ECOLOGICAL RIGHTS FOUNDATION, Plаintiff-Appellant, v. PACIFIC GAS & ELECTRIC COMPANY, Defendant-Appellee.
No. 15-15424
United States Court of Appeals, Ninth Circuit
Filed November 2, 2017
874 F.3d 1083
Argued and Submitted February 17, 2017—San Francisco, California
We need not decide whether to adopt the “additional appropriate evidence” approach to resolve this case. As we explain below, we conclude that the Government‘s evidence established only a “remote, outlandish, or simply hypothetical” possibility that Johnson‘s reports would reach federal officers. Johnson‘s motion for a judgment of acquittal therefore should have been granted.
B.
At trial, the Government рresented minimal evidence of a federal nexus. First, the Government presented evidence that the Santa Barbara county sheriff‘s use of force policies incorporated Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), which established that the excessive use of force by law enforcement officers violates the Constitution. The Government showed that Johnson received training on Graham, that he knew of Graham, and that he took an oath of office to uphold the Constitution. Second, the Government‘s expert witness testified that he reviewed a statement of the incident that C.O. gave to his public defender. Finally, as the district court highlighted, the same expert testified that he reviewed one of Johnson‘s reports as well as transcripts of witness interviews conducted by an FBI agent.
Taken together or separately, this evidence does not demonstrate that Johnson‘s reports were reasonably likely to reach a federal officer. Even if Johnson knew he was covering up a constitutional violation, an expert witness‘s passing mention of files he reviewed in preparation to testify at the second trial does not bear on whether, at the time Johnson wrote the reports, there was “more than [a] remote, outlandish, or simply hypothetical” possibility that those reports would reach a federal officer.
The Government could have met the Fowler standard in a variety of ways, and likely without much difficulty. Evidence suggesting, for example, that federal officials (1) were in contact with the county jail, (2) had investigated similar incidents at the jail in the past, or (3) had established a policy or practice of investigating similar incidents in the area, of assisting state and local officials with investigations into such incidents, or of sharing information with state and local officials, would likely all aid the Government in satisfying the federal nexus requirement. But, in this case, the Government‘s evidence was too remote.
The judgment is REVERSED.
Bradley Rochlen (argued), J. Michael Showalter, and Russell B. Selman, Schiff Hardin LLP, Chicago, Illinois, for Defendant-Appellee.
Judy B. Harvey (argued) and Aaron Avila, Environment & Natural Resources Division, United States Department of Justice, Washington, D.C., for Amicus Curiae United States.
Before: MARSHA S. BERZON and RICHARD R. CLIFTON, Circuit Judges, and KIMBERLY J. MUELLER,* District Judge.
OPINION
BERZON, Circuit Judge:
According to the complaint in this case, the Pacific Gas & Electric Company (“PG&E“) disperses wood treatment chemicals from various of its facilities into San Francisco and Humboldt Bays via indirect and direct stormwater discharges. The Clean Water Act (“CWA“),
Our principal question is whether the citizen suit provision of a different statute, the Resource Conservation and Recovery Act (“RCRA“),
I. Statutory Background
At the heart of this case is the overlap between two statutory schemes, the Resource Conservation and Recovery Act and the Clean Water Act. We begin by outlining the statutes and identifying the provisions most relevant here.
A. The CWA and stormwater discharges
The Clean Water Act, enacted in 1972 as an amendment to the Federal Water Pollution Control Act, was designed “to restore and maintain the chemical, physical, and biological integrity of the Nation‘s waters.”
The principal permitting program, the National Pollution Discharge Elimination System (“NPDES“), is defined in CWA section 402,
After the CWA‘s passage in 1972, EPA categorically exempted stormwater from NPDES permit regulations. In 1977, however, the D.C. Circuit held that categorical exemption invalid. NRDC v. Costle, 568 F.2d 1369, 1377 (D.C. Cir. 1977). Ten years after Costle, Congress amended the CWA to address the NPDES permitting of stormwater discharges. See Water Quality Act of 1987, Pub. L. No. 100-4 § 405, 101 Stat. 7, 69-71 (codified at
Specifically, the 1987 Act established a moratorium on NPDES permit requirements for most types of stormwater discharges.
The 1987 Act also identified the next phase of stormwater requirements, which became known as “Phase II.” See id. at 840. During that phase, EPA was required to “designate stormwater discharges ... to be regulated” and then to “establish a comprehensive program to regulate such designated sources.”
EPA promulgated its “Phase II Regulations” in 1999. See National Pollutant Discharge Elimination System—Regulations for Revision of the Water Pollution Control Program Addressing Storm Water Discharges, 64 Fed. Reg. 68,722 (Dec. 8, 1999) (“Phase II Regulations“). In those regulations, EPA designated only two categories of stormwater discharges as coming within its Phase II-required permitting program: discharges from small municipal sewer systems and discharges associated with small construction activity. Id.
PG&E‘s stormwater discharges do not fall into either Phase II-regulated category. It is also common ground for purposes of this appeal that the Phase I Regulations—and all other relevant provisions in
B. RCRA, citizen suits, and anti-duplication
RCRA has a different focus than the CWA. RCRA “is a comprehensive environmental statute that governs the treatment, storage, and disposal of solid and hazardous waste.” Meghrig v. KFC W., Inc., 516 U.S. 479, 483, 116 S.Ct. 1251, 134 L.Ed.2d 121 (1996). Enacted in 1976, RCRA aimed to
eliminate[] the last remaining loophole in environmental law, that of unregulated land disposal of discarded materials and hazardous wastes. ... [T]he [relevant] Committee believe[d] that [RCRA was] necessary if other environmental laws [were] to be both cost and environmentally effective. ... [T]he federal government [was] spending billions of dollars to remove pollutants from the air and water, only to dispose of such pollutants on the land in an environmentally unsound manner ... often result[ing] in air pollution, subsurface leachate and surface run-off, which affect air and water quality. [RCRA aimed to] eliminate this problem and permit the environmental laws to function in a coordinated and effective way.
H.R. Rep. No. 94-1491, at 4 (1976), reprinted in 1976 U.S.C.C.A.N. 6238, 6241-42.
As here relevant, RCRA provides for private enforcement via citizen suit. It allows, first, for private actions against entities “alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to [RCRA].”
The endangerment prоvision does not require a private plaintiff to show that the defendant‘s actions violated any specific RCRA requirement or any RCRA-mandated order or permit. See Goldfarb v. Mayor & City Council of Baltimore, 791 F.3d 500, 505 (4th Cir. 2015); see also AM Int‘l, Inc. v. Datacard Corp., DBS, 106 F.3d 1342, 1349 (7th Cir. 1997). Rather, the endangerment provision broadly permits relief “that ameliorates present or obviates the risk of future ‘imminent’ harms.” Meghrig, 516 U.S. at 486.
Notwithstanding RCRA‘s overarching goals and its expansive citizen suit provisions, RCRA does not supersede conflicting requirements established under other environmental statutes, including the CWA. Toward that end, RCRA section 1006 contains two provisions addressing the potential duplicative regulation that might otherwise result from RCRA‘s application alongside substantively overlapping environmental statutes.2
First, the statute‘s “integration” provision, RCRA section 1006(b)(1), requires:
Second, the statute‘s “anti-duplication” provision, RCRA section 1006(a), states:
Nothing in this chapter shall be construed to apply to ... any activity or substance which is subject to the Federal Water Pollution Control Act [i.e., CWA], the Safe Drinking Water Act, the Marine Protection, Research and Sanctuaries Act of 1972, or the Atomic Energy Act of 1954 except to the extent that such application (or regulation) is not inconsistent with the requirements of such Acts.
II. Factual and Procedural Background
A. Pleadings and Fact Discovery
Ecological Rights Foundation (“EcoRights“) filed suit against PG&E under the citizen suit provisions of both the CWA and RCRA. See
Drilling, cutting, moving, and storing the treated wood, EcoRights alleged, leads to the spread of chemically treated sawdust and woodchips on the PG&E facilities’ grounds. Additionally, at some service facilities, PG&E treats new poles with PCP-infused oils and then cleans or stores the newly treated poles in a manner that allows excess oil to drip to the pavement. EcoRights further identified several methods of dispersal, or “pathways,” by which PG&E allowed or encouraged the PCP-infused waste to migrate from its facilities into San Francisco and Humboldt Bays (“the Bays“).
EcoRights claimed that PG&E‘s activities violated (1) the CWA, by discharging pollution into the waters of the United States without a permit, and (2) the RCRA, by contributing to the handling, storage, or disposal of solid waste disposal which may present an imminent and substantial endangerment to health and the environment in and around the Bays. EcoRights’ RCRA
The district court confined initial fact discovery to four of the thirty-one Northern California facilities listed in EcoRights’ complaint. The parties accоrdingly proceeded with discovery only as to one PG&E facility in Oakland, one in Hayward, and two in Eureka.
B. Summary Judgment Orders
After discovery concerning the four facilities, the parties filed cross-motions for partial summary judgment as to EcoRights’ standing. EcoRights’ RCRA claim was founded on PG&E‘s “on-site waste disposal practices [that] present an imminent and substantial endangerment to health or the environment with respect to ... San Francisco and Humboldt Bays.” Members of EcoRights filed declarations attesting that their aesthetic and recreational enjoyment of the Bays had been and would continue to be impaired by pollution traceable to PG&E discharges. Based on the member declarations, the district court concluded that EcoRights had organizational standing to pursue the RCRA claim.
The parties next filed cross-motions for summary judgment on EcoRights’ claim that stormwater discharges from the facilities violated the CWA. Citizen suits against private parties under the CWA are authorized only for alleged violations of an effluent standard or limitаtion imposed under the statute—here, an alleged failure to obtain required NPDES permits. See
Cross-motions for summary judgment on the RCRA claim followed. The district court held “[t]he basic facts regarding PG&E‘s handling of utility poles at its facilities ... largely undisputed, at least for the purposes of [the] motion[s].” The undisputed evidence, the district court held, indicated that (1) PCP-laden oils drip off of new poles that are stored outdoors on uncovered racks; (2) used poles are sometimes cut into smaller pieces at the facilities, leaving PCP-treated sawdust on the ground; and (3) all retired, chopped-up poles are supposed to be stored in water-tight waste bins, but such PCP-treated waste products are sometimes left directly on the ground. In sum, the district court concluded, PCP oils and PCP-treated woоd waste end up on the ground at the PG&E facilities.
The district court divided its analysis of the RCRA claim into two parts, based on the two different “pathways” by which PCP-infused wastes allegedly travel offsite and into the Bays. The district court held, first, that the tire-tracking theory failed because EcoRights had not “come forward with actual evidence, as opposed to speculation,” regarding vehicle tracking at PG&E sites. Second, the district court concluded that EcoRights’ stormwater-based pathway failed because “there is no question that stormwater discharged from point sources like the PG&E facilities is subject to regulation under the Clean Water Act,” and it interpreted RCRA‘s anti-duplication provision to prevent the creation under RCRA of “an additional avenue to impose a different regulatory requirement.” These holdings applied only to the four facilities for which discovery had occurred, but the district court noted that
C. Appeal
EcoRights appeals the grant of summary judgment to PG&E on the RCRA claim only. Its primary assertion is that the district court erroneously interpreted RCRA‘s anti-duplication provision, RCRA section 1006(a). See
EPA filed a brief as amicus curiae and appeared at argument in support of EcoRights. EPA maintains that PG&E did not identify an actual inconsistency between the CWA and RCRA, and that the district court therefore erred in holding that RCRA‘s anti-duplication provision restricted the reach of EcoRights’ citizen suit under RCRA.
In its answering brief, PG&E disagrees with EcoRights and EPA as to the impact of the RCRA anti-duplication provision. PG&E also renews, with respect to the Hayward fаcility only, its argument that EcoRights lacks organizational standing to sue.
3III. Standing
We consider first whether EcoRights has standing to sue PG&E regarding PG&E‘s disposal activities at its Hayward facility. It does.3
To have organizational standing, at least one EcoRights member must “have standing to sue in [his] own right.” Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1147 (9th Cir. 2000); see also Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Thus, EcoRights must show that (1) a member “has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., TOC, Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)); see also Spokeo, Inc. v. Robins, 578 U.S. 330, 136 S.Ct. 1540, 1547-50, 194 L.Ed.2d 635 (2016).
PG&E maintains that EcoRights failed to demonstrate that any of its members suffered an injury in fact with respect to the Hayward facility. Not so.
EcoRights presented declarations from several of its members alleging particularized harms resulting from pollution in the
PG&E maintains that these injury allegations are too generalized, as such injuries may be shared by millions of people who live in or travel to the San Francisco Bay Area. That contention falls short.
“[T]he fact that a harm is widely shared does not necessarily render it a generalized grievance.” Novak v. United States, 795 F.3d 1012, 1018 (9th Cir. 2015) (internal citations and quotation marks omitted). Rather, a grievance too “generalized” for standing purposes is one characterized by its “abstract and indefinite nature—for example, harm to the common concern for obedience to law.” Id. (internal citation and quotation marks omitted). Here, several EcoRights members have attested to concrete and particularized harm to their own “recreational, aesthetic, and spiritual” uses and enjoyment of “the waters of San Francisco Bay adjacent to Alameda County and Central San Francisco Bay.” That alleged injury is neither abstract nor indefinite, so the generalized grievance bar does not apply.
PG&E also proposes that for the alleged injury to be “credible,” EcoRights’ members must demonstrate that their uses or enjoyment of San Francisco Bay are near PG&E‘s facilities. That contention too misses the mark.
“The ‘injury in fact’ requirement in environmental cases is satisfied if an individual adequately shows that she has an aesthetic or recreational interest in a particular place, or animal, or plant species and that that interest is impaired by a defendant‘s conduct.” Pac. Lumber Co., 230 F.3d at 1147. A proximity concern arises only where “a plaintiff claiming injury from environmental damage [fails to demonstrate] use [of] the area affected by the challenged activity,” and instead only shows that she uses “an area roughly ‘in the vicinity’ of it.” Lujan, 504 U.S. at 565-66 (citation omitted) (emphasis added). Whether the members use an area near the source of environmental damage elsewhere is of no moment.
Here, EcoRights’ RCRA suit is based on alleged endangerment to San Francisco Bay as a whole posed by PG&E‘s onsite waste disposal practices at its facilities. So it suffices for EcoRights to demonstrate concrete and particularized injuries to its members’ aesthetic and recreational enjoyment of San Francisco Bay as a whole.
At bottom, PG&E‘s arguments appear to challenge as implausible the notion that polluted stormwater from the Hayward facility could possibly have an environmental impact on a body of water as large as San Francisco Bay. “Requiring the plaintiff to
Moreover, “[the] ‘injury in fact’ requirement in environmental cases is not ... reducible to inflexible, judicially mandated time or distance guidelines. ...” Id. at 1148. For instance, in Laidlaw, a Sierra Club member who “claimed only that he ‘had canoed’ on the river some 40 miles downstream from the incinerator” afforded the Sierra Club standing to bring a CWA action against the incinerator‘s owner. Pac. Lumber Co., 230 F.3d at 1149 (citing Laidlaw, 528 U.S. at 183).
By attesting to their reduced ability to enjoy eating local seafood in Bay Area restaurants, observing birds and other wildlife from the air or from the wetlands around Oakland Airport, or sailing and swimming safely in San Francisco Bay, among other harms, EcoRights members have alleged concrete and particularized injuries from the alleged migration of PCP and dioxins from PG&E‘s Hayward facility to the affected area, San Francisco Bay. Whether that inflow of pollutants from PG&E‘s Hayward facility is actually significant enough to harm the affected area is a merits question, not a standing question.
IV. Stormwater Pathway
We turn now to the core of this appeal—whether PG&E was entitled to summary judgment with respect to EcoRights’ stormwater RCRA claim in light of RCRA‘s anti-duplication provision. The district court reasoned that stormwater discharge into navigable waters is “subject to [the CWA]” under RCRA‘s anti-duplication provision,
The anti-duplication provision in RCRA section 1006(a) does not reach so far. The language, context, and persuasive authorities interpreting that provision, we conclude, require us to determine whether the CWA actually imposes any specific statutory “requirements” on PG&E‘s stormwater discharges, and, if so, whether those “requirements” are “inconsistent” with any possible remedy under EcoRights’ RCRA citizen suit.
A. Insufficiency of Potential Regulation As a Trigger of RCRA‘s Anti-Duplication Provision
To construe RCRA‘s anti-duplication provision, we first consider whether its meaning is clear. See Avila v. Spokane Sch. Dist. 81, 852 F.3d 936, 941 (9th Cir. 2017). “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which the language is used, and the broader context of the statute as a whole.” Geo-Energy Partners-1983 Ltd. v. Salazar, 613 F.3d 946, 956 (9th Cir. 2010) (internal quotation marks and citation omitted).
1. Text of RCRA‘s Anti-Duplication Provision
RCRA‘s anti-duplication provision, section 1006(a), initially curtails RCRA‘s application with respect to “any activity or substance which is subject to” the CWA, the Safe Drinking Water Act, the Atomic
“[I]nconsistent” is not defined in section 1006(a) or anywhere else in RCRA. See Goldfarb, 791 F.3d at 509-10. After consulting the dictionary definition of the term, the Fourth Circuit concluded that the “CWA must require something fundamentally at odds with what RCRA would otherwise require” to be “inconsistent” for the purposes of RCRA‘s anti-duplication provision. Id. at 510. We agree. According to the dictionary definition of “inconsistent,” the application of RCRA must be “incompatible, incongruous, [or] inharmonious” with CWA requirements for the anti-duplication provision to apply. Webster‘s Third New Int‘l Dictionary (1971) at 1144; accord Webster‘s Third New Int‘l Dictionary (2002) at 1144. Put another way, section 1006(a) does not bar RCRA‘s applicatiоn unless requirements under RCRA and the CWA are “[m]utually repugnant or contradictory,” such that the application of “one implies the abrogation or abandonment of the other.” Black‘s Law Dictionary 907 (4th ed. rev. 1968); see also Black‘s Law Dictionary (10th ed. rev. 2014) (defining “inconsistent” as “[l]acking agreement among parts; not compatible with another fact or claim“).
The anti-duplication provision also does not provide a definition of the term “requirements.” But the reference to the “requirements” of certain statutes must refer to legal requirements. A legal requirement is “a rule of law that must be obeyed,” Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1171 (9th Cir. 2009) (quoting Bates v. Dow Agrosciences LLC, 544 U.S. 431, 445, 125 S.Ct. 1788, 161 L.Ed.2d 687 (2005))—in other words, “[s]omething that must be done because of a law or rule; something legally imposed, called for, or demanded.” Black‘s Law Dictionary (10th ed. 2014); see also Black‘s Law Dictionary 1468 (4th ed. rev. 1968) (defining “require” as “[t]o direct, order, demand, instruct, command, claim, compel, request, need, exact“).
Taking the terms together, then, RCRA‘s anti-duplication provision does not bar RCRA‘s аpplication unless that application contradicts a specific mandate imposed under the CWA (or another statute listed in RCRA section 1006(a)).
2. Context of RCRA‘s Anti-Duplication Provision
The pertinent contexts—RCRA section 1006 as a whole and RCRA‘s overall statutory scheme—support this reading. Two provisions in RCRA are meaningful only if the CWA‘s potential application to a waste product does not, on its own, bar RCRA‘s application.
First, the CWA and two other statutes listed in RCRA section 1006(a) are also listed in RCRA section 1006(b)(1), RCRA‘s “integration” provision.4 See
By including the CWA in the integration provision, Congress recognized that there would be overlapping coverage between the CWA and RCRA, the anti-duplication provision notwithstanding. This understanding of RCRA‘s integration provision is hard to reconcile with PG&E‘s proposed interpretation of the anti-duplication provision. If RCRA‘s application were prohibited as to all matters potentially regulable under the CWA, as PG&E supposes, the integration clause in RCRA section 1006(b)(1) would serve little purpose.
Second, PG&E‘s interpretation would also render meaningless specific exclusions from RCRA coverage. RCRA extends only to “solid wastes.”
3. Persuasive Authorities
In line with our analysis of the statute‘s language and context, most other courts have applied RCRA‘s anti-duplication provision only where there is an inconsistency with specific mandates, such as permit requirements and consent orders, imposed under a listed statute. See Edison Elec. Inst. v. U.S. EPA, 996 F.2d 326, 337 (D.C. Cir. 1993); S.F. Herring Ass‘n v. Pac. Gas & Elec. Co., 81 F.Supp.3d 847, 866 (N.D. Cal. 2015); Cmty. Ass‘n for Restoration of the Env‘t, Inc. v. George & Margaret LLC, 954 F.Supp.2d 1151, 1160 (E.D. Wash. 2013); Raritan Baykeeper, Inc. v. NL Indus., Inc., No. 09-cv-4117, 2013 WL 103880, at *27 (D.N.J. Jan. 8, 2013) (unpublished).
Similarly, courts generally have held that there is no “inherent inconsistency of applying RCRA to activities already regulated by [one of the statutes listed in RCRA section 1006(a)].” Vernon Vill., Inc. v. Gottier, 755 F.Supp. 1142, 1154 (D. Conn. 1990) (emphasis omitted). For example, in Edison Electric Institute, the D.C. Circuit rejected the defendant‘s “generalized claim that the Agency‘s interpretation [which applied RCRA to “impose additional burdens on nuclear power generators“] interferes with the ‘primary purpose’ of
Additionally, in 1984, the Department of Justice‘s (“DOJ“) Office of Legal Counsel (“OLC“) determined that RCRA‘s anti-duplication prоvision does not come into play simply because there are “overlapping regulatory schemes.” See Application of the Res. Conservation and Recovery Act to the Dep‘t of Energy‘s Atomic Energy Act Facilities, 8 Op. O.L.C. 6, 11, 13, 1984 WL 178349 (1984) (“OLC Opinion“). The OLC Opinion was issued to address a disagreement between EPA and the Department of Energy concerning whether waste treatment and disposal activities at the Department of Energy‘s nuclear facilities were subject to RCRA regulation. Id. at 6. The OLC sided with EPA, concluding that the “requirements” language of RCRA section 1006(a) “implies some prescriptive content, i.e., specific directives that require an agency or a person to take or refrain from taking certain actions, to follow certain procedures, or to meet certain standards and regulations.” Id. at 16. And, said OLC, section 1006(a)‘s “not inconsistent” language requires determining whether there is a conflict “between individual regulations or requirements imposed by” the statutes listed in section 1006(a) and the would-be requirements imposed under RCRA. Id. at 11, 13, 16. Under the OLC interpretation—as under ours—the potential for inconsistent overlap is insufficient; only an actual, and actually inconsistent, requirement triggers the RCRA anti-duplication provision.5
These persuasive authorities support our reading of the text of RCRA section 1006(a) and its statutory context. RCRA‘s anti-duplication provision does not bar RCRA‘s application unless the specific application would conflict with identifiable legal requirements promulgated under the CWA or another listed statute.
B. Application of RCRA‘s Anti-Duplication Provision Here
We next consider whether PG&E has identified such legal requirements.
What CWA legal requirements might apply here? PG&E has not identified any CWA permits that establish particular requirements for its stormwater discharges. That gap is not an oversight. The Clean Water Act does not require PG&E to get a permit for these discharges.6
Given these circumstances, PG&E‘s argument centers on EPA‘s decision not to impose a Phase II CWA permit requirement on discharges like its own. That decision, PG&E maintains, bars any application of RCRA, including the RCRA endangerment provision. We cannot agree.
CWA section 402(p)(6) directed EPA to establish a “comprehensive program” for Phase II-covered stormwater discharges.
Notably, the Phase II Regulations indicate that EPA considered RCRA‘s application to stormwater discharges while deciding the types of stormwater given priority for designation. The agency decided to exclude at least some discharges from its Phase II Regulations because RCRA and other statutes would still apply to those discharges.
In EPA‘s final Phase II Regulations, the Agency designated two types of stormwater discharges as subject to permits: discharges from small municipal sewer systems and discharges associated with small construction activity. See Phase II Regulations, 64 Fed. Reg. at 68,722. In the lead up to those regulations, EPA considered whether it should also designate other types of industrial and commercial sources as requiring permits. Because the Phase I Regulations classified “industrial sources” based on standardizеd industry classifications, EPA first considered the industrial
The agency determined that many of these “unregulated” industrial and commercial sources had “a high likelihood of exposure of pollutants.” Id. at 68,780. Nevertheless,
EPA assessed the likelihood that pollutant sources are regulated in a comprehensive fashion under other environmental protection programs, such as programs under the Resource Conservation and Recovery Act (RCRA) or the Occupational Health and Safety Act (OSHA). If EPA concluded that the category of sources was sufficiently addressed under another program, the Agency rated that source category as having “low” potential for adverse water quality impact.
Id. Ultimately, EPA did
not designate any additional industrial or commercial category of sources [in its Phase II Regulation,] either because EPA currently lack[ed] information indicating a consistent рotential for adverse water quality impact or because of EPA‘s belief that the likelihood of adverse impacts on water quality is low, with some possible exceptions on a more local basis.
Id.8
The Phase II Regulations’ preamble further underscores that the Regulations addressed undesignated sources only to the extent that they “encourage[d] control of storm water discharges from [undesignated industrial and commercial sources] through self-initiated, voluntary [best management practices], unless the discharge (or category of discharges) is designated for permitting by the permitting authority.” Id. A policy of encouraging voluntary practices imposes no legal requirement. See Gorman, 584 F.3d at 1171.
In sum, neither CWA section 402(p)(6) nor the Phase II Regulations promulgated under it impose any legal requirement on undesignated sources of stormwater discharges. Instead, the Regulations rest in part on the assumption that RCRA and other statutes would still apply to undesignated sourсes. As there is no requirement, there can be no inconsistent requirement barring RCRA‘s application.
C. Municipal Permits
Our principal question answered, we proceed to the remaining issues on appeal. We consider PG&E‘s alternative anti-duplication contention—that its stormwater discharges are subject to CWA requirements via the municipal storm sewer system permits required of and held by local government agencies—and conclude it fares no better than the broader position we have rejected.9
As a preliminary matter, EcoRights points to evidence that at least some PG&E discharges at its Oakland facility do not flow through municipal storm sewer systems at all. According to EcoRights’
In any event, although the permits and ordinances to which PG&E alludes are judicially noticeable public records, see Fed. R. Evid. 201(b), PG&E has not in its briefs presented any specific factual or legal argument concerning requirements—consistent or inconsistent with RCRA—imposed on it under those permits and ordinances. We “will not do an [appellee‘s] work for it, either by manufacturing its legal arguments, or by combing the record on its behalf for factual support.” W. Radio Servs. Co. v. Qwest Corp., 678 F.3d 970, 979 (9th Cir. 2012) (citations omitted).
PG&E highlights a few requirements that the San Francisco Bay Region Municipal Regional Stormwater Permit imposes on the cities of Oakland and Hayward as permittees. Under the regional permit, PG&E states, the cities must “implement an industrial and commercial site control program” and develop “an Enforcement Response Plan (ERP) to prеvent discharge of pollutants and impact on beneficial uses of receiving waters.” PG&E also points to a Eureka ordinance enacted as part of that city‘s compliance with California‘s general NPDES permit for small municipal storm systems; that ordinance prohibits “illicit connections” and “establishes requirements for reducing pollutants in storm water.”
At this level of generality, such requirements are not inconsistent with the injunctive relief EcoRights seeks under RCRA against PG&E. Nor is it obvious how some of these NPDES requirements for municipalities would be relevant to a private party‘s—here, PG&E‘s—legal responsibilities. As PG&E has not pointed to any specific stormwater discharge requirement with which it must comply imposed by or pursuant to any CWA municipal storm system permits, it was not entitled to summary judgment on the basis of those permits.
V. Tire Tracking Pathway
Finally, we address the district court‘s conclusion that EcoRights “failed to come forward with evidence sufficient to create a triable issue of fact that the waters of San Francisco or Humboldt Bays are endangered by [PCP] dispersed from the corporation and service yards by tracking on vehicle tires,” as there was “no evidence of actual transmission of the pollutants from PG&E‘s facilities to municipal stormwater systems via the ... tire tracking [pathway], much less of resulting Bay pollution at a level sufficient to support a RCRA claim.” We agree with this assessment of the summary judgment record.
In a RCRA endangerment citizen suit like this one, the plaintiff must show: [1] the defendant is “any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, [2] who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste [3] which may present an imminent and substantial endangerment to health or the environment.”
The second endangerment prong requires the plaintiff to show “that a defendant be actively involved in or have some degree of control over the waste disposal process.” Hinds Invs., L.P. v. Angioli, 654 F.3d 846, 851 (9th Cir. 2011). So EcoRights had to present evidence showing that PG&E is involved in or has control over the actual waste disposal activities challenged as imminently dangerous. Only at the third prong, with regard to the likely health or environmental impact of those activities, does a risk-based showing—whether the activities “may present an imminent and substantial endangerment to health or the environment“—suffice.
Viewing the facts in the light most favorable to EcoRights, there is no evidence that PG&E trucks actually picked up contaminants on their tires and carried them offsite. EcoRights’ expert witness on the matter testified only that tire-tracking “could be a concern,” based on his “experience at other facilities where tracking is an issue.” Those other sites, which were undergoing cleanup processes for dioxin contamination, had controls in place to reduce tire-tracking. Such controls included rumble strips—to vibrate off accumulated materials as trucks pass over them—and wheel washing. The EcoRights expert witnessed no rumble strips or wheel washing while onsite at the PG&E facilities. Moreover, although company policy recommends wheel-washing as a best practice, PG&E employees admitted that the practice is rarely implemented.
But EcoRights’ expert did not observe any trucks driving through areas where there may have been contaminants. Nor did he witness any tire track-marks that indicated the spread of contaminated soils or water. Finally, EcoRights’ expert did not sample for contamination the areas where trucks were likely to pass. Moreover, he provided no standard for the level of contamination necessary to require tire-tracking controls.
Given these investigatory gaps and the “could have” language used by its expert, we conclude that EcoRights’ evidence identified tire-tracking only as a potential mechanism by which PG&E might have contributed to the transportation and dispersal of PCP-infused wastes. That showing does not establish that PG&E actually contributed to the handling, transportation, or disposal of solid waste via vehicle tire-tracking. Summary judgment for PG&E was warranted as to that aspect of EcoRights’ RCRA claim.
VI. EcoRights’ Motion for Summary Judgment
The district court did not decide whether the PCP-infused wood or oil wastes at PG&E sites were “solid wastes” subject to RCRA. It also did not determine whether PG&E‘s present or past handling, storage, treatment, transportation, or disposal of those wastes, overall, creates an imminent and substantial endangerment to health or the environment because of its impact on the Bays.10 Because the district court did not reach these merits-related questions, we remand so that they may be considered. Seе Voggenthaler v. Maryland Square LLC, 724 F.3d 1050, 1066 (9th Cir. 2013).
VII. Conclusion
The district court erred in applying RCRA‘s anti-duplication provision, RCRA
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.