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

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By Peter Hayes

Pacific Gas & Electric Co. once again will face a federal hazardous waste suit over discharges from chemically treated utility poles stored in Northern California service yards, a federal appeals court ruled Nov. 2 ( Ecological Rights Found. v. Pac. Gas & Elec. Co. , 9th Cir., No. 15-15424, 11/2/17 ).

The Resource Conservation and Recovery Act citizen suit alleging dioxins have leached from 31 facilities into San Francisco and Humbolt Bays may proceed, the U.S. Court of Appeals for the Ninth Circuit said.

The court rejected PG&E’s argument that it already is 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 U.S. District Court for the Northern District of California to consider whether the wastes are “solid wastes” and whether PG&E’s actions present 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.

For More Information

The opinion is available at http://src.bna.com/tV2.

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