PG&E Sued To Compel Investigation and Cleanup of Contamination In SF's Ghiradelli Square and Aquatic Park

SAN FRANCISCO, July 11, 2020 – Gross & Klein LLP filed a complaint, yesterday evening, on behalf of a concerned citizen, in the federal court of the Northern District of California, seeking the investigation and cleanup of contamination from a manufactured gas plant or “MGP” that PG&E formerly owned and operated in the current location of the Argonaut Hotel in the Ghirardelli Square area of Fisherman’s Wharf, in San Francisco.

As alleged in the complaint, the manufactured gas plant, known as the “Cannery MGP,” in the late 19th and 20th centuries, turned coal and crude oil into a gas that was piped to homes and businesses for heating and lighting. Despite internal documents that acknowledge its responsibility for the contamination caused by the Cannery MGP, PG&E has publically and falsely denied ever owning or operating the MGP and has repeatedly refused to even investigate the contamination caused by it.

A limited investigation conducted in the mid-1980s revealed dangerous levels of polycyclic aromatic hydrocarbons or PAHs at the site of the Cannery MGP. PAHs are known human carcinogens and can have devastating effects on animals exposed to them, particularly fish exposed when they are in eggs or during their larval stage. The area offshore of the Cannery MGP, including Aquatic Park, is not only one of the few areas of the Bay where people regularly swim it is also a known spawning ground for Pacific herring, a keystone species for the Bay’s ecology that is known to be particularly sensitive to PAH exposure.

The complaint alleges that groundwater passing through the former Cannery MGP site is transporting dangerous PAHs and other chemicals into Aquatic Park and other areas of the Bay. It further alleges that sediment in Aquatic Park itself contains large amounts of contamination from the MGP and that PAHs and other dangerous chemicals are partitioning from that waste into the water column. Investigations of other MGPs for which PG&E is responsible along the northern waterfront of San Francisco have revealed extensive contamination, including large deposits of tar in the areas of Gas House Cove and Pier 39. 

“PG&E's refusal to own up to its responsibility for this contamination is incredibly, but not surprisingly, cynical," said Stuart G. Gross of Gross & Klein. "Unfortunately, this company, since its founding in the 1800s, has consistently put profits ahead of people and the environment. They don't do the right thing unless forced to, and we are going to force them to."

The lawsuit brings claims under the federal Clean Water Act, the federal Resource Conservation and Recovery Act, and California state common law. It seeks the establishment of environmental remediation trust funded by PG&E that will be responsible for managing the investigation and remediation of the contamination.

Gross & Klein has successfully represented the plaintiff in this case, commercial herring fishermen, homeowners, and others in several other lawsuits regarding the other three MGPs along San Francisco’s waterfront. One such lawsuit resulted in a ten-year consent decree between PG&E and commercial herring fishermen that requires the investigation and cleanup of large portions of the waterfront. However, because of PG&E’s denial of responsibility for it, the consent decree does not address contamination caused by the Cannery MGP.

The lawsuit is titled, Clarke v. PG&E, No. 20-cv-04629 (N.D. Cal.).

A copy of the Complaint can be found here.

San Francisco Herring Association Distributes Over $1.7 Million to Permanently Retire Herring Permits

SAN FRANCISCO, April 21, 2020 – The San Francisco Herring Association (“SHFA”), today, cut checks totaling over $1.7 million to approximately fifty fishermen who agreed to give up one or more of their San Francisco herring permits, permanently reducing by approximately 50% the total number permits available to fish for herring in San Francisco Bay.

The funds used to make the payments were won in a lawsuit that SFHA, represented by Stuart G. Gross of Gross & Klein LLP, brought against PG&E for contamination of herring spawning grounds in San Francisco Bay caused by PG&E’s historical manufactured gas plant operations in the Marina and Fisherman’s Wharf neighborhoods of San Francisco. SFHA’s claims were resolved in September of 2018, when Federal Judge William H. Orrick (N.D. Cal.) entered a consent decree that obligated PG&E to fund the permit retirement program, pay another approximately $3.5 million for environmental restoration, monitoring, and other expenses, and engage in a ten-year-long investigation and clean up of the offshore areas of the Marina and Fisherman's Wharf neighborhoods.

The permit retirement program represents a remarkable example of collaboration between fishermen and resource agencies, specifically the California Fish & Game Commission (the “Commission”) and California Department of Fish & Wildlife (“CDFW”), to achieve shared goals of protecting natural resources and supporting fishing families. The San Francisco herring fishery, at one time, was one of the most lucrative in the world; and, as a result, many fishermen spent tens of thousands of dollars to purchase their herring permits. (Much like a taxi medallion, only a limited number of herring permits are in circulation; and fishermen cannot participate in the fishery without one.) However, over time the fishery has become substantially less lucrative; and stock levels have periodically shown significant weakness. As a result, herring permits are now worth substantially less money, and the total number is higher than what the stock can sustainably support.

SFHA worked closely with the Commission to develop and implement the necessary regulatory changes that would result in the permanent retirement of any permit that a fisherman surrendered. SFHA, then, with the cooperation and assistance of CDFW, contacted permit holders, executed contracts with those who wished to participate, and verified that their permits had been surrendered.

SFHA’s President, Matt Ryan, a long time herring fisherman, who was largely responsible for designing the program and shepherding it through all stages of its implementation, observed, "It's great to see this get done. There were more than a few points along the way where it wasn’t clear that it would come together. The fact that we were able to put tens of thousands of dollars into fishermen's hands and support the health of the stock is a great thing, especially given everything going on right now.”

Stuart G. Gross of Gross & Klein LLP, which represented SFHA in the lawsuit and in the administration of the program, observed, “It always feels good making a polluter pay. The fact that the payees, here, are hardworking fishermen harmed by PG&E’s carelessness makes it all the sweeter. The icing on the cake is that not only will the ecology of the Bay significantly benefit from the reduction in permits, the remaining holders will benefit as well. This is a real win-win-win for everyone . . . except PG&E.”

Gross & Klein LLP represents individuals, businesses, and non-profits in a range of complex litigation—including environmental, commercial, and financial fraud cases. Gross & Klein represents several current and former home and property owners, in separate ongoing cases concerning contamination caused by PG&E’s manufactured gas plants in San Francisco.

The referenced lawsuit was titled, San Francisco Herring Association v. PG&E, No. 14-4393 (N.D. Cal.).

Complaint Filed To Complete The Cleanup Of Marina Neighborhood Contamination Caused By PG&E

SAN FRANCISCO, March 18, 2020 – Gross & Klein LLP filed a complaint today in the Northern District of California, on behalf of Dan Clarke, to complete the cleanup of PG&E’s contamination of the Marina neighborhood of San Francisco.

In the late 1800s and early 1900s, PG&E owned and operated two manufactured gas plants or “MGPs" in the present-day Marina neighborhood. MGPs were refineries that turned coal, oil, and combinations thereof into gas that was pumped to residences in their vicinity. The process created large amounts of highly toxic waste, including waste that contained large concentrations of carcinogenic poly-aromatic hydrocarbons.

As alleged in the complaint, PG&E’s operation and demolition of the MGPs also resulted in extensive lead contamination of former sites of the MGPs, sites on which there are now numerous homes and backyards in which children live and play. PG&E has vigorously resisted even testing for lead, pointing the finger for the indisputably high levels lead at a shifting group of candidates, such as far off downwind industrial operations.

As also alleged, PG&E, in public information provided to Marina parents and other homeowners, has intentionally minimized the health risks presented by the contamination to dissuade them from demanding a cleanup of their homes and has taken no action to clean up its contamination in the many public areas of the Marina neighborhood.

“PG&E has repeatedly demonstrated that it cannot be trusted to put the health and safety of the public first,” said Stuart G. Gross of Gross & Klein LLP. “PG&E consistently puts shareholder profits over people’s welfare, and this situation is no different.”

The original action was filed in 2014 and has resulted in a series of agreements and orders that have forced PG&E to conduct investigations and cleanups that it vigorously refused to do. This new complaint asks the court to finally order PG&E to pay for an independent third party to take over the cleanup and ensure its completion in a manner that will protect the health of Marina residents, workers, and visitors.

The lawsuit is titled, Clarke v. PG&E, No. 14-4393 (N.D. Cal.).

A copy of the complaint is included herewith and can be found here:

Stuart Gross Named a 2020 Super Lawyer in Business Litigation by Thompson Reuters

SAN FRANCISCO, February 1, 2020: Thompson Reuters has named Gross & Klein LLP partner Stuart Gross to its list of Super Lawyers in Northern California in the area of Business Litigation. The designation of Super Lawyer is given only to attorneys who “have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations.” Thompson Reuters has named Stuart a Super Lawyer every year since 2013, and designated him a Rising Star each of the previous three years.

See Stuart's listing here

Court Approves Final Settlement of Class Action Snow Removal Price Fixing Case in Truckee/ Tahoe

TRUCKEE CALIFORNIA, August 1, 2019 - The Nevada County Superior Court has entered a final order approving the settlement of a class action that alleged Snowtech, Inc. and Waltman Construction, Inc. – which merged in March 2017 to form Elements Mountain Co. – engaged in an almost decade-long conspiracy to fix the price of snow removal services sold to residents of Tahoe Donner, in Truckee, California.

The settlement provides substantial compensation to any person who purchased snow removal services from Snowtech or Waltman during any snow removal season beginning with the 2008-09 season and continuing through the 2016-17 season. A person who purchased snow removal services from Snowtech or Waltman during each of those seasons will receive a total of $390 in vouchers redeemable for snow removal services or a lower cash amount. Elements Mountain Co., moreover, is barred from raising snow removal prices in Tahoe Donner for the next three years (until the 2022/2023 snow removal season). The total value of the settlement, depending on the level of class member participation in the settlement, could well exceed $3,000,000.

No objections were received to the settlement, and only 20 out of over 8,000 potential class members opted out. Based on this response and the significant value that the settlement provides to victims of the conspiracy, the Court held that the settlement is “reasonable, adequate and fair to all members of the certified class.”

Mark L. Lasser of Lasser Law Office, a Truckee/ Tahoe attorney and resident who represented the class noted, “We believe this case sends an important message that no one is above the law, the antitrust laws must be respected, and will help to promote fair competition in the snow removal services market in Truckee/ Tahoe in the future.”

Stuart Gross of Gross & Klein LLP, who served as co-counsel in the class action lawsuit, stated, “This is a solid result. The settlement ensures that victims of the defendants’ conspiracy are well compensated for the injuries they suffered; and it sends a clear message that claims of illegal price-fixing will be aggressively pursued.”

The case is captioned: Cramer et al. v. Elements Mountain Co. et al., No. TCU17-6880

Copy of the Complaint can be found here.
Copy of the Final Order can be found here.
Copy of the Settlement Agreement can be found here.

Barlow Tenants Sue Landlord for Woeful Failure to Implement Legally Required Flood Protections

SANTA ROSA, July 3, 2019—Nine businesses filed suit today in Sonoma County Superior Court, alleging that the owners of The Barlow—before, during and after the flooding that occurred in late February of this year—woefully failed to implement legally required flood protections, causing Plaintiffs millions in losses.

The plaintiff businesses are: Community Market, Crooked Goat Brewing, Friedeman Wines, Two Dog Night Creamery, Scout West County, Tamarind Clothing, The Nectary, Victorian Farmstead Meat Company, and Fern Barn. The named defendants are Barney Aldridge and three companies owned and controlled by Mr. Aldridge: Barlow Star, LLC; Sebastopol Industrial Park, LLC; and Highway Partners, LLC. The Barlow is a high-end commercial development located in Sebastopol, California.

As alleged in the complaint, The Barlow’s development permit, the City of Sebastopol’s Municipal Code, and Plaintiffs’ leases all required the defendants fulfill detailed obligations before, during, and after any flood, so as to protect the plaintiffs and other businesses in The Barlow. Centermost were defendants’ obligations related to a system of flood barriers, drains, and sump pumps. If the landlord fulfilled these obligations during flooding, only a small amount of water would enter plaintiffs’ businesses and any that entered would be quickly drained away before rising to any depth.

In late February, heavy rains caused the nearby Laguna de Santa Rosa to flood. When this occurred, the Complaint alleges, it became clear that the defendants were completely unprepared to meet their obligations. Among the facts detailed in the Complaint, defendants had less than a tenth of the necessary personnel on site to install the flood barriers and those there were untrained. Defendants further lacked the necessary equipment to install the barriers, started the process of installation way too late, and installed the barriers incorrectly. As further detailed, the defendants failed, in advance of the flood, to make sure that the flood barriers were properly maintained, stored, labeled or staged and failed to ensure that the system of drains and pumps inside the plaintiffs’ businesses were in working order.

As a result of these failures, the complaint alleges, the plaintiffs suffered massive physical damage to their property, continuing loss of business, and harm to their business values. The complaint further alleges that defendants exacerbated and increased these injuries by punishing plaintiffs for engaging counsel and falsely claiming that the defendants did everything required to protect plaintiffs from flood damage. On May 23, 2019, the City of Sebastopol issued a report that confirms many of the Complaint’s allegations.

“The defendants’ conduct alleged in the Complaint represents the worst kind of selfish business practices,” said the plaintiff’s attorney Stuart G. Gross of Gross & Klein LLP. “Barney Aldridge and his companies ignore their explicit legal obligations to keep plaintiffs’ businesses safe from flood damage. Then, in an effort to save their own skin, they punished any tenant who stood up for themselves and spread a ridiculous narrative that they had done everything possible to protect their tenants. Given how badly the plaintiffs’ businesses were damaged, this created the false impression that these business could not properly be protected and so are less valuable. These plaintiffs are anchors of The Barlow and the broader community. They are owed better.”

The lawsuit is titled Crooked Goat Brewing, LLC, et al. v. Barlow Star, LLC, et al., No. SCV-264744 (Sonoma Superior Crt.).

Copies of the Complaint can be found here.

District Court Orders Caltrans to Prepare a Full Environmental Impact Statement of Its Proposed Project in Richardson Grove State Park

San Francisco, Calif.— Environmental plaintiffs represented by Gross & Klein LLP one another major victory in their fight against Caltran’s controversial proposal to expand Highway 101 through the ancient redwoods of Richardson Grove State Part. Judge William Alsup of the Northern District Court of California, in a scathing order, ruled that Caltrans must a prepare from scratch a full-Environmental Impact Statement (“EIS”) of the proposed project, rather than correct the more circumscribed Environmental Assess (“EA”) it had previously prepared.

This most recent order by Judge Alsup follows his previous decision from May 2019 in which he found that the agency’s EA, omitted consideration of key elements of the proposed project and thus failed to take the “hard look” required under the National Environmental Policy Act (“NEPA”). His most recent order enjoins Caltrans from doing any further work on the proposed project until it has satisfied the rigorous requirements of a full EIS.

This represents the sixth time in eight years that plaintiffs represented by Gross & Klein have attained rulings that stop the project.

“Caltrans may not see the value of these ancient redwoods, but thankfully the court does,” said Peter Galvin, co-founder and director of programs of the Center for Biological Diversity. “This strong ruling should convince Caltrans to abandon this destructive project once and for all. Long live the ancient redwoods of Richardson Grove.”

In his forceful order, Judge Alsup found, “After eight years of litigation, the Court is convinced and so finds that Caltrans has been bound and determined from the outset, regardless of the source, to arrive at a FONSI [(Finding of No Significant Impact)] and thus avoid the scrutiny of an EIS….Caltrans never gave the fair “hard look” required by NEPA but resorted to cherry picking the science to arrive at a preordained conclusion.” Judge Alsup sent the project back to the agency with a specific order: “At long last, the Court now orders that Caltrans stop trying to skate by with an EA/FONSI and that Caltrans prepare a valid EIS. Please do not try to systematically minimize the adverse environmental consequences and to cherry-pick the science.”

“It’s taken almost a decade, but today we have won what we have long sought: a court order mandating that Caltrans do a real and meaningful environmental review, said Tom Wheeler, executive director of the Environmental Protection Information Center (EPIC). “The ancient redwoods of Richardson Grove State Park are now protected from bad science and bulldozers.”

Plaintiff David Spreen remarked, “I hope Caltrans will take a fresh look at this project. Businesses, residents, and politicians along the North Coast corridor have made it clear that the HWY 101 Last Chance Grade section is far more important and needs to be prioritized by Caltrans now. Times have changed. Let's move forward.”

The case is titledBair, et al. v. Caltrans, et al., No. 17-6419-WHA (N.D. Cal.)

A copy of the order can be found here:

State Court Victory in Richardson Grove Case

Eureka, Calif.—Humboldt County Superior Court Judge Kelly Neel ruled in favor of environmental plaintiffs represented by Gross & Klein LLP in the latest salvo in the nearly decade-long effort to prevent the widening of Highway 101 through old-growth redwoods at Richardson Grove State Park. As a result of this court decision, Caltrans is not allowed to physically alter the proposed project area and that the agency would need to get court approval before moving forward. Plaintiffs include the Environmental Protection Information Center, Center for Biological Diversity, Californians for Alternatives to Toxics, Friends of Del Norte and four private citizens, Bess Bair, Trisha Lee Lotus, Jeffrey Hedin, and David Spreen. Plaintiffs Bair and Lotus both have generational family ties to the creation of the Park.

In her decision, Judge Neel found that Caltrans avoided public scrutiny by failing to solicit public comment on a significant piece of new information—a report from an arborist hired by Caltrans. In doing so, Judge Neel highlighted that the public and other agencies were deprived of their right to provide comment and feedback, something “essential” to the law.

Peter Galvin, Co-Founder of the Center for Biological Diversity stated, “We urge Caltrans to finally abandon their deeply misguided and destructive plan to widen Highway 101 through Richardson Grove State Park. Our ancient redwood trees are too important to pave over.”

“Caltrans has continued to view public opinion and opposition to the Richardson Grove Project as something that they can bulldoze through,” said Tom Wheeler, Executive Director at the Environmental Protection Information Center. “Four times, courts have returned the project to the agency, finding that their slapdash work violates the law.”

“It’s time for Caltrans to abandon this project,” said Stuart G. Gross of Gross & Klein, “but if they won’t, we’ll take them to court and beat them again.”

In 2010, Caltrans issued its Final Environmental Impact Report for the Richardson Grove Operational Improvement Project. In 2014, the First District Court of Appeals found that Caltrans had violated CEQA by failing to take a hard look at the project’s impacts to old-growth redwoods. After this decision, Caltrans attempted to cure its deficiency by hiring an arborist to examine project impacts. The arborist’s report, which presented new scientific data, including an untested rating system to predict impacts to tree health from project activities, was shielded from public comment through its release as part of an “Addendum” to the original CEQA documents. This added significant new information to the EIR without providing public notice and consultation with agencies.

The Court stated that “the rating system devised by the arborist may or may not rest on sound scientific footing. Without review and critique by others with expertise in the relevant fields, this footing remains untested. Peer review is essential to sound science.”

The lawsuit is titled, Bair et al., v. Caltrans, et al, Case No. CIV170543 (Humboldt Sup. Crt.).

A copy of the order can be found here:

Federal Court Again Halts Destructive Caltrans Project Through Ancient California Redwoods

SAN FRANCISCO— Conservation groups and Humboldt County residents, represented by Stuart Gross of Gross & Klein LLP, have won a federal court victory halting Caltrans’ controversial Richardson Grove highway-widening project. The project would needlessly harm ancient redwood trees in California’s iconic Richardson Grove State Park along Highway 101 in Humboldt County. The U.S. District Court in San Francisco struck down the Caltrans plan in a 26-page order issued late Friday afternoon.

 “We’re elated that the court rejected Caltrans’ misguided and deeply destructive plan,” said Peter Galvin, co-founder and director of programs at the Center for Biological Diversity. “The ancient trees and wildlife of Richardson Grove are too important to pave over.”

 "For too long, Caltrans has pushed this unpopular project at the expense of the taxpayers and the environment," said Tom Wheeler, executive director of EPIC. "EPIC hopes that Caltrans focuses on road projects that are actually a priority, like Last Chance Grade."

 The highway-widening project could damage the roots of more than 100 of Richardson Grove’s ancient redwoods, including trees up to 3,000 years old, 18 feet in diameter and 300 feet tall. Caltrans has pursued this project solely to incrementally improve passage for heavy, oversized commercial trucks, with trailers up to 53 feet long.

 In an order setting aside Caltrans’ inadequate environmental review and approval for the project, Judge William Alsup found that the agency failed to address four main issues: the roots of several ancient redwoods would risk suffocation due to increased paving in their root zones; construction within their structural root zones has the potential to impact or topple trees; heavy oversized trucks are more likely to collide with trees in the grove and the damage to redwoods could be more severe; and noise impacts from more and larger trucks rumbling through the park will be much worse than Caltrans is admitting and would diminish public enjoyment of the grove.

 Judge Alsup stated that “all of these old-growth redwoods have lived many times longer than our nation has existed,” and “if we were today considering building a major highway through a grove of ancient redwoods, almost certainly the public would demand that the grove be spared and that the highway bypass the park.”

 The court will next take arguments on whether Caltrans must prepare a new environmental assessment or provide a more thorough Environmental Impact Statement. Judge Alsup noted that studies cited by Caltrans were not provided to the public and that mastering Caltrans’ incomplete and confusing administrative record has been “awful” and “resembled decoding hieroglyphics.”

“This is the third time that a court has struck down Caltrans’ approval of this proposed project,” said Stuart G. Gross of Gross & Klein LLP. “If Caltrans is going to propose a construction project in the midst of 3,000 year old redwoods, it needs to adequately and accurately assess the project’s environmental impacts. It appears incapable of doing so and should reconsider doing the project at all.”

 Background

 Richardson Grove State Park, where tourists often first encounter large redwoods when heading north on Highway 101, is home to one of the last protected stands of accessible old-growth redwood trees in the world. The park has essential habitat for threatened and endangered species such as the northern spotted owl, and its creeks support runs of imperiled salmon and steelhead trout.

 Caltrans first proposed the project in 2007, claiming the widening is needed to accommodate large-truck travel. But Highway 101 through Richardson Grove is already designated for larger trucks and does not have significant safety problems. The agency cannot demonstrate that the project is necessary for safety or would benefit the local economy.

 Litigation against the Richardson Grove project has been successful in both state and federal court. This is the third federal lawsuit challenging Caltrans’ violations of the National Environmental Policy Act, due to inadequate evaluation of the environmental impacts of cutting into or paving over tree roots.

 A state court ruled in May 2018 against a Caltrans motion to dismiss the state lawsuit. The 2010 federal lawsuit was filed by the Center for Biological Diversity, Environmental Protection Information Center, Friends of Del Norte, Californians for Alternatives to Toxics, and longtime local residents Bess Bair, Trisha Lee Lotus, Jeffrey Hedin and David Spreen.

 In 2012 the federal court issued a temporary injunction stopping the project, citing numerous errors in Caltrans’ mapping and measurement of affected old-growth redwoods and use of faulty data. Previous legal challenges blocked construction and forced Caltrans to rescind all project approvals in 2014. The agency reapproved the project in 2017, claiming it had made significant changes. However, Caltrans still proposed to cut into tree roots, threatening the stability and viability of old-growth redwoods.

 The lawsuit is titled, Bair et al., v. Caltrans, et al, No. 17-6419 (N.D. Cal.).

 A copy of the Summary Judgment Order can be found here: http://www.grosskleinlaw.com/s/Richardson-Grove-Federal-Court-Summary-Judgment.pdf

Stuart Gross Named a 2019 Super Lawyer in Business Litigation by Thompson Reuters

SAN FRANCISCO, February 1, 2019: Thompson Reuters has named Gross & Klein LLP partner Stuart Gross to its list of Super Lawyers in Northern California in the area of Business Litigation. The designation of Super Lawyer is given only to attorneys who “have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations.” Thompson Reuters has namedStuart a Super Lawyer every year since 2013, and designated him a Rising Star each of the previous three years.

See Stuart's listing here.