Date: April 18, 2011
Source: News Room
A federal district court in California rejected a novel environmentalist lawsuit charging that a utility had illegally "disposed" of waste when chemicals used to treat utility poles leached into San Francisco Bay by way of stormwater. The U.S. District Court for the Northern District of California March 31 granted a motion by the defendants in Ecological Rights Foundation v. Pacific Gas & Electric (PG&E) et al. to dismiss the complaint against them, saying that the plaintiffs' argument that the conveyance of pentachlorophenol which PG&E used to treat its utility poles into the bay by stormwater runoff and by dust blown into the air, was not a disposal of solid waste under the Resource Conservation & Recovery Act (RCRA), nor did it constitute a discharge under the Clean Water Act (CWA). In her March 31 decision, Judge Saundra Brown Armstrong said the plaintiff's argument that it was unpermitted disposal of a solid waste is unsupported by case law. The U.S. Court of Appeals for the 9th Circuit's 2004 decision in Safe Air for Everyone v. Meyer "explained that RCRA 'reveals [a] clear Congressional intent to extend EPA's authority only to materials that are truly discarded, disposed of, thrown away, or abandoned," Armstrong wrote in her decision.
"Plaintiff theorizes that once the chemicals leave the Poles, they no longer are being 'used' by Defendant and thus should be deemed to be 'disposed of' by them," Armstrong continues. "The flaw in Plaintiff's theory of disposal is that in this case, there is no allegation that Defendants engaged in any conduct that resulted in the discharge of the chemical preservatives. To the contrary, Plaintiff merely alleges that the purported contamination is the result of natural forces -- namely, rain and wind. Such allegations, on their face, are insufficient to establish that Defendants engaged in the 'disposal' of hazardous waste under [RCRA]."
The plaintiffs had also argued that the stormwater runoff of the chemicals into the Bay was a violation of the CWA, which includes provisions to regulate stormwater as a point source and subject stormwater discharges to National Pollutant Discharge Elimination System permits. But Armstrong said the natural washing of treatment chemicals from a telephone pole cannot be considered a point source discharge because there is no evident conveyance of stormwater from the pole to the San Francisco Bay, thus, whatever chemicals reach the Bay arrive there from a nonpoint source.
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