Goldfarb v. Mayor & City Council of Balt.

• Citation: 791 F.3d 500
• Decision Date: 01 July 2015
• Docket Number: No. 14–1825.,14–1825.
• Parties: Bruce GOLDFARB ; Michael Gallagher, Plaintiffs–Appellants, and Ruth Sherrill; Elizabeth Arnold; Merab Rice; Sherry Moore–Edmonds; 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.
• Court: U.S. Court of Appeals — Fourth Circuit

791 F.3d 500

Bruce GOLDFARB ; Michael Gallagher, Plaintiffs–AppellantsandRuth Sherrill; Elizabeth Arnold; Merab Rice; Sherry Moore–Edmonds; 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.

No. 14–1825.

United States Court of Appeals, Fourth Circuit.

Argued: March 25, 2015.

Decided: July 1, 2015.

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

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

Opinion

Vacated and remanded by published opinion. Judge AGEE wrote the opinion, in which Chief Judge TRAXLER and Judge KING joined.

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). Several Maryland residents brought statutory claims under the RCRA against the current and former owners of an industrial property in Baltimore alleged to have been contaminated by hazardous waste. The district court granted the property owners' motions to dismiss the claims. For the reasons set forth below, we vacate the district court's judgment and remand for further proceedings.

I.¹

In 2012, the City of Baltimore² (“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 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 Co., Inc. (“Maryland Chemical”) previously owned the Russell Street Properties, where it conducted “chemical manufacturing and/or bulk chemical storage, repackaging and distribution” for approximately fifty years. (J.A. 18.)

The City also owns adjacent property (the “Waterfront Parcels”) located between the Casino Site and the Middle Branch of the Patapsco River. Given the topography of the area, the Casino Site and Waterfront Parcels “slope [ ] downward to the southeast” until reaching the shoreline of the river. (J.A. 17.) 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 Bull (collectively “Goldfarb”) allege that hazardous waste contaminates portions of the Casino Site and has been migrating to the Waterfront Parcels and Middle 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 Rule 12(b) of the Federal Rules of Civil Procedure. The district court granted the motions as to all claims against all defendants, though its specific reasoning was sometimes imprecise and it varied as to each defendant and claim. More will be said about the court's specific rationales below.⁴

Goldfarb timely appeals from the district court's order dismissing the Complaint. We have jurisdiction under 28 U.S.C. § 1291.

II.

“RCRA is a comprehensive environmental statute that governs the treatment, storage, and disposal of solid and hazardous waste.” Meghrig v. KFC W., Inc., 516 U.S. 479, 483, 116 S.Ct. 1251, 134 L.Ed.2d 121 (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 and future threat to human health and the environment.’ ” Id. at 483, 116 S.Ct. 1251 (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 the Administrator of the EPA has chief responsibility for implementing and enforcing RCRA, “private citizens [can] enforce its provisions in some circumstances.” Meghrig, 516 U.S. at 484, 116 S.Ct. 1251 (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 violation, whereas a suit under (a)(1)(B) may be predicated on a [qualifying] past [or present] violation.” Sanchez v. Esso Standard Oil Co., 572 F.3d 1, 7 (1st Cir.2009) (emphases added); see discussion infra Section IV.A. As their plain language indicates, each subsection contains different elements and targets somewhat different conduct.

Subsection (a)(1)(A) authorizes so-called “permitting violation claims” to be brought against a defendant who is alleged “to be [currently] in violation” of a 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 standard that became 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 and implement 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. See Notice of Final Determination on Maryland's 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 to enforce the “permit, standard, regulation, condition, requirement, prohibition, or order” at issue. § 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 pose an “imminent and substantial endangerment to health or the environment.” In contrast to claims brought under subsection (a)(1)(A), claims under 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 court has authority to restrain 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” 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.” § 6972(a).

We review de novo both the district court's Rule 12(b) dismissal and its statutory interpretation. Pitt Cnty. v. Hotels.com, L.P., 553 F.3d 308, 311 (4th Cir.2009) (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 undertakings did not comply with RCRA and so did not adequately address contamination at the Casino Site. Furthermore, the Complaint alleged that CBAC's Casino Site construction activities would continue to contribute to 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,...