Appendices — Safe Air for Everyone v. Meyer

United States Court of Appeals,

Ninth Circuit.

SAFE AIR FOR EVERYONE, Plaintiff-Appellant,

V.

WAYNE MEYER, et al., Defendants-Appellees

No. 02-35751.

Argued and Submitted Nov. 4, 2003.

Filed July 1, 2004.

loel M. Gross, Arnold & Porter, Washington, D.C.,

for the plaintiff-appellant.

Gary H. Baise, Baise & Miller, Washington, D.C., for

the defendants-appellees.

lon M. Bauman, Elam & Burke P.A., Boise, ID, for

amicus curiae American Lung Association of

Idaho/ Nevada.

Karl T. Klein, Givens Pursley LLP, Boise, ID, for

amicus curiae Idaho Medical Association, Inc.

Appeal from the United States District Court for the

District of Idaho; Edward J. Lodge, District Judge,

Presiding. D.C. No. CV-02-00241-EJL.

Before: WARDLAW, GOULD, and PAEZ, Circuit

Judges.

GOULD, Circuit Judge:

We consider whether grass residue remaining

after a Kentucky bluegrass harvest is "solid waste’

within the meaning of the Resource Conservation and

Recovery Act ("R "). Safe Air for Everyone ("Safe

Air") appeals the district court's dismissal of its

complaint for injunctive relief under RCRA. We

conclude that the district court erred in dismissing the

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case on jurisdictional grounds. However, because we

determine that Safe Air has failed to demonstrate that a

genuine issue of material fact exists as to whether grass

residue is "solid waste" under RCRA, we affirm the

judgment of the district court.

I.

In Idaho, Kentucky bluegrass is oo planted

in the spring but does not flower and produce seed until

the summer of the following gs By the time the

flowers have produced seed, the bluegrass plants are

fifteen to thirty-six inches tall. To harvest bluegrass

seed, farmers first cut the crop close to the ground to

rs the crop for combining (i.e., separating the seed

om the crop). A "curing" process dries out and ripens

the head a the crop. After the curing process is

complete, a combine separates the seed from the straw,

leaving the straw on the field. The seed is prepared for

commercial distribution. However, straw and stubble

(the wet of the crop not cut from the ground) remain in

the field. Bluegrass farmers burn these remnants, a

—. called "open field burning" or "open burning."

luegrass farmers can repeat this process for several

years, depending on the length of the productive life of

each bluegrass field.

Safe Air is a non-profit corporation formed by

individuals from northern Idaho, Washington, and

Montana. One of Safe Air's objectives is to stop the

practice of open burning. Safe Air asserts that smoke

resulting from open burning endangers the public

because it contains high concentrations of pollutants that

create severe respiratory problems for residents in areas

immediatel surrounding bluegrass farms. Defendants-

pe gine ‘the Growers") are a group of 75 individuals

and corporations that plant and harvest Kentucky

bluegrass seed commercially in Idaho. All of the

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Growers engage in open burning in the process of

growing Kentucky bluegrass.

Safe Air filed a complaint in the United States

District Court for the District of Idaho on May 31, 2002,

alleging that the Growers, by engaging in open burning,

violated the Resource Conservation and Recovery Act,

42 USC. § 6972(a)(1)(B).’ Safe Air also sought a

preliminary injunction enjoining the Growers from

engaging in open burning. e Growers filed a

response in opposition to Safe Air's motion for

preliminary injunction, and also filed a motion to

dismiss the complaint on the basis of lack of subject

_ Matter jurisdiction.

On July 10-12, 2002, the district court held an

evidentiary hearing on Safe Air's request for preliminary

injunction at which the testimony of twenty-three

witnesses was given subject to cross examination. On

July 19, 2002, the district court dismissed Safe Air's

complaint, concluding that it was without jurisdiction to

resolve Safe Air's R claim because, inter alia, grass

residue did not constitute "solid waste" under RCRA.’

Safe Air appeals. We have jurisdiction under 28

U.S.C. § 1291, and affirm.

‘This provision permits an individual to file suit:

against ... any past or present generator, past or present transporter,

or past or present owner or operator of a treatment, storage, or

disposal facility, who has contributed or who is contributing to the

past or present handling, storage, treatment, transportation, or

disposal of any solid or dous waste which may present an

imminent and_ substantial endangerment to heal or the

environment. 42 U.S.C. § 6972(a)(1)(B),

, The district court also dismissed Safe Air's federal common

law nuisance claim. That claim is not presented to us on appeal.

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II.

We first address the unusual procedural posture

of the case. The Growers filed a motion to dismiss

pursuant to Federal Rule of Civil Procedure 12. The

district court construed the Growers' motion to dismiss

as proceeding under Rules 12tb\{) and 12(b)(6), and

granted the Growers' motion under Rule 12(b)(1).

Safe Air argues that the district court erred in

dismissing its complaint because: () the district court

- reviewed evidence outside the complaint (i.e., evidence

from the preliminary injunction hearing) without

converting the motion to dismiss into a summ

judgment motion under Rule 56; and (2) the district

court erroneously construed as a jurisdictional issue the

question of whether grass residue (i.e., the straw and

stubble that remain on the Growers' fields after the

bluegrass + is "solid waste" under RCRA. We

disagree with Safe Air on the first issue because the

district court, in this context, was not obligated formally

to convert the Growers' motion into a motion for

- summary judgment solely because it reviewed evidence

outside the complaint. However, as to the second issue,

we agree that, in the circumstances of this case, the

district court erred by treating the issue of whether grass

residue is solid waste under RCRA as a jurisdictional

issue.

The district court dismissed Safe Air's claim for

lack of subject matter jurisdiction under Rule 1ofb)(7 A

Rule 12(b\(1) jurisdictional attack may be facial or

factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir.2000)

(citation omitted). In a facial attack, the challenger

asserts that the allegations contained in a complaint are

insufficient on their face to invoke federal jurisdiction.

By contrast, in a factual attack, the challenger disputes

the truth of the allegations that, by themselves, would

otherwise invoke federal jurisdiction. The Growers'

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jurisdictional attack was factual because the Growers

challenged Safe Air's contention that grass residue

constitutes solid waste under RCRA. Morrison v. Amway

Cort 323 F.3d 920, 924 n. 5 (11th Cir.2003) (jurisdictional

challenge was a factual attack where it "relied on

extrinsic evidence and did not assert lack of subject

matter jurisdiction solely on the basis of the pleadings’).

In resolving a factual attack on jurisdiction, the

district court may review evidence beyond the

complaint without converting the motion to dismiss into

a motion for summary judgment. Savage v. Glendale

Union High Sch., 343 F.3d 1036, 1039 n. 2 (9th Cir.2003

h ;

(citing White, 227 F.3d at 1242). The court need not

resume the truthfulness of the F wagene allegations.

ite, 227 F.3d at 1242. "Once the moving party has

converted the motion to dismiss into a factual motion by

resenting affidavits or other evidence properly brought

fore the court, the party oe the motion must

furnish affidavits or other evidence necessary to satisfy

its burden of pogo ea subject matter jurisdiction."

Savage, 343 F.3d at 1039 n.

However, "[jjurisdictional dismissals in cases

premised on_ federal-question jurisdiction are

exceptional, and must satisfy the requirements s ecified

in Bell v. Hood, 327 US. 678, 66 S.Ct. 773, 90 L.Ed. 939

(1946)." Sun Valley Gas., Inc. v. Ernst Enters., 711 F.2d

138, 140 (9th Cir.1983). In Bell, the Supreme Court

determined that jurisdictional dismissals are warranted

"where the alleged claim under the constitution or

federal statutes clearly appears to be immaterial and

made solely for the purpose of obtaining federal

jurisdiction or where such claim is wholly insubstantial

and frivolous." 327 US. at 682-83, 66 S.Ct. 773.

We have held that a [jurisdictional finding of

genuinely disputed facts is inappropriate when ‘the

jurisdictional issue and substantive issues are so

intertwined that the question of jurisdiction is

dependent on the resolution of factual issues going to

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the merits' of an action." Sun Valley, 711 F.2d at 139

a Augustine v. United States, 704 F.2d 1074, 1077

th_Cir.1983)).° The question of jurisdiction and the

merits of an action are intertwined where "a statute

rovides the basis for both the subject matter

Jurisdiction of the federal court and the plaintiff's

substantive claim for relief." Id. See also Thornhill Publ'

Co. v. Gen. Tel. Co. 594 F.2d 730, 734 (9th Cir.1979)

("[W]hen a statute provides the basis for both the subject

matter jurisdiction of the federal court and the plaintiffs'

substantive claim for relief, a motion to dismiss for lack

of subject matter jurisdiction rather than for failure to

state a claim is proper only when the allegations of the

complaint are frivolous.") (quotation omitted).

The district court erred in characterizing its

dismissal of Safe Air's complaint under Rule 12¢by(1)

because the jurisdictional issue and substantive issues in

this case are so intertwined that the question of

jurisdiction is dependent on the resolution of factual

issues going to the merits. The Growers have not

argued that Safe Air's federal claims are "immaterial,"

"made solely for the purpose of obtaining federal

jurisdiction," or "wholly insubstantial and frivolous."

Bell, 327 U.S. at 682-83, 66 S.Ct. 773. Whether Safe Air

alleged a claim that comes within RCRA's reach goes to

the merits of Safe Air's action. Sun Valley, 711 F.2d at

140 ("[t]he ability of [the plaintiff] to allege a claim that

comes within the definitional reach of the [Petroleum

Marketing Practices Act] is a matter that goes to the

merits of the action.").

* Two of our sister circuits that have considered this issue are in

accord. See, e.g., Morrison v. Amway Corp., 323 F.3d 920, 925 (11th

Cir.2003) ("[w]e have cautioned, however, that the district court

should only rely on Rule 12(b)(1) if the facts necessary to sustain

jurisdiction do not implicate the merits of plaintiff's cause of action.")

(internal quotation omitted); Williamson v. Tucker, 645 F.2d 404, 415

(5th _Cir.1981) ("Where the defendant's challenge to the court's

jurisdiction is also a challenge to the existence of a federal cause of

action, the proper course of action for the district court ... is to find

that jurisdiction exists and deal with the objection as a direct attack

on the merits of the plaintiff's case.").

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Safe Air filed its claim under the "citizen suit"

provision of RCRA, 42 U.S.C. § 6972(a)(1)(B), which

permits suits:

against any person .. who has

contributed or who is contributing to

the past or present handling, storage,

treatment, transportation, or disposal of

any solid or hazardous waste which may

present an imminent and _ substantial

endangerment to health or the

environment.

(emphasis added). Because this

sag ioe ay of RCRA "provides the basis

or both the subject matter jurisdiction

of the federal court and the plaintiff's

substantive claim for relief," the

Snag of jurisdiction and the merits of

is action are intertwined. For this

reason, we hold that the district court's

characterization of its dismissal under

Rule 12(b)(1) was error. Sun Valley, 711

F.2d at 139.

Il.

For the reasons expressed above, we review the

district court's order below not as a dismissal for lack of

subject matter jurisdiction but rather as a grant of

summary judgment on the merits for the Growers. Great

W. Bank & Trust v. Kotz, 532 F.2d 1252, 1254 (9th

Cir.1976) (per curiam) (reviewing the district court's

dismissal for lack of jurisdiction as a grant of summary

judgment where the district court's dismissal was based

on its conclusion that the note in question was not a

"security" within the Securities Exchange Act).* Thus we

‘ Viewed in this light, we will review the ruling de novo. United

States v. City of Tacoma, 332 F.3d 574, 578 (9th Cir.2003). Viewing the

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review RCRA and its definition of "solid waste,"

interpretations of the statutory language in case law,

and RCRA's legislative history to determine if Safe Air

has demonstrated a genuine issue of material fact on the

i of whether grass residue is "solid waste" under

RCRA.

"RCRA is a comprehensive environmental statute

that governs the treatment, storage, and disposal of solid

and yr waste." Meghrig v. KFC Western, In 6

4/9, 45 6 S.Ct. 12 4 0.20 12 76).

"Congress' ‘overriding concern’ in enacting RCRA was to

establish the framework for a national system to insure

the safe management of e." inin

ng. 2. ke, 77,1179 (D.C.Cir. ‘

Congress also expressed concern over "the 'rising tide’ in

scrap, discarded, and waste materials" and "the need to

reduce the amount of waste and unsalvageable materials

and to provide for proper and economical solid waste

ond tal ‘smeae! Id. (quoting 42 U.S.C. § 6901(a)(2)

Safe Air filed this lawsuit under the citizen suit

provision of RCRA, 42 USC. § oF72(a)(1\(B). To

prevail, Safe Air must establish that the Growers are

contributing to the "handling, storage, treatment,

transportation, or disposal of any solid or hazardous waste

which may present an imminent and_ substantial

endangerment to health or the environment." 42 U.S.C.

g 6973(a)(1)(B) (emphasis added). Safe Air does not

allege that the grass residue in question is "hazardous

waste." Therefore, the crux of the case turns on the issue

of whether Kentucky bluegrass residue is "solid waste"

within the meaning of RCRA.

evidence in the light most favorable to the nonmoving party, we

determine whether there are any genuine issues of material fact and

whether the district court correctly applied the relevant substantive

law. Navajo Nation v. Norris, 331 Fad 1041, 1044 (9th Cir.2003). We

do not weigh the evidence or determine the truth of the matter, but

re determine whether a genuine issue of material fact exists for

trial. |

Balint v. Carson City, 180 F.3d 1047, 1054 (9th Cir.1999) (en

banc).

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Faced with the duty to interpret this provision of

RCRA, we follow established principles of statutory

construction. "[C]anons of statutory construction help

ive meaning to a statute's words. We begin with the

anguage of the statute." The Wilderness Soc'y v. United

ish_& Wildlife Serv., 353 F.3d 1051, 1 9th

Cir.2003) (en banc) (internal citations omitted).

"{A]nother fundamental canon of construction provides

that unless otherwise defined, words will be interpreted

as taking their ordinary, contemporary, common

pean: Id. (internal quotation marks omitted). We

have also recently reiterated the principle that, "in

construing a statute, courts generally give words not

defined in a statute their 'ordinary or natural meaning.' "

Bonnich _ United State 7 FS 75 (9th

Cir.2004) gr United States v. Alvarez-Sanchez, 511

U.S. 350, br. 114 S.Ct. 1599, 128 L.Ed.2d 319 (1994)).

With these maxims in mind, we turn again to RCRA.

RCRA defines "solid waste" as "any garbage,

refuse, sludge from a waste treatment plant, water

supply treatment plant, or air pollution control 0 |

and other discarded material, including solid, a ,

semisolid, or contained gaseous material resulting from

industrial, commercial, mining, and agricultural

operations..." 42 U.S.C. § 690307) (emphasis added).

RCRA itself does not define the term "discarded

material." However, we note that the verb "discard" is

defined by dictionary and usage as to "cast aside; reject;

abandon; give up." 1 The New Shorter Oxford English

Dictionary 684 (4th ed.1993). We consider the term

"discard" in its ordinary meaning to decide whether Safe

Air presented a genuine issue of material fact

supporting its contention that the Kentucky bluegrass

residue burnt by the Growers is "solid waste" under

RCRA.

Our sister circuits have considered the scope of

RCRA's definition of "solid waste," and _ their

determinations are helpful to our analysis. The D.C.

Circuit assessed the scope of RCRA's definition of "solid

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waste" in American Mining Congress v. U.S. EPA, 824 F.2d

1177 (D.C.Cir.1987) (AMC I ). In AMC I, an industry

group of mining and oil refining companies challenged

an Environmental Protection Agency ("EPA") rule

amendment giving the EPA authority to regulate reused

materials in the petroleum and mining industries.

Noting that "EPA's jurisdiction is limited to those

materials that constitute 'solid waste,'" AMC I, 824 F.2d

at_1179, the D.C. Circuit held that "our analysis of

[RCRA] reveals clear Congressional intent to extend

EPA's authority only to materials that are truly

discarded, disposed of, thrown away, or abandoned."

Id. at 1190. It reasoned, persuasively to us, that

"[e]ncompassing materials retained for immediate reuse

within the scope of ‘discarded material’ strains ... the

everyday usage of that term."" Jd. at 1184. Significant

for our purposes, AMC I determined that materials have

not contributed to a waste disposal problem where "they

are destined for beneficial reuse or — in a continuous

rocess by the generating industry itself." Id. at 1186. The

.C. Circuit held that EPA contravened Congress's

intent b were! to regulate "in-process secondary

materials." Id. at 1193.°

5

The Second Circuit took a consistent approach, though

reaching a different result on the facts, in Connecticut Coastal

Fishermen's Assoc. v. Remington Arms Co., 989 F.2d 1305 (2d

Cir.1993). In Connecticut Coastal, the materials at issue were 2400

tons of lead shot and eleven million pounds of clay target fragments

located on land and waters surrounding a shooting club. The

materials had accumulated after seventy years of operation of the

shooting club. The court held, "[w]ithout deciding how long

materials must accumulate before they become discarded ... we

agree that the lead shot and clay — in Long Island Sound have

accumulated long enough to be considered solid waste." Id. at 1316

(emphasis added). Thus, the length of time the materials

accumulated was important to determining whether the materials

were solid waste.

® The D.C. Circuit revisited this issue in American Mining Cong.

v. U.S. EPA, 907 F.2d 1179 (D.C.Cir.1990) (AMC II ), when it held

that sludge from wastewater that may at some time in the future be

reclaimed constitutes "discarded" material under RCRA. Id. at 1186-

87. The court determined that "[nJothing in [AMC I] prevents [EPA]

from treating as 'discarded' the wastes at issue in this case, which

are managed in land disposal units that are part of wastewater

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The D.C. Circuit reached a similar conclusion in |

Association of Batte _U.S. EPA, 208 F.3d 1047

(D.C.Cir.2000). e issue in Battery Recyclers was

whether materials generated and reclaimed within the

mineral processing pony could be deemed "solid

waste" under RCRA, such that it could be regulated by

the EPA. The court held that “at least some of the

secondary material EPA seeks to regulate as solid waste

is destined for reuse as part of a continuous industrial

a and thus is not abandoned or thrown away." Id.

at 1056.

The Eleventh Circuit addressed a variation of this

issue in United States v. ILCO, 996 F.2d 1126 (11th

Cir.1993). In ILCO, a lead smelting company ("Interstate

Lead") producing ingots from lead plates of recycled

automobile batteries challenged EPA's regulation of the

plates.’ Interstate Lead argued that, because it had

never disposed of the lead plates, EPA could not

regulate the lead plates as "discarded material" under 42

U5.C._§ 6903(27) The Eleventh Circuit disagreed,

reasoning:

The lead plates and groups are, no doubt,

valuable feedstock for a smelting process.

Nevertheless, EPA, with congressional authority,

promulgated regulations that classify these

materials as 'discarded solid waste.' Somebody has

discarded the battery in which these components

are found. This fact does not change just because

a reclaimer has purchased or finds value in the

components.

treatment systems, which have therefore become ‘part of the waste

disposal problem,' and which are not part of ongoing industrial

processes." Id. at 1186.

7 EPA regulated these materials under RCRA's "hazardous

waste" subsection; however, as we have already discussed,

hazardous waste under RCRA is a subset of "solid waste," and the

ee of "solid waste" at issue in ILCO was the same as that

ore us.

Id. at 1131.8

Considering these extra-circuit cases to be

ersuasive in identifying relevant considerations

aring on whether grass residue is "solid waste" under

RCRA, we will also evaluate: (1) whether the material is

"destined for beneficial reuse or —— in a

continuous process by the generating industry itself,"

AMC I, 824 F.2d at 1186; (2) whether the materials are

being actively reused, or whether they merely have the

potential of being reused, AMC II, 907 F.2d at 1186; (3)

whether the materials are being reused by its original

owner, aS opposed to use by a salvager or reclaimer,

ILCO, 996 Edd at 1131.

We turn to the evidence submitted by the parties

to the district court. The Growers presented evidence

that they do not discard the grass residue, but rather

reuse grass residue in a continuous process of growing

Kentucky bluegrass. This reuse generates two primary

benefits to the Growers: returning nutrients to bluegrass

fields and facilitating the open burning process.

The Growers presented evidence at the

preliminary injunction oe: showing that grass

residue contains nutrients that are beneficial to

bluegrass fields when returned to soil. Dr. Glen Murray,

the Growers' expert on growing Kentucky blue-grass in

the northern Idaho area, testified that grass residue

contributes recycled nutrients and can act as a fertilizer

to bluegrass fields. Karl Felgenhauer, a Washington

bluegrass farmer, also testified that grass residue

8

We recognize that the issue of monetary value does not affect

the analysis oF shots materials are "solid waste" under RCRA. As

the Eleventh Circuit held in ILCO, the fact that discarded materials

are "solid waste" under RCRA does not change “just because a

reclaimer has purchased or finds value in the components."

Interstate Lead, 996 F.2d at 1131. However, in this case the Growers

do not base their argument on the assertion that grass residue has

monetary value to someone; rather, the Growers ay that grass

residue is not solid waste because they immediately reuse it to

further successful bluegrass harvests.

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contains such nutrients. Paul Stearns, another

Washington bluegrass farmer, testified that grass

residue remaining after a bluegrass harvest contains

potash and can act as a fertilizer.

The Growers also presented evidence that grass

residue is an integral component in the open burning

process because grass residue carries fire efficiently

across bluegrass fields. The grass residue's vital role in

the open burning process is significant because the

Growers submitted evidence establishing that open

burning has four critical benefits for Kentucky bluegrass

farmers.

First, several witnesses testified that open

burning extends the productive life of bluegrass fields.

Donal’ Jacklin, Safe Air's witness, testified that open

burning in some cases increases the life of bluegrass

fields up to twenty years. Asked about the value of

open burning to bluegrass production, Jacklin testified

that "nothing equals burning," and that open burning is

an agricultural practice incorporated into the

roduction, “ner and harvesting of bluegrass. Dr.

urray testified that a bluegrass field's seed production

can be maintained longer with open burning.

Felgenhauer, the Washington farmer, testified that he

experienced a significant decrease in the life of his

bluegrass fields after an open burning ban was

instituted in Washington state.

Second, several witnesses testified that open

burning restores beneficial minerals and fertilizers to

bluegrass fields. Dr. Paul Meints, one of Safe Air's

experts, testified that the value of burnt grass residue

ash to bluegrass fields is "[p]rimarily the restoration of

the phosphorus and potassium that is held within that

tissue," and that burnt grass residue ash left on soil is

beneficial to bluegrass fields because it provides

nutrients. Defendant Wayne Meyer, an Idaho bluegrass

farmer, testified that phosphorus and potash remain on

bluegrass fields as a result of the burning process, and

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that these elements act as a fertilizer to the fields.

Stearns testified that farmers who engage in open

burning need to purchase less supplemental potash

because open burning releases potash onto the bluegrass

field. Dr. Murray testified that nutrients are left in the

ash of burnt residue.

Third, the Growers presented evidence

suggesting that open field burning reduces or eliminates

insects on bluegrass fields, reducing the need for

pesticide use.’ Schultheis testified that he had to use

more pesticides, herbicides, and fungicides on his fields

after he stopped open burning, and that open burnin

also reduces wheat infestation.” Meyer also testifie

that open burning controls weeds, insects, and disease.

Finally, Paul Stearns testified that open burning

biackens the soil on bluegrass fields, which maximizes

the soil's sunlight absorption to increase the crop yield

for the following crop. Dr. Meints also testified that

blackened soil absorbs heat and sun rays. :

Safe Air does not contest that grass residue

provides benefits for the Growers, but argues that the

primary benefit to the Growers from open burning is

removal of grass residue, and that other benefits of grass

residue are incidental to the Growers' goal of removing

the residue. Safe Air argues that the two most important

benefits from open burning of grass residue, sunlight

absorption and enhancing productive life of bluegrass

fields, result from the removal of grass residue." As to

* The Idaho legislature has made a similar finding that "the

current knowledge and technology support the practice of burning

crop residue to control disease, weeds, pests, and to enhance crop

rotations." Idaho Code § 22-4801.

0 Wheat infestation tends to reduce the quality of a bluegrass

harvest.

"Safe Air, for example, presented testimony of Jacklin, a

bluegrass farmer, that "99.9%" of the reason why he engaged in

burning was for the "photo induction enhancement" of seed yield,

which he characterized as maximizing the sunlight exposure of new

bluegrass plant tissue.

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ee

the other benefits (i.e., the fertilizer in the ash and

reduced pesticide use), Safe Air argues that these are

"incidental benefits that do not change the nature of

what is transpiring from the discarding of waste."

However, even when we view the evidence in the

light most favorable to Safe Air, there is no dispute that

the Growers realize farming benefits from reusing grass

residue in the process of open burning. Safe Air a not

present testimony challenging the Growers' contentions

that: ) ass residue offers nutrients to bluegrass

fields; (2) Gurnt grass residue ash resulting from open

burning helps fertilize bluegrass fields; (3) open

burning reduces the incidence of weed, fungi, and insect

infestation in bluegrass fields; and (4) open burning

blackens bluegrass fields, which contributes to creatin

optimal conditions for the next bluegrass harvest. Safe

Air dismisses these indisputable benefits as "incidental,"

but our view is necessarily controlled by RCRA's

ve language suggesting that materials must be

"discarded" to be considered solid waste. Because there

is undisputed evidence that the Growers reuse the grass

residue in a continuous farming process effectively

designed to produce Kentucky bluegrass, there is no

genuine issue of material fact as to whether grass

residue is "discarded material." It is not. The bluegrass

residue is not discarded, abandoned, or given up, and it

does not qualify as "solid waste" under RCRA, based on

its apg definition of "solid waste" as "discarded

material."

Moreover, our evaluation of each of the factors

noted by our sister circuits in analogous cases, discussed

above, supports that grass residue beneficially reused by

the Growers in producing Kentucky bluegrass is not

‘For example, Dr. Meints testified that open burning doe; not

"necessarily" reduce the need for use of pesticides, herbicides, and

fungicides, although he conceded that he did not submit evidence

in the record to support that conclusion. Dr. Meints also testified

that much organic matter is burned during the open burning

ai and that any organic matter that remains after open

urning provides little benefit to soil.

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a 5

"solid waste" under RCRA. The Growers presented

uncontroverted evidence establishing that: (1) the grass

residue is destined for beneficial reuse in a continuous

process of growing and weerbiaggr; ery bluegrass

seeds, the generating industry, AMC I, 824 F.2d at 1186;

(2) the Growers reuse grass residue, inter alia, to provide

nutrients and to act as a fire accelerant for open burning,

as opposed to being kept in storage for potential reuse,

AMC II, 907 F.2d at 1186; and (3) the grass residue is

being reused OY farmers who are its original owners (the

Growers), not by a salvager or reclaimer. ILCO, 996 F.2d

at 1131. Under these standards, which we determine to

have persuasive application here, there is no genuine

issue of material fact as to whether grass residue is

"discarded."

RCRA's legislative history also reinforces our

conclusion that grass residue is not the type of material

that Congress intended to proscribe under RCRA. The

House Report reveals that RCRA was intended as "a

multi-faceted approach toward solving the problems

associated with the 3-4 billion tons of discarded

materials generated each year, and the problems

resulting from the anticipated 8% annual increase in the

volume of such waste." H.R.Rep. No. 94-1491, at 2

(1976), reprinted in 1976 US.C.C.A.N. 6238, 6239.

Congress was concerned with- waste products of all

types that were contributing to ever-increasing landfills:

In addressing this problem, the

Committee recognizes that Solid Waste,

the traditional term for trash or refuse is

inappropriate. The words solid waste

are laden with false connotations. They

are more narrow in meaning than the

Committee's concern. The words

discarded materials more accurately

reflect the Committee's interest.

Not only solid wastes, but also liquid and

contained gaseous wastes, semi-solid wastes and

Al16

sludges are the subjects of this legislation. Waste itself is

a misleading word in the context of the committee's

activity... An increase in reclamation and reuse practices

is a major objective of the Resource Conservation and

Recovery Act.

Id. at 2-3, reprinted in 1976 US.C.C.A.N. at 6239-41.

In enacting RCRA, Congress also declared that

agricultural products that could be recycled or reused as

fertilizers were not its concern. The same House Report

stated, "[m]uch industrial and agricultural waste is

reclaimed or put to new use and is therefore not a part

of the discarded materials disposal problem the

committee addresses.... Agricultural wastes which are

returned to the soil as fertilizers or soil conditioners are

not considered discarded materials in the sense of this

legislation." Id. at 3, reprinted in 1976 U.S.C.C.A.N. at

6239-41.

- The burning of bluegrass residue by farmers is ©

not the evil against which Congress took aim. To the

contrary, the bluegrass residue is the type of agricultural

remnant, used by farmers to add nutrients to soil, that

Congress did not consider to be "discarded." H.R.Rep.

No. 94-1491, at 3 (1976), reprinted in 1976 US.C.C.AN. at

6239-41 — industrial and agricultural waste is

reclaimed or put to new use and is therefore not a part

of the discarded materials disposal problem the

committee addresses.... Agricultural wastes which are

returned to the soil as fertilizers or soil conditions are

not considered discarded materials in the sense of this

legislation.").

Safe Air's response to RCRA's legislative history

is unpersuasive. Safe Air argues that because the House

Report states that "much industrial and b peer in

waste is reclaimed," "much" does not mean "all," and this

leaves open the possibility that posse residue is solid

waste. However, the possibility of such a distinction in

theory does not persuade us that there is a genuine issue

A17

of material fact as to whether blue-grass residue can

properly be considered "solid waste" within RCRA's

meaning.”

Given the uncontroverted evidence that the

Growers reuse the grass residue in a continuous process

for Kentucky bluegrass production, and do so in accord

with farming practices that are beneficial in increasing

crop yields, Safe Air has not demonstrated a genuine

issue of material fact on the issue whether grass residue

is a "solid waste" under RCRA."

‘8 Referring to the House Report's comment that "[a]gricultural

wastes which are returned to the soil as fertilizers or soil conditions

are not considered discarded materials in the sense of this

legislation," Safe Air argues that "[i]f the Growers mulched their

residue and returned it to the soil, this sentence might have

wren, But that is not what they do. They burn the

residue...." This argument has some weight but is not dispositive. It

is true that a part of the residue is returned to soil while a part that

is smoke is carried off by air. Yet, for materials to be solid waste

under RCRA, they must be "discarded." The determination of

whether grass residue has been "discarded" is made independently

of how the materials are handled. Despite the fact that a portion of

residue becomes airborne smoke, the residue is not thereby

automatically "discarded."

Z The dissent makes four arguments to which we respond

briefly.

First, the dissent argues that grass residue is "discarded

material" under a dictionary definition and maintains that is

dispositive. In our textual discussion we noted the dictionary

meaning of "discard" as "cast aside; reject; abandon; give up," and

we have fairly applied this definition. As we explain in our analysis,

we conclude that grass residue is not "solid waste" under RCRA.

Thus, while both this opinion and the dissent agree that we start

with the statute's language, in our view the dissent goes astray with

an incomplete analysis.

Second, the dissent contends that the out-of-circuit cases

that we cite are inapplicable because they involve EPA regulations

that have a narrower definition of "solid waste." This argument is

without merit. Because these cases involve challenges to EPA's

regulation of particular items, these cases necessarily address

whether those items were within RCRA's statutory definition of

"solid waste" as "discarded material," the same definition at issue

here. ILCO, 996 F.2d at 1132 (rejecting challenge to EPA regulation

because batteries were "discarded" under RCRA's general definition

A18

We discern from Congress's explicit language in

RCRA, focusing on discarded materials as a touchstone

for solid waste, and from Congress's stated purposes, no

Congressional declaration or intent to prohibit the

established farming practice of open burning of

Kentucky bluegrass residue. The benefits to the

Growers of this practice were established beyond

gry in the evidence presented to the district court.

Safe Air has not demonstrated that there is a genuine

issue of material fact as to whether grass residue is

"solid waste" under RCRA.“ On the undisputed

evidence, we conclude that Kentucky bluegrass residue

is not a "solid waste," and that RCRA does not prohibit

the Growers' general practice of open burning.”

of "solid waste"); AMC 1, 824 F.2d at 1185 ("The question we face ...

is whether ... Congress was using the term ‘discarded’ in its

ordinary sense...."); AMC IL 907 F.2d at 1186 ("Nothing in AMC

prevents [EPA] from treating as ‘discarded' the wastes at issue in

this case...."). These cases analyze the term "discarded," are

- persuasively contrary to the dissent's analysis, and are relevant to

the issue before us which has never been decided by our circuit.

Third, the dissent argues that our holding permits any

disposal —. as long as the waste residue is eventually returned

to soil. This is an incorrect overstatement. We only hold that, in

these circumstances of Kentucky bluegrass farming, grass residue

— used in the farming cycle is not "solid waste" under

RCRA.

Finally, the dissent urges that a genuine issue of material

fact exists as to the value of grass residue to the Growers. But as we

explain in our textual discussion, the Growers introduced

uncontested testimony, during an extensive evidentiary hearing in

the district court, that grass residue has benefits to the Growers.

The dissent does not point to any testimony contradicting this point

that the district court found uncontested. It is not enough for Safe

Air merely to.argue that the uncontested benefits are ancillary.

‘5 Having determined that grass residue is not "solid waste’

under RCRA, we need not address whether the Growers' handling

of the grass residue constitutes a "disposal," "treatment," or

"handling" of solid waste. Nor do we address whether the Growers’

practice of open burning constitutes an "imminent and substantial

endangerment" under R ;

© Of course, any burning of ae residue must comply with

both the federal Clean Air Act, 42 U.S.C. § 7470 et seq., and with

any applicable state regulation. As pertinent here, the lawsuit

A19

i i ii

AFFIRMED.

PAEZ, Circuit Judge, concurring in part,

dissenting in part:

I concur in Part II of the majority opinion, in

which the majority concluded that we should review the

district court's dismissal for lack of jurisdiction as a

— of summary judgment on the merits for the

rowers. I respectfully dissent, however, from Part III,

which holds that Safe Air has not demonstrated that the

hg om crop residue is a "solid waste" under

CRA. Because I disagree with the legal standard that

the majority applies to determine whether the post-

harvest crop residue has been "discarded," I would

conclude instead that the Growers have discarded the

aati pci crop residue within the meaning of RCRA.

ven if I were to agree with the majority's interpretation

of the RCRA statute, I would nonetheless hold that there

are genuine triable issues of fact. Accordingly, I would

a the district court's judgment and remand for

trial.

I.

Because RCRA does not define "discarded" we

look to the "ordinary, contemporary, common meaning"

before us on appeal makes no claim under the Clean Air Act, and

the record, so far as it addresses this issue, suggests that the

Growers have complied with air quality standards set by federal

and state regulators charged with enforcement of the Clean Air Act.

In addition, Idaho has not outlawed generally the practice of

burning Kentucky bluegrass residue, wal the Growers’ conduct is

not alleged to violate Idaho state regulation of open burning as it

affects air quality. See generally Idaho Code § 22-4801 (Michie 1995

& Supp.2002).

A20

of that term.' Wilderness Soc'y v. United States Fish &

Wildlife Serv., 353 F.3d 1051, 1080 th Cir.2003) (en banc)

(internal quotation marks omitted). Thus, our ultimate

task is to determine whether Safe Air has presented

evidence that, if accepted as true, creates a genuine issue

oe whether the Growers have "drop [ped],

,

dismiss[ed], let go, or glolt rid of as no longer useful,

valuable or pleasurable" the post-harvest crop residue.

Webster's Third New International Dictionary 644 (1993).

Considering the evidence presented to the district

court, I have little difficulty concluding that Safe Air has

emerges sufficient evidence to show that the post-

arvest crop residue was "discarded." In opposition to

the Growers' motion to dismiss and in support of its

motion for preliminary injunction, Safe Air presented

the district court with testimony and affidavits from its

members, individuals in the community and medical

and agricultural experts. In this testimonial and

documentary evidence, Safe Air established that it is

necessary to'remove the post-harvest residue in order to

maintain seed yields. Indeed, Safe Air contended that

"the primary purpose of burning the fields is to remove

- ives post-harvest crop residue from the bluegrass

ields."

In their motion to dismiss, the Growers did not

dispute Safe Air's assertion that the post-harvest cro

residue had to be removed from the fields. Althou

the Growers presented testimony and _ affidavits

contending that they did not intend to discard the

residue, they nonetheless admitted that the residue had

to be removed from the fields in order to maintain seed

production and to limit the insects and parasites that

would otherwise find food and shelter in the residue.’

1

As the majority recognizes, the question of whether the post-

harvest crop residue constitutes "solid waste" under RCRA depends

on the meaning of "otherwise discarded material." Thus, I primarily

focus here on the definition of "discarded material."

2 For example, Dr. Murray, an expert testifying on behalf of the

Growers, admitted during his testimony at the preliminary

injunction hearing that "the primary reason that Kentucky bluegrass

A21

Because there is no dispute that the Growers burn

the post-harvest crop residue to remove it from the

fields, and because this act of removal is within the plain

meaning of "discard," I would reverse the district court's

judgment and remand for further proceedings.’

Il.

It is well-established that "[w]here the plain

meaning of a provision is unambiguous that meaning is

controlling, except in the rare case [in which] the literal

application of a statute will produce a result

demonstrably at odds with the intentions of the

drafters." Coronado-Durazo v.

(9th Cir.1997) (internal quotation marks omitted). See

also United States v. Turkette, 452

legislative intent to the contrary, that lan . must

quoting

Inc.

plain meaning of "discard" to evaluate those "relevant

considerations," Maj. Op. at 1043, that it has gleaned

from extra-circuit cases discussing the meaning of

"discard" in distinctly different contexts. Because I do

farmers use fire is to remove the residue from the field." Similarly,

Mr. Jacklin, a bluegrass farmer testifying on behalf of Safe Air,

noted that "99.9 percent" of the reason for burning the fields is to

remove the post-harvest crop residue to ensure that the light

— for bluegrass seed production could reach the bluegrass

plants.

* Although there is no dispute that the post-harvest crop residue

has been discarded, I would not hold that Safe Air is entitled to

summary judgment in its favor because Safe Air must also prove

that the Growers' burning constitutes an "imminent and substantial

endangerment to the public health." 42 U.S.C. § 7002 et seq. The

district court did not address this issue and it should do so in the

first instance.

A22

not believe that there is any need to look beyond the

ordinary meaning of the term "discard" and the majority

has not offered any convincing rationale for its extended

analysis, I would only look to the ordinary meaning of

"discard," and would conclude, as explained above, that

the Growers discard the post-harvest crop residue.

Even if the majority could justify importin

"relevant considerations" in determining the meaning o

"discard," I would nonetheless reverse the district court's

judgment in this case. I disagree that the extra-circuit

cases--or indeed, the statute itself--support the majority's

conclusion that mere beneficial reuse means that a

substance has not been discarded under RCRA.

Moreover, even were I to accept the majority's

interpretation, I would conclude that a genuine issue of

material fact exists as to whether the post-harvest crop

residue is "destined for beneficial reuse in a continual

process." Maj. Op. at 1045.

A.

(quotation marks omitted) (analyzing statutory

provision of RCRA).

Far from revealing a "contrary" intent, the

1 gels history demonstrates that Congress intended

solid waste to include “any ... discarded material

resulting from ... agricultural operations..." 42 U.S.C. §

6903(27) (emphasis added).‘ The House Report indicates

* Indeed, where, as here, the statute is a remedial statute,

enacted to protect the public health, we are most likely to satisfy

A23

that Congress v jereney A defined "solid waste" to

include "discarded materials" to give RCRA a broader

reach. See H.R.Rep. No. 94-1491, pt. I, at 2, 9 (1976),

reprinted in 1976 USCCAN . 6238, 6240, 6246.°

The majority makes much of the fact that the

House Report excludes "[a]gricultural wastes which are

returned to the soil as fertilizers or soil conditioners...."

H.R.Rep. No. 94-1491, pt. I, at 2, reprinted in 1976

USCCAN. at 6239; but see 40 C.F.R. § 261.4(b)(2)

(indicating that residue from the "growing and

harvesting of agricultural crops" which "are returned to

the soils as fertilizers" are ifstolid wastes which are not

hazardous wastes."). But this statement does not

indicate that Congress intended to exclude from the

scope of RCRA agricultural waste that is first burned

before being used as fertilizer. According to the

majority's logic, any disposal process, no matter how

Congress's purposes by construing the statute broadly. See e.g.,

Hanford Downwinders Coalition, Inc. v. Dowdle, 71 F.3d 1469, 1481 (9th

Cir.1995) (noting that the Comprehensive Environmental Response,

Compensation and Liability Act was enacted to protect public

health and, should thus be construed broadly); United States v.

Aceto_Agr. Chem. Corp., 872 F.2d 1373, 1383 (8th Cir.1989)

(recognizing that RCRA is a remedial statute that should be

construed liberally).

> When RCRA was enacted, agricultural waste was the second

largest source of waste in this country, producing 687 million tons

per year. See H.R.Rep. No. 94-1491, pt. I, at 15, reprinted in 1976

US.C.C.A.N. at 6252-53. Congress enacted RCRA to regulate

disposal methods, including burning, that created health and safe

risks. See id. at 37-38, 90, reprinted in 1976 U.S.C.C.A.N. at 6275-77,

6325-26. Construing "solid waste" to include the post-harvest crop

residue at issue here furthers Congress's intent to regulate the

disposal of waste that could endanger public health.

* Although the majority states that "the determination of

whether [the post-harvest crop] residue has been ‘discarded’ is

made independently of how the materials are handled," the majority

ignores the fact that the question of whether the post-harvest crop

residue is "solid waste" is inextricable from the question of how

those materials are handled. See 42 U.S.C. § 6903(27). Thus, the fact

that the residue is burned, rather than mulched and returned to the

soil, is relevant to whether the residue constitutes "solid waste"

under RCRA.

A24

environmentally unsound, would be exempted from the

reach of RCRA as long as the waste residue was

eventually returned to the soil. This could not have

been Congress' intent, especially since Congress

expressed a special concern with waste that was burned.

See H.R.Rep. No. 94-1491, pt. I, at 37-38, 90, reprinted in

1976 U.S.C.C.A.N. at 6275-77, 6325-26; see also id. at 17-

24, reprinted in 1976 U.S.C.C.A.N. at 6254-62 (listing

improper disposal practices that resulted in harmful air

e lution). " Am. Mining Cong. v. U.S. EPA, 907 F.2d

179, 1187 (D.C.Cir.1990) (AMC II ) (concluding that,

where the disposal or treatment process posed a danger

to the public health, the material disposed of should

considered "discarded").

No statutory declaration or other Congressional

statement of intent suggests that post-harvest residue

that is burned should’ be excluded from RCRA's

definition of "solid waste." Rather, the House Report

reflects that RCRA specifically applies to disposal

practices that result in air pollution: |

The Committee believes that the approach taken

by this legislation eliminates the last remaining loop-

hole in environmental law, that of unregulated land

disposal of discarded materials and hazardous wastes.

Further, the Committee believes that this legislation is

necessary if other environmental laws are to be both cost

and environmentally effective. At present the federal

government is spending billions of dollars to remove

pollutatns [sic] from the air and water, only to dispose of

such pollutants on the land in an environmentally

unsound manner. The existing methods of land

disposal often result in air pollution, subsurface leachate

and surface run-off, which affect air and water quality.

This legislation will eliminate this problem and permit

the environmental laws to function in a coordinated and

effective way.

HR Rep. No. 94-1491, Part L, at 4 (1976), reprinted

in 1976 U.S.C.C.A.N. at 6241-42. Where, as here, the

A25

residue is discarded and burned, the legislative history

indicates that the disposal of such material is within the

meaning of "solid waste" under RCRA.

B.

The majority also relies on extra-circuit cases to

support its conclusion that the post-harvest crop residue

is not "discarded." These cases, however, are

inapplicable to the interpretation of "solid waste" at

issue here. Most rotably, those cases interpret the

meaning of "solid waste" in considering the validity of

hazardous waste regulations promulgated - the

Environmental Protection Agency "EPA? See AMC I

824 F.2d at 1178 (considering whether the EPA exceeded

its — authority by including "in process

secondary materials" in its definition of solid waste);

American Mining Cong. v. U.S. EPA, 907 F.2d 1179, 1181-

82 (D.C.Cir.1990) (AMC II ) (considering whether the

EPA exceeded its regulatory authority in treating six

wastes generated from metal smelting operations as

"hazardous" waste); United States v. ILCO, Inc., 996 F.2d

1126, 1130 (11th Cir.1993) (considering whether "lead

parts, which have been reclairned from spent car and

truck batteries for recycling purposes, are exempt

from[the EPA's] regulation under RCRA")

Although RCRA defines "solid waste" to cover all

ype of "discarded materials," see 42 U.S.C. § 6903(27),

the EPA's RCRA regulations at issue in AMC I, AMC II

and ILCO have a special definition of "solid waste," see

7

Under RCRA, a "solid" waste is "any garbage, refuse, sludge

from a waste treatment plant, water supply treatment plant, or air

pollution control facility and other discarded material..." 42 U.S.C. §

6903(27). A "hazardous" waste, however, is a subset of "solid" waste

which may "(A) cause, or significantly contribute to an increase in

mortality or an increase in serious irreversible, or incapacitatin

reversible, illness; or (B) pose a substantial present or potentia

hazard to human health or the environment when improperly

treated, stored, t.ansported, or disposed of, or otherwise managed."

42 U.S.C. § 6903(5).

A26

40 C.F.R. § 261.2(a)(1), which "applies only to wastes

that also are hazardous for purposes of the regulations

implementing Subtitle C of RCRA." 40 CFR. §

261.1(b)(1).* Thus, the regulatory definition considered

in AMC I AMC II and ILCO is significantly narrower

than the statutory definition at issue here. Accordingly,

I do not find these cases persuasive in our determination

of whether the post-harvest crop residue has been

"discarded."

en

Even if I were to agree with the majority's

conclusion that the extra-circuit cases constitute

persuasive authority, Maj. Op. at 1043, I would

nonetheless conclude that there is a genuine factual

dispute as to whether the post-harvest crop residue has

been discarded. I would thanatise reverse the summary

judgment in favor of the Growers.

Relying on the analysis in AMC I, AMC II and

ILCO, the majority reasons that as long as the residue

"provides benefits for the Growers," Maj. Op. at 1044, it

has not been "discarded" under RCRA. This

unnecessarily narrows the definition of "discarded

material."

The cases do not support the majority's

proposition that the mere recognition of some beneficial

use negates the fact that materials have been "discarded"

under RCRA. The cases cited by the majority distinguish

between those materials extracted and immediatel

reused in an ongoing process and those materials

discarded and only later put to beneficial use. AMC I

* Subtitle C of RCRA, 42 U.S.C. § § 6921-6939, requires the EPA

to create a comprehensive regulatory scheme for the treatment,

storage and disposal of hazardous wastes. Under this section, the

EPA must "develop and promulgate criteria for identifying the

characteristics of [those] 'solid' wastes that are also ‘'hazardous'

wastes." 42 U.S.C. § 6921(a), (b).

A27

= —s 7

merely held that materials extracted from primary

metals that are recaptured and recycled as part of an

ongoing industrial process are not ‘solid waste" under

the EPA's regulatory definition of that term. That same

court later clarified that AMC I 's "holding concerned

only materials that are-'destined for immediate reuse in

another phase of the industry's ongoing production

ng ped " AMC II, 907 F.2d at 1186 (quoting AMC I

24 F.2d at 1185) (emphasis in original). e D.C.

Circuit also rejected the claim that "potential reuse of a

material prevents the [EPA] from classifying it as

'discarded.'" Id.; see also ILCO, 996 F.2d at 1132 (noting

that "[p]reviously discarded solid waste, although it may

at some point be recycled, nonetheless remains solid

waste"); Am. Petroleum Inst. v. U.S. EPA, 906 F.2d 729

741 (D.C.Cir.1990) (holding that slag residue resulting

from the production of steel was "discarded" even

though zinc would later be recovered from the slag at a

reclamation facility.).

Thus, even following the majority's analysis and

drawing on the principles from the above cases, it still

must be shown that the residue is "destined for

immediate reuse in another phase of the industry's

ongoing production process." AMC II, 907 F.2d at 1186

(emphasis in original). Relevant considerations may

include such questions as the intent of the Growers in

using the materials and the purpose of removing the

residue, see No Spray Coalition, Inc. v. City of New York,

252 F.3d 148 (2d _ Cir.2001) os are not

"discarded" within the meaning of RCRA when they are

sprayed into the air with the design of effecting their

intended purpose of killing mosquitoes and _ their

larvae); Water Keeper Alliance v. United States Dep't of

Defense, 152 F.Supp.2d 163, 167-69 (D.P.R.) (holding that

ordinances were not "discarded material" under RCRA

as soon as they made contact with the land because, at

that moment, at least, they were still serving their

intended purpose), aff'd 271 F.3d 21 (1st Cir.2001;; and

the specific mechanics of the process, including, for

example, the length of time the post-harvest crop

A28

residue was left on the fields before the Growers burned

it, see Conn. Coastal Fishermen's Ass'n. v. Remington Arms

Co., 989 F.2d 1305, 1316 (2d Cir.1993) (lead and clay

shots were discarded because they had been "left to

accumulate long after they[had] served their intended

purpose").

Safe Air contends that the Growers' primary

purpose in burning the residue is to remove it--that is,

burning blue-grass residue is primarily an inexpensive

waste disposal practice." On the other hand, the

Growers argue that they consider the post-harvest crop

residue "important and valuable materials used in the

agricultural process." There are thus decidedly different

accounts of whether and how the post-harvest crop

residue factors into the continuing growth process for

Kentucky bluegrass.’ Even if I were to agree with the

% The majority notes that Safe Air does not dispute that the post-

harvest crop residue provides some benefits to the Growers. But,

under the majority's approach, this is not the question that must be

resolved in termining whether the residue has been "discarded."

Rather, the ..ey inquiry is whether the Growers reuse the post-

harvest crop residue in a continuous process of producing seed.

Although the majority states that the Growers produced

"uncontroverted evidence that [they] reuse the [post-harvest crop]

residue in a continuous process," Maj. Op. at 1046, Safe Air in fact

vigorously contested this assertion. For example, Dr. Meints, an

expert for Safe Air, submitted a declaration stating that fire is not

necessary to produce bluegrass seed:

The primary purpose of burning bluegrass straw is to

remove the excess post-harvest crop residue from bluegrass fields.

Fire is not necessary to physiologically shock or stimulate bluegrass

to produce seed or increase ield. Fire is an inexpensive way

for the [G]rowers to remove post-harvest crop residue from the field

and remove grass straw from the crown of the plant.... Farmers in

Washington flor example] have successfully grown and harvested

bluegrass seed on tens of thousands of acres without open field

burning.

Similarly, Art Krenzel, another expert for Safe Air,

submitted a declaration explaining that fire is not necessary to

produce bluegrass seed:

For years, it was an unchallenged tenet in the Kentucky

bluegrass industry that fire is necessary tc physiologically shock or

stimulate the bluegrass plant to produce seed or maintain seed

A29

majority's a eg I would reverse the district court's

judgment in favor of the Growers because there exists a

enuine dispute as to material facts. See, e.g., United

States v. City of Tacoma, 332 F.3d 574, 578 (9th Cir.2003)

(noting that summary judgment is not proper if there is

a genuine dispute as to any material fact).

III.

Because I would remand for further proceedings,

I briefly address the question the majority has not

decided: whether the burning of the post-harvest crop

residue constitutes "the past or present handling,

storage, treatment, transportation, or disposal of any

solid or hazardous waste which may present an

imminent and substantial endangerment to health or the

environment...." 42 U.S.C. § 6972(a)(1)(B).

"Disposal" is defined in RCRA to include the

"deposit ... or placing of solid waste ... into or on any

land ... so that such solid waste ... or any constituent

thereof may enter the environment or be emitted into

the air...." 42 U.S.C. § ents) (1995). Here, the burning

of the post-harvest crop residue clearly results in smoke

and emits particles into the air, and such emissions only

occur as a result of the Growers' actions--that is, by

setting fire to the fields. Thus, I would hold that the

burning of the post-harvest crop residue constitutes

"disposal" of that waste under RCRA.

In the alternative, I also would hold that burning

the fields to remove the post-harvest crop residue

constitutes "treatment" or "handling" of solid waste

Fra Both [uJniversity and private research in Kentucky

luegrass seed production have soundly proved this concept is

incorrect, repeatedly.... Bluegrass farmers use fire to remove the

ass straw because it is a cheap way to dispose of unwanted

luegrass crop residue so that the plants will receive sufficient

sunlight, moisture, and space to produce a good seed crop the

following year.

A30

under § 697 ela) (8). RCRA does not define

"treatment" or "handling" in the context of solid waste,

and thus, once again, I Iook to the ordinary meaning of

these terms.” See Wilderness Soc'y, 353 F.3d at 1060. The

ordinary meaning of "treatment" is "the action or

manner of treating;" "treat" is further defined as "to

handle, manage, or otherwise deal with ... to subject to

some action (as of a chemical reagent) ... to subject (as a

natural or manufactured article) to some process to

improve the appearance, taste usefulness, or some other

uality.". Webster's Third New International Dictionary

434-5 (1993). Thus, even if the Growers burned the

waste solely to improve its usefulness--such as

converting it into fertilizer-their actions would still

constitute "treatment" of that waste.

Similarly, the burning of the post-harvest crop

residue constitutes "handling" of that waste. The

ordinary meaning of "handle" is: "to deal with; act

upon; dispose of; perform some function with regard

to." Id. at 1027. Again, the Growers' burning of the post-

harvest crop residue fits within this definition.

The definitions of these terms--"solid waste,"

"disposal," "treatment," and "handling"--together with

the undisputed facts regarding the need to remove the

post-harvest crop residue, make it apparent that RCRA

applies to the burning of the post-harvest crop residue.

Accordingly, I would hold that the Growers' practice of

burning the post-harvest crop residue after the bluegrass

harvest constitutes "handling" or "treatment" of "solid

waste" within the meaning of § 6272(a) (1B). For all the

reasons above, I would reverse the district court's

judgment in favor of the Growers and remand for trial.

10 RCRA does define "treatment" in the context of 42 U.S.C. §

6928(d)(2)(A), which refers specifically to the "treatment, storage or

disposal of" hazardous waste: "The term ‘treatment’ ... means any

method ... designed to change ... the character or composition of any

hazardous waste ... so as to render such waste nonhazardous, safer

for transport, amenable for pee amenable for storage or

3

reduced in volume." 42 U.S.C. § 6903(34).

A31

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

SAFE AIR FOR EVERYONE

WAYNE MEYER, et al.,

Case No. CV-02-241-N-EJL

ORDER

Pending before the Court in the above-entitled

matter is the Plaintiffs’ motion for preliminary

injunction.’ Plaintiffs seek an injunction restricting the

Defendants’ from burning residue on their fields during

the upcoming “burn season.”” Plaintiffs’ complaint also

raises a federal nuisance claim. Defendants opposed the

motion on several grounds and have filed a motion to

dismiss, which is also pending before the Court.

" The Plaintiffs are an organized group of approximately

1,000 citizens in northern Idaho, Washington, and

Montana collectively known as Safe Air For Everyone

(hereinafter “SAFE”).

* The Defendants are a group of seventy-five named

individuals who raise Kentucky Bluegrass on the

Rathdrum Prairie and/or the Coeur d'Alene Tribal

Reservation; both areas in northern Idaho. Applicable to

the motion for preliminary injunction are forty-seven of

these Defendants whe ten been titled “Class A”

Defendants.

A32

Defendants’ motion to dismiss asserts the Plaintiffs have

failed to state a cause of action upon which relief can be

granted and that this Court lacks subject matter

jurisdiction over the Plaintiffs’ nuisance claim. The

matter has been fully briefed and heard by the Court

and is now ripe for consideration.

Applicable Standards

The traditional equitable criteria for grantin

preliminary injunctive relief are (1) a strong likelihoo

of success on the merits, (2) the possibility of irreparable

injury to plaintiff if the preliminary relief is not:granted,

3) a balance of hardships favoring the plaintiff, and

4) advancement of the public interest (in certain cases).

Dollar Rent a Car v. Travelers Indem., 774 F.2d 1371,

1374 (9th Cir. 1985) (citation omitted). More recently,

the Ninth Circuit has developed an alternative test for —

granting a preliminary injunction which requires the

court to balance the movant’s likelihood of success on

the merits against the relative hardship to the parties.

See Walczak v. EPL Prolong, Inc., 198 F.3d 725, 731 (9th

Cir. 1999); Sun Microsystems, Inc. v. Microsoft Corp.

188 F.3d 1115, 1118 (9th Cir. 1999). Thus, in this circuit a

party may meet its burden by demonstrating either (1) a

combination of probable success on the merits and the

possibility of irreparable inj or (2) that serious

uestions are raised and the balance of the hardships

tips in its favor. Textile Unlimited, Inc. v. BMH Co. Inc.,

240 F.3d 781 (9th Cir. 2001); see also Tillamook

County v. United States Army Corps of Engineers, 288

F.3d 1140, 1142 (9th Cir. 2002). These two formulations

represent two points on a sliding scale in which the

required degree of irreparable harm increases as the

probability of success decreases. Id. Regardless of the

criteria employed, whenever the public interest is

involved, it must be a necessary factor in the Court's

consideration of whether to grant preliminary injunctive

relief. Caribbean Marine Services Co. v. Baldrige, 844

F.2d 668, 674 (9th Cir. 1988).

A33

A motion to dismiss should he granted where the

plaintiff fails to state a claim upon which relief may be

anted. Fed. R. Civ. P.12. “A complaint should not be

ismissed unless it appears beyond doubt that plaintiff

can prove no set of facts in support of his claim which.

would entitle him to relief.” Van Buskirk v. Cable News

Network, Inc. 284 F.3d 977 (9th Cir. 2002) (citing

Raban v. INS, 35 F.3d 1449, 1451 (9th Cir. 1994) (citin

Buckey v. County of Los Angeles, 968 F.2d 791, 793-9

(9th Cir. 1992)). “All allegations of material fact are

taken as true and construed in the light most favorable

to the nonmoving party.” American Family Ass’n,

Inc. v. City and County of San Francisco, 277 F.3d 1114

(9th Cir. 2002) (citing Burgert v. Lokelani Bernice Pauahi

Bishop Trust, 200 F.3d 661, 663 (9th Cir. 2000)).

Analysis

Plaintiffs’ complaint and motion for preliminary

injunction have been brought before this Court based

upon a federal statute, the Resource Conservation and

Recovery Act (hereinafter “RCRA”), 42 U.S.C. § 6901 et

seq. Plaintiffs assert jurisdiction is Sne under RCRA

pursuant to 42 U.S.C. § 6972(a) because an

endangerment to public health has occurred and will

reoccur within the District of Idaho. (Docket No. 1, p. 3).

Based on the following the Court finds it is without

— jurisdiction in this matter and, therefore,

efendants’ motion to dismiss should be granted and

the case dismissed in its entirety. Accordingly, the

Court will not address the motion for preliminary

injunction because the Court’s ruling on the motion to

dismiss renders the same moot.

A34

1) RCRA Claim:

RCRA governs the handling of both hazardous

and nonhazardous solid wastes. Ashoff v. City of

Ukiah, 130 F.3d 409, 410 (9th Cir. 1997). Citizens are

allowed to initiate a lawsuit to enforce the requirements

of RCRA in certain situations. 42 U.S.C. § 6972. Since

there has been no evidence of a violation in this case, the

only applicable provision allowing for a “citizen suit”

which Plaintiffs may invoke is § 6972(a)(1)(B) which

states:

[any person may commence a civil action

on his own behalf] against any person,

including the United States and any other

governmental instrumentality or agency,

to the extent permitted by the eleventh

amendment to the Constitution, and

including any past or present generator,

past or present transporter, or past or

present owner or operator of a treatment,

storage, or disposal facility, who has

contributed or who is contributing to the

past or present handling, storage,

treatment, transportation, or disposal of

any solid or hazardous waste which may

present an imminent _and_ substantial

endangerment _to health or the

environme nt;

(emphasis added). Plaintiffs assert the burning of

Kentucky Bluegrass field residue is a disposal of solid

waste presenting an imminent and_ substantial

endangerment to health or the environment.

Defendants contend the burning is neither a “disposal”

nor a “solid waste” and, therefore, RCRA does not

apply. Plaintiffs argue the determination of whether the

burning in this case is a “disposal” or a “solid waste” is

a factual determination that is not proper for the Court

to make at this time. The Court respectfully disagrees.

A35

In order to ascertain whether jurisdiction is

proper, the Court must interpret the statute in order to

determine its applicability to the issues presented in this

matter. Interpretation of a statute to determine its

applicability to a lawsuit and whether a court ses

3d 1231 = a 5002) p law. In re Cardelucci, 285

3d 1231 ir. citing In re Celebrity Home

Entertainment, Inc., 210 F.3d 985, 997 (9th Cir. 2000)).

The existence of subject matter jurisdiction is a question

of law. Uni v. l ati

Inc. 287 F.3d 832 (9th Cir. 2002) Tok. iat den_v.

1

Roadway Package Sys., Inc., 249 F.3d 1137, 9th Cir.

2001)).

Statutory interpretation begins with the language

of the enna.” hil i ‘s H wo H ay

Belshe, 188 F.3d 1090 (9th Cir. regia United

States v. Ron Enters., Inc., 489 U.S. , 241 (1989)).

When the plain meaning of a statutory provision is

unambiguous, that meaning is controlling. Id.; see also

United Grates v. Partlow, 159 R3d 1218, 1219 (9th Cir.

1998). To determine the plain meaning of a statutory

provision, the Court must examine not only the specific

provision at issue, but also the structure of the statute as

a whole, including its object and policy. Id. (citing

Green v. Commissioner, 707 F.2d 404, 405 (9th Cir. 1983).

If ambiguity exists, the Court may use legislative history

as an aid to interpretation. Id. (citing Green 707 F.2d at

405; Mount Graham Red Squirrel v. Madigan, 954 F.2d

1441, 1453 (9th Cir. 1992)).

When Congress enacted the RCRA and _ its

subsequent amendments, it created a complex response

to the problems involved in safel porn solid

waste. Greenpeace, Inc. v. Waste Technologies

Industries, 9 F.3d 1174 (6th Cir. 1993). When confronted

with such a complex statutory scheme, a court cannot

discern congressional intent by reading an isolated

subsection such as § 6972(a)()(8) without reference to

other related provisions. Id. e court “must interpret

the statute as a whole, making every effort not to

A36

interpret a — in a manner that renders other

provisions of the same statute inconsistent, meaningless,

or superfluous.” Id. at 1179 citing Lake Cumberland

T Inc. v. Unit nm Pr

Agency, 954 F.2d 1218, 1222 (6th Cir. 1992) (citing Boise

ascade Corp. v. ni ta Envir ntal

Protection Agency, 942 F.2d 1427, 1432 (9th Cir. 1991)).

a) “Disposal” and “Solid Waste”:

At issue in this case are the meanings of

“disposal” and “solid waste” as contemplated by

Congress in promulgating RCRA. In considering the

text of the statute as a whole, the Court finds the

language in RCRA is unambiguous. See American

Mining Congress v. United States E.P.A., 824 F.2d 1177,

1190 (D.C. Cir. 1987) (the statutory language of RCRA is

unambiguous). Therefore, the plain meaning of the

terms viewed in light of the statute as a whole controls

the Court's interpretation of RCRA. See Greenpeace,

Inc., 9 F.3d at 1179,

The terms “disposal” and “solid waste” are

defined in RCRA, US.C. § 6903(3) and (27).

“Disposal” is defined as “the discharge, deposit,

injection, dumping, spilling, leaking, or placing of any

solid liquid waste or hazardous waste into or on any

land or water so that such solid waste or hazardous

waste or any constituent thereof may enter the

environment or be emitted into the air or discharged

into any waters, including ground waters.” 42 U.S.C.

§ 6903(3). “Solid waste” is defined as “an garbage,

refuse, — . . . and other discarded material,

including solid, liquid, semisolid, or contained gaseous

material resulting from industrial, commercial, minin

and agricultural operations... .” 42 U.S.C. § £908(27.

These definitions are broad and me encompass a wide

range of activities and materials. However, in viewing

these definitions in the context of the entire statutory

scheme of RCRA, it becomes clear that the burning of

the residue in this case was not meant to fall within the

definitions of “disposal” or “solid waste.”

The burning is not a “disposal.” RCRA was

promulgated to “reduce the amount of waste and

unsalvageable materials and to provide for proper and

economical solid waste disposal practices.” 42 U.S.C.

§ 6901(a)(4). In addressing the problem of amassing

amounts of solid waste, Congress sought to protect the

public health and the environment and to conserve

valuable materials and energy resources. 42 U.S.C.

§ 6902(a). The burning of the residue by the farmers in

this case is not the kind of “disposal” RCRA was created

to remedy. Even if the burning were considered a

“disposal,” the Plaintiffs’ complaint does not seek a

remedy as to the act of burning itself. Instead, Plaintiffs

seek relief from the smoke created from the burning.

This type of relief, by its very nature, invokes concerns

under the Clean Air Act (hereinafter “CAA”) which was

Hy ated specifically to address air quality concerns.

See 42 U.S .C. § 7400 et seq. RCRA, on the other hand,

was establistied to remedy the problems surrounding

the increasing amounts of solid waste by regulating

methods for disposal of the waste.

The crux of this case turns on whether the residue

is a “solid waste.” The evidence presented in this case

establishes that residue is not a “solid waste” as

contemplated by RCRA. In applying the plain meaning

of the terms used by RCRA in defining “solid waste” as

“discarded material,” it is clear that “solid waste”

contemplates materials to which the owner or producer

no longer attaches value or maintains an interest in

ossessing. See American Mining, 824 F.2d at 1185

tholding that in defining the term “solid waste,”

“Congress used the term ‘discarded’ in its ordin

sense -- ‘disposed of’ or ‘abandoned.’”). While there is a

dispute in the cog concerning the purpose and/or

benefits of burning, there was no disagreement that

burning the residue serves legitimate purposes beyond

mere removal of the residue and, therefore, the residue

is extremely valuable to the farmers. Thus, the burning

A38

of the residue is not an abandonment or discarding of

the material but, instead, an important part of the

owth process).. These farmers, who have raised

entucky Bluegrass for many years, testified that the

benefits of burning beyond removal of the residue

include: the pot ash left on the field after a burn that

contains minerals which, without burning, the farmer

would have to replace in the soil by using fertilizers or

soil conditioners; an increasing photo-enhancement

period; fewer diseases and weeds and, thus, fewer

pesticides are required on burned fields; and longer cro

rotations (i.e. 8 to 10 years as opposed to 3 to years.

Plaintiffs contend the residue is a “solid waste” because

the farmers’ purpose in burning the residue is to remove

it from the fields and, therefore, it is a “discarded

material.” Plaintiffs point to Washington farmers who

continue to raise the crop without burning and assert

that any benefits of burning are “incidental” to the

farmers primary pores for burning-residue removal.

At the hearing, Plaintiffs’ scientific expert, Dr. Paul

Meints, disputed the value and extent to which the

benefits of burning asserted by the farmers truly exist.

The Idaho legislature, however, has corroborated the

Defendants’ statements regarding the benefits to

burning. Idaho Code § 22-4801 states that “[t]he

legislature finds that the current knowledge and

technology support the practice of burning crop residue

to control disease, weeds, pests, and to enhance crop

rotations.”

Based on the foregoing and viewing the text of

the statute as a whole, the Court finds the burning of the

residue is not a “disposal” and, further, the residue is

not a “solid waste” because it is neither discarded or

abandoned but, instead, used as a part of the growth

process. Therefore, RCRA does not apply.

* These witnesses include Mr. Arthur Schultheis, Mr. Carl

Felgenhauer, Mr. Paul Stearns, and Mr. Wayne Meyer. See

Hearing Transcript.

A39

b) Legislative History & Code of Federal

Regulations:

Although the Court finds the language of RCRA

is unambiguous, the Court notes that the legislative

history and the Code of Federal Regulations are

consistent with the Court's interpretation of the text of

the statute. The legislative history reaffirms that RCRA

was established to manage the huge volume of solid

waste in this country. H.R. Rep. No. 94-1491, at 2 (1976),

poy in 1976 U.S.C.C.A.N. 6238, 6239 (The purpose

of the legislation is to create a “multifaceted approach

toward solving the problems associated with the 3-4

billion tons of discarded materials generated each

a cre cer the legislative history the

committee discusses the problems associated with land

disposal of discarded material. More importantly, in

defining “solid waste” and “discarded material” the

committee stated that “agricultural waste is reclaimed or

put to new use and is therefore not a part of the

discarded materials disposal problem the committee

addresses. An increase in reclamation and reuse

ractices is a major objective of the [RCRA].” Id. at 2,

S.C.C.A.N. at 6240. The committee further identified

that “the term discarded materials is used to identify

collectively those substances often referred to as

industrial, municipal or post-consumer waste; refuse

trash, garbage and sludge . . . [a]gricultural wastes

which are returned to the soil as fertilizers or soil

conditioners are not considered discarded materials in

the sense of this litigation.” Id. Thus, the legislative

history supports the Court’s conclusion that the burnin

of Kentucky Bluegrass residue is neither a “solid waste

nor “discarded material” within the guise of RCRA.

The Code of Federal Regulations is also instructive as to

the term “discarded” as applied to “solid waste.” The

Code defines “discarded material” as “any material

which is,” among other things, “abandoned.” 40 C.F.R.

§ 261.2(a)(2)(l); see also Zands v. Nelson, 779 F. Supp.

1254, 1262 (S.D. Cal. 1991). The regulations further

A40

EE Ee a

provide that materials constitute “solid waste” if they

are abandoned by virtue of being “ [d]isposed of.” See

40 C.E.R. § 261.2(b)(1). The court in Zands, ultimately

defined solid waste as “any discarded material,” but

noted that even this broad definition does not include

materials that are still useful products or material

retained for immediate reuse. Id. at 1262.

c) State Legislature’s Policy:

Plaintiffs offered substantial evidence regarding

the decision by the state of Washington legislature

extayiening a policy which bans the burning of

Kentucky Bluegrass residue except in extreme cases."

While this evidence is relevant to the balancing of the

competing interests in this case, it does not establish that

RCRA applies to the facts in this case. Further, the fact

that the policies of Washington and Idaho are

inconsistent does not give this Court jurisdiction upon

which to decide this matter.’ The evidence does,

however, highlight the fact that the Idaho state

legislature has established a policy opposite of

ashington and determined that agriculture burning is

an important state interest and that burning is an

“essential tool” to farming that will continue to used

4 In the summer of 1995 the state of Washington began

investigating possible alternatives to burning Kentucky

Bluegrass. in the spring of 1996 — the ee of

1998, Washington’s Department of Ecology established

new regulations banning burning, except in certain cases,

and certifying alternatives to burning.

5 In the context of the nuisance claim Plaintiffs contend

they are without a state remedy and this matter is more

appropriately decided with federal law because the affects

of the smoke cross state lines. However, this is not the

pe of interstate dispute requirin federal intervention

into state law matters. See National Audubon Society, et

al. v. Department of Water, et al., 869 F.2d 1196 (9th Cir.

1988).

A41

in the state of Idaho. Idaho Code § 22-4801 and IDAPA

02.06.16.012.

Based on these findings, the state of Idaho set

regulations that “will allow Idaho farmers to maintain

the essential tool of fire, while minimizing the impact on

the citizens of Idaho of smoke generated y crop residue

burning.” IDAPA 02.06.16.012. Specifically, the state of

Idaho’s Department of Agriculture and Department of

Environmental Quality oe established a smoke

management policy to effectuate the legislative intent.

See Idaho Code § 22-4803. Further, the Idaho legislature

still requires the enforcement of the state's

environmental protection and health act (Idaho Code,

Title 39, Chapter 1) and the rules therein as they relate to

air quality and the state and national ambient air quality

standards, Idaho Code § 22-4801.

Thus, the legislature of the state of Idaho has

balanced the competing interests on the issues now

raised in this Court and determined the that crop

residue burning is an important agricultural interest that

will continue in the state of idaho. Plaintiffs invite the

Court to be pro-active and establish the legislature’s

policy for the state of Idaho. The Court respectfully

declines to do so. The remedy, if any, lies with Connon

or the state legislature - not the courts.

d) Remedy:

Congress has established methods of enforcement

for the protection o f the public health both in RCRA and

the CAA. The remedy ~~ by the Plaintitfs, however,

is more ap ropriately sought under the provisions of the

CAA and/or may very well require a change in polic

by the legislative branch of government. See 42 sc

§ 7470. The Court recognizes the limited nature of

raising a citizen suit pursuant to CAA but Congress, not

the courts, has delineated a statutory framework within

which Plaintiffs must operate. See 42 U.S.C. § 7604(a)

(citizen suits allowed to bring suit for violations of

A42

standards or failure to obtain a permit); see also 42

U.S.C. § 7604(a)(2) (allowing citizen suits against the

Administrator for allegedly failing to perform any

nondiscrctionary act or duty). The evidence here clearly

establishes that the national ambient air quality

standards have not been violated by the burning of grass

residue in previous years and so Plaintiffs may be

unable to bring a suit under the CAA and, it appears,

the EPA has not acted arbitrarily in declining to do so.°

Plaintiffs argue RCRA and the CAA can be

reconciled and that to permit citizens suits on matters

involving air pollution is not in derogation of an area

specifically reserved by Congress to the EPA. The Court

respectfully disagrees. While it is true that the Ninth

Circuit has not determined that Congress has preempted

this field, this does not resolve the fact that RCRA

simply does not apply to the facts of this case. See

discussion infra; see also National Audubon Society. et

al. v. Department of Water, et al., 869 F.2d 1196 (9th Cir.

1988). RCRA by its very nature is designed to address

areas that are more site specific (i.e. landfills and waste

— facilities) where the CAA is designed to

address air quality in a broader sense, which is what

Plaintiffs seek to remedy in this case.’ To allow citizens

® Plaintiffs have offered evidence that although the EPA

air quality standards have not been violated, recent

scientific research has determined the standards nay not

adequately protect the public’s health. If this is the case,

the solution to this disparity lies with Congress not with

the courts.

” Plaintiffs may argue the pollution in this case is site

specific to the farms who initiate the burning, however, the

evidence failed to establish any link to any specific farm.

The Plaintiffs have attempted to couch their claim to fit

within RCRA, however, the core of Plaintiffs’ complaint

seeks a broader resolution than contemplated by RCRA -

clean air in northern Idaho - which necessarily implies that

Plaintiffs’ allegations should be sought under the CAA.

Further, in setting the annual 24-hour standard for

A43

suits every time someone disagrees with the air

environment would be chaotic, unmanageable, and

unduly burdensome on the court system. In this case

alone there were approximately 1,800 phone calls made

to the state’s hotlinc complaining about the smoke in

one burning season. Further, the research and in-depth

analysis necessary to address and resolve the concerns

presented by these issues can and should only be

undertaken by Congress and administrative bodies

better suited for such a task.

e) Conclusion:

The Court finds the burning of Kentucky

Bluegrass residue is not a “disposal” of “solid waste” as

contemplated by RCRA and, therefore RCRA does not

apply nor was it intended to apply to the facts presented

in this case. This Court, therefore, is without jurisdiction

in this matter and Defendants’ motion to dismiss as to

the Plaintiffs’ RCRA claim must be granted. While the

Court concludes it is without jurisdiction in this matter,

the Court ‘is not finding the smoke is not a pollutant or a

particulates, specifically PM2.5, the EPA has directly

addressed the concerns raised by Plaintiffs 4 ape short

intense exposure to particulate matter by sensitive

_individuals. See National Ambient Air Quality Standards

for Particulate Matter, 62 Fed. Reg. 38,652, 38,677 (July 18,

1997) (to be codified 40 C.F.R. pt. 50) (“In the

Administrator’ s judgment, the factors discussed above

oa ample reason to believe that both annual and 24-

our PM 2.5 standards are appropriate to protect public

health from adverse health effects associated with short-

and long-term exposures to fine particles.”). Moreover, it

appears the EPA, pursuant to CAA, is continuing to

research and revise the national Ambient Air Quality

Standards for Particulate Matter. See e.g. Review of the

National Ambient Air Quality Standards for Particulate

Matter »6 Fed. Reg. 61,268, 61,275 December 3, 2001) (the

review of the NAAQS was scheduled to be completed by

July, 2002 but this date has been pushed back into 2003).

A44

cause of the health problems confronting the citizens in

the affected areas.

2) Federal Common Law Nuisance:

P!-intiffs’ nuisance claim asserts “Defendants’

burning of grass field residue creates an unreasonable

interference with the rights of the general public to life,

to safe and breathable air, and to be safe in their homes,

schools, workplaces, and communities without the

threat and harm to health of invasive and noxious

smoke and pollution.” (Docket No. 1, p. 27). Plaintiffs

ask this Court to “enjoin any future burning of grass

field residue by Defendants.” (Docket No. 1, p. 28).

Defendants assert Plaintiffs’ nuisance claim should be

dismissed because Congress has s oken with

particularity to the issues raised in Plaintiffs’ complaint

in both RCRA and the CA.A. (Docket No. 20, pp. 2,

12-19). Plaintiffs contend it is necessary for this Court to

entertain the nuisance claim because the Plaintiffs are

without an adequate state remedy and that the

controversy’s interstate nature makes state law

inappropriate.”*

8 Plaintiffs are citizens of Idaho and Washington. Their -

claims also involve potentially harmful affects in Montana

and Canada. The Court acknowledges that the Idaho

Supreme Court recently determined that Idaho's long-arm

statute provided personal jurisdiction over an out-of-state

farming corporation’s ? burning that se ag bag

an Idaho citizen in Idaho. McAnally v. Bonjac, Inc., 2002

WL 1419594 (Idaho) (Unpublished and subject to revision

at this time). However, Plaintiffs may be precluded from

raising a nuisance claim in state court. The Right to Farm

Act codified in Idaho Code Title 22, Chapter 45 seeks to

reduce the loss of agricultural operations by limiting the

circumstances whereby the operations may be deemed a

nuisance. Idaho Code § 22-4501. The statute protects

existing agricultural operations from being declared a

nuisance so long as the operation is not improper or

negligent. Idaho Code § 22-4503. The statute prevents the

A45

Nuisance is a common law claim alleging an

interference with one’s use or enjoyment of their

property. BLACK’S LAW DICTIONARY (7th Ed. 1999). “In

a federal common law nuisance action, the court is

asked to determine whether an act or omission causes

damage to the public.” National Audubon Society, et

al. v. Department of Water. et al., 869 F.2d 1196 (9th Cir.

1988). There is no general federal common law. Federal

courts, unlike state courts, are not general common law

courts and do not possess a geraene power to develo

and cig Penis own rules of decision. Id. at p. 12

(quoting Milwaukee v. Illinois, 451 U.S. 304, 312 (1981)).

“i is for Congress, not federal courts, to articulate

ap << standards to be rapa as a matter of

federal law.” Id. (citing Milwaukee at 317). The federal

common law nuisance claims cannot escape pete gern

if Congress has “occupied the field . . . through the

establishment of a comprehensive regulatory program

supervised by an expert administrative agency.” Id.

Federal common law may be fashioned only where “a

federal rule of decision is ‘necessary to protect uniquely

federal interests’” or an area where “Congress has given

the courts the power to develop substantive law.” Id.

(citations omitted).

While the case law has not determined that

Congress has preempted courts from applying federal

common law, it is clear that Congress has not given

courts the power to develop substantive law in this area.

The Ninth Circuit determined that the comprehensive

nature of the CAA gives no indication that Congress

intended to rely on a body of federal common law to

remedy air pollution. See National Audubon Soc., 869

F.2d at 1201 (holding the plaintiff could not properly

adoption of ordinances or resolutions declaring as a

nuisance any agricultural operations operated in

accordance with generally recognized agricultural

‘mone Idaho Code § 22-4504. This state law question,

— is not before the Court and will not be decided

ere.

A46

assert a federal common law nuisance action based on

air pollution but declining to decide whether or not such

a cause of action would he preempted by the CAA).

The case at bar presents neither a uniquely

federal interest nor an interstate dispute. Therefore,

Piaintiffs in this case cannot properly assert a federal

common law nuisance action based on air pollution. See

National Audubon Soc., 869 F.2d at 1201; see also Save

Our Summers v. Washington State Dept. of Ecology, 132

F. Supp. 2d 896 (E.D. Wa. 2000). is case presents

questions concerning predominately state policies and

interests. Although Plaintiffs contend federal law

should control because the effects of the burning cross

state lines and affect citizens of different states, this is

not the kind of “interstate dispute . . . requiring

resolution under federal law. .. .”. National Audubon

Society, 869 F.2d at 1205 (recognizing that the

“[Supreme] Court considers only those interstate

controversies which involve a state suing sources

outside of its own territory because they are causing

ollution within the state to be inappropriate for state

aw to control, and therefore subject to resolution

according to federal common law.”). Moreover, even

the fact that Idaho and Washington maintain essentially

conflicting policies regarding burning does not rise to

the level of an interstate dispute requiring federal

resolution. Id.

Based on the foregoing the Court finds the

Plaintiffs’ nuisance claim seeking to invoke federal

common lw must also be dismissed. The Court further

notes that this ruling does not leave the Plaintiffs

without any remedy, the remedy sought by Plaintiffs

simply must be achieved through the Fp channels

whether that be the CAA, through the EPA, or pursuing

changes through legislative means.

AA7

ORDER

Based on the sorenomg and being fully advised in

the premises, the Court HEREBY ORD as follows:

1) Defendants’ Motion to Dismiss is

GRANTED and the case is DISMISSED IN ITS

ENTIRETY.

2) Plaintiffs’ Motion for Preliminary

Injunction and Defendants’ Motion to Exclude Expert

itnesses are DENIED AS MOOT.

IT IS SO ORDERED this [19" day] of July, 2002.

EDWARD J. LODGE

UNITED STATES DISTRICT JUDGE

A48

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SAFE AIR FOR EVERYONE, Plaintiff-Appellant

Vv.

WAYNE MEYER, et al., Defendants-Appellees

No. 02-35751

Order

Before. WARDLAW, GOULD, and PAEZ, Circuit

Judges.

The Petition for Rehearing is DENIED.

The full court has been advised of the Petition for

Rehearing En Banc and no judge of the court has

requested a vote on the Petition for meee ET En Bane.

Fed. R. App. P. 35. Appellant's Petition for Rehearing En

Banc is also DENIED.

Filed October 5, 2004

A49

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

Resource Conservation and Recovery Act

Section 1004 [42 U.S.C. § 6903]

Definitions

***

(3) The term “disposal” means the discharge, deposit,

injection, dumping, spilling, leaking, or = of any

solid waste or hazardous waste into or on any land or

water so that such solid waste or hazardous waste or

any constituent thereof may enter the environment or be

emitted into the air or discharged into any waters,

including ground waters.

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(5) The term "hazardous waste" means a solid waste, or

combination of solid wastes, which because of its

quantity, concentration, or physical, chemical, or

infectious characteristics may--

(A) cause, or significantly contribute to an increase in

mortality or an increase in serious irreversible, or

incapacitating reversible, illness; or

(B) pose a substantial present or potential hazard to

human health or the environment when improperly

treated, stored, transported, or disposed of, or otherwise

managed.

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A50

(27) The term "solid waste" means any garbage, refuse,

sludge from a waste treatment plant, water supply

treatment plant, or air pollution control facility and

other discarded material, including solid, liquid,

semisolid, or contained gaseous material resulting from

industrial, commercial, mining, and agricultural

operations, and from community activities, but does not

include solid or dissolved material in domestic sewage,

or solid or dissolved materials in irrigation return flows

or industrial discharges which are point sources subject

to permits under section 402 of the Federal Water

Pollution Control Act, as amended (86 Stat. 880), or

source, special nuclear, or byproduct material as defined

Oba) Atomic Energy Act of 1954, as amended (68 Stat.

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(34) The term “treatment,” when used in connection

with hazardous waste, means any method, technique, or

process, including neutralization, designed to change

the physical, chemical, or biological character or

composition of any hazardous waste so as to neutralize

such waste or so as to render such waste nonhazardous,

safer for transport, amenable for recovery, amenable for

storage, or reduced in volume. Such term includes any

activity or processing designed to change the physical

form or chemical composition of hazardous waste so as

to render it nonhazardous.

*xe*e*

Section 7002 [42 U.S.C. § § 6972]

Citizen suits

(a) In general. Except as provided in subsection (b) or (c)

A51

of this section, vd person may commence a civil action

on his own behalf-- _

1) (A) against any person (including (a) the United

tates, and (b) any other governmental instrumentality

or agency, to the extent permitted by the eleventh

amendment to the Constitution) who is alleged to be in

violation of any permit, standard, regulation, condition,

2 monn prohibition, or order which has become

effective pursuant to this Act; or

(B) against any person, including the United States and

any other governmental instrumentality or agency, to

the extent permitted by the eleventh amendment to the

Constitution, and including any past or present

generator, past or present transporter, or past or present

owner or operator of a treatment, sterage, or disposal

facility, who has contributed or who is contributing to

the past or present handling, storage, treatment,

transportation, or disposal of any solid or hazardous

waste which may present an imminent and substantial

endangerment to health or the environment; or

(2) against the Administrator where there is alleged a

ailure of the Administrator to perform any act or duty

under this Act which is not discretionary with the

Administrator.

Any action under paragraph (a)(1) of this subsection

shall be brought in the district court for the district in

which the alleged violation occurred or the alleged

endangerment may occur. Any action brought under

—— (a)(2) of this subsection may be brought in

the district court for the district in which the alleged

violation occurred or in the District Court of the District

of Columbia. The district court shall have jurisdiction,

without regard to the amount in controversy or the

citizenship of the parties, to enforce the permit,

standard, regulation, condition, requirement,

prohibition, or order, referred to in paragraph (1)(A), to

restrain any person who has contributed or who is

A52

contributing to the past or present handling, storage,

treatment, transportation, or disposal of any solid or

hazardous waste referred to in paragraph (1)(B), to

order such person to take such other action as may be

necessary, or both, or to order the Administrator to

perform the act or duty referred to in paragraph (2), as

the case may be, and to apply any appropriate civi

penalties under section 3008(a) and (g).

(b) Actions prohibited.

t No action may be commenced under subsection

a)(1)(A) of this section--

(A) prior to 60 days after the plaintiff has given notice of

the violation to--

(i) the Administrator;

(ii) the State in which the alleged violation occurs; and

(iii) to any alleged violator of such permit, standard,

regulation, condition, requirement, prohibition, or order,

except that such action may be brought immediately

after such notification in the case of an action under this

section respecting a violation of subtitle C of this Act; or

(B) if the Administrator or State has commenced and is

diligently prosecuting a civil or criminal action in a court

of the United States or a State to require compliance

with such permit, standard, regulation, condition,

requirement, prohibition, or order.

In any action under subsection (a)(1)(A) in a court of the

en States, any person may intervene as a matter of

right.

- (A) No action may be commenced under subsection

a)(1)(B).of this section prior to ninety days after the

plaintiff has given notice of the endangerment to--

A53

(i) the Administrator;

(ii) the State in which the alleged endangerment may

occur;

(iii) any person alleged to have contributed or to be

contributing to the past or present handling, storage,

treatment, transportation, or disposal of any solid or

hazardous waste referred to in subsection (a)(1)(B),

except that such action may be brought immediately

after such notification in the case of an action under this

section respecting a violation of subtitle C of this Act.

B) No action may be commenced under subsection

tC )CB) of this section if the Administrator, in order to

restrain or abate acts or conditions which may have

contributed or are contributing to the activities which

may present the alleged endangerment--

(i) has commenced and is diligently prosecuting an

action under section 7003 of this Act or under section

106 of the Comprehensive Environmental Response,

Compensation and Liability Act of 1980;

(ii) is actually engaging in a removal action under

section 104 of the Comprehensive Environmental

Response, Compensation and Liability Act of 1980;

(iii) has incurred costs to initiate a Remedial

Investigation and Feasibility Study under section 104 of

the Comprehensive Environmental Response,

Compensation and Liability Act of 1980 and is diligently

roceeding with a remedial action under that Act; or

tiv) has obtained a court order (including a consent

decree) or issued an administrative order under section

106 of the Comprehensive Environmental Response,

Compensation and Liability Act of 980 [1980] or section

A54

7003 of this Act pursuant to which a responsible pee is

diligently conducting a removal action, Remedia

Investigation and Feasibility Study (RIFS), or proceeding

with a remedial action.

In the case of an administrative order referred to in

clause (iv), actions under subsection (a)(1)(B) are

prohibited only as to the scope and duration of the

administrative order referred to in clause (iv).

C) No action may be commenced under subsection

a)(1)(B) of this section if the State, in order to restrain or

abate acts or conditions which may have contributed or

are contributing to the activities which may present the

alleged endangerment--

(i) has commenced and is diligently prosecuting an

action under subsection (a)(1)(B);

(ii) is actually engaging in a removal action under

section 104 of the Comprehensive Environmental

Response, Compensation and Liability Act of 1980 or

(iii) has incurred costs to initiate a Remedial

Investigation and Feasibility Study under section 104 of

the Comprehensive Environmental Response,

Compensation and Liability Act of 1980 and is diligently

proceeding with a remedial action under that Act.

D) No action may be commenced under subsection

(a)(1)(B) by any person (other than a State or local

government) with respect to the siting of a hazardous

waste treatment, storage, or a disposal facility, nor to

restrain or enjoin the issuance of a permit for such facility.

(E) In any action under subsection (a)(1)(B) in a court of

the United States, any person may intervene as a matter

of right when the applicant claims an interest relating to

the subject of the action and he is so situated that the

disposition of the action may, as a practical matter,

A55

impair or impede his ability to protect that interest,

unless the Administrator or the State shows that the

applicant's interest is adequately represented by existing

parties.

F) Whenever any action is brought under subsection

MY )(B) in a court of the United States, the plaintiff shall

serve a copy of the complaint on the Attorney General of

the United States and with the Administrator.

(c) Notice. No action may be commenced under

— (a) (2) of this section prior to sixty days after

the plaintiff has given notice to the Administrator that

he will commence such action, except that such action

may be brought immediately after such notification in

the case of an action under this section respecting a

violation of subtitle C of this Act. Notice under this

subsection shall be given in such manner as the

Administrator shall prescribe by regulation. Any action

respecting a violation under this Act may be pret oe

under this section only in the judicial district in which

such alleged violation occurs.

(d) Intervention. In any action under this section the

Administrator, if not a party, may intervene as a matter

of right.

(e) Costs. The court, in issuing any final order in an

action brought pursuant to this section or section 7006

may award costs of litigation (including reasonable

attorney and expert witness fees) to the prevailing or

substantially prevailing party, whenever the court

determines such an award is appropriate. The court

may, if a temporary restraining order or preliminary

injunction is sought, require the filing of a bond or

a och gn security in accordance with the Federal Rules

of Civil Procedure.

(f) Other rights preserved. Nothing in this section shall

restrict any right which any person (or class of persons)

may have under any statute or common law to seek

A56

enforcement of any standard or requirement relating to

the management of solid waste or hazardous waste, or

to seek any other relief (including relief against the

Administrator or a State agency).

(g) Transporters. A transporter shall not be deemed to

have contributed or to be contributing to the handling,

storage, treatment, or disposal, referred to in subsection

(a)(1)(B) taking place after such solid waste or

hazardous waste has left the possession or control of

such transporter, if the transportation of such waste was

under a sole contractual arrangement arising from a

published tariff and acceptance for carriage by common

carrier by rail and such transporter has exercised due

care in the past or P mee oe storage, treatment,

transportation and disposal of such waste.

EEKKKKEEETE

A57

Excerpts from Transcript of

Preliminary Injunction Hearing (July 10-11, 2002)

Testimony of Donald W. Jacklin

Direct Examination

Questions by Mr. HcHugh [Co-Counsel for Plaintiff]

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Q. Are you familiar then, based on your work

with Jacklin Seed, as to the reason for burning grass field

residue?

A. Yes, lam. Basically we burned our fields and

other farmers burned their fields for the peo J

purpose of a photo induction for increased seed yield.

Q. With regards to that, is that the primary

purpose.

A. That is the primary purpose.

Q. Can you puta percentage on that? How high

of percent of that is the reason why?

A. If I were to say what is the major reason I

burned, 99.9 — of it is for burning for a photo

period or a photo induction enhancement of seed yield.

Q. Describe what the photo induction period is.

A. A photo induction period, I guess I can best

describe as comparing it in comparing an Easter lilly. If

ou have an Easter lilly and you give it a certain day

ength, it be be vegetative or just leaf up until a certain

period of time. As it gets closer to Easter, you increase

the daylight and it receives a photo induction period

and it flowers. So it has a reproductive part to it.

A58

That is essentially what happens with all plants

that do flower and Kentucky bluegrass is the same

scenario. So those new green tillers that emerge

following a burn are subjected to sunlight. If they don't

et sunlight, they are going to be very vegetative, which

the homeowner wants vegetation, he doesn’t want seed

production. So the farmer's trick is to convince that

plant, if you will, through their practices to go

reproductive instead of oe

By burning in the fall, it rids the surface and the

canopy so we have a bare soil. The new tillers or new

tissue comes up, receives sunlight and basically creates a

photo period that tells the plant be reproductive this

next year rather than vegetative.

And you can actually go in then in December,

January and February, dissect those little shoot tissues

and a seed head primordia, or in normal terms, a seed

head fetus and it will be reproductive or vegetative

ro the amount of sunlight exposure you receive in

the fall.

Q. How important is it to remove the residue

quickly after harvest?

A. Extremely important. It needs to come off as

soon as possible and obviously as much as possible.

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A59

June 3, 2002, Declaration of Arthur Long, Exhibit F