On October 18, the Natural Resources Defense Council filed a lawsuit in California contending that particulate matter in diesel fuel combustion exhaust is a hazardous waste and therefore subject to the requirements of Resource Conservation and Recovery Act (RCRA).  If the Court agrees, then the world of environmental law and regulation is likely to be turned upside down.

RCRA is a federal law that governs the disposal of waste, and in particular regulates the handling, storage and transportation of hazardous waste from the time it is created to the time it is finally disposed of.  And it allows private parties to sue waste handlers whose actions “may present an imminent and substantial endangerment to health or the environment.” 42 U.S.C. § 6972(a)(1)(B).   To be subject to RCRA as a hazardous waste, the material at issue must first fall within the definition of a “solid waste,” a determination which is neither easy nor intuitive.  However, in the first instance, the EPA has traditionally started with the proposition that the material must be in a solid, semi-solid, liquid, or contained gaseous material. 

 So where does diesel fuel exhaust fall in this equation?  Fuel emissions have historically been regulated at the federal level by the Clean Air Act (CAA) and by state laws governing air pollution, and there are numerous existing laws concerning both stationary emissions sources such as boilers and combustion units and non-stationary emission sources such as cars and trucks.  However, states have limited authority under the CAA to regulate air emissions from non-road engines, such as those found in heavy construction equipment or locomotive engines.  EPA has regulated such engines through tiered emission standards that apply to manufacturers on a model year basis, but some in-use non-road engines may continue to operate without any reduction in emissions.  Against this regulatory backdrop, the plaintiffs in Center for Community Action & Environmental Justice v. Union Pacific Corporation, No. CV11-8609 (C.D. Cal.) assert that both regulatory and voluntary efforts to abate diesel particulate emissions have not been sufficient.  

 In a nutshell, the Natural Resources Defense Council filed a lawsuit against two  railroad companies contending that emissions from diesel engines are subject to RCRA.  The Complaint asserts that diesel particulate matter, which has been identified as a carcinogen, should be considered a “solid” separate and apart from the gaseous matter that it “rides” on such that the deposition of these particles constitutes the disposal of hazardous waste in a manner that causes an imminent and substantial endangerment to human health or the environment.  Plaintiffs assert that diesel particulate matter includes many hazardous substances (including arsenic, cadmium, nickel, manganese and mercury) that can result in serious adverse health affects in exposed persons.  Because diesel particulate matter is especially a concern in environmental justice areas, this is a perfect example of environmental groups getting creative on ways to force the reduction of these emissions.

 If the case gets beyond the Motion to Dismiss stage, we may expect to see similar cases filed in other jurisdictions against owners and operators of heavy duty diesel  equipment which emit significant amounts of diesel particulate matter And if a decision in this case compels the EPA to regulate these emissions under RCRA, compliance would be very costly for the affected industries.     

 This case is an interesting one on many levels, so we’ll be following it closely.

(Thanks go to my partner, Carol McCabe, for providing helpful edits on the existing regulatory scheme for non-road engines.) 

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