In a unanimous decision, the U.S. Court of Appeals for the Ninth Circuit on August 20, 2014, upheld a lower court’s ruling and rejected an attempt by several environmental groups to use the citizen suit provision under the Resource Conservation and Recovery Act (RCRA) to regulate emissions from locomotive engines. In the ruling, 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 RCRA, and accordingly the “plaintiffs could not state a plausible claim for relief” under the RCRA citizen suit provision.

Union Pacific Railroad (UP) and Burlington Northern Santa Fe (BNSF) Railway Companies own and operate sixteen railyards in California. Locomotives at those railyards emit tons of diesel particulate matter into the air. The California Air Resources Board (CARB) has identified diesel particulate matter as a toxic air contaminant with the potential to cause cancer and other adverse health problems. The U.S. Environmental Protection Agency (EPA) has similarly classified diesel exhaust as a likely human carcinogen. The plaintiffs in the case, a coalition of environmental groups, allege that they have members living in proximity to the railyards who are at an elevated risk for cancer due to the diesel particulate matter emissions. The plaintiffs argued that UP and BNSF “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.” They sought to use the RCRA citizen suit provision to compel regulation of the diesel particulate emissions.

The court held that the environmental groups 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. (Emphasis in original.) These “contextual clues” form the basis of the court’s decision in denying the environmental groups’ arguments. The first of these “contextual clues” that the decision cites is that the definition of “disposal” does not include the act of “emitting.” Instead, it includes only the acts of discharging, depositing, injecting, dumping, spilling, leaking, and placing. That “emitting” is not included in that list “permits us to assume, at least preliminarily, that ‘emitting’ solid waste into the air does not constitute ‘disposal’ under RCRA,” the court ruled.

The court went on to state that the text of RCRA is very specific: it limits the definition of “disposal” to particular conduct causing a particular result. By its terms, “disposal” includes only conduct that results in the placement of solid waste “into or on any land or water,” the court ruled. That placement, in turn, must be so that such solid waste may enter the environment or be emitted into the air or discharged into any waters, including ground waters. “We 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,” the court stated. Emphasis in original. Diesel particulate matter from locomotives is not first placed “into or on any land or water”; rather, it is first emitted into the air. Only after the waste is emitted into the air does it then travel “onto the land and water.” The court held that to adopt the environmental groups’ interpretation of the definition of “disposal” under RCRA “would effectively be to rearrange the wording of the statute -- something that we, as a court, cannot do.” The court cited other provisions of RCRA that it claimed further support its conclusion that “emitting diesel particulate matter into the air does not constitute ‘disposal’ as that term is defined under RCRA.”