Case summaries.

PositionI, Environmental Quality through II. Natural Resources F. Department of Interior Appropriations Act, p. 843-891 - 2013 Ninth Circuit Environmental Review

    1. Federal Water Pollution Control Act

      1. Ecological Rights Foundation v. Pacific Gas & Electric Co., 713 F.3d 502 (9th Cir. 2013).

        Ecological Rights Foundation (ERF)1 filed this action against Pacific Gas & Electric Company (PG&E) and Pacific Bell Telephone Company (Pacific Bell)2 (collectively, Companies) in the U.S. District Court for the Northern District of California. ERF alleged that the Companies' utility poles--which were treated with a wood preservative containing pentachlorophenol (PCP)--discharged PCP in violation of the federal Clean Water Act (CWA)3 and the Resource Conservation and Recovery Act (RCRA).4 The district court dismissed ERF's claim for failure to state a claim and the Ninth Circuit affirmed, concluding that the utility poles were neither a "point source discharge" nor "associated with industrial activity" under the CWA, and that wood preservative that escapes from the poles is not "solid waste" under RCRA. Further, because ERF already had two opportunities to amend its complaint and did not propose any amendments that would cure the complaint's defects, the Ninth Circuit held that the district court did not abuse its discretion in denying ERF leave to amend.

        ERF filed an initial complaint against PG&E on August 13, 2009 asserting only CWA claims. ERF filed two amended complaints, adding a RCRA claim in September 2009, (5) and Pacific Bell as a defendant in June 2010.(6) The Companies filed a motion to dismiss and the district court granted it because the contaminated stormwater runoff from the utility poles was not a "point source" under the CWA, and the preservative escaping from the utility poles was not a "solid waste" under RCRA. Furthermore, the district court dismissed without leave to amend because ERF's theory of liability could not "be rectified by further amendment." (7) On appeal the Ninth Circuit reviewed the dismissal for failure to state a claim de novo and the dismissal without leave to amend for abuse of discretion.

        The Ninth Circuit first determined there was no "point source" discharge. ERF alleged that when rain falls on the Companies' utility poles, it naturally mixes with the wood preservative and becomes contaminated, and subsequently discharges into the San Francisco Bay, its tributaries, and adjacent wetlands via non-natural means. The com! rejected this assertion because stormwater runoff does not establish a "point source" discharge unless it is discretely collected and conveyed. (8) In response to ERF's theory that utility poles are themselves "conveyances," the court concluded that, in the absence of guidance from the CWA or U.S. Environmental Protection Agency (EPA), there was no case law to support such interpretation. (9) In response to ERF's allegations that contaminated runoff was collected in unidentified ditches and conveyed to waters of the United States, the Ninth Circuit concluded that ERF had not alleged these claims in its complaint and therefore could not add them on appeal. (10)

        In addition to affirming the district court's dismissal of ERF's CWA claim on "point source" grounds, the Ninth Circuit also concluded that dismissal would have been proper because discharges from utility poles do not fall under any of the CWA's stormwater categories. ERF argued that stormwater discharge from Companies' utility poles fell within "discharge(s) associated with industrial activity." (11) The Ninth Circuit disagreed for four reasons. First, the court concluded that contaminated stormwater runoff from utility poles does not fit within EPA's definition of "discharge associated with industrial activity." (12) Second, the court held that no Standard Industrial Classification (SIC) code cited in EPA's definition of "industrial activity" covers utility poles. (13) Third, the court interpreted EPA's decisions defining "industrial activity" to include "steam electric power generating facilities" and exclude "major electrical power line corridors" (14) to mean that EPA did not intend to regulate discharge from utility poles. Fourth, the court accepted a traditional "slippery slope" argument that if utility poles were held to be an industrial activity, so too must signs, bike racks, mailboxes, and more. The court rejected this as counter to EPA's measured regulation of stormwater discharges, as well as the court's practice of reading statutes to "avoid ... absurd results." (15)

        The Ninth Circuit then addressed ERF's RCRA claim, which turned on whether the PCP-based wood preservative constituted a "solid waste." ERF argued that when the wood preservative escaped from the utility poles, it no longer served its intended use, and therefore qualified as "solid waste." (16) While the Ninth Circuit accepted that the key to defining "solid waste" is whether the product has served its intended purpose and is no longer wanted by the consumer, it concluded that, absent EPA guidance, a wood preservative released into the environment as a natural, expected consequence of its intended use is not automatically "solid waste" under RCRA. The Ninth Circuit gave five reasons for concluding that wood preservative release was not waste. First, a wood preservative applied to a utility pole is used for its intended purpose. Even if the preservative falls to the base of the pole over time, it still serves its intended purpose by inhibiting growth of vegetation, fungi, and other organisms. (17) Second, the court analogized the situation to spent munitions, which EPA does not treat as "discarded." (18) Third, EPA has approved the use of PCP as a wood preservative for utility poles under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). (19) The court noted that it would be odd for EPA to have approved PCP's use under FIFRA if such use would result in "solid waste" under RCRA. Fourth, the court noted that EPA does regulate many forms of PCP as "hazardous" and thus "solid" waste, but specifically does not regulate PCP impregnated in treated wood. (20) Finally, the court noted that as of 2008, there were 36 million utility-owned wood poles in service across the country treated with PCP, and it would "def[y] reason" that each is producing "solid waste" under RCRA. (21)

        However, the Ninth Circuit rejected PG&E's argument that the court should dismiss ERF's claims because they did not invoke federal question jurisdiction on their face. (22) First, the Ninth Circuit held that ERF's notices were reasonably specific, even if they did not identify every utility pole that would be affected. (23) Second, the Ninth Circuit held that PG&E's assertion that ERF could not rely on its second amended complaint or third notice letter to cure its deficient first notice and initial complaint unpersuasive. The court pointed out: 1) the argument was not raised in the 12(b)(1) motion; 2) the notices were not deficient; and 3) the only differences between the first and third notice letters were that responsible parties were added and ERF addressed all poles treated with chemical preservatives, not just those treated with PCP. Last, the court held that PG&E had no right to complain that it lacked time to decide whether and how to respond to ERF's allegations. (24)

        Finally, the Ninth Circuit addressed the issue of whether ERF should have been allowed to amend its complaint. The Ninth Circuit made clear that no claim ERF could have asserted on remand was a claim upon which relief may be granted under the CWA or RCRA. The court also placed weight on its previous holding that a district court's discretion to deny leave to amend is particularly broad where the plaintiff has previously amended its complaint. (25) As the court pointed out, ERF already had two chances to amend.

      2. California Sportfishing Protection Alliance v. Chico Scrap Metal, Inc., 728 F.3d 868 (9th Cir. 2013).

        California Sportfishing Protection Alliance (Alliance) brought a citizen suit under the Clean Water Act (CWA) (26) against Chico Scrap Metal, Inc. (Chico) (27) in the United States District Court for the Eastern District of California. Alliance asserted that Chico violated multiple conditions of the general National Pollutant Discharge Elimination System (NPDES) permit under which Chico was covered for stormwater discharges. Chico filed a motion to dismiss, arguing that due to earlier criminal and civil actions brought by the State of California, the suit was barred by the CWA's diligent prosecution provision. (28) The district court granted Chico's motion to dismiss. Alliance appealed and the Ninth Circuit reversed the district court, holding that the suit was not barred.

        Alliance is an environmental activist group that works to protect fisheries, water quality, and water rights. (29) Chico is the owner and operator of three scrap metal recycling facilities located in Butte, California. California's Industrial Activities Storm Water General Permit (the Permit) governs Chico's stormwater discharges from these facilities. In January 2010, the U.S. Environmental Protection Agency (EPA) inspected Chico's facilities and found that Chico had violated the Permit. Alliance sent notices of its intent to sue Chico to state and federal agencies, as well as to Chico. The state and federal agencies did not commence an enforcement action under the CWA against Chico. Section 505 of the CWA allows for citizen suit enforcement of permit standards except when the state or federal government "has commenced and is diligently prosecuting a civil or criminal action in a court of the United States." (30) The Ninth Circuit reviewed the district court's decision de novo.

        Chico first argued that Alliance's suit was barred because it was "comparable" to the prior criminal and civil actions brought by the State of California. The Ninth Circuit disagreed, holding that the language of section 1365(b)(1)(B) bars citizen suits only when the government action aims to require compliance with the same CWA standard. The Ninth...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT