BILL ANALYSIS
AB 334
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Byron D. Sher, Chairman
2003-2004 Regular Session
BILL NO: AB 334
AUTHOR: Goldberg
AMENDED: May 19, 2003
FISCAL: No HEARING DATE: July 7, 2003
URGENCY: No CONSULTANT: Kip Lipper
SUBJECT : WATER QUALITY CONTROL; WATER SOFTENING
AND CONDITIONING APPLIANCES
SUMMARY :
Existing law :
1) Authorizes local agencies to adopt ordinances limiting or
prohibiting the use of residential self-generating water
softeners that discharge to the community sewer system if
the ordinance contains the following findings:
a) The local agency is out of compliance with waste
discharge requirements issued by a regional water
quality control board, water reclamation requirements,
or master reclamation permits;
b) Self-generating water softener control is the only
available means of achieving compliance;
c) Non-residential saline discharges have been limited
to the extent technologically and economically feasible.
2) Requires the findings to be substantiated by an independent
study of all sources of salinity that quantifies each
source and the actions taken to reduce discharges.
3) Requires the Department of Water Resources (DWR) to convene
a 2002 Recycled Water Task Force (Task Force), with
specified membership, to advise DWR in investigating the
opportunities for using recycled water in industrial and
commercial applications and in identifying impediments and
constraints to increasing the industrial and commercial use
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of recycled water, and requires a report to the
Legislature, with recommendations on specified topics, no
later than July 1, 2003.
This bill :
1) Eliminates the requirement that a local agency make
findings and substantiate that it is out of compliance with
its waste discharge requirements, water reclamation
requirements, or master reclamation permit as a
pre-condition to adoption of an ordinance.
2) Amends the requirement that a local agency make a finding
that self-generating water softener control is the only
available means of achieving compliance, and instead allows
the local agency to find that it is a necessary means of
compliance.
3) In making the determination described in (2) above,
requires the local agency to assess the technological and
economic feasibility of alternatives to the ordinance, and
the potential saline discharge reduction of the ordinance.
COMMENTS :
1) Purpose of Bill . According to the sponsor of this
measure,:
"This bill seeks to implement a recommendation of the 2002
Recycled Water Task Force established by AB 331 (Goldberg),
Chapter 590, 2001.
The Task Force approved the following recommendation for
legislation in May 2003, in its final report entitled
"Water Recycling 2030: Recommendations of California's
Recycled Water Task Force":
"Recommendation 4.3.1: Local agencies should be empowered to
regulate the discharge of residential water softeners in
the same manner as other sources of discharge into sewers.
Legislation should be proposed to amend the Health and
Safety Code Sections 116775 through 116795 to reduce the
restrictions on the local ability to impose bans on or more
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stringent standards for residential water softeners.
"Over the last few decades, increasing numbers of residents in
California have installed self-regenerating water softeners
in their homes to reduce problems, primarily aesthetic in
nature, caused by hard water. Unfortunately, the use of
self-regenerating softeners, has led to increased salt in
the water discharged to the sewer, which following
treatment is then reused or discharged to local waterways.
However, the treatment processes used by the most local
agencies does not remove salts, and adding the treatment to
do so is very expensive and creates brine, the disposal of
which can be costly and difficult. Recycled water is
viewed as an important component of California's future
water supply. Excessive quantities of salt added to
recycled water can push recycled water agencies into
non-compliance with their water quality permits and make
the recycled water unmarketable for key uses.
According to the Water Quality Association, the association
representing the manufacturers and marketers of
self-regenerating water softeners, lawsuits in which they
prevailed during the 1990s resulted in the invalidation of
over 140 local ordinances that previously curtailed the use
of these water softeners in California communities.
There exists the legal authority to impose limits on
pollutants discharged into sewer systems from industrial
and commercial sources. Additionally, local governments
have fairly broad authority with regard to consumer
products, with the exception of self-regenerating water
softeners. Such authorities may include the ability to
regulate sales and the ability to regulate use and
discharge of consumer products.
However, current law specifically restricts the ability of
local governments to prohibit the sales and use of
self-regenerating water softeners. Local agencies need to
be able to impose restrictions on those sources of
pollutant discharge that are most cost-effective and
administratively feasible to reduce. State law should not
prevent local solutions to problems that may vary from
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locale to locale and from watershed to watershed.
In 1999, SB 1006 was enacted that attempted to modify a 1970's
era softener industry-sponsored state preemption of local
control of softeners; however, under existing law
controlling softeners must be the last resort for local
decision makers.
SB 1006 requires a local agency to be out of compliance with
their waste discharge requirements (and thus subject to
fines by regulators) before being able to ban salt loading
water softeners and even if they are out of compliance.
Such a requirement jeopardizes a safe and reliable source
of water supply (namely, recycled water).
They must regulate all other sources of non-residential salt,
then an independent study must be conducted (which ignores
regulating the grand-fathered machines that contribute to
non-compliance) showing residential regulation is the "only
available means" to reach compliance with waste discharge
permits, which may significantly delay action until the
problem is too severe to remedy.
State policy should encourage local agencies to take
preventative action, which will prove less costly to
ratepayers while protecting receiving waters and
groundwater basins.
The current version of AB 334 is a compromise that was
developed through negotiations with the bills opponents
before the bill was taken up on the Assembly floor. The
bill allows local agencies to limit the availability or
prohibit the installation of the appliances if it is "a
necessary means of achieving compliance" with various
regulators. The compromise included leaving the study and
maintaining that the ordinance be prospective."
2) The Long and Salty Legislative History of Water Softeners
Described . Several years ago, this committee heard SB 1006
(Costa) which was a very contentious measure but which
ultimately was approved by this committee and signed into
law. The consultant analyzing the bill at the time wrote
the following comment on the legislative history of the
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issue:
"The conflict [between the water softening industry and local
agencies] has apparently been an issue for many years.
Existing law, which resolved the issue in favor of residential
water consumers and the water softener industry was enacted
21 years ago by SB 2148 (Campbell). Senator Campbell has
stated that the intent behind the bill was threefold: a)
To ensure that water consumers would be able to enjoy the
benefits of softened water at a reasonable cost. b) To
require that water softeners meet a statewide numerical
efficiency standard - namely the removal of 6.5 ounces of
the dissolved solids that cause hard water for each pound
of salt used to regenerate the water softeners. c) To
prohibit local jurisdictions from outlawing the sale and
use of self-regenerating water softeners by enacting a
state statute that preempts local ordinances.
Since the enactment of SB 1248 in 1978, local agencies around
the state have enacted ordinances or rules regulating or
banning the use of self-regenerating water softeners.
These ordinances have been challenged in court and have
been found to be invalid by at least two state district
courts of appeal in Water Quality Assn. v. County of Santa
Barbara (1996) and Water Quality Assn. v. City of Escondido
(1997). In both cases, the courts held that local
ordinances regulating or banning self-regenerating water
softeners are void because state law regulating water
softeners has preempted local control by occupying the
field. The appeal courts went on to state that if local
agencies wish to regulate or ban self-regenerating water
softeners, "they must seek amendment or repeal of the [now
existing] state statutory scheme."
According to the Assembly Environmental Safety and Toxic
Materials analysis of this measure :
Since the late 1990's, SB 1006 (Costa) (Chapter 969, Statutes
of 1999), was adopted that partially codified the courts'
recommendations. SB 1006 required higher efficiency levels
for residential self-generating water softeners and put in
place a set of criteria under which local agencies are able
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to regulate softeners. Supporters contend that even the
most efficient softeners still allow an excessive amount of
salt into local wastewater and the criteria for local
regulation is incredibly onerous in practice.
AB 331 (Goldberg) (Chapter 590, Statutes of 2001), established
the Task Force to identify impediments to the use of
recycled water. At its January 10, 2003 meeting, the Task
Force approved the following recommendation for
legislation: "Adopt legislation to increase local
flexibility to regulate water softeners."
3) Technical Amendment Recommended . On page 4, line 4 the
operative date specified in the bill (and law) could be
deleted, since the bill, on its own terms, does not take
effect until January 1, 3003.
SOURCE : California WateReuse Association
SUPPORT : Association of California Water Agencies,
California Association of Sanitation Agencies,
Calleguas Municipal Water District, Camarillo
Sanitary District, Cities of Chino Hills, Simi
Valley and Thousand Oaks, County Sanitation
Districts of Los Angeles County, East Bay
Municipal Utility District, Heal the Bay,
Irvine Ranch Water District, League of
California Cities, League of Women Voters,
Matson Navigation Company, Metropolitan Water
District of Southern California, Orange County
Sanitation District, Orange County Water
District, Regional Council of Rural Counties,
San Diego Water Authority, Santa Clara Valley
Water District, Sierra Club California
OPPOSITION : None on file