Ecological Rights Foundation v. PG&E

Under the Clean Water Act, a complaint must allege that the source of pollution stems from a point source or industrial activity, and under the Resource Conservation and Recovery Act, a complaint must allege that the pollutant is statutorily defined hazardous or solid waste.

The Environmental Rights Foundation ("ERF") brought suit against The Pacific Gas & Electric ("PG&E") and Pacific Bell Telephone Company (“Pacific Bell”) alleging that utility poles owned and operated by PG&E and Pacific Bell discharged chemicals through stormwater runoff into water sources in violation of the Clean Water Act ("CWA") and the Resource Conservation and Recovery Act ("RCRA"). Reviewing de novo, the Ninth Circuit affirmed the lower court’s dismissal because of failure to state a claim under the CWA and the RCRA. The panel decided that the CWA complaint failed because under the statute, the alleged pollutants must originate from a point source or must originate from an industrial activity. A point source is a deliberate channeling of water, whereas a nonpoint source is stormwater that is allowed to runoff naturally. The panel disagreed with the ERF's characterization of utility poles as point sources. Furthermore, the panel disagreed that the utility poles were an industrial activity because utility poles are not covered under the Standardized Industrial Classification, and industrial activity within the statutory definition refers to conveyances used for discharging water. The panel also decided that the RCRA complaint failed because the alleged chemical toxin leeched from the utility poles was not a solid waste. In order to state a claim under the RCRA, the plaintiff must show that the defendant generates or transports hazardous waste, is contributing to the storage or transfer of solid or hazardous waste, and that the waste will cause imminent harm to the environment. The complaint did not allege that the waste was hazardous, and the panel decided that stormwater runoff potentially containing leeched chemicals could not fit under the statutory definition of solid waste. AFFIRMED.