BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     SB 385


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          Date of Hearing:  July 7, 2015 


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          SB  
          385 (Hueso) - As Amended June 18, 2015


                                  PROPOSED CONSENT

          SENATE VOTE:  39-0


          SUBJECT:  PRIMARY DRINKING WATER STANDARDS: HEXAVALENT CHROMIUM:  
          COMPLIANCE PLAN


          KEY ISSUE:  SHOULD PUBLIC WATER SYSTEMS BE GRANTED ADDITIONAL  
          TIME BY THE STATE WATER RESOURCES CONTROL BOARD TO MEET THE  
          BOARD'S STANDARD FOR THE MAXIMUM CONTAMINANT LEVEL ALLOWED FOR  
          HEXAVALENT CHROMIUM IN DRINKING WATER, IF THE PUBLIC WATER  
          SYSTEM MAKES A REQUEST AND PROVIDES a PLAN TO THE STATE WATER  
          RESOURCES CONTROL BOARD FOR ACHIEVEING COMPLIANCE WITH THE  
          STANDARD bY NO LATER THAN December 31, 2020?

                                      SYNOPSIS


          This bill allows public water systems to apply to the State  
          Water Resources Control Board (SWRCB) for additional time to  
          meet the compliance standards for monitoring the maximum  
          contaminant level for Hexavalent Chromium.  The SWRCB is  
          responsible for the establishment, regulation and enforcement of  
          "primary drinking water standards." Primary drinking water  








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          standards include all drinking water requirements set forth in  
          the California Safe Drinking Water Act and the regulations  
          adopted by the SWRCB.  The authority for drinking water programs  
          was transferred from the Department of Public Health to the  
          State Water Resources Control Board on July 1, 2014.  Hexavalent  
          Chromium (chromium-6), is an inorganic contaminant that can  
          increase a person's risk of getting cancer which has been  
          detected in public drinking water sources in a large numerous of  
          California counties.  The Maximum Contaminant Level (MCL), set  
          by the U.S. Environmental Protection Agency (EPA) for drinking  
          water quality, is the maximum amount of a substance that is  
          allowed in public drinking systems under the federal Safe  
          Drinking Water Act.  The EPA has not yet set an MCL for  
          chromium-6.  However, the Department of Public Health (DPH)  
          proposed its own maximum level (State MCL) for chromium-6 at  
          0.010 milligram per liter (which is equivalent to 10 parts per  
          billion (ppb)) in August 2013.  The proposed regulation for the  
          State MCL for chromium-6 was approved in May 2014 and became  
          effective on July 1, 2014.  The regulation requires public water  
          systems that are classified as community systems to initiate  
          monitoring for chromium-6 on or before January 1, 2015.  


          Almost every public water system in the state affected by this  
          new State MCL for chromium-6 has expressed a series of concerns  
          about their ability to meet the new State MCL for that  
          contaminant.  One of the first concerns of the agencies is that  
          the six-month time frame between the effective date of the  
          regulation and the compliance date was insufficient for them to  
          establish the required infrastructure needed to perform the  
          initial and subsequent monitoring that the regulation requires.   
          Another concern raised by the public water systems is that until  
          the regulations were approved, there was no way to determine  
          whether or not an individual public water system would be  
          affected by the newly-established State MCL.  Another issue  
          raised was that because there had not previously been a standard  
          in place, the public water systems had no way to determine what  
          their individual system would need to do in order to achieve  
          compliance with a new standard.  The public water systems that  








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          are included in the new monitoring requirements argue that they  
          need an extension of time to design treatment systems, obtain  
          financing, and construct the treatment system, all of which  
          could take up to five years and cost millions of dollars.


          This bill establishes a process for assisting public water  
          systems to achieve compliance with the State MCL chromium-6  
          regulations.  In order to apply for an extension, this bill  
          requires a public water system to submit a compliance plan to  
          the SWRCB.  The SWRCB may approve the plan and grant the request  
          for an extension of time, or return the plan with comments for  
          revisions to the plan.  This bill requires a public water system  
          that has been granted an extension to provide written notice  
          regarding the compliance plan to the persons served by the  
          public water system at least twice per year, and to provide  
          status reports to the SWRCB at the frequency rate that the SWRCB  
          establishes for that individual water system.  When the SWRCB  
          grants an extension, it will require that the public water  
          system achieve compliance with the State MCL at the earliest  
          feasible date, but no extension will be granted for compliance  
          beyond January 1, 2020.  This bill would also prohibit a public  
          water system from being deemed in violation of the State MCL for  
          chromium-6 while implementing an approved compliance plan, or  
          while SWRCB action on its proposed plan is pending.  This bill  
          is sponsored by the Association of California Water Agencies,  
          and supported by numerous water authorities, cities and special  
          districts.  There is no known opposition to the bill.




          SUMMARY:  Allows the State Water Resources Control Board (SWRCB)  
          to extend the compliance period for public water systems to meet  
          the primary standard for maximum contaminant levels for  
          hexavalent chromium in drinking water.  Specifically, this bill:  
           










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          1)Allows a public water system to request an extension of time  
            from SWRCB to achieve compliance with the maximum contaminant  
            level for chromium-6.  The request must include a compliance  
            plan that is prepared and submitted by the public water system  
            and provided to the state water board.


          2)Allows the SWRCB to grant an extension to a request by a  
            public water system by providing written approval of the  
            agency's compliance plan.


          3)Requires the compliance plan to include:


             a)   A compelling reason why it is not feasible for the  
               system to comply with the primary drinking water standard  
               for chromium-6;
             b)   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 chromium-6 by the earliest feasible date; 
             c)   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 chromium-6 by the  
               earliest feasible date, which shall not extend beyond  
               January 1, 2020.


          4)Allows the state water board to approve a compliance plan or  
            provide written comments on the compliance plan to the public  
            water system.  Based on the review of the plan and the public  
            water system's specific circumstances identified in the plan,  
            allows the state water board to require compliance with the  
            primary drinking water standard for chromium-6 at the earliest  
            feasible date, before January 1, 2020. 










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          5)Authorizes the SWRCB to direct revisions to a compliance plan  
            or disapprove a compliance plan if it determines that the  
            compliance plan is insufficient.


          6)Requires that a public water system provides written notice  
            regarding the compliance plan to the persons served by the  
            public water system at least two times per year, as specified.  
             


          7)Requires the written notice to include the following:


             a)   An explanation that the public water system is  
               implementing the compliance plan that has been approved by  
               the SWRCB after finding that the public water system is  
               taking the needed feasible actions to comply with the  
               primary drinking water standard for chromium-6; 
             b)   An explanation that the persons served by the public  
               water system have alternative drinking water and that the  
               public water system may provide information on that  
               drinking water;
             c)   Basic information describing chromium-6, including the  
               level found in the system's drinking water, the maximum  
               contaminant level, and the possible effects of the  
               contaminant on human health.


          8)Requires the public water system to submit written status  
            reports to the SWRCB that update the status of actions in the  
            compliance plan and that specify any changes to the compliance  
            plan needed to achieve compliance by the earliest feasible  
            date.  


          9)Provides that a public water system shall not be deemed in  
            violation of the primary drinking water standard for  
            chromium-6 while implementing an approved compliance plan, or  








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            while a public water system's proposed and submitted  
            compliance plan is pending before the SWRCB.


          10)Establishes that this as an urgency act based on the  
            necessity to provide adequate time to complete drinking water  
            system improvements before these systems are determined to be  
            out of compliance with existing drinking water standards.


          EXISTING LAW:  


          1)Establishes the California Safe Drinking Water Act, which  
            declares that every citizen of California has the right to  
            pure and safe drinking water.  (Health and Safety Code Section  
            116270 et seq.  All subsequent citations refer to the Health  
            and Safety Code, unless otherwise indicated.) 


          2)Directs the SWRCB 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.  (Section  
            116365.)


          3)Defines "primary drinking water standards" to mean the maximum  
            levels of contaminants that, in the judgment of the SWRCB, may  
            have an adverse effect on the health of persons.  (Section  
            116275.)


          4)Provides that the SWRCB commence the process for adopting a  








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            primary drinking water standard for chromium-6 that complies  
            with the criteria established under Section 116365, and that  
            it shall establish a primary drinking water standard for  
            chromium-6 on or before January 1, 2004.  (Section 116365.5.)   



          5)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.  (Section 116555.) 


          6)Provides that the SWRCB shall be responsible for ensuring that  
            all public water systems are operated in compliance with the  
            California Safe Drinking Water Act.  (Section 116325.)


          7)Authorizes the SWRCB to 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.  (Section 116425.) 


          8)Authorizes the SWRCB to 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.   
            (Section 116430.)


          9)Defines Maximum Contaminant Level (MCL) as the maximum  
            permissible level of a contaminant in water which is delivered  
            to any user of a public water system.  (40 C.F.R. Section  
            141.2 (1992).)










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          10)Provides, until July 1, 2016, each public water system that  
            requests an exemption, plan review, variance, or waiver of any  
            applicable requirement, must reimburse the SWRCB for actual  
            costs incurred by the SWRCB in processing the request.   
            (Section 116580.)

          11)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.   
            (Section 116670.)

          12)Provides, effective July 1, 2014, pursuant to SWRCB  
            regulations, the MCL for chromium-6 of 0.010 milligram per  
            liter, equivalent to 10 g/L or 10 parts per billion (ppb).   
            (Cal. Code Regs., tit. 22, Section 64432.) 


          FISCAL EFFECT:  As currently in print this bill is keyed fiscal.


          COMMENTS:  The federal Safe Drinking Water Act of 1974 requires  
          the Environmental Protection Agency (EPA) to set national  
          health-based standards for drinking water.  (42 U.S.C.  
          300f-300j.)  The SWRCB has the responsibility to adopt primary  
          drinking water standards for contaminants in drinking water that  
          must be at least as stringent as the national standards adopted  
          by the EPA.  The standards adopted by the SWRCB must be as close  
          as feasible to a public health goal, placing primary emphasis on  
          the protection of public health.  (Section 116365.)  


          Existing law required the development of a State MCL by the  
          Department of Public Health for chromium-6 by January 2004  
          (Section 116365.5).  Normally, the state standard would be  
          aligned to meet or exceed the federal standard for a MCL as  
          developed by the EPA.  However, the EPA has not yet set a MCL  
          for chromium-6.  Therefore, the California Department of Public  
          Health (CDPH) proposed a State MCL for chromium-6 of 0.010  








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          milligram per liter in August 2013, and submitted the proposed  
          chorium-6 MCL in its' regulations packet to the Office of  
          Administrative Law (OAL) in April 2014.  On June 20, 2014, the  
          Department of Public Health sent a memorandum to all public  
          water systems announcing the new state MCL for chromium-6,  
          effective July 1, 2014.  The memorandum provided a general  
          overview of the new requirements, including the fact that  
          applicable public water systems would be required to initiate  
          monitoring for chromium-6 on or before January 1, 2015.  The  
          regulations for the State MCL for chromium-6 were approved by  
          the OAL and became effective on July 1, 2014, making California  
          the first state to establish its own MCL for chorium-6 in the  
          United States.  January 1, 2015 was the deadline for applicable  
          public water systems to initiate monitoring for chromium-6.  The  
          authority for drinking water programs was transferred from CDPH  
          to the SWRCB on July 1, 2014.   


          Although the EPA has not yet set a federal MCL for chromium-6,  
          on January 11, 2011 the EPA issued a memorandum entitled  
          "Guidance for Public Water Systems on Enhanced Monitoring for  
          Chromium-6 (Hexavalent Chromium) in Drinking Water" to state  
          drinking water agencies, public water system owners and manages,  
          and drinking water program managers in every region in the  
          country.  The EPA memorandum stated that the agency was:


               [P]roviding guidance to all public water systems to see how  
               a system could enhance chromium monitoring through  
               additional sampling and analysis specifically for  
               chromium-6.  The agency strongly encourages water systems  
               to consider the recommendations provided on our website.  



          The impetus for the EPA memorandum was the release of the  
          toxicity studies that were conducted by the National Toxicology  
          Program in 2008.  The EPA concluded that the study indicated  
          that the potential risk to human health from Chromium-6 was  








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          greater than previously thought.  The EPA began a peer review to  
          assess the new health data and stated that it would review the  
          conclusion and other relevant information to determine if a new  
          standard needed to be set for the Safe Drinking Water Act. 


          What is Chromium-6?  Hexavalent chromium, or chromium-6, is an  
          inorganic contaminant that has been found in drinking water in  
          numerous California counties.  According to the EPA's website,  
          chromium-6 is an odorless and tasteless metallic element that  
          can occur naturally or by discharge of dye and paint pigments,  
          wood preservatives, and chrome plating wastes among other  
          sources.   
          (http://water.epa.gov/drink/contaminants/basicinformation/chromiu 
          m.) According to a report by the National Institute of Health,  
          posted on the U.S. Department of Health and Human Services  
          website, there is strong evidence that chromium-6 causes cancer  
          in laboratory animals when it is consumed in drinking water.  A  
          two-year study by the National Toxicology Program showed that  
          animals given chromium-6 developed malignant tumors.   
          (http://www.nih.gov/news/pr/may2007/niehs-16.htm.)  According to  
          Appendix 6445-D of the California Code of Regulations Section  
          64465, entitled Health Effects Language Chart of Inorganic  
          Contaminants, "Some people who drink water containing hexavalent  
          chromium [chromium-6] in excess of the MCL over many years may  
          have an increased risk of getting cancer." 

          California is the First State to Set Monitoring Standards for  
          Chormium-6.  In 2001, the California Department of Public Health  
          (CDPH) adopted a regulation that added chromium-6 to the list of  
          chemicals about which public water systems were required to test  
          and report.  Based on the findings from the tests, reports, and  
          other findings by the CDPH, a new State MCL for chromium-6 was  
          adopted in July 2014.  In that same month, the governor  
          transferred the authority for regulating and enforcing the  
          state's Safe Drinking Water Act from CDPH to the SWRCB.   
          California is the first state to adopt regulations to monitor  
          the MCL for chromium-6.  According to the SWRCB:









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               From 2000-2012, approximately 2,400 sources reported  
               hexavalent chromium at peak concentrations of greater than  
               1.0 ppb, with two-thirds of the peak detections between 1  
               and 5 ppb. A total of 93 sources were reported in excess of  
               the 10 ppb drinking water standard.  This monitoring showed  
               that the presence of hexavalent chromium was more  
               widespread than previously thought, reflecting its natural  
               distribution in water supplies. Since small public water  
               systems with less than 150 connections were not required to  
               perform this monitoring prior to MCL establishment, the  
               number of sources expected to contain detections of  
               hexavalent chromium can be expected to increase.  (State  
               Water Resources Control Board, Safe Drinking Water Plan,  
               June 2015.)

          The regulations requiring public water systems to monitor and  
          ensure that their public drinking water complies with the  
          newly-established State MCL for chorium-6 became effective on  
          July 1, 2014 and were made enforceable for public water systems  
          as of January 1, 2015.  The State MCL for chromium-6 pursuant to  
          SWRCB regulations is 0.010 milligram per liter, equivalent to 10  
          g/L or 10 parts per billion (ppb).  (Cal. Code Regs, tit. 22,  
          Section 64432.)  


          Why Are Public Water Systems Unprepared to Achieve Compliance?   
          Based upon the EPAs 2011 memorandum to public water agencies, as  
          mentioned above, and SWRCB's 2015 Safe Drinking Water Plan  
          (Plan), it appears that the potential danger of chromium-6 in  
          public drinking water is well documented.  According to the 2015  
          Plan, the testing for the presence of chromium-6 conducted from  
          2000 to 2012 revealed a total of 93 sources of chromium-6 that  
          exceed the new State MCL.  It was the results of this monitoring  
          that the SWRCB cites in its 2015 Plan that demonstrated  
          chromium-6 was more widespread than previously suspected.  That  
          same Plan explained that small public water systems with less  
          than 150 connections were not required to monitor their systems  








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          for the presence of chromium-6.  That means that those water  
          systems have no basis to determine whether the water in their  
          water system contain chromium-6 in levels that would exceed the  
          State MCL.  Therefore, it should come as no surprise to the  
          SWRCB that many public water systems are not prepared to comply  
          with the new MCL monitoring requirements and will need  
          additional time to comply.  In addition, the costs of the  
          infrastructure required to achieve compliance and the time it  
          will take to get the infrastructure in place are both  
          substantial.  According to the letters received by the Committee  
          from many of the supporters of this bill, as well as from the  
          sponsor, the costs to achieve compliance will be difficult for  
          many of the local water agencies that are impacted by the State  
          MCL chromium-6 to bear.  



          Need for the Bill.  When the new regulations became effective,  
          many public water systems argued that the six months from July1,  
          2014 to January 1, 2015 was not sufficient to allow for the  
          installation of appropriate treatment systems necessary for them  
          to comply with the new MCL chorium-6 regulations. 

          According to the sponsors of the bill, the Association of  
          California Water Agencies:


               Public water systems are committed to meeting the standard,  
               which is the first of its kind in the nation, but the  
                                                      timeline provided for compliance does not recognize the  
               complex steps water systems must take to achieve the  
               standard. The steps involved - from designing appropriate  
               treatment systems to securing financing to building and  
               testing new treatment facilities - can take up to five  
               years or more and cost millions of dollars.


               For some public water systems, construction of extensive  
               new treatment facilities is needed to comply with the  








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               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.  In some cases, 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.


               SB 385 would provide a time-limited process for a water  
               system to work toward compliance without being deemed in  
               violation as long as strict safeguards are met.


          This bill creates a process for non-complying public water  
          systems to request additional time for compliance from the SWRCB  
          and avoid being in violation of the new standards.


          Process for Extending the Time to Comply.  The SWRCB is  
          authorized, under existing law, to grant variances from primary  
          drinking water standards to a public water system.  (Section  
          116430.)  Under the provisions of this bill, in order to apply  
          for an extension to comply with existing law, a public water  
          system is required to submit a request to the SWRCB with a  
          proposed compliance plan.  The SWRCB is then required to review  
          the plan and either accept the compliance plan as submitted, or  
          provide comments on the proposed plan for the public water  
          system to work through and then resubmit the plan.  When the  
          compliance plan is accepted, the public water system is required  
          to provide written notice regarding the compliance plan, at  
          least twice per year to the persons who are served by the public  
          water system.  The public water system is also required to  
          submit compliance status reports to the SWRCB on a timeline  
          established by the SWRCB for that individual water system.  A  








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          public water system may not be cited for compliance violations  
          while implementing an accepted compliance plan, or while the  
          SWRCB is considering the water system's compliance plan.   
          Extensions may only be granted to those water systems that  
          provide plans to achieve compliance by December 31, 2020.


          Impact on Public Water System Consumers.  The purpose of  
          monitoring a public water system is to determine if there are  
          identifiable contaminants in the water that flows through the  
          system.  If identifiable contaminants are discovered, then the  
          water system must comply with law and regulations that have been  
          established to address the presence of that contaminant to  
          ensure that safe clean drinking water is being provided to the  
          public.  Chromium-6 has been identified as a harmful contaminant  
          in drinking water in the state.  Regulations have been  
          established to ensure that the levels of its presence in  
          drinking water are as low as feasible in a public water system.   
          Since some systems will need up to five years to achieve  
          compliance with existing standards, some Californians will be  
          exposed to chromium-6 in their drinking water for an additional  
          five years.  However, the provisions of this bill will help the  
          public by requiring water systems that are not in compliance  
          with the State MCL for chromium-6 to submit their plans for  
          compliance to the SWRCB in order to receive an extension to  
          achieve compliance with the State MCL regulation.  This bill  
          also helps public water systems meet compliance milestones, as  
          determined by the SWRCB, and it provides notice to the customers  
          of the public water system about the system's progress in its  
          compliance plan at least twice per year.  Also, under the  
          provisions of this bill, the SWRCB will require each water  
          system to provide notice to everyone served by the public water  
          system of the following: (1) the fact that the system has  
          implemented a plan to comply with the state MCL for chromium-6;  
          (2) basic information about chromium-6, the levels of the  
          contaminant found in the system's water, and the potential  
          harmful health effects of chromium-6 in drinking water; and (3)  
          the alternatives to the system's drinking water that are  
          available to the public.   








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          Recent Prior Legislation:  SB 351 ((Ortiz), Chap. 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.


          REGISTERED SUPPORT / OPPOSITION:



          Support

          Association of California Water Agencies 


          American Water Works Association 


          California Municipal Utilities Association 


          California Special Districts Association 


          California Water Association 


          Central Water Agency 


          City of Cathedral City 


          City of Indio 


          City of Rancho Mirage 








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          City of Watsonville 


          Coachella Valley Association of Governments 


          Coachella Valley Water District 


          Consumer Attorneys of California 


          Desert Valleys Builders Association 


          Desert Water Agency 


          Heber Public Utilities District 


          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 








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          Rio Linda-Elverta 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 on file




          Analysis Prepared by:Khadijah Hargett / JUD. / (916)  
          319-2334















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