Senate Bill No. 658

Introduced by Senator Correa

(Coauthor: Senator Wyland)

(Coauthors: Assembly Members Hagman, Harkey, Mansoor, and Wagner)

February 22, 2013

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

LEGISLATIVE COUNSEL’S DIGEST

SB 658, as introduced, Correa. Water quality: cleanup and abatement orders.

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 an 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. The act authorizes a regional water quality control board to expend available money to perform any cleanup, abatement, or remedial work required under those circumstances, and provides for the recovery of costs associated with cleanup, abatement, and remedial actions.

This bill would make technical, nonsubstantive changes to these provisions.

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

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

SECTION 1.  

Section 13304 of the Water Code is amended to
read:

13304.  

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

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

(2) The regional board may perform the work itself, or with the
cooperation of any other governmental agency, and may use rented
tools or equipment, either with operators furnished or unoperated.
Notwithstanding any other begin delete provisions of end delete law, the regional board
may enter into oral contracts for the work, and the contracts,
whether written or oral, may include provisions for equipment
rental and in addition the furnishing of labor and materials
necessary to accomplish the work. The contracts are not subject
to approval by the Department of General Services.

(3) The regional board shall be permitted reasonable access to
the affected property as necessary to perform any cleanup,
abatement, or other remedial work. The access shall be obtained
with the consent of the owner or possessor of the property or, if
the consent is withheld, with a warrant duly issued pursuant to the
procedure described in Title 13 (commencing with Section
1822.50) of Part 3 of the Code of Civil Procedure. However, in
the event of an emergency affecting public health or safety, the
regional board may enter the property without consent or the
issuance of a warrant.

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

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

(2) The amount of the costs constitutes a lien on the affected
property upon service of a copy of the notice of lien on the owner
and upon the recordation of a notice of lien, that identifies the
property on which the condition was abated, the amount of the
lien, and the owner of record of the property, in the office of the
county recorder of the county in which the property is located.
Upon recordation, the lien has the same force, effect, and priority
as a judgment lien, except that it attaches only to the property
posted and described in the notice of lien, and shall continue for
10 years from the time of the recording of the notice, unless sooner
released or otherwise discharged. Not later than 45 days after
receiving a notice of lien, the owner may petition the court for an
order releasing the property from the lien or reducing the amount
of the lien. In this court action, the governmental agency that
incurred the cleanup costs shall establish that the costs were
reasonable and necessary. The lien may be foreclosed by an action
brought by the state board on behalf of the regional board for a
money judgment. Money recovered by a judgment in favor of the
state board shall be deposited in the State Water Pollution Cleanup
and Abatement Account.

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

(e)  begin delete “Threaten,” for end delete begin insert For end insert purposes of this section, begin insert “threaten” end insert
means a condition creating a substantial probability of harm, when
the probability and potential extent of harm make it reasonably
necessary to take immediate action to prevent, reduce, or mitigate
damages to persons, property, or natural resources.

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

(g) (1)  begin delete Any end delete begin insert A end insert public water supplier or private well owner
receiving replacement water by reason of an order issued pursuant
to subdivision (a), or begin delete any end delete begin insert a end insert person or entity begin delete who end delete begin insert that end insert is ordered to
provide replacement water pursuant to subdivision (a), may request
nonbinding mediation of all replacement water claims.

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

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

(4) A regional board or the state board is not required to
participate in begin delete any end delete nonbinding mediation requested pursuant to
paragraph (1).

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

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

(i)  begin delete A end delete begin insert For purposes of this section, end insert “water replacement plan”
means a plan pursuant to which the discharger will provide
replacement water in accordance with a cleanup and abatement
order.

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

(k)  begin delete Nothing in this section limits end delete begin insert This section does not limit end insert the
authority of any state agency under any other law or regulation to
enforce or administer any cleanup or abatement activity.

(l) The Legislature declares that the amendments made to
subdivision (a) of this section by Senate Bill 1004 of the 2003-04
Regular Session do not constitute a change in, but are declaratory
of, existing law.