PG&E Faces Grilling Over Utility Poles on Appeal

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By Peter Hayes

Pacific Gas & Electric faced tough questioning from the Ninth Circuit on whether its utility poles are subject to regulation under federal hazardous waste law for leaching dioxins into San Francisco-area bays ( Ecological Rights Found. v. Pac. Gas & Elec. Co., 9th Cir., 15-15424, oral argument 2/17/17 ).

The company told the court that it is already “subject to the Clean Water Act,” barring application of the Resource Conservation and Recovery Act under that law’s anti-duplication provision.

But the judges expressed some skepticism of PG&E’s position.

And the Justice Department said nothing barred RCRA from applying.

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

What’s the Conflict?

“There are municipal stormwater permits under the Clean Water Act,” PG&E attorney Brad Lockland told the court during oral argument.

“The permits are enforced by local municipalities but are Clean Water Act permits.”

Some judges were skeptical of PG&E’s arguments.

“What is the provision of the Clean Water Act that would be in conflict” with RCRA, Judge Marsha S. Berzon asked.

“Compliance with the municipal permits would be inconsistent with the RCRA requirements,” Lockland responded.

“How does complying with a permit establish a conflict?” Judge Richard R. Clifton asked.

“Because the company understands what they have to do to comply and now we’re being told there’s an ad hoc regime of enforcement, not by EPA or municipalities,” Lockland said.

Lockland argued that the court should limit its ruling to whether RCRA governs storm water from these facilities into the bays. “It’s not a grand policy question,” he said.

Judge Berzon disagreed.

A Grand Policy Question

“It is a grand policy question,” she said. “What we have before us is a legal question.”

The Ecological Rights Foundation, which filed the action, disputed PG&E’s contention that its poles are regulated under the Clean Water Act.

Even if they were, the water act “is not a wholesale bar to RCRA enforcement,” EDF attorney Jason Flanders said.

“The Clean Water Act does provide a comprehensive regulatory scheme. But under the plain language of RCRA, that’s not enough to prohibit any potential RCRA liability,” Flanders said.

The Justice Department also argued in support of EDF’s position.

“The U.S. is concerned this broad interpretation would impair the ability of citizens and EPA to address potential harm under RCRA,” Assistant U.S. Attorney Judy Harvey told the court.

EDF is appealing the ruling of the Northern District of California that such discharges from the PG&E utility poles are regulated by the Clean Water Act (33 U.S.C. §1365(a)), and not RCRA (42 U.S.C. §6972(a)(1)(B)).

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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