Subscribe for updates
Recent Posts
- New Jersey Appellate Division Finds The New Jersey Constitution Does Not Provide A Fundamental Right To “A Stable Environment”
- Wisconsin District Court Allocates CERCLA Liability for Past and Future Response Costs
- Missouri Court Rejects "Bright-Line" Test for Determining Statute of Limitations Under CERCLA Section 107
- Louisiana Trial Court Enjoins EPA From Enforcement of Disparate Impact Regulations Under Title VI
- D.C. Circuit Continues to Afford Deference to Technical Agency Decisions
Topics
- New Jersey Civil Rights Act
- Public Trust Doctrine
- Title VI
- Disparate Impact
- Environmental Justice
- Massachusetts
- Evidence
- Internal Investigation
- Citizens Suit
- Georgia
- Federal Insecticide, Fungicide, and Rodenticide Act
- FIFRA
- Major Questions Doctrine
- Lead Paint
- Greenwashing
- Good Faith Settlement
- Federal Facilities
- Statutory Notice
- Oil Pollution Act
- Federal Jurisdiction
- Owner Liability
- Court of Federal Claims
- Ripeness
- Renewable Fuel Standard
- Fish and Wildlife Service
- Greenhouse Gas
- Refinery
- Alaska
- Florida
- Vapor Intrusion
- Solvents
- National Priorities List
- Price-Anderson Act
- Solid Waste Management Act
- Successor Liability
- Personal Jurisdiction
- Potentially Responsible Parties
- Operator Liability
- Federal Circuit
- Environmental Covenants
- National Contingency Plan
- Divisibility
- Apportionment
- Strict Liability
- Water Pollution Control Act
- Utilities
- Public Utilities Commission
- Historic Resources
- Hydraulic Fracturing
- Water Use
- Ohio
- PFAS
- Alternative Dispute Resolution
- Arbitration
- Climate Change
- Auer Deference
- Commonwealth Court
- Fees
- West Virginia
- Forest Service
- TSCA
- Martime
- Asbestos
- New Mexico
- Utah
- Tribal Lands
- Federal Tort Claims Act
- Gold King Mine
- Delaware Department of Natural Resources and Environmental Control
- Delaware
- FERC
- National Forest Management Act
- Endangered Species Act
- Chevron Deference
- United States Supreme Court
- HSCA
- Alter Ego
- Corporate Veil
- Allocation
- Eleventh Amendment
- Delaware River Basin Commission
- Mining
- Intervention
- New Hampshire
- First Circuit
- PCBs
- Property Damage
- Building Materials
- Groundwater
- Natural Resource Damages
- Innocent Party
- Brownfields
- Brownfield
- Environmental Rights Amendment
- Pipeline Hazardous Materials Safety Administration
- PHMSA
- Effluents
- FOIA
- Sediment Sites
- EHB
- Missouri
- Pipelines
- Texas
- Injunction
- Coal Ash
- Spoliation
- TMDL
- Stormwater
- Safe Drinking Water Act
- Colorado
- Drinking Water
- Michigan
- North Carolina
- Bankruptcy
- Clean Streams Law
- Hearing Board
- Civil Penalties
- Arranger Liability
- Retroactive
- Sovereign Immunity
- Damages
- Stigma
- Property Value
- Tax assessment
- Fair Market Value
- Storage Tank
- Indemnification
- Energy
- Electric
- Fifth Circuit
- Arizona
- Ninth Circuit
- Attorney-Client
- OPRA
- Iowa
- Fourth Circuit
- Discovery Rule
- Eighth Circuit
- Taxes
- Administrative Appeals
- Preemption
- CAFA
- Inspection
- Residential
- Freshwater Wetlands Protect Act
- New York
- Federal Energy Regulatory Commission
- Natural Gas Act
- Pennsylvania Department of Environmental Protection
- D.C. Circuit
- HAPs
- Hazardous Air Pollutants
- Mercury
- Condemnation
- Takings
- Natural Gas
- Storage
- Fifth Amendment
- Flooding
- Takings Clause
- Spill Act
- Causation
- NEPA
- Interior
- Tenth Circuit
- Mineral Leasing Act
- California
- Act 13
- Zoning
- Duty to Defend
- Insurance Coverage
- Landfill
- Eminent Domain
- Private Right of Action
- Sixth Circuit
- Illinois
- Water
- Citizen Suit
- Diligent Prosecution
- Subject Matter Jurisdiction
- Arkansas
- Pennsylvania
- Press
- Uncategorized
- Maryland
- Eleventh Circuit
- Riverbed
- Equal-Footing Doctrine
- Montana
- Navigability
- Indiana
- Seventh Circuit
- Breach of Contract
- Public Lands
- Bona Fide Prospective Purchaser
- Green House Counsel
- Laches
- Delay Notice
- EPA
- Boiler MACT
- Rulemaking
- CISWI
- Enforcement
- Consent Decree
- Equity
- Contribution
- Declaratory Relief
- Second Circuit
- NPDES
- Procedure
- Standing
- Dimock
- Medical Monitoring
- Legislation
- Case Update
- Certification
- Contamination
- Dukes
- Louisiana
- CLE
- Work Product
- Decisions of Note
- Cases to Watch
- Discovery
- Expert Witness
- Privilege
- Defense Costs
- Insurance
- CERCLA
- Cost Recovery
- Real Estate
- Response Action Contractors
- Consultant Liability
- Negligence
- Remediation
- Army Corps
- Donovan
- Rapanos
- Kentucky
- Nuisance
- Class Actions
- Odors
- Trespass
- Farming
- Hog Barn
- ISRA
- Informal Agency Action
- Administrative Hearing
- New Jersey
- Railroad
- RCRA
- Waste
- Air
- Cancer
- Combustion
- Emissions
- Speaking Engagements
- Federal Procedure
- Removal
- Third Circuit
- Toxic Torts
- Statute of Limitations
- Title V
- Clean Air Act
- Permits
- Cleanup
- Superfund
- Supreme Court
- Camp Lejeune
- Multi-District Litigation
- Statute of Repose
- Tolling
- Deeds
- Administrative Procedures Act
- Marcellus Shale
- Clean Water Act
- Due Process
- Mineral Rights
- Enforcement Action
- Wetlands
- Drilling
- Exploration
- Leases
- Oil and Gas
- Royalties
Blog editor
Blog Contributors
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.