1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CALIFORNIA RIVER WATCH, No. 2:17-cv-00524-KJM-KJN 12 Plaintiff, 13 v. ORDER 14 CITY OF VACAVILLE, 15 Defendant. 16 17 In this case in which plaintiff California River Watch (“plaintiff” or “River 18 Watch”) alleges toxic contamination under the Resource Conservation and Recovery Act 19 (“RCRA”), 42 U.S.C. § 6972(a)(1)(B), each party moves for summary judgment on the sole 20 remaining claim related to the presence of hexavalent chromium in the public water supply as 21 endangering human health.1 Plaintiff also moves to exclude portions of the expert witness report 22 offered by defendant City of Vacaville (“defendant” or “Vacaville”) and also moves to strike the 23 declaration of Adam Love in support of Vacaville’s summary judgment motion. Vacaville 24 25 1 The complaint originally set forth a single claim under the RCRA with two component parts: one for endangerment to human health and one for endangerment to the environment. See 26 Compl. ¶¶ 27–32, ECF No. 1. On February 10, 2020, the court approved the parties’ stipulation 27 dismissing the environmental endangerment component of plaintiff’s RCRA claim. See ECF No. 78. Therefore, the sole remaining issue in this case relates to alleged endangerment to the health 28 of the City of Vacaville’s customers through exposure to the City’s potable water system. 1 separately moves to strike proposed corrections made in the deposition errata submitted by 2 Dr. Larry Russell, plaintiff’s expert witness. 3 On April 10, 2019, the court heard oral argument on the motions. Counsel Jack 4 Silver and David Weinsoff appeared for plaintiff; counsel Gregory Newmark appeared for 5 defendant. Having considered the motions and all evidence in support thereof, and for the 6 reasons explained below, the court GRANTS in part and DENIES in part defendant’s motion for 7 summary judgment. Plaintiff’s motion for summary judgment is DENIED, and the motion to 8 exclude and motions to strike are DENIED as moot. 9 Ultimately, the court concludes the case should be CLOSED. While it cannot be 10 disputed that hexavalent chromium itself presents a risk to human health, plaintiff here attempts 11 to stretch the RCRA statute well beyond its application, seeking to force a square peg into a round 12 hole. As the court explains below, the RCRA cannot bear the interpretation plaintiff advances. 13 I. BACKGROUND 14 This case turns on a question of statutory interpretation; therefore, the court 15 provides only a brief recitation of the facts and procedural history. California River Watch, a 16 non-profit organization, brings this citizen’s suit under 42 U.S.C. § 6972(a)(1)(B) of the RCRA. 17 Pl.’s Mot. Summ. J. (“MSJ”) at 1, ECF No. 40. River Watch asserts, among other things, that 18 Vacaville is generating and transporting hexavalent chromium through its potable water system 19 and distributing that water to its customers for consumption. Id. Specifically, River Watch 20 alleges “hexavalent chromium in the CITY’s water supply [drawn from its wells and surface 21 water sources] is a waste that is stored, transported or otherwise managed by the CITY from its 22 water treatment plant and facilities.” Compl. ¶ 17, ECF No. 1. Vacaville’s water treatment 23 process, River Watch argues, creates an imminent and substantial endangerment to the health and 24 safety of Vacaville’s residents, resulting in a violation under § 6972(a)(1)(B). Pl.’s MSJ at 1. 25 Most important to plaintiff’s claim is whether the product it says Vacaville carries in its water 26 constitutes “solid waste” under the RCRA. Id. Vacaville challenges plaintiff’s allegations on 27 many fronts, chief among them plaintiff’s failure to satisfy the statutory definition of “solid 28 1 waste” because, it says, the hexavalent chromium contained within its potable water was and is 2 not “discarded” as required by the statute. Def.’s MSJ at 1, ECF No. 51. 3 River Watch initiated this action on March 13, 2017, bringing a single claim under 4 § 6972(a)(1)(B) and seeking various forms of injunctive relief. See generally Compl. Vacaville 5 moved to dismiss the complaint for failure to state a claim and violation of the RCRA’s anti- 6 duplication provision. Def.’s Mot. Dismiss, ECF No. 5. On September 1, 2017, in denying 7 Vacaville’s motion, the court found the complaint states a valid RCRA claim and the anti- 8 duplication provision is inapplicable. Dismissal Order, ECF No. 20. The pending summary 9 judgment motions followed, along with Vacaville’s motion to exclude and plaintiff’s motion to 10 strike. As the court notes above, in February 2020, plaintiff trimmed its RCRA claim to focus on 11 alleged harm to human health alone. The court resolves the pending motions here. 12 II. LEGAL STANDARD 13 A court will grant summary judgment “if . . . there is no genuine dispute as to any 14 material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 15 The “threshold inquiry” is whether “there are any genuine factual issues that properly can be 16 resolved only by a finder of fact because they may reasonably be resolved in favor of either 17 party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). 18 The moving party bears the initial burden of showing the district court “that there 19 is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 20 U.S. 317, 325 (1986). The burden then shifts to the nonmoving party, which “must establish that 21 there is a genuine issue of material fact . . . .” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 22 475 U.S. 574, 585 (1986). In carrying their burdens, both parties must “cit[e] to particular parts 23 of materials in the record . . .; or show [ ] that the materials cited do not establish the absence or 24 presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to 25 support the fact.” Fed. R. Civ. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 (“[The 26 nonmoving party] must do more than simply show that there is some metaphysical doubt as to the 27 material facts”). Also, “[o]nly disputes over facts that might affect the outcome of the suit under 28 1 the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 2 247–48. 3 In deciding a motion for summary judgment, the court draws all inferences and 4 views all evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 5 587–88; Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir. 2008). “Where the record taken as a 6 whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine 7 issue for trial.’” Matsushita, 475 U.S. at 587 (quoting First Nat’l Bank of Ariz. v. Cities Serv. 8 Co., 391 U.S. 253, 289 (1968)). Where a genuine dispute exists, the court draws inferences in 9 plaintiffs’ favor. Tolan v. Cotton, 134 S. Ct. 1861, 1868 (2014). Parties may object to evidence 10 cited to establish undisputed facts. In re Oracle Corp. Sec. Litig., 627 F.3d at 385–86. A court 11 may consider evidence that would be “admissible at trial.” Fraser v. Goodale, 342 F.3d 1032, 12 1036 (9th Cir. 2003). But the evidentiary standard for admission at the summary judgment stage 13 is lenient: A court may evaluate evidence in an inadmissible form if the evidentiary objections 14 could be cured at trial. See Burch v. Regents of the Univ. of Cal., 433 F. Supp. 2d 1110, 1119–20 15 (E.D. Cal. 2006). In other words, admissibility at trial depends not on the evidence’s form, but on 16 its content. Block v. City of L.A., 253 F.3d 410, 418–19 (9th Cir. 2001) (citing Celotex Corp., 477 17 U.S. at 324). The party seeking admission of evidence “bears the burden of proof of 18 admissibility.” Pfingston v. Ronan Eng’g Co., 284 F.3d 999, 1004 (9th Cir. 2002). If the 19 opposing party objects to the proposed evidence, the party seeking admission must direct the 20 district court to “authenticating documents, deposition testimony bearing on attribution, hearsay 21 exceptions and exemptions, or other evidentiary principles under which the evidence in question 22 could be deemed admissible . . . .” In re Oracle Corp. Sec. Litig., 627 F.3d at 385–86. However, 23 courts are sometimes “much more lenient” with the affidavits and documents of the party 24 opposing summary judgment. Scharf v. U.S. Atty. Gen., 597 F.2d 1240, 1243 (9th Cir. 1979). 25 The Supreme Court has taken care to note that district courts should act “with 26 caution in granting summary judgment,” and have authority to “deny summary judgment in a case 27 where there is reason to believe the better course would be to proceed to a full trial.” Anderson, 28 477 U.S. at 255. A trial may be necessary “if the judge has doubt as to the wisdom of terminating 1 the case before trial.” Gen. Signal Corp. v. MCI Telecommunications Corp., 66 F.3d 1500, 1507 2 (9th Cir. 1995) (quoting Black v. J.I. Case Co., 22 F.3d 568, 572 (5th Cir. 1994)). This may be 3 the case “even in the absence of a factual dispute.” Rheumatology Diagnostics Lab., Inc v. Aetna, 4 Inc., No. 12-05847, 2015 WL 3826713, at *4 (N.D. Cal. June 19, 2015) (quoting Black, 22 F.3d 5 at 572); accord Lind v. United Parcel Serv., Inc., 254 F.3d 1281, 1285 (11th Cir. 2001). 6 However, when the trial court is presented with a question of statutory 7 interpretation at summary judgment, resolution of such question, even if dispositive, is 8 appropriate. See Singh v. Clinton, 618 F.3d 1085, 1088 (9th Cir. 2010) (“We review the district 9 court's grant of summary judgment as well as its statutory interpretations de novo.”); Johnson v. 10 Land O' Lakes, Inc., 18 F. Supp. 2d 985, 993 (N.D. Iowa 1998) (“statutory interpretation . . . is 11 primarily a legal question amenable to summary judgment.”). 12 III. DISCUSSION 13 This case turns on the meaning of “solid waste” and asks whether the hexavalent 14 chromium in Vacaville’s potable water satisfies the definition of that term as used in the RCRA. 15 Before turning to that question, however, the court addresses the threshold issue of plaintiff’s 16 standing to bring this citizens’ suit. 17 A. Standing 18 To obtain Article III standing, a plaintiff must show (1) he is under threat of 19 suffering an injury in fact that is concrete and particularized; (2) the threat must be actual and 20 imminent, not conjectural or hypothetical; (3) it must be fairly traceable to the challenged action 21 of the defendant; and (4) it must be likely that a favorable judicial decision will prevent or redress 22 the injury. Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). When an organization 23 brings suit, it must establish that at least one of its members “ha[s] standing to sue in [his] own 24 right.” Ecological Rights Found. v. Pac. Gas & Elec. Co. (“Ecological Rights II”), 874 F.3d 25 1083, 1092 (9th Cir. 2017) (quoting Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 26 1141, 1147 (9th Cir. 2000)). 27 Here, in bringing its summary judgment motion, River Watch preemptively asserts 28 standing to sue on behalf of its members. Pl.’s MSJ at 20–22. River Watch claims the injuries of 1 its members Eliesa Brown, Larry Hanson and Robert Rawson, as articulated in their respective 2 declarations, satisfy the requirements of Article III standing, and thus satisfy River Watch’s 3 ability to initiate this action on its members’ behalf. Id.; see also Brown Decl., ECF No. 41; 4 Rawson Decl., ECF No. 42; Hanson Decl., ECF No. 43. Specifically, Ms. Brown states she visits 5 her father nearly every day at his Leisure Town home, located in a Vacaville suburb, spends 6 extensive time in Vacaville, is exposed to and consumes water from Vacaville’s water filtration 7 system and experiences “substantial aesthetic and personal health concerns” based on that 8 exposure, because she fears “that no water in Vacaville is safe.” Pl.’s MSJ at 21; Brown Decl. 9 ¶¶ 7, 16, 17. Mr. Hanson, an avid outdoor enthusiast, also spends extensive time in Vacaville 10 visiting a friend and enjoying Vacaville’s many outdoor opportunities, particularly Lagoon Valley 11 Park. Pl.’s MSJ at 21; Hanson Decl. ¶ 7. Hanson claims that knowledge of the elevated levels of 12 hexavalent chromium in Vacaville’s drinking water keep him and his wife from returning to the 13 area for further recreational enjoyment. Pl.’s MSJ at 21–22; Hanson Decl. ¶ 7. Finally, River 14 Watch member Mr. Rawson intends to relocate his elderly mother to Vacaville because of its 15 central location and affordable cost of living; however, knowledge of Vacaville’s hexavalent 16 chromium levels prevents him and his family from completing the relocation for fear of adverse 17 health effects that may arise from his mother’s exposure to chromium. Pl.’s MSJ at 22; Rawson 18 Decl. ¶¶ 3–4. 19 Vacaville argues River Watch fails to meet the “injury in fact” threshold because it 20 has not shown any “injury was in fact due to the constituents of drinking water. Therefore, it 21 says, there is ‘no causal connection’ between the injury and the conduct complained of.” Def.’s 22 Opp’n to Pl.’s MSJ at 22–23, ECF No. 61. Vacaville also asserts River Watch fails to show the 23 harm it claims is redressable because River Watch cannot establish a violation under RCRA; thus, 24 the injunctive relief River Watch seeks, the bringing of defendant’s water treatment operations 25 into compliance with the RCRA, is unattainable because Vacaville already is in compliance. Id. 26 The court finds River Watch has adequately established standing to bring suit on 27 behalf of its members. As the court in Ecological Rights II explained, “The ‘injury in fact’ 28 requirement in environmental cases is satisfied if an individual adequately shows that she has an 1 aesthetic or recreational interest in a particular place, or animal, or plant species and that that 2 interest is impaired by a defendant's conduct.” 874 F.3d at 1093 (citing Pac. Lumber Co., 230 3 F.3d at 1147). Additionally, an injury in fact may be prospective or retrospective in nature. See, 4 e.g., Summers, 555 U.S. at 493 (“[P]laintiff must show he is under threat of suffering ‘injury in 5 fact.’” (emphasis added)). The declarations of Eliesa Brown, Larry Hanson and Robert Rawson, 6 and the alleged effects they say they are experiencing or will experience by their exposure to 7 elevated levels of hexavalent chromium, supply a causal connection between the alleged harmful 8 activity and the harm to plaintiff’s members. See generally Pl.’s MSJ (detailing detrimental 9 effects of hexavalent chromium exposure). Moreover, given the broader statutory minima for 10 citizen suits brought under § 6972(a)(1)(B) (providing for citizen suits “against any person . . . 11 present[ing] an imminent and substantial endangerment to health and the environment”), River 12 Watch need not prove a RCRA violation has actually occurred in order to satisfy standing’s 13 redressability requirement, because, for purposes of standing under § 6972(a)(1)(B), it need only 14 show Vacaville “created a substantial probability of increased harm to the environment.” Maine 15 People’s All. And Nat. Res. Def. Council v. Mallinckrodt, Inc., 471 F.3d 277, 285 (1st Cir. 2006). 16 Again, given the allegations in River Watch’s summary judgment motion, and its supporting 17 evidence, the court finds, for purposes of standing, the redressability element is satisfied. River 18 Watch has standing to sue. 19 B. Applicability of RCRA’s Anti-Duplication Provision 20 Vacaville argues that River Watch’s claim violates the RCRA’s anti-duplication 21 provision. Def.’s MSJ at 13–16. As Vacaville notes, the court previously rejected this same 22 argument in its order denying Vacaville’s motion to dismiss, see Dismissal Order at 3–5; thus, 23 Vacaville effectively asks the court to reconsider its ruling here albeit at a different stage of the 24 proceedings, Def.’s MSJ at 13–14. The outcome below moots this request. 25 Vacaville’s motion for summary judgment is DENIED as to the RCRA’s anti- 26 duplication provision. 27 28 1 C. RCRA Analysis 2 1. Nature of River Watch’s Claim 3 In order to properly resolve the parties’ competing summary judgment motions, it 4 is important to accurately frame the nature of River Watch’s claim. The complaint alleges 5 “[Vacaville] is transporting hexavalent chromium – a listed hazardous waste under RCRA – 6 through [its] water system” to its residents for consumption. Compl. ¶ 2. The complaint further 7 states that the “RCRA specifically includes transporters of hazardous waste within the identified 8 class of actions liable under the statute.” Id. In light of these allegations, it at first appears River 9 Watch seeks to impose liability because Vacaville is using its water treatment system to carry and 10 dispose of a hazardous substance. Upon more focused briefing, however, and as clarified at 11 hearing, what River Watch actually claims is that Vacaville is generating a hazardous substance, 12 namely hexavalent chromium, through its potable water pumping, treatment and distribution 13 activities, and then carrying that substance through its distribution channels to its consumers in 14 the form of potable water. See Pl.’s MSJ at 7 (“Hexavalent Chromium is a Byproduct of 15 Vacaville’s Production, Treatment, Transportation and Delivery of its Product - Drinking 16 Water.”); Hr’g Tr. at 14:9–14, ECF No. 75 (“[W]hat our claim is, is that the product that they’re 17 providing is potable water, which is water that is safe to drink. . . . Hexavalent chromium is just a 18 byproduct of the extraction of that water.”); Pl.’s MSJ Reply at 5 (“[T]he hexavalent chromium 19 present in Vacaville’s potable water is a ‘useless byproduct derived from the commercial product 20 and sale of goods and services.’ The ‘goods’ are potable water. The ‘services’ are the delivery of 21 that water to customers.”). In other words, River Watch is not claiming Vacaville is participating 22 in the hazardous waste disposal and transportation process as, for example, a hazardous waste 23 disposal company would; rather, River Watch claims that in the process of creating potable water, 24 Vacaville is generating high concentrations of hexavalent chromium, which is then incorporated 25 into the potable water and distributed to city residents. See Hr’g Tr. at 11:16–20 (Court: “The 26 [byproduct] theory based on the process of the city’s obtaining and preparing the water for 27 introduction into the potable water system, I mean that’s really – that’s argument characterizing 28 what the city does, right?” River Watch counsel: “Right”). 1 This understanding is crucial to determining what is and is not “discarded 2 material” within the statutory meaning of “solid waste,” and whether hexavalent chromium 3 qualifies as such, as relevant here. 4 2. Statutory Context 5 Turning to the interpretative task at hand, which requires discerning the meaning 6 of “solid waste,” the court first orients itself within the statutory framework, while recognizing 7 that statutory interpretation must begin with the text of the statute itself. Context is particularly 8 important when considering the RCRA, because, as one court has described them, the “[RCRA] 9 regulations are . . . dense, turgid, and circuitous.” Zands v. Nelson, 779 F. Supp. 1254, 1261 10 (S.D. Cal. 1991) (internal quotations omitted) (quoting Untied States v. White, 766 F. Supp. 873, 11 880 (E.D. Wash. 1991)). “RCRA is a comprehensive environmental statute that governs the 12 treatment, storage, and disposal of solid and hazardous waste.” Meghrig v. KFC W., Inc., 516 13 U.S. 479, 483 (1996). Congress’s primary concern “was to establish the framework for a national 14 system to insure the safe management of hazardous waste.” Am. Min. Cong. v. U.S. E.P.A., 824 15 F.2d 1177, 1179 (D.C. Cir. 1987) (citing H.R. Rep. No. 1491, 94th Cong., 2d Sess. 3 (1976)). In 16 doing so, Congress sought “to reduce the amount of waste and unsalvageable materials and to 17 provide for proper and economical solid waste disposal practices.” 42 U.S.C. § 6901(a)(4). 18 The RCRA permits a private cause of action, i.e., a citizen’s suit, against any 19 person “who has contributed or who is contributing to the past or present handling, storage, 20 treatment, transportation, or disposal of any solid or hazardous waste which may present an 21 imminent and substantial endangerment to health or the environment.” Ecological Rights II, 874 22 F.3d at 1089 (quoting 42 U.S.C. § 6972(a)(1)(B)). “Solid wastes are regulated under Subchapter 23 IV §§ 6941–49a; hazardous wastes are subject to the more stringent standards of Subchapter III 24 §§ 6921–39b.” Connecticut Coastal Fishermen’s Ass’n v. Remington Arms Co., 989 F.2d 1305, 25 1313 (2d Cir. 1993). This distinction is critical because “hazardous wastes are a subset of solid 26 wastes . . . Accordingly, for a waste to be classified as hazardous, it must first qualify as a solid 27 waste under RCRA.” Id. (internal quotations and some citations omitted) (citing 42 U.S.C. 28 §6903(5)). 1 Here, Vacaville’s primary contention is that River Watch cannot succeed in 2 demonstrating that Vacaville’s potable water, and the hexavalent chromium traces the water 3 contains, constitutes a “solid waste” under the RCRA. See generally Def.’s MSJ. To assess 4 Vacaville’s argument the court must first determine the correct meaning of “solid waste”; in so 5 doing, the court follows the interpretive steps set out by the Ninth Circuit in Ecological Rights 6 Found. v. Pac. Gas & Elec. Co. (“Ecological Rights I”), 713 F.3d 502 (9th Cir. 2013). 7 3. Analysis 8 As explained in Ecological Rights I, there are three elements to a § 6972(a)(1)(B) 9 claim: 10 (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 11 waste treatment, storage or disposal facility; (2) the defendant has “contributed” or “is contributing to” the handling, storage, treatment, 12 transportation, or disposal of solid or hazardous waste; and, (3) the solid or hazardous waste in question may present an imminent and 13 substantial endangerment to health or the environment. 14 713 F.3d at 514 (citing 42 U.S.C. § 6972(a)(1)(B)). Vacaville contends the potable water it 15 serves its customers, and the hexavalent chromium the water contains after pumping, treatment 16 and distribution process, together do not constitute a “solid waste”; therefore, Vacaville argues, 17 River Watch’s claim fails as a matter of law. Def.’s MSJ at 5–13. 18 Addressing the same interpretive question here, the meaning of “solid waste,” the 19 court in Ecological Rights I began with the text of the statutory definition: “We begin with 20 RCRA’s definition of ‘solid waste,’ which is ‘garbage, refuse, sludge from a waste treatment 21 plant, water supply treatment plant, or air pollution control facility and other discarded material 22 . . . resulting from industrial, commercial, mining and agricultural operations, and from 23 community activities . . . .’” Id. at 515 (alteration in original) (citing 42 U.S.C. § 6903(27)). In 24 the absence of a statutory definition for the term “discarded,” the court then defined that term as 25 “cast aside; reject; abandon; give up,” referencing a dictionary definition. Id. (citing Safe Air for 26 Everyone v. Meyer, 373 F.3d 1035, 1041 (9th Cir. 2004) (quoting 1 The New Shorter Oxford 27 English Dictionary 684 (4th ed. 1993)); see also Am. Min. Cong., 824 F.2d at 1184 (defining 28 “discarded” as “disposed of; thrown away or abandoned” (internal quotations and citation 1 omitted)).2 If the terms of the statutory definitions are clear on their face, then the court need go 2 no further. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984) 3 (“If the intent of Congress is clear, that is the end of the matter; for the court . . . must give effect 4 to the unambiguously expressed intent of Congress.”). The court considers whether the terms are 5 clear and unambiguous below. 6 a) Applicability of “Discarded” and “Hazardous Waste” as Subset of “Solid Waste” 7 8 Before the court examines the facial applicability of the statutory terms, it briefly 9 addresses two other matters for clarification. First, in light of the statutes’ terms and the parties’ 10 arguments, River Watch must show Vacaville, as a generator or transporter, has “discarded” the 11 hexavalent chromium into its potable water to satisfy the statutory definition of “solid waste.”3 12 Although there are a number of possible categories of “waste” listed in § 6903(27), plaintiff 13 makes no contention the hexavalent chromium in Vacaville’s water is anything but “other 14 discarded material.” Indeed, River Watch concedes the material must be discarded to satisfy the 15 definition of solid waste. See Pl.’s MSJ at 17 (arguing hexavalent chromium is a “municipal by- 16 product,”4 which is a component of the broader definition of “discarded materials”); id. at 19 17 18 2 River Watch uses the term “disposing” to characterize Vacaville’s activity that it says runs afoul of the statute: “Vacaville is disposing of hexavalent chromium into its drinking water 19 distribution system and the environment which may present an imminent and substantial endangerment to both.” Pl.’s MSJ at 19. The RCRA itself defines “disposal” as “the discharge, 20 deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste 21 into or on any land or water . . . .” 42 U.S.C. § 6903(3). While “disposal” may be part of the broader RCRA vernacular, the relevant question here is whether Vacaville’s water containing 22 traces of hexavalent chromium is “discarded” material such that it can satisfy the statutory definition of “solid waste.” 23 3 Although the court previously concluded hexavalent chromium could satisfy the 24 meaning of hazardous waste regardless of whether it has been discarded, see Dismissal Order at 5–6, upon more focused briefing, considering the broader statutory definition applicable to suits 25 brought under 42 U.S.C. § 6972(a)(1)(B) and plaintiff’s concession on the matter, the court is persuaded the material at issue must be discarded in order to satisfy the statutory definition of 26 solid waste. 27 4 Under 40 C.F.R. § 261.1(c)(3), a “by-product” is defined as “a material that is not one of the primary products of a production process and is not solely or separately produced by the 28 production process.” 1 (citing regulatory definition, “which provides that abandoned materials have been ‘disposed of’ 2 and thus discarded . . . . As such, Vacaville is disposing of hexavalent chromium into its drinking 3 water”); Pl.’s Opp’n to Def.’s MSJ at 4, ECF No. 59 (“Hexavalent Chromium Being Transported 4 by Vacaville to its Customers and Discharged to Surface Waters is ‘Discarded Material.’”); see 5 also Def.’s MSJ Reply at 12, ECF No. 63 (“Apparently, the Parties now agree that a failure to 6 show there is a solid waste is dispositive.”). As relevant here, hexavalent chromium must be 7 discarded into Vacaville’s potable water to be considered a solid waste. See Ecological Rights I, 8 713 F.3d at 515 (“Congress enacted RCRA to ‘eliminate[] the last remaining loophole in 9 environmental law’ by regulating the ‘disposal of discarded materials and hazardous wastes.’” 10 (alterations in original) (citing H.R. Rep. No. 94-1491(I), at 4 (1976)). 11 Secondly, given plaintiff’s reliance on the term “hazardous waste,” that term must 12 be clarified as well. Section 6972(a)(1)(B) refers to “solid or hazardous waste,” and two separate 13 definitions are provided in § 6903 (subsection (5) defining “hazardous waste” and subsection (27) 14 defining “solid waste”). However, as referenced above, within the broader statutory scheme 15 “hazardous waste is defined as a subset of solid waste”; thus plaintiff must satisfy the definition 16 of solid waste to prevail in its arguments here. Connecticut Coastal, 989 F.2d at 1313; see also 17 Am. Min. Cong., 824 F.2d at 1179 (“Because ‘hazardous’ waste is defined as a subset of ‘solid 18 waste,’ . . . the scope of EPA’s jurisdiction is limited to those materials that constitute ‘solid 19 waste.’”). Plaintiff confirms as much: “To be a hazardous waste under RCRA § [6972](a)(1)(B) 20 the waste must first be a solid waste. The determination of whether the waste is also a hazardous 21 waste is therefore unnecessary and advisory.” Pl.’s Opp’n to Def.’s MSJ at 2. For these reasons, 22 the court focuses on the term “solid waste,” without dwelling on potentially confusing and 23 ultimately irrelevant differences between solid and hazardous waste. 24 b) Statutory Analysis 25 Turning back to the first step of statutory analysis, asking whether the statute’s 26 meaning is plain, the court finds the definition of solid waste is ambiguous with respect to 27 whether Vacaville’s drinking water containing traces of hexavalent chromium, collected from 28 surface and well waters and distributed through its potable water system to city residents, satisfies 1 the statutory definition of solid waste. As the court in Connecticut Coastal explained, “The 2 statute itself does not further define ‘discarded material,’ and this creates an ambiguity with 3 respect to the specific issue raised: At what point . . . do the materials become discarded?” 989 4 F.2d at 1314; see also Ecological Rights I, 713 F.3d at 515 (finding ambiguity in definition of 5 “solid waste” when considering whether wood preservative escaping utility poles encompassed 6 within statutory definition). Because a facial ambiguity exists, the court turns to the second step 7 of statutory construction: reviewing the legislative history. Ecological Rights I, 713 F.3d at 515 8 (citing James v. City of Costa Mesa, 700 F.3d 394, 399 n.8 (9th Cir. 2012)). 9 “RCRA is a comprehensive environmental statute that empowers EPA to regulate 10 hazardous wastes from cradle to grave.” City of Chicago v. Envtl. Def. Fund, 511 U.S. 328, 331 11 (1994). Specifically, it was “designed to address the waste disposal problem, which was, at base, 12 the high volume of waste being generated and the capacity to dispose of that waste in the 13 traditional manner.” Ecological Rights I, 713 F.3d at 515 (internal quotations and citations 14 omitted). Congress intended that the statute’s reach be broad: 15 It is not only the waste by-products of the nation’s manufacturing processes with which the committee is concerned: but also the 16 products themselves once they have served their intended purposes and are no longer wanted by the consumer. For these reasons the 17 term discarded materials is used to identify collectively those substances often referred to as industrial, municipal or post- 18 consumer waste; refuse, trash, garbage and sludge. 19 Connecticut Coastal, 989 F.2d at 1314 (emphasis in original) (citing H.R. Rep. No. 1491, 94th 20 Cong., 2d Sess. 2 (1976)). “The key to whether a manufactured product is a ‘solid waste,’ then, is 21 whether that product ‘has served its intended purpose and is no longer wanted by the consumer.’” 22 Ecological Rights I, 713 F.3d at 515 (alterations and citation omitted). And a determination of 23 whether something is a “solid waste” must be made with an eye to the statute’s overarching 24 purpose: “[T]o help States deal with the ever-increasing problem of solid waste disposal.” Am. 25 Min. Cong., 824 F.2d at 1185 (emphasis in original). 26 With this understanding, the court turns to the question posed by the pending 27 motions: Does Vacaville’s potable water contain traces of hexavalent chromium generated 28 through the production process and distributed to its residents and thus qualify as a “solid waste” 1 under the RCRA? The court finds it is not. On this question, plaintiff’s position can be distilled 2 to the following passage: 3 The unifying factor in all these cases for determining whether or not the material in question was discarded, is whether the material was 4 still useful or that its presence in the environment was an expected consequence of that use. Since hexavalent chromium in drinking 5 water has no intended use, is not wanted by the consumer, and its presence and persistence is not an “expected consequence” of 6 Vacaville’s potable water production, it is a “discarded material.” 7 Pl.’s Opp’n to Def.’s MSJ at 6 (collecting cases). As noted above, River Watch attempts to draw 8 a distinction between the hexavalent chromium and the drinking water itself, with the water being 9 the product, and the hexavalent chromium being a “useless byproduct.” Id. at 7. In other words, 10 because hexavalent chromium serves no beneficial use in the potable water itself, the water 11 cannot “give that toxin a safe haven.” Id. 12 Vacaville argues River Watch misconstrues the meaning of “byproduct” by 13 attempting to isolate the contaminant from the product itself, a maneuver Vacaville asserts goes 14 beyond the statute’s intent. Def.’s MSJ Reply at 6–12. Vacaville contends: 15 It is undisputed that the product at issue in this case is the water the City delivers to its customers. That water is not a waste, and is not 16 discarded, until after it has served its intended purpose. The intended purpose of Vacaville’s drinking water is, obviously, drinking. It is 17 not a solid waste subject to RCRA at that time because it is serving its intended purpose. 18 19 Id. at 9. Further, Vacaville contests River Watch’s claim it is disposing of “hexavalent chromium 20 by placing it into its drinking water distribution system,” see Pl.’s Opp’n to Def.’s MSJ at 9, 21 stating: “This allegation suggests that the City has vessels of [hexavalent chromium] that it needs 22 to get rid of, and it does so by dumping the [hexavalent chromium] into its drinking water system. 23 Of course, nothing of the sort is happening and River Watch has not proven otherwise.” Def.’s 24 MSJ Reply at 11–12. The court does not reach this latter argument in light of the resolution 25 below. 26 In theory, there is logic to plaintiff’s argument, that a host product cannot or 27 should not provide a safe haven for a discarded contaminant under the RCRA simply because that 28 host product is serving its intended purpose; nonetheless, the RCRA’s language, history and 1 supporting case law lead the court to conclude the RCRA is not intended to regulate Vacaville’s 2 water production process here. To satisfy the statutory definition of solid waste, the material 3 must be discarded; meaning, there must be a point at which the hazardous or contaminating 4 material is separated from the manufactured product, with no intention the material be reserved or 5 returned for further use. On this point, a number of cases addressing the question of what 6 constitutes a solid waste provide guidance, although their factual underpinnings are 7 distinguishable. See, e.g., Ecological Rights I, 713 F.3d at 515–18 (holding that point at which 8 wood preservative “leaks, spills, or otherwise escapes” from utility poles to which preservative 9 applied does not convert preservative to “solid waste”); Connecticut Coastal, 989 F.2d at 1309– 10 18 (finding lead shot and clay targets discharged by patrons of gun club constitute substantial 11 endangerment under statutory definition of solid waste); Safe Air for Everyone, 373 F.3d at 1047 12 (concluding that grass residue remaining after a Kentucky bluegrass harvest is not a “solid waste” 13 under RCRA); cf. Am. Min. Cong., 824 F.2d at 1186 (EPA regulation could not extend to 14 materials intended for reuse in manufacturing process because “materials have not yet become 15 part of the waste disposal problem; rather, they are destined for beneficial reuse of recycling in a 16 continuous process by the generating industry itself” (emphasis in original)). As these cases help 17 clarify, to be considered discarded material, and in turn a solid waste, there must be a point at 18 which the contaminant separates from the product itself with no intent for reuse, and remains in a 19 separated state with only harmful effects because stripped of any host for which it at one point 20 served a beneficial purpose. 21 Here, River Watch does not present sufficient argument or evidence to 22 demonstrate how Vacaville’s water processing activities can qualify as “discarding” “solid waste” 23 under the statute. For example, in its reply brief, River Watch asserts, “Vacaville extracts highly 24 contaminated water from a small portion of its water sources and disposes of that water into its 25 drinking water distribution system.” Pl.’s MSJ Reply at 5, ECF No. 62. In support of this 26 assertion, River Watch cites the expert opinion of Dr. Larry Russell. See Russell Report, ECF 27 No. 27-5. A review of Dr. Russell’s report reveals only conclusory allegations regarding how 28 1 Vacaville actually discharges hexavalent chromium into its potable water system.5 For example, 2 Dr. Russell discusses the Wickes Site, located in the town of Elmira proximate to Vacaville’s 3 Elmira well-field area, and former home to companies including Pacific Wood Preserving and 4 Wickes Forest Industries, Inc.; he notes the Site is a known source of hexavalent chromium and 5 other groundwater contaminants, and says that Vacaville’s pumping activities have caused a 6 greater concentration of groundwater to pull from the east, the direction of the Wickes Site from 7 the pumping stations. Russell Report at 9. Similarly, Dr. Russell identifies a number of other 8 sources of hexavalent chromium: he explains that local industry, including a business named 9 Walker Custom Chrome, as well as a process he describes as in situ oxidative remediation and 10 agricultural activities in the region dating back to the 1800s have all contributed to the elevated 11 levels of hexavalent chromium up to 30 μg/l (micrograms per liter) in the areas from which 12 Vacaville sources its potable water. Id. at 2, 10; see also Pl.’s MSJ Reply at 6 (“Hexavalent 13 chromium in Vacaville’s water is anthropogenic . . . . mean[ing] originating in human activity.”). 14 Even accepting all of Dr. Russell’s assertions as true, they fail to establish the point at which 15 Vacaville “discards” the hexavalent chromium contaminant as part of its water production 16 process. The conclusory allegation that “[h]exavalent chromium [is] discharged by Vacaville into 17 its potable water system” is insufficient to create a dispute of material fact. Russell Report at 10. 18 River Watch itself argues: “Vacaville pumps water from its wells, disinfects via chlorination, 19 adds fluoride and delivers its product to the taps of homes, businesses, schools, and public venues 20 (customers) through its distribution system.” Pl.’s MSJ at 7. This argument, with plaintiff’s 21 supporting evidence, suggests Vacaville is pumping its potable water from sources that are 22 contaminated prior to any treatment. This is because, as Dr. Russell’s report asserts, these 23 sources contain elevated levels of hexavalent chromium before Vacaville’s pumping activities, 24 not as a result of Vacaville’s pumping activities. Compare Ecological Rights I, 713 F.3d at 515 25
26 5 Vacaville objects to the admissibility of Dr. Russell’s report in its entirety. See Def.’s 27 Obj. to L. Russell Decl., ECF No. 61-13. The court need not address every objection, but does sustain Vacaville’s objections to the extent they challenge the vague or conclusory opinions 28 offered by Dr. Russell. See Fed. R. Evid. 402, 403. 1 (considering point at which “wood preservative [the product at issue] [] leaks, spills, or otherwise 2 escapes from the poles”). 3 Here, even if Vacaville’s water collection, treatment and distribution process did 4 work to elevate hexavalent chromium concentrations such that the finished drinking water 5 product contained higher levels of the contaminant than when first collected, this still would not 6 implicate the RCRA’s fundamental requirement that the contaminant be “discarded.” As 7 Vacaville asserts, the water itself is still being delivered to the intended customers in the 8 product’s intended state for use as drinking water. Def.’s MSJ Reply at 5 (“[W]hen the City 9 delivers its drinking water to its customers, it is still a useful product and would not be considered 10 discarded material.”). Pointing to other laws regulating drinking water, Vacaville represents that 11 its water is subject to and complies with the permitting requirements under the Safe Drinking 12 Water Act (“SDWA”), see, e.g., Hr’g Tr. at 27:19–28:9 (“The city has absolutely maintained 13 compliance with all th[e] requirements [of the SDWA].”); the court does not reach the merits of 14 this argument given its resolution of the anti-duplication issue above. Vacaville correctly notes 15 the RCRA is not an environmental catch-all designed to regulate all traces of potential 16 contaminants, id. at 3–5; rather, it “was designed to ‘eliminate the last remaining loophole in 17 environmental law’ by regulating the ‘disposal of discarded materials and hazardous wastes.’” 18 Connecticut Costal, 989 F.2d at 1314 (alterations omitted) (citing H.R. Rep. No. 1491, 94th 19 Cong., 2d Sess. 4 (1976)). 20 River Watch relies on the Third Circuit’s holding in Interfaith Cmty. Org. v. 21 Honeywell International, Inc., 399 F.3d 248, 259 (3rd Cir. 2005), in which the court observed, 22 “given RCRA’s language and purpose, Congress must have intended that ‘if an error is to be 23 made in applying the endangerment standard, the error must be made in favor of protecting public 24 health, welfare and the environment.’” (citation omitted). The factual backdrop of Interfaith, 25 however, underscores the type of disposal activities the RCRA is intended to remediate. 26 Interfaith addressed nearly a century’s worth of waste residue, containing high concentrations of 27 hexavalent chromium, produced by a chrome manufacturing conglomerate and its successors. Id. 28 at 252. The chrome producers would “pile[] this waste at a tidal wetlands site,” which over the 1 years resulted in “some 1,500,000 tons of [] waste, 15 to 20 feet deep, on some 34 acres.” Id. 2 Elevated pH levels at the site prevented the hexavalent chromium from reducing naturally to its 3 less-toxic form and enhanced its ability to leach into surface water and groundwater. Id. The 4 ensuing citizen’s suit brought under RCRA § 6972(a)(1)(B) sought to affirmatively enjoin the 5 manufacturers to clean up the site by excavating the contamination. Id. The court ultimately 6 found that “evidence of contamination of water, river sediments, and the river itself” more than 7 supported an endangerment finding under RCRA. Id. at 262. 8 Interfaith illustrates the type of process whereby a product, such as chrome, is 9 manufactured, and its harmful derivatives, such as hexavalent chromium, are then discarded or 10 separated in a manner prohibited by the RCRA. Indeed, in that case, there was no question 11 defendant manufacturers were discarding the hazardous material, and the defendants conceded as 12 much. Id. (“Honeywell conceded that its Site is discharging into the river and that it is possible 13 for those discharges to be harming aquatic organisms.”). Interfaith represents the type of 14 discarding activity that generates “solid waste” under the RCRA, and stands in stark contrast to 15 the activity at issue here, in which a municipality’s potable water incorporates traces of 16 hexavalent chromium as a result of sourcing and production processes. 17 Finally, plaintiff’s argument that hexavalent chromium is a useless byproduct does 18 not hold up because it circumvents the “discarded material” requirement for a solid waste; as 19 plaintiff agrees, this requirement is part of the broader statutory definition applicable in suits 20 brought under § 6972(a)(1)(B). See id. at 1316 (“RCRA regulations apply the broader statutory 21 definition of solid waste to imminent hazard suits.”); see also Pl.’s Opp’n to Def.’s MSJ at 2 22 (under RCRA § [6972](a)(1)(B) the broader statutory definition of RCRA waste applies.”). 23 Plaintiff’s reliance on the EPA definition of “byproduct,” or even the dictionary definition it 24 noted at hearing, see Hr’g Tr. at 10:5–12, does not acknowledge the need to show the material at 25 issue has been discarded. See Pl.’s Opp’n to Def.’s MSJ at 6 (citing 40 CFR 261.1(c)(3)). As 26 Vacaville argued persuasively at hearing, were the court to accept River Watch’s “byproduct” 27 theory, doing so would effect an “extreme expansion” of the RCRA by bringing a vast swath of 28 products under its reach when post-production contaminants are present. See Hr’g Tr. at 29:14– 1 23 (arguing plaintiff’s theory could theoretically bring a package of Romaine lettuce 2 contaminated with E. coli within RCRA’s reach). 3 In reaching this conclusion, the court clarifies it is not concluding hexavalent 4 chromium itself poses no threat to Vacaville citizens. See Interfaith, 399 F.3d at 252 5 (“[H]exavalent chromium is highly soluble, a known carcinogen to humans, and toxic to the 6 environment.”). Rather, the court’s findings are based solely on the manner and process by which 7 hexavalent chromium ends up in Vacaville’s potable water. Having considered the RCRA’s 8 definition of “solid waste,” the legislative history motivating its passage and the applicable case 9 law, the court finds no material question of law or fact remains such that a factfinder is needed to 10 resolve whether Vacaville’s collection, treatment and dissemination of potable water containing 11 detectable levels of hexavalent chromium renders its water supply subject to the statutory 12 definition of “solid waste.” 13 Vacaville’s summary judgment motion will be GRANTED, and, in turn, plaintiff’s 14 summary judgment motion DENIED. 15 D. Motions to Strike and to Exclude 16 River Watch also moves to exclude portions of Vacaville’s expert witness reports, 17 ECF No. 50, and to strike the declaration of Adam Love in support of Vacaville’s motion for 18 summary judgment, ECF No. 60. Vacaville separately moves to strike River Watch’s deposition 19 errata as to Dr. Russell. ECF No. 57. Because the court relied on neither Vacaville’s expert 20 reports, the declaration of Adam Love nor the proposed corrections to the deposition of 21 Dr. Russell in resolving the summary judgment motions above, it need not resolve either of these 22 motions here. Accordingly, the motions are denied as MOOT. 23 ///// 24 ///// 25 ///// 26 ///// 27 ///// 28 ///// 1 IV. CONCLUSION 2 Based on the foregoing discussion, defendant’s motion for summary judgment, 3 ECF No. 51, is GRANTED and plaintiff’s motion for summary judgment, ECF No. 40, is 4 DENIED. Plaintiff’s motion to exclude, ECF No. 50, and motion to strike, ECF No. 60, as well 5 as defendant’s motion to strike, ECF No. 57, all are DENIED as moot. The Clerk of Court is 6 directed to enter judgment in defendant’s favor and close this case. 7 IT IS SO ORDERED. 8 DATED: July 19, 2020. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28