SAN FRANCISCO -- The U.S. Court of Appeals for the Ninth Circuit has reversed a lower court ruling in part but also affirmed part of the ruling in a case against Pacific Gas & Electric Company over contaminated water discharge. 

Ecological Rights Foundation (ERF) v. Pacific Gas & Electric Company (PG&E) was originally filed in the U.S. District Court for the Northern District of California. It was argued Feb. 17, before circuit judges Marsha S. Berzon and Richard R. Clifton with Kimberly J. Mueller,  U.S. district judge for the Eastern District of California, sitting by designation. Berzon's opinion was filed Nov. 2.

This lawsuit was brought by the ERF under the Resource Conservation and Recovery Act because PG&E allows stormwater to be discharged containing wood treatment chemicals used on power poles. The stormwater containing the chemicals is released into San Francisco and Humboldt Bays. 

In reaching its decision, the appellate court opinion noted, “Our principal question is whether the citizen suit provision of a different statute, the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. §§ 6901 et seq., may be applied to limit such discharges, or whether RCRA’s “anti-duplication” provision, 42 U.S.C. § 6905(a), precludes RCRA’s application because of EPA’s un-exercised authority to regulate the discharges. The district court determined RCRA’s anti-duplication provision does preclude that statute’s application to the stormwater discharges here at issue. We do not agree” 

Matt Nauman spokesman for PG&E, told the Northern California Record, “The health and safety of our customers and the public is our top priority. We are aware of the court’s decision. We’re reviewing it and evaluating our next steps.”

The Clean Water Act of 1972 prohibits discharges of pollutants into navigable waters of the United States. Stormwater was exempted from that law, and PG&E was exempted from getting a permit to allow it to put chemicals in the water.

The Resource Conservation and Recovery Act (RCRA) focuses on the storage, disposal, and treatment of hazardous waste. It allows for lawsuits “...against a person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.” 

The RCRA does not supersede the Clean Water Act. The appellate court ruled the district court erred in applying the RCRA anti-duplication provision.

The appellate court concluded its opinion by noting: “PG&E has failed to identify any legal requirements under municipal permits applicable to it and inconsistent with EcoRights’ requested RCRA relief. We, therefore, reverse the district court’s grant of summary judgment to PG&E and denial of summary judgment to EcoRights with respect to the stormwater pathway. We remand for the district court to consider EcoRights’ arguments with respect to the stormwater pathway that the relevant wastes are “solid wastes” and that PG&E’s actions present an imminent and substantial endangerment to health or the environment under RCRA. 

"Finally, we affirm the district court’s grant of partial summary judgment as to the tire-tracking pathway.”

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