Residents of a Cachagua mobile home park who unknowingly drank water tainted with dangerous levels of fluoride can sue the county for failing to inform them of the contamination, the 6th District Court of Appeal has ruled.
In a published opinion that would set precedent on application of the state’s Safe Drinking Water Act, the court’s three-judge panel ruled the county had a “mandatory duty” not only to require the property owner to regularly test the water, but to review the results and order the owner to alert his residents when contamination was found.
“It would defeat the purpose of the law, which is ‘to ensure that the water delivered by public water systems of this state shall at all times be pure, wholesome and potable,’ if these explicit duties did not also include the duty to direct the water system to properly notify its water consumers when their drinking water is contaminated,” Justice Eugene Premo wrote in the 14-page opinion. Premo was joined in the ruling by Presiding Justice Conrad Rushing and Justice Franklin Elia.
The county argued in Monterey County Superior Court and before the appellate panel that its only obligation was to require the testing.
Deputy County Counsel Patrick McGreal, who represented the county, said he will almost certainly appeal the ruling.
“I heard about the decision when I got a call from another public agency which said it wanted to join in an appeal, because this decision is just plain wrong,” he said. “At this point, we almost have an obligation to appeal because it deviates so far from existing law.”
McGreal declined to name the agency that contacted him.
The opinion reverses an April 2006 ruling by Superior Court Judge Kay Kingsley, who agreed with the county’s argument and released it as a defendant in the case. The lawsuit will be sent back to Kingsley for setting of a trial date.
The residents of Jensen Camp sued the county and then-Jensen Camp owner Rick Pinch in 2004, one year after they learned by accident that their water was tainted with naturally occurring fluoride.
The residents’ attorney, Brian Burchett of San Diego, told the appellate panel one of the residents went to the county in 2003 to complain about discolored water. A clerk checked the file on the property and was stunned to see test results showing four times the safe level of fluoride in the water since 1995.
Compounding the problem, said Burchett, is the fact that the county Health Department did react to high levels of bacteria shown in the tests, ordering the residents to boil their water. The boiling action, he said, destroyed the bacteria but evaporated some of the pure water, increasing the concentration of fluoride.
Fluoride is effective as a topical deterrent to tooth decay, Burchett said. In fluoridated water systems, he said, it is swishing with the water, not its ingestion, that prevents cavities. Even then, less than 1 part per million is added to the water.
Water at Jensen Camp, Burchett said, was tested as high as 8.5 parts per million.
At elevated levels, Burchett said, fluoride actually rots teeth and causes bone-density, kidney and neurological disorders, all problems experienced by residents at Jensen Camp.
The 6th District court has historically been stingy with “published,” precedent-setting opinions, electing instead to issue unpublished opinions that affect only the case at hand.
Burchett said his research shows that the appellate court’s ruling is the first by any state appeals court that spells out the government’s responsibilities under the Safe Drinking Water Act. The wording of the act is detailed and unambiguous, he said, “down to where you place the stamp.”
“I think (the court) got it right,” he said. “The legislature wanted to leave absolutely nothing to the discretion of the county. So it was baffling to us that the county was claiming no specific mandatory duties and that Kingsley agreed.
“We’re glad the court of appeal saw it that way and the county can now be held responsible for the injuries they caused these people.”
The lawsuit is still pending against Pinch. According to the complaint, he sold the camp to one of his residents in 2003 without informing him of the water problems. That resident, Javier Guzman, is the lead plaintiff in the lawsuit.