Ninth Circuit Finds Environmental Organizations Have No Cause Of Action Against Rail yard Owners Under Resource Conservation And Recovery Act

Last week, the Ninth Circuit affirmed a district court’s dismissal of an action filed by environmental organizations under the Resource Conservation and Recovery Act (RCRA) against certain rail yard owners, finding that the plaintiffs failed to state a claim because diesel emissions do not constitute “disposal of solid waste” under the RCRA.  Plaintiffs sued the rail yard owners under the citizen-suit provision of the RCRA, seeking to enjoin them from emitting particulate matter found in diesel exhaust.  The RCRA specifically allows suit by private plaintiffs against the owner or operator of a facility if they have “contributed or . . . [are] contributing to the past or present .  .  . disposal of any solid or hazardous waste.” 42 U.S.C. § 6972(a)(1)(B).

The Ninth Circuit found that the claims failed because emission of particulate matter into the air is not contemplated by the Act.  Reviewing the statutory text, the court noted that the definition of “disposal” in the RCRA does not include the act of “emitting,” which is used in other contexts in the statute.  The court found that Congress’s failure to include emissions when defining disposal must therefore be intentional and, as such, could not be read into the RCRA’s definition of disposal.  Further, the court found that under the RCRA, disposal necessarily required that the solid waste be left first on the land or water.  The plaintiffs had argued that the particulate matter was first emitted into the air and then fell to land or water.  The court found that the plaintiffs’ interpretation would rearrange the statute and its meaning.

In addition, the court’s review of the RCRA and Clean Air Act’s statutory history reinforced its findings.  The court explained that the legislative history showed that the RCRA was intended only to govern land disposal, whereas the Clean Air Act was intended to govern air pollutants.  Further, the court noted that rail yards had specifically been deemed “indirect sources” of air pollution under the Clean Air Act and, as such, were regulated by the states and specifically excluded from regulation under both statutory schemes.