The panel vacated the district court’s summary judgment in favor of the City of Vacaville and remanded for further proceedings in a citizen suit brought by California River Watch under the Resource Conservation and Recovery Act.
River Watch claimed that the City’s water wells were contaminated by a carcinogen called hexavalent chromium, which in turn was transported to the City’s residents through its water distribution system. River Watch alleged that the City thus was contributing to the transportation of a solid waste in violation of RCRA. The district court concluded that the hexavalent chromium was not a “solid waste” under RCRA because River Watch did not show that it was a “discarded material.”
The panel concluded that River Watch sufficiently raised before the district court, and therefore did not forfeit, the argument that the hexavalent chromium was “discarded material” that allegedly had migrated through groundwater from the “Wickes site,” where it had been dumped by operators of wood treatment facilities.
The panel held that River Watch created a triable issue on whether the hexavalent chromium was “discarded material” by presenting evidence that when the hexavalent chromium was discharged into the environment after the wood treatment process, it was not serving its intended use as a preservative, and it was not the result of natural wear and tear. Instead, the hexavalent chromium was leftover waste, abandoned and cast aside by the facilities’ operators.
The panel concluded that there also was a triable issue whether the City was a “past or present transporter” of solid waste. The panel held that RCRA does not require that the “transporter” of the solid waste must also play some role in “discarding” the waste.
Dissenting, Judge Tashima wrote that under Hinds Investments, L.P. v. Angioli, 654 F.3d 846 (9th Cir. 2011), the City was not liable because it had no involvement in the waste disposal process, and did not do anything to cause the contamination of its water. Judge Tashima wrote that he also would affirm based on waiver because River Watch raised an entirely new theory on appeal.
Jack Silver (argued), Law Office of Jack Silver, Sebastpolo, California; David J. Weinsoff, Law Office of David J. Weinsoff, Fairfax, California; for Plaintiff-Appellant.
Gregory J. Newmark (argued) and Shiraz D. Tangri, Meyers Nave Riback Silver & Wilson, Los Angeles, California, for Defendant-Appellee
PDF 9th Circuit Decision: California River Watch vs City of Vacaville