PG&E Can’t Shake Hazardous Waste Suit Over Leaching Utility Poles

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By Peter Hayes

Pacific Gas & Electric Co. will once again face a federal hazardous waste suit over discharges from chemically-treated utility poles stored in Northern California service yards.

The Resource Conservation and Recovery Act citizen suit alleging dioxins have leached from 31 facilities into San Francisco and Humbolt Bays may proceed, the Ninth Circuit said ( Ecological Rights Found. v. Pac. Gas & Elec. Co. , 9th Cir., No. 15-15424, 11/2/17 ).

The court rejected PG&E’s argument that it is already subject to the Clean Water Act, barring the application of RCRA under that law’s anti-duplication provision.

The Environmental Protection Agency has exercised its discretion not to require Clean Water Act permits before the discharges at issue are allowed, the court said.

Because the Clean Water Act doesn’t require PG&E to obtain a permit for its stormwater discharges, the court said “there is no CWA-grounded requirement here imposed, and so none can be inconsistent with the RCRA citizen suit section.”

The court reversed and remanded to the Northern District of California for consideration whether the wastes are “solid wastes” and whether PG&E’s actionspresent an imminent and substantial endangerment to health or the environment under RCRA.

Judge Marsha S. Berzon wrote the opinion, joined by Judges Richard R. Clifton and Kimberly J. Mueller.

Aqua Terra Aeris Law Group, and Environmental Advocates represent Ecological Rights Foundation.

Schiff Hardin LLP represents PG&E.

To contact the reporter on this story: Peter Hayes in Washington at PHayes@bna.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bna.com

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Full text of opinion available at http://src.bna.com/tV2

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