## Facts

- New York City implemented and planned to renew a pesticide spraying program to control mosquitoes and reduce the risk of West Nile virus.
- The City applied insecticides (including adulticides) over densely populated areas, including by truck spraying and possibly aircraft.
- Environmental and disability-rights organizations and individuals alleged actual and threatened health and environmental harms from exposure to the spraying.
- Plaintiffs sued under RCRA’s citizen-suit provision, alleging the spraying was the “disposal” of “solid waste” or “hazardous waste” presenting an “imminent and substantial endangerment.”
- Plaintiffs also alleged the City’s application method violated EPA-approved label directions (claimed to limit use to wooded areas and grassy pastures), arguing that this made the pesticide “discarded material.”
- The district court denied a preliminary injunction and dismissed the RCRA claims; plaintiffs appealed.

## Issues

1. Whether a municipal mosquito-control pesticide spraying program constitutes “disposal” of “solid waste” (or hazardous waste) under RCRA sufficient to support an imminent-endangerment citizen suit.
2. Whether alleged violations of pesticide label directions convert intentionally applied pesticides into “discarded material,” and thus “solid waste,” under RCRA.
3. Whether an imminent-endangerment claim may proceed under RCRA when the challenged substance is a commercial product in active use rather than waste.

## Decision

- The Second Circuit affirmed the denial of preliminary injunctive relief and affirmed dismissal of the complaint.
- The court held the City’s spraying program did not involve “disposal” of “solid waste” under RCRA because the pesticides were being applied for their intended purpose, not discarded.
- The court rejected the theory that alleged label noncompliance or “improper use” transforms a product in active use into “discarded material” under RCRA.
- Because plaintiffs failed to satisfy RCRA’s threshold requirement that the challenged conduct involve “solid waste,” the imminent-endangerment claim could not proceed.

## Legal Principles

- RCRA’s imminent-endangerment citizen-suit provision applies only to conduct involving the handling or disposal of “solid waste” or “hazardous waste.”
- “Solid waste” under RCRA requires “discarded material”; products used for their intended purpose are not “discarded” merely because they are toxic or allegedly harmful.
- Alleged misuse of a product, including alleged noncompliance with label directions, does not by itself convert the product into “solid waste” for RCRA purposes.
- Appellate review of a preliminary-injunction denial may include affirmance on the merits where the record shows the claims fail as a matter of law.

## Conclusion

The Second Circuit held that RCRA does not authorize an imminent-endangerment citizen suit to enjoin New York City’s mosquito-control pesticide spraying because the pesticides, as intentionally applied for their intended purpose, are not “discarded material” and therefore not “solid waste” under RCRA.


No Spray Coal., Inc. v. City of New York, 252 F.3d 148 (2d Cir. 2001)