Amended in Assembly May 1, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 2442

Introduced by Assembly Member Gordon

(Principal coauthor: Assembly Member Alejo)

February 21, 2014

An act to amend Section 13304 of the Water Code, relating to water quality.

LEGISLATIVE COUNSEL’S DIGEST

AB 2442, as amended, Gordon. Porter-Cologne Water Quality Control Act: remedial action: liability.

Existing law, the Porter-Cologne Water Quality Control Act, requires a person who discharges waste into the waters of the state in violation of waste discharge requirements or other order or prohibition issued by a California regional water quality control board or the State Water Resources Control Board to clean up the waste or to abate the effects of the waste. Existing law authorizes the regional board to expend available money to perform any cleanup, abatement, or remedial work required under those circumstances.

This bill would prohibit the state board, a regional board, and any authorized person, as defined, from being civilly begin delete or criminally end delete liable for any act or omission of the state board, regional board, or any authorized person in connection with any investigation, cleanup, abatement, or other remedial work, as defined, unless the act or omission was performed in a grossly negligent manner. The bill would require that these provisions apply to a claim against a public entity presented on or after January 1, 2015, or, if no claim is presented, to a cause of action in a civil complaint or a writ petition filed on or after January 1, 2015. The bill would also make various technical, nonsubstantive changes.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 13304 of the Water Code is amended to
read:

13304.  

(a) A person who has discharged or discharges waste
into the waters of this state in violation of any waste discharge
requirement or other order or prohibition issued by a regional board
or the state board, or who has caused or permitted, causes or
permits, or threatens to cause or permit any waste to be discharged
or deposited where it is, or probably will be, discharged into the
waters of the state and creates, or threatens to create, a condition
of pollution or nuisance, begin delete shall end delete begin insert shall, end insert upon order of the regional
board, clean up the waste or abate the effects of the waste, or, in
the case of threatened pollution or nuisance, take other necessary
remedial action, including, but not limited to, overseeing cleanup
and abatement efforts. A cleanup and abatement order issued by
the state board or a regional board may require the provision of,
or payment for, uninterrupted replacement water service, which
may include wellhead treatment, to each affected public water
supplier or private well owner. Upon failure of a person to comply
with the cleanup or abatement order, the Attorney General, at the
request of the board, shall petition the superior court for that county
for the issuance of an injunction requiring the person to comply
with the order. In the suit, the court shall have jurisdiction to grant
a prohibitory or mandatory injunction, either preliminary or
permanent, as the facts may warrant.

(b) (1) The regional board may expend available money to
perform any cleanup, abatement, or remedial work required under
the circumstances set forth in subdivision (a), including, but not
limited to, supervision of cleanup and abatement activities that, in
its judgment, is required by the magnitude of the endeavor or the
urgency for prompt action to prevent substantial pollution,
nuisance, or injury to any waters of the state. The action may be
taken in default of, or in addition to, remedial work by the waste
discharger or other persons, and regardless of whether injunctive
relief is being sought.

(2) The regional board may perform the work itself, or with the
cooperation of any other governmental agency, and may use rented
tools or equipment, either with operators furnished or unoperated.
Notwithstanding any other provisions of law, the regional board
may enter into oral contracts for the work, and the contracts,
whether written or oral, may include provisions for equipment
rental and in addition the furnishing of labor and materials
necessary to accomplish the work. The contracts are not subject
to approval by the Department of General Services.

(3) The regional board shall be permitted reasonable access to
the affected property as necessary to perform any cleanup,
abatement, or other remedial work. The access shall be obtained
with the consent of the owner or possessor of the property or, if
the consent is withheld, with a warrant duly issued pursuant to the
procedure described in Title 13 (commencing with Section
1822.50) of Part 3 of the Code of Civil Procedure. However, in
the event of an emergency affecting public health or safety, the
regional board may enter the property without consent or the
issuance of a warrant.

(4) The regional board may contract with a water agency to
perform, under the direction of the regional board, investigations
of existing or threatened groundwater pollution or nuisance. The
agency’s cost of performing the contracted services shall be
reimbursed by the regional board from the first available funds
obtained from cost recovery actions for the specific site. The
authority of a regional board to contract with a water agency is
limited to a water agency that draws groundwater from the affected
aquifer, a metropolitan water district, or a local public agency
responsible for water supply or water quality in a groundwater
basin.

(5) (A) The state board, regional board, and any authorized
person shall not be civilly begin delete or criminally end delete liable for any act or
omission of the state board, regional board, or authorized person
in connection with any investigation, cleanup, abatement, or other
remedial work, unless the act or omission was performed in a
grossly negligent manner.

(B) The following applies for the purposes of this paragraph:

(i) “Authorized person” means any of the following:

(I) An employee or independent contractor of the state board
or regional board.

(II) A person from whom investigation, cleanup, abatement, or
other remedial work is contracted by the state board or regional
board.

(III) An employee or independent contractor of a person
described in subclause (I) or (II).

(ii) “Investigation, cleanup, abatement, or other remedial work”
includes investigation, cleanup, abatement, or other remedial work
performed pursuant to this section or Section 13267, or corrective
action performed pursuant to Section 25296.10 or 25299.36 of the
Health and Safety Code.

(C) It is not the intent of this paragraph to do any of the
following:

(i) Impair any cause of action by the state board or regional
board against any person, including, but not limited to, a cause of
action for breach of contract or indemnity.

(ii) Limit the state board’s or regional board’s authority over
any person.

(iii) Limit any other applicable defenses to liability.

(c) (1) If the waste is cleaned up or the effects of the waste are
abated, or, in the case of threatened pollution or nuisance, other
necessary remedial action is taken by a governmental agency, the
person or persons who discharged the waste, discharges the waste,
or threatened to cause or permit the discharge of the waste within
the meaning of subdivision (a), are liable to that governmental
agency to the extent of the reasonable costs actually incurred in
cleaning up the waste, abating the effects of the waste, supervising
cleanup or abatement activities, or taking other remedial action.
The amount of the costs is recoverable in a civil action by, and
paid to, the governmental agency and the state board to the extent
of the latter’s contribution to the cleanup costs from the State Water
Pollution Cleanup and Abatement Account or other available funds.

(2) The amount of the costs constitutes a lien on the affected
property upon service of a copy of the notice of lien on the owner
and upon the recordation of a notice of lien, that identifies the
property on which the condition was abated, the amount of the
lien, and the owner of record of the property, in the office of the
county recorder of the county in which the property is located.
Upon recordation, the lien has the same force, effect, and priority
as a judgment lien, except that it attaches only to the property
posted and described in the notice of lien, and shall continue for
10 years from the time of the recording of the notice, unless sooner
released or otherwise discharged. No later than 45 days after
receiving a notice of lien, the owner may petition the court for an
order releasing the property from the lien or reducing the amount
of the lien. In this court action, the governmental agency that
incurred the cleanup costs shall establish that the costs were
reasonable and necessary. The lien may be foreclosed by an action
brought by the state board on behalf of the regional board for a
money judgment. Money recovered by a judgment in favor of the
state board shall be deposited in the State Water Pollution Cleanup
and Abatement Account.

(d) If, despite reasonable effort by the regional board to identify
the person responsible for the discharge of waste or the condition
of pollution or nuisance, the person is not identified at the time
cleanup, abatement, or remedial work is required to be performed,
the regional board is not required to issue an order under this
section.

(e) “Threaten,” for purposes of this section, means a condition
creating a substantial probability of harm, when the probability
and potential extent of harm make it reasonably necessary to take
immediate action to prevent, reduce, or mitigate damages to
persons, property, or natural resources.

(f) Replacement water provided pursuant to subdivision (a) shall
meet all applicable federal, state, and local drinking water
standards, and shall have comparable quality to that pumped by
the public water system or private well owner prior to the discharge
of waste.

(g) (1) A public water supplier or private well owner receiving
replacement water by reason of an order issued pursuant to
subdivision (a), or a person or entity who is ordered to provide
replacement water pursuant to subdivision (a), may request
nonbinding mediation of all replacement water claims.

(2) If begin delete so end delete requested, the public water suppliers receiving the
replacement water and the persons or entities ordered to provide
the replacement water, within 30 days of the submittal of a water
replacement plan, shall engage in at least one confidential
settlement discussion before a mutually acceptable mediator.

(3) Any agreement between parties regarding replacement water
claims resulting from participation in the nonbinding mediation
process shall be consistent with the requirements of any cleanup
and abatement order.

(4) A regional board or the state board is not required to
participate in any nonbinding mediation requested pursuant to
paragraph (1).

(5) The party or parties requesting the mediation shall pay for
the costs of the mediation.

(h) As part of a cleanup and abatement order that requires the
provision of replacement water, a regional board or the state board
shall request a water replacement plan from the discharger in cases
where replacement water is to be provided for more than 30 days.
The water replacement plan is subject to the approval of the
regional board or the state board begin delete prior to end delete begin insert before end insert its implementation.

(i) A “water replacement plan” means a plan pursuant to which
the discharger will provide replacement water in accordance with
a cleanup and abatement order.

(j) This section does not impose any new liability for acts
occurring before January 1, 1981, if the acts were not in violation
of existing laws or regulations at the time they occurred.

(k) Nothing in this section limits the authority of a state agency
under any other law or regulation to enforce or administer any
cleanup or abatement activity.

(l) The Legislature declares that the amendments made to
subdivision (a) by Chapter 614 of the Statutes of 2003 do not
constitute a change in, but are declaratory of, existing law.

(m) Paragraph (5) of subdivision (b) shall apply to a claim
presented pursuant to Part 3 (commencing with Section 900) of
Division 3.6 of Title 1 of the Government Code on or after January
1, 2015, or, if no claim is presented pursuant to those provisions,
to a cause of action in a civil complaint or writ petition filed on or
after January 1, 2015.