Land Deposition of Air Pollutants Constitutes Disposal of Hazardous Waste

Disagreeing with a decision by the Ninth Circuit Court of Appeals, the U.S. District Court for the Southern District of Ohio, Judge Algenon Marbley, ruled on March 10 that the deposition on land of perfluorooctanoic acid (C8) on a well field owned by a rural water district constitutes disposal of hazardous waste under the Resource Conservation and Recovery Act (RCRA). Contamination of soil and groundwater from such deposition thus can be addressed in an RCRA citizens suit if shown that it is an imminent and substantial endangerment to human health or the environment.  The Little Hocking Water Association, et al v. DuPont, et al.  The Ninth Circuit last August found that land deposition of diesel particulate matter from locomotives was not disposal of hazardous waste, in Center for Community Action v. BNSF Railway.  Judge Marbley disagreed with that ruling, and found that land deposition that results in soil and groundwater contamination meets the RCRA definition of “disposal”:  “deposit … or placing of any solid … waste into or on any land or water so that such solid waste or hazardous waste … may enter the environment … or discharged into any waters, including groundwaters.”

Expansion of RCRA’s citizen suit provisions to address land deposition of air pollutants could vastly expand the universe of potential RCRA citizen suit claims.  Large numbers of people and landowners can be affected by emission of air pollutants, as compared with limited numbers of landowners that are affected by traditional “disposal” claims.

For more information regarding litigation involving land or water contamination or exposure to hazardous substances, contact Steve O’Day or Andy Thompson.

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