Ninth Circuit Court of Appeals Reconsiders Meaning of “Transportation” Under RCRA
Earlier this month, the Ninth Circuit Court of Appeals filed a new opinion in the case of California River Watch v. City of Vacaville, superseding its prior opinion from September of 2021 and reconsidering the meaning of “transportation” for liability purposes under the Resource Conservation and Recovery Act (RCRA). In the original complaint, California River Watch (River Watch) claimed that the City of Vacaville’s (City) water wells were contaminated with hexavalent chromium (also known as Chrom-6), a carcinogen known to cause significant health risks, and that the City’s delivery of water contaminated with Chrom-6 created an imminent and substantial endangerment to human health and the environment. The district court granted the City’s motion for summary judgment, stating that the City’s water deliveries did not qualify as discarding solid waste under RCRA. On appeal, however, the Ninth Circuit shifted the debate to focus on whether the City’s water deliveries constituted “transportation” under RCRA.
In discussing this point, the panel for the Ninth Circuit held that in order to establish liability under RCRA, three elements must be satisfied: (1) that the defendant has contributed to the past or is contributing to the present handling, treatment, transportation, or disposal of certain material; (2) that this material constitutes “solid waste” under RCRA; and (3) that the solid waste may present an imminent and substantial endangerment to health or the environment. While the district court ruled in favor of the City on the grounds that RCRA’s “fundamental requirement that the contaminant be ‘discarded’” was not satisfied, the panel for the Ninth Circuit held that River Watch did in fact create a triable issue on whether the Chrom-6 constitutes “discarded material,” thus meeting RCRA’s definition of “solid waste.”
River Watch further argued that the City should be liable because it physically moved the waste, i.e. the water contaminated with Chrom-6, by pumping it through its water-supply system. The panel for the Ninth Circuit, however, concluded that “RCRA’s context makes clear that mere conveyance of hazardous waste cannot constitute ‘transportation’ under the endangerment provision.” Citing to numerous examples on how RCRA uses the term “transport” throughout its text, the panel explained that “transportation refers to the specific task of moving waste in connection with the waste disposal process.” The panel further explained that the court has previously held that “disposal” as used in the endangerment provisions for citizen suits requires a defendant to be actively involved in the waste disposal process to be liable under RCRA. Accordingly, the panel reasoned that the best reading of RCRA is that the term “transportation” must also have a direct connection to the waste disposal process, e.g. shipping waste to hazardous waste treatment, storage, or disposal facilities.
The Ninth Circuit panel ultimately concluded that the City does not have the necessary connection to the waste disposal process to be held liable for “transportation” under RCRA (42 U.S.C. § 6972(a)(1)(B)) and affirmed the district court’s grant of summary judgment for the City.
Please feel free to contact the authors of this Alert or your regular AALRR counsel with any questions.