Ninth Circuit Court of Appeals Reverses RCRA Citizen Suit Decision Affecting Drinking Water Supply Agencies in California River Watch v. City of Vacaville

July 7, 2022

In a significant course-correction, a Ninth Circuit panel recently revisited its prior opinion in California River Watch v. City of Vacaville, (14 F.4th 1076 (9th Cir. 2021) (“Vacaville I”)), where the Court previously held the City of Vacaville (“City”) could be liable for transporting a solid waste (hexavalent chromium) in its drinking water supply simply due to that contaminant being present in groundwater withdrawn for water supply purposes. On a denial of a rehearing en banc, the same three-judge panel who issued the Vacaville I opinion issued a new order and opinion withdrawing and superseding the former opinion, now affirming summary judgment in favor of the City.

Downey Brand summarized Vacaville I  and its implications here. Vacaville I potentially expanded the scope of liability under the Resource Conservation and Recovery Act (“RCRA”) by finding the City of Vacaville could be liable for contributing to the transportation of a solid waste solely by operating a drinking water distribution system drawing from groundwater that contained discarded hexavalent chromium from former industrial activities unassociated with the City’s operations or activities.

Prior Proceedings

California River Watch (“River Watch”) brought a RCRA citizen suit against the City on the theory that the City is contributing to the transportation of hexavalent chromium, which River Watch alleged is a “solid waste.” In addition to civil penalties, declaratory relief, and attorneys’ fees, River Watch sought an injunction ordering the City to immediately operate its water system in compliance with RCRA, provide significant public outreach, and pay for alternative water supplies. RCRA’s citizen suit provision provides that any person may file suit against:

any person, including the United States and any other governmental instrumentality or agency, . . . and including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, 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.

42 U.S.C. § 6972(a)(1)(B).

River Watch alleged that hexavalent chromium, previously discarded by operators of wood treatment facilities in neighboring Elmira, California, migrated through groundwater to contaminate water drawn by City’s wells. River Watch contended that by operating its water distribution system, the City was “‘transporting and discharging water containing high amounts of hexavalent chromium’ in a manner dangerous to residents.” Both parties moved for summary judgment.

The District Court granted summary judgment in the City’s favor. However, River Watch appealed and the Ninth Circuit panel reversed, finding a triable issue of fact as to whether the City’s operation of the water distribution system could be unlawfully contributing to the transportation of a solid waste in violation of RCRA.

Vacaville II

The Ninth Circuit panel then reversed course in its July 1, 2022 order and opinion California River Watch v. City of Vacaville, __ F.4th __ (9th Cir. 2022) (Case No. 20-16605) (“Vacaville II”). The panel began by carefully reviewing the text of the citizen suit provision, focusing in particular on “transportation.” River Watch argued the City is liable due to physically “transporting” the hexavalent chromium by pumping it through its water supply system. Upon reconsideration, the Ninth Circuit panel agreed with the City that liability for “transportation” requires a “direct connection to the waste disposal process—not a coincidental movement of the waste through the City’s water supply.” Vacaville II, at 12.

Although the Ninth Circuit panel considered the dictionary definition of “transportation,” the panel determined that such a limited approach would “lead us astray.” Vacaville II, at 13.  Instead, the panel opted to consider “transportation” in the specific context of RCRA’s citizen suit provision and against the broader context of the RCRA as a whole. The panel analyzed various instances where RCRA imposed liability on transporters or transportation and found these instances directly connected the movement of waste to an active waste disposal process, usually involving a transporter.

Using this understanding of RCRA’s regulatory scheme, the Ninth Circuit panel then interpreted “transportation” in the citizen suit provision by connecting that term to the provision’s specific reference to “transporters.” “Congress’s reference to a ‘transporter’ of waste narrows the context of what it means to ‘transport[]’ waste.” Vacaville II, at 17.  Thus, the panel determined that the statutory framework and context makes it clear that the “mere conveyance” of hexavalent chromium cannot give rise to liability under the citizen suit statute. Rather, liability under the statute arises from transportation “directly connected to the waste disposal process—such as shipping waste to hazardous waste treatment, storage, or disposal facilities.” Id.

Affirming summary judgment for the City, the Ninth Circuit panel absolved the City from liability for “transportation” without that necessary direct connection. While River Watch alleged the City’s water supply system moved hexavalent chromium, River Watch failed to allege or provide evidence that the City actively moved hexavalent chromium as part of its waste disposal process. Without more, River Watch’s theory was legally insufficient.

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