Amended in Senate August 20, 2014

Amended in Senate July 1, 2014

Amended in Senate June 4, 2014

Amended in Assembly May 1, 2014

California Legislature—2013–14 Regular Session

Assembly BillNo. 2442


Introduced by Assembly Member Gordon

(Principal coauthor: Assembly Member Alejo)

February 21, 2014


An act to amend Section 13304 of the Water Code, relating to water quality.

LEGISLATIVE COUNSEL’S DIGEST

AB 2442, as amended, Gordon. Porter-Cologne Water Quality Control Act: remedial action: liability.

Existing law, the Porter-Cologne Water Quality Control Act, requires a person who discharges waste into the waters of the state in violation of waste discharge requirements or other order or prohibition issued by a California regional water quality control board or the State Water Resources Control Board to clean up the waste or to abate the effects of the waste. Existing law authorizes the regional board to expend available moneys to perform any cleanup, abatement, or remedial work required under those circumstances.

This bill would prohibit the statebegin delete board or aend deletebegin insert board,end insert regionalbegin delete boredend deletebegin insert board, or an employee of the state board or regional boardend insert from being held liable in a civil proceeding for trespass or any otherbegin delete actsend deletebegin insert actend insert thatbegin delete areend deletebegin insert isend insert necessary to carry outbegin delete investigations or corrective actionsend deletebegin insert an investigation, cleanup, abatement, or other remedial workend insert. This bill would also prohibit the state board, regional board, or any authorized person from incurring any obligation to undertake additional investigation, cleanup, abatement, or other remedial work solely because of its decision to undertake that work. The bill would require that these provisions apply to a claim against a public entity presented on or after January 1, 2015, or, if no claim is presented, to a cause of action in a civil complaint or a writ petition filed on or after January 1, 2015. The bill would also make various technical, nonsubstantive changes.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

P2    1

SECTION 1.  

Section 13304 of the Water Code is amended to
2read:

3

13304.  

(a) A person who has discharged or discharges waste
4into the waters of this state in violation of any waste discharge
5requirement or other order or prohibition issued by a regional board
6or the state board, or who has caused or permitted, causes or
7permits, or threatens to cause or permit any waste to be discharged
8or deposited where it is, or probably will be, discharged into the
9waters of the state and creates, or threatens to create, a condition
10of pollution or nuisance, shall, upon order of the regional board,
11clean up the waste or abate the effects of the waste, or, in the case
12of threatened pollution or nuisance, take other necessary remedial
13action, including, but not limited to, overseeing cleanup and
14abatement efforts. A cleanup and abatement order issued by the
15state board or a regional board may require the provision of, or
16payment for, uninterrupted replacement water service, which may
17include wellhead treatment, to each affected public water supplier
18or private well owner. Upon failure of a person to comply with
19the cleanup or abatement order, the Attorney General, at the request
20of the board, shall petition the superior court for that county for
21the issuance of an injunction requiring the person to comply with
22the order. In the suit, the court shall have jurisdiction to grant a
23prohibitory or mandatory injunction, either preliminary or
24permanent, as the facts may warrant.

25(b) (1) The regional board may expend available moneys to
26perform any cleanup, abatement, or remedial work required under
P3    1the circumstances set forth in subdivision (a), including, but not
2limited to, supervision of cleanup and abatement activities that, in
3its judgment, is required by the magnitude of the endeavor or the
4urgency for prompt action to prevent substantial pollution,
5nuisance, or injury to any waters of the state. The action may be
6taken in default of, or in addition to, remedial work by the waste
7discharger or other persons, and regardless of whether injunctive
8relief is being sought.

9(2) The regional board may perform the work itself, or with the
10cooperation of any other governmental agency, and may use rented
11tools or equipment, either with operators furnished or unoperated.
12Notwithstanding any other provisions of law, the regional board
13may enter into oral contracts for the work, and the contracts,
14whether written or oral, may include provisions for equipment
15rental and in addition the furnishing of labor and materials
16necessary to accomplish the work. The contracts shall not be
17subject to approval by the Department of General Services.

18(3) The regional board shall be permitted reasonable access to
19the affected property as necessary to perform any cleanup,
20abatement, or other remedial work. The access shall be obtained
21with the consent of the owner or possessor of the property or, if
22the consent is withheld, with a warrant duly issued pursuant to the
23procedure described in Title 13 (commencing with Section
241822.50) of Part 3 of the Code of Civil Procedure. However, in
25the event of an emergency affecting public health or safety, the
26regional board may enter the property without consent or the
27issuance of a warrant.

28(4) The regional board may contract with a water agency to
29perform, under the direction of the regional board, investigations
30of existing or threatened groundwater pollution or nuisance. The
31agency’s cost of performing the contracted services shall be
32reimbursed by the regional board from the first available funds
33obtained from cost recovery actions for the specific site. The
34authority of a regional board to contract with a water agency is
35limited to a water agency that draws groundwater from the affected
36aquifer, a metropolitan water district, or a local public agency
37responsible for water supply or water quality in a groundwater
38basin.

39(5) (A) If the state board or regional board, either directly or
40by contracting for services, undertakes to perform an investigation,
P4    1cleanup, abatement, or other remedial work, both of the following
2shall apply:

3(i) begin deleteNeither the end deletebegin insertThe end insertstatebegin delete board nor aend deletebegin insert board,end insert regionalbegin delete boardend deletebegin insert board,
4or an employee of the state board or regional boardend insert
shallbegin insert notend insert be
5held liable in a civil proceeding for trespass or any otherbegin delete actsend deletebegin insert actend insert
6 thatbegin delete areend deletebegin insert isend insert necessary to carry outbegin delete investigations or corrective actions
7authorized by this sectionend delete
begin insert an investigation, cleanup, abatement,
8or other remedial workend insert
.

9(ii) The state board, regional board, or any authorized person
10shall not incur any obligation to undertake additional investigation,
11cleanup, abatement, or other remedial work, solely as a result of
12having conducted the work.

13(B) The following applies for purposes of this paragraph:

14(i) “Authorized person” means any of the following:

15(I) An employee or independent contractor of the state board
16or regional board.

17(II) A person from whom investigation, cleanup, abatement, or
18other remedial work is contracted by the state board or regional
19board.

20(III) An employee or independent contractor of a person
21described in subclause (I) or (II).

22(ii) “Investigation, cleanup, abatement, or other remedial work”
23includes investigation, cleanup, abatement, or other remedial work
24performed pursuant to this section or Section 13267, or corrective
25action performed pursuant to Section 25296.10 or 25299.36 of the
26Health and Safety Code.

27(C) It is not the intent of this paragraph to do any of the
28following:

29(i) Impair any cause of action by the state board or regional
30board against any person, including, but not limited to, a cause of
31action for breach of contract or indemnity.

32(ii) Limit the state board’s or regional board’s authority over
33any person.

34(iii) Limit any other applicable defenses to liability or create a
35cause of action.

36(c) (1) If the waste is cleaned up or the effects of the waste are
37abated, or, in the case of threatened pollution or nuisance, other
38necessary remedial action is taken by a governmental agency, the
39person or persons who discharged the waste, discharges the waste,
40or threatened to cause or permit the discharge of the waste within
P5    1the meaning of subdivision (a), are liable to that governmental
2agency to the extent of the reasonable costs actually incurred in
3cleaning up the waste, abating the effects of the waste, supervising
4cleanup or abatement activities, or taking other remedial action.
5The amount of the costs is recoverable in a civil action by, and
6paid to, the governmental agency and the state board to the extent
7of the latter’s contribution to the cleanup costs from the State Water
8Pollution Cleanup and Abatement Account or other available funds.

9(2) The amount of the costs constitutes a lien on the affected
10property upon service of a copy of the notice of lien on the owner
11and upon the recordation of a notice of lien, that identifies the
12property on which the condition was abated, the amount of the
13lien, and the owner of record of the property, in the office of the
14county recorder of the county in which the property is located.
15Upon recordation, the lien has the same force, effect, and priority
16as a judgment lien, except that it attaches only to the property
17posted and described in the notice of lien, and shall continue for
1810 years from the time of the recording of the notice, unless sooner
19released or otherwise discharged. No later than 45 days after
20receiving a notice of lien, the owner may petition the court for an
21order releasing the property from the lien or reducing the amount
22of the lien. In this court action, the governmental agency that
23incurred the cleanup costs shall establish that the costs were
24reasonable and necessary. The lien may be foreclosed by an action
25brought by the state board on behalf of the regional board for a
26money judgment. Moneys recovered by a judgment in favor of the
27state board shall be deposited in the State Water Pollution Cleanup
28and Abatement Account.

29(d) If, despite reasonable efforts by the regional board to identify
30the person responsible for the discharge of waste or the condition
31of pollution or nuisance, the person is not identified at the time
32cleanup, abatement, or remedial work is required to be performed,
33the regional board is not required to issue an order under this
34section.

35(e) “Threaten,” for purposes of this section, means a condition
36creating a substantial probability of harm, when the probability
37and potential extent of harm make it reasonably necessary to take
38immediate action to prevent, reduce, or mitigate damages to
39persons, property, or natural resources.

P6    1(f) Replacement water provided pursuant to subdivision (a) shall
2meet all applicable federal, state, and local drinking water
3standards, and shall have comparable quality to that pumped by
4the public water system or private well owner before the discharge
5of waste.

6(g) (1) A public water supplier or private well owner receiving
7replacement water by reason of an order issued pursuant to
8subdivision (a), or a person or entity who is ordered to provide
9replacement water pursuant to subdivision (a), may request
10nonbinding mediation of all replacement water claims.

11(2) If requested, the public water suppliers receiving the
12replacement water and the persons or entities ordered to provide
13the replacement water, within 30 days of the submittal of a water
14replacement plan, shall engage in at least one confidential
15settlement discussion before a mutually acceptable mediator.

16(3) Any agreement between parties regarding replacement water
17claims resulting from participation in the nonbinding mediation
18process shall be consistent with the requirements of any cleanup
19and abatement order.

20(4) A regional board or the state board is not required to
21participate in any nonbinding mediation requested pursuant to
22paragraph (1).

23(5) The party or parties requesting the mediation shall pay for
24the costs of the mediation.

25(h) As part of a cleanup and abatement order that requires the
26provision of replacement water, a regional board or the state board
27shall request a water replacement plan from the discharger in cases
28where replacement water is to be provided for more than 30 days.
29The water replacement plan is subject to the approval of the
30regional board or the state board before its implementation.

31(i) A “water replacement plan” means a plan pursuant to which
32the discharger will provide replacement water in accordance with
33a cleanup and abatement order.

34(j) This section does not impose any new liability for acts
35occurring before January 1, 1981, if the acts were not in violation
36of existing laws or regulations at the time they occurred.

37(k) Nothing in this section limits the authority of a state agency
38under any other law or regulation to enforce or administer any
39cleanup or abatement activity.

P7    1(l) The Legislature declares that the amendments made to
2subdivision (a) by Chapter 614 of the Statutes of 2003 do not
3constitute a change in, but are declaratory of, existing law.

4(m) Paragraph (5) of subdivision (b) shall apply to a claim
5presented pursuant to Part 3 (commencing with Section 900) of
6Division 3.6 of Title 1 of the Government Code on or after January
71, 2015, or, if no claim is presented pursuant to those provisions,
8to a cause of action in a civil complaint or writ petition filed on or
9after January 1, 2015.



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