Toxic Telephone Poles?

In a first-of-its-kind litigation, the Ecological Rights Foundation ("ERF") has alleged in a Complaint brought in federal district court in San Francisco that Pacific Gas & Electric Company (PG&E)  is  in violation of the Clean Water Act ("CWA") and the Resource Conservation and Recovery Act ("RCRA").  ERF alleges that the treatment of PG&E’s utility poles treated with pentachlorophenol ("penta"), a wood preservative, has resulted in contamination of groundwater and surface water throughout four counties in Northern California — Alameda, Contra Costa, Marin, and San Francisco, including San Francisco Bay.  The suit implicates all of the estimated 300,000 utility poles that support Northern California’s electrical power grid. Does ERF expect a court will order that all of those utility poles be taken down and replaced with poles comprised of an as-yet-to-be-invented-space-age-material that does not require chemical treatment, never deteriorates, causes no environmental harm and does not cause hazardous waste to be emitted during manufacture? 

In an article posted on its website, Foley & Lardner, which has been tapped by PG&E, cautions that  this lawsuit potentially has far-reaching implications. The Milwaukee-based law firm notes that millions of utility poles throughout the country are treated with penta or other preservatives, which are necessary to keep the utility poles from deteriorating and to keep electricity and telephone service flowing to homes and businesses.  Significantly, they observe that the environmental impact of the penta-treated poles was examined in great detail by the USEPA when the use of penta-treated wood poles as utility poles was approved.  By approving the use of penta, USEPA found that penta did not cause the significant environmental harm now alleged by ERF. If ERF is successful in San Francisco, where might this type of litigation lead? 

Apart from the serious policy considerations at issue here, ERF’s lawsuit will have to overcome significant legal hurdles, including for starters: (1) that under CWA, ERF must demonstrate that each individual pole is a "point source". It may be difficult to argue with a straight face in federal court that PG&E should have obtained a permit for each discharge from every pole–all separate violations of the statute: and (2) that under RCRA, ERF must demonstrate that PG&E is a generator of solid waste that presents "an imminent and substantial endangerment to the environment. The defendants are not the applicators of the material.  The sub-text of the litigation appears to revolve around  ERF’s unhappiness over USEPA’s past decision making concerning the use of Penta on utility poles. If so, ERF take it up with USEPA and leave our fragile power grid alone!