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