California River Watch v. City of Vacaville

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. ORDER AND
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 July 1, 2022
Before: A. Wallace Tashima and Patrick J. Bumatay,
Circuit Judges, and Douglas L. Rayes, * District Judge.
Order;
Opinion by Judge Bumatay;
Concurrence 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 filed (1) an order withdrawing majority and
dissenting opinions and replacing them with a superseding
opinion and concurring opinion, denying as moot a petition
for rehearing en banc, and denying a motion for permissive
intervention; (2) a superseding opinion affirming the district
court’s grant of summary judgment for defendant City of
Vacaville in a citizen suit brought under the Resource
Conservation and Recovery Act by California River Watch;
and (3) a separate opinion concurring only in the judgment.
River Watch claimed that the City’s water wells were
contaminated by a carcinogen called hexavalent chromium.
That carcinogen, River Watch said, was in turn 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,
under which one definition of “solid waste” is “discarded
material.” The district court granted summary judgment on
the ground that River Watch had not demonstrated how the
City’s water-processing activities could qualify as
discarding “solid waste” under RCRA.
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
**
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
from the “Wickes site,” where it had been dumped by
operators of wood treatment facilities.
The panel held that to establish RCRA liability, a
plaintiff must establish (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.”
The panel held that River Watch created a triable issue
on whether the hexavalent chromium was “discarded
material” and thus met RCRA’s definition of “solid waste.”
The panel further held, however, that the City did not have
the necessary connection to the waste disposal process to be
held liable for “transportation.” The panel held that, based
on the statutory text of RCRA, “transportation” means
movement in direct connection with the waste disposal
process, such as shipping waste to hazardous waste
treatment, storage, or disposal facilities, rather than mere
conveyance of hazardous waste. 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. The panel concluded that, under this theory,
the City could not be held liable for “transportation.”
Concurring only in the judgment, Judge Tashima wrote
that he found the majority’s reasoning unpersuasive and did
not join it its analysis, but he reached the same result under
a different line of reasoning, concluding that under Hinds
Investments, L.P. v. Angioli, 654 F.3d 846 (9th Cir. 2011),
the City was not liable under RCRA because it was neither
4 CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE
actively involved in nor exercised control over the waste
disposal process.
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, Los Angeles, California, for Defendant-Appellee.
Mitchell C. Tilner and David M. Axelrad, Horvitz & Levy
LLP, Burbank, California, for Amici Curiae Association of
California Water Agencies, Western Urban Water Coalition,
Association of Metropolitan Water Agencies, and American
Water Works Association.
Victor M. Sher, Matthew K. Edling, and Yumehiko
Hoshijima, Sher Edling LLP, San Francisco, California, for
Amici Curiae National League of Cities and League of
California Cities.
Jared E. Knicley, Natural Resources Defense Council,
Washington, D.C.; Francis W. Sturges Jr., Natural
Resources Defense Council, Chicago, Illinois; for Amicus
Curiae Natural Resources Defense Council.
CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE 5
ORDER
The majority and dissenting opinions filed on
September 29, 2021, and published at 14 F.4th 1076, are
withdrawn and replaced by the superseding opinion and
concurring opinion filed concurrently with this order. The
petition for rehearing en banc is denied as moot. Further
petitions for rehearing may be filed within the time periods
specified by the applicable rules. The pending motion for
permissive intervention is denied [Dkt. No. 60].
OPINION
BUMATAY, Circuit Judge:
The Resource Conservation and Recovery Act
(“RCRA”) seeks to minimize the dangers accompanying
hazardous waste disposal. 42 U.S.C. § 6902(b). 1 To that
end, the Act enables any person to sue any entity that is
contributing to the transportation of dangerous solid waste.
§ 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 City
can be held liable under RCRA.
1
Unless otherwise noted, all section (§) citations refer to Title 42 of
the U.S. Code.
6 CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE
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
have dumped a massive amount of hexavalent chromium in
the ground near Elmira (“the Wickes site”). 2
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
2
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.
CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE 7
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 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.” § 6972(a)(1)(B). Because one definition of
“solid waste” is “discarded material,” the central dispute
here is whether the hexavalent chromium was discarded.
§ 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. And we may affirm the
district court on any ground supported by the record. Kohler
v. Bed Bath & Beyond of California, LLC, 780 F.3d 1260,
1263 (9th Cir. 2015).
8 CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE
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
theory in the district court. It’s true 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
CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE 9
chromium in the City’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
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. See 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
10 CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE
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[.]
§ 6972(a)(1)(B). We’ve described these citizen suits as
“expansive.” Ecological Rts. Found., 874 F.3d at 1089.
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 the City’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[.]
CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE 11
§ 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
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
12 CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE
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.
If River Watch’s expert is credited, 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 did not result
from 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.”
2.
The next question, however, is whether the City is
“contributing to the past or present . . . transportation” of
hexavalent chromium. § 6972(a)(1)(B). River Watch
argues that the City is liable because it has physically moved
the waste by pumping it through its water-supply system.
The City counters that “transportation” requires a direct
connection to the waste disposal process—not coincidental
movement of the waste through the City’s water supply.
We begin, as always, with the ordinary meaning of the
statute. “Transportation” is literally defined as the “action
or process of transporting; conveyance (of things or persons)
from one place to another.” Transportation, Oxford English
Dictionary (2d ed. 1989); see also Transport, American
Heritage Dictionary (3d ed. 1992) (“To carry from one place
CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE 13
to another.”); Transport, Webster’s New Collegiate
Dictionary (1977) (“[T]o transfer or convey from one place
to another.”). So at first blush, the meaning of
“transportation” seems to include any party who moves the
waste. But that’s not the end of the story.
Sometimes looking at dictionary definitions in isolation
can lead us astray. See Bloate v. United States, 559 U.S. 196,
205 n.9 (2010). A legislative term’s meaning may also be
uncovered “by the specific context in which that language is
used, and the broader context of the statute as a whole.”
Yates v. United States, 574 U.S. 528, 537 (2015)
(simplified). To be clear, we don’t look beyond a term’s
ordinary meaning lightly; we may do so only where there is
a “sound reason in the statutory text or context.” FCC v.
AT&T, Inc., 562 U.S. 397, 407 (2011). In this case, by
looking to statutory context, we see that RCRA repeatedly
uses “transportation” to describe movement in direct
connection with the waste disposal process.
RCRA’s context makes clear that mere conveyance of
hazardous waste cannot constitute “transportation” under the
endangerment provision. For instance, RCRA authorizes the
establishment of “[s]tandards applicable to transporters of
hazardous waste.” (emphasis added). § 6923(a). At a
minimum, these standards must include recordkeeping
requirements, labeling requirements, compliance with a
shipping manifest system, and restrictions that limit the
locations where waste can be transported. § 6923(a)(1)–(4).
It thus follows that “transporters” are not those who happen
to move hazardous waste under any circumstance, but only
to those “shipper[s]” of the waste to “hazardous waste
treatment, storage, or disposal facilities.” § 6923(a)(4).
Congress used this more nuanced meaning of
transportation throughout the statute. For example, RCRA’s
14 CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE
permitting provision requires a permit for owners and
operators of facilities for the treatment, storage, or disposal
of hazardous waste. § 6925. Applicants for the permits must
provide certain information about the “composition,
quantities and concentrations” of waste to be “transported”
and the “site at which such . . . waste . . . be disposed of,
treated, transported to, or stored.” § 6925(b)(1)–(2). At the
same time, RCRA’s inspection provision allows authorized
agents to (1) obtain relevant records from “any person who
. . . transports” hazardous waste, (2) inspect “any
establishment” where wasted is “transported from,” and
(3) collect samples from their transportation containers.
§ 6927(a). These meticulous permitting and inspection
requirements do not purport to apply to any party that
indirectly moves waste. After all, this regulatory regime
would be unworkable if it applied to waste that seeps through
groundwater and inadvertently makes its way into a water
supply. Instead, transportation refers to the specific task of
moving waste in connection with the waste disposal process.
RCRA’s criminal provisions reinforce the position that
“transportation” refers to the movement of waste directly
connected to the waste disposal process. RCRA’s criminal
provisions crack down on a variety of conduct that takes
place within the waste disposal process. § 6928(d). First,
RCRA makes it unlawful for any person to “knowingly
transport[]” hazardous waste “to a facility which does not
have a permit.” § 6928(d)(1). RCRA also makes it illegal
for parties who “knowingly . . . transport[]” hazardous waste
to destroy “any record, application, manifest, report or other
document” or to “knowingly transport[] without a manifest.”
§ 6928(d)(4)–(5). A “manifest” is “the form used for
identifying the . . . destination of hazardous waste during its
transportation from the point of generation to the point of
disposal, treatment or storage.” § 6903(12) (emphasis
CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE 15
added). In combination, these provisions make clear that
transportation does not involve the incidental movement of
hazardous waste, but refers to the active movement of waste
as part of the waste disposal process. Otherwise, why refer
to manifests, permits, and the like?
RCRA’s structure and applicable regulations also
emphasize this direct connection between “transportation”
and the waste disposal process. The regulations begin by
defining “transportation” as the “movement of hazardous
waste by air, rail, highway, or water.” 40 C.F.R. § 260.10.
But under multiple RCRA provisions and implementing
regulations, “transporters” of hazardous waste must follow a
series of calibrated steps—all designed to move waste from
its source to a permitted facility for treatment, storage, or
disposal. See 40 C.F.R. § 262.20 (describing the manifest
requirements in moving waste from its source to a permitted
facility). To start, a waste “transporter” must register with
the EPA. Id. § 263.11. Then the “transporter” must
coordinate with a waste generator to arrange a pickup date
and log the information into a shipping manifest system. Id.
§§ 262.23(a)(2), 263.20. And the rules specifically require
waste “transporter[s]” to provide the generator with a
signature certifying the date of acceptance. Id.
§ 263.20(a)(2). Then, on the relevant date, the “transporter”
must pick up the waste at the designated site and deliver it to
a permitted facility. Id. § 263.21. So, as the City accurately
puts it, RCRA establishes a “cradle to grave” framework for
the transport and disposal of hazardous waste. And as part
of this framework, waste “transporters” play a specific role
in moving waste from its origin to its disposal facility.
And this specific meaning of “transportation” remains
true in the solid waste context. RCRA uses “transportation”
of solid waste to require a connection to the waste disposal
16 CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE
process. First, RCRA’s statutory purpose expressly
connects solid waste transportation with waste disposal
systems. See 42 U.S.C. § 6902(a)(8) (discussing the
objective of establishing “guidelines for solid waste
collection, transport, . . . and disposal practices and
systems”). RCRA also provides nearly the exact same
definition for “hazardous waste management” and “solid
waste management.” Compare id. § 6903(7), with id.
§ 6903(28). These provisions contemplate the “control” and
“systemic administration” of “transportation” and “disposal”
processes for hazardous and solid waste. See id. §§ 6903(7),
6903(28). RCRA also directly connects “transportation”
and disposal in describing the components of a solid waste
management facility. Id. § 6903(29)(C) (defining it as “any
facility for the . . . transportation . . . or disposal, of solid
wastes, including hazardous wastes”). The better reading of
RCRA is that waste transportation—whether of hazardous
or solid waste—must be connected to the waste disposal
process.
Most significantly, the endangerment provision itself
strongly implies a more targeted meaning of
“transportation.” Again, the endangerment provision
applies to “[a]ny person, including . . . [any] past or present
transporter . . . who has contributed or who is contributing
to the past or present . . . transportation . . . of any solid or
hazardous waste.” § 6972(a)(1)(B) (emphasis added). So
Congress used “transportation” after reference to a
“transporter” of waste. And as we have just discussed, the
term “transporter” carries a specific connection to the waste
disposal process throughout RCRA. In general, “a word is
given more precise content by the neighboring words with
which it is associated.” United States v. Williams, 553 U.S.
285, 294 (2008). Here, the proximity between “transporter”
and “transportation” suggests that the terms share similar
CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE 17
meanings. In other words, Congress’s reference to a
“transporter” of waste narrows the context of what it means
to “transport[]” waste.
Indeed, in the endangerment provision, Congress
established liability for those involved in the full range of the
waste disposal process—“generator[s],” “transporter[s],”
and “owner[s] or operator[s] of a treatment, storage, or
disposal facility.” § 6972(a)(1)(B). Thus, the endangerment
provision creates incentives for participants in the waste
disposal process to protect health and the environment—but
it’s not a catchall environmental protection statute. We’ve
already said this in the context of “disposal” liability under
the endangerment provision. See Hinds Invs., L.P. v.
Angioli, 654 F.3d 846, 851 (9th Cir. 2011). There, we held
that “disposal” in the endangerment provision “requires that
a defendant be actively involved in or have some degree of
control over the waste disposal process to be liable under
RCRA.” Id. So, like Hinds, we conclude that the best
reading of RCRA is that the “transportation” at issue must
also be directly connected to the waste disposal process—
such as shipping waste to hazardous waste treatment,
storage, or disposal facilities. 3
3
We acknowledge our previous opinion held that the ordinary
meaning of “transportation” did not require a direct connection to the
waste disposal process. California River Watch v. City of Vacaville,
14 F.4th 1076, 1081–82 (9th Cir. 2021). Yet, as Justice Robert Jackson
explained long ago, there is “no reason why [we] should be consciously
wrong today, because [we were] unconsciously wrong yesterday.”
Massachusetts v. United States, 333 U.S. 611, 639–40 (1948) (Jackson,
J., dissenting). The City’s further briefing on the context and structure
of RCRA’s provisions has persuaded us that we must look beyond
dictionary definitions to determine the meaning of “transportation” in the
endangerment provision. By doing so, we better interpret RCRA as “a
18 CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE
Turning to the facts here, the City does not move
hexavalent chromium in direct connection with its waste
disposal process. Under River Watch’s theory of liability,
hexavalent chromium seeps through groundwater into the
City’s wells and the City incidentally carries the waste
through its pipes when it pumps water to its residents. River
Watch doesn’t allege that the City transports the hexavalent
chromium as part of the City’s waste disposal process.
Indeed, no evidence suggests that the City is a “transporter”
of waste under RCRA’s definitions. As a result, we
conclude that the City does not have the necessary
connection to the waste disposal process to be held liable for
“transportation” under § 6972(a)(1)(B).
3.
Our concurring colleague agrees that transporter liability
under the endangerment provision must be connected to the
waste disposal process, but reaches that conclusion based on
precedent and an application of the absurdity canon rather
than the statutory text. Concurrence at 26–28 (citing Hinds,
654 F.3d at 852). We disagree with this approach for
multiple reasons.
First, Hinds doesn’t control this case. Hinds addresses
the meaning of “contribution” to the “disposal” of waste.
Hinds, 654 F.3d at 850. Interpreting the statutory text, we
held that “‘[c]ontribution’ requires a more active role with a
more direct connection to the waste,” such as “[h]andling the
harmonious whole” and avoid giving inconsistent meaning to the term
“transportation.” See FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120, 133 (2000). Because it is “never too late to surrender
former views to a better considered position,” South Dakota v. Wayfair,
138 S. Ct. 2080, 2100 (2018) (Thomas, J., concurring), we reverse our
prior holding in favor of the better reading of RCRA.
CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE 19
waste, storing it, treating it, transporting it, or disposing of
it.” Id. at 851. Thus, the Hinds plaintiffs could not hold the
manufacturers of dry-cleaning equipment liable for waste
that was generated by the machine and then improperly
disposed by others. Id. at 852. Our case does not involve
“disposal” liability—River Watch alleges that the City is a
past or present “transporter” of the waste. While instructive
here, Hinds does not govern.
Second, there is no reason to apply the absurdity canon.
In addition to relying on Hinds, the concurrence reaches its
interpretation of RCRA based on what “makes eminent
sense,” what won’t “produce nonsensical results,” and what
won’t punish “innocent parties.” Concurrence at 26–28. “It
is true that interpretations of a statute which would produce
absurd results are to be avoided if alternative interpretations
consistent with the legislative purpose are available.”
Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575
(1982). But this interpretative canon will “override the
literal terms of a statute only under rare and exceptional
circumstances.” Crooks v. Harrelson, 282 U.S. 55, 60
(1930). And because the absurdity canon is used to justify a
departure from the literal terms of a statute, we first must
engage with and interpret RCRA’s text—a crucial step the
concurrence skips because of its dispositive reliance on
Hinds. For reasons explained in this opinion, we conclude
based on the RCRA’s text that the “transportation” at issue
in the endangerment provision must be directly connected to
the waste disposal process, which is an interpretation that
does not implicate the absurdity canon.
The concurrence disagrees with our textual analysis,
particularly reading “transportation” in the context of RCRA
as a whole. But the concurrence acknowledges that
“transportation” has a “specialized meaning” in some parts
20 CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE
of RCRA, yet curiously it doesn’t say what it means in
§ 6972(a)(1)(B). Concurrence at 32. In other words, the
concurrence does not provide its own view of what
“transportation” actually means in the endangerment
provision—let alone a meaning that contradicts our
interpretation. To apply the absurdity canon without first
interpreting the meaning of “transportation” puts the cart
before the horse.
Lastly, the concurrence takes an unduly narrow view of
when we look to statutory context and structure, suggesting
we can’t use context across subchapters. Concurrence at 30.
But, as the Supreme Court has explained, “[i]n ascertaining
the plain meaning of the statute, the court must look to the
particular statutory language at issue, as well as the language
and design of the statute as a whole.” K Mart Corp. v.
Cartier, Inc., 486 U.S. 281, 291 (1988). Congress chose to
use “transportation,” “transporter,” and “transport”
throughout RCRA, and “a word or phrase is presumed to
bear the same meaning throughout a text” even “when
different sections of an act or code are at issue.” Antonin
Scalia & Bryan A. Garner, Reading Law 156–57 (2012).
III.
Because the City cannot be held liable under RCRA, we
affirm the district court’s grant of summary judgment for the
City.
AFFIRMED.
CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE 21
TASHIMA, Circuit Judge, concurring only in the judgment:
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
conceded that the City had no involvement whatsoever in the
waste disposal process. Accordingly, under Hinds, the City
is not liable under the RCRA. Because the majority reaches
that result, albeit under a line of reasoning with which I
cannot agree, I concur only in the judgment.
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
22 CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE
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”). The EPA’s maximum
contaminant level for total chromium in drinking water is
0.1 milligram per liter or 100 parts per billion. California’s
maximum contaminant level for total chromium is
0.05 milligram 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.
The City’s drinking water contains 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 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
CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE 23
challenged the EPA’s standards through the normal course.
The Safe Drinking Water Act requires the 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 the 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 the
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). The district court granted summary judgment to
the City, and River Watch appealed. The majority affirms
the district court. For the reasons set forth below, I would
affirm as well, albeit for different reasons.
II.
The RCRA’s citizen-suit provision 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). 1 To establish a
1
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
24 CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE
violation under this provision, we have held that 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
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). 2
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 related provision, § 6973(a), authorizes
the EPA to bring similar suits.
2
I have some doubts about the accuracy of the first element’s narrow
definition. The statute authorizes suit against “any 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.”
42 U.S.C. § 6972(a)(1)(B) (emphasis added). In interpreting statutes, we
ordinarily presume that “[t]he verb to include introduces examples, not
an exhaustive list.” Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 132 (2012). There is no need to revisit
this question here, however.
CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE 25
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 the 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 the
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 the RCRA.
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 the RCRA for
contributing to the disposal of PCE:
26 CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE
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 the RCRA
would 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
CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE 27
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.” 3
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.
Nothing in the RCRA’s legislative history or in the case
law supports River Watch’s unduly broad interpretation of
the statute. Looking to legislative history, there is no
question that Congress, in adopting the 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” were subject to RCRA liability.
3
Although aquifers vary in 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 May 5,
2022).
28 CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE
Imposing RCRA liability on the basis argued for by River
Watch would be unprecedented and unwarranted.
The majority’s suggestion that I am relying on the
absurdity doctrine, Maj. Op. at 19, is mistaken. My analysis
is based on Hinds, which in turn is based on the plain
meaning of the statutory text. See Hinds, 654 F.3d at 850–
52. It is true that I point out that River Watch’s alternative
interpretation of the statute would produce nonsensical
results. Supra, at 26. But this observation is simply an
additional reason to follow the plain meaning of the statutory
text as we interpreted it in Hinds. The absurdity doctrine
applies when a court departs from the plain meaning of a
statute. See, e.g., Lamie v. U.S. Tr., 540 U.S. 526, 534
(2004); Taylor v. Dir., Off. of Workers Comp. Programs, 201
F.3d 1234, 1241 (9th Cir. 2000. That doctrine, therefore,
plays no part in my analysis.
The majority’s conclusion that Hinds is not controlling
here, Maj. Op. at 18, is also mistaken. 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. 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 29
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)); id. (“The statutory prohibition on
‘contributing to’ speaks in active terms about ‘handling,
storage, treatment, transportation, or disposal’ of hazardous
waste.” (emphasis added)); id. (“‘Contributing’ requires a
more active role with a more direct connection to the waste,
such as by handling it, storing it, treating it, transporting it,
or disposing of it.” (emphasis added)). 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.
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. I would affirm summary judgment for the City on
that ground.
III.
The majority reaches the same result through other
means. Because I find the majority’s reasoning
30 CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE
unpersuasive, I concur in the result but, respectfully, do not
join in the majority’s analysis.
The majority begins by searching the RCRA’s statutory
text (and regulations) to identify uses of the words
“transporter” and “transportation.” Maj. Op. at 12–13
(citing 42 U.S.C. §§ 6923, 6925, 6927, 6928, 40 C.F.R.
§§ 260.10, 262.20, 262.23, 263.11, 263.20, 263.21). Next,
the majority examines these uses, and draws from them the
conclusion that, when the RCRA uses the word
transportation, it uniformly does so to refer “to the specific
task of moving waste in connection with the waste disposal
process.” Maj. Op. at 14. Finally, because RCRA uses this
meaning of transportation “throughout the statute,” Maj. Op.
at 13, the majority concludes that we can confidently assign
this same meaning to the use of the word transportation in
§ 6972(a)(1)(B).
The majority’s analysis is flawed for several interrelated
reasons. First, the majority has not shown that the word
transportation (or its variants) carries the same meaning
“throughout the statute,” Maj. Op. at 13, or “throughout
RCRA,” Maj. Op. at 16. Although the majority looks to a
number of uses of the word “transportation” in the statute
and regulations, each of those uses pertains to a single
portion of the statute (Subtitle C) and a particular subject (the
regulation of hazardous waste). Maj. Op. at 13–16 (citing
42 U.S.C. §§ 6923, 6925, 6927, 6928, 40 C.F.R. §§ 260.10,
262.20, 262.23, 263.11, 263.20, 263.21). Notably, none of
the majority’s uses arise under Subtitle D (governing the
regulation of solid waste) or Subtitle G (the home of § 6972).
There is, in short, no evidence that the word transportation
carries the same meaning throughout the statute.
This might not be a problem if Subtitle C and
§ 6972(a)(1)(B) used identical language: “The normal rule
CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE 31
of statutory construction assumes that ‘identical words used
in different parts of the same act are intended to have the
same meaning.’” Sorenson v. Sec’y of Treasury, 475 U.S.
851, 860 (1986) (quoting Helvering v. Stockholms Enskilda
Bank, 293 U.S. 84, 87 (1934)). Subtitle C and
§ 6972(a)(1)(B), however, do not use identical words.
Whereas Subtitle C defines the term “transportation . . of
hazardous waste,” 40 C.F.R. § 260.10 (emphasis added), the
citizen-suit provision uses the term “transportation . . . of
any solid or hazardous waste.” 42 U.S.C. § 6972(a)(1)(B)
(emphasis added). Because these terms are distinct, we may
not presume that they carry the same meaning. 4
There is reason to believe, moreover, that Subtitle C’s
definition of transportation of hazardous waste does not
extend beyond Subtitle C. For purposes of Subtitle C, the
terms transportation of hazardous waste and transporter of
hazardous waste are defined by 40 C.F.R. § 260.10:
“[t]ransportation means the movement of hazardous waste
by air, rail, highway, or water” and “[t]ransporter means a
person engaged in the offsite transportation of hazardous
waste by air, rail, highway, or water.” But this regulation
also makes clear that these definitions apply solely to
Subtitle C—governing the regulation of hazardous waste.
See id. (“When used in parts 260 through 273 of this chapter,
the following terms have the meanings given below . . . .”).
It is no surprise that these definitions are limited to
Subtitle C. Subtitle C addresses a specific problem—the
comprehensive regulation of transporters of hazardous
waste. See 42 U.S.C. § 6923; 40 C.F.R. §§ 263.10–.31. That
4
Both provisions use the word “transportation,” but Subtitle C does
not define the term transportation in isolation. It defines the
transportation of hazardous waste. 40 C.F.R. § 260.10.
32 CALIFORNIA RIVER WATCH V. CITY OF VACAVILLE
context is wholly unrelated to the transportation of solid
waste, which is not similarly regulated, and § 6972(a)(1)(B),
which imposes civil liability on persons contributing to the
transportation of any solid waste, not just hazardous waste. 5
In sum, the majority is correct to note that, under
Subtitle C, the words “transportation of hazardous waste”
have a specialized meaning. But the majority errs in
presuming that that meaning applies to § 6972(a)(1)(B).
First, the majority has not pointed to any examples in which
the statute uses this specialized meaning outside of Subtitle
C and the regulation of hazardous waste. The majority’s
assertion that the statute employs that meaning “throughout
RCRA,” Maj. Op. at 16, is therefore mistaken. Second, by
§ 260.10’s express terms, Subtitle C’s specialized definition
of transportation applies only to Subtitle C, not to the statute
more broadly. 40 C.F.R. § 260.10. Third, Subtitle C and
§ 6972(a)(1)(B) use different language and serve different
purposes. There is no reason to extend a specialized
definition applicable to the transportation of hazardous
waste to a civil liability provision applicable to the
transportation of solid waste generally. In short, Subtitle C
does not supply a RCRA-wide definition of “transportation.”
Instead of looking to Subtitle C’s specialized and
context-specific definition of transportation, I would resolve
this appeal under Hinds, 654 F.3d at 851. Because the City
is neither actively involved in nor exercises control over the
waste disposal process, it is not liable under § 6972(a)(1)(B).
Accordingly, I concur only in the judgment.
5
As the majority notes, the RCRA’s criminal provisions also are
limited to hazardous wastes. See Maj. Op. at 14–15.