BILL ANALYSIS Ó
AB 938
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2011-2012 Regular Session
BILL NO: AB 938
AUTHOR: V.M. Perez
AMENDED: May 4, 2011
FISCAL: Yes HEARING DATE: June 27, 2011
URGENCY: No CONSULTANT: Randy Pestor
SUBJECT : REGULATORY REQUIREMENTS
SUMMARY :
Existing law :
1) Under the California Safe Drinking Water Act, requires
public water system operators to provide public notice to
users under certain circumstances (e.g., failure to comply
with any primary drinking water standard that represents an
imminent danger to water system users, local health
department recommends notice for users to avoid internal
consumption of the water supply and to use bottled water
due to a chemical contamination problem that may pose a
health risk).
2) Under the Safe Drinking Water State Revolving Fund Law of
1997:
a) Sets the maximum "planning grant" for a participating
public water system's costs for planning, engineering
studies, environmental documentation, and design of a
project at no more than $500,000. Maximum amounts are
also set for construction grants.
b) Requires total funding for planning, engineering
studies, project design, and construction costs, whether
in the form of a loan or grant, to be determined by an
assessment of affordability using criteria established
by the Department of Public Health (DPH).
This bill :
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1) Under the California Safe Drinking Water Act:
a) Requires public water system operator notices given
in accordance with the above requirements to also:
i) Be provided in English, Spanish, and in the
language spoken by any non-English speaking group
that exceeds 10% of persons served by the public
water system.
ii) Contain a telephone number or address where
residents may contact the public water system for
assistance.
iii) Contain information regarding the importance
of the notice and a telephone number or address
where the public water system will provide either a
translated copy of the notice or assistance in the
appropriate language for each group that speaks a
language other than English or Spanish and that
exceeds 1,000 residents or 10% of the persons
served by the public water system, whichever is
less.
b) Provides that after July 1, 2012, it must be presumed
that the above notice has been properly given with
respect to the language of notification if the public
water system has utilized the data available through the
American Community Survey of the U.S. Census Bureau and
the county registrar.
c) Authorizes and encourages a public water system to
provide notice through foreign language media outlets,
in addition to nonwritten notification provided for in
the public water system's emergency notification plan.
2) Under the Safe Drinking Water State Revolving Fund Law of
1997, adds "environmental documentation" to the list of
costs to be determined by an assessment of affordability
using DPH criteria.
COMMENTS :
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1) Purpose of Bill . According to the author, "Public
notification to residents regarding contaminated drinking
water is necessary to prevent illness and disease and
protect public health. When a public water system sends a
public notification only in English to non-English
speakers, the risks to public health persist. If public
notices are not provided in the language spoken by the
impacted community, residents may not know that the water
in their homes is unsafe and what precautions are necessary
to protect the health and safety of their family."
The author believes that "AB 938 addresses an urgent problem
in some California communities where the water is not safe
to drink yet customers are receiving notifications that
they do not understand. All Californians have the right to
know when it is not safe to drink their water."
The author notes that AB 938 also "makes clarifying amendments
to the Safe Drinking Water State Revolving Fund language to
correct an oversight in the law related to the list of
costs to be determined in affordability assessments for
awards from the Fund."
2) Revising notice requirements under the California Safe
Drinking Water Act . Regulations currently require public
notice to "contain information in Spanish regarding the
importance of the notice, or contain a telephone number or
address where Spanish-speaking residents may contact the
water system to obtain a translated copy of the public
notice or assistance in Spanish." This regulatory
requirement similarly applies, with additional information
(e.g., information regarding importance of the notice or a
telephone number or address where residents may contact the
public water system for translated information), to each
non-English speaking group other than Spanish-speaking that
exceeds 1,000 residents or 10% of the residents in the
community served, whichever is less. Also, the regulations
contain other requirements relating to, for example, how
the notice should be displayed and the notice font size.
(22 Cal. Code of Regs. §66465).
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The author wants to place public water system operator public
notice requirements in statute due to concerns about the
adequacy of current regulatory notice requirements and the
length of time expected to revise current regulations.
Under AB 938, the public notice would be provided in
English, Spanish, and in the language spoken by any
non-English speaking group that exceeds 10% of persons
served by the public water system. Additional information
(e.g., information regarding importance of the notice and a
telephone number or address where residents may contact the
public water system for translated information) must also
be provided for each group speaking a language other than
English or Spanish exceeding 1,000 residents or 10% of
persons served by the public water system, whichever is
less.
3) Opposition and support concerns . According to the
Association of California Water Agencies, California
Municipal Utilities Association, and California Water
Association, this bill "would greatly expand translation
requirements for public water systems from current
regulations, which have only been in place since 2007 . . .
In large metropolitan areas, this could mean translating
the notice into more than 20 languages within 24 hours. A
water emergency could take place in the middle of the night
on a weekend, and complying with this new provision would
be very challenging." These organizations would like
amendments relating to the "safe harbor" provision (page 4,
lines 31 to 34, inclusive) to further address information
sources, while also addressing concerns over liability for
translation errors.
According to the California Rural Legal Assistance Foundation
in supporting AB 938, "Water providers are currently
required to know the language of their customer. AB 938 is
addressing an urgent problem in some water systems where
proper notification is not given to residents when their
water is not safe to drink. It is important that ALL
Californians have the Right-To-Know when it is not safe to
drink their water. AB 938 only applies to serious drinking
water violations. Most water systems do not have these
violations, because they provide safe drinking water."
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4) Related legislation . AB 1438 (Conway) Chapter 531,
Statutes of 2009, among other things, sets a limit of
$500,000 for planning, engineering studies, environmental
documentation, and design of a single project. Current law
also requires total funding for planning, engineering
studies, project design, and construction costs, whether in
the form of a loan or grant, to be determined by an
assessment of affordability using criteria established by
DPH. AB 1438, however, did not add "environmental
documentation" to the affordability assessment requirement.
AB 2669 (V.M. Perez) of 2010 revised notice requirements under
the California Safe Drinking Water Act and clarified
planning grant provisions under the Safe Drinking Water
State Revolving Fund Law of 1997 by adding "environmental
documentation" to the affordability assessment requirement.
AB 2669 failed on the Senate Floor August 31, 2010 (15-8)
( NOTE : the author had already decided that the bill
should not be taken up on the Senate Floor because he
wanted to continue working with opponents on the notice
issues prior to the 2011-12 Session, which the Senate Floor
Manager apparently did not know).
5) Clarification needed . AB 938 contains a presumption that
the notice required by the bill has been properly given
with respect to the language of notification if the public
water system has utilized the data available through the
American Community Survey of the U.S. Census Bureau and the
county registrar. Any such presumption should relate to
the sources of information used to determine the language
of notification - not that the notice was properly given,
and a reference to the county registrar should be stricken.
The author and some opponents are also concerned about the
need for a presumption (or "safe harbor") provision
relating to translation efforts and that the above
requirements should apply to a Tier 1 public notice that
must be provided in certain circumstances.
Clarification is also needed regarding §116450(h)(3) (page 4,
lines 25 and 26) regarding notice and the percentage of
persons served by the public water system (strike "or 10
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percent of the persons served by the public water system,
whichever is less" and insert "but is less than 10 percent
of the persons served by the public water system"
referenced in the previous paragraph).
Finally, clarification is needed in the various subdivisions
and paragraphs of the amendments.
SOURCE : California Rural Legal Assistance Foundation,
Clean Water Action, Community Water Center,
Environmental Justice Coalition for Water
SUPPORT : Asian Americans for Civil Rights & Equality,
California League of Conservation Voters,
California Pan-Ethnic Health Network, Catholic
Charities Diocese of Stockton, Coachella Valley
Water District, Environmental Working Group,
Food and Water Watch, Having Our Say, Planning
and Conservation League, Natural Resources
Defense Council, Southern California Watershed
Alliance, Unitarian Universalist Legislative
Ministry Action Network California, Urban
Semillas, The Utility Reform Network, Unitarian
Universalist Service Committee, Winnemem Wintu
Tribe, Women's International League for Peace
and Freedom,
OPPOSITION : Association of California Water Agencies,
California Municipal Utilities Association,
California Water Association, California Water
Service Company, Cucamonga Valley Water
District