                                PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 14-1825


BRUCE GOLDFARB; MICHAEL GALLAGHER,

                 Plaintiffs - Appellants,

           and

RUTH SHERRILL; ELIZABETH ARNOLD; MERAB RICE; SHERRY MOORE-
EDMONDS; TIM BULL; JULIA DINKINS,

                 Plaintiffs,

           v.

MAYOR AND CITY COUNCIL OF BALTIMORE; CITY OF BALTIMORE
DEVELOPMENT CORPORATION; CBAC GAMING, LLC; CBAC BORROWER,
LLC; MARYLAND CHEMICAL COMPANY, INC.,

                 Defendants – Appellees.



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


Argued:   March 25, 2015                     Decided:   July 1, 2015


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


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


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




                               2
AGEE, Circuit Judge:

      The    Resource      Conservation        and   Recovery    Act   (“RCRA”),    42

U.S.C. § 6901 et seq., “establishes a cradle-to-grave regulatory

program for hazardous waste management.”                     Envtl. Tech. Council

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

Maryland     residents      brought     statutory       claims    under     the   RCRA

against the current and former owners of an industrial property

in   Baltimore      alleged   to   have     been     contaminated      by   hazardous

waste.      The district court granted the property owners’ motions

to dismiss the claims.             For the reasons set forth below, we

vacate     the   district     court’s     judgment     and    remand    for   further

proceedings.



                                          I. 1

      In    2012,    the   City    of   Baltimore 2     (“the    City”)     and   CBAC

Gaming, LLC (“CBAC Gaming”) entered into an agreement to develop

a tract of approximately 8.58 acres in Baltimore for use as a


      1Given the posture of this case, we accept as true the
facts alleged in the complaint, construing them in the light
most favorable to the plaintiffs-appellants.           See Nemet
Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255
(4th Cir. 2009).
     2 The City Council of Baltimore, the Mayor of Baltimore, and

the City of Baltimore Development Corporation are named party
defendants.   Though their precise roles varied, the complaint
essentially alleges the same conduct against each of them. For
purposes of this appeal, these parties will be collectively
referred to as “the City.”


                                           3
casino and ancillary facilities (“the Casino Site”).                         As a part

of the arrangement, the City transferred ownership of some of

the land (the “Warner Street Properties”) to CBAC Borrower, LLC,

a subsidiary of CBAC Gaming, while it retained ownership of the

remaining parcels (the “Russell Street Properties”). 3                          Although

ownership of the Casino Site is divided, CBAC Gaming alone will

operate the casino and related facilities.

       Prior to the Casino Site development, the property had been

the location of “various industrial uses” for over a century.

(J.A.       18.)       In     particular,         Maryland     Chemical     Co.,      Inc.

(“Maryland          Chemical”)      previously       owned     the    Russell      Street

Properties,         where    it   conducted       “chemical    manufacturing       and/or

bulk        chemical       storage,      repackaging     and     distribution”         for

approximately fifty years.               (J.A. 18.)

       The     City    also       owns   adjacent     property       (the   “Waterfront

Parcels”) located between the Casino Site and the Middle Branch

of the Patapsco River.                Given the topography of the area, the

Casino       Site    and    Waterfront     Parcels     “slope[]      downward    to    the

southeast” until reaching the shoreline of the river.                               (J.A.


        3
       Defendant CBAC Gaming, LLC “is a consortium of investors
formed to develop and operate the proposed” casino.    (Appendix
(“J.A.”) 15.) CBAC Borrower, LLC “is an indirectly wholly-owned
subsidiary of CBAC Gaming.” (J.A. 15.) Although their precise
roles vary, these parties will be referred to collectively as
“CBAC Gaming,” as they can be properly treated as one entity for
the purposes of our analysis.


                                              4
17.)        The Waterfront Parcels are used for various recreational

activities,       and    include     a    pathway        for    biking,       running,      and

walking.

        Relying on environmental assessments performed in the 1990s

and early 2000s, Plaintiffs Bruce Goldfarb, Michael Gallagher,

and    Tim    Bull    (collectively       “Goldfarb”)          allege        that   hazardous

waste       contaminates      portions    of       the   Casino       Site    and   has    been

migrating       to      the    Waterfront          Parcels          and   Middle         Branch.

Goldfarb, who utilizes the recreational activities available in

and around the Waterfront Parcels and Middle Branch, filed a

Complaint in the United States District Court for the District

of Maryland alleging that the City, CBAC Gaming, and Maryland

Chemical’s actions (and inactions) on the Casino Site violate

RCRA.

       The City, CBAC Gaming, and Maryland Chemical each moved to

dismiss       under     Rule    12(b)     of       the    Federal         Rules     of    Civil

Procedure.        The district court granted the motions as to all

claims against all defendants, though its specific reasoning was

sometimes       imprecise      and   it   varied         as    to    each    defendant       and

claim.       More will be said about the court’s specific rationales

below. 4


        4
       Several of the district court’s rulings are not challenged
on appeal.    It granted a motion to file a surreply brief; it
concluded that although Goldfarb and his remaining co-appellants
(Continued)
                                               5
       Goldfarb   timely    appeals      from    the       district     court’s      order

dismissing the Complaint.           We have jurisdiction under 28 U.S.C.

§ 1291.



                                         II.

       “RCRA is a comprehensive environmental statute that governs

the    treatment,   storage,       and   disposal         of   solid    and    hazardous

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

“primary purpose . . . is to reduce the generation of hazardous

waste and to ensure the proper treatment, storage, and disposal

of that waste which is nonetheless generated, ‘so as to minimize

the    present    and     future     threat      to       human   health       and    the

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

also H.R. Rep. No. 94-1491(I), at 4 (1976), reprinted in 1976

U.S.C.C.A.N. 6238, 6241 (stating that the purpose behind RCRA

was to “eliminate[] the last remaining loophole in environmental

law”   by   regulating     the   “disposal       of       discarded     materials     and

hazardous wastes”).

       Although     the    Administrator             of    the    EPA     has        chief

responsibility      for   implementing         and    enforcing        RCRA,    “private



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


                                          6
citizens [can] enforce its provisions in some circumstances.”

Meghrig, 516 U.S. at 484 (citing 42 U.S.C. § 6972).                           In relevant

part, § 6972(a) provides that “any person may commence a civil

action on his own behalf--”

      (1)(A) against any person . . . who is alleged to be
             in   violation    of    any   permit,    standard,
             regulation,        condition,         requirement,
             prohibition,   or    order  which     has   become
             effective pursuant to [RCRA]; or

          (B) against any person . . . who has contributed or
              who is contributing to the past or present
              handling, storage, treatment, transportation,
              or disposal of any solid or hazardous waste
              which may present an imminent and substantial
              endangerment to health or the environment[.]

“Thus, a suit pursuant to subsection (a)(1)(A) must be based on

an   ongoing      violation,     whereas       a    suit   under     (a)(1)(B)    may   be

predicated      on    a     [qualifying]       past    [or    present]        violation.”

Sanchez v. Esso Standard Oil Co., 572 F.3d 1, 7 (1st Cir. 2009)

(emphases added); see discussion infra Section IV.A.                             As their

plain   language          indicates,    each       subsection       contains    different

elements and targets somewhat different conduct.

      Subsection           (a)(1)(A)     authorizes          so-called        “permitting

violation      claims”      to   be    brought      against     a    defendant    who   is

alleged     “to      be    [currently]     in       violation”       of   a    RCRA-based

mandate, regardless of any proof that its conduct has endangered

the environment or human health.                    The permit, etc., subject to

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


                                           7
standard         that        became       effective          pursuant      to     RCRA.        See     §

6972(a)(1)(A); Ashoff v. City of Ukiah, 130 F.3d 409, 411 (9th

Cir. 1997) (“[I]f state standards ‘become effective pursuant to’

RCRA,       a    citizen          can    sue     in     federal         court    to     enforce      the

standard.”).            This is so because RCRA “authorizes the states to

develop         and     implement         their        own       hazardous      waste     management

scheme[s] ‘in lieu of the federal program,’” Safety-Kleen, Inc.

v. Wyche, 274 F.3d 846, 863 (4th Cir. 2001) (quoting 42 U.S.C. §

6926), so long as the state system is at least the “equivalent”

of the federal program.                       § 6929(b).           Maryland is authorized to

operate such a parallel regulatory system, and has adopted the

statutory and regulatory framework to do so.                                       See Notice of

Final       Determination                on     Maryland’s          Application          for    Final

Authorization [under RCRA], 50 Fed. Reg. 3511 (Jan. 25, 1985).

To remedy a subsection (a)(1)(A) violation, the district court

has    authority            to    enforce       the        “permit,      standard,       regulation,

condition,         requirement,               prohibition,         or    order”    at    issue.        §

6972(a).

       At the same time, subsection (a)(1)(B) authorizes so-called

“imminent         and    substantial            endangerment”           claims     to    be    brought

against a defendant whose conduct –- whether ongoing or purely

in    the       past    –-       “may”    now    pose       an    “imminent       and    substantial

endangerment           to     health      or     the       environment.”          In    contrast      to

claims          brought          under        subsection          (a)(1)(A),          claims    under

                                                       8
subsection (a)(1)(B) may be brought regardless of whether the

plaintiff can demonstrate that the defendant’s actions violated

a   specific      RCRA-based          permit,       etc.     See     AM   Int’l,       Inc.    v.

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

district     court       has    authority       to    restrain     any     person      who    has

“contributed        or    who    is     contributing         to   the     past    or   present

handling, storage, treatment, transportation, or disposal of any

solid or hazardous waste” referenced in subsection (a)(1)(B).                                   §

6972(a).

       Lastly, to remedy a violation of either subsection, the

district court has authority “to order [a defendant] to take

such other action as may be necessary.”                       § 6972(a).

       We   review       de    novo    both     the   district       court’s      Rule      12(b)

dismissal        and    its     statutory       interpretation.            Pitt     Cnty.     v.

Hotels.com,        L.P.,       553    F.3d    308,     311    (4th      Cir.     2009)      (Rule

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

220,   222       (4th    Cir.    2002)       (Rule     12(b)(6)      dismissal);         In    re

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

construction).



                         III.    Claims Against CBAC Gaming

       The Complaint alleges that although CBAC Gaming agreed to

engage      in     certain           remedial       activities       as     part       of     the

construction of the casino and its ancillary facilities, those

                                                9
undertakings did not comply with RCRA and so did not adequately

address    contamination          at   the    Casino        Site.        Furthermore,   the

Complaint       alleged        that     CBAC’s        Casino        Site        construction

activities       would     continue      to        contribute       to    and     exacerbate

existing contamination in the soil and groundwater, as well as

its migration to the Waterfront Parcels and Middle Branch.                               In

particular, Goldfarb pled that CBAC Gaming’s development actions

violated subsection (a)(1)(A) because they entailed generating,

treating,       storing,       disposing      of,     and     transporting        hazardous

wastes     without       the     requisite         permits.         In     addition,     the

Complaint alleged CBAC Gaming’s construction activities violated

subsection (a)(1)(B) because they contributed to hazardous waste

contamination        that       presented      an      imminent          and     substantial

endangerment to human health and the environment.

         CBAC Gaming moved to dismiss the Complaint pursuant to

Federal Rule of Civil Procedure 12(b)(1) for lack of subject

matter jurisdiction and Rule 12(b)(6) for failure to state a

claim.     In relevant part, CBAC Gaming contended that the claims

against    it    should     be    dismissed         under    RCRA’s      anti-duplication

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

National     Pollutant           Discharge         Elimination        System       (“NPDES”)

permit,     which        permitted       discharge           of     stormwater        during

construction of the casino, shielded it from RCRA liability.



                                              10
      The district court granted CBAC Gaming’s motion to dismiss

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

somewhat convoluted, but tracked the following course:                                   Under

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

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

enforcement        of     both      Acts       would         lead      to      inconsistent

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

things,    the    discharge       of    pollutants          from    point     sources       into

navigable waters.           To comply with the CWA, Maryland issued a

general construction stormwater permit (the NPDES permit), and

CBAC Gaming was required to comply with that permit during the

course of the casino construction activities.                               Under the terms

of the NPDES permit, CBAC Gaming must comply with erosion and

sediment control and stormwater management plans.                              Those plans,

in    turn,      mandated    that       CBAC       Gaming       comply       with     specific

remediation       activities      set    forth       in     a   Response       Action       Plan

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

participation in Maryland’s Voluntary Cleanup Program.                                      As a

result,    the    remediation       activities         contained         in    the    RAP    had

effectively been incorporated into the provisions of the NPDES

permit and were no longer voluntary.                            The NPDES permit thus

regulated more than just point source stormwater discharge from

the     Casino     Site,    but        also    covered          CBAC        Gaming’s     other

construction       activities      at    the       Casino    Site      by    virtue    of    the

                                              11
erosion and sediment control and stormwater management plans and

the RAP.      So long as CBAC Gaming complied with those approved

activities, the NPDES permit shielded CBAC Gaming from liability

under the CWA.           Following this path of reasoning, the district

court concluded that the NPDES permit shielded CBAC Gaming from

liability     under       RCRA        since     “further     remedial       requirements

imposed    under     RCRA       would     be    inconsistent       with    the    remedial

activities    already       deemed       appropriate       for    the     [Casino]      Site”

under the NPDES permit.               (J.A. 81.)

       In granting the motion to dismiss as to CBAC Gaming, the

district court did not state whether its ruling was based upon

Rule     12(b)(1)    or     Rule       12(b)(6).         Recognizing       the    district

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

considerable        space       on     brief    to     threshold    issues       that     are

contingent upon which rule the district court in fact utilized.

For example, only under Rule 12(b)(1) would it matter whether

RCRA’s     anti-duplication             provision      implicates       subject      matter

jurisdiction.            What    is     more,    our    inquiry     would    not     be    as

concerned with what materials the district court relied on to

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

34 (4th Cir. 2014) (“When a defendant challenges subject matter

jurisdiction via a Rule 12(b)(1) motion to dismiss, the district

court may regard the pleadings as mere evidence on the issue and

may consider evidence outside the pleadings without converting

                                               12
the proceeding to one for summary judgment.                         However, when the

jurisdictional       facts    are        inextricably      intertwined        with    those

central to the merits, the district court should resolve the

relevant    factual     disputes          only    after    appropriate      discovery.”

(internal alterations, quotation marks, and citations omitted)).

By contrast, only under Rule 12(b)(6) does it matter whether the

district     court     violated          Rule     12(d)’s        limitation     on     what

materials the court can rely on without converting the motion to

dismiss into one for summary judgment.                        Accord Fed. R. Civ. P.

12(d)     (specifying       the     process        a     court     must    follow     when

converting a Rule 12(b)(6) motion to dismiss to a motion for

summary judgment after a district court has been presented with

and   not   excluded       “matters       outside       the    pleadings”);        Hall   v.

Virginia, 385 F.3d 421, 424 n.3 (4th Cir. 2004) (observing that

a court does not convert a motion to dismiss to a motion for

summary     judgment       when     it    takes        judicial    notice     of     public

records); Zak v. Chelsea Therapeutics Int’l Ltd., 780 F.3d 597,

607 (4th Cir. 2015) (same, for judicial notice of adjudicative

facts under Federal Rule of Evidence 201).

      In some cases it could be appropriate to remand for the

district    court    to     clarify       the     basis    for    its     determination.

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

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



                                             13
Rule 12(b)(6) was incorrect.             A remand for clarification would

thus be pointless.



                                   A.   Rule 12(b)(1)

      “To ward off profligate use of the term ‘jurisdiction,’”

the Supreme Court “adopted a ‘readily administrable bright line’

for determining whether to classify a statutory limitation as

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

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

516   (2006)).        Absent       Congress    “clearly        stat[ing]    that    a

threshold     limitation      on    a   statute’s       scope    shall     count   as

jurisdictional,”       “courts       should     treat     the       restriction    as

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

Assuming     the   district    court    viewed    the    RCRA    anti-duplication

provision as jurisdictional, and dismissed under Rule 12(b)(1)

for lack of jurisdiction, it erred. 5

      While the anti-duplication provision may ultimately bar a

plaintiff from obtaining relief in a RCRA suit, that result does

not   mean    that   the   statutory     limitation       is    a    jurisdictional


      5The district court’s opinion gives us some basis for
inferring that it relied on Rule 12(b)(1). Most pointedly, the
district court addressed the claims against CBAC Gaming in a
different section than the one containing the heading: “Failure
to State a Claim Under Rule 12(b)(6) and Iqbal/Twombly,” which
introduces the court’s analysis as to the other defendants.
(J.A. 82.)


                                         14
barrier to recovery.           See Arbaugh, 546 U.S. at 515.             Instead,

when we examine its plain language, § 6905(a) does not suggest a

jurisdictional character:

       Nothing in this chapter [i.e., RCRA] shall be
       construed to apply to (or to authorize any State,
       interstate, or local authority to regulate) any
       activity or substance which is subject to the [CWA] .
       . . except to the extent that such application (or
       regulation) is not inconsistent with the requirements
       of [the CWA, among other federal statutes].

§ 6905(a).

       The statute simply instructs that RCRA provisions must give

way when enforcement would be “inconsistent” with any of the

other delineated acts.          See Coon ex rel. Coon v. Willet Dairy,

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

duplication      provision      to   prohibit     plaintiff’s     RCRA    claims

challenging     identical      activities    authorized     by    a   CWA-based

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

Supreme Court’s guidance, we conclude that the anti-duplication

provision implicates the viability of an RCRA cause of action

rather than the court’s jurisdiction to hear the claim.                         See

Verizon Md., Inc. v. PSC, 535 U.S. 635, 642-43 (2002) (“‘[T]he

absence of a valid (as opposed to arguable) cause of action does

not    implicate   subject-matter      jurisdiction,      i.e.,   the    court’s

statutory or constitutional power to adjudicate the case.’                       As

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

of    the   petitioners   to    recover   under   their   complaint      will    be

                                       15
sustained if the Constitution and laws of the United States are

given one construction and will be defeated if they are given

another,’ unless the claim ‘clearly appears to be immaterial and

made solely for the purpose of obtaining jurisdiction or where

such a claim is wholly insubstantial and frivolous.’” (quoting

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

(1998))).          Viewed         through       this       lens,    the     anti-duplication

provision is more in the nature of an affirmative defense like

the     statute        of     limitations             or    the     failure      to     exhaust

administrative remedies, which are to be timely asserted by a

defendant who chooses to do so.                        See Hosanna-Tabor Evangelical

Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 709 n.4 (2012)

(noting a dispute amongst federal circuit courts as to whether

the   ministerial           exception      to    employment        discrimination        claims

was   “a    jurisdictional           bar    or    a    defense      on    the   merits,”      and

concluding that it “operates as an affirmative defense to an

otherwise        cognizable        claim,       not    a    jurisdictional       bar     .    .    .

because the issue presented by the exception is ‘whether the

allegations       the       plaintiff      makes       entitle      him    to   relief,’      not

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

quotation        marks      and    alterations         omitted)).           Accordingly,          it

would have        been      error    to    dismiss         the    Complaint     against       CBAC

Gaming for lack of subject matter jurisdiction pursuant to Rule



                                                 16
12(b)(1) because a defense to liability under RCRA based on §

6905(a) does not implicate jurisdiction.



                                     B.   Rule 12(b)(6)

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

determine        whether     the     complaint     alleges     sufficient    facts     “to

raise a right to relief above the speculative level” and “to

state a claim to relief that is plausible on its face.”                              Bell

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

directive ordinarily limits a court’s review to the “well-pled

facts in the complaint[, which it must view] in the light most

favorable to the plaintiff.”                  Brockington v. Boykins, 637 F.3d

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

Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013).                            While no

absolute bar exists, a motion to dismiss under Rule 12(b)(6)

does not typically resolve the applicability of defenses to a

well-pled claim.            See Tobey v. Jones, 706 F.3d 379, 387 (4th

Cir.   2013)       (stating      a   motion   to     dismiss    under   Rule    12(b)(6)

“does not resolve contests surrounding facts, the merits of a

claim, or the applicability of defenses”).

       Under narrow circumstances, a court may rely on extrinsic

materials to determine a motion to dismiss without converting

the proceeding into a motion for summary judgment.                          See Fed. R.

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

                                              17
process must be followed to make it proper); see also Zak, 780

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

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

court may properly take judicial notice of “matters of public

record”         and   other       information      that,       under   Federal        Rule    of

Evidence 201, constitute “adjudicative facts.” 6                          Philips v. Pitt

Cnty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir. 2009); see Fed.

R. Evid. 201(b) (stating, in relevant part, that a “court may

judicially         notice     a    fact   that     is    not    subject    to        reasonable

dispute because it” “can be accurately and readily determined

from sources whose accuracy cannot reasonably be questioned”);

Clatterbuck, 708 F.3d at 557 (“[C]ourts may consider relevant

facts obtained from the public record, so long as these facts

are construed in the light most favorable to the plaintiff along

with the well-pleaded allegations of the complaint.” (internal

quotation marks omitted)).

       The parties raise multiple arguments regarding the district

court      taking     judicial      notice    of    certain      “facts”        in    order   to

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

so.     Goldfarb asserts the district court converted the motion to

dismiss into a motion for summary judgment in violation of Rule

12(d).          CBAC Gaming responds that the court did not violate this

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


                                              18
provision because it could have properly taken judicial notice

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

analysis.     In particular, it contends that the NPDES permit, the

City-approved erosion and sediment control plans and stormwater

management plans, and the RAP are each public records containing

adjudicative facts subject to judicial notice under Rule 201 of

the Federal Rules of Evidence. 7                  CBAC Gaming maintains that once

the    district     court    in     effect     took      judicial       notice    of   those

exhibits     and    their    contents,       it    was    free     to    interpret     their

meaning and draw legal conclusions.                   Goldfarb, in turn, replies

that the district court never claimed it was taking judicial

notice and therefore necessarily failed to identify what facts

it    was    noticing       or    provide      Goldfarb        with      notice    and    an

opportunity        to    respond.       Furthermore,          Goldfarb     contends      the

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

properly     take       notice    of   their      existence,       it    erred    by     then

relying on their contents for the truth of the matters asserted

therein.

       7
       For example, CBAC Gaming points to language in the NPDES
permit not only requiring it to “develop and obtain approval . .
. of . . . erosion and sediment control plans . . . and . . .
stormwater management plans,” Appellees’ Designated Exhibits
(“Ex.”) 169 (§ II.A.3), but also stating that “[v]iolations of
plans for construction activity, including applicable Erosion
and Sediment Control and Stormwater Management Plans, constitute
violations of this permit, State law, and the CWA.” (Ex. 176, §
VI.A.)   It then notes that those plans, in turn, were “subject
to the provisions in the final RAP.” (Ex. 26, § C 50-06.)


                                             19
       Goldfarb     is    correct          at    least      to     the       extent    that     the

district    court       did     not    explicitly          state       that    it     was    taking

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

those “facts” were.              Nevertheless, even if we assume that the

taking of judicial notice was part of the court’s decisional

process, we need not address whether the act of taking such

notice     was    erroneous.               There      are        two     reasons       for     this

conclusion:            First,     regardless          of    how        the    district       court

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

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

judicial notice at any stage of the proceeding.”); Massey v.

Ojaniit, 759 F.3d 343, 353 (4th Cir. 2014) (observing that an

appellate court may take judicial notice of the same materials

as could a district court).                     Second, even assuming the district

court could properly take judicial notice of the contents of the

exhibits, the court’s specific legal analysis was incorrect.

       To grant the motion to dismiss under Rule 12(b)(6), the

district court would have to conclude that § 6905(a) barred a

RCRA    cause     of     action       as    pled      against       CBAC       Gaming       because

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

district court opined to that effect, stating that any “further

remedial requirements imposed under RCRA would be inconsistent

with the remedial activities already deemed appropriate” for the



                                                 20
Casino Site pursuant to the CWA (via the NPDES permit and the

documents it incorporated).                (J.A. 81.)

       Since § 6905(a) (or any other RCRA provision of which we

are aware) does not define “inconsistent,” we give this word its

ordinary dictionary meaning: “lacking consistency: incompatible,

incongruous, inharmonious . . . so related that both or all

cannot be true.”               Webster’s Third Int’l Dictionary 1144; see

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

parts;    not    compatible         with    another     fact    or    claim.”);       Oxford

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

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

then, the CWA must require something fundamentally at odds with

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

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

duplication provision argument where petitioners were “unable to

point    to    any     direct      conflict    between”       RCRA     and    another    act

listed in § 6905(a)).              RCRA mandates that are just different, or

even greater, than what the CWA requires are not necessarily the

equivalent of being “inconsistent” with the CWA.

       Although      the       district     court    recited     the    statutory        term

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

determine       whether        a   conflict        actually    existed        between     the

applicable       RCRA      regulations        and     the     CWA,     much    less      what

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

                                              21
analysis overstates when regulation pursuant to RCRA yields to

the CWA.    It is not enough that the activity or substance is

already regulated under the CWA; it must also be “incompatible,

incongruous, inharmonious.”          The district court’s conclusion is

thus built on the faulty premise that the CWA and RCRA cannot

regulate the same activity under any circumstance. 8                See New

Mexico v. Watkins, 969 F.2d 1122, 1131 (D.C. Cir. 1992) (stating

§ 6905(a) “contemplates joint regulation under both RCRA and

[another act listed in § 6905(a)] in certain circumstances”).

The district court never stated what the NPDES permit, erosion

and sediment control and stormwater management plans, or RAP

regulated that was “inconsistent” with the alleged obligations

of CBAC Gaming under RCRA.            Nor did the court examine what

actions Goldfarb pled CBAC Gaming was required to undertake to

comply with RCRA that were “inconsistent” with the NPDES permit

and its derivative documents.

     The   district    court   simply      did   not    undertake   a    basic

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

consider   whether    RCRA   would    have   required    anything   of    CBAC


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


                                      22
Gaming that would be “inconsistent” with what CBAC Gaming was

already required to do to comply with the CWA.                              Instead, the

district court broadly concluded that since all of CBAC Gaming’s

construction activities would satisfy the CWA as a result of the

CWA’s    permit    shield,       requiring       anything       “further”    under     RCRA

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

was    required.         We   therefore     vacate        and    remand    the    district

court’s decision, if based on Rule 12(b)(6), for the failure to

identify how the Complaint’s RCRA allegations are “inconsistent”

with the CWA.       But in so doing, we also note that the procedural

posture      of   this    case    presents       a   further       ground    of     concern

relating back to the proper scope of a court’s review of matters

outside the pleadings and the taking of judicial notice.                               The

maze    of   cross-references          to   exhibits       and    interpretations       of

specific     provisions       within    them     makes     this     case    particularly

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

noted, CBAC Gaming raised the anti-duplication provision as a

potential defense to liability, and it relied almost exclusively

on    exhibits    outside     the   Complaint        in    doing    so.      That     alone

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

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

(discussing       “the    relatively        rare     circumstances          where    facts

sufficient to rule on an affirmative defense are alleged in the



                                            23
complaint”      such    that   the   defense     could   be    the    basis      for

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

      Furthermore,      the    parties    vehemently     disagree     about      the

nature and scope of the NPDES permit and other exhibits, putting

at issue basic factual matters relevant to interpreting what

those exhibits mean and how they relate to the RCRA claims pled

against   CBAC    Gaming.       We   have     intentionally    bypassed       these

arguments and refrained from mining the exhibits to determine

what, if anything, we could take judicial notice of on appeal.

See Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177,

216 (4th Cir. 2009) (declining to take judicial notice of permit

decision documents and other exhibits because the party seeking

notice sought “notice of its own interpretation of the contents

of those documents” and not just notice of their existence).                     We

are   mindful    that    judicial    notice     must   not    “be    used   as    an

expedient for courts to consider ‘matters beyond the pleadings’

and thereby upset the procedural rights of litigants to present

evidence on disputed matters.” Waugh Chapel S., LLC v. United

Food & Commercial Workers Union Local, 728 F.3d 354, 360 (4th

Cir. 2013).




                                         24
        For    all   these      reasons,    we    vacate    the       district   court’s

judgment granting CBAC Gaming’s motion to dismiss, and remand

for further proceedings consistent with this opinion. 9



                          IV.    Claims Against The City

     The       district      court   dismissed       the    §     6972(a)(1)(A)      and

(a)(1)(B) claims against the City for failure to state a claim.

As noted, to survive a Rule 12(b)(6) motion, “a complaint must

contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’”                             Ashcroft v.

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

570).         This standard requires the complaint to do more than

plead facts that are “‘merely consistent with’ a defendant’s

liability,” but must “allow[] the court to draw the reasonable

inference       that   the      defendant    is    liable       for    the    misconduct

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

should “not be dismissed as long as [it] provides sufficient

detail about [the] claim to show that [the plaintiff] has a

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


                                            25
more-than-conceivable chance of success on the merits.”                      Owens

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

Cir. 2014).



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

       The Complaint alleges the City’s “acts and/or omissions”

with respect to the Casino Site failed to comply with RCRA, in

violation of § 6972(a)(1)(A).            (J.A. 32.)     Concluding that the

Complaint contained inadequate factual allegations and details

pertaining to the alleged contamination at the Casino Site and

its potential migration off site, the district court dismissed

the Complaint for failure to state a claim under Rule 12(b)(6).

(J.A. 86.)    In doing so, the court cited three specific pleading

deficiencies:    that     the    Complaint     (1)   did   not    contain      any

“factual allegations to explain how the removal of contaminated

soil    and/or      sources     of     potential     contaminants      actually

exacerbated or contributed to contamination at the Site”; (2)

did not provide any “factual details pertaining to the alleged

storage   and/or     abandonment       of    leaky   drums,   [nor     had     it]

identified    the     specific       contaminants    associated      with     that

alleged ‘disposal’”; and (3) did not plausibly allege facts to

support “that the migration of contaminants at the Site occurred

during the City’s ownership of the Site.”             (J.A. 86.)



                                        26
        Goldfarb argues on appeal that the district court erred

because the Complaint alleges specific facts, which if proven,

would    support         the    City’s     liability           under     RCRA.           The    City

responds that since the only acts the Complaint alleges it to

have undertaken involve the removal of contamination from the

Casino Site, there is no set of facts under which it could be

liable         for         generating,          handling,          treating,              storing,

transporting,            or    disposing       of    hazardous         or   solid        waste    as

required by RCRA.

        We    agree      with    Goldfarb       that      the    Complaint        sufficiently

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

motion        to    dismiss.         The       shortcomings         the     district           court

identified either do not exist or did not have to be pled to

state a claim at this stage of the proceedings.

        To state a claim under subsection (a)(1)(A), Goldfarb had

to   allege         an     ongoing   “violation           of    any     permit,      standard,

regulation, condition, requirement, prohibition, or order which

has become effective pursuant to” RCRA.                            In Paragraphs 91-93,

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

abandoned          drums      containing       hazardous        wastes      to    leak,        spill

and/or       otherwise        release    into       the    Casino       Site”;     “excavated,

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

soils        and    groundwater”;        and    “excavat[ed],           mov[ed];         mix[ed];

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

                                                27
groundwater located in and around known hot spots of PCE, TCE

and heavy metals.”        (J.A. 28.)      Paragraphs 94-99 allege various

activities CBAC Gaming is alleged to have undertaken as part of

the casino-related construction, and although CBAC Gaming is the

primary developer, the City owns some of the property on which

those activities are occurring.             Paragraph 101 asserts that the

City has

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

(J.A. 29-30.)

     The     Complaint    ties    these      allegations    specifically    to

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

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

hazardous    waste,   treatment,     storage    or   disposal   facility”   (¶

117, J.A. 32); that the City “generated ‘solid waste’ and/or

‘hazardous waste’” without complying with applicable standards

(¶¶ 118, 122, J.A. 33); that the City’s construction activities

entailed the treatment, storage, and/or disposal of hazardous

waste at the Casino Site, and that the City lacked the requisite

permits for owning and operating such a facility (¶¶ 120, 123,

124, J.A. 33-34); and that the above violations “have never been

                                       28
remedied    and     therefore,        are    ongoing”        (¶    125,      J.A.    34).      In

conjunction with these allegations, the Complaint cites specific

rules    promulgated       pursuant         to    RCRA,      which      Goldfarb      contends

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

        The foregoing paragraphs in the Complaint assert specific,

identifiable       actions      attributed           to     the    City      that     allegedly

violated        RCRA-based      mandates,            have       gone     uncorrected,        and

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

those    mandates.        We    have      only       briefly      touched      on   subsection

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

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

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

Inc.,     484     U.S.    49    (1987),          the      Supreme       Court       interpreted

identical language in the CWA to require that for the alleged

harm to be cognizable, it must “lie[] in the present or the

future, not in the past.”                 Id. at 59.        That is to say, “to be in

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

requires        allegations          of     a        “continuous          or     intermittent

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

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

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

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

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

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

                                                29
Gwaltney to require “a continuous or ongoing violation . . . for

liability      to    attach”);     Conn.        Coastal     Fishermen’s    Ass’n     v.

Remington Arms Co., Inc., 989 F.2d 1305, 1315-16 (2d Cir. 1993)

(same).

       At the same time, we agree with the Second Circuit’s view

that the § 6972(a)(1)(A) “to be in violation of” language does

not necessarily require that a defendant be currently engaged in

the    activity      causing     the   continuous          or   ongoing   violation.

Rather, the proper inquiry centers on “whether the defendant’s

actions -- past or present -- cause an ongoing violation of

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

2000);    accord     §   6972(a)(1)(A).           In    other   words,    although    a

defendant’s conduct that is causing a violation may have ceased

in the past, for § 6972(a)(1)(A) purposes, what is relevant is

that   the     violation    is   continuous        or     ongoing.    That    inquiry

“turns    on   the   wording     of    the   [permit,       standard,     regulation,

condition, requirement, prohibition, or order]” the defendant is

alleged to “be in violation” of.                  S. Rd. Assocs., 216 F.3d at

255.

       In the case at bar, some of the City’s alleged actions

occurred in the past and some are ongoing, but the purported

violations      of   “any   permit,      standard,         regulation,    condition,

requirement, prohibition, or order” promulgated under RCRA are

alleged to be “ongoing.”           (J.A. 32-34.)           The district court will

                                           30
need to consider this distinction in the context of the specific

facts    developed     on   remand    and        the   particular       regulations    at

issue.      Whether     Goldfarb      can    ultimately         prove    his     numerous

allegations       --    including         whether      there     are      any     ongoing

violations -- is premature for resolution at this early stage of

the litigation.        For present purposes, all the Complaint needed

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

that    [the     plaintiff]    has    a     more-than-conceivable           chance     of

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

particularly       through     the    above-cited            paragraphs,        does   so.

Consequently, the district court erred in granting the motion to

dismiss, and we vacate the district court’s judgment as to these

claims and remand for further proceedings consistent with this

opinion.



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

       Relying on substantially the same alleged conduct recounted

above,     the     Complaint       also     alleged       the    City      violated      §

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

substantial      endangerment       present       at   the    Casino     Site    and   the

Waterfront       Parcels”     by   exacerbating         known    contamination         and

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

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

state any plausible factual allegations with respect to disposal

                                            31
of hazardous waste (as opposed to removal of contaminated soil

and    other   remedial      activities)”       and    dismissed      the     subsection

(a)(1)(B) claim under Rule 12(b)(6).                  (J.A. 90.)

       Goldfarb contends this, too, was error, arguing the court

improperly focused exclusively on “disposal of hazardous waste”

when    the    statute       also    permits    claims     based        on    “handling,

storage, . . . or disposal of any solid or hazardous waste.”

Cf. § 6972(a)(1)(B).           Goldfarb points to the paragraphs in the

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

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

statutory definition than the district court recognized, and the

Complaint      adequately     alleges    a     claim    based    just    on       that   one

component      of     the    statute    as     well.       Pointing          to    various

allegations      in    the   Complaint,       Goldfarb    asserts       it    adequately

“alleges how [the City is] handling, storing, disposing, etc.,

the waste . . . by removing leaky drums and underground storage

tanks containing such waste as well as by mixing, moving, etc.

contaminated soil, subsoil, and groundwater.”                      (Opening Br. 45-

46.)     Goldfarb maintains these allegations were sufficient to

survive a motion to dismiss.

       The Complaint had to plausibly allege that the City “has

contributed or . . . is contributing to the past or present

handling, storage, treatment, transportation, or disposal of any

solid    or    hazardous     waste     which    may    present     an    imminent        and

                                          32
substantial       endangerment            to     health       or     the      environment”       to

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

court only addressed two components of this claim: contribution

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

the   Complaint        alleged      activities         that        other     courts     had    held

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

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

district court concluded that the Complaint failed to state a

claim    because       it    did    not       adequately       allege        that     the    City’s

active     conduct      constituted            “disposal      .     .    .    (as     opposed    to

removal of contaminated soil and other remedial activities) at

the Site.”        (J.A. 90.)            We find that, here, the district court

erred.

      As     Goldfarb       points        out,     that       aspect         of   a   subsection

(a)(1)(B) claim can be satisfied by alleging “handling, storage,

treatment, transportation, or disposal,” and the district court

only noted the absence of “disposal.”                          (Emphasis added.)               This

was     error     because,         at     a     minimum,       the       Complaint          alleges

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

“disposal.”        “Handling” is not defined in the relevant statute

or regulations, but its ordinary definition is broad, “[t]he

action or an act of dealing with a . . . thing; treatment;

management[.]”         Oxford English Dictionary.                       “Disposal,” which is

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

                                                 33
deposit, injection, dumping, spilling, leaking, or placing of

any solid waste or hazardous waste into or on any land or water

so that such solid waste or hazardous waste or any constituent

thereof may enter the environment or be emitted into the air or

discharged into any waters, including ground waters.”                        40 C.F.R.

§ 260.10; COMAR 26.13.01.03.

        As discussed in the context of the subsection (a)(1)(A)

claim    against    the    City,     paragraphs       91-93     and    137    of     the

Complaint allege that the City engaged in various activities on

the Casino Site that would involve “handling” or “disposal.”

These activities include allowing leaks, spills, and releases of

hazardous or solid waste to occur on the property; excavating

and mixing contaminated soil and groundwater; “addressing” and

“remov[ing]” contaminated items from the property in a manner

that    “exacerbated      the    known    contamination       at     and   under    the

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

the    soils,   soil   vapors     and/or    groundwater.”          (J.A.     28,   36.)

These paragraphs of the Complaint also identify a specific time

period during which the activities are alleged to have occurred

and some of the chemical substances involved.

        The City appears to assert the misdirected response that

since    its    challenged      conduct    occurred    as     part    of   its     well-

intentioned efforts to remediate contamination, its actions are

immune from liability under § 6972(a)(1)(B).                   Not so.       Hazardous

                                          34
waste can be improperly spread, and contamination exacerbated,

even during remediation efforts.                   A party can violate subsection

(a)(1)(B) regardless of the reasons for the actions it takes.

Of course, whether Goldfarb can ultimately prove the allegations

and prevail on his claim is not a matter upon which we can or do

speculate, as that is a task for the district court in the first

instance.      What        is    relevant     in    reviewing        the   claims   at   the

motion   to   dismiss       juncture      is    that    the     Complaint     sets    forth

conduct that could plausibly, if proven, constitute “handling”

or “disposal.”         As such, the Complaint adequately alleges this

component of a subsection (a)(1)(B) claim.

     The City argues that despite any such error by the district

court,   we        could        nonetheless        affirm      the    district      court’s

dismissal     of    this    claim       based   on     the   Complaint’s      failure    to

adequately allege the other aspects of a § 6972(a)(1)(B) claim.

To be sure, we could affirm on different grounds if supported

fully by the record.               See Brewster of Lynchburg, Inc. v. Dial

Corp.,   33   F.3d     355,       361   n.3     (4th    Cir.    1994).       But    nothing

requires us to do so, and we decline to engage in such lengthy

alternative analyses here.                  See Singleton v. Wulff, 428 U.S.

106, 120 (1976) (“It is the general rule, of course, that a

federal appellate court does not consider an issue not passed

upon below.”).         The district court is in a better position to

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

                                              35
be presented at length rather than being discussed in appellate

briefs centered on the issues the district court did decide.

Because the district court’s analysis was incorrect insofar as

it went, we vacate its judgment granting the motion to dismiss

as to the City.          We remand to the district court for further

proceedings consistent with this opinion.



                    V.   Claim Against Maryland Chemical

      The district court also dismissed the only claim against

Maryland    Chemical      --     brought       under    §    6972(a)(1)(B)         --    for

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

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

hazardous    waste       at    issue,     the     complaint         must     allege      the

defendant        affirmatively         acted     to     create       or      cause       the

contamination      in    order    to    survive    a    motion      to     dismiss.       It

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

of hazardous wastes” did not satisfy this requirement because

those     incidents       could        occur    “without       any        active        human

participation” by Maryland Chemical.                  (J.A. 89.)

      Goldfarb contends that the district court erred because the

Complaint alleges that Maryland Chemical’s past operations on

the Russell Street Properties led to the current contamination

at that site, which is migrating to the Waterfront Parcels and

the     Middle    Branch.         He     posits       that    the     Complaint         thus

                                           36
sufficiently pled Maryland Chemical’s “contribution” so as to

state a claim under § 6972(a)(1)(B).                We agree.

       Although we have not previously opined as to the meaning of

§ 6972(a)(1)(B)’s “contribution” requirement, we are bound to

interpret undefined statutory terms according to their “ordinary

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

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

assumption     that    the     legislative       purpose    is   expressed   by     the

meaning of the words used’” (quoting Richards v. United States,

369 U.S. 1, 9 (1962)).                Consistent with that guidance, other

federal circuit courts have looked to the dictionary definition

of “contribute” to conclude that term for RCRA purposes means

that a defendant must “be actively involved in or have some

degree of control over,” “have a share in any act or effect,” or

“act as a determining factor.”                   Hinds Invs., L.P. v. Angioli,

654    F.3d   846,    850-51       (9th   Cir.   2011);    Sycamore   Indus.   Parks

Assocs. v. Ericsson, Inc., 546 F.3d 847, 854 (7th Cir. 2008);

Cox v. City of Dallas, 256 F.3d 281, 294 (5th Cir. 2001); United

States v. Aceto Agric. Chems. Corp., 872 F.2d 1373, 1384 (8th

Cir.    1989).        We   adopt     this   interpretation,       which    therefore

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

connection       to   --     the     property     in   order     to   be   deemed     a

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

Parks, 546 F.3d at 854.

                                            37
      The     Complaint    adequately         alleges     such      conduct       as   to

Maryland      Chemical.      Paragraphs        49-51     allege      that        Maryland

Chemical engaged in “chemical manufacturing and/or bulk chemical

storage, repackaging and distribution purposes” for over five

decades, and that its “past operations at the Russell Street

Properties      resulted    in     spills      and      releases      of     hazardous

substances and/or hazardous wastes including, but not limited

to”   four    specific    spills   on    portions       of    the   Russell       Street

Properties.      (J.A. 18-19.)          Paragraph 51 alleges the specific

lots on the Russell Street Properties where the spills occurred,

and the types of chemicals involved.              (J.A. 19.)         Paragraph 134,

in turn, alleges that Maryland Chemical’s “past operations”

      contributed    to    the    imminent    and   substantial
      endangerment to human health and the environment which
      is present at the Casino Site and the Waterfront
      Parcels by unlawfully spilling, releasing, and/or
      disposing   of    hazardous   wastes   and/or   hazardous
      substances in the soils and groundwater at the Casino
      Site   (including,   but   not   limited   to  [hazardous
      chemical compounds]) and by failing to address and/or
      remediate the contamination thereafter.

(J.A. 35.)      Accordingly, the district court erred in dismissing

the   claim    against     Maryland     Chemical        for   failure       to    allege

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


      10Since the district court relied, in part, on a case
discussing “disposal” rather than “contribution,” Nurad, Inc. v.
William E. Hooper & Sons Co., 966 F.2d 837 (4th Cir. 1992), we
point out that the terms have different meanings.      Moreover,
once   the   active  component   of   “contribution”  has   been
(Continued)
                                         38
      As the City did with respect to the subsection (a)(1)(B)

claim against     it,    Maryland    Chemical      argues   that    even    if   the

district court erred as to this one aspect of the claim, we

could affirm because the Complaint fails to adequately allege

the remaining elements of a § 6972(a)(1)(B) claim.                    We decline

to engage in that analysis for the same reasons we limited our

review above.     We therefore vacate the district court’s judgment

as   to   Maryland     Chemical   and    remand     this    claim    for   further

proceedings consistent with this opinion.



                                        VI.

      For   the   reasons    stated     above,     we   vacate      the    district

court’s     judgment    dismissing      all   of    Goldfarb’s      RCRA     claims



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


                                        39
against CBAC Gaming, the City, and Maryland Chemical and remand

the case for further proceedings consistent with this opinion.



                                             VACATED AND REMANDED




                               40
