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Thursday, March 28, 2024 | Back issues
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Ninth Circuit refreshes fight over city’s chromium 6-tainted water

The majority said a closer look at accusations the city of Vacaville's water system violates hazardous waste laws is warranted.

(CN) — Reviving a fight over tap water, a Ninth Circuit panel on Wednesday found a Northern California city must face claims it’s breaking hazardous waste laws by selling drinking water tainted with an infamous carcinogen featured in the film “Erin Brockovich.”

Though the city of Vacaville’s supply meets federal and state drinking water standards, some of the water sourced from its groundwater wells contains hexavalent chromium, commonly called chromium 6. The city is in the process of cleaning the wells and contends its supply is safe for its over 90,000 residents, but an environmental group disagrees.  

Calling the city water an “imminent threat” to public health, California River Watch sued the city in 2017 in federal court. Because the drinking water doesn’t violate existing standards — there is no current standard for chromium 6 — the Sonoma County-based environmental group is digging deeper to try and hold the city liable.   

Instead of a typical drinking water lawsuit, the group argues the city has been breaking the federal Resource Conservation and Recovery Act by knowingly transporting a carcinogen through its water pipes.

Three years later, a federal judge in Sacramento tossed the case, ruling the Resource Conservation and Recovery Act is intended to regulate hazardous waste and not the city’s routine water production process.  

But on Wednesday the Ninth Circuit panel recycled the matter in a 2-1 decision, finding California River Watch’s argument that chromium 6 is a solid waste deserves to be rescrubbed.

“In the light most favorable to River Watch, a triable issue exists as to whether the city is a ‘past or present transporter’ of solid waste,” U.S. Circuit Judge Patrick Bumatay wrote for the majority.

The contaminant occurs naturally in rocks and soils and is used to make stainless steel, paints and plastics. Prolonged exposure to chromium 6 increases the risk of lung cancer and asthma, particularly when it’s inhaled.

River Watch claims the source of the city’s problem is a former wood preserving plant that was classified as a federal hazardous waste site in 1980. The business dumped substances containing chromium 6 for years, and the carcinogen eventually oozed into the city’s nearby groundwater wells.

Vacaville sources approximately 35% of its water from groundwater wells, with the rest coming from nearby Lake Berryessa and the State Water Project. The city argued in court that it is immune to the suit as it had no role in causing the contamination. The city disputes the group’s contamination theory, saying chromium 6 ends up in its groundwater naturally and that only two of its wells are near the old wood processing site.

Though the trial court judge called the case “ambiguous” and scoffed at the group’s expert testimony, Bumatay, a Donald Trump appointee, ordered a closer look into the city’s role in the ongoing water debacle. The panel vacated U.S. District Judge Kimberly Mueller’s 2020 ruling and remanded the case.

“That the city may be innocent of the activity at the Wickes site does not preclude it from RCRA liability as a transporter,” Bumatay wrote.

In an email to Courthouse News, the city’s attorney said the environmental group's "hired" expert witness' story conflicted with the opinion of a California Department of Toxic Substances Control employee who testified he didn't believe the processing site was responsible for contaminating nearby wells.

"We disagree with the majority opinion’s interpretation of ‘solid waste’ under RCRA," said Gregory Newmark of Meyers Nave.  "Even if hexavalent chromium from the listed RCRA waste at the Wickes Site migrated to the city’s wells, which we can prove did not happen, the city never transported that wood preservative solid waste from the site." 

U.S. Circuit Judge A. Wallace Tashima dissented, accusing River Watch of reframing its argument on appeal. He blasted the group for its “gamesmanship” and said expanding the scope of the Resource Conservation and Recovery Act could lead to “nonsensical” future litigation.

“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,” the Bill Clinton appointee wrote.

The city, located 55 miles northeast of San Francisco, tried to invoke a similar “absurdity doctrine” argument but it fell short with the majority as Judge Bumatay floated the fight over the bedeviling carcinogen back downstream.  

“It is difficult to imagine who would be substantially endangered by the de minimis amount of solid waste on a traveling car, in a cup of water, or on a watered plant. We therefore doubt that the scenarios envisioned by the city and the dissent would be cognizable under our reading of RCRA,” he wrote.

U.S. District Judge Douglas Rayes, a Barack Obama appointee sitting by designation from the District of Arizona, rounded out the panel.

The environmental group predictably celebrated the ruling but lamented the fact the city continues to spend taxpayer dollars on the case: it estimates the city has already racked up over $500,000 in legal fees.

"The case now goes back to the district court and likely to trial which will cost the taxpayers hundreds of thousands of dollars more," said the group's attorney Jack Silver. "Given the fact that River Watch offered, on more than one occasion, to waive fees in exchange for Vacaville providing its potable water consumers publicly available information as to the dangers of consuming hexavalent chromium, there is a serious issue here concerning the misuse of funds in order to keep the public in the dark."  

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Categories / Appeals, Environment

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