Ecological Rights Foundation v. Pacific Gas & Electric Co.
803 F. Supp. 2d 1056
N.D. Cal.2011Background
- PG&E and Pacific Bell operate in Alameda, Contra Costa, Marin, and San Francisco Counties and use oil-pentachlorophenol–treated wooden poles.
- Plaintiff Ecological Rights Foundation alleges the poles leak/pour pentachlorophenol, contaminating San Francisco Bay, its tributaries, and wetlands.
- Plaintiff served multiple prelawsuit notices under CWA and RCRA beginning June 2009, with later notices continuing into 2010.
- Plaintiff filed a Second Amended Complaint (SAC) asserting three claims: CWA discharge without NPDES permit (two counts) and RCRA disposal claim.
- The court grants the motions to dismiss, concluding no CWA point source discharge and no RCRA disposal claim, and dismisses with prejudice.
- Pacific Gas & Electric and Pacific Bell move to dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether pre-lawsuit notices satisfy CWA/RCRA prerequisites. | Plaintiff contends notices provided sufficient detail. | Defendants argue notices were deficient for pinpointing pole locations. | Not lacking; notices adequate under governing rules. |
| Whether wooden poles constitute a point source under the CWA. | Poles release pollutants via stormwater, connecting to a point source. | No discrete conveyance channels pollutants to navigable waters; not a point source. | Poles do not constitute a point source discharge under the CWA. |
| Whether CWA claims fail for lack of point source discharge or association with industrial activity. | There is a pollutant discharge from a point source associated with industrial activity. | No point source discharge; no NPDES permit violation. | CWA claims fail for lack of a point source discharge. |
| Whether Plaintiff's RCRA claim is viable as disposal of solid waste. | Liquid/pollutant leakage constitutes disposal of solid waste. | Passive leakage due to weather does not show disposal by defendants. | RCRA claim dismissed; no disposal by defendants. |
Key Cases Cited
- Brown v. Defenders of Wildlife, 191 F.3d 1159 (9th Cir. 1999) (distinguishes point vs. nonpoint discharges under the CWA)
- Northwest Environmental Defense Ctr. v. Brown, 617 F.3d 1176 (9th Cir. 2010) (stormwater regulation and phase II/phase I regimes; context for stormwater as point source)
- Trustees for Alaska v. EPA, 749 F.2d 549 (9th Cir. 1984) (point vs. nonpoint source distinction hinges on discrete conveyance)
- Zands v. Nelson, 779 F. Supp. 1254 (S.D. Cal. 1991) (discusses disposal under Safe Air approach; distinguishable facts)
- Carson Harbor Village v. Unocal Corp., 270 F.3d 868 (9th Cir. 2001) (disposal concepts; application to passive migration considerations)
- Safe Air for Everyone v. Meyer, 373 F.3d 1035 (9th Cir. 2004) (limits on what constitutes discarded material under RCRA)