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Court Finds County Liable For Failing To Direct A Community Water System To Notify Its Customers Of Contamination

By: Alfred E. Smith, Martin A. Mattes
10/02/07

In Guzman v. County of Monterey, suit was filed on behalf of 80 men, women and children residing in Monterey County against the County of Monterey, the Monterey County Health Department, and the owner and operator of the Jensen Camp community water system. (California Court of Appeal, Sixth Appellate District, Monterey County Superior Ct. No M71543). Plaintiffs alleged that water supplied by the Jensen Camp community water system was contaminated, and that the County failed to provide notification of this contamination in violation of the California Safe Drinking Water Act, California Health and Safety Code sections 116270 et seq. ("the Act"), and title 22 of the California Code of Regulations ("the Regulations").

Although the County did not own and operate the water system, plaintiffs alleged that for purposes of California Health and Safety Code section 116330, the County was the "local primacy agency" responsible for ensuring that the system operated in compliance with the Act. Plaintiffs argued that the Act and the Regulations imposed a mandatory duty on the County to: (1) receive the system’s water quality reports; (2) review those reports; (3) report water quality detections exceeding the maximum contaminant level ("MCL") to the Department of Health Services, now the Department of Public Health ("DPH"); (4) notify the system of its ongoing monitoring obligations; and (5) insure that the system gives notice of the contamination to its consumers.

Plaintiffs alleged that the County violated the requirements of the Act and the Regulations because monitoring reports showed fluoride levels in excess of the MCL at various times, including 1995, 1999 and 2002. These reports were sent to the County, but the County did not review the reports and did not direct the system operator to notify consumers of the contamination until 2003.

Before the trial court, the County responded that there was no mandatory duty and no special relationship between the County and the community water system, and that it was immune from liability under the Government Code. Ruling in favor of the County, the trial court dismissed the case, sustaining the County’s demurrer without leave to amend.

Plaintiffs then appealed. Reversing the trial court, the Court of Appeal held that the regulatory scheme created by the Act and the Regulations imposed a mandatory duty requiring the County to: (1) perform a monthly review of all water quality monitoring reports it received; (2) direct the water system operators to notify water users when those reports indicate contamination; and (3) specify the form and manner in which the notification is to take place. The court did not, however, go so far as to require the County to insure that the notice was given or that it was given in any particular manner. The court ruled:

"We conclude that County had the mandatory duty, under [Code of Regulations, title 22,] sections 64256 and former sections 64464.3 and 64464.1, to review water quality monitoring reports, to direct the water system to notify its customers that the water was contaminated, and to specify the form and manner in which that notification is to take place. We do not take the further step of holding that the agency had a mandatory duty to insure that the notice was given or that it was given in any particular manner."

Finally, although noting there is a question of fact as to whether the County exercised "due care" in reviewing and responding to the water quality reports for purposes of Plaintiffs’ negligence claims, the court concluded that the County was not protected by immunity under relevant provisions of the Government Code.

The Court of Appeal’s decision, largely sustaining the plaintiffs' claims, has important implications respecting the monitoring and reporting requirements for local primacy agencies under the Act. Even where an agency is not the owner or operator of a system, agencies may still be held liable if they do not perform a monthly review of water quality monitoring reports, and if they do not direct system operators to notify their customers when contamination exists. Agencies should take caution to ensure that monitoring reports are timely reviewed and that notifications are given in accordance with the Court’s opinion.

Under the regulatory scheme governing small water purveyors such as the Jensen Camp community water system, a county will typically be the local primacy agency delegated the duty to oversee the water quality monitoring process. As a result of the Guzman decision, such community water systems should anticipate closer oversight by their local primacy agency. Where delegation to a local primacy agency has not occurred, either because the water purveyor serves a larger customer base or because the county has not accepted the delegation, DPH ultimately may be held to the same duties as the Guzman decision imposes on the County. In consideration of this possibility, DPH may more closely review the larger water purveyors’ water quality monitoring reports and may more often require notification of customers.

To view a complete copy of the Court’s decision, click here.

Alfred E. Smith, II specializes in environmental, water and complex commercial litigation.  He represents public and private water purveyors, major water users, corporations and public agencies on matters including environmental compliance, water rights disputes, conjunctive use, public utility regulation, groundwater management and litigation over allegedly contaminated water and soil.  Alfred is a graduate of the Harvard Law School, and he is an appointed member of the Association of California Water Agencies’ (ACWA) Legal Affairs Committee.  He can be reached at (213) 612-7800 or asmith@nossaman.com.

Martin A. Mattes has over 30 years of experience focusing on law and policy relevant to the energy, water and telecommunications industries, with particular emphasis on regulation of investor-owned public utilities by the California Public Utilities Commission (CPUC) in an environment of emerging competition. He represents clients providing or seeking to provide energy, water, and telecommunications services on a public utility basis, offering services in competition or cooperation with public utilities, or taking services from such companies. He can be reached at (415) 438-7273 or mmattes@nossaman.com.

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