Ecological Rights Foundation v. Pacificorp

Background

Ecological Rights Foundation, which the opinion calls EcoRights, sued PacifiCorp and Pacific Power under the Clean Water Act and the Resource Conservation and Recovery Act. The defendants filed a motion to dismiss EcoRights’s first amended complaint under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint states a legally sufficient claim. Although the motion referenced Rule 12(b)(1), which concerns subject-matter jurisdiction, the court noted that the defendants presented no jurisdictional argument.

EcoRights alleged that PacifiCorp operates the Crescent City Facility, where it stores new and used treated utility poles, cross-arms, and treated wood waste outdoors. The materials allegedly contain wood preservatives and related chemicals. EcoRights also alleged that vehicle maintenance, fueling, and outdoor storage of construction materials produce pollutants. According to the complaint, stormwater carries these pollutants through the facility’s drainage systems into waters including Elk Creek, wetlands, Crescent City Harbor, and the Pacific Ocean. EcoRights separately alleged that the materials contaminate soil and groundwater and spread through vehicle and foot traffic, wind, sweeping, power washing, and other processes.

Clean Water Act claim

The court explained that a Clean Water Act claim generally requires allegations of an ongoing addition of a pollutant to navigable waters from a point source without a required permit, along with allegations that the stormwater discharge falls within a regulated industrial or municipal category. PacifiCorp initially challenged whether EcoRights had adequately alleged a point source but later conceded that point sources had been alleged. The court therefore denied the motion on that ground.

PacifiCorp argued that the facility’s discharges were covered by Crescent City’s municipal storm sewer permit and did not require a separate industrial stormwater permit. The court rejected that argument at the pleading stage. It concluded that the Clean Water Act, its implementing regulations, and the municipal permit indicated that an industrial facility may need an independent permit even when the city has a municipal permit. The court did not dismiss the complaint based on the municipal permit.

PacifiCorp also argued that EcoRights had not plausibly alleged that the facility involved regulated industrial activity. The court found that the complaint described recycling, motor-vehicle maintenance, sand-and-gravel handling, material handling, and raw-material storage, and alleged that some of these activities could be primary industrial activities. The court held that PacifiCorp’s factual disagreement about the facility’s primary activity could not be resolved on a motion to dismiss. It also held that the complaint sufficiently alleged that the facility’s activities generated stormwater associated with industrial activity, and denied the motion on these grounds.

Resource Conservation and Recovery Act claim

The court stated that a citizen claim under the Resource Conservation and Recovery Act requires allegations that the defendant contributed to handling, storage, treatment, transportation, or disposal of solid or hazardous waste that may present an imminent and substantial endangerment to health or the environment.

PacifiCorp argued that EcoRights waived its Resource Conservation and Recovery Act claims by omitting them from the original complaint. EcoRights had served a notice of intent to sue and later amended its complaint as a matter of right after PacifiCorp filed its earlier motion to dismiss. The court rejected the waiver argument, explaining that Federal Rule of Civil Procedure 15 permitted the amendment and that PacifiCorp cited no authority supporting waiver. The court denied the motion on this ground.

PacifiCorp argued that EcoRights had not alleged active involvement in storage, transport, or disposal of hazardous substances. The court held that allegations that PacifiCorp used, stored, and moved the poles and treated wood waste, releasing the associated waste into the environment, were sufficient at this stage to allege active involvement in or some control over the waste-disposal process. The court denied the motion on this ground.

PacifiCorp also argued that the wood-treatment materials were not “solid waste” because they were point-source industrial discharges potentially subject to Clean Water Act permits and because the preservatives continued to serve their intended purpose. The court rejected the first argument because the complaint alleged pollution beyond permitted point-source stormwater discharges, including contamination of soil and groundwater and releases through tracking, wind, and other processes. On the intended-purpose argument, the court focused on preservatives associated with out-of-service poles, cross-arms, sawdust, splinters, and wood chips. It held that EcoRights plausibly alleged that some of these materials had been abandoned or cast aside, creating at least a factual dispute about whether the materials were discarded. The court denied the motion on this ground.

PacifiCorp argued that EcoRights had not adequately alleged an imminent and substantial endangerment because no regulator had made such a finding. The court found that the complaint sufficiently alleged endangerment to human health or the environment and noted that PacifiCorp cited no authority requiring an investigation or violation notice from the California Department of Toxic Substances Control or another regulator.

Finally, PacifiCorp argued that the Resource Conservation and Recovery Act claim duplicated the Clean Water Act claim. The court explained that the Resource Conservation and Recovery Act’s anti-duplication provision bars its application only when applying it would contradict a specific Clean Water Act requirement. Because PacifiCorp had not shown at this stage that the two statutes were inconsistent, the court denied the motion with respect to anti-duplication.

Disposition

The court denied PacifiCorp’s motion to dismiss in its entirety. The opinion did not resolve the ultimate truth of the allegations; it held that EcoRights’s first amended complaint adequately stated its Clean Water Act and Resource Conservation and Recovery Act claims for purposes of proceeding beyond the dismissal stage.