As Argument Nears, DOJ Bolsters Support for Hazmat Appeal

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Oral arguments are set for Feb. 17 in a closely-watched Ninth Circuit appeal over chemical leaks from wooden public utility poles that will test the reach of federal environmental laws ( Ecological Rights Found. v. Pac. Gas & Elec. Co. , 9th Cir. App., No. 15-15424, motion for argument filed 1/19/17 ).

The Ecological Rights Foundation brought the citizen suit against Pacific Gas & Electric Co. for alleged discharges of dioxins and other chemicals from treated wood stored at four California PG&E facilities.

ERF has an ally in the Department of Justice, which filed a friend-of-the-court brief in support of a key element of the appeal. DOJ also filed a motion Jan. 19 asking to be allowed to present oral argument in the case.

The government contends that the seepage from the poles is a “solid waste” that is properly regulated by the Resource Conservation and Recovery Act.

RCRA is a solid waste law disposal law that authorizes citizen suits to remedy “imminent and substantial endangerments to health and the environment.”

ERF contends that solid wastes regulated under RCRA includes chemicals that drip from the treated poles, leach into the soil and migrate into San Francisco Bay and Humboldt Bay through storm water. But PG&E successfully argued in the Northern District of California that RCRA doesn’t apply because it overlaps with another federal environmental law, the Clean Water Act.

The federal government says RCRA’s so-called anti-duplication provision should be applied on a case-by-case basis, not the “categorical” rule applied by the lower court.

It points to a long-standing interpretation of the two statutes by DOJ’s Office of Legal Counsel that Congress intended any overlap to be construed harmoniously.

The Aqua Terra Aeris Law Group represents the Ecological Rights Foundation in the appeal.

Schiff Hardin represents Pacific Gas & Electric.

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