as C8 is currently on Plaintiffs land due to air emissions, such deposits cannot be remediated under RCRA’s ISE provision. Defendant argues, first, that air emissions of C8 do not constitute “solid waste” under RCRA’s definition. The portion of the definition of “solid waste” under RCRA that applies to Defendant’s air emissions of C8 is that it is a “discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial ... operations.” § 6908(27). Defendant argues that since C8 was released into the air via stacks, it is not included in the definition of solid waste because it was an “uncontained” gaseous material, not a “contained” gaseous material as required by RCRA. See United States v. Sims Bros. Const., 277 F.3d 734, 740 (5th Cir.2001) (<HOLDING>). The court in Sims Bros Const., however, dealt
holding that for gaseous material to be solid waste it must be contained holding that a violation of the act founded upon a material omission must be deliberate holding that prejudice cannot merely be alleged it must be affirmatively proved holding that in order for claim to be within scope of coverage of title insurance policy it must be specifically provided for holding that an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved