Ninth Circuit Rules That Storm Water Runoff From Utility Poles Is Not A “Point Source” Discharge Under The Clean Water Act Or A “Solid Waste” Under RCRA

by Perkins Coie

An environmental group argued that rain water washing over utility poles and carrying wood preservatives used to treat the poles into Bay Area waterways violated the Clean Water Act (CWA) and the Resource Conservation and Recovery Act (RCRA).  In rejecting the CWA claim, the Ninth Circuit ruled that (1) the discharge was not from a “point source,” since a utility pole is not a “discernible, confined and discrete conveyance” that channels and controls storm water; and (2) the discharge was not “associated with industrial activity.”  In rejecting the RCRA claim, the court ruled that the wood preservatives that escape from the utility poles are not “solid waste.”  Ecological Rights Foundation v. Pacific Gas and Electric Co. (9th Cir. No. 11-16042, Apr. 3, 2013). 

No point source discharge:  The court found that rain water washing off utility poles was a “nonpoint” source discharge that does not require a CWA permit.  The court reasoned that a utility pole does not collect, confine, control or channelize rain water and therefore is not a “discernible, confined and discrete conveyance” under the CWA’s definition of “point source.”  33 U.S.C. § 1362(14).  Relying on that definition, the court rejected the plaintiff’s claim that a “point source” is “any tangible, identifiable thing” that water runs over. 

No storm water discharge associated with industrial activity:  The court explained that CWA permits are required only for certain categories of storm water discharges.  The only category relevant here was storm water discharges “associated with industrial activity.”  For four reasons, the court concluded that the runoff from the utility poles was not a discharge associated with industrial activity.  

  • The court found utility poles are not “industrial” facilities as defined in 40 CFR 122.26(b)(14) because they are not directly related to any manufacturing, processing or raw materials storage at an industrial plant.  In reaching this conclusion, the court relied on the Supreme Court’s March 20, 2013, decision in Decker v. Northwest Environmental Defense Center, which held that storm water runoff from logging roads is not a discharge associated with industrial activity. 
  • The court emphasized that none of the “Standard Industrial Classification” codes the EPA uses to define the universe of regulated industrial activities cover utility poles.
  • To the contrary, the court observed, the EPA had previously rejected a proposal to include “electrical powerline corridors” in its definition of “industrial activity.”  The court took this to mean the definition did not include individual utility poles.
  • Finally, the court warned that if runoff from utility poles required a CWA permit, then so would runoff from “playground equipment, bike racks, mailboxes, traffic lights, billboards, and street signs-indeed, anything that might contaminate storm water.”  The court observed that such a sweeping reading runs counter to the CWA’s circumscribed regulation of storm water discharges and would create an absurd result.

No solid waste:  The court also rejected plaintiff’s argument that wood preservative that escapes from utility poles through normal wear and tear while the poles are in use is a RCRA “solid waste.” The court explained that the key to whether a manufactured product, such as a wood preservative, constitutes “solid waste” under RCRA depends on whether that product has served its intended purpose and is no longer wanted by the consumer.  The court emphasized that the dispute in the case centered on wood preservative that leaks, spills or escapes from the utility poles, which “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 therefore ruled that wood preservative “that is released into the environment as a natural, expected consequence of its intended use-as a preservative for wooden utility poles-is not automatically ‘solid waste’ under RCRA’s definition of that term.” 

Relying on common sense, the court warned that a contrary ruling would mean that “everything from wood preservative that leaches from railroad ties to lead paint that naturally chips away from houses would be ‘solid waste.’”  However, the court made clear that it was not deciding whether or under what circumstances wood preservatives or other material could constitute an RCRA solid waste when it accumulates in the environment over time, citing decisions that held that lead shot accumulated at firing ranges could be regulated as “solid waste” under RCRA.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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