Ninth Circuit Reverses Previous Decision On RCRA Liability For Water Supplier

• Published date: 18 July 2022
• Subject Matter: Environment, Litigation, Mediation & Arbitration, Energy and Natural Resources, Environmental Law, Trials & Appeals & Compensation, Waste Management, Water
• Law Firm: Nossaman LLP
• Author: Mr Edward Roggenkamp and Mary Lynn K. Coffee

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...