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

ELR Citation: 44 ELR 20191
Nos. No. 12-56086, (9th Cir., 08/20/2014)

The Ninth Circuit upheld the dismissal of environmental groups' RCRA citizen suit against a railroad company seeking to enjoin the emission of particulate matter found in diesel exhaust from the company's railyards. 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.” The railyard's emission of diesel particulate matter, however, does not constitute the “disposal” of solid waste within the meaning of RCRA. Under RCRA §1004(3), “disposal” includes only conduct that results in the placement of solid waste “into or on any land or water.” As such, a “disposal” occurs only where the solid waste is first placed “into or on any land or water” and is thereafter “emitted into the air.” The solid waste at issue here, however, is not first placed “into or on any land or water”; rather, it is first emitted into the air. Because “disposal” does not extend to emissions of solid waste directly into the air, the groups failed state a plausible claim for relief.