California River Watch v. City of Livingston

Meeting Date: April 15, 2014

Closed Session Agenda Item #4. Conference with Legal Counsel – Existing Litigation

[Government Code Section 54956.9(d)(1)]

California River Watch v. City of Livingston

United States District Court – Eastern District of California

Case No. 1:14CV-00437-AWI-MJS

Note from TheGardeningSnail: Parts of this page may have been prepared by running a PDF file through a program that converts Image to Print. So there may be a few textual Gremlins that have slipped in. I may also have broken up some of the longer paragraphs, for easier reading.

To read an actual PDF Version of the Original Complaint and Exhibits CLICK HERE

Case 1:14-at-00208 Document 1 Filed 03/26/14 Page 1 of 13

1 Jack Silver, Esq. SB #160575

E-mail:lhm 28843@ sbcglobal.net

2 Law Office of Jack Silver Post Office Box 5469

3 Santa Rosa, CA 95402-5469

Tel.(707) 528-8175

4 Fax.(707) 528-8675

5 David J. Weinsoff, Esq. SBN 141372 Email: W einsoff@ ix.netcom .com

6 Law Office of David J. Weinsoff 138 Ridgeway Avenue

7 Fairfax, CA 94930 Tel. (415) 460-9760

8 Fax. (415) 460-9762

9 Attorneys for Plaintiff

CALIFORNIA RIVER WATCH

10

11 UNITED STATES DISTRICT COURT

12 EASTERN DISTRICT OF CALIFORNIA

13 CALIFORNIA RIVER WATCH, a 501(c)(3), nonprofit, Public Benefit

14 Corporation,

15 Plaintiff,

v.

16

CITY OF LIVINGSTON; DOES

17 1-10, Inclusive,

18 Defendants.

/

19

Case No.:

COMPLAINT FOR INJUNCTIVE RELIEF, CIVIL PENALTIES,

RESTITUTION AND REMEDIATION

(Environmental – Safe Drinking Water Act 42 U.S.C. § 300f et seq.)

20 NOW COMES Plaintiff, CALIFORNIA RIVER WATCH (“RIVER WATCH ”), by and

21 through its attorneys, and for its Complaint against Defendants, CITY OF LIVINGSTON and

22 DOES 1-10, Inclusive, (collectively hereafter, “the CITY”) states as follows:

23 I. NATURE OF THE CASE

24 1. This is a citizens’ suit for relief brought by RIVER WATCH under the Federal Safe

25 Drinking Water Act (“SDWA”), 42 U.S.C. §300f et seq., specifically SDWA §1449, 42 U.S.C.

26 §300j-8, to prevent the CITY from repeated and ongoing violations of the SDWA. These

27 violations are detailed in the December 10, 2013 Notice of Violations and Intent to File Suit

28 (“SDWA Notice”) made part of these pleadings and attached hereto as EXHIBIT A.

1

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Complaint

Case 1:14-at-00208 Document 1 Filed 03/26/14 Page 2 of 13

1 2. RIVER WATCH alleges the CITY illegally fails to ensure that its public community

2 water system, regulated under California Water Permit No. 03-11-98P001, does not exceed the

3 Maximum Contaminant Level (“MCL”) established by the U.S. Environmental Protection

4 Agency (“EPA”) for arsenic.

5 3. RIVER WATCH seeks declaratory relief, injunctive relief to prohibit future violations,

6 the imposition of civil penalties, and other relief for the CITY’s violations as set forth in this

7 Complaint.

8 II. PARTIES TO THE ACTION

9 4. RIVER WATCH, is, and at all times relevant to this Complaint was, an Internal Revenue

10 Code § 501(c)(3) nonprofit public benefit corporation duly organized under the laws of the State

11 of California, with headquarters and main office located at 290 S. Main Street, #817,

12 Sebastopol, California. RIVER WATCH is dedicated to protecting, enhancing and helping to

13 restore the groundwater and surface water environs of California including, but not limited to,

14 its rivers, creeks, streams, wetlands, vernal pools, aquifers, and associated environs, as well as

15 to educate the public concerning environmental issues associated with these environs. Members

16 of RIVER WATCH reside in or regularly visit central California including the City of

17 Livingston where the facilities under the CITY’s operation and/or control which are the subject

18 of this Complaint are located. Said members drink the waters affected by the CITY’s illegal

19 actions as alleged herein. Said members have environmental and personal health and safety

20 interests in said drinking water which are or may be adversely affected by the CITY’s violations

21 as alleged herein. Furthermore, the relief sought will redress the injury in fact, likelihood of

22 future injury and interference with the interests of said members.

23 5. RIVER WATCH is informed and believes, and on such information and belief alleges,

24 that the CITY, with headquarters located at 1416 “C” Street, in Livingston, California, is now,

25 and at all times relevant to this Complaint was, a “supplier of water” as defined by 42 U.S.C. §

26 300f(5) and 40 C.F.R. § 121.2. At all times relevant hereto, the CITY owned and operated a

27 “public water system,” as defined by 42 U.S.C. § 300f(4) and 40 C.F.R. § 141.2 and permitted

28 by the California Department of Public Health.

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Complaint

Case 1:14-at-00208 Document 1 Filed 03/26/14 Page 3 of 13

1 6. RIVER WATCH is informed and believes, and on such information and belief alleges,

2 that Defendants DOES 1 – 10, Inclusive, respectively, are persons, partnerships, corporations and

3 entities, who are, or were, responsible for, or in some way contributed to, the violations which

4 are the subject of this Complaint or are, or were, responsible for the maintenance, supervision,

5 management, operations, or insurance coverage of the CITY’s facilities and operations as

6 identified in the SDWA Notice and this Complaint. The names, identities, capacities, and

7 functions of Defendants DOES 1 – 10, Inclusive are presently unknown to RIVER WATCH.

8 RIVER WATCH shall seek leave of court to amend this Complaint to insert the true names of

9 said DOES defendants when the same have been ascertained.

10 III. JURISDICTIONAL ALLEGATIONS

11 7. Subject matter jurisdiction is conferred upon this Court by SDWA §1449(a), 42 §300j-

12 8(a), which states in part,

13 “any person may commence a civil action on his own behalf against any person

. . . .who is alleged to be in violation of any requirement prescribed by or under

14 [SDWA] …’ The United States district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce

15 in an action brought under [SWDA] any requirement prescribed by or under [SWDA] …”

16

17 For purposes of SDWA §1449(a), “the term ‘person’ means an individual, corporation, 18 association …” under SDWA §1401(12), 42 U.S.C. §300f(12).

19 8. All violations and activities complained of in this Complaint occur at the public water

20 system(s) owned and operated by the CITY.

21 9. Members and supporters of RIVER WATCH reside in or regularly visit the CITY and

22 drink the water provided by the CITY. The health interests of RIVER WATCH and its members

23 may be, have been, are being, and will continue to be adversely affected by the CITY’s unlawful

24 violations as alleged herein. RIVER WATCH contends there exists an injury in fact to its

25 members, causation of that injury by the CITY ‘s complained of conduct, and a likelihood that

26 the requested relief will redress that injury.

27 10. Pursuant to SWDA §1449(b), 42 U.S.C. §300j-8(b), RIVER WATCH gave notice of the

28 violations alleged in this Complaint more than sixty days prior to commencement of this action

3

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Complaint

Case 1:14-at-00208 Document 1 Filed 03/26/14 Page 4 of 13

1 to: (a) the CITY, (b) the United States EPA, Federal and Regional, (c) the State of California

2 Department of Public Health, and (d) the State of California Department of Justice.

3 IV. STATUTORY AND REGULATORY BACKGROUND

4 11. SDWA §1412(b)(1)(A), 42 U.S.C. §300g-1(b)(1)(A), requires the EPA to identify

5 contaminants in public water supply systems which may have an adverse human health effect

6 and for which regulation would present a “meaningful opportunity” for reduction of that health

7 risk. For each of the contaminants identified SDWA §1412(b)(1), SDWA §1412(b)(1)(E)

8 requires the EPA to establish maximum contaminant level goals (“MCLGs”) as well as

9 Maximum Contaminant Levels (“MCLs”). The EPA established an MCL for arsenic at 10µ/l 10 (see 41 C.F.R. §141.62(b)(2).

11 12. A violation of the SWDA occurs when testing/monitoring indicate that the level of a

12 contaminant in treated water is above the MCL.

13 V. VIOLATIONS

14 13. RIVER WATCH alleges the CITY’s recurring violations of the MCLs for arsenic as

15 detailed in the SDWA Notice, are violations of SDWA §1412, 42 U.S.C. §300g-1. The

16 violations are established in the California Department of Public Health’s “All Source

17 Chemical Monitoring” files and the CITY’s records. RIVER WATCH received a letter dated

18 January 16, 2014 from the CITY’s City Manager Jose Ramirez stating, in relevant part,

19 “[t]he City operates a community water system under California Water Permit No. 03-11-98P001. The City’s source of water supply is exclusively

20 groundwater. The City currently has eight (8) active wells. The quality of the water produced by most of the City’s wells is marginal and in some cases it

21 exceeds the maximum contaminant level (MCL) for constituents like arsenic or manganese. Well No. 13 has [except in 2010 and 2011 when Well No. 13 was

22 not operated] been exceeding the arsenic MCL of 10 μg/l since 2010.”

23 City Manager Ramirez’s letter states that the CITY anticipates completion of a “wellhead

24 treatment system to remove arsenic at Well No. 13 and a new well to augment capacity. The

25 expected completion date for the wellhead treatment system at Well No. 13 is the fourth quarter 26 of 2015.”

27 14. The enumerated violations are detailed in the SDWA Notice, the CITY’s January 16,

28 2014 correspondence with RIVER WATCH, and with the section of the SDWA violated by the

4

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Complaint

Case 1:14-at-00208 Document 1 Filed 03/26/14 Page 5 of 13

1 described activity set forth below.

2 15. The locations of the discharges are the discharge points as described in the SWDA

3 Notice.

4 VI. CLAIM FOR RELIEF

5 Violation of 42 U.S.C. §300g-1, 40 C.F.R. Part 141 –

6 Exceeding the MCL for Arsenic

7 16. RIVER WATCH re-alleges and incorporates by reference the allegations of Paragraphs

8 1 through 15 above as though fully set forth herein, including all allegations in the SDWA

9 Notice. RIVER WATCH is informed and believes, and on such information and belief, alleges

10 as follows:

11 17. The CITY has violated and continues to violate the MCL for arsenic from Well No. 13

12 as evidenced by the list of reported violations it has provided the California Department of

13 Public Health (identified in the Department’s Compliance Order No. 03-11-13R-002) and

14 confirmed in its January 16, 2014 letter to RIVER WATCH.

15 18. The violations of the CITY as alleged in this Complaint are ongoing and will continue

16 after the filing of this Complaint. RIVER WATCH alleges herein all violations which may have

17 occurred or will occur prior to trial, but for which data may not have been available or submitted

18 or apparent from the face of the reports or data submitted by the CITY to the California

19 Department of Public Health prior to the filing of this Complaint. RIVER WATCH will amend

20 this Complaint if necessary to address the CITY’s Federal violations which may occur after the

21 filing of this Complaint. Each of the CITY’s violations is a separate violation of the SDWA.

22 19. RIVER WATCH alleges that without the imposition of appropriate civil penalties and the

23 issuance of appropriate equitable relief, the CITY will continue to violate the SDWA as well as

24 Federal standards with respect to the enumerated discharges and releases alleged herein.

25 Further, that the relief requested in this Complaint will redress the injury to RIVER WATCH and

26 its members, prevent future injury, and protect the interests of its members which are or may be

27 adversely affected by the CITY’s violations of the SDWA. 28 //

5

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Complaint

Case 1:14-at-00208 Document 1 Filed 03/26/14 Page 6 of 13

1 20. RIVER WATCH alleges that continuing violations of the SDWA by the CITY at Well

2 No. 13 will irreparably harm RIVER WATCH and its members, for which harm RIVER

3 WATCH and its members have no plain, speedy or adequate remedy at law.

4 VII. RELIEF REQUESTED

5 WHEREFORE, RIVER WATCH prays that the Court grant the following relief:

6 21. Declare the CITY to have violated and to be in violation of the SDWA;

7 22. Issue an injunction ordering the CITY to immediately operate its public community water

8 system in compliance with the SDWA;

9 23. Order the CITY to provide public notification by mail and through newspapers of general

10 circulation within two (2) days of receipt of a laboratory report identifying a violation of

11 an MCL to parents/guardians of children, pregnant women, the elderly, and the infirm

12 (among other at-risk individuals);

13 24. Order the CITY to fund a Supplemental Environmental Project providing potable

14 drinking water to parents/guardians of children, pregnant women, the elderly, and the

15 infirm (among other at-risk individuals from arsenic in drinking water) whose doctors

16 provide a written request to the CITY;

17 25. Order the CITY to pay civil penalties per violation/per day for its violations of the

18 SDWA;

19 26. Order the CITY to pay RIVER WATCH’s reasonable attorneys’ fees and costs (including

20 expert witness fees); and,

21 27. Grant such other and further relief as may be just and proper. 22

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23 DATED: March 5, 2014 LAW OFFICE OF DAVID J. WEINSOFF 24

25 By:____________________________ DAVID J. WEINSOFF

26 Attorney for Plaintiff

CALIFORNIA RIVER WATCH

27

28

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