Ninth Circuit Holds Wood Preservative from Utility Poles Discharged into the Environment does not Violate the Clean Water Act or RCRA

In Ecological Rights Foundation v. Pacific Gas and Electric Company, 713 F.3d 502 (9^th Cir. April 3, 2013), the Ninth Circuit panel affirmed the dismissal of a citizen suit alleging utility poles discharged wood preservative containing pentachlorophenol (“PCP”) into the environment in violation of the Resource Conservation and Recovery Act (“RCRA”) and the Clean Water Act (“CWA”). Based on the allegations of the complaint, the court held PCP-based wood preservative that escapes the poles was not a “solid waste” under RCRA. It also held stormwater runoff from the utility poles was neither a “point source discharge” nor “associated with industrial activity,” and therefore does not violate the CWA.

Preservative that escapes through “normal wear and tear” is not “solid waste” under RCRA

To establish an “imminent and substantial endangerment” citizen suit under RCRA, a plaintiff must establish three things: (1) the defendant has been or is a generator or transporter of solid or hazardous waste, or is or has been an operator of a solid or hazardous waste treatment, storage or disposal facility; (2) the defendant has “contributed” or “is contributing to” the handling, storage, treatment, transportation, or disposal of solid or hazardous waste; and, (3) the solid or hazardous waste in question may present an imminent and substantial endangerment to health or the environment. 42 U.S.C. § 6972(a)(1)(B). In this case, which focused on the third prong, the Ecological Rights Foundation (“ERF”) did not allege the PCP-based wood preservative at issue is “hazardous waste.” Therefore, the Ninth Circuit found the case turned on the issue of whether that preservative is “solid waste” within the meaning of RCRA.

The Ninth Circuit found RCRA’s statutory definitions of “solid waste” and “disposal” were too ambiguous to help decide whether “solid waste” includes wood preservative that escapes from utility poles. 42 U.S.C. §§ 6909(3) and (27); see also 42 U.S.C. § 6901(a)(2). The court then turned to RCRA’s legislative history, and found “RCRA covers ‘waste by-products of the nation’s manufacturing processes,’ as well as manufactured products ‘themselves once they have served their intended purposes and are no longer wanted by the consumer.’” ERF v. PG&E, 713 F.3d at 515, citing H.R. Rep. No. 94-1491(I), at 2.

The court explained ERF was concerned not with wood preservative that is in or on the utility poles, because there the preservative is clearly being put to its intended use as a general biocide. Instead, ERF was concerned with wood preservative that leaks from or otherwise escapes the utility poles. The Ninth Circuit held such escaping preservative is neither a manufacturing waste by-product nor a material that the consumer (in this case defendants PG&E and Pacific Bell as owners of the utility poles) no longer wants and has disposed of or thrown away. The Ninth Circuit concluded PCP-based wood preservative that escapes from treated utility poles through normal wear and tear, while the poles are in use, is not “automatically” a RCRA “solid waste.”[1]

The court supported its holding by citing a Second Circuit opinion which held pesticides are not being “discarded” when sprayed into the air consistent with their intended purpose. ERF v. PG&E, 713 F.3d at 515-516, citing No Spray Coal., Inc. v. City of New York, 252 F.3d 148, 150 (2d Cir. 2001). The Ninth Circuit explained that, like the pesticide example, the application of wood preservative to utility poles furthers the intended purpose of those poles. While ERF argued wood preservative that escapes from utility poles is no longer serving its intended use, the court disagreed, reasoning wood preservative that falls to the base of a utility pole still serves its intended purpose by inhibiting the growth of vegetation, fungi, and other organisms. The court further supported its decision by noting EPA treats spent munitions under RCRA in the same way – as having served their intended purpose rather than being discarded, citing Military Munitions Rule: Hazardous Waste Identification and Management; Explosives Emergencies; Manifest Exemption for Transport of Hazardous Waste on Right-of-Ways on Contiguous Properties, 62 Fed. Reg. 6,622, 6,630 (Feb. 12, 1997) (codified at 40 C.F.R. § 266.202). In addition, the Ninth Circuit noted EPA approved the use of PCP as a wood preservative for utility poles, railroad ties and pilings under the Federal Insecticide, Fungicide, and Rodenticide Act while regulating certain categories of materials containing PCP, including “wastes” from PCP manufacturing processes and discarded unused formulations containing PCP. ERF v. PG&E, 713 F.3d at 516-517, citing 7 U.S.C. §§ 131-136y; 40 C.F.R. § 261.31(a)(Table — F021, F027, F032), 261.32 (Table — K001).

Finally, the Ninth Circuit stated “common sense” compels its decision because accepting ERF’s argument would lead to untenable results. The court noted that as of 2008, there were 36 million utility-owned wood poles in the United States treated with PCP, so requiring their replacement defies reason. In fact, accepting the plaintiff’s argument might lead to extreme results as everything from railroad ties to lead paint that naturally chips away from houses could also qualify as “solid waste” and thus be potentially actionable under RCRA.

However, while the Ninth Circuit expressly decided “wood preservative that escapes from wooden utility poles as those poles age has not itself been ‘discarded’ and therefore is not a ‘solid waste,’ under RCRA” it also suggested different allegations could lead to a different result: “we do not decide whether or under what circumstances PCP, wood preservative, or another material becomes a RCRA ‘solid waste’ when it accumulates in the environment as a natural, expected consequence of the material’s intended use.” ERF v. PG&E, 713 F.3d at 518.

Utility poles are not “point sources” or “associated with industrial activity” under CWA

Under the CWA, a “point source” is defined as any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, . . or vessel or other floating craft, from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14). The Ninth Circuit found the ERF allegations of generalized stormwater runoff were insufficient to establish that the utility poles were point sources and rejected ERF’s argument the utility poles are themselves “conveyances” as unsupported by case law. The court noted ERF failed to allege the PCP-based preservative went directly into the waters of the United States or flowed into discrete conveyances and, from there, into the waters of the United States, and the court upheld the district court’s dismissal without leave to amend to add these allegations. As a result, it is unknown what impact such allegations would have had on the Ninth Circuit’s ruling.

The Ninth Circuit also found dismissal of the CWA claim proper as stormwater runoff from the utility poles is not “associated with industrial activity” for four reasons. First, a utility pole is not directly related to manufacturing, processing or raw materials storage at an industrial plant. 40 C.F.R. § 122.26(b)(14). In reaching this holding, the Ninth Circuit applied Decker v. Northwest Envtl. Def. Ctr., 133 S. Ct. 1326, 1330 (U.S. 2013), where the Supreme Court held discharges of channeled stormwater runoff from logging roads were not “associated with industrial activity.”

Second, the Standard Industrial Classification system used in the Code of Federal Regulations to define the industrial activities it covers does not include utility poles. See 40 C.F.R. § 122.26(b)(14)(ii)–(iii), (vi), (viii), (xi). Third, EPA included “steam electric power generating facilities” in the definition of “industrial activity,” but rejected including “major electrical powerline corridors” in the regulation. See 40 C.F.R. § 122.26(b)(14)(vii). Based on this distinction, the Ninth Circuit found it reasonable to conclude EPA did not intend to include utility poles in the definition either.

Finally, the Ninth Circuit reasoned if runoff from utility poles were a discharge associated with industrial activity, many other commonplace things, such as playground equipment, bike racks, mailboxes, traffic lights, billboards and street signs would arguably require stormwater runoff regulation which could lead to an “absurd result.”

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