Ecological Rights Foundation v. PG&E

Justia.com Opinion Summary: Defendants, 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.

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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.

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ECOLOGICAL RIGHTS FOUNDATION , Plaintiff-Appellant, No. 11-16042 v. D.C. No. 4:09-cv-03704SBA PACIFIC GAS AND ELECTRIC COMPANY ; PACIFIC BELL TELEPHONE COMPANY , Defendants-Appellees. OPINION Appeal from the United States District Court for the Northern District of California Saundra B. Armstrong, District Judge, Presiding Argued and Submitted October 16, 2012âSan Francisco, California Filed April 3, 2013 Before: Richard C. Tallman, Consuelo M. Callahan, and Andrew D. Hurwitz, Circuit Judges. Opinion by Judge Callahan; Concurrence by Judge Hurwitz 2 ECOLOGICAL RIGHTS FOUNDATION V . PG&E SUMMARY* 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 âpoint source dischargeâ nor âassociated with industrial activity.â The plaintiff failed to state a claim under RCRA because wood preservative that escaped from the utility poles was not a âsolid waste.â 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 defendantsâ utility poles were not associated with industrial activity. * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. ECOLOGICAL RIGHTS FOUNDATION V . PG&E 3 COUNSEL Christopher Sproul (argued), Jodene Isaacs, and Brian Orion, Environmental Advocates, San Francisco, California; William Verick, Klamath Environmental Law Center, Eureka, California, for Plaintiffs-Appellants. Russell B. Selman, Bradley S. Rochlen (argued), and J. Michael Showalter, Schiff Hardin LLP, Chicago, Illinois, for Defendant-Appellee Pacific Gas & Electric Company. Douglas W. Sullivan (argued) and Joel D. Smith, Crowell & Morring LLP, San Francisco, California, for DefendantAppellee Pacific Bell Telephone Company. Daniel J. Herling, Keller & Heckman LLP, San Francisco, California, for amicus KMG-Bernuth, Inc. Karma B. Brown, Hunton & Williams LLP, Washington, D.C.; Brooks M. Smith, Hunton & Williams LLP, Richmond, Virginia, for amici American Coke & Coal Chemicals Institute, et al. OPINION CALLAHAN, Circuit Judge: Defendants-Appellees Pacific Gas & Electric Company (âPG&Eâ) and Pacific Bell Telephone Company (âPacific Bellâ) own and maintain utility poles throughout the San Francisco Bay Area. Many of the poles are treated with a wood preservative that contains pentachlorophenol (âPCPâ), a general biocide, and other chemicals. Plaintiff-Appellant 4 ECOLOGICAL RIGHTS FOUNDATION V . PG&E Ecological Rights Foundation (âERFâ) filed this action against both companies, alleging that the poles discharge wood preservative into the environment in violation of the federal Clean Water Act (âCWAâ), 33 U.S.C. §§ 1251â1387, and the Resource Conservation and Recovery Act (âRCRAâ), 42 U.S.C. §§ 6901â6992k. The district court, which had jurisdiction pursuant to 28 U.S.C. § 1331, 33 U.S.C. § 1365(a)(1), and 42 U.S.C. § 6972(a)(1)(B), dismissed ERFâs action for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), without leave to amend. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. ERF fails to state a claim under the CWA because discharges of stormwater from the utility poles are neither a âpoint source dischargeâ nor âassociated with industrial activity.â ERF also fails to state a claim under RCRA because wood preservative that escapes from the utility poles is not a âsolid waste.â Finally, the district court did not abuse its discretion in denying ERF leave to amend; ERF had, and took advantage of, two opportunities to amend its complaint, and none of ERFâs proposed amendments would cure the defects in its allegations. BACKGROUND A. Statutory and regulatory background 1. The CWA The CWA is designed to ârestore and maintain the chemical, physical, and biological integrity of the Nationâs waters.â 33 U.S.C. § 1251(a). The CWA prohibits the âdischarge of any pollutant.â Id. § 1311(a). âDischarge of a ECOLOGICAL RIGHTS FOUNDATION V . PG&E 5 pollutantâ refers to âany addition of any pollutant to navigable waters from any point source;â âpollutantâ refers to, among other things, âsolid wasteâ and âchemical wastes;â and ânavigable watersâ refers to âthe waters of the United States . . . .â Id. §§ 1362(6), (7), (12). The Environmental Protection Agency (âEPAâ), or a State to which EPA has delegated its authority, may issue a National Pollutant Discharge Elimination System (âNPDESâ) permit âfor the discharge of any pollutant, . . . notwithstanding section 1311(a) of this title.â Id. § 1342(a). NPDES permits are required for discharges from any âpoint source,â but not for discharges from ânonpoint sources.â League of Wilderness Defenders v. Forsgren, 309 F.3d 1181, 1183 (9th Cir. 2002). Permits are either individual (authorizing âa specific entity to discharge a pollutant in a specific placeâ through an informal adjudication) or general (authorizing entities in a geographic area to discharge following a rulemaking). NRDC v. U.S. EPA, 279 F.3d 1180, 1183 (9th Cir. 2002). Stormwater presents a unique problem under the CWA because it is a significant source of water pollution but is not âinherently a nonpoint or point source.â Nw. Envtl. Def. Ctr. v. Brown, 640 F.3d 1063, 1070â71 (9th Cir. 2011), revâd on other grounds, Decker v. Nw. Envtl. Def. Ctr., â U.S. â , 2013 WL 1131708 (Mar. 20, 2013); Envtl. Def. Ctr., Inc. v. U.S. EPA, 344 F.3d 832, 840â41 (9th Cir. 2003). EPA originally attempted to exempt stormwater discharges from NPDES permitting, but the D.C. Circuit found such exemption unlawful. NRDC v. Costle, 568 F.2d 1369, 1379 (D.C. Cir. 1977). EPA then passed regulations and, in 1987, Congress amended the CWA to regulate stormwater. Pub. L. 6 ECOLOGICAL RIGHTS FOUNDATION V . PG&E No. 100-4, 101 Stat. 7 (1987) (codified at 33 U.S.C. § 1342(p)); see also Decker, 2013 WL 1131708, at *4. The 1987 amendments established a two-phase approach. See generally Envtl. Def. Ctr., 344 F.3d at 841â43. In Phase I, EPA required NPDES permits for the most significant stormwater discharges: those from a prior permitted source or large municipality; those that âcontribute[ ] to a violation of a water quality standard or [are] a significant contributor of pollutants to waters of the United States;â and, most significantly for this case, those âassociated with industrial activity.â 33 U.S.C. § 1342(p)(2); see also [NPDES] Application Regulations for Storm Water Discharges, 55 Fed. Reg. 47,990 (Nov. 16, 1990) (codified at 40 C.F.R. pts. 122â124). In Phase II, EPA required NPDES permits for stormwater discharges from smaller municipal storm systems and construction sites that disturb between one and five acres. 40 C.F.R. § 122.26(a)(9)(i)(A)â(B); see also [NPDES]âRegulations for Revision of the Water Pollution Control Program Addressing Storm Water Discharges, 64 Fed. Reg. 68,722 (Dec. 8, 1999) (codified at 40 C.F.R. pts. 9, 122, 123, and 124). EPA retained authority to regulate other stormwater discharges on a local or regional, as-needed basis. 40 C.F.R. § 122.26(a)(9)(i)(C)â(D). We upheld most of EPAâs Phase II regulation, including EPAâs decision to retain authority to designate other stormwater discharges on a case-by-case basis, in Environmental Defense Center, 344 F.3d at 856â60, 873â78. 2. RCRA âRCRA is a comprehensive environmental statute that governs the treatment, storage, and disposal of solid and hazardous waste.â Meghrig v. KFC W., Inc., 516 U.S. 479, ECOLOGICAL RIGHTS FOUNDATION V . PG&E 7 483 (1996). RCRAâs âprimary purposeâ is âto reduce the generation of hazardous waste and to ensure the proper treatment, storage, and disposal of that waste which is nonetheless generated, âso as to minimize the present and future threat to human health and the environment.ââ Id. (quoting 42 U.S.C. § 6902(b)). 3. Citizen suits Chief responsibility for enforcement of the CWA and RCRA lies with EPA, which may delegate that authority to the States. Both statutes provide for âcitizen suitsâ against persons who are alleged to be in violation of the statutesâ requirements. See 33 U.S.C. § 1365; 42 U.S.C. § 6972. A private citizen may file an action under the CWA against a person âwho is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation.â 33 U.S.C. § 1365(a)(1). A citizen may file an action under RCRA âagainst any 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.â 42 U.S.C. § 6972(a)(1)(B). A citizen plaintiff must give notice to the alleged violator at least 60 days before filing suit under the CWA, and, for the action at issue here, at least 90 days under RCRA. 33 U.S.C. § 1365(b)(1)(A); 42 U.S.C. § 6972(b)(2)(A); see also Hallstrom v. Tillamook Cnty., 493 U.S. 20, 31 (1989) (holding that RCRAâs notice and delay requirements, if not jurisdictional, âare mandatory conditions precedent to 8 ECOLOGICAL RIGHTS FOUNDATION V . PG&E commencing suit under the RCRA citizen suit provisionâ); Covington v. Jefferson Cnty., 358 F.3d 626, 636 (9th Cir. 2004) (holding that RCRA requirements are jurisdictional); Ctr. for Biological Diversity v. Marina Point Dev. Co., 566 F.3d 794, 800 (9th Cir. 2009) (â[T]he giving of a 60-day notice [under the CWA] is . . . a jurisdictional necessity.â).1 B. Factual and procedural background On June 4, 2009, ERF sent a letter to PG&E stating that it intended to file a citizen suit under the CWA and RCRA. The letter alleged that PG&E had violated these statutes by releasing into the environment wood preservative from PG&Eâs utility poles in Alameda, Contra Costa, Marin, and San Francisco Counties. The letter contended that wood preservative is oil-based and contains âtoxicâ chemicals, including PCP and various forms of dioxin. The letter included a non-exhaustive list of utility poles in dispute and the dates of the alleged violations. On August 13, 2009, ERF filed a complaint against PG&E asserting CWA claims. Thirty days later, ERF filed a first amended complaint adding a RCRA claim and attaching the June 2009 notice letter. ERF sent two more notice letters dated October 14, 2009, and January 6, 2010. The October 2009 notice added alleged responsible parties but was otherwise identical to the June 2009 notice. The January 2010 notice added Pacific Bell, among other parties, and 1 No citizen suit may proceed if EPA or a State chooses to bring its own action against the alleged violator. 33 U.S.C. § 1365(b)(1)(B); 42 U.S.C. § 6972(b)(2)(B)â(C). Neither EPA nor the State of California has so intervened in this action. ECOLOGICAL RIGHTS FOUNDATION V . PG&E 9 discussed poles treated with any chemical preservative, not just PCP. On June 21, 2010, ERF filed a second amended complaint, the operative complaint in this appeal. The complaint added Pacific Bell as a defendant and alleged that PG&E and Pacific Bell had violated and were violating: (1) the CWA, 33 U.S.C. § 1311(a), by discharging âpollutantbearing storm water runoffâ from their utility poles into waters of the United States without an NPDES permit; (2) the CWA, id. §§ 1311(a), 1342, by failing to obtain an NPDES permit, regardless of any discharges; and (3) RCRA, 42 U.S.C. § 6972(a)(1)(B), by contributing to âthe past and present handling, storage, treatment, transportation and disposal of solid waste,â which may present an âimminent and substantial endangerment to health or the environment.â PG&E and Pacific Bell filed motions to dismiss the second amended complaint for failure to state a claim. The district court granted the defendantsâ motions. Ecological Rights Found. v. Pac. Gas & Elec. Co., 803 F. Supp. 2d 1056 (N.D. Cal. 2011). The court dismissed the CWA claim on the ground that stormwater runoff contaminated by wood preservative from the defendantsâ utility poles is not a âpoint sourceâ discharge requiring an NPDES permit. Id. at 1062â63. The court dismissed the RCRA claim on the ground that wood preservative that escapes from the defendantsâ utility poles is not a âsolid wasteâ under RCRA. Id. at 1063â65. The court dismissed the second amended complaint without leave to amend because ERFâs âtheory of 10 ECOLOGICAL RIGHTS FOUNDATION V . PG&E liability under the CWA and RCRA cannot be rectified by further amendment to the pleadings.â Id. at 1065.2 ERF appeals only the dismissal of its first CWA claim (discharge without an NPDES permit) and RCRA claim; ERF does not appeal the dismissal of its second CWA claim (failure to obtain an NPDES permit regardless of any discharge). STANDARD OF REVIEW âWe review de novo the district courtâs dismissal of a complaint for failure to state a claim. We review for abuse of discretion a district courtâs decision to dismiss with prejudice.â Okwu v. McKim, 682 F.3d 841, 844 (9th Cir. 2012) (internal and external citations omitted). The court may affirm the dismissal on any ground supported by the record. United States v. Washington, 573 F.3d 701, 706 (9th Cir. 2009). The court must accept âall factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party.â Rowe v. Educ. Credit Mgmt. Corp., 559 F.3d 1028, 1029â30 (9th Cir. 2009) (quotation marks omitted). âDetermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.â Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 2 PG&E also moved to dismiss ERFâs complaint for lack of subjectmatter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The district court denied this motion. Ecological Rights Found., 803 F. Supp. 2d at 1060â61. ECOLOGICAL RIGHTS FOUNDATION V . PG&E 11 DISCUSSION A. Dismissal under Rule 12(b)(6) 1. CWA a. âPoint sourceâ discharges The CWA defines âpoint sourceâ as âany discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. . . .â 33 U.S.C. § 1362(14). The CWA does not define ânonpoint source,â but we have explained that it is widely understood to be the type of pollution that arises from many dispersed activities over large areas, and is not traceable to any single discrete source. Because it arises in such a diffuse way, it is very difficult to regulate through individual permits. The most common example of nonpoint source pollution is the residue left on roadways by automobiles. Small amounts of rubber are worn off of the tires of millions of cars and deposited as a thin film on highways; minute particles of copper dust from brake linings are spread across roads and parking lots each time a driver applies the brakes; drips and drabs of oil and gas ubiquitously stain driveways and streets. When it rains, the rubber particles and copper dust and gas and oil wash off of the 12 ECOLOGICAL RIGHTS FOUNDATION V . PG&E streets and are carried along by runoff in a polluted soup, winding up in creeks, rivers, bays, and the ocean. League of Wilderness Defenders, 309 F.3d at 1184; see also Or. Natural Desert Assân v. U.S. Forest Serv., 550 F.3d 778, 785 (9th Cir. 2008) (discussing regulation, or lack thereof, of ânonpoint sourcesâ). Stormwater runoff is âa nonpoint or point source . . . depending on whether it is allowed to run off naturally (and is thus a nonpoint source) or is collected, channeled, and discharged through a system of ditches, culverts, channels, and similar conveyances (and is thus a point source discharge).â Brown, 640 F.3d at 1071; see also Greater Yellowstone Coal. v. Lewis, 628 F.3d 1143, 1152 (9th Cir. 2010), as amended (Jan. 25, 2011) (âThe text of [the CWA] and the case law are clear that some type of collection or channeling is required to classify an activity as a point source.â); Envtl. Def. Ctr., 344 F.3d at 841 n.8 (âDiffuse runoff, such as rainwater that is not channeled through a point source, is considered nonpoint source pollution and is not subject to federal regulation.â); Trustees for Alaska v. EPA, 749 F.2d 549, 558 (9th Cir. 1984) (â[P]oint and nonpoint sources are not distinguished by the kind of pollution they create or by the activity causing the pollution, but rather by whether the pollution reaches the water through a confined, discrete conveyance.â); cf. Decker, 2013 WL 1131708, at *16 (Scalia, J., concurring in part and dissenting in part) (explaining that stormwater runoff from logging roads âcame from point sources, because they flowed out of artificial âpipe[s],â âditch[es],â and âchannel[s],â 33 U.S.C. § 1362(14), and were thus not ânatural runoffââ). ECOLOGICAL RIGHTS FOUNDATION V . PG&E 13 ERF alleges that rain falls on and around the defendantsâ utility poles and becomes contaminated with wood preservative. As a result, the preservative is âcarried by storm water runoff discharged from the Poles to San Francisco Bay, its tributaries and adjacent wetlands.â Such allegations of generalized stormwater runoff do not establish a âpoint sourceâ discharge absent an allegation that the stormwater is discretely collected and conveyed to waters of the United States. See Greater Yellowstone Coal., 628 F.3d at 1152â53 (holding that stormwater that seeps through a mining pit cover is ânonpoint source pollution because there is no confinement or containment of the waterâ); Trustees for Alaska, 749 F.2d at 558 (â[N]onpoint source pollution [i]s runoff caused primarily by rainfall around activities that employ or create pollutants.â). ERFâs two counterarguments give it no purchase. First, ERF contends that the district court (and by extension, we) have read into its complaint an allegation it does not containâthat the stormwater runoff reaches regulated waters âthrough natural means.â However, given the longstanding distinction in our case law between natural and conveyed stormwater under the CWA, the district courtâs reading is reasonable absent any allegation that the runoff reaches regulated waters via some other method. See Sierra Club v. Abston Constr. Co., 620 F.2d 41, 45 (5th Cir. 1980) (explaining that point source âconveyancesâ are âthe means by which pollutants are ultimately deposited into a navigable body of waterâ). To get around the absence of a conveyed stormwater allegation in its complaint, ERF next contends that the defendantsâ utility poles are themselves âconveyances.â In other words, ERF contends that âpoint sourcesâ are not just 14 ECOLOGICAL RIGHTS FOUNDATION V . PG&E âditches, culverts, and similar channels,â but any âtangible, identifiable thing.â Because the CWA is ambiguous on this issue, we would normally defer to EPA. See Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984). But EPA has not yet determined whether utility poles are point sources; until EPA addresses that question, we look to cases for guidance. See Garfias-Rodriguez v. Holder, 702 F.3d 504, 512â13 (9th Cir. 2012) (en banc) (granting Chevron deference to agency interpretation issued after contrary circuit cases); Managed Pharmacy Care v. Sebelius, 705 F.3d 934, 943â44 (9th Cir. 2012) (holding that the Ninth Circuit was not bound by a prior opinion rendered without the benefit of the agencyâs statutory interpretation or participation in the litigation). The case law does not support ERFâs attempt to characterize the poles as point sources. The cases ERF cites involved things that (1) the CWA specifically identifies as point sources,3 (2) were constructed for the express purpose of storing pollutants or moving them from one place to another,4 or (3) no one disputed were point sources.5 Solid 3 See, e.g., United States v. W. Indies Transp., Inc., 127 F.3d 299, 308 n.9 (3d Cir. 1997) (barges and their components, which are âvessel[s] or floating craft[s]â under 33 U.S.C. § 1362(14)); United States v. M.C.C. of Fla., Inc., 772 F.2d 1501, 1505-06 (11th Cir. 1985), judgment vacated on other grounds, 481 U.S. 1034, 107 S. Ct. 1968, 95 L. Ed. 2d 809 (1987) (â[T]he tugs used by M.C.C. were point sources since the [CW A] specifically includes vessels within the meaning of that termâ); see also Cmty. Assân for Restoration of the Envât v. Henry Bosma Dairy, 305 F.3d 943, 955 (9th Cir. 2002) (concentrated animal feeding operations); 33 U.S.C. § 1362(14) (listing additional things that are âpoint sourcesâ). 4 See, e.g., Peconic Baykeeper, Inc. v. Suffolk Cnty., 600 F.3d 180, 188â89 (2d Cir. 2010) (aerial pesticide sprayers); Parker v. Scrap Metal Processors, Inc., 386 F.3d 993, 1009 (11th Cir. 2004) (piled debris that collected stormwater and channeled it into a nearby stream); Concerned ECOLOGICAL RIGHTS FOUNDATION V . PG&E 15 wood utility poles are none of these things. Recognizing the lack of clarity in the CWA, we conclude that, in the absence of any guidance from EPA, utility poles simply are not âdiscernible, confined and discrete conveyance[s]â that âchannel[ ] and control[ ]â stormwater. 33 U.S.C. § 1362(14); Brown, 640 F.3d at 1079; see also S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95, 105 (2004) (emphasizing that âpoint sourceâ refers to things that transport pollutants); United States v. Plaza Health Labs., Inc., 3 F.3d 643, 646 (2d Cir. 1993) (explaining that âpoint sourcesâ are âphysical structures and instrumentalities that systematically act as a means of conveying pollutants from an industrial source to navigable waterwaysâ). For these Area Residents for Envât v. Southview Farm, 34 F.3d 114, 118-19 (2d Cir. 1994) (manure spreader, which was a ârolling stockâ or âcontainerâ under 33 U.S.C. § 1362(14)); Avoyelles Sportsmenâs League, Inc. v. Marsh, 715 F.2d 897, 922 (5th Cir. 1983) (bulldozers and backhoes, âsince they collected into windrows and piles material that may ultimately have found its way back into the watersâ); Sierra Club, 620 F.2d at 45 (human-made spoil piles and sediment basins that collected and channeled stormwater); United States v. Earth Scis., Inc., 599 F.2d 368, 374 (10th Cir. 1979) (âcombination of sumps, ditches, hoses and pumps is a circulating or drainage system to serveâ a mining operation); see also League of Wilderness Defenders, 309 F.3d at 1185 (âaircraft equipped with tanks spraying pesticide from mechanical sprayers directly over covered watersâ); Borden Ranch Pâship v. U.S. Army Corps of Engârs, 261 F.3d 810, 815 (9th Cir. 2001), affâd, 537 U.S. 99 (2002) (bulldozers and backhoes, which ripped up and redistributed the bottom layer of soil (the âpollutantâ)); Trustees for Alaska, 749 F.2d at 558 (sluice box, a âconfined channelâ that released discharge water from a mine). 5 See, e.g., Miccosukee Tribe of Indians of Fla. v. S. Fla. Water Mgmt. Dist., 280 F.3d 1364, 1367 (11th Cir. 2002), revâd on other grounds, 541 U.S. 95 (2004) (âNo party disputes that . . . pump station and, in particular, the pipes from which water is released constitute a point source . . . .â). 16 ECOLOGICAL RIGHTS FOUNDATION V . PG&E reasons, ERF has failed to state a claim upon which relief may be granted under the CWA. b. Additional allegations ERF argues that its second amended complaint is not limited to the allegation that contaminated stormwater runoff flows from the utility poles directly into waters of the United States. According to ERF, its complaint also alleges that: (1) the defendantsâ utility poles discharge directly into waters of the United States (through preservative dripping into marshes in which the poles are located), and (2) the stormwater runoff from the poles is collected in unidentified ditches, channels, and other conveyances which then discharge into waters of the United States. ERF never made this argument in the extensive motion proceedings in the district court, and therefore waived it. See Ruiz v. Affinity Logistics Corp., 667 F.3d 1318, 1322 (9th Cir. 2012) (â[A]n issue will generally be deemed waived on appeal if the argument was not raised sufficiently for the trial court to rule on it.â (quotation marks omitted)). As ERF conceded at oral argument, ERF opposed the defendantsâ motions to dismiss on the theory that utility poles are themselves point sources of generalized stormwater runoff, not on the theory that the poles discharged directly into waters of the United States or that the runoff was collected and conveyed into such waters. ERFâs failure to urge these theories below is facially consistent with the second amended complaint. The complaintâs only allegation regarding how the utility poles contaminate waters of the United States is through the generalized âdischargeâ of stormwater, with no mention of ECOLOGICAL RIGHTS FOUNDATION V . PG&E 17 the direct discharge of wood preservative or the collection and conveyance of contaminated stormwater via channels. Although ERF points to words and phrases such as âleak[ing],â âdrip[ping],â and âcontaminat[ion of] surface watersâ in its complaint, these isolated fragments cannot bear the weight ERF places upon them. See Iqbal, 556 U.S. at 686 (â[T]he Federal Rules do not require courts to credit a complaintâs conclusory statements without reference to its factual context.â); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (explaining that a complaint must âpossess enough heftâ to show a plausible claim for relief); A.E. ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (â[A]llegations in a complaint or counterclaim . . . must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.â (quotation marks omitted)). Perhaps recognizing the absence of a direct discharge or collected runoff theory in its complaint, ERF urges us to read the complaint together with its CWA notice letters. Under the âincorporation by referenceâ doctrine, â[e]ven if a document is not attached to a complaint, it may be incorporated by reference into a complaint if the plaintiff refers extensively to the document or the document forms the basis of the plaintiffâs claim.â United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003); see also Davis v. HSBC Bank Nev., N.A., 691 F.3d 1152, 1160 (9th Cir. 2012). Whether a document is âcentralâ to a complaint turns on whether the complaint ânecessarily reliesâ on that document. See Daniels-Hall v. Natâl Educ. Assân, 629 F.3d 992, 998 (9th Cir. 2010). ERFâs notice letters, however, contain no direct discharge allegations. Because a notice letter is a jurisdictional prerequisite to suit, ERF cannot pursue allegations its notice letter does not contain. See supra at 18 ECOLOGICAL RIGHTS FOUNDATION V . PG&E 7â8; Wash. Trout v. McCain Foods, Inc., 45 F.3d 1351, 1354 (9th Cir. 1995). ERFâs notice letters do contain allegations about collected and conveyed runoff, but ERF did not refer âextensivelyâ to those notices and they were not integral to ERFâs complaint. See Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010) (â[T]he mere mention of the existence of a document is insufficient to incorporate the contents of a document.â). In short, ERFâs second amended complaint does not allege that stormwater runoff from the poles is collected in channels and then conveyed to waters of the United States, or that the utility poles discharge directly into waters of the United States. ERF âmay not try to amend [its] complaint through [its] arguments on appeal.â Riggs v. Prober & Raphael, 681 F.3d 1097, 1104 (9th Cir. 2012) (citing Forbush v. J.C. Penney Co., 98 F.3d 817, 822 (5th Cir.1996) (â[T]he Court will not allow a party to raise an issue for the first time on appeal merely because a party believes that he might prevail if given the opportunity to try a case again on a different theory.â (citation omitted))). c. âDischarge associated with industrial activityâ Dismissal of ERFâs CWA claim was proper for another, independent reason. As discussed above, EPA requires NPDES permits for only certain categories of stormwater discharges. The only category ERF argues applies in this case is âdischarge[s] associated with industrial activity.â 33 U.S.C. § 1342(p)(2)(B). We conclude that stormwater runoff from the defendantsâ utility poles is not âassociated with industrial activity,â for at least four reasons. ECOLOGICAL RIGHTS FOUNDATION V . PG&E 19 First, stormwater runoff from the defendantsâ utility poles does not fit within EPAâs definition of âdischarge associated with industrial activity,â which is âthe discharge from any conveyance that is used for collecting and conveying storm water and that is directly related to manufacturing, processing or raw materials storage at an industrial plant. . . .â 40 C.F.R. § 122.26(b)(14). A utility pole is not a âconveyance . . . used for collecting and conveying storm water,â nor is it âdirectly related to manufacturing, processing or raw materials storage at an industrial plant.â Nor is a utility pole a plant yard, access road, prior industrial area, material handling, storage, or treatment site, or any of the other types of industrial facilities specifically identified in 40 C.F.R. § 122.26(b)(14)(i)â(xi). The Supreme Courtâs recent decision in Decker, supra, supports our analysis. There, the Court held that discharges of channeled stormwater runoff from logging roads were not âassociated with industrial activity.â Decker, 2013 WL 1131708, at *10â12. The Court explained that, among other things, EPA âreasonably could concludeâ that § 122.26(b)(14) âextends only to traditional industrial buildings such as factories and associated sites, as well as other relatively fixed facilities,â not to temporary logging roads that lack a âcloser connection to traditional industrial sites.â Id. at *10. Utility poles may or may not be more permanent than logging roads, but, like stormwater runoff from such roads, runoff from utility poles is not ââdirectly related to manufacturing, processing or raw materials storage at an industrial plant.ââ Id. (quoting § 122.26(b)(14)).6 6 It is true that in Decker the Court applied deference under Auer v. Robbins, 519 U.S. 452, 461 (1997), to EPAâs âsilvicultural rule,â whereas here there is no administrative interpretation to defer to. Our reading of 20 ECOLOGICAL RIGHTS FOUNDATION V . PG&E The second reason why stormwater runoff from the defendantsâ utility poles is not âassociated with industrial activityâ has to do with Standard Industrial Classification (âSICâ) codes, the classification system § 122.26(b)(14) uses to define the industrial activities it covers. See 40 C.F.R. § 122.26(b)(14)(ii)â(iii), (vi), (viii), (xi); see also Decker, 2013 WL 1131708, at *5, 9â10. No SIC code cited in § 122.26(b)(14) covers utility poles.7 ERF argues that the regulationâs listing of SIC codes and corresponding facilities is illustrative, not exclusive, but the regulation and our case law suggest otherwise. See 40 C.F.R. § 122.26(b)(14) (âThe following categories of facilities are considered to be engaging in âindustrial activityâ . . . .â); Envtl. Def. Ctr., 344 F.3d at 858 n.37 (âEPA used . . . [SIC] codes in defining the universe of regulated industrial activities.â). Third, EPA included âsteam electric power generating facilitiesâ in the definition of âindustrial activity,â but rejected including âmajor electrical powerline corridorsâ in the regulation. See 40 C.F.R. § 122.26(b)(14)(vii); [NPDES] Application Regulations for Storm Water Discharges, 53 Fed. Reg. 49,416, 49,432 (proposed Dec. 7, 1988) (âEPA prefers § 122.26(b)(14) as applied to ERFâs allegations is the most natural one in the absence of guidance from EPA. 7 The SIC Codes for communication and electrical services are 4813 and 4911, respectively. See U.S. Depât of Labor, Occupational Safety & H e a l t h A d m i n ., S I C D iv i s i o n S t r u c t u r e , a v a il a b l e a t http://www.osha.gov/pls/imis/sic_manual.html (last visited March 27, 2013). These SIC Codes do not appear to be included or implicated in 40 C.F.R. § 122.26(b)(14). In contrast, the SIC codes for facilities that preserve wood (2491) and for construction of power lines (1623) involving greater than five acres are covered by § 122.26(b)(14)(ii) and (x). ECOLOGICAL RIGHTS FOUNDATION V . PG&E 21 that storm water discharges from [major powerline corridors] not be classified as storm water discharges associated with industrial activity, but rather be part of the class of discharges for which storm water permitsâ are required under Phase II); 55 Fed. Reg. at 48,015 (final rule adopting that approach). If EPA has rejected including major powerline corridors in the definition of âindustrial activity,â it is reasonable to conclude that EPA did not intend to include individual residential and commercial wooden utility poles in that definition, either. Fourth, a conclusion that stormwater runoff from the defendantsâ utility poles is a âdischarge associated with industrial activityâ could require EPA or the States to regulate stormwater runoff from many other things. If the defendantsâ utility poles are conveyances that are both âused for collecting and conveying storm waterâ and âdirectly related to manufacturing, processing or raw materials storage areas at an industrial plant,â then arguably so are playground equipment, bike racks, mailboxes, traffic lights, billboards, and street signsâindeed, anything that might contaminate stormwater. Absent guidance from EPA that says otherwise, regulation of stormwater runoff from such commonplace things would seem to run counter to EPAâs measured regulation of stormwater discharges under 33 U.S.C. § 1342(p) and 40 C.F.R. § 122.26(b)(14), and to our practice of reading statutes to âavoid . . . absurd results.â United States v. Tatoyan, 474 F.3d 1174, 1181 (9th Cir. 2007). ERF nonetheless contends that we should read 40 C.F.R. § 122.26(b)(14) âexpansivelyâ to âinclude activities analogous to those listed in the regulation.â For example, ERF analogizes PG&Eâs power grid (including utility poles) to steam electric power generating facilities, and its electricity transmission to natural gas transmission. See 40 C.F.R. 22 ECOLOGICAL RIGHTS FOUNDATION V . PG&E § 122.26(b)(14)(iii), (vii) (identifying steam power plants and certain oil and gas transmission facilities as âassociated with industrial activityâ). However, power plants are plainly âindustrial plants,â id. § 122.26(b)(14), while power grids are not, especially given EPAâs decision to exempt âmajor electrical powerline corridorsâ from stormwater regulation, id. § 122.26(b)(14)(vii). If EPA exempts high voltage transmission lines and associated towers from NPDES permits, it makes even less sense to require them for neighborhood utility poles. As for likening facilities that transmit electricity to those that convey natural gas, § 122.26(b)(14) suggests that it is the substance being transportedâpetroleum productsâthat gives rise to the regulation. See id. § 122.26(b)(14)(iii) (covering only oil and gas âtransmission facilities that discharge storm water contaminated by contact with or that has come into contact with, any overburden, raw material, intermediate products, finished products, byproducts or waste products located on the site of such operationsâ). The same contamination concerns do not apply to electricity transmission. Perhaps recognizing how much it asks us to stretch EPAâs regulation, ERF alternatively contends that we should âfind the regulation invalid as applied toâ the defendantsâ utility poles. Even assuming ERF can bring such a claim in a citizen suit filed under 33 U.S.C. § 1365(a)(1), see Decker, 2013 WL 1131708, *7 (discussing limits imposed by 33 U.S.C. § 1369(b)), ERF offers no reasons to invalidate the regulation beyond those it offers to apply the regulation to the defendantsâ utility poles. As discussed above, those reasons lack merit. Finally, ERF contends that the CWA requires EPA to regulate stormwater runoff from the defendantsâ utility poles ECOLOGICAL RIGHTS FOUNDATION V . PG&E 23 even if it is not a âdischarge associated with industrial activity.â In other words, EPA must require NPDES permits for all stormwater discharges. In support, ERF cites NRDC v. Costle, 568 F.2d 1369, 1374 (D.C. Cir. 1977), in which the D.C. Circuit stated that âCongress intended the NPDES permit to be the only means by which a discharger from a point source may escape the total prohibition of [33 U.S.C. § 1311(a)].â It is impossible, however, to square ERFâs view with the language of the statute, which Congress amended ten years after Costle. Section 301(a) bars the discharge of pollutants â[e]xcept as in compliance with,â among other sections, § 402. Section § 402(p)(2), in turn, identifies specific discharges for regulation in Phase I and then leaves to EPA the task of promulgating Phase II regulations âwhich designate stormwater discharges, other than those discharges described in paragraph (2), to be regulated to protect water quality.â 33 U.S.C. § 1342(p)(2), (6). We have repeatedly explained that this language gives EPA the discretion to decide which additional stormwater discharges to regulate. See Brown, 617 F.3d at 1194; Envtl. Def. Ctr., 344 F.3d at 842â43; Am. Mining Cong. v. U.S. EPA, 965 F.2d 759, 765â66 (9th Cir. 1992); see also Conservation Law Found. v. Hannaford Bros. Co., 327 F. Supp. 2d 325, 330â35 (D. Vt. 2004) (squarely rejecting argument that EPA is required to regulate all stormwater discharges), affâd, 139 Fed. Appx. 338 (2d Cir. 2005). In short, because EPA has chosen not to regulate stormwater runoff from the defendantsâ utility poles, that runoff is in compliance with the CWA, even if it is discharged without an NPDES permit. 24 ECOLOGICAL RIGHTS FOUNDATION V . PG&E 2. RCRA A plaintiff must establish three things in an âimminent and substantial endangermentâ citizen suit under RCRA: (1) the defendant has been or is a generator or transporter of solid or hazardous waste, or is or has been an operator of a solid or hazardous waste treatment, storage or disposal facility; (2) the defendant has âcontributedâ or âis contributing toâ the handling, storage, treatment, transportation, or disposal of solid or hazardous waste; and, (3) the solid or hazardous waste in question may present an imminent and substantial endangerment to health or the environment. 42 U.S.C. § 6972(a)(1)(B); Prisco v. A & D Carting Corp., 168 F.3d 593, 608 (2d Cir. 1999). ERF alleges that an âimminent and substantial endangermentâ is caused by PCP-based wood preservative that âleak[s], spill[s], and drip[s]â from the defendantsâ utility poles, and from â[d]ust impregnated withâ the preservative that âis blown into the air during dry seasons.â Because ERF does not allege that the preservative is âhazardous waste,â the âcrux of the case turns on the issue of whether [that preservative] is âsolid wasteâ within the meaning of RCRA.â Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1041 (9th Cir. 2004). We conclude that it is not. We begin with RCRAâs definition of âsolid waste,â which is âgarbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material . . . resulting from industrial, commercial, mining and agricultural operations, and from community activities . . . .â 42 U.S.C. § 6903(27); see also 42 U.S.C. § 6901(a)(2) (referring to âscrap, discarded, and waste materialsâ). The plain meaning of âdiscardâ is to ââcast ECOLOGICAL RIGHTS FOUNDATION V . PG&E 25 aside; reject; abandon; give up.ââ Safe Air for Everyone, 373 F.3d at 1041 (quoting 1 The New Shorter Oxford English Dictionary 684 (4th ed. 1993)); see also Am. Mining Cong. v. U.S. EPA, 824 F.2d 1177, 1184 (D.C. Cir. 1987) (defining âdiscardedâ as ââdisposed of,â âthrown awayâ or âabandonedââ (citation omitted)). RCRAâs definition of âdisposal,â in turn, is âthe discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water.â 42 U.S.C. § 6903(3). These ambiguous provisions, however, provide little help in deciding whether âsolid wasteâ includes wood preservative that escapes from utility poles. See Conn. Coastal Fishermenâs Assân v. Remington Arms Co., Inc., 989 F.2d 1305, 1308 (2d Cir. 1993) (lamenting that ââsolid wasteâ plainly means one thing in one part of RCRA and something entirely different in another part of the same statuteâ). Because the statute is ambiguous, we look to RCRAâs legislative history. See James v. City of Costa Mesa, 700 F.3d 394, 399 n.8 (9th Cir. 2012). Congress enacted RCRA to âeliminate[ ] the last remaining loophole in environmental lawâ by regulating the âdisposal of discarded materials and hazardous wastes.â H.R. Rep. No. 94-1491(I), at 4 (1976), reprinted in 1976 U.S.C.C.A.N. 6238, 6241. RCRA was specifically designed to address the âwaste disposal problem,â Am. Mining Cong., 824 F.2d at 1186, which was, at base, the high âvolume of waste being generated and the capacity to dispose of that waste in the traditional manner,â H.R. Rep. No. 94-1491(I), at 9. Accordingly, RCRA covers âwaste by-products of the nationâs manufacturing processes,â as well as manufactured products 26 ECOLOGICAL RIGHTS FOUNDATION V . PG&E themselves once they have served their intended purposes and are no longer wanted by the consumer. For these reasons the term discarded materials is used to identify collectively those substances often referred to as industrial, municipal or post-consumer waste; refuse, trash, garbage and sludge. Id. at 2. The key to whether a manufactured product is a âsolid waste,â then, is whether that product âha[s] served [its] intended purpose[ ] and [is] no longer wanted by the consumer.â Id.; see also No Spray Coal., Inc. v. City of New York, 252 F.3d 148, 150 (2d Cir. 2001) (â[M]aterial is not discarded until after it has served its intended purpose.â). In this case, ERF is concerned not with wood preservative that is in or on the defendantsâ utility polesâwhich clearly is being put to its intended use as a general biocideâbut with wood preservative that leaks, spills, or otherwise escapes from the poles. But such escaping preservative is neither a manufacturing waste by-product nor a material that the consumerâin this case, PG&E or Pacific Bellâno longer wants and has disposed of or thrown away. Thus, we conclude that PCP-based wood preservative that escapes from treated utility poles through normal wear and tear, while those poles are in use, is not automatically a RCRA âsolid waste.â8 Our conclusion finds support in the case law, EPAâs treatment of PCP and other materials under RCRA, and 8 W e do not hold that PCP or wood preservative that is released into the environment through normal wear and tear can never be a âsolid wasteâ under RCRA. See infra at 31â32. Our holding in this case turns on the particular allegations in ERFâs complaint. ECOLOGICAL RIGHTS FOUNDATION V . PG&E 27 common sense. First, in No Spray Coalition, supra, the Second Circuit held that âpesticides are not being âdiscardedâ when sprayed into the air with the design of effecting their intended purpose: reaching and killing mosquitoes and their larvae.â 252 F.3d at 150; cf. 40 C.F.R. § 261.2(c)(ii) (providing that certain âcommercial chemical products . . . are not solid wastes if they are applied to the land and that is their ordinary manner of useâ). Like the pesticides in No Spray Coalition, wood preservative that has been applied to utility poles to preserve them is being used for its intended purpose, and is not a RCRA âsolid waste.â ERF, of course, argues that wood preservative that escapes from utility poles is no longer serving its intended use. But the same can be said of airborne pesticide that drifts beyond its intended target after killing insects. Whatever other liability the pesticide sprayer may have in such a circumstance, we would not ordinarily consider the pesticide as having been âdiscarded.â Indeed, like pesticide applied to a field, preservative that falls to the base of a utility pole still serves its intended purpose by inhibiting the growth of vegetation, fungi, and other organisms. Thus, like other nonhazardous materials, wood preservative that is washed or blown away from utility poles by natural means, as an expected consequence of the preservativeâs intended use, has not been âdiscarded.â Second, EPA treats spent munitions under RCRA in the same wayâas not having been âdiscardedâ through their normal use:9 9 EPAâs regulatory definition of âsolid waste,â 40 C.F.R. § 261.2, applies only to âhazardous waste,â a sub-category of âsolid waste,â and thus defines âsolid wasteâ more narrowly than RCRA. See 42 U.S.C. 28 ECOLOGICAL RIGHTS FOUNDATION V . PG&E EPA disagrees . . . that munitions are a âsolid wasteâ when they hit the ground because they have no further function, unlike pesticides, which continue to have a function on the ground. EPAâs interpretation focuses on whether a product was used as it was intended to be used, not on whether the purpose of the product is to perform some function once on the ground. For example, the use of explosives (e.g., dynamite) for road clearing, construction, or mining does not trigger RCRA regulation, even though any residuals on the ground serve no further function. Therefore, the Agency is maintaining its position that munitions that are fired are products used for their intended purpose, even when they hit the ground since hitting the ground is a normal expectation for their use. Military Munitions Rule: Hazardous Waste Identification and Management; Explosives Emergencies; Manifest Exemption § 6903(27); 40 C.F.R. §§ 261.1(b)(1), 261.2(a)(2)(i)(A), (2)(b), 262.3; Military Toxics Project v. EPA, 146 F.3d 948, 951 (D.C. Cir. 1998) (explaining that RCRAâs statutory definition of âsolid wasteâ governs imminent endangerment suits). However, we have previously found EPAâs application of its regulations relevant when construing the statutory definition of âsolid waste.â See Safe Air for Everyone, 373 F.3d at 1046 n.14 (explaining that, in evaluating whether agricultural grass residue was a âsolid wasteâ under RCRA, it was proper to look to cases applying EPAâs regulatory definition, as âchallenges to EPAâs regulation of particular items . . . necessarily address whether those items were within RCRAâs statutory definition of âsolid wasteâ as âdiscarded material,â the same definition at issue hereâ). ECOLOGICAL RIGHTS FOUNDATION V . PG&E 29 for Transport of Hazardous Waste on Right-of-Ways on Contiguous Properties, 62 Fed. Reg. 6,622, 6,630 (Feb. 12, 1997) (codified at 40 C.F.R. § 266.202). Third, in 2008, EPA approved the use of PCP under the Federal Insecticide, Fungicide, and Rodenticide Act (âFIFRAâ), 7 U.S.C. §§ 136â136y, as a wood preservative for utility poles, railroad ties, and pilings. As part of the approval process, EPA studied the available literature regarding PCP, assessed its potential hazards, and solicited public comments. EPA explained that PCP, despite being present in roughly 36 million utility poles across the country, presented no âunreasonable adverse risks to humans or the environment,â with no expected âdietary or drinking water exposures based on the registered use patterns.â It would be odd for EPA to approve PCP-based wood preservative for use in utility poles under FIFRA if the agency believed that preservative put to that use and expectedly released from the poles was a âsolid wasteâ under RCRA. Fourth, under RCRA, EPA does regulate as âhazardousâ (and thus âsolidâ) waste: ⢠âWastesâ from PCP manufacturing processes; ⢠âDiscarded unused formulationsâ containing PCP; ⢠âWastewaters . . . , process residuals, preservative drippage, and spent formulations from wood preserving processes generated at [wood treatment] plants that currently use or have previously usedâ PCP; and 30 ECOLOGICAL RIGHTS FOUNDATION V . PG&E ⢠âBottom sediment sludge from the treatment of wastewaters from wood preserving processes that use creosote and/or [PCP].â 40 C.F.R. § 261.31(a)(Table â F021, F027, F032), 261.32 (Table â K001). However, EPA does not regulate âthose [PCP] formulations which are used,â including â[PCP] which is impregnated in treated wood (e.g., posts, poles, and railroad ties)â and âdirt contaminated with PCP, . . . unless the contamination were the result of a spill of unused PCP.â U.S. EPA, âRegulatory Status of Various Types of Pentachlorophenol Wastes,â RCRA Online No. 11256 (June 19, 1987), available at http://yosemite.epa.gov/osw/rcra.nsf /0c994248c239947e85256d090071175f/b30c860b7bf78f3f 8525670f006bd7ef!OpenDocument (last visited March 27, 2013). We recognize that EPAâs decision not to regulate PCPbased preservative that drips from treated wooden utility poles as âhazardous wasteâ does not by itself mean the substance is not a âsolid wasteâ under RCRA, since EPAâs regulatory definition of âsolid wasteâ is narrower than the statutory definition. See supra at 27â28 n.9. However, in the absence of a more definitive statement from EPA, its treatment of PCP and wood preservatives generally supports our conclusion that PCP-based wood preservative that escapes from utility poles through normal wear and tear, while those poles are in use, is not a RCRA âsolid waste.â Finally, common sense compels what RCRA, the case law, and EPA regulations and guidance imply. As with ERFâs CWA claim, accepting ERFâs characterization of preservative that seeps from wooden utility poles as a RCRA âsolid wasteâ would lead to untenable results. As of 2008, ECOLOGICAL RIGHTS FOUNDATION V . PG&E 31 there were 36 million utility-owned wood poles in service across the United States that have been treated with PCP. It defies reason to suggest that each of those poles, while in use, is producing âsolid wasteâ under RCRA, and thus must be replaced. Indeed, if ERF is correct, everything from wood preservative that leaches from railroad ties to lead paint that naturally chips away from houses10 would be âsolid waste,â and thus potentially actionable under 42 U.S.C. § 6972(a)(1)(B). Absent contrary EPA guidance to which we might defer, the more tenable reading of RCRA is the one we have given it: PCP-based wood preservative that is released into the environment as a natural, expected consequence of its intended useâas a preservative for wooden utility polesâis not automatically âsolid wasteâ under RCRAâs definition of that term. We include the word âautomaticallyâ to reflect what we are not deciding today. Because ERF does not allege that dangerous accumulations of PCP have resulted from the natural discharge of wood preservative from the defendantsâ utility poles, we do not decide whether or under what circumstances PCP, wood preservative, or another material becomes a RCRA âsolid wasteâ when it accumulates in the environment as a natural, expected consequence of the 10 EPA is considering regulating lead-based paint debris under a different statute, but RCRA remains the current management tool. See 40 C.F.R. §§ 257.2, 258.2 (defining âlead-based paint wasteâ); U.S. EPA, Regulatory Status of W aste Generated by Contractors and Residents from Lead-Based Paint Activities Conducted in Households, available at http://www.epa.gov/lead/fslbp.html (Aug. 2000) (last visited March 27, 2013). Notably, EPA regulates lead-based paint waste generated and disposed of during residential construction and refurbishment activities, see id., but not lead-based paint that falls from houses through ordinary wear and tear. 32 ECOLOGICAL RIGHTS FOUNDATION V . PG&E materialâs intended use. See U.S. EPA, Best Management Practices for Lead at Outdoor Shooting Ranges, EPA-902-B-01-001, at I-8 (June 2005) available at http://www.epa.gov/lead/pubs/epa_bmp.pdf (last visited March 27, 2013) (â[S]pent lead shot (or bullets), left in the environment, is subject to the broader definition of solid waste written by Congress.â); Conn. Coastal Fishermenâs Assân, 989 F.2d at 1316 (holding that materials âleft to accumulate long after they ha[d] served their intended purposeââspecifically, five million pounds of lead bullets and 11 million pounds of clay target debris accumulated for nearly 70 years at a firing rangeâmet RCRAâs statutory definition of âsolid wasteâ (quotation marks omitted)); Benjamin v. Douglas Ridge Rifle Club, 673 F. Supp. 2d 1210, 1222 (D. Or. 2009) (reaching same conclusion with respect to lead shot that had accumulated at a firing range since 1955). In this case we decide only that wood preservative that escapes from wooden utility poles as those poles age has not itself been âdiscarded,â and therefore is not a âsolid waste,â under RCRA. B. Dismissal under Rule 12(b)(1) PG&E argues that dismissal of ERFâs complaint was alternatively appropriate because ERFâs allegations are insufficient on their face to invoke federal subject-matter jurisdiction. See Fed. R. Civ. P. 12(b)(1); Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). PG&E argues that ERFâs pre-suit notice letters did not identify the location of each utility pole at issue, and that ERF could not use its January 2010 notice letter to âsupplementâ the claims set forth in ERFâs June 2009 notice letter and first amended complaint. The district court concluded that PG&Eâs ECOLOGICAL RIGHTS FOUNDATION V . PG&E 33 argument lacked merit. See Ecological Rights Found., 803 F. Supp. 2d at 1060â61. We agree. Pursuant to EPA regulations, the CWA requires that a notice shall include sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to have been violated, the activity alleged to constitute a violation, the person or persons responsible for the alleged violation, the location of the alleged violation, the date or dates of such violation, and the full name, address, and telephone number of the person giving notice. 40 C.F.R. § 135.3(a). RCRA imposes almost identical requirements. See id. § 254.3(a). ERFâs notices provided such âsufficient information.â ERFâs June 2009 notice letter stated that it pertains to each and every Pole located in San Francisco, Alameda, Contra Costa, and Marin counties, to the extent the Pole has been treated with the above-referenced oilpentachlorophenol mixture. PG&E maintains an extensive database with information about the treatment method used on every Pole it owns. . . . Given PG&Eâs ownership, control and usage of the Poles, PG&E knows the location of each of these Poles. These Poles include, but are not limited to, the Poles identified in the attached Exhibits A and B. The itemization of Poles in Exhibits A and B 34 ECOLOGICAL RIGHTS FOUNDATION V . PG&E are provided by way of example to illustrate ERFâs concern with the Poles; there are thousands of additional Poles that have been treated with the above-referenced oilpentachlorophenol mixture and to which this Notice pertains. In arguing that ERFâs notices were insufficient, PG&E reads the relevant regulationsâin particular, the requirement that a notice identify âthe location of the alleged violationââtoo literally. We have explained that, as long as a notice letter is reasonably specific as to the nature and time of the alleged violations, the plaintiff has fulfilled the notice requirement. The letter does not need to describe every detail of every violation; it need only provide enough information that the defendant can identify and correct the problem. San Francisco Baykeeper, Inc. v. Tosco Corp., 309 F.3d 1153, 1155 (9th Cir. 2002); see also Cmty. Assân for Restoration of the Envât, 305 F.3d at 951 (âNeither the CWA nor the EPAâs regulations require plaintiffs to provide an exhaustive list of all violations.â). ERFâs notice that preservative-treated utility poles owned by PG&E and/or other entities in four counties allegedly discharged pollutants during days of significant precipitation was sufficient to advise PG&E of ERFâs claims, especially where ERF identified representative poles and referenced PG&Eâs superior ability to ascertain the locations of other pol