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 12, 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  
            level found in drinking water provided by the public water  
            system, the maximum contaminant level for hexavalent chromium,  
            and the possible effects of hexavalent chromium on human  
            health as specified in Appendix 64465 D of Article 18 of  
            Chapter 15 of Division 4 of Title 22 of the California Code of  
            Regulations."


           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; Metropolitan Water  
          District of Southern California; Mission Springs Water District;  
          Rancho Marcelino Water & Service Company; Regional Water  
          Authority; Rio Linda/Elverta Community Water District;  
          Sacramento Suburban Water District; San Diego County Water  
          Authority; 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,  







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          Noes 0)

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