Amended in Senate April 11, 2013

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 begin delete Section 13304 of the Water Code end delete begin insert Section 8 of the Orange County Water District Act (Chapter 924 of the Statutes of 1933) end insert , relating to water quality begin insert , and declaring the urgency thereof, to take effect immediately end insert .

LEGISLATIVE COUNSEL’S DIGEST

SB 658, as amended, Correa. begin delete Water quality: cleanup and abatement orders. end delete begin insert Orange County Water District Act: investigation, cleanup, and liability. end insert

begin insert

Existing law, the Municipal Water District Law of 1911, authorizes the formation of a municipal water district to acquire and sell water, and specifies the powers and purposes of a municipal water district. The Municipal Water District of Orange County is a district established pursuant to that law.

end insert begin insert

The Orange County Water District Act establishes the Orange County Water District, consisting of specified lands in the County of Orange, including the Cities of Anaheim, Fullerton, and Santa Ana. The act authorizes the district to investigate the quality of the surface and groundwaters within the district to determine whether the waters are contaminated or polluted and authorizes the district to expend funds to perform any cleanup, abatement, or remedial work to prevent, abate, or contain the contamination of, or pollution to, the surface or groundwaters of the district. The act requires the person causing or threatening to cause the contamination or pollution to be liable to the district for reasonable costs actually incurred in cleaning up or containing the contamination or pollution, abating the effects of the contamination or pollution, or taking other remedial action.

end insert begin insert

This bill would require the person also to be liable for the costs actually incurred in investigating the contamination or pollution. The bill would provide that these remedies are in addition to all other legal and equitable remedies available to the water district, including declaratory relief.

end insert begin insert

This bill would declare that it is to take effect immediately as an urgency statute.

end insert begin delete

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.

end delete begin delete

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

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Vote:  begin delete majority end delete begin insert ²⁄₃ end insert . Appropriation: no. Fiscal committee: no. State-mandated local program: no.

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

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begin insert SECTION 1. end insert   

end insert begin insert

The Legislature finds and declares that, in adding
Section 8 to the Orange County Water District Act in 1989, the
Legislature intended that (1) the costs incurred by the district in
conducting investigations to study, monitor, and evaluate the cause,
and the nature and extent of any existing or threatened
contamination, would be part of the cleanup, abatement, and
remedial costs recoverable against the persons causing, or
threatening to cause, contamination of the surface or groundwaters
within the district, and (2) the district would be entitled to
commence a civil action against, and recover damages from, the
persons causing, or threatening to cause, the contamination,
investigation, cleanup, abatement, and remedial costs incurred,
or to be incurred, by the district at the time the liability of the
persons was determined in litigation, regardless of whether all
investigative, cleanup, abatement, and remedial work was
completed by that time. The Legislature further finds and declares
that this act is declaratory of existing law.

end insert

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 8 of the end insert begin insert Orange County Water District Act end insert
begin insert (Chapter 924 of the Statutes of 1933), as added by Section 4 of
Chapter 802 of the Statutes of 1989, is amended to read: end insert

Sec. 8.  

(a) The district may conduct any begin delete investigations end delete
begin insert investigation end insert of the quality of the surface and groundwaters within
the district begin delete which end delete begin insert that end insert the district determines to be necessary and
appropriate to determine whether those waters are contaminated
or polluted.

(b) The district may expend available funds to perform any
begin insert investigation end insert cleanup, abatement, or remedial work required under
the circumstances begin delete which end delete begin insert that end insert , in the determination of the board of
directors, is required by the magnitude of the endeavor or the
urgency of prompt action needed to prevent, abate, or contain any
threatened or existing contamination of, or pollution to, the surface
or groundwaters of the district. This action may be taken in default
of, or in addition to, remedial work by the person causing the
contamination or pollution, or other persons. The district may
perform the work itself, by contract, or by or in cooperation with
begin delete any other end delete begin insert another end insert governmental agency.

(c) If, pursuant to subdivision (b), begin delete the end delete begin insert any end insert contamination or
pollution is begin insert investigated, end insert cleaned begin delete up end delete begin insert up, end insert or contained, the effects
begin delete thereof end delete begin insert of the contamination or pollution end insert abated, or in the case of
threatened contamination or pollution, other necessary remedial
action is taken, the person causing or threatening to cause that
contamination or pollution shall be liable to the district to the extent
of the reasonable costs actually incurred in begin insert investigating, end insert cleaning
begin delete up end delete begin insert up, end insert or containing the contamination or pollution, abating the
effects of the contamination or pollution, or taking other remedial
action. The amount of those costs, together with court costs and
reasonable begin delete attorneys’ end delete begin insert attorney’s end insert fees, shall be recoverable in a
civil action by, and paid to, the district. In begin delete any such end delete begin insert this end insert action,
the necessity for the begin insert investigation, end insert cleanup, containment,
abatement, or remedial work, and the reasonableness of the costs
incurred therewith, shall be presumed, and the defendant shall
have the burden of proving that the work was not necessary, and
the costs not reasonable.

begin insert

(d) The remedies provided under this section are in addition to
all other legal or equitable remedies available to the district under
statute or common law, including declaratory relief regarding
liability for the district’s future costs.

end insert

begin insert

begin insert SEC. 3. end insert   

end insert begin insert

This act is an urgency statute necessary for the
immediate preservation of the public peace, health, or safety within
the meaning of Article IV of the Constitution and shall go into
immediate effect. The facts constituting the necessity are:

end insert begin insert

In order to ensure that the Orange County Water District may,
at the earliest possible opportunity, investigate, clean up, and
remediate groundwater contamination that affects the quality of
drinking water resources of approximately 2,400,000 Orange
County residents, it is necessary that this act take effect
immediately.

end insert

begin delete

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 a 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 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 state board’s 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) For purposes of this section, “threaten” 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) A public water supplier or private well owner receiving
replacement water by reason of an order issued pursuant to
subdivision (a), or a person or entity that 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 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) For purposes of this section, “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) This section does not limit 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.

end delete