Lead Opinion
Opinion by Judge CALLAHAN; Concurrence by Judge HURWITZ.
OPINION
Defendants-Appellees Pacific Gas & Electric Company (“PG & E”) and Pacific Bell Telephone Company (“Pacific Bell”) own and maintain utility poles throughout the San Francisco Bay Area. Many of the poles are treated with a wood preservative that contains pentachlorophenol (“PCP”), a general biocide, and other chemicals. Plaintiff-Appellant Ecological Rights Foundation (“ERF”) filed this action against both companies, alleging that the poles discharge wood preservative into the environment in violation of the federal Clean Water Act (“CWA”), 33 U.S.C. §§ 1251-1387, and the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. §§ 6901-6992k.
The district court, which had jurisdiction pursuant to 28 U.S.C. § 1331, 33 U.S.C. § 1365(a)(1), and 42 U.S.C. § 6972(a)(1)(B), dismissed ERF’s action for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), without leave to amend. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
BACKGROUND
A. Statutory and regulatory background
1. The CWA
The CWA is designed to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). The CWA prohibits the “discharge of any pollutant.” Id. § 1311(a). “Discharge of a pollutant” refers to “any addition of any pollutant to navigable waters from any point source;” “pollutant” refers to, among other things, “solid waste” and “chemical wastes;” and “navigable waters” refers to “the waters of the United States....” Id. §§ 1362(6), (7), (12).
The Environmental Protection Agency (“EPA”), or a State to which EPA has delegated its authority, may issue a National Pollutant Discharge Elimination System (“NPDES”) permit “for the discharge of any pollutant, ... notwithstanding section 1311(a) of this title.” Id. § 1342(a). NPDES permits are required for discharges from any “point source,” but not for discharges from “nonpoint sources.” League of Wilderness Defenders v. Forsgren,
Stormwater presents a unique problem under the CWA because it is a significant source of water pollution but is not “inherently a nonpoint or point source.” Nw. Envtl. Def. Ctr. v. Brown,
The 1987 amendments established a two-phase approach. See generally Envtl. Def. Ctr.,
2. RCRA
“RCRA is a comprehensive environmental statute that governs the treatment, storage, and disposal of solid and hazardous waste.” Meghrig v. KFC W., Inc.,
3. Citizen suits
Chief responsibility for enforcement of the CWA and RCRA lies with EPA, which may delegate that authority to the States. Both statutes provide for “citizen suits” against persons who are alleged to be in violation of the statutes’ requirements. See 33 U.S.C. § 1365; 42 U.S.C. § 6972.
A private citizen may file an action under the CWA against a person “who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation.” 33 U.S.C. § 1365(a)(1). A citizen may file an action under RCRA “against any person ... who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.” 42 U.S.C. § 6972(a)(1)(B).
A citizen plaintiff must give notice to the alleged violator at least 60 days before filing suit under the CWA, and, for the action at issue here, at least 90 days under RCRA. 33 U.S.C. § 1365(b)(1)(A); 42 U.S.C. § 6972(b)(2)(A); see also Hallstrom v. Tillamook Cnty.,
B. Factual and procedural background
On June 4, 2009, ERF sent a letter to PG & E stating that it intended to file a citizen suit under the CWA and RCRA. The letter alleged that PG & E had violat
On August 13, 2009, ERF filed a complaint against PG & E asserting CWA claims. Thirty days later, ERF filed a first amended complaint adding a RCRA claim and attaching the June 2009 notice letter. ERF sent two more notice letters dated October 14, 2009, and January 6, 2010. The October 2009 notice added alleged responsible parties but was otherwise identical to the June 2009 notice. The January 2010 notice added Pacific Bell, among other parties, and discussed poles treated with any chemical preservative, not just PCP.
On June 21, 2010, ERF filed a second amended complaint, the operative complaint in this appeal. The complaint added Pacific Bell as a defendant and alleged that PG & E and Pacific Bell had violated and were violating: (1) the CWA, 33 U.S.C. § 1311(a), by discharging “pollutant-bearing storm water runoff’ from their utility poles into waters of the United States without an NPDES permit; (2) the CWA, id. §§ 1311(a), 1342, by failing to obtain an NPDES permit, regardless of any discharges; and (3) RCRA, 42 U.S.C. § 6972(a)(1)(B), by contributing to “the past and present handling, storage, treatment, transportation and disposal of solid waste,” which may present an “imminent and substantial endangerment to health or the environment.”
PG & E and Pacific Bell filed motions to dismiss the second amended complaint for failure to state a claim. The district court granted the defendants’ motions. Ecological Rights Found, v. Pac. Gas & Elec. Co.,
ERF appeals only the dismissal of its first CWA claim (discharge without an NPDES permit) and RCRA claim; ERF does not appeal the dismissal of its second CWA claim (failure to obtain an NPDES permit regardless of any discharge).
STANDARD OF REVIEW
“We review de novo the district court’s dismissal of a complaint for failure to state a claim. We review for abuse of discretion a district court’s decision to dismiss with prejudice.” Okwu v. McKim,
DISCUSSION
A. Dismissal under Rule 12(b)(6)
1. CWA
a. “Point source” discharges
The CWA defines “point source” as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. ...” 33 U.S.C. § 1362(14). The CWA does not define “nonpoint source,” but we have explained that
it is widely understood to be the type of pollution that arises from many dispersed activities over large areas, and is not traceable to any single discrete source. Because it arises in such a diffuse way, it is very difficult to regulate through individual permits. The most common example of nonpoint source pollution is the residue left on roadways by automobiles. Small amounts of rubber are worn off of the tires of millions of cars and deposited as a thin film on highways; minute particles of copper dust from brake linings are spread across roads and parking lots each time a driver applies the brakes; drips and drabs of oil and gas ubiquitously stain driveways and streets. When it rains, the rubber particles and copper dust and gas and oil wash off of the streets and are carried along by runoff in a polluted soup, winding up in creeks, rivers, bays, and the ocean.
League of Wilderness Defenders,
Stormwater runoff is “a nonpoint or point source ... depending on whether it is allowed to ran off naturally (and is thus a nonpoint source) or is collected, channeled, and discharged through a system of ditches, culverts, channels, and similar conveyances (and is thus a point source discharge).” Brown,
ERF alleges that rain falls on and around the defendants’ utility poles and
ERF’s two counterarguments give it no purchase. First, ERF contends that the district court (and by extension, we) have read into its complaint an allegation it does not contain — that the stormwater runoff reaches regulated waters “through natural means.” However, given the longstanding distinction in our case law between natural and conveyed stormwater under the CWA, the district court’s reading is reasonable absent any allegation that the runoff reaches regulated waters via some other method. See Sierra Club v. Abston Constr. Co.,
To get around the absence of a conveyed stormwater allegation in its complaint, ERF next contends that the defendants’ utility poles are themselves “conveyances.” In other words, ERF contends that “point sources” are not just “ditches, culverts, and similar channels,” but any “tangible, identifiable thing.” Because the CWA is ambiguous on this issue, we would normally defer to EPA. See Chevron, U.S.A., Inc. v. NRDC, Inc.,
The case law does not support ERF’s attempt to characterize the poles as point sources. The cases ERF cites involved things that (l) the CWA specifically identifies as point sources,
b. Additional allegations
ERF argues that its second amended complaint is not limited to the allegation that contaminated stormwater runoff flows from the utility poles directly into waters of the United States. According to ERF, its complaint also alleges that: (1) the defendants’ utility poles discharge directly into waters of the United States (through preservative dripping into marshes in which the poles are located), and (2) the stormwater runoff from the poles is collected in unidentified ditches, channels, and other conveyances which then discharge into waters of the United States.
ERF never made this argument in the extensive motion proceedings in the district court, and therefore waived it. See Ruiz v. Affinity Logistics Corp.,
ERF’s failure to urge these theories below is facially consistent with the second amended complaint. The complaint’s only allegation regarding how the utility poles
Perhaps recognizing the absence of a direct discharge or collected runoff theory in its complaint, ERF urges us to read the complaint together with its CWA notice letters. Under the “incorporation by reference” doctrine, “[e]ven if a document is not attached to a complaint, it may be incorporated by reference into a complaint if the plaintiff refers extensively to the document or the document forms the basis of the plaintiffs claim.” United States v. Ritchie,
In short, ERF’s second amended complaint does not allege that stormwater runoff from the poles is collected in channels and then conveyed to waters of the United States, or that the utility poles discharge directly into waters of the United States. ERF “may not try to amend [its] complaint through [its] arguments on appeal.” Riggs v. Prober & Raphael,
c. “Discharge associated with industrial activity”
Dismissal of ERF’s CWA claim was proper for another, independent reason. As discussed above, EPA requires NPDES permits for only certain categories of stormwater discharges. The only category ERF argues applies in this case is “discharge^] associated with industrial activity.” 33 U.S.C. § 1342(p)(2)(B). We conclude that stormwater runoff from the defendants’ utility poles is not “associated
First, stormwater runoff from the defendants’ utility poles does not fit within EPA’s definition of “discharge associated with industrial activity,” which is “the discharge from any conveyance that is used for collecting and conveying storm water and that is directly related to manufacturing, processing or raw materials storage at an industrial plant....” 40 C.F.R. § 122.26(b)(14). A utility pole is not a “conveyance ... used for collecting and conveying storm water,” nor is it “directly related to manufacturing, processing or raw materials storage at an industrial plant.” Nor is a utility pole a plant yard, access road, prior industrial area, material handling, storage, or treatment site, or any of the other types of industrial facilities specifically identified in 40 C.F.R. § 122.26(b)(14)(i)-(xi).
The Supreme Court’s recent decision in Decker, supra, supports our analysis. There, the Court held that discharges of channeled stormwater runoff from logging roads were not “associated with industrial activity.” Decker,
The second reason why stormwater runoff from the defendants’ utility poles is not “associated with industrial activity” has to do with Standard Industrial Classification (“SIC”) codes, the classification system § 122.26(b)(14) uses to define the industrial activities it covers. See 40 C.F.R. § 122.26(b)(14)(ii)-(iii), (vi), (viii), (xi); see also Decker,
Third, EPA included “steam electric power generating facilities” in the definition of “industrial activity,” but rejected including “major electrical powerline corridors” in the regulation. See 40 C.F.R.
Fourth, a conclusion that stormwater runoff from the defendants’ utility poles is a “discharge associated with industrial activity” could require EPA or the States to regulate stormwater runoff from many other things. If the defendants’ utility poles are conveyances that are both “used for collecting and conveying storm water” and “directly related to manufacturing, processing or raw materials storage areas at an industrial plant,” then arguably so are playground equipment, bike racks, mailboxes, traffic lights, billboards, and street signs — indeed, anything that might contaminate stormwater. Absent guidance from EPA that says otherwise, regulation of stormwater runoff from such commonplace things would seem to run counter to EPA’s measured regulation of stormwater discharges under 33 U.S.C. § 1342(p) and 40 C.F.R. § 122.26(b)(14), and to our practice of reading statutes to “avoid ... absurd results.” United States v. Tatoyan,
ERF nonetheless contends that we should read 40 C.F.R. § 122.26(b)(14) “expansively” to “include activities analogous to those listed in the regulation.” For example, ERF analogizes PG & E’s power grid (including utility poles) to steam electric power generating facilities, and its electricity transmission to natural gas transmission. See 40 C.F.R. § 122.26(b)(14)(iii), (vii) (identifying steam power plants and certain oil and gas transmission facilities as “associated with industrial activity”). However, power plants are plainly “industrial plants,” id. § 122.26(b)(14), while power grids are not, especially given EPA’s decision to exempt “major electrical powerline corridors” from stormwater regulation, id. § 122.26(b)(14)(vii). If EPA exempts high voltage transmission lines and associated towers from NPDES permits, it makes even less sense to require them for neighborhood utility poles. As for likening facilities that transmit electricity to those that convey natural gas, § 122.26(b)(14) suggests that it is the substance being transported — petroleum products — that gives rise to the regulation. See id. § 122.26(b)(14)(iii) (covering only oil and gas “transmission facilities that discharge storm water contaminated by contact with or that has come into contact with, any overburden, raw material, intermediate products, finished products, byproducts or waste products located on the site of such operations”). The same contamination concerns do not apply to electricity transmission.
Perhaps recognizing how much it asks us to stretch EPA’s regulation, ERF alternatively contends that we should “find the regulation invalid as applied to” the defendants’ utility poles. Even assuming ERF can bring such a claim in a citizen suit filed under 33 U.S.C. § 1365(a)(1), see Decker,
Finally, ERF contends that the CWA requires EPA to regulate stormwater runoff from the defendants’ utility poles even if it is not a “discharge associated with industrial activity.” In other words, EPA must require NPDES permits for all stormwater discharges. In support, ERF cites NRDC v. Costle,
It is impossible, however, to square ERF’s view with the language of the statute, which Congress amended ten years after Costle. Section 301(a) bars the discharge of pollutants “[ejxcept as in compliance with,” among other sections, § 402. Section § 402(p)(2), in turn, identifies specific discharges for regulation in Phase I and then leaves to EPA the task of promulgating Phase II regulations “which designate stormwater discharges, other than those discharges described in paragraph (2), to be regulated to protect water quality.” 33 U.S.C. § 1342(p)(2), (6). We have repeatedly explained that this language gives EPA the discretion to decide which additional stormwater discharges to regulate. See Northwest Environmental Defense Center v. Brown,
2. RCRA
A plaintiff must establish three things in an “imminent and substantial endangerment” citizen suit under RCRA: (1) the defendant has been or is a generator or transporter of solid or hazardous waste, or is or has been an operator of a solid or hazardous waste treatment, storage or disposal facility; (2) the defendant has “contributed” or “is contributing to” the handling, storage, treatment, transportation, or disposal of solid or hazardous waste; and, (3) the solid or hazardous waste in question may present an imminent and substantial endangerment to health or the environment. 42 U.S.C. § 6972(a)(1)(B); Prisco v. A & D Carting Corp.,
ERF alleges that an “imminent and substantial endangerment” is caused by PCP-based wood preservative that “leak[s], spill[s], and drip[s]” from the defendants’ utility poles, and from “[d]ust impregnated with” the preservative that “is blown into the air during dry seasons.” Because ERF does not allege that the preservative is “hazardous waste,” the “crux of the case turns on the issue of whether [that preservative] is ‘solid waste’ within the meaning of RCRA.” Safe Air for Everyone v. Meyer,
We begin with RCRA’s definition of “solid waste,” which is “garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material ... resulting from industrial, commercial, mining and agricultural operations, and from community activities....” 42 U.S.C. § 6903(27); see also
Because the statute is ambiguous, we look to RCRA’s legislative history. See James v. City of Costa Mesa,
themselves once they have served their intended purposes and are no longer wanted by the consumer. For these reasons the term discarded materials is used to identify collectively those substances often referred to as industrial, municipal or post-consumer waste; refuse, trash, garbage and sludge.
Id. at 2. The key to whether a manufactured product is a “solid waste,” then, is whether that product “ha[s] served [its] intended purpose[ ] and [is] no longer wanted by the consumer.” Id.; see also No Spray Coal., Inc. v. City of New York,
In this case, ERF is concerned not with wood preservative that is in or on the defendants’ utility poles — which clearly is being put to its intended use as a general biocide — but with wood preservative that leaks, spills, or otherwise escapes from the poles. But such escaping preservative is neither a manufacturing waste by-product nor a material that the consumer — in this case, PG & E or Pacific Bell — no longer wants and has disposed of or thrown away. Thus, we conclude that PCP-based wood preservative that escapes from treated utility poles through normal wear and tear, while those poles are in use, is not automatically a RCRA “solid waste.”
Our conclusion finds support in the case law, EPA’s treatment of PCP and other materials under RCRA, and common sense. First, in No Spray Coalition, supra, the Second Circuit held that “pesticides are not being ‘discarded’ when sprayed into the air with the design of
ERF, of course, argues that wood preservative that escapes from utility poles is no longer serving its intended use. But the same can be said of airborne pesticide that drifts beyond its intended target after killing insects. Whatever other liability the pesticide sprayer may have in such a circumstance, we would not ordinarily consider the pesticide as having been “discarded.” Indeed, like pesticide applied to a field, preservative that falls to the base of a utility pole still serves its intended purpose by inhibiting the growth of vegetation, fungi, and other organisms. Thus, like other nonhazardous materials, wood preservative that is washed or blown away from utility poles by natural means, as an expected consequence of the preservative’s intended use, has not been “discarded.”
Second, EPA treats spent munitions under RCRA in the same way — as not having been “discarded” through their normal use:
EPA disagrees ... that munitions are a “solid waste” when they hit the ground because they have no further function, unlike pesticides, which continue to have a function on the ground. EPA’s interpretation focuses on whether a product was used as it was intended to be used, not on whether the purpose of the product is to perform some function once on the ground. For example, the use of explosives (e.g., dynamite) for road clearing, construction, or mining does not trigger RCRA regulation, even though any residuals on the ground serve no further function.
Therefore, the Agency is maintaining its position that munitions that are fired are products used for their intended purpose, even when they hit the ground since hitting the ground is a normal expectation for their use.
Military Munitions Rule: Hazardous Waste Identification and Management; Explosives Emergencies; Manifest Exemption for Transport of Hazardous Waste on Righ1^of-Ways on Contiguous Properties, 62 Fed.Reg. 6,622, 6,630 (Feb. 12, 1997) (codified at 40 C.F.R. § 266.202).
Third, in 2008, EPA approved the use of PCP under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. §§ 136-136y, as a wood preservative for utility poles, railroad ties, and pilings. As part of the approval process, EPA studied the available literature regarding PCP, assessed its potential haz
Fourth, under RCRA, EPA does regulate as “hazardous” (and thus “solid”) waste:
• “Wastes” from PCP manufacturing processes;
• “Discarded unused formulations” containing PCP;
• “Wastewaters ..., process residuals, preservative drippage, and spent formulations from wood preserving processes generated at [wood treatment] plants that currently use or have previously used” PCP; and
• “Bottom sediment sludge from the treatment of wastewaters from wood preserving processes that use creosote and/or [PCP].”
40 C.F.R. § 261.31(a)(Table — F021, F027, F032), 261.32 (Table — K001). However, EPA does not regulate “those [PCP] formulations which are used,” including “[PCP] which is impregnated in treated wood (e.g., posts, poles, and railroad ties)” and “dirt contaminated with PCP, ... unless the contamination were the result of a spill of unused PCP.” U.S. EPA, “Regúla-tory Status of Various Types of Pentachlo-rophenol Wastes,” RCRA Online No. 11256 (June 19, 1987), available at http:// yosemite.epa.gov/osw/rcra.nsf/0c994248c 239947e85256d090071175f/b30c860b7bf78f3 f8525670f006bd7ef!OpenDocument (last visited March 27, 2013).
We recognize that EPA’s decision not to regulate PCP-based preservative that drips from treated wooden utility poles as “hazardous waste” does not by itself mean the substance is not a “solid waste” under RCRA, since EPA’s regulatory definition of “solid waste” is narrower than the statutory definition. See supra at 516 n. 9. However, in the absence of a more definitive statement from EPA, its treatment of PCP and wood preservatives generally supports our conclusion that PCP-based wood preservative that escapes from utility poles through normal wear and tear, while those poles are in use, is not a RCRA “solid waste.”
Finally, common sense compels what RCRA, the case law, and EPA regulations and guidance imply. As with ERF’s CWA claim, accepting ERF’s characterization of preservative that seeps from wooden utility poles as a RCRA “solid waste” would lead to untenable results. As of 2008, there were 36 million utility-owned wood poles in service across the United States that have been treated with PCP. It defies reason to suggest that each of those poles, while in use, is producing “solid waste” under RCRA, and thus must be replaced. Indeed, if ERF is correct, everything from wood preservative that leaches from railroad ties to lead paint that naturally chips away from houses
We include the word “automatically” to reflect what we are not deciding today. Because ERF does not allege that dangerous accumulations of PCP have resulted from the natural discharge of wood preservative from the defendants’ utility poles, we do not decide whether or under what circumstances PCP, wood preservative, or another material becomes a RCRA “solid waste” when it accumulates in the environment as a natural, expected consequence of the material’s intended use. See U.S. EPA, Best Management Practices for Lead at Outdoor Shooting Ranges, EPA-902-B-01-001, at 1-8 (June 2005) available at http://www.epa.gov/lead/pubs/epaJ3mp. pdf (last visited March 27, 2013) (“[S]pent lead shot (or bullets), left in the environment, is subject to the broader definition of solid waste written by Congress.”); Conn. Coastal Fishermen’s Ass’n,
B. Dismissal under Rule 12(b)(1)
PG & E argues that dismissal of ERF’s complaint was alternatively appropriate because ERF’s allegations are insufficient on their face to invoke federal subject-matter jurisdiction. See Fed.R.Civ.P. 12(b)(1); Wolfe v. Strankman,
Pursuant to EPA regulations, the CWA requires that a notice
shall include sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to have been violated, the activity alleged to constitute a violation, the person or persons responsible for the alleged violation, the location of the alleged violation, the date or dates of such violation, and the full name, address, and telephone number of the person giving notice.
40 C.F.R. § 135.3(a). RCRA imposes almost identical requirements. See id.
pertains to each and every Pole located in San Francisco, Alameda, Contra Cos-ta, and Marin counties, to the extent the Pole has been treated with the above-referenced oil-pentachlorophenol mixture. PG & E maintains an extensive database with information about the treatment method used on every Pole it owns.... Given PG & E’s ownership, control and usage of the Poles, PG & E knows the location of each of these Poles. These Poles include, but are not limited to, the Poles identified in the attached Exhibits A and B. The itemization of Poles in Exhibits A and B are provided by way of example to illustrate ERF’s concern with the Poles; there are thousands of additional Poles that have been treated with the above-referenced oil-pentachlorophenol mixture and to which this Notice pertains.
In arguing that ERF’s notices were insufficient, PG & E reads the relevant regulations — in particular, the requirement that a notice identify “the location of the alleged violation” — too literally. We have explained that,
as long as a notice letter is reasonably specific as to the nature and time of the alleged violations, the plaintiff has fulfilled the notice requirement. The letter does not need to describe every detail of every violation; it need only provide enough information that the defendant can identify and correct the problem.
San Francisco Baykeeper, Inc. v. Tosco Corp.,
PG & E’s second argument — that ERF could not rely on its third notice letter and second amended complaint to cure its deficient initial notice letter and complaint— also is unpersuasive. One, PG & E did not raise this argument in its Rule 12(b)(1) motion. Two, as discussed above, ERF’s notice letters were not deficient. Three, the only differences between ERF’s first and third notice letters were that the third letter added responsible parties and discussed poles treated with any chemical preservative, not just POP. Yet ERF’s second amended complaint is concerned only with PCP-treated poles. Finally, ERF sent its third notice letter on January 6, 2010, but did not file its second amended complaint until June 21, 2010. PG & E cannot complain that it did not have time to decide whether and how to respond to ERF’s allegations. See Ctr. for Biological Diversity,
C. Dismissal without leave to amend
ERF argues that it should be allowed to amend its complaint to allege that (1) the
We consider five factors in assessing whether a district court abuses its discretion in dismissing a complaint without leave to amend: “bad faith, undue delay, prejudice to the opposing party, futility of amendment, and whether the plaintiff has previously amended the complaint.” United States v. Corinthian Colleges,
Here, there is no evidence of bad faith or risk of prejudice, but there have been undue delay and previous amendments. As discussed above, ERF did not raise its additional allegations until this appeal, despite twice amending its complaint. However, ERF’s biggest obstacle is futility. Regarding the CWA, first, because ERF’s notice letters do not allege that the defendants’ utility poles directly discharge wood preservative into waters of the United States, ERF cannot assert that claim in this lawsuit. Second, even if ERF had alleged that stormwater discharges from the utility poles are collected and then conveyed to waters of the United States, such discharges are not “associated with industrial activity.” Regarding RCRA, a claim that preservative-laden pieces or shavings from utility poles are dislodged when people brush up against or drill into utility poles still involves a release that is a natural, expected consequence of the preservative’s intended use; such pieces or shavings therefore are not discarded “solid waste” under RCRA.
ERF already had three chances to assert its claims, and no claim that ERF has asserted or could assert on remand is a claim upon which relief may be granted under the CWA or RCRA. Cf. Jewel v. Nat’l Sec. Agency,
AFFIRMED.
Notes
. No citizen suit may proceed if EPA or a State chooses to bring its own action against the alleged violator. 33 U.S.C. § 1365(b)(1)(B); 42 U.S.C. § 6972(b)(2)(B)-(C). Neither EPA nor the State of California has so intervened in this action.
. PG & E also moved to dismiss ERF's complaint for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The district court denied this motion. Ecological Rights Found.,
. See, e.g., United States v. W. Indies Transp., Inc.,
. See, e.g., Peconic Baykeeper, Inc. v. Suffolk Cnty.,
. See, e.g., Miccosukee Tribe of Indians of Fla. v. S. Fla. Water Mgmt. Dist.,
. It is true that in Decker the Court applied deference under Auer v. Robbins,
. The SIC Codes for communication and electrical services are 4813 and 4911, respectively. See U.S. Dep't of Labor, Occupational Safety & Health Admin., SIC Division Structure, available at http://www.osha.gov/pls/ imis/sic_manual.html (last visited March 27, 2013). These SIC Codes do not appear to be included or implicated in 40 C.F.R. § 122.26(b)(14). In contrast, the SIC codes for facilities that preserve wood (2491) and for construction of power lines (1623) involving greater than five acres are covered by § 122.26(b)(14)(ii) and (x).
. We do not hold that POP or wood preservative that is released into the environment through normal wear and tear can never be a "solid waste” under RCRA. See infra at 31-32. Our holding in this case turns on the particular allegations in ERF's complaint.
. EPA’s regulatory definition of "solid waste,” 40 C.F.R. § 261.2, applies only to "hazardous waste,” a sub-category of "solid waste,” and thus defines "solid waste” more narrowly than RCRA. See 42 U.S.C. § 6903(27); 40 C.F.R. §§ 261.1(b)(1), 261.2(a)(2)(i)(A), (2)(b), 262.3; Military Toxics Project v. EPA,
. EPA is considering regulating lead-based paint debris under a different statute, but RCRA remains the current management tool. See 40 C.F.R. §§ 257.2, 258.2 (defining “lead-based paint waste”); U.S. EPA, Regulatory Status of Waste Generated by Contractors and Residents from Lead-Based Paint Activities Conducted in Households, available at http:// www.epa.gov/lead/fslbp.html (Aug.2000) (last visited March 27, 2013). Notably, EPA regulates lead-based paint waste generated and disposed of during residential construction
Concurrence Opinion
concurring in part and concurring in the result:
I concur in the majority opinion except insofar as it holds that utility poles cannot be point sources for purposes of the Clean Water Act under circumstances not presented by this case. See supra pp. 508-10. Resolution of this difficult issue is entirely unnecessary, given the opinion’s conclusion — which I join — that the defendants’ utility poles are not “associated with industrial activity.” See supra pp. 511-14.