by Tim Sheehan, originally posted on September 9, 2016

Attorneys representing three households in northeast Fresno have filed a potential class-action lawsuit against the city and others over discoloration and lead in water coming from faucets in their homes.

The lawsuit, filed Friday afternoon in Fresno County Superior Court, is the first of potentially several that could be brought against the city. It asserts that “wrongful conduct” by the city, the Department of Public Utilities, and two contractors hired to install water meters have caused harm and damage to “potentially thousands of class members” following the introduction of treated water from the city’s Northeast Surface Water Treatment Plant to the drinking water system in that part of Fresno. The treatment plant became operational in mid-2004.

Attorneys Raymond Boucher of Woodland Hills, Esther Berezofsky of New Jersey and Gregory Owen of Valencia are representing Heather Drive neighbors Karen and Michael Micheli and Jeanette Grider, and Faith and David Nitschke, who live on June Lake Lane, “on behalf of themselves and all persons residing within and around the northeast Fresno … area, who have suffered harm from being supplied degraded and substandard water by the city’s public water system.”

The residents “have suffered harm and incurred damages and losses related to the contaminated water supplied by Fresno’s public water system, which caused the corrosion of pipes and plaintiffs to be exposed to excess levels of lead and other hazardous substances,” the suit alleges. “The city’s failure to test, report and investigate its issues with its water supply and notify and warn the public of the same is the basis of the defendants’ misconduct.”

Among the damages asserted in the lawsuit are “diminished property values, the cost of contaminated water, and the costs of diagnostic testing for potential personal injuries related to their ongoing and continuous exposure to lead.”

Fresno city spokesman Mark Standriff said city officials had not yet seen the lawsuit and thus could not comment on its allegations. He added that the city typically does not comment on pending litigation.

Change made

For decades, Fresno’s drinking water was supplied solely by groundwater wells. That changed in 2004, when the city launched its surface water treatment plant at Chestnut and Behymer avenues to use water from nearby mountain reservoirs, delivered by way of the Enterprise Canal, to augment wells in the northeast part of the city.

The lawsuit contends that while the pumped groundwater was not harmful to residential water pipes, “the Enterprise Canal water has caused and continues to cause such harm” because of characteristics such as pH and hardness that differ substantially from groundwater.

The attorneys also said the city was warned of potential problems with discolored water and leaching of metals, including lead, by a 1998 treatability study into the effects of introducing surface water into a system that had historically relied on groundwater. The surface water, they assert, accelerated the corrosion of galvanized iron pipes in residents’ homes.

“The treatability study warned that if they moved from groundwater to surface water, the water chemistry would necessarily change the corrosion process within the pipes,” Berezofsky said Friday evening. “That, combined with the installation of water meters without adequate protection and connecting unlike metals, caused the acceleration of the corrosion process, contributing to the leaching of lead” into residents’ water.

Two contractors hired by the city in 2010 to install water meters in Fresno, Vulcan Construction & Maintenance Inc. and Measurement Control System, were negligent in installing the meters by failing to install “dielectric connections” – a non-reactive insert – “between the brass meters and the galvanized piping” leading to residents’ homes, the lawsuit states.

Attorneys said each of the homeowners already had filed claims for damages with the city – a necessary precursor before filing a lawsuit. The complaint reports that the Michelis filed their claim with the city on Aug. 22, the Nitschkes on Aug. 29, and Grider on Wednesday.

Complaints raised

The controversy over water discoloration, as well as lead above the U.S. Environmental Protection Agency’s acceptable levels, exploded in early January, when Grider posted a query on the NextDoor social media site asking if any other northeast Fresno residents were seeing discolored water in their homes.

Within days, a slew of responses revealed that the scope of the problem was well beyond a few isolated instances. But some residents have said they had complained to the city about discoloration in their water for years – some as far back as 2004, when the treatment plant began operating.

“The city denies having knowledge of this widespread issue, contending that it only recently discovered the issue in January 2016,” the lawsuit argues.

The class-action status is being sought for any customers in northeast Fresno who have been harmed by the city’s water and violations of federal and state lead and copper rules. The suit contends that because thousands of properties are served by the water treatment plant and because there is “a well-defined community of interest,” it qualifies as a class action.

The attorneys propose that water customers would qualify under the class-action status if they own or lease property with galvanized pipes and were receiving water since the plant went into operation in 2004.

Attorneys argue in the lawsuit that without class action status, residents would be dealt with inconsistently and would not be able to “obtain effective and economical legal redress.”