Apr 3: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-16042. Appealed from the United States District Court for the Northern District of California. In this case 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.
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 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) and the Resource Conservation and Recovery Act.
The Appeals Court summarizes the case saying, "The district court, which had jurisdiction. . . 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."
In the CWA part of the case, ERF argues that utility poles are themselves "conveyances." In other words, ERF contends that "point sources" are not just "ditches, culverts, and similar channels," but any "tangible, identifiable thing." The Appeals Court indicates, ". . . EPA has not yet determined whether utility poles are point sources; until EPA addresses that question, we look to cases for guidance. . . The case law does not support ERF's attempt to characterize the poles as point sources. . . 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."
The Appeals Court also indicates that, ". . .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. . . .'"
On the RCRA issue, 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." The Appeals Court says, "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. . . We conclude that it is not."
On the RCRA issue, the Appeals Court concludes, ". . .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, 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 houses would be 'solid waste,' and thus potentially actionable. . .
"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."
Access the complete opinion (click here). [#Water, #Haz, #CA9]
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