BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015 - 2016 Regular Session
SB 385 (Hueso)
Version: April 7, 2015
Hearing Date: May 5, 2015
Fiscal: Yes
Urgency: Yes
TH
SUBJECT
Primary Drinking Water Standards: Hexavalent Chromium:
Compliance Plan
DESCRIPTION
This bill would authorize the State Water Resources Control
Board (State Board) to grant a public water system a period of
time to achieve compliance with drinking water standards for
hexavalent chromium, not to extend beyond January 1, 2020. To
qualify, a public water system would be required to prepare and
submit a compliance plan to the State Board for approval. This
bill would require a public water system to provide specified
notices to consumers regarding the compliance plan, as well as
status reports to the State Board. This bill would also
prohibit a public water system from being deemed in violation of
the primary drinking water standard for hexavalent chromium
while implementing an approved compliance plan or while state
board action on its proposed and submitted compliance plan is
pending.
BACKGROUND
Hexavalent chromium -- also known as Chrome VI -- is an oxidized
state of the element Chromium that naturally occurs in the water
in some areas of California. Geochemical research has concluded
that the natural concentration of Chrome VI in certain
groundwater sources exceeds 50 micrograms per litre. (See John
Izbicki et. al., Chromium, Chromium Isotopes and Selected Trace
Elements, Western Mojave Desert, USA, Applied Geochemistry 23
(2008) 1325-1352.) Other areas experience high Chrome VI
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groundwater concentrations due to anthropogenic (human)
activities. (Id.) The California Department of Public Health
(CDPH) has concluded that "[t]he presence of hexavalent chromium
found in drinking water sources is attributed to both its
natural occurrence and industrial use," and that "[n]aturally
occurring hexavalent chromium may be present in groundwater at
levels up to, and in some cases exceeding, 100 [micrograms per
litre]." (CDPH, Hexavalent Chromium MCL Initial Statement of
Reasons
[as of Apr. 30, 2015].) While Chrome VI has been known
to cause certain cancers when inhaled, recent research from the
National Toxicology Program demonstrates that the compound is
also carcinogenic in drinking water. (Scientific American,
Chromium in Drinking Water Causes Cancer
[as of Apr. 30, 2015].)
California began regulating the content of chromium in drinking
water in 1977 when it adopted the 50 micrograms per litre
standard established by the Environmental Protection Agency
(EPA) in its National Interim Drinking Water Standard. In 2000,
the Legislature began re-examining this standard in light of
increased public awareness and concern about hexavalent
chromium. SB 2127 (Schiff, Ch. 868, Stats. 2000) directed the
Department of Health Services to measure the levels of
hexavalent chromium in the drinking water drawn from the San
Fernando Basin aquifer, and to assess the exposures and risks to
the public due to the levels of hexavalent chromium present.
The following year, the Legislature passed SB 351 (Ortiz, Ch.
602, Stats. 2001), which directed the Department of Health
Services to establish a primary drinking water standard for
hexavalent chromium on or before January 1, 2004. After years
of study and consultation, in July 2011 the Office of
Environmental Health Hazard Assessment set a public health goal
(PHG) for hexavalent chromium in drinking water at 0.02
micrograms per litre, which represents a de minimis lifetime
cancer risk from exposure to hexavalent chromium in drinking
water. (CDPH, Hexavalent Chromium MCL Initial Statement of
Reasons.) Using this PHG, in April 2014 the Department of
Public Health (formerly Health Services) set a primary drinking
water standard for hexavalent chromium at 10 micrograms per
litre, which became effective on July 1, 2014. This more
stringent standard may require some public water systems to
design, build, and obtain financing for new water filtration
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equipment.
In order to give water systems time to construct the needed
infrastructure, this bill would authorize the State Board to
grant a period of time to achieve compliance with the new
primary drinking water standard for hexavalent chromium if
certain criteria are met. This bill would also provide that a
public water system shall not be deemed in violation of the
primary drinking water standard for hexavalent chromium while
implementing an approved compliance plan, or while a proposed
and submitted compliance plan is pending with the State Board.
CHANGES TO EXISTING LAW
Existing law declares it to be the established policy of the
state that every human being has the right to safe, clean,
affordable, and accessible water adequate for human consumption,
cooking, and sanitary purposes. (Wat. Code Sec. 106.3.)
Existing law , the California Safe Drinking Water Act, declares
that every citizen of California has the right to pure and safe
drinking water. (Health & Saf. Code Sec. 116270.)
Existing law directs the State Water Resources Control Board
(State Board) to adopt primary drinking water standards for
contaminants in drinking water that are based upon set criteria,
and specifies that such standards shall not be less stringent
than the national primary drinking water standards adopted by
the United States Environmental Protection Agency. Existing law
states that each primary drinking water standard adopted shall
be set at a level that is as close as feasible to a
corresponding public health goal placing primary emphasis on the
protection of public health, as specified. (Health & Saf. Code
Sec. 116365.)
Existing law defines "primary drinking water standards" to mean
the maximum levels of contaminants that, in the judgment of the
State Board, may have an adverse effect on the health of
persons. (Health & Saf. Code Sec. 116275.)
Existing law provides that the State Board shall commence the
process for adopting a primary drinking water standard for
hexavalent chromium that complies with the criteria established
under Section 116365, and that it shall establish a primary
drinking water standard for hexavalent chromium on or before
January 1, 2004. (Health & Saf. Code Sec. 116365.5.)
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Existing law provides that any person who owns a public water
system shall, among other things, ensure that the system
complies with primary and secondary drinking water standards,
and provides a reliable and adequate supply of pure, wholesome,
healthful, and potable water. (Health & Saf. Code Sec. 116555.)
Existing law provides that the State Board shall be responsible
for ensuring that all public water systems are operated in
compliance with the California Safe Drinking Water Act and any
regulations adopted thereunder. (Health & Saf. Code Sec.
116325.)
Existing law provides that anything done, maintained, or
suffered as a result of failure to comply with any primary
drinking water standard is a public nuisance dangerous to
health, and may be enjoined or summarily abated in the manner
provided by law. (Health & Saf. Code Sec. 116670.)
Existing law provides that the State Board may exempt any public
water system from any maximum contaminant level or treatment
technique requirement if it finds, among other things, that the
granting of the exemption will not result in an unreasonable
risk to health. (Health & Saf. Code Sec. 116425.)
Existing law provides that the State Board may grant a variance
or variances from primary drinking water standards to a public
water system, provided any variance granted conforms to the
requirements established under the federal Safe Drinking Water
Act. (Health & Saf. Code Sec. 116430.)
This bill states that at the request of any public water system
that prepares and submits a compliance plan to the State Board,
the board may grant a period of time to achieve compliance with
the primary drinking water standard for hexavalent chromium by
approving the compliance plan. This bill provides that a
compliance plan must provide:
a compelling reason why it is not feasible for the system to
presently comply with the primary drinking water standard for
hexavalent chromium;
a summary of the public water system's review of available
funding sources, the best available technology or technologies
for treatment, and other options to achieve and maintain
compliance with the primary drinking water standard for
hexavalent chromium by the earliest feasible date; and
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a description of the actions the public water system is taking
and will take by milestone dates to comply with the primary
drinking water standard for hexavalent chromium by the
earliest feasible date, which shall not extend beyond January
1, 2020.
This bill states that the State Board may approve a compliance
plan or provide written comments on the compliance plan to the
public water system, and upon review of a compliance plan and
based on the public water system's specific circumstances
identified in the plan, require compliance with the primary
drinking water standard for hexavalent chromium before January
1, 2020. This bill provides that the State Board, at any time,
may direct revisions to a compliance plan or disapprove a
compliance plan if the state board determines that the
compliance plan is insufficient.
This bill provides that a public water system shall provide
written notice regarding the compliance plan to its customers at
least two times per year, as specified. The written notice
shall state:
that the public water system is implementing the compliance
plan that has been approved by the state board and that
demonstrates the public water system is taking the needed
feasible actions to comply with the primary drinking water
standard for hexavalent chromium; and
that the public water system's customers have alternative
drinking water and that the public water system may provide
information on that drinking water.
This bill states that the public water system shall submit
written status reports to the State Board, as specified, that
update the status of actions specified in the board-approved
compliance plan and that specify any changes to the compliance
plan needed to achieve compliance with the primary drinking
water standard for hexavalent chromium by the earliest feasible
date. This bill provides that the State Board, at any time, may
disapprove a written status report if the board determines that
the written status report fails to demonstrate that the public
water system is complying with the approved compliance plan by
the milestone dates.
This bill states that a public water system shall not be deemed
in violation of the primary drinking water standard for
hexavalent chromium while implementing an approved compliance
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plan, or while a public water system's proposed and submitted
compliance plan is pending before the State Board.
COMMENT
1.Stated need for the bill
The author writes:
California's drinking water standard for chromium-6 took
effect on July 1, 2014. The first of its kind in the nation,
California's standard established a maximum contaminant level
(MCL) of 10 parts per billion (ppb) for chromium-6 in drinking
water. Chromium-6 is a chemical compound that can occur
naturally in the environment or be introduced from industrial
activities such as corrosion control or metal plating.
For some public water systems, construction of extensive new
treatment facilities is needed to comply with the chromium-6
MCL. The regulation establishing the standard required public
water systems to begin monitoring for chromium-6 by Jan. 1,
2015, just six months after the regulation went into effect.
Many affected [water] systems will be deemed in violation of
the new standard in 2015 even though it was not feasible to
install appropriate treatment systems to comply with the MCL
within the time period provided. The steps involved - from
designing treatment systems to securing financing to building
and testing new treatment facilities - can require up to five
years or more and cost millions of dollars.
Some water systems have been working to identify and test
cost-effective treatment technologies for chromium-6. But
until the MCL was finalized in July 2014, it was not possible
to know how much treatment, if any, would be required for
individual systems affected by chromium-6. Some systems may
not have needed additional treatment facilities if the
standard had been set at a higher number. For systems that do
need to install treatment, land may need to [be] acquired,
water rates may need to be raised, and financing may need to
be secured before construction of facilities can even begin.
These are significant steps that take time.
SB 385 would not change the requirement to comply with the
standard or delay when compliance is achieved. Affected water
systems will take the same steps toward compliance with the
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MCL that they would take without SB 385. The bill would
simply provide a limited period of time for a water system to
work toward achieving compliance without being deemed in
violation as long as strict safeguards are met. Among these
safeguard provisions is a requirement that water customers be
informed of the compliance plan and progress toward
compliance, as well as [be] provided with information about
another source of drinking water until compliance is reached.
2.Delayed Compliance Period
This bill would authorize the State Water Resources Control
Board (State Board) to grant public water systems additional
time to comply with the new 10 micrograms per litre primary
drinking water standard for hexavalent chromium. The bill would
require public water systems seeking extra time to submit an
application to the State Board that provides a compelling reason
why the system cannot presently comply with the new standard,
along with a compliance plan detaining how the system will come
into compliance by the earliest feasible date. The bill
specifies that a public water system granted additional time
must submit periodic status reports to the State Board for its
review and approval, that additional time granted shall not
extend beyond January 1, 2020, and that specified notices must
be sent to the water system's consumers regarding compliance
efforts and the availability of alternative drinking water.
This bill would provide that a public water system shall not be
deemed in violation of the primary drinking water standard for
hexavalent chromium while implementing an approved compliance
plan, or while such a plan is pending review by the State Board.
Several stakeholders have stated that they need this additional
compliance period to build the infrastructure necessary to meet
the new drinking water standard. According to the Indio Water
Authority:
[t]hirteen of [its] twenty . . . active wells have chromium-6
levels above the new MCL regulation. Building facilities to
treat these wells will cost approximately $40,000,000 with
annual operation and maintenance costs of $2,000,000. The new
chromium-6 MCL regulation was announced April 2014 and went
into effect less than three months later, which did not
provide Indio Water Authority adequate time to construct the
necessary treatment facilities. . . . Our community will
significantly benefit from the passage of SB 385 by providing
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the necessary time to design and construct chromium-6
treatment at the thirteen well locations.
3.Limitations on Civil Actions
Existing law provides a number of remedies for parties harmed by
a public water system's failure to supply water that meets
California's primary drinking water standards. The Safe
Drinking Water Act (Act) authorizes both the State Board and
county public health officers to bring administrative
enforcement actions against public water systems for violations
of the Act, and allows for remedies ranging from permit
revocation to citations and injunctive relief. (See Health &
Saf. Code Sec. 116650 et seq.) The Act also provides that
"anything done, maintained, or suffered as a result of failure
to comply with any primary drinking water standard is a public
nuisance dangerous to health, and may be enjoined or summarily
abated in the manner provided by law," including by entities
other than the State Board and county public health officers.
(Health & Saf. Code Sec. 116670.) Code of Civil Procedure
Section 731, for example, authorizes a district attorney, county
counsel, or city attorney of any county or city in which a
public nuisance exists to bring an abatement action on behalf of
the people of the State of California, including public
nuisances caused by the failure of a public water system to meet
primary drinking water standards. In the event public officials
fail to enforce compliance with primary drinking water
standards, Code of Civil Procedure Section 1085 empowers private
citizens to seek a writ of mandate from a court directing the
State Board or another responsible public entity to enforce
compliance with the standard. Additionally, the Act expressly
provides that its remedies are "cumulative and shall not be
construed as restricting any remedy, provisional or otherwise,
provided by law for the benefit of any party, and no judgment
under this chapter shall preclude any party from obtaining
additional relief based upon the same facts." (Health & Saf.
Code Sec. 116745.) Consequently, private litigants may be able
to state a cause of action against a public water system based
on its failure to adhere to a primary drinking water standard
under a number of other legal theories.
This bill would expressly provide that a public water system
shall not be deemed in violation of the primary drinking water
standard for hexavalent chromium while implementing a compliance
plan approved by the State Board. This provision in the bill
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would necessarily eliminate some of the remedies both public and
private actors have under existing law to force compliance with
the new drinking water standard. The policy question for this
Committee to consider is whether placing such limitations on
existing remedies is appropriate while water systems design and
build treatment infrastructure to meet the new standard. Staff
notes that, while California has not previously authorized
additional time to meet new primary drinking water standards
under state law, the federal Safe Drinking Water Act does allow
for the Administrator of the Environmental Protection Agency to
delay implementation of new national primary drinking water
regulations up to five years after their promulgation if he or
she "determines that additional time is necessary for capital
improvements." (See 42 U.S.C. Sec. 300g-1.)
4.Notice to Consumers
This bill provides that if the State Board grants a public water
system a period of time to achieve compliance with drinking
water standards for hexavalent chromium, it must provide
specified written notices regarding its compliance plan to its
customers at least two times per year. The bill states that
these notices shall be translated into appropriate languages as
required under the Safe Drinking Water Act, and provides that
the notices must include information stating that the public
water system is implementing a compliance plan that has been
approved by the State Board, as well as information regarding
how to obtain alternative drinking water. However, the bill
does not expressly require these notices to include any
information about hexavalent chromium or the potential health
impacts that may result from consuming water containing
hexavalent chromium. Other sections of the Safe Drinking Water
Act requiring consumer notification, such as when a public water
system fails to comply with a primary drinking water standard,
generally provide that such notifications "shall include
identification of the contaminant, information on possible
effects of the contaminant on human health, and information on
specific measures that should be taken by persons or populations
who might be more acutely affected than the general population."
(Health & Saf. Code Sec. 116450.) Even if a public water
system operating under a compliance plan pursuant to this bill
would not be deemed out of compliance with the hexavalent
chromium primary drinking water standard, as a matter of public
policy, it is arguably preferable to ensure that consumers are
fully informed about the quality of their drinking water,
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including the potential health impacts of consuming hexavalent
chromium.
To ensure that consumers are well informed about the quality of
their drinking water while a hexavalent chromium compliance plan
is in place, the author offers the following amendment:
On page 4, between lines 35 and 36, insert "(3) Basic
information describing hexavalent chromium, including the
quantity found in drinking water provided by the public water
system, its possible effects on human health, and information
on specific measures, if any, that should be taken by persons
or populations who might be more acutely affected than the
general population."
Support : California Municipal Utilities Association; California
Special Districts Association; California Water Association;
Cathedral City; City of Indio; City of Rancho Mirage; City of
Watsonville; Coachella Valley Association of Governments;
Coachella Valley Water District; Consumer Attorneys of
California; Desert Water Agency; Hidden Valley Lake Community
Services District; Indio Water Authority; Mission Springs Water
District; Rancho Marcelino Water & Service Company; Regional
Water Authority; Rio Linda/Elverta Community Water District;
Sacramento Suburban Water District; Santa Ynez River Water
Conservation District; Soquel Creek Water District; Upper San
Gabriel Valley Municipal Water District
Opposition : None Known
HISTORY
Source : Association of California Water Agencies
Related Pending Legislation : None Known
Prior Legislation :
SB 351 (Ortiz, Ch. 602, Stats. 2001) directed the Department of
Health Services to establish a primary drinking water standard
for hexavalent chromium on or before January 1, 2004.
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SB 472 (Soto, 2001) would have required the State Department of
Health Services to determine the levels of hexavalent chromium
in the drinking water supplied by the public water systems in
the Chino Basin aquifer and, in consultation with the Office of
Environmental Health Hazard Assessment, assess the exposures and
risks to the public due to the levels of hexavalent chromium
determined. This bill died on the Senate Appropriations
Committee Suspense File.
SB 1201 (Romero, 2001) would have required the State Department
of Health Services to determine the levels of hexavalent
chromium in the drinking water supplied by the public water
systems in the San Gabriel Basin aquifer and, in consultation
with the Office of Environmental Health Hazard Assessment,
assess the exposures and risks to the public due to the levels
of hexavalent chromium determined. This bill was set for
hearing in the Senate Environmental Quality Committee, but the
hearing was cancelled at the author's request.
AB 393 (Romero, 2001) would have required the State Department
of Health Services to determine the levels of hexavalent
chromium in the drinking water supplied by the public water
systems in the San Gabriel Basin aquifer and, in consultation
with the Office of Environmental Health Hazard Assessment,
assess the exposures and risks to the public due to the levels
of hexavalent chromium determined. This bill was referred to
the Assembly Environmental Safety and Toxic Materials Committee,
but was not set for hearing.
AB 1646 (Richman, 2001) would have required the State Department
of Health Services to reduce the maximum allowable limit of
Chromium VI in drinking water to 0.2 parts per billion. This
bill was referred to the Assembly Environmental Safety and Toxic
Materials Committee, but was not set for hearing.
SB 2127 (Schiff, Ch. 868, Stats. 2000) required the State
Department of Health Services to determine the levels of
hexavalent chromium in the drinking water supplied by the public
water systems in the San Fernando Basin aquifer and, in
consultation with the Office of Environmental Health Hazard
Assessment, assess the exposures and risks to the public due to
the levels of hexavalent chromium determined.
Prior Vote : Senate Environmental Quality Committee (Ayes 7,
Noes 0)
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