18 February 2016
In Northern Illinois Gas Company v. City of Evanston,1 the Northern District of Illinois held that alleged natural gas leaks from distribution pipelines are not “solid or hazardous waste” subject to the Resource Conservation and Recovery Act (“RCRA”).2 The ruling is important because it confirms that owners and operators of natural gas pipelines cannot be held liable under RCRA for purported violations or endangerments posed by alleged natural gas leaks. Mayer Brown represented Northern Illinois Gas Company.
The dispute arose after methane gas was detected in and around a public park. The park was built atop a former landfill that was owned and operated by the City of Evanston. The City, however, alleged that the methane came from natural gas distribution lines. The City filed a citizen suit against two utility companies under RCRA, which allows 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.”3 RCRA defines “hazardous waste” as a subset of “solid waste,” and defines “solid waste” as “any garbage, refuse, sludge … and other discarded material, including solid, liquid, semisolid, or contained gaseous material.”
The court held that “uncontained” gases—like alleged natural gas leaks—are not “solid waste.” Initially, the court held that RCRA’s “solid waste” definition is ambiguous. The court found that while the “most natural reading” of “solid waste” would exclude alleged natural gas leaks, the definition does cover other non-solid materials and is apparently non-exhaustive. The court then turned to the US Environmental Protection Agency for guidance.
EPA had concluded in at least two rulemakings and several other instances that uncontained gases do not fall within RCRA’s definition of solid waste. The court held that EPA’s interpretation is entitled to deference under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), because it “is a reasonable interpretation of Section 6903(27) and is consistent with the most natural reading of that provision.” The court also found EPA’s interpretation persuasive even if it were not binding.
The court’s ruling is significant, particularly in light of the high-profile and ongoing natural gas leak in Porter Ranch, California, and EPA’s and the Department of the Interior’s increased efforts to regulate methane emissions (under other laws). Had the Illinois district court reached a contrary result, owners and operators of natural gas pipelines could have been exposed to substantial RCRA liability and citizen suits in connection with alleged natural gas leaks.
1 2016 WL 521002 (N.D. Ill. Feb. 10, 2016).
2 42 U.S.C. § 6901 et seq.
3 42 U.S.C. § 6972(a)(1)(B) (emphasis added).