Last week the Southern District of Ohio held that air emissions from DuPont's Teflon production operations at its Washington Works Facility in West Virginia, which landed on a water supplier's wellfield and contaminated the soil and groundwater, constituted disposal of solid waste under RCRA.

The plaintiff, a nonprofit water supplier, sued DuPont in a citizen suit for "imminent and substantial endangerment" under RCRA, 42 U.S.C. § 6972(a)(1)(B). The plaintiff claimed that Teflon production operations at DuPont's Washington Works Facility in West Virginia produced air emissions that landed on the plaintiff's wellfield, polluting the land and groundwater beneath it. The alleged hazardous wastes emitted by DuPont's operations were perfluorooctanoic acid (C8) and other perfluorinated compounds (PFCs). DuPont used C8 in its manufacturing processes from 1951 until it was finally phased out completely in June 2013. DuPont did not contest either the fact that it released C8 or the amount of C8 it released through its air emissions. Instead, DuPont argued that air emissions are not a disposal covered by RCRA.

DuPont encouraged the court to adopt the Ninth Circuit's recent holding in Ctr. for Cmty. Action & Envtl. Justice v. BNSF R. Co., 764 F.3d 1019 (9th Cir. 2014) and to find that its air emissions did not constitute disposal under RCRA. In BNSF, the Ninth Circuit held that particulate matter emitted in diesel exhaust by BNSF's trains and vehicles—which were discharged into the air, fell onto the ground and water nearby, and then re-entrained into the atmosphere, causing elevated cancer risk—did not meet the definition of "disposal" under RCRA § 6903(3). There, the Ninth Circuit held that, under § 6903(a), "disposal" is strictly confined to a particular order, in which solid waste is first placed "into or on any land or water" and is thereafter emitted into the air. Thus, the court held, a disposal directly into the air which then fell on the ground was not "disposal" under RCRA, and to hold otherwise would reject Congress's intent in passing RCRA.

The Southern District of Ohio rejected this line of thinking, finding that in contrast to the chain of events in BNSF, solid C8 particles from the DuPont facility were emitted into the air, fell onto the ground, remained there, and then contaminated the soil and groundwater. The court found that "this type of soil and groundwater contamination is precisely the type of harm RCRA aims to remediate in its definition of 'disposal:' 'the deposit ... or placing of any solid ... waste into or on any land or water so that such solid waste or hazardous waste ... may enter the environment ... or [be] discharged into any waters, including ground waters.'"

Accordingly, the Southern District held that DuPont's air emissions of C8, which landed on the plaintiff's wellfield and contaminated the soil and groundwater, constitute disposal of solid waste under RCRA. While it seems likely that DuPont will appeal this ruling, this scenario is a common one and could open the door to RCRA citizen suit claims by those nearby any historic manufacturing operations that produced air emissions. If the Sixth Circuit affirms the Southern District of Ohio's ruling, a circuit split could require the Supreme Court of the United States to weigh in on whether RCRA extends to this type of air emissions.

More information can be found here and here. The case is The Little Hocking Water Association Inc. v. DuPont Co., case number 2:09-cv-10081, in the U.S. District Court for the Southern District of Ohio. A copy is available here.

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