A federal judge has granted a request by PSEG Long Island and LIPA to strike down a North Hempstead Town ordinance that would have forced the utilities to place warning signs on chemically treated utility poles.
In a 38-page ruling on Wednesday, U.S. District Judge Arthur D. Spatt said the ordinance “violates the First Amendment rights” of the utilities, and said they need not comply.
The law “constitutes an impermissible regulation of noncommercial speech, which violates the First Amendment rights of the plaintiffs, as a matter of law,” Spatt wrote.
North Hempstead passed the ordinance in September 2014, after PSEG finished a transmission line project that required installation of 213, 85-foot poles, including 23 on rights of way in the town.
Town spokeswoman Rebecca Cheng said, “We are disappointed that the court found that the town’s effort to protect residents by requiring warning signs on utility poles treated by Penta violated the First Amendment.”
She said local parents “should continue to make sure that their children are careful around the poles and everyone should wash their hands if they come in contact with them.”
The poles are treated with Pentachlorophenol, a wood preservative that the U.S. Environmental Protection Agency has listed as highly toxic to humans and a “probable” carcinogen.
The North Hempstead law required signs to be posted on every fourth pole in the town, warning residents about the chemical and advising them to avoid contact.
PSEG and LIPA filed suit in federal court seeking to invalidate the law, saying it interfered with their right to free speech. The 4.5-by-7-inch signs were never put up.
Spatt said North Hempstead could have used other means to warn residents of the hazards of touching the poles.
“Even if the court were to assume that the risk to town residents of exposure to chemically treated wood utility poles constitutes a ‘compelling government interest . . . there is little doubt that less restrictive means of addressing that concern are available, which do not implicate the First Amendment rights of the utility companies,” Spatt wrote.
Assemb. Fred Thiele (I-Sag Harbor) and Kenneth LaValle (R-Port Jefferson) introduced state legislation in 2014 to ban the preservative’s future use on poles and require labels on existing poles. The measure did not pass.
PSEG has since turned to another chemical, chromated copper arsenate, to treat smaller poles in residential neighborhoods. Penta is still used for larger transmission-line poles.
PSEG spokesman Jeff Weir said the company was “pleased by the ruling.”
Port Washington resident Chuck Idol, an outspoken critic of penta-treated poles, called Spatt’s ruling “wrong,” particularly for the “heavily leaching poles” near schools and hospitals. “It’s a risk issue,” Idol said.