Clarke v. Pacific Gas & Electric Company

Background

Dan Clarke sued Pacific Gas and Electric Company and PG&E Corporation, which the opinion collectively calls “PG&E.” He alleged that PG&E and its predecessors left hazardous waste at the Cannery manufactured-gas plant site near San Francisco’s northern waterfront. The plant operated from about 1898 until at least 1906 and was later abandoned. Soil and groundwater testing in the 1980s allegedly showed significant contamination, including polyaromatic hydrocarbons, which the opinion describes as toxic to marine life and known human carcinogens.

In an earlier order, the court dismissed Clarke’s Clean Water Act claim as untimely but allowed him to amend it. Clarke’s amended complaint alleged that groundwater periodically carried pollutants from the former plant site into San Francisco Bay. He alleged that precipitation, tides, groundwater conditions, and other factors caused periods of discharge and nondischarge, producing repeated and separate violations, including within the five years before he filed the action.

Motion to Dismiss

PG&E moved under Federal Rule of Civil Procedure 12 to dismiss the Clean Water Act claim. It argued that the claim was barred by the five-year statute of limitations and that Clarke failed to adequately allege: (1) a discharge by a “person”; (2) a discharge from a “point source”; and (3) adequate pre-suit notice. A Rule 12 motion tests whether the complaint sufficiently alleges a legally viable claim, rather than resolving factual disputes.

Statute of Limitations

The court held that Clarke’s amended allegations were sufficient at the pleading stage to avoid dismissal on statute-of-limitations grounds. The court explained that it was plausible that each separate, unpermitted discharge could constitute a separate Clean Water Act violation with its own limitations period. The court relied in part on decisions reasoning that each day on which an unpermitted discharge occurs may constitute a separate violation.

The court did not decide whether the alleged violations actually occurred within the limitations period. It stated that this question was better resolved on a complete factual record and might require expert testimony. PG&E’s motion to dismiss as time-barred was therefore DENIED.

Discharge by a “Person”

PG&E argued that natural processes—not PG&E—caused any recent pollutant movement, making the alleged discharges merely passive migration. The court rejected dismissal at the pleading stage. It reasoned that Clarke alleged PG&E was responsible for operating the plant and that the pollution would not have occurred without PG&E’s alleged conduct, even though natural processes contributed to the discharges.

The court stated that factual disputes about who or what caused the discharges, and whether they constituted passive migration not subject to Clean Water Act permitting requirements, could not be resolved from the complaint alone. PG&E’s motion to dismiss for failure to allege a discharge by a “person” was DENIED.

Discharge from a “Point Source”

The Clean Water Act defines a “point source” broadly to include a discernible, confined, and discrete conveyance from which pollutants may be discharged. Clarke alleged that the demolished plant facility and its component parts—including pipes, storage vats, drainage flumes, tar deposits, and contaminated areas—conveyed pollutants into groundwater that then carried them to the Bay.

The court found these allegations sufficiently specific to identify a possible point source. It did not decide whether the entire former plant or any particular component was actually a point source; that issue would require a fuller factual record. PG&E’s motion to dismiss for failure to allege a discharge from a point source was DENIED.

Pre-Suit Notice

The Clean Water Act requires a plaintiff to give the alleged violator notice of the violation before filing suit. The court found Clarke’s notice adequate because it identified the alleged intermittent and repeated discharges through groundwater flowing through the former plant site and into the Bay. Although the notice did not provide precise dates for every alleged violation, the court concluded that it described the nature and location of the alleged violations specifically enough to give PG&E an opportunity to identify and correct the problem.

PG&E’s motion to dismiss for inadequate notice was DENIED.

Disposition

Judge William H. Orrick concluded that Clarke had sufficiently pleaded his Clean Water Act cause of action. The order DENIED PG&E’s motion to dismiss that claim.