and Submitted February 17, 2017 San Francisco, California
from the United States District Court No. 3:10-cv-00121-RS
for the Northern District of California Richard Seeborg,
District Judge, Presiding
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
B. Harvey (argued) and Aaron Avila, Environment & Natural
Resources Division, United States Department of Justice,
Washington, D.C., for Amicus Curiae United States.
Before: Marsha S. Berzon and Richard R. Clifton, Circuit
Judges, and Kimberly J. Mueller, [*] District Judge.
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.
the panel held that plaintiff Ecological Rights Foundation
had organizational standing to sue PG&E regarding its
disposal activities at its Hayward facility.
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 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.
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.
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
BERZON, CIRCUIT JUDGE.
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.
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
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.
The CWA and stormwater discharges
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).
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.
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. §
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. 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).
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.
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
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.
RCRA, citizen suits, and anti-duplication
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 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
H.R. Rep. No. 94-1491, at 4 (1976), reprinted in
1976 U.S.C.C.A.N. 6238, 6241-42.
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."
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). Rather, the endangerment
provision broadly permits relief "that ameliorates
present or obviates the risk of future 'imminent'
harms." Meghrig, 516 U.S. at 486.
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.
the statute's "integration" 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 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
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.
Factual and ...