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Southern California environment news and trends

Diesel soot pollution in railyard air isn't solid waste, says federal court

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26839 full

A federal judge has dismissed efforts by environmental groups to hold rail yard companies responsible for pollution under the law known as the Resource Conservation and Recovery Act. Last year we reported on the filing of this case. 

The Natural Resources Defense Council and others had argued that the hazardous waste from rail yards is in exhaust

Pettit likens diesel particulate pollution to a shotgun blast. "If someone points a shotgun at you and pulls the trigger, what comes out of the barrel is the hot gases and the shotgun pellets, and it's not the gases that kill you, it's the pellets, the particles that kill you, the pellets. And it's the same way with diesel exhaust, you suck those particles into your lungs with arsenic and lead and bad stuff on them, you suck them into your lungs and they don't come out again, and that's what kills you." Petit pauses. "This legal theory, if it works, will be of national significance, and we'll be able to use it all over the country."

Generally, this isn't what the Resource Conservation and Recovery Act is used for. RCRA is for hazardous waste facilities. (And if you're thinking of Superfund, those are generally abandoned or uncontrolled hazardous waste sites, not places where the waste is still coming in and out, and people are admitting it.) Judge James Otero seems to be conveying a lack of interest in interpreting RCRA differently.  

The court seemed to develop a problem over whether air pollution qualifies for regulation under RCRA. The big question was whether "plaintiffs have properly alleged that defendants are contributing to the disposal of a solid or hazardous waste." Since it was a novel question, the judge looked to the statute for defining solid waste. And he decided that solid waste doesn't include "uncontained gases" such as diesel exhaust. 

The district court judge acknowledged the enviro groups' argument that, essentially, "California cannot regulate locomotives, the primary DPM [diesel particulate matter] sources in railyards; the EPA can regulate locomotives, but cannot regulate railyards because they are indirect sources of air pollution."

But Judge Otero pointed out that "every direct source of DPM in Defendants' railyards is regulated by the CAA [Clean Air Act]." He called the NRDC's construction of RCRA "strained." And he equated the plaintiffs' case to a complaint that regulators aren't doing enough to limit air pollution. 

This was a novel question. The NRDC says its talking to its clients about an appeal. At least one legal expert unaffiliated with the case said it wasn't wacky. Back when the suit was filed, I wrote about how cases like this illustrate the fact that we're juggling a lot of values that are changing in size and shape all of the time. But it would seem that, according to at least this one judge, the juggling isn't actually the court's problem. Some things actually have to be done by lawmakers.

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