BILL NUMBER: SB 658 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 11, 2013
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
Section 8 of the Orange County Water District Act (Chapter 924
of the Statutes of 1933) , relating to water quality ,
and declaring the urgency thereof, to take effect immediately .
LEGISLATIVE COUNSEL'S DIGEST
SB 658, as amended, Correa. Water quality: cleanup and
abatement orders. Orange County Water District Act:
investigation, cleanup, and liability.
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.
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.
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.
This bill would declare that it is to take effect immediately as
an urgency statute.
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 2/3 . Appropriation:
no. Fiscal committee: no. State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. 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.
SEC. 2. Section 8 of the Orange County
Water District Act (Chapter 924 of the Statutes of 1933),
as added by Section 4 of Chapter 802 of the Statutes of 1989, is
amended to read:
Sec. 8. (a) The district may conduct any investigations
investigation of the quality of the surface and
groundwaters within the district which that
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
investigation cleanup, abatement, or remedial work required
under the circumstances which that , 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 any other another
governmental agency.
(c) If, pursuant to subdivision (b), the
any contamination or pollution is investigated,
cleaned up up, or contained, the
effects thereof of the contamination or
pollution 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 investigating, cleaning up
up, 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 attorneys' attorney's
fees, shall be recoverable in a civil action by, and paid to,
the district. In any such this action,
the necessity for the investigation, 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.
(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.
SEC. 3. 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:
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.
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.