Ninth Circuit touches novel CWA and RCRA claims with a forty-foot pole

Last month, an environmental organization testing the bounds of the reach of the Clean Water Act (CWA) and the Resource Conservation and Recovery Act (RCRA) ran into a brick wall wooden pole when the U.S. Court of Appeals for the Ninth Circuit affirmed the dismissal of novel claims that discharges of wood preservative from utility poles violate the CWA and RCRA.

In Ecological Rights Foundation v. Pacific Gas & Electric Co., et al., No. 11-16042 (9th Cir.), the Ecological Rights Foundation (ERF) filed a citizen suit against several companies that own and maintain utility poles that are treated with a wood preservative containing pentachlorophenol (PCP) and other chemicals.  The suit alleged that the poles are discharging these substances into the environment in violation of the CWA and RCRA.

The CWA Claim

In its CWA claim, ERF alleged that the wood preservative contaminates stormwater that runs off of the utility poles and enters the San Francisco Bay, its tributaries and adjacent wetlands.  ERF argued that the companies that own and maintain these poles are violating the CWA by discharging polluted stormwater runoff from the utility poles into waters of the United States without an NPDES permit.

The Court rejected this argument, finding that stormwater discharges from utility poles are not point source discharges requiring an NPDES permit.  Because it determined that the CWA is ambiguous as to whether utility poles can qualify as “conveyances,” and because EPA has not itself weighed in on the subject, the Court examined existing case law, where it found no support for the characterization of utility poles as point sources.  The Court concluded that “utility poles simply are not ‘discernible, confined and discrete conveyance[s]’ that ‘channel[ ] and control[ ] stormwater.'”

The Court also found that ERF had waived two other arguments made for the first time on appeal: (1) that the utility poles discharge directly into waters of the United States when preservatives drip directly from the poles into marshes, and (2) that the stormwater runoff from the poles is collected in other conveyances that then discharge to waters of the United States.  The Court then foreclosed the possibility of curing this defect with a new notice letter and complaint by providing an additional independent basis for its dismissal of ERF’s claim.

Relying heavily on the recent U.S. Supreme Court decision in Decker v. Northwest Environmental Defense Center that we previously discussed here, the Ninth Circuit concluded that stormwater runoff from the utility poles is not “associated with industrial activity.”  In support of this conclusion, the Court found that stormwater runoff from utility poles, not unlike stormwater runoff from logging roads, is not “directly related to manufacturing, processing or raw materials storage at an industrial plant.”  The Court also noted that utility poles are not encompassed by any of the Standard Industrial Classification codes the stormwater regulations use to define covered industrial activities, and that EPA expressly rejected including major powerline corridors in the definition of “industrial activity.”

The RCRA Claim

In its RCRA claim, ERF alleged that wood preservative that “leak[s], spill[s], and drip[s]” from the utility poles and that combines with dust that “is blown into the air during dry seasons” causes an “imminent and substantial endangerment.”

Because the Court found RCRA to be ambiguous on the question of whether such wood preservative is a “solid waste,” it undertook an analysis of RCRA’s legislative history. From that analysis, the Court determined that “[t]he key to whether a manufactured product [like wood preservative] is a ‘solid waste’ . . . is whether that product ‘ha[s] served [its] intended purpose[ ] and [is] no longer wanted by the consumer.'”

Applying that standard, the Court concluded that wood preservative that escapes from wooden utility poles is neither a manufacturing waste by-product nor a material that the consumer no longer wants and has disposed of or thrown away.  The Court found support for that conclusion in EPA’s treatment of PCP and other materials under RCRA.

First, the Court analogized wood preservative that escapes from treated utility poles that are in use to airborne pesticides that drift beyond their intended target and spent munitions that hit the ground after being fired, neither of which is treated as having been “discarded.”  The Court also found instructive both that EPA approved PCP-based wood preservative for use in utility poles under FIFRA and that the agency did not regulate such preservative that drips from treated wooden utility poles as a “hazardous waste” under RCRA.

Although deciding that wood preservative that escapes from wooden utility poles as those poles age has not itself been “discarded,” the Court left open the possibility that under other circumstances (e.g., if it accumulated in the environment in dangerous levels as an expected consequence of an intended use), wood preservative could become a RCRA “solid waste.”

Closing Remarks

The Ecological Rights Foundation opinion provides assistance in delineating the boundaries of the CWA term “point source discharge” and the RCRA term “solid waste.”  The Ninth Circuit was mindful of how a decision that utility poles are conveyances might expand the universe of regulated point sources under the CWA (“playground equipment, bike racks, mailboxes, traffic lights, billboards, and street signs”), as well as how a decision that utility poles are producing solid waste might expand the universe of regulated solid waste under RCRA (“everything from wood preservative that leaches from railroad ties to lead paint that naturally chips away from houses”).  The Court adopted a more measured approach and declined the invitation by ERF to expand the reach of the CWA and RCRA.