Home » Case Summaries » 2004 » Safe Air for Everyone v. Meyer


Safe Air for Everyone v. Meyer



Safe Air for Everyone (Safe Air) appealed a district court dismissal of its complaint against seventy-five individuals and corporations that grow Kentucky bluegrass in Idaho (Growers) for lack of subject matter jurisdiction. Safe Air sued under the citizen suit provision of the Resource Conservation and Recovery Act (RCRA),[1] claiming that practice of burning bluegrass residue remaining on the field after harvest (open burning) violated the RCRA prohibition against disposal of solid waste that presents “an imminent and substantial endangerment to health or the environment.”[2] After converting the district court’s dismissal to a grant of summary judgment, the Ninth Circuit affirmed the district court’s judgment that Safe Air demonstrated no issues of material fact as to whether grass residue is solid waste under RCRA.

Safe Air is a non-profit corporation whose objectives include stopping the practice of open burning, which, it believes, creates respiratory problems for nearby residents due to high concentrations of pollutants. Growers practice open burning of straw and stubble remaining after Kentucky bluegrass is harvested. Safe Air filed a complaint alleging that Growers’ open burning violated RCRA and seeking a preliminary injunction to prevent Growers from engaging in open burning. Growers filed a response opposing Safe Air’s preliminary injunction motion and moved to dismiss for lack of subject matter jurisdiction.

After an evidentiary hearing on Safe Air’s request for a preliminary injunction, the district court dismissed Safe Air’s complaint. The district court concluded that it had no jurisdiction to resolve the RCRA claim because “grass residue did not constitute ‘solid waste’ under RCRA.”[3] Safe Air appealed to the Ninth Circuit.

Growers’ motion to dismiss was filed pursuant to Federal Rule of Civil Procedure 12,[4] and the district court granted the motion under Rule 12(b)(1),[5] lack of subject matter jurisdiction. On appeal, Safe Air argued that the district court erroneously dismissed the complaint because 1) Growers’ motion to dismiss should have been converted to a Rule 56 summary judgment motion[6] because the court considered evidence outside Safe Air’s complaint; and 2) the issue of whether grass residue is “solid waste” under the RCRA definition was not, as the district court ruled, a jurisdictional issue.

The Ninth Circuit previously held that it is not necessary to convert a motion to dismiss into a summary judgment motion in order to consider evidence outside of a complaint.[7] Under the Supreme Court’s standards, a jurisdictional dismissal is justified when a claim “clearly appears to be immaterial and made solely for the purpose of obtaining federal jurisdiction or where such claim is wholly insubstantial and frivolous.”[8]

The Ninth Circuit previously held that “the question of jurisdiction and the merits of an action are intertwined where ‘a statute provides the basis for both the subject matter jurisdiction of the federal court and the plaintiff’s substantive claim for relief.'”[9] In such cases, the court reasoned, it is necessary for a court to decide a case on its merits,[10] and a Rule 12(b)(1) dismissal is not appropriate. In this case, the Ninth Circuit decided that the district court erred in applying Rule 12(b)(1) because jurisdictional and substantive questions are so closely intertwined in the “citizen suit” provision of RCRA that jurisdiction depends on the resolution of factual issues decided on the merits. Growers declined to argue that Safe Air’s federal claims did not meet any of the Supreme Court’s standards for jurisdictional dismissal.

The Ninth Circuit reviewed the district court’s order as a grant of summary judgment on the merits in favor of Growers. As a result, the Ninth Circuit considered RCRA in light of case law interpretation and legislative history to evaluate whether Safe Air’s complaint contained an issue of material fact regarding whether grass residue is “solid waste.” The court reviewed the ruling de novo.

In enacting RCRA, Congress attempted to address “the need to reduce the amount of waste and unsalvageable materials and to provide for proper and economical solid waste disposal practices.”[11] To prevail under the citizen suit provision of RCRA, Safe Air needed to demonstrate that Growers’ open burning constituted 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.”[12] Because Safe Air alleged that the grass residue was solid waste, the Ninth Circuit focused on whether the residue met the definition of “solid waste” in RCRA.

In examining the plain meaning of the statutory language, the Ninth Circuit looked at the RCRA definition of solid waste: “any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material.”[13] Because RCRA does not define “discarded material,” the court considered “discarded” to have its ordinary meaning: to “cast aside; reject; abandon; give up.”[14]

Growers’ evidence indicated that they reused the grass residue, rather than discarding it, as part of an ongoing process. Two primary benefits resulted from this reuse: nutrients were returned to the fields, and the open burning process was facilitated. Safe Air conceded that Growers derived benefits from the grass residue, but argued that the primary benefit from open burning was the removal of grass residue, and other benefits were incidental to this removal. The Ninth Circuit, however, held that dismissing benefits as “incidental” did not constitute an effective challenge. The court decided it was bound by RCRA’s language requiring that solid waste consist of “discarded” materials, and the reuse of grass residue in a “continuous farming process” precluded the residue from being defined as “solid waste.” The court concluded that there was no issue of material fact as to whether grass residue was “discarded material”–the court held that it clearly was “not discarded, abandoned, or given up, and it [did] not qualify as ‘solid waste’ under RCRA.”[15]

In addition, the court examined the holdings of other circuit courts on the definition of “solid waste.” The Ninth Circuit’s analysis included the following: 1) whether the material in question will be reused or recycled by the industry from which it was generated;[16] 2) whether the material is actually reused or is only potentially reusable;[17] and 3) whether the materials are reused by the party that generated them, rather than another party acting as a salvager or reclaimer.[18] Using these factors, the court held that the grass residue would not be considered “solid waste” under RCRA because burnt bluegrass residue is reused by the industry as a fertilizer and as a substance to prevent infestation. Under these standards, the Ninth Circuit held that there was no material issue of fact as to whether the residue was “discarded.”

The Ninth Circuit then considered RCRA’s legislative history, which it held to reinforce the conclusion that Congress did not intend to prohibit grass residue under RCRA. The House Report indicated that Congress intended to address the problem of waste products filling landfills, and to increase “reclamation and reuse practices” and explicitly excluded “[a]gricultural wastes which are returned to the soil as fertilizers” from the category of “discarded material.” [19] Thus, the Ninth Circuit concluded that Kentucky bluegrass residue was not a “solid waste” and that the practice of open burning was not prohibited by RCRA.

Judge Paez concurred as to the review of the district court’s dismissal for lack of subject matter jurisdiction as a grant of a summary judgment motion, but dissented from the majority opinion that Safe Air did not demonstrate that grass residue was “solid waste” under RCRA. He found that the majority erred in its application of the ordinary meaning of the word “discarded,” which, in his opinion, included the act of removal. Growers did not dispute Safe Air’s assertion that the primary objective of burning the fields was the removal of grass residue, within the plain meaning of the word “discarded.” Thus, genuine issues of fact existed as to whether the grass residue was “solid waste” under RCRA. Furthermore, Judge Paez concluded that the majority’s analysis of sister circuit cases and legislative history (in addition to the ordinary meaning of “discard”) was unnecessary. Finally, Judge Paez would have held “that the burning of the post-harvest crop residue constitutes ‘disposal’ of that waste under the RCRA,”[20] or, in the alternative, it constitutes “treatment” or “handling” of solid waste in violation of the RCRA.[21] Judge Paez would have reversed the district court’s dismissal and remanded the case for trial.

[1] Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901-6992k (2000) (amending Solid Waste Disposal Act, Pub. L. No. 89-272, 79 Stat. 992).

[2] Id. § 6972(a)(1)(B).

[3] Safe Air for Everyone v. Meyer (Safe Air), 373 F.3d 1035, 1038 (9th Cir. 2004).

[4] Fed. R. Civ. P. 12.

[5] Fed. R. Civ. P. 12(b)(1).

[6] Fed. R. Civ. P. 56.

[7] Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n. 2 (9th Cir. 2003) (citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)).

[8] Bell v. Hood, 327 U.S. 678, 682-83 (1946).

[9] Safe Air, 373 F.3d at 1039 (quoting Sun Valley Gas, Inc. v. Ernst Enters. (Sun Valley), 711 F.2d 138, 139 (9th Cir. 1983)).

[10] Sun Valley, 711 F.2d at 139.

[11] Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901(a)(4) (2000).

[12] Id. § 6972(a)(1)(B).

[13] Id. § 6903(27) (emphasis added).

[14] 1 The New Shorter Oxford English Dictionary 684 (4th ed. 1993).

[15] Safe Air, 373 F.3d at 1045.

[16] See, e.g., Am. Mining Cong. v. United States Envtl. Prot. Agency (AMC I), 824 F.2d 1177, 1190 (D.C. Cir. 1987) (The Resource Conservation and Recovery Act of 1976 “reveals clear congressional intent to extend EPA’s authority only to materials that are truly discarded, disposed of, thrown away, or abandoned”).

[17] See Am. Mining Cong. v. United States Envtl. Prot. Agency (AMC II), 907 F.2d 1179, 1186 (D.C. Cir. 1990) (rejecting the claim that the “potential reuse of a material prevents the agency from classifying it as ‘discarded'”).

[18] See United States v. ILCO, Inc., 996 F.2d 1126, 1131-32 (11th Cir. 1993) (“It is necessary to read into the word ‘discarded’ a congressional intent that the waste in question must finally and forever be discarded.”).

[19] H.R. Rep. No. 94-1491, at 2-3 (1976), reprinted in 1976 U.S.C.C.A.N. 6238, 6240.

[20] Safe Air, 373 F.3d at 1053 (Paez, J., concurring in part and dissenting in part).

[21] Resources Conservation Recovery Act of 1976, 42 U.S.C. § 6972(a)(1)(B) (2000).

Print this pageEmail this to someoneTweet about this on TwitterShare on Facebook

Comments are closed

Sorry, but you cannot leave a comment for this post.