RCRA Liability: A Possibility When Drinking Water Is Delivered

The Ninth Circuit Court of Appeals decision in California River Watch v. City of Vacaville 2021 WL 4449231 (River Watch) has potentially made it possible for a person to assert liability against a water provider, for example, a municipal water agency, for sending water containing any amount of a pollutant to a consumer. Whether or not the Court intended to do so, the outcome of this case could mean that notwithstanding compliance, primarily the Federal Safe Drinking Water Act (Act) 42 U.S.C. § 330f et seq. which sets forth health-based maximum levels of contaminants allowed in drinking water, liability of a water provider can potentially exist. The legal basis for this potential liability lies with the Resource Conservation and Recovery Act (“RCRA”) 42 U.S.C. § 6972 et seq. RCRA regulates the generation, transportation, storage, and disposal of solid hazardous waste. This law gives the EPA jurisdiction to control and monitor hazardous waste from the “cradle to the grave.”

RCRA also creates a private cause of action for citizens to seek relief against present or future risks of “imminent harms” to health or the environment. Ecological Rts. Found. v. Pac. Gas & Elec. Co., 874 F.3d 1083, 1089 (9th Cir. 2017). Such an action allows “any person” to file suit against any other “person, including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed to or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment[.]” 42 U.S.C. § 6972(a)(1)(B). A RCRA endangerment is substantial if it is “serious” or “if there is some reasonable cause for concern that someone or something may be exposed to a risk of harm…if remedial action is not taken.” RCRA “does not require quantification of the endangerment (e.g. proof that a certain number of persons will be exposed) …or that a water supply will be contaminated to a specific degree.” An endangerment is “imminent” if it “threatens to occur immediately,” even “though the harm may not be realized for years.” A finding of immanency does not require showing that actual harm will occur immediately as long as the risks of threatened harm are present.

If a court finds that an imminent and substantial endangerment exists, it has broad authority to issue injunctions to remedy the threatened harms, failure of which may result in various court-ordered sanctions including penalties of up to $72,218 per day, per violation. The court could also order payment of attorney fees to a private citizen group which brought the action

The River Watch facts are relatively simple; the City of Vacaville (City) supplies water to its citizens which the parties concede met all federal and state health-based laws, rules and regulations, from various groundwater wells. The water pumped from those wells contains hexavalent chromium, a known human carcinogen. That substance was traced to a contaminated industrial site which has been the subject of federal and state investigation and remediation since the 1980’s. The City was sued by California River Watch (River Watch) under RCRA, alleging that the City is “contributing to” the “transportation” of hexavalent chromium, a “solid . . . waste which may present an imminent and substantial endangerment to health or the environment.” 42 U.S.C. § 6972(a)(1)(B).

In the United States District Court, the parties filed cross-motions for summary judgment. The District Court granted the motion of the City and River Watch appealed the District Court’s order. In granting River Watch’s appeal, the Court of Appeals held that a factual dispute regarding one or more relevant legal issues must be resolved before the trial court could determine liability: i.e., whether the hexavalent chrome in the wells is a solid waste which was not naturally occurring and whether such solid wastes were transported through the City’s water supply system. Note that the statutory claim asserted by River Watch (i.e., the City contributed to transportation of solid waste) is very different than a claim that the City acted as a “Hazardous Waste Transporter” under the RCRA rules regulating waste management.

In the appeal, the Court did not discuss the issue of whether or not meeting the Act’s standards is a defense in an RCRA case. Apparently, this issue was not raised in the District Court. Given that, the issue could not be litigated in the Court of Appeals.

River Watch is not the typical RCRA case because it centered around the liability of a public water system, fully compliant with the Act and other water-related health laws, rules, and regulations. The question this case raises is how there could be any imminent and substantial endangerment to health or the environment when the contaminant level does not exceed the specified levels set forth based on law and science. If not in the remand, this issue may be explored in this or other cases in the future.

The views and opinions expressed in the article represent the view of the author and not necessarily the official view of Clark Hill PLC. Nothing in this article constitutes professional legal advice nor is intended to be a substitute for professional legal advice.