Source: The Recorder
The court of appeals affirmed a district court judgment. The court held that the Resource Conservation and Recovery Act does not authorize a citizen suit to enjoin the emission of air pollutants.
Center for Community Action and Environmental Justice and others filed suit against BSNF Railway Company and Union Pacific Railroad Company, seeking to enjoin the emission of diesel particulate matter from railyards they owned and operated. They relied on the Resource Conservation and Recovery Act (RCRA), codified at 42 U.S.C. §6972(a)(1)(B), which 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 district court granted the railway companies motion to dismiss the complaint with prejudice, finding that the Clean Air Act, and not RCRA, applied to the emissions.
The court of appeals affirmed, holding that RCRA did not apply.
In their complaint, the plaintiffs alleged that the railway companies “disposed” of solid waste—specifically, diesel particulate matter—by allowing the waste to be “transported by wind and air currents onto the land and water near the railyards.” The court noted, however, that RCRA defines disposal, at §6903(3), to mean the “discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters.” Although that definition does not plainly state whether emissions of solid waste into the air fall within its scope, the court found it nonetheless provided sufficient contextual clues to compel the conclusion that they do not.
First, the court noted, RCRA’s 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.
Further, the text of §6903(3) 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.” That placement, in turn, must be such that it permits the solid waste to “enter the environment or be emitted into the air or discharged into any waters, including ground waters.” The court accordingly concluded 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 solid waste at issue here, however, at least as characterized in the complaint, was not first placed “into or on any land or water”; rather, it was first emitted into the air. Only after the waste was emitted into the air did it then travel “onto the land and water.” To adopt the plaintiffs’ interpretation of §6903(3), the court found, would effectively rearrange the wording of the statute—something that it could not do. Reading §6903(3) as Congress drafted it, “disposal” does not extend to emissions of solid waste directly into the air.
That Congress knew how to define “disposal” to include emissions, but nonetheless chose not to, also counseled against reading into the definition of “disposal” conduct that Congress apparently intended to exclude from its reach. Section 6924(n) of RCRA, in contrast, requires the Environmental Protection Agency to promulgate regulations “for the monitoring and control of air emissions,” but does not provide a private right of action. The very existence of that section supported the conclusion that Congress, by not including “emitting” in the actions prohibited under § 6972(a)(1)(B), intended to exclude it.
The statutory and legislative histories of both RCRA and the Clean Air Act supported this conclusion.
The district court did not err in dismissing the plaintiffs’ complaint for failure to state a cause of action under RCRA.