BILL NUMBER: AB 378 CHAPTERED 09/25/01 CHAPTER 332 FILED WITH SECRETARY OF STATE SEPTEMBER 25, 2001 APPROVED BY GOVERNOR SEPTEMBER 24, 2001 PASSED THE ASSEMBLY AUGUST 30, 2001 PASSED THE SENATE AUGUST 27, 2001 AMENDED IN SENATE JULY 17, 2001 AMENDED IN SENATE JULY 5, 2001 AMENDED IN SENATE JUNE 21, 2001 AMENDED IN ASSEMBLY MAY 21, 2001 INTRODUCED BY Assembly Member Calderon (Coauthor: Assembly Member Maddox) FEBRUARY 20, 2001 An act to amend Section 13304 of, and to add Section 13304.1 to, the Water Code, relating to water. LEGISLATIVE COUNSEL'S DIGEST AB 378, Calderon. Water quality: cleanup. Existing law authorizes a California regional water quality control board, by itself or with the cooperation of any other governmental agency, to clean up or abate the effects of waste and provides that the person who discharges the waste is liable to that regional board or other governmental agency for reasonable costs actually incurred in cleaning up or abating the effects of the waste. Existing law provides that those costs are recoverable in a civil action and that the amount of those costs constitutes a lien on the affected property. This bill would authorize a regional board to contract with a water agency to perform, under the direction of the regional board, investigations of existing or threatened groundwater pollution or nuisance. The bill would require a groundwater cleanup system that commences operation on or after January 1, 2002, and that is required to obtain a discharge permit from the regional board, and that discharges treated groundwater to surface water or groundwater, to treat the groundwater to standards approved by the appropriate regional board, as prescribed. The bill would require the appropriate regional board to consult with various specified entities in making its determination of the applicable water quality standards to be achieved by the operator of a groundwater cleanup system that commences operation on or after January 1, 2002, that draws groundwater from an aquifer that is currently being used or has been used at any time since 1979 as a source of drinking water supply by the owner or operator of a public water system, and that discharges treated groundwater to surface water or groundwater from which a public water system draws drinking water. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. The Legislature makes all of the following findings and declarations: (a) Groundwater basins throughout the state are essential and invaluable sources of drinking water supplies. (b) Drinking water pumped from groundwater basins throughout the state represents a vitally important component of the state's water supplies. (c) The preservation and restoration of contaminated groundwater basins is of critical importance to achieving the state's objective of ensuring reliable supplies of drinking water for the people of the state without undue reliance on imported water supplies. (d) The loss or diminishment of drinking water supplies from groundwater basins because of contamination or pollution constitutes waste of water. SEC. 2. Section 13304 of the Water Code is amended to read: 13304. (a) Any person who has discharged or discharges waste into the waters of this state in violation of any waste discharge requirement or other order or prohibition issued by a regional board or the state board, or who has caused or permitted, causes or permits, or threatens to cause or permit any waste to be discharged or deposited where it is, or probably will be, discharged into the waters of the state and creates, or threatens to create, a condition of pollution or nuisance, shall upon order of the regional board, clean up the waste or abate the effects of the waste, or, in the case of threatened pollution or nuisance, take other necessary remedial action, including, but not limited to, overseeing cleanup and abatement efforts. Upon failure of any person to comply with the cleanup or abatement order, the Attorney General, at the request of the board, shall petition the superior court for that county for the issuance of an injunction requiring the person to comply with the order. In the suit, the court shall have jurisdiction to grant a prohibitory or mandatory injunction, either preliminary or permanent, as the facts may warrant. (b) (1) The regional board may expend available money to perform any cleanup, abatement, or remedial work required under the circumstances set forth in subdivision (a), including, but not limited to, supervision of cleanup and abatement activities that, in its judgment, is required by the magnitude of the endeavor or the urgency for prompt action to prevent substantial pollution, nuisance, or injury to any waters of the state. The action may be taken in default of, or in addition to, remedial work by the waste discharger or other persons, and regardless of whether injunctive relief is being sought. (2) The regional board may perform the work itself, or with the cooperation of any other governmental agency, and may use rented tools or equipment, either with operators furnished or unoperated. Notwithstanding any other provisions of law, the regional board may enter into oral contracts for the work, and the contracts, whether written or oral, may include provisions for equipment rental and in addition the furnishing of labor and materials necessary to accomplish the work. The contracts are not subject to approval by the Department of General Services. (3) The regional board shall be permitted reasonable access to the affected property as necessary to perform any cleanup, abatement, or other remedial work. The access shall be obtained with the consent of the owner or possessor of the property or, if the consent is withheld, with a warrant duly issued pursuant to the procedure described in Title 13 (commencing with Section 1822.50) of Part 3 of the Code of Civil Procedure. However, in the event of an emergency affecting public health or safety, the regional board may enter the property without consent or the issuance of a warrant. (4) The regional board may contract with a water agency to perform, under the direction of the regional board, investigations of existing or threatened groundwater pollution or nuisance. The agency's cost of performing the contracted services shall be reimbursed by the regional board from the first available funds obtained from cost recovery actions for the specific site. The authority of a regional board to contract with a water agency is limited to a water agency that draws groundwater from the affected aquifer, a metropolitan water district, or a local public agency responsible for water supply or water quality in a groundwater basin. (c) (1) If the waste is cleaned up or the effects of the waste are abated, or, in the case of threatened pollution or nuisance, other necessary remedial action is taken by any governmental agency, the person or persons who discharged the waste, discharges the waste, or threatened to cause or permit the discharge of the waste within the meaning of subdivision (a), are liable to that governmental agency to the extent of the reasonable costs actually incurred in cleaning up the waste, abating the effects of the waste, supervising cleanup or abatement activities, or taking other remedial action. The amount of the costs is recoverable in a civil action by, and paid to, the governmental agency and the state board to the extent of the latter's contribution to the cleanup costs from the State Water Pollution Cleanup and Abatement Account or other available funds. (2) The amount of the costs constitutes a lien on the affected property upon service of a copy of the notice of lien on the owner and upon the recordation of a notice of lien, that identifies the property on which the condition was abated, the amount of the lien, and the owner of record of the property, in the office of the county recorder of the county in which the property is located. Upon recordation, the lien has the same force, effect, and priority as a judgment lien, except that it attaches only to the property posted and described in the notice of lien, and shall continue for 10 years from the time of the recording of the notice, unless sooner released or otherwise discharged. Not later than 45 days after receiving a notice of lien, the owner may petition the court for an order releasing the property from the lien or reducing the amount of the lien. In this court action, the governmental agency that incurred the cleanup costs shall establish that the costs were reasonable and necessary. The lien may be foreclosed by an action brought by the state board on behalf of the regional board for a money judgment. Money recovered by a judgment in favor of the state board shall be deposited in the State Water Pollution Cleanup and Abatement Account. (d) If, despite reasonable effort by the regional board to identify the person responsible for the discharge of waste or the condition of pollution or nuisance, the person is not identified at the time cleanup, abatement, or remedial work is required to be performed, the regional board is not required to issue an order under this section. (e) "Threaten," for purposes of this section, means a condition creating a substantial probability of harm, when the probability and potential extent of harm make it reasonably necessary to take immediate action to prevent, reduce, or mitigate damages to persons, property, or natural resources. (f) This section does not impose any new liability for acts occurring before January 1, 1981, if the acts were not in violation of existing laws or regulations at the time they occurred. (g) Nothing in this section limits the authority of any state agency under any other law or regulation to enforce or administer any cleanup or abatement activity. SEC. 3. Section 13304.1 is added to the Water Code, to read: 13304.1. (a) A groundwater cleanup system that commences operation on or after January 1, 2002, and that is required to obtain a discharge permit from the regional board pursuant to the regional board's jurisdiction, and that discharges treated groundwater to surface water or groundwater, shall treat the groundwater to standards approved by the regional board, consistent with this division and taking into account the beneficial uses of the receiving water and the location of the discharge and the method by which the discharge takes place. (b) In making its determination of the applicable water quality standards to be achieved by the operator of a groundwater cleanup system that commences operation on or after January 1, 2002, that draws groundwater from an aquifer that is currently being used, or has been used at any time since 1979 as a source of drinking water supply by the owner or operator of a public water system, and that discharges treated groundwater to surface water or groundwater from which a public water system draws drinking water, the regional board shall consult with the affected groundwater management entity, if any, affected public water systems, and the State Department of Health Services to ensure that the discharge, spreading, or injection of the treated groundwater will not adversely affect the beneficial uses of any groundwater basin or surface water body that is or may be used by a public water system for the provision of drinking water.