ELR Citation: ELR 20040
No(s). 08-1197 (10th Cir. Feb 8, 2010)

The Tenth Circuit affirmed a lower court decision that denied a current and a former airline employee injunctive relief under the citizen suit provision of RCRA to prohibit full-plane deicing at airport gates and to require other precautionary steps relating to airport deicing fluid (ADF) as the employees failed to demonstrate that ADF presented an imminent and substantial endangerment to health. Although the employees conceded that the cessation of full aircraft gate deicing resulted in at least a partial abatement of conditions giving rise to the risk of harm from ADF, they asserted, among other things, that the possibility of resumption of deicing presented an imminent and substantial endangerment. The court disagreed, holding that solid waste presents an endangerment if harm may result absent further remedial measures. The endangerment must be imminent even if the harm is in the future. Here, nothing going on at the airport at the time of trial or expected in the immediate future would, even without remedial measures, present a prospect of harm to human health. It is not enough under RCRA that in the future someone may do something with a solid waste that, absent protective measures, can injure human health.