute that governs
the

treatment,

waste.”

storage,

and

disposal

of

solid

and

hazardous

Meghrig v. KFC W., Inc., 516 U.S. 479, 483 (1996).

Its

“primary purpose . . . is to reduce the generation of hazardous
waste and to ensure the proper treatment, storage, and disposal
of that waste which is nonetheless generated, ‘so as to minimize
the

present

environment.’”

and

future

threat

to

human

health

and

the

Id. at 483 (quoting 42 U.S.C. § 6902(b)); see

also H.R. Rep. No. 94-1491(I), at 4 (1976), reprinted in 1976
U.S.C.C.A.N. 6238, 6241 (stating that the purpose behind RCRA
was to “eliminate[] the last remaining loophole in environmental
law”

by

regulating

the

“disposal

of

discarded

materials

and

hazardous wastes”).
Although
responsibility

the
for

Administrator
implementing

and

of

the

EPA

enforcing

has

RCRA,

chief

“private

had standing to bring this action, several of the other
plaintiffs lacked standing and should be dismissed from the
suit; and it concluded that the plaintiffs had satisfied §
6972(a)’s notice requirements.
None of these rulings are
challenged on appeal, and our decision does not affect them.
6

Appeal: 14-1825

Doc: 61

Filed: 07/01/2015

Pg: 7 of 40

citizens [can] enforce its provisions in some circumstances.”
Meghrig, 516 U.S. at 484 (citing 42 U.S.C. § 6972).

In relevant

part, § 6972(a) provides that “any person may commence a civil
action on his own behalf--”
(1)(A) against any person . . . who is alleged to be
in
violation
of
any
permit,
standard,
regulation,
condition,
requirement,
prohibition,
or
order
which
has
become
effective pursuant to [RCRA]; or
(B) against any person . . . who has contributed or
who is contributing to the past or present
handling, storage, treatment, transportation,
or disposal of any solid or hazardous waste
which may present an imminent and substantial
endangerment to health or the environment[.]
“Thus, a suit pursuant to subsection (a)(1)(A) must be based on
an

ongoing

predicated

violation,
on

a

whereas

a

[qualifying]

suit

past

under

[or

(a)(1)(B)

present]

may

be

violation.”

Sanchez v. Esso Standard Oil Co., 572 F.3d 1, 7 (1st Cir. 2009)
(emphases added); see discussion infra Section IV.A.
plain

language

indicates,

each

subsection

contains

As their
different

elements and targets somewhat different conduct.
Subsection
violation
alleged

(a)(1)(A)

claims”
“to

be

to

be

authorizes
brought

[currently]

in

so-called

against

a

violation”

“permitting

defendant
of

a

who

is

RCRA-based

mandate, regardless of any proof that its conduct has endangered
the environment or human health.

The permit, etc., subject to

suit under subsection (a)(1)(A) can be either a state or federal

7

Appeal: 14-1825

Doc: 61

standard

Filed: 07/01/2015

that

became

Pg: 8 of 40

effective

pursuant

to

RCRA.

See

§

6972(a)(1)(A); Ashoff v. City of Ukiah, 130 F.3d 409, 411 (9th
Cir. 1997) (“[I]f state standards ‘become effective pursuant to’
RCRA,

a

citizen

can

sue

in

federal

court

to

enforce

the

standard.”).

This is so because RCRA “authorizes the states to

develop

implement

and

their

own

hazardous

waste

management

scheme[s] ‘in lieu of the federal program,’” Safety-Kleen, Inc.
v. Wyche, 274 F.3d 846, 863 (4th Cir. 2001) (quoting 42 U.S.C. §
6926), so long as the state system is at least the “equivalent”
of the federal program.

§ 6929(b).

Maryland is authorized to

operate such a parallel regulatory system, and has adopted the
statutory and regulatory framework to do so.
Final

Determination

on

Maryland’s

See Notice of

Application

for

Final

Authorization [under RCRA], 50 Fed. Reg. 3511 (Jan. 25, 1985).
To remedy a subsection (a)(1)(A) violation, the district court
has

authority

condition,

to

enforce

requirement,

the

“permit,

prohibition,

or

standard,

regulation,

order”

issue.

at

§

6972(a).
At the same time, subsection (a)(1)(B) authorizes so-called
“imminent

and

substantial

endangerment”

claims

to

be

brought

against a defendant whose conduct –- whether ongoing or purely
in

the

past

–-

“may”

now

endangerment

to

health

or

brought

under

claims

pose
the

an

“imminent

environment.”

subsection
8

(a)(1)(A),

and
In

substantial
contrast

claims

to

under

Appeal: 14-1825

Doc: 61

Filed: 07/01/2015

Pg: 9 of 40

subsection (a)(1)(B) may be brought regardless of whether the
plaintiff can demonstrate that the defendant’s actions violated
a

specific

RCRA-based

permit,

etc.

See

AM

Int’l,

Inc.

v.

Datacard Corp., 106 F.3d 1342, 1349-50 (7th Cir. 1997).

The

district

has

court

“contributed

has

or

authority

who

is

to

restrain

contributing

to

any
the

person
past

who

or

present

handling, storage, treatment, transportation, or disposal of any
solid or hazardous waste” referenced in subsection (a)(1)(B).

§

6972(a).
Lastly, to remedy a violation of either subsection, the
district court has authority “to order [a defendant] to take
such other action as may be necessary.”
We

review

dismissal

and

Hotels.com,

de

novo

its

L.P.,

both

the

statutory
553

F.3d

§ 6972(a).

district

court’s

interpretation.
308,

311

(4th

Rule

Pitt
Cir.

12(b)

Cnty.

2009)

v.

(Rule

12(b)(1) dismissal); Eisenberg v. Wachovia Bank, N.A., 301 F.3d
220,

222

(4th

Cir.

2002)

(Rule

12(b)(6)

dismissal);

In

re

Sunterra Corp., 361 F.3d 257, 263 (4th Cir. 2004) (statutory
construction).

III.

Claims Against CBAC Gaming

The Complaint alleges that although CBAC Gaming agreed to
engage

in

certain

remedial

activities

as

part

of

the

construction of the casino and its ancillary facilities, those
9

Appeal: 14-1825

Doc: 61

Filed: 07/01/2015

Pg: 10 of 40

undertakings did not comply with RCRA and so did not adequately
address

contamination

Complaint

alleged

activities

would

at

the

that
continue

Casino

CBAC’s
to

Site.

Furthermore,

Casino

contribute

Site
to

the

construction

and

exacerbate

existing contamination in the soil and groundwater, as well as
its migration to the Waterfront Parcels and Middle Branch.

In

particular, Goldfarb pled that CBAC Gaming’s development actions
violated subsection (a)(1)(A) because they entailed generating,
treating,
wastes

storing,

without

disposing

the

of,

requisite

and

transporting

permits.

In

hazardous

addition,

the

Complaint alleged CBAC Gaming’s construction activities violated
subsection (a)(1)(B) because they contributed to hazardous waste
contamination

that

presented

an

imminent

and

substantial

endangerment to human health and the environment.
CBAC Gaming moved to dismiss the Complaint pursuant to
Federal Rule of Civil Procedure 12(b)(1) for lack of subject
matter jurisdiction and Rule 12(b)(6) for failure to state a
claim.

In relevant part, CBAC Gaming contended that the claims

against

it

should

be

dismissed

provision, 42 U.S.C. § 6905(a).
National
permit,

Pollutant
which

Discharge

permitted

under

RCRA’s

anti-duplication

According to CBAC Gaming, its
Elimination

discharge

of

System

(“NPDES”)

stormwater

during

construction of the casino, shielded it from RCRA liability.

10

Appeal: 14-1825

Doc: 61

Filed: 07/01/2015

Pg: 11 of 40

The district court granted CBAC Gaming’s motion to dismiss
based

on

that

general

defense.

The

court’s

analysis

somewhat convoluted, but tracked the following course:

was
Under

RCRA’s anti-duplication provision, activities regulated by the
Clean Water Act (“CWA”) cannot also be regulated by RCRA if
enforcement

of

requirements.
things,

the

both

Acts

would

See § 6905(a).
discharge

navigable waters.

of

lead

to

inconsistent

The CWA regulates, among other

pollutants

from

point

sources

into

To comply with the CWA, Maryland issued a

general construction stormwater permit (the NPDES permit), and
CBAC Gaming was required to comply with that permit during the
course of the casino construction activities.

Under the terms

of the NPDES permit, CBAC Gaming must comply with erosion and
sediment control and stormwater management plans.
in

turn,

mandated

remediation

that

activities

CBAC

set

Gaming

forth

in

Those plans,

comply
a

with

Response

specific

Action

Plan

(“RAP”) that CBAC Gaming voluntarily performed as part of its
participation in Maryland’s Voluntary Cleanup Program.
result,

the

remediation

activities

contained

in

the

As a
RAP

had

effectively been incorporated into the provisions of the NPDES
permit and were no longer voluntary.

The NPDES permit thus

regulated more than just point source stormwater discharge from
the

Casino

construction

Site,

but

activities

also
at

covered

the
11

Casino

CBAC
Site

Gaming’s
by

virtue

other
of

the

Appeal: 14-1825

Doc: 61

Filed: 07/01/2015

Pg: 12 of 40

erosion and sediment control and stormwater management plans and
the RAP.

So long as CBAC Gaming complied with those approved

activities, the NPDES permit shielded CBAC Gaming from liability
under the CWA.

Following this path of reasoning, the district

court concluded that the NPDES permit shielded CBAC Gaming from
liability
imposed

under

under

activities

RCRA

RCRA

already

since

would
deemed

under the NPDES permit.

“further

be

remedial

inconsistent

appropriate

with

for

the

requirements
the

remedial

[Casino]

Site”

(J.A. 81.)

In granting the motion to dismiss as to CBAC Gaming, the
district court did not state whether its ruling was based upon
Rule

12(b)(1)

court’s

lack

considerable

or
of

Rule

12(b)(6).

clarity

space

on

on

this

brief

to

Recognizing
point,

the

threshold

the

district

parties

issues

devote

that

are

contingent upon which rule the district court in fact utilized.
For example, only under Rule 12(b)(1) would it matter whether
RCRA’s

anti-duplication

jurisdiction.

What

is

provision
more,

our

implicates
inquiry

subject

would

not

matter
be

as

concerned with what materials the district court relied on to
reach its conclusion.

E.g., In re KBR, Inc., 744 F.3d 326, 333-

34 (4th Cir. 2014) (“When a defendant challenges subject matter
jurisdiction via a Rule 12(b)(1) motion to dismiss, the district
court may regard the pleadings as mere evidence on the issue and
may consider evidence outside the pleadings without converting
12

Appeal: 14-1825

Doc: 61

Filed: 07/01/2015

Pg: 13 of 40

the proceeding to one for summary judgment.
jurisdictional

facts

are

inextricably

However, when the

intertwined

with

those

central to the merits, the district court should resolve the
relevant

factual

disputes

only

after

appropriate

discovery.”

(internal alterations, quotation marks, and citations omitted)).
By contrast, only under Rule 12(b)(6) does it matter whether the
district

court

violated

Rule

12(d)’s

limitation

on

what

materials the court can rely on without converting the motion to
dismiss into one for summary judgment.
12(d)

(specifying

the

process

a

Accord Fed. R. Civ. P.

court

must

follow

when

converting a Rule 12(b)(6) motion to dismiss to a motion for
summary judgment after a district court has been presented with
and

not

excluded

“matters

outside

the

pleadings”);

Hall

v.

Virginia, 385 F.3d 421, 424 n.3 (4th Cir. 2004) (observing that
a court does not convert a motion to dismiss to a motion for
summary

judgment

when

it

takes

judicial

notice

of

public

records); Zak v. Chelsea Therapeutics Int’l Ltd., 780 F.3d 597,
607 (4th Cir. 2015) (same, for judicial notice of adjudicative
facts under Federal Rule of Evidence 201).
In some cases it could be appropriate to remand for the
district
Here,

court

to

clarify

however,

we

must

the

vacate

basis
the

for

its

district

determination.
court’s

ruling

because dismissing the Complaint under either Rule 12(b)(1) or

13

Appeal: 14-1825

Doc: 61

Filed: 07/01/2015

Rule 12(b)(6) was incorrect.

Pg: 14 of 40

A remand for clarification would

thus be pointless.

A.

Rule 12(b)(1)

“To ward off profligate use of the term ‘jurisdiction,’”
the Supreme Court “adopted a ‘readily administrable bright line’
for determining whether to classify a statutory limitation as
jurisdictional.”

Sebelius v. Auburn Reg’l Med. Ctr., 133 S. Ct.

817, 824 (2013) (quoting Arbaugh v. Y & H Corp. 546 U.S. 500,
516

(2006)).

threshold

Absent

limitation

jurisdictional,”

Congress

on

“courts

a

statute’s

should

nonjurisdictional in character.”
Assuming

the

district

“clearly

court

stat[ing]

scope

treat

shall

that

a
as

restriction

the

count

as

Arbaugh, 546 U.S. at 515, 516.

viewed

the

RCRA

anti-duplication

provision as jurisdictional, and dismissed under Rule 12(b)(1)
for lack of jurisdiction, it erred. 5
While the anti-duplication provision may ultimately bar a
plaintiff from obtaining relief in a RCRA suit, that result does
not

mean

that

the

statutory

limitation

5

is

a

jurisdictional

The district court’s opinion gives us some basis for
inferring that it relied on Rule 12(b)(1). Most pointedly, the
district court addressed the claims against CBAC Gaming in a
different section than the one containing the heading: “Failure
to State a Claim Under Rule 12(b)(6) and Iqbal/Twombly,” which
introduces the court’s analysis as to the other defendants.
(J.A. 82.)
14

Appeal: 14-1825

Doc: 61

Filed: 07/01/2015

barrier to recovery.

Pg: 15 of 40

See Arbaugh, 546 U.S. at 515.

Instead,

when we examine its plain language, § 6905(a) does not suggest a
jurisdictional character:
Nothing in this chapter [i.e., RCRA] shall be
construed to apply to (or to authorize any State,
interstate, or local authority to regulate) any
activity or substance which is subject to the [CWA] .
. . except to the extent that such application (or
regulation) is not inconsistent with the requirements
of [the CWA, among other federal statutes].
§ 6905(a).
The statute simply instructs that RCRA provisions must give
way when enforcement would be “inconsistent” with any of the
other delineated acts.

See Coon ex rel. Coon v. Willet Dairy,

LP, 536 F.3d 171, 174 (2d Cir. 2008) (relying on the antiduplication

provision

to

challenging

identical

activities

permit).

prohibit

plaintiff’s

authorized

by

RCRA
a

claims

CWA-based

Given § 6905(a)’s silence as to jurisdiction and the

Supreme Court’s guidance, we conclude that the anti-duplication
provision implicates the viability of an RCRA cause of action
rather than the court’s jurisdiction to hear the claim.

See

Verizon Md., Inc. v. PSC, 535 U.S. 635, 642-43 (2002) (“‘[T]he
absence of a valid (as opposed to arguable) cause of action does
not

implicate

subject-matter

jurisdiction,

i.e.,

the

court’s

statutory or constitutional power to adjudicate the case.’

As

we have said, ‘the district court has jurisdiction if the right
of

the

petitioners

to

recover

under

15

their

complaint

will

be

Appeal: 14-1825

Doc: 61

Filed: 07/01/2015

Pg: 16 of 40

sustained if the Constitution and laws of the United States are
given one construction and will be defeated if they are given
another,’ unless the claim ‘clearly appears to be immaterial and
made solely for the purpose of obtaining jurisdiction or where
such a claim is wholly insubstantial and frivolous.’” (quoting
Steel

Co.

v.

(1998))).

Citizens

Viewed

for

through

Better
this

Env’t,

lens,

the

523

U.S.

83,

89

anti-duplication

provision is more in the nature of an affirmative defense like
the

statute

of

limitations

or

the

failure

to

exhaust

administrative remedies, which are to be timely asserted by a
defendant who chooses to do so.

See Hosanna-Tabor Evangelical

Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 709 n.4 (2012)
(noting a dispute amongst federal circuit courts as to whether
the

ministerial

was

“a

exception

jurisdictional

to

bar

employment

or

a

discrimination

defense

on

the

claims

merits,”

and

concluding that it “operates as an affirmative defense to an
otherwise

cognizable

claim,

not

a

jurisdictional

bar

.

.

.

because the issue presented by the exception is ‘whether the
allegations
whether

the

quotation
would have

the

plaintiff

court

marks
been

has

and

makes

‘power

entitle
to

alterations

error

to

dismiss

hear

him
the

omitted)).
the

to

relief,’

case’”

not

(internal

Accordingly,

Complaint

against

it

CBAC

Gaming for lack of subject matter jurisdiction pursuant to Rule

16

Appeal: 14-1825

Doc: 61

Filed: 07/01/2015

Pg: 17 of 40

12(b)(1) because a defense to liability under RCRA based on §
6905(a) does not implicate jurisdiction.

B.
In

a

Rule

determine

12(b)(6)

Rule 12(b)(6)

whether

the

context,

complaint

the

reviewing

alleges

court

sufficient

must

facts

“to

raise a right to relief above the speculative level” and “to
state a claim to relief that is plausible on its face.”

Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007).

This

directive ordinarily limits a court’s review to the “well-pled
facts in the complaint[, which it must view] in the light most
favorable to the plaintiff.”
503,

505

(4th

Cir.

2011);

Brockington v. Boykins, 637 F.3d
see

also

Clatterbuck

v.

Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013).

City

of

While no

absolute bar exists, a motion to dismiss under Rule 12(b)(6)
does not typically resolve the applicability of defenses to a
well-pled claim.
Cir.

2013)

See Tobey v. Jones, 706 F.3d 379, 387 (4th

(stating

a

motion

to

dismiss

under

Rule

12(b)(6)

“does not resolve contests surrounding facts, the merits of a
claim, or the applicability of defenses”).
Under narrow circumstances, a court may rely on extrinsic
materials to determine a motion to dismiss without converting
the proceeding into a motion for summary judgment.
Civ.

P.

12(d)

(discussing

when
17

conversion

See Fed. R.

occurs

and

what

Appeal: 14-1825

Doc: 61

Filed: 07/01/2015

Pg: 18 of 40

process must be followed to make it proper); see also Zak, 780
F.3d

at

606-07

considered

(discussing

without

when

implicating

extrinsic

Rule

materials

12(d)).

For

may

example,

be
a

court may properly take judicial notice of “matters of public
record”

and

other

information

that,

under

Federal

Evidence 201, constitute “adjudicative facts.” 6

Rule

of

Philips v. Pitt

Cnty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir. 2009); see Fed.
R. Evid. 201(b) (stating, in relevant part, that a “court may
judicially

notice

a

fact

that

is

not

subject

to

reasonable

dispute because it” “can be accurately and readily determined
from sources whose accuracy cannot reasonably be questioned”);
Clatterbuck, 708 F.3d at 557 (“[C]ourts may consider relevant
facts obtained from the public record, so long as these facts
are construed in the light most favorable to the plaintiff along
with the well-pleaded allegations of the complaint.” (internal
quotation marks omitted)).
The parties raise multiple arguments regarding the district
court

taking

judicial

notice

of

certain

“facts”

in

order

to

decide the motion to dismiss, if indeed the district court did
so.

Goldfarb asserts the district court converted the motion to

dismiss into a motion for summary judgment in violation of Rule
12(d).

CBAC Gaming responds that the court did not violate this

6

“Adjudicative facts are simply the facts of the particular
Fed. R. Evid. 201, Advisory Committee’s note.

case.”

18

Appeal: 14-1825

Doc: 61

Filed: 07/01/2015

Pg: 19 of 40

provision because it could have properly taken judicial notice
of

each

of

analysis.

the

exhibits

it

relied

on

as

the

basis

for

its

In particular, it contends that the NPDES permit, the

City-approved erosion and sediment control plans and stormwater
management plans, and the RAP are each public records containing
adjudicative facts subject to judicial notice under Rule 201 of
the Federal Rules of Evidence. 7
the

district

exhibits

court
their

and

in

contents,

CBAC Gaming maintains that once

effect

took
it

judicial

was

meaning and draw legal conclusions.

free

to

notice

of

those

interpret

their

Goldfarb, in turn, replies

that the district court never claimed it was taking judicial
notice and therefore necessarily failed to identify what facts
it

was

noticing

opportunity

to

or

provide

respond.

Goldfarb

Furthermore,

with

notice

Goldfarb

and

contends

an
the

exhibits are not public records and that even if the court could
properly

take

notice

of

their

existence,

it

erred

by

then

relying on their contents for the truth of the matters asserted
therein.
7

For example, CBAC Gaming points to language in the NPDES
permit not only requiring it to “develop and obtain approval . .
. of . . . erosion and sediment control plans . . . and . . .
stormwater management plans,” Appellees’ Designated Exhibits
(“Ex.”) 169 (§ II.A.3), but also stating that “[v]iolations of
plans for construction activity, including applicable Erosion
and Sediment Control and Stormwater Management Plans, constitute
violations of this permit, State law, and the CWA.” (Ex. 176, §
VI.A.)
It then notes that those plans, in turn, were “subject
to the provisions in the final RAP.” (Ex. 26, § C 50-06.)
19

Appeal: 14-1825

Doc: 61

Filed: 07/01/2015

Goldfarb
district

is

court

correct

did

not

at

Pg: 20 of 40

least

explicitly

to

the

state

extent

that

it

that
was

the

taking

judicial notice of particular “facts,” let alone identify what
those “facts” were.

Nevertheless, even if we assume that the

taking of judicial notice was part of the court’s decisional
process, we need not address whether the act of taking such
notice

was

erroneous.

conclusion:

First,

There

regardless

are
of

two
how

reasons
the

for

district

this
court

proceeded, we, too, are authorized to take judicial notice in an
appropriate case.

Fed. R. Evid. 201(d) (“The court may take

judicial notice at any stage of the proceeding.”); Massey v.
Ojaniit, 759 F.3d 343, 353 (4th Cir. 2014) (observing that an
appellate court may take judicial notice of the same materials
as could a district court).

Second, even assuming the district

court could properly take judicial notice of the contents of the
exhibits, the court’s specific legal analysis was incorrect.
To grant the motion to dismiss under Rule 12(b)(6), the
district court would have to conclude that § 6905(a) barred a
RCRA

cause

of

action

as

pled

against

CBAC

Gaming

because

enforcement of RCRA would be “inconsistent” with the CWA.

The

district court opined to that effect, stating that any “further
remedial requirements imposed under RCRA would be inconsistent
with the remedial activities already deemed appropriate” for the

20

Appeal: 14-1825

Doc: 61

Filed: 07/01/2015

Pg: 21 of 40

Casino Site pursuant to the CWA (via the NPDES permit and the
documents it incorporated).

(J.A. 81.)

Since § 6905(a) (or any other RCRA provision of which we
are aware) does not define “inconsistent,” we give this word its
ordinary dictionary meaning: “lacking consistency: incompatible,
incongruous, inharmonious . . . so related that both or all
cannot be true.”

Webster’s Third Int’l Dictionary 1144; see

also Black’s Law Dictionary (10th ed.) (“Lacking agreement among
parts;

not

English

compatible

Dictionary

incongruous”).

with

(“at

another

variance,

fact

or

claim.”);

discordant,

in

Oxford

compatible,

To be “inconsistent” for purposes of § 6905(a),

then, the CWA must require something fundamentally at odds with
what RCRA would otherwise require.
EPA,

996

F.2d

326,

337

(D.C.

See Edison Elec. Inst. v.

Cir.

1993)

(rejecting

anti-

duplication provision argument where petitioners were “unable to
point

to

any

direct

listed in § 6905(a)).

conflict

between”

RCRA

and

another

act

RCRA mandates that are just different, or

even greater, than what the CWA requires are not necessarily the
equivalent of being “inconsistent” with the CWA.
Although

the

“inconsistent,”

district

it

court

undertook

determine

whether

a

conflict

applicable

RCRA

regulations

constituted

such

a

the

analysis

no

recited

in

actually
and

conflict.

the

Instead,
21

statutory
its

existed
CWA,
the

much

term

opinion
between
less

district

to
the

what

court’s

Appeal: 14-1825

Doc: 61

Filed: 07/01/2015

Pg: 22 of 40

analysis overstates when regulation pursuant to RCRA yields to
the CWA.

It is not enough that the activity or substance is

already regulated under the CWA; it must also be “incompatible,
incongruous, inharmonious.”

The district court’s conclusion is

thus built on the faulty premise that the CWA and RCRA cannot
regulate the same activity under any circumstance. 8

See New

Mexico v. Watkins, 969 F.2d 1122, 1131 (D.C. Cir. 1992) (stating
§ 6905(a) “contemplates joint regulation under both RCRA and
[another act listed in § 6905(a)] in certain circumstances”).
The district court never stated what the NPDES permit, erosion
and sediment control and stormwater management plans, or RAP
regulated that was “inconsistent” with the alleged obligations
of CBAC Gaming under RCRA.

Nor did the court examine what

actions Goldfarb pled CBAC Gaming was required to undertake to
comply with RCRA that were “inconsistent” with the NPDES permit
and its derivative documents.
The

district

court

simply

did

not

undertake

a

basic

comparison, at least not one discernible from the record, to
consider

whether

RCRA

would

have

8

required

anything

of

CBAC

The district court also found it significant that
Goldfarb’s Complaint did not argue that CBAC Gaming had violated
any of the erosion and sediment control and stormwater
management plans or the RAP.
This, too, does not resolve the
inconsistency inquiry under the anti-duplication statute because
CBAC Gaming could be in full compliance with those requirements
and yet still be in violation of RCRA.
22

Appeal: 14-1825

Doc: 61

Filed: 07/01/2015

Pg: 23 of 40

Gaming that would be “inconsistent” with what CBAC Gaming was
already required to do to comply with the CWA.

Instead, the

district court broadly concluded that since all of CBAC Gaming’s
construction activities would satisfy the CWA as a result of the
CWA’s

permit

shield,

requiring

anything

would be “inconsistent” with the CWA.
was

required.

We

therefore

vacate

“further”

under

RCRA

As set forth above, more
and

remand

the

district

court’s decision, if based on Rule 12(b)(6), for the failure to
identify how the Complaint’s RCRA allegations are “inconsistent”
with the CWA.
posture

of

But in so doing, we also note that the procedural

this

case

presents

a

further

ground

of

concern

relating back to the proper scope of a court’s review of matters
outside the pleadings and the taking of judicial notice.
maze

of

specific

cross-references
provisions

to

within

exhibits

them

makes

and

The

interpretations

this

case

of

particularly

ill-suited to adjudication at the motion to dismiss stage.

As

noted, CBAC Gaming raised the anti-duplication provision as a
potential defense to liability, and it relied almost exclusively
on

exhibits

outside

the

Complaint

in

doing

so.

That

inclines against deciding the case under Rule 12(b)(6).

alone
See

Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007)
(discussing

“the

relatively

rare

circumstances

where

facts

sufficient to rule on an affirmative defense are alleged in the

23

Appeal: 14-1825

Doc: 61

complaint”

Filed: 07/01/2015

such

that

the

Pg: 24 of 40

defense

could

be

the

basis

for

disagree

about

the

dismissal under Rule 12(b)(6)).
Furthermore,

the

parties

vehemently

nature and scope of the NPDES permit and other exhibits, putting
at issue basic factual matters relevant to interpreting what
those exhibits mean and how they relate to the RCRA claims pled
against

CBAC

Gaming.

We

have

intentionally

bypassed

these

arguments and refrained from mining the exhibits to determine
what, if anything, we could take judicial notice of on appeal.
See Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177,
216 (4th Cir. 2009) (declining to take judicial notice of permit
decision documents and other exhibits because the party seeking
notice sought “notice of its own interpretation of the contents
of those documents” and not just notice of their existence).

We

are

an

mindful

that

judicial

notice

must

not

“be

used

as

expedient for courts to consider ‘matters beyond the pleadings’
and thereby upset the procedural rights of litigants to present
evidence on disputed matters.” Waugh Chapel S., LLC v. United
Food & Commercial Workers Union Local, 728 F.3d 354, 360 (4th
Cir. 2013).

24

Appeal: 14-1825

Doc: 61

For

all

Filed: 07/01/2015

these

reasons,

Pg: 25 of 40

we

vacate

the

district

court’s

judgment granting CBAC Gaming’s motion to dismiss, and remand
for further proceedings consistent with this opinion. 9

IV.
The

district

Claims Against The City

court

dismissed

the

§

6972(a)(1)(A)

and

(a)(1)(B) claims against the City for failure to state a claim.
As noted, to survive a Rule 12(b)(6) motion, “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’”

Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at
570).

This standard requires the complaint to do more than

plead facts that are “‘merely consistent with’ a defendant’s
liability,” but must “allow[] the court to draw the reasonable
inference

that

the

defendant

is

liable

for

the

alleged.”

Id. (quoting Twombly, 550 U.S. at 557).

misconduct
A complaint

should “not be dismissed as long as [it] provides sufficient
detail about [the] claim to show that [the plaintiff] has a
9

CBAC Gaming urges us to affirm the district court’s
decision on the alternative basis that it would be appropriate
to dismiss the claims against it under a Rule 12(b)(6) analysis
that concluded the Complaint failed to adequately allege each
component of a § 6972(a)(1)(A) and (B) claims.
Given our
disposition of the claims against the City and Maryland
Chemical, and that we have limited our analysis to those matters
addressed by the district court with respect to each defendant
and claim, we will similarly limit our review of the claims
against CBAC Gaming.
25

Appeal: 14-1825

Doc: 61

Filed: 07/01/2015

Pg: 26 of 40

more-than-conceivable chance of success on the merits.”

Owens

v. Balt. City State’s Attorneys Office, 767 F.3d 379, 396 (4th
Cir. 2014).

A.

Section 6972(a)(1)(A) Claim

The Complaint alleges the City’s “acts and/or omissions”
with respect to the Casino Site failed to comply with RCRA, in
violation of § 6972(a)(1)(A).

(J.A. 32.)

Concluding that the

Complaint contained inadequate factual allegations and details
pertaining to the alleged contamination at the Casino Site and
its potential migration off site, the district court dismissed
the Complaint for failure to state a claim under Rule 12(b)(6).
(J.A. 86.)

In doing so, the court cited three specific pleading

deficiencies:

that

the

Complaint

(1)

did

not

contain

any

“factual allegations to explain how the removal of contaminated
soil

and/or

sources

of

potential

contaminants

actually

exacerbated or contributed to contamination at the Site”; (2)
did not provide any “factual details pertaining to the alleged
storage

and/or

identified

the

abandonment
specific

of

leaky

contaminants

drums,

[nor

associated

had
with

it]
that

alleged ‘disposal’”; and (3) did not plausibly allege facts to
support “that the migration of contaminants at the Site occurred
during the City’s ownership of the Site.”

26

(J.A. 86.)

Appeal: 14-1825

Doc: 61

Filed: 07/01/2015

Pg: 27 of 40

Goldfarb argues on appeal that the district court erred
because the Complaint alleges specific facts, which if proven,
would

support

the

City’s

liability

under

RCRA.

The

City

responds that since the only acts the Complaint alleges it to
have undertaken involve the removal of contamination from the
Casino Site, there is no set of facts under which it could be
liable

for

transporting,

generating,
or

disposing

handling,
of

treating,

hazardous

or

storing,

solid

waste

as

required by RCRA.
We

agree

with

Goldfarb

that

the

Complaint

sufficiently

alleges an ongoing § 6972(a)(1)(A) violation so as to survive a
motion

to

dismiss.

The

shortcomings

the

district

court

identified either do not exist or did not have to be pled to
state a claim at this stage of the proceedings.
To state a claim under subsection (a)(1)(A), Goldfarb had
to

allege

an

ongoing

“violation

of

any

permit,

standard,

regulation, condition, requirement, prohibition, or order which
has become effective pursuant to” RCRA.

In Paragraphs 91-93,

the Complaint alleges the City “allowed illegally stored and/or
abandoned
and/or

drums

containing

otherwise

release

hazardous

into

the

wastes

Casino

to

leak,

Site”;

spill

“excavated,

moved, mixed, stockpiled, backfilled and/or graded contaminated
soils

and

groundwater”;

backfill[ed];

and/or

and

“excavat[ed],

grad[ed]
27

mov[ed];

contaminated

soils

mix[ed];
and/or

Appeal: 14-1825

Doc: 61

Filed: 07/01/2015

Pg: 28 of 40

groundwater located in and around known hot spots of PCE, TCE
and heavy metals.”

(J.A. 28.)

Paragraphs 94-99 allege various

activities CBAC Gaming is alleged to have undertaken as part of
the casino-related construction, and although CBAC Gaming is the
primary developer, the City owns some of the property on which
those activities are occurring.

Paragraph 101 asserts that the

City has
caused, contributed to and/or exacerbated and will
continue to cause, contribute to and/or exacerbate the
contamination in the soils and groundwater at the
Casino Site and the Waterfront Parcels and the ongoing
migration of contamination off-site by, among other
things, excavating, moving and mixing hot spots of
contamination and/or exposing contaminants in and
under the Casino Site and the Waterfront Parcels to
increased infiltration of rain water.
(J.A. 29-30.)
The
subsection

Complaint
(a)(1)(A)

ties

these

by

alleging:

allegations
that

the

specifically
City’s

to

activities

make it “the current owner[] and operator[] of an unpermitted
hazardous

waste,

treatment,

storage

or

disposal

facility”

(¶

117, J.A. 32); that the City “generated ‘solid waste’ and/or
‘hazardous waste’” without complying with applicable standards
(¶¶ 118, 122, J.A. 33); that the City’s construction activities
entailed the treatment, storage, and/or disposal of hazardous
waste at the Casino Site, and that the City lacked the requisite
permits for owning and operating such a facility (¶¶ 120, 123,
124, J.A. 33-34); and that the above violations “have never been
28

Appeal: 14-1825

Doc: 61

remedied

and

Filed: 07/01/2015

therefore,

are

Pg: 29 of 40

ongoing”

(¶

125,

J.A.

34).

In

conjunction with these allegations, the Complaint cites specific
rules

promulgated

pursuant

to

RCRA,

apply to the City’s activities.

which

Goldfarb

contends

(J.A. 32-34.)

The foregoing paragraphs in the Complaint assert specific,
identifiable
violated

actions

attributed
mandates,

RCRA-based

to

the

have

City

gone

that

allegedly

uncorrected,

and

continue unabated such that the City is still “in violation of”
those

mandates.

(a)(1)(A)’s
which

Inc.,

484

have

requirement

arises

language.

We

from

only

of

the

an

briefly
ongoing

statute’s

“to

touched
or
be

on

subsection

current

violation,

in

violation

of”

In Gwaltney of Smithfield v. Chesapeake Bay Found.,
U.S.

49

(1987),

the

Supreme

Court

interpreted

identical language in the CWA to require that for the alleged
harm to be cognizable, it must “lie[] in the present or the
future, not in the past.”

Id. at 59.

That is to say, “to be in

violation” does not cover “[w]holly past actions,” but rather
requires
violation.”

allegations

of

Id. at 57.

a

“continuous

or

intermittent

We find it logical and appropriate to

apply the same meaning to § 6972(a)(1)(A)’s “to be in violation
of” requirement.
the same.
F.3d

993,

Indeed, other federal circuit courts have done

E.g., Parker v. Scrap Metal Processors, Inc., 386
1010

6972(a)(1)(A)’s

n.20

“to

be

(11th
in

Cir.

violation
29

2004)
of”

(interpreting
requirement

§

under

Appeal: 14-1825

Doc: 61

Filed: 07/01/2015

Pg: 30 of 40

Gwaltney to require “a continuous or ongoing violation . . . for
liability

to

attach”);

Conn.

Coastal

Fishermen’s

Ass’n

v.

Remington Arms Co., Inc., 989 F.2d 1305, 1315-16 (2d Cir. 1993)
(same).
At the same time, we agree with the Second Circuit’s view
that the § 6972(a)(1)(A) “to be in violation of” language does
not necessarily require that a defendant be currently engaged in
the

activity

causing

the

continuous

or

ongoing

violation.

Rather, the proper inquiry centers on “whether the defendant’s
actions -- past or present -- cause an ongoing violation of
RCRA.”
2000);

S. Rd. Assocs. v. IBM Corp., 216 F.3d 251, 255 (2d Cir.
accord

§

6972(a)(1)(A).

In

other

words,

although

a

defendant’s conduct that is causing a violation may have ceased
in the past, for § 6972(a)(1)(A) purposes, what is relevant is
that

the

“turns

on

violation
the

is

wording

continuous
of

the

or

ongoing.

[permit,

That

standard,

inquiry

regulation,

condition, requirement, prohibition, or order]” the defendant is
alleged to “be in violation” of.

S. Rd. Assocs., 216 F.3d at

255.
In the case at bar, some of the City’s alleged actions
occurred in the past and some are ongoing, but the purported
violations

of

“any

permit,

standard,

regulation,

condition,

requirement, prohibition, or order” promulgated under RCRA are
alleged to be “ongoing.”

(J.A. 32-34.)
30

The district court will

Appeal: 14-1825

Doc: 61

Filed: 07/01/2015

Pg: 31 of 40

need to consider this distinction in the context of the specific
facts

developed

issue.

Whether

allegations

--

on

remand

Goldfarb

and
can

including

the

particular

ultimately

whether

regulations

at

prove

there

his

numerous

are

any

ongoing

violations -- is premature for resolution at this early stage of
the litigation.

For present purposes, all the Complaint needed

to do was “provide[] sufficient detail about [the] claim to show
that

[the

plaintiff]

has

success on the merits.”
particularly

through

a

more-than-conceivable

Owens, 767 F.3d at 396.
the

above-cited

chance

of

The Complaint,

paragraphs,

does

so.

Consequently, the district court erred in granting the motion to
dismiss, and we vacate the district court’s judgment as to these
claims and remand for further proceedings consistent with this
opinion.

B.

Section 6972(a)(1)(B) Claim

Relying on substantially the same alleged conduct recounted
above,

the

Complaint

also

alleged

the

City

violated

§

6972(a)(1)(B) by pleading it “contributed to the imminent and
substantial
Waterfront

endangerment
Parcels”

by

present

at

exacerbating

the

Casino

known

Site

and

the

contamination

and

taking no action to curtail its continued migration.
36.)

The

district

court

concluded

the

Complaint

(J.A. 35“failed

to

state any plausible factual allegations with respect to disposal
31

Appeal: 14-1825

Doc: 61

Filed: 07/01/2015

Pg: 32 of 40

of hazardous waste (as opposed to removal of contaminated soil
and

other

remedial

activities)”

and

(a)(1)(B) claim under Rule 12(b)(6).

dismissed

the

subsection

(J.A. 90.)

Goldfarb contends this, too, was error, arguing the court
improperly focused exclusively on “disposal of hazardous waste”
when

the

statute

also

permits

claims

based

on

“handling,

storage, . . . or disposal of any solid or hazardous waste.”
Cf. § 6972(a)(1)(B).
Complaint
pled.

where

Goldfarb points to the paragraphs in the

violations

for

“handling”

and

“storage”

are

In addition, he argues that “disposal” has a broader

statutory definition than the district court recognized, and the
Complaint

adequately

component

of

allegations

in

the
the

alleges
statute

a

claim

as

well.

Complaint,

based

just

on

Pointing

Goldfarb

asserts

that

to

it

one

various

adequately

“alleges how [the City is] handling, storing, disposing, etc.,
the waste . . . by removing leaky drums and underground storage
tanks containing such waste as well as by mixing, moving, etc.
contaminated soil, subsoil, and groundwater.”
46.)

(Opening Br. 45-

Goldfarb maintains these allegations were sufficient to

survive a motion to dismiss.
The Complaint had to plausibly allege that the City “has
contributed or . . . is contributing to the past or present
handling, storage, treatment, transportation, or disposal of any
solid

or

hazardous

waste

which
32

may

present

an

imminent

and

Appeal: 14-1825

Doc: 61

substantial

Filed: 07/01/2015

endangerment

to

Pg: 33 of 40

health

survive a Rule 12(b)(6) motion.

or

the

environment”

§ 6972(a)(1)(B).

to

The district

court only addressed two components of this claim: contribution
and disposal.

It first concluded –- in Goldfarb’s favor –- that

the

alleged

Complaint

would
may

constitute

give

rise

activities

“contribution,”

to

that

other

i.e.,

liability.”

(J.A.

courts

90.)

held

conduct

“‘active’

had

that

Nonetheless,

the

district court concluded that the Complaint failed to state a
claim

because

active

conduct

it

did

not

adequately

constituted

“disposal

allege
.

.

.

that
(as

the

City’s

opposed

to

removal of contaminated soil and other remedial activities) at
the Site.”

(J.A. 90.)

We find that, here, the district court

erred.
As

Goldfarb

points

out,

that

aspect

of

a

subsection

(a)(1)(B) claim can be satisfied by alleging “handling, storage,
treatment, transportation, or disposal,” and the district court
only noted the absence of “disposal.”

(Emphasis added.)

was

the

error

because,

at

a

minimum,

Complaint

This

alleges

affirmative acts by the City that consist of both “handling” and
“disposal.”

“Handling” is not defined in the relevant statute

or regulations, but its ordinary definition is broad, “[t]he
action or an act of dealing with a . . . thing; treatment;
management[.]”

Oxford English Dictionary.

“Disposal,” which is

defined by regulation, is similarly expansive: “the discharge,
33

Appeal: 14-1825

Doc: 61

Filed: 07/01/2015

Pg: 34 of 40

deposit, injection, dumping, spilling, leaking, or placing of
any solid waste or hazardous waste into or on any land or water
so that such solid waste or hazardous waste or any constituent
thereof may enter the environment or be emitted into the air or
discharged into any waters, including ground waters.”

40 C.F.R.

§ 260.10; COMAR 26.13.01.03.
As discussed in the context of the subsection (a)(1)(A)
claim

against

the

City,

paragraphs

91-93

and

137

of

the

Complaint allege that the City engaged in various activities on
the Casino Site that would involve “handling” or “disposal.”
These activities include allowing leaks, spills, and releases of
hazardous or solid waste to occur on the property; excavating
and mixing contaminated soil and groundwater; “addressing” and
“remov[ing]” contaminated items from the property in a manner
that

“exacerbated

the

known

contamination

at

and

under

the

Casino Site and/or the off-site migration of contamination in
the

soils,

soil

vapors

and/or

groundwater.”

(J.A.

28,

36.)

These paragraphs of the Complaint also identify a specific time
period during which the activities are alleged to have occurred
and some of the chemical substances involved.
The City appears to assert the misdirected response that
since

its

challenged

conduct

occurred

as

part

of

its

well-

intentioned efforts to remediate contamination, its actions are
immune from liability under § 6972(a)(1)(B).
34

Not so.

Hazardous

Appeal: 14-1825

Doc: 61

Filed: 07/01/2015

Pg: 35 of 40

waste can be improperly spread, and contamination exacerbated,
even during remediation efforts.

A party can violate subsection

(a)(1)(B) regardless of the reasons for the actions it takes.
Of course, whether Goldfarb can ultimately prove the allegations
and prevail on his claim is not a matter upon which we can or do
speculate, as that is a task for the district court in the first
instance.
motion

to

What

is

dismiss

relevant

juncture

in

is

reviewing

that

the

the

claims

Complaint

at

sets

the

forth

conduct that could plausibly, if proven, constitute “handling”
or “disposal.”

As such, the Complaint adequately alleges this

component of a subsection (a)(1)(B) claim.
The City argues that despite any such error by the district
court,

we

dismissal

could
of

this

nonetheless

affirm

the

claim

on

Complaint’s

based

the

district

court’s

failure

to

adequately allege the other aspects of a § 6972(a)(1)(B) claim.
To be sure, we could affirm on different grounds if supported
fully by the record.
Corp.,

33

F.3d

355,

See Brewster of Lynchburg, Inc. v. Dial
361

n.3

(4th

Cir.

1994).

But

nothing

requires us to do so, and we decline to engage in such lengthy
alternative analyses here.

See Singleton v. Wulff, 428 U.S.

106, 120 (1976) (“It is the general rule, of course, that a
federal appellate court does not consider an issue not passed
upon below.”).

The district court is in a better position to

consider the parties’ arguments in the first instance, which can
35

Appeal: 14-1825

Doc: 61

Filed: 07/01/2015

Pg: 36 of 40

be presented at length rather than being discussed in appellate
briefs centered on the issues the district court did decide.
Because the district court’s analysis was incorrect insofar as
it went, we vacate its judgment granting the motion to dismiss
as to the City.

We remand to the district court for further

proceedings consistent with this opinion.

V.

Claim Against Maryland Chemical

The district court also dismissed the only claim against
Maryland

Chemical

--

brought

failure to state a claim.

under

§

6972(a)(1)(B)

--

for

The court reasoned that because the

statute requires that a defendant “contribute” to the solid or
hazardous

waste

defendant

at

issue,

affirmatively

contamination

in

order

the

acted
to

complaint
to

survive

must

create

a

motion

or
to

allege

the

cause

the

dismiss.

It

concluded that alleging “spilling, releasing, and/or disposing
of hazardous wastes” did not satisfy this requirement because
those

incidents

could

occur

“without

participation” by Maryland Chemical.

any

active

human

(J.A. 89.)

Goldfarb contends that the district court erred because the
Complaint alleges that Maryland Chemical’s past operations on
the Russell Street Properties led to the current contamination
at that site, which is migrating to the Waterfront Parcels and
the

Middle

Branch.

He

posits
36

that

the

Complaint

thus

Appeal: 14-1825

Doc: 61

Filed: 07/01/2015

Pg: 37 of 40

sufficiently pled Maryland Chemical’s “contribution” so as to
state a claim under § 6972(a)(1)(B).

We agree.

Although we have not previously opined as to the meaning of
§ 6972(a)(1)(B)’s “contribution” requirement, we are bound to
interpret undefined statutory terms according to their “ordinary
meaning.”

Russello v. United States, 464 U.S. 16, 21 (1983)

(stating congressional “silence compels us to ‘start with the
assumption

that

the

legislative

purpose

is

expressed

by

the

meaning of the words used’” (quoting Richards v. United States,
369 U.S. 1, 9 (1962)).

Consistent with that guidance, other

federal circuit courts have looked to the dictionary definition
of “contribute” to conclude that term for RCRA purposes means
that a defendant must “be actively involved in or have some
degree of control over,” “have a share in any act or effect,” or
“act as a determining factor.”
654

F.3d

846,

850-51

(9th

Hinds Invs., L.P. v. Angioli,

Cir.

2011);

Sycamore

Indus.

Parks

Assocs. v. Ericsson, Inc., 546 F.3d 847, 854 (7th Cir. 2008);
Cox v. City of Dallas, 256 F.3d 281, 294 (5th Cir. 2001); United
States v. Aceto Agric. Chems. Corp., 872 F.2d 1373, 1384 (8th
Cir.

1989).

We

adopt

this

interpretation,

which

therefore

requires a defendant’s active conduct on -- rather than passive
connection

to

--

the

property

in

order

contributor for § 6972(a)(1)(B) purposes.
Parks, 546 F.3d at 854.
37

to

be

deemed

a

See Sycamore Indus.

Appeal: 14-1825

Doc: 61

Filed: 07/01/2015

The

Complaint

Maryland

adequately

Chemical.

Pg: 38 of 40

alleges

Paragraphs

49-51

such
allege

conduct
that

as

to

Maryland

Chemical engaged in “chemical manufacturing and/or bulk chemical
storage, repackaging and distribution purposes” for over five
decades, and that its “past operations at the Russell Street
Properties

resulted

in

spills

and

releases

of

hazardous

substances and/or hazardous wastes including, but not limited
to”

four

specific

Properties.

spills

on

(J.A. 18-19.)

portions

of

the

Russell

Street

Paragraph 51 alleges the specific

lots on the Russell Street Properties where the spills occurred,
and the types of chemicals involved.

(J.A. 19.)

Paragraph 134,

in turn, alleges that Maryland Chemical’s “past operations”
contributed
to
the
imminent
and
substantial
endangerment to human health and the environment which
is present at the Casino Site and the Waterfront
Parcels by unlawfully spilling, releasing, and/or
disposing
of
hazardous
wastes
and/or
hazardous
substances in the soils and groundwater at the Casino
Site
(including,
but
not
limited
to
[hazardous
chemical compounds]) and by failing to address and/or
remediate the contamination thereafter.
(J.A. 35.)
the

claim

Accordingly, the district court erred in dismissing
against

Maryland

Chemical

for

failure

to

allege

“contribution” under § 6972(a)(1)(B). 10

10

Since the district court relied, in part, on a case
discussing “disposal” rather than “contribution,” Nurad, Inc. v.
William E. Hooper & Sons Co., 966 F.2d 837 (4th Cir. 1992), we
point out that the terms have different meanings.
Moreover,
once
the
active
component
of
“contribution”
has
been
(Continued)
38

Appeal: 14-1825

Doc: 61

Filed: 07/01/2015

Pg: 39 of 40

As the City did with respect to the subsection (a)(1)(B)
claim against

it,

Maryland

Chemical

argues

that

even

if

the

district court erred as to this one aspect of the claim, we
could affirm because the Complaint fails to adequately allege
the remaining elements of a § 6972(a)(1)(B) claim.

We decline

to engage in that analysis for the same reasons we limited our
review above.
as

to

We therefore vacate the district court’s judgment

Maryland

Chemical

and

remand

this

claim

for

further

proceedings consistent with this opinion.

VI.
For
court’s

the

reasons

judgment

stated

dismissing

above,
all

of

we

vacate

Goldfarb’s

the
RCRA

district
claims

established, the “handling, storage, treatment, transportation,
or disposal” component of the claim presents a separate
requirement subject to a different analysis.
For present purposes, we note that RCRA defines “disposal”
to mean “the discharge . . . dumping, spilling, leaking, or
placing of any solid waste or hazardous waste into or on any
land or water so that such solid waste or hazardous waste may
enter the environment or be emitted into the air or discharged
into any waters, including ground waters.” § 6903(3) (emphases
added).
As we observed in Nurad, some of these definitions
“appear to be primarily of an active voice,” while others
“readily admit to a passive component: hazardous waste may leak
or spill without any active human participation.
[It]
arbitrarily deprive[s] these words of their passive element [to]
impos[e] a requirement of active participation as a prerequisite
to” adequately alleging the “disposal” component of a claim.
966 F.2d at 845.
Thus, the above-recited language of the
Complaint also sufficiently alleges the disposal element of a §
6972(a)(1)(B) claim.
39

Appeal: 14-1825

Doc: 61

Filed: 07/01/2015

Pg: 40 of 40

against CBAC Gaming, the City, and Maryland Chemical and remand
the case for further proceedings consistent with this opinion.

VACATED AND REMANDED

40