Randall Krause v. City of Omaha

Filing

PER CURIAM OPINION FILED - THE COURT: Duane Benton, Pasco M. Bowman and Jane Kelly (UNPUBLISHED) [4369354] [15-2985]

United States Court of Appeals
For the Eighth Circuit
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No. 15-2985
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Randall S. Krause
lllllllllllllllllllll Plaintiff - Appellant
v.
City of Omaha
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: February 11, 2016
Filed: February 22, 2016
[Unpublished]
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Before BENTON, BOWMAN, and KELLY, Circuit Judges.
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PER CURIAM.
Randall Krause appeals after the district court1 dismissed his complaint seeking
declaratory and injunctive relief under the Resource Conservation and Recovery Act
1

The Honorable Laurie Smith Camp, Chief Judge, United States District Court
for the District of Nebraska.

Appellate Case: 15-2985

Page: 1

Date Filed: 02/22/2016 Entry ID: 4369354

(RCRA), 42 U.S.C. §§ 6901-6992, related to the City of Omaha’s use of sodium
chloride and sodium ferrocyanide--a type of road salt to melt snow and ice--on a
street located within a flood plain.
After careful review, we conclude that the district court did not err in
dismissing Krause’s complaint on grounds that the road salt described in the
complaint did not meet the statutory definition of “solid waste” under RCRA. See
Minn. Majority v. Mansky, 708 F.3d 1051, 1055 (8th Cir. 2013) (dismissal for failure
to state claim reviewed de novo; appellate court assumes all facts in complaint to be
true and construes all reasonable inferences from those facts favorably to
complainant); cf. Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502,
514-18 (9th Cir. 2013) (affirming lower court’s dismissal of complaint claiming that
utility company had violated RCRA by treating utility poles with wood preservative,
which was released over time and was in turn “discarded” by rain water falling on
poles; concluding that such wood preservative was not “discarded”, and therefore was
not “solid waste” under RCRA, where it was released into the environment as an
expected consequence of its intended use).
Accordingly, we affirm. See 8th Cir. R. 47B.
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Appellate Case: 15-2985

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Date Filed: 02/22/2016 Entry ID: 4369354