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Ninth Circuit Reverses Previous Decision On RCRA Liability For Water Supplier – Water

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On July 1, 2022 a panel of the Ninth Circuit issued a superseding opinion in California
River Watch v. City of Vacaville
, Appeal No. 20-16605,
withdrawing its previous opinion in the same case and reaching the
opposite result. The case is a rare example of a court reversing
itself, and has important implications for water suppliers in
California and nationwide.

In California River Watch, the plaintiff sought to
impose RCRA liability on a water supplier based on the presence of
hexavalent chromium in the water it supplied to customers, despite
the fact that the water complied with the Maximum Contaminant Level
(MCL) for chromium established under the Safe Drinking Water Act
(SDWA). The district court had dismissed California River
Watch’s claim in July of 2020, finding that the trace amounts
of hexavalent chromium in Vacaville’s water were not
“solid waste” or “hazardous waste” as defined
in RCRA, and so could not result in RCRA liability.

However, on September 29, 2021, the original Ninth Circuit
panel first reviewing the case issued an opinion granting River
Watch’s appeal, and sent the case back to the lower court for a
trial to determine whether the hexavalent chromium in
Vacaville’s water could be traced to waste disposal at a
contaminated site and therefore could trigger RCRA liability. 14
F.4th 1076. One dissenting judge on the first panel would have
denied River Watch’s appeal and found that the case was
controlled by the Court’s previous decision in Hinds
Investments, L.P. v. Angioli
, 654 F.3d 846, 851 (9th Cir.
2011), which held that RCRA’s citizen-suit provision
“requires that a defendant be actively involved in or have
some degree of control over the waste disposal process to be liable
under RCRA.”

The City of Vacaville petitioned the Ninth Circuit for rehearing
en banc, and its briefs addressed both the dissent’s
point and the argument that RCRA’s anti-duplication provision
barred California River Watch’s suit because Vacaville’s
water complied with the MCL. Several organizations submitted amicus
briefs on both sides, including the Natural Resources Defense
Council, the National League of Cities, the League of California
Cities, and several groups representing water supply agencies.

The fact that several groups submitted amicus briefs underscores
that this case could have significant implications for water
suppliers both in California and nationwide. Under the Circuit
panel’s original opinion, a water supplier could have RCRA
liability for delivering water that complies with the MCL, based
solely on whether a constituent of that water might have come from
another party’s disposal of hazardous waste. That
could have subjected water suppliers nationwide to RCRA liability,
and could have result in inconsistent requirements for water
suppliers depending on whether a plaintiff could plausibly identify
a contaminated site and a responsible party as the source of a
chemical constituent found in water supply wells.

The amicus briefs by water supply agencies asked the Circuit to
protect water suppliers against that possibility by using
RCRA’s anti-duplication provision; if the Court had agreed,
that provision would have barred a RCRA suit because
Vacaville’s water complies with the relevant MCL. However, the
panel did not reach that argument. (The relevant MCL in this case
is for total chromium,which includes hexavalent chromium as well as
other forms of chromium; the designation of an MCL for total
chromium, but not hexavalent chromium specifically, could explain
why the district court and the Circuit did not rely on RCRA’s
anti-duplication provision. California is in the process of promulgating an
MCL specific to hexavalent chromium
after the previous MCL for
hexavalent chromium was invalidated in 2017, but has not done so
yet.)

Instead, the panel’s superseding opinion took the rare step of
withdrawing and replacing its previous decision interpreting RCRA.
The two judges from the original panel who had previously granted
California River Watch’s appeal stated that the City’s
further briefing had persuaded them to reverse their holding and
find that RCRA liability for “transportation” of
hazardous waste requires a direct connection to the waste disposal
process – “such as shipping waste to hazardous waste
treatment, storage, or disposal facilities” (Opinion p. 17). The superseding opinion then
held that the City’s conveyance of drinking water containing
trace amounts of hexavalent chromium does not make the City a
“transporter” of wastes under RCRA’s definition.
(Id. at 18.) The panel therefore affirmed the district
court’s grant of summary judgment to the City. The superseding
opinion should protect water suppliers from potential RCRA
transporter liability for their distribution of water.

Judge Tashima, who had dissented from the panel’s original
opinion, filed a concurring opinion reiterating that he believed
the Hinds decision required denial of the appeal. Judge
Tashima also pointed out that accepting California River
Watch’s argument would have meant RCRA liability for a
homeowner watering their plants using Vacaville’s water, or a
driver whose tires picked up a few grains of soil when passing a
contaminated site, and opined that this went far beyond
Congress’s intent in adopting RCRA.

The Court also dismissed the petition for rehearing en
banc
as moot, but noted that California River Watch could file
a new petition for rehearing in accordance with the court rules. It
is likely that California River Watch will again appeal the
dismissal of its claims, either by filing its own petition for
rehearing en banc or seeking review in the United States
Supreme Court. Nossaman will continue to monitor developments in
this case.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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