California River Watch’s Response

Panoramic view of Lagoon Valley Park in Vacaville, California.
Panoramic view of Lagoon Valley Park in Vacaville, California. (royalty free image from Deposit Photos)

River Watch chose to apply RCRA in the Vacaville case simply because the Safe Drinking Water Act (SDWA) provided little protection for drinking water. The SDWA includes limits for only 94 water contaminants. The EPA has not added any chemicals to the list since 2006, and only added 4 chemicals between 1998 and 2006. In 2010, responding to numerous petitions pursuant to set a limit for hexavalent chromium, the EPA released a draft of the scientific human health assessment for public comment and external peer review. The draft assessment has never been finalized.

In the National Resources Defense Council’s (“NRDC”) report, Watered Down Justice, the NRDC showed that drinking water violations increased in communities of color and low-income and in areas with more non-English speaking persons. Correcting these problems was found to take longer in these communities, amplifying already high and inequitable environmental burdens. The Flint, Michigan water crisis is a recent example.

Approximately 100,000 chemicals have been registered for use in the United States over the past 30 years, including substances listed in the EPA’s Toxic Substances Control Act inventory. Each year industry adds an additional approximately 1,000 man-made chemicals which will be released into the environment at some time in the future.  As such it is no surprise – but horrible nonetheless – that a baby born in America today has as many as 200 man-made chemicals in its body. If RCRA cannot be used to prevent Vacaville from handling and transporting hexavalent chromium at levels that may present an endangerment, then neither can the statute be used if a water supplier were transporting perchlorate, ricin, chlorine trifluoride or any number of toxic substances found in drinking water simply because none of them, nor thousands of other toxic substances, are on the SDWA’s short list.

It seems obvious to River Watch that environmental laws were enacted to protect the environment and public health.  However, the courts, for either political or personal reasons, seem to view their role as to limit the scope of environmental laws along with voting rights and personal choice while doing little or nothing to limit gun violence, corporate corruption or the buying and selling of American democracy. The Ninth Circuit panel initially ruled in River Watch’s favor but were obviously lobbied successfully to change its decision.

Background on the Resource Conservation and Recovery Act

Congress, in fulfilling its duty to provide for the general welfare, propagated a comprehensive set of interconnected environmental laws.  The Resource Conservation and Recovery Act (RCRA) followed the passage of the Clean Air Act (1970) and Clean Water Act (1972).  Congress intended for RCRA to close the triad of protection and regulate harmful wastes. When RCRA was enacted in 1976, Congress stated its critical goal: “The Committee believes that the approach taken by this legislation eliminates the last remaining loophole in environmental law . . .”

Congress was specifically concerned about the contamination of drinking water and drinking water sources, finding elimination of the source of pollution to be much more cost effective than the long term effects of the pollution.

By the early 1980s, the EPA had accomplished very little toward meeting RCRA’s goals. The environmental harm associated with hazardous waste had gained national attention in the early 1970s with the story of ‘Love Canal’ which revealed serious gaps in the 1976 RCRA legislation. Senator Chafee remarked that the “current RCRA program is riddled with loopholes, inadequate EPA enforcement and agency delay.”

In 1984, Congress enacted the Hazardous and Solid Waste Amendments (HSWA) to address these major problems.  The intent of the HSWA was to stop the insidious creep of wastes into our businesses, schools, homes and bodies that may present an imminent and substantial endangerment to health or the environment. The HSWA introduced a new provision which extended to citizens the right to bring suit against a polluter who may be causing an imminent and substantial endangerment to health or the environment.  Instead of waiting until the EPA identified and regulated a specific waste, Congress targeted all waste that “may present an imminent and substantial endangerment to health or the environment.” According to the congressional report, Congress “sought to invoke nothing less than the full equity powers of the federal courts in the effort to protect public health, the environment, and public water supplies from the pernicious effects of toxic wastes. Courts should not undermine the will of Congress by either withholding relief or granting it grudgingly.”

According to the Ninth Circuit the “1984 Amendments added subsection B in an effort to invigorate citizen litigation,” conferring direct authority for citizens to bring suits to enjoin endangerments to health or the environment related to solid or hazardous waste, regardless of EPA regulations.” Until recently courts have broadly construed RCRA to carry out its intended purpose –  to protect health and the environment from waste that may present an imminent and substantial endangerment.  Preventing Vacaville from transporting high levels of hexavalent chromium-contaminated potable water fits squarely within this mandate.