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April 25, 2014

Utility Pole Not A Point Source Under The Clean Water Act

Last week the Ninth Circuit held that utility poles are not “point sources” of stormwater discharge nor “associated with industrial activity,” and therefore do not require an NPDES permit to comply with the Clean Water Act.

Plaintiff environmental group brought a suit alleging that the defendant utility companies treated their utility poles with a wood preservative containing a biocide and other chemicals. Plaintiff further alleged that the utility poles discharge the wood preservative into the environment in violation of the Clean Water Act (CWA) and Resource Conservation and Recovery Act (RCRA). The Ninth Circuit rejected both claims in an unanimous decision.

Clean Water Act

Plaintiff’s key claim was that the utility companies violated the CWA because they discharged contaminated stormwater from their utility poles without a permit under the National Pollutant Discharge Elimination System (NPDES). The Ninth Circuit upheld the district court’s dismissal of the claim, finding that utility poles do not require an NPDES permit because they are not “point sources” of stormwater discharge and are not “associated with industrial activity.”

NPDES permits are only required for discharge of stormwater from a point source. The Ninth Circuit explained that stormwater runoff can be either a point source or a nonpoint source, depending on the circumstances. For example, if stormwater is allowed to run off naturally, it is a nonpoint source; however, if it is collected and channeled through a discrete conveyance, it becomes a point source.

The Ninth Circuit rejected the argument that utility poles are point sources for several reasons. First, the CWA does not specifically identify utility poles as point sources, nor has the EPA issued any guidance that utility poles are point sources. Second, utility poles are not constructed for the purpose of storing or moving pollutants. Finally, in the court’s view, utility poles “simply are not discernible, confined and discrete conveyances that channel and control stormwater.” Thus, the court concluded that utility poles are not point sources requiring an NPDES permit.

Plaintiff tried unsuccessfully to argue that utility poles discharge pollutants directly into the environment (i.e., when the wood preservative drips off of the poles), and that stormwater runoff from the poles is collected into ditches, channels, and other conveyances that are clearly point sources. However, the Ninth Circuit rejected these claims without further analysis because plaintiff did not squarely allege them in its complaint.

After concluding that utility poles are not point sources, the Ninth Circuit found that plaintiff’s CWA claim failed for another, independent reason. Namely, NPDES permits are only required for discharges “associated with industrial activity,” and stormwater runoff from utility poles is not such a discharge. First, the court found that utility poles do not come within the statutory definition of “associated with industrial activity” because they are not conveyances and are not directly related to industrial facilities or activities. Second, the court noted that the regulatory classification system used to define industrial activities does not cover utility poles. Third, the EPA expressly chose to exclude “major electrical powerline corridors” from the definition of “industrial activity,” and thus it is reasonable to conclude that EPA also intended to exclude individual utility poles. Finally, the court was concerned about opening the door for regulation of many other “commonplace things” including “playground equipment, bike racks, mailboxes, traffic lights, billboards, and street signs—indeed anything that might contaminate stormwater.” Thus, absent guidance from EPA, the court was unwilling to find utility poles to be “associated with industrial activity.”

Resource Conservation and Recovery Act

Plaintiff also claimed that the utilities had violated RCRA by discharging the wood preservative into the environment.

RCRA governs the treatment, storage, and disposal of solid and hazardous waste. It authorizes a citizen suit against a defendant “who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.”

The Ninth Circuit found that plaintiff could not state a claim under RCRA because the wood preservative is not “solid waste” within the meaning of the statute. Looking to RCRA’s legislative history and the case law, the court found that the key to determining whether a product is “solid waste” is whether that product has served its intended purpose and is no longer wanted by the consumer. Applying this test, the court found that the preservative escaping from the poles was not “solid waste” because it was still serving its intended purpose and that it had not been thrown away or discarded by the utilities. The court was again concerned with the practical effect of its ruling, observing that plaintiff’s characterization of the preservative as solid waste “would lead to untenable results” because there are “36 million utility-owned wood poles in service across the United States” and it “defies reason” to suggest that each of them must be replaced.

Conclusion

This case along with the recent Supreme Court decision in Decker v. Northwest Environmental Center (Mar. 20, 2013) helps to define the limits of activities that are required to have stormwater permits to address potential contributions of pollutants to waters of the United States. The cases both reject efforts by plaintiffs to include new activities under the stormwater program.

Copyright © 2014, Sheppard Mullin Richter & Hampton LLP.

About the Author

Partner

Robert J. Uram is a partner in the Real Estate, Land Use, Natural Resources and Environmental practice group in the firm's San Francisco office. He is a founding member of the firm's Organic Food and Fiber Law group.
 

415-774-3285

About the Author

Partner

Keith Garner, AICP, is a partner in the Real Estate, Land Use, Natural Resources and Environmental practice group in the firm's San Francisco office.

 

415-774-2991
Alexander L. Merritt, Real Estate Attorney, Sheppard Mullin Law Firm
Associate

Mr. Merritt’s practice focuses on land use matters and real estate litigation. He assists developers and property owners in complying with CEQA and planning and zoning regulations; obtaining development entitlements and regulatory approvals; drafting transactional real estate documents and conservation easements; and litigating land use and real estate cases involving CEQA, planning and zoning laws, development fees, and lease disputes. Mr. Merritt has worked on a variety of residential, commercial, mixed-use, and office projects throughout the Bay Area and California. He also...

415-774-2976

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