Ecological Rights Foundation v. Pacific Gas & Electric Co.
713 F.3d 502
| 9th Cir. | 2013Background
- ERF sued PG&E and Pacific Bell alleging CWA and RCRA violations from PCP-based wood preservative leaching from utility poles in the San Francisco Bay Area.
- The district court dismissed ERF’s second amended complaint for failure to state a claim under Rule 12(b)(6) without leave to amend; ERF appealed.
- ERF’s CWA claim argued stormwater from poles is a point source or is associated with industrial activity; ERF’s RCRA claim argued the preservative is a solid waste.
- ERF served multiple pre-suit notices (June 2009, October 2009, January 2010) before filing the suit, with Pacific Bell added later.
- The court held: stormwater runoff from poles is not a point source or associated with industrial activity under the CWA; PCP preservative escaping from poles is not a RCRA solid waste; and leave to amend was properly denied; no intervening EPA/state action occurred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether pole-origin stormwater is a CWA point source | ERF alleges stormwater carrying preservative is a discrete conveyance | Poles are not discernible, confined conveyances | Not a point source under the CWA |
| Whether stormwater from poles is associated with industrial activity under the CWA | Discharge tied to industrial activity via poles | Poles not directly related to manufacturing or industrial facilities | Not associated with industrial activity under 40 C.F.R. § 122.26(b)(14) |
| Whether PCP preservative escaping from poles is a RCRA solid waste | Preservative that escapes is discarded material | Preservative serves its intended purpose and is not discarded solid waste | Not a RCRA solid waste under current authority |
| Whether ERF’s pre-suit notices satisfied jurisdictional requirements | Notices sufficiently identified violations and locations | Notices were deficient | Notices satisfied requirements; jurisdiction valid |
| Whether dismissal without leave to amend was proper | Amendment could cure pleading defects | Amendment would be futile | Dismissal without leave to amend proper |
Key Cases Cited
- League of Wilderness Defenders v. Forsgren, 309 F.3d 1181 (9th Cir. 2002) (stormwater regulatory framework and point/nonpoint source distinctions)
- Northwest Environmental Defense Center v. Brown, 640 F.3d 1063 (9th Cir. 2010) (stormwater regulation and industrial activity definitions)
- Environmental Defense Ctr. v. U.S. EPA, 344 F.3d 832 (9th Cir. 2003) (EPA regulations governing stormwater discharges)
- NRDC v. Costle, 568 F.2d 1369 (D.C. Cir. 1977) (D.C. Circuit on NPDES permit scope under the Clean Water Act)
- Decker v. Northwest Environmental Defense Ctr., 133 S. Ct. 1326 (Supreme Court 2013) (addressed scope of stormwater regulation under § 122.26(b)(14))
- No Spray Coal., Inc. v. City of New York, 252 F.3d 148 (2d Cir. 2001) (reckoning discarded status of certain pesticide wastes under RCRA)
- Parker v. Scrap Metal Processors, Inc., 386 F.3d 993 (11th Cir. 2004) (interpretations of regulatory scope for stormwater)