BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                AB 938
                                                                       

                      SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
                        Senator S. Joseph Simitian, Chairman
                              2011-2012 Regular Session
                                           
           BILL NO:    AB 938
           AUTHOR:     V.M. Perez
           AMENDED:    May 4, 2011
           FISCAL:     Yes               HEARING DATE:     June 27, 2011
           URGENCY:    No                CONSULTANT:       Randy Pestor
            
           SUBJECT  :    REGULATORY REQUIREMENTS

            SUMMARY  :    
           
            Existing law  :

           1) Under the California Safe Drinking Water Act, requires 
              public water system operators to provide public notice to 
              users under certain circumstances (e.g., failure to comply 
              with any primary drinking water standard that represents an 
              imminent danger to water system users, local health 
              department recommends notice for users to avoid internal 
              consumption of the water supply and to use bottled water 
              due to a chemical contamination problem that may pose a 
              health risk).

           2) Under the Safe Drinking Water State Revolving Fund Law of 
              1997: 

              a)    Sets the maximum "planning grant" for a participating 
                 public water system's costs for planning, engineering 
                 studies, environmental documentation, and design of a 
                 project at no more than $500,000.  Maximum amounts are 
                 also set for construction grants. 

              b)    Requires total funding for planning, engineering 
                 studies, project design, and construction costs, whether 
                 in the form of a loan or grant, to be determined by an 
                 assessment of affordability using criteria established 
                 by the Department of Public Health (DPH).

            This bill  :










                                                                AB 938
                                                                 Page 2

           1) Under the California Safe Drinking Water Act: 

              a)    Requires public water system operator notices given 
                 in accordance with the above requirements to also:

                 i)         Be provided in English, Spanish, and in the 
                      language spoken by any non-English speaking group 
                      that exceeds 10% of persons served by the public 
                      water system.

                 ii)        Contain a telephone number or address where 
                      residents may contact the public water system for 
                      assistance.

                 iii)       Contain information regarding the importance 
                      of the notice and a telephone number or address 
                      where the public water system will provide either a 
                      translated copy of the notice or assistance in the 
                      appropriate language for each group that speaks a 
                      language other than English or Spanish and that 
                      exceeds 1,000 residents or 10% of the persons 
                      served by the public water system, whichever is 
                      less.

              b)    Provides that after July 1, 2012, it must be presumed 
                 that the above notice has been properly given with 
                 respect to the language of notification if the public 
                 water system has utilized the data available through the 
                 American Community Survey of the U.S. Census Bureau and 
                 the county registrar.

              c)    Authorizes and encourages a public water system to 
                 provide notice through foreign language media outlets, 
                 in addition to nonwritten notification provided for in 
                 the public water system's emergency notification plan.

           2) Under the Safe Drinking Water State Revolving Fund Law of 
              1997, adds "environmental documentation" to the list of 
              costs to be determined by an assessment of affordability 
              using DPH criteria.

            COMMENTS  :










                                                                AB 938
                                                                 Page 3


            1) Purpose of Bill  .  According to the author, "Public 
              notification to residents regarding contaminated drinking 
              water is necessary to prevent illness and disease and 
              protect public health.  When a public water system sends a 
              public notification only in English to non-English 
              speakers, the risks to public health persist.  If public 
              notices are not provided in the language spoken by the 
              impacted community, residents may not know that the water 
              in their homes is unsafe and what precautions are necessary 
              to protect the health and safety of their family."

           The author believes that "AB 938 addresses an urgent problem 
              in some California communities where the water is not safe 
              to drink yet customers are receiving notifications that 
              they do not understand. All Californians have the right to 
              know when it is not safe to drink their water."

           The author notes that AB 938 also "makes clarifying amendments 
              to the Safe Drinking Water State Revolving Fund language to 
              correct an oversight in the law related to the list of 
              costs to be determined in affordability assessments for 
              awards from the Fund."

            2) Revising notice requirements under the California Safe 
              Drinking Water Act  .  Regulations currently require public 
              notice to "contain information in Spanish regarding the 
              importance of the notice, or contain a telephone number or 
              address where Spanish-speaking residents may contact the 
              water system to obtain a translated copy of the public 
              notice or assistance in Spanish."  This regulatory 
              requirement similarly applies, with additional information 
              (e.g., information regarding importance of the notice or a 
              telephone number or address where residents may contact the 
              public water system for translated information), to each 
              non-English speaking group other than Spanish-speaking that 
              exceeds 1,000 residents or 10% of the residents in the 
              community served, whichever is less.  Also, the regulations 
              contain other requirements relating to, for example, how 
              the notice should be displayed and the notice font size.  
              (22 Cal. Code of Regs. §66465).











                                                                AB 938
                                                                 Page 4

           The author wants to place public water system operator public 
              notice requirements in statute due to concerns about the 
              adequacy of current regulatory notice requirements and the 
              length of time expected to revise current regulations.  
              Under AB 938, the public notice would be provided in 
              English, Spanish, and in the language spoken by any 
              non-English speaking group that exceeds 10% of persons 
              served by the public water system.  Additional information 
              (e.g., information regarding importance of the notice and a 
              telephone number or address where residents may contact the 
              public water system for translated information) must also 
              be provided for each group speaking a language other than 
              English or Spanish exceeding 1,000 residents or 10% of 
              persons served by the public water system, whichever is 
              less.

            3) Opposition and support concerns  .  According to the 
              Association of California Water Agencies, California 
              Municipal Utilities Association, and California Water 
              Association, this bill "would greatly expand translation 
              requirements for public water systems from current 
              regulations, which have only been in place since 2007 . . . 
              In large metropolitan areas, this could mean translating 
              the notice into more than 20 languages within 24 hours.  A 
              water emergency could take place in the middle of the night 
              on a weekend, and complying with this new provision would 
              be very challenging."  These organizations would like 
              amendments relating to the "safe harbor" provision (page 4, 
              lines 31 to 34, inclusive) to further address information 
              sources, while also addressing concerns over liability for 
              translation errors.

           According to the California Rural Legal Assistance Foundation 
              in supporting AB 938, "Water providers are currently 
              required to know the language of their customer.  AB 938 is 
              addressing an urgent problem in some water systems where 
              proper notification is not given to residents when their 
              water is not safe to drink.  It is important that ALL 
              Californians have the Right-To-Know when it is not safe to 
              drink their water.  AB 938 only applies to serious drinking 
              water violations.  Most water systems do not have these 
              violations, because they provide safe drinking water."










                                                                AB 938
                                                                 Page 5


            4) Related legislation  .  AB 1438 (Conway) Chapter 531, 
              Statutes of 2009, among other things, sets a limit of 
              $500,000 for planning, engineering studies, environmental 
              documentation, and design of a single project.  Current law 
              also requires total funding for planning, engineering 
              studies, project design, and construction costs, whether in 
              the form of a loan or grant, to be determined by an 
              assessment of affordability using criteria established by 
              DPH.  AB 1438, however, did not add "environmental 
              documentation" to the affordability assessment requirement.

           AB 2669 (V.M. Perez) of 2010 revised notice requirements under 
              the California Safe Drinking Water Act and clarified 
              planning grant provisions under the Safe Drinking Water 
              State Revolving Fund Law of 1997 by adding "environmental 
              documentation" to the affordability assessment requirement. 
               AB 2669 failed on the Senate Floor August 31, 2010 (15-8) 
              (  NOTE  :   the author had already decided that the bill 
              should not be taken up on the Senate Floor because he 
              wanted to continue working with opponents on the notice 
              issues prior to the 2011-12 Session, which the Senate Floor 
              Manager apparently did not know).

            5) Clarification needed  .  AB 938 contains a presumption that 
              the notice required by the bill has been properly given 
              with respect to the language of notification if the public 
              water system has utilized the data available through the 
              American Community Survey of the U.S. Census Bureau and the 
              county registrar.  Any such presumption should relate to 
              the sources of information used to determine the language 
              of notification - not that the notice was properly given, 
              and a reference to the county registrar should be stricken. 
               The author and some opponents are also concerned about the 
              need for a presumption (or "safe harbor") provision 
              relating to translation efforts and that the above 
              requirements should apply to a Tier 1 public notice that 
              must be provided in certain circumstances.

           Clarification is also needed regarding §116450(h)(3) (page 4, 
              lines 25 and 26) regarding notice and the percentage of 
              persons served by the public water system (strike "or 10 










                                                                AB 938
                                                                 Page 6

              percent of the persons served by the public water system, 
              whichever is less" and insert "but is less than 10 percent 
              of the persons served by the public water system" 
              referenced in the previous paragraph).

           Finally, clarification is needed in the various subdivisions 
              and paragraphs of the amendments. 

            SOURCE  :        California Rural Legal Assistance Foundation, 
                          Clean Water Action, Community Water Center, 
                          Environmental Justice Coalition for Water  

           SUPPORT  :       Asian Americans for Civil Rights & Equality, 
                          California League of Conservation Voters, 
                          California Pan-Ethnic Health Network, Catholic 
                          Charities Diocese of Stockton, Coachella Valley 
                          Water District, Environmental Working Group, 
                          Food and Water Watch, Having Our Say, Planning 
                          and Conservation League, Natural Resources 
                          Defense Council, Southern California Watershed 
                          Alliance, Unitarian Universalist Legislative 
                          Ministry Action Network California, Urban 
                          Semillas, The Utility Reform Network, Unitarian 
                          Universalist Service Committee, Winnemem Wintu 
                          Tribe, Women's International League for Peace 
                          and Freedom,  

           OPPOSITION  :    Association of California Water Agencies, 
                          California Municipal Utilities Association, 
                          California Water Association, California Water 
                          Service Company, Cucamonga Valley Water 
                          District