Environmental — CWA Permits No Bar to RCRA Claims

Goldfarb v. Mayor and City Council of Baltimore (Lawyers Weekly No. 15-01-0687, 40 pp.) (Agee, J.) No. 14-1825, July 1, 2015; USDC at Baltimore, Md. (Bennett, J.) 4^th Cir.

Holding: In plaintiff Maryland residents’ suit under the Resources Conservation and Recovery Act against current and former owners of an industrial property in Baltimore allegedly contaminated by hazardous waste, the district court erred in granting the property owners’ motions to dismiss the statutory claims; the 4^th Circuit says

RCRA is a comprehensive environmental statute that governs the treatment, storage and disposal of solid and hazardous waste. To grant the motion under Rule 12(b)(6), the district court would have to conclude that the RCRA, 42 U.S.C. § 6905(a), barred an RCRA cause of action as pled against defendant CBAC Gaming LLC because enforcement of RCRA would be “inconsistent” with the Clean Water Act in this matter. 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 subject casino site pursuant to the CWA (via the National Pollutant Discharge Elimination System permit and the documents it incorporated).

To be “inconsistent” for purposes of § 6905(a), the CWA must require something fundamentally at odds with what the RCRA would otherwise require. 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. Here, the district court’s 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 circumstances. 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 “further” under RCRA would be inconsistent with the CWA. More was required. We vacate and remand the district court decision, if based on Rule 12(b)(6), for failure to identify how the complaint’s RCRA allegations are “inconsistent” with the CWA.

City Faces Claims

We also vacate dismissal of plaintiffs’ § 6972(a)(1)(A) and (a)(1)(B) claims against the city for failure to state a claim. We agree with plaintiff that the complaint sufficiently alleges an ongoing § 6972(a)(1)(A) violation so as to survive dismissal. The complaint alleges the city allowed illegally stored and/or abandoned drums containing hazardous wastes to leak, spill and/or otherwise release into the casino site; excavated, moved, mixed, stockpiled, backfilled and/or graded contaminated soils and groundwater; and excavated or otherwise moved or mixed contaminated soils and/or groundwater located in and around known hot spots of PCE, TCE and heavy metals. The complaint alleges 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. Plaintiff asserts specific, identifiable actions attributed to the city that allegedly violated RCRA-based mandates, have gone uncorrected and continue unabated such that the city is still “in violation of” those mandates.

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 violation is continuous or ongoing. Here, some of the city’s alleged actions occurred in the past and some are ongoing.

The district court also erred in dismissing plaintiff’s § 6972(a)(1)(B) claim on the ground that it did not adequately allege that the city’s active conduct constituted “disposal,” as opposed to removal of contaminated soil and other remedial activities at the site. The complaint alleges affirmative “handling” and “disposal” acts by the city that include allowing leaks, spills and releases of hazardous or solid waste to occur on the property; excavating and mixing contaminated soil and groundwater; and removing contaminated items in a manner that exacerbated known contamination. The complaint also identifies a specific time period during which the activities are alleged to have occurred and some of the chemical substances involved.

Finally, the district court also erred in dismissing the only claim against Maryland Chemical under § 6972 (a)(1)(B). We agree the complaint is sufficient under § 6972(a)(1)(B)’s “contribution” requirement in its allegations that Maryland Chemical’s past operations on certain properties led to the current contamination at that site, which is migrating to additional parcels. We adopt the interpretation of “contribution” to require a defendant’s active conduct on – rather than passive connection to – the property in order to be deemed a “contributor.”

Vacated and remanded.