November 19, 2014 Articles

Rail-Yard Emissions Held Outside the Scope of Federal Regulation

The Ninth Circuit determined that emissions of diesel particulate matter from a rail yard could not be enjoined under the RCRA.

By Raghav Murali – November 19, 2014

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.

The plaintiffs initially sued the defendants in the Central District of California, seeking injunctive and declaratory relief, asking the district court to declare the defendants’ activities in violation of the RCRA and order the defendants to take certain control measures to reduce diesel particulate emissions from their rail yards.

The district court granted the defendants’ motion to dismiss. In its order, the court concluded that the CAA, not the RCRA, applies to the emissions from the defendants’ rail yards 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 court of appeals affirmed the lower court’s ruling. The court held that the plain text of the RCRA is clear that the defendants’ emissions do not meet the definition of “disposal” under the RCRA’s citizen-suit provision. Further, it held that emissions from indirect sources such as rail yards are exclusively regulated under the CAA, wherein the U.S. Environmental Protection Agency (EPA) delegates (permissively) its authority to the states. Thus, such emissions are not federally regulated.

The court rejected the plaintiffs’ contention that the rail-yard emissions constitute “disposal” under the RCRA by analyzing the definition of “disposal.” Under the RCRA, “disposal” means

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.

42 U.S.C. § 6903(3).

The court determined that the defendants’ emissions do not constitute “disposal” because the definition of “disposal” does not include the act of “emitting.” Moreover, other RCRA provisions, such as the term “release” in the section governing underground storage tanks, do include “emitting” in definitions, evidencing Congress’s intent to specifically exclude it in the definition for “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.” For this reason, the court held that “disposal” does not extend to emissions of solid waste directly into the air, such as those from the rail yards.

The court went on to hold that railyards are indirect sources, emissions from which are not subject to federal regulation. In 1977, Congress amended the 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. Thus, emissions from rail yards are governed solely by the CAA. However, under its indirect-source review program, the CAA prohibits federal regulation of rail yards, instead deferring entirely to the states.

Additionally, the court rejected the plaintiffs’ contention that because the RCRA contains an air-emissions provision, “emitting” must fall within the statute’s reach and thus form the basis of a citizen suit under the act. The plaintiffs read that section as proof that both the RCRA and the CAA extend to air emissions and that, therefore, the two statutes should be “harmonized” in a way that “gives effect to both.” The court rebuffed this claim because the legislative histories of the two acts reveal that the CAA is fundamentally an air-emissions statute, while the RCRA is fundamentally a land-disposal statute. In 1984, Congress amended the RCRA to include a provision regulating air emissions from certain sources (hazardous-waste treatment, storage, and disposal facilities) because the EPA already had authority to regulate those emissions under the CAA but had been “appallingly slow.” Thus, with the 1984 amendments, Congress created the first (and only) overlap between the RCRA and the CAA: regulation of emissions of hazardous-waste treatment, storage, and disposal facilities. The court determined that because the two acts regulate land and air respectively, they need not be “harmonized.” However, even if the two acts were “harmonized,” because rail yards’ emissions are indirect sources beyond the federal scope of federal regulation under the CAA, they could not be subject to federal enforcement under the RCRA.

Further, the court noted that the air-emissions section of RCRA does not provide a right of action, and the RCRA’s citizen-suit provision does not permit individuals to bring suit to enforce that section. In fact, the court determined that the very existence of the air-emissions section suggests that Congress, by not including “emitting” in the actions prohibited under the citizen-suit provision, intended to exclude it.

In sum, the decision concluded that emissions from indirect sources such as rail yards fall entirely outside the ambit of federal regulation. These emissions are governed exclusively by the CAA, which prohibits federal regulation of them as indirect sources. While the plaintiffs took issue with the regulatory gap that results and asked the court to “harmonize” the two statutory schemes, the court of appeals agreed with the district court that any such gap is the product of a careful and reasoned decision made by Congress that it is not at liberty to disturb.

Keywords: environmental litigation, diesel particulate matter, RCRA, CAA

Raghav Murali is an associate at Schiff Hardin LLP in Chicago, Illinois.

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