BILL ANALYSIS �
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|SENATE RULES COMMITTEE | SB 658|
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THIRD READING
Bill No: SB 658
Author: Correa (D), et al.
Amended: 4/11/13
Vote: 27 - Urgency
SENATE ENVIRONMENTAL QUALITY COMMITTEE : 6-2, 5/1/13
AYES: Hill, Corbett, Hancock, Jackson, Leno, Pavley
NOES: Gaines, Fuller
NO VOTE RECORDED: Calderon
SUBJECT : Orange County Water District Act: investigation,
cleanup, and liability
SOURCE : Orange County Water District
DIGEST : This bill requires the person responsible for
contaminating or polluting the surface or groundwaters of the
Orange County Water District (OCWD), to be liable for the costs
actually incurred in investigating the contamination or
pollution.
ANALYSIS : Existing law, under the Orange County Water
District Act (OCWD Act):
1. Establishes the OCWD, consisting of specified lands in the
County of Orange, including the Cities of Anaheim, Fullerton,
and Santa Ana.
2. Authorizes the OCWD to investigate the quality of the surface
and groundwaters within the OCWD to determine whether the
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waters are contaminated or polluted and authorizes the OCWD
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 OCWD.
3. Requires the person causing or threatening to cause the
contamination or pollution to be liable to the OCWD 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:
1. Requires the person responsible for contaminating or
polluting the surface or groundwater's of the OCWD, to be
liable for the costs actually incurred in investigating the
contamination or pollution, in addition to existing 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.
2. Provides that these remedies are in addition to all other
legal and equitable remedies available to OCWD, including
declaratory relief.
Background
OCWD was formed in 1933 by the Legislature enactment of the OCWD
Act to protect Orange County's (OC) rights to water in the Santa
Ana River. OCWD's primary responsibility is managing the vast
groundwater basin under northern and central OC that supplies
water to more than 20 cities and water agencies, serving more
than 2.3 million OC residents.
OCWD primarily recharges the basin with water from the Santa Ana
River and, to a lesser extent, with imported water purchased
from the Metropolitan Water District of Southern California.
OCWD currently holds rights to all Santa Ana River flows
reaching Prado Dam. Water enters the groundwater basin via
settling or percolation ponds in the Cities of Anaheim and
Orange. Behind Prado Dam (constructed and owned by the United
States Army Corps of Engineers for flood prevention), OCWD owns
2,400 acres in Riverside County, which the OCWD uses for water
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conservation, water quality improvement, and environmental
enhancement.
OCWD monitors the groundwater taken out each year to ensure that
the basin is not overdrawn, refills the basin, and carries out
an assessment program to pay for operating expenses and the cost
of imported replenishment water. The groundwater basin holds
millions of acre-feet of water (an acre-foot satisfies the needs
of two families for one year). The groundwater basin provides
more than half of all water used within the OCWD. Protection,
safety and enhancement of groundwater are OCWD's highest
priorities. With one of the most sophisticated groundwater
protection programs in the country, OCWD uses more than 700
wells providing more than 1,400 sampling points-from which OCWD
takes more than 18,000 water samples and conducts more than
350,000 analyses every year. OCWD's monitoring program looks for
more than 330 constituents-far more than the 122 required by the
regulatory agencies.
In 1989, Section 8 of the OCWD Act was amended to allow OCWD to
recover from parties, who contaminate groundwater, the OCWD's
costs in remediating contamination.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
SUPPORT : (Verified 5/7/13)
Orange County Water District (source)
Burlington Safety Laboratory of California, Inc.
Cities of Buena Park, Garden Grove, Orange, and Santa Ana
East Orange County Water District
Halsted and Hoggan, Inc.
Irvine Ranch Water District
Mesa Water District
Municipal Water District of Orange County
Orange County Coastkeeper
Pacific Surveys, LLC
TAB AnswerNetwork
The Otter Project
Vision Marking Devices
Yorba Linda Water District
OPPOSITION : (Verified 5/7/13)
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Anaheim Chamber of Commerce
Barlan Enterprises
Bell Industries
BorgWarner
California Citizens Against Lawsuit Abuse
California Manufacturers and Technology Association
Colonial Engineering
DRSS-I
Fullerton Chamber of Commerce
Inland Empire Utilities Agency
National Association for Industrial and Office Parks
RadioShack Corporation
Sanmina
Soco West, Inc.
Steelcase Inc.
Unisys
ARGUMENTS IN SUPPORT : According to the author's office, in
the first contamination cases pursued under the OCWD Act, judges
have misinterpreted the OCWD Act as excluding investigatory work
from recoverable remedial expenses. State and federal hazardous
waste statutes and remediation professionals consistently regard
investigatory work as a necessary element in the remediation
process.
The author's office states that a recent judicial decision has
also interpreted the OCWD Act as excluding equitable relief to
assign liability for future costs and expenses. As such, OCWD
could be required to wait up to 30 years, until remediation has
been completed, before seeking to recover these costs from
polluters.
The author's office further contends that if OCWD has to wait 30
years before it can even seek cost recovery from polluters, as a
practical matter it will be nearly impossible to hold polluters
liable for the impacts of their contamination. The author's
office believes that after 30 years evidence will have gone
stale, parties will have disappeared, and ultimately rate payers
will be stuck paying the costs related to remediation.
The author's office asserts that the intent of the Legislature,
through its 1989 amendment of the OCWD Act, is clear: OCWD has
the right to recover the full costs of contamination clean-up
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from polluters.
Absent clarifying language by the Legislature to close these
perceived loopholes in existing law, polluters will unjustly
shift the costs of clean-up of their contamination to the
community at-large.
ARGUMENTS IN OPPOSITION : The opposition states:
The District [OCWD] has unsuccessfully sued many businesses
and landowners that never used any pollutants of concern, that
used some chemicals but conducted cleanups of their own
properties under the supervision of an experienced regulatory
agency, or who could not have caused any contamination to the
drinking water aquifer.
In just one case, two businesses were subjected to nine years
of litigation without any evidence that they caused
contamination at a cost of over $200 million. Now the OCWD
wants to amend the OCWD Act in a manner that would rob
businesses of their right to insist that cleanup actions by
OCWD be necessary, cost-effective, and subject to public
scrutiny. Those are the same standards required by the United
States Environmental Protection Agency, regional water quality
control boards, and the California Department of Toxic
Substance Control.
This bill will result in more meritless lawsuits being filed
causing businesses millions of dollars and not providing for
any cleanup of drinking water aquifers.
RM:k 5/8/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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