Amended in Senate August 22, 2014

Amended in Senate July 1, 2014

Amended in Assembly April 23, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 2712

Introduced by Assembly Member Daly

(Principal coauthors: Assembly Members Allen and Wagner)

(Principal coauthor: Senator Correa)

(Coauthor: Assembly Member Quirk-Silva)

February 21, 2014

An act to amend Section 8 of the Orange County Water District Act (Chapter 924 of the Statutes of 1933), relating to hazardous materials.

LEGISLATIVE COUNSEL’S DIGEST

AB 2712, as amended, Daly. Hazardous materials: Orange County Water District: groundwater remediation.

Existing law, the Orange County Water District Act, prescribes the powers of the Orange County Water District. Existing law grants the district the power to perform actions useful or necessary to replenish the underground water basin within the district, or to augment and protect the quality of the common water supplies of the district. The act authorizes the district to conduct any investigations of the quality of the surface and groundwaters within the district that the district determines to be necessary and appropriate to determine whether those waters are contaminated or polluted. The act authorizes the district to expend available funds to perform any cleanup, abatement, or remedial work required under the circumstances which, in the determination of the board of directors, is required by the magnitude of the endeavor or the urgency of prompt action needed to prevent, abate, or contain any threatened or existing contamination of, or pollution to, the surface or groundwaters of the district, and requires the person causing or threatening to cause that contamination or pollution to be liable to the district to the extent of the reasonable costs actually incurred.

This bill would require the district, when cleaning up or containing contamination or pollution, abating the effects of the contamination or pollution, or, in the case of threatened contamination or pollution, taking other begin delete emergency, removal, end delete begin insert removal end insert or remedial action described above, to provide begin insert prior end insert notice of the action to a regional water quality control board and the Department of Toxic Substances Control, to meet and confer with agencies and any responsible party begin insert , as provided end insert , and to comply with the requirements of the National Contingency Plan, as prescribed. begin delete The end delete begin insert Among other things, end insert bill would state the intent of the Legislature that the district adopt a policy to address the process for groundwater remediation projects and that the district enter into a memorandum of understanding between it, the Department of Toxic Substances Control, the California Regional Water Quality Control Board, Santa Ana region, and the Orange County Health Care Agency to establish a process of review of the district’s proposed groundwater remediation projects.

The bill would declare that a special law is necessary and that a general law cannot be made applicable within the meaning of Section 16 of Article IV of the California Constitution.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

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

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

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert It is the intent of the Legislature that this act shall
improve the process used by the Orange County Water District
when it pursues any cost recovery actions for projects that involve
cleaning up or containing contamination or pollution. end insert

begin delete SECTION 1. end delete
begin insert SEC. 2. end insert   

It is the intent of the Legislature that the Orange County
Water District adopt a policy that would address the process for
groundwater remediation projects with the following goals:

(a) To provide increased clarity and certainty of the process for
all interested parties begin insert , including potential responsible parties end insert .

(b) To provide for the swift remediation of groundwater
contamination.

(c) To uphold the responsibilities of the district.

begin delete SEC. 2. end delete
begin insert SEC. 3. end insert   

It is further the intent of the Legislature that the Orange
County Water District enter into a memorandum of understanding
between the district, the Department of Toxic Substances Control,
California Regional Water Quality Control Board, Santa Ana
region, and the Orange County Health Care Agency to establish
a process for review of the district’s proposed groundwater
remediation projects.

begin delete SEC. 3. end delete
begin insert SEC. 4. end insert   

Section 8 of the Orange County Water District Act
(Chapter 924 of the Statutes of 1933), as added by Section 4 of
Chapter 802 of the Statutes of 1989, is amended to read:

Sec. 8.  

(a) The district may conduct any investigations of the
quality of the surface and groundwaters within the district that the
district determines to be necessary and appropriate to determine
whether those waters are contaminated or polluted.

(b) The district may expend available funds to perform any
cleanup, abatement, or remedial work required under the
circumstances which, in the determination of the board of directors,
is required by the magnitude of the endeavor or the urgency of
prompt action needed to prevent, abate, or contain any threatened
or existing contamination of, or pollution to, the surface or
groundwaters of the district. This action may be taken in default
of, or in addition to, remedial work by the person causing the
contamination or pollution, or other persons. The district may
perform the work itself, by contract, or by or in cooperation with
any other governmental agency.

(c) If, pursuant to subdivision (b), the contamination or pollution
is cleaned up or contained, the effects thereof abated, or, in the
case of threatened contamination or pollution, other necessary
begin delete emergency, removal, end delete begin insert removal end insert or remedial action is taken, the
person causing or threatening to cause that contamination or
pollution shall be liable to the district to the extent of the reasonable
costs actually incurred in cleaning up or containing the
contamination or pollution, abating the effects of the contamination
or pollution, or taking other remedial action. The amount of those
costs, together with court costs and reasonable attorneys’ fees,
shall be recoverable in a civil action by, and paid to, the district.
In any such action, the necessity for the cleanup, containment,
abatement, or remedial work, and the reasonableness of the costs
incurred therewith, shall be presumed, and the defendant shall
have the burden of proving that the work was not necessary, and
the costs not reasonable.

(d) When cleaning up or containing contamination or pollution,
abating the effects thereof, or, in the case of threatened
contamination or pollution, taking other necessary begin delete emergency,
removal, end delete begin insert removal end insert or remedial actions, the district shall do all of
the following:

(1) Provide begin insert prior end insert notice of the action to the office of the regional
water quality control board for the region in which the action shall
be taken and the Department of Toxic Substances Control.

(2) With respect to the contamination or pollution, meet and
confer with any agency that may be an administering agency and
make reasonable efforts to meet and confer with any responsible
party that is subject to an order or directive of the administering
agency begin insert before the district approves the action end insert .

(3) Comply with the requirements of the National Contingency
Plan (40 C.F.R. Part 300) that apply to begin delete the State of California end delete begin insert any
county, city, or water district end insert pursuant to Section begin delete 9607(a)(4)(A) end delete
begin insert 9607(a)(4)(B) end insert of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. Sec.
begin delete 9607(a)(4)(A)) end delete begin insert 9607(a)(4)(B)) end insert and with the
Carpenter-Presley-Tanner Hazardous Substance Account Act
(Chapter 6.8 (commencing with Section 25300) of Division 20 of
the Health and Safety Code).

begin delete SEC. 4. end delete
begin insert SEC. 5. end insert   

The Legislature finds and declares that a special law
is necessary and that a general law cannot be made applicable
within the meaning of Section 16 of Article IV of the California
Constitution because the Department of Toxic Substances Control,
the California Regional Water Quality Control Board, Santa Ana
region, and the certified unified program agency for the County
of Orange have provided and continue to provide oversight for
groundwater cleanups at many sites in north and central Orange
County, and the Orange County Water District has undertaken
investigations and planning for several potential groundwater
cleanup projects covering large parts of those same areas, creating
the potential for conflicting and inconsistent regulation of
businesses and landowners in those parts of Orange County that
may be responsible for conducting groundwater investigations and
cleanups at their sites.

begin delete SEC. 5. end delete
begin insert SEC. 6. end insert   

If the Commission on State Mandates determines that
this act contains costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.