In a sweeping decision, the U.S. Court of Appeals for the Ninth Circuit on August 20, 2014, determined that emissions of diesel particulate matter from a rail yard could not be enjoined under the Resource Conservation and Recovery Act (RCRA). Specifically, in Center for Community Action and Environmental Justice v. BNSF Railway Co. (No. 12-56086), the court held that such emissions did not constitute a “disposal” of solid waste under the RCRA’s citizen-enforcement provision. More broadly, the court held that emissions from indirect sources such as rail yards “fall entirely out of the ambit of federal regulation.”
At issue in this case was whether the citizen-suit provision of the RCRA may be used to enjoin the emissions from the defendants’ rail yards of particulate matter found in diesel exhaust. The 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.”
The plaintiffs alleged that the 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. The plaintiffs further alleged that because the 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 the RCRA.