California River Watch v. City of Vacaville ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CALIFORNIA RIVER WATCH, No. 20-16605
Plaintiff-Appellant,
D.C. No.
v. 2:17-cv-00524-
KJM-KJN
CITY OF VACAVILLE,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, Chief District Judge, Presiding
Argued and Submitted June 14, 2021
San Francisco, California
Filed September 29, 2021
Before: A. Wallace Tashima and Patrick J. Bumatay,
Circuit Judges, and Douglas L. Rayes, * District Judge.
Opinion by Judge Bumatay;
Dissent by Judge Tashima
*
The Honorable Douglas L. Rayes, United States District Judge for
the District of Arizona, sitting by designation.
2 CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE
SUMMARY **
Environmental Law
The panel vacated the district court’s summary judgment
in favor of the City of Vacaville and remanded for further
proceedings in a citizen suit brought by California River
Watch under the Resource Conservation and Recovery Act.
River Watch claimed that the City’s water wells were
contaminated by a carcinogen called hexavalent chromium,
which in turn was transported to the City’s residents through
its water distribution system. River Watch alleged that the
City thus was contributing to the transportation of a solid
waste in violation of RCRA. The district court concluded
that the hexavalent chromium was not a “solid waste” under
RCRA because River Watch did not show that it was a
“discarded material.”
The panel concluded that River Watch sufficiently raised
before the district court, and therefore did not forfeit, the
argument that the hexavalent chromium was “discarded
material” that allegedly had migrated through groundwater
from the “Wickes site,” where it had been dumped by
operators of wood treatment facilities.
The panel held that River Watch created a triable issue
on whether the hexavalent chromium was “discarded
material” by presenting evidence that when the hexavalent
chromium was discharged into the environment after the
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE 3
wood treatment process, it was not serving its intended use
as a preservative, and it was not the result of natural wear
and tear. Instead, the hexavalent chromium was leftover
waste, abandoned and cast aside by the facilities’ operators.
The panel concluded that there also was a triable issue
whether the City was a “past or present transporter” of solid
waste. The panel held that RCRA does not require that the
“transporter” of the solid waste must also play some role in
“discarding” the waste.
Dissenting, Judge Tashima wrote that under Hinds
Investments, L.P. v. Angioli, 654 F.3d 846 (9th Cir. 2011),
the City was not liable because it had no involvement in the
waste disposal process, and did not do anything to cause the
contamination of its water. Judge Tashima wrote that he also
would affirm based on waiver because River Watch raised
an entirely new theory on appeal.
COUNSEL
Jack Silver (argued), Law Office of Jack Silver, Sebastpolo,
California; David J. Weinsoff, Law Office of David J.
Weinsoff, Fairfax, California; for Plaintiff-Appellant.
Gregory J. Newmark (argued) and Shiraz D. Tangri, Meyers
Nave Riback Silver & Wilson, Los Angeles, California, for
Defendant-Appellee.
4 CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE
OPINION
BUMATAY, Circuit Judge:
The Resource Conservation and Recovery Act seeks to
minimize the dangers accompanying hazardous waste
disposal. 42 U.S.C. § 6902(b). To that end, the Act enables
any person to sue any entity that is contributing to the
transportation of dangerous solid waste. Id. § 6972(a). In
this case, a nonprofit organization called California River
Watch claims that the City of Vacaville, California is
violating the Act. River Watch claims that the City’s water
wells are contaminated by a carcinogen called hexavalent
chromium. That carcinogen, River Watch says, is in turn
transported to the City’s residents through its water-
distribution system. We must decide whether the hexavalent
chromium is solid waste under the Act.
I.
Hexavalent chromium is a human carcinogen. When
inhaled, consumed orally, or exposed to the skin, it is known
to cause significant health risks, including cancer.
From about 1972 to 1982, companies like Pacific Wood
Preserving and Wickes Forest Industries, Inc., operated
wood treatment facilities in Elmira, California. It was
common for waste products from these companies to contain
hexavalent chromium. In particular, Wickes is known to
CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE 5
have dumped a massive amount of hexavalent chromium in
the ground near Elmira, California (“the Wickes site”). 1
As a result, the Wickes site was identified and listed as a
federal hazardous waste site in 1980. Several years later, the
site was found to have contaminated three drinking-water
wells nearby, including one at Elmira Elementary School.
Samples of groundwater taken from the site at the time
revealed hexavalent chromium levels thousands of times
greater than California’s stated public health goals.
River Watch contends that this hexavalent chromium has
since migrated through groundwater from the Wickes site to
the Elmira Well Field, where the City draws much of its
water. In fact, eight of the City’s eleven wells are in the
field. According to River Watch’s expert, testing of potable
water from the City’s well-heads and resident taps reveals
elevated concentrations of hexavalent chromium. River
Watch’s expert believes that hexavalent chromium moves
from the Wickes site to the Elmira Well Field and ultimately
into the homes of residents through the City’s water-
distribution system. Thus, River Watch charges that the City
is “transporting and discharging water containing high
amounts of hexavalent chromium” in a manner dangerous to
residents.
River Watch sued the City under the Resource
Conservation and Recovery Act (“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
1
We take these background facts from River Watch’s expert witness
report, which the district court assumed to be true for purposes of the
summary judgment motion.
6 CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE
environment.” 42 U.S.C. § 6972(a)(1)(B). Because one
definition of “solid waste” is “discarded material,” the
central dispute here is whether the hexavalent chromium was
discarded. Id. § 6903(27). To rebut River Watch’s claim,
the City offered evidence that the hexavalent chromium is
naturally occurring and thus not a “discarded material.”
The parties then cross-moved for summary judgment.
The district court granted the City’s motion and denied River
Watch’s motion because, as it explained, River Watch hadn’t
demonstrated how the City’s water-processing activities
could qualify as discarding “solid waste” under RCRA.
Thus, the district court explained, RCRA’s “fundamental
requirement that the contaminant be ‘discarded’” was not
satisfied. River Watch appealed.
We review orders granting summary judgment de novo.
Jones v. Royal Admin. Servs., Inc., 887 F.3d 443, 447 (9th
Cir. 2018). We review the evidence as a whole and in the
light most favorable to River Watch as the party opposing
summary judgment. Id. at 448.
II.
River Watch’s argument on appeal is simple: because the
hexavalent chromium originates from the Wickes site, it is
“discarded material” under RCRA, and thus the City is liable
for its transportation through its water-distribution system.
Before turning to the merits, we consider whether River
Watch has forfeited this argument.
A.
According to the City, River Watch has forfeited its
argument that the hexavalent chromium is “discarded
material” from the Wickes site because it did not raise that
CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE 7
theory in the district court. We agree that River Watch told
the district court multiple times that the precise genesis of
the hexavalent chromium was “irrelevant.” And we agree
that, if River Watch never presented the theory that the
hexavalent chromium originated from the Wickes site before
the district court, it could not now claim that the substance
was “discarded material” under its interpretation of RCRA.
See Baccei v. United States, 632 F.3d 1140, 1149 (9th Cir.
2011) (holding that we do not generally consider arguments
raised for the first time on appeal).
But that’s not the full story. Throughout its summary
judgment papers, River Watch consistently maintained that
the origin of the hexavalent chromium in the City’s water
was “anthropogenic,” i.e., caused by humans. To be sure,
River Watch did suggest that the hexavalent chromium could
have come from multiple industrial or agricultural sources.
But it also specifically highlighted the Wickes site as one of
those sources. In fact, River Watch expressly contended that
the Wickes facility was “likely” the source of the hexavalent
chromium in the City’s wells. Mimicking its argument on
appeal, River Watch argued that “if any of the hexavalent
chromium in Vacaville’s wells is from an industrial source,
th[e]n that hexavalent chromium is a solid waste.” In the
next breath, River Watch suggested that the Wickes site was
the source of the hexavalent chromium—especially by
showing a decline in hexavalent chromium levels at the
Elmira Well Field after the Wickes facility closed down.
So, before the district court, River Watch claimed that
the hexavalent chromium was anthropogenic but that the
substance’s exact origin was irrelevant. On appeal, River
Watch now focuses on the Wickes site as the source of the
chemical. That’s ok, because it has always maintained that
Wickes was the likely cause of the hexavalent chromium in
8 CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE
the City’s water. Appealing only one of several alternative
theories argued to the district court is hardly an uncommon
practice and is not a basis to find forfeiture. Cf. Hansen v.
Morgan, 582 F.2d 1214, 1217 (9th Cir. 1978) (relying on an
alternative theory on appeal when the “essence” of the
argument was “directed at the same concerns” as the theory
argued below). River Watch has therefore not forfeited this
argument. We proceed to the merits.
B.
RCRA 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)
(simplified). Under what we’ve called RCRA’s
“endangerment provision,” id., “any person” may file suit
against:
[A]ny person, including the United States and
any other governmental instrumentality or
agency, . . . and 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 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). We’ve described these citizen
suits as “expansive.” Ecological Rts. Found., 874 F.3d at
1089.
CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE 9
From this text, we’ve gleaned three elements to establish
RCRA liability: (1) that the defendant “ha[s] 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.”
Ctr. for Cmty. Action & Env’t Just. v. BNSF R. Co., 764 F.3d
1019, 1023 (9th Cir. 2014).
1.
We first consider whether River Watch has a cognizable
legal theory that the hexavalent chromium in Vacaville’s
water is “solid waste.” RCRA defines “solid waste” as:
[A]ny garbage, refuse, sludge from a waste
treatment plant, water supply treatment plant,
or air pollution control facility and other
discarded material, including solid, liquid,
semisolid, or contained gaseous material
resulting from industrial, commercial,
mining, and agricultural operations[.]
42 U.S.C. § 6903(27). River Watch asserts that the
hexavalent chromium is “solid waste” under the “discarded
material . . . resulting from industrial, commercial, and
agricultural operations” definition. Id.We have discussed the meaning of “discarded material”
before. We said “discard” means to “cast aside; reject;
abandon; give up.” Ecological Rts. Found. v. Pac. Gas &
Elec. Co., 713 F.3d 502, 515 (9th Cir. 2013) (simplified)
(“Ecological Rts. Found. I”). And therefore, we explained,
whether a product has “served its intended purpose and is no
longer wanted by the consumer” is a “key” consideration in
10 CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE
determining whether a substance constitutes solid waste. Id.(simplified); see also No Spray Coal., Inc. v. City of New
York, 252 F.3d 148, 150 (2d Cir. 2001) (“[M]aterial is not
discarded until after it has served its intended purpose.”).
In Ecological Rights Foundation I, an environmental
organization complained of the discharge of a wood
preservative used to treat utility poles. 713 F.3d at 515. The
organization alleged that the preservative contained a
biocide that leaked from the poles into the environment. Id.
We held that the preservative was not “discarded material”
because it was “being put to its intended use as a general
biocide” on utility poles and only escaped into the
environment through normal wear and tear. Id. at 515–16.
Thus, the preservative was neither “manufacturing waste by-
product” nor material that the consumer “no longer want[ed]
and ha[d] disposed of or thrown away.” Id. at 515. Instead,
the wood preservative had been “washed or blown away . . .
by natural means, as an expected consequence of the
preservative’s intended use, [and thus] ha[d] not been
‘discarded.’” Id. at 516.
This case presents the converse. Through its expert,
River Watch established that hexavalent chromium was
widely used in commercial wood preservation near the
Elmira Well Field. And it was common practice at facilities
like the Wickes site to drip dry wood treated with hexavalent
chromium—allowing it to trickle directly into the soil. The
expert also claimed that Wickes dumped a “massive
amount” of hexavalent-chromium waste into the ground at
the location.
CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE 11
If River Watch’s expert is credited, 2 the hexavalent
chromium meets RCRA’s definition of “solid waste.” When
the hexavalent chromium was discharged into the
environment after the wood treatment process, it was not
serving its intended use as a preservative, and it was not the
result of natural wear and tear. Instead, the hexavalent
chromium was leftover waste, abandoned and cast aside by
the facilities’ operators. This means that under RCRA’s
plain meaning, River Watch created a triable issue on
whether the hexavalent chromium is “discarded material.” 3
2.
The next question is whether the City is “contributing to
the past or present . . . transportation” of the hexavalent
chromium. 42 U.S.C. § 6972(a)(1)(B). We’ve already
defined “contribution” to mean (1) to “lend assistance or aid
to a common purpose,” (2) to “have a share in any act or
effect,” or (3) “to be an important factor in; help to cause.”
Hinds Invs., L.P. v. Angioli, 654 F.3d 846, 850 (9th Cir.
2011) (citing dictionary definitions). And “transportation”
2
We understand that the district court excluded the expert’s
testimony to the extent that the expert offered “vague or conclusory
opinions.” We leave it to the district court to determine in the first
instance if it excluded testimony necessary to establish the City’s RCRA
liability.
3
As the parties did, we assume that hexavalent chromium satisfies
the “imminent or substantial danger to the environment or health”
element of RCRA liability.
12 CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE
means the “action or process of transporting; conveyance (of
things or persons) from one place to another.” 4
Again, 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. 42 U.S.C. § 6972(a)(1)(B).
River Watch’s expert demonstrated that water originating
from the Elmira Well Field and pumped through the City’s
water-distribution system contains hexavalent chromium.
The expert also opined that this hexavalent chromium is
likely from the Wickes site. Taken as true, these facts
establish that the City is transporting solid waste through its
water-distribution system.
Contrary to the district court’s order, nothing in RCRA’s
text suggests that the “transporter” of the solid waste must
also play some role in “discarding” the waste. While the
City may be distributing groundwater contaminated by
others, RCRA’s endangerment provision broadly applies to
any “person,” including a “governmental instrumentality,”
like the City, that “contribute[s]” to the “transportation” of
“any” waste. Id. So, a “transporter” of waste need not also
be the cause of the waste’s existence. Id. Indeed, the
endangerment provision expressly lists “generator[s]” and
waste disposal “operator[s]” and “owner[s]” as separate
RCRA offenders. See 42 U.S.C. § 6972(a)(1)(B). Congress
thus made “transporter[s]” independently liable even if not
otherwise responsible for discarding or creating the waste in
the first place. This conclusion is buttressed by the fact that
the endangerment provision includes no mens rea
4
Transportation, Oxford English Dictionary Online,
https://www.oed.com/view/Entry/205022?redirectedFrom=transportati
on#eid.
CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE 13
requirement. 5 Thus, that the City may be innocent of the
activity at the Wickes site does not preclude it from RCRA
liability as a transporter. See id. 6
The City also tries to distinguish between the
transportation of solid waste and the transportation of
5
The dissent suggests that RCRA doesn’t apply to “innocent
parties.” Dissent at 23–24 (simplified). But when Congress wanted a
RCRA provision to contain a mens rea requirement, it said as much. For
example, § 6928 makes it a crime to “knowingly transport[] or cause[]
to be transported any hazardous waste identified or listed under this
subchapter to a facility which does not have a permit[.]” 42 U.S.C.
§ 6928(d)(1); see also id. § 6928(d)(5) (making it illegal to “knowingly
transport[]” or “cause[] to be transported” hazardous waste without a
manifest where one is required by the regulations). The endangerment
provision contains no such element. Even if such an element would be
commonsensical, we cannot rewrite RCRA.
6
The dissent also relies on Hinds for the proposition that RCRA
liability is limited to only “those involved in the waste disposal process.”
Dissent at 7[B]. But neither Hinds nor the text of RCRA supports such
a reading. Hinds addressed the meaning of “contribution” in the specific
context of “generator” liability. There, the plaintiffs argued that
manufacturers of dry cleaners were liable under RCRA for aiding in the
generation of waste by others through the design and improper use of
their machines. Hinds, 654 F.3d at 848. We held that such a theory of
liability was too attenuated because “‘contributing to’ the disposal of
hazardous waste [requires] a measure of control over the waste at the
time of its disposal or . . . active[] involve[ment] in the waste disposal
process.” Id. at 852. Designing machinery that might generate waste by
others, we said, didn’t fit the bill. Id. Hinds thus didn’t purport to grant
blanket RCRA immunity for anyone outside of the “waste disposal
process,” as the dissent contends. Nor did it address the meaning of
“contribution” in the context of “transporter” liability. In fact, Hinds
simply noted that RCRA liability can be established by having a “more
active role with a more direct connection to the waste, such as . . .
transporting it[.]” Id. at 851 (emphasis added). Such is the case here
and, thus, Hinds doesn’t require us to depart from RCRA’s plain
meaning.
14 CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE
groundwater contaminated by solid waste. In the City’s
view, RCRA applies to the former but not to the latter. But
once again, nothing in the text of the statute creates a
“groundwater” exception to RCRA. The endangerment
provision applies to “transportation” of “any solid [waste].”
42 U.S.C. § 6972(a)(1)(B) (emphasis added). We take “any”
to mean “any.” It doesn’t mean “any solid waste unless it’s
in groundwater.” In fact, RCRA specifically contemplates
liability for waste dispersed into groundwater. See 42 U.S.C.
§ 6903(3) (defining “disposal” to include the dumping of
solid waste into any land so that such solid waste is
“discharged into any waters, including ground waters”).
3.
The City also invokes the “absurdity doctrine” to counter
our straightforward reading of RCRA’s text. It provides an
example: if solid waste were dispersed into the air and
landed on a private citizen’s car, that motorist would then be
subject to suit under our reading of RCRA. Similarly, the
dissent hypothesizes that our reading of RCRA might
impose liability on a homeowner who hands a glass of tap
water to a friend or waters plants with a garden hose. Dissent
at 22. These arguments fail.
We have explained before that the “absurdity doctrine
will override the literal terms of a statute only under rare and
exceptional circumstances.” United States v. Lucero, 989
F.3d 1088, 1098 (9th Cir. 2021) (simplified). According to
Justice Story, courts may only depart from the “plain
meaning of a provision” when “the absurdity and injustice
of applying the provision to the case would be so monstrous,
that all mankind would, without hesitation, unite in rejecting
the application.” 1 Joseph Story, Commentaries on the
Constitution of the United States § 427, at 303 (2d ed. 1851);
see also Antonin Scalia & Bryan A. Garner, Reading Law:
CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE 15
The Interpretation of Legal Texts 237 (2012) (“The absurdity
must consist of a disposition that no reasonable person could
intend. Something that may seem odd is not absurd.”
(simplified)). Otherwise, we risk “rewriting the statute
rather than correcting a technical mistake.” Lucero,
989 F.3d at 1098 (simplified).
Here, we cannot say that interpreting RCRA based on its
plain meaning would lead to absurd results. First, Article III
standing places an important limitation on RCRA: a party
must be injured by the purported violation. Second, merely
transporting solid waste does not create RCRA liability; only
the transportation of solid waste that may create an imminent
and substantial danger does. See 42 U.S.C. § 6972(a)(1)(B).
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.
Moreover, the dissent’s hypotheticals prove too much—
suggesting that agricultural businesses and municipal water
authorities would be immune from RCRA liability for
transporting contaminated, even toxic, water as long as they
did not participate in its contamination. Dissent at 22–22.
Nothing in the text of RCRA supports such a constrained
reading. Indeed, such a reading eliminates “transporter”
liability altogether. Even if narrowing RCRA liability as
envisioned by the City and dissent “makes eminent sense,”
id. at 21–22, that is a determination for Congress, not the
courts.
III.
Because the district court’s reading of RCRA is at odds
with the statute’s plain text, we vacate the grant of summary
16 CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE
judgment and remand for further proceedings consistent
with this decision. 7
VACATED AND REMANDED.
TASHIMA, Circuit Judge, dissenting:
Defendant City of Vacaville (the “City”) draws
groundwater from wells and distributes it to City residents.
Although the City’s water complies with federal and state
drinking water standards, the water contains hexavalent
chromium, which Plaintiff California River Watch (“River
Watch”) contends is a danger to human health. River Watch
does not assert that the City did anything to cause the
contamination. On the contrary, River Watch concedes that
the City is the victim here: the alleged source of the
hexavalent chromium is a former wood treatment plant
located a mile or more from the City’s wells. Nevertheless,
River Watch contends that, by drawing water from its wells,
the City is “contributing to the . . . handling, storage,
treatment, transportation, or disposal of . . . solid . . . waste,”
in violation of the Resource Conservation and Recovery Act
of 1976 (“RCRA”), 42 U.S.C. § 6972(a)(1)(B).
I reject River Watch’s argument. In Hinds Investments,
L.P. v. Angioli, 654 F.3d 846, 851 (9th Cir. 2011), we held
that § 6972(a)(1)(B) “requires that a defendant be actively
involved in or have some degree of control over the waste
disposal process to be liable under RCRA.” Here, it is
7
We decline to reach the City’s contention that RCRA’s anti-
duplication provision bars River Watch’s suit. The City is free to re-
argue this issue before the district court.
CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE 17
conceded that the City had no involvement whatsoever in the
waste disposal process. Accordingly, under Hinds, the City
is not liable under RCRA. Because the majority holds
otherwise, I respectfully dissent.
I.
The City supplies water to residential and commercial
customers. This water comes from two sources: surface
waters and wells. The City operates a total of eleven wells,
including eight lying within the Elmira Well Field. The City
draws water from these wells, processes it, and delivers it to
its water customers.
The City’s water complies with all federal and state
drinking water standards, including Safe Drinking Water Act
standards promulgated by the U.S. Environmental
Protection Agency (“EPA”). EPA’s maximum contaminant
level for total chromium in drinking water is 0.1 milligrams
per liter or 100 parts per billion. California’s maximum
contaminant level for total chromium is 0.05 milligrams per
liter or 50 parts per billion. The City complies with both
standards. The federal and California drinking water
standards contain no separate standard for hexavalent
chromium.
River Watch contends that the source of the hexavalent
chromium in the City’s drinking water is the Wickes site, a
former wood treatment facility that, from 1972 to 1982,
conducted lumber treatment operations using wood
preservatives that contained arsenic, chromium, and copper.
The Wickes site is located between 1.4 and 3.3 miles from
the Elmira Well Field. River Watch asserts that hexavalent
chromium from the Wickes site migrated via groundwater to
the Elmira Well Field, where it contaminated the City’s
wells. The City disputes River Watch’s contention that the
18 CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE
Wickes site is the source of the hexavalent chromium found
in the City’s wells, but on summary judgment we view the
evidence in the light most favorable to the nonmoving party.
Nolan v. Heald Coll., 551 F.3d 1148, 1154 (9th Cir. 2009).
Although the City’s water complies with federal and
state drinking water standards, River Watch believes those
standards are too lenient and that the City’s water poses a
danger to human health. River Watch, however, has not
challenged the EPA’s standards through the normal course.
The Safe Drinking Water Act requires EPA to “review and
revise, as appropriate, each national primary drinking water
regulation” at least once every six years, 42 U.S.C. § 300g-
1(b)(9), and, if EPA fails to discharge this duty, “any person
may commence a civil action . . . against the [EPA]
Administrator,” id. § 300j-8(a)(2). Rather than pursuing
relief under the Safe Drinking Water Act, River Watch
commenced this action against the City under RCRA, a
statute focused not on drinking water standards, but on “the
treatment, storage, and disposal of solid and hazardous
waste.” Meghrig v. KFC W., Inc., 516 U.S. 479, 483 (1996). 1
The district court granted summary judgment to the City, and
River Watch appealed. The majority holds that the district
court erred. For the reasons set forth below, I disagree.
1
Because the majority does not address the City’s contention that
River Watch is precluded from seeking relief under RCRA because the
City’s drinking water is regulated under the Safe Drinking Water Act,
see 42 U.S.C. § 6905(a) (precluding RCRA’s application with respect to
“any activity or substance which is subject to” four other federal statutes,
including the Safe Drinking Water Act, but only to the extent that such
application would be “inconsistent with” the requirements of those
statutes); see Maj. Op. 16 n.7, I also refrain from addressing it.
CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE 19
II.
RCRA authorizes a civil action against any person “who
has contributed . . . to the . . . 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). 2 To establish a violation under this
provision, a plaintiff must prove three elements:
(1) the defendant has been or is a generator or
transporter of solid or hazardous waste, or is
or has been an operator of a solid or
hazardous waste treatment, storage or
disposal facility; (2) the defendant has
“contributed” or “is contributing to” the
handling, storage, treatment, transportation,
or disposal of solid or hazardous waste; and,
(3) the solid or hazardous waste in question
2
Under § 6972(a)(1)(B),
any person may commence a civil action on his own
behalf . . . (B) against any person, including the United
States and any other governmental instrumentality or
agency, to the extent permitted by the eleventh
amendment to the Constitution, and 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 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).
20 CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE
may present an imminent and substantial
endangerment to health or the environment.
Ecological Rts. Found. v. Pac. Gas & Elec. Co., 713 F.3d
502, 514 (9th Cir. 2013).
In Hinds, we considered the second of these elements.
The case involved groundwater contaminated by
perchloroethylene (“PCE”), a hazardous substance used in
dry cleaning. 654 F.3d at 849. The defendants were the
manufacturers of dry cleaning equipment. Id. at 848. The
plaintiffs argued that the defendants had contributed to the
disposal of PCE, in violation of RCRA, “by the design of
machines that generated waste and by the instructions they
gave on use of these machines.” Id. The plaintiffs alleged,
for instance, that the defendants’ design manuals “instructed
users that they should dispose of contaminated waste water
in drains or open sewers.” Id. at 849.
We examined the statutory text, but recognized that
RCRA’s text “does not itself define what acts of contribution
are sufficient to trigger liability.” Id. at 850. We looked to
the dictionary definition of the word “contribute” but refused
“to give wide breadth to this definition.” Id. We said:
We decline to give such an expansive reading
to the term “contribute.” Instead, . . . we
decide that the statutory language permitting
suits against “any person . . . who has
contributed or who is contributing” to the
handling, storage, treatment, transportation
or disposal of hazardous waste,
§ 6972(a)(1)(B), requires that a defendant be
actively involved in or have some degree of
control over the waste disposal process to be
liable under RCRA.
CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE 21
Id. at 851 (second alteration in original). Applying this
standard to the facts of the case, we held that the
manufacturers were not liable under RCRA for contributing
to the disposal of PCE:
We hold that to state a claim predicated on
RCRA liability for “contributing to” the
disposal of hazardous waste, a plaintiff must
allege that the defendant had a measure of
control over the waste at the time of its
disposal or was otherwise actively involved
in the waste disposal process. Mere design of
equipment that generated waste, which was
then improperly discarded by others, is not
sufficient.
Id. at 852.
Hinds controls here. Like the plaintiffs in Hinds, River
Watch has not shown that the City “had a measure of control
over the waste at the time of its disposal or was otherwise
actively involved in the waste disposal process.” Id. On the
contrary, the City had nothing to do with the waste disposal
process at issue here. That process involved a single step:
the operators of the Wickes facility discarded hexavalent
chromium on site. Subsequent events—the alleged
migration of the contaminant to the Elmira Well Field, the
contamination of the City’s wells, and the City’s drawing of
groundwater from its wells—were not, under any
conceivable theory, part of that process. Just as the
defendants’ actions in Hinds preceded the waste disposal
process, here the City’s actions postdated that process.
Hinds’ reading of the statutory text—limiting liability to
those involved in the waste disposal process—makes
eminent sense. Indeed, any other reading of RCRA would
22 CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE
produce nonsensical results. 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. And so too is a motorist who picks up a few grains
of soil while driving on a dirt road near the Wickes site.
Under River Watch’s reading of the statute, as the City
explains, “an entire aquifer contaminated by a solid waste
site becomes one gigantic mass of solid waste.” Although
aquifers vary in shape and size, some are enormous. The
Ogallala Aquifer, for example, is a vast, 174,000 square-mile
groundwater reservoir that supplies almost one-third of
America’s agricultural groundwater and drinking water for
more than 1.8 million people.
https://www.livescience.com/39625-aquifers.html (last
visited Aug. 31, 2021). If the City is transporting solid
waste, then so too is every homeowner, farmer, rancher,
municipal water authority, or agricultural irrigation district
drawing groundwater or water from a contaminated aquifer.
The majority distinguishes Hinds on the ground that the
plaintiffs in that case were seeking to hold the defendant
manufacturers liable for contributing to the disposal of
hazardous waste, whereas here River Watch is attempting to
hold the City liable to contributing to the transportation of
solid waste. Maj. Op. 13 n.6. Hinds, however, clearly
applies to this case. This is apparent from the plain language
of our decision in Hinds:
[W]e decide that the statutory language
permitting suits against “any person . . . who
has contributed or who is contributing” to the
handling, storage, treatment, transportation
or disposal of hazardous waste,
§ 6972(a)(1)(B), requires that a defendant be
actively involved in or have some degree of
CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE 23
control over the waste disposal process to be
liable under RCRA.
Hinds, 654 F.3d at 851 (emphasis added) (quoting 42 U.S.C.
§ 6972(a)(1)(B)). It is also apparent from our mode of
analysis. Our holding was based on the meaning of the word
“contribute,” which modifies both “disposal” and
“transportation.” Id. at 850–51. Like Hinds, this case too is
a “contribution” case. Finally, the principle underlying
Hinds—that RCRA liability must have some sensible outer
limit—applies at least as strongly to those accused of
transporting waste as it does to those accused of disposing of
it. Hinds, it bears emphasizing, is the law of this circuit. In
addition, it is grounded in the statutory text, places sensible
limits on RCRA liability, is readily administrable, and
reaches the correct result in this case.
Nothing in RCRA’s legislative history or in the case law
supports River Watch’s, and the majority’s, unduly broad
interpretation of the statute. Looking to legislative history,
there is no question that Congress, in adopting RCRA, was
concerned about the problem of solid waste contaminating
groundwater. See H.R. Rep. No. 94-1491, at 4, 18, 20, 73,
89 (1976), reprinted in 1976 U.S.C.C.A.N. 6238, 6242,
6255–56, 6258, 6312, 6325; H.R. Rep. No. 98-198, at 20,
31, 63 (1984), reprinted in 1984 U.S.C.C.A.N. 5576, 5578,
5589–90, 5622. But Congress was focused on entities that
caused contamination of groundwater, not the victims of
such contamination. See id. River Watch’s reliance on case
law fares no better. As the City points out, the authorities
River Watch cites “were cases against the defendant entities
that allegedly disposed of solid waste in the first instance.”
River Watch cites no case in which “innocent parties whose
products or property were allegedly affected by the industrial
defendants’ waste disposal,” and who had no involvement in
24 CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE
the waste disposal process, were subject to RCRA liability.
And neither does the majority. Extending RCRA to this case
is as unprecedented as it is unwarranted.
The majority suggests that its overly expansive reading
of the statute is reasonable because we can rely on other legal
principles—in particular, standing doctrine and the statute’s
requirement that the defendant’s conduct “may present an
imminent and substantial endangerment to health or the
environment,” 42 U.S.C. § 6972(a)(1)(B)—to constrain
RCRA liability. Maj. Op. 15. This empty assurance offers
no solace to the City, or to the countless other victims who
will be adversely affected by the majority’s decision, like all
those who draw water from contaminated aquifers, or a
Vacaville restaurant serving tap water to its customers. The
majority also tells us that its interpretation of the statute is
correct because, otherwise, “agricultural businesses and
municipal water authorities would be immune from RCRA
liability for transporting contaminated, even toxic, water as
long as they did not participate in its contamination.” Maj.
Op. 15. The majority’s opinion, however, does not
uniformly affect agricultural businesses and municipal water
authorities transporting contaminated water; it affects them
arbitrarily. If the source of the contamination is
anthropogenic, as River Watch contends it is here, then the
defendant would be covered by RCRA; if the contamination
is naturally occurring, as the City contends here, RCRA
would not apply. The majority creates an arbitrary
patchwork of RCRA drinking water regulation, as an overlay
to the EPA’s Safe Drinking Water regulations. 3
3
And under that judicially imposed regulatory regime, presumably
it is the district court—not the EPA—that will set the “safe” level of
hexavalent chromium in the City’s drinking water.
CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE 25
This should be a simple case. This case is controlled by
Hinds’ holding that § 6972(a)(1)(B) “requires that a
defendant be actively involved in or have some degree of
control over the waste disposal process to be liable under
RCRA.” 654 F.3d at 851. Here, the City had no
involvement in or control over that process. Summary
judgment, therefore, should be affirmed.
III.
Even if that were not the case, I would affirm based on
waiver. In the district court, the key question was whether
the hexavalent chromium in the City’s water system is “solid
waste” within the meaning of RCRA, 42 U.S.C. § 6903(27).
River Watch argued that it was, on two legal theories: (1) it
is a useless byproduct of the City’s water production process
(the byproduct theory); and (2) the City is using its water
distribution system to dispose of the hexavalent chromium
contaminating its wells (the disposal theory). The district
court properly rejected each of these theories and, solely on
that basis, granted summary judgment to the City. River
Watch appealed, and on appeal it has abandoned those
flawed theories and offered an entirely new one—the theory
that the hexavalent chromium in the City’s water is “solid
waste” within the meaning of RCRA because it was
discarded by the operators of the Wickes facility (the Wickes
theory).
The City persuasively argues that “River Watch may not
change its legal theory on appeal.” River Watch is raising a
new argument on appeal, it is doing so on a key issue in the
case, and it is doing so after having consciously declined, for
strategic reasons, to raise the Wickes theory in the district
26 CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE
court. 4 I would not reward River Watch’s gamesmanship. 5
As we explained in Baccei v. United States, 632 F.3d 1140,
1149 (9th Cir. 2011), “[a]bsent exceptional circumstances,
we generally will not consider arguments raised for the first
time on appeal.” Although we have discretion to consider
such arguments in exceptional circumstances, “we will not
reframe an appeal to review what would be in effect a
different case than the one decided by the district court.” Id.That is the case here. River Watch argues that the district
court erred, but it did no such thing. It properly granted
summary judgment to the City based on the arguments the
parties actually presented to it. The district court should not
be faulted for failing to address the merits of a legal theory
4
As the City explains:
River Watch was attempting to impose liability for all
City wells with hexavalent chromium, not just those in
the Elmira Well Field. . . . Because River Watch was
attempting to impose liability for wells even if no
associated solid waste disposal site could be alleged, it
came up with its “byproduct theory” of liability (which
has been abandoned on appeal). . . . It was precisely
because River Watch was seeking to impose RCRA
endangerment liability even if hexavalent chromium
in City wells was not allegedly associated with any
solid waste site like Wickes that the district court had
to confront the issue of whether Vacaville’s domestic
water supply operations alone could implicate
RCRA’s solid waste regulation rules.
5
Such gamesmanship also is unfair to the conscientious district
court, leading to the reversal of its judgment on a theory never argued to
that court.
CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE 27
that River Watch expressly disclaimed below. 6 This is the
necessary corollary to the party presentation rule recently
announced by the Supreme Court. See United States v.
Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020).
The majority finds no waiver, but it does so by asking
the wrong question. See Maj. Op.7–8. The question is not
whether River Watch has preserved its factual argument that
the Wickes site is a source of the hexavalent chromium;
River Watch has done so. The question is whether River
Watch is raising a new legal theory to meet the statute’s
definition of “solid waste.” Because River Watch raises this
legal theory for the first time on appeal, waiver applies.
6
As the district court explained:
In order to properly resolve the parties’ competing
summary judgment motions, it is important to
accurately frame the nature of River Watch’s
claim. . . . River Watch is not claiming Vacaville is
participating in the hazardous waste disposal and
transportation process as, for example, a hazardous
waste disposal company would; rather, River Watch
claims that in the process of creating potable water,
Vacaville is generating high concentrations of
hexavalent chromium, which is then incorporated into
the potable water and distributed to city residents. . . .
This understanding is crucial to determining what is
and is not “discarded material” within the statutory
meaning of “solid waste,” and whether hexavalent
chromium qualifies as such, as relevant here.
(Emphases added.)
28 CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE
IV.
I would affirm the judgment of the district court on the
two grounds discussed above. I therefore respectfully
dissent.