Friday, August 22, 2014

Ninth Circuit Holds Diesel Exhaust Emissions Are Not “Disposal” Under RCRA

On August 20, the Ninth Circuit (Fernandez, Smith, Murguia) issued a decision in Center for Community Action and Environmental Justice v. BNSF Railway Company, No. 12-56086.  The plaintiffs were environmental organizations whose members live near railyards owned and operated by the defendant railway companies.  Locomotives, trucks, and other heavy-duty vehicles on or near the railyards emitted diesel exhaust containing particulate matter.  The plaintiffs filed a citizen suit under RCRA seeking to enjoin the particulate matter emissions as disposals of a solid or hazardous waste that presented an imminent and substantial endangerment to health or the environment.  The Ninth Circuit held that the defendant’s diesel exhaust emissions do not constitute a “disposal” of solid waste within the meaning of RCRA and on that ground affirmed the district court judgment in favor of the defendants.  The Ninth Circuit reasoned that “disposal” under RCRA does not encompass emissions of solid waste into the air.  The court further reasoned that, although air emissions from railyards and other indirect sources are not regulated by either RCRA or the Clean Air Act, this “regulatory gap” reflects a conscious decision by Congress not to regulate such sources. The court did not reach the issues of whether diesel particulate matter is “solid waste” under RCRA or whether the defendants’ emissions, if covered by RCRA, would “present an imminent and substantial endangerment to health or the environment.”

—Todd Aagaard

http://lawprofessors.typepad.com/environmental_law/2014/08/ninth-circuit-holds-diesel-exhaust-emissions-are-not-disposal-under-rcra.html

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