BILL ANALYSIS Ó AB 2442 SENATE COMMITTEE ON ENVIRONMENTAL QUALITY Senator Jerry Hill, Chair 2013-2014 Regular Session BILL NO: AB 2442 AUTHOR: Gordon AMENDED: June 4, 2014 FISCAL: No HEARING DATE: June 18, 2014 URGENCY: No CONSULTANT: Rachel Machi Wagoner SUBJECT : PORTER COLOGNE WATER QUALITY CONTROL ACT: REMEDIAL ACTION: LIABILITY Existing law : 1)Under the Porter-Cologne Water Quality Control Act (Porter-Cologne), 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 (regional boards) or the State Water Resources Control Board (SWRCB) to clean up the waste or to abate the effects of the waste. 2)Authorizes the SWRCB and regional boards to investigate actual or suspected waste discharges that threaten water quality. Provides that if no viable responsible party (RP) or discharger is identified for a polluted site, the SWRCB or regional boards may contract for the cleanup. 3)Authorizes SWRCB and the regional boards to require a person, who has discharged waste so as to cause or threaten to cause pollution or nuisance, to clean up the waste and abate the effects of the discharge. 4)Provides liability immunity for the Department of Toxic Substances Control (DTSC) to enter upon any lands for the purpose of taking removal or remedial action. 5)Under the Polanco Act, authorizes a local agency to investigate and clean up releases or spills within the boundaries of the local agency, and provides immunity from further liability to the local agency and any person who AB 2442 Page 2 enters into an agreement with that local agency to develop the property as well as future property owners. Defines "local agency" as a county, a city, a city and county, or a housing authority. This bill provides SWRCB and the regional boards with limited protection from civil liability related to investigating and cleaning up water pollution. COMMENTS : 1) Purpose of Bill . According to SWRCB, the sponsor of this legislation, "Currently, the Water Boards often are reluctant to fully exercise their authority to investigate and/or clean up water pollution problems that may threaten public health and the environment due to liability concerns. "Under current law, SWRCB can perform, or contract for, the investigation, cleanup, abatement, or remedial work that is required to address waste discharges that have polluted, or threaten to pollute, waters of the State? However, the Water Boards often are reluctant to exert their authority to investigate and/or clean up water pollution problems that may threaten public health or the environment due to liability concerns including: 1) potential liability claims that the Water Boards' actions at a site makes them a responsible party and that their limited actions at a site do not fully protect all affected persons, 2) claims for reimbursement of incidental property damage, or 3) potential trespass actions that may arise due to the Water Boards' investigations or cleanups. Thus, even when the Water Boards are faced with a severe pollution problem and there is no apparent financially viable responsible party, the Water Boards are likely to decline to act due to liability concerns." 2) Penn Mine Case . The liability for SWRCB and the regional boards for their actions in cleaning up toxic waste sites was highlighted in the efforts to control runoff from the Penn Mine. The Penn Mine is an abandoned copper and zinc mine adjacent to the Mokelumne River that operated intermittently from the 1860s through the 1950s. In the AB 2442 Page 3 1960s, the East Bay Municipal Utility District (EBMUD) acquired part of the Penn Mine property to build the Comanche Reservoir. In 1978, EBMUD and the Central Valley Regional Water Quality Control Board constructed a remediation project in an attempt to reduce the impacts caused by acid mine drainage from the abandoned mine. The Central Valley regional board and EBMUD were subsequently found jointly responsible under the Clean Water Act for the acid mine drainage due to their operation of the remediation project. (Committee To Save Mokelumne River v. East Bay Mun. Utility Dist. (9th Cir. 1993) 13 F.3d 305.) In the appeal of the court order on the Penn Mine case, the court pointed out that unlike the federal Comprehensive Environmental Response, Compensation and Liability Act, which provides a statutory liability exemption, the federal Clean Water Act contains no such exemption. Given the absence of any statutory authority to exempt the Board or District from liability under the Clean Water Act, the district court was correct in establishing state liability of their cleanup activities. While state law cannot provide liability relief from federal requirements, there would still be liability under federal law for cleanups that result in unauthorized discharges to surface water bodies that are covered under the Clean Water Act (such as in the case of Penn Mine). However, there are waters that are not protected under the Clean Water Act but which are protected under Porter-Cologne, such as groundwater. In those cases, there would only be potential liability under state law for actions that we may take to clean up, or partially clean up, water contamination. 3) State Remediation Intervention . SWRCB, regional boards, and DTSC have statutory authority and responsibility for the oversight of remediating contaminated water and land in California. The boards or department generally enter into a cleanup and abatement order with RPs to require the RP to conduct or contract for the cleanup of the contaminated site. When there is not a viable RP or the RP is found unable to pay for the remedial action, contaminated brownfield sites AB 2442 Page 4 languish potentially causing economic, environmental and public health harm. As funds are available, and sites are identified that are in need of state intervention, the state's cleanup agencies (DTSC, SWRCB and regional boards) investigate and cleanup contaminated sites to prevent further environmental and human health harm. An example of this could be contamination of water by dry cleaning solvents. The primary solvent used in dry cleaning is Perchloroethylene (Perc). Perc can get into the air, water and ground during the cleaning, purification, and waste disposal phases of dry cleaning. Perc can seep through the ground and contaminate surface water, groundwater, and potentially drinking water. A small amount of perc can contaminate a large amount of water and people can be exposed by drinking or using the water. Long-term exposure to perc can pose a potential human health hazard to reproduction and development, and to the kidney, liver, immune and hematologic systems, as well as the human nervous system. The remediation of this type of contamination is often costly and has the potential to do significant damage to groundwater plumes if left unaddressed. In this case, a regional board may deem this cleanup such a priority that the regional board will conduct the remedial action. However, under current law SWRCB and the regional board cite potential liability as an RP, under Porter-Cologne, as a reason to not undergo such a cleanup. Because SWRCB and the regional boards, unlike DTSC, do not have clear, explicit statutory liability protection, the boards see the opportunity for litigation against the state as an impediment to intervening. Recognizing the value in having government agencies ensure that brownfield sites are remediated, and because the agencies are not responsible for causing the contamination, but rather are attempting to remedy the problem, the Legislature has provided DTSC and local governments (under the Polanco Act) to enjoy broad liability immunity when initiating or conducting a cleanup of a brownfield. AB 2442 Page 5 This bill would provide SWRCB and regional boards with explicit protection from civil liability related to investigating and cleaning up water pollution, by removing a barrier in current law that deters the water boards from taking actions to investigate, prevent, or clean up pollution. 4) Previous Legislation . AB 440 (Gatto), Chapter 588, Statutes of 2013, amends the Polanco Act to authorize local governments to investigate and cleanup a release of hazardous materials in a blighted area, as determined by the local agency, and provides immunity from further liability to the local agency and any person who enters into an agreement with that local agency to develop the property as well as future property owners. 5) Double Referral to Senate Judiciary Committee . If this measure is approved by the Senate Environmental Quality Committee, the do pass motion must include the action to re-refer the bill to the Senate Judiciary Committee. SOURCE : State Water Resources Control Board SUPPORT : None on file OPPOSITION : None on file