Foundation v. Gas

• Decision Date: 02 November 2017
• Docket Number: No. 15-15424.,15-15424.
• Citation: 874 F.3d 1083
• Parties: ECOLOGICAL RIGHTS FOUNDATION, Plaintiff-Appellant, v. PACIFIC GAS & ELECTRIC COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

874 F.3d 1083

ECOLOGICAL RIGHTS FOUNDATION, Plaintiff-Appellant,

v.PACIFIC GAS & ELECTRIC COMPANY, Defendant-Appellee.

No. 15-15424.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 17, 2017—San Francisco, California

Filed November 2, 2017

Jason R. Flanders (argued), Aqua Terra Aeris Law Group, Oakland, California; Christopher Sproul, Environmental Advocates, San Francisco, California; for Plaintiff-Appellant.

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"), 33 U.S.C. §§ 1251 et seq. , allows but does not require the federal Environmental Protection Agency ("EPA") to require permits before such discharges are allowed; EPA has decided not to require permits.

Our principal question is whether the citizen suit provision of a different statute, the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 6901 et seq. , may be applied to limit such discharges, or whether RCRA's "anti-duplication" provision, 42 U.S.C. § 6905(a), precludes RCRA's application because of EPA's unexercised authority to regulate the discharges. The district court determined that RCRA's anti-duplication provision does preclude that statute's application to the stormwater discharges here at issue. We do not agree.

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." 33 U.S.C. § 1251(a) ; see Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816. The CWA generally prohibits the unregulated "discharge of any pollutant" from any "point sources" into the navigable waters of the United States, although such discharges are allowed if made in compliance with a CWA permit program. 33 U.S.C. § 1311(a), (e).

The principal permitting program, the National Pollution Discharge Elimination System ("NPDES"), is defined in CWA section 402, 33 U.S.C. § 1342. EPA or EPA-authorized states, including California, issue and: enforce permits under the program. See 33 U.S.C. § 1342(b) ; Nat. Res. Def. Council, Inc. v. Cty. of Los Angeles , 725 F.3d 1194, 1198 (9th Cir. 2013). California has authorized regional water boards to act as NPDES permitting authorities. Id. at 1198–99.

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 33 U.S.C. § 1342(p) ).

Specifically, the 1987 Act established a moratorium on NPDES permit requirements for most types of stormwater discharges. 33 U.S.C. § 1342(p)(1), (p)(2) ; see Decker v. Nw. Envtl. Def. Ctr. , 568 U.S. 597, 603, 133 S.Ct. 1326, 185 L.Ed.2d 447 (2013). Exempted from this moratorium were discharges from industrial activity, large and medium-sized municipal storm sewer systems, and sources previously subject to permits.¹ 33 U.S.C. § 1342(p)(2)(A)–(D). The Act also directed EPA to develop and implement permit procedures for exempted discharges. 33 U.S.C. § 1342(p)(3), (p)(4). EPA's regulations under that directive became known as "Phase I Regulations." See, e.g. , Envtl. Def. Ctr., Inc. v. U.S. EPA , 344 F.3d 832, 842 (9th Cir. 2003).

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." 33 U.S.C. § 1342(p)(6). EPA was directed to, "at a minimum, (A) establish priorities, (B) establish requirements for State stormwater management programs, and (C) establish expeditious deadlines." Id. The Act authorized EPA to implement this program by setting "performance standards, guidelines, guidance, and management practices and treatment requirements," id. , and, as needed, by imposing permit requirements, Envr. Def. Ctr. , 344 F.3d at 844.

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 the CWA—do not require PG&E to get a permit for its stormwater discharges. See n. 6, infra . The upshot is that no CWA-grounded permit requirement applies to PG&E's stormwater discharges.

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]." 42 U.S.C. § 6972(a)(1)(A). It also creates a private cause of action against a 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). We refer to the latter RCRA section in this opinion as the "endangerment provision."

The endangerment provision 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, 116 S.Ct. 1251.

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.

First, the statute's "integration"² provision, RCRA section 1006(b)(1), requires:

The [EPA] Administrator shall integrate all provisions of this chapter for purposes of administration and enforcement and shall avoid duplication, to the maximum extent practicable, with the appropriate provisions of the Clean Air Act, the Federal Water Pollution Control Act [i.e., CWA] , the Federal Insecticide, Fungicide, and Rodenticide Act, the Safe Drinking Water Act, the Marine Protection, Research and Sanctuaries Act of 1972, and such other Acts of Congress as grant regulatory authority to the Administrator. Such integration shall be effected only to the extent that it can be done in a manner consistent with the goals and policies expressed in this chapter and in the other acts referred to in this subsection.

42 U.S.C. § 6905(b)(1) (emphasis added) (internal citations omitted).

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

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