Challenge to Railyard Emissions Fails in 9th

     (CN) - More than a hundred tons of annual railyard emissions does not constitute illegal disposal of solid waste, the 9th Circuit ruled Wednesday.
     The decision comes in a complaint that three environmental groups brought against BNSF Railway Co. and Union Pacific Railroad Co., hoping to stop their emission of "particulate matter found in diesel exhaust."
     Citing Environmental Protection Agency findings that diesel exhaust can cause cancer, the Center for Community Action and Environmental Justice, East Yard Communities for Environmental Justice, and the Natural Resources Defense Council claimed that nearly 2 million Californians have a higher risk of cancer because of BNSF and Union Pacific railyard operations.
     The environmental organizations said 16 railyards owned and operated by BNSF and Union Pacific collectively emitted more than 160 tons of diesel particulate matter in one year.
     A federal judge dismissed the action, however, after determining that diesel exhaust is not a solid or hazardous waste under the Resource Conversation and Recovery Act.
     In affirming that finding Wednesday, a three-judge panel with the 9th Circuit agreed that the emission of diesel particulate matter does not constitute solid waste disposal.
     "We conclude that, by emitting diesel particulate matter from their railyards and intermodal facilities, defendants do not 'dispose' of solid waste in violation of the RCRA," Judge Mary Murguia wrote for the court in Pasadena. "That conclusion, in our view, follows relatively clearly from RCRA's text; however, to the extent that its text is ambiguous, RCRA's statutory and legislative histories resolve that ambiguity."
     The RCRA's definition of disposal does not use the word "emitting," only "discharging, depositing, injecting, dumping, spilling, leaking, and placing," according to the ruling.
     "Reading [RCRA] as Congress has drafted it, 'disposal' does not extend to emissions of solid waste directly into the air," Murguia wrote.