BILL ANALYSIS �
AB 2442
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Jerry Hill, Chair
2013-2014 Regular Session
BILL NO: AB 2442
AUTHOR: Gordon
AMENDED: June 4, 2014
FISCAL: No HEARING DATE: June 18, 2014
URGENCY: No CONSULTANT: Rachel Machi
Wagoner
SUBJECT : PORTER COLOGNE WATER QUALITY CONTROL ACT: REMEDIAL
ACTION: LIABILITY
Existing law :
1)Under the Porter-Cologne Water Quality Control Act
(Porter-Cologne), 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 (regional
boards) or the State Water Resources Control Board (SWRCB)
to clean up the waste or to abate the effects of the waste.
2)Authorizes the SWRCB and regional boards to investigate
actual or suspected waste discharges that threaten water
quality. Provides that if no viable responsible party (RP)
or discharger is identified for a polluted site, the SWRCB
or regional boards may contract for the cleanup.
3)Authorizes SWRCB and the regional boards to require a
person, who has discharged waste so as to cause or threaten
to cause pollution or nuisance, to clean up the waste and
abate the effects of the discharge.
4)Provides liability immunity for the Department of Toxic
Substances Control (DTSC) to enter upon any lands for the
purpose of taking removal or remedial action.
5)Under the Polanco Act, authorizes a local agency to
investigate and clean up releases or spills within the
boundaries of the local agency, and provides immunity from
further liability to the local agency and any person who
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enters into an agreement with that local agency to develop
the property as well as future property owners. Defines
"local agency" as a county, a city, a city and county, or a
housing authority.
This bill provides SWRCB and the regional boards with limited
protection from civil liability related to investigating and
cleaning up water pollution.
COMMENTS :
1) Purpose of Bill . According to SWRCB, the sponsor of this
legislation, "Currently, the Water Boards often are
reluctant to fully exercise their authority to investigate
and/or clean up water pollution problems that may threaten
public health and the environment due to liability
concerns.
"Under current law, SWRCB can perform, or contract for, the
investigation, cleanup, abatement, or remedial work that is
required to address waste discharges that have polluted, or
threaten to pollute, waters of the State? However, the
Water Boards often are reluctant to exert their authority
to investigate and/or clean up water pollution problems
that may threaten public health or the environment due to
liability concerns including: 1) potential liability
claims that the Water Boards' actions at a site makes them
a responsible party and that their limited actions at a
site do not fully protect all affected persons, 2) claims
for reimbursement of incidental property damage, or 3)
potential trespass actions that may arise due to the Water
Boards' investigations or cleanups. Thus, even when the
Water Boards are faced with a severe pollution problem and
there is no apparent financially viable responsible party,
the Water Boards are likely to decline to act due to
liability concerns."
2) Penn Mine Case . The liability for SWRCB and the regional
boards for their actions in cleaning up toxic waste sites
was highlighted in the efforts to control runoff from the
Penn Mine. The Penn Mine is an abandoned copper and zinc
mine adjacent to the Mokelumne River that operated
intermittently from the 1860s through the 1950s. In the
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1960s, the East Bay Municipal Utility District (EBMUD)
acquired part of the Penn Mine property to build the
Comanche Reservoir. In 1978, EBMUD and the Central Valley
Regional Water Quality Control Board constructed a
remediation project in an attempt to reduce the impacts
caused by acid mine drainage from the abandoned mine. The
Central Valley regional board and EBMUD were subsequently
found jointly responsible under the Clean Water Act for the
acid mine drainage due to their operation of the
remediation project. (Committee To Save Mokelumne River v.
East Bay Mun. Utility Dist. (9th Cir. 1993) 13 F.3d 305.)
In the appeal of the court order on the Penn Mine case, the
court pointed out that unlike the federal Comprehensive
Environmental Response, Compensation and Liability Act,
which provides a statutory liability exemption, the federal
Clean Water Act contains no such exemption. Given the
absence of any statutory authority to exempt the Board or
District from liability under the Clean Water Act, the
district court was correct in establishing state liability
of their cleanup activities. While state law cannot
provide liability relief from federal requirements, there
would still be liability under federal law for cleanups
that result in unauthorized discharges to surface water
bodies that are covered under the Clean Water Act (such as
in the case of Penn Mine). However, there are waters that
are not protected under the Clean Water Act but which are
protected under Porter-Cologne, such as groundwater. In
those cases, there would only be potential liability under
state law for actions that we may take to clean up, or
partially clean up, water contamination.
3) State Remediation Intervention . SWRCB, regional boards,
and DTSC have statutory authority and responsibility for
the oversight of remediating contaminated water and land in
California.
The boards or department generally enter into a cleanup and
abatement order with RPs to require the RP to conduct or
contract for the cleanup of the contaminated site.
When there is not a viable RP or the RP is found unable to
pay for the remedial action, contaminated brownfield sites
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languish potentially causing economic, environmental and
public health harm.
As funds are available, and sites are identified that are
in need of state intervention, the state's cleanup agencies
(DTSC, SWRCB and regional boards) investigate and cleanup
contaminated sites to prevent further environmental and
human health harm.
An example of this could be contamination of water by dry
cleaning solvents. The primary solvent used in dry
cleaning is Perchloroethylene (Perc). Perc can get into
the air, water and ground during the cleaning,
purification, and waste disposal phases of dry cleaning.
Perc can seep through the ground and contaminate surface
water, groundwater, and potentially drinking water. A small
amount of perc can contaminate a large amount of water and
people can be exposed by drinking or using the water.
Long-term exposure to perc can pose a potential human
health hazard to reproduction and development, and to the
kidney, liver, immune and hematologic systems, as well as
the human nervous system.
The remediation of this type of contamination is often
costly and has the potential to do significant damage to
groundwater plumes if left unaddressed. In this case, a
regional board may deem this cleanup such a priority that
the regional board will conduct the remedial action.
However, under current law SWRCB and the regional board
cite potential liability as an RP, under Porter-Cologne, as
a reason to not undergo such a cleanup. Because SWRCB and
the regional boards, unlike DTSC, do not have clear,
explicit statutory liability protection, the boards see the
opportunity for litigation against the state as an
impediment to intervening.
Recognizing the value in having government agencies ensure
that brownfield sites are remediated, and because the
agencies are not responsible for causing the contamination,
but rather are attempting to remedy the problem, the
Legislature has provided DTSC and local governments (under
the Polanco Act) to enjoy broad liability immunity when
initiating or conducting a cleanup of a brownfield.
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This bill would provide SWRCB and regional boards with
explicit protection from civil liability related to
investigating and cleaning up water pollution, by removing
a barrier in current law that deters the water boards from
taking actions to investigate, prevent, or clean up
pollution.
4) Previous Legislation .
AB 440 (Gatto), Chapter 588, Statutes of 2013, amends the
Polanco Act to authorize local governments to investigate
and cleanup a release of hazardous materials in a blighted
area, as determined by the local agency, and provides
immunity from further liability to the local agency and any
person who enters into an agreement with that local agency
to develop the property as well as future property owners.
5) Double Referral to Senate Judiciary Committee . If this
measure is approved by the Senate Environmental Quality
Committee, the do pass motion must include the action to
re-refer the bill to the Senate Judiciary Committee.
SOURCE : State Water Resources Control Board
SUPPORT : None on file
OPPOSITION : None on file