Ecological Rights Foundation v. PG&E, No. 15-15424 (9th Cir. 2017)
Annotate this CaseThe Ninth Circuit reversed the district court's grant of summary judgment to PG&E and denial of summary judgment to EcoRights with respect to a stormwater pathway. The panel held that the district court erred in applying the antiduplication provision of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 1006(a), with respect to the stormwater pathway; the absence of a Clean Water Act (CWA), 33 U.S.C. 1251 et seq., permit requirement did not trigger RCRA's anti-duplication provision; and PG&E failed to identify any legal requirements under municipal permits applicable to it and inconsistent with EcoRights' requested RCRA relief. The panel remanded for the district court to consider EcoRights' arguments with respect to the stormwater pathway that the relevant wastes were "solid wastes" and that PG&E's actions presented an imminent and substantial endangerment to health or the environment under RCRA. Finally, the panel affirmed the district court's grant of partial summary judgment as to the tire-tracking pathway.
Court Description: Environmental Law. The panel affirmed in part and reversed in part the district court’s summary judgment in favor of the Pacific Gas & Electric Company in a citizen suit brought under the Resource Conservation and Recovery Act, seeking to limit PG&E’s indirect and direct stormwater discharges of wood treatment chemicals from various of its facilities into San Francisco and Humboldt Bays. First, the panel held that plaintiff Ecological Rights Foundation had organizational standing to sue PG&E regarding its disposal activities at its Hayward facility. Reversing in part, the panel held that RCRA’s anti- duplication provision, 42 U.S.C. § 6905(a), did not preclude RCRA’s application to the stormwater discharges at issue. The Clean Water Act allows but does not require the Environmental Protection Agency to require National Pollution Discharge Elimination permits before such discharges are allowed; EPA has decided not to require permits. The panel held that the language of the anti- duplication provision, its context, and persuasive authorities interpreting the provision required a determination of whether the CWA actually imposed any specific statutory requirements on PG&E’s stormwater discharges, and, if so, whether those requirements were inconsistent with any possible remedy under EcoRights’ RCRA suit. The panel ECOLOGICAL RIGHTS FOUND. V. PG&E 3 held that, because the CWA and its implementing regulations did not require PG&E to obtain a permit for its stormwater discharges, there was no CWA-grounded requirement here imposed, and so none could be inconsistent with the RCRA citizen suit section. The panel further held that PG&E’s stormwater discharges were not subject to CWA requirements via the municipal storm sewer system permits required of and held by local government agencies. The panel affirmed the district court’s grant of summary judgment in favor of PG&E on EcoRights’ RCRA claim regarding pollutants dispersed by tracking on vehicle tires. The panel remanded for the district court to consider EcoRights’ arguments with respect to the stormwater pathway that the relevant wastes are “solid wastes” and that PG&E’s actions present an imminent and substantial endangerment to health or the environment under RCRA.
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