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Volume XII, Number 17


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Overturning the 9th Circuit Vacaville Decision Would Restrict Plaintiffs' Misuse of RCRA and That's a GOOD thing!

The Natural Resources Defense Counsel has told the 9th Circuit Court of Appeals that overturning a three judge panel's "faithful application" of RCRA "could restrict private parties' abilities to use RCRA to address imminent threats to health and the environment."

Exactly one thing is accurate about that statement -- overturning the three judge panel's immediately controversial decision last fall will restrict the ability of plaintiffs to make claims that shouldn't be made and seeking attorneys' fees for having done so.

It is really important to unpack the other things the NRDC is spuriously suggesting.

First, the three judge panel's decision is anything but faithful to RCRA.   

The relevant part of this federal environmental law applies to the transportation and disposal of solid waste.  The NRDC says that minute concentrations of hexavalent chromium in groundwater, no more than twenty four parts in a billion, constitute solid waste of the sort Congress was intending to regulate when it passed this statute.  It goes on to say that the municipal water supplier is transporting that solid waste when it conveys water containing no more than 24 parts per billion of hexavalent chromium from its wells to its customers.  Other NGOs have made similar claims about similarly minute amounts of nitrogen in groundwater.

To suggest that conveying groundwater containing parts per billion of anything is the transportation of a solid waste is not only unfaithful to the language of the statute, it is an imaginative interpretation of the statute that you can't find in any regulation that has only been dreamed up by NGOs over the past few years.

Moving on to the equally imaginative suggestion of an "imminent threat to health and the environment," the NRDC neglects to tell the Court, or any of us, that the water being provided to the residents of Vacaville meets all applicable federal and state standards.

Of course, as the NRDC very well knows but neglects to mention, the federal standards include those established under the Federal Safe Drinking Water Act, and the State of California has stringent standards of its own.  It is those laws, and not the federal law having to do with the transportation and disposal of solid waste, that apply.

If we think our federal and state environmental laws need improving, we should lobby our elected officials to improve them.   

But stoking the fears of an already cynical citizenry that our federal, state and local governments aren't doing their job isn't worth whatever revenue NGOs stand to gain from misusing the laws that we have. 

“The panel decision in this case reflects a faithful application of [the Resource Conservation and Recovery Act (RCRA)]. The arguments in the en banc petition do not and, if accepted, could restrict private parties’ abilities to use RCRA to address imminent threats to health and the environment,” the Natural Resources Defense Council (NRDC) said in a Dec. 22 amicus brief opposing rehearing en banc in California River Watch v. City of Vacaville.


©1994-2022 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume XII, Number 13

About this Author

Jeffrey R. Porter, Environmental Attorney, Mintz Levin, Risk Analysis Lawyer

Jeff leads the firm’s Environmental Law Practice. He is also a member of the firm’s Policy Committee. For 23 years, he has advised clients regarding complex environmental regulatory compliance and permitting issues, including issues relating to air and water discharges and hazardous waste storage and disposal. In 2011 and 2012, the firm received the Acquisition International Legal Award for “US Environmental Law Firm of the Year.” The awards celebrate excellence and reward firms, teams and individuals for their contribution to client service, innovation and commitment to quality.