San Francisco Herring Ass'n v. Pacific Gas & Electric Co.
81 F. Supp. 3d 847
N.D. Cal.2015Background
- SFHA and Clarke sue PG&E for alleged MGP waste contamination affecting San Francisco Bay and nearby lands in North Beach, Fillmore, and Beach Street footprints; MGP wastes include PAHs, coal tar, and creosote-related residues; current testing shows persistent contamination and likely migration to Bay via groundwater and the T/S system; plaintiffs claim inadequate testing and remediation by PG&E; NOI was sent asserting CWA and RCRA violations and nuisance/trespass claims; the court must decide on PG&E’s Rule 12(b)(6) dismissal motion.
- MGP operations were historical, leaving wastes that contaminate soil, groundwater, and potentially Bay waters; Clarke’s property lies within a former North Beach MGP footprint with high B(a)P-EQ levels; testing near multiple MGP footprints reveals significant PAH contamination requiring remediations with land-use covenants; Bay contamination is linked to T/S system and groundwater; herring in the Bay are a key ecological and economic interest harmed by PAHs.
- The complaint alleges ongoing pollutant discharge from former MGP sites into navigable waters without a permit; SFHA asserts standing via its members’ interest in Bay health and herring populations; Clarke asserts property injury traceable to PG&E’s activities that relate to CWA violations; the court applies liberal standing analysis for CWA claims and allows RCRA issues to proceed where appropriate.
- PG&E argues NOI lacks specificity about a point source and that contamination is largely historic; court finds NOI sufficiently identifies ongoing violations, the point sources as MGP sites, and navigable water (Bay) involved; standing criteria satisfied for SFHA and Clarke; CWA goal is to restore water integrity, and ongoing/unpermitted discharges may be alleged; RCRA claims proceed for Clarke, while SFHA’s RCRA claim may be precluded by CWA but not dismissed at this stage; motion denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the NOI adequate to establish subject matter jurisdiction? | SFHA_n/a (plaintiffs) | PG&E: NOI lacks point-source identification | NOI adequate; notice satisfies CWA/RCRA requirements |
| Do SFHA and Clarke have standing to bring CWA claims? | SFHA and Clarke have injury in fact linked to Bay and Clarke’s property | Standing lacking for Clarke’s navigable-water injury; challenge to SFHA’s standing under RCRA | SFHA and Clarke have standing; Clarke’s injury linked to CWA violations; SFHA has RCRA standing |
| Are CWA claims adequately pleadable as ongoing violations and proper point sources? | Plaintiffs allege ongoing discharges through MGP sites and groundwater to the Bay | Discharges are historic; MGPs may not be point sources; groundwater not navigable water | Ongoing violation sufficiently pleaded; MGP sites can be point sources under broad reading; Bay is navigable water under CWA |
| Should SFHA’s RCRA claims be dismissed as duplicative or precluded by the CWA? | RCRA claims independently viable; not moot due to remediation oversight; not duplicative | Anti-duplication provision may preclude RCRA claim | SFHA’s RCRA claim not dismissed under 6905; RCRA not precluded; discretion reserved for further development |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (pleading plausibility standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (pleading standard after Twombly; plausibility)
- Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49 (U.S. 1987) (notice and ongoing violation concept for CWA)
- San Francisco BayKeeper, Inc. v. Tosco Corp., 309 F.3d 1153 (9th Cir. 2002) (CWA notice sufficiency; reasonably specific notice)
- Sierra Club v. U.S. Army Corps of Eng’rs, 645 F.3d 978 (8th Cir. 2011) (standing and CWA violation concepts)
- Envtl. Prot. Info. Ctr. v. Pac. Lumber Co., 469 F. Supp. 2d 803 (N.D. Cal. 2007) (liberal standing in environmental claims)
- Hawai Wildlife Fund v. County of Maui, 24 F. Supp. 3d 980 (D. Haw. 2014) (discharges via groundwater to ocean can be CWA violation)
- Kentuckians for Commonwealth v. U.S. Army Corps of Engineers, 963 F. Supp. 2d 670 (W.D. Ky. 2013) (standing and CWA/RCRA considerations)
- Snoqualmie Indian Tribe v. F.E.R.C., 545 F.3d 1207 (9th Cir. 2008) (liberal standing related to environmental impacts)
- Sierra Club v. Union Oil Co., 853 F.2d 667 (9th Cir. 1988) (standing and ongoing violation concepts under CWA)
- Price v. U.S. Navy, 39 F.3d 1011 (9th Cir. 1994) (remediation barriers and non-capping scenarios)