Ecological Rights Foundation v. Pg&e , 874 F.3d 1083 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ECOLOGICAL RIGHTS No. 15-15424
FOUNDATION,
Plaintiff-Appellant, D.C. No.
3:10-cv-00121-RS
v.
PACIFIC GAS & ELECTRIC OPINION
COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, District Judge, Presiding
Argued and Submitted February 17, 2017
San Francisco, California
Filed November 2, 2017
Before: Marsha S. Berzon and Richard R. Clifton, Circuit
Judges, and Kimberly J. Mueller,* District Judge.
Opinion by Judge Berzon
*
The Honorable Kimberly J. Mueller, United States District Judge for
the Eastern District of California, sitting by designation.
2 ECOLOGICAL RIGHTS FOUND. V. PG&E
SUMMARY**
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
**
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 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.
COUNSEL
Jason R. Flanders (argued), Aqua Terra Aeris Law Group,
Oakland, California; Christopher Sproul, Environmental
Advocates, San Francisco, California; for Plaintiff-Appellant.
Bradley Rochlen (argued), J. Michael Showalter, and Russell
B. Selman, Schiff Hardin LLP, Chicago, Illinois, for
Defendant-Appellee.
Judy B. Harvey (argued) and Aaron Avila, Environment &
Natural Resources Division, United States Department of
Justice, Washington, D.C., for Amicus Curiae United States.
4 ECOLOGICAL RIGHTS FOUND. V. PG&E
OPINION
BERZON, Circuit Judge:
According to the complaint in this case, the Pacific Gas
& Electric Company (PG&E) disperses wood treatment
chemicals from various of its facilities into San Francisco and
Humboldt Bays via indirect and direct stormwater discharges.
The Clean Water Act (“CWA”), 33 U.S.C. §§ 1251 et seq.,
allows but does not require the federal Environmental
Protection Agency (“EPA”) to require permits before such
discharges are allowed; EPA has decided not to require
permits.
Our principal question is whether the citizen suit
provision of a different statute, the Resource Conservation
and Recovery Act (“RCRA”), 42 U.S.C. §§ 6901 et seq., may
be applied to limit such discharges, or whether RCRA’s “anti-
duplication” provision, 42 U.S.C. § 6905(a), precludes
RCRA’s application because of EPA’s unexercised authority
to regulate the discharges. The district court determined that
RCRA’s anti-duplication provision does preclude that
statute’s application to the stormwater discharges here at
issue. We do not agree.
I. Statutory Background
At the heart of this case is the overlap between two
statutory schemes, the Resource Conservation and Recovery
Act and the Clean Water Act. We begin by outlining the
statutes and identifying the provisions most relevant here.
ECOLOGICAL RIGHTS FOUND. V. PG&E 5
A. The CWA and stormwater discharges
The Clean Water Act, enacted in 1972 as an amendment
to the Federal Water Pollution Control Act, was designed “to
restore and maintain the chemical, physical, and biological
integrity of the Nation’s waters.” 33 U.S.C. § 1251(a); see
Federal Water Pollution Control Act Amendments of 1972,
Pub. L. No. 92-500, 86 Stat. 816. The CWA generally
prohibits the unregulated “discharge of any pollutant” from
any “point sources” into the navigable waters of the United
States, although such discharges are allowed if made in
compliance with a CWA permit program. 33 U.S.C.
§ 1311(a), (e).
The principal permitting program, the National Pollution
Discharge Elimination System (“NPDES”), is defined in
CWA section 402, 33 U.S.C. § 1342. EPA or EPA-
authorized states, including California, issue and enforce
permits under the program. See 33 U.S.C. § 1342(b); Nat.
Res. Def. Council, Inc. v. Cty. of Los Angeles, 725 F.3d 1194,
1198 (9th Cir. 2013). California has authorized regional
water boards to act as NPDES permitting authorities. Id. at
1198–99.
After the CWA’s passage in 1972, EPA categorically
exempted stormwater from NPDES permit regulations. In
1977, however, the D.C. Circuit held that categorical
exemption invalid. NRDC v. Costle, 568 F.2d 1369, 1377
(D.C. Cir. 1977). Ten years after Costle, Congress amended
the CWA to address the NPDES permitting of stormwater
discharges. See Water Quality Act of 1987, Pub. L. No. 100-
4 § 405, 101 Stat. 7 , 69–71 (codified at 33 U.S.C. § 1342(p)).
6 ECOLOGICAL RIGHTS FOUND. V. PG&E
Specifically, the 1987 Act established a moratorium on
NPDES permit requirements for most types of stormwater
discharges. 33 U.S.C. § 1342(p)(1), (p)(2); see Decker v. Nw.
Envtl. Def. Ctr., 568 U.S. 597, 603 (2013). Exempted from
this moratorium were discharges from industrial activity,
large and medium-sized municipal storm sewer systems, and
sources previously subject to permits.1 33 U.S.C.
§ 1342(p)(2)(A)–(D). The Act also directed EPA to develop
and implement permit procedures for exempted discharges.
33 U.S.C. § 1342(p)(3), (p)(4). EPA’s regulations under that
directive became known as “Phase I Regulations.” See, e.g.,
Envtl. Def. Ctr., Inc. v. U.S. EPA, 344 F.3d 832, 842 (9th Cir.
2003).
The 1987 Act also identified the next phase of stormwater
requirements, which became known as “Phase II.” See id. at
840. During that phase, EPA was required to “designate
stormwater discharges . . . to be regulated” and then to
“establish a comprehensive program to regulate such
designated sources.” 33 U.S.C. § 1342(p)(6). EPA was
directed to, “at a minimum, (A) establish priorities,
(B) establish requirements for State stormwater management
programs, and (C) establish expeditious deadlines.” Id. The
Act authorized EPA to implement this program by setting
“performance standards, guidelines, guidance, and
management practices and treatment requirements,” id., and,
as needed, by imposing permit requirements, Envr. Def. Ctr.,
344 F.3d at 844.
1
Additionally, EPA was authorized to require permits on a case-by-
case basis for any source it determined to be a “contribut[or] to a violation
of a water quality standard or . . . a significant contributor of pollutants to
waters of the United States.” 33 U.S.C. § 1342(p)(2)(E).
ECOLOGICAL RIGHTS FOUND. V. PG&E 7
EPA promulgated its “Phase II Regulations” in 1999. See
National Pollutant Discharge Elimination System—
Regulations for Revision of the Water Pollution Control
Program Addressing Storm Water Discharges, 64 Fed. Reg.
68,722 (Dec. 8, 1999) (“Phase II Regulations”). In those
regulations, EPA designated only two categories of
stormwater discharges as coming within its Phase II-required
permitting program: discharges from small municipal sewer
systems and discharges associated with small construction
activity. Id.PG&E’s stormwater discharges do not fall into either
Phase II-regulated category. It is also common ground for
purposes of this appeal that the Phase I Regulations—and all
other relevant provisions in the CWA—do not require PG&E
to get a permit for its stormwater discharges. See n. 6, infra.
The upshot is that no CWA-grounded permit requirement
applies to PG&E’s stormwater discharges.
B. RCRA, citizen suits, and anti-duplication
RCRA has a different focus than the CWA. RCRA “is a
comprehensive environmental statute that governs the
treatment, storage, and disposal of solid and hazardous
waste.” Meghrig v. KFC W., Inc., 516 U.S. 479, 483 (1996).
Enacted in 1976, RCRA aimed to
eliminate[] the last remaining loophole in
environmental law, that of unregulated land
disposal of discarded materials and hazardous
wastes. . . . [T]he [relevant] Committee
believe[d] that [RCRA was] necessary if other
environmental laws [were] to be both cost and
environmentally effective. . . . [T]he federal
8 ECOLOGICAL RIGHTS FOUND. V. PG&E
government [was] spending billions of dollars
to remove pollutants from the air and water,
only to dispose of such pollutants on the land
in an environmentally unsound manner . . . .
often result[ing] in air pollution, subsurface
leachate and surface run-off, which affect air
and water quality. [RCRA aimed to]
eliminate this problem and permit the
environmental laws to function in a
coordinated and effective way.
H.R. Rep. No. 94-1491, at 4 (1976), reprinted in 1976
U.S.C.C.A.N. 6238, 6241–42.
As here relevant, RCRA provides for private enforcement
via citizen suit. It allows, first, for private actions against
entities “alleged to be in violation of any permit, standard,
regulation, condition, requirement, prohibition, or order
which has become effective pursuant to [RCRA].” 42 U.S.C.
§ 6972(a)(1)(A). It also creates a private cause of action
against a 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.” 42 U.S.C.
§ 6972(a)(1)(B). We refer to the latter RCRA section in this
opinion as the “endangerment provision.”
The endangerment provision does not require a private
plaintiff to show that the defendant’s actions violated any
specific RCRA requirement or any RCRA-mandated order or
permit. See Goldfarb v. Mayor & City Council of Baltimore,
791 F.3d 500, 505 (4th Cir. 2015); see also AM Int’l, Inc. v.
Datacard Corp., DBS, 106 F.3d 1342, 1349 (7th Cir. 1997).
ECOLOGICAL RIGHTS FOUND. V. PG&E 9
Rather, the endangerment provision broadly permits relief
“that ameliorates present or obviates the risk of future
‘imminent’ harms.” Meghrig, 516 U.S. at 486.
Notwithstanding RCRA’s overarching goals and its
expansive citizen suit provisions, RCRA does not supersede
conflicting requirements established under other
environmental statutes, including the CWA. Toward that
end, RCRA section 1006 contains two provisions addressing
the potential duplicative regulation that might otherwise
result from RCRA’s application alongside substantively
overlapping environmental statutes.
First, the statute’s “integration”2 provision, RCRA
section 1006(b)(1), requires:
The [EPA] Administrator shall integrate all
provisions of this chapter for purposes of
administration and enforcement and shall
avoid duplication, to the maximum extent
practicable, with the appropriate provisions of
the Clean Air Act, the Federal Water
Pollution Control Act [i.e., CWA], the Federal
Insecticide, Fungicide, and Rodenticide Act,
the Safe Drinking Water Act, the Marine
Protection, Research and Sanctuaries Act of
1972, and such other Acts of Congress as
2
Although both RCRA section 1006 provisions, together, have
sometimes been called RCRA’s “anti-duplication provisions,” see, e.g.,
S.F. Herring Ass’n v. Pac. Gas & Elec. Co., 81 F. Supp. 3d 847, 865
(N.D. Cal. 2015), we differentiate between the distinct provisions by
referring only to section 1006(a) as RCRA’s “anti-duplication provision”
and by using a separate moniker, “integration provision,” for RCRA
section 1006(b)(1).
10 ECOLOGICAL RIGHTS FOUND. V. PG&E
grant regulatory authority to the
Administrator. Such integration shall be
effected only to the extent that it can be done
in a manner consistent with the goals and
policies expressed in this chapter and in the
other acts referred to in this subsection.
42 U.S.C. § 6905(b)(1) (emphasis added) (internal citations
omitted).
Second, the statute’s “anti-duplication” provision, RCRA
section 1006(a), states:
Nothing in this chapter shall be construed to
apply to . . . any activity or substance which is
subject to the Federal Water Pollution
Control Act [i.e., CWA], the Safe Drinking
Water Act, the Marine Protection, Research
and Sanctuaries Act of 1972, or the Atomic
Energy Act of 1954 except to the extent that
such application (or regulation) is not
inconsistent with the requirements of such
Acts.
42 U.S.C. § 6905(a) (emphasis added) (internal citations
omitted). The RCRA anti-duplication section is the statutory
focus of this appeal.
II. Factual and Procedural Background
A. Pleadings and Fact Discovery
Ecological Rights Foundation (“EcoRights”) filed suit
against PG&E under the citizen suit provisions of both the
ECOLOGICAL RIGHTS FOUND. V. PG&E 11
CWA and RCRA. See 33 U.S.C. § 1365(a); 42 U.S.C.
§ 6972(a)(1)(B). In its operative complaint, EcoRights
alleged that PG&E violated the CWA and RCRA by
discarding toxic wood treatment chemicals at thirty-one of its
Northern California corporation yards and service centers.
Those facilities “provide service and maintenance on
[PG&E’s] electric and gas distribution system.” According
to the complaint, PG&E uses the service yards to store and
handle new, used, and discarded wooden utility poles that
have been treated with a wood preservative called
pentachloraphenol (“PCP”). PCP contains dioxins, chemical
impurities known to increase cancer risk and cause “adverse
non-cancer effects in animals and humans,” including
reproductive harms.
Drilling, cutting, moving, and storing the treated wood,
EcoRights alleged, leads to the spread of chemically treated
sawdust and woodchips on the PG&E facilities’ grounds.
Additionally, at some service facilities, PG&E treats new
poles with PCP-infused oils and then cleans or stores the
newly treated poles in a manner that allows excess oil to drip
to the pavement. EcoRights further identified several
methods of dispersal, or “pathways,” by which PG&E
allowed or encouraged the PCP-infused waste to migrate
from its facilities into San Francisco and Humboldt Bays
(“the Bays”).
EcoRights claimed that PG&E’s activities violated (1) the
CWA, by discharging pollution into the waters of the United
States without a permit, and (2) RCRA, by contributing to the
handling, storage, or disposal of solid waste disposal which
may present an imminent and substantial endangerment to
health and the environment in and around the Bays.
EcoRights’ RCRA claim rests on the allegation that PG&E’s
12 ECOLOGICAL RIGHTS FOUND. V. PG&E
stormwater conveyance systems or vehicle tires carried the
PCP-infused waste offsite, with the result that the waste
ended up in the Bays.
The district court confined initial fact discovery to four of
the thirty-one Northen California facilities listed in
EcoRights’ complaint. The parties accordingly proceeded
with discovery only as to one PG&E facility in Oakland, one
in Hayward, and two in Eureka.
B. Summary Judgment Orders
After discovery concerning the four facilities, the parties
filed cross-motions for partial summary judgment as to
EcoRights’ standing. EcoRights’ RCRA claim was founded
on PG&E’s “on-site waste disposal practices [that] present an
imminent and substantial endangerment to health or the
environment with respect to . . . San Francisco and Humboldt
Bays.” Members of EcoRights filed declarations attesting
that their aesthetic and recreational enjoyment of the Bays
had been and would continue to be impaired by pollution
traceable to PG&E discharges. Based on the member
declarations, the district court concluded that EcoRights had
organizational standing to pursue the RCRA claim.
The parties next filed cross-motions for summary
judgment on EcoRights’ claim that stormwater discharges
from the facilities violated the CWA. Citizen suits against
private parties under the CWA are authorized only for alleged
violations of an effluent standard or limitation imposed under
the statute—here, an alleged failure to obtain required
NPDES permits. See 33 U.S.C. § 1365(a). The district court
held that, under EPA’s Phase I Regulations addressing
industrial activity, 40 C.F.R. § 122.26(b)(14), PG&E was not
ECOLOGICAL RIGHTS FOUND. V. PG&E 13
required to obtain NPDES permits for stormwater discharges
from the four facilities. The district court therefore granted
PG&E’s motion for summary judgment on the CWA claim.
Cross-motions for summary judgment on the RCRA
claim followed. The district court held “[t]he basic facts
regarding PG&E’s handling of utility poles at its facilities . . .
largely undisputed, at least for the purposes of [the]
motion[s].” The undisputed evidence, the district court held,
indicated that (1) PCP-laden oils drip off of new poles that
are stored outdoors on uncovered racks; (2) used poles are
sometimes cut into smaller pieces at the facilities, leaving
PCP-treated sawdust on the ground; and (3) all retired,
chopped-up poles are supposed to be stored in watertight
waste bins, but such PCP-treated waste products are
sometimes left directly on the ground. In sum, the district
court concluded, PCP oils and PCP-treated wood waste end
up on the ground at the PG&E facilities.
The district court divided its analysis of the RCRA claim
into two parts, based on the two different “pathways” by
which PCP-infused wastes allegedly travel offsite and into the
Bays. The district court held, first, that the tire-tracking
theory failed because EcoRights had not “come forward with
actual evidence, as opposed to speculation,” regarding vehicle
tracking at PG&E sites. Second, the district court concluded
that EcoRights’ stormwater-based pathway failed because
“there is no question that stormwater discharged from point
sources like the PG&E facilities is subject to regulation under
the Clean Water Act,” and it interpreted RCRA’s anti-
duplication provision to prevent the creation under RCRA of
“an additional avenue to impose a different regulatory
requirement.” These holdings applied only to the four
facilities for which discovery had occurred, but the district
14 ECOLOGICAL RIGHTS FOUND. V. PG&E
court noted that “the conclusions presumptively apply equally
to the remaining sites.” In so disposing of the case, the
district court did not decide whether the PCP-infused
materials were “solid wastes” within the meaning of RCRA,
or whether PG&E’s handling or disposal of the materials may
present an “imminent and substantial endangerment to health
or the human environment.”
C. Appeal
EcoRights appeals the grant of summary judgment to
PG&E on the RCRA claim only. Its primary assertion is that
the district court erroneously interpreted RCRA’s anti-
duplication provision, RCRA section 1006(a). See 42 U.S.C.
6905(a). EcoRights also appeals the denial of its motion for
summary judgment on the RCRA claim with respect to both
the stormwater and tire-tracking pathways.
EPA filed a brief as amicus curiae and appeared at
argument in support of EcoRights. EPA maintains that
PG&E did not identify an actual inconsistency between the
CWA and RCRA, and that the district court therefore erred in
holding that RCRA’s anti-duplication provision restricted the
reach of EcoRights’ citizen suit under RCRA.
In its answering brief, PG&E disagrees with EcoRights
and EPA as to the impact of the RCRA anti-duplication
provision. PG&E also renews, with respect to the Hayward
facility only, its argument that EcoRights lacks organizational
standing to sue.
ECOLOGICAL RIGHTS FOUND. V. PG&E 15
III. Standing
We consider first whether EcoRights has standing to sue
PG&E regarding PG&E’s disposal activities at its Hayward
facility. It does.3
To have organizational standing, at least one EcoRights
member must “have standing to sue in [his] own right.”
Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141,
1147 (9th Cir. 2000); see also Warth v. Seldin, 422 U.S. 490,
511 (1975). Thus, EcoRights must show that (1) a member
“has suffered an ‘injury in fact’ that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the
challenged action of the defendant; and (3) it is likely, as
opposed to merely speculative, that the injury will be
redressed by a favorable decision.” Friends of the Earth, Inc.
v. Laidlaw Envtl. Servs., TOC, Inc., 528 U.S. 167, 180–81
(2000) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555,
560–51 (1992)); see also Spokeo, Inc. v. Robins, 136 S.Ct.
1540, 1547–50 (2016).
3
PG&E did not need to file a cross-appeal to raise this standing
argument. Where an appellee properly raised an argument in the district
court and raises it on appeal in an effort “seek[ing] to preserve, and not to
change, the judgment,” it need not file a cross-appeal. See Lee v.
Burlington N. Santa Fe Ry. Co., 245 F.3d 1102, 1107 (9th Cir. 2001)
(internal quotation marks and citations omitted). PG&E properly raised
its standing argument in the district court. Its reiterated argument on
appeal, if meritorious, would support the district court’s judgment as to the
Hayward facility. There is no persuasive basis for distinguishing this type
of partial support for the judgment from the general rule regarding when
cross-appeals are necessary. We therefore apply the rule stated in Lee.
16 ECOLOGICAL RIGHTS FOUND. V. PG&E
PG&E maintains that EcoRights failed to demonstrate
that any of its members suffered an injury in fact with respect
to the Hayward facility. Not so.
EcoRights presented declarations from several of its
members alleging particularized harms resulting from
pollution in the San Francisco Bay. In these declarations,
some EcoRights members reported they “avoid” local
seafood “due to . . . concerns about pollution in San Francisco
Bay.” A member identified “activities, such as wading or
swimming in the Bay, that I will not do because I am
concerned about being exposed to the pollutants in the Bay,”
another expressed similar concerns about “risk to [her]
daughter’s health in regularly swimming in San Francisco
Bay given the presence of pollutants.” One member noted
that alleged pollution in the Bay “decreases my enjoyment of
sailing in San Francisco Bay and my enjoyment of viewing
birds and other wildlife in the San Francisco Bay,” and other
bird- and wildlife-watching members agreed. One member,
summarizing her concerns, stated that despite “gain[ing]
significant personal feelings of well-being, including
relaxation and spiritual enrichment from time spen[t] in
unspoiled natural environments,” her “enjoyment of the Bay
and its tributaries has been substantially diminished by . . .
increasing knowledge of how polluted the Bay is, including
from storm water runoff pollution.”
PG&E maintains that these injury allegations are too
generalized, as such injuries may be shared by millions of
people who live in or travel to the San Francisco Bay Area.
That contention falls short.
“[T]he fact that a harm is widely shared does not
necessarily render it a generalized grievance.” Novak v.
ECOLOGICAL RIGHTS FOUND. V. PG&E 17
United States, 795 F.3d 1012, 1018 (9th Cir. 2015) (internal
citations and quotation marks omitted). Rather, a grievance
too “generalized” for standing purposes is one characterized
by its “abstract and indefinite nature—for example, harm to
the common concern for obedience to law.” Id. (internal
citation and quotation marks omitted). Here, several
EcoRights members have attested to concrete and
particularized harm to their own “recreational, aesthetic, and
spiritual” uses and enjoyment of “the waters of San Francisco
Bay adjacent to Alameda County and Central San Francisco
Bay.” That alleged injury is neither abstract nor indefinite, so
the generalized grievance bar does not apply.
PG&E also proposes that for the alleged injury to be
“credible,” EcoRights’ members must demonstrate that their
uses or enjoyment of San Francisco Bay are near PG&E’s
facilities. That contention too misses the mark.
“The ‘injury in fact’ requirement in environmental cases
is satisfied if an individual adequately shows that she has an
aesthetic or recreational interest in a particular place, or
animal, or plant species and that that interest is impaired by
a defendant’s conduct.” Pac. Lumber Co., 230 F.3d at 1147.
A proximity concern arises only where “a plaintiff claiming
injury from environmental damage [fails to demonstrate] use
[of] the area affected by the challenged activity,” and instead
only shows that she uses “an area roughly ‘in the vicinity’ of
it.” Lujan, 504 U.S. at 565–66 (citation omitted) (emphasis
added). Whether the members use an area near the source of
environmental damage elsewhere is of no moment.
Here, EcoRights’ RCRA suit is based on alleged
endangerment to San Francisco Bay as a whole posed by
PG&E’s onsite waste disposal practices at its facilities. So it
18 ECOLOGICAL RIGHTS FOUND. V. PG&E
suffices for EcoRights to demonstrate concrete and
particularized injuries to its members’ aesthetic and
recreational enjoyment of San Francisco Bay as a whole.
At bottom, PG&E’s arguments appear to challenge as
implausible the notion that polluted stormwater from the
Hayward facility could possibly have an environmental
impact on a body of water as large as San Francisco Bay.
“Requiring the plaintiff to show actual environmental harm
as a condition for standing,” however, “confuses the
jurisdictional inquiry (does the court have power under
Article III to hear the case?) with the merits inquiry (did the
defendant violate the law?).” Pac. Lumber Co., 230 F.3d at
1151.
Moreover, “[t]he ‘injury in fact’ requirement in
environmental cases is not . . . reducible to inflexible,
judicially mandated time or distance guidelines. . . .” Id. at
1148. For instance, in Laidlaw, a Sierra Club member who
“claimed only that he ‘had canoed’ on the river some
40 miles downstream from the incinerator” afforded the
Sierra Club standing to bring a CWA action against the
incinerator’s owner. Pac. Lumber Co., 230 F.3d at 1149
(citing Laidlaw, 528 U.S. at 183).
By attesting to their reduced ability to enjoy eating local
seafood in Bay Area restaurants, observing birds and other
wildlife from the air or from the wetlands around Oakland
Airport, or sailing and swimming safely in San Francisco
Bay, among other harms, EcoRights members have alleged
concrete and particularized injuries from the alleged
migration of PCP and dioxins from PG&E’s Hayward facility
to the affected area, San Francisco Bay. Whether that inflow
of pollutants from PG&E’s Hayward facility is actually
ECOLOGICAL RIGHTS FOUND. V. PG&E 19
significant enough to harm the affected area is a merits
question, not a standing question.
IV. Stormwater Pathway
We turn now to the core of this appeal—whether PG&E
was entitled to summary judgment with respect to EcoRights’
stormwater RCRA claim in light of RCRA’s anti-duplication
provision. The district court reasoned that stormwater
discharge into navigable waters is “subject to [the CWA]”
under RCRA’s anti-duplication provision, 42 U.S.C.
§ 6905(a), in the sense that EPA could require NPDES
permits for the types of stormwater discharges like those
challenged here, although it has not.
The anti-duplication provision in RCRA section 1006(a)
does not reach so far. The language, context, and persuasive
authorities interpreting that provision, we conclude, require
us to determine whether the CWA actually imposes any
specific statutory “requirements” on PG&E’s stormwater
discharges, and, if so, whether those “requirements” are
“inconsistent” with any possible remedy under EcoRights’
RCRA citizen suit. 42 U.S.C. § 6905(a). That inquiry
reveals that, because the CWA and its implementing
regulations do not require PG&E to obtain a permit for its
stormwater discharges, there is no CWA-grounded
requirement here imposed, and so none can be inconsistent
with the RCRA citizen suit section.
A. Insufficiency of Potential Regulation As a Trigger of
RCRA’s Anti-Duplication Provision
To construe RCRA’s anti-duplication provision, we first
consider whether its meaning is clear. See Avila v. Spokane
20 ECOLOGICAL RIGHTS FOUND. V. PG&E
Sch. Dist. 81, 852 F.3d 936, 941 (9th Cir. 2017). “The
plainness or ambiguity of statutory language is determined by
reference to the language itself, the specific context in which
the language is used, and the broader context of the statute as
a whole.” Geo–Energy Partners–1983 Ltd. v. Salazar,
613 F.3d 946, 956 (9th Cir. 2010) (internal quotation marks
and citation omitted).
1. Text of RCRA’s Anti-Duplication Provision
RCRA’s anti-duplication provision, section 1006(a),
initially curtails RCRA’s application with respect to “any
activity or substance which is subject to” the CWA, the Safe
Drinking Water Act, the Atomic Energy Act, and the Marine
Protection, Research and Sanctuaries Act. 42 U.S.C.
§ 6905(a). The provision then goes on to carve out a
substantial exception: RCRA can overlap with the four named
statutes to the extent that its application is “not inconsistent
with the requirements” of those other statutes. See id.“[I]nconsistent” is not defined in section 1006(a) or
anywhere else in RCRA. See Goldfarb, 791 F.3d at 509–10.
After consulting the dictionary definition of the term, the
Fourth Circuit concluded that the “CWA must require
something fundamentally at odds with what RCRA would
otherwise require” to be “inconsistent” for the purposes of
RCRA’s anti-duplication provision. Id. at 510 (citations
omitted). We agree. According to the dictionary definition
of “inconsistent,” the application of RCRA must be
“incompatible, incongruous, [or] inharmonious” with CWA
requirements for the anti-duplication provision to apply.
Webster’s Third New Int’l Dictionary (1971) at 1144; accord
Webster’s Third New Int’l Dictionary (2002) at 1144. Put
another way, section 1006(a) does not bar RCRA’s
ECOLOGICAL RIGHTS FOUND. V. PG&E 21
application unless requirements under RCRA and the CWA
are “[m]utually repugnant or contradictory,” such that the
application of “one implies the abrogation or abandonment of
the other.” Black’s Law Dictionary 907 (4th ed. rev. 1968);
see also Black’s Law Dictionary (10th ed. rev. 2014)
(defining “inconsistent” as “[l]acking agreement among parts;
not compatible with another fact or claim”).
The anti-duplication provision also does not provide a
definition of the term “requirements.” But the reference to
the “requirements” of certain statutes must refer to legal
requirements. A legal requirement is “a rule of law that must
be obeyed,” Gorman v. Wolpoff & Abramson, LLP, 584 F.3d
1147, 1171 (9th Cir. 2009) (quoting Bates v. Dow
Agrosciences LLC, 544 U.S. 431, 445 (2005)) (internal
quotation marks omitted)—in other words, “[s]omething that
must be done because of a law or rule; something legally
imposed, called for, or demanded.” Black’s Law Dictionary
(10th ed. 2014); see also Black’s Law Dictionary 1468 (4th
ed. rev. 1968) (defining “require” as “[t]o direct, order,
demand, instruct, command, claim, compel, request, need,
exact”).
Taking the terms together, then, RCRA’s anti-duplication
provision does not bar RCRA’s application unless that
application contradicts a specific mandate imposed under the
CWA (or another statute listed in RCRA section 1006(a)).
2. Context of RCRA’s Anti-Duplication Provision
The pertinent contexts—RCRA section 1006 as a whole
and RCRA’s overall statutory scheme—support this reading.
Two provisions in RCRA are meaningful only if the CWA’s
22 ECOLOGICAL RIGHTS FOUND. V. PG&E
potential application to a waste product does not, on its own,
bar RCRA’s application.
First, the CWA and two other statutes listed in RCRA
section 1006(a) are also listed in RCRA section 1006(b)(1),
RCRA’s “integration” provision.4 See 42 U.S.C.
§ 6905(b)(1). This provision requires EPA to administer
RCRA in a coordinated manner, “avoid[ing] duplication, to
the maximum extent practicable, with the appropriate
provisions” of the CWA, the Safe Drinking Water Act, the
Marine Protection, Research and Sanctuaries Act of 1972,
and other environmental statutes. Id. But the provision
directs EPA to integrate application or enforcement of the
various statutes only when doing so is “consistent with the
goals and policies expressed” in RCRA and the other
environmental statutes. Id.By including the CWA in the integration provision,
Congress recognized that there would be overlapping
coverage between the CWA and RCRA, the anti-duplication
provision notwithstanding. This understanding of RCRA’s
4
The integration provision directs the EPA to administer and enforce
RCRA provisions in a manner that “integrate[s]” them and “avoid[s]
duplication, to the maximum extent practicable, with the appropriate
provisions of [the CWA]” and other EPA-enabling statutes. 42 U.S.C.
§ 6905(b)(1). The provision has no direct application here, as it addresses
the EPA Administrator and concerns the EPA’s internal management of
its various statutory mandates. See id. In an endangerment citizen suit
such as this one, no violation of a RCRA permit, regulation, or other EPA-
administered requirement need be alleged. See 42 U.S.C. § 6972(a)(1)(B);
Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502, 514 (9th
Cir. 2013) (“ERF I”) (summarizing the components of an endangerment
suit). EPA’s administration and enforcement of its various statutory
mandates are thus not directly pertinent. Instead, RCRA section
1006(b)(1) is relevant only for statutory context.
ECOLOGICAL RIGHTS FOUND. V. PG&E 23
integration provision is hard to reconcile with PG&E’s
proposed interpretation of the anti-duplication provision. If
RCRA’s application were prohibited as to all matters
potentially regulable under the CWA, as PG&E supposes, the
integration clause in RCRA section 1009(b)(1) would serve
little purpose.
Second, PG&E’s interpretation would also render
meaningless specific exclusions from RCRA coverage.
RCRA extends only to “solid wastes.” 42 U.S.C. § 6903(27);
see also 42 U.S.C. § 6903(5) (defining hazardous waste as a
type of solid waste); Meghrig, 516 U.S. at 483. The statute’s
definition of “solid wastes” specifically excludes “industrial
discharges which are point sources subject to permits under
[CWA section 402] or source, special nuclear, or byproduct
material as defined by the Atomic Energy Act of 1954. . . .”
42 U.S.C. § 6903(27) (emphasis added). If any potential
regulation of any substance under the CWA or the Atomic
Energy Act were enough to trigger the RCRA anti-
duplication provision and so bar RCRA coverage, RCRA’s
narrower exclusion of certain substances actually “subject to
permits under” the CWA and the Atomic Energy Act would
be superfluous. Id.
3. Persuasive Authorities
In line with our analysis of the statute’s language and
context, most other courts have applied RCRA’s anti-
duplication provision only where there is an inconsistency
with specific mandates, such as permit requirements and
consent orders, imposed under a listed statute. See Edison
Elec. Inst. v. U.S. EPA, 996 F.2d 326, 337 (D.C. Cir. 1993);
S.F. Herring Ass’n v. Pac. Gas & Elec. Co., 81 F. Supp. 3d
847, 866 (N.D. Cal. 2015); Cmty. Ass’n for Restoration of the
24 ECOLOGICAL RIGHTS FOUND. V. PG&E
Env’t, Inc. v. George & Margaret LLC, 954 F. Supp. 2d 1151,
1160 (E.D. Wash. 2013); Raritan Baykeeper, Inc. v. NL
Indus., Inc., No. 09-cv-4117, 2013 WL 103880, at *27
(D.N.J. Jan. 8, 2013) (unpublished).
Similarly, courts generally have held that there is no
“inherent inconsistency of applying RCRA to activities
already regulated by [one of the statutes listed in RCRA
section 1006(a)].” Vernon Vill., Inc. v. Gottier, 755 F. Supp.
1142, 1154 (D. Conn. 1990) (emphasis omitted). For
example, in Edison Electric Institute, the D.C. Circuit
rejected the defendant’s “generalized claim that the Agency’s
interpretation [which applied RCRA to “impose additional
burdens on nuclear power generators”] interferes with the
‘primary purpose’ of the AEA.” 996 F.2d at 337 (citations
omitted).
Additionally, in 1984, the Department of Justice’s
(“DOJ”) Office of Legal Counsel (“OLC”) determined that
RCRA’s anti-duplication provision does not come into play
simply because there are “overlapping regulatory schemes.”
See Application of the Res. Conservation and Recovery Act to
the Dep’t of Energy’s Atomic Energy Act Facilities, 8 Op.
O.L.C. 6, 11, 13, 1984 WL 178349 (1984) (“OLC Opinion”).
The OLC Opinion was issued to address a disagreement
between EPA and the Department of Energy concerning
whether waste treatment and disposal activities at the
Department of Energy’s nuclear facilities were subject to
RCRA regulation. Id. at 6. The OLC sided with EPA,
concluding that the “requirements” language of RCRA
section 1006(a) “implies some prescriptive content, i.e.,
specific directives that require an agency or a person to take
or refrain from taking certain actions, to follow certain
procedures, or to meet certain standards and regulations.” Id.ECOLOGICAL RIGHTS FOUND. V. PG&E 25
at 16. And, said OLC, section 1006(a)’s “not inconsistent”
language requires determining whether there is a conflict
“between individual regulations or requirements imposed by”
the statutes listed in section 1006(a) and the would-be
requirements imposed under RCRA. Id. at 11, 13, 16. Under
the OLC interpretation—as under ours—the potential for
inconsistent overlap is insufficient; only an actual, and
actually inconsistent, requirement triggers the RCRA anti-
duplication provision.5
These persuasive authorities support our reading of the
text of RCRA section 1006(a) and its statutory context.
RCRA’s anti-duplication provision does not bar RCRA’s
application unless the specific application would conflict with
identifiable legal requirements promulgated under the CWA
or another listed statute.
5
DOJ, not EPA, issued the OLC Opinion. As that opinion is not an
agency interpretation of its own enabling statute, we do not afford it
Chevron deference. See Ass’n of Civilian Technicians, Silver Barons
Chapter v. Fed. Labor Relations Auth., 200 F.3d 590, 592 (9th Cir. 2000).
And, under Auer v. Robbins, while “we defer to an agency’s interpretation
of its own regulation, advanced in a legal brief, unless that interpretation
is ‘plainly erroneous or inconsistent with the regulation,’” “no deference
[is] warranted to an agency interpretation of what [are], in fact, Congress’
words.” Chase Bank USA, N.A. v. McCoy, 562 U.S. 195, 208, 210 (2011)
(citing Gonzales v. Orgeon, 546 U.S. 243, 257 (2006)). It is thus not
enough to trigger Auer deference that DOJ, acting as counsel for EPA in
its amicus appearance in this case, favorably cites the OLC Opinion. And
we are not aware of any EPA regulations, rulings, or specific
administrative practices that rely on the OLC’s 1984 interpretation. We
therefore treat the OLC Opinion similarly to the persuasive authority
provided in decisions from other courts—that is, as some corroboration
that our own reasoning is sound. Cf. Andersen v. DHL Ret. Pension Plan,
766 F.3d 1205, 1213 (9th Cir. 2014) (relying on a government amicus
brief’s position as “reasonable and persuasive” even though not entitled
to deference).
26 ECOLOGICAL RIGHTS FOUND. V. PG&E
B. Application of RCRA’s Anti-Duplication Provision
Here
We next consider whether PG&E has identified such legal
requirements.
What CWA legal requirements might apply here? PG&E
has not identified any CWA permits that establish particular
requirements for its stormwater discharges. That gap is not
an oversight. The Clean Water Act does not require PG&E
to get a permit for these discharges.6 And, although the CWA
provides EPA authority to require such permits under its
Phase II authority, the Agency, following the protocol set out
by Congress for making decisions, see 33 U.S.C. § 1342, has
decided not to require such permits.
Given these circumstances, PG&E’s argument centers on
EPA’s decision not to impose a Phase II CWA permit
requirement on discharges like its own. That decision, PG&E
maintains, bars any application of RCRA, including the
RCRA endangerment provision. We cannot agree.
CWA section 402(p)(6) directed EPA to establish a
“comprehensive program” for Phase II-covered stormwater
6
The district court’s determination that PG&E’s stormwater
discharges do not fall within the ambit of EPA’s regulations of industrial
sources (so-called Phase I regulations) has not been appealed. We
therefore assume it correct for purposes of this case. See, e.g., Wagner v.
Prof’l Eng’s in Cal. Gov’t, 354 F.3d 1036, 1040–41 (9th Cir. 2004)
(assuming the district court’s unappealed merits determination was correct
and proceeding to the remaining remedies question on appeal).
ECOLOGICAL RIGHTS FOUND. V. PG&E 27
discharges 33 U.S.C. § 1342(p)(6).7 But the reach of that
“comprehensive program” was limited to the discharges EPA
“designate[s] . . . to be regulated.” Id. The CWA instructs
EPA to “establish priorities” for implementing the
comprehensive program. Id. The statute thus authorizes EPA
to develop a stormwater discharge regulatory program by
regulating Phase II-covered stormwater sources in stages,
relegating some sources to a lower regulatory “priorit[y],”
and leaving some un-“designated” altogether. Id.; see Envtl.
Def. Ctr., 344 F.3d at 875. Under such an incremental
regulatory structure, EPA’s decision not to impose a permit
requirement on stormwater discharges like PG&E’s is not a
“rule of law that must be obeyed,” Gorman, 584 F.3d at 1171(internal quotation marks and citation omitted). It is, instead,
a decision to impose no such “rule of law,” id., even though
EPA is empowered to do so. There is no “mutual[]
repugnan[cy]” between the current absence of a permit
requirement and compliance with RCRA as enforced through
a citizen suit. Black’s Law Dictionary 907 (4th ed. rev.
1968).
7
CWA section 402(p)(6) provides in full: “Not later than October 1,
1993, the Administrator, in consultation with State and local officials,
shall issue regulations (based on the results of the studies conducted under
paragraph (5) [of CWA section 402(p)]) which designate stormwater
discharges, other than those discharges described in paragraph (2) [of
CWA section 402(p)], to be regulated to protect water quality and shall
establish a comprehensive program to regulate such designated sources.
The program shall, at a minimum, (A) establish priorities, (B) establish
requirements for State stormwater management programs, and
(C) establish expeditious deadlines. The program may include
performance standards, guidelines, guidance, and management practices
and treatment requirements, as appropriate.” 33 U.S.C. § 1342(p)(6).
28 ECOLOGICAL RIGHTS FOUND. V. PG&E
Notably, the Phase II Regulations indicate that EPA
considered RCRA’s application to stormwater discharges
while deciding the types of stormwater given priority for
designation. The agency decided to exclude at least some
discharges from its Phase II Regulations because RCRA and
other statutes would still apply to those discharges.
In EPA’s final Phase II Regulations, the Agency
designated two types of stormwater discharges as subject to
permits: discharges from small municipal sewer systems and
discharges associated with small construction activity. See
Phase II Regulations, 64 Fed. Reg. at 68,722. In the lead up
to those regulations, EPA considered whether it should also
designate other types of industrial and commercial sources as
requiring permits. Because the Phase I Regulations classified
“industrial sources” based on standardized industry
classifications, EPA first considered the industrial sources
with environmental impacts most similar to the sources
regulated under Phase I. See id. at 68,779–80.
The agency determined that many of these “unregulated”
industrial and commercial sources had “a high likelihood of
exposure of pollutants.” Id. at 68,780. Nevertheless,
EPA assessed the likelihood that pollutant
sources are regulated in a comprehensive
fashion under other environmental protection
programs, such as programs under the
Resource Conservation and Recovery Act
(RCRA) or the Occupational Health and
Safety Act (OSHA). If EPA concluded that
the category of sources was sufficiently
addressed under another program, the Agency
ECOLOGICAL RIGHTS FOUND. V. PG&E 29
rated that source category as having “low”
potential for adverse water quality impact.
Id. Ultimately, EPA did
not designate any additional industrial or
commercial category of sources [in its Phase
II Regulation,] either because EPA currently
lack[ed] information indicating a consistent
potential for adverse water quality impact or
because of EPA’s belief that the likelihood of
adverse impacts on water quality is low, with
some possible exceptions on a more local
basis.
Id.8
The Phase II Regulations’ preamble further underscores
that the Regulations addressed undesignated sources only to
the extent that they “encourage[d] control of storm water
discharges from [undesignated industrial and commercial
sources] through self-initiated, voluntary [best management
practices], unless the discharge (or category of discharges) is
designated for permitting by the permitting authority.” Id. A
policy of encouraging voluntary practices imposes no legal
requirement. See Gorman, 584 F.3d at 1171.
In sum, neither CWA section 402(p)(6) nor the Phase II
Regulations promulgated under it impose any legal
8
EPA, appearing in this case as amicus curiae, relies on this
rulemaking history in support of its position that RCRA can and does
apply to point-source industrial stormwater discharges not subject to CWA
permit requirements under the Phase II Regulations.
30 ECOLOGICAL RIGHTS FOUND. V. PG&E
requirement on undesignated sources of stormwater
discharges. Instead, the Regulations rest in part on the
assumption that RCRA and other statutes would still apply to
undesignated sources. As there is no requirement, there can
be no inconsistent requirement barring RCRA’s application.
C. Municipal Permits
Our principal question answered, we proceed to the
remaining issues on appeal. We consider PG&E’s alternative
anti-duplication contention—that its stormwater discharges
are subject to CWA requirements via the municipal storm
sewer system permits required of and held by local
government agencies—and conclude it fares no better than
the broader position we have rejected.9
As a preliminary matter, EcoRights points to evidence
that at least some PG&E discharges at its Oakland facility do
not flow through municipal storm sewer systems at all.
According to EcoRights’ expert, the facility’s drainage map
indicates two points at which its stormwater discharges enter
navigable waters, including one point that “discharges
directly into San Leandro Bay.” PG&E’s Environmental
Operations Supervisor for the Oakland facility similarly
testified that the facility’s storm drain “feeds directly into the
bay.” This evidence indicates that any potential requirements
9
In its answering brief, PG&E makes this municipal permit argument
only obliquely. Although we consider the argument on the merits, we
note PG&E came close to waiving it through inadequate briefing. See
Greenwood v. F.A.A., 28 F.3d 971, 977 (9th Cir. 1994) (holding that “[w]e
review only issues which are argued specifically and distinctly in a party’s
. . . brief,” and finding the plaintiff’s broad challenge to a provision of the
Federal Aviation Act “waived due to his failure to present a specific,
cogent argument for our consideration”).
ECOLOGICAL RIGHTS FOUND. V. PG&E 31
under Oakland’s storm water permit are not relevant to
RCRA’s application to the Oakland facility.
In any event, although the permits and ordinances to
which PG&E alludes are judicially noticeable public records,
see Fed. R. Evid. 201(b), PG&E has not in its briefs presented
any specific factual or legal argument concerning
requirements—consistent or inconsistent with
RCRA—imposed on it under those permits and ordinances.
We “will not do an [appellee’s] work for it, either by
manufacturing its legal arguments, or by combing the record
on its behalf for factual support.” W. Radio Servs. Co. v.
Qwest Corp., 678 F.3d 970, 979 (9th Cir. 2012) (citations
omitted).
PG&E highlights a few requirements that the San
Francisco Bay Region Municipal Regional Stormwater
Permit imposes on the cities of Oakland and Hayward as
permittees. Under the regional permit, PG&E states, the
cities must “implement an industrial and commercial site
control program” and develop “an Enforcement Response
Plan (ERP) to prevent discharge of pollutants and impact on
beneficial uses of receiving waters.” PG&E also points to a
Eureka ordinance enacted as part of that city’s compliance
with California’s general NPDES permit for small municipal
storm systems; that ordinance prohibits “illicit connections”
and “establishes requirements for reducing pollutants in storm
water.”
At this level of generality, such requirements are not
inconsistent with the injunctive relief EcoRights seeks under
RCRA against PG&E. Nor is it obvious how some of these
NPDES requirements for municipalities would be relevant to
a private party’s—here, PG&E’s—legal responsibilities. As
32 ECOLOGICAL RIGHTS FOUND. V. PG&E
PG&E has not pointed to any specific stormwater discharge
requirement with which it must comply imposed by or
pursuant to any CWA municipal storm system permits, it was
not entitled to summary judgment on the basis of those
permits.
V. Tire Tracking Pathway
Finally, we address the district court’s conclusion that
EcoRights “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 [PCP]
dispersed from the corporation and service yards by tracking
on vehicle tires,” as there was “no evidence of actual
transmission of the pollutants from PG&E’s facilities to
municipal stormwater systems via the . . . tire tracking
[pathway], much less of resulting Bay pollution at a level
sufficient to support a RCRA claim.” We agree with this
assessment of the summary judgment record.
In a RCRA endangerment citizen suit like this one, the
plaintiff must show: [1] the defendant is “any past or present
generator, past or present transporter, or past or present owner
or operator of a treatment, storage, or disposal facility,
[2] who has contributed or who is contributing to the past or
present handling, storage, treatment, transportation, or
disposal of any solid or hazardous waste [3] which may
present an imminent and substantial endangerment to health
or the environment.” 42 U.S.C. § 6972(a)(1)(B); see also
ERF I, 713 F.3d at 514. Whether PG&E allowed PCP-
infused wastes to travel offsite via vehicle tires implicates the
second prong of EcoRights’ RCRA substantial endangerment
claim—i.e., whether PG&E contributed to the handling or
ECOLOGICAL RIGHTS FOUND. V. PG&E 33
transporting of PCP-infused waste through attachment to
vehicle tires.
The second endangerment prong requires the plaintiff to
show “that a defendant be actively involved in or have some
degree of control over the waste disposal process.” Hinds
Invs., L.P. v. Angioli, 654 F.3d 846, 851 (9th Cir. 2011). So
EcoRights had to present evidence showing that PG&E is
involved in or has control over the actual waste disposal
activities challenged as imminently dangerous. Only at the
third prong, with regard to the likely health or environmental
impact of those activities, does a risk-based
showing—whether the activities “may present an imminent
and substantial endangerment to health or the
environment”—suffice. 42 U.S.C. § 6972(a)(1)(B) (emphasis
added).
Viewing the facts in the light most favorable to
EcoRights, there is no evidence that PG&E trucks actually
picked up contaminants on their tires and carried them offsite.
EcoRights’ expert witness on the matter testified only that
tire-tracking “could be a concern,” based on his “experience
at other facilities where tracking is an issue.” Those other
sites, which were undergoing cleanup processes for dioxin
contamination, had controls in place to reduce tire-tracking.
Such controls included rumble strips—to vibrate off
accumulated materials as trucks pass over them—and wheel
washing. The EcoRights expert witnessed no rumble strips
or wheel washing while onsite at the PG&E facilities.
Moreover, although company policy recommends wheel-
washing as a best practice, PG&E employees admitted that
the practice is rarely implemented.
34 ECOLOGICAL RIGHTS FOUND. V. PG&E
But EcoRights’ expert did not observe any trucks driving
through areas where there may have been contaminants. Nor
did he witness any tire track-marks that indicated the spread
of contaminated soils or water. Finally, EcoRights’ expert
did not sample for contamination the areas where trucks were
likely to pass. Moreover, he provided no standard for the
level of contamination necessary to require tire-tracking
controls.
Given these investigatory gaps and the “could have”
language used by its expert, we conclude that EcoRights’
evidence identified tire-tracking only as a potential
mechanism by which PG&E might have contributed to the
transportation and dispersal of PCP-infused wastes. That
showing does not establish that PG&E actually contributed to
the handling, transportation, or disposal of solid waste via
vehicle tire-tracking. Summary judgment for PG&E was
warranted as to that aspect of EcoRights’ RCRA claim.
VI. EcoRights’ Motion for Summary Judgment
The district court did not decide whether the PCP-infused
wood or oil wastes at PG&E sites were “solid wastes” subject
to RCRA. It also did not determine whether PG&E’s present
or past handling, storage, treatment, transportation, or
disposal of those wastes, overall, creates an imminent and
substantial endangerment to health or the environment
because of its impact on the Bays.10 Because the district court
did not reach these merits-related questions, we remand so
10
In particular, the district court did not address the admissibility or
persuasiveness of expert evidence concerning PCP-contamination levels
at PG&E’s sites.
ECOLOGICAL RIGHTS FOUND. V. PG&E 35
that they may be considered. See Voggenthaler v. Maryland
Square LLC, 724 F.3d 1050, 1066 (9th Cir. 2013).
VII. Conclusion
The district court erred in applying RCRA’s anti-
duplication provision, RCRA section 1006(a), with respect to
the stormwater pathway. The absence of a CWA permit
requirement does not trigger RCRA’s anti-duplication
provision. Further, PG&E has failed to identify any legal
requirements under municipal permits applicable to it and
inconsistent with EcoRights’ requested RCRA relief. We
therefore reverse the district court’s grant of summary
judgment to PG&E and denial of summary judgment to
EcoRights with respect to the stormwater pathway. We
remand 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. Finally, we affirm the
district court’s grant of partial summary judgment as to the
tire-tracking pathway.
AFFIRMED IN PART, REVERSED IN PART, and
REMANDED.