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Center For Community Action & Environmental Justice v. BNSF Railway Co.

United States Court of Appeals, Ninth Circuit

August 20, 2014

CENTER FOR COMMUNITY ACTION AND ENVIRONMENTAL JUSTICE; EAST YARD COMMUNITIES FOR ENVIRONMENTAL JUSTICE; NATURAL RESOURCES DEFENSE COUNCIL, INC., Plaintiffs-Appellants,
v.
BNSF RAILWAY COMPANY; UNION PACIFIC RAILROAD COMPANY, Defendants-Appellees

Argued and Submitted, Pasadena, California: April 8, 2014.

Appeal from the United States District Court for the Central District of California. D.C. No. 2:11-cv-08608-SJO-SS. S. James Otero, District Judge, Presiding.

SUMMARY[**]

Environmental Law

The panel affirmed the district court's dismissal of an action filed by environmental organizations under the citizen-suit provision of the Resource Conservation and Recovery Act, seeking to enjoin the emission from defendants' railyards of particulate matter found in diesel exhaust.

The panel held that defendants' emission of diesel particulate matter did not constitute " disposal" of solid waste within the meaning of RCRA. Accordingly, plaintiffs could not state a plausible claim for relief under 42 U.S.C. § 6972(a)(1)(B).

David Pettit (argued), Melissa Lin Perella, and Morgan Wyenn, Natural Resources Defense Council, Santa Monica, California, for Plaintiffs-Appellants.

Mark B. Helm (argued), Henry Weissmann, and Leo Goldbard, Munger, Tolles & Olson LLP, Los Angeles, California; Patrick J. Cafferty, Jr., Munger Tolles & Olson LLP, San Francisco, California; Kevin M. Fong, Pillsbury Winthrop Shaw Pittman LLP, San Francisco, California; Mark E. Elliott, Michael R. Barr, Margaret Rosegay, and Amy E. Gaylord, Pillsbury Winthrop Shaw Pittman LLP, Los Angeles, California, for Defendants-Appellees.

Before: Ferdinand F. Fernandez, N. Randy Smith, and Mary H. Murguia, Circuit Judges. Opinion by Judge Murguia.

OPINION

Page 1020

MURGUIA, Circuit Judge:

In this case, we must decide whether the citizen-suit provision of the Solid Waste Disposal Act (Resource Conservation and Recovery Act (RCRA)), 42 U.S.C. § § 6901-6992k, may be used to enjoin the emission from Defendants' railyards of particulate matter found in diesel exhaust. RCRA's citizen-suit provision 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." 42 U.S.C. § 6972(a)(1)(B). We conclude that Defendants' emission of diesel particulate matter

Page 1021

does not constitute " disposal" of solid waste within the meaning of RCRA, and that Plaintiffs therefore cannot state a plausible claim for relief under § 6972(a)(1)(B). We therefore affirm the district court's judgment.

I.

Union Pacific Railroad and Burlington Northern Santa Fe Railway Companies (collectively, " Defendants" ) own and operate sixteen railyards in the State of California. On or near those railyards, various locomotive, truck, and other heavy-duty vehicle engines emit tons of diesel particulate matter--small, solid particles found in diesel exhaust--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, including respiratory illnesses and increased risk of heart disease." The Environmental Protection Agency (EPA) has similarly classified diesel exhaust as likely to be carcinogenic to humans.

Plaintiffs are environmental organizations whose members live in the vicinity of Defendants' railyards.[1] They allege, citing CARB studies, that " over 1.8 million Californians are at elevated [cancer] risk because of railyard operations." Plaintiffs further allege that " people living in communities close to the source of [diesel particulate] emissions, such as ports, railyards and intermodal transfer facilities are likely to suffer greater health impacts and these impacts will likely add to an existing health burden." In 2005, according to Plaintiffs, Defendants' railyards collectively emitted over 160 tons of diesel particulate matter into the air.

According to Plaintiffs, Defendants " have allowed and are allowing [diesel particulate matter] to be discharged into the air, from which it falls onto the ground and water nearby, and is re-entrained into the atmosphere." Plaintiffs acknowledge that diesel particulate matter is initially emitted into the air as diesel exhaust, but they contend that the solid particles in the exhaust are " transported by wind and air currents onto the land and water." They allege that the particles are " inhaled by people both directly and after the particles have fallen to the earth and then have been re-entrained into the air by wind, air currents and passing vehicles."

II.

RCRA's citizen-suit provision authorizes private persons to sue " any person . . . who has contributed or who 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." 42 U.S.C. § 6972(a)(1)(B). Invoking that provision, Plaintiffs sued Defendants in the Central District of California, alleging that diesel particulates constitute " solid waste and hazardous waste," the " handling, storage, treatment, transportation, or disposal"

Page 1022

of which Defendants have contributed or are contributing to. In their complaint, Plaintiffs sought injunctive and declaratory relief, asking the district court to declare Defendants' activities in violation of RCRA and order Defendants to take certain control measures to reduce diesel particulate emissions from their railyards.

Defendants moved to dismiss Plaintiffs' complaint, contending that Plaintiffs failed to state a claim under RCRA. Specifically, Defendants asserted that the provision of RCRA regulating air emissions, 42 U.S.C. § 6924(n), applies to air pollutants resulting from the burning of fuel " only when the fuel [itself] consists of or contains 'solid' or 'hazardous' waste, i.e., a discarded material." [2] All other air emissions, according to Defendants, fall within the statutory and regulatory scope of the Clean Air Act, the provisions of which Plaintiffs do not and cannot invoke.[3] Defendants further argued that, even if Congress had intended RCRA to apply in this context, Plaintiffs could not prevail because Defendants did not emit diesel exhaust " into or on any land or water," and therefore were not " disposing" of solid waste within the meaning of RCRA. See 42 U.S.C. ยง 6903(3) (defining " disposal" to mean " the discharge, deposit, injection, dumping, ...


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