HARTWELL CORPORATION v. [And eight other cases.] * (1999)

These eight writ petitions and one appeal, consolidated for decision, raise questions about the relationship between court actions and California Public Utilities Commission (PUC) proceedings.   The primary question is whether the PUC's jurisdiction over public utilities providing water to customers in the San Gabriel Valley preempts damage actions by valley residents for injury to persons and property allegedly caused by harmful chemicals in the water.   We conclude that the PUC's statutory authority over water quality and its exercise of jurisdiction in addressing water quality issues preclude private actions against the regulated utilities, but do not bar the plaintiffs' actions against defendants not regulated by the PUC.

Overview

San Diego Gas & Electric Co. v. Superior Court [Covalt] (1996) 13 Cal.4th 893, 55 Cal.Rptr.2d 724, 920 P.2d 669 (Covalt), which we will discuss in some detail below, is at the center of the writ petitions and the appeal to this court.  Covalt found the PUC's jurisdiction to be exclusive over issues involving the public health risks arising from electric and magnetic fields (EMFs) attributed to powerlines owned by regulated utilities.   Long before the Covalt plaintiffs brought their action, the PUC had investigated and reported its conclusion that EMF hazards were not scientifically established.  (Id. at pp. 927-928, 55 Cal.Rptr.2d 724, 920 P.2d 669.)   These cases differ from Covalt because the PUC (acting jointly with the Department of Health Services [DHS] ) recognizes that certain chemicals may be hazardous to water consumers and imposes maximum contaminant levels (MCLs) for most of the chemicals involved in these actions.   However, the PUC's investigation into the impact of these chemicals in the San Gabriel Valley and elsewhere commenced only after the four actions involved here were filed.

The questions presented to us are (1) whether, as plaintiffs claim, the Los Angeles County trial courts erred in staying plaintiffs' actions pending results of the PUC investigation and the Ventura County Superior Court erred in dismissing the action against the regulated utilities and (2) whether, as the regulated utility defendants ¹ claim, the Los Angeles courts should have gone a step further and dismissed plaintiffs' actions because the PUC's jurisdiction is exclusive.   The aggrieved nonregulated water providers and industrial defendants present a third question in the action transferred to Ventura County Superior Court (the Santamaria action, discussed infra ):  (3) whether PUC exclusivity, if it exists, also should prevent plaintiffs from proceeding against water providers and industrial defendants the PUC does not regulate and is not directly investigating.

The Superior Court Complaints

Adler Action (A085488, A085502)

On April 24, 1997, Jeff Adler and over 100 coplaintiffs, represented jointly by the 3 law firms, filed an action for damages in Los Angeles County Superior Court alleging 9 causes of action ² against Southern California Water Company (SCWC) and 100 Doe defendants.   The complaint alleged that SCWC had provided contaminated well water to plaintiffs, long time residents of San Gabriel Valley (Arcadia, Monrovia, Temple City, El Monte), over a period of many years.   Plaintiffs identified tricholoroethylene (TCE), perchloroethene (PCE) and carbon tetrachloride (CTC) and claimed other unidentified solvents had contaminated the water, soil and air.

The complaint noted that, as a result of testing performed in 1979 and 1980, the area was identified as a federal environmental superfund site.   The complaint blamed SCWC for delivering contaminated water to plaintiffs without warning them, and it alleged great physical, mental and nervous pain and suffering, including fear of cancer, as well as medical expenses for treatment and care.   It also charged that the contaminated water damaged their real and personal property.   A subgroup of plaintiffs presented a cause of action for wrongful death based upon the deaths of some 20 residents.   Referring, apparently, to the industrial defendants, the complaint alleged that the defendants improperly disposed of toxic substances in the ground, knowing that harm would take place.

Celi Action (A085486, A085501) and Boswell Action (A085482, A085495)

On February 2, 1998, the same attorneys filed an action in Los Angeles County Superior Court on behalf of Lorretta Celi and some 20 other plaintiffs against San Gabriel Valley Water Company (SGVWC) and 100 Doe defendants.   On February 4, 1998, these attorneys filed in the same court an almost identical action on behalf of Christine Boswell and 13 other plaintiffs against Suburban Water Systems (SWS), Southwest Water Company (SWWC) and 100 Doe defendants.   Although the parties and locations were different from those in Adler, the Celi and Boswell complainants alleged that their areas of the San Gabriel Valley were also part of the superfund site.   The complaints added allegations that in 1984 the Celi and Boswell areas of the San Gabriel Valley (Baldwin Park, City of Industry, El Monte, Hacienda Heights, La Puente, Rosemead, South El Monte, La Puente, West Covina, Covina and Glendora) were placed on the Environmental Protection Agency's (EPA) National Priorities List.

The Celi and Boswell complaints raised the same causes of action as Adler and alleged the same kinds of conduct and damages as the Adler complaint, including the three additional causes of action added by Adler's October 17, 1997, first amended complaint.³  These complaints added perchlorates, including ammonium perchlorate, to the list of toxic chemicals to which plaintiffs were exposed.

Santamaria Action (A085477, A085496)

Several months after the Adler complaint, Kristin Santamaria and some 300 coplaintiffs, represented by a different law firm, filed an action in Los Angeles County Superior Court against many of the same defendants, covering most of the same water service areas as well as Asuza, Irwindale and San Gabriel.   With the filing of the second amended complaint, Santamaria asserted 22 causes of action and named nearly 30 defendants, including regulated utilities, nonregulated water providers, and industrial defendants alleged to have discharged toxic substances into the air, soil and/or groundwater.   The Santamaria complaint alleged with greater specificity the same kind of conduct and damages alleged in the Adler, Celi and Boswell actions and the same harmful substances in the drinking water.   In addition to the causes of action in the Adler, Celi and Boswell complaints, Santamaria alleged conspiracy among defendants, battery and nine causes of action for unfair business practices.   Whereas the Adler, Celi and Boswell complaints prayed only for damages, attorneys' fees and costs, the Santamaria plaintiffs also prayed (1) for injunctive relief against disposing of toxic materials, supplying contaminated water, and engaging in unlawful business practices, (2) for medical monitoring, (3) for a constructive trust against defendants' property to pay for plaintiffs' injuries and (4) for an order compelling defendants to disgorge profits and restore all money acquired through unlawful business practices.

On April 17, 1998, on motion of several defendants, the Santamaria court changed venue to Ventura County.

The PUC Proceedings

On March 12, 1998, acknowledging the complaints by “numerous plaintiffs” against SCWC, SGVWC, SWS, Citizens Water Company and its parent company, Citizens Utilities Company, the California Public Utilities Commission filed an order instituting investigation (OII) to inquire into well water quality in the San Gabriel Valley and elsewhere in the state.⁴  The OII specifically described its task as “investigating the operations and practices of the named defendant public utilities and all other Class A and B public utility water companies,⁵ their compliance with this Commission's standards and policies regarding water quality, and whether those standards and policies regarding water quality continue to be adequate to protect the public health and safety with respect to substances such as VOCs [volatile organic compounds] and Perchlorate.   We are limiting this investigation to our Class A and Class B utilities because they have the financial ability to respond to this investigation and because they serve over 90% of all public utility water customers in this state.”

The PUC proposed to complete its investigation and make its final determination by May 16, 1999.   As of that date, its proceedings were ongoing.

Response to the PUC OII

Plaintiffs responded to the OII by successful petitions to intervene in the investigation and by motions challenging the PUC's jurisdiction to conduct its investigation.

Defendants responded to the PUC action by seeking by demurrers, motions for judgment on the pleadings, and motions for summary judgment or, alternatively, requests for stays, to halt the trial court proceedings because of the PUC's jurisdiction over the water quality issues and its pending investigation.   Various defendants also successfully petitioned to intervene in the PUC proceedings.

The Trial Court Rulings

The trial court responded in two different ways.   Two judges of the Los Angeles County Superior Court, one hearing the Boswell objections and the other the Adler and Celi challenges, deferred ruling on the demurrers, motions for judgment on the pleadings and motions for summary judgment and stayed the proceedings pending the PUC's completion of its OII. The Ventura County Superior Court, hearing only the Santamaria action, disagreed with the Los Angeles approach.   The court sustained without leave to amend the demurrers by the regulated utilities, but it overruled the demurrers and denied the stay requests by both the water providers not regulated by the PUC and the industrial defendants alleged to have polluted the soil and groundwater.   Although the court initially denied the remaining defendants' stay requests, it later accepted a stipulation that its proceedings be stayed pending resolution of the petitions to the appellate court.

The Adler, Boswell and Celi plaintiffs petitioned the Court of Appeal for the Second Appellate District, challenging the stay orders.   The successful regulated utility defendants petitioned also, claiming the courts should not merely have stayed the actions but should have dismissed them.   In the Santamaria action, the two categories of defendants whose demurrers were overruled petitioned for writ relief.   The Second District first granted three orders to show cause, then recused itself and transferred all eight matters to this court.   After the transfer, we consolidated the writ proceedings and issued orders to show cause on the five other petitions, and thereafter consolidated the appeal of the Santamaria plaintiffs from the trial court's order dismissing the plaintiffs' action as to the regulated utilities.   We decide all eight petitions and the Santamaria appeal in this opinion.

Principles of PUC Preemption

Section 1759 of the Public Utilities Code ⁶ declares that no court of this state except the Supreme Court and the Court of Appeal shall have jurisdiction to review any order or decision of the commission “or to enjoin, restrain, or interfere with the commission in the performance of its official duties.” ⁷  In Covalt, supra, 13 Cal.4th at pages 903, 915-934, 55 Cal.Rptr.2d 724, 920 P.2d 669, the Supreme Court determined that section 1759 barred a trial court action by neighboring property owners alleging lost value due to public fear of health-endangering EMFs created by powerlines owned and operated by a public utility.

After demystifying EMFs and explaining the case's procedural history, Covalt described the PUC's broad constitutional and statutory mandates to “ ‘supervise and regulate every public utility in the State’ ” and to do “all things ” necessary and convenient in the exercise of its jurisdiction, a grant of authority which is to be liberally construed.  (Covalt, supra, 13 Cal.4th at pp. 914-915, 55 Cal.Rptr.2d 724, 920 P.2d 669.)

The court then examined section 1759's relationship to section 2106.   Section 2106 provides that a public utility which violates the law or a commission order, whether by act or omission, shall be liable for “loss, damages, or injury caused thereby.”   It permits a court to award actual and exemplary damages in an action brought by the injured person or corporation.⁸  Covalt reaffirmed the narrow construction of section 2106 rendered by Waters v. Pacific Telephone Co. (1974) 12 Cal.3d 1, 114 Cal.Rptr. 753, 523 P.2d 1161, which limited section 2106 to “situations in which an award of damages would not hinder or frustrate the commission's declared supervisory and regulatory policies.”  (Id. at p. 4, 114 Cal.Rptr. 753, 523 P.2d 1161.) As explained by Covalt, “[u]nder the Waters rule, accordingly, an action for damages against a public utility pursuant to section 2106 is barred by section 1759 not only when an award of damages would directly contravene a specific order or decision of the commission, i.e., when it would ‘reverse, correct, or annul’ that order or decision, but also when an award of damages would simply have the effect of undermining a general supervisory or regulatory policy of the commission, i.e., when it would ‘hinder’ or ‘frustrate’ or ‘interfere with’ or ‘obstruct’ that policy.”  (Covalt, supra, 13 Cal.4th at p. 918, 55 Cal.Rptr.2d 724, 920 P.2d 669.)

Applying the Waters rule, Covalt examined (1) whether the commission had the authority to adopt a policy on whether EMFs arising from powerlines of regulated utilities were a public health risk and authority to direct utilities to take action to minimize the risk and (2) whether the commission had exercised its authority to adopt a policy on powerline EMFs. Covalt concluded that the commission had such authority and had exercised it.   (Covalt, supra, 13 Cal.4th at pp. 923-934, 55 Cal.Rptr.2d 724, 920 P.2d 669.)  Covalt expressed “no doubt that the commission is still actively pursuing the broad policy inquiry into the potential health effects of powerline electric and magnetic fields that it initiated in 1991.”  (Id. at p. 934, 55 Cal.Rptr.2d 724, 920 P.2d 669.)   The court concluded that the property owners' trial court claims not otherwise foreclosed under substantive law would interfere with the commission's activities.  (Id. at pp. 935-951, 55 Cal.Rptr.2d 724, 920 P.2d 669.)

A finding in the trial court that plaintiffs reasonably feared EMFs and that the harm to plaintiffs outweighed the social utility of the electric company's conduct would “be inconsistent with the commission's conclusion, reached after consulting with DHS, studying the reports of advisory groups and experts, and holding evidentiary hearings, that the available evidence does not support a reasonable belief that 60 Hz electric and magnetic fields present a substantial risk of physical harm, and that unless and until the evidence supports such a belief regulated utilities need take no action to reduce field levels from existing powerlines.”  (Covalt, supra, 13 Cal.4th at p. 939, 55 Cal.Rptr.2d 724, 920 P.2d 669, italics in original.)  “After reviewing the current scientific evidence the commission has determined that it is not sufficient at this time to establish that electric and magnetic fields are dangerous, and on that basis has adopted a detailed interim policy on the subject․  A superior court determination that essentially the same evidence is sufficient to answer the question and that such fields are in fact dangerous would plainly undermine and interfere with that policy.”  (Id. at p. 947, 55 Cal.Rptr.2d 724, 920 P.2d 669, italics in original.)

In Ford v. Pacific Gas & Electric Co. (1997) 60 Cal.App.4th 696, 70 Cal.Rptr.2d 359 (Ford ), Division Three of this court applied Covalt's analysis to bar an action for wrongful death blamed on EMF exposure.   Ford rejected plaintiff's attempt to distinguish Covalt on the grounds that decedent's exposure to EMFs occurred before adoption of the EMF policy:  “A finding by the trier of fact, however, that PG & E should have known 10 to 20 years ago that EMF's [sic ] were dangerous would necessarily undermine or interfere with the PUC's subsequent determination otherwise, as ultimately expressed in its 1993 decision and order.”  (Id. at pp. 703-704, 70 Cal.Rptr.2d 359.)

After reviewing drinking water regulation generally and the relationship between state and federal law, we will focus first upon preemption of actions against the regulated utility defendants.   Employing the three-step analysis of Covalt, we will consider in sequence the following questions:  (1) Does the PUC have authority to adopt water quality standards for regulated utilities?  (2) If so, has the PUC exercised its authority to adopt such standards?  (3) If it has, would these private lawsuits interfere with the PUC's regulation of water quality.

Drinking Water Regulation

California's history could scarcely be described without discussing the development of its water supply.   As California has grown in population and its population centers shifted to areas lacking an abundant natural water supply, so have California's water issues evolved.   In the 19th century, water law and policy centered around the conflict between mining and agriculture.   Little attention was paid to the problem of urban water supply.  (Kahrl, The California Water Atlas (1978) p. 28) Over the next 100 years, California “remade the natural waterscape through the construction of a great network of artificial lakes and rivers,” permitting it to become “the most populous and agriculturally productive state in the nation.”  (Id. at p. 58.)   With this growth came protracted litigation over water quantity, primarily actions to determine groundwater rights in Southern California (some involving the San Gabriel Basin).  (Id. at pp. 67-69.)   However, only in the last five decades have Californians come to see water quality as “just as important a constraint upon use as water quantity.”  (Id. at p. 93.)

The early part of the 20th century witnessed isolated lawsuits involving personal injury due to contaminated water (see, e.g., Ritterbusch v. City of Pittsburg (1928) 205 Cal. 84, 269 P. 930; ⁹  Wardrop v. City of Manhattan Beach (1958) 160 Cal.App.2d 779, 326 P.2d 15 ¹⁰ ), but there was little state involvement in water quality protection.   Although “ Congress created the Public Health Service in 1901 to protect the public from waterborne diseases” and in 1912 extended its authority to include pollution in navigable streams, enforcement was left to the individual states until 1948.   In 1915, California created its Bureau of Sanitary Engineering and required all suppliers of domestic drinking water to obtain permits.   However, the Legislature gave this agency no enforcement power.  “Although the State Department of Fish and Game did establish a regulatory program to prohibit discharges that might be harmful to fish, the principal responsibility for the protection of water quality was left in large part to local initiative.

“․

“As California's urban population swelled in the 1940s, a series of incidents dramatically demonstrated the consequences of this haphazard approach to water quality control.   Shellfishing in San Francisco Bay was quarantined because of contamination of the fishery by municipal and industrial sewage.   Fourteen miles of the beach near El Segundo were also closed as a result of grease building up along the shore.   And in Montebello, the illegal dumping of industrial chemicals polluted the wells of three water companies and contaminated the principal groundwater recharge area for the region of Los Angeles.”  (Kahrl, The California Water Atlas, op. cit. supra, p. 98.)

The Legislature responded in 1949 by creating nine regional water quality control boards with the authority to establish and enforce water quality standards within entire watersheds under the direction of a central state board.¹¹  (Kahrl, The California Water Atlas, op. cit. supra, p. 98.)   In 1969, the Legislature adopted the Porter-Cologne Water Quality Control Act (Porter-Cologne Act) (Stats.1969, ch. 482, pp. 1045-1088;  Water Code, § 13000 et seq.), described as the “ ‘toughest water quality act in the nation,’ ” substantially revising the 1949 measure.  (Robie, Water Pollution:  An Affirmative Response by the California Legislature (1970) 1 Pacific L.J. 2.)

The Porter-Cologne Act is the basic water quality control law for California.   Its enactment established a “broad-based regulatory program designed to protect water quality and to protect beneficial uses of the state's waters.   The Act is implemented by the State Water Resources Control Board (State Board) and the nine regional water quality control boards.”  (Attwater & Markle, Overview of California Water Rights and Water Quality Law (1988) 19 Pacific L.J. 957, 996-997.)   The act, which focuses primarily upon discharges into water sources, has been supplemented by other measures more directly targeted to the water delivered to consumers, including both the Safe Drinking Water Act (SDWA), passed in 1976 (Stats.1976, ch. 1087, § 2.5, pp. 4918-4928;  Health & Saf.Code, § 116275 et seq., formerly Health & Saf.Code, § 4010 et seq.) and a 1986 voters-approved initiative entitled “The Safe Drinking Water and Toxic Enforcement Act of 1986” (Proposition 65), designed to regulate the discharge or release of cancer causing chemicals and reproductive toxins into drinking water.  (Health & Saf.Code, §§ 25249.5-25249.13;  People ex rel. lungrEn v. supeRIor court (1996) 14 cal.4th 294, 298, 58 cal.rPtr.2d 855, 926 P.2d 1042.)

Paredes v. County of Fresno (1988) 203 Cal.App.3d 1, 249 Cal.Rptr. 593 (Paredes ) described in some detail the California SDWA, in addressing the regulation of water contaminated with DBCP,¹² a toxic substance not specifically in issue in our case.  “The California Legislature has declared water delivered by public water systems in this state should be at all times pure, wholesome, and potable.   It has adopted procedures to be followed in an effort to accomplish this objective in [Health and Safety Code] sections 4010.1 through 4039.5. (§ 4010.)   These sections (which have since been amended and moved to §§ 116275 through 117130 [Stats.1995, ch. 415, § 6, No. 7 West's Calif.   Legis.  Service, pp. 2352-2384] ) describe the permit process for the operation of a public water system (art. 1, §§ 4011-4022), the regulation of the quality of the water supply of a public water system (art. 2, §§ 4023.5-4030.7), violations (art. 3, § 4031), remedies (art. 4, §§ 4032-4036.5), judicial review (art. 4.5, § 4037) and applicable crimes and penalties (art. 5, §§ 4037.5-4039.5).

“Any person who operates a public water system must:  comply with primary and secondary drinking water standards;  ensure the system will not be subject to backflow under normal operating conditions;  and provide a reliable and adequate supply of pure, wholesome, healthful, and potable water. (§ 4017.)   Primary drinking water standards specify maximum levels of contaminants, which, in the judgment of the DHS director, may have an adverse effect on the health of persons. (§ 4010.1, subd. (b)(1).)   Secondary drinking water standards specify maximum contaminant levels which, in the judgment of the director, are necessary to protect public welfare.   Secondary drinking water standards may apply to any drinking water contaminant which may:  (1) adversely affect the odor or appearance of such water and cause a substantial number of persons served by the public water system to discontinue its use;  or (2) otherwise adversely affect the public welfare. (§ 4010.1, subd. (b) (2).)   Maximum contaminant level means the maximum permissible level of a contaminant in water. (§ 4010.1, subd. (c).)

“The regulations establishing primary and secondary drinking water standards for public water systems are contained in title 22 of California Code of Regulations, section 64401 et seq.  (Cal.Code Regs., tit. 22, § 64401, subd. (a).)  Those drinking water standards are based upon the national interim primary and secondary drinking water regulations contained in the Code of Federal Regulations.”  (Paredes, supra, 203 Cal.App.3d at p. 5, 249 Cal.Rptr. 593.)

In California, when a contaminant is discovered for which there is no primary or secondary standard, the DHS develops an “action level” for it.   In the early 1980's, the Legislature adopted a program for detecting and monitoring organic chemical contaminants for which mandatory levels did not exist.   Legislation authorized the DHS to require monitoring for these unregulated chemicals and notification of the public when action levels were exceeded.   DHS implemented the legislation by adopting guidelines for responding when action levels were exceeded.  (Paredes, supra, 203 Cal.App.3d at pp. 6-7, 249 Cal.Rptr. 593.)

Although the Legislature moved the Safe Drinking Water Act to Health and Safety Code sections 116275 et seq. during a statutory reorganization in 1995 (Stats.1995, ch. 415, § 6, No. 7 West's Cal. Legis.   Service, p. 2352 et seq.) and amended it in subsequent years (Stats.1996, ch. 755, §§ 1-12, No. 10 West's Cal. Legis.   Service, pp. 3312-3318;  Stats.1997, ch. 734, §§ 1-15, No. 11 West's Cal. Legis.   Service, pp. 3972-3983), the general regulatory scheme described in Paredes has remained intact.   However, in the intervening years, the list of substances with maximum contaminant levels rose from Paredes ' total of 17 to a current total of 100, consisting of 83 primary MCLs and 17 secondary MCLs. The list of primary standards now includes MCLs for 17 inorganic chemicals, a combined M.C.L. § for 4 thrihalomethanes, and MCLs for 6 radioactive substances and 59 organic chemicals, consisting of 26 volatile organic chemicals (VOCs) and 33 nonvolatile synthetic organic compounds.  (Code Cal. Regs., tit. 22, §§ 64431-64444.)   The specific substances identified by the Adler, Boswell, Celi and Santamaria plaintiffs include three VOCs on the primary M.C.L. § list (CTC, PCE & TCE) and another which is not yet on the M.C.L. § list but is on the DHS Action Levels list (perchlorate or ammonium perchlorate).

Federal Drinking Water Regulation

Our discussion of drinking water quality regulation in California must not overlook the relationship between state and federal law.  “The Federal Clean Water Act was enacted in 1972 ‘to restore and maintain chemical, physical and biological integrity of the Nation's waters.’  ” ¹³ Congress hoped to eliminate the discharge of all pollutants into navigable waters through a system of permit requirements administered through the Environmental Protection Agency or an approved state program.  (Hudson River Fishermen's Ass'n v. City of New York (S.D.N.Y.1990) 751 F.Supp. 1088, 1099-1100 (Hudson River).)

Two years later, “Congress responded to accumulating evidence that our drinking water contains unsafe levels of a large variety of contaminants” by adopting the federal SDWA (Pub.L. No. 93-523, 88 Stat. 1660) (codified at 42 U.S.C. § 300f et seq.).  (Environmental Defense Fund, Inc. v. Costle (D.C.Cir.1978) 578 F.2d 337, 339 (Costle).)  “The objective of the Clean Water Act is to preserve the environmental integrity of navigable waters, while the objective of the Safe Drinking Water Act is to prescribe minimum national standards concerning the purity of drinking water for the protection of the public health․  [T]he two objectives are complementary.”  (Hudson River, supra, 751 F.Supp. at p. 1100.)

 Under the federal SDWA, the EPA sets maximum contaminant levels (MCLs) for various substances.   With its enactment of the federal SDWA, “Congress occupied the field of public drinking water regulation” and preempted federal common law nuisance claims.   However, the primary responsibility for enforcing the federal SDWA remains with the states, leaving the Administrator of the EPA the task of enforcing state compliance with its enforcement responsibilities.  (Mattoon v. City of Pittsfield (1st Cir.1992) 980 F.2d 1, 4 (Mattoon )).   The federal SDWA provides only limited private enforcement, permitting private citizens to seek penalties and injunctions if, after notice, the EPA Administrator does not act to prevent an ongoing violation of the statute.  (Vernon Village, Inc. v. Gottier (D.Conn.1990) 755 F.Supp. 1142, 1147, citing Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc. (1987) 484 U.S. 49, 59, 108 S.Ct. 376, 98 L.Ed.2d 306, interpreting identical language in the Clean Water Act.)

 Preemption of federal common law extends to substances not on the EPA's M.C.L. § list:  “Provided the EPA has the statutory authority to regulate contaminants in the public drinking water supply, it is within the province of the agency, not the courts, to determine which contaminants will be regulated.   The comprehensiveness of the legislative grant is not diminished, nor is the congressional intent to occupy the field rendered unclear, merely by reason of the regulatory agency's discretionary decision to exercise less than the total spectrum of regulatory power with which it was invested.”   (Mattoon, supra, 980 F.2d at p. 5.)

 State common law is not preempted, however (United States v. Hooker Chemical & Plastics Corp. (D.C.N.Y.1985) 607 F.Supp. 1052, 1055, fn. 3;  cf.   International Paper Co. v. Ouellette (1987) 479 U.S. 481, 492-499, 107 S.Ct. 805, 93 L.Ed.2d 883), and states are allowed to set stricter water quality standards than the federal government.   California's SDWA, adopted in 1976 and administered by the DHS, was designed to establish standards at least as stringent as the federal SDWA and to be “more protective of public health” than the minimum federal requirements.  (Health & Saf.Code, § 116270, subd. (f), formerly § 116300, subd. (f), formerly § 4010, subd. (f).)  Because California's drinking water standards are at least as stringent as the federal standards and because remedies under state common law are not preempted by the federal statutes, our focus upon California law rather than federal law is appropriate.

Does the PUC Have Authority to Regulate Drinking Water Quality?

 Under article X, section 5 of the California Constitution, “The use of all water now appropriated, or that may hereafter be appropriated, for sale, rental, or distribution, is hereby declared to be a public use, and subject to the regulation and control of the State, in the manner to be prescribed by law.”   Under article XII, section 3, private corporations that control systems for transporting or furnishing water to the public are “public utilities subject to control by the Legislature.”

Since its early days as the Railroad Commission, the PUC has regulated public utility water companies (Stats.1911, Ex.Sess., ch. 14, § 2, p. 18;  see In re Application Southern California Mountain W. Co. (1912) 1 Cal.P.U.C. 841.)   The commission's first mandate included ensuring that every public utility would “provide and maintain such service, instrumentalities, equipment and facilities as shall promote the safety, health, comfort and convenience of its patrons, employees and the public.”  (Stats.1911, Ex.Sess., ch. 14, § 13(b), p. 25.)   This edict is nearly intact in the current code:  “Every public utility shall furnish and maintain such adequate, efficient, just, and reasonable service, instrumentalities, equipment, and facilities ․ as are necessary to promote the safety, health, comfort, and convenience of its patrons, employees, and the public.” (§ 451.)   The commission has broad power to require public utilities to comply with this edict. (§§ 701-702, 761, 770.)   Drinking water quality affects health and safety and is therefore within the purview of the PUC's regulation of public utility water companies.   (See Citizens Utilities Co. v. Superior Court (1976) 56 Cal.App.3d 399, 408, 128 Cal.Rptr. 582.)   The Legislature has recently confirmed that “[a]ccess to an adequate supply of healthful water is a basic necessity of human life, and shall be made available to all residents of California at an affordable cost.” (§ 739.8, subd. (a).)

Has the PUC Regulated Drinking Water Quality?

 In 1956, by General Order 103, the PUC adopted standards governing water service.   As amended during the intervening years, the general order provides that “[a]ny utility serving water for human consumption or for domestic uses shall provide water that is wholesome, potable, in no way harmful or dangerous to health and, insofar as practicable, free from objectionable odors, taste, color and turbidity.”   It requires each utility supplying water for human consumption to hold a permit and to comply with the laws and regulations of the state or local DHS. It further provides that none of the PUC rules is intended to supersede or conflict with any applicable regulation of the State DHS. Compliance by the utility with regulations of the DHS “shall constitute a compliance with such of these rules as relate to the same subject matter except as otherwise ordered by the Commission.”

In 1974, the same year that Congress passed the federal SDWA, the California Legislature amended section 770, subdivision (b), the commission's authority for setting standards for the products and services of electric, gas, water, and heat corporations, to acknowledge the DHS's primacy in water quality standards (Stats.1974, ch. 229, § 1, p. 434).   As amended again in 1976, the subdivision now provides:  “No standard of the commission applicable to any water corporation shall be inconsistent with the regulations and standards of the State Department of Health [now the DHS]․”  (Stats.1976, ch. 1087, § 4, p. 4929.)

The PUC confirmed its partnership with DHS on water quality issues in 1987 by issuing a joint memorandum of understanding (MOU), updated in 1996, agreeing to “their joint goal and responsibility to ensure that California water companies regulated by the PUC are economically maintaining safe and reliable water supplies.”   The MOU defined DHS's responsibility for identifying contaminants and improvements necessary to provide safe water supplies and for initiating enforcement actions under the SDWA. Under the MOU, the PUC retained responsibility for approving rate changes to finance improvements, for informing customers, and for monitoring non-SDWA quality requirements.   The two agencies agreed to work together and exchange appropriate information.

Since the adoption of General Order 103 some 40 years ago, the PUC has taken various other actions with respect to the quality of drinking water provided by public utilities.   In 1983, it adopted a Service Improvement Policy, requiring water utilities to identify the most cost-effective alternatives for dealing with water service problems, including contamination.   In 1986, it issued Guidelines for Water Quality Improvement projects.   In 1990, it issued a Risk and Return Report, addressing the development of drinking water quality standards, new testing procedures, and application of drinking water standards to large and small water utilities.   In 1994, it issued a decision concluding that drinking water quality standards would require investment of $50-200 million in water treatment facilities over the next several years.   In 1996, it authorized water utilities to establish accounts to record and recover expenses incurred in complying with EPA drinking water regulations and paying DHS testing and regulatory fees.   In addition, the commission issued a series of individual rate decisions analyzing health standards and individual communities' abilities to absorb the costs of varying treatment levels.

 All plaintiffs contend that the PUC has not regulated water quality but has merely deferred to the DHS on drinking water quality issues, as it is statutorily required to do.   However, a PUC partnership with DHS does not diminish the preemptive effect of PUC jurisdiction over regulated public utilities.   While the standards may be the product of DHS study and expertise in health issues, they are the PUC's standards as well.   The PUC's constitutional and statutory powers to ensure public safety “do not bar it from enlisting the assistance of other state agencies (or private contractors) in carrying out its responsibilities.   And when the issue is a potential cancer [or other health] risk, DHS is a logical partner.”  (Covalt, supra, 13 Cal.4th at pp. 946-947, 55 Cal.Rptr.2d 724, 920 P.2d 669, fn. omitted.)

Orange County Air Pollution Control Dist. v. Public Util. Com. (1971) 4 Cal.3d 945, 95 Cal.Rptr. 17, 484 P.2d 1361 (OCAPCD) is instructive here.   The court in OCAPCD discussed the principle of concurrent jurisdiction shared by the PUC and another agency, in that case a statutorily created pollution control district.  (Id. at p. 949, 95 Cal.Rptr. 17, 484 P.2d 1361.)   In the proceedings under review in OCAPCD, Southern California Edison Company proposed to build two new fossil fuel electricity generating units at its Huntington Beach generating station, but was denied a permit by the air pollution control district.   Nevertheless, asserting paramount jurisdiction, the PUC granted the company's application to build, a decision the air pollution control district challenged by writ petition.   After examining the pertinent Health and Safety Code provisions, OCAPCD concluded that the two agencies had concurrent jurisdiction and that the public utility was required to satisfy the orders of each agency empowered to regulate it.   (Id. at pp. 950-954, 95 Cal.Rptr. 17, 484 P.2d 1361.)   Similarly, in the area of water quality, the PUC has concurrent jurisdiction and has made the DHS its partner in establishing, monitoring and enforcing drinking water standards, to the benefit of the public interest.

Although we limit our review to the records before the superior courts when they ruled, we note that the augmented record of proceedings on the OII shows that the PUC has exercised and continues to exercise its jurisdiction to assess and respond to the very issues raised by the subject pleadings and continues to work with DHS. The regulated utilities would use the PUC's June 10, 1999, decision on jurisdiction to establish PUC exclusivity, subject to review by the California Supreme Court only, while the Santamaria plaintiffs would use the same ruling to support their claim that the PUC has deferred water quality regulation to the DHS. We need not analyze the regulated utilities' argument because the PUC has reached the same conclusion as we on jurisdiction.   We reject the Santamaria plaintiffs' argument because it ignores our conclusion, stated above, that the PUC has entered into an appropriate partnership with the DHS to carry out the PUC's mandate to control the quality of water delivered by regulated utilities.

Would Plaintiffs' Actions Interfere with PUC Regulatory Functions?

 An action for damages against a public utility is barred “when an award of damages would directly contravene a specific order or decision of the commission, i.e., when it would ‘reverse, correct, or annul’ that order or decision, but also when an award of damages would simply have the effect of undermining a general supervisory or regulatory policy of the commission, i.e., when it would ‘hinder’ or ‘frustrate’ or ‘interfere with’ or ‘obstruct’ that policy.”  (Covalt, supra, 13 Cal.4th at p. 918, 55 Cal.Rptr.2d 724, 920 P.2d 669.)  Covalt noted that other courts have expressed the same idea:  “ ‘The PUC has exclusive jurisdiction over the regulation and control of utilities, and once it has assumed jurisdiction, it cannot be hampered, interfered with, or second-guessed by a concurrent superior court action addressing the same issue.’  [Citation, italics added.]   Still other synonyms could be invoked, e.g., impair, impede, inhibit, or encumber.   The point is clear.”  (Id. at p. 918, fn. 20, 55 Cal.Rptr.2d 724, 920 P.2d 669.)

 When the PUC has already acted in an area under its jurisdiction and has imposed requirements upon public utilities, a civil trial court may not second-guess those requirements.   However, under limited circumstances such a court has jurisdiction to enforce the utility's legal obligation to comply with PUC standards and policies and to award damages for the utility's violation of PUC requirements.   For example, in Vila v. Tahoe Southside Water Utility (1965) 233 Cal.App.2d 469, 43 Cal.Rptr. 654, an office building owner was permitted to seek a mandatory injunction and damages for a water utility's failure to provide a single service connection for a multiple-tenant building.   Vila's action sought an injunction to enforce a “tariff” or regulation approved by the PUC. Vila concluded that the court's jurisdiction was in aid of, not in derogation of, the jurisdiction of the commission:  “To require him to have to bring preliminary proceedings before the commission merely to obtain the inevitable finding of fact obvious on the face of the utility's schedule (and effectually a repetition of a fact already found) would only produce a useless delay in the administration of justice.   We attribute to the Legislature an intent in enacting section 2106 to provide the prospective user wrongfully deprived of water service to which he is entitled with a speedy and adequate remedy in the superior court.”  (Vila v. Tahoe Southside Water Utility, supra, 233 Cal.App.2d at pp. 479-480, 43 Cal.Rptr. 654.) ¹⁴

Waters, the converse of Vila, involved a real estate broker seeking compensatory damages for negligent phone service.   Plaintiff's action was in derogation of the PUC-approved tariff limiting the aggrieved telephone customer to a credit allowance.   The Waters court had little trouble finding PUC preemption.  (Waters, supra, 12 Cal.3d at pp. 10-12, 114 Cal.Rptr. 753, 523 P.2d 1161.) ¹⁵

 The cases under scrutiny here do not have the simplicity of Vila, where plaintiff sought directly to enforce a PUC-approved mandate or Waters, where plaintiff sought blatantly to contradict a PUC-approved rule.   Plaintiffs here apparently seek in part to enforce and in part to supplant PUC/DHS standards, as they seek to prove injury caused by water delivered to the San Gabriel Valley customers over a long period of time.   Their actions naturally provoke such questions as (1) whether the PUC or DHS should have started regulating particular substances earlier, (2) whether, once MCLs were adopted for these substances, the levels were appropriate, (3) whether the public utilities have complied with MCLs, (4) whether temporary or intermittent noncompliance would support a cause of action for damages if the substances were found to be harmful at levels above the MCLs, (5) whether good-faith compliance or near compliance with MCLs is a valid defense if the MCLs are found to have been set too low.

Plaintiffs have not alleged that their injuries are due solely to violation of unambiguous regulations, as the Vila plaintiff sought to prove.   In the Adler, Boswell and Celi complaints, the plaintiffs are grouped together, contamination is said to have taken place over many years, only a small percentage of wells are alleged to have exceeded MCLs, and the complaints articulate no distinction between contamination within regulatory limits and injury from violation of standards.¹⁶  While Santamaria bears some superficial resemblance to Vila, in that it alleges contamination above state and federal limits during all pertinent times, it does not seek simply to enforce PUC/DHS standards.   It alleges that its causes of action arise from release of hazardous contaminants “including, but not limited to” three on the MCL. It goes beyond enforcing unambiguous standards and opens the door to the imposition of varied and unpredictable water quality standards based on potentially inconsistent jury verdicts which “second-guess” PUC regulation of the quality of water provided by public utilities.

These cases differ from Vila in another significant respect.   Requiring the plaintiffs here to take their water quality complaints before the PUC instead of taking them to court would not lead to “useless delay in the administration of justice.”   Instead, it would place before the appropriate regulatory agency important and difficult factual questions about the regulated industry's compliance with water quality standards and policy questions about remedies for noncompliance.

Plaintiffs contend that no PUC policy would be contravened by their actions because the PUC has no policy regarding compensating persons injured by drinking water.   They also argue that, to the extent plaintiffs attribute their injuries to contamination 30 or 40 years ago, their actions do not conflict with the PUC because neither the PUC nor DHS regulated these chemicals at that time.

Plaintiffs read section 1759 too narrowly and section 2106 too broadly.   These actions, which expansively seek to prove injury from water delivered by providers regulated by the PUC, “interfere with a broad and continuing supervisory or regulatory program of the commission” (Covalt, supra, 13 Cal.4th at p. 919, 55 Cal.Rptr.2d 724, 920 P.2d 669), calling into question the MCLs, the timing of imposing the levels and the commission's effectiveness in enforcing maximum contaminant levels.   The fact that the PUC has no policy on compensating injured consumers does not contradict its central role in enforcing health standards for public utilities.   At most, it shows that the PUC's primary focus is on evaluating current conditions and avoiding future problems.¹⁷  In Ford, the court rejected a contention that the PUC's inability to award tort damages makes trial court proceedings appropriate. Ford explained that plaintiff was not without a remedy;  she could file a complaint with the PUC. The court upheld the Legislature's authority to so limit a plaintiff's options.  (Ford, supra, 60 Cal.App.4th at p. 707, 70 Cal.Rptr.2d 359.) ¹⁸

The fact that during some part of the exposure period the PUC/DHS may not have decreed MCLs for some of the harmful chemicals does not relegate the PUC to the periphery of these legal proceedings.   Preemption here is based upon the PUC's comprehensive control over the actions of public utilities and its specific authority over water quality.   If, as plaintiffs apparently suggest, the PUC/DHS did not meet an obligation to regulate harmful substances, that lapse would not render the regulated utilities vulnerable to suit.   We conclude that, instead of aiding the PUC in its regulation of public utility water providers, these actions, if tried in superior court, would seriously hamper the PUC's regulation and control over the utilities.

We have granted the request of the California Water Association to file a brief amicus curiae in support of the regulated water providers.   Amicus argues, persuasively, that water quality regulation raises important public policy questions that should not be decided by individual juries throughout the state.   In its view, the Legislature has determined that the proper forum for the formulation of policies and standards for the efficient delivery of safe and reliable water service is the PUC rather than a patchwork of post hoc verdicts and judgments.

Although amicus overstates its argument by implying that the PUC has unique insight into policy issues, we agree that the Legislature has invested the PUC with jurisdiction over the quality of water provided by regulated utilities and has limited recourse to civil damage actions against those utilities because the PUC “is best able to secure and maintain a consistent and orderly regulated pattern” for the efficient and reliable delivery of safe water.  (Cf. Cal. etc. Transport Co. v. Railroad Com. (1947) 30 Cal.2d 184, 189, 180 P.2d 912.)

Role of the Watermaster Appointed by the Superior Court

 In 1972, in a water rights case brought by the Upper San Gabriel Valley Municipal Water District against the City of Alhambra et al.   (Super.Ct. No. 924128), the Los Angeles County Superior Court approved a stipulated judgment determining the pumping rights of 190 water producers and appointing the Main San Gabriel Basin Watermaster (Watermaster) to administer the judgment.   The Watermaster's powers under the superior court's 1989 amended judgment extend to water quality in the basin.¹⁹  Plaintiffs contend that the PUC's consent to the superior court's jurisdiction over those San Gabriel Valley proceedings and the Watermaster's later actions to improve water quality in the basin operate to invest the superior court with jurisdiction over these actions.

The foundation for plaintiffs' arguments is an opinion by the PUC, filed June 1, 1972, in which it approved a stipulation and agreement for judgment among various water companies in the San Gabriel Valley Basin.   The PUC authorized regulated utilities to enter into and carry out the terms of the stipulated judgment.   The stipulated judgment approved by the court described its subject matter as water rights and stated that the court had jurisdiction over the subject matter and the parties.   The bulk of the judgment described pumping rights for the various water providers and established a nine-person “Watermaster” to administer and enforce the judgment.   The court reserved jurisdiction to make such further orders as were necessary.   The judgment observed in passing that it was essential that the Watermaster have broad discretion in making basin management decisions.  “Both the quantity and quality of said water resource are thereby preserved․”

Plaintiffs' arguments are unpersuasive, based as they are on a stipulated judgment regarding rights to extract quantities of water from the San Gabriel Valley Basin, with authority conferred by stipulation on the Watermaster to establish procedures for pumping within the basin, thereby impacting water quality.   The PUC merely approved a stipulated judgment addressing water rights.   It did not yield to the superior court, in perpetuity, supervision over all aspects of the conduct of public utility water providers in the San Gabriel Valley.   The Watermaster's recognition that water quantity affects water quality and consequential steps to enhance water quality protections cannot convert the PUC's concession into a waiver of its paramount jurisdiction over the safety of drinking water provided by public utilities.   Moreover, the Watermaster's interest in the quality of groundwater is a step removed from regulating delivery of drinking water by public utility water providers.   The PUC did not cede to the Watermaster or superior court regulation of drinking water.

Preemption of Actions Against Defendants not Regulated by the PUC

 Having found that the actions against regulated utilities are preempted, we now address the preemption claims of the industrial defendants and the nonregulated water providers.   Both categories of defendants raise preemption to support their contention that the orders staying proceedings against them should be affirmed.   Some nonregulated water providers go so far as to urge that plaintiffs should not be allowed to proceed against them.   To do so, they claim, would intolerably undermine and threaten PUC regulatory and supervisory policies and the vitality of the PUC proceedings.

The industrial defendants contend that the PUC's preemption of court proceedings applies to any “issues” or subject matter before the commission, not just to actions against companies subject to PUC regulation.   They cite Barnett v. Delta Lines, Inc. (1982) 137 Cal.App.3d 674, 187 Cal.Rptr. 219 to support this expansive view of preemption.   Citing Covalt, they observe that the California Supreme Court has referred to preemption of “cases” and “actions” without confining its preemption language to actions against regulated parties.   The nonregulated water providers present practical objections to allowing plaintiffs to proceed against them in the trial court and not against the regulated utilities.

 Appellate decisions, even those by the California Supreme Court, are not authority for issues not before the reviewing courts.  (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2, 39 Cal.Rptr. 377, 393 P.2d 689;  Grange Debris Box & Wrecking Co. v. Superior Court (1993) 16 Cal.App.4th 1349, 1358, 20 Cal.Rptr.2d 515.)   In neither Barnett nor the cited Supreme Court cases (Covalt, supra, and Waters, supra ) was there any hint that, absent preemption, defendants not regulated by the PUC would be subject to trial court proceedings under review.   Therefore, when the courts referred to the preemptive effect of “issues” or “cases” pending before the PUC, they were barring only actions brought in the trial court against the regulated companies.   None of these courts announced these defendants' remarkable principle that the PUC's regulation of public utilities should somehow extend into the affairs of water providers and industrial defendants not otherwise subject to PUC regulation.

Understandably, the nonregulated defendants do not invite us to find that the PUC has de facto authority to regulate their conduct.   Some seem to be claiming only a tangential benefit from PUC regulation - a stay or the preemption of actions against them - unencumbered by the burdens of PUC regulation.   However inconvenient it may be for these defendants to respond to these trial court actions, we conclude that their nonregulated status imposes that consequence.

Section 1759 provides that no trial level court may “review, reverse, correct, or annul” or “enjoin, restrain, or interfere with” the PUC in its performance of its duties.   By no stretch of language or logic does this mean that trial courts may not decide issues between parties not subject to PUC regulation simply because the same or similar issues are pending before the PUC or because the PUC regulates the same subject matter in its supervision over public utilities.²⁰

Practical Objections to Superior Court Proceedings

Both categories of nonregulated defendants present practical objections to ongoing superior court proceedings during the PUC investigation into drinking water provided by the regulated utilities.   They intermingle these practical objections with assertions of PUC preemption.   However, conceptually these objections more appropriately invoke the courts' possible discretion to stay proceedings while the PUC investigates the same or similar issues.

The industrial defendants' practical argument focuses on liability.   They say that liability of the industrial defendants depends in substantial part on the quality of the drinking water furnished consumers and therefore cannot be assessed until issues about the conduct of the regulated defendants are resolved.   If this sequence is not followed, the results may be illogical and inconsistent because the industrial defendants could be held liable for damages from water the PUC subsequently declares to be safe.   These defendants claim there is no room in California law for different health standards for drinking water, some set by the PUC and others set by various juries.

The nonregulated water providers' practical arguments raise concerns about the public's water supply and emphasize the connection between regulated utilities and nonregulated water providers.   The nonregulated water providers assert that if the trial courts were to impose a more restrictive standard upon them and threaten them with large verdicts, they might be compelled to treat their water more aggressively and raise its price.   If they were to do this, the regulated utilities that rely upon them for additional supplies might be harmed.   By this tie-in to regulated utilities, the nonregulated water providers seek to bolster the argument that these trial court actions would interfere with PUC regulation.

Neither line of argument is persuasive on the preemption issue.   We acknowledge the defendants' operations are undeniably connected:  the industrial defendants allegedly polluted the groundwater, some of which migrated to the wells of nonregulated water providers (and those of regulated utilities), some of whom sold their water to regulated utilities.   Nevertheless, neither the physical connection between groundwater and well water nor the business connections between regulated and nonregulated defendants defines the scope of preemption.   Regulated utilities establish business connections with countless nonregulated entities, and their services often physically connect to those of nonregulated businesses.   No doubt these connections frequently cause the PUC or its regulated utilities to experience the impact of trial court proceedings.   On occasion the trial courts will reach different conclusions about similar issues and will “regulate” nonutility businesses differently from PUC's regulatory model.   These differences, connections and spillover effects do not compel or justify a preemption doctrine that extends PUC preemption to all connected entities and all related issues.   Nothing peculiar or special about the relationships between the regulated utilities and the other defendants calls for a special preemption doctrine for this case.

A Court's Discretion to Stay its Own Proceedings

One group of industrial defendants asserts that the trial courts have broad discretion to stay their own proceedings and that the Los Angeles courts properly exercised their discretion.   These defendants claim the courts appropriately deferred their actions pending the PUC investigation, which was likely to “resolve, or at least clarify and simplify, the drinking water safety issue that is at the heart of plaintiffs' lawsuits.”   They and other industrial defendants assert that plaintiffs will not be harmed by the stays, which will actually save time in the long run and benefit all the parties.   They cite Pacific Bell v. Superior Court (1986) 187 Cal.App.3d 137, 231 Cal.Rptr. 574 (Pacific Bell ) as authority for trial courts to stay their proceedings pending action by the PUC.

The regulated utilities, viewing the other side of the coin, contend that because of PUC preemption, the Los Angeles courts lacked jurisdiction to stay the proceedings against regulated utilities and were required instead to rule favorably on their demurrers, motions for judgment on the pleadings and motions for summary judgment and to dismiss the actions against them, as did the Ventura County Superior Court.   They say that, by issuing stays, the Los Angeles courts exercised jurisdiction over them, which they were preempted from doing.

Pacific Bell, supra, 187 Cal.App.3d at pages 140-141, 231 Cal.Rptr. 574, the only decision presented by the parties or found by this court addressing the question of staying court actions pending PUC proceedings, has never been cited for its main holding.   It involved trial court decisions overruling a demurrer and refusing a stay requested by a defendant claiming PUC jurisdiction over the subject matter.   Plaintiffs in the trial court action sought an accounting of their shares of proceeds from charges for 976 information services provided through their joint venture with the phone company.   One year before the civil action, the PUC began an investigation into 976 information services which, near the time of plaintiffs' lawsuit, expanded to include accounting complaints.   In a brief discussion of the issue, the Pacific Bell court concluded that the trial court abused its discretion when it denied the defendant's request to stay the action pending completion of the PUC investigation:  “In actions raising questions within the scope of a regulatory agency's purview, the courts should defer to the agency's expertise.  [Citations.]  Application of this doctrine in the underlying action will serve several salutary purposes.   First, when the regulatory proceeding is completed, the superior court will have the benefit of the agency's views on the issues.   Secondly, a stay until Commission proceedings are concluded will minimize the risk that the court's rulings will hinder or frustrate the agency's policies, orders, or decisions.  [Citations.]  Thirdly, a stay will conserve judicial and other resources, which would otherwise be consumed in litigation of some issues that will likely be resolved by administrative action.

“The Commission investigation will not necessarily encompass all issues of fact and law raised by real parties' complaint.   But it certainly involves a central issue, the adequacy of petitioner's 976 IAS [Information Access Service] call-counting practices.   And we are informed by real parties that the scope of the issues to be investigated is itself a question still under Commission review.

“It may be that subsequent developments in the administrative proceedings will make the stay unnecessary.  [Citation.]  But with the Commission investigation in its current stage, it was an abuse of discretion for respondent court to deny defendant's motion to stay the action pending resolution of the Commission investigation.”

We have no quarrel with the general principle that a trial court has discretion, under appropriate circumstances, to stay proceedings pending resolution by the PUC or other administrative body of issues important to the trial court action.   However, we see a key difference between Pacific Bell and this case.   The Pacific Bell court did not reach the preemption question because the defendant's challenge to the preemption ruling was untimely.  (187 Cal.App.3d at p. 140, 231 Cal.Rptr. 574.)   This meant that Pacific Bell was simply reviewing the court's exercise of discretion, which it treated as comparable to a decision whether to yield to an administrative agency's “primary jurisdiction” over a matter.  (Farmers Ins. Exchange v. Superior Court (1992) 2 Cal.4th 377, 389-391, 6 Cal.Rptr.2d 487, 826 P.2d 730.)

 The primary jurisdiction doctrine operates when the claim is originally cognizable in the courts but when enforcing the claim requires resolving issues within the special competence of an administrative body.   (Farmers Ins. Exchange v. Superior Court, supra, 2 Cal.4th at p. 390, 6 Cal.Rptr.2d 487, 826 P.2d 730.)   Thus, it will come into play only if the trial court proceeding is not preempted.   A court therefore should resolve preemption claims before determining whether to stay its proceedings pending a decision by the administrative body.

In these cases, the preemption issue was squarely presented to the trial courts, and it has been properly raised here.   We have concluded that the trial court actions against the regulated utilities are preempted by the PUC. The Los Angeles trial courts should have reached the same conclusion, not stayed proceedings against the public utilities pending resolution by the PUC of its OII.   As to the nonregulated water providers and industrial defendants, the trial court has not exercised its discretion after having sustained the regulated utilities' demurrers.   It should be given the opportunity to do so.

In order to complete the record, at the request of various litigants, we have granted judicial notice of all proceedings before the PUC, including those that took place after the trial courts' rulings.   However, we find these subsequent proceedings irrelevant to our review of the trial court decisions.²¹  The courts were to assess PUC preemption at the time of the motions and measure it by the PUC's jurisdiction and how it had already regulated drinking water quality, not to provide ongoing supervision or review of the PUC proceedings.   The decision in Pacific Bell may have misled the Los Angeles courts into taking a “wait and see” approach instead of rendering a decision on the facts and law before them.   Nevertheless, they erred in staying their proceedings.

Conclusion

In summary, the four actions are preempted insofar as they seek remedies against regulated utilities.   They are not preempted, however, insofar as they state causes of action against the nonregulated water providers and industrial defendants.   The Los Angeles courts erred in staying all proceedings, including those against the regulated utilities, instead of ruling on the various demurrers.   The courts should have sustained the demurrers of the regulated utilities and overruled those of the unregulated water providers and industrial defendants, and then considered whether to issue a stay.   The Ventura County Superior Court ruled correctly on the preemption issues and it did not abuse its discretion in ruling on the motions to stay proceedings.

Let peremptory writs of mandate issue against the Los Angeles County Superior Court, compelling it to vacate the stays in the Adler, Boswell and Celi actions, to reconsider the demurrers filed in these actions, the motion for summary judgment filed in the Boswell action, and motion for judgment on the pleadings in the Adler action, and to enter new orders consistent with the views expressed herein.   The Los Angeles Superior Court is further instructed to reconsider its stay of these actions as to parties other than the regulated utilities in light of the new circumstances removing the regulated utility defendants from the cases.   We note that there may be ongoing proceedings before the PUC or other circumstances which should be considered by the trial court in reassessing the propriety of a stay.   Accordingly, we state no opinion on how the court should exercise its discretion.   The orders to show cause in Action Numbers A085477 and A085496 are discharged, and the petitions for writ of mandate are denied.   The plaintiffs are to bear the costs incurred in this court by the regulated utility defendants in their cases.   All nonregulated water providers and industrial defendants who have appeared in this court by brief or joinder are to bear the plaintiffs' costs in this court, jointly and severally, unless they all stipulate to a better formula.

FOOTNOTES

1.   For ease of reference we have adopted the convention of identifying the parties named as defendants in the underlying proceedings by reference to the following categories.  (1) Water providers subject to PUC regulation are designated herein as “regulated utilities.”  (2) Water providers not subject to PUC regulation, consisting of public water districts and mutual water companies, are designated herein as “nonregulated water providers.”  (3) Nonregulated corporate parties who are not water providers are designated as “industrial defendants.”

2.   Negligence;  Wrongful Death;  Strict Liability;  Trespass;  Public Nuisance;  Private Nuisance;  Negligence Per Se;  Strict Liability for Ultrahazardous Activity;  and Fraudulent Concealment.

3.   The complaint was amended to divide the trespass and two nuisance causes of action into separate “permanent” and “continuing” trespass and nuisance causes of action.

4.   Similar complaints about local water quality were pending in Sacramento County Superior Court against Citizens and SCWC.

5.   Class A utilities are those with more than 10,000 service connections.   Class B utilities have more than 2,000 service connections.

6.   Unless otherwise indicated, all further statutory references are to the Public Utilities Code.

7.   Section 1759 provides in full:  “(a) No court of this state, except the Supreme Court and the court of appeal, to the extent specified in this article, shall have jurisdiction to review, reverse, correct, or annul any order or decision of the commission or to suspend or delay the execution or operation thereof, or to enjoin, restrain, or interfere with the commission in the performance of its official duties, as provided by law and the rules of court. [¶] (b) The writ of mandamus shall lie from the Supreme Court and from the court of appeal to the commission in all proper cases as prescribed in Section 1085 of the Code of Civil Procedure.”

8.   Section 2106 provides in full:  “Any public utility which does, causes to be done, or permits any act, matter, or thing prohibited or declared unlawful, or which omits to do any act, matter, or thing required to be done, either by the Constitution, any law of this State, or any order or decision of the commission, shall be liable to the persons or corporations affected thereby for all loss, damages, or injury caused thereby or resulting therefrom.   If the court finds that the act or omission was willful, it may, in addition to the actual damages, award exemplary damages.   An action to recover for such loss, damage, or injury may be brought in any court of competent jurisdiction by any corporation or person.  [¶] No recovery as provided in this section shall in any manner affect a recovery by the State of the penalties provided in this part or the exercise by the commission of its power to punish for contempt.”

9.   In Ritterbusch, the court upheld recovery in private actions for injury due to contaminated water.   Pittsburgh's municipal water supply was derived from the New York Slough, a source considered unsafe if untreated.   The city's chlorination plant became inoperative for a period of 12 hours one night, causing the discharge of bacteria whose ingestion lead to typhoid fever and dysentery.   Some 20 residents sued for injury or for death of a close relative.   The Supreme Court sustained judgments against the city.  (Ritterbusch v. City of Pittsburg, supra, 205 Cal. at pp. 86-89, 269 P. 930.)

10.   The Wardrop plaintiffs blamed polio on water pumped from a nearby sump and deposited in plaintiffs' backyard, where the affected child played.   The Wardrop court reversed the trial court's judgment notwithstanding the jury verdict and directed entry of judgment in plaintiffs' favor.  (Wardrop v. City of Manhattan Beach, supra, 160 Cal.App.2d at pp. 782-787, 790, 797, 326 P.2d 15.)

11.   The former Dickey Water Pollution Act. (Stats.1949, ch. 1549, pp. 2782-2783.)

12.   DBCP is an acronym for 1-2-Dibromo-3-chloropropane, a fumigant used to control nematode infestation of grapes, tomatoes and tree fruit.   Its use was banned in California 10 years before the Paredes decision.   (Paredes, supra, 203 Cal.App.3d at p. 3, fn. 1, 249 Cal.Rptr. 593)

13.   While the act was initially called the Federal Water Pollution Control Act, it is now commonly referred to as the Federal Clean Water Act. (Attwater & Markle, supra, 19 Pacific L.J. 995, fn. 155.)

14.   Trial court remedies have been permitted when a gas consumer proved that the public utility's meter malfunctioned, causing the consumer to be overcharged (Masonite Corp. v. Pacific Gas & Electric Co. (1976) 65 Cal.App.3d 1, 135 Cal.Rptr. 170), when a malfunctioning utility transformer sent 7,000 volts to the consumer's electrical system, causing a shock to the consumer when she tried to shut off her propane gas tank (Pierce v. Pacific Gas & Electric Co. (1985) 166 Cal.App.3d 68, 212 Cal.Rptr. 283), when minority shareholders sought to prove that a telephone company merger approved by the PUC was unfair to them (Stepak v. American Tel. & Tel. Co. (1986) 186 Cal.App.3d 633, 231 Cal.Rptr. 37), and in an anti-trust action against two cellular telephone companies for wholesale and retail price fixing.  (Cellular Plus, Inc. v. Superior Court (1993) 14 Cal.App.4th 1224, 1243-1250, 18 Cal.Rptr.2d 308.)   In Citizens Utilities Co. v. Superior Court, supra, 56 Cal.App.3d at pp. 407-411, 128 Cal.Rptr. 582, the court found that the Attorney General was not prevented from bringing quo warranto proceedings to cancel the franchise of a water company accused of delivering unsafe water.   However, because the PUC was currently examining the water quality issue, the court concluded quo warranto proceedings were premature.

15.   Courts have also found PUC preemption in the case of a declaratory relief action addressing refund issues which a regulated utility should first have presented to the PUC (People v. Superior Court (1965) 62 Cal.2d 515, 42 Cal.Rptr. 849, 399 P.2d 385), in an action challenging telephone company regulation of advertising in the Yellow Pages (Dollar-A-Day Rent-A-Car Systems, Inc. v. Pacific Tel. & Tel. Co. (1972) 26 Cal.App.3d 454, 102 Cal.Rptr. 651), in a claim that a recreational vehicle park should receive the same baseline gas and electric service authorized by the PUC rate schedule for mobilehome parks (Schell v. Southern Cal. Edison Co. (1988) 204 Cal.App.3d 1039, 1045-1047, 251 Cal.Rptr. 667), in an action directly and indirectly calling into question the PUC's regulatory approach to blocking transmission of sexually explicit messages from telephones with a 976 prefix (Brian T. v. Pacific Bell (1989) 210 Cal.App.3d 894, 258 Cal.Rptr. 707), in a city's attempt to regulate design and construction of a gas pipeline (Southern Cal. Gas Co. v. City of Vernon (1995) 41 Cal.App.4th 209, 215-217, 48 Cal.Rptr.2d 661), and in a city's attempt to prevent a public utility from dredging sand in an adjacent lagoon when necessary to permit sufficient water flow to cool the plant's electric generating units (San Diego Gas & Electric Co. v. City of Carlsbad (1998) 64 Cal.App.4th 785, 75 Cal.Rptr.2d 534).

16.   For example, the Adler complaint alleges that 37 out of 246 wells were found in 1980 to have TCE concentrations above the MCLs.

17.   Our review of federal and state statutes governing drinking water suggests that the legislative bodies have the same narrow focus.   Although the statutes provide for close monitoring and enforcement of MCLs and authorize supplemental citizen enforcement through injunctive relief and penalties, they appear to be silent about damage actions by customers alleging injury from contaminated drinking water.

18.   Plaintiffs contend that PUC jurisdiction cannot dislodge the private right of action established by Proposition 65 or under California's SDWA and that citizen enforcement is an essential part of the regulatory scheme.   This argument is beside the point of these cases, none of which claims to be a private enforcement action under the pertinent statutes.   Private enforcement under both Proposition 65 and the SDWA supplements agency enforcement and may be commenced only after notice to the Attorney General, other prosecutor or appropriate administrator, who does not act diligently.   The private enforcer may seek only injunctive relief and/or statutory penalties.  (Health & Saf.Code, § 25249.7, 42 U.S.C. § 300j-8(b).)   Unless plaintiffs have given the proper notice and intend to forego their damage claims, they do not qualify as citizen enforcers of water quality standards.

19.   “Water Quality in the Basin shall be a concern of Watermaster, and all reasonable steps shall be taken to assist and encourage appropriate regulatory agencies to enforce reasonable water quality regulations affecting the Basin, including regulations of solid and liquid waste disposal.”

20.   We note that in the EMF context, the PUC specifically acknowledged that it lacked authority over “municipal utilities, manufacturers, other state agencies, or other individual organizations.”   (Re Potential Health Effects of Electric and Magnetic Fields of Utili ty Facilities (1993) 52 Cal.P.U.C.2d 1, 28, 1993 WL 561942.)   The PUC deferred regulation of those entities to the DHS. (Ford, supra, 60 Cal.App.4th at p. 705, fn. 11, 70 Cal.Rptr.2d 359.)   Similarly, the PUC lacks authority over nonregulated sources of VOCs and other harmful chemicals.

21.   Plaintiffs imply that the subsequent PUC proceedings are relevant for a different reason.   They argue that the OII proceedings reveal that the PUC is a biased agency without the expertise to conduct a proper investigation into the water quality issues and that the DHS and EPA, not the PUC, truly regulate water quality.   While these arguments may form a ground for attacking the results of the OII directly, they do not overcome the statutory preemption applicable to plaintiffs' actions against the regulated utilities.

JONES, P.J.

HANING, J., and STEVENS, J., concur.