# Appendices — Safe Air for Everyone v. Meyer

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1361%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendices
- **Published:** January 1, 2005
- **Citation:** 544 U.S. 1018

## Text

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

Al

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.").

A6é

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

A9

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

A13

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1361%3A2. Public record. Not legal advice.