Schiff Hardin Prevails in Environmental Litigation
- Client: West-coast utility
- Date: 2009 - 2011
- Location: Northern California
Summary:
Schiff Hardin's Environmental Group successfully obtained a dismissal for its client, a West-coast utility, from a lawsuit based upon alleged violations of the Clean Water Act ("CWA") and the Resource Conservation and Recovery Act ("RCRA") related to its use of wooden utility poles treated with a preservative, pentacholorphenol ("penta").
An environmental group based in Northern California sued our client and another utility over the use of the treated wood poles. The treatment of poles with penta is a USEPA-approved process for increasing the useful life of poles from less than five years (without penta) to 30 to 60 years (with penta). The utilities, and others using the poles in Northern California, purchase the poles after the penta is applied by the manufacturer.
The lawsuit alleged that the penta leaks out of the poles and into the surrounding soil and makes its way to the San Francisco Bay and other waterways. The plaintiffs alleged that such releases violate two federal statutes, the CWA and RCRA. The alleged CWA violation arises from the allegations that penta may leak from the poles and thereby contaminate "waters of the United States;" in addition, the plaintiff alleged that the utility's failure to obtain a permit to "discharge" penta violates the CWA. Under RCRA, the plaintiff alleged that the poles currently in use by the utility are a "hazardous waste" that is subject to regulation under the act. While the lawsuit was focused on four counties in Northern California, there are in excess of 36 million similar poles nationwide.
Schiff Hardin filed a motion to dismiss, arguing that the poles are not subject to regulation under the CWA because they are not "point sources," a prerequisite for such a claim. The court agreed and dismissed the CWA claims with prejudice.
Schiff Hardin further argued that the use of the poles was not a RCRA violation because RCRA was designed to regulate discarded material, not useful products being used for their intended purpose. Once again, the court agreed and dismissed the plaintiff's argument that "passive migration" of penta from the poles in a rain storm could constitute the disposal of a waste in violation of RCRA. On that basis, the court dismissed the RCRA claim with prejudice.