Ecological Rights Found. v. Pacific Gas & Elec. Co.

• Decision Date: 31 March 2011
• Docket Number: Case No. C 09–03704 SBA.
• Citation: 803 F.Supp.2d 1056
• Parties: ECOLOGICAL RIGHTS FOUNDATION, Plaintiff, v. PACIFIC GAS AND ELECTRIC COMPANY and Pacific Bell Telephone Company, Defendants.
• Court: U.S. District Court — Northern District of California

803 F.Supp.2d 1056

ECOLOGICAL RIGHTS FOUNDATION, Plaintiff,
v.
PACIFIC GAS AND ELECTRIC COMPANY and Pacific Bell Telephone Company, Defendants.

Case No. C 09–03704 SBA.

United States District Court, N.D. California,Oakland Division.

March 31, 2011.

[803 F.Supp.2d 1057]

Christopher Alan Sproul, Jodene Louise Isaacs, Environmental Advocates, Brian Orion, San Francisco, CA, Fredric Evenson, Law Offices of Fredric Evenson, William Leonard Verick, Eureka, CA, for Plaintiff.

Bradley S. Rochlen, J. Michael Showalter, Rocky N. Unruh, Russell Bertram Selman, Schiff Hardin LLP, Chicago, IL, Douglas Warren Sullivan, Joel Dashiell Smith, Crowell & Moring LLP, San Francisco, CA, for Defendants.

ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS SAUNDRA BROWN ARMSTRONG, District Judge.

Plaintiff Ecological Rights Foundation (“Plaintiff”) brings the instant action against Defendants Pacific Gas and Electric (“PG & E”) and Pacific Bell Telephone (“Pacific Bell”) alleging that their wooden utility and telephone poles, respectively,

[803 F.Supp.2d 1058]

are discharging a toxic chemical, pentachlorophenol, into the environment in violation of the Clean Water Act (“CWA” or “Act”), 33 U.S.C. § 1251 et seq., and the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6901 et seq. The parties are presently before the Court on PG & E and Pacific Bell's separate motions to dismiss the Second Amended Complaint (“SAC”), pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Having read and considered the papers filed in connection with this matter and being fully informed, the Court hereby GRANTS Defendants' motions for the reasons set forth below. The Court, in its discretion, finds this matter suitable for resolution without oral argument. See Fed.R.Civ.P. 78(b), Civ. L.R. 7–1(b).

I. BACKGROUND

PG & E is an electrical utility and Pacific Bell is a telephone service provider, which operate in Alameda, Contra Costa, Marin and San Francisco Counties. SAC ¶ 12. Both use wooden poles (“Pole” or “Poles”) which suspend power and/or communications wires as part of their operations in the aforementioned areas. Id. The Poles are pressure-treated with an oil-pentachlorophenol preservative mixture. Id.; see also Showalter Decl. Ex. A at 69646, Dkt. 52–2. According to Plaintiff, over time, rain causes this mixture to leak “onto whatever surface the Pole contacts.” Id. ¶ 13. In addition, the chemical mixture “oozes” to the surface and “is washed off the Pole by rainwater,” thereby contaminating the San Francisco Bay, its tributaries and adjacent wetlands. Id.

On June 4, 2009, Plaintiff, a non-profit public benefit corporation that focuses on ameliorating toxic pollution, sent PG & E a letter entitled Notice of Violations of Federal Law and Notice of Intent to Begin Citizen Enforcement Action. Showalter Decl. Ex. B. The letter advised PG & E of its alleged violations of the CWA and RCRA caused by the use of the oil-pentachlorophenol mixture on Poles “located in San Francisco, Alameda, Contra Costa, and Marin Counties....” Id. at 6. The letter included a non-exhaustive list of Poles in dispute and dates of the alleged violations. Id. (Exs. A–C to letter).

On August 13, 2009, Plaintiff commenced the instant action against PG & E alleging two claims for relief based on violations of the CWA. Dkt. 1. Plaintiff filed a First Amended Complaint (“FAC”) against PG & E on September 13, 2009, which added a RCRA claim. Dkt. 7. Before PG & E's response to the FAC was due, Plaintiff served a second notice letter, dated October 14, 2009, on PG & E and various others, identical in substance to the June 4 letter. Showalter Decl. Ex. C at 2 & n. 1. PG & E and the other entities were alleged to be members of the Northern California Joint Pole Agreement (“JPA”). Id. By letter, dated January 5, 2010, Plaintiff sent a third notice to over ninety parties, including PG & E and Pacific Bell. Id. Ex. C.

On February 4, 2010, PG & E filed a Motion to Dismiss First Amended Complaint for lack of subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1). Dkt. 26. Among other things, PG & E argued that Plaintiff's June 2009 notice was deficient because it did not specify the location of each Pole at issue. In its order denying PG & E's motion to dismiss, the Court found that PG & E had failed to cite any authority requiring that particular level of specificity. See Ecological Rights Found. v. Pac. Gas & Elec., C 09–3704 SBA, 2010 WL 1881595, at *3 (N.D.Cal. May 10, 2010). To the contrary, the Court found that “Plaintiff has provided more than sufficient information for PG & E to ascertain which poles are involved in this action.” Id.

[803 F.Supp.2d 1059]

On June 21, 2010, Plaintiff filed a SAC, making substantially the same allegations as the original complaint, but now joining Pacific Bell as a defendant along with PG & E. Dkt. 45. The SAC alleges three claims for relief: (1) violation of the CWA, 33 U.S.C. § 1311(a); (2) violation of the CWA, 33 U.S.C. §§ 1311(a), 1342; and (3) violation of RCRA, 42 U.S.C. § 6972(a)(1)(B).

Both Pacific Bell and PG & E have now filed separate, albeit largely identical motions to dismiss. Dkt. 49, 52. As a threshold matter, PG & E again contends that the Court lacks subject matter jurisdiction on the ground that Plaintiff's notice letters are deficient. In addition, both Defendants challenge the legal sufficiency of each of Plaintiff's three claims for relief. In particular, they contend Plaintiff's claims under the CWA fail on the grounds that there is no discharge from a “point source,” and because the alleged discharges are not associated with “industrial activity.” Finally, Defendants argue that Plaintiff's third claim under RCRA fails on the ground that Plaintiff has not alleged the disposal of a “solid waste” as required by the statute. The Court addresses each of these issues in turn.

II. LEGAL STANDARDA. Rule 12(b)(1)

A complaint may be dismissed under Rule 12(b)(1) for lack of subject matter jurisdiction. “A jurisdictional challenge ... may be made either on the face of the pleadings or by presenting extrinsic evidence.” Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir.2003). In a “facial” challenge, the court assumes the truth of plaintiff's factual allegations and draws all reasonable inferences in its favor. Doe v. Holy See, 557 F.3d 1066, 1073 (9th Cir.2009). In the case of a “speaking” motion, the court is not restricted to the face of the pleadings and “may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560 (9th Cir.1988). In that case, “[i]t then becomes necessary for the party opposing the motion to present affidavits or any other evidence necessary to satisfy its burden of establishing that the court, in fact, possesses subject matter jurisdiction.” Colwell v. Dept. of Health and Human Servs., 558 F.3d 1112, 1121 (9th Cir.2009) (internal quotation marks and citation omitted). However, a facial attack need not be converted to a speaking motion where “the additional facts considered by the court are contained in materials of which the court may take judicial notice.” Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir.1994) (citation omitted). “Once challenged, the party asserting subject matter jurisdiction has the burden of proving its existence.” Rattlesnake Coalition v. EPA, 509 F.3d 1095, 1102 n. 1 (9th Cir.2007).

B. Rule 12(b)(6)

A complaint may be dismissed under Rule 12(b)(6) for failure to state a claim if the plaintiff fails to state a cognizable legal theory, or has not alleged sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1988). A complaint must allege “enough facts to state a claim to relief that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and “give the defendant fair notice of what ... the claim is and the grounds upon which it rests,” Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (internal quotation marks omitted). The Court “accept[s] as true all well-pleaded allegations of material fact, and construe[s] them in the light most favorable to the non-moving party.”

[803 F.Supp.2d 1060]

Daniels–Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir.2010). “If a complaint is dismissed for failure to state a claim, leave to amend should be granted unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv–Well Furniture Co., Inc., 806 F.2d 1393, 1401 (9th Cir.1986).

III. DISCUSSIONA. Pre–Lawsuit Notices

The CWA and RCRA allow “citizen suits” against alleged polluters, provided that the plaintiff has first provided specific notice of the violation to the responsible party and the relevant agencies. The CWA requires sixty days notice, 33 U.S.C. § 1365(b), while RCRA requires ninety days notice, 42 U.S.C. § 6972(b). The requisite contents of the notice are set forth in regulations promulgated by the Environmental Protection Agency (“EPA”). The CWA regulations provide that:

(a) Violation of standard, limitation or order. Notice regarding an alleged violation of an effluent standard or limitation or of an order with respect thereto, 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's notice provision is worded almost identically. 40 C.F.R. § 254.3(a). The purposes of the notice...