SAN FRANCISCO, January 12, 2022 – Federal Judge William H. Orrick (N.D. Cal.), yesterday evening, issued an Order finding that PG&E is liable under the federal Clean Water Act (“CWA”) and Resource Conservation and Recovery Act (“RCRA”) for any proven contamination caused by a manufactured gas plant—commonly known as the “Cannery MGP”—formerly owned and operated by PG&E’s predecessors in the current location of the Argonaut Hotel near Ghirardelli Square, above Aquatic Park Cove, San Francisco. The Order resolved cross-motions for summary judgment brought by PG&E and Plaintiff Dan Clarke, represented by Gross & Klein LLP, a concerned citizen and former resident of the Marina District, who has successfully fought PG&E to address manufactured gas plant contamination in the Marina and Fisherman’s Warf Districts for over a decade.
The Court agreed with Mr. Clarke that PG&E was liable for any such contamination under the CWA and RCRA, based on three independently sufficient grounds: (1) evidence that PG&E’s direct predecessor, San Francisco Gas & Electric Company (“SFG&E”), operated the Cannery MGP for some period in 1903; (2) evidence that SFG&E dismantled and removed components of the Cannery MGP thereafter; and (3) evidence that SFG&E acquired the Cannery MGP, not through an asset sale, as PG&E has claimed for decades, but rather, as Mr. Clarke argued, a stock sale by which SFG&E transformed the plant’s former owner into a mere instrumentality of SFG&E.
In the 1980s, a limited investigation of the Cannery MGP’s former location was conducted, the results of which, Mr. Clarke alleges, indicated the likely existence of high levels of dangerous contamination from the former plant. However, PG&E denied any responsibility to further investigate or remediate the contamination, and no state or federal government agency ever took action to compel PG&E to do so. As a result, over forty years have passed during which no action to address the contamination has occurred. Manufactured gas plant contamination contains high levels of various toxic chemicals, in particular, polyaromatic hydrocarbons, which are well-known human carcinogens and are highly toxic to marine life. Mr. Clarke alleges that the contamination not only threatens human health, but also the health of the environment, including that of the Bay into which he alleges toxic chemicals from the contamination are continuously discharged. Investigations of other former PG&E manufactured gas plants along San Francisco’s northern waterfront have revealed extensive contamination, including large deposits of highly toxic coal tar at different locations in the Marina, Fisherman’s Wharf, and offshore of both.
“This is an important day for the health of San Francisco and the Bay,” commented Stuart G. Gross of Gross & Klein. “It is also an important day for the principles of ‘polluter pays’ and corporate accountability,” Mr. Gross continued. “For decades, PG&E was able to evade responsibility on the basis of its assertion—now refuted—that it never owned or operated the plant. No government agency ever challenged that assertion, letting PG&E off the hook. Mr. Clarke stepped into and filled that gap and, in so doing, provided an extraordinary public service. We’re honored to represent him in this fight.”
Mr. Clarke discovered the existence of the Cannery MGP while doing research in connection with separate litigation against PG&E related to three other manufactured gas plants formerly located on San Francisco’s northern waterfront. “When I raised the issue of the Cannery MGP to PG&E, they refused to even discuss it,” Mr. Clarke observed. “‘Never owned it, never operated it,’ was their line. I knew that wasn’t true, then, and it’s gratifying to have the Court agree. I look forward to the site being finally investigated and remediated.”
Gross & Klein LLP represented Mr. Clarke and the San Francisco Herring Association in a separate action, San Francisco Herring Association, et al. v. PG&E, et al., No. 14-4393-WHO (N.D. Cal.), which resulted inter alia in two separate consent decrees, addressing offshore and terrestrial contamination in the Marina and Fisherman’s Wharf. Gross & Klein has also successfully represented, and currently represents, a number of Marina homeowners in related cases against PG&E.
The lawsuit is titled, Clarke v. PG&E, No. 20-4626-WHO (N.D. Cal.).
A copy of the Order Granting, in Part, and Denying, in Part, the Cross-Motions for Summary Judgment is available here.