Bruce Goldfarb v. Mayor and City Council of Baltimore

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 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.

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,

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

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 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

1Given 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

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.

3

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

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

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

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 (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 (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

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

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 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

7

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

8

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

9

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, storing, disposing of, and transporting hazardous

wastes without the requisite permits. In 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 under RCRA’s anti-duplication

provision, 42 U.S.C. § 6905(a). According to CBAC Gaming, its

National Pollutant Discharge Elimination System (“NPDES”)

permit, which permitted discharge of stormwater during

construction of the casino, shielded it from RCRA liability.

10

The district court granted CBAC Gaming’s motion to dismiss

based on that general defense. The court’s analysis was

somewhat convoluted, but tracked the following course: Under

RCRA’s anti-duplication provision, activities regulated by the

Clean Water Act (“CWA”) cannot also be regulated by RCRA if

enforcement of both Acts would lead to inconsistent

requirements. See § 6905(a). The CWA regulates, among other

things, the discharge of pollutants from point sources into

navigable waters. 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. Those plans,

in turn, mandated that CBAC Gaming comply with specific

remediation activities set forth in a Response Action Plan

(“RAP”) that CBAC Gaming voluntarily performed as part of its

participation in Maryland’s Voluntary Cleanup Program. As a

result, the remediation activities contained in the 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 Site, but also covered CBAC Gaming’s other

construction activities at the Casino Site by virtue of the

11

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 under RCRA since “further remedial requirements

imposed under RCRA would be inconsistent with the remedial

activities already deemed appropriate for the [Casino] Site”

under the NPDES permit. (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) or Rule 12(b)(6). Recognizing the district

court’s lack of clarity on this point, the parties devote

considerable space on brief to threshold issues 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 provision implicates subject matter

jurisdiction. What is more, our inquiry would not 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

the proceeding to one for summary judgment. However, when the

jurisdictional facts are inextricably 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. Accord Fed. R. Civ. P.

12(d) (specifying the process a 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 court to clarify the basis for its determination.

Here, however, we must vacate the district court’s ruling

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

13

Rule 12(b)(6) was incorrect. 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)). Absent Congress “clearly stat[ing] that a

threshold limitation on a statute’s scope shall count as

jurisdictional,” “courts should treat the restriction as

nonjurisdictional in character.” Arbaugh, 546 U.S. at 515, 516.

Assuming the district court 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 is a jurisdictional

5The 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

barrier to recovery. 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 anti-

duplication provision to prohibit plaintiff’s RCRA claims

challenging identical activities authorized by a CWA-based

permit). 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 their complaint will be

15

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. Citizens for Better Env’t, 523 U.S. 83, 89

(1998))). Viewed through this lens, the 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 exception to employment discrimination claims

was “a jurisdictional bar or a defense on the 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 the plaintiff makes entitle him to relief,’ not

whether the court has ‘power to hear the case’” (internal

quotation marks and alterations omitted)). Accordingly, it

would have been error to dismiss the Complaint against CBAC

Gaming for lack of subject matter jurisdiction pursuant to Rule

16

12(b)(1) because a defense to liability under RCRA based on §

6905(a) does not implicate jurisdiction.

B. Rule 12(b)(6)

In a Rule 12(b)(6) context, the reviewing court must

determine whether the complaint alleges sufficient 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.” Brockington v. Boykins, 637 F.3d

503, 505 (4th Cir. 2011); see also Clatterbuck v. City of

Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013). 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. See Tobey v. Jones, 706 F.3d 379, 387 (4th

Cir. 2013) (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. See Fed. R.

Civ. P. 12(d) (discussing when conversion occurs and what

17

process must be followed to make it proper); see also Zak, 780

F.3d at 606-07 (discussing when extrinsic materials may be

considered without implicating Rule 12(d)). For example, a

court may properly take judicial notice of “matters of public

record” and other information that, under Federal Rule of

Evidence 201, constitute “adjudicative facts.” 6 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

case.” Fed. R. Evid. 201, Advisory Committee’s note.

18

provision because it could have properly taken judicial notice

of each of the exhibits it relied on as the basis for its

analysis. 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 CBAC Gaming maintains that once

the district court in effect took judicial notice of those

exhibits and their contents, it was free to interpret their

meaning and draw legal conclusions. 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 or provide Goldfarb with notice and an

opportunity to respond. Furthermore, Goldfarb contends 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

Goldfarb is correct at least to the extent that the

district court did not explicitly state that it was 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. There are two reasons for this

conclusion: First, regardless of how the district 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

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 compatible with another fact or claim.”); Oxford

English Dictionary (“at variance, discordant, in compatible,

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

then, the CWA must require something fundamentally at odds with

what RCRA would otherwise require. See Edison Elec. Inst. v.

EPA, 996 F.2d 326, 337 (D.C. Cir. 1993) (rejecting anti-

duplication provision argument where petitioners were “unable to

point to any direct conflict between” RCRA and another act

listed in § 6905(a)). 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 district court recited the statutory term

“inconsistent,” it undertook no analysis in its opinion to

determine whether a conflict actually existed between the

applicable RCRA regulations and the CWA, much less what

constituted such a conflict. Instead, the district court’s

21

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 required anything of CBAC

8 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

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 “further” under RCRA

would be “inconsistent” with the CWA. As set forth above, more

was required. We therefore vacate 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. But in so doing, we also note that the procedural

posture of 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. The

maze of cross-references to exhibits and interpretations of

specific provisions within them makes this case 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 alone

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

complaint” such that the defense could be the basis for

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

Furthermore, the parties vehemently disagree about the

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 mindful that judicial notice must not “be used as an

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

For all these reasons, 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. Claims Against The City

The district 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 misconduct

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

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 abandonment of leaky drums, [nor had it]

identified the specific contaminants associated with 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.” (J.A. 86.)

26

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 generating, handling, treating, storing,

transporting, or disposing of hazardous or 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 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 “excavat[ed], mov[ed]; mix[ed];

backfill[ed]; and/or grad[ed] contaminated soils and/or

27

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 Complaint ties these allegations specifically to

subsection (a)(1)(A) by alleging: that the City’s 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

remedied and therefore, are ongoing” (¶ 125, J.A. 34). In

conjunction with these allegations, the Complaint cites specific

rules promulgated pursuant to RCRA, which Goldfarb contends

apply to the City’s activities. (J.A. 32-34.)

The foregoing paragraphs in the Complaint assert 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. We have only briefly touched on subsection

(a)(1)(A)’s requirement of an ongoing or current violation,

which arises from the statute’s “to be in violation of”

language. In Gwaltney of Smithfield v. Chesapeake Bay Found.,

Inc., 484 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 allegations of a “continuous or intermittent

violation.” Id. at 57. We find it logical and appropriate to

apply the same meaning to § 6972(a)(1)(A)’s “to be in violation

of” requirement. Indeed, other federal circuit courts have done

the same. E.g., Parker v. Scrap Metal Processors, Inc., 386

F.3d 993, 1010 n.20 (11th Cir. 2004) (interpreting §

6972(a)(1)(A)’s “to be in violation of” requirement under

29

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

2000); 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 violation is continuous or ongoing. That inquiry

“turns on the wording of the [permit, standard, 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.) The district court will

30

need to consider this distinction in the context of the specific

facts developed on remand and the particular regulations at

issue. Whether Goldfarb can ultimately prove his numerous

allegations -- including whether there 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 a more-than-conceivable chance of

success on the merits.” Owens, 767 F.3d at 396. The Complaint,

particularly through the above-cited 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 endangerment present at the Casino Site and the

Waterfront Parcels” by exacerbating known contamination and

taking no action to curtail its continued migration. (J.A. 35-

36.) The district court concluded the Complaint “failed to

state any plausible factual allegations with respect to disposal

31

of hazardous waste (as opposed to removal of contaminated soil

and other remedial activities)” and dismissed the subsection

(a)(1)(B) claim under Rule 12(b)(6). (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). Goldfarb points to the paragraphs in the

Complaint where violations for “handling” and “storage” are

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

statutory definition than the district court recognized, and the

Complaint adequately alleges a claim based just on that one

component of the statute as well. Pointing to various

allegations in the Complaint, Goldfarb asserts it 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.” (Opening Br. 45-

46.) 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 may present an imminent and

32

substantial endangerment to health or the environment” to

survive a Rule 12(b)(6) motion. § 6972(a)(1)(B). The district

court only addressed two components of this claim: contribution

and disposal. It first concluded –- in Goldfarb’s favor –- that

the Complaint alleged activities that other courts had held

would constitute “contribution,” i.e., “‘active’ conduct that

may give rise to liability.” (J.A. 90.) Nonetheless, the

district court concluded that the Complaint failed to state a

claim because 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.” (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.) This

was error because, at a minimum, the Complaint 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

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). Not so. Hazardous

34

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. What is relevant in reviewing the claims at the

motion to dismiss juncture is that the Complaint sets 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 could nonetheless affirm the district court’s

dismissal of this claim based on the Complaint’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. See Brewster of Lynchburg, Inc. v. Dial

Corp., 33 F.3d 355, 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

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 under § 6972(a)(1)(B) -- for

failure to state a claim. The court reasoned that because the

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

hazardous waste at issue, the complaint must allege the

defendant affirmatively acted to create or cause the

contamination in order to survive a motion to dismiss. It

concluded that alleging “spilling, releasing, and/or disposing

of hazardous wastes” did not satisfy this requirement because

those incidents could occur “without any active human

participation” by Maryland Chemical. (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 that the Complaint thus

36

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.” Hinds Invs., L.P. v. Angioli,

654 F.3d 846, 850-51 (9th 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 to be deemed a

contributor for § 6972(a)(1)(B) purposes. See Sycamore Indus.

Parks, 546 F.3d at 854.

37

The Complaint adequately alleges such conduct as to

Maryland Chemical. Paragraphs 49-51 allege that 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 spills on portions of the Russell Street

Properties. (J.A. 18-19.) 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.) Accordingly, the district court erred in dismissing

the claim against Maryland Chemical for failure to allege

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

10Since 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

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. We therefore vacate the district court’s judgment

as to Maryland Chemical and remand this claim for further

proceedings consistent with this opinion.

VI.

For the reasons stated above, we vacate the district

court’s judgment dismissing all of Goldfarb’s RCRA 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

against CBAC Gaming, the City, and Maryland Chemical and remand

the case for further proceedings consistent with this opinion.

VACATED AND REMANDED

40