Ninth Circuit Holds that Dry Cleaning Equipment Manufacturers Must Engage in Active, Not Merely Passive, Activities to be Liable Under RCRA

In litigation involving soil and/or groundwater contamination from releases related to dry cleaning equipment and PCE, it has been common for injured property owners to sue the dry cleaning equipment manufacturers, among others. One of the primary legal tools used in such litigation is the citizen-suit provision of RCRA, 42 U.S.C. Section 6972.

In Hinds Investments, L.P., et al v. Angioli, et al, 654 F.3d 846 (9th Cir. 2011), the Ninth Circuit addressed this issue. In the case, the owners' shopping centers had housed dry cleaning stores, and their groundwater was contaminated with PCE used in dry cleaning. The owners claimed that the manufacturers were liable under the citizen-suit provision of RCRA because they employed faulty machine design and distributed manuals that instructed users to dispose of contaminated waste in drains or open sewers. The Court of Appeals held that the owners did not state a claim for contributor liability under 42 U.S.C. Section 6972(a)(1)(B). The Cour held that Section 6972 required active involvement in or some degree of control over the waste disposal process. Designing machinery, even if the machinery produced waste as a byproduct, did not cause a manufacturer to be a contributor to waste disposal; a more active role with a more direct connection to the waste was required, such as handling, storage, treatment, transportation, or disposal of the waste.

Having been involved in numerous dry cleaning sites, and having seen operators follow exactly what was prescribed in the equipment manufacturers' manuals, resulting in contamination of the site, the Court's reasoning seems rather flawed. If poorly designed equipment is put into the stream of commerce, and its operating instructions lead to site contamination, then the classification of such activities as "passive" and not "contributing" to site contamination under RCRA seems of questionable logic, especially given the broad interpretation given by many courts to the "contribute" aspect of RCRA.

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