BILL ANALYSIS Ó SB 385 Page 1 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 SB 385 Page 2 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 SB 385 Page 3 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: SB 385 Page 4 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. SB 385 Page 5 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 SB 385 Page 6 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 SB 385 Page 7 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).) SB 385 Page 8 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 SB 385 Page 9 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 SB 385 Page 10 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: SB 385 Page 11 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 SB 385 Page 12 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 SB 385 Page 13 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 SB 385 Page 14 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. SB 385 Page 15 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 SB 385 Page 16 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 SB 385 Page 17 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 SB 385 Page 18