F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

C E N T E R F O R C O M M

U N I T Y A C T I O N
A N D E N V I R O N M E N T A L J U S T I C E ; E A S T Y A R

D C O M M

U N I T I E S F O R E N V I R O N M E N T A L J U S T I C E ; N A T U R A L R E S O U R C E S D E F E

N S E C O U

N C I L , I N C

. , Plaintiffs-Appellants

,

v

.

B NSF R A I L W

A Y C O M P A

N Y ; U N I O N P A C I F I C R A I L R

O A D C O M P A

N Y , Defendants-Appellees

. N o. 12-56086

D.C. No. 2:11-cv-08608- SJ O-SS

OPI NI ON

A ppeal from the United States District Court for the Central District of California S. J ames Otero, District J udg e, Presiding

Arg ued and Submitted April 8, 2014—Pasadena, California

F iled Aug ust 20, 2014

B e fore: F erdinand F . F ernandez , N. Randy Smith, and Mary H. Murg u ia, Circuit J udg es.

Opinion by

J u dg e Murg uiaC T R

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SUMMARY *

Environm ental Law

The panel affirmed the district court’s d i s missal of an action filed by environmental o r g aniz ations under the citiz ensuit provision of the Resource Conservation and Recovery Act, seeking to enjoin the emission from defendants’ raily ards of particulate matter found in diesel ex haust.

The panel held that defendants’ emission of d iesel particulate matter did not constitute “ disposal” of solid waste within the meaning of RCRA. According ly

, p laintiffs could
not state a plausible c lai m f o r r elief under 42 U .S.C. § 6972(a)(1)(B ).

COUNSEL

David Pettit (arg

u ed), M elissa L in Perella, and Morg an W y e nn, Natural Re s o u rces D efense Council, Santa Monica, California, for Plaintiffs-Appellants.

M a r k B

. Helm (arg

ued), Henry W e issmann, and L e o Goldbar d

, Mung er, Tolles & Olson L L P, L o s Ang eles, California; Patrick J

. Cafferty

, J r

. , Mung er Tolles & Olson L L P, San F rancisco, Calif ornia; Kevin M. F ong , Pillsbury W inthrop Shaw Pittman L L P, San F rancisco, California; Ma rk E. Elliott, Michael R. B a rr, Marg aret Roseg ay , a

nd

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.C T R

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Amy E. Gaylord, Pillsbury W inthrop Shaw Pittman L L P, L os Ang eles, California, for Defendants-Appellees.

OP INION

MURGUI A, Circuit J udg e:

I n this case, we must de c ide whether the c itiz en-suit provision of th e Solid W aste Disposal Act (Resource Conservation and Recov ery Act ( RCRA)), 42 U .S.C. §§ 69 0 1

– 6 9 92k, may be used to enjoin the emission from Defendan t s ’ r aily a

r ds of p articulate matter found in d iesel

ex h aust. RCRA’s citiz en-suit p rovision permits “any person”
to sue the owner or operator of a s olid waste treatment,

s t o rag e, or disposal facility if the owner or operator “ha s

c ontributed or

. . . is contributing to the past o r pre s e n t handling

, storag e, treatment, transportatio n , o r d i s posal of any solid or haz ardous waste w hich may present an imminent a nd substantial endang erment to health or the environment. ” 4 2 U.S.C. § 6 972(a)(1)(B ). W e conclude that Defenda n t s ’ emission of diesel particulate matter does n ot c o n stitute “disposal” o f solid waste within the meaning of RCRA, and that Plaintiffs therefore can n o t state a plausible claim for relief under § 6972(a)(1)(B ). W e therefore affirm the district court’s judg ment.

I.

Union Pacific Railroad and B urling ton Northern Santa F e Railway Companies (collectivel y , “Defendants”) own a nd operate six teen raily ards in the State of Califor n i a

. O n o r

near those raily a

rds, various lo c o m o tive, truck, and other heavy -duty vehicle eng ines emit t ons o f diesel p articulateC T R

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m atter—small, solid particles found in diesel ex haust—int o the air. Th e C a l i fornia Air Resources B oard (CARB ) has identified diesel particulate matter as a tox ic air c ontaminant wi t h t h e potential “to cause cancer and other adverse health problems, including respiratory illnesses and increased risk o f heart d isease.” The Environmental Protection Ag e ncy (EPA) has similarly classified diesel ex hau s t a s likely to be carcinog enic to humans.

Plaintiffs are environmental org aniz ations whose members live in the vicinity of D efendants’ raily ards. 1 They alleg e, citing CARB studies, that “ o v er 1.8 million Californians are at elevated [ cancer] risk because of raily ard operations.” Plaintiffs further alleg e that “ p e o p le living in communities close to the source o f [ diesel particulate] emissions, such as ports, raily ards and intermodal t r ansfer facilities are likely

to suffer g reater health impacts a nd these impacts will likely add to a n ex isting h e a l th burden.” I n 2005, according to Plaintiffs, Defendants’ r aily ards collectively e mitted over 160 tons o f diesel particulate matter into the air.

1 P lain t if f s are th e Cen ter f

o r Co m m u n ity A ctio n an d En v iro n m en t al J u stice (CCA EJ ), East Yard Co m m u n i t ies f o r En v iro n m en tal J u stice (EYCEJ ), an d N a t u r a l Reso u rces Def en se Co u n cil (NRDC). CCA EJ
p ro claim s itself to b e “ o n e o f th e o l d est an d m o st acco m p lish ed

en v iro n m en ta l h e a lth an d j u stice o rg an izatio n s in th e n atio n ”; its w ork f o cu ses o n ach iev in g en v iro n m e n t a l h ealth an d j u stice in Riv ersid e an d San B ern ard in o Co u

n ties, Calif

o rn ia. Each o f th o se co u n ties is h o m e to

o n e raily ard or i n t erm o d al f acility o w

n ed b y Def

en d an ts. EYCEJ is

an o th er Calif

o rn ia en v iro n m en tal h ealth an d j u stice o rg an izatio n

. Its

m em b ersh ip b ase i s l o c ated in East L o s A n g eles, w h ere Def en d an ts’ raily ard s are also lo cated

. NRDC is a n atio n al o rg an izatio n d ed i cated to

en v iro n m en tal j u s tice an d p u b lic h ealth

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According to Plainti f

f s , D e f e n d a nts “have allowed and a

re allowing [diesel particulate matter] to be discharg e d into the air, from which it falls o nto the g round and water n e arby

, a nd is re-entrained into the atmosphere.” Plaintiffs acknowledg e that d iesel particulate matter is initially emitted into the air a s diesel ex haust, but they contend that the solid particles in the

ex h aust are “ transported by wind and air currents o n t o t h e land and wa t e r .” They alleg e that the particles are “inhaled by people both directly and a f t e r t h e particles have f

allen to the earth and then h ave been re-entrained into the air by wind, air currents and passing

vehicles.”

II.

RCRA’s citiz en-suit provision authoriz es private persons to sue “any person

. . . w h o h as contributed or who is contributing to the past or prese n t handling

, storag e , treatment, transportation, o r disposal o f any solid o r haz ar d o u s waste which may present an imminent a nd substantial endang erment to health or the envir o nment.” 42 U.S.C. § 6972(a)(1)(B )

. I n voking that provision, Plaintiffs sued Defendants in the Central District of California, alleg ing that diesel particulates c o nstitute “solid waste a nd haz ardous waste,” the “handli ng , storag e, treatment, transportation, o r di sposal” of w hich Defendants have contributed o r a re contributing to. I n t h e i r complaint, Plaintiffs soug ht injunctive and declaratory relief, asking the dis trict c ourt to declare Defendants’ activities in violation of RCRA a nd order Defendants to take certain control measures to reduce diesel particulate emissions from their raily ards.

Defendants moved to dismiss Plaintiffs’ complaint, contending that Plaintiffs failed to state a claim under RCRA. Specifically

, D efendants asserted that the provision o f RCRAC T R

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reg ulating air emissions, 42 U.S.C. § 6924(n), applies to a ir pollutants r esulting from the b u rning o f fuel “only when the fuel [ i t self] consists of or contains ‘solid’ or ‘haz ardous’ waste, i.e.
, a discarded m at erial.” 2 All other a ir e missions,

acc ording to Defendants, fall w ithin the statutory a nd
reg ulatory scope of the Clean Air Act, the provisions o f which Plaintiffs do not an d c a nnot invoke. 3 Defendants further arg

ued that, even if Cong ress had intended RCRA to apply in this contex t, Plaintiffs could not prevail because Defendants d i d n ot emit diesel ex h aust “into or on any land

or water,” and therefore were not “disposing ” of solid waste within the meaning of RCRA. See 42 U. S

. C

. § 6903(3) (defining “disposal” to mean “the discharg e , deposit, injection, d

umping

, spilling

, leaking

, or placing of any solid
waste or haz ardous waste into o r on any land or water so that [ the waste] may enter the environment or be emitted into the air or discharg ed into any waters”).

I n response to Defendants’ motion to di s m i ss, Plaintiffs
arg ued that f

ailing to apply RCRA to the d i es e l particulates emitted at D efendants’ raily ards would result in a “g a p in the

2 Sectio n 69 2 4 (n ) req u ires th e A dm in istrato r o f th e EP A to p ro m u lg ate

“ reg u latio n s f

o r th e m o n ito rin g an d co n tro l o f air em issio n s at h azard o u s

w aste treatm en t, sto rag e, an d d i sp o sal f acilities, in clu d in g bu t n o t lim ited
to o p en tan k s , su

rf ace im p o u n d m en ts, an d lan d f

i lls.” 4 2 U.S.C. § 6 9 2 4 (n ).

3 T h e Clean A ir A ct’ s citizen

- su it p ro v isio n is m ore lim ited th an R CRA ’ s. Un d er th e Clean A ir A ct, in d iv id u als m ay b rin g su it o n l y t o

en f o rce th e p ro v isio n s o f a p erm it o r ru les p ro m u lg ated b y t

h e EP A

. 4 2 U.S.C. § 7 6 0 4 (a)(1 ). RCRA ’ s p ro v isio n , b y co n trast, au th orizes su its
ag ain st an y p erso n w

h o “ h as co n trib u

ted o r w h o is co n trib u tin g to th e past

o r p resen t

. . . d isp o sal o f an y so lid o r h azard o u s w aste w h ich m ay p resen t

an i m m in en t an d s u

b stan tial en d an g erm en t t o h ealth o r th e en v iro n m en t,” 4 2 U.S.C. § 6 9 7 2 (a)(1 )(B ), w h eth er o r n o t th e p erso n

su ed is co m

p ly in g

w ith th e term s o f

a p erm it o r reg u latio n

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[ Clean A ir A ct] when it comes to emissions from raily ards.” B ecause, according to Plaintiffs, both the Clean Air Act a nd RCRA are intended to apply to mobile sources of air pollution—including diesel particulate emissions—the two laws can and should be “harmoniz ed” to fill the reg ul a t ory g ap that Plaintiffs contend otherwise results.

The district c o urt g ranted D efendants’ motion a nd dismissed Plaintiffs’ complai n t with prejudice. I n its order, the court concluded that the C l e a n Air Act, and not RCRA, applies to the emissions from Defendants’ raily ards and that
any “g ap” that mig ht ex ist between the two statutory schemes “was created throug h a s eries of reasoned and calculated decisions by Congr ess and the EPA.” As an “ independent reason” for g ranting the motion to dismiss, the district court noted that Plaintiffs failed t o state a claim under RCRA because, even if RCRA does apply

, “diesel e x h a u s t is not a

‘ s o l i d or h az ardous waste.’ ” Plaintiffs timely appealed the district court’s order.

III.

W e review d e novo a district court’s o rder g ranting a motion to di s m i s s under F ederal Rule of Civil Procedure 12(b)(6). W e accept as t ru e t he factual alleg ations in the complaint and construe those all eg ations in the lig ht most favorable to the nonmoving party

. H inds Invs., L.P. v

. Angioli , 654 F .3d 8 46, 849–50 (9th Cir. 2011). “To survive

a motion to d i s m i s s, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal

, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly

, 550 U .S

. 544, 5 7 0 (2007)). W e w ill uphold a district court’s decision to d i s m iss “where there is either a lack o f a cog n iz a ble le ga lC T R

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theory o r the absenc e o f s u f f icient facts alleg e d under a cog niz able leg al claim.” Hinds Invs. , 654 F .3d at 850.

To survive a motion to dismiss u nder RCRA’s c itiz en-suit provision, Plaintiffs mus t plausibly alleg e that Defendants have contributed or are contributing to “the past or present handling

, storag e, treatment, transportation, or di s p o s a l o f any solid or haz ardous waste which may present a n imminent a

nd substantial endang erment to health or the envir o nment.” 42 U.S.C. § 6972(a)(1)(B )

. I n o ther words, Plaintiffs must alleg e, based on a cog niz ab l e l e gal theory

, (1) that Defendants have contributed to the past or are contributing to the p resent handling

, treatment, transportation, or disposal o f diesel particulate matte r ; ( 2) that diesel particulate matter is

a “solid waste”; and (3) that the solid waste that Defendants emit “may present an imminent and substantial endang erment to health or the environment.”

I n t h e ir complaint, Plaintiffs alleg e that Defendants “dispose” o f solid w aste—specifically

, diesel p articulate matter—by a llowing the waste to be “transported by wind and air currents onto the land an d w a ter near the raily ards.” According to Plaintiffs’ a lleg ations, the particulates are then “inhaled by p eople b oth directly and a fter the particles have fallen to the earth and then have been re-entrained into the air by wind, air c urrents, and passing vehicles.” They contend that Defendants v iolate RCRA by failing to “limit or control the amount of [ diesel particulate matter] g enerated on and b y the raily ards.” Plai ntiffs’ alleg ations, however, even if true, do not establish t h a t Defendants “ dispose” of solid o rC T R

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haz a rdo u s w aste a s the term “disposal” is defined under RCRA. 4

Under RCRA, “disposal” means

the discharg e , deposit, injec t i on, dumping

, spilling

, leaking

, or placing of any solid waste

or haz ardous waste into or o n a ny land o r water so that such solid wast e or haz ardous
waste or any constituent thereof may enter the

en v ironment or b e emitted into the air o r discharg ed into any waters, including g round
waters.

42 U.S.C. § 6903(3). A l t h o u g h that definition does not plainly state whether emissions of solid waste into the a ir fall within i t s s cope, it does provide sufficient contex tual clues for us to conclude that they do not. See Food & Drug Admin.

v. Brown & W

illiamson Tobacco Corp.
, 529 U .S. 1 2 0
, 132 (2000) ( “T he meaning

—or a mbig uity

—of certain w ords o r phrases may only b ecome evident w hen placed in contex t.”).

4 P lain t if f s d o n o t alleg e th at Def

en d an ts co n t

rib u te o r co n trib u ted to th e

“ h an d lin g ,” “ sto rag e,” “ t reatm en t ,” o r “ tran sp o rtatio n ” o f so lid w aste. Desp ite P lain tif

f s’ co n ten tio n at o ral arg u m en t th at th ey h ad also alleg ed th at Def en d a n t s co n trib u ted to t

h e “ h an d lin g ” o f so lid w aste w ith in th e

m ean in g o f § 69 7 2 (a)(1 )(B ), w e f in d n o th in g in th e reco rd to su p p o rt th at assertio n

. In d eed , in o p p osin g Def en d an ts’ m o tio n

to d ism iss, P lain tif

f s stated th at “ [t]h e h eart o f t h is case is t

h at Def en d an ts’ raily ard s co n trib u te to th e d isp o s a l o f a so lid h azard o u s w aste—d iesel p articu late m atter—th at

m ay p resen t an im

m in en t an d su

b stan tial en d an g erm en t t o t h e h ealth of P lain tif f s’ m em b ers.” W e th eref

o re f o cu s so lely o n th e q u estio n w h eth er th e em issio n o f d iesel p articu late m att e r b y w ay o f diesel ex h au st f ro m Def en d an ts’ raily ard s co n s titu tes “ d i sp o sal” w i th i n th e m ean in g o f RCRA

. S ee Ra vell v. Un ited S ta tes , 22 F.3 d 9 6 0, 9 6 2 n

. 2 ( 9 th Cir. 19 9 4) (d eclin in g to co n s id er a claim raised f o r th e f irst tim e at o ral arg u m en t).C T R

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Our con c l u sion in that r espect is consistent with other provisions of RCRA, and it does not conflict with the statute’s purposes or i ts statutory and leg islative histories. See, e.g. , Carson Harbor Vill., Ltd. v. Unocal Corp.
, 270 F .3d 863
, 877 (9th Cir. 2001) (noting that courts resort to leg islative history “even where the plain l a n g uag e is unambig uous, ‘where the leg islative history clearly indicates that C o n g ress meant something other than what it said’ ” (quoting Perlman v. Catapult En tm’t, Inc. ( In re Catapult Entm’t, Inc.) , 165 F .3d 747, 753 (9th Cir. 1999))).

A

.

W e beg in with RCRA’s tex t. S ee Safe Air for Everyone

v. Meyer
, 373 F .3d 1035, 1041 (9th Cir. 2004). W e note first that RCRA’s definition of “disposal” does not include the act of “emitting .” I nstead, it includes o n l y the a cts o f discharg ing

, depositin g , injecting

, dumping

, spilling

, leaking

, and p lacing

. That “ e mitting ” is not in c l u ded in that list permits us to a ssume, at least preliminarily

, t h a t “ emitting ” solid w aste into the air does not constitute “disposal” under RCRA. See 2 A Norman J

. Singe r & J .D. Shambie Sing er, Sutherland Statutes & Statutory Construction § 47:23 (7th ed. 2012) ( noting that expressio unius est exclusio alterius stands f o r t he proposition that when Cong ress ex presses meaning throu gh a list, a court may assume that what is not listed is

ex c luded).

The tex t of § 6903(3) is also v e r y specific: it limits the definition of “d i s posal” to p articular conduct causing a particular result. B y its terms, “disposal” includes only conduct that results in t h e placement of solid waste “into o r

on any land o r water.” 4 2 U.S.C. § 6903(3). That placement, in turn, must be “so that such solid waste

. . . may enter theC T R

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environment or be emitted into the air or discharg ed into any waters, including g round waters.” Id. W e therefore conclude that “d isposal” occurs where the solid waste is first placed “into o r on any land or water” and is thereafter “emitted into the air.”

The solid waste at issue h e re, however, at least as it is characteriz ed in Plaintiffs’ complaint, is not f irst placed “into

or on any land or water”; rather, it is first emitted into the air. Only after the waste is e mitted into the a ir does it then travel “onto the land and water.” To a dopt Plaintiffs’ interpretation of § 6903(3), then, would effec tively be to rearrang e the wording of the statute—something that we, as a court, cannot do. Reading § 6903(3) as Cong ress has drafted it, “disposal” does not ex tend to em i s s ions of solid w aste d irectly into the air.

Other provisions of RC RA f urther support that conclusion. T he term “release,” for ex ample, which is defined in the section of RCRA g overning underg r ound storag e tanks, incl u d es “spilling

, leaking

, emitting
, discharg ing

, escaping

, leaching

, o r disposing

. . . into g r ound water, surface water or subsurface so i ls.” 4 2 U .S.C. § 6991(8) (emphasis added). “[ W ]hen Cong ress includes particular lang uag e in one section of a statute but omits it in another section of the same Act, it is g enerally presumed that Cong r ess acts intentionally and p urposely in the disparate inclusion or ex clusion.” Barn h a r t v. Sigmon Coal Co.
, 534 U.S. 438, 452 (2 0 0 2 ) (internal quotation marks omitted). That Cong r ess kn e w h o w to define “disposal” to include emissions, b ut nonetheless chose not to, counsels ag ainst our reading into the definition of “disposal” conduct that Cong r ess must have intended to ex clude from its reach.C T R

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United States v

. Power Engineering Co.
, 191 F .3d 12 2 4 (10th Cir. 1999), which Plaintiffs cite for the proposition that “aerosoliz ed solid waste would not lose its character as solid

wa ste simply because it was disposed of throug h the air,” is
not to the c ontrary

. I n Power E ngineering
, the Tenth Circuit decided the question whether d efendant Power Eng ineering Company w a s subject to certain f inancial a ssurance provisions of Colorado’s RCRA State I mplementation Plan. Id. at 1227–28. Power Eng ineering had been dis c h a r g ing hex avalent chromium and other haz ardous materials into the soil on its fa c i lity ’s site, a nd the materials had then leaked into the g roundwater and made their way into w a ters of the P latte River. Id. at 1 229, 1231. The court concluded that disposing of the haz ardous mist o n t o t he soil constituted illeg al “disposing of haz ardous wastes.” Id. a t 1231. Contrary to Plaintiffs’ contentions, Power E ngineering did
not involve disposal of solid waste “throug h the air,” and so does not support the proposition that Plaintiffs attribute to it. 5

Plaintiffs additionally contend that, b e c ause RCRA has an “air emissions” provision, see § 6 924(n), “emitting ” must fall within the statute’s reach and therefore may form the basis o f

a citiz en suit under § 6972(a)(1)(B ). Plaintiffs read § 6924(n)

as proof that both RCRA a nd the Clean A ir Act ex tend to air emissions. B ecau s e that is so, Plaintiffs continue, the two

5 P lain tif f s cite Un ited S ta t es v. Ap ex Oil Co

. , N o

. 0 5

- CV- 2 4 2

- D RH, 2 0 0 8 W L 2 94 5 4 0 2 (S.D. Ill. J u ly 2 8
, 2 0 0 8 ), f o r a sim ilar p ro p ositio n , b u t th at case is lik ew ise in ap p o site. In Ap ex O il

, t h e v ap o rs w ere d isp o sed of

o n to th e lan d

, af

ter w h i ch th ey leak ed in to g ro u n d w ater an d w ere released in to th e air. Citizen s Ag a in st Po llu tio n v. Oh io Po wer Co

. , No

. C2

- 04

- CV- 37 1
, 2 0 0 6 W L 68 7 0 56 4 (S.D. Oh i o J u l y 1 3 , 2 0 0 6 ), y et an o th er case th at P lain tif

f s cite, is th e o n ly case th at su p po rts th eir in terp retatio n

. B ecau se w e f

in d t h e r e a s o n in g o f Citizen s Ag a in st Po llu tio n co n trary to RCRA ’ s tex t an d leg islativ e h isto ry , w e d eclin e to rely o n it.C T R

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statutory schemes should be “ h a r m o n iz ed” in a way that “g ive[ s ] e ffect to both.” Plaintiffs sug g est that we “harmoniz e” the two laws by reading RCRA’s defi n i t i o n o f disposal to include emissions of soli d waste from Defendants’ raily ards.

W e a re not persuaded. Section 6924(n) o f RCRA requires the EPA to promulg ate reg ul a t i o ns “ f or the monitoring a

nd control of a ir emissions at haz ardous waste treatment, storag e, and disposa l f

acilities, including but not limited to open tanks, surface impoundments, and landfills

, a s may be

necessa r y to protect human health and the environment.” A l t houg h that section clearly contemplates that certain air

e m i s sions will fall within RCRA’s reg ulatory reach, it do e s not provide a private r i g h t of action. And § 6 972(a)(1)(B ), RCRA’s citiz en-suit provision, does n ot permit individuals to bring suit to e nforce § 6924(n). T h us, t h e f a c t that RCRA permits the E PA to reg ulate air emissions is not to say that it provides “ any person,” by way of its citiz en-suit provision, a private rig h t of action with r espect to th o s e e m issions. I ndeed, a s noted e arlier, the very ex istence of § 6924(n)
sug g ests that Cong ress, by not inclu d i n g “emitting ” in the actions prohibited u nder § 6972(a)(1)(B ), intended to ex clude it.

Thus, we preliminarily conclude—based on the statute’s wording considered a l one and in contex t—that emitting diesel particulate matter into the air does not constitute “disposal” as that term is d efined under RCRA. To the ex tent that the definition of “disposal” is a m b i gu o us o n this point,

see Citizens Against Po llution

, 2 006 W L 6870564, at *5 (reaching a different c onclusion), the statutory and leg islative histories of both RCRA and the Clean Air Act resolve t hat ambig uity . W e turn to those histories.C T R

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B.

W h en the Clean Ai r A c t w a s enacted in 1963, it left the task of controlling air pollution lar ge ly to the states. See Clean A ir Act, Pub. L

. No

. 8 8-206, 77 Stat. 392 (1963). I t

was not until 1970, after a comprehensive overhaul of the Act, that Cong ress a dopted a national sy stem of air quality standards, emission limits, and other requirements seeking to “preven[ t] and control

. . . air pollution at its source.” Clean Air Act Amendments of 1970, Pub. L

. No. 91- 6 04, § 101(a)(3). The 1970 amendments required th e f e d e ral
g overnment, by way of the newly c r eated EPA, to establish National Ambient Air Quality Standards (NAAQS) f o r pollutants that adversely affect public health and welfare, a s well as to establish national emission standards for “haz ardous air pollutants.” §§ 108–09, 112, 84 Sta t

. 1 6 76, 1678–80, 1685–86. The 1970 a mendments al s o r equired
states to submit “State I mplementation Plans” to “provid[ e] for implementation, maintenance, and en forcement” of the NAAQS. § 110(a)(1), 84 Stat. at 1680.

Of particular relevance to this case, the leg islative history leading up to the 1970 amendments sug g ests that Con gr e ss considered, but ultimately d id not adopt, a provision that would have required the E PA to adopt national standards for emissions from locomotives. See Hearings B efore the Subcomm i t t ee on Air and W ater Pollution of the Committee

on Public W

orks

, 91st Cong

. 1 39 (1970) (testimony o f Robert H. F inch) (describing the provisions of Senate Bi l l 3229, which would have “authoriz e[ d] the Department to establish national standards for the c o ntrol of e missions from

. . . locomotives” and noting that althoug h “loc o m o t i ves

. . . a re not major sources of air pollution at this time

. . . , we support the principle of making

them subject to emission controls”).C T R

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Cong r ess also recog niz ed, but similarly opted not to address, the environm en t a l problem arising from diesel emissions from heavy -duty t rucks and buses. See, e.g. , id. at 65 (testimony of J ohn Middleton) (noting that “beg inning J an u a r y 1
, 1 970,

. . . all new diesel eng ines will necessarily comply wit h a smoke emission standard” but that “[ t] he serious problem is w hat do y ou do with the used d iesel vehicle or the used g asoline-fueled vehicle? ”).

Six y ears later, Cong ress e nacted RCRA i n a n effort to “solv[ e ] the problems associated with the 3–4 billion tons o f discarded materials g enerated e ach y e a r, and the problems resulting f

rom the an t i c ipated 8% annual increase in the volume of such waste.” H.R. Rep. No. 94-1491, at 2 (1976) (Conf. Rep.). 6 The law was intended to “eliminat[ e] the last remaining loophole in environmental law, that of unreg ulated land disposal of discarded materials and haz ardo u s wastes.” Id. at 4. As its name sug g e sts, the law was intended to provide “two possible solutions” to the “discarded materials problem”: (1) “resource conservation[

, achieved] by reducing the a mount of waste g enerated,” a n d (2) “ resource [ recovery ], achieved by reclaiming valuable materials from the w aste a nd thereby reducing the volume to be disposed of.” Id. at 10.

B y its terms, RCRA thus g o ver n s the disposal o f “discarded materials,” including “solid waste.” The law also
g overns “ haz ardous waste,” which is “a solid wast e , o r combination of s o l id wastes, which because of its quantity

, c o n c e n t r a t i o n , o r p h y s i c al

, ch e mical, or infectious characteristics may ” cause, contribute to, or “ p o s e a

6 RCRA w as en acted as an am en dm en t t o t h e So lid W aste Disp o sal A ct,

w h ich w as o rig i n ally en acted in 1 9 6 5

. See So lid W aste Disp o sal A ct, P u b

. L . No . 8 9

- 2 1 2 , 7 9 Stat. 9 97 (1 9 6 5 ).C T R

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16

substantial present o r p otential haz ard” to human o r environmental health. 4 2 U.S.C. § 6903(5). RCRA provides for solid a

nd haz ardous waste manag ement, which are “the

s y stematic [ control or] administration of activities w h i c h provide for the collection, s o u r ce separation, storag e , transportation, transfe r, p rocessing

, treatment, and disposal of” solid and haz ar d o u s wastes. 42 U.S.C. § 6903(7), (28). W h en RCRA was enacted in 1976, it d i d not include a provision reg ulating air emissions from solid or h a z ardous waste disposal facilities.

I n 1 977, ag ainst the b ackdrop of RCRA’s enac tment the
y ear before, Cong r ess a g ain sig n ificantly overhauled the Clean Air Act. The 1977 o verhaul w as made i n a n e ffort to provide additional g uidance on matters like b e s t available control technolog ies, unreg ulated pollutants, and other issues
t h a t had g one unaddressed in p rior versions of the Act. S e e H.R. Rep. No. 95-564 (1977) (Conf. Re p

. )

. As part o f the 1977 r evision, Cong ress added two p r ovisions relevant to this

case.

The first was a provision requiring the EPA to conduct a railroad emissions study

. I n response to industry

r e c o m m e n d a t i o n s t h a t C o n gr e s s c o n s ider “[ f ] e d e ra l
reg ulation of air pollutants emitted from railroad rolling stock,” Cong ress requested that t he EPA conduct a study to

assess ( 1 ) “the ex tent to which emissions from railroads a re

a national problem,” (2) “sta te of the a rt o f control technolog y ,” a n d (3) “the kinds of r eg ulations o f emissions currently imposed o n railroads by State and local authorities.” S. Rep. No. 95-127, at 93 (1977); see also Clean Air A ct Amendments of 1977, Pub. L

. N o. 95-95, § 404, 9 1 Stat. 685, 793–94 (calling for a railroad emissions study ).C T R

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The sec o n d was a series of provisions establishing what is known as the “indirect source review progr am.” Those provisions prohibited the federal g overnment from reg ulating
any “indirect source,” or a n y “facili t y , building

, structure, installation, real p r operty , r oad, or hig hway which attracts, o r may attract, mobile sources of pollution,” with the ex c eption of those that are federally assisted, owned, or operated. Pub. L

. No. 95

- 9 5
, § 108(e), 91 Stat. at 696. The indirect source review pr o g ram permits, but does not require, a state to reg ulate indirect sources as part of that state’s Clean Air A ct implementation plan. Id. 7 I n this case, neither party disputes that D efendants’ raily ards are “indirect sources” within the meaning of the “indirect source review prog ram” provision.

So, b y 1977, the r eg ulation of emissi o n s from locomotives and raily a

rds was g overned solely by the Clean Air A ct. However, under its indirect source review prog ram, the Clean Air Act prohibited federal reg ulation of sources like Defendants’ raily ards, leaving reg ulation o f e missions from those sources entirely to the states. RCRA, for its part, included no provision reg ulating air em i ssions and, indeed, did not even contemplate the disposal of material into the air;

acc o r d i n g to its stated purpose, RCRA was limited to

7 A Ho u se Rep o rt f

ro m 1 9 7 7 d o cu m en ts a f

ew o f th e reaso n s th at f

ed eral
reg u latio n o f in d irect so u rces of p o llu tio n w as co n sid ered so co n tro v ersial
at th at tim e: (1 ) i n d irect so u rces d o n o t p o llu te an d th eref o re sh ou ld n ’ t b e

su b j ect t o th e Clean A ir A ct; (2 ) in d i r e c t so u rce co n tro l sh o u ld n ot b e req u ired b ef

o re au to m o b ile p ollu tio n

is f u lly co n tro lled ; (3 ) EP A h as n o

ex p ress statu to ry au th o rity o v e r in direct so u rces; (4 ) “ [i]n d irect so u rce

co n tro ls are v eiled lan d u se co n tro ls”; (5 ) in d irec t so u rce co n tro ls w i l l

o n ly d elay d ev elo p m en t an d co n stru ctio n , co n trib u tin g t o u n em plo y m en t, in f latio n , an d re c e s s i o n ; an d (6 ) i n d irect so u rce co n tro ls w ill p ro m o te

u rb an sp raw l . H.R. Rep . No . 9 5

- 29 4 , at 2 2 0 –2 1 (1 9 7 7 ).C T R

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18

reg ulating “land disposal.” S ee H.R. Rep. No. 94-1491, at 4 (1976) (Conf. Rep.).

That chang ed in 1984, w hen Cong ress amended RCRA to include a provision reg u lating air emissions from c ertain

s o urces. That provision r equires the EPA to “promulg ate such reg ulations f

o r the monitoring and control o f air emissions at haz ardous waste treatment, storag e, and disposal facilities.” H a z a

r d o us and Solid Waste Amendments of 1984, Pub. L

. No. 98-616, § 2 01(n), 98 Stat. 3221, 3233. A Senate Report summariz ing the 1984 a mendments sheds some lig ht

on Cong r ess’s intent as to the scope of the e m i s s ions provision:

There i s a considerable body o f information indicating that emissions into the

a ir from haz ardous waste f acilities pos e a

s i g n i f i c a n t t h r e a t t o h e a l t h a n d t h e environment. Emissions of volatile chemicals from treatment, storag e and disposal of wastes have been estimat e d to be of a similar
mag nitude a s emissions o f the same

c o m p o u n ds from industrial processes. Stud i e s of haz ardous waste surface i m p oundments and landfills report that sig nificant quantities of haz ardous constituents in the wastes may be emitted into the air. . . .

Proposals to reg ulate emissions f rom h a z a r d o u s w a s t e f

a c i l i t i e s h a v e b e e n publish e d on several occasions since the
passag e of [ RCRA] in 1 976. F inal reg ulations have never b een issued. The Ag e ncy also has authority to reg ulate emissions of haz ardousC T R

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air pollutants under the Clean A ir Act, but its performance u nder that Act has been appalling ly

slow.

S. R e p

. No. 98-284, at 63 (1983). Thus, with the 1984 amendments, Cong ress c r eated the first (and only ) overlap between RCRA and the Clean A ir Act: reg ulation o f emissions of haz a

rdous air pollutants from “haz ardous waste treatment, storag e, and disposal facilities.”

Cong r ess most recently overhauled the Clean A i r A ct in 1990. See Clean Air Act Amendments of 1990, Pub. L . No. 101-549, 104 S t a t

. 2 399. During that process, Cong ress amended the Act to requi re the EPA to promulg ate reg ulations “ containing standards a pplicable to emissions from new locomotives a

nd n ew eng ines used i n locomotives.” See § 222(a), 104 Stat. at 2500. 8 The amended statute

ex p ressly prohibits the states from doing the same: “No State
or any political subdivision thereof shall adopt or attempt to enforce any standard or o ther requireme n t r e lating to the control of emissions from

. . . [ n] e w locomot i v e s o r new

8 T h e p ro v i sio n

f u rth er states,

Su ch stan d ard s sh all ach iev e th e g reatest d eg ree o f

em issio n red u ctio n ach iev ab le th ro u g h th e ap p licatio n

o f tech n o lo g y w

h ich t h e A d m in istrato r d eterm in es w i l l b e av ailab le f

o r th e lo co m otiv es o r e n g i n es to w h ich

su ch stan d ard s ap p ly

, g i v in g ap pro p riate co n sid eratio n to th e co st o f ap p ly in g su ch tech n o lo g y w ith in th e p erio d o f tim e av ailab le to m an u f actu rers an d to n o ise,

en erg y , an d saf

ety f acto rs asso ciate d w i th th e ap plicatio n

o f su ch tech n o lo g y

.
§ 2 2 2 (a), 1 04 Stat. at 2 50 0

.C T R

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20

eng ines used in locomotives.” § 222(b)

, 1 0 4 S tat. at 2502. 9 Pursuant to its leg islative directive, the EPA p romulg a ted the “New L o comotive Rul e , ” 6 3 F ed. Reg

. 1 8 978 (Apr. 16, 1998), and has since promulg ated a d ditional rules that a pply
to emissions from heavy -duty vehicle eng ines and nonr o a d vehicles. See, e.g ., 6 6 F ed. Re g. 5 0 0 2 (J an. 18, 2 001) (Heavy -Duty Hig hway Rule); 73 F ed. Re g

. 3 7096 ( J une 30, 2008) (Updated New L ocomotive Rule).

Thus, in 1990, reg ulation of e missions from locomotives and raily ards, which are indirect sources subject to the indirect source re v i e w prog ram, remained g overned by the provisions of the Clean Air A ct. B y w ay of t h e A c t ’ s 1977 and 1990 ame n d m e nts, reg ulation of locomotives a nd locomotive eng ines w as l eft ex clusively to the EPA, a nd
reg ulation of r aily ards, as indirect sources of air p ollution,

was ex pressly ( althoug h permissively ) left to the states. RCRA applied to neither. The only o verl ap between the Clean A ir A ct and RCRA was in the reg ulation of emissions f rom “haz ardous w aste treatment, storag e, and disposal facilities.”

* * * * *

The statutory and leg islative histories help to resolve any tex tual ambig u ities i n a t l e a st two w ay s. F irst, they make clear that RCRA, in lig ht of its purpose to reduce the volume of waste that ends up in our nation’s landfills, g overns “land disposal.” The Clean Air Act, by con t r as t, g o verns air

9 T h e leg islativ e h isto ry su g g ests th at Co n g ress en acted th e pro h ib itio n

o n state reg u latio n in lig h t o f th e “ u n co n s titu tio n al b u rd en s” th at su ch state ef f o rts “ w o u ld i m

p o se

. . . o n in terstate co m m erce.” 1 3 6 Co n g

. R ec. H 1 2
, 8 4 8 (d aily

ed . Oct. 2 6 , 1 9 9 0) (statem en t o f Rep . Din g ell).C T R

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pollutants. To that end, the histories confirm our r eading o f the RCRA’s tex t.

S econd, the histories further c larify that Defenda n t s ’ raily ards, as “indirect sources” of a ir p ollution, are ex cluded from r eg ulation under bo t h statutory schemes. A s we

ex p lained, when RCRA was amended in 1984 to include the emissions provision on which Plaintiffs rely here, the Senate Committee on Environment and Public W orks noted that the EPA “has authority to reg ulate [ these emissions] u n d er the Clean Air Act, but its p erformance under that A ct h a s been appalling ly slow.” S. Rep. No. 98-284, at 63 (1983). Thus, the emissions that Cong ress intended to be g o v e r n e d b y the newly e nacted RCRA provision were also, at that time,
g overned by the Cle a n A ir Act. Defendants’ raily ards, however, as indirect sources, fell outside the scop e of the Clean Air Act, a

nd therefore mus t a l s o be ex cluded from RCRA’s reg ulatory

reach.

The upshot of that conclusion, of course, is that emissions such as those at issue here—emissions from indirect sources like raily ards—fall entirely outside the ambit of federal
reg ulation. On one hand, the Clean Air A ct’s indirect source review prog ram prohibits f ederal reg ulation of e missio n s from indirect sources; o n the other, RCRA, as we interpret it, likewise does not ex tend to these emissions. Plaintiffs, rely ing on the Supreme Court’s decision in Morton v

. Mancari
, take issue with the reg u latory “g ap” that results a nd invite us to fill that g ap by “harmoniz ing ” t h e t w o statutory schemes. See 417 U.S. 535, 551 (1974) (“W hen there are two acts u pon the same subject, the rule is to g ive e ffect to both if possible.” ( internal q uotation marks omitted)). F o r two reasons, we decline the invitation.C T R

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22

F irst, the Supreme Court in M orton announced a rule disfavoring “repeal[ s] by implication,” reiterating i n stead that the leg islature’s intent to repeal must be c lear. Id. at 550. “I n t h e absence of some affirmative showing of an intentio n t o repeal, the o nly permissible justification for a repe a l b y implicatio n i s w hen the earlier and later statutes a re irreconcilable.” Id. U nder M orton , where two laws go v e r n the same conduct

, a court must identify the deg ree to which the two laws “irr e c o n c ilably conflict”; only where an irreconcilable conflict occurs will the court consider the later law to have impliedly repealed the earlier one. B ut where, a s here, there is n o overlap between the two laws, Morton ’ s rule simply does not apply

.

B u t, Morton a side, the second reason we decline to fill the
reg ulatory

“g ap” that Plaintiffs contend ex ists is b e cause we ag ree with the dist r i c t c ourt that any “ g ap” is the product o f

a careful and r easoned decision made by Cong ress that we a re not at liberty to disturb. The statut ory and leg islative histories make clear that Cong r ess, having identified specific

reasons for its decision, intended to ex clude indirect sources from federal reg ulation. And its reasons for doing so, see H.R. Rep. No. 95-294, at 220–21, are n o less applicable under RCRA than they are under any other federal l a w

. Cong ress

was entitled to leave the reg u lation of indirect sources to the states, and we defer to its reasoned judg ment in doing so.

IV.

W e conclude that, by e mitting d iesel parti c u l a t e matter from their raily ards and intermodal f acilities, Defendants doC T R

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not “dispose” of solid waste in violation of RCRA. 1 0 That conclusion, in our v iew, follows relatively c l ea rly from RCRA’s tex t; however, to the ex tent that it s t e x t is ambig uous, RCRA’s statuto r y and leg islative histories resolve that ambig uity

. T hus, Plaintiffs fail to state a plausible claim for r e lief under § 6 972(a)( 1 ) ( B ). W e therefore AF F IRM the district court’s judg ment.

10 B ecau s e w e co n clu d e th at Def en d an ts d o n o t “ d isp o se” o f so lid w aste in v io lat i o n o f RCRA
, w e n eed n o t reach th e p arties’ arg u m en ts ab o u t

w h eth er d iesel particu late m atter is in d eed “ so lid w aste” u n d er 4 2 U.S.C. § 6 9 0 3 (2 7 )

. L ik ew ise, w e d o n o t reach th e q u estio n w h eth er d iesel
p articu late m atte r , i f i t is a so l id w aste, “ p resen t[s] an im m in en t an d

su b stan tial en d an g erm en t to h ealth o r th e en v iro n m en t.” § 6 9 7 2 (a)(1 )(B ).