Back in October, we reported on a Complaint filed in California, in the case of Center for Community Action & Environmental Justice v. Union Pacific Corporation, No. CV11-8609 (C.D. Cal.) that contended that particulate matter in diesel fuel combustion exhaust is a hazardous waste which is “disposed of” when emitted and therefore is subject to the requirements of Resource Conservation and Recovery Act (RCRA). Creative as it might have been, on a Motion to Dismiss, the Honorable S. James Otero threw out the case without leave to amend.
In its analysis, the Court accepted as true the allegation that the diesel particulate matter (DPM) emitted by the defendants’ trains created an imminent and substantial danger to the health of those living and working near the railyards at issue. However, it did not agree that DPM is a solid or hazardous waste under RCRA.
First, the Court addressed the defendants’ argument that the government regulates diesel emissions under the Clean Air Act (CAA) such that application of RCRA to DPM would create an impermissible conflict between the two statutory schemes. Indeed, as the Court noted, the CAA expressly regulates locomotive emissions, although it exempts certain older engines. The CAA also prohibits federal regulation of most “indirect sources,” facilities which “attract” mobile pollution. Contending that the railyards are “indirect sources,” plaintiffs argued that because the railyards are not subject to the CAA, there is no conflict. But the Court found that the CAA’s exemption was intended to prohibit federal regulation, not to allow such regulation pursuant to a different (in this case, RCRA) federal statute. Thus, the Court held that the case had to be dismissed because the locomotive emissions were regulated by the CAA and, to the extent that the railyard might be considered indirect sources, federal regulation was prohibited – and the Court would not do, indirectly, what the legislature failed to do directly.
Although the Court’s resolution of the conflict issue settled the matter, the Court went on to opine, in dicta, whether DPM constituted a discarded waste subject to RCRA. Here as well the Court found in favor of the defendants, relying on the fact that uncontained gases do not fall within the statutory definition of a “solid waste” and to define particulate contained in gasses as “solids” would “stretch the boundaries of the term to a point where it retains little meaning.” Moreover, such an interpretation would cause all diesel emissions, regardless of the source, to be subject to RCRA, despite the fact that the CAA addresses diesel exhaust directly. As the Court noted, the plaintiffs “presented no authority that would justify such a significant expansion of RCRA to cover an area expressly regulated under the CAA.”
But this isn’t the last we’ll hear of this case. On June 12, 2012, plaintiffs filed an appeal to the Ninth Circuit, so for the time being, this litigation will continue to motor along.