On November 2, the U.S. Court of Appeals for the Ninth Circuit issued its long-awaited ruling in Ecological Rights Foundation v. Pacific Gas & Electric Company, which clarifies the Resource Conservation and Recovery Act’s (RCRA) Section 1006 anti-duplication provision that can play a key role in RCRA enforcement actions. The Ninth Circuit reversed the District Court’s ruling and remanded the matter to enable 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.”

This is a Citizen Suit, in which the plaintiff alleges that PG&E disperses wood treatment chemicals from 31 facilities located in the San Francisco area into San Francisco and Humboldt Bays “via indirect and indirect stormwater discharges.” More specifically, it was alleged that PG&E used its local service yards to store and handle new and discarded utility poles which have been treated with a wood preservatives that contain chemical impurities known to increase the risk of cancer.

These actions allegedly implicate both the Clean Water Act (CWA) and its stormwater regulations and RCRA, which governs the management and regulation of solid waste. Pursuant to the Citizen Suit provisions of both the CWA and RCRA, the plaintiff seeks to limit or halt these stormwater discharges because they may present an imminent and substantial endangerment to health or the environment.

The District Court held that the CWA is not applicable since the Environmental Protection Agency (EPA) has not promulgated any stormwater regulations pertinent to PG&E’s stormwater management operations. With respect to the RCRA claims, the District Court determined that the lawsuit should be dismissed because RCRA Section 1006 (the anti-duplication provision) bars any legal action that is based on an activity or operation that is subject to control under the CWA.

The Ninth Circuit held that the Ecological Rights Foundation had standing to bring this lawsuit, and agreed with the District Court that the plaintiff could not pursue a Citizen Suit under the CWA because no stormwater rules had been promulgated that could trigger a CWA Citizen Suit. On the other hand, the Ninth Circuit held that, properly construed, RCRA’s anti-duplication bar does not come into play because any proceedings under RCRA Section 1006 would not conflict with any CWA enforcement policy or prerogatives.

In the words of the Ninth Circuit

“because the CWA and its implementing regulations do not require PG&E to obtain a permit for its groundwater discharges, there is no CWA-grounded requirement here imposed, and so none can be inconsistent with the RCRA citizen suit provision.”

The District Court’s ruling was reversed and the matter was remanded for further proceedings. In closing, the Ninth Circuit noted that the District Court will now be asked to decide whether the wood and oil wastes at the PG&E facilities were RCRA solid wastes, and if so, whether their handling by PG&E created an imminent and substantial endangerment to health or the environment.