Ninth Circuit to Decide Whether RCRA Regulates Chemical Seepage From Treated Wood

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By Agnes Antonian and Ryan A. Benson

On February 17, 2017, the Ninth Circuit Court of Appeals will hear oral argument on whether the Resource Conservation and Recovery Act (“RCRA”), which regulates solid waste, also regulates chemical seepage from chemically treated wooden utility poles.  The Ecological Rights Foundation filed a citizen suit against Pacific Gas and Electric alleging that seepage from treated poles is “solid waste” under RCRA and should be regulated.  The Foundation has argued that dioxins and other chemicals leak into water bodies from chemically treated wood stored at PG&E facilities.  The Department of Justice has filed an amicus brief supporting the Foundation, and moved on January 19 to participate in oral argument.  A key issue will be whether the overlap of RCRA with the Clean Water Act prevents the application of RCRA because of RCRA’s so-called “anti-duplication” provision.  The lower court held that the overlap did prevent application of RCRA.