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Court Finds:  Emission of Diesel Particulate Matter By Railroads Does Not Constitute “Disposal” of Solid Waste Under the RCRA

The United States Court of Appeals for the Ninth Circuit unanimously upheld the United States District Court for the Central District of California’s ruling and rejected an attempt by several environmental groups to use the “citizen suit” provision under the Solid Waste Disposal Act (Resource Conservation and Recovery Act (RCRA)) to enjoin emissions from locomotive engines. In the opinion, Center for Community Action, et al, v. BNSF Railway, et al. (Case No. 12-56086), the court held that the emission of diesel particulate matter does not constitute “disposal” of solid waste under the RCRA, and accordingly, the “plaintiffs could not state a plausible claim for relief.”

RCRA’s citizen suit provision permits “any person” to sue the owner or operator of a solid waste treatment, storage, or disposal facility if the owner or operator “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 substantial endangerment to health or the environment.”  The plaintiffs in the case, a coalition of environmental groups, argued that the railroads “dispose” of solid waste – specifically diesel particulate matter – by allowing the diesel particulate matter to be “transported by wind and air currents onto the land and water near the railyards.”

The court held that the plaintiffs failed to establish that the railroads dispose of solid or hazardous waste as that term is defined under RCRA. “Although that definition does not plainly state whether emissions of solid waste into the air fall within its scope, it does provide sufficient contextual clues” for the court to conclude that the emissions do not constitute “disposal” under RCRA. The court found that the definition of “disposal” does not include the act of “emitting.”  Rather, “disposal” includes only the acts of discharging, depositing, injecting, dumping, spilling, leaking, and placing. The court found that because “emitting” is not included in the disposal action list, the court is permitted “to assume, at least preliminarily, that ‘emitting’ solid waste into the air does not constitute ‘disposal’ under RCRA.”

The court further found that the wording of RCRA is narrowly tailored and “disposal” includes only conduct that results in the “placement” of solid waste “into or on any land or water.” The court held, “[w]e therefore conclude that ‘disposal’ occurs where the solid waste is first placed ‘into or on any land or water’ and is thereafter emitted into the air.”  Because diesel particulate matter from locomotives is not first placed “into or on any land or water” – it is first emitted into the air – the court held that adopting the plaintiffs’ interpretation of “disposal” under the RCRA “would effectively be to rearrange the wording of the statute — something that we, as a court, cannot do.” Thus, the court found that “emitting diesel particulate matter into the air does not constitute ‘disposal’ as that term is defined under RCRA.”

To read the full opinion by the United States Court of Appeals for the Ninth Circuit, click here.