Suit over PG&E’s alleged bay pollution is reinstated

PG&E headquarters, 77 Beale Street in San Francisco, Calif., on Wednesday, October 18, 2017. PG&E headquarters, 77 Beale Street in San Francisco, Calif., on Wednesday, October 18, 2017. Photo: Scott Strazzante / The Chronicle 2017 Buy photo Photo: Scott Strazzante / The Chronicle 2017 Image 1 of / 1 Caption Close Suit over PG&E’s alleged bay pollution is reinstated 1 / 1 Back to Gallery

A federal appeals court reinstated an environmental group’s lawsuit Thursday that accuses Pacific Gas and Electric Co. of contaminating San Francisco and Humboldt bays with potentially dangerous chemicals in a wood preservative used on utility poles.

In its 2010 suit, the Ecological Rights Foundation said sawdust and wood chips at 31 PG&E service yards in Northern California contained pentachlorophenol, a preservative and pesticide with dioxins that can increase the risk of cancer, reproductive damage and other health problems. The Environmental Protection Agency has listed the substance as a probable human carcinogen and many nations banned it in 2015, but the U.S. allows limited use.

The suit said oil and wood waste from poles stored at the yards washed into the bays, damaging the environment and endangering wildlife and human health. The environmental group wants a court to order PG&E to halt or clean up the discharges.

U.S. District Judge Richard Seeborg in San Francisco agreed in 2015 that the preservative was found on the ground at PG&E yards, but ruled that the law the environmental group cited in the suit, the Resource Conservation and Recovery Act, did not apply to storm-water pollution.

That law exempts activities that are subject to the federal Clean Water Act. The Environmental Protection Agency decided many years ago not to require permits under that law for storm-water discharges. But because the agency could have ordered permits, Seeborg said, the discharges were subject to the Clean Water Act and could not be challenged under the Resource Conservation law.

The Ninth U.S. Circuit Court of Appeals in San Francisco disagreed and said the suit could proceed.

“The Clean Water Act does not require PG&E to get a permit for these discharges,” Judge Marsha Berzon said in the 3-0 ruling. That means such pollution is not subject to the water law, she said.

The EPA filed arguments supporting reinstatement of the suit under President Barack Obama, and argued on the side of the environmental group at the court’s hearing in February after President Trump took office.

The court also rejected PG&E’s argument that the environmental group had not shown that its members had suffered any harm from the alleged pollution and therefore lacked legal standing to sue.

Berzon said the group’s members had adequately asserted “their reduced ability to enjoy eating local seafood in Bay Area restaurants, observing birds and other wildlife from the air or from the wetlands around Oakland Airport, or sailing and swimming safely in San Francisco Bay, among other harms.”

Jason Flanders, a lawyer for the Ecological Rights Foundation, said the ruling closed “what could have been a major loophole in pollution law.”

Asked for comment, PG&E spokesman Matt Nauman said, “The health and safety of our customers and the public is our top priority. We are aware of the court’s decision. We’re reviewing it and evaluating our next steps.”

Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@sfchronicle.com Twitter: @egelko