Ninth Circuit Finds that Distribution of Drinking Water Containing MCL-Compliant Levels of Hexavalent Chromium Gives Rise to RCRA Liability in Decision that Upends Law of the Circuit
October 15, 2021
The Ninth Circuit recently issued a decision in Cal. River Watch v. City of Vacaville (Case No. 20-16605) (“Vacaville”) regarding the breadth of Resource Conservation and Recovery Act (“RCRA”) liability for contributing to the transportation of a solid waste, which may present an “imminent and substantial endangerment” to health or the environment. (42 U.S.C. § 6972(a)(1)(B).) Ultimately, the Ninth Circuit found that because the City of Vacaville (“City”) transported through its water distribution system drinking water that contained discarded hexavalent chromium from activity unassociated with the City, a triable issue existed regarding whether the City was liable under the “substantial endangerment” provision of RCRA, despite the City’s lack of involvement in generating the waste in question or in the waste disposal process. The decision appears to significantly undercut Hinds Investments, L.P. v. Angioli, 654 F.3d 846 (9th Cir. 2011) (“Hinds”), which held that some involvement in the waste disposal process is necessary for liability to exist under RCRA’s imminent and substantial endangerment liability provision, and could have wide-raging implications for California municipalities and public water system operators. This case could be especially problematic given the recent federal and State focus on perfluoroalkylated substances (“PFAS”), which are found in a wide variety of products (including pots, pans, clothing, food service items, among others), and can be released into the environment through a number of activities, including, but not limited to domestic household tasks, such as washing clothes and dishes.
Lower Court Proceedings
In a RCRA citizen suit brought by California River Watch (“River Watch”), River Watch alleged the City’s water supply wells were contaminated by hexavalent chromium, and because the City conveys that water to residents through the City’s distribution system, the City was contributing to the transportation of a solid waste (hexavalent chromium), which may present an imminent and substantial endangerment in violation of RCRA. Interestingly, River Watch failed to identify the origin of the hexavalent chromium in its summary judgment papers filed in the lower court, vaguely pointing to an “anthropogenic” source of contamination. River Watch’s primary theory in the lower court was that the origin of contamination is irrelevant, a contention that directly undercuts the Hinds case. The lower district court granted summary judgment in favor of the City, and River Watch appealed.
The Ninth Circuit’s Decision
On appeal, River Watch refined its argument, alleging that the hexavalent chromium in question migrated through groundwater from the “Wickes Site.” The Wickes Site sits approximately 1.4 to 3.3 miles from the City’s drinking water well field and was the location where chromium wastes were discharged onto the ground in association with wood treatment activities allegedly conducted by entities such as Pacific Wood Preserving and Wickes Forest Industries, Inc. Thus, by demonstrating on appeal that the hexavalent chromium was allowed to pass onto the ground without any attempt at recovery and, therefore, was a manufacturing waste by-product, River Watch was able to remedy its earlier failure to adequately demonstrate that the hexavalent chromium was essentially discarded and, therefore, constituted a solid or hazardous waste. The Ninth Circuit found that River Watch adequately preserved this theory by merely pointing to the Wickes Site as a “likely” anthropogenic source of the contamination in question in its summary judgment papers.
Notably, the City of Vacaville had no involvement in the waste generation or disposal process, and did nothing to cause the alleged contamination of its water supply. Furthermore, the levels of contamination detected exceeded public health goals, but did not exceed the applicable State total chromium Safe Drinking Water Act (“SDWA”) primary Maximum Contaminant Level (“MCL”) of 50 parts per billion. The City alleged that the hexavalent chromium in its water supply is naturally occurring.
The significance of this case is the Ninth Circuit found that RCRA does not require that a solid waste “transporter,” play some role in “discarding” or “generating” the waste alleged to have created an imminent and substantial endangerment. However, as pointed out by the dissent, because the City had no involvement in the waste disposal process, and did nothing to cause the alleged contamination of the ground water supply, such a finding significantly undercuts the law of the circuit, as stated in Hinds. In that case, the Ninth Circuit stated,
We decline to give such an expansive reading to the term “contribute.” Instead, . . . we decide that the statutory language permitting suits against “any person . . . who has contributed or who is contributing” to the handling, storage, treatment, transportation or disposal of hazardous waste, § 6972(a)(1)(B), requires that a defendant be actively involved in or have some degree of control over the waste disposal process to be liable under RCRA.
Id. at 851 (emphasis added).
Somewhat confusingly, the majority opinion defends its seeming undercutting of Hinds, stating that, “Hinds . . . didn’t purport to grant blanket RCRA immunity for anyone outside of the ‘waste disposal process,’ as the dissent contends. Nor did it address the meaning of ‘contribution’ in the context of ‘transporter’ liability.” However, given the Ninth Circuit’s explicit reference to contributing to transportation in the Hinds decision, the Vacaville opinion appears to significantly undercut the holding in Hinds, or at least to significantly narrow it.
Furthermore, as noted above, the water transported by the City complies with both federal (less restrictive) and State MCLs for total chromium (no specific MCL exists for hexavalent chromium). However, River Watch views these standards as too lenient, and therefore, alleges that the City’s water poses a danger to human health. The dissent noted its view that the appropriate way to address this concern is to seek revision of the MCL through a challenge to the applicable SDWA standards, which are regularly reviewed and provide citizens adequate opportunity for such a challenge, rather than through a RCRA suit.
In fact, RCRA’s anti-duplication provision seeks to prevent River Watch’s precise litigation posture by precluding RCRA’s application to “any activity or substance which is subject to” the SDWA (among other environmental laws), to the extent that such application would be “inconsistent with” the requirements of the act (or other enumerated acts). (42 U.S.C. § 6905(a).) Given that the City is distributing water that complies with the directly applicable SDWA MCL, holding the City liable under RCRA for creating a substantial endangerment to human health, which MCLs explicitly seek to prevent, would be significantly at odds with the SDWA. However, neither the majority nor the dissent reach this issue, leaving the City to further that theory when the case returns back to the district court.
Entities that move water around the State of California including, but not limited to, operators of public water supplies regulated under the SDWA, would be wise to carefully watch or even seek to participate in these proceedings given the wide-ranging implications of this case, and potentially future decisions issued in connection with the Vacaville case.