Ecological Rights Foundation v. Pacific Gas & Electric Company

Case Updates

The Ninth Circuit affirmed the dismissal of plaintiff's citizen suit alleging that utility poles discharged wood preservative into the environment in violation of the CWA and RCRA. The panel held that the plaintiff failed to state a claim under the CWA because discharges of storm water from the utility poles were neither “point source discharge” nor “associated with industrial activity.” The plaintiff failed to state a claim under RCRA because wood preservative that escaped from the utility poles was not a “solid waste.”

NCLC urged the Ninth Circuit Court to hold that chemically preserved wood utility poles are not subject to regulation under the Clean Water Act (CWA) or the Resource Conservation and Recovery Act (RCRA). In this case, the Ecological Rights Foundation (ERF) sued the Pacific Gas & Electric Company (PG&E) alleging that treated poles used to construct power lines across Northern California were leaking preservatives harmful to the environment in violation of the CWA and RCRA.

In its amicus brief, NCLC argued that the chemical used to preserve the poles, Pentachlorophenol, was approved by the EPA for that purpose. Furthermore, wooden utility poles do not constitute “point sources” and so are not subject to regulation under the CWA. Nor do the poles discharge “solid waste,” and so are not subject to the RCRA. NCLC urged the court to uphold a lower court’s decision rejecting the ERF’s arguments. Although this case deals specifically with wooden utility poles, the broader issue of when RCRA and CWA permitting requirements are triggered for materials that could possibly release chemicals into the environment during the normal course of their intended use could affect a wide range of industries, including homebuilding, agriculture, railroad, and others.