The Ninth Circuit Court of Appeals has dismissed a citizen suit claiming that Pacific Gas & Electric Co. and Pacific Bell Telephone Co. violated the Clean Water Act (CWA) and Resource Conservation and Recovery Act (RCRA) “by releasing into the environment wood preservative from . . . utility poles” in four California counties. Ecological Rights Found. v. Pac. Gas & Elec. Co., No. 11-16042 (9th Cir. 4/3/13).
According to the court, plaintiff failed to establish that the defendants added a pollutant to waters of the United States from a “point source,” or that the poles themselves constituted point sources, which could be regulated under the CWA’s direct discharge authority. The court also held that stormwater runoff from utility poles is not “associated with industrial activities” and thus is not within the U.S. Environmental Protection Agency’s stormwater authority.
The court upheld the dismissal of plaintiff’s RCRA claim, which alleged that PCPbased preservatives leak, spill and drip from the poles, contaminating soil and also causing air emissions when contaminated dust blows. The court concluded that wood preservative which escapes the poles “is neither a manufacturing waste by-product nor a material that the Consumer . . . no longer wants and has disposed of or thrown away.”