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Ninth Circuit reverses itself, upholds dismissal of lawsuit over tainted water

The appellate panel changed its mind whether there was a triable issue that a Northern California city was transporting hazardous waste under the law when it wasn’t actively involved in removing the waste to a disposal site.

(CN) — Following an outcry by public water agencies, a panel of the Ninth Circuit Court of Appeals reversed itself and agreed that a Northern California city can't be held liable for transporting hazardous waste because of the presence of hexavalent chromium, commonly called chromium 6, in its drinking water.

The panel on Friday issued a superseding opinion that affirmed a judge's ruling that the city of Vacaville can't be held liable under the Resource Conservation and Recovery Act for the alleged elevated levels of the carcinogen, but it based its decision on a different element of the statute than was at issue last year when the panel overturned the judge's ruling.

In its new ruling, the panel said that the text of the federal statute defines “transportation” as part of the waste disposal process, such as shipping waste to hazardous waste treatment, storage or disposal facilities, but not as mere "conveyance" of hazardous waste. But in its 2017 lawsuit, California River Watch never claimed Vacaville was actively involved in shipping hazardous waste, according to today's decision.

"Under River Watch’s theory of liability, hexavalent chromium seeped through groundwater into the city’s wells, and the city incidentally carried the waste through its pipes when it pumped water to its residents," Circuit Judge Patrick Bumatay, a Donald Trump appointee, wrote for the majority. "Under this theory, the City could not be held liable for 'transportation."

Circuit Judge A. Wallace Tashima, a Bill Clinton appointee, who last year had disagreed with reinstating the lawsuit, said in a separate opinion that he concurred with the judgment but on different legal grounds. Since Vacaville's water complies with both federal and state standards, River Watch should have challenged the Environmental Protection Agency's standards if it found these standards too lenient, the judge said, instead of using a statute that regulates the disposal of hazardous waste in which the city had no part.

"The panel decision was based upon an issue that was not part of the district court's holding and was not raised by Vacaville in the district court case but only on appeal," Jack Silver, an attorney for River Watch said. "The panel's decision was not based upon any prior case law but upon a definition of transportation that is contrary to past decisions by this court."

River Watch hasn't yet decided whether to request a rehearing en banc or whether to file a petition for a writ of certiorari with the U.S. Supreme Court, Silver said.

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 gets about 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 has disputed 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.

In September of last year, the Ninth Circuit panel in a 2-1 decision overturned the judge's finding that River Watch hadn't shown chromium 6 was a "solid waste" under the RCRA. The panel also said that there was a triable issue of fact, which means it can't be decided by the judge as a matter of law, whether Vacaville was a "transporter" of solid waste under the statute.

That part of the decision prompted an outcry by, among others, the Association of California Water Agencies, which said the majority’s unprecedented interpretation of the RCRA subjected water utilities to liability as “transporters” of hazardous waste "when they innocently encounter waste disposed of by third parties with whom they have no relationship and over whom they have no control."

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

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