Ecological Rights Foundation v. Pacificorp

1

2

3

4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6

7 ECOLOGICAL RIGHTS FOUNDATION, Case No. 23-cv-05179-JST

8 Plaintiff,

ORDER DENYING MOTION TO

9 v. DISMISS

10 PACIFICORP, et al., Re: ECF No. 32

Defendants.

11

12

13 Before the Court is Defendants PacifiCorp and Pacific Power’s (together “PacifiCorp”)

14 motion to dismiss Plaintiff Ecological Rights Foundation’s (“EcoRights”) first amended complaint

15 (“FAC”). ECF No. 32. The Court will deny the motion.

16 I. BACKGROUND

17 A. Factual Background1

18 EcoRights is a “non-profit public benefit corporation focused on protecting surface waters

19 and groundwater from pollution and degradation.” ECF No. 23 ¶ 16. PacifiCorp “is an electrical

20 utility corporation that supplies electricity to parts of Northern California, Oregon, and

21 Washington.” Id. ¶ 18. “To maintain its electrical distribution system, PacifiCorp operates and

22 maintains numerous corporation yards and service centers throughout its territory” which includes

23 a facility at 1054 Northcrest Drive, Crescent City, California 95531 (the “Crescent City Facility”

24 or “Facility”). Id. ¶¶ 2, 77.

25

26

27

1 The facts are taken from the First Amended Complaint except where otherwise stated. See AE ex

rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631, 636 (9th Cir. 2012) (“[W]e accept the factual

1 1. Crescent City Facility

2 The Crescent City Facility “serves as a staging ground for the construction, operation, and

3 maintenance of PacifiCorp’s electric transmission and distribution systems.” Id. ¶ 95. PacifiCorp

4 stores “new, freshly treated utility poles, used treated utility poles or cross-arms (collectively,

5 ‘Poles’) and treated wood waste (‘TWW2’)” at the Crescent City Facility. Id. ¶ 2. The Poles and

6 TWW are treated with “wood preservative formulations, including the pesticide

7 pentachlorophenol, chromium, arsenic, copper naphthenate, and/or 4,5-Dichloro-2-n-octyl-3(2H)-

8 isothiazolone (collectively ‘Wood Treatment Mixtures’).” Id. PacifiCorp stores the Poles and

9 TWW uncovered in outdoor areas. Id. ¶ 95. The Facility includes a transportation terminal and

10 vehicle fueling area where PacifiCorp conducts vehicle maintenance and servicing on light duty

11 and heavy-duty cars, trucks, and cranes. Id. ¶ 97. Pollution from this activity includes “gasoline,

12 diesel fuel, anti-freeze, battery fluids, and hydraulic fluids.” Id. Finally, EcoRights alleges that

13 PacifiCorp stores various construction materials and equipment (including electric transmission

14 and distribution system components) uncovered in outdoor areas. Id. ¶ 98. PacifiCorp has not

15 applied for an individual National Pollutant Discharge Elimination System (“NPDES”) permit for

16 the Crescent City Facility. Id. ¶ 171.

17 2. Alleged Clean Water Act and Resource Conservation and Recovery Act

Violations

18

EcoRights asserts two claims: (1) violations of the Clean Water Act (“CWA”), 33 U.S.C.

19

§§ 1251–1387 and (2) violations of the Resource Conservation and Recovery Act (“RCRA”), 42

20

U.S.C. §§ 6901–6992.

21

First, because the Poles and TWW are stored outdoors in uncovered areas, EcoRights

22

alleges that Wood Treatment Mixtures and associated chemicals (collectively “Wood Treatment

23

Waste”) drip off the Poles and TWW and are collected by storm water at the Crescent City

24

Facility. ECF No. 23 ¶ 100. Similarly, pollutants are also collected from the transportation

25

26

2 “TWW means any wood items or fragments thereof that have been treated with any of the Wood

27 Treatment Mixtures but that are not complete Poles and/or cross-arms destined for service, which

includes, but is not limited to, out of service utility poles, used utility pole segments, out of service

1 terminal and the uncovered storage of construction materials. Id. ¶¶ 95–97, 102. Thereafter,

2 EcoRights alleges that the storm water collects in, and moves through “culverts, storm water

3 collection vaults, ditches, gutters, and other conveyances and surface channels at, and adjacent to

4 the Crescent City Facility; drop inlets that connect with underground storm sewer pipes . . . and

5 other conveyances,” and ultimately “into waters of the United States, including but not limited to,

6 Elk Creek in Crescent City, California and its estuary and tributaries; the Elk Creek Wetlands

7 Wildlife Area; Crescent City Harbor; and the Pacific Ocean in and around Crescent City Harbor.”

8 Id. ¶¶ 100, 103. EcoRights argues that the Facility’s stormwater discharges violate the CWA. Id.

9 ¶¶ 169–179.

10 Second, EcoRights alleges that PacifiCorp’s use, storage, and movement of the Poles

11 and/or TWW “causes the Wood Treatment Wastes to infiltrate into and contaminates soils and

12 groundwater.” Id. ¶ 48. In addition to stormwater discharge, EcoRights alleges that the Wood

13 Treatment Wastes are also discharged from the Crescent City Facility by “tracking from vehicles

14 and/or foot traffic and/or by wind, leaf blower, sweeping, power washing, and/or other natural or

15 artificial processes.” Id. ¶¶ 48, 61. EcoRights claims that the Wood Treatment Wastes present an

16 imminent and substantial endangerment to the health of communities and the environment in

17 violation of RCRA. Id. ¶ 49. EcoRights alleges that its members use and enjoy the waters,

18 wildlife, and other natural resources that are adversely impacted and endangered by PacifiCorp’s

19 contaminated discharges. Id. ¶ 17.

20 B. Procedural Background

21 On June 7, 2023, EcoRights served a citizen suit notice letter (“Notice Letter”) on

22 PacifiCorp regarding alleged violations of RCRA and the CWA at the Crescent City Facility,

23 stating EcoRights’ intention to file suit against PacifiCorp. ECF No. 23 ¶ 10; see also 33 U.S.C. §

24 1365(b); 40 C.F.R. § 135.2; 42 U.S.C. § 6972(b). Thereafter, EcoRights filed its complaint on

25 October 11, 2023. ECF No. 1. PacifiCorp filed a motion to dismiss on November 17, 2023. ECF

26 No. 17. EcoRights filed its FAC as a matter of right on November 29, 2023. ECF No. 23.

27 PacifiCorp then filed the instant motion to dismiss EcoRights’ FAC. ECF No. 32. The Court

1 Court allowed, the filing of a joint supplemental brief on June 12, 2024. ECF Nos. 74, 75.

2 PacifiCorp challenges the sufficiency of EcoRights’ CWA and RCRA claims. PacifiCorp

3 also argues that EcoRights waived the right to bring RCRA claims.

4 II. JURISDICTION

5 The Court has jurisdiction under 28 U.S.C. § 1331.

6 III. REQUEST FOR JUDICIAL NOTICE

7 The Court first addresses the parties’ requests for judicial notice. PacifiCorp requests

8 judicial notice of several documents3 in support of its motion to dismiss and its reply. ECF No. 32

9 at 9–10; ECF No. 47; see also Fed. R. Evid. 201(b). EcoRights opposes the request for judicial

10 notice for Exhibits E and F (the site plan and the list of PacifiCorp’s power generation and

11 transmission facilities) because the documents are “subject to reasonable dispute” since the “facts

12 asserted therein are neither ‘generally known’ . . . nor “can [they] be accurately and readily

13 determined from sources whose accuracy cannot reasonably be questioned.” ECF No. 40 at 2

14 (citing Fed. R. Evid. 201(b)). EcoRights also opposes the inclusion of Exhibits G through L, filed

15 in support of PacifiCorp’s reply, ECF Nos. 46-1 to 46-6, because allowing PacifiCorp to introduce

16

17 3 Exhibit B: The California State Water Resources Control Board’s (“Board”) IGP Fact Sheet,

ECF No. 17-2 at 8; Exhibit C: The Board’s April 1, 2014, Order establishing its Industrial Storm

18 Water General Permit Program, and Attachment A to that Order, ECF No. 18-1 at 4; Exhibit D:

The Introduction to the Occupational and Safety Health Administration’s 1987 Standard Industrial

19 Classification (“SIC”) Manual, ECF No. 18-1 at 82; Exhibit E: A site plan of the Crescent City

Facility, showing the location of various activities and storage areas at the Facility, ECF No. 18-1

20

at 92; Exhibit F: A list of all PacifiCorp’s power generation and transmission facilities located

21 near Crescent City California, as identified by the Board, ECF No. 18-1 at 94; Exhibit G: A

service copy of the EcoRights’ CWA and RCRA Notice Letter to PacifiCorp including the post-

22 mark and receipt information, ECF No. 46-1; Exhibit H: California State Water Resources Board’s

National Pollution Discharge Elimination System (NPDES) General Permit for Storm Water

23 Discharges From Small Municipal Separate Storm Sewer Systems, ECF No. 46-2; Exhibit I:

Crescent City Municipal Code § 12.36.120 and § 12.36.280, ECF No. 46-3; Exhibit J: A

24

screenshot of the State Water Board’s website for its industrial storm water regulatory program,

25 which can be accessed at the following website:

https://waterboards.ca.gov/water_issues/programs/stormwater/industrial.html, ECF No. 46-4;

26 Exhibit K: A screenshot of the website describing SIC Code 4231 from

https://www.naics.com/sic-industry-description/?code=4231, ECF No. 46-5; Exhibit L: A

27

screenshot of the website describing SIC Code 1442 from https://www.naics.com/sic-industry-

1 these documents denies EcoRights a “fair opportunity to address or otherwise respond to the new

2 evidence.” ECF No. 52 at 2.

3 Separately, in support of its opposition to PacifiCorp’s motion to dismiss, EcoRights

4 attaches the declaration of Stuart Wilcox (“Wilcox Declaration”) and several exhibits. ECF Nos.

5 39-2 to 39-7.4 PacifiCorp objects to the Wilcox Declaration and the supporting exhibits. ECF No.

6 49. The exhibits are not accompanied by a request for judicial notice.

7 “Generally, district courts may not consider material outside the pleadings when assessing

8 the sufficiency of a complaint under Rule 12(b)(6).” Khoja v. Orexigen Therapeutics, Inc., 899

9 F.3d 988, 998 (9th Cir. 2018). An exception allows a court to consider “matters of public record

10 without converting a motion to dismiss into a motion for summary judgment.” Id. at 999. But a

11 court cannot take notice of disputed facts contained in such public records. Id. (citing Fed. R.

12 Evid. 201(b)). “Courts routinely take judicial notice of letters published by the government . . . as

13 well as records and reports of administrative bodies.” Smith v. L.A. Unified Sch. Dist., 830 F.3d

14 843, 851 n.10 (9th Cir. 2016) (citations and internal quotation marks omitted).

15 The Court declines to take judicial notice of PacifiCorp’s Exhibits E, F, G, I, J, K, and L

16 because it finds the documents unnecessary to resolve the instant motion. Cal. Sportfishing

17 Protection All. v. Shiloh Grp., LLC, 268 F. Supp. 3d 1029, 1039 (N.D. Cal. 2017) (denying request

18 for judicial notice of documents the court did not consider in deciding the motion). Despite

19

4 Exhibit 1: Proof of Service, ECF No. 39-2; Exhibit 2: L.A. Unified Sch. Dist. v. S&W Atlas Iron

20

& Metal Co., No. 20-cv-5330, Dkt. 48 (motion to dismiss) (C.D. Cal. August 19, 2020), ECF No.

21 39-3; Exhibit 3: second amended complaint filed in LA Waterkeeper v. SSA Terminals, LLC, No.

22-01198, Dkt. 93-1 (C.D. Cal. Dec. 15, 2023), ECF No. 39-4; Exhibit 4: Attachment C, Glossary,

22 to the State Water Resources Control Board’s “National Pollution Discharge Elimination System

(NPDES) General Permit for Storm Water Discharges Associated with Industrial Activities,”

23 Order NPDES No. CAS000001, Order No. 2014-0057-DWQ, As Amended by Order No. WQ

2015-0122-DWQ & Order No. WQ 2018-0028-DWQ. Available online at:

24

https://www.waterboards.ca.gov/board_decisions/adopted_orders/water_quality/2018/wqo2018-

25 0028-dwq.pdf, ECF No. 39-5; Exhibit 5: State Water Resources Control Board in Ecological

Rights Foundation, et al., v. Hot Line Construction, Inc., et al., 20-1108, ECF No. 39-6; Exhibit 6:

26 Excerpt of a June 12, 2014 Memorandum drafted by the U.S. Environmental Protection Agency

entitled “Ninth Circuit Court of Appeals Decision in Ecological Rights Foundation v. Pacific Gas

27 and Electric Company Regarding the RCRA Definition of Solid Waste.” Available online at:

1 EcoRights’ initial objection to Exhibit H, it ultimately used and addressed this document in its sur-

2 reply. ECF No. 59 at 3. Accordingly, the Court takes judicial notice of Exhibit H. The Court also

3 grants PacifiCorp’s request for judicial notice of the remaining documents as public records but

4 limits the judicially noticed fact in each instance to the existence of the document, not the truth of

5 the matters asserted in the documents. Cal. Sportfishing Protection All., 268 F. Supp. 3d at 1038.

6 The Court has not considered the exhibits to the Wilcox Declaration because they are not properly

7 before the Court.

8 IV. LEGAL STANDARD5

9 To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a

10 complaint must contain “a short and plain statement of the claim showing that the pleader is

11 entitled to relief.” Fed. R. Civ. P. 8(a)(2). Dismissal “is appropriate only where the complaint

12 lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.”

13 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). “[A] complaint

14 must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

15 on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

16 550 U.S. 544, 570 (2007)). Factual allegations need not be detailed, but facts must be “enough to

17 raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.

18 “A claim has facial plausibility when the plaintiff pleads factual content that allows the

19 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

20 Iqbal, 556 U.S. at 678. While this standard is not “akin to a ‘probability requirement,’ . . . it asks

21 for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly,

22 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s

23 liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’”

24

25

5 The motion is styled as having been made under Rules 12(b)(1) and 12(b)(6) of the Federal

Rules of Civil Procedure. ECF No. 32 at 7. Beyond that single reference to Rule 12(b)(1),

26 however, there is no discussion of the Court’s jurisdiction (or lack thereof) over the case, and

during the motion hearing, defense counsel conceded that PacifiCorp’s motion contained “no

27 jurisdictional argument.” ECF No. 64 at 2:18–25. The reference to Rule 12(b)(1) appears to have

been imported from Defendant’s prior motion to dismiss. ECF No. 17-1 at 5, 16–17. Because

1 Id. (quoting Twombly, 550 U.S. at 557). In determining whether a plaintiff has met the

2 plausibility requirement, a court must “accept all factual allegations in the complaint as true and

3 construe the pleadings in the light most favorable” to the plaintiff. Knievel v. ESPN, 393 F.3d

4 1068, 1072 (9th Cir. 2005). A plaintiff may “plead[] facts alleged upon information and belief

5 where the facts are peculiarly within the possession and control of the defendant or where the

6 belief is based on factual information that makes the inference of culpability plausible.” Soo Park

7 v. Thompson, 851 F.3d 910, 928 (9th Cir. 2017) (quoting Arista Recs., LLC v. Doe 3, 603 F.3d

8 110, 120 (2d Cir. 2010)).

9 V. DISCUSSION

10 A. Clean Water Act

11 The CWA is designed to “restore and maintain the chemical, physical, and biological

12 integrity of the Nation’s waters.” Ecological Rts. Found. v. Pac. Gas & Elec. Co., 713 F.3d 502,

13 505 (9th Cir. 2013) (“ERF I”) (citing 33 U.S.C. § 1251(a)). With limited exceptions, it prohibits

14 the discharge of pollutants into the navigable waters of the United States. 33 U.S.C. §§ 1311(a),

15 1362(12). Any discharge of a pollutant from a point source into navigable waters is unlawful

16 unless the discharge is covered by a NPDES permit. 33 U.S.C. § 1311(a).

17 Stormwater presents a “unique problem under the CWA, because it is a significant source

18 of water pollution but is not ‘inherently a nonpoint or point source.’” ERF I, 713 F.3d at 505.

19 Congress amended the CWA in 1987 to regulate stormwater, establishing a two-phased approach.

20 Id. In Phase I, “EPA required NPDES permits for the most significant stormwater discharges:

21 those from a prior permitted source or large municipality; those that “contribute[ ] to a violation of

22 a water quality standard or [are] a significant contributor of pollutants to waters of the United

23 States;” and, relevant here, those “associated with industrial activity.” Id. In Phase II, the EPA

24 promulgated regulations that required permitting for storm water discharges from small municipal

25 facilities (“MS4”) and from construction activity disturbing between one and five acres. Id.; see

26 also 40 C.F.R. § 122.26(a)(9)(i).

27 Each state administers its own EPA-approved permit program for discharges. 33 U.S.C.

1 from the EPA to administer the NPDES permit program for the State. ECF No. 23 ¶ 28; ECF No.

2 17-2 at 8. The State Board issues NPDES permits regulating discharges. Id. For this purpose, the

3 State Board adopted the “National Pollution Discharge Elimination System (NPDES) General

4 Permit for Storm Water Discharges Associated with Industrial Activities.” ECF No. 18-1 at 4.

5 However, a State Board’s decision to leave a facility unregulated does not foreclose a court from

6 finding that a facility’s stormwater discharge into navigable waters violates the CWA. Ass’n to

7 Protect Hammersley v. Taylor Res., 299 F.3d 1007, 1012–13 (9th Cir. 2002); see also S.F.

8 Baykeeper v. Cargill Salt Div., 481 F.3d 700, 706 (9th Cir. 2017) (“[W]e have held that a court

9 may, in entertaining a citizen suit, decide whether a discharge of particular matter into navigable

10 waters violates the CWA even though the regulating agency determined that the discharge was not

11 subject to the requirement of a permit.”)

12 Accordingly, to state a claim under the CWA, a plaintiff must allege “(1) the ongoing

13 addition of (2) a pollutant (3) to the navigable waters of the United States (4) from a point source

14 (5) without a permit (or in violation of a permit).” Woodward v. Goodwin, No. 99-cv-1103-MJJ,

15 2000 WL 694102, at *5 (N.D. Cal. May 12, 2000). Furthermore, considering the special

16 circumstances surrounding stormwater, a plaintiff must also allege that the discharges fell within

17 the Phase I or Phase II categories of stormwater discharges that are required to obtain a permit.

18 ERF I, 713 F.3d at 505–506.

19 PacifiCorp argues that EcoRights has not adequately alleged that: (1) discharges from the

20 Crescent City Facility come from a point source; and that (2) the Crescent City facility generates

21 stormwater “associated with industrial activity.” ECF No. 32 at 10–18. Instead, PacifiCorp

22 claims that the Facility is covered by Crescent City’s MS4 permit. ECF No. 45 at 6–9. The Court

23 reviews each of these arguments in turn.

24 1. Point Source

25 Although PacifiCorp initially argues that EcoRights failed to allege that discharges from

26 PacifiCorp’s Crescent City Facility are conveyed by a “point source,” ECF No. 32 at 10–12, it

27 later concedes this point, ECF No. 45 at 8 (“EcoRights has alleged multiple ‘point sources’ by

1 EcoRights has adequately alleged point sources as required under the CWA, the Court denies the

2 motion on this ground.

3 2. Municipal Stormwater Permit

4 Having admitted that EcoRights has alleged a point source, PacifiCorp argues for the first

5 time in its reply brief that the Crescent City Facility is not “required to obtain coverage . . . since

6 its discharges were chosen not to be regulated directly,” and are instead regulated “under the

7 State’s Phase II Small MS4 General Permit.” ECF No. 45 at 6–9. In its sur-reply, EcoRights

8 responds that neither the CWA nor EPA’s implementing regulations allow for a point source to be

9 exempted based on the existence of a municipal discharge permit for the City. ECF No. 59 at 2–5.

10 The question before this Court is whether Crescent City’s MS4 permit obviates the need

11 for a separate industrial stormwater discharge permit. The Court concludes that it does not.

12 Although there is no clear Ninth Circuit guidance on this issue, the plain language of the CWA,

13 implementing EPA regulations, and the Crescent City MS4 permit indicate that there is a need for

14 an independent permit for an industrial facility even if there is a pre-existing MS4 permit for the

15 City.

16 The CWA provides for separate permits for stormwater discharges from an industrial

17 facility and stormwater discharges from municipal sources. Compare 33 U.S.C § 1342(p)(3)(A)

18 and 1342(p)(3)(B) (separate permit requirements for industrial discharges and municipal

19 discharges). Furthermore, as described above, EPA implemented regulations for industrial and

20 municipal discharges in two phases—Phase I covering industrial activities and large municipal

21 facilities, and Phase II covering small municipal facilities. ERF I, 713 F.3d at 505. EPA’s final

22 rules for permits also view industrial stormwater permits as separate and distinct from municipal

23 permits. The NPDES regulation preamble finds that “discharges through a municipal storm sewer

24 need to be covered by an NPDES permit that is independent of the permit issued for discharges

25 from the municipal separate sewer system.” National Pollutant Discharge Elimination System

26 Permit Application Regulations for Storm Water Discharges, 55 Fed. Reg. 47,990, 47,995 (Nov.

27 16, 1990) (codified at 40 C.F.R. pts. 9, 122, 123 and 124) (emphasis added). Thus, the statutory

1 purposes” for “stormwater discharges from three potential sources: municipal separate storm

2 sewer systems, construction activities, and industrial activities.” Conservation L. Found., Inc. v.

3 Pease Dev. Auth., No. 16-cv-493-SM, 2017 WL 4310997, at *9 (D.N.H. Sept. 26, 2017). The

4 distinct permitting requirements give “rise to an inference that the [] sources invoke different

5 environmental concerns, requiring separate monitoring and management efforts.” Id.; see also

6 Puget Soundkeeper All. v. Cruise Terminals of Am., LLC, 216 F. Supp. 3d 1198, 1207–08 (W.D.

7 Wash. 2015); Kleinman v. City of Austin, No. 1:15–CV–497–RP, 2017 WL 3585792, at *5 (W.D.

8 Tex. Aug. 18, 2017).

9 The Crecent City MS4 Permit also expressly states that the MS4 permittee must

10 “determine if the facilities that are required to be covered under the Statewide Industrial General

11 Permit have done so,” and if they have not, the permittee must “notify the appropriate Regional

12 Water Board.” ECF No. 46-2 at 6. Accordingly, “[t]he Municipal Permit itself states that a

13 separate NPDES permit is required for facilities that create stormwater discharges associated with

14 industrial activity.” Puget Soundkeeper All., 216 F. Supp. 3d at 1207–08.

15 If the Crescent City Facility does, in fact, qualify as an operator of an industrial facility

16 under the regulations, the Facility is required to secure permit coverage to discharge industrial

17 stormwater regardless of whether the City has an independent MS4 permit for its municipal

18 discharges. The Court will not dismiss the complaint based on the existence of Crescent City’s

19 MS4 permit.

20 3. Industrial Activity

21 PacifiCorp argues that EcoRights has failed to state a claim under the CWA because

22 EcoRights has failed to allege how the Crescent City Facility qualifies as an “industrial activity”

23 such that PacifiCorp would be required to obtain a stormwater discharge or NPDES permit. ECF

24 No. 32 at 13–16. Instead, PacifiCorp claims that the Facility is an “auxiliary facility” supporting

25 its primary activity of electrical power generation and distribution that is exempt from such

26 permitting requirements. Id. at 17–18. Neither argument is persuasive.

27 a. Primary Industrial Activity

1 industrial activity.” Friends of Outlet Creek v. Grist Creek Aggregates, LLC, No. 16-CV-00431-

2 JSW, 2019 WL 1975434, at *7 (N.D. Cal. Mar. 19, 2019); 33 U.S.C. § 1342(p)(2)(B). Discharges

3 from industrial activity are “discharge[s] from any conveyance that is used for collecting and

4 conveying storm water and that is directly related to manufacturing, processing or raw materials

5 storage at an industrial plant.” 40 C.F.R. § 122.26(b)(14). EPA’s regulations list several

6 categories of industrial facilities that “are engaging in ‘industrial activity’” for purposes of Section

7 122.26(b)(14). Id. The list includes certain Standard Industrial Classification (“SIC”) code

8 categories that meet the definition of industrial activity. Id. EPA’s definition also includes a

9 narrative description of covered industrial activities, including “industrial plant yards . . . material

10 handling sites . . . sites used for the storage and maintenance of material handling equipment . . .

11 shipping and receiving areas . . . storage areas . . . for raw materials . . . and areas where industrial

12 activity has taken place in the past and significant materials remain.” Id. However, courts have

13 recognized at least one exception—the Ninth Circuit has determined that SIC Code 4911 for

14 electrical services does “not appear to be included or implicated in [industrial activities under] 40

15 C.F.R. § 122.26(b)(14).” ERF I, 713 F.3d at 512, n.7.

16 The State Board is the regulatory body in charge of implementing EPA’s regulations and

17 issuing the relevant stormwater permits to dischargers. The State Board’s NPDES General Permit

18 fact sheet states that the:

19 General Permit provides regulatory coverage for all facilities with

industrial activities . . . where the covered industrial activity is the

20 Discharger’s primary industrial activity. In some instances, a

Discharger may have more than one primary industrial activity

21 occurring at a facility.

22

ECF No. 17-2 at 18 (emphasis added); Eden Env. Citizen’s Grp., LLC v. Cal. Cascade Bldg.

23

Materials, Inc., No. 19-cv-1936-TLN-KJN, 2021 WL 4286464, at *5 (E.D. Cal. Sept. 21, 2021).

24

The SIC Manual further explains that whether an activity is “primary” turns on whether “the

25

employment in each such economic activity is significant” and whether “separate reports can be

26

prepared on the number of employees, their wages and salaries, sales or receipts.” ECF No. 18-1

27

at 84.

1 PacifiCorp argues that “none of the activities EcoRights alleges constitute the Facility’s

2 ‘primary activity’—supporting electrical power generation and distribution” that is, SIC Code

3 4911. ECF No. 45 at 6. PacifiCorp further contends that “EcoRights exaggerates the maintenance

4 activities . . . to create the ‘wholesale distribution of scrap and waste materials’ where none exists,

5 vehicle operations to fit its narrative, and oversell[s] the extent of sand and gravel operations, none

6 of which are ‘primary’ or even ‘distinct and separate economic activities’ for the Facility.” ECF

7 No. 32 at 16.

8 As PacifiCorp points out, “EcoRights must ‘plausibly’ allege that PacifiCorp engages in

9 activity that fits within the 11 specific SIC codes cited in the regulation, 40 C.F.R. §

10 122.26(b)(14)(i)–(xi), or the 9 categories of facilities the Board has identified as requiring a []

11 permit.” ECF No. 45 at 6. At the pleadings stage, a plaintiff’s factual allegations must be

12 accepted as true. Knievel, 393 F.3d at 1072. The FAC sets forth in detail how the Crescent City

13 Facility may be classified within SIC Codes 5093 (recycling activities), ECF No. 23 ¶¶ 79–81,

14 4231 (motor vehicle maintenance activities), id. ¶¶ 82–87, and 1442 (sand and gravel handling

15 activities), id. ¶¶ 88–89. It also alleges on information and belief that employment and revenue

16 generation in these activities are significant and that these activities constitute “primary industrial”

17 activities. Id. ¶¶ 80, 85–86, 89, 91. PacifiCorp’s factual disagreement about the primary activity

18 of the Crescent City Facility is irrelevant at the motion to dismiss stage; PacifiCorp has failed to

19 show that the Crescent City Facility must be classified as SIC Code 4911 by virtue of the

20 provisions of either the CWA or its implementing regulations. Furthermore, the FAC alleges that

21 the Facility falls within the narrative description of industrial activity including a “material

22 handling site” and “storage area for raw materials.” Id. ¶ 92. As EcoRights points out, and the

23 Court agrees, PacifiCorp entirely ignores this alternative narrative basis for permit coverage,

24 thereby effectively conceding this point. ECF No. 39 at 18; Bluestar Genomics v. Song, No. 21-

25 CV-04507-JST, 2023 WL 8852735, at *6 (N.D. Cal. Dec. 21, 2023) (citing Lou v. Am. Honda

26 Motor Co., Inc., No. 16-CV-04384-JST, 2022 WL 18539358, at *2 (N.D. Cal. Aug. 26, 2022)).

27 EcoRights has plausibly pleaded that the Crescent City Facility may properly be classified

1 PacifiCorp’s motion to dismiss on these grounds.

2 b. Auxiliary Facility

3 PacifiCorp contends that even if EcoRights alleges primary industrial activities for which a

4 permit is required, its claims under the CWA fail because the Facility is “auxiliary” and therefore

5 exempt from permitting requirements.6 ECF No. 32 at 17–18.

6 The SIC Manual defines auxiliaries as:

7 [E]stablishments [i.e., economic units] primarily engaged in

performing management or support services for other establishments

8 of the same enterprise . . . A unit that performs auxiliary functions

and is located physically separate from the establishment or

9 establishments served is treated as a separate establishment.

. . .

10

The following are examples of auxiliary establishments primarily

11 engaged in performing management or support services for other

establishments of the same enterprise:

12 . . .

13 (3) Warehouses and storage facilities primarily serving other

establishments of the same enterprise.

14

(4) Maintenance and repair shops primarily serving other

15 establishments of the same enterprise for the maintenance

and repair of its own machinery and equipment.

16

17 ECF No. 18-1 at 85–87. “An establishment is not necessarily identical with the enterprise

18 (company) which may consist of one or more establishments.” Id. at 84. The SIC Manual also

19 provides a carve-out for electrical operations:

20 For activities such as . . . electric, gas, . . . and similar physically

dispersed operations, establishments are represented by those

21 relatively permanent main or branch offices, terminals, stations, etc.,

that are either (1) directly responsible for supervising such activities,

22 or (2) the base from which personnel operate to carry out these

activities. Hence, the individual sites, projects, fields, networks,

23 lines, or systems of such dispersed activities are not ordinarily

considered to be establishments.

24

25

26

6 EcoRights submits evidence from a State Board email to explain how the SIC Manual should be

interpreted. ECF No. 39 at 20. PacifiCorp asks this Court to give the State Board’s interpretation

27 of the SIC Manual deference under Skidmore v. Swift Co., 323 U.S. 134 (1944). ECF No. 45 at

11. However, as described above, PacifiCorp also filed an objection to EcoRights’ inclusion of

1 Id. PacifiCorp argues that the Crescent City Facility and its storage and other support functions

2 should be considered “auxiliary” to PacifiCorp’s primary industrial activity—supporting the

3 generation and transmission of electrical power, and that the Facility does not need a discharge

4 permit. ECF No. 32 at 17–18. EcoRights proffers two responses. First, that “the ‘individual

5 sites’ that do not constitute establishments are the physically dispersed networks or lines, such as

6 PacifiCorp’s dispersed electricity lines,” and that the Facility “is not a ‘physically dispersed

7 operation,’ but . . . [a] ‘relatively permanent’ location that the SIC Manual says can constitute an

8 ‘establishment.’” ECF No. 39 at 19. Second, EcoRights contends that there is a difference

9 between auxiliary “functions” and auxiliary “facilities.” Id. at 19–20. That is, “for a multi-

10 activity facility, each establishment must be analyzed to determine if it is ‘auxiliary.’” Id. If a

11 facility has “more than one establishment, and one is not an ‘auxiliary,’ the facility requires

12 General Permit coverage for that non-auxiliary establishment.” Id.

13 Regardless of how the parties interpret the SIC Manual, ultimately, they disagree about

14 whether there is more than one activity at the Facility. If even one of those activities are properly

15 classified as a primary industrial activity, and not an “auxiliary” to other establishments run by

16 PacifiCorp, then a permit is required. These are factual questions that cannot be resolved at the

17 pleading stage. As described above, EcoRights alleges that “PacifiCorp conducts functions that do

18 not provide support services to its generation and transmission of electrical power” including for

19 example recycling activities, ECF No. 23 ¶¶ 79–81, motor vehicle maintenance activities, id. ¶¶

20 82–87, and sand and gravel handling activities, id. ¶¶ 88–89. ECF No. 39 at 20. This is sufficient

21 to allege that the Crescent City Facility generates stormwater “associated with industrial activity.”

22 B. Resource Conservation and Recovery Act

23 To state a claim under the citizen-suit provision of RCRA, EcoRights must allege that

24 PacifiCorp “(1) has contributed or . . . is contributing to the past or present handling, storage,

25 treatment, transportation, or disposal (2) of any solid or hazardous waste, (3) which may present

26 an imminent and substantial endangerment to health or the environment.” Ctr. for Biological

27 Diversity v. U.S. Forest Serv., 80 F.4th 943, 950 (9th Cir. 2023) (internal quotation marks

1 PacifiCorp argues that EcoRights waived its RCRA claims by failing to present them in its

2 initial complaint; and in the alternative that, EcoRights has failed to meet each of the prongs

3 required to state a claim under RCRA. ECF No. 32 at 18–22.

4 1. Waiver

5 EcoRights’ initial complaint stated that it “does not seek redress for PacifiCorp’s violation

6 of the RCRA at the Crescent City Facility . . . Only PacifiCorp’s violations of the CWA at the

7 Crescent City Facility are addressed in this Complaint.” ECF 1 at ¶ 9 n.2. PacifiCorp argues

8 EcoRights waived its right to bring a RCRA claim by “affirmatively disclaiming its RCRA claim

9 in its initial Complaint more than ninety (90) days after EcoRights’ notice of its intent to sue.”

10 ECF No. 32 at 2, 19. EcoRights responds that at the time of its initial complaint, it believed the

11 Court did not have subject matter jurisdiction over its RCRA claim because it believed the 90-day

12 notice period under RCRA had not elapsed. ECF No. 39 at 22. EcoRights contends that once the

13 notice period elapsed, it timely filed an amended complaint. Id.

14 PacifiCorp’s position is without substance. Federal Rule of Civil Procedure 15(a)

15 provides:

(1) Amending as a Matter of Course. A party may amend its

16 pleading once as a matter of course within:

(A) 21 days after serving it, or

17 (B) if the pleading is one to which a responsive pleading is

required, 21 days after service of a responsive pleading or 21

18 days after service of a motion under Rule 12(b), (e), or (f),

whichever is earlier.

19

Fed. R. Civ. P. 15(a). The Ninth Circuit views “Rule 15(a)(1)’s ability to amend as a right . . .

20

which is exhausted or limited only by the restrictions set forth in the Rule itself.” Ramirez v. Cnty.

21

of San Bernardino, 806 F.3d 1002, 1007–08 (9th Cir. 2015) (collecting cases finding that a

22

plaintiff has an absolute right to amend once as long as it is timely.) Under RCRA, a citizen

23

plaintiff must give notice to the alleged violator at least 90 days before filing suit under RCRA.

24

42 U.S.C. § 6972(b)(2)(A).

25

EcoRights was permitted to amend “as of right” “21 days after” PacifiCorp’s motion to

26

dismiss, Fed. R. Civ. P. 15(a)(1)(B), and it did so. PacifiCorp offers no authority in support of its

27

contention that EcoRights waived its RCRA claim by not bringing it in its initial complaint, and

1 the Court rejects the contention. PacifiCorp’s motion to dismiss on this ground is denied.

2 2. Active Storage, Transport, or Disposal of Hazardous Substances

3 PacifiCorp claims that EcoRights has offered “no allegations that PacifiCorp is engaged in

4 active storage, transport or disposal of hazardous substances, rendering its RCRA claim

5 defective.” ECF No. 32 at 22. EcoRights responds that “PacifiCorp has a ‘measure of control’ or

6 is ‘otherwise actively involved’ with the handling, storage, treatment, transportation, and/or

7 disposal of the solid waste.” ECF No. 39 at 28.

8 To state a RCRA claim, a plaintiff must allege that the defendant was “directly connected”

9 to the waste disposal process—such as shipping waste to hazardous waste treatment, storage, or

10 disposal facilities. Cal. River Watch v. City of Vacaville, 39 F.4th 624, 632–33 (9th Cir. 2022).

11 Furthermore, RCRA requires more than just hypothetical control to establish contributor liability.

12 Id. at 953 (citing Ecological Rts. Found. v. Pac. Gas & Elec. Co., 874 F.3d 1083, 1101 (9th Cir.

13 2017) (“ERF II”) (merely identifying tire-tracking (a passive method of waste disposal) as a

14 “potential mechanism” by which a defendant might have contributed to dispersal of wastes, does

15 not establish actual contribution.) That is, EcoRights must allege that PacifiCorp was “actively

16 involved in or [has] some degree of control over the waste disposal process to be liable under [the]

17 RCRA.” Ctr. for Biological Diversity, 80 F.4th at 950.

18 PacifiCorp does not dispute that “it has some level of control over the Poles at the Facility,

19 but [argues it] is not engaging in waste disposal, or ‘disposal’ of any kind. Any waste disposal

20 occurs off-site by another company, and any recycling of the Poles does not, by definition,

21 constitute the disposal of waste.” 7 ECF No. 45 at 16–17. The FAC alleges that PacifiCorp’s “use,

22 storage, moving . . . related to the Poles and/or TWW” releases Wood Treatment Waste into the

23 environment. ECF No. 23 ¶¶ 3, 48. This is sufficient to allege that PacifiCorp is actively involved

24 in or has some degree of control over the waste disposal process. The truth of these allegations

25 can be tested at a more appropriate stage of the proceedings. The Court denies PacifiCorp’s

26

27

7 While it is true that materials held for future recycling are not RCRA solid waste, Am. Mining

1 motion to dismiss on these grounds.

2 3. Solid Waste

3 PacifiCorp alleges that the Wood Treatment Wastes are not solid wastes under RCRA for

4 two reasons: (1) RCRA’s solid waste definition excludes industrial discharges which are point

5 sources subject to permits under the CWA and (2) the wood treatment chemicals are still serving

6 their intended purpose and have therefore not been discarded. ECF No. 32 at 20–22.

7 a. Permitted under CWA

8 PacifiCorp argues that if the Wood Treatment Mixtures are subject to permits under the

9 CWA, they are excluded from the definition of “solid waste” under RCRA and therefore not

10 regulated under RCRA. ECF No. 32 at 22.

11 RCRA’s definition of solid waste excludes “industrial discharges which are point sources

12 subject to permits under section 1342 of [the CWA].” 42 U.S.C. § 6903(27). In Los Angeles

13 Waterkeeper v. SSA Terminals, LLC, the court found that the complaint failed to “adequately

14 allege that the Facilities discharge non-industrial stormwater constituting solid waste subject to

15 [the] RCRA, as opposed to ‘solid or dissolved material in . . . industrial discharges which are point

16 sources’” subject to the defendants’ general permit under the CWA. No. 22-CV-01198-FWS-

17 MRW, 2023 WL 7960773, at *16 (C.D. Cal. Nov. 14, 2023) (internal citations omitted).

18 PacifiCorp contends that “EcoRights has not distinguished between industrial and non-

19 industrial stormwater” and that under L.A. Waterkeeper, EcoRights fails to allege sufficient facts

20 to support a “solid waste” regulated under RCRA. ECF No. 32 at 22. EcoRights responds that

21 first, unlike L.A. Waterkeeper, PacifiCorp does not have a preexisting general permit governing

22 the discharges of industrial stormwater and therefore, this exception does not apply. ECF No. 39

23 at 29–30; ECF No. 23 ¶ 171. Next, EcoRights argues that its complaint makes clear that “(1) the

24 solid waste pollution at issue is not limited to pollution of ‘waters of the United States’; (2) the

25 solid waste pollution at issue is broader than the pollutants regulated under the CWA; and (3) the

26 methods by which such pollutants are released into the environment . . . are not limited to storm

27 water associated with industrial activity.” ECF No. 39 at 30.

1 subject to any CWA permits as a point source, such that PacifiCorp’s motion on this ground must

2 be denied. Also, EcoRights has sufficiently alleged that there is pollution from the Facility that is

3 broader than discharges from a point source. The FAC states how pollutants discharge into the

4 surrounding environment by means other than point source discharges of storm water. First the

5 “toxic Wood Treatment Mixtures Waste from the Poles and TWW travels in storm water to

6 unpaved areas downstream of the Crescent City Facility where it contaminates surface sediments

7 and infiltrates into the ground and groundwater.” ECF No. 23 ¶ 62. Second, the “contamination

8 can further escape the Crescent City Facility when . . . [the] Wood Treatment Mixtures Waste are

9 tracked off of the Crescent City Facility by vehicles, foot traffic, and/or in storm water and/or by

10 wind, leaf blower, sweeping, powerwashing, and/or other natural or artificial processes that are

11 designed to and/or do move material from one area to another.” Id. The Court finds that

12 EcoRights’ allegations are sufficient to explain that there are non-point source discharges and

13 other types of pollutants constituting solid waste subject to RCRA.

14 b. Intended Purpose of Wood Treatment Mixtures

15 PacifiCorp argues that the Wood Treatment Mixtures are still serving their intended

16 purpose, have not been discarded, and therefore cannot be “solid waste.” ECF No. 32 at 20–21.

17 RCRA defines “solid waste” as:

18 [A]ny . . . discarded material, including solid, liquid, semisolid, or

contained gaseous material resulting from industrial, commercial,

19 mining, and agricultural operations[.]

20 42 U.S.C § 6903(27). The Ninth Circuit has previously found that “discard” means to “cast aside;

21 reject; abandon; give up.” ERF I, 713 F.3d at 515. The Ninth Circuit reasoned that “like pesticide

22 applied to a field, preservative that falls to the base of a utility pole still serves its intended purpose

23 by inhibiting the growth of vegetation, fungi, and other organisms,” and held that “wood

24 preservative that is washed or blown away from utility poles by natural means, [was] an expected

25 consequence of the preservative’s intended use, [and] has [therefore] not been ‘discarded.’” Id. at

26 516. Accordingly, “[w]hether a product has ‘served its intended purpose and is no longer wanted

27 by the consumer’ is a ‘key’ consideration in determining whether a substance constitutes solid

1 EcoRights explains in its FAC that the “solid waste” is the discharge of Wood Treatment

2 Wastes “associated with the new, freshly treated utility poles, used treated utility poles or cross-

3 arms (collectively, ‘Poles’) and treated wood waste (‘TWW’) stored at the Crescent City Facility.”

4 ECF No. 23 ¶ 1. TWW, in turn, “means any wood items or fragments thereof that have been

5 treated with any of the Wood Treatment Mixtures but that are not complete Poles and/or cross-

6 arms destined for service, which includes, but is not limited to, out of service utility poles, used

7 utility pole segments, out of service cross arms, used cross arm segments, sawdust, splinters, wood

8 chips, and any other wood pieces and/or fragments.” Id. ¶ 2 n.1.

9 PacifiCorp argues that any spillage or drippage is not discarded product because “the new

10 Poles, destined for installation . . . are not discarded or waste.” ECF No. 32 at 20. PacifiCorp

11 further argues that the Poles stored at the Facility “are currently being used, or will be recycled

12 and then re-used.” ECF No. 45 at 15. EcoRights responds that the Wood Treatment Mixtures “in

13 this case ‘ha[ve] served [their] intended purpose and [are] no longer wanted by’ PacifiCorp.” ECF

14 No. 39 at 24.

15 Under ERF I, the focus of this Court’s inquiry is whether the Wood Treatment Mixtures—

16 and not the utility poles or TWW—have “served [their] intended purpose” and are “no longer

17 wanted by the consumer.” ERF I, 713 F.3d at 515. While some of the poles stored at the Crescent

18 City facility might, as PacifiCorp contends, be “new, freshly treated utility poles,” EcoRights

19 plausibly alleges that some of the wood preservative washes away from “out of service utility

20 poles,” “out of service cross arms,” “sawdust,” “splinters,” and “wood chips.” These materials are

21 clearly alleged to have been “abandoned and cast aside by the facilities’ operators,” creating at

22 least a dispute of fact as to whether the TWW is “discarded material.” Cal. River Watch, 39 F.4th

23 at 630. Moreover, it follows logically that because out-of-service utility poles and like materials

24 no longer require wood preservative, the usefulness of the wood preservative left on the TWW is

25 eliminated. See Cmty. Ass’n for Restoration of the Env’t, Inc. v. Cow Palace, LLC, 80 F. Supp. 3d

26 1180, 1220 (E.D. Wash. 2015) (“Rather, this Court determined that the issue of whether manure

27 can be considered a solid waste hinges, factually, on whether the manure is handled and used in

1 such a manner that its usefulness as a fertilizer is eliminated.”).8 The Court will deny PacifiCorp’s

2 motion on this ground.

3 4. Imminent or Substantial Endangerment

4 PacificCorp argues that EcoRights has not properly alleged that the California Department

5 of Toxic Substances Control (“DTSC”) or any other regulator has found that the alleged

6 discharges would support a finding of “imminent and substantial” endangerment. ECF No. 32 at

7 22. EcoRights responds that it “repeatedly alleges imminent and substantial endangerment based

8 on pollution of the Facility itself, pollution of the unfenced lot next door, pollution of the

9 neighborhood, pollution of nearby homes, pollution of nearby businesses, pollution of a nearby

10 cul-de-sac where children appear to play basketball, direct contact with storm water and/or

11 associated pollutants leaving the Facility, and pollution of various riparian areas and other natural

12 resource areas that are not waters.” ECF No. 39 at 30 (citing ECF No. 23 ¶¶ 3, 17, 48–50, 52, 53,

13 57–63, 68–70, 72–76, 148–54, 156, 157, 159, 161).

14 PacifiCorp cites no authority requiring that a plaintiff allege that DTSC investigated or

15 issued a notice of violation to show imminent and substantial endangerment to human health or

16 the environment. The Court finds that EcoRights has sufficiently pleaded imminent and

17 substantial endangerment to human health or the environment.

18 5. Duplicative of Clean Water Act

19 EcoRights claims that PacifiCorp is violating both the CWA and RCRA based in part on

20 discharge of stormwater runoff from Poles and TWW. PacifiCorp raises for the first time in reply

21 that “EcoRights’ position violates RCRA’s anti-duplication provision, [42 U.S.C. § 6905(a)] as it

22 would invoke the ‘duplicative regulation’ that the provision was intended to preclude.” ECF No.

23 45 at 19. EcoRights argues in its sur-reply that PacifiCorp “wholly fails to identify any specific

24 statutory requirements imposed by the CWA that are inconsistent with RCRA remedies here.”

25 ECF No. 59 at 6.

26

27

8 Indeed, Defendants acknowledge in a supplemental brief that “some of the used poles are

damaged or have reached the end of their useful life and must be appropriately disposed of in an

1 The anti-duplication provision of RCRA provides that RCRA will not apply to “any

2 || activity or substance which is subject to the Federal Water Pollution Control Act. .., the Safe

3 Drinking Water Act. . ., the Marine Protection, Research and Sanctuaries Act of 1972 ..., or the

4 Atomic Energy Act of 1954 ..., except to the extent that such application (or regulation) is not

5 inconsistent with the requirements of such Acts.” 42 U.S.C. § 6905(a). Accordingly, the Ninth

6 || Circuit has held that “[the] anti-duplication provision does not bar RCRA’s application unless that

7 || application contradicts a specific mandate imposed under the CWA.” ERF IT, 874 F.3d at 1095.

8 || That is, the application of RCRA must be “incompatible, incongruous, [or] inharmonious” with

9 || CWA requirements for the anti-duplication provision to apply. Jd. It is the defendant’s burden to

10 || show that an inconsistency between RCRA and CWA will result if the court does not dismiss the

11 RCRA claim. S.F. Herring Ass’n v. Pac. Gas & Elec. Co., 81 F. Supp. 3d 847, 866 (N.D. Cal.

12 |} 2015).

13 Other courts have “declined to dispose of RCRA claims based upon [S]ection 6905 at the

14 || motion to dismiss stage because ‘discovery is needed to determine if the RCRA and CWA are

3 15 inconsistent.’” /d. (internal citations omitted). At this stage, PacifiCorp has not shown that any

a 16 || inconsistency between the CWA and RCRA will result from this Court’s failure to dismiss the

3 17 RCRA claim. Accordingly, the Court denies PacifiCorp’s motion with respect to anti-duplication.

1g CONCLUSION

19 For the reasons described above, the Court denies PacifiCorp’s motion to dismiss.

20 IT IS SO ORDERED.

21 || Dated: June 26, 2024 .

22 JON S. TIGAR

23 nited States District Judge

24

25

26

27

28