SAN FRANCISCO (CN) --- Rejecting arguments that a utility can’t be sued over century-old pollution, a federal judge signaled Wednesday that he will likely advance a lawsuit seeking to hold Pacific Gas and Electric liable for contamination that occurred more than 100 years ago.
“I think at least for now, I’m going to allow the case to proceed and conclude that the case isn’t time-barred,” U.S. District Judge William Orrick III said during a virtual court hearing Wednesday.
Orrick oversees a lawsuit brought by former San Francisco resident Dan Clarke. Clarke seeks a court order that would force PG&E to investigate and clean up contamination left by the Cannery gas plant owned and operated by PG&E’s predecessors from 1898 to 1907.
Like other manufactured gas plants at the turn of the century, the Cannery used oil and coal to create gas for lighting, heating and cooking. The plant, operated by PG&E predecessors the Equitable Gas Light Company and San Francisco Gas and Electric company, was demolished in 1907 after the Great Earthquake of 1906.
In a previous ruling, Orrick advanced Clarke’s claim that PG&E’s alleged conduct diminished his aesthetic and recreational enjoyment of a shoreline area in San Francisco’s Marina District where Clarke used to reside and still takes walks.
But the judge dismissed claims that PG&E violated the Clean Water Act with leave to amend. To advance those claims, Orrick said Clarke would need to show a distinct violation by PG&E that occurred within the last five years to overcome the statute of limitations.
In an amended complaint filed this past December, Clarke claimed groundwater contamination stemming from the site of PG&E's former gas plant “is intermittently discharged into the bay.” He said seasonal, tidal and other factors result in groundwater passing the former plant site and intermixing with contaminants before leaking into the San Francisco Bay.
At a hearing Wednesday, PG&E lawyer James Mink argued that his client can't be held liable for continued discharges of contaminated water that are caused by natural processes. He further insisted Clarke failed to identify a single “point source” from which pollutants originated as required under the Clean Water Act.
“We don’t believe he can allege a point source because the Cannery [manufactured gas plant] was demolished so there’s nothing left there,” Mink said.
Clarke’s attorney Stuart Gross countered that the former gas plant is the source. He said that includes parts of the plant --- such as pipes, storage tanks and drainage flumes --- which were left behind when PG&E’s predecessors abandoned the site.
“You have a facility spread over a large area consisting of a number of discrete components that are themselves identified as conveyances of contaminants that get into groundwater,” Gross said.
Gross further argued that the Supreme Court’s 2020 decision in County of Maui v. Hawaii Wildlife Fund makes clear that a Clean Water Act violation occurs when contaminants enter a body of water from a source, not when the pollution is discharged from that source.
“The claim accrues when those contaminants arrive at the navigable water and that is happening intermittently and presently,” Gross said.
Mink strongly disagreed with that interpretation, insisting that the statute-of-limitations clock starts ticking after the single violation, which in this case allegedly occurred over a century ago.
After taking in the arguments, Orrick said he was inclined to deny PG&E’s motion to dismiss the suit.
“I think PG&E is a person causing the discharge because of its original conduct,” Orrick said. “It’s not merely passive activity. I think the allegations are sufficient.”
The judge added that he does not believe Clarke could identify the source of the contamination more specifically without the kind of testing and investigation that will occur in the next stage of litigation.
In mid-March, PG&E reached a settlement in a separate lawsuit over three other manufactured gas plants operated in San Francisco at the turn of the 20th century. The company agreed to fund a study on how to remove or mitigate contamination from an underground storage tank and to remove and replace contaminated dirt during excavation projects in the area over the next five years.
That followed another deal reached in January in which PG&E agreed to pay up to $190 million to rehab a small craft harbor to settle a lawsuit with the city of San Francisco over contamination from its century-old gas factories.
In 2018, PG&E settled yet another lawsuit over its defunct gas plants with the San Francisco Herring Association. In that deal, the company agreed to pay $4.2 million for water quality and environmental improvement projects and to investigate, monitor and report levels of polycyclic aromatic hydrocarbons, or PAHs, toxic byproducts of the gas manufacturing process.
Those settlements did not address contamination the Cannery, which is the focus of the lawsuit Orrick indicated he would likely advance on Wednesday.
The site of the former Cannery plant, which encompasses an entire city block near San Francisco’s Ghiradelli Square and Aquatic Park, is now occupied by a hotel, restaurants, shops, and a National Park Visitor Center.
Follow @NicholasIovino
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
