Appellate court revives watchdog's lawsuit against Vacaville over toxin in tap water

(Stock image/Graphic by Solano NewsNet)

A federal appellate court has tossed a district judge’s summary judgment for the City of Vacaville in a lawsuit that was filed by a watchdog organization over a known carcinogen that is present in the city’s drinking water.

In 2017, a group called California River Watch sued the City of Vacaville in federal court, arguing that the presence of hexavalent chromium (commonly known as “chromium-6”), a cancer-causing carcinogen, in Vacaville’s drinking water supply violated federal environmental regulations.

The City of Vacaville contends that its drinking water is safe for consumption and says it is in the process of cleaning wells where the naturally-occurring carcinogen is present. The water, which is delivered to more than 90,000 residents, otherwise meets both federal and state requirements for standards, including safety.

California River Watch sought a novel approach in its lawsuit, arguing that the City of Vacaville’s transmission of drinking water with hexavalent chromium made it a known transporter of solid waste. They argued that transportation of waste through water pipelines violated the federal Resource Conservation and Recovery Act (RCRA).

In a response to that lawsuit, the City of Vacaville said it was immune from the suit because certain sources of its water were beyond its control, among other things.

Last year, Sacramento-based District Judge Kimberly Mueller sided against California River Watch, finding that the Resource Conservation and Recovery Act didn’t apply to the City of Vacaville’s sourcing and delivery of drinking water.

But this week, a federal appellate court rejected her finding, ordering the case back to the district court for a second look after finding that the city’s delivery of water with hexavalent chromium was akin to transporting solid waste.

Appellate court judges also rejected expert testimony from a toxicologist called by the City of Vacaville who assured the drinking water was safe. Instead, they focused on an expert brought by California River Watch, who argued that the hexavalent chromium found in Vacaville’s drinking water supply came from a source near an old wood processing facility in Elmira, and that the hexavalent chromium was the byproduct of that wood processing activity, not a naturally-occurring substance.

In a statement emailed to a legal news outlet, an attorney representing the City of Vacaville said the city disagreed with the appellate court’s decision.

“We disagree with the majority opinion’s interpretation of ‘solid waste’ under RCRA,” attorney Gregory Newmark said. “Even if hexavalent chromium from the listed RCRA waste at the [Elmira site] migrated to the city’s wells, which we can prove did not happen, the city never transported that wood preservative solid waste from the site.”

Last year, the City of Vacaville praised an earlier decision awarding it summary judgment in the case, effectively tossing out California River Watch’s complaint until the appellate court reversed that decision this week.

In a statement issued by city officials in July 2020, the City of Vacaville said it was “grateful that the court acknowledged environmental groups cannot force cities to unnecessarily spend millions of ratepayer dollars to reduce naturally-occurring chromium to levels much lower than the limits set by the state or federal government.”

This week, California River Watch said the City of Vacaville had already spent around $500,000 in taxpayer money fighting their lawsuit. It was not clear how the group determined that amount. The City of Vacaville has not released any information about how much the case has cost, but California River Watch estimates accrued taxpayer-funded legal fees will be much higher now that the case appears headed for trial.

An attorney representing California River Watch said the group had earlier agreed to “waive fees in exchange for Vacaville providing its potable water consumers publicly-available information as to the dangers of consuming hexavalent chromium.” But it does not appear the City of Vacaville ever took the group up on its offer.

“There is a serious issue here concerning the misuse of funds in order to keep the public in the dark,” Jack Silver, an attorney representing California River Watch, said in a statement on Wednesday.

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