The United States Court of Appeals for the Ninth Circuit on August 20, 2014 determined that emissions of diesel particulate matter from a railyard were not regulated under the Resource Conservation and Recovery Act (RCRA).  In Center for Community Action and Environmental Justice, et al, v. BNSF Railway Co., et al, (Case No. 12-56086), the court held that the railyards’ emissions did not constitute a “disposal” of solid waste under RCRA, and that more broadly, emissions from indirect sources such as railyards “fall entirely out of the ambit of federal regulation.”

Alleging that something was “disposed” of is a jurisdictional prerequisite to a RCRA claim.  Plaintiffs alleged that defendants “disposed” of diesel particulate matter by emitting it into the air, from which it falls onto the ground and water nearby and is re-entrained into the atmosphere.  Plaintiffs further alleged that because RCRA contains a single provision that regulates air emissions (from hazardous waste treatment, storage, and disposal facilities), traditionally the domain of the Clean Air Act (CAA), the two statutes must be “harmonized” to allow citizen-suits that enforce emissions under RCRA.

Defendants moved to dismiss on the grounds that nothing was “disposed” under RCRA and that air emissions were not governed by RCRA.  The district court granted defendants’ motion to dismiss, concluding that the CAA, not RCRA, applies to the emissions from the defendants’ railyards and that any gap that might exist between the two schemes “was created through a series of reasoned and calculated decisions by Congress and the EPA.”

The Ninth Circuit affirmed the lower court’s ruling.  The court rejected plaintiffs’ contention that the railyard emissions constitute “disposal” under RCRA by analyzing the definition of “disposal.”  The court determined that the defendants’ emissions were not “disposal” because the definition of “disposal” does not include the word “emitting.”  Because “emitting” is included in other RCRA definitions, the court found that Congress intended to specifically exclude it in the definition of “disposal.”  The court then analyzed the definition to 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,” and does not extend to direct air emissions, such as those from the railyards.

The court went on to hold that railyards are indirect sources and, as such, emissions from railyards are not subject to federal regulation.  In 1977, Congress amended CAA to include the indirect source review program, which prohibited the federal government from regulating any “indirect source,” or any “facility, building, structure, installation, real property, road, or highway which attracts, or may attract, mobile sources of pollution.”  The indirect source review program permits—but does not require—a state to regulate indirect sources as part of that state’s CAA implementation plan.

Additionally, the court rejected the plaintiffs’ contention that because RCRA contains an air emissions provision, both RCRA and CAA extend to air emissions and that the two statutes should be “harmonized” in a way that “gives effect to both.”  While RCRA includes a provision regulating air emissions from certain facilities (i.e., hazardous waste treatment, storage, and disposal facilities), the court explained that that is the only overlap between RCRA and the CAA. The court held that because the CAA fundamentally addresses air emissions and RCRA fundamentally addresses land disposal, these statutes need not be “harmonized.”  Even if they were “harmonized,” because railyards’ emissions are indirect sources beyond the federal scope of federal regulation under the CAA, they could not be subject to federal enforcement under RCRA.