In a potentially significant opinion last week, in
Little Hocking Water Association v. DuPont, Judge
Algenon Marbley gave hope to citizen plaintiffs everywhere, with a
remarkably expansive reading of the imminent and substantial
endangerment language in RCRA's citizen suit provision.
The decision covers a lot of ground, and is well worth reading
(and, in fairness, Judge Marbley did reject some of plaintiffs'
claims).
The most significant holding was that DuPont's emissions of
perflourooctanoic acid, or C8, into the air could constitute
"disposal" of a "solid waste" that would
subject DuPont to liability under RCRA. Although Judge
Marbley struggled mightily to distinguish it, his holding seems
difficult to reconcile with the recent decision in
Ctr. For Cmty. Action & Envtl. Justice v. BNSF R.
Co., in which the 9th Circuit – that
noted bastion of conservative environmental decisions – ruled
that diesel emissions into the air did not constitute disposal of a
solid
