In 1976, Congress passed the Resource Conservation and Recovery Act1 (RCRA), in part to permit private citizens to sue the owners or operators of solid waste treatment, storage, or disposal facilities whose solid or hazardous waste disposal “present[s] an imminent and substantial endangerment to health or the environment.”2 This statute serves as a complement to laws focused on specific environmental media, such as the Clean Air Act3 (CAA) and the Clean Water Act,4 and was intended to ensure a more holistic scheme of federal environmental regulation.5 Recently, in Center for Community Action & Environmental Justice v. BNSF Railway Co.,6 the Ninth Circuit held that the emission of diesel particulate matter7 (DPM) from a rail yard does not qualify as “disposal” of solid waste within the meaning of RCRA.8 The Ninth Circuit’s decision barring the citizen suit in this case may be supported by the court’s inquiry into the nature of rail yard emissions. However, the court’s interpretation of “disposal,” if read narrowly, may exclude activities that should be included. Accordingly, future courts should conduct case-by-case analyses into the nature of a waste’s contribution to contamination of nearby land or water.
The defendants, Burlington Northern Santa Fe Railway Companies (BNSF) and Union Pacific Railroad, operate sixteen rail yards in California.9 Numerous trains and heavy-duty vehicles emit tons of DPM into the air surrounding these yards.10 The plaintiffs, environmental groups whose members live near the rail yards,11 claimed that their members suffer severe health impacts, including increased risk of cancer, from this DPM emission.12 On February 1, 2012, the plaintiffs filed their first amended complaint in the U.S. District Court for the Central District of California, claiming that the operators of the defendant rail yards “have contributed to and are contributing to the . . . disposal of solid or hazardous waste that may present an imminent and substantial endangerment to health or to the environment,” in violation of RCRA.13 The statute defines “disposal” as “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 [it] may enter the environment or be emitted into the air or discharged into any waters.”14 The defendants moved to dismiss the complaint, arguing that the plaintiffs failed to state a claim because, first, airborne emissions are regulated by the CAA, not RCRA, and second, the defendants did not dispose of solid waste under RCRA because DPM was not released “into or on any land or water.”15
The district court granted the defendants’ motion to dismiss.16 Because the plaintiffs sufficiently pleaded that DPM emission from the rail yards creates an imminent and substantial danger to health, the motion turned on the sufficiency of the allegations that the defendants were disposing of solid or hazardous waste.17 The district court evaluated the defendants’ two proposed grounds for dismissal, finding each independently meritorious.18 First, the court agreed with the defendants that the CAA foreclosed federal regulation — including through RCRA citizen suits — of DPM emissions from “indirect source[s],”19 defined as “facilit[ies]” such as rail yards that “attract, or may attract, mobile sources of pollution.”20 Second, the court found that the plaintiffs’ characterization of DPM as “solid waste”21 did not comport with the statute22 and would lead to the negative result of applying RCRA to all diesel exhaust–emitting vehicles — which the CAA already expressly regulates.23
The Ninth Circuit affirmed.24 Writing for the panel, Judge Murguia25 held that the plaintiffs failed to state a claim because DPM emissions from rail yards do not qualify as “dispos[al]” of solid or hazardous waste.26 Reviewing the motion to dismiss de novo, the court read RCRA’s citizen-suit provision to require an allegation based on a cognizable legal theory that (1) the defendants contributed to the “disposal” of DPM, (2) DPM is a “solid waste,” and (3) DPM presents an “imminent and substantial” danger to health or the environment.27 The court held that the plaintiffs’ allegation could not satisfy the first prong.28
First, the court found that RCRA’s text and structure excluded vehicle emissions from the statutory definition of “disposal.” Though RCRA defines “disposal” to include “discharging, depositing, injecting, dumping, spilling, leaking, and placing,” no reference is made to “emitting.”29 The statute also limits “disposal” to conduct that causes the placement of solid waste “into or on any land or water” so that the waste “may enter the environment or be emitted into the air.”30 The court took this to mean that disposal only occurs when “waste is first placed ‘into or on any land or water’ and is thereafter ‘emitted into the air.’”31 Because DPM emission enters the air before touching the ground or water, it is not a “disposal” within the meaning of RCRA.32
Second, the court looked to the legislative histories of both the CAA and RCRA, finding that they resolved any textual ambiguity with respect to the definition of “disposal.”33 Specifically, the court found that RCRA was crafted to solve the problem of “land disposal” and that the CAA was meant to govern air emissions.34 Congress overhauled the CAA in 1977 to require an EPA study on emissions from trains and to establish the “indirect source review program,” reserving regulation of indirect sources, like rail yards,35 to the states.36 The CAA’s 1990 amendment restricted regulation of emissions from new locomotives to the EPA, preempting any state regulation of the same.37 Because the court understood the CAA’s exclusion of indirect sources from federal regulation and trains from state regulation as deliberate moves by Congress, it held that RCRA should not be read to apply to either.38 Therefore, the court found the plaintiffs to be without statutory authority to bring a citizen suit seeking to enjoin rail yard DPM emissions.
The Ninth Circuit’s holding that the emission of DPM from rail yards is not a “disposal” of solid waste in violation of RCRA may be adequately supported by the court’s inquiry into the legislative context of rail yard emissions. However, the court’s restriction of “disposal” to require discharge initially to land or water without first traveling through the air,39 if applied strictly, may exempt from citizen suits some disposals of solid substances through the air in gaseous or semiliquid form even though they contribute to hazardous waste contamination of land or water. Nevertheless, it remains unclear how strictly this order-of-disposal rule will apply to borderline RCRA cases going forward40: cases dealing with disposal that looks more like an emission of particulate matter (PM) than a dump or leak.41 Future courts should avoid the negative consequences of the BNSF Railway Co. court’s bright-line order-of-disposal rule by relying on an individualized inquiry into the nature of each alleged disposal.
PM is a mixture of solid and liquid substances42 that poses significant danger to human health43 and that, despite being released into the air, also contaminates land and water.44 Though also regulated under the CAA,45 PM is distinct from other types of air pollution. PM is already in solid or liquid form at the time of discharge, as opposed to EPA-regulated gases that may become solid after reacting in the atmosphere46 and others that never become solid.47 While PM is distinct from other solid substances due to its small size and wide dispersal into the air, it is also distinguishable from truly gaseous emissions by its makeup.48 And more germane to the Ninth Circuit’s BNSF Railway Co. decision, DPM’s structural similarity to mists, vapors, and emissions, when coupled with the order-of-disposal rule, may lead to the unnecessary disqualification from RCRA citizen suits of some borderline “aerosolized waste” releases.
In formulating its order-of-disposal rule, the Ninth Circuit was unable to explain how a facility’s discharge of aerosolized wastes in the form of “mist” could still qualify as disposal. In United States v. Power Engineering Co.,49 the Tenth Circuit held that the release by air scrubbers of “a mist” containing hazardous particulate matter50 qualified as RCRA disposal.51 This mist contaminated the ground and water nearby but, by definition, first traveled through the air as small particles indistinguishable from PM.52 The Ninth Circuit in BNSF Railway Co. recognized that aerosolized waste does not lose its character as solid, but the court distinguished Power Engineering Co., claiming that the mist in that case was disposed of “onto the soil” and not “through the air.”53 The time spent in the air between the mist’s discharge from the scrubbers and when it “settles onto the Facility soil,”54 however, seems incompatible with the Ninth Circuit’s order-of-disposal rule despite the court’s reticence to disagree with the misting case.
The order-of-disposal rule also may jeopardize citizen suits brought in response to the discharge of hydrocarbon vapors from storage tanks and pipes. An underground storage tank (UST) system includes a combination of tanks and pipes (the volume of which “is 10 percent or more” below ground) that contain petroleum or other substances.55 Such tanks and pipes are regulated by RCRA56 and can leak both liquid gasoline and hazardous vapors contained therein.57 Because up to ninety percent of a UST may be above ground, the EPA’s regulation of USTs (in the “Solid Wastes” subchapter of the CFR) anticipates both “subsurface” and “[a]boveground release” of solid waste,58 including in the form of vapor.59 Included in a list of “solid wastes” under RCRA is “[p]etroleum-contaminated media and debris,”60 which can be caused by vapor.61 And the EPA’s reference to the “leak,” rather than “emission,” of hydrocarbon vapors62 brings the release of such vapors within RCRA’s definition of “disposal.”63 The Ninth Circuit’s order-of-disposal rule, however, would preclude RCRA citizen suits for release of hazardous vapors above ground, even though these discharges may later mix with subsurface release to contaminate land or water.
A rule that conclusively precludes aerosolized mists and hydrocarbon vapors from citizen suits under RCRA would constitute a harmful removal of an important method of enforcement of environmental standards. While federal and state regulations already purport to govern solid and hazardous waste facilities and USTs under RCRA, “Congress intended citizen suits to supplement government action, to make up the balance of necessary enforcement . . . when under-funded or over-worked agencies [cannot] ensure that all laws are complied with.”64 Citizen enforcement against improper disposals is “more necessary than ever” as government enforcement is “increasingly less reliable.”65 The harm of categorically disqualifying some methods of land pollution from citizen suit under RCRA, then, is a dearth of enforcement of that statute and resultant unpunished pollution violations.66 Thus, disqualification of a method of pollution from RCRA’s definition of disposal should only occur after an individualized inquiry into how the nature of the pollution relates to RCRA as a whole.
Rather than strictly follow the order-of-disposal rule, future courts should recognize that the Ninth Circuit implicitly performed a case-specific analysis into the nature of the pollution and should follow suit.67 BNSF Railway Co. relied in great depth on the statutory history of the CAA and RCRA to determine whether rail yard emissions are covered by RCRA.68 The court also might have distinguished DPM’s tendency to travel great distances on wind currents69 from that of denser aerosolized waste to contaminate land or water closer to its source.70 The court was correct to implicitly recognize limitations on its order-of-disposal theory, but was imprecise about how to draw the line between, for example, Power Engineering Co. and the instant case.71 Future courts should rely on case-by-case analyses of potential disposals to avoid the negative consequences of an inflexible rule.
Strict application of an order-of-disposal rule would add an unnecessary restriction on some citizen suits against solid waste discharge in the Ninth Circuit. This result would cut against RCRA’s purpose to serve as a remedial statute,72 acting as a “supplement to media-based laws.”73 Though rail yard emissions may not qualify as disposal due to the nature of their emission sites and fallout area, courts should conduct case-by-case analyses to determine if solid waste is disposed, and initial release into the air should not disqualify all such disposals.