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Ecological Rights Foundation v. Pacific Gas & Electric Co.

United States District Court, N.D. California

January 30, 2015


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.


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.[1] 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."


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 some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 588, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

The court must draw all reasonable inferences in favor of the non-moving party, including questions of credibility and of the weight to be accorded particular evidence. Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991) ( citing Anderson, 477 U.S. at 255); Matsushita, 475 U.S. at 588 (1986). It is the court's responsibility " to determine whether the 'specific facts' set forth by the nonmoving party, coupled with undisputed background or contextual facts, are such that a rational or reasonable jury might return a verdict in its favor based on that evidence." T.W. Elec. Service v. Pacific Elec. Contractors, 809 F.2d 626, 631 (9th Cir. 1987). " [S]ummary judgment will not lie if the dispute about a material fact is 'genuine, ' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. However, " [w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587.


A. Tire-tracked contaminants

To succeed on its RCRA claim, ERF must establish two elements: (1) the " disposal of any solid or hazardous waste, " (2) " imminent and substantial endangerment to health or the environment." RCRA § 7002(a)(1)(B), 42 U.S.C. § 6972(a)(1)(B). Furthermore, as discussed in the order on standing issues, ERF may not base its claim on any endangerment to health or the environment that may be occurring on site at the PG& E facilities, or even merely in the surrounding neighborhoods. See Order entered January 27, 2012 at 4-6. While ERF primarily bases its claim on the " stormwater laden with oils, PCP and dioxins" transmitted through PG& E's stormwater conveyance systems and allegedly ultimately in to San Francisco and Humboldt Bays, it also asserts there is a " secondary pathway" of " motor vehicle tracking sediments from the Facilities into adjoining streets."

PG& E's motion for summary judgment as to this portion of ERF's claim points out that ERF collected no data and conducted no testing relating to any potential tracking of PCP out of the facilities via vehicle tires. Rather, ERF's expert merely opined that it " is well-known among practitioners in the storm water pollution prevention field" that pollutants can be tracked by vehicles from facilities onto public streets, and that, based on his observations of conditions at the sites, his " qualitative" conclusion is that it is " likely" vehicles are " transporting dioxins, pentachlorophenol, and other pollutants into public streets." From those assertions, ERF contends an inference may be drawn that tire-borne PCP and dioxins are ultimately reaching San Francisco and Humboldt Bays through the municipal storm water systems, in quantities sufficient to create a threat of " imminent and substantial endangerment to health or the environment."

While the claim may be sufficiently plausible for purposes of pleading, at the summary judgment stage it is incumbent on ERF to come forward with actual evidence, as opposed to speculation. That pollutants generally may be tracked off-site by vehicle tires is too thin a reed to support a claim that PG& E is endangering health and environment in San Francisco and Humboldt Bays via such a pathway in this instance. There is no evidence of actual transmission of the pollutants from PG& E's facilities to municipal stormwater systems via the specific method of tire tracking, much less of resulting Bay pollution at a level sufficient to support a RCRA claim. Summary judgment is therefore warranted.

B. Stormwater

As noted, ERF's primary theory is that " [s]tormwater laden with oils, PCP and dioxins" runs off from the facilities " into PG& E's stormwater conveyance systems, which in turn route this contaminated stormwater off-site into San Francisco and Humboldt Bays." [2] The fatal defect in this theory, however, is that the stormwater discharges from PG& E's facilities are subject to regulation only under the Clean Water Act, and not RCRA. As the order granting summary judgment on the Clean Water Act reflects, and as ERF does not contest, the Clean Water Act unquestionably regulates stormwater discharges, although for reasons explained in the prior order, PG& E is not required to obtain a permit for its facilities.

RCRA has two provisions designed to preclude overlap between it and the Clean Water Act. First, § 6905(a) provides that [n]othing in this chapter shall be construed to apply to (or to authorize any State, interstate, or local authority to regulate) any activity or substance which is subject to the Federal Water Pollution Control Act [33 U.S.C.A. § 1251 et seq.] . . . except to the extent that such application (or regulation) is not inconsistent with the requirements of such Act[ ]. 42 U.S.C. § 6905(a). Second, § 6905(b) directs the government administrator to " avoid duplication, to the maximum extent practicable, " between RCRA regulation and government regulation under the Clean Water Act and other environmental acts. 42 U.S.C. § 6905(b). Here, there is no question that stormwater discharged from point sources like the PG& E facilities is subject to regulation under the Clean Water Act.

ERF insists that a prior case it brought against PG& E involving utility poles in the field compels the conclusion that a RCRA claim may go forward notwithstanding applicability of the Clean Water Act. In Ecological Rights Foundation v. Pacific Gas and Elec. Co., 713 F.3d 502 (9th Cir. 2013) (" ERF I "), the court rejected ERF's claims under both the Clean Water Act and RCRA. ERF argues, however, that unless PCP dripping from the poles potentially was a " solid waste" subject to RCRA regulation, the Ninth Circuit would not have bothered analyzing that claim in such detail. In ERF I, however, the threshold issue was whether the utility poles in dispute were " point sources" of pollutants, because the Clean Water Act generally does not govern " nonpoint sources." 713 F.3d at 508. The court concluded utility poles installed in the field are not " point sources", and therefore not subject to regulation under the Clean Water Act in the first instance. 713 F.3d at 510. Accordingly, the non-duplication provisions of RCRA were not implicated in ERF I, and the court necessarily reached the merits of the RCRA claim.

Here, in contrast, the Clean Water Act indisputably regulates stormwater discharges from the PG& E facilities. As explained in the prior order, the regulations under that Act do not require PG& E to obtain a permit for those discharges, thereby defeating the claim that PG& E is not in compliance. By virtue of § 6905(a), RCRA cannot not serve as an additional avenue to impose a different regulatory requirement.

ERF also attempts to save its claim under RCRA by focusing on the contaminants that allegedly drip from the new poles, from the TWW, and that are present in the sawdust left on the ground, whether or not aided by rainwater. To the same end, ERF lays heavy emphasis on a " guidance memorandum" issued by the EPA in June of 2014, which it contends represents the agency's view on " what constitutes RCRA solid waste." That memorandum is critical of the ERF I decision that PCP dripping from poles in use in the field is not solid waste subject to RCRA regulation.

Whatever deference the EPA memorandum might otherwise be entitled to, if any, neither it nor the portion of ERF I it criticizes is particularly pertinent to the analysis here. ERF I observed that PCP dripping from poles in the field arguably continued to serve a preservative purpose. 713 F.3d at 516. The same cannot be said of any drippings from the new poles on racks in the yards, or from the TWW materials at issue in this case. Even assuming, however, that PCP dripping from the poles or TWW, or washed by rainwater onto the ground of the PG& E yards, is " solid waste" within the meaning of RCRA, ERF lacks standing to pursue any such " on site" RCRA violation.

Put differently, if what ERF is complaining about is the discharge of PCP-laden stormwater from the PG& E sites, then the applicable statute is the Clean Water Act, and its claim fails for reasons set out in the prior order. If instead ERF is attempting to challenge the deposit of PCP oils onto the ground of the facilities, a RCRA claim might be theoretically viable, but ERF is not the proper plaintiff.[3]


PG& E's motion for summary judgment on the RCRA claim with respect to the four identified facilities is granted. ERF's counter motion for summary judgment and request for injunctive relief is denied. Within 20 days of the date of this order, the parties shall jointly submit either a proposed final judgment concluding this action in its entirety, or a statement regarding the issues they believe remain to be resolved and a proposal for how that will be done.


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