North Hempstead seeks to have PSEG pole suit dismissed

The Town of North Hempstead has asked a federal judge to dismiss PSEG Long Island's lawsuit seeking to nix a town law requiring warning labels on toxic utility poles, saying the signs are "factual" and protect residents' health.

In a 25-page filing Friday, lawyers for North Hempstead took issue with PSEG and LIPA's view that the law violates the utilities' free speech by requiring them to post "disputed phrases and accompanying text urging the public to take action."

North Hempstead noted that most of the language for the small placards came from a similar warning on PSEG's own website, urging caution on the part of customers. The law requires that the utilities place the placards on chemically treated poles, urging residents to "avoid prolonged direct contact" and wash exposed areas.

PSEG in 2014 installed more than 200 large utility poles in the town. All contain a wood preservative, pentachlorophenol, that has been deemed toxic to humans and a probable carcinogen.

Fines for violation of the law have been suspended pending the outcome of the lawsuit.

The town argued that the signs fulfill its responsibility to "protect its residents' health, safety and welfare" and do not violate the utility's constitutional rights.

The signs, the town said, are "consistent with federal and state schemes for regulation of pesticides."

The town further noted that PSEG and LIPA have regulations that "recognize the common practice of placing notes of garage sales, lost pets, festivities and political advertisements" on poles.

The State Legislature is considering a bill that would require not only labeling of toxic poles but also ban the use of the chemical, commonly known as penta, on poles, the town said.

"In sum, the requirement of a warning sign is more similar to the signs reminding restaurant employees to wash their hands after using the bathroom than political speech, and should be analyzed under the commercial speech standards," the town argued.

A PSEG spokeswoman did not respond to a request for comment.