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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