07.07.2022

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Updates

The U.S. Court of Appeals for the Ninth Circuit, on July 1, 2022, took the extraordinary step of reversing its prior decision in California River Watch v. City of Vacaville. The Ninth Circuit ruled that “transportation” under the citizen suit provision of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6901 et seq., requires active participation in the waste disposal process. In its initial opinion, a three-judge panel ruled in a 2-1 decision that a water utility could be liable for contributing to the transportation of a hazardous waste that a third party improperly discarded into the utility’s water treatment system, even where the water complied with all applicable drinking water standards. Cal. River Watch v. City of Vacaville, 14 F.4th 1076, 1081-82 (9th Cir. 2021), withdrawn and superseded on denial of reh'g en banc, No. 20-16605, 2022 WL 2381056 (9th Cir. July 1, 2022). The initial ruling would have posed significant difficulties not only for water systems throughout the country, but also for any parties who play any role in delivering or withdrawing water, as it would have exposed such parties to RCRA citizen suit liability for contamination over which they had no control.

In reversing its initial opinion from September 2021, the Ninth Circuit chose to interpret the term “transportation” within the specific context of RCRA rather than giving the term its ordinary, broader meaning. The court explained that this approach allowed the court to better interpret RCRA as “a harmonious whole,” and that reversing the prior holding was justified because it is “never too late to surrender former views to a better considered position.” Cal. River Watch v. City of Vacaville, No. 20-16605, 2022 WL 2381056, at *7 n.3 (9th Cir. July 1, 2022).

RCRA Citizen Suits

The City of Vacaville case involves application of RCRA’s citizen suit provision. RCRA sets up an extensive regulatory framework that gives the U.S. Environmental Protection Agency (EPA) the authority to control and regulate hazardous waste from “cradle-to-grave.” Specifically, Subtitle C of RCRA imposes detailed requirements on the hazardous waste disposal process, tracking hazardous waste from generation to transportation to disposal and requiring permits for various categories of hazardous waste management facilities. 42 U.S.C. § 6921(a). In addition to the Subtitle C regulatory program, RCRA’s citizen suit provision gives broad authority to any person to file a citizen suit against, among other parties, any past or present generators, transporters, and owners or operators of treatment, storage, or disposal facilities who have “contributed or who [are] 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) (emphasis added). There is no statutory definition of “transport,” “transportation,” or “contributing to” in RCRA. However, under RCRA’s Subtitle C regulatory program, a “transporter” is part of the “cradle-to-grave” process as an entity or person who engages with the generator of the waste and undertakes to transport the waste to a licensed waste disposal facility.

City of Vacaville Case Background

In City of Vacaville, plaintiff California River Watch argued that the City of Vacaville (the City) “contributed to” the “transportation” of a solid waste by supplying water contaminated with hexavalent chromium to its customers, even though the City had no involvement with the disposal of the hexavalent chromium. California River Watch conceded that the alleged source of the hexavalent chromium was a former wood treatment plant located a mile or more from the City’s wells. Further, the City was in compliance with all drinking water standards, as it met the standard for chromium and there currently is no separate federal or state standard for hexavalent chromium.

California River Watch argued that the City’s RCRA citizen suit liability was based on its movement of hexavalent chromium by pumping it through the City’s water supply system, which, it contended, fits the ordinary meaning of the term “transportation.” The City countered that the term “transportation” under the Ninth Circuit’s RCRA case law and in the context of RCRA’s citizen suit provision requires a direct connection to the waste disposal process, similar to the subtitle C regulatory program, not just incidental movement of the waste that had been disposed of by an unrelated party through the City’s water supply system.

The Ninth Circuit’s Initial, Superseded Decision

In its initial 2-1 decision, a three-judge panel sided with California River Watch and held that a water utility could be liable for “contributing to … the transportation” of hexavalent chromium that a third party improperly discarded into the utility’s water treatment system. Cal. River Watch v. City of Vacaville, 14 F.4th at 1081-82. Absent a statutory definition of the term “transportation” in RCRA, the court turned to the term’s ordinary meaning—as defined in the Oxford English Dictionary—to hold that “transportation” means the “action or process of transporting; conveyance (of things or persons) from one place to another.” Id. at 1081. Based on this definition, the panel majority reasoned that “nothing in RCRA’s text suggest that the ‘transporter’ of the solid waste must also play some role in ‘discarding’ the waste.” Id.

In reaching this conclusion, the panel majority distinguished what the City argued was clear, analogous Ninth Circuit precedent: Hinds Investments, L.P. v. Angioli, 654 F.3d 846, 851 (9th Cir. 2011). In Hinds, the court held in the context of RCRA citizen suit generator liability that, because RCRA does not define the term “contribution,” a defendant must be “actively involved in or have some degree of control over the waste disposal process to be liable under RCRA” for “contributing to” to the handling, storage, treatment, transportation, or disposal of hazardous waste. The City of Vacaville panel majority found that the meaning for the term “contribution” in the generator context did not extend to the non-generator context at issue in City of Vacaville. 14 F.4th at 1082 n. 6. Judge Tashima dissented on this basis, agreeing with the City that Hinds required that all types of RCRA citizen suit defendants—not just generators— “be actively involved in or have some degree of control over the waste disposal process” to be liable. Judge Tashima further highlighted the absurdity of the panel majority’s decision in his dissent:

If the City is transporting solid waste, then so too is the Vacaville homeowner watering plants with a garden hose or handing a glass of tap water to a friend. And so too is a motorist who picks up a few grains of soil while driving on a dirt road near the … site … If the City is transporting solid waste, then so too is every homeowner, farmer, rancher, municipal water authority, or agricultural irrigation district drawing groundwater or water from a contaminated aquifer. Id. at 1083 (Tashima, J., dissenting).

The panel majority brushed aside the City’s argument that this interpretation of the term “transportation” would lead to absurd results, finding that other legal concepts such as Article III standing place sufficient limitations on RCRA liability.

The Ninth Circuit’s Reversal

In reversing its prior decision, the Ninth Circuit panel majority did not rely on Hinds or the absurdity highlighted in Judge Tashima’s original dissent, but instead on its revised interpretation of the meaning of the term “transportation.” In its new decision, the panel majority—comprised of the same two judges as the initial panel majority, with Judge Tashima writing separately to concur only in the judgment—reinterpreted the term “transportation” within the context of RCRA, informed by its Subtitle C definition, instead of simply giving the term its dictionary meaning. The panel majority explained that the City’s briefing had persuaded it that RCRA “repeatedly uses the term ‘transportation’ to describe movement in direct connection with the waste disposal process.” Cal. River Watch v. City of Vacaville, 2022 WL 2381056, at *5 (emphasis added). So, if the court were to interpret the term “transportation” in the citizen suit provision to have a different, broader meaning—as it did in its prior decision—the court would give the term inconsistent meanings across different parts of the statute. Id. at *7 n.3. Given this context, the panel majority held that it must look beyond the dictionary meaning of “transportation,” and that “mere conveyance of hazardous waste cannot constitute ‘transportation’” under RCRA’s citizen suit provision. Id. at *5.

The panel majority acknowledged that this new interpretation conflicted with its prior interpretation but explained that there is “no reason why [we] should be consciously wrong today, because [we were] unconsciously wrong yesterday.” Id. at *7 n.3. By interpreting the term “transportation” within the context of RCRA and avoiding giving the term inconsistent meanings across the statute, the panel majority reasoned that it was taking “a better considered position” and interpreting RCRA as “a harmonious whole.” Id.

Meanwhile, Judge Tashima wrote a separate, concurring opinion that retained his original position. He concurred with the panel majority’s judgment that the City could not be liable under RCRA, but based his reasoning on Hinds and absurdity rather than on the meaning of “transportation.” Id. at *9 (Tashima, J., concurring).

Impact of the Ninth Circuit’s Reversal

Under the original decision, many parties throughout the country would have been exposed to RCRA citizen suit liability for contamination over which they had no control, including water systems in compliance with drinking water standards and farmers, ranchers, and homeowners who move or withdraw water.

The Ninth Circuit’s new panel decision, holding instead that “transportation” under RCRA’s citizen suit provision requires active participation in the waste disposal process, heads off these unwieldy problems. Water utilities and many others will undoubtedly agree that the Ninth Circuit’s new decision is “a better considered position.”

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