PG&E can be sued over pollution from plant it says it never owned

A federal judge refused to dismiss a lawsuit against Pacific Gas and Electric Co. claiming a gas plant its predecessors used to operate continues to pollute the surrounding area

Instead, U.S. District Judge William H. Orrick ruled Thursday that alleged violations of the Clean Water Act were timely pleaded. He found that each unpermitted discharge of contaminants into the San Francisco Bay by the Cannery Manufactured Gas Plant restarts the clock for the five-year window to sue.

PG&E said in a statement it has "never owned or operated the former Cannery Manufactured Gas Plant and is therefore not responsible for the alleged contamination."

The utility in 2018 settled lawsuits over pollution caused by three other gas plants, which were operated by its predecessors Equitable Gas Light Company and San Francisco Gas and Electric company. The deal didn't include hazardous waste created by the Cannery Gas Plant along the northern waterfront of San Francisco that's now occupied by restaurants, shops and a National Park visitor center.

While he advanced a claim alleging enjoyment of the area is diminished, Orrick previously dismissed the Clean Water Act claims because they were time barred. He found that the window to sue started to accrue when pollution caused by the plant became illegal under the law in 1973. Clarke v. Pacific Gas & Electric Company, 20-cv-04629 (N.D. Cal., filed July 10, 2020).

Orrick ruled that plaintiff Dan Clarke sufficiently amended his lawsuit to describe how contaminants from the Cannery Gas Plant are repeatedly and intermittently discharged by groundwater passing through the site. He wrote that Clarke can still sue because "each discharge in the series constitutes a separate CWA violation that begins a new statutory clock."

The judge also rejected arguments from PG&E that it's not responsible for the pollution because it's a natural result of atmospheric processes. He found that there would be no pollutant discharges from the site had it not been for the utility's actions.

"PG&E is alleged to have been responsible for the operation of the Cannery MGP, and even though the alleged pollution first occurred more than a century ago, it cannot be said to have been 'purely passive,'" he wrote.