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

Decision Date03 April 2013
Docket NumberNo. 11–16042.,11–16042.
Citation713 F.3d 502
PartiesECOLOGICAL RIGHTS FOUNDATION, Plaintiff–Appellant, v. PACIFIC GAS AND ELECTRIC COMPANY; Pacific Bell Telephone Company, Defendants–Appellees.
CourtU.S. Court of Appeals — Ninth Circuit


Christopher Sproul (argued), Jodene Isaacs, and Brian Orion, Environmental Advocates, San Francisco, CA; William Verick, Klamath Environmental Law Center, Eureka, CA, for PlaintiffsAppellants.

Russell B. Selman, Bradley S. Rochlen (argued), and J. Michael Showalter, Schiff Hardin LLP, Chicago, IL, for DefendantAppellee Pacific Gas & Electric Company.

Douglas W. Sullivan (argued) and Joel D. Smith, Crowell & Morring LLP, San Francisco, CA, for DefendantAppellee Pacific Bell Telephone Company.

Daniel J. Herling, Keller & Heckman LLP, San Francisco, CA, for amicus KMG–Bernuth, Inc.

Karma B. Brown, Hunton & Williams LLP, Washington, D.C.; Brooks M. Smith, Hunton & Williams LLP, Richmond, VA, for amici American Coke & Coal Chemicals Institute, et al.

Appeal from the United States District Court for the Northern District of California, Saundra B. Armstrong, District Judge, Presiding. D.C. No. 4:09–cv–03704–SBA.


Opinion by Judge CALLAHAN; Concurrence by Judge HURWITZ.


CALLAHAN, Circuit Judge:

DefendantsAppellees 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. PlaintiffAppellant 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. ERF fails to state a claim under the CWA because discharges of stormwater from the utility poles are neither a “point source discharge” nor “associated with industrial activity.” ERF also fails to state a claim under RCRA because wood preservative that escapes from the utility poles is not a “solid waste.” Finally, the district court did not abuse its discretion in denying ERF leave to amend; ERF had, and took advantage of, two opportunities to amend its complaint, and none of ERF's proposed amendments would cure the defects in its allegations.

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, 309 F.3d 1181, 1183 (9th Cir.2002). Permits are either individual (authorizing “a specific entity to discharge a pollutant in a specific place” through an informal adjudication) or general (authorizing entities in a geographic area to discharge following a rulemaking). NRDC v. U.S. EPA, 279 F.3d 1180, 1183 (9th Cir.2002).

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, 640 F.3d 1063, 1070–71 (9th Cir.2011), rev'd on other grounds, Decker v. Nw. Envtl. Def. Ctr., ––– U.S. ––––, 133 S.Ct. 1326, 185 L.Ed.2d 447, 2013 WL 1131708 (Mar. 20, 2013); Envtl. Def. Ctr., Inc. v. U.S. EPA, 344 F.3d 832, 840–41 (9th Cir.2003). EPA originally attempted to exempt stormwater discharges from NPDES permitting, but the D.C. Circuit found such exemption unlawful. NRDC v. Costle, 568 F.2d 1369, 1379 (D.C.Cir.1977). EPA then passed regulations and, in 1987, Congress amended the CWA to regulate stormwater. Pub.L. No. 100–4, 101 Stat. 7 (1987) (codified at 33 U.S.C. § 1342(p)); see also Decker, 133 S.Ct. at 1331, 2013 WL 1131708, at *4.

The 1987 amendments established a two-phase approach. See generally Envtl. Def. Ctr., 344 F.3d at 841–43. In Phase I, EPA required NPDES permits for the most significant stormwater discharges: those from a prior permitted source or large municipality; those that “contribute[ ] to a violation of a water quality standard or [are] a significant contributor of pollutants to waters of the United States;” and, most significantly for this case, those “associated with industrial activity.” 33 U.S.C. § 1342(p)(2); see also [NPDES] Application Regulations for Storm Water Discharges, 55 Fed.Reg. 47,990 (Nov. 16, 1990) (codified at 40 C.F.R. pts. 122–124). In Phase II, EPA required NPDES permits for stormwater discharges from smaller municipal storm systems and construction sites that disturb between one and five acres. 40 C.F.R. § 122.26(a)(9)(i)(A)-(B); see also [NPDES]—Regulations for Revision of the Water Pollution Control Program Addressing Storm Water Discharges, 64 Fed.Reg. 68,722 (Dec. 8, 1999) (codified at 40 C.F.R. pts. 9, 122, 123, and 124). EPA retained authority to regulate other stormwater discharges on a local or regional, as-needed basis. 40 C.F.R. § 122.26(a)(9)(i)(C)-(D). We upheld most of EPA's Phase II regulation, including EPA's decision to retain authority to designate other stormwater discharges on a case-by-case basis, in Environmental Defense Center, 344 F.3d at 856–60, 873–78.


“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). RCRA's “primary purpose” is “to reduce the generation of hazardous waste and to ensure the proper treatment, storage, and disposal of that waste which is nonetheless generated, ‘so as to minimize the present and future threat to human health and the environment.’ Id. (quoting 42 U.S.C. § 6902(b)).

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. See33 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., 493 U.S. 20, 31, 110 S.Ct. 304, 107 L.Ed.2d 237 (1989) (holding that RCRA's notice and delay requirements, if not jurisdictional, “are mandatory conditions precedent to commencing suit under the RCRA citizen suit provision”); Covington v. Jefferson Cnty., 358 F.3d 626, 636 (9th Cir.2004) (holding that RCRA requirements are jurisdictional); Ctr. for Biological Diversity v. Marina Point Dev. Co., 566 F.3d 794, 800 (9th Cir.2009) ([T]he giving of a 60–day notice [under the CWA] is ... a jurisdictional necessity.”).1

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 violatedthese statutes by releasing into the environment wood preservative from PG & E's utility poles in Alameda, Contra Costa, Marin, and San Francisco Counties. The letter contended that wood preservative is oil-based and contains “toxic” chemicals, including PCP and various forms of dioxin. The letter included a non-exhaustive list of utility poles in dispute and the dates of the alleged violations.

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...

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