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Cox v. Dallas, Tex., City of

ELR Citation: 31 ELR 20767
Nos. No. 99-11029, 256 F.3d 281/(5th Cir., 08/06/2001) aff'd

The court affirms a district court holding that a city was liable for contributing to illegal dumping at two garbage dumps in violation of the Resource Conservation and Recovery Act (RCRA), and that the director of the state environmental agency could not be held liable for RCRA violations. Residents brought a citizen suit against the city for illegally contributing to open dumping at two sites and against the director for failing to classify the dumps on the U.S. Environmental Protection Agency's (EPA's) Open Dumping Inventory (ODI) in violation of RCRA. The court first holds that the district court did not err in finding that the city could be held liable under RCRA §7002(a)(1)(B) for contributing to dumping at the sites. Even after the city's attorneys learned that a demolition company hired by the city was illegally dumping at one of the sites, the city continued to work with the company. Further, it was not clear error for the district court to infer that the city's waste went to the dump in question. Additionally, because §7002(a)(1)(B) applies to both past and present acts, the city can still be held liable under RCRA for continuing violations even though it stopped using the second site in question as a municipal landfill in 1972 and RCRA was not even enacted until 1976. The court further holds that the district court correctly concluded that the residents did not prove that the director violated RCRA by failing to classify the dumps on EPA's ODI. Contrary to the director's arguments, the residents had standing to bring their suit and were not barred from suing the director by the Eleventh Amendment. The residents failed, however, to prove that the director's actions contravened the statutory provisions and regulations of RCRA. The state's plan, submitted to and approved by EPA, met RCRA requirements to provide for the classification of existing solid waste disposal facilities, the closing or upgrading of all existing dumps, and long-term monitoring and contingency plans.

Counsel for Plaintiffs
Michael M. Daniel
Law Offices of Michael M. Daniel
3301 Elm St., Dallas TX 75226
(214) 939-9230

Counsel for Defendants
Ronald Stutes
Bickerstaff, Heath, Smily, Pollan, Kever & McDaniel
1717 Main St., Dallas TX 75201
(214) 752-8021

King, J. Before Parker and Furgeson,* JJ.

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