United States District Court, N.D. California
For Ecological Rights Foundation, Plaintiff: Christopher Alan Sproul, LEAD ATTORNEY, Environmental Advocates, San Francisco, CA USA; Brian Orion, San Francisco, CA USA; Fredric Evenson, Law Offices of Fredric Evenson, Eureka, CA USA; Jodene Louise Isaacs, Environmental Advocates, San Francisco, CA USA; William Leonard Verick, Klamath Environmental Law Center, Eureka, CA USA.
For Pacific Gas And Electric Company, Defendant: Salem Wayne Rosenbaum, LEAD ATTORNEY, San Diego, CA USA; Bradley S Rochlen, J. Michael Showalter, Rocky N. Unruh, Russell Bertram Selman, Schiff Hardin LLP, Chicago, IL USA.
ORDER RE CROSS MOTIONS FOR SUMMARY JUDGMENT ON RCRA CLAIM
RICHARD SEEBORG, United States District Judge.
Plaintiff Ecological Rights Foundation (" ERF") brought this action contending that the activities of defendant Pacific Gas and Electric Company (" PG& E") at 31 of its " corporation yards and service centers" in Northern California violate the Clean Water Act and Resource Conservation and Recovery Act (" RCRA"). By prior cross motions for summary judgment, the Clean Water Act claims have been resolved in PG& E's favor. Each side now seeks summary judgment in its favor on the RCRA claim.
The scope of ERF's claim under RCRA is necessarily circumscribed both by the content of its notice of intent to sue letter and the standing doctrine. The order permitting ERF to proceed beyond the pleading stage determined that ERF's claim is limited to " PG& E's storage and handling of utility poles treated with pentachlorophenol" to the extent " hazardous wastes related to the poles [are] dispersed into the environment through (1) stormwater, and (2) vehicles ( i.e., tracked by tires)." A subsequent summary judgment order on the issue of standing held that even were ERF to show contamination of the ground within PGE's facilities in violation of RCRA, but failed to prove a resulting RCRA violation with respect to the waters of the San Francisco or Humboldt Bays, it would not have standing to seek relief with respect to any such " on-site only" violation.
Given these constraints, ERF's claim under RCRA is untenable, and summary judgment in PG& E's favor must enter. ERF has failed to come forward with evidence sufficient to create a triable issue of fact that the waters of San Francisco or Humboldt Bays are endangered by pentachlorophenol (" PCP") dispersed from the corporation and service yards by tracking on vehicle tires. Moreover, ERF's primary claim--that PCP is dispersed from the yards to the Bays through stormwater runoff-- is fatally flawed because the Clean Water Act, not RCRA, governs stormwater discharges.
As noted, ERF's remaining claim under RCRA relates to utility poles stored and handled at PG& E's corporation and service yards. PG& E utility poles are treated with PCP, which includes dioxins, as a preservative. The basic facts regarding PG& E's handling of utility poles at its facilities is largely undisputed, at least for the purposes of this motion. First, PG& E has routinely transported used waste utility poles and wooden cross arms used to suspend its electrical transmission wires, which PG& E labels " Treated Wood Waste" or TWW, to the facilities for processing and disposal. PG& E generally places TWW into waste bins, which are uncovered and exposed to rainfall. While the bins are supposed to be watertight, ERF contends they are not, and that rainwater seeping through the bins carries PCP from the TWW to the ground. Additionally, large pieces of TWW are sometimes cut up at the facilities, generating sawdust. New poles are also sometimes cut on the sites, also generating sawdust. While PG& E has a policy mandating employees to contain, gather and dispose of such sawdust in waste bins, there is evidence that sometimes sawdust is left on the ground. There is also evidence that, contrary to policy, TWW is sometimes stored on the ground rather than being placed in bins. PG& E does not use TWW for any further purpose, but instead ships it for permanent disposal in landfills.
PG& E also sometimes stores new utility poles and pole cross-arms at the sites. These poles and cross-arms, intended for use as replacements when needed on an emergency basis, are stored outdoors, uncovered on racks. There is evidence that PCP oil drips from these poles onto the ground.
ERF contends that " [s]tormwater laden with oils, PCP and dioxins" runs off from the bins and from the areas where new poles are racked " into PG& E's stormwater conveyance systems, which in turn route this contaminated stormwater off-site into San Francisco and Humboldt Bays." As a secondary transmission mechanism, ERF also argues that " [t]he extensive PG& E service vehicle traffic entering and exiting the Facilities tracks sediments off the Facilities into adjoining streets."
III. LEGAL STANDARD
Summary judgment is proper " if the pleadings and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The purpose of summary judgment " is to isolate and dispose of factually unsupported claims or defenses." Celotex v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party " always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings and admissions on file, together with the affidavits, if any which it believes demonstrate the absence of a genuine issue of material fact." Id. at 323 (citations and internal quotation marks omitted). If it meets this burden, the moving party is then entitled to judgment as a matter of law when the non-moving party fails to make a sufficient showing on an essential element of the case with respect to which he bears the burden of proof at trial. Id. at 322-23.
The non-moving party " must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The non-moving party cannot defeat the moving party's properly supported motion for summary judgment simply by alleging some factual dispute between the parties. To preclude the entry of summary judgment, the non-moving party must bring forth material facts, i.e., " facts that might affect the outcome of the suit under the governing law . . . . Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The opposing party " must do more than simply show that there is ...