Ecological Rights Foundation v. Pacific Gas & Electric Co.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ECOLOGICAL RIGHTS FOUNDATION , No. 11-16042

Plaintiff-Appellant,

D.C. No.

v. 4:09-cv-03704-

SBA

PACIFIC GAS AND ELECTRIC

COMPANY ; PACIFIC BELL

TELEPHONE COMPANY , OPINION

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of California

Saundra B. Armstrong, District Judge, Presiding

Argued and Submitted

October 16, 2012—San Francisco, California

Filed April 3, 2013

Before: Richard C. Tallman, Consuelo M. Callahan,

and Andrew D. Hurwitz, Circuit Judges.

Opinion by Judge Callahan;

Concurrence by Judge Hurwitz

2 ECOLOGICAL RIGHTS FOUNDATION V . PG&E

SUMMARY*

Environmental Law

The panel affirmed the dismissal of a citizen suit alleging

that utility poles discharged wood preservative into the

environment in violation of the Clean Water Act and the

Resource Conservation and Recovery Act.

The panel held that the plaintiff failed to state a claim

under the CWA because discharges of stormwater from the

utility poles were neither a “point source discharge” nor

“associated with industrial activity.” The plaintiff failed to

state a claim under RCRA because wood preservative that

escaped from the utility poles was not a “solid waste.”

Concurring in part and concurring in the result, Judge

Hurwitz wrote that he concurred in the majority opinion

except insofar as it held that utility poles cannot be point

sources for purposes of the CWA under circumstances not

presented by this case. He wrote that resolution of this issue

was unnecessary given the conclusion, which he joined, that

the defendants’ utility poles were not associated with

industrial activity.

*

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 FOUNDATION V . PG&E 3

COUNSEL

Christopher Sproul (argued), Jodene Isaacs, and Brian Orion,

Environmental Advocates, San Francisco, California;

William Verick, Klamath Environmental Law Center,

Eureka, California, for Plaintiffs-Appellants.

Russell B. Selman, Bradley S. Rochlen (argued), and J.

Michael Showalter, Schiff Hardin LLP, Chicago, Illinois, for

Defendant-Appellee Pacific Gas & Electric Company.

Douglas W. Sullivan (argued) and Joel D. Smith, Crowell &

Morring LLP, San Francisco, California, for Defendant-

Appellee Pacific Bell Telephone Company.

Daniel J. Herling, Keller & Heckman LLP, San Francisco,

California, for amicus KMG-Bernuth, Inc.

Karma B. Brown, Hunton & Williams LLP, Washington,

D.C.; Brooks M. Smith, Hunton & Williams LLP, Richmond,

Virginia, for amici American Coke & Coal Chemicals

Institute, et al.

OPINION

CALLAHAN, Circuit Judge:

Defendants-Appellees Pacific Gas & Electric Company

(“PG&E”) and Pacific Bell Telephone Company (“Pacific

Bell”) own and maintain utility poles throughout the San

Francisco Bay Area. Many of the poles are treated with a

wood preservative that contains pentachlorophenol (“PCP”),

a general biocide, and other chemicals. Plaintiff-Appellant

4 ECOLOGICAL RIGHTS FOUNDATION V . PG&E

Ecological Rights Foundation (“ERF”) filed this action

against both companies, alleging that the poles discharge

wood preservative into the environment in violation of the

federal Clean Water Act (“CWA”), 33 U.S.C. §§ 1251–1387,

and the Resource Conservation and Recovery Act (“RCRA”),

42 U.S.C. §§ 6901–6992k.

The district court, which had jurisdiction pursuant to

28 U.S.C. § 1331, 33 U.S.C. § 1365(a)(1), and 42 U.S.C.

§ 6972(a)(1)(B), dismissed ERF’s action for failure to state a

claim under Federal Rule of Civil Procedure 12(b)(6),

without leave to amend. We have jurisdiction pursuant to

28 U.S.C. § 1291, and we affirm. ERF fails to state a claim

under the CWA because discharges of stormwater from the

utility poles are neither a “point source discharge” nor

“associated with industrial activity.” ERF also fails to state

a claim under RCRA because wood preservative that escapes

from the utility poles is not a “solid waste.” Finally, the

district court did not abuse its discretion in denying ERF

leave to amend; ERF had, and took advantage of, two

opportunities to amend its complaint, and none of ERF’s

proposed amendments would cure the defects in its

allegations.

BACKGROUND

A. Statutory and regulatory background

1. The CWA

The CWA is designed to “restore and maintain the

chemical, physical, and biological integrity of the Nation’s

waters.” 33 U.S.C. § 1251(a). The CWA prohibits the

“discharge of any pollutant.” Id. § 1311(a). “Discharge of a

ECOLOGICAL RIGHTS FOUNDATION V . PG&E 5

pollutant” refers to “any addition of any pollutant to

navigable waters from any point source;” “pollutant” refers

to, among other things, “solid waste” and “chemical wastes;”

and “navigable waters” refers to “the waters of the United

States . . . .” Id. §§ 1362(6), (7), (12).

The Environmental Protection Agency (“EPA”), or a

State to which EPA has delegated its authority, may issue a

National Pollutant Discharge Elimination System (“NPDES”)

permit “for the discharge of any pollutant, . . .

notwithstanding section 1311(a) of this title.” Id. § 1342(a).

NPDES permits are required for discharges from any “point

source,” but not for discharges from “nonpoint sources.”

League of Wilderness Defenders v. Forsgren, 309 F.3d 1181,

1183 (9th Cir. 2002). Permits are either individual

(authorizing “a specific entity to discharge a pollutant in a

specific place” through an informal adjudication) or general

(authorizing entities in a geographic area to discharge

following a rulemaking). NRDC v. U.S. EPA, 279 F.3d 1180,

1183 (9th Cir. 2002).

Stormwater presents a unique problem under the CWA

because it is a significant source of water pollution but is not

“inherently a nonpoint or point source.” Nw. Envtl. Def. Ctr.

v. Brown, 640 F.3d 1063, 1070–71 (9th Cir. 2011), rev’d on

other grounds, Decker v. Nw. Envtl. Def. Ctr., — U.S. — ,

2013 WL 1131708 (Mar. 20, 2013); Envtl. Def. Ctr., Inc. v.

U.S. EPA, 344 F.3d 832, 840–41 (9th Cir. 2003). EPA

originally attempted to exempt stormwater discharges from

NPDES permitting, but the D.C. Circuit found such

exemption unlawful. NRDC v. Costle, 568 F.2d 1369, 1379

(D.C. Cir. 1977). EPA then passed regulations and, in 1987,

Congress amended the CWA to regulate stormwater. Pub. L.

6 ECOLOGICAL RIGHTS FOUNDATION V . PG&E

No. 100-4, 101 Stat. 7 (1987) (codified at 33 U.S.C.

§ 1342(p)); see also Decker, 2013 WL 1131708, at *4.

The 1987 amendments established a two-phase approach.

See generally Envtl. Def. Ctr., 344 F.3d at 841–43. In Phase

I, EPA required NPDES permits for the most significant

stormwater discharges: those from a prior permitted source or

large municipality; those that “contribute[ ] to a violation of

a water quality standard or [are] a significant contributor of

pollutants to waters of the United States;” and, most

significantly for this case, those “associated with industrial

activity.” 33 U.S.C. § 1342(p)(2); see also [NPDES]

Application Regulations for Storm Water Discharges, 55 Fed.

Reg. 47,990 (Nov. 16, 1990) (codified at 40 C.F.R. pts.

122–124). In Phase II, EPA required NPDES permits for

stormwater discharges from smaller municipal storm systems

and construction sites that disturb between one and five acres.

40 C.F.R. § 122.26(a)(9)(i)(A)–(B); see also

[NPDES]—Regulations for Revision of the Water Pollution

Control Program Addressing Storm Water Discharges,

64 Fed. Reg. 68,722 (Dec. 8, 1999) (codified at 40 C.F.R. pts.

9, 122, 123, and 124). EPA retained authority to regulate

other stormwater discharges on a local or regional, as-needed

basis. 40 C.F.R. § 122.26(a)(9)(i)(C)–(D). We upheld most

of EPA’s Phase II regulation, including EPA’s decision to

retain authority to designate other stormwater discharges on

a case-by-case basis, in Environmental Defense Center,

344 F.3d at 856–60, 873–78.

2. RCRA

“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,

ECOLOGICAL RIGHTS FOUNDATION V . PG&E 7

483 (1996). RCRA’s “primary purpose” is “to reduce the

generation of hazardous waste and to ensure the proper

treatment, storage, and disposal of that waste which is

nonetheless generated, ‘so as to minimize the present and

future threat to human health and the environment.’” Id.

(quoting 42 U.S.C. § 6902(b)).

3. Citizen suits

Chief responsibility for enforcement of the CWA and

RCRA lies with EPA, which may delegate that authority to

the States. Both statutes provide for “citizen suits” against

persons who are alleged to be in violation of the statutes’

requirements. See 33 U.S.C. § 1365; 42 U.S.C. § 6972.

A private citizen may file an action under the CWA

against a person “who is alleged to be in violation of (A) an

effluent standard or limitation under this chapter or (B) an

order issued by the Administrator or a State with respect to

such a standard or limitation.” 33 U.S.C. § 1365(a)(1). A

citizen may file an action under RCRA “against any

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).

A citizen plaintiff must give notice to the alleged violator

at least 60 days before filing suit under the CWA, and, for the

action at issue here, at least 90 days under RCRA. 33 U.S.C.

§ 1365(b)(1)(A); 42 U.S.C. § 6972(b)(2)(A); see also

Hallstrom v. Tillamook Cnty., 493 U.S. 20, 31 (1989)

(holding that RCRA’s notice and delay requirements, if not

jurisdictional, “are mandatory conditions precedent to

8 ECOLOGICAL RIGHTS FOUNDATION V . PG&E

commencing suit under the RCRA citizen suit provision”);

Covington v. Jefferson Cnty., 358 F.3d 626, 636 (9th Cir.

2004) (holding that RCRA requirements are jurisdictional);

Ctr. for Biological Diversity v. Marina Point Dev. Co.,

566 F.3d 794, 800 (9th Cir. 2009) (“[T]he giving of a 60-day

notice [under the CWA] is . . . a jurisdictional necessity.”).1

B. Factual and procedural background

On June 4, 2009, ERF sent a letter to PG&E stating that

it intended to file a citizen suit under the CWA and RCRA.

The letter alleged that PG&E had violated these statutes by

releasing into the environment wood preservative from

PG&E’s utility poles in Alameda, Contra Costa, Marin, and

San Francisco Counties. The letter contended that wood

preservative is oil-based and contains “toxic” chemicals,

including PCP and various forms of dioxin. The letter

included a non-exhaustive list of utility poles in dispute and

the dates of the alleged violations.

On August 13, 2009, ERF filed a complaint against

PG&E asserting CWA claims. Thirty days later, ERF filed a

first amended complaint adding a RCRA claim and attaching

the June 2009 notice letter. ERF sent two more notice letters

dated October 14, 2009, and January 6, 2010. The October

2009 notice added alleged responsible parties but was

otherwise identical to the June 2009 notice. The January

2010 notice added Pacific Bell, among other parties, and

1

No citizen suit may proceed if EPA or a State chooses to bring its own

action against the alleged violator. 33 U.S.C. § 1365(b)(1)(B); 42 U.S.C.

§ 6972(b)(2)(B)–(C). Neither EPA nor the State of California has so

intervened in this action.

ECOLOGICAL RIGHTS FOUNDATION V . PG&E 9

discussed poles treated with any chemical preservative, not

just PCP.

On June 21, 2010, ERF filed a second amended

complaint, the operative complaint in this appeal. The

complaint added Pacific Bell as a defendant and alleged that

PG&E and Pacific Bell had violated and were violating: (1)

the CWA, 33 U.S.C. § 1311(a), by discharging “pollutant-

bearing storm water runoff” from their utility poles into

waters of the United States without an NPDES permit; (2) the

CWA, id. §§ 1311(a), 1342, by failing to obtain an NPDES

permit, regardless of any discharges; and (3) RCRA,

42 U.S.C. § 6972(a)(1)(B), by contributing to “the past and

present handling, storage, treatment, transportation and

disposal of solid waste,” which may present an “imminent

and substantial endangerment to health or the environment.”

PG&E and Pacific Bell filed motions to dismiss the

second amended complaint for failure to state a claim. The

district court granted the defendants’ motions. Ecological

Rights Found. v. Pac. Gas & Elec. Co., 803 F. Supp. 2d 1056

(N.D. Cal. 2011). The court dismissed the CWA claim on the

ground that stormwater runoff contaminated by wood

preservative from the defendants’ utility poles is not a “point

source” discharge requiring an NPDES permit. Id. at

1062–63. The court dismissed the RCRA claim on the

ground that wood preservative that escapes from the

defendants’ utility poles is not a “solid waste” under RCRA.

Id. at 1063–65. The court dismissed the second amended

complaint without leave to amend because ERF’s “theory of

10 ECOLOGICAL RIGHTS FOUNDATION V . PG&E

liability under the CWA and RCRA cannot be rectified by

further amendment to the pleadings.” Id. at 1065.2

ERF appeals only the dismissal of its first CWA claim

(discharge without an NPDES permit) and RCRA claim; ERF

does not appeal the dismissal of its second CWA claim

(failure to obtain an NPDES permit regardless of any

discharge).

STANDARD OF REVIEW

“We review de novo the district court’s dismissal of a

complaint for failure to state a claim. We review for abuse of

discretion a district court’s decision to dismiss with

prejudice.” Okwu v. McKim, 682 F.3d 841, 844 (9th Cir.

2012) (internal and external citations omitted). The court

may affirm the dismissal on any ground supported by the

record. United States v. Washington, 573 F.3d 701, 706 (9th

Cir. 2009). The court must accept “all factual allegations in

the complaint as true and construe the pleadings in the light

most favorable to the nonmoving party.” Rowe v. Educ.

Credit Mgmt. Corp., 559 F.3d 1028, 1029–30 (9th Cir. 2009)

(quotation marks omitted). “Determining whether a

complaint states a plausible claim for relief will . . . be a

context-specific task that requires the reviewing court to draw

on its judicial experience and common sense.” Ashcroft v.

Iqbal, 556 U.S. 662, 679 (2009).

2

PG&E also moved to dismiss ERF’s complaint for lack of subject-

matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The

district court denied this motion. Ecological Rights Found., 803 F. Supp.

2d at 1060–61.

ECOLOGICAL RIGHTS FOUNDATION V . PG&E 11

DISCUSSION

A. Dismissal under Rule 12(b)(6)

1. CWA

a. “Point source” discharges

The CWA defines “point source” as “any discernible,

confined and discrete conveyance, including but not limited

to any pipe, ditch, channel, tunnel, conduit, well, discrete

fissure, container, rolling stock, concentrated animal feeding

operation, or vessel or other floating craft, from which

pollutants are or may be discharged. . . .” 33 U.S.C.

§ 1362(14). The CWA does not define “nonpoint source,”

but we have explained that

it is widely understood to be the type of

pollution that arises from many dispersed

activities over large areas, and is not traceable

to any single discrete source. Because it

arises in such a diffuse way, it is very difficult

to regulate through individual permits. The

most common example of nonpoint source

pollution is the residue left on roadways by

automobiles. Small amounts of rubber are

worn off of the tires of millions of cars and

deposited as a thin film on highways; minute

particles of copper dust from brake linings are

spread across roads and parking lots each time

a driver applies the brakes; drips and drabs of

oil and gas ubiquitously stain driveways and

streets. When it rains, the rubber particles and

copper dust and gas and oil wash off of the

12 ECOLOGICAL RIGHTS FOUNDATION V . PG&E

streets and are carried along by runoff in a

polluted soup, winding up in creeks, rivers,

bays, and the ocean.

League of Wilderness Defenders, 309 F.3d at 1184; see also

Or. Natural Desert Ass’n v. U.S. Forest Serv., 550 F.3d 778,

785 (9th Cir. 2008) (discussing regulation, or lack thereof, of

“nonpoint sources”).

Stormwater runoff is “a nonpoint or point

source . . . depending on whether it is allowed to run off

naturally (and is thus a nonpoint source) or is collected,

channeled, and discharged through a system of ditches,

culverts, channels, and similar conveyances (and is thus a

point source discharge).” Brown, 640 F.3d at 1071; see also

Greater Yellowstone Coal. v. Lewis, 628 F.3d 1143, 1152 (9th

Cir. 2010), as amended (Jan. 25, 2011) (“The text of [the

CWA] and the case law are clear that some type of collection

or channeling is required to classify an activity as a point

source.”); Envtl. Def. Ctr., 344 F.3d at 841 n.8 (“Diffuse

runoff, such as rainwater that is not channeled through a point

source, is considered nonpoint source pollution and is not

subject to federal regulation.”); Trustees for Alaska v. EPA,

749 F.2d 549, 558 (9th Cir. 1984) (“[P]oint and nonpoint

sources are not distinguished by the kind of pollution they

create or by the activity causing the pollution, but rather by

whether the pollution reaches the water through a confined,

discrete conveyance.”); cf. Decker, 2013 WL 1131708, at *16

(Scalia, J., concurring in part and dissenting in part)

(explaining that stormwater runoff from logging roads “came

from point sources, because they flowed out of artificial

‘pipe[s],’ ‘ditch[es],’ and ‘channel[s],’ 33 U.S.C. § 1362(14),

and were thus not ‘natural runoff’”).

ECOLOGICAL RIGHTS FOUNDATION V . PG&E 13

ERF alleges that rain falls on and around the defendants’

utility poles and becomes contaminated with wood

preservative. As a result, the preservative is “carried by

storm water runoff discharged from the Poles to San

Francisco Bay, its tributaries and adjacent wetlands.” Such

allegations of generalized stormwater runoff do not establish

a “point source” discharge absent an allegation that the

stormwater is discretely collected and conveyed to waters of

the United States. See Greater Yellowstone Coal., 628 F.3d

at 1152–53 (holding that stormwater that seeps through a

mining pit cover is “nonpoint source pollution because there

is no confinement or containment of the water”); Trustees for

Alaska, 749 F.2d at 558 (“[N]onpoint source pollution [i]s

runoff caused primarily by rainfall around activities that

employ or create pollutants.”).

ERF’s two counterarguments give it no purchase. First,

ERF contends that the district court (and by extension, we)

have read into its complaint an allegation it does not

contain—that the stormwater runoff reaches regulated waters

“through natural means.” However, given the longstanding

distinction in our case law between natural and conveyed

stormwater under the CWA, the district court’s reading is

reasonable absent any allegation that the runoff reaches

regulated waters via some other method. See Sierra Club v.

Abston Constr. Co., 620 F.2d 41, 45 (5th Cir. 1980)

(explaining that point source “conveyances” are “the means

by which pollutants are ultimately deposited into a navigable

body of water”).

To get around the absence of a conveyed stormwater

allegation in its complaint, ERF next contends that the

defendants’ utility poles are themselves “conveyances.” In

other words, ERF contends that “point sources” are not just

14 ECOLOGICAL RIGHTS FOUNDATION V . PG&E

“ditches, culverts, and similar channels,” but any “tangible,

identifiable thing.” Because the CWA is ambiguous on this

issue, we would normally defer to EPA. See Chevron, U.S.A.,

Inc. v. NRDC, Inc., 467 U.S. 837 (1984). But EPA has not

yet determined whether utility poles are point sources; until

EPA addresses that question, we look to cases for guidance.

See Garfias-Rodriguez v. Holder, 702 F.3d 504, 512–13 (9th

Cir. 2012) (en banc) (granting Chevron deference to agency

interpretation issued after contrary circuit cases); Managed

Pharmacy Care v. Sebelius, 705 F.3d 934, 943–44 (9th Cir.

2012) (holding that the Ninth Circuit was not bound by a

prior opinion rendered without the benefit of the agency’s

statutory interpretation or participation in the litigation).

The case law does not support ERF’s attempt to

characterize the poles as point sources. The cases ERF cites

involved things that (1) the CWA specifically identifies as

point sources,3 (2) were constructed for the express purpose

of storing pollutants or moving them from one place to

another,4 or (3) no one disputed were point sources.5 Solid

3

See, e.g., United States v. W. Indies Transp., Inc., 127 F.3d 299, 308

n.9 (3d Cir. 1997) (barges and their components, which are “vessel[s] or

floating craft[s]” under 33 U.S.C. § 1362(14)); United States v. M.C.C. of

Fla., Inc., 772 F.2d 1501, 1505-06 (11th Cir. 1985), judgment vacated on

other grounds, 481 U.S. 1034, 107 S. Ct. 1968, 95 L. Ed. 2d 809 (1987)

(“[T]he tugs used by M.C.C. were point sources since the [CW A]

specifically includes vessels within the meaning of that term”); see also

Cmty. Ass’n for Restoration of the Env’t v. Henry Bosma Dairy, 305 F.3d

943, 955 (9th Cir. 2002) (concentrated animal feeding operations);

33 U.S.C. § 1362(14) (listing additional things that are “point sources”).

4

See, e.g., Peconic Baykeeper, Inc. v. Suffolk Cnty., 600 F.3d 180,

188–89 (2d Cir. 2010) (aerial pesticide sprayers); Parker v. Scrap Metal

Processors, Inc., 386 F.3d 993, 1009 (11th Cir. 2004) (piled debris that

collected stormwater and channeled it into a nearby stream); Concerned

ECOLOGICAL RIGHTS FOUNDATION V . PG&E 15

wood utility poles are none of these things. Recognizing the

lack of clarity in the CWA, we conclude that, in the absence

of any guidance from EPA, utility poles simply are not

“discernible, confined and discrete conveyance[s]” that

“channel[ ] and control[ ]” stormwater. 33 U.S.C.

§ 1362(14); Brown, 640 F.3d at 1079; see also S. Fla. Water

Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95, 105

(2004) (emphasizing that “point source” refers to things that

transport pollutants); United States v. Plaza Health Labs.,

Inc., 3 F.3d 643, 646 (2d Cir. 1993) (explaining that “point

sources” are “physical structures and instrumentalities that

systematically act as a means of conveying pollutants from an

industrial source to navigable waterways”). For these

Area Residents for Env’t v. Southview Farm, 34 F.3d 114, 118-19 (2d Cir.

1994) (manure spreader, which was a “rolling stock” or “container” under

33 U.S.C. § 1362(14)); Avoyelles Sportsmen’s League, Inc. v. Marsh,

715 F.2d 897, 922 (5th Cir. 1983) (bulldozers and backhoes, “since they

collected into windrows and piles material that may ultimately have found

its way back into the waters”); Sierra Club, 620 F.2d at 45 (human-made

spoil piles and sediment basins that collected and channeled stormwater);

United States v. Earth Scis., Inc., 599 F.2d 368, 374 (10th Cir. 1979)

(“combination of sumps, ditches, hoses and pumps is a circulating or

drainage system to serve” a mining operation); see also League of

Wilderness Defenders, 309 F.3d at 1185 (“aircraft equipped with tanks

spraying pesticide from mechanical sprayers directly over covered

waters”); Borden Ranch P’ship v. U.S. Army Corps of Eng’rs, 261 F.3d

810, 815 (9th Cir. 2001), aff’d, 537 U.S. 99 (2002) (bulldozers and

backhoes, which ripped up and redistributed the bottom layer of soil (the

“pollutant”)); Trustees for Alaska, 749 F.2d at 558 (sluice box, a

“confined channel” that released discharge water from a mine).

5

See, e.g., Miccosukee Tribe of Indians of Fla. v. S. Fla. Water Mgmt.

Dist., 280 F.3d 1364, 1367 (11th Cir. 2002), rev’d on other grounds,

541 U.S. 95 (2004) (“No party disputes that . . . pump station and, in

particular, the pipes from which water is released constitute a point source

. . . .”).

16 ECOLOGICAL RIGHTS FOUNDATION V . PG&E

reasons, ERF has failed to state a claim upon which relief

may be granted under the CWA.

b. Additional allegations

ERF argues that its second amended complaint is not

limited to the allegation that contaminated stormwater runoff

flows from the utility poles directly into waters of the United

States. According to ERF, its complaint also alleges that: (1)

the defendants’ utility poles discharge directly into waters of

the United States (through preservative dripping into marshes

in which the poles are located), and (2) the stormwater runoff

from the poles is collected in unidentified ditches, channels,

and other conveyances which then discharge into waters of

the United States.

ERF never made this argument in the extensive motion

proceedings in the district court, and therefore waived it. See

Ruiz v. Affinity Logistics Corp., 667 F.3d 1318, 1322 (9th Cir.

2012) (“[A]n issue will generally be deemed waived on

appeal if the argument was not raised sufficiently for the trial

court to rule on it.” (quotation marks omitted)). As ERF

conceded at oral argument, ERF opposed the defendants’

motions to dismiss on the theory that utility poles are

themselves point sources of generalized stormwater runoff,

not on the theory that the poles discharged directly into

waters of the United States or that the runoff was collected

and conveyed into such waters.

ERF’s failure to urge these theories below is facially

consistent with the second amended complaint. The

complaint’s only allegation regarding how the utility poles

contaminate waters of the United States is through the

generalized “discharge” of stormwater, with no mention of

ECOLOGICAL RIGHTS FOUNDATION V . PG&E 17

the direct discharge of wood preservative or the collection

and conveyance of contaminated stormwater via channels.

Although ERF points to words and phrases such as

“leak[ing],” “drip[ping],” and “contaminat[ion of] surface

waters” in its complaint, these isolated fragments cannot bear

the weight ERF places upon them. See Iqbal, 556 U.S. at 686

(“[T]he Federal Rules do not require courts to credit a

complaint’s conclusory statements without reference to its

factual context.”); Bell Atl. Corp. v. Twombly, 550 U.S. 544,

557 (2007) (explaining that a complaint must “possess

enough heft” to show a plausible claim for relief); A.E. ex rel.

Hernandez v. Cnty. of Tulare, 666 F.3d 631, 637 (9th Cir.

2012) (“[A]llegations in a complaint or counterclaim . . . must

contain sufficient allegations of underlying facts to give fair

notice and to enable the opposing party to defend itself

effectively.” (quotation marks omitted)).

Perhaps recognizing the absence of a direct discharge or

collected runoff theory in its complaint, ERF urges us to read

the complaint together with its CWA notice letters. Under

the “incorporation by reference” doctrine, “[e]ven if a

document is not attached to a complaint, it may be

incorporated by reference into a complaint if the plaintiff

refers extensively to the document or the document forms the

basis of the plaintiff’s claim.” United States v. Ritchie,

342 F.3d 903, 908 (9th Cir. 2003); see also Davis v. HSBC

Bank Nev., N.A., 691 F.3d 1152, 1160 (9th Cir. 2012).

Whether a document is “central” to a complaint turns on

whether the complaint “necessarily relies” on that document.

See Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th

Cir. 2010). ERF’s notice letters, however, contain no direct

discharge allegations. Because a notice letter is a

jurisdictional prerequisite to suit, ERF cannot pursue

allegations its notice letter does not contain. See supra at

18 ECOLOGICAL RIGHTS FOUNDATION V . PG&E

7–8; Wash. Trout v. McCain Foods, Inc., 45 F.3d 1351, 1354

(9th Cir. 1995). ERF’s notice letters do contain allegations

about collected and conveyed runoff, but ERF did not refer

“extensively” to those notices and they were not integral to

ERF’s complaint. See Coto Settlement v. Eisenberg, 593 F.3d

1031, 1038 (9th Cir. 2010) (“[T]he mere mention of the

existence of a document is insufficient to incorporate the

contents of a document.”).

In short, ERF’s second amended complaint does not

allege that stormwater runoff from the poles is collected in

channels and then conveyed to waters of the United States, or

that the utility poles discharge directly into waters of the

United States. ERF “may not try to amend [its] complaint

through [its] arguments on appeal.” Riggs v. Prober &

Raphael, 681 F.3d 1097, 1104 (9th Cir. 2012) (citing Forbush

v. J.C. Penney Co., 98 F.3d 817, 822 (5th Cir.1996) (“[T]he

Court will not allow a party to raise an issue for the first time

on appeal merely because a party believes that he might

prevail if given the opportunity to try a case again on a

different theory.” (citation omitted))).

c. “Discharge associated with industrial activity”

Dismissal of ERF’s CWA claim was proper for another,

independent reason. As discussed above, EPA requires

NPDES permits for only certain categories of stormwater

discharges. The only category ERF argues applies in this

case is “discharge[s] associated with industrial activity.”

33 U.S.C. § 1342(p)(2)(B). We conclude that stormwater

runoff from the defendants’ utility poles is not “associated

with industrial activity,” for at least four reasons.

ECOLOGICAL RIGHTS FOUNDATION V . PG&E 19

First, stormwater runoff from the defendants’ utility poles

does not fit within EPA’s definition of “discharge associated

with industrial activity,” which is “the discharge from any

conveyance that is used for collecting and conveying storm

water and that is directly related to manufacturing, processing

or raw materials storage at an industrial plant. . . .” 40 C.F.R.

§ 122.26(b)(14). A utility pole is not a “conveyance . . . used

for collecting and conveying storm water,” nor is it “directly

related to manufacturing, processing or raw materials storage

at an industrial plant.” Nor is a utility pole a plant yard,

access road, prior industrial area, material handling, storage,

or treatment site, or any of the other types of industrial

facilities specifically identified in 40 C.F.R.

§ 122.26(b)(14)(i)–(xi).

The Supreme Court’s recent decision in Decker, supra,

supports our analysis. There, the Court held that discharges

of channeled stormwater runoff from logging roads were not

“associated with industrial activity.” Decker, 2013 WL

1131708, at *10–12. The Court explained that, among other

things, EPA “reasonably could conclude” that

§ 122.26(b)(14) “extends only to traditional industrial

buildings such as factories and associated sites, as well as

other relatively fixed facilities,” not to temporary logging

roads that lack a “closer connection to traditional industrial

sites.” Id. at *10. Utility poles may or may not be more

permanent than logging roads, but, like stormwater runoff

from such roads, runoff from utility poles is not “‘directly

related to manufacturing, processing or raw materials storage

at an industrial plant.’” Id. (quoting § 122.26(b)(14)).6

6

It is true that in Decker the Court applied deference under Auer v.

Robbins, 519 U.S. 452, 461 (1997), to EPA’s “silvicultural rule,” whereas

here there is no administrative interpretation to defer to. Our reading of

20 ECOLOGICAL RIGHTS FOUNDATION V . PG&E

The second reason why stormwater runoff from the

defendants’ utility poles is not “associated with industrial

activity” has to do with Standard Industrial Classification

(“SIC”) codes, the classification system § 122.26(b)(14) uses

to define the industrial activities it covers. See 40 C.F.R.

§ 122.26(b)(14)(ii)–(iii), (vi), (viii), (xi); see also Decker,

2013 WL 1131708, at *5, 9–10. No SIC code cited in

§ 122.26(b)(14) covers utility poles.7 ERF argues that the

regulation’s listing of SIC codes and corresponding facilities

is illustrative, not exclusive, but the regulation and our case

law suggest otherwise. See 40 C.F.R. § 122.26(b)(14) (“The

following categories of facilities are considered to be

engaging in ‘industrial activity’ . . . .”); Envtl. Def. Ctr.,

344 F.3d at 858 n.37 (“EPA used . . . [SIC] codes in defining

the universe of regulated industrial activities.”).

Third, EPA included “steam electric power generating

facilities” in the definition of “industrial activity,” but

rejected including “major electrical powerline corridors” in

the regulation. See 40 C.F.R. § 122.26(b)(14)(vii); [NPDES]

Application Regulations for Storm Water Discharges, 53 Fed.

Reg. 49,416, 49,432 (proposed Dec. 7, 1988) (“EPA prefers

§ 122.26(b)(14) as applied to ERF’s allegations is the most natural one in

the absence of guidance from EPA.

7

The SIC Codes for communication and electrical services are 4813 and

4911, respectively. See U.S. Dep’t of Labor, Occupational Safety &

H e a l t h A d m i n ., S I C D iv i s i o n S t r u c t u r e , a v a il a b l e a t

http://www.osha.gov/pls/imis/sic_manual.html (last visited March 27,

2013). These SIC Codes do not appear to be included or implicated in

40 C.F.R. § 122.26(b)(14). In contrast, the SIC codes for facilities that

preserve wood (2491) and for construction of power lines (1623)

involving greater than five acres are covered by § 122.26(b)(14)(ii) and

(x).

ECOLOGICAL RIGHTS FOUNDATION V . PG&E 21

that storm water discharges from [major powerline corridors]

not be classified as storm water discharges associated with

industrial activity, but rather be part of the class of discharges

for which storm water permits” are required under Phase II);

55 Fed. Reg. at 48,015 (final rule adopting that approach). If

EPA has rejected including major powerline corridors in the

definition of “industrial activity,” it is reasonable to conclude

that EPA did not intend to include individual residential and

commercial wooden utility poles in that definition, either.

Fourth, a conclusion that stormwater runoff from the

defendants’ utility poles is a “discharge associated with

industrial activity” could require EPA or the States to regulate

stormwater runoff from many other things. If the defendants’

utility poles are conveyances that are both “used for

collecting and conveying storm water” and “directly related

to manufacturing, processing or raw materials storage areas

at an industrial plant,” then arguably so are playground

equipment, bike racks, mailboxes, traffic lights, billboards,

and street signs—indeed, anything that might contaminate

stormwater. Absent guidance from EPA that says otherwise,

regulation of stormwater runoff from such commonplace

things would seem to run counter to EPA’s measured

regulation of stormwater discharges under 33 U.S.C.

§ 1342(p) and 40 C.F.R. § 122.26(b)(14), and to our practice

of reading statutes to “avoid . . . absurd results.” United

States v. Tatoyan, 474 F.3d 1174, 1181 (9th Cir. 2007).

ERF nonetheless contends that we should read 40 C.F.R.

§ 122.26(b)(14) “expansively” to “include activities

analogous to those listed in the regulation.” For example,

ERF analogizes PG&E’s power grid (including utility poles)

to steam electric power generating facilities, and its electricity

transmission to natural gas transmission. See 40 C.F.R.

22 ECOLOGICAL RIGHTS FOUNDATION V . PG&E

§ 122.26(b)(14)(iii), (vii) (identifying steam power plants and

certain oil and gas transmission facilities as “associated with

industrial activity”). However, power plants are plainly

“industrial plants,” id. § 122.26(b)(14), while power grids are

not, especially given EPA’s decision to exempt “major

electrical powerline corridors” from stormwater regulation,

id. § 122.26(b)(14)(vii). If EPA exempts high voltage

transmission lines and associated towers from NPDES

permits, it makes even less sense to require them for

neighborhood utility poles. As for likening facilities that

transmit electricity to those that convey natural gas,

§ 122.26(b)(14) suggests that it is the substance being

transported—petroleum products—that gives rise to the

regulation. See id. § 122.26(b)(14)(iii) (covering only oil and

gas “transmission facilities that discharge storm water

contaminated by contact with or that has come into contact

with, any overburden, raw material, intermediate products,

finished products, byproducts or waste products located on

the site of such operations”). The same contamination

concerns do not apply to electricity transmission.

Perhaps recognizing how much it asks us to stretch EPA’s

regulation, ERF alternatively contends that we should “find

the regulation invalid as applied to” the defendants’ utility

poles. Even assuming ERF can bring such a claim in a

citizen suit filed under 33 U.S.C. § 1365(a)(1), see Decker,

2013 WL 1131708, *7 (discussing limits imposed by

33 U.S.C. § 1369(b)), ERF offers no reasons to invalidate the

regulation beyond those it offers to apply the regulation to the

defendants’ utility poles. As discussed above, those reasons

lack merit.

Finally, ERF contends that the CWA requires EPA to

regulate stormwater runoff from the defendants’ utility poles

ECOLOGICAL RIGHTS FOUNDATION V . PG&E 23

even if it is not a “discharge associated with industrial

activity.” In other words, EPA must require NPDES permits

for all stormwater discharges. In support, ERF cites NRDC

v. Costle, 568 F.2d 1369, 1374 (D.C. Cir. 1977), in which the

D.C. Circuit stated that “Congress intended the NPDES

permit to be the only means by which a discharger from a

point source may escape the total prohibition of [33 U.S.C.

§ 1311(a)].”

It is impossible, however, to square ERF’s view with the

language of the statute, which Congress amended ten years

after Costle. Section 301(a) bars the discharge of pollutants

“[e]xcept as in compliance with,” among other sections,

§ 402. Section § 402(p)(2), in turn, identifies specific

discharges for regulation in Phase I and then leaves to EPA

the task of promulgating Phase II regulations “which

designate stormwater discharges, other than those discharges

described in paragraph (2), to be regulated to protect water

quality.” 33 U.S.C. § 1342(p)(2), (6). We have repeatedly

explained that this language gives EPA the discretion to

decide which additional stormwater discharges to regulate.

See Brown, 617 F.3d at 1194; Envtl. Def. Ctr., 344 F.3d at

842–43; Am. Mining Cong. v. U.S. EPA, 965 F.2d 759,

765–66 (9th Cir. 1992); see also Conservation Law Found. v.

Hannaford Bros. Co., 327 F. Supp. 2d 325, 330–35 (D. Vt.

2004) (squarely rejecting argument that EPA is required to

regulate all stormwater discharges), aff’d, 139 Fed. Appx. 338

(2d Cir. 2005). In short, because EPA has chosen not to

regulate stormwater runoff from the defendants’ utility poles,

that runoff is in compliance with the CWA, even if it is

discharged without an NPDES permit.

24 ECOLOGICAL RIGHTS FOUNDATION V . PG&E

2. RCRA

A plaintiff must establish three things in an “imminent

and substantial endangerment” citizen suit under RCRA: (1)

the defendant has been or is a generator or transporter of solid

or hazardous waste, or is or has been an operator of a solid or

hazardous waste treatment, storage or disposal facility; (2) the

defendant has “contributed” or “is contributing to” the

handling, storage, treatment, transportation, or disposal of

solid or hazardous waste; and, (3) the solid or hazardous

waste in question may present an imminent and substantial

endangerment to health or the environment. 42 U.S.C.

§ 6972(a)(1)(B); Prisco v. A & D Carting Corp., 168 F.3d

593, 608 (2d Cir. 1999).

ERF alleges that an “imminent and substantial

endangerment” is caused by PCP-based wood preservative

that “leak[s], spill[s], and drip[s]” from the defendants’ utility

poles, and from “[d]ust impregnated with” the preservative

that “is blown into the air during dry seasons.” Because ERF

does not allege that the preservative is “hazardous waste,” the

“crux of the case turns on the issue of whether [that

preservative] is ‘solid waste’ within the meaning of RCRA.”

Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1041 (9th Cir.

2004). We conclude that it is not.

We begin with RCRA’s definition of “solid waste,” which

is “garbage, refuse, sludge from a waste treatment plant,

water supply treatment plant, or air pollution control facility

and other discarded material . . . resulting from industrial,

commercial, mining and agricultural operations, and from

community activities . . . .” 42 U.S.C. § 6903(27); see also

42 U.S.C. § 6901(a)(2) (referring to “scrap, discarded, and

waste materials”). The plain meaning of “discard” is to “‘cast

ECOLOGICAL RIGHTS FOUNDATION V . PG&E 25

aside; reject; abandon; give up.’” Safe Air for Everyone,

373 F.3d at 1041 (quoting 1 The New Shorter Oxford English

Dictionary 684 (4th ed. 1993)); see also Am. Mining Cong. v.

U.S. EPA, 824 F.2d 1177, 1184 (D.C. Cir. 1987) (defining

“discarded” as “‘disposed of,’ ‘thrown away’ or ‘abandoned’”

(citation omitted)). RCRA’s definition of “disposal,” in turn,

is “the discharge, deposit, injection, dumping, spilling,

leaking, or placing of any solid waste or hazardous waste into

or on any land or water.” 42 U.S.C. § 6903(3). These

ambiguous provisions, however, provide little help in

deciding whether “solid waste” includes wood preservative

that escapes from utility poles. See Conn. Coastal

Fishermen’s Ass’n v. Remington Arms Co., Inc., 989 F.2d

1305, 1308 (2d Cir. 1993) (lamenting that “‘solid waste’

plainly means one thing in one part of RCRA and something

entirely different in another part of the same statute”).

Because the statute is ambiguous, we look to RCRA’s

legislative history. See James v. City of Costa Mesa,

700 F.3d 394, 399 n.8 (9th Cir. 2012). Congress enacted

RCRA to “eliminate[ ] the last remaining loophole in

environmental law” by regulating the “disposal of discarded

materials and hazardous wastes.” H.R. Rep. No. 94-1491(I),

at 4 (1976), reprinted in 1976 U.S.C.C.A.N. 6238, 6241.

RCRA was specifically designed to address the “waste

disposal problem,” Am. Mining Cong., 824 F.2d at 1186,

which was, at base, the high “volume of waste being

generated and the capacity to dispose of that waste in the

traditional manner,” H.R. Rep. No. 94-1491(I), at 9.

Accordingly, RCRA covers “waste by-products of the

nation’s manufacturing processes,” as well as manufactured

products

26 ECOLOGICAL RIGHTS FOUNDATION V . PG&E

themselves once they have served their

intended purposes and are no longer wanted

by the consumer. For these reasons the term

discarded materials is used to identify

collectively those substances often referred to

as industrial, municipal or post-consumer

waste; refuse, trash, garbage and sludge.

Id. at 2. The key to whether a manufactured product is a

“solid waste,” then, is whether that product “ha[s] served [its]

intended purpose[ ] and [is] no longer wanted by the

consumer.” Id.; see also No Spray Coal., Inc. v. City of New

York, 252 F.3d 148, 150 (2d Cir. 2001) (“[M]aterial is not

discarded until after it has served its intended purpose.”).

In this case, ERF is concerned not with wood preservative

that is in or on the defendants’ utility poles—which clearly is

being put to its intended use as a general biocide—but with

wood preservative that leaks, spills, or otherwise escapes

from the poles. But such escaping preservative is neither a

manufacturing waste by-product nor a material that the

consumer—in this case, PG&E or Pacific Bell—no longer

wants and has disposed of or thrown away. Thus, we

conclude that PCP-based wood preservative that escapes from

treated utility poles through normal wear and tear, while those

poles are in use, is not automatically a RCRA “solid waste.”8

Our conclusion finds support in the case law, EPA’s

treatment of PCP and other materials under RCRA, and

8

W e do not hold that PCP or wood preservative that is released into the

environment through normal wear and tear can never be a “solid waste”

under RCRA. See infra at 31–32. Our holding in this case turns on the

particular allegations in ERF’s complaint.

ECOLOGICAL RIGHTS FOUNDATION V . PG&E 27

common sense. First, in No Spray Coalition, supra, the

Second Circuit held that “pesticides are not being ‘discarded’

when sprayed into the air with the design of effecting their

intended purpose: reaching and killing mosquitoes and their

larvae.” 252 F.3d at 150; cf. 40 C.F.R. § 261.2(c)(ii)

(providing that certain “commercial chemical

products . . . are not solid wastes if they are applied to the

land and that is their ordinary manner of use”). Like the

pesticides in No Spray Coalition, wood preservative that has

been applied to utility poles to preserve them is being used

for its intended purpose, and is not a RCRA “solid waste.”

ERF, of course, argues that wood preservative that

escapes from utility poles is no longer serving its intended

use. But the same can be said of airborne pesticide that drifts

beyond its intended target after killing insects. Whatever

other liability the pesticide sprayer may have in such a

circumstance, we would not ordinarily consider the pesticide

as having been “discarded.” Indeed, like pesticide applied to

a field, preservative that falls to the base of a utility pole still

serves its intended purpose by inhibiting the growth of

vegetation, fungi, and other organisms. Thus, like other non-

hazardous materials, wood preservative that is washed or

blown away from utility poles by natural means, as an

expected consequence of the preservative’s intended use, has

not been “discarded.”

Second, EPA treats spent munitions under RCRA in the

same way—as not having been “discarded” through their

normal use:9

9

EPA’s regulatory definition of “solid waste,” 40 C.F.R. § 261.2,

applies only to “hazardous waste,” a sub-category of “solid waste,” and

thus defines “solid waste” more narrowly than RCRA. See 42 U.S.C.

28 ECOLOGICAL RIGHTS FOUNDATION V . PG&E

EPA disagrees . . . that munitions are a “solid

waste” when they hit the ground because they

have no further function, unlike pesticides,

which continue to have a function on the

ground. EPA’s interpretation focuses on

whether a product was used as it was intended

to be used, not on whether the purpose of the

product is to perform some function once on

the ground. For example, the use of

explosives (e.g., dynamite) for road clearing,

construction, or mining does not trigger

RCRA regulation, even though any residuals

on the ground serve no further function.

Therefore, the Agency is maintaining its

position that munitions that are fired are

products used for their intended purpose, even

when they hit the ground since hitting the

ground is a normal expectation for their use.

Military Munitions Rule: Hazardous Waste Identification and

Management; Explosives Emergencies; Manifest Exemption

§ 6903(27); 40 C.F.R. §§ 261.1(b)(1), 261.2(a)(2)(i)(A), (2)(b), 262.3;

Military Toxics Project v. EPA, 146 F.3d 948, 951 (D.C. Cir. 1998)

(explaining that RCRA’s statutory definition of “solid waste” governs

imminent endangerment suits). However, we have previously found

EPA’s application of its regulations relevant when construing the statutory

definition of “solid waste.” See Safe Air for Everyone, 373 F.3d at 1046

n.14 (explaining that, in evaluating whether agricultural grass residue was

a “solid waste” under RCRA, it was proper to look to cases applying

EPA’s regulatory definition, as “challenges to EPA’s regulation of

particular items . . . necessarily address whether those items were within

RCRA’s statutory definition of ‘solid waste’ as ‘discarded material,’ the

same definition at issue here”).

ECOLOGICAL RIGHTS FOUNDATION V . PG&E 29

for Transport of Hazardous Waste on Right-of-Ways on

Contiguous Properties, 62 Fed. Reg. 6,622, 6,630 (Feb. 12,

1997) (codified at 40 C.F.R. § 266.202).

Third, in 2008, EPA approved the use of PCP under the

Federal Insecticide, Fungicide, and Rodenticide Act

(“FIFRA”), 7 U.S.C. §§ 136–136y, as a wood preservative for

utility poles, railroad ties, and pilings. As part of the

approval process, EPA studied the available literature

regarding PCP, assessed its potential hazards, and solicited

public comments. EPA explained that PCP, despite being

present in roughly 36 million utility poles across the country,

presented no “unreasonable adverse risks to humans or the

environment,” with no expected “dietary or drinking water

exposures based on the registered use patterns.” It would be

odd for EPA to approve PCP-based wood preservative for use

in utility poles under FIFRA if the agency believed that

preservative put to that use and expectedly released from the

poles was a “solid waste” under RCRA.

Fourth, under RCRA, EPA does regulate as “hazardous”

(and thus “solid”) waste:

• “Wastes” from PCP manufacturing processes;

• “Discarded unused formulations” containing PCP;

• “Wastewaters . . . , process residuals, preservative

drippage, and spent formulations from wood

preserving processes generated at [wood treatment]

plants that currently use or have previously used”

PCP; and

30 ECOLOGICAL RIGHTS FOUNDATION V . PG&E

• “Bottom sediment sludge from the treatment of

wastewaters from wood preserving processes that use

creosote and/or [PCP].”

40 C.F.R. § 261.31(a)(Table – F021, F027, F032), 261.32

(Table – K001). However, EPA does not regulate “those

[PCP] formulations which are used,” including “[PCP] which

is impregnated in treated wood (e.g., posts, poles, and railroad

ties)” and “dirt contaminated with PCP, . . . unless the

contamination were the result of a spill of unused PCP.” U.S.

EPA, “Regulatory Status of Various Types of

Pentachlorophenol Wastes,” RCRA Online No. 11256 (June

19, 1987), available at http://yosemite.epa.gov/osw/rcra.nsf

/0c994248c239947e85256d090071175f/b30c860b7bf78f3f

8525670f006bd7ef!OpenDocument (last visited March 27,

2013).

We recognize that EPA’s decision not to regulate PCP-

based preservative that drips from treated wooden utility

poles as “hazardous waste” does not by itself mean the

substance is not a “solid waste” under RCRA, since EPA’s

regulatory definition of “solid waste” is narrower than the

statutory definition. See supra at 27–28 n.9. However, in the

absence of a more definitive statement from EPA, its

treatment of PCP and wood preservatives generally supports

our conclusion that PCP-based wood preservative that

escapes from utility poles through normal wear and tear,

while those poles are in use, is not a RCRA “solid waste.”

Finally, common sense compels what RCRA, the case

law, and EPA regulations and guidance imply. As with

ERF’s CWA claim, accepting ERF’s characterization of

preservative that seeps from wooden utility poles as a RCRA

“solid waste” would lead to untenable results. As of 2008,

ECOLOGICAL RIGHTS FOUNDATION V . PG&E 31

there were 36 million utility-owned wood poles in service

across the United States that have been treated with PCP. It

defies reason to suggest that each of those poles, while in use,

is producing “solid waste” under RCRA, and thus must be

replaced. Indeed, if ERF is correct, everything from wood

preservative that leaches from railroad ties to lead paint that

naturally chips away from houses10 would be “solid waste,”

and thus potentially actionable under 42 U.S.C.

§ 6972(a)(1)(B). Absent contrary EPA guidance to which we

might defer, the more tenable reading of RCRA is the one we

have given it: PCP-based wood preservative that is released

into the environment as a natural, expected consequence of its

intended use—as a preservative for wooden utility poles—is

not automatically “solid waste” under RCRA’s definition of

that term.

We include the word “automatically” to reflect what we

are not deciding today. Because ERF does not allege that

dangerous accumulations of PCP have resulted from the

natural discharge of wood preservative from the defendants’

utility poles, we do not decide whether or under what

circumstances PCP, wood preservative, or another material

becomes a RCRA “solid waste” when it accumulates in the

environment as a natural, expected consequence of the

10

EPA is considering regulating lead-based paint debris under a

different statute, but RCRA remains the current management tool. See

40 C.F.R. §§ 257.2, 258.2 (defining “lead-based paint waste”); U.S. EPA,

Regulatory Status of W aste Generated by Contractors and Residents from

Lead-Based Paint Activities Conducted in Households, available at

http://www.epa.gov/lead/fslbp.html (Aug. 2000) (last visited March 27,

2013). Notably, EPA regulates lead-based paint waste generated and

disposed of during residential construction and refurbishment activities,

see id., but not lead-based paint that falls from houses through ordinary

wear and tear.

32 ECOLOGICAL RIGHTS FOUNDATION V . PG&E

material’s intended use. See U.S. EPA, Best Management

Practices for Lead at Outdoor Shooting Ranges,

EPA-902-B-01-001, at I-8 (June 2005) available at

http://www.epa.gov/lead/pubs/epa_bmp.pdf (last visited

March 27, 2013) (“[S]pent lead shot (or bullets), left in the

environment, is subject to the broader definition of solid

waste written by Congress.”); Conn. Coastal Fishermen’s

Ass’n, 989 F.2d at 1316 (holding that materials “left to

accumulate long after they ha[d] served their intended

purpose”—specifically, five million pounds of lead bullets

and 11 million pounds of clay target debris accumulated for

nearly 70 years at a firing range—met RCRA’s statutory

definition of “solid waste” (quotation marks omitted));

Benjamin v. Douglas Ridge Rifle Club, 673 F. Supp. 2d 1210,

1222 (D. Or. 2009) (reaching same conclusion with respect to

lead shot that had accumulated at a firing range since 1955).

In this case we decide only that wood preservative that

escapes from wooden utility poles as those poles age has not

itself been “discarded,” and therefore is not a “solid waste,”

under RCRA.

B. Dismissal under Rule 12(b)(1)

PG&E argues that dismissal of ERF’s complaint was

alternatively appropriate because ERF’s allegations are

insufficient on their face to invoke federal subject-matter

jurisdiction. See Fed. R. Civ. P. 12(b)(1); Wolfe v.

Strankman, 392 F.3d 358, 362 (9th Cir. 2004). PG&E argues

that ERF’s pre-suit notice letters did not identify the location

of each utility pole at issue, and that ERF could not use its

January 2010 notice letter to “supplement” the claims set

forth in ERF’s June 2009 notice letter and first amended

complaint. The district court concluded that PG&E’s

ECOLOGICAL RIGHTS FOUNDATION V . PG&E 33

argument lacked merit. See Ecological Rights Found., 803 F.

Supp. 2d at 1060–61. We agree.

Pursuant to EPA regulations, the CWA requires that a

notice

shall include sufficient information to permit

the recipient to identify the specific standard,

limitation, or order alleged to have been

violated, the activity alleged to constitute a

violation, the person or persons responsible

for the alleged violation, the location of the

alleged violation, the date or dates of such

violation, and the full name, address, and

telephone number of the person giving notice.

40 C.F.R. § 135.3(a). RCRA imposes almost identical

requirements. See id. § 254.3(a). ERF’s notices provided

such “sufficient information.” ERF’s June 2009 notice letter

stated that it

pertains to each and every Pole located in San

Francisco, Alameda, Contra Costa, and Marin

counties, to the extent the Pole has been

treated with the above-referenced oil-

pentachlorophenol mixture. PG&E maintains

an extensive database with information about

the treatment method used on every Pole it

owns. . . . Given PG&E’s ownership, control

and usage of the Poles, PG&E knows the

location of each of these Poles. These Poles

include, but are not limited to, the Poles

identified in the attached Exhibits A and B.

The itemization of Poles in Exhibits A and B

34 ECOLOGICAL RIGHTS FOUNDATION V . PG&E

are provided by way of example to illustrate

ERF’s concern with the Poles; there are

thousands of additional Poles that have been

treated with the above-referenced oil-

pentachlorophenol mixture and to which this

Notice pertains.

In arguing that ERF’s notices were insufficient, PG&E

reads the relevant regulations—in particular, the requirement

that a notice identify “the location of the alleged

violation”—too literally. We have explained that,

as long as a notice letter is reasonably specific

as to the nature and time of the alleged

violations, the plaintiff has fulfilled the notice

requirement. The letter does not need to

describe every detail of every violation; it

need only provide enough information that the

defendant can identify and correct the

problem.

San Francisco Baykeeper, Inc. v. Tosco Corp., 309 F.3d

1153, 1155 (9th Cir. 2002); see also Cmty. Ass’n for

Restoration of the Env’t, 305 F.3d at 951 (“Neither the CWA

nor the EPA’s regulations require plaintiffs to provide an

exhaustive list of all violations.”). ERF’s notice that

preservative-treated utility poles owned by PG&E and/or

other entities in four counties allegedly discharged pollutants

during days of significant precipitation was sufficient to

advise PG&E of ERF’s claims, especially where ERF

identified representative poles and referenced PG&E’s

superior ability to ascertain the locations of other poles that

might be at issue. See San Francisco Baykeeper, 309 F.3d at

1158 (“Tosco is obviously in a better position than

ECOLOGICAL RIGHTS FOUNDATION V . PG&E 35

BayKeeper to identify the exact dates, or additional dates, of

its own ship loading.”); Paolino v. JF Realty, LLC, — F.3d

— , 2013 WL 951257, at *4 (1st Cir. Mar. 13, 2013) (“[T]he

appropriate measure of sufficiency under § 135.3(a) is

whether the notice’s contents place the defendant in a

position to remedy the violations alleged.”).

PG&E’s second argument—that ERF could not rely on its

third notice letter and second amended complaint to cure its

deficient initial notice letter and complaint—also is

unpersuasive. One, PG&E did not raise this argument in its

Rule 12(b)(1) motion. Two, as discussed above, ERF’s

notice letters were not deficient. Three, the only differences

between ERF’s first and third notice letters were that the third

letter added responsible parties and discussed poles treated

with any chemical preservative, not just PCP. Yet ERF’s

second amended complaint is concerned only with PCP-

treated poles. Finally, ERF sent its third notice letter on

January 6, 2010, but did not file its second amended

complaint until June 21, 2010. PG&E cannot complain that

it did not have time to decide whether and how to respond to

ERF’s allegations. See Ctr. for Biological Diversity,

566 F.3d at 800–01 (explaining that the purpose of the notice

requirement is to allow an alleged violator the opportunity to

comply with the law).

C. Dismissal without leave to amend

ERF argues that it should be allowed to amend its

complaint to allege that (1) the defendants’ utility poles

discharge wood preservative directly into waters of the

United States; (2) preservative-contaminated stormwater

discharges from the utility poles “flows into storm drains,

ditches, and culverts and from these conveyances into waters

36 ECOLOGICAL RIGHTS FOUNDATION V . PG&E

of the United States;” and (3) certain conduct, such as

brushing up against and drilling holes into the utility poles,

causes preservative-laden “waste” to be “deposited into the

environment.”

We consider five factors in assessing whether a district

court abuses its discretion in dismissing a complaint without

leave to amend: “bad faith, undue delay, prejudice to the

opposing party, futility of amendment, and whether the

plaintiff has previously amended the complaint.” United

States v. Corinthian Colleges, 655 F.3d 984, 995 (9th Cir.

2011). Although a district court “should freely give leave [to

amend] when justice so requires,” Fed. R. Civ. P. 15(a)(2),

the court’s discretion to deny such leave is “particularly

broad” where the plaintiff has previously amended its

complaint, Miller v. Yokohama Tire Corp., 358 F.3d 616, 622

(9th Cir. 2004) (quotation marks omitted).

Here, there is no evidence of bad faith or risk of

prejudice, but there have been undue delay and previous

amendments. As discussed above, ERF did not raise its

additional allegations until this appeal, despite twice

amending its complaint. However, ERF’s biggest obstacle is

futility. Regarding the CWA, first, because ERF’s notice

letters do not allege that the defendants’ utility poles directly

discharge wood preservative into waters of the United States,

ERF cannot assert that claim in this lawsuit. Second, even if

ERF had alleged that stormwater discharges from the utility

poles are collected and then conveyed to waters of the United

States, such discharges are not “associated with industrial

activity.” Regarding RCRA, a claim that preservative-laden

pieces or shavings from utility poles are dislodged when

people brush up against or drill into utility poles still involves

a release that is a natural, expected consequence of the

ECOLOGICAL RIGHTS FOUNDATION V . PG&E 37

preservative’s intended use; such pieces or shavings therefore

are not discarded “solid waste” under RCRA.

ERF already had three chances to assert its claims, and no

claim that ERF has asserted or could assert on remand is a

claim upon which relief may be granted under the CWA or

RCRA. Cf. Jewel v. Nat’l Sec. Agency, 673 F.3d 902, 907 n.3

(9th Cir. 2011) (“Dismissal without leave to amend is

improper unless it is clear, upon de novo review, that the

complaint could not be saved by any amendment.” (quotation

marks omitted)). Dismissal without leave to amend therefore

was appropriate.

AFFIRMED.

HURWITZ, Circuit Judge, concurring in part and concurring

in the result:

I concur in the majority opinion except insofar as it holds

that utility poles cannot be point sources for purposes of the

Clean Water Act under circumstances not presented by this

case. See supra pp. 11–16. Resolution of this difficult issue

is entirely unnecessary, given the opinion’s conclusion –

which I join – that the defendants’ utility poles are not

“associated with industrial activity.” See supra pp. 18–23.