Do Air Emissions Constitute RCRA ‘Solid Waste’ Disposal?

By: Amy Bauer

According to Bloomberg BNA1, a federal court in Ohio ruled March 10 (The Little Hocking Water Assoc., Inc. v. E.I. du Pont Nemours & Co., 2015 BL 64422, S.D. Ohio, No. 09-cv-1081, 3/10/15) that the Resource Conservation and Recovery Act (RCRA) statute is not limited to pollutants placed directly onto land.  Thus, a water utility, Little Hocking Water Associates Inc., (Little Hocking) may proceed with a RCRA lawsuit, which alleges that emissions of hazardous wastes from DuPont’s smokestacks as well as soil and ground water seepage from contaminated soils poses a substantial and imminent risk to the environment under RCRA’s citizen suit provision. The lawsuit developed when Little Hocking alleged that DuPont deposited hazardous solid wastes in the form of perfluorooctanoic acid, known as C8, a Teflon chemical, via air, water, storm water, and soil seepage pathways.

Little Hocking sought injunctive relief under 42 U.S.C. §6972(a)(1)(B), which provides a cause of action for “disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.”  In ruling on cross-motions for summary judgment, the court said Little Hocking presented evidence that DuPont released C8 into the air from the smokestacks of its West Virginia plant, which the judge held could constitute disposal of a solid waste that would subject DuPont to RCRA liability.  The court relied on Citizens Against Pollution v. Ohio Power Co. (S.D. Ohio, No. 04-cv-00371, 2006 BL 6870564, 7/13/06) when it held that DuPont’s aerial emissions of C8 particulate matter “which fell on the ground, remained there, and contaminated groundwater, constitutes disposal of solid waste under RCRA.”

This differed from another recent Ninth Circuit determination in Center for Community Action & Environmental Justice v. BNSF Railway Co., as described in Harvard Law Review on February 10, 2015 (128 Harv. L. Rev. 1272), by finding that emission of air pollutants, specifically diesel particulate matter, from rail yards is not “disposal” of solid waste under RCRA.  In this case, the court read RCRA’s citizen-suit provision to require an allegation based on a cognizable legal theory that (1) the defendants contributed to the “disposal” of diesel particulate matter, (2) diesel particulate matter is a “solid waste,” and (3) diesel particulate matter presents an “imminent and substantial” danger to health or the environment.  Ultimately, the court held that the plaintiffs’ allegation could not satisfy the first point, meaning disposal only occurs when waste is first placed into or on any land or water and is thereafter emitted into the air, which was not the case for the diesel particulate matter emissions in Center for Community Action & Environmental Justice v. BNSF Railway Co.

It should be noted that in The Little Hocking Water Assoc., Inc. v. E.I. du Pont Nemours & Co., the court also held that the seepage of contaminants from non-point sources might also constitute the disposal of solid waste.  The fact that DuPont had a Clean Water Act permit to discharge wastewater at designated “point sources” along the river did not compel the conclusion that all discharges from the plant’s grounds were covered by the RCRA exclusion.  The details of the decisions in both cases are more involved, but it is worth pointing out the significance of decision that air emissions and non-point sources could constitute “disposal” of a “solid waste” and possibly subject a company to RCRA liability.  In summary, do air emissions constitute RCRA “solid waste” disposal?  It depends.

Is your company challenged with potential claims under RCRA?  EHS Support and our partners can help clarify RCRA’s definitions and regulations to help protect your company from violations or assist during lawsuits. Contact us to learn more ways we can support your company.


1 Content provided by Steven M. Sellers in an article “RCRA ‘Solid Waste’ Includes Contaminants Deposited by Air, Water, and Soil Seepage” on March 12, 2015, for Bloomberg BNA Environmental Report™

Amy. Bauer has 15 years of experience conducting and managing environmental site assessments, regulatory compliance audits, environmental investigations, and regulatory compliance support….
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