Cox v. City of Dallas

Revised August 6, 2001

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-11029
_____________________

HAROLD COX; SHIRLEY DAVIDSON; ROBERT STUBBLEFIELD; CYNTHIA
HERRING; ELOUISE EDWARDS; BETTY CURLEY; LEO EASTER

Plaintiffs - Appellees - Appellants

v.

CITY OF DALLAS TEXAS; ET AL

Defendants

JEFFREY A SAITAS, Executive Director of the Texas Natural
Resource Conservation Commission

Defendant - Appellee

------------------------------------------

HAROLD COX; SHIRLEY DAVIDSON; ROBERT STUBBLEFIELD; CYNTHIA
HERRING; ELOUISE EDWARDS; BETTY CURLEY; LEO EASTER

Plaintiffs - Appellees

v.

CITY OF DALLAS TEXAS; ET AL

Defendants

CITY OF DALLAS TEXAS

Defendant - Appellant
_________________________________________________________________

Appeal from the United States District Court
for the Northern District of Texas
_________________________________________________________________
 June 26, 2001

Before KING, Chief Judge, PARKER, Circuit Judge, and FURGESON,*
District Judge.

KING, Chief Judge:

Plaintiffs Harold Cox et al. filed suit against Defendant

City of Dallas, Texas and Defendant Jeffrey A. Saitas, Executive

Director of the Texas Natural Resource Conservation Commission,

alleging violations of the Resource Conservation and Recovery

Act, 42 U.S.C. § 6901 et seq. The City appeals from the district

court’s judgment granting Plaintiffs injunctive relief under

§ 6972(a)(1)(B). Plaintiffs appeal from the district court’s

judgment denying injunctive relief against Saitas. For the

following reasons, we AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case involves two consolidated citizen suits brought

pursuant to the Resource Conservation and Recovery Act (“RCRA”),

42 U.S.C. § 6901 et seq., concerning two open garbage dumps in

Dallas, Texas — an 85-acre lot located at 523 Deepwood Street

*
District Judge of the Western District of Texas, sitting
by designation.

2
(the “Deepwood dump”)1 and an adjacent 40-acre lot (the “South

Loop 12 dump”).2

Zoned for residential use, the Deepwood and South Loop 12

dumps have been used for sand and gravel mining and illegal

dumping for over twenty-five years. Substantial deposits of

uncovered solid waste, including household waste, tires,

demolition debris, insulation, asphalt shingles, abandoned

automobiles, jugs and bottles labeled “sulfuric acid” and “nitric

acid,” 55-gallon drums, and syringes, are on the properties.3 The

dumps adjoin residential neighborhoods and a tributary to the

1
The Deepwood dump is also known by the addresses 500
Deepwood Street and 300 South Jim Miller Road.
2
This dump is located directly north of the Deepwood
dump.
3
“Solid waste” includes “any garbage, refuse, sludge
. . . and other discarded material.” 42 U.S.C. § 6903(27). From
the RCRA’s inception, Congress made clear that it intended the
term “solid waste” to be viewed with a wide lens:

In addressing the problem, the Committee recognizes
that Solid Waste, the traditional term for trash or
refuse, is inappropriate. The words solid waste are
laden with false connotations. They are more narrow in
meaning than the Committee’s concern. The words
discarded materials more accurately reflect the
Committee’s interest. . . . the term discarded
materials is used to identify collectively those
substances often referred to as industrial, municipal
or post-consumer waste; refuse, trash, garbage and
sludge. . . . It should be noted that discarded
materials are generated from a multitude of sources in
every sector of the nation’s life.

H.R. REP. NO. 94-1491, Part I, at 2-3 (1976), reprinted in 1976
U.S.C.C.A.N. 6238, 6240.

3
Trinity River and are partially in the flood plain of the Trinity

River. Neither dump has been upgraded or closed according to

sanitary landfill criteria. See 42 U.S.C. § 6944(a). Residents

adjacent to the dumps report the appearance of snakes and rats in

their backyards since the beginning of the illegal dumping, and

the dumps are easily accessible to children in the neighborhood.4

Since at least 1976, the State of Texas and the City of Dallas,

Texas (the “City”) have been aware of open dumping on both sites.

A. History of the Deepwood Dump

In August 1976, officials from the Texas Natural Resource

Conservation Commission (the “TNRCC”)5 and the City’s sanitation

department visited the Deepwood dump and prepared a report that

called for continuing surveillance of the site. In 1983, the

City conducted soil and water tests at the Deepwood dump in

response to complaints from nearby residents that illegal dumping

was taking place. The City’s report and test results, which made

4
The City, in partial compliance with the district
court’s injunction in this case, has now constructed a fence
around the sites. See infra note 15 and accompanying prior text
(describing the district court’s injunction against the City).
5
Defendant Jeffrey A. Saitas is the current Executive
Director of the TNRCC, the Texas agency charged with the
responsibility of overseeing environmental laws relating to
dumping. Both the name of the relevant state agency and the
identity of the director have changed throughout the years. We
will refer to the director as “Saitas” and the agency as the
“TNRCC,” without attempting to chronicle those changes, as they
are irrelevant to this appeal. We will refer to Saitas, the
TNRCC, and the State of Texas as the “the State,” except where
necessary to make a distinction for clarity.

4
clear that the Deepwood dump was being used for the disposal of

solid waste, were sent to the State for analysis.

In 1987, the City filed suit in state court against the

owners of the Deepwood dump for dumping solid waste without a

state permit and joined the TNRCC as a necessary party. In

December 1989, the state court entered a final judgment,

requiring the Deepwood dump owners to submit and implement a plan

for closure of the site. An April 1991 inspection revealed that

the Deepwood dump had not been cleaned up or closed, and the City

filed a contempt motion. This motion was not heard by the state

court, and no further action was taken by the State or the City

to enforce the judgment.

During this time, the City contracted with Billy Nabors and

Dallas Demolition Excavating Co. (“Dallas Demolition”) to conduct

demolitions of City property. These City contractors disposed of

their debris at the Deepwood dump. The City’s contracts with

Dallas Demolition did not specify that waste materials generated

by City activities must be properly disposed of in a legal

landfill. The City was aware that Dallas Demolition dumped at

the Deepwood dump. However, even after the City’s attorneys had

learned of Dallas Demolition’s illegal acts, the City continued

to use Dallas Demolition.

Also, the City designed and implemented a plan to reclaim

the area from the flood plain by depositing fill material in the

low spots. The plan’s objective was to collect more tax revenue

5
from the area by eventually rezoning it for industrial purposes.

In 1982, Terry Van Sickle began operating the Deepwood dump with

land use and fill permits issued by the City. Van Sickle overtly

stated his intention to dump solid waste at the Deepwood dump

when he submitted his application to the City: “Fill old pits

with solid waste ‘means all putrescible and non putrescible

discarded materials or unwanted rock, dirt, metal, sand gravel

wood etc. [sic].” The City subsequently issued a certificate-of-

occupancy permit based on this application. While this

certificate stated that the use was to be for the “mining of sand

and gravel,”6 it did not specifically restrict the types of fill

material. Furthermore, the City’s Public Works Department later

granted Van Sickle “[p]ermission to fill the mined areas.” This

grant also did not restrict the types of fill material, although

Van Sickle had made his intentions clear regarding the solid

waste fill he wished to employ in the dump. In its own

documents, the City admits that “control at the site[s] has been

loose and in a few cases improper material has been used for fill

. . . [and] some approved flood plain areas have had large

amounts of decomposable material placed in them.”

At a Board of Adjustment hearing, the City considered the

impact of operations at the Deepwood dump on the community.

6
We note that, in their documents, City officials
consistently referred to Deepwood as a dump, and not as a sand or
gravel mine, quarry, or pit.

6
Although residents adjacent to the dump provided information

about the illegal dumping and the hazards at the dump and

requested that the Board put an end to the use of the dump, the

Board did not act to terminate the dumping. Plaintiffs contend

that it was in the City’s interest to continue the filling of the

land because it would further the City’s plan of elevating the

area, thus reclaiming it from the flood plain (which would then

permit the City to rezone the land for industrial use, making the

area more financially profitable for the City). Until the

district court’s injunction, the City had never revoked the

certificate-of-occupancy permit for the Deepwood site.

Herman Nethery, the current owner of the Deepwood dump,

operated an illegal open dump at the Deepwood site from 1994

through 1997. The State inspected the Deepwood dump several

times from 1995 to 1997 and discovered massive illegal dumping,

including asbestos, benzene, and medical waste.7 The State also

noted in its own reports that there was an imminent threat of the

discharge of municipal solid waste into Elam Creek, a tributary

of the Trinity River, because of the concentrated dumping. In

addition, the State observed that shingles and construction and

demolition debris at the dump may cause contamination of surface

7
The Deepwood dump had become so large that other waste
handlers, such as BFI and Waste Management, actually noticed a
decrease in the volume of solid waste they transported; after
inquiries, they discovered that the decrease stemmed from the
fact that waste was being illegally dumped at the Deepwood dump.

7
and ground water through the leaching of contaminates from the

debris by rainwater. For several months during 1988 and during

1997, the Deepwood dump caught fire and burned, and a significant

fire hazard still exists at the site.

Despite this history, in August 1994, the City granted

Nethery a permit allowing mining use of the Deepwood dump. The

City failed to follow its own procedures of issuing permits: no

inspection was conducted prior to the issuance of the permit, and

no test zone was established around the areas where illegal solid

waste had been deposited.

In 1995, the City filed suit against Nethery in state court

alleging violations of the Texas Solid Waste Disposal Act (the

“TSWDA”), and the State intervened. The state court entered

judgment against Nethery for $15,000,060. The judgment does not

require that any of the imposed civil penalties be used for

cleaning up the dump. In addition to the state civil actions,

the State criminally prosecuted Nethery and Herman Lee Gibbons,

an operator at the Deepwood dump. Both were convicted of

violating Texas organized crime laws relating to the financing of

the illegal dump, and both were incarcerated in Texas on those

charges.

The City informed the State and the United States

Environmental Protection Agency (“EPA”) that the Deepwood dump

poses long-term fire and health hazards for the neighborhood and

8
requested funds to remediate the dump. The State and the EPA

refused to provide funds to clean up the dump.

B. History of the South Loop 12 Dump

In 1964, the City entered into an agreement to use the South

Loop 12 site as a sanitary landfill. In 1972, the then-owner of

the site excluded the City from dumping because the City had not

complied with the conditions in the agreement (i.e., to cover the

refuse that it had dumped with at least eighteen inches of

compact soil). In addition, the City never canceled this

agreement. In 1989, the City and the State sued the owners of

the South Loop 12 dump in state court for violating the TSWDA.

The state court entered an Agreed Final Judgment in 1990,

ordering the owners to clean up the dump. An April 1991

inspection found that no corrective action had been taken, but

the City and State did nothing to gain compliance with the 1990

judgment.8 As was the case with the Deepwood dump, there

currently exists a substantial danger of fires from the solid

waste present on the site, and the dump is also easily accessible

to children.9 The South Loop 12 site remains an open dump, and

8
A state inspector noted: “The solid waste which is
being dumped is [on] the area on the east side along the alley
behind [the] homes. This area of waste is getting larger.”
9
But see supra note 4.

9
the State has not cleaned, and does not intend to clean up, the

site.

C. Procedural History of Current Litigation

In February 1997, Plaintiffs, homeowners in residential

areas adjoining these dumps, brought a citizens suit in federal

court against the owners of the Deepwood dump,10 the City, and

Saitas for injunctive relief under the RCRA, 42 U.S.C.

§ 6972(a)(1). This suit was consolidated with Plaintiffs’ July

1998 citizens suit against the City and Saitas regarding the

South Loop 12 dump. Plaintiffs alleged, inter alia, that the

City violated 42 U.S.C. § 6972(a)(1)(B) by “contributing to”

illegal open dumping at both sites, that Saitas failed to

classify the dumps on the EPA’s Open Dump Inventory (“ODI”), and

that Saitas failed to comply with the corresponding RCRA

obligation of cleaning up the dumps.11

10
Plaintiffs sued Nethery and Van Sickle.
11
Plaintiffs alleged that Saitas has the obligation to
classify all solid waste facilities in Texas either as open dumps
or sanitary landfills, to list the open dumps on the ODI, and to
take the steps necessary to close or upgrade the open dumps in
compliance with federal sanitary landfill criteria. Plaintiffs’
arguments distill to the following core complaint: Saitas
deliberately chose not to classify, close, or upgrade the
illegal, unauthorized solid waste facilities in Texas (i.e., the
Deepwood and South Loop 12 dumps) according to RCRA requirements.
Plaintiffs asserted various other claims against Saitas that are
not raised on appeal.

10
 On October 5, 1998, the district court certified an

injunctive relief class of homeowners near or adjacent to the

Deepwood dump. As to the South Loop 12 dump, Plaintiffs are all

individually named. On December 17, 1998, the district court

bifurcated the injunctive relief and damages12 portions of the

suits. The court then held a bench trial regarding the

injunctive relief claims on July 14, 1999. The Final Judgment,

entered on August 27, 1999,13 granted Plaintiffs injunctive relief

against the City on both dumps, finding that the City had

“contributed to” illegal open dumping, but denied injunctive

relief against Saitas.14 The district court’s injunction required

the City, inter alia, to (1) erect a fence around both sites, (2)

monitor the sites for methane gas and fire hazards, (3) prevent

future open dumping, (4) remove all solid waste from the sites

without harming adjoining properties, and (5) restore the sites

to non-hazardous conditions. See Meghrig v. KFC Western, Inc.,

516 U.S. 479, 484 (1996) (stating that “a private citizen suing

under § 6972(a)(1)(B) could seek a mandatory injunction, i.e.,

12
These damages claims (which do not arise under the RCRA)
alleged (1) race discrimination against the City as to both the
Deepwood and South Loop 12 dumps, and (2) common law nuisance
against Nethery as to the Deepwood dump.
13
On August 4, 1999, the district court had filed a
detailed Court’s Findings of Fact and Conclusions of Law.
14
Plaintiffs also prevailed against Nethery and Van
Sickle. Nethery filed a notice of appeal with this court, but
failed to pay the requisite fee, thus waiving his appeal.

11
one that orders a responsible party to ‘take action’ by attending

to the cleanup and proper disposal of toxic waste, or a

prohibitory injunction, i.e., one that ‘restrains’ a responsible

party from further violating [the] RCRA”).

The City timely appealed, claiming that the district court

erred in holding that the City “contributed to” dumping at the

sites.15 Plaintiffs also timely appealed, arguing that the

district court erred in holding that Saitas could not be held

liable for violating the RCRA.

II. STANDARD OF REVIEW

“We review the district court’s findings of fact for clear

error and legal issues de novo. However, we may affirm for

reasons other than those relied upon by the district court.”

Joslyn Mfg. Co. v. Koppers Co., Inc., 40 F.3d 750, 753 (5th Cir.

1994) (citations omitted). A district court’s ruling is not

clearly erroneous unless we are left with the definite and firm

conviction that a mistake has been made. See United States v.

Bentley-Smith, 2 F.3d 1368, 1377 (5th Cir. 1993). In addition,

“[w]e review the district court’s grant of a permanent injunction

for abuse of discretion.” Hopwood v. Texas, 236 F.3d 256, 276

(5th Cir. 2000).

15
After the Final Judgment, the City moved for, and was
granted, a partial stay of the injunction pending this appeal.

12
 III. THE CITY’S APPEAL

In the district court, Plaintiffs asserted the following

four claims against the City: (1) “contributing to” liability

under 42 U.S.C. § 6972(a)(1)(B) at the Deepwood dump, (2)

“contributing to” liability under § 6972(a)(1)(B) at the South

Loop 12 dump, (3) liability under § 6945(a) at the Deepwood dump,

and (4) liability under § 6945(a) at the South Loop 12 dump. The

district court found the City liable under § 6972(a)(1)(B) for

both the Deepwood and South Loop 12 dumps, but found that

Plaintiffs had not met their burden as to their § 6945(a) claims.

Plaintiffs are not appealing the district court’s decision on the

§ 6945(a) claims, but the City is appealing the liability

findings under § 6972(a)(1)(B).

In order to supply a better understanding of the RCRA, we

provide at the outset a brief description of nuisance at common

law. We then lay out the statutory framework of “contributing

to” liability under § 6972(a)(1)(B). Finally, we assess whether

the district court’s ruling that the City fell within the

statutory reach of § 6972(a)(1)(B) was in error.

A. Nuisance at Common Law

Nuisance principles form the core doctrinal foundation for

modern environmental statutes, including the RCRA. The nuisance

action originated in the twelfth century. See RESTATEMENT (SECOND)

OF TORTS § 821D cmt. a (1979). Courts first recognized “private”

13
nuisances, see id., and by the sixteenth century, began to

recognize “public” nuisances, see id. § 821C cmt. a. “A private

nuisance is a nontrespassory invasion of another’s interest in

the private use and enjoyment of land.” Id. § 821D. A public

nuisance, on the other hand, involves an unreasonable

interference with a right common to the general public. See id.

§ 821B. In determining whether conduct amounts to a public

nuisance, courts consider, inter alia, whether the conduct

involves a significant interference with public health, safety,

peace, comfort, or convenience. See id. Private and public

nuisances are not set apart in rigid, mutually exclusive

categories. On the contrary, “[w]hen the nuisance, in addition

to interfering with the public right, also interferes with the

use and enjoyment of the plaintiff’s land, it is a private

nuisance as well as a public one.” Id. § 821C cmt. e. See also,

e.g., Ozark Poultry Prods., Inc. v. Garman, 472 S.W.2d 714, 715

(Ark. 1971) (stating that landowners’ suit against a factory that

polluted air and water could be both a public and private

nuisance).

These interests (i.e., in a public right and in the use and

enjoyment of one’s land) “may be invaded by any one of the types

of conduct that serve in general as bases for all tort

liability.” RESTATEMENT (SECOND) OF TORTS § 822 cmt. a. The

Restatement explains that one is subject to liability for a

private nuisance (1) if one’s conduct is the legal cause of an

14
invasion of another’s interest and (2) if the invasion is either

(a) “intentional and unreasonable” or (b) “unintentional and

otherwise actionable under the rules controlling liability for

negligent or reckless conduct, or for abnormally dangerous

conditions or activities.” Id. § 822. The rules of strict

liability, i.e., liability imposed without regard to the

defendant’s negligence or intent to harm,16 are frequently applied

to abnormally dangerous activities, see RESTATEMENT (SECOND) OF TORTS

§ 519 (1977), although they are imposed in other nuisance

situations as well.17

16
“It is probable that the § 829A strict-liability idea
[see infra note 17] is generally consistent with the strict-
liability concept set forth in [§ 20].” RESTATEMENT (THIRD) OF
TORTS: LIABILITY FOR PHYSICAL HARM (BASIC PRINCIPLES) § 20 cmt. c
(Tentative Draft No. 1, Mar. 28, 2001) (tentatively approved at
the American Law Institute Annual Meeting, May 14-17, 2001).
Strict liability is essentially defined as “liability imposed
without regard to the defendant’s negligence or intent to harm.
. . . [S]trict liability signifies liability without fault, or at
least without any proof of fault.” RESTATEMENT (THIRD) OF TORTS:
LIABILITY FOR PHYSICAL HARM (BASIC PRINCIPLES) ch. 4 scope note; see
also PROSSER AND KEETON ON THE LAW OF TORTS § 75, at 534 (W. Page
Keeton et al. eds., 5th ed. 1984) (stating that strict liability
“means liability that is imposed on an actor apart from either
(1) an intent to interfere with a legally protected interest
without a legal justification for doing so, or (2) a breach of a
duty to exercise reasonable care”). However, it is important “to
observe that there is no single theory for strict liability in
tort.” RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL HARM (BASIC
PRINCIPLES) ch. 4 scope note. But, “at a minimum, strict-
liability doctrines do require that the defendant’s conduct or
activity be a cause of the plaintiff’s injury.” Id. (emphasis
added).
17
“While § 829A[, which further defines the term
‘unreasonable’ used in the general rule of § 822,] is explained
in the language of unreasonableness, that section in essence
rests on an idea of strict liability: that it is appropriate for

15
 The private nuisance liability framework of Restatement

§ 822 is also generally applicable in public nuisance situations.

See RESTATEMENT (SECOND) OF TORTS § 822 cmt. a. However, public

nuisance law tends to impose liability more often on the basis of

strict liability. See, e.g., New York v. Shore Realty Corp., 759

F.2d 1032, 1051 (2d Cir. 1985) (applying New York law and stating

that liability for public nuisance exists “irrespective of

negligence or fault”); Concerned Citizens of Bridesburg v. City

of Phila., 643 F. Supp. 713, 726 (E.D. Pa. 1986) (“At common law,

neither individuals nor municipalities have the right to maintain

for any period of time activities that constitute a public

nuisance, irrespective of lack of fault or due care.”); Wood v.

Picillo, 443 A.2d 1244, 1248 (R.I. 1982) (stating, in a case in

which multiple private plaintiffs sued under public and private

nuisance alleging that the defendants’ chemical dump site was

polluting the soil, that “generally this court has not required

plaintiffs to establish negligence in nuisance actions”); id. at

1247 (stating that “liability in nuisance is predicated upon

unreasonable injury, rather than upon unreasonable conduct”);

Branch v. W. Petroleum, Inc., 657 P.2d 267, 274 (Utah 1982)

(“Unlike most torts, [nuisance law] is not concerned with the

nature of the conduct causing the damage, but with the nature and

the defendant to compensate the plaintiff even though the
defendant has in general behaved in a reasonable way.”
RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL HARM (BASIC PRINCIPLES)
§ 20 cmt. c.

16
relative importance of the interests interfered with or

invaded.”).18

Two basic remedies are available in nuisance actions –

damages and injunctions. See RESTATEMENT (SECOND) OF TORTS § 821B

cmt. i; id. § 821C (stating that to maintain a damage action for

a public nuisance, the plaintiff must have suffered damage

different in kind from that suffered by the general public and

that to maintain an injunctive action for a public nuisance, the

18
However, some courts have applied a more fault-based
scheme to public nuisance actions brought by private plaintiffs
(as opposed to actions brought by the sovereign). See, e.g.,
Quinnett v. Newman, 568 A.2d 786, 789 (Conn. 1990). This
distinction (between private and public plaintiffs) stems from
the origin of public nuisances, in which such nuisances were
treated as crimes at common law (which, of course, were within
the purview of the state’s police power). See RESTATEMENT (SECOND)
OF TORTS at § 822 cmt. a; PROSSER AND KEETON ON TORTS § 90. Although
public nuisances are no longer treated only as crimes, they
continue to be considered intrusions on the public welfare. See
RESTATEMENT (SECOND) OF TORTS § 821B cmt. b. As such, the degree to
which the defendant is at fault is less important than the
state’s interest. See Starr v. Comm’r of Envtl. Prot., 627 A.2d
1296, 1315 (Conn. 1993) (“Because a public nuisance implicates
the rights of the public and the exercise of the state’s police
power, the legislature could legitimately determine that the
plaintiff’s lack of culpability for the existence of the
contaminated condition is outweighed by the state’s interest in
protecting public resources.”). This rationale for imposing
liability without regard to fault does not translate completely
when the plaintiff is a private citizen.
However, the above potential basis for differentiation
between private and public plaintiffs in public nuisance law does
not retain full force when private plaintiffs sue in the context
of statutory citizen suit provisions (which permit private
parties to act essentially in place of the governmental entity
when it is unable or unwilling to take action). These citizen
suit provisions are common in environmental statutes, such as the
RCRA. See, e.g., 42 U.S.C. § 6972(a)(1) (RCRA citizen suit
provisions); 33 U.S.C. § 1365(a)(1) (Clean Water Act citizen suit
provision).

17
plaintiff must have a right to recover damages or the authority

to represent a political subdivision in the matter or standing to

sue in a citizen’s action); id. § 821F (revealing that a private

or public nuisance action for damages may be maintained only by

those who have suffered “significant harm”); id. § 822 cmt. d

(providing that an “injunction may be obtained in a proper case

against a threatened private nuisance, but an action cannot be

maintained at law unless harm has already been suffered” and

referencing § 821C for a similar distinction in the realm of

public nuisances); see also Developments in the Law –

Injunctions, 78 HARV. L. REV. 994, 1001 (1965) (explaining that

injunctions are usually granted when damages are inadequate, such

as with ongoing nuisances in which numerous suits or future

damage awards would be required).

The theory of nuisance lends itself naturally to combating

the harms created by environmental problems. See Geo-Tech

Reclamation Indus., Inc. v. Hamrick, 886 F.2d 662, 665 (4th Cir.

1989) (stating that “the operation of a landfill . . . was

recognized as a nuisance even by the early common law”). One

commentator succinctly described environmental jurisprudence,

stating: “The deepest doctrinal roots of modern environmental

law are found in principles of nuisance. . . . Nuisance actions

have involved pollution of all physical media — air, water, land

— by a wide variety of means. . . . Nuisance actions have

challenged virtually every major industrial and municipal

18
activity which is today the subject of comprehensive

environmental regulation . . . . Nuisance theory and case law is

the common law backbone of modern environmental and energy law.”

WILLIAM H. RODGERS, JR., HANDBOOK ON ENVIRONMENTAL LAW § 2.1, at 100

(1977).

Specifically, as regards the RCRA, Congress indicated that

the statute embodied common law concepts of nuisance. See S. REP.

NO. 96-172, at 5 (1979), reprinted in 1980 U.S.C.C.A.N. 5019,

5023 (“[The RCRA] is essentially a codification of common law

public nuisance remedies. . . . [and], therefore, incorporates

the legal theories used for centuries to assess liability for

creating a public nuisance (including [the theories of]

intentional tort, negligency, and strict liability) and to

determine appropriate remedies . . . . However, . . . . [s]ome

terms and concepts . . . are meant to be more liberal than their

common law counterparts.”); cf. Solid Waste Agency v. U.S. Army

Corps of Eng’rs., 101 F.3d 503, 505 (7th Cir. 1996) (noting that

the interests protected by the Clean Water Act “overlap to a

great extent the interests that nuisance law protects”). See

generally infra Part III.B.2.

Having provided a brief summary of the common law negligence

principles that underlie the RCRA, we next proceed to lay out the

regulatory framework of the RCRA as it applies to the facts of

this case.

B. Section 6972(a)(1)(B)

19
 Section 6972(a)(1)(B) of the RCRA provides in relevant part:

[A]ny person may commence a civil action on his own
behalf — against any person, including the United
States and any other governmental instrumentality or
agency, to the extent permitted by the eleventh
amendment to the Constitution, and including any past
or present generator, past or present transporter, or
past or present owner or operator of a treatment,
storage, or disposal facility, 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.

42 U.S.C. § 6972(a)(1)(B) (emphasis added).

Parsing the language of § 6972(a)(1)(B), we find it contains

essentially three elements. To prevail on a “contributing to”

claim, a plaintiff is required under § 6972(a)(1)(B) to

demonstrate: (1) that the defendant is a person, including, but

not limited to, one who was or is a generator or transporter of

solid or hazardous waste or one who was or is an owner or

operator of a solid or hazardous waste treatment, storage, or

disposal facility; (2) that the defendant has contributed to or

is contributing to the handling, storage, treatment,

transportation, or disposal of solid or hazardous waste19; and (3)

19
As an aside, with reference to the discussion of
nuisance at common law supra in Part III.A, we note that nuisance
liability at common law has been based on actions which
“contribute” to the creation of a nuisance. See, e.g., King v.
Columbian Carbon Co., 152 F.2d 636, 641 (5th Cir. 1945) (stating,
in a case under Texas law, that: “Our conclusion is that
nuisances may exist without negligence and in such situations it,
of course, is not requisite that negligence be alleged, but in
all cases where negligence has created, or contributed to the
creation of, the nuisance such negligence should be alleged.”

20
that the solid or hazardous waste may present an imminent and

substantial endangerment to health or the environment. See,

e.g., United States v. Aceto Agric. Chems. Corp., 872 F.2d 1373,

1382 n.9 (8th Cir. 1989); Zands v. Nelson (“Zands II”), 797 F.

Supp. 805, 809 (S.D. Cal. 1992).

We turn now to the district court’s finding that the City

falls within the statutory reach of § 6972(a)(1)(B) for both the

Deepwood and South Loop 12 dumps.

1. Any Person

First, the RCRA states that “any person” may be held liable,

“including” past or present generators, transporters, owners, or

operators. See 42 U.S.C. § 6972(a)(1)(B); H.R. REP. NO. 98-198,

Part I, at 48 (1983), reprinted in 1984 U.S.C.C.A.N. 5576, 5607

(stating that “anyone who has contributed or is contributing to

the creation, existence, or maintenance of an imminent and

(emphasis added)); New Jersey v. Gloucester Envtl. Mgmt. Servs.,
Inc., 821 F. Supp. 999, 1012, 1012-13 (D.N.J. 1993) (stating, in
a case under New Jersey law, that “one who creates or contributes
to the creation of the nuisance is generally liable for that
nuisance” and that “[i]t is enough for a nuisance claim to stand
that the municipalities allegedly contributed to the creation of
a situation which, it is alleged, unreasonably interfered with a
right common to the general public” (emphasis added)); Attorney
Gen. v. Baldwin, 279 N.E.2d 710, 717 n.3 (Mass. 1972) (stating
that “[i]t is not necessary to show that the person charged
committed the particular act that created the nuisance; it is
sufficient if he contributed thereto” (emphasis added); Wilson v.
Key Tronic Corp., 701 P.2d 518, 525 (Wash. Ct. App. 1985)
(finding the following jury instruction proper under Washington
law: “One who creates and/or contributes to the creation of a
nuisance is liable to any person whose property is injuriously
affected or whose personal enjoyment is lessened by the
nuisance.” (emphasis added)).

21
substantial endangerment is subject to [the RCRA]” and that “such

persons include, but are not limited to, past and present

generators . . . , past and present owners and operators . . . ,

and past and present transporters” (emphasis added)); Zands II,

797 F. Supp. at 809 (stating that “the word ‘including’ does not

limit the definition of the word ‘person’”); cf. Cobell v.

Norton, 240 F.3d 1081, 1100 (D.C. Cir. 2001) (“It is hornbook law

that the use of the word including indicates that the specified

list . . . that follows is illustrative, not exclusive.”

(alteration in original) (internal quotations omitted) (quoting

in parenthetical Puerto Rico Maritime Shipping Auth. v. ICC, 645

F.2d 1102, 1112 n.26 (D.C. Cir.1981)); United States v. Grassie,

237 F.3d 1199, 1215 (10th Cir. 2001) (regarding “the statutory

use of the word ‘including’ . . . as the preface for a

representative or illustrative example, and not as a term of

restriction or exclusion for anything not expressly specified”);

United States v. Canada, 110 F.3d 260, 263 (5th Cir. 1997)

(stating that the term “includes” indicates a non-exhaustive

list).

In addition, it is undisputed20 that the City has been and is

a generator of solid waste.21 Municipal activities, such as basic

20
In fact, no party raises this issue, proceeding on the
implicit assumption that the City is a generator of solid waste.
21
We note that § 6972(a)(1)(B) also specifically applies
to past contributors, as the phrase “past and present” modifies
generators, transporters, owners, and operators. See 42 U.S.C.

22
office operations in city buildings, demolition, and

construction, generate waste. See Meghrig, 516 U.S. at 483

(stating that the “RCRA is a comprehensive environmental

statute”); C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S.

383, 408 (1994) (O’Connor, J., concurring in judgment) (stating

that the “RCRA is a sweeping statute intended to regulate solid

waste from cradle to grave”); 1 JAMES T. O’REILLY ET AL., RCRA AND

SUPERFUND: A PRACTICE GUIDE WITH FORMS § 2.08, at 2-25 (2d ed. 2000)

(“The ‘cradle to grave’ intent of the RCRA law is illustrated by

the law’s inclusion of generators, transporters, and disposers

within the broad reach of the statute.”); see also Zands v.

Nelson, 779 F. Supp. 1254, 1257 (S.D. Cal. 1991) (“Zands I”)

(stating that the term “generators” indicates that the “RCRA

applies to individuals who do no more than create solid waste”).

Specifically, on this record, the City generated solid waste

through its demolition activities.

2. Has Contributed to or Is Contributing to

Second, the district court did not err as a matter of law in

interpreting the “contributing to” prong of § 6972(a)(1)(B). In

addition, its finding that the City satisfied the requirements of

the provision was not clear error. In so concluding, we first

§ 6972(a)(1)(B); cf. H.R. CONF. REP. NO. 98-1133, at 119 (1984),
reprinted in 1984 U.S.C.C.A.N. 5649, 5690 (stating that “persons
who have contributed in the past or are presently contributing to
the endangerment [of health or the environment], including but
not limited to generators,” have always been liable under § 6973,
see infra note 22).

23
lay out the basic framework that will guide our analysis and then

examine the evidence relating to each dump.

a. Construction of the Term “Contribute”

The RCRA does not define the term “contribute” or any

variation thereof. “This silence compels us to ‘start with the

assumption that the legislative purpose is expressed by the

ordinary meaning of the words used.’” Russello v. United States,

464 U.S. 16, 21 (1983) (quoting Richards v. United States, 369

U.S. 1, 9 (1962)); see also Green Tree Fin. Corp. v. Randolph,

121 S. Ct. 513, 519 (2000) (stating that “[b]ecause the [statute]

does not define [a term] or otherwise suggest that the ordinary

meaning of [the term] should not apply, [the Supreme Court

accords] the term its well-established meaning”); Asgrow Seed Co.

v. Winterboer, 513 U.S. 179, 187 (1995); cf. Hallstrom v.

Tillamook County, 493 U.S. 20, 31 (1989) (adopting plain language

meaning for the RCRA notice requirement in § 6972(b)).

Webster’s Dictionary defines “contribute” as to “have a

share in any act or effect.” WEBSTER’S THIRD NEW INTERNATIONAL

DICTIONARY 496 (unabridged) (1963); see also OXFORD ENGLISH DICTIONARY

849 (2d ed. 1989) (“to have a part or share in producing [an

effect]”); THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 410 (3d

ed. 1992) (“to help bring about a result”).22

22
That the definition indicates a “non-narrow”
construction of “contribute” is also supported by the relevant
legislative history. See S. REP. NO. 96-172, at 5 (1979),
reprinted in 1980 U.S.C.C.A.N. 5019, 5023; H.R. COMM. PRINT NO. 96-

24
 Our sister circuits have drawn upon the plain meaning of the

word “contribute” and on the legislative history as well to

interpret the “contributing to” phrase under the analogous § 6973

provision.23 See, e.g., Aceto, 872 F.2d at 1383 (“The relevant

legislative history supports a broad, rather than a narrow,

construction of the phrase ‘contributed to.’”); United States v.

Waste Indus., Inc., 734 F.2d 159, 167 (4th Cir. 1984)

(“Congress’s intent, then, was to establish a standard of

liability by incorporating and expanding upon the common law.”).

The Court of Appeals for the Fourth Circuit aptly summarized

IFC 31, at 31 (1979).
We note that this legislative history pertains to an
analogous provision, § 6973, which details the requirements that
must be met in order for the EPA (on behalf of the United States)
to bring suit. It contains language identical to the citizen
suit provision of § 6972(a)(1)(B). We apply the “normal rule of
statutory construction that identical words used in different
parts of the same act are intended to have the same meaning.”
Commissioner v. Lundy, 516 U.S. 235, 250 (1996) (internal
quotations and citations omitted); cf. 2A N. SINGER, SUTHERLAND ON
STATUTORY CONSTRUCTION § 46.07, at 202-04 (6th ed. 2000) (“Where one
section of a statute contains a particular provision, omission of
the same provision from a similar section is significant to show
different legislative intent for the two section [sic].”).
In addition to this well-established rule of statutory
construction, which is based on likely congressional intent, our
conclusion that § 6972(a)(1)(B) and § 6973 are to be similarly
interpreted is also supported by the evidence we have of
congressional intent regarding the RCRA. See H.R. REP. NO. 98-
198, Part I, at 53 (1983), reprinted in 1984 U.S.C.C.A.N. 5576,
5612 (stating that private parties may sue under the citizen suit
provision [of § 6972(a)(1)(B)] “pursuant to the standards of
liability established under [§ 6973]”).
23
See supra note 22.

25
congressional intent regarding interpretations of phrases such as

“contributing to”:

[Congress has mandated] that the former common law of
nuisance, as applied to situations in which a risk of
harm from solid or hazardous wastes exists, shall
include new terms and concepts which shall be developed
in a liberal, not a restrictive, manner. This ensures
that problems that Congress could not have anticipated
when passing the [RCRA] will be dealt with in a way
minimizing the risk of harm to the environment and the
public.

Waste Indus., 734 F.2d at 167. (citations omitted).24 Therefore,

we follow our sister circuits’ lead and interpret “contribute” to

mean “have a part or share in producing an effect.”

b. The Required Level of Fault

As to the fault standard under which such “contributions”

are held actionable, we note that the one circuit that has

addressed this specific issue has held that the RCRA imposes

strict liability, i.e., liability imposed without regard to the

24
The congressional statements are in accord with the
overriding objective of the RCRA: “The [RCRA] is a multifaceted
approach toward solving the problems associated with the 3-4
billion tons of discarded materials generated each year, and the
problems resulting from the anticipated 8% annual increase in the
volume of such waste.” H.R. REP. NO. 94-1491, Part I, at 2
(1976), reprinted in 1976 U.S.C.C.A.N. 6238, 6239. “Congress
believed that by giving citizens themselves the power to enforce
[RCRA] provisions by suing violators directly, they could speed
compliance with environmental laws, as well as put pressure upon
a government that was unable or unwilling to enforce such laws
itself.” Greenpeace, Inc. v. Waste Techs. Indus., 9 F.3d 1174,
1179 n.2 (6th Cir. 1993) (citing H.R. REP. NO. 98-198, Part I, at
53 (1983), reprinted in 1984 U.S.C.C.A.N. 5576, 5612); cf. Waste
Indus. 734 F.2d at 165 (stating that Congress expressly intended
the RCRA to “close loopholes in environmental protection”).

26
defendant’s negligence or intent to harm. Cf. United States v.

Northeastern Pharm. & Chem. Co., 810 F.2d 726, 741 (8th Cir.

1986) (stating, in a case arising under § 6973 (see supra note

22), that Congress intended to impose liability “without fault or

negligence” and specifically on past non-negligent off-site

generators and transporters); Aceto, 872 F.2d at 1377 (citing

Northeastern and stating that § 6973 “has been interpreted to

impose strict liability”).25 Some other courts have also come to

25
The City argues at one point that Aceto is inapposite
because it deals primarily with the Comprehensive Environmental
Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C.
§ 9607, than the RCRA. As to this rationale, we do not agree.
Aceto considers both CERCLA and RCRA claims, clearly delineating
between the two discussions. See 872 F.2d at 1376, 1378, 1382.
The City also asserts that the RCRA “is not directed to
issues regarding liability for hazardous waste as [is CERCLA],”
apparently to distinguish CERCLA cases. First, we note that the
distinction between the RCRA and CERCLA is not that the former
deals with solid waste and the latter with hazardous waste.
Rather, both statutes deal with both types of waste; the
variation arises from the fact that the RCRA concerns existing
dumps and the CERCLA deals with abandoned dumps. See O’REILLY ET
AL., RCRA AND SUPERFUND § 2.02, at 2-3 (stating that “CERCLA applies
to abandoned sites, and RCRA deals with today’s generators”).
We also do not find the City’s implied argument (i.e.,
that solid and hazardous waste be treated differently) to be
persuasive. There is no such indication in § 6972(a)(1)(B). To
the contrary, the terms “solid or hazardous waste” in
§ 6972(a)(1)(B) indicate that both are to be treated similarly.
If Congress had wished to treat solid waste differently under
this provision, it could have done so, as it has done in other
provisions. See, e.g., 42 U.S.C. § 6922 (dealing only with
“standards applicable to generators of hazardous waste”); § 6937
(describing an “inventory of Federal agency hazardous waste
facilities”). We also note that the State discovered at least
one drum at the Deepwood dump that appeared to contain hazardous
waste.

27
the same conclusion. See, e.g., Zands II, 797 F. Supp. at 809-10.

We have no reason to consider here whether strict liability

may be a basis for liability under the RCRA.26 The district

court did not hold the City strictly liable for the waste that it

generated and that was deposited in the Deepwood and South Loop

12 dumps. In the case of the South Loop 12 dump, the City did

not dispute that it used the site as a municipal dump. In the

case of the Deepwood dump, the district court found, and we

agree, that there is a compelling case on the record that the

City’s actions were negligent, i.e., that the City failed to

exercise due care in selecting or instructing the entity actually

conducting the disposal of the City’s waste.27

26
That Congress intended for the RCRA to be a strict
liability statute finds some support in the legislative history.
See, e.g., H.R. CONF. REP. NO. 98-1133, at 119 (1984), reprinted
in 1984 U.S.C.C.A.N. 5649, 5690 (“Therefore, [the RCRA] has
always reached those persons who have contributed in the past or
are presently contributing to the endangerment, including but not
limited to generators, regardless of fault or negligence.
. . . Thus for example, non-negligent generators whose wastes are
no longer being deposited or dumped at a particular site may be
ordered to abate the hazard to health or the environment posed by
the leaking of the wastes they once generated and which have been
deposited on the site.”); H.R. COMM. PRINT NO. 96-IFC 31, at 31
(1979) (“For example, a company that generates hazardous waste
would be someone ‘contributing to’ an endangerment . . . even
where someone else deposited the waste in an improper disposal
site (similar to strict liability under common law).”); H.R. REP.
NO. 98-198, Part I, at 48 (1983), reprinted in 1984 U.S.C.C.A.N.
5576, 5607 (“[The RCRA] has always provided the authority to
require the abatement of present conditions of endangerment
resulting from past disposal practices, whether intentional or
unintentional.”).
27
There are also indications in the legislative history
that Congress intended to create liability under a negligence

28
 c. The Evidence Regarding the Deepwood

and South Loop 12 Dumps

We now examine the evidence regarding each dump and conclude

that the district court did not commit clear error in finding

that the evidence established § 6972(a)(1)(B) “contributing to”

liability for the City.

i. Deepwood Dump

The RCRA creates, at the very least, a duty on the part of

generators not to dispose of their waste in such a manner that it

may present an imminent and substantial endangerment to health or

the environment. Negligent oversight of disposal is actionable

under the RCRA.28 See supra note 27 and accompanying text. As

described supra in Part I.A, the City contracted with Billy

Nabors and Dallas Demolition to conduct demolitions of City

property. These City contractors dumped loads of debris at the

framework. See, e.g., S. REP. NO. 96-172, at 5 (1979), reprinted
in 1980 U.S.C.C.A.N. 5019, 5023 (“For example, a company that
generated hazardous waste might be someone contributing to an
endangerment . . . even where someone else deposited the waste in
an improper disposal site (similar to strict liability under
common law), where the generator had knowledge of the illicit
disposal or failed to exercise due care in selecting or
instructing the entity actually conducting the disposal.”
(emphasis added)).
28
The City appears to argue that holding it liable for the
actions of its contractors in disposing of city waste is akin to
strict liability. This assertion is wholly without merit. As we
have noted and will explain, this meets a negligence standard,
and we are not addressing here whether strict liability is
appropriate under the RCRA.

29
Deepwood dump. The City’s contracts with Dallas Demolition did

not specify that waste materials generated by the City’s

activities must be properly disposed of in a legal landfill.

The City was aware that Dallas Demolition engaged in illegal

dumping and operated its own unauthorized waste site.

Furthermore, the City’s attorneys were informed that Dallas

Demolition dumped at the Deepwood dump. However, even after the

City’s attorneys had learned that Dallas Demolition had been

dumping illegally in Dallas, the City continued to work with

Dallas Demolition.29 The district court did not clearly err in

finding that this “lax oversight” of its contractors and their

disposal of City waste is evidence of the City’s “contributing

to” liability. Cf. Blue Legs v. U.S. Bureau of Indian Affairs,

867 F.2d 1094, 1099 (8th Cir. 1989) (finding that federal

government agencies “contributed to” open dumping by “generating

solid waste, contracting for its disposal and, in some instances,

transporting solid waste to dumps operated in violation of

federal law” (emphasis added)).

The City argues that there is no evidence in the record that

the City’s waste actually went into the Deepwood dump. The City

29
The City asserts that it had no knowledge that its
contractors were illegally dumping at the Deepwood dump. On the
record, the district court did not clearly err in finding that
the City’s attorneys were aware of the contractors’ illegal
actions. In addition, we note that, under negligence, it is not
required that the City actually “know.” Rather, it is sufficient
that the City reasonably should have known.

30
asserts, instead, that the contracts simply demonstrate that it

could have used Billy Nabors or Dallas Demolition to haul trash,

but that there is no evidence that it actually did do so (and,

even if it did utilize these haulers, that the City’s particular

waste was taken to the Deepwood dump). We find little merit in

this argument.

First, the district court reasonably inferred that the

City’s waste went into the Deepwood dump, and on this record,

this inference is not clear error. The City Council allocated

funds for the demolition actions, and the City Council,

subsequent to a bidding process, awarded specific contracts to

Dallas Demolition and Billy Nabors, even after City attorneys

knew that they were dumping illegally at the Deepwood dump.

Given that the City specifically hired these contractors to

perform certain jobs, a logical conclusion is that the City used

them for those jobs. A mere assertion from the City that the

jobs might not have been performed is insufficient to alter this

conclusion.

The City’s actions therefore snugly fit the “failed to

exercise due care in selecting or instructing the entity actually

conducting the disposal” statement from S. REP. NO. 96-172, at 5

(1979), reprinted in 1980 U.S.C.C.A.N. 5019, 5023. See supra

Part III.B.2.b.30 This situation also closely parallels an

30
There may also be other bases for § 6972(a)(1)(B)
liability, but we need not decide that in the instant case.

31
example considered in a 1979 House Committee Report and a 1979

Senate Report, i.e., that a generator of solid waste is subject

to liability even when someone else conducted the disposal at the

generator’s request. See S. REP. NO. 96-172, at 5 (1979),

reprinted in 1980 U.S.C.C.A.N. 5019, 5023; H.R. COMM. PRINT NO. 96-

IFC 31, at 31 (1979).

Therefore, the district court did not err in assessing

§ 6972(a)(1)(B) liability against the City based on the City’s

negligent actions regarding the disposal of its waste.31

ii. South Loop 12 Dump

The City does not dispute that it used the South Loop 12

site as a municipal landfill from 1964 until at least 1972. An

owner of South Loop 12 fenced the site and hired a guard to stop

31
The district court also based § 6972(a)(1)(B) liability
on the City’s actions in granting permits for filling and mining
operations at the Deepwood dump after the City had obtained a
judgment (which had not been complied with) against the owner of
the Deepwood dump finding the site to be an illegal open dump and
requiring the abatement of the conditions at the site. See supra
Part I.A. The district court found, in addition, that in issuing
those permits, the City “had numerous opportunities to minimize
the health hazard that exists next door to the Plaintiffs’ homes
by simply following its own procedures,” opportunities which the
City did not avail itself of.
The district court held, and we agree, that the City’s
liability may be based on its generation and subsequent disposal
of solid waste, wholly apart from the City’s permitting actions.
We therefore need not and do not address whether the City’s
permitting activities could also be a basis for § 6972(a)(1)(B)
liability. We note that the City does not argue that negligent
actions in issuing permits could not, as a matter of law, form a
basis for § 6972(a)(1)(B) liability, but instead appears to
assert that its actions as to the permits were not negligent.

32
the City from dumping because the City would not properly cover

the refuse it had dumped there.32 The City’s primary argument is

that because its use ended in 1972 and because the RCRA was not

enacted until 1976, it cannot be held liable under

§ 6972(a)(1)(B). We do not agree.

Section 6972(a)(1)(B) is clear that it applies to both past

and present acts, as the adjectives “past and present” are

specifically included. We have also previously confirmed that

“[w]e understand [the] language [of § 6972(a)(1)(B)] to provide a

claim for injunctive relief based on either past or present

conduct.” Tanglewood E. Homeowners v. Charles-Thomas, Inc., 849

F.2d 1568, 1576 (5th Cir. 1988) (emphasis added) (the activities

at issue in the case had also occurred before 1976);

Northeastern, 810 F.2d at 739 (stating that the analogous

provision of § 6973, see supra note 22, “specifically applies to

past generators and transporters” and rejecting the defendant’s

argument that pre-1976 dumping should not be a basis for RCRA

liability); see also infra Part III.B.3 (explaining that although

the endangerment must currently exist, the actions causing the

endangerment may have occurred wholly in the past); cf. Gwaltney

of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49,

32
This directly contradicts the City’s assertion that
there is no evidence in the record that it did not fulfill its
requirement of placing at least eighteen inches of compact soil
over the waste (a condition of using the site as a sanitary
landfill).

33
57 & n.2 (1987) (noting that Congress intentionally used

“language that explicitly targets wholly past violations” when it

created § 6972(a)(1)(B)).

“In short, the disposal of wastes [as wholly past acts] can

constitute a continuing violation as long as no proper disposal

procedures are put into effect or as long as the waste has not

been cleaned up and the environmental effects remain remediable.”

Gache v. Town of Harrison, 813 F. Supp. 1037, 1041, 1042

(S.D.N.Y. 1993) (rejecting the defendant city’s argument that it

had not dumped any materials in years and thus should not be held

liable); United States v. Price, 523 F. Supp. 1055, 1071 (D.N.J.

1981) (rejecting defendants’ argument that the RCRA could not be

applied to its activities, which ceased in 1972), aff’d, 688 F.2d

204 (3d Cir. 1982). The continued presence of this municipal

waste in the South Loop 12 dump (so long as it presents an

imminent and substantial endangerment to health or the

environment, see infra Part III.B.3) is actionable under

§ 6972(a)(1)(B).

3. Imminent and Substantial Endangerment

to Health or Environment

Lastly, the district court did not err in concluding that an

imminent and substantial endangerment to health or the

environment existed at both dumps. At the outset, we note that

the operative word in § 6972(a)(1)(B) is “may.” Thus, Plaintiffs

34
must demonstrate that the waste “may present” such a danger.33

See Dague v. City of Burlington, 935 F.2d 1343, 1355 (2d Cir.

1991) (“Significantly, congress used the word ‘may’ to preface

the standard of liability[.]”), rev’d in part on other grounds,

502 U.S. 1071 (1992); Kara Holding Corp. v. Getty Petroleum

Mktg., Inc., 67 F. Supp. 2d 302, 310 (S.D.N.Y. 1999) (emphasizing

“may” in § 6972(a)(1)(B)); cf. Greenpeace, Inc. v. Waste Techs.

Indus., 9 F.3d 1174, 1181 (6th Cir. 1993) (contrasting the

“difficult standards of § 6976(b)” with the “far less restrictive

rules governing [imminent and substantial endangerment under]

§ 6972(a)(1)(B)”).

The Supreme Court has also pointed out that the phrase “may

present” communicates another idea: It “quite clearly excludes

waste that no longer presents” the harm contemplated by

§ 6972(a)(1)(B). See Meghrig, 516 U.S. at 486. “[T]his language

‘implies that there must be a threat which is present now,

although the impact of the threat may not be felt until later.’”

Id. (quoting Price v. U.S. Navy, 39 F.3d 1011, 1019 (9th Cir.

1994)). As such, “under an imminent hazard citizen suit, the

endangerment must be ongoing, but the conduct that created the

endangerment need not be.” Conn. Coastal Fishermen’s Ass’n v.

33
As will be explained infra in the text, Plaintiffs’
evidence not only illustrates that the waste at each dump “may
present” an “imminent and substantial endangerment,” but also
that it already does present such a danger to health and the
environment. See infra Parts III.B.3.a & b.

35
Remington Arms Co., Inc., 989 F.2d 1305, 1316 (2d Cir. 1993); see

also U.S. Navy, 39 F.3d at 1019 (stating that the language of the

provision does not require actual harm, but threatened or

potential harm); United States v. Waste Indus., Inc., 734 F.2d

159, 165 (4th Cir. 1984) (stating that the RCRA was intended to

apply to “active human conduct” and is “a means to respond to

disasters precipitated by earlier poor planning” (emphasis

added)).

Because the RCRA does not define “imminent,” the Supreme

Court, as is its customary practice, see supra Part III.B.2.a

(discussing meaning of “contribute”), looked to the plain meaning

of the term: “An endangerment can only be ‘imminent’ if it

‘threaten[s] to occur immediately.’” Meghrig, 516 U.S. at 485

(alteration in original) (quoting WEBSTER’S NEW INTERNATIONAL DICTIONARY

OF ENGLISH LANGUAGE 1245 (2d ed. 1934)); see also Dague, 935 F.2d at

1356 (“A finding of ‘imminency’ does not require a showing that

actual harm will occur immediately so long as the risk of

threatened harm is present[.]”); United States v. Price, 688 F.2d

204, 213-14 (3d Cir. 1982); Kara Holding, 67 F. Supp. 2d at 310

(citing Meghrig); cf. Envtl. Def. Fund v. EPA, 465 F.2d 528, 535

(D.C. Cir. 1972) (“An ‘imminent hazard’ may be declared at any

point in a chain of events which may ultimately result in harm to

the public.” (internal quotations and citation omitted)). The

legislative history supports interpreting “imminent” in

accordance with this plain meaning:

36
 Imminence . . . applies to the nature of the threat
rather than identification of the time when the
endangerment initially arose. The section, therefore,
may be used for events which took place at some time in
the past but which continue to present a threat to the
public health or the environment.

H.R. COMM. PRINT NO. 96-IFC 31, at 32 (1979). And finally, an

endangerment is “substantial” if it is “serious.” See U.S. Navy,

39 F.3d at 1019.

With this framework in place, we now examine the evidence

regarding the imminent and substantial endangerment to health and

the environment at each dump.

a. Deepwood Dump

The district court did not clearly err in concluding that

the Deepwood dump “may present an imminent and substantial

endangerment to health or the environment.”34 See supra Part I.A.

The evidence includes the following: The Deepwood dump is

adjacent to residences and is partially in the flood plain of the

Trinity River; the dump is easily accessible to children; the

Deepwood dump twice caught fire and burned, with the resulting

fumes polluting the neighborhood air; a significant fire hazard

continues to exist at the dump; the State’s reports reveal that

34
On appeal, the City does not strenuously assert that the
conditions at the Deepwood dump do not pose an “imminent and
substantial endangerment to health or the environment.” At one
point, the City does conclusorily state that there is no evidence
to support the district court’s finding in this regard. As
demonstrated infra in the text, there is ample evidence in the
record, including the City’s own admissions, that the Deepwood
dump constitutes such an endangerment.

37
there is an imminent threat of the discharge of municipal solid

waste into Elam Creek, a tributary of the Trinity River, because

of the massive illegal dumping; the State itself has noted that

waste at the Deepwood dump may cause contamination of surface

water and ground water through the leaching of contaminates from

the debris by rainwater; asbestos, benzo(a)athracene, and benzene

(in excess of state limits) have been detected at the Deepwood

dump; and the City itself has long maintained that the Deepwood

dump poses a hazard to the public health.

b. South Loop 12 Dump

On appeal, the City argues that the material it dumped at

the South Loop 12 dump presents no danger to health or the

environment; yet, the City points to nothing in the record to

support this assertion. The district court concluded that

Plaintiffs have adequately demonstrated that the City’s

contributions played a role in the creation of the dangers at the

South Loop 12 dump, and, as will be explained below, the record

well supports this conclusion.35

35
The City asserts further that the district court’s
conclusion that there is a danger of fires is not supported by
the record. The City points out that some of the exhibits upon
which the district court relied give a “no” answer to the
question whether solid waste burned at the dump. Other exhibits
answer the same question with “unknown.” The court’s finding of
a danger of fires in the future is not rendered clearly erroneous
by some evidence that solid waste at the dump had not burned in
the past. On this record, the court did not clearly err in
finding that an imminent and substantial endangerment to health
and the environment exists at the South Loop 12 dump. See infra
text.

38
 The district court did not clearly err in finding that the

South Loop 12 dump satisfies the endangerment standard of

§ 6972(a)(1)(B). First, as the district court noted, the City

itself had previously admitted that the South Loop 12 dump was a

“hazard to the public health in its present condition.”

Furthermore, the City’s state court judgment against the owners

stated that the judgment was “necessary for the maintenance of

the public health and environment.”

In addition, the State’s documents themselves describe the

very danger of old landfills, like the South Loop 12 dump, that

were established before any of the proper closure requirements

were in place: As the old waste decomposes, the cover soil can

settle, ground and surface water can become contaminated with

leachate, and dangerous gases can form and migrate underground.36

This meets the “may present an imminent and substantial

endangerment” standard. Moreover, as the City failed to adhere

even to the less stringent requirements in effect during the time

it was dumping at the South Loop 12 dump, the dangers described

in the State’s plan are even more likely to materialize.

36
These dangers, stemming from old waste, are also
applicable to the Deepwood dump.

39
 Therefore, the district court’s finding that the City was

liable under § 6972(a)(1)(B) for the Deepwood and South Loop 12

dumps was not clearly erroneous.37

37
Although the City contests its liability under
§ 6972(a)(1)(B) for both dumps, it has never argued in the
alternative that, even if it were to be held liable, it is not
responsible for the cleanup in toto. At oral argument, the City
stated for the first time that it had determined that over eight
million cubic yards of waste existed at the dumps (as opposed to
the two million figure utilized throughout the case). In
response to a question from the panel, the City’s counsel
acknowledged that this issue was not raised before the district
court, was not briefed on appeal, and was being raised for the
first time at oral argument. As such, this issue is not properly
before us. See Hormel v. Helvering, 312 U.S. 552, 556 (1941)
(“Ordinarily an appellate court does not give consideration to
issues not raised below.”); Stewart Glass & Mirror, Inc. v. U.S.
Auto Glass Disc. Ctrs., Inc., 200 F.3d 307, 316-17 (5th Cir.
2000) (“It is a bedrock principle of appellate review that claims
raised for the first time on appeal will not be considered.”);
Trust Co. v. N.N.P. Inc., 104 F.3d 1478, 1485 (5th Cir. 1997)
(stating that “‘contentions not briefed are waived and will not
be considered on appeal’” (quoting Zeno v. Great Atl. & Pac. Tea
Co., 803 F.2d 178, 180 (5th Cir. 1986))).
Moreover, the point itself is elusive. Other than the
alleged fact of the existence of eight million cubic yards of
waste at the dumps, there was no suggestion in oral argument that
the City has any legal basis for diminishing its responsibility
for the remedy. We note that several courts have found that the
RCRA imposes joint and several liability. See, e.g., Waste, Inc.
Cost Recovery Group v. Allis Chalmers Corp., 51 F. Supp. 2d 936,
941 (N.D. Ind. 1999); Aurora Nat’l Bank v. Tri Star Mktg., Inc.,
990 F. Supp. 1020, 1034 (N.D. Ill. 1998); United States v.
Valentine, 856 F. Supp. 627, 633-34 (D. Wyo. 1994); United States
v. Conservation Chem. Co., 619 F. Supp. 162, 199 (W.D. Mo. 1985)
(discussing in detail the reasons underlying joint and several
liability in RCRA violations); Lincoln Props., Ltd. v. Higgins,
CIV. No. S-91-760DFL/GGH, 1993 WL 217429, at *15 (E.D. Cal. Jan.
21, 1993); see also infra Part IV.B.1 (discussing, with regard to
redressability in the standing inquiry, the broad authority of
courts to grant equitable relief under the RCRA). Under this
familiar doctrine, when two or more persons cause an indivisible
harm, each is subject to liability for the entire harm. See,
e.g., RESTATEMENT (THIRD) OF TORTS: APPORTIONMENT OF LIABILITY §§ 10, A18
(2000 & Supp. 2001); DOBBS, LAW OF TORTS 1077, 1091 (2001); PROSSER,

40
 IV. PLAINTIFFS’ APPEAL

The district court dismissed Saitas from the case, finding

that Plaintiffs had not met their burden as to any of their

claims against Saitas. On appeal, Plaintiffs contend that they

did meet their burden as to their claims that Saitas violated

specific regulations, requirements, and standards that took

effect pursuant to the solid waste disposal provisions of the

RCRA.38 They argue that these provisions require Saitas to

inventory all landfills in the state, to classify those that do

not meet EPA standards for sanitary landfills as open dumps, to

achieve either the closing of the dumps (such that they are in

compliance with EPA standards) or the upgrading of the dumps to

sanitary landfill status, to eliminate the health hazards of the

dumps, and to take steps to prevent future health hazards. See

LAW OF TORTS 328, 347 (1984 & Supp. 1988); see also, e.g., Aurora
Nat’l Bank v. Tri Star Mktg., Inc., 990 F. Supp. 1020, 1034 (N.D.
Ill. 1998). If, however, the defendant can demonstrate that the
harm is divisible and if there is a reasonable basis for the
apportionment, the defendant is responsible for its own
contribution to the harm. See, e.g., RESTATEMENT (THIRD) OF TORTS at
§ 26; DOBBS, LAW OF TORTS at 423; PROSSER, LAW OF TORTS at 348-52; see
also, e.g., Aurora, 990 F. Supp. at 1034. However, the City made
no claim, even at oral argument, that this doctrine (or any
other) could provide a legal basis for reducing its
responsibility for the remedy.
38
In the district court, Plaintiffs had also claimed that
Saitas “contributed or is contributing” to the handling, storage,
treatment, transportation, or disposal of solid or hazardous
waste at the Deepwood and South Loop 12 dumps, in violation of 42
U.S.C. § 6972(a)(1)(B), and that Saitas engaged in solid waste
management practices in violation of 42 U.S.C. § 6945(a).
Plaintiffs do not appeal the dismissal of these claims.

41
42 U.S.C. §§ 6943(a)(2) & (3), 6944, 6945, 6947; 40 C.F.R.

§ 256.23(a), (c), (d). Plaintiffs seek to enforce these

obligations via the citizen suit provision in 42 U.S.C.

§ 6972(a)(1)(A).

Before we address Saitas’s arguments with respect to the

threshold issues of standing and Eleventh Amendment immunity, and

in order to provide context for these arguments, we pause here to

lay out the relevant statutory and regulatory background. We

then continue with our analysis.

A. Statutory and Regulatory Framework

Under the RCRA, states are able to receive federal financial

and other assistance if they comply with various RCRA provisions

and the corresponding EPA regulations. One such requirement is

that states must submit solid waste management plans that

“prohibit the establishment of new open dumps within the State,”

and ensure that solid waste will be “utilized for resources

recovery or . . . disposed of in sanitary landfills . . . or

otherwise disposed of in an environmentally sound manner.” 42

U.S.C. § 6943(a)(2). Further, the plan must “provide for the

closing or upgrading of all existing open dumps within the State

pursuant to the requirements of section 6945.” Id. § 6943(a)(3).

Along these lines, a state is to provide the EPA with a list of

open dumps in the state, which the EPA must publish in the ODI.

See 42 U.S.C. § 6945(b); 40 C.F.R. pt. 256. The ODI was meant

“[t]o assist the States in complying with section 6943(a)(3).”

42
42 U.S.C. § 6945(b). Section 6945(a) in turn specifies that the

state plan must “contain a requirement that all existing disposal

facilities or sites for solid waste in [the] State which are open

dumps listed in the [ODI] . . . shall comply with such measures

as may be promulgated by the Administrator to eliminate health

hazards and minimize potential health hazards.” Id. § 6945(a).

These regulations, promulgated by the EPA, provided

“guidelines for the development and implementation of State solid

waste management plans.” Guidelines for Development and

Implementation of State Solid Waste Management Plans, 44 Fed.

Reg. 45066, 45066 (July 31, 1979). States were required to

classify existing solid waste disposal facilities, with the open

dumps to be published in the ODI. See 40 C.F.R. § 256.23(a).

“[A]ny facility which fails to comply with any one element of the

‘Criteria for Classification of Solid Waste Disposal Facilities

and Practices’ . . . is an open dump.” Solid Waste Disposal;

Inventory of Open Dumps, 50 Fed. Reg. 41952, 41952 (Oct. 16,

1985) (explaining that facilities that did not satisfy the

sanitary landfill criteria and which were not facilities for the

disposal of hazardous waste were to be classified as open dumps).

“For each facility classified as an open dump the State shall

take steps to close or upgrade the facility.” 40 C.F.R.

§ 256.23(c). In addition, while “providing for the closure of

open dumps the State shall take steps necessary to eliminate

43
health hazards and minimize potential health hazards.” Id. § 256.23(d).

In accordance with these statutory and regulatory

requirements, the State of Texas submitted its Solid Waste

Management Plan (“the state plan”), which was subsequently

approved by the EPA. See Approval of Texas Solid Waste

Management Plan, 48 Fed. Reg. 3986, 3986 (Jan. 28, 1983). The

district court found that the State “adopted a strategy of only

listing on the ODI those sites that had previously received a

permit” from the State. The district court further found that

because most dumps do not apply for a state permit, “this

strategy greatly reduced the number of existing open dumps in

Texas that could potentially find their way onto the ODI.” The

court went on to state in its Findings of Fact and Conclusions of

Law that the State “never informed the EPA of its intent to

unilaterally narrow the scope of the ODI.”39

B. Standing and Eleventh Amendment Immunity

On appeal, Saitas puts forth various jurisdictional issues

and argues that, even if the merits were to be reached, he did

not violate the RCRA. We examine each of the threshold issues in

turn. Not finding them to be viable in the instant case, we then

examine the merits of Plaintiffs’ claims, concluding that the

district court did not err in finding in favor of Saitas.

39
The district court also found that the dumps that the
State did list on the ODI were subsequently upgraded to meet the
EPA’s sanitary landfill criteria.

44
 Saitas asserts that Plaintiffs lack standing and also that

he is immune from suit under the Eleventh Amendment.40 Standing

is a jurisdictional doctrine that the Supreme Court has held must

be decided before the merits of a case. See Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 93-102 (1998)

(rejecting the doctrine of “hypothetical jurisdiction”); see also

Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208,

215 (1974) (stating that “the concept of justiciability, which

expresses the jurisdictional limitations imposed upon federal

courts by the ‘case or controversy’ requirement of Art. III,

embodies . . . [among other doctrines] the standing doctrine[]”).

“While the Eleventh Amendment is jurisdictional in the sense that

it is a limitation on the federal court’s judicial power, . . .

[the Supreme Court has] recognized that it is not coextensive

with the limitations on judicial power in Article III.” Calderon

v. Ashmus, 523 U.S. 740, 745 n.2 (1998); Laje v. R. E. Thomason

Gen. Hosp., 665 F.2d 724, 726 n.2 (5th Cir. 1982) (stating that

Eleventh Amendment claims “are jurisdictional in nature”

(emphasis added)). The Supreme Court has also stated that

standing must be examined before the Eleventh Amendment. See

40
In the district court and on appeal, Saitas also asserts
the diligent prosecution defense. This is a statutory defense,
arising from the RCRA itself. See 42 U.S.C. § 6972(b)(1)(B).
Because the diligent prosecution defense is not jurisdictional
and because we find that Saitas ultimately prevails on the
merits, see infra Part IV.C, we do not address Saitas’s arguments
in this regard.

45
Calderon, 523 U.S. at 745 (stating that the Court “must first

address whether [the action] is the sort of ‘Article III’ ‘case

or controversy’ to which federal courts are limited").

1. Standing

Article III, § 2 of the Constitution “extends the ‘judicial

Power’ of the United States only to ‘Cases’ and ‘Controversies.’”

Steel Co., 523 U.S. at 102. “That a suit may be a class action

. . . adds nothing to the question of standing, for even named

plaintiffs who represent a class must allege and show that they

personally have been injured, not that injury has been suffered

by other, unidentified members of the class to which they belong

and which they purport to represent.” Lewis v. Casey, 518 U.S.

343, 357 (1996) (alteration in original) (internal quotations

omitted) (quoting Simon v. Eastern Ky. Welfare Rights Org., 426

U.S. 26, 40, n. 20 (1976)). A plaintiff must demonstrate that he

or she satisfies the three constitutional requirements of

standing: (1) injury in fact, (2) causation, and (3)

redressability. See Bennett v. Spear, 520 U.S. 154, 167 (1997);

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).

A plaintiff suffers injury in fact when there has been “an

invasion of a legally protected interest which is (a) concrete

and particularized, and (b) actual or imminent, not conjectural

or hypothetical.” Lujan, 504 U.S. at 560 (internal quotations

and citations omitted). The causation requirement is met when

the injury is such that it is “‘fairly . . . trace[able] to the

46
challenged action of the defendant, and not . . . th[e] result

[of] the independent action of some third party not before the

court.’” Id. at 560-61 (alterations in original) (quoting Simon

v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976)).

As for redressability, it must be “likely, as opposed to merely

speculative, that the injury will be redressed by a favorable

decision.” Id. at 561 (internal quotations and citation

omitted).

On appeal,41 Saitas does not appear to argue that Plaintiffs

have not suffered an injury in fact or that they fail to

demonstrate causation.42 Rather, Saitas focuses his challenge on

the redressability requirement. Saitas argues that an injunctive

order requiring him to classify the Deepwood and South Loop 12

sites as “open dumps,” and to formally submit the names of those

sites to the EPA for inclusion on the ODI, will not remedy the

problem posed by the illegal dumps because there is no

41
Saitas also asserted this defense in the district court,
but the court did not address it, choosing rather to decide on
the merits. The district court based its judgment that Saitas be
dismissed from the suit on Plaintiffs’ inability to carry their
burden on the claims.
42
Because standing is a jurisdictional doctrine, we
nevertheless must insure that the injury-in-fact and causation
elements are satisfied.

47
correlation between classification and enforcement.43 Saitas

analogizes the instant case to Steel Co.

Plaintiffs acknowledge that if they were seeking only to

have the dumps classified as open dumps and listed on the ODI,

then standing could be problematic, as in Steel Co. However,

they interpret the RCRA not only to require Saitas to classify

Deepwood and South Loop 12 as open dumps and submit them for the

ODI, but also to require Saitas either to upgrade or to close the

dumps. Thus, Plaintiffs assert that their requested relief goes

beyond merely listing the Deepwood and South Loop 12 dumps on the

ODI, noting that they strove to obtain an injunction that would

also require Saitas to take steps to close the dumps or upgrade

them to federal standards and to take the steps necessary to

43
Saitas also points out that the EPA has not given
planning grants for the ODI since fiscal year 1981 and that the
ODI was last published in 1985. We agree with the district court
that this fact does not dispose of Plaintiffs’ claims:

The provision of the Texas Administrative Code that
grants Saitas the authority to evaluate sites to
determine whether to place them on the ODI, 30 TEX.
ADMIN. CODE § 335.304 (West 1998), became effective May
28, 1986. The fact that Saitas was granted this
authority after 1985 runs directly counter to his
argument that the statutory provisions relating to the
ODI were no longer in effect after 1985, the date of
the last published ODI.

See also Guidelines for Development and Implementation of State
Solid Waste Management Plans and Criteria for Identification of
Solid Waste Disposal Facilities and Practices, 46 Fed. Reg.
47048, 47048 (Sept. 23, 1981) (EPA stating that, although future
funds have not been allocated, it “remain[s] ready . . . to
perform its statutory duty under Section 4007 to take action to
approve or disapprove plans submitted by the States”).

48
eliminate the existing health hazards and to minimize potential

health hazards. We agree with Plaintiffs that they have

standing.

First, Plaintiffs have amply demonstrated an injury in fact.

At least two-million cubic yards of waste, approximately forty-

feet deep, are present at the Deepwood dump, which is adjacent to

Plaintiffs’ residential neighborhoods. Residents close to the

dumps report the appearance of snakes and rats in their backyards

since the beginning of the illegal dumping. Asbestos and

benzo(a)athracene have been detected at the Deepwood dump, and

benzene has been discovered in excess of state limits. The

Deepwood dump has caught fire and burned several times, and a

significant fire hazard still exists at the dump. Solid waste

continues to be dumped on the South Loop 12 site, with the State

discovering during a 1991 inspection that the area of the waste

along the alley behind the homes has been expanding. The City

and State themselves have acknowledged that both dumps constitute

a hazard to the public health. These facts, among others,

demonstrate a concrete, actual injury and thus satisfy the first

standing requirement.

Next, we find that Plaintiffs have demonstrated causation.

The district court found that because most dumps do not apply for

a state permit, the State’s strategy of listing only previously

permitted sites on the ODI “greatly reduced the number of

existing open dumps in Texas that could potentially find their

49
way onto the ODI.” The court also found that all of the dumps

that the State did list on the ODI were subsequently upgraded to

meet the EPA’s sanitary landfill criteria. From our review of

the record, we find that the district court did not err in making

these findings. Therefore, it can be said that Plaintiffs’

injury is “fairly traceable” to the actions of Saitas as it is

likely that conditions at the Deepwood and South Loop 12 dumps

would have been ameliorated if Saitas had acted to set the

process in motion. Had the Deepwood and South Loop 12 dumps been

placed on the ODI (which, Plaintiffs contend, is required by the

RCRA44), Saitas would have been obligated to plan for and

implement the closing or upgrading of the dumps under 40 C.F.R.

§ 256.23.

We also agree with Plaintiffs that Steel Co. is inapposite

to the instant case and find that they have satisfied the

redressability requirement as well. In Steel Co., a citizens

group sought declaratory judgment that the defendant violated the

Emergency Planning and Community Right to Know Act (the “EPCRA”),

42 U.S.C. § 11046(a)(1), by failing to file timely annual

44
As described earlier in this section, Plaintiffs have a
colorable claim under their interpretation of the RCRA. See
Steel Co., 523 U.S. at 96 (stating that standing, which is
jurisdictional, “is not defeated . . . by the possibility that
the . . . petitioners [may not recover,]” i.e., that “‘the right
of the petitioners to recover under their complaint will be
sustained if the . . . [law is] given one interpretation and will
be defeated if [it is] given another’” (quoting Bell v. Hood, 327
U.S. 678, 682, 685 (1946))).

50
emergency and hazardous chemical inventory forms. See Steel Co.,

523 U.S. at 86-88. Unlike the instant case, the Steel Co.

defendant filed all of the overdue reports with the relevant

agencies after receiving notice from the plaintiff that it was in

violation of the EPCRA (even before the civil suit was filed).

See id. at 88. The Supreme Court itself subsequently noted this

very distinction in Friends of the Earth, Inc. v. Laidlaw

Environmental Services (TOC), Inc., 528 U.S. 167 (2000). The

Court stated:

We specifically noted in [Steel Co.] that there was no
allegation in the complaint of any continuing or
imminent violation, and that no basis for such an
allegation appeared to exist. In short, Steel Co. held
that private plaintiffs, unlike the Federal Government,
may not sue to assess penalties for wholly past
violations, but our decision in that case did not reach
the issue of standing to seek penalties for violations
that are ongoing at the time of the complaint and that
could continue into the future if undeterred.

Id. at 187-88 (internal citations omitted); see also 13 CHARLES

ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 3531.10,

at 868 (Supp. 2000) (“Many aspects of the [ruling in Steel Co.]

rested on the conclusion that the plaintiff could not achieve

standing by seeking remedies that would advance the public

interest in deterring future violations or punishing past

violations.”).

In this case, Saitas did not act to classify properly the

Deepwood and South Loop 12 sites as open dumps and then execute

the resulting upgrade/closure process after being informed by

51
Plaintiffs of alleged violations of federal law (as the Steel Co.

defendant had done). Plaintiffs have alleged longstanding and

uncorrected violations of Saitas’s obligations to plan for and

accomplish the elimination of the hazards caused by the dumps.

Thus, an injunction requiring Saitas to upgrade or close the

dumps would redress the hazards created by those dumps.45 See

Meghrig, 516 U.S. at 484 (stating that “a private citizen suing

under § 6972(a)(1)(B) could seek a mandatory injunction, i.e.,

one that orders a responsible party to ‘take action’ by attending

to the cleanup and proper disposal of toxic waste, or a

prohibitory injunction, i.e., one that ‘restrains’ a responsible

party from further violating [the] RCRA”); Sealy Conn., Inc. v.

Litton Indus., Inc., 989 F. Supp. 120, 124 (D. Conn. 1997)

(stating that “mandatory injunctions are authorized by

§ 6972(a)(1)(B)” for attending to the cleanup and proper disposal

of toxic waste); cf. United States v. Price, 688 F.2d 204, 214

(3d Cir. 1982) (stating that § 6973, see supra note 22,

45
Therefore, Saitas’s assertions that merely requiring him
to place the Deepwood and South Loop 12 dumps on the ODI would be
ineffectual are unavailing; Saitas mischaracterizes the relief
sought by Plaintiffs and also fails to recognize that once those
dumps appear on the ODI, the upgrade/closure requirements are
triggered under the regulations. We also note that even if all
that Plaintiffs were seeking to vindicate were procedural rights,
we have previously stated: “[T]he Supreme Court has counseled
that, in a procedural rights case . . ., a plaintiff is not held
to the normal standards for redressability and immediacy.”
Sierra Club v. Peterson, 185 F.3d 349, 360 (5th Cir. 1999)
(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 573 n.7
(1992)); see also Sierra Club v. Glickman, 156 F.3d 606, 613 (5th
Cir. 1998).

52
“authorizes the cleanup of a site, even a dormant one, if that

action is necessary to abate a present threat to the public

health or the environment”); United States v. Valentine, 856 F.

Supp. 627, 633 (D. Wyo. 1994) (stating that “[i]t is plain

. . . that [§ 6973, see supra note 22,] empowers [a court] to

grant the full range of equitable remedies and also all remedies

traditionally provided under the common law of nuisance, at least

so long as such relief serves to protect the public health and

environment”).

2. The Eleventh Amendment

Saitas argues on appeal46 that he is protected from suit by

the Eleventh Amendment and that the suit cannot be maintained

under Ex parte Young, 209 U.S. 123 (1908). The Eleventh

Amendment states: “The Judicial power of the United States shall

not be construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United States by

Citizens of another State, or by Citizens or Subjects of any

Foreign State.” U.S. CONST. amend. XI. “Although by its terms

the Amendment applies only to suits against a State by citizens

of another State, . . . the Amendment’s applicability [has been

extended] to suits by citizens against their own States.” Bd. of

Trustees of the Univ. of Ala. v. Garrett, 121 S. Ct. 955, 962

(2001).

46
See supra note 41.

53
 Because Plaintiffs have sued a state official in his

official capacity, we address whether the doctrine of Ex parte

Young operates in this case. As will be explained below, we find

that Plaintiffs’ suit for prospective injunctive relief under the

RCRA may proceed against the individual state official sued in

his official capacity, Jeffrey A. Saitas, Executive Director of

the TNRCC.47

Ex parte Young

Ex parte Young held that the Eleventh Amendment does not bar

a suit against a state official who is alleged to be acting in

violation of federal law. See 209 U.S. 123, 159-60 (1908); see

also Garrett, 121 S. Ct. at 968 n.9; Pennhurst State Sch. & Hosp.

v. Halderman, 465 U.S. 89, 102-03 (1984); Edelman v. Jordan, 415

U.S. 651, 667-69 (1974); AT&T Communications v. Bellsouth

Telecomms. Inc., 238 F.3d 636, 647 (5th Cir. 2001); Earles v.

State Bd. of Certified Pub. Accountants, 139 F.3d 1033, 1039 (5th

Cir. 1998). The Ex parte Young doctrine is premised on the

concept that a state cannot authorize its officials to violate

the Constitution and laws of the United States. See Ex parte

Young, 209 U.S. at 160 (“The State has no power to impart to [the

state officer] any immunity from responsibility to the supreme

authority of the United States.”). The Supreme Court’s

“decisions repeatedly have emphasized that the [Ex parte] Young

47
See supra note 5.

54
doctrine rests on the need to promote the vindication of federal

rights.” Pennhurst, 465 U.S. at 105.

In this case, we find that Plaintiffs’ claims against

Saitas are within the ambit of Ex parte Young. First, having

sued Saitas in his official capacity, Plaintiffs are seeking

prospective injunctive relief,48 as opposed to retrospective

relief. See Edelman, 415 U.S. at 667-69 (rejecting an injunction

ordering retroactive payment of previously owed monetary

benefits). “The distinction between that relief permissible

under the doctrine of Ex parte Young and that found barred in

Edelman was the difference between prospective relief on one hand

and retrospective relief on the other.” Quern v. Jordan, 440

U.S. 332, 337 (1979).

Second, Plaintiffs are also alleging violations of federal

law, specifically the RCRA, and not state law. The regulations,

requirements, and standards that Plaintiffs seek to enforce

pursuant to 42 U.S.C. § 6972(a)(1)(A) are federal statutory and

regulatory provisions: 42 U.S.C. §§ 6943(a)(2) & (3), 6944; 40

C.F.R. § 256.23(a), (c), & (d). Although the state plan provides

48
Plaintiffs request injunctions requiring Saitas to
classify the Deepwood and South Loop 12 sites appropriately as
open dumps and then either to upgrade or close the dumps such
that the health hazards are eliminated or minimized. See
Edelman, 415 U.S. at 667-68 (“[T]he fiscal consequences to state
treasuries in these [injunctive relief] cases were the necessary
result of compliance with decrees which by their terms were
prospective in nature. . . . Such an ancillary effect on the
state treasury is a permissible and often inevitable consequence
of the principle announced in Ex parte Young.”).

55
that the State will comply with these federal provisions,

Plaintiffs are not seeking to enforce the plan itself and

therefore do not run afoul of Pennhurst’s admonition regarding

state law claims. See Pennhurst, 465 U.S. at 106 (concluding

that “[Ex parte] Young and Edelman are inapplicable in a suit

against state officials on the basis of state law”); Earles, 139

F.3d at 1039-40.

Saitas does not appear to contest that Plaintiffs are

seeking prospective injunctive relief for violations of federal

law. Rather, Saitas argues that state officers cannot be sued to

enforce federal statutes that contain comprehensive enforcement

mechanisms. Saitas focuses on Seminole Tribe of Florida v.

Florida, 517 U.S. 44 (1996), in which the Supreme Court held:

“[W]here Congress has prescribed a detailed remedial scheme for

the enforcement against a State of a statutorily created right, a

court should hesitate before casting aside those limitations and

permitting an action against a state officer based upon Ex parte

Young.” Id. at 74.

In Seminole Tribe, the Court found that Congress intended to

limit the availability of an Ex parte Young suit against state

officers for violations of federal statutory law when it enacted

the Indian Gaming Regulatory Act (the “IGRA”). See id. at 75-76.

However, the statute that gives rise to Plaintiffs’ claims in

this case is distinguishable from the IGRA. In Seminole Tribe

itself, the Court differentiated between the IGRA and statutes

56
such as the Clean Water Act (the “CWA”). See 517 U.S. at 75 n.17

(noting that the IGRA provision at issue “stands in contrast to”

provisions such as those under the CWA, in which Congress is

clear that it intends to authorize federal jurisdiction over

government entities and focusing on the “any person” language in

the CWA citizen suit provision). We are persuaded that the

similarity of the citizen suit provisions of the CWA and the RCRA

requires like interpretation. See U.S. Dep’t of Energy v. Ohio,

503 U.S. 607, 615-16 (1992). The CWA authorizes citizen suits

against any person (including (i) the United States,
and (ii) any other governmental instrumentality or
agency to the extent permitted by the eleventh
amendment to the Constitution) who is alleged to be in
violation of (A) an effluent standard or limitation
under this chapter or (B) an order issued by the
Administrator or a State with respect to such a
standard or limitation.

33 U.S.C. § 1365(a)(1) (2000). Similarly, Plaintiffs are suing

pursuant to the RCRA provision that authorizes citizens suits

against any person (including (a) the United States,
and (b) any other governmental instrumentality or
agency, to the extent permitted by the eleventh
amendment to the Constitution) who is alleged to be in
violation of any permit, standard, regulation,
condition, requirement, prohibition, or order.

42 U.S.C. § 6972(a)(1)(A). That the RCRA authorizes suits

against “any person” “to the extent permitted by the eleventh

amendment” clearly indicates that Congress specifically intended

to permit suits against states within the bounds of the

Amendment. See, e.g., Prisco v. New York, No. 91 Civ. 3990

(RLC), 1996 WL 596546, at *16 (S.D.N.Y. Oct. 16, 1996)

57
(determining that Seminole Tribe did not bar plaintiff’s RCRA

claim under Ex parte Young); cf. S. REP. NO. 92-414, at 64 (1971),

reprinted in 1972 U.S.C.C.A.N. 3668, 3730 (stating that “if the

Federal, State, and local agencies fail to exercise their

enforcement responsibility, the public is provided the right to

seek vigorous enforcement action under the citizen suit

provisions”); Natural Res. Def. Council v. Cal. Dep’t of Transp.,

96 F.3d 420, 424 (9th Cir. 1996) (finding that “Congress

implicitly intended to authorize citizens to bring Ex parte Young

suits against state officials with the responsibility to comply

with [the CWA]”).

We thus find the RCRA, with its explicit reference to the

Eleventh Amendment and its similarity to the CWA, to be precisely

the sort of statute envisioned by the Seminole Tribe Court to

authorize an Ex parte Young action. See 517 U.S. at 75 n.17.

Far from demonstrating Congress’s intention to bar access to Ex

parte Young, the RCRA embraces the Ex parte Young doctrine as a

feature of its remedial scheme. Therefore, Plaintiffs’ RCRA

claim against Saitas is not barred by Seminole Tribe’s exception

to the doctrine of Ex parte Young.

C. Plaintiffs’ Claims Against Saitas

We now turn to Plaintiffs’ claims against Saitas, namely

that Saitas was obligated to classify the Deepwood and South Loop

12 sites as open dumps and then to set in motion procedures to

upgrade or close those dumps. See supra Part IV.B.1. Plaintiffs

58
assert that Saitas’s failure to take these actions places Saitas

in violation of 42 U.S.C. §§ 6943(a), 6944, 6945(a) & (b), and

the relevant regulations, particularly 40 C.F.R. § 256.23. See

id. Plaintiffs seek to enforce these obligations via the citizen

suit provision in § 6972(a)(1)(A).

The district court did not err in finding that Plaintiffs

have not carried their burden on their claims against Saitas.

Plaintiffs failed to demonstrate that Saitas’s actions

contravened the statutory provisions and regulations that are the

basis of their suit. In essence, Plaintiffs seek to add

requirements not explicitly dictated by the statute.

As discussed supra in Part IV.A, the RCRA places several

conditions49 on states in order for them to receive federal

funding for waste management. See 42 U.S.C. § 6947(b). A state

is required to submit a solid waste management plan, which must

be approved by the EPA. See id. §§ 6942, 6947. This approval

depends upon the plan satisfying the requirements in the RCRA.

See id. § 6943.

49
Plaintiffs spend considerable time arguing that these
conditions create enforceable obligations under Pennhurst State
School & Hospital v. Halderman, 451 U.S. 1, 24 (1981) (stating
that a state’s knowing and voluntary acceptance of conditions in
exchange for federal funding will create substantive rights
enforceable against a state). We are not in disagreement with
this proposition. As will be explained infra in the text,
Plaintiffs’ claim fails, not because a state’s obligations in the
RCRA are unenforceable, but because Plaintiffs have not
demonstrated that Saitas has violated any of those obligations.

59
 The Texas state plan, which was approved by the EPA, informs

the reader that the State “has undertaken a program to classify

all land disposal facilities in Texas.” It states further:

“Since all disposal sites could not be inventoried immediately, a

strategy was developed to determine which facilities would be

inventoried first. . . . A priority list was then prepared for

the first year of the [ODI] and the [ODI] was begun.” This meets

the requirement in 40 C.F.R. § 256.23(a) that the “State plan

shall provide for the classification of existing solid waste

disposal facilities.” The plan also explains that once the State

classifies a site as an open dump, the State will “continue

surveillance and enforcement to eliminate [the] existing open

dump by closing or upgrading” and includes a “procedure chart for

upgrading or closure of open dumps.” These features of the plan

are in line with § 6943(a)(3)’s requirement that the “plan shall

provide for the closing or upgrading of all existing open dumps”

and with 40 C.F.R. § 256.23(d)’s statement that the plan must

account for “long-term monitoring and contingency plans.”

Plaintiffs would, in essence, have us read another provision into

the RCRA that compels Saitas to act beyond these statutory

requirements. We cannot adopt their interpretation of the

statute.

We find the statutory requirements satisfied. Saitas

submitted a plan that conformed to the requirements in the RCRA.

The statutory provisions and relevant regulations obligate a

60
state “to provide for” certain elements in the state plan, which

Saitas did. The requirements that a state “shall take [certain]

steps” appear in the context of a facility already classified as

an open dump. See, e.g., 40 C.F.R. § 256.23(c) & (d). We do not

find any “permit, standard, regulation, condition, requirement,

prohibition, or order which has become effective pursuant to [the

RCRA],” 42 U.S.C. § 6972(a)(1)(A), that a state “shall take

steps” to classify waste disposal facilities. Rather, we find in

the RCRA that a state “shall provide for” such a classification

in its plan, which, as we have explained, Saitas has done. Our

conclusion regarding Saitas’s duties in placing the Deepwood and

South Loop 12 dumps on the ODI is buttressed by the EPA’s

comments in amending 40 C.F.R. §§ 256 and 257: “[The] EPA is

required to publish an inventory of open dumps, based on the

State findings. In doing so, [the] EPA does not pass on the

adequacy of the State determinations. Likewise the decision to

remove a facility from the inventory is a State determination.”

Guidelines for Development and Implementation of State Solid

Waste Management Plans and Criteria for Identification of Solid

Waste Disposal Facilities and Practices, 46 Fed. Reg. 47048,

47048 (Sept. 23, 1981).

While Plaintiffs valiantly attempt to read a requirement

into the RCRA that Saitas must not only “provide for” the

classification of all waste facilities, but also must “take

steps” to perform the classification, we do not find that

61
Congress included such a specification in the statute.

Therefore, Plaintiffs have not demonstrated that Saitas violated

a permit, standard, regulation, condition, requirement,

prohibition, or order, and as such, fail to carry their burden on

their § 6972(a)(1)(A) claims concerning the Deepwood and South

Loop 12 dumps.

V. CONCLUSION

For the above-stated reasons, we AFFIRM the judgment of the

district court. Stay pending appeal VACATED. Plaintiffs and the

City shall each bear one-half of the costs of this appeal.

62