REVISED OCTOBER 5, 2007

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-30570

CONSOLIDATED COMPANIES INC

Plaintiff-Appellee

v.

UNION PACIFIC RAILROAD CO, Individually & in its Capacity as

Successor in Interest, aka Southern Pacific Transportation Co

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Louisiana

Before HIGGINBOTHAM, GARZA, and BENAVIDES, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

In this case we granted an interlocutory appeal by Union Pacific Railroad

Co. (“UnionPacific”) under 28 U.S.C. § 1292(b)to determine whether the district

court erred in defining the term “facility” for purposes of the claims brought by

Consolidated Companies, Inc. (“Conco”) under the Resource Conservation

Recovery Act “RCRA”, 42 U.S.C. §§ 6901, et seq., and the Louisiana

Environmental Quality Act (“LEQA”), Louisiana Revised Statutes 30:2001, et

seq. Finding no error in the district court’s ruling, we affirm.

United States Court of Appeals

Fifth Circuit

F I L E D

August 28, 2007

Charles R. Fulbruge III

Clerk
No. 06-30570

1 These additional contiguous tracts are identified as: (1) the Georgia Pacific parcel located at 814

Southwest Evangeline Thruway; (2) the PMT parcel located at 810 Southwest Evangeline Thruway; and (3)

the P.J.A. Properties, Inc. site at 600-602 Southwest Evangeline Thruway. The Georgia-Pacific parcel was

purchased by Georgia-Pacific Corporation from Southern Pacific in 1966. The PMT parcel is still owned by

Union Pacific.

2

I

Conco owns a parcel of property located on the southeast Evangeline

Thruway in Lafayette, Louisiana ("Conco tract"). Conco purchased the Conco

tract in 1964 from the predecessor in interest of Union Pacific, the Southern

Pacific Company ("Southern Pacific"). Prior to that time, the Conco tract, along

with several other contiguous parcels of property, composed Southern Pacific's

railroad yard (“former railroad site”).1 Railroad activities were conducted on this

site for approximately thirty years, ceasing in the mid-1960s. Union Pacific later

merged with Southern Pacific and, for purposes of this case, assumed the

obligations and liabilities, if any, of Southern Pacific. 

Conco operates a food warehouse and distribution facility on the Conco

tract. In 1996, Conco discovered contamination, including fuel oil, on the Conco

tract, which it alleges is the result of the prior railroad operations. Conco

brought suit against Union Pacific, pleading causes of action under the RCRA,

the LEQA, and various tort-based theories. Conco sought monetary damages

and injunctive relief directing Union Pacific to clean up contamination on the

entire former railroad site. Initially, the allegations in Conco’s complaint only

related to the Conco tract. However, Conco was later permitted to amend its

complaint to include allegations and requests for relief addressing the entire

site. 

Upon agreement of the parties, the district court held a bench trial under

Federal Rule of Civil Procedure 42(b) on the limited issue of whether the

contiguous parcels of property that make up the former railroad site can

constitute a single "facility" for purposes of Conco's claims under the RCRA and
No. 06-30570

2 The district court’s factual findings are not at issue in this interlocutory appeal, in

which we review only the district court’s purely legal rulings. See Kinney v. Weaver, 367 F.3d

337, 347 n.9 (5th Cir. 2004) (citing Johnson v. Jones, 515 U.S. 304, 313-17, 115 S. Ct. 2151,

132 L. Ed. 2d 238 (1995)). 

3

the LEQA. For purposes of this limited trial, Union Pacific stipulated that

contamination from pre-1964 railyard operations is present on the Conco tract

and that Conco can bring suit under the RCRA and the LEQA with respect to

that tract. However, Union Pacific argued that: (1) Conco did not have standing

to include in its suitthe other contiguous tracts that compose the former railroad

site and are not owned by Conco; and (2) under the RCRA and the LEQA, a

"facility" cannot be composed of the entire former railroad site but instead must

be limited to the Conco tract. 

In its interlocutory judgment filed after the conclusion of the bench trial,

the district court made several findings of fact, including: (1) that the former

Southern Pacific railroad site included a 35,000 gallon and a 30,000 gallon above

ground fuel oil tank and that oil, fuel, and dynamite were stored throughout the

site; (2) that numerous pipelines, wells and drains traversed the site during its

active use as a railyard; (3) that a 1996 preliminary subsurface investigation on

the Conco tract in the area of the 35,000 gallon fuel oil tank revealed fuel oil

contamination in the subsurface soil and the groundwater, which is undoubtedly

linked to the operations ofthe railroad yard; (4) that other contamination related

to or arising out of the railroad operations, including contaminants, pollutants,

hazardous wastes and/or hazardous substances as defined by law, has been

discovered throughout the former railroad site at various times by various

consultants; and (5) as early as 1990 or 1991, Union Pacific was aware of the

presence of hazardous wastes and/or hazardous substances at, on, or under the

former site and in the groundwater at various parcels.2 Further, the district

court held that: (1) Conco has constitutional standing to bring its claims under

both the RCRA and the LEQA; and (2) the entire former Southern Pacific
No. 06-30570

4

railroad site can constitute a single “facility” for purposes of Conco’s RCRA and

LEQA claims. Union Pacific filed a Petition to Appeal the interlocutory order

under 28 U.S.C. § 1292(b), which was granted by this Court. 

On appeal, Union Pacific renews its arguments that: (1) Conco does not

have standing to bring its claims under the RCRA and the LEQA because it has

not demonstrated an “injury in fact” sufficient to meet the requirements of

Article III, § 2 of the United States Constitution; and (2) that the district court

erred in holding that the entire former railroad site can constitute a single

“facility” for purposes of Conco’s RCRA and LEQA claims. 

II

Union Pacific first argues that Conco does not have standing to bring its

claims under the RCRA and the LEQA because it has not demonstrated an

“injury in fact” sufficient to meet the requirements of Article III, § 2 of the

United States Constitution. As Union Pacific correctly notes, the citizen suit

provisions of the RCRA and the LEQA do not, in and of themselves, satisfy the

case-in-controversy requirement of Article III, § 2. Lujan v. Defenders of

Wildlife, 504 U.S. 555, 571-72 (1992). In order to demonstrate standing, a

plaintiff must show: (1) that it has suffered an “injury in fact” that is (2) fairly

traceable to the challenged action ofthe defendant and (3)the likelihood thatthe

injury can be redressed by a favorable decision. Friends of the Earth, Inc. v.

Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180-81 (2000) (citing

Lujan, 504 U.S. at 560-61). An “injury in fact” must be both concrete and

particularized and must be either actual or imminent. Friends of the Earth, 528

U.S. at 180-81. 

We find that Conco has demonstrated an “injury in fact” sufficient for

purposes of constitutional standing. Conco has produced evidence that

contaminants are present in the soil throughout the entire former railroad site,

including the Conco tract. Union Pacific has conceded that these contaminants
No. 06-30570

3 Data that would allow definitive determination as to whether the contaminants have

polluted or will soon pollute the water supply is not available. However, expert testimony,

5

are present due to the former railroad activities conducted by its predecessor-ininterest, Southern Pacific. Further, based on the presence of these

contaminants, Conco is currently under Louisiana Department of Environmental

Quality (“LDEQ”) orders to monitor the area bordering the Georgia Pacific tract.

Conco has already incurred and continues to incur costs for its performance of

these required monitoring efforts. Recovery of these costs is one of Conco’s

objects in its suit against Union Pacific. These injuries are clearly actual,

concrete, and particularized. Id. 

Union Pacific argues that Conco’s injuries only give it standing to bring

suit based on the parcel of the former railroad site that Conco owns. However,

Union Pacific has not provided any compelling legal basis for so limiting Conco’s

standing. Conco’s injuries, as reflected in the district court’s factual findings,

arose out of the railroad activities that were conducted throughout the entire

former railroad site. Further, Conco has introduced evidence demonstrating

that the contaminants on the non-Conco tracts may pose further threatened

harm to Conco. An expert witness testified that the contaminants on the nonConco tracts may have already migrated to the Conco tract or may so migrate

in the future. The Supreme Court has consistently held that threatened harm

can constitute an injury in fact. See Lujan, 504 U.S. at 571-72. 

Additionally, Conco has submitted evidence showing that the City of

Lafayette’s water supply, the Chicot aquifer, lies beneath the land surface at

issue. An expert witness testified that the toxic contaminants located

throughout the former railroad site may have migrated into the water supply.

Conco’s employees, like the citizens of Lafayette generally, drink the water

supplied by this aquifer and, therefore, have been or will be injured by any

pollution ofthe aquifer.3 Given this evidence, we hold that Conco’s injuries, both
No. 06-30570

credited by the district court, established that Union Pacific has neither fully complied with

LDEQ testing efforts on the property it still owns nor permitted Conco to conduct testing

beyond the Conco tract. 

6

actual and threatened, are sufficiently related to the former railroad site so as

to give Conco standing to bring claims implicating the site in its entirety. See

id. at 560-61. 

III

Union Pacific also argues that the district court erred in holding that the

entire former railroad site can comprise a single “facility”for purposes of Conco’s

claims under the RCRA. Union Pacific contends that only the Conco tract can

legally be considered as a “facility” under the RCRA. Conco brings suit under

§ 6972(a)(1)(B), commonly referred to as the citizens suit provision of RCRA,

which provides that“any person may commence a civil action on his own behalf,”

thereby empowering a plaintiff to act, in effect, as a private attorney general on

behalf of citizens. See Prisco v. A & D Carting Corp., 168 F.3d 593 (2d. Cir.

1999). In order to prevail under this section, a plaintiff must establish the

following elements:

1. The defendant is a person, including, but not limited to, one who

was or is a generator 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. The defendant has contributed to, or is contributing to, the

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

hazardous waste; and

3. The solid or hazardous waste may present an imminent and

substantial endangerment to human health or the environment.

42 U.S.C. § 6972(a)(1)(B) (emphasis added). Although the term “facility” is

employed throughout the RCRA, it is not specifically defined in § 6909, the act’s

definition section. However, “facility” is defined in § 6991b(h)(6)(D), a section of

the RCRA that addresses claims relating to underground storage tanks. This

section reads:
No. 06-30570

7

“For purposes of this paragraph, the term “facility” means, with

respect to any owner or operator, all underground storage tanks

used for the storage of petroleum which are owned or operated by

such owner or operator and located on a single parcel of property (or

on any contiguous or adjacent property).”

42 U.S.C. § 6991b(h)(6)(D) (emphasis added). 

“Facility,” then, is defined in the RCRA in a manner that is inclusive of

contiguous or adjacent tracts of property. It is a well accepted 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, 116 S. Ct. 647, 133 L. Ed.2d 611 (1996); see also Cox v. City of Dallas, 256

F.3d 281, 293 n.22 (5th Cir. 2001). The definition of “facility” in § 6991b(h)(6)(D)

is particularly instructive of how the term should be interpreted in the instant

case because the contexts in which the term is used are quite similar. In

§ 6991b(h)(6)(D), “facility” is defined in relation to property on which

underground storage tanks are present. In the case before us, at issue is the

appropriate boundary of a “facility” with respectto the former railroad site, upon

which above ground storage tanks were located. That the definition of the term

would be consistent between such similar contexts is logically compelling.

“Facility” is also defined in the Comprehensive Environmental Response,

Compensation, and Liability Act (CERCLA), which shares a similar legislative

purpose with the RCRA. The RCRA, in fact, calls upon the Administrator of the

EnvironmentalProtection Agency (EPA)to integrate the provisions ofthe RCRA

with those of CERCLA in a manner consistent with the goals and policies

expressed in each act. See 42 U.S.C. § 6905. In § 9601(9), CERCLA defines

“facility” as “any site or area where a hazardous substance has been deposited,

stored, disposed of, or placed, or otherwise come to be located.” 42 U.S.C.

§ 9601(9). In Tanglewood East Homeowners v. Charles-Thomas, Inc., 849 F.2d

1568, 1572-74 (5th Cir. 1998), we read this definition as leaving “no room for
No. 06-30570

4 Union Pacific attempts to distinguish Tanglewood on the ground that the “facility” at

issue there was a residential subdivision, rather than an industrial facility. However, as

neither the RCRA nor CERCLA distinguish residential from commercial or industrial

“facilities,” this is a difference without legal distinction under the statutes.

8

doubt” that an entire development, rather than the individual parcels of

property owned by the private citizens, constituted a “facility” under CERCLA.

In doing so, we explained that the statutory definitions in “§ 6972 [of the RCRA]

are the same as the definitions in CERCLA.” Id. at 1574. It is the clear

guidance of Tanglewood, then, that we let the inclusive definition of “facility”

found in CERCLA inform our interpretation of the term as it is employed in

§ 6972 of the RCRA.4

The legislative purpose behind the RCRA is also instructive. The RCRA

“‘is a multifaceted approach toward solving the problems associated with the

three-four billion tons of discarded materials generated each year.’” Cox, 256

F.3d at 295 n.24 (quoting 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). Congress expressly intended the RCRA to “close

loopholes in environmental protection.” United States v. Waste Indus., Inc., 734

F.2d 159, 165 (4th Cir. 1984). 

When read in light of its legislative intent, it is clear that the correct

interpretation of the term “facility” in § 6972(a)(1)(B) is one that encompasses

the entire former SouthernPacific railroad site. For the construction of “facility”

advanced by Union Pacific, one that would divide the former railyard into
No. 06-30570

9

several separate facilities along current property lines, would require a plaintiff

to bring numerous suits to effectuate the remediation of one large, discrete

pollution source. Such a result would slow, rather than speed, compliance with

environmental laws, and open, rather than close, a loophole in environmental

protection. It also defies common sense; if a single source of contaminants, like

the former railroad site, is to be adequately cleaned up, it must be done in a

comprehensive fashion. To remove the hazardous elements from only the Conco

tract would still leave thatland vulnerable to the migration ofthe toxic elements

remaining just beyond its property line. Union Pacific’s proffered construction

of“facility”,then, is neither pragmatic nor consistent with Congressional intent.

Union Pacific also contends that the “facility” should be limited to the

Conco tract under the RCRA because Conco does not own the other tracts that

make up the former railroad site. However, nothing in the RCRA prevents a

plaintiff from bringing a suit implicating a facility in which he lacks a complete

or even a partial ownership interest. See § 6972(a)(1)(B). Indeed, we have

allowed such suits under the RCRA. See, e.g., Cox, 256 F.3d at 281 (allowing

RCRA suit by homeowners for cleanup of landfill facility in which plaintiffs had

no ownership interest); Such an approach is simply part-and-parcel with

expansive private attorney general provisions like that included by Congress in

§ 6972(a)(1)(B). Accordingly, we find no reason to limit the definition of “facility”

on this basis. 

For the foregoing reasons, we hold that the district court correctly

determined that under § 6972(a)(1)(B) of the RCRA, the term “facility” can

encompass the entire former railroad site. 

IV
No. 06-30570

10

Union Pacific similarly argues that the district court erred in holding that

the entire former railroad site can compose a “facility”for purposes ofthe LEQA.

Again, Union Pacific contends that under the LEQA, a “facility” must be limited

to the Conco tract. The LEQA’s citizen suits provision provides that “any person

having an interest, which is or may be adversely affected, may commence a civil

action on his own behalf against any person whom he alleges to be in violation

of this Subtitle II [of Title 30] or of the regulations promulgated hereunder.” La.

R.S. 30:2026(A)(1). In its complaint, Conco alleges, in part, that Union Pacific

violated § 2273 because it(1) was an owner and/or operator of“a pollution source

or facility”; and/or (2) “generated a hazardous waste which was eventually

transported, stored, disposed of or discharged at a pollution source or facility”;

and/or (3)“disposed of or discharged a hazardous substance at a pollution source

or facility.” La. R.S. 30:2273. In § 2004(14), the term “facility” is defined, for

purposes of the citizen suits provision, as:

[A] pollution source or any public or private property or facility

where an activity is conducted which is required to be regulated

under this Subtitle and which does or has the potential to do any of

the following:

(a) Emit air contaminants into the atmosphere.

(b) Discharge pollutants into waters of the state.

(c) Use or control radioactive materials and waste.

(d) Transport, process, or dispose of solid wastes.

(e) Generate,transport,treat, store, or dispose of hazardous wastes.

La. R.S. 30:2004(14). In turn, § 2004(13) defines “pollution source” as:

[T]he immediate site or location of a discharge or potential

discharge, including such surrounding property necessary to secure

or quarantine the area from access by the general public.

La. R.S. 30:2004(13) (emphasis added). Conco alleges, and the district court

itself found, that pollutants and hazardous waste are located throughout the

entire former railroad site, clearly qualifying it as a “pollution source” under §

2004(13). Further, the facts found by the district court demonstrate that each
No. 06-30570

5 Union Pacific also contends that Conco cannot bring suit under LEQA § 30:2026

because it does not have an “interest which is or may be adversely affected.” Clearly, the

evidence in the record demonstrates (at a minimum) that Conco’s interest in the Conco tract

and its interest in the safety of its employees’ drinking water may be adversely affected by the

contamination located throughout the former railroad site. Accordingly, Union Pacific’s

argument on this issue fails. 

11

tract composing the former railroad site has the potential to discharge pollutants

into the Chicot aquifer and that both existing conduits and groundwater could

further spread the contaminants beyond the site. These facts qualify the former

site as a “facility” under § 2004(14)(b) and (c). 

Although Union Pacific nevertheless contends that the “facility” must be

limited to the property boundaries of the Conco tract, the language of LEQA

itself clearly suggests otherwise. By its plain terms, § 2004(13) defines “pollution

source” so expansively that the term can encompass not only the entire location

of a discharge of contaminants (such as the former railroad site) but the

surrounding property as well. This statutory language appears to reflect a

legislative choice to prioritize the thorough remediation of environmental

hazards over more narrow observation of property lines. This approach is

employed elsewhere in the LEQA as well. See La. R.S. 30:2204(c) (specifying

that a “hazardous waste site” includes “the entire contaminated area and may

extend beyond a facility’s boundary). In short, nothing in the LEQA suggests

that a “facility” must be limited to the property lines of the Conco tract.

Accordingly, we hold that the district court did not err in determining that the

entire former railroad site can constitute a “facility” for purposes of Conco’s

LEQA claims.5

V

For the foregoing reasons, we AFFIRM.