Ecological Rights Foundation v. PG&E, No. 11-16042 (9th Cir. 2013)
Annotate this CaseDefendants, PG&E and Pacific Bell, own and maintain utility poles throughout the San Francisco Bay Area. Plaintiff filed this action against both companies, alleging that the poles discharged wood preservative into the environment in violation of the 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 court affirmed the district court's dismissal of the action under Rule 12(b)(6) where plaintiff failed to state a claim under the CWA because discharges of stormwater from the utility poles were neither a "point source discharge" nor "associated with industrial activity" and where plaintiff failed to state a claim under the RCRA because wood preservation that escaped from the utility poles was not a "solid waste." The court also held that the district court did not abuse its discretion in denying plaintiff leave to amend.
Court Description: Environmental Law. The panel affirmed the dismissal of a citizen suit alleging that utility poles discharged wood preservative into the environment in violation of the Clean Water Act and the Resource Conservation and Recovery Act. The panel held that the plaintiff failed to state a claim under the CWA because discharges of stormwater from the utility poles were neither a “point source discharge” nor “associated with industrial activity.” The plaintiff failed to state a claim under RCRA because wood preservative that escaped from the utility poles was not a “solid waste.” Concurring in part and concurring in the result, Judge Hurwitz wrote that he concurred in the majority opinion except insofar as it held that utility poles cannot be point sources for purposes of the CWA under circumstances not presented by this case. He wrote that resolution of this issue was unnecessary given the conclusion, which he joined, that the defendants’ utility poles were not associated with industrial activity.
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