As we noted last month, the Supreme Court has determined that logging roads are not point sources subject to stormwater regulation under the Clean Water Act. On Wednesday, in Ecological Rights Foundation v. Pacific Gas and Electric, the 9th Circuit Court of Appeals, relying in part on the decision in Decker v. Northwest Environmental Defense Center, held that releases of pentachlorophenol and other pesticides from in-place utility poles also do not constitute point source discharges. As the Court concluded:
Utility poles simply are not “discernible, confined and discrete conveyances” that “channel and control” stormwater.
The Court further noted that, even if they were, any discharges from the poles were not “associated with an industrial activity.” What I like about this part of the decision is the Court’s willingness to grapple with the practical application of a decision that discharges from in-place poles were associated with an industrial activity.
If the defendants’ utility poles are conveyances that are both “used for collecting and conveying storm water” and “directly related to manufacturing, processing or raw materials storage areas at an industrial plant,” then arguably so are playground equipment, bike racks, mailboxes, traffic lights, billboards, and street signs—indeed, anything that might contaminate stormwater.
The plaintiffs also claimed that releases from the poles constituted an imminent and substantial endangerment under RCRA. The Court similarly rejected the RCRA claims, and again recognized the practical consequences of a contrary ruling:
Indeed, if ERF is correct, everything from wood preservative that leaches from railroad ties to lead paint that naturally chips away from houses would be “solid waste,” and thus potentially actionable.
And to suggest an analogy with significant current practical importance, leaching of PCBs from building caulk still in use might lead to a RCRA citizen suit claim under the reasoning of the plaintiffs’ allegations in this case. If the 9th Circuit can reject claims regarding leaching of PCP from utility poles, perhaps the 1st Circuit will reject claims regarding leaching of PCBs from building caulk. After all, it’s only a change of one letter.