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Ecological Rights Foundation v. Pacific Gas & Electric Co.

ELR Citation: 43 ELR 20079
Nos. 11-16042, (9th Cir., 04/03/2013)

The Ninth Circuit affirmed the dismissal of an environmental group's citizen suit against two electric companies alleging that their utility poles discharged wood preservative into the environment in violation of the CWA and RCRA. The group failed to state a claim under the CWA because discharges of stormwater from the utility poles were neither a "point source discharge" nor "associated with industrial activity." A utility pole simply is not a "discernible, confined and discrete conveyance" that "channels and controls" stormwater. And because EPA has chosen not to regulate stormwater runoff from the companies' utility poles, that runoff is in compliance with the CWA, even if it is discharged without an NPDES permit. The group also failed to state a claim under RCRA. Wood preservative that escapes from wooden utility poles as those poles age has not itself been "discarded," and therefore is not a "solid waste," under RCRA.